5. Must make a motion to obtain an order of attachment
a. Affidavit submitted in support of attachment motion must show that one of plaintiff’s causes of action fall into one of the five categories above.
b. Plaintiff must also show a probability of success on the merits of the cause of action.
c. Plaintiff must post an undertaking of at least $500
d. Attachment motion can be made on notice or ex parte.
e. Time limits
– If the initial motion is made ex parte, a
motion on notice to confirm the ex parte order of
attachment must be made in a timely fashion
1st category (4, a, above)– 10 days from date of levy
Other Categories – 5 days from date of levy
w the summons must also be served 60 days after the
order of attachment is entered and w/in 120 days of
filing of the summons and complaint
VIII. THIRD PARTY PRACTICE
A. Impleader
1. Usually impleader is based on a claim for indemnity or contributions:
indemnity- allows one party to shift 100% of the fault to
another party
2. Three ways that a claim for indemnity or contribution can be asserted:
a. separate action:
Judgment Debtor vs. Third Party
b. cross-claim:
Plaintiff v A & B; A & B assert cross claims against
each other in the action
c. impleader:
Plaintiff v A; A then brings a third party action
against B - Plaintiff v A v B
3. Mechanics-
for commencing a third party action
Two steps:
(1) File a Summons and Third-Party complaint with the court.
(2) Within 120 days of the filing, serve the Summons, the third-party complaint and all prior pleadings on the third-party defendant with a copy to the plaintiff.
4. Third-party defendant must serve a third-party answer
(1) right to indemnity can be created by contract
Example-General Contractor on a construction
project can sue Subcontractor, whose work
injured plaintiff, based on an indemnification
provision in a contract.
(2) right to indemnity can be implied in law
Example-a retailer held liable for selling a
defective product is entitled to indemnity from
a manufacturer
(3) right to indemnity can be created through vicarious liability
Example – in NY, the owner of a car is
vicariously liable for damages caused by
negligent driving of any person to whom the
owner has given permission to drive the car. An
owner who pays a victim is entitled to
indemnity from the driver.
b. contribution
(1) joint and several tort liability - general rule in New York is that each tortfeasor is liable to the plaintiff for the full 100%, of plaintiff’s damages, regardless of an individual tortfeasor’s degree of fault.
(2) formula for contribution
on a contribution claim, each negligent party is
responsible for their own share of fault, but
only to the extent that the party seeking
contribution has paid the plaintiff in an amount
above her equitable share of fault.
(3) successive tortfeasor
Example – manufacturer negligently designs
car, and the negligence causes an accident.
Plaintiff is subsequently treated by doctor, who
commits medical malpractice. The doctor is not
a joint tortfeasor, but rather a successive
tortfeasor who is liable for her own negligence,
but not that of the manufacturer. The
manufacturer is, however, responsible for the
negligence of successive tortfeasors. If the
manufacturer pays plaintiff for the damages
caused by the doctor, the manufacturer can
seek contribution from the doctor for that
amount.
6. Statute of limitations in impleader actions
contribution or indemnity – 6 years from the
payment for which indemnity or contribution is sought
7. Workers Compensation Law § 11 – Grave Injury Requirement in Third-party Actions
Workers Compensation Law § 11 states:
An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a “grave injury” which shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss
[T]he terms indemnity and contribution shall not include a claim or cause of action for contribution or indemnification based upon a provision in a written contract entered into prior to the accident. . . .
To bring a third party action against the plaintiff’s
employer, the third party plaintiff must demonstrate
that plaintiff sustained a grave injury as defined in
WCL section 11. If third party plaintiff cannot sustain
this burden, the employer/ third party defendant can
make a motion to dismiss. The grave injury
requirement does not apply to actions against
employers based on contractual indemnity.
Remember, also, that the grave injury requirement
only applies to third party actions against the
plaintiff’s employer.
a. “[L]oss of multiple fingers”
1. Castro v. United Container Machinery Group Inc., 96 N.Y.2d 398, 736 N.Y.S.2d 287 (2001)
The amputation of the tips of fingers on one hand does not constitute “loss of multiple fingers” and, therefore, is not a grave injury under § 11 of the Workers Compensation Law. The Court of Appeals held that the term “loss of multiple fingers” cannot sensibly be read to mean partial loss of multiple fingers.
2. Meis v. ELO Organization, LLC, 97 N.Y.2d 714, 740 N.Y.S.2d 689 (2002)
The loss of use of the thumb is not, standing alone, a “grave injury.” Plaintiff failed to demonstrate that due to the amputation of the thumb, he suffered a “permanent and total loss of use” of the hand. “Plaintiff’s argument that the loss of his thumb automatically renders his hand totally useless is unavailing.”
3. Vincenty v. Cincinnati Inc., 14 A.D.3d 392 (1st Dep’t 2005) Plaintiff’s pinkie and ring fingers were completely
amputated in a workplace accident. Shortly after the accident, however, the fingers were surgically reattached so that plaintiff regained their use, at least partially. The court holds that “because the fingers and their use were not permanently and totally lost, plaintiff did not sustain a ‘grave injury’ within the meaning of Workers’
Compensation Law § 11.”
The statute, however, only requires “loss of multiple fingers,” not “permanent loss.”
b. “[L]oss of an index finger”
Castillo v. 711 Group, Inc., 10 N.Y.3d 735 (2008)
The denial of third-party defendant’s motion for summary judgment dismissing the third-party action was affirmed by the Appellate Division. In addition, the Appellate Division searched the record and awarded plaintiff and defendant/third-party plaintiff partial summary judgment on the issue of whether plaintiff
sustained a grave injury.
The Court of Appeals affirmed. Citing its decision in Castro, the Court noted that “plaintiff demonstrated that he lost both
interphalangeal joints of his left index finger, leaving a ‘painful amputation stump’ that required two corrective surgeries to desensitize.” This established the “loss of an index finger” within the meaning of Workers’ Compensation Law § 11. The Court also noted that reattachment was contraindicated.
IX. ARBITRATION
A. Definition - a dispute resolution procedure involving private resolution of a dispute.
Two parties can agree to submit an existing dispute or a future
dispute to private arbitration. New York courts will honor
arbitration agreements if they are in writing and if the dispute
B. Court Intervention
New York has a strong public policy favoring arbitration !!!!!
If there is a valid agreement to arbitrate, there are only five areas where a court can decide an issue instead of an arbitrator:
(1) whether the dispute falls within the scope of the agreement to arbitrate
(2) the statute of limitations
(3) the nonperformance of an express condition precedent to arbitration
(4) public policy limitations
