NOVEMBER 2004

"PRIOR WRITTEN NOTICE"

IS SATISFIED BY A WRITING DONE

INTERNALLY BY A CITY AGENCY

In Bruni v. City of New York, 2 N.Y.3d 319, 778 N.Y.S.2d 757 (2004), a road defect was written up after an inspection by a branch of the city=s environmental protection department.  Sometime after the written report, the plaintiff fell as a result of the defect.  New York=s highest court held that this written notice was sufficient under the so-called Apot hole law@ which requires such notice as a prerequisite to recovery from a municipality.  In reaching this decision, the Court of Appeals rejected the city=s argument that the prior written notice must come from an external, not an internal, source. 

 WORKERS= COMPENSATION RECOVERY

DOES NOT BAR TORT SUIT AGAINST

FELLOW EMPLOYEE FOR INTENTIONAL ACT

  In Hanford v. Plaza Packing Corp., 2 N.Y.3d 348, 778 N.Y.S.2d 768 (2004), the New York Court of Appeals held that an action for an intentional tort against a co-employee is not barred by the plaintiff=s receipt of Workers= Compensation benefits.  In Hanford, the plaintiff alleged that the defendant co-employee concealed a video camera in a locker room on the premises of the employer in an unsuccessful attempt to tape the plaintiff while she changed her clothes. The plaintiff applied for and received Workers= Compensation benefits arising out of the incident.

 The plaintiff then sued the employer and the co-employee individually. The claim against the employer was dismissed on the basis of the exclusivity provisions of the Workers= Compensation Law '29. The Court of Appeals decided that the employee was not entitled to the same protection because Aan employee who commits an intentional tort outside the scope of his employment is not protected by Workers= Compensation Law '29.@ Hanford, 778 N.Y.S.2d at 769.

 NEW YORK COURT OF APPEALS HOLDS

THAT DISCLOSURE OF A "COPY" OF

SURVEILLANCE VIDEOTAPE IS SUFFICIENT

 In Zegarelli v. Hughes, 3 N.Y.3d 64, 781 N.Y.S.2d 488 (2004), the defendant turned over a copy of surveillance footage on VHS format.  During the trial, the plaintiff=s lawyer objected to the admissibility of this tape claiming that he had not had an opportunity to see the original tape.  The lower court precluded the tape despite the testimony of the defendant=s investigator that the tape had not been edited in the copying process.  The Court of Appeals reversed holding that the defendant=s disclosure of a copy is sufficient so long as the original is available for the plaintiff=s inspection.  In this case, the court noted that the plaintiff=s lawyer did have ample opportunity to inspect the original tape but did not do so.

 John N. Philipps, Jr.