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1 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 contribution-involves a sharing of the loss, or an apportionment among multiple tortfeasors 37

2 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 5. Substantive law questions of impleader: a. indemnity 38

3 (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 b. contribution 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. (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. 39

4 (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 Thirdparty 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 of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability

5 [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. Could the loss of use of the thumb constitute permanent 41

6 and total loss of use of the hand in a particular case? 42

7 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 falls within the scope of the agreement to arbitrate. 43

8 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 (5) fraud in the inducement of the arbitration clause. 44

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