The Court of Appeals’ October Session: Arguments of Interest for October 18, 2017

The Court of Appeals’ October Session continues back at Court of Appeals Hall in Albany on October 18, 2016. Of the cases on the argument schedule (the Court’s case summaries can be found here), two are of particular interest:

No. 172           Flo & Eddie, Inc. v Sirius XM Radio, Inc.

Does New York recognize a common law right of public performance in sound recordings? That’s the question that Second Circuit certified to the Court of Appeals in Flo & Eddie, a federal copyright infringement class action against Sirius XM.  The federal Copyright Act does not afford protection to pre-1972 recordings.  Flo & Eddie, therefore, alleged that Sirius XM infringed its copyright right of public performance under New York law in the recordings of the 1960s rock band “The Turtles” by broadcasting the recordings over the air without paying royalties.  Because resolution of this certified question will have great economic consequences, and no New York court appears to have addressed whether New York law recognizes a common law right of public performance to control when and where sound recordings may be played, the Court of Appeals will be asked to resolve this issue of first impression.

A copy of the Second Circuit’s decision certifying the question to the Court of Appeals may be found here.

No. 174           Newman v RCPI Landmark Properties, LLC

In this personal injury action, Newman, a security guard at Rockefeller Center, fell and injured his knee while descending a stack of plastic milk crates that had been arranged as makeshift steps from the platform of a loading dock to the floor. Although a wall-mounted ladder was provided to access the floor, Newman testified that he didn’t know it was there because a truck was parked in front of it, and he thought that the crates were the only way between the loading dock and the floor.  Although Supreme Court found an issue of fact on summary judgment, the Appellate Division, First Department disagreed and dismissed the suit.  The Court held that Newman’s choice to use the milk crates to get to the floor in lieu of the ladder was the sole cause of his injuries because Newman admitted that he followed his partner down the milk crates and didn’t look for a different means of egress.  The Court of Appeals is asked to resolve whether the availability of the wall-mounted ladder at the site bars Newman’s personal injury claim as a matter of law, even though he testified that he didn’t know it was there and he believed that the milk crates were his only means to access the floor.

A copy of the Appellate Division, First Department’s decision below may be found here.

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