Wade Clark Mulcahy LLP

News Untimely Disclaimer Upheld When Based On Operations Classification (NY) January 29, 2016 < Back Share to: The declarations pages on insurance policies for contractors and construction companies generally include information about the type of projects being insured and the scope of the insured’s work. This information is important in the classification/rating process but coverage under the policy is also often tied to those operations listed. In Black Bull Contr., LLC v. Indian Harbor Ins. Co., a New York appellate court was faced with determining whether a disclaimer predicated on the descriptions of work in the declarations were based on an "exclusion" to coverage subject to NY Ins. Law §3420(d)(2)’s timely disclaimer requirement for bodily injury claims. A disclaimer pursuant to § 3420(d)(2) is unnecessary when a claim falls outside the scope of the policy's coverage portion, as opposed to a disclaimer pursuant to a policy exclusion. Indian Harbor issued a commercial general liability policy to Black Bull. An endorsement to the CGL coverage form provided: "This insurance applies only to operations that are classified or shown on the Declarations or specifically added by endorsement to this Policy." The declarations page set forth four classifications: (1) "Carpentry — interior"; (2) "Dry Wall or Wallboard Installation"; (3) "Contractors — subcontracted work — in connection with construction, reconstruction, repair or erection of buildings — Not Otherwise Classified"; and (4) "Contractors — subcontracted work — in connection with construction, reconstruction, repair or erection of buildings — Not Otherwise Classified — uninsured/underinsured". Black Bull was hired to perform work on a building in Long Island City owned by non-party United. Luis Mora, a Black Bull employee, was injured when he was struck by a piece of concrete from the chimney while using a jackhammer to demolish it. Mora sued United, who then commenced a third-party action against Black Bull. Black Bull (and United, as an additional insured) sought coverage from Indian Harbor. After a delay of more than two months from receipt of the notice of claim, Indian Harbor disclaimed coverage on the ground that demolition work by Black Bull at the time of Mora's injury was not within any of the four classifications of work covered by the policy. Black Bull then commenced a declaratory judgment action against Indian Harbor seeking coverage for itself and for United for the Mora lawsuit. Black Bull claimed that the untimely disclaimer obligated Indian Harbor to provide a defense. The Appellate Division, First Department, held that the classification limitations of coverage merely defined the activities that were included within the scope of coverage "in the first instance" and did not constitute exclusions from coverage that would otherwise exist. As the demolition work in which Mora was engaged did not fall within any of the classifications in the policy declarations, neither Black Bull nor United was covered for under Black Bull's policy. Thus, notwithstanding the untimely disclaimer, Indian Harbor did not owe coverage. Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information.   Previous Next Contact

News Jury-Rigged Saw of Independent Contractor Cuts Down Labor Law 241(6) Claim (NY) March 17, 2016 < Back Share to: Plaintiffs asserting Labor Law § 241(6) claims must show that their injuries were proximately caused by a violation of an Industrial Code rule or regulation. One of the primary defenses available to defendants in such actions is that the worker-plaintiff was the “sole proximate cause” of the alleged injuries. In Scoz v J&Y Elec. & Intercom Co. Inc plaintiff, an independent contractor, received hand injuries as he was cutting flooring for installation. During discovery, plaintiff testified that rather than use a purpose-built table saw, he instead used a jury-rigged device he assembled himself from an upside-down circular saw. Plaintiff deliberately disabled two safety devices to make his contraption useable, and testified that he knew the saw was unsafe as-assembled. However, he claimed that defendants had observed him using the unsafe device and neither stopped him nor provided him with better equipment. The First Department upheld the dismissal of plaintiff’s Labor Law § 241(6) claim, noting that, as an independent contractor, plaintiff was unsupervised and responsible for choosing the best methods and tools to complete the task at hand. The court concluded that Industrial Code §§ 23 1-5(c) and 23-1.12(c) were inapplicable, because the manner in which plaintiff assembled his saw made it impossible to use protective guards or spreaders, and the saw was deliberately assembled without safety devices rather than broken and in need of repair. Plaintiff’s decision to jury-rig a tool that was inappropriate for the job at hand, and to do so in a way that disabled its safety devices, was therefore sole proximate cause of his injuries. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News ALL BARK NO BITE-A Dangerous Dog Registry is Among the Bills to be Voted on by Nassau County Legislature Next Week (NY) February 12, 2021 < Back Share to: Legislator John Ferretti proposed a bill entitled, "Benny's Law" to help protect people and pets within the community. The bill was inspired after the lawmaker’s 1-year old terrier, Benny, was attacked by a neighbor’s dog. Although the dog who attacked Benny is currently on probation, the Ferretti fears that since the dog was returned to its owners, other incidents between dogs and even humans may occur. Ferretti believes that the dog database proposition, which aims to list all dogs legally deemed dangerous by a Judge, will make all neighbors in the community fully aware of the vicious nature of not only the dog that attacked Benny, but all dangerous dogs alike, and thus, neighbors will start exhibiting the necessary vigilance and caution while within those potentially unsafe zones. The framework of “Benny’s Law” will look similar to that of a sex registry. The proposed dog database will comprise of the dog owner’s address, the date of the incident, and “the pet owner will have to mail a letter to all property owners within 1,000 feet of the home notifying them that the owner’s dog has been deemed dangerous.” In addition to the address and date of incident, the database will also feature more detailed accounts of each dog, such as, the dog’s weight, age, breed, color, and the duration of dangerous dog designation. “Benny’s Law” also recommends that the failure to register the dangerous dog on the database will result in consequences, starting with a $500 fine. The bill is scheduled to be voted on within the next week with legislator’s hopes it is fully enacted and implemented before any future incidents arise. Thanks to Irving Fayman for his contribution to this post. Should you have any questions, please contact Thomas Bracken. Previous Next Contact

News No Written Notice = No Dice for Plaintiffs in NYC (NY) August 23, 2018 < Back Share to: It has long been held pursuant to the New York City Administrative Code that the City of New York cannot be found liable for accidents occurring within it due to dangerous conditions unless the City had prior written notice of the existence of the condition. The exceptions to this being where the City created a defect or the defect was caused by special use of that benefited the City. On August 22, 2018, the Appellate Division, Second Department upheld this stringent standard to obtain a recovery from the City for potholes within the five boroughs. In Allen v. City, plaintiff was injured when he fell off of his bike after riding over a pothole in a City owned and operate street. Defendant City moved for summary judgment based on the fact that there was no prior written notice of the condition and none of the exceptions applied. The lower Court denied the City’s motion and found that a reference to a raised or elevated area on a “Big Apple Map,” constitutes prior written notice. The Second Department unanimously reversed the lower Court’s decision and found that the City showed that it did not have prior written notice and that a “Big Apple Map” is insufficient to impose notice onto the City. In Budoff v. City, plaintiff was injured when he fell off of his bike due to a pothole present in a designated bike lane on a City owned and operated street in Brooklyn. The lower Court granted the City’s motion and plaintiff moved to reargue. The lower Court granted reargument and upheld its decision, plaintiff appealed. The Court, which normally will not hear appeals on reargument, decided it was within its discretion to do so here as the underlying Order was upheld upon reargument. The Court unanimously upheld the lower Court’s determination that there was no prior written notice of the condition. IT also found plaintiff’s argument that the City benefited from the special use of the bike lane as it “attracted tourism” to be unveiling and insufficient to impose liability onto the City. The two decisions discussed above, while somewhat different, show how stringent the Second Department is about finding liability against the City. It is decisions like this that push plaintiffs to try to impose liability onto anyone but the City if possible as the burden in showing the City’s negligence is high, and often impossible to meet. In our practice, we see many cases involving defective sidewalk conditions and more often than not, plaintiffs go through great lengths to try to impose liability onto anyone they can find as to make their chances of recovery greater. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Court Finds No Defense Duty Due to Damage Claim (NY) December 13, 2013 < Back Share to: When evaluating whether a lawsuit against an insured triggers a duty to defend, insurers often focus on the complaint's factual allegations of liability. Recently, in Certain Underwriters at Lloyd’s London Subscribing to Policy Number SYN-1000263 v. Lacher & Lovell-Taylor, it was determined that the damages alleged in the underlying action brought the claim outside of the scope of coverage of the professional liability policy issued by the plaintiffs. The Appellate Division, First Department upheld the trial court’s award of summary judgment declaring that the insurer was not obligated to defend or indemnify the defendants in the underlying estate proceeding, and also granted summary judgment on its cause of action for reimbursement of its defense costs. The complaint in the underlying action claimed that the defendants overbilled their client in the underlying estate proceeding, but they never alleged facts which would have shown that if not for their negligence, they would have obtained a better result. The Court also focused on the fact that a damage claim for the return of legal fees is not a claim for “damages” in a legal malpractice action as defined by the professional liability policy the insurers issued. Based on the court’s determination that the insurer did not owe an obligation to defend and indemnify, it is important that insurers evaluate not only the facts of the event which give rise to potential liability for a claim, but also the damages sought, in order to determine whether there is an obligation to provide coverage. Thanks to Jorgelina Foglietta for her contribution to this post. Previous Next Contact

News Cheerleader’s Suit Is Barred By Assumption Of Risk (NY) May 8, 2013 < Back Share to: Under the doctrine of assumption of risk, a participant injured while engaged in a sport or recreational activity is deemed to have consented to those commonly appreciated risks, which are inherent in and arise out of the nature of the sport. However, if the plaintiff is forced to perform the activity, the assumption of risk defense not available because of the doctrine of inherent compulsion. Under this doctrine, when a student is compelled to participate in an activity and has no meaningful choice to decline, then the assumption of the risk doctrine does not apply. Recently, in Stach v Warwick Val. Cent. Sch. Dist., the Appellate Division, Second Department examined whether the assumption of risk doctrine applied to a student injured while participating in cheerleading practice. The plaintiff, an experienced high school cheerleader, was injured when she fell while performing the "Pyramid" stunt on a bare lobby floor. The school district argued that the plaintiff voluntarily engaged in cheerleading and knew the risks inherent in the sport. The plaintiff submitted opposition relying on the doctrine of inherent compulsion. However, the Second Department ruled in the school district’s favor, finding that the plaintiff's voluntary participation in practice on the lobby floor did not implicate the doctrine. Where an experienced student athlete is injured while practicing a recreational activity, the doctrine of assumption of risk eliminates any liability for a school district. It is important for the defense to establish that the activity was voluntary, that is, the student’s participation was not forced in order to avoid the doctrine of inherent compulsion. Thanks to Bill Kirrane for his contribution to this post. If you have any questions or comments, please email Paul Clark at pclark@wcmlaw.com Previous Next Contact

News Police Escort in Funeral Procession Does Not Trigger "Emergency Doctrine" Defense (NY) January 10, 2019 < Back Share to: In State Farm v. County of Nassau, State Farm sought recovery for property damage as part of a subrogation claim, where its insured driver, Licata was driving when he came to a full stop at a “T” intersection. There was bumper to bumper traffic on both his right and left due to a funeral procession. After looking in both directions he started to make a left hand turn. During his turn, he was struck by a police car. Mr. Licata said that the police car did not have its siren or lights on. The police officer contradicted this account. He stated that he had his lights and sirens on because he was proceeding from the back of the funeral line to the front to help escort the vehicles through the intersection. The court was presented with the question of whether the negligence or reckless disregard standard applied. The court held that no emergency existed when the police officer was escorting the funeral procession. Therefore, the ordinary negligence standard applied. The court noted that the police officers testimony was extremely credible and that they believed him when he said he had his siren and lights on prior to the impact. Unfortunately, for him it did not matter. The takeaway from this case is a simple one. Not every time an officer has his or her lights and sirens on will it automatically be considered an emergency situation. It is going to depend on the specific facts and circumstances of the occurrence. Here, the court made it clear, a police officer escorting a funeral procession is not considered an emergency. This case also has a thorough and interesting analysis pertaining to issues of law (applicability of emergency doctrine) and issues of fact (apportionment of fault.) Thanks to Marc Schauer for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News NY Appellate Court Upholds Life Insurance Denial for Material Misrepresentation (NY) December 6, 2019 < Back Share to: In Neiditch v. William Penn Life Ins. Co. of N.Y., the Appellate Division, Second Department, addressed the issue of when an insurance policy may be rescinded for material misrepresentation on a summary judgment motion. The case involved a dispute over life insurance. The plaintiff was the named beneficiary under the policy and sued the insurer to recover the $1 million benefit under the life insurance policy after the decedent died from an anaphylactic reaction to a food allergen. The defendant insurer denied coverage, arguing that the policy should be rescinded because the decedent’s application for the policy contained a material misrepresentation with regard to the decedents prior medical history. The trial court agreed with the insurer and dismissed the case on summary judgment. On appeal, the Appellate Division considered the issue with particular attention to whether material misrepresentation was a question of law or fact. “Ordinarily,” the court found, “the question of materiality of misrepresentation is a question of fact for the jury. However, where the evidence concerning the materiality is clear and substantially uncontradicted, the matter is one of law for the court to determine”. The Second Department affirmed the trial court's decision and held that the insurer was entitled to summary judgment and that the policy was properly rescinded due to material misrepresentation, since the record was clear that the decedent did not disclose information about his prior hospitalizations for anaphylactic reactions. The decision serves as a reminder to both insureds and insurers about the gravity of material misrepresentations on insurance applications. Where the record shows a clear misrepresentation, courts will not hesitate, even on dispositive motions, to uphold policy rescissions. Thanks to Andrew Debter for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Coverage Found For Subpoena Response in Sex Abuse Case (NY) March 12, 2013 < Back Share to: In the last decade, sexual abuse scandals have rocked many religious and educational institutions. Several revered public figures have fallen with a thud from the lofty pedestals upon which they were perched. Beyond the moral failings and public relation disasters, more mundane questions arise such as who pays for the expensive investigations that arise after those claims become public? Syracuse University found itself embroiled in such an alleged scandal in the fall of 2011. Two young men claimed that they were sexually abused by Associate Men’s Basketball Coach Bernie Fine during the course of his employment with the University. Complying with its contractual obligations, the University gave written notice to its insurer, National Union, of a media report publicizing those claims. After numerous subpoenas were issued to the University in connection with state and federal investigations, the University provided copies of the subpoenas to National Union which denied any obligation to pay the costs of responding to those subpoenas. According to its motion papers, the University “expended millions of dollars in legal defense fees and costs to investigate and respond to the Subpoenas.” Under the “Not-For-Profit Protector” policy issued by National Union on a “claims made” basis, the insurer agreed to “pay on behalf of [Syracuse University] loss arising from a claim first made against [Syracuse University] during the policy period…for any actual or alleged wrongful act of [Syracuse University]. The term “claim” included: (1) a written demand for monetary, non-monetary or injunctive relief; or (2) a civil, criminal, administrative, regulatory or arbitration proceeding for monetary or non-monetary relief which is commenced by: … (ii) return of an indictment, information or similar document (in the case of criminal proceeding)…” The key issue was whether the grand jury’s investigations and subpoenas constituted a “written demand for... non-monetary relief” or a criminal proceeding for non-monetary relief commenced by the “return of an indictment, information or similar document (in the case of criminal proceeding).” Ruling in favor of Syracuse University, the court held that the subpoenas' demand for the production of documents and testimony qualified as a written demand for “non-monetary” relief. Further, the grand jury’s investigations also qualified as a “criminal proceeding” for non-monetary relief, triggering the insurer’s duty to defend Syracuse University. The continuing saga involving Syracuse University and its Associate Coach Bernie Fine may be near a close but we suspect that the insurance coverage dispute is far from over. Stay tuned for updates on any appellate activity. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com Previous Next Contact

News No Notice - No Claim Against City (NY) March 20, 2013 < Back Share to: Notice is key in order to maintain a viable claim against the City of New York for failure to adequately maintain a sidewalk. In Adamson v. The City of New York, following a motion for summary judgment, the trial court dismissed the plaintiffs’ complaint and all cross-claims asserted against the City. The tenant of the property abutting the sidewalk (Verizon) appealed the courts order. The record revealed that the City did not have prior written notice of the defective sidewalk condition, as required by Administrative Code § 7-201[c][2], and Verizon failed to demonstrate that the special use exception applied to overcome the prior written notice requirement. As a result of the City not having notice of the alleged dangerous condition, there was no basis for holding the City liable. The Appellate Division, First Department, upheld the lower court’s ruling dismissing Verizion’s cross-claim against the City on the theory that the City failed to provide adequate lighting. Special thanks to Johan Obregon for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .     Previous Next Contact

News Seeing Dollar Signs, A Man Delivers Previously Stolen Warhol Painting To Christie's To Sell February 6, 2008 < Back Share to: After allegedly buying Andy Warhol's 1981 Dollar Sign painting at a New Jersey flea market for $180, Jason Beltrez brought the painting to Christie's auction house to sell. Christie's checked with the Art Loss Register and determined the painting had been stolen from Martin Lawrence Galleries in SoHo on February 14, 1998. The battle now begins as the art gallery is suing Mr. Beltrez for ownership. http://www.nytimes.com/2008/02/06/nyregion/06warhol.html?_r=1&scp=2&sq=warhol&st=nyt&oref=slogin Previous Next Contact

News Scooter Lessor Off the Hook for Incident at County Fair in NY January 23, 2013 < Back Share to: In Couture v. Miskovitz, the plaintiff complained that she was struck by a motorized scooter operated by defendant Miskovitz. Miskovitz had rented the scooter from defendant Stillwater Ramps and Mobility Center and was operating the scooter at the county fair at the time of the accident. Defendant Dutchess County Agricultural Society owned the premises. The lower court denied Stillwater's and Dutchess County's motions for summary judgment. In reversing the lower court's decision, the Second Department held that Stillwater was entitled to summary judgment because it was not vicariously liable for Miskovitz' actions pursuant to Vehicle and Traffic Law 388. Specifically, the fact that the scooter was not operated on a public highway relieved Stillwater from vicarious liability. Moreover, Stillwater demonstrated that it was not negligent in maintaining the scooter, entrusting the scooter to Miskovitz or in training him how to use it. The Court also held that Dutchess County was entitled to summary judgment because it did not have the ability or opportunity, through the exercise of reasonable measures, to control Miskovitz's actions. Thanks to Georgia Stagias for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact