"The Appeals Attorneys" is a publication from my firm's Appellate Advocacy Group. It includes summaries of cases that will be heard by the high courts in Connecticut, New Jersey, New York, and Pennsylvania. For New York, this edition includes the following cases:
Voss v. The Netherland Ins. Co. (Insurance Coverage)
Ragins v. Hosps. Ins. Co. (CPLR)
Osterweil v. Bartlett (Second Amendment)
Barenboim v. Starbucks Corp. (Labor & Employment Law)
Commonweath of the N. Mariana Islands v. Can. Imperial Bank of Commerce (CPLR/Enforcing Judgments)
Callistro v. Bebbington (Expert Testimony/Medical Malpractice)
Matter of Perry Bellamy v. NYCPD (Freedom of Information Law)
Villarin v. The Rabbi Haskel Lookstein Sch. (Labor & Employment Law)
Biotonik v. Conor Medsystems Ireland, Ltd. (Contracts)
Jacobsen v. NYC Health & Hosps. Corp. (Labor & Employment)
Soto v. J. Crew, Inc. (Labor Law sec. 240(1); New York's Scaffold Law)
Cornell v. 360 W. 51st Str. Realty (Evidence)
Sandiford v. City of New York Dept. of Educ. (Labor and Employment)
JFK Holding Co. v. City of New York (Contract)
Plaza v. NY Health & Hosps. Corp. (Civil Procedure)
If you are interested in receiving the quarterly publication through email, please email me at mlerner[at]goldbergsegalla[dot]com.
I'm posting about a story that broke last Friday, but better late than never. Governor Cuomo nominated Justice Sheila Abdus-Salaam to the New York Court of Appeals on Friday, April 5, 2013 to fill the seat previously held by the late-Judge Theodore Jones. Here's the Governor's press release. Here are some news article about the nomination: The Times Union here; and The New York Law Journal here. The nomination awaits state Senate approval.
The Court of Appeals' granted leave to appeal in Voss v The Netherlands Ins. Co., 98 AD3d 1325 (4th Dept. 2012) (Motion for leave to appeal granted on Feb. 14, 2013). Here is a summary of the matter concerning business interruption insurance.
Does an insured’s business need to resume operations in order to receive payment of insurance policy benefits for business interruption coverage? Justice Carni of New York’s Fourth Judicial Department disagreed with the Majority in Voss on this issue.
The plaintiff commenced an action against CH Insurance Brokerage Services, Co. alleging, among other things, negligence and breach of contract in connection with business interruption coverage that CH Insurance obtained for plaintiff. The parties stipulated that The Netherlands Insurance Company was substituted for CH Insurance after the plaintiff commenced the action.
The matter concerns a commercial building that housed the corporate plaintiffs and a corporate tenant. The building was damaged on three separate occasions in connection with water leaking from the roof. The leak caused a portion of the roof to collapse on two of those occasion. Notably, the first two incidents occurred while the limit for business interruption coverage was $75,000. The third incident occurred after the policy was renewed and the coverage for business interruption had been reduced to $30,000.
The plaintiffs alleged in their amended complaint and supplemental bill of particulars that the defendant failed to provide adequate coverage and was negligent in reducing the coverage. The issue that the New York Court of Appeals will most likely address is whether the proximate cause analysis concerning the failure to provide adequate business interruption coverage hinges on whether the business would resume operations if timely paid the full but allegedly insufficient insurance coverage limits.
The Majority concluded that the defendant’s negligence in failing to obtain sufficient business interruption coverage for the plaintiffs was not the proximate cause of their damages as a matter of law. Relying on the plaintiff’s testimony that, if the policy limit of$75,000 had been pain in a timely manner for each of the two incidents, the plaintiff corporation would have been able to remain operational and continue its business operations. As such, the Majority’s conclusion hinged on whether the plaintiff actually resumed operations.
Justice Carni was the lone dissenter on this issue. He concluded that whether the plaintiffs actually resumed operations is irrelevant to the proximate cause analysis concerning the plaintiffs claim that the defendant failed to procure adequate business interruption coverage limits. Justice Carni concluded that whether the defendant was negligent in failing to procure adequate insurance coverage is measured by the amount of the plaintiffs’ business income losses when compared to the policy limits determine and procured by the defendant broker. He also concluded that the defendant had failed to establish that the policy limits were sufficient to cover the amount of the plaintiffs’ business income losses during the relevant policy periods.
The New York Court of Appeals’ resolution of this appeal will impact the insurance industry writing business interruption coverage in New York. Moreover, the Court of Appeals might address and further explain the boundaries of a “special relationship” between an insurance broker and the insured.
On April 4, 2013, the Appellate Division, Second Department will hold its first ever sitting at a law school (see press release). The Court will hear these arguments at St. John's Law School (see this summary here from St. John's School of Law's webpage).
Stay tuned for a substantive post on the New York Court of Appeals' quirky decision on preservation . . . .
The New York Court of Appeals will hear oral argument today in Sanchez v. Nat'l R.R. Passenger Corp., among other appeals (here is the summary). The case addresses an interesting issue concerning evidentiary proof in a summary judgment motion. The appeal turns on when the plaintiff's accident occurred; there is a statute of limitations issue here. At her deposition, the plaintiff could not recall the exact date of her accident. An accident report places the accident at an earlier date than the date the plaintiff alleges in her verified pleadings.
The Court will address whether, even in the face of the plaintiff's deposition testimony, her verified pleading can raise a material issue of fact regarding the date when the accident occurred and, as such, when her claim accrued for statute of limitations purposes.
New York Governor Andrew Cuomo has the opportunity to shape the Bench of the New York Court of Appeals during his first term and, if re-elected, second term. In light of Judge Theodore Jones’ untimely death, the Governor has yet another opportunity to nominate another judge to New York’s high court.
New York’s Commission on Judicial Nomination recently forwarded its list of judicial candidates to the Governor. The candidates endorsed by the commission are:'
The Governor has up to the first week of April 2013 to nominate one of the candidates.