New York Civil Law

New York Court of Appeals Will Address Appellate Division Department Split on Negligent Security Measures - Pt. 3

Negligent security premises liability appeals are pending at the New York Court of Appeals. As discussed in my two prior posts here and here, the Appellate Division, Second Department case – Scurry v New York City Hous. Auth. – challenged one line of caselaw in the First Department on targeted attacks of tenants on a landlord’s property.

Notably, the Second Department called out the First Department on their intervening act proximate cause analysis – i.e., the perpetrator’s targeted attack on a tenant is extraordinary and unforeseeable, breaking the causal connection between the landlord’s breach of the duty to take minimal security precautions to protect its tenants and the tenant’s injuries.

The First Department clapped back at the Second Department in Estate of Murphy, v New York City Hous. Auth., rejecting the Scurry Court’s implication that the First Department’s jurisprudence holds that the fact that a victim was targeted obviates the need for any inquiry into the security measures in place at the subject premises. The First Department stated, in response to the Scurry Court,

“Indeed, we are aware of no case in the First Department that suggests that a landowner would avoid liability even if minimal precautions would have actually prevented a determined assailant from gaining access. In reality, however, that is hardly ever the case.”

In Estate of Murphy, the plaintiff’s daughter was the victim of a dispute between two gangs. Without getting too deep into the facts, I will note that the daughter and her friends were fleeing members of an opposing gang. The daughter and her friends entered the side door of the apartment building where she lived and ran to the fourth floor. The side door was not intended for entry into the building. There was evidence that the door's lock was frequently broken and tenants used it to enter the building. The perpetrators entered the same unlocked side door and, after a brief confrontation on the fourth floor, the perpetrators shot and killed the daughter.

The plaintiff commenced a civil lawsuit against the perpetrators and the owner of the apartment building. She alleged that the defendant New York City Housing Authority was negligent in failing to have properly functioning locks at the premises, failing to properly monitor surveillance equipment, and failing to provide adequate security. NYCHA moved for summary judgment, relying on the evidence submitted by the People of the State of New York at the criminal trial of one of the perpetrators. The People elicited the testimony of several of the people who had been involved in the fighting. The People argued to the jury that the perpetrators killed the daughter/victim in an act of vengeance.

The First Department affirmed the trial court’s grant of summary judgment to NYCHA based on the evidence showing that the perpetrators were intent on gaining access to the building. The Court relied on evidence demonstrating that the perpetrators focus on gaining entry to the building, no matter what the consequences were – e.g., text messages indicating the perpetrators were bent on revenge and the fact that they entered the building in plain site of several people and surveillance cameras, without attempting to shield their faces.

Notably, the First Department relied on an inference as part of its reasoning on the intervening cause analysis. The Court stated, “[C]onsidering that at least one other person, by all appearances oblivious to the brouhaha between the two groups, entered the building at the same time, it does not take a leap of the imagination to surmise that [the perpetrators] would have gained access to the building by following another person in or forcing such a person to let them in.” Based on the foregoing reasoning, the Court concluded that all the factors negated the unlocked side door as a proximate cause of the harm to the plaintiff’s daughter. Further, the Court concluded that the perpetrators “murderous intent” was the only proximate cause of the daughter’s death.

All of these tort concepts are well settled. Thus, the Court of Appeals’ decision on the Scurry and Estate of Murphy appeals might not pronounce a new rule on this line of a negligent security analysis. New York Civil Law will report on the appeals when the Court hands down its decision in Scurry.

Photo Credit: PointsofNoReturn

New York Appellate Division, Third Judicial Department Addresses Level of Specificity Necessary for a Disclaimer of Coverage for Bodily Injury Arising Out of an Accident - Pt. 1

The Appellate Division, Third Department recently addressed in Bahnuk v Countryway Ins. Co. the level of specificity necessary when an insurer seeks to disclaim coverage for bodily injury arising out of an accident. The Court held that the insurer must provide written notice of the disclaimer to both its insured and the injured party, and the notice must indicate with "a high degree of specificity...the ground or grounds on which the disclaimer is predicated."

The Bahnuk case concerns a personal-injury case where an emergency medical technician filed a lawsuit against the property owner after sustaining injuries at the property. The technician also sent a copy of the complaint to the insurance company (the defendant) that provided homeowner's insurance for the property.

The insurance company disclaimed coverage. By way of a detailed, six-page letter to the property owner, the defendant insurer advised that it was disclaiming coverage and refered to the policy exclusions upon which it was relying. That is, the defendant insurer explained that the property did not meet the definitions of "residence premises" or "insured location" as set forth in the policy, and further stated that the circumstances also fell within the exclusion pertaining to incidents arising out of a business on the premises. In that letter, the defendant insurer provided additional information as to why these exclusions applied under the circumstances.

The defendant insurer wrote separately with the injured plaintiff, stating in one sentence that there was no coverage available for his claim because the property did not constitute an "insured location" as defined by the policy. After the the plaintiff's attorney disputed the defendant insurer's position, the defendant insurer followed up with a second letter indicating only that coverage was excluded "based upon the circumstances of the loss and the policy language." The Third Department noted that the term "insured location" "carries eight distinct definitions" under the applicable policy.

In the absence of a defense provided by the defendant insurer, the property owner defended the property owner's lawsuit with her own attorney (rather than one provided by the insurer). During the course of the litigation between the plaintiff (injured party) and the property owner, the parties agreed that the property owner would sign a confession of judgment for $100,000 — the limit of the property owner's policy with the defendant insurer — in exchange for the plaintiff's agreement not to execute the judgment against the property owner but, instead, to pursue a claim against the defendant insurer under Insurance Law § 3420 (a) (2).

The plaintiff commenced the action against the defendant insurer, seeking satisfaction of the $100,000 judgment. Following discovery, the parties each moved for summary judgment, and Supreme Court denied both motions. In so doing, the court held that the plaintiff had demonstrated, as a matter of law, that the defendant insurer failed to provide him with adequate notice of the bases for the disclaimer of coverage, such that the defendant was precluded from relying on those policy exclusions.

The Appellate Division concluded that Supreme Court properly determned that the defendant insurer's notice of disclaimer to the plaintiff was insufficient. Quoting Ability Transmission, Inc. v. John's Transmission, Inc., the Appellate Division stated that when an insurer seeks to disclaim coverage for bodily injury arising out of an accident, it must provide written notice of the disclaimer to both its insured and the injured party, and the notice must indicate with " 'a high degree of specificity . . . the ground or grounds on which the disclaimer is predicated.' " The Ability Court quoted the well-settled Court of Appeals opinion General Acc. Ins. Grp. v. Cirucci, which is a cornerstone case regarding disclaimer letters for bodily injury arising out of an accident. Quoting Cirucci, the Appellate Division in Bahnuk Court wrote, "Absent such specific notice, a claimant might have difficulty assessing whether the insurer will be able to disclaim successfully[, and this] uncertainty could prejudice the claimant's ability to ultimately obtain recovery." 

As far as disclaimer letters go, the Bahnuk opinion does not offer any surprises. The holding is one more reminder to injured parties, insureds, and insurers to consider whether the language of the disclaimer letter has a level of specificity that exposes the insurer to a challenged disclaimer. If not, the insurer loses those disclaimer grounds in an insurance coverage lawsuit.

In a second part to this post, I will discuss the procedural/strategic thinking the plaintiff and the property owner took to protect themselves. 

Image credit to Nick Youngson.

Breaking News - Justice Whelan of New York Supreme Court, Suffolk County Grants New York Senator Palumbo's Motion for a Declaration Concerning New York Court of Appeals Nominees

New York Supreme Court Justice Thomas F. Whelan handed down his decision today granting Plaintiff New York Senator  Anthony  H. Palumbo's motion for a declaration concerning requiring a full floor vote by the Senate on a judicial appointment to the New York Court of Appeals (Decision and Order Download). The Court ordered and declared that pursuant to Article VI sec. 2 (e) of the New York State Constitution, the plaintiff Hon. Anthony H. Palumbo is entitled to a full floor vote before the Senate on a gubernatorial nominee for the Court of Appeals. The Court denied the defendants' motion to dismiss the complaint and rejected their mootness argument, discussing that the same issue will arise with the upcoming nomination process for the Chief Judge vacancy.

Notably, the Court declared unconstitutional the Senate procedure of having the Senate Standing Committee on the Judiciary first vote whether to advance the appointee before the full Senate floor.

A more detailed analysis will follow.

Update on New York State Senate's Vote on Justice Hector LaSalle's Nomination to the New York Court of Appeals

Last week was a busy one for the New York State Senate and New York Court of Appeals (see here and here). New York Senator Rob Rolison wrote this letter about the Senate vote on Governor Kathy Hochul's nomination of Justice Hector LaSalle for the chief judge position of the Court. The Times Union published this article about the history of the nomination process. Commentators expect Supreme Court, Suffolk County Justice  Whelan to hand down a decision today on Senator Anthony Palumbo's declaratory judgment action against the Senator. New York Civil Law will provide an update if and when Justice Whelan hands down a decision later today.

Update (12:46 p.m.) - Here is the Commission on Judicial Nomination's recent posting for the Chief Judge Vacancy. Applications are due no later than March 7, 2023.

Clerk of New York Court of Appeals Contacts Counsel for the Commission of Judicial Nomination Regarding Vacancy of New York Chief Judge Position

Today, New York Court of Appeals Clerk Lisa Le Cours wrote ) the Counsel for the Commission on Judicial Nomination indicating that (1) the Governor's office notified the Court that the New York Senate rejected Governor Kathy Hochul's nomination, and (2) the office of Chief Judge remains vacant. Notably, the Commission recommended six other potential nominees for the chief judge position. (see letter below

Question: Because the Commission deemed six potential nominees in addition to Justice LaSalle qualified for the position, does the Commission now recommend one new potential nominee and include the six other potential nominees from the first go around of the selection process? If the Commission recommends an entirely new slate of potential nominees, how does that square with its original recommendation of the other six potential nominees? h/t to Nick Reisman