New York Civil Law

Happy New Year

This year has been absolutely wonderful for me as it is the year I first joined the blogosphere. I have met some great people through "New York Civil Law" and learned a lot from them.

I wish everyone a safe and happy New Year. Thanks for reading "New York Civil Law."

Posts return on January 4, 2005.

Appellate Division, First Department Is First New York Appellate Court to Decide Issue Concerning Illegal Aliens' Claim for Future Loss Wages

The Appellate Division, First Department yesterday decided two cases -- Sanango v. 200 E. 16th Str. Hous. Corp. and Balbuena v. IDR Realty Inc. -- concerning whether an illegal alien can seek future lost wages he or she could have earned but for the injury sustained (see prior post on the issue). The Court's decision that an illegal alien is not entitled to recover lost earnings damages based on the wages he or she might have earned illegally in the United States is faithful to the Supreme Court of United States' holding in Hoffman Plastic v. Nat'l Labor Relations Bd.

MVAIC Subject to Same 30-Day Payment or Denial Rule Under No-Fault Regulations - Case Summary

New York Hosp. Med. Ctr. of Queens v. Motor Vehicle Accident Indemnification Corp.

The Appellate Division, Second Department held in this case that the requirement that an insurer either pay or deny a claim within 30 days of receipt of a claim for reimbursement for treatment for injuries arising out of an automobile accident applied to the Motor Vehicle Accident Indemnification Corporation (see State Insurance Department for good explanation of MVAIC). Notably, the Second Department also held that MVAIC's failure to object to the adequacy of the plaintiff's claim form within 10 days of its receipt constituted a waive of any defense concerning the claims contained thereon.

Recent Insurance Coverage Decision in Appellate Division, First Department Raises Some Eyebrows

One thing of which I'm sure: Justice Catterson does not agree with New York's no-prejudice rule.  The no-prejudice rule is a limited exception that allows a primary insurer to deny coverage when the insured has not provided a timely notice of claim or occurrence, provided the insured has not established a valid excuse.  The insurer does not show that it has been prejudiced by the late notice to disclaim coverage.

The Appellate Division, First Department, struggled as to whether the no-prejudice rule should still exist in New York in Great Canal Realty Corp. v. Seneca Ins. Co. -- a plurality decision.  Justice Catterson weighed in with analysis against continuing the rule in New York.  He also wrote this decision earlier this year about his view of the no-prejudice rule when he sat as a Supreme Court Justice.

As previously mentioned, the New York Court of Appeals will hear oral arguments on the no-prejudice rule in February 2005 (see prior post).

Recent New York Court of Appeals Decision Gives Teeth to "Recalcitrant Worker" Defense in Labor Law Section 240(1) Context

The New York Court of Appeals yesterday determined in Cahill v. Triborough Bridge & Tunnel Auth. that where an employer has made available adequate safety devices and an employee has been instructed to use them, the employee may not recover under Labor Law Section 240(1) for injuries caused solely by his violation of those instructions, even though the instructions were given several weeks before the accident occurred. This decision logically places the responsibility on the injured worker when the owner or general contractor has complied with section 240(1) and the worker has taken upon himself or herself to avoid using the safety devices provided to him or her.

Article on New York Court of Appeals' Decision Concerning Mighty Midgets Rule

It might sound childish, but I laugh every time I think that there is a New York Court of Appeals case with the name Mighty Midgets.  In any event law.com has this article summarizing the Court's answer to the United States Circuit Court of Appeals for the Second Circuit certified question concerning attorneys' fees within the context of an insured successfully defending itself against a suit instituted by an insurer to escape liability (see prior post).

If you are wondering how the term Mighty Midgets plays into this post, the rule concerning attorneys' fees was set forth in a case entitled Mighty Midgets Inc. v. Centennial Ins. Co.

Connecticut Blawg Kirby's Reports

Kirby's Reports is an aesthetically pleasing blawg on Connecticut law that focuses on reviews of cases decided by the Connecticut Supreme Court and the Connecticut Appellate Court.  It also covers legal news, the Connecticut Superior Court, the Connecticut Probate Court, the Second Circuit Court of Appeals, and other topics relevant for members of the Connecticut bar. 

You can welcome Mark to the blogosphere by not only visiting his blawg, but learning who Ephraim Kirby was.

New York Court of Appeals Hands Down Decision in Pataki v. New York State Assembly/Silver v. Pataki

The New York Court of Appeals decided issues concerning the Governor's powers with respect to New York's budget (see prior post) yesterday in this decision. 

New York Court of Appeals Decides Attorney's Fees Issue on Certified Question

In U.S. Underwriters Ins. Co. v. City Club Hotel LLC, the New York Court of Appeals answered the following certified question in the affirmative:

Whether, in a case in which an insurance company has brought a declaratory judgment action to determine that it does not have obligations under the policy but has defended in the underlying suit, a defendant prevailing in the declaratory judgment action should be defending against that action?

The Court held that the rule in Mighty Midgets, Inc. v Centennial Ins. Co. (see prior post) applied to the defending insured in the declaratory judgment action even though the insurer defended the insured in the underlying claim.  Notably, the Court refused to answer the second certified question because it was unclear.

Saving New York's No-Prejudice Rule - New York Court of Appeals Sets Argument Date

The New York Court of Appeals has scheduled arguments for February 2005 concerning two appeals that address New York's "no-prejudice" rule (see prior posts here, here, and here).  The no-prejudice rule is an exception to a contract rule in which New York courts will not require an insurer to demonstrate prejudice if an insurer proffers a late notice of claim or occurrence without a reasonable explanation or excuse.

Two cases addressing different aspects of the rule will be argued together -- Argo Corp. v. Greatner N.Y. Mut. Ins. Co. and Rekemeyer v. State of New York.