New York Civil Law

New York Court of Appeals to Address Interplay Between SUM Coverage and No-Fault Law

The New York Court of Appeals will address the following question on October 9, 2007: Does an injured plaintiff have to establish he or she sustained a "serious injury" under Insurance Law sec. 5102 to recover supplementary underinsurance motorist coverage (SUM) from his or her insurance carrier?  The Appellate Division, Second Department in Raffellini v. State Farm Mut. Auto. Ins. Co. held that the injured plaintiff did not have to do so.  The Court of Appeals will hear oral argument on the 9th, and will likely issue a decision in November 2007.

NYCL will keep you apprised.

Today In New York Legal History -- Leon Franz Czolgosz Sentenced to Death

On September 26, 1901, Erie County, Supreme Court Justice White sentenced Leon Franz Czolgosz to death for the assassination of President William McKinley.  You can read about the trial and more facts about the assassination and Czolgosz at this site.

A Cause of Action for Negligent Issuance of Life Insurance Policies?

Is there a cause of action in New York for the negligent issuance of an insurance policy?  This novel issue was raised in Katchalova v. Perchikov.  The Appellate Division, Second Department held that New York does not recognize such a cause of action.  The tragic facts involve decedent applying, with the help of Defendant Perchikov, for several life insurance polices.  During the application processes, the decedent misrepresented her income, her occupation, and her relationship with Perchikov.  After procuring one million dollar life insurance policies from the defendants Union Central Life Insurance Company, John Hancock, and Metropolitan Life Insurance Company, Perchikov allegedly murdered the decedent to obtain the proceeds of the life insurance policies.  The decedent's personal representative and administratrix commenced this action to recover damages for pain and suffering and wrongful death.   

Tweak on a Workers' Compensation Law Issue -- Appellate Division, Second Department Recent Decision

The Appellate Division, Second Department in Baldwin v. City of New York addressed an interesting tweak on a workers' compensation law issue.  The plaintiff previously injured himself while within the scope of his employment, applied for workers' compensation benefits, and received them.  The plaintiff was being transported to physical therapy by one of his employer's ambulette's when his injuries were aggravated by an automobile accident. 

The defendant employer moved for summary judgment in a personal-injury action that the plaintiff commenced regarding his aggravated injuries.  It argued that the plaintiff's injuries were from only the original, work-related accident.  The Second Department held that issues of fact existed on whether the subsequent accident aggravated the injuries.  The Court noted that a "plaintiff's application for, and acceptance of, Workers' Compensation benefits d[oes] not preclude him [or her] from bringing a separate common-law action to recover damages based on the subsequent acts of negligence which result[] in the aggravation of his [or her] work-related injuries where the aggravation of the injuries did not arise out of or in the course of the plaintiff's employment."

Urban Justice Center's Innovations in Social Justice Award

The Urban Justice Center has just created a new award that readers might be interested in.  Here is the information below:

THE URBAN JUSTICE CENTER’S INNOVATIONS IN SOCIAL JUSTICE AWARD

The Urban Justice Center (UJC) has created the “Innovations in Social Justice Award.”* The Award will provide seed money to an individual to start a new, innovative Project at the UJC. We seek a highly qualified individual to develop a Project that will advocate for a marginalized and under-represented population in creative ways. Factors for selection include the applicant’s experience and creativity, and the likelihood that the applicant will have a high impact and successfully maintain the Project after the conclusion of the Award. Advocacy methodology is limited only by the creativity of the recipient and may include litigation, public education, coalition building, and grass-roots mobilization. The winning candidate will start a Project within the UJC’s New Project Initiative under the supervision of the Executive Director.

Award

The award will be $100,000, which will be used for salary, fringe benefits, overhead and other project expenses. The funds must be budgeted to last for a minimum of one year. The salary level will depend on the experience of the recipient and will reflect a fair wage for public interest work in New York City. The candidate that is selected will start a Project within the UJC’s New Project Initiative under the supervision of the Executive Director.

Click here for the application.  Click here for more information.

Amendment to CPLR Concerning Cross Motions

Chapter 185 of the Laws of 2007 (Download STATUS.doc ) amends the CPLR regarding motion practice.   Under the old rule, a party could cross move and serve it on the third day before the motion date.  Some practitioners gave their adversaries earlier notice as a professional courtesy, but others used this extremely short deadline as a point of strategy.

Under the practice now, if the movant gives 16 days notice (where service is in person; 21 by mail), the movant can require the opposing parties to serve a cross motion at least 7 days before the return date.  See CPLR 2215 (Download rule_2215.doc )

Here's the tweak: the cross movant only gets 3 days added on to the 7 for mailing.   BE CAREFUL: This provision does not apply the 5-day mailing add on for cross motions that we are used to for regular motions.  If the cross movant uses overnight delivery, the cross movant gets the usual 1 day add on.

Why is the New York Court of Appeals' Decision in BP Air Conditioning Corp. v. One Beacon Ins. Grp. Important?

This past June, the New York Court of Appeals' decided an important insurance coverage issue in BP Air Conditioning Corp. v. One Beacon Ins. Grp.  The appeal concerned a Comprehensive General Liability insurance policy.  BP Air Conditioning was a subcontractor on a job at the World Trade Center.  BP subcontracted the HVAC-related work to Alfa Piping Corp.   The purchase order between BP and Alfa included an indemnification provision, hold harmless clause, and required Alfa to name BP as an additional insured on its CGL policy.  Defendant One Beacon issued the CGL policy.

An employee of yet another subcontractor commenced suit against the general contractor for injuries he allegedly sustained on the worksite.  The general contractor commenced a third-party action against BP and Alfa, and the plaintiff then commenced a direct action against BP and Alfa. 

BP tendered its defense to One Beacon as an additional insured on Alfa's CGL policy.  One Beacon declined to defend BP but defended Alfa.  One Beacon's argument in opposition to a summary judgment motion BP made in a declaratory judgment action seeking One Beacon to provide it a defense was as follows:  it was not obligated to defend BP until it was determined that the plaintiff's alleged injury arose out of Alfa's activities, and that One Beacon's responsibility, if any, for the costs of BP's defense could not be determined without considering other relevant policies at issue.

There are two important points to the Court of Appeals' decision:

1. The Court rejected One Beacon's argument that its duty to defend was only triggered when a determination of liability is made.    It held that "[a] duty to defend is triggered by the allegations contained in the underlying complaint."  This holding further reinforces that the duty to defend is broader than a duty to indemnify.

2. Practitioners should stop reading the Court's prior holding in Pecker Ironworks of N.Y., Inc. v. Traveler's Ins. Co. in an extremely broad fashion.  In Pecker, the Court held that where two entities enter into an agreement where one will name the other as an additional insured, the implicit understanding is that the coverage for the additional insured is primary, not excess.  The Court in
BP dispelled that Pecker stood for the proposition that the additional insured coverage is always primary to other coverage for the named insured, irrespective of an "other insurance' clause.

A quick read of Pecker in concert with BP will clarify the point.

New York's NYCRR Will Soon Be Available On-Line and For Free

New York was sorely missing a vital legal resource on the Web: a free on-line version of the NYCRR. No longer. Governor Spitzer just signed Bill A7885A into law, requiring that the New York Department of Statement to post or maintain a link on its website to an unofficial version of the New York Codes, Rules and Regulations, at no cost to the public. The Department of State's Website has not yet complied with this Bill.

Why Is Broggy v. Rockefeller Grp., Inc. Important? - Labor Law sec. 240(1)

The New York Court of Appeals' recent decision in Broggy v. Rockefeller Grp., Inc. is significant for two reasons (see prior post about case).   First, the Court clarified the activity "cleaning" set forth in Labor Law sec. 240(1).  As those who practice in this field know, practitioners have been contorting case law to argue what constitutes "cleaning" and what activities do not.  The Court clarifies the issue, noting that "cleaning" is not confined to cleaning in a construction context and "cleaning" does not need to be incidental to another enumerated activity.

Second, the Court reaffirms that not every fall from a height places an injured plaintiff within the protection of Labor Law sec. 240(1).  Here, the injured plaintiff was washing the interiors of a building's windows and fell off a desk upon which he was standing while cleaning the windows.  The Court reasoned that the Record did not indicate that he was obliged to be at an elevation to perform his job.

The Court spent most of the decision describing the case's facts, so I recommend reading it to see how the Court arrives at its reasoning.  The Court stated: "[S]ummary judgment in favor of defendants is proper because the evidence in this record demonstrates as a matter of law that plaintiff did not here need protection from the effects of gravity."

BREAKING NEWS -- Summons and Complaint in New York Judicial Pay Raise Litigation

BREAKING NEWS STORY

I am sure you have all read today that four New York judges have commenced a declaratory judgment action against Eliot Spitzer, the New York Assembly, and the State of New York regarding judicial pay raises (or the lack thereof).  New York Civil Law has obtained the well-crafted Summons and Complaint in this action (see here: Download filed_complaint.pdf ).

Chadbourne & Parke LLP are representing, pro bono, the four Judges (Judge Larabee [New York County Family Court], Justice Nenno [Cattaraugus County Court], Judge Nunez [New York County Criminal Court], and Judge Wright [Civil Court of the City of New York, New York County].

Former New York Court of Appeals Judge George Bundy Smith and Thomas Bezanson are heading up the case for the four Judges.  The Complaint does a very good job of demonstrating the comparison of judicial pay in New York to other states and even other positions in New York.  It also provides a history of judicial pay in New York.  There is also a fascinating separation of powers section of the Complaint.  The action is sure to concern interesting legal issues and hopefully result in well-deserved pay raises for our State's judiciary.

Here is Chadbourne & Parke's press release.  Here is a an article in the New York Times and one from the AP.