New York Civil Law

Landlord Possibly Liable for Tenant's Dog Who Bit Plaintiff's Child Off the Landlord's Property

The Appellate Division, Third Department in Champ-Doran v. Lewis recently held that an issue of fact existed regarding the defendant landlord's liability for injuries the plaintiff's child sustained.  The plaintiff's child was attacked by one of two dogs owned by the defendant's tenants on the plaintiff's front own front porch.  The plaintiff stated in his bill of particulars that the defendant landlord was aware of the vicious propensities of his tenant's dogs; he also alleged that the defendant tenant had actual and constructive notice that the fence surrounding the landlord's property was "broken and otherwise defective."

 Supreme Court denied the defendant landlord's summary judgment motion.  The defendant landlord argued that he was not liable because the incident did not occur on his property.

The Third Department agreed with Supreme Court, noting that the defendant had knowledge of the dog's vicious propensities and had an adequate opportunity to control the premises and confine the dogs.  The defendant admitted at his deposition that soon after he rented the property to the tenant he became aware of the dogs and received a complaint from a neighbor about barking.  He also admitted that he knew of prior occasions where the dogs escaped the property and told the tenant that the dogs had to go.  Affidavits from neighbors demonstrated that they complained to the defendant about the dogs and their vicious propensities.

The Court recognized that generally a landlord does not owe a duty of care to persons injured from a tenant's dog where the injury occurs off the landlord's property.  The Court concluded, however, that liability can nevertheless be imposed where it is established that the defendant knew of the dog's presence on the premises and its vicious propensities, and the defendant had control of the premises or otherwise had the ability to remove or confine the dog.

Appellate Division, Second Department Addresses Labor Law Action Regarding Scaffold Slipping in Hole

In Caballero v. Benjamin, the Appellate Division, Second Department held that the plaintiff injured worker established prima facie that the owner and general contractor were liable under Labor Law sec. 240(1).  A wheel on the scaffold upon which the plaintiff was working fell into a hole, causing him to fall.  The Court reasoned that the violation of sec. 240 was the proximate cause of the accident and, therefore, the plaintiff's conduct (not discussed in the decision) could not be the sole proximate cause.

The Court also held that the subcontractor was not liable under sec. 240(1) because the evidence established that the subcontractor did not have supervisory control over the work or did not have the authority to insist that proper safety measure were followed.

Also, the Court held that the owner and general contractor established their entitlement to judgment as a matter of law on their contractual indemnification claim against the subcontractor.  The noted that, "[a]though 'an indemnification agreement that purports to indemnify a party for its own negligence is void under General Oblications Law sec. 5-322.1, such an agreement does not violate the General Obligations Law if it authorizes indemnification to the fullest extent permitted by law."

Apellate Division, Second Department Addresses Multi-Vehicle Accident

In Biddy v. Vanmaltke, the Appellate Division, Second Department held that the defendant driver was not liable regarding a collision of the plaintiff's truck or the one in which the plaintiff was rear-ended by another tractor trailer.  The accident unfolded as follows: The defendant Vanmaltke was driving a minivan in the right lane of the eastbound roadway of the Cross Bronx Expressway, when his car was cut off by a Lincoln Town Car.  Defendant Vanmaltke testified at a deposition that he steered to the left to avoid the Town Car and, in doing so, he contacted a tractor trailer being driven in the center lane by the plaintiff Leon Biddy.  This caused the tractor trailer to veer into the left lane and strike the vehicle that the appellant was driving.  The appellant was driving straight in the left lane.  As the plaintiff Biddy was attempting to stop his truck, he was rear-ended by a tractor trailer.

The Court held: "The evidence presented by the appellants on their motion for summary judgment, including the deposition transcripts of the parties and the police accident report, established, prima facie, that the appellant was not at fault in the happening of the accident and, therefore, could not bear an culpability for the plaintiff's injuries . . . .  There is no proof that the appellant operated his vehicle improperly or engaged in any conduct which helped bring about either the collision between his motor vehicle and the plaintiff's truck or the subsequent rear-end collision involving the two trucks.  Moreover, the appellant was 'in no position to take any steps to either reasonably foresee or avoid' the collision between his automobile and the plaintiff's truck."

Appellate Division, Third Department Addresses Juror Confusion

The Appellate Division, Third Department in Albarado v. Dillon recently addressed one of the defendant's claims of juror confusion.  The appeal concerned a three-car accident stemming from the defendant State Trooper's high-speed chase.  The other defendant was stopped on the same route, attempting to make a left-hand turn.  In attempting to avoid the defendant stopped in front of him, the defendant State Trooper first collided with the plaintiff Flood's vehicle and then, as the patrol car rolled over, with the plaintiff Alvarado's vehicle.

The appeal concerned plaintiff Alvarado's action against the State Trooper, the other defendant, and the plaintiff Flood.  A jury found the State Trooper liable to the plaintiff Alvarado and the plaintiff Flood; it found the other plaintiff not liable.

The State Trooper contended that the jury charge at trial to determine liability regarding the standard of care owed by him (as an on-duty police officer) was confusing and warranted a new trial.  The Third Department rejected the argument that the trial court should have given a more complete instruction.  

The Court held: "While the statutory language may be confusing standing alone . . ., the court did not rely solely on the statute in its charge to the jury.  After reading the statute, the court went on to give a charge that closely mirrored Pattern Jury Instruction 2:79a and, on multiple occasions during its charge, referenced the fact that [the defendant State Trooper and the other defendant] were to be judged by different standards . . . .  Additionally, the verdict sheet very clearly indicated these differing standards.  Furthermore, there is no tangible evidence that the jury was confused in this cse as it did not request a clarification on the instructions are.

The Court also addressed interesting points on review of unpreserved issues of fundamental error and costs of litigation under the CPLR.

Appellate Division, Second Department Affirms Rejection of Creative Rear-End Defense

In Carrington-White v. Malvey, the Appellate Division, Second Department recently affirmed  the plaintiff's summary judgment motion on liability.  The matter concerned a rear-end accident, where the defendant struck a cement barrier, causing her vehicle to strike the plaintiff's vehicle.  In opposition to the plaintiff's summary judgment on liability, the defendant contended that she must have been struck from behind by an unidentified vehicle immediately before striking the plaintiff.  The Second Department agreed with the trial court that the defendant's contention was pure speculation and failed to raise a triable issue of fact.

Decision on "Additional Insured" Coverage Will Reach New York Court of Appeals

The New York Court of Appeals in Worth Constr. Co. v. Admiral Ins. Inc. interpreted an additional insured endorsement of a commercial general liability insurance policy.  The issue concerned the provision providing that the additional insured was insured only regarding liability arising out of the insured's (subcontractor's) work.  In Worth, the injured worker fell on a stairway that the insured subcontractor had constructed.  However, the general contractor ultimately conceded that the insured was not negligent as to the worker's accident.  As such, the Court of Appeals held that the general contractor did not have coverage under the subcontractor's insurance policy as an additional insured because the injured worker's accident occurred at the situs of the subcontractor's work but was not due to any negligence on the subcontractor's part -- i.e., the liability did not arise out of the insured's work.

The Appellate Division, First Department recently addressed a gloss on Worth in Bovis Lend Lease LMB v. Garito Constr. Inc.  In that case, the injured worker's accident occurred at the situs of the insured subcontractor's work.  A jury found the general contractor and insured subcontractor negligence, but did not find that the subcontractor's work was the proximate cause of the accident.  

The Majority held that the jury's finding that the insured subcontractor was not the proximate cause of the accident was analogous to the general contractor's concession in Worth that the insured subcontractor was not negligent.  Therefore, the First Department held that the general contractor was not entitled to coverage as a general contractor.  The Dissenting Justices disagreed and held that coverage should have been afforded to the general contractor.

Because two Justices dissented on the same issue of law, and the declaratory judgment action is final, the Court of Appeals will hear the appeal.  New York Civil Law will keep you apprised of the results. 

Appellate Division, Third Department Grants New Trial Regarding Ex Parte Communications With Plaintiff's Treating Physician

The New York Court of Appeals recently held in Arons v. Jutkowitz that a plaintiff who puts his or her physical or mental condition at issue must execute HIPAA-compliant authorizations.  This ruling allows defense counsel to conduct an ex parte interview with a a plaintiff's treating physician post-note of issue.  

What happens when defense counsel conducts an ex parte interview but does not seek HIPAA-compliant authorizations?

The Appellate Division, Third Department in Straub v. Yalamanchili recently affirmed a trial court's granting of the plaintiff's motion to set aside a jury verdict based on defense counsel's two ex parte interviews with the plaintiff's treating physicians without obtaining the plaintiff's authorization under HIPAA.  Notably, the motion to set aside the verdict was based on the interests of justice.  The Court noted that defense counsel, through the ex parte interviews, was able to obtain information that came as a complete surprise to the plaintiff's counsel and that plaintiff's counsel was unable to rebut.

New York Court of Appeals Addresses Insurance Law sec. 3420(d) Within Context of Insured Non-Cooperation

Plaintiffs' and defense attorneys struggle with the lack of defined time limits as applied to Insurance Law sec. 3420(d).  Section 3420 is the requirement in bodily injury and death cases that an insurer shall give an insured, injured person, or any other claimant written notice of a disclaimer or denial of coverage as soon as is reasonably practicable of the disclaimer of liability or denial of coverage .

In prior cases, the New York Court of Appeals has refused to set a bright-line deadline as it applies to sec. 3420(d).  What happens when the insurer is faced with an insured who is not cooperating in the defense of an action?  The lack of cooperation standard that an insurer must demonstrate is extremely high.  As such, a lot of time can pass before an insurer has enough evidence to demonstrate lack of cooperation.

The Court addressed that exact issue in Continental Cas. Ins. v. Stratford.  The case stemmed from a dental malpractice actions commenced against the insured Stratford.  The insured over a six-year period cooperated with his insurer only sporadically.  The Court held that there were issues of fact regarding the amount of time required for Stratford's insurer to evaluate his cooperation (or lack thereof) with the insurer.

A possibility exists that the reasoning in this decision applies beyond the non-cooperation context.  An insurer who can demonstrate a valid excuse for a disclaimer beyond the "industry-standard" 30-day time limitation can rely on this decision as additional support that the time limit is an elastic concept.

New York Department of Insurance Webcasts Today

I just learned today that the New York Department of Insurance will be providing a webcast today at 10:00 a.m. You can access the webcast here. Please excuse the appearance, I'm mobile blogging.

New York Court of Appeals Will Address New York's No-Prejudice Rule

The big news regarding New York insurance law this past summer was that Governor Paterson signed a Bill eviscerating New York's long-standing no-prejudice rule (see Bill here: Download No-Prejudice.doc).

The New York Court of Appeals heard oral arguments in Sorbara Constr. Corp. v. AIU Ins. Co. yesterday regarding applying the no-prejudice rule where the insured failed to give timely notice to an excess insurer.  In Sorbara, the plaintiff became aware of its employee's accident and his ensuing lawsuit almost immediately, but did not notify defendant excess insurer for some 5½ years, until after the defendants in the underlying matter had instituted a third-party action against it.  The Appellate Division, First Department held that the insured's "protracted delay" relieved the insurer from defending or indemnifying the insured. 

Notably, the First Department held that notice under a workers' compensation policy (by the same insurer) does not constitute notice under a liability insurance policy.  The Court also noted that the plaintiff's own duty to provide notice to the excess insurer is not negated by the insurer's actual knowledge acquired from another source.

New York Civil Law will keep you apprised when the decision is handed down.