In Holland v. W.M. Realty Mgt., Inc., the plaintiffs claimed that they were injured by toxic mold present in their apartment that the defendant managed. Before the mold was removed, the plaintiffs collected two samples that were sent for destructive testing. Thereafter, the plaintiffs failed to comply with three court orders to make any mold samples in their possession available to the defendant for nondestructive testing. As such, the trial court precluded the plaintiffs from offering their own test results into evidence. The Appellate Division reversed and held that preclusion was inappropriate where the defendant had notice of the plaintiffs’ claim and could have obtained its own mold samples, but failed to do so.

Thanks to Bill Kirrane for his contribution to this post.

http://www.nycourts.gov/reporter/3dseries/2009/2009_05844.htm

In Fernandez v. Nationwide Mutual Fire Insurance Company the plaintiff was the owner and operator of an automobile insured by Nationwide Mutual Fire Insurance Company when he was involved in an accident with a commercial vehicle owned by Go Pro Waste Services, Inc., and operated by Peter Garofalo (collectively, the tortfeasors). The tortfeasors’ vehicle was insured by Proformance Insurance Company for personal injury liability coverage in the amount of $1,000,000. As a result of the accident, Fernandez suffered serious injuries and incurred medical expenses totaling over $500,000. Nationwide paid Fernandez its PIP coverage limit of $250,000. Fernandez then filed a personal injury action against the tortfeasors. On July 14, 2004, Nationwide filed for intercompany arbitration against Proformance to recover the PIP benefits paid to Fernandez, together with interest.

On appeal, the Appellate Division reversed the trial court’s decision in a published opinion. The panel held that a PIP carrier who has paid PIP benefits to an insured is entitled to reimbursement of those benefits from the insurance proceeds of the third-party tortfeasor, even when the amount of the tortfeasor’s insurance is insufficient to make the insured whole.

Thanks to Sheila Osei for her contribution to this post.

http://www.judiciary.state.nj.us/opinions/supreme/A-54-08%20Fernandez%20v%20Nationwide.pdf

In Regal Construction Corporation v. National Union Fire Insurance Company of Pittsburgh, the City of New York engaged defendant URS Corporation to be the construction manager for a renovation project at Riker’s Island. By written agreement, URS hired plaintiff Regal Construction Corporation to serve as the prime contractor for general construction, as well as for demolition and renovation. In March 2001, Regal was supervising demolition of a bath and shower area of the prison and the replacement of flooring. Ronald LeClair, Regal’s project manager, then performed a walk through of the area. LeClair stepped onto a joist in order to point to a wall, but was unaware that the joist had been freshly painted. LeClair then slipped and sustained personal injury.

Prior to the commencement of Regal’s work, INSCORP issued a commercial general liability policy to Regal that provided additional insured coverage. The policy provided for additional insured coverage “only with respect to liability arising out of [Regal’s] ongoing operations performed for that [additional] insured.”
Regal and INSCORP commenced an action for a declaratory judgment against URS and its insurer, National Union, in an effort to avoid any obligation to provide coverage to URS. The Supreme Court held that INSCORP was obligated to defend and indemnify URS in relation to LeClair’s personal injury action. Regal and INSCORP appealed.

The Appellate Division, Second Department, upheld the Supreme Court’s decision. Specifically, the court reasoned that Regal had responsibilities that encompassed all of the demolition and construciton work to be done during the course of the project. As such, Regal’s responsibilities under its contract with URS could not be separated from the cause of and occurrence of LeClair’s incident. The Appellate Division indicated that the general nature of the operation in the course of which the injury was sustained should be the focus of a court’s analysis of additional insured language as opposed to the precise cause of the accident.

Thanks to Brad Thelander for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05831.htm

In Dick v. Wappinger, plaintiff filed an action to recover damages for personal injuries against the Town of Wappinger when she fell at the entrance to the NYS police barracks in Wappinger Falls. The Town leased the building to the NYS police pursuant to a written lease. The Town moved for summary judgment on the ground that it did not receive prior written notice of the defect. The Supreme Court, Dutchess County, granted the motion. On appeal, the Appellate Division, Second Department, reversed.

The Appellate Division ultimately found that when a municipality leases property and acts as a landlord, it is subject to the same principles of tort law as a private landlord. Accordingly, the plaintiffs were not required to establish prior written notice to the Town of the alleged defect in order to maintain an action against the Town.

Two Justices dissented from the majority opinion, arguing that there are only two exceptions to the written notice rule: 1) where the municipality created the defect; or 2) where a special use is found. The dissenting Justices argued that the majority’s ruling improperly created a third exception: where the municipality functions in a proprietary capacity.

Thanks to Robin Green for her contribution to this post.

http://www.nycourts.gov/reporter/3dseries/2009/2009_04371.htm

In Rodriguez v. Hudson View Associates (http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05530.htm), the plaintiff slipped on water that had been tracked into the lobby of the building where she worked. She claimed that the owner had failed to place any mats on the floor to address this condition. The owner moved for summary judgment, claiming no notice of the condition. The motion was denied because the owner failed to offer evidence as to when the floor was last inspected or examined before the plaintiff’s accident.

Mike Monteith posted this entry.

In McMillan v. Wal-Mart Stores, Inc. , the appellate division affirmed the dismissal with prejudice of a complaint filed one day after the two year statute of limitations had expired. Plaintiff had claimed the statute was equitably tolled due to ongoing settlement negotiations, however, the court noted that there was never any discussion about the statute of limitations, nor any communication stating any understanding that plaintiff would not be filing a complaint while the parties continued to negotiate. The Court held that an exchange of communications shortly before the statute of limitations runs cannot, without more, be converted into tolling or we would either abolish the statute of limitations or deter carriers from communicating about settlement before the statute runs.

http://www.judiciary.state.nj.us/opinions/a1043-08.pdf

In Industry City Management v. Atlantic Mutual Insurance Company, notice of a claim was sent to Atlantic Mutual on Industry’s behalf by its own insurer’s claims administrator, seeking coverage for Industry as an additional insured. The Court held that this was sufficient notice pursuant to Insurance Law 3420(a)(3), and thus required Atlantic Mutual to timely disclaim coverage. Atlantic Mutual’s disclaimer for late notice, made seven months after receipt of the notice from Industry City’s carrier, was untimely and ineffective.

http://www.nycourts.gov/reporter/3dseries/2009/2009_05681.htm

In Butler v. City of Gloversville (http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05369.htm) the plaintiff fell from a playground slide and sustained injuries. The plaintiff’s theory of recovery was that the defendants failed to use the proper ground cover, such as pea stone. The New York Court of Appeals denied the defendants’ motion for summary judgment because the plaintiff’s expert found support for his theory in the US Consumer Safety Commision’s Handbook for Public Playground Safety.

Posted by Justin Rowe.

In Cassini v. Soussou, the Appellate Division ruled that an injured driver could not recover from an excess policy purchased by the son of the defendant, due to an exclusion denying coverage when use of a family member owned vehicle other than the named insured’s ” covered auto” was involved. The Court found the exclusion to be unambiguous, and that excluding coverage for a separately insured family member’s use of a noncovered auto was not uncommon, was legally sound and was supported by the policy.

http://www.judiciary.state.nj.us/opinions/a5205-07.pdf

The plaintiff, a spectator at a soccer game, brought suit against Nassau County and a soccer league for injuries she sustained when a soccer player kicked her as she watched a game. The plaintiff was standing roughly three feet from the out of bounds line. The league provided bleachers for spectators and had security guards on hand enforcing the league policy barring spectators from standing on the sidelines.

The court granted the defendants’ motion for summary judgment because the plaintiff chose to stand near the sidelines even though she witnessed players chase the ball after it went of bounds on at least three times prior to her accident. The court held that the plaintiff placed herself in close proximity to the field of play despite observing the precise risks that caused her accident and despite the fact that the league provided her with a safe alternative place to watch the game. Therefore, applying the doctrine of assumption of the risk, the plaintiff’s recovery is barred.

Thanks to Maju Varghese for his contribution to this post.