In Sirius America Insurance Company et al v. Vigo Construction Corp., Martin Gonzalez and East Wind Contracting, Inc., 2008 NY Slip Op 01134, AD Index 2006-07895, Queens Co. Index 3209/05, the trial court denied all motions, including the cross motion for summary judgment by Martin Gonzalez seeking a declaration that Sirius American Insurance Company was required to defend and indemnify Vigo Construction Corp., in the underlying action, Martin Gonzalez v. Vigo Contruction Corp., as well as the motion by Sirius, seeking a declaration it was not obligated to defend and indemnify Vigo in the underlying matter.

In reversing the lower court, the Appellate Division – Second Department, cited Insurance Law §3420 which requires an insurer to provide a written disclaimer “as soon as is reasonably possible.” The Appellate Division further held that any written disclaimer is measured from the time when the insurer has sufficient knowledge of facts entitling it to disclaim, or know that it will disclaim. Here, the Court found Sirius sent a disclaimer 34 days after it knew or should have known the basis for denying coverage. Apparently without explanation for this delay by Sirius, the Appellate Division found the 34-day delay to be unreasonable as a matter of law.

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_01134.htm

After allegedly buying Andy Warhol’s 1981 Dollar Sign painting at a New Jersey flea market for $180, Jason Beltrez brought the painting to Christie’s auction house to sell. Christie’s checked with the Art Loss Register and determined the painting had been stolen from Martin Lawrence Galleries in SoHo on February 14, 1998. The battle now begins as the art gallery is suing Mr. Beltrez for ownership.

http://www.nytimes.com/2008/02/06/nyregion/06warhol.html?_r=1&scp=2&sq=warhol&st=nyt&oref=slogin

In Employers’ Fire Insurance Company v. Brookner, 2008 NY Slip Op. 00448, AD Index 2007-02514, Kings Co. Index 13987/06, tenants and owners of a commercial building owned by RAIA Realty Corp allegedly sustained extensive water damage due to a faulty hose of a laser machine owned by Andrew Brookner, the third floor tenant. Employers’ Fire Insurance Company, RAIA Realty Corp’s insurer, paid the claims of its insureds and the first floor tenant.

Meanwhile the second floor tenants, Alexandra and Edward Etkin, commenced a lawsuit against RAIA, RAIA’s principal and Brookner for property damage and personal injury stemming from this same incident. RAIA and its principal asserted crossclaims for contribution and indemnification against Brookner. Ultimately, without contribution from RAIA or its principal, Brookner paid the settlement reached, a stipulation of discontinuance was executed and the case was discontinued with prejudice.

Thereafter, Employers’ Fire Insurance Company commenced a subrogation action against Brookner to recoup the monies paid to its insureds as a result of the water damage caused by Brookner’s negligence. Brookner moved to dismiss, asserting that this subrogation action was barred by res judicata based upon the stipulation of discontinuance in the Etkin case, which arose from the same occurrence. The trial court denied this motion.

In affirming the lower court’s decision, the Appellate Division – Second Department, stated that subrogee insurer stands in the shoes of its insureds and that the doctrine of res judicata only bars additional actions between the same parties, on the same claims, based upon the same harm. RAIA and its principal’s crossclaims in the Etkin case were based upon Etkins’ harm whereas the subrogation action was based upon the harm suffered by RAIA and its principal. Moreover, the stipulation of discontinuance in the Etkin case was silent as to the crossclaims. In the end, the Court determined since RAIA and its principal were not barred by res judicata, the subrogation action could proceed.

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_00448.htm

In Monahan v. New York City Department of Education, 2008 NY Slip Op 00241, AD Index 2006-08975, Kings Co. Index 22106/05, the plaintiff, a physical education teacher at a City high school alleges she tripped over a wheel attached to the base of a volleyball net and twisted her ankle after she adjusted a volleyball net improperly set up by another teacher. Both plaintiff and defendants moved for summary judgment, the defendants asserting they breached no duty owed to plaintiff and that the injury occurred while plaintiff performed a task inherent to her employment. The trial court denied all motions.

In reversing the lower court’s decision and granting defendants summary judgment, the Appellate Division – Second Department found that while it is an employer’s duty to provide its employees a safe place to work, this duty does not extend to hazards which are inherent to the employee’s work. Th Appellate Division added that an employer is not obligated to secure the safety of an employee against a condition that may be readily observed, considering the age, intelligence and experience of the employee.

http://www.nycourts.gov/reporter/3dseries/2008/2008_00241.htm

Enron investors’ lawsuit, attempting to recoup losses from investment banks that did business with the defunct energy company, suffered a major setback when the United States Supreme Court refused to review a lower court’s ruling which dismissed this theory of liability. Notably, a week earlier, in a different, but similar action involving investors of Charter Communications, the Supreme Court ruled investors in that case did not have a right to sue outside entities that did business with Charter Communications because those investors did not rely on the deceptive acts of those entities.

http://www.nytimes.com/2008/01/23/business/23enron.html?_r=1&scp=2&sq=Enron&st=nyt&oref=slogin

Three former Drug Enforcement Administration agents filed a defamation lawsuit in Federal Court in lower Manhattan, accusing NBC Universal Studios of including an incorrect postscript at the end of its film “American Gangster”, indicating three-quarters of the agents that served with the New York D.E.A. were convicted with the help of Frank Lucas, the film’s main character. The plaintiffs also took issue with how Mr. Lucas’ arrest was depicted in the movie.

http://www.nytimes.com/2008/01/17/nyregion/17dea.html?ref=todayspaper

The United States Supreme Court unanimously overturned the 2006 decision by the Court of Appeals – Second Circuit that found New York’s party convention system for choosing judicial nominees unconstitutional. While a victory for New York’s Board of Elections, four of the nine justices of the Supreme Court criticized the convention system. In particular, Justice Stevens, quoting Justice Thurgood Marshall, wrote, “The Constitution does not prohibit legislatures from enacting stupid laws.”

http://www.nytimes.com/2008/01/17/nyregion/17scotus.html?_r=1&scp=1&sq=supreme+Court+political&oref=slogin

Reminding us that not all experts are right for the case in which they are hired and should be challenged where appropriate, a Nassau County Supreme Court judge has refused to allow an engineer with expertise in “foundations, building structures, marine and heavy construction” to testify that a plastic restaurant chair was defective. Haring v. Still Waters.