You are here: / / TRIAL JUDGE GAVE THE WRONG JURY INSTRUCTION CONCERNING THE LIABILITY OF...
,

TRIAL JUDGE GAVE THE WRONG JURY INSTRUCTION CONCERNING THE LIABILITY OF AN INSURANCE COMPANY FOR DAMAGE WHEN THERE IS EVIDENCE THAT THE CAUSE OF THE DAMAGE COULD EITHER BE A CAUSE COVERED BY THE POLICY OR A CAUSE NOT COVERED BY THE POLICY, THE OVER $1.8 MILLION VERDICT REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the over $1.8 million verdict in this property damage case, determined that the trial judge did not give the proper jury instruction. There was evidence that the water damage during Hurricane Sandy could have been caused by  water which backed up in the sewers, which was covered by the police, or surface water, which was not covered by the policy:

“A trial court is required to state the law relevant to the particular facts in issue, and a set of instructions that confuses or incompletely conveys the germane legal principles to be applied in a case requires a new trial” … . Under an all-risk property damage policy, where multiple perils work together to cause the same loss, and one or more of those perils is covered under the policy, New York follows the majority rule such that the loss will be covered if the “proximate, efficient and dominant cause” of the loss is covered by the policy … . By contrast, a minority of jurisdictions adhere to the broader “concurrent cause” rule, under which a loss will be covered “if any one of multiple non-remote causes of the same loss is a non-excluded peril” … .

Here, the Supreme Court’s instruction to the jury misstated the law in that it permitted the jury to find coverage for the plaintiffs’ loss if one or more covered perils acted together with a noncovered peril to cause the same loss, without regard to whether the efficient or dominant cause of the loss was a covered peril under the policy. Since the error may have prejudiced the defendant, a new trial is warranted … . Greenberg v Privilege Underwriters Reciprocal Exch., 2019 NY Slip Op 01202, Second Dept 2-20-19

 

You might also like
ALTHOUGH PLAINTIFF INDICATED SHE DID NOT KNOW THE CAUSE OF HER FALL IN HER DEPOSITION, IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHE RAISED A QUESTION OF FACT ABOUT WHETHER THE FLOOR WAS WET FROM TRACKED IN SNOW AND DEFENDANT DID NOT PRESENT ANY EVIDENCE ON THE ISSUE OF NOTICE (SECOND DEPT).
BASED ON THE SUBMITTED EVIDENCE OF THIRD PARTY CULPABILITY IN THIS RAPE AND MURDER CASE, DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE THE JUDGMENT OF CONVICTION (SECOND DEPT).
THE SENTENCING COURT SHOULD NOT HAVE ENHANCED DEFENDANT’S SENTENCE BASED ON A POSITIVE DRUG TEST; DEFENDANT DID NOT VIOLATE ANY OF THE TERMS OF THE PLEA AGREEMENT AS IT WAS DESCRIBED ON THE RECORD BY THE COURT; DEFENDANT SUCCESSFULLY COMPLETED THE RESIDENTIAL DRUG TREATMENT PROGRAM, WHICH IS WHAT THE PLEA AGREEMENT CALLED FOR (SECOND DEPT).
BANK’S FAILURE TO COMPLY WITH COURT’S ORDER TO MOVE FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION WITHIN 60 DAYS DID NOT SUPPORT DISMISSAL FOR FAILURE TO PROSECUTE PURSUANT TO CPLR 3216 (SECOND DEPT).
FAMILY COURT SHOULD NOT HAVE DETERMINED HAWAII WAS THE MORE APPROPRIATE FORUM FOR THIS CUSTODY DISPUTE, HAWAII NEVER HAD SUBJECT MATTER JURISDICTION AND WAS UNAWARE OF THE FATHER’S NEW YORK CUSTODY PROCEEDINGS UNTIL AFTER THE HAWAII PROCEEDINGS WERE COMPLETED, THE HAWAII RULINGS MUST BE VACATED, ONLY THEN CAN FAMILY COURT MAKE A VALID ANALYSIS OF THE APPROPRIATE FORUM (SECOND DEPT).
IN THIS FORECLOSURE ACTION, THE FAILURE TO ATTACH THE RELEVANT BUSINESS RECORDS, AS WELL AS THE FAILURE TO PROVIDE PROOF OF MAILING, RENDERED THE PROOF OF COMPLIANCE WITH THE NOTICE-OF-DEFAULT PROVISIONS OF THE MORTGAGE INSUFFICIENT (SECOND DEPT).
DEFFENDANT, WHO WAS 14 AT THE TIME OF THE ROBBERY, SHOULD HAVE BEEN ADJUDICATED A YOUTHFUL OFFENDER.
THE LAW OF THE CASE DOCTRINE PRECLUDED SUPREME COURT’S CONSIDERATION OF ADDITIONAL EVIDENCE TO JUSTIFY SENTENCING DEFENDANT AS A PERSISTENT VIOLENT FELONY OFFENDER; THE APPELLATE COURT HAD SENT THE MATTER BACK FOR RESENTENCING AFTER FINDING PERSISTENT VIOLENT FELONY OFFENDER STATUS WAS NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

COMPLAINT AGAINST A FOSTER CARE AGENCY STATED CAUSES OF ACTION FOR NEGLIGENT... LATE NOTICE OF CLAIM SHOULD HAVE BEEN DEEMED TIMELY SERVED, MEDICAL RECORDS...