You are here: / INJURED PARTY DID NOT TIMELY NOTIFY INSURER OF HIS CLAIM, INSURER NOT OBLIGATED...

Search Results

/

INJURED PARTY DID NOT TIMELY NOTIFY INSURER OF HIS CLAIM, INSURER NOT OBLIGATED TO SATISFY DEFAULT JUDGMENT AGAINST THE INSURED.

The Second Department determined the injured party (Glanz) did not timely notify the insurer (New York Marine) of the claim against the insured. Therefore, the insurer was not obligated to satisfy the default judgment entered against the insured:

“Insurance Law § 3420(a)(2) expressly permits an injured party to recover any unsatisfied judgment against an insured, directly from the insurer” … . Insurance Law § 3420(a)(3) requires the injured party to demonstrate that he or she acted diligently in attempting to ascertain the identity of the insurer, and thereafter expeditiously notified the insurer … . “In determining the reasonableness of an injured party’s notice, the notice required is measured less rigidly than that required of the insureds” … . “The injured person’s rights must be judged by the prospects for giving notice that were afforded him [or her], not by those available to the insured” …  “What is reasonably possible for the insured may not be reasonably possible for the person he [or she] has injured. The passage of time does not of itself make delay unreasonable” … .

Here, New York Marine made a prima facie showing that Glanz failed to act diligently in attempting to ascertain New York Marine’s identity and in expeditiously notifying it of his claim … . In opposition, Glanz failed to raise a triable issue of fact … . Glanz v New York Mar. & Gen. Ins. Co., 2017 NY Slip Op 03494, 2nd Dept 5-3-17

 

INSURANCE LAW (INJURED PARTY DID NOT TIMELY NOTIFY INSURER OF HIS CLAIM, INSURER NOT OBLIGATED TO SATISFY DEFAULT JUDGMENT AGAINST THE INSURED)

/

LATE NOTIFICATION OF THE INSURER BY THE INSURED ABOUT AN ACTION AGAINST THE INSURED DOES NOT EXCUSE A LATE DISCLAIMER, TIMELINESS OF A DISCLAIMER DEPENDS ON WHEN THE INSURER FIRST LEARNED OF THE ACTION.

The Second Department noted that an insured’s failure to timely notify the insurer of an action does not relieve the insurer of the obligation to timely disclaim. Whether a disclaimer is timely is determined by when the insurer first learned of the action, not when the insured notified it of the action:

… [The] “failure of an insured to timely notify the insurer of a claim does not excuse the insurer’s failure to timely disclaim coverage” … . “The timeliness of an insurer’s disclaimer is measured from the point in time when the insurer first learns of the grounds for disclaimer of liability or denial of coverage” … . In opposition to the cross motion, [the insured] raised triable issues of fact as to whether the plaintiff acquired knowledge of the commencement of the underlying action in April 2012, or, at the latest, October 2012, and thus, whether it timely disclaimed coverage in March 2013, on the basis of, inter alia, late receipt of a copy of the summons and complaint. Evanston Ins. Co. v P.S. Bruckel, Inc., 2017 NY Slip Op 03489, 2nd Dept 5-3-17

INSURANCE LAW (LATE NOTIFICATION OF THE INSURER BY THE INSURED ABOUT AN ACTION AGAINST THE INSURED DOES NOT EXCUSE A LATE DISCLAIMER, TIMELINESS OF A DISCLAIMER DEPENDS ON WHEN THE INSURER FIRST LEARNED OF THE ACTION)/DISCLAIMER (INSURANCE LAW, LATE NOTIFICATION OF THE INSURER BY THE INSURED ABOUT AN ACTION AGAINST THE INSURED DOES NOT EXCUSE A LATE DISCLAIMER, TIMELINESS OF A DISCLAIMER DEPENDS ON WHEN THE INSURER FIRST LEARNED OF THE ACTION)

/ ,

BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET.

The Second Department determined plaintiff bank failed to demonstrate standing to bring the foreclosure action because the criteria for the business records exception to the hearsay rule were not met:

Here, the plaintiff attempted to establish its standing by submitting the affidavit of Kelly Thompson, an Assistant V.P., Operations Team Manager, at Bank of America, N.A. (hereinafter BANA), the servicer of the defendant Juliet Willis’s loan on behalf of the plaintiff. Thompson averred, in relevant part, that her affidavit was based upon her review of BANA’s business records, and that upon review of such records, the note was physically transferred to the plaintiff “in or about March 2007.” The plaintiff failed to demonstrate that the records relied upon by Thompson were admissible under the business records exception to the hearsay rule (see CPLR 4518[a]) because Thompson, an employee of BANA, did not attest that she was personally familiar [*2]with the plaintiff’s recordkeeping practices and procedures … . Bank of N.Y. v Willis, 2017 NY Slip Op 03468, 2nd Dept 5-3-17

FORECLOSURE (BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET)/EVIDENCE (FORECLOSURE, STANDING, BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET)/HEARSAY (FORECLOSURE, STANDING, (BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET)/BUSINESS RECORDS EXCEPTION TO HEARSAY RULE (FORECLOSURE, STANDING, (BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET)

/

CAUSE OF ACTION FOR MONEY HAD AND RECEIVED SHOULD NOT HAVE BEEN DISMISSED.

The Second Department, reversing (modifying) Supreme Court, determined the cause of action for money had and received should not have been dismissed. Plaintiff alleged he gave the proceeds of an annuity to his sister (defendant) for safe-keeping (in her bank account) until he decided how to dispose of it. The agreement was oral but the cause of action was in the nature of quasi-contract (unjust enrichment) and was therefore not barred by the statute of frauds:

“The essential elements of a cause of action for money had and received are (1) the defendant received money belonging to the plaintiff, (2) the defendant benefitted from receipt of the money, and (3) under principles of equity and good conscience, the defendant should not be permitted to keep the money. The action depends upon equitable principles in the sense that broad considerations of right, justice and morality apply to it” … .

Here, the plaintiff alleged sufficient facts to assert a cause of action for money had and received. The complaint alleges that the defendant received a benefit when she received the proceeds of the plaintiff’s surrendered annuity, with the understanding that the defendant would keep those proceeds safe while the plaintiff determined how he wanted to dispose of the funds … . Contrary to the defendant’s contention, a plaintiff need not allege malice to state a cause of action for money had and received … . Litvinoff v Wright, 2017 NY Slip Op 03501, 2nd Dept 5-3-17

 

/ ,

NEW INFORMATION IN REPLY PAPERS PROPERLY CONSIDERED BY THE COURT.

The Second Department, in finding plaintiff bank had established standing to bring the foreclosure action, explained when a court may consider new information in a reply affidavit (re: a motion for summary judgment):

… [I]t was not error for the Supreme Court to consider the reply affidavit, which was submitted in reply to the appellant’s opposition. A party moving for summary judgment generally cannot meet its prima facie burden by submitting evidence for the first time in reply … . However, there are exceptions to this general rule, including when the evidence is submitted in response to allegations raised for the first time in the opposition papers or when the other party is given an opportunity to respond to the reply papers… . Further, “[t]he function of reply papers is to address arguments made in opposition to the position taken by the movant” … .

Here, the Supreme Court properly considered the reply affidavit because the affidavit was offered in response to the appellant’s allegation in opposition to the motion that the plaintiff never had possession of the note, and merely clarified the plaintiff’s initial submissions as to its possession of the note at the time of commencement … . Central Mtge. Co. v Jahnsen, 2017 NY Slip Op 03474, 2nd Dept 5-3-17

CIVIL PROCEDURE (NEW INFORMATION IN REPLY PAPERS PROPERLY CONSIDERED BY THE COURT)/SUMMARY JUDGMENT (NEW INFORMATION IN REPLY PAPERS PROPERLY CONSIDERED BY THE COURT)/REPLY PAPERS (SUMMARY JUDGMENT, FORECLOSURE, NEW INFORMATION IN REPLY PAPERS PROPERLY CONSIDERED BY THE COURT)/FORECLOSURE (SUMMARY JUDGMENT, NEW INFORMATION IN REPLY PAPERS PROPERLY CONSIDERED BY THE COURT)

/

CRITERIA FOR DISCLOSURE OF ORIGINAL DOCUMENTS FOR FORENSIC TESTING EXPLAINED, NOT MET HERE.

The Second Department determined plaintiff’s motion to compel disclosure original documents in this medical malpractice action for forensic analysis was properly denied (albeit for the wrong reason). The court explained the deficiencies in the plaintiff’s motion:

As to the motion to produce original records for forensic analysis, the plaintiff failed to establish that the proposed testing was not destructive, and failed to adequately indicate the extent to which the testing would alter or destroy the original records … . Moreover, the plaintiff failed to establish adequate justification for the testing … . Freely v Donnenfeld, 2017 NY Slip Op 03490, 2nd Dept 5-3-17

CIVIL PROCEDURE (CRITERIA FOR DISCLOSURE OF ORIGINAL DOCUMENTS FOR FORENSIC TESTING EXPLAINED, NOT MET HERE)/DISCLOSURE (ORIGINAL DOCUMENTS, CRITERIA FOR DISCLOSURE OF ORIGINAL DOCUMENTS FOR FORENSIC TESTING EXPLAINED, NOT MET HERE)/FORENSIC ANALYSIS OF ORIGINAL DOCUMENTS (CIVIL PROCEDURE, CRITERIA FOR DISCLOSURE OF ORIGINAL DOCUMENTS FOR FORENSIC TESTING EXPLAINED, NOT MET HERE)

/

CONTRACT BETWEEN NYU AND A PHARMACEUTICAL COMPANY CONCERNING THE DEVELOPMENT OF A CANCER-INHIBITING DRUG IS AMBIGUOUS, NYU’S COMPLAINT SEEKING ROYALTIES SHOULD NOT HAVE BEEN DISMISSED.

The First Department, in a full-fledged opinion by Justice Andrias, over a two-justice dissenting opinion, reversing Supreme Court, determined the terms of a contract between New York University (NYU) and a pharmaceutical company were ambiguous. Therefore NYU’s complaint seeking royalties for its role in the development of a cancer-inhibiting drug should not have been dismissed. The language of the contract is too technical to fairly summarize here. New York Univ. v Pfizer Inc., 2017 NY Slip Op 03464, 1st Dept. 5-2-17

 

CONTACT LAW (CONTRACT BETWEEN NYU AND A PHARMACEUTICAL COMPANY CONCERNING THE DEVELOPMENT OF A CANCER-INHIBITING DRUG IS AMBIGUOUS, NYU’S COMPLAINT SEEKING ROYALTIES SHOULD NOT HAVE BEEN DISMISSED)/AMBIGUITY (CONTRACT LAW, CONTRACT BETWEEN NYU AND A PHARMACEUTICAL COMPANY CONCERNING THE DEVELOPMENT OF A CANCER-INHIBITING DRUG IS AMBIGUOUS, NYU’S COMPLAINT SEEKING ROYALTIES SHOULD NOT HAVE BEEN DISMISSED)

/ , ,

NO OUT-OF-POCKET LOSS ALLEGED, FRAUDULENT INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined plaintiff chef’s failure to allege out-of-pocket loss in this fraudulent inducement action required dismissal of the complaint for failure to state a cause of action. Plaintiff was hired by defendant restaurant (Chipotle) to develop a ramen restaurant chain. Plaintiff was an at will employee by the terms of his contract. All went well until plaintiff was told defendant had contracted with another chef for the same service, the deal had fallen apart, and the other chef would sue upon the opening of the ramen restaurant. Plaintiff was fired after confronting defendant about the deal with the other chef. Plaintiff alleged he was fraudulently induced to contract with Chipotle in that he never would have entered the agreement had he been informed of the failed deal with the other chef:

In New York, as in multiple other states, “‘[t]he true measure of damage is indemnity for the actual pecuniary loss sustained as the direct result of the wrong’ or what is known as the ‘out-of-pocket’ rule” … . Under that rule, “[d]amages are to be calculated to compensate plaintiffs for what they lost because of the fraud, not to compensate them for what they might have gained . . . . [T]here can be no recovery of profits which would have been realized in the absence of fraud” … . Moreover, this Court has “consistent[ly] refus[ed] to allow damages for fraud based on the loss of a contractual bargain, the extent, and indeed . . . the very existence of which is completely undeterminable and speculative” … . Connaughton v Chipotle Mexican Grill, Inc., 2017 NY Slip Op 03445, CtApp 5-2-17

FRAUD (NO OUT-OF-POCKET LOSS ALLEGED, FRAUDULENT INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION)/CONTRACT LAW (FRAUDULENT INDUCEMENT, NO OUT-OF-POCKET LOSS ALLEGED, FRAUDULENT INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION)/FRAUDULENT INDUCEMENT (CONTRACT LAW, NO OUT-OF-POCKET LOSS ALLEGED, FRAUDULENT INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION)/EMPLOYMENT LAW (FRAUDULENT INDUCEMENT, CONTRACT LAW, NO OUT-OF-POCKET LOSS ALLEGED, FRAUDULENT INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION)

/ ,

WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER.

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined the warrantless search of a parolee’s empty car and seizure of a firearm by police officers was lawful. Defendant parolee argued only a parole officer, not a police officer, could conduct a lawful search. The Court of Appeals held that a parolee’s reduced expectation of privacy applied irrespective of whether a parole or police officer conducted the search:

In Huntley [43 NY2d 175, 181 …] we distinguished between parole officers and police officers, noting that searches that may be reasonably justified if undertaken by a parole officer are not necessarily constitutional if undertaken by a police officer … . Nevertheless, we concomitantly observed that, “in any evaluation of the reasonableness of a particular search or seizure,” whether undertaken by parole or police officers, “the fact of defendant’s status as a parolee is always relevant and may be critical” … .

On the facts presented here, Huntley does not compel the conclusion that the search was unconstitutional … . The detectives had a high degree of individualized suspicion based on a tip from a known individual — who correctly identified defendant’s vehicle and its location — indicating that defendant had a firearm in his vehicle, the recent arrival of which was corroborated by the absence of the vehicle during the detectives’ earlier visit and the warmth of the hood. In light of this tip, taken together with defendant’s reduced expectation of privacy, there is support in the record for the conclusion that the search of defendant’s vehicle was lawful and reasonable … . People v McMillan, 2017 NY Slip Op 03446, CtApp 5-2-17

 

CRIMINAL LAW (WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)/SEARCH AND SEIZURE (WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)/SUPPRESSION (CRIMINAL LAW, (WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)/EVIDENCE (CRIMINAL LAW, SEARCH AND SEIZURE, WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)/PAROLEES (REDUCED EXPECTATION OF PRIVACY, SEARCH AND SEIZURE, WARRANTLESS SEARCH OF A PAROLEE’S EMPTY CAR WAS LAWFUL, NOTWITHSTANDING THE SEARCH WAS DONE BY A POLICE OFFICER, NOT A PAROLE OFFICER)

/ ,

EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION’S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE’S CASE TO PROVE INTENT.

The Court of appeals, in a full-fledged opinion by Judge DiFiore, determined that even though defendant relied solely on the prosecution's evidence to raise the agency defense to the charged drug sale, Molineux evidence of defendant's prior conviction for a drug sale was admissible in the People's direct case to prove intent:

… [D]efendant plainly raised the issue of his intent and particular role in the drug sale as a salesman based on his arguments to the jury at trial, his cross-examination of the People's witnesses, and his specific request for an agency charge to the jury. The trial court then conducted the proper balancing analysis, determining that it would permit introduction of only one of defendant's prior convictions. Under these circumstances, the People were properly permitted by the trial court to use the admissible evidence of defendant's prior drug sale conviction on the issue of intent in their case-in-chief … . People v Valentin, 2017 NY Slip Op 03444, CtApp 5-2-17

CRIMINAL LAW (EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION'S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE'S CASE TO PROVE INTENT)/EVIDENCE (CRIMINAL LAW, EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION'S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE'S CASE TO PROVE INTENT)/AGENCY DEFENSE (CRIMINAL LAW, EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION'S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE'S CASE TO PROVE INTENT)/MOLINEUX EVIDENCE (EVEN THOUGH DEFENDANT RELIED SOLELY ON THE PROSECUTION'S EVIDENCE TO RAISE THE AGENCY DEFENSE TO A DRUG SALE, EVIDENCE OF A PRIOR DRUG-SALE CONVICTION WAS PROPERLY ADMITTED IN THE PEOPLE'S CASE TO PROVE INTENT)

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