Page 994 – New York Appellate Digest

/ Contract Law

THE STIPULATED SUM CONTRACT FOR SCHOOL CONSTRUCTION DID NOT ALLOW THE SCHOOL DISTRICT ACCESS TO THE PROGRAM MANAGER’S ACTUAL CONSTRUCTION AND ADMINISTRATIVE COSTS (FOURTH DEPT).

The Fourth Department, over a two-justice partial dissent, in a complex decision covering many issues not summarized here, determined that the language of the contracts and agreements re: the construction of new schools precluded the City of Buffalo Joint Schools Construction Board (Board) from learning the program manager’s (LPC’s) construction and administrative costs. The Board entered construction agreements with LPC as an agent of the City of Buffalo School District (District):

In 2014 and 2015, after operating under the [relevant contracts and agreements] for over 12 years, the Board and the District refused to process or pay the last four payment requisitions until LPC provided them with documentation concerning LPC’s actual construction and administrative costs, information that LPC contended was confidential, proprietary and not subject to disclosure under the [relevant contracts and agreements]. * * *

[The relevant agreements provide] the District with audit and examination rights to any and all records related to the ” construction contingency’ ” portion of the stipulated sum. Nevertheless, that section further provides that, “[n]otwithstanding anything to the contrary contained herein, the foregoing audit and examination rights do no[t] apply to any records maintained by [LPC] (or . . . on behalf of [LPC]) with respect to any Project Administration Costs or Construction Costs other than records directly related to the expenditure of the construction contingency.’ ” …

The contract is a stipulated-sum construction contract. In such contracts, “[t]he owner is obligated to pay the contractor the fixed amount no matter what it costs to finish the work” and, generally, “the owner is not entitled to review the costs that the contractor incurs during the project” … . Considering the general purpose of the contract and the fact that the [related agreements] specifically provide that the audit rights for construction contingency funds did not apply to records concerning LPC’s “Project Administration Costs or Construction Costs” unrelated to the construction contingency, we conclude that the only reasonable way to interpret [the applicable contract] is to determine that it applies to the District’s actual costs only. City of Buffalo City Sch. Dist. v LPCiminelli, Inc., 2018 NY Slip Op 01832, Fourth Dept 3-16-18

CONTRACT LAW (THE STIPULATED SUM CONTRACT FOR SCHOOL CONSTRUCTION DID NOT ALLOW THE SCHOOL DISTRICT ACCESS TO THE PROGRAM MANAGER’S ACTUAL CONSTRUCTION AND ADMINISTRATIVE COSTS (FOURTH DEPT))/CONSTRUCTION CONTRACTS (THE STIPULATED SUM CONTRACT FOR SCHOOL CONSTRUCTION DID NOT ALLOW THE SCHOOL DISTRICT ACCESS TO THE PROGRAM MANAGER’S ACTUAL CONSTRUCTION AND ADMINISTRATIVE COSTS (FOURTH DEPT))/STIPULATED SUM CONTRACTS (THE STIPULATED SUM CONTRACT FOR SCHOOL CONSTRUCTION DID NOT ALLOW THE SCHOOL DISTRICT ACCESS TO THE PROGRAM MANAGER’S ACTUAL CONSTRUCTION AND ADMINISTRATIVE COSTS (FOURTH DEPT))

March 16, 2018

/ Civil Procedure

ATTEMPT TO FILE AND SERVE AN AMENDED SUMMONS AND COMPLAINT WAS UNTIMELY AND THE RELATION BACK DOCTRINE DID NOT APPLY, TWO-JUSTICE DISSENT DISAGREED ON THE RELATION-BACK AND SEVERAL OTHER SUBSTANTIVE PROCEDURAL ISSUES (FOURTH DEPT).

The Fourth Department, over an extensive two-justice dissent which addresses many substantive procedural issues not summarized here, determined plaintiff’s attempt to file and serve an amended complaint was untimely and the relation-back doctrine did not apply:

Pursuant to CPLR 203 (f), “[a] claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.” It is well established that “the linchpin’ of the relation back doctrine [is] notice to the defendant within the applicable limitations period”… . Here, it is undisputed that the original complaint was never served on defendants. The original complaint thus did not give defendants notice of the transactions or occurrences to be proved pursuant to the amended complaint. The claims in the amended complaint, therefore, are measured for timeliness by service (or filing in this case) of the amended complaint … . “Because no one was served until [after the statute of limitations expired], there is no basis to conclude that defendant[s] had any idea that a lawsuit was pending, much less that [they] would be . . . named [as] defendants,” within the applicable limitations period … . Vanyo v Buffalo Police Benevolent Assn., Inc., 2018 NY Slip Op 01827, Fourth Dept 3-16-18

CIVIL PROCEDURE (ATTEMPT TO FILE AND SERVE AN AMENDED SUMMONS AND COMPLAINT WAS UNTIMELY AND THE RELATION BACK DOCTRINE DID NOT APPLY, TWO-JUSTICE DISSENT DISAGREED ON THE RELATION-BACK AND SEVERAL OTHER SUBSTANTIVE PROCEDURAL ISSUES (FOURTH DEPT))/RELATION-BACK DOCTRINE (ATTEMPT TO FILE AND SERVE AN AMENDED SUMMONS AND COMPLAINT WAS UNTIMELY AND THE RELATION BACK DOCTRINE DID NOT APPLY, TWO-JUSTICE DISSENT DISAGREED ON THE RELATION-BACK AND SEVERAL OTHER SUBSTANTIVE PROCEDURAL ISSUES (FOURTH DEPT))

March 16, 2018

CLAIMANT PROPERLY DENIED UNEMPLOYMENT BENEFITS DURING FIRST SEVEN WEEKS OF A STRIKE, ALTERNATIVE WORK SITE AVAILABLE (THIRD DEPT).

The Third Department determined claimant was properly denied unemployment insurance benefits for the first seven weeks of a strike because an alternative work site was available:

Pursuant to Labor Law § 592 (1), unemployment insurance benefits are suspended during the first consecutive seven weeks of a strike or industrial controversy beginning the day after a claimant ceases working due to a strike, unless there has been a peremptory lockout by the employer … . The record reflects that claimant did not work during the relevant period due to the strike, and that he refused his manager’s directive to report to an alternate work site that was open, staffed by supervisors and operational during the strike. Thus, substantial evidence supports the Board’s determination to suspend his benefits pursuant to Labor Law § 592 (1) … . The record also demonstrates that the employer did not, at any point, institute a work stoppage or lockout preventing employees from working but, rather, the union initiated the strike and work stoppage, in which claimant participated. Further, as the Board correctly determined, the employer’s decision to consolidate operations due to the strike and to temporarily assign claimant to a nearby work site did not constitute a “lockout[]” … , which only occurs upon “the refusal by an employer to furnish available work to [its] regular employees” … . Matter of Parron (Commissioner of Labor), 2018 NY Slip Op 01696, Second Dept 3-15-18

UNEMPLOYMENT INSURANCE (STRIKES, CLAIMANT PROPERLY DENIED UNEMPLOYMENT BENEFITS DURING FIRST SEVEN WEEKS OF A STRIKE, ALTERNATIVE WORK SITE AVAILABLE (THIRD DEPT))/EMPLOYMENT LAW (UNEMPLOYMENT INSURANCE, STRIKES, CLAIMANT PROPERLY DENIED UNEMPLOYMENT BENEFITS DURING FIRST SEVEN WEEKS OF A STRIKE, ALTERNATIVE WORK SITE AVAILABLE (THIRD DEPT))/STRIKES (UNEMPLOYMENT INSURANCE, CLAIMANT PROPERLY DENIED UNEMPLOYMENT BENEFITS DURING FIRST SEVEN WEEKS OF A STRIKE, ALTERNATIVE WORK SITE AVAILABLE (THIRD DEPT))

March 15, 2018

/ Criminal Law

UNDER THE LAW AT THE TIME OF THE OFFENSE, DEFENDANT COULD NOT BE SENTENCED TO ADDITIONAL INCARCERATION FOR A VIOLATION OF HIS CONDITIONAL DISCHARGE IN THIS DRIVING WHILE INTOXICATED CASE (THIRD DEPT).

The Third Department determined, under law at the time of the offense, defendant should not have been sentenced to additional incarceration for a violation of his conditional discharge in this driving while intoxicated case:

After he served his jail term, a declaration of delinquency was filed in 2015, claiming that he violated his conditional discharge by operating a vehicle without an ignition interlock device. In 2016, defendant admitted to violating the terms of his conditional discharge, and County Court revoked the conditional discharge and sentenced him to an additional aggregate prison term of 1 to 3 years, to be followed by three years of conditional discharge. Defendant appeals.

The People concede, and we agree, that pursuant to our recent decision in People v Coon (156 AD3d 105 [2017]), the sentence of imprisonment imposed upon defendant’s violation of the terms of his conditional discharge must be vacated. “A defendant must be sentenced according to the law as it existed at the time that he or she committed the offense and, at the time defendant operated a vehicle without an ignition interlock device, the applicable law did not allow for the imposition of an additional period of imprisonment” … . People v Arvidson, 2018 NY Slip Op 01682, Third Dept 3-15-18

CRIMINAL LAW (DWI, UNDER THE LAW AT THE TIME OF THE OFFENSE, DEFENDANT COULD NOT BE SENTENCED TO ADDITIONAL INCARCERATION FOR A VIOLATION OF HIS CONDITIONAL DISCHARGE IN THIS DRIVING WHILE INTOXICATED CASE (THIRD DEPT))/DRIVING WHILE INTOXICATED (VIOLATION OF CONDITIONAL DISCHARGE, UNDER THE LAW AT THE TIME OF THE OFFENSE, DEFENDANT COULD NOT BE SENTENCED TO ADDITIONAL INCARCERATION FOR A VIOLATION OF HIS CONDITIONAL DISCHARGE IN THIS DRIVING WHILE INTOXICATED CASE (THIRD DEPT))/SENTENCING (DWI, VIOLATION OF CONDITIONAL DISCHARGE, UNDER THE LAW AT THE TIME OF THE OFFENSE, DEFENDANT COULD NOT BE SENTENCED TO ADDITIONAL INCARCERATION FOR A VIOLATION OF HIS CONDITIONAL DISCHARGE IN THIS DRIVING WHILE INTOXICATED CASE (THIRD DEPT))/CONDITIONAL DISCHARGE, VIOLATION OF (DWI, UNDER THE LAW AT THE TIME OF THE OFFENSE, DEFENDANT COULD NOT BE SENTENCED TO ADDITIONAL INCARCERATION FOR A VIOLATION OF HIS CONDITIONAL DISCHARGE IN THIS DRIVING WHILE INTOXICATED CASE (THIRD DEPT))

March 15, 2018

/ Evidence, Negligence

NO SPECIFIC PROOF OF WHEN AREA OF THE SLIP AND FALL WAS LAST INSPECTED, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant did not demonstrate a lack of constructive notice of the condition alleged to have caused plaintiff’s parking lot slip and fall. The evidence described only general inspection practices and did not indicate when the area of the fall was last inspected:

… [T]he defendant failed to demonstrate that it lacked constructive notice of the hazardous condition which allegedly caused the injured plaintiff’s fall. The defendant relied upon, inter alia, the deposition testimony and affidavit of the property manager, which merely referred to her general inspection practices for the parking lot and provided no evidence regarding any specific inspection of the area in question prior to the injured plaintiff’s fall … . Maria De Los Angeles Baez v Willow Wood Assoc., LP, 2018 NY Slip Op 01589, Second Dept 3-14-18

NEGLIGENCE (NO SPECIFIC PROOF OF WHEN AREA OF THE SLIP AND FALL WAS LAST INSPECTED, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (CONSTRUCTIVE NOTICE, NO SPECIFIC PROOF OF WHEN AREA OF THE SLIP AND FALL WAS LAST INSPECTED, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (SLIP AND FALL, NO SPECIFIC PROOF OF WHEN AREA OF THE SLIP AND FALL WAS LAST INSPECTED, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

March 14, 2018

/ Evidence, Negligence

DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF THE FORMATION OF ICE IN THE PARKING LOT WHERE PLAINTIFF FELL, BECAUSE PLAINTIFF DID NOT ALLEGE THE ICE WAS A RECURRING CONDITION DEFENDANTS DID NOT NEED TO PRESENT PROOF THAT IT WAS NOT A RECURRING CONDITION, DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, over a dissent, determined defendants were entitled to summary judgment in this parking lot slip and fall case. Defendants demonstrated they did not have notice that water pooled in the parking lot in the area where plaintiff allegedly fell on ice. The dissent argued that defendants did not demonstrate the formation of ice was not a recurring condition. The majority held that, because plaintiff did not allege the ice was a recurring condition, defendants did not have to present evidence on the issue:

The evidence submitted by the defendants in support of their motion established, prima facie, that they did not create the alleged black ice condition or have actual or constructive notice of it … . In particular, Picone’s [Picone worked at the property] statement in his affidavit that water did not pond in the parking lot during the 38 years he worked at the property necessarily addresses and excludes any recurring condition in the same lot. In opposition to the prima facie showing, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact as to whether the defendants created the alleged condition or had actual or constructive notice of it. …

… .[T]he plaintiff failed to allege the existence of a recurring condition at the specific site of her fall. Thus, the defendants had no obligation, in support of their motion for summary judgment, to address the issue of a recurring condition. Further, in opposition to the motion, the plaintiff failed to argue that any recurring condition was specific to the location within the parking lot where she is alleged to have fallen … . Bader v River Edge at Hastings Owners Corp., 2018 NY Slip Op 01588, Second Dept 3-14-18

NEGLIGENCE (SLIP AND FALL, DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF THE FORMATION OF ICE IN THE PARKING LOT WHERE PLAINTIFF FELL, BECAUSE PLAINTIFF DID NOT ALLEGE THE ICE WAS A RECURRING CONDITION DEFENDANTS DID NOT NEED TO PRESENT PROOF THAT IT WAS NOT A RECURRING CONDITION, DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/SLIP AND FALL (DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF THE FORMATION OF ICE IN THE PARKING LOT WHERE PLAINTIFF FELL, BECAUSE PLAINTIFF DID NOT ALLEGE THE ICE WAS A RECURRING CONDITION DEFENDANTS DID NOT NEED TO PRESENT PROOF THAT IT WAS NOT A RECURRING CONDITION, DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/EVIDENCE (SLIP AND FALL, SUMMARY JUDGMENT, DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF THE FORMATION OF ICE IN THE PARKING LOT WHERE PLAINTIFF FELL, BECAUSE PLAINTIFF DID NOT ALLEGE THE ICE WAS A RECURRING CONDITION DEFENDANTS DID NOT NEED TO PRESENT PROOF THAT IT WAS NOT A RECURRING CONDITION, DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/RECURRING CONDITION (SLIP AND FALL, SUMMARY JUDGMENT, DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF THE FORMATION OF ICE IN THE PARKING LOT WHERE PLAINTIFF FELL, BECAUSE PLAINTIFF DID NOT ALLEGE THE ICE WAS A RECURRING CONDITION DEFENDANTS DID NOT NEED TO PRESENT PROOF THAT IT WAS NOT A RECURRING CONDITION, DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))/SUMMARY JUDGMENT (SLIP AND FALL, SUMMARY JUDGMENT, DEFENDANTS DEMONSTRATED THEY HAD NO NOTICE OF THE FORMATION OF ICE IN THE PARKING LOT WHERE PLAINTIFF FELL, BECAUSE PLAINTIFF DID NOT ALLEGE THE ICE WAS A RECURRING CONDITION DEFENDANTS DID NOT NEED TO PRESENT PROOF THAT IT WAS NOT A RECURRING CONDITION, DEFENDANTS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT))

March 14, 2018

/ Contract Law, Negligence

SNOW REMOVAL CONTRACTOR AND PARKING LOT MANAGER NOT LIABLE FOR SLIP AND FALL UNDER ESPINAL (SECOND DEPT).

The Second Department, in a comprehensive decision dealing with several related issues not summarized here, determined a snow removal contractor (Cristi) and parking lot manager (Five Star) demonstrated their contracts with Port Authority did not give rise to liability for a slip and fall in the parking lot:

A contractual obligation, standing alone, does not generally give rise to tort liability in favor of a third party unless one of three exceptions applies: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” … . …

The submissions in support of their respective motions show that neither Cristi nor Five Star created or exacerbated the icy condition and thereby launched an instrument of harm. Rather, they merely failed to be ” an instrument for good,’ which is insufficient to impose a duty of care upon a party not in privity of contract with the injured party” …

The contracts between the Port Authority, Cristi, and Five Star were not comprehensive and exclusive property maintenance agreements intended to displace the Port Authority’s general duty to keep the premises in a safe condition … . Castillo v Port Auth. of N.Y. & N.J., 2018 NY Slip Op 01593, Second Dept 3-14-18

NEGLIGENCE (SLIP AND FALL, SNOW REMOVAL CONTRACTOR AND PARKING LOT MANAGER NOT LIABLE FOR SLIP AND FALL UNDER ESPINAL (SECOND DEPT))/CONTRACT LAW (SLIP AND FALL, ESPINAL, SNOW REMOVAL CONTRACTOR AND PARKING LOT MANAGER NOT LIABLE FOR SLIP AND FALL UNDER ESPINAL (SECOND DEPT))/SLIP AND FALL (ESPINAL, SNOW REMOVAL CONTRACTOR AND PARKING LOT MANAGER NOT LIABLE FOR SLIP AND FALL UNDER ESPINAL (SECOND DEPT))

March 14, 2018

/ Civil Procedure, Negligence

SUPREME COURT PROPERLY REFUSED TO CONSIDER THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN OPPOSITION TO DEFENDANTS’ SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department noted that Supreme Court properly refused to consider a new theory raised for the first time in opposition to a summary judgment motion. Plaintiff alleged she slipped on a piece of trash on stairs. In opposition to defendants’ motion for summary judgment code violations and the absence of a handrail were alleged:

On their motion, the defendants established their prima facie entitlement to judgment as a matter of law by establishing that they did not create or have actual or constructive notice of the alleged dangerous condition … . In opposition, the plaintiff failed to raise a triable issue of fact in this regard.

A court should not consider the merits of a new theory of recovery, raised for the first time in opposition to a motion for summary judgment, that was not pleaded in the complaint … . As such, the Supreme Court did not err in declining to consider the plaintiff’s new theory of recovery, raised for the first time in opposition to the defendants’ motion, based on alleged building code violations related to the lack of a handrail on the subject staircase, since this theory was not pleaded in her amended complaint or set forth in her bill of particulars. Mazurek v Schoppmann, 2018 NY Slip Op 01601, Second Dept 3-14-18

NEGLIGENCE (SLIP AND FALL, SUPREME COURT PROPERLY REFUSED TO CONSIDER THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN OPPOSITION TO DEFENDANTS’ SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE (SECOND DEPT))/SLIP AND FALL (SUPREME COURT PROPERLY REFUSED TO CONSIDER THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN OPPOSITION TO DEFENDANTS’ SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE (SECOND DEPT))/CIVIL PROCEDURE (SUMMARY JUDGMENT, UPREME COURT PROPERLY REFUSED TO CONSIDER THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN OPPOSITION TO DEFENDANTS’ SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE (SECOND DEPT))/SUMMARY JUDGMENT (SUPREME COURT PROPERLY REFUSED TO CONSIDER THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN OPPOSITION TO DEFENDANTS’ SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE (SECOND DEPT))

March 14, 2018

/ Negligence

QUESTIONS OF FACT WHETHER BAR LIABLE FOR THIRD PARTY ASSAULT UNDER THE DRAM SHOP ACT AND NEGLIGENCE (SECOND DEPT).

The Second Department determined the bar owner’s (SNMT’s) motion for summary judgment on the Dram Shop Act and negligence causes of action were properly denied. Plaintiff was struck by a bar patron (Coscia). There were questions of fact whether the patron was served alcohol while visibly intoxicated and whether the assault was foreseeable:

… [T]he Supreme Court properly denied that branch of SNMT’s motion which was for summary judgment dismissing the General Obligations Law § 11-101 cause of action, and properly denied that branch of the plaintiff’s cross motion which was for summary judgment on the issue of liability on that cause of action. The submissions of both parties revealed the existence of triable issues of fact as to whether the bar served alcoholic beverages to Coscia while he was visibly intoxicated, whether the bar served alcoholic beverages to Coscia when it had knowledge or reasonable cause to believe that he was under 21 years of age, and whether there was some reasonable or practical connection between the service of alcohol to Coscia and the plaintiff’s injuries … .

In addition, the Supreme Court properly denied that branch of SNMT’s motion which was for summary judgment dismissing the negligence cause of action. “Although a property owner must act in a reasonable manner to prevent harm to those on its premises, an owner’s duty to control the conduct of persons on its premises arises only when it has the opportunity to control such conduct, and is reasonably aware of the need for such control. Thus, the owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults” … . Here, SNMT failed to establish, prima facie, that the attack on the plaintiff was not foreseeable … . Tansey v Coscia, 2018 NY Slip Op 01633, Second Dept 3-14-18

NEGLIGENCE (THIRD PARTY ASSAULT, QUESTIONS OF FACT WHETHER BAR LIABLE FOR THIRD PARTY ASSAULT UNDER THE DRAM SHOP ACT AND NEGLIGENCE (SECOND DEPT))/DRAM SHOP ACT (THIRD PARTY ASSAULT, QUESTIONS OF FACT WHETHER BAR LIABLE FOR THIRD PARTY ASSAULT UNDER THE DRAM SHOP ACT AND NEGLIGENCE (SECOND DEPT))/ASSAULT, THIRD PARTY (DRAM SHOP ACT, NEGLIGENCE, QUESTIONS OF FACT WHETHER BAR LIABLE FOR THIRD PARTY ASSAULT UNDER THE DRAM SHOP ACT AND NEGLIGENCE (SECOND DEPT))/BARS (THIRD PARTY ASSAULT, QUESTIONS OF FACT WHETHER BAR LIABLE FOR THIRD PARTY ASSAULT UNDER THE DRAM SHOP ACT AND NEGLIGENCE (SECOND DEPT))

March 14, 2018

/ Insurance Law

SETTLEMENT WITH INSURER DID NOT RESOLVE THE UNDERLYING WRONGFUL DENIAL OF COVERAGE ALLEGATION AGAINST THE INSURER, THE ACTIONS AGAINST THE INSURANCE BROKERS, ALLEGING FAILURE TO PROCURE THE REQUESTED INSURANCE, SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant insurance brokers’ (Praxis and HUB) motion to dismiss should not have been granted. Plaintiff settled with the insurer (Affiliated) on its breach of contract claim (which alleged the claim was wrongly denied). Plaintiff’s actions against the brokers alleged failure to procure the requested coverage:

… [T]he validity of Affiliated’s denial of the plaintiffs’ claim for property damage remains undecided, notwithstanding the fact that the plaintiffs settled this action with respect to Affiliated … . The complaint alleges that the denial was based on actions taken by Praxis and the HUB defendants. Should the plaintiffs prevail on their causes of action against Praxis and the HUB defendants, any damages they recover must necessarily be reduced by the amount of the settlement from Affiliated, in order to avoid a double recovery … . Prime Alliance Group, Ltd. v Affiliated FM Ins. Co., 2018 NY Slip Op 01630, Second Dept 3-14-18

INSURANCE LAW (SETTLEMENT WITH INSURER DID NOT RESOLVE THE UNDERLYING WRONGFUL DENIAL OF COVERAGE ALLEGATION AGAINST THE INSURER, THE ACTIONS AGAINST THE INSURANCE BROKERS ALLEGING FAILURE TO PROCURE THE REQUESTED INSURANCE SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/BROKERS (INSURANCE) (FAILURE TO PROCURE REQUESTED COVERAGE, SETTLEMENT WITH INSURER DID NOT RESOLVE THE UNDERLYING WRONGFUL DENIAL OF COVERAGE ALLEGATION AGAINST THE INSURER, THE ACTIONS AGAINST THE INSURANCE BROKERS ALLEGING FAILURE TO PROCURE THE REQUESTED INSURANCE SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))

March 14, 2018

Search Results

THE STIPULATED SUM CONTRACT FOR SCHOOL CONSTRUCTION DID NOT ALLOW THE SCHOOL DISTRICT ACCESS TO THE PROGRAM MANAGER’S ACTUAL CONSTRUCTION AND ADMINISTRATIVE COSTS (FOURTH DEPT).

ATTEMPT TO FILE AND SERVE AN AMENDED SUMMONS AND COMPLAINT WAS UNTIMELY AND THE RELATION BACK DOCTRINE DID NOT APPLY, TWO-JUSTICE DISSENT DISAGREED ON THE RELATION-BACK AND SEVERAL OTHER SUBSTANTIVE PROCEDURAL ISSUES (FOURTH DEPT).

CLAIMANT PROPERLY DENIED UNEMPLOYMENT BENEFITS DURING FIRST SEVEN WEEKS OF A STRIKE, ALTERNATIVE WORK SITE AVAILABLE (THIRD DEPT).

UNDER THE LAW AT THE TIME OF THE OFFENSE, DEFENDANT COULD NOT BE SENTENCED TO ADDITIONAL INCARCERATION FOR A VIOLATION OF HIS CONDITIONAL DISCHARGE IN THIS DRIVING WHILE INTOXICATED CASE (THIRD DEPT).

NO SPECIFIC PROOF OF WHEN AREA OF THE SLIP AND FALL WAS LAST INSPECTED, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

SNOW REMOVAL CONTRACTOR AND PARKING LOT MANAGER NOT LIABLE FOR SLIP AND FALL UNDER ESPINAL (SECOND DEPT).

SUPREME COURT PROPERLY REFUSED TO CONSIDER THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN OPPOSITION TO DEFENDANTS’ SUMMARY JUDGMENT MOTION IN THIS SLIP AND FALL CASE (SECOND DEPT).

QUESTIONS OF FACT WHETHER BAR LIABLE FOR THIRD PARTY ASSAULT UNDER THE DRAM SHOP ACT AND NEGLIGENCE (SECOND DEPT).

SETTLEMENT WITH INSURER DID NOT RESOLVE THE UNDERLYING WRONGFUL DENIAL OF COVERAGE ALLEGATION AGAINST THE INSURER, THE ACTIONS AGAINST THE INSURANCE BROKERS, ALLEGING FAILURE TO PROCURE THE REQUESTED INSURANCE, SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

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