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QUESTIONS OF FACT ABOUT WHETHER THE INSURER WAS TIMELY NOTIFIED OF THE ASBESTOS-EXPOSURE CLAIM AND WHEN THE INJURY-IN-FACT OCCURRED PRECLUDED SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined there are questions of fact whether the defendant insurer was timely notified of the claim in this asbestos-exposure case, and there are questions of fact, raised by conflicting expert evidence, about when the injury-in-fact occurred: Defendant contends that the Meissners’ [plaintiffs’] delay of 68 days—from when they […]

A STACK OF DRYWALL LEANING AGAINST A WALL AND PARTIALLY BLOCKING A DOORWAY FELL OVER ON PLAINTIFF’S ANKLE AS PLAINTIFF ATTEMPTED TO MOVE IT; THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT). ​

The Fourth Department, reversing (modifying( Supreme Court, determined the Labor Law 240(1) and 241(6) causes of action should not have been dismissed. A stack of drywall leaning against a wall and partially blocking a doorway fell over onto plaintiff’s ankle when plaintiff and another attempted to move it: Although the drywall that fell on plaintiff […]

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THE FACT THAT PLAINTIFF WAS SPECIFICALLY TARGETED FOR A HOME INVASION DID NOT PRECLUDE A FINDING THAT INADEQUATE BUILDING SECURITY WAS A PROXIMATE CAUSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant property owners should not have been awarded summary judgment in this home invasion case. The fact that plaintiff was specifically targeted did not preclude a finding that building security was inadequate: Plaintiff was the victim of a home invasion of his apartment in a building owned and […]

THE STATUTORY CRITERIA FOR A MOTION TO CHANGE VENUE IN CPLR 510(3) WERE NOT MET; THE MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendants’ motion to change the venue in this insurance-coverage dispute should not have been granted because the statutory criteria in CPLR 510(3) were not met. The statute requires detailed information about the witnesses who will testify and how those witnesses would be inconvenienced if venue is not […]

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PLAINTIFF, A NEW YORK RESIDENT AND A SHAREHOLDER IN DEFENDANT LONDON CORPORATION, ALLEGED DEFENDANT WRONGFULLY FAILED TO PAY DIVIDENDS; THE LONDON DEFENDANT’S MOTION TO DISMISS ON FORUM NON CONVENIENS GROUNDS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to dismiss on “forum non conveniens” grounds should have been granted. Plaintiff is a New York resident and the defendant is a London corporation (Anderson). Plaintiff, a shareholder of Anderson, alleged Anderson failed to pay dividends to shareholders: The doctrine of forum non conveniens permits a […]

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THE AMENDED LIMITED LIABILITY COMPANY AGREEMENT SUPERSEDED THE PRIOR ORAL SIDE AGREEMENT BECAUSE IT INCLUDED AN UNAMBIGUOUS INTEGRATION AND MERGER CLAUSE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over a two-justice dissenting opinion, determined the amended Limited Liability Company (LLC) agreement with an integration and merger clause superseded the prior oral side agreement, called an exit opportunity agreement: … [T]he amended LLC agreement contains a clear and unambiguous integration and merger clause providing that […]

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PLAINTIFF, AN EXPERIENCED GOLFER WHO WAS PARTICIPATING IN A TOURNAMENT, ASSUMED THE RISK OF BEING STRUCK IN THE EYE BY A GOLF BALL WHILE RIDING IN A GOLF CART (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff golfer assumed the risk of being struck by a golf ball during a golf tournament. Supreme Court and the dissenters concluded there was a question of fact whether the design of the defendant golf course unreasonably increased the risk: Plaintiff was riding in […]

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THE SIGHTSEEING BUS COMPANY’S COUNTERCLAIMS ALLEGING CONCERTED ANTI-COMPETITIVE BEHAVIOR BY OTHER BUS COMPANIES IN VIOLATION OF THE DONNELLY ACT (GENERAL BUSINESS LAW 340) SHOULD NOT HAVE BEEN DISMSSED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the counterclaims by a tour bus company, Go New York, alleging anti-competitive behavior in violation of the Donnelly Act by other bus companies, called the Gray Line respondents, should not have been dismissed: The Donnelly Act prohibits “[e]very contract, agreement, arrangement or combination” through which “a […]

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WHERE A LAWSUIT AGAINST A UNION SEEKS INJUNCTIVE RELIEF, AS OPPOSED TO MONETARY DAMAGES, THE COMPLAINT NEED NOT ALLEGE EVERY MEMBER OF THE UNION RATIFIED THE CHALLENGED CONDUCT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the precedent (Martin v Curran (303 NY 276) prohibiting a lawsuit against a union (an unincorporated association) unless it was demonstrated every member of the union ratified the challenged action only applies when the lawsuit seeks monetary damages, not, as here, injunctive relief: … [E]xtending [Martin […]

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DECEDENT’S WORK-RELATED COVID DEATH ENTITLED DECEDENT’S DAUGHTER, DECEDENT’S “STATUTORY BENEFICIARY,” TO “ACCIDENTAL DEATH BENEFITS” UNDER A RECENT STATUTE; PETITIONER, DECEDENT’S PARTNER, WHO WAS DECEDENT’S “DESIGNATED BENEFICIARY” FOR “ORDINARY DEATH BENEFITS,” WAS NOT ENTITLED TO THE “ACCIDENTAL DEATH BENEFITS” (CT APP).

The Court of Appeals, affirming the Appellate Division, determined the respondent Teachers’ Retirement System properly awarded “accidental death benefits” to decedent’s daughter under a recent law which classified certain work-related COVID death as “accidental.” The dispute here was between the “statutory beneficiary,” decedent’s daughter who received the “accidental death benefits,” and the “designated beneficiary,” decedent’s […]

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