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THE CONFLICTING EXPERT REPORTS AND OTHER EVIDENCE RAISED A QUESTION OF FACT WHETHER THE TRAFFIC ACCIDENT CAUSED SERIOUS INJURY DESPITE PLAINTIFF’S DECEDENT’S PREEXISTING CONDITIONS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Michael, determined Supreme Court properly denied summary judgment on the question whether plaintiff’s decedent, Kenneth Moore, suffered “serious injury” within the meaning of Insurance Law 5102(d) in a traffic accident. The conflicting expert evidence raised questions of fact about whether the accident exacerbated preexisting conditions, including arthritis

… [A] preexisting condition does not foreclose a finding that the plaintiff’s injuries were causally related to the subject accident … . Where a defendant meets its prima facie burden in establishing that the preexisting condition is the cause of the plaintiff’s injuries, the burden shifts to the plaintiff to present evidence addressing causation … .

To meet his burden, the plaintiff must address the evidence of preexisting conditions “and explain why [his] current reported symptoms [are] not related to the preexisting conditions” or how the accident aggravated his underlying degenerative conditions … . * * *

… [P]laintiff’s evidence, including conflicting expert reports; testimony as to Moore’s increased pain and diminished physical capabilities; and medical records showing a new course of treatment, new diagnoses, and aggravated injuries, raised issues of fact as to whether Moore’s worsened physical condition was causally related to the accident … . Moore v Maley, 2025 NY Slip Op 05304, First Dept 10-2-25

Practice Point: Consult this opinion for an an explanation of how to deal with a plaintiff’s preexisting conditions when assessing whether plaintiff has suffered “serious injury” in a traffic accident within the meaning of the Insurance Law.

 

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PLAINTIFFS REQUESTED GENERAL LIABILITY INSURANCE WHICH WAS PROCURED BY THE BROKER; THE BROKER WAS NOT UNDER A DUTY TO ADVISE, GUIDE OR DIRECT PLAINTIFFS TO OBTAIN ADDITIONAL COVERAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff did not demonstrate the defendant insurance broker breached its duty to procure additional insurance for the plaintiffs. Defendant proved plaintiffs requested general liability insurance which was procured:

“As a general principle, insurance brokers have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so” … . “Absent a specific request for coverage not already in a client’s policy or the existence of a special relationship with the client, an insurance agent or broker has no continuing duty to advise, guide, or direct a client to obtain additional coverage” … .

… [P]laintiffs did not make a specific request for a particular kind of insurance coverage that the defendant failed to procure … . The plaintiffs’ CEO and president testified … [the] plaintiffs needed general liability insurance. The defendant’s vice president of operations testified that the plaintiffs’ application was for general liability insurance, which the record reflects is the kind of insurance the defendant procured for the plaintiffs. In opposition, the plaintiffs failed to raise a triable issue of fact  Spa Castle, Inc. v Choice Agency Corp., 2025 NY Slip Op 04676, Second Dept 8-13-25

Practice Point: An insurance broker’s duty to a client does not extend beyond procuring the coverage requested by the client. There is no duty to advise the client to obtain additional coverage.

 

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A PLAINTIFF’S STIPULATED SETTLEMENT WITH THE INSURED ACCOMPANIED BY A COVENANT NOT TO EXECUTE THE JUDGMENT AND AN ASSIGNMENT OF THE INSURED’S CLAIMS AGAINST THE INSURER IS NOT A “RELEASE;” THE INSURER STILL HAS A DUTY TO INDEMNIFY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Kapnick, determined defendant insurer had a duty to indemnify plaintiffs under a policy issued to a bar sued by plaintiffs for using plaintiffs’ images without their consent. Plaintiffs had entered a settlement agreement with the bar which included a consent judgment in which plaintiffs agreed to forgo execution of the judgment in consideration for the bar’s assignment of its rights against the insurer. The insurer agued the settlement agreement constituted a release, extinguishing its obligation to indemnify. The First Department, in a matter of first impression, held the agreement was not a release and the insurer still had a duty to indemnify:

In New York, the legal ramifications of a general release in the context of an insured/insurer relationship are clear; a general release in favor of an insured abolishes any present or future duty of indemnification on the part of the insurer … . However, it appears that no New York precedent exists on the issue presented here: whether the insurer’s liability is maintained where, in settlement, a consent judgment is entered that incorporates an assignment of the insured’s rights against the insurer coupled with a covenant not to execute on the judgment. * * *

We conclude … that a stipulated judgment … accompanied by a covenant not to execute and an assignment of claims can be enforced against an insurer. Geiger v Hudson Excess Ins. Co., 2025 NY Slip Op 04609, First Dept 8-7-25

Practice Point: Here the plaintiffs settled with the insured in return for the assignment of the insured’s claims against the insurer. In a matter of first impression, the First Department held that the covenant not to execute the judgment against the insured (included in the settlement agreement) was not a “release” which extinguished the insurer’s duty to indemnify. The duty to indemnify remains.

 

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HERE THE “SOPHISTICATED PARTIES” TO THE COMMERCIAL LEASE PROPERLY USED INSURANCE TO ALLOCATE THE RISK OF LIABILITY TO THIRD PARTIES; THEREFORE THE TENANT CAN BE LIABLE TO THE PLAINTIFF FOR THE PROPERTY OWNER’S NEGLIGENCE IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the tenant (Beachbum Tanning) was obligated to indemnify the property owner (RJJR Corp) for the property owner’s negligence in this sidewalk (raised flag) slip and fall case. The “sophisticated parties” to the commercial lease had properly allocated the risk of liability to third parties through insurance:

“Pursuant to General Obligations Law § 5-321, a lease that obligates a tenant to indemnify a landlord for the landlord’s own negligence is against public policy and unenforceable. However, in the context of a commercial lease, negotiated between two sophisticated parties, where a ‘lessor and lessee freely enter into an indemnification agreement whereby they use insurance to allocate the risk of liability to third parties between themselves, General Obligations Law § 5-321 does not prohibit indemnity'” … . Under such circumstances the landlord “‘is not exempting itself from liability to the victim for its own negligence. Rather, the parties are allocating the risk of liability to third parties between themselves, essentially through the employment of insurance. Courts do not, as a general matter, look unfavorably on agreements which, by requiring parties to carry insurance, afford protection to the public'” … . Arnold v RJJR Corp., 2025 NY Slip Op 04534, Second Dept 8-6-25

Practice Point: Sophisticated parties to a commercial lease can use insurance to allocate liability to third parties. Thereforethe tenant can be liable for the property owner’s negligence in this sidewalk slip and fall case.

 

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THE EXCLUSIONARY PROVISIONS IN THIS FIRE INSURANCE POLICY WERE AMBIGUOUS AND MUST THEREFORE BE CONSTRUED AGAINST THE INSURER; PLAINTIFF IS ENTITLED TO COVERAGE FOR THE FIRE DAMAGE DESPITE THE UNAUTHORIZED OCCUPANTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the exclusionary provisions of the fire insurance policy were ambiguous and therefore must be construed in favor of the insured. At the time of the fire unauthorized occupants were living in the building and the insurer disclaimed coverage on that ground:

Here, the disputed exclusionary provisions read as follows:

“C. We do not cover loss resulting directly or indirectly:

Vacancy or Occupancy

1. While a described building, whether intended for occupancy . . . is vacant or unoccupied beyond a period of sixty (60) consecutive days.

Increase in Hazard

2. While the hazard is increased by any means within the control or knowledge of the insured.”

​Construed in the context of the contract as a whole, the plain and ordinary meaning of these exclusionary provisions is not apparent. The exclusionary provisions at issue are listed in the supplemental special provisions that modified the original dwelling insurance policy. The contract provides for certain general exclusions in parts A and B, and thereafter included the above referenced supplemental general exclusions as part C. Part A provides that, “[w]e do not insure for loss caused directly or indirectly by any of the following” … , and lists conditions or events that could damage the insured premises, including, for example, earth movement, water damage, and power failure. Part C, as referenced above, does not contain any language after “directly or indirectly.” Thus, it is not clear whether the “vacancy or occupancy” or “increase in hazard” must cause the loss or whether the condition must simply exist at the time of the loss. Because the exclusionary provisions are ambiguous, and any ambiguity is construed against the insurer in favor of the insured, the plaintiff has established her prima facie entitlement to coverage … . Eubanks v New York Prop. Ins. Underwriting Assn., 2025 NY Slip Op 04460, Second Dept 7-30-25

Practice Point: At the time of the fire the building was inhabited by “unauthorized occupants” and coverage was disclaimed. However, the exclusionary provisions of the policy were ambiguous. The ambiguity must be construed in favor of the insured. Therefore the disclaimer constituted a breach of contract.

 

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THE DOCUMENTS RELIED UPON BY RETIRED NEW YORK CITY EMPLOYEES TO PROVE THE CITY PROMISED TO PROVIDE THEM WITH MEDICARE SUPPLEMENTAL INSURANCE COVERAGE FOR LIFE DID NOT DEMONSTRATE A CLEAR AND UNAMBIGUOUS PROMISE; THEREFORE THE RETIREES WERE NOT ENTITLED TO JUDGMENT ON THEIR PROMISSORY ESTOPPEL CAUSE OF ACTION (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Troutman, determined the petitioners were not entitled to judgment on the promissory estoppel cause of action. Petitioners are retired New York City employees who argued the city had promised to provide them with Medicare supplemental insurance coverage for life. In 2021 the city made significant changes to its health benefits program, discontinuing its most popular program, Senior Care, and most other options, and enrolling retirees in a Medicare Advantage Plan (MAP) managed by Aetna Life Insurance Company:

To support the allegation of a clear and unambiguous promise of Medicare supplemental insurance coverage for life, petitioners submitted copies of Summary Program Descriptions (SPDs) that the City provides its employees and retirees on an annual basis to inform them of their health insurance options. * * *

The SPDs themselves contain nothing that could be construed as a clear and unambiguous promise of Medicare supplemental insurance coverage for life. To the contrary, we agree with the City that the language in the SPDs is descriptive and for informational purposes only. The language on which petitioners rely—”becomes eligible,” “is provided,” “provides,” and “supplements”—is in the present tense. The descriptive nature of the SPD is reflected in the title of the document—Summary Program Description—and its informational nature is also clear from the context of the SPD, the purpose of which is to explain benefits for the upcoming year. Indeed, annual SPDs are necessary only because benefits change from year to year, a fact petitioners do not contest. Petitioners rely heavily on the phrase “and thereafter” in the SPDs as conclusive evidence of a continuing promise, but read in context this language is used only to explain when someone is eligible for Medicare and not in reference to any promise of future benefits. To the extent that one might infer a commitment of sorts from the SPDs’ language, it does not rise to the level of a clear and unambiguous promise that the City would pay for Medigap coverage, as opposed to some other form of health insurance coverage, for the rest of every retiree’s life. Matter of Bentkowski v City of New York, 2025 NY Slip Op 03690, CtApp 6-18-25

Practice Point: Consult this opinion for insight into the proof requirements for a “clear and unambiguous promise,” in the context of promissory estoppel.

 

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SUPREME COURT HAS SUBJECT MATTER JURISDICTION OVER THIS PROCEEDING UNDER CPLR ARTICLE 52 TO ENFORCE A MONEY JUDGMENT AGAINST THE STATE INSURANCE FUND TO THE EXTENT THE STATE IS A GARNISHEE (SECOND DEPT)

The Second Department, in a full-fledged opinion by Justice Dillon, determined Supreme Court had subject matter jurisdiction over this CPLR article 52 action to enforce a money judgment against New York State Insurance Fund. Ordinarily an action for money damages against a state agency is litigated in the Court of Claims:

In this proceeding, the State Insurance Fund is postured not as a judgment debtor but as a garnishee. As such, under CPLR 5207, all procedures for the enforcement of money judgments against other judgment debtors are applicable to it, as a garnishee, “except where otherwise prescribed by law” and except that an order “shall only provide for the payment of moneys not claimed by the [S]tate” and that no judgment may be entered against the State in such a procedure.

The State Insurance Fund has not shown that this proceeding is otherwise prescribed by law. To the contrary, CPLR 5221(a)(4) provides that the Supreme Court or a County Court has authority to hear enforcement proceedings “authorized by this article,” meaning the entirety of CPLR article 52, which, of course, includes CPLR 5207 garnishment proceedings against the State. … The petition seeks entry of an order, not a judgment. Thus, contrary to the State Insurance Fund’s contention, we hold that the Supreme Court possessed subject matter jurisdiction over this proceeding pursuant to CPLR article 52 to enforce a money judgment as against the State Insurance Fund to the extent that the State’s role in this instance is that of a garnishee. Matter of Doran Constr. Corp. v New York State Ins. Fund, 2025 NY Slip Op 03716, Second Dept 6-18-25

Practice Point: Here, under very complicated facts, Supreme Court was deemed to have subject matter jurisdiction over an action to enforce a money judgment against a state agency where the state’s role is that of a garnishee.

 

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PLAINTIFF INSURER CAN SUE, AS A SUBROGEE, THE CLUB WHICH SERVED ALCOHOL TO ITS INSUREDS, WHO WERE VISIBLY INTOXICATED, PURSUANT TO THE DRAM SHOP ACT; THE INSUREDS WERE INJURED IN A SINGLE CAR ACCIDENT AND THE INSURER PAID OUT MORE THAN $500,000 (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Love, affirming Supreme Court, determined that plaintiff insurance company, Drive Insurance, could stand in the shoes of its insureds (as a subrogee) and sue the defendant club, Atlantis, pursuant to the Dram Shop  Act. Plaintiff alleged defendant served alcohol to the visibly intoxicated insureds who were then injured in a single-car accident. Plaintiff paid out over $500,000 to the insureds (named Aly, Perez and Abreu-Mateo):

… Drive Insurance alleged that Aly, Perez, and Abreu-Mateo were injured and the vehicle was damaged by Perez, who was visibly intoxicated at the time that Atlantis sold her alcohol. Accordingly, the Supreme Court properly determined that Drive Insurance was entitled to assert, as subrogee, a cause of action pursuant to the Dram Shop Act and that Drive Insurance stated a claim against Atlantis for violation of the Dram Shop Act. If the owner of the vehicle and the passengers have causes of action pursuant to the Dram Shop Act against Atlantis to recover damages arising out of the accident on the theory that Atlantis unlawfully served Perez when she was visibly intoxicated, causing the accident and their injuries, which causes of action do not fall into one of the exclusions discussed supra, then, since Drive Insurance alleges that it made payments as to the damaged vehicle and the injured passengers pursuant to the policy, Drive Insurance is entitled to stand in the shoes of its insured and seek indemnification from Atlantis based on Atlantis’s alleged violation of the Dram Shop Act. Drive N.J. Ins. Co. v RT Hospitality Group, LLC, 2025 NY Slip Op 02188, Second Dept 4-16-25

Practice Point: An insurance company which has paid the insureds’ medical bills and vehicle-repair costs after a single-car accident, can, as a subrogee, sue the bar which served alcohol to the visibly intoxicated insureds under the Dram Shop Act.

 

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THE COMPLAINT STATED CAUSES OF ACTION FOR DAMAGES STEMMING FROM THE ALLEGED FAILURE TO RETURN PLAINTIFF’S TESLA TO ITS PRE-ACCIDENT CONDITION AND THE ALLEGED FAILURE TO PROVIDE PLAINTIFF WITH COMPARABLE TRANSPORTATION WHILE THE TESLA WAS BEING REPAIRED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the complaint stated causes of action for damages relating to the alleged failure to restore plaintiff’s Tesla to its pre-accident condition and damages relating to the alleged failure to provide plaintiff with comparable transporting while the Tesla was repaired:

We agree with plaintiff … that the court erred in granting defendant’s motion for summary judgment dismissing the complaint. In support of his motion, defendant offered no proof establishing as a matter of law that the repairs to plaintiff’s vehicle restored the vehicle to its pre-accident condition. Defendant relied largely on an affirmation from his attorney, who has no personal knowledge of the facts, along with plaintiff’s deposition testimony. Although defendant contends that plaintiff admitted during his deposition that the repairs to his vehicle were done to his satisfaction, plaintiff made clear during his testimony that, due to the gaps in the paneling, the vehicle was not in the same condition as before the accident. Defendant offered no evidence to the contrary, and it is well established that a party moving for summary judgment “must affirmatively establish the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent’s proof” … .

… [W]ith respect to the loss of use cause of action, defendant merely asserted that plaintiff was not entitled to the use of a vehicle comparable to his Tesla while the Tesla was being repaired. According to defendant, any operable vehicle will suffice regardless of its make, model, size, or safety features. We agree with plaintiff … that he is entitled to damages to the extent that he was not provided with the use of a vehicle generally comparable to his Tesla Model 3 … . Hazlett v Niezgoda, 2025 NY Slip Op 01730, Fourth Dept 3-21-25

Practice Point: A plaintiff can seek damages for the failure to return a vehicle to its pre-accident condition and the failure to provide plaintiff with comparable transportation during the repair-period.

 

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PLAINTIFF INSURER DENIED FOUR CLAIMS FOR NO-FAULT INSURANCE BENEFITS ASSOCIATED WITH FOUR DISTINCT CHIROPRACTIC TREATMENTS PROVIDED BY DEFENDANT TO A WOMAN INJURED IN A TRAFFIC ACCIDENT; EACH OF THE FOUR CLAIMS WAS FOR AN AMOUNT BELOW $5000; AN ARBITRATOR AWARDED THE CLAIMED BENEFITS TO THE DEFENDANT; PLAINTIFF THEN SOUGHT DE NOVO REVIEW OF THE ARBITRAL AWARDS WHICH HAS A $5000 THRESHOLD; THE FOUR DISTINCT ARBITRAL AWARDS CANNOT BE COMBINED TO MEET THE $5000 THRESHOLD (SECOND DEPT). ​

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Duffy, determined the complaint in this no-fault insurance-benefit action should have been dismissed for lack of subject matter jurisdiction:

The issue on appeal, an issue of first impression for this Court, is whether, under certain circumstances, separate and distinct arbitral awards can be treated by a court as, in effect, a single arbitral award under Insurance Law § 5106(c) and pursuant to 11 NYCRR 65-4.10(h)(1)(ii) for the purposes of determining whether the requisite $5,000 threshold establishing subject matter jurisdiction has been met to allow for a de novo review of claims for no-fault insurance benefits…. [W]e hold that the plain language of Insurance Law § 5106(c) and 11 NYCRR 65-4.10(h)(1) does not contemplate allowing separate and distinct arbitral awards to be treated as, in effect, a single arbitral award or to be combined by a court for the purposes of meeting the required monetary jurisdictional threshold under Insurance Law § 5106(c) and 11 NYCRR 65-4.10(h)(1)(ii). …

… [P]laintiff American Transit Insurance Company commenced this action pursuant to Insurance Law § 5106(c) and 11 NYCRR 65-4.10(h)(1)(ii) to seek de novo review of four separate arbitral awards issued by a master arbitrator (hereinafter the arbitral awards). The four arbitral awards were issued by the same master arbitrator, following separate arbitration proceedings upon the plaintiff’s denial of payment for medical services performed by the defendant for Nancy Bayona, an individual who alleged that she was injured as a result of a motor vehicle accident in February 2019 when she was riding as a passenger in a taxi insured by the plaintiff. The arbitration proceedings arose upon the plaintiff’s denial of each of four claims submitted to it by the defendant for a repeated course of chiropractic treatment of Bayona performed by the defendant between March 8 and September 4, 2019. After each of the four arbitration proceedings, the master arbitrator issued an arbitral award in favor of the defendant, respectively, as follows: $4,767.63 for chiropractic services performed in March 2019; $4,767.63 for chiropractic services performed in March 2019 and April 2019; $4,767.63 for chiropractic services performed in April 2019 and May 2019; and $3,178.42 for chiropractic services performed in August 2019. … [P]laintiff commenced this action seeking de novo review of the four arbitral awards. American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 2025 NY Slip Op 01337, Second Dept 3-12-25

Practice Point: De novo review of an arbitral award of no-fault benefits has a threshold of $5000. Here there were four claims for no-fault benefits for four distinct chiropractic treatments provided to a woman injured in a traffic accident. Each of the four claims was for an amount below $5000. The Second Department held the $5000 threshold for de novo review could not be met by combining the four distinct arbitral awards.

 

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