You are here: / Second Department

Tag Archive for: Second Department

, ,

Duty to Defend Broader than Duty to Indemnify.

The Second Department applied the rule that an insurer’s duty to defend under a policy is broader than its duty to indemnify.  Because the language of the policy was broad enough to cover the cause of action for unfair competition, the insurer was obligated to defend, in spite of the fact that the related breach of contract cause of action was excluded from coverage under the terms of the policy.  Natural Organics, Inc v OneBeacon America Insurance Co., 2011-03268, 2011-05298, Index No. 12763/10 Second Dept. 1-16-13

 

,

Damages Related to Improvements Made on Condemned Property Allowed.

In a condemnation case where a portion of a sand and gravel quarry was taken, the Second Department affirmed the lower court’s valuation of the condemned property.  The quarry owner argued that an income-based analysis, rather than a sales-comparison (land-value) approach, should be employed.  The Second Department determined that the income-based analysis (projected profits minus projected expenses) was not appropriate. The Second Department also affirmed the lower court’s determination that the quarry should be compensated for damages related to the improvements made on the condemned property, as opposed to damages related to the taking itself. Matter of Metropolitan Transportation Authority and Washed Aggregate Resources, Inc., 2011-03-14, Index No. 2674/98 Second Dept. 1-16-13

 

Right to Call and Question Witnesses.

In an inmate’s disciplinary hearing, the hearing officer’s refusal to allow an inmate to call witnesses, without providing the inmate with a written statement explaining the reasons for the refusal, together with the hearing officer’s refusal to allow the inmate to question witnesses, required a new hearing before a new hearing officer.  In the Matter of Benito v Calero, 2011-06219, Index No. 10-00715 Second Dept. 1-16-13

 

 

,

Late Notice of Claim Allowed.

The Second Department allowed plaintiff to serve a late notice of claim against the defendant School District because: (1) the School District was made aware of the facts constituting the claim within the 90-day statutory period (shown by a medical claim completed by the school principal); (2) there was a reasonable excuse for the delay (mother was unaware of the severity of the child’s injury and had relied on the School District’s prior willingness to pay for the child’s medical treatment); (3) there was no prejudice to the School District’s ability to defend the action.  In the Matter of Funkhouser v Middle Country Central School District, et al, 2011-08142, Index No. 2333/11 Second Dept. 1-9-13.

 

, ,

Assault in Medical Facility, Spoliation of Evidence.

Plaintiff, a patient at defendant medical center, was assaulted by another patient.  Shortly after the incident plaintiff’s attorney sent a letter to the medical center asking that it preserve all records of the incident, including videotape.  The letter was apparently never forwarded to the defendant’s risk management department and any videotape of the incident was overwritten in the ordinary course of business.  The trial court, pursuant to CPLR 3126, sanctioned the defendant by striking the defendant’s answer “to the extent of precluding the defendant from introducing evidence at trial that the alleged perpetrator was being supervised by its employees at the time of the incident.”  The Second Department discussed the sanctions available for spoliation of evidence and held that, because the plaintiff was not prevented from establishing her case by the spoliation, the imposed sanction was too harsh.  The appropriate sanction was an adverse inference charge to the jury.  Jennings v Orange Regional Medical Center, 2012-00209, Index No. 5601/10 Second Dept. 1-9-13

 

, , ,

Medical Malpractice Against Hospital, No Need to Name Individual Doctors.

In a medical malpractice action, where the plaintiff has a respondeat superior claim against a hospital based on the actions of nonparty physicians, the failure to name the individual doctors upon whom the claim is based within the applicable statute of limitations period does not compel dismissal of the vicarious liability claim against the hospital.  Parilla v Buccellato, et al, 2011-09045, Index No. 500001/08 Second Dept. 1-9-13

 

,

Primary Assumption of Risk Jury Charge Required Reversal.

The Second Department reversed the trial court’s dismissal of a personal injury complaint after a “no cause” verdict.  The plaintiff’s daughter was a 14-year-old pitcher on a school softball team.  During practice, she was instructed to pitch from a position closer to the plate than the pitching mound.  A so-called “L-screen,” a protective pitching screen, was used.  But the screen was not properly supported and kept falling down. At some point, the pitcher was instructed by the coach to keep pitching even though the screen was down.  The pitcher was then struck and injured by a “line drive” hit by the batter.  The trial court submitted the “primary assumption of risk” charge to the jury which states that a participant in a sport consents to the usual risks associated with the sport.  The Second Department ruled that whether to apply the primary assumption of risk theory is an issue of law for the court, not the jury, and therefore the jury should not have been instructed on it. There is a substantive discussion of the doctrine of primary assumption of risk and the reasons the doctrine did not apply to the facts of the case.  The Second Department went on to say that the evidence raised a question of fact about whether the pitcher impliedly assumed the risk of pitching in the absence of the screen.  Therefore, at the new trial, the jury should be instructed on the implied assumption of risk, as well as comparative negligence.  Weinberger v Solomon Schechter School of Westchester, 2010-05992, 2010-10382, Index No. 10087/08 Second Dept. 1-9-13

 

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