Insurance Coverage: Court Denies Summary Judgment to Insured Seeking Coverage Under Exception to Residential Developments Exclusion

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Bogen, Inc. v. Mt. Hawley Ins. Co. (N.Y. Sup. Ct. New York Co.)

Timothy E. Delahunt, Esq. and Adam R. Durst, Esq.


In Bogen, the plaintiff insured sought a declaration that it was entitled to a defense and indemnification under its general liability policy in connection with an underlying property damage action.  The insured was a general contractor retained to renovate and convert a multi-unit townhouse into a single-family residence.  When owners of a neighboring property allegedly sustained property damage as a result of excavation and underpinning activities at the insured’s project site, their homeowners insurer commenced the underlying subrogation action against the insured.  The general contractor’s insurer disclaimed coverage in connection with the underlying action based on the policy’s “Exclusion – Residential Developments” endorsement, which excludes coverage for “property damage” arising from the insured’s “work” on “residential developments,” defined as “single and multi-family dwellings.”


The insured general contractor moved and the insurer cross-moved for summary judgment.  The insured arguing that the project fell within an exception to the exclusion under which a claim could be covered if the insured’s work was “done for the individual dwelling owners, if the individual dwelling and its improvements were completed and certified for occupancy prior to the commencement” of the insured’s work.  Specifically, the insured argued that the exception to the exclusion was satisfied because the premises was certified as a multi-family dwelling over 50 years ago.  The Supreme Court, New York County (Hon. Jennifer G. Schecter, J.S.C.) disagreed, denying the insured’s motion and granting the insurer’s cross-motion.  The court found the insured’s argument untenable because “it fails to take into account the reality of the project,” i.e., a conversion of a multi-family dwelling into an “individual dwelling.”  In interpreting the exception to the exclusion, the court focused on the building actually being constructed (i.e., the single family home), not the building that previously existed (i.e., the multi-family dwelling), finding the exclusion clearly and unambiguously applies without exception.

Labor Law 240: Court Dismisses Contractor’s Third-Party Claims Against Plaintiff’s Employer/Subcontractor Retained by Another Contractor For Different Project at Same Location

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Huber v. 85 Broad Street, LLC., et al. (N.Y. Sup. Ct. New York Co.)

Deborah A. Summers, Esq. and Lori B. Lewis, Esq.


In Huber, the plaintiff was allegedly injured in a fall from a defective ladder in the course of his employment with an emergency electrical subcontractor retained to provide storm surge recovery services at 85 Broad Street in Manhattan following Hurricane Sandy.  Plaintiff commenced an action seeking damages for injuries he allegedly sustained as a result of the fall.  A defendant general contractor commenced a third-party action against the subcontractor/employer asserting claims for contractual indemnification and common law indemnification and contribution.


The subcontractor/employer moved for summary judgment, arguing first that it did not owe contractual indemnification because it had three other projects underway at the same building at the time of the plaintiff’s fall and (according to the project log book and deposition testimony of the project foreman) the plaintiff was working on a completely different project than the one alleged – i.e., was working on a separate project for which the subcontractor/employer was hired by another contractor, not by the third-party plaintiff general contractor.  Therefore, the subcontractor/employer argued, any claims by the third-party plaintiff general contractor should be dismissed because the accident did not arise out of work performed by or on behalf of that contractor.  In addition, the subcontractor/employer argued that the common law indemnification and contribution claims should be dismissed because the plaintiff did not allege a “grave injury” under the Workers Compensation Law.  The Supreme Court, New York County (Hon. Erika M. Edwards, J.S.C.) agreed, dismissing all claims against the electrical subcontractor/employer.

Court of Appeals Addresses Discovery of Facebook Accounts

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by David M. Goodman, Esq.


On February 13, 2018, the New York Court of Appeals issued a decision in Forman v. Henkin addressing the scope of discovery of Facebook accounts.


The plaintiff commenced this action seeking monetary damages for bodily injuries allegedly sustained when she fell from a horse while riding.  At deposition, she testified about a Facebook account with “a lot” of photographs depicting her pre-accident life and activities, and that she deactivated that Facebook account six months after the accident.  After depositions, the defendant requested an authorization, unlimited in scope, to obtain the plaintiff’s entire “private” Facebook materials.  Plaintiff failed to respond to that request.  Defendant moved to compel, and the trial court granted that motion in part.  Specifically, plaintiff was ordered to produce all photos of herself privately posted to her Facebook account before the accident that she intended to introduce at trial, all photographs of herself privately posted to her Facebook account after the accident that do not depict nudity or romantic encounters, and an authorization for Facebook records showing a timeline of each time plaintiff posted a private message after the accident and the number of characters or words in those messages.  The trial court did not order disclosure of the content of any of plaintiff’s pre- or post-accident written Facebook postings.


From the “be careful what you wish for” department, only the plaintiff appealed the trial court’s decision.  (The Court of Appeals noted that the scope of its review was limited by defendant’s failure to appeal the Supreme Court’s order.)  In a 3-2 decision (134 A.D.3d 529 (1st Dept. 2015)), the Appellate Division modified the trial court’s order by limiting disclosure to posted photographs (pre- or post-accident) that plaintiff intended to introduce at trial, and eliminated the requirement for plaintiff to provide an authorization for the private message post accident entries.  As it was a 3-2 decision, leave to appeal to the Court of Appeals was granted as of right.


The Court of Appeals did not hold that the filing of a personal injury litigation necessarily causes the plaintiff’s entire Facebook account to be discoverable.  The Court also did not make discoverability dependent upon what the account user chooses to share on a public or private portion of Facebook.  Rather, as is so often the case, the Court set forth elements and factors to be considered and balanced when determining the scope of disclosure.  The first factor is “the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to asses whether relevant material is likely to be found on the Facebook account.”  Second, the Court held that since there must be a balancing of “the potential utility of the information sought against any specific ‘privacy’ or other concerns raised by the account holder, the Court should issue an Order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of non-relevant materials.”  The majority of cases involving such disclosures involve personal injury claims.  In such cases, the Court advised “it is appropriate to consider the nature of the underlying accident and the injuries claimed and to craft a rule for discovery information specific to each.”  The Court also acknowledged that limitations may be necessary involving potentially sensitive or embarrassing material that may be marginally relevant to the underlying case.


An analogy that I have considered is the foundational principle that in bringing a personal injury action, a plaintiff does not open up their entire medical history for examination.  Rather, there shall be full disclosure regarding the body part or parts alleged to have been injured in an accident.  It is apparent that such a limitation on the scope of discovery is analogous to what the Court is attempting to accomplish in Forman.


Finally, it should be noted that this decision only addresses a Facebook account, and only discusses disclosure of photographs, not posted text.  It is reasonable to assume, however, that the decision would apply to other social media information, and that on a case-by-case basis both postings and photographs would potentially be discoverable.

Court of Appeals Addresses Comparative Negligence

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By David M. Goodman, Esq.


On April 3, 2018, the Court of Appeals issued a lengthy 4-3 opinion in Rodriguez v. City of New York addressing whether plaintiffs must establish the absence of their own comparative negligence to obtain partial summary judgment in a comparative negligence case.  The Court held plaintiffs do not bear that burden.


The facts of the case were not in dispute.  Plaintiff worked for the New York City Department of Sanitation (DOS) as a garage utility worker.  He and his co-workers were tasked with outfitting the sanitation trucks with tire chains and plows for the winter.  While a truck was being directed into position for this work, the truck skidded and crashed into a parked car, propelling the car into the plaintiff and pinning him between the car and a stack of tires.  Plaintiff was allegedly injured as a result.  The means and methods as to how the truck was being positioned deviated from established DOS safety procedures.


Plaintiff commenced a negligence action against the City seeking monetary damages.  At the close of discovery, plaintiff moved for partial summary judgment on the issue of the City’s liability, and the City cross-moved for summary judgment.  By a decision issued October 16, 2014, the Supreme Court, New York County denied both motions.  In denying plaintiff’s motion, the Court found triable issues of fact regarding foreseeability, causation, and plaintiff’s comparative negligence.  Plaintiff appealed.  On September 1, 2016, the Appellate Division, First Department affirmed the trial Court’s denial of plaintiff’s motion for partial summary judgment on the issue of negligence, relying upon the Court of Appeals’ oft-cited memorandum decision in Thoma v. Ronai, 82 N.Y.2d 736 (1993) in holding that plaintiff failed to make a prima facie showing that he was free from comparative negligence.  The Appellate Division granted plaintiff leave to appeal to the Court of Appeals, certifying the question whether the Supreme Court’s order, as affirmed by the Appellate Division, was properly made.  The Court of Appeals reversed.


The Court of Appeals recognized the interplay between summary judgment motions governed by CPLR 3212 and the culpable conduct and comparative negligence principles of CPLR Article 14-A.  The Court found that these are two separate and distinct principles.  In discussing the application of CPLR 3212, the Court noted that “comparative negligence is not a defense to the cause of action of negligence, because it is not a defense to any element (duty, breach, causation) of plaintiff’s prima facie cause of action for negligence, and as CPLR 1411 plainly states, is not a bar to plaintiff’s recovery, but rather a diminishment of damages.”  CPLR 1411 is New York’s comparative negligence statute, establishing that a claimant’s or decedent’s culpable conduct “shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages” (emphasis added).  The Court noted that CPLR 1412 explicitly states that a claim of culpable conduct under CPLR 1411 is an affirmative defense to be pleaded and proved by the party asserting that defense.  The Court held that to place the burden on a plaintiff to establish an absence of comparative fault in order to obtain summary judgment is “inconsistent with the plain language of CPLR 1412.”  The Court reasoned that to hold otherwise could under certain circumstances result in the comparative negligence standard becoming, in practice, a contributory negligence standard, which result would be contrary to CPLR 1411.


As to its prior Thoma decision, the Court examined the briefs filed in that case and determined that the Court in Thoma “never addressed the precise question we now confront,” at least in part because it “never considered the import of article 14-A.”  The Court pointed out that the purpose of summary judgment is to narrow the issues for trial, and a decision to allow a determination of a defendant’s liability as a matter of law, independent of plaintiff’s comparative fault, serves that purpose.  In this case, the Court pointed out the issues for trial would be narrowed to plaintiff’s negligence (comparative fault) and whether such negligence was a substantial factor in causing plaintiff’s injuries.


It is possible that the Court of Appeals’ decision in Rodriguez may be used by defendants as a sword, rather than by plaintiffs as a shield.  Following Rodriguez, a defendant’s argument may become, “the plaintiff was negligent, and here is the proof of that negligence.”  To the extent Rodriguez essentially shifts the burden to plaintiffs to explain their actions, this may be a persuasive position for a defendant to take at trial.

Not-for-Profit Corporations: Fourth Department Affirms Summary Judgment Award in Favor of Homeowners Association, its Board of Directors, and Sponsor

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Schaefer v. Chautauqua Escapes Ass’n, Inc. (N.Y. App. Div. 4th Dept.)

Maurice L. Sykes, Esq. and Aalok J. Karambelkar, Esq.


In Schaefer, the plaintiffs, as lot owners in the Chautauqua Escapes residential subdivision, brought an action against the Homeowners Association and its Board of Directors seeking damages for breach of contract and breach of fiduciary duty, and seeking additional injunctive relief with respect to the Board’s dealings with Camp Chautauqua (the Sponsor that originally developed the subdivision and incorporated the Association). Plaintiffs sought damages for various unpaid assessments for the 1999–2015 period, for increasing payments to the Sponsor (6 cents per lot) for water costs based on competitive rates and estimates as opposed to actual expenses, and for an alleged failure by the Sponsor to keep an amenity (lodge building) in good repair as required by the Declaration and the Use of Facilities Agreement. Plaintiffs, purporting to be acting on behalf of the Homeowners’ Association, also brought a derivative action against the Sponsor for breach of contract, alleging damages for much of the same.


The Fourth Department affirmed the decision of the Supreme Court, County of Chautauqua, finding that Section 11.03 of the Declaration of Protective Covenants, Conditions, Restrictions, Easements, Charges and Liens (which provides that “[n]o liability shall attach to the Sponsor[,] the Association (or any officer, director, employee, Member, agent, committee or committee member) or to any other person or organization for failure to enforce the provisions of the Declaration”) precludes any recovery against the Association and its Board of Directors.


The Fourth Department also found that the plaintiffs lacked standing to bring a derivative action against the Sponsor, albeit for reasons different from those relied on by the trial Court below. The Court found that plaintiffs lacked standing to bring such an action on behalf of the Homeowners’ Association because Section 623(a) of the Not-For-Profit Corporation Law (which requires that a derivative action be brought by at least 5% of the Association members) was not satisfied.  The Court further found that plaintiffs’ claim for past-due assessments (based on the Board’s waiver in 1999 of assessments on two lots owned by the Sponsor) was time-barred by the six-year statute of limitations. The Court’s decision implies the Board’s minutes (contained in the record evidence) demonstrated that the decision to waive those assessments amounted to a permanent waiver, as opposed to a temporary one that was renewed annually.

Premises Liability: Court Holds Defendant Store Lessee Had No Duty to Remove Snow and Ice from Sidewalk Adjacent to Store

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Carmona v. Sunrise Check Cashing SVCS #6, et al. (N.Y. Sup. Ct. Nassau Co.)

Deborah A. Summers, Esq. and Lori B. Lewis, Esq.


In Carmona, the plaintiff allegedly fell on snow and ice on a sidewalk adjacent to a check-cashing store in Glen Cove, New York.  According to the plaintiff, the sidewalk was covered with two feet of snow and contained embedded footprints covered with ice.  Plaintiff sued the owner and lessee of the store to recover damages for injuries allegedly sustained as a result of the fall.


The lessee moved for summary judgment, arguing a lessee of property abutting a public sidewalk is under no duty to remove ice and snow that naturally accumulates upon the sidewalk unless a statute or ordinance specifically imposes tort liability for failure to do so.  The motion pointed out that while the plaintiff alleged that the defendants violated the Glen Cove City Code, neither the cited provision nor any other provision of the Code actually imposes tort liability on occupants for injuries caused by a failure to remove snow and ice, and that therefore liability must remain with the municipality unless the owner or lessee created a dangerous condition or made special use of the sidewalk (which, the lessee argued, it did not).


The Supreme Court, Nassau County (Hon. Anna R. Anzalone, J.S.C.) agreed that in the absence of a statute imposing tort liability for failure to maintain or keep the sidewalk free from snow or ice, the lessee was under no duty to remove snow or ice from the sidewalk or to apply salt or sand.  On the eve of trial, the court dismissed the plaintiff’s complaint and all of the co-defendants’ cross-claims against the lessee.

Change in Statute of Limitations for Certain Medical Malpractice Actions

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by David M. Goodman, Esq.


On January 31, 2018, New York State Governor Andrew Cuomo signed “Lavern’s Law,” establishing a tolling provision for certain medical, dental, and podiatric malpractice cases.  The changes and amendments can be found at CPLR section 203(g)(2).  The statute provides a tolling, or extension, for calculating the time when the statute of limitations begins to run in cases of failure to diagnose cancer.  Prior to this change, there was no distinction between cancer and other medical malpractice actions.  While the 2 ½-year statute of limitations for medical malpractice actions under CPLR section 214-a has not changed, the new law affects when that time will begin to run.  CPLR section 203(g)(2) now provides that in medical, dental, or podiatric malpractice cases based on an act or omission alleging negligent failure to diagnose cancer or a malignant tumor, the 2 ½-year statute of limitations will not begin to run (i.e., is tolled) until the later of either:  (i) when the person knows or reasonably should have known of the alleged negligent act or omission or that such alleged negligent act or omission has caused injury, or (ii) the date of the last treatment where there is continuous treatment for such injury, illness, or condition.



Section (i) thus provides a “date of discovery” exception in cancer cases.  The 2 ½-year statute of limitations begins to run when a person discovers (or reasonably should have discovered) an alleged failure to diagnose cancer or a malignant tumor and that such alleged failure has caused injury.  For example, if a woman goes in for a mammogram that is read to be normal but then discovers three years later that the mammogram was misread and there was a malignancy, the statute-of-limitations clock does not begin to tick until the point of discovery.  Before the passage of this statute her action would have been time barred based upon the 2 ½-year statute of limitations, but after the passage of this statute, the patient would have 2 ½ years beginning from the point of discovery to commence an action.  The statute does provide a limitation or “cap” on how long the action can be tolled – i.e., the action shall be commenced “no later than 7 years from such alleged negligent act or omission.”  In the eyes of the legislature, the 7-year cap places finality on the commencement of malpractice cases under this tolling provision.



Section (ii) is merely a codification of the continuous treatment doctrine and provides that the 2 ½-year statute of limitations will begin to run on the date of the last treatment.  This continuous treatment provision does not include the 7-year cap.

Motor Vehicle Accident: Court Unanimously Affirms Summary Judgment in Favor of Defendants for Lack of “Serious Injury” Under Insurance Law Section 5102(d)

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Koneski v. Seppala (N.Y. App. Div. 4th Dept.)

Maurice L. Sykes Esq. and Henry A. Zomerfeld, Esq.


In Koneski, plaintiff was involved in a rear-end car accident in the Batavia, New York and allegedly sustained, among other injuries, a labral tear to his right hip.  Plaintiff brought suit claiming several categories of “serious injury” under Insurance Law section 5102(d), including permanent loss of use of a body, function, or system; permanent consequential limitation of use; significant limitation of use; and a medically determined injury or impairment which prevented plaintiff from performing substantially all of the material acts which constitute his usual and customary daily activities for not less than 90 days during the 180 days following the occurrence of the injury or impairment.


Defendants moved for summary judgment on the grounds that plaintiff did not sustain a “serious injury” within any of the claimed categories under Insurance Law section 5102(d).  The parties submitted expert affidavits.  The defendants’ expert opined that the onset of pain in plaintiff’s right hip approximately five days after the accident was consistent with a prior degenerative condition that became symptomatic spontaneously and was not consistent with an acute, traumatic labral tear in the right hip sustained in the accident.  Plaintiff’s treating orthopedic surgeon opined it was more likely than not that a spontaneous symptomatic hip injury did not occur and that the labral tear in the right hip observed in post-accident MRI resulted from the accident.  On December 21, 2016, the Supreme Court, Genesee County (Grisanti, A.J.), granted defendants’ motion for summary judgment on the grounds of permanent loss of use, permanent consequential loss of use, and significant limitation, and denied defendants’ motion as to the 90/180-day impairment category, such that the 90/180-day impairment category was the only remaining viable claim of “serious injury.”  Plaintiff appealed.


Plaintiff’s appeal was limited to the decision concerning the categories of permanent consequential limitation of use and significant limitation of use.  (The claim under the permanent loss of use category was abandoned.)  Notwithstanding the conflicting medical opinions submitted by the parties, the issue on appeal was whether plaintiff’s medical records supported the allegations raised or whether the objective medical evidence demonstrated that plaintiff’s alleged injuries were nothing more than minor, mild, or slight, rendering them insignificant or inconsequential within the meaning of Insurance Law section 5102(d).  This was particularly notable in that plaintiff, just over a month after the accident, exhibited normal abduction, adduction, and external rotation, and only a slightly diminished flexion and internal rotation within ten degrees of normal range of movement.  In addition, plaintiff’s orthopedic surgeon evaluated plaintiff eight months after the accident and showed that plaintiff exhibited full flexion without pain, as well as external and internal rotation within normal range of movement.


On February 2, 2018, the Appellate Division, Fourth Department, unanimously affirmed the Supreme Court decision granting summary judgment in favor of defendants.  While the Court found a question of fact as to causation given defendants’ expert’s opinion that the alleged injury was degenerative in nature, the Court held that plaintiff’s range-of-motion measurements were insignificant as a matter of law and that plaintiff ultimately did not have a “serious injury” under the statute in the two “serious injury” categories at issue on appeal.

Negligence: Court Grants Summary Judgment in Favor of Sidewalk Installation Subcontractor Where Installation Work Was Performed and Approved Six Years Before Pedestrian’s Fall

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Abuhamda v. Brooklyn Sneaker Box, Inc., et al. (N.Y. Sup. Ct. Kings Co.)

Deborah A. Summers, Esq. and Lori B. Lewis, Esq.


In Abuhamda, the plaintiff was allegedly injured in a fall due to what she described as shaky and uneven ground on a sidewalk in front of 8519 5th Avenue in Brooklyn.  The fall occurred nearly six years after a municipal reconstruction project including sidewalk reconstruction in the area.  Plaintiff commenced two actions (later consolidated) seeking damages for injuries she allegedly sustained as a result of the fall, including against certain municipal entities and contractors allegedly involved with the municipal reconstruction project.  A third-party action was commenced against a subcontractor that allegedly installed the concrete sidewalks for the reconstruction project.  The third-party complaint asserted claims against the subcontractor for contractual indemnification, common law indemnification and contribution, and breach of contract for failure to procure insurance.


The sidewalk installation subcontractor moved for summary judgment, arguing there was no evidence to prove it had installed the granite blocks that had allegedly caused plaintiff to fall, much less that it had negligently done so.  The subcontractor pointed out that an engineering consultant hired by the City had inspected and prepared an itemized punch list detailing items to be addressed before any of its work could be deemed accepted and completed, that the consultant that monitored and tested the solid compaction throughout the installation process, and that the work was eventually accepted and the project was deemed complete.  The subcontractor argued that even if it had performed the work to install the granite blocks at issue, there was insufficient proof of negligence because the engineering consultant had approved the completion of that part of the project and indicated that the granite blocks were laid flush and level with the adjacent concrete at the time of installation.  The subcontractor also pointed out that 1% of the contractor’s payment was initially withheld pending a “guarantee inspection” to be performed 18 months after the substantial completion date, and that when the guarantee inspection was performed the granite blocks were still flush and level with the adjacent concrete.  The Supreme Court, Kings County (Hon. Reginald A. Boddie, J.S.C.) granted the sidewalk installation subcontractor’s motion for summary judgment and dismissed the third-party action against it.

Premises Liability: Court Grants Summary Judgment in Favor of Supermarket, Finding No Evidence of a Defective or Dangerous Condition

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Ayala v. Tops Markets, LLC, et al. (N.Y. Sup. Ct. Monroe Co.)

Melissa A Foti, Esq.


In Ayala, the plaintiff allegedly tripped and fell on a seasonal carpet in a supermarket aisle and hit her face on an ice cream freezer, causing injuries.  Plaintiff then filed suit, alleging the supermarket negligently created a defective and dangerous condition and failed to properly and safely maintain the area so as to prevent tripping hazards.


The supermarket moved for summary judgment.  The supermarket argued that plaintiff could not identify what caused her fall, pointing out that plaintiff made inconsistent statements as to whether the carpet was torn, ripped, or raised, and that plaintiff’s testimony indicated other possible causes, including possibly her own lack of balance as she used a walking cane, orthopedic shoes, and was blind in one eye.  The supermarket also argued that plaintiff produced no evidence that the seasonal carpet was defective, and that even if a defect existed it was trivial (as plaintiff alleged the carpet was raised less than two inches) and therefore not actionable under New York law.  The supermarket also argued that if a defect existed, as a matter of law the supermarket did not have notice of the condition for long enough to remedy it (as would be required to impart liability) because the evidence showed the store manager regularly checked the premises for safety hazards and had done so 30 minutes before plaintiff’s fall.  The Supreme Court, Monroe County (Hon. Debra A. Martin, Acting J.S.C.) agreed, granting the supermarket’s motion for summary judgment and dismissing plaintiff’s complaint.