New York CM Report of Recent Decisions (2006v4)
2006 Volume 4
A summary of significant recent developments in the law focusing on substantive issues of litigation and featuring analysis and commentary on special points of interest.
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Articles in this report
Court of Appeals Enforces Indemnification Provision Requiring Tenant To Indemnify Landlord For Landlord's Own Negligence
General Obligations Law (“G.O.L”) §5-321 renders any lease provision, which seeks to exempt the landlord from liability for damages caused by its own negligence, void as against public policy and wholly unenforceable. However, in Great Northern Insurance Company v. Interior Construction Corp. 7 N.Y.3d 412 (2006), New York’s highest court, the Court of Appeals held that when coupled with an insurance procurement provision, an indemnification agreement in a lease which required the tenant to indemnify the landlord for the landlord’s negligence did not violate G.O.L §5-321. Id. at 415.
Damages For Pre-Impact Fright Are Recoverable Under New Jersey Law
In a recent case of first impression, the United States District Court, District of New Jersey, held that the New Jersey Survivor’s Act permits plaintiffs to recover damages for pre-impact fright. See In re Jacoby Airplane Crash Litig., Civ. No. 99-6073, 2006 U.S. Dist. LEXIS 87816 (D.N.J. 2006).
Failure To Give Notice Required Under Policies, Relieves Insurer Of Duty To Defend Infringement Suite
The United States District Court, Southern District of New York, applying New York law, recently held in Technaoro, Inc. v. United States Fidelity & Guaranty Company, 2006 WL 3230299 (S.D.N.Y. 2006), that defendant insurer USF&G was not obligated to defend its insured, Technaoro, Inc., in the underlying infringement lawsuit brought by Cartier, because of Technaoro’s failure to satisfy certain conditions precedent to coverage. Specifically, Technaoro failed to comply with the USF&G policy’s notice requirements, which required Technaoro to give notice to USF&G of a claim or suit “as soon as practicable.”
Plaintiff Fails To Compel Disclosure Of Surgeon's Personal Medical Records: Court Orders Surgeon To Appear For Deposition To Answer Question Relating to His Jedical Treatment
A New York trial court in New York County recently determined that a surgeon who underwent treatment for an injury to his upper extremities was not required to disclose his personal medical records in an action where plaintiff alleged that the surgeon negligently performed a surgical facelift on the plaintiff. Brower v. Beraka, 12 Misc.3d 1108, 821 N.Y.S.2d 369 (N.Y. Sup. 2006). The Court concluded that the plaintiff did not meet her burden of demonstrating that the physician had “affirmatively placed his or her physical or medical condition in controversy.”
Second Circuit Holds Carmack Applies To Domestic Leg Of International Transport Over COGSA Extension In "Through" Bill Of Lading
The United States Court of Appeals for the Second Circuit, in a case of first impression, recently held that the Carmack Amendment applied to the domestic leg of an international shipment originating in a foreign country, despite the “through” bill of lading provision extending the Carriage of Goods by Sea Act (“COGSA”)’s reach. Sompo Japan Insurance Company of America v. Union Pacific Railroad Company, 456 F.3d 54 (2d Cir. 2006). Accordingly, the rail carrier’s liability was not limited to the $500.00 per package COGSA limitation.
