New York CM Report of Recent Decisions
2006 Volume 2
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
Arbitration Clauses Contained in Unsigned Agreements are Enforceable
The New York Court of Appeals, New York’s highest court, has recently reiterated its long standing rule that an arbitration clause in a written agreement is enforceable, even if the agreement is not signed, when it is evident that the parties intended to be bound by the contract. God’s Battalion of Prayer Pentecostal Church, Inc. v. Miele Associates, LLP, 6 N.Y.3d 371, 845 N.E.2d 1265, 812 N.Y.S.2d 435 (2006).
The Court of Appeals recently held in Hinlicky v. Dreyfuss, 6 N.Y.3d 636, --- N.E.2d ----, 2006 WL 1148122 (N.Y., May 02, 2006), that published clinical guidelines relied upon by a physician in his practice, which would otherwise be barred as hearsay, are admissible to illustrate the doctor’s decision-making process and not for its truth to establish the standard of care.
A federal district court in Mississippi recently held that there is no coverage for flood damage caused by Hurricane Katrina where a flood exclusion in a homeowners’ insurance policy is clear and unambiguous. Buente v. Allstate Property & Casualty Insurance Co., 2006 WL 980784 (S.D.Miss. 2006). In reaching this decision, the Court denied the policyholders’ motion for partial summary judgment, which was based on the argument that the flood exclusion was ambiguous.
Forum Selection Clauses Contained in Employment Agreements are Valid and Will Be Enforced
In Boss v. American Express Financial Advisors, Inc., 6 N.Y.3d 242, 844 N.E.2d 1142, 811 N.Y.S.2d 620 (2006), three first-year financial advisors brought suit against their employer, American Express Financial Advisors, Inc. (“AEFA”), on behalf of themselves and the putative class action members who were similarly situated. At issue was whether the forum selection clause contained in Plaintiffs’ employment agreement, requiring that any action be brought in a Minnesota court, should be enforced. The New York State Court of Appeals, which is New York’s highest court, agreed with the lower courts that the Complaint should be dismissed. 6 N.Y.3d 242, 844 N.E.2d 1142, 811 N.Y.S.2d 620.
ABM Industries Inc. (“ABM”) was the facility services contractor that provided janitorial, lighting and engineering services for the common areas of the World Trade Center (“WTC”), and approximately 97% of its tenants. In Zurich Am. Ins. Co. v. ABM Industries, Inc., 2006 U.S. Dist. LEXIS 28249; 2006 WL 1293360 (S.D.N.Y. May 11, 2006), the United States District Court for the Southern District of New York held that ABM’s appropriate period of recovery under its Business Interruption coverage was the hypothetical period of time required to rebuild the WTC.
The "Date of Loss" in a Contractual Suit Limitation Provision, In a Homeowner's Policy, Runs From the Date of the Peril Insured Against
The New York Supreme Court, Appellate Division, Fourth Department, held that “date of loss” from which a homeowners’ property insurance policy’s two-year contractual suit limitation provision period ran was the date of the catastrophe insured against, not the accrual date of the insureds’ cause of action against the property insurer. Klawiter v. CGU/OneBeacon Ins. Group, 27 A.D.3d 1155 (4th Dep’t, Mar 17, 2006).
