New York CM Report of Recent Decisions (2009v3)
2009 Volume 3
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
The United States Court of Appeals for Second Circuit in Eastern Baby Stores, Inc., doing business as USA Baby v. Central Mutual Insurance Company, 2009 U.S. App. LEXIS 15190 (2009) addressed the issue of whether the insured's three-year delay in submitting a notice of claim to the insurer was a delay that is reasonable.
The New York Court of Appeals recently held in Bazakos v. Lewis, et al., 12 N.Y.3d 631, 911 N.E.2d 847 (2009), that an action for negligence against a physician who performed an Independent Medical Examination ("IME") in connection with a previously filed lawsuit is a claim for medical malpractice and, accordingly, is governed by New York's Civil Practice Law and Rules ("CPLR") § 214(a) which imposes a two year, six month statute of limitations.
The New York State Appellate Division, First Department, recently held that the statute of limitations in a legal malpractice action can be tolled where an attorney continuously represents the same client in the same matter, even though the attorney switched firms twice during the course of that representation. See Waggoner v. Caruso, 2009 NY Slip Op. 06739 (1st Dep't 2009).
New Jersey Court Declines To Extend Waiver Of Subrogation Provision To Insured's Deductible
In Carlson Restaurants Worldwide, Inc. v. Designline Construction Services, Inc. et. al., 2009 WL 2833259 (2009), Plaintiff appealed the trial court's decision which granted Defendants' motions for summary judgment due to a waiver of subrogation provision contained within a construction contract.
New York's Dram Shop Act: Motorist Who Injures Intoxicated Pedestrian Can Seek Contribution From Bar
In a matter of first impression, the Appellate Division, Second Department held that a motorist can seek contribution from a bar based on the claim that the pedestrian left the bar in an alcohol-induced stupor and then tried to cross a highway when she was struck by a car. A bar owes a duty to the public not to sell alcohol to a person who is visibly intoxicated. Here, the Court found that a motorist is a member of the public that the Act is designed to protect, and, therefore, if the bar breached its duty when it sold alcohol to the pedestrian, the motorist can seek contribution from the bar.
The Phrase "Arising Out Of” And Its Expanding Reach In The Additional Insured Context
In Regal Constr. Corp., et al. v. National Union Fire Ins. Co. of Pittsburgh, PA, et al., 64 A.D.3d 461 (1st Dep't 2009), the First Department provided additional clarification on the expansive reach of the phrase "arising out of" in the additional insured context. In this declaratory judgment action, the Appellate Division affirmed the trial court determination and held that, when analyzing an additional insured provision extending coverage based on liability "arising out of" a subcontractor's operations, the focus is on the "general nature" of the subcontractor's operation in which the claimant was injured.
