New York CM Report of Recent Decisions (2011v4)
2011 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. The PDF version is now interactive.
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Articles in this report
City May Be Liable For Black Ice On Sidewalk
Plaintiff slipped and fell on an icy sidewalk. Plaintiff sued the City of Albany, alleging that the City negligently piled snow along the sidewalk which melted, refroze and caused the black ice to form.... Plaintiff conceded that the Notice was not provided, but asserted that an exception to the Notice requirement applies-when the City "creates the defect or hazard through an affirmative act of negligence."
Disgorgement Payments For "Ill-Gotten Gains" Are Not Insurable Risks
The Appellate Court held that disgorgement to the Securities and Exchange Commission ("SEC") for the improper acquirement of funds is not an insurable risk under New York law.
Employer Not Liable For Assault Of Employee During Office Party
Plaintiff was assaulted by his employer's Chief Financial Officer at an office party. Plaintiff filed suit against various persons/entities, including his employer. Plaintiff alleged that his employer was liable under the theory of respondent superior.
New Jersey Appellate Court Affirms Trial Court's Decision Denying A Plaintiff/Mortgagor Summary Judgment In A Foreclosure Action
In Aurora Loan Services, LLC v. Toledo, et al., 2011 N.J. Super. Unpubl. LEXIS 2612 (N.J.A.D. 2011), the Superior Court of the State of New Jersey, Appellate Division, recently upheld a trial court's decision denying a plaintiff/mortgagor summary judgment in a mortgage foreclosure action.
New Jersey Federal Court Holds That Title Insurance Meets The New Jersey Consumer Fraud Act's Definition Of A Consumer Product
The United States District Court for the District of New Jersey recently held that title insurance is a "consumer product," as defined by the New Jersey Consumer Fraud Act ("N.J.C.F.A."); and, thus, allowed a class action suit filed by New Jersey homeowners who refinanced their home mortgages and alleged that Defendant First American Title Insurance Company systematically cheated them by misrepresenting the amount of money "due and owing for title insurance" to proceed.
New York Appellate Court Affirms Insured Has No Cause Of Action For Violations Of Insurance Law Pertaining To Claims Handling
The New York State Supreme Court, Appellate Division, Second Department recently upheld the bar on private causes of action for an insurance carrier's alleged violation of New York Insurance Law § 2601 and part 216 of the Insurance Regulations.
New York's Highest Court Continues To Expand Reach Of Labor Law § 240
The Court of Appeals -- in a significant expansion of the already vast reach of Labor Law § 240 -- held that a plaintiff who sustains an injury as a result of a falling object whose base stands at the same level as the plaintiff is not precluded from recovery under Labor Law § 240.
New York's Highest Court Holds That Timely Proof Of Claim Does Not Serve As Timely Notice Of Accident
New York's Highest Court, the Court of Appeals, reversed decisions of the Appellate Division and trial court, when it held that a health care service provider, as an assignee of a person injured in a motor vehicle accident, cannot recover no-fault benefits by timely submitting the required proof of claim after the 30-day period for providing written notice of the accident expired.
New York's Highest Court Holds That Workers' Compensation Bar Does Not Prevent Employee Claim For Uninsured Motorist Benefits
New York's Highest Court, the Court of Appeals, held that a self-insured employer whose employee was involved in a motor vehicle accident can be liable to the employee for uninsured motorist benefits, notwithstanding the prohibition on employee versus employer claims under the Workers' Compensation Law.
Real Estate Agent's Duty To Disclose Alleged Defective Conditions Of Property Under New Jersey's Consumer Fraud Act: Actual Notice Required
A seller's real estate agent can be held liable under New Jersey's Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 ("CFA"), for alleged misrepresentations made in the Seller's Disclosure Statement ("SDS"). Plaintiff argued that the SDS contained inconsistent statements, that seller's agent had a duty to investigate those inconsistencies, and that the inconsistencies constituted affirmative material misrepresentations by seller's agent when it exchanged the SDS with the buyers.
Whether Weight Lifter Assumed The Risks Is Genuine Issue Of Material Fact Precluding Motion For Summary Judgment
Plaintiff sustained injuries while exercising at Defendant's gym. Plaintiff was using 140-pound dumbbells. Plaintiff filed suit against the gym. The gym moved for summary judgment, asserting that Plaintiff assumed the risks of his injuries.
