New York CM Report of Recent Decisions
2003 Volume 1
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 Decides - Surveillance Tapes Must Be Disclosed Before Depositions
As we have been reporting throughout the past year, the First Department in Tran v. New Rochelle Hospital Medical Center, 740 N.Y.S.2d 11, issued a defense-friendly ruling on the issue of disclosure of surveillance tapes of a plaintiff. In Tran, the First Department ruled that where a defendant obtained post-deposition surveillance footage of plaintiff, plaintiff would have to submit to a second deposition before defendant would be required to turn over the surveillance video. The First Department reasoned that such a result “serves an important truth-finding function in view of the newly-discovered facts, and meets the concern of possibly tailored testimony when conducted prior to disclosure....This outcome does not present the risk of sandbagging or trial by ambush, inasmuch as plaintiff [is] already fortified with the knowledge of the existence of video surveillance materials, and will have the tapes for examination prior to trial.”
First Department Holds That Proof of Direct Physical Loss or Damage to Insured Property is a Prerequisite to Recovery for Business Interruption Loss
The Appellate Division - First Department has held that an insured must prove direct physical loss to insured property as a prerequisite to recovery for business interruption loss. Roundabout Theatre Co. v. 1830 Continental Casualty Co., 2002 WL 31662563, *4, 2002 N.Y. Slip Op. 08839 (N.Y. App. Div., 1st Dep’t).
New York's Disclaimer-of-Coverage Statute and Bodily Injury Claims from Mold Exposure: is Mold Exposure an "Accident?"
The consequences to an insurer for failing to comply with §3420(d) are dire. “Where...the policy would provide coverage but for a policy exclusion, the insurer must disclaim coverage [pursuant to §3420(d)], and the failure to do so in a reasonably timely manner estops the insurer from disclaiming coverage based on the exclusion.” Hamilton v. City of New York, 681 N.Y.S.2d 563, 564 (N.Y. App. Div. 1998). We accordingly advise New York insurers presented with bodily injury claims caused by mold exposure to follow the strictures of §3420(d) until the New York courts determine that such compliance is unnecessary because mold exposure is not “accidental.” We will continue to monitor this important area of mold law and provide our readers with updates as they occur.
Salvaging Parts from Building About to be Demolished Constitutes "Alteration" Under Labor Law ยง240(1)
Labor Law §240(1) requires that:
All contractors and owners and their agents * * *in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders,* * *and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
