New York CM Report of Recent Decisions (2005v4)
2005 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
The Appellate Court of Connecticut recently held that a landlord’s property insurer has a right of subrogation against a duplex tenant for a fire caused by the tenant’s houseguest. Hartford Fire Insurance Company v. Warner, et al., 91 Conn.App. 685, 881 A.2d 1065 (2005). This appeal required the Court to decide whether a tenant in a duplex residence may be liable in a subrogation action brought by the owner’s property insurer to recover payments made for damages caused by the negligence of the tenant’s houseguest -- where the tenant’s lease agreement made her responsible for property damages arising from her negligence, and where the owner’s insurance policy contained a subrogation provision.
Court Interprets Statute to Mean that a Party Must File a Notice of Claim Before the Dispute Arises
In New York, when a party chooses to sue a governmental entity (i.e., a town or city), the party seeking to commence the lawsuit typically must file a “Notice of Claim.” A Notice of Claim is a procedural device which is intended to give the targeted governmental entity notice of the impending lawsuit. See New York General Municipal Law §50-E. Although it would seem that it is only appropriate to file a Notice of Claim when the need for a lawsuit is clear and apparent, a recent Court of Appeals decision has proven that assumption false. The New York Court of Appeals, the highest court in the State, recently ruled that a party may be required to file a Notice of Claim before a lawsuit is necessary or even contemplated.
Accrued claims not disclosed in bankruptcy filings are subject to dismissal in post bankruptcy litigation, provided the debtor/plaintiff obtained a discharge of his debts or the functional equivalent of a discharge. Two recent decisions, less than a week apart, illustrate the point. B.N. Realty Assoc. v. Lichtenstein, 21 A.D.3d 793, 801 N.Y.S.2d 271 (1st Dep’t 2005); Vega-Ruiz v. Keller, 9 Misc.3d 1123(A), 2005 WL 2850910 (N.Y.Sup., Bronx County 2005).
Mother May Not Recover Emotional Damages for Medical Malpractice During Pregnancy, Where Infant is Born Alive But Dies Shortly Thereafter
The Warnock court’s dicta suggests the court’s support for arguments being advanced by the plaintiffs’ bar as of late -- that in circumstances where it cannot be proven that an infant experienced some level of awareness during its short life, there can be no claim for conscious pain and suffering, and, therefore, Sheppard-Mobley should be extended to permit a cause of action on behalf of the mother for her own emotional distress where a fetus is injured in utero, is born alive, but dies shortly after birth. The defense bar should anticipate challenges to the rule enunciated by Broadnax/Sheppard-Mobley from the plaintiffs’ bar with the aim of establishing more expansive interpretations to carve out exceptions to the narrow rule.
New Jersey Supreme Court Significantly Weakens the Verbal Threshold Defense and the Appellate Division Puts Into Question Plaintiff's Burden of Proof
The Supreme Court of New Jersey recently held that following an automobile accident, Plaintiffs subject to the “Limitation on Lawsuit” or “Verbal” Threshold, no longer need to show that they have suffered a serious impact in their lives in order to recover non-economic damages. DiProspero v. Penn, 183 N.J. 477 (2005). In DiProspero, Plaintiff was involved in an automobile accident. As a result of the accident, Plaintiff was diagnosed with TMJ dysfunction and a strain/sprain injury that was accompanied by ligamentous instability, myofascitis and localized evidence of nerve root irritation. Plaintiff also underwent Magnetic Resonance Imaging (MRI) scans that showed that Plaintiff’s discs were bulging.
New York Court Holds that Contamination Exclusion Operates to Preclude Coverage for Damage Caused by Airborne Particulate Released as a Result of the Collapse of the World Trade Center
The United States District Court for the Southern District of New York recently held that the contamination exclusion contained in a property policy operated to preclude coverage for physical damage to a building that was caused by the introduction of airborne particulate released as a result of the collapse of the World Trade Center on September 11, 2001. See Parks Real Estate Purchasing Group, et al. v. St. Paul Fire and Marine Insurance Company, 2005 U.S. Dist. LEXIS 21872 (S.D.N.Y. September 28, 2005).
Second Department Reversal - Same Sex Domestic Partner May not Pursue Wrongful Death Claim as a Spouse
In the CM Report, Volume 2 (2003), we reported on the Supreme Court of Nassau County’s decision in Langan v. St. Vincent’s Hospital of New York, 196 Misc. 2d 440, 765 N.Y.S.2d 411 (2003). In Langan, the trial court held as a matter of first impression that a same-sex domestic partner may pursue a wrongful death claim as a spouse under New York’s wrongful death statute (EPTL §5-4.1). That decision has now been reviewed by the Appellate Division – Second Department, which reversed over a two-justice dissent. 802 N.Y.S.2d 476 (2d Dep't 2005).
