New York CM Report of Recent Decisions (2011v1)
2011 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
Contributory Negligence Unavailable In A Labor Law § 240 Claim Regardless Of Plaintiff’s Actions
The New York Appellate Division, First Department, affirmed a trial court's denial of summary judgment motions of building owners and general contractors, in an unusual case further closing the door to an equitable examination of plaintiff's actions and any defense reliance on contributory negligence.
Defense Is Owed Under Primary CGL Policy, Not Under Claims Made D&O Policy
The Court of Appeals held that a single covered claim triggered a primary duty to defend under a Commercial General Liability ("CGL") policy against all causes of action in two separate lawsuits, with no contribution owed under a claims made Directors and Officers ("D&O") policy issued to the same insured and in effect during the CGL policy period.
Exclusionary Language Must Be Specific, Clear And Will Be Resolved In The Insured’s Favor If The Language Is Susceptible To Alternative Interpretations
The New York Appellate Division, Third Department, held in Essex Insurance Company v. Grande Stone Quarry LLC, 2011 NY Slip Op 1555 (March 3, 2011), that the law governing the interpretation of exclusionary clauses in insurance policies is highly favorable to an insured.
Insured’s Failure To Update Address With Secretary Of State No Excuse For Late Notice
In SP & S Associates, LLC v. Insurance Co. of Greater New York, 80 A.D.3d 529, 915 N.Y.S.2d 543 (1st Dep't 2011), the Court upheld a late notice disclaimer. The Court stated that receipt of service of a Summons with Notice by the Secretary of State constituted receipt by the insured limited liability company. The insured company was sued in a personal injury action.
Mold Endorsement Does Not Narrow Coverage By Exclusion, But Rather, It Defines The Scope Of Coverage
The Appellate Division of the Superior Court of New Jersey held that there was no coverage for an insured's mold-related losses caused by ice-damming based upon the clear and unambiguous language of the mold endorsement contained within the homeowner's policy.
“Ongoing Operations” Exclusionary Language In A CGL Policy Entitles Insurance Company To Deny Coverage
Ohio Casualty Insurance Company ("Ohio Casualty") filed suit against defendant insured, Island Pool and Spa, Inc. ("Island Pool"), seeking a judgment that it was not obligated to indemnify Island Pool under a CGL policy, due to exclusionary language in the policy. The trial court found in favor of Island Pool, holding that it was entitled to indemnification. On appeal, the Appellate Court reversed the trial court and determined that the exclusion applied to bar coverage.
