New York CM Report of Recent Decisions (2008v2)
2008 Volume 2
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
Appellate Court Rules In Favor Of Tenant's Insurer
The liability insurer for a commercial property owner, Cohoes Realty Associates, L.P. (“Cohoes Realty”), brought an action against Cohoes Realty, the commercial tenant and tenant’s insurer, seeking, inter alia, a declaration that Cohoes Realty was an additional insured under the tenant’s CGL and business owners’ property insurance policy.
Evidence of Injury Alone Is Insufficient To Establish A Departure From Good And Accepted Medical Practice
In Johnson v. St. Barnabas Hospital, 2008 WL 2344701 (1st Dep’t 2008), Plaintiffs brought an action sounding in medical malpractice against St. Barnabas Hospital and other medical professionals, after the infant plaintiff suffered an injury during delivery. The Supreme Court, Bronx County entered judgment on or about March 12, 2007, dismissing the Complaint as against Defendants in the midst of a jury trial. Plaintiffs appealed. On June 10, 2008, the Supreme Court, Appellate Division, First Department unanimously affirmed, without costs.
New York’s Highest Court recently held that an Insurer was not required to add an unlimited employer’s liability endorsement to a policy that was delivered in New Jersey, to a New Jersey insured, for risks located in New York.
NY Court of Appeals Places Limit On The Broadly Construed "Arising Out Of" Language Contained In Additional Insured Endorsement
New York’s highest court recently issued a decision limiting the broadly construed “arising out of” language contained in a commercial general liability policy’s additional insured endorsement. Additional insured endorsements typically state that coverage is extended to entities that qualify as or are listed as additional insureds “but only with respect to liability arising out of your [the named insured’s] operations.”
New York Legislature Passes Bill Mandating That Insurers Demonstrate Prejudice To Rely On Late Notice Defense, Effectively Abrogating Common Law "No Prejudice" Late Notice Rule
On June 23, 2008, a bill was passed by both houses of New York’s Legislature containing proposed changes to New York’s civil law and practice rules and insurance law relating to disclaimers based on an insured’s alleged failure to provide timely notice.
Out-Of-Possession Property Owners Cannot Contract Around Liability Under Labor Law ยง240(1) Through Notice Provisions In A Lease
In Christopher Sanatass, et. al. v. Consolidated Investing Company, Inc. et. al., 10 N.Y.3d 333 (N.Y. 2008), a divided New York Court of Appeals held that an out-of-possession property owner was liable for a violation of Labor Law §240(1) that proximately caused an injury to a worker, even though the tenant violated its lease by contracting for the work without notifying the owner.
Second Circuit Holds Shipper Not Strictly Liable For Explosive Cargo
The United States Court of Appeals for the Second Circuit recently clarified the standard used to determine Carrier and Shipper liability when transporting hazardous cargo under the Carriage of Goods by Sea Act (“COGSA”).
