East Coast CM Report of Recent Decisions – 2015 Volume 2

Articles in this report

Appellate Court Grants Defendant Landowner Summary Judgment On The Basis That The Allegedly Defective Condition Was Open And Obvious, And Inherent Or Incident To The Nature Of The Property
In Mossberg v. Crow’s Nest Mar. of Oceanside, 2015 NY Slip Op 04618 (2d Dep’t June 3, 2015), the Appellate Division, Second Department reversed an order from the trial court denying the landowner Defendant’s motion for summary judgment.

New York’s Appellate Division Defines Duty Of Personal Injury Plaintiff To Provide Notice Of Claim Directly To Defendant’s Liability Carrier
New York’s Appellate Division, Third Department, held that liability policies requiring “prompt notice” of a potential claim as a condition precedent to third-party liability coverage require the plaintiff to take steps to request relevant insurance coverage information from a defendant and to follow-up an initial request that receives no response or an incomplete response, in order to demonstrate “reasonably diligent efforts” to identify and provide notice to the third-party liability carrier, such that the carrier’s failure to actually receive timely notice does not vitiate coverage.

Second Department Determines That, For The Purposes Of A Premium Audit Provision, ISO Codes Listed On A Policy’s Declarations Page Do Not Determine Premiums To Be Charged
In Iner-Reco, Inc. v. Transcorp Constr. Corp., 2015 NY Slip Op 05444 (2d Dep’t 2015), Plaintiff insurer, Iner-Reco, Inc., provided polices of general liability insurance to the Transcorp Construction Company for policy periods 2002-2003 and 2003-2004.

Second Department Refuses To Apply Contractual Indemnity Clause To Scope Of Work Transferred Between Subcontractors
In Lombardo v. Tag Court Square, LLC, (126 A.D.3d 949, March 25, 2015), the Second Department considered consolidated appeals from the decision and order of Justice Arthur Schack of Supreme Court, Kings County, denying motions for summary judgment filed on behalf of two sub-contractors in this tort action sounding in theories of common law negligence and violation of New York’s Labor Law.

Second Department Slowly Eroding The Availability Of The Sole Proximate Cause Defense To Labor Law §240 Claims
In Doto v. Astoria Energy II, LLC, 2015 N.Y. App. Div. LEXIS 4536, 2015 Slip Op 04605, a construction worker injured in a fall on a construction site brought a cause of action against the site’s owner and general contractor alleging violation of New York Labor Law §240, 241(6) and 200, and common law negligence.

Southern District Of New York Finds The Term “Occurrence” Ambiguous With Respect To Deductible Provision Despite Definition In Policy
In Rokeach v. Hanover Ins. Co., 2015 WL 2400097 (S.D.N.Y. May 19, 2015), the Court ruled on a declaratory judgment action to determine the application of a deductible provision in a business owner’s insurance policy. The Court ruled that as it appeared in the deductible provision, the term “occurrence” was ambiguous, and it would be up to a jury to apply the provision to determine coverage.

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