East Coast CM Report of Recent Decisions – 2015 Vol. 4

Articles in this report

Checking Lighting Fixtures At A Construction Project Is Routine Maintenance And Not A Protected Activity Under The New York Labor Law
In Guevera v. Simon Prop. Group, Inc., 2015 NY Slip Op 09254 (2d Dep’t December 16, 2015), the Appellate Division, Second Department affirmed an order of the trial court denying the Plaintiff’s motion for summary judgment under Labor Law §240(1), commonly referred to as the “Scaffold Law.”

Heavy-Lifting Crane Held “Integral” And Not “Incidental” To Construction Work, And Thus Not Covered As “Temporary Work” In Builder’s Risk Policy
The Appellate Division, First Department recently held that insurers are not required to insure the collapse of a large crane post-Superstorm Sandy. The Court interpreted the meaning of “temporary work” in a builders risk policy, and it held that the custom-designed crane used to build a high-rise luxury tower was “integral,” not “incidental” to the building, and as such did not meet the definition of “temporary works.”

New York Appellate Division Affirms That A Defendant Moving For Summary Judgment In A Premises Liability Case Can Meet Its Initial Burden
In Giannotti v. Hudson Val. Fed. Credit Union, 2015 N.Y. Slip. Op. 08383 (2d Dep’t Nov. 18, 2015), the Appellate Division, Second Department, recently affirmed that “a plaintiff’s inability to identify what had caused […] her to fall is fatal to [her case and…] a defendant moving for summary judgment dismissing the complaint can meet its initial burden as the movant simply by demonstrating that the plaintiff did not know what had caused […] her to fall.”

Second Circuit Corrects The New York Southern District’s Use Of “Factual Nexus” Test
The Second Circuit Court of Appeals recently affirmed a ruling on appeal from the Southern District of New York that a Related Claims policy exclusion precluded coverage when the underlying lawsuits were related to a previous litigation and should be treated as a single claim filed on the date of the earliest action, which was filed outside the coverage period in 2008. Nomura Holding Am., Inc. v. Fed. Ins. Co., No. 14-3789, 2015 U.S. App. LEXIS 18486, *4 (2d Cir. Oct. 21, 2015).

Third Circuit Employs “Fresh Wrong” Analysis And Holds “Prior Publication” Exclusion Applies When Current Advertisements Are “Substantially Similar”
In Hanover v. Urban Outfitters, Inc., 2015 U.S. App. LEXIS 18459 (3d Cir., Oct. 23, 2015), the United States Court of Appeals for the Third Circuit, in an issue of first impression, employed the “fresh wrongs” analysis and held that where an alleged trademark infringement began prior to the date in which an insurance policy took effect, the insurer had no duty to defend pursuant to the “prior publication” exclusion when the alleged advertising torts occurring within the policy period were found to be “substantially similar” to those which occurred prior.

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