East Coast CM Report of Recent Decisions – 2016 Vol. 2

August 11, 2016 / CM Reports

ECCMRpt2016Vol2cover

Articles in this report

New Jersey Supreme Court Joins Majority Of Courts Holding That A GC’s CGL Policy Will Provide Coverage For A Subcontractor’s Defective Work

In Cypress Point Condominium Association, Inc. v. Adria Towers, L.L.C., et al. (A-13/14-15) (076348) (August 4, 2016), the New Jersey Supreme Court was faced with the question of “whether rain water damage caused by a subcontractor’s faulty workmanship constitutes ‘property damage’ and an ‘occurrence’ under a property developer’s commercial general liability (CGL) insurance policy.”

New York Court Holds That An Intentionally Set Fire Is Considered Vandalism As Defined By The Policy Language

The Appellate Division of the Supreme Court of New York, Second Department, recently affirmed a ruling on appeal that a Vandalism policy exclusion defined as “willful malicious conduct resulting in damage or destruction of property” was unambiguous and precluded coverage for a fire that was intentionally set. Capek v. Allstate Indem. Co., 138 A.D.3d 666 (2d Dep’t 2016).

Email From Your Doctor Constitutes Medical Treatment

In today’s modern age, we no longer have to call our doctor’s “service” and wait for a call back, as most of our doctors will provide us with an email address at which we can contact them with various questions. But, does email communication with our doctor constitute actual treatment? In a recent decision in Caesar v. Brookman, 2016 N.Y. Slip. Op. 26102 (Sup. Ct., N.Y. Co., March 30, 2016), Judge Schlesinger held that it does.

New York Court Reverses Lower Court’s Application Of The Sole Proximate Cause Defense To Labor Law §240(1) Claim

In Grant v. Solomon R. Guggenheim Museum (2016 NY Slip Op 04003 Decided on May 24, 2016), the First Department ruled on the application of the sole proximate cause defense to New York Labor Law §240(1). The lower court decision authored by Justice Cynthia Kern of Supreme Court, New York County granted motions to dismiss Plaintiff’s Complaint against Defendants Solomon R. Guggenheim Museum (“Guggenheim”) and F.J. Sciame Construction Co., Inc. (“Sciame”), and denied Plaintiff’s own motion for summary judgment seeking the same relief.

Pre-Judgment Interest Is At Court’s Discretion

In Utica Mut. Ins. Co. v. Clearwater Ins. Co., 2016 U.S. Dist. LEXIS 91413, *2-5 (N.D.N.Y July 14, 2016), the Court was faced with the difficult issue of determining the date to commence calculating pre-judgment interest.  In the underlying dispute, there were nearly forty breaches of contract, different lengths of billing periods and other issues all affecting the potential commencement date of pre-judgment interest.

New York Court Holds That General Cleaning Routines Without Specific Evidence Of Activities On Date Of Accident Are Insufficient To Disprove Constructive Notice Of Water Hazard

In Sada v. August Wilson Theater, 2016 N.Y. Slip. Op. 05024 (1st Dep’t June 23, 2016), the Appellate Division, First Department, affirmed that “evidence submitted by defendant was insufficient to establish prima facie that it lacked constructive notice of the alleged water hazard. Although defendant described its general cleaning routines at the theater, it failed to offer specific evidence as to its activities on the day of the accident […].” See Pineda v. 1741 Hone Realty Corp., 135 A.D.3d 567, 567 (1st Dep’t 2016).

U.S. District Court Applies Long-Standing Principle Of Subrogation Law To Bar Foreign Insurer From Recovering $24 Million

On June 20, 2016, the U.S. District Court for the Southern District of New York upheld an International Chamber of Commerce (“ICC”) tribunal’s decision to dismiss a Brazilian insurer’s recovery claim, and stonewalled the insurer’s subrogation action for $24 million in damages.

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