If wood falls in a building and no one witnesses it, can there be Labor Law liability? Construction injury claims against owner and lessee dismissed on lack of evidence

Ortiz-Leon v. Weatex, LLC, 300 Penn LLC, & Oster Framers, Inc., Index No. 508088/2018 (Sup. Ct. Kings Cty. October 3, 2022)
In a case that was almost metaphysical in its implausibility, the Court granted defendants' motion for summary judgment dismissing all claims against them.

Plaintiff sued the owner and partial [Read News]

Public Utility Law gives right to indemnification; Court grants summary judgment on indemnity and dismisses Labor Law claims

Bucci v. City of New York, et al., Index 34069/2019E (Sup.Ct. Bronx City. Sept. 26, 2022)
An Order granting summary judgment to the City of New York may reshape the landscape for landowners and the public utilities who enter their property to do work.

In a Decision and Order dated [Read News]

Bid to amend subrogation Complaint to avoid waiver of subrogation bar rejected: new claim meritless because time-barred

Lexington Insurance Company as subrogee of New Gold Equities Corp. et ano. v. Pasapalos, Inc. d/b/a Marcha Cocina Bar, 156050/2019 (Sup. Ct. N.Y 2022)
A motion to amend the plaintiff's subrogation action Complaint was denied where the proposed amendment fashioned to circumvent the effects of a waiver of subrogation provision in the insured's lease was [Read News]

Residues and don'ts: Circumstantial evidence fails to create issue of fact about proximate cause of alleged slip and fall

Josephine Torres v. Sanitation Salvage Corp. and The Hunts Point Terminal Market, Inc., __ A.D.3d __ (1st Dep't 2022)
A unanimous Appellate Division panel affirmed an order granting summary judgment for defendant and dismissing the Complaint as against it where plaintiff's only evidence of causation was residue she allegedly [Read News]

Amendments to New York Comprehensive Insurance Disclosure Act Partly Loosen Disclosure Mandate

Following the enactment of New York's Comprehensive Insurance Disclosure Act ("CIDA") in January (see "New Legislation Requires Insurance Disclosure, Amends Hearsay Rule", Newswire, January 4, 2022), [Read News]

New Legislation Requires Insurance Disclosure, Amends Hearsay Rule

Governor Kathy Hochul has signed legislation that amends New York's Civil Practice Law and Rules (CPLR) in two major ways that will likely have significant impact upon civil litigants in New York's courts.

The [Read News]

Duty to defend endures: Appellate Division affirms summary judgment declaring that plaintiff insurer continues to owe duty to defend, notwithstanding developments in underlying action

New York Marine and General Insurance Company v. Eastman Cooke & Associates et al., ___ A.D.3d ___ (1st Dep't October 28, 2021)
The New York Supreme Court, Appellate Division, affirmed a lower court's Decision declaring that one of a contractor's three insurers has a duty to defend it in an underlying property damage action, and [Read News]

Registration to Do Business in New York by Foreign Corporation Does Not Confer General Jurisdiction in New York Courts

by Glenn A. Jacobson
In Aybar v. Aybar, ___ N.Y.3d ___, 2001 NY Slip Op 05393, decided on October 6, 2021, New York's highest court, the Court of Appeals, ruled that foreign corporations registered to do business in New York [Read News]

Residential home renovations that led to natural gas line fire were not directed or controlled by homeowner; Court dismisses Labor Law claims

Canel, et ano. v. CNY Construction Management, Inc., et al., 8222/2015 (Sup. Ct. Suffolk Cty. August 31, 2021)
The "homeowners' exemption" to Labor Law sections 200, 240(1) and 241 applied to claims by workers burned in an accident involving a live natural gas line in a home under renovation. A Suffolk County [Read News]

Purdue Opioids-related insurance claims stayed in Bankruptcy Court pending arbitration

Avrio Health L.P. et al v. AIG Specialty Insurance Company, et al., 21-07005-rdd
The judge presiding in the Purdue Pharma LP bankruptcy case has granted the motion of several foreign-based insurers to stay insurance coverage proceedings against them in an Adversary Proceeding in favor [Read News]

In the Borough of Churches, Court grants summary judgment to defendant church where sidewalk with defect abutted next-door church

Jeanette Martinez v New York Metro District of the United Pentecostal Church International, Inc., et al., ___ A.D.3d ___ (2nd Dep't Nov. 4, 2020)
The Appellate Division, Second Department, reversed a Brooklyn Court's decision and granted summary judgment to a defendant church, finding it had met its burden under the Sidewalk Law, without submitting [Read News]

Failure to comply with preclusion order warrants dismissal of plaintiff's complaint; Court grants defendant's motion for summary judgment

Naranjo v. New Bushwick 68, LLC, et al., 5430/2020 (Sup. Ct. Kings Cty. September 16, 2020)
A preclusion order is not to be trifled with. A recent decision of a Brooklyn court shows exactly how serious it can be.

In Naranjo v. New Bushwick 68, LLC, Plaintiff sought damages for injuries [Read News]

Vexations in a veterinary clinic: Allegations of flooding, sewage, and other events within the policy period trigger duty to defend and reimburse

New York Marine and General Insurance Company v. Eastman Cooke & Associates et al., 152612/2014 (Sup.Ct. New York Cty. July 10, 2020)
A New York court has rejected an insurer's claim that it had no duty to defend its insured in an underlying action because of evidence in deposition testimony and allegations in a Bill of Particulars [Read News]

No Liability for Pallet Jack Fracas: Court Dismisses All Causes of Action against Operator of Produce Market

Gilley v. NYC Produce Terminal Market, 25317/2015E (Sup.Ct. Bronx Cty. Aug. 31, 2020)
All Labor Law and negligence causes of action were dismissed on summary judgment in an action by a porter who was working at the famous Hunts Point Terminal Market.

In a ten-page Decision and [Read News]

A Short Guide To The New Amendments To Reg. 64

by Mark I. Binsky
AGF&J Partner Mark I. Binsky's new article walks you through important changes to New York's insurance regulations regarding Unfair Claims Settlement Practices and Claim Cost Control Measures, in connection [Read News]

PPP Loans Create 2 Issues For Virus Biz Interruption Claims

By Glenn Jacobson and Mark Binsky
AGF&J partners Glenn A. Jacobson's and Mark I. Binsky's article "PPP Loans Create 2 Issues For Virus Biz Interruption Claims" was featured in Law360's "Expert Analysis". You can find the article at: [Read News]

Broker Liability For Insureds' COVID-19 Losses Likely Limited

by Glenn A. Jacobson and Thomas R. Maeglin
AGF&J partners Glenn A. Jacobson's and Thomas R. Maeglin's article "Broker Liability For Insureds' COVID-19 Losses Likely Limited" was featured in Law360's "Expert Analysis". You can find the article [Read News]

Event Cancellation Insurance Article Published in Law360

AGF&J partner Thomas Maeglin's article "Event Cancellation Insurance Rulings Organizers Must Know" was featured in Law360's "Expert Analysis". You can find the article at:

https://www.law360 [Read News]

Event Cancellation Insurance: Three Cases You Should Know in the Time of Coronavirus

An often-neglected insurance product - event cancellation insurance - is about to receive a lot of attention. The attached article, written by Thomas R. Maeglin of our office, examines three court decisions [Read News]

Is Business Interruption Coverage Immune to the COVID-19 Virus?

It has already begun to happen: Insureds are inquiring into the possibility of business interruption coverage because they had to close their stores, offices or other commercial premises due to the effects [Read News]

Trial Court should have conducted unified, not bifurcated, trial; Second Department clarifies alignment with uniform rule and other departments

Manuel Castro, et al. v. Malia Realty, LLC, et al., 177 AD3d 58, 2019 NY Slip Op 06466 (2nd Dep't September 11, 2019)
Bifurcation of trial, separating issues of liability and damages, is encouraged where it appears that it may assist in a clarification or simplification of issues and a fair and more expeditious resolution [Read News]

Losses from storm surge associated with a named windstorm were not caused by flood; Flood sublimit did not apply

New Jersey Transit Corp. v. Certain Underwriters at Lloyd's London, ___ A.3d ___, 2019 WL 6109144 (N.J. Super. Ct. App. Div. Nov. 18, 2019)
A New Jersey appellate court affirmed the decisions of a lower court which rejected contentions by insurers that the water damage to properties of the New Jersey Transit Corporation during Superstorm [Read News]

Appellate Division unanimously affirms summary judgment on no-fault serious injury defense

Cynthia Moctezuma v. Luis Garcia, ___ A.D.3d ___ (1st Dep't 2019)
A four-judge panel found no difficulty in affirming a Bronx court's decision granting summary judgment ruling that plaintiff failed to establish that her injuries were causally related to the subject [Read News]

The goniometer does not lie: defendant's motion for summary judgment granted upon showing of no "serious injury", with full ranges of motion

Olivare v. Tomlin, Index No. 303336/2016 (Sup. Ct. Bronx Cty. 2019)
In a fact-sensitive motion involving multiple physician affirmations and party testimony, Plaintiff's auto accident claims were dismissed by a Bronx Court after defendant showed that plaintiff did not [Read News]

Blood alcohol level estimated by expert ruled "speculative and conclusory;" Court dismisses plaintiffs' Dram Shop action against bar owner

Martinez v. Pena, et al., Index 161979/2014 (Adam Silvera, J.,Sup.Ct. N.Y.Cty. April 11, 2019)
Plaintiffs were injured in an automobile accident involving defendant Pena who, when at the moving defendant's bar earlier in the evening, was allegedly served alcohol while visibly intoxicated in violation [Read News]

Undisclosed witness affidavit rejected; Court grants defendant's motion for summary judgment based upon proof of its reasonable cleaning routine

Monterae Boglin v. New York City Housing Authority, Index No. 305089/2015 (Sup.Ct. Bronx Cty. 2019)
A Bronx Supreme Court granted summary judgment dismissing a personal injury action where defendant demonstrated it neither created nor had actual or constructive notice of a dangerous condition in the [Read News]

Snowfall on Sunday: liability precluded under 'storm in progress' doctrine

Giron v. NYCHA, Index No. 22599-2016E (Sup.Ct. Bronx Cty. 2019)
Plaintiff alleged she fell on a snow-covered exterior staircase that had not been shoveled, salted, sanded or cleaned, claiming that it had snowed the night before her fall but was not snowing at the [Read News]

Pet groomer's van held it in all winter; Court dismisses Complaint where pedestrian could not establish existence of leak that turned to ice on sidewalk

Curiotto v. Garcia, et al., Index No. 304127/2014 (Sup. Ct. Bronx Cty. 2019)
Plaintiff's slip and fall accident could not be traced to any leak from defendant's van. Accordingly, the Court granted defendant's motion for summary judgment.

Plaintiff allegedly slipped and [Read News]

Hazard lights signaled disabled vehicle; Summary Judgment granted where defendant vehicle owner waited 45 minutes for assistance before rear-end collision

Carmen Rodriguez v. George Rodriguez, Matadeen Chandrika, Jose Barzallo, Jose Zumba, Index No. 153682/2016 (Sup.Ct. March 11, 2019)
A New York County court granted the defendant's motion for summary judgment upon evidence that he did not breach any duty to plaintiff and was not liable for injuries she received while riding as a passenger [Read News]

Defendant exits twelve-car collision case unscathed; Court grants summary judgment dismissing claims and cross-claims

Grosswirth v. Prata, Index No. 53681/2016 (January 17, 2019)
A Westchester County court granted summary judgment to a defendant vehicle operator, dismissing not only claims by the plaintiff but cross-claims and third-party claims too.

Defendant operated [Read News]

Persistence wins the day; fifth order compelling disclosure applied to dismiss to dismiss "grossly derelict" plaintiffs' complaint

McQueen v. Parks, Index No. 0308964/2012 (Sup. Ct. Bronx Cty. January 9, 2019)
Plaintiffs were ordered on no less than five occasions to furnish a response to the defendant's post-Examination Before Trial demands. The responses never arrived, and a Bronx court dismissed plaintiff's [Read News]

Even with knee replacement surgery, plaintiff sustained no permanent consequential or significant limitation as a result of accident; Court grants defendant's motion for summary judgment

Cynthia Moctezuma v. Luis Garcia, Index No. 20483/2016E (Sup. Ct. Bronx Cty. December 17, 2018)
Citing extensive orthopedic, neurological and radiological expert reports, a Bronx Court granted summary judgment to a defendant in a motor vehicle accident case, dismissing the Complaint pursuant to [Read News]

Lead vehicle driver's non-negligence goes unrebutted; court grants summary judgment to defendant in chain collision

Ray v. Paris Limousine Service Corp., et al., 300606/2016 (Sup. Ct. Bronx Cty. Dec. 31, 2018)
Defendant was traveling in stop-and-go heavy traffic at a speed of one to five miles per hour when struck from behind by plaintiff's vehicle. Applying well-settled law, a Bronx court granted summary judgment [Read News]

New York courts' decisions reflect law's difficulties in responding to opioid crisis

by Thomas R. Maeglin
Two recent decisions from courts in New York reflect, in different ways, the difficulties posed by efforts to deal with the losses resulting from prescription opioids.

Readers may be familiar [Read News]

Appellate Court Unanimously Affirms Summary Judgment on Serious Injury Threshold

Avgush v. Jerry Fontan, Inc., et al., ___ A.D.3d ___ (1st Dep't 2018)
New York's Appellate Division, First Department, unanimously affirmed summary judgment dismissing an action brought in notoriously plaintiff-friendly Bronx County.

The details of the accident [Read News]

Anatomy of a No-Fault serious injury decision: Bronx court grants defendants' motion for summary judgment finding no causation theory to rebut expert report of degenerative damage

Appiah v. Adjei, et al., Index 21939/2014E (Bronx Cty. November 30, 2018)
The transcript of Oral Argument on defendants' motion for summary judgment provides an interesting look into the thought process of a working judge. In his decision placed on the record, the Honorable [Read News]

First Department affirms summary judgment dismissing action on No-Fault Law serious injury threshold; neither of two plaintiffs proved their injuries were

Ogando, et al. v. National Freight, Inc., et al., ___ A.D.3d ___ (1st Dep't 2018)
A unanimous Appellate Division panel affirmed the Bronx court's Decision dismissing a motor vehicle accident Complaint, agreeing that neither of the two plaintiffs who were allegedly injured in the subject [Read News]

Proof failed to raise issue of fact as to whether claimed injuries were causally related to motor vehicle accident; Appellate Division affirms dismissal of complaint under no-fault threshold

Thompson v. Bronx Merchant Funding Services, LLC, et al., __ A.D.3rd __ (1st Dep't November 27, 2018)
The Appellate Division, First Department, agreed with the IAS court's conclusion that plaintiff's medical evidence did not sufficiently establish a connection between plaintiff's injuries (including right-knee [Read News]

Obligation to pay defense fees arose at the time requested; additional insured contractor wins reimbursement for settlement and defense of bodily injury claim

Harco Construction, LLC et al. v. First Mercury Insurance Company, et al., Index No. 16601/2013 (Sup. Ct. Queens Cty. October 15, 2018)
In an important application of the Court of Appeals' decision in Sierra v 4401 Sunset Park, LLC, the Supreme Court, Queens County ordered and declared that a defendant insurer is obligated to reimburse [Read News]

No duty owed to fallen apple seller; Court grants summary judgment motion to premises owner

Sabouni v. Intercontinental Truck Brokerage, Inc., et al., Index No. 304243/2013 (Sup. Ct. Bronx Cty. Oct. 11, 2018)
Plaintiff, a fruit and vegetable seller, wanted to exchange some apples at the Hunts Point Terminal Market. So, with the approval, he thought, of one of the porters of an apple wholesaler (the Market's [Read News]

Meteorological evidence favors defense under 'storm in progress' doctrine; Housing Authority wins summary judgment on liability for slip-and-fall claim

Ysabel Batista v. New York City Housing Authority, et al., Index 162515/2014E (Sup.Ct. New York Cty. Sept. 26 2018)
The Complaint alleged that plaintiff was injured because the defendant New York City Housing Authority (NYCHA) failed to properly remove snow and ice from the premises where she fell. But the record [Read News]

Congratulations to 2018 New York Metro Area Super Lawyers

[Read News]

Speculation that defendant was speeding not sufficient to raise question of fact on liability where plaintiff made left-hand turn across path of oncoming vehicle

Millers-Francisco v. Abreu, Index No. 300717/2016 (Sup.Ct. Bronx Cty. 2018)
A Bronx Court granted summary judgment on liability to the defendant driver, dismissing the Complaint, over plaintiff's opposition speculating that defendant might have been speeding.

Plaintiff [Read News]

Pro se Plaintiff Strikes Out: Court dismisses case in its entirety and denies leave to amend the Complaint further on motions to dismiss the Amended Complaint

Mohammed Keita v. Bank of America, N.A., QBE First Insurance, and AIG Insurance (Civil Action No.: 1:17-CV-880 (ENV)(SLT)) (E.D.N.Y. August 21, 2018)
The action was one of at least 16 commenced by this pro se plaintiff, an "incessant filer of claims", in the Southern District alone, naming various insurers, agents, banks and others as defendants. [Read News]

Court rejects novel, but meritless, standing/capacity argument on motion to dismiss Underwriters' Complaint in declaratory judgment action

Certain Underwriters at Lloyd's, London v. Better Hope Holdings, LLC, et al., Index no.: 160794/2017 (Sup. Ct. NY Cty. 2018)
Does New York General Associations Law require Underwriters at Lloyd's, London to file a certificate of designation with the New York Secretary of State? That was the issue presented when defendants [Read News]

Motion for Stay of Arbitration denied based upon lack of jurisdiction and lack of coverage

In the Matter of the Application of Travelers Home and Marine Insurance Company, Index No. 613290/2017 (Sup. Ct. Nassau Cty. April 19, 2018)
The AGF&J Motor Vehicle Liability team defeated a motion in the Supreme Court, Nassau County, for a stay of arbitration proceedings. The Court denied plaintiffs' motion based on both lack of jurisdiction [Read News]

AGF&J wins pre-discovery Summary Judgment in products liability case in U.S. District Court for the Southern District of New York; Complaint dismissed in its entirety on procedural grounds

Brandon Steiner v. Anbrook Industries, Ltd., et al, (S.D.N.Y. April 4, 2018)
In an Opinion and Order dated April 4, 2018, Judge Katherine B. Forrest, U.S. District Court Judge for the Southern District of New York, granted summary judgment to the defendants and dismissed the plaintiff's [Read News]

New York Court of Appeals Expands Permissible Discovery of Social Media Accounts

by Glenn A. Jacobson, Esq & Barry Jacobs, Esq
The Court of Appeals provided guidance in its unanimous decision in Kelly Forman v. Mark Henkin, decided on February 13, 2018 that reversed the decision of a divided Appellate Division, First Department. [Read News]

Two victories for AGF&J auto liability defense team

Sanchez, et al. v. Mariolis, et al., Index 300999/2013 (Sup.Ct. Bronx Cty. Feb. 13, 2018); Hernandez et al. v. Abreu , Index 158716/2013 (Sup.Ct. New York Cty. Jan. 25, 2018)
The AGF&J auto liability defense team racked up a pair of victories in January and February.

In a case involving a rear-end collision, the Court dismissed the defendant's counterclaim for damages [Read News]

Plaintiff working outside of protections of Labor Law; Court dismisses 240, 241 and 200 claims

Edgardo DeGracia v. Hunts Point Terminal Market, Inc. and The City of New York, 309998/2011 (Sup.Ct. Bronx Cty. 2018)
The plaintiff was working for a fruit and vegetable vendor and needed to stock display racks with fruits. To obtain the produce inventoried high off of the ground, plaintiff stood on a pallet that was [Read News]

Title III ADA accessibility claim dismissed on summary judgment: plaintiff lacked standing and failed to meet burden of proof

Fredkiey Hurley v. Tozzer, Ltd. d/b/a "Niagara", 15-cv-02785 (S.D.N.Y. ___ 2018)
Steven DiSiervi, Esq. was recently successful in obtaining a rarely granted summary judgment on behalf of a defendant in a Title III ADA accessibility claim.

The plaintiff, Fredkiey Hurley, [Read News]

PLRB Large Loss Conference features AGF&J presentation on Construction Defect Claims

AGF&J partner Thomas R. Maeglin was a co-presenter in a program on construction defect claims entitled "The Water Intrusion Claim that Ate New Jersey" at the Large Loss Conference presented by the Property [Read News]

Allocation of settlement and defense fees between Employers Liability and Umbrella Excess policies improper where unlimited Employers Liability coverage available

QBE v. Zurich, Index No. 159020/2013 (Sup.Ct. N.Y. Cty. September 7, 2017)
Terms of an unlimited Employers Liability insurance policy and an Umbrella Excess policy required payment of the entire amount of settlement for an employee's wrongful death claim, as well as defense [Read News]

Helpful Hints for Determining Causation for Storm Damage Under Florida Law

by Glenn A. Jacobson, Esq & Mark I. Binsky, Esq
In the aftermath of Hurricane Harvey, property claims professionals are or shortly will be overwhelmed with building claims arising from Hurricane Irma. In many instances, it will be difficult to determine [Read News]

Condominium master policy does not cover damage to individual owners' units; Court grants summary judgment to defendant insurer

New Jersey Manufacturers Ins. Co. v. Hamilton Specialty Ins Co, et al., MER-L-18-17 (Sup.Ct. Mercer Cty. Aug. 28, 2017)
How is one to know whether a condominium association's policy provides coverage for individual units, and not just the common elements that are owned in common by all the unit owners? A New Jersey motion [Read News]

Second Circuit Court of Appeals affirms dismissal of radiologist's claims against insurance fraud investigator for Bivens and Federal Tort Claims Act claims

Shapiro v. Goldman, No. 16-3097-CV, 2017 WL 3635517 (2d Cir. Aug. 24, 2017)
Citing a "thorough opinion of the district court", the United States Court of Appeals for the Second Circuit affirmed a judgment dismissing claims against an insurance industry trade association.

Plaintiff [Read News]

Injuries possibly severe, but not shown to have causal link to auto accident; plaintiff failed to meet serious injury threshold and Court grants defendants summary judgment

Thompson v. Bronx Merchant Funding Services, LLC, et al., 23050/2012E (Sup. Ct. Bronx Cty. July 6, 2017)
In an important decision granting summary judgment to defendants in an auto accident personal injury action, a Bronx court found that plaintiff's medical evidence, though showing severe injuries, did [Read News]

Change of Venue motion relocates Bronx auto case

Bonilla v. Green, 25367/2016 (Sup. Ct. Bronx Cty. June 16, 2017)
A Bronx County court found that the plaintiff had selected an improper venue for the subject motor vehicle accident case, and granted defendant's motion to change venue from Bronx County to Nassau County. [Read News]

Court of Appeals finds additional insured endorsement requires insured to be proximate cause of injury giving rise to liability

A divided New York Court of Appeals has held that "where an insurance policy is restricted to liability for any bodily injury 'caused, in whole or in part' by the 'acts or omissions' of the named insured, [Read News]

Summary judgment for defendants where injuries were not causally related to accident

Ogando, et al. v. National Freight, Inc., et al., 309337/2012 (Sup.Ct. Bronx Cty. May 30, 2017)
A Bronx court dismissed a Complaint pursuant to Insurance Law section 5102(d), finding that neither of the two plaintiffs who were allegedly injured in the subject automobile accident had sustained a [Read News]

"Arising out of" and "caused by" endorsements both apply and both additional insured policies provide primary coverage; Additional insured coverage owed by defendant insurers for Labor Law matter

Church Mut. Ins. Co. v. Endurance American Specialty Ins. Co., 2017 WL 2335770 (Sup.Ct. N.Y. Cty. May 18, 2017)
Insurers of a contractor and its subcontractor must defend a building owner as an additional insured in an underlying personal injury action and reimburse the owner's insurer on a 50/50 basis, as directed [Read News]

New Jersey High Court Finds Limit to Flood Coverage for Sandy Damage

Oxford Realty Group Cedar v. Travelers Excess and Surplus Lines Company, ___ N.J. ___ (A-85-15) (077617) (May 25, 2017)
The New Jersey Supreme Court rejected an insurance policyholder's interpretation of a property insurance policy's limiting language and its position that "any policyholder not involved in the insurance [Read News]

Plaintiff's untimely Notice of Claim cannot be deemed timely served

McCullum v. New York City Housing Authority, Index No. 25275/2016E (Sup.Ct. Bronx Cty. 2017)
Plaintiff could not proceed with an action against the New York City Housing Authority where her notice was provided nine months after her accident, prejudicing defendant, and she failed to provide a [Read News]

What role for industry standards in the Scaffold Law? Reversal in the Court of Appeals sends plaintiff's Labor Law section 240(1) case back down to the trial court for findings of fact

by Thomas R. Maeglin
New York Labor Law practitioners will have food for thought in a 4-3 decision of the New York Court of Appeals, O'Brien v Port Auth. of N.Y. & N.J., __ N.Y.3d __, 2017 NY Slip Op 02466 (March 30, 2017). [Read News]

Insufficient Reservation of Rights letter bars insurer from further litigating allocation of covered and non-covered claims in water intrusion construction defect case

by Thomas R. Maeglin
The phrase "cut-and-paste" sounds ugly. But is cutting and pasting so offensive as to create millions of dollars in liability? In a recent case, South Carolina's highest court rejected an insurer's [Read News]

Court of Appeals settles question regarding motion court's discretion to grant leave to serve a late notice of claim under New York Municipal Law

by Thomas R. Maeglin
An issue that has generated a range of results in courts across New York - who has the burden of establishing prejudice caused by a late notice of claim against a public corporation - has been definitively [Read News]

Court untangles liability in four-car collision case; summary judgment granted to operator of car number three

Gargiulo-Sejfijaj v. Garbo Lobster; Aquino v. Kang, Index No. 281/2015 (Sup.Ct. Putnam Cty. 2017)
Four vehicles collided end-to-end on the Whitestone Bridge, and in the resulting personal injury actions, the Court imposed liability on the second and the last vehicle in a set of motions for summary [Read News]

Gorelick attends LEA Annual Meeting

AGF&J partner Michael E. Gorelick attended the 86th Annual Meeting and Mid-Winter Educational Conference of the Loss Executives Association, held in Tampa, Florida. Gorelick said, "I always look forward [Read News]

Abrams, Gorelick, Friedman & Jacobson Announces Partner Promotion and Two New Associates

Abrams, Gorelick, Friedman & Jacobson, LLP is pleased to announce that Dennis Monaco has become a partner, and that Martha Nimmer and Jessica Rabkin have joined the firm as associates.

"We are [Read News]

Breach of insurance policy Subrogation Clause and Cooperation Clause bar property damage claim; Appellate Division reverses lower court's denial of motion for summary judgment

915 2nd Pub, Inc. v QBE Ins. Corp., __ A.D.3d __, 2017 NY Slip Op 00019 (1st Dep't 2017)
Plaintiff's property insurance policy contained terms requiring the insured to "do everything necessary to secure" and "do nothing after loss to impair" the defendant insurer's subrogation rights. A [Read News]

Court of Appeals rules on timeliness of objection to CPLR 3101(d) expert disclosure

By Leonard G. Kamlet, Esq. and Thomas R. Maeglin, Esq.
The expert disclosure rules set forth in CPLR 3101(d) have long been an area of confusion and disagreement. Over the past several years the lack of complete clarity of this most important practice rule [Read News]

Berlin on faculty of October seminars

Steven M. Berlin appeared with group of legal and insurance industry experts at the FOJP Insurance Risk Management Advisory Services team seminar "Managing Your Organization's Workers' Compensation Program" [Read News]

Products liability law and damages seminar in London features Jacobson

AGF&J partner Glenn A. Jacobson and other members of the Harmonie Group and Canadian Litigation Counsel conducted a seminar exploring US and Canadian perspectives on new developments in products liability [Read News]

Court of Appeals holds contractor defendant to building permit application; name on permit application and threat to withdraw permit bar summary judgment

Utica Mutual Insurance Company & Co., v. Style Management Associates Corp., et al., __ N.Y.3d ___; 2016 NY Slip Op 07046 (October 27, 2016)
New York's highest court reversed an intermediate appellate decision and denied summary judgment to a defendant contractor where it found "triable issues of fact exist as to the nature of the relationship [Read News]

Rise of the Car Sharing Programs: Recommendations for an Expanding Industry

By James E. Kimmel
With millennials and others young at heart leading the way, ride sharing programs have become a 21st century success story. With Zipcar, now a subsidiary of Avis Budget Group, starting the movement in [Read News]

Defects and shortcomings in submissions from plaintiff's chiropractor; Summary Judgment granted for defendant on serious injury threshold

Thomas v. Crittenden, 2016 WL 6138392 (Sup.Ct. Bronx Cty. 2016)
A Bronx court has granted defendant's motion for summary judgment dismissing Plaintiff's complaint for failure to satisfy the serious injury threshold under Insurance Law section 5102(d), based upon defendant's [Read News]

Noseworthy doctrine applies, but Bronx Court still finds for defendants in motorcycle fatality

Virgulak v. Neal, et al., Index No. 22357/2013E (Sup.Ct. Bronx Cty. October 3, 2016)
A Bronx motion court granted summary judgment dismissing claims against drivers of vehicles who were allegedly involved in the plaintiff's decedent's motorcycle accident.

Plaintiff's decedent [Read News]

Negligent disposal of video evidence not sufficient to warrant striking of defendant's answer; Appellate Division modifies with adverse inference charge

Peters v Hernandez, 142 AD3d 980, 2016 NY Slip Op 05983 (2nd Dep't 2016)
An interesting decision from a state appellate court sets limits under the spoliation doctrine regarding the appropriate sanction for losing video evidence. Something more than negligence is needed for [Read News]

Defendants granted summary judgment in claim for permanent loss of vocal cords and speech from auto accident

Doron Avgush v. Jerry Fontan, Inc. and Gerardo Fontan, Index No. 20734/2012E (Sup.Ct. Bronx Cty. August 29, 2016)
Plaintiff was rear-ended while driving on the Sawmill River Parkway in September 2011 and commenced an action for personal injuries, alleging spasmodic dysphonia, tongue dystonia and torticollis resulting [Read News]

Advocate-witness Rule applies where counsel was privy to information regarding the pertinent underlying transactions: motion to disqualify counsel granted

Facie Libre Associates I, LLC v. Littman Krooks, LLP, Index 651064/2013 (Sup. Ct. N.Y. Cty. June 29, 2016)
In a legal malpractice action, the Court granted the defendant's motion to disqualify plaintiff's attorneys because they would be called to testify as witnesses at trial.

Plaintiff commenced [Read News]

Interior gate not required for freight elevator under Code in 1923; Court dismisses Complaint for injuries suffered on manually operated freight elevator

William Romero v. Waterfront N.Y., et al, 19852/2009 ((Sup.Ct. Kings Cty. 2016)
In a twenty-seven page decision, Justice David B. Vaughan granted summary judgment, dismissing a personal injury Complaint by an elevator operator, in its entirety.

Plaintiff sustained substantial [Read News]

Plaintiff fails to identify a specific asbestos containing product manufactured, delivered, distributed or supplied by the defendant: asbestos injury claim dismissed

DeChantal v. Harco, LLC, Index No. 900261/2015 (Sup.Ct. Albany Cty. 2016)
A Complaint alleging asbestos injury has been dismissed as against one of numerous defendants where plaintiff failed "to adequately identify a specific asbestos containing product manufactured, delivered, [Read News]

Subrogation plaintiffs obtain reversal in Appellate Division: questions of fact including whether auto dealership negligently performed vehicle recall

Utica Mutual Insurance Company v. Ford Motor Company, et al., __ A.D.3d __ (2nd Dep't May 4, 2016)
A motion court erred in granting the defendant auto dealership's motion for summary judgment, as there existed questions of fact concerning its negligence in carrying out an automaker's recall, and the [Read News]

Labor Law defendants prevail under homeowners exemption; defendants' progress checks insufficient to raise issue of fact

Castillo v. Kelly, Index No. 67990/2014E (Sup. Ct. Suffolk Cty. May 3, 2016)
A Suffolk County Court dismissed all claims against the defendant homeowners asserted by a carpenter who fell from the roof of their property.

The claim arose when the plaintiff was cleaning [Read News]

Kamlet on faculty of 2016 Hofstra/NITA Trial Techniques Program

In April, AGF&J partner Leonard G. Kamlet continued his long-time participation on the faculty of the Hofstra Law School/NITA Trial Techniques Program, which provides intensive professional training to [Read News]

Statute of limitations bars legal malpractice claim; Court rejects application of continuous representation doctrine

Harris v. Wachtel & Missry, LLP and Omid Zareh, P.C., Index No. 605895-2015 (Sup.Ct. Nassau Cty. March 22, 2016)
A Nassau County court has dismissed legal malpractice claims where evidence showed the attorney-client relationship had ended more than three years before commencement of the action.

Plaintiff [Read News]

Video surveillance footage proves crucial to defeat all claims against security guards

Schumacher v. Antiquorum USA, Inc., NY Slip Op. (Sup.Ct. N.Y.Cty. 2016)
Video surveillance footage ruled out the possibility of a triable issue of fact, and a Supreme Court Justice therefore dismissed all claims against two security guards upon motion for summary judgment.

Plaintiff [Read News]

The Location of a Defect is No Longer the Sole Determinant of Liability Under NYC Sidewalk Law According to the New York Court of Appeals

By Leonard G. Kamlet, Esq. and John O. Fronce, Esq.
An action is commenced against two neighboring property owners whose premises abut a public sidewalk in New York City. The actual location where the plaintiff tripped and fell is on an area of the sidewalk [Read News]

Mr. Steven DiSiervi to Speak at the 2016 CLM Annual Conference

Steven DiSiervi, Attorney, Abrams, Gorelick, Friedman & Jacobson, LLP, will speak at the CLM Annual Conference, which will be held at the Hilton Orlando Bonnet Creek, April 6-8. His session is titled, [Read News]

Plaintiff's case is a few berries short of a pie: court rejects expansion of New Jersey's 'mode-of-operation' rule

By Thomas R. Maeglin, Esq.
A customer of a clothing store in a mall slips on a berry and falls. The store does not sell berries, there is no fruit in the area, and no one is seen eating in the vicinity. There is no evidence that [Read News]

LLC's managing member was aware of accident, ambulance, hospitalization; no excuse for one-year delay in providing notice to insurer under common law 'no-prejudice' rule

VGFC Realty II, LLC v. D'Angelo, et al., Index No. 28211/2011 (Sup.Ct. Queens Cty. February 2, 2016)
A Queens Court granted a defendant's motion for summary judgment, declaring that the insurer does not have a duty to defend or indemnify named insured property lessee in an underlying lawsuit.

The [Read News]

Guidance Issued for New York City's Ban-the-Box Law

by Steven M. Berlin, Esq. and Karen Hart, Esq.
This is the first full year employers must comply with New York City's Fair Chance Act ("FCA"), better known as the City's "Ban-the-Box" law. Near the end of 2015, the City's Commission on Human Rights [Read News]

New NYS Laws Add Protection for Women in the Workplace

By Steven M. Berlin, Esq. and Kamilah Mitchell, Esq.
Five new laws that will have significant effects on employers throughout New York State take effect January 19, 2016. Signed by Governor Andrew Cuomo with some fanfare, they are further efforts designed [Read News]

New Year Brings New Sick Leave for New Brunswick

By Steven M. Berlin, Esq. and Michael Goldwasser
Effective this New Year, the growing community of New Brunswick, in the central part of New Jersey near Edison and Woodbridge, enacted its own paid sick leave ordinance with the aim of reducing public [Read News]

Final Regulations Issued for New Jersey's Ban-the-Box Law

By Steven M. Berlin, Esq. and Karen Hart, Esq.
The New Year started off in New Jersey with final regulations intended to clarify the Opportunity to Compete Act (OTCA), better known as New Jersey's "Ban-the-Box" law. The regulations were released [Read News]

NLRB Panel Rules Policies Barring Workplace Recordings Unlawful

By Steven M. Berlin, Esq. and Karen Hart, Esq.
It was not until the start of the New Year, when employers began to learn about an unprecedented Christmas Eve gift-to workers-from the National Labor Relations Board. Building upon its activity in recent [Read News]

New York Appellate Court Pokes Defendants' Entitlement to Facebook Posts

By James E. Kimmel, Esq.
In an important decision on the discoverability of information posted to social media the Appellate Division, First Department, reversed a lower court order directing production of certain information [Read News]

Amendment to CPLR limits judge's discretion in rejecting expert affidavits

A recent amendment to New York Civil Practice Law and Rules 3212 (b) makes it easier to use affidavits of previously undisclosed experts in motions for summary judgment.

The amendment, which [Read News]

The Court of Appeals Revisits and Upholds the Trivial Defect Defense

Hutchinson v. Sheridan Hill House Corp., __ N.Y.3d __ (October 20, 2015)
After almost twenty years, the New York Court of Appeals has revisited the trivial defect defense. Rather that break new ground, the Court reinforced its holdings in the seminal trivial defect case, [Read News]

Court denies request to add defendants to FDCPA Complaint; cites lack of diligence, inordinate delay and substantial prejudice

Zucker v. Porteck Global Services, Inc., et al., 13-CV-2674 (E.D.N.Y. October 23, 2015)
Officers of two health care companies defeated Plaintiff's attempt to amend a Class Action Complaint to name them as defendants. United States District Judge Joanna Seybert denied Plaintiff's motion [Read News]

Appellate Division vacates award of plaintiff's damages; expert failed to provide voluminous medical records before appearing for trial

Noor v. The City of New York, et al., __ A.D.3d __ (1st Dep't July 28, 2015)
Plaintiff's expert withheld voluminous documents until his appearance at trial, and the Appellate Division therefore vacated the damage award and remanded for a new trial on damages.

Prior to [Read News]

Two-year gap in plaintiff's medical treatment relieves defendant; Court grants summary judgment for failure to show "serious injury"

Pujols-Duarte v. Provenzano, Index No. 301773/2013 (Sup.Ct. Bronx Cty. June 29, 2015)
Plaintiff failed to demonstrate a 'serious injury' under Insurance Law sections 5102(d) and 5104(a), leading the Court to grant the defendant's motion for summary judgment dismissing the Complaint in [Read News]

Chiropractor's Affidavit has no probative value; summary judgment on lack of "serious injury"

Balbuena v. Vasquez, Index. No. 307194/2012 (Sup.Ct. Bronx Cty. 2015)
A Bronx Court dismissed an auto collision Complaint, granting summary judgment to the defendants upon a showing that both plaintiffs lacked a "serious injury" required by New York State Insurance Law [Read News]

In Bronx prayer service case, Arbitration Award in favor of defendant on liability

Tabales v. United Methodist Iglesia Evangelica Church, Index. No. 23095/2012 (Sup.Ct. Bronx Cty. 2015)
Numerous inconsistencies in the plaintiff's testimony led a JAMS Arbitrator to find in favor of the defendant property owner in an action alleging serious injuries from a fall in a darkened stairway behind [Read News]

Virginia auto insurer not subject to personal jurisdiction in New Jersey; Court dismisses UM insurer's Third-party Complaint seeking reformation of the policy

Culqui v. Carrera, UNN-L-4132-13 (N.J. Sup.Ct. April 28, 2015)
A New Jersey Court dismissed a Third-party action against a foreign insurer for claims arising out of a motor vehicle accident in New Jersey. The insurer demonstrated that it did not have such "minimum [Read News]

Law360 article quotes Jacobson

Comments of AGF&J partner Glenn A. Jacobson were included in a recent article entitled "3rd Circ. Sandy Debris Ruling Vexes Policyholders" published in Law360. The article discussed the decision of the [Read News]

The Journal of American Law publishes article by AGF&J partners

An article co-authored by AGF&J Partners Michael E. Gorelick and Alexandra Rigney was published in the Spring 2015 issue of The Journal of American Law. The article, entitled "Preserving the Privilege [Read News]

Proof of Loss untimely when not provided within extension of time granted by property insurer: Court grants insurer's motion to dismiss

125 Belle Harbour, LLC and Fortress Development Group, LLC v. Underwriters at Lloyd's, London, Index 654266/2013 (Sup.Ct. N.Y.Cty. 2015)
In a breach of contract action concerning first party property insurance coverage, the Honorable Eileen A. Rakower granted the defendant insurer's pre-answer motion to dismiss a Complaint which sought [Read News]

Plaintiff's unexplained conduct thwarts the 50-h hearing process: Claim against City and Housing Authority conditionally dismissed

Bianca Pichardo v. The City of New York and New York City Housing Authority, Index No. 157494/2014 (Sup.Ct. N.Y.Cty. 2015)
Finding himself "at a loss to find any justification in plaintiff's attorney's action", Justice Frank P. Nervo conditionally granted a motion to dismiss a personal injury action for conduct that "thwarted [Read News]

First party Insurer obtains Summary Judgment dismissing water damage claims under All-Risk policy

Astoria Island Restaurant Corp. v. QBE Insurance Corp., 36-02 35th Avenue Development, LLC, and 42-18 Development, LLC, Index No. 15607/2010 (Sup.Ct. Queens Cty. 2014)
In a seven-page decision, the Hon. Sidney F. Strauss held that Plaintiff's claims against its Commercial Property insurer were barred by multiple policy exclusions.

Tenant Insured brought suit [Read News]

Defendants demonstrate that alleged defect was trivial and not actionable by law; Court grants summary judgment

Sturm v. Myrtle Catalpa, LLC, et al., Index No. 1433/2013 (Sup.Ct. Queens Cty. 2014)
The Honorable Sidney F. Strauss granted summary judgment dismissing the Complaint as to all defendants in a personal injury action concerning a trip and fall accident. Defendants met a difficult burden [Read News]

Sandy Team featured in Law360 Article

AGF&J partners Glenn A. Jacobson and Gabrielle Puchalsky were featured in a recent article published in Law360 which discussed current issues in first party coverage litigation arising out of Superstorm [Read News]

AGF&J approved as CE provider for insurance agents and adjusters in Texas

We are pleased to announce that the Texas Department of Insurance has approved Abrams, Gorelick as a continuing education provider for insurance agents and adjusters. We have always provided educational [Read News]

Super Lawyers - 2014

AGF&J partners Michael Gorelick and Glenn Jacobson have again been named as N.Y. Metro Area "Super Lawyers", and Steven DiSiervi and Alexandra Rigney have been named as "Rising Stars" for 2014 by Super [Read News]

AGF&J gets default judgment vacated and complaint against client dismissed: substituted service upon defendants at their summer home is insufficient

Castillo v. Kelly, Index No. 30452/12 (Sup.Ct. Suffolk Cty. 2014)
AGF&J was successful in getting a default judgment against its clients vacated and the Complaint against them dismissed on the ground that service upon a summer home via "nail & mail" service is improper [Read News]

AGF&J approved as CE provider for insurance agents and adjusters in Florida; New York soon to follow.

We are pleased to announce that the Florida Division of Licensing has approved Abrams, Gorelick as a continuing education provider for insurance agents and adjusters. We have always provided educational [Read News]

AGF&J obtains dismissal of suit against its client based upon the operation of a Surrender Agreement

Mills v. G Loft, Index No. 1102/2014 (Sup.Ct. Kings Cty. 2014)
Abrams, Gorelick obtained a pre-answer dismissal of a highly contested personal injury lawsuit against its client, based upon the language of a Surrender Agreement. Prior to the filing of the action, [Read News]

AGF&J wins summary judgment dismissing a $1,150,000 claim against its insurance company client

Liberty Surplus Insurance Corporation v. Burlington Ins. Co. and QBE Insurance Corp., Index No. 155165-2012 (Sup.Ct. N.Y.Cty. 2014)
In Liberty Surplus Insurance Corporation v. Burlington Ins. Co. and QBE Insurance Corp., Liberty Surplus ("LSI") brought suit against QBE for recovery of $1,150,000 of the $2,150,000 it paid to settle [Read News]

AGF&J Wins Summary Judgment for its client in a motor vehicle accident

Wynn v. Rivera, Index No. 307938/2010 (Sup.Ct. Bronx Cty. 2014)
On July 7, 2014, Honorable Ben R. Barbato of Supreme Court, Bronx County, granted summary judgment to AGF&J's client in Wynn v. Rivera. In that case, plaintiff claimed that he had sustained serious injuries [Read News]

Abrams, Gorelick opens a New Jersey Office

AGF&J has long served its clients in coverage and defense litigation in New Jersey. Nearly half of the Firm's partners and associates practice in New Jersey, as well as in New York. To accommodate our [Read News]

Three honored by Jewish Lawyers Guild

The Jewish Lawyers Guild presented three awards at its 38th Annual Dinner on April 2, 2014. AGF&J partner Glenn A. Jacobson, who serves as Chairman of the Guild, presented the Golda Meir Memorial Award [Read News]

Expert report establishes grounds for summary judgment

Juan Aviles v. Heriberto Bermejo, Index No. 114452/2011 (Sup.Ct. N.Y.Cty. March 21, 2014)
Justice Arlene P. Bluth, J.S.C., granted summary judgment to an owner-operator of a vehicle, finding that the defendant had established that the plaintiff had not suffered a "serious injury" within the [Read News]

Driver’s Alleged Lack of Proper Attention Not Supported by Any Evidence in Auto Accident Case: Appellate Division Affirms Summary Judgment for Defendant

Linda A. Foreman v. Jihad Skeif, ___ A.D.3d ___, 2014 N.Y. Slip Op. 1837 (1st Dep't March 20, 2014)
The Appellate Division, First Department, affirmed a lower court's Order granting the defendant's motion for summary judgment as to the issue of liability in a multi-vehicle accident in Bronx, New York. [Read News]

AGF&J Wins Summary Judgment for its client in a motor vehicle case based upon New York’s

Ahmed v. Lu and Wang, Index No. 301462/2012 (Sup.Ct. Bronx Cty. 2014)
On March 28, 2014 Judge Kenneth L. Thompson, Supreme Court, Kings County, granted summary judgment to AGF&J's client in Ahmed v. Lu and Wang, a motor vehicle accident case. In support of the motion, [Read News]

Defense Verdict in Two-day Summary Jury Trial

Shakyra Parker v. Lorena E. Bowie and Kevin L. Bowie, Index No. 118213/2009 (Sup.Ct. Bronx Cty. 2014)
Following a two-day long Summary Jury Trial in Supreme Court, Bronx County before Judge Arlene Bluth, a jury delivered a unanimous defense verdict. The jury found that the plaintiff did not sustain a [Read News]

Steven DiSiervi to speak at the CLM 2014 Annual Conference

Mr. Steven DiSiervi, Attorney, Abrams, Gorelick, Friedman & Jacobson, PC, will be speaking on the subject, "ETHICS - Walk the Line: Ethics for Insurance Carrier-Selected Defense Counsel." Held each spring, [Read News]

Attorney communications with insurer absolutely immune from disclosure pursuant to the attorney-client privilege; Appellate Division reverses order compelling disclosure

VGFC Realty II, LLC v. D'Angelo, ___ A.D.3d ___ (2nd Dep't 2014)
The Appellate Division, Second Department, reversed an order of a motion court which had compelled a defendant insurer to disclose documents that the insurer claimed were subject to privilege.

The [Read News]

Contractual Indemnification dismissal affirmed; no binding indemnification agreement at time of accident

Augustin Paez v. 1610 Saint Nicholas Avenue, L.P. et al., 2014 NY Slip Op 421 (1st Dep't 2014)
A decision previously reported in these pages was unanimously affirmed, on alternative grounds, resulting in a dismissal of contractual indemnification claims against the owner of a restaurant property [Read News]

Abrams, Gorelick opens a representative office in London

AGF&J has opened a representative office in London, located at 3 Minster Court, Mincing Lane, London EC 3R 7DD. Our London office will enable us to better serve the needs of our London insurance clients. [Read News]

Wal-Mart's Claims Against Transportation Contractor Dismissed on Pre-Answer Motion

Eckhoff v. Wal-Mart Assocs, Inc., 2013 U.S. Dist. LEXIS 181156 (S.D.N.Y. 2013)
The United States District Court for the Southern District of New York dismissed a Third-Party Complaint by a Wal-Mart subsidiary finding that the indemnification agreement at issue did not apply.

U.S. [Read News]

At trial AGF&J team defeats Bronx auto plaintiff on both liability and "serious injury" threshold

Posimato v. Ortega, Index 1844/04 (Sup. Ct. Bronx Cty. 2013)
A unanimous Bronx jury returned a verdict in favor of the defendant finding that he was not negligent in causing the subject accident. In addition, the jury also found that the plaintiff did not sustain [Read News]

Neurologist and Orthopedist reports establish that plaintiff did not sustain "serious injury": Court dismisses Complaint on motion for summary judgment

Rivera v. Hayes, Index No. 20830/10 (Sup.Ct. Bronx Cty. December 9, 2013)
The Honorable Alexander W. Hunter granted a Bronx defendant's motion for summary judgment and dismissed the plaintiff's Complaint for failure to show a "serious injury" as required under Insurance Law, [Read News]

No explanation of deficits in range of motion after findings of improved range within four months of accident: Appellate Division reverses motion court's denial of summary judgment on "serious injury"

Nova v. Fontanez, ___ A.D.3d ____ (1st Dep't December 5, 2013)
Plaintiff failed to demonstrate his alleged "significant limitation of use" or "permanent consequential limitation of use" in an action arising out of a motor vehicle accident, according to the unanimous [Read News]

Important decision concerning car sharing services limits liability under the Graves Amendment

Moreau v. Josaphat, N.Y. Law Journal, December 3, 2013 (Sup.Ct. Kings Cty. 2013)
The Graves Amendment applies to "car sharing services", a New York Court has held. This means that car sharing services, such as Zipcar, are entitled to the same protections afforded to rental car companies [Read News]

Maeglin part of Superstorm Sandy panel at PLRB Large Loss Confererence

AGF&J partner Thomas R. Maeglin spoke at the Large Loss Conference presented by the Property and Liability Resource Bureau in Jacksonville, Florida on November 19th and 20th, in a program entitled "Superstorm [Read News]

Misrepresentations concerning primary residency and ownership or occupancy of other residence provide grounds for rescinding homeowners policy

Stollenwerck v. Adirondack Ins. Exchange, Index No. 601202/2010 (Supreme Ct. N.Y. Cty. Sept 25, 2013)
In a first-party fire case, Justice Richard F. Braun granted the insurer's motion for summary judgment, finding that the insured had made material misrepresentations on her application for a homeowners [Read News]

No extension of time for Plaintiff to effect service due to failure to exercise due diligence; Court dismisses auto-accident complaint

Nancly Jean-Pierre v. Roderick Crawford, Index No. 308139/2012 (Sup.Ct. Bronx Cty. October 4, 2013)
Purported service of process at a location in the Bronx, nearly three years after a traffic accident, was improper, where the defendant established he was, in fact, a resident of Brooklyn. Acting Supreme [Read News]

New Jersey Bill A-4382 seeks to provide insureds with a private cause of action against insurers for unfair settlement claims practices.

Two New Jersey Assemblymen, Messrs. Reed Gusciora and Timothy J. Eustace, have proposed a bill to the state legislature which would have a significant impact on insurers’ extra-contractual exposure. [Read News]

AGF&J thrice honored by Super Lawyers

The New York Metro issue of Super Lawyers, published by Thomson Reuters, has again honored AGF&J partners.

Michael E. Gorelick was named a "Super Lawyer" for his work in Insurance Coverage and [Read News]

James M. Brown, Esq.

We are pleased to announce that James M. Brown, Esq., has joined AGF&J. Mr. Brown joins the Construction Law, General Liability, and Products Liability groups.

Mr. Brown has extensive experience [Read News]

Contention that contractor created dangerous condition "far too speculative"; court dismisses direct claim and third-party complaint

Farley v. Gilbane Building Company, Index No. 18178/2008 (Sup.Ct. Kings Cty. 2013)
In a 47-page decision, the Honorable Richard Velasquez dismissed claims against an electrical contractor in a personal injury action brought by a security guard.

The plaintiff worked for 21 months [Read News]

Apportionment of Loss clause questions certified to New York Court of Appeals

Quaker Hills v. Pacific Indemnity, 11-3670 (2nd Cir. Aug. 29, 2013)
In a case with potentially far-reaching implications relating to the right to limit property insurance coverage, the United States Court of Appeals for the Second Circuit has certified three questions [Read News]

Physical limitations and their duration unsupported by objective proof; defendant driver entitled to summary judgment on serious injury threshold

Sook Hee Park v. Young O. Park and Michael Papadakis, Index No. 310492/2009 (Sup. Ct. Bronx Cty., May 21, 2013)
The Honorable Ben R. Barbato issued a Decision and Order granting summary judgment dismissing the Summons and Complaint of the plaintiff on the grounds that plaintiff did not sustain a serious injury [Read News]

No serious injury says unanimous Bronx jury

Segundo M. Rodriguez v. Erasmo M. Pichardo and Alfredo Reynoso, Index No. 310663/2008 (Sup. Ct. Bronx Cty. 2013)
A Bronx jury rendered a unanimous verdict in favor of the defendant driver, finding that the plaintiff did not sustain a "serious injury" as defined by New York State Law.

The action arose from [Read News]

No waiver of privilege over appraiser's report; Appellate Division reverses Order compelling disclosure

915 2nd Pub Inc. d/b/a Thady Con's Bar & Restaurant, et al. v. QBE Insurance Corporation, 2013 NY Slip Op 04748 (1st Dep't 2013)
A single notation in a claim file that an expert's report was sent to plaintiffs' prior counsel is insufficient to show waiver of privilege over an appraisal report prepared by an expert at defense counsel's [Read News]

Landlord not an additional insured for property damage under tenant's policy: Court grants summary judgment to insurer

Cog-Net Building Corp. v. The Travelers Indemnity Company, and Russo Picciurro Maloy, LLC d/b/a RPM Insurance Agency, Index 100587/2010 (Sup.Ct. Richmond Cty. May 22, 2013)
Justice Joseph J. Maltese granted motions for summary judgment by a defendant insurer and a co-defendant insurance broker in an action by a landlord under a commercial package insurance policy issued [Read News]

Testimony concerning building violations at defendant's premises insufficient to defeat motion for summary judgment by out-of-possession landlord

Joseph v. Emmis Communications d/b/a Hot 97.1 FM, et al., Index No. 20843/2010 (Sup. Ct. Bronx Ct. April 19, 2013)
Plaintiff's reference to deposition testimony concerning building violations was not sufficient to raise a triable issue of fact, held a Bronx Court.

The defendant moved for summary judgment [Read News]

Climatological data supports summary judgment for parking lot owner: Court finds no actual or constructive notice of icy condition

Lakins v. 171 E.205th Street, Index No. 301868/2009 (Sup. Ct. Bronx Cty. April 1, 2013)
Use of precipitation and sunset data made all the difference in a Bronx slip and fall action. Plaintiff claimed to have slipped on snow and ice in an open-air parking lot on a late January afternoon. [Read News]

Legislation Proposed to Ban Anti-Concurrent Causation Clauses in New York

Anti-concurrent causation clauses are currently valid and enforceable in New York. While there is scant case law analyzing ACC clauses in the context of Superstorm Sandy (given that New York has been [Read News]

Jacobson elected President of the Harmonie Group

AGF&J founding partner Glenn A. Jacobson became President-elect of the Harmonie Group for a two-year term beginning January 2013. John Lund, a partner with the firm of Snow, Christensen & Martineau of [Read News]

Waiver of subrogation provision bars claim for fire loss, and language in lease rider not in conflict: Appellate Division affirms summary judgment for tenant

Travelers Indemnity Co. a/s/o Acme Architectural Products Inc. v. AA Kitchen Cabinet & Stone Supply, Inc. and Mutual Gas & Energy Corp., 2013 NY Slip Op 3322 (2nd Dep't 2013)
The Appellate Division, Second Department, unanimously affirmed an Order which granted Summary Judgment to a tenant in a subrogation action for damage by fire.

The Court agreed that the tenant [Read News]

Defendant/Third-party Plaintiff’s default deemed admission of negligence fatal to third-party claim

Augustin Paez v. 1610 Saint Nicholas Avenue, L.P. et al., Supreme Court, New York County, Index No. 117172/2009 (April 16, 2013)
A New York County Justice has dismissed a Third-party claim for contractual indemnification where the Defendant/Third-party Plaintiff’s default established that it had been negligent.

In [Read News]

Defendant driver goes straight, wins summary judgment.

Foreman v. Skeif and Foreman, Supreme Court, Bronx County, Index No. 304720/2010, March 27, 2013
A Bronx Court has granted defendant’s motion for summary judgment as to the issue of liability in a motor vehicle collision case.

In the motion, the defendant driver established that [Read News]

Bill Introduced to New York Assembly Proposing Private Right of Action for Insureds Where a “Disaster Emergency” Has Been Declared

New York courts have consistently barred insureds from instituting private causes of action under New York’s unfair claims practices statutes, specifically Insurance Law §2601: Unfair Claim [Read News]

Three-year delay in rejecting tender invalidates disclaimer based upon “Intra-Insured” exclusion

QBE Insurance Corporation, et al. v. Public Service Mutual Insurance Company, et al. (Appellate Division, First Department, Jan. 8, 2013)
A unanimous Appellate Division reversed a lower court decision and held that the defendant insurer has duty to defend and indemnify its additional insured because it unreasonably delayed denying coverage [Read News]

AGF&J releases Whitepaper on Superstorm Sandy coverge issues

Click on this link to view Superstorm Sandy Emerging Coverage Issues

AGF&J has released a Whitepaper discussing issues of concern in Superstorm [Read News]

AGF&J team continues streak in defeating “serious injury” claims in Bronx auto cases

Ross v. Arroyo, Supreme Court, Bronx County, Index No. 309161/2010
A Decision and Order of the Honorable Justice Ben A. Barbato extended a string of successes for AGF&J Partner Irwin Miller and Associate Dennis Monaco, in cases involving claims of “serious injury” [Read News]

Vigorous closing leads to unanimous defense verdict

Montgomery v. Greaves, et al., Supreme Court, Bronx County, Index No. 18458/2007
In a summary jury trial in Supreme Court, Bronx County, AGF&J obtained a defense verdict on liability in favor of the owner of a parked vehicle. Plaintiff had settled with the driver of the other automobile [Read News]

Three AGF&J Partners honored in 2012 Super Lawyers

AGF&J is pleased to announce that Partners Michael E. Gorelick, Glenn A. Jacobson and Steven DiSiervi have been named in the 2012 New York Metro issue of Super Lawyers, published by Thomson Reuters. Gorelick [Read News]

Labor Law complaint dismissed on summary judgment: Circus worker sewing tent not engaged in “construction”

Zare v. City of New York, Supreme Court, Bronx County Index No. 308994/2009, August 31, 2012
A Bronx court granted summary judgment for the City of New York on Labor Law section 240(1) and 241(6) claims brought by a circus employee. The plaintiff allegedly fell approximately eighteen (18) inches [Read News]

No leave to appeal replacement cost holdback case

1840 Concourse Associates LP v. Praetorian Insurance Company f/k/a Insurance Corporation of Hannover, Mo. No. 2012-616 (August 30, 2012)
The Court of Appeals has denied plaintiff’s motion for leave to appeal in a case previously reported in Newswire. (See “Appellate Division affirms summary judgment order: Finds Signed Statement [Read News]

Summary Judgment granted against three plaintiffs: no showing of sustainable serious injury

Lopez, et al. v. Reynoso, et al, Supreme Court, Bronx County, Index No. 310669/2008
Honorable Justice Wilma Guzman granted summary judgment against all three plaintiffs in a Bronx auto case with a 4-page decision dated July 17, 2012.

Defendant was the operator of the vehicle [Read News]

Maeglin presents on Personal Lines Exclusions

Tom Maeglin gave a discussion entitled “Exclusions in Personal Lines Insurance: Application of Controlled Substances, Fuel Systems, and Fungi Exclusions” as part of the Advanced Insurance [Read News]

Gorelick speaks at NYSBA event

Mike Gorelick presented at the New York State Bar Association continuing legal education program on “The Examination Before Trial – Honing Your Deposition Skills” at the New Yorker Hotel [Read News]

Court agrees that plaintiffs could not show "serious injury": grants summary judgment to defendant in no-fault case

Valentin, et al. v. Santos, Supreme Court, Bronx County, Index No. 25278/03
In a five-page Decision and Order, dated March 26, 2012, the Honorable Ben R. Barbato dismissed the Complaint of four (4) plaintiffs against the defendant driver. The Court held that the objectively [Read News]

Auto collision plaintiff discontinues voluntarily on courthouse steps

Francis Parra v. J&C Beverage Corporation and Cesar Brioso, Supreme Court, New York County, Index No. 105172/09
An aggressive defense won the day in a motor vehicle collision case defended by AGF&J Associate Dennis J. Monaco. AGF&J maintained the hardline position that plaintiff’s injuries were insufficient [Read News]

Scooter operator’s case derailed by her 50H and deposition testimony

Reyes v. Roussos, et al., Supreme Court, Bronx County, Index No. 350352/08
Bronx County Supreme Court Justice Larry S. Schachner granted summary judgment to AGF&J client/defendant Victor Roussos, dismissing the personal complaint against him in its entirety. Plaintiff alleged [Read News]

Summary jury trial ends in defense verdict for Bronx building owner

Ramos v. DuPont Realty, LLC, Supreme Court, Bronx County, Index No. 300726/07
Following a summary jury trial in Supreme Court, Bronx County, before the Honorable Ben A. Barbato, a Bronx jury rendered a defense verdict in favor of client, DuPont Realty, LLC.

Plaintiff alleged [Read News]

Verdict in diamond case affirmed

Hanover Insurance Company a/s/o Louis Glick & Company v. David Andrew Krivine and Ofer Mimouni, Appellate Division, First Department, April 3, 2012
The Appellate Division, First Department, unanimously affirmed a jury verdict in favor of AGF&J’s client, Hanover Insurance Company. The case involved ownership of a diamond that had been reported [Read News]

Bronx jury delivers unanimous defense verdict in favor of automobile owners

Belkis Bejaran v. Lourdes Perez and Maria Perez, Supreme Court, Bronx County, February 16, 2012
Following a two-day summary jury trial in Supreme Court, Bronx County, before the Honorable Yvonne Gonzales, AGF&J obtained a unanimous defense verdict on behalf of clients, Maria Perez and Lourdes Perez.

The [Read News]

All three plaintiffs’ claims dismissed via summary judgment in auto case: Court finds no “serious injury” to meet “no-fault” threshold

Claudia P. Jimenez, individually and as Parent of Harold Serrano, an infant over the age of 14 years and Maria C. Rodriguez v. Natalia Gubinski and Peter Gubinski, 09-CV-5645 (S.D.N.Y. 2012)
On January 30, 2012, United States Magistrate Judge Frank Maas issued a 26-page Memorandum Decision and Order granting summary judgment in favor of the AGF&J clients, holding that the objectively documented [Read News]

Reservation of right to reenter premises alone not sufficient to charge landlord with liability

Cano v. Ahead Realty, Corp., Supreme Court, Queens County, No. 20467/2008, May 9, 2011
Justice Robert L. Nahman granted summary judgment to a defendant landlord in a bodily injury action involving a fall on an allegedly wet and worn staircase. Plaintiff, a bartender’s assistant, [Read News]

Mark Ian Binsky, Esq. joins AGF&J

AGF&J welcomes Mark Ian Binsky who joins the firm as counsel, effective January 17, 2012. Binsky brings a wealth of experience in the field of fire and property insurance law, from his twenty-five years [Read News]

Appellate Division affirms summary judgment order: Finds Signed Statement in Proof of Loss does not create new agreement or toll limitations period

1840 Concourse Associates LP v. Praetorian Insurance Company f/k/a Insurance Corporation of Hannover, 2011 N.Y. Slip Op 08468 (1st Dep’t November 22, 2011)
A unanimous 5-Judge panel affirmed the Order and Decision of Justice James A. Yates of Supreme Court, New York County which held that plaintiff’s claim for replacement cost holdback under defendant’s [Read News]

Gorelick Honored

Founding Member Michael E. Gorelick was honored as an Insurance Coverage Super Lawyer in the 2011 New York Metro issue of Super Lawyers, published by Thomson Reuters. Super Lawyers are selected “using [Read News]

Summary judgment for defendant restaurant operator in “seam” and “groove” case; Tenant had no duty to maintain or repair sidewalk abutting leasehold premises

Phyllis Horsely v. R.S.M Realty Company, R.S.M. Realty Corp., Robin Realty, LLC, 1465 Third Avenue, LLC, 1465 Third Avenue Restaurant Corp., George A. Bowman, Inc. and Arriba Arriba Mexican Restaurant
In an extensive Memorandum Decision of June 29, 2011, Justice Paul Wooten granted summary judgment in favor of AGF&J’s client, a commercial tenant, dismissing all claims and cross-claims against [Read News]

Dog does not bite man; Plaintiff’s attorney discontinues case against AGF&J client upon consideration of its summary judgment motion

Stuart Banschick v. Deborah Holmes and Dominick Mucci, Supreme Court, Nassau County
Motion papers submitted on behalf of the “dog bite” defendant were so devastating that the plaintiff soon dropped the lawsuit, without venturing opposition.

The action involved a [Read News]

Court rejects investor’s suit against insurer of debtor: Second mortgagee’s complaint for breach of contract against insurer fails based upon documentary evidence

Edge Capital IV, LLC v. USAA Casualty Insurance Company, Supreme Court, Nassau County, April 6, 2011
In a Short Form Order, dated April 6, 2011, the Honorable Thomas Adams, AJSC, dismissed a breach of contract Complaint against the defendant insurer based upon undisputed documentary evidence. AGF&J [Read News]

Jewish Lawyers Guild Honors Judges

Member Glenn A. Jacobson, as President of the Jewish Lawyers Guild, hosted the thirty-fifth annual Jewish Lawyers Guild Annual Dinner, held on March 31st at the New York Hilton. At the event, attended [Read News]

Appellate Division affirms Summary Judgment in favor of defendant employers of plaintiff’s assailant/boyfriend

Maldonado v. Hunts Point Cooperative Market, Inc., et al., Supreme Court Appellate Division, First Department, March 10, 2011
In an appeal of an Order granting Summary Judgment to AGF&J clients, the Appellate Division, First Department, unanimously affirmed the lower court’s decision, previously reported here on June 29, [Read News]

Slipping on the Ritz: Court finds bar operator had no actual or constructive notice of alleged “dangerous condition” on stairs

Virgil Alessi v. G-Squared R.E., Inc., et al., Supreme Court, New York County, March 2, 2011
Dismissing a slip-and-fall Complaint by a patron of the Ritz Bar & Lounge against its operators, Justice Milton A. Tingling recently granted AGF&J clients’ Motion for Summary Judgment. Plaintiff [Read News]

Jury Renders Defense Verdict in Bar Fight Case: Patron’s Injuries Not Caused by Restaurant’s Service of Alcohol

Jules v. Polny Restaurant Corp. d/b/a Sophie’s and Brandt Collins, Supreme Court, Kings County, No. 32067/07, January 14, 2001
AGF&J member Irwin D. Miller recently obtained a defense verdict in a personal injury action arising out of an altercation between two patrons of a defendant restaurant.

The client ejected the [Read News]

Plaintiff's case does not hinge on rusty screws

Modesta Brignoni v. 601 W. 162 Associates, LP, Supreme Court, New York County January 7, 2011
In a premises liability case, involving a plaintiff who fell through a cellar door that was located on the floor of a store in the defendant’s building, AGF&J associate Bridget Q. Choi won summary [Read News]

Magistrate thwarts Landlord’s attempt to pass through liability for own negligence; ambiguity renders indemnification agreement unenforceable

James Shea v. Royal Enterprises, Inc. and 9th Street Ventures, Ltd., United States District Court, Southern District of New York, January 6, 2011
In a personal injury action raising issues of contractual and statutory interpretation, AGF&J member Michael Gorelick and associate Jessica Napoli recently defeated the motion for summary judgment made [Read News]

AGF&J Rings in New Year with Unanimous Defense Verdict

Melagros Roman v. Brandi Corp. d/b/a El Viejo Yaya Restaurant, Supreme Court, Queens County, January 6, 2011
AGF&J is pleased to report that 2011 has begun successfully. On January 6, 2011, member Glenn Jacobson, assisted by associate Jessica Napoli, obtained a unanimous defense verdict in the Supreme Court, [Read News]

Unspecified “insurance coverage issues” do not explain complete cessation of treatment for allegedly permanent injuries

Recharde Hospedales v. “John Doe” a/k/a Danilo G. Perdomo, Supreme Court, Appellate Division, First Department, December 14, 2010
The Appellate Division of the New York Supreme Court affirmed a Bronx Supreme Court decision granting summary judgment against a plaintiff who had allegedly been injured by the defendant automobile driver. [Read News]

Workers Compensation Bar extends to non-employer building owner in Labor Law action by superintendent

Carlos Vasquez v. 301 West 111 Owners LLP and 557-561 West 149 LLC and 557 West 149 Corporation, Supreme Court, New York County, October 27, 2010
In a “scaffold law” action brought by an apartment building superintendent against the building owner, Justice Paul Wooten granted the owner’s motion for summary judgment, based upon [Read News]

Proximate cause of plaintiff’s damages was intervening and superseding conduct of successor counsel; summary judgment granted to malpractice defendant

Jay Swatzburg v. John Golieb, Esq., Supreme Court, New York County, November 4, 2010
Attorneys retained by transactional counsel solely to ghost write a memorandum of law in opposition to a motion to dismiss a petition for dissolution of a corporation could not be liable to the petitioner [Read News]

Court dismisses claims for declaratory judgment and action for monies had and received against law firm; plaintiff lacked standing and failed to state cause of action

U.S.A. Design, Inc. v. Joseph Sitt, et al., Supreme Court, NewYork County, October 27, 2010
In an action arising from a real estate investment, plaintiffs’ claims against the defendant law firm to recover the investment vehicle were dismissed for lack of standing and failure to state a [Read News]

Fiduciary duty, negligence and accounting causes of action dismissed in mortgage fraud action

Federal Deposit Insurance Corporation, as Receiver for AmTrust Bank v. The Mortgage Zone, Inc., et al., United States District Court Eastern District of New York, October 12, 2010
AGF&J member Barry Jacobs and associate Shari Sckolnick obtained an order dismissing claims against an agent of a title insurance company in a wide-ranging mortgage fraud action before United States District [Read News]

Jury returns diamond to insurer who paid for loss

Hanover Insurance Company a/s/o Louis Glick & Company v. David Andrew Krivine and Ofer Mimouni, Supreme Court New York County, August 11, 2010
Following a seven-day trial, a jury returned a verdict in favor of AGF&J client Hanover Insurance Company, awarding it ownership of a diamond that had been reported lost by a policy holder. The verdict [Read News]

Bronx Court finds that pile driving company owed no duty of care in construction-related personal injury action

Luis Ramos v. Michael Stern, Macro Enterprises LTD., Champ Construction Corp., New York Sand & Stone, Supreme Court Bronx County, July 7, 2010
AGF&J associate Bridget Quinn obtained summary judgment on behalf of the defendant pile driving company on the ground that it owed no duty of care. Plaintiff had alleged that he was injured when the hi-lo [Read News]

Findings of defense medical experts show injuries not causally related to motor vehicle accident

Marcos Garcia v. Knight Transportation and Richard J. LaPlante, Jr., Supreme Court Bronx County, July 15. 2010
AGF&J member Glenn A. Jacobson and associate James E. Kimmel recently won a motion for summary judgment before Judge Lucindo Suarez of the Supreme Court, Bronx County. The Court granted summary judgment [Read News]

Documents establishing conclusion of attorney-client relationship show Complaint is time-barred; defendants proved they “aggressively pursued plaintiff’s claims”

Supreme Court, New York County, July 1, 2010
A motion for summary judgment was granted in favor of AGF&J’s client, dismissing plaintiff’s legal malpractice complaint in its entirety. Barry Jacobs and associate Shari Sckolnick showed [Read News]

Employer not liable to girlfriend of shooter/employee where there was no showing of duty, proximate cause

Maldonado v. Hunts Point Cooperative, Supreme Court, Bronx County, June 29, 2010
The Bronx County Supreme Court found in favor of AGF&J’s client in a negligent hiring, supervision, training and entrustment case, dismissing plaintiffs' claims on motion for summary judgment. [Read News]

AGF&J obtains summary judgment in favor of defendant tenant in trip-and-fall case

Kessler v. Chelsea Papaya, Inc. and 23rd West Associates, Inc., Supreme Court, New York County, June 22, 2010
AGF&J's Jessica Napoli won summary judgment on behalf of the client, a commercial tenant, in front of whose premises plaintiff allegedly was injured. The Court agreed that the tenant did not have a duty [Read News]

Clear victory in sidewalk shoveling case

Mazyck v. 1 800 Plan, LLC and Bergen Homes Condominium, Supreme Court, Kings County, June 14, 2010
In an action defended by AGF&J’s Glenn Jacobson and associate Jessica Napoli, the Court granted building owner’s motion for summary judgment dismissing the slip-and-fall negligence complaint. [Read News]

Plaintiff concedes the case upon hearing AGF&J present oral argument on behalf of defendant law firm and partner

Castro v. Thompson et al., Supreme Court, New York County, June 3, 2010
In a dramatic turn of events, Barry Jacobs and associate Shari Sckolnick obtained dismissal of a legal malpractice claims against the defendant law firm. An underlying divorce action had involved the [Read News]

Would-be class action plaintiffs lacked privity, missed statute of limitations, and could not show proximate cause; Court grants summary judgment for class action firm

Bridgitte Decker, et al. v. Nagel Rice, LLC, et al., United States District Court, Southern District of New York, May 28, 2010
Barry Jacobs and associate Shari Sckolnick won a dismissal of all claims against the client law firm, brought by a group of individuals who had survived an Austrian ski train fire in 2000. The survivors, [Read News]

Beautiful decision in ugly case: negligent hiring and supervision and Dram Shop claims dismissed

Hendrix v. Jinx-Proof LLC, et al., Supreme Court, New York County, April 30, 2010
Associate Jessica Napoli obtained partial summary judgment on behalf of the client bar owner in a personal injury action brought by a patron. Plaintiff claimed that as closing time approached at Beauty [Read News]