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DIGEST OF INSURANCE LAW NEW YORK

London Fischer LLP New York, New York ________________________

CIVIL JUDICIAL SYSTEM Courts of Original Jurisdiction In New York State all civil courts are governed by the Civil Practice Law & Rules. All New York courts have limited jurisdiction and courts are restricted in the type of case a court may entertain. The Supreme Court of the State of New York is New York State's only court of "general" jurisdiction. The supreme courts have almost all of the jurisdiction the State of New York can confer. The supreme courts lack original jurisdiction over: 1) cases for which exclusive jurisdiction is conferred by Congress to federal courts; and 2) lawsuits against the State of New York, which the Court of Claims maintains sole jurisdiction. New York has 62 counties and each county has one supreme court. The supreme courts have concurrent jurisdiction with many other New York courts, except the two exceptions identified above. New York City has five boroughs and each borough has a Civil Court for the City of New York. The jurisdiction of the civil courts is limited to disputes of $25,000 or less. However, courts of general and unlimited jurisdictional amount, such as the supreme courts can transfer a case to a civil court despite the dispute exceeding the civil court's $25,000 jurisdictional limit. In transfer cases the civil court judge or jury can award judgments that exceed $25,000. Two district courts exist in the State of New York, one for Nassau County and the other for Suffolk County. It has civil jurisdiction in money and replevin actions up to a $15,000 jurisdictional limit. There is a surrogate court in each county of the state. The surrogate court handles all matters concerning a decedent's estate but the supreme courts have concurrent jurisdiction. A family court exists in each county of the state. Family court jurisdiction includes almost the complete spectrum of family matters. Family courts do not handle

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matrimonial actions such as divorce, annulment or separation. The supreme courts handle matrimonial matters. The Court of Claims entertains disputes involving the State of New York. A judge and not a jury resolve disputes in the court of claims. Appellate Courts Appellate Term. The Appellate Term exists solely in the City of New York to resolve appeals from the Civil Courts of City of New York and under special circumstances to resolve disputes pursuant to Orders of the Appellate Division. The Appellate Division resolves appeals from the Appellate Term decisions. Appellate Division. New York is divided into four judicial departments numbered First through Fourth. Each department contains a Supreme Court of the State of New York, Appellate Division court which is the principal intermediate appellate court of New York. Appeals may be taken to Appellate Division as matter of right from supreme courts and other courts of original and minor appellate jurisdiction except for the Civil Courts for the City of New York. Appeals may also be taken from Appellate Term by permission of justices of either court. Court of Appeals. This is New York's highest appellate level court for all matters. It is composed of a Chief Judge and six associate judges. Court of Appeals decisions are final except in cases involving the United States Constitution. This Court reviews only issues of law.

LAW

Abbreviations

A.D. ­ Appellate Division Reports. A.D.2d ­ Appellate Division Reports, Second Series. A.D.3d ­ Appellate Division Reports, Third Series. CPLR ­ Civil Practice Law and Rules. E.P.T.L. ­ Estate Powers and Trust Laws. F. Supp. ­ Federal Supplement. F. Supp. 2d ­ Federal Supplement Second Series. F.2d ­ Federal Reporter, Second Series.

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F.3d ­ Federal Reporter, Third Series. Ins. Law ­ Insurance Law. Misc. ­ Miscellaneous Reports. Misc. 2d ­ Miscellaneous Reports, Second Series. N.E. ­ North Eastern Reporter. N.E.2d ­ North Eastern Reporter, Second Series. N.Y. or N.Y.2d or Ct. App. ­ New York Court of Appeals. Highest State Court. N.Y.S. ­ New York Supplement. N.Y.S.2d ­ New York Supplement, Second Series. N.Y. Gen. Oblig. Law ­ New York General Obligations Law. N.Y. Transp. Law ­ New York Transportation Law. N.Y. Veh. & Traf. Law ­ New York Vehicle and Traffic Law. N.Y. Workers' Comp. Law ­ Workers' Compensation Law. P.J.I. ­ Pattern Jury Instructions (By Association of Superior Court Justices). U.C.C. ­ Uniform Commercial Code. U.S.C.A. ­ United States Code Annotated. Statutory references, unless otherwise indicated, are to Insurance Law and amendments thereof. ________________________ ACCIDENT AND HEALTH INSURANCE See "DISABILITY." General: "Unlike ordinary life insurance, which generally provides coverage simply for death, accidental death insurance pays only if the death of the insured was accidental." Svensson v. Securian Life Insurance Company, 706 F. Supp2d 521 (S.D.N.Y. 2010). The insured must have "died as the result of an accidental injury." Id. Accidental Death Policies typically state that "death by accidental injury" means that death "results directly and independently of all other causes from an accidental drowning or from an accidental injury which was unintended, unexpected, and unforeseen." and that that the death "must occur within 90 days after the date of injury." Id. Accidental Death Policies also typically provide that "in no event" will the insurer pay benefits if death "results from" from "bodily or mental infirmity, illness, or disease," and "infection, other than infection occurring simultaneously with, and as a result of, the accidental injury." Id. The phrase "accident" should be given its ordinary meaning as understood by the "average person." Barnes v. American International Life Assurance Co of New York, 681 F. Supp. 2d 513 (S.D.N.Y. 2010). Accidental Death. The focus of whether a death was accidental is on whether the casualty, although unexpected, was " catastrophic or extraordinary." Michael

v. City of Buffalo, 85 N.Y.2d 754, 651 N.E.2d 1272 (1995). Disease Induced by Accident. No statutory definition. Following cases interpret "Disease Induced by Accident": Under policy excluding liability for death caused wholly or partly by disease exclusion applied to prevent recovery where insured's death was caused by "[t]hrombosis of the coronary artery and partial asphyxia due to [inability] to replace the endotracheal tube." Pawlik v. Stonebridge Life, 21 A.D.3d 1283, 802 N.Y.S.2d 575 (4th Dep't 2005). However, recovery was permitted for death by peritonitis from dormant ulcer ruptured by blow in abdomen while lifting milk can. Silverstein v. Metropolitan Life Ins. Co., 254 N.Y. 81, 171 N.E. 914 (1930). Death from infection caused by contact with hides containing "bacillus anthrax" held not induced by accident. Bacon v. U.S. Mut. Acc. Ass'n, 123 N.Y. 304, 25 N.E. 399 (1890). Death from gangrene caused by fall held accident. Mulvihill v. Commercial Cas. Ins. Co., 221 A.D. 494, 224 N.Y.S. 644 (1927), aff'd, 248 N.Y. 524, 162 N.E. 510 (1928). No recovery for disability caused by prostatitis, although only secondary infection from throat trouble, under policy excepting disability from disease of generative organs. Bartallotte v. Commercial Cas. Ins. Co., 163 N.Y.S. 95 (N.Y. App. Term 1917). Septic poisoning resulting from use of hypodermic needle by unskilled person, not voluntary exposure to unnecessary danger. Townsend v. Commercial Travelers' Mut. Acc. Ass'n of Am., 231 N.Y. 148, 131 N.E. 871 (1921). Policy insured "against disability or death resulting directly and independently...from bodily injuries sustained through external, violent and accidental means." Insured, man 70 years old, suffered from chronic nephritis and other serious chronic conditions. Died 20 days after automobile accident. Held burden imposed upon plaintiff to show death caused by accident and not by disease. An "insurer may be relieved of liability if an idiosyncratic condition of mind or body predisposing insured to injury is so acute as to constitute a disease." McMartin v. Fidelity & Cas. Co., 264 N.Y. 220, 190 N.E. 414 (1934). Death following underlying cirrhosis of liver at time insured fell down stairs served to preclude coverage even though insured died within 48 hours of fall given uncontroverted medical evidence that the cirrhosis of liver was disease at time of accident contributed to her insured's death. Bozic v. JC Penny Life Ins. Co., 295 A.D.2d 460, 744 N.Y.S.2d 189 (2d Dep't' 2002). Death following blood poisoning aggravating heart condition held accidental. Eisser v. Commercial Travelers' Mut. Acc. Ass'n of Am., 272 N.Y. 581, 4 N.E.2d 813 (1936). Tubercle bacillus infection detected after accident did not relieve insurer from liability. Bellanca v. Travelers

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Ins. Co., 160 Misc. 795, 290 N.Y.S. 664 (N.Y. Sup. Ct. 1936). Double Indemnity. New York policies generally provide for double indemnity in case of injury while in or on public conveyance. Taxicab held public conveyance. Anderson v. Fidelity & Cas. Co., 228 N.Y. 475, 127 N.E. 584 (1920). Subway platform not public conveyance. Weil v. Globe Indem. Co., 179 A.D. 166, 166 N.Y.S. 225 (1st Dep't 1917). Injuries sustained on unenclosed platform of railroad car, not "in any passenger conveyance." Von Bokkelen v. Travelers' Ins. Co. of Hartford, 34 A.D. 399, 54 N.Y.S. 307 (1898), aff'd, 167 N.Y. 590, 60 N.E. 1121 (1901). Insured in hospital for chronic alcoholism fell, fractured skull, died; covered. Moran v. Massachusetts Mut. Life Ins. Co., 29 N.Y.S.2d 33 (N.Y. App. Term 1941), aff'd, 263 A.D. 936, 33 N.Y.S.2d 108 (1st Dep't 1942). Double indemnity recoverable if death resulted from accident, regardless of presence of disease, if disease did not contribute to death. Escoe v. Metropolitan Life Ins. Co., 178 Misc. 698, 35 N.Y.S.2d 833 (N.Y. Sup. Ct. 1942). Proof showing death due to disease, not corrected by subsequent proof that death was caused by accident or accidental means, precludes recovery of double indemnity. Wachtel v. Equitable Life Assur. Soc. of U.S., 266 N.Y. 345, 194 N.E. 850 (1935). No recovery by insured under hospital policy which excluded "hospital service provided for under any compensation law," though compensation carrier was reimbursed out of proceeds of insured's settlement with third party tortfeasor. Moeller v. Assoc. Hosp. Serv., 304 N.Y. 73, 106 N.E.2d 16 (1952). Where insured misrepresented syphilis and arthritic condition treatment in application for life policy, action for double indemnity was properly dismissed and policy was rescinded. Greene v. United Mut. Life Ins. Co., 38 Misc. 2d 728, 238 N.Y.S.2d 809 (Bronx. Sup. Ct. 1963). Notice and Proof of Loss. Failure to furnish within required time, not excused although insured not aware of injury until expiration of time. MacKay v. Metropolitan Life Ins. Co., 281 N.Y. 42, 22 N.E.2d 154 (1939). Renewal. Constitutes new contract and commences new period for which disability benefits payable. Jacobson v. Equitable Life Assur. Soc. of U.S., 176 Misc. 879, 29 N.Y.S.2d 254 (N.Y. City Ct. 1941), rev'd on other grounds, 266 A.D. 510 (1st Dep't 1943); Ginsburg v. Equitable Life Assur. Soc., 254 A.D. 445, 5 N.Y.S.2d 16 (1st Dep't 1938), appeal denied, 279 N.Y. 810, 18 N.E.2d 46 (1938).

ACCIDENTAL MEANS In order to determine whether an occurrence is an "accident" within the scope of an insurance policy the court must look at the casualty from the insured's viewpoint and determine if the occurrence was unexpected, unusual and unforeseen. Lachter v. Insurance Co. of N. Am., 145 A.D.2d 540, 536 N.Y.S.2d 93 (2d Dep't 1988); State Farm Mut. Ins. Co. v. Langan, 55 A.D.3d 281, 865 N.Y.S.2d 102 (2d Dep't 2008). When not defined in policy, "accident," should not be given a narrow, technical definition, but should be interpreted according to how it would be understood by the average person. State Farm Mut. Auto. Ins. Co. v. Langan, 16 N.Y.3d 349, 947 N.E.2d 124, 922 N.Y.S.2d 233 (2011). There are no statutes that govern whether an occurrence constitutes an "accidental means" within the scope of an insurance policy. However, the term "accident" as used in Retirement and Social Security Law § 63 has been construed by the Courts as "a `sudden, fortuitous mischance, unexpected, out of the ordinary and injurious in impact.'" Cadiz v. McCall, 236 A.D.2d 766, 654 N.Y.S.2d 48 (3d Dep't 1997), quoting, Matter of Lichtenstein v. Bd. of Trustees, 57 N.Y.2d 1010, 1012 (1982), quoting Johnson Corp. v. Indemnity Ins. Co., 6 A.D.2d 97, 100 (1st Dep't 1958) aff'd 7 N.Y.2d 222 (1959). Examples of occurrences that the Courts have held constitute "accidents" include the following: Fall where vertigo alleged. Larkin v. Interstate Cas. Co., 43 A.D. 365, 60 N.Y.S. 205 (2d Dep't 1899). Fall causing hemorrhage of brain. Bernard v. Commercial Travelers Mut. Acc. Ass'n of Am., 223 N.Y. 644, 119 N.E. 1031 (1918). Use of hypodermic needle causing septic poisoning. Townsend v. Commercial Travelers Mut. Acc. Ass'n of Am., 231 N.Y. 148, 131 N.E. 871 (1921). Streptococci following tooth extraction. Pardee v. Prudential Ins. Co. of Am., 171 Misc. 981, 14 N.Y.S.2d 736 (N.Y. City Ct. 1939). Infection from punctured wound causing inflammation of brain. Lewis v. Ocean Acc. & Guarantee Corp., 224 N.Y. 18, 120 N.E. 56 (1918). Sunstroke. Gallagher v. Fidelity & Cas. Co. of N.Y., 163 A.D. 556, 148 N.Y.S. 1016 (2d Dep't 1914). Overexertion from unexpected weight. Reynolds v. Equitable Acc. Ass'n, 1 N.Y.S. 738 (N.Y. Sup. Ct. 1888), aff'd, 121 N.Y. 649, 24 N.E. 1091 (1890). Patient asphyxiated by vomit while under ether. Burch v. Prudential Ins. Co. of Am., 250 A.D. 450, 294 N.Y.S. 458 (2d Dep't 1937). Monoxide poisoning. Parker v. Equitable Life Assur. Soc'y, 248 A.D. 803, 289 N.Y.S. 57 (3d Dep't 1936); Bolger v. Prudential Ins. Co. of Am., 250 A.D. 122, 293 N.Y.S. 554 (2d Dep't 1937). Death following sedative for insomnia. Meyer v. New York Life Ins. Co., 249 A.D. 243, 291 N.Y.S. 912 (2d Dep't 1936), mot. granted, 276 N.Y.

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557, 12 N.E.2d 573 (1937). Death from gangrene following fracture. MacNair v. Commercial Travelers Mut. Acc. Ass'n of Am., 275 N.Y. 630, 11 N.E.2d 791 (1937). Death from asphyxiation caused by vomit while intoxicated. Ash v. Mutual Life Ins. Co., 170 Misc. 227, 9 N.Y.S.2d 32 (N.Y. Sup. Ct. 1938), aff'd, 283 N.Y. 718, 28 N.E.2d 723 (1940). Hypersensitivity to novocaine. Adlerblum v. Metropolitan Life Ins. Co., 284 N.Y. 695, 30 N.E.2d 728 (1940). Death from hemorrhage following tonsillectomy. Garten v. Metropolitan Life Ins. Co., 287 N.Y. 738, 39 N.E.2d 940 (1942). Owner of garage overexerted himself trying to extricate cars. Schechter v. Equitable Life Assur. Soc'y, 275 A.D. 958, 89 N.Y.S.2d 654 (2d Dep't 1949). Insured driving through heavy snowstorm with wife and child accidentally went into ditch and died from overexertion trying to extricate car. Burr v. Commercial Travelers Mut. Acc. Ass'n, 295 N.Y. 294, 67 N.E.2d 248 (1946). The courts have held the following not to be caused by accidental means: Paralysis following fall, where pathological condition of vertebrae existed prior to the incident. Naseef v. Metropolitan Life Ins. Co., 230 A.D. 610, 245 N.Y.S. 430 (4th Dep't 1930). Septic peritonitis resulting from inflammation of stomach, caused by regular movements of the psoas muscle while riding bicycle. Appel v. Aetna Life Ins. Co., 86 A.D. 83, 83 N.Y.S.2d 238 (4th Dep't 1903), aff'd, 180 N.Y. 514, 72 N.E. 1139 (1904). Heart disease aggravated by injury. Smith v. Massachusetts Bonding & Ins. Co., 207 A.D. 682, 202 N.Y.S. 857 (2d Dep't 1924), aff'd, 241 N.Y. 558, 150 N.E. 554 (1925). Death by gas administered by dentist. Barnstead v. Commercial Travelers' Mut. Acc. Ass'n, 204 A.D. 473, 198 N.Y.S. 416 (1st Dep't 1923). Rupture sustained by mail clerk while lifting mail sacks. Fane v. National Ass'n Railway Mail Clerks, 197 A.D. 145, 188 N.Y.S. 222 (4th Dep't 1921). Resisting arrest. Manno v. Metropolitan Life Ins. Co., 139 Misc. 848, 249 N.Y.S. 471 (N.Y. City Ct. 1931); Fabian v. Prudential Ins. Co., 139 Misc. 640, 249 N.Y.S. 1 (N.Y. Sup. Ct. 1931). Peritonitis following operation for recurrent hernia. Ward v. Commercial Travelers Mut. Acc. Ass'n, 139 Misc. 178, 249 N.Y.S. 43 (N.Y. Sup. Ct. 1931). Amputation of leg due to electric baking treatment. Romanoff v. Commercial Travelers Mut. Acc. Ass'n, 243 A.D. 725, 277 N.Y.S. 291 (2d Dep't 1935). Death of construction foreman after foreman ruptured his aorta in attempt to prevent accident. Wilcox v. Mutual Life Ins. Co., 265 N.Y. 665, 193 N.E. 436 (1934). Monoxide poisoning. City Bank Farmers Trust Co. v. Equitable Life Assur. Soc'y, 272 N.Y. 448, 3 N.E.2d 863 (1936); Osburn v. Commercial Travelers Mut. Acc. Ass'n, 265 N.Y. 671, 193 N.E. 438 (1934). Abdominal hemorrhage caused by gymnastic vibrator. Gould v. Travelers Ins. Co., 244 A.D. 274, 279 N.Y.S. 892 (2d Dep't 1935), aff'd, 270

N.Y. 584, 1 N.E.2d 341 (1936). Death while under anesthetic. Mulholland v. Prudential Ins. Co., 155 Misc. 718, 280 N.Y.S. 322 (N.Y. City Ct. 1935). Death from sunstroke, not caused by means of which there is visible contusion or wound. Dupee v. Travelers Ins. Co., 253 A.D. 278, 2 N.Y.S.2d 62 (2d Dep't 1938), aff'd, 278 N.Y. 659, 16 N.E.2d 391 (1938). Death following acute alcoholism. Powley v. Equitable Life Assur. Soc'y, 257 A.D. 324, 12 N.Y.S.2d 864 (1st Dep't 1939), aff'd, 284 N.Y. 664, 30 N.E.2d 607 (1940). Death caused by blood poisoning resulting from infection, communicated to wound coincident with infliction, is covered by policy providing that insurance shall only apply to cases where injury is proximate and sole cause of disability or death. Martin v. Manufacturers' Acc. Indem. Co., 151 N.Y. 94, 45 N.E. 377 (1896). Overexertion, shoveling snow. Schecter v. Equitable Life Assur. Soc'y, 275 A.D. 958, 89 N.Y.S.2d 654 (2d Dep't 1949). In emergency. Burr v. Commercial Travelers Mut. Acc. Ass'n, 295 N.Y. 294, 67 N.E.2d 248 (1946). ADJUSTERS Pursuant to N.Y. Ins. Law § 2101, the term "independent adjuster" "means any person, firm, association or corporation who, or which, for money, commission or any other thing of value, acts in this state on behalf of an insurer in the work of investigating and adjusting claims arising under insurance contracts issued by such insurer and who performs such duties required by such insurer as are incidental to such claims and also includes any person who for compensation or anything of value investigates and adjusts claims on behalf of any independent adjuster." N.Y. Ins. Law § 2101(g) identifies certain exceptions to this definition. License required for independent casualty adjuster. N.Y. Ins. Law § 2108. Pursuant to N.Y. Ins. Law § 2108(r) every two years licensed public adjusters must complete 15 credit hours of continuing education. The Superintendent of Insurance must approve the continuing education programs. As of July 2011 there are proposed legislative changes to N.Y. Ins. Law §2108. These changes have not yet been adopted. As a general rule, an insurance adjuster, acting as an agent of a disclosed insurer or other principal and whose actions were undertaken at the behest and direction of the insurer, cannot be held personally liable to an injured plaintiff. Ryan v. Preferred Mutual Insurance Company, 38 A.D.3d 1148, 834 N.Y.S.2d 338 (3d Dep't 2007). However, the adjuster may be liable if the adjuster made a material misrepresentation. Id. AGE See also "AUTOMOBILES"; "INFANTS"; "LIABILITY INSURANCE" and "NEGLIGENCE."

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Pursuant to CPLR §3403 a litigant who is at least 70 years old is entitled to a "special preference" in having the court entertain the trial before other trials. The basis for this principle is to allow a plaintiff the ability to have the case entertained and the plaintiff reap the benefits of the fruits of the victory at trial during the plaintiff's lifetime. Green v. Vogel, 144 A.D.2d 66, 537 N.Y.S.2d 180 (3d Dep't 1989); see also Peck v. Brookdale Hosp. Med. Center, 7 Misc. 3d 571, 787 N.Y.S.2d 859 (Kings County 2005). Children three years old or younger are deemed non sui juris as a matter of law and are deemed too young to be responsible for their actions. Conningham v. Anderson, 85 A.D.3d 1370, 925 N.Y.S.2d 693 (3d Dep't 2011); M.F. v. Delaney, 37 A.D.3d 1104, 830 N.Y.S.2d 412 (4th Dep't 2007). Litigants who are deemed non sui juris are incapable of being charged with assumption of risk or comparative negligence. Id. Pursuant to N.Y. Alcoholic Beverage Law § 65, a person must be at least 21 years old to purchase an alcoholic beverage. Statute prohibiting sale of alcoholic beverages to minors does not give rise to implied private right of action in favor of minor who has been injured because of voluntary consumption of beverages. Shih v. Big Flats Community, Inc., 73 N.Y.2d 629, 541 N.E.2d 18, 543 N.Y.S.2d 18 (1989). Children reach the age of majority at 18 years old. Family Ct. Act § 19[c]; § 651[a]. Parents, however, are responsible for supporting their children until the child is 21 years old. Family Ct. Act § 413[1][a]. AGENTS AND BROKERS Agents and brokers license requirements, See N.Y. Ins. Law §§2103 and 2104. Insurance consultants' license. See N.Y. Ins. Law §2107. Excess lines brokers' license. See N.Y. Ins. Law §2105. Although New York retains the common law distinction between insurance agents and insurance brokers, the term insurance producer is sometimes employed which is defined under N.Y. Ins. Law §2101(k) to include "an insurance agent, insurance broker, reinsurance intermediary, excess lines broker, or any other person required to be licensed under the laws of this state to sell, solicit or negotiate insurance." An "insurance agent" typically refers to "any authorized or acknowledged agent of an insurer whereas an "insurance broker" typically refers to "any person, firm, association or corporation who or which for any compensation, commission or other thing of value acts or aids in any manner in soliciting, negotiating or selling, any insurance or annuity contract or in placing risks or taking out insurance, on behalf of an insured..." Com-

pare N.Y. Ins. Law § 2101(a) with N.Y. Ins. Law § 2101(c). Typically an "insurance agent acts as an agent of an insurance carrier while an insurance broker acts as a representative of the insured." American Motorists Ins. Co. v. Salvatore, 102 A.D.2d 342, 476 N.Y.S.2d 897 (1st Dep't 1984). The determination of whether a person is an agent or broker is typically a question of fact. Jet Setting Service Corp. v. Toomey, 91 A.D.2d 431, 459 N.Y.S.2d 751 (1st Dep't 1983). The precise scope of the relationship can be amorphous at times creating a "dual agency status" Cuomo v. Wells Fargo Ins. Services, Inc., 16 N.Y.3d 166, 944 N.E.2d 1120 (2011) (While a broker is typically the agent of the insured, the broker customarily looks to the insurer and not the insured for compensation. The broker is sometimes the insurer's agent also, for example, when collecting premiums). An insurance agent or broker has a common-law duty to obtain requested coverage for a client within a reasonable amount of time, or to inform the client of the inability to do so. Cuomo, supra. However, they have no continuing duty to advise, guide or direct a client to obtain additional coverage. Id. See also Axis Const. Corp. v. O'Brien Agency, Inc., 87 A.D.3d 1092, 929 N.Y.S.2d 869 (2d Dep't 2011); Hoffend & Sons, Inc. v. Rose & Kiernan, Inc., 7 N.Y.3d 152, 851 N.E.2d 1149 (2006). Exceptional and particularized situations may arise where through their conduct or by express or implied contract with customers and clients an insurance agent or broker may assume or acquire duties in addition to those fixed at common law and the determination of such is governed by particular relationship between parties and is best determined on case-by-case basis. Murphy v. Kuhn, 90 N.Y.2d 266, 682 N.E.2d 972 (1997) (general rule is that no special relationship exists between an insurance agent or broker and the insured). The Court of Appeals identified three circumstances that may give rise to a special relationship: 1) where the agent or broker receives compensation for consultation apart from payment of premiums, 2) interaction between the agent and the insured regarding specific questions of coverage, and 3) an extended period of dealings. See Murphy, supra. Insurance agents brokers are not professionals within meaning of three-year statute of limitations on tort and contract actions for malpractice other than medical, dental or podiatric and as such, actions against insurance agents and brokers are not governed not by CPLR §214(6), but by the limitations periods applicable to negligence actions (CPLR §214[4]) and breach of contract actions (CPLR §213[2]). Chase Scientific Research, Inc. v. NIA Group, Inc., 96 N.Y.2d 20, 749 N.E.2d 161 (2001); Eastman Kodak Co. v. Prometheus Funding

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Corp., 283 A.D.2d 216, 724 N.Y.S.2d 736 (1st Dep't 2001). An insurance broker does not have a common-law fiduciary duty to disclose to its customers "incentive" arrangements that the broker has entered into with insurance companies. Cuomo, supra. However, pursuant to regulations promulgated by the Department of Insurance, an insurance agent or broker is required to disclosure to a purchaser of insurance, inter alia, that the broker "will receive compensation from the selling insurer based in whole or in part on the insurance contract" that the broker sells and to advise the purchaser that they can ask and obtain additional information concerning the broker's compensation. 11 NYCRR 30.1, et. seq. (effective Jan 1, 2011). For Whom. Whether agent acts for insured or insurer is question of fact in each case but as general rule broker is agent of insured. Jet Setting Service Corp. v. Toomey, 91 A.D.2d 431, 459 N.Y.S.2d 751 (1st Dep't 1983); Salzano v. Marine Ins. Co., 173 A.D. 275, 159 N.Y.S. 277 (4th Dep't 1916). In some cases, a broker may be an agent for insurer (e.g., delivering policy and collecting premiums). Ins. Law § 2121; Globe Indem. Co. v. Gilligan, 73 Misc. 2d 27, 341 N.Y.S.2d 18 (N.Y. Dist. Ct. 1973); C. A. Smith Lumber Co. v. Colonial Assur. Co., 175 A.D. 975, 161 N.Y.S. 1120 (1st Dep't 1916). For facts, see C.A. Smith Lumber v. Colonial Assur. Co., 172 A.D. 149, 158 N.Y.S. 198 (1st Dep't 1916). Husband of mortgagee acting as agent for mortgagor liable for negligent procurement of policy, void as to mortgagor. Barile v. Wright, 256 N.Y. 1, 175 N.E. 351 (1931). Agent of insurer, authorized by insured to keep premises insured, is agent of insured with respect to cancellation. Rose Inn Corp. v. National Union Fire Ins. Co., 258 N.Y. 51, 179 N.E. 256 (1932). Ordinary duty of broker to insured is to procure policy which provides coverage desired. Hermann v. Niagara Fire Ins. Co., 100 N.Y. 411, 3 N.E. 341 (1885). Though broker as alleged may have known about accident and possibility of claim against insured, suit by insured for failure of broker to give written notice of accident to insurer dismissed. Cassidy v. Dauch, 145 N.Y.S.2d 485 (N.Y. Sup. Ct. 1955). Knowledge of Agent. Imputed to insurer in absence of warranty by insured. Short v. Home Ins. Co., 90 N.Y. 16 (1882); Bennett v. North British & Mercantile Ins. Co., 81 N.Y. 273 (1880). Rule contra in case breach of warranty contained in application. Woodruff v. Imperial Fire Ins. Co., 83 N.Y. 133 (1880); Van Schoick v. Niagara Fire Ins. Co., 68 N.Y. 434 (1877). Agent's knowledge of falsity of answer in application does not necessarily prevent defense of breach of warranty. Fisher v. U.S. Cas. Co., 138 Misc. 307, 245 N.Y.S. 406

(N.Y. Sup. Ct. 1930), aff'd, 238 A.D. 781, 262 N.Y.S. 886 (1st Dep't 1933). General agent may appoint subagents, whose knowledge, acquired in ordinary course of business, binds insurer. Barone v. Aetna Life Ins. Co., 260 N.Y. 410, 183 N.E. 900 (1933). Oral notice to agent did not relieve insured from giving written notice required by policy. Nothhelfer v. American Surety Co., 277 A.D. 1009, 100 N.Y.S.2d 331 (2d Dep't 1950). Knowledge of agent not imputed to insurer where agent has community of interest with insured. Otsego Aviation Serv. v. Glens Falls Ins. Co., 277 A.D. 612, 102 N.Y.S.2d 344 (3d Dep't 1951). Liquidation of Insolvent Company. Broker's obligation regarding premiums collected by him but not paid to company or liquidator. Bohlinger v. Zanger, 306 N.Y. 228, 117 N.E.2d 338 (1954). ARBITRATION See CPLR §§7501 thru 7503 addressing the procedural issues for arbitration for purposes of litigation in the New York State courts. Pursuant to CPLR §7503, a party may commence arbitration proceedings by serving a notice of intention to arbitrate or a demand for arbitration that specifies the agreement pursuant to which arbitration is sought and the name and address of the party serving the notice. Three ways to proceed: Notice of Intention to Arbitrate, Application to Compel Arbitration, Petition Court to Stay Arbitration. CPLR §7503. A Notice of Intention must state that "unless the party served applies to stay the arbitration within twenty days after such service he shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in court the bar of a limitation of time." Pursuant to CPLR §7503(c) a party has twenty days from service of the demand for arbitration to petition and move the court for an Order staying arbitration. See also Matter of Propulsora Ixtapa Sur, 211 A.D.2d 546, 621 N.Y.S.2d 569 (1st Dep't 1995); Matter of Allstate Ins. Co., 161 A.D.2d 424, 555 N.Y.S.2d 353 (1st Dep't 1990). The twenty day time limit to seek a stay of arbitration is not strictly adhered to when no agreement to arbitrate was actually entered into by the parties. Matarasso v. Cont'l Cas. Co., 56 N.Y.2d 264, 436 N.E.2d 1305 (1982). C.f. Fiveco, Inc. v. Haber, 11 N.Y.3d 140863, N.Y.S.2d 391 (2008) (time limitation did not apply where contracts at issue contained an arbitration provision that governs time) Submission to arbitration discontinues suit in the New York State Court system. Rivera v. Sales, 208 A.D.2d 514, 618 N.Y.S.2d 34 (2d Dep't 1994). Arbitration may be set aside by court, if award has no rational basis. The arbitration award will not be dis---- For Current Listings access www.ambest.com/legal----

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turbed unless the decision was arbitrary and capricious and not supported by any evidence. City School District of the City of New York v. McGrahm, Malone v. Board of Education for East Meadow Union Free School District, 93 A.D.3d 849, 941 N.Y.S.2d 213 (2d Dep't 2012); GEICO v. Sparrow, 66 A.D.2d 782, 410 N.Y.S.2d 657 (2d Dep't 1978). Statute of limitations for arbitration claims are typically the same as those statute of limitations that apply in court system on same type of claim. CPLR §7502 (b). Submission to arbitration discontinues suit. Rivera v. Sales, 208 A.D.2d 514, 618 N.Y.S.2d 34 (2d Dep't 1994). ASSIGNMENT See "FIRE INSURANCE"; "SUBROGATION." ATTORNEYS Insurance Defense. Casualty insurer has implied authority and may change defense attorneys if policy provides change of attorneys without consent of insured. Petition of Preferred Acc. Ins. Co., 273 A.D. 993, 78 N.Y.S.2d 674 (1st Dep't 1948). However, it is recommended that insurer request consent and seeks cooperation from insured. Conflict of interest between insured and insurer as to "character of act causing injury" or some causes of complaint outside policy coverage, insured should choose defense attorney and insurer reimburse fee. Prashker v. U.S. Guarantee Co., 1 N.Y.2d 584, 136 N.E.2d 871, 154 N.Y.S.2d 910 (1956). See also "LIABILITY INSURANCE." Lien. Charging lien applies to proceeds from litigation and may be enforced only to obtain reasonable value of attorney's services. Kaplan v. Reuss, 113 A.D.2d 184, 495 N.Y.S.2d 404 (2d Dep't 1985), aff'd, 68 N.Y.2d 693, 497 N.E.2d 671 (1986). Malpractice. Pursuant to CPLR §214(6) a legal malpractice action is governed by a three year statute of limitations. A legal malpractice claim accrues when all of the facts necessary to the cause of action have occurred and an injured party can obtain relief in court. McCoy v. Feinman, 99 N.Y.2d 295, 785 N.E.2d 714 (2002). The continuous treatment rule applied to medical malpractice actions has been extended to claims involving attorney malpractice and allegations of an attorney's failure to perform services in breach of contract. Zorn v. Gilbert, 8 N.Y.3d 933, 866 N.E.2d 1030 (2007). The application of the "continuous representation" doctrine is limited to situations in which the attorney who allegedly was responsible for the malpractice continues to represent the client on the matter that is the subject for the

alleged malpractice. Glamm v. Allen, 57 N.Y.2d 87, 439 N.E.2d 390 (1982). The statute of limitations on a claim for malpractice with respect to "continuous representation" begins to run when the attorney-client relationship terminates. Greene v. Greene, 56 N.Y.2d, 436 N.E.2d 496 (1982). A plaintiff in a legal malpractice lawsuit must prove that "but for" defendant's negligence plaintiff would have obtained a more favorable result in the underlying litigation or transaction or would not have sustained the claimed loss in the underlying litigation or transaction. Waggoner v. Caruso, 14 N.Y.3d, 929 N.E.2d 396, 903 N.Y.S.2d 333 (2010); Darby & Dary, P.C. v. VSI International, Inc., 95 N.Y.2d 308, 739 N.E.2d 744 (2000). Plaintiff in a legal malpractice lawsuit must prove that 1) the attorney's failure to exercise that degree of care, skill and diligence commonly possess by a member of the legal profession; 2) causation ("but for" standard); and 3) actual damages. Prudential Insurance Co. of America v. Dewey Ballentine, Bushby, Palmer & Wood, 170 A.D.2d 108, 573 N.Y.S.2d 981, affirmed, 80 N.Y.2d 377, 605 N.E.2d 318 (1992). AUTOMOBILES See Law Digest Tables. See also "DAMAGES"; "LIABILITY INSURANCE"; "NEGLIGENCE" and "NO-FAULT" Age. Minimum age eighteen years, except junior operator's license issued to person over sixteen. Junior operators are not permitted to drive in New York City and are only permitted to work or go to school in Nassau and Suffolk Counties. In all other counties, junior operators are permitted to drive between 5:00 am and 9:00 pm without restriction and between 9:00 pm and 5:00 am in order to go to work or school. N.Y. Veh. & Traf. Law § 501(d)(3). However, operation of a motor vehicle without a license is a misdemeanor Phass v. MacClenathen, 274 A.D. 535, 85 N.Y.S.2d 643 (3d Dep't 1948). Ambiguous Automobile Policy Limits. Policy set forth $100,000/$300,000 per accident is considered ambiguous and allows more than $100,000 to one plaintiff where two or more people are injured. Mostow v. State Farm Ins. Cos., 88 N.Y.2d 321, 668 N.E.2d 392 (1996). Bicyclists. Typically required to comply with N.Y. Veh. & Traf. Law § 1231; Trzepacz v. Jara, 11 A.D.3d 531, 782 N.Y.S.2d 852 (2d Dep't 2004). But see Secor v. Kohl, 67 A.D.2d 358, 415 N.Y.S.2d 434 (2d Dep't 1979) ("100 feet before turn continuous signal inapplicable to bicycles").

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Comparative Negligence. Statute effective September 1, 1975, Art. 14, CPLR §§ 1411-13, plaintiff's damages are diminished in proportion to amount of negligence attributable to plaintiff. The pure comparative statute applies to all suits for personal injury, wrongful death or property damage; whatever the legal theory, "Culpable Conduct" of the plaintiff is considered, not just negligent conduct. Flynn v. City of New York, 103 A.D.2d 98, 478 N.Y.S.2d 666 (2d Dep't 1984). Compulsory Coverage. N.Y. Veh. & Traf. Law § 341, owner registration requires insurance of at least $25,000 for bodily injury to one person and $50,000 for death, and for two or more in one accident, $50,000 bodily injury and $100,000 deaths, and $10,000 property damage, or post bond or financial security deposit. Owner operating vehicle or permitting vehicle operated without required financial security guilty of misdemeanor. N.Y. Veh. & Traf. Law § 319. Defective Brakes. Operator not negligent per se for defective brakes in absence of notice. Kalkin v. Marken, 87 N.Y.S.2d 839 (N.Y. Sup. Ct. 1949); Schaeffer v. Caldwell, 273 A.D. 263, 78 N.Y.S.2d 652 (4th Dep't 1948); Cohen v. Crimenti, 24 A.D.2d 587, 262 N.Y.S.2d 364 (2d Dep't 1965). Emergency. Defendant who creates emergency is not entitled to benefit from emergency situation law. Mead v. Marino, 205 A.D.2d 669, 613 N.Y.S.2d 650 (2d Dep't 1994); Boccaccio v. Longden, 61 A.D.2d 851, 401 N.Y.S.2d 924 (3d Dep't 1978). Brake failure. McAllister v. Adam Packing Corp., 66 A.D.2d 975, 412 N.Y.S.2d 50 (3d Dep't 1978). "Sudden Emergency Doctrine" defined. Bello v. Transit Authority of New York City, 12 A.D.3d 58, 783 N.Y.S.2d 648 (2d Dep't 2004); Malatesta v. Hopf, 163 A.D.2d 651, 557 N.Y.S.2d 994 (3d Dep't 1990); P.J.I. § 2:14. If a defendant is confronted with sudden and unexpected circumstances, with very little time to think and act, then there is no negligence if act is reasonable in an emergency situation. Caristo v. Sanzone, 96 N.Y.2d 172, 750 N.E.2d 36 (2001); P.J.I. § 2:14. "Graves Amendment." §49 U.S.C. 30106 preempts N.Y. Veh. & Traf. Law § 388 for actions commenced on or after August 10, 2005, against owners of motor vehicles engaged in the trade or business of renting or leasing motor vehicles. Hernandez v. Sanchez, 40 A.D.3d 446, 836 N.Y.S.2d 577 (1st Dep't 2007). The Graves Amendment is constitutional. Graham v. Dunkley and NILT, Inc., 50 A.D.3d 55, 852 N.Y.S.2d 169 (2d Dep't 2008), lv. denied, Graham v. Dunkley, 10 N.Y.3d 835, 889 N.E.2d 484 (2008). The term "engaged in the trade or business" extends to all owners of vehicles within the leasing structure. Gluck v. Negben and NILT, Inc., 72 A.D.3d 1023, 898 N.Y.S.2d 881 (2d Dep't 2010), lv.

denied Gluck v. Negben, 16 N.Y.3d 703, 944 N.E.2d 656 (2011). Guest Cases. No guest statute. Driver owes passenger duty of ordinary and reasonable care not to increase or create danger. Higgins v. Mason, 255 N.Y. 104, 174 N.E. 77 (1930). Guest statutes at place of accident not applied to New York residents who were transient to place of accident. Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279 (1963), on remand, 40 Misc. 2d 757, 243 N.Y.S.2d 715 (N.Y. Sup. Ct. 1963). Invitee takes car as he finds it, and no duty of inspection rests on owner and operator. Breasette v. Briscoe, 21 Misc. 2d 968, 197 N.Y.S.2d 866 (N.Y. Sup. Ct. 1960); Parker v. Helfert, 140 Misc. 905, 252 N.Y.S. 35 (N.Y. Sup. Ct. 1931). Host not liable for injury to or death of guest because of mechanical defect, unknown to him, even though defect might have been discovered upon inspection. Kemp v. Stephenson, 139 Misc. 38, 247 N.Y.S. 650 (N.Y. Mun. Ct. 1931); Higgins, 255 N.Y. at 110. Guest assumes risk of defect in automobile unknown to owner. Knapp v. Gould Auto Co., 252 A.D. 430, 299 N.Y.S. 688 (4th Dep't 1937). Husband and Wife. Automobile insurance policy does not provide coverage when a spouse sues spouse where injured spouse must prove liability of insured spouse. Ins. Law §3420(g). A spouse is covered if the spouse is the subject of a counterclaim by a non-spouse defendant or a claim by a non-spouse third-party plaintiff. Sharlow v. Nationwide Mut. Ins. Co., 47 A.D.2d 572, 362 N.Y.S.2d 618 (3d Dep't 1975); State Farm Mut. Auto Ins. v. Westlake, 35 N.Y.2d 587; 324 N.E.2d 137 (1974). Statutory exclusion of spouse in liability coverage where suit is by other spouse, unless expressly provided for in policy, applies only in direct suits, where injured spouse must prove culpable conduct, i.e., negligence, of insured spouse, but not in counterclaims or impleaders. N.Y. Ins. Law § 3420(g) (McKinney 2009); See also Yankelevitz v. Royal Globe Ins. Co., 59 N.Y.2d 295, 453 N.E.2d 524 (1983); Mandels v. Liberty Mut. Ins. Co., 45 N.Y.2d 455, 382 N.E.2d 762 (1978); Hanozas v. Gramas, 91 Misc. 2d 520, 398 N.Y.S.2d 204 (Supreme Court, Nassau County, 1977); State Farm. Mut. Auto. Ins. Co. v. Ground, 243 AD 2d 557, 662 N.Y.S.2d 845 (2d Dep't 1997); Suba v. State Farm Fire & Cas. Co., 114 A.D. 2d 280, 498 N.Y.S.2d 656 (4th Dep't 1986); Purpose of statute was to protect carriers against collusive suits between spouses. See United States Fid. & Guar. Co. v. Franklin, 74 Misc. 2d 506, 344 N.Y.S.2d 251 (Westchester County 1973), aff'd, 43 A.D.2d 844, 352 N.Y.S.2d 1009 (2d Dep't 1974); see also, Galpern v. Gen. Motors. Corp., 102 Misc. 2d 975, 425 N.Y.S.2d 1008 (Supreme Court, New York County 1980).

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Imputed Negligence. Negligence of operator not imputed to passenger, no matter relationship, unless passenger's own personal negligence contributed to injury. Kalechman v. Drew Auto Rental, Inc., 33 N.Y.2d 397, 308 N.E.2d 886 (1973); see also Durham v. Holmes, 79 Misc. 2d 143, 359 N.Y.S.2d 736 (N.Y. Sup. Ct. 1974) (plaintiff, as owner/passenger, is not relieved of statutory derivative liability as owner under N.Y. Veh. & Traf. Law § 388). Jurisdiction. Service of Process Upon Non-Resident Motorists. By serving Secretary of State and registered or certified (return receipt) mailing to or serving copy on defendant personally without state in manner prescribed. N.Y. Veh. & Traf. Law §253. This section applies to all courts having jurisdiction. La Placa v. Hutcheson, 191 Misc. 27, 79 N.Y.S.2d 355 (N.Y. Co. Ct. 1948). Nonresident owner not subject to service of process on Secretary of State. Lowe v. Western Express Co., 189 Misc. 177, 68 N.Y.S.2d 873 (N.Y. Sup. Ct. 1947). Same with respect to farm tractor. Wilson v. Heidenreich, 201 Misc. 333, 109 N.Y.S.2d 428 (N.Y. Sup. Ct. 1951). Last Clear Chance Doctrine. Whether defendant lacked actual knowledge of plaintiff being in state of peril, or simply saw plaintiff and disregarded his presence, is jury issue. Lee v. General Baking Co., 40 A.D.2d 687, 336 N.Y.S.2d 92 (2d Dep't 1972). Infant hesitating and then dashing across highway, doctrine not applicable. Lloyd-Taylor v. Northern Westchester Builders, 67 A.D.2d 904, 413 N.Y.S.2d 176 (2d Dep't 1979). Plaintiff running across road, doctrine applied. Jarrett v. Madifari, 67 A.D.2d 396, 415 N.Y.S.2d 644 (1st Dep't 1979). Doctrine does not apply where negligent acts of two parties work contemporaneous. McDaniel v. Clarkstown Cent. School, 111 A.D.2d 151, 488 N.Y.S.2d 783 (2d Dep't 1985); Lloyd-Taylor, 67 A.D.2d at 904, 413 N.Y.S.2d at 176. Learner's Permit. Learner's Permit. Passenger "assumes risk" of injury caused by driver's lack of skill and experience. St. Denis v. Skidmore, 14 A.D.2d 981, 221 N.Y.S.2d 613 (3d Dep't 1961), aff'd, 12 N.Y.2d 901, 188 N.E.2d 268 (1963); Spellman v. Spellman, 309 N.Y. 663, 128 N.E.2d 317 (1955); Le Fleur v. Vergilia, 280 A.D. 1035, 117 N.Y.S.2d 244 (4th Dep't 1952). Licensed driver has duty as instructor and duty of general care in supervision of learner-driver. N.Y. Veh. & Traf. Law §501(5)(a)(ii); Barile v. Carroll, 280 A.D.2d 988, 720 N.Y.S.2d 674 (4th Dep't 2001); Savone v. Donges, 122 A.D.2d 34, 504 N.Y.S.2d 474 (2d Dep't 1986); Lazofsky v. City of New York, 22 A.D.2d 858, 254 N.Y.S.2d 349 (1st Dep't 1964); Wolpert v. Garrett, 278 A.D. 893, 105 N.Y.S.2d 21 (4th Dep't 1951). License. Special junior license 16 to 18 years. N.Y. Veh. & Traf. Law §501. Failure to have driver's license

does not raise presumption of negligence. Adams v. Surlock, 261 A.D. 874, 25 N.Y.S.2d 1018 (4th Dep't 1941), aff'd, 286 N.Y. 667, 36 N.E.2d 699 (1941). Absence or possession of a driver's license relates only to authority to operate vehicle and not the manner thereof. Dalal v. City of New York, 262 A.D.2d 596, 692 N.Y.S.2d 468 (2d Dep't 1999). It is not prima facie negligence. Phass v. MacClenathen, 274 A.D. 535, 85 N.Y.S.2d 643 (3d Dep't 1948). Violation of statute may in some cases constitute evidence of negligence. Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814 (1920). License Plates. Dealer loaned plates to purchaser who, at time of accident, was using them beyond scope and period of agreed permission. Defendant dealer may cross-complain against defendant purchaser for indemnification. Young v. Central Greyhound Lines, Inc., 206 Misc. 1045, 136 N.Y.S.2d 519 (N.Y. Sup. Ct. 1955). Vendor owner liable for negligence of purchaser if he fails to remove vendor's plates. Mastromauro v. Manno, 120 A.D.2d 496, 501 N.Y.S.2d 697 (2d Dep't 1986). "Motor Vehicle" Definition. Motorized bicycle is "motor vehicle" within N.Y. Veh. & Traf. Law. People v. Farina, 65 Misc. 2d 970, 319 N.Y.S.2d 166 (N.Y. Dist. Ct. 1971). See also "LIABILITY INSURANCE, Coverage." An all-terrain vehicle is not a motor vehicle under the N.Y. Veh. & Traf. Law or Ins. Law. Guay v. NY Central Mut. Fire Ins. Co., 144 Misc. 2d 785, 545 N.Y.S.2d 265 (N.Y. Sup. Ct. 1989). Trailer is motor vehicle under N.Y. Veh. & Traf. Law § 388; Yoon Young Lee v. Rivera, 27 Misc. 3d 1201(A), 910 N.Y.S.2d 409 (N.Y. Sup. Ct. 2010). Negligent Entrustment. Plaintiff must plead with specificity that vehicle owner possessed special knowledge concerning a characteristic or condition peculiar to the operator which rendered the use of the vehicle unreasonably dangerous. N.Y. Veh. & Traf. Law § 388; Burrell v. Barreiro, 83 A.D.3d 984, 922 N.Y.S.2d 465 (2d Dep't 2011). Automobile salesperson owes no duty to assess the ability or mental or physical fitness of customer beyond that of average salesperson. Cook v. Shapiro, 58 A.D.3d 664, 871 N.Y.S.2d 714 (2 Dep't 2009). Rental car company has duty to ensure renter has valid driver's license. Bryne v. Collins, 77 A.D.3d 782, 910 N.Y.S.2d 449 (2d Dep't 2010). No-fault. Statute effective Feb. 1, 1974 See "NOFAULT." Ownership. Certificate of Title Act (1972) requires owner to apply for certificate of title. On transfers Motor Vehicle Department will not re-register unless satisfied as to genuineness of records and application. Article 46, N.Y. Veh. & Traf. Law. Certificate of Title issued by New York State Department of Motor Vehicles consti---- For Current Listings access www.ambest.com/legal----

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tutes prima facie evidence as to ownership, which can be rebutted by evidence demonstrating other individual owned vehicle. Aronov v. Bruins Transp., Inc., 294 A.D.3d 523, 743 N.Y.S.2d 131 (2d Dep't 2002). Title to a motor vehicle passes when the parties intend that it pass. Dallura v. Rubicco, 5 A.D.3d 346, 772 N.Y.S.2d 532 (2d Dep't 2004). Owner includes lessee or bailee having exclusive use under lease or otherwise for more than 30 days. N.Y. Veh. & Traf. Law § 128. Pedestrian. Comparative negligence of pedestrian does not preclude recovery but instead acts to diminish recovery in proportion to driver's culpable conduct. Strauss v. Billig, 78 A.D.3d 415, 909 N.Y.S.2d 724 (1st Dep't 2010). Evidence that motorist did not observe pedestrian because pedestrian was not in unmarked crosswalk sufficient to establish lack of culpable conduct of motorist. Liability is attributed to pedestrian who fails to yield right-of-way to all vehicles while crossing outside of marked crossway. N.Y. Veh. & Traf. Law §1152. Rear-End Hit. It is negligence as matter of law if stopped car is hit in rear in absence of some excuse. Pappas v. Optiz, 262 A.D.2d 741, 692 N.Y.S.2d 127 (2d Dep't 1999); Cohen v. Terranella, 112 A.D.2d 264, 491 N.Y.S.2d 711 (2d Dep't 1985). Rental. Failure to name operator of vehicle as "named driver" in car rental is not a bar to liability of owner (lessor) to injured third parties. Tom Sawyer Country Day School v. Providence Washington, 108 A.D.2d 810, 485 N.Y.S.2d 126 (2d Dep't 1985), appeal denied, 65 N.Y.2d 608, 484 N.E.2d 671 (1985); MVAIC v. Cont'l Nat'l, 35 N.Y.2d 260, 319 N.E.2d 182 (1974); N.Y. Veh. & Traf. Law § 388. However, 49 USC 30106, the "Graves Amendment," bars State law vicarious liability actions commenced on or after August 10, 2005, against owners of motor vehicles engaged in the trade or business of renting or leasing motor vehicles. Hall v. ELRAC, Inc., 52 A.D.3d 262, 859 N.Y.S.2d 641 (2d Dep't 2008); Hernandez v. Sanchez, 40 A.D.3d 446, 836 N.Y.S.2d 577 (1st Dep't 2007). Seat Belts. Passenger car use of seat belts is mandatory. Non-use of seat belt is only for jury's determination of damages and not on issue of liability. Burden of pleading and proving use would have mitigated injuries is on defendant from expert testimony. Spier v. Barker, 35 N.Y.2d 444, 323 N.E.2d 164, 363 N.Y.S.2d 916 (1974). N.Y. Veh. & Traf. Law § 1229-c allows noncompliance with seat belt requirement to be introduced in mitigation of damages only where party introducing such evidence has pleaded noncompliance as an affirmative defense, defendant in a personal injury action who failed to specifically plead plaintiff's non-use of seat belts but instead relied solely on "culpable conduct" would be precluded from introducing evidence of non-

use. Costanza v. City of New York, 147 Misc. 2d 94, 553 N.Y.S.2d 616 (N.Y. City Ct. 1990). Safety belts and anchorage assemblies. N.Y. Veh. & Traf. Law § 383. Operator does not have duty to ensure adult passenger restrained by seat belt before operating vehicle. Calandrillo v. Alessi 242 A.D.2d 551, 662 N.Y.S.2d 92 (2d Dep't 1997). Expert testimony regarding ejection from car creates an issue of casual connection of injuries and nonuse of seat belt. Cappadona v. State, 154 A.D.2d 498, 546 N.Y.S.2d 124 (2d Dep't 1989). Sudden Stop. Operator of vehicle has duty to avoid stopping suddenly without properly signaling when given opportunity to do so. Taveras v. Amir, 24 A.D.3d 655, 808 N.Y.S.2d 368 (2d Dep't 2005). Bare claim that driver of lead vehicle suddenly stopped, standing alone, insufficient to rebut presumption of negligent of second vehicle. Ramirez v. Konstanzer, 61 A.D.3d 837, 878 N.Y.S.2d 381 (2d Dep't 2009). However, not every rear end collision is exclusive fault of rearmost driver. Tutrani v. County of Suffolk, 64 A.D.3d 53, 878 N.Y.S.2d 412 (2d Dep't 2009). Driver looking and not seeing approaching car, which from physical facts and time must have been in full view, is "incredible testimony as matter of law." Abrams v. Gerold, 37 A.D.2d 391, 326 N.Y.S.2d 1 (1st Dep't 1971); Weigand v. United Traction Co. 221 N.Y. 39, 116 N.E. 345 (1917). Unattended Vehicles. No person driving a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key, setting the brake and turning the front wheels to the curb or side of the highway. N.Y. Veh. & Traf. Law § 1210. Owner liable for failure to remove key when parked on public street. Dougherty v. Kinard, 215 A.D.2d 521, 626 N.Y.S.2d 554 (2d Dep't 1995); Delfino v. Ranieri, 131 Misc. 2d 600, 501 N.Y.S.2d 248 (N.Y. Sup. Ct. 1986). Leaving key under book on front seat but locking door, court found was not a violation of statute and no liability to owner for injuries caused by thief. Banellis v. Yackel, 69 A.D.2d 1013, 416 N.Y.S.2d 151 (4th Dep't 1979). Statute does not apply to car in privately owned parking lot, thus owner of car has no liability for use by juvenile thief. Podstupka v. Brannon, 81 Misc. 2d 338, 365 N.Y.S.2d 670 (N.Y. Sup. Ct. 1975). Uninsured Motorist Endorsement. Where arbitration of a claim for damages caused by an uninsured motorist is sought pursuant to an automobile policy provision, an order for a preliminary determination by a jury as to whether the subject automobile was insured is appropriate to settle the issue. Matter of Rosenbaum, 11 N.Y.2d 310, 183 N.E.2d 667 (1962). Vicarious Liability. Owner is liable if auto operated by another with permission, express or implied. N.Y. Veh. & Traf. Law § 388; but see "Graves Amendment."

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Owner loaned car to nephew, forbade nephew's friend to drive, instructions disobeyed, friend drove, nephew in car, owner liable. Arcara v. Moresse, 258 N.Y. 211, 179 N.E. 389 (1932). Owner loaned car to son, forbade friend to drive, instructions disobeyed, friend drove, son not in car, owner not liable. Voorhes v. Tide Water Oil Sales Corp., 240 A.D. 710, 264 N.Y.S. 743 (2d Dep't 1933). "[A] vehicle's owner can be vicarious liable under § 388(1) for injuries resulting from a permissive user's negligent loading and unloading." Argentina v. Emery World Wide Delivery Corp., 93 N.Y.2d 554, 715 N.E.2d 495 (1999). Owners can be held liable under § 388 for injuries proximately caused by negligently parked motor vehicles. Bouchard v. Canadian Pacific Ltd., 267 A.D.2d 899, 700 N.Y.S.2d 540 (3d Dep't 1999). AVIATION See "DEATH." An airline's duty to provide service with the highest possible degree of safety in the public interest extends beyond those on board the aircraft and to individuals and property on the ground. In re September 11 Litigation, 594 F. Supp. 2d 374 (S.D.N.Y. 2009). Airlines and airport security have a duty to secure passenger aircraft against potential terrorists and weapons smuggled aboard aircraft. In re September 11 Litigation 280 F. Supp. 2d 279 (S.D.N.Y. 2003). This duty extends to ground victims of crashes involving aircraft hijacked by terrorists. Id. Fare paying passenger on regularly scheduled flight over established air route, not "engaged in aviation or aeronautics." Hartol Products Co. v. Prudential Ins. Co., 290 N.Y. 44, 47 N.E.2d 687 (1943); Lee v. Guardian Ins. Co., 187 Misc. 221, 46 N.Y.S.2d 241 (N.Y. Sup. Ct. 1944). Printed conditions on ticket relieving air carrier from liability for negligence, held invalid where passenger was given no choice of rates between full or limited liability of carrier for negligence. Conklin v. CanadianColonial Airways, 266 N.Y. 244, 194 N.E. 692 (1935). Contra with respect to international flight governed by Warsaw Convention. See decision and discussion in Ross v. Pan Am., 299 N.Y. 88, 85 N.E.2d 880 (1949). Action for wrongful death, extent and distribution of damages recoverable governed by laws of place of accident. Faron v. Eastern Airlines, 193 Misc. 395, 84 N.Y.S.2d 568 (N.Y. Sup. Ct. 1948); In Re Burke, 191 Misc. 9, 79 N.Y.S.2d 561 (N.Y. Sur. Ct. 1948). Warsaw Convention. Applies to international flights and countries agreeing to the treaty. It limits recovery but creates presumption of liability. List of coun-

tries to Warsaw Convention, write: Dept. of State, Treaty Div., Int. Civil Aviation Organization, and Montreal, Canada. Service of process upon non-resident owners and operators of aircraft. By serving Secretary of State and otherwise complying with General Business Law § 250. BROKERS See "AGENTS AND BROKERS." CANCELLATION See "LIABILITY INSURANCE." Although an insurer has a common law right to void a policy from its inception on the ground that it was obtained through fraud or misrepresentation, a carrier was not permitted to rescind a New York Automobile Assigned Risk Plan policy on basis of fraud or misrepresentation after an accident had already occurred and after the insurer had completed an investigation into the insured and failed to detect the fraud. Aetna v. O'Connor, 8 N.Y.2d 359, 170 N.E.2d 681 (1960). St. Paul Fire & Marine Ins. Co. v. Adee Truck & Car Rental, Inc., 2007 WL 3355390 (S.D.N.Y. 2007). Pursuant to N.Y. Ins. Law §3426(b) during the first 60 days a commercial risk insurance policy, professional liability policy or public entity insurance policy is in effect, no cancellation shall become effective until 21 days after written notice is mailed or delivered to the first named insured at the mailing address shown on the policy and to the insured's authorized agent or broker. Pursuant to N.Y. Ins. Law § 3426 (c) after a commercial risk insurance policy, professional liability policy or public entity insurance policy is in effect for over 60 days, no notice of cancellation shall become effective until 15 days after written notice is mailed or delivered to the first-named insured and to the insured's authorized agent or broker, and such cancellation is based upon one of the reasons articulated in N.Y. Ins. Law § 3426(c)(1)(5). Cancellation of gap insurance is regulated by N.Y. Ins. Law § 3427. If insured cancels policy, broker only entitled to commission based on earned premium; insured entitled to pro rata return of premium paid without regard to broker's commission. 1501 Sixty-Ninth St. Corp. v. Consolidated, 176 Misc. 747, 29 N.Y.S.2d 269 (N.Y. Mun. Ct. 1941). Exclusive method to terminate auto insurance is set forth in N.Y. Veh. & Traf. Law §313. Liability Insurance. When effective. Lesk v. London, 286 N.Y. 443, 36 N.E.2d 655 (1941).

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CONSTRUCTION OF POLICY See also "LIABILITY INSURANCE." The coverage afforded under an insurance policy "is the sum total, or net balance" or coming together of the policy's insuring clauses and exclusions because "it is not either alone, but the combination of both, which defines the scope of the protection afforded no more and no less." Albert J. Schiff Assocs. v. Flack, 51 N.Y.2d 692, 417 N.E. 2d 84 (1980). Tests to be applied in construing an insurance policy are common speech and the reasonable expectation and purpose of the ordinary businessman and any ambiguities in an insurance policy are to be construed against the insurer particularly when found in an exclusionary clause. Ace Wire & Cable Co., Inc. v. Aetna Cas. & Sur. Co., 60 N.Y.2d 390, 457 N.E.2d 761, 469 N.Y.S.2d 655 (1983); Lancer Ins. Co. v. Marine Motor Sales, Inc., 84 A.D.3d 1318, 924 N.Y.S.2d 160, 2011 (2d Dep't 2011) leave to appeal denied, 17 N.Y.3d 714, 957 N.E.2d 1159, 933 N.Y.S.2d 655 (2011); Commercial Ins. Co. of Newark, New Jersey v. Popadich, 68 A.D.3d 401, 890 N.Y.S.2d 36 (1st Dep't 2009). If the plain language of the policy is determinative, courts will not rewrite the agreement by disregarding that language. Fieldston Property Owners Ass'n, Inc. v. Hermitage Ins. Co., Inc., 16 N.Y.3d 257, 945 N.E.2d 1013 (2011). In general, it is the insured's burden to establish coverage and the insurer's burden to prove the applicability of an exclusion. Consolidated Edison Co. of New York, Inc. v. Allstate Ins. Co., 98 N.Y.2d 208, 774 N.E.2d 687 (2002); Great American Restoration Services, Inc. v. Scottsdale Ins. Co., 78 A.D.3d 773, 911 N.Y.S.2d 142 (2d Dep't 2010). The insurer's burden of establishing that coverage exclusions or exemptions apply is heavy, and doubtful or uncertain language leading to ambiguity will be interpreted against the insurer. Insurance Co. of Greater New York v. Clermont Armory, LLC, 84 A.D.3d 1168, 923 N.Y.S.2d 661 (2d Dep't 2011) leave to appeal denied 17 N.Y.3d 714, 957 N.E.2d 1159, 933 N.Y.S.2d 655 (2011). An insurer claiming that coverage is negated by enumerated exclusion in policy is required to establish that exclusion is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in individual case. Nussbaum Diamonds, LLC v. Hanover Ins. Co., 64 A.D.3d 488, 883 N.Y.S.2d 509 (1st Dep't 2009). CONTRIBUTION See also "IMPLEADER" and "RELEASE"-Joint tortfeasors. Contribution and Indemnity distinguished.

Smart v. Morard, 124 N.Y.S.2d 634 (N.Y. Sup. 1953); see also Trump Village v. New York State Housing, 307 A.D.2d 891, 764 N.Y.S.2d 17 (1st Dep't 2003); Taylor v. Paskoff & Tamber, LLP, 2011 WL 1480892 (New York County Mar. 30, 2011) (trial order). Under contribution, the loss is distributed among tortfeasors, by requiring joint tortfeasors to pay a proportionate share of the loss to one who has discharged their joint liability, while in indemnity the party held legally liable shifts the entire loss to another via contract or common law right of recovery. Rosado v. Proctor & Schwartz, Inc., 66 N.Y.2d 21, 484 N.E.2d 1354, 494 N.Y.S.2d 851 (1985). But see, Brooks v. Judlau Contr., 11 N.Y.3d 204, 898 N.E.2d 549 (2008) which allows for partial contractual indemnification. Contribution under CPLR §1401 is not permitted when based on economic loss resulting from breach of contract. Bd. of Educ. v. Sargent, Webster, Crenshaw & Folley, 71 N.Y.2d 21, 517 N.E.2d 1360 (1987); Children's Corner v. Miranda Contr. Corp., 64 A.D.3d 318, 879 N.Y.S.2d 418 (1st Dep't 2009) (availability of contribution determined by measure of damages and not nature of claim). Pursuant to Article 14 of the CPLR, defendants to a lawsuit involving torts including negligence actions are typically joint and severally liable for damages awarded in the lawsuit. Consequently, if a defendant in a tort action is 1% negligent then the defendant is responsible for the satisfying the entire judgment awarded by a judge or jury. Exceptions to joint and several liability are outlined in Article 16 of the CPLR and N.Y. Gen. Oblig Law § 15-108. CPLR §1402 defines contribution as "the excess paid by him [defendant] over and above his [defendant's] equitable share of the judgment recovered by the injured party." Contribution entitles a defendant who paid damages in excess of the defendant's percentage of negligence to recover the portion of fault not attributed to the defendant from co-defendant or third-party. See generally, Sommer v. Fed. Signal Corp., 79 N.Y.2d 540, 593 N.E.2d 1365, 583 N.Y.S.2d 957 (1992); see also O'Gara v. Allacci, 67 A.D.3d 54, 887 N.Y.S.2d 106 (2d Dep't 2009); Green Bus Lines, Inc. v. Consolidated Mut. Ins. Co., 74 A.D.2d 136, 426 N.Y.S.2d 981 (2d Dep't 1981). Cross-claims can be served among co-defendants for contribution in accordance with percentage of each defendants' negligence. CPLR §3011; Bush Terminal v. Luckenbach S.S., 9 N.Y.2d 426, 174 N.E.2d 516, (1961); Pine v. Solow, 74 A.D.2d 514, 425 N.Y.S.2d 3 (1st Dep't 1978) (noting cross-claim may be asserted but no recovery unless or until a plaintiff obtains a damages award);

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see also Tanger v. Ferrer, 82 A.D.3d 564, 918 N.Y.S.2d 719 (1st Dep't 2011); Masterwear Corp. v. Benard, 3 A.D.2d 305, 771 N.Y.S.2d 72 (1st Dep't 2004); Lewis v. Yonkers Gen. Hosp., 174 A.D.2d 611, 571 N.Y.S.2d 94 (2d Dep't 1991). N.Y. Gen. Oblig. Law 15-108(c) states that "Waiver of contribution: A tortfeasor who has obtains his own release from liability shall not be entitled to contribution from any other person." Consequently, a defendant who obtains a release is cannot pursue contribution claims. § 15-108(c) does not preclude a defendant who obtains a release from pursuing indemnity claims. Glaser v. M. Fortunoff, 71 N.Y.2d 643, 524 N.E.2d 413, (1988); Farrell v. Gristede's Supermarkets, Inc., 50 A.D.3d 603, 857 N.Y.S.2d 83 (1st Dep't 2008). N.Y. Gen. Oblig. Law §15-108(b) states that: "Release of tortfeasor. A release given in good faith by the injured person to one tortfeasor as provided in subdivision (a) relieves him from liability to any other person for contribution as provided in article fourteen of the civil practice law and rules." Consequently, a defendant who obtains a release is no longer subject to contribution claims. Kagan v. Jacobs, 260 A.D.2d 442, 687 N.Y.S. 731(2d Dep't, 1999). Generally successive tortfeasors may not seek apportionment of damages, each liable for damages by specific conduct for aggravation. Helmrich v. Eli Lilly, 89 A.D.2d 441, 455 N.Y.S.2d 460 (4th Dep't 1982). Employer can be impleaded as a third party defendant in a suit by injured employee if employee sustained a "grave injury" as defined by Workers' Compensation Law §§ 11 and 29. "Grave injury" to plaintiff employee required as defined in Omnibus Workers' Compensation Act: "... death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability." N.Y. Workers' Comp. Law § 11 (McKinney 2007). DAMAGES See also "CONTRIBUTION"; "RELEASE"; "IMPLEADER"; "DEATH." Arbitration Awards Collateral Estoppel. Arbitrator's award denying plaintiff's No-Fault injury benefits claim is binding in subsequent personal injury liability suit and is bar against plaintiff on same issues. Kilduff v. Donna Oil Corp., 74 A.D.2d 562, 424 N.Y.S.2d 282 (2d Dep't 1980); see also Schwartz v. Public Adm'r, 24

N.Y.2d 65, 246 N.E.2d 725 (1969); American Ins. Co. v. Messinger, 43 N.Y.2d 184, 371 N.E.2d 798, 401 N.Y.S.2d 36 (1977); Baldwin v. Brooks, 83 A.D.2d 85, 443 N.Y.S.2d 906 (4th Dep't 1981) (not binding since defendant not present at and no interest in arbitration. Collateral estoppel is applied by court to issues decided by arbitrator). Clemens v. Apple, 102 A.D.2d 236, 477 N.Y.S.2d 774 (3d Dep't 1984), aff'd, 65 N.Y.2d 746, 481 N.E.2d 560 (1985). See also Gafur v. Garden Cab Corp., 1 Misc. 3d 912 (A), 781 N.Y.S.2d 624 (N.Y. Sup. 2004) (not binding to subsequent action involving party that did not participate in arbitration; collateral estoppel only precludes party who did participate in arbitration from re-litigating claims which were previously arbitrated to conclusion); see also Paulos v. Marzano, et al., 1991 WL 126391 (E.D.N.Y. 1991) (no fault arbitration awards determine the insurer's contractual liability for first party payments, not the liability of insureds; when insureds are not parties in privity with insurer, they are not bound by arbitrator's decision). Collateral Sources. In all personal injury, property damage or wrongful death suits started on or after June 30, 1986, Court shall reduce verdict by amount equal to past and projected future collateral sources. Excluded are life insurance and those payments for which there is a statutory right of reimbursement. CPLR §4545 (a). It is generally believed that it should be pleaded as an affirmative defense. The 1988 amendment of CPLR §4111 requires detailed itemization in the verdict. Applies to all cases on trial after July, 1988. Collateral Source information should be discoverable in like manner as all other matters "material and necessary" to the defense of the matter. Stolowski v. 234 East 178th Street LLC, 89 A.D.3d 549, 933 N.Y.S.2d 232 (1st Dep't 2011); Firmes v. Chase Manhattan Automotive Finance Corp., 50 A.D.3d 18, 852 N.Y.S.2d 148 (2d Dep't 2008). Comparative Negligence. In action for personal injury, property damage or wrongful death, amount of damages otherwise recoverable shall be diminished in proportion that culpable conduct attributable to plaintiff, regardless of amount or percentage, bears to culpable conduct of defendants. See CPLR §1411. Defendants must plead "comparative negligence" as an affirmative defense. Defendant has burden of proving "comparative negligence" defense. Tounkara v. Fernicola, 80 A.D.3d 470, 914 N.Y.S.2d 161 (1st Dep't 2011); Perales v. City of New York, 274 A.D.2d 349, 711 N.Y.S.2d 9 (1st Dep't 2000) (jury will not be charged on comparative negligence where evidence fails to support rational conclusion that plaintiff was negligent). Joint and Several Liability. There is typically joint and several liability when two or more persons: (a) breach a common duty to the plaintiff; (b) act in concert

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to commit an injury; (c) commit separate acts which concur to create one single indivisible injury to plaintiff; or (c) commit independent tortuous acts and there is proof that only one causes injury, but plaintiff cannot prove which person caused the injury. Ravo v. Rogatnick, 70 N.Y.2d 305, 514 N.E.2d 1104 (1987); Wold v. Grozalsky, 277 N.Y. 364, 366. 14 N.E.2d 437 (1938); Graphics Arts Mutual Insurance Co. v. Bakers Mutual Insurance Co., 45 N.Y.2d 551, 382 N.E.2d 1347 (1978); Hawkes v. Goll, 256 A.D. 940, 9 N.Y.S.2d 924 (2d Dep't 1939). There is no joint and several liability when tortfeasors acting independently cause separate and distinct injuries to a single plaintiff. Suria v. Shifman, 67 N.Y.2d 87, 490 N.E.2d 832 (1986); but see Roebuck v. Duprey, 274 A.D.2d 620, 710 N.Y.S.2d 451 (3d Dep't 2000) (joint and several liability jury charge inappropriate where defendants did not act in concert or contribute concurrently to the same wrong). Pursuant to CPLR §1601 defendant joint tortfeasors who are found to be 50 percent or less liable for noneconomic damages, are only liable for his or her equitable share of non-economic damages. See CPLR §1601. This limitation applies only to "non economic loss" such as pain and suffering and loss of consortium. CPLR §1601 does not apply to economic damages such as medical expenses, loss of wages or property damage. ; CPLR §1602 outlines circumstances to which CPLR §1601 does not apply. Some examples of exceptions to CPLR §1601 include: 1) written contracts of indemnity in which it was "expressly" agreed that indemnification would apply to type of loss suffered; 2) claim for indemnification by public employee; 3) claims between defendant and third party defendant who is employer of plaintiff; 4) any claim in which intent or reckless disregard for safety of others is element of proof; 5) any defendant found liable by reason of use, operation or ownership of motor vehicle, 6) product liability action in which manufacturer is not defendant because plaintiff could not obtain jurisdiction over defendant and where plaintiff proves that manufacturer would have been strictly liable if jurisdiction had been obtained; 7) situations where non-parties share in culpability, if plaintiff can prove that with due diligence he was unable to obtain jurisdiction over that person; 8) actions which allege conspiracy among tortfeasors. CPLR §1602; See also "CONTRIBUTION." Generally, in negligence and malpractice actions, if one defendant is vicariously liable for the acts of the other they will not be considered joint tortfeasors but "united in interest." Raschel v. Rish, 69 N.Y.2d 694, 504 N.E.2d 389 (1986). Death. See also "DEATH."

There are five major components to damages in a wrongful death case: (a) The decedent's pre-impact terror; (b) the decedent's conscious pain and suffering; (c) pecuniary damages; (d) medical and funeral expenses; and; (e) loss of parental guidance for the children. Pre-Impact Terror. A decedent's estate, under New York law, is entitled to compensation for the decedent's anticipation, fear and distraught of his impending death. Courts have held that several seconds of pre-impact terror warrants, at best, a minimal award. Donofrio v. Montalbano, 240 A.D.2d 617, 659 N.Y.S.2d 484 (2d Dep't 1997); but see Stolarski v. Family Services of Westchester, 33 Misc.3d 607, 930 N.Y.S.2d 824 (N.Y. Sup. Ct., Westchester Cty., 2011) (damages for pre-impact terror inappropriate where suicide caused by pre-existing depression). The Appellate Division oftentimes reduces jury awards for pre-impact terror. Emanuel v. Sheridan, 10 A.D.3d 46, 779 N.Y.S.2d 168 (1st Dep't 2007), court reduced a jury award for pre-impact terror from $2,000,000 to $100,000. Donofrio v. Montalbano, 240 A.D.2d 617, 659 N.Y.S.2d 484 (2d Dep't 1997), court reduced a jury award for pre-impact terror from $1,500,000 to $100,000. Klos v. New York City Transit Authority, 240 A.D.2d 635, 659 N.Y.S.2d 97 (2d Dep't 1997) court reduced a jury verdict award for pre-impact terror from $115,000 to $50,000 Lang v. Bouju, 245 A.D.2d 1000, 667 N.Y.S.2d 440 (3d Dep't 1997) court reduced a jury verdict award for pre-impact terror from $239,125 to $100,000. Conscious Pain and Suffering. A decedent is entitled to fair compensation for conscious pain endured provided jury finds he was conscious prior to his death. Cummins v. County of Onondaga, 84 N.Y.2d 322, 642 N.E.2d 1071 (1994). see also Maracallo v. Board of Educ. Of City of New York, 2 Misc. 3d 703, 769 N.Y.S.2d 717 (N.Y. Sup. 2003). Plaintiff has threshold burden of proving consciousness for at least some period following accident in order to justify award of damages for pain and suffering. Cummins v. County of Onondaga, 84 N.Y.2d 322, 642 N.E.2d 1071 (1994); Ferguson v. City of New York, 73 A.D.3d 649, 901 N.Y.S.2d 609 (1st Dep't 2010) (award inappropriate where plaintiff failed to present evidence that decedent was conscious after being shot in head). Nonpecuniary loss allowed when there is "some level of awareness." McDougald v. Garber, 73 N.Y.2d 246, 536 N.E.2d 372 (1989). Pecuniary Damages. Pecuniary injuries suffered by distributes of estate are limited to loss of support, voluntary assistance, possible inheritance, and medical and funeral expenses incidental to death. See Parilis v. Feinstein, 49 N.Y.2d 984, 406 N.E.2d 1059 (1980); DeLuca v. Gallo, 287 A.D.2d 222, 735 N.Y.S.2d 596 (2d Dep't 2001). Calculation of pecuniary loss is question for jury.

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Arias v. State, 822 N.Y.S.2d 727, 33 A.D.3d 951 (2d Dep't 2006); Daniel v. City of New York, 8 A.D.3d 6, 777 N.Y.S.2d 492 (1st Dep't 2004). Loss of Parental Guidance. Damages are award to a decedent's children for loss of parental guidance. Segal v. City of New York, 66 A.D.3d 865, 887 N.Y.S.2d 864 (2d Dep't 2009) ($200,000 awarded for past loss of parental guidance and $250,000 granted for future loss of parental guidance to decedent's children.); Carlson v. Porter, 53 A.D.3d 1129, 861 N.Y.S.2d 907 (4th Dep't 2008)(Children awarded $250,000 for past loss of parental guidance and $750,000 for future loss of parental guidance). Funeral Expenses. A decedent's estate is entitled to recover for payment of funeral expenses. See E.P.T.L. 54.3(a). Emotional Distress. Severe emotional and neurological disturbances with residual physical manifestation caused by fright and hysteria, without physical trauma, are recognized against parties who owe plaintiff a duty. Ornstein v. New York City Health and Hospitals Corp., 10 N.Y.3d 1, 881 N.E.2d 1187 (2008); Kennedy v. McKesson Co., 58 N.Y.2d 500, 448 N.E.2d 1332 (1983). In the context of cancer, a physician can be liable for causing cancer phobia if plaintiff-patient exhibits viable physical consequences because of said phobia. Ferrara v. Galluchio, 5 N.Y.2d 16, 152 N.E.2d 249 (1958). Emotional distress claim over AIDS requires proof of actual exposure. Bishop v. Mount Sinai Medical Center, 247 A.D.2d 329, 669 N.Y.S.2d 530 (1st Dep't 1998). Battalla v. State, 10 N.Y.2d 237, 176 N.E.2d 729 (1961); see also, Howard v. Lecher, 42 N.Y.2d 109, 366 N.E.2d 64 (1977); Bovsun v. Sanperi, 61 N.Y.2d 219, 461 N.E.2d 843 (1984). Complaint for mental anguish due to operation by doctor who was not qualified under Jewish religion was dismissed. Kalina v. General Hosp., 31 Misc. 2d 18, 220 N.Y.S.2d 733 (N.Y. Sup. Ct. 1961), aff'd, 18 A.D.2d 757, 235 N.Y.S.2d 808 (4th Dep't 1962), aff'd, 13 N.Y.2d 1023, 195 N.E.2d 309 (1963). No cause of action for psychological injury to mother who ran to accident scene from neighbor's house and saw injuries sustained by her 2year old child on grounds that there would be no rational way to limit scope of liability otherwise among persons similarly affected. Tobin v. Grossman, 24 N.Y.2d 609, 249 N.E. 2d 419 (1969). Court of Appeals allowed damages for emotional distress, "where plaintiff is in zone of danger," such that defendant's negligence exposes plaintiff to unreasonable risk of injury and claimant is immediate family member. Trombetta v. Conkling, 82 N.Y.2d 549, 626 N.E.2d 653 (1993); Bovsun v. Sanperi, 61 N.Y.2d 219, 461 N.E.2d

843 (1984). Daughter in car suffered "serious emotional disturbance" observing parents' injuries allowed $250,000 award. Van Norden v. Kliternick, 178 A.D.2d 167, 577 N.Y.S.2d 27 (1st Dep't 1991). (daughter in car suffered "serious emotional disturbance" observing parents' injuries allowed $250,000 award); but see Sullivan v. Ford Motor Co., 2000 WL 34377 (S.D.N.Y 2000) (nephew able to maintain action for emotional distress where decedent-aunt was sole legal guardian for nephew). New York allows damages for mental suffering due to mutilation of dead body without consent, including unauthorized autopsy. Colavito v. New York Organ Donor Network, 8 N.Y.3d 43, 860 N.E.2d 713 (2006); Melfi v. Mount Sinai Hosp., 64 A.D.3d 26, 877 N.Y.S.2d 300 (1st Dep't 2009); but see Nunez v. New York Organ Donor Network, 92 A.D.3d 594, 939 N.Y.S.2d 368 (1st Dep't 2012) (no liability where alleged tortfeasor acts in good faith under Public Health Law). Tort action exists for prenatal injuries negligently inflicted regardless of whether unborn child was viable, provided that it was born alive. LaBello v. Albany Medical Center Hosp., 85 N.Y.2d 701, 651 N.E.2d 908 (1995). No remedy is indicated for being born under handicap when only alternative is not to have been born at all. Alquijay v. St. Luke'sRoosevelt Hosp. Center, 63 N.Y.2d 978, 473 N.E.2d 244 (1984) (New York does not recognize cause of action for "wrongful life," in suit by child suffering from Down's Syndrome); DiGeronimo v. Fuchs, 33 Misc. 3d 206, 927 N.Y.S.2d 904 (N.Y. Sup. Ct., Richmond Cty., 2011); Stewart v. Long Island College Hosp., 35 A.D.2d 531, 313 N.Y.S.2d 502 (2d Dep't 1970), aff'd, 30 N.Y.2d 695, 283 N.E.2d 616 (1972); Greenberg v. Kliot, 47 A.D.2d 765, 367 N.Y.S.2d 966 (2d Dep't 1975); Johnson v. Yeshiva University, 53 A.D.2d 523, 384 N.Y.S.2d 455 (1st Dep't 1976), aff'd, 42 N.Y.2d 818, 364 N.E.2d 1340 (1977). Court does not recognize cause of action for wrongful life, in suit by child suffering from Down's Syndrome. Alquijay v. St. Lukes-Roosevelt Hosp. Ctr., 63 N.Y.2d 978, 473 N.E.2d 244 (1984). However, Court does recognize damages to fetus injured but born alive following failed abortion. See Mobley v. King, 4 N.Y.3d 627, 797 N.Y.S.2d 403 (2005); Klein v. Bialer, 72 A.D.3d 744, 899 N.Y.S.2d 297 (2d Dep't 2010). Excessive Verdict. Trial judge can order new trial on damages unless plaintiff consents to reduce amount. CPLR §4404. Appellate Division on appeal can find award excessive or inadequate, "if jury award deviates materially from reasonable compensation." CPLR §5501. Must set forth reasons for setting verdict aside. CPLR §5522 (b). Jury award of $200,000 for one hour of conscious pain and suffering was upheld. Lanera v. Hertz Corp., 161 A.D.2d 183, 554 N.Y.S.2d 570 (1st Dep't 1990). (jury award of $200,000 for one hour of

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conscious pain and suffering was upheld); Ramos v. New York City Transit Authority, 90 A.D.3d 492, 935 N.Y.S.2d 6 (1st Dep't 2011) (affirming award of $595,000 for past and future pain and suffering; award did not deviate materially from reasonable compensation for accident resulting in surgical repair of multiple disc herniations). Frivolous Claims. Any personal injury, property damage, or wrongful death claim, counterclaim, defense or crossclaim which is found by court to be frivolous will subject unsuccessful proponent to costs and reasonable attorney fees, not to exceed $10,000. CPLR §8303a(b). These may be assessed against attorney or party or both. CPLR §8303-a(a). Sicignano v. Town of Islip, 41 A.D.3d 830, 838 N.Y.S.2d 655 (2d Dep't 2007) (defendant's reliance on ordinance, previously declared invalid, warranted sanctions); Charles & Boudin v. Meyer, 307 A.D.2d 272, 762 N.Y.S.2d 421 (2d Dep't 2003) (sanctions warranted where plaintiff's action was barred by collateral estoppel). Inadequate Verdict. Trial court cannot increase, but can direct new trial on damages alone unless defendant agrees to increase. Ladd v. Parkhurst, 87 A.D.2d 971, 450 N.Y.S.2d 92 (4th Dep't 1982). Barnhard v. Cybex Intern., 89 A.D.3d 1554, 933 N.Y.S.2d 794 (4th Dep't 2011) (granting new trial on damages where jury award deviated material from reasonable compensation). Itemized Verdicts. CPLR §4111. Statutes very difficult to apply. Jeras v. East Mfg., 143 Misc. 2d 188, 540 N.Y.S.2d 656 (N.Y. Sup. Ct. 1989). In personal injury, property damage, and wrongful death suits started on or after July 30, 1986, verdict must specify special and general damages and item amounts for past and future damages and number of years over which such damages are to compensate plaintiff. CPLR §4111 (d) and (e). Sachse v. Metro P.T., P.C., 286 A.D.2d 682, 729 N.Y.S.2d 910 (2d Dep't 2001); Casey v. Tan, 255 A.D.2d 900, 680 N.Y.S.2d 391 (4th Dep 't 1998). Also Article 50-1 (CPLR §5031-Medical & Dental). Verdicts in wrongful death actions must reflect impact of taxes on deceased's income. E.P.T.L. § 5-4.3. Judge tells jury personal injury award not taxable and not to consider tax consequences in figuring amount. Plaintiff's damages should be calculated without regard to taxes. Johnson v. Manhattan & Bronx Surface Transit Operating Authority, 71 N.Y.2d 198, 519 N.E.2d 326 (1988). Lanzano v. City of New York, 71 N.Y.2d 208, 519 N.E.2d 331 (1988); Johnson v. Manhattan & Bronx Transit, 71 N.Y.2d 198, 519 N.E.2d 326 (1988). Periodic Payment of Judgments. Article 50-A CPLR for Medical Malpractice suits and Article 50-B CPLR for tort actions generally are very ambiguous and cases interpreting statutes are essential to some under-

standing. Court of Appeals, "statute[s] [are] patently ambiguous." Rohring v. City of Niagara Falls, 84 N.Y.2d 60, 638 N.E.2d 62 (1994). Article 50-A requires judgments for future damages in excess of $500,000 be structured. See CPLR §5031. While Article 50-B requires judgments for future damages in excess of $250,000 be structured. See CPLR §5041. The Rohring case interprets statutes, "reduction for attorneys' fees" and "interest." See CPLR §§ 5031-5049. New appellate standards for review of verdicts. CPLR §§ 5501 (c), 5522 amended. Seat Belts. Non-use of seat belt must be pleaded and proven by defendant in mitigation of plaintiff's injuries by use of expert testimony. Spier v. Barker, 35 N.Y.2d 444, 323 N.E.2d 164 (1974). Vehicle & Traffic Law § 1229­c; Smith v. Kinsey, 50 A.D.3d 1456, 858 N.Y.S.2d 495 (4th Dep't 2008) (twenty-three-month-old child incapable of exercising due care to mitigate injury); Diehl v. Ogorewac, 836 F. Supp. 88 (E.D.N.Y. 1993) (statute requiring only drivers and front seat passengers to wear safety belts does not preclude assertion of defense with respect to rear seat passenger). Settlement. Verdict or claim of plaintiff against non-settling defendants is reduced by amount of settlement or in amount of released tortfeasors equitable share of damages. CPLR §4533-b. Applied even when jury found no fault as to defendant who paid settlement prior to verdict. Purcell v. Doherty, 102 Misc. 2d 1049, 424 N.Y.S.2d 991 (N.Y. Sup. Ct. 1980), aff'd, 80 A.D.2d 755, 437 N.Y.S.2d 993 (1st Dep't 1981), aff'd, 55 N.Y.2d 985, 434 N.E.2d 270 (1982). See also Gen. Oblig. Law § 15-108 and section here in "RELEASE." Plaintiff release to third party defendant (employer) and tortfeasor required dismissal of third party complaint and cross complaint as to contribution. Madaffari v. Wilmod Co., 96 Misc. 2d 729, 409 N.Y.S.2d 587 (N.Y. Sup. Ct. 1978). Prejudgment settlement with one defendant, where effect of settlement was postponed until after judgment, precluded settling defendant from seeking contribution from other defendants. Lettiere v. Martin, 62 A.D.2d 810, 406 N.Y.S.2d 510 (2d Dep't 1978), aff'd, 48 N.Y.2d 662, 397 N.E.2d 390 (1979). See also "RELEASE" and Gen. Oblig. Law § 15-108(c). Settlement by some defendants shall leave reduction of verdicts "as to each non-settling defendant, responsible only for its equitable share." No single formula or method, court decides within objectives of statute. Williams v. Niske, 81 N.Y.2d 437, 615 N.E.2d 1003 (1993). Defendant shall pay plaintiff within 21 days of tender (receipt) of proper closing papers, i.e. release, signed discontinuance, any required court order. Otherwise plaintiff may enter judgment, without further notice, including costs, disbursements, and interest. CPLR §5003-a.

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Generally defendant, as wrongdoer, may not claim plaintiff's proceeds of insurance policy in mitigation of damages, but exception is where defendant procured medical payment coverage for benefit of such injured plaintiff, and defendant alone paid premium, then defendant was entitled to benefit of such foresight and reduction of damages to extent paid by insurance policy. Moore v. Leggette, 24 A.D.2d 891, 264 N.Y.S.2d 765 (2d Dep't 1965). Searles v. Dalton, 299 A.D.2d 788, 751 N.Y.S.2d 84 (3d Dep't 2002); Grynbal v. Grynbal, 302 N.Y.S.2d 912, 32 A.D.2d 427 (2d Dep't 1969). Punitive. Since punitive (exemplary) damages are to punish defendant, and as warning to others, it would defeat public policy to allow insurance coverage. Drexel Burnham Lambert Group, Inc. v. Vigilant Ins. Co., 157 Misc.2d 198, 595 N.Y.S.2d 999 (N.Y. Sup. 1993) (New York public policy prohibits indemnification from an insurer for punitive damages); Padavan v. Clemente, 43 A.D.2d 729, 350 N.Y.S.2d 694 (2d Dep't 1973); Home Ins. Co. v. American Home Products Corp., 75 N.Y.2d 196, 550 N.E.2d 930 (1990). Punitive damages may be awarded in wrongful death actions so long as the decedent could have recovered punitive damages had she survived. E.P.T.L. § 5-4.3; Wartenberg v. Aetna U.S. Healthcare, Inc., 2 F. Supp. 2d 273 (E.D.N.Y. 1998); but see Garcia v. O'Keefe, 34 A.D.3d 334, 825 N.Y.S.2d 38 (1st Dep't 2006) (defendant's actions did not rise to level of maliciousness and wantonness to warrant punitive damages No punitive damages in wrongful death action as statute, E.P.T.L. § 5-4.3 allows only compensatory. Robert v. Ford Motor Co., 73 A.D.2d 1025, 424 N.Y.S.2d 747 (3d Dep't 1980), appeal dismissed, 49 N.Y.2d 1047 (1980). Court of Appeals set forth that insurance coverage for punitive damages is against public policy and policy provisions affording such coverage are void. Hartford Acc. & Indem. Co. v. Village of Hempstead, 48 N.Y.2d 218, 397 N.E.2d 737 (1979). Punitive not recoverable for breach of isolated insurance policy. Hebert v. State Farm Mut. Auto Ins. Co., 124 A.D.2d 958, 508 N.Y.S.2d 710 (3d Dep't 1986), appeal dismissed, 69 N.Y.2d 1038, 511 N.E.2d 89 (1987). Intoxicated driving insufficient in law for punitive damages. There must be a showing of wanton or reckless conduct. Sweeney v. McCormick, 159 A.D.2d 832, 552 N.Y.S.2d 707 (3d Dep't 1990). But see Rinaldo v. Mashayekhi, 185 A.D.2d 435, 585 N.Y.S.2d 615 (3d Dep't 1992) (driver intoxicated, and speeding in heavy traffic, punitive $7,500 allowed). DEATH See Law Digest Tables. Abatement and Survival. No cause of action for injury to person or property shall be lost because of death of person in whose favor cause of action existed or death

of person liable for injury, whether such person died before or after occurrence of injuries. E.P.T.L. §§ 11-3.2 (a), (b) (McKinney 2007). Death of Unborn Children. No wrongful death action for death of unborn child. See Endresz v. Friedberg, 24 N.Y.2d 478, 248 N.E.2d 901 (1969); see also Maher v. Yoon, 297 A.D.2d 361, 746 N.Y.S.2d 493 (2d Dep't 2002); Kaniecki v. Yost, 166 Misc. 2d 408, 631 N.Y.S.2d 500 (N.Y. Sup. 1995). No viable cause of action exists for wrongful death of unborn infant, but mother has action for mental and emotional upset attending stillbirths and father for funeral expense. See Endresz v. Friedberg, 24 N.Y.2d 478, 248 N.E.2d 901 (1969); see also Sheppard-Mobley v. King, 4 N.Y.3d 627 (2005); Broadnax/Fahey v. Gonzalez, 2 N.Y.3d 148 (2004); Damas v. Valdes, 921 N.Y.S.2d 114 (2d Dep't 2011) ("loss of a fetus" constitutes serious injure under New York No Fault Statute); Doyle v. Van Pelt, 730 N.Y.S.2d 417 (N.Y. Sup. 2001). Action for Wrongful Death. A decedent's personal representative has a cause of action for wrongful death. E.P.T.L. § 5-4.1. However, a decedent's estate has standing to commence a lawsuit on behalf of the decedent for personal injuries or property damage. Personal injury damages, such as pain and suffering, pre-impact terror, fear of impending death, are limited to those damages that accrue before death. E.P.T.L. § 11-3.3. E.P.T.L. § 5-4.3 outlines the damages a plaintiff is entitled to in a wrongful death action. There are five major components to damages in a wrongful death case: (a) The decedent's pre-impact terror; (b) the decedent's conscious pain and suffering; (c) pecuniary damages; (d) medical and funeral expenses; and; (e) loss of parental guidance for the children. Pre-Impact Terror. A decedent's estate, under New York law, is entitled to compensation for the decedent's anticipation, fear and distraught of his impending death. Courts have held that several seconds of pre-impact terror warrants, at best, a minimal award. Donofrio v. Montalbano, 240 A.D.2d 617, 659 N.Y.S.2d 484 (2d Dep't 1997). Speculation that a passenger perceived a grave injury during a roll-over accident was insufficient to support recovery based upon pre-impact terror. Kevra v. Vladagin, 96 A.D.3d 805, ___ N.Y.S.2d ___ (2d Dep't 2012). The Appellate Division oftentimes reduces jury awards for pre-impact terror. Emanuel v. Sheridan, 10 A.D.3d 46, 779 N.Y.S.2d 168 (1st Dep't 2007), court reduced a jury award for pre-impact terror from $2,000,000 to $100,000. Donofrio v. Montalbano, 240 A.D.2d 617, 659 N.Y.S.2d 484 (2d Dep't 1997), court reduced a jury award for pre-impact terror from $1,500,000 to $100,000. Klos v. New York City Transit

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Authority, 240 A.D.2d 635, 659 N.Y.S.2d 97 (2d Dep't 1997) court reduced a jury verdict award for pre-impact terror from $115,000 to $50,000 Lang v. Bouju, 245 A.D.2d 1000, 667 N.Y.S.2d 440 (3d Dep't 1997) court reduced a jury verdict award for pre-impact terror from $239,125 to $100,000. Conscious Pain and Suffering. A claim for conscious pain and suffering belongs to the estate of the deceased, rather than the distributees. E.P.T.L. § 11-3.2(b). See also Cragg v. Allstate Indemnity Corporation, 17 N.Y.3d 118, 950 N.E.2d 500 (2011). A decedent is entitled to fair compensation for conscious pain endured provided jury finds he was conscious prior to his death. See Maracallo v. Board of Educ. Of City of New York, 2 Misc. 3d 703, 769 N.Y.S.2d 717 (N.Y. Sup. 2003). Plaintiff has threshold burden of proving consciousness for at least some period of time following accident in order to justify award of damages for pain and suffering. Cummins v. County of Onondaga, 84 N.Y.2d 322, 642 N.E.2d 1071 (1994). Nonpecuniary loss allowed when there is "some level of awareness." McDougald v. Garber, 73 N.Y.2d 246, 536 N.E.2d 372 (1989). In a wrongful death action, the plaintiffs have the threshold burden of proving that decedent was conscious and in pain for at least some period of time following the incident which caused her death in order to justify an award of damages for pain and suffering. Kevra v. Vladagin, 96 A.D.3d 805, ___ N.Y.S.2d ___ (2d Dep't 2012); Stolarski v. Family Services of Westchester, Inc., 33Misc. 3d 607, 930 N.Y.S.2d 824 (Supreme Westchester, 2011). Pecuniary Damages. Pecuniary injuries suffered by distributes of estate are limited to loss of support, voluntary assistance, possible inheritance, and medical and funeral expenses incidental to death. See Parilis v. Feinstein, 429 N.Y.S.2d 165 (1980); Nussbaum v. Gibstein, 531 N.Y.S.2d 276 (2d Dep't 1988). Loss of Parental Guidance. Damages are award to a decedent's children for loss of parental guidance. Segal v. City of New York, 66 A.D.3d 865, 887 N.Y.S.2d 864 (2d Dep't 2009) ($200,000 awarded for past loss of parental guidance and $250,000 granted for future loss of parental guidance to decedent's children.); Carlson v. Porter, 53 A.D.3d 1129, 861 N.Y.S.2d 907 (4th Dep't 2008) (Children awarded $250,000 for past loss of parental guidance and $750,000 for future loss of parental guidance.) Loss of parental care or guidance due to wrongful death of parent may be considered within calculation of children's pecuniary injury. Taylor v. New York City Housing Authority, 35 Misc.3d 697, 940 N.Y.S.2d 844 (Supreme Kings, 2012).

Funeral Expenses. A decedent's estate is entitled to recover for payment of funeral expenses. See, E.P.T.L. 5-4.3(a). Speculation that passenger perceived grave injury or death during rollover accident was insufficient to support recovery based on "pre-impact" terror, in wrongful death suit. Kevra v. Vladagin, 96 A.D.3d 805, ___ N.Y.S.2d ___ (2d Dep't 2012). Without legally sufficient proof of consciousness following an accident, a claim for conscious pain and suffering must be dismissed. Id. Plaintiff's burden of proof. Plaintiff must prove by a preponderance of the evidence that the decedent had a legal obligation to support plaintiff or objective evidence that decedent would have volunteered to support plaintiff. Public Adm'r of Kings County v. U.S. Fleet Leasing, 159 A.D.2d 331, 552 N.Y.S.2d 608 (1st Dep't 1990). Award to mother, age 36 years, two minor children, loss of household services, and intention to work in future; $890,000 not excessive. Allen v. New York City Tr. Auth., 148 A.D.2d 563, 539 N.Y.S.2d 19 (2d Dep't 1989). Where injury causes death, an action may include claim for conscious pain and suffering of deceased from time of injury until death. E.P.T.L. §§ 11-3.2, 11-3.3; see also Nussbaum v. Gibstein, 539 N.Y.S.2d 289 (1988) (loss of enjoyment of life is not a separate and distinct element of damages from conscious pain and suffering); Mueller v. Elderwood Health Care, 2011 N.Y. Slip Op. 50555(U) (Erie County April 11, 2011) (discussing various awards for conscious pain and suffering). Award of $300,000 for five hours conscious and severe pain before death is upheld. See Van Norden v. Kliternick, 178 A.D.2d 167, 577 N.Y.S.2d 27 (1st Dep't 1991). Claims for wrongful death limited to fair and just compensation for pecuniary loss resulting from decedent's death. See E.P.T.L. § 5-4.3(a); Pesante v. Mundell, 37 A.D.3d 1173, 829 N.Y.S.2d 390 (4th Dep't 2007); Public Admin., Kings County v. U.S. Fleet Leasing, 159 A.D.2d 331, 552 N.Y.S.2d 608 (1st Dep't 1990) (legal obligation to support beneficiary is relevant for calculating pecuniary awards for wrongful death actions; regardless if decedent would have volunteered to do so). Wrongful death judgment carries interest from date of death. E.P.T.L. § 5-4.3. Elements of damage are: age, health, life expectancy, earning ability and income, age and number of dependents, etc. Dimitroff v. State, 171 Misc. 635, 13 N.Y.S.2d 458 (N.Y. Ct. Cl. 1939); Grasso v. State, 177 Misc. 690, 31 N.Y.S.2d 398 (N.Y. Ct. Cl. 1941), aff'd, 264 A.D. 745, 34 N.Y.S.2d 440 (3d Dep't 1942), aff'd, 289 N.Y. 552, 43 N.E.2d 530 (1942).

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Plaintiff in a death action is not held to as high a degree of proof. It is sufficient to prove facts from which negligence might reasonably be inferred. See Archie v. Todd Shipyards Corp., 65 A.D.2d 699, 410 N.Y.S.2d 69 (1st Dep't 1978). Inapplicable where death not caused by the accident. Jordan v. Parrinello, 144 A.D.2d 540, 534 N.Y.S.2d 686 (2d Dep't 1988). Awards in wrongful death suits shall reflect decedent's post-tax income. E.P.T.L. § 5-4.3. Presumption from unexplained absence. E.P.T.L. § 2-1.7(a) provides that if a person is absent for three years and after a diligent search has not been seen or heard from and whose absence is not satisfactorily explained shall be presume death three years after the date of the unexplained absence. The fact that a person was exposed to specific peril of death may be a sufficient basis for determining at any time after such exposure that he/she has died less than three years after his/her absence commenced. E.P.T.L. §2-1.7(b). Circumstantial evidence established missing wife's death due to "specific peril" prior to three year period when evidence illustrated that she was going to stop at the World Trade Center on September 11, 2001 and that as a physician would have volunteered to aid injured persons. See Matter of Philip v. Lieberman, 50 A.D.3d 81, 851 N.Y.S.2d 141 (1st Dep't 2008); see also In Re Estate of Cosentino, 177 Misc. 2d 629 (N.Y. Cir. Ct. 1998). Accrual date for limitations is date of death and not date of appointment of decedent's representative. See Hernandez v. New York City Health & Hospital, 169 A.D.2d 535, 564 N.Y.S.2d 387 (1st Dep't 1991), aff'd, 585 N.E.2d 822, 578 N.Y.S.2d 510 (1991). The statute of limitations does not commence until the plaintiff is in a position to present the defendant with adequate proof of death. See Gardner v. Northwestern Mut. Life Ins. Co., 272 N.Y. 592. (1936). Accrual date for limitations is date of death and not date of appointment of decedent's representative. See, Hernandez v. New York City Health & Hospital, 169 A.D.2d 535, 564 N.Y.S.2d 387 (1st Dep't 1991), aff'd 585 N.E.2d 822, 578 N.Y.S.2d 510 (1991). DISABILITY See "ACCIDENT AND HEALTH INSURANCE." Disability benefits are temporary cash benefits paid to an eligible wage earner, when he/she is disabled by an off the job injury or illness. The Disability Benefits Law, N.Y. Workers' Comp. Law Article 9, provides weekly cash benefits to replace, in part, wages lost due to injuries or illnesses that do not arise out of or in the course of employment. See Workers' Compensation Law §204. Disability benefits are also paid to an unemployed worker to replace unemployment insurance benefits lost be-

cause of illness or injury See Workers Compensation Law §207. Pursuant to N.Y. Workers' Comp. Law §205, benefits are paid for a maximum of 26 weeks of disability during 52 consecutive weeks. For employed workers, there is a 7-day waiting period for which no benefits are paid. Benefit rights begin on the eighth consecutive day of disability. See N.Y. Workers' Compensation Law §208. An employer must supply a worker who has been disabled more than seven days with a Statement of Rights under the Disability Benefits Law within five days of learning that the worker is disabled. See N.Y. Workers' Comp. Law §229[2]. Disability insurance policies are given practical application consistent with the terms of the policy. The terms of the policy should be given most favorable construction to the insured's interests. Blasbalg v. Massachusetts Casualty Insurance Company, 962 F. Supp. 362 (E.D.N.Y. 1997). Total disability benefits due to sickness, physicians' occupational disability policy required only that his "sickness first manifest itself while this policy [was] in force" and did not additionally require that insured be engaged in his regular occupation at time of the claim. Goldberger v. Paul Revere Life Insurance Co., 165 F.3d 180 (2nd Cir. 1999). Insurer could not deny an insured disability benefits because insured was temporarily unemployed at the onset of insured's disability. Disability policy was ambiguous as to whether the policy excluded coverage for unemployed insureds and where insured was attempting to return to occupation in which she was "regularly engaged" when insured was injured. Burriesci v. Paul Revere Life Insurance Co., 255 A.D.2d 993, 679 N.Y.S.2d 778 (4th Dep't 1998). Inability to work due to sickness was essential element of term "disability" under long term disability policy which stated that employee is eligible for benefits when he is completely prevented from performing duties of his occupation or employment. Consequently, former employee who lost no work due to his anxiety symptoms prior to time he was terminated was not entitled to benefits. Kunstenaar v. Connecticut General Life Insurance Co., 902 F.2d 181 (2nd Cir. 1990). Proof of condition precedent to right to benefits. New York Life Ins. Co. v. Chanson, 154 Misc. 643, 278 N.Y.S. 220 (Sup. Ct. N.Y. 1934); Morrison v. New York Life Ins. Co., 154 Misc. 639, 278 N.Y.S. 55 (N.Y. Sup. Ct. 1935) aff'd 247 A.D. 715, 285 N.Y.S. 644 (1st Dep't 1936); Mutchnick v. John Hancock Mut. Life Ins. Co., 157 Misc. 598, 284 N.Y.S. 565 (N.Y. Mun. Ct. 1935).

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Insured needs to prove that she was totally disabled from performing the essential duties of her occupation and is not required to prove what caused her disabling condition. Harris v Provident Life & Accident Insurance Co., 166 F. Supp. 2d 733, affirmed in part and vacated in part, 310 F.3d 73 (N.D.N.Y. 2001). Disability Claims Denied. One designated self "retired" not entitled to recover for injury to hand caused by buzz saw. Knapp v. Preferred, 6 N.Y.S. 57 (Sup. Ct. N.Y. 1889), reargument denied, 8 N.Y.S. 946, appeal dismissed, 130 N.Y. 635, 29 N.E. 150 (1891). Physician kicked in face by lunatic, resulting in paralysis thirty-six days later, not entitled to recovery under policy insuring against accidents immediately and wholly disabling him. Hagadorn v. Masonic Acc. Assn., 59 A.D. 321, 69 N.Y.S. 831 (3d Dep't 1901). Same in case of insured who continued regular occupation for five weeks. Johnson v. Travelers Ins. Co., 269 N.Y. 401, 199 N.E. 637 (1936). Insured gave occupation as "ice-man, proprietor," although he performed manual labor of delivery. Held totally disabled although able to direct business during disability. Neafie v. Manufacturers' Accid. Indem. Co., 8 N.Y.S. 202 (Sup. Ct. N.Y. 1889). Under policy indemnifying against total disability resulting from external, violent and accidental injuries, physician injured by fall entitled to recover, despite occasionally permitted patients to come to bedside, made some examinations, and prescribed for them, but never left his bed. Wolcott v. United Life & Accident Ins. Ass'n., 8 N.Y.S. 263 (Sup. Ct. N.Y. 1889). Attempt of insured to work for two weeks following injury, held not to defeat right to recover under policy indemnifying against injuries which "immediately, continuously and wholly disabled and prevent the insured from the date of the accident from performing every duty pertaining to any business or occupation." Harasymczuk v. Massachusetts Accident Co., 127 Misc. 344, 216 N.Y.S. 97 (Sup. Ct. N.Y. 1926). Permanent total disability from tuberculosis not established. Herbert v. Metropolitan Life Ins. Co., 39 N.Y.S.2d 567 (Sup. Ct. Broome County 1943). Disability is not permanent if insured may alleviate or control it by standard form of treatment not inherently dangerous. Papas v. Equitable Life Assur. Soc'y, 265 A.D. 128, 37 N.Y.S.2d 811 (2d Dep't 1942) (diabetic refused insulin therapy). Cited by dissent Mondello v. Beekman, 78 A.D.2d 824, 433 N.Y.S.2d 439 (1st Dep't 1980) (Lupiano, J., dissenting), aff'd, 56 N.Y.2d 513, 449 N.Y.S.2d 963 (1982). Insured not entitled to benefits where he unreasonably refuses to submit to operation advised by his own doctor. Finkelstein v. Metropolitan Life Ins., 152 Misc. 439, 273 N.Y.S. 629 (1st Dep't 1934). An insured disabled by felonious assault who recovered temporarily be-

fore disability recurred was held not entitled to benefit for second period of disability under policy provision requiring continuous disability from date of accident. Irwin v. Travelers' Ins. Co., 243 A.D. 377, 277 N.Y.S. 724 (2d Dep't 1935). Same holding where disabling heart condition developed 3 weeks after fall. McGrail v. Equitable Life Assur. Soc'y, 263 A.D. 439, 33 N.Y.S.2d 742 (3d Dep't 1942), rev'd on other grounds, 292 N.Y. 419, 55 N.E.2d 483 (1944), reargument denied, 293 N.Y. 663, 56 N.E.2d 258 (1944). Heart disease. Shabotzky v. Equitable Life Assur. Soc'y, 257 A.D. 257, 12 N.Y.S.2d 848 (1st Dep't 1939), appeal and reh'g denied, 257 A.D. 957, 14 N.Y.S.2d 279 (1st Dep't 1939). Heart trouble, arteriosclerosis. Starr v. Equitable Life Assur. Soc'y, 257 A.D. 261, 12 N.Y.S.2d 953 (1st Dep't 1939). Removal of brain tumor. Weisser v. Travelers Ins. Co., 258 A.D. 755, 15 N.Y.S.2d 430 (2d Dep't 1939). Self-inflicted gunshot wound, no recovery. Fanti v. Travelers Ins. Co., 264 A.D. 724, 34 N.Y.S.2d 34 (2d Dep't 1942), appeal denied, 264 A.D. 779, 35 N.Y.S.2d 726 (2d Dep't 1942), aff'd, 290 N.Y. 782, 50 N.E.2d 107 (1943) After-effects of childhood manipulation of club feet. Reiser v. Metropolitan Life Ins. Co., 262 A.D. 171, 28 N.Y.S.2d 283 (1st Dep't 1941), aff'd, 289 N.Y. 561, 43 N.E.2d 534 (1942). Where insured able to engage in profitable employment though unable to follow usual occupation, not entitled to disability benefits. Garms v. Travelers' Ins. Co., 242 A.D. 230, 273 N.Y.S. 39 (1st Dep't 1934), 266 N.Y. 446, 195 N.E. 147 (1934). Or where, although insured could not follow regular profession, could engage in some gainful employment. Waldman v. Mutual Life Ins. Co., 252 A.D. 448, 299 N.Y.S. 490 (2d Dep't 1937). Salesman becoming deaf, held not permanently and totally disabled. Fuchs v. Metropolitan, 253 A.D. 665, 3 N.Y.S.2d 707 (1st Dep't 1938). Claims Allowed. Under policy insuring against accidents immediately, continuously and wholly disabling, physician permitted to recover where despite serious leg injury he visited patient on day after accident but confined to bed for several weeks thereafter. Brendon v. Traders' & Travelers' Accident Co. of New York, 84 A.D. 530, 82 N.Y.S. 860 (1st Dep't 1903). Insured afflicted with incurable Buerger's Disease, requiring constant care and treatment for eight hours day was "totally and permanently disabled" and "prevented thereby from engaging in any occupation or performing any work for compensation of financial value." Halperin v. Equitable Life Assur. Soc'y, 125 Misc. 422, 210 N.Y.S. 720 (N.Y. Mun. Ct. 1925). Benefits recoverable for disability sustained prior to surrender, cancellation or forfeiture. Magaliff v. New

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York Life Ins. Co., 247 A.D. 810, 286 N.Y.S. 303 (2d Dep't 1936) aff'd 272 N.Y. 521, 4 N.E.2d 428 (1936). Insured entitled to benefits for disability incurred prior to, but not established until after, cancellation of disability provisions at his request. Gross v. Equitable Life Assur. Soc'y, 276 N.Y. 517, 12 N.E.2d 456 (1937). Incurable varicose ulcer on leg, held not total disability of building appraiser. Jersey v. Travelers Ins. Co., 163 Misc. 25, 294 N.Y.S. 938 (Sup. Ct. N.Y. 1936), aff'd, 250 A.D. 768, 294 N.Y.S. 940 (2d Dep't 1937). "Permanent" and "presumably permanent" distinguished. Finkelstein v. Equitable Life Assur. Soc'y, 256 A.D. 593, 11 N.Y.S.2d 135 (2d Dep't 1939), aff'd, 281 N.Y. 690, 23 N.E.2d 19 (1939). Tuberculosis as disability. Turczynski v. Hancock Mut. Life Ins. Co., 245 A.D. 903, 282 N.Y.S. 380 (3d Dep't 1935), aff'd, 271 N.Y. 573, 3 N.E.2d 191 (1936); Silverstein v. Prudential Ins. Co., 246 A.D. 359, 286 N.Y.S. 211 (3d Dep't 1936). Butcher suffering from chronic osteomyelitis, held totally disabled. Mintz v. Equitable Life Assur. Soc'y, 249 A.D. 914, 292 N.Y.S. 751 (3d Dep't 1937) aff'd 276 N.Y. 546, 12 N.E.2d 569 (1937). FINANCIAL RESPONSIBILITY LAW See "AUTOMOBILES." "Proof of financial responsibility shall mean proof of ability to respond in damages for liability thereafter incurred, arising out of the ownership, maintenance or use of a motor vehicle, in the amount of" $25,000.00 "because of bodily injury to or" $50,000.00 "because of death of any one person, in the amount of" $50,000.00 "because of bodily injury to or" $100,000.00 "because of death of two or more persons in any one accident, and in the amount of" $10,000.00 "because of injury to or destruction or property in any one accident." See N.Y. Veh & Traf. Law § 341. Required terms in "motor vehicle liability policy." N.Y. Veh. & Traf. Law § 345. Vehicles with passenger fares. N.Y. Veh. & Traf. Law § 370 (1). Motor Carriers. New York Transportation Law responsible for regulating transportation in New York (Article 4 provisions relating to common carrier; Article 5 ­ the powers of the commissioner in respect to common carriers; Article 6 ­ Matters relating to all motor carriers; Article 7 ­ Carriers of passengers by motor vehicles; Article 8 ­ Carriers of property by motor vehicles). Public Service Commission shall prescribe rules and regulations governing filing and approval of surety bonds, policies of insurance, qualifications as self-insurers or other securities or agreements conditioned to pay final judgments against carriers by reason of foregoing.

Law requiring Public Service Commission endorsement to policy covering bus does not require financial responsibility to be established by judgment other than against the carrier itself; insurer of lessor of bus which was involved in accident while being driven on a run franchised to lessee of bus driver was obligated to defend the owner of the bus and its driver employee. Kansas City Fire v. Hartford Ins. Group, 82 Misc. 2d 109, 368 N.Y.S.2d 791 (Sup. Ct. Erie County 1975). Interstate motor carriers subject to Federal jurisdiction. See 49 U.S.C.S. § 13501. FIRE INSURANCE Appraisal. An insurer must consider all evidence of appraisal value before making a determination of value. Gervant v. New England Fire Ins., 306 N.Y. 393, 118 N.E.2d 574 (1954). Appraisal made or proof of loss filed without mortgagee's knowledge, not binding on mortgagee. Syracuse Sav. Bank v. Yorkshire Ins. Co., 301 N.Y. 403, 94 N.E.2d 73 (1950), reh'g denied, 301 N.Y. 731, 95 N.E.2d 408 (1950). Assignment-Consent of insurer. Before loss, contract is personal as to insured, and may not be assigned without consent of insurer. After the loss occurred, the policy can be assigned "regardless of the condition of the policy." Krauss v. Central Insurance, 40 N.Y.S.2d 736, 741 (Sup. Ct. New York County, 1943);. BeckBrown Realty Co. v. Liberty Bell Ins. Co., 137 Misc. 263, 241 N.Y.S. 727 (Sup. Ct. Kings County 1930). Purchaser of real property cannot recover on policy assigned to him without insurer's consent. Greentaner v. Connecticut Fire Ins. Co., 228 N.Y. 388, 127 N.E. 249 (1920). Binder. Description of the location of property is a warranty, the truth of which is a condition precedent to liability on the part of the insurer. Am. Surety Co. v. Patriotic Assur. Co., 242 N.Y. 54, 150 N.E. 599 (1926), reh'g denied, 243 N.Y. 553, 154 N.E. 602 (1926); but see Shapiro v. Am. Eagle, 94 N.Y.S.2d 137 (Sup. Ct. N.Y. 1949), rev'd, 278 A.D. 694, 103 N.Y.S.2d 454 (1st Dep't 1951) (Court held that a mistake in the policy regarding the description of the insured property, caused by an error solely by the insurance agent, could be ground for reformation of the insurance contract to correct the error and provide insurance coverage.) Burning or charring of electric wire not covered. Baron Corp. v. Piedmont Fire Ins. Co., 166 Misc. 69, 1 N.Y.S.2d 713 (1st Dep't 1937). Co-insurance. Eighty percent co-insurance clause not inconsistent with requirements of standard policy.

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History of rule. Aldrich v. Great Am. Ins. Co., 195 A.D. 174, 186 N.Y.S. 569 (1st Dep't 1921). Discovery. Policyholder's refusal to submit to examination or answer pertinent questions, on grounds that he was under criminal investigation for arson and that submitting himself to questioning by the insurer would interfere with his constitutional rights still constitutes breach of policy terms and bar to recovery thereon. Dyno-Bite, Inc. v. Travelers Companies, 80 A.D.2d 471, 439 N.Y.S.2d 558 (4th Dep't 1981); Gross v. U.S. Fire Ins., 71 Misc. 2d 815, 337 N.Y.S.2d 221 (Sup. Ct. Kings County 1972). Excess Policies. Mutual excess policies, neither policy had clause making one excess over other excess, each insurer was required to contribute equally. State Farm Insurance Companies v. Travelers Insurance Company, 300 A.D.2d 571, 752 N.Y.S.2d 374 (2d Dep't 2002), leave to appeal denied, 1 N.Y.3d 501, 807 N.E.2d 288, 775 N.Y.S.2d 238 (2003); Kansas City Fire v. Hartford Ins., 57 N.Y.2d 920, 442 N.E.2d 1271 (1982), reh'g denied, 58 N.Y.2d 824, 445 N.E.2d 657 (1983), motion denied, 58 N.Y.2d 898, 447 N.E.2d 78 (1983). Explosions. Insurers were entitled to directed verdict when policy contained a clause barring recovery for damage caused by explosion. Record established that an explosion occurred and there was no evidence what property if any was damaged by fire instead of explosion. Nasello v. Home Ins. Co., 277 N.Y. 632, 14 N.E.2d 196 (1938). Where policy contained provision excluding damage caused by explosion, explosion damage covered only when preceded and caused by fire. Jefferson Terminal Corp. v. Home Ins. Co., 180 Misc. 30, 42 N.Y.S.2d 392 (Sup. Ct. N.Y. 1942), aff'd, 266 A.D. 651, 40 N.Y.S.2d 862 (1st Dep't 1943), appeal denied, 266 A.D. 720, 42 N.Y.S.2d 917 (1st Dep't 1943). Fixtures. Motion picture apparatus in a theater was deemed a fixture of the theater and was covered by the policy. Emmett v. American, 194 Misc. 529, 88 N.Y.S.2d 163 (N.Y. City Ct. 1949), aff'd, 198 Misc. 193, 100 N.Y.S.2d 835 (2d Dep't 1950). Friendly Fires. "Friendly fire" for purposes of fire policy is fire under control and fire beyond control is "hostile", whether in or out of its proper place. Barcalo Manufacturing Co. V. Firemen's Mut. Ins. Co.,24 A.D.2d 55, 263 N.Y.S.2d 807 (4th Dep't 1965). Fire confined to oil-burning furnace was "friendly fire," as distinguished from "hostile fire," and insured could not recover on fire policies for damages resulting when flames shot out of chimney and caused rooms to become filled with smoke and soot. Davis v. Law Union & Rock Ins. Co., 166 Misc. 75, 1 N.Y.S.2d 344 (N.Y. Mun. Ct. 1937).

Hostile Fires. Leaking oil ignited outside of furnace covered. Giambalvo v. Phoenix Ins. Co., 178 Misc. 887, 36 N.Y.S.2d 598 (N.Y. City Ct. 1942). Miscellaneous. Smoke and soot damage from flames confined to furnace not covered. Davis v. Law Union & Rock Ins. Co., 166 Misc. 75, 1 N.Y.S.2d 344 (N.Y. Mun. Ct. 1937), aff'd, 194 Misc. 176, 88 N.Y.S.2d 110 (2d Dep't 1938). Proof of Loss. Fraud or willful misrepresentation of material fact in the proof of loss voids policy. Werber Leather Coat Co. v. Niagara Falls Ins. Co., 254 A.D. 298, 5 N.Y.S.2d 1 (2d Dep't 1938). Reformation. Permitted, after loss, to show correct location of property due to mutual mistake of both parties, Northeastern v. International Ins. Co., 265 N.Y. 574, 193 N.E. 326 (1934); Shapiro v. Am. Eagle Fire Ins. Co. of N.Y., 94 N.Y.S.2d 137 (Sup. Ct. 1949), rev'd on other grounds, 278 A.D. 694, 103 N.Y.S.2d 454 (1st Dep't 1951). Severable Contracts. A policy covering different classes of property, each separately valued, is severable, and a breach of warranty as to one class does not affect the policy to the others, unless so intended. Donley v. Glens Falls Ins. Co., 184 N.Y. 107, 76 N.E. 914 (1906). Policy covering realty and personalty held divisible. Palma v. National Fire Ins. Co. of Hartford, 246 A.D. 488, 284 N.Y.S. 654 (4th Dep't 1935), motion denied, 249 A.D. 796, 293 N.Y.S. 499 (4th Dep't 1936). Smoke and Soot. See "Miscellaneous." FOSTER CARE When a child is placed in custodial setting such as foster care, foster parents are not considered employees of the county and the county will not be held vicariously liable for their acts. Blanca C. v. County of Nassau, 103 A.D.2d 524, 480 N.Y.S.2d 747 (2d Dep't 1984), aff'd, 65 N.Y.2d 712, 481 N.E.2d 545 (1985), citing Bartels v. County of Westchester, 76 A.D.2d 517, 429 N.Y.S.2d 906 (2d Dep't 1980) But see McCabe v. Dutchess County, 72 A.D.3d 145, 895 N.Y.S.2d 446 (2d Dep't 2010). Agencies and counties may be sued for negligent supervision for children in foster care. Id. (discussing various elements needed to sue agency or county). Liability found against a county that undertook to care for an infant and knew of the incompetence of the foster parents to whom it entrusted an infant. see also Barnes v. County of Nassau, 108 A.D.2d 50, 487 N.Y.S.2d 827 (2d Dep't 1985) (duty to place children in foster homes under proper safeguards, to supervise children while in foster homes and to remove them from foster homes when necessary). The standard is one of reasonable care. Barnes, 108 A.D.2d at 54, 487 N.Y.S.2d at 830; An---- For Current Listings access www.ambest.com/legal----

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drews v. County of Otsego, 112 Misc. 2d 37, 446 N.Y.S.2d 169 (Otsego Sup. Ct. 1982). Since foster parents to whom county entrusts children are independent contractors, county is not vicariously liable for their acts or omissions. Blanca C., 65 N.Y.2d at 713, 481 N.E.2d at 546. Once child is placed in foster home, it is no longer feasible for county to provide day-to-day supervision of child. Hence, foster parent is contractually obliged to provide constant reasonable care and supervision. Andrews, supra, 112 Misc. 2d at 38, 446 N.Y.S.2d at 171. FRAUD See "AGENTS AND BROKERS"; "FIRE INSURANCE, Proof of loss"; "REPRESENTATIONS AND WARRANTIES." Under common law, a cause of action for fraud has five elements: 1) material misrepresentation or omission of fact, 2) made with knowledge of its falsity, 3) with intent to defraud, and 4) reasonable reliance on the plaintiff's part, 5) that causes damage to plaintiff. N.Y. City Trans. Auth. v. Eisen, 276 A.D.2d 78, 715 N.Y.S.2d 232 (1st Dep't 2000); Carbon Cap. Mangt., LLC v. Am. Exp. Co., 88 A.D.3d 933, 932 N.Y.S.2d 488 (2d Dept. 2011); MBIA Ins. Co. v. GMAC Mortgage LLC, 30 Misc. 3d 856, 914 N.Y.S.2d 604 (Sup. Ct. New York Co. 2010). A plaintiff must allege each element of fraud with particularity and must support each element with allegation of fact. CPLR §3016(b); Fink v. Citizens Mortgage, 148 A.D.2d 578, 539 N.Y.S.2d 45 (2d Dep't 1989); TIA of N.Y. Inc. v. Stanley Realty, LLC, 2012 WL 1642733 (New York County Apr. 16, 2012) (trial order). Generally, a party induced by fraud to enter a contract may either rescind the contract or sue for damages. McNaught v. Equitable Life Assur. Society, 136 A.D. 774, 121 N.Y.S. 447 (2d Dep't 1910). In New York, a party may only avoid an insurance contract if the other party makes a statutorily defined "material misrepresentation." N.Y. Ins. Law. § 3105; Federal Ins. Co. v. Kozlowski, 18 A.D.3d 33, 792 N.Y.S.2d 397 (1st Dep't 2005). If an insurer accepts premiums after learning of its right to rescind, its right is waived. Security Mutual Life Ins. Co. v. Rodriguez, 65 A.D.3d 1, 880 N.Y.S.2d 619 (1st Dep't 2009); U.S. Life Ins. Co. in City of New York v. Blumenfeld, 92 A.D.3d 487, 938 N.Y.S.2d 84 (1st Dep't 2012). An insurance agent or broker does not commit fraud in procuring a policy even if he or she fails to disclose to an insured an exclusive dealing contract or a contingent commission agreement, unless a "special re-

lationship" exists. Cathy Daniels, Ltd. v. Weingast, 91 A.D.3d 431, 936 N.Y.S.2d 44 (1st Dep't 2012); Cuomo v. Liberty Mutual Ins. Co., 52 A.D.3d 378, 861 N.Y.S.2d 294 (1st Dep't 2008); Wender v. Gilberg Agency Inc., 304 A.D.2d 311, 757 N.Y.S.2d 286 (1st Dep't 2003). A special relationship exists where there is privity of contract or a relationship "sufficiently approaching privity." Merchants Ins. Co. v. Gage Agency Inc., 21 A.D.3d 1332, 801 N.Y.S.2d 859 (4th Dep't 2005). Criminal insurance fraud is defined by New York Penal Law § 176.00 et seq. GUEST CASES See "AUTOMOBILES, no guest statute." HOSPITAL See also "MEDICAL MALPRACTICE"; "RELEASE." Liens. Created by N.Y. Lien Law § 189. Strict compliance required. Ferguson v. Ruppert, 166 Misc. 427, 1 N.Y.S.2d 967 (Sup. Ct. N.Y. 1938). Insurer liable to hospital where it failed to honor assignment executed by injured third party. Reddy v. Zurich Gen. Accid. & Liab. Ins. Co., 171 Misc. 69, 11 N.Y.S.2d 88 (Sup. Ct. N.Y. County 1939). Hospital has no lien if settlement or recovery less than $300. N.Y. Lien Law § 189(6); Rookus v. Janowski, 177 Misc. 1075, 32 N.Y.S.2d 947 (Sup. Ct. Monroe County 1942); Goldwater v. Mendelson, 170 Misc. 422, 8 N.Y.S.2d 627 (N.Y. Mun. Ct. 1938). 1950 amendment permits court determination of validity and amount of lien. See N.Y. Lien Law § 189(6a) (2010). Party liable for hospital lien may examine hospital records as to treatment, maintenance and care of patient. N.Y. Lien Law § 189(5) (McKinney 2007); Matter of Larchmont Gables, Inc., 188 Misc. 164, 64 N.Y.S.2d 623 (Sup. Ct. Westchester County 1946). Under respondeat superior, liability for agents and employees applied to hospitals and abolished "MedicalAdministrative" Rule. Bing v. Thunig, 2 N.Y.2d 656, 143 N.E.2d 3 (1957). See "MALPRACTICE." No Warranty. Transfusion of impure blood is not sale of blood by hospital to patient; it is only incidental to hospital service, and therefore, no breach of implied warranty by hospital. Perlmutter v. Beth David Hosp., 308 N.Y. 100, 123 N.E.2d 792 (1954), reargument denied, 308 N.Y. 812, 125 N.E.2d 869 (1955). However, hospital may be liable for improper administration or failure to use reasonable precautions to eliminate or minimize use of infected blood. Davidson v. Hillcrest Gen. Hosp., 40 A.D.2d 693, 336 N.Y.S.2d 296 (2d Dep't 1972).

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HUSBAND AND WIFE See also "INFANTS"; "NEGLIGENCE." Causes of Action. Spouses have causes of action against each other for any wrongful or tortious act causing injury. Gen. Oblig. See NY Gen. Oblig. Law §3-313 (2) (McKinney 2011); Chen v. Fischer, 12 A.D.3d 43, 783 N.Y.S.2d 394 (2d Dep't 2004) (noting that New York Courts have abolished interspousal immunity for torts); People v. Morton, 132 N.Y.S.2d 302, 123 N.E.2d 790 (2d Dep't 1954). Liability Coverage. Statutory exclusion of spouse in liability coverage where suit is by other spouse, unless expressly provided for in policy, applies only in direct suits, where injured spouse must prove culpable conduct, i.e., negligence, of insured spouse, but not in counterclaims or impleaders. N.Y. Ins. Law § 3420(g) (McKinney 2009); See also Yankelevitz v. Royal Globe Ins. Co., 59 N.Y.2d 295, 453 N.E.2d 524 (1983); Mandels v. Liberty Mut. Ins. Co., 45 N.Y.2d 455, 382 N.E.2d 762 (1978); Hanozas v. Gramas, 91 Misc. 2d 520, 398 N.Y.S.2d 204 (Supreme Court, Nassau County, 1977); State Farm. Mut. Auto. Ins. Co. v. Ground, 243 AD 2d 557, 662 N.Y.S.2d 845 (2d Dep't 1997); Suba v. State Farm Fire & Cas. Co., 114 A.D. 2d 280, 498 N.Y.S.2d 656 (4th Dep't 1986); Purpose of statute was to protect carriers against collusive suits between spouses. See United States Fid. & Guar. Co. v. Franklin, 74 Misc. 2d 506, 344 N.Y.S.2d 251 (Westchester County 1973), aff'd, 43 A.D.2d 844, 352 N.Y.S.2d 1009 (2d Dep't 1974); see also Galpern v. Gen. Motors. Corp., 102 Misc. 2d 975, 425 N.Y.S.2d 1008 (Supreme Court, New York County 1980). Loss of Consortium. Represents the marital partners' interest in the continuance of the martial relationship as it existed before accident. Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 239 N.E.2d 897 (1968) (holding that wife shall have full cause of action for loss of consortium due to negligent personal injuries to husband). See also Buckley v. National Freight, Inc., 90 N.Y.2d 210, 681 N.E.2d 1287 (1997). IMPLEADER See "CONTRIBUTION"; "INDEMNITY"; "NEGLIGENCE." Third party suits against additional third party defendants permitted. See "NEGLIGENCE." "The rule of apportionment...was not intended to and should not be read to vary the substantive duties..." Rogers v. Dorchester Assoc., 32 N.Y.2d 553, 564, 300 N.E.2d 403 (1973); Dole v. Dow Chem. Co., 30 N.Y.2d 143, 282 N.E.2d 288(1972) (superseded by N.Y. Gen. Oblig. Law § 15-108); see also CPLR Article 14-A. Plaintiff's em-

ployer can be impleaded by defendant, if "grave injury" as defined in N.Y. Workers' Comp. Law §11 (McKinney 2007). Workers' compensation benefits paid are lien against any settlement or verdict. N.Y. Workers' Comp. Law §29. Plaintiff is limited to assets (coverage) of his primary defendant, even when liability over is established and third party defendant has larger assets. Klinger v. Dudley, 41 N.Y.2d 362, 361 N.E.2d 974 (1977), rev'd by Reich v. Manhattan Boiler & Equip. Corp., 91 N.Y.2d 772, 698 N.E.2d 939 (1998). Impleader can be used to interpose claims for more than indemnity, and can seek greater damages than plaintiff is seeking against primary defendant. George Cohen Agency v. Donald S. Perlman Agency, 51 N.Y.2d 358, 414 N.E.2d 689 (1980). Whether third party defendant can remove to Federal Court is solely for that court. Id. at 367. INDEMNITY See also "IMPLEADER." General. Indemnification differs from contribution in that indemnity generally refers to full reimbursement, whereas contribution refers to ratable or proportional reimbursement. McFall v. Compagnie Maritime Belge, 304 N.Y. 314, 107 N.E.2d 463 (1952). Defendant can cross-complain against co-defendant or implead a third party for indemnification from that party on the basis of a contract or common law right. Menorah Nursing Home v. Zukov, 153 A.D.2d 13, 548 N.Y.S.2d 702 (2d Dep't 1989). Common-Law Indemnity. Pursuant to common-law indemnity an indemnitee can shift liability to codefendant or third-party that who is responsible for the wrongdoing if the indemnitee is free from negligence. Trump v. N.Y. Hous. Agency, 307 A.D.2d 891, 764 N.Y.S.2d 17 (1st Dep't 2003). To establish a claim for common-law indemnification, `the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident' Perri v. Gilbert Johnson Enterprises, Ltd., 14 A.D.3d 681, 790 N.Y.S.2d 25 (2d Dep't 2005). In order to prevail on a common-law indemnity claim indemnitee must establish that indemnitor was actively negligent, or that indemnitor exercised actual supervision or control over plaintiff's work. Muriqi v Charmer Industries, Inc., 2012 N.Y. Slip Op. 04828 (1st

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Dep't 2012) see also McCarthy v. Turner Construction, Inc. 17 N.Y.3d 369, 378, 953 N.E.2d 794 (2011). "While the defendants third-party plaintiffs and the third-party defendant both allegedly violated duties to the plaintiffs in the main action, they did not violate the same duty or share responsibility for the same injury, and the defendants third-party plaintiffs are not being compelled to pay damages for the wrongful act of the third-party defendant." Lovino, Inc. v. Lavallee Law Firm, 2012 N.Y. Slip Op. 04977 (2d Dep't 2012). Vicarious liability does not constitute negligence and therefore will not interfere with claim for common law indemnification. Nesterczuk v. Goldin Mgt., Inc., 77 A.D.3d 800, 911 N.Y.S.2d 367 (2d Dep't 2010); Esteva v. Nash, 55 A.D.3d 474, 866 N.Y.S.2d 186 (1st Dep't 2008). CPLR Article 16 limits the amount that can be recovered under common law indemnity when a tortfeasor's liability is 50% or less. Frank v. Meadowlakes Dev. Corp., 6 N.Y.3d 687, 849 N.E.2d 938 (2006). Contractual Indemnity. It is well settled that a party may protect itself from losses resulting from its liability by means of an agreement to indemnify. See Margolin v. New York Life Insurance Co., 32 N.Y.2d 149, 344 N.Y.S.2d 336 (1973). Indemnification provisions in a contract are strictly construed against the drafter. See Mejia v. Trustees of Net Realty Holding trust, 304 A.D.2d 627, 759 N.Y.S.2d 91 (2d Dep't 2003). The intention to indemnify must be clearly expressed from the language and purpose of the entire agreement and the surrounding facts and circumstances. Blank Rome, LLP v. Parrish, 92 A.D.3d 444, 938 N.Y.S.2d 284 (1st Dep't 2012); Baillargeon v. Kings County Waterproofing Corp., 91 A.D.3d 686, 936 N.Y.S.2d 298 (2d Dep't 2012); Drzewinski v. Atlantic Scaffold & Ladder Co., 70 N.Y.2d 744, 515 N.E.2d 902, 521 N.Y.S.2d 216 (1987). Contractual indemnification provisions are strictly construed. Courts will not read obligations into an indemnification provision that the parties did not intend to create. Great Northern v. Interior Constr., 7 N.Y.3d 412, 857 N.E.2d 60 (2006). A broad indemnity clause will require the indemnitor to indemnify the indemnitee where a claimant's bodily injury or property damage "arises out of the work," of the indemnitor. Under this formulation, negligence on the part of the indemnitor is not a prerequisite to its obligation to indemnify the indemnitee. See e.g., Brown v. Two Exchange Plaza Partners, 76 N.Y.2d 172, 556 N.E.2d 430, 556 N.Y.S.2d 991 (1990); Urbina v. 26 Ct. St. Assoc., LLC, 46 A.D.3d 268, 847 N.Y.S.2d 67 (1st

Dep't 2007). A subcontractor's employee simply traversing the site, leaving for lunch, etc. will suffice. See O'Connor v. Serge Elevator Co., 58 N.Y.2d 655, 444 N.E.2d 982, 458 N.Y.S.2d 518 (1982). A contract may limit the obligation to indemnify to the extent that the harm giving rise to the claim is caused by the indemnitor's negligence. See Crimi v. Neves Assoc., 306 A.D.2d 152, 761 N.Y.S.2d 186 (1st Dep't 2003). The wording for indemnification must evince "unmistakable intent" that owner would indemnify for employer's own negligence. Ebbecke v. Bay View Envtl. Servs., 145 A.D.2d 524, 535 N.Y.S.2d 746 (2d Dep't 1988), appeal denied, 74 N.Y.2d 606, 543 N.E.2d 85 (1989). N.Y. Gen. Oblig. Law § 5-322.1 voids certain indemnification clauses to owners or general contractors if they were negligent "in whole or in part." See Robert DeFilippis Crane Serv. v. Joannco Contr. Corp., 132 A.D.2d 517, 517 N.Y.S.2d 259 (2d Dep't 1987). The bar of Gen. Oblig. Law §5-322.1 applies only if the indemnitee was in some degree negligent. The general contractor's vicarious liability under Labor Law § 240 (1) was not the equivalent of negligence. Brown v. Two Exch. Plaza Partners, 146 A.D.2d 129, 539 N.Y.S.2d 889 (1st Dep't 1989) aff'd, 76 N.Y.2d 172, 556 N.E.2d 430 (1990). (holding indemnification agreement between a general contractor and sub-contractor for liability was enforceable to the extent it requires indemnification in the absence of negligence), General contractor vicariously liable under Labor Law is not negligent and can obtain contractual indemnity. Since defendant was not the promisee in the indemnity contract and only found partially at fault for plaintiff's injuries, judgment over promisee pursuant to indemnification contract is proper. Kilfeather v. Astoria 31st St. Assocs., 156 A.D.2d 428, 548 N.Y.S.2d 545 (2d Dep't 1989); see also, Robert DeFilippis Crane Serv., Inc., 132 A.D.2d at 517-18, 517 N.Y.S.2d at 260-61; cf. Quevedo v. City of N.Y., 56 N.Y.2d 150, 436 N.E.2d 1253 (1982), reargument denied, 57 N.Y.2d 674, 439 N.E.2d 1247 (1982). Owners and contractors may obtain partial indemnification notwithstanding N.Y. Gen. Oblig. Law § 5322.1 if contractual provision contains savings clause (e.g., "to the fullest extent permitted by law"). Compare Brooks v. Judlau Contr., 11 N.Y.3d 204, 898 N.E.2d 549 (2008) with Anderson v. Greyhound Lines, Inc., 2011 WL 3480945 (S.D.N.Y. Aug. 3, 2011). Statute prohibiting indemnification contracts purporting to indemnify promisee against own negligence did not bar contract requiring promisor to indemnify promisees only to the extent caused by its own negli---- For Current Listings access www.ambest.com/legal----

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gence. Hernandez v. Argo Group, 95 A.D.3d 782, 945 N.Y.S.2d 662 (1st Dep't 2012). (Indemnitee was entitled to partial contractual indemnification because indemnity provision contained language "to the fullest extent permitted by law.) Pursuant to N.Y. General Obligations Law §5-321 agreements exempting lessors from liability for their own negligence are void and unenforceable. Indemnity shifts entire loss or damages, by contract and/or common law right of indemnification. Latter is often implied by law to prevent unjust enrichment or unfair result. Law frowns on contracts to exculpate party from liability for his own negligence. Willard Van Dyke Prods. v. Eastman Kodak Co., 12 N.Y.2d 301, 189 N.E.2d 693 (1963). Terms must be unequivocal. Gross v. Sweet, 49 N.Y.2d 102, 400 N.E.2d 306 (1979). Parties to a contract may agree to right of indemnification. Trustees of Columbia Univ. v. Mitchell/Giurgola Assocs., 109 A.D.2d 449, 492 N.Y.S.2d 371 (1st Dep't 1985). Indemnification of lessor in gas station lease, for loss or damages except as caused by lessor's "sole negligence" and to obtain insurance covering lessor, did not violate statute voiding contracts to exempt landlord from liability for his own negligence. Jensen v. Chevron Corp., 160 A.D.2d 767, 553 N.Y.S.2d 485 (2d Dep't 1990). c.f. Hadzihasanovic v. 155 E. 72nd St., 70 A.D.3d 637, 896 N.Y.S.2d 83 (2d Dep't 2010); Colosi v. RATL, 7 A.D.3d 558, 776 N.Y.S.2d 496 (2d Dep't 2004). Amendments to Workers' Compensation Law § 11 do not affect right to contractual indemnification from plaintiff's employer. Majewski v. Broadalbin-Perth Cent. Sch. Dist., 91 N.Y.2d 577, 696 N.E.2d 978 (1998). Language of indemnity provision will effect broad or narrow interpretation. Compare Urbina v. 26 Ct. St. Assoc., 46 A.D.3d 268, 847 N.Y.S.2d 67 (1st Dep't 2007) with Crimi v. Neves Assocs., 306 A.D.2d 152, 761 N.Y.S.2d 186 (1st Dep't 2003). INFANTS See "AGE"; "AUTOMOBILES"; "FOSTER CARE"; "LIABILITY INSURANCE"; "NEGLIGENCE." Child cannot sue parent directly or indirectly (impleader) for injury caused by negligent supervision of parent, but child can sue for parent's negligent operation of vehicle. Holodook v. Spencer, 36 N.Y.2d 35, 324 N.E.2d 338 (1974); see also, Rios v. Smith, 95 N.Y.2d 647, 744 N.E.2d 1156 (2001) (holding parent liable to third party for entrusting minor with dangerous instrument; dangerous instrument is question of fact for jury); Nolechek v. Gesuale, 46 N.Y.2d 332, 385 N.E.2d 1268 (1978) (holding that a parent may be liable to a third party where the parent negligently entrusts a dangerous in-

strument to the child and the risk of harm to a third party is foreseeable). This rule does not apply to "grandparents" where they exercise temporary custody of infant. See, Costello v. Marchese, 137 A.D.2d 482, 524 N.Y.S.2d 232 (2d Dep't 1988); see also Kolodziejczak v. Kolodziejczak, 83 A.D.3d 1377, 920 N.Y.S.2d 520 (4th Dep't 2011). However, a grandparent acting in "loco parentis," i.e. put in place of parent, assume all obligations, may be liable to a third party for a child's acts. See e.g., Hadden v. Kero-Sun, Inc., 197 A.D.2d 668, 602 N.Y.S.2d 880 (2d Dep't 1993). Child does not have cause of action against foster parent for negligent supervision. See McCabe v. Dutchess County, 72 A.D.3d 145, 895 N.Y.S.2d 446 (2d Dep't 2010). Agencies and counties may be sued for negligent supervision for children in foster care. Id. (discussing various elements needed to sue agency or county). See also Hill v. City of New York, 85 A.D.3d 623, 926 N.Y.S.2d 76 (1st Dep't 2011). Parent not liable to unemancipated child for injuries on theory of negligent supervision. See Lastowski v. Norge Coin-O-Matic, Inc., 44 A.D.2d 127, 355 N.Y.S.2d 432 (2d Dep't 1974). However, parent may sue child for child's negligence. See Gelbman v. Gelbman, 23 N.Y.2d 434, 245 N.E.2d 192 (1969) (abolished defense of intrafamilial immunity for unintentional torts, when mother passenger sued 16 year old unemancipated son for negligent driving). Negligent Supervision Distinguished. Immunity of parent from third-party (impleader) liability for inadequate supervision of child. Holodook, 36 N.Y.2d at 51, 324 N.E.2d at 346; but see Nolechek v. Gesuale, 46 N.Y.2d 332, 385 N.E.2d 1268 (1978) (holding parent liable to third party for entrusting motorcycle to partially blind child). Parent not held liable for their children's torts because of family relationship. Children are generally liable for own torts unless exceptions apply such as negligent supervision. See Steinberg v. Cauchois, 249 A.D. 518, 293 N.Y.S. 147 (2d Dep't 1937); see also Holodook, 36 N.Y.2d at 35, 324 N.E.2d at 338; Maurillo v. Park Slope U-Haul, 194 A.D.2d 142, 606 N.Y.S.2d 243 (2d Dep't 1993) (principal-agent relationship exposes parent to liability for infants torts). Leaving infant with accessibility to pool involves duty to exercise reasonable care is a duty separate from family relationship. See Semmens v. Hopper, 128 A.D.2d 767, 513 N.Y.S.2d 472 (2d Dep't 1987); see also Maldonado v. Newport Gardens, Inc., 91 A.D.3d 731, 937 N.Y.S.2d 260 (2d Dep't 2012); Hoppe IV v. Hoppe III, 281 A.D.2d 585, 724 N.Y.S.2d 65 (2d Dep't 2001) (breach of duty to exercise reasonable care provides cause of action for infant); Grivas v. Grivas, 113 A.D.2d 264, 496 N.Y.S.2d 757 (2d

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Dep't 1985); Hurst v. Titus, 77 A.D.2d 157, 432 N.Y.S.2d 938 (4th Dep't 1980). Parent or guardian of child over 10 years and under 18 years is liable in civil suit for damages to real or personal property up to $5,000 where unemancipated child has "willfully," "maliciously" or "unlawfully" damaged, defaced, or destroyed such property. See Gen. Oblig. Law § 3-112; see also Owens v. R.M. Ivey, 138 Misc. 2d 671, 525 N.Y.S.2d 508 (Monroe County 1988) (applying Gen. Oblig. Law § 3-112); Brand v. Toussaint, 24 Misc. 3d 1249(A); 2009 Slip Op. 51929(U) (Kings County 2009) (parent not liable because of parentage, for liability to attach exceptions and statute must apply to facts). Action brought by child after birth who sustained injuries, while in utero, due to parent's or custodian's negligence will not be imputed to the infants claim. See Ruffing v. Union Carbide Corp., 186 Misc. 2d 328, 720 N.Y.S.2d 328 (Westchester County 2000) (holding contributory negligence defense cannot be alleged against infant due to parents negligence); see also Gen. Oblig. Law § 3-111. Children three years old or younger are deemed non sui juris as a matter of law and are deemed too young to be responsible for their actions. M.F. v. Delaney, 37 A.D.3d 1104, 830 N.Y.S.2d 412 (4th Dep't 2007). Litigants who are deemed non sui juris are incapable of being charged with assumption of risk or comparative negligence. Id. INLAND MARINE Specific and Floater Insurance. Originally referred to as "inland marine" insurance, more recently referred to as a "personal property floater policy." These policies are designed to cover the loss of or damage to various personal items of the insured and have been used extensively to cover the loss of personal jewelry. Viviano v. Jewelers Mut. Ins. Co., 115 Misc. 2d 518, 454 N.Y.S.2d 404 (N.Y.Dist.Ct.,1982). ISSUANCE OF POLICY The determination of when a contract of insurance comes into being is important and often hinges on the meaning of the term "issuance" which in the realm of insurance policies can refer to either when the policy is made, delivered and in full effect and operation as a binding mutual obligation, or to the actual preparation and signing of the policy by the officers. Its meaning in an individual case must be determined by the rules of construction applicable to insurance contracts in general. "[ a] policy of insurance is issued when it is delivered and accepted, whereby it comes into full effect and operation as a binding mutual obligation, or when it is prepared and signed, as distinguished from its delivery

to the insured." Taggert v. Security Ins. Co., 277 A.D. 1051, 100 N.Y.S.2d 563 (2d Dep't 1950). "It is clear that under New York law, contracts of insurance may specify an `issue date' and an `effective date,' and that neither of these dates need be the date on which the policy was actually executed." Rosner v. Metropolitan Property and Liability Insurance , 236 F.3d 96 (2nd Cir. 2000); See Guardian Life Ins., 70 N.Y.2d 888, 889, 519 N.E.2d 288, 289, 524 N.Y.S.2d 377, 378, (1987); B.T.R. East Greenbush v. General Accident, 206 A.D.2d 790, 791-92, 615 N.Y.S.2d 120, 121 (3d Dep't 1994); Seaver v. Massachusetts Bonding & Ins. Co., 7 A.D.2d 310, 311-15, 182 N.Y.S.2d 918, 919-22 (1959); Forrest v. Mutual Benefit Life Ins. Co., 195 Misc. 12, 14-17, 86 N.Y.S.2d 910, 911-14 (1949). Prior to issuance the terms of the application may be determinative. Great Neck Saw Mfrs., Inc. v. Manhattan Life Ins. Co., 163 A.D.2d 273, 557 N.Y.S.2d 142 (2d Dep't 1990) (insurer not liable for $100,000,000 under life insurance policy which allegedly should have been issued where, according to clear terms of application for policy, no insurance would take effect until policy was issued and delivered). Cavallo v. Metropolitan Life Ins. Co., 34 A.D.2d 682, 312 N.Y.S.2d 438 (2d Dep't 1970) (agents representation as to when policy will take effect does not negate clear terms of application which preface effectiveness on issuance). Effect of Binder. When temporary insurance is intended, the practice of the insurance companies is to issue a binder, with specified conditions. Truglio v. Zurich General Accident & Liability Ins. Co., 247 N.Y. 423, 160 N.E. 774 (1928). An insurance binder constitutes a temporary or interim policy that terminates when an insurance policy is either issued or refused by the insurer. Bedessee Imports, Inc. v. Cook, Hall & Hyde, Inc., 45 A.D.3d 792, 847 N.Y.S.2d 151 (2d Dep't 2007). JOINT AND SEVERAL LIABILITY See "DAMAGES- Joint and Several Liability." CPLR §1601, for suits filed after July, 1986, defendant found liable 50% or less is relieved from joint and several liability for non-economic damages; liability only for equitable share of non-economic damages. Not applicable in motor vehicle cases where serious injury. See Ins. Law § 5104. See exceptions cited in paragraphs under "DAMAGES." LABOR LAW Construction. General. Only employees are afforded protection under Labor Law. See Stringer v. Musacchia, 11 N.Y.3d 212, 898 N.E.2d 545, 869 N.Y.S.2d 362 (2008); Whelen

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v Warwick Val. Civic & Social Club, 47 N.Y.2d 970, 393 N.E.2d 1032, 419 N.Y.S.2d 959 (1979); but see Lipsker v. 650 Crown Equities, LLC, 81 A.D.3d 789, 917 N.Y.S.2d 249 (2d Dep't 2011) (volunteer not entitled to protections of Labor Law); Tse Chin Cheung v. G&M Hardware & Electric, 249 A.D.2d 28, 670 N.Y.S.2d 495 (1st Dep't 1998); Strunk v. Buckley, 251 A.D.2d 491, 674 N.Y.S.2d 420 (2d Dep't 1998); see also Stringer v. Musacchia, 11 N.Y.3d 212, 898 N.E.2d 545 (2008); McNulty v. Executive Kitchens, Ltd., 294 A.D.2d 411, 742 N.Y.S.2d 354 (2d Dep't 2002). Labor Law §200. Labor Law §200 is the codification of the common law duty of an employer to provide its employees with a safe place to work. The statute extends the common law duty to the owner of a work site. The statute does not create a new, heightened standard of care, but adopts the common law standard of reasonable care. See e.g., Harris v. Arnell Construction Corp., 47 A.D.3d 768, 850 N.Y.S.2d 547 (2d Dep't 2008); Peay v. New York City School Construction Authority, 35 A.D.3d 566, 827 N.Y.S.2d 189 (2d Dep't 2006); Gleason v. Gottlieb, 35 A.D.3d 355, 826 N.Y.S.2d 633 (2d Dep't 2006); Mikcua v. Alps Mechanical, Inc., 34 A.D.3d 769, 825 N.Y.S.2d 130 (2d Dep't 2006); Frumusa v. P.J. Weyer Construction, Inc., 245 A.D.2d 416, 666 N.Y.S.2d 210 (2d Dep't 1997). See, Peay v. New York City School Construction Authority, 35 A.D.3d 566, 827 N.Y.S.2d 189 (2d Dep't 2006) Liability only imposed if party charged with violation was negligent, i.e., defendant knew or should have known of condition or work practice and had authority or ability to correct it. See Mak v. Silverstein Properties, Inc., 81 A.D.3d 520, 916 N.Y.S.2d 592 (1st Dep't 2011); Desharnais v. Jefferson Concrete Co., Inc., 35 A.D.3d 1059, 827 N.Y.S.2d 312 (3 Dep't 2006). Employer breached its nondelegable duty of providing employee with safe place to work. See Atkinson v. State, 12 Misc.3d 582, 814 N.Y.S.2d 490 (N.Y. Ct. Cl. 2006). Not every person injured at or near a construction site is covered by Labor Law § 200. For example volunteers and non-employees are not afforded the protections of Labor Law § 200. Tse Chin Cheung v. G&M Hardware & Electric, 249 A.D.2d 28, 670 N.Y.S.2d 495 (1st Dep't 1998); Strunk v. Buckley, 251 A.D.2d 491, 674 N.Y.S.2d 420 (2d Dep't 1998); McNulty v. Executive Kitchens, Ltd., 294 A.D.2d 411, 742 N.Y.S.2d 354 (2d Dep't 2002); Martucci v. Tirro Construction Co., 192 Misc. 2d 22, 743 N.Y.S.2d 668 (Supreme Court, Richmond County). (Shop steward collecting dues for union not afforded protection of Labor Law.) Parties Owing Duties. Building Owners; Construction Managers; General Contractors; Subcontractors. Statue applies to owners, contractors, and their agents.

See, Romang v. Welsbach Elec. Corp., 47 A.D.3d 789, 852 N.Y.S.2d 144 (2d Dep't 2008) (subcontractor liability requires showing authority to supervise and control that activity was conferred); Brasch v. Yonkers Const. Co., 306 A.D.2d 508, 762 N.Y.S.2d 626 (2d Dep't 2003). Liability on general contractor arising from manner work performed at site, general contractor must have exercised supervision and control over work performed or authority to control activity bringing about injury; general authority to supervise insufficient, but if injury stems from dangerous condition not manner work is performed, general contractor liable if had control over work site and actual or constructive notice of dangerous condition. See McLeod v. Corp., 41 A.D.3d. 796, 2007 NY Slip Op 05702 (2d Dep't 2007); see also Buckley v. Columbia, 44 A.D.3d 263, 841 N.Y.S.2d 249 (1st Dep't 2007); Dlanna v. City of New York, 308 A.D.2d 400, 764 N.Y.S.2d 429 (1st Dep't 2003); Van Hoesen v. Dolen, 93 A.D.3d 1264, 942 N.Y.S.2d 650 (3d Dep't 2012); Coaxum v. Metcon Const., Inc., 93 A.D.3d 403, 939 N.Y.S.2d 415 (1st Dep't 2012). Professional Engineer. Liability under Labor Law if there exists in contract authority to supervise and control the activity that caused accident. Gonzalez v. Pon Lin Realty Corp., 34 A.D.3d 638, 826 N.Y.S.2d 94 (2d Dep't 2006); Hutchinson v. City of New York, 18 A.D.3d 370, 795 N.Y.S.2d 554 (1st Dep't 2005).Cf. Carter v. Vollmer, 196 A.D.2d 754, 602 N.Y.S.2d 48 (1st Dep't 1993) (contract limited work to construction and inspection, therefore, no liability imposed); see also Walker v. Metro-North, 783 N.Y.S.2d 362 (1st Dep't 2004). Inspection authority without authority to direct not sufficient. See, id. Hazards. For example, hole in floor of worksite, sharp edge, sloped work surface, tripping hazards. Coleman v. Crumb Rubber Mfrs., 92 A.D.3d 1128, 940 N.Y.S.2d 170 (3d Dep't 2012); Cody v. State, 82 A.D.3d 925, 919 N.Y.S.2d 55 (2d Dep't 2011). Notice. Plaintiff must establish that the owner and/or contractor had actual notice of dangerous condition. Ozimek v. Holiday Valley, Inc., 83 A.D.3d 1414, 920 N.Y.S.2d 528 (4th Dep't 2011); Slikas v. Cyclone Realty, LLC, 78 A.D.3d 144, 908 N.Y.S.2d 117 (2d Dep't 2010); Ashjian v. Orion Power Holdings, Inc., 70 A.D.3d 738, 895 N.Y.S.2d 459 (2d Dep't 2010); Miller v. Shah, 3 A.D.3d 521, 770 N.Y.S.2d 739 (2d Dep't 2004); Salinas v. Barney Skanska Construction Co., 2 A.D.3d 619, 769 N.Y.S.2d 559 (2d Dep't 2003). Caveat: owner has duty to conduct reasonable inspections, yet the failure to do so does not establish liability unless a diligent inspection would have disclosed the defect that caused the plaintiff's injury. DaBolt v. Bethlehem Steel Corp., 92 A.D.2d 70, 459 N.Y.S.2d 503 (4th Dep't 1983),

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appeal dismissed 60 N.Y.2d 554, 454 N.E.2d 1318 (1983); Kennedy v. McKay, 86 A.D.2d 597, 446 N.Y.S.2d 124 (2d Dep't 1982); Monroe v. The City of New York, 67 A.D.2d 89, 414 N.Y.S.2d 718 (2d Dep't 1979). Control. Plaintiff must establish that the defendant had the authority to control the activity bringing about the injury to enable it to avoid and correct the unsafe condition. Rizzuto v. L.A. Wenger Construction Co., 91 N.Y.2d 343, 693 N.E.2d 1068 (1998); Urbano v. Rockefeller Center North, Inc., 91 A.D.3d 549, 937 N.Y.S.2d 194 (1st Dep't 2012); Martinez v. 342 Property LLC, 89 A.D.3d 468, 932 N.Y.S.2d 454 (1st Dep't 2011); Hart v. Commack Hotel, LLC, 85 A.D.3d 1117, 927 N.Y.S.2d 111 (2d Dep't 2011); Harris v. Arnell Construction Corp., 47 A.D.3d 768, 850 N.Y.S.2d 547 (2d Dep't 2008); Peay v. New York City School Construction Authority, 35 A.D.3d 566, 827 N.Y.S.2d 189 (2d Dep't 2006); Gleason v. Gottlieb, 35 A.D.3d 355, 826 N.Y.S.2d 633 (2d Dep't 2006); Mikcua v. Alps Mechanical, Inc., 34 A.D.3d 769, 825 N.Y.S.2d 130 (2d Dep't 2006); O'Sullivan v. IDI Construction Co., Inc., 28 A.D.3d 225, 813 N.Y.S.2d 373 (1st Dep't 2006); Perri v. Gilbert John Enterprises, Ltd., 14 A.D.3d 681, 790 N.Y.S.2d 25 (2d Dep't 2005); Linkowski v. City of New York, 33 A.D.3d 971, 974-975, 824 N.Y.S.2d 109 (2d Dep't. 2000). See also Damiani v. Federated Department Stores, Inc., 23 A.D.2d 329, 331-332, 804 N.Y.S.2d 103 (2d Dep't. 2005); Domino v. Professional Consulting, Inc., 57 A.D.3d 713, 869 N.Y.S.2d 224 (2d Dep't 2008); and Reaber v. Connequot Central School District, 57 A.D.3d 640, 870 N.Y.S.2d 72 (2d Dep't 2008). Where the alleged defect or dangerous condition arises from a subcontractor's methods over which the defendant exercises no supervisory control, liability will not attach. Comes v. New York State Electric & Gas Corp., 82 N.Y.2d 876, 631 N.E.2d 110 (1993); Lombardi v. Stout, 80 N.Y.2d 290, 590 N.Y.S.2d 55 (1992). Russo v. Hudson View Gardens, Inc., 91 A.D.3d 556, 937 N.Y.S.2d 196 (1st Dep't 2012); Ortega v. Everest Realty LLC, 84 A.D.3d 542, 923 N.Y.S.2d 74 (1st Dep't 2011); Domino v. Professional Consulting, Inc., 57 A.D.3d 713, 869 N.Y.S.2d 224 (2d Dept. 2008); McGarry v. CVP 1 LLC, 55 A.D.3d 441, 866 N.Y.S.2d 76 (1st Dep't 2008). Caveat: Visits to the job site for the purpose of making sure that the work is being performed pursuant to specifications, general supervisory responsibilities, as well as the contracting right to halt work for any safety violations are insufficient to establish that an owner or contractor is liable pursuant to Labor Law § 200. Perri v. Gilbert John Enterprises, Ltd., 14 A.D.3d 681, 790 N.Y.S.2d 25 (2d Dep't 2005); New York State Thruway Authority v. CBE Contracting Corp., 280 A.D.2d 390, 721 N.Y.S.2d 328 (1st Dep't 2001); Warnitz

v. Liro Group, Ltd., 254 A.D.2d 411, 678 N.Y.S.2d 910 (2d Dep't 1998). Plaintiff's culpable conduct is admissible in defense of a violation of Labor Law § 200. Unlike Labor Law § 240(1), the apportionment of liability in a Labor Law § 200 case does include the conduct of plaintiff. Consequently, a plaintiff may not be entitled to a complete recovery even if defendants violated Labor Law § 200. Plaintiff's comparative negligence may serve to reduce the amount of plaintiff's ultimate award. Gittleson v. Cool Wind Ventilation Corp., 46 A.D.3d 855, 848 N.Y.S.2d 709 (2d Dep't 2007), leave to appeal denied 10 N.Y.3d 715, 892 N.E.2d 401 (2008); Azad v. 270 5th Realty Corp., 46 A.D.3d 728, 848 N.Y.S.2d 688 (2d Dep't 2007), leave to appeal denied 10 N.Y.3d 706, 886 N.E.2d 804 (2008). Labor Law §240(1). Gravity Related Hazards. Labor Law § 240(1) includes strict liability for contractors and owners for a worker's accident and resulting injury, whether or not they actually supervised or controlled the work, excepting owners of one and two-family dwellings who contract for but do not direct or control the work, engineers, architects or landscape architects. Strict liability is assessed based upon the presumption that these parties had the ability, or would be in the best position, to control the activity which brought about the plaintiff's injury based upon their role and involvement with the project. Parties Owing Duties. Building Owners; General Contractor; Subcontractors, Lessees who are deemed owners; Construction Managers; See Walls v. Turner Construction, 10 A.D.3d 261, 781 N.Y.S.2d 12 (1st Dep't 2004), aff'd 4 N.Y.3d 861, 831 N.E.2d 408 (2005) See Temperino v. DRA, Inc., 75 A.D.3d 543, 904 N.Y.S.2d 767 (2d Dep't 2010); Kilmetis v. Creative Pool and Spa, Inc., 74 A.D.3d 1289, 904 N.Y.S.2d 495 (2d Dep't 2010); Pacheco v. Kew Garden Hills Apartment Owners, Inc., 73 A.D.3d 578, 906 N.Y.S.2d 3 (1st Dep't 2010). However, construction manager does not owe a duty if it did nothing more than see that the construction was being performed in accordance with the plans and specifications. See Rodriguez v. JMB Architecture, LLC, 82 A.D.3d 949, 919 N.Y.S.2d 40 (2d Dep't 2011); Loiacano v. Leher McGovern Bovis, Inc., 270 A.D.2d 464, 704 N.Y.S.2d 658 (2d Dep't 2000). Site safety consultants generally are not liable under the statute. Gaspar v. LC Main, LLC, 27 Misc. 3d 1212(A), 910 N.Y.S.2d 405 (N.Y. Sup. Ct., 2010). However, construction manager does not owe a duty if it did nothing more than see that the construction was being performed in accordance with the plans and specifications. See e.g., Loiacano v. Leher McGovern

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Bovis, Inc., 270 A.D.2d 464, 704 N.Y.S.2d 658 (2d Dep't 2000). Plaintiff's culpable conduct is not admissible in defense of a violation of Labor Law § 240(1). A jury can consider if plaintiff's conduct was the "sole proximate cause" of the accident. Robinson v. East Medical Center, L.P., 6 N.Y.3d 550, 847 N.E.2d 1161 (2006); Cahill v. Triborough Bridge and Tunnel Authority, 4 N.Y.3d 35, 790 N.Y.S.2d 74 (2004); Calderon v. Walgreen Co., 72 A.D.3d 1532, 900 N.Y.S.2d 533 (4th Dep't 2010); Cherry v. Time Warner, Inc., 66 A.D.3d 233, 885 N.Y.S.2d 28, (1st Dep't 2009); Forschner v. Jucca Co., 63 A.D.3d 996, 883 N.Y.S.2d 63 (2d Dep't 2009); Masullo v. 1199 Housing Corp., 63 A.D.3d 430, 881 N.Y.S.2d 47 (1st Dep't 2009). Labor Law §240(1) Applies. With respect to buildings and structures: altering; construction; demolition; repairs; altering; painting; cleaning; and pointing. Plaintiff's Labor Law § 240(1) claim should be dismissed when plaintiff not engaged in an enumerated activity. Bolster v. Eastern Building and Restoration, Inc. 2012 WL 2035818 (3d Dep't 2012) "The term `cleaning' as used in the scaffold law is not to be so broadly applied as to encompass commercial cleaning of store shelves. Soto v. J. Crew, Inc., 95 A.D.3d 721, 945 N.Y.S.2d 255 (1st Dep't 2012). Labor Law § 240(1) does not apply here as plaintiff was not engaged in any alteration of the building at the time of the occurrence. Butler v. Quest Property Managemen V. Corp. 95 A.D.3d 678, 943 N.Y.S.2d 887 (1st Dep't 2012). Laborer was engaged in protected activity under Labor Law § 240(1) at time he fell from sidewalk bridge, even though he was not removing lead paint from fire escape at time of fall, where he was walking across bridge to set up tent in preparation for lead paint removal work at another fire escape. Augustyn v. City of New York, 95 A.D.3d 683, 944 N.Y.S.2d 146 (1st Dep't 2012). Gravity Related Pre-Requisite. Labor Law § 240(1) covers situations involving falling workers and/or falling objects who involved in an enumerated activity. Gasques v. State, 15 N.Y.3d 869, 937 N.E.2d 79 (2010); Runner v. New York Stock Exchange, Inc., 13 N.Y.3d 599, 922 N.E.2d 865 (2009); Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 750 N.E.2d 1085 (2001); Rocovich v. Consolidated Edison Company, 78 N.Y.2d 509, 583 N.E.2d 932 (1991). Labor Law § 240(1) claim dismissed when record demonstrated that plaintiff was not exposed to an elevation-related risk and his injury did not directly flow from

the application of gravity's force. Rosa v. Bovis Lend Lease, LMB, 2012 N.Y. Slip Op. 05115 (1st Dep't 2012). "Impetus for fall of heavy stone was worker's tripping on ground level, rather than direct consequence of gravity, and thus scaffold law did not apply to claims seeking damages for injuries that worker sustained when he fell in open, grassy area." Ghany v. BC Tile Contractors, Inc., 95 A.D.3d 768, 945 N.Y.S.2d 657 (1st Dep't 2012). "'Falling object' liability under Scaffold Law is not limited to cases in which the falling object is in the process of being hoisted or secured; rather, liability may be imposed where an object or material that fell, causing injury, was a load that required securing for the purposes of the undertaking at the time it fell." Andresky v. Wenger Construction Co., Inc., 95 A.D.3d 1247, 945 N.Y.S.2d 186 (2d Dep't 2012). Defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action to recover damages pursuant to Labor Law§240(1) by submitting evidence demonstrating that the injuries resulted from a general hazard encountered at a construction site and were not "the direct consequence of a failure to provide" an adequate device of the sort enumerated in § 240(1). Gygro v. 1116 Kings Highway Realty, LLC, 2012 N.Y. Slip Op. 05139 (2d Dep't 2012). Toppling Over. Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 N.Y.3d 1, 959 N.E.2d 488 (2011), Court of Appeals held that accident stemming from pipe falling over cannot be categorically considered outside scope of statute. Daley v. City of New York, 277 A.D.2d 88, 716 N.Y.S.2d 50 (1st Dep't 2000), First Department holding that section 240(1) liability did not exist where elevation-related risk was not apparent. Melo v. Consolidated Edison of New York, Inc., 92 N.Y.2d 909, 702 N.E.2d 232 (1998), Court of Appeals held that Labor Law § 240(1) is inapplicable to a situation that involves a metal sheet toppling over after it was lowered to the ground. Misseritti v. Mark IV Construction Co., Inc., 86 N.Y.2d 487, 657 N.E.2d 1318 (1995), Court of Appeals held that collapse of completed wall was not within scope of Labor Law § 240(1). Short Falls. Labor Law § 240(1) covers even falls of only 24 inches. Courts are not as concerned with the actual height from which the object fell, but instead the simple determination of whether an elevation-related risk was involved. See Brown v. VJB Construction Corp., 50 A.D.3d 373, 857 N.Y.S.2d 55 (1st Dep't 2008), the plaintiff was injured when a slab of granite fell on the plaintiff from a distance of three feet. The court reasoned: "[w]hile it is true that section 240(1) liability re---- For Current Listings access www.ambest.com/legal----

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quires an elevation differential between the worker and the object being hoisted, the extent of the elevation differential is not necessarily determinative of whether an accident falls within the ambit of Labor Law § 240(1)" (emphasis added). Relying on a recent decision, Gonzalez v. Glenwood Mason Supply Co. Inc., 41 A.D.3d 338, 839 N.Y.S.2d 74 (1st Dep't 2007), the court ultimately found for the plaintiff. Gonzalez v. Glenwood Mason Supply Co. Inc., supra, involved a plaintiff that was hit with a load of cinder blocks as it was being hoisted from a flatbed truck on to a pallet. The First Department held that the elevation risk at issue in Gonzalez "fell within the ambit of Labor Law § 240." However, cases show that height differential of 24 inches or less is not necessarily a gravity related risk when falling from a ramp. Makarius v. Port Authority of New York and New Jersey, 76 A.D.3d 805, 907 N.Y.S.2d 658 (1st Dep't 2010) (no liability where transformer fell two feet from wall); Torkel v. N.Y.U. Hospital, 63 A.D.3d 587, 883 N.Y.S.2d 8 (1st Dep't 2009); Donohue v. CJAM Associates, 22 A.D.3d 710, 712, 803 N.Y.S.2d 132 (2d Dep't 2005), citing, Paul v. Ryan Homes, Inc. 5 A.D.3d 58, 774 N.Y.S.2d 225 (4th Dep't 2000). Almost Falls. Labor Law § 240(1) covers situations where plaintiff saved himself from falling but injured himself in the process of averting a fall. Reavely v. Yonkers Raceway Programs, Inc., 88 A.D.3d 561, 931 N.Y.S.2d 579 (1st Dep't 2011); Pesca v. City of New York, 298 A.D.2d 292, 749 N.Y.S.2d 26 (1st Dep't 2002) (fact that plaintiff did not actually fall does not preclude imposition of section 240(1) liability if plaintiff can show injuries sustained as result of failure to provide safety device); Brown v. Niagara Mohawk Power Corporation, 188 A.D.2d 1014, 591 N.Y.S.2d 908 (4th Dep't 1992); Gramigna v. Morse Diesel, Inc., 210 A.D.2d 45, 620 N.Y.S.2d 58 (1st Dep't 1994); but see Moore v. Elmwood-Franklin School, 249 A.D.2d 923, 672 N.Y.S.2d 221 (4th Dep't 1998) (holding plaintiff's slide down side of roof before he stopped himself to not constitute elevation-related hazard contemplated by Labor Law § 240(1)). Falling Objects. Applies to situations involving a worker injured by a falling object, worker must show more than simply that an object fell causing injury to a worker, and must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute. Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 750 N.E.2d 1085 (2001); Boyle v. 42nd Street Development Project, Inc., 38 A.D.3d 404, 835 N.Y.S.2d 7 (1st Dep't 2007); Paulino v. Hearts Service Co., Inc., 28 A.D.3d 362, 814 N.Y.S.2d 62 (1st Dep't 2006).

Exclusions: One and Two Family Dwelling. Hossain v. Kurzynowski, 92 A.D.3d 722, 939 N.Y.S.2d 89 (2d Dep't 2012); Allen v. Fiori, 277 A.D.2d 674, 716 N.Y.S.2d 414 (3d Dep't 2000) (use-and-purpose test applied to determine applicability of exclusion). Defenses. Sole Proximate Cause. Blake v. Neighborhood Housing Services of New York City, Inc., 1 N.Y.3d 280, 803 N.E.2d 757 (2003); Thome v. Benchmark Main Transit Associates, LLC, 86 A.D.3d 938, 927 N.Y.S.2d 260 (4th Dep't 2011); Grant v. Steve Mark, Inc., 2012 N.Y. Slip Op. 05075 (1st Dep't 2012); Meade v. RockMcGraw, 307 A.D.2d 156, 760 N.Y.S.2d 39 (1st Dep't 2003); Jamison v. GSL Enterprises, Inc., 274 A.D.2d 356, 711 N.Y.S.2d 413 (1st Dep't 2000); Plaintiff is a sole proximate cause if worker received proper protection and employer or other supervisor repeatedly direct the worker to use the protective equipment that was provided to the worker and worker refused to use equipment. Cherry v. Time Warner, Inc., 66 A.D.3d 233, 885 N.Y.S.2d 28 (1st Dep't 2009); Gordon v. Eastern Railway Supply, Inc., 82 N.Y.2d 555, 626 N.E.2d 912, 606 N.Y.S.2d 127 (1993); Miraglia v. H&L Holding Corp., 306 A.D.2d 58, 759 N.Y.S.2d 678 (1st Dep't 2003) Lozada v. State of New York, 267 A.D.2d 253, , 700 N.Y.S.2d 38 (2d Dep't 1999); Jastrzebski v. North Shore School District, 223 A.D.2d 677, 637 N.Y.S.2d 439 (2d Dep't 1996); aff'd 88 N.Y.2d 946, 670 N.E.2d 1339 (1996); Cahill v. Triborough Bridge and Tunnel Authority, 4. N.Y.3d 35 (2004); Palacios v. Lake Carmel Fire Department, 15 A.D.3d 462, 790 N.Y.S.2d 185 (2d Dep't 2005). Recalcitrant Worker. Recalcitrant worker doctrine may permit a defendant to escape liability where worker injury as a result of his refuse to use available safety devises provided by employer or owner. See Pietrowski v. Are-East River Science Park, LLC, 86 A.D.3d 467, 928 N.Y.S.2d 266 (1st Dep't 2011); Dumas v. Myrtle Ave. Builders, LLC, 2010 NY Slip Op. 51622(U) (Kings County Sept. 9, 2010) but see Berrios v. 735 Ave. of Americas, LLC v. 735 Ave. of Americas, LLC, 82 A.D.3d 552, 919 N.Y.S.2d 16 (1st Dep't 2011) (recalcitrant worker defense not applicable if defendant failed to provide safety device). See, Nunez v. State, 27 Misc. 3d 1230(A) (NY Sup. 2010). Routine Maintenance. A worker injured while performing "routine maintenance" is not afforded the protection of Labor Law §§ 240(1) and 241(6). Abbatiello v. Lancaster Studio Associates, 3 N.Y.3d 46, 814 N.E.2d 784 (2004); Ventura v. Ozone Park Holding Corp., 84 A.D.3d 516, 923 N.Y.S.2d 67 (1st Dep't 2011); Breeden v. Sunset Industry. Park Assoc., 275 A.D.2d 726, 713 N.Y.S.2d 210 (2d Dep't 2000); Burr v. Short, 285

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A.D.2d 576, 728 N.Y.S.2d 741 (2d Dep't 2001); Edwards v. Twenty-Four Twenty-Six Main Street Associates, 195 A.D.2d 592, 601 N.Y.S.2d 11 (2d Dep't 1993); Diaz v. Applied Digital Data Systems, Inc., 300 A.D.2d 533, 753 N.Y.S.2d 514 (2d Dep't 2002) Esposito v. New York City Industrial Development Agency, 305 A.D.2d 108, 760 N.Y.S.2d 18 (1st Dep't 2003); Goad v. Southern Elec. Intern. Inc. 263 A.D.2d 654,693 N.Y.S.2d 301 (3d Dep't 1999); Jani v. City of New York, 284 A.D.2d 304, 725 N.Y.S.2d 389 (2d Dep't 2001); Jehle v. Adams Hotel Associates, 264 A.D.2d 354, 695 N.Y.S.2d 22 (1st Dep't 1999). Labor Law § 240 does not cover routine maintenance activities. See Panek v. County of Albany, 99 N.Y.2d 452, 788 N.E.2d 616 (2003) (citing, Joblon v. Solow, 81 N.Y.2d 457 (1998) (the critical inquiry is what type of work was plaintiff performing at time of injury)). Under Labor Law § 240 (1), liability only exists if plaintiff was engaged in enumerated activity. See, Panek, 99 N.Y.2d at 457; Wein v. Amato Property LLC, 30 A.D.3d 506, 816 N.Y.S.2d 370 (2d Dep't 2006) ("Only work that involves the erection, demolition, repairing, altering or painting of a building or structure enjoys the protection of Labor Law § 240."). For example, Labor Law § 240 (1) does not apply if injured was changing bulbs as this is routine maintenance, not repair. See Santagate v. Yorktown, 226 A.D.2d 519, 641 N.Y.S.2d 339 (2d Dep't 1996). Labor Law applicable if removing and replacing the lighting fixture. but see Clemente v. Grow Tunneling, 235 A.D.2d 331, 653 N.Y.S.2d 922 (1st Dep't 1997). (applicable if removing and replacing the lighting fixture). Intoxication. Admissible only as proof of sole proximate cause of fall from ladder. See Hodge v. Crouse, 207 A.D.2d 1007, 616 N.Y.S.2d 822 (4th Dep't 1994), declined to follow by, Beesimer v. Albany Avenue/Route 9 Realty, Inc., 216 A.D.2d 853, 629 N.Y.S.2d 816 (3d Dep't 1995) (contrary to Fourth Department mere evidence of fall insufficient to establish proper protection not provided). If plaintiff establishes a violation of the statute, intoxication cannot be considered sole proximate cause. See Moran v. 200 Varick Street Associates, LLC, 80 A.D.3d 581, 914 N.Y.S.2d 307 (2d Dep't 2011); Podbielski v. KMO-361 Realty Associates, 294 A.D.2d 552, 742 N.Y.S.2d 664 (2d Dep't 2002). Labor Law § 241(6). Violation of a Concrete Industrial Code Regulation. Labor Law § 241(6) imposed vicarious liability on all owners, contractors and their agents, regardless of whether they exercised any control over the work. The legislature amended Labor Law § 241(6) in 1962 to include a paragraph that set forth a generalized duty requiring owners, general contractors and subcontractors

to provide reasonable and adequate protection and safety to the persons employed in construction, demolition or excavation of a building. The duty also extended to cover any person lawfully frequenting such places. Labor Law § 241(6) did not contain any specific rules or regulations within the four corners of the statute, but delegated the authority to make specific rules and regulations to the Board of Standards and Appeals. Consequently, a violation of a specific Industrial Code Regulation, that has been deemed specific enough by the Courts to support a Labor Law § 241(6) claims, renders a defendant liable under Labor Law § 241(6). Parties Owing Duties. Same as for Labor Law § 240(1). While Labor Law § 241(6) makes non-delegable the duty of the owners and contractors to conform to the requirements of the section, when the work giving rise to the duties have been delegated to a third-party, the thirdparty obtains the concomitant authority to supervise that work and becomes a statutory agent of the owner or contractor. "Only upon obtaining the authority to supervise and control does the third-party fall within the class of those having non-delegable liability as an "agent" under section 241." Russin v. Picciano & Son, 54 N.Y.2d 311, 318, 429 N.E.2d 805 (1982), accord Walls v. Turner Construction Co., 4 N.Y.3d 861, 865, 831 N.E.2d 408 (2005). Industrial Code Regulation Violation. Plaintiff must establish that the owner/general contractor violated a sufficiently concrete Industrial Code Regulation and that the violation proximately caused the plaintiff injury. Plaintiff's culpable conduct is admissible in defense of a violation of Labor Law § 241(6). As is the case with Labor Law § 200 claims, comparative fault is a defense to claims under Labor Law § 241(6). Consequently, plaintiff's conduct can be considered by a jury as an offset to his damages even if the defendant is found to have negligently violated a specific and concrete provision of Industrial Code Rule 23. Labor Law § 241(6) Applies. With respect to buildings and structures: construction; excavation; and demolition. Exclusions. One and Two Family Dwellings. Usually outside the scope of the statute is work characterized as routine maintenance, repair or inspection, unless such work occurred in the context of ongoing construction, demolition or excavation. Gittins v. Barbaria Const. Corp., 74 A.D.3d 744, 902 N.Y.S.2d 613 (2d Dep't 2010); Parnell v. Mareddy, 69 A.D.3d 915, 897 N.Y.S.2d 108 (2d Dep't 2010); Caban v. Maria Estela Houses I Associates, L.P., 63 A.D.3d 639, 882 N.Y.S.2d 97 (1st Dep't 2009).Caban v. Maria Estela Houses I As---- For Current Listings access www.ambest.com/legal----

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sociates, L.P., 63 A.D.3d 639, 882 N.Y.S.2d 97 (1st Dep't 2009); Nagel v. D&R Realty Corp., 99 N.Y.2d 98, 782 N.E.2d 558 (2002). Labor Law § 241 (6) imposes on owner or general contractor a nondelegable duty of reasonable care and adequate protection to workers. See Fusca v. A&S Const., LLC, 84 A.D.3d 1155, 924 N.Y.S.2d 463 (2d Dep't 2011). Specific, not general, violations of the industrial Code Regulations must be alleged. See Nostrom v. A.W. Chesteron Co., 59 A.D.3d 159, 872 N.Y.S.2d 122 (1st Dep't 2009); Balbuena v. New York Stock Exchange, Inc., 45 A.D.3d 279, 844 N.Y.S.2d 285 (1st Dep't 2007); Cun-En Lin v. Holy Family Monuments, 18 A.D.3d 800, 796 N.Y.S.2d 684 (2d Dep't 2005) (labor law claim dismissed where industrial code provision amounted to general safety standard). Owner or general contractor may raise any valid defense to imposition of vicarious liability, including contributory and comparative negligence. Misicki v. Caradonna, 12 N.Y.3d 511, 909 N.E.2d 1213 (2009). Employers. May be impleaded as a third party defendant in a suit by injured employee unless the employer owes contractual indemnification or plaintiff sustained a "grave injury" as defined by Workers' Compensation Law §§ 11 and 29. See Rodrigues v. N & S Building Contractors, Inc., 5 N.Y.3d 427, 839 N.E.2d 357 (2005); Medici v. Dalton Schools, 43 A.D.2d 677, 349 N.Y.S.2d 726 (1st Dep't 1973) (Employer breached its nondelegable duty of providing employee with safe place to work). See "IMPLEADER." "Grave injury" to plaintiff employee required as defined in Omnibus Workers' Compensation Act: "... death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability." N.Y. Workers' Comp. Law § 11 (McKinney 2007). Broad general allegations of alleged permanent injuries are not sufficient for "grave injury." See Johnson v. Space Saver, 172 Misc. 2d 147, 656 N.Y.S.2d 715 (N.Y. Sup. Ct. 1997). Indemnity. Defendants vicariously liable (owner and/or contractor) can obtain common law indemnification from active tortfeasor. See Kelly v. Diesel, 35 N.Y.2d 1, 315 N.E.2d 751 (1974). (See "IMPLEADER".) Owner vicariously liable under Labor Law can, in recovery against party at fault, may include attorney fees, costs and disbursements in defending the primary injury suit. See Chapel v. Mitchell, 84 N.Y.2d 345, 642 N.E.2d 1082 (1994); see also Cunha v. City of New

York, 12 N.Y.3d 504, 910 N.E.2d 422, 882 N.Y.S.2d 674 (2009); U.S. Underwriters Ins. Co. v. City Club Hotel, LLC, 3 N.Y.3d 592, 822 N.E.2d 777, 789 N.Y.S.2d 470 (2004); but see Axelrod v. Magna Carta Co., 880 N.Y.S.2d 69 (1st Dept. 2009) (if no statute, agreement or court rule provides for such, attorneys' fees may not be granted). Broad general allegations of alleged permanent injuries are not sufficient for "grave injury." See Johnson v. Space Saver, 172 Misc. 2d 147, 656 N.Y.S.2d 715 (N.Y. Sup. Ct. 1997). LIABILITY INSURANCE See "NO-FAULT" and "WAIVER AND ESTOPPEL." Standard provisions and rights of injured persons. See Ins. Law §3420 (McKinney 2007). General. Insurer assumes both a duty to indemnify insured, that is to pay all covered claims and judgments against insured, and duty to defend any lawsuit brought against insured that alleges and seeks damages for covered events, even if allegations are groundless or false. Texaco A/S v/ Commercial Insurance Co. of Newark, NJ, 160 F.3d 124 (2nd Cir. 1998). Applicable insurance policy provisions must be analyzed to determine whether the insurance coverage is triggered. Continental Casualty Co. v. Employers Insurance Co. of Wausau, 60 A.D.3d 128, 871 N.Y.S.2d 48 (1st Dep't 2008). An insurer's duty to defend is liberally construed and is broader than the duty to indemnify and arises whenever the allegations in a complaint state a cause of action that gives rise to the reasonable possibility of recovery under the policy. If any of the claims against an insured arguably arise from covered events, the insurer is required to defend the entire action and it is immaterial that the complaint against the insured asserts additional claims which fall outside the policy's general coverage. Fieldston Property Owners Ass'n, Inc. v. Hermitage Ins. Co., Inc., 16 N.Y.3d 257, 945 N.E.2d 1013 (2011). An insurer's duty to indemnify the insured may be imposed only in the event that the insured is liable for a loss that is covered by the insurance policy. Bovis Lend Lease LMB, Inc. v. Garito Contracting, Inc., 65 A.D.3d 872, 885 N.Y.S.2d 91 (1st Dep't 2006); Serrano v. Republic Ins., 48 A.D.3d 665, 852 N.Y.S.2d 288 (2d Dep't 2008); Richmond Farms Dairy, LLC v. National Grange Mutual Insurance Co., 60 A.D.3d 1411, 875 N.Y.S.2d 681 (4th Dep't 2009). Pursuant to "claims made policies" an insured's right to coverage is furnished only by policy in existence

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at time claim initially was made. Board of Education, Yonkers City School District v. CNA Insurance Co., 647 F. Supp. 1495 (S.D.N.Y. 1986) aff'd, 839 F.2d 14 (2d Cir. 1988). "Occurrence based policies" covers "occurrences" during policy period regardless of when claims is made. Calocerinos & Spina Consulting Engineers, P.C. v. Prudential Reinsurance Co., 856 F. Supp. 775 (W.D.N.Y. 1994). Accidents. An "accident," for purposes of a liability insurance policy, may be considered an event which is unanticipated and the product of thoughtlessness rather than willfulness. However no all-inclusive definition of `accident' is possible, nor any formulation of a test applicable in every case, for the word has been employed in a number of senses and given varying meanings depending upon the relevant context. Tortoso v. MetLife Auto & Home Ins. Co., 21 A.D.3d 276, 799 N.Y.S.2d 506 (1st Dep't 2005). Accidents under Commercial General Liability policy may include intentional acts. McGroarty v. Great Am. Ins. Co., 36 N.Y.2d 358, 329 N.E.2d 172 (1975), reargument denied, 36 N.Y.2d 874, 332 N.E.2d 364 (1975) (CGL policy covered damages from gradual cracking and settling of building caused by construction on adjacent property even though insured willfully continued construction).; see also, Cont'l Cas. Co. v. Plattsburgh Beauty & Barber Supply, 48 A.D.2d 385, 370 N.Y.S.2d 225 (3d Dep't 1975) (damage/injury caused by wrongful levy by sheriff is "occurrence" within the terms of the liability policy). Interpretation of "accident" presents issue of statutory construction, not a question of disputed fact for trial. Koegler v. Liberty Mut. Ins. Co., 623 F. Supp. 2d 481(S.D.N.Y. 2009). Alleged Assault. Wording of complaint alleging negligence does not control coverage issue where acts constitute an assault. Security guard shot plaintiff; insurer denied coverage under unambiguous language excluding suits based on assault and battery; allegations of "negligent shooting" and "negligent hiring" do not change the proximate cause of injury (i.e. assault and battery). U.S. Underwriters Ins. Co. v. Val-Blue Corp., 85 N.Y.2d 821, 647 N.E.2d 1342 (1995). Where there is intentional discharge of pollutants, lack of intent to harm is irrelevant. Technicon Elecs. Corp. v. Am. Home Assur. Co., 74 N.Y.2d 66, 542 N.E.2d 1048 (1989), reargument denied, 74 N.Y.2d 893, 547 N.E.2d 105 (1989); see also Mount Vernon Fire Ins. Co. v. Creative Hous. Ltd., 88 N.Y.2d 347, 668 N.E.2d 404 (1996). Insurance defense required unless complaint allegations bring the case solely within the policy exclusion for assault. Allstate Ins. Co. v. Mugavero, 79 N.Y.2d 153, 589 N.E.2d 365 (1992).

Assault by employee, neither expected nor intended by insured, covered as "occurrence" and "accident" where policy contained no assault exclusion. Hanover Ins. Co. v. 21 Mott St. Rest. Corp., 95 Misc. 2d 427, 407 N.Y.S.2d 952 (Sup. Ct. Kings County 1978). Occurrence may be accident although result of originally intentional act. McGroarty, 36 N.Y.2d at 364, 329 N.E.2d at 175; see also Nallan v. Union Labor Life Ins. Co., 42 N.Y.2d 884, 366 N.E.2d 874 (1977). Insured fired round of buckshot at front door, patrons' injuries accidental even though act was intentional. Barry v. Romanosky, 147 A.D.2d 605, 538 N.Y.S.2d 14 (2d Dep't 1989). Insured's conviction of intent-based crime precludes coverage. First degree manslaughter conviction confirms intent. Matter of Nassau Ins. Co., 78 N.Y.2d 888, 577 N.E.2d 1039 (1991); D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 564 N.E.2d 634 (1990) (first-degree assault conviction of insured collaterally estopped relitigation of question whether bodily injury was expected or intended by insured and was excluded from coverage under exclusion for bodily injury which was expected or intended by the Insured); see also Allstate Ins. Co. v. Zuk, 78 N.Y.2d 41, 574 N.E.2d 1035 (1991) (criminal conviction did not resolve issue of policy exclusion because policy did not include culpable mental state of a criminal intentional act as defined in the NY Penal Law). Anti-subrogation Rule. The doctrine of antisubrogation is an established principle of insurance law that an insurer may not subrogate against its own insured. North Star Reinsurance v. Continental insurance Company, 82 N.Y.2d 281, 295, 624 N.E.2d 647 (1993). The purpose for the antisubrogation rule is to prevent an insurer who provides coverage to both sides of a third-party action from recouping from one insured the third-party defendant- the payment it makes on behalf of another insured ­ the third-party plaintiff. Fitch v. Turner Construction Co., 241 A.D.2d 166, 671 N.Y.S.2d 446 (1st Dep't 1998). Pursuant to the common-law anti-subrogation rule, an insurer has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered. See ELRAC, Inc. v. Ward, 96 N.Y.2d 58, 748 N.E.2d 1 (2001); McGurran v. DiCanio Planned Development Corp., 216 A.D.2d 538, 628 N.Y.S.2d 773 (2d Dep't 1995); North Star Reinsurance Corp. v. Continental Insurance Co., 82 N.Y.2d 28, 624 NE 2d 647 (1993). The anti-subrogation rule is risk based not insured based. Some risks against an additional insured may be barred while others are not barred. See St. Paul Fire and Marine Insurance Company v. FD Sprinkler Inc., 76 A.D.3d 931, 908 N.Y.S.2d 637 (1st Dep't 2010).

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In North Star Reins. v. Continental, 82 N.Y.2d 281, 624 N.E.2d 647 (1993) the Court of Appeals declined to adopt the "preindemnification doctrine" which bars common law claims for indemnification by a vicariously liable party to the extent that the wrongdoer has obtained insurance for that party against a loss. However, it reaffirmed, the "anti-subrogation rule" which provides that no insurer has a right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered. Thus, where, for example, owners, contractors and/or subcontractors are named as insured's or additional insured's in the same policy or even in separate policies issued by the same insurer, actions between those parties requires careful review of wording in policy or endorsements. See Eric, Inc. v. Ward, 96 N.Y.2d 58, 748 N.E.2d 1 (2001) (antisubrogation no bar to seeking indemnification exceeding statutory limits); Pennsylvania Gen. v. Austin Powder, 68 N.Y.2d 465, 502 N.E.2d 982, (1986); (barred suits to limits of the policy); Kinney v. G.W. Lisk, 76 N.Y.2d 215, 556 N.E.2d 1090 (1990) (breach of agreement to procure insurance subjects subcontractor to full liability of contractor); Homeland Ins. Co. of New York v. Nat'l Grange Mut. Ins. Co., 84 A.D.3d 737, 922 N.Y.S.2d 522 (2d Dept. May 3, 2011) (discussing antisubrogation rule); Maheu v. Long Island Railroad, 188 Misc.2d 414, 729 N.Y.S.2d 301 (NY Sup. 2001) (same); see also 16 COUCH, Ins. 2d § 61:37; Keeton & Widiss, Ins. Law, § 3.10 (a). Where owner of property is an additional insured on contractor's policy, owner is precluded from impleading contractor for indemnity, up to the limit of the policy. An insurer cannot seek recovery from its own insured for damages from a risk for which insured was covered. North Star Reins. Corp. v. Cont'l Ins. Co., 82 N.Y.2d 281, 624 N.E.2d 647 (1993); Pa. Gen. Ins. Co. v. Austin Powder Co., 68 N.Y.2d 465, 502 N.E.2d 982 (1986); Small v. Yonkers Contracting, Inc., 242 A.D.2d 378, 662 N.Y.S.2d 67 (2d Dep't 1997). Antisubrogation rule is rooted in public policy to prevent insurer from passing the incidence of loss to its own insured and to guard against potential conflict of interest that may affect insurer's incentive to provide vigorous defense for its insured. Homeland Ins. Co. of New York v. National Grange Mut. Ins. Co., 84 A.D.3d 737, 922 N.Y.S.2d 522 (2d Dep't 2011). Where same carrier wrote coverage for owner and driver, no cross-claim by owner against driver can be maintained unless amount in complaint exceeds coverage. Schwartz v. S. Lipkin & Son, Inc., 76 A.D.2d 141, 430 N.Y.S.2d 356 (2d Dep't 1980). The antisubrogation rule applies only to the policy limits of the comprehensive general liability policy at issue, and claims for contribution and/or indemnification

beyond the limits of a common insurance policy are not barred." Lodovichetti v. Baez, 31 A.D.3d 718, 818 N.Y.S.2d 470 (2d Dep't 2006). See also Porter v. Annabi, 65 A.D.3d 1322, 885 N.Y.S.2d 769 (2d Dep't 2009); DeJesus v. Tyree Organization, 307 A.D.2d 897, 764 N.Y.S.2d 404 (1st Dep't 2003); Curran v. City of New York, 234 A.D.2d 254, 651 N.Y.S.2d 54 (2d Dep't 1996). Antisubrogation does not apply when insurance policy exclusion or other condition renders the insurance policy inapplicable to a loss. North Star Reinsurance Corporation v. Continental Insurance Company, 82 N.Y.2d 281, 624 N.E.2d 647, 604 N.Y.S.2d 510 (1993); National Union Fire Insurance Pittsburgh, PA v. State Insurance Fund, 222 A.D.2d 369, 636 N.Y.S.2d 31 (1st Dep't 1995); Larson v. City of New York, 214 A.D.2d 413, 625 N.Y.S.2d 898 (1st Dep't 1995); National Union Fire Insurance Pittsburgh, PA v. State Insurance Fund, 266 A.D.2d 518, 699 N.Y.S. 2d 111(2d Dep't 1999); State of New York v. U.W. Marx, Inc., 209 A.D.2d 784, 618 N.Y.S.2d 135 (3d Dep't 1994). Bad Faith. No liability in excess of policy for failure to settle, unless fraud or bad faith by insurer. Best Bldg. Co. v. Employers' Liab. Assur. Corp., 247 N.Y. 451, 160 N.E. 911 (1928); see also U.S. Fid. & Guar. Co. v. Copfer, 48 N.Y.2d 871, 400 N.E.2d 298 (1979). Insurer has implied duty to act in good faith and make reasonable attempt to settle within policy limits and only if insurer acts in "gross disregard" of insured's interest may insured recover. Pavia v. State Farm Mut. Auto. Ins. Co., 82 N.Y.2d 445, 626 N.E.2d 24 (1993), reargument denied, 83 N.Y.2d 779, 633 N.E.2d 480 (1994). Bad faith to settle under a liability insurance contract is established only where the liability is clear and the potential recovery far exceeds the insurance coverage; it requires an extraordinary showing of a disingenuous or dishonest failure to carry out a contract. CBLPath, Inc. v. Lexington Ins. Co., 73 A.D.3d 829, 900 N.Y.S.2d 462 (2d Dep't 2010). Where insured is insolvent, or only barely solvent, judgment in excess of policy amount as result of "bad faith" is not measure of damages, since such judgment would be uncollectible. Gordon v. Nationwide Mut. Ins. Co., 30 N.Y.2d 427, 285 N.E.2d 849 (1972), reargument denied, 31 N.Y.2d 709, 289 N.E.2d 569 (1972), cert. denied, 410 U.S. 931, 93 S. Ct. 1374 (1973). Plaintiff must prove more than mere negligence of insurer. Proof must show refusal to settle within policy was deliberate or at least in reckless disregard of interests of insured. Roldan v. Allstate Ins. Co., 149 A.D.2d 20, 544 N.Y.S.2d 359 (2d Dep't 1989). There is no formula to determine whether insurer acted in good faith in rejecting settlement offer; court must assess, among other factors, plaintiff's likelihood of success on issue of liability, potential damages award, financial

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burden on each party if insurer refuses to settle, whether claim was properly investigated, information available to insurer when the demand for settlement was made, and any other relevant proof tending to establish or negate the insurer's good faith in refusing to settle. Federal Ins. Co. v. North American Specialty Ins. Co., 83 A.D.3d 401, 921 N.Y.S.2d 28 (1st Dep't 2011). Where carrier defended two parties with conflicting interests, they are liable for all damages resulting from such conduct, including damages in excess of policy limits. Cornwell v. Safeco Ins. Co. of Am., 42 A.D.2d 127, 346 N.Y.S.2d 59 (4th Dep't 1973); Cappano v. Phoenix Assurance Co., 28 A.D.2d 639, 280 N.Y.S.2d 695 (4th Dep't 1967). Insured who steadfastly proclaims his own freedom from fault cannot complain if his carrier believes him and acts accordingly. Pipoli v. United States Fid. & Guar. Co., 38 A.D.2d 249, 328 N.Y.S.2d 688 (1st Dep't 1972), aff'd, 31 N.Y.2d 679, 289 N.E.2d 178 (1972); Colbert v. Home Indem. Co., 35 A.D.2d 326, 315 N.Y.S.2d 949 (4th Dep't 1970). Tender of policy limits on eve of trial, while material to issue of "bad faith," does not always operate without more to exonerate carrier from preexisting liability for such failure to settle within policy limits. Knobloch v. Royal Globe Ins. Co., 38 N.Y.2d 471, 344 N.E.2d 364 (1976) (noting insurer failed to answer insured's inquiry as to offers and demands, and insurer failed to show any proof of significant settlement evaluation). An insurer's failure to advise insured of settlement negotiations may be evidence of bad faith. Smith v. Gen. Acc. Ins. Co., 91 N.Y.2d 648, 697 N.E.2d 168 (1998). Punitive damages dismissed, must show high moral turpitude as to imply criminal indifference to civil obligation. Reifenstein v. Allstate Ins. Co., 92 A.D.2d 715, 461 N.Y.S.2d 104 (4th Dep't 1983). Breach of Warranty. Insured's breach of warranty in its insurance policy bars recovery if breach materially increases risk of loss, damage or injury within the policy. Ins. Law § 3106 (b); M. Fabrikant & Sons v. Overton & Co. Customs Brokers, Inc., 209 A.D.2d 206, 618 N.Y.S.2d 294 (1st Dep't 1994). Insurer is not required to prove that alleged misrepresentations made by insureds on application were intentional; rather, insurer is required to submit proof concerning its underwriting practices with respect to applicants with similar circumstances, in order to meet its burden of establishing that it would not have issued the same policy had the correct information been included in the application. Rafi v. Rutgers Cas. Ins. Co., 59 A.D.3d 1057, 872 N.Y.S.2d 799 (4th Dep't 2009). Ordinarily it is issue of fact for jury. Sebring v. Fidelity-Phenix Fire Ins. Co. of NY, 255 N.Y. 382, 174 N.E. 761 (1931). If evidence is clear and

substantially uncontradicted, then it is an issue of law for the court. Process Plants Corp. v. Beneficial Nat'l Life Ins. Co., 53 A.D.2d 214, 385 N.Y.S.2d 308 (1st Dep't 1976), aff'd, 42 N.Y.2d 928, 366 N.E.2d 1361 (1977). Cancellation. Auto insurers must give named insured 20 days' notice of cancellation, 15 days' notice of cancellation for premium non-payment; see N.Y. Veh. & Traf. Law § 313. Statute abrogates insurers' common law right to rescind policy for fraud or misrepresentation. Aetna Cas. & Sur. Co. v. O'Connor, 8 N.Y.2d 359, 170 N.E.2d 681 (1960); see also Travelers Indem. Co. v. Avelino, 191 A.D.2d 229, 594 N.Y.S.2d 249 (1st Dep't 1993). Insurer may rescind where claimant participated in fraud. See also "CANCELLATION." Compromise of Claims. Under public liability policy insurer has complete control of defense. May settle or litigate at option and cannot be held liable [except for gross negligence, for failure to settle if possible] within policy limits, with result and judgment in excess of those limits which excess insured must pay. Best Bldg. Co. v. Employers' Liab. Assur. Corp., 247 N.Y. 451, 456, 160 N.E. 911, 913 (1928); Auerbach v. Md. Cas. Co., 236 N.Y. 247, 140 N.E. 577 (1923). see also "SETTLEMENT." Concurrent Coverage. Two Commercial General Liability policies to same insured for same risk creates coinsurers even if one insured is an additional insured on its policy and both policies purport to be primary insurance. B.K. Gen. Contractors v. Mich. Mut. Ins. Co., 204 A.D.2d 584, 612 N.Y.S.2d 198 (2d Dep't 1994). Analyze "other insurance clauses" to evaluate the manner in which the co-insurers will contribute towards the defense costs and indemnity payments. Where same carrier wrote coverage for owner and driver, no cross-claim by owner against driver can be maintained unless amount in complaint exceeds coverage. Schwartz v. S. Lipkin & Son, Inc., 76 A.D.2d 141, 430 N.Y.S.2d 356 (2d Dep't 1980). Basis of contribution for liability based on ownership is according to ownership interest and not by arithmetical method of dividing judgment by number of persons against whom obtained. Wold v. Grozalsky, 277 N.Y. 364, 14 N.E.2d 437 (1938). Same rule applied in automobile collision case involving guest suit and each joint tortfeasor would pay his proportionate share of the injured party's damages. Martindale v. Griffin, 233 A.D. 510, 253 N.Y.S. 578 (4th Dep't 1931), aff'd, 259 N.Y. 530, 182 N.E. 167 (1932). Commercial General Liability policy which excludes coverage for injuries to employees of insured under Cross Liability Endorsement applies where the in---- For Current Listings access www.ambest.com/legal----

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jured party was an employee of another insured under the policy. DRK, LLC v. Burlington Ins. Co., 74 A.D.3d 693, 905 N.Y.S.2d 58 (1st Dep't 2010); Tardy v. Morgan Guar. Trust Co., 213 A.D.2d 296, 624 N.Y.S.2d 34 (1st Dep't 1995). Where issue of liability as between defendants was not litigated in third party negligence suit, and jury held both as joint tortfeasors, defendants in separate action are not precluded on that issue by statute, unless judgment in negligence suit based on facts which preclude liability. Employers' Liab. Assur. Corp. v. Post & McCord, 286 N.Y. 254, 36 N.E.2d 135 (1941). Consequential Damages. Insured may recover consequential damages in excess of policy limits for a firstparty insurer's breach of contract even in the absence of a policy provision permitting their recovery. "Consequential damages" flow naturally and foreseeably from a breach but are beyond the direct damages that the parties actually contemplated, or probably contemplated, when contract was made, namely losses, other than insurance benefits, that are suffered by policyholders arising from their insurers' failure promptly to investigate and pay claims. Bi­Economy Market, Inc. v. Harleysville Ins. Co. of New York, 10 N.Y.3d 187, 886 N.E.2d 127 (2008); Panasia Estates, Inc. v. Hudson Ins. Co., 10 N.Y.3d 200, 886 N.E.2d 135 (2008). Contractual Duty. Contractual duty to maintain insurance for another did not require coverage for that party's negligence. Nuzzo v. Griffin Tech. Inc., 212 A.D.2d 980, 624 N.Y.S.2d 703 (4th Dep't 1995). Cooperation of Insured. When insured deliberately fails to cooperate with its insurer in investigation of covered incident as required by policy, insurer may disclaim coverage; to meet its very heavy burden, insurer must establish that it diligently acted in seeking cooperation of insured, that its efforts were reasonably calculated to bring about insured's cooperation, and that insured's attitude was one of willful and avowed obstruction. State Farm Indem. Co. v. Moore, 58 A.D.3d 429, 872 N.Y.S.2d 82 (1st Dep't 2009). In Defense of Action. Failure of insured to cooperate with company in defense of negligence action, even though such cooperation might not defeat plaintiff's claim, constitutes good defense by company in action by injured person against it on judgment against insured which has been returned unsatisfied. Schoenfeld v. N.J. Fid. & Plate Glass Ins. Co., 203 A.D. 796, 197 N.Y.S. 606 (2d Dep't 1922). While insured is not obliged to combine with insurer in presentation of sham defense, he is required to fairly and frankly disclose all facts necessary to enable insurer to determine if there is valid defense. Coleman v. New Amsterdam Cas. Co., 247 N.Y.

271, 160 N.E. 367 (1928). Insurer is entitled to assert, in action by injured party, any defense it might have asserted against insured. Gerka v. Fid. & Cas. Co., 251 N.Y. 51, 167 N.E. 169 (1929). Testimony of insured at trial on facts, which materially conflicted with his signed statement, held failure of cooperation. See also discussion of lack of evidence of collusion. Shafer v. Utica Mut. Ins. Co., 248 A.D. 279, 289 N.Y.S. 577 (4th Dep't 1936). Jury found failure of cooperation where insured corporation refused to verify answer denying negligence arguing its driver was negligent as to plaintiff, officer in insured corporation. Mangano v. Sunbright Steam Laundry Co., 248 A.D. 731, 289 N.Y.S. 831 (2d Dep't 1936), aff'd, 273 N.Y. 642, 8 N.E.2d 34 (1937). Generally question of cooperation is issue of fact for jury. Compare Am. Sur. Co. v. Diamond, 1 N.Y.2d 594, 136 N.E.2d 876 (1956) (holding not breach of cooperation clause if insured refuses to verify third party complaint); Albert v. Pub. Serv. Mut. Cas. Ins. Corp., 266 A.D. 284, 42 N.Y.S.2d 124 (1st Dep't 1943), aff'd, 292 N.Y. 633, 55 N.E.2d 507 (1944) (no breach where insured changed facts between policy statement and trial testimony), United States Fid. & Guar. Co. v. Von Bargen, 7 A.D.2d 872, 182 N.Y.S.2d 121 (2d Dep't 1959), aff'd, 7 N.Y.2d 932, 165 N.E.2d 579 (1960) (insured breached by contradicting facts in written statement to insurer at motor vehicle hearing and depositions); Schafer, 248 A.D. at 285, 289 N.Y.S. at 583 (4th Dep't 1936) (breach where insured gave no notice of negligent facts until trial). Insured's admission of negligence held not failure to cooperate. Wenig v. Glens Falls Indem. Co., 294 N.Y. 195, 61 N.E.2d 442 (1945). Defense of Suit. An insurer's duty to defend is liberally construed and is broader than the duty to indemnify and arises whenever the allegations in a complaint state a cause of action that gives rise to the reasonable possibility of recovery under the policy. If any of the claims against an insured arguably arise from covered events, the insurer is required to defend the entire action and it is immaterial that the complaint against the insured asserts additional claims which fall outside the policy's general coverage. Fieldston Property Owners Ass'n, Inc. v. Hermitage Ins. Co., Inc., 16 N.Y.3d 257, 945 N.E.2d 1013 (2011) (CGL policy's primacy on injurious falsehood claim asserted against insured in two tort actions triggered primary duty to defend against remaining causes of action in those actions, without contribution from insured's Director & Officer liability insurer, although the Director & Officer insurer had an obligation to indemnify insured for a greater proportion of the

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causes of action where Director & Officer policy provided that its coverage was excess where any loss arising from any claim made against insured was insured under any other valid policies, and included defense costs in its definition of loss); Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304, 476 N.E.2d 272 (1984); Spoor-Lasher Co. v. Aetna Cas. & Sur. Co., 39 N.Y.2d 875, 352 N.E.2d 139 (1976); Sturges Mfg. Co. v. Utica Mut. Ins. Co., 37 N.Y.2d 69, 332 N.E.2d 319, 371 N.Y.S.2d 444 (1975); Baron v. Home Ins. Co., 112 A.D.2d 391, 492 N.Y.S.2d 50 (2d Dep't 1985). Obligation to defend is broader than duty to pay. Goldberg v. Lumber Mut. Cas. Ins. Co. of N.Y., 297 N.Y. 148, 77 N.E.2d 131 (1948). Duty to defend extends to any action, however groundless, false or fraudulent, in which facts alleged in complaint are within policy. Prashker v. United States Guarantee Co., 1 N.Y.2d 584, 136 N.E.2d 871 (1956); see also Int'l Paper Co. v. Cont'l Cas. Co., 35 N.Y.2d 322, 320 N.E.2d 619 (1974); Lionel Freedman, Inc. v. Glens Falls Ins. Co., 27 N.Y.2d 364, 267 N.E.2d 93 (1971), reargument denied, 28 N.Y.2d 859, 271 N.E.2d 236 (1971). If any of the claims against an insured arguably arise from covered events, the insurer is required to defend the entire action. Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 98 N.Y.2d 435, 443, 779 N.E.2d 167 (2002). However, mere use of negligence allegation in complaint does not override obvious facts of assault and battery in a shooting. U.S. Underwriters Ins. Co. v. ValBlue Corp., 85 N.Y.2d 821, 823, 647 N.E.2d 1342, 1344 (1995). Lack of intent to cause harm irrelevant in deciding intentional nature of the act. Id. However, no duty to defend or indemnify insured defendant, under homeowner policy where allegations of sexual acts and abuse of young children. Such conduct could not possibly result in unintended injuries, as alleged in complaint. Mugavero, 79 N.Y.2d at 162-63, 589 N.E.2d at 370-71. Insured may not be awarded attorney fees or other expenses in prosecution of declaratory suit against insurer to decide coverage whereas insured may be entitled to such an award when action commenced by insurer. Mighty Midgets, Inc. v. Centennial Ins. Co., 47 N.Y.2d 12, 389 N.E.2d 1080, 416 N.Y.S. 2d 559 (1979); Grimsey v. Lawyers Title Ins. Co., 31 N.Y.2d 953, 293 N.E.2d 249 (1972); Niagara County v. Utica Mut. Ins. Co., 103 Misc. 2d 814, 427 N.Y.S.2d 171 (Sup. Ct. 1980), aff'd, 80 A.D.2d 415, 439 N.Y.S.2d 538 (4th Dep't 1981), appeal dismissed, 54 N.Y.2d 608, 427 N.E.2d 1191 (1981); Johnson v. Gen. Mut. Ins. Co., 24 N.Y.2d 42, 246 N.E.2d 713 (1969); Glens Falls Ins. Co. v. United States

Fire Ins. Co., 41 A.D.2d 869, 342 N.Y.S.2d 624 (3d Dep't 1973), motion denied, 33 N.Y.2d 633, 301 N.E.2d 552, (1973), aff'd, 34 N.Y.2d 778, 315 N.E.2d 813 (1974). Where insurer breaches contractual duty to defend its insured in personal injury action, and insured thereafter concludes reasonable settlement with injured party, insurer's duty to indemnify requires covered loss, but plenary trial of issue is not always necessary. Servidone Constr. Corp. v. Sec. Ins. Co., 64 N.Y.2d 419, 477 N.E.2d 441 (1985). When an insurer's interest in defending a lawsuit is in conflict with the defendant's interest because there are causes of action which are covered and others which are not, the insured is entitled to defense by an attorney of his own choosing, whose reasonable fee is to be paid by the insurer. Public Service Mut. Ins. Co. v. Goldfarb, 53 N.Y.2d 392, 425 N.E.2d 810, 442 N.Y.S.2d 422 (1981); Prashker, supra, 1 N.Y.2d at 593, 136 N.E.2d at 876; Utica Mut. Ins. Co. v. Cherry, 45 A.D.2d 350, 358 N.Y.S.2d 519 (2d Dep't 1974), motioned denied, 35 N.Y.2d 791, 320 N.E.2d 871 (1974), aff'd, 38 N.Y.2d 735, 343 N.E.2d 758 (1975). Insurer's refusal to appeal from adverse judgment entitled insured to recover expenses of successful appeal although in excess of policy limits. Brassil v. Md. Cas. Co., 210 N.Y. 235, 104 N.E. 622 (1914); Kaste v. Hartford Accident & Indem. Co., 5 A.D.2d 203, 170 N.Y.S.2d 614 (1st Dep't 1958); see also Grand Union Co. v. Gen. Accident & Life Assur. Corp., 279 N.Y. 638, 18 N.E.2d 38 (1938). Duty to appeal if there are reasonable grounds. Fidelity Gen. Ins. Co. v. Aetna Ins. Co., 27 A.D.2d 932, 278 N.Y.S.2d 787 (2d Dep't 1967). Policy covering claims against insured for damages for injuries suffered by person other than employee, resulting from ownership, care, maintenance, occupation or use of premises, or from business operations of insured, requires company to defend action for assault by insured's employee, such injuries having been "accidentally suffered." Floralbell Amusement Corp. v. Standard Sur. & Cas. Co., 256 A.D. 221, 9 N.Y.S.2d 524 (1st Dep't 1939). Insurer required to continue defense of actions against insured or new actions instituted though coverage limit is exhausted depending on policy wording. Am. Employers Ins. Co. v. Goble Aircraft Specialties, 205 Misc. 1066, 131 N.Y.S.2d 393 (Sup. Ct. 1954). Disclosure. Other parties can obtain discovery of contents of defendant's insurance policy. CPLR §3101. Disclaimer. Must be prompt and issued as "soon as is reasonably possible." Ins. Law § 3420 (d). Insurance

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Law § 3420 (d) applies only to claims for death and bodily injury. Travelers Indem. Co. v. Orange and Rockland Utilities, Inc., 73 A.D.3d 576, 905 N.Y.S.2d 11 (1st Dep't 2010) (inapplicable to pollution claim). Fairmont Funding, Ltd. v. Utica Mut. Ins. Co., 264 A.D.2d 581, 694 N.Y.S.2d 389 (1st Dep't 1999) (inapplicable to misfeasance claim). For purposes of statute requiring an insurer to provide a written disclaimer "as soon as is reasonably possible," the insurer bears the burden of justifying any delay. Republic Franklin Ins. Co. v. Pistilli, 16 A.D.3d 477, 791 N.Y.S.2d 639 (2d Dep't 2005). An insurer's failure to comply with statute requiring insurers to give written notice as soon as is reasonably possible of a disclaimer of liability or denial of coverage precludes it from denying coverage based upon a policy exclusion. City of New York v. St. Paul Fire and Marine Ins. Co., 21 A.D.3d 978, 801 N.Y.S.2d 362 (2d Dep't 2005). See also First Financial Ins. Co. v. Jetco Contracting Corp., 1 N.Y.3d 64, 801 N.E.2d 835, 769 N.Y.S.2d 459 (2003) (delay of 48 days in giving written notice of disclaimer of coverage held unreasonable); West 16th Street Tenants Corp. v. Public Service Mut. Ins. Co., 290 A.D.2d 278, 736 N.Y.S.2d 34 (1st Dep't 2002) (30 day delay in disclaiming coverage under primary and umbrella CGL policies for underlying personal injury action held unreasonable); Banuchis v. Government Employees Ins. Co., 14 A.D.3d 581, 789 N.Y.S.2d 221 (2d Dep't 2005) (delay of 62 days between the excess liability insurer's receipt of notice of claim and the insurer's notice of disclaimer based on lack of timely notification held unreasonable); Allstate Ins. Co. v. Gross, 27 N.Y.2d 263, 265 N.E.2d 736 (1970). Four and one-half month delay by insurer unreasonable. Zook v. Hartford Accident & Indem. Co., 64 A.D.2d 701, 407 N.Y.S.2d 570 (2d Dep't 1978). Nine month delay unreasonable. Long Island Ins. Co. v. Graziano, 64 A.D.2d 944, 408 N.Y.S.2d 145 (2d Dep't 1978). Defending may estop disclaimer. DiMartile v. Country-Wide Ins. Co., 86 Misc. 2d 36, 381 N.Y.S.2d 579 (Sup. Ct. 1975), aff'd, 51 A.D.2d 869, 379 N.Y.S.2d 684 (4th Dep't 1976); Newman v. Ketani, 54 A.D.2d 926, 388 N.Y.S.2d 128 (2d Dep't 1976). Employer/Employee. Standard Commercial General Liability excludes suits, direct or indirect, by employees of the insured. Contractual Coverage in Commercial General Liability shifts employer's liability coverage from workers' compensation policy to Commercial General Liability. Exclusion in commercial general liability policy against contractually assumed indemnification claims does not bar coverage for common-law liability, and

common-law liability excluding contractual liability may coexist. White v. Hotel D'Artistes, Inc., 230 A.D.2d 657, 646 N.Y.S.2d 793 (1st Dep't 1996). Workers' Compensation Law § 11, amended January, 1996, limits rights of third parties to implead injured plaintiff's employer for indemnification or contribution unless injuries are "grave." It is not retroactive. N.Y. Workers' Comp. Law § 11 (McKinney 2007) (also known as Omnibus Workers Compensation Act); Majewski v. Broadalbin-Perth Cent. Sch. Dist., 91 N.Y.2d 577, 696 N.E.2d 978 (1998); Small v. Yonkers Contracting, Inc., 242 A.D.2d 378, 662 N.Y.S.2d 67 (2d Dep't 1997); Morales v. Gross, 230 A.D.2d 7, 657 N.Y.S.2d 711 (2d Dep't 1997). Excess Insurer. Where insured did not timely file claim against primary insurer, had no duty to serve notice of disclaimer. Allcity Ins. Co. v. Sioukas, 51 A.D.2d 525, 378 N.Y.S.2d 711 (1st Dep't 1976), aff'd, 41 N.Y.2d 872, 362 N.E.2d 623 (1977); State Farm Mut. Auto. Ins. Co. v. Elgot, 48 A.D.2d 362, 369 N.Y.S.2d 719 (1st Dep't 1975). Duty of primary carrier to excess carrier is same duty primary owes to its insured. Violation of this fiduciary duty exposes primary to liability beyond its policy. Hartford Acc. & Indem. Co. v. Michigan Mut. Ins. Co., 93 A.D.2d 337, 462 N.Y.S.2d 175 (1st Dep't 1983), aff'd, 61 N.Y.2d 569, 463 N.E.2d 608 (1984). To establish bad faith, excess insurer must show that primary insurer's conduct constituted a gross disregard of excess insurer's interests and that primary insurer's conduct involved a deliberate or reckless failure to place such interests on equal footing with its own interests when considering settlement offer. Federal Ins. Co. v. North American Specialty Ins. Co., 83 A.D.3d 401, 921 N.Y.S.2d 28 (1st Dep't 2011). Insolvency of Insurer. State Insurance Department Liquidation Bureau, on filing of proper proof of claim undertakes claims and defense of suits as to insurers admitted to do business in New York State. Statute fixes maximum amount of coverage and the limitations. Ins. Law. Art. 74. Miscellaneous Coverage. Spouses Coverage. Implied statutory exclusion of spouse in liability coverage where suit is by other spouse applies only in direct suits where injured spouse must prove culpable conduct (negligence) of insured spouse, not in counterclaims or impleaders. Ins. Law. § 3420(g). Purpose of statute was to protect carriers against collusive suits between spouses. United States Fid. & Guar. Co. v. Franklin, 74 Misc. 2d 506, 344 N.Y.S.2d 251 (Sup. Ct. 1973), aff'd, 43 A.D.2d 844, 352 N.Y.S.2d 1009 (2d Dep't 1974). Driver of insured vehicle covered under named insured's policy in injury suit by named

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insured passenger against his driver. Aetna Cas. & Sur. Co. v. Gen. Cas. Co. of Am., 285 A.D. 767, 140 N.Y.S.2d 670 (1st Dep't 1955). Child can sue parent for negligent operation of a motor vehicle. Holodook, 36 N.Y.2d at 40, 324 N.E.2d at 340, called into question, Nolechek, 46 N.Y.2d 332 (1978). Intra-family immunity for unintentional torts abolished. Mother passenger sues 16 year old unemancipated son for negligent driving. Gelbman v. Gelbman, 23 N.Y.2d 434, 245 N.E.2d 192, 297 N.Y.S.2d 529 (1969); see also Warrens, Vol. 1B, pg. 297. Public Liability policy gives separate obligations to each insured, and assault by one insured partner does not relieve insurer's obligation to other insured partner. Morgan v. Greater N.Y. Taxpayers Mut. Ins. Ass'n, 305 N.Y. 243, 112 N.E.2d 273 (1953); see also Wenig, 294 N.Y. at 201-02, 61 N.E.2d at 445. Assault at direction of manager and president of insured corporation excluded coverage. De Luca v. Coal Merchs. Mut. Ins. Co., 203 Misc. 261, 59 N.Y.S.2d 664 (App. Term 1945). Employee of carpet company, who injured driver employee of trucking company while loading truck owned by insured trucking company is additional insured under trucking company policy and employeeworkers compensation exclusion not applicable. Greaves v. Pub. Serv. Mut. Ins. Co., 5 N.Y.2d 120, 155 N.E.2d 390 (1959). Go-cart powered by 1½ h.p. engine and built by named insured's son which while on highway collided with infant on bike, was not covered under auto policy nor Commercial Property Liability policy. Stevenson v. Merchs. Mut. Ins. Co., 37 Misc. 2d 996, 235 N.Y.S.2d 589 (Sup. Ct. 1962). Mobile power crane not covered under automobile policy. Liberty Mut. Ins. Co. v. Dooley Elec. Co., 133 N.Y.S.2d 785 (Sup. Ct. 1954). Motorized bicycle is "motor vehicle" within N.Y. Veh. & Traf. Law. Lalomia v. Bankers & Shippers Ins. Co., 35 A.D.2d 114, 312 N.Y.S.2d 1018 (2d Dep't 1970), aff'd, 31 N.Y.2d 830, 291 N.E.2d 724 (1972), holding limited by, Mount Vernon Fire Ins. Co., 88 N.Y.2d 347 (1996); Geiger v. Ins. Co. of N. Am., 41 A.D.2d 796, 341 N.Y.S.2d 481 (3d Dep't 1973). Homeowner's Policy Exclusion for Occurrences "arising out of the ownership, maintenance or use of... a motor vehicle" does not include alleged negligent entrustment of a three wheeled all terrain motor vehicle to insured's son. Cone v. Nationwide Mut. Fire Ins. Co., 75 N.Y.2d 747, 551 N.E.2d 92 (1989). Motorized mini-cycle not covered under homeowner's policy because of exclusion, but must defend action for negligently entrusting dangerous instrument to young child. Travelers Ins. Co. v. Beschel, 71 Misc. 2d 420,

336 N.Y.S.2d 370 (Sup. Ct. 1972). Three-wheeled motorized vehicle is a motor vehicle, as excluded in homeowner's policy. Byer v. Cont'l Ins. Co., 155 A.D.2d 503, 547 N.Y.S.2d 363 (2d Dep't 1989), rev'd on other grounds, 161 A.D.2d 744, 558 N.Y.S.2d 847 (2d Dep't 1990); see Cone v. Nationwide Mut. Fire Ins. Co., 75 N.Y.2d 747 (1989). Policy provided that replacement of insured vehicle would be covered if company notified of replacement within 30 days. Held, replacement covered for 30 day period though insurer not notified. Melendez v. Gen. Accident, Fire & Life Assurance Corp., 189 Misc. 392, 70 N.Y.S.2d 404 (Sup. Ct. 1947), aff'd, 273 A.D. 960, 79 N.Y.S.2d 307 (1st Dep't 1948), appeal and reargument denied, 274 A.D. 763, 80 N.Y.S.2d 725 (1st Dep't 1948). Insured sold automobile, same day purchased another, sold that one 7 days later; 49 days later and purchased another; no coverage, insurer not having been notified within 30 days from first replacement. Schaller v. Aetna Cas. & Sur. Co., 280 A.D. 988, 116 N.Y.S.2d 729 (2d Dep't 1952), aff'd, 306 N.Y. 725, 117 N.E.2d 908 (1954). Omnibus clause was never intended to extend liability of insurer of registered owner to cover negligent driver to whom auto had been sold or otherwise transferred. Mason v. Allstate Ins. Co., 12 A.D.2d 138, 209 N.Y.S.2d 104 (2d Dep't 1960). Ways immediately adjoining premises includes accident at or near far curb of roadway separated from premises by sidewalk. Pub. Serv. Mut. Ins. Co. v. Jacobs, 161 N.Y.S.2d 791 (Sup. Ct. 1952), aff'd, 282 A.D. 1041, 126 N.Y.S.2d 903 (1st Dep't 1953), appeal denied, 283 A.D. 696, 128 N.Y.S.2d 532 (1st Dep't 1954). Accident, as used in liability policy, covers unintentional resulting damages, and therefore injuries accidental even though original acts may have been intentional. "Transaction as whole" test is to be applied by jury. Plaintiff's building gradually cracked and settled due to defendant's excavation and construction on adjacent property. McGroarty, 36 N.Y.2d at 365, 329 N.E.2d at 176. Loading and Unloading. "Complete Operation" doctrine followed. Wagman v. Am. Fid. & Cas. Co., 304 N.Y. 490, 109 N.E.2d 592 (1952); see also Lowry v. R.H. Macy & Co., 119 N.Y.S.2d 5 (Sup. Ct. 1952). Doctrine of Mysterious Disappearance and its presumptions discussed. Casey v. London & Lancashire Indem. Co., 204 Misc. 1106, 126 N.Y.S.2d 726 (Albany City Ct. 1953), aff'd, 5 A.D.2d 724, 168 N.Y.S.2d 692 (3d Dep't 1957).

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Non-Waiver Agreements and Reservation of Rights Letters. Insurer conducting defense of action against insured under non-waiver agreement, does not waive breach of policy condition. Frank Knauss, Inc. v. Indem. Ins. Co., 270 N.Y. 211, 200 N.E. 791 (1936); Weatherwax v. Royal Indem. Co., 250 N.Y. 281, 165 N.E. 293 (1929). The purpose of a reservation of rights letter is to prevent an insured's detrimental reliance on the defense provided by the insurer. The reservation is a sufficient preventative to reliance even if the insurer later disclaims on a basis different from the ground originally asserted in the reservation of rights. Federated Dept. Stores, Inc. v. Twin City Fire Ins. Co., 28 A.D.3d 32, 807 N.Y.S.2d 62 (1st Dep't 2006); An insurer will not be estopped from disclaiming coverage where it timely reserved right to claim that the policy does not cover the situation at issue while defending the action. Progressive Northeastern Ins. Co. v. Farmers New Century Ins. Co., 83 A.D.3d 1519, 921 N.Y.S.2d 773 (4th Dep't 2011). However, a reservation of rights letter does not constitute an effective notice of disclaimer. Blue Ridge Ins. Co. v. Jiminez, 7 A.D.3d 652, 777 N.Y.S.2d 204 (2d Dep't 2004). Notice. Pursuant to a 2008 legislative amendment to Insurance Law §3420 ( see L. 2008, ch. 388, § 4), where an insurer alleges that it was prejudiced as a result of a failure to provide timely notice, the burden shall be on the insurer to prove that it has been prejudiced if the notice was provided within two years of the time required under the policy. The legislative amendment establishing a required prejudice showing under the specified circumstances applies to policies issued or delivered in New York on or after January 17, 2009 and not to policies issued and delivered before that date. Tower Ins. Co. of New York v. Classon Heights, LLC, 82 A.D.3d 632, 920 N.Y.S.2d 58 (1st Dep't 2011); Ponok Realty Corp. v. United Nat. Specialty Ins. Co., 69 A.D.3d 596, 893 N.Y.S.2d 125 (2d Dep't 2010); See also New York State Insurance Department General Counsel Opinion 09-0608 (June 23, 2009) Interpreting the Amendments to Insurance Law § 3420; New York State Insurance Department General Counsel Opinion 09-01-05 (January 13, 2009). Compliance with an insurance policy notice provision operates as a condition precedent to coverage, and, absent a showing of legal justification, failure to comply with the notice condition vitiates coverage. Paramount Ins. Co. v. Rosedale Gardens, Inc., 293 A.D.2d 235, 743 N.Y.S.2d 59 (1st Dep't 2002).

Determination of whether notice was timely under "as soon as practicable" language is based on what a reasonable insured would believe under a full assessment of all of the facts and circumstances of the matter. Mighty Midgets, Inc. v. Centennial Ins. Co., 47 N.Y.2d 12, 389 N.E.2d 1080, 416 N.Y.S.2d 559 (1979); Tesler v. Paramount Ins. Co., 220 A.D.2d 334, 633 N.Y.S.2d 119 (1st Dep't 1995) (alleged noncompliance with notice provisions of policy could not excuse insurer's duty to defend where insureds demonstrated good faith and reasonable belief in their nonliability, their insurance agent having advised them to that effect, and there otherwise had been no indication that liability claim would be brought against them); Kambousi Restaurant, Inc. v. Burlington Ins. Co., 58 A.D.3d 513, 871 N.Y.S.2d 129 (1st Dep't 2009) (if the insured has established an objectively reasonable good-faith belief of nonliability, said belief may excuse the claimed untimely notice). Where policy required immediate notice of accident, failure of insured to give reasonable explanation of twenty-two day delay barred recovery under policy. Rushing v. Commercial Cas. Ins. Co., 251 N.Y. 302, 167 N.E. 450 (1929). Determining a reasonable time is a question of law when the facts are undisputed and different inferences cannot be reasonably drawn from the facts. Greenwich Bank v. Hartford Fire Ins. Co., 250 N.Y. 116, 164 N.E. 876 (1928), reargument denied, 250 N.Y. 587, 166 N.E. 334 (1929). An insured's ignorance of his or her insurance carrier constitutes "gross negligence" and is not a valid excuse for the failure to provide the carrier with timely notice. Eagle Ins. Co. v. Garcia, 280 A.D.2d 476, 720 N.Y.S.2d 172 (2d Dep't 2001). Under particular circumstances of case, notice by injured party 13 months after accident held timely. Lauritano v. Am. Fid. Fire Ins. Co., 4 N.Y.2d 1028, 152 N.E.2d 546 (1958). Reasonable notice to carrier required by injured party is necessarily measured by standards different than those applied to insured. Price v. Allstate Ins. Co., 12 A.D.2d 911, 210 N.Y.S.2d 945 (1st Dep't 1961); see also Matthews v. Glens Falls Ins. Co., 21 Misc. 2d 1079, 192 N.Y.S.2d 811 (Sup. Ct. 1959) (holding 4 month delay reasonable under the circumstances). Late notice violating policy was found in following: fifty-one days. Deso v. London & Lancashire Indem. Co., 3 N.Y.2d 127, 143 N.E.2d 889 (1957); twentyseven days. Reina v. United States Cas. Co., 228 A.D. 108, 239 N.Y.S. 196 (1st Dep't 1930), aff'd, 256 N.Y. 537, 177 N.E. 130 (1931); twenty-two days. Rushing, 251 N.Y. at 304, 167 N.E. at 451; thirty days. Mason v. Allstate Ins. Co., 12 A.D.2d 138, 209 N.Y.S.2d 104 (2d

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Dep't 1960); and forty-nine days. Abitante v. Home Indem. Co., 240 A.D. 553, 270 N.Y.S. 641 (1st Dep't 1934). Broker's mistake in notifying wrong insurance carrier of leakage of oil from underground storage tank at their premises did not excuse insureds' 21 month late notice of occurrence to its insurer, and thus insurer was not obligated under homeowners' liability insurance policy to indemnify insureds for costs of environmental remediation. Blue Ridge Ins. Co. v. Biegelman, 36 A.D.3d 736, 829 N.Y.S.2d 575 (2d Dep't 2007); But see Cherry Hill Textiles, Inc. v. Insurance Co. of Pennsylvania, 276 A.D.2d 519, 714 N.Y.S.2d 301 (2d Dep't 2000) (insureds gave timely notice of their loss where their fourmonth delay in reporting their loss to the insurer was based upon their broker's faulty advice that the property insurance policy had been cancelled, which was in turn induced by the insurer's error in issuing a defective notice of cancellation). Sixteen month delay in giving notice, without any credible explanation by insured contractor, is not notice "as soon as practical after accident or notice of claim." Empire City Sub. Co. v. Greater N.Y. Mut. Ins. Co., 35 N.Y.2d 8, 315 N.E.2d 755 (1974). Delay of 58 days before giving notice was untimely without reasonable explanation for delay. Cortes v. Hartford Accident & Indem. Co., 14 Misc. 2d 1062, 180 N.Y.S.2d 102 (N.Y. App. Term 1958); see also Vanderbilt v. Indem. Ins. Co., 265 A.D. 495, 39 N.Y.S.2d 808 (2d Dep't 1943) (finding delay of 28 days in giving notice fatal). In absence of suitable explanation, 68-day delay in giving notice on behalf of injured person held unreasonable as matter of law. Allstate Ins. Co. v. Manger, 30 Misc. 2d 326, 213 N.Y.S.2d 901 (Sup. Ct. 1961). Under no-fault coverage, notice within 90 days of accident is sufficient. Subia v. Cosmopolitan Mut. Ins. Co., 80 Misc. 2d 1090, 364 N.Y.S.2d 118 (Sup. Ct. 1975). See also "NO-FAULT." Druggist's failure to notify insurer of claim known to him, that his improper compounding of prescription had caused death of infant, until action commenced seven months later, voided liability policy. Dworkin v. Aetna Cas. & Sur. Co., 194 Misc. 501, 87 N.Y.S.2d 77 (N.Y. City Ct. 1949). Failure to notify insurer of psychiatric "treatment of sexual relations" until service of suit 6 months after treatment ended was not timely notice. Hartogs v. Employers Mut. Liab. Ins. Co., 89 Misc. 2d 468, 391 N.Y.S.2d 962 (Sup. Ct. 1977); Roy v. Hartogs, 85 Misc.

2d 891, 381 N.Y.S.2d 587 (N.Y. App. Term 1976) (containing underlying liability action). Prejudice. Where insured failed to timely comply with notice provision of the policy which is, in effect, a condition precedent to coverage, the insurer is relieved of liability even without any proof of resulting prejudice from the late notice. Hovdestad v. Interboro Mut. Indem. Ins. Co., 135 A.D.2d 783, 522 N.Y.S.2d 895 (2d Dep't 1987); McGovern-Barbash Associates, LLC v. Everest Nat. Ins. Co., 79 A.D.3d 981, 914 N.Y.S.2d 218 (2d Dep't 2010). Punitive Damages. New York public policy precludes indemnification for a punitive damage award because such indemnification would undermine the punitive and deterrent purpose for which such an award is imposed. Home Ins. Co. v. American Home Products Corp., 75 N.Y.2d 196, 550 N.E.2d 930 (1990); Soto v. State Farm Ins. Co., 83 N.Y.2d 718, 613 N.Y.S.2d 352 (1994). Reformation. Injured third party may sue to reform liability policy of person causing injury to state period of coverage correctly. Tuzinska v. Ocean Accident & Guarantee Corp., 241 A.D. 598, 272 N.Y.S. 593 (4th Dep't 1934). Reimbursement. There are conflicting decisions on an insurer's right of reimbursement for moneys paid to injured third party where insured violated policy restrictions in auto liability context. Held entitled, Standard Accident Ins. Co. v. Solomon, 195 Misc. 48, 88 N.Y.S.2d 667 (Sup. Ct. 1949). Held not entitled, Travelers Ins. Co. v. Russo, 155 Misc. 589, 280 N.Y.S. 99 (N.Y. App. Term 1935). Workers Compensation. Generally injured employee cannot sue employer but defendant can implead employer as a third party defendant. Most general liability policies exclude coverage as to direct or indirect suits by plaintiff employees against employer, as a third party defendant. However, employer's workers compensation policy usually covers the employer, as a third party defendant. Pursuant to 1996 amendment to WCL § 11, on a proactive and not retroactive basis, an employer may only be held liable for contribution or indemnification if the employee has sustained a grave injury. Majewski v. Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 696 N.E.2d 978, 673 N.Y.S.2d 966 (1998); Dudek v. Metropolitan Transp. Authority of State of New York, 24 A.D.3d 21, 801 N.Y.S.2d 50 (2d Dep't 2005). LIMITATION OF TIME FOR COMMENCEMENT OF ACTION Arbitration. The same statute of limitations asserted to bar claim in court may be asserted in arbitration.

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CPLR §7502(b). However, under § 7501 a claim may be arbitrable even though it could not have been asserted in a court. The arbitrator also has discretion in applying time limitation bar to claim in arbitration. § 7502(b); §7503; see also 212 Investment Corp. v. Kaplan, 2005 WL 502852 (New York County Feb. 9, 2005). One Year. Within one year to commence suit for assault; battery; libel; slander; for violation of right of privacy; malicious prosecution; false imprisonment; intentional infliction of emotional distress; and an arbitration award. CPLR §215. Two Years. Within two years to commence suit for wrongful death action. E.P.T.L. §5-4.1. Where surviving child of decedent is infant, but other next-of-kin could qualify as administrator, two years applied. See Ratka v. St. Francis Hosp., 44 N.Y.2d 604, 378 N.E.2d 1027 (1978), overruled on other grounds by Burke v. Crosson, 85 N.Y.2d 10, 647 N.E.2d 736 (1995); cf. Hernandez v. New York City Health & Hospitals Corp., 78 N.Y.2d 687, 585 N.E.2d 822, 578 N.Y.S.2d 510 (1991); see also E.P.T.L. §5-4.1, et seq. Infancy of decedent held not to bar running of two year statute. Mossip v. F.H. Clement & Co., 256 A.D. 469, 10 N.Y.S.2d 592 (4th Dep't 1939), aff'd, 283 N.Y. 554, 27 N.E.2d 279 (1940); see also Heslin v. County of Greene, 12 N.Y.3d 67, 923 N.E.2d 1111, 896 N.Y.S.2d 723 (2010) (tolling does not apply to personal injury actions on behalf of decedent). If decedent fails to commence timely personal injury claim and the limitations period has run, any action for wrongful death stemming therefrom is barred. See Greene v. Abott Laboratories, 148 A.D.2d 403, 539 N.Y.S.2d 351 (1st Dep't 1989); Phelps v. Greco, 177 A.D.2d 559, 576 N.Y.S.2d 158 (2d Dep't 1993). Two Years and 6 Months. Within two years and six months to commence medical, dental or podiatric malpractice suit from act, omission or failure complained of, or last treatment where there is continuous treatment for same illness, injury or condition which gave rise to said act, omission or failure. Claim against physician governed by 2 ½ year malpractice period even if sounds in negligence. See Bazakos v. Lewis, 12 A.D.3d 1231, 911 N.E.2d 847 (2009). Continuous Treatment. See Romanello v. Jason, 303 A.D.2d 670, 756 N.Y.S.2d 657 (2d Dept. 2003); Juba v. Bachman, 255 A.D.2d 492, 680 N.Y.S.2d 626 (2d Dept. 1998); Wehle v. Giovanniello, 137 A.D.2d 680, 524 N.Y.S.2d 772 (2d Dep't 1988); Delaney v. Muscillo, 138 A.D.2d 258, 525 N.Y.S.2d 221 (1st Dep't 1988), appeal dismissed, 73 N.Y.2d 852, 534 N.E.2d 336 (1988); see also Gomez v. Katz, 874 N.Y.S.2d 161 (2d Dept. 2009) (discussing when continuous treatment may cease because of appointment with another doctor). Oviedo v. Weinstein, 2011 WL 4193304 (New York

County Aug. 24, 2011) (trial order); cf. Schwelnus v. Urological Assoc. of L.I., P.C., 94 A.D.3d 971, ___ N.Y.S.2d ___, 2012 WL 1320070 (2d Dep't 2012). Continuous treatment toll does not extend to derivative claims by spouse, three-year limitation applies. See Chambers v. Mirkinson, 890 N.Y.S.2d 99 (2d Dept. 2009); see also CPLR §214. Shall not include examination at patients request for sole purpose of determining state of patient's condition. Foreign Object. Where suit is based upon discovery of foreign object in body of patient, action must be commenced within one year of date of discovery or of date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. For this statute "foreign object" shall not include chemical compound, fixation device or prosthetic device. CPLR §214-a (Effective July 1, 1975). Infants. In medical malpractice, infant has maximum of 10 years. CPLR §208. 3 years. Within three years to commence suit for personal injury; property damage; and malpractice, other than medical malpractice whether or not action is for contract or tort (accountants, lawyers, architects). CPLR §214; see also Gray v. City of New York, 2012 WL 947802 (E.D.N.Y. Mar. 20, 2012); Allmen v. Fox Rothschild LLP, 2012 N.Y. Slip Op. 50220(U) (New York County Jan. 31, 2012); Willamson v. PricewaterhouseCoopers LLP, 9 N.Y.3d 1, 872 N.E.2d 842 (2007) (discussing doctrine of continuous representation for tolling purposes); Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 644 N.E.2d 1009 (1994). 4 Years. Within four years to commence suit for breach of warranty runs from date of sale. See Martin v. Julius Dierck Equip. Co., 43 N.Y.2d 583, 374 N.E.2d 97 (1978); McCarthy v. Bristol Labs., 61 A.D.2d 196, 401 N.Y.S.2d 509 (2d Dep't 1978). As to manufacturer's warranties, time runs from sale by manufacturer. See Heller v. U.S. Suzuki Motor Corp., 64 N.Y.2d 407, 477 N.E.2d 434 (1985); Schrader v. Sunnyside Corp., 297 A.D.2d 369, 747 N.Y.S.2d 26 (2d Dept. 2002); Lindsay v. Toyota Motor Sales, U.S.A., Inc., 816 N.Y.S.2d 697 (Bronx County 2006) (noting breach of express or implied warranty limitation period is four years, measured from tender of delivery). Where warranty extends to future performance, four year limitation period begins when breach is or should have been discovered. See U.C.C. §2-725; see also Weiss v. Herman, 597 N.Y.S.2d 52 (1st Dept. 1993). As to contract for sales four year statute of limitations may be reduced to one year by original agreement but may not be extended. See U.C.C. §2-725.

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6 Years. Within six years to commence a suit for breach of contract, fraud, action on a sealed instrument, bond or note or an action for which no limitation is proscribed at law. CPLR §213. Indemnity. Action for indemnity does not accrue at time of tort, but from time of payment of judgment. See Musco v. Conte, 22 A.D.2d 121, 254 N.Y.S.2d 589 (2d Dep't 1964); Satta v. City of N.Y., 272 A.D. 782, 69 N.Y.S.2d 653 (2d Dep't 1947). Indemnity may be sought in separate suit subsequent to judgment. See McDermott v. City of N.Y., 50 N.Y.2d 211, 406 N.E.2d 460 (1980); City of Rochester v. Montgomery, 72 N.Y. 65 (1878). However, as practical matter, indemnity party is impleaded in most suits as third party defendant. See "IMPLEADER." Injections/Implants. In drug injection cases, cause of action accrues at date of discovery of the injury or from the date when through the exercise of reasonable diligence such injury should have been discovered by plaintiff, whichever is earlier. See CPLR §214-c (2)*. See also In re N.Y. County DES Litig., 89 N.Y.2d 506, 678 N.E.2d 474 (1997). Injury occurs when compound is injected or introduced, date of exposure, not when resulting physical injury manifests itself. See CPLR §214-c et seq.; Aranoff v. Winthrop Labs., 102 A.D.2d 736, 476 N.Y.S.2d 571 (1st Dep't 1984), abrogated in part by Caronia v. Philip Morris USA, Inc., 2010 U.S. Dist. Lexis 12168 (E.D.N.Y. 2010). For implanted device, statute of limitations runs from date of injury resulting from malfunction. See Blanco v. Am. Tele. & Telegraph Co., 90 N.Y.2d 757, 666 N.Y.S.2d 536 (1997); Martin v. Edwards Labs., 60 N.Y.2d 417, 457 N.E.2d 1150 (1983); Matter of N.Y. County DES Litig., 89 N.Y.2d at 513, 678 N.E.2d at 478; see also CPLR §214-c(2). Multiple causes of action. Wrongful death and personal injury claims have different statutes of limitation, even when consolidated into same action. See Singleton v. City of Newburgh, 1 F. Supp. 2d 306 (S.D.N.Y. 1998). Products Liability. Court of Appeals held that on suits of strict products liability, cause sounds in tort rather than in contract and statute of limitations starts to run from time of injury. Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d 395, 335 N.E.2d 275 (1975) (action accrued when plaintiff, remote user of product, was injured by product; court held three-year limitation period applied from date of injury), superseded by statute as stated in Calabria v. St. Regis Corp., 124 A.D.2d 514, 508 N.Y.S.2d 186 (1st Dep't 1986) (commenting on four years from sale warranty limitation under U.C.C.). Relation-back doctrine. Allows claim to be brought even though limitation period has expired. Buran v. Coupal, 87 N.Y.2d 173, 661 N.E.2d 978, 638 N.Y.S.2d

405 (1995); see also Murphy v. Kirkland, 88 A.D.3d 267, 928 N.Y.S.2d 333 (2d Dep't 2011). This may extend limitations period in certain instances. Toxic Exposure Bill. Effective July 30, 1986. CPLR §214-c* which provides in subdivision (2) that three-year period for action to recover damages for personal injury or injury to property caused by latent effects of exposure to any substance... toxic shall be computed from date of discovery of injury by plaintiff or from date when through exercise of reasonable diligence such injury should have been discovered... whichever is earlier. See generally CPLR §214-c et seq.* If plaintiff at discovery time is not aware of cause, his remaining chance depends on his discovering cause within five years afterwards. If he does discover cause within five years after discovering injury, he gets, as alternative measure, one year from discovery of cause. In this connection plaintiff must show that "technical, scientific or medical knowledge and information sufficient to ascertain cause of his injury had not been discovered, identified or determined" in time to inform him earlier. CPLR §214-c(4). Absent discovery of cause within five years after discovery of injury, CPLR §214-c does not help plaintiff and claim is barred. This new statute is very complex and comprehensive and entire Act should be read before making any decisions. CPLR §214-c(4) preempted by 42 U.S.C.S §9601 in Ruffing v. Union Carbide Corp., 193 Misc. 2d 350, 746 N.Y.S.2d 798 (Sup. Ct. 2002) - proposed legislation deferred to judiciary 1/30/09. For a discussion regarding the application of §214-c see Giordano v. Market Am., Inc., 15 N.Y.3d 590, 915 N.Y.S.2d 884 (2010) (discussing application of statute); Feinberg v. Colgate Palmolive Co., 34 Misc. 3d 1243(A), 2012 WL 954271 (New York County 2012); Germantown Central School District. v. Clark, Clark, Millis & Gilson, AIA, 743 N.Y.S.2d 599 (3d Dept. 2002) (discussing what constitutes a latent effect); Krogmann v. Glens Falls City Schl. Dist., 661 N.Y.S.2d 82 (3d Dept. 1997). Statute of Limitations Defense. Third-party defendant cannot assert this defense solely because plaintiff's claim against third-party defendant is time barred. See Fitzpatrick v. City of New York, 185 Misc. 2d 79, 714 N.Y.S.2d 185 (New York County 2000) (holding that an indemnification cause of action may not revive direct claim barred by statute of limitations period). Cause of action of indemnity accrues when judgment obtained against defendant third-party plaintiff. Clements v. Rockefeller, 189 Misc. 889, 76 N.Y.S.2d 493 (Sup. Ct. 1947). Service over 6 years after injury and 5 years after primary suit started allowed in discretion of Court. Musco v. Conte, 34 A.D.2d 796, 313 N.Y.S.2d 328 (2d Dep't 1970); Masco, 22 A.D.2d at 126, 254 N.Y.S.2d at 595.

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Plaintiff may amend complaint to include third party defendant as primary defendant after statute of limitations has expired, if impleader was within time for statute of limitations. Timeliness and any prejudice are issues for court. Duffy v. Horton Mem'l Hosp., 66 N.Y.2d 473, 488 N.E.2d 820 (1985); New York Cent. Ins. Co. v. Berdar Equities Co., 33 Misc. 3d 1214(A), 941 N.Y.S.2d 539 (New York County 2012). CPLR §1008, which governs the Third-Party Defendants' rights and Answers, states that "a Third-Party Defendant may assert against the Plaintiff in his answer any defenses which the Third-Party Plaintiff has to the Plaintiff's claim." Third-Party defendants can even assert defenses, such as the statute of limitations defense, that the first-party defendants waived. See Marrone v. John A. Johnson & Sons, Inc., 283 A.D. 1114, 131 N.Y.S.2d 53 (2d Dep't 1954); Taylor v. Village of Ilion, 265 A.D.2d 841, 695 N.Y.S.2d 467 (4th Dep't 1999). Choice of Law. Accident in Pennsylvania; plaintiff and defendant residents of and action brought in New York. Held, N.Y. statute 2 years applied, not Pennsylvania 1 year. See Panzironi v. Heath, 197 Misc. 847, 95 N.Y.S.2d 660 (Sup. Ct. 1950). Time Limitations in Insurance Policies. Parties may agree to limitations period to govern an action. One year limitation period provided in policy would apply unless insurer waived the limitation or was estopped from claiming it. See Tindall v. Cont'l Ins. Co., 252 A.D. 47, 297 N.Y.S. 780 (4th Dep't 1937). Fidelity Insurance. Action commenced more than 15 months after filing proof of loss, held, barred by policy provision precluding suits after expiration of 15 months from discovery of fraudulent or dishonest act. Paul Kaskel & Sons, Inc. v. Fid. & Deposit Co., 277 A.D. 366, 100 N.Y.S.2d 273 (1st Dep't 1950), aff'd, 302 N.Y. 762, 98 N.E.2d 887 (1951). Fire Insurance. Standard policy provides no action sustainable unless all requirements of policy have been complied with, nor unless commenced within twelve months after fire. "After inception of loss" means after fire and not after filing proof of loss. See Margulies v. Quaker City Fire & Marine Ins. Co., 276 A.D. 695, 97 N.Y.S.2d 100 (1st Dep't 1950). Tolling Statute of Limitations. Absence from state does not stop running of statute of limitation where longarm jurisdiction may be obtained. See CPLR §207; see also N.Y. Veh. & Traf. Law § 253. LOAN RECEIPT See "SUBROGATION."

"Loan Receipt" is signed by an insured after insured receives full payment less the deductible from insurer after insured's property was damaged and the "loan receipt" grants insurer subrogation rights. This allowed insurer to commence a lawsuit to recover from the alleged tortfeasor the amount the insurer paid to the insured. Faraino v. Centennial Insurance Co., 103 A.D.2d 790, 477 N.Y.S.2d 664 (2d Dep't 1984). Confusion respecting "real party in interest" has been eliminated by amendment to CPLR §1004 permitting action to be brought in name of insured. Where insured executed loan receipt to insurer, insurer could maintain action in name of insured. Spectra, Inc. v. Chon, 880 N.Y.S.2d 612, 615, 62 A.D.3d 561, 563, (1st Dep t., 2009); Point Tennis Co. v. Irvin Indus. Corp., 63 A.D.2d 967, 405 N.Y.S.2d 506 (2d Dep't 1978). MEDICAL MALPRACTICE See also "LIMITATION OF TIME." Malpractice means failure to use or perform medical services of standard generally followed in profession practicing in that area. Kinsley v. Carravetta, 244 A.D. 213, 279 N.Y.S. 29 (1st Dep't 1935), aff'd, 273 N.Y. 559, 7 N.E.2d 691 (1937). Malpractice and failure to cure distinguished as one sounds in tort the other in contract. Robins v. Finestone, 308 N.Y. 543, 127 N.E.2d 330 (1955); see also Gotlin v. Lederman, 367 F. Supp. 2d 349 (E.D.N.Y. 2007) (discussing failure to cure). Aggravation of Injuries. Original tort-feasors may be liable for the aggravation of those injuries through the malpractice of hospital or doctor. Hill v. St. Clare's Hospital, 67 N.Y.2d 72499 N.Y.S.2d 904 (1986). Defendant liable for accident may recover from physician whose alleged malpractice aggravated injuries. Clark v. Halstead, 193 Misc. 739, 85 N.Y.S.2d 349 (Sup. Ct. 1948), aff'd, 276 A.D. 17, 93 N.Y.S.2d 49 (3d Dep't 1949); Primes v. Ross, 123 N.Y.S.2d 702 (Sup. Ct. 1953); inclusive of recovering from hospital for negligence. Rezza v. Isaacson, 13 Misc. 2d 794, 178 N.Y.S.2d 481 (Sup. Ct. 1958). See "CONTRIBUTION." Damages. Collateral sources of plaintiff reduce damages in medical malpractice actions. CPLR §4545. Evidence that plaintiff recovered special damages from insurance, Workers' Compensation, Social Security, etc. is admissible. Damage Payments. Duration of payments is for jury to decide, except future pain and suffering, period is limited not to exceed 8 years. See CPLR §5031. Four percent interest shall be added to prior year's sum to determine next year's amount. Id. As to periodic payments for future damages, terminate at death of plaintiff. However, payments for loss of future earnings continue to

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dependents. Law allows "equitable adjustment of periodic payments." Id. Court can assess reasonable attorney fees, not to exceed $10,000 for continuing action "found... to be frivolous by the court." CPLR §8303-a (a). There is also reduced formula for plaintiff contingency fees; full discovery of expert witnesses; special items for jury awards and expedited time for cases to come to trial. CPLR §4111 allows for itemized verdicts. CPLR §§ 5031-5039 requires periodic payment of judgments. Collateral sources allowed to reduce verdict. CPLR §4545(c). Plaintiff attorney fee maximum 30% of first $250,000 and next $250,000, 25% etc. Chapters 294 and 760 of the Laws of 1985. Infants ­ Prenatal. There is no wrongful death claim on behalf of stillborn. Endresz v. Friedberg, 24 N.Y.2d 478, 248 N.E.2d 901, 301 N.Y.S.2d 65 (1969) (Some disagreement in other states. Recent case where decision followed is Kaniecki v. Yost, 166 Misc. 2d 408, 631 N.Y.S.2d 500 (Sup. Ct. 1995)). Viable fetus would have claim were he injured in utero but born alive. Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691 (1951). Infants ­ Stillborn. Even in the absence of an independent injury, medical malpractice resulting in miscarriage or stillbirth should be construed as a violation of the duty of care to the expectant mother entitling her to damages for emotional distress. Broadnax v. Gonzales, 2 N.Y.3d 148, 809 N.E.2d 645, 777 N.Y.S.2d 146 (2004), limitation of holding, Sheppard-Mobley v. King, 4 N.Y.3d 627, 830 N.E.2d 301, 797 N.Y.S.2d 403 (2005). See lower court attempt to reconcile as physical injury. Johnson v. Verrilli, 134 Misc. 2d 582, 511 N.Y.S.2d 1008 (Sup. Ct. 1987), aff'd, 139 A.D.2d 497, 526 N.Y.S.2d 600 (2d Dep't 1988). Informed Consent Suits. Limited right of recovery Accruing after 7/1/75 - Public Health Law § 2805-d and CPLR §4401 -a. Public Health Law § 2805-d defines, limits and gives four defenses. CPLR §4401-a requires plaintiff to produce expert medical testimony in support of alleged qualitative insufficiency of consent where a plaintiff claims lack of informed consent. Mental Injury. Plaintiff allowed recovery for a phobic fear that she would get cancer as further consequence of burns she suffered from x-ray therapy due to defendant's malpractice. Ferrara v. Galluchio, 5 N.Y.2d 16, 152 N.E.2d 249 (1958), possible negative treatment, Ordway v. County of Suffolk, 154 Misc. 2d 269, 583 N.Y.S.2d 1014 (Sup. Ct. 1992), holding no duty on county to reveal to treating surgeon patient's HIV status under circumstances. For claim to succeed, plaintiff must prove manifestations of a psychosis. Giles v. West, 178 F.3d 1313 (Fed. Cir. 1999) (unpublished opinion).

Pleadings. CPLR §3012-a, requires "certificates of merit" accompanying the complaint in new malpractice actions, to effect that attorney has conferred with physician and that action has reasonable basis. CPLR §3045 allows for arbitration of damages in cases where defendant concedes liability. Effect of new statute is to require that awards for lost earnings reflect impact that income taxes would have had on such earnings. See CPLR §4546. Res Ipsa Loquitur Doctrine. Acosta v. City of New York, 67 Misc. 2d 756, 324 N.Y.S.2d 137 (N.Y. City Civ. Ct. 1971).When very nature of acts bespeak clear improper treatment then malpractice expert testimony is not required. Hammer v. Rosen, 7 N.Y.2d 376, 165 N.E.2d 756, (1960) (allegation of beating of patient by psychiatrist did not require expert testimony); see also Benson v. Dean, 232 N.Y. 52, 133 N.E. 125 (1921); Simon v. Freidrich, 163 Misc. 112, 296 N.Y.S. 367 (N.Y. City Ct. 1937). Respondeat Superior. Hospitals, Charitable Organizations. See Bing v. Thunig, 2 N.Y.2d 656, 143 N.E.2d 3 (1957), applying doctrines of respondent superior. Hospital is liable for negligence of nurse and its servants dependent upon nature of act or omission. Dillon v. Rockaway Beach Hosp., 284 N.Y. 176, 30 N.E.2d 373 (1940). For hospital to be vicariously liable for negligence of doctor, usually must show employment, not just affiliation. Raschel v. Rish, 69 N.Y.2d 694, 504 N.E.2d 389 (1986), distinguished by, Brown v. Sagamore Hotel, 184 A.D.2d 47, 590 N.Y.S.2d 934 (3d Dep't 1992). Hospital liable for any negligent acts of its own employees when evidence indicates concurrent control, see Matlick v. Long Is. Jewish Hosp., 25 A.D.2d 538, 267 N.Y.S.2d 631 (2d Dep't 1966); P.J.I. § 2:238. Informed Consent. Hospital not liable for lack of informed consent where risks of operation to be performed given by independently engaged surgeon, despite conflicting opinion as to desirability of operation. Fiorentino v. Wenger, 19 N.Y.2d 407, 227 N.E.2d 296 (1967). Negligent Hiring. Hospital will not be liable for staff doctor's negligence when no showing is made that hospital negligently hired staff doctor or had knowledge of their incompetence. O'Rourke v. Halcyon Rest, 281 A.D. 838, 118 N.Y.S.2d 693 (2d Dep't 1953), aff'd, 306 N.Y. 692, 117 N.E.2d 639 (1954). Patient Safety. Hospital owed duty to exercise "reasonable care and diligence, not only in treating but in safeguarding patient, measured by capacity of patient to provide for his own safety." Robertson v. Towns Hosp., 178 A.D. 285, 165 N.Y.S. 17 (2d Dep't 1917); see also Hendrickson v. Hodkin, 276 N.Y. 252, 11 N.E.2d 899

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(1937); Zophy v. State, 27 A.D.2d 414, 279 N.Y.S.2d 918 (4th Dep't 1967), aff'd, 22 N.Y.2d 921, 242 N.E.2d 86 (1968). Prima facie negligence against hospital where patient fell first day walking with crutches on theory that tortfeasor may be held liable for all damages that may have resulted from negligence. Butler v. Lutheran Med. Ctr., 36 A.D.2d 640, 319 N.Y.S.2d 291 (2d Dep't 1971). MOTOR VEHICLE See "AUTOMOBILES"; "NO-FAULT." NEGLIGENCE See also "AUTOMOBILE"; "DAMAGES"; "DEATH"; "MEDICAL MALPRACTICE"; "INFANTS"; "INDEMNITY"; and "LABOR LAW." See Law Digest Tables. General. Elements: 1) Defendant owed plaintiff a duty of care; 2) defendant failed to exercise that duty; and 3) plaintiff suffered injury as a proximate cause of the defendant's failure to exercise that duty. Atkins v. Glens Falls City School District, 53 N.Y.2d 325, 424 N.E.2d 531 (1981). Age. (See also "INFANTS") In automobile accident with insurance coverage, parent may sue unemancipated infant for negligence. Gelbman v. Gelbman, 23 N.Y.2d 434, 245 N.E.2d 192 (1969). No claim by child for negligent supervision. McCabe v. Dutchess County, 72 A.D.3d 145, 895 N.Y.S.2d 446 (2d Dep't 2010) (child cannot sue parent or foster parent for negligent supervision) (discussing instances where intrafamily immunity has been abolished). Alcohol. Sale, distribution or dispensation of alcoholic beverages to persons under 21 years is illegal. See NY Alcoholic Beverage Control Law § 65. See also "Dram Shop" in this section. Animals. Owner of animal with knowledge of vicious propensities has absolute or strict liability for injuries inflicted by animal. Strunk v. Zoltanski, 62 N.Y.2d 572, 468 N.E.2d 13 (1984); Arbegast v. Bd. of Educ., 65 N.Y.2d 161, 480 N.E.2d 365 (1985); Petrella v. O'Connor, 65 N.Y.2d 849, 482 N.E.2d 1207 (1985); see also, Collier v. Zambito, 1 N.Y.3d 444, 807 N.E.2d 254, (2004); Masimo v. Monfredo, 272 A.D.2d 306, 707 N.Y.S.2d 356 (2d Dept. 2000). Assumption of Risk. Defendant has duty to plead and prove. It can be complete bar to recovery. Maddox v. City of N.Y., 66 N.Y.2d 270, 487 N.E.2d 553 (1985). Assumption of risk includes risks that arise out of nature of sport and open and obvious risks associated with con-

struction of playing surface. See, McGrath v. Shenendehowa Central School Dist., 76 A.D.3d 755, 906 N.Y.S.2d 399 (3d Dept. 2010). No assumption of risk for reckless or intentional conduct or for concealed or unreasonably increased risks. See Morgan v. Stat of New York, 90 N.Y.2d 471, 605 N.E.2d 202 (1997). Doctrine also applies to horseback riding, where plaintiff assumes all inherent risks and all open and obvious conditions. See Kirkland v. Hall, 38 A.D.3d 497 , 832 N.Y.S.2d 232 (2d Dept. 2007); Joseph v. New York Racing Ass., Inc., 28 A.D.3d 105, 809 N.Y.S.2d 526 (2d Dept. 2006); Diderou v. Pinecrest, 34 A.D.2d 672, 310 N.Y.S.2d 572 (2d Dep't 1970). Assumption of risk included light pole in "fair" territory of softball field. See Pascucci v. Town of Oyster Bay, 186 A.D.2d 725, 588 N.Y.S.2d 663 (2d Dep't 1992) (light pole was not concealed and plaintiff consciously assumed risk by participating in game). Skier assumes risk when voluntarily participates in activity; skier has duty to follow the rules and ski within ability. See Lapinski v. Hunter Mountain Ski Bowl, Inc., 306 A.D.2d 320, 760 N.Y.S.2d 549 (2d Dept. 2003). Pleading culpable conduct defense includes contributory negligence and assumption of risk. Caiati v. Kimel, 154 A.D.2d 639, 546 N.Y.S.2d 877 (2d Dep't 1989). Culpable conduct of plaintiff, is akin to comparative negligence, does not bar recovery but diminishes it in proportion to plaintiff's contribution to injuries. See CPLR 1411. Two distinct doctrines of Assumption of Risk; "culpable conduct" and "primary assumption of risk." CPLR Article 14-A; Trupia v. Lake George Central School Dist., 14 N.Y.3d 392, 927 N.E.2d 547 (2010); Lomedico v. Cassillo, 868 N.Y.S.2d 835 (4th Dept. 2008) (primary assumption of the risk is a complete bar to recovery); Repka v. Arctic Cat, Inc., 798 N.Y.S.2d 629 (4th Dept. 2005) (applying primary assumption of risk to injuries resulting from participation in sports/products liability actions); Lamey v. Foley, 188 A.D.2d 157, 594 N.Y.S.2d 490 (4th Dep't 1993); see also Anderson v. Hedstrom Corp., 76 F. Supp. 2d 422 (S.D.N.Y. 1999). If plaintiff voluntarily assumes risk with full understating of harm, plaintiff may be comparatively negligent. See Beck v. Northside Medical, 46 A.D.3d 499, 846 N.Y.S.2d 662 (2007). Attractive Nuisance. With respect to private property, doctrine generally not applicable in New York. Morse v. Buffalo Tank Co., 280 N.Y. 110, 19 N.E.2d 981 (1939); see also Lefler v. Pa., 203 Misc. 887, 118 N.Y.S.2d 389 (Sup. Ct. 1952); Schwartz v. Armand Erpf Estate, 255 A.D.2d 35. 688 N.Y.S.2d 55 (1st Dept. 1999). Doctrine, when applied, is generally limited to dangerous attractions on highway. See Tierney v. N.Y. Dugan Bros., 288 N.Y. 16, 41 N.E.2d 161 (1942); Eason v. State, 280 A.D. 358, 113 N.Y.S.2d 479 (3d Dep't 1952). Even if child is trespasser, where owner of land

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leaves it open and accessible to children; and he knows children use it for play; and he leaves accessible to them highly volatile substance, prima facie case is made. See Patterson v. Proctor Paint & Varnish, 21 N.Y.2d 447, 235 N.E.2d 765 (1968); Lam v. Board of Ed., Central Islip Union Free School Dist. No. 13, 278 N.Y.S.2d 264 (2d Dept. 1965). Tripping over construction equipment at defendant's site. Londa v. Dougbay Estates, 40 N.Y.2d 1001, 359 N.E.2d 980 (1976). Infant trespassers drowned in defendant's swimming pool standard based on `reasonable care under the circumstances' taking into account foreseeability as factor of liability. See Naughton v. Sheehan, 56 A.D.2d 839, 392 N.Y.S.2d 75 (2d Dep't 1977). See also "Premises" infra. However, under New York law, mother and child were not entitled to recover on strict liability claim, against manufacturer disposable butane cigarette lighter, for defective design, in that lighter was unreasonably dangerous due to its bright color and size, which allegedly made such lighters attractive to small children, absent evidence that brightly colored lighters were in fact more attractive to children. Colon v. BIC USA, Inc., 199 F. Supp. 2d 5 (S.D.N.Y. 2001). Bicyclists. Must observe same rules as drivers. N.Y. Veh. & Traf. Law § 1231. Section 1231 of Vehicle & Traffic Law turn signal language not applicable to bicyclists because impossible for bicyclist to give a continuous turn signal for at least one hundred feet before turning. Secor v. Kohl, 67 A.D.2d 358, 415 N.Y.S.2d 434 (2d Dep't 1979). Blasting. Landowner was not strictly liable to contractor's employee and did not have a non-delegable duty, even though blasting was "inherently dangerous." Whitaker v. Norman, 75 N.Y.2d 779, 551 N.E.2d 579 (1989) (generally employer of contractor not vicariously liable for employee hired by contractor to do work inherently dangerous). See also Labor Law §§ 200, 201, 402, & 435 (McKinney 2007). Co-Defendant. Defendant can implead third-party defendants who are, or may be, wholly or partially negligent. Jury decides percentage of negligence for each defendant. See Dole v. Dow Chem., 30 N.Y.2d 143, 282 N.E.2d 288 (1972), superseded by statute Gen. Oblig. Law § 15-108 for other grounds. Defendants can crossclaim and ask indemnity and/or contribution against codefendant. CPLR §3019, (McKinney Supp. 2004). See also "IMPLEADER." Omnibus Workers Act (L. 1996, Ch. 635) limits impleading injured plaintiff's employer unless grave injuries, i.e., loss of arm, leg, death, etc. It is not retroactive. See Workers' Compensation Law § 11, (McKinney Supp. 2004); see also Majewski v. Broadalbin, 91 N.Y.2d 577, 696 N.E.2d 978 (1998).

Comparative Negligence. Plaintiff's damages diminished in proportion to amount of negligence attributable to plaintiff. CPLR §1411 (McKinney 2007); See also Trupia, 14 N.Y.3d at 395, 927 N.E.2d 547. Doctrine is applied to degrees of negligence of each defendant and jury decides percentage of fault for each defendant. See Dole, 30 N.Y.2d at 143, 282 N.E.2d at 288, superseded by statute Gen. Oblig. Law § 15-108 on other grounds. Burden to prove plaintiff's culpable conduct is on defendant. CPLR §1412; P.J.I. § 2:36. Conflict of Laws. Where both driver and guest are New York residents and guest was injured in car accident occurring in Ontario, Canada, Court did not apply usual rule that tort law of place of accident controlled, but rather guest was permitted to sue despite Ontario guest statute barring liability. See Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279 (1963) (applying the most significant contacts test for choice of law conflicts), cf., Roach v. McGuire & Bennett, 146 A.D.2d 89, 539 N.Y.S.2d 138 (3d Dep't 1989). Contractual Exemptions. Contracts exempting owners or lessors from liability for negligence - void and unenforceable. N.Y. Gen. Oblig. Law § 5-321. Also same for building service or maintenance. N.Y. Gen. Oblig. Law § 5-323. But see INDEMNITY. Also, contracts exempting gymnasiums, pools, places of public recreation or amusements void. Gen. Oblig. Law § 5326. Burglar alarm company contract shields liability only for ordinary negligence not gross negligence. See Adler v. Columbia Savings and Loan Ass., 811 N.Y.S.2d 737 (2d Dept. 2006); Federal Ins. Co. v. Automatic Burglar Alarm, 208 A.D.2d 495, 617 N.Y.S.2d 53 (2d Dep't 1994). Parties to a construction contract cannot be indemnified for their own negligence. See N.Y. Gen. Oblig. Law § 5-322.1. See also Auriemma v. Biltmore Theatre, LLC, 82 A.D.3d 1, 917 N.Y.S.2d 130 (1st Dep't 2011). Damages. See "DAMAGES." Dram Shop. Statute creates injured persons right against all who "caused or contributed to intoxication" or "illegal sale of intoxicating liquor" and such person has been injured by intoxicated person. See, Gen. Oblig. Law § 11-101. Requires showing of sale to "any visibly intoxicated person." Kelly v. Fleet Bank, 271 A.D.2d 654, 706 N.Y.S.2d 190 (2d Dep't 2000). Visible intoxication may be established by circumstantial evidence. See, Kish v. Farley, 24 A.D.3d 1198, 807 N.Y.S.2d 235 (4th Dept. 2005); Kelly v. Fleet Bank, 271 A.D.2d 654, 706 N.Y.S.2d 190 (2d Dept. 2000). Statute. Does not allow suit for injuries to intoxicated person, by reason of voluntary intoxication. See Marsico v. Southland Corp., 148 A.D.2d 503, 539

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N.Y.S.2d 378 (2d Dep't 1989); Dodge v. Victory Markets Inc., 199 A.D.2d 917, 606 N.Y.S.2d 345 (3d Dep't 1993); Oursler v. Brennan, 67 A.D.3d 36, 884 N.Y.S.2d 534 (4th Dept. 2009). However, vendor may seek contribution from intoxicated person who caused the injury. See, Zona v. Oatka Rest., 68 N.Y.2d 824, 499 N.E.2d 869 (1986); but see Coughlin v. Barker Avenue Ass., 202 A.D.2d 622, 609 N.Y.S.2d 646 (2d Dept. 1994). Rights of recovery under the Dram Shop Act discussed in Dunphy v. J&I Sports Enterprises, Inc., 297 A.D.2d 23, 748 N.Y.S.2d 595 (2d Dept. 2002). Must have causal connection between service of alcohol and injuries. See Dugan v. Olson, 74 A.D.2d 1131, 906 N.Y.S. 2D 277 (2d Dept. 2010). Discussion of statutes application. See, Bartkowiak v. St. Adalbert's R.C. Church, 40 A.D.2d 306, 340 N.Y.S.2d 137 (4th Dep't 1973) (drunk 15 year old guest killed another at church function which implicated dram shop act);Terrigino v. Zaleski, 144 Misc. 2d 474, 544 N.Y.S.2d 283 (N.Y. Sup. Ct. 1989) (subjects transferor to liability regardless exchange in value). Emergency Defense Doctrine. Applied in New York where defendant confronted with sudden and unexpected situation which defendant did not create. See, Caristo v. Sanzone, 96 N.Y.2d 172, 750 N.E.2d 36 (2001); Edwards v. New York City Transit Authority, 37 A.D.3d 157, 829 N.Y.S.2d 462 (4th Dept. 2007); Viera v. Lexington Leasing Co., 8 Misc. 3d 1018(A) (Queens County 2005); cf. Campo v. Neary, 860 N.Y.S.2d 703 (4th Dept. 2008). Where emergency is not created by defendant's own acts, error of judgment may not be equated with fault. Ward v. F.R.A., 265 N.Y. 303, 192 N.E. 585 (1934) (in face of sudden peril best judgment not required); Rowlands v. Parks, 2 N.Y.2d 64, 138 N.E.2d 217 (1956). See also "AUTOMOBILES." Foreseeability. Risk reasonably to be perceived defines duty to be obeyed, and risk imports relation. Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928); Havas v. Victory Paper Stock, 49 N.Y.2d 381, 402 N.E.2d 1136 (1980). Generally this issue is for jury without requiring expert testimony. See, Havas, supra. Infants. See also "AGE," Sui Juris. Children may be held negligent, but question of fact for jury. See Busby v. Levy, 101 N.Y.S.2d 946 (N.Y. Sup. Ct. 1951); see also Stone v. Dry Dock, 115 N.Y. 104, 21 N.E. 712 (1889); Gunsburger v. Kristeller, 189 A.D. 821, 179 N.Y.S. 506 (2d Dep't 1919). In determining whether act of infant defendant is negligent his age, intelligence and experience and circumstances under which act was committed must be taken into consideration. See Eagle v. Janoff, 12 A.D.2d 638, 208 N.Y.S.2d 579 (2d Dep't 1960), but see Williams v. Hayes, 143 N.Y. 442, 38 N.E. 449 (1894) (stating dicta to contrary). Infant defendant, age six, held liable for assault and battery. See Baldinger

v. Banks, 26 Misc. 2d 1086, 201 N.Y.S.2d 629 (N.Y. Sup. Ct. 1960); see also Masters v. Becker, 254 N.Y.S.2d 633 (2d Dept. 1964). Three-year-old child is conclusively presumed to be incapable of negligence. See, Verni v. Johnson, 295 N.Y. 436, 68 N.E.2d 431 (1946); see also Smith v. Kinsey, 50 A.D.3d 1456, 858 N.Y.S.2d 495 (4th Dept. 2008). Inferences. Negligence may not be based on inference, need positive proof of facts from which inference or conclusion may be drawn. See Ruppert v. Brooklyn Heights R. Co., 154 N.Y. 90, 47 N.E. 971 (1897); Leonard v. Ashley Welding, 11 A.D.2d 1073, 206 N.Y.S.2d 875 (2d Dep't 1960), aff'd, 10 N.Y.2d 993, 180 N.E.2d 259 (1961) (cannot base inference upon inference to prove circumstantial evidence). Investigation. Plaintiff entitled to inspection of his statement given to insurance company representative when alleged to have been obtained by coercion. See Bearor v. Kapple, 24 N.Y.S.2d 655 (N.Y. Sup. Ct. 1940) (statement taken close to date of accident). Coercion found when statement taken while plaintiff in poor physical condition or when statement induced by misrepresentations. See Johnson v. Valentino, 277 A.D. 1133, 101 N.Y.S.2d 622 (2d Dep't 1950); Meehan v. McCloy, 266 A.D. 706, 40 N.Y.S.2d 207 (3d Dep't 1943); but see Sack v. All-States, 268 A.D. 793, 49 N.Y.S.2d 148 (2d Dep't 1944). Impleader. Defendant's right to bring in other defendants who were negligent in any manner, active or passive, and jury should decide percentage of negligence of each defendant. See Dole v. Dow Chemical, 30 N.Y.2d 143, 282 N.E.2d 288 (1972), superseded by statute, Gen. Obl. Law § 15-108 (a tortfeasor who has obtained his own release from liability shall not be entitled to contribution from any other person). Plaintiff in enforcing judgment not limited to percentage of fault jury attributed to each defendant. Plaintiff has full right recovery against any one or more joint or concurrent tortfeasors found negligent. Kelly v. Long Is. Light. Co., 31 N.Y.2d 25, 286 N.E.2d 241 (1972). (See "IMPLEADER.") General rule, if defendant found 50% or less liability then such defendant liable only for his equitable share. Applies only to non-economic damages, i.e. pain and suffering, loss of consortium, etc. Many exceptions, i.e. not in motor vehicle cases. See CPLR §§ 1601-1602. Last Clear Chance. Doctrine is applied. Hernandez v. B.&Q., 284 N.Y. 535, 32 N.E.2d 542 (1940). See "AUTOMOBILES." Leases. Contracts exempting owners or lessors from liability for negligence - void and unenforceable. N.Y. Gen. Oblig. Law § 5-321. Also same for building service or maintenance. Gen. Oblig. Law § 5-323. Also,

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contracts exempting gymnasiums, pools, places of public recreation or amusements void. Gen. Oblig. Law § 5326. Burglar alarm company contract shields liability only for ordinary negligence not gross negligence. See Adler v. Columbia Savings and Loan Ass., 26 A.D.3d 349, 811 N.Y.S.2d 737 (2d Dept. 2006); Federal Ins. Co. v. Automatic Burglar Alarm, 208 A.D.2d 495, 617 N.Y.S.2d 53 (2d Dep't 1994). Lighting. Owner of building that is open to public is required to reasonably light exterior means of egress and ingress. See Gallagher v. St. Raymond's, 21 N.Y.2d 554, 236 N.E.2d 632 (1968); cf. Miller v. Consolidated Rail Corp., 41 A.D.3d 948, 837 N.Y.S.2d 783 (3d Dept. 2007) (no duty to provide emergency lighting); see also Peralta v. Henriquez, 100 N.Y.2d 139, 790 N.E.2d 1170 (2003). Municipal. When city official action involves expert judgment or exercise of discretion, and is not exclusively ministerial, a municipal defendant generally has no liability. See Tango v. Tulevech, 61 N.Y.2d 34, 459 N.E.2d 182 (1983); Haddock v. City of New York, 75 N.Y.2d 478, 553 N.E.2d 987 (1990); Rodriguez v. City of New York, 189 A.D.2d 166, 595 N.Y.S.2d 421 (1st Dep't 1993) (police officer firing at criminal in a crowd and hitting plaintiff, bystander, where there are specific police rules, is not within the "judgmental error rule"). Notice of Defect. Must establish actual or constructive notice of defect or dangerous condition for liability to be found. See Tkach v. Montefiore Hos. For Chronic Diseases, 289 N.Y. 387, 46 N.E.2d 333 (1943); Rodriguez v. E&P Assoc., 20 Misc. 3d 1129(A) (Bronx County 2008). For example, Plaintiff failed to show either actual or constructive notice of 1/8 to 1/16 inch raised crack in tennis court. Katcher v. Ideal Tennis, 65 A.D.2d 751, 409 N.Y.S.2d 756 (2d Dep't 1978). Proof of notice of foreign substance on floor of supermarket is essential. Cameron v. Bohack, 27 A.D.2d 362, 280 N.Y.S.2d 483 (2d Dep't 1967); Bender v. Dan's Supreme Supermarket, 71 A.D.2d 636, 418 N.Y.S.2d 476 (2d Dep't 1979). Jury could infer from photo taken one month after accident that condition was long existent. Taylor v. New York City Transit, 63 A.D.2d 630, 405 N.Y.S.2d 95 (1st Dep't 1978), aff'd, 48 N.Y.2d 903, 400 N.E.2d 1340 (1979). Landowner not responsible when tree branch falls and injures plaintiff on adjacent property unless he had notice of defective condition of his tree. Ivancic v. Olmstead, 66 N.Y.2d 349, 488 N.E.2d 72 (1985), cert. denied, 476 U.S. 1117 (1986). Trip due to one-inch irregularity, not actionable. Morales v. Riverbay, 226 A.D.2d 271, 641 N.Y.S.2d 276 (1st Dep't 1996). Out of Possession. Owner who completely parted with possession and control is not liable for building's defective condition. See Worth v. Latham, 59 N.Y.2d

231, 451 N.E.2d 193 (1983). Owner/landlord with a right to enter to inspect and repair is sufficient to charge owner with constructive notice of defect and liability for the defect. Guzman v. Haven Plaza, 69 N.Y.2d 559, 509 N.E.2d 51 (1987); Tkach v. Montefiore Hosp., 289 N.Y. 387, 46 N.E.2d 333 (1943); see also Bonifacio v. 910930 Southern Bould. LLC., 743 N.Y.S.2d 105 (1st Dept. 2002). Parents. A child has no cause of action against a parent for negligent supervision. See Holodook v. Spencer, 36 N.Y.2d 35, 324 N.E.2d 338 (1974). But breach of duty to excursive reasonable care, separate from family relationship, provides for cause of action. See Hoppe IV v. Hoppe III, 281 A.D.2d 585, 724 N.Y.S.2d 65 (2d Dept. 2001); Semmens v. Hopper, 128 A.D.2d 767, 513 N.Y.S.2d 472 (2d Dep't 1987) (leaving infant accessible to pool was proximate cause of infants injuries and created issue of fact). Premises. Application of single standard of reasonable care under circumstances whereby "foreseeability" shall be measure of liability. See Basso v. Miller, 40 N.Y.2d 233, 352 N.E.2d 868 (1976), disagreed with by, Wight v. State of New York, 93 Misc. 2d 560, 403 N.Y.S.2d 450 (N.Y. Ct. Cl. 1978); see also, Quinlan v. Cechini, 41 N.Y.2d 686, 363 N.E.2d 578 (1977) (where seventeen year old visiting friends home fell in small dark vestibule, plaintiff's expert testified "architecturally unsound," thus foreseeability and proximate cause for jury); Scurti v. City of New York, 40 N.Y.2d 433, 354 N.E.2d 794, 387 N.Y.S.2d 55 (1976), (where fourteen year old trespasser electrocuted created issues fact for jury) disagreed with by, Wight v. State of New York, 93 Misc. 2d 560, 403 N.Y.S.2d 450 (N.Y. Ct. Cl. 1978); Barker v. Parnossa, 39 N.Y.2d 926, 352 N.E.2d 880 (1976) (where infant trespasser is factor for jury to consider and duty owed is that of reasonable care for safety of all persons reasonably to be expected upon owner possessor's land); Farkas v. Cedarhurst Natural Food Shoppe, 41 N.Y.2d 1041, 364 N.E.2d 829 (1977). No prior accidents under same conditions within reasonable time prior to date of accident is admissible. See Wozniak v. 110 S. Main St. Land, 61 A.D.2d 848, 402 N.Y.S.2d 69 (3d Dep't 1978); Miller v. Food Fair, 63 A.D.2d 766, 404 N.Y.S.2d 740 (3d Dep't 1978); Fleischer v. Melmarkets, 174 A.D.2d 647, 571 N.Y.S.2d 509 (2d Dep't 1991) (where display falls on customer and no res ipsa loquitur, duty of reasonably safe condition); see also Jacqueline S. v. NYC Housing, 81 N.Y.2d 288, 614 N.E.2d 723 (1993); World Trade Center Bombing Lit., 3 Misc. 3d 440, 776 N.Y.S.2d 713 (New York County 2004). Police Injuries. Santangelo Rule (also known as "Firemen's Rule") bars police from recovering for inju---- For Current Listings access www.ambest.com/legal----

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ries as a result of "special risks" inherent in duties, including fellow officer negligence in rushing to scene of emergency. See Desmond v. City of New York, 88 N.Y.2d 455, 669 N.E.2d 472 (1996), reargument denied, 89 N.Y.2d 861, 675 N.E.2d 1236 (1996); see also N.Y. Gen. Mun. Law §§ 205-a & 205-e (McKinney 2007); Galapo v. City of New York, 95 N.Y.2d 568, 744 N.E.2d 685, 721 N.Y.S.2d 857 (2000). Proximate Cause. What constitutes legal or proximate cause is always dependent upon facts of particular case. See O'Neill v. Port Jervis, 253 N.Y. 423, 171 N.E. 694 (1930). If act is in clear sequence with result and it reasonably could have been anticipated that consequences complained of would follow, alleged wrongful act is proximate cause. See Cole v. Vincent, 229 A.D. 520, 242 N.Y.S. 644 (4th Dep't 1930). No prior accidents for reasonable time admissible where plaintiff fell in hotel parking lot. Wozniak v. 110 South Main St. Land & Dev., 61 A.D.2d 848, 402 N.Y.S.2d 69 (3d Dep't 1978); see also Zeigler v. Wolfert's Roost Country Club, 291 A.D.2d 609, 737 N.Y.S.2d 676 (3d Dep't 2002) (absence of prior accident admissible if court charges such evidence is not conclusive); Miller v. Food Fair Stores, 63 A.D.2d 766, 404 N.Y.S.2d 740 (3d Dep't 1978). Proximate cause is elusive concept that cannot be precisely defined; question is whether the intervening act is normal or foreseeable consequence of the negligence. See Thomas v. U.S. Soccer Fed. Inc., 236 A.D.2d 600, 653 N.Y.S.2d 958 (2d Dep't 1997). Safety. Landlord aware of assaults in building has duty to maintain locks. Sherman v. Concourse Realty, 47 A.D.2d 134, 365 N.Y.S.2d 239 (2d Dep't 1975) (landlord's negligence considered proximate cause); Garzilli v. Howard Johnson's, 419 F. Supp. 1210 (E.D.N.Y. 1976) (verdict $2.5 million); see also Willaims v. Utica College of Syracuse University, 453 F.3d 112 (C.A. 2006); Montag v. YMCA, 105 A.D.2d 1131, 482 N.Y.S.2d 613 (4th Dep't 1984) (assault in YWCA locker room while attendant absent, owner has duty to maintain reasonably safe condition under the circumstances). Landlord's knowledge of crimes in the immediate vicinity raises issue of fact to defeat summary judgment. See, Jacqueline S. v. City of New York, 81 N.Y.2d 288, 614 N.E.2d 723 (1993). Tenant who sustains personal injuries must show landlord's inadequate security measures were proximate cause of injury, and that assailant was an intruder to the building. See Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 706 N.E.2d 1163 (1998) (plaintiff's case does not fail for lack of identification of intruder); see also Venetal v. City of New York, 21 A.D.3d 1087, 803 N.Y.S.2d 609 (2d Dept. 2005). Snow. For liability to attach, snow shoveling must make existing mass of snow more dangerous than previ-

ously. See Mandel v. City of New York, 44 N.Y.2d 1004, 380 N.E.2d 173 (1978); John v. City of New York, 77 A.D.3d 792, 909 N.Y.S.2d 142 (2d Dept. 2010) (liable if snow removal efforts made condition more hazardous). Storm in progress rule precludes liability on municipality for conditions during storm or reasonable time thereafter. See Mazzella v. City of New York, 72 A.D.3d 755, 899 N.Y.S.2d 291 (2d Dept. 2010). Reasonable opportunity to remove must be present. See, Roark v. Hunting, 24 N.Y.2d 470, 248 N.E.2d 896 (1969). Failure to remedy condition by sand or salt over dangerous area may give rise to liability. Cohen v. New York City Hous. Auth., 44 A.D.2d 817, 355 N.Y.S.2d 771 (1st Dep't 1974) (question for jury); see also Goslin v. Nine Platt, 39 A.D.2d 986, 333 N.Y.S.2d 352 (3d Dep't 1972), appeal denied, 31 N.Y.2d 643, 290 N.E.2d 827 (1972) (creation of dangerous condition is question for jury). Snowmobile hit gate on private road owned by defendant and defendant had cleared path, complaint dismissed. See Rock v. Concrete Materials, 46 A.D.2d 300, 362 N.Y.S.2d 258 (3d Dep't 1974), appeal dismissed, 36 N.Y.2d 772, 329 N.E.2d 672 (1975) (no duty to warn found); see also Gen. Oblig. Law § 9-103 (McKinney 2007). Trespass. Doctrine is not bar to recovery by children injured by dangerous condition on land, and owner knows children use it for play, and he leaves it open and accessible with highly volatile substance. See Patterson v. Proctor Paint, 21 N.Y.2d 447, 235 N.E.2d 765, (1968). Regardless of status of infant on property, since fire escape was potentially lethal trap overhanging sidewalk where children frequently played issue of "foreseeability" is for jury. See Martinez v. Kaufman, 34 N.Y.2d 819, 316 N.E.2d 336 (1974); see also Mayer v. Temple Properties., 307 N.Y. 559, 122 N.E.2d 909 (1954); Beauchamp v. New York City Hous. Auth., 12 N.Y.2d 400, 190 N.E.2d 412 (1963). Settlement. Duty of defendant to pay plaintiff within 21 days of receipt of proper closing papers, or plaintiff enter judgment, without notice, including costs, disbursements and interest. CPLR §5003. Unavoidable Accident. When not the result of, in any degree, directly or indirectly, lack of care or skill as law holds every man bound to exercise. See Carvel v. Underwood, 51 Misc. 2d 863, 273 N.Y.S.2d 918 (N.Y. Sup. Ct. 1966) (infant darted into street.); Dorn v. Butts, 46 Misc. 2d 953, 260 N.Y.S.2d 468 (N.Y. App. Term 1965) (relating to a mechanical defect in vehicle). Accident occurs absent negligence. See id. Voluntary Assumption. When assume duty to care for individual required to perform that duty with reasonable care. See Florence v. Goldberg, 44 N.Y.2d 189, 375 N.E.2d 763 (1978). Assumption of duty by municipality.

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See Pelaez v. Seide, 2 N.Y.3d 186, 810 N.E.2d 393, 778 N.Y.S.2d 111 (2004); Signature Health Center v. State, 28 Misc. 3d 543, 902 N.Y.S.2d 893 (Ct. Cl. 2010). Also obligation not to abandon. See id.; see also N.Y.P.J.I. 2:24. NO-FAULT General. Comprehensive Automobile Insurance Reparations Act. Ins. Law § 5102 (d). restricts the right of a "covered person" to sue for personal injury except in the case of a "serious injury" which is defined in Ins. Law § 5102 (d) as: death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system, or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less that ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment. No fault benefits are provided for economic loss arising out of the use or operation of a motor vehicle. See N.Y. Ins. Law §5103. A motor vehicle is defined in N.Y. Ins. Law § 5102 to include all vehicles driven upon a public highway except motorcycles. The No-fault statute covers injuries to the named insured, members of his household, any owner, operator or occupant of the insured's vehicle, any pedestrian injured through the use or operation of the insured's vehicle and any other person entitled to "first party benefits." Pursuant to N.Y. Ins. Law §5102 these people are considered "covered persons." There are specific exclusions from coverage of the no-fault statute. An insurer may exclude from "first party benefits" a person who is injured: (a) by his own intentional act; (b) while operating a motor vehicle in an intoxicated condition or while impaired by use of drugs; (c) while committing an act which would constitute an act which would constitute a felony, or seeking to avoid lawful apprehension or arrest by a law enforcement officer; (d) while operating a motor vehicle in a face or speed test; (e) while operating or occupying a motor vehicle known to be stolen. Serious Injury. Threshold issue of whether plaintiff sustained serious injury is usually a fact question for jury. Sanders v. Rickard, 51 A.D.2d 260, 380 N.Y.S.2d 811 (3d Dep't 1976); Hernandez v. Levine, 90 A.D.2d 481, 454 N.Y.S.2d 473 (2d Dep't 1982); Licari v. Elliott,

57 N.Y.2d 230. 441 N.E.2d 1088 (1982). However, defendant's motion for summary judgment is proper to determine whether plaintiff can prove serious injury under no-fault law. Baytsayeva v. Shapiro, ___ F. Supp. 2d ___, 2012 WL 171304 (E.D.N.Y. 2012) (holding that whether claimed injury is serious is a threshold matter of law for court to decide); Zoldas v. Louise Cab, 108 A.D.2d 378, 489 N.Y.S.2d 468 (1st Dep't 1985); Locatelli v. Blanchard, 108 A.D.2d 1032, 485 N.Y.S.2d 603 (3d Dep't 1985); Cangemi v. Cole, 107 A.D.2d 1027, 486 N.Y.S.2d 511 (4th Dep't 1985). Vague, self-serving, and conclusive assertions by plaintiff are insufficient to establish "serious injury." Zelenak v. Clark, 170 A.D.2d 677, 567 N.Y.S.2d 92 (2d Dep't 1991); Lopez v. Senatore, 65 N.Y.2d 1017, 484 N.E.2d 130 (1985); Gaddy v. Eyler, 79 N.Y.2d 955, 591 N.E.2d 1176(1992). Similarly, conclusive assertions by chiropractor or orthopedic surgeon may also be held to be insufficient. Delfino v. Davey, 159 A.D.2d 604, 552 N.Y.S.2d 658 (2d Dep't 1990). No Fault Law requires motorists to carry first-party economic loss coverage with aggregate limit of $50,000 per person to cover "basic economic loss.". Medical benefits are paid without time limit if, within one year of accident, it is ascertainable that further expenses may be incurred. Wage loss coverage is limited to 80 per cent of actual loss up to $2,000 per month for maximum of three years. Substitute service benefits are limited to $25 per day for up to one year. In addition to $50,000 economic loss package, estates of accident victims who die are paid $2,000 by insurer. If injured person is entitled to receive his salary from his employer while unable to work because of his injuries, he will not receive loss-of-income benefits from his auto insurer except in cases where employee's future benefits for illness or injury would be reduced. See e.g., Palmer v. Allstate Insurance Co., 101 A.D.2d 127, 475 N.Y.S.2d 436 (2d Dep't 1984). Amounts recovered or recoverable under Federal or State laws providing social security disability or worker's compensation benefits or Medicare benefits (other than lifetime reserve days and provided that the Medicare benefits do not result in a reduction of such person's Medicare benefits for subsequent illness or injury) are deductible from first party benefits paid to reimburse persons for their basic economic loss. Ins. Law § 5102 (McKinney 2011). Employee is entitled to first-party No-Fault benefits when injured in auto during employment, workmen's compensation benefits are not bar. Ryder Truck v. Maiorano, 44 N.Y.2d 364, 376 N.E.2d 1311, 405 N.Y.S.2d 666 (1978). Interplay of two coverages, N.Y. Workers' Comp. Law § 29 (1)(a) (McKinney 2007).

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Doctors, hospitals, and other providers of health services cannot charge more for treatment of traffic accident victims than amount permitted in schedule of charges established by chairman of worker's compensation board for industrial accidents. See, 11 NYCRR 68 (Charges for Professional Health Services, Regulation 83). Property damage is left under tort system, but member carriers use arbitration for subrogation up to alleged amount of damages. When non-resident motorists are involved in accidents occurring within this state, their policies must provide the statutory minimum coverage for first party benefits and third party liability. See e.g., In Re: Transamerica Ins. Group, 107 A.D.2d 591, 483 N.Y.S.2d 705 (1st Dep't 1985). Notice of claim for no-fault benefits given to insurance carrier within 90 days of accident is, as matter of law, given "as soon as reasonably practicable"; since fault is not involved, no necessity for immediate investigation of accident; carrier will not be prejudiced by reason of delay of 90 days. Subia v. Cosmopolitan Mut., 80 Misc. 2d 1090, 364 N.Y.S.2d 118 (N.Y. Sup. Ct. 1975). Objective of N.Y. Ins. Law § 67 was to remove from courts and place before arbitrators threshold issues (relating to a cancellation of coverage). Allcity Ins. Co. v. Robinson, 87 Misc. 2d 634, 386 N.Y.S.2d 515 (N.Y. Sup. Ct. 1976). Courts starting some control. If award has no rational basis, it will be modified. Hartford v. Mendez, 93 Misc. 2d 957, 404 N.Y.S.2d 519 (N.Y. Sup. Ct. 1978). Motion to stay arbitration must be made timely, but only when 20 day notice and proper service is part of demand for arbitration. Government Emp. Ins. Co. v. Kozlowski, 62 A.D.2d 1056, 404 N.Y.S.2d 150 (2d Dep't 1978). Arbitration award may be set aside by Court, if award has no rational basis. Garcia v. Federal Ins., 46 N.Y.2d 1040, 389 N.E.2d 1066 (1979); Government Emp. Ins. Co. v. Sparrow, 66 A.D.2d 782, 410 N.Y.S.2d 657 (2d Dep't 1978). Motion to stay arbitration must be made timely, but only when 20 day notice and proper service is part of demand for arbitration. Government Emp. Ins. Co. v. Kozlowski, 62 A.D.2d 1056, 404 N.Y.S.2d 150 (2d Dep't 1978). Effective December 1, 1977, parties can appeal for preview by master arbitrator. See Ins, Law § 5106 (c). Pedestrian. Driver of disabled car hit in highway while warning oncoming traffic is entitled to no-fault first party benefits from vehicle that impacted pedestrian. Colon v. Aetna, 64 A.D.2d 498, 410 N.Y.S.2d 634

(2d Dep't 1978), aff'd, 48 N.Y.2d 570, 399 N.E.2d 938 (1980). First automobile insurer to whom claim is presented shall be responsible for payment. Mere notice of accident does not automatically constitute claim as the factual allegations contained therein must indicate the existence of a cause of action. Melito v. Interboro-Mutual, 73 A.D.2d 819, 423 N.Y.S.2d 742 (4th Dep't 1979). An insurer may deduct worker's compensation coverage upon a mere showing of availability; it is not contingent upon actual receipt by the applicant. Carlo Service Corp. v. Rachmani, 64 A.D.2d 579, 407 N.Y.S.2d 700 (1st Dep't 1978). PRIVILEGED COMMUNICATIONS Communications are privileged under New York law: self-incrimination, In Re Anonymous, 121 A.D.2d 417, 504 N.Y.S.2d 6 (2d Dep't 1986); spousal, CPLR §4502(b), see also People v. Harrell, 87 A.D.2d 21, 450 N.Y.S.2d 501 (2d Dep't 1982) (recognizing parent-child privilege); attorney-client, CPLR §4503, Priest v. Hennessy, 51 N.Y.2d 62, 409 N.E.2d 983 (1980); physician, CPLR §4504, Dillenbeck. v. Hess, 73 N.Y.2d 278, 536 N.E.2d 1126(1989); clergy, CPLR 4505, Keenan v. Gigante, 47 N.Y.2d 160, 390 N.E.2d 1151 (1979); psychologist, CPLR 4507, Yaron v. Yaron, 83 Misc. 2d 276, 372 N.Y.S.2d 518 (N.Y. Sup. Ct., New York County, 1975); certified social worker, CPLR 4508, Zimmer v. Cathedral Sch., 204 A.D.2d 538, 611 N.Y.S.2d 911 (2d Dep't 1994); and trade secrets, Drake v. Herrman, 261 N.Y. 414, 185 N.E. 685 (1933). Plaintiff waives physician-patient privilege when medical condition is placed at issue. Arons v. Jutkowitz, 9 N.Y.3d 393, 880 N.E.2d 831 (2007). Materials and/or communications made in preparation for litigation or made to liability insurer with respect to claim are privileged under CPLR 3101(d). Kandel v. Tocher, 22 A.D.2d 513, 256 N.Y.S.2d 898 (1st Dep't 1965); Finegold v. Lewis, 22 A.D.2d 447, 256 N.Y.S.2d 358 (2d Dep't 1965); ESSA Realty Corp. v. J. Thomas Realty Corp., 2010 NY Slip Op 31598U (N.Y. Sup. Ct., New York County, 2010). Privilege once waived is "waived for all time." Strader v. Collins, 280 A.D. 582, 116 N.Y.S.2d 318 (1st Dep't 1952). PRODUCTS LIABILITY General. Liability for defective product rests on theories of defective design, manufacturing defect, failure to warn, and/or breach of warranty. See Liriano v. Hobart Corp., 92 N.Y.2d 232, 700 N.E.2d 303 (1998); Denny v. Ford

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Motor Company, 87 N.Y.2d 248, 662 N.E.2d 730 (1995); see also Nealy v. United States Surgical Corp., 587 F. Supp. 2d 579 (S.D.N.Y. 2008); Tedone v. H.J. Heinz Co., 686 F. Supp. 2d 300 (S.D.N.Y. 2009). Liability may be imposed upon all entities within chain of distribution for placing defective product into stream of commerce. Gebo v. Black Clawson Co., 92 N.Y.2d 387, 703 N.E.2d 1234 (1998); Michael v. Gen. Tire, Inc., 297 A.D.2d 629, 747 N.Y.S.2d 40 (2d Dep't 2002). Plaintiff must prove that defect was substantial cause of accident regardless of whether action sounds in strict products liability, breach of warranty, or negligence. Fahey v. A.O. Smith Corp., 77 A.D.3d 612, 908 N.Y.S.2d 719 (2d Dep't 2010); Clarke v. Helene Curtis, Inc., 293 A.D.2d 701, 742 N.Y.S.2d 325 (2d Dep't 2002). Design Defect. Existence of design defect depends on whether the defect's risk outweighs the product's utility. Denny v. Ford Motor Company, 87 N.Y.2d 248, 662 N.E.2d 730 (1995) (listing factors to be considered in making determination); Robinson v. Reed-Prentice, 49 N.Y.2d 471, 403 N.E.2d 440 (1980) ("a defectively designed product is one which, at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use"). In order to establish a prima facie case for a defective design claim a plaintiff must establish the existence of safer, feasible, alternative design and that alternative design would have prevented injuries. Felix v. Akzo Nobel Coatings, Inc., 262 A.D.2d 447, 692 N.Y.S.2d 413 (2d Dep't 1999); Abar v. Freightliner Corp., 208 A.D.2d 999, 617 N.Y.S.2d 209 (3d Dep't 1994); see also Adamo v. Brown & Williamson Tobacco Corp., 11 N.Y.3d 545, 900 N.E.2d 966 (2008). Manufacturer's liability for defective design is based upon whether the product was defectively designed as of the date the product was manufactured. Cover v. Cohen, 61 N.Y.2d 261, 461 N.E.2d 861 (1984). However, a manufacturer has a post-sale duty to warn and may be liable for failing to warn of dangers in using the product that the manufacturer discovers after the manufacturer sold the product. Id.; Adams v. Genie Industries, Inc., 14 N.Y.3d 535, 929 N.E.2d 380 (2010) (duty to warn, but not to recall or retrofit); Magadan v. Interlake Packaging Corp., 45 A.D.3d 650, 845 N.Y.S.2d 443 (2d Dep't 2007). A product manufacturer may not be liable for damages when an experienced consumers declines to purchase the product with optional safety devices. See Passante v. Agway Consumer Prod-

ucts, Inc., 294 A.D.2d 831, 741 N.Y.S.2d 624 (4th Dep't 2002); Scarangella v. Thomas Built Buses, Inc., 93 N.Y.2d 655, 717 N.E.2d 679 (1999). Defendants are not required to produce accidentproof products. Aparicio v. Acme, 33 A.D.3d 480, 823 N.Y.S.2d 364 (1st Dep't 2006); Mayorga v. ReedPrentice, 238 A.D.2d 483, 656 N.Y.S.2d 652 (2d Dep't 1997); Cuntan v. Hitachi KOKI USA, Ltd., 2009 WL 3334364 (E.D.N.Y. 2009). Manufacturer must exercise degree of care when designing product so as to avoid creating unreasonable risk of harm during product's intended use or foreseeable unintended use. Lugo v. LJN Toys, Ltd., 75 N.Y.2d 850, 552 N.E.2d 162 (1990); Sugrim v. Ryobi Tech., Inc., 73 A.D.3d 904, 901 N.Y.S.2d 327 (2d Dep't 2010). Liability will not attach simply because product is dangerous in and of itself (e.g., guns and knives); plaintiff must establish cognizable defect. Robinson v. ReedPrentice, 49 N.Y.2d 471, 403 N.E.2d 440 (1980); McCarthy v. Olin Corp., 119 F.3d 148 (2d Cir. (N.Y.) 1997). Expert opinion required for purposes of defeating defective design claim in proving that product could not be designed in an alternative, safer way. Yun Tung Chow v. Reckitt & Colman, Inc., 17 N.Y.3d 29, 950 N.E.2d 113 (2011). Before the Note of Issue and Certificate of Readiness is filed the parties must disclose experts who will submit affidavits in support of or in opposition to summary judgment motions. Eherenberg v. Starbucks Coffee, 82 A.D.3d 829, 918 N.Y.S.2d 556 (2d Dep't 2011). Post-accident modification not admissible in negligence case, but is admissible in alleged defective design case, unless manufacturer admits feasibility of plaintiffs alternate design. Cover v. Cohen, 61 N.Y.2d 261, 461 N.E.2d 864 (1984); (changes in design admissible to demonstrate feasibility of alternatives); Caprara v. Chrysler Corp., 52 N.Y.2d 114, 417 N.E.2d 545 (1981) (post-accident design change allowed in evidence where it is "supportive of `manufacturing and assembly defect' theory"; not applicable in negligence or strict liability cases); DePasquale v. Morbark Indus., 221 A.D.2d 409, 633 N.Y.S.2d 543 (2d Dep't 1995); Kaplan v. Einy, 209 A.D.2d 248, 618 N.Y.S.2d 777 (1st Dep't 1994). Postaccident design change allowed in evidence where it is "supportive of manufacturing and assembly defect" on which this case went to jury. Not applicable in negligence or strict liability cases. Caprara v. Chrysler Corp., 52 N.Y.2d 114, 417 N.E.2d 545 (1981); Rainbow v. Albert Elia Building Co., 79 A.D.2d 287, 436 N.Y.S.2d 480 (4th Dep't 1981), aff'd, 56 N.Y.2d 550, 434 N.E.2d 1345 (1982). Also changes in design admissible to

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demonstrate feasibility of alternatives. Cover v. Cohen, 61 N.Y.2d 261, 461 N.E.2d 864 (1984). Also availability of modification as of date of manufacture. Majchrzak v. Heil Co., 99 A.D.2d 649, 471 N.Y.S.2d 722 (4th Dep't 1984). Federal Pre-Emption. Compliance with Federal Product standard is some evidence of due care. Spiconardi v. Macy's East, Inc., 83 A.D.3d 472, 923 N.Y.S.2d 28 (1st Dep't 2011); Liquore v. Tri-Arc Mfg. Co., 32 A.D.3d 905, 821 N.Y.S.2d 246 (2d Dep't 2006); Feiner v. Calvin Klein, 157 A.D.2d 501, 549 N.Y.S.2d 692 (1st Dep't 1990). Manufacturing Defect. Plaintiff must prove that product deviated from intended design in a material way when it left manufacturer's control. Caprara v. Chrysler Corp., 52 N.Y.2d 114, 417 N.E.2d 545 (1981); see also Rabon-Willimack v. Robert Mondavi Corp.,73 A.D.3d 1007, 905 N.Y.S.2d 190 (2d Dep't 2010); Preston v. Peter Luger Enterprises, Inc., 51 A.D.3d 1322, 858 N.Y.S.2d 828 (3d Dep't 2008); Wesp v. Carl Zeiss, Inc., 11 A.D.3d 965, 783 N.Y.S.2d 439 (4th Dep't 2004); McArdle v. Navistar Int'l Corp., 293 A.D.2d 931, 742 N.Y.S.2d 146 (3d Dep't 2002). Evidence establishing that product operated properly will defeat manufacturing defect claim. Sugrim v. Ryobi Tech., Inc., 73 A.D.3d 904, 901 N.Y.S.2d 327 (2d Dep't 2010); Pierre-Louis v. DeLonghi America, Inc., 66 A.D.3d 859, 887 N.Y.S.2d 628 (2d Dep't 2009); McArdle v. Navistar Int'l Corp., 293 A.D.2d 931, 742 N.Y.S.2d 146 (3d Dep't 2002). Plaintiff need not prove specific defect. Ramos v. Howard Indus., Inc., 10 N.Y.3d 218, 885 N.E.2d 176, (2008); Halloran v. Virginia Chemicals, Inc., 41 N.Y.2d 386, 361 N.E.2d 991; Codling v. Paglia, 32 N.Y.2d 330, 298 N.E.2d 622 (1973). Defect causation can be proved by circumstantial evidence and plaintiff need not prove specific causal mechanism. Schneider v. Kings Hwy. Hosp. Ctr., Inc., 67 N.Y.2d 743, 490 N.E.2d 1221 (1986); Riglioni v. Chambers Ford, Inc., 36 A.D.3d 785, 828 N.Y.S.2d 520 (2d Dep't 2007); Hunter v. Ford Motor Co., 37 A.D.2d 335, 325 N.Y.S.2d 469 (3d Dep't 1971); Markel v. Spencer, 5 A.D.2d 400, 171 N.Y.S.2d 770 (4th Dep't 1958), aff'd, 5 N.Y.2d 958, 157 N.E.2d 713 (1959). However, prima facie case requires plaintiff to show that it was more likely than not that defendant was responsible for accident. Ramos v. Howard Indus., Inc., 10 N.Y.3d 218, 885 N.E.2d 176 (2008); Speller v. Sears, Roebuck & Co., 100 N.Y.2d 38, 790 N.E.2d 252 (2003); Mincieli v. Pequa Industries, Inc., 56 A.D.3d 627, 867 N.Y.S.2d 535 (2d Dep't 2008); Ortega v. Trefz, 44 A.D.3d 916,

845 N.Y.S.2d 73 (2d Dep't 2007); Silver v. Quality Taste Rest. Inc., 11 A.D.3d 239, 782 N.Y.S.2d 358 (1st Dep't 2004); Tardella v. RJR Nabisco, Inc., 178 A.D.2d 737, 576 N.Y.S.2d 965 (3d Dep't 1991). Recall letters are admissible to show existence of defect; letters, however, do not render the product defective per se. Iadicicco v. Duffy, 60 A.D.2d 905, 401 N.Y.S.2d 557 (2d Dep't 1978); Barry v. Manglass, 55 A.D.2d 1, 389 N.Y.S.2d 870 (2d Dep't 1976); see also Brown v. Michael Business Machines Corp., 428 N.Y.S.2d 148, 104 Misc. 2d 200 (N.Y. Sup. Ct., New York County, 1980). Failure to Warn. Manufacturer must warn of latent dangers resulting from foreseeable uses of its products of which it knew or should have known. Liriano v. Hobart Corp., 92 N.Y.2d 232, 700 N.E.2d 303, 677 N.Y.S.2d 764 (1998); Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289, 591 N.E.2d 222 (1992). Manufacturer is charged with duty to stay informed of product developments and warn users of dangers unknown at time of sale. Adams v. Genie Industries, Inc.,14 N.Y.3d 535, 929 N.E.2d 380 (2010); Cover v. Cohen, 61 N.Y.2d 261, 473 N.Y.S.2d 378 (1984); Magadan v. Interlake Packaging Corp., 45 A.D.3d 650, 845 N.Y.S.2d 443 (2d Dep't 2007); Vincenty v. Cincinnati Inc., 25 A.D.3d 463, 807 N.Y.S.2d 92 (1st Dep't 2006). Absence or inadequacy of warnings must be proximate cause of accident; user may be knowledgeable of product prior to accident or unwilling to read warnings. Howard v. Poseidon Pools, Inc., 72 N.Y.2d 972, 530 N.E.2d 1280 (1988); Fredette v. Town of Southampton, ___ N.Y.S.2d ___, 2012 WL 1606066 (2d Dep't 2012); Leone v. BJ's Wholesale Club, Inc., 89 A.D.3d 406, 931 N.Y.S.2d 327 (1st Dep't 2011); Call v. Banner Metals, Inc., 45 A.D.3d 1470, 846 N.Y.S.2d 827 (4th Dep't 2007); Haggerty v. Wyeth Ayerst Pharms., 11 A.D.3d 511, 782 N.Y.S.2d 842 (2d Dep't 2004); Sosna v. Am. Home Prods., 298 A.D.2d 158, 748 N.Y.S.2d 548 (1st Dep't 2002); Mayorga v. Reed-Prentice, 238 A.D.2d 483, 656 N.Y.S.2d 652 (2d Dep't 1997). Manufacturer does not have duty to warn against open and obvious dangers. Liriano v. Hobart Corp., 92 N.Y.2d 232, 700 N.E.2d 303, 677 N.Y.S.2d 764 (1998); Fisher v. Flanigan, 89 A.D.3d 1398, 932 N.Y.S.2d 272 (4th Dep't 2011); Fitzgerald v. Federal Signal Corp., 63 A.D.3d 994, 883 N.Y.S.2d 67 (2d Dep't 2009). Liability may be imposed, however, if the plaintiff is an inexperienced user. Johnson v. Delta Int'l Mach. Corp., 60 A.D.3d 1307, 876 N.Y.S.2d 577 (4th Dep't 2009). Issue of fact may exist as to whether danger was sufficiently

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open and obvious. Smith v. Minster Mach. Co., 233 A.D.2d 892, 649 N.Y.S.2d 257 (4th Dep't 1996). Adequacy of warning is question of fact. Nagel v. Brothers Intl. Food, Inc., 34 A.D.3d 545, 825 N.Y.S.2d 93 (2d Dep't 2006); but see Martin v. Hacker, 83 N.Y.2d 1, 628 N.E.2d 1308 (1993) (warning sufficient as matter of law). Breach of Warranty. For claim of breach of implied warranty of merchantability, plaintiff must show that product was not fit for the ordinary purpose. Bradley v. Earl B. Feiden, Inc., 8 N.Y.3d 265, 864 N.E.2d 600 (2007); Denny v. Ford Motor, 87 N.Y.2d 248, 662 N.E.2d 730 (1995). Liability under breach of implied warranty of fitness for particular use attaches when seller, at time of contracting, has reason to know particular purpose for which plaintiff requires good and that buyer is relying on seller's skill or judgment when purchasing good. Henry v. Rehab Plus Inc., 404 F. Supp. 2d 435 (E.D.N.Y. 2005);Butler v. Interlake Corp., 244 A.D.2d 913, 665 N.Y.S.2d 192 (4th Dep't 1997); Leahy v. Mid-West Conveyor Co., 120 A.D.2d 16, 507 N.Y.S.2d 514 (3d Dep't 1986); Malul v. Capital Cabinets, Inc., 191 Misc. 2d 399, 740 N.Y.S.2d 828 (N.Y. Civ. Ct., Kings County, 2002). Breach of express warranty requires representations made on behalf of the manufacturer for the purpose of inducing reliance by purchasers. Randy Knitwear, Inc. v. American Cyanamid Co., 11 N.Y.2d 5, 181 N.E.2d 399 (1962); Meyer v. Alex Lyon & Son, 67 A.D.3d 547, 889 N.Y.S.2d 166 (1st Dep't 2009); Imperia v. Marvin Windows, 297 A.D.2d 621, 747 N.Y.S.2d 35 (2d Dep't 2002); Friedman v. Medtronic, Inc., 42 A.D.2d 185, 345 N.Y.S.2d 637 (2d Dep't 1973) (whether seller's statements amounted to express warranty is ordinarily question of fact). Lack of privity does not preclude tort liability for "breach of warranty." Martin v. Julius Dierck Equipment Co., 43 N.Y.2d 583, 374 N.E.2d 97 (1978); Codling v. Paglia, 32 N.Y.2d 330, 298 N.E.2d 622, 345 N.Y.S.2d 461(1973); Calabria v. St. Regis Corp., 124 A.D.2d 514, 508 N.Y.S.2d 186 (1st Dep't 1986). Implied warranties may be excluded or modified by conspicuous writing. Velez v. Craine & Clark Lumber Corp., 33 N.Y.2d 117, 305 N.E.2d 750, 350 N.Y.S.2d 617 (1973); Carbo Industries v. Becker Chevrolet, 112 A.D.2d 336, 491 N.Y.S.2d 786 (2d Dep't 1985) (question of whether disclaimer is conspicuous is question of law).

Manufacturer may not limit warranty of merchandise on basis that retailer (dealer) has gone out of business. N.Y. Gen. Bus. Law § 369-b (McKinney 2007). Strict products liability not applicable to furnishing of services such as hospital supplying blood and hospital cannot be held on breach of warranty as it is not sale. Iannucci v. Yonkers General Hospital, 59 A.D.2d 887, 399 N.Y.S.2d 39 (2d Dep't 1977); Simone v. Long Island Jewish Hillside Medical Center, 81 Misc. 2d 163, 364 N.Y.S.2d 714 (N.Y. Sup. Ct. 1975); Perlmutter v. Beth David Hosp., 308 N.Y. 100, 123 N.E.2d 792 (1954) Mondello v. New York Blood Ctr., 80 N.Y.2d 219, 604 N.E.2d 81 (1992) (Citing N.Y. Public Health Law § 580 [4] (McKinney 1993)). Second hand vehicles must be inspected and condition warranted by seller. N.Y. Veh. & Traf. Law § 417 (McKinney 2007); Pierce v. International Harvester, 61 A.D.2d 255, 402 N.Y.S.2d 674 (4th Dep't 1978). Defenses. Altered Product. Subsequent modification which substantially alters product and is proximate cause of plaintiffs injuries relieves manufacturer of liability. Amatulli v. Delhi Constr., 77 N.Y.2d 525, 571 N.E.2d 645 (1991); Robinson v. Reed-Prentice, 49 N.Y.2d 471, 403 N.E.2d 440 (1980); Bauerlein v. Salvation Army, 74 A.D.3d 851, 905 N.Y.S.2d 215 (2d Dep't 2010); Barnes v. Pine Tree Mach., 261 A.D.2d 295, 691 N.Y.S.2d 398 (1st Dep't 1999). However, where dangerous post-sale alterations are foreseeable, manufacturer may be liable. Fernandez v. Mark Andy, Inc., 7 A.D.3d 484, 776 N.Y.S.2d 305 (2d Dep't 2004); Rios v. Rockwell Int'l Corp., 268 A.D.2d 279, 701 N.Y.S.2d 386 (1st Dep't 2000); Lopez v. Precision Papers, Inc., 107 A.D.2d 667, 484 N.Y.S.2d 585 (2d Dep't 1985); but see Hernandez v. Biro Mfg. Co., 251 A.D.2d 375, 674 N.Y.S.2d 72 (2d Dep't 1998) (manufacturer not liable for injury even though removal of safety guard may have been foreseeable). Causal Seller. Corporation that sold used machine as surplus property was not liable to remote purchases either in strict product liability or in negligence, for injuries allegedly resulting from defect in machine. Jaramillo v. Weyerhaeuser Co., 12 N.Y.3d 181, 906 N.E.2d 387 (2009); Sukljian v. Charles Ross & Son Co., 69 N.Y.2d 89, 503 N.E.2d 1358 (1986); Marte v. W.O. Hickok Mfg., 159 A.D.2d 316, 552 N.Y.S.2d 300 (1st Dep't 1990); but see Goldman v. Packaging Industries, 144 A.D.2d 533, 534 N.Y.S.2d 388 (2d Dep't 1988) (where used vendor could be held liable for negligently failing to warn of known defects). Economic Loss Doctrine. Tort-based actions are barred where plaintiff seeks to recover loss stemming

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from damage to the product itself or consequential damages resulting from product mishap. Bocre Leasing Corp. v. GMC, 84 N.Y.2d 685, 645 N.E.2d 1195 (1995); Weiss v. Polymer Plastics Corp., 21 A.D.3d 1095, 802 N.Y.S.2d 174 (2d Dep't 2005); Hydro Investors, Inc. v. Trafalgar Power Inc., 227 F.3d 8 (2d Cir. (N.Y.) 2000). Misuse of Product. Plaintiff's misuse of product, in and of itself, does not entitle defendant to summary judgment; defendant must show that plaintiff's actions were the sole proximate cause of accident. Yun Tung Chow v. Reckitt & Colman, Inc., 17 N.Y.3d 29, 950 N.E.2d 113 (2011); Crawford v. Windmere Corp., 262 A.D.2d 268, 690 N.Y.S.2d 741 (2d Dep't 1999); Sheppard v. Charles A. Smith, 93 A.D.2d 474, 463 N.Y.S.2d 546 (3d Dep't 1983); see also Anibal Del Cid v. Beloit Corp., 901 F. Supp. 539 (E.D.N.Y. 1995). Punitive Damages. Punitive damages allowed in strict products liability case where theory of liability was failure to warn and where there was evidence it was wanton, or in conscious disregard of others. Home Ins. v. Am. Home Products, 75 N.Y.2d 196, 550 N.E.2d 930 (1990); Dubecky v. S2 Yachts, 234 A.D.2d 501, 651 N.Y.S.2d 602 (2d Dep't 1996);. In New York no insurance coverage allowed for punitive. See Zurich Ins. Co. v. Shearson Lehman, 84 N.Y.2d 309, 642 N.E.2d 1065 (1994); see also "DAMAGES." Specifications. Where custom product is manufactured in accordance with specifications, liability does not attach unless specifications are so defective that manufacturer should have known of danger. Gray v. R.L. Best Co., 78 A.D.3d 1346, 910 N.Y.S.2d 307 (3d Dep't 2010); Houlihan v. Morrison Knudsen Corp., 2 A.D.3d 493, 768 N.Y.S.2d 495 (2d Dep't 2003); West v. City of Troy, 231 A.D.2d 825, 647 N.Y.S.2d 63 (3d Dep't 1996). RELEASE No particular form needs to be used to constitute a "release" but the writing must contain an expression of a present intention to renounce a claim. State v. Upstate Storage, Inc., 145 A.D.2d 714, 535 N.Y.S.2d 246 (3d Dep't 1988). See also N.Y. Gen. Obligations Law § 15303. No consideration is required to make a written release binding. Collins v. E-Magine, LLC, 291 A.D.2d 350, 739 N.Y.S.2d 15 (1st Dep't 2002); Laugh Factory, Inc. v. Basciano, 608 F. Supp. 2d 549 (S.D.N.Y. 2009). See also N.Y. General Obligations Law § 15-303. The courts will generally enforce a valid release which is clear and unambiguous and which the parties knowingly and voluntarily executed. Chaudhry v. Gar-

vale, 262 A.D.2d 518, 692 N.Y.S.2d 447 (2d Dep't 1999). General release, unlimited in scope, discharge all plaintiff's causes of action, known or unknown at time against that defendant. See Knapp Engraving Co. v. John Post Constr., 107 N.Y.S.2d 328 (N.Y. Sup. Ct. 1951), aff'd, 280 A.D. 763, 113 N.Y.S.2d 647 (1st Dep't 1952). Plaintiff general release bars co-defendant joint tortfeasor cross-complaint for contribution, but not for indemnification. Gen. Oblig. Law § 15-108 (McKinney 2011). Pursuant to CPLR §5003 a plaintiff can enter judgment without further notice to any part for the amount stated in a release plus additional costs and disbursements if defendant does not deliver payment to plaintiff attorney within 21 days from date closing papers were mailed to defendant attorney. Joint Tortfeasors. Release or covenant not to sue one tortfeasor does not discharge other tortfeasors unless its terms expressly so provide, but reduces claim against them to extent of greatest of (a) amount stated in release, (b) amount of consideration paid, or (c) amount of released party's share under Dole rule as codified in Article 14 of CPLR (Gen. Oblig. Law § 15-108). Major purposes of General Obligations Law § 15108 are 1) motivate settlements and 2) ensuring that nonsettling tortfeasor not be burdened with more than his equitable share of liability. Good detailed explanation, status of settling defendant and co-defendants can only assert indemnification claims against settling tortfeasor (defendant). See Mielcarek v. Knights, 50 A.D.2d 122, 375 N.Y.S.2d 922 (4th Dep't 1975). Release given by injured party to one tortfeasor releases such tortfeasor from liability to any other person for contribution under Article 14 of CPLR. (Gen. Oblig. Law § 15-108(b)). Joint tortfeasor who obtains release is not entitled to contribution from any other person. Gen. Oblig. Law § 15-108(c). For a defendant joint tortfeasor to obtain benefits of a partial settlement prior to verdict, must amend answer and plead Gen. Oblig. Law § 15-108; CPLR §3018 (b) as affirmative defense, even during trial. Manginaro v. Nassau Medical, 123 A.D.2d 842, 507 N.Y.S.2d 455 (2d Dep't 1986). Verdict or claim of plaintiff against nonsettling tortfeasors is reduced by amount of settlement or in amount of released tortfeasors equitable share of damages. (CPLR §4533-b). Rule followed even when jury found no fault on part of defendant who settled during trial. See Purcell v. Doherty, 55 N.Y.2d 985, 434 N.E.2d 255 (1982).

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Equitable subrogation should be liberally applied to protect insurers. General rule is that a general release may prejudice the rights of the subrogee by extinguishing rights of subrogation, "`if the tortfeasor's settlement occurred after it had learned of the subrogation right, but without the insurance company's consent, the settlement [will] not . . . destroy[] the insurance company's right to proceed in subrogation action" against tortfeasor. See Group Health Inc. v. Mid-Hudson Cablevision, Inc., 58 A.D.3d 1029, 871 N.Y.S.2d 780 (3d Dep't 2009). Fraud and Misrepresentation. Where injured party has executed release under impression that injuries are minor when in fact, they are serious, release not void, but voidable only. See Gilbert v. Rothschild, 280 N.Y. 66, 19 N.E.2d 785 (1939). Procured by false representation, not binding. See Moses v. Carver, 164 Misc. 204, 298 N.Y.S. 378 (N.Y. Sup. Ct. 1937), aff'd, 254 A.D. 402, 5 N.Y.S.2d 783 (3d Dep't 1938), leave to appeal denied, 279 N.Y. 812, 17 N.E.2d 684 (1938); Stephens v. Nolan, 257 A.D. 856, 12 N.Y.S.2d 512 (2d Dep't 1939); Inman v. Merchants Mutual, 190 Misc. 720, 74 N.Y.S.2d 87 (N.Y. Sup. Ct. 1947), aff'd, 274 A.D. 320, 82 N.Y.S.2d 801 (3d Dep't 1948) (discussing remedies for defrauded party). Validity of release is question for jury. Farrington v. Harlem, 280 N.Y. 1, 19 N.E.2d 657 (1939); see also Bronson v. Hansel, 16 N.Y.3d 850 (2011); Centro Empresarial Cempresa v. Am. Movil, 2011 N.Y. Slip Op. 04720 (2011); Haynes v. Garez, 304 A.D.2d 714, 758 N.Y.S.2d 391 (2d Dep't 2003). Procured in Hospital. Unlawful to enter hospital to settle, obtain release or statement respecting personal injuries within 15 days after injury sustained unless 5 days prior thereto injured party has consented in writing. Does not apply to injured person's attorney. N.Y. Jud. Law § 480 (McKinney 2007). Violation of Judiciary Law § 480, release not void. Thorne v. Columbia, 167 Misc. 72, 3 N.Y.S.2d 537 (N.Y. City. Ct. 1938), rev'd on other grounds, 168 Misc. 255, 5 N.Y.S.2d 775 (N.Y. App. Term 1938); Moses v. Carver, 164 Misc. 204, 298 N.Y.S. 378 (N.Y. Sup. Ct. 1937), aff'd, 254 A.D. 402, 5 N.Y.S.2d 783 (3d Dep't 1938), leave to appeal denied, 279 N.Y. 812, 17 N.E.2d 684 (1938). Unknown Injuries. Mistake of fact of unknown injury constitutes reason to avoid release. See Mangini v. McClurg, 24 N.Y.2d 556, 249 N.E.2d 386, 301 N.Y.S.2d 508 (1969); see also Le Francois v. Hobart, 31 N.Y.S.2d 200 (N.Y. Sup. Ct. 1941), aff'd, 287 N.Y. 638, 39 N.E.2d 271 (1941); Tropp v. Safeguard, 263 A.D. 306, 32 N.Y.S.2d 581 (1st Dep't 1942). Release Language Interpretation. Releases subject to interpretations rules under contract law. See Mangini v. McClurg, 24 N.Y.2d 556, 249 N.E.2d 386, 301

N.Y.S.2d 508 (1969); Caruso v. Northeast Emergency Med., 862 N.Y.S.2d 867 (3d Dep't 2008). REPRESENTATIONS AND WARRANTIES Proof of material misrepresentation makes prima facie case for rescission. Travelers v. Pomerantz, 246 N.Y. 63, 158 N.E. 21 (1927); see also South American Exchange v. Epic Sec. Corp., 243 A.D.2d 405, 663 N.Y.S.2d 560 (1st Dep't 1997); East 115th St. Realty Corp. v. Focus & Struga Building Developers, LLC, 27 Misc. 3d 1206(A), 910 N.Y.S.2d 404 (N.Y. Supp. 2010); but see Security Mutual Life Ins. Co. of New York v. Rodriguez, 880 N.Y.S.2d 619 (1st Dep't 2009) (noting that waiver may prevent rescission even when material misrepresentation is made). Though innocent, if material, insurer entitled to rescind contract provisions. See, Curanovic v. New York Cent. Mut Fire Ins. Co., 762 N.Y.S.2d 148 (3d Dep't 2003); Equitable v. Kaplan, 168 Misc. 24, 5 N.Y.S.2d 154 (N.Y. Sup. Ct. 1938), aff'd, 258 A.D. 1038, 17 N.Y.S.2d 1005 (1st Dep't 1940) (rescinding disability and double indemnity provisions regardless of truth or falsity of misrepresentation); Equitable v. Schusterman, 255 A.D. 54, 5 N.Y.S.2d 368 (1st Dep't 1938); East 115th St. Realty Corp. v. Focus & Struga Building Developers, LLC, 27 Misc. 3d 1206(A), 910 N.Y.S.2d 404 (N.Y. Sup. 2010) (noting material misrepresentation avoids contract). False representation not warranty unless fraudulently made. See Charlton v. Metropolitan, 202 A.D. 814, 195 N.Y.S. 64 (2d Dep't 1922) (noting, conversely, Court of Appeals recognized a false representation, that was not fraudulent, as a warranty). If fraudulently made warranty and policy is void. Id.; see also American v. Patriotic, 242 N.Y. 54, 150 N.E. 599 (1926). Misrepresentation by insured though withdrawn later, voids entire policy. See Happy v. American, 286 A.D. 505, 145 N.Y.S.2d 206 (1st Dep't 1955), aff'd in part, modified in part, 1 N.Y.2d 534, 136 N.E.2d 842 (1956). The insurance company does not have to actually be deceived or injured by the false representation to void the entire policy and preclude recovery. See Happy v. American, 286 A.D. 505, 145 N.Y.S.2d 206 (1st Dep't 1955), aff'd in part, modified in part, 1 N.Y.2d 534, 136 N.E.2d 842 (1956). N.Y. Veh. & Traf. Law § 313 provides sole and exclusive method by which automobile insurance coverage for which certificate of insurance has been issued under § 312 can be terminated. Insurer, therefore, is foreclosed from rescinding policy ab initio for fraud. See Insurance Co. of North America v. Kaplun, 274 A.D.2d 293, 713 N.Y.S.2d 214 (2d Dep't 2000); Didonna v. State Farm Mut. Auto. Ins. Co., 259 A.D.2d 727, 687 N.Y.S.2d 175 (2d Dep't 1999); Mooney v. Nationwide Mut. Ins. Co., 172 A.D.2d 144. 577 N.Y.S.2d 506 (3d Dep't 1991); see

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also, Met Life Auto & Home v. Agudelo, 8 A.D.3d 571, 780 N.Y.S.2d 21 (2d Dep't 2004) (noting that the burden to discover the fraud is on the insurer before issuing policy or shortly thereafter, and protects third-party who may be injured due to insureds negligence); Global Liberty Ins. Co. of NY v. Pelaez, 84 A.D.3d 803, 922 N.Y.S.2d 510 (2d Dep't 2011) (same). Even though at time of issuance of burglary policy company knew of facts rendering it void, it may, where insured is cautioned to read policy, in absence of fraud on its part, avoid policy. Satz v. Massachusetts, 243 N.Y. 385, 153 N.E. 844 (1926). Concealment, to constitute breach of warranty, need not relate to fact of such nature as to increase risk or hazard but is material if insurer, with knowledge thereof, would have rejected risk. See Sebring v. Fidelity, 255 N.Y. 382, 174 N.E. 761 (1931); Hinderhofer v. Daisy Manufacturing Co., Inc., 286 A.D.2d 419, 729 N.Y.S.2d 512 (2d Dep't 2001). Concealment of conviction, in absence of inquiry by insurer, held not to have avoided salesmen's floater policy. Good discussion of "concealment." Stecker v. American, 299 N.Y. 1, 84 N.E.2d 797 (1949). Concealment or omission of material fact does not void an insurance policy absent intent to defraud. See H.B. Singer, Inc. v. Mission Nat'l Ins. Co., 636 N.Y.S.2d 316 (1st Dep't 1996); see also Union Carbide Corp. v. Affiliated FM Ins. Co., 2010 N.Y. Slip Op. 51656(U) (N.Y. Sup. Sept. 9, 2010); Willis v. New York Mutual Fire Ins. Co., 2002 N.Y. Slip Op. 40011(U) (N.Y. Sup. Jan. 29, 2002). Description of property in fire binder is warranty. American v. Patriotic, 242 N.Y. 54, 150 N.E. 599 (1926). Sole and unconditional ownership clause breached though attorney requested agent to include wife co-owner as named insured; no evidence of assent by company. Palma v. National, 240 A.D. 454, 270 N.Y.S. 503 (4th Dep't 1934). Insured having sustained burglary loss but not having received indemnity therefore, held to have breached warranty by answering in negative clause reading "The assured has not sustained nor received any indemnity for any loss or damage by Burglary, Theft, or Robbery..." Sirvint v. Fidelity & Deposit Co., 242 A.D. 187, 272 N.Y.S. 555 (1st Dep't 1934), aff'd, 266 N.Y. 482, 195 N.E. 164 (1934). SERVICE OF PROCESS To commence an action in New York, a plaintiff must purchase an index number ($210) and file process (a summons & complaint or summons with notice). CPLR §304, 306-a, 3012. Depending on the method of

service by summons & complaint dictates the time period defendant has to answer; e.g., personal delivery to defendant inside New York, 20 days, any other means is 30 days. CPLR 3012 (a), (c). Plaintiff must file the summons and complaint prior to service. See Gershel v. Porr, 89 N.Y.2d 327, 675 N.E.2d 836 (1996); see also Fry v. Village of Tarrytown, 89 N.Y.2d 814, 680 N.E.2d 578 (1997) (noting that the defect is waivable by the defendant under 3211(e)). Failure to purchase index number may not be a nullity. See CPLR 2001; cf. Miller v. Waters, 51 A.D.3d 113, 853 N.Y.S.2d 183 (3d Dep't 2008) (court failed to apply the statute). Plaintiff has 120 days from when the fee was paid & papers filed to serve process. CPLR §306-b. if process is within that period, or within period extended by court, service relates back to the filing, regardless if statute of limitation expired prior to service. However, process must be served within 15 days from when the statute of limitations expires, where plaintiff's claim has a statute of limitations period of four months or less. Id. Process must be served by a nonparty 18 years or older. See CPLR §2103. Once summons filed with clerk service is only proper if made pursuant to CPLR 308. See CPLR 308. Under CPLR 308, process must be served on a person of suitable age and discretion. See id. Process may be served by first class mail, but only proper if defendant consents, i.e., defendant signs and return acknowledgement. See CPLR 312-a. Defendant has 30 days to consent to service by mail. Id. Service is complete once acknowledgment is placed in mailbox or personally delivered; defendant has 20 days there from to answer. Id. If acknowledgement not returned, server must use any other method of service and request reasonable costs for service. Id. Infant or incompetent may not be serviced by mail. Id.; see also CPLR §309 (service of process upon infant, incompetent or conservatee only effectuated by personal service on parent, guardian or conservator). Substituted Service. Before use of "nail and mail," CPLR §308(4), "due diligence" must be attempted in trying for personal service. See Feinstein v. Bergner, 422 N.Y.S.2d 356, 397 N.E.2d 1161 (1979) (must affix to actual residence and not to last known residence); O'Connor v. O'Connor, 52 Misc. 2d 950, 277 N.Y.S.2d 424 (N.Y. Sup. Ct. 1967) (a few visits at various times satisfies the due diligence requirement). Corporations. Service on a corporation may be effectuated by serving an officer, director, managing agent or general agent, cashier or assistant cashier, or any other agent authorized by appointment or by law to receive service. See CPLR §311. Under the CPLR, the secretary of state may be served as an alternative. Method of ser---- For Current Listings access www.ambest.com/legal----

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vice is governed by BCL § 306(b), which is effectuated by delivering to the secretary of state, or his/her deputy or designee in Albany two copies of the summons. The secretary keeps on and sends the other by certified mail to the corporation at its office address. See BCL § 306(b). The secretary's failure to forward service does not void the service; service is complete once secretary personally served. See Micarelli v. Regal Apparel Ltd., 52 A.D.2d 524, 381 N.Y.S.2d 511 (1st Dep't 1976). Service on unlicensed corporation governed by BCL § 307. Defunct Corporation. Where service upon secretary of state not feasible, because corporation is dissolved, the court may permit service on an insurer. See Cives Steel Co. v. Unit Builders, Inc., 262 A.D.2d 164, 692 N.Y.S.2d 65 (1st Dep't 1999). Upon Agent. An entity or person may be designated to act as agent for service of process. See CPLR §318. Service is proper on agent for non-resident motor carrier. See, Esperti v. Cardinale, 263 A.D. 46, 31 N.Y.S.2d 253 (2d Dep't 1941); Brinkmann v. Adrian Carriers, Inc., 29 A.D.3d 615, 815 N.Y.S.2d 196 (2d Dep't 2006). As alternative, service of process may be served on Superintendent of Insurance, which must be designated by insurers as agent for process, is effective. See Ins. Law § 1212 (McKinney 2007). However, designation of such, is not consent to jurisdiction in New York District Court unless insurer is doing business in New York State. Arkwright Mut. v. Scottsdale Ins., 874 F. Supp. 601 (S.D.N.Y. 1995). Upon Non-Resident Motorists. See "AUTOMOBILES." Attorney is responsible for improper service by independent process server. Kleeman v. Rheingold, 81 N.Y.2d 270, 614 N.E.2d 712, 598 N.Y.S.2d 149 (1993). SETTLEMENT Where settlement is $5,000 or more and claimant is an individual (not corporation or company), the carrier shall mail notice of sending check to claimant attorney or representative, also direct to claimant. 11 N.Y.C.R.R. 216.9. Insurance carrier or defendant shall within 21 days from receipt of closing papers, on judgment, pay the amount, or plaintiff or claimant's attorney or representative can enter judgment, plus interest, costs and disbursements without giving notice. CPLR §5003. Usual plaintiff attorney or claimant's representative prepare general release. The Centers for Medicare/Medicaid Services (CMS) requires their interests be protected prior to any settlement of the medical portion of a claim for qualified

individuals. Before finalizing a settlement defendants and insurers need to determine whether plaintiff falls into any category as defined by the Center for Medicare Services and/or § 111 of the Medicare, Medicaid SCHIP Extension Act of 2007 where there is a reasonable expectation of plaintiff having received or plaintiff will receive any benefits through the Center for Medicare Services within the next 30 months. Defendants and their insurers, pursuant to § 111 of the Medicare, Medicaid SCHIP Extension Act of 2007 should investigate whether: 1) at the time of executing a settlement agreement that plaintiff is less than 62.5 years old; 2) plaintiff has not applied for or received any benefits from the Social Security Administration; 3) plaintiff does not suffer from end stage renal failure or Lou Gehrig's disease; 4) plaintiff has not been disabled nor is he receiving disability benefits from any private or other group health plan; and 5) plaintiff does not intend to, and will not, seek any benefits through Medicare, Medicaid and/or Social Security Disability Insurance with regard to the injuries/claims alleged in this incident. Investigate whether a "set aside" fund or annuity should be made if plaintiff will be receiving benefits for medical expenses from Medicare, Medicaid or Social Security Disability Insurance. SUBROGATION General. Subrogation rights may be created by contract or may arise by operation of law based upon relationship of parties. Hartford Accident & Indem. Co. v. CNA Insurance Companies, 99 A.D.2d 310, 472 N.Y.S.2d 342 (1st Dep't 1984); North River Ins. Co. v. Spain Oil Corp., 135 Misc. 2d 480, 515 N.Y.S.2d 703 (N.Y. Sup., N.Y. County, 1987). Doctrine of Equitable Subrogation. Subrogation by operation of law, exists when one a party pays a debt under compulsion or to protect its own interest and for which another party is primarily responsible. Cashel v. Cashel, 94 A.D.3d 684, 941 N.Y.S.2d 236 (2d Dep't 2012); Hamlet at Willow Creek Development Co. LLC v. Northeast Land Development Corp., 64 A.D.3d 85, 878 N.Y.S.2d 97 (2d Dep't 2009). Scope of subrogation is broad however, subrogation does not exist when the payments sought to be recovered are voluntarily made. Broadway Houston Mack Development, LLC v. Kohl, 71 A.D.3d 937, 89 N.Y.S.2d 505 (2d Dep't 2010); Broadway Houston Mack Development, LLC v. Kohl, 71 A.D.3d 937, 897 N.Y.S.2d 505 (2d Dep't 2010) (payments not voluntary if made pursuant to contract or need to protect legal interests).

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Member insurance companies have agreement for property damage arbitration up to maximum amount in arbitration agreement. To extent of payment made by it, insurance company by right of subrogation (which right insured may not destroy) succeeds to all rights of insured against third party causing loss or damage. No formal assignment necessary. Right of subrogation accrues at time payment is made. If person causing damage pays insured, without knowledge of insurer's rights, he is relieved of liability to insurance company. If insured receive payment from wrongdoer for damage already paid for by insurance company, he will be deemed to hold proceeds for benefit of insurance company. If third party pay insured, with knowledge of rights of insurer, and procure release, such release not bar to insurer's right of action against him. Allstate Ins. Co. v Stein, 1 N.Y.3d 416, 807 N.E.2d 268 (2004); Group Health v. Mid-Hudson, 58 A.D.3d 1029, 871 N.Y.S.2d 780 (3d Dep't 2009); Hamilton v. Greger, 246 N.Y. 162, 158 N.E. 60 (1927); Ocean Accident v. Hooker, 240 N.Y. 37, 147 N.E. 351 (1925); Progressive Ins. Co. v. Sheri Torah, Inc., 44 A.D.3d 837, 847 N.Y.S.2d 90 (2d Dep't 2007); In re September 11 Litigation, 649 F. Supp. 2d 171 (S.D.N.Y. 2009); Wanamaker v. Otis, 228 N.Y. 192, 126 N.E. 718 (1920); Pacific v. L.A.D. Motors, 136 Misc. 594, 240 N.Y.S. 372 (N.Y. City Ct. 1930); Commercial v. Capital, 224 A.D. 553, 231 N.Y.S. 494 (1st Dep't 1928); Fort v. Globe, 186 A.D. 185, 173 N.Y.S. 595 (3d Dep't 1919), appeal dismissed, 227 N.Y. 581, 125 N.E. 918 (1919); Potomac v. MacNaughton, 191 Misc. 362, 77 N.Y.S.2d 110 (N.Y. Sup. Ct. 1948); Camden v. Bleem, 132 Misc. 22, 227 N.Y.S. 746 (N.Y. City Ct. 1928). Insurer which has paid judgment against insured and others, subrogated to rights of insured against joint tortfeasors. (Practice discussed). Hadcock v. Wiggins, 147 Misc. 252, 263 N.Y.S. 583 (N.Y. Sup. Ct. 1933), but see contra, Harper v. Wayman, 189 Misc. 348, 72 N.Y.S.2d 21. Settlement. Insurer entitled to reimbursement of settlement monies where settlement reasonable as matter of law. Uniroyal Inc. v. Home Ins. Co., 707 F. Supp. 1368 (E.D.N.Y. 1998). Collision Insurance. As to validity of loan agreements in settlement of losses, see "LOAN AGREEMENT." Insurer having paid, entitled to recover from insured where rights destroyed. Home v. Bernstein, 172 Misc. 763, 16 N.Y.S.2d 45 (N.Y. Mun. Ct. 1939). Counterclaim. Insurer paid loss, subrogated and commenced action against third party, who counterclaimed against insurer, alleging insured responsible for accident. Counterclaim dismissed. Occidental v. Herman, 179 Misc. 499, 38 N.Y.S.2d 278 (N.Y. Sup. Ct. 1942) superseded by statute as stated in Allstate v. Trans

Hudson Express, 4 Misc. 3d 1029A, 798 N.Y.S.2d 342 (N.Y. Sup. Ct. 2004). Fire Insurance. Insured purchased truck, made monthly payments; third party endorsed notes. Fire insurance company cancelled truck policy; neglected to give mortgagee (vendor) notice of cancellation; truck damaged. Insurer paid and took assignment from mortgagee; sued endorser of notes. Court of Appeals, divided 4 to 3, rejected claim. Fields v. Western, 290 N.Y. 209, 48 N.E.2d 489 (1943). Parties to Action. Insurer may join as party plaintiff, to extent of interest, in action against wrongdoer to have division of damages determined. United v. Metropolitan, 169 Misc. 1049, 9 N.Y.S.2d 497 (N.Y. App. Term 1938). Insurer can maintain suit in name of insured, where insured executed loan receipt in favor of his insurer. Point Tennis v. Irvin Industries, 63 A.D.2d 967, 405 N.Y.S.2d 506 (2d Dep't 1978); CPLR §1004. Insured sued fire insurer which had denied liability claiming that damage caused by third party not within coverage. Insurer not having paid or received assignment of loss, permitted to implead third party. Madison v. Royal, 281 A.D. 641, 120 N.Y.S.2d 626 (1st Dep't 1953), appeal denied, 281 A.D. 1030, 122 N.Y.S.2d 631 (1st Dep't 1953). SUICIDE Burden of establishing defense of suicide is upon insurer. Ostrander v. Travelers, 265 N.Y. 467, 193 N.E. 274 (1934) There is a rebuttable presumption against suicide. see also Bass v. Equitable Life Assur. Soc'y of U.S., 19 N.Y.S.2d 736 (N.Y. City Ct. 1940) (insurer has to overcome presumption against suicide); see also, Jahn v. Commercial Travelers Mut. Acc. Ass'n of Am., 259 A.D. 722, 18 N.Y.S.2d 72 (2d Dep't 1940). On second trial, judgment for plaintiff affirmed under Jahn v. Commercial Travelers Mut. Acc. Ass'n of Am., 260 A.D. 1044, 25 N.Y.S.2d 416 (2d Dep't 1940). Of mentally deranged patient, not accident within coverage of liability policy. Liberty v. New Amsterdam, 265 A.D. 883, 38 N.Y.S.2d 275 (2d Dep't 1942), leave to appeal denied, 265 A.D. 954, 39 N.Y.S.2d 606 (2d Dep't 1942). THEFT Automobile Defined. Merl v. Standard, 173 Misc. 230, 17 N.Y.S.2d 709 (N.Y. Sup. Ct. 1940). Collision damages sustained while stolen automobile being driven by officer to police station, not within exclusion of direct loss by theft. Bolling v. Northern Ins. Co. of N.Y., 280 N.Y. 510, 19 N.E.2d 920 (1939).

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Larceny. What constitutes. Notwithstanding Penal Law § 165.05 declaring use of automobile without owner's consent to be larceny, unauthorized use by garageman does not entitle insured to recover under theft policy for damages caused to automobile while thus unlawfully operated. Van Vechten v. American, 239 N.Y. 303, 146 N.E. 432 (1925). Theft from salesman's unattended auto not covered. Kinscherf v. St. Paul, 234 A.D. 385, 254 N.Y.S. 382 (2d Dep't 1931). "In custody of messenger" and "In transit" discussed. Starlight v. Glens Falls, 297 N.Y. 426, 79 N.E.2d 812 (1948). Mysterious Disappearance. Plaintiff entitled to recover when disappearance of ring was unexplainable and unaccountable. Levine v. Accident & Casualty, 203 Misc. 135, 112 N.Y.S.2d 397 (N.Y. Mun. Ct. 1952). TRIALS Trial Motions see Article 44, CPLR. Trial Motions. Motion for a directed verdict pursuant to CPLR §4401 should be granted as a matter of law because the plaintiff has not presented evidence in admissible form by which the jury could rationally base a finding in the plaintiff's favor. The Court of Appeals has held that where, as here, there is "no rational process" by which a jury could find in favor of the plaintiff, a trial court should grant a defendant's directed verdict motion under CPLR §4401. See e.g., Szczerbiak v. Pilat, 90 N.Y.2d 553, 686 N.E.2d 1346 (1997); Miller v. Bah, 74 A.D.3d 761, 902 N.Y.S.2d 174 (2d Dep't 2010). CPLR §4404. Adequacy or excessive jury verdicts. For example: Appellate Division reduced trial verdict of $350,000 to $71,600, or plaintiff can have new trial. Barcliff v. Brooklyn Hospital, 212 A.D.2d 562, 622 N.Y.S.2d 746 (2d Dep't 1995). Jury verdict not fair interpretation of the evidence, new trial ordered. Johnson v. Hallam, 208 A.D.2d 1110, 617 N.Y.S.2d 405 (3d Dep't 1994). Bifurcation. Cases in the Second Department Counties (Brooklyn, Queens, Nassau, Putnam, Suffolk, Dutchess, and Orange), in discretion of judge. First trial on liability issues, then if liability same jury hears injuries - damages. Experts. Expert can testify to "customary" practice but may not invade jury province by giving conclusion that basketball drill was dangerous and improper for plaintiff's age. Strauch v. Hirschman, 40 A.D.2d 711, 336 N.Y.S.2d 678 (2d Dep't 1972). An expert may not testify about the meaning or applicability of statutes or regulations. Rodriguez v. NYCHA, 209 A.D.2d 260, 618 N.Y.S.2d 352 (1st Dep't

1994); Ross v. Manhattan Chelsea Associates, 194 A.D.2d 332, 598 N.Y.S.2d 502 (1st Dep't 1993); Colon v. Rent-A-Center, Inc., 276 A.D.2d 58, 62, 716 N.Y.S.2d 7, 10 (1st Dep't 2000); Measom v. Greenwich and Perry St. Housing Corp., 268 A.D.2d 156, 712 N.Y.S.2d 1 (1st Dep't 2000). See also, Lichtman v. Heit, 300 A.D.2d 242, 752 N.Y.S.2d 649 (1st Dep't 2002). Experts may not themselves create the facts upon which their conclusions are based. Doomes v. Best Transit Corp., 17 N.Y.3d 594, ___ N.E.2d ___(2011); Simio v. New York City Transit Authority, 13 A.D.3d 609, 788 N.Y.S.2d 148 (2d Dep't 2004); Martinez v. Mullarkey, 41 A.D.3d 666, 839 N.Y.S.2d 148 (2d 2007); Wright v. New York City Housing Authority, 208 A.D.2d 327, 624 N.Y.S.2d 144 (1st Dep't 1995); see also, Amatulli v. Delhi Construction Corp., 77 N.Y.2d 525, 571 N.E.2d 645, 569 N.Y.S.2d; 237 (1991); Cortes v. Central Elevator, Inc., 45 A.D.3d 323, 845 N.Y.S.2d 259 (1st Dep't 2007); Mulhall v. Hannafin, 45 A.D.3d 55, 841 N.Y.S.2d 242 (1st Dep't 2007); Butler-Francis v. New York City Housing Authority, 33 A.D.3d 433, 834 N.Y.S.2d 15 (1st Dep't 2007), Bender v. Gross, 33 A.D.3d 417, 822 N.Y.S.2d 275 (1st Dep't 2006). "Expert testimony purportedly based upon scientific principles or procedures is only admissible after the `principle or procedure has gained general acceptance in its specified field.'". Selig v. Pfizer, Inc., 290 A.D.2d 319, 735 N.Y.S.2d 549 (1st Dep't 2002); People v. Wesley 83 N.Y.2d 417, 422, 633 N.E.2d 451 quoting, Frye v. United States, 293 F.2d 1013, 1014. "Where an expert states his conclusions without reliance on any facts or data, his opinion has no probative value." Maldonado v. Lee, 278 A.D.2d 206, 717 N.Y.S.2d 259 (2d Dep't 2000). Offer of Proof. If an item or answer is excluded at trial, counsel should make an offer of proof on the record describing the grounds for admissibility; an offer of proof will create a record for the appellate court. Juneau v. Morzillo, 56 A.D.3d 1082, 869 N.Y.S.2d 633 (3d Dep't 2008); Becker v. City of New York, 106 A.D.2d 595, 482 N.Y.S.2d 888 (2d Dep't 1984); Rottkamp v. Eger, 346 N.Y.S.2d, 74 Misc. 2d 858 (N.Y. Sup. Ct., Suffolk County, 1973). Jury determines facts. Durkin v. Peluso, 184 A.D.2d 940, 585 N.Y.S.2d 137 (3d Dep't 1992). Interpretation of contracts, and determining ambiguity, is a matter of law to be decided by the court. Hart v. Kinney Drugs, Inc., 67 A.D.3d 1154, 888 N.Y.S.2d 297 (3d Dep't 2009); Nappy v. Nappy, 40 A.D.3d 825, 836 N.Y.S.2d 256 (2d Dep't 2007). Ultimate conclusions are reserved for the jury. Strauch v. Hirschman, 40 A.D.2d 711, 336 N.Y.S.2d 678 (2d Dep't 1972) (expert permit---- For Current Listings access www.ambest.com/legal----

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ted to testify as to custom practice, but cannot conclude practice drill is dangerous or improper). Instructions to jury must not contain contradictory and inadequate statements of law. Septoff v. La Shellda Maintenance Corp., 242 A.D.2d 618, 662 N.Y.S.2d 549 (2d Dep't 1997); Cumbo v. Valente, 118 A.D.2d 679, 500 N.Y.S.2d 30 (2d Dep't 1986); see Callahan v. Buck Hill Inn, 65 A.D.2d 597, 409 N.Y.S.2d 416 (2d Dep't 1978) (reading headnotes from appellate cases improper). Corrections. Trial court's instruction regarding special damages was proper despite fact that plaintiff had not pled issue because defendant had raised it at trial. Mazurek v. Home Depot, 303 A.D.2d 960, 757 N.Y.S.2d 425 (4th Dep't 2003). Corrections. Error in admitting hearsay evidence waived in light of defendant's corroborating testimony. Rhoades v. Niagara Mohawk Power, 202 A.D.2d 762, 608 N.Y.S.2d 733 (3d Dep't 1994). WAIVER AND ESTOPPEL See also "LIABILITY INSURANCE"- Coverage. Waiver is voluntary abandonment or relinquishment of some right or advantage. No consideration required nor is prejudice or injury to other party essential. Fisher v. U.S. Casualty, 138 Misc. 307, 245 N.Y.S. 406 (N.Y. Sup. Ct. 1930). Estoppel is an admission or determination under such circumstances as to preclude subsequent contradiction or withdrawal between same parties. Matter of Mesa's Estate, 172 A.D. 467, 159 N.Y.S. 59 (1st Dep't 1916), aff'd, Matter of Hernandez, 219 N.Y. 566, 114 N.E. 1069 (1916). Waiver is an intentional relinquishment of a right that is predicated upon full knowledge of all facts upon which the existence of the right depends. S. & E. Motor Hire v. New York Indem., 255 N.Y. 69, 174 N.E. 65 (1930). Accident Insurance. Insurer by accepting renewal premiums, after interposing defense of fraud in pending action, waived such defense. United States Life Insurance Company in the City of New York v. Blumenfeld, 92 A.D.3d 487, 938 N.Y.S.2d 84 (1st Dep't 2012); Oglesby v. Massachusetts, 230 A.D. 361, 244 N.Y.S. 576 (2d Dep't 1930); see also, Security Mut. Life Ins. Co. v. Rodriquez, 65 A.D.3d 1, 880 N.Y.S.2d 619 (1st Dep't 2009) (continuing to accept premiums after having sufficient knowledge constitutes waiver). Extension of credit on prior premium payments held waiver of requirement of accident policy that renewal premiums be paid in advance. Kadelburg v. Hartford, 223 A.D. 169, 227 N.Y.S. 619 (1st Dep't 1928), aff'd, 248 N.Y. 654, 162 N.E. 563 (1928). Failure to furnish forms. Simson v. Commercial Travelers Mut. Acc. Ass'n of Am., 263 A.D. 297, 32

N.Y.S.2d 615 (1st Dep't 1942), aff'd, 289 N.Y. 700, 45 N.E.2d 457 (1942). Disability. Payments erroneously made and premiums erroneously waived, not recoverable. Standard v. Equitable Life Assur. Soc'y of U.S., 274 N.Y. 519, 10 N.E.2d 529 (1937). Waiver of Premiums after Disability. Luftig v. Travelers, 253 A.D. 538, 2 N.Y.S.2d 904 (1st Dep't 1938), aff'd, 279 N.Y. 725, 18 N.E.2d 680 (1939). Payments of benefits for 6 years with knowledge of insured's physical condition constitutes estoppel. Lieberman v. Equitable Life Assur. Soc'y of U.S., 168 Misc. 259, 5 N.Y.S.2d 777 (N.Y. App. Term 1938). Fire Insurance. Retaining proofs of loss without objection estopped company from asserting they were insufficient. Titus v. Glens Falls, 81 N.Y. 410 (1880). But does not constitute waiver of breach of condition invalidating policy, unknown to insurer. Englander v. Springfield, 232 A.D. 463, 251 N.Y.S. 298 (3d Dep't 1931). By agent, Bennett v. Commercial Union Assur. Co., 251 A.D. 776, 295 N.Y.S. 658 (3d Dep't 1937); see also Bondine v. Exchange Fire Ins. Co., 6 Sickels 117, 51 N.Y. 117 (1872) (An agent's or his employees can constitutes, waiver by or estoppel against, the insurer). Liability Insurance. Insurer undertaking and/or continuing defense of action, with full knowledge of violation of policy condition will be held to have waived breach. See Gerka v. Fidelity & Cas. Co., 251 N.Y. 51, 167 N.E. 169 (1929); New York Cent. Mut. Fire Ins. Co. v. Hildreth, 40 A.D.3d 602, 835 N.Y.S.2d 409 (2d Dep't 2007) (reservation of right letter may be used to rebut carrier waived, however, if issued more than one year after obtaining knowledge of settlement and continued to defend it waived its right to disclaim duty to indemnify). No waiver where insurer undertook defense when had no knowledge of the facts giving rise to waiver. S. & E. Motor Hire v. New York Indem., 255 N.Y. 69, 174 N.E. 65 (1930) (at time of undertaking had no knowledge of the chauffeur's age). Insurer by failing to act promptly in asserting defense of failure of co-operation by insolvent insured may waive right to assert that defense in action by injured party against insurer. Ohrbach v. Preferred, 227 A.D. 311, 237 N.Y.S. 494 (1st Dep't 1929). Insurer's disclaimer of liability waived requirement for immediate written notice of claim. Shapiro v. Employers Liab. Assur. Corp., 139 Misc. 454, 248 N.Y.S. 587 (N.Y. Sup. Ct. 1931). "The doctrine of estoppel precludes an insurance company from denying or disclaiming coverage where the proper defending party relied to its detriment on that coverage and was prejudiced by the delay of the insurance company in denying or disclaiming coverage based on the loss of the right to control its own defense" Merchants Mut. Ins. Group v. Travelers Ins. Co., 24 A.D.3d

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1179, 806 N.Y.S.2d 813 (1st Dep't 2005); Liberty Insurance Underwriters, Inc. v. Arch Insurance Company, 61 A.D.3d 482, 877 N.Y.S.2d 44 (1st Dep't 2009); Daimler Chrysler Insurance Company v. Zurich Insurance Company, 72 A.D.3d 730, 899 N.Y.S.2d 310 (2d Dep't 2010). Insurer was not estopped from rescinding property insurance policy as void ab initio, even if insurer's notice of disclaimer based on insured's misrepresentations in the policy application concerning its loss history was untimely, absent any prejudice to insured based on insurer's alleged delay in disclaiming coverage. Precision Auto Accessories Inc. v. Utica First Insurance Company, 52 A.D.3d 1198, 859 N.Y.S.2d 799 (4th Dep't 2008). Doctrine of waiver is to relieve against forfeitures, but not available to extend coverage to include losses outside terms of policy. Draper v. Oswego, 190 N.Y. 12, 82 N.E. 755 (1907); but see S. & E. Motor Line v. New York Indem., 255 N.Y. 69, 174 N.E. 65 (1930), where court indicated clause of policy excluding certain accidents could be waived; and Shichman v. Commercial Travelers Mut. Acc. Ass'n of Am., 267 A.D. 389, 46 N.Y.S.2d 32 (2d Dep't 1944), appeal denied, 267 A.D. 906, 47 N.Y.S.2d 486 (2d Dep't 1944), insurer may waive right to insist on particular defense including lack of coverage. Insurer's waiver of insured's refusal to cooperate in preparing defense, held not waiver of refusal to appear at trial. Briskman v. Glens Falls, 251 A.D. 319, 296 N.Y.S. 519 (1st Dep't 1937), appeal denied, 13 N.E.2d 478 (1938). Insurer estopped to assert non-coverage where delay in disclaimer prejudiced insured. Ashland v. Metropolitan, 269 A.D. 31, 53 N.Y.S.2d 677 (1st Dep't 1945). Estoppel does not create insurance coverage where none existed. Drew Chemical v. Fidelity & Casualty, 60 A.D.2d 552, 400 N.Y.S.2d 334 (1st Dep't 1977), aff'd, 46 N.Y.2d 851, 387 N.E.2d 226 (1979); Zappone v. Home Ins., 55 N.Y.2d 131, 432 N.E.2d 783 (1982); Schiff Assoc. v. Flack, 51 N.Y.2d 692, 417 N.E.2d 84 (1980). Proof of Loss. Right to forfeiture waived by receipt and retention of insured's reports, known to be false, under floater policy. Atlantic v. Hamilton, 251 N.Y. 98, 167 N.E. 184 (1929). Insurer, knowing of breach of warranty, required insured to furnish proof of loss and incur expense of examination. Held to have waived breach and elected to treat policy as valid. Posnick v. U.S. Fidelity, 222 A.D. 36, 225 N.Y.S. 341 (1st Dep't 1927).

WARRANTIES See "REPRESENTATIONS AND WARRANTIES"; "PRODUCTS LIABILITY." WORKERS' COMPENSATION Worker's compensation is exclusive remedy directly against employer and co-employees as to plaintiff employee injured in scope of employment. N.Y. Workers' Comp. Law § 29(6) (McKinney 2007); Moakler v. Blanco, 47 A.D.2d 614, 364 N.Y.S.2d 526 (1st Dep't 1975). Section 11 amended 1996, limits rights of third parties to implead injured plaintiff's employer, unless serious injuries, for indemnification or contribution. This statute is not retroactive. Small v. Yonkers Contracting, 242 A.D.2d 378, 662 N.Y.S.2d 67 (2d Dep't 1997); Morales v. Gross, 230 A.D.2d 7, 657 N.Y.S.2d 711 (2d Dep't 1997). The relationship between an entity and a trainee, for the purposes of Workers' Compensation law, is considered an employer ­ employee relationship when 1) the trainee is retained by an entity; 2) where the entity retained exclusive power to dismiss the trainee; 3) where the entity controlled and supervised the trainee's work; and 4) the product of the trainee's work inured to the benefit of the entity. Crotson v. Montefiore Hospital, 229 A.D.2d 330, 331, 645 N.Y.S.2d 47, 472 (1st Dep't 1996); Olson v. Nyack Hospital, 193 A.D.2d 1006, 598 N.Y.S.2d 348 (3d Dep't 1993). The Appellate Division has consistently held that the remedies provided by the Worker's Compensation Law are the exclusive remedies available to a trainee and/or employee injured during the course of her training and/or employment. Crotson, 229 A.D.2d 330, 331, 645 N.Y.S.2d 471, 472; Crotson v. Montefiore Hospital, 229 A.D.2d 330, 331, 645 N.Y.S.2d 47, 472 (1st Dep't 1996); Olson v. Nyack Hospital, 193 A.D.2d 1006, 598 N.Y.S.2d 348 (3d Dep't 1993); Galligan v. St. Vincent's Hospital, 28 A.D.2d 592, 593-594, 279 N.Y.S.2d 886 (1st Dep't, 1967); Billy v. Consolidated Machine Tool Corp., 51 N.Y.2d 152, 160, 432 N.Y.S.2d 879, 412 N.E.2d 934 (1980). Employee cannot elect to waive Workers' Compensation benefits and proceed on a tort cause of action against an employer. Olson v. Nyack Hospital, 193 A.D.2d 1006, 598 N.Y.S.2d 348 (3d Dep't 1993). Exception is that where employer commits, directs or, acting through another instigates or abets willful assault on employee, employee can sue employer directly. Wojcik v. Aluminum Co. of America, 18 Misc. 2d 740, 183 N.Y.S.2d 351 (N.Y. Sup. Ct. 1959). Intentional torts by employer. see Estupinan v. Cleanerama Drive-In, 38 A.D.2d 353, 329 N.Y.S.2d 448 (2d Dep't 1972); see also Werner v. State of New York, 79 A.D.2d 873, 434 N.Y.S.2d 548 (4th Dep't 1980), aff'd, 53 N.Y.2d 346,

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424 N.E.2d 541 (1981) (employee who takes statutory remedy is estopped from suing employer); Ralph v. Oliver, 186 A.D.2d 977, 588 N.Y.S.2d 444 (4th Dep't 1992). Illegal activity by employee does not preclude benefits, when activity is "common practice in industry," and others were not fired. Richardson v. Fiedler Roofing, 112 A.D.2d 551, 491 N.Y.S.2d 489 (3d Dep't 1985), aff'd, 67 N.Y.2d 246, 493 N.E.2d 228 (1986). Presumption that general employer continues as sole employer even when doing work for another. Bartolomeo v. Bennett Contracting, 245 N.Y. 66, 156 N.E. 98 (1927); Bird v. New York State Thruway, 8 A.D.2d 495, 188 N.Y.S.2d 788 (4th Dep't 1959) (need proof control was passed to second employer and is not just temporarily for particular work). Control is primary test to determine employee status. Braxton v. Mendelson, 233 N.Y. 122, 135 N.E. 198 (1922); McNamara v. Leipzig, 227 N.Y. 291, 125 N.E. 244 (1919); see also Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 585 N.E.2d 355, 578 N.Y.S.2d 106 (1991) (discussing special employee status); Eddy v. White, 304 A.D.2d 959, 759 N.Y.S.2d 200 (3d Dep't 2003). Whether one is an employee or an independent contractor depends on various factors, most important is right of control; and right to hire assistants; supervision; how paid; supply tools and materials. Contract that sets forth "independent" is considered with the operating

facts. Szabados v. Quinn & Coca Cola, 156 A.D.2d 186, 548 N.Y.S.2d 442 (1st Dep't 1989); Commissioner v. Lindenhurst, 101 A.D.2d 730, 475 N.Y.S.2d 42 (1st Dep't 1984); Lima v. Montauk Rug & Carpet Corp., 23 Misc. 3d 1137(A), 2009 N.Y. Slip Op. 51174(U) (NY Sup. 2009). Usually question of fact for jury. Matter of Charles, 66 N.Y.2d 516, 488 N.E.2d 1223 (1985); Sorrenti v. The Go, 156 A.D.2d 243, 548 N.Y.S.2d 503 (1st Dep't 1989). Lien. N.Y. Workers' Comp. Law § 29(1) creates lien for compensation carrier as to benefits paid against separate third-party recoveries by employee as plaintiff. No lien for Workers Compensation insurer because these benefits were in lieu of No-Fault Auto, first party benefits. Plaintiff attorney fees on recovery of lien amount. N.Y. Workers' Comp. Law § 29(1). Lien for workers' compensation benefits in settlement is to be reduced by present value of future payments and injured employee plaintiffs expenses of litigation and trial judge has discretion to decide equitable sharing of the settlement. Kelly v. State Ins. Fund, 60 N.Y.2d 131, 456 N.E.2d 791 (1983); see also Bissell v. Town of Amherst, 18 N.Y.3d 697, 2012 WL 995264 (2012); Burns III v. Varriale, 9 N.Y.3d 207, 879 N.E.2d 140, 849 N.Y.S.2d 1 (2007); Scheer v. NYS Ins. Fund., 22 Misc. 3d 239, 865 N.Y.S.2d 865 (Erie County 2008).

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