CONGRATULATIONS TO MARK YAGERMAN (8/13)
AV Preemient for Twenty Years
SMITH MAZURE WINS A DEFENSE VERDICT FOR THE NEW YORK CITY TRANSIT AUTHORITY: Pavlina Kleyman v. New York City Transit Authority (8/24/11)
DEFENSE VERDICT FOR SMITH MAZURE (Mark S. Yagerman) (2/16/11)
Miller v. New York City Transit Authority
MARK YAGERMAN JOINS THE COUNCIL ON LITIGATION MANAGEMENT (1/3/11)
SPECIAL EDITION COURT OF APPEALS DECISION Cunha v City of New York (6/9/09)
Article 16 This is a case we originally reported on back in November 2007 after the Smith Mazure appellate team achieved a reversal of the lower court's trial decision. Our client was found to be only vicariously liable to the Plaintiff (no active negligence). The third party defendant was found to be 40 percent liable by the Jury. As such, the Court attempted to hold us in for 60 percent. This appeal was taken as there was no other entity whose percentage should have been considered in terms of active negligence. It was our position that the jury should not have been permitted to allocate fault and 100 percent of the liability should have been assigned to the third party defendant. The Appellate Court agreed and set forth that we were entitled to a complete pass through to the third party defendant. Since then the New York State Court Of Appeals decided to take a look at this matter. Unanimously affirming the Appellate Division, the court noted that appellant's argument, that the 60 percent unidentified allocation should be utililzed to limit our recovery, was without merit. This was due to the fact that the only parties who conceivable could hold that 60 percent were either the employer ( not permitted to be part of the allocation under Article 16), the plaintiff himself (also not permitted to be part of the allocation under Article 16) or our client, who the Court ruled had already been found to not be negligent and more over, any issue of our negligence was waived by counsel for appellant at trial. As no other entity could reasonable and with legitimacy, be found to be negligent then appellant should have been found to be 100 percent negligent, not 40 percent. Full reimbursement of all indemnity paid with interest and defense costs are now to be paid to our partner United America Insurance Company. We thank them for their confidence in us by holding the course. Good things do come to those who wait.
New York City Tr. Auth. v Clarendon Natl. Ins. Co (3/12/09)
This Smith Mazure decision was interesting enough to break our rule of avoiding lower court decisions. We are dealing with a January 1999 incident and an April 2000 lawsuit. The underlying plaintiff was an employee of the insurer's named insured. A tender of coverage as an additional insured, was made in June 2000 to the insurer. No response was ever received. The underlying action was dismissed in 2003. A Declaratory Judgment action was taken against the insurer in 2008. The insurer moved by pre-answer motion for a dismissal of the action based upon statute of limitation, setting forth that the 6 year period to commence the action ran from the date of tender. The additional insured argued that as no denial was ever issued, the action never accrued or minimally didn't accrue until the opportunity to defend no longer existed. The Court agreed with this latter argument following the rule that a cause of action based on an insurer's alleged breach of a contractual duty to defend accrues only when the underlying litigation brought against the insured has been finally terminated and the insurer can no longer defend the insured even if it chooses to do so. The court then utilized 2003 as the earliest date finding the action was timely. The insurer also attempted to raise a collateral estoppel argument setting forth that the prior claim against its named insured for attorney fees was collateral estoppel to this latter claim for attorney fees as an additional insured. The court correctly noted that the basis of the claims were entirely distinct, one being a claim on an indemnity provision against the contractor and the other being a claim for coverage, against an insurer, as an insured under a policy of insurance, and a such no collateral estoppel existed.
ANNA A. HIGGINS, ESQ., wins appeal on Purcell v York Bldg. Maintenance Corp. (12/2/08)
Our client was a janitorial service provider. Plaintiff, en route to the ladies room, slipped and fell, fracturing her eblow. No surgery. Plaintiff claimed that on the date of the accident, the floor appeared "slippery" and "shinier than usual" and "over-waxed". The floor was a brand new hardwood floor, a month old. Plaintiff testified that prior to the accident, she never observed anyone waxing the floor and denied any residue, such as wax or any other substance on the floor or on her clothes after her accident. Plaintiff testified that subsequent to the accident, the day after, she observed the placement of signs warning that the floors were slippery and carpet. Defendant moved for summary judgment arguing that Plaintiff's testimony that she observed that the floor on the date of her accident appeared "shinier than usual" and over waxed, alone, could not constitute evidence of over-waxing. The trial court denied summary judgment arguing that plaintiff's testimony of observing the placement of a sign the day after her accident, can be used to demonstrate the existence of a dangerous condition, i.e. over-waxing on the date of her accident. The appellate court unanimously reversed and dismissed the complaint holding that Plaintiff's testimony of observing the floor to be "shinier than usual" and "overwaxed," without anything more, is insufficient to raise a triale issue of fact that Defendant over-waxed the floor and created a dangerous condition. Further, Plaintiff's testimony of a subsequent remedial act, i.e. the placement of signs, do not and cannot, be used to demonstrate the existence of a dangerous condition on the date of Plaintiff's accident.
DEFENSE VERDICT FOR SMITH MAZURE: Grinberg v. NYCTA (7/2/08)
Mark S. Yagerman, Esq. obtained a defense verdict in Kings County representing The New York City Transit Authority.
LEGISLATIVE UPDATE: SPECIAL EDITION GOVERNOR SIGNS NEW YORK LATE NOTICE LEGISLATION (7/23/08)
For many its the end of an era. Today, New York Governor David Patterson signed into law legislation that ends New York's status as a "no prejudice jurisdiction". Insurers will be prohibited from denying coverage, to an insured, based upon late notice, unless the insurer has been prejudiced. Exceptions exist, an example being claims made policies. The key for future litigation will be on the burden of proof as to the existence of prejudice. The burden of proof concerning prejudice will be on the insurer if the notice is provided within two years of the time required, or on the insured if the notice is provided more than two years after the time required. Another issue will be the definition of prejudice which is defined to be a material impairment of the insurer's ability to investigate or defend the claim. Interestingly, prejudice will be conclusively presumed if the insured's liability has been established after a court or arbitration proceeding or if the insured has settled the claim before providing notice to the insurer. Although overlooked an additional provision in the new law will now permit claimants in suits arising out of death or personal injury to maintain an action directly against an insurer where the insurer denies coverage based upon late notice. This was previously prohibited until a judgment was obtained against the insured. Any way you look at it, the new law will create major changes in the handling of claims and late notice litigation. It's important to note that it is still imperative to provide a timely disclaimer as otherwise a waiver of a potentially viable defense to coverage will occur. This is notwithstanding that such a defense just became much more difficult to support.
Copyright © 2007 Smith Mazure Director Wilkins Young & Yagerman, P.C.