Congratulations to our Appellate and Motions Department led by Andrea Ferrucci Esq. for another impressive year with remarkable results. Highlights from the Appellate Division in 2014 include:

Sciafla v. Roman Catholic Church of Our Lady of Hope 116 A.D.3d 690, N.Y.A.D. 2 Dept.,2014. Keri A. Wehrheim Esq. on the brief.

Bajada v. Spector 119 A.D.3d 622, N.Y.A.D. 2 Dept. 2014. Andrea E. Ferrucci Esq. on the brief.

Gomez v. Our Lady of Fatima Church 117 A.D.3d 987 N.Y.A.D. 2 Dept.2014. Keri A. Wehrheim Esq. on the brief.

Conrad v. Alicea 117 A.D.3d 560, N.Y.A.D. 1 Dept. 2014. Andrea E. Ferrucci Esq. on the brief.

Desthers v. Espinal 121 A.D.3d 1035 N.Y.A.D. 2 Dept.2014. Andrea E. Ferrucci Esq. on the brief.

Joseph v. Simmons 114 A.D.3d 644, N.Y.A.D. 2 Dept.2014. Keri A. Wehrheim Esq. on the brief.

Joaquin v. Franco 116 A.D.3d 1009 N.Y.A.D. 2 Dept.,2014. Andrea E. Ferrucci Esq. on the brief.

Billis v. Tunjian 120 A.D.3d 1168 N.Y.A.D. 2 Dept.,2014. Andrea E. Ferrucci Esq. on the brief.
Galarza v. J.N. Eaglet Publishing Group, Inc. 117 A.D.3d 488 N.Y.A.D. 1 Dept.,2014. Andrea E. Ferrucci Esq. on the brief.

Ramirez v. Mezzacappa 121 A.D.3d 770 N.Y.A.D. 2 Dept.,2014. Keri A. Wehrheim Esq. on the brief.

Ramirez ex rel. Freytes v. Molina 114 A.D.3d 540 N.Y.A.D. 1 Dept.,2014. Andrea E. Ferrucci Esq. on the brief.

Darzimanova v. Le Clere 122 A.D.3d 421 N.Y.A.D. 1 Dept.,2014. Andrea E. Ferrucci Esq. on the brief.

Nova Soto-Bay v. Prunty 115 A.D.3d 586 N.Y.A.D. 1 Dept.,2014. Keri A. Wehrheim Esq. on the brief.

Nationwide Mut. Ins. Co. v. Joseph-Sanders 121 A.D.3d 1003 N.Y.A.D. 2 Dept.,2014. Albert Galatan Esq. on the brief.

State Farm Ins. Co. v. Walker-Pinckney 118 A.D.3d 712 N.Y.A.D. 2 Dept.,2014. Albert Galatan Esq. on the brief.

The Appellate cases above, coupled with over 100 dismissals of pending actions on Summary Judgment motions save our clients millions of dollars in exposure. Our Appellate and Motions Department is among the best in the business, and we are proud of their achievements.

Nesmith v Allstate Ins. Co. (2014 NY Slip Op 08217) decided on November 25, 2014 by the New York Court of Appeals dealt with the issue of lead paint exposure where members of different families were successively exposed to lead paint in the same apartment. In Hiraldo v Allstate Ins. Co. (5 NY3d 508 [2005]), the Court of Appeals interpreted a "non-cumulation clause" contained in a series of successively-issued liability insurance policies.

Hiraldo v Allstate Ins. involved a single child who had lived in a building for three years while three successive Allstate policies, each with a limit of $300,000, were in force. The Plaintiff claimed that the child had been exposed to lead paint continuously during the terms of all three policies, and that therefore $900,000 in coverage was available to him. The Court of Appeals rejected the argument, relying on a non-cumulation clause. The Court found the argument of the Hiraldo Plaintiffs to be inconsistent with the policy's plain statement that Allstate's liability was limited to the amount shown on the declaration page"[r]egardless of the number of . . . policies involved."

Here, the Court again rejected the argument where different families were exposed to the toxic lead paint, noting the children "were exposed to the same hazard, lead paint, in the same apartment. Perhaps they were not exposed to exactly the same conditions; but to say that the "general conditions" were not the same would deprive the word "general" of all meaning. Nesmith argues that, because the landlord made an effort to correct the problem after Young's children were exposed and before Nesmith's grandchildren moved in, the "conditions" that injured her grandchildren must have been new ones. But she makes no claim, and the record provides no basis for inferring that a new lead paint hazard had been introduced into the apartment. The only possible conclusion from this record is that the landlord's remedial efforts were not wholly successful, and that the same general conditions - the presence of lead paint - that endangered children's health continued to exist. Because Young's children and Nesmith's grandchildren were injured by exposure to the same general conditions their injuries were part of a single "accidental loss" and only one policy limit is available to the two families."

Read the decision here.

Only in the world of No-Fault litigation can he issue of timely mailing of a document launch thousands of lawsuits with an equal number of Court decisions.

The timely mailing of a claim for No Fault Benefits was addressed by the Appellate Term, First Department, on December 15, 2014 in Medcare Supply, Inc., Farmers New Century Ins. Co., 45 Misc.3d 135(A). Here, the carrier prevailed in the lower court with an affidavit from an employee indicating his familiarity in mailing procedures at the office and denying receipt of the claim. The Appellate Term reversed noting, "Although the affiant averred that there was no record of the underlying no-fault claim in his office's paper and computer files, he professed no personal knowledge of the practice and procedures put in place by defendant in connection with the handling of no-fault claims sent to its Oklahoma City office, the designated mailing address for the submission of such claims (see Westchester Med. Ctr. v. Philadelphia Indem. Ins. Co., 69 AD3d 613, 614 [2010] )."

In addition, "In any event, plaintiff, in opposition, raised a triable issue as to the mailing of the claim by producing a stamped mailing certificate tending to support its assertion that it timely mailed the no-fault claim to defendant at its designated Oklahoma City address (see LMK Psychological Servs., P.C. v. Liberty Mut. Ins. Co., 30 AD3d 727 [2006]; Badio v. Liberty Mut. Fire Ins. Co., 12 AD3d 229 [2004] )."

With No-Fault Trials now being adjourned well into 2017, is it possible the legislature or the Commission of Financial Services will revamp Regulation 68 in 2015?

See below from Testimony of The Medical Society of the State of New York Before The New York State Assembly Committee on Ways & Means and Senate Finance Committee on the Governor's Proposed Public Health Budget for State Fiscal Year 2014-2015:

"Staged automobile accidents leading to fake injuries, billing for testing or treatment which was not required or never occurred, and the criminal networks which may include various healthcare providers, insurance adjustors, attorneys, automobile repair shops, and others who promulgate such illegal behavior should and must be eradicated, with the need for legislation which will lead to effective prosecution."

Read the decision here.

Manuel Mayo was at the Metropolitan Opera on September 16, 2008, working on a ladder on the sixth floor when he fell and was injured. His accident, and subsequent lawsuit, wound up in the Court of Appeals with a decision issued on November 24, 2014 on multiple issues including timely notice of a claim. Here, the Court reiterated a long line of decisions holding that notice to the broker does not qualify as timely notice to the carrier:

"We have long held that a policyholder's timely notice to a broker does not "constitute the notice contemplated by the [insurance] policy since a broker is normally the agent of the insured and notice to the ordinary insurance broker is not notice to the liability carrier." (Security Mut. Ins. Co. of N.Y. v. Acker-Fitzsimons Corp. 31 N.Y.2d 436, 442 n. 3 [1972]; see also Hartford Fire Ins. Co. v. Baseball Off. of Commr., 236 A.D.2d 334, 654 N.Y.S.2d 21 [1st Dept 1997] [late notice was not excused even though the policyholders "instructed their broker to inform (the primary and excess insurers) about the lawsuit shortly after its commencement"], lv denied 90 N.Y.2d 803 [1997]; Gershow Recycling Corp. v. Transcontinental Ins. Co., 22 A.D.3d 460, 462, 801 N.Y.S.2d 832 [2d Dept 2005] [a policyholder's "timely notice of the action to its broker is of no consequence" and thus does not excuse the failure to comply with notice obligations under an insurance policy] ). Our decision in Mighty Midgets does not alter this fundamental principle. Distinguishing the 1979 case of Mighty Midgets, Inc. v. Centennial Ins. Co. (47 N.Y.2d 12), the Court of Appeals held, "The record here does not support the proposition that the insurer and broker had a relationship sufficiently close to suggest that service to the broker was effectively service to the insurer."

In this case, Strauss Painting, Inc. (Strauss)/ Creative Finishes, Ltd. (Creative) contracted with the Metropolitan Opera Association, Inc. (the Met) to perform work on the Met's premises. The contract required Strauss/Creative to procure three types of insurance: (1) workers' compensation insurance (paragraph [a] ); (2) owners and contractors protective liability (OCP) insurance with a combined single limit of $5 million (paragraph [b] ); and (3) comprehensive general liability (CGL) insurance, with combined coverage for property and bodily injury with a minimum single limit of $5 million, which might be met by umbrella coverage (paragraph [c] ). Neither Strauss nor Creative actually purchased an OCP policy to protect the Met.

At the time Strauss/Creative contracted with the Met, Strauss had in place a CGL policy issued by Mt. Hawley Insurance Company (Mt. Hawley) for the policy period including the accident date. The Court also held the Mt. Hawley policy would not cover the Met as an additional insured, therefore the timing of Mt. Hawley's disclaimer was irrelevant, "we do not reach and need not decide the question of whether Mt. Hawley promptly notified the Met that it was disclaiming coverage under that policy due to untimely notice (see Zappone v. Home Ins. Co., 55 N.Y.2d 131, 134 [1982] ["failure to disclaim coverage does not create coverage which (a liability) policy was not written to provide"] )."

Read the decision here.

Congratulations to Tim Jones for a defense verdict on damages on February 6th in Bronx County against two plaintiffs in the matter of Charles Seltzer & Tannika Corbett v Cassandra Eugene (310283/09).

Congratulations to Paul Duer for a defense verdict on damages on February 5th in Queens County in the matter of Kim v. Schulman (700405/11).

Congratulations to Gil Hardy for a Nassau County Supreme Court verdict on January 31th in a difficult case. On the liability phase of the case, Gooch v. Zgrinskic, (10672/10), the jury found our client only 50% at fault with facts, including a DWI conviction, against the defendant driver.

Perhaps the lowest verdict ever in Kings County?

Congratulations to Rich Brown on a January 31th verdict in Kings County, Celeste Hill v. Russell Dolecal (14932/11). The jury found our client 50% responsible and also found the plaintiff sustained a serious injury under the threshold requirement of the No-Fault law. Total damages awarded was $2,500. Our share to pay $1,250. Great job Rich-lowest verdict ever in Brooklyn, I suspect.