Commercial Division Blog: Current Developments in the Commercial Divisions of the New York State Courts

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December 29, 2021 Second Department Distinguishes Treatment of Claims and Damages against Insurance Company in Breach of Duty to Defend Case
On November 17, 2021, in East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal, 2021 NY Slip Op 0634, the Second Department reversed the decision of Justice Stephen A. Bucaria that dismissed a claim arising from an insurer’s bad-faith denial of coverage and reduced by 65% damages relating to a breach of the duty to defend. The Court explained that in the context of insurance liability litigation, at the pretrial stage courts are reluctant to dismiss complaints alleging bad faith and damages for breach of the duty to defend, unlike in a fee shifting case, are presumed reasonable: Read More
October 29, 2021 Third-Party Action Against Insurer Should Be Tried Separately From Underlying Liability Action
On March 30, 2021, Justice Grays of the Queens County Commercial Division issued a decision in Board of Mgrs. of the 44-15 Purves St. Condominium v 44-15 Purves St., LLC, 2021 Slip Op 32048 holding that an action against an insurer for denying an insurance claim should be severed pursuant to CPLR 603 from the underlying action to determine liability. Read More
July 4, 2018 Insurance Law 3105 Does Not Relieve RMBS Insurer of Obligation to Plead All Elements of Common Law Fraud Claim
On June 27, 2018, the Court of Appeals issued a decision in Ambac Assurance Corp. v. Countrywide Hom… Read More
February 23, 2018 All Risk Insurance Policy Did Not Cover Loss From Returning Property to Its Rightful Owner
On February 13, 2018, the First Department issued a decision in Dae Assoc., LLC v. AXA Art Ins. Corp… Read More
January 16, 2018 Schlam Stone & Dolan LLP Launches Insurance Coverage Blog
Schlam Stone & Dolan LLP is pleased to announce the launch of a new Insurance Coverage Blog. Edited… Read More
January 7, 2018 Insurance Law Section 3420 Applies Only to Policies Covering Both Insureds and Risks in New York
On November 20, 2017, the Court of Appeals issued a decision in Carlson v. American International Gr… Read More
December 18, 2017 Court Declines to "Create Insurance Coverage Where None Exists" Based on Waiver Argument
On November 14, 2017, the First Department issued a decision in Illinois Union Insurance Co. v. Gran… Read More
November 27, 2017 No Claim Against Insurer for Breach of the Covenant of Good Faith and Fair Dealing Absent “Foreseeable Consequential Damages”
On October 19, 2017, Justice Scarpulla of the New York County Commercial Division issued a decision … Read More
October 14, 2017 Construction-Related Claims Barred by "No Damages for Delay" Clause
On September 28, 2017, Justice Knipel of the Kings County Commercial Division issued a decision in P… Read More
October 2, 2017 Commercial General Liability Insurance Policy Did Not Cover Breach of Contract Claim
On September 27, 2017, the Second Department issued a decision in J.W. Mays, Inc. v. Liberty Mutual … Read More
September 28, 2017 Unreasonably Lengthy and Frivolous Investigation Sufficient Basis for Breach of Implied Covenant of Good Faith and Fair Dealing
On September 15, 2017, Justice Kornreich of the New York County Commercial Division issued a decisio… Read More
August 20, 2017 Insurer Owed Pre-Judgment Interest From Date of Wrongful Disclaimer of Coverage
On August 7, 2017, Justice Ramos of the New York County Commercial Division issued a decision in J.P… Read More
August 9, 2017 Insured Not Entitled to Indemnification Because It Settled Claims Without Insurer's Permission
On August 8, 2017, the First Department issued a decision in Bovis Lend Lease (LMB), Inc. v. Arch In… Read More
July 19, 2017 Plaintiff's Failure to Read Policy No Bar to Claim for Failure to Obtain Proper Insurance
On July 11, 2017, Justice Knipel of the Kings County Commercial Division issued a decision in 386 3r… Read More
July 9, 2017 Insurers' Repudiation of Liability Relieves Insured of Obligation to Cooperate
On June 27, 2017, the First Department issued a decision in J.P. Morgan Securities Inc. v. Vigilant … Read More
June 16, 2017 Insurer Denied Summary Judgment for Failure to Show Material Misrepresentations by Insured
On June 7, 2017, the Second Department issued a decision in Indian Harbor Insurance Co. v SP&K Const… Read More
June 14, 2017 Insurance Policy Covering Injury Caused by Insured Requires Proximate Causation
On June 6, 2017, the Court of Appeals issued a decision in Burlington Insurance Co. v. NYC Transit A… Read More
June 13, 2017 Whether Subsequent Agreement Between the Insurance Company and the Insured Affected Arbitrability of Dispute Is A Question for the Arbitrator
On June 1, 2017, the Court of Appeals issued a decision in Town of Amherst v. Granite State Insuranc… Read More
May 22, 2017 Insurance Law § 3105 Does Not Dispense with Requirement of Proving Reliance and Loss Causation
On May 16, 2017, the First Department issued a decision in Ambac Assurance Corp. v. Countrywide Home… Read More
April 26, 2017 Insurer Required to Provide Coverage Because of Flaws in its Letter Disclaiming Coverage
On April 19, 2017, the Second Department issued a decision in Unified Window Systems, Inc. v. Endura… Read More
April 25, 2017 Communications With Insurance Brokers Not Privileged
On April 17, 2017, Justice Bransten of the New York County Commercial Division issued a decision in … Read More
April 18, 2017 Extrinsic Evidence May be Admitted Prior to Exclusion Being Strictly Construed Against Insurer
On April 13, 2017, the First Department issued a decision in Heartland Brewery, Inc. v. Nova Casualt… Read More
March 18, 2017 Insurer Entitled to Judgment as a Matter of Law Based on Plaintiff's Misrepresentations
On March 1, 2017, the Second Department issued a decision in Estate of Gen Yee Chu v. Otsego Mutual … Read More
March 13, 2017 Whether Insurer Waived Limitations Period By Seeking Information Creates Question of Fact
On March 2, 2017, Justice Singh of the New York County Commercial Division issued a decision in Anth… Read More
February 27, 2017 Equitable Subrogation Not Available Against Third Party Whose Liability Arises By Contract; Case Remanded For Consideration of Contractual Subrogation Claim
On January 17, 2017, the First Department issued a decision in Millennium Holdings LLC v. Glidden Co… Read More
February 16, 2017 Broad Coverage Exclusion Does Not Render Insurance Policy "Illusory" Where Some Coverage Is Afforded
On February 14, 2017, the Court of Appeals issued a decision in Lend Lease (US) Construction LMB Inc… Read More
February 9, 2017 Court of Appeals Accepts Certified Question on Interpretation of Reinsurance Contracts
On January 10, 2017, the Court of Appeals accepted a certified question from the Second Circuit in G… Read More
December 24, 2016 Insurance Law § 3404 Does Not Bar Policy Condition That Insured Building Have Sprinklers
On December 9, 2016, Justice Oing of the New York County Commercial Division issued a decision in Il… Read More
December 12, 2016 Claim for Material Misrepresentation in the Inducement of an Insurance Contract Does Not Require Submission of a Written Application for Insurance
On November 29, 2016, the First Department issued a decision in CIFG Assur. N. Am., Inc. v. J.P. Mor… Read More
November 28, 2016 Insurance Law § 3420 Does Not Apply to Investment Losses
On November 15, 2016, Justice Singh of the New York County Commercial Division issued a decision in … Read More
November 1, 2016 Additional Insured Endorsement Only Covered Parties That General Contractor Was Required By Written Contract to Name As Additional Insureds
On October 6, 2016, the First Department issued a decision in Three Boroughs, LLC v. Endurance Ameri… Read More
October 10, 2016 Insured Not Entitled To Recover Attorneys’ Fees in Coverage Action
On September 30, 2016, the Fourth Department issued a decision in Zelasko Constr., Inc. v. Merchants… Read More
October 4, 2016 Additional Insured Clause Covers Only Those With Written Contracts Directly With Named Insured
On September 15, 2016, the First Department issued a decision in Gilbane Building Co./TDX Constructi… Read More
September 30, 2016 Plaintiff Fails to Show That it Was Additional Insured
On September 19, 2016, Justice Marks of the New York County Commercial Division issued a decision in… Read More
September 16, 2016 Late Notice Defense Not Waived as a Matter of Law by Failing to Include it in Disclaimer Letters
On September 15, 2016, the Court of Appeals issued a decision in Estee Lauder Inc. v. OneBeacon Insu… Read More
September 6, 2016 Where Loss From Environmental Damage Is Subject to Pro Rata Allocation, Insured Is Responsible For Periods When Insurance Was Unavailable
On September 1, 2016, the First Department issued a decision in Keyspan Gas East Corp. v. Munich Rei… Read More
August 24, 2016 “Made Whole Rule,” Which Limits An Insurer’s Recovery in Subrogation Claim, Does Not Apply to Salvage Recovery
On August 8, 2016, Justice Oing of the New York County Commercial Division issued a decision in Pote… Read More
August 23, 2016 Claims Against Insurer Dismissed Where Allegations Fail to Tie it to Policy at Issue
On August 11, 2016, Justice Oing of the New York County Commercial Division issued a decision in Cha… Read More
July 24, 2016 Insurer's Disclaimer of Coverage Excused Insured from Obtaining Its Consent to Settlement
On July 7, 2016, Justice Ramos of the New York County Commercial Division issued a decision in J.P. … Read More
June 21, 2016 Antisubrogation Rule Does Not Apply to Non-Insured Parties
On May 5, 2015, the Court of Appeals issued a decision in Millennium Holdings LLC v. Glidden Co., 20… Read More
June 16, 2016 Law Firm’s Loss of Business During Hurricane Sandy Not Covered By Business Interruption Insurance; Claim For Coverage Arising From Computer Virus Proceeds
On April 6, 2016, Justice Oing of the New York County Commercial Division issued a decision in Borah… Read More
April 28, 2016 Cost of Structural Repairs Not Linked to Covered Damage Do Not Fall Within Property Insurance Policy’s "Blanket Ordinance or Law Coverage Endorsement"
On April 21, 2016, the First Department issued a decision in St. George Tower v. Insurance Co. of Gr… Read More
April 24, 2016 Question of Fact Whether Insurance Policy Covered Affiliates of Sole Named Insured
On March 30, 2016, Justice Kornreich of the New York County Commercial Division issued a decision in… Read More
April 13, 2016 Additional Insured Satisfied Liability Policy's Notice Requirement
On March 24, 2016, the Court of Appeals issued a decision in Spoleta Construction, LLC v. Aspen Insu… Read More
March 21, 2016 Provision Exempting Warehouse from Liability for Damage Caused By Own Negligence Unenforceable
On March 17, 2016, the First Department issued a decision in XL Specialty Insurance Co. v. Christie'… Read More
February 24, 2016 Arbitration Clause Does Not Trigger McCarran-Ferguson Reverse Preemption
On February 18, 2016, the Court of Appeals issued a decision in Matter of Monarch Consulting, Inc. v… Read More
February 17, 2016 Claims of Individual Class Members Constitute Separate “Occurrences,” Subject to Separate Deductibles Under Insurance Policy
On February 11, 2016, the Court of Appeals issued a decision in Selective Insurance Company of Ameri… Read More
February 9, 2016 Loss Damage Waiver Bars Subrogation Action
On January 21, 2016, Justice Scarpulla of the New York County Commercial Division issued a decision … Read More
December 18, 2015 No Private Right of Action Under Insurance Law When Violation Inadvertent
On December 15, 2015, the First Department issued a decision in Cilente v. Phoenix Life Insurance Co… Read More
November 24, 2015 Insurer Ordered to Provide Defense Where Consideration of Facts Outside the Complaint Suggested a "Reasonable Possibility of Coverage"
On October 1, 2015, Justice Bransten of the New York County Commercial Division issued a decision in… Read More
November 17, 2015 Policyholder's Claim For "Bad Faith Claims Handling" Dismissed As Duplicative of Breach of Contract Claim
On October 27, 2015, the First Department issued a decision in Orient Overseas Assoc. v. XL Insuranc… Read More
July 27, 2015 Court of Appeals Illustrates Application of Rules of Contract Construction
On June 25, 2015, the Court of Appeals issued a decision in Universal American Corp. v. National Uni… Read More
July 9, 2015 Insurer's Obligation to Pay for Defense Until Final Judgment Ends When Beneficiary is Sentenced
On June 23, 2015, the First Department issued a decision in Dupree v. Scottsdale Ins. Co., 2015 NY S… Read More
July 6, 2015 Court of Appeals Accepts Certified Questions from Delaware Supreme Court Regarding Allocation of Losses From Asbestos Injuries
On June 25, 2015, the Court of Appeals accepted certified questions from the Delaware Supreme Court … Read More
June 3, 2015 Plaintiffs Whose Insurance Claim Was Paid Not Entitled to Proceeds of Subrogation Action
On May 26, 2015, the First Department issued a decision in Ehrlich v. American Intl. Group, 2015 NY … Read More
May 19, 2015 Qui Tam Under False Claims Act Triggers Professional Liability Policy Exclusion For Claims "Brought By Or On Behalf Of" The Federal Government
On April 30, 2015, the First Department issued a decision in Certain Underwriters at Lloyd’s v. Hu… Read More
January 30, 2015 Disclaimer of Coverage Not in Bad Faith When No Intent to Delay and Arguable Basis for Denial Existed
On January 22, 2015, the First Department issued a decision in S Bros. Inc. v. Leading Insurance Ser… Read More
January 28, 2015 First Department Analyzes "Manifest Intent" Requirement in Fidelity Bond
On January 22, 2015, the First Department issued a decision in Keybank N.A. v. National Union Fire I… Read More
January 25, 2015 Insured Not Entitled to Coverage When it Fails to Set Fire Alarm as Required by Policy
On January 21, 2015, the Second Department issued a decision in Triple Diamond Café, Inc. v. Those … Read More
January 23, 2015 SEC Administrative Order Insufficient to Establish Dishonesty Triggering Insurance Policy Dishonest Acts Exclusion
On January 15, 2015, the First Department issued a decision in J.P. Morgan Securities Inc. v. Vigila… Read More
January 7, 2015 Insured Entitled to Fees After Prevailing on Claim for Declaratory Judgment
On December 30, 2014, the First Department issued a decision in American Home Assurance Co. v. Port … Read More
December 22, 2014 No Fault Insurance Arbitration Award Vacated As Arbitrary and Capricious
On December 4, 2014, Justice Bransten of the New York County Commercial Division issued a decision i… Read More
December 16, 2014 Notice of Claim Sent To Insured's Broker Does Not Constitute Notice To Insurance Carrier
On November 24, 2014, the Court of Appeals issued a decision in Strauss Painting, Inc. v. Mt. Hawley… Read More
December 5, 2014 Insurance Company Did Not Satisfy Obligation To Give "Written Notice to the Insured" of Disclaimer of Liability By Sending Notice to Another Carrier for The Insured
On November 24, 2014, the Court of Appeals issued a decision in Sierra v. 4401 Sunset Park, LLC, 201… Read More
October 30, 2014 Court Applies Pro Rata "Time on the Risk" Method to Allocate Loss From Environmental Damage Among Liability Insurance Policies
On October 14, 2014, Justice Scarpulla of the New York County Commercial Division issued a decision … Read More
October 28, 2014 No Claim for Breach of Covenant of Good Faith and Fair Dealing When Claim Has Same Basis as Breach of Contract Claim
On October 21, 2014, Justice Whelan of the Suffolk County Commercial Division issued a decision in J… Read More
September 30, 2014 Reinsurer Entitled to Discovery on Reasonableness of Insurer's Settlement and Allocation Decisions
On September 15, 2014, Justice Scarpulla of the New York County Commercial Division issued a decisio… Read More
September 22, 2014 Federal Arbitration Act Does Not Apply to California Insurance Law Requiring Arbitration Agreements to be Filed With State
On September 11, 2014, the First Department issued a decision in Matter of Monarch Consulting, Inc. … Read More
September 6, 2014 Insured Must Act Promptly to get Advancement of Defense Costs; Past Defense Costs Need not be Paid until any Coverage Litigation is Resolved
On August 27, 2014, Justice Kornreich of the New York County Commercial Division issued a decision i… Read More
August 4, 2014 Insured Demanding Reinstatement Must Pay Premiums on Improperly Terminated Life Insurance Policy
On July 25, 2014, Justice Schmidt of the Kings County Commercial Division issued a decision in Ruben… Read More
July 22, 2014 Policy Exclusions Bar Coverage For Banks Sued By Investors Who Lost Funds In Madoff Ponzi Scheme
On June 24, 2014, the First Department issued a decision in Associated Community Bancorp, Inc. v. St… Read More
July 18, 2014 Absent Precise Language To the Contrary, Limitations Period In Insurance Policy Runs From Date Coverage Was Denied, Not Date of Underlying Loss
On June 30, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in… Read More
June 30, 2014 Insurance Policy Flood Damage Cap Applies to All Flood Damage, Even Categories of Damage With a Separate, Higher Cap
On June 27, 2014, Justice Kornreich of the New York County Commercial Division issued a decision in … Read More
June 30, 2014 Litigation Trustee Denied Intervention in Lawsuit Between Insureds and Insurers
On June 18, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in… Read More
June 13, 2014 Liability Insurer did not Waive Defense of Late Notice by Failing to Disclaim Coverage on this Ground "As Soon as Reasonably Possible"
On June 10, 2014, the Court of Appeals issued a decision in KeySpan Gas Electric Corp. v. Munich Rei… Read More
June 9, 2014 Court of Appeals Grants Leave To Appeal In Case of First Impression Regarding Interpretation of Computer System Fraud Insurance Policy
On June 5, 2014, the New York Court of Appeals granted the plaintiff’s motion for leave to appeal … Read More
May 21, 2014 Insurance Policy's Criminal Acts Exclusion Applies To Claims Arising From Criminal Acts of Employee Of Which The Company Is Unaware
On May 8, 2014, Justice Ramos of the New York County Commercial Division issued a decision in Aptuit… Read More
May 12, 2014 Court Recognizes Claim for Negligence/Insurer's Errors and Omissions
On May 1, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in N… Read More
April 18, 2014 Insured Not Entitled To Attorneys' Fee Incurred In Coverage Action
On April 8, 2014, Justice Kornreich of the New York County Commercial Division issued a decision in … Read More
April 16, 2014 Insurance Broker Owes Non-Contractual Duty to Other Brokers
On April 8, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in… Read More
March 18, 2014 Defaulting Defendant’s Insurer Has Standing To Intervene
On March 6, 2014, Justice Friedman of the New York County Commercial Division issued a decision in C… Read More
March 14, 2014 For Insurance Purposes, Cash is "In Transit" Even While it is Being Held in the Carrier's Vault
On March 11, 2014, the First Department issued a decision in CashZone Check Cashing Corp. v. Vigilan… Read More
March 13, 2014 No Separate Cause of Action For Insurance Carrier's Bad Faith Claims Handling
On February 26, 2014, Justice Schweitzer of the New York County Commercial Division issued a decisio… Read More
March 10, 2014 Findings In SEC and NYSE Administrative Orders Do Not Trigger Dishonest Act Exclusion Under Professional Liability Policy
On February 28, 2014, Justice Ramos of the New York County Commercial Division issued a decision in … Read More
March 9, 2014 Second Department Finds Private Right of Action Under Prompt Pay Law
On March 5, 2014, the Second Department issued a decision in Maimonides Medical Center v. First Unit… Read More
March 3, 2014 Court of Appeals Rules That Issues of Fact Preclude Dismissal On Summary Judgment of Negligence Claim Against Insurance Broker
On February 25, 2014, the Court of Appeals issued a decision in Voss v. Netherlands Insurance Co., 2… Read More
February 26, 2014 Court of Appeals Rules On Reargument That Liability Insurer’s Breach of Duty To Defend Did Not Preclude The Insurer From Relying On Policy Exclusions To Avoid Duty To Indemnify
On February 18, 2014, the Court of Appeals issued a decision in K2 Investment Group, LLC v. American… Read More
January 31, 2014 Appellate Divisions Announce Differing Choice-of-Law Analyses for Insurance Claims
On January 28, 2014, the First Department issued a decision in Davis & Partners, LLC v. QBE Ins.… Read More
December 19, 2013 Post-Judgment Interest Constitutes Covered Damages Under Excess Liability Policy
On December 17, 2013, the Court of Appeals issued a decision in Herzl Ragins, et al. v. Hospitals In… Read More
December 16, 2013 Insurance Policy Covering Multi-State Risks Governed by Law of State Where Insured is Domiciled
On December 11, 2013, the Second Department issued a decision in QBE Ins. Corp. v. Adjo Contracting … Read More
November 1, 2013 Insurance Law's Notice Requirements Strictly Construed
On October 23, 2013, Justice Ramos of the New York County Commercial Division issued a decision in S… Read More