Court of Appeals Finds That Sufficient Notice of Claim Was Provided to Insurer

In Spoleta Construction, LLC v. Aspen Insurance UK Limited, Spoleta had entered into a contract with Hub-Langie Paving, pursuant to which Hub-Langie was contractually obligated to defend and indemnify Spoleta and to procure Commercial General Liability insurance naming Spoleta as an additional insured for any claims of bodily injury. An employee of Hub-Langie was injured performing work under the contract. As such, Spoleta's insurer notified Hub-Langie that Spoleta would be seeking defense and indemnification from Hub-Langie and also requesting that Hub-Langie "place [its] insurance carrier on notice of this claim." This correspondence, along with a notice of occurrence claim form identifying the injured employee and describing his injury, was forwarded to Aspen. 

After the employee commenced an action against Spoleta, Aspen was again notified of the claim. Counsel for Spoleta specifically indicated that Spoleta was to be named an additional insured on Hub-Langie's policy and a certificate of insurance identifying Spoleta as an additional insured was included with the correspondence. Aspen denied coverage on the basis of late notice, arguing that Spoleta's first notice of claim was a claim for contractual defense and indemnification, not a claim for additional insured coverage.

Thereafter, Spoleta commenced a declaratory judgment action against Aspen.  In response, Aspen moved, pre-answer, to dismiss the declaratory complaint. The lower court granted the motion, but the Appellate Division reversed and reinstated Spoleta's complaint. The Appellate Division then granted leave to appeal to the Court of Appeals on the question of whether Spoleta's initial tender constituted proper notice of claim for additional insured coverage under the Aspen policy.

The Court of Appeals affirmed, finding that the Aspen policy requirements for notice had been met by the initial correspondence.  More specifically, Aspen was made aware of how, when and where the occurrence took place and the nature and location of the alleged injuries.  And, the letter did not specifically state the basis for which Spoleta was seeking defense and indemnification pursuant to its contract with Hub-Langie, i.e. Spoleta did not specifically identify either the contractual indemnity provision or the insurance procurement provision in the contract. Therefore, the Court of Appeals held that the Appellate Division had properly reinstated Spoleta's complaint.  

First Department Holds Labor Law 241(6) Violated Where Tool Used By Plaintiff Could Never Comply With Industrial Code Requirements

In Kelmendi v. Hudson Street, LLC, the plaintiff was using a hand-held reciprocating saw -- a saw with an 8-inch blade protruding from the front that operates by moving back and forth, rather than in a circular motion -- when the blade snapped and struck plaintiff in the neck. The defendants established that, by the very function and intended use of the reciprocating saw, it was impossible for any guards to be placed around the blade. Nevertheless, the saw qualified as a "portable power-driven, hand-operated saw" that required a guard above the base plate and a movable guard below the base plate, under Industrial Code § 23-1.12(c)(1).  As such, the First Department held that the Code had been violated.

The Court further noted, quoting from the lower court's decision, that to accept defendant's argument that the Code should not apply because it was impossible to have a guard on the blade as required by the Code "would be to ineffectualize the regulation because employers, owners and contractors would only use tools that would minimize their liability." 

In essence, the lower court and the First Department presumed that, if reciprocating saws were exempted from the Code then employers, owners and contractors would require workers to use these saws in place of table saws and circular saws, etc., regardless of how inefficient a reciprocating saw might be for the assigned task, simply to insulate themselves from potential liability.     

Second Department Finds Question of Fact Raised by Plaintiff as to Departure Sufficient, Where Defendants' Expert Failed to Address Proximate Cause

In Gallen v. County of Rockland, the defendants moved for summary judgment relying, in part, on an affidavit from their expert who attested that the defendant doctor did not depart from the standard of care in his suicide-assessment of plaintiff's decedent.  The defense expert did not address proximate cause. The Second Department therefore found that, in order to defeat the defendants' motion, the plaintiff's expert needed only to address the standard of care.  The Court further found that the plaintiff's expert raised a question of as to whether the doctor's failure to obtain the decedent's medical records and inadequate suicide assessment rendered the defendant's treatment decision "something less than a professional medical determination," which mandated the denial of defendants' motion.   

First Department Holds That Contractor Had No Duty to Warn City of Dangerous Condition Unrelated to Contractor's Work

In Trawally v. City of New York, Welsbach Electrical Corp. was under an obligation to maintain the City's traffic signals.  Power Optech was under an obligation to maintain the City's streetlights. Although Welsbach had apparently worked on a traffic signal attached to a "leaning streetlight," the First Department held that Welsbach did not owe a duty to warn either the City or Power Optech of the condition of the streetlight, "as it was unrelated to the work for which [Welsbach] had contracted."

First Department Upholds Excess Insurer's Late Notice Disclaimer

In Martin Assoc. Inc. v. Illinois National Ins. Co., Martin had disclosed information to his attorneys and insurance broker which suggested a reasonable possibility that Martin's excess insurance might be implicated in an underlying personal injury action. Martin failed, however, to provide this information to Illinois National, Martin's excess insurer. Illinois National disclaimed coverage 26 days after Martin finally provided notice.  The First Department found that the disclaimer was timely as a matter of law, and also that Martin could not rely on notice provided by his co-defendants in the underlying action because, at all times, Martin's interests were adverse to the co-defendants.

First Department Finds That Worker Was A Labor Law "Employee" Although His Employer Was Not Paid For Work

In Lopez v. La Fonda Boricua, Inc., the First Department found that the injured plaintiff was an "employee" within the meaning of Labor Law § 240(1) despite the fact that his employer had agreed to perform work at the defendant-restaurant gratuitously.