City and Army entered into an agreement...cont

July 26, 2015,

During the second renewal period of the Agreement, the infant Joseph Stanley II was placed into care with foster parent Anita Nurse. On June 6, 2006, while in the custody of Ms. Nurse, the infant was injured. On or about August 2006, a Notice of Claim, dated June 20, 2006, was served on the City. On December 7, 2006, a 50(h) hearing was held of plaintiff Joseph Stanley, father and natural guardian of the infant plaintiff. In January 2007, the City and Army were served with a summons and complaint in the Stanley action.

On June 21, 2007, five months after it had been served with the summons and complaint, City forwarded, by fax, a copy to Chesterfield, Army's insurer, and requested that defense counsel be assigned to defend City. In a letter dated July 24, 2007, a Chesterfield claims representative denied the City's request citing a review of the contract between the parties as the basis for the denial. The basis for the denial lacked any further specificity.

City submits that pursuant to the Agreement, Army is obligated to defend it in the Stanley personal injury action. Specifically, the City contends that the Stanley complaint alleges bodily injury arising out of Army's work or operations and is thus within the scope of the insurance coverage that Army must provide to the City pursuant to the contract. Thus the City seeks a judgment declaring that Army is obligated to defend the City in the Stanley action and requiring Army to reimburse the City for fees incurred in defending the Stanley action from June 21, 2007, to date. Alternatively, City argues it should be granted summary judgment on its breach of contract claim in that Army failed to provide it with liability insurance coverage as required by the agreement between the parties.

The Army submits that the City's motion must be denied for several reasons. Initially, Army argues that the City's motion is premature as there has been no discovery in the underlying action and thus there remain questions of fact as to the City's role in the placement and supervision of the infant plaintiff and as to whether the claim against the City in the Stanley injury action arises out of Army's operations or out of the City's own omissions and commissions. Specifically, Army contends that the claims against the City in the Stanley action are claims of independent acts of negligence by the City and are thus not within the ambit of the contract's insurance provisions as the contract limits the City's coverage as an additional insured under Army's policy to those accidents which arise out of Army's operations.

Additional arguments set forth by Army in opposition to the motion include: the City's claims for defense and breach of contact are identical to claims asserted in the underlying Stanley action; Army is not an insurer against whom declaratory relief is appropriate; City failed to comply with a condition precedent to coverage in that it failed to timely notify Army of the claim against it; that the City is not entitled to defense costs because the agreement between the parties does not provide for the defense of claims brought against the City; and that there was no breach of contract inasmuch as Army's status as a self-insurer was accepted by the City in full satisfaction of the insurance requirements of the contract. In its cross-motion for summary judgment to dismiss the complaint, Army puts forward the same arguments discussed above in its opposition to the City's motion.

The proponent of a motion for summary judgment has the burden in the first instance of submitting admissible evidence establishing its entitlement to judgment as a matter of law. Once this burden is met, the burden shifts to the opposing party to submit proof in admissible form which raises an issue of fact requiring a trial.

Plaintiff City moves for summary judgment on this accident action for a declaration. Specifically, the City seeks an order declaring and adjudging that defendant Army has a duty to defend City in the underlying Stanley action. Army argues in opposition that the subject of this dispute is not properly the subject of a declaratory judgment action because Army, as a self-insurer, is not an insurer against whom declaratory relief is appropriate. Army further argues that this essentially a claim for indemnity with defense.

Pursuant to CPLR 3001, The supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed. The statute further provides that should a court decline to render such a judgment, it must specify its reasons. Contrary to Army's position, the subject at issue here is precisely the type of justiciable controversy that a declaratory judgment resolves. Moreover, there is no special and separate rule for self-insurers regarding the scope of [a] defense obligation.


To Be Cont...

City and Army entered into an agreement

July 24, 2015,

This action was commenced by the City of New York (City) for a declaration, pursuant to CPLR 3001, that defendant the S Army (Army) has a duty to defend the City in a negligence action currently pending in the Supreme Court of Kings County. That action is entitled Joseph Stanley and Aphrodite Stanley as parents and natural guardians of Infant Plaintiff Joseph Stanley II, and Joseph Stanley and Aphrodite Stanley, Individually, v. City of New York, The S Army of Greater New York and Anita Nurse, (the Stanley action). The City now moves for summary judgment declaring that the Army is obligated to assume the City's defense in the Stanley action and requiring the Army to reimburse the City for attorneys' fees incurred in defending the Stanley action from June 21, 2007, to date. Alternatively, the City moves for summary judgment on its third cause of action for breach of contract alleging that if the court issues a determination that S Army has no duty to defend the City, then S Army will have breached its obligations to the City by failing to provide it with liability insurance coverage for S Army's operations as required by the Agreement that exists between the two. The Army opposes the City's motion on several grounds and cross-moves for summary judgment dismissing the injury complaint.

On or about May 30, 2000, the City and Army entered into an agreement for the purchase of child welfare services (hereinafter, the Agreement). Pursuant to the Agreement, Army as contractor would provide child welfare services, including the placement of children in foster homes within their communities, to the City for the period March 1, 2000 to February 28, 2003. The contract was renewed twice, once in November 2002 and again in January 2006. The last renewal extended the agreement through February 28, 2009.

With respect to insurance, the Agreement provides, in relevant part: The Contractor shall carry paid up commercial general liability insurance covering both itself and the City with a limit no lower than $1,000,000 per occurrence and with a deductible no higher than $10,000. This policy shall provide coverage of at least as broad as that provided by ISO Form CG 00-01 and shall contain no additional exclusions of any kind whatever except for those mandated by law and those expressly accepted by the Department in writing. The City's coverage thereunder shall be as additional insured, and such coverage shall be no narrower than that provided by ISO Form CG 20-26. Such policy or policies of injury insurance shall be obtained from a company, or companies, duly licensed to do business in the State of New York.

The form further provides that it is the insurer's right and duty to defend the insured in personal injury or property damage actions, but that the insurer has no duty to defend the insured in personal injury or property damage actions to which the insurance does not apply. at Section I (A)(1)(a)(2). ISO Form CG 20-26, an endorsement regarding the designation of a person or organization as an additional insured, qualifies the City as an additional insured for coverage but only with respect to liability arising out of the operations or premises of Army as the named insured. Pursuant to the Agreement, the City had the obligation of notifying the insurer as soon as practicable of any occurrence, offense or accident lawsuit which may result in a claim. See Exhibit 3 at Section IV (2)(a) and (b).

In order to meet the insurance requirements of the Agreement, Army provided the city with a copy of its certificate of liability insurance and letters from its insurance carrier, Chesterfield Insurance Agency, Inc. As indicated in the certificate of liability insurance, Army is self-insured for commercial general liability purposes with a limit of $500,000 per occurrence. Army carries additional general liability coverage through an excess/umbrella liability policy from Chesterfield Insurance Agency, Inc., with a limit of $3,000,000 per occurrence. Id. There is no deductible for either the self-insured commercial general liability insurance or the excess/umbrella liability insurance.


To Be cont....

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The plaintiffs entered into an agreement with All American Talent

July 21, 2015,

A Kings Construction Accident Lawyer said that, in an action for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiffs in an underlying personal injury action, commenced in the Supreme Court, Kings County, the plaintiffs appeal from an order of the Supreme Court, Queens County, dated May 3, 2010, which denied their motion for summary judgment on the injury complaint.

The plaintiffs entered into an agreement with All American Talent (hereinafter All American), whereby All American was to rent the auditorium and three classrooms in the plaintiff Christ the King Regional High School (hereinafter the school) for two days for a dance competition. The contract required All American to name the school as an additional insured on a liability insurance policy issued to it by the defendant.

A Kings Spinal Injury Lawyer said that, complainant allegedly was injured when she fell on a sidewalk while walking from the parking lot behind the school to the front entrance in order to attend the dance competition. Levine commenced an action against the present plaintiffs, alleging that her fall was caused by a sidewalk defect. The plaintiffs sought defense and indemnification in that action from the defendant, under an additional insured endorsement of a general liability policy issued by the defendant to All American. When the defendant denied that request, the plaintiffs commenced this action for a judgment declaring that the defendant is obligated to defend and indemnify them in the underlying personal injury action. The plaintiffs moved for summary judgment on the complaint, and the Supreme Court denied the motion. We affirm, but on a ground different from that relied upon by the Supreme Court.
The issue in this case is whether defendant is obligated to defend and indemnify the plaintiffs in an underlying personal injury.

In support of their motion, the plaintiffs argued that coverage was available under Section II, 2.e of the Commercial General Liability Coverage Form, under which, as relevant here, an "insured" is defined to include any organization to whom All American was obligated, by virtue of a written contract, to provide liability insurance, "but only with respect to liability arising out of its operations." The portion of this provision limiting coverage to liability "arising out of All American's operations" requires that there be "some causal relationship between the injury and the risk for which coverage is provided". The plaintiffs failed to demonstrate, prima facie, the existence of such a causal relationship. All American's "operations" consisted of conducting a dance competition in the school auditorium and three classrooms. Bodily injury occurring outside the leased premises, in an area which All American had no responsibility to maintain or repair, "was not a bargained-for risk". Rather, All American's "operations" at the school merely furnished the occasion for the accident, much like in Worth Constr. Co., where the fact that the named-insured subcontractor installed a staircase on which the injured plaintiff fell, thus furnishing "the situs of the accident," did not demonstrate that the accident, caused by the installation of fireproofing on the staircase by another subcontractor, arose from the named-insured subcontractor's "operations" "liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes" internal quotation marks omitted.

Since the plaintiffs failed to meet their initial burden, we need not consider the sufficiency of the papers submitted by the defendant in opposition.

Accordingly, the Supreme Court properly denied the plaintiffs' motion for summary judgment on the complaint. The court ordered that the order is affirmed, with costs.

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A Kings Construction Accident Lawyer

July 19, 2015,


A Kings Construction Accident Lawyer said that, on June 4, 2008, plaintiff, through its claims examiner, discussed the facts of the claim with the Vice-President. Additionally, he gave a sworn statement to the Company who was retained by plaintiff to investigate the claim. According to his statement: I saw when the woman fall. I was on the sidewalk. I was the only who witnessed the fall. She tripped on the hoses and fell forward on her hands there was no sign of injury and I helped her up. She walked away without asking for an ambulance. About an hour later she came back and asked for my name. At that time she told me that she had injured her arm and had seen a doctor. After she left I went out and took pictures of the hoses and the cones. After not hearing anything from the woman, I thought she was not going to make a claim, and did not think it was necessary to injury report it to my broker. Plaintiff disclaimed coverage by letter dated June 16, 2008, alleging that respondent failed to give timely notice of the claim. Plaintiff alleged that T&S was aware of the occurrence giving rise to the underlying action on about October 23, 2007, yet failed to notify them until May 21, 2008.

The issue in this case is whether plaintiff’s motion for summary judgment seeking a declaration that it is not obligated to defend or indemnify respondent on the grounds that it failed to provide timely notice of the claim in violation of the policy terms should be granted.
CPLR § 3212(b) requires that for a court to grant summary judgment, the court must determine if the movant's papers justify holding, as a matter of law, "that the cause of action or defense has no merit." It is well settled that the remedy of summary judgment, although a drastic one, is appropriate where a thorough examination of the merits clearly demonstrates the absence of any triable issues of fact. It is incumbent upon the moving party to make a prima facie showing based on sufficient evidence to warrant the court to find movant's entitlement to judgment as a matter of law. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Summary judgment should be denied when, based upon the evidence presented, there is any significant doubt as to the existence of a triable issue of fact. When there is no genuine issue to be resolved at trial, the case should be summarily decided.

The record shows that T&S should have reasonably anticipated that a claim would be asserted. The Vice-president saw complainant fall in front of his premises; complainant came back an hour later to request insurance information and received a business card from the purported owner after claiming that she had just come from seeing a doctor, and was in pain as a result of the fall. The witnessing of the fall by the Vice-president and the statements of the complainant made immediately after the accident and the statements made an hour later when she returned, should have reasonably alerted the insured that a claim was possible.

The insured claims that it reasonably believed in its non-liability with respect to the alleged incident, because it was not involved in any activities at the loss location and were not responsible for any alleged back injury, and therefore had no awareness of any liability with respect to Wiesel's accident. However, the relevant legal standard is "not whether the insured believes he will ultimately be found liable for the injury, but whether he has a reasonable basis for a belief that no clam will be asserted against him".

This Court agrees with Tower that notice of the occurrence was untimely as a matter of law. Tower established that its insured, respondent failed to report the incident for nearly seven months. In response, respondent failed to demonstrate that a reasonably prudent person, upon learning of the incident, would have a good faith, objective basis for believing that litigation would not be commenced. Having failed to do so, the insured is entitled to summary judgment in its favor declaring that it had no duty to defend or indemnify respondent.

Accordingly, the court held that the motion of plaintiff for summary judgment on its first cause of action seeking a declaration that it is not obliged to provide a defense to, and provide coverage for, the respondent in the personal injury action is granted; and it is further adjudged and declared that plaintiff herein is not obliged to provide a defense to, and provide coverage for, the respondent in the said action pending in Kings County. It is further ordered that the branch of plaintiff's motion for a default judgment against the other defendants in this action is rendered moot.

A Kings Construction Accident Lawyer

July 16, 2015,

A Kings Construction Accident Lawyer said that, this declaratory judgment action arises from an incident on October 23, 2007, in which complainant allegedly tripped and fell over a hose that lay across the sidewalk adjacent to the premises at 1911 Avenue M, Brooklyn, New York ("the Premises") and sustained bodily injuries. Thereafter, she commenced a personal injury suit pending in the Supreme Court of the State of New York, County of Kings ("the underlying action"). Plaintiff, Insurance Company now submits this motion for summary judgment seeking a declaration that it is not obligated to defend or indemnify respondent Ton the grounds that it failed to provide timely notice of the claim in violation of the policy terms.

A Kings Back Injury Lawyer said that, plaintiff Insurance Company issued a commercial general liability insurance policy to respondent for the subject premises. The policy conditions coverage under the general liability part on receipt of prompt notice of an occurrence or offense that may give rise to a claim. Policy form CG 00 01 10 01, at Section IV - Commercial General Liability Conditions, at paragraph 2 states in relevant part: 2. Duties in the event of Occurrence, Offense, Claim or Suit a. You must see to it that we are notified as soon as practicable of an "occurrence" or an offense which may result in a claim. To the extent possible, notice should include: (1) How, when and where the "occurrence" or offense took place; (2) The names and addresses of any injured person and witnesses; and (3) The nature and location of any injury or damage arising out of the occurrence" or offense. "Occurrence" is defined in Section V - Definitions as follows:

"Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.

A Kings Premises Liability Lawyer said that, according to the allegations in the underlying action, the complainant sustained personal injuries when she tripped and fell over a hose laying across the sidewalk adjacent to the insured's premises. Complainant alleges that respondent and others were negligent in the ownership, maintenance, control and/or supervision of the wires and/or hoses that lay across the aforementioned sidewalk. Plaintiff alleges that respondent forfeited its right to coverage under the policy by waiting seven months before reporting the incident to them, in violation of the policy condition that insured give notice of a claim "as soon as practicable." On May 21, 2008, approximately seven months after the occurrence took place, plaintiff received first notice of the incident by receipt of a facsimile from vice-president of Respondent Corporation, forwarding a copy of the underlying summons and complaint.


To Be Cont...

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The issue in this case is whether plaintiff sustained serious injury

July 14, 2015,


Insurance Law §5102(d) defines serious injury as: "A personal injury which results in 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 than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."

"A defendant can establish that the plaintiff's injuries are not serious within the meaning of Insurance Law§5102(d) by submitting the affidavits or affirmations of medical experts who examined the plaintiff and conclude that no objective medical findings support the plaintiff's claim." "With this established, the burden shifts to the plaintiff to come forward with evidence to overcome the defendant's submissions by demonstrating a triable issue of fact that a serious medical was sustained within the meaning of the Insurance Law. The plaintiff in such a situation must present objective evidence of the injury."

In support of the instant motion, defendant submitted the affirmed report of defendant's examining orthopedic surgeon. He examined the claimant on February 9, 2011, and conducted range of motion testing of his cervical and lumbar spine, right hip and right knee. He compared his finding to what was normal and concluded that plaintiff had normal range of motion in all areas, had no disability and had resolved soft tissue injuries. His examination was conducted over four years after the accident of December 19, 2006 and was silent on the plaintiff's medical condition during the six month period following the accident. Plaintiff's verified bill of particulars dated April 7, 2010, however, admits in paragraph six and seven, that he was confined to bed and to home for approximately three weeks and that he lost one week of work due to the accident.

The defendant may rely on plaintiff's admissions in the verified bill of particulars to establish that the plaintiff did not meet the 90/180 category of serious injury of Insurance Law §5102(d). Where a plaintiff made admissions in a bill of particulars of having missed no more than a week from and having been confined to home and incapacitated from household duties for only three weeks, a defendant may use such admissions to make the necessary showing that the plaintiff did not sustain a medically determined injuty pursuant to Insurance Law § 5102(d) .

The Appellate Division First Department came to a similar conclusion in the 2008 case decision. In the said case the Appellate court found that the defendants met their initial burden under the 90/180 category by submitting plaintiff's deposition testimony and bill of particulars which indicated that the plaintiff had been confined to bed for five days and missed five days of work following the accident. Accordingly, defendant has made a prima facie showing that the claimant did not sustain a serious injury within the meaning of Insurance Law § 5102(d) and has shifted the burden to the dog bite plaintiff to come forward with evidence to demonstrate a triable issue of fact.

In opposition, the plaintiff failed to raise a triable issue of fact. Since the plaintiff alleged a permanent serious injury and a significant limitation of use, plaintiff was required to submit objective medical evidence based upon a recent examination.

Plaintiff failed to satisfy this requirement. Plaintiff submitted the affirmation of his treating physician, which set forth his findings based on an examination of the plaintiff on February 8, 2007. Plaintiff's treating physiatrist set forth his findings based on an examination of the plaintiff on December 19, 2006. Plaintiff's treating chiropractor, set forth his findings from three examinations of the plaintiff which occurred on December 19, 2006, February 23, 2007 and May 2007.

Furthermore, in view of the plaintiff's verified bill of particulars and deposition testimony that he missed only one week of work and was confined to bed and to home for only three weeks as a result of the subject accident, he failed to raise a triable issue of fact under the 90/180 day category of Insurance Law 5102(d).

Accordingly, the court held that defendant's motion pursuant to CPLR 3212 for summary judgment dismissing the complaint on the ground that complainant did not sustain a serious injury within the meaning of Insurance Law §5102(d) is granted.

The issue in this case is whether plaintiff sustained serious injury

July 11, 2015,

A Kings Spinal Injury Lawyer said that, by notice of motion filed on May 27, 2011, under motion sequence four, defendant moves pursuant to CPLR 3212 for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) and plaintiff’s claim is derivative to complainant’s claim. By stipulation of all parties dated September 3, 2009, plaintiffs discontinued the action against defendant. Plaintiffs oppose the motion.

A Kings Car Accident Lawyer said that, on June 11, 2009, plaintiff commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office. By verified answer dated September 4, 2009, defendant joined issue. On April 12, 2011, a note of issue was filed. Plaintiffs' instant action is to recover damages for personal and derivative injuries sustained as a result of a motor vehicle accident. Plaintiffs have alleged in the complaint and bill of particulars that on December 19, 2006, at approximately 12:00 a.m., defendant negligently drove a vehicle at the intersection of West Street and Warren Street in the County and City of New York and struck the rear of plaintiff’s vehicle causing serious injury to him and derivative injury to his spouse.

A Kings Spinal Cord Injury Lawyer said that, defendant's motion papers consist of an attorney's affirmation and nine annexed exhibits, labeled A through I. Exhibit A is an E-Law print out. Exhibit B is a copy of the instant summons and verified complaint. Exhibit C is a copy of defendant's verified answer dated September 4, 2009. Exhibit D is the party’s stipulation discontinuing the action against defendant. Exhibit E is a copy of plaintiff's verified bill of particulars dated April 7, 2010. Exhibit F is a copy of the transcript of plaintiff's deposition conducted on December 16, 2010. Exhibit G is the affirmed medical report of the doctor, pertaining to his orthopedic examination of the complainant on February 9, 2011. Exhibit H, is the radiological report of the doctor, opining on complainants cervical, thoracic and lumbar spine x-rays taken on February 8, 2007. Exhibit I is the affirmed medical report of the doctor. He in which he opined on the complainant’s MRI lumbar spine study conducted on February 23, 2007.

The issue in this case is whether plaintiff sustained serious injury as defined under the Insurance Law.

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists. The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts.

A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers. If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact.


To Be Cont...

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The issue in this case is whether plaintiff is entitled for damages

July 9, 2015,

The plaintiff provided the defendant with a verified bill of particulars dated November 10, 2009. In paragraphs fourteen and fifteen, the plaintiff states that she tripped as a result of an open abandoned utility hole in the sidewalk in front of the premises located at 236 Irving Avenue. At her deposition conducted on August 10, 2010, plaintiff testified that the aforementioned defect was a break "where they put the gas in, where they put in the tube".
The defendant may rely on the admissions contained in the plaintiff's verified bill of particulars and deposition testimony as evidence of the admitted facts. The personal injury defendant does not dispute that the defect is as an access point to a gas main. Therefore, the defendant may rely on plaintiff's admission that the defect is an access point to a gas main.

The defendant contends that NYCRR §7-210 does not apply to him because he did not create and is not responsible for maintaining the access point to the gas main in the sidewalk in front of his property. Inasmuch as the subject property is an eight family property within the confines of the City of New York, the defendant is not exempt from the requirements of NYCRR §7-210. Although not specifically articulated by the defendant the question that remains is whether an access point to a gas main contained within a public sidewalk is considered part of the sidewalk for purposes of applying NYCRR §7-210.

The issue presented is similar to the argument advanced by an adjoining property owner in one case. In that case the defendant ultimately established successfully that a tree well contained within a public sidewalk is not considered part of the sidewalk for purposes of applying NYCRR §7-210. Similarly, the Appellate Division, First Department determined that sidewalk grates are not considered part of the sidewalk and that NYCRR §7-210 does not impose liability upon a property owner for failure to maintain a sidewalk grate in a reasonably safe condition.

The question is resolved by the holding. The Appellate Division, Second Department held that summary judgment as a matter of law may be granted to the defendant when he establishes prima facie that he did not have exclusive control over the gas valve cover on which the plaintiff allegedly tripped and fell. The court agrees with the defendant's claim that he has no responsibility for the repair and maintenance of the access point of gas mains. The court further finds that the access point of the gas main is outside of the ambit of NYCRR §7-210. Therefore the defendant has demonstrated prima facie that he neither controlled nor is he responsible for the condition of the access point to the gas main.

The burden now shifts to the plaintiff to produce evidentiary proof sufficient to establish the existence of dog bite material issues of fact. Plaintiff's attorney submitted an affirmation in opposition to the defendant's motion for summary judgment, which restates the substance of the complaint and alleges that the defendant's legal arguments on tree wells are distinguishable and irrelevant to the present factual scenario. Plaintiff's opposition papers do not raise a triable issue of fact.

Accordingly, the court held that the defendant's motion for an order granting summary judgment in his favor on the issue of liability and dismissing plaintiff's complaint is granted.

The issue in this case is whether plaintiff is entitled for damages

July 7, 2015,

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists. The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts. A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers. If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material dog bite issues of fact.

In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the non-movant. "The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist". "Liability for a dangerous or defective condition is predicated upon ownership, occupancy, control or special use of the property Where none is present, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property".

Generally, liability for injury sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality and not the abutting landowner. A landowner is not liable to a pedestrian injured by a defect in a public sidewalk abutting the landowner's property unless the landowner caused the defective condition through negligent construction or repair, or as a result of some special use, or if a statute imposes the obligation to maintain the sidewalk on the abutting property owner.

"The principle of special use,' to the extent applicable here, imposes an obligation upon an entity to maintain a part of the public way in a reasonably safe condition when that part is under its control and is used for its own benefit. "Plaintiff has not alleged either in her complaint, bill of particulars or deposition testimony that the defendant had exclusive control over the gas main or that he used it for his own benefit. Maria Valera's deposition establishes that the defendant did not make special use of the gas main access point on the sidewalk.

NYCRR §7-210(a) states that "it shall be the duty of the owner of real property abutting any sidewalk to maintain such sidewalk in a reasonably safe condition." NYCRR §7-210(b) states "the owner of real property abutting any sidewalk shall be liable for any injury to property personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition." NYCRR §7-210 "imposes tort liability on property owners who fail to maintain city-owned sidewalks in a reasonably safe condition." NYCRR §7-210(c) provides a liability exception for one, two or three family residential real property that is in whole or in part, owner occupied, and used exclusively for residential purposes.

This is an action to recover damages for personal injury sustained by the plaintiff when she tripped and fell on a defect in the public sidewalk adjoining the defendant's property. It is undisputed that plaintiff is claiming that the defendant negligently maintained the sidewalk but is not claiming that the defendant caused or created the dangerous condition.

The uncontroverted deposition testimony of defendant's witness, establishes the following facts. Defendant is the landlord of the subject property, an eight-family apartment house, and she is his employee. Since 2005, she has resided in an apartment in the building and has been responsible for cleaning and mopping the common areas. The property is heated by gas. She was shown a photograph depicting the dangerous condition as identified by the plaintiff in her own deposition. She described the condition as a hole that had been there since she started working there. She further stated that there is a cover or cap that the neighborhood children keep removing.

To Be Cont...

The issue in this case is whether plaintiff is entitled for damages

July 4, 2015,

A Kings Construction Accident Lawyer said that, by notice of motion filed on January 6, 2011, defendant moves pursuant to CPLR 3212 for an order granting summary judgment in his favor on the issue of liability and dismissing plaintiff's complaint. Plaintiff opposes the defendant's motion. On February 6, 2009, plaintiff filed a summons and verified complaint with the Kings County Clerk's Office. Defendant joined issue with a verified answer dated May 1, 2009. On November 8, 2010, a note of issue was filed.

A Kings Slip and Fall Lawyer said that, the instant action is for damages for personal injury sustained in a trip and fall incident. Plaintiff's verified complaint and bill of particulars alleges, among other things, that on September 2, 2008, she tripped, fell and injured herself on a dangerous and defective condition in the sidewalk in front of a building owned by the defendant (hereafter "the subject sidewalk") located in Kings County, New York. Plaintiff further alleges that the dangerous condition was due to defendant's negligent maintenance of the subject sidewalk.

The defendant's motion papers consist of a notice of motion, an attorney's affirmation and seven exhibits, labeled A through G. Exhibit A contains the summons and verified complaint. Exhibit B consists of the defendant's verified answer, and various discovery demands. Exhibit C is the note of issue. Exhibit D is a transcript of the deposition of the plaintiff taken on August 10, 2004. Exhibit E contains the plaintiff's verified bill of particulars. Exhibit F contains color photographs of the alleged dangerous condition at the location in question. Exhibit G contains the transcript of the deposition of the defendant's employee, taken on October 19, 2010. The plaintiff's opposition papers consist of an attorney's affirmation and three exhibits labeled A through C. Exhibit A is the deposition of the plaintiff taken on August 10, 2004. Exhibit B is the deposition of Maria Valera, taken on October 19, 2010. Exhibit C contains black and white photographs of the accident scene.

The issue in this case is whether plaintiff is entitled for damages.

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A Kings Workers Compensation Lawyer

July 2, 2015,

“An insurer's duty to defend is broader than its duty to indemnify, such that an insurer may be obligated to defend its insured even if, at the conclusion of an underlying action, it is found to have no obligation to indemnify its insured”. “An insurer must defend its insured whenever the allegations of a complaint in an underlying action ‘suggest a reasonable possibility of coverage’. The duty to defend an insured is not triggered, however, “when the only possible interpretation of the allegations against the insured is that the factual predicate for the claim falls wholly within a policy exclusion”. “An exclusion from coverage ‘must be specific and clear in order to be enforced’, and an ambiguity in an exclusionary clause must be construed most strongly against the insurer”. “However, the plain meaning of a policy's language may not be disregarded to find an ambiguity where none exists”.

Here, the plain meaning of the employee exclusion invoked by defendant Insurance Company is that the policy does not provide coverage for damages arising out of bodily injury sustained by an employee of any contractor hired by or for any insured in the course of the employee's employment. In the plaintiff's complaint in the main action, he alleged that he sustained bodily injury in the course of his employment for Contracting Corp., an entity he alleged was hired to perform work on the construction project by either Fabian, an additional insured under the policy, or defendant, the named insured of the policy. The only possible interpretation of these allegations is that the factual predicate for the plaintiff's claim falls wholly within the employee exclusion. In opposition to Utica's prima facie establishment of its entitlement to judgment as a matter of law, Fabian failed to raise a triable issue of fact. Accordingly, the policy precludes coverage to Fabian and AG Masonry for the injuries allegedly sustained by the plaintiff, and the Supreme Court should have granted that branch of Utica's motion which was for summary judgment declaring that it is not obligated to defend and indemnify the defendants in the main action. Defendant Insurance Company’s remaining contention is not properly before the Court and, in any event, has been rendered academic in light of our determination.

Since the third-party action is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Kings County, for the entry of a judgment declaring that Utica is not obligated to defend or indemnify Fabian and AG Masonry in the main action of personal injury appeal dismissed.

Accordingly, the court held that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion of the third-party defendant Utica First Insurance Company which was for summary judgment declaring that it is not obligated to defend and indemnify the defendant third-party plaintiff, and the defendant third-party defendant, in the main action is granted, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the third-party defendant Insurance Company is not so obligated.

A Kings Workers Compensation Lawyer

June 29, 2015,

A Kings Workers Compensation Lawyer said that, in an action to recover damages for personal injury, and a third-party action, inter alia, for a judgment declaring that the third-party defendant Insurance Company is obligated to defend and indemnify the defendant third-party plaintiff, in the main action, the third-party defendant Insurance Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County, dated November 25, 2009, as denied that branch of its motion which was for summary judgment declaring that it is not obligated to defend and indemnify the defendant third-party plaintiff, and the defendant third-party defendant, in the main action.

A Kings Personal Injury Lawyer said that, the third-party defendant Insurance Company issued an insurance policy to the defendant third-party defendant Corporation that contained an exclusion for bodily injury to any employee of any contractor hired by or for any insured arising out of and in the course of the employee's employment for that contractor. The defendant third-party plaintiff, then hired third-party defendant Corporation to perform work on a construction site by way of a written contract, which required third-party defendant Corporation to name defendant as an additional insured under its insurance policy. The plaintiff commenced this action against them to recover damages for personal injury he allegedly sustained while working on the project for a subcontractor hired by either defendant or third-party defendant Corporation. Defendant Insurance Company denied coverage to third-party defendant Corporation inter alia, on the ground that the employee exclusion precluded coverage. Defendant Insurance Company denied coverage to Fabian, among other things, on the same ground.

Defendant then commenced a third-party action, inter alia, for a judgment declaring that defendant Insurance Company is obligated to defend and indemnify it in the main action as an additional insured of the policy issued to third-party defendant Corporation. Defendant Insurance Company moved, among other things, for summary judgment declaring that it is not obligated to defend or indemnify them in the plaintiff's action. In the order appealed from, the Supreme Court, inter alia, denied that branch of defendant’s Insurance Company’s motion which was for summary judgment declaring that it was not obligated to provide such a defense and indemnification.

We reverse the order insofar as appealed from.

To Be Cont...

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