In Automobile Insurance Company of Hartford vs. Cook (June 8, 2006), the New York Court of Appeals re-visited the "intentional acts" exclusion in a homeowner's policy. In Cook, the insured was confronted at his home by an acquaintance, Richard A. Barber, following an argument over a financial matter. When Mr. Barber entered the insured's home without permission and refused to leave, the insured threatened Mr. Barber with a gun. After ignoring repeated warnings to retreat, Mr. Barber continued to advance toward the insured until the insured fatally shot Mr. Barber in the abdomen.

Mr. Cook's insurance carrier brought a declaratory judgment action seeking declaration that it did not have a duty to defend, arguing that the injury inflicted upon Barber was "expected or intended" by the insured and therefore was excluded from coverage.

Upon motions for summary judgment, the trial court found that the insurance carrier had a duty to defend Mr. Cook and the Appellate Division reversed. The Court of Appeals reinstated the decision of the trial court, holding that the insured's shooting of the decedent may have been in self defense. That would obligate the insurer to defend the insured, in that the alleged actions of the insured did not fall within the homeowner's insurance policy's exclusion for injury "expected or intended" by the insured.

In Williams vs. Nassau County Medical Center (April 4, 2006), a case involving an infant claimant, the New York Court of Appeals examined the three factors that a Court must consider in determining whether to grant an infant's motion for leave to serve upon a municipality late notice of claim. The Court must consider the municipality's actual knowledge of the facts from sources other than the notice of claim, the infancy of a claimant, and the question of prejudice to the municipality if late service is permitted.

In Balbuena vs. IDR Realty LLC (February 21, 2006), the New York Court of Appeals dealt with the interplay of the Federal Immigration Reform and Control Act of 1986 (IRCA) and the New York Labor Law. In Balbuena, and its companion case, the plaintiffs were two immigrants not lawfully residing in the United States. The two illegal immigrants brought suit for a violation of Labor Law §§240(1) and 241(6).

The Court of Appeals, in a 5-2 decision, held that nothing in the IRCA bars the operation of New York State Labor Laws. Even though the plaintiffs were admittedly illegal immigrants and consequently employed illegally, the plaintiffs were still able to make a claim for general and special damages pursuant to the Labor Law.

The majority's position was that if recovery was denied, employers would be encouraged to hire illegal aliens, thereby shielding them from Labor Law liability.

The Worker's Compensation Law prohibits an action for common law indemnification against an employer in the absence of a "grave injury" to the employee. Article 16 of the CPLR limits recovery for noneconomic damages from a tortfeasor, whose liability is found to be 50% or less, to an amount equivalent to the tortfeasor's proportionate share of fault. Query whether a non-employer subcontractor, whose liability is found to be less than 50%, can be held liable to a property owner for common law indemnification for the total amount of noneconomic damages awarded to an injured plaintiff.

In 2004, the Appellate Division, First Department held that a vicariously liable property owner was not limited as to the common law indemnification which could be recovered from a non-employer subcontractor whose proportionate share of fault was 50% or less (Salamone vs. Wincaf Properties, Inc. (2004)). The Salamone court held that CPLR §1602(2)(ii) did not limit the owner's right of indemnification against the partially liable party.

The New York Court of Appeals has recently abrogated this rule in its holding in Frank vs. Meadowlakes Development Corporation (March 30, 2006). In Frank, the Court of Appeals held an owner's right of indemnification for noneconomic loss from a tortfeasor, whose liability is determined to be 50% or less, shall be limited to an amount proportionate to the tortfeasor's determined fault.

Prepared by Michael M. Chelus