On July 23, 2008, Governor David Paterson signed into law Senate Bill 8610 and Assembly Bill 11541 which amends New York's "no-prejudice" rule with respect to an insurer's denial of coverage based on late notice of claims.

Effective mid-January 2009, New York will no longer allow a personal injury or wrongful death insurer to disclaim coverage due to a late notice of claim in the absence of a showing that the insurer was prejudiced by the delay. New York, Insurance Law Section 3420 (a)(5) states: "failure to give any notice required to be given by such [liability insurance] policy within the time prescribed therein shall not invalidate any claim made by the insured, injured person or any other claimant, unless the failure to provide timely notice has prejudiced the insurer." Under Section 3420(c)(2)(C) of the amended Insurance Law, an insurance company will not be deemed prejudiced unless the late notice of claim "materially impairs the ability of the insurer to investigate or defend the claim."

While, as to claims filed within 2 years of an accident, the burden is on the insurer to demonstrate that it was materially prejudiced by a late notice of claim, where the delay is 2 years or longer the burden shifts to the insured to demonstrate that the insurer was not prejudiced by the late notice.

Section 3444 of the New York State Insurance Law was recently amended to require that insurance companies provide an annual notice to its insureds of the exclusion of flood loss found in their homeowners' policies as well as the availability of federal flood insurance. In the past, insurers were only required to provide such notice following the issuance of the policy.

This law was amended of concern that many homeowners are not aware that their homeowners and dwelling fire policies do not cover flood damage. In a statement issued by the State Superintendent of Insurance it was noted that many policyholders do not realize their policies do not cover flood damage until after flood damage occurs.

In Covert v. Samuel, __N.Y.S.2d __, 583 A.D.3d 1147 (4th Dept., 2008), the defendant moved for summary judgment on the basis that the plaintiff had not suffered a "serious injury" as defined by New York State Insurance Law § 5102(d). The plaintiff cross-moved for summary judgment on the grounds that she had suffered a "serious injury."

In support of its cross-motion, the plaintiff submitted affirmations from a treating neurosurgeon and orthopedic surgeon. The Court initially found that the neurosurgeon's affirmation was deficient as it did not adequately address how the plaintiff's current medical problems are causally related to the motor vehicle accident and not a degenerative condition. The Court however, found that the affirmation of an orthopedic surgeon was sufficient to establish a prima facie showing of serious injury where it "adequately" described how the motor vehicle accident aggravated a pre-existing injury in the plaintiff's right shoulder and resulted in a new shoulder injury.

The Court nevertheless denied the plaintiff's cross- motion based on the strength of an affidavit submitted by the defendant. The Court held that the defendant raised an issue of fact sufficient to defeat the plaintiff's motion by submitting the report of an IME physician who opined that the plaintiff's subjective complaints were the result of a pre-existing condition and were not causally related to the accident.

The Appellate Division, Fourth Department recently upheld an Erie County jury verdict which found that the defendant was not liable under Labor Law § 240(1). In Brown v. Concord Nurseries, Inc., __ N.Y.S.2d __, 53 A.D.3d 1067 (4th Dept., 2008), the plaintiff allegedly sustained injuries when he fell from an extension ladder while repairing an overhead garage door located on property owned by the defendant. The plaintiff did not contend that he was supplied a defective or unsafe ladder. Rather plaintiff contended that the ladder he was supplied was an improper piece of equipment for the work being performed. The plaintiff argued that the defendant was liable under Labor Law § 240(1) because he should have been provided a manlift or scaffold to perform work on the garage door rather than an extension ladder.

The plaintiff, on appeal, challenged the court's discretion in allowing the testimony of a safety expert who testified that the extension ladder used by the plaintiff was an appropriate, and therefore safe, piece of equipment for the work being performed. The Appellate Division found that where the defense had properly established the expertise of the witness, his testimony was admissible and could be considered by the jury in rendering its decision.

The Appellate Division, Fourth Department recently upheld the trial court's denial of a town's summary judgment motion based on the lack of prior written notice where the town affirmatively created the dangerous condition.

In Greenberg v. Nolan, 53 A.D.3d 1065, 861 N.Y.S.2d 883 (4th Dept., 2008), the decedent was killed in a motor vehicle accident after allegedly losing control of her vehicle, entering the oncoming lane of traffic, and striking an oncoming tour bus. The plaintiff contends that the vehicle lost control due to a significant elevation differential between the travel lane and shoulder of a Town of Amherst road.

The Town of Amherst moved for summary judgment on the grounds that it had not received prior written notice of an alleged defective condition pursuant to Town Law § 65-a(1). The Appellate Division affirmed the trial court's denial of the motion holding that prior written notice was not necessary where the town affirmatively created the dangerous condition and failed to meet its burden that it was free from negligence in maintaining the road.

The Appellate Division further upheld the trial court's dismissal of the claim against the defendant bus driver, who demonstrated she was operating the bus in a safe and prudent manner within her own lane of travel when the plaintiff's vehicle, then out of control, struck her vehicle.

Prepared by Patrick D. Slade