In Farrington v. Go On Time Car Service, 2010 WL 3463502 (1st Dept., 2010), the plaintiff claimed injuries to her head, neck, back, shoulder and left knee as a result of a motor vehicle accident. In support of their motion for summary judgment, the defendants presented the reports of a neurologist, an orthopedic surgeon and a radiologist. Defendant's experts reviewed cervical, lumbar and left knee MRIs taken two months after the accident as well as reports from plaintiff's treating physicians. All noted normal exams with the exception of degenerative changes common for a person of the plaintiff's age with "scoliosis" and did not find evidence of trauma-related injury.

The Appellate Division determined that the lower Court should have dismissed the complaint because the plaintiff's experts did not address plaintiff's degenerative condition (scoliosis).

In Romano v. Steelcase, 2010 WL 3703242 (Suffolk Co. Sup. Ct. Sept. 21, 2010), Steelcase moved for an order granting access to plaintiff's current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information. Steelcase argued that the plaintiff had placed certain information on these social networking sites which it believed to be inconsistent with plaintiff's claims in this action concerning the extent and nature of her injuries, especially her claims for loss of enjoyment of life.

The Court held that plaintiff, who had placed her physical condition in controversy, may not shield from disclosure of material which is necessary to the defense of the action.

Furthermore, the Court held that, in light of the fact that publicly accessible portions of plaintiff's Facebook and MySpace sites contained material that were contrary to her claims and deposition testimony, there was a reasonable likelihood that the private portions of her sites might contain further evidence, such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action. Preventing defendant from accessing plaintiff's private postings on Facebook and MySpace would be in direct contravention of the liberal disclosure policy in New York State. As such, the Court held that Steelcase may obtain access to plaintiff's MySpace and Facebook pages, including all deleted pages and related information.

In DMP Contracting Corp. v. Essex Insurance Company, 2010 WL 3543347 (1st Dept., 2010), DMP Contracting Corp. brought an action seeking declaratory judgment that Essex Insurance Company had a duty under a Commercial General Liability policy, to defend and indemnify DMP in an underlying slip and fall accident. Essex argued that the CGL policy excluded coverage for any personal injuries arising out of the use of any auto, whether owned by the insured or not, and that there was no coverage pursuant to the policy's contractual liability limitation and breach of contract endorsements.

The Court found that the policy was unambiguous, as the underlying slip and fall accident had to do with the plaintiff slipping and falling when she was attempting to get into her father's vehicle. The auto exclusion provides "this insurance does not apply to bodily injury . . . arising out of, caused or contributed by the ownership, non-ownership, maintenance, use or entrustment to others of any single 'auto'. Use includes operation and 'loading and unloading'". The Appellate Division held that, upon plain reading of this auto exclusion to the Essex policy, there is no question that Essex does not owe a duty to defend DMP.

In Cirone v. Tower Insurance Company of New York, 2010 WL 3632360 (1st Dept., 2010), plaintiffs were injured when they were struck by an employee of a restaurant who was making deliveries on a bicycle. Plaintiffs commenced a personal injury action against the restaurant, who was insured under a policy issued by Tower. Tower brought a declaratory judgment action against the restaurant. The Court granted Tower summary judgment on the grounds that the restaurant delayed in notifying Tower of the occurrence of the accident. The Court held that the delay was not reasonably excusable. Tower was thereby relieved of the duty to defend and indemnify the restaurant in the underlying action.

Plaintiffs obtained a judgment against the restaurant. Thereafter, the restaurant assigned to the plaintiffs its rights against Tower. Plaintiffs, as the restaurant's assignees, commenced an action against Tower upon the claim that Tower refused to settle the personal injury action within its policy limits.

The Appellate Division upheld the lower Court's decision which granted Tower's motion for summary judgment. The Appellate Division held that an assignee never stands in a better position than its assignor and that the restaurant was already denied coverage based on untimely notice.

Prepared by Katy M. Hedges