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A Matter of Law
Autumn 2011 |
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Roe Taroff Taitz & Portman, LLP
One Corporate Drive
Bohemia, New York 11716
631-475-4400
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Greetings!
Welcome to our Autumn newsletter. We trust that you had a pleasant and rewarding Summer. Now that Fall is underway and we are back to work and school, we hope that you will enjoy the updates included below  . Sincerely,
Roe Taroff Taitz & Portman, LLP |
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The Family Dog is Marital Property
In Walash v. Kilgour, 2011 NY Slip Op 51700U, the Supreme Court is facing the conundrum of who gets to keep an adopted dog. It seems that while the owners of the dog were separated, the wife put the dog up for adoption without the consent of her husband, the plaintiff. (The wife, of course, claims that finding the dog a new home was for the dog's good, and not an act of revenge against her husband.) Defendant adopted the dog with no knowledge that there was a co-owner who had not consented to the adoption.
In a September 6, 2011, opinion, the Supreme Court, Orange County, ruled that even though the dog license was issued solely in the wife's name, the dog was marital property which the wife could not lawfully dispose of during the pendency of the divorce proceeding. However, it ordered a hearing on the issue of whether the plaintiff husband has a superior right of possession to that of the adoptive owner. It further ordered a conference at which the parties would discuss visitation rights of the plaintiff during the pendency of the action.
Oddly, the wife had found new homes for all four of the couple's dogs, but the husband is only litigating for the return of one. He must have been the pick of the litter! |
| Homeowners' Insurance Exclusions
The liability portion of a homeowner's insurance policy typically includes language that excludes payment for injures to the policyholder(s) and to residents of the insured premises who are related to the policyholder(s). Indeed, the purpose of the coverage is to protect the policyholder(s) from claims for injury to third parties who are injured on the premises, not to insure the policyholders and their family members themselves. However, any ambiguity in the language of an insurance policy must be construed in favor of coverage, not exclusion. Thus, the Court of Appeals found Allstate liable for the death of one of its insureds in Cragg v. Allstate Indemnity Corp., 17 NY3d 118 (June 9, 2011).
In Cragg, a three year old and her mother resided with the child's grandparents. The child tragically drowned in her grandparents' swimming pool and her father, who resided elsewhere, brought a wrongful death action against the child's mother. The policy exclusion stated: "We do not cover bodily injury to an insured person . . . whenever any benefit of this coverage would accrue directly or indirectly to an insured person." Allstate declined to defend the suit or indemnify the insured for the father's claim, a position that the Supreme Court and the Appellate Division sustained. The Court of Appeals, however, reversed. Noting that, unlike a claim for pain and suffering which belongs to the estate of the deceased, plaintiff's wrongful death claim was for his own loss, and coverage would not accrue to an insured person. True the insured mother would benefit by virtue of being indemnified for the claim, but the Court noted that in this context, "benefit" is more naturally read to mean proceeds paid under the policy.
It is fair to assume that Allstate has already drafted amended language for its homeowner's coverages.
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GOOD NEWS FOR BLOGGERS
In June, the New York Court of Appeals for the first time addressed the scope of the protection provided to internet service providers by the Communications Decency Act (47 USC § 230). In doing so, it followed the national consensus in ruling that website owners and bloggers are generally immune from liability for content provided by third parties, even if they have edited that content and reposted it. Shiamili v. The Real Estate Group, 17 NY3d 281 (June 14, 2011). In Shiamili, the defendants reposted a comment that allegedly defamed a business competitor, adding a heading, sub-heading and a satirical illustration. Three judges dissented, including Chief Judge Lippman, who concluded that the website operator had materially contributed to and amplified the author's scurrilous attack, going beyond a publisher's traditional editorial functions. That, the dissenters argued, should have taken defendants outside the scope of the protections offered by the statute.
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About Our Law Firm
Partners: Counsel:
John J. Roe, III Linda D. Calder
Lester P. Taroff Paula Wetstein
Steven Taitz Christine R. Shiebler
Elliot Portman Associate:
Christine Perrucci Smith |
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|  |  | | Sports Injuries
Everyone knows that staying active and fit is good for your health. But adults and students who participate in sports should be aware that if they are injured while playing, they may have only themselves to blame, legally. The doctrine of "assumption of risk" dictates that those who engage in sports are deemed to have assumed the commonly known risks and dangers that are inherent in the sport. Thus, in Rochford v. Woodloch Pines, Inc., 2011 US Dist. Lexis 96113 [Aug. 26, 2011], the United States District Court for the Eastern District of New York ruled that a golf course was not liable to a golfer who slipped in the rain on outdoor steps leading to the green. The Court held that the plaintiff, an experienced golfer, should have been aware of the risks associated with playing in the rain.
The courts routinely absolve schools and recreational facilities of liability to participants and audience members for injuries sustained in the course of athletic events. See, e.g., Morgan v. State, 90 NY2d 471, (bob sledder and karate student assumed the risks) and cases cited therein.
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Referral Of Contractor Is Not A Guaranty
In Alexander v. Salerno , plaintiff purchased masonry materials for the construction of a patio from a local merchant. Plaintiff asked the sales clerk for a contractor referral and the clerk provided her with the name of a stone mason who had done work at his own home. As it turned out, the mason sub-contracted the work to another. When the workwas unsatisfactory, plaintiff sued not only the mason, but also the merchant.
On behalf of the merchant, Roe Taroff argued that the recommendation provided by a sales clerk did not constitute the merchant's guaranty of the quality of the contractor's workmanship. The Suffolk County District Court agreed, and dismissed the complaint against the merchant. For further information on this case, contact Steven Taitz or Linda Calder. |
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