On November 4, 2010, Judge Peter Mayer of Supreme Court, Suffolk County, reiterated in Matter of Hartford Ins. Co. v Mulcahy, (2010 NY Slip Op 51893U)
the heavy "Thrasher" burden of an insurance carrier seeking to disclaim coverage based on non-cooperation of its insured, "to effectively deny coverage based upon lack of cooperation, an insurance carrier must demonstrate that: (1) it acted diligently in seeking to bring about the insured's cooperation; (2) the efforts employed by the insurer were reasonably calculated to obtain the insured's cooperation; and (3) the attitude of the insured, after his or her cooperation was sought, was one of willful and avowed obstruction (Thrasher v United States Liability Ins. Co., 19 NY2d 159, 225 NE2d 503, 278 NYS2d 793 [1967]).

The "willful and avowed obstruction" prong of this three part test was not met principally because of the lack of detail set forth in the affidavit submitted by GEICO in opposition to a petition to stay arbitration. The Court points to a long line of cases which followed Thrasher (supra) to hold "Mere inaction by an insured will not, by itself, justify a disclaimer of coverage on the ground of lack of cooperation": Preferred Mut. Ins. Co. v SAV Carpentry, Inc., 44 AD3d 921, 844 NYS2d 363 [2d Dept 2007]; Allstate Ins. Co. v United Intl. Ins. Co., 16 AD3d 605, 792 NYS2d 549 [2d Dept 2005]; Pawtucket Mut. Ins. Co. v Soler, 184 AD2d 498, 584 NYS2d 192 [2d Dept 1992]); (Mount Vernon Fire Ins. Co. v 170 E. 106th St. Realty Corp., 212 AD2d 419, 622 NYS2d 758 [1995]); (New York State Ins. Fund v Merchants Ins. Co. of N.H., 5 A.D.3d 449, 773 N.Y.S.2d 431 [2d Dept 2004]; Pawtucket Mut. Ins. Co. v Soler, supra).

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A fire in a home occupied by Otis Hampton in Brooklyn led to the Appellate Term decision of November 8, 2010 in New York Property Insurance Underwriting Association, as subrogee of Frances Poole and Everald Poole v. Hampton (2010 NY Slip Op 20048). The source of the fire was a frying pan on the stove at the Hampton residence. Frances Poole and Everald Poole lived in an adjacent attached home. Apparently the Pooles were present when firemen were on the scene and they were told by a neighbor to go back in their home and close their windows to avoid smoke damage. Summary judgment was granted by the Civil Court and the appeal focused on the sole issue of whether the defendant raised a question of fact as to the comparative negligence of the Pooles for failing to return to their home and close their windows while the fire next door was being fought by the NYFD. The Appellate Term held, "Smoke and water damage to adjacent property are foreseeable consequences of a fire, and plaintiff may recover for such damage if he established defendants breach of duty and proximate cause"

"In our view, under the circumstances presented, the Civil Court properly found as a matter of law that the insureds' alleged failure to close their windows while firefighters were fighting the blaze did not constitute culpable conduct on the part of the insureds so as to raise a triable issue of fact. Accordingly, the order of the Civil Court granting plaintiff's motion for summary judgment is affirmed." Judge Golia, in dissent, argues that the record below was insufficient to grant summary judgment and that the affidavit submitted by Ms. Poole failed to indicate, "any other reason why Ms. Poole had failed to protect her property and mitigate her damages." Returning to your home during a fire next door to close your windows is probably not the best choice, regardless of whether the decision raises a "question of fact" on a later motion for summary judgment. We stand with the Poole's on this one, outside on the street.

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Tammy Johnson was standing on 126 Street in Manhattan on May 27, 2005, playing with her 18 month old daughter. She heard gunshots and took cover with her daughter behind a white SUV parked on the street. She saw from under the SUV, a man across the street shooting at police officers who were in pursuit. A bullet then struck her elbow and that shot led to a November 23, 2010 decision by the New York Court of Appeals which upheld the dismissal of her claim by the Appellate Division, First department (65 A.D. 3d 476).

Tammy Johnson v. City of New York, 2010 NY Slip Op 8609, held "The professional judgment rule insulates a municipality from liability for its employees' performance of their duties "'where the . . . conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions . . .'" (McCormack v City of New York, 80 NY2d 808, 811, 600 N.E.2d 211, 587 N.Y.S.2d 580 [1992] quoting Kenavan v City of New York, 70 NY2d 558, 569, 517 N.E.2d 872, 523 N.Y.S.2d 60 [1987])." Here Ms. Johnson claimed the police violated the "Deadly Physical Force" police procedure mandate, "Police officers shall not discharge their weapons when doing so will unnecessarily endanger innocent persons." Judge Pigott, writing for the majority, indicated there was no evidence that Ms. Johnson and her daughter were in the line of fire. The central question was, "did the officers exercise their judgment when confronted with an armed suspect firing at them?" Judge Pigott held that the police acted properly, "The fact that the officers did not observe the bystanders who were present at the time they were exercising that judgment does not raise an issue as to whether they unnecessarily endangered innocent persons." Here the Court found in favor of the police and the City holding the public safety needs of the many, outweighed the needs of the innocent bystander.
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"What happens if you are hit by a bus?" is a line from a life insurance salesman's playbook. In New York County, being hit by a Transit Authority bus resulted in a verdict for Claude Williams of 1.8 million dollars. On appeal to the First Department, the November 9, 2010 decision of Williams v. Hooper (2020 NY Slip Op 7981), tossed that verdict out the bus window based on an erroneous charge by the trial court under the Noseworthy doctrine. Noseworthy v City of New York, 298 NY 76, 80 N.E.2d 744 [1948] permits a plaintiff to prevail on a lesser degree of proof where the injured plaintiff has no recollection of the occurrence.

The Appellate Division decision took odds with the trial court's basis for the instructions indicating, "According to the trial court, a Noseworthy instruction was warranted because of the "competent medical evidence that plaintiff did have amnesia and his version of the events was at odds with most of the eyewitnesses as well as not detailed.""

Even putting aside the infirmity noted above in the testimony about plaintiff's amnesia, the trial court erred because plaintiff did testify in detail about the occurrence. The trial court's finding to the contrary is manifestly wrong. As noted, plaintiff's testimony that he was struck by the mirror of the bus is what was at odds with the accounts given by other eyewitnesses (and with the objective fact that he could not have been hit by the mirror). But it scarcely follows that his testimony about this one detail is sufficient to warrant a Noseworthy instruction. To the contrary, the precedents discussed above make clear that it is not." A rather strong rebuke from the Appellate Division on the Trial Court Judge's choice of law in charging the jury and a victory for the often maligned Transit Authority.

Read full decision here.