Hurricane Irene roared through the metropolitan region  August 28th, causing death and destruction. Over 40 deaths are attributed to the storm and flooding, with millions across the Northeast without power. Insurance carriers took to the airways advising their policy holders what to do to survive the storm and how to file a claim. Most homeowners policies contain a detailed description of a covered loss. In a named-peril policy, the insured "bears the initial burden of showing that the insurance contract covers the loss," i.e., that the loss resulted from a covered peril (Roundabout Theatre Co. v Continental Cas. Co., 302 A.D.2d 1, 6, 751 N.Y.S.2d 4 [2002]). Under the terms of a standard New York Homeowner's insurance policy, in order for there to be insurance coverage under the covered peril of "Windstorm or Hail," the insured must establish that the structure "first sustained wind damage to its roof or walls through which the rain entered." The homeowner must demonstrate that wind was "the proximate, efficient and dominant cause" of the damage that allowed the water to enter the building and damage its property (see Album Realty Corp. v American Home Assur. Co., 80 N.Y.2d 1008, 1010, 607 N.E.2d 804, 592 N.Y.S.2d 657 [1992]).

In cases involving fallen trees, a property owner will be held liable only if he or she knew or should have known of the dangerous condition of the tree (see Ivancic v Olmstead, 66 NY2d 349, 351, 488 NE2d 72, 497 NYS2d 326 [1985], cert denied 476 US 1117, 106 S Ct 1975, 90 L Ed 2d 658 [1986]; Harris v Village of E. Hills, 41 NY2d 446, 450, 362 NE2d 243, 393 NYS2d 691 [1977]; Asnip v State of New York, 300 AD2d 328, 751 NYS2d 316 [2002]; Lahowin v Ganley, 265 AD2d 530, 696 NYS2d 241 [1999]; Golan v Astuto, 242 AD2d 669, 662 NYS2d 576 [1997]). Constructive notice in such a case can be imputed if the record establishes that a reasonable inspection would have revealed the dangerous condition of the tree (see Harris v Village of E. Hills, 41 NY2d at 449).

Water Damage exclusions may relieve carriers of the devastating effects of this storm. Post Irene litigation is guaranteed much like the sunshine that greeted us as soon as the storm passed. In the end, the Insurance Carrier will be required to show proof why the policy did not cover this devastating "peril". Where an insurer denies coverage based upon an exclusion, the burden is on the insurer to demonstrate that the exclusion applies in the particular case and that it is "subject to no other reasonable interpretation" (Seaboard Sur. Co. v Gillette Co., 64 NY2d at 311).  

Respondeat superior provides that "the employer may be held liable when the employee acts negligently or  intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment. However, liability will not attach for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business" (Fernandez v. Rustic Inn, Inc., 60 AD3d 893, 896, 876 N.Y.S.2d 99 [2d Dept., 2009]; Jackson v. University Downtown Hospital, 69 AD3d 801, 801, 893 N.Y.S.2d 235 [2d Dept., 2010]; R. v R., 37 AD3d 577, 578, 829 N.Y.S.2d 659 [2d Dept., 2007]).

Judge Judith McMahon of Richmond County Supreme Court refused to dismiss the case on a summary judgment motion finding, "Plaintiffs have presented evidence that keys to vehicles in the inventory were available for the use of salespersons and defendants had previously experienced employees using the vehicles during non-business hours, without authorization. Clearly, this raises questions of fact with respect to whether defendants acted reasonably in hiring Dexter Bostic without a criminal background check after knowing vehicles in their inventory were routinely used without permission during non-business hours. In addition, plaintiff presented evidence that Dexter Bostic has had multiple prior felony convictions, including two lengthy prison sentences for gun possession and robbery, which also raises questions as to the foreseeability of Mr. Bostic's action and precludes summary judgment for the Airport Auto/Five Towns defendants."   

See full decision here. 

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Social Networking as a trial strategy may be the new face of litigation. Facebook, Twitter, online blogs, and LinkedIn, can tell anyone with a computer more about you than you would want them to know. What about the ethical consideration of a trial lawyer examining the social networking habits of a juror?  

The  New York County Lawyers' Association issued an opinion on this issue on May 18, 2011. The question presented was , "After voir dire is completed and the trial commences, may a lawyer routinely conduct ongoing research on a juror on Twitter, Facebook and other social networking sites? If so, what are the lawyer's duties to the court under Rule of Professional Conduct 3.5? " The County Lawyers Association concluded, "It is proper and ethical under the Rules Professional Conduct, section 3.5 for a lawyer to undertake a pretrial search of a prospective juror's social networking site, provided that there is no contact or communication with the prospective juror and the lawyer does not seek to "friend" jurors, subscribe to their Twitter accounts, send jurors tweets or otherwise contact them. 

During the evidentiary or deliberation phases of a trial, a lawyer may visit the publicly available Twitter, Facebook or other social networking site of a juror but must not "friend" the juror, email, send tweets to the juror or otherwise communicate in any way with the juror or act in any way by which the juror becomes aware of the monitoring."  The thought of any contact with a sworn juror would make any veteran trial lawyer cringe. Checking the juror's online activity after the trial commences seems very distasteful. We are not sure where all of this will lead, however, it will likely lead to trouble.   

Read full decision here. 

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Road rage was the subject of the recent decision by Judge Pastoressa in Suffolk County in the case of Bari v. Romano. (2011 NY Slip Op 51480U) decided on July 18, 2011. In this action, our office is defending a driver, who allegedly ran the plaintiff off the road causing injuries. The plaintiff intended to introduce evidence at trial that one month prior to the accident, the defendant attempted to do the same thing- "cut off" the plaintiff and run him off the road. The motion in limine was decided by Judge Pastoressa with an order precluding evidence of the alleged prior incident. "A general rule of evidence, applicable to both civil and criminal cases, is that it is improper to prove that a person did an act on a particular occasion by showing that she did a similar act on a different unrelated occasion (see, Richardson, Evidence [10th Edition], § 170,184)." The plaintiff argued the prior act should be admitted under exceptions to the general rule above, based on the issue of intent and, "common scheme or plan". Both arguments failed.

"Where guilty knowledge or a wrongful intent is in issue, evidence of other similar acts is admissible to negate the existence of an innocent state of mind. The focus in such circumstances is "not on the actual doing of the act, for the act is either conceded or established by other evidence. Rather, the element in issue is the actor's state of mind, and the evidence of other similar acts is admitted under the exception because no particular intent can be inferred from the nature of the act committed" (Matter of Brandon's Estate, 55 NY2d 206, 433 N.E.2d 501, 448 N.Y.S.2d 436). This is not the situation in the case at bar. Here, it is the doing of the act itself which is in issue. Plaintiff claims that he was cut off and the defendant denies it entirely; denies that she was in any way involved with the incident. The evidence of an alleged prior  [**3] similar act would be offered to prove the act, in violation of the general rule. It is no different than were the plaintiff to attempt to prove that a defendant ran a red light by seeking to admit evidence that the same defendant ran a red light on a prior occasion. Clearly inadmissible."

"Similarly unavailing on these facts is the common scheme or plan exception. While under this exception similar acts are offered to prove that the person did the act in issue (2 Wigmore § 304, at p 249), "mere similarity of acts is an insufficient predicate for admissibility" (Matter of Brandon's Estate, supra). There must be such a clear concurrence of common features that the acts can naturally be explained as part of an overriding general plan. In the absence of such a clear connection between the collateral act and the act in issue, the evidence should be  [*2]  excluded (Matter of Brandon's Estate, supra)."  

Read here  for full decision.