Will This Bill Make It's Way Out of Committee?

New York City Council Members Eric A. Ulrich, Fernando Cabrera, Andy L. King, and  Paul A. Vallone, have introduced a bill to amend the vicarious liability provisions of Administrative Code Section 

7-210, to exclude liability for "Houses of Worship". The new bill will expand the residential exemption for owner occupied one, two or three family homes to read as follows: 

Notwithstanding any other provision of law, the city shall not be liable for any injury to property or personal injury, including death, proximately caused by the failure to maintain sidewalks (other than sidewalks abutting one, two or three family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes or sidewalks abutting real property that is used as a house of worship) in a reasonably safe condition. 

The bill has been "Referred to Committee" and is strongly supported by the religious community in the City. Stay tuned to see if the bill makes its way out of Committee. 

Read the pending bills here and here.

Conflict of Interest

Shelby v. Blakes, No. 2014-03887, 2015 WL 3604439, (N.Y. App. Div. June 10, 2015), involved a fee dispute between lawyers where the incoming counsel alleged ethical violations against the outgoing counsel, specifically the failure to inform the client of a potential conflict of interest with one attorney representing the driver and a passenger in the same lawsuit. Here, the original attorney claimed there was no conflict as this was a classic "hit in the rear" scenario and the counterclaim against the driver was specious.

The Appellate Division rejected the argument stating "Borda contends that since Earl was a passenger in a stopped vehicle which was struck in the rear, the driver of the stopped vehicle was clearly not at fault, and there was no conflict of interest (see Sayyed v. Murray, 109 AD3d 464). However, once the defendant asserted a counterclaim, the pecuniary interests of the driver conflicted with those of the passenger (see Kyung Seong Kim v. Metropolitan Suburban Bus Auth., 2008 N.Y. Slip Op 30858[U] [Sup Ct N.Y. County]; see also Alcantara v. Mendez, 303 A.D.2d 337). Therefore, the appellant's motion to disqualify Borda from receiving a portion of the attorneys' fees should have been granted, and the cross motion for an allocation of attorney's fees should have been denied."

"The general rule is that an attorney is not entitled to a fee in a personal injury action if the attorney violated the Rules of Professional Conduct (12 NYCRR 1200.0) by representing both the driver of an automobile involved in a collision and a passenger in that vehicle (see Quinn v. Walsh, 18 AD3d 638; Pessoni v. Rabkin, 220 A.D.2d 732; see also Doviak v. Finkelstein & Partners, LLP, 90 AD3d 696, 699). Rule 1.7(a) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides, in pertinent part, with respect to conflicts of interests involving current clients, that a lawyer shall not represent a client if a reasonable lawyer would conclude that "the representation will involve the lawyer in representing differing interests" (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7[a][1] ). Pursuant to rule 1.7(b) of the Rules of Professional Conduct (22 NYCRR 1200.0) the potential conflict may be waived if the lawyer reasonably believes that he or she will be able to provide competent and diligent representation to each affected client, the representation is not prohibited by law, the representation does not involve the assertion of a claim by one client against the other in the same litigation, and each affected client gives informed consent, confirmed in writing."

Read the decision here.

Are Snowmobiles "Motor Vehicles" Under SUM Coverage?

SUM coverage and snowmobiles were on the menu of topics decided by the Appellate Division Second Department on May 27, 2015 in State Farm Mut. Auto. Ins. Co. v. Jones, 128 A.D.3d 1074 (N.Y. App. Div. 2015).

William T. Jones sustained injuries in a snowmobile accident in Lewis County. The snowmobile that he was operating collided with a snowmobile owned by non-party Steven Roy and insured by Nationwide Insurance. The snowmobile that Jones was operating was owned by non-party Robert Perino and insured by the petitioner, State Farm Mutual Automobile Insurance Company (hereinafter State Farm). Jones settled for the $50,000 policy limit of the Nationwide Insurance policy and, after due notice, sought to recover an additional $50,000 under the supplemental underinsured motorist (hereinafter SUM) provisions of Robert Perino's policy with State Farm (hereinafter the policy). State Farm denied coverage on the ground that Jones was not an insured under the SUM provisions of the policy. Orange County Supreme Court Judge Colangelo found in favor of State Farm, granting a permanent stay of the demanded arbitration. 

The Appellate Division reversed. State Farm's argument, which was accepted by the Supreme Court, was that a snowmobile is not a "motor vehicle" as that term appears in the SUM endorsement. State Farm relied on the definition of "motor vehicle" contained in the Vehicle and Traffic Law, which specifically excludes snowmobiles (see Vehicle and Traffic Law §§ 125, 2229). Thus, Jones was not insured for SUM coverage because he was not occupying a motor vehicle at the time of the accident.

The Appellate Court noted that the policy only covered one vehicle, the snowmobile. "We find that the policy, when read as a whole, is ambiguous as to whether the term "motor vehicle" in the SUM endorsement refers to the snowmobile, the only vehicle covered by the policy. Contrary to State Farm's contention, and the Supreme Court's determination, this ambiguity must be resolved "against the insurer and in favor of coverage" (Nationwide Mut. Ins. Co. v CNA Ins. Co., 286 AD2d 485, 487; see Shants, Inc. v Capital One, N.A., 124 AD3d at 759), without reference to the definition of "motor vehicle" set forth in the Vehicle and Traffic Law. Accordingly, the Supreme Court should have denied that branch of the petition which was to permanently stay arbitration on the ground that Jones was not covered by the SUM provisions of the policy at the time of the accident."

Read the decision here.

Who Wins, the Brother or the Husband?

A recent case in the Second Department had all the makings of a bar exam question. Husband and wife were married from 1995 to 2012, when the wife died. In 2008, the wife took out a life insurance policy naming the husband as beneficiary. In 2009, the husband filed for divorce. In 2012, the wife changed the beneficiary under the policy to her brother. In 2012, before the judgment of divorce was entered, the wife dies. Who gets the proceeds from the policy. Brother or husband? The lower court found for the husband and the brother appealed.

The husband wins. (See Reliastar Life Ins. Co. of New York v. Cristando, No. 2014-01064, 2015 WL 3478040 (N.Y. App. Div. June 3, 2015).

"The Supreme Court properly directed the plaintiff to pay the proceeds of the decedent's life insurance policy to Cristando rather than to Lozada because, by changing the primary beneficiary of her life insurance policy from Cristando to Lozada while the divorce action was still pending, the decedent violated the automatic orders (see Domestic Relations Law § 236[B][2]; see also Sykes v. Sykes, 35 Misc.3d 591, 595). Lozada's remaining contentions are either not properly before this Court or without merit. Accordingly, the order is affirmed insofar as appealed from. "

Read the decision here.