In Szczukowski v. Progressive Northeastern Insurance Company, 2012 NY Slip Op 07530 (4th Dept. 2012), insurer appealed from a judgment declaring that it was obligated to provide insurance coverage to its insured in the underlying personal injury action.

The Appellate Division reversed the lower Court's decision and found that the insured did not provide any notice of the accident until he received a summons and complaint in the underlying action and provided it to his agent. Furthermore, the insured should have known that because of the traffic violation of which he was cited and because the plaintiff had sustained serious injuries, a claim was likely.

Finally, the insured was not entitled to coverage as plaintiff did not exercise his independent right to notify the insurer of the accident. Plaintiff promptly sought legal counsel, however, he did not attempt to ascertain the identity of the insurer and he did not notify the insurer of the accident.

In Small v. Caprara, et al, 2012 NY Slip Op 07434 (4th Dept. 2012), plaintiff commenced an action as a result of a wrongful death that occurred when the decedent was lighting a pilot light on a fireplace and an explosion occurred.

Defendant Robertshaw Controls manufactured the valve on the fireplace. The valve was designed to stop the flow of gas in the event of pilot outage. Robertshaw moved for summary judgment dismissing the complaint against it on the ground that plaintiff could not establish that any defect in the valve was a substantial cause of the accident.

Robertshaw submitted evidence that the valve in question was tested and that there was no evidence of its failure to function. Plaintiff did not provide any proof of her own that the valve was defective. Plaintiff relied on the fact that the accident occurred to rebut Robertshaw's evidence.

The Appellate Division upheld the lower Court's decision finding that summary judgment was warranted in favor of Robertshaw because in order to proceed in the absence of evidence identifying a specific flaw, the plaintiff was required to prove that the product did not perform as intended.

In Sue/Perior Concrete and Paving, Inc. v. Seneca Gaming Corporation, et al, 2012 NY Slip Op 06671 (4th Dept. 2012), plaintiff commenced an action against Seneca Gaming Corporation, Seneca Niagara Falls Gaming Corporation and 17 individual defendants (all officers or directors of tribal corporate entities). The complaint alleged that the defendants interfered with the contracts between the plaintiff and two Seneca Nation of Indians related entities.

In lieu of answering the complaint, defendants moved to dismiss the complaint on the ground of sovereign immunity from suit. The lower Court granted the motion with respect to the Seneca Niagara Falls Gaming Corporation and the Seneca Gaming Corporation, but denied the motion with respect to the individual defendants.

The Appellate Division held that the complaint should be dismissed against all individual defendants as well as the corporations because sovereign immunity from suit extends to officers and directors of tribal entities acting in their official capacity.

In Hint v. Vaughn, et al, 2012 N.Y. Slip Op. 07806 (4th Dept. 2012), plaintiff commenced an action as a result of injuries he sustained in a motor vehicle a00ccident. Defendants moved for summary judgment to dismiss the complaint on the ground that plaintiff did not sustain a serious injury. The lower Court denied defendants' motion in its entirety.

After considering whether plaintiff satisfactorily established triable issues of fact as to other criteria of serious injury, the Appellate Division concluded that the defendants failed to establish a prima facie showing with respect to the 90/180 day category.

The affirmation of defendants' examining neurologist did not relate his findings to plaintiff's 90/180 day claim and plaintiff's deposition testimony (which defendants submitted) was insufficient to establish that plaintiff did not suffer the requisite disability for 90 days following the 180 days after the accident.

Prepared by Katy M. Hedges