Decisions

William A. Gamble, Jr., et. al. v J. A. Faccibene & Associates, et. al., New York County Index No.650024/2007. Insured sued to recover under several insurance policies in connection with a burglary loss. The suit included a claim for personal injuries (heart problems and depression) allegedly sustained as a result of the carriers' refusal to pay the claims. Our motion to dismiss the consequential injury claims was granted by Judge Stallman, who held that there was no right of recovery for mental distress related injuries resulting from breach of contract.

Chez Monique Restaurant, inc. v The Charter Oak Fire Insurance Co., Westchester County Index No. 6080/2007. Insured commenced suit on on a fire policy before complying with the carrier's demand for an Examination Under Oath. We moved to dismiss the action as premature. Although the examination was conducted after the action was filed, Judge Donovan granted the motion to dismiss based on the insured's failure to furnish documents demanded in accordance with the policy conditions.

The concept of "Actual Cash Value" Confused about ACV valuation in first party property claims? The current state of the law in New York regarding this issue is discussed in detail in a Focus paper prepared by Dennis M. Perlberg, Esq. and Gina M. Fortunato, Esq. for publication by the New York State Bar Association.

Uniondale Realty Associates v The Hartford Insurance Company, et. al., Nassau County Index No. 585/2006. Insured commenced suit to recover under a property policy for the collapse of its plumbing system caused by the improper installation of the hanger system supporting the pipes. We moved for summary judgment on behalf of the insurer based the policy exclusions relating to faulty workmanship and inherent vice. Judge Phelan granted the motion and rejected the insured's contention that the pipe damage was covered as an "ensuing loss".

Boulder Apartments, LLC v Greater New York Mutual Insurance Company, Civil Court, New York County Index No. 54410/2004 Insured brought suit to recovery under his fire insurance policy. The case was tried before Judge Jaffe. We moved to dismiss at the conclusion of the insured's case based on the carrier's previous payment of the amount set forth in the insured's proof of loss. Judge Jaffe held that the payment constituted an accord and satisfaction and dismissed the suit.

Collapse provisions in First Party Policies See the attached presentation for a discussion of issues that routinely arise in connection with claims submitted under the standard collapse provision.

Penna v Peerless Insurance Company, 2007 WL 2769668 (WDNY) Insured's suit to recover under a homeowners Policy for water and mold damage was barred by the policy suit limitation provision despite an extensive claims investigation which included several partial payments and an examination that was conducted after the limitation period expired.

Leboeuf v Safeguard Insurance Company, Westchester County Index No. 09202/2004 Insureds sued their homeowners insurance carrier and a remediation company retained by the carrier to recovery for personal injuries allegedly sustained as a result of their exposure to mold conditions exacerbated by the handling of their water damage claim. In granting summary judgment to the defendants, the court held that the insureds were unable, as a matter of law, to demonstrate a causal connection between their mold exposure and their symptoms using a methodology that is generally accepted in the scientific community. If upheld on appeal, this decision will make it extremely difficult for claimants to establish that exposure to indoor mold produces lasting injuries.

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Last revised: November 30, 2007