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December 2006
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February 2007

More Insurance Claim Quotes

For your reading enjoyment, I offer the following:

The following are actual statements placed on insurance forms where the car's driver attempted to summarize the details of their accident in the fewest words possible.

  • I was driving along when I saw two kangaroos copulating in the middle of the road causing me to ejaculate through the sun roof.
  • Q: Could either driver have done anything to avoid the accident? A: Travelled by bus?
  • The claimant had collided with a cow. The questions and answers on the claim form were - Q: What warning was given by you? A: Horn. Q: What warning was given by the other party? A: Moo.
  • The car in front hit the pedestrian but he got up so I hit him again.
  • When I saw I could not avoid a collision I stepped on the gas and crashed into the other car.
  • I pulled in to the side of the road because there was smoke coming from under the hood. I realized there was a fire in the engine, so I took my dog and smothered it with a blanket.

Wednesday's New York Legal News Round Up

It's the middle of the work week and time once again for the New York legal news round up.  Here are some interesting legal news headlines from the past week:

New York Lawyer Advertising Rules Are Effective As Of Thursday

The New York lawyer advertising rules go into effect on Thursday, February 1, 2007.  Are you ready?

And, there's a new article out regarding the rules from Lawyers Weekly USA entitled Changes to lawyer ads go into effect in N.Y.   

It's one for my "brag" wall, since it mentions me and Sui Generis.  How about that!

My prior posts on the new rules can be found here.

Justification Defense--Knowledge of Ability to Retreat a Required Element

A recent Third Department case, People v Soriano, 2007 NY Slip Op 00445, is yet another example of how important it is on appeal to carefully scrutinize a trial court's jury charge on the issue of justification.  I learned this lesson early on in my career when I was successful on appeal in a similar case, People v. Sierra, 231 A.D.2d 907, 647 N.Y.S.2d 891 (4th Dep't 1996).

In this case, the defendant was charged with second-degree murder and first-degree manslaughter and alleged that when he killed the victim he was defending himself and his brother, and thus his actions were justified.  The jury convicted him of manslaughter, but acquitted him of murder.

The Third Department first set forth the standard jury charge for this defense and explained the prosecution's burden of proof:

"The defendant would not be justified if he/she knew that he/she could with complete safety to himself/herself and others avoid the necessity of using deadly physical force by retreating" (CJI2d[NY] Justification: Use of Deadly Force in Defense of a Person [emphasis added]). Thus, to defeat a justification defense in a prosecution for the use of deadly physical force, the People must prove beyond a reasonable doubt, not only that it was objectively possible for the defendant to retreat "with complete personal safety," but also that the defendant was subjectively aware that it was possible to do so.

In this case, the trial court's instruction on the defense of justification was as follows:

(T)he "defense of justification does not apply...if a defendant uses deadly physical force, knowing that with complete safety to himself and others, he can avoid the necessity of using such force by retreating." That part of the charge was correct. The court did not let the matter rest there, however, but went on to restate the standard as follows: "Once again, the People have the burden of establishing, beyond a reasonable doubt, that under the circumstances, [defendant] could have retreated with complete safety to himself and to Kenny Santos"...

The Third Department held that the trial court's instruction improperly misstated the law "by eliminating the subjective component of the test, and omitting from the prosecution's case knowledge as an essential element of proof..."

Accordingly, the Court reversed the judgment of conviction in the interests of justice, even though the defendant failed to object at trial.  In my mind, that's the most unusual aspect of this decision.  A reversal in the absence of an objection to the jury charge is a rarity indeed.

Although I've not discussed it in this post, there is an interesting evidentiary issue regarding rebuttal testimony that is addressed at the end of the decision that might also be worth a quick read. 

Define That Term #183

Saturday's term was attractive nuisance doctrine, which is defined as:

n. a legal doctrine which makes a person negligent for leaving a piece of equipment or other condition on property which would be both attractive and dangerous to curious children. These have included tractors, unguarded swimming pools, open pits, and abandoned refrigerators. Liability could be placed on the people owning or controlling the premises even when the child was a trespasser who sneaked on the property. Basically the doctrine was intended to make people careful about what dangerous conditions they left untended. Some jurisdictions (including California) have abolished the attractive nuisance doctrine and replaced it with specific conditions (e.g. open pit and refrigerators) and would make property owners liable only by applying rules of foreseeable danger which make negligence harder to prove.

Carlos got it right, although the second half of his definition is not included in the particular definition offered at

Today's term is:


As always, educated guesses are welcome, but no dictionaries, please.

Sue Who?

I was skimming over Second Department decisions this morning and the list of counsel for the parties in this case, DeVita v Macy's E., Inc. 2007 NY Slip Op 00483 jumped out at me.  In fact, it caused me to experience some unpleasant flashbacks to a few cases that I was involved in a few years back: 

Carroll, McNulty & Kull, LLC, New York, N.Y. (Sean T. Burns of counsel), for defendants third and second third-party plaintiffs appellants-respondents in Action No. 1.
Lawrence, Worden & Rainis, P.C., Melville, N.Y. (Roger B. Lawrence and Mary Beth Reilly of counsel), for third-party defendant respondent-appellant in Action No. 1/appellant in Action No. 2
Knoller Companies, Inc. O'Connor, Redd & Sklarin, LLP, White Plains, N.Y. (Joseph T. Redd and Sandy Mitchell of counsel), for second third-party defendant respondent-appellant in Action No. 1/appellant in Action No. 2
Hutton Electrical Contracting Corp. Ravi Batra, P.C., New York, N.Y., for plaintiffs-respondents in Action No. 1 and respondents in Action No. 2.

Sometimes it seems as if these cases take on a life of their own and wading through the parties and their relationships is nearly as difficult as sorting through the underlying legal issues.  It's amazing how a Labor Law claim can result in a tangled mess of defendants wearing all sorts of different hats, isn't it?    

Prosecutors--High as a Kite

It seems that our prosecutorial colleagues are (allegedly of course) drowning their sorrows in the bottle and then hitting the road:

Will they ever learn?  I'm forever hopeful that one day our colleagues who represent the "People" will learn to behave themselves as those of us in the private bar do.  Or, better yet, perhaps they'll model their behavior after that of our honorable judiciary.

The Monday New York Blawg Round Up

It's Monday.  And, not only is it the start of the work week, it's also time for the weekly round up of posts from my fellow New York legal bloggers.  So, without further ado, the posts:

Indignant Indigent:

It's No-Fault of New York

Judicial Reports:

New York Civil Law:

New York Personal Injury Law Blog:

New York Small Business Law:

No-Fault Paradise

And, finally, Blawg Review #93 is up at Cyberlaw Central.  Two of my posts are mentioned.  Check it out.

Was Insured's Delay In Notifying Insurer Reasonable?

In a recent Third Department decision, Klersy Bldg. Corp. v Harleysville Worcester Ins. Co., 2007 NY Slip Op 00360, the Court concluded that, at the very least, there was an issue of fact as to whether the insured's delay in notifying the insurer of a claim was reasonable.

In Klersy, the employee of a sub-contractor fell and was injured while working on a project for which the plaintiff was the general contractor.  Although the plaintiff's president was informed of the fall on the day of the accident, the plaintiff did not notify its insurer of the claim until 4 months later, when it was served with a Summons and Complaint.  Shortly thereafter, the plaintiff's insurer denied coverage on the grounds that the plaintiff had failed to notify it of the occurrence "as soon as practicable."  The plaintiff then commenced a declaratory judgement action seeking to compel its insurer to defend and indemnify it in the underlying lawsuit.

The Court began its analysis by stating the applicable law:

Where a policy of liability insurance requires that notice of an occurrence be given 'as soon as practicable,' such notice must be accorded the carrier within a reasonable period of time...Failure to comply with the notice requirement vitiates the contract of insurance and, under such circumstances, the insurer is not required to demonstrate actual prejudice from the delay in order to successfully disclaim coverage...However, omitting to provide timely notice may be excused in certain situations, such as where the insured has 'a good-faith belief of nonliability,' provided that belief is reasonable...Although the insured bears the burden of proving that there was a reasonable excuse for a delay, the question of such reasonableness is generally a question of fact for a jury...(Internal citations and quotations omitted).

The Court then considered the plaintiff's explanation for the delay.  In support of its claim that the delay in notifying its insurer was reasonable, the plaintiff alleged that it:

(D)id not immediately contact defendant because Clegg was employed by Donato, Donato was supervising Clegg when the accident occurred, and Donato had provided plaintiff with proof of both liability and workers' compensation coverage prior to the construction project...(and) any potential claim would be covered by Donato's insurance...(D)uring the company's nearly 50 years in business, it had minimal experience with job site accidents that resulted in claims...

The Court concluded that the issue of reasonableness was for the jury to decide in light of the particular facts of this case and thus upheld the trial court's denial of the insurer's motion for summary judgment.

I think the Court made the correct decision in this case.  But, I also think that the insured was awfully lucky.  Having been in business for nearly 50 years, the plaintiff should have known to immediately notify its insurer of the fall, even if the company hadn't had much experience with claims.  I've been involved in cases where the insured had far better excuses for a late notice of claim than the plaintiff had in this case and yet was unable to persuade the judge of the reasonableness of the excuse.   After all, like beauty, reasonableness is in the eye of the beholder!