An insurance carrier's duty to defend.

The carrier's duty to defend arises whenever the allegations in the complaint state a cause of action that gives rise to the reasonable possibility of recovery under the policy. If any of the claims against an insured arguably arise from a covered event, the insurer is required to defend the entire action.  There is a duty defend if the allegations of the complaint are even potentially within the language of the insurance policy.

1416 Coney Is. Realty, LLC v. Wesco Ins. Co., NY Slip Op 03320 (2d Dep't June 21, 2023)

Here is the decision.

Contract law.

A contract that assumes an obligation to indemnify must be strictly construed, and the court will not read into the agreement a specific obligation where none is plainly stated.

Tavarez v LIC Dev. Owner L.P., NY Slip Op 03318 (1st Dep't June 20 2023)

Here is the decision.

Contract law.

On the breach of contract claim, plaintiffs are limited to out-of-pocket damages for any breach of the parties' letter of intent, which was merely an agreement to agree.

Cresco Labs N.Y., LLC v. Fiorello Pharms., Inc., NY Slip Op 03305 (1st Dep't June 20, 2023)

Here is the decision.

Respondeat superior.

The doctrine of respondeat superior makes an employer vicariously liable for torts committed by an employee acting within the scope of the employment if the tortious conduct is generally foreseeable and a natural incident of the employment. An employee's actions fall within the scope of employment where the purpose in performing the actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business. An employee's action also falls within the scope of employment when it is performed while the employee is engaged generally in the employer's business, or if the act may reasonably be said to be necessary or incidental to the employment. Employer responsibility is broad, especially where the employee's activity may be regarded as incidental to the furtherance of the employer's interest. 

An employer cannot be held vicariously liable for its employee's alleged tortious conduct if the employee was acting solely for personal motives unrelated to the furtherance of the employer's business at the time of the incident. Generally, whether an employee was acting within the scope of his employment is a question of fact for the jury.

Cobena v. Antonioli, NY Slip Op 03221 (2d Dep't June 14, 2023_

Here is the decision.

Res ipsa loquitur.

For the doctrine of res ipsa loquitur to apply, a plaintiff must establish three conditions: the event must be of a kind that ordinarily does not occur in the absence of someone's negligence; it must be caused by an agency or instrumentality within the exclusive control of the defendant; and it must not have been due to any voluntary action or contribution on the part of the plaintiff.  If the plaintiff satisfies the burden of proof on these three elements, the fact-finder may infer negligence. The exclusive control element is not a rigid rule and it may be applied in circumstances when the accident occurred after the instrumentality left the defendant's control, if it is shown that the defendant had exclusive control at the time of the alleged act of negligence. The plaintiff does not have to eliminate all other causes, but, rather, must show that their likelihood is reduced so that the defendants' conduct is more probably the cause. The plaintiff must show that the defendant's control was sufficiently exclusive to fairly rule out some other agency causing the purported defect.  

Bicchetti v. Atlantic Toyota, NY Slip Op 03219 (2d Dep't June 14, 2023)

Here is the decision.

Appellate practice.

Plaintiffs abandoned their appeal from the dismissal of their claims for breach of fiduciary duty and unjust enrichment by failing to make any arguments as to those claims in their appellate briefs.

Weis v. Rheem, Bell & Freeman, LLP, NY Slip Op 03297 (1st Dep't June 15, 2023)

Here is the decision.

Contract law.

Even if a party has not expressly breached a contract, it may breach the implied duty of good faith where it exercises a contractual right as part of a scheme to deprive the other party of the benefit of its bargain. A plaintiff's breach of the implied covenant claim is not duplicative where it seeks redress for injuries that are separate from the breach of contract claim. 

Barnett v. Berkowitz, NY Slip Op 03286 (1st Dep't June 15, 2023)

Here is the decision.

Service of process.

Ordinarily, a process server's affidavit constitutes prima facie evidence that the defendant was validly served. Bare and unsubstantiated denials of receipt of the summons and complaint are insufficient to rebut the presumption of proper service. However, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server's affidavit, and necessitates an evidentiary hearing.

Aikens v. Kouchnerova, NY Slip Op 03218 (2d Dep't June 14, 2023)

Here is the decision.

Sanctions for spoliation.

Defendants' motion for sanctions is granted to the extent of ordering an adverse inference instruction for plaintiff's failure to preserve text messages to and from a former co-worker. The lost texts were relevant to contested issues in this action, and plaintiff acted negligently in failing to preserve them when she purportedly broke her phone.

Shamash v. David Bocchi, Inc., NY Slip Op 03213 (1st Dep't June 13, 2023)

Here is the decision.

Leave to amend.

A motion for leave to amend the complaint will be denied where the moving papers do not include the proposed amendment showing the changes or additions, pursuant to CPLR 3025[b].

Wiltz v. New York Univ., NY Slip Op 03215 (1st Dep't June 13, 2023)

Here is the decision.

Appellate practice.

The appeal is dismissed because plaintiff failed to file a proper appellate record. Plaintiff failed to include the underlying motion to dismiss, her opposition to that motion, and the exhibits annexed to the parties' submissions, pursuant to CPLR 5526. Without the benefit of a proper record, the Appellate Division cannot review this matter, as the trial court granted the motion to dismiss based in part on the documentary evidence annexed to the parties' submissions.

Woodward v. City of New York, NY Slip Op 03216 (1st Dep't June 13, 2023)

Here is the decision.