 RECENT CASES AND DECISIONS HSBC USA Inc. (f/k/a Republic New York Corporation) v. Gulf Insurance Co., (Supreme Court, New York County, Freedman, J.) Index No. 603413/2004, November 27, 2006 See Fidelity >> Summary: Fidelity bond coverage litigation, $550 million claim on $100 million financial institution bond. Decision and Order: Justice Freedman of the Commercial Division granted summary judgment in favor of fidelity insurers on several independent grounds, including:
National Fuel Gas Distribution v. Hartford Fire Insurance Company, 28 A.D. 3d 1169, 814 N.Y.S.2d 436 (4th Dep’t 2006) See Surety >> Summary: contract surety litigation on $3.8 million payment bond claim. Decision and Order: The Fourth Department reversed the lower court's denial of Hartford's motion for summary judgment. Hartford issued a bond guaranteeing the payment obligations undertaken by its principal, Iroquois, under a service contract with National. The Appellate Division held: National's delay in giving notice to Hartford of Iroquois's payment defaults breached the bond's requirements. Represented: Surety, by Monroe Weiss and Stephen H. Marcus F & V Mechanical Plumbing & Heating Corp. v. Laquila Construction, Inc., Supreme Court., Queens County, Index No. 3579/99, Jan. 28, 2005. Summary: contract surety litigation on performance bond claim in excess of $2 million. Decision and Order: Hon. Peter J. Kelly, J.S.C., held: subcontractor's surety prevailed against general contractor as a result of the contractor's failure to comply with a bond notification requirement prior to replacing the subcontractor. Represented: Surety. Hartford Fire Insurance Company v. Heritage Plumbing & Heating, Inc., Supreme Court, New York County, Index No. 602258/04, Feb. 25, 2005. Summary: action to compel deposit of collateral under indemnity agreement. Decision and Order: Hon. Marylin G. Diamond, J.S.C., held: subcontractor's surety awarded summary judgment requiring its indemnitor to comply with the collateral deposit provision of the indemnity agreement and deposit with the surety $485,233.27 as collateral, regardless of any factual issues of whether the indemnitor was in default on the bonded construction contract. Represented: Surety. Lawrence Group, Inc. v. Hartford Casualty Insurance Co., 1:02-cv-725 (N.D.N.Y. Jan. 17, 2006), dealt with the issues of discovery and suit limitation under a commercial crime policy. Hartford moved for summary judgment on the grounds that suit had not been filed within two years of discovery of loss, as the policy's suit limitation provision required. The court granted Hartford's motion, rejecting plaintiff insured's argument that it had not "discovered" the loss of funds diverted from employee benefit plans until it was actually held liable for them. The decision instead found that the policy phrase "discover the loss" was unambiguous and could only mean the time when the insured learned of the damage for which it claimed the insurer was liable. Arthur Lambert represented defendant Hartford. Wall Street Discount Corp. v. Hartford Fire Insurance Co., 2004 WL 951974 (S.D.N.Y. 2004), addressed discovery and suit limitation under a financial institution bond. Hartford was awarded summary judgment dismissing plaintiff insured's complaint on the grounds that the action had not been commenced within two years of discovery of loss, as provided by the bond's limitation provision. The court held that discovery had occurred when plaintiff first learned that one of the three allegedly forged and altered checks at issue had been dishonored. The decision also included a useful finding rejecting the insured's attempt to argue that the three checks represented three discrete losses with three separate discovery dates, rather than a single loss. Arthur Lambert and Diane Duszak represented defendant Hartford. Richard Dubi, as the Administrator of the Estate of Stacy Dubi, deceased, and Richard Dubi, individually v. Jericho Fire District and Richard Schiraldi, Supreme Court, Suffolk County, Index No. 01-13610. Summary: Action for wrongful death brought against volunteer fire department member -- operator of fire engine, and fire district. Decision and Order: Hon. Mary M. Werner, J.S.C., granting summary judgment in favor of defendants, holding that operator of the vehicle was not acting in "reckless disregard" for the safety of others, within the statutory limits of Vehicle and Traffic Law § 1104 and General Municipal Law § 205-b. Complaint dismissed as against the District as well. Appeal: Decision below unanimously affirmed, without oral argument, by Appellate Division, Second Department, which also denied plaintiffs' motion for reargument/leave to appeal. Represented: Defendant operator (co-counsel on motion; counsel on appeal). Evangeline Handy v. 6 Gramatan Avenue, LLC., Supreme Court, Westchester County, Index No. 11149/04. Summary: Action for alleged breach of commercial lease, conversion and interference with contract. Decision and Order of Hon. Linda S. Jamieson, J.S.C., granting motion for summary judgment dismissing complaint on grounds that plaintiff failed to make prima facie case for conversion, breach of commercial lease or interference with contract; eviction and alleged removal of tenant's collateral security does not constitute interference with loan agreement. Represented: Moving Defendant. Alexander Skylarsky, as Administrator of the Estate of Sofia Skylarsky v. New Hope Guild Center, 2005 WL 2241749 (N.Y. Slip Op. 51450 (U), S.Ct., Kings (Rosenberg, Gerard J.), Decision and Order, July 20, 2005. Summary: In case of first impression, court granted medical malpractice defendants leave to amend their answer to assert a counterclaim against plaintiff, decedent's husband, for contribution and indemnity based upon breach of spousal duty to provide medical care in keeping with doctors' instructions. Represented: all medical defendants. BACK |
