complaint dismissed; summary judgment in favor of defendant Speed
Michael O'Brien represented defendant Speed Car Service, Inc. The Plaintiff suffered a fractured leg after Speed allegedly dropped her off in a dangerous location. Summary Judgment was granted in favor of defendant Speed because (a) plaintiff could not identify that it was Speed who provided her transportation and (b) plaintiff fell in a hole in the street which was not created by defendant Speed.
A to Z Master Plumbing v. Balikcioglu
Jun 26, 2013
Arbitration decision in favor of A to Z Master Plumbing
Michael O'Brien represented A to Z Master Plumbing. This matter arose out of a contract between A to Z (subcontractor) and Balikcioglu (owner/general contractor) for the supply and installation of plumbing work on 83rd Street in Brooklyn, NY. A to Z performed and completed various plumbing work at the site; Balikcioglu failed to pay the full contract price. At arbitration, the Arbitrator found in favor of A to Z in the amount of $24,966.38.
Jimenez v. Tesoriero
Dec 14, 2012
Jury verdict for plaintiff in the amount of $41,670.
This was a contractual dispute where I represented the plaintiff. The parties entered into a mutual release and settlement agreement after the plaintiff was assaulted and injured at the defendant's premises. The defendant failed to pay plaintiff the full amount. This action was brought to enforce the agreement.
Junya Adames v. Nationwide
Lawsuits and disputes
Oct 07, 2008
Summary Judgment granted in favor of plaintiff
Junya Adames, appellant,
Nationwide Mutual Ins. Co., respondent.
Michael D. Ribowsky, Richmond Hill, N.Y., for appellant.
Epstein, Harms & McDonald, New York, N.Y. (Michael P.
O'Brien of counsel), for respondent.
The plaintiff, Junya Adames, allegedly was injured when she fell after slipping on ice on a sidewalk in front of a commercial building owned by Charles Bobrowsky. At the time of the accident, Bobrowsky was covered under a homeowners insurance policy and a personal umbrella insurance policy issued by the defendant, Nationwide Mutual Fire Insurance Company (hereinafter Nationwide). The homeowners policy, which had a personal liability limit of $300,000 per occurrence, provided both property coverage for Bobrowsky's residence and personal liability coverage, while the umbrella policy provided excess liability coverage. Nationwide sent a disclaimer letter to Bobrowsky and Adames's attorney, denying coverage under both policies. The disclaimer letter relied upon the definition of "insured location" appearing in the homeowners policy, and the definition of "business property," as well as an exclusion applicable to "occurrence[s] arising out of the business pursuits or business property of an insured," appearing in the umbrella policy.
Adames commenced a personal injury action against Bobrowsky, and obtained a default [*2]judgment against him in the amount of $152,505.50. Adames served the judgment upon Bobrowsky and Nationwide, and when the judgment remained unsatisfied for more than 30 days, Adames commenced this action, pursuant to Insurance Law Â§ 3420(a)(2), to recover the amount of the judgment from Nationwide. In opposition to Adames's motion for summary judgment on the complaint, Nationwide cited two exclusions appearing in the homeowners policy, one relating to injuries "arising out of business pursuits of an insured," and the other relating to injuries "arising out of the rental or holding for rental of any part of any premises by an insured." Adames now appeals from so much of an order of the Supreme Court as denied her motion for summary judgment. On appeal, Nationwide relies exclusively upon the two exclusions appearing in the homeowners policy.
A notice of disclaimer "must promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated" (General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864; see Insurance Law Â§ 3420[d]), and "[a]n insurer's justification for denying coverage is strictly limited to the ground stated in the notice of disclaimer" (Shell v Fireman's Fund Ins. Co., 17 AD3d 444, 446; see Pawley Interior Contr., Inc. v Harleysville Ins. Cos., 11 AD3d 595; Prus v Glencott Realty Corp., 10 AD3d 390). Thus, an insurer waives any ground for denying coverage that is not specifically asserted in its notice of disclaimer, even if that ground would otherwise have merit (see General Acc. Ins. Group v Cirucci, 46 NY2d at 864; Vacca v State Farm Ins. Co., 15 AD3d 473; Pawley Interior Contr., Inc. v Harleysville Ins. Cos., 11 AD3d at 596).
In its disclaimer letter, Nationwide relied upon the homeowners policy's definition of "insured location," which was not a valid basis for denying coverage, since Adames's accident triggered the policy's liability coverage, which was not limited to any particular location, not its property coverage. Nationwide further relied upon the umbrella policy's definition of, and exclusion relating to, "business property." The provisions of the umbrella policy are not relevant in the instant action, since the judgment Adames seeks to have satisfied does not exceed the liability limit of the homeowners policy, and thus the umbrella policy's excess liability coverage is not triggered. The homeowners policy's exclusions relating to business pursuits and rental property, upon which Nationwide now relies, were not mentioned in Nationwide's disclaimer letteand thus have been waived.
Lincoln General Ins. Co. v. Nationwide Mutual Ins. Co., et. al.
Sep 25, 2008
Abitration decision in favor of Nationwide Mutual Ins. Co. because there was a valid disclaimer of coverage. Lincoln General sought reimbursment/indemnification for the $175,000 paid in settlement of the underlying lawsuit. The arbitrator found that there was a valid disclaimer of coverage due to late notice because notice was first given over two (2) years post accident.
Pena v. Spiegel
Jul 23, 2008
Plaintiff's verdict following trial in Supreme NY
Pedestrian knockdown at the intersection of Essex Street and Rivington Street in Manhattan. Plaintiff's right ankle sustained trimalleolar fracture, requireing ORIF surgery. Plaintiff was hospitalized for one month and was wheelchair-bound for 4 weeks. The jury awarded $105,000 for past medical expenses, $50,000 for future medical expenses, $50,000 for past pain and suffering, and $150,000 future pain and suffering.
Miller v. Kardamis, et. al.
Damages-only trial in Supreme Court, New York County before Hon. Donna Mills.
Injuries claimed: T2 endplate compression fracture; right shoulder torn labrum (SLAP tear); right 6th rib fracture:
- Past pain and suffering: $25,000
- Past loss of earnings: $0
- Past medical expenses: $19,000
- Future pain and suffering: $10,000 (41 years)
- Future loss of earnings: $52,500 (15 years)
- Future medical expenses: $5,000
- Loss of consortium: $0
This was an action for personal injuries plaintiff allegedly sustained when he slipped and fell due to an ice condition on a sidewalk in front of England's one-family home. The home was owned by defendant England and occupied by his father.
England's summary judgment motion was granted. A party may only be held liable for a hazardous condition created on its premises as a result of the accumulation of snow or ice during a storm upon a showing that it had actual or constructive notice of the dangerous condition and that a reasonably sufficient time had lapsed since the cessation of the storm to take protective measures (see Krichevskaya v. City of New York, 2006 NY Slip Op 4801, Robles v. City of New York, 255 AD2d 305). Defendant England, in support of the motion for summary judgment has established through deposition testimony that neither he nor his father had actual or constructive knowledge of the icy condition in front of the home on the date of the accident, thereby shifting to plaintiff the burden of going forward to demonstrate a triable issue of face (see Zuckerman v. City of New York, 49 NY2d 557). Plaintiff has submitted no contrary evidence on this issue.
Finally, plaintiff's attempt to raise an issue of fact with regard to England's ownership interest is without merit. It was undisputed that the residence was a one-family home used exclusively for residential purposes. the applicable Administrative Code provision for owner liability does not apply to "one, two or three-family residential real property that is...in whole or in part, owner occupied, and...used exclusively for residential purposes" (see Administrative code of the City of New York, 7-210(b). Since it is well established that a life estate is tantamount to ownership of the property, entitling the estate holder to all of the burdens and benefits of ownership (see Mayer v. Mayer 11 Misc. 3d 1051A), no liability lies with respect to either the owner or occupant.