Steven practices in the areas of insurance coverage litigation and professional liability, representing numerous insurers and a variety of professionals (including attorneys, agents, brokers, accountants and others) before the state and federal courts of New York. He has lectured at several New York State Bar and other seminars on insurance coverage issues and professional liability litigation.
Victories in the area of insurance coverage litigation include:
•Netherlands Insurance Company v US Underwriters Ins Co., 14 Civ 3568 (NSR) (JSM), Judge Roman – in December 2015 – upheld the disclaimer of coverage under an exclusion for injuries to employees of a contractor applicable to all insureds under the policy issued by US Underwriters.
•Nationwide Mutual Ins. Co. v US Underwriters Ins. Co., Sup NY 161856/2014, Justice Reed – in November 2015 – dismissed, on res judicata and collateral estoppel grounds, an attempt by Nationwide to collect on a $952,000 judgment against the named insured of US Underwriters on a construction accident claim at a work site involving contractors insured by each of the two insurers.
•Vandanyan v United National Specialty Ins. Co., 12 Civ 4329 (FB) (JO), Judge Block – in October 2015 – dismissed a lawsuit filed by a plaintiff seeking to recover the balance in excess of $750,000 from the insurer of a property owner after a default judgment and assignment of rights to pursue the insurer in the insurer’s exposure was voided by the partial payment, general release and discontinuance of the underlying lawsuit with a satisfaction of the judgment.
•Tower v Einhorn, the Appellate Division Second Department – in September 2015 – denied Tower the ability to enforce a denial of coverage that was challenged by plaintiffs and co-defendants from the underlying bodily injury action in that Tower had not proven the applicability of its disclaimer grounds by admissible evidence notwithstanding the default in the coverage case by Tower’s insured.
•East Ramapo Central School District v New York Schools Insurance Reciprocal, Sup Nassau 600963/2013, Justice Bucaria – in June 2015 – the recovery of an insured school district from its insurer for defense costs as to an underlying lawsuit, limited to $187,500 plus interest, rejecting proofs of legal payments in excess of $2 million.
•Mt. Hawley Ins. Co. v Penn-Star Ins Co., Sup NY 161321/2014, Justice Kern – in May 2015 – dismissed by operation of res judicata and collateral estoppel, a lawsuit by Mt. Hawley trying to collect approximately $663,000 from Penn-Star by challenging the disclaimer and prior adjudication upholding the denial of coverage as to Penn Star’s insured.
•Menser’s v Harleysville et al., Superior Court NJ, J. McMaster – in April 2015 – sustained disclaimer premised upon property damage exclusions as to claims grounded upon improper work performed by insured contractor.
•Chappaqua v Philadelphia Ins. Co., Sup Nassau 8717/2012, Justice Brown – in October 2014 – ruled that claims against a school district an accident on exterior stairs of a school building where an workshop met afterschool were not covered under the workshop’s insurance policy in that the claims pertained to the school’s maintenance of its premises, not the conduct of the workshop.
US •Underwriters v 14-33/35 Astoria Boulevard, EDNY 10 Civ 1595 (ARR)(JMA), Judge Ross – in April 2014 – rule din favor of the insurance company in rescinding a policy of insurance based upon misrepresentations on the application as to the contractors and other insurance for a construction project.
•Mercedes v Langsam, Sup. Bronx 18043/2007, Justice Salman – in April 2014 – granted summary judgment upholding disclaimer of coverage under exclusion for injuries to an employee of the insured.
•Lo- Bro v Rare Earth, Sup. Queens 8162/2012, Justice Sampson – in January 2014 – granted summary judgment upholding disclaimer by operation of exclusion for injuries to employees and contractors.
•Cromer v Rosenzweig, Sup. Ulster 2850-2012, Justice Gilpatrick – in December 2013 – granted summary judgment upholding disclaimer of coverage under exclusion for injuries to an employee of the insured.
U.S. •Underwriters Insurance Co v. Allstate Insurance Company, EDNY 10-cv-02353-WFK-JMA, Judge William F. Kuntz, II – in July 2013 – upheld denial of coverage based upon late notice and policy exclusion.
•National FireIns Co. v Gushue, Sup NY 110127/2011, Justice Coin – in July 2013 – ruled that Diamond Stat Insurance Company’s disclaimer for late notice was proven by evidence of years of complaints by claimant as to manganese fumes that ultimately were claimed to have caused Parkinson’s disease.
•United Nat. Ins. Co. v. 515 Ocean Ave., LLC, 2012 WL 1506053 (C.A.2 (N.Y.) 2012) Disclaimer for late notice by insured upheld where insurer proved insured’s awareness and unreasonableness in delay.
•Spentrev Realty Corp. v. United Nat. Specialty Ins. Co., 90 A.D.3d 636, 933 N.Y.S.2d 725 (2d Dep’t 2011) Disclaimer for late notice by claimant upheld where claimant failed to prove sufficient excuse for delay.
•Abraham Natural Foods Corp. v. Mount Vernon Fire Ins. Co. 84 A.D.3d 1281, 924 N.Y.S.2d 171 (2d Dep’t 2011) Insurer prevailed on disclaimer by proving that insured had become aware of the loss/accident in the underlying action prior to the date that the subject policy was issued.
•Chelsea Village Associates v. U.S. Underwriters Ins. Co., 82 A.D.3d 617, 919 N.Y.S.2d 163 (1st Dep’t 2011). Retracting one of several bases for disclaimer in a second letter does not invalidate the other grounds for disclaimer, which were proper and proven by admissible evidence.
United National Ins. Co., v 1854 Monroe Avenue HDFC, 2007 Civ. 10934 (KTD) (S.D.N.Y. 2010). Trial before Judge Duffy on timeliness of insurer’s investigation and disclaimer resulted in judgment upholding disclaimer.
US Underwriters Ins. Co. v Landau, 2010 WL 173301 (E.D.N.Y. Jan. 19, 2010 and June 8, 2010) Court upheld disclaimer based upon late notice and exclusion for claims arising from work of independent contractors.
US Underwriters Ins. Co., v Calandra, 2010 WL 1049295 (E.D.N.Y.) Court upheld disclaimer of coverage based upon late notice where insured property owner knew of accident on property.
Colon v US Liability Ins. Co, 2009 WL 2413646 (E.D.N.Y.) Court upheld disclaimer of coverage based upon late notice and exclusion for bodily injury to contractors and their employees.
Nichillo v. U.S. Liability Ins. Group, 2009 WL 275670 (EDNY)Court upheld disclaimer of coverage based upon late notice to insurer after service on insured by way of secretary of state.
Alcon Builders Group, Inc. v. U.S. Underwriters Ins. Co., 20 Misc.3d 1115(A), 867 N.Y.S.2d 15 (Sup. Ct. NY Co. 2008) Coverage defeated by the exclusion for bodily injury to contractors and their employees.
U.S. Underwriters Ins. Co. v. Falcon et al. 2007 WL 1040028 (S.D.N.Y. 2007) Trial before Judge Haight resulted in judgment for the insurance company upholding disclaimers on the separate notice obligations of insureds under a general liability policy and separate owners and contractors protective liability policy.
Atlantic General Contracting v. U.S. Liability Insurance Group, 24 A.D.3d 480, 806 N.Y.S.2d 225 (2d Dep’t 2006) New York law applies to coverage litigation concerning a New York accident even though the insured was from New Jersey and policy was delivered in New Jersey.
U.S. Liability Ins. Co. v. Mountain Valley Ins. Co., 371 F.Supp.2d 554 (S.D.N.Y. 2005). Policy of insurance issued as excess above primary policy issued to vehicle lessee was above policy of vehicle lessor.
Ins. Corp. of NY v U.S. Underwriters Ins. Co., 11 A.D.3d 235, 782 N.Y.S.2d 432 (1st Dep’t 2004). Certificate of insurance is not sufficient to raise issue of fact as to purported status of additional insured.
NYCHA v U.S. Underwriters Ins. Co., 7 A.D.3d 393, 776 N.Y.S.2d 468 (1st Dep’t 2004). Court upheld policy limitation of coverage for particular work at particular job site.
Webster v. Mount Vernon Fire Insurance Company, 368 F.3d 209 (2d Cir. 2004). Notice to insurer by husband does not satisfy the separate notice obligation of the wife.
U.S. Liability Ins. Co. v. Winchester Fine Arts Services, Inc., 337 F.Supp.2d 435 (S.D.N.Y. 2004). Court upheld excess insurer’s disclaimer for late notice in case where claim was known to be serious and above primary’s limits from inception of lawsuit.
U.S. Underwriters Ins. Co. v. Affordable Housing, Foundation Inc., 88 Fed. Appx. 441, 2004 WL 287151 (2nd Cir. 2004) affirming 256 F. Supp.2d 176 (SDNY 2003). Trial Court found and Court of Appeals affirmed application of clear and unambiguous independent contractor exclusion.
Nationwide Insurance Co. v. Empire Ins. Co., 294 A.D.2d 546, 742 N.Y.S.2d 387 (2d Dep’t 2002). Additional insured has a separate obligation to provide notice to insurance company.
U.S. Liability Ins. Co. v. 204 W.78th St. Housing Corp., No. 01 Civ. 1033, 2002 U.S. Dist. LEXIS 210 (S.D.N.Y. Jan. 7, 2002). Disclaimer upheld on lack of timely notice to insurer
Other victories, on a variety of claims, including professional liability claims, include:
Andrew U-Shin Kim v Ken Park, Sup NY 650770/2012, Justice Rakower – in October 2014 – dismissed a professional model’s claims against his business manager in that the documentary evidence as to the contract and payment records proved that the claims of mismanagement and wrongdoing to have been unfounded.
Davis v. Oyster Bay-East Norwich School District, 2012 WL 954080 (C.A.2 (N.Y.)). Retaliation claims dismissed as barred by prior proceedings and unfounded based upon the evidence.
Estate of Calli v. Forest View Center for Rehabilitation and Nursing, Inc., 91 A.D.3d 898, 937 N.Y.S.2d 606 (2d Dep’t 2012) Medical Technician company entitled to summary judgment showing that death was not proximately caused by lack of scan or unavailability of technician.
180 E. 88th St. Apartment Corp. v. Law Office of Robert Jay Gumenick, P.C., 84 A.D.3d 582, 923 N.Y.S.2d 474, 2011 (1st Dep’t 2011) In Legal Malpractice case, cross-claims and counterclaims by law firm against client board dismissed in that action by the board was undertaken in good faith and within its capacity as representative of the cooperative corporation and, in any event, such claims by the Law Firm may only be asserted against a culpable client by way of an affirmative defense, as a mitigating factor in the attorney’s negligence.
Dixon v. Village of Spring Valley, 50 A.D.3d 943, 856 N.Y.S.2d 243 (2d Dep’t 2008) Action against Village and police department dismissed on finding that decedent’s agent did not justifiably rely on defendants’ medical assistance as required to impose liability on defendants for response to 911 calls.
Davis v. Oyster Bay-East Norwich School District, 2006 WL 657038 (E.D.N.Y.) affirmed 2007 WL 926865 (2d Cir. 2007). Discrimination claims against school district and administrators dismissed as unfounded.
Gonzalo v Joline Estates Homeowners Assoc., 29 A.D.3d 631, 815 N.Y.S.2d 181 (2d Dep’t 2006) Summary judgment for defendant in personal injury action affirmed by Appellate Division where plaintiff’s testimony and expert’s opinion were insufficient to prove a defective condition or proximate causation.
39 College v Transpac, 27 A.D.3d 454, 810 N.Y.S.2d 520 (2d Dep’t 2006) Leave to amend pleading allowed in case concerning claims concerning lien on real property premised on allegedly improper mortgage.
Melnitzky v. Owen, 19 A.D.3d 201, 796 N.Y.S.2d 612 (1st Dep’t 2005). Legal malpractice and Judiciary Law claims dismissed based upon documentary evidence showing appropriate conduct by attorney.
Lo v Gong Park Realty Corp., 16 A.D.3d 553, 792 N.Y.S.2d 145 (2d Dep’t 2005). Default judgment vacated by Appellate Division where service was on secretary of state and defendant was able to show lack of receipt of summons and complaint because defendant had moved from address filed with secretary of state.
Crown Fire Supply Co., Inc. v. Cronin, 306 A.D.2d 430,761 N.Y.S.2d 495 (2d Dep’t 2003). Defamation case against Fire Chief/Fire Department dismissed on privilege/immunity grounds.
DiBlasio v. Chesterton et al, 302 A.D. 2d 486, 755 N.Y.S. 251 (2d Dep’t 2003). Claims by school employee against school for false imprisonment dismissed.
Friedman v Clarkstown Central School District , 01 Civ. 10646 (SHS), USDC, SDNY, Trial 2002 affirmed 75 Fed. Appx. 815, 2003 WL 22134539 (2nd Cir. (N.Y.)), 181 Ed. Law Rep. 418 (2nd Cir. 2003). On trial for injunctive relief, the District Court upheld the School District’s denial of request for exemption from immunization. The Second Circuit affirmed on facts and law.
Rachimi v. Robinson et al, Index No. 6033868/97. Trial before the Supreme Court, NY County (Justice Jane Solomon) in 2002. Defense verdict in legal malpractice action stemming from commercial litigation.
Dweck v Mann, 283 A.D.2d 292, 727 N.Y.S.2d 58 (1st Dep’t 2001).
Malpractice claims dismissed on showing of reasonable strategy and lack of damages.
Haggerty v Burns, 282 A.D.2d 500, 728 N.Y.S.2d 374 (2d Dep’t 2001).
Sanctions obtained against plaintiff deemed “provident exercise of discretion.”
Wolkstein v. Morgenstern, 275 A.D.2d 635, 713 N.Y.S.2d 171 (1st Dep’t 2000). Emotional distress and psychological damages are not recoverable in legal malpractice.
Polovy v. Duncan, 269 A.D.2d 111, 702 N.Y.S.2d 61 (1st Dep’t 2000).
Director/President of school had no basis for malpractice claim against school’s attorney.
Cepeda v. Trolman & Glaser, P.C., 259 A.D.2d 355, 687 N.Y.S.2d 67 (1st Dep’t 1999). Malpractice claims dismissed upon showing of reasonable attorney judgment at trial.
Hamond v. Marks Shron & Co., 249 A.D.2d 364, 671 N.Y.S.2d 106 (2d Dep’t 1998). Malpractice case against accountant dismissed for lack of duty owed by accountant to limited partner.
Rodriguez v. Weprin, et al, 116 F.3d 62 (2d Cir. 1997). Plaintiff failed to prove claims of civil rights violations alleged against attorneys, judge, and clerks.
In re Mediators Inc., 105 F.3d 822 (2d Cir. 1997). Neither sole shareholder nor creditors of corporate debtor can sue attorneys for aiding and abetting sole shareholder to defraud corporation.
Haggerty v. Burns, 244 A.D.2d 458, 665 N.Y.S.2d 913 (2d Dep’t 1997). Claims of abuse of process and malicious prosecution against attorney dismissed.
Aglira v. Julien Schlesinger, et al., 214 A.D.2d 178, 631 N.Y.S.2d 816 (1st Dep’t 1995). Malpractice case against trial lawyer disproved by documentary evidence.