I. CONFINEMENT AND BARKING WILL NOT SATISFY REQUIREMENT OF NOTICE OF DOG=S VICIOUS PROPENSITY
In the matter of Collier v. Zambito, 1 N.Y.3d 444, ___N.Y.S.2d___ (2004), the Court of Appeals addressed the issue of whether a dog=s confinement and barking operates to satisfy the requirement that an owner have notice of a dog=s vicious propensity. The dog in question was kept confined in the kitchen and was known by the owner to bark when guests were visiting.
The plaintiff, a twelve year old visiting the defendant=s home, had been to the defendant=s residence in the past. At the time of the incident in question, the dog was held by the owner on a leash. The owner then asked the plaintiff to approach the dog so that the dog could smell the plaintiff. Upon approaching the animal, the dog lunged and bit the plaintiff on the face.
In a 4-2 decision, the Court of Appeals held that neither the confinement nor the barking was sufficient to satisfy the notice requirement. The Court opined that Abarking and running around are what dogs do@. The dissenters conceded that all dogs run around and bark; however, they were of the opinion that not all dogs are kept away from visitors because they run around and bark.
II. A SLIP ON ICE ENDING IN A FALL INTO A TRENCH DOES NOT FALL WITHIN ' 240(1) OF THE LABOR LAW
A recent decision of the Fourth Department holds that a plaintiff worker=s slip on ice into a trench at the work site is not covered by ' 240 of the Labor Law. In Pursel v. Wellco, Inc. Et al., 6 A.D.2d 1096, 775 N.Y.S.2d 626 (4th Dept., 2004), the plaintiff was injured when he slipped on snow and ice while walking along a footer and fell approximately six feet into an excavation.
The Fourth Department, in reversing the lower court=s denial of the defendants= motions for summary judgment held that Athe hazards contemplated by Labor Law ' 240(1) are those where safety devices are required because of a difference in elevation levels ... A worker who falls into a trench from the side is not covered by Labor Law ' 240(1) because such an injury results from the usual and ordinary dangers of a construction site.@
III. 31 DAY DELAY IN DISCLAIMING COVERAGE UNDER AN EXCLUSION WAS HELD TO BE REASONABLE AND VALID
Recently, in New York Central Mutual Fire Insurance Company v. Majid, et al., 5 A.D.3d 447, 773 N.Y.S.2d 429 (2nd Dept. 2004), it was held that a 31 day delay in disclaiming coverage under a policy exclusion after the insurer learned of the insured=s use of a covered vehicle as a livery vehicle was not unreasonable.
Pursuant to Insurance Law ' 3420(d), an insurer is required to give written notice as soon as reasonably possible when disclaiming liability or denying coverage. The timeliness of disclaimer is measured from the point when the insurer first learns of the grounds for disclaimer of liability or denial of coverage. In this case, the insurer first learned of the grounds for disclaimer after a statement was taken of the insured by an investigator. Upon receipt of the investigator=s report, the insurer=s casualty examiner forwarded the file to counsel for review after which point, the disclaimer letters were issued. Thirty-one days had passed from the time the insurer first learned of the grounds for the disclaimer.
The Second Department ruled that given the facts before them, it was not unreasonable for the insurer to consult with counsel regarding the livery vehicle exclusion prior to issuing its disclaimer.