No Declaratory Judgment for Municipal Plaintiffs Against Law Firm
In County of Monroe v Clough Harbour & Assoc., LLP, 2017 N.Y. Slip Op. 07033, the municipal plaintiffs brought suit against a law firm, seeking a declaration that the defendant was obligated, under the terms of the parties’ agreement, to reimburse plaintiffs for all defense costs associated with an underlying personal injury lawsuit brought against plaintiffs. The plaintiffs brought a summary judgment motion, and the trial Court denied the motion.
On appeal, the Fourth Department affirmed, finding that the explicit language of the indemnification provision in the parties’ agreement does not violate General Obligations Law § 5-322.1 inasmuch “as it does not require [defendant] to indemnify [plaintiffs] for [their] own negligence.” Instead, the “provision is clear, obligating [defendant] to indemnify [plaintiffs] only when it is shown that damages were caused by [defendant’s] own negligence.”
Further, the Fourth Department held that “declaratory judgment is a discretionary remedy,” and “the [general] rule in declaratory judgment actions [is] that on a motion to dismiss the complaint for failure to state a cause of action, the only question is whether a proper case is presented for invoking the jurisdiction of the court to make a declaratory judgment, and not whether the plaintiff is entitled to a declaration favorable to him.”
Municipal Defendant Cannot Use Governmental Immunity as Defense in Tort Case
In Waterman v City of Rochester, 2017 NY Slip Op 07048, the plaintiff brought suit against the City seeking damages for his injuries after he was struck by a municipal vehicle driven by defendant David J. Bagley, II.
The City brought a motion for summary judgment, arguing the defense of governmental immunity. The Trial Court denied the motion, and the Fourth Department affirmed, stating, “Governmental immunity does not apply when a public employee, acting in the course of his or her employment, commits an ordinary tort that anyone else might commit—for example, when the employee is negligent in driving a [vehicle].”
Prepared by Eric W. Marriott, Esq.