Monday, October 18, 2021

Snoozz -- Tab & Window Snoozing

Snoozz - Tab & Window Snoozing 

Snoozz is an excellent tab and window snoozing browser extension alternative to Tab Snooze, which I've posted about before but has been wonky since the last Chrome update. In fact, Snoozz's developer, Rohan, emailed back this morning to advise that a recurrence or "repeat" feature has just been added to Snoozz (something I recommended that Tab Snooze has), and that he's working on audible notifications. 

 If you're not using a tab/window snoozing extension on your favored browser to set tabs and windows to reopen, you're doing it wrong. I have multiple websites/web addresses set to reopen on a particular day or on a recurring schedule that I've set (once a ____, or on every ___ day of the month, etc.).   This is like me telling you how I do one of my card magic tricks. You're welcome. 

 Thanks, Rohan, for coding a most excellent extension. 

 #worksmarternotharder



Thursday, October 14, 2021

Court-Ordered Discovery in Aid of SUM Arbitration Denied

MATTER OF ARBITRATION OF ALLSTATE INSURANCE COMPANY, 2021 NY Slip Op 5418 - NY: Appellate Div., 4th Dept. 2021 - Google Scholar

Justice delayed is justice denied, some say.

So can discovery in a SUM (supplementary uninsured/underinsured motorists) coverage claim, apparently.  

In this case, the Fourth Department AFFRIMED the denial of Allstate's petition to stay arbitration of its insured's SUM claim because "the record here establishes that '[Allstate] had ample time...within which to seek discovery of the respondent insured as provided for in the insurance policy, and unjustifiably failed to utilize that opportunity' to obtain the discovery now sought."

The appellate court also agreed that Allstate had made no showing that the discovery allowed in arbitration would be inadequate to establish its case.

Finally, the court held that "[t]o the extent that [Allstate] argues that respondent's demand for arbitration was premature inasmuch as respondent had not complied with the terms of the endorsement for SUM coverage, that argument is not properly before us because [Allstate] failed to raise it before the [lower] court [on its petition]."  One of the basic tenets of appellate practice is that issues not raised and argued to the motion or trial court generally may not be raised and argued on appeal.  

Monday, September 6, 2021

Updated COVID-19 Business Interruption Coverage New York Decisions


The labor of my Labor Day...Updated COVID-19 Business Interruption Coverage New York Decisions (as of September 6, 2021)

Until today, I hadn't really counted the Kingray decision out of the Central District of California (No. 8 on my list) as a loss, but it technically is, so it's now among the counted. Including Kingray (which the Deer Mountain Inn and SA Hospitality Group decisions roundly reject), the "score" in New York on the "direct physical loss of or damage to" issue stands at 35-1 for insurers.

Here are the current metrics: 

State Supreme Court Decisions --10
Federal District Court Decisions -- 26

State Courts
Erie County 1
Kings County 2
Nassau County 1
Onondaga County 1
Orange County 1
Queens County 1
Suffolk County 3

Federal Courts 
EDNY 4
NDNY 2
SDNY 14 
WDNY 4 
D. Conn. 1 
C.D. Cal. 1

Dispositive Motions: 
Granted 35 
Denied 1 

% For Insurers 97.2% 
% For Policyholders 2.8% 

Appeals Pending (per the Covid Coverage Litigation Tracker): 
2nd Circuit 8 
Appellate Division 
  Second Department 4 
  Fourth Department 2

(The document can be viewed on and downloaded from Dropbox by clicking on the post's title or image.  If anyone's company blocks that cloud sharing site, head over to my LinkedIn post and pull the document from there.  Or email me for a copy.  Cheers.) 

Saturday, June 26, 2021

⚠ NEW YORK COVID-19 #BUSINESSINTERRUPTION CASE UPDATE ⚠

The "score" in New York on COVID-19 #businessinterruption coverage lawsuits, where "direct physical loss" or "direct physical damage" was at issue, now stands at 23-0 for insurers (18 federal, 5 state).

Since my last update, here are the four recent decisions: 
Manhattan-based policyholder in the business of office project management and furniture installation, sued its commercial property insurer for business income and civil authority coverage for losses allegedly stemming from its March 2020 forced closure during COVID-19.  The policy's business interruption coverages required “direct physical loss of or damage to property” and the policy included a “Microbe Exclusion” that included viruses. 

In GRANTING the insurer's motion to dismiss the complaint, with prejudice, the court ruled:

Critically, Plaintiff’s argument also fails to consider the extensive case law that has developed in New York on this exact issue over the past year, which provides that loss of use caused by the COVID-19 pandemic is not physical damage. Unfortunately, Plaintiff is only one of numerous businesses that suffered immense income loss after shutting its doors during the pandemic. Many of those other businesses have brought materially identical actions in New York seeking business impact coverage from their insurance providers. New York courts have consistently maintained that “direct physical loss of or damage” language requires physical damage to invoke coverage, and that loss of use due to the pandemic does not constitute physical damage when the covered property was physically unharmed by the virus. * * *

As in the many analogous cases that have been brought in New York courts over the past year, the Court concludes here that the plain meaning of “direct physical loss or damage” unambiguously requires physical damage to the covered property to invoke coverage and that loss of usage does not rise to the level of physical damage. Plaintiff has failed to allege such loss or damage occurred, given that Plaintiff’s office remained physically intact and unharmed throughout its closure, other than having its doors closed to the public. Accordingly, Plaintiff is not entitled to coverage under the Business Property Coverage terms of the Policy. * * *

The language of the Policy is unambiguous and bars Plaintiff from coverage. The Business Property Coverage terms of the Policy cover direct physical damage or loss, and the Civil Authority Coverage terms of the Policy cover losses when civil authorities prohibit entrance onto the covered property due to direct physical damage to neighboring properties. Plaintiff has failed to allege that either of those occurred, and instead only alleges loss of use and limited access to the covered property due to the threat of COVID-19. Furthermore, Plaintiff is not entitled to coverage because the Policy’s Microbe Exclusion explicitly excludes coverage for damages caused by "any virus," which includes the COVID-19 virus. 

Plaintiffs, an office equipment supplier and a dental practice, sued their commercial property insurers for business interruption coverage for losses allegedly stemming from their March 2020 forced closure during COVID-19.  The policies' business interruption coverages required “direct physical loss of or damage to property”, but did not contain a virus exclusion.

In GRANTING the insurers' motion for judgment on the pleadings (post-answer motion to dismiss), the court ruled:

Plaintiffs' policies provide coverage for business interruptions caused by "direct physical loss or damage" to their insured premises or due to orders of a civil authority issued in response to  direct physical loss or damage" to nearby property that restricted Plaintiffs' access to their premises. Plaintiffs argue that they suffered covered losses because the presence of the coronavirus at or  near the insured premises constitutes "direct physical loss of or physical damage."

To make this argument, Plaintiffs point to the existence of the so-called "Virus Exclusion" and the "Virus Limitation": standard fmm endorsements developed by the ISO that exclude or limit an insured's otherwise available coverage when the conditions of the endorsement are met. * * * Plaintiffs argue that this omission constitutes an "express acknowledgement by [Defendants] that a virus is capable of causing 'direct physical loss of or damage to' property." (Doc. 78 at 18.)  from this assertion, Plaintiffs jump to the conclusion that the presence of the coronavirus constitutes direct physical loss or damage.

However, Plaintiffs' reliance on the Virus Exclusion and Virus Limitation is misplaced. Regardless of whether a virus could cause direct physical loss of or damage to property, Plaintiffs do not plausibly allege that the coronavirus caused direct physical loss or damage to their premises or property in the vicinity of their premises. The Virus Exclusion and Virus Limitation operate by limiting or excluding coverage that would otherwise be available under an insured's policy; that is, they limit rather than expand coverage. Consequently, the endorsement becomes relevant only if an insured experiences an otherwise "covered loss." In that case, the Virus Exclusion or the Virus Limitation would limit the insured's recovery for the otherwise covered loss. In Plaintiffs' case, however, the omission of the Virus Exclusion and the Virus Limitation from Plaintiffs' policies is irrelevant because Plaintiffs have not plausibly alleged that they suffered "direct physical loss or damage" to their property.

Many courts applying New York law, including this one, have already concluded that business closures due to the presence of the coronavirus or due to New York State executive orders do not constitute "direct physical loss of or damage to" property. See Kim-Chee LLC v. Phil. Indem. Ins. Co., No. 1:20-cv-1136, 2021 WL 1600831, at *5 (W.D.N.Y. April 23, 2021); id. at *3 ( citing cases applying New York law). Relying on longstanding New York precedent, these courts have ruled that the phrase "direct physical loss or damage" is unambiguous and requires physical alteration of property. Kim-Chee, 2021 WL 1600831, at *4 (applying Roundabout Theatre Co., 751 N.Y.S.2d at 8).

The presence of the coronavirus does not physically alter property in a permanent manner. In this respect, the virus is different from other physical or chemical contaminants that have been found to cause "direct physical loss or damage" to property. Id. at *5 (citing gasoline seepage, lead contamination, exposed asbestos, pervasive odor, and chemical or bacterial contamination as examples of"[c]ontamination of a structure that seriously impairs or destroys its function," thereby "qualify[ing] as direct physical loss"). Instead, the coronavirus poses a temporary health hazard to the occupants of a building, whose threat to human health dissipates with the passage of time. Many courts, including this one, have determined that merely temporary contamination does not qualify as "direct physical loss or damage." Id. (citing dust from road construction, mold or bacteria that could be eliminated by cleaning, and the controlled presence of asbestos as examples of such "short-lived contamination). * * *

In this case, the alleged presence of the coronavirus has not caused a permanent change to Plaintiffs' properties or decreased the value and function of those properties. Instead, New York State executive orders issued in response to the coronavirus temporarily deprived Plaintiffs of the ability to use their properties for their intended purpose. Because Plaintiffs have not plausibly alleged that the presence of the coronavirus caused "direct physical loss of or damage to" their insured premises or nearby property, Plaintiffs cannot state a claim for breach of contract under either their business interruption coverage or civil authority coverage. Insuring Defendants are therefore entitled to judgment on the pleadings on Plaintiffs' breach of contract claim.

The court also granted judgment on the pleadings dismissing plaintiffs' New York General Business Law § 349 cause of action, holding that that plaintiffs cannot "establish that they  suffered injury as a result of' the defendants' conduct-as required to state a claim under N.Y. Gen. Bus. Law§ 349-because they did not plausibly allege "direct physical loss of or damage to" their insured property.

Plaintiffs, self-storage facilities, sued their commercial property insurer for business interruption coverage for losses allegedly stemming from their March 2020 forced closure during COVID-19.  The policies' business interruption coverages required “direct physical loss" of property, but did not contain a virus exclusion.

In GRANTING the insurer's motion to dismiss plaintiffs' complaint, the New York State Supreme Court, Erie County, held:

The Court agrees with Defendant that there are no facts, only conclusions, to support Plaintiffs' claims. As such, the Court finds that Plaintiffs have failed to meet their burden and that dismissal is required. The complaint is void of any evidence to support the bald conclusion that the coronavirus caused an actual covered loss (physical or otherwise) under the subject policies. * * * Here, the subject policy language is specific, clear, and unambiguous. The insurance company covers losses "directly resulting from interruption of your business operations because of a business property loss insured under this policy." Mura Affirmation at ¶ 13. "Physical loss" and "business property'' are not ambiguous terms. Those are the terms included in the Policy and the Court will not now, as noted above, "rewrite the contract or impose additional terms which the parties failed to insert." Supra.

The court also dismissed the complaint’s New York General Business Law § 349 deceptive acts and practices cause of action, holding that “[t]he case before this Court likewise stems from a private dispute outside the ambit of §349 of the General Business Law.” 

Plaintiff, a Manhattan restaurant, sued its commercial property insurer for business interruption coverage for losses allegedly stemming from its March 2020 forced closure during COVID-19.  The policy's business interruption coverages required “direct physical loss of or damage to  property" and did contain a virus exclusion.

In GRANTING the insurer's motion to dismiss with prejudice; the court held:

The Complaint does not allege that the Café suffered a ‘direct physical loss’ of property that would provide for business interruption coverage under the Policy….The Complaint does not plausibly allege the Café suffered a loss covered under the Civil Authority Provision….The Court concludes that the Virus Exclusion is unambiguous and excludes the coverage sought by the Café.

For an updated listing of all 23 New York COVID-19 #businessinterruption cases decided to date, click the image below.  

 

Monday, June 21, 2021

NYS Appellate Division, Fourth Department, Holds That the Undefined Term "Reasonable Care" as Used in a Homeowners Policy's Freezing Exclusion, Is Ambiguous

PROPERTY – HOMEOWNERS POLICY – FROZEN/BURST WATER PIPES – FREEZING EXCLUSION – REASONABLE CARE TO MAINTAIN HEAT

McAleavey v. Chautauqua Patrons Ins. Co.
(4th Dept., 6/17/2021)

Some say there are two things one should never watch being made: law and sausage.  If you are one of those (who say that), avert your eyes and move along.  

The McAleaveys owned a seasonal lake house that they rarely used and which had been on the market to sell for over a year.  With respect to structures coverage, their homeowners policy with Chautauqua Patrons Insurance Company (CPIC) contained this exclusion:
    1.    Freezing, Discharge, Leakage or Overflow -Unoccupied Residence-If the residence is vacant, unoccupied (including temporary absence) or under construction and unoccupied, the insured must take reasonable care to:
a.  maintain heat in the building; or

b.  shut off the water supply and completely empty liquids from any plumbing, heating or air-conditioning system, water heater or domestic appliance.
If an insured fails to do this, we do not pay for loss caused by freezing or the resulting discharge, leakage, or overflow from such system, water heater or domestic appliance. 
Forty-three days after Mr. McAleavey was last inside the house to check on things, on February 24, 2018, the McAleaveys received word that a passerby had reported seeing water coming out of house's front door.  Following its investigation of the reported loss and related claims (during which it was learned that the furnace's circulating pump had failed, causing an upstairs toilet tank to freeze and burst, flooding the home), CPIC denied coverage based on the policy's freezing exclusion.

The McAleaveys sued and, after discovery was conducted and completed, moved and CPIC cross-moved for summary judgment.  In DENYING plaintiffs' motion and GRANTING CPIC's cross motion, Supreme Court held
    We turn now to the second issue before this Court, did Plaintiffs "take reasonable care to maintain heat in the building."  Plaintiff has acknowledged that from on or about January 12, 2018 to February 24, 2018, no person entered his lake home for the purpose of inspection. At the time of the loss, and for months prior, Plaintiff had set his thermostat at about 50 degrees, but had not drained the water in his house. This Court takes judicial notice that January and February are generally the two coldest months in western New York.  *  *  *  *  *

In the case at bar, the period that the house was left uninspectcd is forty three days, approximately one and a half months. One and a half months without inspection, especially when said months are January and February, results in this Court finding that Plaintiffs lack of care was unreasonable as a matter of law. 
The McAleaveys appealed and the Fourth Department unanimously REVERSED, denying CPIC's cross motion, granting plaintiffs' motion, and remitting the action back to Supreme Court for an inquest on damages: 
"`Before an insurance company is permitted to avoid policy coverage, it must satisfy' its burden of establishing that the policy does not cover the loss or that an exclusion or exemption applies, and that the policy provisions are clear and `subject to no other reasonable interpretation'" (Place v Preferred Mut. Ins. Co., 190 AD3d 1208, 1209 [3d Dept 2021], quoting Dean v Tower Ins. Co. of N.Y., 19 NY3d 704, 708 [2012]; see Gallo v Midstate Mut. Ins. Co., 45 AD3d 1492, 1493 [4th Dept 2007]). "Policy provisions must be interpreted according to common speech and consistent with the reasonable expectation of the average insured, and ambiguities are to be construed against the insurer" (Place, 190 AD3d at 1209 [internal quotation marks omitted]; see Lobello v New York Cent. Mut. Fire Ins. Co., 152 AD3d 1206, 1209 [4th Dept 2017]). 

Here, the parties correctly recognize that their dispute turns entirely on whether plaintiffs used "reasonable care" to maintain the heat in the subject house. If they did, then the loss is covered under the policy; if they did not, then the loss is not covered. 

To this end, in support of their motion for partial summary judgment, plaintiffs established as follows: the home's heating system was recently installed, was regularly maintained, and had never required repairs; Robert P. McAleavey (plaintiff) winterized the property by setting the internal temperature to approximately 50 degrees in the late fall of 2017; plaintiff checked on the home approximately 15 times during the winter of 2017-2018; during those visits, plaintiff ensured that the temperature was appropriate, that no windows were broken, that the toilets flushed, and that the water ran; and plaintiff last visited the house on January 11 or 12, 2018, at which point the interior temperature was "comfortable." Although plaintiff was unable to visit the property between mid-January and late February 2018 due to a broken leg and his resulting hospitalization, plaintiffs' submissions established that, during such period, they had no notice or reason to suspect that anything was wrong with the premises or the heating system. Moreover, plaintiffs' neighbors and realtor periodically checked on the property's exterior. 

In our view, the term "reasonable care" as used in the policy is ambiguous inasmuch as it is susceptible of at least two reasonable interpretations, at least one of which supports plaintiffs' contention that they exercised reasonable care, and this ambiguity was not resolved by extrinsic evidence (see generally Armstrong v United Frontier Mut. Ins. Co., 181 AD3d 1332, 1334 [4th Dept 2020]). 

"`[U]nder [these] circumstances, the ambiguity must be resolved against the insurer which drafted the contract'" (id.; see Cragg v Allstate Indem. Corp., 17 NY3d 118, 122 [2011]; Randolph v Nationwide Mut. Fire Ins. Co., 242 AD2d 889, 889 [4th Dept 1997]). We thus conclude that plaintiff's loss is specifically covered under the policy and that the exclusion relied on by defendant does not unambiguously apply in this case (see Gallo, 45 AD3d at 1494; see also Continental Cas. Co. v Rapid-American Corp., 80 NY2d 640, 652 [1993]). 

Contrary to defendant's assertion and the court's conclusion, nothing in Stephenson v Allstate Indem. Co. (160 AD3d 1274 [3d Dept 2018], lv denied 32 NY3d 904 [2018]) establishes a per se rule that a policyholder's failure to conduct regular interior inspections at specific intervals, irrespective of any other efforts, constitutes a failure to use "reasonable care" to maintain heat. Rather, Stephenson granted summary judgment to the insurer because, in that case, it was "undisputed that [the policyholder] did not arrange for inspection of the premises or take any other action to ensure that adequate levels of heat were actually maintained during [the winter months]" (id. at 1276 [emphasis added]). The policyholder's wholesale neglect in Stephenson stands in stark contrast to plaintiffs' reasonable—albeit unsuccessful—efforts to maintain the heat in this case.
Does this decision stand for the proposition that the undefined term “reasonable care” as used in a policy's freezing exclusion is ambiguous and must, in the absence of extrinsic evidence or disputed facts (always?) be construed against the insurer? 

If that's the case, how is an insurer to define such a term if the policy were to include a definition? Isn’t something subjective—like the concept of reasonableness—always open to debate and/or interpretation?  How exactly is "reasonable care"--the concept--susceptible to at least two reasonable interpretations? Name two, please, because I can't think of more than one.  Isn't the Fourth Department conflating and confusing the needed quantum of reasonable care with the concept of reasonable care?  

Why doesn’t “reasonable care” simply mean what a normal, prudent person would do under the same circumstances to keep undrained water pipes from freezing during the wintertime? Property policies don’t define “promptly”, “immediately”, “temporarily” and similar words, and yet those words, although not defined or understood in exactly the same way by all people, have not been held to be ambiguous. 

Will insurers wishing to assert the freezing exclusion be required first to set specific minimums regarding how often the interior of a vacant/unoccupied house is to be checked for heat?  What ambient temperature must be maintained within a dwelling?  

Things that make you (and this coverage attorney) go hmm.  

Toll or Suspension? The New York Appellate Division, Second Department, Weighs In

CIVIL PROCEDURE – COVID-19 EXECUTIVE ORDERS – SUSPENSION OR TOLL?

Brash v. Richards
(2nd Dept., 6/2/2021)

I've posed the question here before (several times, as a matter of fact): 
👉Did Governor Cuomo's COVID-19 Executive Order 202.8 (and its extensions) suspend or toll  prescribed procedural time limitations  in New York?👈

An Albany Law School professor said toll.
A sitting New York Supreme Court justice opined suspension in a law journal article.
A New York Court of Claim judge ruled toll in a February 2021 decision.

And now, the Appellate Division, Second Department, has, in the context of ruling on a respondent's motion to dismiss an appellant's appeal as untimely taken, ruled TOLL (and nicely explained the difference between a "toll" and a "suspension" of a limitation period):
The respondent Neil M. Richards moves, and the respondent Harrison Mu separately moves, to dismiss this appeal as untimely taken and on the ground that no appeal lies from an order determining a motion in limine. These motions raise the issue of whether a series of executive orders issued by Governor Andrew Cuomo, as a result of the COVID-19 pandemic, constitute a toll or, alternatively, a suspension of filing deadlines applicable to litigation in the New York courts. For the reasons that follow, we conclude that the subject executive orders constitute a toll of such filing deadlines. As a result, this appeal was timely taken. 
A toll suspends the running of the applicable period of limitation for a finite time period, and "[t]he period of the toll is excluded from the calculation of the [relevant time period]" (Chavez v Occidental Chem. Corp., 35 NY3d 492, 505 n 8; see Foy v State of New York, 71 Misc 3d 605 [Ct Cl]). "Unlike a toll, a suspension does not exclude its effective duration from the calculation of the relevant time period. Rather, it simply delays expiration of the time period until the end date of the suspension" (Foy v State of New York, 71 Misc 3d at 608). 

In this case, a copy of the order appealed from was served upon the appellant, with written notice of its entry, on October 2, 2020. CPLR 5513(a) provides that an appeal must be taken within 30 days of service of a copy of the order or judgment appealed from and written notice of its entry. The appellant served and filed a notice of appeal on November 10, 2020. According to the respondents, the notice of appeal was untimely served and filed, because, in their view, Governor Cuomo suspended filing deadlines in civil litigation in the New York courts until November 3, 2020. In contrast, the appellant argues that Governor Cuomo tolled such filing deadlines, meaning that the appellant had 30 days from November 3, 2020, to serve and file the notice of appeal. As a result, the appellant maintains that the notice of appeal, served and filed on November 10, 2020, was timely. Executive Law § 29-a(1) provides that the Governor "may by executive order temporarily suspend specific provisions of any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster." 

Executive Law § 29-a(2)(d) provides that any such order "may provide for the alteration or modification of the requirements of such statute, local law, ordinance, order, rule or regulation suspended, and may include other terms and conditions." 

On March 20, 2020 Governor Cuomo issued Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8), which provided: 
"I hereby temporarily suspend or modify, for the period from the date of this Executive Order through April 19, 2020 the following: 

"In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020."
Governor Cuomo later issued a series of nine subsequent executive orders that extended the suspension or tolling period, eventually through November 3, 2020 (see Executive Order [A. Cuomo] Nos. 202.14, 202.28, 202.38, 202.48, 202.55, 202.55.1, 202.60, 202.67, 202.72 [9 NYCRR 8.202.14, 8.202.28, 8.202.38, 8.202.48, 8.202.55, 8.202.55.1, 8.202.60, 8.202.67, 8.202.72]). These subsequent executive orders either stated that the Governor "hereby continue[s] the suspensions, and modifications of law, and any directives, not superseded by a subsequent directive," made in the prior executive orders (Executive Order [A. Cuomo] Nos. 202.14, 202.28, 202.38, 202.48, 202.67, 202.72 [9 NYCRR 8.202.14, 8.202.28, 8.202.38, 8.202.48, 8.202.67, 8.202.72]) or contained nearly identical language to that effect (see Executive Order [A. Cuomo] Nos. 202.55, 202.55.1, 202.60 [9 NYCRR 8.202.55, 8.202.55.1, 8.202.60]). While most of the subsequent executive orders did not use the word "toll," Executive Order (A. Cuomo) No. 202.67 (9 NYCRR 8.202.67) issued on October 5, 2020, provided that the: 
"suspension in Executive Order 202.8, as modified and extended in subsequent Executive Orders, that tolled any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby continued, as modified by prior executive orders, provided however, for any civil case, such suspension is only effective until November 3, 2020, and after such date any such time limit will no longer be tolled." 
Finally, Executive Order (A. Cuomo) No. 202.72 (9 NYCRR 8.202.72), issued on November 3, 2020, reiterated that the "toll" would no longer be in effect as of November 4, 2020 (see Executive Order [A. Cuomo] No. 202.72 [9 NYCRR 8.202.72]). 

Governor Cuomo's March 20, 2020 executive order, Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8), expressly and plainly provided that the subject time limits were "hereby tolled," and two of the subsequent executive orders referred to the temporary alternation of the subject time limits as a "toll[ ]" (Executive Order [A. Cuomo] Nos. 202.67, 202.72 [9 NYCRR 8.202.67, 8.202.72]; see Foy v State of New York, 71 Misc 3d 605; Kugel v Broadway 280 Park Fee LLC, Jan. 28, 2021 at 17, col 2, 2021 NYLJ LEXIS 25 [Sup Ct, NY County]). 

The respondents contend that even though Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8) purported to toll the limitations periods, Governor Cuomo did not have the statutory authority to do so, as Executive Law § 29-a, while expressly granting the Governor the authority to suspend statutes, does not expressly grant the Governor the authority to "toll" them. This contention is unpersuasive. As stated above, Executive Law § 29-a(2)(d) provides that an order issued pursuant thereto "may provide for the alteration or modification of the requirements of such statute, local law, ordinance, order, rule or regulation suspended, and may include other terms and conditions." This language in Executive Law § 29-a(2)(d) indicates that the Governor is authorized to do more than just "suspend" statutes during a state disaster emergency; he or she may "alter[ ]" or "modif[y]" the requirements of a statute, and a tolling of time limitations contained in such statute is within that authority (see Foy v State of New York, 71 Misc 3d 605). 

Furthermore, although the seven executive orders issued after Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8) did not use the word "toll," those executive orders all either stated that the Governor "hereby continue[s] the suspensions, and modifications of law, and any directives, not superseded by a subsequent directive," made in the prior executive orders (Executive Order [A. Cuomo] Nos. 202.14, 202.28, 202.38, 202.48 [9 NYCRR 8.202.14, 8.202.28, 8.202.38, 8.202.48]) or contained nearly identical language to that effect (see Executive Order [A. Cuomo] Nos. 202.55, 202.55.1, 202.60 [9 NYCRR 8.202.55, 8.202.55.1, 8.202.60]). Since the tolling of a time limitation contained in a statute constitutes a modification of the requirements of such statute within the meaning of Executive Law § 29-a(2)(d), these subsequent executive orders continued the toll that was put in place by Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8). 

Therefore, the subject executive orders tolled the time limitation contained in CPLR 5513(a) for the taking of an appeal until November 3, 2020. Accordingly, the notice of appeal, which was served and filed on November 10, 2020, well within 30 days of November 3, 2020, was timely. 

In addition, contrary to the respondents' contentions, the order appealed from is appealable as of right, as it decided motions made upon notice and affected a substantial right of the parties (see CPLR 5701[a][2][v]; Parker v Mobil Oil Corp., 16 AD3d 648, affd 7 NY3d 434). 

 Accordingly, we deny the respective motions to dismiss the appeal.
That should settle the issue, no?  

Why should you care if you're a property or casualty insurer doing business in New York?  (Hint: the answer has something to do with when reserves can be taken down.)

Next up: 
PPTL accrual before, during and after🠞what's the deadline?  
PPTL expiration during and after🠞what's the extended deadline?

Is anyone interested in a follow-up virtual meeting to go over how to calculate New York's COVID-19 toll?  #itsnotjustadding229days #letmeknowinthecomments

Monday, June 14, 2021

The REVISED (and Current) Should-You-Wish-to-Complain-About-Your-Insurance-Company Advisory Paragraph of New York Insurance Regulation 64

This marks the seventh of many times since May 2008 that I've blogged about what I like to call the consumer advisory paragraph of New York Insurance Regulation 64 (11 NYCRR Part 216).  Insurers that do business in New York State should know that Regulation 64 requires certain letters to "prominently set out" a certain paragraph advising those to whom your letters are addressed that they may complain about you or your coverage position to New York's insurance regulator, formerly known as the New York State Insurance Department and now known since October 2011 as the New York State Department of Financial Services.

Effective June 9, 2021, the consumer advisory paragraph changed by deleting the in-person complaint-filing option and changing the Buffalo office mailing address.  Pursuant to the Eighteenth Amendment to 11 NYCRR Part 216, the paragraph now reads (new language highlighted):
Should you wish to take this matter up with the New York State Department of Financial Services, you may file a complaint with the Department either on its website at http://www.dfs.ny.gov/consumer/fileacomplaint.htmor by writing to the Consumer Assistance Unit, New York State Department of Financial Services, at: One State Street, New York, NY 10004; One Commerce Plaza, Albany, NY 12257; 1399 Franklin Avenue, Garden City, NY 11530; or 535 Washington Street, Suite 305, Buffalo, NY 14203.
As demonstrated by the claim file materials we continue to receive in my office (and the email I received just today), a number of insurers doing business in New York apparently remain uncertain of what kinds of letters must actually include that advisory paragraph. Under Regulation 64, there are only two kinds of notices or letters that must do so: 

  • "[a]ny notice rejecting any element of a claim involving personal property insurance" (11 NYCRR § 216.6[h]); and

  • "[a]ny letter of explanation or rejection of any element of a claim" for motor vehicle physical damage (11 NYCRR § 216.7[d][3]).

  • Let's take these in reverse order. 

    11 NYCRR § 216.7(d)(3)'s Requirement

    Everyone knows what a "motor vehicle physical damage" claim is, right?  Claims for collision or comprehensive coverage.  We're talking first-party, not third-party claims.  Indeed, §216.7 begins by stating that “[t]his section is applicable to claims arising under motor vehicle collision or comprehensive coverages”. Thus, by implication, letters regarding third-party property damage claims need not include the advisory paragraph. 

    Notice also that 216.7(d)(3) is somewhat broader in its scope than 216.6(h) in that the advisory paragraph required by 216.7(d)(3) must be included in both coverage rejection and explanation letters.

    11 NYCRR § 216.6(h)'s Requirement

    Which brings us to "[a]ny notice [broader than "letter"?] rejecting any element of a claim involving personal property insurance", the first type of claim communication in which the advisory paragraph must be included. A notice or letter rejecting an element of a personal property claim is not

  • an acknowledgement letter;
  • an ROR letter;
  • a non-waiver agreement;
  • a letter written solely to explain personal property coverage or payments;
  • a letter forwarding payment to an insured;
  • a liability coverage declination letter; or
  • every single letter that leaves the insurer's office addressed to an insured or claimant.

  • In a January 6, 2004 opinion letter, the NYS Insurance Department's OGC (Office of General Counsel) opined: 

    The term "personal property insurance" in Section 216.6(h) limits the applicability of subdivision (h) to personal lines property insurance. Thus, subdivision (h) is not applicable to commercial lines property insurance or to liability insurance. 

    Letters rejecting commercial property insurance? ⇨ No advisory paragraph required❗
    Letters to insureds rejecting (disclaiming/denying) liability coverage? ⇨ No advisory paragraph required❗
    Letters to third-party claimants or their assignees (body shops) or subrogees (insurers) denying that your insured was at fault, in whole or part, for causing the accident and injuries or damages ? ⇨ No advisory paragraph required❗

    See?

    Over the 26+ years that my office has been open I've seen the advisory paragraph included in letters in which it is not required.  If you don't care about your company's consumer complaint ratios, then by all means continue including the consumer advisory paragraph in everything written that leaves your desk or office.  If, however, after reading this seventh missive you still are not sure whether the paragraph belongs in a certain letter or not, call or email me.  We'll figure it out. 

    Sunday, June 6, 2021

    COVID-19 Business Interruption Coverage Cases Decided Under New York Law -- 18-0 for Insurers

    June 6, 2021 ~~ To date, 18 courts (14 federal/4 state) applying New York law have issued decisions on motions in COVID-19 business interruption coverage cases.  Click the image below for a list of those cases.  Each case name is hyperlinked to its decision.  

    18-0 for insurers.  

    Still waiting for the court's decision of my client's motion to dismiss the THILL 13014, LLC et al. v. Finger Lakes Fire & Casualty Company Erie County Supreme Court case.   


    Monday, May 3, 2021

    Tuesday, March 2, 2021

    Toll or Suspension? New York Court of Claims Judge Says Toll.

    Did New York Governor Cuomo's Executive Order 202.8 et seq. create a toll or suspension of prescribed procedural limitations periods? 

    On February 21, 2021, this New York Court of Claims judge, after chiding the New York Attorney General's Office for having "inexplicably failed to advise the court of Executive Order 202.8 and then, once raised by [the pro se] claimant, neglected to address it's impact here," said toll

    Executive Order 202.8, as noted, provides for a toll, as do Executive Order 202.67 and Executive Order 202.72, the last two executive orders addressed to time limits for the commencement, filing or service of a legal action. Thus, it is clear that a toll, and not a suspension, was intended and the question becomes whether the statute authorizes a toll. The primary consideration in the construction of a statute is to ascertain and give effect to the intention of the legislature (McKinney's Cons Laws of NY, Book 1, Statutes § 92). The legislative intent is to be ascertained from the words and language used and the statutory language is generally construed according to its natural and most obvious sense without resorting to an artificial or forced construction. (McKinney's Cons Laws of NY, Book 1, Statutes § 94). Focusing on the phrase "suspend any statute" in Executive Law § 29-a(1), the statue demonstrates a far reaching application. Considering that the legislature extended the authority for the governor to suspend to "any statute", that power should not be read in the narrow context of statutes involving time limitations where a `suspension' represents a term of art. Moreover, a statute must be construed as a whole reading the various sections together to determine legislative intent (Matter of Plastic Surgery Group, P.C. v Comptroller of the State of NY, 34 NY3d 507, 516 [2019]; Loehr v New York State Unified Court System, 150 AD3d 716 [2d Dept 2017]). In that regard, consideration must be given to the language in Executive Law § 29-a(2) which provides that "[s]uspensions pursuant to subdivision one of this section shall be subject to the following standards and limits" and in paragraph "d" of subdivision two, which provides that the implementing executive order "... may provide for the alteration or modification of the requirements of such statute, local law, ordinance, order, rule or regulation suspended, and may include other terms and conditions". The language in subdivision two, paragraph "d" makes clear that something other than a straightforward suspension of a statute is authorized. The governor is also permitted to modify the terms and conditions of a statue. Here, Executive Order 202.8, and its successors, can reasonably be characterized as implementing a temporary alteration of the timely filing and service provisions in Court of Claims Act § 10, a modification. As such, the tolls were authorized and the claim is not untimely. 

    ~~Foy v. State of New York, 2021 NY Slip Op 21037 (NY Ct. Clms. 2021)

    Thursday, January 7, 2021

    Same and Different

    Same PLLC. 
    Same TIN. 
    Same space (real and virtual). 
    Same domain. 
    Same practice areas. 
    Same motto (We take our jobs seriously, not ourselves.). 
    Same attitude. 
    Same knowledge. 
    Same commitment. 
    Same service. 
    Same lawyers and staff, but one. 
    Different name and logo. 

    Looking ever forward to continued and new opportunities to serve.



    Tuesday, December 1, 2020

    We're Hiring!

     Come work at a place where we take our jobs seriously, not ourselves.  Immediate opening.


    QR this, or click here.  


    Wednesday, November 25, 2020

    So When Can I Close My File? Calculating New York's COVID-19 Toll

     A claim handling client asked me today on what date the statute of limitations for a third-party personal injury claim that would have expired on July 11, 2020 if New York's COVID-19 toll (if it was a toll and not a suspension--see my previous posts on this blog) had not been put in place now expires?  

    The answer can be found on Slide 33 of my November 3, 2020 presentation:


    So the answer is?  February 25, 2021.  

    • The number of days from March 20, 2020 to and including July 11, 2020 is 114.
    • 114 days after November 3, 2020 is February 25, 2021.  
    Easy peasy.  Something else you can be thankful for tomorrow. 

    Stay safe and well, everyone, and have a happy (if socially distant) Thanksgiving.

    P.S.  I used two websites/services to make these calculations:

    Tuesday, November 24, 2020

    $481.30 Awarded on a $62,830.97 No-Fault Claim -- Coronary Bypass Surgery and Related Hospital Services Found Unrelated to the MVA

    NO-FAULT – CAUSATION – CORONARY BYPASS SURGERY – AAA ARBITRATION DECISION

    Matter of United Health Services Hospital  aao JK and Preferred Mutual Ins. Co.
    (AAA Case No. 17-18-1089-4199, issued 11/23/2020)

    78-year old man passes out driving and crashes.  At the hospital, he is found to have suffered a myocardial infarction and severe coronary artery disease.  Eight days, one coronary bypass surgery and $62,830.97 later, he goes home.  A few weeks later, the hospital bills the man's no-fault insurer, Preferred Mutual, for the cost of the heart surgery and related services.  Preferred Mutual obtains a cardiologist's peer review opinion and denies payment.  Approximately four years and 100% in interest later, the hospital demands AAA arbitration of the denial. 

    After a hearing, AAA Arbitrator Fred Lutzen concluded:
    After reviewing the entire peer review and the submitted records, I find the peer provides a satisfactory medical rationale and relies on the facts present, so that Respondent has met its burden and proven, prima facie, that the hospital services and surgery related to his heart condition were unrelated to the motor vehicle accident. 
    The arbitrator did award the hospital a total of $481.30 for the ER charge and a CT scan.  

    Ryan Mura of this office ably defended Preferred Mutual's denial position in this arbitration.  Nice job, Ryan.   

    Monday, November 23, 2020

    The Key to Winning COVID-19 Business Interruption Lawsuits?

    I was interviewed last Friday and quoted this morning in Jim Sams' article for the Claims Journal, entitled "The Key to Winning COVID Business-Interruption Claims: Say the Virus is Present".

    Sandwiched between two policyholder attorneys, I made some points and said some words on the subject of the developing and refined strategies of policyholder attorneys to keep their clients' COVID-19 business interruption lawsuits from being dismissed on pre-answer dispositive motions.  

    I said when I posted that article to LinkedIn that I'm still trying to get my head around policyholder attorney Chip Merlin's "absurd" argument. 

    Absurd for policyholder attorneys to allege presence of the virus, or for insurer's to require that policyholders prove it? Listen for yourself and please tell me if you understand Chip's argument.

    Then be sure to read my comment to the Claims Journal article.  

    What do you think?  Is alleging presence of the virus on property "the key"?  I know of some federal judges who don't think so. 

    COVID-19 Business Interruption Analytics -- Metrics for Six Dozen Litigation Rulings (To Date)

     It was in mid-April that I got the call.  I was being drafted to a team of attorneys from over a dozen jurisdictions to defend one of my insurer clients in what was expected to be an incoming tsunami of COVID-19 business interruption lawsuits.  For a seasoned insurance coverage attorney like me, this was my most recent call-up to The Bigs.  The Show.  The reason I spent all those formative coverage attorney years parsing sentences and hunting for the elusive Oxford comma.   

    Now seven months and three, fully briefed, pre-answer motions to dismiss (actually four--moved twice in one case) later, I could tell you everything you never wanted to know about the meaning of DPLOODT (direct physical loss of or damage to) property, "loss" and "damage", "of" and "to", and whether a virus is alive or dead or neither and why it might matter to a policyholder's business interruption claim.

    But not in this post.  Instead, I'll skip to and share with you the "scorecard" of sorts I've developed for cataloging and tracking the 72 COVID-19 business interruption ("BI" to the cool, commercial property kids) court rulings to date:


    Now, if you had been following me all along on LinkedIn, you would already have these metrics.  I've lost count how many times since April I've used the #businessinterrution and #covidBIlitigation hashtags on my LinkedIn posts (but you can count them if you want, in no particular and discernable order, by clicking here).  

    I know you're wondering how I keep all these stats or metrics, right?  Easy (not really).  Thank Microsoft and the sortability (not a real word) of the excellent Excel spreadsheet.  Et voilà:


    The image above clicks to its PDF source, but for the real spreadsheet geeks who know what insights custom sorting can reveal, I offer you the sortable Excel spreadsheet, itself.  All case rulings are clickable through to PDF documents residing in my Dropbox folder.  If you want updated versions of the rulings metrics and spreadsheet, follow me on LinkedIn and watch for my weekly postings.  

    Please feel free to share the rulings metrics, sortable spreadsheet and Dropbox folder link with whomever might find them interesting and useful.  

    And stay safe and well, everyone.  

    Tolled or Suspended? Watch What Happens Now That Whatever It Was Is Over.

     

    If you were unable to join us on November 3rd for a scintillating discussion (at least as scintillating as any discussion of the New York Civil Practice Law and Rules can be) about the expiration of New York's so-called COVID-19 toll (or was it a suspension?), turn the nearest light up to at least 6000K, grab another caffeinated drink, and click the image above for a recorded replay of my presentation.  Running time is 55 minutes and 49 seconds of heart-pounding action.  Mature audiences only.  

    If you prefer to read along with or in lieu of listening, my slide deck in PDF format is [click] here.

    Monday, November 2, 2020

    Toll or Nothing -- Free Webinar on November 3, 2020 to Review & Discuss NY's "COVID-19 Toll"

    Join us on Tuesday, November 3, 2020 at 2:00 PM ET for a free webinar to review and discuss NY's "COVD-19 Toll", set to expire on November 3, 2020.

    Topics will include:
    • toll vs. suspension: what's the difference?
    • Executive Orders 202, 202.8, 202.14, 202.28, 202.38, 202.48, 202.55, 202.55.1, 202.60, and 202.67.  
    • scope of the toll or suspension -- what things other than SOLs does this apply to?
    • toll or suspension -- which is it?
    • if a toll -- what happens: four scenarios
    • if a suspension -- what happens: four scenarios
    • applicability to time limits prescribed by:
      • regulations?
      • contracts?
    We're going to run this webinar  on Microsoft Teams.  If you'd like to attend, click the link below.  You will not need to install any apps or software if you don't want to; you can attend the webinar via your computer's Internet browser of choice.  Join us and watch and listen in.  I'll have a Q&A at the end of the program.  See you then.  


    Thursday, October 29, 2020

    *** COVID-19 BI LITIGATION RULINGS BY THE NUMBERS *** (through Oct. 29, 2020)

    I have seen a "scorecard that, together with the cases that I and others on LinkedIn have reported, tallies the COVID-19 business interruption rulings to date as 35-13 in favor of insurers. 

    >>  The FEDERAL/STATE COURT SPLT split is 33-15. 

    >> The FEDERAL COURT SCORE is 29-4 for insurers. 3 of the 4 rulings favoring policyholders are from the same judge. 

    >> The STATE COURT SCORE is 9-6 in favor of policyholders. 2 of the 6 rulings favoring insurers are from the same judge. 

    >> Of the 13 TOTAL DECISIONS FAVORING POLICYHOLDERS, only 4 are from federal court and 9 are from state court. 3 of the 4 federal court ruling favoring policyholders are from the same judge. 

    >> 28 DIFFERENT FEDERAL JUDGES have ruled on motions -- 26 in favor of insurers and 2 in favor of policyholders. 

    >> 14 DIFFERENT STATE COURT JUDGES have ruled on motions – 5 in favor of insurers and 9 in favor of policyholders. 

    >> The AVERAGE LENGTH of the STATE COURT rulings FAVORING POLICYHOLDERS is 1.88 pages. 

    >> The AVERAGE LENGTH of ALL FEDERAL COURT rulings is 11.37 pages.

    Monday, October 26, 2020

    Toll or Suspension -- What's Due on November 4th?

    I am beginning to question my office's present position on whether New York Executive Order § 202.8 and its subsequent extensions operates as a toll or suspension of prescribed limitations periods. 

    Many think, as did I originally, that 202.8 et seq. created a toll. If it’s a toll, I’ve said that 229 days must be added to the expiration date. If it’s a suspension, any procedural limitations period that expired or will expire from March 20th through November 3rd will become November 4th, making a LOT of things due that day. Governor Cuomo started off in EO 202.8 calling it a toll, but EO 202.67, as you will recall, states that “for any civil case, such suspension is only effective until November 3, 2020, and after such date any such time limit will no longer be tolled[.]” Great. That’s clears it up. 

    Fellow NY blogger Eric Turkewitz thinks it’s a toll. So do these attorneys

    Second Department Appellate Division Justice Thomas F. Whelan, however, thinks it’s a suspension

    I’m now leaning towards suspension, in part because the statute that gives the governor emergency powers and the statute Cuomo cited in all orders in the Executive Order 202 series – Executive Law § 29-a – is entitled “Suspension of other laws” and starts: 
    1. Subject to the state constitution, the federal constitution and federal statutes and regulations, the governor may by executive order temporarily suspend specific provisions of any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster. 

    2. Suspensions pursuant to subdivision one of this section shall be subject to the following standards and limits: 
    a. no suspension shall be made for a period in excess of thirty days, provided, however, that upon reconsideration of all of the relevant facts and circumstances, the governor may extend the suspension for additional periods not to exceed thirty days each[.] 
    Whatever it is, it’s ending on November 3, 2020.  I'm going to meet with the attorneys in my office and do some more reading and studying.  Join me afterwards in a Microsoft Teams meeting on Tuesday, November 3rd, at 2:00 PM ET to hear my office's updated opinion on this question and discuss and cast your vote.  Not in that election. This one.



    What Is New York's No-Fault Scheme Ill-Equipped to Handle? (The right answer is not "claims".)

    NO-FAULT – RICO AFFIRMATIVE ACTION – PRELIMINARY INJUNCTION STAYING COLLATERAL ARBITRATIONS & LITIGATION – MOTION TO DISMISS

    GEICO v. Mikhail Strut, MD, RES Physical Medicine & Rehabilitation Services, PC, and Cheryle Hart, MD
    (WDNY, 4/10/2020)

    Those of you dealing with Mikhail Strut, MD (f/k/a Mikhail Strutsovskiy) and his medical practice,  RES Physical Medicine & Rehabilitation Services, PC, may want to read this decision (click the case name) and follow this case.  

    In this decision and order, WDNY Judge Sinatra adopted Magistrate Judge Scott's recommendations to:
    • DENY defendants' motion to dismiss GEICO's complaint, which alleges causes of action based on RICO, fraud and unjust enrichment; and
    • GRANT GEICO's motion for a preliminary injunction and a stay of all collateral no-fault suits and arbitrations, upon GEICO posting $500,000 security. 
    In rejecting Dr. Stut's argument that GEICO was trying "improperly to circumvent New York's no-fault scheme" by litigating Strut's claims in federal court, Judge Sinatra remarked:  "Well, isn't that the pot calling the kettle black?  But the law is clear that Plaintiffs may maintain RICO and fraud claims in federal court, notwithstanding New York's no-fault scheme, because the no-fault scheme is ill-equipped to handle claims involving systemic fraud." 

    Okay, Judge Sinatra didn't write the pot/kettle thing.  But he did deny Dr. Strut's motion to dismiss and grant GEICO's preliminary injunction application.  If you're a New York no-fault insurer and are facing growing numbers of suits and arbs while you race to complete a global DJ action to confirm your non-coverage position, consider moving for preliminary injunctive relief.  

    What Should a Lawyer Sound Like? (Hint: Never use four words when three will do.)

    No, this is not the set up to another lawyer joke.  And I'm not asking for a friend.  

    On my LinkedIn account I recently shared Inc. Magazine's October 1, 2020 article entitled, "Ruth Bader Ginsburg Taught a Law Clerk the Secret to Strong Writing".  Here's the article:


    I said in my LinkedIn post that I strongly endorse the less is more method. The if-it-takes-more-than-one-breath test. 

    My transformative moments along the path of becoming a better writer who happened to be working in the legal industry came in 1981 from attorney L. David Zube, then director of Broome County Neighborhood Legal Services, and then again in 1986 from Justice James Boomer of the Appellate Division, Fourth Department. 

    David Zube taught me to eschew legalese and write plainly, using an crude but memorable excretory metaphor that included a generic jurist to make his point. Still in college but with designs on law school, I thought I ought to sound like a lawyer, if I were writing for a lawyer.  Where I was wrong, it turned out, was in my thinking of what a lawyer ought to sound like.  I've never forgotten that lesson (or its associated visual imagery).  

    Justice Boomer taught me and the other newbie confidential law assistants during his this-is-how-you-should-write-your-reports welcome-to-the-court session to write with a purpose and the reader in mind.  Admittedly, in writing those reports to affirm, reverse or modify, I never adhered to Justice Ginsberg's first tip of good writing: Set up constraints.  Thankfully, we had an incredibly proficient typist, Patty.  I was composing memos of law when cutting and pasting literally meant cutting and pasting (or at least scotch taping).

    I just finished revising a reply memorandum of law for a federal court action my office is defending.  The court's local rules limit reply memoranda to 10 pages.  Limits force the writer to be selective and succinct: selective of which points or arguments bear mentioning in limited space, and succinct in clearly communicating those points in as few words as necessary.  

    Before I became a lawyer--the exact moment of which is still hotly debated--I thought being a lawyer required sounding like a lawyer. The reason for that likely sourced to the thick and heavy "hornbooks" we "1Ls" were forced to lug around. Thankfully, legal writing, like the law, has evolved. One of my law school classmates, now a judge, recently wrote this
    There is indeed a consistent thread throughout the law that distinguishes bare allegations from allegations proven by credible evidence, better known as "facts." Allegations, in general, are much easier to make than to prove. Misconduct allegations, in particular, are sometimes the product of an accuser feeling embarrassed or feeling insulted or feeling intimidated by the accused, as opposed to any actual wrongdoing by the accused. Allegations are also at times the product of less than laudable motives, such as secondary gain. Perhaps the most frightful aspect of allegations is their power to destroy. This seems particularly acute today, when so many receive their information from social media, where a keyboard is often wielded as a cudgel. It is a sad reality that in the modern world, all that is required to malign is an agenda, an audience and an accusation. 
    Nice, huh?  Well said, Frank.

    Subject, predicate, object.  Active voice. The KISS principle for sentence composition.  Simple words (for the most part).  Write for the reader, not yourself.  

    James H. Boomer, was born on August 13, 1922. He served during World War II as a Naval Aviator from 1942 to 1946. Justice Boomer graduated from the Syracuse University College of Law, summa cum laude, in 1948 and was admitted to practice that year. He served as this Court's first research assistant from January 1948-July 1949. He became the Corporation Counsel for the City of Rochester in 1949 and served in that capacity until 1961. Thereafter, he practiced law in Rochester until 1970 when he was elected to the Supreme Court in November 1970. He was designated to the Appellate Division, Fourth Department by Governor Hugh Carey in 1982. During his term he served as a Trustee to the Appellate Division Law Library and served as the Chair of the Indigent Criminal Appeals Management Counsel for the Seventh Judicial District. He also served briefly as a temporary judge of the Court of Appeals. Justice Boomer was an avid hiker and mountain climber, scaling Mount Kilamanjaro at the age of 70. He died during a hiking expedition on November 14, 1993.

    No wonder the court had him do the this-is-how-you-should-write-your-reports training to each new class of law assistants.  He was awesome AND awe-inspiring.