First Department Holds that Insurance Law 3105 Doesn’t Immunize Insurer from Proving Justifiable Reliance and Loss Causation to Succeed on Fraud Claim

Under New York Insurance Law § 3105, insurers have an out. If you materially misrepresent something when buying insurance, the insurer can get out of the contract. That's valuable to insurers as it transfers the risk of loss when the insurer was induced to issue a policy based upon false information. In Ambac Assur. Corp. …

Third Department, This Time, Upholds Expulsion of Student for Sexual Assault

In Matter of Weber v State Univ. of N.Y., Coll. At Cortland, the Third Department confirmed a SUNY determination to expel a student for sexually assaulting another student, finding that the victim never consented to sex.  This case is pretty clear cut and would not be that remarkable if it wasn't for the Third Department's …

First Department Holds Obligation to Repurchase Residential Mortgage Backed Securities Terminates After 6 Years

In Bank of N.Y. Mellon v WMC Mtge., LLC, Bank of NY Mellon was left holding thousands of defective residential mortgage backed securities after the real estate market collapse in 2008.  The Bank of NY, which became the administrator of the loans in a securitized trust in June 2006, sued WMC Mortgage and JPMorgan Chase …

First Department Affirms Trial Court Decision to Set Aside Personal Injury Verdict for Egregious Conduct of Defendant’s Counsel

In Smith v Rudolph, the First Department affirms a trial court decision to set aside a personal injury verdict in the plaintiff's favor because defense counsel's conduct was so egregious that it deprived the plaintiff of fair trial.  The Court held: Here are some examples of what defense counsel did to justify the new trial in the interest of justice: …

First Department Declines to Require Sex Offender Registration Where Underlying Crime Had No Sexual Motivation or Conduct

In People v Diaz, the First Department holds that Correction Law § 168-a(2)(d)(ii), which required the defendant to register as a sex offender in New York for the out-of-state murder of a minor, violated the defendant's substantive due process rights as applied.  Particularly, under that section, an individual is required to register as a sex offender …

ZBA Tie Vote is Not a Default Denial When Exercising Original  Jurisdiction, Holds Third Department

In Matter of Alper Restaurant Inc. v Town of Copake Zoning Board of Appeals, the Third Department holds that a Town ZBA's tie vote does not result in a default denial when it is exercising original jurisdiction to consider a special use permit. The default denial provisions only apply when a ZBA is exercising appellate jurisdiction. …

Third Department Surprisingly Vacates Expulsion of SUNY Student for Sexual Assault

In a surprising reversal in Matter of Haug v State Univ. of N.Y. at Potsdam, the Third Department annulled SUNY's determination to expel a student who sexually assaulted another student as unsupported by substantial evidence in the record.  The SUNY Student Code required affirmative consent to sex, which it was undisputed that the student never received, …

First Department Questions Propriety of Rule Limiting Liability for Domestic Animals to Viscious Propensities

In Scavetta v Wechsler, the First Department affirms the dismissal of negligence claims against the owner of a dog that, when leashed to a bicycle rack, dragged the rack into the street injuring the plaintiff. Although the Court noted that it was constrained to dismiss the case by the Court of Appeals' vicious propensities rule in …

In Case of First Impression, First Department Holds RMBS Trustee Has Standing to Enforce Putback Rights

In Natixis Real Estate Capital Trust 2007-HE2 v Natixis Real Estate Holdings, LLC, the First Department holds, in a case of first impression in NY, that the Securities Administrator of a residential mortgage backed securities (RMBS) trust has standing to bring an action to enforce putback rights, in addition to the standing normally granted to …

In Basis PAC-Rim Opportunity Fund (Master) v TCW Asset Mgt. Co., the First Department holds loss causation lacking in a residential mortgage backed securities fraud case where the investment tanked at  the same time as the housing market. The Court clarified that it is not impossible to show fraud in the event of a market …