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Recent rulings of interest to you and your practice.
Features
Although the marital exception to rape and forcible sodomy remained on the legislative books, the New York Court of Appeals in People v. Liberta, 64 NY2d 152 (1984), held that the exception ' which had previously shielded men from criminal liability for raping their wives ' was unconstitutional. It was a hard-won victory at the time for victims of such abuse and the feminist advocates behind them, but the extent of the protection the decision offered was limited; it applied only to rape and not to other sexual contacts that would be treated as crimes if perpetrated by anyone other than the victim's husband.
In December 2006, Justice Laura Visitacion-Lewis of Supreme Court, New York County, held that a modification to a separation agreement was void ab initio and unenforceable. <i>D.M. v. K.M.</i>, 14 Misc.3d 1206(A), Slip Copy, (Sup. Ct., N.Y. Cty. 12/12/06). That case involved a woman who agreed to give up her rights under the original agreement according to which she would have received a large monthly maintenance payment, child support and custody of the couples' children. Although the Special Referee who first analyzed the case considered the modified agreement unenforceable because the ex-wife, an alcoholic, might have been impaired at the signing, the appellate court rescinded the agreement on another basis: The amended agreement was a product of the ex-husband's overreaching.
Highlights of the latest insurance cases from around the country.
Features
A liability insurer's promise to defend its insured is at the core of the protection purchased by policyholders and, in most states, the insurer will be required to defend any suit alleging facts that possibly could result in a judgment against the insured that would be covered by the policy's duty to indemnify. A duty to defend will be found where the undisputed facts surrounding a claim — typically the language of the policy and the allegations of the complaint — permit proof of a claim potentially covered by the duty to indemnify. The complaint-allegations test, or what some jurisdictions term the eight-corners rule, results in the duty to defend being easily found by courts, commensurate with the broad contract language, and the policy's intention to afford the insured 'litigation insurance' protecting against the risk and burden of litigation.
Features
Reversing established precedent, a Fourth Department panel has ruled that when a parent is deemed unable to care for a child due to the parent's mental illness or retardation, the Family Court may determine whether 'some form of posttermination contact' is nonetheless in the child's best interests.
Traditionally, courts have found bad faith in two contexts — when an insurer wrongfully denies coverage in a first-party claim and when an insurer's improper refusal to settle a third-party claim results in an excess verdict against the insured. Courts have recognized bad faith causes of action under these circumstances in light of the type of policy involved and the nature of the insured's interests that are at stake.
New York State is a 'best interest' custody state that gives the courts a wide latitude to choose a parenting custody plan that is in the best interest of the children and family. DRL ' 240 specifically states: 'The court shall ' enter orders for custody and support as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interest of the child.' The standard is well ensconced in cased law as well. How does this concept mesh with the Court of Appeals' decision in <i>Braiman v. Braiman</i>, which stated that courts should not impose joint custody arrangements on parents who are 'severely antagonistic and embattled' and who are unable to put aside their differences for the benefit of the children?
A significant body of case law holds that illegal aliens are not precluded, by virtue of their illegal status, from recovering insurance benefits. While that may be the law, and we do not mean to suggest otherwise, one's illegal status may not confer upon an insured or claimant greater rights than those enjoyed by someone who is in the United States legally. A legal insured may not make material misrepresentations in an application for insurance. A legal insured may also be required to satisfy certain eligibility requirements as a prerequisite to coverage. It could not have been anyone's intention that illegal alien status would be used as a free pass, effectively negating eligibility requirements and the insurers' right to void policies where an applicant misrepresents or conceals a material fact.