GLF Articles
A GUIDE TO FILING AN INSURANCE CLAIM
November 2nd, 2012
In the wake of tremendous damage to property, business losses and in some cases loss of life caused by Hurricane Sandy to New York and New Jersey in particular, it is best to keep in mind some simple pointers in filing an insurance claim:
I. DOCUMENT EVERYTHING!!!
1. Take pictures or a video of the damages caused to your home, automobile(s), boat(s) or business.
2. Take pictures or a video of what specifically caused the damage to your home, auto(s) boat(s) or business. For example: fallen tree in your backyard, fallen tree in neighbor’s backyard, fallen power lines owned by utility company such as Con Ed or a City government sewer system.
3. Review the items or belongings that you have in your home before the storm and compare them to the damages.
4. Review the inventory or equipment of your business before the storm and compare them to the damages.
5. If you suffered bodily injury keep your medical bills, x-ray/MRI reports, doctor’s or therapists’ report and pharmacy receipts.
6. Quantify your loss. It may sound harsh but losses are measured in dollars when it comes to insurance claims.
II. REVIEW ALL INSURANCE POLICIES
1. Locate all potentially applicable insurance policies. For example: homeowners, automobile, boat, business, premises liability, life insurance, umbrella policy.
2. Look at endorsements, deductibles and policy limits of your insurance policies. If you are overwhelmed by all of these, consult an attorney or public adjuster to represent you through the process.
III. DEALING WITH INSURANCE COMPANIES
1. Notify your insurance carrier as soon as possible. Depending on the policy, a late notice can be grounds later on for the insurance company to deny coverage.
2. Cooperate with insurance companies. Policy usually contains duty to cooperate in the investigation, providing records, defense and settlement of the insurance claim.
3. Be Honest. Do not file claims that you know are fraudulent.
4. Be Realistic about your expectations. You cannot expect a million dollar settlement when the property damage is only a few thousand dollars.
5. Remember that the primary duty of an insurance carrier is to deliver the promise to pay within the time required by law such as the New York State Prompt Pay Law.
6. Finally, an amendment to New York’s insurance law in 2009 gave insurance claimants the right to institute direct action litigation against an insurance company without waiting for judgment against a tortfeasor, where the insurance carrier had previously disclaimed coverage on late notice grounds.
Sources: New York Insurance law, NYCLA Insurance Law Committee, NY State Department of Insurance, FEMA (See weblink below)
http://www.fema.gov/disaster-survivor-assistance
Attorney Sid Garbanzos, a graduate of the City University of New York School of Law practices practices insurance law, commercial and general civil litigation. This article is written for a gratuitous purpose only and no attorney-client relationship is created in this publication. This article is not, nor intended to be legal advice. The reader should consult with a licensed legal professional based on his or her individual circumstances. For further information call Garbanzos Law Firm, P.C. At (212)217-0670 in Manhattan or (718)725-7324 in Queens www.garbanzoslaw.com.
Tags: Guide to filing an insurance claim Hurricane Sandy New York insurance law
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Lack of Jurisdiction Bars Philippine Claimants to Recover Money Judgment in New York
October 30th, 2012
The New York Court of Appeals held ( June 2012) that New York courts lack the jurisdiction to adjudicate the right to property claimed by Philippine victims of human rights under the sovereign immunity doctrine.
This was a turn-over proceeding brought in New York under NY Civil Practice Laws and Rules or CPLR 5225(b) against Merrill Lynch to make it deliver to the petitioner certain brokerage assets Merrill controlled. CPLR 5225(b) provides for an expedited special proceeding by a judgment creditor to recover “money or other personal property” belonging to a judgment debtor “against a person in possession or custody of money or other personal property in which the judgment debtor has an interest” in order to satisfy a judgment (Starbare II Partners v Sloan, 216 AD2d 238, 239). The assets were part of the billions of dollars worth that Ferdinand Marcos stole from the Republic of the Philippines during his presidency. It was clear that the assets were the result of his thefts. (His maximum salary during his term of office was calculated to be less than $400,000, as against his worldwide assets in the billions.) (Much of it amassed, no doubt, to keep wife Imelda in shoes.)
The petitioner who brought the turn-over proceeding was only one of many who, or whose family, were “horrifically brutalized” by the “nefarious” regime, as the Court of Appeals describes it, but the issue of whether any of them can reach the assets in the New York proceeding depended on whether the Republic itself was an indispensable party.
It was, holds the Court, and the lack of jurisdiction over it mandates a dismissal in Swezey v. Merrill Lynch etc., 19 N.Y.3d 543, 950 N.Y.S.2d 293 (June 26, 2012).
This is a rare result because before an outright dismissal is justified, a New York court is required to negotiate the five factors listed in CPLR 1001(b) to see if the case can proceed without the particular party. In most cases it can, but in the present case it can’t, holds the Court.
The Court sifts all five factors. We can highlight one of them: the second on the CPLR 1001(b) list, which requires the court to consider the prejudice that might accrue to the existing defendant, or to the unjoined party, if the case is allowed to proceed without it. CPLR 1001(b) allows actions to proceed when justice requires even when a person has not been made a party based on the following (5) considerations: 1) whether the petitioner has another remedy if the action is dismissed for nonjoinder, (2) the prejudice that may accrue from nonjoinder to the defendant or to the nonjoined party, (3) whether and by whom prejudice might have been avoided or may in the future be avoided, (4) the feasibility of a protective provision, and (5) whether an effective judgment may be rendered in the absence of the nonjoined party.
The Court here sees such prejudice. Prejudice to the defendant, because if the adjudication is made in favor of one of the existing parties, without the Republic present, and Merrill is required to pay out to that winner, it might face a double liability if and when the Republic, in a later proceeding, makes claim to the same assets. Not having been a party to the earlier proceedings, the Republic could not be bound by them.
That immediately suggests that the Republic can answer its own dilemma merely by waiving its sovereign immunity and submitting to jurisdiction, but the Court rejects that idea for what boils down to an issue of “international comity”: it says that the Republic itself, presumably representing all of its people, should be left to decide who among them should be allowed to share in Marcos’s assets recovered anywhere. In an opinion by Judge Graffeo citing several high court cases here and abroad that have already addressed some Marcos larcenies, the Court says that wresting control over these matters from the Philippine judicial system would disrupt international comity and reciprocal diplomatic self-interests. Since only the Republic can decide whether it should submit to New York’s jurisdiction, it would be inappropriate to force [it] to litigate in our state court system ….
In the Court’s 2003 Saratoga decision (Digest 525), the action was allowed to proceed “in a sovereign’s absence”, but the Court distinguishes Saratoga because the question there was “the fundamental balance of governmental powers under our State Constitution” while here in Swezey the issue – “the ownership of investment assets” in a dispute that crosses many international borders – stands “in stark contrast”. Hence the Court decides that it should not support “another limited exception” to what the Court describes – now citing the U.S. Supreme Court decision in Republic of the Philippines v. Pimentel, 553 U.S. 851 (2008) – as the “general rule” thatan assertion of immunity by a sovereign entity requires dismissal of an action in which it is a necessary party if the entity’s claims are not frivolous and there is a potential for injury to its interests.
However Saratoga may have qualified as an exception to that rule – and we may note that Saratoga itself was by a divided (4-3) Court – the present case doesn’t.
The concerns of the Republic of the Philippines are found paramount here because of its interest in having its own courts adjudicate disputes “over property that may have been stolen from its public treasury and transferred to New York through no fault” of its own.
Sources: New York State Law Digest NYSBA, Published Opinions of New York Court of Appeals, New York Civil Practice Law and Rules, New York Civil Litigation Manual
Tags: Sovereign Immunity New York Courts lack jurisdiction to adjudicate right to property claim
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STARTING AUGUST 15, 2012 YOUNG “DREAMERS” CAN APPLY FOR WORK PERMIT UNDER DEFERRED ACTION PROGRAM
June 16th, 2012
On June 15, 2012 the Obama Administration announced that it would grant “DEFERRED ACTION” (a form of administrative relief from deportation) for certain young people who were brought to the U.S. as young children and meet certain criteria. Persons will be eligible for deferred action if they can demonstrate that they:
- came to the United States before the age of sixteen (16);
- were in the U.S. on June 15 , 2012 and have continuously resided in the United States for at least five (5) years;
- are currently in school, graduated from high school, obtained a general education development certificate, or were honorably discharged from the Coast Guard or Armed Forces;
- have not been convicted of certain crimes;
- are not a threat to national security or public safety; and
- are not above the age of 30.
Deferred action will be granted in two-year increments for those who can prove they are eligible. According to the Associated Press as quoted in the New York Times, the deferred action could affect as many as 800,000 or even as high as 1.2 young immigrants otherwise know as “Dreamers.”
Those eligible CAN APPLY to get a WORK PERMIT or employment authorization during the two-year period; the work permit can be RENEWED. Existing regulations governing deferred action provide for work authorization for those who can show it is an economic necessity. “Economic necessity” is a legal standard under immigration law that an immigrant has to show and demonstrate to USCIS (Citizenship and Immigration Service) in obtaining an employment authorization or work permit.
An immigrant who is in deportation proceeding or subject to a final order of DEPORTATION who can demonstrate that he or she meets the eligibility criteria can request a review of his or her case and receive deferred action for a period of two years, subject to renewal. All cases will be considered on an individualized basis.
A Department of Homeland Security press releases states that a process for applying for this relief will be implemented by Immigration and Customs Enforcement and U.S. Citizenship and Immigration Services within (60) sixty days meaning USCIS will take applications starting August 15, 2012.
Sources: New York Times, National Immigration Forum, Department of Homeland Security
Attorney Sid Garbanzos, a graduate of the City University of New York School of Law practices practices immigration and family law, commercial and general civil litigation. This article is written for a gratuitous purpose only and no attorney-client relationship is created in this publication. This article is not, nor intended to be legal advice. The reader should consult with a licensed legal professional based on his or her individual circumstances. For further information call Garbanzos Law Firm, P.C. At (212)217-0670 in Manhattan or (718)725-7324 in Queens www.garbanzoslaw.com.
Tags: OBAMA ALLOWS YOUNG IMMIGRANT DREAMERS TO GET WORK PERMIT DEFERRED ACTIONA CRITERIA ELIGIBLE
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