Begley v City of New York, 2009 NY Slip Op 03856 (App. Div., 2nd, 2009)
In this action, the plaintiffs, who reside in New York, allege that
their son was exposed to various substances at the Forum School in New
Jersey, which caused a severe allergic reaction that led to his death.
The Forum School moved for summary judgment dismissing the complaint
and cross claims insofar as asserted against it on the ground that it
is immune from liability under New [*2]Jersey's
charitable immunity statute (NJ Stat Ann § 2A:53A-7), which provides,
in relevant part, that a nonprofit organization that is organized
exclusively for educational purposes is not liable for damages caused
by the charity's negligence. This case presents a conflict of law
problem because the New York Court of Appeals abandoned the concept of
charitable immunity more than 50 years ago on the ground that it "was
out of tune with the life about us, at variance with modern day needs
and with concepts of justice and fair dealing" (Bing v Thunig, 2 NY2d 656, 667).Where, as here, there is a "true conflict" between the law of
New Jersey and the law of New York and the local law in each
jurisdiction favors its own domiciliary, the law of the place of the
injury ordinarily governs the case (see Neumeier v Kuehner, 31
NY2d 121, 128). In this case, however, the Supreme Court properly
applied the public policy exception to the ordinary choice of law rule
because (1) there were sufficient contacts between the parties, the
occurrence, and New York and (2) enforcing New Jersey's charitable
immunity statute would violate the public policy of New York State (see Schultz v Boy Scouts of Am., 65 NY2d 189, 202) as embodied in the New York State Constitution article 1, § 16 and judicial decisions (see Rosenthal v Warren, 374 F Supp 522; Scharfman v National Jewish Hosp. & Research Ctr., 122 AD2d 939; Rakaric v Croatian Cultural Club Cardinal Stepinac Org., 76 AD2d 619).
Travelers Cas. & Sur. Co. v Honeywell Intl., Inc., 2009 NY Slip Op 04360 (App. Div., 1st, 2009)
In Certain Underwriters at Lloyd's, London v Foster Wheeler Corp. (36 AD3d 17 [2006], affd
9 NY3d 928 [2007]), this Court, after noting that a contract of
liability insurance is generally "governed by the law of the state
which the parties understood was to be the principal location of the
insured risk" (id. at 21-22 [internal quotation marks omitted]),
held that "where it is necessary to determine the law governing a
liability insurance policy covering risks in multiple states, the state
of the insured's domicile [at the time of contracting] should be
regarded as a proxy for the principal location of the insured risk" (id. at 24), and that, for such purposes, a corporate insured's domicile is the state of its principal place of
business, not the state of its incorporation (id. at 25; see also Appalachian Ins. Co. v Di Sicurata, 60 AD3d 495
[2009]). There is no dispute that the principal place of business of
the insured's predecessor, the purchaser of the policies, was in New
Jersey. Neither the predecessor's use of a New York address on some of
the policies (while also using a New Jersey address on some of the same
policies or only a New Jersey address on yet other policies), nor the
predecessor's use of New York brokers, nor the use of New York
amendatory endorsements on some of the policies (while New Jersey's or
other states' or no state-specific amendatory endorsement was used on
others), nor any of the other incidental connections to New York on
which appellants rely, raises a triable issue of fact as to whether the
predecessor made a conscious choice of New York law at the time of
contracting, or whether the application of New York law constituted the
parties' reasonable expectation, where not one of the policies contains
a choice-of-law provision and all parties knew that the risks were
spread nationwide and that the predecessor's principal place of
business was in New Jersey (cf. Foster Wheeler at 27-28).
The bold is mine.
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