Daniel M. O’Connell

Daniel M. O’Connell is a partner in the firm and has over ten years experience litigating first party property insurance coverage disputes involving commercial and residential losses, as well as insurance fraud. His practice includes coverage analysis, appraisals, mediation, trials, and appeals

Honors

• Recognized in Super Lawyers, New York Metro, Rising Stars, Insurance Coverage, 2016

Representative Matters

Abrar Deli & Grocery Hylan Corp. v. Tower National Ins. Co., Index 100249/16 (Sup. Ct. [Rich. Co.], Jan. 27, 2017) (Superstorm Sandy case dismissed based on breach of the insurance policy’s two-year suit limitation provision.)

40 East Broadway v. Charter Oak Fire Ins. Co. et. al., 2017 WL 318663, 2017 WL 375320, 2017 N.Y. Slip Op. 30131(U) (Sup. Ct, NY Co., Jan. 20, 2017) (Sup. Ct [NY Co.], Jan. 23, 2017) (Damage to commercial building due to neighboring excavation. Insurer granted summary judgment because Insured could not prove contractors acted with malice needed to prove the loss was caused by the named peril of vandalism.)

Five Towns Nissan, LLC v. Universal Underwriters Ins. Co. et. al., 2016 NY Slip Op 32316(U), 2016 N.Y. Misc. LEXIS 4347, 2016 WL 6916478 (Sup Ct. [NY Co.], Nov. 22, 2016) (Damage to auto dealership from Sandy. Property damage excluded by insurance policy’s flood exclusions, which bars coverage for “storm surge.”) This decision was reported in the PLRB Frontlines, December 28, 2016, case 9612, and Law360 Insurance on November 29, 2016, Mealey’s Litigation Report, Catastrophic Loss, Vol. 12 Issue 3, December 6, 2016 and The Harris Martin Superstorm Sandy Insurance Coverage Litigation Report, November 29 2016. This decision was preceded by the following appellate court decision: 125 A.D.3d 580, 5 N.Y.S.3d 35 (1st Dept. Feb. 25 2015) (Appellate court reversed lower court’s grant of summary judgment of up to $2M in business interruption coverage because the business interruption must be caused a covered cause of loss, which flood is not.) This decision was reported in the PLRB Frontlines, March 4, 2015 case 14024 and Law360 Insurance on March 2, 2015.

Five Towns Mason Materials v. Hermitage Ins. Co., 2016 NY Slip Op 32444 (Sup Ct. [Nassau Co.], Nov. 4, 2016) (“Overwhelming evidence” proved damage to two commercial buildings was either pre-existing or the result of excluded flood – summary judgment granted to insurer). This decision was reported in the New York Law Journal, as a Decision of Interest, on November 22, 2016, Mealey’s Litigation Report, Catastrophic Loss, Vol. 12 Issue 3, December 6, 2016, and The Harris Martin Superstorm Sandy Insurance Coverage Litigation Report, November 29, 2016.

HB Holdings & Realty Mgmt., LLC et al v. Tower Ins. Co. of N.Y., 2016 N.Y. Slip Op 31857 (U) (Sup Ct., [Westchester Co] Sept 30, 2016) (Court found pursuant to the policy’s definition, a 9″ roof deflection is not a collapse nor is the falling of portions of the ceiling, despite conflicting expert reports on cause). This decision was reported in Mealey’s Litigation Report, Catastrophic Loss, Vol. 12 Issue 1, October 12, 2016; Mealey’s Litigation Report: Insurance, Vol. 30, Issue 47, October 19, 2016; and in the PLRB Frontlines, October 19, 2016.

State Farm and Casualty Company a/s/o Robert Breier and Sabine Breier V. Homesite Home Insurance Supreme Court New York State Nassau County, Index No. 5524/13. The Court held that the action against Homesite was untimely based on both the Policy’s 2 year suit limit provision, and the 3 year statute of limitations set forth in the CPLR. The Court also agreed that the Policy exclusion for discharge or dispersal of pollutants applied to bar coverage.

TV Realty v. Tower Ins. Co. of NY, 2016 N.Y. Slip Op. 31720(U), 2016 WL 3913776 (Sup. Ct. [Bronx Co.] June 28, 2016) (Water damage to commercial building. Insurer granted summary judgment because the insured breached the policy conditions requiring prompt notice of loss and inspection of property proving the loss by failing to notify insurer of the loss for 14 days and replacing the roof through which the water entered before the insurer had an opportunity to inspect.) This decision was reported as a Decision of Interest in the New York Law Journal on July 6, 2016 and was featured in Mealey’s Litigation Report: Catastrophic Loss, Vol. 11, Issue 10, July 2016.

The Provencal LLC, v. Tower Ins. Co. of N.Y., 45 Misc. 3d 1204(A), 2014 WL 4937936, 2014 N.Y. Slip Op. 51450(u), (Sup. Ct. [Rockland Co.] Sept. 18, 2014) aff’d 138 A.D.3d 732, 30 N.Y.S. 138 (2d Dept 2016) (Commercial property damaged by storm. Following a “trial on stipulated facts,” the trial court found that the insurer had no liability for the claimed damage due to the insurance policy exclusions for loss caused by collapse, faulty design, surface water, and rain. The appellate court affirmed and held that the insurer did not waive, and was not estopped from enforcing, the insurance policy’s flood exclusion regardless of whether it was specified as a basis for the denial of coverage when the claim was denied.) These decisions were reported in: Mealey’s Litigation Report, Insurance, Vol. 28 Issue 44, September 24, 2014 and the appeal in Vol. 30 Issue 22, April 13, 2016; Mealey’s Litigation Report, Catastrophic Loss, Vol. 11 Issue 7, April 2016; PLRB/LIRB Frontlines, Nov. 5, 2014, PLRB Case 9038 and the appeal on April 20, 2016, PLRB Case 9414; Law360 Insurance on September 19, 2014, and the appeal on April 6, 2016; Advisen Front Page News April 21, 2016; and as a “Decision of Interest” in the September 24, 2014 issue of The New York Law Journal.

Northern SPY Food Co., LLC v. Tower Nat. Ins., 2016 N.Y. Slip Op. 30514(U), 2016 WL 1161522 (Sup. Ct., [N.Y. Co.] March 24, 2016) (Power outage caused by the flooding of a utility service provider’s substation was not a covered cause of loss for purposes of restaurant’s business interruption and spoilage claim.) This decision was reported in: Mealey’s Litigation Report, Catastrophic Loss, Vol. 11 Issue 7, April 2016; PLRB/LIRB Frontlines, May 4, 2016 edition, PLRB Case 9425; and as a Decision of Interest in the New York Law Journal on April 5, 2016.

CAC 3, LLC v. Tower Group, Inc., 2016 N.Y. Slip Op 30424(u), 2016 WL 1123226 (Sup. Ct., [N.Y. Co.] March 9, 2016) (Power outage caused by the preemptive shutdown by utility service provider of a substation in anticipation of flooding was not a covered cause of loss for purposes of restaurant’s business interruption and spoilage claim.) This decision was reported in: Mealey’s Litigation Report, Catastrophic Loss, Vol. 11 Issue 7, April 2016; and PLRB Frontlines, March 23, 2016 edition as case 9393.

128 Hester LLC v. New York and General Marine Ins. Co., 2014 NY Slip Op 31334, 2014 WL 2115581 (Sup.Ct.[NY Co.] May 20, 2014) rev’d 126 A.D.3d 447,5,N.Y.S.3d 69, (1st Dept. 2015) (Damage to commercial property from adjacent construction. Appellate Court reversed lower court and held that even if material information is discovered after the application for insurance is submitted, which makes the application untrue, the applicant cannot “remain silent until the . . . policy is issued. . .”) This decision was reported in the PLRB Frontlines, April 1, 2015, and in Law360 Insurance on March 6, 2015

Morales v. Castlepoint Ins. Co., 125 A.D.3d 947, 4 N.Y.S.3d 297 (2d Dept. 2015) (Fire damage to investment/rental property. Appellate court reversed the lower court and granted insurer summary judgment because there was a material misrepresentation in the application for insurance regarding occupancy of the premises. Even if the Insured was not the source of the misrepresentation, he ratified it later.) This decision was reported in the PLRB Frontlines, March 11, 2015 edition and Law360 Insurance on February 27, 2015.

Lexington Park Realty v. National Union Fire Ins. of Pittsburgh, 120 A.D.3d 413, 992 N.Y.S.2d 1 (1st Dept. August 14, 2014) (Hotel loss. The Court held that a loss caused by the misappropriation of property by a lessee or its contractor is barred by property policy’s “entrustment” exclusion regardless of whether the property is chattels. The Court also noted that the doctrine of waiver is inapplicable when the issue is the existence or nonexistence of coverage). The lower court decision was reported as a “Decision of Interest” in the April 10, 2013 issue of the New York Law Journal, N.Y.L.J. 1202595167980, at *1.

Katz v. Castlepoint Ins. Co and Tower Group Companies, Index No. 4764/2011 (Sup. Ct. Kings Cty., June 3, 2014) (Storm damage to building. Insured sought $1,554,989, mainly for cracked tile-work, separated sheetrock, electrical damage, and damaged structural elements, as well as punitive damages for an alleged conspiracy. After a trial that lasted a week and a half, the jury returned a verdict for the Insurers. After trial, the appellate court ruled that it was error for the lower court to refuse the Insurer’s request to amend its answer to add fraud as an affirmative defense). 121 A.D.3d 948, 995 N.Y.S.2d 131 (2d Dept. 2014).

James v. Tower Ins. Co. of New York, et al., 112 A.D.3d 786, 977 N.Y.S.2d 345 (2d Dept. 2013), lv. denied 23 N.Y.3d 901 (2014) (Fire damage to apartment house. Insurer granted summary judgment, which was affirmed on appeal, after establishing that the Insured’s representation during the procurement of the insurance policy that the structure would be owner occupied was false and the Insurer “would not have issued the same policy if the correct information had been disclosed in the application.”)

Rome v. Tower Ins. Co. of New York, Index 26359/2011 (Sup. Ct., Kings Co., Dec. 16, 2013) (Water damage to structure. Court awarded summary judgment to the Insurer because the insurance policy’s Water exclusion, which contained an anti-concurrent causation clause, barred the Plaintiff’s water damage claim regardless of whether a covered sewer backup contributed to that loss. The Court noted that the “evidence in the record establishes that the Plaintiff’s damage was ALSO caused by surface water.”)

181 South Franklin Associates v. Great American Insurance Company of New York, 40 Misc. 3d 1242(A), 980 N.Y.S.2d 277, (Sup. Ct., Nassau Co. July 16, 2013) (Damage to exterior of office building. Court awarded summary judgment because the insurer established that damage to a building’s facade was not caused by Hurricane Irene and was excluded from coverage under the policy). The decision was reported as a “Decision of Interest” in the August 7, 2013 issue of the New York Law Journal, was reported by the PLRB Front Lines on August 14, 2013 (case no. 8740), and was reported in Mealey’s Litigation Report, Catastrophic Loss, Vol. 8 Issue 11, August 2013.

Consulate of Lebanon v. Hermitage Ins. Co., 2013 WL 1874361, N.Y.L.J. 1202599597510, at *1, Index No. 653092/2011 (Sup. Ct., N.Y., Co. April 30, 2013) (Water damage to consulate building. Court held that coverage for interior “water damage due to heavy rain” is barred by “rain water” and sewer back up exclusions where it was established that water did not enter the premises through damage to the exterior of the building and the loss was caused by a back up of a roof drain). The decision was reported as a “Decision of Interest” in the May 14, 2013 issue of the New York Law Journal and was reported in the May 15, 2013 issue of Mealey’s Litigation Report: Insurance.

Favellato v. Tower Ins. Co. of New York, Index No. 1021/2008 (Sup. Ct., Kings Co., March 30, 2011) (The Court found as a matter of law that plaintiffs failed to provide “prompt notice” of the alleged loss, that the alleged loss was specifically excluded from coverage by the Policy’s exclusions for “wear and tear” and “faulty design,” and that plaintiffs failed to introduce any admissible evidence to support their contention that the loss occurred as a result of the February 2006 snowstorm.)

Bella-Vita LLC v. Tower Ins. Co. of New York, 29 Misc. 3d 1233A, 920 N.Y.S.2d 239, 2010 N.Y. Misc. Lexis 5952, 2010 WL 5071737, N.Y.L.J. 1202476226777, at *1 (Sup. Ct., N.Y. Co. 2010) (Bar/lounge structural damage. Court awarded summary judgment, holding that “a building in danger of collapsing is not covered under the policy…’even if it shows evidence of cracking, bulging, sagging [or] bending.’” Loss found to predate policy’s inception). The decision was also reported as a “Decision of Interest” in the December 17, 2010 issue of the New York Law Journal and was reported in the January 19, 2011 issue of Mealey’s Litigation Report: Insurance.

3039 B St. Assocs. v. Lexington Ins. Co., 740 F. Supp. 2d 671 (E.D.Pa. May 3, 2010),aff’d 444 Fed.Appx. 610, 2011 WL 4351145, 2011 U.S. App. Lexis 19311 (3d Cir 2011) (Water damage to warehouse allegedly caused by a frozen pipe that ruptured. Based on an exclusion restricting coverage if the hazard is increased by any means within the control of the insured, Lexington’s adjuster repeatedly sought certain information from the insured the Fall of 2007 and January 2009 and denied the insured’s request for an advance payment during that time. The lower court found that the insurer did not commit bad faith because the insured “either failed to provide the requested information or provided deficient and/or conflicting documentation.” On appeal the Third Circuit found that the insured’s claim was “highly questionable, and …[the insurer] reasonable investigation.” The Court held that, under the circumstances, the insurer was not required to simply take the insured’s caretaker “at his word and immediately [pay] the claim” – as a matter of law.) The lower court decision also was reported in Mealey’s Litigation Report: Insurance Bad Faith, May 13, 2010, Vol. 24-1.

120 & 122-124 Lexington Ave. Corp. v. New Hampshire Ins. Co., Index No. 107524/2007 (Sup. Ct., N.Y. Co. 2010) (Partial collapse of mixed use building. Insurer established as a matter of law that the collapse was caused by long-term wear and tear rather than an insured peril, which entitled it to summary judgment). The decision was reported in the November 11, 2009 issue of Mealey’s Litigation Report: Insurance.

3039 B St. Assocs. v. Lexington Ins. Co., 483 Fed.Appx. 693, 2012 WL 1854124 (3d Cir. 2012) (Warehouse theft. The Insured alleged that a friend who was granted access to the warehouse to remove scrap metal had stolen numerous pipes and fixtures. The lower court held that “[a]lthough the evidentiary record presents a compelling case for both [the fraud and entrustment] exclusions, … it is nevertheless clear that the entrusted property exclusion applies.” The Third Circuit affirmed.)

Classon Realty Corp. v. Tower Ins. Co. of New York, Index No. 32189/05 (Sup. Ct., Kings Co., Jan. 20, 2011) (Arson to commercial building. Following a two-week trial, a unanimous jury found by clear and convincing evidence that the insured set fire to the premises and made material misrepresentations regarding the insurance claim. On cross-examination, the insured was questioned about, among other things, a prior fraud conviction, forged documents intended to satisfy various liens against the insured – including a lien by the Department of Justice, his inconsistent statements, and other facts relevant to the insured’s credibility.)

Essa Realty Corp. v. J. Thomas Realty Corp., 70 A.D.3d 483, 894 N.Y.S.2d 417 (1st Dept. 2010) (Alleged structural damage to adjacent building. Lower court injunction overturned on appeal. Confidential resolution.)

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