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PLAINTIFFS, PASSENGERS IN DEFENDANT’S CAR, ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, DESPITE DEFENDANT’S CLAIM THAT THE CAR AHEAD STOPPED SUDDENLY FOR NO REASON.

The Second Department determined defendant did not raise a question of fact in this rear-end collision case. Although defendant (Alvarez) claimed Cristea’s) car stopped suddenly for no apparent reason, defendant acknowledged Cristea’s car was stopped at the time of the collision and defendant did not see the car until the collision. Plaintiffs, who were passengers in defendant Alvarez’s car, entitled to summary judgment:

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A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . While a nonnegligent explanation for a rear-end collision may include evidence of a sudden stop of the lead vehicle, vehicle stops which are foreseeable under the prevailing traffic conditions must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her vehicle and the vehicle ahead … .

Here, Cristea established his prima facie entitlement to judgment as a matter of law by submitting evidence that he was not at fault in the happening of the accident … . Cristea submitted the deposition testimony of the parties, which demonstrated that Cristea’s vehicle was stopped when it was struck in the rear by Alvarez’s vehicle. Although Alvarez testified that Cristea’s vehicle braked suddenly, he admitted that Cristea’s vehicle was stopped at the time of impact, and that he did not see Cristea’s vehicle until he hit it. Under these circumstances, Alvarez’s claim that Cristea’s vehicle braked suddenly did not raise a triable issue fact as to whether any negligence on the part of Cristea contributed to the accident … . Gonzalez v Alvarez, 2017 NY Slip Op 04819, 2nd Dept 6-14-1

 

NEGLIGENCE (REAR-END COLLISIONS, PLAINTIFFS, PASSENGERS IS DEFENDANT’S CAR, ENTITLED TO SUMMARY JUDGEMENT IN THIS REAR-END COLLISION CASE, DESPITE DEFENDANT’S CLAIM THAT THE CAR AHEAD STOPPED SUDDENLY FOR NO REASON)/TRAFFIC ACCIDENTS (REAR-END COLLISIONS, PLAINTIFFS, PASSENGERS IS DEFENDANT’S CAR, ENTITLED TO SUMMARY JUDGEMENT IN THIS REAR-END COLLISION CASE, DESPITE DEFENDANT’S CLAIM THAT THE CAR AHEAD STOPPED SUDDENLY FOR NO REASON)/REAR-END COLLISIONS (PLAINTIFFS, PASSENGERS IS DEFENDANT’S CAR, ENTITLED TO SUMMARY JUDGEMENT IN THIS REAR-END COLLISION CASE, DESPITE DEFENDANT’S CLAIM THAT THE CAR AHEAD STOPPED SUDDENLY FOR NO REASON)

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FAMILY COURT DID NOT MAKE SURE APPELLANT UNDERSTOOD THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL IN THIS ORDER OF PROTECTION MATTER, ORDER OF PROTECTION REVERSED.

The Second Department determined Family Court did not make sure appellant under stood the consequences of proceeding without counsel in this order of protection matter:

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A party in a proceeding pursuant to Family Court Act article 8 has the right to be represented by counsel… . A party, however, may waive that right, provided that he or she does so knowingly, voluntarily, and intelligently … . To ensure that a party’s waiver of the right to counsel is valid, the Family Court must conduct a “searching inquiry”… . There is no rigid formula, but the record must demonstrate that the party has chosen to proceed without counsel despite being aware of and understanding the dangers and disadvantages of doing so … .

Here, when the appellant expressed his desire to proceed without counsel, the Family Court tried to explain the dangers and disadvantages of doing so. The record shows, however, that the appellant was confused by the colloquy and did not comprehend the court’s explanation. The court nevertheless permitted him to proceed without counsel … . The deprivation of a party’s right to counsel guaranteed by Family Court Act § 262 requires reversal without regard to the merits of the unrepresented party’s position … . Matter of Gugliara v Gugliara, 2017 NY Slip Op 04840, 2nd Dept 6-14-17

 

FAMILY LAW (RIGHT TO COUNSEL, ORDER OF PROTECTION, FAMILY COURT DID NOT MAKE SURE APPELLANT UNDERSTOOD THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL IN THIS ORDER OF PROTECTION MATTER, ORDER OF PROTECTION REVERSED)/ATTORNEYS (FAMILY LAW, RIGHT TO COUNSEL, ORDER OF PROTECTION,  FAMILY COURT DID NOT MAKE SURE APPELLANT UNDERSTOOD THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL IN THIS ORDER OF PROTECTION MATTER, ORDER OF PROTECTION REVERSED)/ORDER OF PROTECTION (FAMILY LAW, RIGHT TO COUNSEL, FAMILY COURT DID NOT MAKE SURE APPELLANT UNDERSTOOD THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL IN THIS ORDER OF PROTECTION MATTER, ORDER OF PROTECTION REVERSED)/RIGHT TO COUNSEL (FAMILY LAW, ORDER OF PROTECTION, FAMILY COURT DID NOT MAKE SURE APPELLANT UNDERSTOOD THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL IN THIS ORDER OF PROTECTION MATTER, ORDER OF PROTECTION REVERSED)

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MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, THE SCHOOL INVESTIGATED THE INCIDENT WITHIN 90 DAYS, PLAINTIFF IS DEVELOPMENTALLY DISABLED, THE NOTICE WAS TWO DAYS LATE.

The Second Department, reversing Supreme Court, determined plaintiffs’ motion for leave to file a late notice of claim should have been granted. The claim alleged a school bus attendant sexually assaulted a developmentally disabled student. The school investigated the incident (which included reviewing video) and fired the bus attendant within 90 days of the last incident. The notice of claim was filed two days late if the date of the last sexual assault is used as the start of the 90 days:

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… [A] a matter of discretion, and upon consideration of all relevant facts and circumstances, courts may grant permission to claimants to serve late notices of claim. In determining whether to grant an application for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the court must consider all relevant circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the public corporation in its defense on the merits … , and “whether the claimant was an infant, or mentally or physically incapacitated” … .”While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance”… . …

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Under the circumstances of this case, the School District acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose… . Pursuant to her individualized education plan (IEP), the School District transported K.A. and hired the bus attendant who sexually assaulted her during the course of his employment. Thus, an employee of the School District was not only “directly involved” in the incident … , but he committed the intentional tortious conduct giving rise to the claim. Further, the School District itself conducted the investigation that yielded the bus attendant’s admission of abuse, and reported its findings to the police. In addition, the School District terminated the bus attendant … prior to his conviction. Accordingly, the School District acquired timely, actual knowledge of the essential facts constituting the claim, which enabled it to conduct an appropriate investigation … .

With respect to the issue of whether the School District would have been prejudiced by a late notice of claim, the plaintiffs were not required to make an extensive initial showing, merely “some evidence or plausible argument that supports a finding of no substantial prejudice” … .  Under the circumstances present here, the fact that the School District acquired actual knowledge of the essential facts constituting the claim within only a few weeks of the abuse, coupled with the fact that the notice of claim was served only two days late, demonstrated that a late notice would not have substantially prejudiced the School District … .

Further, with respect to the claims asserted on behalf of [plaintiff] K.A., as distinguished from those asserted by the parents on their own behalf, K.A.’s significant developmental disabilities weigh in favor of granting leave to serve a late notice of claim or deem a late notice served nunc pro tunc … . The record contains evidence that her NIQ score of 42 fell in the “very poor range of cognitive functioning,” that she functioned at a 4th grade learning level, and that she had “no safety awareness or self-preservation skills.” … . K.A. v Wappingers Cent. Sch. Dist., 2017 NY Slip Op 04824, 2nd Dept 6-14-17

 

EDUCATION-SCHOOL LAW (NEGLIGENCE, NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, THE SCHOOL INVESTIGATED THE INCIDENT WITHIN 90 DAYS, PLAINTIFF IS DEVELOPMENTALLY DISABLED, THE NOTICE WAS TWO DAYS LATE)/NEGLIGENCE (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, THE SCHOOL INVESTIGATED THE INCIDENT WITHIN 90 DAYS, PLAINTIFF IS DEVELOPMENTALLY DISABLED, THE NOTICE WAS TWO DAYS LATE)/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, THE SCHOOL INVESTIGATED THE INCIDENT WITHIN 90 DAYS, PLAINTIFF IS DEVELOPMENTALLY DISABLED, THE NOTICE WAS TWO DAYS LATE)

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FAILURE TO DETERMINE WHETHER DEFENDANT RECEIVED NOTICE OF THE SORA HEARING REQUIRED REVERSAL.

The Second Department determine the steps taken to notify defendant of the SORA hearing were not adequate to ensure defendant was notified. Therefore defendant could not be deemed to have waived his presence at the hearing:

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” A sex offender facing risk level classification under [SORA] has a due process right to be present at the SORA hearing'” … . “[W]here there is a question as to whether the defendant’s failure to appear is deliberate, in order to establish a waiver, evidence must be presented that the defendant was advised of the hearing date, of his right to be present, and that the hearing would be conducted in his absence” … .

Here, when defense counsel and the People initially appeared for the hearing, and the defendant failed to appear, the Supreme Court, recognizing its duty to ensure that any waiver of the defendant’s right to be present was voluntary, adjourned the matter to permit defense counsel to send a notice to the defendant, by certified mail, return-receipt requested. Defense counsel sent the letter, but never received a return receipt from the post office or a response from the defendant, with whom he had never met or consulted. Defense counsel did not indicate any efforts he made to determine whether his letter had been delivered, such as, by contacting the post office. Further, there was no evidence in the record that notice was sent to the defendant by the court, but, even presuming such [*2]notice was sent, there was no evidence as to whether the notice was delivered or returned. Nor was there evidence regarding how the court or defense counsel obtained the address to which notices were sent. Thus, as defense counsel asserted, there was reason to believe that the defendant may not have received notice of the hearing. Indeed, even the court acknowledged that possibility.

Since the record failed to establish that the defendant voluntarily waived his right to be present at the SORA hearing, the order must be reversed, and the matter must be remitted to the Supreme Court, Queens County, for a new risk level assessment hearing and a new determination thereafter, to be preceded by notice to the defendant. People v Jenkins, 2017 NY Slip Op 04869, 2nd Dept 6-14-17

 

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT, FAILURE TO DETERMINE WHETHER DEFENDANT RECEIVED NOTICE OF THE SORA HEARING REQUIRED REVERSAL)/SEX OFFENDER REGISTRATION ACT (SORA) ( FAILURE TO DETERMINE WHETHER DEFENDANT RECEIVED NOTICE OF THE SORA HEARING REQUIRED REVERSAL)

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THIRD-PARTY BENEFICIARY OF A CONTRACT DEMONSTRATED BREACH OF CONTRACT, CRITERIA EXPLAINED, A HEARING WAS REQUIRED TO ASSESS DAMAGES, CONVERSION CAUSE OF ACTION CANNOT BE BASED UPON BREACH OF CONTRACT ALONE.

The Second Department determined that El Equity, which financed a line of credit, was a third-party beneficiary of a contract which required El Equity’s approval before funds could be deposited in any accounts other than those designated in the contract between SDS and GBL. El

Equity demonstrated the breach of contract, but was not entitled to summary judgment because the amount of damages was not proven. The Second Department further determined that the failure to deposit funds in violation of the contract will not also support a cause of action for conversion:

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The evidence in admissible form submitted by El Equity demonstrated, prima facie, that it was an intended third-party beneficiary of the SDS Agreement, and that SDS breached that agreement. ” A non-party [to a contract] may sue for breach of contract only if it is an intended, and not a mere incidental, beneficiary'” …  However, ” the identity of a third-party beneficiary need not be set forth in the contract or, for that matter, even be known as of the time of its execution'”… . “A party asserting rights as a third-party beneficiary must establish (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for [its] benefit and (3) that the benefit to [it] is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [it] if the benefit is lost”…  ” In determining third-party beneficiary status it is permissible for the court to look at the surrounding circumstances as well as the agreement,'” and ” the obligation to perform to the third party beneficiary need not be expressly stated in the contract'” … .

Here, El Equity was not a party to the SDS Agreement. However, El Equity established, prima facie, that the SDS Agreement was a valid and binding contract between GBL and SDS, and that El Equity was an intended third-party beneficiary of the SDS Agreement… . * * *

El Equity also demonstrated, prima facie, that SDS breached the SDS Agreement. The SDS Agreement required SDS to “pick up all” MMIS checks “and deposit them into the Escrow Account,” and SDS admittedly did not deposit four MMIS checks into the Escrow Account, but gave those checks directly to GBL. Contrary to SDS’s contention, El Equity established, prima facie, that, to the extent that it sustained any damages, those damages were caused, at least in part, by SDS’s breach of the SDS Agreement … . Greater Bright Light Home Care Servs., Inc. v Jeffries-El, 2017 NY Slip Op 04821, 2nd Dept 6-14-17

 

CONTRACT LAW (THIRD-PARTY BENEFICIARY OF A CONTRACT DEMONSTRATED BREACH OF CONTRACT, CRITERIA EXPLAINED, A HEARING WAS REQUIRED TO ASSESS DAMAGES)/THIRD-PARTY BENEFICIARY (CONTRACT LAW, THIRD-PARTY BENEFICIARY OF A CONTRACT DEMONSTRATED BREACH OF CONTRACT, CRITERIA EXPLAINED, A HEARING WAS REQUIRED TO ASSESS DAMAGES)/CONVERSION (CONTRACT LAW, CONVERSION CAUSE OF ACTION CAN NOT BE BASED UPON BREACH OF CONTRACT ALONE)

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SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE.

The Second Department, reversing Supreme Court, determined Supreme Court’s sua sponte ordering of a Frye hearing in this medical malpractice action was an impermissible avoidance of the law of the case doctrine. Another justice, in the same action, had denied the summary judgment motion brought by defendant doctor (Vartolomei). The Second Department held that Supreme Court’s ordering a Frye hearing and thereafter dismissing the complaint against Vartolomei was improper, as the hearing was used to rehear and grant the previously denied summary judgment motion:

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The general purpose of a Frye hearing is to determine whether an expert’s opinion is ” based on principles that are sufficiently established to have gained general acceptance as reliable'” … . Here, however, the overall nature of the questions posed at the hearing directed, sua sponte, by the Supreme Court, as well as statements by the court, establish that the true purpose of the hearing was not to determine whether Dr. Epstein’s opinions were based on principles that are sufficiently established to have gained general acceptance as reliable. Rather, the hearing purported to revisit the determination made in the order … denying Vartolomei’s motion for summary judgment insofar as asserted against her. In doing so, the court violated the doctrine of law of the case by completely disregarding the prior order, issued by a Justice of coordinate jurisdiction, that had concluded that triable issues of fact existed as to whether Vartolomei departed from accepted medical standards of care and whether such departures were a proximate cause of the injuries sustained by the decedent … .

Moreover, this Court has held that “[a] court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, there were no extraordinary circumstances warranting the sua sponte dismissal of the complaint insofar as asserted against Vartolomei. Aguilar v Feygin, 2017 NY Slip Op 04811, 2nd Dept 6-14-17

 

CIVIL PROCEDURE (LAW OF THE CASE, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/NEGLIGENCE (MEDICAL MALPRACTICE, CIVIL PROCEDURE, LAW OF THE CASE, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/MEDICAL MALPRACTICE (CIVIL PROCEDURE, FRYE HEARING, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/EVIDENCE (MEDICAL MALPRACTICE, FRYE HEARING,  SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/LAW OF THE CASE (MEDICAL MALPRACTICE, FRYE HEARING, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/FRYE HEARING (MEDICAL MALPRACTICE, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)/SUA SPONTE DISMISSAL OF COMPLAINT (MEDICAL MALPRACTICE, SUPREME COURT IMPROPERLY, SUA SPONTE, ORDERED A FRYE HEARING AFTER WHICH THE COMPLAINT AGAINST A DOCTOR IN THIS MEDICAL MALPRACTICE ACTION WAS, SUA SPONTE, DISMISSED, SUPREME COURT IMPROPERLY USED A FRYE HEARING TO AVOID THE LAW OF THE CASE DOCTRINE)

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INSURER WHICH OPTED NOT TO DEFEND THIS CONSTRUCTION ACCIDENT CASE WAS REQUIRED TO INDEMNIFY THE INSURERS WHICH SETTLED THE CLAIM FOR BOTH DAMAGES AND EXCESS ATTORNEYS’ FEES, PLAINTIFF HIRED A MORE EXPENSIVE LAW FIRM ($795/HR) RATHER THAN USE THE FIRM HIRED BY THE WORKERS’ COMPENSATION CARRIER ($150/HR).

The First Department, over a dissent, determined the plaintiff’s insurer (RLI), which opted not to defend this construction accident case, was required to indemnify the insurers who paid the $2.5 million settlement, both for the damages and the excess attorney’s fees. The plaintiff opted to hire a law firm other that the firm used by the workers’ compensation carrier (SLI). The workers’ compensation carrier paid $150/hour toward the other attorneys’ fees. The firm hired by plaintiff (Greenberg Traurig) charged $795/hr. The dissent argued the fees should have been capped at $150/hr. The other issue addressed by the court was the late notification of plaintiff’s insurer. The late notice was excused because of a good faith belief recovery was limited to workers’ compensation (and therefore subject to a policy exclusion):

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RLI’s argument that the voluntary payment doctrine bars recovery of amounts paid to Greenberg Traurig in defense of the underlying claim is without merit. Having chosen to deny coverage and not participate in the defense, RLI “excluded itself from any aspect of the [p]laintiff’s defense in the Vasquez estate’s action,” including the negotiation of attorneys’ fees and the selection of attorneys, as so found by the motion court, and cannot now be heard to complain. Plaintiff is entitled to recover attorneys’ fees incurred in defense of the underlying action as “damages which are the natural and probable consequence of the breach” by RLI of the contract of insurance … .

We reject defendant’s argument that the $150 per hour contributed by SIF acts as a ceiling on fees … . Any agreement between SIF and plaintiff as to fees has no bearing on RLI’s responsibility to provide a defense, save as it pertains to any eventual allocation of defense costs as between the two carriers … . The record does not contain a copy of the SIF policy, so we are unable to make any determination as to whether the carriers share the costs of defense in equal parts as primary carriers, or whether defendant RLI is solely responsible. It may be noted that under RLI’s policy, competing primary insurers are to contribute on an equal basis. Cohen Bros. Realty Corp. v RLI Ins. Co., 20 17 NY Slip Op 04776, 1st Dept 6-13-17

 

INSURANCE LAW (ATTORNEY’S FEES, INSURER WHICH OPTED NOT TO DEFEND THIS CONSTRUCTION ACCIDENT CASE WAS REQUIRED TO INDEMNIFY THE INSURERS WHICH SETTLED THE CLAIM FOR BOTH DAMAGES AND EXCESS ATTORNEYS’ FEES, PLAINTIFF HIRED A MORE EXPENSIVE LAW FIRM ($795/HR) RATHER THAN USE THE FIRM HIRED BY THE WORKERS’ COMPENSATION CARRIER ($150/HR))/ATTORNEYS (INSURANCE LAW, FEES, INSURER WHICH OPTED NOT TO DEFEND THIS CONSTRUCTION ACCIDENT CASE WAS REQUIRED TO INDEMNIFY THE INSURERS WHICH SETTLED THE CLAIM FOR BOTH DAMAGES AND EXCESS ATTORNEYS’ FEES, PLAINTIFF HIRED A MORE EXPENSIVE LAW FIRM ($795/HR) RATHER THAN USE THE FIRM HIRED BY THE WORKERS’ COMPENSATION CARRIER ($150/HR))/EMPLOYMENT LAW (INSURANCE LAW, WORKERS’ COMPENSATION LAW, INSURER WHICH OPTED NOT TO DEFEND THIS CONSTRUCTION ACCIDENT CASE WAS REQUIRED TO INDEMNIFY THE INSURERS WHICH SETTLED THE CLAIM FOR BOTH DAMAGES AND EXCESS ATTORNEYS’ FEES, PLAINTIFF HIRED A MORE EXPENSIVE LAW FIRM ($795/HR) RATHER THAN USE THE FIRM HIRED BY THE WORKERS’ COMPENSATION CARRIER ($150/HR))

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ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED.

The First Department, over a detailed dissent which lays out the complicated facts, affirming Supreme Court (Reed, J.), determined the action by insurer’s subrogee (Nationwide) against the insured’s subrogee (US Underwriters) in this Labor Law (construction accident) action was barred by collateral estoppel and res judicata. The underlying action had settled for about $1.55 million.

FROM THE DISSENT (THE FACTS):

On or about July 9, 2001, Kerwin Park, an employee of Armadillo Construction Corp., a demolition contractor, sustained personal injuries while working on a construction site. Park commenced the underlying Labor Law action against the general contractor (Artimus) and others. Nationwide, Artimus’s insurer, tendered the defense of the action to Armadillo and Armadillo’s insurer, U.S. Underwriters; Artimus was an additional insured on the U.S. Underwriters policy. By letter dated August 31, 2001, U.S. Underwriters denied coverage to Artimus, copying the broker and Armadillo on the letter, based on late notice of occurrence and various exclusions in the policy. …[T]he underlying action settled for approximately $1.55 million. Nationwide contributed to the settlement on Artimus’s behalf. Artimus also obtained a default judgment on its third-party indemnification claim against Armadillo. … Artimus moved to restore its claims against Armadillo to the active calendar in the declaratory judgment action. In granting the motion, the court (Ramos, J.) cited to Justice Cahn’s earlier decision in the action and observed that no decision had been made concerning Armadillo’s entitlement to coverage. * * * Justice Reed granted U.S. Underwriters’ motion to dismiss the complaint, concluding that Artimus, as Armadillo’s subrogee, was collaterally estopped from bringing the instant action, because it was in privity with Armadillo, and whatever rules of collateral estoppel applied to Armadillo would also apply to Artimus (and its subrogee, Nationwide). The court found that as a consequence, Artimus was bound by Justice Cahn’s order. The court also found that the action was barred by the doctrine of res judicata.

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FROM THE MAJORITY:

… [T]he parties were afforded a full and fair opportunity to litigate the insurance coverage issues in the prior action. Nationwide is therefore collaterally estopped from litigating the same issues already decided against its subrogor, Artimus, who in turn is estopped from litigating the same issues decided against its subrogor, Armadillo, as a subrogee of the insured.

Moreover, the principles of res judicata favor defendants herein. Nationwide and Artimus seek to enforce the judgment that they were awarded against Armadillo in the third-party personal injury action. However … in the prior action the court found that the coverage exclusion with respect to the personal injury action in U.S. Underwriters policy was applicable. By bringing this action as subrogees of Artimus and Armadillo under Insurance Law § 3420, Nationwide and Artimus are essentially seeking to relitigate Artimus’s claims for coverage. “Res judicata is designed to provide finality in the resolution of disputes, recognizing that [c]onsiderations of judicial economy as well as fairness to the parties mandate, at some point, an end to litigation” … . Nationwide Mut. Ins. Co. v U.S. Underwriters Ins. Co., 2017 NY Slip Op 04774, 1st Dept 6-13-17

 

 

INSURANCE LAW (ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)/CIVIL PROCEDURE (INSURANCE LAW, LABOR LAW-CONSTRUCTION LAW, ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)/LABOR LAW-CONSTRUCTION LAW (INSURANCE LAW, CIVIL PROCEDURE, ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)/COLLATERAL ESTOPPEL (INSURANCE LAW, LABOR LAW-CONSTRUCTION LAW, ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)/RES JUDICATA (INSURANCE LAW, LABOR LAW-CONSTRUCTION LAW, ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)/PRIVITY (INSURANCE LAW, LABOR LAW-CONSTRUCTION LAW, ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)

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PLAINTIFF’S GENDER DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED.

The First Department, reversing Supreme Court, determined plaintiff’s gender discrimination suit should not have been dismissed:

As ostensibly nondiscriminatory reasons for terminating plaintiff, defendants pointed to plaintiff’s alleged management deficiencies; her alleged insubordination, by, among other things, refusing a directive to extend her vacation; and her alleged concealment of her romantic relationship with a subordinate.

In response, plaintiff raised issues of fact as to pretext … . Among other things, plaintiff points out that her termination on June 30, 2011, represented a drastic shift from the favorable performance review which she received only three weeks earlier. Indeed, plaintiff was on vacation for nearly a week of that three-week time period. Nothing in the record explains why any defects in plaintiff’s management style, identified in her otherwise favorable performance review, suddenly warranted her termination. Defendants’ assertion that plaintiff was insubordinate and hostile is belied by the record, which shows nothing more than innocuous e-mail exchanges between plaintiff and her superior … during the several days prior to the termination. Finally, defendants’ assertion that plaintiff’s concealing of her relationship with her subordinate was a ground for termination is belied by, among other things, emails exchanged only a week earlier, demonstrating that the subordinate would be reporting to another manager, in order to avoid any appearance of impropriety.

Plaintiff has also pointed to evidence of gender bias, in the form of [her superior’s] holding women, including plaintiff, to a different standard than men in the workplace. Nor were these mere “stray remarks.” To the contrary, [her superior] told plaintiff that she lacked “emotional intelligence and empathy toward others,” which were perceived as shortcomings in her ability to manage her subordinates, and which were “amplified because [she was] in a high profile seat and female.” Barone v Emmis Communications Corp., 2017 NY Slip Op 04787, 1st Dept 6-13-17

EMPLOYMENT LAW (HUMAN RIGHTS LAW, GENDER DISCRIMINATION, PLAINTIFF’S GENDER DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED)/HUMAN RIGHTS LAW (EMPLOYMENT LAW, PLAINTIFF’S GENDER DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED)/GENDER DISCRIMINATION (EMPLOYMENT LAW, HUMAN RIGHTS LAW, GENDER DISCRIMINATION, PLAINTIFF’S GENDER DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED)

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TRIAL COURT DID NOT ABUSE ITS DISCRETION IN NOT LETTING THE POSSESSION-OF-A-BB-GUN COUNT GO TO THE JURY BECAUSE THE COUNT COULD CONFUSE THE JURY AND LEAD TO A COMPROMISE VERDICT, DEFENDANT WAS CONVICTED OF POSSESSION OF A 9 MM HANDGUN. 

The First Department, in a full-fledged opinion by Justice Tom, over a two-justice dissenting opinion by Justice Acosta, determined the trial court properly dismissed the count of the indictment which charged possession of a BB gun. Defendant was charged with possession of the BB gun as well as possession of a 9 mm handgun. It was alleged defendant threw both under a car as the police approached. Defendant produced a declaration (against penal interest) by a non-testifying witness (Ramsanany) who claimed (in the declaration) the handgun was his. In rebuttal the People presented a detective (DeLoren) who testified Ramsanany, when confronted, admitted his declaration about owning the handgun was a lie. The dissent argued the BB gun count should have gone to the jury, as it was an integral part of the defense and would not have caused jury confusion. The trial court ruled that the BB gun count could confuse the jury and lead to a compromise verdict:

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FROM THE DISSENT:

I disagree with the majority’s position that submission of the air pistol count “could only confuse” the jury. Indeed, in allowing testimony about Ramsanany’s declaration that he, and not defendant, possessed the 9 millimeter Taurus pistol, the court necessarily found that it did not confuse the issues or mislead the jury  … .

In any event, under the circumstances, submission of the air pistol charge would not have distracted the jury or merely allowed it to reach a verdict based on mercy or compromise; rather, submission of the charge would have helped the jury arrive at a fair verdict if it had credited the defense, a defense supported by defendant’s and Gil’s testimony and Ramsanany’s declaration, as well as the lack of DNA or fingerprint evidence indicating which pistols were in defendant’s possession. Instead, because the court dismissed the air pistol count, the jury had no basis on which to convict defendant of possession of only the air pistol, and not the 9 millimeter Taurus pistol, even if it credited the defense, leaving the jury to convict defendant of a more serious offense or acquit him altogether. This was particularly troubling, given that Ramsanany did not testify at trial. Any claims by the prosecution that Ramsanany was coerced by defendant into assuming criminal responsibility for the air pistol could only have been explored through Detective DeLoren. It seems to me patently unfair to provide Ramsanany’s declaration and DeLoren’s rebuttal to the jury and then essentially tell the jury to forget about that testimony and focus only on the 9 millimeter Taurus pistol. People v Boyd, 2017 NY Slip Op 04809, 1st Dept 6-13-17

 

CRIMINAL LAW (TRIAL COURT DID NOT ABUSE ITS DISCRETION IN NOT LETTING THE POSSESSION-OF-A BB-GUN COUNT GO TO THE JURY BECAUSE THE COUNT COULD CONFUSE THE JURY AND LEAD TO A COMPROMISE VERDICT, DEFENDANT WAS CONVICTED OF POSSESSION OF A 9 MM HANDGUN)/JURY CONFUSION (CRIMINAL LAW, TRIAL COURT DID NOT ABUSE ITS DISCRETION IN NOT LETTING THE POSSESSION-OF-A BB-GUN COUNT GO TO THE JURY BECAUSE THE COUNT COULD CONFUSE THE JURY AND LEAD TO A COMPROMISE VERDICT, DEFENDANT WAS CONVICTED OF POSSESSION OF A 9 MM HANDGUN)/COMPROMISE VERDICT (CRIMINAL LAW, TRIAL COURT DID NOT ABUSE ITS DISCRETION IN NOT LETTING THE POSSESSION-OF-A BB-GUN COUNT GO TO THE JURY BECAUSE THE COUNT COULD CONFUSE THE JURY AND LEAD TO A COMPROMISE VERDICT, DEFENDANT WAS CONVICTED OF POSSESSION OF A 9 MM HANDGUN)

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