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ACTION SEEKING PAYMENT OF ASSESSMENTS FOR A WORKERS’ COMPENSATION LAW SELF-INSURANCE TRUST SHOULD NOT HAVE BEEN DISMISSED.

The Fourth Department, reversing Supreme Court, determined an action by the administrator of a Workers’ Compensation Law self-insurance trust [GSIT] against employers who ceased to fund the trust should not have been dismissed:

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“Under CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” … . [W]e agree with plaintiff that the documentary evidence submitted by defendants does not conclusively establish, as a matter of law, that defendants have no contractual liability to pay the assessments at issue. * * *

[T]he record establishes that in 1998 defendants and other contractors that were involved in the construction industry and subject to the Workers’ Compensation Law with respect to their employees established the GSIT in order to comply with the law and provide workers’ compensation benefits to their employees. Thereafter, all defendants made contributions and participated in the GSIT for varying periods of time, and there is no dispute that, by the end of the 2009 fiscal year, all defendants had ceased making contributions to the GSIT. NCA Comp, Inc. v 1289 Clifford Ave., 2017 NY Slip Op 04575, 4th Dept 6-9-17

 

WORKERS’ COMPENSATION LAW (SELF-INSURANCE TRUST, ACTION SEEKING PAYMENT OF ASSESSMENTS FOR A WORKERS’ COMPENSATION LAW SELF-INSURANCE TRUST SHOULD NOT HAVE BEEN DISMISSED)/TRUSTS (WORKERS’ COMPENSATION LAW, SELF-INSURANCE TRUST, ACTION SEEKING PAYMENT OF ASSESSMENTS FOR A WORKERS’ COMPENSATION LAW SELF-INSURANCE TRUST SHOULD NOT HAVE BEEN DISMISSED)

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TITLE VESTS IN THE ADVERSE POSSESSOR AFTER TEN YEARS WITHOUT THE NEED FOR COURT ACTION, CONDUCT OF THE ADVERSE POSSESSOR TRUMPS THE POSSESSOR’S KNOWLEDGE OF A SURVEY SHOWING THE ENCROACHMENT.

The Fourth Department determined plaintiff had demonstrated title by adverse possession to a strip of land on her side of a chain link fence which was there when she purchased the property in 1986. The court rejected the argument that the action was time-barred because the ten-year adverse-possession period ended in 1996. Title vested in plaintiff in 1996 without the need for a court action. The court also rejected the argument that plaintiff was presented with a survey map upon purchase which showed the fence and the actual property line, and therefore plaintiff knew she didn’t own the land. Even if plaintiff was aware of the encroachment, the court reasoned, the fact that she cultivated the land for the requisite period of time controlled:

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Defendant contends that plaintiff was required to commence a judicial action after the requisite 10-year period passed, i.e., sooner than 2014, in order to gain title to the disputed land. We reject that contention on the ground that “RPAPL 501 (2), as amended, recognizes that title, not the right to commence an action to determine title, is obtained upon the expiration of the limitations period” (Franza, 73 AD3d at 47 [additional emphasis added]). As we explained in Franza, ” [A]dverse possession for the requisite period of time not only cuts off the true owner’s remedies but also divests [the owner] of his [or her] estate’ . . . Thus, at the expiration of the statutory period, legal title to the land is transferred from the owner to the adverse possessor . . . Title to property may be obtained by adverse possession alone, and [t]itle by adverse possession is as strong as one obtained by grant’ ” (id.). Contrary to defendant’s contention, plaintiff had no legal obligation to take any legal action to obtain title to the disputed land after 1996 inasmuch as title vested with her that year upon the expiration of the 10-year period. * * *

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Plaintiff testified that she received the survey after she closed, but that she did not know how to read the survey. When she purchased her home in 1986 and from that time forward, she believed that she owned the strip of land in dispute. Even if plaintiff had read the survey and was aware of the encroachment, the court properly determined that such would not defeat her claim of right. “Conduct will prevail over knowledge, particularly when the true owners have acquiesced in the exercise of ownership rights by the adverse possessors. The fact that adverse possession will defeat a [survey] even if the adverse possessor has knowledge of the [survey] is not new” … . In addition, plaintiff established that the chain-link fence was in place from at least 1986, and that she cultivated and maintained the lawn on her side of the fence from that time thereafter … . Slacer v Kearney, 2017 NY Slip Op 04589, 4th Dept 6-9-17

 

REAL PROPERTY (TITLE VESTS IN THE ADVERSE POSSESSOR AFTER TEN YEARS WITHOUT THE NEED FOR COURT ACTION, CONDUCT OF THE ADVERSE POSSESSOR TRUMPS THE POSSESSOR’S KNOWLEDGE OF A SURVEY SHOWING THE ENCROACHMENT)/ADVERSE POSSESSION  (TITLE VESTS IN THE ADVERSE POSSESSOR AFTER TEN YEARS WITHOUT THE NEED FOR COURT ACTION, CONDUCT OF THE ADVERSE POSSESSOR TRUMPS THE POSSESSOR’S KNOWLEDGE OF A SURVEY SHOWING THE ENCROACHMENT)/SURVEYS (ADVERSE POSSESSION, TITLE VESTS IN THE ADVERSE POSSESSOR AFTER TEN YEARS WITHOUT THE NEED FOR COURT ACTION, CONDUCT OF THE ADVERSE POSSESSOR TRUMPS THE POSSESSOR’S KNOWLEDGE OF A SURVEY SHOWING THE ENCROACHMENT)

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PLAINTIFF’S EVIDENCE WAS SUFFICIENT TO RAISE TRIABLE QUESTIONS OF FACT ABOUT WHETHER THE DEFECT IN THE WALKWAY WAS TRIVIAL AND WHETHER THE DEFECT CAUSED THE SLIP AND FALL.

The Fourth Department determined the evidence submitted by the plaintiff raised a question of fact about the cause of her fall because the evidence identified the only reasonable cause of the fall:

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We reject defendants’ contentions that there was no non-trivial defect in the temporary walkway and that plaintiff can only speculate as to the cause of her fall. “[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case . . . , including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … . The existence or non-existence of a defect ” is generally a question of fact for the jury’ ” … . Thus, “there is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable . . . and therefore . . . granting summary judgment to a defendant based exclusively on the dimension[s] of the . . . defect is unacceptable” … . Here, the record contains testimony and averments from plaintiff and her husband describing, as well as photographs depicting, the alleged defect and its location. Such evidence, considered as a whole, “render[s] any other potential cause of [plaintiff’s] fall [apart from the identified alleged defect] sufficiently remote or technical to enable [a] jury to reach [a] verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence” … . Divens v Finger Lakes Gaming & Racing Assn., Inc., LP, 2017 NY Slip Op 04612 4th Dept 6-9-17

NEGLIGENCE (SLIP AND FALL, PLAINTIFF’S EVIDENCE WAS SUFFICIENT TO RAISE TRIABLE QUESTIONS OF FACT ABOUT WHETHER THE DEFECT IN THE WALKWAY WAS TRIVIAL AND WHETHER THE DEFECT CAUSED THE SLIP AND FALL)/SLIP AND FALL (PLAINTIFF’S EVIDENCE WAS SUFFICIENT TO RAISE TRIABLE QUESTIONS OF FACT ABOUT WHETHER THE DEFECT IN THE WALKWAY WAS TRIVIAL AND WHETHER THE DEFECT CAUSED THE SLIP AND FALL)/TRIVIAL DEFECT (SLIP AND FALL, PLAINTIFF’S EVIDENCE WAS SUFFICIENT TO RAISE TRIABLE QUESTIONS OF FACT ABOUT WHETHER THE DEFECT IN THE WALKWAY WAS TRIVIAL AND WHETHER THE DEFECT CAUSED THE SLIP AND FALL)

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BANK’S MANAGER WAS AWARE OF ICE IN THE PARKING LOT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, BANK DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE.

The Fourth Department determined defendant bank’s (HSBC’s) motion for summary judgment should not have been granted in this ice slip and fall case. The defendant bank’s manager testified he was aware of ice in the parking lot. Therefore the bank did not demonstrate a lack of constructive notice of the dangerous condition:

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We agree with plaintiff, however, that the court erred in granting that part of the cross motion seeking dismissal of plaintiff’s claim against HSBC based on constructive notice, inasmuch as HSBC, by its own submissions, including in particular the deposition testimony of the HSBC branch manager, raised triable issues of fact in that regard … . The branch manager testified, inter alia, that he was aware on the morning of the accident that an ice advisory was in effect, that he remembered that it was icy that day, that he observed ice on the premises when he arrived at work and, with respect to the location of plaintiff’s accident, that he “was surprised plaintiff had parked there because of how visible the ice was.” That testimony alone warranted denial of the cross motion in part, inasmuch as it raised triable issues of fact with respect to constructive notice… . We therefore modify the order by denying the cross motion insofar as it sought dismissal of plaintiff’s claim based on constructive notice and reinstating that claim against HSBC.  Zazzaro v HSBC Bank USA, N.A., 2017 NY Slip Op 04607, 4th Dept 6-9-17

NEGLIGENCE (SLIP AND FALL, BANK’S MANAGER WAS AWARE OF THE ICE IN THE PARKING LOT WHERE PLAINTIFF SLIPPED AND FELL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, BANK DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE)/SLIP AND FALL (NEGLIGENCE, CONSTRUCTIVE NOTICE, BANK’S MANAGER WAS AWARE OF THE ICE IN THE PARKING LOT WHERE PLAINTIFF SLIPPED AND FELL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, BANK DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE)

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DUE TO NEGLIGENCE BY A TIRE SHOP WHICH CONCEDED LIABILITY, A WHEEL FLEW OFF DEFENDANT’S CAR AND STRUCK PLAINTIFF’S CAR, DEFENDANT-DRIVER’S CROSS MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED.

The Fourth Department, over a dissent, determined defendant’s (Wagner’s) cross-motion for summary judgment was properly denied. A wheel came off defendant’s car and struck plaintiff’s car. The defendant tire shop conceded its liability:

An owner and operator of a vehicle has a duty to inspect his or her vehicle and to discover and rectify any equipment defects … . Moreover, a vehicle operator has a duty to act reasonably to ensure the safe operation and safe stop of her vehicle once it becomes apparent that her vehicle is experiencing a potentially injurious mechanical problem …  Here, we conclude that Wagner failed to carry her burden on the cross motion of demonstrating that she was not negligent as a matter of law in the operation of her vehicle and that there was nothing that she could have done, in the exercise of due care, to avoid the accident … . Wagner testified at her deposition that, despite perceiving that “something was wrong with her car,” she continued to operate her vehicle for a period of time without pulling it over fully onto the shoulder of the highway and bringing it to a stop. We note that the “existence of an emergency and the reasonableness of a driver’s response thereto generally constitute issues of fact” … . Michael v Wagner, 2017 NY Slip Op 04578, 4th Dept 6-9-17

NEGLIGENCE (TRAFFIC ACCIDENTS, EMERGENCY DOCTRINE, DUE TO NEGLIGENCE BY A TIRE SHOP WHICH CONCEDED LIABILITY, A WHEEL FLEW OFF DEFENDANT’S CAR AND STRUCK PLAINTIFF’S CAR, DEFENDANT-DRIVER’S CROSS MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED)/TRAFFIC ACCIDENTS (EMERGENCY DOCTRINE, DUE TO NEGLIGENCE BY A TIRE SHOP WHICH CONCEDED LIABILITY, A WHEEL FLEW OFF DEFENDANT’S CAR AND STRUCK PLAINTIFF’S CAR, DEFENDANT-DRIVER’S CROSS MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED)/EMERGENCY DOCTRINE (TRAFFIC ACCIDENTS, DUE TO NEGLIGENCE BY A TIRE SHOP WHICH CONCEDED LIABILITY, A WHEEL FLEW OFF DEFENDANT’S CAR AND STRUCK PLAINTIFF’S CAR, DEFENDANT-DRIVER’S CROSS MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED)

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VILLAGE CODE DID NOT EXPLICITLY IMPOSE TORT LIABILITY FOR SIDEWALK SLIP AND FALLS ON THE ABUTTING PROPERTY OWNERS, ABUTTING PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The Fourth Department, reversing (modifying) Supreme Court, determined the abutting property owner (Bank of America) was not liable for this public sidewalk slip and fall. The village code placed responsibility for sidewalk maintenance on the abutting property owner, but did not explicitly impose tort liability on an abutting property owner:

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“Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner”… . “That rule does not apply, however, if there is an ordinance or municipal charter that specifically imposes a duty on the abutting landowner to maintain and repair the public sidewalk and provides that a breach of that duty will result in liability for injuries to the users of the sidewalk; the sidewalk was constructed in a special manner for the use of the abutting landowner; the abutting landowner affirmatively created the defect; or the abutting landowner negligently constructed or repaired the sidewalk” … .

We conclude that Bank of America and Jones Lang [the property manager] met their prima facie burden of establishing their entitlement to judgment as a matter of law … . Although the Code of the Village of Williamsville (Code) imposes a duty on landowners to keep public sidewalks “in good order and repair” (Code § 89-3), it is undisputed that the Code does not “clearly subject landowners to . . . liability” for failing to comply with that duty … . It is also undisputed that the public sidewalk was not constructed in a special manner for the property owner’s benefit, and that neither Bank of America nor Jones Lang [the property manager] negligently constructed or repaired the sidewalk or otherwise created the defect. Clauss v Bank of Am., N.A., 2017 NY Slip Op 04606, 4th Dept 6-9-17

 

MUNICIPAL LAW (NEGLIGENCE, SIDEWALK SLIP AND FALLS, ABUTTING PROPERTY OWNER, VILLAGE CODE DID NOT EXPLICITLY IMPOSE TORT LIABILITY FOR SIDEWALK SLIP AND FALLS ON THE ABUTTING PROPERTY OWNERS, ABUTTING PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/NEGLIGENCE (MUNICIPAL LAW, SIDEWALK SLIP AND FALLS, ABUTTING PROPERTY OWNER, VILLAGE CODE DID NOT EXPLICITLY IMPOSE TORT LIABILITY FOR SIDEWALK SLIP AND FALLS ON THE ABUTTING PROPERTY OWNERS, ABUTTING PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/SLIP AND FALL (SIDEWALK SLIP AND FALLS, ABUTTING PROPERTY OWNER, VILLAGE CODE DID NOT EXPLICITLY IMPOSE TORT LIABILITY FOR SIDEWALK SLIP AND FALLS ON THE ABUTTING PROPERTY OWNERS, ABUTTING PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)/SIDEWALKS (SLIP AND FALL, ABUTTING PROPERTY OWNER, VILLAGE CODE DID NOT EXPLICITLY IMPOSE TORT LIABILITY FOR SIDEWALK SLIP AND FALLS ON THE ABUTTING PROPERTY OWNERS, ABUTTING PROPERTY OWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED)

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ALTHOUGH THE TOWN HIRED PLAINTIFF TO REPAIR A VACANT HOUSE, THE TOWN WAS NOT AN OWNER OR GENERAL CONTRACTOR WITHIN THE MEANING OF THE LABOR LAW, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED FOR THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION STEMMING FROM PLAINTIFF’S FALL FROM A LADDER.

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff town’s motion for summary judgment on the Labor Law 240 (1) and 241 (6) causes of action should have been granted. Plaintiff was hired by the town to repair a vacant house. He fell from a ladder. The Fourth Department determined the town was not an “owner” or “general contractor” within the meaning of the Labor Law statutes:

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We agree with the Town that it established as a matter of law that it is not liable for plaintiff’s injuries under Labor Law §§ 240 (1) and 241 (6) inasmuch as it was not an owner of the property or a general contractor on the project. For the purposes of the Labor Law, the term “owner” encompasses the titleholder of the property where the accident occurred, as well as “a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit”… . Here, the Town did not hold title to the property, nor did it have any interest in the property… . Furthermore, even assuming, arguendo, that the Town was an owner of the property, we conclude that the Town would be entitled to the homeowner exemption under the Labor Law … .

We further conclude that the Town established as a matter of law that it was not a general contractor on the project … . The Town submitted evidence establishing that no Town employees were on the job site, plaintiff’s employer, and not the Town, directed plaintiff to the job site, and the Town did not have the authority to direct plaintiff with respect to the method and manner in which he would perform the work. Thus, the Town established that it was not a general contractor inasmuch as it was not “responsible for coordinating and supervising the project” … , and plaintiff failed to raise a question of fact.  Berner v Town of Cheektowaga, 2017 NY Slip Op 04610, 4th Dept 6-9-17

 

MUNICIPAL LAW (LABOR LAW-CONSTRUCTION LAW, ALTHOUGH THE TOWN HIRED PLAINTIFF TO REPAIR A VACANT HOUSE, THE TOWN WAS NOT AN OWNER OR GENERAL CONTRACTOR WITHIN THE MEANING OF THE LABOR LAW, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED FOR THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION STEMMING FROM PLAINTIFF’S FALL FROM A LADDER)/LABOR LAW-CONSTRUCTION LAW (MUNICIPAL LAW,  ALTHOUGH THE TOWN HIRED PLAINTIFF TO REPAIR A VACANT HOUSE, THE TOWN WAS NOT AN OWNER OR GENERAL CONTRACTOR WITHIN THE MEANING OF THE LABOR LAW, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED FOR THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION STEMMING FROM PLAINTIFF’S FALL FROM A LADDER)

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED, EXTENSIVE DISSENT ARGUES NEWLY DISCOVERED THIRD-PARTY ADMISSIONS REQUIRE A NEW TRIAL.

The Fourth Department, over an extensive, comprehensive dissent, determined defendant’s motion to vacate his conviction was properly denied. The defendant was convicted of kidnapping a woman (Heidi) who has never been seen since. The dissent argued newly discovered evidence, third-party admissions, required a new trial. The decision is fact-based and cannot be fairly summarized here:

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FROM THE DISSENT (JUSTICE CENTRA):

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I respectfully dissent. I agree with the majority that County Court properly rejected that part of defendant’s motion alleging a Brady violation inasmuch as defendant did not meet his burden of establishing that the alleged Brady material was suppressed by the People. I further agree with the majority that the court properly precluded defendant from introducing certain evidence that did not involve third-party admissions. I also agree with the majority that defendant failed to establish his entitlement to relief through an actual innocence claim … . I agree with defendant, however, that he established his entitlement to a new trial based on newly discovered evidence. I would therefore reverse the order, grant the motion, vacate the judgment of conviction, and grant a new trial. * * *

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“When considering the reliability of a declaration, courts should . . . consider the circumstances of the statement, such as, among other things, the declarant’s motive in making the statement—i.e., whether the declarant exculpated a loved one or inculpated someone else, the declarant’s personality and mental state, and the internal consistency and coherence of the declaration’ ” … . Here, Steen, Breckenridge, and Wescott were not related to defendant and were not his friends, and thus had no reason to exonerate him or implicate themselves or their friends in Heidi’s disappearance. Wescott’s statement to Priest revealed that she did not like discussing what happened to Heidi, and she showed fear and reluctance to speak to the police about it. The third-party admissions were made to people they knew, not strangers, and were made to provide explanations, rather than mere theories, to the listener as to what actually happened to Heidi. The majority notes that many of the third-party admissions were inconsistent with each other. At first blush, that seems to be the case inasmuch as the statements were that Heidi’s body was cut up and buried in a cabin, or burned in a wood stove in the cabin, or placed in a van that was sent to Canada to be salvaged. It is certainly possible, however, that all three of those events could have occurred.

I therefore conclude that the testimony of Priest, Braley, and Combes, and the statement of Wescott, would be admissible at defendant’s trial, and that evidence would probably change the result of the trial … . People v Thibodeau, 2017 NY Slip Op 04577, 4th Dept 6-9-17

 

CRIMINAL LAW (VACATE CONVICTION, MOTION TO, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED, EXTENSIVE DISSENT ARGUES NEWLY DISCOVERED EVIDENCE REQUIRES A NEW TRIAL)/EVIDENCE (CRIMINAL LAW, NEWLY DISCOVERED EVIDENCE, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED, EXTENSIVE DISSENT ARGUES NEWLY DISCOVERED EVIDENCE REQUIRES A NEW TRIAL)/VACATE CONVICTION, MOTION TO (DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED, EXTENSIVE DISSENT ARGUES NEWLY DISCOVERED EVIDENCE REQUIRES A NEW TRIAL)/ADMISSIONS (CRIMINAL LAW, THIRD PARTY ADMISSIONS, DEFENDANT’S MOTION TO VACATE HIS CONVICTION PROPERLY DENIED, EXTENSIVE DISSENT ARGUES NEWLY DISCOVERED THIRD-PARTY ADMISSIONS, REQUIRE A NEW TRIAL)

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INSURER HAD A DUTY TO DEFEND LAWSUIT BY RESIDENTS WHICH ALLEGED THE INSURED CONTAMINATED THE AREA WITH HAZARDOUS MATERIALS, ALTHOUGH THERE WAS AN EXCLUSION FOR DAMAGES CAUSED BY HAZARDOUS MATERIALS, THE ALLEGATION OF A MALODOROUS CONDITION WAS DEEMED NOT NECESSARILY RELATED TO HAZARDOUS MATERIALS.

The Fourth Department determined defendant insurance company had a duty to defend in this toxic tort case brought by residents in the vicinity of plaintiff business (Hillcrest) which allegedly contaminated the area with hazardous materials. Although the policy excluded coverage for damages caused by hazardous material, the complaint also alleged Hillcrest caused a “malodorous condition” which, the court reasoned, was not necessarily related to hazardous materials:

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It is well settled that an insurance company’s duty to defend is ” exceedingly broad,’ ” and is broader than the duty to indemnify … . The duty to defend arises whenever allegations of an underlying complaint suggest ” a reasonable possibility of coverage,’ ” even if facts outside the pleadings ” indicate that the claim may be meritless or not covered’ ” … . “[U]pon a motion such as this[,] the court’s duty is to compare the allegations of the complaint to the terms of the policy to determine whether a duty to defend exists” … .

Moreover, “exclusions are subject to strict construction and must be read narrowly” … . “In order to establish that an exclusion defeats coverage, the insurer has the heavy burden’ of establishing that the exclusion is expressed in clear and unmistakable language, is subject to no other reasonable interpretation, and is applicable to the facts” … .

Here, liberally construing the allegations set forth in the second amended complaint in the underlying action … , we conclude that there is a reasonable possibility of coverage, and that defendant therefore did not meet its heavy burden of establishing as a matter of law that the hazardous materials exclusion precludes coverage. The tort plaintiffs alleged in the second amended complaint that the Hillcrest plaintiffs’ operation of the facility “caused a malodorous condition to be created in the surrounding neighborhood.” Although many of the factual assertions in the second amended complaint allege that the odor resulted from hazardous materials, those are not the only factual allegations therein. Indeed, foul odors are not always caused by the discharge of hazardous materials. Inasmuch as there is a reasonable possibility of coverage, the court properly declared that defendant is obligated to defend the Hillcrest plaintiffs in the underlying tort action and ordered defendant to reimburse them for the cost of the defense. Hillcrest Coatings, Inc. v Colony Ins. Co., 2017 NY Slip Op 04613, 4th Dept 6-9-17

 

INSURANCE LAW (TOXIC TORTS, DUTY TO DEFEND, INSURER HAD A DUTY TO DEFEND LAWSUIT BY RESIDENTS WHICH ALLEGED THE INSURED CONTAMINATED THE AREA WITH HAZARDOUS MATERIALS, ALTHOUGH THERE WAS AN EXCLUSION FOR DAMAGES CAUSED BY HAZARDOUS MATERIALS, THE ALLEGATION OF A MALODOROUS CONDITION WAS DEEMED NOT NECESSARILY RELATED TO HAZARDOUS MATERIALS)/TOXIC TORTS (INSURANCE LAW, DUTY TO DEFEND, INSURER HAD A DUTY TO DEFEND LAWSUIT BY RESIDENTS WHICH ALLEGED THE INSURED CONTAMINATED THE AREA WITH HAZARDOUS MATERIALS, ALTHOUGH THERE WAS AN EXCLUSION FOR DAMAGES CAUSED BY HAZARDOUS MATERIALS, THE ALLEGATION OF A MALODOROUS CONDITION WAS DEEMED NOT NECESSARILY RELATED TO HAZARDOUS MATERIALS)/DUTY TO DEFEND (INSURANCE LAW, TOXIC TORTS, INSURER HAD A DUTY TO DEFEND LAWSUIT BY RESIDENTS WHICH ALLEGED THE INSURED CONTAMINATED THE AREA WITH HAZARDOUS MATERIALS, ALTHOUGH THERE WAS AN EXCLUSION FOR DAMAGES CAUSED BY HAZARDOUS MATERIALS, THE ALLEGATION OF A MALODOROUS CONDITION WAS DEEMED NOT NECESSARILY RELATED TO HAZARDOUS MATERIALS)

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GRAND JURY MINUTES SHOULD NOT BE RELEASED IN THIS CIVIL RIGHTS ACTION STEMMING FROM A FATAL SHOOTING BY A POLICE OFFICER.

The Fourth Department, reversing Supreme Court, determined the grand jury minutes surrounding a fatal shooting by a police officer should not be released. Decedent’s wife sought the grand jury minutes in a federal civil rights action:

We agree with the County that plaintiff failed to “demonstrat[e] a compelling and particularized need for access’ ” to the grand jury materials… . Such a showing must be made in order to overcome the “presumption of confidentiality [that] attaches to the record of [g]rand [j]ury proceedings” … , and is a prerequisite to the court’s exercise of its discretion in “balanc[ing] the public interest for disclosure against the public interest favoring secrecy” … . Here, plaintiff failed to establish that the discovery proceedings in federal court would not be sufficient to ascertain the facts and circumstances surrounding the shooting … . Williams v City of Rochester, 2017 NY Slip Op 04646, 4th Dept 6-9-17

FREEDOM OF INFORMATION LAW (FOIL) (GRAND JURY MINUTES SHOULD NOT BE RELEASED IN THIS CIVIL RIGHTS ACTION STEMMING FROM A FATAL SHOOTING BY A POLICE OFFICER)/GRAND JURY MINUTES (FREEDOM OF INFORMATION LAW, GRAND JURY MINUTES SHOULD NOT BE RELEASED IN THIS CIVIL RIGHTS ACTION STEMMING FROM A FATAL SHOOTING BY A POLICE OFFICER)

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