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PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM TO THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED.

The Third Department, reversing Supreme Court, determined plaintiff’s motion to conform the pleadings to the proof should have been granted in this medical malpractice action. Defendants submitted proof on the relevant issues (the treatment of plaintiff by defendant Slavin on January 26, 2009) and did not demonstrate amending the pleadings would result in any prejudice to them:

As the parties opposing such amendment, defendants had the burden of establishing that they had been prejudiced, that is that they “ha[d] been hindered in the preparation of [their] case or ha[d] been prevented from taking some measure in support of [their] position” … . That burden cannot be met when the difference between the original pleading and the evidence results from “‘proof admitted at the instance or with the acquiescence of [the opposing] party'”… . * * *

… [A]s defendants acquiesced to the introduction of the evidence of Slavin’s negligence on January 26, 2009, they could not meet their burden when they later opposed plaintiff’s cross motion to conform the pleadings to the proof adduced at trial … . Even if this were not the case, defendants failed to meet their burden of establishing prejudice. Defendants’ contentions that they had been unprepared for cross-examination of plaintiff’s expert was conclusory, as defendants failed to offer a single example as to the manner in which the introduction of evidence that Slavin was negligent on January 26, 2009 hindered their cross-examination. Morever, defendants’ claims that they were prejudiced by the introduction of the January 26, 2009 negligence were unsupported by specific examples or proof in the record. More generally, the record establishes that plaintiffs had plainly notified defendants by their bills of particulars that plaintiff had been treated by Slavin on January 26, 2009 and that Slavin’s negligence included his failure to recognize, from imaging studies, the need to perform a closed reduction on plaintiff’s injured leg. Noble v Slavin, 2017 NY Slip Op 03578, 3rd Dept 5-4-17

CIVIL PROCEDURE (AMEND PLEADINGS TO CONFORM TO THE PROOF, PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/PLEADINGS, MOTION TO CONFORM TO PROOF (PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/PLEADINGS, AMENDMENT OF (PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/NEGLIGENCE (MEDICAL MALPRACTICE, CIVIL PROCEDURE, PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (CIVIL PROCEDURE, PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)

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ALLEGATION THE DEFENDANT-ATTORNEYS FAILED TO REFRESH THE EYEWITNESS’S RECOLLECTION LEADING TO ERRONEOUS TESTIMONY STATED A CAUSE OF ACTON FOR LEGAL MALPRACTICE.

The First Department, reversing Supreme Court, determined plaintiff had alleged a valid cause of action for legal malpractice. Plaintiff alleged defendants’ failure to refresh the eyewitness’s recollection of the appearance of the truck which fled the hit-and-run accident scene led to erroneous testimony by the witness and the loss of the case:

In this legal malpractice action, plaintiff, the victim of a hit-and-run accident, alleges that defendants, who represented him in the underlying personal injury action, were negligent in failing to prepare and present the testimony of the sole eyewitness; that defendants’ negligence caused a verdict against him; and that he sustained actual damages. Specifically, plaintiff alleges that, prior to the eyewitness’s deposition testimony two years after the accident, defendants failed to refresh the eyewitness’s memory by showing him the police record of a phone call he made shortly after the accident, in which he described the hit-and-run vehicle as a green garbage truck with a flat front. The eyewitness then testified to the contrary at his deposition, stating that the garbage truck he remembered fleeing the scene had a round front, not a flat front. Plaintiff alleges that but for defendants’ negligence in handling the key witness in his case, he would have prevailed, as the driver operated a green garbage truck with a flat front, and the driver had already admitted to a route that would have placed him at the scene on the day and time of the accident. These allegations are sufficient to survive a CPLR 3211(a)(1) and (7) motion to dismiss, as nothing in the record conclusively establishes a defense as a matter of law  … . Caso v Miranda Sambursky Sloane Sklarin Ver Veniotis LLP, 2017 NY Slip Op 03607, 1st Dept 5-4-17

ATTORNEYS (LEGAL MALPRACTICE, ALLEGATION THE DEFENDANT-ATTORNEYS FAILED TO REFRESH THE EYEWITNESS’S RECOLLECTION LEADING TO ERRONEOUS TESTIMONY STATED A CAUSE OF ACTON FOR LEGAL MALPRACTICE)/NEGLIGENCE (LEGAL MALPRACTICE, ALLEGATION THE DEFENDANT-ATTORNEYS FAILED TO REFRESH THE EYEWITNESS’S RECOLLECTION LEADING TO ERRONEOUS TESTIMONY STATED A CAUSE OF ACTON FOR LEGAL MALPRACTICE)/LEGAL MALPRACTICE (ALLEGATION THE DEFENDANT-ATTORNEYS FAILED TO REFRESH THE EYEWITNESS’S RECOLLECTION LEADING TO ERRONEOUS TESTIMONY STATED A CAUSE OF ACTON FOR LEGAL MALPRACTICE)

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RULE THAT RETIRED JUDGES WHO RETURN TO THE BENCH CANNOT RECEIVE BOTH A SALARY AND RETIREMENT BENEFITS IS NEITHER ILLEGAL NOR UNCONSTITUTIONAL.

The Court of Appeals, reversing the Appellate Division, determined the rule that retired judges who return to the bench cannot receive both a salary and retirement benefits was neither illegal nor unconstitutional. Matter of Loehr v Administrative Bd. of the Cts. of the State of New York, 2017 NY Slip Op 03558, CtApp 5-4-17

 

JUDGES (RULE THAT RETIRED JUDGES WHO RETURN TO THE BENCH CANNOT RECEIVE BOTH A SALARY AND RETIREMENT BENEFITS IS NEITHER ILLEGAL NOR UNCONSTITUTIONAL)

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HUMAN RIGHTS LAW PROHIBITION OF EMPLOYMENT DISCRIMINATION BASED UPON A CRIMINAL CONVICTION EXTENDS TO AIDING AND ABETTING DISCRIMINATION BY AN OUT-OF-STATE NON-EMPLOYER.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over an extensive dissenting opinion, answered three certified questions from the Second Circuit. Plaintiffs were movers employed by Astro which contracted with Allied (located out of state) . Most of Astro’s work came from Allied. Plaintiffs had been convicted of sex offenses involving young children. After a criminal record screening ordered by Allied, plaintiffs were fired. Plaintiffs then sued Allied under Human Rights Law 296 alleging discrimination based upon their criminal convictions.  The Court of Appeals held: (1) Human Rights Law 296 applies only to discrimination by employers; (2) employers are those who directly control the work of employees; and (3) the provision of Human Rights Law 296 which prohibits aiding and abetting discrimination applies to out-of-state non-employers:

… [W]e need look no further than our own lower courts to determine who is an employer under the Human Rights Law. … In State Div. of Human Rights v GTE Corp., the Appellate Division identified four relevant factors: “‘(1) the selection and engagement of the servant; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control of the servant’s conduct'” … . … [The]”‘… really essential element of the relationship is the right of control, that is, the right of one person, the master, to order and control another, the servant, in the performance of work by the latter'”  … . * * *

Section 296 (6) [prohibiting aiding and abetting discrimination] applies to any “person.” … [N]othing in the statutory language or legislative history limits the reach of this provision to employers. Indeed, the purpose of subdivision (6) was “to bring within the orbit of the bill all persons, no matter what their status, who aid or abet any of the forbidden practices of discrimination or who attempt to do so,” as well as “to furnish protection to all persons, whether employers, labor organizations or employment agencies, who find themselves subjected from any source to compulsion or coercion to adopt any forbidden employment practices” … . Griffin v Sirva, Inc., 2017 NY Slip Op 03557, CtApp 5-4-17

EMPLOYMENT LAW (DISCRIMINATION, HUMAN RIGHTS LAW, PROHIBITION OF EMPLOYMENT DISCRIMINATION BASED UPON A CRIMINAL CONVICTION EXTENDS TO AIDING AND ABETTING DISCRIMINATION BY AN OUT-OF-STATE NON-EMPLOYER)/HUMAN RIGHTS LAW (EMPLOYMENT DISCRIMINATION, PROHIBITION OF EMPLOYMENT DISCRIMINATION BASED UPON A CRIMINAL CONVICTION EXTENDS TO AIDING AND ABETTING DISCRIMINATION BY AN OUT-OF-STATE NON-EMPLOYER)/CRIMINAL LAW (EMPLOYMENT LAW, HUMAN RIGHTS LAW, PROHIBITION OF EMPLOYMENT DISCRIMINATION BASED UPON A CRIMINAL CONVICTION EXTENDS TO AIDING AND ABETTING DISCRIMINATION BY AN OUT-OF-STATE NON-EMPLOYER)

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RUNNING A DMV DATABASE SEARCH FOR A VEHICLE’S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined that a police officer’s observation of a license plate and running the registration number through the Department of Motor Vehicles’ (DMV’s) database is not a search. Here the officer did not observe any violation that warranted stopping defendant’s car. When the officer ran the plate number he learned defendant’s registration had been suspended due to unpaid parking tickets. The stop was for that reason alone. The officer ultimately arrested the defendant for Driving While Intoxicated:

As defendant concedes, a driver does not have any reasonable expectation of privacy in the license plate number itself, nor would any expectation in such publicly exposed information be recognized as reasonable by society. We now conclude that a driver has no expectation of privacy in the DMV database information associated with a license plate number. Our Vehicle and Traffic Law provides a comprehensive set of requirements for lawfully operating a vehicle in the State of New York.  * * *

While “a police officer may [not] stop an automobile, arbitrarily chosen from the stream of traffic on a public highway only because of the unusual but irrelevant appearance of the vehicle, solely to examine the motorist’s license and registration” … , defendant’s freedom of movement was never “stopped” until after the officer ran his license plate and obtained probable cause to believe the vehicle was being operated with a suspended registration. We prohibit arbitrary traffic stops because they constitute unreasonable “seizures” of persons in violation of the constitution … . But here, the stop of defendant’s car occurred only after the check had supplied the officer a reason to do so. And while we are mindful of the concerns about license plate checks, “the possibilities of database error and police officer abuse, while real, do not create a legitimate expectation of privacy where none existed before. Government actions do not become Fourth Amendment searches simply because they might be carried out improperly. If an officer does go outside the proper bounds of a license plate search, it is that misconduct that might give rise to a constitutional or statutory violation” … .  People v Bushey, 2017 NY Slip Op 03560, CtApp 5-4-17

 

CRIMINAL LAW (RUNNING A DMV DATABASE SEARCH FOR A VEHICLE’S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE)/EVIDENCE (CRIMINAL LAW, RUNNING A DMV DATABASE SEARCH FOR A VEHICLE’S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE)/SEARCH AND SEIZURE RUNNING A DMV DATABASE SEARCH FOR A VEHICLE’S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE)/SUPPRESSION (RUNNING A DMV DATABASE SEARCH FOR A VEHICLE’S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE)/STREET STOPS (RUNNING A DMV DATABASE SEARCH FOR A VEHICLE’S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE)/REGISTRATION NUMBER (VEHICLES, CRIMINAL LAW, RUNNING A DMV DATABASE SEARCH FOR A VEHICLE’S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE)/DEPARTMENT OF MOTOR VEHICLES (DATABASE CHECK OF VEHICLE REGISTRATION NUMBER, RUNNING A DMV DATABASE SEARCH FOR A VEHICLE’S PLATE NUMBER IS NOT A SEARCH, THEREFORE THE DMV CHECK CAN BE RUN WITHOUT ANY ARTICULABLE REASON FOR STOPPING A VEHICLE)

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ALTHOUGH HEARSAY VIOLATED DEFENDANT’S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that, although testimony by a detective about a phone conversation with defendant’s wife (who had since recanted and avoided testifying) violated defendant’s right to confront witnesses, the diluted strength of the phone-call evidence coupled with the striking of the detective’s testimony preserved the fairness of the trial. Defendant’s wife was a witness to the stabbing of the victim. The victim knew the defendant and identified him as the attacker. Defendant’s wife first told the police defendant was the attacker but later recanted and she could not be found at the time of trial. The detective’s testimony did not identify the wife as the person he talked to on the phone but the jury could have inferred it was she and that she identified the defendant as the attacker. However, since the detective had also talked to the victim, the jury could also have inferred it was the victim’s statement that led the detective to the defendant:

Here, the detective did not expressly state that the wife was a witness and that she had identified defendant as the attacker. While the testimony supported an inference to that effect, there was another countervailing inference —— as discussed above, the detective may have identified defendant as a suspect based on information provided by the victim to the police at the hospital and passed on to the detective once he took the case, but before the detective spoke to the wife. This inference also flowed logically from the victim’s testimony that the wife was with the victim when he was attacked by defendant, particularly because the jury heard this testimony immediately before the detective testified. As such, the jury could reasonably infer that the police knew about the wife from the victim and that his statements, relayed to the detective during the briefing from the Night Watch Unit, led the police to treat defendant as a suspect. Given this context, the testimony was neither powerfully incriminating nor, as the defendant argues, did it alone transform the entire case from that in which the People presented a single eyewitness to a case with two eyewitnesses identifying defendant as the perpetrator. People v Stone, 2017 NY Slip Op 03559, CtApp 5-4-17

CRIMINAL LAW (ALTHOUGH HEARSAY VIOLATED DEFENDANT’S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL)/EVIDENCE (CRIMINAL LAW, ALTHOUGH HEARSAY VIOLATED DEFENDANT’S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL)/HEARSAY (CRIMINAL LAW, ALTHOUGH HEARSAY VIOLATED DEFENDANT’S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL)/CONFRONTATION, RIGHT OF (CRIMINAL LAW, ALTHOUGH HEARSAY VIOLATED DEFENDANT’S RIGHT OF CONFRONTATION, THE WEAKNESS OF THE EVIDENCE AND THE STRIKING OF THE TESTIMONY PRESERVED THE FAIRNESS OF THE TRIAL)

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QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing (modifying) Supreme Court, determined there was a question of fact whether the statute of limitations in this medical malpractice action was tolled by the continuous treatment doctrine:

“Under the continuous treatment doctrine, the 2½ year period does not begin to run until the end of the course of treatment, when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint'” … . The doctrine “applies when further treatment is explicitly anticipated by both physician and patient,” which is generally “manifested in the form of a regularly scheduled appointment for the near future, agreed upon during that last visit, . . . for the purpose of administering ongoing corrective efforts for the same or a related condition” …  Further “[i]ncluded within the scope of continuous treatment’ is a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment” ,,, ,

In the present case, [defendant doctor] testified at his deposition that when he discussed treatment options with the plaintiff, he advised the plaintiff that a new treatment process was available outside the United States and that he was cautiously optimistic that, at some time in the foreseeable future, he could offer it to the plaintiff in New York. The plaintiff, who was aware that the treatment process was the subject of a study aimed at obtaining FDA approval, testified at his deposition that he was waiting for the new treatment process to become available. After being told, in November 2008, that his only options were to wait for the new treatment or seek treatment outside the country, the plaintiff returned to the defendants for treatment of the same condition on March 9, 2011, and, in fact, received treatment for the same condition from the defendants continuing until December 2012. Freely v Donnenfeld, 2017 NY Slip Op 03491, 2nd Dept 5-3-17

NEGLIGENCE (MEDICAL MALPRACTICE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (CONTINUOUS TREATMENT DOCTRINE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/CIVIL PROCEDURE (MEDICAL MALPRACTICE, CONTINUOUS TREATMENT DOCTRINE, STATUTE OF LIMITATIONS,  QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/CONTINUOUS TREATMENT DOCTRINE (MEDICAL MALPRACTICE, STATUTE OF LIMITATIONS, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

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ALLEGATION PLAINTIFF STOPPED SUDDENLY NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE.

The Second Department determined defendant driver’s allegation that plaintiff stopped suddenly was not enough to defeat plaintiff’s motion for summary judgment in this rear-end collision case:

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, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence … . To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault … . Here, the plaintiff established her prima facie entitlement to judgment as a matter of law through the submission of her own affidavit, in which she averred that her vehicle was stopped on Northern Boulevard at its intersection with 157th Street, when it was struck in the rear by the defendants’ vehicle. This affidavit demonstrated, prima facie, that Veliz was negligent and that she was not comparatively at fault in the happening of the subject accident.

In opposition, the defendants failed to raise a triable issue of fact. The evidence submitted by the defendants that the plaintiff stopped her vehicle suddenly was insufficient to raise a triable issue of fact as to whether the plaintiff’s actions contributed to the happening of the accident, and it did not provide the defendants with a nonnegligent explanation for the rear-end collision … . Nikolic v City-Wide Sewer & Drain Serv. Corp., 2017 NY Slip Op 03524, 2nd Dept 5-3-17

NEGLIGENCE (ALLEGATION PLAINTIFF STOPPED SUDDENLY NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE)/TRAFFIC ACCIDENTS (ALLEGATION PLAINTIFF STOPPED SUDDENLY NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE)/REAR-END COLLISIONS (ALLEGATION PLAINTIFF STOPPED SUDDENLY NOT ENOUGH TO DEFEAT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE)

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ELECTRICIAN SLIPPED AND FELL ON ICE IN DRIVEWAY OF DEFENDANTS’ HOME, DEFENDANTS, WHO WERE OUT-OF-STATE, DID NOT DEMONSTRATE WHEN THE DRIVEWAY WAS LAST INSPECTED OR WHAT THE CONDITION OF THE DRIVEWAY WAS ON THE DAY OF THE SLIP AND FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 200 CAUSE OF ACTION PROPERLY DENIED.

The Second Department determined the homeowners, who were living out-of-state while their home was being renovated, did not meet their burden of proof for summary judgment in this slip and fall case brought under Labor Law 200. Plaintiff, an electrician, alleged he slipped and fell on ice in the defendants’ driveway. The defendants didn’t demonstrate when the driveway was last inspected or what the condition of the driveway was when plaintiff fell, so the motion was denied without reference to plaintiff’s responding papers:

The Supreme Court properly determined that the homeowners had a duty to keep their property in a reasonably safe condition and provide workers with a safe place to work, even though they were residing out of state at the time of the accident … . In addition, contrary to the homeowners’ contention, the plaintiff’s alleged injuries stem from a dangerous condition on the premises … , and not from the manner in which work was performed … . Further, the court properly concluded that the homeowners failed to establish, prima facie, that they lacked constructive notice of the alleged icy condition in the driveway … . The evidence submitted in support of the homeowners’ motion, which included transcripts of the plaintiff’s and their own deposition testimony, failed to establish when they or the company they contracted with to provide snow removal on the driveway last inspected the driveway, or what the driveway looked like on the day of the accident … . DeFelice v Seakco Constr. Co., LLC, 2017 NY Slip Op 03481, 2nd Dept 5-3-17

LABOR LAW-CONSTRUCTION LAW (ELECTRICIAN SLIPPED AND FELL ON ICE IN DRIVEWAY OF DEFENDANTS’ HOME, DEFENDANTS, WHO WERE OUT-OF-STATE, DID NOT DEMONSTRATE WHEN THE DRIVEWAY WAS LAST INSPECTED OR WHAT THE CONDITION OF THE DRIVEWAY WAS ON THE DAY OF THE SLIP AND FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 200 CAUSE OF ACTION PROPERLY DENIED)/NEGLIGENCE (LABOR LAW 200, ELECTRICIAN SLIPPED AND FELL ON ICE IN DRIVEWAY OF DEFENDANTS’ HOME, DEFENDANTS, WHO WERE OUT-OF-STATE, DID NOT DEMONSTRATE WHEN THE DRIVEWAY WAS LAST INSPECTED OR WHAT THE CONDITION OF THE DRIVEWAY WAS ON THE DAY OF THE SLIP AND FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 200 CAUSE OF ACTION PROPERLY DENIED)/SLIP AND FALL (LABOR LAW 200, ELECTRICIAN SLIPPED AND FELL ON ICE IN DRIVEWAY OF DEFENDANTS’ HOME, DEFENDANTS, WHO WERE OUT-OF-STATE, DID NOT DEMONSTRATE WHEN THE DRIVEWAY WAS LAST INSPECTED OR WHAT THE CONDITION OF THE DRIVEWAY WAS ON THE DAY OF THE SLIP AND FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 200 CAUSE OF ACTION PROPERLY DENIED)

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INSURED’S REFUSAL TO COOPERATE WITH INSURER RELIEVED INSURER OF LIABILITY FOR DEFAULT JUDGMENT AGAINST THE INSURED.

The Second Department, reversing Supreme Court’s judgment after a bench trial, determined defendant insurer demonstrated the insured refused to cooperate with the insurer’s defense in this oil-spill case, relieving the insurer of liability for the default judgment against the insured:

An insurer that seeks to disclaim coverage based on its insured’s alleged noncooperation is required to demonstrate that “it acted diligently in seeking to bring about its insured’s cooperation, that its efforts were reasonably calculated to obtain its insured’s cooperation, and that the attitude of its insured, after the cooperation of its insured was sought, was one of willful and avowed obstruction'” … . The insurer has a “heavy” burden of proving lack of cooperation … . The inference of noncooperation must be “practically compelling” … .

Based on the evidence adduced at trial, we find that American States met its heavy burden of proving that its insured breached the subject policy by failing to cooperate in the defense of the underlying action. American States made diligent efforts, through written correspondence, numerous telephone calls, and a visit to the insured’s home, that were reasonably calculated to bring about the insured’s cooperation. Further, its insured’s attitude, after his cooperation was sought, was one of willful and avowed obstruction. Among other trial evidence, there was testimony from an investigator who met with the insured at the insured’s home. The investigator testified that the investigator told the insured that the insured risked losing coverage under the policy if the insured refused to cooperate. The insured, while acknowledging that he knew that he had attorneys defending him and that a default judgment could be entered against him if he failed to appear at a deposition, made statements to the effect that he would cooperate only if he were paid for certain work he claimed to have performed, and that the plaintiff could “just get in line” were it to obtain a judgment against him. West St. Props., LLC v American States Ins. Co., 2017 NY Slip Op 03555, 2nd Dept 5-3-17

 

INSURANCE LAW (INSURED’S REFUSAL TO COOPERATE WITH INSURER RELIEVED INSURER OF LIABILITY FOR DEFAULT JUDGMENT AGAINST THE INSURED)/DISCLAIMER (INSURANCE LAW, REFUSAL TO COOPERATE IN DEFENSE, INSURED’S REFUSAL TO COOPERATE WITH INSURER RELIEVED INSURER OF LIABILITY FOR DEFAULT JUDGMENT AGAINST THE INSURED)

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