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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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INJURED PARTY DID NOT TIMELY NOTIFY INSURER OF HIS CLAIM, INSURER NOT OBLIGATED TO SATISFY DEFAULT JUDGMENT AGAINST THE INSURED.

The Second Department determined the injured party (Glanz) did not timely notify the insurer (New York Marine) of the claim against the insured. Therefore, the insurer was not obligated to satisfy the default judgment entered against the insured:

“Insurance Law § 3420(a)(2) expressly permits an injured party to recover any unsatisfied judgment against an insured, directly from the insurer” … . Insurance Law § 3420(a)(3) requires the injured party to demonstrate that he or she acted diligently in attempting to ascertain the identity of the insurer, and thereafter expeditiously notified the insurer … . “In determining the reasonableness of an injured party’s notice, the notice required is measured less rigidly than that required of the insureds” … . “The injured person’s rights must be judged by the prospects for giving notice that were afforded him [or her], not by those available to the insured” …  “What is reasonably possible for the insured may not be reasonably possible for the person he [or she] has injured. The passage of time does not of itself make delay unreasonable” … .

Here, New York Marine made a prima facie showing that Glanz failed to act diligently in attempting to ascertain New York Marine’s identity and in expeditiously notifying it of his claim … . In opposition, Glanz failed to raise a triable issue of fact … . Glanz v New York Mar. & Gen. Ins. Co., 2017 NY Slip Op 03494, 2nd Dept 5-3-17

 

INSURANCE LAW (INJURED PARTY DID NOT TIMELY NOTIFY INSURER OF HIS CLAIM, INSURER NOT OBLIGATED TO SATISFY DEFAULT JUDGMENT AGAINST THE INSURED)

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LATE NOTIFICATION OF THE INSURER BY THE INSURED ABOUT AN ACTION AGAINST THE INSURED DOES NOT EXCUSE A LATE DISCLAIMER, TIMELINESS OF A DISCLAIMER DEPENDS ON WHEN THE INSURER FIRST LEARNED OF THE ACTION.

The Second Department noted that an insured’s failure to timely notify the insurer of an action does not relieve the insurer of the obligation to timely disclaim. Whether a disclaimer is timely is determined by when the insurer first learned of the action, not when the insured notified it of the action:

… [The] “failure of an insured to timely notify the insurer of a claim does not excuse the insurer’s failure to timely disclaim coverage” … . “The timeliness of an insurer’s disclaimer is measured from the point in time when the insurer first learns of the grounds for disclaimer of liability or denial of coverage” … . In opposition to the cross motion, [the insured] raised triable issues of fact as to whether the plaintiff acquired knowledge of the commencement of the underlying action in April 2012, or, at the latest, October 2012, and thus, whether it timely disclaimed coverage in March 2013, on the basis of, inter alia, late receipt of a copy of the summons and complaint. Evanston Ins. Co. v P.S. Bruckel, Inc., 2017 NY Slip Op 03489, 2nd Dept 5-3-17

INSURANCE LAW (LATE NOTIFICATION OF THE INSURER BY THE INSURED ABOUT AN ACTION AGAINST THE INSURED DOES NOT EXCUSE A LATE DISCLAIMER, TIMELINESS OF A DISCLAIMER DEPENDS ON WHEN THE INSURER FIRST LEARNED OF THE ACTION)/DISCLAIMER (INSURANCE LAW, LATE NOTIFICATION OF THE INSURER BY THE INSURED ABOUT AN ACTION AGAINST THE INSURED DOES NOT EXCUSE A LATE DISCLAIMER, TIMELINESS OF A DISCLAIMER DEPENDS ON WHEN THE INSURER FIRST LEARNED OF THE ACTION)

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BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET.

The Second Department determined plaintiff bank failed to demonstrate standing to bring the foreclosure action because the criteria for the business records exception to the hearsay rule were not met:

Here, the plaintiff attempted to establish its standing by submitting the affidavit of Kelly Thompson, an Assistant V.P., Operations Team Manager, at Bank of America, N.A. (hereinafter BANA), the servicer of the defendant Juliet Willis’s loan on behalf of the plaintiff. Thompson averred, in relevant part, that her affidavit was based upon her review of BANA’s business records, and that upon review of such records, the note was physically transferred to the plaintiff “in or about March 2007.” The plaintiff failed to demonstrate that the records relied upon by Thompson were admissible under the business records exception to the hearsay rule (see CPLR 4518[a]) because Thompson, an employee of BANA, did not attest that she was personally familiar [*2]with the plaintiff’s recordkeeping practices and procedures … . Bank of N.Y. v Willis, 2017 NY Slip Op 03468, 2nd Dept 5-3-17

FORECLOSURE (BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET)/EVIDENCE (FORECLOSURE, STANDING, BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET)/HEARSAY (FORECLOSURE, STANDING, (BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET)/BUSINESS RECORDS EXCEPTION TO HEARSAY RULE (FORECLOSURE, STANDING, (BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION, CRITERIA FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET)

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CAUSE OF ACTION FOR MONEY HAD AND RECEIVED SHOULD NOT HAVE BEEN DISMISSED.

The Second Department, reversing (modifying) Supreme Court, determined the cause of action for money had and received should not have been dismissed. Plaintiff alleged he gave the proceeds of an annuity to his sister (defendant) for safe-keeping (in her bank account) until he decided how to dispose of it. The agreement was oral but the cause of action was in the nature of quasi-contract (unjust enrichment) and was therefore not barred by the statute of frauds:

“The essential elements of a cause of action for money had and received are (1) the defendant received money belonging to the plaintiff, (2) the defendant benefitted from receipt of the money, and (3) under principles of equity and good conscience, the defendant should not be permitted to keep the money. The action depends upon equitable principles in the sense that broad considerations of right, justice and morality apply to it” … .

Here, the plaintiff alleged sufficient facts to assert a cause of action for money had and received. The complaint alleges that the defendant received a benefit when she received the proceeds of the plaintiff’s surrendered annuity, with the understanding that the defendant would keep those proceeds safe while the plaintiff determined how he wanted to dispose of the funds … . Contrary to the defendant’s contention, a plaintiff need not allege malice to state a cause of action for money had and received … . Litvinoff v Wright, 2017 NY Slip Op 03501, 2nd Dept 5-3-17

 

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NEW INFORMATION IN REPLY PAPERS PROPERLY CONSIDERED BY THE COURT.

The Second Department, in finding plaintiff bank had established standing to bring the foreclosure action, explained when a court may consider new information in a reply affidavit (re: a motion for summary judgment):

… [I]t was not error for the Supreme Court to consider the reply affidavit, which was submitted in reply to the appellant’s opposition. A party moving for summary judgment generally cannot meet its prima facie burden by submitting evidence for the first time in reply … . However, there are exceptions to this general rule, including when the evidence is submitted in response to allegations raised for the first time in the opposition papers or when the other party is given an opportunity to respond to the reply papers… . Further, “[t]he function of reply papers is to address arguments made in opposition to the position taken by the movant” … .

Here, the Supreme Court properly considered the reply affidavit because the affidavit was offered in response to the appellant’s allegation in opposition to the motion that the plaintiff never had possession of the note, and merely clarified the plaintiff’s initial submissions as to its possession of the note at the time of commencement … . Central Mtge. Co. v Jahnsen, 2017 NY Slip Op 03474, 2nd Dept 5-3-17

CIVIL PROCEDURE (NEW INFORMATION IN REPLY PAPERS PROPERLY CONSIDERED BY THE COURT)/SUMMARY JUDGMENT (NEW INFORMATION IN REPLY PAPERS PROPERLY CONSIDERED BY THE COURT)/REPLY PAPERS (SUMMARY JUDGMENT, FORECLOSURE, NEW INFORMATION IN REPLY PAPERS PROPERLY CONSIDERED BY THE COURT)/FORECLOSURE (SUMMARY JUDGMENT, NEW INFORMATION IN REPLY PAPERS PROPERLY CONSIDERED BY THE COURT)

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CRITERIA FOR DISCLOSURE OF ORIGINAL DOCUMENTS FOR FORENSIC TESTING EXPLAINED, NOT MET HERE.

The Second Department determined plaintiff’s motion to compel disclosure original documents in this medical malpractice action for forensic analysis was properly denied (albeit for the wrong reason). The court explained the deficiencies in the plaintiff’s motion:

As to the motion to produce original records for forensic analysis, the plaintiff failed to establish that the proposed testing was not destructive, and failed to adequately indicate the extent to which the testing would alter or destroy the original records … . Moreover, the plaintiff failed to establish adequate justification for the testing … . Freely v Donnenfeld, 2017 NY Slip Op 03490, 2nd Dept 5-3-17

CIVIL PROCEDURE (CRITERIA FOR DISCLOSURE OF ORIGINAL DOCUMENTS FOR FORENSIC TESTING EXPLAINED, NOT MET HERE)/DISCLOSURE (ORIGINAL DOCUMENTS, CRITERIA FOR DISCLOSURE OF ORIGINAL DOCUMENTS FOR FORENSIC TESTING EXPLAINED, NOT MET HERE)/FORENSIC ANALYSIS OF ORIGINAL DOCUMENTS (CIVIL PROCEDURE, CRITERIA FOR DISCLOSURE OF ORIGINAL DOCUMENTS FOR FORENSIC TESTING EXPLAINED, NOT MET HERE)

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CONTRACT BETWEEN NYU AND A PHARMACEUTICAL COMPANY CONCERNING THE DEVELOPMENT OF A CANCER-INHIBITING DRUG IS AMBIGUOUS, NYU’S COMPLAINT SEEKING ROYALTIES SHOULD NOT HAVE BEEN DISMISSED.

The First Department, in a full-fledged opinion by Justice Andrias, over a two-justice dissenting opinion, reversing Supreme Court, determined the terms of a contract between New York University (NYU) and a pharmaceutical company were ambiguous. Therefore NYU’s complaint seeking royalties for its role in the development of a cancer-inhibiting drug should not have been dismissed. The language of the contract is too technical to fairly summarize here. New York Univ. v Pfizer Inc., 2017 NY Slip Op 03464, 1st Dept. 5-2-17

 

CONTACT LAW (CONTRACT BETWEEN NYU AND A PHARMACEUTICAL COMPANY CONCERNING THE DEVELOPMENT OF A CANCER-INHIBITING DRUG IS AMBIGUOUS, NYU’S COMPLAINT SEEKING ROYALTIES SHOULD NOT HAVE BEEN DISMISSED)/AMBIGUITY (CONTRACT LAW, CONTRACT BETWEEN NYU AND A PHARMACEUTICAL COMPANY CONCERNING THE DEVELOPMENT OF A CANCER-INHIBITING DRUG IS AMBIGUOUS, NYU’S COMPLAINT SEEKING ROYALTIES SHOULD NOT HAVE BEEN DISMISSED)

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NO OUT-OF-POCKET LOSS ALLEGED, FRAUDULENT INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined plaintiff chef’s failure to allege out-of-pocket loss in this fraudulent inducement action required dismissal of the complaint for failure to state a cause of action. Plaintiff was hired by defendant restaurant (Chipotle) to develop a ramen restaurant chain. Plaintiff was an at will employee by the terms of his contract. All went well until plaintiff was told defendant had contracted with another chef for the same service, the deal had fallen apart, and the other chef would sue upon the opening of the ramen restaurant. Plaintiff was fired after confronting defendant about the deal with the other chef. Plaintiff alleged he was fraudulently induced to contract with Chipotle in that he never would have entered the agreement had he been informed of the failed deal with the other chef:

In New York, as in multiple other states, “‘[t]he true measure of damage is indemnity for the actual pecuniary loss sustained as the direct result of the wrong’ or what is known as the ‘out-of-pocket’ rule” … . Under that rule, “[d]amages are to be calculated to compensate plaintiffs for what they lost because of the fraud, not to compensate them for what they might have gained . . . . [T]here can be no recovery of profits which would have been realized in the absence of fraud” … . Moreover, this Court has “consistent[ly] refus[ed] to allow damages for fraud based on the loss of a contractual bargain, the extent, and indeed . . . the very existence of which is completely undeterminable and speculative” … . Connaughton v Chipotle Mexican Grill, Inc., 2017 NY Slip Op 03445, CtApp 5-2-17

FRAUD (NO OUT-OF-POCKET LOSS ALLEGED, FRAUDULENT INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION)/CONTRACT LAW (FRAUDULENT INDUCEMENT, NO OUT-OF-POCKET LOSS ALLEGED, FRAUDULENT INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION)/FRAUDULENT INDUCEMENT (CONTRACT LAW, NO OUT-OF-POCKET LOSS ALLEGED, FRAUDULENT INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION)/EMPLOYMENT LAW (FRAUDULENT INDUCEMENT, CONTRACT LAW, NO OUT-OF-POCKET LOSS ALLEGED, FRAUDULENT INDUCEMENT CAUSE OF ACTION PROPERLY DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION)

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