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DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN TRIP AND FALL CASE PROPERLY GRANTED.

The First Department, over a dissent, determined defendants were entitled to summary judgment in this slip and fall case. Plaintiff alleged he tripped over the upturned corner of a rug:

The doorman on duty testified that he observed the carpet, used when there was inclement weather, in its usual location between the door and the elevator less than an hour before the accident and that he did not notice any part of the carpet that was not lying perfectly flat in the area of the elevators … . He also testified that he did not remember having ever seen a carpet whose corners were not lying flat to the floor at any time during January 2011. Nor did he ever see anyone use tape to keep the corners of the carpet down. Defendants also pointed to plaintiff’s testimony that the first time he saw a portion of the carpet raised was when the doorman helped him after he fell … . Reeves v 1700 First Ave. LLC, 2016 NY Slip Op 06050, 1st Dept 9-15-16

NEGLIGENCE (DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN TRIP AND FALL CASE PROPERLY GRANTED)/SLIP AND FALL (DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN TRIP AND FALL CASE PROPERLY GRANTED)

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UNAMBIGUOUS TERMS OF POLICY REQUIRED A WRITTEN CONTRACT WITH ANY ADDITIONAL INSURED; THE ABSENCE OF A WRITTEN CONTRACT DIRECTLY WITH THE ADDITIONAL INSURED PRECLUDED COVERAGE, DESPITE A WRITTEN AGREEMENT WITH A THIRD PARTY TO PROVIDE COVERAGE FOR THE ADDITIONAL INSURED.

The First Department, in a full-fledged opinion by Justice Renwick, over an extensive dissenting opinion by Justice Kahn, determined that, under the unambiguous terms of the policy, the absence of a written contract directly with the additional insured precluded coverage for the additional insured, despite a written agreement with a third party to provide coverage for the additional insured. The lawsuit stemmed from damage to surrounding buildings during construction:

The principal issue in this appeal is the interpretation of the additional insurance endorsement in the policy which provides that an additional insured is “any person or organization with whom you [the insured] have agreed to add as an additional insured by written contract.” Trial courts have arrived at conflicting interpretations of a similarly worded additional insured clause as to whether coverage is extended not only to those “with whom” the insured agreed, but also to those “for whom” the insured agreed to provide coverage … . We hold that the subject additional insured clause covers only those that have a written contracts directly with the named insured. * * *

… [W]e find that the language in the “Additional Insured-By Written Contract” clause of the … policy clearly and unambiguously requires that the named insured execute a contract with the party seeking coverage as an additional insured. Since there is no dispute that [the insured] did not enter into a written contract with the JV (joint venture), [the insured’s] agreement in its contract with DASNY (Dormitory Authority of the City of New York) to procure coverage for the JV is insufficient to afford the JV coverage as an additional insured under the … policy. Gilbane Bldg. Co./TDX Constr. Corp. v St. Paul Fire & Mar. Ins. Co., 2016 NY Slip Op 06052, 1st Dept 9-15-16

 

INSURANCE LAW (UNAMBIGUOUS TERMS OF POLICY REQUIRED A WRITTEN CONTRACT WITH ANY ADDITIONAL INSURED; THE ABSENCE OF A WRITTEN CONTRACT DIRECTLY WITH THE ADDITIONAL INSURED PRECLUDED COVERAGE, DESPITE A WRITTEN AGREEMENT WITH A THIRD PARTY TO PROVIDE COVERAGE FOR THE ADDITIONAL INSURED)/CONTRACT LAW (UNAMBIGUOUS TERMS OF POLICY REQUIRED A WRITTEN CONTRACT WITH ANY ADDITIONAL INSURED; THE ABSENCE OF A WRITTEN CONTRACT DIRECTLY WITH THE ADDITIONAL INSURED PRECLUDED COVERAGE, DESPITE A WRITTEN AGREEMENT WITH A THIRD PARTY TO PROVIDE COVERAGE FOR THE ADDITIONAL INSURED)/ADDITIONAL INSURED (UNAMBIGUOUS TERMS OF POLICY REQUIRED A WRITTEN CONTRACT WITH ANY ADDITIONAL INSURED; THE ABSENCE OF A WRITTEN CONTRACT DIRECTLY WITH THE ADDITIONAL INSURED PRECLUDED COVERAGE, DESPITE A WRITTEN AGREEMENT WITH A THIRD PARTY TO PROVIDE COVERAGE FOR THE ADDITIONAL INSURED)

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EMPLOYMENT DISCRIMINATION CLAIMS UNDER STATE AND CITY HUMAN RIGHTS LAW SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY.

The First Department determined plaintiff stated causes of action for employment discrimination and retaliation under both the state and city (NYC) Human Rights Law. The court noted that claims after 2011 were time-barred under the state law, but claims going back to 2007 were timely under the city law, which allows otherwise time-barred claims which are part of a continuing course of conduct:

… [P]laintiff’s claims under the New York State HRL for failure to promote after May 23, 2011 are timely and should not have been dismissed, as plaintiff alleged sufficient facts to meet his pleading burden for purposes of this motion to dismiss … . Plaintiff’s claims for failure to promote under the City HRL were also improperly dismissed because plaintiff has adequately alleged “a single continuing pattern of unlawful conduct [starting from his first promotion rejection in 2007] extending into the [limitations] period immediately preceding the filing of the complaint” … , which permits consideration under the City HRL of all actions relevant to that claim, including those that would otherwise be time-barred … . Moreover, while, as plaintiff concedes, the continuing violations doctrine only applies to his claims of failure to promote under the City HRL … , even under the State HRL, he “is not precluded from using the prior acts as background evidence in support of a timely claim'” … . St. Jean Jeudy v City of New York, 2016 NY Slip Op 06045, 1st Dept 9-15-16

EMPLOYMENT LAW (EMPLOYMENT DISCRIMINATION CLAIMS UNDER STATE AND CITY HUMAN RIGHTS LAW SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY)/HUMAN RIGHTS LAW (EMPLOYMENT DISCRIMINATION CLAIMS UNDER STATE AND CITY HUMAN RIGHTS LAW SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY)/DISCRIMINATION (EMPLOYMENT DISCRIMINATION CLAIMS UNDER STATE AND CITY HUMAN RIGHTS LAW SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY)/

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QUESTION OF FACT WHETHER LATE NOTICE DEFENSE WAIVED BY FAILURE TO RAISE THE DEFENSE IN DISCLAIMER LETTERS; MOTION TO ADD DEFENSE TO ANSWER PROPERLY GRANTED.

The Court of Appeals, in a brief memorandum decision, determined there was a question of fact whether defendant insurance company waived the late-notice defense by not mentioning the defense in the disclaimer letters. The defense had been raised in earlier communications. Therefore defendants’ motion to add the defense in an amended answer was properly granted:

Analyzing the circumstances under the common-law waiver standard, which requires an examination of all factors, defendants cannot be said to have waived their right to assert the late-notice defense as a matter of law by failing to specifically identify late notice in their disclaimer letters. Defendants identified the late-notice defense in early communications with plaintiff before relying on a reservation of rights in two disclaimer letters. “[U]nder common-law principles, triable issues of fact exist whether defendants clearly manifested an intent to abandon their late-notice defense” (Keyspan Gas E. Corp. v Munich Reins. Am., Inc., 23 NY3d 583, 591 [2014]). Accordingly, Supreme Court properly granted defendants’ motion for leave to amend their answer to reassert the affirmative defense of late notice. Estee Lauder Inc. v OneBeacon Ins. Group, LLC, 2016 NY Slip Op 06012, CtApp 9-15-16

INSURANCE LAW (QUESTION OF FACT WHETHER LATE NOTICE DEFENSE WAIVED BY FAILURE TO RAISE THE DEFENSE IN DISCLAIMER LETTERS; MOTION TO ADD DEFENSE TO ANSWER PROPERLY GRANTED)/CIVIL PROCEDURE (INSURANCE LAW, WAIVER, QUESTION OF FACT WHETHER LATE NOTICE DEFENSE WAIVED BY FAILURE TO RAISE THE DEFENSE IN DISCLAIMER LETTERS; MOTION TO ADD DEFENSE TO ANSWER PROPERLY GRANTED)/WAIVER (QUESTION OF FACT WHETHER LATE NOTICE DEFENSE WAIVED BY FAILURE TO RAISE THE DEFENSE IN DISCLAIMER LETTERS; MOTION TO ADD DEFENSE TO ANSWER PROPERLY GRANTED)

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QUESTION OF FACT WHETHER POSITION OF TAXI PARTIALLY IN THE ROADWAY WAS PROXIMATE CAUSE OF PASSENGER’S INJURIES WHEN PASSENGER WAS STRUCK BY ANOTHER CAR APPROACHING FROM THE REAR.

The Second Department, over a dissent, determined there was a question of fact whether a taxi driver (Rahman) breached a duty to a pedestrian (O’Connor) by positioning the cab partially in a traffic lane such that the view of drivers approaching from the rear was obstructed. The pedestrian, who had just gotten out of the cab, was struck by another cab (driven by Aidoo) when he attempted to cross the road. Any breach related to letting the passenger/pedestrian off too far from the curb was not the proximate cause of the injuries:

Rahman’s taxicab, which was stopped at least partially in the right travel lane, may have obscured Aidoo’s view of O’Connor as O’Connor began to cross the street. This raised a triable issue of fact as to whether Rahman’s positioning of his car at least partially in a travel lane was a violation of the traffic rules of the City of New York (see 34 RCNY 4-08[e]), and whether that violation was a proximate cause of the collision and of O’Connor’s injuries and death … .

Contrary to the position taken by our dissenting colleague, the duty of a common carrier to safely discharge a passenger is not the sole basis asserted for liability in this action. The asserted liability of Rahman does not depend on whether he breached his duty to O’Connor as his passenger. Rahman’s alleged breach of that duty, by letting O’Connor off too far from the curb, did not proximately cause O’Connor’s injuries, which resulted from his attempt to cross the street …  . Instead, liability arises, if at all, from Rahman’s breach of duty to O’Connor as a pedestrian by positioning his cab partially in a traffic lane, thereby obstructing the view of drivers approaching from the rear … . O’Connor v Ronnie Cab Corp., 2016 NY Slip Op 05980, 2nd Dept 9-14-16

 

NEGLIGENCE (QUESTION OF FACT WHETHER POSITION OF TAXI PARTIALLY IN THE ROADWAY WAS PROXIMATE CAUSE OF PASSENGER’S INJURIES WHEN PASSENGER WAS STRUCK BY ANOTHER CAR APPROACHING FROM THE REAR)/PEDESTRIANS (QUESTION OF FACT WHETHER POSITION OF TAXI PARTIALLY IN THE ROADWAY WAS PROXIMATE CAUSE OF PASSENGER’S INJURIES WHEN PASSENGER WAS STRUCK BY ANOTHER CAR APPROACHING FROM THE REAR)/TAXICABS (QUESTION OF FACT WHETHER POSITION OF TAXI PARTIALLY IN THE ROADWAY WAS PROXIMATE CAUSE OF PASSENGER’S INJURIES WHEN PASSENGER WAS STRUCK BY ANOTHER CAR APPROACHING FROM THE REAR)

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COUNTY HAD AUTHORITY TO IMPOSE A WAGE FREEZE TO ADDRESS A FINANCIAL CRISIS.

MUNICIPAL LAW, EMPLOYMENT LAW.

The Second Department, interpreting the Public Authorities Law, determined Nassau County had the authority to impose a wage freeze on county employees to address a financial crisis:

… [W]e find that, contrary to the … petitioners’ contention, the Supreme Court correctly determined that NIFA [Nassau County Interim Finance Authority] was authorized under the NIFA Act to impose the subject wage freezes (see Public Authorities Law § 3669[3]). Public Authorities Law § 3669(3) expressly provides for NIFA’s authority to declare a control period by enacting a resolution finding a fiscal crisis, and upon such finding, order that all increases in salary or wages of county employees be suspended. Control periods may be declared “at any time” (Public Authorities Law § 3669[1]). Matter of Carver v Nassau County Interim Fin. Auth., 2016 NY Slip Op 05995, 2nd Dept 9-14-16

MUNICIPAL LAW (COUNTY HAD AUTHORITY TO IMPOSE A WAGE FREEZE TO ADDRESS A FINANCIAL CRISIS)/EMPLOYMENT LAW (MUNICIPAL LAW, COUNTY HAD AUTHORITY TO IMPOSE A WAGE FREEZE TO ADDRESS A FINANCIAL CRISIS)/WAGE FREEZE (COUNTY HAD AUTHORITY TO IMPOSE A WAGE FREEZE TO ADDRESS A FINANCIAL CRISIS)

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PORTION OF DETECTIVE’S INTERNAL AFFAIRS FILE DISCOVERABLE; DEPOSITION OF ADDITIONAL EMERGENCY MEDICAL TECHNICIANS SHOULD HAVE BEEN ALLOWED.

In an action against a detective and emergency medical technicians (EMT’s) alleging negligence during an emergency response, the Second Department determined a portion of the detective’s “internal affairs” file was discoverable as “material and necessary” and the deposition of two additional EMT’s should have been allowed because sufficient information about the response to the accident had not been provided by the EMT’s who had been deposed:

Contrary to the Supreme Court’s determination, we find that two of the Internal Affairs records must be disclosed because they are relevant and material: (1) a recording or recordings of emergency dispatch calls referred to as “Seventh Precinct Band (Disc #1)” and (2) a “Fire, Rescue, and Emergency Services (FRES)” recording. Accordingly, the court should have granted that branch of the plaintiffs’ motion which was to compel the disclosure of those two records (see Civil Rights Law § 50-a…). * * *

Supreme Court should have granted that branch of the plaintiffs’ motion which was to compel the depositions of the EMTs or EMT aides who were present at the accident scene. In the first instance, a municipality has the right to determine which of its officers or employees with knowledge of the facts may appear for a deposition … . Similarly, “[a] corporate entity has the right to designate, in the first instance, the employee who shall be examined” … . In order to demonstrate that additional depositions are necessary, the movant must show “(1) that the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case” … .

Here, only two EMTs who responded to the accident scene have been deposed thus far, and one of those EMTs is the … officer who allegedly failed to provide necessary first aid to the decedent. The testimony of these two emergency responders did not provide sufficient information regarding the actions taken by the various EMTs and ambulance workers who responded to the accident, and it is likely that other on-scene EMTs may possess relevant and material information. Under these circumstances, the plaintiffs are entitled to depose the other members of the ambulance company who were present at the accident scene … . Cea v Zimmerman, 2016 NY Slip Op 05968, 2nd Dept 9-14-16

 

MUNICIPAL LAW (PORTION OF DETECTIVE’S INTERNAL AFFAIRS FILE DISCOVERABLE; DEPOSITION OF ADDITIONAL EMERGENCY MEDICAL TECHNICIANS SHOULD HAVE BEEN ALLOWED)/CIVIL RIGHTS LAW (POLICE OFFICERS, PORTION OF DETECTIVE’S INTERNAL AFFAIRS FILE DISCOVERABLE)/POLICE OFFICERS (POLICE OFFICERS, PORTION OF DETECTIVE’S INTERNAL AFFAIRS FILE DISCOVERABLE)/CIVIL PROCEDURE (NEGLIGENCE, DEPOSITION OF ADDITIONAL EMERGENCY MEDICAL TECHNICIANS SHOULD HAVE BEEN ALLOWED)/NEGLIGENCE (NEGLIGENCE, PORTION OF DETECTIVE’S INTERNAL AFFAIRS FILE DISCOVERABLE; DEPOSITION OF ADDITIONAL EMERGENCY MEDICAL TECHNICIANS SHOULD HAVE BEEN ALLOWED)

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LANDLORD DID NOT HAVE A DUTY TO DISCLOSE LOCAL LAWS RESTRICTING THE USE OF THE PROPERTY.

The Second Department determined the terms of the lease negated the claimed violation of an implied covenant of good faith and fair dealing. The plaintiffs leased defendants’ property to operate a car dealership. After learning that a local law prohibited parking cars without license plates on the property, the plaintiffs asked to be released from the lease. The landlord refused. The terms of the lease specifically stated (1) it was subject to any local law restrictions and (2) it made no representations the property was suitable to plaintiffs’ intended business:

The implied covenant of good faith and fair dealing is breached when a party acts in a manner that would deprive the other party of the right to receive the benefits of their agreement … . The implied covenant includes any promises which a reasonable promisee would be justified in understanding were included … . However, no obligation may be implied that would be inconsistent with other terms of the contractual relationship … . Here, a finding that the defendants breached the covenant of good faith and fair dealing would necessarily contradict explicit and unambiguous terms of the lease agreements and create additional obligations not contained in them. Specifically, the lease agreements, which the defendants submitted in support of their motion, provided that the written agreements superseded all “representations and understandings, written, oral or otherwise, between or among the parties with respect to the matters contained herein.” Additionally, the specific provisions in the lease agreements relating to parking were made subject to “any restrictions of local law, zoning or ordinance.” Finally, the lease agreements specifically provided that the landlord made no representation concerning the suitability of the premises for the plaintiffs’ intended business. Imposing a duty on the landlord to disclose zoning or local law restrictions would render those provisions ineffective … . These express and specific provisions in the lease itself conclusively establish a defense to causes of action alleging breach of the implied covenant of good faith and fair dealing … . 1357 Tarrytown Rd. Auto, LLC v Granite Props., LLC, 2016 NY Slip Op 05981, 2nd Dept 9-14-16

LANDLORD-TENANT (LANDLORD DOES NOT HAVE A DUTY TO DISCLOSE LOCAL LAWS RESTRICTING THE USE OF THE PROPERTY)/CONTRACT (LEASES, LANDLORD DOES NOT HAVE A DUTY TO DISCLOSE LOCAL LAWS RESTRICTING THE USE OF THE PROPERTY)/COVENANT OF GOOD FAITH AND FAIR DEALING (LEASES, LANDLORD DOES NOT HAVE A DUTY TO DISCLOSE LOCAL LAWS RESTRICTING THE USE OF THE PROPERTY)

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SAFE ACT DOES NOT AFFECT APPLICABILITY OF FREEDOM OF INFORMATION LAW EXEMPTIONS TO HOLDERS OF PISTOL PERMITS.

In a matter of first impression, the Second Department determined the SAFE ACT, which allows holders of pistol permits to apply to have their names and addresses removed from the public record, does not affect the application of the Freedom of Information Law (FOIL) exemptions to holders of pistol permits which remain on the public record. Therefore, the newspaper’s (Gannett’s) request for the names and addresses of pistol permit holders (those not “excepted” under the SAFE ACT) was properly granted because none of the FOIL exemptions applied:

The County parties’ argument that, pursuant to Public Officers Law §§ 87(2)(b) and 89(2)(b)(ii), disclosure of the names and addresses of pistol permit holders would constitute an unwarranted invasion of privacy because Gannett intends to use the names and addresses of pistol permit holders for solicitation purposes is without merit. Gannett’s status as a commercial enterprise does not demonstrate that Gannett intends to use the names and addresses to solicit business … , and it represented that it did not intend to do so.

Moreover, the County parties failed to establish that disclosure of the names and addresses would ” be offensive and objectionable to a reasonable [person] of ordinary sensibilities'” … . The County parties also failed to establish that any other exemptions to the FOIL disclosure requirement are applicable to the records at issue. Matter of Inc. v County of Putnam, 2016 NY Slip Op 05999, 2nd Dept 9-14-16

FREEDOM OF INFORMATION LAW (FOIL) (SAFE ACT DOES NOT AFFECT APPLICABILITY OF FREEDOM OF INFORMATION LAW EXEMPTIONS TO HOLDERS OF PISTOL PERMITS)/SAFE ACT (SAFE ACT DOES NOT AFFECT APPLICABILITY OF FREEDOM OF INFORMATION LAW EXEMPTIONS TO HOLDERS OF PISTOL PERMITS)/PISTOL PERMITS (SAFE ACT DOES NOT AFFECT APPLICABILITY OF FREEDOM OF INFORMATION LAW EXEMPTIONS TO HOLDERS OF PISTOL PERMITS)

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FOUNDATION REQUIREMENTS FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET. BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The Second Department determined the plaintiff bank failed to satisfy the foundation for the business records exception to the hearsay rule. The bank’s motion for summary judgment should have been denied. Although the affiant (Roesner) stated he was familiar with the successor-in-interest’s record keeping system, he did not allege he was familiar with the plaintiff bank’s record keeping practices and procedures:

Roesner averred, inter alia, that his knowledge of the relevant facts was based on his “examination of the financial books and business records made in the ordinary course of business maintained by or on behalf of the successor in interest to the Plaintiff,” and that he was “familiar with the record keeping systems that [the] successor in interest to the Plaintiff and/or its loan servicer use[d] to record and create information related to the residential mortgage loans that it services.” …

* * * On its motion for summary judgment, a plaintiff has the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law … .

The plaintiff failed to demonstrate the admissibility of the records relied upon by Roesner under the business records exception to the hearsay rule (see CPLR 4518[a]), and, thus, failed to establish the appellant’s default in payment under the note. “A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures”… . Roesner, who was employed by the loan servicer …, did not allege that he was personally familiar with the plaintiff’s record keeping practices and procedures. Thus, Roesner failed to lay a proper foundation for the admission of records concerning the appellant’s payment history… . HSBC Mtge. Servs., Inc. v Royal, 2016 NY Slip Op 05973, 2nd Dept 9-14-16

 

FORECLOSURE (FOUNDATION REQUIREMENTS FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET. BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/EVIDENCE (FORECLOSURE. FOUNDATION REQUIREMENTS FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET. BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)/BUSINESS RECORDS EXCEPTION TO HEARSAY RULE, (FORECLOSURE. FOUNDATION REQUIREMENTS FOR BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE NOT MET. BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED)

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