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INSURER FAILED TO GIVE ADEQUATE NOTICE OF A CHANGE IN THE COVERAGE OF THE UNDERLYING AUTO LIABILITY POLICY REQUIRED BY ITS UMBRELLA POLICY, UMBRELLA POLICY REFORMED TO RESTORE THE RESULTING GAP IN COVERAGE.

The Second Department, in a full-fledged opinion by Justice Cohen, determined defendant insurer failed to notify plaintiff of an elimination of coverage as required by Insurance Law 3425. The insurance contract was reformed to include the eliminated coverage. Plaintiff had a $1,000,000 umbrella auto insurance policy with the defendant insurer (Allstate). When plaintiff purchased the umbrella policy it required $100,000/$300,000 coverage in the underlying policy. Although the limit of the umbrella policy did not change, the requirements for the underlying policy were increased to $250,000/$500,000. After an accident, Allstate paid the excess over $250,000, but refused to pay the difference between the $100,000 actual coverage of the underlying policy and the $250,000 required coverage:

Insurance Law § 3425 imposes restrictions on a liability insurer’s right to cancel, refuse to renew, or condition renewal of a policy, and requires the insurer to provide notice to the policyholder before any cancellation, nonrenewal, or conditional renewal occurs. At issue on this appeal is Insurance Law § 3425(d)(1), which requires an insurer to notify a policyholder, at least 45 days before the end of the coverage period, of its intention to condition renewal “upon change of limits or elimination of any coverages,” and to provide a specific reason for so conditioning renewal. … [W]e find that the notice requirement of Insurance Law § 3425(d)(1) applies where, as here, an insurer issues an umbrella policy providing the policyholder with additional coverage above the limits of his or her automobile coverage, and then increases the amount of underlying automobile liability insurance the policyholder must maintain before the additional coverage provided by the umbrella policy becomes available. We further find that an insurer’s failure to comply with Insurance Law § 3425(d)(1) provides a basis for reformation of the subject policy. Gotkin v Allstate Ins. Co., 2016 NY Slip Op 05359, 2nd Dept 7-6-16

INSURANCE LAW (INSURER FAILED TO GIVE ADEQUATE NOTICE OF A CHANGE IN THE COVERAGE OF THE UNDERLYING AUTO LIABILITY POLICY REQUIRED BY ITS UMBRELLA POLICY, UMBRELLA POLICY REFORMED TO RESTORE THE RESULTING GAP IN COVERAGE)/CONTRACT LAW (INSURANCE POLICY, INSURER FAILED TO GIVE ADEQUATE NOTICE OF A CHANGE IN THE COVERAGE OF THE UNDERLYING AUTO LIABILITY POLICY REQUIRED BY ITS UMBRELLA POLICY, UMBRELLA POLICY REFORMED TO RESTORE THE RESULTING GAP IN COVERAGE)/REFORMATION (INSURANCE POLICY, INSURER FAILED TO GIVE ADEQUATE NOTICE OF A CHANGE IN THE COVERAGE OF THE UNDERLYING AUTO LIABILITY POLICY REQUIRED BY ITS UMBRELLA POLICY, UMBRELLA POLICY REFORMED TO RESTORE THE RESULTING GAP IN COVERAGE)

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FAMILY COURT SHOULD HAVE GRANTED A PETITION SEEKING AN ORDER FOR FINDINGS REQUIRED FOR SPECIAL IMMIGRANT RESIDENT STATUS.

The Second Department, reversing Family Court, determined the petition for an order making specific findings which would lead to special immigrant resident status (SIJS) should have been granted:

Pursuant to 8 USC § 1101(a)(27)(J) … and 8 CFR 204.11, a special immigrant is a resident alien who, inter alia, is under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. Additionally, for a juvenile to qualify for SIJS, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not possible due to parental abuse, neglect, abandonment, or a similar basis found under state law … , and that it would not be in the juvenile’s best interest to be returned to his or her previous country of nationality or country of last habitual residence … .

Based upon our independent factual review, the record establishes that the child’s father is deceased, and therefore, reunification of the child with the father is not possible … .

Further, the Family Court erred with respect to its recital of the best interest element. The law does not require a finding that “it is in [the child’s] best interest to remain in the United States,” but that “it would not be in the [child’s] best interest to be returned to [his or her] previous country of nationality or country of last habitual residence” (8 USC § 1101[a][27][J][ii]). Here, the record reflects that it would not be in the child’s best interest to be returned to El Salvador, her previous country of nationality and last habitual residence. Matter of Carlos A.M. v Maria T.M., 2016 NY Slip Op 05374, 2nd Dept 7-6-16

 

FAMILY LAW (FAMILY COURT SHOULD HAVE GRANTED A PETITION SEEKING AN ORDER FOR FINDINGS REQUIRED FOR SPECIAL IMMIGRANT RESIDENT STATUS)/IMMIGRATION LAW (FAMILY COURT SHOULD HAVE GRANTED A PETITION SEEKING AN ORDER FOR FINDINGS REQUIRED FOR SPECIAL IMMIGRANT RESIDENT STATUS)/SPECIAL IMMIGRANT RESIDENT STATUS (FAMILY COURT SHOULD HAVE GRANTED A PETITION SEEKING AN ORDER FOR FINDINGS REQUIRED FOR SPECIAL IMMIGRANT RESIDENT STATUS)

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SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS.

The Second Department determined criminal contempt charges rendered the indictment multiplicitous. The charge offense was a continuing offense and there was no interruption in the course of conduct:

An indictment is multiplicitous ” when a single offense is charged in more than one count'” … . In addition, “[a]n indictment cannot charge a defendant with more than one count of a crime that can be characterized as a continuing offense unless there has been an interruption in the course of conduct” … . Here, counts 4, 5, 6, 7, 8, 9, 10, and 11 of the indictment are multiplicitous of count three since those counts allege a continuous offense consisting of the defendant’s repeated telephone calls, over a nine-month period, with the intent to harass, annoy, threaten, or alarm the victim (see Penal Law § 215.51[b][iv]). The dates used by the prosecution to divide the counts did not establish that there was an interruption in the course of conduct … . People v Young, 2016 NY Slip Op 05395, 2nd Dept 7-6-16

CRIMINAL LAW (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/EVIDENCE (CRIMINAL LAW, SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/MULTIPLICITOUS INDICTMENT (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/INDICTMENTS (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/CONTINUING OFFENSE (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)/CONTEMPT (SEPARATE COUNTS FOR A CONTINUING OFFENSE RENDERED INDICTMENT MULTIPLICITOUS)

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PEOPLE REBUTTED PRESUMPTION UNPRESERVED PHOTO ARRAY WAS UNDULY SUGGESTIVE.

The Second Department determined the People had rebutted the presumption that unpreserved photo arrays were unduly suggestive:

… [A]lthough the People’s failure to preserve the photographic arrays displayed through the use of the photo manager system gives rise to a presumption of suggestiveness, the People nevertheless rebutted that presumption and sustained their initial burden of production through the testimony of the police officer who administered the photo identification procedure. The officer testified that the complainant’s daughter was shown computer-generated photo arrays shortly after the attack occurred. The officer further testified as to the specific information that was entered into the photo manager system, which included the perpetrator’s race and approximate age, height, and weight … . The officer testified that approximately 230 photographs fit the search criteria that was entered into the photo manager system and that these photographs were displayed in arrays consisting of six photographs at a time. Under the circumstances, the People sustained their initial burden of demonstrating the reasonableness of the police conduct and the lack of any undue suggestiveness … . Furthermore, upon our review of the record of the hearing, we conclude that the defendant failed to sustain his ultimate burden of proving that the photo identification procedure was unduly suggestive … . People v Busano, 2016 NY Slip Op 05385, 2nd Dept 7-6-16

CRIMINAL LAW (PEOPLE REBUTTED PRESUMPTION UNPRESERVED PHOTO ARRAY WAS UNDULY SUGGESTIVE)/EVIDENCE (CRIMINAL LAW, PEOPLE REBUTTED PRESUMPTION UNPRESERVED PHOTO ARRAY WAS UNDULY SUGGESTIVE)/PHOTO ARRAYS (PEOPLE REBUTTED PRESUMPTION UNPRESERVED PHOTO ARRAY WAS UNDULY SUGGESTIVE)/IDENTIFICATION (CRIMINAL LAW, PEOPLE REBUTTED PRESUMPTION UNPRESERVED PHOTO ARRAY WAS UNDULY SUGGESTIVE)

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PROSECUTORIAL MISCONDUCT WARRANTED REVERSAL IN THE INTEREST OF JUSTICE.

The Second Department reversed defendant’s conviction in the interest of justice because of the prosecutor’s misconduct. The decision went into great detail describing the substance of the misconduct (not summarized here):

… [T]he judgment of conviction must be reversed and a new trial ordered as a result of pervasive prosecutorial misconduct. During opening statements as well as on summation, the prosecutor repeatedly engaged in improper conduct, including misstating the evidence, vouching for the credibility of witnesses with regard to significant aspects of the People’s case, calling for speculation by the jury, seeking to inflame the jury and arouse its sympathy, and improperly denigrating the defense … . Although objections to some of the remarks below were sustained, we nevertheless include them in order to provide a more complete picture of the pervasiveness of the misconduct at issue on this appeal. People v Redd, 2016 NY Slip Op 05392, 2nd Dept 7-6-16

CRIMINAL LAW (PROSECUTORIAL MISCONDUCT WARRANTED REVERSAL IN THE INTEREST OF JUSTICE)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT WARRANTED REVERSAL IN THE INTEREST OF JUSTICE)/PROSECUTORIAL MISCONDUCT (PROSECUTORIAL MISCONDUCT, WARRANTED REVERSAL IN THE INTEREST OF JUSTICE)

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BAR AT ENTRANCE TO A SHOPPING-CART CORRAL WAS A TRIVIAL DEFECT.

The First Department, reversing Supreme Court, determined defendant was entitled to summary judgment in this slip and fall case because the alleged defect was trivial. Plaintiff alleged tripped over a 3/8-inch-high bar at the entrance to an enclosure for shopping carts (cart corral):

The submissions on the motion establish that “the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses” … . [Defendant] presented photographs taken by plaintiff’s photographer, which show that the metal bar was only three-eighths of an inch above the surface of the parking lot. Those photographs, and others in the record that were shown to plaintiff at her deposition, establish that the bar was not hidden or covered in any way and did not constitute a trap. Myles v Spring Val. Marketplace, LLC, 2016 NY Slip Op 05351, 1st Dept 7-5-16

NEGLIGENCE (BAR AT ENTRANCE TO A SHOPPING-CART CORRAL WAS A TRIVIAL DEFECT)/SLIP AND FALL (BAR AT ENTRANCE TO A SHOPPING-CART CORRAL WAS A TRIVIAL DEFECT)/TRIVIAL DEFECT (BAR AT ENTRANCE TO A SHOPPING-CART CORRAL WAS A TRIVIAL DEFECT)

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QUESTION OF FACT WHETHER SKIER ACTED RECKLESSLY, THEREBY RENDERING THE ASSUMPTION OF RISK DOCTRINE INAPPLICABLE.

The First Department determined there was a question of fact whether plaintiff assumed the risk of being struck by defendant skier because defendant acted recklessly. Plaintiff was standing at the bottom of the ski slope when defendant collided with her:

Plaintiff snowboarder was injured when, while standing at the base of a beginner ski slope and speaking with a friend, defendant struck her while skiing at approximately 20 to 30 kilometers per hour. Although there are inherent risks in the sports of skiing and snowboarding, “participants do not consent to conduct that is reckless, intentional or so negligent as to create an unreasonably increased risk” … .

Here, the record presents triable issues as to whether defendant had engaged in reckless conduct as he skied into a crowded area at the base of a beginner’s slope, which was at or near a marked safety zone, and that he did so despite his awareness of his limited abilities to safely handle such speed under the snow surface conditions presented. Furthermore, in view of the significant injuries sustained by plaintiff, reasonable inferences may be drawn that she endured a violent collision, which raises an issue as to whether the speed at which defendant was skiing was reckless under the circumstances … . Horowitz v Chen, 2016 NY Slip Op 05335, 1st Dept 7-5-16

 

NEGLIGENCE (QUESTION OF FACT WHETHER SKIER ACTED RECKLESSLY, THEREBY RENDERING THE ASSUMPTION OF RISK DOCTRINE INAPPLICABLE)/ASSUMPTION OF RISK (QUESTION OF FACT WHETHER SKIER ACTED RECKLESSLY, THEREBY RENDERING THE ASSUMPTION OF RISK DOCTRINE INAPPLICABLE)/SKI ACCIDENT (QUESTION OF FACT WHETHER SKIER ACTED RECKLESSLY, THEREBY RENDERING THE ASSUMPTION OF RISK DOCTRINE INAPPLICABLE)

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QUESTION OF FACT WHETHER ACCIDENT WAS GRAVITY-RELATED, MOTORIZED WHEELBARROW SLID DOWN HILL.

The First Department determined there was a question of fact whether the accident was related to a gravity-related risk or merely part of the usual dangers of construction work. Plaintiff was operating a motorized wheelbarrow and was stopped near the top of a hill when it slid down the hill:

Issues of fact exist here as to whether plaintiff’s accident was the result of a gravity-related risk or part of the usual and ordinary dangers of the work site …  . Hence partial summary judgment on plaintiff’s Labor Law § 240(1) claim should have been denied, and summary dismissal of plaintiff’s Labor Law § 200 and common law negligence claims was properly denied. Ankers v Horizon Group, LLC, 2016 NY Slip Op 05342, 1st Dept 7-5-16

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER ACCIDENT WAS GRAVITY-RELATED, MOTORIZED WHEELBARROW SLID DOWN HILL)

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5 1/2 YEAR DELAY BEFORE INDICTMENT ADEQUATELY EXPLAINED; HEARSAY EVIDENCE OF THIRD-PARTY CULPABILITY PROPERLY EXCLUDED AS UNRELIABLE.

The First Department determined the People offered an adequate explanation of the 5 1/2 year delay between when defendant’s DNA was matched to evidence collected from the victims and the indictment. The court further determined the hearsay evidence of third-party culpability was properly excluded as unreliable:

In the intervening years, the prosecution had sought to obtain evidence to strengthen their case, which was based on circumstantial evidence, and the investigative delays were satisfactorily explained … . Furthermore, the resulting prejudice, if any, was minimal. While one potential witness, of questionable reliability, told police that two other men had committed the crimes, and that witness died during the period of delay at issue, the jury nevertheless heard testimony that one of those men had been arrested early in the case. Moreover, ‘a determination made in good faith to delay prosecution for sufficient reasons will not deprive defendant of due process even though there may be some prejudice to defendant’ … .

The court properly exercised its discretion in denying, on the ground of lack of sufficient indicia of reliability, defendant’s motion to admit hearsay evidence of third-party culpability … . The declarant, the above-discussed man who died during the pendency of the investigation, contradicted himself in numerous statements … . Moreover, other evidence in the case directly undermined the reliability of his statements. People v Fleming, 2016 NY Slip Op 05334, 1st Dept 7-5-16

CRIMINAL LAW (5 1/2 YEAR DELAY BEFORE INDICTMENT ADEQUATELY EXPLAINED; HEARSAY EVIDENCE OF THIRD-PARTY CULPABILITY PROPERLY EXCLUDED AS UNRELIABLE)/EVIDENCE (CRIMINAL LAW, HEARSAY EVIDENCE OF THIRD-PARTY CULPABILITY PROPERLY EXCLUDED AS UNRELIABLE)/PRE-INDICTMENT DELAY (5 1/2 YEAR DELAY BEFORE INDICTMENT ADEQUATELY EXPLAINED)/THIRD PARTY CULPABILITY (CRIMINAL LAW, HEARSAY EVIDENCE OF THIRD-PARTY CULPABILITY PROPERLY EXCLUDED AS UNRELIABLE)

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PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION.

The First Department determined a reporter’s videotaped interview with the defendant in this murder case must be turned over to the prosecution. Although the substance of some of defendant’s statements to the reporter was summarized in the portion of the interview which was aired on the news, relevant statements made by the defendant were not aired. The First Department determined the relevant unaired portions of the interview were not protected by qualified privilege under the Shield Law (Civil Rights Law 79-h):

Here, the outtakes of an interview of defendant taken at a detention center in which he discusses, inter alia, the charges against him and his relationship with the victim, are on their face “highly material and relevant” (Civil Rights Law § 79-h[c]). In a circumstantial murder case, evidence which, standing alone, might appear innocuous can be deemed critical when viewed in combination with other circumstantial evidence … . Here, the reporter described on air statements made by defendant in unaired portions of the interview to the effect that Ms. Moore was a good tenant and a good person who always paid her rent on time and was friendly with fellow neighbors. While these statements out of context might seem benign, the People argue persuasively that they are “critical or necessary” to the People’s effort to prove motive, intent, and consciousness of guilt, since they contradict defendant’s earlier statements to police … . Although the People have access to the substance of what defendant said from [the reporter’s] paraphrase on the News 12 broadcast, defendant’s actual words and his demeanor as he said them are available only on the unpublished video of the interview in News 12’s possession. ,,, [W]e find that the People have made the “clear and specific showing” required to overcome News 12’s qualified privilege as to nonconfidential journalistic material under article I, section 8 of New York’s Constitution and the Shield Law only as to those portions of the unaired News 12 footage of its interview with defendant in which defendant makes any statement concerning killing Ms. Moore, and discusses their relationship and his impressions and observations of her, including her conduct as a tenant … . People v Bonie, 2016 NY Slip Op 05331, 1st Dept 7-5-16

CIVIL RIGHTS LAW (SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/CONSTITUTIONAL LAW (REPORTERS, SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/CRIMINAL LAW (CIVIL RIGHTS LAW, REPORTERS, SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/REPORTERS (SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/PRIVILEGE (REPORTERS, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)

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