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Plaintiff’s Age-Discrimination Lawsuit Properly Survived Summary Judgment

The First Department, over an extensive dissent, determined defendant’s motion for summary judgment in an age-discrimination suit was properly denied. Plaintiff alleged she was terminated because of her age and was able to raise a question of fact about whether the reasons for termination proffered by the defendant were pretextual. The core of plaintiff’s allegations were remarks made by the person who replaced plaintiff as executive director of defendant-club—remarks noting plaintiff looked “tired” and perhaps needed to “rest” or questions whether plaintiff was “up for” meetings or whether a meeting might be “too much for” her:

…[W]e find that when plaintiff’s testimony is credited for purposes of this motion, these remarks directly reflect age-based discriminatory bias  …, and raise an inference of age-related bias sufficient to make out plaintiff’s prima facie case of employment discrimination … . In concluding that no inference of discriminatory motive can be drawn from this evidence, the dissent fails to abide by the precept that “all of the evidence must be viewed in the light most favorable to the party opposing the motion, and all reasonable inferences must be resolved in that party’s favor” … .

Plaintiff has … met her burden of showing pretext by “respond[ing] with some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete” … . Rollins v Fencers Club, Inc., 2015 NY Slip Op 03769, 1st Dept 5-7-15

 

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Plaintiff Wife Not Entitled to Distributive Award of Husband’s Separate Property Which Was Not Shown to Have Appreciated During the Marriage

The Second Department explained the equitable distribution principles applied to separate property which has not been demonstrated to have appreciated during marriage.

Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property” … . The defendant overcame the presumption that funds he deposited into the account of Clark Development, LLC (hereinafter CD, LLC), a company he formed during the marriage, were marital funds by presenting sufficient evidence that the source of the funds was separate property … . Moreover, although appreciation of, or increase in the value of, separate property is considered separate property, “except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse” (Domestic Relations Law § 236[B][1][d][3]), the plaintiff failed to carry her burden of establishing that CD, LLC, as the defendant’s separate property, appreciated in value during the parties’ marriage … . Accordingly, the Supreme Court erred in directing that the plaintiff was to receive a distributive award relating to CD, LLC. Clark v Clark, 2014 NY Slip Op 03224, 2nd Dept 5-7-14

Similar issue and result in Turco v Turco, 2014 NY Slip Op 03257, 2nd Dept 5-7-14

 

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Charging the Defendant with the Use of Two Weapons During a Single Incident Did Not Render the Indictment Duplicitous—Only Proof of the Use of One Weapon Was Required

The indictment alleged the defendant committed assault and reckless endangerment by using a pistol and a rifle.  The proof at trial demonstrated the defendant shot the victim twice, using two weapons, in the course of the same incident. The judge charged the jury using the conjunctive language of the indictment.  When the jury asked if it must find both weapons were used to commit the offenses, the judge explained that only the use of one of the weapons needed to be proved. The Court of Appeals affirmed, concluding the indictment was not duplicitous, i.e., the indictment did not charge two crimes in a single indictment count:

CPL 200.30 (1) requires that “each count of an indictment may charge one offense only.” Thus, a count is duplicitous if it charges more than one offense. …”[W]hether multiple acts may be charged as a continuing crime is resolved by reference to the language in the penal statute to determine whether the statutory definition of the crime necessarily contemplates a single act.” Under Penal Law § 120.10 (1), a person is guilty of assault in the first degree when “with intent to cause serious physical injury to another person, he [or she] causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.” Thus, the prosecution was not required to prove that defendant used two weapons. Penal Law § 120.25 states that a person is guilty of reckless endangerment in the first degree when, “under circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person.” Again, the prosecution was not required to prove that defendant used both weapons.

…[T]he evidence at trial did not render the charges duplicitous. There was evidence that defendant attacked the victim out of one impulse – to seek revenge for the fiancée’s alleged assault on defendant’s sister….”[A]s a general rule . . . it may be said that where a defendant, in an uninterrupted course of conduct directed at a single victim, violates a single provision of the Penal Law, he commits but a single crime.” Although defendant used two guns, this was a single incident … . People v Flanders, 2015 NY Slip Op 03768, CtApp 5-7-15

 

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Late Notice of the Accident by the Insured (in Violation of the “Prompt Notice Condition), Coupled with the Injured Plaintiff’s Failure to Make Reasonable Efforts to Identify and Notify the Insurer, Relieved the Insurer of Any Obligation to Defend or Indemnify the Insured

Plaintiff was injured while skiing at a ski resort (Nevele’s). The Third Department determined Nevele failed to give timely notice of the accident/injury to its insurer, Lexington.   Nevele did not inform Lexington for ten months. The policy included a “prompt notice condition.” The court noted that, because the injured party can also notify the insurer of an accident, late notice will be excused if the injured party is unable to identify the insurer after making reasonable efforts.  Here the plaintiffs sent a letter to Nevele asking Nevele to notify its insurer, but did nothing further to learn the identity of or notify the insurer.  Plaintiffs’ efforts were not sufficient to excuse the late notice:

Because an injured party is allowed by law to provide notice to an insurance company (see Insurance Law § 3420 [a] [3]), he or she is also generally held to any prompt notice condition precedent of a policy … . However, such an injured party can overcome an insurance company’s failure to receive timely notice — which would otherwise vitiate coverage — by a demonstration that he or she did not know the insurer’s identity despite his or her reasonably diligent efforts to obtain such information … .

As proof of their reasonably diligent efforts, plaintiffs submitted two letters that they had sent to Nevele with an attached questionnaire. The letters provided notice of the contemplated personal injury action, requested that Nevele complete the questionnaire and requested that Nevele either kindly refer the letter to Nevele’s insurance company or inform plaintiffs if Nevele was not insured. The attached questionnaire requested insurance carrier information. However, despite the fact that [plaintiff’s] accident did not involve any automobile, that questionnaire only specifically requested insurance information regarding Nevele’s automobile insurer. Nevele responded to the second correspondence, but it did not respond to the question relating to insurance coverage. The record is devoid of evidence that plaintiffs took any further efforts to ascertain Lexington’s identity.

* * * Given the combination of plaintiffs’ initial failure to specifically ask for the relevant insurance information, their failure to ask for such information after Nevele’s communication and their failure to promptly follow up in any other manner, plaintiffs failed to raise a triable issue of fact as to their reasonable efforts to ascertain Lexington’s identity … . Kleinberg v Nevele Hotel, LLC, 2015 NY Slip Op 03891, 3rd Dept 5-7-15

 

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Contract to Share Commissions with Person Not Licensed to Sell Insurance is Illegal and Unenforceable

The Second Department determined an alleged oral agreement(with Tellkamp) to share commissions for the sale of insurance with plaintiff, who initially was not licensed to sell insurance, was unenforceable.  But, for those policies sold after plaintiff was licensed, he might be entitled to commissions under a quantum meruit theory.

At the time that the plaintiff allegedly contracted with Tellkamp and began providing services, the plaintiff was not licensed by the State of New York as an insurance broker or a licensed insurance agent appointed by Phoenix Life, and he was not licensed by the State of New Jersey as an insurance producer (see Insurance Law §§ 2103, 2104, 2112; NJ Stat Ann §§ 17:22A-29, 17:22A-28). Accordingly, he was not legally permitted to receive payment of insurance commissions, either directly from the insurers or indirectly from Tellkamp (see Insurance Law § 2114[a]; NJ Stat Ann § 17:22A-41; Ops Gen Counsel NY Ins Dept No. 07-05-23 [May 31, 2007]). The alleged contract was therefore illegal and is unenforceable … . Ziv v Tellkamp 2014 NY Slip Op 03261, 2nd Dept 5-7-14

 

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Assault and Robbery Committed by Separate Acts Involving the Same Victim–Consecutive Sentences Justified

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a two-judge dissent, determined defendant was properly sentenced consecutively for robbery and assault.  The defendant first demanded that the victim turn over a necklace the victim was wearing. As the victim was complying, the defendant shot the victim. The court determined the two crimes were committed by separate acts, thereby justifying consecutive sentences. The dissent dealt with a different issue: i.e., whether CPL 430.10 prohibited Supreme Court from “reconfiguring” defendant's sentence after the case was remitted to it by the Appellate Division. After the Appellate Division determined two of the original sentences should have been imposed concurrently, the original 40-year sentence was reduced to 25. On remand, the sentencing court “reconfigured” the sentences to bring them up again to 40 years. CPL 430.10 prohibits the sentencing court from “modifying” a sentence after it has begun to be served. The “reconfigured” 40-year sentence was affirmed here by the Court of Appeals.  With respect to the consecutive sentences, the court explained:

Penal Law § 70.25 (2) mandates that concurrent sentences be imposed for “two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other.” We have held that, “[t]o determine whether consecutive sentences are permitted, a court must first look to the statutory definitions of the crimes at issue” to discern whether the actus reus elements overlap … . Even where the crimes have an actus reus element in common, “the People may yet establish the legality of consecutive sentencing by showing that the 'acts or omissions' committed by defendant were separate and distinct acts” … . Conversely, where “the actus reus is a single inseparable act that violates more than one statute, [a] single punishment must be imposed” … . The People bear the burden of establishing the legality of consecutive sentencing by “identifying the facts which support their view” that the crimes were committed by separate acts … .

Even if, as defendant contends, the statutory elements of his robbery and assault convictions overlap, the People have demonstrated in this case that the assault count and the robbery count at issue were committed by separate and distinct acts. People v Rodriguez, 2015 NY Slip Op 03877, CtApp 5-7-15

 

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NEGLIGENCE Plaintiff’s Inability to Identify the Precise Sidewalk Defect Which Caused Her Fall (In a Photograph) Did Not Warrant Summary Judgment to the Defendant—Plaintiff Testified She Tripped on a Bump in the Sidewalk

The First Department determined that plaintiff’s inability to identify the precise sidewalk defect over which she tripped did not warrant granting summary judgment to the defendant. Plaintiff testified her foot struck a bump in the sidewalk but she was unable to identify the defect in a photograph of the sidewalk. Under the circumstances the plaintiff was not required to identify the particular defect which caused her fall in order to avoid summary judgment. She was able to demonstrate a “nexus” between a defect and her fall:

At her deposition, plaintiff testified that she fell because her foot hit a bump in the sidewalk. Defendants moved for summary judgment on the ground that plaintiff’s inability to identify the bump or defect in photographs shown to her at her deposition prevented her from being able to prove that her accident was proximately caused by a sidewalk defect for which they were responsible … . Under the circumstances, plaintiff’s testimony was sufficient to demonstrate a causal “nexus” between a defect in the sidewalk in front of [defendant’s] property and her fall, and she was not required to prove “precisely which particular” defect in the sidewalk caused her to fall in order to avoid summary judgment … . Kovach v PJA, LLC, 2015 NY Slip Op 03931, 1st Dept 5-7-15

 

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Allegation Plaintiff Driver Stopped Suddenly for No Reason Raised a Question of Fact About Whether the Driver Who Struck Plaintiff’s Vehicle from Behind Was Negligent

The Second Department determined defendant driver (Catania) whose vehicle struck plaintiff’s vehicle from behind had raised a question of fact about whether there was a non-negligent explanation for the collision.  Defendant alleged plaintiff stopped suddenly for no reason:

The Supreme Court erred in granting the plaintiff’s motion for summary judgment on the issue of liability. Although the plaintiff’s affidavit in support of the motion demonstrated that his vehicle was struck in the rear, thus raising an inference of Catania’s negligence, the plaintiff’s submissions, which included a transcript of Catania’s deposition testimony, revealed a triable issue of fact as to whether Catania had a nonnegligent explanation for the collision. Catania testified at his deposition that his vehicle was stopped at a traffic light at a distance of approximately eight feet behind the plaintiff’s vehicle. When the light changed to green, Catania maintained a safe distance between the two vehicles, but the plaintiff came to an abrupt stop for no apparent reason when there was no pedestrian or vehicular traffic in front of it, and the two vehicles collided. Under these circumstances, a triable issue of fact exists… . Fernandez v Babylon Mun Solid Waste, 2014 NY Slip Op 03230, 2nd Dept 5-7-14

 

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Plea of “Nolo Contendere” to a Sex Offense in Florida Constitutes a “Conviction” of a Sex Offense Requiring Registration in New York

Petitioner pled “nolo contendere” to a sex offense in Florida. Petitioner contended that the offense was based on his having consensual sex with a 15-year-old classmate when petitioner was 18.  The Florida court withheld adjudication. The Court of Appeals determined petitioner was required to register as a sex offender upon his move to New York. The “nolo contendere” plea meets the definition of “conviction” in New York. A “sex offender” in New York is one who has been “convicted” of a “sex offense” which includes a felony in another jurisdiction for which the offender is required to register as a sex offender (the case here):

We held in People v Daiboch (265 NY 125 [1934]), … that the entry of a nolo contendere plea in another jurisdiction, followed by a judgment placing the defendant on probation for two years, was a prior conviction for purposes of sentencing the defendant as a second offender. Although Daiboch did not involve SORA, we confronted the same issue presented by this case: whether a defendant's out-of-state nolo contendere plea for which a non-incarceratory sentence was imposed qualifies as a conviction in New York. Nolo contendere pleas, like Alford pleas, are “no different from other guilty pleas” (Matter of Silmon v Travis, 95 NY2d 470, 475 [2000] [recognizing that an Alford plea may generally be used for the same purposes as any other conviction]). And because New York defines a conviction to include the entry of a guilty plea, regardless of the subsequent sentence or judgment, the ultimate disposition of petitioner's Florida conviction is irrelevant. New York distinguishes between a conviction and a “judgment of conviction,” the latter of which includes “a conviction and the sentence imposed thereon” (CPL 1.20 [15]). As we have previously observed, the Legislature intended the Criminal Procedure Law to provide the “definitive meaning” of the term “conviction” for other criminal statutes, and it meant what it said when it defined “conviction” separately from a judgment or sentence … . Matter of Kasckarow v Board of Examiners of Sex Offenders of State of N.Y., 2015 NY Slip Op 03878, CtApp 5-7-15

 

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Jury’s Finding that the Defendant Was Negligent but that the Negligence Was Not the Proximate Cause of the Accident Was Against the Weight of the Evidence—Motion to Set Aside the Verdict Should Have Been Granted—New Trial Ordered

The Third Department determined Supreme Court should have granted plaintiff’s motion to set aside the verdict.  Plaintiff was injured when her bicycle struck a recessed manhole cover.  Defendant construction company had placed barrels in the roadway to create a pedestrian walkway.  The placement of barrels served to direct users of the walkway toward the recessed manhole. The jury found the placement of the barrels negligent but further found that negligence was not the proximate cause of the accident.  The verdict was against the weight of the evidence because the only reason the placement of the barrels would be deemed negligent is that the barrels diverted traffic toward the recessed manhole:

“A jury’s finding that a party was at fault but that [such] fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” … . Further, we view the evidence in the light most favorable to the nonmoving party, defendant, and afford deference to the jury’s credibility determinations … . A “plaintiff’s own conduct may be a superceding cause which severs the causal connection between [the] defendant’s negligence and the injury [when] a plaintiff’s negligence [is] more than mere contributory negligence, which would be relevant in apportioning culpable conduct” … .

* * * The only theory presented at trial as to why such placement was negligent, as indicated in the jury instructions, was that it diverted traffic toward a dangerous recessed manhole cover. Given that the uncontested evidence was that plaintiff was diverted in just such a manner, no fair interpretation of the evidence “would support the conclusion that [plaintiff’s] conduct was so extraordinary or unforeseeable as to make it unreasonable to hold defendant[] responsible for the resulting damages” … . Therefore, Supreme Court erred in denying plaintiff’s motion to set aside the verdict. Durrans v Harrison & Burrowes Bridge Constructors, Inc., 2015 NY Slip Op 03896, 3rd Dept 5-7-15

 

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