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Supreme Court Properly Imputed Income to Husband (Higher than that Reported by Husband) in Awarding Pendente Lite Maintenance and Child Support

The Second Department determined Supreme Court properly imputed income to the defendant-husband to determine pendente lite awards of maintenance and child support:

…Supreme Court providently exercised its discretion in imputing income of $200,000 per year to the defendant for the purposes of computing pendente lite awards of maintenance and child support. In determining a party’s maintenance or child support obligation, a court need not rely upon the party’s own account of his or her finances … . A court is justified in imputing income to a spouse when it is shown that the marital lifestyle was such that, under the circumstances, there was a basis for the court to conclude that the spouse’s actual income and financial resources were greater than what he or she reported on his or her tax returns … . The court may impute income to establish the party’s support obligation (see Domestic Relations Law §§ 240 [1-b][b][5][iv]; 236[B][5-a][b][4][a]…). Here, the Supreme Court, in effect, found the defendant’s account of his own finances was not believable, and was justified in imputing income to him that was far higher than he reported… . Weitzner v Weitzner, 2014 NY Slip Op 06303, 2nd Dept 9-24-14

 

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Five-Month Delay In Disclaiming Coverage—Insurer Estopped

The Second Department determined the insurer’s delay in disclaiming coverage in a legal malpractice action prejudiced the attorney.  The insurer was therefore estopped from disclaiming coverage:

Where, as here, the matter does not involve death or bodily injury, the untimely disclaimer by an insurer does not automatically estop the insurer from disclaiming on the basis of late notice unless there has been a showing of prejudice to the insured due to the delay … . Although the court did not make a determination that [the attorney] was prejudiced by the defendants’ approximate five-month delay in disclaiming coverage, based upon this record, [the party injured by the alleged malpractice] made a sufficient showing of prejudice to [the attorney]due to the [insurer’s] late disclaimer such that the defendants are estopped from disclaiming coverage … .Moreover, the purported reason for the disclaimer of coverage was evident on the face of the original complaint, and did not require any additional investigation by the insurer … . The [insurer] failed to rebut this showing. B & R Consol LLC v Zurich Am Ins Co, 2014 NY Slip Op 06287, 2nd Dept 9-24-14

 

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Election of Remedies Provision of Labor Law 740 (Retaliation in Employment) Does Not Bar a Separate Claim Pursuant to Labor Law 203-c (Placement of Cameras in Employee Restrooms)

The Second Department determined the election of remedies provision of Labor Law 740 (retaliation in employment) did not bar a separate and independent claim pursuant to Labor Law 203-c (placement of video cameras in employee restrooms):

Labor Law § 740(7) provides that “the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law.” However, the waiver only applies to causes of action arising out of or relating to the same underlying claim of retaliation … . The Labor Law § 203-c cause of action here asserts the separate and independent claim of illegal placement of video cameras in employee restrooms. Thus, it is not barred by the Labor Law § 740(7) election of remedies provision … . Davis v Duane Reade Inc, 2014 NY Slip Op 06295 2nd Dept 9-24-14

 

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Question of Fact Whether Three-Family Residence Was Owner-Occupied–Administrative Code’s Exemption from Liability for Failure to Remove Ice and Snow May Not Apply

The Second Department determined Supreme Court should not have granted the property owner’s motion for summary judgment in a slip and fall case.  Although the NYC Administrative Code exempts owner-occupied one- two- and three-family residential properties from liability for the failure to remove snow and ice from an abutting sidewalk, the property owner failed to demonstrate the property was owner-occupied:

“Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner” … . However, this liability shifting provision does not apply to the failure to remove snow and ice from the sidewalk of “one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes” (Administrative Code of City of NY § 7-210[b]). The purpose of the exception is to recognize ” the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair'” … .

Here, the defendant property owner … failed to make a prima facie showing that he is entitled to judgment as a matter of law on the theory that he is exempt from liability pursuant to Administrative Code of City of NY § 7-210(b). Although there was evidence that the subject property was a three-family residence, [the owner’s] deposition testimony raises issues of fact as to whether the premises were “owner occupied” within the meaning of Administrative Code § 7-210(b)… . Medina v City of New York, 2014 NY Slip Op 06302, 2nd Dept 9-24-14

 

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Question of Fact Whether Risk of Slipping on a Diving Board Was Increased by Worn Traction Strips

The Second Department determined Supreme Court should not have granted defendant’s motion for summary judgment in a slip and fall case.  Although the assumption of risk doctrine could apply to a slip and fall on a diving board, here the plaintiff alleged the traction strips on the board were unreasonably worn:

Under the doctrine of primary assumption of risk, “by engaging in a sport or recreational activity a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . One “obvious” risk inherent in the recreational activity of diving is the risk of being injured from slipping on the diving board’s surface and falling off the diving board … . In moving for summary judgment dismissing the complaint on the ground that this action was barred by the doctrine of primary assumption of risk, the defendant failed to establish, prima facie, that the allegedly dangerous condition, consisting of the depleted traction strips, did not unreasonably increase the abovementioned risk … . The defendant’s submissions, which included the transcripts of a General Municipal Law § 50-h hearing and the plaintiff’s deposition, demonstrated the existence of a triable issue of fact as to whether the allegedly dangerous condition unreasonably increased that risk … . Freeman v Village of Hempstead, 2014 NY Slip Op 06298, 2nd Dept 9-24-14

 

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The Continuing Treatment Was Not Shown to Relate to the Condition Which Caused the Alleged Injury

The Second Department determined the plaintiffs failed to raise a question of fact about whether the continuing treatment doctrine tolled the statute of limitations.  The medical malpractice action was therefore time-barred:

To establish that the continuous treatment doctrine applies, a plaintiff is ” required to demonstrate that there was a course of treatment, that it was continuous, and that it was in respect to the same condition or complaint underlying the claim of malpractice'” . It is undisputed that the radiology defendants were monitoring the plaintiff Robert Ceglio (hereinafter Robert) for postsurgical changes after he had a pituitary tumor removed. The plaintiffs allege that Robert suffered injuries as a result of a colloid cyst, which the radiology defendants failed to notice on his MRI scans when they were monitoring him for postsurgical changes. However, the plaintiffs presented no evidence to suggest that the colloid cyst, which allegedly caused the injuries complained of, was in any way connected to the pituitary changes for which the radiology defendants were monitoring Robert. Consequently, the plaintiffs failed to raise a question of fact as to whether Robert received continuous treatment for the same condition underlying the claim of malpractice … . Ceglio v BAB Nuclear Radiology PC, 2014 NY Slip Op 06291, 2nd Dept 9-24-14

 

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Dismissal of Complaint Pursuant to CPLR 3211 Appropriate Where Documentary Evidence Flatly Contradicts Allegations in the Complaint

In finding that the defendants were entitled to a dismissal of the complaint for failure to state a cause of action pursuant to CPLR 3211, the Second Department explained the effect of documentary evidence which refutes allegations in the complaint:

“A motion pursuant to CPLR 3211 (a) (1) . . . may appropriately be granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law'” … . On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must “afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “However, factual allegations which are flatly contradicted by the record are not presumed to be true and, [i]f the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a) (7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action'” … .  Coastal Purch Group LLC v JPMCC 2005-CIBC Collins Lodging LLC, 2014 NY Slip Op 06292, 2nd Dept 9-24-14

 

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Fiduciary’s Conflict of Interest Renders Transactions Voidable

The First Department noted the effect of a fiduciary’s conflict of interest upon transactions entered into by the fiduciary:

When a fiduciary has a conflict of interest in entering a transaction and does not disclose that conflict to his/her principal, the transaction is “voidable at the option of” the principal … . Moreover, “an agent cannot bind his principal . . . where he is known to be acting for himself, or to have an adverse interest” … .  Genger v Genger, 2014 NY Slip Op 06248, 1st Dept 9-23-14

 

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Motion to Renew Was Not Based Upon a Change in the Applicable Law—Motion Court Had Simply Ignored the Controlling Precedent—Therefore the Motion Was Actually a Motion to Reargue, the Denial of Which Is Not Appealable

The First Department, in a full-fledged opinion by Justice Tom, determined that defendants’ motion, which was labeled a motion to renew, was actually a motion to reargue, the denial of which is not appealable.  A motion to renew can be based upon a change in the law since the first motion was determined.  However, in this case, the trial judge who denied the original underlying motion, specifically refused to follow the appellate precedent in her department (re: the availability of nonpecuniary damages in a legal malpractice action). Because the underlying law did not change, but rather the law was simply ignored by the trial judge, there was no change in the law which could serve as a basis of a motion to renew. The legal malpractice action stemmed from defense counsel’s failure to raise the speedy trial defense in a criminal matter.  The plaintiff was freed after14 years of imprisonment on the basis of defense counsel’s failure.  D’Alessandro v Carro, 2014 NY Slip Op 06246, 1st Dept 9-18-14

 

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Appellate Court Can Exercise Its Own Discretion Re: Scope of Discovery, Even in the Absence of Abuse

The First Department determined, over a dissent, that Supreme Court had improperly restricted the discovery of software code.  The court explained its power to overrule the trial court in this regard and the underlying principle allowing broad discovery:

New York strongly encourages open and full disclosure as a matter of policy … . To that end, CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.”

A trial court is vested with broad discretion in its supervision of disclosure … . Indeed, “deference is afforded to the trial court’s discretionary determinations regarding disclosure” … . However, “[t]his Court is vested with the power to substitute its own discretion for that of the motion court, even in the absence of abuse” … . We have observed that we “rarely and reluctantly invoke” our power to substitute our own discretion for that of the motion court … . We find that this case presents one of those rare instances in which we are compelled to substitute our discretion for that of the motion court. MSCI Inc v Jacob, 2014 NY Slip Op 06239, 1st Dept 8-18-14

 

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