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General Permit for Municipal Storm Water Discharge Does Not Violate Federal or State Law

The Second Department reversed Supreme Court’s determination that a general permit issued by the NYS  Department of Environmental Conservation (DEC) to municipalities for storm water discharge violated federal and state law.  One of the principle objections to the general permit was that it did not ensure municipalities would set appropriate limits on storm water pollutants.  The decision is very detailed and cannot be briefly summarized here:

The petition organized the alleged violations of state and federal law into four general groups, asserting that:

(1) the General Permit failed to ensure that small municipalities reduced their pollutant discharges to the maximum extent practicable, in violation of 33 USC § 1342(p)(3)(B)(iii) and ECL 17-0808(3)(c);

(2) the General Permit failed to ensure that small municipalities complied with state water quality standards, in violation of ECL 17-0811(5) and ECL 17-0813;

(3) the General Permit failed to ensure that small municipalities monitored their storm water discharges, in violation of 33 USC § 1318(a) and ECL 17-0815(8); and

(4) the General Permit did not provide for public participation in the permit process, in violation of 33 USC §§ 1251(e), 1342(a)(1), and 1342(j), and ECL 17-0805(1)(a)(ix). * * *

The General Permit at issue on this appeal is consistent with the scheme for general permits envisioned by the EPA, and is designed to meet the maximum extent practicable standard prescribed by 33 USC § 1342(p)(3)(B)(iii) and ECL 17-0808(3)(c). The General Permit requires entities seeking coverage to “develop, implement and enforce” a stormwater management plan designed to address pollutants of concern and “reduce the discharge of pollutants from the small MS4” to the maximum extent practicable, so as “to protect water quality, and to satisfy the appropriate water quality requirements of the ECL and the Clean Water Act” (see General Permit at 14, 95). A stormwater management plan must, inter alia, identify and describe the chosen best management practices and include measurable goals for each such practice (see General Permit at 95). The General Permit provides applicants with resources, including examples of successful stormwater management plans, a “menu” of best management practices, and suggested measurable goals (see General Permit at 95).  Matter of Natural Resources Defense Council Inc New York State Dept of Envtl Conservation, 2014 NY Slip Op 06090, 2nd Dept 9-10-14

 

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Driver of Lead Vehicle Entitled to Summary Judgment in Rear-End Collision Case

The Second Department determined that the defendant driver who was struck from behind was entitled to summary judgment.  The court explained the relevant law, noting that the bare allegation the lead vehicle stopped short is not enough to raise a question of fact about the negligence of the lead driver:

“A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle” … . “As a general rule, a rear-end collision establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision'” … . This is true whether the lead vehicle is stopped or stopping … .

Where the movant has established his or her entitlement to judgment as a matter of law, the burden shifts to the opposing party to provide sufficient evidence to raise a triable issue of fact as to the moving party’s comparative fault … . A bare allegation that the lead vehicle stopped short is insufficient to rebut the inference of negligence on the part of the driver of the following vehicle … . Billis v Tunjian, 2014 NY Slip Op 06044, 2nd Dept 9-10-14

 

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Language of Exclusion from Coverage, Including the Phrase “Arising Out Of” Was Not Ambiguous—Insurer Was Not Obligated to Defend or Indemnify Defendants

The Second Department determined the insurance policy unambiguously excluded coverage for actions stemming from the taking of property (eminent domain) and, therefore, the insurer was not obligated to defend or indemnify the defendants:

The plaintiff is an insurance carrier that insured the Village and its officials for claims arising from public officials’ wrongful acts. However, the relevant insurance policy contained an exclusion for “[a]ny injury or damage arising out of or resulting from a taking that involves or is in any way related to the principles of eminent domain, inverse condemnation . . . or dedication by adverse use or by whatever name used.”  * * *

An insurer’s contractual duty to defend is liberally construed, and is broader than the duty to indemnify … . The duty to defend ” arises whenever the allegations in a complaint state a cause of action that gives rise to the reasonable possibility of recovery under the policy'” … . “The duty to defend is not triggered, however, when the only interpretation of the allegations against the insured is that the factual predicate for the claim falls wholly within a policy exclusion” … .

Policy exclusions “are subject to strict construction and must be read narrowly” …, and any ambiguities in the insurance policy are to be construed against the insurer … . However, unambiguous provisions of insurance contracts will be given their “plain and ordinary” meaning … .

In the context of a policy exclusion, the phrase “arising out of” is unambiguous, and is interpreted broadly to mean “originating from, incident to, or having connection with” … . A “but-for” test applies to determine the applicability of an “arising out of” exclusion … . In other words, if the plaintiff in an underlying action or proceeding alleges the existence of facts clearly falling within such an exclusion, and none of the causes of action that he or she asserts could exist but for the existence of the excluded activity or state of affairs, the insurer is under no obligation to defend the action … .

Here, the plaintiff established its prima facie entitlement to judgment as a matter of law by demonstrating that the remaining claims asserted by the … defendants in the underlying federal and state-court matters all arose out of “a taking that involves or is in any way related to the principles of eminent domain, inverse condemnation . . . or dedication,” a situation that is specifically excluded from coverage by the clear and unambiguous language of the policy … . Scottsdale Indem Co v Beckerman, 2014 NY Slip Op 06071, 2nd Dept 9-10-14

 

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Denial of Variance Reversed–Criteria Explained

The Second Department determined that the zoning board’s denial of an application for a variance was arbitrary and capricious:

In determining whether to grant an area variance, a zoning board of appeals is required to engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted (see Village Law § 7-712-b[3][b]…). A zoning board must also consider “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance” (Village Law § 7-712-b[3][b]).

Here, although there was some support in the record for the conclusions of the Board of Zoning Appeals of the Incorporated Village of Muttontown (hereinafter the Board) that the petitioners’ difficulty was self-created, and that the requested lot-depth variance was substantial, there was no evidence that granting the variance would produce an undesirable change in the character of the neighborhood, adversely impact on physical and environmental conditions, or otherwise result in a detriment to the health, safety, and welfare of the neighborhood or community … . Matter of Quintana v Board of Zoning Appeals of Inc Vil of Muttontown, 2014 NY Slip Op 06092, 2nd Dept 9-10-14

 

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Probation Department’s Unauthorized Taking of DNA Evidence Required Suppression/Inevitable Discovery Doctrine Applied to Deny Suppression of Identification Evidence and Defendant’s Statement

The Second Department determined the unauthorized taking of a buccal swap from a probationer for DNA testing required suppression of the DNA evidence.  The fact that the defendant was on probation did not strip the defendant of his Fourth Amendment rights.  However, because another DNA sample had been properly taken from the defendant a few days before, the identification evidence and defendant’s statement should not have been suppressed pursuant to the inevitable discovery doctrine:

The hearing court properly suppressed DNA evidence as tainted since the Nassau County Probation Department (hereinafter the Probation Department) took an unauthorized buccal swab from the defendant, which was a bodily intrusion subject to the constraints of the Fourth Amendment … . * * * The defendant’s status as a probationer did not “justify departures from the customary constitutional standards that apply in other settings” …, where, as here, it is undisputed that the provision of a DNA sample was not a condition of the defendant’s probation under any statutory or judicial authority. Moreover, since the DNA sample taken from the defendant implicated his constitutional rights, we reject the People’s argument that the Probation Department, in taking the unauthorized buccal swab, only committed a statutory violation that did not warrant suppression of evidence … .

The record reveals that an authorized DNA sample was taken from the defendant in connection with another, unrelated charge only days before he was arrested on the charges at issue on this appeal. Since another DNA sample had been taken from the defendant prior to his arrest, the People established a very high degree of probability that the evidence in question would have been obtained independently of the tainted source during the normal course of police investigation … . Accordingly, the hearing court should not have suppressed the identification evidence and the defendant’s statement to the police.  People v Adams, 2014 NY Slip Op 06098, 2nd Dept 9-10-14

 

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Defendants Entitled to Summary Judgment in Slip and Fall Case Under the Storm in Progress Rule

The Second Department determined defendants demonstrated they were entitled to summary judgment in a slip and fall case pursuant to the “storm in progress” rule:

A defendant moving for summary judgment in an action predicated upon the presence of snow or ice has the burden of establishing, prima facie, that it neither created the snow and ice condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of that condition … . “Under the storm in progress’ rule, a property owner will not be held responsible for accidents caused by snow or ice that accumulates on its premises during a storm until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm'” … . “However, once a property owner elects to engage in snow removal activities, the owner must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by the storm” … .

Here, the evidence submitted by the defendants in support of their motion for summary judgment, including certified climatological data and transcripts of the deposition testimony of the parties, demonstrated, prima facie, that a storm was in progress at the time of the accident … . Furthermore, the defendants established, prima facie, that their efforts to remove snow and ice from the platform did not create a hazardous condition or exacerbate the natural hazard created by the storm … . Talamas v Metropolitan Transp Auth, 2014 NY Slip Op 06196, 2nd Dept 9-17-14

 

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“Temporary Substitute Vehicle” Not Excluded from Supplemental Uninsured/Underinsured Motorist Policy

The Second Department determined that the language of the policy did not exclude the driver (O’Brien) of a “temporary substitute” vehicle from coverage under the supplemental uninsured/underinsured motorist (SUM) policy.  O’Brien, an auto mechanic, was injured when returning a customer’s “loaner” car to the dealer (at the customer’s request). O’Brien was named as an additional driver on the loaner vehicle agreement:

“Generally, it is for the insured to establish coverage and for the insurer to prove that an exclusion in the policy applies to defeat coverage” … . Whether the burden of proof rests on the insured to establish coverage, or on the insurer to establish an exclusion, rests on the language of the policy (see id. ). “Where the provisions of the policy are clear and unambiguous, they must be given their plain and ordinary meaning, and courts should refrain from rewriting the agreement. The policy must, of course, be construed in favor of the insured, and ambiguities, if any, are to be resolved in the insured’s favor and against the insurer” … .

Here, State Farm bears the burden of establishing that O’Brien’s use of a “substitute temporary car” was excluded from SUM benefits. The opening language of the SUM endorsement states: “This endorsement is a part of the policy. Except for the changes it makes, all other provisions of the policy remain the same and apply to this endorsement.” Moreover, the opening language of the policy states: “We define certain words and phrases below for use throughout the policy. Each coverage includes additional definitions only for use with that coverage.” The general definition section includes a definition of “temporary substitute car,” which is to be applied throughout the policy: “Temporary Substitute Car means a car that is in the lawful possession of the person operating it and that: 1. replaces your car for a short time while your car is out of use due to its: a. breakdown; b. servicing; c. repair; d. loss; or e. destruction; and 2. neither you nor the person operating it own or have registered.”

This Court has held that the purpose of a provision relating to a “temporary substitute” vehicle “is to afford continuous coverage to the insured during the period that a vehicle scheduled under the policy is out of commission, and at the same time limit the risk to the insurer to one operating vehicle at a time for a single, fair premium. Coverage for a substitute vehicle ceases when the insured vehicle is repaired and returned to its owner” … . Here, the SUM endorsement fails to articulate any exclusion for a “temporary substitute car.” Matter of State Farm Mut Auto Ins Co v O’Brien, 2014 NY Slip Op 06096, 2nd Dept 9-10-14

 

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Insurer Estopped (pursuant to Insurance Law 3420) from Disclaiming Coverage Re: Previously Incurred Defense Costs in a Personal Injury Action

The Second Department determined Insurance Law 3420(d)(2) applied and the insurer, Rutgers Casualty, was estopped from disclaiming coverage for previously incurred defense costs in connection with an underlying personal injury action:

Pursuant to Insurance Law § 3420(d), an insurance carrier is required to provide its insured and any other claimant with timely notice of its disclaimer or denial of coverage on the basis of a policy exclusion, and will be estopped from disclaiming liability or denying coverage if it fails to do so … . Although Insurance Law § 3420(d)(2) does not apply if the underlying claim does not involve death or bodily injury …, contrary to Rutgers Casualty’s contention, this provision is applicable where, as here, the coverage the defendant seeks to disclaim is for defense costs incurred in connection with an underlying personal injury action. Accordingly, the plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law, inter alia, declaring that Rutgers Casualty was estopped from disclaiming insurance coverage under the Policy by submitting evidence that it failed to provide a timely written notice of this disclaimer to Key Fat, a claimant in this litigation … . In opposition, Rutgers Casualty failed to raise a triable issue of fact.  Key Fat Corp vs Rutgers Cas Ins Co, 2014 NY Slip Op 06060, 2nd Dept 9-10-14

 

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Arbitrator’s Award Which Did Not Resolve the Controversy Properly Vacated

The Second Department held the arbitrator’s award was properly vacated because it was neither final nor definite and failed to determined damages.  The petitioner was injured while riding in respondent-county’s bus:

Although judicial review of arbitration awards is limited …, an award will be vacated when the arbitrator making the award “so imperfectly executed it that a final and definite award upon the subject matter submitted was not made” (CPLR 7511[b][1][iii]…). An award will be vacated as indefinite or nonfinal for purposes of CPLR 7511 if it does not “dispose of a particular issue raised by the parties” …, or ” if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or if it creates a new controversy'” … .

Here, the arbitrator’s award was neither definite nor final, as it failed to resolve the controversy submitted, to wit, the negligence of each party and the amount of damages, if any. The arbitrator did not make any specific findings of fact or credibility or dispose of the issues raised by the parties. Instead, the arbitrator pointed to a fact not in dispute—that the petitioner was not wearing a seatbelt—and determined that he did not need to decide whether the County was negligent. In doing so, the arbitrator failed to dispose of the controversy with which he had been charged … .

Moreover, the arbitrator also failed to determine damages and instead referred to the parties’ agreement, to which he was not privy, and awarded the petitioner “the low” sum of damages, despite finding that the petitioner was barred from recovering any damages … .  Matter of Andrews v County of Rockland, 2014 NY Slip Op 06078, 2nd Dept 9-10-14

 

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60-Day Rule Did Not Apply—Failure to Submit Proposed Order Within 60 Days Did Not Constitute Abandonment of the Claim

The Second Department determined the 60-day rule with respect to the submission of orders did not apply:

22 NYCRR 202.48, entitled “[s]ubmission of orders, judgments and decrees for signature,” states in pertinent part:

“(a) Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted.

“(b) Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown.”

Here, the so-called 60-day rule set forth in 22 NYCRR 202.48 is not applicable because the Supreme Court’s direction that the defendants submit a proposed order with respect to an award of an attorney’s fee did not specify that the proposed order be settled or submitted on notice … . Accordingly, the plaintiff’s contention that the defendants abandoned their claim for an award of an attorney’s fee by failing to comply with the 60-day rule is without merit. 47 Thames Realty LLC v Robinson, 2014 NY Slip Op 06051, 2nd Dept 9-10-14

 

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