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Codefendant’s Statement Was Admissible—the Fact that the Statement Implicated the Defendant in the Light of Other Trial Evidence Did Not Violate Defendant’s Right of Confrontation

The Third Department determined a co-defendant’s statement, which had been redacted to exclude references to the defendant, was admissible.  The defendant’s argument that the statement implicated him in the light of the trial evidence was rejected:

A defendant’s right to confront witnesses is violated by the admission of “the facially incriminating confession of a nontestifying codefendant” …; however, no such violation occurs where, as here, the codefendant’s statement incriminates the defendant only in light of other evidence produced at trial … . Nor did the use of plural pronouns such as “we” and “they” in the statement necessarily indicate any involvement by defendant … . Accordingly, the statement was admissible, and defendant’s rights under the Confrontation Clause were not violated by the People’s arguments that drew inferences about his participation by linking the statement with other trial evidence … . People v Maschio, 2014 NY Slip Op 03551, 3rd Dept 5-15-14

 

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Purchaser of a Hazardous Waste Treatment, Storage or Disposal Facility Was Not Required to Provide Financial Assurance for the Ongoing Performance of Corrective Action Imposed Upon the Prior Owner

The Third Department, reversing the Department of Environmental Conservation Commissioners ruling below on an issue of first impression, determined the subsequent owner of property formerly used as a permitted hazardous waste treatment, storage or disposal (TSD) facility was not required to provide financial assurance for the ongoing performance of corrective action imposed upon the prior owner.  The decision includes an exhaustive analysis of all the relevant statutes and regulations:

In essence, respondents seek to impose strict liability to provide financial assurance, in perpetuity, on all subsequent owners of property on which a former TSD facility was operated. Had this been the Legislature’s intent, rather than relegate us to a strained analysis of multiple regulations in order to reach that conclusion, it would have done so expressly. Indeed, the Legislature did exactly that in the context of New York’s “Superfund Law,” which requires the owner of an inactive hazardous waste disposal site, and/or any person responsible for the disposal of hazardous wastes at such site, to take remedial action … . Other examples of New York statutes imposing “strict liability” on property owners are the Oil Spill Act (see Navigation Law § 181 [1]) and the Scaffold Law (see Labor Law § 240 [1]). Thus, there can be no doubt that, if the Legislature had intended to impose liability on landowners for providing financial assurance under New York’s version of RCRA —[Resource Conservation and Recovery Act] without regard to whether they had ever operated a TSD facility on the property in question — clear language to that effect could easily have found its place in the statute and regulations. While such a result would not be inconsistent with the laudatory environmental purposes of this regulatory scheme, absent such language, we discern no legal basis for the Commissioner to create such a requirement. To the extent that the Commissioner interpreted the regulations otherwise, such interpretation was arbitrary and capricious and affected by an error of law and we, therefore, annul his determination, as well as the penalties imposed on petitioners.  Matter of Thompson Corners LLC v New York State Dept of Envtl Conservation, 2014 NY Slip Op 03556, 3rd Dept 5-15-14

 

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Derivative Neglect Finding Reversed—Operative Principles Explained

The Third Department reversed Family Court, finding the evidence insufficient to support an allegation of derivative neglect. The theory below was that the alleged abuse of one child, Dominick, was serious enough to warrant a finding of derivative neglect with respect to a child (Brad) who had not been born at the time of the alleged neglect of Dominick.  In the course of the decision, the court explained the operative principles:

Pursuant to Family Ct Act § 1046 (a) (i), “proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the respondent.” However, “[e]vidence of neglect of one child typically may not serve as the sole basis for a finding of neglect [of another child, unless] the nature of the direct [neglect], notably its duration [and] the circumstances surrounding its commission[,] . . . evidence[s] fundamental flaws in the respondent’s understanding of the duties of parenthood” … . — flaws that are “so profound as to place any child in his or her care at substantial risk of harm” … . Contrary to the father’s assertion, petitioner’s failure to commence a direct neglect proceeding against him with respect to Dominick does not bar petitioner from maintaining this derivative neglect proceeding against him with respect to Brad. Similarly, the fact that Brad had yet to even be conceived — much less born — at the time of the home invasion or the search of the father’s residence is not dispositive, as the relevant inquiry is whether the evidence of the direct neglect of one child, i.e., Dominick, “is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists” … . Matter of Brad I (Tiana K), 2014 NY Slip Op 03555, 3rd Dept 5-15-14

 

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Ambiguous Terms Interpreted to Give Meaning to All Terms—Here Water Damage Caused By Plumbing Backup Originating in Building Was Covered—Water Damage Caused By Plumbing Backup Originating Outside the Building Was Not Covered

The Third Department determined ambiguous terms in an insurance policy concerning whether water backing up through plumbing to cause damage was excluded were properly interpreted by Supreme Court. The ambiguous terms were interpreted to mean that damage from water backing up caused by a problem within the buildings own plumbing is covered, but similar damage caused by a backup originating outside the building (a municipal sewer system, for example) was not covered:

Where an insurer relies on an exclusion to avoid coverage, it has the burden of demonstrating “that the exclusion is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case” … . Moreover, we are “obligat[ed] to interpret the exclusion in a manner that gives full force and effect to the policy language and does not render a portion of the provision meaningless” … . “While [u]nambiguous provisions of a policy are given their plain and ordinary meaning, where policy language is unclear or subject to multiple reasonable interpretations, such ambiguities are resolved against the insurer” … .

In our view, when the exclusion and coverage provisions at issue here are read together, an ambiguity exists in the insurance policy as to losses resulting from a backup and/or overflow from sewers, drains and/or plumbing systems. Although the resolution of this ambiguity appears to be an issue of first impression in this state, Supreme Court’s analysis — that a plumbing system, as referenced in the coverage provision, includes drains that are on the insured’s property — is consistent with decisions in other jurisdictions that have interpreted the interplay of competing provisions similar to those in question here … . Pichel v Dryden Mut Ins Co 2014 NY Slip Op 03575, 3rd Dept 5-15-14

 

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Damage to Building Caused by Faulty Workmanship Not Caused by an “Occurrence” Within the Meaning of a Commercial General Liability Policy

The First Department, in a full-fledged opinion by Justice Saxe, determined that the term “occurrence” in a policy covering building construction work did not encompass damage to the building caused by faulty workmanship.  Here, a portion of an exterior wall fell to the street.  It was determined that the cause was flaws in the way the wall was constructed:

There is no “occurrence” under a commercial general liability policy where faulty construction only damages the insured’s own work …, and faulty workmanship by subcontractors hired by the insured does not constitute covered property damage caused by an “occurrence” for purposes of coverage under commercial liability insurance policies issued to the general contractor, since the entire project is the general contractor’s work … . In Baker Residential v Travelers Ins. Co. (10 AD3d 586, 587 [1st Dept 2004]), where a developer delivered and installed defective structural beams that deteriorated from water penetration due to improper installation, flashing and waterproofing, this Court held that the damages sought by the developer did not arise from an “occurrence” resulting in damage to third-party property distinct from the developers’ own “work product.” And in Direct Travel v Aetna Cas. & Sur. Co., 214 AD2d 484, 485 [1st Dept 1995]), this Court explained that “[s]ince the claims asserted in the underlying action were for economic loss resulting from the plaintiff’s purported breach of contract, coverage was also properly disclaimed under the umbrella policy which covered only damages because of bodily injury’ [or] property damage’ . . . [c]aused by an occurrence'” … . * * *

“[T]he requirement of a fortuitous loss is a necessary element of insurance policies based on either an accident’ or occurrence'” … . As the motion court recognized, the addition of “event” or “happening” to the definition of “occurrence” did not alter the legal requirement that the “occurrence” triggering the coverage must be fortuitous. “[T]he requirement of a fortuitous loss is a necessary element of insurance policies based on either an accident’ or occurrence'” … . “[A] claim for faulty workmanship, in and of itself, is not an occurrence under a commercial general liability policy because a failure of workmanship does not involve the fortuity required to constitute an accident” … . National Union Fire Ins Co of Pittsburgh PA v Turner Constr Co, 2014 NY Slip Op 03671, 1st Dept 5-15-14

 

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City Administrative Code Provision Requiring a Building Owner to Maintain and Be Responsible for the Safe Condition of a Building Is Not Specific Enough to Form the Basis of Negligence Cause of Action

The Second Department determined plaintiffs did not raise a question of fact on a premises liability cause of action based upon alleged city administrative code violations, but did raise a question of fact concerning the building owner’s common law negligence.  Infant plaintiff fell over a railing on a landing to a set of stairs outside of the apartment building:

Administrative Code §§ 27-375 and 27-376 do not apply to the subject exterior stairs because the stairs were not [*2]”used as exits in lieu of interior stairs” (Administrative Code § 27-376…). “Exit” is defined by the Administrative Code as a “means of egress from the interior of a building to an open exterior space” (Administrative Code of City of NY § 27-232). The stairway was outside the parameters of the building and did not provide a means of egress from the interior of the building to an open exterior space … . Moreover, the plaintiffs’ contention that the stairs violated Administrative Code §§ 27-127 and 27-128 is without merit. Those sections “merely require that the owner of a building maintain and be responsible for its safe condition,” and do not constitute a sufficiently specific statutory predicate for liability … . In addition, Administrative Code § 17-123, which concerns window guards, is inapplicable to the facts of this case. Friedman v 1953 Realty Co, 2014 NY Slip Op 03480, 2nd Dept 5-14-14

 

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Equitable Subrogation in the Context of Funds from One Mortgage Loan Used to Pay Off Another Explained

The Second Department explained the doctrine of equitable subrogation. Plaintiff had given two valid mortgages to one bank, and another bank subsequently used a portion of the proceeds of its loan to satisfy those mortgages:

Under the doctrine of equitable subrogation, where the “property of one person is used in discharging an obligation owed by another or a lien upon the property of another, under such circumstances that the other would be unjustly enriched by the retention of the benefit thus conferred, the former is entitled to be subrogated to the position of the obligee or lien-holder” … . Harris v Thompson, 2014 NY Slip Op 03487, 2nd Dept 5-14-14

 

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Defendants Who Struck Plaintiff’s Vehicle When Plaintiff Pulled Out of a Parking Lot Entitled to Summary Judgment

The Second Department determined summary judgment had been properly granted to the defendants (“Dunn defendants”).  The defendant driver had the right of way and struck plaintiff’s vehicle when plaintiff pulled out of a parking lot.  The court explained the operative principles:

There can be more than one proximate cause of an accident and, thus, on their motion for summary judgment, the Dunn defendants had the burden of establishing freedom from comparative negligence … . While a driver is required to “see that which through proper use of [his or her] senses [he or she] should have seen” …, a driver who has the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield to the driver with the right-of-way… .. In addition, “a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” … .

Here, the Dunn defendants established their prima facie entitlement to judgment as a matter of law by establishing that the injured plaintiff failed to yield the right-of-way to the Dunn vehicle, which was legally proceeding westbound on Montauk Highway with the right-of-way, and that Danielle Costella Dunn was free from comparative negligence since she had only had seconds to react … . Kenda v Dunn 2014 NY Slip Op 03494, 2nd Dept 5-14-14

 

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Tenants Not Compelled to Bring a Plenary Action to Enforce a Fair Market Rent Appeal Award Because They Withheld Rent Until the Principal Balance of the Award Was Fully Credited to Them—Therefore Tenants Were Not Entitled to Prejudgment Interest Pursuant to CPLR 5001 (a)

The Second Department determined tenants who had been awarded a rent refund in a fair market rent appeal (FMRA) were not entitled to pre-judgment interest on the award.  The tenants had exercised their right under the Rent Stabilization Code to withhold rent until the principal balance of the FMRA award was fully credited.  Therefore, the tenants did not need to start a plenary action for prejudgment interest pursuant to CPLR 5001 (a) because there was no principal balance owing them:

“A tenant compelled to bring a plenary action to enforce a fair market rent appeal order is entitled to . . . prejudgment interest under CPLR 5001(a) computed from the date of the Rent Administrator’s order … ” … . However, where a tenant is not otherwise compelled to commence an action to enforce a fair market rent appeal award, the tenant is not entitled to recover interest on the award … . Prior to the commencement of this action, the plaintiffs exercised their right under the relevant provision of the Rent Stabilization Code (see 9 NYCRR 2522.3[d][1]) to withhold payment of rent until the principal balance of the FMRA award was fully credited to their account. The FMRA award was fully credited to the plaintiffs’ account by June 2007, after which the plaintiffs resumed paying rent. Thus, contrary to the plaintiffs’ allegations, there was no principal balance of the FMRA award due and owing to them. Under these circumstances, the plaintiffs were not compelled to commence this action to enforce their FMRA award. Thus, the plaintiffs are not entitled to the relief they sought in the complaint, including the alleged principal balance, prejudgment interest, or an award of an attorney’s fee. Eisner v M & E Rubin LLC, 2014 NY Slip Op 03477, 2nd Dept 5-14-1

 

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Question of Fact Whether Snow Removal Efforts Created or Exacerbated Icy Condition

The Second Department determined summary judgment should not have been granted in favor of the property owner in a slip and fall case.  The plaintiff slipped on ice on metal vault doors in the sidewalk in front of defendants’ restaurant.  The defendants failed to demonstrate that their snow removal efforts did not create or exacerbate the condition:

A property owner that elects to engage in snow removal activities must act with reasonable care so as to avoid creating a hazardous condition or exacerbating a natural hazard created by a storm … . Contrary to the defendants’ contention, they failed to demonstrate their prima facie entitlement to judgment as a matter of law, as they failed to establish that the snow removal efforts that were undertaken prior to the accident neither created nor exacerbated the allegedly hazardous icy condition which caused the plaintiff to fall.. . Gwinn v Christina’s Polish Rest Inc, 2014 NY Slip Op 03485, 2nd Dept 5-14-14

 

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