The Second Department noted that defendant did not present sufficient support for a downward departure based upon his participation in a sex offender treatment program because the defendant did not establish his response to treatment was “exceptional.” People v Tisman, 2014 NY Slip Op 02913, 2nd Detp 4-30-14
The Second Department determined the trial judge’s admonition to defense counsel to confine her opening statement to what she intended to prove did not shift the burden of proof:
Contrary to the defendant’s contention, the Supreme Court’s admonitions to defense counsel to confine her opening statement to what she intended to prove did not shift the burden of proof. The court thoroughly instructed the jury that the defense did not have to make an opening statement, that the burden of proof remained with the People, and that the defendant had no burden … . Furthermore, the court’s comments did not prevent defense counsel from completing her opening statement, or overly restrict her opening statement … . Under the circumstances of this case, there is no realistic view that the court’s remarks could be interpreted so as to skew the burden of proof .. . The court’s remarks were brief, isolated, and innocuous in context … . People v Robles, 2014 NY Slip Op 02960, 2nd Dept 4-30-14
The Second Department reversed Supreme Court and held that the shortened statute of limitations in the insurance policy was enforceable:
“The parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations. Absent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced” … . “Where the party against which an abbreviated Statute of Limitations is sought to be enforced does not demonstrate duress, fraud, or misrepresentation in regard to its agreement to the shortened period, it is assumed that the term was voluntarily agreed to” … .
* * * The plaintiff did not offer evidence that the defendant’s conduct lulled him into inactivity based on a belief that his claim would ultimately be processed, or that he was “induced by fraud, misrepresentation or deception to refrain from commencing a timely action” … . John v State Farm Mut Auto Ins Co, 2014 NY Slip Op 02905, 2nd Dept 4-30-14
The Second Department determined defendant’s motion to vacate his conviction should not have been denied without a hearing on the ground it was untimely. Defendant had raised substantive, supported claims that Brady and Rosario material had not been turned over to him at trial. The Second Department noted there is no time limit for bringing a motion to vacate a conviction pursuant to Criminal Procedure law section 440.10:
…[T]he defendant’s moving papers allege a ground constituting legal basis for the motion, i.e., that “[i]mproper and prejudicial conduct not appearing in the record occurred during a trial resulting in the judgment which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom” (CPL 440.10[f]). The County Court erred in denying the motion on the ground that the defendant unduly delayed making the allegations of Brady and Rosario violations, as “[t]here is no time limit on the filing of CPL 440.10 motions” … . Further, the moving papers were sufficient to establish entitlement to a hearing … . People v Taylor, 2014 NY Slip Op 02964, 2nd Dept 4-30-14
The Second Department determined the insurer was entittled to summary judgment rescinding the life insurance policy based upon the insured’s material misrepresentation. The court explained the operative principles:
“[T]o establish its right to rescind an insurance policy, an insurer must demonstrate that the insured made a material misrepresentation. A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented” (…see Insurance Law § 3105[b]…). Whether a misrepresentation is material is generally a question of fact for the jury … .
“To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, which show that it would not have issued the same policy if the correct information had been disclosed in the application” (…see Insurance Law § 3105[c]…). “[E]ven innocent misrepresentations, if material, are sufficient to allow an insurer to defeat recovery under the insurance contract” … . “[M]aterial misrepresentations . . . if proven, would void the . . . insurance policy ab initio” … .
Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law on its counterclaim for rescission … . In support of its motion, the defendant established, prima facie, that the plaintiffs’ decedent made material misrepresentations in his application for the subject insurance policies. Moreover, the defendant also established, prima facie, that, had it been properly advised, it would not have issued the subject policies.
In opposition to the defendant’s showing of entitlement to judgment as a matter of law on its counterclaim for rescission of the life insurance policies, the plaintiffs failed to raise a triable issue of fact concerning either the decedent’s misrepresentation or the materiality of that misrepresentation … . Smith v Guardian Life In Co of Am, 2014 NY Slip Op 02923, 2nd Dept 4-30-14
The Second Department determined evidence of defendant’s membership in a gang, including expert evidence, was properly admitted in light of defense counsel’s argument defendant had no motive to assault correction officers. People v Murray, 2014 NY Slip Op 02957, 2nd Dept 4-30-14
The Second Department determined that the assignees of no-fault insurance benefits were not entitled to a second chance to appear at a deposition called by the plaintiff. Appearance at the deposition was a condition precedent to the promise to indemnify and the failure to appear was a material breach precluding recovery:
“It is well established that the failure to comply with the standard policy provision requiring disclosure by way of submission to an examination under oath, as often as may be reasonably required, as a condition precedent to performance of the promise to indemnify, constitutes a material breach” of the policy, precluding recovery of the policy proceeds … . In support of that branch of its motion which was for summary judgment, the plaintiff, upon renewal, submitted evidence establishing “that it twice duly demanded an examination under oath” from the assignees, that the assignees twice failed to appear, and that the plaintiff “issued a timely denial of the claims” arising from the assignees’ provision of medical services to the assignors … . Based upon the foregoing, the plaintiff established its prima facie entitlement to judgment as a matter of law … .
In opposition to the plaintiff’s prima facie showing, the assignees failed to submit evidence of a reasonable excuse for their noncompliance with the demands for examinations under oath, or of partial performance on their part … . The assignees also failed to raise a triable issue of fact as to the reasonableness or propriety of the demands for the examinations under oath … . Moreover, “the [assignees’] breach of the policy was not cured by [their] belated expression of a willingness to cooperate which was made more than two years after the loss and only in response to the insurer’s motion for summary judgment” … . “[A]n insurance company is entitled to obtain information promptly while the information is still fresh to enable it to decide upon its obligations and protect against false claims. To permit [the defendants] to give the information more than [two] years after the [loss] would have been a material dilution of the insurance company’s rights” … . IDS Prop Cas Ins Co v Stracar Med Servs PC, 2014 NY Slip Op 02902, 2nd Dept 4-30-14
The Second Department determined unintentional, incidental contact between swimmers in the same swim lane during “free swim” was not actionable:
The doctrine of primary assumption of risk is based on the principle that athletic and recreational activities possess enormous social value, even though they involve significantly heightened risks … . Thus, ” [a] plaintiff is barred from recovery for injuries which occur during voluntary sporting or recreational activities if it is determined that he or she assumed the risk as a matter of law'” … . Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks … . However, by voluntarily engaging in a sport or recreational activity, a participant assumes, or consents to, the commonly appreciated risks that are inherent in and arise out of the activity generally, and which flow from the participation … . An incidental collision or contact between persons confined to a pool lane during a free swim is an inherent risk of the activity … . Rueckert v Cohen, 2014 NY Slip Op 02918, 2nd Dept 4-30-14
The Second Department explained that a driver faced with making a quick decision because another driver has failed to yield the right-of-way is not comparatively negligent:
[The driver of the car in which plaintiff was a passenger] entered the intersection where the collision occurred against a red traffic light, in violation of Vehicle and Traffic Law § 1110(a) …, and that this was the sole proximate cause of the accident. A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law … .
* * * [The other driver’s] deposition testimony that she did not take evasive action in the seconds before impact did not raise a triable issue of fact. “[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” …, and ” was entitled to anticipate that the [other driver] would obey the traffic law requiring [her] to yield'” … . Joaquin v Franco, 2014 NY Slip Op 02904, 2nd Dept 4-30-14
The First Department determined the detective’s urging defendant to make a statement did not render defendant’s statement involuntary:
…[P]rior to administering Miranda warnings, for a period of approximately 20 minutes, [the detective] urged defendant to talk to the police and “gave him several reasons why he should.” The detective properly conveyed to defendant that he knew defendant was involved in the crime, stating “point blank” that the evidence against defendant was strong, including videotape and eyewitness evidence. He urged defendant to take advantage of “your chance” to speak before the other suspects implicated him … . The detective also told defendant that cooperation could be beneficial and that the detective would “call the D.A.” once defendant “put down” his story. After defendant indicated that he wanted to talk, he was read his Miranda rights, waived them, and proceeded to make several written statement and one videotaped statement.There is nothing in the record to indicate that defendant’s will was overborne or that the detective’s preliminary remarks tricked, cajoled or threatened him into waiving his Miranda rights. People v Rutledge, 2014 NY Slip Op 02885, 1st Dept 4-29-14
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