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Not Enough Time Passed to Invoke Constructive Notice of Icy Condition Under “Storm Progress Rule”

The Second Department reversed Supreme Court and granted summary judgment to the defendant in a slip and fall case. The court determined not enough time elapsed to invoke constructive notice of the icy condition under the “storm progress rule:”

“A defendant may be held liable for a dangerous condition on its premises caused by the accumulation of snow or ice upon a showing that it had actual or constructive notice of the condition, and that a reasonably sufficient time had lapsed since the cessation of the storm to take protective measures” … . “Under the storm in progress’ rule, a property owner will not be held liable for accidents occurring as a result of the accumulation of snow or ice on its premises until an adequate period of time has passed following the cessation of the storm, within which time the owner has the opportunity to ameliorate the hazards caused by the storm” … . McCurdy v KYMA Holdings, LLC, 2013 NY Slip Op 05802, 2nd Dept 9-11-13

 

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Question of Fact Raised About Whether Snow-Removal Contractor Created or Exacerbated the Dangerous Condition

The Second Department affirmed the denial of summary judgment to a snow-removal contractor (SCS) in a slip and fall case.  The plaintiff fell on a mound of snow between the street and a sidewalk. The court explained:

A contractor may be held liable for injuries to a third party where, in undertaking to render services, the contractor entirely displaces the duty of the property owner to maintain the premises in a safe condition, the injured party relies on the contractor’s continued performance under the agreement, or the contractor negligently creates or exacerbates a dangerous condition … . SCS demonstrated its prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against it … by demonstrating that the injured plaintiff was not a party to the snow and ice removal contract, and that it did not owe a duty to him … . In opposition, however, the plaintiffs raised a triable issue of fact as to whether SCS’s alleged negligence created or exacerbated the hazard which was a proximate cause of the accident… . LaGuarina v Metropolitan Trans Auth, 2013 NY Slip Op 05800, 2nd Dept 9-11-13

 

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No Demonstrated Connection Between Stair-Related Code Violations and Injury

In affirming the grant of summary judgment to the defendant in a slip and fall case, the Second Department noted that there was evidence the step risers and tread did not meet code requirements, but there was insufficient evidence connecting the defect with the accident:

The defendants made a prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff was unable to identify the cause of her fall … . In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff submitted expert evidence that the step risers and treads did not comply with various sections of, inter alia, the New York City Building Code. However, the plaintiff’s assertion that these alleged stairway defects proximately caused her accident is based on sheer speculation …, and is, in fact, contradicted by the record. Humphrey v Merivil, 2013 NY Slip Op 05799, 2nd Dept 9-11-13

 

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Proximate Cause Can Not Be Based Upon Speculation; Many Possible Causes

In affirming the grant of summary judgment to the defendant, the Second Department explained that, although proximate cause can be established by circumstantial evidence, it cannot be based on speculation:

“Proximate cause may be established without direct evidence of causation, by inference from the circumstances of the accident; however, mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action”.. . Belousov v Warnock, 2013 NY Slip Op 05787, 2nd Dept 9-11-13

 

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Error to Exclude Petitioner from Arbitration Proceeding

Although the First Department determined the error was harmless, the court noted that petitioner should not have been excluded from an arbitration proceedings concerning the termination of her employment:

The arbitrator exceeded the scope of his authority by excluding petitioner from certain portions of the arbitration proceedings, over her objection, in violation of Rule 23 of the American Arbitration Association’s Commercial Arbitration Rules  (see CPLR 7511[b][iii]…).

The exclusion of petitioner from approximately 5% of the proceedings was, however, harmless error, since the result would have been the same had she been present. Petitioner’s case rested on her argument that respondents’ reasons for terminating her were merely a pretext to avoid paying her what she believed would be very high commissions. Since the evidence presented during petitioner’s absences from the proceedings had no bearing on that issue, there is no basis for vacating the arbitrator’s finding that petitioner was fired for her repeated, and severe, violations of the conflict of interest provisions of her contract, as well as for her threats against her employer… . Caruso v Viridian Network, LLC, 2013 NY Slip Op 05780, 1st Dept 9-10-13

 

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Student Who Had Been Expelled Could Bring Plenary Complaint Against School, in Addition to an Article 78 Proceeding

In a full-fledged opinion by Justice Andrias, the First Department determined that a dental student who had been expelled in a disciplinary action could bring both an article 78 proceeding and a plenary action for damages against the school. The court went through each cause of action in the complaint and allowed a few, including sex discrimination claims, to go forward. (In a previous appeal the article 78 petition re: the expulsion had been granted, finding that expulsion was too severe a penalty.):

“Judicial review of an academic institution’s disciplinary determinations is limited to whether it substantially adhered to its own published rules and guidelines and whether the determinations are based on a rational interpretation of the relevant evidence” … . Thus, to the extent plaintiff’s causes of action are, in essence, a challenge to the determination to expel her, she was only entitled to article 78 review …, and the filing of the article 78 proceeding mandated the dismissal of the plenary action insofar as it raised such claims … . Conversely, to the extent the gravamen of plaintiff’s causes of action is not a challenge to the decision to expel her and is not duplicative of the petition’s allegations, she is not limited to article 78 review and may seek damages in a plenary action … . Kickertz v New York Univ, 2013 NY Slip Op 05781, 1st Dept 9-10-13

 

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Certificates of Bond Insurance Are Insurance Policies to Be Interpreted Under Insurance and Contract Law—Restructuring in Bankruptcy and Reduction of Value of the Bonds Did Not Affect the Insurer’s Obligation to Cover the Bond Payments

In a full-fledged opinion by Justice Gische, the First Department determined the defendant, which issued certificates of bond insurance (CBI’s) insuring bonds against nonpayment, was obligated to cover payment on the bonds even after a bankruptcy restructuring in which the bonds were revalued:

Defendant acknowledges that it would have been contractually obligated to pay for any loss suffered by plaintiffs under the original bonds when they matured, in the event of the issuer’s bankruptcy, but it claims that as a result of the Restructuring Plan that was adopted, the original bonds were cancelled, completely relieving it of any obligation to pay under the CBIs. The court rejects this position because it is inconsistent with the terms of the policies and contrary to law.

The CBIs are financial guaranty insurance policies, which defendant is specially licensed to sell throughout the United States, including New York. …The policies are primarily governed by Article 69 of the Insurance Law. While they have some unique characteristics, they are generally subject to the same laws and principles underlying insurance policies in general (see Insurance Law § 6908). Thus, CBIs are policies of insurance that should be analyzed in accordance with general principles of contract interpretation and insurance law … .

Insurance policies are to be afforded their plain and ordinary meaning and interpreted in accordance with the reasonable expectations of the insured party… . Exclusions from policy obligations must be in clear and unmistakable language …, and if the terms of a policy are ambiguous, any ambiguity must be construed in favor of the insured and against the insurer … . …

The plain meaning of the contractual language contained in the CBI requires defendant to absolutely and unconditionally guarantee payment on the individual bonds in the event of the issuer’s nonpayment. Issuer insolvency is clearly a covered risk, as is bankruptcy, which is a societal hallmark of insolvency. These are the very risks for which defendant received payment of premiums. The CBIs were noncancellable, with a narrow exception not applicable here, and did not provide for any exclusion in the event of bankruptcy. … The restructuring occurred only after the default under the trust agreement had occurred. Confirmation of the restructuring plan made it a certainty that the issuer would not make any future payments to plaintiffs on the original bonds at their respective maturity dates. It is the restructuring of the bonds and their reissuance in a lower principal amount with a longer payment period that concretely represents that plaintiffs have sustained a loss. Neither the restructuring plan, nor the issuer’s discharge of debt in the bankruptcy proceeding, changed the obligations under the parties’ contracts of insurance. Oppenheimeer AMT-Free Municipals v ACA Fin. Guar. Corp., 2013 NY Slip Op 05768, 1st Dept 9-3-13

 

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A Contract Between a Hospital and a Security Company Was Not Invalidated by the Failure to Spell Out the Duties of the Security Personnel—Missing Element Filled in by Conduct; Interplay of Contract and Tort Liability to Third Parties Discussed

The First Department, in a full-fledged opinion by Justice Renwick, determined a security company (Burns), which had contracted to provide security at a psychiatric hospital (RUMC), was not liable, under contract or tort, to the family of a patient who escaped from the facility, engaged in a gun battle with police, and was killed. The opinion includes good discussions of contract liability to third parties versus tort liability to third parties. and the potential availability of contribution among joint tortfeasors that may apply even where no contractual or tort duty exists.  The First Department determined the contractual exclusion of liability to third parties was valid, the security company owed no duty to the plaintiff in tort, and contribution did not apply.  The central point of the opinion was that a security contract can be enforceable even if the precise duties of the security personnel are not spelled out in the contract. The missing element was not deemed essential and could be filled in by conduct:

…[C]ourts have consistently held that “where [as here] it is clear from the language of an agreement that the parties intended to be bound and there exists an objective method for supplying a missing term, the court should endeavor to hold the parties to their bargain”… . Under such circumstances, “[s]triking down a contract as indefinite and in essence meaningless is at best a last resort” …  .

In this case, there is a clear method for supplying the missing term, the parties’ course of conduct; all other terms were adopted directly from the written agreement. Thus, the only thing that was absent in this contract was a writing evincing the particulars of a non essential provision, which was later filled in by the parties’ mutual consent and course of conduct.  Aiello v Burns Intl. Sec. Servs. Corp., 2013 NY Slip Op 05767, 1st Dept 9-3-13

 

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Temporary Maintenance Award Not Waived by Prenuptial Agreement Waiving Only the Final Award of Alimony or Maintenance

The First Department held that Supreme Court properly awarded temporary maintenance to the wife (defendant) even though the wife waived alimony and maintenance in the prenuptial agreement:

We reject plaintiff’s argument that defendant waived temporary maintenance in the parties’ prenuptial agreement. Notwithstanding that defendant waived any claim to a final award of alimony or maintenance in the prenuptial agreement, the court was entitled, in its discretion, to award pendente lite relief in the absence of an express agreement to exclude an award of temporary maintenance… . Lennox v Weberman, 2013 NY Slip Op 05766, 1st Dept 9-3-13

 

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Death Threats Not Protected Under First Amendment; Hearsay May Be Basis of Administrative Determination

In affirming the arbitrator’s recommendation a teacher should be terminated for making death threats against an arbitrator in a prior disciplinary proceeding, the First Department noted that hearsay can be the basis for an administrative determination and explained the threats were not protected by the First Amendment:

We reject petitioner’s allegations that the instant disciplinary proceeding and the ultimate discipline imposed against him violated the right to free speech under the First Amendment to the United States Constitution. Supreme Court properly deferred to the arbitrator’s finding that petitioner’s statements are exempt from First Amendment protection because they constitute “true threats.” We note that petitioner’s former attorney only disclosed the threats because he believed that petitioner’s increasingly erratic behavior rendered him genuinely dangerous. Under the circumstances, it cannot be argued that petitioner’s speech implicates matters of public concern … . Nor can it be disputed that petitioner’s death threats disrupted the initial arbitration proceeding… . Matter of Smith v New York City Dept. of Educ., 2013 NY Slip Op 05765, 1st Dept 9-3-13

 

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