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Fact that Driver’s Negligence Was Deemed “Sole Proximate Cause” of Passenger’s Injury Did Not Warrant the Dismissal of Claims Against the Other Driver Involved in the Collision

The plaintiff was a passenger in a car which was involved in an accident, injuring plaintiff.  Plaintiff sued the driver of the car she was in (Pistorino).  Based on the finding that Pistorino had violated the Vehicle and Traffic Law by making a left turn in front of an oncoming car driven by defendant Allen, the motion court determined Pistorino’s act was the sole proximate cause of plaintiff’s injury and granted summary judgment to the plaintiff on liability. Allen, the driver of the other car, moved for summary judgment dismissing the claims against him based on the motion court’s “sole proximate cause” finding.  The Second Department reversed the motion court’s dismissal of the claims against Allen and wrote:

The Supreme Court erred, however, in granting that branch of Allen’s motion which was for summary judgment dismissing all cross claims asserted against him. Allen’s motion was based entirely upon the preclusive effect of the finding made by the Supreme Court in deciding the plaintiff’s motion for summary judgment, that, as between Jaclyn Pistorino and Allen, Jaclyn Pistorino was the sole proximate cause of the accident. However, the issue of the relative fault of Jaclyn Pistorino and Allen was not raised by the plaintiff in her motion. Correspondingly, the plaintiff did not demonstrate that, as between Jaclyn Pistorino and Allen, Jaclyn Pistorino was the sole proximate cause of the accident.  Anzel v Pistorino, 2013 NY Slip Op 02362, 2011-08058, 2011-11125, Index No 4001/11, 2nd Dept, 4-10-13

TRAFFIC ACCIDENTS

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Abuse of Discretion in Disallowing Jury Challenge Required Reversal of Conviction

In reversing a conviction because of the trial court’s refusal to consider an “untimely” peremptory challenge, the Second Department wrote:

During the second round of voir dire, after questioning of the second group of prospective jurors was completed and each side had exercised challenges for cause, the Supreme Court asked defense counsel if he wished to exercise any peremptory challenges, and defense counsel responded, “No.” Seconds later, as the court named the first three prospective jurors in the group to be assigned seats, defense counsel interrupted, apologizing, and explained that he had intended to exercise a peremptory challenge against one of the remaining prospective jurors in that group, prospective juror number four. Although that prospective juror was not yet assigned a seat and the reuest was made just moments after defense counsel mistakenly accepted all of the remaining prospective jurors in that group, the court denied defense counsel’s request to challenge that juror as untimely. Under these circumstances, where there was no discernable interference or undue delay caused by defense counsel’s momentary oversight, the Supreme Court improvidently exercised its discretion in denying defense counsel’s request to challenge the prospective juror …. Since a trial court’s improper denial of a peremptory challenge mandates automatic reversal …, we must reverse the conviction and order a new trial ….  People v Parrales, 2013 NY Slip Op 02417, 2011-05827, Ind No 1194/10, 2nd Dept 4-10-13

 

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Policy Taken Out to Cover Original One Story Building Did Not Cover Accident on Additional Floors Under Construction

The First Department, in a full-fledged opinion by Justice Saxe, determined that an insurance police which covered the original one-story building did not cover the additional floors subsequently under construction.  In a full-fledged opinion by Justice Saxe (with a dissent), the First Department wrote:

“Coverage cannot be afforded on liability for which insurance was not purchased” …. While the obligation to defend is broader than the duty to indemnify, it “does not extend to claims not covered by the policy” …. “[I]f the allegations interposed in the underlying complaint allow for no interpretation which brings them within the policy provisions, then no duty to defend exists” … .   If a policy insures a portion of a building, it does not cover an injury occurring in another portion of the building… . Seneca Ins Co v Cimran Co, Inc, 2013 NY Slip Op 02360, 9226, 1st Dept, 4-9-13

 

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Plaintiff Was Deemed Third Party Beneficiary of Contract Between Next-Door Neighbor and Chimney Repair Company— Smoke Was Entering Plaintiff’s Home

Smoke from defendant Moore’s fireplace was entering a neighbor’s (Trager’s) home.  Trager sued Moore and the defendant company (B & P) hired by Moore to fix their fireplace.  The motion court dismissed the cause of action against B & P.  The First Department reinstated the cause of action against B & P finding that Trager may have been a third-party beneficiary of the contract between Moore and B & P:

The complaint should not have been dismissed as against B & P because a question of fact exists as to whether B & P owed Linda Trager … a duty as a third-party beneficiary to B & P’s contract with the Moore defendants … . Castlepoint Ins Co v Moore, 2013 NY Slip Op 02352, 99747, 110915/09, 1st Dept, 4-9-13

 

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Question of Fact Raised by Competing Expert Affidavits Re: Proximate Cause

In reversing the trial court’s dismissal of a medical malpractice complaint, the First Department wrote:

In this medical malpractice appeal, defendants do not dispute that they departed from the accepted standard of care by incorrectly informing plaintiff that her April 9, 2007 PET scan was negative for recurrent cancer and not correcting that misinformation until November 2007. Defendants argue that the six month delay in notification did not cause plaintiff any injury. Defendants met their initial burden of establishing their entitlement to judgment as a matter of law … . However, the motion court erred in finding that plaintiff failed to raise an issue of fact requiring the denial of defendants’ motion and a trial. The issue of whether a doctor’s negligence is more “likely than not a proximate cause of [a plaintiff’s] injury” is usually for the jury to decide… . There is a substantial dissent by Justice DeGrasse.  Polanco v Reed, et al, 2013 NY Slip Op 02317, 303169/08, 8662A, 1st Dept 4-4-13

 

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Usual Criteria for Piercing the Corporate Veil Applied in Fraudulent Conveyance Action

The First Department determined the “pierce the corporate veil” causes of action should be dismissed, applying the usual “pierce the corporate veil” criteria in a “fraudulent conveyance” case:

“In order for a plaintiff to state a viable claim against a shareholder of a corporation in his or her individual capacity for actions purportedly taken on behalf of the corporation, plaintiff must allege facts that, if proved, indicate that the shareholder exercised complete domination and control over the corporation and abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice” … . “Factors to be considered in determining whether the owner has abused the privilege of doing business in the corporate form include whether there was a failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, and use of corporate funds for personal use … . In opposition to the [defendants’] motion for summary judgment, plaintiff failed to proffer any evidence of the above factors. Contrary to plaintiff’s claim, the factors mentioned [above] remain relevant even in a fraudulent conveyance case … .  D’Mel & Associates v Athco, Inc, et al, 9713, 602486/09, 1st Dept 4-4-13

 

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Procedure for Testing Adequacy of Causes of Action in Article 78 Petition; Criteria for Bad Faith Abolishment of Position

The Third Department upheld Supreme Court’s determination that the petitioner had stated a cause of action in his Article 78 proceeding for bad faith abolishment of his tenured Assistant Superintendent position.  The Third Department noted that the proper criteria for analysis in this Article 78 proceeding is the same as in a pre-answer motion to dismiss under CPLR 3211:

In a CPLR article 78 proceeding, objections in point of law may be raised either through  a pre-answer motion  to dismiss or – as here – in the verified answer  (see CPLR  7804  [f]). Such objections are appropriately afforded review similar in nature to that applied to defenses raised in a pre-answer motion to dismiss pursuant to CPLR 3211 (a).  *  *  *

A school district may abolish a position, even when this results in the discharge of a tenured employee, so long as it “has made a good faith determination based on economic considerations” … . *  *  * We agree with Supreme Court that [petitioner’s] specific and nonconclusory assertions, when deemed to be true for this purpose, were sufficient to allege that the abolition of his position “was motivated by reasons other than a desire to promote institutional efficiency and economy” and thus state a cause of action … .  Matter of Lally v Johnson City School District, 515488, 3rd Dept 4-4-13

 

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Petitioner Entitled to Attorney’s Fees Based on Respondent’s Failure to Timely Respond to Requests for Information

The Third Department determined petitioner should be granted attorney’s fees because of respondent’s ignoring a FOIL request until an Article 78 proceeding was brought.  Even though respondent indicated the requested documents didn’t exist, the Third Department ruled that petitioner had “prevailed” in the FOIL proceedings and was therefore entitled to attorney’s fees:

By commencing this proceeding to force respondent to respond to its request, after a tortuous history, petitioner finally “received all the information that it requested and to which it was entitled in response to the underlying FOIL litigation, [and thus] it may  be said to have substantially prevailed within the meaning of Public Officers Law § 89 (4) ©” … .

The fact that full compliance with the statute was finally achieved in the form of a certification that the requested record could not be found after a diligent search, as opposed to the production of responsive documents, does not preclude a  petitioner from being  found  to have substantially prevailed, for the petitioner received the full and only response available pursuant to the statute under the circumstances. As we have emphasized, the counsel fee provision was added in recognition that persons seeking to force an agency to respond to a proper FOIL request “must engage in costly litigation,” and the statute was recently amended “in order to ‘create a clear deterrent to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL’”… . Matter of Legal Aid Society v NYS Department of Corrections …, 515257, 3rd Dept 4-4-13

 

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Disciplinary Actions by SUNY School Did Not Violate Student’s Due Process Rights 

In upholding the disciplinary action taken by a SUNY school against a student, the Third Department determined the student’s due process rights had not been violated:

Petitioner’s due  process rights were  not violated in as much as he was given written notice of the charges prior to the hearing, the name of the witness against him, the opportunity to present a defense and have the assistance of an advisor at the hearing, and a statement detailing the factual findings, evidence relied upon and discipline imposed… .  Matter of Schwarzmueller v SUNY Potsdam, et al, 515193, 3rd Dept 4-4-13

COLLEGES AND UNIVERSITIES

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Appeal Found “Frivilous”

In finding an appeal frivolous, the Third Department wrote:

We also are persuaded that defendant’s pursuit of this appeal is frivolous within the meaning of 22 NYCRR 130-1.1 (c) (2) and, therefore, plaintiff is entitled to an award of reasonable counsel fees incurred in responding thereto.  … [O]nce  plaintiff was  awarded  partial summary  judgment  in February 2011 and secured a judgment in its favor, defendant had several permissible options, such as appealing the underlying order and judgment or paying – in full – the amount awarded to plaintiff.  Instead, defendant continued to dispute the sum due by delaying payment, thereby compelling plaintiff to move for the turnover order and, ultimately, to expend resources responding to the instant appeal seeking $825.55.  Such conduct, in our view, warrants an award of reasonable counsel fees incurred in responding to this appeal, and this matter is remitted to Supreme Court for a determination of the amount of such fees … .  Defendant’s remaining arguments, to the extent not specifically addressed, have been considered and found to be  lacking in merit.  Valley Psychological, PC v … Geico, 514672, 3rd Dept 4-4-13

 

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