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Delay in Notification Justified Refusal to Defend and Indemnify

The Second Department determined the failure of one insurance company, Fage, to notify another insurance company, Utica, of an automobile accident until 2 ½ years after the accident justified Utica’s refusal to defend and indemnify Fage under the commercial liability umbrella policy issued by Utica to Fage:

The umbrella policy requires Fage to notify Utica of an occurrence or suit as soon as practicable. Such a requirement is a condition precedent to coverage … . Where an insurance policy requires that notice of an occurrence be given as soon as practicable, notice must be given within a reasonable time in view of all of the circumstances … . Absent a valid excuse, the failure to satisfy the notice requirement of an insurance policy vitiates coverage … .

Here, no notice was given to Utica by Fage until more than 2½ years after the subject accident and more than 2 years after the underlying action was commenced. This was an unreasonable delay … . Fage has provided no evidence of circumstances, such as lack of knowledge of the accident or a reasonable belief in nonliability, to excuse its delay … . Although Fage claims that its counsel was not aware of the existence of the umbrella policy until October 2009, such unawareness is not a valid excuse for the failure to provide Utica with timely notice … .  Ortiz v Fage USA Corp, 2012 NY Slip Op 02229, 2012-00469, Index Nos 22944/07, 23217/10, 2nd Dept 4-3-13

 

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Criteria for Demonstrating Documents Were Material Prepared in Anticipation of Litigation

The Second Department explained the burden of proof for demonstrating documents are immune from discovery as material prepared in anticipation of litigation as follows:

“The burden of proving that a statement is privileged as material prepared solely in anticipation of litigation or trial is on the party opposing discovery” … . More particularly, “[t]he party asserting the privilege that material sought through discovery was prepared exclusively in anticipation of litigation . . . bears the burden of demonstrating that the material it seeks to withhold is immune from discovery … by identifying the particular material with respect to which the privilege is asserted and establishing with specificity that the material was prepared exclusively in anticipation of litigation” … . An attorney’s affirmation containing conclusory assertions that requested documents are conditionally immune from disclosure pursuant to CPLR 3101(d)(2) as material prepared in anticipation of litigation, without more, is insufficient to sustain the movant’s burden of demonstrating that the materials were prepared exclusively for litigation … .  New York Schools Ins Reciprocal v Milburn Sales Co, Inc, 2013 NY Slip Op 02227, 2012-01697, Index no 2848/11, 2nd Dept 4-3-13

 

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Where Attorney Is a Party to a Lawsuit, Attorney’s Submission of an Affirmation as Opposed to an Affidavit in Opposition to Motion to Dismiss Is Not a Sufficient Ground for Dismissal of the Complaint

The Second Department determined a complaint could not be dismissed on the ground that an attorney’s unnotarized affirmation was submitted in opposition to the motion, rather than an affidavit:

When an attorney is a party to an action, and affidavits are required to support or oppose a request for relief, that attorney may not rely upon an unnotarized affirmation in lieu of an affidavit, as the facts alleged in that affirmation would not be in admissible form (see CPLR 2106…). However, contrary to the Supreme Court’s determination, [plaintiff’s] submission of an unnotarized affirmation in lieu of an affidavit in opposition to the … defendants’ motion to dismiss the complaint insofar as asserted against them did not warrant the granting of that motion. “CPLR 3211 allows [a] plaintiff to submit affidavits, but it does not oblige him [or her] to do so on penalty of dismissal” … . Accordingly, [defendant’s] failure to submit an affidavit was not fatal to his opposition, and the Supreme Court should not have granted the … defendants’ motion to dismiss the complaint insofar as asserted against them on that basis. Law Offs of Frishberg v Toman, 2013 NY Slip Op 02224, 2011-04956, 2011-07881, Index No 12965/10, 2nd Dept 4-3-13

 

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Criteria for Determining Sufficiency of Evidence Before Grand Jury Explained 

In reinstating two counts of an indictment that were dismissed upon the trial court’s review of the sufficiency of the proof before the grand jury, the Second Department wrote:

“Courts assessing the sufficiency of the evidence before a grand jury must evaluate whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted—and deferring all questions as to the weight or quality of the evidence—would warrant conviction'” … . ” Legally sufficient evidence’ means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof” (CPL 70.10[1]). ” In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt'” … . “The reviewing court’s inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes,’ and whether the Grand Jury could rationally have drawn the guilty inference.’ That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the Grand Jury could rationally have drawn the guilty inference'” … .  People v Woodson, 2013 NY Slip Op 02282, 2012-02226, Ind No 1881/11, 2nd Dept 4-3-13

 

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Court’s Imposition of Restitution at Sentencing Required Reversal Because Restitution Was Not Part of Plea Agreement

The Second Department determined the trial court’s imposition of restitution at sentencing, where restitution was not part of the plea agreement, required that the defendant be given the opportunity to withdraw his plea or to accept the enhanced sentence:

Although a court is free to reserve the right to order restitution as part of a plea agreement, the plea minutes do not indicate that a plea of guilty was negotiated with terms that included restitution. Accordingly, at sentencing, the defendant should have been “given an opportunity either to withdraw his plea or to accept the enhanced sentence that included both restitution and a prison sentence … or for the court to impose the agreed-upon sentence.  People Poznanski, 2013 NY Slip Op 02272, 2008-06938, Ind No 2672/06, 2nd Dept 4-3-13

 

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Criteria for Valid Waiver of Appeal Explained

In finding the defendant did not make a valid waiver of his right to appeal because the colloquy was inadequate, in spite of the defendant’s signing a written waiver, the First Department wrote:

We note that litigation over the validity of appeal waivers, which arises regularly from many courts, can best be avoided if trial judges separately llocate defendants on the waiver of the right to appeal … . We again remind the courts that the better practice is to secure a written waiver, along with a thorough colloquy to ensure the defendant’s understanding of its contents … . It would be best if the court made clear that this is a separate and important right being waived, and that by signing the waiver, the plea and sentence are final, and the defendant agrees to accept the sentence imposed. The court cannot rely solely on defense counsel to explain the significance of the written waiver. People v Oquendo, 2013 NY Slip Op 02320, 9617, 1090/09, 1st Dept 4-4-13

 

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28-Hours Between Arrest and Arraignment Okay

The Second Department determined a 28-hour delay between arrest and arraignment did not render defendant’s confession involuntary:

Approximately 28 hours elapsed between the time the police arrested the defendant and the time the defendant made the statement sought to be suppressed. While an undue delay in arraignment is properly considered when assessing the voluntariness of a defendant’s confession, a delay in arraignment alone does not warrant suppression, as it is but one factor in assessing the voluntariness of a confession … . The record does not support the defendant’s claim that the police unnecessarily delayed his arraignment. Here, the delay in arraigning the defendant was attributable to the time it took the police to conduct a thorough investigation and not to a strategically designed plan to permit the defendant to be questioned outside the presence of counsel … . People v Lin, 2013 NY Slip Op 02267, 2008-07244, Ind No 1705/05, 2nd Dept 4-3-13

SUPPRESS, SUPPRESSION

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Detective’s Testimony About Statement Made by Nontestifying Co-Defendant Violated Defendant’s Right of Confrontation

The Second Department reversed defendant’s conviction because a detective was allowed to testify about a statement made by a nontestifying codefendant in violation of the defendant’s right of confrontation under Crawford:

…[O]ver the defendant’s objection, the trial court allowed the prosecutor to elicit, from a detective, the statement of a nontestifying codefendant that the defendant was in the codefendant’s vehicle on the night of the incident. As the People correctly concede, this violated the defendant’s right of confrontation, secured to him by the Sixth Amendment to the United States Constitution … . This error was compounded when, on summation, the prosecutor argued that the codefendant’s statement established the defendant’s presence at the scene of the incident. Since the remaining evidence establishing the defendant’s identity as one of the assailants was not overwhelming, the error cannot be deemed harmless beyond a reasonable doubt… . People v Andujar, 2013 NY Slip Op 02261, 2009-06561, Ind No 1124/06, 2nd Dept 4-3-13

 

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Late Notice of Claim Disallowed

In finding the trial court abused its discretion in granting plaintiff’s motion for leave to file a late notice of claim, the Second Department noted that (1) serving the wrong party, i.e., law office failure, was not an acceptable excuse, (2) there was no demonstration by the plaintiffs that the (potential) defendant had actual knowledge of the facts of the claim, and (3) there was no demonstration by the plaintiffs that the (potential) defendant was not prejudiced by the delay in its ability to conduct a thorough investigation.  Peters-Heenpella v Wynn, 2013 NY Slip Op 02233, 2012-02561, Inex No 19749/11, 2nd Dept 4-3-13

 

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Late Notice of Claim Allowed in Absence of Reasonable Excuse

In affirming the granting of a petition to file a late notice of claim, in spite of the absence of a reasonable excuse for a timely filing, the Second Department wrote:

…[T]he City defendants acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose, as indicated by an affidavit from the petitioner, wherein she stated that immediately following her son’s injury, a teacher’s aide took her son to the hospital where he was admitted and underwent surgery, and remained for two weeks. The petitioner further stated that within one month after the incident, she told the dean of the school that she was upset that her son was permitted to play tackle football without safety equipment during gym class, and that she wanted to make a claim against the school … . Furthermore, the City defendants would not be substantially prejudiced in their ability to maintain a defense. Although the petitioner failed to provide a reasonable excuse for failing to timely serve a notice of claim, under the circumstances of this case, that is not fatal to the petition … .   Matter of McLeod v City of New York, 2013 NY Slip Op 02251, 2012-03238, Index No 25950/11, 2nd Dept 4-3-13

 

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