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THE GENERAL OBLIGATIONS LAW PROHIBITION OF SEEKING REIMBURSEMENT OF MEDICAL COSTS FROM A TORT ACTION SETTLEMENT DOES NOT APPLY TO SELF-FUNDED EMPLOYEE BENEFIT PLANS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the General Obligations Law prohibition of seeking reimbursement of medical costs out of an insured’s tort action settlement does not apply to self-funded employee benefit plans.

The infant plaintiff was injured in an automobile accident and, after this personal injury action was commenced, sought the Supreme Court’s approval to accept the defendants’ offer to settle his claim for the policy limit of the defendants’ insurance policy of $300,000. The appellant, which is the administrator of the employee benefit plan for the employer of the infant plaintiff’s mother, sought to enforce a subrogation lien in the sum of $108,008.10, for the sums the plan paid for medical bills for the infant plaintiff arising out of the accident, against the settlement proceeds. The appellant contended that New York’s anti-subrogation statute, General Obligations Law § 5-335, was preempted because the employee benefit plan at issue was a self-funded plan governed by the Employment Retirement Income Security Act of 1974 (29 USC § 1001 et seq. ; hereinafter ERISA). …

While General Obligations Law § 5-335 precludes health insurers from seeking reimbursement out of an insured’s tort action settlement, that statute is preempted by ERISA in the instance of self-funded plans, which are not deemed to be insurers or insurance companies … . Here, the appellant established that the employee benefit plan at issue was self-funded, in that it does not purchase an insurance policy from an insurance company in order to satisfy its obligations to plan participants. As such, it was error to hold that the subrogation lien was unenforceable against the infant plaintiff’s settlement proceeds. David v David, 2021 NY Slip Op 02784, Second Dept 5-5-21

 

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THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS ENGAGED IN REPAIR AS OPPOSED TO ROUTINE MAINTENANCE OF THE AIR CONDITIONER WHEN HE WAS INJURED; THEREFORE DEFENDANT’S MOTION TO DIMSISS THE LABOR LAW 240(1) CAUSE OF ACTION WAS PROPERLY DENIED; HOWEVER THE LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN DISMIISED BECAUSE PLAINTIFF WAS NOT INVOLVED IN CONSTRUCTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court determined defendant’s (Chase’s) motion for summary judgment on the Labor Law 240(1) cause of action was properly denied but Chase’s motion for summary judgment on the Labor Law 241(6) cause of action should have been granted. There was a question of fact whether plaintiff was engaged in routine maintenance repair of the air conditioner. But plaintiff was not involved in construction of the building, so Labor Law 241 (6) did not apply:

Chase’s own evidentiary submissions, including the injured plaintiff’s deposition testimony, raised triable issues of fact as to whether the injured plaintiff was engaged in repairs or routine maintenance at the time the accident occurred. Although it is undisputed that an outside party was to perform the ultimate repair to the defective division plate, the injured plaintiff testified at his deposition that his supervisor instructed him to perform a temporary repair to the division plate in order to make the air conditioning unit function. Thus, there is a triable issue of fact as to whether the injured plaintiff’s activity constituted a repair of the unit within the scope of Labor Law § 240(1) … . …

“Although the applicability of Labor Law § 241(6) is not limited to building sites, the work in which the plaintiff was engaged must have affected the structural integrity of the building or structure or have been an integral part of the construction of a building or structure” … . Cantalupo v Arco Plumbing & Heating, Inc., 2021 NY Slip Op 02783, Second Dept 5-5-21

 

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THE ESTATE WAS A NECESSARY PARTY IN THIS FORECLOSURE ACTION; SUPREME COURT SHOULD HAVE ORDERED THE JOINDER OF THE ESTATE INSTEAD OF DISMISSING THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court properly held that the estate was a necessary party in this foreclosure action, but failing the include the estate did no warrant dismissal of the complaint. Rather, the court should directed that the estate be joined as a party:

Supreme Court did not err in finding that the estate was a necessary defendant. “Pursuant to RPAPL 1311(1), ‘necessary defendants’ in a mortgage foreclosure action include, among others, ‘[e]very person having an estate or interest in possession, or otherwise, in the property as tenant in fee, for life, by the courtesy, or for years, and every person entitled to the reversion, remainder, or inheritance of the real property, or of any interest therein or undivided share thereof, after the determination of a particular estate therein'” … . Particularly where, as here, the plaintiff seeks a deficiency judgment, and alleges a default in payment subsequent to the death of the deceased mortgagor, the estate of the mortgagor is a necessary party to the foreclosure action … . However, dismissal of the complaint was not the proper remedy; rather, the proper remedy was to direct the joinder of the estate as a defendant (see CPLR 1001[b] …). BAC Home Loans Servicing, L.P. v Williams, 2021 NY Slip Op 02780, Second Dept 5-5-21

 

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DEFENDANT FAILED TO PRESENT EVIDENCE THAT THE AREA OF PLAINTIFF’S SLIP AND FALL WAS INSPECTED OR CLEARED OF ICE AND SNOW DURING THE TWO DAYS PRIOR TO THE FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE AS A MATTER OF LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant UPS did not demonstrate the lack of constructive notice of the snow and ice condition upon which plaintiff allegedly slipped and fell:

UPS failed to demonstrate, prima facie, that it lacked constructive notice of the ice condition on which the plaintiff allegedly slipped and fell in the early morning of January 1, 2011 … . In support of that branch of its motion which was for summary judgment dismissing the complaint, UPS failed to submit any evidence concerning the condition of the subject area after it had been cleared of snow and ice on December 29, 2010, or within a reasonable time prior to the plaintiff’s fall on the morning of January 1, 2011 … . UPS submitted evidence demonstrating that it ceased all snow removal efforts on December 29, 2010, in relation to a storm that dropped a significant amount of snow, and that the area where the plaintiff fell was free of ice at that time. However, it submitted no evidence as to when the area was inspected again between December 29, 2010, and the time of the plaintiff’s accident more than two days later. Under the circumstances, triable issues of fact exist including whether the alleged ice condition that caused the plaintiff to slip and fall was visible and apparent, and whether it had existed for a sufficient length of time before the accident such that UPS could have discovered and corrected it … . Anderson v United Parcel Serv., Inc., 2021 NY Slip Op 02777, Second Dept 5-5-21

 

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THE COUNTY CHARTER PROVISION PROHIBITING SERVICE AS A COUNTY LEGISLATOR “FOR MORE THAN 12 CONSECUTIVE YEARS” DOES NOT PRECLUDE A NEW TERM THAT IS NOT CONSECUTIVE TO THE PRECEDING TERM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the provision of the Suffolk County Charter which prohibits serving as a county legislature “for more than 12 consecutive years” did not preclude petitioner from running for a new term that was not consecutive to the preceding term:

“[T]he plain language of the statute . . . is the clearest indication of legislative intent” … .Here, the relevant provision of the Suffolk County Charter states that “[n]o person shall serve as a County Legislator for more than 12 consecutive years” (Suffolk County Charter art II, § C2-5[B]). This provision does not expressly impose any total or lifetime term limit. Further, the plain language of the provision only prohibits a County Legislator from serving more than 12 consecutive years. In construing a statute, “words must be ‘harmonize[d]’ and read together to avoid surplusage” … . Therefore, the provision should not be interpreted as prohibiting an individual who has previously served as a County Legislator for 12 consecutive years from thereafter seeking a new term in that office, so long as the new term sought is not consecutive to the preceding term … . Matter of Doyle v Browning, 2021 NY Slip Op 02838, Second Dept 5-5-21

 

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THE FAILURE TO REQUEST A DOWNWARD DEPARTURE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE; THE DISSENT DISAGREED (SECOND DEPT).

The Second Department, over a dissent, determined counsel’s failure to ask for a downward departure in the SORA risk level assessment proceeding did not amount to ineffective assistance of counsel:

Assuming arguendo that in hindsight, the defendant’s counsel, instead of simply opposing the People’s request for an upward departure from the Board’s assessment of points, also should have expressly argued for a downward departure from the assessment of points contained in the People’s RAI, the omission was not so egregious or prejudicial as to deprive the defendant of the effective assistance of counsel … . The defendant has neither demonstrated the absence of a strategic or other legitimate explanation for counsel’s failure to request a downward departure, nor even addressed that issue in the pro se supplemental brief, as is necessary to sustain an ineffectiveness claim … . Further, depictions on the defendant’s phone included young girls who were toddlers to age seven, including those engaged in sexual intercourse and oral sex with men. Under these circumstances, a downward departure would not have been appropriate given “the number and nature of the images possessed by the defendant” … . People v Carman, 2021 NY Slip Op 02834, Second Dept 5-5-21

 

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THE EVIDENCE RELIED UPON BY COUNTY COURT TO DENY DEFENDANT’S RESENTENCING PURSUANT TO THE DRUG LAW REFORM ACT (DLRA) WAS NOT SUFFICIENT TO OVERCOME THE STATUTORY PRESUMPTION FAVORING RESENTENCING (SECOND DEPT).

Second Department, reversing County Court, determined the evidence relied upon by County Court was not sufficient to overcome the statutory presumption in favor of resentencing pursuant to the Drug Law Reform Act (DLRA):

Where, as here, a defendant is eligible for resentencing relief pursuant to the 2004 DLRA and CPL 440.46, there is a statutory presumption in favor of resentencing …  . Although resentencing is not mandatory, there is a presumption that th.e defendant is entitled to benefit from the reforms enacted by the Legislature based upon its judgment that the prior sentencing scheme for drug offenses like those committed by the defendant was excessively harsh … .

Under the circumstances of this case, the factors relied upon by the County Court in denying the motion, including the defendant’s criminal history, the quantity of drugs involved in the underlying offenses, and the defendant’s disciplinary infractions while incarcerated, were insufficient to overcome the statutory presumption … . People v Williams, 2021 NY Slip Op 02831, Second Dept 5-5-21

 

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THE LAW OF THE CASE DOCTRINE PRECLUDED SUPREME COURT’S CONSIDERATION OF ADDITIONAL EVIDENCE TO JUSTIFY SENTENCING DEFENDANT AS A PERSISTENT VIOLENT FELONY OFFENDER; THE APPELLATE COURT HAD SENT THE MATTER BACK FOR RESENTENCING AFTER FINDING PERSISTENT VIOLENT FELONY OFFENDER STATUS WAS NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the law of the case doctrine precluded precluded Supreme Court from considering additional evidence and finding the incarceration tolling period was sufficient to permit sentencing defendant as a persistent violent felony offender. The Second Department, on a prior appeal, had found the tolling period insufficient and sent the matter back for resentencing:

“The doctrine of the law of the case is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned” … . “An appellate court’s resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court” … , and “‘forecloses reexamination of [an issue previously determined] absent a showing of newly discovered evidence or a change in the law'” … .

Here, this Court previously determined, on the merits, that the defendant’s incarceration dates did not amount to a sufficient tolling period so as to qualify the March 27, 1987 conviction as a predicate violent felony under Penal Law § 70.04(1)(b)(iv) and (v). The People had a full and fair opportunity to litigate this issue both at the initial hearing before the Supreme Court in 2013, and before this Court on appeal … . People v Kaval, 2021 NY Slip Op 02823, Second Dept 5-5-21

 

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DEFENDANT COMMITTED CRIMES IN ONE COUNTY AND LED THE POLICE ON A CAR CHASE WHICH ENDED IN ANOTHER COUNTY; SOME OF THE CHARGES STEMMED FROM THE CAR CHASE; THE JUDGE SHOULD NOT HAVE INSTRUCTED THE JURY THAT THE PEOPLE HAD GEOGRAPHIC JURISDICTION OVER ALL THE COUNTS IF THE PEOPLE HAD JURISDICTION OVER ONE COUNT (SECOND DEPT).

The Second Department, ordering a new trial on some of the charges, determined the judge should not have instructed the jury that finding the People had geographic jurisdiction over one count proved the county with jurisdiction over all counts. Defendant had fled the scene of the murder and led the police on a chase which ended in a different county. The counts at issue stemmed from the car chase:

“The defendant has the right at common law and under the State Constitution to be tried in the county where the crime was committed unless the Legislature has provided otherwise” … . “The burden is on the People to prove by a preponderance of the evidence that the county where the crime is prosecuted is the proper venue because either the crime was committed there or one of the statutory exceptions is applicable” … , insofar as is relevant here, “an appropriate criminal court of a particular county” has jurisdiction of an offense where “[c]onduct occurred within such county sufficient to establish . . . [a]n element of such offense.” “[G]enerally it is for the jury to decide, as a matter of fact, the place where the crime was committed or any other fact relevant to venue” … .

Here, upon submitting the issue of venue regarding counts three, four, and seven to the jury, the Supreme Court “incorrectly instructed that a finding of geographic jurisdiction on one count effectively provided the County with jurisdiction over all the other counts” … . This error cannot be deemed harmless. Because a defendant is entitled to have a jury, not the court, determine factual issues regarding venue, “[i]t is not enough that the record contains evidence” that an element of the offense occurred in the county asserting jurisdiction … . Rather, “it must appear from the instructions or by necessary implication from the verdicts that the jury made a finding of proper venue” … . People v Crumb, 2021 NY Slip Op 02816, Second Dept 5-5-21

 

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ALTHOUGH THE EVIDENCE OF SERIOUS PHYSICAL INJURY WAS INSUFFICIENT, THE EVIDENCE DEFENDANT INTENDED TO INFLICT SERIOUS PHYSICAL INJURY WAS SUFFICIENT; CONVICTIONS REDUCED TO ATTEMPTED GANG ASSAULT, ASSAULT AND ROBBERY (SECOND DEPT).

The Second Department, reducing defendant’s gang assault, assault and robbery convictions to attempted gang assault, assault and robbery, determined the evidence of serious physical injury was insufficient, but the evidence of an intent to inflict serious physical injury was sufficient. The victim was attacked and slashed but no internal organs were injured:

Viewing the evidence in the light most favorable to the prosecution… , we find that the evidence was not legally sufficient to establish the defendant’s guilt on these counts. Although the complainant was stabbed multiple times, there was no evidence of serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ … .

However, the evidence at trial also established beyond a reasonable doubt that the defendant acted with the intent to inflict serious physical injury and came “dangerously near” to committing the completed crimes … . Accordingly, we modify the judgment by reducing the defendant’s convictions of gang assault in the first degree, assault in the first degree, robbery in the first degree under Penal Law § 160.15(1), and assault in the second degree to attempted gang assault in the first degree, attempted assault in the first degree, attempted robbery in the first degree, and attempted assault in the second degree, respectively, and we remit the matter to the Supreme Court, Queens County, for sentencing. People v Aragundi, 2021 NY Slip Op 02811, Second Dept 5-5-21

 

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