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PLAINTIFFS ALLEGED THEY PAID A BROKER FOR THE INSURANCE POLICY ISSUED BY DEFENDANT INSURER BUT THE INSURER CANCELLED THE POLICY FOR NONPAYMENT; THE INSURER ALLEGED THE BROKER WAS NOT IN THE CHAIN OF BROKERS LEADING FROM PLAINTIFFS TO THE INSURER; QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant-insurer’s (Interstate’s) motion for summary judgment in this “wrongful policy cancellation” suit should not have been granted. Plaintiffs alleged they paid a broker for the policy issued by Interstate . The premiums never reached Interstate. Interstate alleged the broker was not in the chain of brokers leading from plaintiffs to Interstate. The policy was cancelled for nonpayment:

Plaintiffs allege that they paid a broker the initial premium for the excess liability coverage issued by defendants, and that the broker also procured a financing agreement for them for the balance of the premiums. The party financing the premiums paid the broker on plaintiffs’ behalf and plaintiffs complied with the financing agreement. Plaintiffs’ president testified that plaintiffs only dealt with that broker, who delivered the policies to them. However, the premiums never reached defendants, who canceled the policies. Thereafter, three persons were killed during the term of the policies in an accident on plaintiffs’ premises when the decedents inhaled hydrogen sulfide fumes (the accident). Defendants disclaimed coverage.

Where an insured makes timely payment to a broker in the chain of brokers and the insurer delivers the policy to the broker pursuant to the broker’s request, Insurance Law § 2121 precludes the insurer from canceling the policy based on nonpayment of premiums where the broker did not remit the payment to the insurer … .

Here, the record is replete with triable issues of fact as to whether the broker with whom plaintiffs state they dealt was in the chain of brokers leading from plaintiffs to Interstate, such that the payment of the premiums to the broker was sufficient to bind Interstate. Plaintiffs referred to the testimony of their president that the broker was the only broker used by them, and that the broker’s employee delivered the policies to them. Moreover, the premium checks were made payable to the broker, who prepared a loss summary, and no evidence was presented demonstrating that another broker delivered the policies to plaintiffs. However, the absence of significant paperwork naming the broker cited by plaintiffs as a broker in the transaction, the testimony of the wholesale brokers that they did not deal with the broker cited by plaintiffs and would not do so, and the Notice of Excess Line Placement naming a different entity as plaintiffs’ broker, raise questions that preclude summary judgment in favor of either plaintiffs or Interstate. Royal Waste Servs., Inc. v Interstate Fire & Cas. Co., 2020 NY Slip Op 03616, First Dept 6-25-20

 

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QUESTIONS OF FACT WHETHER INDUSTRIAL CODE PROVISIONS RE: DEBRIS IN PASSAGEWAYS AND KEEPING EQUIPMENT IN GOOD REPAIR IN THIS LABOR LAW 241(6) ACTION PRECLUDED SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment on the Labor Law 241(6) causes of action should not have been granted. There were questions of fact whether the Industrial Code provisions re: debris in passageways and keeping equipment in good repair were violated. Plaintiff was injured when a wheeled dumpster allegedly tipped over:

Plaintiff’s claim premised upon § 23-1.7(e)(2), which concerns debris in passageways, is viable because the area where the accident occurred was a passageway for the purposes of that provision … . The provision applies not just when loose debris causes a direct trip and fall, but also in circumstances similar to those involved here … .

With regard to § 23-1.28(b), which pertains to hand-propelled vehicles, and § 23-1.5(c), which prohibits use of machinery or equipment that is not in good repair and safe working condition, defendants failed to make a prima facie showing that the wheeled dumpster was not defective … . Sancino v Metropolitan Transp. Auth., 2020 NY Slip Op 03615, First Dept 6-25-20

 

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PETITIONER DID NOT HAVE THE STATUTORILY REQUIRED CLOSE RELATIONSHIP WITH THE RESPONDENT IN THIS FAMILY OFFENSE PROCEEDING; FAMILY COURT DID NOT HAVE SUBJECT MATTER JURISDICTION (FIRST DEPT).

The First Department, reversing Family Court, determined Family Court did not have subject matter jurisdiction over this family offense proceeding because the petitioner and the respondent were not members of the same family or household and had not been in an intimate relationship:

The court lacks subject matter jurisdiction over this family offense proceeding brought by the foster mother of respondent’s biological children. Petitioner failed to establish that she and respondent, who are not members of the same family or household, are or have been in an intimate relationship (see Family Court Act § 812[1][e] …). Petitioner testified that she did not even know respondent’s first name. It appears from the record that petitioner’s contact with respondent has been limited to scheduling visitation with the children at the agency and, perhaps, interacting with respondent when she went to petitioner’s home to pick up the children for visits. Matter of Veronica C. v Ariann D., 2020 NY Slip Op 03612, First Dept 6-25-20

 

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THE OPINION CHANGING THE CRITERIA FOR THE DEPRAVED-INDIFFERENCE MENS REA CAME DOWN BEFORE DEFENDANT’S CONVICTION BECAME FINAL; DESPITE THE AFFIRMANCE OF DEFENDANT’S MURDER CONVICTION ON APPEAL, THE DENIAL OF A MOTION TO REARGUE THE APPEAL, THE DENIAL OF THE MOTION FOR LEAVE TO APPEAL TO THE COURT OF APPEALS, AND THE DENIAL OF DEFENDANT’S PETITION FOR A WRIT OF HABEAS CORPUS IN FEDERAL COURT, SUPREME COURT SHOULD HAVE GRANTED DEFENDANT’S MOTION TO VACATE HIS CONVICTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his depraved-indifference murder conviction should have been granted. The Court of Appeals opinion which changed the proof requirements for the depraved indifference mens rea was issued before defendant’s conviction became final. The proof at defendant’s trial demonstrated defendant acted intentionally as opposed acting with “depraved indifference:”

… [T]he defendant moved pursuant to CPL 440.10(1)(h) to vacate so much of the judgment as convicted him of depraved indifference murder, arguing that, in light of People v Payne (3 NY3d 266), which was decided 15 days after this Court affirmed the judgment of conviction on his direct appeal but before his conviction became final (see Policano v Herbert, 7 NY3d at 593), the evidence at trial was legally insufficient to establish that he acted with the requisite mens rea for depraved indifference murder. The Supreme Court denied the motion without a hearing, as both procedurally barred by CPL 440.10(2)(a) and meritless. The court reasoned that the defendant’s legal sufficiency argument based on the change of law set forth in People v Payne had been addressed and rejected by this Court in denying the defendant’s motion for leave to reargue his direct appeal, by the Court of Appeals in denying the defendant’s motion for leave to appeal, and by the federal court in denying the defendant’s petition for a writ of habeas corpus. With respect to the merits of the defendant’s motion, the Supreme Court determined that, viewing the evidence in the light most favorable to the prosecution, the evidence was legally sufficient to support the jury’s verdict. * * *

… [T]he trial evidence was not legally sufficient to support a verdict of guilt of depraved indifference murder (see People v Payne, 3 NY3d at 272; People v Hernandez, 167 AD3d at 940). People v Illis, 2020 NY Slip Op 03535, Second Dept 6-24-20

 

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DEFENSE ‘FALSE CONFESSION’ EXPERT SHOULD HAVE BEEN ALLOWED TO TESTIFY, CONVICTION REVERSED; RIGHT TO CONFRONT WITNESSES NOT VIOLATED BY STATEMENTS IN THE VIDEO INTERROGATION THAT NONTESTIFYING WITNESSES HAD IMPLICATED THE DEFENDANT (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction, determined the defense “false confession” expert should have been allowed to testify. The defendant was 15 when arrested. He maintained his innocence for two hours and 45 minutes of interrogation before confessing. The Second Department rejected defendant’s argument that he was denied his right to confront witnesses by statements in the video interrogation that nontestifying witnesses had implicated the defendant:

Contrary to the defendant’s contention, his right to confrontation was not violated when the Supreme Court allowed into evidence portions of his videotaped statement to law enforcement officials that contained statements that nontestifying witnesses had implicated him in the crime. The statements were not received for their truth, but to explain the defendant’s reaction to hearing them … . Further, the court properly instructed the jury that it was not to consider any of the statements as evidence against the defendant, and the jury is presumed to have followed this admonition … . * * *

… Supreme Court improvidently exercised its discretion in denying the defendant’s application to permit testimony from his expert witness on the issue of false confessions. We have previously determined that “it cannot be said that psychological studies bearing on the reliability of a confession are, as a general matter, within the ken of the typical juror'” … . Thus, here, the court should not have precluded the testimony of the defendant’s expert witness on this ground.

Further, “[w]ith regard to expert testimony on the phenomenon of false confessions, in order to be admissible, the expert’s proffer must be relevant to the [particular] defendant and interrogation before the court'” … . Here, the report of the defendant’s expert was sufficiently detailed so that it was relevant to this particular defendant, including discussing characteristics that heightened his vulnerability to manipulation, and the interrogation conducted by the detectives, such as the techniques that were utilized and the improper participation of the defendant’s mother during the interview. People v Churaman, 2020 NY Slip Op 03526, Second Dept 6-24-20

 

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VILLAGE DID NOT DEMONSTRATE IT DID NOT CREATE THE DEFECT IN THIS SIDEWALK/TREE-WELL SLIP AND FALL CASE; THEREFORE THE VILLAGE’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the village’s motion for summary judgment in this sidewalk/tree-well slip and fall case should not have been granted. The Village demonstrated it did not have the required written notice of the defect, but did not demonstrate it did not create the defect:

” A municipality that has adopted a prior written notice law cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies'” … . “Two exceptions to the prior written notice requirement have been recognized, namely, where the locality created the defect or hazard through an affirmative act of negligence and where a special use confers a special benefit upon the locality” … .

“[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” … . Here, the plaintiff alleged in her complaint and bill of particulars that the Village affirmatively created the defect that caused the accident. Therefore, in order to establish its prima facie entitlement to judgment as a matter of law, the Village had to demonstrate both that it did not have prior written notice of the defect and that it did not create the defect … . The Village established, prima facie, that it did not have prior written notice of the defect, but it failed to establish, prima facie, that it did not affirmatively create the alleged defect … . Nigro v Village of Mamaroneck, 2020 NY Slip Op 03518, Second Dept 6-24-20

 

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PETITION TO STAY ARBITRATION IN THIS UNDERINSURED MOTORIST PROCEEDING WAS SERVED AFTER THE 20-DAY STATUTORY PERIOD FOR SERVICE AND WAS NOT SERVED IN THE MANNER REQUIRED BY THE STATUTE (CPLR 7503(c)); THEREFORE THE APPLICATION TO STAY ARBITRATION WAS JURISDICTIONALLY DEFECTIVE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the insurer’s (State Farm’s) notice and petition to stay arbitration was not served within the required 20 days and was not properly served. The petition therefore should have been dismissed:

… [T]he insured, Joyce Reid, sent State Farm Insurance Company (hereinafter State Farm) a demand for supplemental underinsured motorist (hereinafter SUM) arbitration, which was received by State Farm on February 14, 2019. On March 22, 2019, State Farm filed a notice of petition and petition seeking to temporarily stay the arbitration pending the completion of pre-arbitration discovery. That notice and petition were served upon counsel for Reid by first-class mail on March 22, 2019. …

CPLR 7503(c) requires that an application to stay arbitration be made within 20 days after service of a demand to arbitrate. “This limitation is strictly enforced and a court has no jurisdiction to entertain an untimely application” … . CPLR 7503(c) also directs that notice of an application to stay arbitration “shall be served in the same manner as a summons or by registered or certified mail, return receipt requested.”

… State Farm did not file its notice of petition and petition until March 22, 2019, which was beyond the 20-day statute of limitations. Consequently, the proceeding is time-barred … .

Moreover, State Farm’s notice of petition and petition to stay arbitration were served by regular first-class mail, rather than by registered or certified mail, return receipt requested. Since there was a lack of compliance with CPLR 7503(c), the present proceeding was jurisdictionally defective … . Matter of State Farm Ins. Co. v Reid, 2020 NY Slip Op 03517, Second Dept 6-24-20

 

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EDUCATIONAL NEGLECT FINDING FOR EIGHT-YEAR-OLD WAS SUPPORTED; BUT THE DERIVATIVE EDUCATIONAL NEGLECT FINDING FOR THE FOUR-MONTH-OLD WAS NOT (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, held the educational neglect finding was supported for the eight-year-old child, but the derivative educational neglect finding for four-month-old child was not supported:

The record demonstrates that the older child was absent 48 days and was late 78 other days during the 2016-2017 school year. The record also shows that the older child was reported to be failing and had previously repeated the first grade. Thus, the petitioner met its prima facie burden of establishing educational neglect of the older child by submitting unrebutted evidence of that child’s excessive absences and tardiness … . The mother’s excuses for the older child’s absences and tardiness did not constitute a reasonable justification for the child’s excessive absences and tardiness … . Moreover, the court drew the strongest negative inference against the mother for her failure to testify … .

However, under the circumstances of this case, we disagree with the Family Court’s determination that proof of the mother’s educational neglect of the older child is proof that she derivatively neglected the younger child. “Although Family Court Act § 1046(a)(i) allows evidence of abuse or neglect of one sibling to be considered in determining whether other children in the household were abused or neglected, the statute does not mandate a finding of derivative neglect” … . Here, there is no likelihood that the educational neglect of the older child, who was eight years old at the time of the proceeding, had any detrimental impact on the younger child, who was four months old at the time of the events in issue. Thus, the preponderance of the evidence did not support a finding that the mother derivatively neglected the younger child, who was not of school age or even close to being so … . Matter of Nevetia M. (Tiara M.), 2020 NY Slip Op 03515, Second Dept 6-24-20

 

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ALTHOUGH PETITIONER ULTIMATELY PREVAILED AND WAS PROVIDED WITH THE NASSAU COUNTY TRAFFIC AND PARKING VIOLATIONS AGENCY (TPVA) RECORDS PURSUANT TO ITS FREEDOM OF INFORMATION LAW (FOIL) REQUEST, BECAUSE THE TPVA PERFORMS EXEMPT ADJUDICATORY FUNCTIONS AS WELL AS NON-EXEMPT PROSECUTORIAL FUNCTIONS THE COUNTY HAD A REASONABLE BASIS FOR INITIALLY WITHHOLDING THE RECORDS; $30,000 ATTORNEY’S-FEES AWARD REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although the petitioner ultimately prevailed in its Freedom of Information Law (FOIL) action, it was not entitled to attorney’s fees. The petitioner sought records re: Nassau County’s photo speed monitoring system. The records were held by the Nassau County Traffic and Parking Violations Agency (TPVA). Initially the request was denied on the ground that the TPVA is part of the judiciary and therefore was not an “agency” within the meaning of the Public Officers Law. However, the Court of Appeals has clarified that there are aspects of the TPVA which are adjudicatory and aspects which are prosecutorial. Ultimately it was determined the sought records related to the prosecutorial function and were made available to the petitioner. The Supreme Court awarded petitioner over $30,000 in attorney’s fees. But the Second Department reversed:

We disagree with the Supreme Court’s determination to grant the petitioner’s motion for an award of attorney’s fees. Here, the petitioner “substantially prevailed” in the proceeding, inasmuch as the petitioner eventually received the documents sought from the TPVA (see Public Officers Law § 89[4][c] … ). However, the TPVA had a reasonable basis for denying the petitioner’s request for its records based on its reliance upon the Court of Appeals’ statement that “the TPVA was intended to be an arm of the District Court” … , and FOIL’s express exclusion of “judiciary” from its definition of “agency” (Public Officers Law § 86[1], [3]). Although it was ultimately determined that TPVA records concerning its nonadjudicatory responsibilities are not exempt from disclosure pursuant to the Public Officers Law, it remains that TPVA had a reasonable basis in law for withholding the requested materials … . Accordingly, the petitioner’s motion should have been denied. Matter of Law Offs. of Cory H. Morris v County of Nassau, 2020 NY Slip Op 03513, Second Dept 6-24-20

 

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FATHER HAD PAID ALL THE CHILD SUPPORT HE OWED; THE SENTENCE OF INCARCERATION SHOULD NOT HAVE BEEN IMPOSED (SECOND DEPT).

The Second Department, reversing Family Court, determined that the court should not have imposed a sentence of incarceration on father because father had paid all of the child support he owed:

We disagree … with the Family Court’s imposition of a sentence of incarceration upon its finding of willfulness since the parties agreed at the hearing that the father had paid the full amount due and owing. Although the court is empowered to impose a sentence of incarceration of up to six months for willful failure to comply with a support order (see Family Ct Act § 454[3][a] …), such incarceration may only continue until the offender complies with the support order (see Judiciary Law § 774[1] … ). Here, the court sentenced the father to a period of incarceration of 40 days, to be suspended under certain conditions, after the parties already had agreed that the father had paid all that was due and owing at that time. Under such circumstances, no period of incarceration should have been imposed … . Accordingly, since the court imposed a sentence of incarceration in contravention of Judiciary Law § 774(1), that provision of the … order must be deleted. Matter of Augliera v Araujo, 2020 NY Slip Op 03510, Second Dept 6-24-20

 

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