You are here: / THREE AND A HALF MONTH DELAY IN NOTIFYING THE INSURER OF THE LAWSUIT VIOLATED...

Search Results

/ , ,

THREE AND A HALF MONTH DELAY IN NOTIFYING THE INSURER OF THE LAWSUIT VIOLATED THE POLICY PROVISION REQUIRING NOTICE AS SOON AS PRACTICABLE; THE DISCLAIMER MAILED 29 DAYS AFTER NOTICE OF THE SUIT WAS RECEIVED BY THE INSURER WAS TIMELY AND PRECLUDED SUIT AGAINST THE INSURER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant did not timely notify the insurer of the action and the insurer’s disclaimer on that ground was timely. Plaintiff alleged she was sexually assaulted by defendant Braun, an employee of defendant APS. Braun received the summons and complaint on October 31, 2008. Braun was deemed an agent of his employer APS. The insurer was not notified of the suit until February 12, 2009. The disclaimer was mailed on March 16, 2009. The claim was settled with the defendants for more than $3 million. Plaintiff then sued the insurer:

Braun’s receipt of the October 31, 2008, letter with the summons and complaint was within the scope of his employment as an officer of APS, and, as an insured under the policies, he had a duty to notify the insurers of the claim … . Moreover, given that the plaintiff, and not APS, was the victim of Braun’s conduct, there is no adversity to negate the imputation of Braun’s knowledge to the corporation [i.e., the adverse interest exception did not apply]. …

Since APS had knowledge of the claim against it as of October 31, 2008, but did not give notice to the insurers until February 12, 2009, it failed to provide notice as soon as practicable, in violation of the policy conditions … . …

Here, the insurers timely disclaimed coverage following a thorough and diligent investigation. Contrary to the plaintiff’s contention, the insurers did not have all the information they needed to disclaim coverage on February 12, 2009, and they properly commenced an investigation to determine the specifics surrounding the incident and to verify when APS first acquired knowledge of the claim … . Issuance of the disclaimers 29 days after the insurers’ receipt of notice was therefore reasonable as a matter of law under the circumstances. Plotkin v Republic-Franklin Ins. Co., 2019 NY Slip Op 08233, Second Dept 11-13-19

 

/ ,

DEFENDANT WAS NOT INFORMED THAT THE SENTENCE WOULD INCLUDE POSTRELEASE SUPERVISION AT THE TIME OF THE PLEA, ALTHOUGH HE WAS INFORMED THE SENTENCE PROMISE WAS CONDITIONED UPON NO FURTHER ARRESTS; DEFENDANT WAS ARRESTED TWICE BEFORE SENTENCING AND AN ENHANCED SENTENCE, INCLUDING POSTRELEASE SUPERVISION, WAS IMPOSED; PLEA WAS NOT VOLUNTARY; ERROR APPEALABLE DESPITE LACK OF PRESERVATION (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined that the plea was not voluntary because defendant was not informed that the sentence would include a period of postrelease supervision. At the time of the plea, defendant was told the 1 – 3 1/2 year sentence promise was conditioned upon no additional arrests. Defendant was arrested twice before sentencing. The court imposed an enhanced sentence which included a period of postrelease supervision which was not mentioned at the time of the plea. The error was appealable despite the lack of preservation:

Contrary to the People’s contention, the defendant was not required to preserve for appellate review his current claim that his plea of guilty was not knowingly, voluntarily, and intelligently entered based on the County Court’s failure to mention the postrelease supervision component of his sentence at the plea proceeding, since he had no knowledge of, or opportunity to challenge, that portion of his sentence prior to its imposition … . …

… [T]he record reflects that the defendant was not made aware at the time he entered his plea that the terms of his sentence would include a period of postrelease supervision … , nor did he have a sufficient opportunity to move to withdraw his plea on that basis before the court imposed sentence … . Accordingly, the judgment must be reversed, the plea of guilty vacated … . People v Walton, 2019 NY Slip Op 08230, Second Dept 11-13-19

 

/ , ,

BURGLARY AS A SEXUALLY MOTIVATED OFFENSE FIRST DEGREE IS NOT A REGISTERABLE OFFENSE UNDER SORA; A SEX OFFENDER CLASSIFICATION IS APPEALABLE WHEN THE ERROR IS NOT PRESERVED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice LaSalle, determined that burglary as a sexually motivated felony first degree (Penal Law 140.30[2]) is not a registerable offense under SORA, the result of an apparently unintended omission from the Correction Law. Defendant had attempted to rape the victim after breaking into her house. The court noted that a sex offender classification is appealable even when the alleged error is not preserved:

… [W]hen looking first at the statutory text of Correction Law § 168-a(2)(a), we find that the language employed is clear and unambiguous. As written, subparagraph (iii) of section 168-a(2)(a) specifically defines a sex offense as “a conviction of or a conviction for an attempt to commit any provisions of the foregoing sections committed or attempted . . . as a sexually motivated felony defined in section 130.91 of such law.” Thus, as the defendant contends, according to the language of the statute as amended, burglary in the first degree as a sexually motivated felony is not a registerable sex offense under SORA. While this may not have been the intent of the Legislature, the omission of a critical grammatical signpost or a parenthetical number preceding “as a sexually motivated felony” clearly limits the qualifying sexually motivated felony offenses only to those enumerated in subparagraphs (i) and (ii) … . “The maxim expressio unius est exclusio alterius is applied in the construction of the statutes, so that where a law expressly describes a particular act, thing or person to which it shall apply,  an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” … . People v Buyund, 2019 NY Slip Op 08207, Second Dept 11-13-19

 

/ ,

BANKRUPTCY TRUSTEE PROPERLY SUBSTITUTED FOR PLAINTIFF IN A PERSONAL INJURY ACTION, DESPITE PLAINTIFF’S FAILURE TO LIST THE ACTION AS AN ASSET IN HIS VOLUNTARY PETITION FOR CHAPTER 7 BANKRUPTCY (SECOND DEPT).

The Second Department determined the bankruptcy trustee was properly substituted, by the Bankruptcy Court, for plaintiff in a personal injury action, despite the fact that the action had not been listed as an asset when plaintiff filed a voluntary petition for chapter 7 bankruptcy:

The rule that a substitution cannot be made is grounded in Reynolds v Blue Cross of Northeastern N.Y., Inc. (210 AD2d 619). In that case, the plaintiffs commenced an action against the defendants to recover damages for personal injuries. Thereafter, the plaintiffs filed a voluntary petition for chapter 7 bankruptcy, and failed to list the action on the schedule of assets. After the plaintiffs were discharged from bankruptcy, the defendants moved to dismiss the complaint, alleging that the plaintiff lacked the capacity to sue. During the pendency of the motion, the plaintiffs moved in the Bankruptcy Court to reopen the bankruptcy proceeding and to have a successor trustee appointed. A successor trustee was appointed, and both the plaintiffs and the interim trustee opposed the defendants’ motion to dismiss. The Appellate Division, 3rd Department, determined that substitution was not available to cure the deficiency, on the ground that a party with no capacity to sue could not be replaced with one who had the capacity to sue, citing Matter of C & M Plastics (Collins) (168 AD2d 160, 161-162). However, in Matter of C & M Plastics (Collins), the proceeding in the Supreme Court was commenced after a bankruptcy petition was filed; therefore, in that case, the plaintiff did not have capacity to sue at the time of the commencement of the action.

Although subsequent cases have held that a substitution of the bankruptcy trustee for the plaintiff cannot be made, even if the plaintiff had the capacity to sue at the time the action or proceedings was commenced (see Rivera v Markowitz, 71 AD3d 449, 450; Pinto v Ancona, 262 AD2d 472), other cases have held that where a motion for substitution was made at the direction of a bankruptcy court, the motion should be granted, as a matter of comity (see Berry v Rampersad, 21 Misc 3d 851 [Sup Ct, Kings County]). … As a matter of comity, and in deference to the determination of the Bankruptcy Court, we agree with the Supreme Court’s determination to grant the plaintiff’s cross motion, inter alia, to substitute the bankruptcy trustee as the plaintiff, and to deny the defendants’ motion for leave to amend their answer to assert the affirmative defense of lack of capacity to sue, and thereupon, to dismiss the complaint. Fausset v Turner Constr. Co., 2019 NY Slip Op 08173, Second Dept 11-13-19

 

/ ,

PLAINTIFF COLLEGE SOCCER PLAYER ASSUMED THE RISK OF INJURY FROM BEING STRUCK IN THE HEAD BY A SOCCER BALL, SUFFERING A CONCUSSION, AND THEREAFTER BEING LEFT IN THE GAME, ALLEGEDLY EXACERBATING THE INJURY (SECOND DEPT).

The Second Department determined that plaintiff, a college soccer player, assumed the risk of injury caused by being struck in the head by a soccer ball:

As to the Molloy College defendants and the referee defendants, the plaintiff alleged that they were negligent in, among other things, not removing him from the match after he was struck in the head with the soccer ball in the 10th minute of the match. The plaintiff contended that, because he was left in the match after he sustained a concussion on the initial blow to the head, he was exposed to an increased risk of injury, which exacerbated or worsened his injuries or symptoms beyond the initial concussion. * * *

Under the circumstances of this case, the doctrine of primary assumption of risk is applicable and bars the plaintiff’s recovery against both the Molloy College defendants and the referee defendants. The evidence relied upon in support of the respective motions of the Molloy College defendants and the referee defendants demonstrated, prima facie, that they had no reason to believe that the plaintiff had sustained a concussion and that the plaintiff assumed the risks of any injuries to his head or brain stemming from being hit in the head by a soccer ball during the course of play by voluntarily participating in the soccer match … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether any actions or inactions on the part of the Molloy College defendants or the referee defendants unreasonably increased the risk of injury normally associated with playing soccer … . Calderone v College, 2019 NY Slip Op 08169, Second Dept 11-13-19

 

/ ,

CENTURY-OLD ELEVATOR MUST BE REPLACED, DESPITE THE COST AND DESPITE THE APPARENT FACT THAT ONLY ONE OF FOUR TENANTS USED THE ELEVATOR (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Tom, determined the ruling by the NYS Department of Housing and Community Renewal (DHCR) ruling requiring the landlord to provide elevator service was not irrational and must be upheld. The century-old elevator needed replacement at a cost of $150,000. Apparently the building has four tenants, and only one used the elevator. The opinion is comprehensive and cannot be fairly summarized here:

DHCR in its 2017 determination interpreted its own regulations to require that if elevator service was required under the Loft Law, it was also required under the Rent Stabilization Code upon the transition of the building to rent stabilization. This interpretation by DHCR of its own regulations should be upheld to the extent it is rational and not an arbitrary and capricious reliance on the facts of the case … . Certain facts are unclear regarding if and when the elevator broke down, or when the landlord acted on a decision to terminate operations. However … that would seem not to matter under these circumstances. Since elevator service had been provided while the building was regulated as an interim multiple dwelling, that service had to be continued without regard to the economic ramifications. In this sense, the cost to the landlord is not a factor that would displace the regulatory requirements and would not support setting aside the DHCR determination. * * *

… [W]e cannot conclude that DHCR was arbitrary and capricious in its evaluation of the relevant facts or irrational in concluding that in whatever manner elevator service was terminated, that action in the absence of DHCR’s approval was inconsistent with rent stabilization, and that elevator service, as a required service, had to be restored. Matter of Leonard St. Props. Group, Ltd. v New York State Div. of Hous. & Community Renewal, 2019 NY Slip Op 08165, First Dept 11-12-19

 

/ ,

CLAIMANT COULD NOT SEEK COMPENSATION FOR PERIODIC FLOODING OF HIS LOT UNDER THE EMINENT DOMAIN PROCEDURE LAW; THERE WAS NO DE JURE TAKING BY THE CITY, AND THE CRITERIA FOR INVERSE CONDEMNATION WERE NOT MET (FIRST DEPT).

The First Department, reversing Supreme Court, determined claimant’s action for damages based upon the periodic flooding claimant’s lot, over which the city had an easement, should have been dismissed. Claimant alleged the city had appropriated the easement by causing flooding:

… Claimant filed a notice of claim pursuant to Eminent Domain Procedure Law (EDPL) § 503, asserting a claim for appropriation of an easement over its lot. In 2015, claimant alleged for the first time that the bridge construction was causing flooding of its property. In 2017, claimant submitted the appraisal at issue in this appeal, prepared by Cushman & Wakefield, which determined that during a 31-month period from November 2014 through May 2017, claimant’s property and the non-exclusive access easement became flooded after rainfall. It attributed the flooding to a drainage pipe in the access easement area that became blocked by cement during construction of the new bridge. The appraisal provides that subsequent to the discovery of the flooding, claimant leased out its property and received rental income. Claimant’s alleged flooding damages, as set forth in the appraisal, consist of reduced rental income and the inability to develop residential towers on the property. * * *

Because claimant’s property was not subject to a de jure taking by the City, it may not pursue a claim to recover just compensation or consequential damages resulting from the flooding in this eminent domain valuation proceeding … . * * *

“In a modern inverse condemnation action, an owner whose property has been taken de facto may sue the entity that took it to obtain just compensation, and if the action is successful the defendant has no choice in the matter — the compensation must be paid” … .

The claim here for inverse condemnation is legally flawed, since the interference with claimant’s property rights, as set forth in its own appraisal report, is not sufficiently permanent to constitute a de facto taking as a matter of law … . Matter of Willis Ave. Bridge Replacement, 2019 NY Slip Op 08162, First Dept 11-12-19

 

/ ,

DISCOVERY OF DEFENDANT’S SOURCE CODE, A TRADE SECRET, SHOULD HAVE BEEN ORDERED FOR “ATTORNEYS AND EXPERT EYES ONLY” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the discovery-production of defendant’s source code, a trade secret, should have been for “attorneys and expert eyes only.”

The production of defendants’ source code, which is a trade secret … , should have been ordered to be produced for “attorneys and expert eyes only” … . Plaintiffs’ assertion that they have the expertise to review and opine on the source code and should not be subjected to retaining an expert, does not support unfettered access to defendants’ confidential algorithm. BEC Capital, LLC v Bistrovic, 2019 NY Slip Op 08144, First Dept 11-12-19

 

/

CHILD SUPPORT ARREARS PROPERLY AWARDED TO MOTHER, BUT THE AMOUNT SHOULD HAVE BEEN CALCULATED THROUGH THE HEARING DATE (FIRST DEPT).

The First Department noted that, although child support arrears were properly awarded to petitioner (mother), the amount of the arrears should have been calculated through the date of the hearing:

By submitting evidence that respondent [father] was delinquent in his support payments … , petitioner established prima facie that respondent willfully violated his child support obligations. Respondent failed to rebut this prima facie showing by presenting evidence of his inability to pay … . He testified to a loss of income but failed to provide evidence of either his lost employment or his efforts to find new employment  … . Further, contrary to respondent’s contention, whether respondent eventually satisfied his arrears has no bearing on the court’s finding of willfulness …  , particularly in light of his previous violations of his support obligations. …

Petitioner correctly argues that child support arrears accrued through the date of the hearing on remand, and should be included in the award of arrears, as required by Family Court Act § 459 and in the children’s best interests . Therefore, we remand for recalculation of the amount in arrears … . Matter of Eve S.P. v Steven N.S., 2019 NY Slip Op 08130, First Dept 11-12-19

 

/ ,

QUESTION OF FACT WHETHER LANDLORD KNEW OF THE DOG’S PRESENCE IN THE BUILDING AND WAS AWARE OF THE DOG’S VICIOUS PROPENSITIES, COMPLAINT AGAINST THE LANDLORD SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s dog-bite complaint against the landlord (New York City Housing Authority [NYCHA]) should not have been dismissed. Plaintiff alleged she was returning to her building after walking her dog when she was bitten by an unleashed pit bull owned by another resident of the building:

To hold a defendant landlord liable for injuries sustained in a dog bite incident, the plaintiff must establish the landlord’s knowledge of the dog’s presence, and its vicious propensities … . Knowledge of vicious propensities may be established by proof of prior acts of a similar kind of which the defendant had notice … .

Here, viewing the evidence in the light most favorable to plaintiff as the nonmoving party, the record presents triable issues of fact regarding NYCHA’s notice of the dog’s presence and its vicious propensities. NYCHA’s manager at the subject building testified that NYCHA had no knowledge of prior dog bite incidents. However, NYCHA’s internal records show that a dog bite occurred at the building about three months prior to the attack on plaintiff. While that internal document does not identify the dog or its owner involved in the prior attack and NYCHA’s manager stated that NYCHA does not keep records of complaints involving vicious animals, plaintiff testified that she had seen third-party defendant with the dog on several prior occasions, and that the dog acted aggressively … . Almodovar v New York City Hous. Auth., 2019 NY Slip Op 08129, First Dept 11-12-19

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy