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THE INSURER IN THIS PERSONAL INJURY CASE DID NOT MEET ITS HEAVY BURDEN TO DEMONSTRATE ITS INSURED’S NON-COOPERATION SUCH THAT THE INSURER WAS NOT OBLIGATED TO INDEMNIFY THE INSURED; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department determined the defendant insurer, Utica. did not meet its heavy burden to demonstrate its insured’s (J & R’s) non-cooperation such that the insurer was entitled to a default judgment declaring that it is not obligated to indemnify J & R in the underlying personal injury action in which the injured plaintiff was awarded nearly $700,000. Despite numerous scheduled depositions, J & R’s principal, Singh, never appeared to be deposed and his answer was ultimately stricken:

“To effectively deny coverage based upon lack of cooperation, an insurance carrier must demonstrate (1) that it acted diligently in seeking to bring about the insured’s cooperation, (2) that the efforts employed by the insured were reasonably calculated to obtain the insured’s cooperation, and (3) that the attitude of the insured, after his or her cooperation was sought, was one of willful and avowed obstruction” … . ” [M]ere efforts by the insurer and mere inaction on the part of the insured, without more, are insufficient to establish non-cooperation'” … .

Here, Utica failed to meet its “heavy” burden of demonstrating J & R’s non-cooperatin … . In support of its motion, Utica established that between January 2009 and April 2009, more than one year before J & R’s answer was stricken, it made diligent efforts, through written correspondence, numerous telephone calls, and visits to Singh’s home, that were reasonably calculated to bring about J & R’s cooperation. Utica’s submissions, however, failed to demonstrate that the conduct of J & R constituted “willful and avowed obstruction” … . Foddrell v Utica First Ins. Co., 2019 NY Slip Op 08991, Second Dept 12-18-19

 

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THE CRITERIA FOR PRE-ANSWER DISMISSAL OF THE COMPLAINT BASED UPON DOCUMENTARY EVIDENCE AND IN THE INTEREST OF JUDICIAL ECONOMY WERE NOT MET (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s pre-answer motion to dismiss the complaint alleging the breach of a letter of intent (LOI) should not have been granted. The evidence submitted by the defendant was not “documentary” evidence within the meaning of CPLR 3211 and the defendant did not demonstrate the complaint should be dismissed in the interest of judicial economy:

… [T]he emails and the unsigned documents relied on by the Supreme Court to conclude that the LOI was an unenforceable agreement to agree were not essentially undeniable, and did not constitute documentary evidence … . Furthermore, the LOI itself contained all the essential elements of a lease, including the area to be leased, the duration of the lease, and the price to be paid … . Moreover, nothing in the LOI stated that it was not binding, and its language did not conclusively establish that the parties did not intend to be bound by it … . Accordingly, the court should have denied that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint.

… A court is permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7), and then the question becomes whether the plaintiff has a cause of action, not simply whether a cause of action is stated … . Unless the defendant can demonstrate that there is no factual issue as claimed by the plaintiff, the motion to dismiss should be denied … . Here, the defendant failed to demonstrate that there was no factual issue regarding whether the LOI can be construed as a binding contract. Accordingly, that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7) should have been denied. S & J Serv. Ctr., Inc. v Commerce Commercial Group, Inc., 2019 NY Slip Op 09049, Second Dept 12-18-19

 

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PLAINTIFF WAS ASSAULTED BY ANOTHER PATIENT IN DEFENDANT LONG-TERM CARE FACILITY; THE MEDICAL RECORDS OF THE ASSAILANT, WHO WAS NOT A PARTY, WERE PRIVILEGED AND NOT DISCOVERABLE; THE INCIDENT REPORTS PERTAINING TO THE ASSAULT WERE NOT SHOWN BY THE DEFENDANT TO BE PRIVILEGED PURSUANT TO THE PUBLIC HEALTH LAW AND WERE THEREFORE DISCOVERABLE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the assailant’s medical records were privileged, but any incident reports pertaining to the assault were not. Plaintiff alleged she was attacked while a long-term resident of defendant long-term health care facility. The assailant in this third-party assault action was not made a party:

We agree with the Supreme Court’s determination denying that branch of the plaintiffs’ motion which sought disclosure of the assailant’s admission chart. The assailant is not a party to the action, his medical records were subject to the physician-patient privilege, and he has not waived that privilege … .

However, the Supreme Court should have granted that branch of the plaintiffs’ motion which sought disclosure of all incident reports related to the assault. Pursuant to Education Law § 6527(3), certain documents generated in connection with the “performance of a medical or a quality assurance review function,” or which are “required by the Department of Health pursuant to Public Health Law § 2805-l,” are generally not discoverable … . The defendant, as the party seeking to invoke the privilege, has the burden of demonstrating that the documents sought were prepared in accordance with the relevant statutes … . Here, the defendant merely asserted that a privilege applied to the requested documents without making any showing as to why the privilege attached. Accordingly, the incident reports related to the assault were subject to disclosure. DeLeon v Nassau Health Care Corp., 2019 NY Slip Op 08989, Second Dept 12-18-19

 

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DAMAGES IN THIS TRAFFIC ACCIDENT CASE FOR A TORN MENISCUS AND IRREPARABLE DAMAGE TO PLAINTIFF’S DOMINANT HAND ($25,000 FOR PAST PAIN AND SUFFERING AND $0 FOR FUTURE PAIN AND SUFFERING) WERE INADEQUATE; PLAINTIFF’S MOTION TO SET ASIDE THE VERDICT PURSUANT TO CPLR 4404(a) SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to set aside the verdict as inadequate in this traffic accident case should have been granted. Plaintiff sustained a torn meniscus in his right knee and irreparable damage to his thumb on his dominant hand. The jury awarded $25,000 for pat pain and suffering and $0 for future pain and suffering. The Second Department held that the past pain and suffering amount should be $100,000 and the future pain and suffering amount should be $50,000:

“While the amount of damages to be awarded for personal injuries is a question for the jury, and the jury’s determination is entitled to great deference, it may be set aside if the award deviates materially from what would be reasonable compensation” … . Prior damage awards in cases involving similar injuries are not binding upon the courts, but serve to guide and enlighten them in determining whether a verdict in a given case constitutes reasonable compensation … . However, consideration should also be given to other factors, including the nature and extent of the injuries … .

Under the circumstances of this case, the jury’s award for past pain and suffering was inadequate to the extent indicated herein (see CPLR 5501[c] …). Furthermore, the jury’s failure to award any damages for future pain and suffering was not based upon a fair interpretation of the evidence … , and was inadequate to the extent indicated herein … . Cullen v Thumser, 2019 NY Slip Op 08988, Second Dept 12-18-19

 

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THE INSURANCE LAW REQUIRED SUBMITTING THE DISPUTE BETWEEN TWO CARRIERS TO ARBITRATION; THEREFORE SUPREME COURT DID NOT HAVE SUBJECT MATTER JURISDICTION OVER THE MATTER; THE LACK OF SUBJECT MATTER JURISDICTION CAN BE RAISED AT ANYTIME (SECOND DEPT).

The Second Department, reversing Supreme Court in this traffic accident case, determined the Insurance Law required that the matter involving a coverage dispute between two insurance carriers (Repwest and Hereford) be submitted to arbitration. Therefore Supreme Court did not have subject matter jurisdiction:

The defendants … were passengers in the livery vehicle and no-fault benefits were paid on their behalf by Hereford. Repwest alleged that there is no coverage for the subject incident because it was not an accident, but rather the result of an intentional act/fraudulent scheme. Thereafter, Hereford interposed an answer to the complaint and asserted a counterclaim against Repwest, among others, for loss transfer pursuant to Insurance Law § 5105(a) … .

Pursuant to Insurance Law § 5105(b), “[t]he sole remedy of any insurer or compensation provider to recover on a claim arising pursuant to subsection (a) hereof, shall be the submission of the controversy to mandatory arbitration pursuant to procedures promulgated or approved by the superintendent” … . Contrary to Hereford’s contention, since its counterclaim is for loss transfer pursuant to section 5105(a), the counterclaim is subject to mandatory arbitration and the Supreme Court had no subject matter jurisdiction over the counterclaim … .

Although Repwest did not seek dismissal of the counterclaim in the Supreme Court, “a court’s lack of subject matter jurisdiction is not waivable, but may be [raised] at any stage of the action, and the court may, ex mero motu [on its own motion], at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action” … . Repwest Ins. Co. v Hanif, 2019 NY Slip Op 09047, Second Dept 12-18-19

 

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DEFENDANT’S CONVICTION OF ATTEMPTED ENDANGERING THE WELFARE OF A CHILD DID NOT MEET THE CRITERIA FOR THE ASSESSMENT OF 30 POINTS UNDER RISK FACTOR 9; DEFENDANT WAS THEREFORE A PRESUMPTIVE LEVEL ONE; HAD THE PEOPLE KNOWN DEFENDANT WAS PRESUMPTIVE LEVEL ONE THEY WOULD HAVE SOUGHT AN UPWARD DEPARTURE; MATTER REMITTED FOR A NEW DETERMINATION (SECOND DEPT).

The Second Department determined defendant’s conviction of attempted endangering the welfare of a child did not meet the criteria for assessing 30 points under risk factor 9, and therefore defendant should have been assessed at a presumptive level one. The People argued that had the defendant been assessed at a presumptive level one they would have sought an upward department based on aggravating factors. The matter was remitted for a new determination:

Risk factor 9 requires the assessment of 30 points where “[t]he offender has a prior criminal history that includes a conviction or adjudication for the class A felonies of Murder, Kidnaping or Arson, a violent felony, a misdemeanor sex crime, or endangering the welfare of a child, or any adjudication for a sex offense” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [hereinafter Guidelines], risk factor 9 [2006]). Here, as the defendant contends, the Supreme Court should not have assessed 30 points under risk factor 9 based on his prior conviction for attempted endangering the welfare of a child inasmuch as that conviction was neither for a felony, nor for a “sex offense” (Correction Law § 168-a[2]), “nor a conviction for actually endangering the welfare of a child” … . Accordingly, only 5 points could be assigned under risk factor 9 for “[p]rior history/no sex crimes or felonies,” resulting in a total score of less than 70 points, a presumptive risk level one … . People v Lewis, 2019 NY Slip Op 09045, Second Dept 12-18-19

 

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PROOF OF MULTIPLE INSTANCES OF SEXUAL CONTACT INSUFFICIENT; RISK ASSESSMENT REDUCED TO LEVEL ONE (SECOND DEPT).

The Second Department, reducing defendant’s risk assessment to level one, determined the proof of multiple instances of sexual contact was insufficient:

… [T]he People failed to meet their burden of proof with respect to risk factor 4. Although the People submitted evidence, in the form of the defendant’s statements, that he engaged in sexual contact with the victim on three or four occasions, they failed to submit any evidence as to when these instances of sexual contact occurred relative to one another, so as to demonstrate that such instances were separated in time by at least 24 hours, as the People claimed … . Accordingly, the Supreme Court should not have assessed 20 points under risk factor 4. People v Jarama, 2019 NY Slip Op 09044, Second Dept 12-18-19

 

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PROOF OF GENERAL INSPECTION PRACTICES DOES NOT DEMONSTRATE THE ABSENCE OF CONSTRUCTIVE NOTICE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS ICE-ON-SIDEWALK SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property-owner’s (Colonial’s) motion for summary judgment should not have been granted in this ice-on-sidewalk slip and fall case:

“To meet its initial burden on the issue of lack of constructive notice, [a] defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … . Here, Colonial failed to establish, prima facie, that it did not have constructive notice of the alleged patch of ice. The deposition testimony of the president of its board of managers merely referred to general inspection practices, and provided no evidence regarding any specific inspection of the subject area prior to the plaintiff’s fall … . Carro v Colonial Woods Condominiums, 2019 NY Slip Op 08986, Second Dept 12-18-19

 

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IRRELEVANT PHOTOGRAPHS WERE ADMITTED SOLELY TO AROUSE THE EMOTIONS OF THE JURY; THE PROSECUTOR’S REMARKS IN SUMMATION WERE SIMILARLY IMPROPER; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the photographs of the complainant’s genitals and anus were irrelevant and should not have been admitted in this sex-offense case. In addition, the court criticized the prosecutor’s remarks in summation (unpreserved errors):

“Photographic evidence should be excluded only if its sole purpose is to arouse the emotions of the jury and to prejudice the defendant” … . Here, the complainant’s pediatrician, who was called as a witness by the prosecutor, testified that there were no injuries to the complainant’s genitals or anus, and that she did not expect to see any injury based upon the complainant’s report. Nevertheless, the prosecutor then asked the pediatrician to approach the jurors and display the photographs to them. Under the circumstances of this case, the photographs were irrelevant, and served no purpose other than to inflame the emotions of the jury and to introduce into the trial an impermissible sympathy factor … . The error was then compounded when the prosecutor argued in summation that the complainant had to “get on a table and open up her legs and have her genitals photographed to be shown to 15 strangers . . . What did she gain out of this? Nothing.” The improper admission of the photographs cannot be deemed harmless under the circumstances of this case … .

Since there must be a new trial, we note that, although the issue is unpreserved for appellate review, the prosecutor engaged in multiple instances of improper conduct during summation … . For instance, the prosecutor attempted to arouse the sympathies of the jurors … . Additionally, while discussing the character of the defendant, who was a church pastor at the time of trial, the prosecutor referenced the sexual abuse scandals involving the Catholic Church and Orthodox Jewish communities. The prosecutor also pointed out that during jury selection, a prospective juror expressed that she did not feel comfortable sitting on this case because of all the priests who have gotten away with child abuse, and that another prospective juror stated that a family member was raped by a member of the clergy. “[I]n summing up to the jury, counsel must stay within the four corners of the evidence and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused” … . People v Lewis, 2019 NY Slip Op 09023, Second Dept 12-18-19

 

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MATTER REMITTED FOR A REOPENED SUPPRESSION HEARING BASED UPON NEW EVIDENCE THAT THE VEHICLE STOP MAY HAVE BEEN BASED UPON INFORMATION FROM AN ANONYMOUS BYSTANDER (SECOND DEPT).

The Second Department, remitting the matter for a reopened suppression hearing, determined the hearing was warranted by new information that the stop of defendant’s vehicle may have been based on information from an anonymous source. The defendant had already been convicted of attempted robbery twice after a reversal:

We agree with the defendant that the Supreme Court should have granted his motion to reopen the suppression hearing on those branches of his omnibus motion which were to suppress physical evidence recovered as a result of the stop of the livery car and the identification evidence that followed the stop pursuant to CPL 710.40(4). CPL 710.40(4) permits a court to reopen a suppression hearing if additional pertinent facts have been discovered which the defendant could not have discovered with reasonable diligence before the determination of the original suppression motion … . The additional facts discovered need not necessarily be “outcome-determinative or essential'”; instead, they must be “pertinent” in that they “would materially affect or have affected” the earlier suppression ruling … . Here, the revelation that the livery car description may have come from an anonymous bystander who interjected while translating between the complainant and the sergeant at the scene was previously unknown, and because the sergeant did not previously testify in the case, could not have been discovered with due diligence by the defendant. The information that the livery car description came from an unidentified and anonymous bystander would have affected the earlier suppression determination by placing squarely before the court questions regarding the identity and reliability of the person who described the livery car … . People v Dunbar, 2019 NY Slip Op 09018, Second Dept 12-18-19

 

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