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LEGAL GUARDIAN’S PETITION TO ADOPT CHILD SHOULD NOT HAVE BEEN DENIED BASED SOLELY UPON THE GUARDIAN’S CRIMINAL HISTORY (SECOND DEPT).

The Second Department, reversing Family Court, determined the legal guardian’s petition to adopt the child should not have been denied solely based upon petitioner’s criminal history. The criminal history was 20 years old and petitioner had been the child’s legal guardian for five years:

A court must determine whether a proposed adoption is in the best interests of the child … . The court should consider all the relevant factors … . “[P]erfection is not demanded of adoptive parents” … , and “even an unacceptable record of misconduct by adoptive parents may be mitigated by evidence that the proposed adoptive child is healthy and happy and considers petitioners to be his [or her] parents” … .

Here, the Family Court erred in determining that the adoption was not in the child’s best interests based solely on the petitioner’s criminal history. The court should have received evidence and considered other factors relevant to the issue. This is particularly true since the petitioner had been appointed the child’s permanent guardian and had served in that role for over five years, which was most of the child’s life, and all of the petitioner’s convictions occurred more than 20 years before he commenced this proceeding … . Matter of Isabella (Charles O.), 2018 NY Slip Op 01309, Second Dept 2-28-18

FAMILY LAW (ADOPTION, LEGAL GUARDIAN’S PETITION TO ADOPT CHILD SHOULD NOT HAVE BEEN DENIED BASED SOLELY UPON THE GUARDIAN’S CRIMINAL HISTORY (SECOND DEPT))/ADOPTION ( LEGAL GUARDIAN’S PETITION TO ADOPT CHILD SHOULD NOT HAVE BEEN DENIED BASED SOLELY UPON THE GUARDIAN’S CRIMINAL HISTORY (SECOND DEPT))

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PLAINTIFF’S NEGLIGENCE ACTION AGAINST A SECURITY COMPANY HIRED BY KMART SHOULD HAVE BEEN DISMISSED, PLAINTIFF WAS INJURED IN A FIGHT WITH A KMART EMPLOYEE, PLAINTIFF WAS NOT A THIRD PARTY BENEFICIARY OF THE CONTRACT BETWEEN KMART AND THE SECURITY COMPANY, PLAINTIFF DID NOT RELY ON THE PERFORMANCE OF THE SECURITY COMPANY’S DUTIES, AND THE SECURITY COMPANY DID NOT FULLY DISPLACE KMART’S DUTY TO PROVIDE SECURITY (ESPINAL FACTORS) (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiff’s negligence action against a security company (US Security) hired by Kmart did not state a cause of action for tort liability stemming from a contract (Espinal criteria). Plaintiff was injured in a fight with a Kmart employee in a Kmart store. The First Department held that plaintiff was not a third party beneficiary of the contract between Kmart and US Security, did not rely to his detriment on the performance of US Security’s duties, and US Security did not entirely supplant Kmart’s duty to secure the store:

Plaintiff was not an intended third-party beneficiary of the contract between Kmart and U.S. Security, which contains a “No Third Party Beneficiaries” clause … .

Nor can a duty be imposed on U.S. Security on the ground either that plaintiff relied to his detriment on the continued performance of U.S. Security’s contractual duties or that U.S. Security had entirely displaced Kmart’s duty to secure its store … . Plaintiff’s affidavit says nothing about having knowledge of the contract between Kmart and U.S. Security or about detrimental reliance on U.S. Security’s continued performance thereunder … .

As for entire displacement, while the written scope of U.S. Security’s services included “the protection of … customers … in the Premises,” the deposition testimony of the loss prevention manager at the relevant Kmart store makes it clear that, in actual practice, U.S. Security’s services at that store were limited to deterring shoplifting … . Furthermore, U.S. Security did not totally displace Kmart’s duty to secure its store, because Kmart retained supervisory authority over the security guards and required U.S. Security’s staff to complete training in accordance with its (Kmart’s) safety policies and procedures … . Santiago v K Mart Corp., 2018 NY Slip Op 01296, First Dept 2-27-18

NEGLIGENCE (THIRD PARTY ASSAULT, SECURITY COMPANY, PLAINTIFF’S NEGLIGENCE ACTION AGAINST A SECURITY COMPANY HIRED BY KMART SHOULD HAVE BEEN DISMISSED, PLAINTIFF WAS INJURED IN A FIGHT WITH A KMART EMPLOYEE, PLAINTIFF WAS NOT A THIRD PARTY BENEFICIARY OF THE CONTRACT BETWEEN KMART AND THE SECURITY COMPANY, PLAINTIFF DID NOT RELY ON THE PERFORMANCE OF THE SECURITY COMPANY’S DUTIES, AND THE SECURITY COMPANY DID NOT FULLY DISPLACE KMART’S DUTY TO PROVIDE SECURITY (FIRST DEPT))/ASSAULT, LIABILITY FOR THIRD PARTY (SECURITY COMPANY, PLAINTIFF’S NEGLIGENCE ACTION AGAINST A SECURITY COMPANY HIRED BY KMART SHOULD HAVE BEEN DISMISSED, PLAINTIFF WAS INJURED IN A FIGHT WITH A KMART EMPLOYEE, PLAINTIFF WAS NOT A THIRD PARTY BENEFICIARY OF THE CONTRACT BETWEEN KMART AND THE SECURITY COMPANY, PLAINTIFF DID NOT RELY ON THE PERFORMANCE OF THE SECURITY COMPANY’S DUTIES, AND THE SECURITY COMPANY DID NOT FULLY DISPLACE KMART’S DUTY TO PROVIDE SECURITY (FIRST DEPT))/ESPINAL (THIRD PARTY ASSAULT LIABILITY, SECURITY COMPANY, PLAINTIFF’S NEGLIGENCE ACTION AGAINST A SECURITY COMPANY HIRED BY KMART SHOULD HAVE BEEN DISMISSED, PLAINTIFF WAS INJURED IN A FIGHT WITH A KMART EMPLOYEE, PLAINTIFF WAS NOT A THIRD PARTY BENEFICIARY OF THE CONTRACT BETWEEN KMART AND THE SECURITY COMPANY, PLAINTIFF DID NOT RELY ON THE PERFORMANCE OF THE SECURITY COMPANY’S DUTIES, AND THE SECURITY COMPANY DID NOT FULLY DISPLACE KMART’S DUTY TO PROVIDE SECURITY (FIRST DEPT))/SECURITY COMPANIES (LIABILITY FOR THIRD PARTY ASSAULT, PLAINTIFF’S NEGLIGENCE ACTION AGAINST A SECURITY COMPANY HIRED BY KMART SHOULD HAVE BEEN DISMISSED, PLAINTIFF WAS INJURED IN A FIGHT WITH A KMART EMPLOYEE, PLAINTIFF WAS NOT A THIRD PARTY BENEFICIARY OF THE CONTRACT BETWEEN KMART AND THE SECURITY COMPANY, PLAINTIFF DID NOT RELY ON THE PERFORMANCE OF THE SECURITY COMPANY’S DUTIES, AND THE SECURITY COMPANY DID NOT FULLY DISPLACE KMART’S DUTY TO PROVIDE SECURITY (FIRST DEPT))/CONTRACT, TORT LIABILITY BASED UPON PLAINTIFF’S NEGLIGENCE ACTION AGAINST A SECURITY COMPANY HIRED BY KMART SHOULD HAVE BEEN DISMISSED, PLAINTIFF WAS INJURED IN A FIGHT WITH A KMART EMPLOYEE, PLAINTIFF WAS NOT A THIRD PARTY BENEFICIARY OF THE CONTRACT BETWEEN KMART AND THE SECURITY COMPANY, PLAINTIFF DID NOT RELY ON THE PERFORMANCE OF THE SECURITY COMPANY’S DUTIES, AND THE SECURITY COMPANY DID NOT FULLY DISPLACE KMART’S DUTY TO PROVIDE SECURITY (FIRST DEPT))/CONTRACT LAW (TORT LIABILITY STEMMING FROM, ESPINAL CRITERIA, PLAINTIFF WAS INJURED IN A FIGHT WITH A KMART EMPLOYEE, PLAINTIFF WAS NOT A THIRD PARTY BENEFICIARY OF THE CONTRACT BETWEEN KMART AND THE SECURITY COMPANY, PLAINTIFF DID NOT RELY ON THE PERFORMANCE OF THE SECURITY COMPANY’S DUTIES, AND THE SECURITY COMPANY DID NOT FULLY DISPLACE KMART’S DUTY TO PROVIDE SECURITY (FIRST DEPT))

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PROPERTY OWNER LIABLE FOR PLAINTIFF’S FALL FROM A LADDER (UNDER LABOR LAW 240 (1)) WHILE WORKING FOR A TENANT, EVEN IF THE OWNER WAS NOT AWARE THE TENANT HIRED THE PLAINTIFF, WHERE ONLY HEARSAY EVIDENCE IS OFFERED IN OPPOSITION TO SUMMARY JUDGMENT, A QUESTION OF FACT IS NOT RAISED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) claim based upon a fall from a ladder. The court noted that the property owner was liable even if the property owner was unaware the plaintiff had been hired by a tenant (here a deli, also a defendant). The deli owner had provided the A-frame ladder which moved side to side and fell to the ground. The court noted that the defendant owner’s opposition papers were entirely hearsay, which cannot defeat summary judgment:

Plaintiff’s fall from an unsecured ladder establishes a violation of the statute …  for which defendant property owner is liable, even if the tenant contracted for the work without the owner’s knowledge … . Plaintiff sufficiently identified the location of the deli at his deposition, and also stated that the deli owner offered him money to paint the sign.

In opposition, defendant failed to raise an issue of fact sufficient to defeat summary judgment. The statements of the owner of the deli and the deli worker were unsworn and inadmissible as hearsay. It should be noted that in the over 2 ½ years since the statements were taken, defendant never attempted to obtain affidavits from these witnesses or attempted to depose them, proffering their statements only after plaintiff had moved for summary judgment. Indeed, in its responses to discovery requests, defendant affirmatively represented that it was “not presently in possession of any statements from witnesses to the accident.”

While hearsay statements may be offered in opposition to a motion for summary judgment, hearsay statements cannot defeat summary judgment “where it is the only evidence upon which the opposition to summary judgment is predicated” … . Gonzalez v 1225 Ogden Deli Grocery Corp., 2018 NY Slip Op 01280, First Dept 2-27-18

LABOR LAW-CONSTRUCTION LAW (PROPERTY OWNER LIABLE FOR PLAINTIFF’S FALL FROM A LADDER UNDER LABOR LAW 240 (1) WHILE WORKING FOR A TENANT, EVEN IF THE OWNER WAS NOT AWARE THE TENANT HIRED THE PLAINTIFF, WHERE ONLY HEARSAY EVIDENCE IS OFFERED IN OPPOSITION TO SUMMARY JUDGMENT, A QUESTION OF FACT IS NOT RAISED (FIRST DEPT))/EVIDENCE (SUMMARY JUDGMENT, HEARSAY, PROPERTY OWNER LIABLE FOR PLAINTIFF’S FALL FROM A LADDER UNDER LABOR LAW 240 (1) WHILE WORKING FOR A TENANT, EVEN IF THE OWNER WAS NOT AWARE THE TENANT HIRED THE PLAINTIFF, WHERE ONLY HEARSAY EVIDENCE IS OFFERED IN OPPOSITION TO SUMMARY JUDGMENT, A QUESTION OF FACT IS NOT RAISED (FIRST DEPT))/HEARSAY (SUMMARY JUDGMENT, PROPERTY OWNER LIABLE FOR PLAINTIFF’S FALL FROM A LADDER UNDER LABOR LAW 240 (1) WHILE WORKING FOR A TENANT, EVEN IF THE OWNER WAS NOT AWARE THE TENANT HIRED THE PLAINTIFF, WHERE ONLY HEARSAY EVIDENCE IS OFFERED IN OPPOSITION TO SUMMARY JUDGMENT, A QUESTION OF FACT IS NOT RAISED (FIRST DEPT))/SUMMARY JUDGMENT (HEARSAY, PROPERTY OWNER LIABLE FOR PLAINTIFF’S FALL FROM A LADDER UNDER LABOR LAW 240 (1) WHILE WORKING FOR A TENANT, EVEN IF THE OWNER WAS NOT AWARE THE TENANT HIRED THE PLAINTIFF, WHERE ONLY HEARSAY EVIDENCE IS OFFERED IN OPPOSITION TO SUMMARY JUDGMENT, A QUESTION OF FACT IS NOT RAISED (FIRST DEPT))

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ALTHOUGH THE PEDESTRIAN-CAR ACCIDENT OCCURRED ON A ROAD OWNED BY DEFENDANT’S AND PLAINTIFF’S EMPLOYER AS DEFENDANT WAS LEAVING WORK, THE DEFENDANT WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE ACCIDENT OCCURRED, PLAINTIFF IS NOT RESTRICTED TO A WORKERS’ COMPENSATION LAW REMEDY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiff was not restricted to a Worker’s Compensation Law remedy in this pedestrian-car accident case. Both plaintiff and defendant were employed by the Culinary Institute of America (CIA). The accident occurred on a private CIA road as defendant was leaving work. The Third Department determined the accident was not related to defendant’s work:

The parties’ submissions reveal that the accident occurred on Campus Drive, which plaintiff described as a ring road encircling the campus — a description consistent with the campus map submitted by defendant. Defendant essentially maintains that because Campus Drive is a private road maintained by the CIA, he necessarily was acting within the scope of his employment when the accident took place. There is support for the premise that going to or from work while on the employer’s premises is considered an incident of the employment … . By comparison, accidents occurring on a public street outside working hours are generally not considered to arise out of the employment absent some nexus between the access route and the employer’s premises… .

Even accepting that Campus Drive is a private road, the submissions demonstrate that the CIA encourages the public to frequent the restaurants on campus and it opened up Campus Drive for general use by the public. There is nothing in this record indicating that the accident was precipitated by any special hazard or incident related to defendant’s employment. To the contrary, the accident allegedly occurred when defendant slowed down but did not stop as plaintiff was in the crosswalk. Such an accident is a common risk shared by the general public traveling on Campus Drive… . We conclude that defendant’s workday ended when he left the parking lot to drive home and, thus, as a matter of law, defendant was not acting within the scope of his employment at the time of the accident. Siegel v Garibaldi, 2018 NY Slip Op 01239, Third Dept 2-22-18

WORKERS’ COMPENSATION LAW (ALTHOUGH THE PEDESTRIAN-CAR ACCIDENT OCCURRED ON A ROAD OWNED BY DEFENDANT’S AND PLAINTIFF’S EMPLOYER AS DEFENDANT WAS LEAVING WORK, THE DEFENDANT WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE ACCIDENT OCCURRED, PLAINTIFF IS NOT RESTRICTED TO A WORKERS’ COMPENSATION LAW REMEDY (THIRD DEPT))/TRAFFIC ACCIDENTS (WORKERS’ COMPENSATION LAW, ALTHOUGH THE PEDESTRIAN-CAR ACCIDENT OCCURRED ON A ROAD OWNED BY DEFENDANT’S AND PLAINTIFF’S EMPLOYER AS DEFENDANT WAS LEAVING WORK, THE DEFENDANT WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE ACCIDENT OCCURRED, PLAINTIFF IS NOT RESTRICTED TO A WORKERS’ COMPENSATION LAW REMEDY (THIRD DEPT))/NEGLIGENCE (WORKERS’ COMPENSATION LAW, ALTHOUGH THE PEDESTRIAN-CAR ACCIDENT OCCURRED ON A ROAD OWNED BY DEFENDANT’S AND PLAINTIFF’S EMPLOYER AS DEFENDANT WAS LEAVING WORK, THE DEFENDANT WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE ACCIDENT OCCURRED, PLAINTIFF IS NOT RESTRICTED TO A WORKERS’ COMPENSATION LAW REMEDY (THIRD DEPT))/EMPLOYMENT LAW (WORKERS’ COMPENSATION LAW, ALTHOUGH THE PEDESTRIAN-CAR ACCIDENT OCCURRED ON A ROAD OWNED BY DEFENDANT’S AND PLAINTIFF’S EMPLOYER AS DEFENDANT WAS LEAVING WORK, THE DEFENDANT WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE ACCIDENT OCCURRED, PLAINTIFF IS NOT RESTRICTED TO A WORKERS’ COMPENSATION LAW REMEDY (THIRD DEPT))

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QUESTIONS OF FACT RAISED ABOUT ADEQUACY OF SNOW REMOVAL AND SALTING, AS WELL AS LIGHTING, IN THIS PARKING LOT SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant property owner’s cross motion to dismiss the complaint should not have been granted in this slip and fall case. Plaintiff (Torgersen) had raised questions of fact whether defendant’s snow removal and salting efforts were sufficient, and whether the lighting in the parking lot was adequate:

Torgersen claimed in an affidavit that his legs kicked out from under him on ice that was covered by snow and obscured by poor lighting. This account did not directly conflict with his prior deposition testimony — in which he gave a similar account of his fall, said the lighting was not “very good” and was cut off while trying to answer the only question posed regarding the presence of ice — and the discrepancies between them “raised a credibility issue” but did not warrant rejecting the affidavit out of hand … . Plaintiffs further provided the affidavit of another tenant who stated that she observed Torgersen fall as he described. The tenant saw a large patch of ice when she came to assist him and asserted, among other things, that no one salted the parking lot when it was plowed that day and that the poor plowing and salting at the complex had been the subject of complaints. The latter allegation ran counter to proof provided by defendant and Larkin [snow removal contractor], but there is no stated reason why the other tenant would misrepresent what had occurred and, in any event, “a court may not assess credibility on a summary judgment motion ‘unless it clearly appears that the issues are not genuine, but feigned'” … . It is by no means clear here.

Considering the foregoing “in the light most favorable to plaintiffs as the opponents of summary judgment”… , material issues of fact exist regarding the role ice and poor lighting played in Torgersen’s fall and whether the ice was due to inadequate salting by Larkin or defendant’s employees and should “reasonably have [been] discovered and remedied” by defendant … . Torgersen v A&f Black Cr. Realty, LLC, 2018 NY Slip Op 01237, Third Dept 2-22-18

NEGLIGENCE (SLIP AND FALL, QUESTIONS OF FACT RAISED ABOUT ADEQUACY OF SNOW REMOVAL AND SALTING, AS WELL AS LIGHTING, IN THIS PARKING LOT SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/SLIP AND FALL ( QUESTIONS OF FACT RAISED ABOUT ADEQUACY OF SNOW REMOVAL AND SALTING, AS WELL AS LIGHTING, IN THIS PARKING LOT SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/LIGHTING (NEGLIGENCE, SLIP AND FALL,QUESTIONS OF FACT RAISED ABOUT ADEQUACY OF SNOW REMOVAL AND SALTING, AS WELL AS LIGHTING, IN THIS PARKING LOT SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/SNOW REMOVAL (NEGLIGENCE, SLIP AND FALL, QUESTIONS OF FACT RAISED ABOUT ADEQUACY OF SNOW REMOVAL AND SALTING, AS WELL AS LIGHTING, IN THIS PARKING LOT SLIP AND FALL CASE, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))

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LADDER MOVED FOR NO APPARENT REASON, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) ACTION (FIRST DEPT).

The First Department determined plaintiff’s summary judgment motion on his Labor Law 240 (1) action was properly granted. Plaintiff alleged the ladder he was standing on suddenly moved:

Plaintiff established his entitlement to partial summary judgment on the Labor Law § 240(1) claim through his testimony that he was caused to fall to the ground when the unsecured ladder on which he was standing suddenly shifted and kicked out from underneath him … .

Defendants’ opposition failed to raise a triable issue of fact. None of coworkers who provided affidavits actually witnessed plaintiff fall from the ladder, and they did not contradict his testimony that the ladder suddenly moved. Although defendants also submitted an unsworn accident report containing a statement from a coworker that plaintiff lost his balance and fell, this did not contradict plaintiff’s consistent testimony that he fell because the ladder suddenly moved… .. Furthermore, defendants’ reliance on O’Brien v Port Auth. of N.Y. & N.J. (29 NY3d 27 [2017]) is misplaced because that case, which found an issue of fact about whether a slippery exterior staircase provided adequate protection to the plaintiff, left intact the presumption that Labor Law § 240(1) is violated where, as here, a ladder collapses or malfunctions for no apparent reason … . Rom v Eurostruct, Inc., 2018 NY Slip Op 01262, First Dept 2-22-18

LABOR LAW-CONSTRUCTION LAW (LADDER MOVED FOR NO APPARENT REASON, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) ACTION (FIRST DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, LADDER MOVED FOR NO APPARENT REASON, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) ACTION (FIRST DEPT))

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UNSECURED, DAMAGED LADDER WOBBLED AND PLAINTIFF FELL, PLAINTIFF’S SUMMARY JUDGMENT MOTION ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment on the Labor Law 240 (1) cause of action was properly granted. Plaintiff testified the ladder he was using was unsecured and damaged. The ladder wobbled causing plaintiff to fall

[Defendant’s] submission of an ambiguous affidavit from plaintiff’s supervisor was insufficient to rebut plaintiff’s prima facie showing. Notably, the supervisor did not address the fact that he was at the scene of the accident shortly after plaintiff fell, and provided only vague references to other available ladders, without addressing plaintiff’s testimony that other workers were using those ladders  … . Furthermore, [defendant’s] argument that questions of fact exist as to whether plaintiff was the sole proximate cause of his accident is unavailing given that [defendant] failed to make a showing that adequate safety devices were provided to plaintiff … . Pena v Jane H. Goldman Residuary Trust No. 1, 2018 NY Slip Op 01255, First Dept 2-22-18

LABOR LAW-CONSTRUCTION LAW (UNSECURED, DAMAGED LADDER WOBBLED AND PLAINTIFF FELL, PLAINTIFF’S SUMMARY JUDGMENT MOTION ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (FIRST DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, UNSECURED, DAMAGED LADDER WOBBLED AND PLAINTIFF FELL, PLAINTIFF’S SUMMARY JUDGMENT MOTION ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (FIRST DEPT))

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ACCEPTING THE ALLEGATIONS AS TRUE FOR PURPOSES OF A MOTION TO DISMISS, INSURANCE AGENT AND HIS EMPLOYERS OWED PLAINTIFF, THE BENEFICIARY OF DECEDENT’S LIFE INSURANCE POLICY, A DUTY OF CARE WITH RESPECT TO THE ISSUANCE OF THE POLICY, RELATIONSHIP WAS CLOSE TO PRIVITY (THIRD DEPT).

The Third Department, modifying Supreme Court, in a decision dealing with several substantive insurance and employment issues not summarized here, determined that plaintiff, as the beneficiary of her husband’s life insurance policy, had sufficiently alleged she was in a relationship close to privity such that the insurance agent (Pontillo) and his employers owed her a duty of care. Plaintiff’s suit stemmed from the insurers’ denial of coverage based upon material misrepresentations in the decedent’s application (not mentioning substance abuse):

Plaintiff was the intended beneficiary of the ReliaStar policy from the moment when decedent applied for the policy. She further alleged that she was linked to Pontillo by his status as a family member and trusted financial advisor and that Pontillo knew not only that the policy was intended to ensure plaintiff’s financial well-being in the event of decedent’s death, but that she would rely upon his expertise in preparing a valid application for it. Accepting these allegations as true, they show “an affirmative assumption of a duty of care to a specific party, [plaintiff,] for a specific purpose, regardless of whether there was a contractual relationship” … . As Supreme Court correctly determined, this alleged “reliance by . . . plaintiff that was ‘the end and aim of the transaction'” … constituted “a relationship so close as to approach that of privity” and created a duty of care toward her that permitted a negligence claim against Pontillo and his purported employers … . Vestal v Pontillo, 2018 NY Slip Op 01236, Third Dept 2-22-18

INSURANCE LAW (ACCEPTING THE ALLEGATIONS AS TRUE FOR PURPOSES OF A MOTION TO DISMISS, INSURANCE AGENT AND HIS EMPLOYERS OWED PLAINTIFF, THE BENEFICIARY OF DECEDENT’S LIFE INSURANCE POLICY, A DUTY OF CARE WITH RESPECT TO THE ISSUANCE OF THE POLICY, RELATIONSHIP WAS CLOSE TO PRIVITY (THIRD DEPT))/NEGLIGENCE (INSURANCE LAW, ACCEPTING THE ALLEGATIONS AS TRUE FOR PURPOSES OF A MOTION TO DISMISS, INSURANCE AGENT AND HIS EMPLOYERS OWED PLAINTIFF, THE BENEFICIARY OF DECEDENT’S LIFE INSURANCE POLICY, A DUTY OF CARE WITH RESPECT TO THE ISSUANCE OF THE POLICY, RELATIONSHIP WAS CLOSE TO PRIVITY (THIRD DEPT))/PRIVITY (INSURANCE LAW, NEGLIGENCE, (ACCEPTING THE ALLEGATIONS AS TRUE FOR PURPOSES OF A MOTION TO DISMISS, INSURANCE AGENT AND HIS EMPLOYERS OWED PLAINTIFF, THE BENEFICIARY OF DECEDENT’S LIFE INSURANCE POLICY, A DUTY OF CARE WITH RESPECT TO THE ISSUANCE OF THE POLICY, RELATIONSHIP WAS CLOSE TO PRIVITY (THIRD DEPT))

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RESPONDENT FELL USING A WALKER TO GET OFF A BUS, HER INJURY RESULTED FROM USE OR OPERATION OF A MOTOR VEHICLE, NO-FAULT BENEFITS PROPERLY AWARDED (FIRST DEPT).

The First Department determined no-fault benefits were properly awarded to respondent, who fell using a walker to exit a bus. Although the lift device was used when respondent got on the bus, the driver refused to activate the lift device when respondent got off. Respondent’s injury was deemed to stem form the use or operation of a motor vehicle:

Here, the bus driver activated the lift device of the bus to assist Valerie Mathis when she boarded the bus. Subsequently, when she was exiting the bus, the bus driver refused to activate the lift device or to lower the bus. As a result, she was forced to place her walker out in the street, and then fell over while attempting to exit the bus.

Thus, the arbitrator and master arbitrator rationally found that the bus was a “proximate cause” of the injury and that the accident involved the “use or operation” of a motor vehicle within the meaning of Insurance Law § 5104(a). Matter of New York City Tr. Auth. v Physical Medicine & Rehab of NY PC, 2018 NY Slip Op 01260, First Dept 2-22-18

INSURANCE LAW (NO-FAULT, RESPONDENT FELL USING A WALKER TO GET OFF A BUS, HER INJURY RESULTED FROM USE OR OPERATION OF A MOTOR VEHICLE, NO-FAULT BENEFITS PROPERLY AWARDED (FIRST DEPT))/NO-FAULT BENEFITS (INSURANCE LAW,  RESPONDENT FELL USING A WALKER TO GET OFF A BUS, HER INJURY RESULTED FROM USE OR OPERATION OF A MOTOR VEHICLE, NO-FAULT BENEFITS PROPERLY AWARDED (FIRST DEPT))/BUSES (INSURANCE LAW, NO-FAULT, RESPONDENT FELL USING A WALKER TO GET OFF A BUS, HER INJURY RESULTED FROM USE OR OPERATION OF A MOTOR VEHICLE, NO-FAULT BENEFITS PROPERLY AWARDED (FIRST DEPT))

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DEFENDANT’S PRESENCE IN A METH LAB DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION OF THE CONTRABAND, METH-RELATED CONVICTIONS REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined defendant’s presence in a meth lab was not sufficient to demonstrate constructive possession of the contraband in the lab:

A defendant’s mere presence in the same location as contraband is insufficient to establish constructive possession … . Knowledge that the contraband is present is insufficient, standing alone, to show constructive possession… . Some factors that courts may consider in determining whether a defendant constructively possessed contraband are the defendant’s proximity to the contraband, whether the defendant had keys to the location where the contraband was found, whether the contraband was in plain view, evidence that the defendant had used some of the drugs (when drugs are the contraband at issue), and whether there is witness testimony that the contraband belonged to the defendant … .

The evidence at trial demonstrated that defendant and [codefendant] Yerian had been in the garage with [codefendant] Alberts for approximately one hour when the officer arrived. There was no evidence that defendant lived in the house or garage, kept any of his personal belongings there or had keys to the property… . When the officer observed defendant in the workshop area, which measured approximately 10 to 12 feet by 20 to 24 feet, defendant was sitting on a stool in front of a bench, not touching anything. No contraband was recovered from defendant himself, nor did the proof establish that he owned or had even touched any of the contraband. People v Maricle, 2018 NY Slip Op 01217, Third Dept 2-22-18

CRIMINAL LAW (CONSTRUCTIVE POSSESSION, DEFENDANT’S PRESENCE IN A METH LAB DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION OF THE CONTRABAND, METH-RELATED CONVICTIONS REVERSED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, CONSTRUCTIVE POSSESSION, DEFENDANT’S PRESENCE IN A METH LAB DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION OF THE CONTRABAND, METH-RELATED CONVICTIONS REVERSED (THIRD DEPT))/CONSTRUCTIVE POSSESSION (CRIMINAL LAW, DEFENDANT’S PRESENCE IN A METH LAB DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION OF THE CONTRABAND, METH-RELATED CONVICTIONS REVERSED (THIRD DEPT))/POSSESSION (CRIMINAL LAW, CONSTRUCTIVE POSSESSION, DEFENDANT’S PRESENCE IN A METH LAB DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION OF THE CONTRABAND, METH-RELATED CONVICTIONS REVERSED (THIRD DEPT))/METHAMPHETAMINE (CRIMINAL LAW, CONSTRUCTIVE POSSESSION, DEFENDANT’S PRESENCE IN A METH LAB DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION OF THE CONTRABAND, METH-RELATED CONVICTIONS REVERSED (THIRD DEPT))

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