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QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT.

The Second Department, reversing Supreme Court, determined plaintiff had raised a question of fact whether the golf-course sprinkler-valve-hole, which caused plaintiff’s decedent to trip and fall, was concealed or unreasonably increased the risks inherent in the golf course, thereby overcoming the assumption of risk doctrine. Supreme Court should not have excluded the photographs of the area where plaintiff fell. Contrary to Supreme Court’s reasoning, the person who authenticated the photographs was a not a notice witness who should have been named prior to the filing of the note of issue:

… [P]laintiff raised a triable issue of fact as to whether the subject condition was concealed or unreasonably increased the risks inherent in the golf course … In this regard, the Supreme Court erred in rejecting the affidavits and photographic evidence submitted by the plaintiff in opposition to the motion. Contrary to the court’s determination, the plaintiff was not required to identify John Flower as a notice witness prior to filing the note of issue. The disclosure requirements of CPLR 3101 include the obligation to disclose the names of witnesses “if they are material and necessary to the prosecution or defense of the action” … . Here, Flower did not possess information material and necessary to the prosecution or defense of the action. In his affidavit, Flower merely authenticated certain photographs, most of which had been submitted by the decedent with his notice of claim prior to his death. Consequently, the court should not have rejected Flower’s affidavit and the attendant photographs on the ground that the plaintiff had failed to identify Flower as a notice witness prior to the filing of the note of issue. As a related matter, the court improperly rejected the affidavit of the plaintiff’s expert on the ground that he relied upon the photographs. Further, the court should not have rejected the two remaining affidavits from individuals who were disclosed to the defendant prior to the filing of the note of issue. MacIsaac v Nassau County, 2017 NY Slip Op 05814, 2nd Dept 7-25-17

NEGLIGENCE (ASSUMPTION OF RISK, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)CIVIL PROCEDURE (NOTICE WITNESS, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/EVIDENCE (NOTICE WITNESS, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/ASSUMPTION OF RISK (GOLF, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/GOLF (ASSUMPTION OF RISK, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/PHOTOGRAPHS (EVIDENCE, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)/NOTICE WITNESS (CIVIL PROCEDURE, QUESTION OF FACT WHETHER HOLE IN GOLF COURSE UNREASONABLY INCREASED THE INHERENT RISKS, PERSON WHO AUTHENTICATED PHOTOGRAPHS WAS NOT A NOTICE WITNESS 2ND DEPT)

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PETITIONER, WHO WAS ADMITTED TO THE PRISON NURSERY PROGRAM AFTER STARTING AN ARTICLE 78 PROCEEDING CONTESTING THE WITHDRAWAL OF ADMISSION, WAS NOT A PREVAILING PARTY WITHIN THE MEANING OF THE EQUAL ACCESS TO JUSTICE ACT, SHE WAS NOT, THEREFORE, ENTITLED TO ATTORNEY’S FEES 2ND DEPT.

The Second Department determined petitioner, an inmate who sought admission to the prison nursery program for her and her child, was not entitled to attorney’s fees under the Equal Access to Justice Act (EAJA). Petitioner’s admission to the program had been withdrawn by the prison superintendent (Kaplan) so petitioner brought an Article 78 proceeding with an order to show cause. The judge signed the order to show cause and allowed petitioner’s admission to the program pending a hearing. Before the hearing, the superintendent reversed her prior ruling and allowed petitioner to stay in the program. The Second Department held that petitioner was not a “prevailing party” within the meaning of the EAJA, and, even if she had been a prevailing party, the superintendent’s actions were justified:

We conclude that the Supreme Court properly determined that the petitioner was not a “prevailing party” under CPLR 8601(a) and 8602(f), albeit for a different reason. Contrary to the petitioner’s contention, the stipulation entered into between the parties …, which was so-ordered by the court, did not reflect a material change in the legal relationship between the parties because the petitioner’s claims had already been rendered moot by Kaplan’s voluntary decision on December 30, 2014, to vacate her earlier decision removing the petitioner from the Nursery Program … . Furthermore, the petitioner did not achieve prevailing party status by obtaining a temporary restraining order and a preliminary injunction from the court directing the respondents to admit the [*2]petitioner to the Nursery Program pending the outcome of the proceeding … . Matter of Gonzalez v New York State Dept. of Corr. & Community Supervision, 2017 NY Slip Op 05724, 2nd Dept 7-19-17

CIVIL PROCEDURE (EQUAL ACCESS TO JUSTICE ACT, INMATES, PETITIONER, WHO WAS ADMITTED TO THE PRISON NURSERY PROGRAM AFTER STARTING AN ARTICLE 78 PROCEEDING CONTESTING THE DENIAL OF PERMISSION, WAS NOT A PREVAILING PARTY WITHIN THE MEANING OF THE EQUAL ACCESS TO JUSTICE ACT, SHE WAS NOT, THEREFORE, ENTITLED TO ATTORNEY’S FEES 2ND DEPT)/ATTORNEYS  (EQUAL ACCESS TO JUSTICE ACT, INMATES, PETITIONER, WHO WAS ADMITTED TO THE PRISON NURSERY PROGRAM AFTER STARTING AN ARTICLE 78 PROCEEDING CONTESTING THE DENIAL OF PERMISSION, WAS NOT A PREVAILING PARTY WITHIN THE MEANING OF THE EQUAL ACCESS TO JUSTICE ACT, SHE WAS NOT, THEREFORE, ENTITLED TO ATTORNEY’S FEES 2ND DEPT)/EQUAL ACCESS TO JUSTICE ACT (ATTORNEY’S FEES, INMATES, PETITIONER, WHO WAS ADMITTED TO THE PRISON NURSERY PROGRAM AFTER STARTING AN ARTICLE 78 PROCEEDING CONTESTING THE DENIAL OF PERMISSION, WAS NOT A PREVAILING PARTY WITHIN THE MEANING OF THE EQUAL ACCESS TO JUSTICE ACT, SHE WAS NOT, THEREFORE, ENTITLED TO ATTORNEY’S FEES 2ND DEPT)/INMATES (EQUAL ACCESS TO JUSTICE ACT, ATTORNEY’S FEES, PETITIONER, WHO WAS ADMITTED TO THE PRISON NURSERY PROGRAM AFTER STARTING AN ARTICLE 78 PROCEEDING CONTESTING THE DENIAL OF PERMISSION, WAS NOT A PREVAILING PARTY WITHIN THE MEANING OF THE EQUAL ACCESS TO JUSTICE ACT, SHE WAS NOT, THEREFORE, ENTITLED TO ATTORNEY’S FEES 2ND DEPT)

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A CLAUSE IN AN EMPLOYMENT CONTRACT PURPORTING TO WAIVE THE RIGHT TO BRING A CLASS ACTION SUIT AND SUBMIT COLLECTIVE CLAIMS TO ARBITRATION VIOLATED THE NATIONAL LABOR RELATIONS ACT AND IS UNENFORCEABLE 1ST DEPT.

The First Department, modifying Supreme Court, in a full-fledged opinion by Justice Moskowitz, over a two-justice dissenting opinion, determined an arbitration provision in plaintiff insurance agent’s employment contract was unenforceable with respect to collective actions, here a class action concerning wage and hour claims:

… [W]e conclude … that arbitration provisions such as the one in [plaintiff’s] contract, which prohibit class, collective, or representative claims, violate the National Labor Relations Act (NLRA) and thus, that those provisions are unenforceable.

In reaching this conclusion, we agree with the reasoning in Lewis v Epic Sys. Corp. (823 F3d 1147 [7th Cir 2016], cert granted __ US __, 137 S Ct 809 [2017]), the recent case from the United States Court of Appeals for the Seventh Circuit, which addressed the enforceability of arbitration agreements prohibiting collective actions. In Lewis, the plaintiff employee agreed to an arbitration agreement mandating that wage and hour claims could be brought only through]individual arbitration and requiring employees to waive “the right to participate in or receive money or any other relief from any class, collective, or representative proceeding” … . The arbitration agreement also included a clause stating that if the waiver were unenforceable, “any claim brought on a class, collective, or representative action basis must be filed in a court of competent jurisdiction” … .

… The plaintiff [in Lewis] argued that the arbitration clause violated the NLRA because it interfered with employees’ right to engage in concerted activities for mutual aid and protection, and was therefore unenforceable … .

The Seventh Circuit denied the employer’s motion to proceed under the arbitration clause, declining to enforce a clause that precluded employees from “seeking any class, collective, or representative remedies to wage-and-hour disputes” because the clause “violate[d] Sections 7 and 8 of the NLRA” (id. at 1161). According to the Court, section 7 of the NLRA provided that employees have the right to engage in concerted activities, and concerted activities “have long been held to include resort to . . . judicial forums” (id. at 1152) [internal quotation marks omitted]. The Seventh Circuit also found that a lawsuit filed “by a group of employees to achieve more favorable terms or conditions of employment” is considered to constitute “concerted activity” under section 7 of the NLRA (id.) [internal quotation marks omitted). Accordingly, the Court held, contracts such as the one at issue were unenforceable under the NLRA because they “stipulate away employees’ [s]ection 7 rights or otherwise require actions unlawful under the NRLA” (id. at 1155). Gold v New York Life Ins. Co., 2017 NY Slip Op 05695, 1st Dept 7-18-17

CIVIL PROCEDURE (CLASS ACTIONS, EMPLOYMENT LAW, A CLAUSE IN AN EMPLOYMENT CONTRACT PURPORTING TO WAIVE THE RIGHT TO BRING A CLASS ACTION SUIT AND SUBMIT COLLECTIVE CLAIMS TO ARBITRATION VIOLATED THE NATIONAL LABOR RELATIONS ACT AND IS UNENFORCEABLE 1ST DEPT)/CLASS ACTIONS (EMPLOYMENT LAW,  A CLAUSE IN AN EMPLOYMENT CONTRACT PURPORTING TO WAIVE THE RIGHT TO BRING A CLASS ACTION SUIT AND SUBMIT COLLECTIVE CLAIMS TO ARBITRATION VIOLATED THE NATIONAL LABOR RELATIONS ACT AND IS UNENFORCEABLE 1ST DEPT)/EMPLOYMENT LAW (CLASS ACTIONS, ARBITRATION,  A CLAUSE IN AN EMPLOYMENT CONTRACT PURPORTING TO WAIVE THE RIGHT TO BRING A CLASS ACTION SUIT AND SUBMIT COLLECTIVE CLAIMS TO ARBITRATION VIOLATED THE NATIONAL LABOR RELATIONS ACT AND IS UNENFORCEABLE 1ST DEPT)/ARBITRATION (EMPLOYMENT LAW, CLASS ACTIONS,  A CLAUSE IN AN EMPLOYMENT CONTRACT PURPORTING TO WAIVE THE RIGHT TO BRING A CLASS ACTION SUIT AND SUBMIT COLLECTIVE CLAIMS TO ARBITRATION VIOLATED THE NATIONAL LABOR RELATIONS ACT AND IS UNENFORCEABLE 1ST DEPT)/CONTRACT LAW (EMPLOYMENT LAW, ARBITRATION,  A CLAUSE IN AN EMPLOYMENT CONTRACT PURPORTING TO WAIVE THE RIGHT TO BRING A CLASS ACTION SUIT AND SUBMIT COLLECTIVE CLAIMS TO ARBITRATION VIOLATED THE NATIONAL LABOR RELATIONS ACT AND IS UNENFORCEABLE 1ST DEPT)/INSURANCE LAW (EMPLOYMENT LAW, ARBITRATION, A CLAUSE IN AN EMPLOYMENT CONTRACT PURPORTING TO WAIVE THE RIGHT TO BRING A CLASS ACTION SUIT AND SUBMIT COLLECTIVE CLAIMS TO ARBITRATION VIOLATED THE NATIONAL LABOR RELATIONS ACT AND IS UNENFORCEABLE 1ST DEPT)

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SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT. 

The First Department, reversing Supreme Court, determined the petition seeking pre-action disclosure by respondent of the identities of persons who allegedly violated a confidentiality agreement should not have been granted. Respondent provides information about debt-distressed companies to a small audience at high prices. The First Department concluded that respondent operated a news service and the pre-action disclosure was precluded by the Civil Rights Law (Shield Law) which protects sources of news stories:

… [R]espondent established that its editorial staff is solely responsible for deciding what to report on and that it does not accept compensation for writing about specific topics or permit its subscribers to dictate the content of its reporting. Other courts have found the extent of a publication’s independence and editorial control to be important in determining whether to apply the Shield Law … . We concur.

Extending protection to respondent under the Shield Law is consistent with New York’s “long tradition, with roots dating back to the colonial era, of providing the utmost protection of freedom of the press” – protection that has been recognized as “the strongest in the nation” … . To condition coverage on a fact-intensive inquiry analyzing a publication’s number of subscribers, subscription fees, and the extent to which it allows further dissemination of information is unworkable and would create substantial prospective uncertainty, leading to a potential “chilling” effect. Matter of Murray Energy Corp. v Reorg Research, Inc., 2017 NY Slip Op 05688, 1st Dept 7-13-17

CIVIL RIGHTS LAW (SHIELD LAW) (SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT)/CONSTITUTIONAL LAW (FREEDOM OF THE PRESS, SHIELD LAW, (SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT)/SHIELD LAW (CIVIL RIGHTS LAW, SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT)/FREEDOM OF THE PRESS (CIVIL RIGHTS LAW, SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT)/CIVIL PROCEDURE (PRE-ACTION DISCLOSURE, SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT)

FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT.

The Third Department, in a full-fledged opinion by Justice Aarons, determined, because of a change in the Civil Procedure Law and Rules (CPLR), the failure to include a return date in a notice of petition is no longer a jurisdictional defect and can be corrected if there is no prejudice:

CPLR 2001 was amended in 2007 to permit courts to disregard mistakes, omissions, defects or irregularities made at the commencement of a proceeding, which includes commencement by the filing of a petition… . Indeed, the purpose behind amending CPLR 2001 was “to allow courts to correct or disregard technical defects, occurring at the commencement of an action [or proceeding], that do not prejudice the opposing party” and “to fully foreclose dismissal of actions for technical, non-prejudicial defects”… . In view of the amendment of CPLR 2001, the rule articulated in our prior decisions — a notice of petition lacking a return date is jurisdictionally defective and, therefore, prohibits a court from exercising its authority under CPLR 2001 — is no longer tenable.

… [A] court may allow a petitioner to correct any mistake, omission, defect or irregularity in the filing process upon such terms as may be just … . CPLR 2001 also states that the court shall disregard any such mistake, omission, defect or irregularity if the right of a party is not substantially prejudiced. “[T]he primary purpose of a petition is to give notice to the respondent that the petitioner seeks a judgment against [a] respondent so that it may take such steps as may be advisable to defend the claim” … . A return date accomplishes this purpose by notifying the responding party when responsive papers must be served and when the petition will be heard … .

Here, the record reflects that respondents had sufficient notice of the petition. Indeed, respondents’ counsel conceded at oral argument before Supreme Court that they had “plenty of time to respond” and, on appeal, they do not contend that they suffered any prejudice. As such, the omission of a return date should have been disregarded as a mere technical infirmity … . Matter of Oneida Pub. Lib. Dist. v Town Bd. of The Town of Verona, 2017 NY Slip Op 05659, 3rd Dept 7-13-17

CIVIL PROCEDURE (FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT)/RETURN DATE (NOTICE OF PETITION, FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT)/NOTICE OF PETITION (RETURN DATE, FAILURE TO INCLUDE A RETURN DATE IN A NOTICE OF PETITION IS NO LONGER A JURISDICTIONAL DEFECT AND CAN BE CORRECTED IF THERE IS NO PREJUDICE 3RD DEPT

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UNDER THE EQUAL ACCESS TO JUSTICE ACT, PETITIONER, AN INMATE WHO WAS INITIALLY DENIED ENTRY INTO A PRISON NURSERY PROGRAM FOR HER AND HER CHILD, WAS NOT ENTITLED TO ATTORNEYS’ FEES FOR THE REVERSAL OF THE DENIAL 2ND DEPT.

The Second Department that petitioner’s request for attorneys’ fees pursuant to the Equal Access to Justice Act (EAJA) was properly denied. Although petitioner’s application to participate in the prison’s nursery program was improperly denied and she and her child were subsequently admitted to the program by Supreme Court, the facts did not justify the award of attorneys’ fees:

In March 2015, the petitioner moved pursuant to the New York State Equal Access to Justice Act (CPLR art 86; hereinafter the EAJA) for an award of attorneys’ fees and expenses. In an order dated August 31, 2015, the Supreme Court denied the petitioner’s motion on the grounds that the respondents’ decision to deny her application for admission to the Nursery Program was “substantially justified” and that “special circumstances make an award unjust” (CPLR 8601[a]). The petitioner appeals.

Under the EAJA, “a court shall award to a prevailing party, other than the state, fees and other expenses incurred by such party in any civil action brought against the state, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust” (CPLR 8601[a]). An award of attorneys’ fees under the EAJA is generally left to the sound discretion of the Supreme Court … . “The determination of whether the State’s position was substantially justified is committed to the sound discretion of the court of first instance and is reviewable as an exercise of judicial discretion” … .

Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in concluding that the respondents’ position was substantially justified, notwithstanding the court’s underlying conclusion that the respondents’ determination to deny the petitioner’s application for admission to the Nursery Program should be annulled … . In particular, the evidence in support of the respondents’ position would satisfy a reasonable person that it was not “desirable for the welfare of [the] child” to remain with the petitioner for purposes of the EAJA … . Contrary to the petitioner’s contention, although the court found that the respondents failed to consider certain factors, including the petitioner’s current achievements and the supervised nature of the Nursery Program, there was no evidence in the record that the respondents “willfully ignored” those factors. Moreover, this is not a case where the respondents failed to conduct any assessment as to whether the subject child’s welfare would best be served by remaining with the petitioner … . Matter of Losurdo v New York State Dept. of Corr. & Community Supervision, 2017 NY Slip Op 05603, 2nd Dept 7-12-17

 

CIVIL PROCEDURE LAW (EQUAL ACCESS TO JUSTICE ACT, ATTORNEYS’ FEES, UNDER THE EQUAL ACCESS TO JUSTICE ACT, PETITIONER, AN INMATE WHO WAS INITIALLY DENIED ENTRY INTO A PRISON NURSERY PROGRAM FOR HER AND HER CHILD, WAS NOT ENTITLED TO ATTORNEYS’ FEES FOR THE REVERSAL OF THE DENIAL 2ND DEPT)/CORRECTIONS LAW (EQUAL ACCESS TO JUSTICE ACT, ATTORNEYS’ FEES, UNDER THE EQUAL ACCESS TO JUSTICE ACT, PETITIONER, AN INMATE WHO WAS INITIALLY DENIED ENTRY INTO A PRISON NURSERY PROGRAM FOR HER AND HER CHILD, WAS NOT ENTITLED TO ATTORNEYS’ FEES FOR THE REVERSAL OF THE DENIAL 2ND DEPT)/ATTORNEYS (EQUAL ACCESS TO JUSTICE ACT, ATTORNEYS’ FEES, UNDER THE EQUAL ACCESS TO JUSTICE ACT, PETITIONER, AN INMATE WHO WAS INITIALLY DENIED ENTRY INTO A PRISON NURSERY PROGRAM FOR HER AND HER CHILD, WAS NOT ENTITLED TO ATTORNEYS’ FEES FOR THE REVERSAL OF THE DENIAL 2ND DEPT)/EQUAL ACCESS TO JUSTICE ACT (ATTORNEYS’ FEES, UNDER THE EQUAL ACCESS TO JUSTICE ACT, PETITIONER, AN INMATE WHO WAS INITIALLY DENIED ENTRY INTO A PRISON NURSERY PROGRAM FOR HER AND HER CHILD, WAS NOT ENTITLED TO ATTORNEYS’ FEES FOR THE REVERSAL OF THE DENIAL 2ND DEPT)

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DATE OF LOSS MEANS THE DATE OF THE DENIAL OF THE CLAIM, NOT THE DATE OF THE EVENT TRIGGERING THE CLAIM, CAUSE OF ACTION NOT BARRED BY TWO YEAR STATUTE OF LIMITATIONS 4TH DEPT.

The Fourth Department, reversing Supreme Court, overruling Fourth Department precedent, determined causes of action stemming from a 2009 home burglary should not have been dismissed as barred by the two year statute of limitation. The term “date of loss” in the policy was interpreted to mean the date of the claim denial, not the date of the burglary:

Plaintiff commenced this action more than two years after the 2009 theft. Interpreting the phrase “date of loss” as the date on which the theft occurred, defendant contends that the action is time-barred under the terms of the policy. Plaintiff, on the other hand, interprets the phrase “date of loss” as the date on which the claim was denied and, as a result, contends that the action was timely commenced. We agree with plaintiff. Despite cases holding that “date of loss” means the date of the underlying catastrophe, including cases from this Department (see Baluk v New York Cent. Mut. Fire Ins. Co., 114 AD3d 1151; Klawiter v CGU/OneBeacon Ins. Group, 27 AD3d 1155), the Court of Appeals has found a distinction between the generic phrase “date of loss,” and the term of art “inception of loss” (see Medical Facilities v Pryke, 95 AD2d 692, 693, affd 62 NY2d 716; Proc v Home Ins. Co., 17 NY2d 239, 243-244, rearg denied 18 NY2d 751; Steen v Niagara Fire Ins. Co., 89 NY 315, 322-325). As the Second Circuit noted in Fabozzi v Lexington Ins. Co. (601 F3d 88, 91), those cases have not been overruled or disavowed in any way.

Indeed, as the 1st Department recognized in Medical Facilities, “nothing in [Proc] suggests an intention to alter [the] general rule” … , which is “that an action for breach of contract commences running at the time the breach takes place” … . Thus, only the very specific “inception of loss” or other similarly “distinct language” permits using the catastrophe date as the limitations date … . Here, the policy did not contain the specific “inception of loss” or other similarly distinct language, and we thus disavow our decisions in Baluk and Klawiter to the extent that they hold otherwise.

Inasmuch as ” [a]mbiguities in an insurance policy are to be construed against the insurer’ ” … , we conclude that the two-year limitations period contained in the policy did not begin to run until “the loss [became] due and payable” … . Lobello v New York Cent. Mut. Fire Ins. Co., 2017 NY Slip Op 05543, 4th Dept 7-7-17

INSURANCE LAW (DATE OF LOSS MEANS THE DATE OF THE DENIAL OF THE CLAIM, NOT THE DATE OF THE EVENT TRIGGERING THE CLAIM, CAUSE OF ACTION NOT BARRED BY TWO YEAR STATUTE OF LIMITATIONS 4TH DEPT)/CIVIL PROCEDURE (INSURANCE LAW, STATUTE OF LIMITATIONS, DATE OF LOSS MEANS THE DATE OF THE DENIAL OF THE CLAIM, NOT THE DATE OF THE EVENT TRIGGERING THE CLAIM, CAUSE OF ACTION NOT BARRED BY TWO YEAR STATUTE OF LIMITATIONS 4TH DEPT)/STATUTE OF LIMITATIONS (INSURANCE LAW, DATE OF LOSS MEANS THE DATE OF THE DENIAL OF THE CLAIM, NOT THE DATE OF THE EVENT TRIGGERING THE CLAIM, CAUSE OF ACTION NOT BARRED BY TWO YEAR STATUTE OF LIMITATIONS 4TH DEPT)

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DEC CONTRACTORS HAD THE RIGHT TO ENTER PROPERTY TO TEST FOR GASOLINE CONTAMINATION WITHOUT SIGNING THE PROPERTY OWNER’S ACCESS AGREEMENT, BECAUSE ONLY A CHANGE IN FORM WAS REQUIRED, THE DEC’S ACTION WAS CONVERTED TO A DECLARATORY JUDGMENT ACTION 4TH DEPT.

The Fourth Department, reversing Supreme Court, determined the Department of Environmental Conservation (DEC) and its contractors had the right to enter respondent’s property to test for gasoline contamination without signing an access agreement with the property owner. The property owner had refused entry to DEC contractors because its proposed access agreement was rejected by the DEC. The Fourth Department further determined a declaratory judgment action was the appropriate vehicle for the relief requested by the DEC and converted the action accordingly:

We … agree with the DEC that the Oil Spill Act authorizes it and its contractors or agents to enter suspected spill sites. Navigation Law § 178 provides, in pertinent part, that “[t]he department is hereby authorized to enter and inspect any property or premises for the purpose of inspecting facilities and investigating either actual or suspected sources of discharges or violation of this article or any rule or regulation promulgated pursuant to this article.  * * *

Where an unregulated discharge takes place, … the “person” responsible “shall immediately undertake to contain such discharge” … . As this does not always occur, “the [DEC] may undertake the removal of such discharge and may retain agents and contractors who shall operate under the direction of [the DEC] for such purposes” … , and in reading the Act’s sections together to best effectuate the Legislature’s intended objectives … , we conclude that the DEC’s contractors who “operate under the direction of [the DEC]” to investigate and remediate suspected and actual discharges of petroleum are authorized by statute, like the DEC, to enter the subject property for such purposes without acceding to landowner access agreements, but remaining subject only to restrictions imposed by law. Matter of State of New York (Essex Prop. Mgt., LLC), 2017 NY Slip Op 05525, 4th Dept 7-7-17

ENVIRONMENTAL LAW (NAVIGATION LAW, GASOLINE CONTAMINATION, DEC CONTRACTORS HAD THE RIGHT TO ENTER PROPERTY TO TEST FOR GASOLINE CONTAMINATION WITHOUT SIGNING THE PROPERTY OWNER’S ACCESS AGREEMENT, BECAUSE ONLY A CHANGE IN FORM  WAS REQUIRED, THE DEC’S ACTION WAS CONVERTED TO A DECLARATORY JUDGMENT ACTION 4TH DEPT)/CIVIL PROCEDURE (BECAUSE ONLY A CHANGE IN FORM WAS REQUIRED, THE DEC’S ACTION WAS CONVERTED TO A DECLARATORY JUDGMENT ACTION 4TH DEPT)/NAVIGATION LAW (GASOLINE CONTAMINATION, DEC CONTRACTORS HAD THE RIGHT TO ENTER PROPERTY TO TEST FOR GASOLINE CONTAMINATION WITHOUT SIGNING THE PROPERTY OWNER’S ACCESS AGREEMENT, BECAUSE ONLY A CHANGE IN FORM WAS REQUIRED, THE DEC’S ACTION WAS CONVERTED TO A DECLARATORY JUDGMENT ACTION 4TH DEPT)/OIL SPILL LAW  (NAVIGATION LAW, GASOLINE CONTAMINATION, DEC CONTRACTORS HAD THE RIGHT TO ENTER PROPERTY TO TEST FOR GASOLINE CONTAMINATION WITHOUT SIGNING THE PROPERTY OWNER’S ACCESS AGREEMENT, BECAUSE ONLY A CHANGE IN FORM WAS REQUIRED, THE DEC’S ACTION WAS CONVERTED TO A DECLARATORY JUDGMENT ACTION 4TH DEPT)/GASOLINE CONTAMINATION (NAVIGATION LAW, GASOLINE CONTAMINATION, DEC CONTRACTORS HAD THE RIGHT TO ENTER PROPERTY TO TEST FOR GASOLINE CONTAMINATION WITHOUT SIGNING THE PROPERTY OWNER’S ACCESS AGREEMENT, BECAUSE ONLY A CHANGE IN FORM WAS REQUIRED, THE DEC’S ACTION WAS CONVERTED TO A DECLARATORY JUDGMENT ACTION 4TH DEPT)

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ACTION SEEKING INJUNCTION WAS NOT STARTED WITH A SUMMONS AND COMPLAINT, COURTS DID NOT HAVE JURISDICTION OVER THE MATTER, THE PAPERS WERE NOT APPEALABLE 4TH DEPT.

The Fourth Department determined that the town’s attempt obtain an injunction requiring respondents to tear down structures which violated the zoning code was invalid. The action was brought by an order to show cause, but no summons or complaint had been filed. Therefore the courts did not have jurisdiction over the matter:

“[T]he valid commencement of an action is a condition precedent to [Supreme Court’s] acquiring the jurisdiction even to entertain an application for a[n] . . . injunction”… . Here, however, there is no action supporting the application for an injunction. Indeed, the order to show cause and supporting papers themselves constitute the only request for an injunction. While ” courts are empowered and indeed directed to convert a civil judicial proceeding not brought in the proper form into one which would be in proper form, rather than to grant a dismissal’ “… , more than improper form is involved here … . Converting the order to show cause and supporting papers into a summons and complaint in these circumstances would effectively permit the Town to seek an injunction by motion, a result that is at odds with the well-established principle that “[t]he pendency of an action is an indispensable prerequisite to the granting of a[n] . . . injunction” … . We thus conclude that the court lacked jurisdiction to entertain the Town’s request … . Without an underlying action the order putatively on appeal does not constitute an appealable paper… . The appeal must therefore be dismissed. Matter of Town of Cicero v Lakeshore Estates, LLC, 2017 NY Slip Op 05524, 4th Dept 7-7-17

CIVIL PROCEDURE (ACTION SEEKING INJUNCTION WAS NOT STARTED WITH A SUMMONS AND COMPLAINT, COURTS DID NOT HAVE JURISDICTION OVER THE MATTER, THE PAPERS WERE NOT APPEALABLE 4TH DEPT)/APPEALS (ACTION SEEKING INJUNCTION WAS NOT STARTED WITH A SUMMONS AND COMPLAINT, COURTS DID NOT HAVE JURISDICTION OVER THE MATTER, THE PAPERS WERE NOT APPEALABLE 4TH DEPT)/INJUNCTIONS (ACTION SEEKING INJUNCTION WAS NOT STARTED WITH A SUMMONS AND COMPLAINT, COURTS DID NOT HAVE JURISDICTION OVER THE MATTER, THE PAPERS WERE NOT APPEALABLE 4TH DEPT)/JURISDICTION (SUMMONS AND COMPLAINT, ACTION SEEKING INJUNCTION WAS NOT STARTED WITH A SUMMONS AND COMPLAINT, COURTS DID NOT HAVE JURISDICTION OVER THE MATTER, THE PAPERS WERE NOT APPEALABLE 4TH DEPT)

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DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT.

The Third Department, reversing Supreme Court, determined defendants’ motions for summary judgment dismissing this asbestos-related products liability action should not have been granted. Defendants merely pointed to gaps in plaintiffs’ proof and did not submit prima facie proof demonstrating their products were not the source of asbestos exposure. Therefore summary judgment should have been denied without any reference to the opposing papers:

In February 2015, plaintiff Eileen A. O’Connor was diagnosed with pleural mesothelioma. Alleging that her illness stemmed from exposure to equipment containing asbestos while working at the Westchester County Department of Labs and Research (hereinafter WCDLR) from approximately 1975 to 1979, O’Connor, along with her husband, derivatively, commenced this personal injury action in 2015 against, among others, defendants Fisher Scientific Company, LLC, Thomas Scientific, Inc. and VWR International, LLC (hereinafter collectively referred to as defendants) … . * * *

… [T]he proof submitted by defendants, respectively, failed to establish that they did not sell asbestos-containing products to WCDLR during the time that O’Connor was employed or that O’Connor was not exposed to any such products … . * * *

… [D]efendants failed to establish, prima facie, that they could not have caused O’Connor’s asbestos-related illness… . Fisher Scientific’s lack of documentation from the 1970s does not establish that it did not sell asbestos-containing products to WCDLR. Otherwise, defendants, respectively, “merely pointed to perceived gaps in plaintiff[s’] proof, rather than submitting evidence showing why [plaintiffs’] claims fail” … . O’Connor v Aerco Intl., Inc., 2017 NY Slip Op 05487, 3rd Dept 7-6-17

PRODUCTS LIABILITY (DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)/SUMMARY JUDGMENT (PRODUCTS LIABILITY, DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)/EVIDENCE (PRODUCTS LIABILITY, SUMMARY JUDGMENT, DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)/NEGLIGENCE (PRODUCTS LIABILITY, SUMMARY JUDGMENT, DEFENDANTS DID NOT AFFIRMATIVELY DEMONSTRATE THEIR PRODUCTS WERE NOT THE SOURCE OF ASBESTOS EXPOSURE, POINTING TO GAPS IN PLAINTIFFS’ PROOF IS NOT ENOUGH, DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)

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