The circumstances under which an insurer can be equitably estopped from making a late coverage-disclaimer were discussed by the First Department. Equitable estoppel based on the timing of a disclaimer alone will only be invoked when the insurer has controlled the defense and the character and strategy of the defense can no longer be altered (i.e., when the matter is close to trial). 201-208 Main St Assoc Inc v Arch Ins Co, 2013 NY Slip Op 03159, 1st Dept, 5-2-13
Under CPLR 3408 (one of the Subprime Residential Loan and Foreclosure Laws enacted in response to the “subprime mortgage crisis”) settlement conferences between the bank and the homeowner are made mandatory. The statute requires that the parties negotiate “in good faith to reach a mutually agreeable resolution, including a loan modification, if possible”… . In this case, Supreme Court determined the bank had not negotiated in good faith. As a sanction, Supreme Court compelled “specific performance of the original modification agreement” proposed by the bank at the outset of the settlement conference. In a full-fledged opinion by Justice Dickerson, the Second Department, after describing the sanctions imposed in other cases, determined that the sanction in this case amounted to the Court’s rewriting the mortgage in violation of the Contract Clause and the bank’s due process rights. Justice Dickerson wrote:
…[T]the Supreme Court’s interpretation of CPLR 3408(f) as authorizing it to, in effect, rewrite the mortgage and loan agreement would violate the Contract Clause of the United States Constitution …. * * *In addition, the Supreme Court’s determination violated [the bank’s] due process rights. [The bank] was not on notice that the Supreme Court was considering a remedy such as the imposition of the terms of the modification proposal on a permanent basis… . Wells Fargo Bank, NA v Meyers, 2013 NY Slip Op 03085, 2nd Dept, 5-1-13
The plaintiffs, in a nuisance action, sought to enjoin the defendants “from maintaining more than one ‘main building’ on the premises, allegedly in violation of the Village Code.” The Second Department, citing the doctrine of primary jurisdiction, ruled that the case for an injunction had not been made out because the plaintiffs never sought a determination of the legality of the use of the premises from the administrative agency responsible for zoning:
The doctrine of primary jurisdiction “generally enjoins courts having concurrent jurisdiction to refrain from adjudicating disputes within an administrative agency’s authority, particularly where the agency’s specialized experience and technical expertise is involved” …. Here, the plaintiffs failed to properly seek a determination regarding the legality of the use of the premises under the Village Code from the administrative bodies authorized to administer and enforce the Village’s zoning law … . Massaro v Jaina Network Sys, Inc, 2013 NY Slip Op 03066, 2nd Dept, 5-1-13
The question before the Court of Appeals was whether a judgment creditor, pursuant to CPLR 5225, can obtain a turnover order against a bank to garnish the assets held by the bank’s foreign subsidiary. The plaintiff in this case, the Commonwealth of the Northern Mariana Islands, obtained two tax judgments against the tax debtors (the Millards) for over $18,000,000 each. The Millards left the commonwealth before the judgments were issued and settled in the Cayman Islands. The judgments were registered in the Southern District of Florida. The Canadian Imperial Bank of Commerce (CIBC) had a branch in New York. The commonwealth sought to garnish CIBC under the theory that the Millards had accounts in subsidiaries of CIBC, namely First Carribean International Bank Limited (CFIB) or its affiliates in the Cayman Islands. In determining the commonwealth could not get at the Millards assets in the Cayman Islands through the parent Canadian bank, the Court of Appeals, in a full-fledged opinion by Judge Rivera, wrote:
Under CPLR article 52, a special proceeding for a turnover order is the procedural mechanism devised by the Legislature to enforce a judgment against an asset of a judgment debtor, held in the “possession or custody” of a third-party.* * * … [W]e interpret the omission of “control” from section 5225 (b) as an indication that “possession or custody” requires actual possession. Commonwealth of the Northern Mariana Islands v Canadian Imperial Bank of Commerce …, No 58, CtApp, 4-30-13
The First Department reinstated a verdict in favor of police officers who were injured in the course of making as arrest in a subway station. As the officer chased the suspect, he asked a New York City Transit Authority employee to call for police back up. The theory of the case was that the employee negligently did not call for back up. The trial judge granted the Transit Authority’s motion for judgment finding the employee was under no duty to call for assistance. In reversing, the First Department wrote:
Public Authorities Law § 1212(3) imposes liability upon the Transit Authority for the negligence of its employees in the operation of the subway system. Although it is a common carrier, the Transit Authority is held to a duty of ordinary care under the particular circumstances of each case …. In Crosland v New York City Tr. Auth. (68 NY2d 165 [1986]), the Court of Appeals held that the Transit Authority could be held liable for the negligent failure of its employees to summon aid as they watched a gang of thugs fatally assault a passenger. As the Court stated, “Watching someone being beaten from a vantage point offering both safety and the means to summon help without danger is within the narrow range of circumstances which could be found to be actionable” (id. at 170 [citation omitted]). The trial court held that Crosland had no application here because plaintiffs were police officers. This was error.
The broad definition of onlooker liability articulated by the Crosland Court does not lend itself to any exception based upon an injured party’s status as a police officer. To be sure, General Obligations Law § 11-106 gives police officers as well as firefighters, who are injured in the line of duty, a distinct right of action against tortfeasors that cause such injuries. Accordingly, plaintiffs’ recovery is not barred by their status as police officers and the Transit Authority’s liability was established at trial. The Transit Authority also argues that the evidence did not establish that a timely response on Corbin’s part would have prevented plaintiffs’ injuries. We decline to consider this argument as it was raised for the first time on appeal. Were we to consider the argument, we would find it unavailing. Filippo v New York City Tr Auth, 2013 NY Slip Op 03025, 1st Dept, 4-30-13
The First Department determined a motion to set aside a verdict in a negligent design case was properly denied. The jury found the car manufacture negligent in not installing a device (starter interlock device) such that the car (1987) car could not be started when it was in gear. The First Department wrote:
The trial court properly instructed the jury that in determining the negligent design claim it first had to decide whether, from the evidence at trial, there was a general custom or practice by automobile manufacturers selling manual transmission vehicles in the United States in 1987. The proof adduced at trial was sufficient to permit a jury to conclude that the practice was fairly well defined in the car manufacturing industry. Plaintiffs were not required to prove universal application of the practice in order for the jury to consider this question … . The court further properly instructed the jury that if there was such a custom and practice, it could be considered along with all of the other facts and circumstances, in determining whether Volvo had exercised reasonable care … . From all of the evidence in the record, including the experts’ testimony, the jury reasonably concluded that defendants were negligent in failing to use a starter interlock device in its vehicle …. The trial court correctly denied defendants’ motion for a directed verdict because there was sufficient evidence supporting plaintiffs’ negligent design claim. Reis… v Volvo…, 2013 NY Slip Op 03024, 1st Dept, 4-30-13
In a second trial, the defendant moved to preclude the prosecution from introducing evidence of two assaults which were the subjects of acquittals in the first trial. The trial court allowed evidence of the two assaults. On appeal the defendant argued that evidence of the assaults of which she was acquitted was precluded by the doctrine of collateral estoppel. The Fourth Department disagreed and affirmed the trial court’s admission of the evidence, noting that the exact meaning of an acquittal in a criminal trial is often impossible to demonstrate:
“The doctrine of collateral estoppel, or issue preclusion, operates in a criminal prosecution to bar relitigation of issues necessarily resolved in defendant’s favor at an earlier trial” …. Thus, the doctrine applies in a situation such as this, where at a prior trial there was a mixed verdict in which the jury acquitted a defendant of certain charges, but was unable to reach a verdict on the remaining charges …. “Application of the collateral estoppel doctrine requires that the court determine what the first judgment decided and how that determination bears on the later judgment . . . The rule is easily stated but frequently difficult to implement because the meaning of a general verdict is not always clear and mixed verdicts may, at times, appear inherently ambiguous. Nevertheless, the court must assume the jury reached a rational result . . . , and a defendant claiming the benefit of estoppel carries the burden of identifying the particular issue on which he [or she] seeks to foreclose evidence and then establishing that the fact finder in the first trial, by its verdict, necessarily resolved that issue in his [or her] favor” …. “Defendant’s burden to show that the jury’s verdict in the prior trial necessarily decided a particular factual issue raised in the second prosecution is a heavy one indeed, and as a practical matter severely circumscribes the availability of collateral estoppel in criminal prosecutions . . . ‘[I]t will normally be impossible to ascertain the exact import of a verdict of acquittal in a criminal trial’ ” …. People v Brandie E…, KA 09-01366, 202, 4th Dept, 4-26-13
In an article 78 action challenging the prohibition (by the Buffalo Fiscal Stability Authority) of the implementation of a wage increase pursuant to a collective bargaining agreement, the Fourth Department noted that the dismissal of an action as time-barred is a determination on the merits for res judicata purposes: “It is well established that a dismissal of a proceeding as time-barred “ ‘is equivalent to a determination on the merits for res judicata purposes’”… . Matter of Buffalo Professional Firefighters Association, Inc…, CA 12-02126, 371, 4th Dept, 4-26-13
Plaintiff, a British citizen, was injured in England when he was a passenger on an all-terrain vehicle manufactured by a New York company, RII. The Fourth Department affirmed the grant of RII’s motion to dismiss pursuant to CPLR 327 (forum non conveniens) and to have the proceeding moved to England. Plaintiffs’ objections that contingency-fee arrangements are not allowed in England and loss of consortium damages are not recognized in England did not warrant denial of the motion. The Fourth Department wrote:
…[T]he court properly determined that “the action, although jurisdictionally sound, would be better adjudicated elsewhere” …. Plaintiffs are both British citizens residing in Scotland. The accident occurred in England, and other witnesses, including the driver of the ATV, are located there. As the trial court in the federal action between the same parties noted, “highly material evidence, such as the eyewitness testimony, accident investigation documents and witnesses, the scene of the accident, and the vehicle itself, which will not be readily within plaintiffs’ control in this court, would be more accessible to both sides in a British forum” …. Moreover, RII is amenable to service of process in Scotland or England, and it does not take issue with the conditions imposed by the court concerning the waiver of defenses based on jurisdiction and the statute of limitations. Emslie v Recreative Industries, Inc., CA 12-01246, 139, 4th Dept, 4-26-13
In a case which alleged plaintiff was injured by lead paint exposure, Supreme Court ordered plaintiff, as part of discovery, to produce a medical report linking the injuries to lead exposure before depositions. The Fourth Department affirmed over a dissent which argued plaintiff was improperly being forced to hire an expert at the very outset of the litigation:
Under the unique circumstances of this case, we conclude that Supreme Court did not abuse its broad discretion in directing plaintiff to produce a medical report containing a diagnosis of the alleged injuries sustained by plaintiff and causally relating such injuries to lead exposure before any CPLR 3121 examinations are conducted. As previously noted, plaintiff alleges numerous and wide- ranging neurological, physiological, psychological, educational, and occupational effects of his childhood exposure to lead. Although plaintiff disclosed his medical and educational records, none of those records diagnoses plaintiff with a lead-related injury or causally relates any of plaintiff’s alleged physical or mental conditions to lead exposure. Indeed, plaintiff’s mother testified at her deposition that no health care provider had ever told her that plaintiff had “any residual injuries from lead exposure.” The only reference in the disclosed records to an injury that may have been caused by exposure to lead is a school district health and development assessment, which states that “[e]levated [blood] lead level may have had an effect” on plaintiff’s educational performance. Although the dissent is correct that CPLR 3121 and 22 NYCRR 202.17 do not require the disclosure directed in this case, they likewise do not preclude a trial judge from proceeding in the manner at issue herein. Giles v A. Gi Yi, et al, CA 12-01288, 59, 4th Dept, 4-26-13
Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy