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AN ANSWER TO AN AMBIGUOUS QUESTION ON AN APPLICATION FOR INSURANCE COVERAGE IS NOT A MATERIAL MISREPRESENTATION; THEREFORE THE ANSWER DID NOT VOID THE POLICY WHICH REMAINS IN FULL FORCE AND EFFECT (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined a question in the application for insurance coverage was ambiguous. Therefore the answer to the question was not a material misrepresentation and the policy remains in full force and effect:

A misrepresentation in an insurance application is material, voiding the policy ab initio, if, had the true facts been known, either the insurer would not have issued the policy or would have charged a higher premium … . Even an innocent misrepresentation is sufficient to void the policy … . However, “an answer to an ambiguous question on an insurance application cannot be the basis for a claim of misrepresentation” in procuring insurance … .

Here, on defendants-respondents’ insurance application submitted to plaintiff, Question 9, which asked “Any uncorrected code violations?” is ambiguous. While the plain language asks whether there are “any uncorrected fire code violations” and not uncorrected fire code notices of violation, different witnesses provided five different understandings as to what the question was asking. In any event, this Court has used the term “violation” to mean the issuance of a citation … . Indeed, the question is not even posed as a complete sentence but a sentence fragment lacking a verb, which could have clarified the question. Starr Indem. & Liab. Co. v Monte Carlo, LLC, 2021 NY Slip Op 00044, First Dept 1-5-21

 

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QUESTIONS OF FACT WHETHER DEFENDANT HAD CONSTRUCTIVE NOTICE OF THE RAISED SIDEWALK FLAG AND WHETHER THE DEFECT WAS TRIVIAL IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were questions of fact about whether defendant had constructive notice of a raised sidewalk flag and whether the defect was trivial in this slip and fall case:

Although the property manager states that the premises were regularly inspected, and any condition observed would have been reported to him, reference to a generalized inspection practice “is insufficient to satisfy defendant[‘s] burden of establishing that [he] lacked notice of the alleged condition of the sidewalk prior to the accident” … .

As a general rule, whether a defect is trivial depends on “the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … . The relevant inquiry is whether the defect was “difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances” … . Although defendant relies on photographs to prove his defense that the defect is trivial, summary judgment should not be granted where, as here, “the dimensions of the alleged defect are unknown and the photographs and descriptions inconclusive” … . Trinidad v Catsimatidis, 2021 NY Slip Op 00047, First Dept 1-5-21

 

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THE DEFENDANT LIMITED LIABILITY COMPANIES FUNCTIONED AS A SINGLE INTEGRATED UNIT WITH PLAINTIFF’S EMPLOYER; PLAINTIFF’S ONLY REMEDY IN THIS SLIP AND FALL CASE IS THE WORKERS’ COMPENSATION LAW BENEFITS HE APPLIED FOR AND RECEIVED BEFORE BRINGING THIS LABOR LAW 240(1) ACTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, over an extensive dissent, determined the corporate entities plaintiff sued in this slip and fall case function as a single integrated entity with plaintiff’s employer, the nursing home where he was injured. Plaintiff had applied for and received Workers’ Compensation benefits and then brought this Labor 240(1) action. The First Department held that plaintiff’s exclusive remedy was Workers’ Compensation:

… [W]e find that Hopkins Ventures has shown ownership of 100% of both KFG Land and KFG Operating and that it exercised complete managerial and financial control over both companies, operating them as if they were a single integrated entity. Since the evidentiary proof submitted by KFG Land was sufficient to make out its prima facie case, that the LLCs functioned as a single integrated entity in connection with the joint venture of acquiring and operating the property and nursing home, the exclusivity provisions of the WCL apply. Plaintiff failed to raise a material issue of fact to defeat defendant’s motion for summary judgment. …

Although the dissent reaches the underlying merits of plaintiff’s cross appeal concerning the dismissal of his Labor Law §240(1) on the basis that he was not engaged in a “repair” or “alteration” within the meaning of Labor Law § 240(1) at the time of his accident, we affirm on the ground that even if plaintiff was engaged in alteration or repair, the exclusivity provisions of the WCL would be his sole remedy since he applied for and received those benefits. Fuller v KFG L & I, LLC, 2020 NY Slip Op 07998, First Dept 12-29-20

 

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A NON-DEFECTIVE CELLAR DOOR CLOSED AND STRUCK PLAINTIFF’S HEAD; THE LEASE DID NOT REQUIRE THE DEFENDANT OUT-OF-POSSESSION LANDLORD TO MAINTAIN THE PREMISES; AND THERE WAS NO STRUCTURAL DEFECT; THE LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant out-of-possession landlord (West 16th) was not liable for an injury from a non-defective cellar door which closed and struck plaintiff’s head:

It is well established that an out-of-possession landlord like West 16th “is generally not liable for negligence with respect to the condition of the demised premises unless it (1) is contractually obligated to make repairs or maintain the premises, or (2) has a contractual right to reenter, inspect and make needed repairs and liability is based on a significant structural or design defect that is contrary to a specific statutory safety provision” … .

The lease did not obligate West 16th to maintain or repair the cellar doors or to install an auxiliary safety device on the cellar doors, which were fully functional and not broken in any way. …

Further, the alleged defect is not a structural defect contrary to a specific statutory safety provision. … [W]e have previously held that the failure to install a safety device to hold such doors open—the precise negligence alleged against West 16th herein—was “not a structural defect contrary to a specific statutory safety provision” … . Matias v West 16th Realty LLC, 2020 NY Slip Op 08000, First Dept 12-29-20

 

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THE DENIAL OF A MOTION TO PRECLUDE EVIDENCE WAS NOT AN APPEALABLE ORDER (FIRST DEPT).

The First Department held the denial of a motion to preclude evidence was not an appealable order:

[Supreme Court] denied defendants-appellants’ motion to preclude evidence of any alleged misrepresentations and/or breaches of contract not previously pled in the second amended complaint in support of the respective fraud and breach of contract causes of action, and held that plaintiffs could rely upon such evidence by amending their interrogatory answers in the future, unanimously dismissed, without costs, as taken from a nonappealable order.

“An evidentiary ruling made before trial is generally reviewable only in connection with an appeal from a judgment rendered after trial” … . Here, defendants’ motion to preclude, which was made to limit plaintiffs’ allegations to those asserted in a second amended complaint, notwithstanding that outstanding discovery remained, including critical depositions, did not involve an evidentiary issue pertaining to the merits of the controversy or a substantial right to justify appellate review (see CPLR 5701[a][2][iv], [v] …). National Union Fire Ins. Co. of Pittsburgh, PA v Razzouk, 2020 NY Slip Op 08004, First Dept 12-29-20

 

AFTER THE DISCHARGE OF A JUROR FOR MISCONDUCT, THE TRIAL COURT PROPERLY REPLACED THE JUROR WITH AN ALTERNATE WHO HAD BEEN EXCUSED AND SENT HOME; THERE WAS A DISSENT (FIRST DEPT).

The First Department, over a dissent, determined the trial court properly replaced a juror for misconduct with an alternate jury who had been excused and sent home:

The plain language of CPL 270.35 (1) states, in relevant part, that

“If at any time after the trial jury has been sworn and before the rendition of its verdict, a juror is unable to continue serving . . . the court must discharge such juror. If an alternate juror or jurors are available for service, the court must order that the discharged juror be replaced by the alternate juror whose name was first drawn and called, provided, however, that if the trial jury has begun its deliberations, the defendant must consent to such replacement.”

Thus, according to the plain language of CPL 270.35 (1), the trial court was required to decide if the alternate was “available for service,” and did not require the consent of defendant given that the jury had not begun its deliberations. People v Murray, 2020 NY Slip Op 08007, First Dept 12-29-30

 

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DEFENDANT’S CONTEMPT CONVICTION FOR VIOLATING AN ORDER OF PROTECTION STANDS, DESPITE THE FACT THAT THE ORDER OF PROTECTION WAS BASED ON AN OFFENSE SINCE FOUND UNCONSTITUTIONAL (FIRST DEPT).

The First Department determined the order of protection based on a conviction for an offense which has been found unconstitutional was voidable, not void, and therefore remained in effect.

Defendant was properly convicted of first-degree criminal contempt under Penal Law § 215.51(b)(v) for violating an order of protection that had been issued upon his conviction of second-degree aggravated harassment under former Penal Law § 240.30(1)(a). The contempt conviction was valid even though the Court of Appeals declared that the aggravated harassment provision underlying the order of protection was unconstitutional in People v Golb (23 NY3d 455 [2014] … . Golb was decided after the order of protection was issued against defendant, but before he violated it. …

The Golb decision did not render defendant’s order of protection void on its face, but merely voidable.

Defendant’s underlying conviction was final before Golb was decided. The order of protection was indisputably valid at the time of its issuance. After Golb, there are no reported cases holding that convictions under former Penal Law § 240.30 (1)(a) are automatically vacated. Instead, where there was vacatur of a conviction or order of protection, it was in response to a request for relief either on appeal or in a posttrial motion … . …

Defendant did not challenge the order of protection by appealing the aggravated harassment conviction against him … . His subsequent CPL 440.10 motion to vacate the conviction and order of protection based on Golb was denied … . Defendant was therefore required to comply with the extant order and his violation constituted criminal contempt … . People v Brown, 2020 NY Slip Op 08011, First Dept 12-29-20

 

PLAINTIFF SLIPPED ON ICE AND SNOW IN AN AREA OF THE WORK SITE USED AS A WALKWAY; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 241(6) ACTION SHOULD HAVE BEEN GRANTED; THERE WAS A DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over a dissent, determined plaintiff was entitled to summary judgment on his Labor Law 241(6) cause of action. Plaintiff slipped and fell on ice and snow on a walkway used on the work site:

[12 NYCRR] Section 23-1.7(d) provides, in pertinent part, that no employee shall be permitted “to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition” and requires the removal of any “[i]ce, snow, water, grease and any other foreign substance which may cause slippery footing.” Here, plaintiff’s accident occurred while he was walking on a path in the fenced-in area between the security guard booth and the worksite entrance at Staircase B. The general superintendent … swore in his deposition that there was an unpaved path between the booth and the worksite entrance, that it was one of two entrances to the worksite, that it was a “walked path that workers generally took” and that it was “an area that should be kept clear of snow and ice and any other slippery conditions so that workers don’t injure themselves[.]” Potenzo v City of New York, 2020 NY Slip Op 08013, First Dept 12-29-30

 

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ALTHOUGH THE TWO INDICTMENTS ALLEGED THE SAME MODUS OPERANDI FOR MEDICAID FRAUD, THE CHARGES INVOLVED DIFFERENT PARTIES AND TIME PERIODS; THE WRIT OF PROHIBITION SEEKING TO PRECLUDE PROSECUTION ON DOUBLE JEOPARDY GROUNDS DENIED OVER A DISSENT (FIRST DEPT).

The First Department, over a dissent, denied the writ of prohibition seeking to preclude a second prosecution for Medicaid fraud on double jeopardy grounds. Although the alleged scheme to defraud was the same, the two indictments involved different parties and different time periods:

In essence, the wrongdoing charged in each indictment is the filing of fraudulent Medicaid reimbursement claims and related misconduct, such as payment of kickbacks. However, the indictments charge different specific criminal acts, which were perpetrated on different dates and over different time periods. Moreover, the indictments do not allege fraudulent billing of any of the same managed care organizations. While it appears that the different fraudulent acts charged in the two indictments had a similar modus operandi and were part of a common plan, this alone does not suffice to render them part of the same “criminal transaction” under CPL 40.10(2)(b) … . Matter of Dieffenbacher v Jackson, 2020 NY Slip Op 08015, First Dept 12-29-20

 

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NEGLIGENT HIRING, SUPERVISION, RETENTION AND TRAINING CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT; THE VICARIOUS LIABILITY CAUSE OF ACTION, HOWEVER, SHOULD HAVE BEEN DISMISSED; IT WAS ALLEGED EMPLOYEES OF A RESIDENTIAL FACILITY BURNED A NONVERBAL, AUTISTIC RESIDENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, determined the vicarious liability cause of action against L & W, the employer of defendants Chavies and Edwards,  should have been dismissed, but the negligent hiring, retention, supervision and training causes of action, as well as claims for punitive damages, properly survived summary judgment. The complaint alleged plaintiff, Sandoval, a nonverbal autistic adult who lived in a residential facility operated by defendant L & W, was deliberate burned by a heated utensil (potato masher) used by either Chavies or Edwards to control plaintiff. The vicarious liability cause of action dismissed because the alleged burning of plaintiff was outside the scope of Chavies’ and Edwards’ employment:

… L&W conditions all employment offers on at least one satisfactory professional reference.

Despite this policy, L&W did not check the professional references submitted by Chavies or Edwards. Most notably, Chavies indicated on his job application that he had been “let go” from his most recent job working with intellectually disabled children. It is for the jury to determine whether L&W’s lapse in obtaining satisfactory references for both employees constitutes negligent hiring under the circumstances … .

L&W’s claim that the incident was not foreseeable is belied by its own training materials. The SCIP training materials reflect that residential staff face difficult emotional challenges in their positions, and that as a result, the potential for abuse is reasonably foreseeable. The training materials note the “Common Emotional Reactions” that staff may have including “Anger.” The training materials reference the “incidents of abuse” and seek to decrease those incidents “through increasing awareness of the definition and the causative factors of abuse.” The materials also reference the potential that staff might “lose control and strike or verbally abuse a person.” … [A]s the movant, it is L&W’s burden to establish the lack of proximate cause … . … L&W’s causation arguments are undercut by its own hiring policy, which makes an offer of employment contingent on at least one satisfactory professional reference and by the … training materials, which highlight the critical importance of “ongoing staff training” in decreasing abuse. Sandoval v Leake & Watts Servs., Inc., 2020 NY Slip Op 08017, First Dept 12-29-20

 

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