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THE BUILDING OWNER AND MANAGER WERE ADDITIONAL INSUREDS UNDER A POLICY ISSUED TO THE CONTRACTOR HIRED TO RENOVATE CONCRETE WALKWAYS; THE OWNER AND MANAGER ARE ENTITLED TO COVERAGE FOR A SLIP AND FALL ALLEGED TO HAVE BEEN CAUSED BY PAINTING THE WALKWAYS ALL THE SAME COLOR AND THEREBY DISGUISING A CHANGE IN ELEVATION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, determined plaintiffs are additional insureds under an insurance policy issued by defendant to nonparty Upgrade, the contractor hired to restore concrete catwalks. Plaintiffs, Windsor Apartments and Argo Real Estate, are entitled to coverage for a slip and fall in plaintiffs’ building allegedly caused by painting the floor all the same color, thereby disguising a change in elevation:

Defendant State National issued a commercial general liability (CGL) policy to Upgrade during the relevant time period. The policy contained a “Blanket Additional Insured” Endorsement that limited coverage to operations performed by or on behalf of Upgrade:

“It is agreed that this Policy shall include as additional Insureds any person or organization to whom the Named Insured [Upgrade] has agreed by written contract to provide coverage, but only with respect to operations performed by or on behalf of the Named Insured and only with respect to occurrences subsequent to the making of such written contract.”

The State National policy also stated that its coverage was primary, with exceptions not applicable here, for damages arising out of the premises or operations for which an entity is added as an additional insured.

The policy issued by plaintiff Fireman’s Fund Insurance Company (Fireman’s) to Windsor and Argo provided that coverage was excess when its insureds, Windsor and Argo, have other primary insurance available to them covering liability for damages arising out of the premises or operations for which they have been added as an additional insured. * * *

… [S]ince the injury to the plaintiff in the underlying action here “arose out of” Upgrade’s operation of painting the walkways, plaintiffs are additional insureds under the State National policy and the policy is primary in connection with the underlying action. Fireman’s Fund Ins. Co. v State Natl. Ins. Co., 2019 NY Slip Op 09399, First Dept 12-26-19

 

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PLAINTIFF’S ALLEGATIONS OF RAPE AND SEXUAL ASSAULT BY DEFENDANT ARE SUFFICIENT TO ALLEGE A CAUSE OF ACTION UNDER NEW YORK CITY’S VICTIMS OF GENDER-MOTIVATED VIOLENCE PROTECTION LAW; THERE IS NO NEED TO ALLEGE SIMILAR ASSAULTS AGAINST OTHER WOMEN TO DEMONSTRATE ANIMUS ON THE BASIS OF GENDER (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, over a concurring opinion, determined that plaintiff’s complaint, alleging rape and sexual assault, stated a valid cause of action under New York City’s Victims of Gender-Motivated Violence Protection Law (VGM). The central question on appeal was the meaning of the term “animus.” Supreme Court held that allegations defendant had sexually assaulted other women were properly included in the complaint to demonstrate animus. The First Department held plaintiff’s allegations of rape and assault, without allegations involving other women, were sufficient:

… [P]laintiff’s claims in the amended complaint that she was raped and sexually assaulted are sufficient to allege animus on the basis of gender. She need not allege any further evidence of gender-based animus. Defendant has conceded that the allegations herein are sufficient to show that the acts alleged were “committed because of gender or on the basis of gender.” That the alleged rape and sexual assault was “due, at least in part, to an animus based on the victim’s gender” is sufficiently pleaded by the nature of the crimes alleged.

Rape and sexual assault are, by definition, actions taken against the victim without the victim’s consent … . Without consent, sexual acts such as those alleged in the complaint are a violation of the victim’s bodily autonomy and an expression of the perpetrator’s contempt for that autonomy. Coerced sexual activity is dehumanizing and fear-inducing. Malice or ill will based on gender is apparent from the alleged commission of the act itself. Animus inheres where consent is absent. Breest v Haggis, 2019 NY Slip Op 09398, First Dept 12-26-19

 

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FAILURE TO INFORM THE DEFENSE ABOUT A SECOND EYEWITNESS TO THE SHOOTING WAS A REVERSIBLE BRADY VIOLATION, THE MOTION TO VACATE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mazzarelli, reversing Supreme Court, over a dissent, granted defendant’s motion to vacate his conviction and ordered a new trial, based upon the People’s failure to notify the defense of a second eyewitness to the shooting (a Brady violation). The opinion is too detailed factually and too comprehensive legally to fully summarize here:

Several months after the trial concluded, the assistant district attorney who tried the case received an inter-office email attaching a report from a detective who had interviewed an eyewitness to the shooting. The ADA and another prosecutor had themselves interviewed the witness before the trial, having learned that a man who had been arrested for a drug sale near the Polo Grounds told a detective that he had seen the Philips shooting. The prosecutors spoke to the eyewitness in the detective’s presence, and no one took notes. Both prosecutors recalled only that the witness said he saw a man in brown clothes go down the 110 step-staircase, shoot Phillips, and go back up the steps. The ADA concluded that the statement was “cumulative” and did not disclose it to the defense. However, after receiving the email, he notified defendant’s trial counsel about the witness, and attached the report, which he stated he had not known had ever been created. * * *

Defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction on the ground that it was obtained in violation of his state and federal constitutional rights, including his rights under Brady. Defendant noted that the prosecution failed to disclose that it had interviewed a second eyewitness two years before trial and failed to disclose the report. Defendant’s trial lawyer submitted an affirmation in which he explained how timely disclosure of the information would have affected his preparation of the defense, including a misidentification defense. His investigator also submitted an affidavit in which he stated that timely disclosure would have been valuable because the statement contained “several strong leads.” For example, he would have spoken to the eyewitness before his memory faded or he became uncooperative, and he would have located the other two people who were sitting with the eyewitness. In addition, the rumor that Phillips robbed Social Security recipients was another lead that would have caused the investigator to seek out people not otherwise on the defense “radar” for potential leads about Phillips or those who wanted to kill him. People v McGhee, 2019 NY Slip Op 09116, First Dept 12-19-19

 

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CONTINUOUS REPRESENTATION DOCTRINE APPLIED TO AN ENGINEERING FIRM HIRED TO OVERSEE AN HVAC INSTALLATION PROJECT; THE THREE-YEAR NEGLIGENCE STATUTE OF LIMITATIONS WAS TOLLED BY THE CONTINUOUS REPRESENTATION DOCTRINE AND THE ACTION WAS TIMELY (FIRST DEPT).

The First Department determined the negligence action against Skyline, an engineering firm hired to inspect an on-going HVAC (heating, ventilation, air conditioning) installation, was not time-barred because the continuous representation doctrine applied to toll the accrual of the limitations period:

Plaintiff commenced this action in 2016 alleging that it retained Skyline, an engineering firm, to perform “special inspection” services for “Phase I” of an HVAC installation project, and that Skyline negligently performed those services and breached the contract. In support of its motion for summary judgment, Skyline demonstrated prima facie that it completed Phase I work under the contract in 2012 and that it was serving in a professional capacity as an engineering firm when it performed those services, so that the three-year limitations period applied (CPLR 214[6] … ). …

… [P]plaintiff demonstrated that the action is not time-barred because the continuous representation doctrine is applicable and tolled the accrual of the limitations period until 2014 … . Plaintiff submitted evidence showing Skyline provided special and progress inspection and testing services for “Remediation of Phase I” of the project, pursuant to a 2014 agreement. Although this work was completed under a separate agreement, Skyline rendered these services to correct the engineering and construction defects that it failed to identify during its Phase 1 inspection in 2012. Since Skyline continued to provide services in connection with Phase I in 2014, the action commenced in 2016 is timely under CPLR 214(6) … . Mutual Redevelopment Houses, Inc. v Skyline Eng’g, L.L.C, 2019 NY Slip Op 09112, First Dept 12-19-19

 

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DEFENDANT DRIVER WAS ENTITLED TO SUMMARY JUDGMENT IN THIS BICYCLE-CAR TRAFFIC ACCIDENT CASE; PLAINTIFF BICYCLIST WAS TRAVELING THE WRONG WAY ON A ONE-WAY STREET AND DID NOT SLOW DOWN APPROACHING THE INTERSECTION WHERE HE COLLIDED WITH THE SIDE OF DEFENDANT’S CAR (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant driver was entitled to summary judgment in this bicycle-car collision case. Plaintiff was bicycling in the wrong direction on a one-way street. Defendant pulled out into the intersection after checking the traffic in the appropriate direction and plaintiff ran into the side of defendant’s car:

Pursuant to Vehicle and Traffic Law § 1231, a person riding a bicycle on a roadway has the same rights and responsibilities as a driver of a motor vehicle. Therefore, a bicyclist is required to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself into a dangerous position … .

Vehicle and Traffic Law § 1142(b) states that a “driver of a vehicle approaching a yield sign shall . . . slow down to a speed reasonable for existing conditions, or shall stop if necessary,” and “yield the right of way . . . to any vehicle in the intersection or approaching on another highway so closely as to constitute an immediate hazard during the time such driver is moving across or within the intersection.” In addition, Vehicle and Traffic Law § 1146(a) requires motorists to “exercise due care to avoid colliding with any bicyclist, pedestrian, or domestic animal” on the roadway and to “give warning by sounding the horn when necessary.”

The undisputed testimony was that plaintiff was traveling in the opposite direction of traffic, in clear violation of Vehicle and Traffic Law § 1231, and traveled into the intersection without stopping or yielding to defendant’s vehicle which was clearly already in the intersection. Admittedly, plaintiff made no attempt to stop, or to alert defendant of his presence. Although a driver of a motor vehicle has a duty to see what is there to be seen, defendant was not required to look in the opposite direction of the intersecting one-way street to see if someone was traveling in the wrong direction and at a speed indicating no intent to stop. Felix v Polakoff, 2019 NY Slip Op 09100, First Dept 12-19-19

 

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NEW YORK COURTS DO NOT HAVE THE AUTHORITY TO ENJOIN A TENNESSEE MORTGAGE FORECLOSURE ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined New York did not have the authority to decide issues affecting title to real property in another state, here Tennessee:

Plaintiff financed its purchase of the property in 2007 with a note secured by a deed of trust. In 2015, plaintiff and defendant trustee entered into a loan modification agreement (LMA) that, inter alia, bifurcated the original loan and allowed Note B to be forgiven if a subsequent sale or refinancing was insufficient to pay the principal and interest thereon. The LMA is governed by Tennessee law but requires plaintiff to submit to the jurisdiction of the courts of this State. It does not similarly require defendant-appellants to submit to the jurisdiction of this State.

Defendant trustee advertised a nonjudicial foreclosure sale (Tenn Code Ann 35-5-101) based on plaintiff’s apparent failure to pay the entire amount due upon maturity, and its failure to cause all rents to be deposited into a lockbox. Plaintiff sued, alleging, among other things, breach of the LMA provision prohibiting the trustee from unreasonably withholding consent to refinancing.

“[T]he courts of one State may not decide issues directly affecting title to real property located in another State” … . Although a court with personal jurisdiction over the parties may adjudicate their rights with respect to foreign realty … , plaintiffs cite no authority allowing an out-of-state foreclosure sale to be enjoined … . Contrary to plaintiff’s argument, its one-sided agreement to submit to personal jurisdiction in New York does not confer upon the New York courts a contractual right to enjoin an out-of-state foreclosure sale. Clark Tower, LLC v Wells Fargo Bank, N.A., 2019 NY Slip Op 08975, First Dept 12-17-19

 

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THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S DECEDENT, WHO WAS IN A VEGETATIVE STATE, EXPERIENCED PAIN; THE DEFENDANT HOSPITALS’ MOTION TO DISMISS THE CONSCIOUS PAIN AND SUFFERING CLAIM SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the hospital’s motion to dismiss the conscious pain and suffering claim should not have been granted. Plaintiff’s decedent was in a vegetative state, but there was evidence she was aware of pain:

… [A]lthough she was in a vegetative state, the decedent was generally responsive to pain, and sometimes followed commands or responded to verbal stimuli … . Although defendants’ experts opined that reflex responses to pain, such as grimacing or withdrawing, are not signs of conscious awareness, at least some of the behaviors recorded in the medical records transcend such reflex responses.

The medical records also reflect that the decedent was administered pain medication in at least one of defendant facilities. Although not dispositive, this fact suggests that the decedent’s doctors believed that she might be able to experience pain.

In addition, plaintiff testified that, while at defendants’ facilities, the decedent made expressions of pain or emotion, such as moaning, crying, or smiling, and communicated with her by blinking … . Plaintiff’s belief that the decedent blinked in response to questions was reflected in the medical records, although the phenomenon was not itself observed by others. …

Plaintiff’s expert also opined that the decedent “had a sufficient level of awareness to enable her to feel pain,” as evidenced by the fact that she “made facial expressions, smiled, … grimaced, moaned, blinked, responded to simple questions, responded to verbal and tactile stimuli, and retracted to pain,” all of which were “indicators of some level of awareness and conscious pain. Estreich v Jewish Home Lifecare, 2019 NY Slip Op 08970, First Dept 12-17-19

 

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RESPONDENT IN THIS CUSTODY AND VISITATION PROCEEDING TO DETERMINE WHETHER SHE HAS STANDING TO ASSERT PARENTAL RIGHTS IS ENTITLED, PURSUANT TO DOMESTIC RELATIONS LAW 237, TO ATTORNEY’S FEES PAID BY THE “MORE MONIED” PETITIONER; RESPONDENT WAS PROPERLY CONSIDERED TO BE A “PARENT” WITHIN THE MEANING OF DOMESTIC RELATIONS LAW 237 FOR THE NARROW PURPOSE OF ENTITLEMENT TO ATTORNEY’S FEES AT THIS PRELIMINARY STAGE OF THE PROCEEDINGS (FIRST DEPT).

The First Department, in a matter of first impression, held that respondent in this custody proceeding was properly considered to be a parent for the narrow purpose of awarding attorney’s fees to be paid by the “more monied” party pursuant to Domestic Relations Law 237. The issue whether respondent has standing to assert parental rights was the purpose of the underlying proceeding:

This case raises an issue of first impression for this Court, that is, whether in a proceeding to establish standing to assert parental rights in seeking visitation and custody under Domestic Relations Law § 70 … , the court has discretion to direct the “more monied” party to pay the other party’s counsel and expert fees under Domestic Relations Law § 237 before that party has been adjudicated a parent. We find that it does.

Domestic Relations Law § 237(b), which is a statutory exception to the general rule that each party is responsible for her own legal fees … , provides, in relevant part, that “upon any application . . . concerning custody, visitation or maintenance of a child, the court may direct a spouse or parent to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse or parent to enable the other party to carry on or defend the application or proceeding by the other spouse or parent as, in the court’s discretion, justice requires . . . .” This statute, like Domestic Relations Law § 70, does not define the term “parent.” * * * … [W]e conclude that highly inequitable results would flow in this case from permitting the party with far greater resources to seek custody as against the child’s primary parent without allowing that parent to seek counsel fees. Without determining that she is a parent for purposes beyond the application of Domestic Relations Law § 237(b), we find that Domestic Relations Law § 237(b) must be read to permit the court to direct petitioner to pay respondent’s counsel fees as necessary “to enable [her] to. . . defend the application. . . as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties.” Matter of Kelly G. v Circe H., 2019 NY Slip Op 08961, First Dept 12-17-19

 

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ELEVATOR MAINTENANCE COMPANY DID NOT DISPLACE THE BUILDING OWNER’S AND MANAGER’S DUTY TO KEEP THE ELEVATORS SAFE AND DID NOT LAUNCH AN INSTRUMENT OF HARM; IT’S MOTION FOR SUMMARY JUDGMENT IN THIS ELEVATOR ACCIDENT CASE SHOULD HAVE BEEN GRANTED; A VIOLATION OF THE NYC BUILDING CODE IS NOT NEGLIGENCE PER SE (FIRST DEPT). ​

The First Department, modifying Supreme Court in this elevator accident case, noted that violation of the NYC Building Code is some evidence of negligence but not negligence per se, and held that Dunwell’s (the elevator maintenance company’s) motion for summary judgment should have been granted. Dunwell had demonstrated two Espinal factors did not apply (it did not displace the building defendants’ obligation to keep the elevators safe and it did not launch an instrument of harm, i.e., it did not exacerbate or create the defects in the elevator):

Dunwell’s motion for summary judgment dismissing all claims against it should be granted. Dunwell cannot be held liable to plaintiff, because it did not owe the decedent any duty. There is no evidence in the record that Dunwell created or exacerbated any of the alleged elevator defects, including the missing door rollers and link arms, even if it were found to have wrongfully failed to diagnose or correct them (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140, 142-143 [2002] … ). Moreover, Dunwell in fact did recommend that these parts be replaced, but its proposal was not accepted by the Building Defendants, and the governing maintenance agreement did not allow Dunwell to replace them without authorization … . The maintenance agreement was not comprehensive and exclusive and therefore did not displace the Building Defendants’ obligations to maintain the elevators in a safe condition … . Plaintiff does not argue that the decedent detrimentally relied on Dunwell’s continued performance of its duties … . Baez v 1749 Grand Concourse LLC, 2019 NY Slip Op 08948, First Dept 12-12-19

 

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POLICIES DID NOT REQUIRE THE INSURER TO DEFEND THE INSURED, BUT DID REQUIRE THE INSURER TO PAY THE INSURED’S DEFENSE COSTS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Friedman, determined that the terms of the policies at issue did not obligate the insurer to defend the insured, but do require the insurer to pay the insured’s defense costs. The opinion is too fact-specific and too comprehensive to fairly summarize here:

In this insurance coverage action brought by a putative additional insured, the liability insurance policies at issue do not impose on the insurers a duty to defend the insured in a covered action. The policies do, however, require the insurers to reimburse the insured for defense costs incurred in an action “in which damages . . . to which this insurance applies are alleged.” The ultimate factual determination in the underlying personal injury actions was that the loss was actually outside the scope of the additional insured coverage. This determination, while it means that the insurers have no duty to indemnify the putative additional insured for its liability to pay damages, is not conclusive of a different question posed to us, which is whether the putative additional insured is entitled reimbursement of its defense costs. * * *

Under the terms of the … policy, the timing of the Port Authority’s demand for reimbursement does not defeat its claim for reimbursement of its defense costs through the time its liability was adjudicated in the underlying actions. … [The] policy entitles the insured to coverage of the costs it incurred in defending “any . . . suit’ to which this policy applies,” and the policy defines the term “suit” to mean an action “in which damages because of bodily injury’ . . . to which this insurance applies are alleged” … . … [U]ntil the jury rendered the verdict adverse to the Port Authority, each of the underlying actions remained a ” suit’ to which th[e] … policy applie[d]” … . Port Auth. of N.Y. & N.J. v Brickman Group Ltd., LLC, 2019 NY Slip Op 08958, First Dept 12-12-19

 

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