First Department – Page 203 – New York Appellate Digest

DAMAGE TO SOIL FROM LEAD EMISSIONS AND LEAD PAINT COULD NOT BE SEPARATED, ALTHOUGH LEAD PAINT DAMAGE WAS NOT SUBJECT TO THE POLICY EXCLUSION, THE EXCLUSION FOR LEAD EMISSIONS CONTROLLED.

The First Department, in an action seeking reimbursement for environmental cleanup costs, determined the policy exclusion from coverage of lead emissions controlled, even though the soil was also contaminated with lead paint, which was not excluded from coverage:

In this case, not only did the damage result from different sources, i.e., lead emissions and lead paint, but, also, one source is excluded from coverage and the other is not. However, the damage resulting from either source is not readily divisible from the damage resulting from the other. The combined effect of the lead emissions and the lead paint was soil contamination – of the same soil. To the extent a particular area was contaminated solely by lead paint, it was not (and could not have been) included in the EPA’s remediation efforts (see 42 USC § 9604). Moreover, claimant would not have had to pay for any damage – including lead paint damage – if not for the accompanying pollution (see 42 USC § 9607). Thus, the entire claim is barred by the pollution exclusions. Matter of Midland Ins. Co., 2017 NY Slip Op 05171, 1st Dept 6-22-17

INSURANCE LAW (ENVIRONMENTAL CLEANUP, DAMAGE TO SOIL FROM LEAD EMISSIONS AND LEAD PAINT COULD NOT BE SEPARATED, ALTHOUGH LEAD PAINT DAMAGE WAS NOT SUBJECT TO THE POLICY EXCLUSION, THE EXCLUSION FOR LEAD EMISSIONS CONTROLLED)/ENVIRONMENTAL LAW (INSURANCE, DAMAGE TO SOIL FROM LEAD EMISSIONS AND LEAD PAINT COULD NOT BE SEPARATED, ALTHOUGH LEAD PAINT DAMAGE WAS NOT SUBJECT TO THE POLICY EXCLUSION, THE EXCLUSION FOR LEAD EMISSIONS CONTROLLED)POLLUTION EXCLUSIONS (INSURANCE, DAMAGE TO SOIL FROM LEAD EMISSIONS AND LEAD PAINT COULD NOT BE SEPARATED, ALTHOUGH LEAD PAINT DAMAGE WAS NOT SUBJECT TO THE POLICY EXCLUSION, THE EXCLUSION FOR LEAD EMISSIONS CONTROLLED)

June 22, 2017

Family Law

MOTHER’S PETITION TO RELOCATE TO FLORIDA PROPERLY DENIED, INSUFFICIENT SHOWING THE MOVE WOULD BE IN THE BEST INTERESTS OF THE CHILD.

The First Department, in a full-fledged opinion by Justice Kapnick, concluded Family Court properly denied mother’s petition to relocate to Florida. Mother was not sure where she would live or work or how child care would be arranged. It did not appear father would be able to visit the child in Florida. The fact that father was behind in child support was not enough to show the relocation would be in the best interests of the child. Matter of Salena S. v Ahmad G., 2017 NY Slip Op 05172, 1st Dept 6-22-17

FAMILY LAW (MOTHER’S PETITION TO RELOCATE TO FLORIDA PROPERLY DENIED, INSUFFICIENT SHOWING THE MOVE WOULD BE IN THE BEST INTERESTS OF THE CHILD)/RELOCATION (FAMILY LAW, MOTHER’S PETITION TO RELOCATE TO FLORIDA PROPERLY DENIED, INSUFFICIENT SHOWING THE MOVE WOULD BE IN THE BEST INTERESTS OF THE CHILD)

June 22, 2017

Appeals, Criminal Law

DEFENDANT EXPRESSLY DENIED THE INTENT ELEMENT OF UNLAWFUL POSSESSION OF A WEAPON DURING THE PLEA COLLOQUY, THE JUDGE DID NOT ADEQUATELY ADDRESS THE ISSUE, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ERROR.

The First Department, reversing defendant’s conviction by guilty plea, in the absence of preservation of the error, determined the plea colloquy negated an essential element of the crime. Unlawful possession of a weapon requires an intent to use the weapon unlawfully. Although such intent can be presumed, here defendant expressly negated it:

This is a “rare case” where the preservation requirement for challenges to guilty pleas does not apply because “defendant’s factual recitation negate[d] an essential element of the crime pleaded to” and the court “accept[ed] the plea without making further inquiry to ensure that defendant underst[ood] the nature of the charge and that the plea [was] intelligently entered” .. . The crime of attempted possession of a weapon in the second degree requires that a defendant intend to use the weapon unlawfully against another. However, during the plea colloquy, defendant explicitly, repeatedly and consistently denied any intent to use the weapon against anyone, lawfully or otherwise, at the time the police recovered it or at any other time. The court asked followup questions, but they were ineffectual because defendant’s responses only reconfirmed that he expressly denied having the requisite intent. Although an express admission of unlawful intent may not have been necessary in the first place, particularly because such intent is presumed (see Penal Law § 265.15[4]), defendant expressly negated that intent. People v Medina-Feliz, 2017 NY Slip Op 05053, 1st Dept 6-20-17

CRIMINAL LAW (GUILTY PLEA, DEFENDANT EXPRESSLY DENIED THE INTENT ELEMENT OF UNLAWFUL POSSESSION OF A WEAPON DURING THE PLEA COLLOQUY, THE JUDGE DID NOT ADEQUATELY ADDRESS THE ISSUE, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ERROR)/APPEALS, (CRIMINAL LAW, GUILTY PLEA, DEFENDANT EXPRESSLY DENIED THE INTENT ELEMENT OF UNLAWFUL POSSESSION OF A WEAPON DURING THE PLEA COLLOQUY, THE JUDGE DID NOT ADEQUATELY ADDRESS THE ISSUE, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ERROR)/GUILTY PLEA (DEFENDANT EXPRESSLY DENIED THE INTENT ELEMENT OF UNLAWFUL POSSESSION OF A WEAPON DURING THE PLEA COLLOQUY, THE JUDGE DID NOT ADEQUATELY ADDRESS THE ISSUE, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ERROR)/WEAPON POSSESSION (UNLAWFUL POSSESSION OF A WEAPON REQUIRES AN INTENT TO USE THE WEAPON UNLAWFULLY, EXPRESS DENIAL OF THAT ELEMENT REQUIRED REVERSAL OF GUILTY PLEA)

June 20, 2017

Civil Procedure

MOTION TO COMPEL DISCOVERY OF INFORMATION POSTED ON FACEBOOK SHOULD HAVE BEEN GRANTED.

The First Department, reversing Supreme Court, determined the defendant city was entitled to compel discovery of plaintiff’s Facebook posts in this wrongful arrest and prosecution action. The Facebook information tended to show the use of an alias by plaintiff (Moe), which plaintiff had denied, and included a photograph of plaintiff’s nephew who was present at the premises where the search warrant was executed:

… [T]he City made a threshold showing that examination of the above Facebook accounts will result in the disclosure of relevant evidence bearing on the claim… . As such, plaintiff is directed to review and provide or permit access to those Facebook and associated Messenger accounts, including their messenger components, and any deleted materials which contain any information connecting plaintiff to the accounts in question, connecting him to any variation of the nickname “Moe,” or relevant to his claims that he has had no connection to the apartment searched or the contraband located thereat. Plaintiff shall also provide an authorization permitting Facebook to release the photograph purported to be of plaintiff’s nephew, including any metadata associated with the photograph. Production shall be made within 30 days of this order and it is without prejudice to plaintiff seeking, prior to the expiration of the 30-day period, a protective order for expressly identified materials on these Facebook accounts seeking protection from discovery for reasons other than relevancy. Flowers v City of New York, 2017 NY Slip Op 05040, 1st Dept 6-20-17

CIVIL PROCEDURE (DISCOVERY, FACEBOOK POSTS, MOTION TO COMPEL DISCOVERY OF INFORMATION POSTED ON FACEBOOK SHOULD HAVE BEEN GRANTED)/DISCOVERY (CIVIL PROCEDURE, FACEBOOK POSTS, MOTION TO COMPEL DISCOVERY OF INFORMATION POSTED ON FACEBOOK SHOULD HAVE BEEN GRANTED)/FACEBOOK (CIVIL PROCEDURE, MOTION TO COMPEL DISCOVERY OF INFORMATION POSTED ON FACEBOOK SHOULD HAVE BEEN GRANTED)

June 20, 2017

Civil Procedure, Municipal Law, Negligence

THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE.

The First Department, reversing Supreme Court, determined the plaintiff’s verdict against the transit authority in this slip and fall case should not have been set aside. Plaintiff regularly used the unlighted subway stairway when he returned from work without incident. The jury, therefore, could reasonably have found plaintiff’s use of the unlighted stairway was not negligent:

In this action for personal injuries, plaintiff alleges that he fell while descending a covered and unlit exterior subway staircase owned by defendant. The jury found that defendant was negligent in its maintenance of the lighting on the staircase, that defendant’s negligence was a substantial factor in causing plaintiff’s injuries’, and that plaintiff was not negligent.

The trial court erred in setting aside as against the weight of the evidence the jury’s finding that plaintiff was not negligent … . Although plaintiff conceded that he descended an unlighted staircase, the jury could reasonably have concluded that his decision to do so was not negligent, as plaintiff testified that he used the same staircase every night while coming home from work, and had in fact done so without incident on previous evenings when the lights were inoperative. Sanchez v New York City Tr. Auth., 2017 NY Slip Op 04899, 1st Dept 6-15-17

NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/MUNICIPAL LAW (SLIP AND FALL, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/CIVIL PROCEDURE (SET ASIDE VERDICT, NEGLIGENCE, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/SLIP AND FALL (MUNICIPAL LAW, NEGLIGENCE, CIVIL PROCEDURE, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)

June 15, 2017

Civil Procedure, Municipal Law, Negligence

THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE.

The First Department, reversing Supreme Court, determined the plaintiff’s verdict against the transit authority in this slip and fall case should not have been set aside. Plaintiff regularly used the unlighted subway stairway when he returned from work without incident. The jury, therefore, could reasonably have found plaintiff’s use of the unlighted stairway was not negligent:

In this action for personal injuries, plaintiff alleges that he fell while descending a covered and unlit exterior subway staircase owned by defendant. The jury found that defendant was negligent in its maintenance of the lighting on the staircase, that defendant’s negligence was a substantial factor in causing plaintiff’s injuries’, and that plaintiff was not negligent.

The trial court erred in setting aside as against the weight of the evidence the jury’s finding that plaintiff was not negligent … . Although plaintiff conceded that he descended an unlighted staircase, the jury could reasonably have concluded that his decision to do so was not negligent, as plaintiff testified that he used the same staircase every night while coming home from work, and had in fact done so without incident on previous evenings when the lights were inoperative. Sanchez v New York City Tr. Auth., 2017 NY Slip Op 04899, 1st Dept 6-15-17

NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/MUNICIPAL LAW (SLIP AND FALL, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/CIVIL PROCEDURE (SET ASIDE VERDICT, NEGLIGENCE, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)/SLIP AND FALL (MUNICIPAL LAW, NEGLIGENCE, CIVIL PROCEDURE, THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE)

June 15, 2017

Evidence, Medical Malpractice, Negligence

EXPERT AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE.

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over a two-justice dissenting opinion by Justice Andrias, determined plaintiff’s expert affidavit was sufficient to raise a question of fact whether the school nurse’s failure to tell plaintiff to remove a contraceptive device (NuvaRing) was a proximate cause of blood clots which resulted in severe brain damage. The dissent argued plaintiff’s expert affidavit was conclusory and speculative, insufficient to defeat defendant’s expert’s opinion that removing the NuvaRing would not have prevented the blood clots which occurred seven days after plaintiff complained to the nurse practitioner about chest pains:

Montefiore [the defendant which employed the nurse practitioner at the school clinic] made a prima facie case through its expert, Dr. Bardack, that it was not the proximate cause of plaintiff’s injuries … . In opposition, plaintiff’s expert raised an issue of fact concerning causation. We disagree with the dissent that the affidavit of Dr. Gold was speculative and conclusory. Dr. Gold specifically opined that if the nurse practitioner had properly assessed plaintiff, instructed her to remove the NuvaRing, and referred her for further assessment, plaintiff’s subsequent injuries and complications would have been avoided. Had the nurse properly assessed plaintiff as suffering from the symptoms of a blood clot, she could have instructed plaintiff to remove the ring immediately, thereby at least beginning to correct any clotting imbalance. As Montefiore’s expert acknowledges, “clot risk is gradually decreased after the ring is removed.” Thus, while the nurse was not in a position to treat clots, she certainly was in a position to make the diagnosis and to direct the plaintiff to remove the likely source of her symptoms, lessening the risk of an adverse outcome.

Montefiore asserts that even if the NuvaRing had been removed on June 1, thromboembolism was nonetheless likely to ensue, relying on FDA guidelines concerning presurgical protocols; Dr. Gold, however, opined that the risk of blood clotting would have subsided had the ring been removed. At this stage, plaintiff’s expert’s affidavit suffices to raise a factual issue as to the element of causation.

It may well be that the medical professionals who subsequently treated plaintiff are also at fault for failing to work her up for thromboembolism and failing to remove or direct her to remove the NuvaRing. Issues of relative culpability await resolution at trial. Plaintiff’s submissions raise an issue of fact as to the liability of the nurse practitioner sufficient to defeat summary judgment. Adams v Pilarte, 2017 NY Slip Op 04913, 1st Dept 6-15-17

NEGLIGENCE (MEDICAL MALPRACTICE, EXPERT AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE)/MEDICAL MALPRACTICE (EXPERT OPINION, EXPERT AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE)/EXPERT OPINION (MEDICAL MALPRACTICE, EXPERT AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE)/EVIDENCE (MEDICAL MALPRACTICE, EXPERT OPINION, EXPERT AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE)/NUVARING (MEDICAL MALPRACTICE, AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE)

June 15, 2017

Criminal Law

THE TOTALITY OF THE RECORD INDICATED DEFENSE COUNSEL WAIVED THE SPEEDY TRIAL RULE, SUPREME COURT REVERSED.

The First Department, reversing Supreme Court, determined defense counsel waived the speedy trial (CPL 30.30) rule. In response to the prosecutor’s request that the waiver go back to the date of the arraignment, defense counsel stated a preference that the waiver start at the time of the agreement to it, but “if you insist” waiver from arraignment would be acceptable. Supreme Court reasoned that the phrase “if you insist” required further negotiation (which did not take place). The First Department held that, based on the totality of the record, defense counsel agreed to starting the waiver at the time of arraignment:

In assessing whether time is properly excluded, a court should look to the totality of the record … . Here, based on a fair reading of the whole record, we conclude that defense counsel expressly waived inclusion of the 52-day period. Central to the court’s reasoning was that the prosecutor “did not insist’ or otherwise respond” after defense counsel wrote “I’d be inclined to waive from today, but if you insist on 1/24 that’s acceptable.” However, in this exchange, “insistence” was not an eventuality that had to be confirmed by further action of the prosecutor, but an already clearly stated position. The prosecutor had already, in her March 16 email, insisted on a waiver of “all 30.30 time,” extending back to the arraignment — requiring such a total waiver as a condition of negotiations. She had explained that if defendant were not willing to waive all 30.30 time, the case would be presented to the current grand jury.

The March 17 email repeated, even more explicitly, the prerequisite — to which defendant had already agreed — that defendant waive speedy trial time going back to January 24. There was no need for the People to again insist on this because they had unequivocally insisted on it from the beginning of the conversation. As a realistic matter, the question whether the People insisted on this was not an open one, and defense counsel did not treat it as unresolved. He “accept[ed]” the waiver running back to the time of arraignment and promised to call the prosecutor the following week to make arrangements for a “presentation to you.” People v Lewins, 2017 NY Slip Op 04908, 1st Dept 6-15-17

CRIMINAL LAW (THE TOTALITY OF THE RECORD INDICATED DEFENSE COUNSEL WAIVED THE SPEEDY TRIAL RULE, SUPREME COURT REVERSED)/SPEEDY TRIAL (WAIVER, THE TOTALITY OF THE RECORD INDICATED DEFENSE COUNSEL WAIVED THE SPEEDY TRIAL RULE, SUPREME COURT REVERSED)

June 15, 2017

Criminal Law

MISDEMEANOR COMPLAINT DID NOT INCLUDE FACTS DEMONSTRATING THE ARREST OF DEFENDANT’S BROTHER WAS AUTHORIZED, THEREFORE THE COMPLAINT CHARGING DEFENDANT WITH RESISTING ARREST AND OBSTRUCTING GOVERNMENTAL ADMINISTRATION WAS JURISDICTIONALLY DEFECTIVE.

The First Department, over a dissent, determined the misdemeanor complaint charging resisting arrest and obstructing governmental administration was jurisdictionally defective. The complaint alleged defendant interfered in the arrest of her brother and then herself resisted arrest. But the complaint did not allege the basis for the arrest of defendant’s brother and therefore did not demonstrate the brother’s arrest was “authorized,” an essential element of the offense:

The factual part of the complaint merely states that the officer was “attempting to effectuate the arrest of [defendant’s brother].” However, the complaint contains no factual allegations that would establish, if true, that the underlying arrest of defendant’s brother was authorized. Thus, the complaint fails to allege facts sufficient to establish all the essential elements of the crime of obstructing governmental administration in the second degree. Because the information fails to allege sufficient facts supporting the underlying obstructing governmental administration charge, it is also insufficient to allege that defendant’s arrest on that charge was “authorized,” as required by Penal Law § 205.30. Therefore, defendant is also entitled to dismissal of the resisting arrest charge … .

The dissent acknowledges that an element of the crime of obstructing governmental administration is that the underlying arrest was authorized, but nevertheless concludes that this essential element need not be alleged in the factual part of an information. This position, however, cannot be reconciled with the statutory requirement that an information contain “nonhearsay allegations [that] establish, if true, every element of the offense charged”… . People v Sumter, 2017 NY Slip Op 04897, 1st Dept 6-15-17

CRIMINAL LAW (MISDEMEANOR COMPLAINT DID NOT INCLUDE FACTS DEMONSTRATING THE ARREST WAS AUTHORIZED, THEREFORE THE COMPLAINT CHARGING RESISTING ARREST AND OBSTRUCTING GOVERNMENTAL ADMINISTRATION WAS JURISDICTIONALLY DEFECTIVE)/MISDEMEANOR COMPLAINT (MISDEMEANOR COMPLAINT DID NOT INCLUDE FACTS DEMONSTRATING THE ARREST WAS AUTHORIZED, THEREFORE THE COMPLAINT CHARGING RESISTING ARREST AND OBSTRUCTING GOVERNMENTAL ADMINISTRATION WAS JURISDICTIONALLY DEFECTIVE)/JURISDICTION (CRIMINAL LAW, MISDEMEANOR COMPLAINT DID NOT INCLUDE FACTS DEMONSTRATING THE ARREST WAS AUTHORIZED, THEREFORE THE COMPLAINT CHARGING RESISTING ARREST AND OBSTRUCTING GOVERNMENTAL ADMINISTRATION WAS JURISDICTIONALLY DEFECTIVE)/RESISTING ARREST (MISDEMEANOR COMPLAINT DID NOT INCLUDE FACTS DEMONSTRATING THE ARREST WAS AUTHORIZED, THEREFORE THE COMPLAINT CHARGING RESISTING ARREST AND OBSTRUCTING GOVERNMENTAL ADMINISTRATION WAS JURISDICTIONALLY DEFECTIVE)/OBSTRUCTING GOVERNMENTAL ADMINISTRATION (MISDEMEANOR COMPLAINT DID NOT INCLUDE FACTS DEMONSTRATING THE ARREST WAS AUTHORIZED, THEREFORE THE COMPLAINT CHARGING RESISTING ARREST AND OBSTRUCTING GOVERNMENTAL ADMINISTRATION WAS JURISDICTIONALLY DEFECTIVE)

June 15, 2017

Attorneys, Insurance Law, Labor Law-Construction Law, Workers' Compensation

INSURER WHICH OPTED NOT TO DEFEND THIS CONSTRUCTION ACCIDENT CASE WAS REQUIRED TO INDEMNIFY THE INSURERS WHICH SETTLED THE CLAIM FOR BOTH DAMAGES AND EXCESS ATTORNEYS’ FEES, PLAINTIFF HIRED A MORE EXPENSIVE LAW FIRM ($795/HR) RATHER THAN USE THE FIRM HIRED BY THE WORKERS’ COMPENSATION CARRIER ($150/HR).

The First Department, over a dissent, determined the plaintiff’s insurer (RLI), which opted not to defend this construction accident case, was required to indemnify the insurers who paid the $2.5 million settlement, both for the damages and the excess attorney’s fees. The plaintiff opted to hire a law firm other that the firm used by the workers’ compensation carrier (SLI). The workers’ compensation carrier paid $150/hour toward the other attorneys’ fees. The firm hired by plaintiff (Greenberg Traurig) charged $795/hr. The dissent argued the fees should have been capped at $150/hr. The other issue addressed by the court was the late notification of plaintiff’s insurer. The late notice was excused because of a good faith belief recovery was limited to workers’ compensation (and therefore subject to a policy exclusion):

RLI’s argument that the voluntary payment doctrine bars recovery of amounts paid to Greenberg Traurig in defense of the underlying claim is without merit. Having chosen to deny coverage and not participate in the defense, RLI “excluded itself from any aspect of the [p]laintiff’s defense in the Vasquez estate’s action,” including the negotiation of attorneys’ fees and the selection of attorneys, as so found by the motion court, and cannot now be heard to complain. Plaintiff is entitled to recover attorneys’ fees incurred in defense of the underlying action as “damages which are the natural and probable consequence of the breach” by RLI of the contract of insurance … .

We reject defendant’s argument that the $150 per hour contributed by SIF acts as a ceiling on fees … . Any agreement between SIF and plaintiff as to fees has no bearing on RLI’s responsibility to provide a defense, save as it pertains to any eventual allocation of defense costs as between the two carriers … . The record does not contain a copy of the SIF policy, so we are unable to make any determination as to whether the carriers share the costs of defense in equal parts as primary carriers, or whether defendant RLI is solely responsible. It may be noted that under RLI’s policy, competing primary insurers are to contribute on an equal basis. Cohen Bros. Realty Corp. v RLI Ins. Co., 20 17 NY Slip Op 04776, 1st Dept 6-13-17

INSURANCE LAW (ATTORNEY’S FEES, INSURER WHICH OPTED NOT TO DEFEND THIS CONSTRUCTION ACCIDENT CASE WAS REQUIRED TO INDEMNIFY THE INSURERS WHICH SETTLED THE CLAIM FOR BOTH DAMAGES AND EXCESS ATTORNEYS’ FEES, PLAINTIFF HIRED A MORE EXPENSIVE LAW FIRM ($795/HR) RATHER THAN USE THE FIRM HIRED BY THE WORKERS’ COMPENSATION CARRIER ($150/HR))/ATTORNEYS (INSURANCE LAW, FEES, INSURER WHICH OPTED NOT TO DEFEND THIS CONSTRUCTION ACCIDENT CASE WAS REQUIRED TO INDEMNIFY THE INSURERS WHICH SETTLED THE CLAIM FOR BOTH DAMAGES AND EXCESS ATTORNEYS’ FEES, PLAINTIFF HIRED A MORE EXPENSIVE LAW FIRM ($795/HR) RATHER THAN USE THE FIRM HIRED BY THE WORKERS’ COMPENSATION CARRIER ($150/HR))/EMPLOYMENT LAW (INSURANCE LAW, WORKERS’ COMPENSATION LAW, INSURER WHICH OPTED NOT TO DEFEND THIS CONSTRUCTION ACCIDENT CASE WAS REQUIRED TO INDEMNIFY THE INSURERS WHICH SETTLED THE CLAIM FOR BOTH DAMAGES AND EXCESS ATTORNEYS’ FEES, PLAINTIFF HIRED A MORE EXPENSIVE LAW FIRM ($795/HR) RATHER THAN USE THE FIRM HIRED BY THE WORKERS’ COMPENSATION CARRIER ($150/HR))

June 13, 2017

Tag Archive for: First Department

DAMAGE TO SOIL FROM LEAD EMISSIONS AND LEAD PAINT COULD NOT BE SEPARATED, ALTHOUGH LEAD PAINT DAMAGE WAS NOT SUBJECT TO THE POLICY EXCLUSION, THE EXCLUSION FOR LEAD EMISSIONS CONTROLLED.

MOTHER’S PETITION TO RELOCATE TO FLORIDA PROPERLY DENIED, INSUFFICIENT SHOWING THE MOVE WOULD BE IN THE BEST INTERESTS OF THE CHILD.

DEFENDANT EXPRESSLY DENIED THE INTENT ELEMENT OF UNLAWFUL POSSESSION OF A WEAPON DURING THE PLEA COLLOQUY, THE JUDGE DID NOT ADEQUATELY ADDRESS THE ISSUE, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ERROR.

MOTION TO COMPEL DISCOVERY OF INFORMATION POSTED ON FACEBOOK SHOULD HAVE BEEN GRANTED.

THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE.

THE JURY COULD HAVE REASONABLY FOUND PLAINTIFF’S REGULAR USE OF THE UNLIGHTED SUBWAY STAIRWAY WAS NOT NEGLIGENT, PLAINTIFF’S VERDICT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN SET ASIDE.

EXPERT AFFIDAVIT SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER THE SCHOOL NURSE’S FAILURE TO TELL PLAINTIFF TO REMOVE A CONTRACEPTIVE DEVICE WAS A PROXIMATE CAUSE OF BLOOD CLOTS AND SEVERE BRAIN DAMAGE.

THE TOTALITY OF THE RECORD INDICATED DEFENSE COUNSEL WAIVED THE SPEEDY TRIAL RULE, SUPREME COURT REVERSED.

MISDEMEANOR COMPLAINT DID NOT INCLUDE FACTS DEMONSTRATING THE ARREST OF DEFENDANT’S BROTHER WAS AUTHORIZED, THEREFORE THE COMPLAINT CHARGING DEFENDANT WITH RESISTING ARREST AND OBSTRUCTING GOVERNMENTAL ADMINISTRATION WAS JURISDICTIONALLY DEFECTIVE.

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