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ORDINANCE OR LAW ENDORSEMENT DID NOT REQUIRE INSURER TO PAY FOR REMEDIATION OF CODE VIOLATIONS NOT RELATED TO THE COVERED DAMAGE.

The First Department, in a full-fledged opinion by Justice Saxe, determined a “Blanket Ordinance or Law Coverage Endorsement” did not cover remediation of below-code construction which was not related to the covered damage. Below-code structural concrete was discovered when covered water-related damage was being repaired. Because the below-code concrete was unrelated to the water damage, the “Law Coverage Endorsement” did not obligate the insurer to pay for remedtion of the concrete-work:

Here … the latent problem that was uncovered by inspection necessitated by the covered damage was not a problem related to the covered damage; rather, the inspection discovered a latent, unrelated problem with the building's infrastructure. The condition of the concrete slabs in plaintiff's building, which had to be repaired to bring the building into compliance with the Building Code, bore no relationship to the covered loss — the water damage … .

… The Ordinance or Law endorsement cannot be triggered simply by the discovery, in the course of an inspection necessitated by a covered event, of structural problems that amount to code violations. That is so whether the discovered condition could have been discerned earlier … or where, as here, it could not have been discovered absent the covered damage. St. George Tower v Insurance Co. of Greater N.Y., 2016 NY Slip Op 03100, 1st Dept 4-21-16


FAILURE TO INFORM JURY OF EFFECT OF ACQUITTAL ON THE TOP COUNT BASED ON THE JUSTIFCATION DEFENSE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE.

The First Department reversed defendant's conviction in the interest of justice because the trial judge did not make clear that acquittal of the top count (second degree murder) based on the justification defense required acquittal of the lesser homicide charges:

… [R]eversal in the interest of justice is warranted by the court's failure to convey to the jury, either directly or indirectly, in any part of its charge, that an acquittal on the top count of murder in the second degree based on a finding of justification would preclude consideration of the two lesser homicide charges. While the jury may have acquitted on the top charge without relying on defendant's justification defense, it is nevertheless “impossible to discern whether acquittal of the top count . . . was based on the jurors' finding of justification so as to mandate acquittal on the two lesser counts”… . People v Rowley, 2016 NY Slip Op 03084, 1st Dept 4-21-16


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ADMISSION OF PREJUDICIAL EVIDENCE UNRELATED TO THE CHARGED OFFENSES WAS REVERSIBLE ERROR.

The First Department, in a full-fledged opinion by Justice Richter, determined photographs depicting defendants making gang signs and holding a weapon, as well as Facebook messages sent by a defendant boasting about firing weapons should not have been admitted in this weapons possession trial. Neither the pictures nor the messages related to the weapon defendants' were alleged to have possessed, which was found on the backseat of a car. The prejudicial effect of the evidence outweighed its probative value:

There was no evidence that the gun in the photographs had anything to do with the gun found in the car or with any other criminal activity. … The mere fact that defendants were in possession of a different gun in the past is not probative of whether they knowingly possessed the weapon they were charged with possessing. Nor are the photographs probative of defendants' intent to unlawfully use the weapon found in the car. They merely show defendants displaying a gun, and do not depict any unlawful use of the weapon. * * *

The People concede that [defendant] was not referring to the charged crime in [the Facebook] messages, but to an entirely different incident that occurred months later. Thus, these messages are far too attenuated to have any probative value as to [defendant's] knowledge of the gun found in the car or his intent to use that weapon on the day of the incident … . People v Singleton, 2016 NY Slip Op 02945, 1st Dept 4-19-16


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CLASS ACTION SUIT AGAINST EMPLOYER ALLEGING EMPLOYEES WERE ROUTINELY UNDERPAID ALLOWED TO GO FORWARD.

The First Department determined plaintiffs, former and current non-managerial employees of defendant Jenny Craig (weight-loss centers), established commonality (CPLR 901(a)(2)) such that their class action suit could proceed. 751 class members alleged they were regularly underpaid because 30 minutes of pay was routinely deducted for breaks which the employees did not take:

Where, as here, “the same types of subterfuge [were] allegedly employed to pay lower wages,” commonality of the claims will be found to predominate, even though the putative class members have “different levels of damages” … . Class action is an appropriate method of adjudicating wage claims arising from an employer's alleged practice of underpaying employees, given that “the damages allegedly suffered by an individual class member are likely to be insignificant, and the costs of prosecuting individual actions would result in the class members having no realistic day in court … . Weinstein v Jenny Craig Operations, Inc., 2016 NY Slip Op 02932, 1st Dept 4-19-16


AMENDMENT TO WORKERS’ COMPENSATION LAW WHICH IMPOSED LIABILITY UPON INSURERS FOR REOPENED CASES PREVIOUSLY COVERED BY THE SPECIAL FUND IS UNCONSTITUTIONAL.

The First Department, in a full-fledged opinion by Justice Saxe, reversing Supreme Court, determined an amendment to the Workers' Compensation Law which made insurers liable for reopened cases no longer covered by the special fund (which has been eliminated) was unconstitutional. Although the insurers can adjust their premiums to cover future reopened cases no longer covered by the fund, the insurers can not be compensated for reopened cases from prior to October 1, 2013, when premiums were lower because any reopened cases were the sole responsibility of the fund. The amendment therefore violated the Contract and Takings Clauses:

Plaintiffs … established that the amendment, as applied retroactively, violates the Contract Clause of the US Constitution because it retroactively impairs an existing contractual obligation to provide insurance coverage “[w]here *** the insurer does not have the right to terminate the policy or change the premium rate” … . Defendants failed to show that the impairment is “reasonable and necessary to serve” “a significant and legitimate public purpose *** such as the remedying of a broad and general social or economic problem” … . Indeed, the legislation's stated purpose of preventing a windfall to insurance carriers was based upon the erroneous premise that premiums already cover this new liability.

Retroactive application would also constitute a regulatory taking in violation of the Takings Clause … . American Economy Ins. Co. v State of New York, 2016 NY Slip Op 02924, 1st Dept 4-14-16


EVIDENCE SUFFICIENT TO DEMONSTRATE BUS DRIVER SHOULD HAVE SEEN DECEDENT.

The First Department, over an extensive two-justice dissent, determined there was sufficient evidence to support the jury's conclusion the defendant bus driver was negligent. Plaintiff's decedent was crushed by the bus as the bus pulled out of a bus stop. The driver never saw the decedent. The majority held that the location of the body indicated the decedent should have been seen by the bus driver. The dissent argued the evidence of negligence on the driver's part was speculative and the complaint should have been dismissed. The majority wrote:

Decedent … was found dead under one of defendant Transit Authority's buses. While the bus driver had no explanation for how her body came to be there, plaintiffs' evidence, including DNA evidence matching samples recovered from the bus, was sufficient to support the jury's finding that the bus driver was negligent in operating the bus. The evidence showed facts and conditions from which negligence and causation could “be reasonably inferred” … . In particular, plaintiffs showed that decedent's body had been crushed by the bus at such an angle that the bus driver, pulling out of the bus stop, should have, with the proper use of his senses, seen decedent … . Oates v New York City Tr. Auth., 2016 NY Slip Op 02729, 1st Dept 4-12-16


PLAINTIFF ASSUMED THE RISK OF INJURY CAUSED BY AN OPEN AND OBVIOUS DEFECT IN AN OUTSIDE BASKETBALL COURT.

The First Department determined plaintiff assumed the risk of injury caused by an open and obvious defect in an outdoor basketball court:

… [P]laintiff, an experienced basketball player, voluntarily chose to play basketball on an outdoor court that had an open and obvious defect on its surface … . The crack and/or hole in the basketball court's surface that allegedly caused plaintiff's injury was one of the risks he assumed when he decided to play basketball on the court, which was located in a public park owned and maintained by defendants … . The photographs of the defect and plaintiff's testimony that nothing was blocking the defect before he stepped on it demonstrate that the defect was open and obvious … . Wallace v City of New York, 2016 NY Slip Op 02763, 1st Dept 4-12-16


FACT THAT OBJECT OVER WHICH PLAINTIFF TRIPPED AND FELL WAS OPEN AND OBVIOUS DID NOT RELIEVE DEFENDANT OF LIABILITY AS A MATTER OF LAW.

The First Department determent the fact that the object over which plaintiff tripped and fell was “open and obvious” did not relieve defendant of liability as a matter of law. Plaintiff tripped over a wheeled cart which had been in an aisle of defendant's discount store. A question of fact remained whether defendant maintained the store in a reasonably safe condition. That plaintiff saw the cart was relevant to plaintiff's comparative negligence:

Although plaintiff admitted that she saw the pulley bag before she tripped, so that it was an “open and obvious” condition, defendant failed to demonstrate that it fulfilled its broad obligation to maintain the store in a reasonably safe condition … . An issue of fact exists as to whether the placement of the pulley bag with its protruding metal stand, along with the other merchandise cluttering the store's aisles, was an inherently dangerous condition that presented a tripping hazard … . That plaintiff saw the bag before tripping does not require dismissal of the complaint, but is relevant to the issue of her comparative negligence … . Johnson-Glover v Fu Jun Hao Inc., 2016 NY Slip Op 02748, 1st Dept 4-12-16


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TRIAL COURT SHOULD NOT HAVE SET ASIDE VERDICT IN MALICIOUS PROSECUTION ACTION.

The First Department, in a full-fledged opinion by Justice Kapnick, reversing Supreme Court, reinstated plaintiff's malicious prosecution, 42 USC 1983, punitive damages and attorneys' fees claims. The claims had been dismissed pursuant to defendants' motion to set aside the $4 million jury verdict. Plaintiff had been injured during an arrest which took place just outside plaintiff's residence after he was approached by two police officers, ostensibly for his holding an open can of beer. Plaintiff was ultimately charged only with disorderly conduct which was dismissed at trial at the close of the People's case. The opinion includes an in-depth discussion of the elements of malicious prosecution, including the distinct “lack of probable cause to arrest” and “malice” elements. The court noted that the trial court improperly substituted its own factual judgments for the jury's. The court explained:

The actual malice element “does not require a plaintiff to prove that the defendant was motivated by spite or hatred, although it will of course be satisfied by such proof” … . Since “[a]ctual malice is seldom established by direct evidence of an ulterior motive” … , it “may be proven by circumstantial evidence” … , and depends “upon inferences to be reasonably drawn from the surrounding facts and circumstances” … . Actual malice may also be inferred from a total lack of probable cause … or from defendant's intentionally providing false information to law enforcement authorities … . It is important to note that the lack of probable cause and actual malice elements are independent, and “a jury may, but is not required to, infer the existence of actual malice from the fact that there was no probable cause to initiate the proceeding” … . As a result, it is advisable to separate the questions of probable cause and malice on a verdict sheet … . Here, however, while there was only one question, the trial court did charge the jury on both the elements of probable cause and malice, and instructed the jury that only if they found that “plaintiff [] prove[d] both that the defendants did not have probable cause and that they acted maliciously” (emphasis added) should they move on to consider damages, which they did.

Based on the foregoing, and contrary to the trial court's finding, the jury's verdict on malicious prosecution was improperly set aside as insufficient as a matter of law. It cannot be said that there was no valid line of reasoning that could possibly have led rational people to the conclusion reached by the jury on the basis of the evidence at trial. Moreover, the court impermissibly usurped the jury's role and made factual determinations. The court's statement that the plaintiff “refus[ed] to submit to the authority of the police” is a clear example of the court substituting its judgment for that of the jury. When the facts give rise to conflicting inferences, as they do here, it is for the jury, not the court, to resolve those conflicts. Cardoza v City of New York, 2016 NY Slip Op 02766, 1st Dept 4-12-16


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DESTRUCTION (SPOLIATION) OF EVIDENCE WARRANTED STRIKING THE PLEADINGS.

The First Department determined defendant's pleadings were properly struck because defendant destroyed emails relevant to plaintiff's defamation action:

Defendant undertook an affirmative course of action resulting in destruction of relevant emails, though she represented otherwise during sworn testimony. As the documents received from third-party recipients confirm, the files defendant destroyed are highly relevant and tend to substantiate plaintiffs' claims. Evidence of defendant's willful and prejudicial destruction of evidence warrants the sanction of striking her pleadings … . Where a party disposes of evidence without moving for a protective order, a negative inference may be drawn that the destruction was willful … . Willfulness may also be inferred from a party's repeated failure to comply with discovery directives … . It should also be noted that this Court has upheld the striking of pleadings where the destruction of critical evidence occurs through ordinary negligence … . Chan v Cheung, 2016 NY Slip Op 02731, 1st Dept 4-12-16


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