You are here: / First Department

Tag Archive for: First Department

Duty to Defend

The First Department determined that the insurer was obligated to defend the defendants even though subsequently it may be able to demonstrate the insured did not cause the injuries.  The duty to defend is determined by comparing the policy to the complaint.  If the pleaded claims are potentially within the scope of coverage, the insurer’s duty to defend is triggered:

An insurer may obtain a declaration absolving it of its duty to defend only when a comparison of the policy and the underlying complaint on its face shows that, as a matter of law, “there is no possible factual or legal basis on which the insurer might eventually be held to be obligated to indemnify the insured under any provision of the insurance policy” … . As this Court has observed, “[T]he primary obligation of an insurer is to provide its insured with a defense” …, an obligation that is incurred “if facts alleged in the complaint fall within the scope of coverage intended by the parties at the time the contract was made” … . “By contrast, the duty to indemnify requires a determination of liability” … .

Because the underlying complaints pleaded claims that were potentially within the scope of coverage, plaintiff is obligated to defend the underlying actions. Whether plaintiff might ultimately be able to establish that its insured did not cause the injuries alleged in the underlying actions involves questions of fact yet to be resolved; it is not an issue that can be determined as a matter of law by examination of the insurance contract. Thus, it does not afford a basis to relieve plaintiff of its duty to provide a defense… . Greewich Ins Co v City of New York, 2014 NY Slip Op 07933, 1st Dept 11-18-14

 

, ,

Infant’s Injury Not Apparent for Several Months—Application to File Late Notice of Claim Properly Granted

The First Department affirmed Supreme Court’s grant of an application to file a late notice of claim.  The injury did not become apparent until several months after the infant plaintiff was born, and all the other criteria for allowing a late notice of claim were met:

…[T]he mother’s assertion that she waited to file a notice of claim because she did not know until several months after the child was born that he was injured is a reasonable excuse for the delay in moving to file a late notice of claim … . Moreover, respondent’s experts have not disputed the assertion made by claimant’s experts that periventricular leukomalacia (PVL), the injury alleged here, does not generally manifest itself until the infant fails to meet his developmental milestones, which in this case was approximately six months after the injury was inflicted, and that a layperson, such as the child’s mother, would be unable to tell that he was injured … .

Claimant has demonstrated that respondent acquired actual knowledge of the facts surrounding the instant claim within 90 days or a reasonable time thereafter, because the expert affidavits of Dr. Richman and Dr. Singh establish that the records, on their face, evinced respondent’s failure to provide the mother with proper labor and delivery care … . * * *

Respondent will not be unduly prejudiced by being compelled to defend this case, because it had actual notice of the underlying facts of the infant plaintiff’s claim within a reasonable time after his birth, and the hospital has been in possession of the records since the alleged malpractice. Matter of Kellel B v New York City Health & Hosps Corp, 2014 NY Slip Op 07963, 1st Dept 11-18-14

 

,

Cause of Action Against Landlord for Nuisance, Based Upon a Noisy Tenant, Does Not Lie Where the Landlord Did Not Create the Nuisance and the Landlord Has Surrendered Control of the Premises to the Tenant

In affirming the denial of summary judgment to the landlord in an action alleging a tenant’s noise constituted a nuisance (because the papers submitted were inadequate), the First Department noted that a cause of action for nuisance does not lie against a landlord who did not create the nuisance and who has surrendered control of the premises to a tenant.  Clarke v 6485 & 6495 Broadway Apt Inc, 2014 NY Slip Op 07961, 1st Dept 11-18-14

 

Legal Opinions, Software, and a Manual for the Software Properly Withheld

The First Department determined the respondent NYS Division of Human Rights properly withheld certain materials requested pursuant to the Freedom of Information Law (FOIL).  Legal opinions were exempt as “intra-agency materials” and were also exempt because the person who was the subject of the documents did not consent to the release.  In addition, software which was requested was not “information” within the meaning of FOIL:

Respondent properly withheld the four legal opinions requested by petitioner pursuant to the “intra-agency materials” exemption (see Public Officers Law § 89[2][g]), since they are essentially “predecisional memoranda, prepared to assist the agency in its decision-making process and . . . are not final agency determinations or policy” … . Contrary to petitioner’s argument, the opinions do not fall under the exceptions to this exemption for “statistical or factual tabulations or data” (Public Officers Law § 89[2][g][i]) or “instructions to staff that affect the public” (Public Officers Law § 89[2][g][ii]…).

Moreover, three of the four opinions are “specifically exempted from disclosure by state . . . statute” (Public Officers Law § 87[2][a]…) pursuant to Executive Law § 297(8), which prohibits respondent from making public information contained in reports obtained by it with respect to a particular person without his or her consent. …

Respondent properly denied the request for its “Case Management System Legal Resources Notebook,” which does not constitute a record within the meaning of FOIL, since it is not “information” (Public Officers Law § 86[4]) but rather a software application providing the means of accessing information in its electronic file system. It also properly withheld the user’s manual for that application, since its disclosure “would jeopardize [respondent’s] capacity . . . to guarantee the security of its . . . electronic information systems” (Public Officers Law § 87[2][i]).  Matter of Miller v New York State Div of Human Rights, 2014 NY Slip Op 07742, 1st Dept 11-13-14

 

,

Dispute Within a Religious Organization Could Not Be Decided by Application of Neutral Law But Rather Would Require Looking Behind an Ecclesiastical Determination, An Inquiry Prohibited by the Establishment Clause

The First Department, in a full-fledged opinion by Justice Gische, over an extensive dissent, determined that the courts could not intervene in a dispute which had arisen within a Buddhist organization called the China Buddhist Association (CBA).  The court determined the dispute could not be decided by the application of neutral law, but rather would have required deciding whether petitioners had been properly excommunicated, an entirely religious inquiry:

The Establishment Clause of the First Amendment of the United States Constitution, which is binding on the states by the Fourteenth Amendment, guarantees religious bodies “independence from secular control or manipulation — in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine” … . Consequently, courts are forbidden from “interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs” … . Only when disputes can be resolved by neutral principles of law may the courts step in … . The issues before us, however, cannot be resolved through the application of “neutral principles of law” but entail an inquiry into the validity of petitioners’ excommunications. Because this is an entirely ecclesiastical matter, we are forbidden from such an inquiry … . * * *

It is impermissible for a court to look behind an ecclesiastical determination or act to examine the subjective reasons for which it was undertaken … . Matter of Ming Tung v China Buddhist Assn, 2014 NY Slip Op 07777, 1st Dept 11-13-14

 

,

Malicious Prosecution Requires Something More than Merely Reporting an Alleged Incident to Authorities/Uncorroborated, Incredible, Allegations by Plaintiff Did Not Raise a Question of Fact

The First Department, in a full-fledged opinion by Justice Richter, determined summary judgment in favor of the defendants was properly granted for malicious prosecution and defamation causes of action.  Plaintiff, Moorhouse, had been charged with attempted rape of a hotel worker, G.P., and was acquitted.  He then brought a civil suit alleging, among other causes of action, malicious prosecution and defamation.  The First Department explained that plaintiff’s uncorroborated, incredible version of events, contradicted by eyewitness testimony which corroborated the hotel worker’s allegations, and the acquittal itself, did not raise a question of fact:

In the malicious prosecution cause of action, Moorhouse contends that G.P. initiated the criminal proceeding against him without probable cause and with malice … . The Court of Appeals has imposed “stringent requirements” for bringing malicious prosecution claims … . The Court explained that this is necessary “to effectuate the strong public policy of open access to the courts for all parties without fear of reprisal in the form of a retaliatory lawsuit” … . To prevail on such a claim, a plaintiff has a “heavy burden” …, and must establish the following four elements: “(1) the initiation of a criminal proceeding by the defendant against the plaintiff, (2) termination of the proceeding in favor of the accused, (3) lack of probable cause, and (4) malice” … . A plaintiff’s failure to prove any one of these elements will defeat the entire claim … .

A civilian who simply provides information to law enforcement authorities, who are then free to exercise their own independent judgment as to whether an arrest should be made and criminal charges filed, will generally not be held liable for malicious prosecution … . To establish the element of initiation of a criminal proceeding, it typically must be shown that the defendant did something “more than merely report a crime to the police and cooperate in its prosecution” … . Instead “[t]he defendant must have affirmatively induced the officer to act, such [*5]as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal, to the point where the officer is not acting of his own volition” … . Moorhouse v Standard NY, 2014 NY Slip Op 07605, 1st Dept 11-6-14

 

Worker Struck by Falling Brick Entitled to Summary Judgment/Comparative Negligence Is Not a Defense to a Labor Law 240(1) Claim

The First Department determined that summary judgment pursuant to Labor Law 240(1) was properly granted to a worker struck by a falling brick.  The court noted that comparative negligence is not a defense to a Labor Law 240(1) action:

Plaintiff established his entitlement to judgment as a matter of law on the issue of liability on his Labor Law § 240(1) claim by submitting, among other things, his testimony that he was performing his assigned work of cleaning debris from the ground level, just outside the north side of the subject building under construction, when he was suddenly struck by a falling brick, in the absence of any overhead netting or other such protective devices … . Defendants’ witnesses further established their liability by confirming that the brick fell out of the hands of a masonry worker several stories above plaintiff, and that safety netting which had been installed on other sides of the building was absent from the north exterior. The lack of overhead protective devices was a proximate cause of plaintiff’s injuries under any of the conflicting accounts …, and plaintiff’s comparative negligence is not a defense to a Labor Law § 240(1) claim… . Hill v Acies Group LLC, 2014 NY Slip Op 07601, 2nd Dept 11-6-14

 

,

Plaintiff-Passenger’s Injury In an Illegal Drag-Race Not Actionable—Under the Facts, Public Policy Precluded Plaintiff from Bringing Suit

The First Department, over a dissent, determined that a complaint brought by a passenger, who was a willing participate in illegal drag-racing, against the drivers and other passengers involved, was properly dismissed.  Plaintiff was injured when the car he was in crashed during the race:

“[A]s a matter of public policy, . . . where a plaintiff has engaged in unlawful conduct, the courts will not entertain suit if the plaintiff’s conduct constitutes a serious violation of the law and the injuries for which the plaintiff seeks recovery are the direct result of that violation” … . Plaintiff urges that this rule of law is inapplicable because he was merely a passenger and also because some of the defendants indicated during disclosure that they did not consider themselves to be racing. As for the latter argument, plaintiff controls the theory of his case and he has not wavered from his contention that a high-speed drag race was in progress — an allegation made in his complaint, bills of particulars, proposed amended complaint, affidavits submitted in the underlying motions and about which he testified in detail at his deposition. Supreme Court did not err in accepting plaintiff’s admitted conduct in such regard … .

The fact that a plaintiff’s injuries occurred in the course of unlawful conduct does not mandate dismissal …, but instead the violation of law must be “sufficiently serious” to support such an extreme result, and this determination necessarily implicates “due consideration of all the relevant facts and circumstances” … . Here, plaintiff testified that he knew Eastman had been drinking beer all day, plaintiff participated in banter regarding racing and he vouched for Eastman’s truck as the fastest. Plaintiff stated that he entered the truck knowing a race was about to start, the truck and the vehicle driven by Losaw revved engines at a starting point on the road with yelling back and forth, and plaintiff never suggested that Eastman not proceed to race. In fact, once the race started, he even made comments urging Eastman to go faster so as not to be defeated in the race. Shortly thereafter, Eastman lost control of the truck. Estimated speeds during the race exceeded 100 miles per hour. Plaintiff was very familiar with the road, acknowledged racing on it previously and described it as “pretty curvy,” “surface isn’t even,” “potholes, bumps” and “not much shoulder.”

Racing side by side at over 100 miles per hour in the dark on a two-lane rural road under the circumstances of this case constitutes the type of grossly reckless conduct that created a grave risk to the public … . Hathaway v Eastman, 2014 NY Slip Op 07533, 3rd Dept 11-6-14

 

,

Guilty Plea Based on a Sentence Promise that Neither the Court Nor the Parties Realized Was Illegal Requires Vacation of the Conviction in the Absence of Preservation—Notwithstanding the Fact the Sentence Was Ultimately Rendered Legal by an Enhancement Imposed Because the Defendant Violated the Terms of His Release Pending Sentencing

The First Department, in a full-fledged opinion by Justice Renwick, over a two-justice dissent, determined that a guilty plea cannot stand where neither the court nor the parties was aware that the agreed upon sentence was illegal, even though the sentence was rendered “legal” by an enhancement.  The sentence promise was three years, but, given the defendant’s prior record, the minimum sentence he could legally receive was six years. Because the defendant was found to have violated the terms of his release pending sentencing, he was ultimately sentenced to six years as an enhanced sentence. The court summarized the facts and its ruling as follows:

The principal question presented here is whether a judgment of conviction, entered upon a guilty plea to a particular crime, may stand when the record discloses that neither the court nor the parties realized that the agreed upon sentence, to be imposed if defendant complied with the conditions of the plea, was illegal. Although defendant violated the conditions of his plea, and the enhanced sentence was legal, defendant is entitled to a plea vacatur for two fundamental reasons. First, defendant’s constitutional claim that his plea violated due process because it was induced by an illegal promise need not be preserved. Second, to accept a guilty plea induced by an illegal promise affects the fairness, integrity and public reputation of judicial proceedings as the defendant could not have had a full understanding of what the plea connotes and its consequences … or “exercised a voluntary and intelligent choice among the alternative courses of action open to the defendant” … . People v Williams, 2014 NY Slip Op 07458, 1st Dept 10-30-14

 

, , ,

City Was “United in Interest” with Non-Profit Corporation Which Maintained Central Park Pursuant to a Contract with the City—Therefore Plaintiff, Who Was Allegedly Injured by a Truck Owned by the Non-Profit Corporation, Could Amend His Complaint to Include the Non-Profit Corporation After the Statute of Limitations Had Run—However the Extent to Which the City Was “United in Interest” Was Dictated by the Terms of the Contract

The First Department determined that the Conservancy, a non-profit corporation which maintains Central Park under a contract with the City of New York, was “united in interest” with the City.  Therefore, plaintiff, who allegedly had been injured by a maintenance truck owned by the Conservancy, could amend his complaint to include the Conservancy, even though the statute of limitations had run.  The ‘unity of interest” was defined by the terms of the contract.  Because the contract did not call for the City to indemnify the Conservancy for gross negligence, the complaint against the Conservancy could not include the gross negligence claim:

… [P]laintiff relied on the 2006 Central Park Agreement, a contract between the City and the Conservancy, a nonprofit organization, in which they acknowledged that they had formed an effective “public/private partnership.” Under the Agreement, the Conservancy is required to provide specified maintenance services in Central Park to the “reasonable satisfaction” of the City, and the City is broadly required to indemnify the Conservancy “from and against any and all liabilities . . . arising from all services performed and activities conducted by [the Conservancy] pursuant to this agreement in Central Park.” The City’s indemnification obligation, among other things, expressly excludes claims arising from gross negligence or intentional acts of the Conservancy or its agents or volunteers. As a result of the Agreement, the Conservancy acts, in effect, as an independent contractor fulfilling the City’s nondelegable obligation to maintain the City parks in reasonably safe condition … .

The City is vicariously liable for the Conservancy’s negligence in the course of providing maintenance in Central Park by virtue of the contractual indemnification provision, and the parties are thus united in interest … . Further, since the City has a nondelegable duty to maintain Central Park, it is vicariously liable for negligence committed by the contractor in the course of fulfilling that duty … . However, the City is correct that its interests are not united with those of the Conservancy with respect to the proposed gross negligence claim, and leave to assert that claim against the Conservancy is therefore denied. Brunero v City of New York Dept of Parks & Recreation, 2014 NY Slip Op 07444, 1st Dept 10-30-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy