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Attorney’s Failure to Investigate Client’s Premises Liability Claim Before Encouraging Settlement Raised Issue of Fact About Malpractice

In this legal malpractice action, the trial court ruled plaintiff had raised issues of fact concerning whether his attorney failed to adequately investigate the plaintiff’s premises liability claim before encouraging the plaintiff to settle.  In affirming the trial court, the First Department noted that the settlement agreement did not bar the legal malpractice action:

For a claim for legal malpractice to be successful, “a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff and that the plaintiff would have succeeded on the merits of the underlying action but for’ the attorney’s negligence” …. A client is not barred from a legal malpractice action where there is a signed “settlement of the underlying action, if it is alleged that the settlement of the action was effectively compelled by the mistakes of counsel” ….   *  *  *

In this specific case, given plaintiff’s lack of sophistication and his limited education, defendant’s statement that he never conducted any investigation, except for speaking to plaintiff for a very limited time, raises a question of fact as to whether defendant adequately informed himself about the facts of the case before he conveyed the settlement offer.  Angeles v Aronsky, 2013 NY Slip Op 02454, 8925, 100091/09, 1st Dept, 4-11-13

 

Policy Taken Out to Cover Original One Story Building Did Not Cover Accident on Additional Floors Under Construction

The First Department, in a full-fledged opinion by Justice Saxe, determined that an insurance police which covered the original one-story building did not cover the additional floors subsequently under construction.  In a full-fledged opinion by Justice Saxe (with a dissent), the First Department wrote:

“Coverage cannot be afforded on liability for which insurance was not purchased” …. While the obligation to defend is broader than the duty to indemnify, it “does not extend to claims not covered by the policy” …. “[I]f the allegations interposed in the underlying complaint allow for no interpretation which brings them within the policy provisions, then no duty to defend exists” … .   If a policy insures a portion of a building, it does not cover an injury occurring in another portion of the building… . Seneca Ins Co v Cimran Co, Inc, 2013 NY Slip Op 02360, 9226, 1st Dept, 4-9-13

 

Plaintiff Was Deemed Third Party Beneficiary of Contract Between Next-Door Neighbor and Chimney Repair Company— Smoke Was Entering Plaintiff’s Home

Smoke from defendant Moore’s fireplace was entering a neighbor’s (Trager’s) home.  Trager sued Moore and the defendant company (B & P) hired by Moore to fix their fireplace.  The motion court dismissed the cause of action against B & P.  The First Department reinstated the cause of action against B & P finding that Trager may have been a third-party beneficiary of the contract between Moore and B & P:

The complaint should not have been dismissed as against B & P because a question of fact exists as to whether B & P owed Linda Trager … a duty as a third-party beneficiary to B & P’s contract with the Moore defendants … . Castlepoint Ins Co v Moore, 2013 NY Slip Op 02352, 99747, 110915/09, 1st Dept, 4-9-13

 

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Question of Fact Raised by Competing Expert Affidavits Re: Proximate Cause

In reversing the trial court’s dismissal of a medical malpractice complaint, the First Department wrote:

In this medical malpractice appeal, defendants do not dispute that they departed from the accepted standard of care by incorrectly informing plaintiff that her April 9, 2007 PET scan was negative for recurrent cancer and not correcting that misinformation until November 2007. Defendants argue that the six month delay in notification did not cause plaintiff any injury. Defendants met their initial burden of establishing their entitlement to judgment as a matter of law … . However, the motion court erred in finding that plaintiff failed to raise an issue of fact requiring the denial of defendants’ motion and a trial. The issue of whether a doctor’s negligence is more “likely than not a proximate cause of [a plaintiff’s] injury” is usually for the jury to decide… . There is a substantial dissent by Justice DeGrasse.  Polanco v Reed, et al, 2013 NY Slip Op 02317, 303169/08, 8662A, 1st Dept 4-4-13

 

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Usual Criteria for Piercing the Corporate Veil Applied in Fraudulent Conveyance Action

The First Department determined the “pierce the corporate veil” causes of action should be dismissed, applying the usual “pierce the corporate veil” criteria in a “fraudulent conveyance” case:

“In order for a plaintiff to state a viable claim against a shareholder of a corporation in his or her individual capacity for actions purportedly taken on behalf of the corporation, plaintiff must allege facts that, if proved, indicate that the shareholder exercised complete domination and control over the corporation and abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice” … . “Factors to be considered in determining whether the owner has abused the privilege of doing business in the corporate form include whether there was a failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, and use of corporate funds for personal use … . In opposition to the [defendants’] motion for summary judgment, plaintiff failed to proffer any evidence of the above factors. Contrary to plaintiff’s claim, the factors mentioned [above] remain relevant even in a fraudulent conveyance case … .  D’Mel & Associates v Athco, Inc, et al, 9713, 602486/09, 1st Dept 4-4-13

 

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DeBour Criteria Met in Street Encounter Leading to Arrest; Statements Tainted by Miranda Violations Did Not Preclude Admission of Statement Made Seven Hours Later

In a full-fledged opinion by Justice Renwick, the First Department upheld the denial of defendant’s suppression motions.  After hearing gun shots police officers approached the defendant. After defendant answered a couple of questions he “began to place his hand in his back pocket.”  At that point, the officer grabbed defendant’s arm and told defendant he wanted to frisk the defendant before allowing him to reach in his pockets.  As the officer began to frisk the defendant, the defendant ran and was brought the ground.  A firearm, still warm, was taken from the defendant’s back pocket.   Written statements subsequently given by the defendant were suppressed by the trial court because of a Miranda violation.  A videotaped statement, made seven hours after the tainted written statements, was deemed admissible:

Prior to pleading guilty, defendant moved to suppress a gun, recovered from his pocket, and videotaped statements he made to the prosecution as fruits of an unlawful seizure. He also moved to suppress the statements as obtained in violation of his Miranda rights. We conclude that the facts disclosed in the record were such as to warrant a person of reasonable caution to believe that defendant was reaching for a weapon when the arresting officer grabbed his arm. We also find that defendant’s videotaped statements were not suppressible, notwithstanding the suppression of prior written statements made more than seven hours earlier to police officers, because the videotaped statements were attenuated by a “definite, pronounced break in the interrogation” … .  People v Davis, 2012 NY Slip Op 02337, 6129, 9270, 1st Dept 4-4-13

 

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Hearsay About Cause of Fall Included in Hospital Report Should Not Have Been Presented to the Jury

In reversing a jury verdict in favor of the defendant, the First Department held that a hearsay statement about the cause of the plaintiff’s fall, contained in a hospital report, should not have been presented to the jury:

Generally, admissions not germane to the treatment or diagnosis of a plaintiff’s injuries are not admissible under the business records exception to the hearsay rule … . A hearsay entry in a hospital record as to the cause of an injury may be admissible at trial even if not germane to diagnosis, if the entry is inconsistent with a position taken at trial. However, there must be evidence that connects the party to the entry … .

…[P]laintiff testified that she slipped on a metal bracket protruding from a subway step. The hospital record indicating that she slipped on wet ground should not have been presented to the jury since there was no proper foundation for its admission, inasmuch as it was unclear whether plaintiff was the source of that information … . Indeed, plaintiff testified that she did not tell the orthopedic surgeon that she slipped on a wet surface. The admission of the hospital record thus was not harmless error since it went to the crux of plaintiff’s allegations. [Defendant’s] primary defense was that plaintiff slipped on wet ground, and not from its negligence … .  Grant v New York City Tr Auth, 3013 NY Slip Op 02318, 9211, 305841/08, 1st Dept 4-4-13

SLIP AND FALL

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Criteria for Valid Waiver of Appeal Explained

In finding the defendant did not make a valid waiver of his right to appeal because the colloquy was inadequate, in spite of the defendant’s signing a written waiver, the First Department wrote:

We note that litigation over the validity of appeal waivers, which arises regularly from many courts, can best be avoided if trial judges separately llocate defendants on the waiver of the right to appeal … . We again remind the courts that the better practice is to secure a written waiver, along with a thorough colloquy to ensure the defendant’s understanding of its contents … . It would be best if the court made clear that this is a separate and important right being waived, and that by signing the waiver, the plea and sentence are final, and the defendant agrees to accept the sentence imposed. The court cannot rely solely on defense counsel to explain the significance of the written waiver. People v Oquendo, 2013 NY Slip Op 02320, 9617, 1090/09, 1st Dept 4-4-13

 

Absence of “Altering” and Readily Observable Risk Precluded Suit

The First Department determined plaintiff’s fall from a metal roof did not meet the criteria for a Labor Law 240(1) because attaching a temorary sign was not “altering” for purposes of the statute.  In addition the First Department determined the Labor Law 200 and common-law negligence actions should be dismissed because the risks inherent in walking on a pitched metal roof were readily observable.  Bodtman v Living Manor Love, Inc, et al, 9703, 113921/08, 1st Dept 4-2-13

 

Response to Flooding Caused by Storm Not “Routine Maintenance”

The First Department determined that summary judgment should not have been granted in favor of the defendant in a Labor Law 240 (1) action.  Plaintiff was called to address flooding caused by severe weather and fell into an open manhole.  The motion court granted the defendant’s motion for summary judgment finding that plaintiff was engaged in routine maintenance.  The First Department found that a manhole is a “structure” within the meaning of the statute and that there was a question of fact about whether plaintiff was engaged in “repair” or “routine maintenance:”

Whether a particular activity constitutes a “repair” or routine maintenance must be decided on a case-by-case basis, depending on the context of the work … . A factor to be taken into consideration is whether the work in question was occasioned by an isolated event as opposed to a recurring condition. * * * The record here demonstrates that the work performed by plaintiff at the time of his injury was far from routine.  Dos Santos v Consolidated Edison of NY, Inc, 2013 NY Slip Op 02140, 8914, 105861/08, 1st Dept 3-28-13

 

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