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A RETROCESSIONAL INSURER WHICH PAID OUT A SETTLEMENT ON BEHALF OF THE INSURED IN THE UNDERLYING LABOR LAW 240(1) LADDER-FALL CASE, IS ENTITLED TO BRING A LEGAL MALPRACTICE ACTION AGAINST THE LAWYERS FOR THE INSURED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, determined a retrocessional insurer (the reinsurer of a reinsurer) can maintain a legal malpractice claim against lawyers representing the insured in an underlying Labor Law 240(1) (ladder-fall) personal injury action. Plaintiff retrocessional insurer, having paid out on a settlement on behalf of the insured has standing to assert a claim for legal malpractice under a theory of equitable subrogation. (The opinion is too complex to fairly summarize here):

In New York, “[w]e recognize at once the fairness of the proposition that an insurer who has been compelled by his contract to pay to or in behalf of the insured claims for damages ought to be reimbursed by the party whose fault has caused such damages and the principle of subrogation ought to be liberally applied for the protection of those who are its natural beneficiaries” … . “As an equitable doctrine in the context of insurance, an insurance carrier, upon payment of a loss becomes subrogated to the rights and remedies of its assured to proceed against a party primarily liable without the necessity of any formal assignment or stipulation” … . Under the same equitable principles, “an insurer which has been compelled under its policy to pay a loss, ought in fairness to be reimbursed by the party which caused the loss” … . * * *

Where a reinsurer, or retrocessionaire, has paid a claim on behalf of an insured, equitable principles demand that the reinsurer be entitled to equitable subrogation on behalf of the insured. Having pleaded that it was contractually obligated to, and did, pay the majority of the [property owner/general contractor’s] settlement amount in the underlying personal injury action, and that it brings the instant action for legal malpractice as subrogee [of the property owner/general contractor], plaintiff can proceed with this action under the theory of equitable subrogation. Century Prop. & Cas. Ins. Corp. v McManus & Richter, 2024 NY Slip Op 00799, First Dept 2-15-24

Practice Point: Here the retrocessional insurer paid out a settlement on behalf of the insured in an underlying personal injury action. The retrocessional insurer was entitled to bring a legal malpractice action against the lawyers for the insured.

 

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FOR PURPOSES OF THE RELATION-BACK DOCTRINE, A LANDLORD AND A TENANT ARE NOT “UNITED IN INTEREST” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the landlord-tenant relationship between the insured and the defendant building owner, Marion, did not constitute a “unity of interest” such that a negligence action against Marion could be commenced after the statute of limitations had run:

There are three conditions that must be satisfied for a claim asserted against a subsequent defendant such as Marion to relate back to claims asserted against another defendant: (1) both claims must arise out of the same conduct, occurrence, or transaction; (2) the new party must be “united in interest” with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the lawsuit such that he will not be prejudiced in maintaining his defense on the merits; and (3) the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him as well … . * * *

… [A] landlord-tenant relationship, standing alone, does not give rise to vicarious liability or otherwise create unity of interest, which, as the Court of Appeals has recently reaffirmed, requires a situation in which the parties “stand or fall together and the judgment against one will similarly affect the other” … . Kingstone Ins. Co. v Marion Pharm. Inc., 2024 NY Slip Op 00805, First Dept 2-15-24

Practice Point: A landlord and a tenant are not united in interest for purposes of the relation-back doctrine and will not support adding a landlord to a complaint after the statute of limitations has run.

 

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THE ATTEMPT TO CORRECT A SENTENCING MISTAKE IN THE DEFENDANT’S ABSENCE VIOLATED DEFENDANT’S CONSTITUTIONAL AND STATUTORY RIGHT TO BE PRESENT (FIRST DEPT). ​

The First Department, vacating defendant’s sentence, determined the attempt to correct a mistake in the term of postrelease supervision in defendant’s absence violated defendant’s constitutional and statutory rights:

As the People concede, defendant’s constitutional and statutory rights to be present at sentencing were violated when the court resentenced defendant in his absence to correct a mistake in the term of postrelease supervision imposed (see CPL 380.40[1] …). Accordingly, the sentence is vacated and the matter is remanded for resentencing with defendant present. On remand, the court shall also address the discrepancy between the five-year term of postrelease supervision imposed on the weapon possession count at the original sentencing and the three-year term of postrelease supervision count reflected in the amended sentence and commitment sheet … . People v McCallum, 2024 NY Slip Op 00816, First Dept 2-15-24

Practice Point: Here the attempt to correct a mistake in the period of postrelease supervision in the defendant’s absence required vacation of the sentence.

 

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THE REPEAL OF THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) WAS NOT RETROACTIVE; THEREFORE DEFENDANT’S NURSING HOME WAS IMMUNE FROM SUIT STEMMING FROM PLAINTIFF’S DECEDENT’S DEATH FROM COVID-19 (FIRST DEPT).

The First Department determined the repeal of the Emergency or Disaster Treatment Protection Act (EDTPA) in April 2021 was not retroactive. Therefore defendant’s nursing home was immune from suit stemming from plaintiff’s decedent’s death from COVID-19. Although the Act does not confer immunity from gross negligence, gross negligence was not demonstrated because the Department of Health required nursing homes to admit COVID-positive patients:

As to the application of the EDTPA, defendant was entitled to immunity under that statute. The documents submitted with defendant’s motion to dismiss, including several pandemic-related policies, State Department of Health directives, and more than 1600 of pages of the decedent’s medical records, demonstrate that defendant was providing health care services to the decedent under the COVID-19 emergency orders when he was infected and, before that, “in accordance with applicable law”; the care provided was “impacted by” defendant’s “decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state’s directives”; and the decedent was provided care “in good faith” … . Hasan v Terrace Acquisitions II, LLC, 2024 NY Slip Op 00739, First Dept 2-13-24

Practice Point: This decision includes an extensive discussion of when a statute can be deemed to apply retroactively.

 

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THE SEARCH OF A CAR AFTER DEFENDANT HAS BEEN REMOVED FROM THE CAR CANNOT BE CONSIDERED A SEARCH INCIDENT TO ARREST; SUPPRESSION GRANTED AND INDICTMENT DISMISSED (FIRST DEPT).

The First Department, reversing defendant’s conviction and dismissing the indictment, determined the search of defendant’s car was not a valid search incident to arrest because defendant and the driver had already been removed from the car. The People elected not to rely on the appeal waiver because of the erroneous suppression ruling:

The court improperly denied defendant’s motion to suppress the PCP recovered from the vehicle. As the People concede, the search of the vehicle could not be justified as a search incident to arrest because, at the time of the search, defendant and the driver had already been removed from the car and were in handcuffs. Anything inside of the car was no longer in defendant’s grabbable area or immediate control, and the People failed to demonstrate the existence of exigent circumstances to justify the search … . People v Ortiz, 2024 NY Slip Op 00745, First Dept 2-13-24

Practice Point: Once a defendant has been removed from a car, a search of the car cannot be a search incident to arrest because the interior of the car is no longer in defendant’s grabbable area or immediate control.

 

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THE CONSOLIDATED TRIAL OF TWO SEPARATE CRIMINAL TRANSACTIONS, COUPLED WITH THE ABSENCE OF LIMITING JURY INSTRUCTIONS, CONSTITUTED REVERSIBLE ERROR (FIRST DEPT). ​

The First Department, in a full-fledged comprehensive opinion by Justice Rodriguez, over a two-justice comprehensive concurring opinion, determined that the consolidated trial of two separate criminal transactions, without appropriate limiting jury instructions, was reversible error:

The first indictment charged defendant with, among other counts, attempted murder. In relation to the first indictment, no gun was recovered, the alleged victim was not injured, and the evidence showed that there was at least some degree of animus between defendant and the alleged victim. The defense theory was thus that the discharged gun was in fact the victim’s. The second indictment, concerning an incident nearly six months later at a different location, charged defendant with possession of a firearm that was recovered on the person of his companion. The principal evidence supporting the second indictment was a set of suggestive jail phone call recordings.

Consolidated trial of indictments like the two at issue here is not necessarily error. However, defendant suffered impermissible prejudice as a result of (1) the nature and quantum of the evidence presented and (2) the specific respective theories of the prosecution and the defense. Supreme Court thus abused its discretion and committed error in trying the indictments together.

Although prejudice may in general be adequately ameliorated by appropriate limiting instructions, the jury received no such instruction here. People v Davis, 2024 NY Slip Op 00746, First Dept 2-13-24

Practice Point: This comprehensive majority opinion and and the comprehensive concurring opinion cannot be fairly summarized here. Consult this opinion for the law associated with consolidation of indictments for trial.

 

PLAINTIFF FELL THROUGH AN OPENING IN THE FLOOR WHEN THE PLYWOOD COVERING THE OPENING SHIFTED; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240(1) cause of action should have been granted. Plaintiff fell through an opening in the floor when the plywood covering the opening shifted:

While [defendants] argue that plaintiff was the sole proximate cause of his accident, that defense is inapplicable here, since “if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it” … . Their argument that there was no violation in that the opening, which had no railings or other affixed barricades, was adequately protected by the sheet of plywood, is unavailing … . Similarly, their claim that an unattributed statement in plaintiff’s … accident report that he was lifting wood at the time of the accident implies that he intentionally removed the plywood himself does not create a question of fact … . The argument that plaintiff should not have been working in that area is contradicted by the scope of his employer’s contract, photographs, and his coworker’s testimony. In any event, it is irrelevant and would constitute, at most, comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Devlin v AECOM, 2024 NY Slip Op 00673, First Dept 2-8-24

Practice Point: A fall through an opening in the floor which was inadequately protected by a sheet of plywood warranted summary judgment on plaintiff’s Labor Law 240(1) cause of action.

 

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THE PEOPLE DID NOT DEMONSTRATE AN INVENTORY LIST WAS CREATED FOR THE SEARCH OF DEFENDANT’S CAR; THEREFORE THE PEOPLE DID NOT PROVE THE SEARCH WAS A VALID “INVENTORY SEARCH” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the People did not prove the search of a car which turned up a firearm and marijuana was a valid “inventory search:”

The People failed to carry their initial burden of establishing a valid inventory search of defendant’s vehicle. Court of Appeals precedent “requires that a police officer prepare a meaningful inventory of the contents of an accused’s car” … . Although the People failed to establish that the officers prepared the prescribed inventory search form, such failure is considered a mere “technical defect” and “is not fatal to the establishment of a valid search as long as (1) the search, in accordance with the ‘standardized procedure,’ is designed to produce an inventory and (2) the search results are fully recorded in a usable format” … . Here, the People failed on this latter point, since there was no evidence offered to show that the officers created the “hallmark of an inventory search: a meaningful inventory list” … . * * *

Ultimately, no form, list, or usable record was produced before the hearing court, and there is otherwise no basis on which to conclude that an inventory list or record of the search results was ever created, either during the search or after its completion. People v Cabrera, 2024 NY Slip Op 00685, First Dept 2-8-24

Practice Point: In order to prove items were seized from a car pursuant to a valid “inventory search,” some sort of inventory list must have been created during the search.

 

QUESTIONS OF FACT ABOUT WHETHER REPLACING A WATER HEATER CONSTITUTED A REPAIR AS OPPOSED TO MAINTENANCE AND WHETHER AN ELEVATION-RELATED HAZARD WAS INVOLVED IN MOVING THE WATER HEATER WITH A HAND TRUCK PRECLUDED DISMISSAL OF THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined replacement of a 700 pound water heater which involved moving it with a hand truck raised questions of fact about the applicability of Labor Law 240 (1):

Plaintiff’s evidence * * * raised triable issues whether the day-long work that involved multiple workers to replace a 6-foot tall, 30-inch diameter water heater, weighing, by some estimates approximately 700 pounds, constituted a repair within the meaning of Labor Law § 240(1), as distinguished from routine maintenance … . Defendants did not offer proof, apart from conclusory statements, as to the cause of the water heater’s breakdown other than that the mechanism was leaking and no longer functioning. Defendants offered no specific proof that the water heater’s failure was due to normal wear and tear of particular parts or of its system itself. Triable issues were also raised as to whether an elevation differential existed such that the weight of the water heater, as it was strapped to the hand truck, created a hazardous gravitational force which devices enumerated in Labor Law § 240(1) were meant to protect against … . Rodriguez v Fawn E. Fourth St. LLC, 2024 NY Slip Op 00690, First Dept 2-8-24

Practice Point: There were questions of fact whether replacing a water heater was a “repair” and whether moving the 700-pound water heater on a hand truck was an “elevation-related” hazard within the meaning of Labor Law 240(1).

 

FAILURE TO FILE AFFIDAVITS OF SERVICE WITH THE CLERK OF THE COURT WITHIN 20 DAYS IS NOT A JURISDICTIONAL DEFECT; SERVICE IS DEEMED COMPLETE 10 DAYS AFTER FILING A MOTION FOR A DEFAULT JUDGMENT WITH THE AFFIDAVITS OF SERVICE (FIRST DEPT). ​

The First Department noted that the “nail and mail” service of process was valid and the failure to file affidavits of service within 20 days was not a jurisdictional defect:

… [E]ach affidavit of service states that the process servers made three separate attempts at serving the individual defendants at various dates and times before resorting to “nail and mail” service (CPLR 308(4) …). Plaintiffs’ failure to file affidavits of service with the clerk of the court within 20 days of service is a “mere irregularity” rather than a jurisdictional defect and does not render the service of process a “nullity” … . In any event, service was deemed complete 10 days after plaintiffs filed their initial motion for default judgment with the affidavits of service … . General Ins. v Leandre, 2024 NY Slip Op 00598, First Dept 2-6-24

Practice Point: The “nail and mail” service was valid despite the failure to fine affidavits of service with the clerk of the court within 20 days of service.

Practice Point: Here service was deemed complete ten days after the motion for a default judgment was filed with the affidavits of service.

 

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