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PASSING REFERENCES TO DEFENDANTS’ INSURANCE COVERAGE IN THE TRAFFIC ACCIDENT CASE DID NOT WARRANT SETTING ASIDE PLAINTIFF’S VERDICT (FIRST DEPT).

The Frist Department, reversing Supreme Court, determined the passing references to defendants’ insurance coverage in this traffic accident case did not warrant setting aside plaintiff’s verdict:

Plaintiff sustained injuries … , when a livery cab in which he was a passenger collided with an SUV driven by defendant Williams. During direct examination by plaintiff’s counsel and cross-examination by Williams’s counsel, no objection was raised when Williams testified that she spoke to her “insurance company” immediately after the accident. On cross-examination, when Williams stated that she “might have asked [codefendant Agyemang] for his insurance information,” Agyemang’s counsel moved to strike. The court did not respond, and counsel made no further objection. On redirect examination, when plaintiff’s counsel asked Williams what she had done with videos of the accident, Williams replied, “I thought I sent everything to Geico.”  …

Evidence that a defendant carries liability insurance is generally inadmissible due to its potential for prejudice, as a jury’s awareness of insurance coverage might make it easier for it to render an adverse verdict against the defendant … . A passing reference to insurance, however, does not necessarily warrant reversal … . Two of the insurance references at issue were elicited by defense counsel, from his own client, and counsel lodged no objection to the reference elicited by plaintiff’s counsel. The record indicates no intention on plaintiff’s part to prompt such information … .Gbadehan v Williams, 2022 NY Slip Op 04703, First Dept 7-26-22

Practice Point: Passing references to defendants’ insurance coverage in this traffic accident case did not warrant setting aside plaintiffs’ verdict.

 

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RENOVATION WORK ON DEFENDANTS’ TOWNHOUSE RENDERED PLAINTIFFS’ TOWNHOUSE, WHICH WAS NEXT DOOR, UNINHABITABLE; A LICENSE AGREEMENT WHICH GRANTED DEFENDANTS ACCESS TO PLAINTIFFS’ TOWNHOUSE INCLUDED A LIQUIDATED DAMAGES PROVISION WHICH WAS VALID AND ENFORCEABLE; PLAINTIFFS’ ACTION SOUGHT SOME EQUITABLE RELIEF BUT PRIMARILY SOUGHT MONEY DAMAGES; THEREFORE PLANTIFFS’ DEMAND FOR A JURY TRIAL SHOULD NOT HAVE BEEN STRUCK (FIRST DEPT).

The First Department determined, among many other issues not summarized here, the liquidated damages provision in the license agreement was enforceable and plaintiffs’ demand for a jury trial should not have been struck. Defendants purchased an historic townhouse next to plaintiffs’ townhouse. In the course of the defendants’ major renovations, plaintiffs’ townhouse was damaged. High levels of lead dust infiltrated plaintiffs’ townhouse forcing plaintiffs to move out. They never returned. The plaintiffs and defendants entered a license agreement giving defendants access to plaintiffs’ townhouse for 18 months. The liquidated damages provision entitled plaintiffs to $1000 a day for every day a temporary certificate of occupancy (TCO) was not obtained after the expiration of the license. The TCO was not obtained for 318 days entitling plaintiffs to $318,000. Although some equitable relief was requested, the suit primarily sought money damages. Therefore plaintiffs’ demand for a jury trial should not have been struck:

“Liquidated damages constitute the compensation which, the parties have agreed, should be paid in order to satisfy any loss or injury flowing from a breach of their contract” … . These provisions “have value in those situations where it would be difficult, if not actually impossible, to calculate the amount of actual damage” … . Liquidated damages will be sustained if, at the time of the contract, “the amount liquidated bears a reasonable proportion to the probable loss and the amount of actual loss is incapable or difficult of precise estimation” … . * * *

The court erred in granting [defendants’] motion to strike plaintiffs’ jury demand. The equitable relief sought by plaintiffs was incidental to their demand for money damages … ; to the extent plaintiffs seek to compel [defendants] to perform certain remediation work, monetary damages will afford full and complete relief … . Further, the claim for “abatement of and damages for a nuisance” is triable by a jury (CPLR 4101[2]). Seymour v Hovnanian, 2022 NY Slip Op 04705, First Dept 7-26-22

Practice Point: This decision includes a good discussion of how the validity of a liquidated-damages provision should be analyzed. The court noted that, although plaintiffs’ action sought some equitable relief, it primarily sought money damages. Therefore plaintiffs’ demand for a jury trial should not have been struck.

 

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ACTIONS PURSUANT TO NEW YORK CITY’S “FREELANCE ISN’T FREE ACT” (FIFA) WHICH ALLEGED DEFENDANTS FAILED TO PAY PLAINTIFFS-FREELANCERS SURVIVED MOTIONS TO DISMISS (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Moulton, in matters of first impression, interpreted the Freelance Isn’t Free Act (FIFA) in the context of motions to dismiss. The opinion is detailed and fact-specific and cannot be fairly summarized here. The plaintiffs alleged they were hired by defendants as freelancers and defendants’ failure pay was the basis of the lawsuits pursuant to FIFA. Most of the actions survived the motions to dismiss:

Enacted November 16, 2016 and effective May 15, 2017, FIFA is the first act of its kind in this country to provide legal protections for freelance workers against nonpayment for work performed … . FIFA defines a “freelance worker” as “any natural person or any organization composed of no more than one natural person, whether or not incorporated or employing a trade name, that is hired or retained as an independent contractor by a hiring party to provide services in exchange for compensation” … . A central issue in this case is whether plaintiffs fit within this definition. Chen v Romona Keveza Collection LLC, 2022 NY Slip Op 04702, First Dept 7-26-22

Practice Point: New York City enacted the “Freelance Isn’t Free Act” (FIFA) in 2017–the first law in the nation to specifically address the failure to pay freelancers.

 

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PLAINTIFF DID NOT PRESENT EXPERT OPINION TO SUPPORT THE ALLEGATION HE INHALED SUFFICIENT AMOUNTS OF ASBESTOS TO HAVE CAUSED HIS CANCER; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff in this asbestos-exposure case did not raise a question of fact about whether his exposure to asbestos was sufficient to have caused his cancer. Plaintiff alleged he was exposed to asbestos when he installed defendant ABI’s vinyl floor tiles. Defendant presented evidence from simulation studies and plaintiff offered no expert evidence in opposition:

In Nemeth v Brenntag N. Am. (___ NY3d ___, 2022 NY Slip Op 02769 [2022]), the Court of Appeals, while recognizing its conclusion in Parker v Mobil Oil Corp. (7 NY3d 434 [2006]) that precise qualification of exposure to a toxin is not always required, stated that causation nonetheless requires plaintiff to provide proof of “sufficient exposure to a substance to cause the claimed adverse health effect” … . …

Plaintiff challenges the opinion proffered by ABI’s expert, who relied upon calculations arising from experiments funded by defendants, in determining that decedent was exposed, if at all, to asbestos in amounts similar to those in ambient air, an exposure insufficient to cause cancer. While the reliability of those calculations could pose an issue of credibility, the fact that they were performed by a paid expert does not automatically invalidate their conclusions. Plaintiff offered no expert to counter ABI’s calculation of decedent’s cumulative lifetime exposure, and thus no question of fact was raised as to its validity … . Killian v A.C. & S., Inc., 2022 NY Slip Op 04610, First Dept 7-19-22

Practice Point: Here defendant presented evidence of simulation studies to show that plaintiff’s exposure to asbestos was not sufficient to have caused his cancer and plaintiff presented no expert evidence in opposition. Defendant’s motion for summary judgment should have been granted.

 

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THE PROOF AT TRIAL DID NOT DEMONSTRATE PLAINTIFF INHALED SUFFICIENT LEVELS OF ASBESTOS WHEN USING DEFENDANT’S TALCUM POWDER TO HAVE CAUSED HER MESOTHELIOMA; DEFENDANT’S MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant J & J’s motion to set aside the verdict in the asbestos-exposure trial should have been granted. Plaintiffs, as a matter of law, did not demonstrate the exposure to asbestos in defendant’s talcum powder caused plaintiff’s mesothelioma:

At trial, plaintiffs failed, as a matter of law, to carry their burden “to establish sufficient exposure to a substance to cause the claimed adverse health effect” … . To make such a showing, a plaintiff must present expert testimony providing a “scientific expression of the level of exposure to toxins in defendant’s products that was sufficient to have caused the disease” … . Even if it is assumed that plaintiffs presented sufficient evidence to support their mineral expert’s estimate of the amount of asbestos to which plaintiff Donna Olson was exposed each time she used J&J’s talcum powder products, plaintiffs’ medical expert never set forth a scientific expression of the minimum lifetime exposure to asbestos that would have been sufficient to cause mesothelioma, the disease in question … . Thus, the medical expert’s testimony that mesothelioma could have resulted from “a significant exposure above normal background levels” was insufficient. Matter of New York City Asbestos Litig., 2022 NY Slip Op 04611, First Dept 7-19-22

Practice Point: This is another decision in a group of four decisions released on the same day by the First Department finding plaintiff’s expert evidence failed, as a matter of law, to demonstrate plaintiff had inhaled enough asbestos to have caused lung disease.

 

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PLAINTIFF’S EXPERT EVIDENCE WAS NOT SUFFICIENT TO DEMONSTRATE PLAINTIFF INHALED ENOUGHT ASBESTOS FIBERS TO CAUSE HIS CANCER; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff did not present sufficient expert evidence that his exposure to asbestos from defendant ABI’s vinyl floor tiles and sheet flooring caused his cancer. Plaintiff was an electrician and he alleged he worked in close proximity to workers installing ABI’s flooring:

[I]n asbestos exposure and other toxic tort cases, “an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)” …  As to specific causation, “there must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of th[e] agent that are known to cause the [relevant] harm” … .

… “[B]ecause there are times that ‘a plaintiff’s exposure to a toxin will be difficult or impossible to quantify by pinpointing an exact numerical value,’ ‘it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community'” … . …

Plaintiff’s opposition failed to raise any issue of fact as to specific causation. A showing that the decedent “work[ed] in dust laden with asbestos generated from products containing asbestos” accompanied by “expert testimony that dust raised from manipulating asbestos products ‘necessarily’ contains enough asbestos to cause mesothelioma” is not enough … . Plaintiff’s medical expert did point to simulation studies measuring an average level of airborne asbestos as high as 0.27 f/cc during the cutting, sanding, and snapping of asbestos-containing floor tile. He did not, however, provide any correlation between the asbestos fiber levels to which plaintiff may have been exposed and the amount of inhaled asbestos that would have caused decedent’s lung cancer … .Pomponi v A.O. Smith Water Prods. Co., 2022 NY Slip Op 04612, First Dept 7-19-22

Practice Point: The general evidentiary requirements for a plaintiff’s prima facie case in an asbestos-exposure care are clearly explained. Plaintiff’s expert evidence was not sufficient to raise a question of fact about whether the exposure caused his cancer.

 

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WHETHER PLAINTIFF INHALED ENOUGH ASBESTOS TO CAUSE HIS CANCER WAS THE SUBJECT OF COMPETING SIMULATION STUDIES; PLAINTIFF’S EXPERT EVIDENCE WAS NOT SUFFICIENT TO DEFEAT DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant ABI’s motion for summary judgment in this asbestos-exposure case should have been granted. Plaintiff sold vinyl floor tiles made by ABI. Plaintiff alleged when he cut, manipulated and broke the tiles in demonstrations for customers, he inhaled asbestos fibers which were embedded in the vinyl tiles. The Fist Department found the expert evidence did not demonstrate plaintiff was exposed to sufficient levels of asbestos to cause lung cancer:

ABI had the burden to tender sufficient evidence to demonstrate the absence of any material issues of fact as to causation … . Once this burden was met, it would fall to plaintiff to produce evidentiary proof, in admissible form, establishing that there were disputed material issues of fact … . * * *

The dispute based upon the competing simulation studies about whether the decedent was exposed to asbestos in an amount that exceeded ambient levels typically found in non-occupational settings is not enough to avoid summary judgment. … [S]imply showing that exposures to a toxin were “‘excessive'” or “‘far more'” a certain threshold (ambient) is not enough … . … [P]laintiff had the “‘difficult, if not impossible,'” task of establishing that his decedent had a sufficient exposure to asbestos to have caused his lung cancer … . [Plaintiff’s expert] does not provide any reliable correlation between the presence of asbestos fiber concentrations found in the studies and how much in haled asbestos would have caused lung cancer generally and the decedent’s lung cancer in particular. Dyer v Amchem Prods. Inc., 2022 NY Slip Op 04609, First Dept 7-19-22

Practice Point: This decision includes a useful discussion of the proof requirements in an asbestos-exposure case. The decision characterized the plaintiff’s task of demonstrating sufficient exposure to cause cancer as “difficult, if not impossible.”

 

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WHERE THE EMPLOYER OF A PHYSICIAN HAS PAID THE PREMIUMS FOR MEDICAL MALPRACTICE INSURANCE AND THE INSURANCE COMPANY DEMUTUALIZES, ABSENT AN AGREEMENT TO THE CONTRARY, THE PROCEEDS GO TO THE PHYSICIAN, NOT THE EMPLOYER (FIRST DEPT). ​

The First Department, reversing Supreme Court based on a recent Court of Appeals ruling, determined the proceeds from the demutualization of a medical malpractice insurer belong to the physician, not to the physician’s employer (the plaintiff here):

The Court of Appeals has recently held that “when an employer pays premiums to a mutual insurance company to obtain a policy of which its employee is the policyholder, and the insurance company demutualizes, absent contrary terms in the contract of employment, insurance policy, or separate agreement, the policyholder is entitled to the proceeds from the demutualization” … .

… [D]efendant is entitled to the demutualization proceeds. There is no evidence of any contrary terms in the contract of employment, insurance policy, or separate agreement. In fact, defendant’s employment agreement provides that “[t]he Employer agrees that it will pay or reimburse the Employee for that portion of such insurance premiums that are attributable to the period coinciding with the Term [of employment].” Plaintiff … acknowledged … that it paid the insurance premiums “as a fringe benefit to the Physician employee.” … .

It is irrelevant that plaintiff, who is not listed as the policy administrator in the policy, paid the policy premiums during the relevant period and acted as the policy administrator … . Mid-Manhattan Physician Servs., P.C. v Dworkin, 2022 NY Slip Op 04523, First Dept 7-12-22

​Similar issues and result in Sullivan v Northwell Health, Inc., 2022 NY Slip Op 04525, First Dept 7-12-22

​Practice Point: Where the employer of a physician has paid the premiums for medical malpractice insurance and the insurance company demutualizes, absent an agreement to the contrary, the proceeds go to the physician, not the employer.

 

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THE POLICE WERE “ACTING IN THE PUBLIC SERVICE FUNCTION” WHEN THEY SEARCHED THE INJURED DEFENDANT AND FOUND A CARTRIDGE; DEFENDANT WAS DRIFTING IN AND OUT OF CONSCIOUSNESS; THE POLICE PROPERLY SEARCHED HIS POCKETS FOR IDENTIFICATION; SUPPRESSION DENIED (FIRST DEPT).

The First Department determined the search of plaintiff’s clothing by the police did not require suppression of the cartridge found in defendant’s pocket because the police were “acting in the public service function” in aiding the injured defendant:

… [T]he hearing court … denied suppression of a cartridge recovered from defendant’s pants pocket, correctly finding that “the police were acting in their public service function in rendering aid when searching the defendant’s clothing for identification.” When police arrived, defendant was lying on the ground and screaming that he had been shot. He appeared to have been shot in the leg, he was drifting in and out of consciousness, and he could not state his name. At that point, the officers were treating defendant as an injured victim rather than a suspect, and were not performing a law enforcement function … . Under the circumstances, it was reasonable for the officers to believe defendant needed immediate assistance and to search his pants for identification as they waited for him to be transported to the hospital …  In performing this public service function, it was reasonable for the police to ascertain the identity of the person they were aiding and to supply that information to medical personnel, and defendant did not appear capable of communicating his identity. People v Hatchett, 2022 NY Slip Op 04282, First Dept 7-5-22

Practice Point: When the police aid an injured person and search the person’s pockets for identification, they are “acting in the public service function.” Suppression of any contraband found in the search will be denied.

 

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QUESTIONS OF FACT ABOUT WHETHER THE INCAPACITATED PERSON (IP) WAS “INSANE” WITHIN THE MEANING OF THE CPLR WHEN HE WAS REPRESENTED BY THE DEFENDANT ATTORNEY MUST BE DETERMINED AT THE LEGAL MALPRACTICE TRIAL; IF THE IP WAS INSANE, THE MALPRACTICE STATUTE OF LIMITATIONS WILL BE TOLLED; IF NOT THE MALPRACTICE ACTION IS UNTIMELY (FIRST DEPT).

The First Department determined questions about the incapacitated person’s (IP’s) sanity should be part of the legal malpractice trial. If the IP is determined to have been “insane” at the time he was represented by defendant attorney, the statute of limitations for the legal malpractice action would have been tolled, if not, the action was not timely:

The parties do not dispute that [defendant attorney] established prima facie that this action asserting breach of fiduciary duty and related causes of action (the malpractice action) was commenced after the applicable statutes of limitations had expired. However, plaintiff raised an issue of fact whether the statutes of limitations were tolled for “insanity” (… CPLR 208[a]). Viewed in the light most favorable to plaintiff, the record presents issues of fact as to the IP’s ability to protect his legal rights and his overall ability to function in society at the time his claims against [defendant attorney] accrued … . Matter of Verdugo v Smiley & Smiley, LLP, 2022 NY Slip Op 04138, First Dept 6-28-22

Practice Point: There is an “insanity” statute-of -imitations toll in the CPLR. Here there a question of fact whether an incapacitated person was insane when he was represented by defendant attorney such that the legal malpractice statute of limitations was tolled.

 

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