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INSURER’S DISCLAIMER OF COVERAGE IN THIS SLIP AND FALL CASE IS NOT SUFFICIENT PROOF THE TENANT FAILED TO PROCURE THE INSURANCE REQUIRED BY THE LEASE, SUMMARY JUDGMENT ON THE BREACH OF CONTRACT CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED.

The Fourth Department, reversing Supreme Court, determined summary judgment on the breach of contract cause of action should not have been granted. The property owner (the church) in this parking lot slip and fall case alleged that the lessee (Stepping Stones) failed to procure the insurance required by the lease. That allegation was based on the insurer’s disclaimer of coverage. The Fourth Department noted that the disclaimer could be erroneous and was therefore not proof of a breach of the lease:

In denying Stepping Stones’s motion in part and sua sponte granting summary judgment to the Church defendants on the breach of contract claims, the court reasoned that the Church defendants were entitled to judgment on the ground that, “[i]f the insurance carrier provided by Stepping Stones fails to cover the broad coverage demanded by the Lease, then Stepping Stones has breached the Lease agreement.”

On appeal, Stepping Stones addresses only the court’s determination with respect to the breach of contract claims. We agree with Stepping Stones that the court erred in granting summary judgment to the Church defendants on those claims, and we therefore modify the order accordingly. The mere fact that the insurance carrier disclaimed coverage for the accident does not establish as a matter of law that Stepping Stones failed to obtain the necessary coverage. It is possible that the insurance carrier’s disclaimer was improper, and that possibility may be explored by way of a declaratory judgment action … . Strong v St. Thomas Church of Irondequoit, 2017 NY Slip Op 05333, 4th Dept 6-30-17

 

ALTHOUGH NO SPECIAL RELATIONSHIP EXISTED BETWEEN BROKER AND PLAINTIFF, CAUSE OF ACTION BASED UPON PLAINTIFF’S SPECIFIC REQUEST FOR FLOOD INSURANCE (WHICH WAS NOT INCLUDED IN THE POLICY) SURVIVED SUMMARY JUDGMENT.

The Fourth Department determined summary judgment was properly awarded to the insurance broker (First Niagara) because no special relationship existed with plaintiff. Plaintiff specifically asked defendant whether plaintiff had flood insurance and further stated plaintiff wanted flood insurance. Defendant never responded. After flood damage occurred plaintiff learned the policy did not include flood insurance. Although no special relationship existed, plaintiff’s cause of action based upon the specific request for flood insurance survived summary judgment:

“As a general principle, insurance brokers have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so” … . “Absent a specific request for coverage not already in a client’s policy or the existence of a special relationship with the client, an insurance agent or broker has no continuing duty to advise, guide[ ] or direct a client to obtain additional coverage” … . “[A] special relationship may arise where (1) the agent receives compensation for consultation apart from payment of the premiums . . . (2) there was some interaction regarding a question of coverage, with the insured relying on the expertise of the agent . . . ; or (3) there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on’ “… .

Here, First Niagara met its initial burden of establishing that no special relationship existed, and plaintiff failed to raise a triable issue of fact  … . Specifically, First Niagara submitted evidence that it received no compensation from plaintiff over and above the commissions it received for the insurance policies it had procured, that plaintiff did not use First Niagara as its exclusive agent, and that plaintiff retained final decision-making authority over what coverage to obtain … . Thus, even accepting plaintiff’s allegations as true, we conclude that “the record in the instant case presents only the standard consumer-agent insurance placement relationship” … .

We further conclude, however, that First Niagara failed to tender “sufficient evidence to eliminate any material issues of fact from the case” relating to plaintiff’s specific request for flood insurance coverage … . … [T]here are triable issues of fact concerning whether plaintiff made a specific request for flood insurance coverage prior to the flood event … . Petri Baking Prods., Inc. v Hatch Leonard Naples, Inc., 2017 NY Slip Op 05338, 4th Dept 6-30-17

 

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PROOF OF STANDING DID NOT MEET CRITERIA OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN DENIED.

The Fourth Department, reversing Supreme Court, determined the bank’s proof in this foreclosure action did not meet the criteria of the business records exception to the hearsay rule:

We agree with defendants that the affidavit submitted by plaintiff in support of its motion was insufficient to establish standing. The Caliber employee who authored the affidavit stated that Caliber maintains plaintiff’s books and records pertaining to the mortgage account; plaintiff had physical possession of the original note before the action was commenced and remained in physical possession of the original note as of the date of the motion; and he was personally familiar with Caliber’s record-keeping practices. However, plaintiff failed to demonstrate that its records pertaining to defendants’ account were admissible as business records (see CPLR 4518 [a]), inasmuch as the affiant did not swear that he was personally familiar with plaintiff’s record-keeping practices and procedures… .

Contrary to plaintiff’s contention, the mere attachment of a copy of the note to the verified complaint does not demonstrate that plaintiff had physical possession of the original note when the action was commenced … , and thus is insufficient to establish standing. The Bank of N.Y. Mellon v Anderson, 2017 NY Slip Op 05349, 4th Dept 6-30-17

 

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HEARING NECESSARY ON MOTHER’S PETITION TO CHANGE THE SURNAME OF ONE OF THE CHILDREN, MATTER REMITTED.

The Fourth Department, reversing Supreme Court, determined a hearing should have been held on mother’s petition to change the surname of one of their children. The petition was opposed by father:

“Civil Rights Law § 63 authorizes an infant’s name change if there is no reasonable objection to the proposed name, and the interests of the infant will be substantially promoted by the change” … . With respect to infants, the statute provides in relevant part, that, if the court is “satisfied . . . that the petition is true, . . . that there is no reasonable objection to the change of name proposed, and . . . that the interests of the infant will be substantially promoted by the change,” the court may grant the petition (§ 63). With respect to the interests of the infant, “the issue is not whether it is in the infant’s best interests to have the surname of the mother or father, but whether the interests of the infant will be promoted substantially by changing his [or her] surname” … . Such a determination “requires a court to consider the totality of the circumstances” … .

Contrary to petitioner’s contention, respondent raised reasonable objections to the petition … . Petitioner is seeking to change the sons’ names to a surname that is not used by either parent or the sons’ half-sibling … . While “neither parent has a superior right to determine the surname of the child,” we have stated that “a father has a recognized interest in having his child bear his surname” … . Respondent also contends that an order granting the petition will have a deleterious effect on his relationship with his sons … . Although petitioner contends that the sons desire the name change, that contention is based on hearsay, and respondent challenges that contention. Inasmuch as the court did not conduct an in camera interview with them, we cannot resolve that disputed issue on this record. In any event, the sons are now of sufficient age and maturity to express their preference for a particular surname, and they have a right to be heard … . Matter of Niethe (McCarthy–DePerno), 2017 NY Slip Op 05371, 4th Dept 6-30-17

 

THE RECORD DID NOT SUPPORT THE AWARD OF PRIMARY PHYSICAL CUSTODY TO MOTHER, FAMILY COURT REVERSED, ALTHOUGH THE CHILD WISHED TO STAY WITH MOTHER, THAT FACTOR WAS AFFORDED LITTLE WEIGHT DUE TO THE CHILD’S YOUNG AGE.

The Fourth Department, reversing Family Court, determined there was not a sound and substantial basis in the record for awarding primary physical custody to the mother. Although the child wished to stay with mother, the Fourth Department accorded that factor little weight because of the child’s young age and mother’s permissive parenting style:

It is well settled that, in determining the child’s best interests, a court should consider “(1) the continuity and stability of the existing custodial arrangement, including the relative fitness of the parents and the length of time the present custodial arrangement has continued; (2) [the] quality of the child’s home environment and that of the parent seeking custody; (3) the ability of each parent to provide for the child’s emotional and intellectual development; (4) the financial status and ability of each parent to provide for the child; (5) the individual needs and expressed desires of the child; and (6) the need of the child to live with siblings” … . Additionally, a preexisting custody arrangement established by agreement is ” a weighty factor,’ ” but is not absolute … .

… With respect to the first factor, although the mother has been the child’s primary caretaker since birth, her living arrangements were unstable. The mother and the child had lived in seven different residences over the three years preceding the hearing, which resulted in the child changing schools every year. As the court recognized in its decision, the father is the more stable parent.

Concerning the quality of the home environment, the father and his wife own a home where the child has his own room, his own bed, and age-appropriate toys. In contrast, the mother’s chaotic living arrangements have put the child in regular contact with a half-sister who abuses drugs and have resulted in the child living in a home that was infested with fleas. Concerning the child’s emotional and intellectual development, the father ensures that the child attends school regularly and completes his homework. The record established that, since the father began playing a larger role in the child’s life, the child’s attendance and performance in school has improved dramatically. Also, the father facilitates the child’s participation in activities such as karate and swimming, encourages him to read for 20 minutes a day, and has adjusted his diet to address his medical needs. In contrast, the mother has shown a lack of concern for the child’s attendance and performance in school, shields him from experiences and foods that he finds unpleasant, and prefers that he play video games and eat fast food. Concerning the parents’ relative financial status, the father’s household income is significantly higher and his job is stable. In contrast, although the mother had difficulty affording her expenses and was evicted from prior residences, she continued to bounce from one part-time job to another and testified that she sees no need to work more than 28 hours a week. Matter of Braga v Bell, 2017 NY Slip Op 05348, 4th Dept 6-30-17

 

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QUESTIONS OF FACT RAISED WHETHER DEFAMATORY STATEMENTS WERE MOTIVATED SOLELY BY MALICE, THEREBY OVERCOMING QUALIFIED IMMUNITY, AND WERE MADE WITHIN THE SCOPE OF EMPLOYMENT, THEREBY RENDERING THE EMPLOYER VICARIOUSLY LIABLE.

The Fourth Department, modifying Supreme Court, determined the defamation causes of action properly survived summary judgment with respect to the speaker (Cramer) and the defamation causes of action against Cramer’s employers (the village and fire department), based upon vicarious liability, should not have been dismissed. Cramer had made statements to her employer that plaintiff was a child molester and she had tapes to prove it. There was evidence the statements were motivated solely by malice (and therefore not protected by qualified immunity) and were made within the scope of Cramer’s employment:

We conclude that defendants met their initial burden of establishing that any alleged statements are protected by a qualified privilege inasmuch as they were made between members of the organization in connection with plaintiff’s application for membership, and thus “the burden shifted to plaintiff[] to raise a triable issue of fact whether the statements were motivated solely by malice’ ” … . “If [Cramer’s] statements were made to further the interest protected by the privilege, it matters not that [she] also despised plaintiff. Thus, a triable issue is raised only if a jury could reasonably conclude that malice was the one and only cause for the publication’ ” … . Plaintiff provided the deposition testimony of the assistant fire chief, who testified that Cramer told him to “go tell [plaintiff] for me that if he continues with this application I’m going to pull out tapes that I have that shows he’s a child molester and that it’s going to ruin his life.” Plaintiff also provided the deposition testimony of a woman who was at the Fire Department … and heard Cramer call plaintiff a “child molester”; that same witness heard Cramer call plaintiff a pedophile in 2011. A Fire Department employee testified in his deposition that he heard Cramer say to her husband that she had proof that plaintiff was a “child molester.” In light of that evidence, we therefore conclude that plaintiff raised an issue of fact whether Cramer’s statements were motivated solely by malice and thus are not protected by a qualified privilege.

“An employer may be held vicariously liable for an allegedly slanderous statement made by an employee only if the employee was acting within the scope of his or her employment at the time that the statement was made”… . We further conclude that defendants failed to establish their entitlement to judgment as a matter of law that Cramer was not acting within the scope of her employment when she allegedly made the statements to the assistant fire chief and/or at the meeting … . Stevenson v Cramer, 2017 NY Slip Op 05353, 4th Dept 6-30-17

 

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PEOPLE PROPERLY ALLOWED TO IMPEACH THEIR OWN WITNESS, THE WITNESS’S TESTIMONY AFFIRMATIVELY DAMAGED THE PEOPLE’S CASE AND WAS NOT, AS ARGUED BY THE CONCURRING JUSTICES, MERELY NEUTRAL OR UNHELPFUL.

The Fourth Department, over a two-justice concurrence, determined the People were properly allowed to impeach their own witness when the witness testified she did not see the driver of the car from which shots were fired. She had previously stated the defendant was the driver. The concurring justices argued that the witness’s changed testimony did not affirmatively damage the People’s case, but was merely neutral and unhelpful, and therefore impeachment was not appropriate. However, the concurring justices deemed the error harmless:

Contrary to defendant’s … contention, the court properly allowed the People to impeach the credibility of the victim’s girlfriend when she testified that she did not see the driver of the vehicle who shot the victim, which contradicted her grand jury testimony and her sworn statement identifying defendant as the shooter. It is well established that “[e]vidence of a prior contradictory statement may be received for the limited purpose of impeaching the witness’s credibility with respect to his or her testimony . . . [where, as here], the testimony on a material fact’ . . . tend[s] to disprove the party’s position or affirmatively damage[s] the party’s case’ ” … . We conclude that the testimony of the witness denying that she saw the driver related to a material fact, the identity of the shooter, and affirmatively damaged the People’s case … , particularly because the victim did not testify. People v Ellison, 2017 NY Slip Op 05339, 4th Dept 6-30-17

 

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DEFENDANT WAS ERRONEOUSLY TOLD HE COULD APPEAL THE GRAND JURY EVIDENCE ISSUES AFTER ENTERING A GUILTY PLEA, HIS MOTION TO WITHDRAW HIS PLEA UPON LEARNING OF THE ERROR SHOULD HAVE BEEN GRANTED. ​

The Fourth Department determined defendant’s motion to withdraw his guilty plea should have been granted. Defendant was told he could appeal the court’s ruling that the grand jury minutes constituted legally sufficient evidence of the charges in the indictment. However the denial of a motion to dismiss arguing the insufficiency or inadmissibility of the grand jury evidence is not appealable after a guilty plea:

We agree with defendant … that the court erred in denying his motion to withdraw his plea of guilty. “A trial court is constitutionally required to ensure that a defendant, before entering a guilty plea, has a full understanding of what the plea entails and its consequences” … . It is nevertheless well established that a guilty plea is not invalid merely because the court “failed to specifically enumerate all the rights to which the defendant was entitled and to elicit from him or her a list of detailed waivers before accepting the guilty plea” … . Where the record establishes, however, that the court incorrectly advised the defendant of the consequences of his guilty plea, the resulting plea “must be vacated because it was not knowingly, intelligently and voluntarily entered” … .

Here, the court incorrectly advised defendant with respect to the rights that defendant was forfeiting in pleading guilty. It is well established that a defendant who pleads guilty may not challenge on appeal the sufficiency or the admissibility of the evidence before the grand jury … . The record establishes, however, that defendant asked to be assured that he could raise those issues on appeal from a judgment entered upon his plea of guilty, and the court assured him that he could do so. Given those assurances, which ended up being false, defendant accepted the plea deal, and entered a guilty plea. When defendant learned that he would not be able to raise on appeal the above grand jury issues, he made a motion to withdraw his plea, which the court denied. Under the circumstances, that was error. People v Colon, 2017 NY Slip Op 05343, 4th Dept 6-30-17

 

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MULTIPLICITOUS COUNTS OF SEX OFFENSE INDICTMENT DISMISSED IN THE INTEREST OF JUSTICE, THE COUNTS CHARGED SINGLE UNINTERRUPTED OFFENSES WHICH SHOULD NOT HAVE BEEN SPLIT INTO TWO COUNTS EACH.

The Fourth Department, in the interest of justice, determined several counts of the sex offense indictment were multiplicitous and therefore must be dismissed. The defendant was charged with two counts for single uninterrupted events, touching the victim’s vagina while simultaneously having the victim touch his penis:

An indictment is multiplicitous “when a single offense is charged in more than one count”… . A person commits the criminal offense of sexual abuse in the first degree when he or she subjects a person under 11 years old to sexual contact … . Nevertheless, a defendant may not be charged with separate counts of sexual abuse in the first degree for each instance of unlawful sexual contact where the instances of sexual contact constitute “a single, uninterrupted criminal act”  … . Here, for each instance of defendant touching a victim’s vagina, defendant was properly charged with a single and distinct count. By contrast, for each instance of defendant compelling a victim to touch his penis while defendant was simultaneously touching that victim’s vagina, defendant was charged with two separate counts. Charging two separate counts under those facts was improper inasmuch as the actions alleged in each pair of counts constituted a single, uninterrupted criminal act. We thus conclude that the indictment was multiplicitous, and we therefore dismiss counts 2, 5, 13 through 17, and 25 through 28 of indictment No. 5548 … . People v Sprague, 2017 NY Slip Op 05347, 4th dept 6-30-17

 

FOR CAUSE CHALLENGE TO JUROR WHO WANTED TO HEAR FROM EVERYONE (IMPLICITLY INCLUDING THE DEFENDANT) SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED.

The Fourth Department, reversing defendant’s conviction, determined a for cause challenge to a juror who said she would like to hear from everybody (implicitly including the defendant) should have been granted:

Upon being asked by defense counsel whether she thought that she “would have to hear from [defendant] in order to determine what the verdict should be,” the prospective juror responded, in relevant part, that she “would like to hear from everyone involved.” Defense counsel later asked the prospective juror, by way of confirmation, whether she had said that she would “like to hear from [defendant],” and the prospective juror reiterated that she “would like to hear from everyone.” We conclude that the prospective juror’s responses suggested that defendant had an obligation to testify, thereby casting serious doubt on her ability to render an impartial verdict … . We further conclude that the prospective juror’s silence when the court subsequently asked the entire panel whether anyone “needs to hear from the defendant or must hear from the defendant before he or she renders a verdict” did not constitute an unequivocal assurance of impartiality that would warrant denial of defendant’s challenge for cause … . People v Hargis, 2017 NY Slip Op 05363, 4th Dept 6-30-17

 

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