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Reports by Attorneys Which Relate to an Insurer’s Decision to Accept or Reject a Claim Are Discoverable—Reports by Attorneys Made After the Claim Is Rejected Are Not Discoverable

The Fourth Department determined the records generated by attorneys which related to an insurer’s decision whether to accept or reject a claim were discoverable as records made in the regular course of business—even if the records relate in part to potential litigation.  Records generated by attorneys after the claim was denied are privileged and not discoverable:

“It is well settled that [t]he payment or rejection of claims is a part of the regular business of an insurance company. Consequently, reports which aid it in the process of deciding which of the two indicated actions to pursue are made in the regular course of its business’ ” … . “Reports prepared by . . . attorneys before the decision is made to pay or reject a claim are thus not privileged and are discoverable . . . , even when those reports are mixed/multi-purpose’ reports, motivated in part by the potential for litigation with the insured” … . Here, the documents submitted to the court for in camera review constitute multi-purpose reports motivated in part by the potential for litigation with plaintiff, but also prepared in the regular course of defendant’s business in deciding whether to pay or reject plaintiff’s claim, and thus plaintiff is entitled to disclosure of those documents.  Lalka v Aca Ins. Co., 2015 NY Slip Op 03995, 4th Dept 5-8-15

 

Whether the Insurer Is Obligated to Indemnify the Driver Turns on Whether the Driver Acted Intentionally When His Vehicle Struck the Rear of Decedent’s Vehicle—-There Was a Question of Fact Whether the Incident Was an Accident or the Result of Intentional Conduct

The Fourth Department determined there was a question of fact whether the striking of decedent’s car from behind was intentional or accidental.  If the rear driver acted intentionally, his insurer had no duty to indemnify the rear driver. The court explained the terms “accidental” and “intentional” in this context:

“In deciding whether a loss is the result of an accident, it must be determined, from the point of view of the insured, whether the loss was unexpected, unusual and unforeseen” … . We must look to the allegations of the complaint in the underlying action, but may also consider extrinsic facts … .

Insurable ” [a]ccidental results can flow from intentional acts’ ” … . On the other hand, “when the damages alleged in the [underlying] complaint are the intended result which flows directly and immediately from [the insured’s] intentional act, . . . there is no accident, and therefore, no coverage” … . “[M]ore than a causal connection between the intentional act and the resultant harm is required to prove that the harm was intended” … . The exclusion for an intentional injury, however, will apply where the injuries are ” inherent in the nature’ of the wrongful act”… . Kemper Independence Ins. Co. v Ellis, 2015 NY Slip Op 04011, 4th Dept 5-8-15

 

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County Department of Human Services Was Entitled to a Hearing On Whether It Should Be Held In Contempt for Failing to Place a Person In Need of Supervision In Foster Care

The Fourth Department determined the County Department of Human Services should not have been held in contempt without a hearing for failing to return the respondent (a person in need of supervision) to foster care.  The Department had raised a defense, i.e., the Department had tried but was unable to place the respondent, and was therefore entitled to a hearing. Matter of Andrew B., 2015 NY Slip Op 03999, 4th Dept 5-8-15

 

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Ordinance Prohibiting “Unnecessary Noise” Is Not Unconstitutionally Vague

The defendant was stopped by the police for a violation of a city ordinance prohibiting “unnecessary noise” (a loud car stereo).  The defendant argued that the stop, which resulted in drug charges, was not justified by probable cause because the “unnecessary noise” ordinance is “unconstitutionally vague.” The Fourth Department determined the ordinance was not unconstitutionally vague because it is tailored to the context of what can be heard more than 50 feet from a vehicle on a public highway and is sufficiently definite to put defendant on notice his conduct was forbidden:

Municipal ordinances “enjoy an exceedingly strong presumption of constitutionality’ ” …, and such legislative enactments “are to be construed so as to avoid constitutional issues if such a construction is fairly possible”… . “The void-for-vagueness doctrine embodies a rough idea of fairness’ ” …, and “an impermissibly vague ordinance is a violation of the due process of law” … . In addressing such a challenge, courts first “must determine whether the statute in question is sufficiently definite to give a person of ordinary intelligence fair notice that his [or her] contemplated conduct is forbidden by the statute” … . “Second, the court must determine whether the enactment provides officials with clear standards for enforcement”

* * * … [T]he City Ordinance is not unconstitutionally vague because the section under which defendant was convicted was tailored to a specific context—the creation of “unnecessary noise” beyond 50 feet of a motor vehicle on a public highway (City Ordinance § 40-16 [b]). In our view, “[w]hat is usual noise in the operation of a car [radio or other sound production device] has become common knowledge . . . and any ordinary motorist should have no difficulty in ascertaining” whether the noise in question violates the applicable standard … . Based on the foregoing, we conclude that the ordinance in question was “sufficiently definite” to put defendant on notice that his conduct was forbidden, and that it provided the police “with clear standards for enforcement” … . People v Stephens, 2015 NY Slip Op 03991, 4th Dept 5-8-15

 

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120-Day Time Limit for Bringing a Summary Judgment Motion Properly Extended by Stipulation

The Fourth Department determined the 120-day time limit for making summary judgment motions (after the filing of a note of issue) was properly extended by stipulation.  The dissent felt that such a stipulation was invalid because it violated public policy: “While we agree with our dissenting colleague that the court was not required to accept the express stipulation of the parties to extend the 120-day deadline in CPLR 3212, we note that the court in fact did so in advance of the motion … . Moreover, unlike our dissenting colleague, we do not view the timing requirements applicable to motions for summary judgment as a matter of public policy that may not be affirmatively waived by a party …”. Bennett v St. John’s Home & St. John’s Health Care Corp., 2015 NY Slip Op 03952, 4th Dept 5-8-15

 

Person Injured After Being Thrown from a Motorcycle Is an “Occupant” of the Motorcycle Within the Meaning of the Insurance Law and Is Therefore Not Eligible for First-Party No-Fault Benefits

The Fourth Department, in a full-fledged opinion by Justice Sconiers, determined a person injured after being thrown from a motorcycle was an “occupant” of the motorcycle within the meaning of the Insurance Law and therefore ineligible for first-party no-fault benefits:

Previously, motorcycle operators and passengers injured in motor vehicle accidents were generally entitled to first-party benefits under the no-fault law. Former section 672 (1) (a) of the Insurance Law provided that those entitled to first-party benefits under the no-fault scheme encompassed “persons, other than occupants of another motor vehicle.” That category included motorcyclists on a par with pedestrians … . The statute was amended in 1977 to exclude occupants of motorcycles from such benefits (see L 1977, ch 892, § 9), thereby terminating the treatment of motorcycle occupants “as pedestrians rather than motorists [who] enjoy the benefits of no-fault at no cost” … . The successor of the amended statute, Insurance Law § 5103 (a) (1), currently provides that, under a policy of insurance issued on an automobile, first-party benefits are available to “[p]ersons, other than occupants of another motor vehicle or a motorcycle” … . The exclusions in the Kemper and Farm and Family insurance policies of “any person while occupying a motorcycle” are consistent with Insurance Law § 5103 (a) (1) and the regulations promulgated thereunder (see 11 NYCRR 65-1.1 [d]). Boyson v Kwasowsky, 2015 NY Slip Op 03964, 4th Dept 5-8-15

 

Evidence of Headaches Did Not Raise an Issue of Fact Re: “Serious Injury”

The Fourth Department, over a substantial dissent, determined that the evidence of plaintiff’s headaches did not raise a question of fact about whether the headaches constituted “serious injury” within the meaning of Insurance Law 5102 (d):

…[W]e agree with defendant that the court erred in concluding that plaintiff raised an issue of fact based upon her complaints of headaches. Although plaintiff submitted excerpts from her deposition in which she testified that “basically every day I would have some type of headache,” it is well settled that “subjective complaints of pain or headaches are insufficient to establish serious injury’ ” … . Here, the record contains no objective basis for plaintiff’s headache complaints … . Moreover, plaintiff “offered no proof that [her] headaches in any way incapacitated [her] or interfered with [her] ability to work or engage in activities at home” … . Downie v McDonough, 2014 NY Slip Op 03048, 4th Dept 5-2-14

 

Allegation of Interference With Possession of Manufactured Home Stated Cause of Action for Conversion

The Fourth Department determined plaintiff had stated a cause of action for conversion.  Plaintiff alleged he had purchased a manufactured home and defendants prevented him from removing the home from defendant’s park:

“A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession” … . We conclude that the complaint alleged sufficient facts to state a cause of action for conversion … . The complaint alleged that plaintiff was the owner of the manufactured home and that defendants interfered with plaintiff’s possession of that property by preventing plaintiff from removing the home from defendants’ park. The court dismissed that cause of action on the ground that there was no showing that defendants took ownership of the unit or obtained any benefit from the unit remaining on the property. We conclude, however, that plaintiff’s allegation that defendants interfered with plaintiff’s right to possess the property is sufficient to state a cause of action for conversion …, which, contrary to the court’s analysis, does not require an allegation, much less a showing, that defendants took ownership of the property or benefitted therefrom. Hillcrest Homes LLC v Albion Mobile Homes Inc, 2014 NY Slip Op 03065, 4th Dept 5-2-14

 

Failure to Instruct the Jury on the Sole Proximate Cause Defense Required Reversal of Plaintiff’s Verdict

The Fourth Department, over a dissent, reversed the judgment for the plaintiff and ordered a new trial finding that the trial judge should have instructed the jury on the sole proximate cause defense.  The plaintiff used a wobbly ladder while painting and fell. The trial judge felt that the sole proximate cause defense (i.e., that the plaintiff’s acts or omissions were the sole proximate cause of the accident) would have been triggered only if the plaintiff ignored an instruction to use a different ladder. The Fourth Department explained that the defense could also be triggered if the plaintiff knew he had other options available but chose to use the wobbly ladder:

…[T]he court held that plaintiff’s choice of ladder could not be the sole proximate cause of his injuries unless he had been told to use another safety device and had ignored that directive. That was an incorrect statement of the law inasmuch as it is not necessary that a plaintiff be told to use another safety device. Rather, there will be no liability imposed on a defendant if the defendant establishes that the plaintiff knew he should use another safety device and knew that such was available at the job site, but chose not to use it … . * * *

As the Court of Appeals held …, in order for there to be liability under section 240 (1), “the owner or contractor must breach the statutory duty under section 240 (1) to provide a worker with adequate safety devices, and this breach must proximately cause the worker’s injuries. These prerequisites do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them” … . Piotrowski v McGuire Manor Inc, 2014 NY Slip Op 03045, 4th Dept 5-2-14

 

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Hearing Required to Determine Whether Defense Counsel’s Failure to Take Appropriate Steps to Have a Federal Prisoner Testify for the Defense Constituted Ineffective Assistance

The Fourth Department determined a hearing was necessary to address defendant’s motion to vacate his conviction.  The motion papers raised the issue of whether defense counsel’s failure to take adequate steps to ensure a federal prisoner would be available to testify on behalf of the defense constituted ineffective assistance.  Defense counsel submitted an affidavit stating he believed the prisoner’s testimony would have been helpful to the defendant and his failure to have the prisoner appear was not part of a defense strategy. The court also directed that the hearing look into the credibility of the co-defendant who, in his plea colloquy, stated that he acted alone.  People v Becoats, 2014 NY Slip Op 03088, 4th Dept 5-2-14

 

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