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THE INSURED, WHO WAS SEEKING UNINSURED MOTORIST BENEFITS, DID NOT TIMELY NOTIFY HER INSURER OF THE TRAFFIC ACCIDENT; THEREFORE THE INSURER’S PETITION TO PERMANENTLY STAY ARBITRATION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the insurer’s petition to permanently stay arbitration in this rear-end collision should have been granted. The insured sought to recover uninsured motorist benefits but did not timely notify the insurer of the accident:

The respondent, Irina Ostapenko, allegedly was injured when the vehicle she was driving was struck in the rear by another vehicle that then left the scene. The vehicle Ostapenko was driving was insured by the petitioner. Ostapenko filed a request for uninsured motorist arbitration. The petitioner commenced this proceeding, inter alia, to permanently stay arbitration. In an order … , the Supreme Court, among other things, in effect, denied that branch of the petition which was to permanently stay arbitration. The petitioner appeals.

The Supreme Court should have granted that branch of the petition which was to permanently stay arbitration. The subject insurance policy required the insured or someone acting on the insured’s behalf to report the collision within 24 hours or as soon as reasonably possible to a “police, peace or judicial officer or to the Commissioner of Motor Vehicles.” Ostapenko’s failure to comply with this requirement in the absence of a valid excuse vitiates coverage … . Matter of Progressive Direct Ins. Co. v Ostapenko, 2019 NY Slip Op 07586, Second Dept 10-23-19

 

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THE ZONE OF DANGER THEORY OF LIABILITY IS AVAILABLE ONLY TO THE IMMEDIATE RELATIVES OF THE INJURED PARTY; PETITIONERS’ CHILDREN WITNESSED THE FATAL INJURY TO ANOTHER STUDENT WHO WAS NOT RELATED; PETITIONERS’ REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST THE SCHOOL DISTRICT ALLEGING INTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim against the school district should not have been granted. The petitioners are the parents of students who were participating in football training when the pole or log they were carrying dropped and fatally injured another student. The late notice of claim asserted intentional and negligent infliction of emotional distress based upon the petitioners’ children being in the “zone of danger.” However, the “zone of danger” theory can be raised only by the immediate relatives of the injured party:

“The zone-of-danger rule . . . allows one who is himself or herself threatened with bodily harm in consequence of the defendant’s negligence to recover for emotional distress resulting from viewing the death or serious physical injury of a member of his or her immediate family” … . Here, the petitioners’s children were not immediate family members of the decedent. Thus, they have no legally cognizable claim to recover damages for emotional distress they allegedly sustained from witnessing the accident … , or based upon the District’s alleged refusal to provide continued counseling and maintain the coaching staff support system, as such damages are a financial consequence of their emotional trauma … . Moreover, the District demonstrated that, under the circumstances presented, it was not authorized to pay for continued outside counseling services for the petitioners’ children, and the record reflects that the District provided ongoing counseling from mental health professionals employed by the District. Under the circumstances, the proposed claim against the District is patently meritless … . Matter of Kmiotek v Sachem Cent. Sch. Dist., 2019 NY Slip Op 07583, Second Dept 10-23-19

 

MOTHER’S CUSTODY PETITION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING; CUSTODY PETITION MAY BE HEARD JOINTLY WITH A PERMANENCY HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined than mother’s petition for custody should not have been dismissed without a hearing and noted that a custody petition may be heard jointly with a permanency hearing:

The appeal from the order dated September 27, 2018, has not been rendered academic by the permanency hearing order dated November 13, 2018, which apparently changed the permanency goal from working toward legal guardianship by the maternal grandmother to guardianship by a different relative. The order appealed from denied the mother’s petition for custody, and the issue of whether that order was proper will continue to affect the mother’s rights … .

Custody determinations should “[g]enerally be made only after a full and plenary hearing and inquiry” … . Here, the record does not reveal the existence of circumstances that would bring this case within the narrow exception to the general right to a hearing … .

However, the petition for custody may be heard jointly with any permanency hearing held pursuant to Family Court Act article 10-A (see Family Ct Act § 1089-a[a] …). Matter of Barcene v Parrilla, 2019 NY Slip Op 07575, Second Dept 10-23-19

 

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DNA EVIDENCE TO DEMONSTRATE THE COMPLAINANT’S SEXUAL HISTORY PROPERLY EXCLUDED AS A VIOLATION OF THE RAPE SHIELD LAW (SECOND DEPT).

The Second Department determined Supreme Court correctly refused to allow defendant to present DNA evidence to demonstrate the complainant’s sexual history in this sexual offense case:

We agree with the Supreme Court’s determination to preclude the introduction of certain DNA evidence at trial. Introducing evidence of additional DNA donors not linked to the defendant for the purpose of demonstrating the complainant’s sexual history with persons other than the defendant falls “squarely within the ambit of the Rape Shield Law, which generally prohibits [e]vidence of a victim’s sexual conduct’ in a prosecution for a sex offense under Penal Law article 130 (CPL 60.42) because such evidence . . . serves only to harass the alleged victim and confuse the jurors'” … . Moreover, the evidence sought to be admitted was not relevant to any defense … . Contrary to the defendant’s contention, introducing the evidence through a witness other than the complainant does not render the Rape Shield Law inapplicable … . People v Hubsher, 2019 NY Slip Op 07416, Second Dept 10-16-19

 

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DEFENDANT’S WAIVER OF APPEAL DID NOT REMAIN VALID AFTER DEFENDANT PLED GUILTY TO A DIFFERENT CRIME WHEN THE INITIAL SENTENCE PROMISE COULD NOT BE FULFILLED (SECOND DEPT).

The Second Department determined defendant’s waiver of appeal was invalid because his consent to the waiver was not renewed after he pled to a different crime after the initial sentence promise could not met:

… [T]he Supreme Court was unable to fulfill its sentencing commitment because the sentence it had promised was illegal … . Although the defendant ultimately agreed to plead guilty to a different crime in return for a different sentence, the modification of the material terms of the original plea agreement “vitiated defendant’s knowing and intelligent entry of the waiver of appeal”… . Under such circumstances, “it was incumbent on the court to elicit defendant’s continuing consent to waive his right to appeal” … . Since the court did not obtain the defendant’s continuing consent to waive his right to appeal after the material terms of the original plea agreement were changed, the defendant is not precluded from arguing that the sentence imposed was excessive … . People v Ellison, 2019 NY Slip Op 07413, Second Dept 10-16-19

 

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ACTION AGAINST GAS COMPANY FOR CONTAMINATION OF REAL PROPERTY ACCRUED WHEN INJURY SHOULD HAVE BEEN DISCOVERED AND WAS TIME BARRED; ACTION FOR NUISANCE RELATING TO REMEDIATION EFFORTS, HOWEVER, IS SUBJECT TO A DIFFERENT STATUTE OF LIMITATIONS PROVISION AND WAS NOT TIME-BARRED (SECOND DEPT).

The Second Department determined the causes of action against a gas company to recover damages for contamination of real property were time-barred, but the nuisance actions stemming from remediation efforts were not time-barred:

“Generally, an action to recover damages for personal injury or injury to property must be commenced within three years of the injury” … . “[T]he three year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances,” however, “shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier” (CPLR 214-c[2] …). “For purposes of CPLR 214-c, discovery occurs when, based upon an objective level of awareness of the dangers and consequences of the particular substance, the injured party discovers the primary condition on which the claim is based'” … .  …

… [T]he defendants here demonstrated that they undertook extensive efforts beginning in 1999 to inform and engage with property owners potentially affected by the contamination and remediation by conducting, among other things, door-to-door canvassing, direct mailings of newsletters and fact sheets, numerous public meetings, and highly visible and disruptive remediation work. The defendants also inspected the subject property twice in 2005 to determine whether certain remediation work between those inspections caused any damage, and mailed the results of their inspections to the plaintiff in 2006. … The defendants … established, prima facie, that the plaintiff should have discovered, through the exercise of reasonable diligence, the primary condition upon which its exposure-related claims were based prior to January 22, 2007 … . …

We disagree, however, with the Supreme Court’s determination that the causes of action to recover damages for public and private nuisance allegedly arising from the defendants’ remediation work were time-barred … . These causes of action are subject to the limitations period in CPLR 214(4) rather than CPLR 214-c(2) because they do not seek “to recover damages for personal injury or injury to property caused by the latent effects of exposure” … .  Here, the papers submitted in support of the defendants’ motion demonstrated that there was no dispute that the defendants conducted remediation work in close proximity to the subject property shortly after new tenants signed a lease to occupy the space in 2008 … . Onder Realty, Inc. v Keyspan Corp., 2019 NY Slip Op 07406, Second Dept 10-16-19

 

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CO-OP DISCRIMINATED AGAINST THE DISABLED COMPLAINANT BY REFUSING TO ALLOW HER TO KEEP A DOG IN HER APARTMENT (SECOND DEPT).

The Second Department determined the Commissioner of the NYS Division of Human Rights had properly found the co-op discriminated against complainant (Hough) by refusing to allow her to keep a dog in her apartment:

To establish that a violation of the Human Rights Law occurred and that a reasonable accommodation should have been made, Hough was required to demonstrate that she is disabled, that she is otherwise qualified for the tenancy, that because of her disability it is necessary for her to keep a dog in order for her to use and enjoy the apartment, and that reasonable accommodations could be made to allow her to keep a dog … . The term disability, as defined by Executive Law § 292(21), means “(a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment.”

Here, there was substantial evidence in the record to conclude that Hough suffered from generalized anxiety disorder, an impairment demonstrable by medically accepted clinical or laboratory diagnostic techniques, and that she required the use of a companion dog to use and enjoy her apartment. There is sufficient evidence that having a dog would affirmatively enhance Hough’s quality of life by ameliorating the effects of her disability, thus demonstrating necessity within the meaning of the Human Rights Law … . Matter of 1 Toms Point Lane Corp. v New York State Div. of Human Rights, 2019 NY Slip Op 07392, Second Dept 10-16-19

 

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SURGEON, WHO HAD NO MEMORY OF PLAINTIFF’S PROCEDURE, SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY ABOUT HIS USUAL CUSTOM AND PRACTICE IN PERFORMING A HERNIA REPAIR, DEFENSE JUDGMENT REVERSED IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing the defense verdict in a medical malpractice case, determined the trial court should not have allowed the defendant doctor, who had no independent memory of the hernia surgery he performed on plaintiff, to testify about his usual custom and practice, or habit. The surgery involved placement of a mesh patch on the abdominal wall. In this case a portion of the patch had come off the wall and adhered to internal organs:

“Custom and practice evidence draws its probative value from the repetition and unvarying uniformity of the procedure involved as it depends on the inference that a person who regularly follows a strict routine in relation to a particular repetitive practice is likely to have followed that same strict routine at a specific date or time relevant to the litigation” … . To justify the introduction of habit evidence, “a party must be able to show on voir dire, to the satisfaction of the court, that the party expects to prove a sufficient number of instances of the conduct in question” … . …

Although habit evidence may be admissible in a medical malpractice action where the defendant physician makes the requisite showing, here, the evidence did not demonstrate that the defendant’s suturing of the Kugel Composix mesh patch represented a deliberate and repetitive practice by a person in complete control of the circumstances … . …

Although the defendant testified that he had performed hundreds of hernia repairs using mesh patches, he could not remember how many times he had used the Kugel Composix mesh patch before he performed the injured plaintiff’s surgery. He testified at his deposition that he had used the Kugel Composix mesh patch at least “a couple times” before he performed the injured plaintiff’s procedure. Although the defendant contends that the procedure for suturing the Kugel Composix mesh patch was the same as for other mesh patches, the Kugel Composix mesh patch had features that were different from other mesh patches, including a “pocket” intended to protect the intestines. Martin v Timmins, 2019 NY Slip Op 07391. Second Dept 10-16-19

 

VEHICLE WHICH STOPPED BEHIND A DISABLED VEHICLE FURNISHED THE CONDITION FOR THE SUBSEQUENT REAR-END COLLISION BUT WAS NOT THE PROXIMATE CAUSE OF THE COLLISION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Perez defendants’ motion for summary judgment in this rear-end collision case should have been granted. Perez stopped his vehicle in the left lane behind a disabled vehicle when the driver of the disabled vehicle flagged him down. Plaintiff came to a stop behind the Perez vehicle and was attempting to go around the Perez vehicle when plaintiff’s vehicle was struck from behind by the Chen vehicle. The Second Department held that the Perez vehicle furnished the condition for the traffic accident but did not cause the accident. The accident was caused by Chen’s failure to maintain a safe distance:

This evidence demonstrated that Perez’s conduct of stopping his vehicle in the left lane of travel with its hazard lights engaged was not a proximate cause of the collision between Chen’s SUV and the plaintiff’s vehicle, but rather merely furnished the condition or occasion for it … . Since the plaintiff was able to safely bring his vehicle to a complete stop behind Perez’s vehicle, where it remained stopped for approximately two minutes prior to the accident, any purported negligence on Perez’s part was not a proximate cause of the collision between Chen’s SUV and the plaintiff’s vehicle or of the plaintiff’s injuries … . The sole proximate cause of the accident was Chen’s failure to maintain a safe driving speed and distance behind the plaintiff’s vehicle … . Kante v Tong Fei Chen, 2019 NY Slip Op 07390, Second Dept 10-16-19

 

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A LETTER INDICATING THE DEBT WOULD BE ACCELERATED IF THE ARREARS WERE NOT PAID DID NOT SERVE TO ACCELERATE THE DEBT IN THIS FORECLOSURE ACTION; DEFENDANT DID NOT DEMONSTRATE THE BANK FAILED TO COMPLY WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment contending the bank’s action was time barred and the bank failed to comply with RPAPL 1304 should have been denied. The 2010 letter from the bank which mentioned that the loan would be accelerated if the arreats were not paid did not serve to accelerate the debt. And defendant (Grella) did not demonstrate the bank failed to comply with the notice requirements of RPAPL 1304:

On or about December 12, 2010, the loan servicer sent Grella a notice of default which demanded payment of the arrears, and stated, in relevant part, that “[u]nless the payments on your loan can be brought current by January 11, 2011, it will become necessary to require immediate payment in full (also called acceleration) of your Mortgage Note. . . . If funds are not received by the above referenced date, we will proceed with acceleration.” Thereafter, the note and the mortgage were assigned to the plaintiff. …

Contrary to Grella’s contention, the language in the 2010 notice of default did not serve to accelerate the loan, as it “was nothing more than a letter discussing acceleration as a possible future event, which does not constitute an exercise of the mortgage’s optional acceleration clause” … . …

Here, as the moving party, Grella was required to affirmatively demonstrate that the plaintiff failed to strictly comply with the notice requirements of RPAPL 1304 … . Grella failed to make such a showing.  HSBC Bank USA, N.A. v Grella, 2019 NY Slip Op 07388, Second Dept 10-16-19

 

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