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PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON ACTION TO RECOVER PROCEEDS OF LIFE INSURANCE POLICY, INSURER DID NOT DEMONSTRATE THE INSURED WAS NOTIFIED OF THE PREMIUM DUE DATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the life insurance policy was never canceled and plaintiff was entitled to summary judgment in the action to recover the proceeds:

As relevant here, Insurance Law § 3211 provides that “[n]o policy of life insurance . . . delivered or issued for delivery in this state . . . shall terminate or lapse by reason of default in payment of any premium . . . in less than one year after such default, unless, for scheduled premium policies, a notice shall have been duly mailed at least fifteen and not more than forty-five days prior to the day when such payment becomes due” (Insurance Law § 3211[a][1]). The notice required shall “be duly mailed to the last known address of the policyowner” … . …

“The burden of proving valid cancellation of an insurance policy is upon the insurance company disclaiming coverage based on cancellation” … . We agree with the Supreme Court that William Penn failed to meet that burden and, therefore, was not entitled to summary judgment dismissing the complaint insofar as asserted against it. The evidence submitted on the motion and cross motion established that William Penn was aware that the policyholder had changed his address, but it failed to send a notice of premium due to that last known address at least fifteen days prior to the day when such payment became due … . Consequently, in accordance with the statute, the policy remained in effect for one year after the March 14, 2012, premium due date (see Insurance Law § 3211[a][1]). Since the policy was in effect on the date of the policyholder’s death, the plaintiff was entitled to summary judgment on the complaint insofar as asserted against William Penn … . Bradley v William Penn Life Ins. Co. of N.Y., 2019 NY Slip Op 02054, Second Dept 3-20-19

 

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DEFENDANT’S MOTION TO VACATE A DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED DESPITE FAILURE TO UPDATE THE ADDRESS ON FILE WITH THE SECRETARY OF STATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate a default judgment should have been granted, despite defendant’s failure to update its address with the Secretary of State:

There was no evidence that the defendant received actual notice of the summons delivered to the Secretary of State, which does not constitute personal delivery, in time to defend this action ). Although the defendant did not explain why it failed to update its address with the Secretary of State, “there is no necessity for a defendant moving pursuant to CPLR 317 to show a reasonable excuse for its delay” … . Furthermore, there is no basis in the record to conclude that the defendant deliberately attempted to avoid service, especially since the plaintiff had actual knowledge of the defendant’s Westchester County… business address at least two months before the summons and complaint were filed in this action and, thus, could have attempted to serve the defendant personally pursuant to CPLR 311 … . Nor is there any evidence that the defendant was placed on notice that the address on file with the Secretary of State was incorrect … . Moreover, the defendant met its burden of demonstrating the existence of a potentially meritorious defense … . Berardi Stone Setting, Inc. v Stonewall Contr. Corp., 2019 NY Slip Op 02053, Second Dept 3-20-19

 

QUESTION OF FACT WHETHER DEFENDANTS HAD ACTUAL OR CONSTRUCTIVE NOTICE OF ELEVATED WHEEL STOP IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department determined defendants’ motion for summary judgment in this parking lot slip and fall case was properly denied. There was a question of fact whether defendants had actual or constructive notice of an elevated plastic wheel stop:

The appellants failed to demonstrate, prima facie, that they lacked constructive notice of the elevated and broken wheel stop over which the plaintiff alleged she fell. They failed to present evidence of when the specific area where the plaintiff fell was last cleaned or inspected relative to when the subject accident occurred … . Baviello v Patterson Auto Convenience Store, Inc., 2019 NY Slip Op 02052, Second Dept 3-20-19

 

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QUESTION OF FACT WHETHER SCHOOL BUS DRIVER AND MONITOR TOOK APPROPRIATE STEPS AFTER THE FIGHT IN WHICH PLAINTIFF STUDENT WAS INJURED BROKE OUT ON THE BUS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the negligent supervision action against the school bus company and the school district should not have been dismissed. Plaintiff (J.W.) was injured by another student on the bus:

… [T]he bus company defendants and the school district established, prima facie, that they did not have sufficiently specific knowledge or notice of the dangerous conduct which caused injury … . However, in opposition, the plaintiff raised triable issues of fact as to whether J. W.’s injuries were a foreseeable consequence of the bus driver and bus monitor’s alleged failure to respond appropriately as the events unfolded … , and whether the bus driver and bus monitor took “energetic steps to intervene” in the fight … . Accordingly, the Supreme Court should have denied the motion of the bus company defendants and the school district for summary judgment dismissing the complaint insofar as asserted against them. Williams v Student Bus Co., Inc., 2019 NY Slip Op 02146, Second Dept 3-20-19

 

NONPARTY LAW FIRM SHOULD HAVE BEEN ALLOWED TO WITHDRAW AS COUNSEL FOR DEFENDANTS BASED UPON DEFENDANTS’ FAILURE TO PAY REASONABLE ATTORNEY’S FEES AND FAILURE TO COOPERATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the nonparty law firm, Kaufman, should have been allowed to withdraw as counsel for defendants T & V and Komninos based upon defendant’s failure to pay attorney’s fees and failure to cooperate:

The Supreme Court improvidently exercised its discretion in denying the law firm’s unopposed motion for leave to withdraw as counsel for T & V and Komninos. An attorney may be permitted to withdraw from employment where a client refuses to pay reasonable legal fees (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[c][5] … ). Likewise, an attorney may withdraw from representing a client if the client “fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[c][7] … ).

Here, the law firm established that T & V and Komninos failed in their obligation to pay the legal fees earned by the law firm and further failed to cooperate in their representation. Moreover, T & V and Komninos did not oppose that branch of the law firm’s motion which was for leave to withdraw as their counsel. Accordingly, that branch of the motion which was for leave to withdraw as counsel for T & V and Komninos should have been granted … . Villata v Kokkinos, 2019 NY Slip Op 02143, Second Dept 3-20-19

 

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AUDIT TRAIL, I.E., METADATA SHOWING WHO ACCESSED PLAINTIFF’S MEDICAL RECORDS, WHERE AND WHEN THEY WERE ACCESSED, AND ANY CHANGES TO THE RECORDS, WAS DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION ALLEGING IMPROPER TREATMENT AFTER SURGERY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the so-called “audit trail,” which indicates who accessed plaintiff’s medical records, where and when they were accessed and any changes made to the records (metadata), was discoverable in this medical malpractice action. The complaint alleged failure to properly treat plaintiff after surgery which led to infection and amputation:

The plaintiffs demonstrated, and Wyckoff [medical center] does not dispute, that an audit trail generally shows the sequence of events related to the use of a patient’s electronic medical records; i.e., who accessed the records, when and where the records were accessed, and changes made to the records … . Hospitals are required to maintain audit trails under federal and state law (see 45 CFR 164.312[b]; 10 NYCRR 405.10[c][4][v]). As argued by the plaintiffs, the requested audit trail was relevant to the allegations of negligence that underlie this medical malpractice action in that the audit trail would provide, or was reasonably likely to lead to, information bearing directly on the post-operative care that was provided to the injured plaintiff. Moreover, the plaintiffs’ request was limited to the period immediately following the injured plaintiff’s surgery. The plaintiffs further demonstrated that such disclosure was also needed to assist preparation for trial by enabling their counsel to ascertain whether the patient records that were eventually provided to them were complete and unaltered … .

In response to the plaintiffs’ threshold showing, Wyckoff failed to demonstrate that the requested disclosure was improper or otherwise unwarranted. Although Wyckoff argued that the audit trail may contain information that would not be useful to the plaintiffs, it did not dispute that the audit trail would nevertheless contain information pertaining to the medical care that it provided to the injured plaintiff in the wake of his foot surgery. Vargas v Lee, 2019 NY Slip Op 02142, Second Dept 3-20-19

 

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FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED OR FOR FAILURE TO PROSECUTE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure action should not have been dismissed as abandoned pursuant to CPLR 3215(c) or for neglect to prosecute pursuant to CPLR 3216:

It is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c) … . Rather, it is enough that the plaintiff timely takes the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference to establish that it initiated proceedings for entry of a judgment within one year of the default for the purposes of satisfying CPLR 3215(c) … . Within one year after the defendant’s default, the plaintiff took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference (see RPAPL 1321[1]) and, thus, did not abandon this action … . …

Furthermore, the Supreme Court was without power to direct dismissal of the complaint pursuant to CPLR 3216 on the ground of lack of prosecution. While CPLR 3216 authorizes the dismissal of a complaint for neglect to prosecute, joinder of issue and service of a 90-day notice are conditions precedent to a dismissal under that statute  … . Here, dismissal was improper, as issue was never joined in the action … . US Bank, N.A. v Picone, 2019 NY Slip Op 02141, Second Dept 3-20-19

 

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ELDERLY PLAINTIFF’S HEALTH PROBLEMS EXCUSED HER FAILURE TO APPEAR FOR A 50-h HEARING, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the elderly plaintiff’s complaint, based upon a fall at defendant’s city hospital, should not have been dismissed because plaintiff failed to appear at an oral examination pursuant to General Municipal Law 50-h. Her failure to appear was due to medical problems and should have been excused:

“Compliance with a demand for a General Municipal Law § 50-h examination is a condition precedent to the commencement of an action against a municipal defendant, and the failure to so comply warrants dismissal of the action”  … . The failure to submit to such an examination, however, may be excused in exceptional circumstances, such as extreme physical or psychological incapacity … .

Under the circumstances of this case, the plaintiff’s failure to appear for the examination pursuant to General Municipal Law § 50-h should have been excused in light of the nature and extent of the plaintiff’s medical and mental conditions, as documented by her doctors’ letters … . Riabaia v New York City Health & Hosps. Corp., 2019 NY Slip Op 02136, Second Dept 3-20-19

 

PLAINTIFF WAS INJURED WORKING ON AN HVAC SYSTEM, THE WORK WAS ROUTINE MAINTENANCE, NOT COVERED BY LABOR LAW 241 (1) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s work on an HVAC system was routing maintenance, not covered by Labor Law 241 (6):

The plaintiff allegedly injured his back when he was performing a seasonal “start-up” of a cooling tower on the defendant’s HVAC system, which consisted of transitioning the HVAC system from heating to cooling. The company the defendant was employed by had done this work on a yearly basis for the past 10 years. As part of the work, the plaintiff and his coworker needed to reinstall a circulation pump on the HVAC tower, which had been removed for the winter months. To do so, the plaintiff tied a rope around the circulation pump, which weighed approximately 100 pounds, passed the rope over the top of an overhead beam, and pulled from the other side to raise the pump about three to five feet off the ground so his coworker could install it in the cooling tower. The plaintiff held the pump in the air for about 20 or 25 minutes while his coworker attempted to install it, but felt pain in his back and was unable to hold it any longer. The plaintiff allegedly needed back surgery as a result of the incident. …

Although maintenance work performed in connection with construction, demolition, or excavation work is included under Labor Law § 241(6), “[r]outine maintenance is not within the ambit of Labor Law § 241(6)” … . The Labor Law “does not cover routine maintenance in a nonconstruction, nonrenovation context” … . Byrnes v Nursing Sisters of the Sick Poor, Inc., 2019 NY Slip Op 01736, Second Dept 3-13-19

 

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PROVISION IN MORTGAGE WHICH GAVE BORROWER RIGHT TO DE-ACCELERATE THE DEBT DID NOT PRECLUDE PLAINTIFF BANK FROM ACCELERATING THE DEBT BY FILING A SUMMONS AND COMPLAINT, FORECLOSURE ACTION TIME-BARRED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Miller, determined that a reinstatement provision in a mortgage which gives the borrower the option to de-accelerate the debt did not preclude the plaintiff bank from accelerating the debt, rendering the foreclosure action time-barred:

This appeal presents an issue of first impression for this Court. The plaintiff in this mortgage foreclosure action contends that it lacked the authority to exercise its contractual option to accelerate the maturity of the entire balance of the loan it seeks to recover. The plaintiff argues that it was prevented from validly accelerating the debt by virtue of a reinstatement provision in the subject mortgage which gives the borrower the option, under certain circumstances, to effectively de-accelerate the maturity of the debt. The plaintiff further argues that the statute of limitations did not begin to run until the borrower’s rights under the reinstatement provision in the subject mortgage were extinguished. * * *

… .[T]he defendant demonstrated that the subject mortgage provided the plaintiff with the right to require the defendant to immediately pay “the entire amount then remaining unpaid under the Note and [mortgage]” if the plaintiff first satisfied certain conditions set forth in the mortgage. The defendant’s evidentiary submissions established that the plaintiff complied with those conditions … , and then validly exercised its option to accelerate the entire remaining balance due under the note by filing the summons and complaint in the first foreclosure action in June 2010 … . Accordingly, since this action was not commenced until October 2016, the defendant established, prima facie, that the time in which to commence this action has expired (see CPLR 213[4]). * * *

… [T]the extinguishment of the defendant’s contractual right to de-accelerate the maturity of the debt pursuant to the reinstatement provision in paragraph 19 of the mortgage was not a condition precedent to the plaintiff’s acceleration of the mortgage … . Bank of N.Y. Mellon v Dieudonne, 2019 NY Slip Op 01732, Second Dept 3-13-19

 

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