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LESSOR ENTITLED TO SUMMARY JUDGMENT DECLARING LESSEE’S INSURANCE CARRIER WAS OBLIGATED TO DEFEND LESSOR IN SLIP AND FALL CASE.

The Second Department determined the complaint raised the reasonable possibility that plaintiff Cumberland Farms would be liable in a slip and fall case, even though the subject property had been leased to another. Therefore, Cumberland was entitled to summary judgment declaring the lessee's insurance carrier was obligated to defend Cumberland:

“A duty to defend is triggered by the allegations contained in the underlying complaint” … . “An insurer's duty to defend is broader than the duty to indemnify and arises whenever the allegations of the complaint against the insured, liberally construed, potentially fall within the scope of the risks undertaken by the insurer” … . The duty remains “even though facts outside the four corners of [the] pleadings indicate that the claim may be meritless or not covered” … . Nonetheless, “an insurer can be relieved of its duty to defend if it establishes as a matter of law that there is no possible factual or legal basis on which it might eventually be obligated to indemnify its insured under any policy provision” … .

… [T]he complaint in the underlying action alleged that Cumberland was negligent in its ownership, operation, control, and maintenance of the subject gas station. However, the defendants' submissions in support of their motion included evidence that Cumberland leased the gas station to Noori as a franchisee. Since Cumberland's liability, if any, may hinge on the scope of its obligations under the agreements entered into with Noori that established their franchisor/franchisee relationship, the allegations of the complaint in the underlying action suggest a reasonable possibility of coverage for Cumberland in the underlying action … . Cumberland Farms, Inc. v Tower Group, Inc., 2016 NY Slip Op 02048, 2nd Dept 3-23-16

INSURANCE LAW (LESSOR ENTITLED TO SUMMARY JUDGMENT DECLARING LESSEE'S INSURANCE CARRIER WAS OBLIGATED TO DEFEND LESSOR IN SLIP AND FALL CASE)/DUTY TO DEFEND (INSURANCE LAW, LESSOR ENTITLED TO SUMMARY JUDGMENT DECLARING LESSEE'S INSURANCE CARRIER WAS OBLIGATED TO DEFEND LESSOR IN SLIP AND FALL CASE)

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CRITERIA FOR AN ORDER OF ATTACHMENT EXPLAINED.

The Second Department, affirming Supreme Court, determined the motion for an order of attachment was properly granted. The court explained the analytical criteria:

Attachment is a provisional remedy designed to secure a debt by preliminary levy upon the property of the debtor to conserve it for eventual execution, and the courts have strictly construed the attachment statute in favor of those against whom it may be employed … . In order to be granted an order of attachment under CPLR 6201(3), a “plaintiff must demonstrate that the defendant has concealed or is about to conceal property in one or more of several enumerated ways, and has acted or will act with the intent to defraud creditors or to frustrate the enforcement of a judgment that might be rendered in favor of the plaintiff” … .  In addition to proving fraudulent intent, the plaintiff must show a probability of success on the merits … . Hume v 1 Prospect Park ALF, LLC, 2016 NY Slip Op 02055, 2nd Dept 3-23-16

CIVIL PROCEDURE (CRITERIA FOR AN ORDER OF ATTACHMENT EXPLAINED)/DEBTOR-CREDITOR (CRITERIA FOR AN ORDER OF ATTACHMENT EXPLAINED)/ATTACHMENT (CRITERIA FOR AN ORDER OF ATTACHMENT EXPLAINED)

LETTERS TESTAMENTARY PROPERLY REVOKED WITHOUT A HEARING.

The Second Department determined Surrogate's Court properly revoked letters testamentary without a hearing based upon undisputed proof the administrators were in conflict with each other, improvidently managed the property and failed to abide by the terms of a so-ordered stipulation:

The removal of a fiduciary pursuant to SCPA 711 and 719 is equivalent to a judicial nullification of the testator's choice and may only be decreed when the grounds set forth in the relevant statutes have been clearly established … . The Surrogate may remove a fiduciary without a hearing only where the misconduct is established by undisputed facts or concessions, where the fiduciary's in-court conduct causes such facts to be within the court's knowledge, or where facts warranting an amendment of letters are presented to the court during a related evidentiary proceeding … . Thus, revoking a fiduciary's letters without a hearing pursuant to SCPA 719 will constitute an abuse of discretion where the facts are disputed, where conflicting inferences may be drawn therefrom, or where there are claimed mitigating facts that, if established, would render summary removal an inappropriate remedy … . Matter of Kaufman, 2016 NY Slip Op 01849, 2nd Dept 3-16-16

TRUSTS AND ESTATES (LETTERS TESTAMENTARY PROPERLY REVOKED WITHOUT A HEARING)/LETTERS TESTAMENTARY (PROPERLY REVOKED WITHOUT A HEARING)

PURCHASE PRICE OF GOLF COURSE NOT PROPER VALUATION FOR TAX PURPOSES, PURCHASE PRICE REFLECTED POTENTIAL VALUE OF THE LAND AS DEVELOPED.

The Second Department, reversing (modifying) Supreme Court, determined the recent sales price of a golf course was not the proper benchmark for valuing the property for tax purposes. The $12,000,000 purchase price reflected the potential value of the land as developed:

“[T]he purchase price set in the course of an arm's length transaction of recent vintage, if not explained away as abnormal in any fashion, is evidence of the highest rank' to determine the true value of the property at that time” … . However, improved property must be assessed based on its current condition and use (see RPTL 302[1]…). “Property is assessed for tax purposes according to its condition on the taxable status date, without regard to future potentialities or possibilities and may not be assessed on the basis of some use contemplated in the future”… . Accordingly, in the context of a tax certiorari proceeding involving improved land, a recent sales price that was based upon speculation for future development, rather than continuation of the property's current use, is not a proper indicator of value (see RPTL 302[1]…).

Here, the evidence at trial established that the subject property was purchased for future residential development that had not yet occurred, and the sales price was based upon this residential development potential. Accordingly, the Supreme Court's adoption of the recent sales price as the valuation of the property for assessment purposes was in error … . Matter of Hampshire Recreation, LLC v Board of Assessors, 2016 NY Slip Op 01847, 2nd Dept 3-16-16

REAL PROPERTY TAX LAW (PURCHASE PRICE OF GOLF COURSE NOT PROPER VALUATION FOR TAX PURPOSES, PRICE REFLECTED POTENTIAL VALUE OF LAND AS DEVELOPED)/PROPERTY TAX ASSESSEMENT (PURCHASE PRICE OF GOLF COURSE NOT PROPER VALUATION FOR TAX PURPOSES, PRICE REFLECTED POTENTIAL VALUE OF LAND AS DEVELOPED)

RIGHT TO PARTITION IS NOT ABSOLUTE AND IS SUBJECT TO THE EQUITIES BETWEEN THE PARTIES.

The Second Department determined Supreme Court should not have granted plaintiff summary judgment in a partition action without holding a hearing. The right to partition is not absolute and the remedy is subject to the equities between the parties:

“A person holding and in possession of real property as joint tenant or tenant in common, in which he [or she] has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners (RPAPL 901[1]). The right to partition is not absolute, however, and while a tenant in common has the right to maintain an action for partition pursuant to RPAPL 901, the remedy is always subject to the equities between the parties” … . Here, the Supreme Court implicitly acknowledged the above when it stated in its … order that the parties were directed to appear for a conference “for purposes of finding a date for a trial of the issue of existence of equitable defenses to plaintiff's request for partition.” Guo v Guo, 2016 NY Slip Op 01806, 2nd Dept 3-16-16

REAL PROPERTY (RIGHT TO PARTITION IS NOT ABSOLUTE AND IS SUBJECT TO THE EQUITIES BETWEEN THE PARTIES)/PARTITION (REAL PROPERTY, RIGHT TO PARTITION IS NOT ABSOLUTE AND IS SUBJECT TO THE EQUITIES BETWEEN THE PARTIES)

QUESTIONS OF FACT WHETHER AUTOMOBILE LIFT WAS INTENDED TO BE USED WITHOUT A PROTECTIVE DEVICE AND WHETHER WARNINGS WERE ADEQUATE.

The Second Department determined plaintiff had raised questions of fact whether the automobile lift was defectively designed and whether there were inadequate warnings about its use. When the lift was originally shipped, there was a plastic cover over an opening which exposed the mechanism. The plastic cover was inexplicably missing. Two of plaintiff's fingers were partially amputated when plaintiff put his hand inside the hole. Although the manufacturer demonstrated the product was safe with the cover in place, plaintiff raised questions of fact in opposition, including a question whether the lift was intended to be used without the cover:

Manufacturers may be held strictly liable for injuries caused by their products “because of a mistake in the manufacturing process, because of defective design or because of inadequate warnings regarding use of the product” … . Furthermore, “[a] manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product[s] of which it knew or should have known” … .

Here, the manufacturer made a prima facie showing of entitlement to judgment as a matter of law dismissing so much of the complaint as alleged products liability based upon a design defect. The manufacturer demonstrated that the lift was shipped with a plastic cover over the hole in the lift but the cover had been removed by the time of the accident … . The manufacturer further demonstrated, prima facie, that, if the cover were in place, it would have prevented the plaintiff from placing his hand or other body parts inside the lift while the lift was in operation … . However, in opposition, the plaintiff raised triable issues of fact as to whether the lift was defective at the time it was manufactured and sold, or whether a post-sale modification of the product rendered the otherwise safe product defective, and the modification was the proximate cause of the plaintiff's injuries … . Among other things, the plaintiff raised a triable issue as to whether the lift was intended to be used without the plastic cover in place … .

With respect to the plaintiff's inadequate warning claim, the manufacturer failed to establish, prima facie, that it had adequately warned users of the hazards posed by operating the lift without the cover in place or, more broadly, the dangers of placing a hand or other body part in the hole while operating the lift … . Singh v Gemini Auto Lifts, Inc., 2016 NY Slip Op 01826, 2nd Dept 3-16-16

 

PRODUCTS LIABILITY (QUESTIONS OF FACT WHETHER AUTOMOBILE LIFT WAS INTENDED TO BE USED WITHOUT A PROTECTIVE DEVICE AND WHETHER WARNINGS WERE ADEQUATE)

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HOSPITAL NOT LIABLE FOR INJURIES CAUSED BY MENTALLY ILL PATIENT FOUR DAYS AFTER DISCHARGE.

The Second Department determined defendant hospital (HHC) was entitled to summary judgment in an action stemming from injuries caused by a mentally ill patient after discharge from defendant hospital. The patient, four days after discharge, attacked and stabbed employees of the residential facility where the patient resided. The hospital medical records supported the conclusion the patient did not qualify for involuntary psychiatric observation at the time of his release. The plaintiff's expert's opposing affidavit was conclusory and speculative:

“[D]octors or a governmental subdivision of the State that employs them cannot be held responsible for damages resulting from the actions of a psychiatric patient who has been released when the patient's release is a matter of professional judgment” … . For liability to attach, it must be shown that the decision to release the patient was “something less than a professional medical determination” founded upon careful examination of the patient … . “Evidence of a difference of opinion among experts does not provide an adequate basis for a prima facie case of malpractice” … . * * *

… [T]he plaintiffs submitted an expert affirmation opining that HHC deviated from accepted standards of medical practice and failed to make a careful examination by failing to contact [the patient's] psychiatric providers … and his … caseworker to inquire as to his condition and history of violence before making the determination whether to discharge him, and that those deviations proximately caused the plaintiffs' injuries. However, the expert failed to explain what, if any, information HHC did not already have which those parties could have provided, and which would have been necessary for a careful examination of whether [the patient] continued to meet the legal criteria for involuntary psychiatric observation, care, and treatment. The expert also failed to address the evidence that [the patient] did not meet the criteria for involuntary psychiatric observation, care, and treatment at the time of his discharge … . Stephen v City of New York, 2016 NY Slip Op 01827, 2nd Dept 3-16-16

NEGLIGENCE (MEDICAL MALPRACTICE, HOSPITAL NOT LIABLE FOR INJURIES CAUSED BY MENTALLY ILL PATIENT FOUR DAYS AFTER DISCHARGE)/MEDICAL MALPRACTICE (HOSPITAL NOT LIABLE FOR INJURIES CAUSED BY MENTALLY ILL PATIENT FOUR DAYS AFTER DISCHARGE)

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QUESTION OF FACT WHETHER DEFENDANT DOCTOR CONDUCTED AN ADEQUATE SUICIDE ASSESSMENT.

The Second Department determined plaintiff raised a triable question of fact whether defendant neurologist (Lombard) conducted an adequate suicide assessment of plaintiff's decedent. Plaintiff's decedent committed suicide one week after the assessment:

The evidence submitted in support of [defendants'] motion, including an expert affirmation of a psychiatrist, demonstrated, prima facie, that Lombard did not depart from good and accepted standard of medical practice in his treatment of the decedent … . However the [defendants] failed to establish, prima facie, that none of the alleged departures was a proximate cause of the decedent's death, as the affirmation of the … expert was silent on the issue of proximate cause. As such, in order to defeat the motion, the plaintiff was only required to show the existence of a triable issue of fact as to a departure from good and accepted medical practice … .

The plaintiff raised a triable issue of fact as to whether Lombard departed from good and accepted medical practice by failing to obtain the decedent's records from his prior mental health care providers, including the records from the … emergency room where the decedent had been seen earlier on the day he met with Lombard, and by conducting an inadequate suicide assessment … , such that Lombard's treatment decision was “something less than a professional medical determination” … . “A decision that is without proper medical foundation, that is, one which is not the product of a careful examination, is not to be legally insulated as a professional medical judgment” … . Gallen v County of Rockland, 2016 NY Slip Op 01803, 2nd Dept 3-16-16

NEGLIGENCE (QUESTION OF FACT WHETHER DEFENDANT DOCTOR CONDUCTED AN ADEQUATE SUICIDE ASSESSMENT)/MEDICAL MALPRACTICE (QUESTION OF FACT WHETHER DEFENDANT DOCTOR CONDUCTED AN ADEQUATE SUICIDE ASSESSMENT)/SUICIDE  (MEDICAL MALPRACTICE, QUESTION OF FACT WHETHER DEFENDANT DOCTOR CONDUCTED AN ADEQUATE SUICIDE ASSESSMENT)

DEFENDANT DRIVER ENTITLED TO SUMMARY JUDGMENT UNDER THE EMERGENCY DOCTRINE.

The Second Department determined summary judgment was properly granted to defendant taxi driver in a car-accident case. Plaintiff was in an accident caused by black ice and was standing in the roadway near the cars involved. Defendant taxi driver (Favors) applied his brakes when he saw the cars stopped in the roadway ahead but slid on the black ice and struck one of the vehicles, pinning plaintiff. The court held the emergency doctrine entitled the taxi driver to summary judgment:

Under the emergency doctrine, when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor is not negligent if the actions taken are reasonable and prudent in the emergency context … . While a driver's actions in an emergency situation usually present a triable issue of fact, “summary judgment may be granted when the driver presents sufficient evidence to establish the reasonableness of his or her actions and there is no opposing evidentiary showing sufficient to raise a legitimate question of fact on the issue'” … .

Here, the evidence submitted by the taxi defendants in support of their motion demonstrated, prima facie, that Favors faced an emergency situation. Favors' encounter with three cars that had recently crashed on the Van Wyck and which blocked two lanes of traffic was sudden and unexpected … . He applied the brakes as soon as he saw these cars, but black ice on the highway caused his car to slide. Favors had no reason to suspect that ice would be present on the highway and, therefore, the presence of black ice was also sudden and unexpected … . In light of these facts and the evidence establishing that Favors was not speeding, that the events leading to Favors' collision with Alma's vehicle transpired over a matter of seconds, and that he tried to steer his taxi to avoid the other vehicles, the taxi defendants established, prima facie, that Favors was presented with an emergency situation and that he reacted as a reasonable person would under the circumstances … . Kandel v FN; Taxi; Inc., 2016 NY Slip Op 01809, 2nd Dept 3-16-16

NEGLIGENCE (DEFENDANT DRIVER ENTITLED TO SUMMARY JUDGMENT UNDER THE EMERGENCY DOCTRINE)/EMERGENCY DOCTRINE (DEFENDANT DRIVER ENTITLED TO SUMMARY JUDGMENT UNDER THE EMERGENCY DOCTRINE)

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