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Misrepresentation that Dwelling Was “Owner-Occupied” Justified Rescission of the Fire Insurance Policy

The Second Department determined the representation in a fire insurance policy that the dwelling was “owner-occupied” was a material misrepresentation which allowed rescission of the policy. Even if the property owner was unaware of the misrepresentation at the outset, he ratified the contract by permitting it to be renewed:

“[T]o establish its right to rescind an insurance policy, an insurer must demonstrate that the insured made a material misrepresentation” … . “A representation is a statement as to past or present fact, made to the insurer by, or by the authority of, the applicant for insurance or the prospective insured, at or before the making of the insurance contract as an inducement to the making thereof” (Insurance Law § 3105[a]). “A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented” (…Insurance Law § 3105[b]). “To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, that show that it would not have issued the same policy if the correct information had been disclosed in the application” … .

Here, the defendant demonstrated, prima facie, that the application for insurance contained a misrepresentation regarding whether the premises would be owner-occupied and that this misrepresentation was material … . Contrary to the plaintiff’s contention, the defendant established that the material misrepresentation is attributable to him since, even if the application for insurance had been submitted without his actual or apparent authority, he ratified the representations contained in the application by accepting the policy for owner-occupied premises and permitting it to be renewed for years thereafter on the same terms … . Morales v Castlepoint Ins Co, 2015 NY Slip Op 01618, 2nd Dept 2-25-15

 

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Circumstances Under Which NYC Residential Property-Owner May Be Liable for a Sidewalk Slip and Fall Based Upon Efforts to Remove Snow Explained (No Liability Here)—No Liability for Incomplete Snow Removal

In finding that the property-owner (Gonzales) was not liable for an ice/snow slip and fall on the sidewalk abutting the partially owner-occupied three-family residence, the Second Department explained the circumstances under which such a property-owner’s snow-removal efforts might lead to liability, noting that there would be no liability for incomplete snow removal:

The plaintiff allegedly slipped and fell on a sidewalk abutting a three-family house owned by the defendant Maria Fe Gonzales. Since the subject premises were partially owner-occupied and used exclusively for residential purposes, Gonzales was exempt from liability imposed pursuant to Administrative Code of the City of New York § 7-210(b) for negligent failure to remove snow and ice from the sidewalk … . Thus, Gonzales may be held liable for a hazardous snow and ice condition on the sidewalk only if she undertook snow and ice removal efforts that made the naturally occurring condition more hazardous or caused the defect to occur because of a special use … . Unless one of these factors is present, Gonzales, an abutting owner of a three-family residence, may not be held liable for the removal of snow and ice in an incomplete manner … . Mullaney v City of New York, 2015 NY Slip Op 01519, 2nd Dept 2-25-15

 

Unambiguous Release Standing Alone Warrants Summary Judgment

The Second Department explained that an unambiguous release allows a judgment as a matter of law without resort to extrinsic evidence:

“[A]bsent fraudulent inducement or concealment, misrepresentation, mutual mistake or duress, a valid release that is clear and unambiguous on its face constitutes a complete bar to an action on a claim that is the subject of the release” … . “Whether the language set forth in a release unambiguously bars a particular claim is a question of law appropriately determined on a motion for summary judgment based upon the entire release and without reference to extrinsic evidence” … . Beys Specialty Inc v Euro Constr Servs Inc, 2015 NY Slip Op 01598, 2nd Dept 2-25-15

 

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School Failed to Demonstrate Assault on Student Was Unforeseeable—Summary Judgment Properly Denied

The Second Department determined the defendant school district was not entitled to summary judgment because it failed to demonstrate the alleged assault on another student was unforeseeable:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . In determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, the third-party acts could reasonably have been anticipated … .

Here, in support of that branch of its motion which was for summary judgment dismissing the causes of action alleging negligent supervision, the District failed to establish, prima facie, that the alleged assault was an unforeseeable act or that it had no actual or constructive notice of prior conduct similar to the subject incident … . Cruz v Brentwood Union Free Sch Dist, 2015 NY Slip Op 01604, 2nd Dept 2-25-15

 

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“Independent Contractor Rule”

The Second Department noted the general rule that one who hires an independent contractor will not be liable for the contractor’s negligence:

“As a general rule, one who hires an independent contractor may not be held liable for the independent contractor’s negligent acts” … . Here, the defendant established, prima facie, that the alleged negligence was committed solely by an independent contractor and that, by reason of the above-described “independent contractor rule,” it could not be held liable … Braun v Star Community Publ Group LLC, 2015 NY Slip Op 01599, 2nd Dept 2-25-15

 

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Four-Month Statute of Limitations for Challenging Termination of a Firefighter Runs from the Effective Date of Termination, Not the Date of Notification

The Second Department noted that the four-month statute of limitations for challenging the termination of a probationary firefighter ran from the effective date of the termination, not the date of notification of the termination:

“[A] proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner” (CPLR 217[1]). Where, as here, a governmental employee is not entitled to a hearing in connection with his or her discharge, the limitations period for commencing a CPLR article 78 proceeding to challenge that discharge “runs from the notice of discharge or the effective date of discharge, if later” … .

Here, although the petitioner was notified of the termination of his probationary employment by letter dated September 13, 2013, and was told not to report for further shifts, the notice set the effective termination date of the petitioner’s probationary employment as September 23, 2013. Accordingly, … the statute of limitations began to run on September 23, 2013. Matter of Bruno v Greenville Fire Dist, 2015 NY Slip Op 01630, 2nd Dept 2-25-15

 

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Lack of Standing Defense Waived If Not Raised In Answer or Pre-Answer Motion to Dismiss—Lack of Standing Is Not a Jurisdictional Defect–Sua Sponte Dismissal on that Ground Improper

The Second Department reversed Supreme Court’s sua sponte dismissal of a complaint seeking foreclosure and sale on the ground plaintiff lacked standing.  The defendants did not answer the complaint or make a pre-answer motion to dismiss, so the lack of standing defense was waived:

A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal … . Here, the Supreme Court was not presented with extraordinary circumstances warranting the sua sponte dismissal of the complaint and cancellation of the notice of pendency. Since the defendants did not answer the complaint, and did not make a pre-answer motion to dismiss the complaint, they waived the defense of lack of standing … . Furthermore, a party’s lack of standing does not constitute a jurisdictional defect and does not warrant a sua sponte dismissal of the complaint by the court … . HSBC Bank USA NA v Simmons, 2015 NY Slip Op 01609, 2nd Dept 2-25-15

 

Plaintiff Need Not Submit Any Evidence In Response to a Motion to Dismiss Alleging Failure to State a Cause of Action, Even If Defendant Does

The Second Department explained how a motion to dismiss for failure to state a cause of action (CPLR 3211(a)(7)) should be handled when evidence is submitted in support of the motion.  The court noted that the plaintiff need not submit any evidence and can stand on the pleadings alone:

“A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211 (a) (7)” … . “If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one'” … . “Yet, affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that the plaintiff has no cause of action” … . The plaintiff “may not be penalized for failure to make an evidentiary showing in support of a complaint that states a claim on its face” … . The plaintiff may stand on his or her pleading alone to state all the necessary elements of a cognizable cause of action, and, unless the motion to dismiss is converted by the court to a motion for summary judgment, the plaintiff will not be penalized because he or she has not made an evidentiary showing in support of the complaint … . In light of these standards, it is clear that the defendant’s motion should have been denied. The complaint stated a cause of action, and the defendant’s submissions did not “conclusively establish that the plaintiff has no cause of action” … . Clarke v Laidlaw Tr Inc, 2015 NY Slip Op 01602, 2nd Dept 2-25-15

 

Motion for Discontinuance Without Prejudice Should Not Have Been Granted Because It Allowed Movant to Escape Potentially Adverse Determinations

The Second Department determined Supreme Court should not have granted plaintiffs’ motion for a discontinuance without prejudice, a motion made in response to defendant’s (Parkway’s) motion to dismiss for failure to respond to Parkway’s 90-day notice:

“A motion for leave to discontinue an action without prejudice should be granted unless there are reasons which would justify its denial” … . Such a determination “rests within the sound discretion of the court,” and the motion should be granted “[i]n the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences” …, including an adverse determination of the court …, or the consequences of a potentially adverse determination … .

Here, the plaintiffs cross-moved, inter alia, for leave to discontinue the action without prejudice in response to Parkway’s separate motion pursuant to CPLR 3216 to dismiss the complaint on the ground that the plaintiffs had failed to timely respond to its 90-day notice. The Supreme Court’s determination to grant that branch of the plaintiffs’ cross motion which was for leave to discontinue the action without prejudice allowed the plaintiffs to avoid the potentially adverse consequences of having failed to timely respond to Parkway’s 90-day notice (see CPLR 3216), and an adverse determination of Parkway’s motion for summary judgment. Baez v Parkway Mobile Homes Inc, 2015 NY Slip Op 01596, 2nd Dept 2-25-15

 

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Four-Month Statute of Limitations for Challenging Department of Environmental Conservation’s (DEC’s) and Town’s Ruling on Proper Remedial Measures for a Hazardous Waste Site Was Restarted When a Different Factual Presentation Was Invited

The Second Department reversed Supreme Court and determined that a recent reconsideration of the proper remedial measures for a hazardous waste site on petitioner’s property restarted the four-month statute of limitations for challenging the Department of Environmental Conservation’s (DEC’s)/Town’s ruling, even though the conclusion reached after reconsideration was the same as was reached in 1995:

“[A] proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner (CPLR 217[1]). An administrative determination becomes final and binding’ when (1) the administrative agency reached a definitive position on the issue that inflicts actual, concrete injury; and (2) the injury inflicted may not be significantly ameliorated by further administrative action or by steps available to the complaining party'” … .

In general, a request for discretionary reconsideration does not serve to extend the statute of limitations or render an otherwise final determination nonfinal … . This is because “[a] motion to reconsider generally seeks the same relief, and advances factual and legal issues that were previously litigated at the administrative level” … .

However, where “the agency conducts a fresh and complete examination of the matter based on newly presented evidence,” an aggrieved party may seek review in a CPLR article 78 proceeding commenced within four months of the new determination … .

Here, a different factual presentation was invited … by the DEC, and conducted by the Town. Matter of Riverso v New York State Dept of Envtl Conservation, 2015 NY Slip Op 01644, 2nd Dept 2-25-15

 

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