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Proper Way to Handle an Inconsistent Verdict Explained

The Second Department explained the proper procedure when a verdict is inconsistent (either have the jury reconsider the verdict or order a new trial):

“When a jury’s verdict is internally inconsistent, the trial court must direct either reconsideration by the jury or a new trial” … . Here, the jury’s verdict was internally inconsistent, as the jury attributed 10% of the fault for the plaintiff’s accident to both the plaintiff and [one of the two defendants], despite having found that their negligence was not a substantial factor in causing the accident … . The Supreme Court should have resolved the substantial juror confusion, as demonstrated by the internally inconsistent verdict, by either resubmitting the case to the jury for reconsideration or directing a new trial on the issue of liability (see CPLR 4111[c]…). Kumar v PI Assoc LLC, 2015 NY Slip Op 00849, 2nd Dept 2-4-15

 

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Requirements for Prima Facie Case Based Upon Circumstantial Evidence Explained (Re: Existence of Hazardous Condition)

The Second Department, reversing Supreme Court, determined the defendants were not entitled to summary judgment in a slip and fall case.  The court explained the plaintiff's standard of proof when the existence of a hazardous condition (here a slippery substance on stairs) is demonstrated by circumstantial evidence.  The court noted that a defendant's self-serving affidavit (claiming that nothing was spilled on the stairs) was not sufficient to warrant summary judgment in defendant's favor:

“To prove a prima facie case of negligence in a case based on a hazardous condition, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition” … . “To establish a prima facie case of negligence based wholly on circumstantial evidence, [i]t is enough that [the plaintiff] shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred'” … . “The law does not require that plaintiff's proof positively exclude every other possible cause of the accident but defendant's negligence” … . “Rather, [the plaintiff's] proof must render those other causes sufficiently remote' or technical' to enable the jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence” … . “A plaintiff need only prove that it was more likely or more reasonable that the alleged injury was caused by the defendant's negligence than by some other agency” … . Quiroz v 176 N Main LLC, 2015 NY Slip Op 00863, 2nd Dept 2-4-15


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Criteria for Determining the Clarity or Ambiguity of the Terms of a Contract Explained

In affirming the verdict after a bench trial (finding the relevant terms of a contract unambiguous), the Second Department explained its review powers and outlined the analytical criteria re: the determination of the clarity or ambiguity of the terms of a contract:

“In reviewing a determination rendered after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing the witnesses and hearing the testimony” … . “The construction and interpretation of an unambiguous written contract is an issue of law within the province of the court, as is the inquiry of whether the writing is ambiguous in the first instance. If the language is free from ambiguity, its meaning may be determined as a matter of law on the basis of the writing alone without resort to extrinsic evidence” … . “When interpreting a contract, the construction arrived at should give fair meaning to all of the language employed by the parties, to reach a practical interpretation of the parties' expressions so that their reasonable expectations will be realized” … . “The terms of a contract are clear and unambiguous when the language used has a definite and precise meaning, unattended by danger of misconception in the purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion” … . Palumbo Group v Poughkeepsie City Sch Dist, 2015 NY Slip Op 00857, 2nd Dept 2-4-15


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Proof Presented to Grand Jury Was Sufficient to Support Allegation Defendant “Caused” the Death of a Police Officer Killed by Another Driver While Responding to the Accident In Which Defendant Was Involved

The Second Department determined the evidence before the grand jury was sufficient to support the charge that defendant, who had been involved in a vehicle accident and was allegedly under the influence of alcohol, “caused” the death of a police officer who was struck by a car at the accident scene.  The court explained the nature of the proof required to support the charge that the defendant “caused” the death of another:

“Courts assessing the sufficiency of the evidence before a grand jury must evaluate whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted—and deferring all questions as to the weight or quality of the evidence—would warrant conviction'” … . ” Legally sufficient evidence' means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof” (CPL 70.10[1]).

In order to be held criminally liable for a person's death, a defendant must have engaged in conduct that “actually contribute[d]” to that person's death … . The defendant's actions need not be the sole cause of death and, indeed, the defendant need not have committed the fatal act to be liable … . The test is, instead, whether it may be reasonably foreseen that the defendant's actions would result in the victim's death; if so, the defendant's actions may, under the criminal law, constitute a “sufficiently direct cause” of the death to warrant criminal liability for it … .

Here, viewing the evidence before the grand jury in the light most favorable to the prosecution …, we find that there was legally sufficient proof before the grand jury that the defendant's actions “caused” the officer's death. Specifically, it was reasonably foreseeable that the defendant's conduct would cause collisions and that the police would respond and be required to be in the roadway, where they would be exposed to the potentially lethal danger presented by fast-moving traffic … . People v Ryan, 2015 NY Slip Op 00915, 2nd Dept 2-4-15


Judicial Approval of a Settlement with Third Parties Was Properly Granted After the Expiration of the Statutory Period (Nunc Pro Tunc)—Delay In Seeking Approval Was Not Due to Injured Worker’s Fault or Neglect/Workers’ Compensation Carrier’s Consent to a Settlement Is Required Even Where the Settlement Is Greater than the Amount of the Benefits Received/Absent the Consent of the Carrier, Judicial Approval Is Required

The Second Department determined judicial approval of a settlement with third parties after the statutory period had passed was properly granted nunc pro tunc.  The injured worker received about $189,000 in workers' compensation benefits and eventually settled with third parties for $2,000,000. The workers' compensation carrier sued to collect on its lien.  The court noted that, despite the language of Workers' Compensation Law 29(5), the workers' compensation carrier's consent to a settlement is required even if the amount of the settlement is more than the amount of the benefits. In the absence of such consent (absent here), judicial approval is required (properly granted here):

Workers Compensation Law § 29(5) provides, in pertinent part:

“A compromise of any such cause of action by the employee or his dependents at an amount less than the compensation provided for by this chapter shall be made only with the written approval of . . . the person, association, corporation, or insurance carrier liable to pay the same. However, written approval . . . need not be obtained if the employee or his dependents obtain a compromise order from a justice of the court in which the third-party action was pending. …

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“If the third-party action is on trial at the time the offer of settlement which is acceptable to the plaintiff, is made and either such written approval or order as provided in this subdivision is required, the action may be marked settled subject to the securing of such written approval or such order. If such written approval or such order is not subsequently secured within three months the action shall be restored to the head of the trial day calendar” (emphasis added).

Section 29(5) was enacted to protect an insurance carrier from paying a deficiency between the settlement and the amount paid to the injured party … . As originally enacted, the provision required the consent of the insurance carrier. However, “in many instances, the carrier arbitrarily refused to give its consent to a proposed settlement regardless of how fair or generous the proposal might have been,” prompting the Legislature to amend the provision to provide that consent need not be obtained where there is judicial approval of the settlement … .

Although there is case law which indicates that approval pursuant to Workers' Compensation Law § 29(5) is not required if the amount of Workers' Compensation benefits received is less than the amount of the settlement …, the Court of Appeals has held that even where the settlement constitutes 100% of the policy limits, approval pursuant to Workers' Compensation Law § 29(5) is required in order for the claimant to continue to receive Workers' Compensation benefits in the future …. Any settlement is potentially less than the benefits provided by the Workers' Compensation Law (see 1-7 New York Workers' Compensation Handbook § 7.01[5] [2014]), especially where, as here, the claimant is seeking a permanent partial disability classification from the Workers' Compensation Board, which could mean that he would be entitled to benefits indefinitely.

“[A] judicial order may be obtained nunc pro tunc approving a previously agreed-upon settlement, even where the application for approval is sought more than three months after the date of settlement, provided that the employee can establish that (1) the amount of the settlement is reasonable, (2) the delay in applying for a judicial order of approval was not caused by the employee's fault or neglect, and (3) the insurance carrier was not prejudiced by the delay” … . Fidelity & Guar Ins Co v Digiacomo, 2015 NY Slip OP 00842, 2nd Dept 2-2-15


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Suppression Should Not Have Been Granted Because the Officer Who Made the Vehicle Stop Had Died/Hearsay Evidence from a Police Officer Who Arrived at the Scene After the Stop and Spoke to the Deceased Officer Was Admissible at the Suppression Hearing

The Second Department determined the hearsay testimony of a police officer (Schmidt) who learned of the reason for the stop of defendant’s vehicle from another officer (Olivieri) was admissible in the suppression hearing.  Supreme Court had suppressed the evidence stemming from the stop because the officer who made the stop (Olivieri) had died and could not therefore be “confronted” at the hearing:

Pursuant to statute, “hearsay evidence is admissible to establish any material fact” at a pretrial suppression hearing (CPL 710.60[4]…). Thus, “[a] police witness at a suppression hearing may establish probable cause by personal knowledge, as well as by information supplied by fellow officers” … . Where the knowledge of the imparting officer is based on his or her first-hand observations, the People are not required to produce that officer at the suppression hearing … .

Here, Schmidt’s testimony established that the stop of the defendant’s vehicle was lawful, based upon the first-hand observations of Olivieri, which were imparted to Schmidt … . Probable cause for the defendant’s arrest also was established through Olivieri’s observations, as imparted to Schmidt, together with Schmidt’s own personal observations … .

Contrary to the Supreme Court’s conclusion, the decision of the United States Supreme Court in Crawford v Washington (541 US 36) does not require a different result. In Crawford, the Supreme Court considered whether particular evidence admitted at trial violated the defendant’s right to confrontation under the Sixth Amendment of the United States Constitution (see id. at 38…), and did not address the admission of hearsay evidence in pretrial suppression hearings … . People v Mitchell, 2015 NY Slip Op 00786, 2nd Dept 1-28-15

 

Right-to-Intervene Criteria Explained (Criteria Not Met Here)

The Second Department described the criteria for intervening in an action (criteria not met here):

Upon a timely motion, a person is permitted to intervene in an action as of right, “1. when a statute of the state confers an absolute right to intervene; or 2. when the representation of the person’s interest by the parties is or may be inadequate and the person is or may be bound by the judgment; or 3. when the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment” (CPLR 1012[a]). Additionally, upon a timely motion, the court, in its discretion, may permit a person to intervene, “when a statute of the state confers a right to intervene . . . or when the person’s claim or defense and the main action have a common question of law or fact” (CPLR 1013). In exercising its discretion, the court shall consider whether the intervention will unduly delay the determination of the action or prejudice the substantial rights of any party (see id.).  Wells Fargo Bank NA v Mazzara, 2015 NY Slip Op 00750, 2nd Dept 1-28-15

 

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Criteria for Denial of Coverage Based Upon Noncooperation of the Insured Party Explained/Default Judgment In Favor of Defendant American States Re: Other Defendants Did Not Preclude, Under the Doctrine of Collateral Estoppel, Plaintiff’s Direct Action Against American States

The Second Department determined a question of fact existed about whether the “noncooperation-of-an-insured-party” rationale for denying coverage applied.  The court noted that a prior default judgment in favor of defendant American States re: other defendants did not preclude, under the doctrine of collateral estoppel, plaintiff’s direct action against American States:

American States prevailed in that declaratory judgment action against the defendants in the underlying action which determined that American States is not obligated to defend and indemnify the defendants in the underlying action. However, those orders were entered upon the underlying defendants’ default, and thus, did not collaterally estop the plaintiff from bringing the instant, direct action against American States pursuant to Insurance Law § 3420(a)(2) … . …

The noncooperation of an insured party in the defense of an action is a ground upon which an insurer may deny coverage, and may be asserted by the insurer as a defense in an action on a judgment by an injured party pursuant to Insurance Law § 3420(a)(2) … . In order to establish a proper disclaimer based on its insured’s alleged noncooperation, an insurer is required to demonstrate that “it acted diligently in seeking to bring about its insured’s cooperation, that its efforts were reasonably calculated to obtain its insured’s cooperation, and that the attitude of its insured, after the cooperation of its insured was sought, was one of wilful [sic] and avowed obstruction'” … . The insurer has a “heavy” burden of proving lack of cooperation … . Here, the submissions of the American States defendants were insufficient to sustain their prima facie burden on the cross motion for summary judgment, with respect to American States. West St Props LLC v American States Ins Co, 2015 NY Slip Op 00751, 2nd Dept 1-28-15

 

Access to Financial Support from Family Properly Considered In Calculating Father’s Child Support and Child Care Obligations

The Second Department explained that Family Court properly imputed income to the father based upon access to financial support from his family:

Pursuant to Family Court Act § 413(1)(b)(5)(iv), the Family Court is entitled to impute income to a parent based upon various factors, including “money, goods, or services provided by relatives and friends” (Family Ct Act § 413[1][b][5][iv][D]). Here, the Family Court properly determined that the father has access to, and receives, financial support from his family. Considering, among other things, the father’s employment history, his monthly expenses, and the resources provided to him by his own father over a number of years, the Family Court providently exercised its discretion in imputing income to the father in the sum of $30,000 per year for the purpose of calculating his child support and child care obligations … . Matter of Recco v Turbak, 2015 NY Slip Op 00770, 2nd Dept 1-28-15

 

Action Should Not Have Been Dismissed Pursuant to CPLR 3211 (a)(4)—Action Was Not “Sufficiently Similar” to Pending Action

The Second Department determined Supreme Court should not have dismissed an action pursuant to CPLR 3211 (a)(4) because the dismissed action was not “sufficiently similar” to a pending action.  The initial personal injury action stemmed from alleged Labor Law violations. The second action, alleging a fraudulent conveyance, stemmed from the defendant’s transfer of the property where plaintiff was injured:

Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed on the ground that there is another action pending between the same parties for the same cause of action … . A court may dismiss an action pursuant to CPLR 3211(a)(4) where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same … . It is not necessary that “the precise legal theories presented in the first action also be presented in the second action” … . The critical element is whether both suits arise out of the same subject matter or series of alleged wrongs … .

Here, the personal injury action and the instant action do not arise out of the same subject matter or series of alleged wrongs, and do not seek the same or substantially similar relief. The personal injury action arises from the defendants’ alleged breach of Labor Law § 200 and the common-law duty to provide a safe workplace, and their alleged violations of the safety requirements imposed on property owners by Labor Law §§ 240(1) and 241(6). The sole relief sought in the personal injury action is a money judgment for damages. The instant action arises from the post-accident transfer …, and the plaintiff seeks various relief authorized by Debtor and Creditor Law article 10, including setting aside the alleged fraudulent conveyance. Contrary to the defendants’ contention, the claims asserted in both actions are not “sufficiently similar” to warrant dismissal simply because the plaintiff raised an argument pertaining to constructive fraud as a basis for the imposition of liability … for violation of Labor Law § 240(1) in the personal injury action. Jadron v 10 Leonard St LLC, 2015 NY Slip Op 00730, 2nd Dept 1-28-15

 

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