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Criteria for Evaluating County Bidding Process Explained

Rockland County sought bids for public bus transportation. The respondent, Brega Transportation Corporation [hereinafter “Brega”], protested the county’s bid specifications as exclusionary and discriminatory and Supreme Court agreed.  The Second Department reversed Supreme Court’s determination that Rockland County’s Invitation to Bid for Transit Operations and Maintenance [hereinafter “RFB”] violated Municipal Law 103.    After explaining the criteria for evaluation of a bidding process, the Second Department wrote:

Where bid specifications are “not facially anticompetitive,” courts apply “ordinary rational basis review” …. A “’spectral appearance of impropriety’ is insufficient proof to disturb a [municipality’s] determination under the competitive bidding statutes” … . Instead, a party challenging a procurement “has the burden to demonstrate actual’ impropriety, unfair dealing or some other violation of statutory requirements”… .  Here, the Supreme Court improperly shifted the burden of proof from Brega to the county. Since Brega made only conclusory assertions and failed to demonstrate that the county’s bid specifications were irrational or exclusionary, the court erred in invalidating the RFB on that basis… .  Brega Transp Corp v Brennan, 2013 NY Slip Op 02707, 2012-03188, Index No 498/12, 2nd Dept, 4-24-13

 

 

Material Misrepresentation Rendered Insurance Policy Void Ab Initio

In determining that a material misrepresentation (i.e., no roofing work would be done) allowed the rescission of an insurance policy, rendering the policy void ab initio, the Second Department wrote:

“To establish the right to rescind an insurance policy, an insurer must show that its insured made a material misrepresentation of fact when he or she secured the policy” … . “A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented” (…see 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'” … . ” [M]aterial misrepresentations . . . if proven, would void the . . . insurance policy ab initio'” … .  Meah v A Aleem Constr, Inc, 2013 NY Slip Op 02727, 2nd Dept, 4-24-13

 

 

Person May Have More that One Residence for Insurance Purposes

The Second Department determined Supreme Court erred by not holding a hearing to determine whether the respondent was an “insured” within the meaning of an automobile insurance policy. Noting that a person can have more than one residence for insurance purposes, the Second Department wrote:

The endorsement defines an insured as, inter alia, any relative of the named insured while a resident of the same household as the named insured. While “[a] person can have more than one residence for insurance coverage purposes, residency in this context generally entails something more than mere temporary or physical presence, and requires some degree of permanence and intention to remain … . The petitioner submitted sufficient evidence with regard to the residence addresses of the respondent to raise a genuine issue regarding whether the respondent was a resident of her brother’s household at the time of the subject accident … .   Matter of A Cent Ins Co v Williams, 2013 NY Slip Op 02744, 2nd Dept, 4-24-13

 

 

Store Not Required to Continuously Mop Up Tracked-In Rain

In affirming the dismissal of a personal injury complaint the Second Department noted that defendant store-owners were “not required to cover all of [their] floors with mats, nor to continuously mop up all moisture resulting from tracked-in rain” … . Valentin v Shoprite of Chester, 2013 NY Slip Op 02739, 2nd Dept, 4-24-13

SLIP AND FALL

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Late Notice of Claim Should Not Have Been Allowed

The Second Department reversed the trial court’s deeming a late notice of claim as timely served nunc pro tunc.  The claim was against the New York Health and Hospitals Corporation (HHC) which is not the same as the City of New York for purposes of a notice of claim.  The Second Department wrote:

The Supreme Court improvidently exercised its discretion in granting the plaintiff’s motion. First, the plaintiff failed to demonstrate that the HHC had actual knowledge of the facts constituting the claim within 90 days after it arose or “within a reasonable time thereafter” (General Municipal Law s 50-e[5]). The fact that a police accident report was prepared by the New York City Police Department did not constitute notice to the HHC of the essential facts constituting the claim … .  * * *Moreover, the plaintiff’s mistake as to the identity of the public corporation against which her claim should be asserted was not excusable. … Finally, the plaintiff failed to demonstrate that her delay did not prejudice the HHC in its defense on the merits. The plaintiff did not serve a notice of claim upon the HHC until eight months after the 90-day period expired and then did not move for two more months to have that late notice of claim deemed timely … .  Platt v New York City Health & Hosps Corp, 2013 NY Slip Op 02733, 2nd Dept, 4-24-13

 

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Late Notice of Claim Allowed In Absence of Reasonable Excuse

In affirming the grant of leave to file a late notice of claim in the absence of a reasonable excuse, the Second Department wrote:

Here, the Fire Island Union Free School District (hereinafter the District) acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose …. Immediately after the petitioner allegedly was injured in an accident at a school in the District, the petitioner told the school’s custodian how the accident occurred, a District employee called emergency medical services, and the petitioner was transported to a hospital. An incident form was prepared by the District which indicated the time and place of the accident and the petitioner’s injuries, and the petitioner’s accident was discussed at a construction meeting attended by the school’s superintendent. Since the District acquired timely knowledge of the essential facts constituting the petitioner’s claim, the petitioner met his initial burden of showing a lack of prejudice …. The District’s conclusory assertions of prejudice, based solely on the petitioner’s delay in serving the notice of claim, were insufficient to rebut the petitioner’s showing … 

While the petitioner’s excuses for his failure to serve a timely notice of claim were not reasonable …, the absence of a reasonable excuse is not fatal to the petition where, as here, there was actual notice and absence of prejudice …. Matter of Rodriquez v Woodhull Sch, 2013 NY Slip Op 02754, 2nd Dept, 4-24-13

 

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City Failed to Affirmatively Prove It Did Not Have Notice of Dangerous Condition

The Second Department determined the city’s failure to submit proof it had not received notice of a defective condition precluded summary judgment in the city’s favor:

As the party moving for summary judgment, in order for the defendant City of New York to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the complaint … on the ground that it had no prior written notice of the alleged defective or dangerous condition (see Administrative Code of the City of New York § 7-201[c]), it was required to submit proof that it did not receive the notice required by the statute … . The City failed to submit any affidavit from any City official or employee demonstrating that a search of the appropriate records had been done and that there was no prior written notice of the alleged dangerous condition that caused the plaintiff’s accident, and there was nothing in the deposition testimony of the three City witnesses that indicated that a search of the City records had been conducted without any success in finding any prior written notices. As such, the City failed to make a prima facie showing that no prior written notice was actually received … .   Martinez v City of New York, 2013 NY Slip Op 02723, 2nd Dept, 4-24-13

 

Slip and Fall Action Based On “Trivial Defect” Dismissed

In affirming the dismissal of a personal injury action in which the plaintiff alleged she fell when she stepped on a one-inch wide and one-half-inch deep hole on the edge of a step, the Second Department wrote:

A property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip … . In determining whether a defect is trivial, the court must examine all of the facts presented, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” … .  *  *  * The plaintiff testified at her deposition that the semi-circular hole was one inch in diameter, half an inch deep, and located at the edge of the step. She used the staircase all the time, and she never had a problem traversing the area prior to the accident. Under the circumstances presented here, the alleged defect did not possess the characteristics of a trap or nuisance, and was trivial and, therefore, not actionable … . Maciaszek v Sloninski, 2013 NY Slip Op 02722, 2nd Dept, 4-24-13

 

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Scientific Expert Opinion Need Not Be Based Upon Textual Authority

In determining an expert’s testimony that an MRI would have revealed any injury caused by an epidural injection was properly admitted, the Second Department explained the criteria for the admission of (scientific) expert testimony:

In determining the admissibility of expert testimony, New York follows the rule of Frye v United States …  “that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has gained general acceptance’ in its specified field” …. The test’s limited purpose is to ascertain whether the expert’s conclusion is based upon accepted scientific principles, rather than simply the expert’s own unsupported beliefs …. When applying the Fryetest to assess the reliability of an expert’s theory of causation, “it is not necessary that the underlying support for the theory . . . consist of cases or studies considering circumstances exactly parallel to those under consideration in the litigation. It is sufficient if a synthesis of various studies or cases reasonably permits the conclusion reached by the . . . expert'” …. “The fact that there [is] no textual authority directly on point to support the [expert’s] opinion is relevant only to the weight to be given the testimony, but does not preclude its admissibility”… .

[Here the] literature established that the expert’s theory had an objective basis and was founded upon far more than theoretical speculation or a scientific hunch … . The lack of textual authority to support the theory pertained to the weight to be given to his testimony, but did not preclude its admissibility ….  LaRose v Corrao, 2013 NY Slip Op 02719, 2nd Dept, 4-24-13

 

 

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Criteria for Professional Negligence Actions Against Accountant Not in Privity with Plaintiff and Against Actuary

The Second Department explained the criteria for professional negligence actions against an accountant, with whom the plaintiffs were not in privity, and against an actuary:

Accountants may be “held liable in certain circumstances for negligent misrepresentations made to parties with whom they have no contractual relationship, but who have relied to their detriment on inaccurate financial statements prepared by the accountant” … . In order to establish such liability, the relationship between the accountant and the party must be found to approach privity, through a showing that the following prerequisites are satisfied: “(1) the accountants must have been aware that the financial reports were to be used for a particular purpose or purposes; (2) in the furtherance of which a known party or parties was intended to rely; and (3) there must have been some conduct on the part of the accountants linking them to that party or parties, which evinces the accountants’ understanding of that party or parties’ reliance” … . *  *  *

Because an actuary is not required to be licensed, is not regulated, and is not subject to a State-created disciplinary system, an actuary is not a “professional” for purposes of a malpractice cause of action … . Nevertheless, an actuary, possessing special knowledge, can be held liable for the negligent performance of its services …. [T]he complaint sufficiently alleges a cause of action against [the actuary] on a theory of common-law negligence ….  Health Acquisition Corp v Program Risk Mgt, Inc, 2013 NY Slip Op 02714, 2nd Dept, 4-24-13

 

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