Plaintiff slipped and fell on ice in defendant bank’s parking lot. Before commencement of his action, plaintiff sought an order for pre-action disclosure and preservation of evidence. Defendant opposed the motion but represented to the motion judge that defendant had voluntarily preserved evidence including accident reports, photographs, and surveillance videotapes. Defendant also consented to an order of preservation of those items. During discovery after the action was commenced, plaintiff requested surveillance films related to the subject accident, and defendant responded that those materials had not been preserved. (The dissenting opinion reveals that defendant’s business practice was to automatically overwrite the video footage after 90 days, and plaintiff’s motion and the resulting consent order were made more than a year after the accident).
The motion court granted plaintiff’s motion to strike defendant’s answer on the prong of CPLR 3126 that defendant had violated the court’s order of preservation. The Fourth Department modified the sanction, holding under the alternate prong of CPLR 3126 that defendant’s failure to disclose was willful, but held that the motion court abused its discretion in striking defendant’s answer and affirmative defenses. The Fourth Department instead gave plaintiff an adverse inference charge at trial with respect to the unavailable security surveillance footage.
The Hon. John M. Curran in dissent argued that willful failure to disclose was not raised below and further that the Fourth Department has excused alleged spoliation of evidence in other circumstances when the evidence was destroyed in good faith before litigation was pending, pursuant to normal business practices, and therefore could not have preserved it. Justice Curran felt that defendant, however, had negligently destroyed the video because defendant was on notice of plaintiff’s claim before the tape was overwritten. Justice Curran would have precluded defendant from introducing at trial evidence of the video’s content as part of its direct case.
Sarach v. M&T Bank Corp. 2016 NY Slip Op. 04820 (4th Dep’t June 17, 2016)
In Friends of Thayer Lake LLC v. Brown (May 10, 2016) http://bit.ly/1U3pzcf, plaintiffs own land abutting the state-owned William C. Whitney Wilderness Area in the Adirondacks. The Wilderness Area encompasses in pertinent part a network of lakes, ponds, streams and canoe carries known as the Lila Traverse which permits canoe travel between Little Tupper Lake and Lake Lila. More specifically, the Lila Traverse includes the Mud Pond Waterway, which is a two-mile-long system of ponds and streams that crosses plaintiffs’ property. The State Department of Environmental Conservation created an eight-tenth-of-a-mile canoe carry to avoid the Mud Pond Waterway, but defendants maintain that the Mud Pond Waterway is “navigable in fact” and therefore a public highway freely accessible by the boating public.
[Per a N.Y. Attorney General press release dated February 24, 2011 (http://on.ny.gov/1ycl9cq), plaintiffs initially sued defendant Phil Brown for trespass for paddling the waterway in 2009. The State of New York moved to intervene and counterclaimed against plaintiffs to require plaintiffs to remove intimidating signs, cameras, and steel cables that plaintiffs had placed across the waterway to prevent kayakers, canoeists, and other boaters from traveling across their property.]
The parties cross-moved for summary judgment seeking a ruling as a matter of law on whether the Mud Pond Waterway is navigable in fact and therefore open to public use. The parties did not want a trial and jointly requested that Supreme Court rule as a matter of law on their respective motions, contending that the material facts were fully and accurately presented in the record and not significantly in dispute. Both Supreme Court and the Third Department granted the parties’ request to resolve the dispute as a matter of law, stating that the parties in a civil dispute may chart their own course in litigation and may agree on the factual basis for the resolution of their controversy.
But the Court of Appeals ruled otherwise stating that the parties’ freedom to chart their own course in litigation must yield to certain practicalities, to wit, unresolved questions of fact: a motion for summary judgment requires the movant to demonstrate the absence of any material issues of facts. Noting the absence of a stipulated statement of facts and an voluminous, detailed and expansive record (which included documents, maps, photographs, letters, articles, guidebooks, video footage, diaries, testimony, and affidavits), the Court of Appeals found conflicting or inconclusive evidence regarding many material facts including the waterway’s historical and prospective commercial utility, its historical accessibility to the public, the relative ease of passage by canoe, and the volume of historical and prospective travel on it. Because of these questions of fact, the Court of Appeals denied summary judgment to all parties, expressly requiring a trier of fact to weigh the competing evidence, assess the credibility of witnesses, and reach the ultimate conclusion of navigability in fact.
Facts missing from a complaint that were supplied by affidavit in opposition to defendant carrier’s motion to dismiss cured the defect and should have been considered before dismissing the complaint.
Plaintiff medical provider sued defendant no-fault carrier for treatments plaintiff had rendered to injured auto-accident victims, but the complaint failed to identify the patients treated or the policies under which plaintiff submitted claims for payment. Defendant moved to dismiss the complaint for failure to state a cause of action under CPLR 3211(a)(7). In opposition, plaintiff submitted an affidavit of its principal which supplied the missing information. The First Department reversed the complaint’s dismissal and reinstated the complaint.
The First Department acknowledged that CPLR 3013 requires that a complaint be sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions that form the basis of the complaint and the material elements of each cause of action. The court further acknowledged the black-letter law that the factual allegations of the complaint are accepted as true and are afforded every possible favorable inference. But it held, based on prior case law, that a court may freely consider plaintiff’s affidavits to remedy defects in the complaint. The test is whether plaintiff has a cause of action, not whether plaintiff has stated one. When such affidavits are considered, dismissal is appropriate only where a material fact claimed by the pleader is not a fact at all and there is no significant dispute regarding that fact.
The First Department further held that plaintiff sufficiently alleged that plaintiff was the assignee of claims and that a question of fact existed as to whether plaintiff failed to appear for examinations under oath, which was a condition precedent to coverage.
High Definition MRI, P.C. v Travelers Cos., Inc., 2016 NY Slip Op 02027, 1st Dept 3-22-16
Plaintiff insured owned a fuel oil terminal on the East River in Port Morris, Bronx County. Defendant insurer issued a commercial property insurance policy to plaintiff which covered in pertinent part the Port Morris facility up to a policy limit of $2,500,000.
The policy provided that “2% of the total insurable values at risk per location subject to a minimum of $250,000” would be deducted from each adjusted claim arising out a flood “occurrence”. At issue in the case was the interpretation of the phrase “total insurable values at risk per location”.
The total value for the Port Morris facility was listed on the policy’s “Schedule of Locations Endorsement” as being $124,701,000. A note at the bottom of that endorsement stated that the values listed on the endorsement were for premium purposes only. A separate endorsement confirmed that plaintiff had provided the values listed on the “Schedule of Locations Endorsement”.
In October 2012, flooding from Superstorm Sandy damaged the Port Morris Terminal and plaintiff submitted a claim to defendant for $2,284.239.95. Defendant denied plaintiff’s claim as being less than the amount of the deductible of $2,494,020.
Plaintiff moved for summary judgment contending that the deductible was $250,000, being two percent of the $2.5 million dollar policy limit. Defendant opposed plaintiff’s motion and cross-moved for summary judgment dismissing the complaint, contending that the deductible was $2,494,020, i.e., 2% of the $124,701,000 valuation for the Port Morris terminal listed on the Schedule of Locations Endorsement. Under defendant’s calculation, there was only $5,980 of coverage between the amount of the deductible and the policy limit for the Port Morris facility. The Second Department granted defendant’s motion.
Applying standard rules of contract construction, the Second Department stated that it agreed with the parties that the deductible clause was unambiguous and held that defendant’s interpretation of the phrase ‘”total insurable value” was the only reasonable one. The Second Department stated that to an average insured , “risk” in the phrase “total insurable values at risk per location” means “risk of loss”. In deciding how much coverage to buy, the average insured is concerned with the value of what is at risk and takes into account the likelihood of significant loss and the cost of insurance. The amount of insurance that the average insured chooses to buy is not the same as the “total insurable values at risk”, so the average insured could not reasonably conclude that the “total insurable values at risk” referred to a limit of coverage that was less than the total amount at risk. Therefore, the only reasonable expectation as to the meaning of the phrase “total insurable values at risk” was the insured’s own risk of loss and damage.
The Second Department held that plaintiff’s interpretation was unreasonable, because it rendered the $250,000 minimum deductible superfluous, and likewise rejected plaintiff’s contention that the note on the Schedule (which stated that the listed values were for “premium purposes only”) precluded those values from being used as “total insurable values”. The Second Department stated that the reasonable interpretation of that note was that the values were being used only to determine the premiums, not to set policy limits. Therefore, the listed values could be used to calculate the applicable flood deductible (the deductible being relevant in determining the amount of the premium).
Castle Oil Corp. v ACE Am. Ins. Co., 2016 NY Slip Op 01632, 2nd Dept March 9, 2016
Defendant landscaper and its insurer were liable as a matter of law under Nav. Law article 12 for oil spill caused by Landscaper’s severing fuel oil lines to homeowners’ house.
In the plaintiff-homeowners’ action for clean-up costs due to a fuel-oil spill, the Second Department affirmed summary judgment to plaintiff homeowners against defendants Landscaper and its Insurer. The Landscaper’s employee had severed an underground fuel line to plaintiffs’ home while repairing a sprinkler system and shortly thereafter, plaintiffs began experiencing problems with their home heating system. Plaintiffs called defendant Oil Company, which sent a technician who inspected the heating system and found no problem. The Oil Company thereafter delivered 700 gallons of fuel oil to plaintiffs’ home which discharged into the ground.
The Second Department affirmed summary judgment to plaintiffs against the Landscaper and its Insurer under Nav. Law §181(1), which mandates strict liability for clean-up costs against a person who has “discharged petroleum”. Under Navigation Law article 12, “discharge” includes “any intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of petroleum”, and plaintiff was entitled to sue not only the discharger but also the discharger’s insurer.
The Landscaper admitted that its employee severed the line, and the Insurer tacitly conceded insurance coverage for the incident. Defendants failed to create an issue of fact by questioning the depth of the fuel lines and lack of warning signs, because there was no evidence of any leaks or defects with the heating system or fuel lines before the lines were severed. Defendants’ contention that discovery was needed on those issues was speculative.
Bennett v. State Farm Fire & Cas. Co., 2016 NY Slip Op. 01452 (2d Dep’t March 2, 2016)
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