Plaintiff stated a valid legal-malpractice cause of action against his former plaintiff’s-attorneys where the attorneys had failed to refresh the recollection of the sole eye witness with the police accident report before the witness was deposed. After the witness’s misdescription of the hit-and-run vehicle, plaintiff lost his personal-injury action.

Plaintiff stated a valid legal-malpractice cause of action against his former plaintiff’s-attorneys where the attorneys had failed to refresh the recollection of the sole eye witness with the police accident report before the witness was deposed. After the witness’s misdescription of the hit-and-run vehicle, plaintiff lost his personal-injury action. 

Reversing Supreme Court, the First Department stated that plaintiff stated a valid cause of action for legal malpractice against his former law firm’s motion.  The law firm had formerly represented plaintiff in the latter’s personal-injury lawsuit arising out of a hit-and-run accident.  Supreme Court had granted the law firm’s motion to dismiss and the First Department reversed.

Plaintiff had been struck by a garbage truck that had fled the scene.  The defendant-driver in the underlying personal injury action had been driving a green garbage truck with a flat front and had admitted to a route that would have placed him in at the scene on the day and at the time of the accident.  The police report regarding the accident showed that the sole eye witness had called the police shortly after the accident and had described the hit-and-run vehicle as a green garbage truck with a flat front.

The eye witness was deposed two years after the accident and testified that that the garbage truck he remembered fleeing the scene had a round front, not a flat front.  Plaintiff lost his personal-injury suit.

Plaintiff alleged in the subject malpractice action that defendant law firm had failed to refresh the recollection of the sole eyewitness before the deposition about the appearance of the truck, which led to erroneous testimony by the witness and which but for that negligence had caused the loss of plaintiff’s personal-injury case.

The First Department held that these allegations were sufficient to survive a CPLR 3211(a)(1) and (7) motion to dismiss, as nothing in the record conclusively established a defense as a matter of law.

The First Department also granted plaintiff’s motion to amend his complaint stating that plaintiff’s proposed amendments (without elucidation as to what they were), stating that the amendments were not “patently devoid of merit” and would not prejudice or surprise defendants.

Caso v Miranda Sambursky Sloane Sklarin Ver Veniotis LLP, 2017 NY Slip Op 03607, 1st Dept 5-4-17.

Building owner’s status as additional insured on lessee’s policy did not entitle building owner to defense and indemnification by lessee’s insurer where slip and fall occurred in parking lot and lessee did not lease and was not required to maintain parking lot. 

The Second Department affirmed Supreme Court’s ruling that a lessee’s insurer had no duty to defend and indemnify a building owner in an underlying slip-and-fall accident that had occurred in the building’s parking lot.  In the underlying action, the underlying plaintiff was an employee of a non-party tenant L who leased part of the building from underlying-defendant Building Owner.  Tenant L’s lease stated that the parking lot was a common area and that Building Owner was responsible for its maintenance including snow removal.  Another tenant U [Tenant U] and Building Owner were owned by the same principals.  The underlying plaintiff alleged that he slipped and fell on black ice in the parking lot and sued Building Owner and Tenant U in the underlying action.

At the time of the accident, Building Owner and Tenant U had a commercial liability insurance policy in effect with Citizens Insurance [Building Owner’s Insurer], who was also a plaintiff in the DJ action.  Tenant L had a commercial liability insurance policy in effect with defendant Valley Forge Insurance [Tenant L’s Insurer].  Tenant L’s insurance policy contained an endorsement providing coverage for Building Owner as an additional insured for “liability arising out of the ownership, maintenance or use of that part of the premises leased to [Tenant L] and shown in the Schedule” (emphasis supplied). The “Schedule” stated that Tenant L had leased “Unit 2” of the building and made no reference to the parking lot.  Building Owner tendered to Tenant L’s Insurer its claim for a defense and indemnification in the underlying action as an additional insured, but Tenant L’s Insurer denied Building Owner’s tender on the ground that the potential liability did not arise out of the ownership, maintenance, or use of the part of the premises leased to Tenant L.  Tenant L’s Insurer argued that, according to the lease, the parking lot was a common area outside of the leased premises, and that Building Owner was responsible for snow and ice removal from the parking lot.  Building Owner and its insurer Citizens Insurance then commenced the subject DJ action against Tenant L’s Insurer seeking, among other things, a declaration that Tenant L’s Insurer was obligated to defend and indemnify Building Owner and Tenant U in the underlying action. Tenant L’s Insurer moved for summary judgment, which Supreme Court granted.  Building Owner and its insurer appealed.

First, the Second Department made short shrift of plaintiffs’ contention that the motion for summary judgment by Tenant L’s Insurer was premature, stating that plaintiffs failed to offer an evidentiary basis to suggest that discovery might lead to relevant evidence.

Second, moving to the merits, the Second Department cited the following points of black letter law:

  • An insurer’s duty to defend is exceedingly broad.
  • An additional insured is entitled to the same coverage as if it were a named insured.
  • The insurer is required to defend the entire action if any of the claims against an insured arguably arise from covered events.
  • “Arising out of” requires only that there be some causal relationship between the injury and the risk for which coverage is provided.
  • An insurer does not wish to be liable for losses arising from risks associated with a premises for which the insurer has not evaluated the risk and received a premium.
  • Unambiguous provisions of an insurance contract must be given their plain and ordinary meaning and the interpretation of policy language is a question of law for the courts.

The Second Department then held that Tenant L’s Insurer established its prima facie entitlement to judgment as a matter of law:

  • The additional-insured endorsement unambiguously provided that Building Owner was an additional insured for liability “arising out of” the “ownership, maintenance or use” of the “premises leased” to Tenant L.
  • Tenant L leased only a portion of the building from Building Owner, not the parking lot where the accident occurred.
  • Tenant L had no duty to maintain the parking lot.
  • There was therefore no causal relationship between the injury and the risk for which coverage was provided, so the underlying plaintiff’s injury was not a bargained-for risk.
  • In opposition, plaintiffs failed to raise a triable issue of fact as to whether Building Owner was an additional insured with regard to the accident, which occurred outside of the leased premises

The Second Department therefore remitted to Supreme Court for entry of a judgment declaring that Tenant L’s Insurer was not obligated to defend and indemnify Building Owner or Tenant U in the underlying action.

 Atlantic Ave. Sixteen AD, Inc. v Valley Forge Ins. Co., 2017 NY Slip Op 04243, 2nd Dept 5-31-17

Question of fact defeated defendant metal-concert venue’s motion for summary judgment on the ground of primary assumption of risk regarding plaintiff’s injury from moshing. 

Plaintiff was a first-time attendee at a general-admission “metal” (a/k/a heavy metal) concert at defendant’s concert hall.  Plaintiff alleged he was pushed from behind in the mosh pit and was hit in the eye as he was attempting to exit the mosh pit.

Per Wikipedia, moshing or slamdancing is a style of dance in which participants push or slam into each other typically performed to “aggressive” live music. Moshing usually happens in an area called the “pit” (sometimes called a “mosh pit”) near the stage. It is intended to be energetic and full of body contact.

Defendant’s general manager testified at his deposition that there were two state-licensed security guards on duty that evening; the show was almost sold out; and moshing would be stopped if and when it became unsafe and affected bystanders.

Defendant moved for summary judgment vis-à-vis plaintiff’s negligence causes of action, on the grounds that (a) plaintiff had assumed the risk (primary assumption of risk) or alternatively (b) that an unforeseen and sudden criminal act of an uncontrollable third party caused the incident and defendant had taken adequate security measures.

The Second Department declined to grant defendant summary judgment on the first ground (the doctrine of primary assumption of risk), finding questions of fact.  Primary assumption of risk is a complete defense and applies when a consenting participant in a qualified activity is aware of the risks, has an appreciation of the nature of the risks, and voluntarily assumes the risks.  A person who chooses to engage in such an activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the activity generally and flow from such participation,  The duty owed in these situations is a duty to exercise care to make the conditions as safe as they appear to be.  The doctrine has generally been restricted to particular athletic and recreative activities in recognition that such pursuits have enormous social value even while they may involve significantly heightened risks and are, therefore, worthy of insulation from a breach of duty claim.

[NB: Under secondary assumption of risk, assumption of the risk is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibilities of the parties.  NY PJI 2:55.]

Without reaching the question of whether attending a metal music concert where “moshing” takes place is a qualified activity under the doctrine of primary assumption of risk, the Second Department held that defendant failed to eliminate triable issues of fact as to whether it met its duty to exercise care to make the conditions at the subject venue as safe as they appeared to be and whether it unreasonably increased the usual risks inherent in the activity of concert going.  Defendant also failed to eliminate triable issues of fact as to whether the plaintiff assumed the risk of injury, whether the plaintiff’s alleged injuries were foreseeable, and whether defendant provided adequate security measures and, if not, whether its failure was a proximate cause of the plaintiff’s alleged injuries.   Nevo v Knitting Factory Brooklyn, Inc., 2017 NY Slip Op 03186, 2nd Dept 4-26-17

In no-fault loss-transfer arbitration, carrier’s failure to apply for stay waived its claim that arbitrator lacked jurisdiction to rule on carrier’s retroactive rescission of policy. 

Hereford Ins. was the subrogee of two passengers in a “for hire” vehicle” that had been rear-ended by Infinite Indemnity’s insured.   Infinity Indemnity participated in and opposed the arbitration arguing that after the accident it had retroactively rescinded the policy so that there was no coverage on the date of the accident.  The arbitrator rejected that argument and made two awards in favor of Hereford Ins.

Infinite Indemnity then brought the instant article 75 proceeding under CPLR 7511 to vacate the awards on two grounds:  (a) the retroactive rescission deprived the arbitrator of jurisdiction over the arbitration and (b) the arbitrator should have applied Pennsylvania law (where the policy was obtained) instead of New York law.  Hereford Ins. cross-petitioned to confirm the awards.  Supreme Court confirmed the awards in favor Hereford Insurance which the Second Department affirmed, holding that Infinite Indemnity’s claims were meritless.

With regard to Infinite Indemnity’s contention that its “good faith” retroactive denial of insurance coverage divested the arbitrator of jurisdiction, the Second Department stated that Insurance Law § 5105(b) provides that arbitration is the only forum in which a loss-transfer claim may be litigated and that by failing to apply for a stay of the arbitration, Infinite Indemnity waived its claim that the claim was not arbitrable.  In addition, any possible error by the arbitrator in applying New York law was no basis for vacatur.   Matter of Infinity Indem. Ins. Co. v Hereford Ins. Co., 2017 NY Slip Op 03177, 2nd Dept 4-26-17

Defendant Starwood Hotel’s motion for summary judgment was premature regarding a slip and fall that occurred at a Four Points By Sheraton hotel in Michigan which was owned by an unrelated Michigan corporation.

This case is plaintiff’s second attempt to find a defendant subject to jurisdiction in New York.  In this case, plaintiff sued Starwood Hotels and Resorts Worldwide, Inc. (Starwood) for her trip and fall on a defective walkway at the Four Points by Sheraton Ann Arbor Hotel in Michigan.  The Four Points Sheraton Ann Arbor Hotel was owned by ZLC Inc., a Michigan corporation unrelated to defendant Starwood.

By way of background, plaintiff had previously sued ZLC, Inc. unsuccessfully in New York premising long-arm jurisdiction on plaintiff’s having made her hotel reservation from her New York residence via an interactive website maintained by Starwood for Sheraton hotels.   During her stay at the Sheraton hotel in Ann Arbor, plaintiff tripped over a walkway in the hotel lobby and fractured her knee.  Defendant owner ZLC was a Michigan corporation that used the trademark name “Sheraton” pursuant to a license agreement and had no other hotels and no bank accounts, real estate, or other contacts with New York.  The First Department dismissed plaintiff’s case against ZLC because ZLC’s participation in the interactive website was too remote to support long-arm or specific jurisdiction under CPLR 302(a)(1) and there was no tortious act committed outside New York that injured plaintiff within New York under CPLR 302(1)(3).  Stern v Four Points by Sheraton Ann Arbor Hotel, 2015 NY Slip Op 08501 [133 AD3d 514] (1st Dep’t 2015)  http://nycourts.gov/reporter/3dseries/2015/2015_08501.htm.

In plaintiff’s instant suit against Starwood, the First Department stated that ZLC operated the hotel using the “Four Points by Sheraton” name pursuant to a license agreement with nonparty The Sheraton Corporation, which was identified in the agreement as “an indirect, wholly-owned subsidiary” of Starwood.

Starwood moved for summary judgment based on demonstrated proof that

  • Starwood did not own or control the hotel,
  • Under the terms of the license agreement with Sheraton, ZLC was an independent contractor and was responsible for the day-to-day operations of the hotel, and
  • Even if Starwood were a party to the license (or franchise) agreement, the mere existence of a franchise relationship provided no basis for imposing vicarious liability on Starwood for the negligence of non-party franchisee ZLC.

In opposition, plaintiff submitted evidence that Starwood’s reservations website holds the hotel out to the public as being a Starwood property and that plaintiff relied on the representations on Starwood’s website in choosing to book a room at the hotel.

The First Department held that this evidence of public representations and reliance may support a finding of apparent or ostensible agency that in turn may impose vicarious liability on Starwood. Although the license agreement required ZLC to disclose that it was an “independent legal entity operating under license” from Sheraton and to place “notices of independent ownership” on the premises, Starwood did not provide any evidence that ZLC complied with those requirements.  The First Department therefore affirmed denial of Starwood’s motion for summary judgment as being premature and granted plaintiff discovery under CPLR 3212(f) of matter exclusively within Starwood’s control about its possible agency relationship with the hotel, including its reservations system and advertising.

Stern v Starwood Hotels & Resorts Worldwide, Inc., 2017 NY Slip Op 02882 (1st Dep’t 2017) http://nycourts.gov/reporter/3dseries/2017/2017_02882.htm.

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