Extrinsic evidence as to the extent of a FEMA Zone created a question of fact as to a policy exclusion that excluded coverage for specified FEMA Zones.

The First Department affirmed the denial of cross-motions by plaintiff-insured and defendant-insurer for summary judgment with regard to a flood exclusion.  Defendant-carrier provided property and casualty coverage for several of plaintiff’s brewery premises throughout New York City. The policy limited coverage for flooding, but specifically excluded “loss or damage to property located in “Flood Zones A or V as defined by the Federal Emergency Management Agency (FEMA).”  During Superstorm Sandy, plaintiff’s premises at 93 South Street sustained substantial flood damage. When plaintiff presented its claim to defendant, defendant declined coverage because the premises was located in FEMA Zone AE, which defendant asserts is a subzone of Zone A. Plaintiff challenged this interpretation, claiming that Zone AE is not a subzone or part of Zone A, but rather is separately defined under FEMA’s regulations (44 CFR § 59.1, et seq.).

The First Department recited the following black-letter principals of insurance construction:

  • The ambiguity vel non of an insurance policy term is a question of law.
  • The policy provision is to be read in light of common speech and interpreted according to the reasonable expectations and purposes of ordinary business[]people when making ordinary business contracts .
  • Exclusions must be specific and clear in order to be enforced  (and ambiguities in exclusions are to be construed  most strongly  against the insurer.
  • There are circumstances where extrinsic evidence may be admitted prior to an exclusion being strictly construed against an and where ambiguous words are to be construed in the light of extrinsic evidence or the surrounding circumstances, the meaning of such words may become a question of fact for the jury.

Here, the language of FEMA’s flood zone regulations raises an issue of fact rendering the insurance policy’s exclusion of flood coverage ambiguous.

 Heartland Brewery, Inc. v Nova Cas. Co., 2017 NY Slip Op 02908 (1st Dep’t April 13, 2017)

http://nycourts.gov/reporter/3dseries/2017/2017_02908.htm

Defendant lessors and building manager had no duty to protect tenant psychologist from being murdered by her former patient.

Defendants provided satisfactory security and nothing more would have prevented the premediated murder.  Plaintiff’s decedent Kathryn Faughey was a psychologist in a psychiatric office who was murdered by former patient non-party David Tarloff in decedent’s office.  Decedent leased her office from defendant psychiatric office which leased its space from defendant building owner and defendant building manager.  The Appellate Division First Department affirmed dismissal of plaintiff’s complaint holding that defendants had no duty to protect decedent from the violent actions of third parties including former patients because such actions were not foreseeable given the absence of prior violent criminal activity by the patient or other third parties in the building.   Moreover, defendants had satisfied any duty to provide “minimal precautions” by providing 24/7 doorman coverage, surveillance cameras, controlled building access, and functioning locks on the doors of the office suite and of decedent’s personal office.   The First Department stated that it was pure speculation that any claimed additional security measures such as announcing visitors, installing an office intercom or buzzer, or keeping the office doors locked after hours would have prevented the former patient from killing the decedent.

The First Department also held that the door man’s alleged negligence in failing to recognize the patient’s suspicious behavior could not have been a proximate cause of decedent’s death because it was still unforeseeable that the patient was about to engage in a murderous rampage. The patient’s conduct was a superseding cause severing the causal chain. Given that the attack was targeted and premeditated, it was unlikely that any reasonable security measures would have deterred Tarloff.

Faughey v. New 56-79 IG Assoc., L.P.,  2017 NY Slip Opn 02608 (Apr. 4, 2017) http://nycourts.gov/reporter/3dseries/2017/2017_02608.htm

 

Wikipedia https://en.wikipedia.org/wiki/Murder_of_Kathryn_Faughey provides additional facts:  decedent Top of Form

Kathryn Faughey was a 56-year-old New York City psychologist who was murdered by 39-year-old David Tarloff at Dr. Faughey’s upper East Side Manhattan office on the night of February 12, 2008.  David Tarloff had exhibited disturbing behaviors for almost two decades, and was well-known to the medical and psychiatric establishment and the police force. During these years, up to the time of Dr. Faughey murder, Tarloff received a wide range of psychiatric assessments and treatments including medication and electroshock therapy by force.

On the evening of the murder, Tarloff walked past the doorman rolling a suitcase behind him (as seen on the building’s surveillance video) and saying that he was there to see Dr. Kent Schinbach (a psychiatrist in the same office). Tarloff waited in the office reception area chatting with a patient, while one of Dr. Faughey’s evening sessions was in progress. After Dr. Faughey’s session concluded and when he knew that Faughey was alone in her office, he entered the room and attacked her with a meat cleaver. Dr. Schinbach attempted to help her, but was seriously wounded by slashes in the face and neck.

Tarloff was arrested, arraigned for the murder, and ordered to undergo a psychiatric evaluation after which he was determined to be mentally competent to stand trial. There was evidence that the attack had been premeditated but that the intended victim was Schinbach.  Tarloff told police that he had planned to rob Schinbach, who he remembered as being involved in diagnosing him with schizophrenia in 1991 and arranging for his institutionalization at that time.

After two mistrials, Tarloff was convicted of first-degree murder of Dr. Faughey and first-degree assault of Dr. Schinbach.  Tarloff was sentenced for life without the possibility of parole for the murder and 25 years for the assault.

Defendants’ motion to change venue was untimely as to improper venue and was unwarranted as to the inconvenience of witnesses.

There were two grounds to defendants’ objection to the venue of the action: first, that the county was improper (“improper venue”) and second, that the witnesses were inconvenienced by the county plaintiff had chosen (“inconvenient venue”). Defendants’ motion as to the first ground (improper venue) was late and as to the second (inconvenient venue) was unwarranted.

Timing of motion re improper venue. Where defendant objects to the county in which plaintiff has commenced suit (under CPLR 510(1), defendant must serve a demand for change of venue on or before the date the answer is served. CPLR 511(a). Unless plaintiff consents to the transfer of venue within five days of defendant’s demand, defendant must move within 15 days from the date of filing his demand for change of venue to the proper county. CPLR 511(b); Alexander, Practice Commentary C511:2 Motion to Transfer Based on Improper Venue: “Demand Procedure” (Main Commentary, McKinney’s).

Here, defendants met the first deadline by electronically filing their demand for change of venue with their answer on July 14, 2015. In so doing, defendants consented to electronic filing, which thereafter required defendants to electronically file and serve all documents that were thereafter required to be filed with the court. 22 NYCRR 202.5-b(d) (1)(i).

Defendants, however, missed the second deadline by two days: seventeen days after electronically filing and serving their demand for a change of venue, defendants served by U.S. mail their motion to change venue. Defendants attempted to argue that CPLR 2103(b)(2) (which gives an extra five days for service by mail when a prescribed period of time is measured from the service of paper and service is mailed) added an extra five days to the fifteen-day time limit. The First Department rejected that argument holding that because defendants had already consented to electronic service and filing, they were bound by the time limits applicable to electronic filling and could not avail themselves of the extension of time for mailing.
Inconvenience of witnesses. CPLR 510 sets forth two additional grounds for change of venue: inability to obtain an impartial trail (CPLR 510(2)) and inconvenience of witnesses (CPLR 510(3)). These two grounds are “discretionary” grounds. Alexander, Practice Commentary C510:1 Motions for Change of Venue, In General (Main Commentary, McKinney’s). These defendants also argued that the venue was inconvenient for their witnesses.
The First Department held without elaboration that defendants failed to show that a change of venue was warranted due to the inconvenience of material witnesses because their motion papers did not address the factors enumerated in Cardona v Aggressive Heating, 180 AD2d 572 (1st Dep’t 1992). [Cardona requires that the movant provide (1) the identity of the proposed witnesses, (2) the manner in which they will be inconvenienced by a trial in the county in which the action was commenced, (3) that the witnesses have been contacted and are available and willing to testify for the movant, (4) the nature of the anticipated testimony, and (5) the manner in which the anticipated testimony is material to the issues raised in the case.]
Woodward v Millbrook Ventures LLC, 2017 NY Slip Op 02522 (1st Dep’t Mar. 30, 2017) http://nycourts.gov/reporter/3dseries/2017/2017_02522.htm

Res ipso loquitur did not apply in an escalator case where there was no objective evidence of malfunctioning

Res ipso loquitur did not apply in an escalator case where there was no objective evidence of malfunctioning (plaintiff misstepped onto the escalator and there was no proof of malfunction), but did apply in an elevator case where the elevator unexplainedly stopped suddenly and abruptly.

Summary judgment was affirmed to Macy’s and to its independent escalator servicing company because neither defendant had any notice of the alleged escalator defect either before or after the incident, and because the doctrine of res ipsa loquitur did not apply.

The store’s manager and the escalator company’s mechanic both testified that they received no reports of the escalator’s shaking or stopping and starting before or after the date of plaintiff’s accident.  Nor did anyone, including plaintiff, before or after her accident, observe the escalators stop and start several times in succession, as plaintiff claimed occurred when she fell.  There was evidence, however, that plaintiff fell after misstepping onto the elevator and that after her fall, she successfully rode the escalator up to the next level with no further escalator malfunction.  Moreover, defendant’s expert opined that plaintiff’s description of the alleged malfunctioning was a mechanical impossibility because it would have resulted in a catastrophic mechanical failure of the escalator that would have resulted in observable problems and would have required a significant repair, none of which occurred.

Plaintiff failed to raise a question of fact.  Her expert relied on a bare-bones print-out of prior elevator incidents that was unauthenticated and that gave no indication that the incidents were similar to the one at issue.  The print-out was therefore inadmissible as proof of prior incidents.  Also inadmissible were service calls made by Macy’s to the elevator servicing company four and five months before plaintiff’s incident.  The calls pertained to an escalator on a different level that was not running, which was a malfunction that was unrelated to the type plaintiff described.  Moreover, plaintiff’s expert’s opinion that the accident was caused by a defective step chain and a lack of proper and adequate preventative maintenance was speculative and conclusory.

Lastly, the doctrine of res ipsa loquitur, which would permit a jury to infer negligence based upon the sheer happening of the event, was inapplicable:  The escalator never operated in the manner that plaintiff described either before or after her incident, and plaintiff, after her fall, rode the escalator up to the next level without further malfunctioning.   The evidence of plaintiff’s misstepping getting onto the escalator created the possibility of plaintiff’s own negligence in causing the accident.  And res ipsa loquitur could not be applied to Macy’s because Macy’s had ceded all responsibility for the daily operation, repair and maintenance of the escalator to the servicing company via a full-service contract.

Torres-Martinez v Macy’s, Inc., 2017 NY Slip Op 00429 (1st Dep’t Jan. 24, 2017) http://nycourts.gov/reporter/3dseries/2017/2017_00429.htm.

In contrast, however, the First Department did apply res ipsa loquitur to defeat the motion for summary judgment by defendant NYC Housing Authority in a case where plaintiff was injured when an elevator came to a unexplained sudden and abrupt stop; defendant failed to demonstrate that it lacked exclusive control over the elevator; and there was no evidence that vandalism caused the elevator’s malfunction or that plaintiff’s actions contributed to the accident.

Galante v. New York City Hous. Auth, 2017 NY Slip Opn  00430 (1st Dep’t Jan. 24, 2017) http://nycourts.gov/reporter/3dseries/2017/2017_00430.htm

Met Opera’s motion to dismiss a star’s negligence action against it was properly denied.

In a decision by Justice Rolando Acosta, the First Department affirmed Special Term’s denial of the Met Opera’s motion to dismiss plaintiff’s negligence action.  The Met based its motion on plaintiff’s status as the Met’s employee or special employee, which would have relegated plaintiff to the exclusive remedy of worker’s compensation per WCL §11.

By way of background, the New York Times reported on December 18, 2011 that mezzo soprano Wendy White, while singing the role of Marthe in Gounod’s “Faust” the preceding evening, fell from a platform eight feet above the stage as she made her entrance in Act III.   http://www.nytimes.com/2011/12/18/arts/music/opera-singer-wendy-white-in-stable-condition-after-a-fall-at-the-met.html.   As she walked onto a platform from a staircase, a hinge on a piece of plywood that connected the platform to the stairway broke, and Ms. White disappeared from view.  The curtain was dropped and Ms. White was taken to the hospital.  Id.  Ms. White broke no bones but suffered nerve and muscle damage that has prevented her from singing professionally.  http://www.nytimes.com/2012/10/02/arts/music/wendy-white-says-met-refuses-to-pay-her-after-injury.html.

At issue on the Met’s motion to dismiss was Workers’ Comp. Law§ 2(4), which was enacted in 1986 to define “employee” to include those in the performing arts:

“a professional musician or a person otherwise engaged in the performing arts who performs services as such for … a theatre … or similar establishment … unless, by written contract, such musician or person is stipulated to be an employee of another employer covered by this chapter.”

WCL §2(4) (emph. supplied).

Plaintiff performed at the opera house pursuant to a “Standard Contractor’s Agreement (Per Performance”) between the Met and her corporation, Wendy White, Inc. (WW, Inc.), which defined WW, Inc. as the “Contractor”.

Notwithstanding various provisions of the Standard Contract and the collective bargaining agreement covering Ms. White, which gave the Met a certain amount of control over Ms. White in her performances, the First Department found the following factors important in denying the Met’s motion to dismiss:

  • The Standard Contractor’s Agreement was between the Met and plaintiff’s corporation and specified that plaintiff was an employee of her corporation.
  • The Standard Contractor’s Agreement did not cede total control of Ms. White’s performance to the Met, so the Met did not become her special employer.
  • Plaintiff’s corporation received only 1099’s, not W-2’s from the Met.
  • The Met paid her no employment benefits and had told her she did not qualify for the Met’s health insurance because she was not an employee.
  • The Met provided her with no training, supervision, or direction from the Met with respect to how to perform her role and did not pay for her voice lessons or coaching.
  • The legislative history behind section 2(4) stated that the section was intended to cover the vast majority of musicians and performers who are not in the star category, as opposed to star performers who are independent professionals able to negotiate the terms of their engagements.
  • Without plaintiff’s consent, the Met filed a worker’s compensation claim in New York with its worker’s compensation, which the Met’s WC carrier accepted “without prejudice”.
  • The Worker’s Compensation Board cancelled its proposed decision of accident, notice and causal relationship on the ground that claimant wanted the case to be discontinued because she had filed her own WC claim in New Jersey against her corporation-employer.
  • The Met had previously taken the opposite position in an unrelated case, Inre Metropolitan Opera Assn., Inc. and Operatic Artists of America, (327 NLRB No. 136, 327 NLRB 740, 744-745 1999 WL 112550, *9, 1999 NLRB LEXIS 113, *29-30 [NLRB 1999]).

Plaintiff’s corporation therefore met the definition of an “employer covered by this chapter,” inasmuch as it is a corporation “having one or more persons in employment” per WCL § 2(3).

Lastly, the failure of plaintiff’s corporation to have obtained a workers’ compensation policy compliant with WCL §50(2) did not mean that plaintiff was necessarily covered by the Met’s worker’s compensation policy, because the statutory consequence of failing to obtain such a policy is simply payment of a penalty.  In addition, WCL §54(6)(c) provides that a corporation such as plaintiff’s, whose sole employee is an executive officer who owns 100% of the stock, need not purchase workers’ compensation for the employee.  Moreover, plaintiff’s corporation was not seeking to invoke the benefits of the immunity provision of WCL §11 without fulfilling its corresponding obligation under the statute.

White v. Metropolitan Opera Ass’n, 2017 NY Slip Op. 00093 (Jan. 5, 2017)   http://nycourts.gov/reporter/3dseries/2017/2017_00093.htm

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