In a decision limited to the facts of the case, the Court of Appeals reversed a robbery conviction because the People failed to sufficiently authenticate an internet image purportedly of defendant holding gun that was “similar” to the one he used in the robbery.

The photograph had been printed out by a police detective from the website “BlackPlanet.com”.  The photograph had been posted to a profile page several months before the robbery and showed an individual holding some cash and a gun.  The detective had found the photograph by searching defendant’s surname “Price” and, after scrolling through several pages of results containing approximately 50 internet profiles whose usernames incorporated the term “Price” into them, saw a public profile that contained several photographs of defendant with the username “Price_OneofKind.”  The public profile page contained no reference to defendant’s full name.  Although the detective testified that the profile page listed the purported user’s age and hometown, the detective did not testify as to whether any of that information matched defendant’s information, and none of the pages containing this information were introduced to connect defendant to the specific user of this website.

The robbery occurred while the victim was standing outside a milk delivery truck conducting milk deliveries with the driver who was inside the truck.  The delivery truck driver testified that he noticed that someone holding a gun about a foot away from the chest of the victim and observed that the victim exchanged words with the gunman and threw a handful of cash from his pocket to the ground.  The driver then saw the gunman’s accomplice gather the money and the two robbers flee. The truck driver did not see the gunman’s face and was unable to identify defendant at trial as either of the perpetrators.

The People then made an offer of proof regarding the print-out of the photograph from the internet, to wit, that the victim thought that the gun on the photograph was similar to the gun that the robber had pointed at him and the detective thought that the individual in the photograph looked like defendant.  The trial court admitted the photograph into evidence.

The victim testified to the circumstances of the robbery, and he identified defendant as the gunman. The victim described the firearm used in the robbery as a 9-millimeter automatic with a silver rectangular feature on the top of the barrel, but the victim admitted that he had no prior familiarity with firearms. When shown the gun in the bottom portion of the internet photograph, the victim testified that the gun looked “similar” to the gun used in the robbery, but he could not identify the gun in the photograph as the one held by the robber.

The detective then testified that the individual in the photograph holding the handgun “look[ed] like” defendant. The detective explained that she had printed the photograph from the internet website, and she asserted that the printout was a true and accurate depiction of the photograph she observed on the website. But the detective did not know who took the photograph, when it was taken, where it was taken, or under what circumstances it was taken. Nor did she know whether the photograph had been altered or was a genuine depiction of that which it appeared to depict.

During summations, the People urged the jury to conclude that the photograph was taken from an internet profile page belonging to defendant, and emphasized that the victim “recognized” the gun depicted in the photograph as the one held by the gunman. Following deliberations, the jury found defendant guilty of the counts of robbery asserted against him.

Upon defendant’s appeal, the Second Department affirmed the judgment of conviction (127 AD3d 995, 996 (2d Dept 2015)), holding that the People laid a proper foundation for admission of the photograph, that the photo was relevant to the issue of the defendant’s identity as the gunman, and the photo’s probative value outweighed any prejudicial effect”. The Court of Appeals granted defendant leave to appeal.

All six judges of the Court of Appeals voted to reverse the conviction and ordered a new trial, but they split four to two on the rationale.  Judge Stein writing for the majority (which included Judges DiFiore, Fahey, and Wilson) recited black-letter-law principals of authenticating photographs as evidence and pronounced that the People had failed to authenticate the photograph, but then (in footnote 3) limited the holding to the facts of this case because the Court was not prepared to enunciate a general test of admissibility of photographs obtained from social media websites:

In our view, it is more prudent to proceed with caution in a new and unsettled area of law such as this. We prefer to allow the law to develop with input from the courts below and with a better understanding of the numerous factual variations that will undoubtedly be presented to the trial courts. Because we necessarily decide each case based on the facts presented therein, it would be premature to decide whether the People’s proffer would have been sufficient had the prosecution, hypothetically, established that the website was controlled by defendant. At this time, it is sufficient and appropriate for us to hold that, based on the proffer actually made, the photograph was not admissible.

In her concurring opinion which was joined by Judge Garcia, Judge Rivera chided the majority for failing to address head on the question of how to authenticate social media images – an evidentiary issue of growing concern given the proliferation and ubiquitousness of social media:

Contrary to the majority’s claim, when we decide an open question presented on appeal we do not act in haste (majority op at 10 n 3). Rather, we pronounce the law by which we reason an outcome. Given the pervasive use of social media, there is nothing premature about determining how law enforcement and prosecutors may use evidence obtained online

Judge Rivera states that the People had to satisfy two levels of authentication: (1) the print out was an accurate representation of the web page; and (2) that the page was defendant’s, meaning he had dominion and control over the page allowing him to post on it.  In her view, the People proved, through the detective’s testimony, that the printout was an accurate representation of the digital image viewed on the website. But the People failed to establish that the web page was defendant’s, either by direct or circumstantial evidence or with proof establishing reasonable inferential linkages that ordinarily supply foundational prerequisites.  The “tie-in effort” between the testimony relied on by the People and the purpose for which the printout was submitted was too tenuous and amorphous. In other words, the People did not submit proof by which a reasonable jury could conclude that the printout was an accurate representation of defendant’s profile page.   Judge Rivera therefore agreed with the majority’s conclusion that authentication could not be accomplished solely by proof that defendant’s surname and picture appears on the profile page.

Judge Rivera criticized the People for failing in their proffer to present the personal information posted on the web page which might have established the necessary link to defendant.  Other evidence arguably addressed the authentication of the web page, such as proof that the defendant posted or adopted the photograph, or knew of the photograph and allowed it to remain on the profile page without objection, but given the deficiency of the proof actually submitted, Judge Rivera agreed with the majority that the Court need not consider whether proof that the web page belonged to defendant could also establish that the image depicted was genuine.  Thus, since the People did not link defendant to the web page where the image was found, there was no need to consider on this appeal the requirement that there had been no tampering with the proffered evidence. And given the lack of adequate evidence connecting defendant to the web page, the Court had no reason to address the sufficiency of the victim’s identification of the gun.

People v Price, 2017 NY Slip Op 05174, CtApp 6-27-17

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

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.

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

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

Defendant homeowner’s insurer properly rescinded the policy based on insureds’ innocent misrepresentation that the home was to be occupied, and the insurance broker had no duty to make sure the insureds properly filled out the application.

The Second Department held that defendant insurer properly rescinded plaintiffs’ fire insurance policy based upon the plaintiffs’ misrepresentation the residence would be owner-occupied because a misrepresentation can be innocently made and still trigger rescission. The Second Department also found that the broker had no obligation to make sure that plaintiffs properly filled out the insurance application.

Before plaintiffs bought the subject residence in Brooklyn, plaintiffs’ mortgage broker told plaintiffs that plaintiffs needed insurance to close.  The mortgage broker contacted defendant insurance broker to procure a homeowners’ insurance policy based upon plaintiffs’ representations in their loan application that they would occupy the premises as their primary residence.  Plaintiffs signed an application for owner-occupied homeowner’s insurance and defendant insurance carrier issued a homeowner’s insurance policy on the closing date.

After fire damaged the premises, defendant insurer discovered that plaintiffs did not occupy the premises as their primary residence and rescinded the policy, on the ground that plaintiffs’ material  representation about occupancy induced the insurer to issue a policy that it normally would not have issued.

Plaintiffs sued the insurer and the insurance broker for breach of contract and negligence. Held:  Supreme Court properly granted summary judgment to defendant insurer and defendant insurance and properly denied the plaintiffs’ cross motion for summary judgment against both defendants.

The insurer established its prima facie entitlement to summary judgment by submitting evidence showing that the plaintiffs’ application for insurance contained a misrepresentation regarding whether the premises would be owner occupied and showing that it would not have issued the subject policy if the application had disclosed that the subject premises would not be owner occupied.  In holding that plaintiffs failed to raise a triable issue of fact, the Second Department  stated:

  • Plaintiffs admitted that, when they signed the application for insurance, they did not intend to occupy the premises. Plaintiffs unsuccessfully contended that, although the application was completed before to closing and before to the inception of the policy, the representation that the premises was an owner-occupied primary residence established, in effect, a material misrepresentation of a then existing fact that the premises would be owner occupied, which was sufficient for rescission under Insurance Law § 3105.
  • Secondary evidence of plaintiffs’ first application for insurance which plaintiffs signed was proof in admissible form under CPLR 4539[b]). And plaintiff’s unsigned second application was also admissible.
  • The question on the application about owner occupancy was unambiguous and therefore could properly serve as the basis for a claim of misrepresentation. Moreover, plaintiffs admitted that they did not read the application when they signed it, so they could not have been misled by any unclear language.
  • The insurer was not required to establish that plaintiffs’ misrepresentation was willful. An innocent or unintentional material misrepresentation is enough to warrant rescission of an insurance policy.
  • The policy language did not require a showing of willfulness for rescission based on a misrepresentation made when applying for coverage.
  • Although there was a question of fact as to whether the insurance broker was an agent or a broker vis-à-vis the insurer, there was no issue of fact as to whether the insurance broker knew of the material misrepresentation, so no such knowledge could not be imputed to the insurer.

With regard to the insurance broker, insurance brokers have a common-law duty to obtain coverage that their client request within a reasonable time or inform the client of the inability to do so, but they have no continuing duty to advise, guide or direct a client to obtain additional coverage.  So to state cause of action for negligence or breach of contract against an insurance broker, plaintiff must establish that a specific request was made to the broker for the coverage that was not provided in the policy.

Although in exceptional circumstances a special relationship may develop between the broker and client that will make the broker liable for failing to advise or direct the client to obtain additional coverage even in the absence of a specific request, none of those circumstances applied here.  The three exceptional situations are: (1) the agent receives compensation for consultation apart from payment of the premiums; (2) there was some interaction regarding a question of coverage, with the insured relying on the expertise of the agent; or (3) there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on.

The insurance broker demonstrated that none of the exception circumstances applied and further demonstrated that it procured the insurance requested.

Joseph v Interboro Ins. Co., 2016 NY Slip Op 08050, 2nd Dept 11-30-16 http://nycourts.gov/reporter/3dseries/2016/2016_08050.htm

Tort-plaintiff is entitled to “made whole” rule vis-à-vis his no-fault carrier’s subrogation right against his tort settlement.

Tort-plaintiff (“plaintiff”) had sued tort-defendant (“defendant”) for plaintiff’s personal injuries resulting from their two-car accident.  Plaintiff’s no-fault carrier had paid plaintiff $100,000 in APIP (additional personal injury protection), which the no-fault carrier has the right to recoup from plaintiff’s tort settlement.

Defendant’s carrier eventually offered defendant’s policy limit of $100,000 to settle plaintiff’s case.  Plaintiff accepted the offer and served a supreme-court order to show cause on plaintiff’s no-fault carrier requesting a declaration that the no-fault carrier’s subrogation rights were limited to extended economic loss (that is, to the portion of the settlement allocable to the category of damages for which APIP benefits were meant to compensate).  Respondent did not oppose supreme court’s adjudicating the dispute over its subrogation rights but contended that plaintiff owed it the full amount of the APIP benefits paid (some $39,500).   Supreme court directed plaintiff to pay the no-fault carrier the full amount of APIP benefits paid.   Plaintiff thereupon formally tendered the amount and pursed his appeal.

The no-fault carrier argued preliminarily that plaintiff’s tender of payment made the appeal moot, but the Fourth Department held that it did not, because the parties’ rights would be affected directly by the outcome of the appeal.

Plaintiff argued that, under the “made whole” rule, the no-fault carrier had no right of subrogation because plaintiff’s damages exceed the amount of the settlement.

[Explanatory note with regard to subrogation: If defendant’s insurance is insufficient to compensate plaintiff fully for plaintiff’s loss, plaintiff retains a right of action against defendant personally.  In those cases where plaintiff has his own insurance that covers the balance of plaintiff’s loss (first-party insurance), and plaintiff’s first-party insurer in fact pays him, plaintiff’s first-party insurer acquires plaintiff’s right to pursue the defendant for the amount that plaintiff’s first-party insurer has paid.  To state it another way, plaintiff’s first-party insurer is subrogated to plaintiff’s claim against defendant.

[The “made whole” rule then provides that if defendant’s insurance is inadequate to fully compensate plaintiff for his losses, plaintiff’s first-party insurer, whom the insured has paid to assume the risk of loss, has no right to share in the proceeds of the insured-plaintiff’s recovery from the tort-defendant.  In other words, plaintiff’s first-party insurer may subrogate against only those funds and assets that remain after plaintiff-insured has been fully compensated.  This designation of priority of interests assures that the injured party’s claim against the tort-defendant takes precedence over the subrogation rights of his first-party insurer.

[Here plaintiff’s own insurer was his no-fault carrier which paid plaintiff “additional personal injury protection” (APIP) benefits, also known as extended economic loss.  Therefore plaintiff’s no-fault carrier would be subrogated only to plaintiff’s recovery after plaintiff was made whole and then only for the portion of settlement attributable to economic loss, not to plaintiff’s pain and suffering.]

Supreme court here, however, refused to apply the made-whole rule or to prorate the settlement between extended economic loss and pain and suffering, and instead had directed plaintiff to pay his no-fault insurer the entire amount of APIP benefits.

The Fourth Department agreed with plaintiff that supreme court should have applied the made-whole rule but remanded the matter for a determination as to (a) whether the settlement made plaintiff whole and (b) what portion of the $100,000 settlement was for plaintiff’s extended economic loss and what portion was for plaintiff’s pain and suffering.

The Fourth Department therefor reversed supreme court’s judgment (which had the additional defect of failing to declare the rights of the parties) and remitted the matter for the required determinations and for a judgment declaring the rights of the parties in accordance therewith.

Grinage v Durawa [in re ACA Insurance Co., respondent], 2016 NY Slip Op 07429 (4th Dep’t Nov. 10, 2016);  http://nycourts.gov/reporter/3dseries/2016/2016_07429.htm.

The Court of Appeals reversed summary judgment to defendant physician vis-à-vis causation, on the ground that defendant’s expert’s affidavit failed to meet defendant’s initial burden on his motion.

Parsing plaintiff’s bill of particulars, a majority of the Court of Appeals (Judges DiFiore, Pigott, Garcia, and Fahey) reversed the First Department’s grant of summary judgment to medmal-defendant physician on proximate causation, on the ground that defendant failed to meet his initial burden on his motion.  The Court of Appeals expressly left open, however, the appropriate standard that governs the opposing party’s burden once the burden shifts to the opposition party in a medmal motion for summary judgment.

Defendant moved for summary judgement on the issue of proximate cause and submitted in support the affidavit of his medical expert which characterized plaintiff’s allegations of malpractice as “center[ed] around an alleged contraindicated prescription by [defendant] to plaintiff of Lipitor separately and/or in conjunction with Azithromycin”.  The majority ruled that plaintiff’s bill of particulars asserted that the negligent CONCURRENT administration of two drugs (Lipitor and azithromycin) proximately caused plaintiff’s injuries, not just that the administration of one drug (Lipitor) exacerbated plaintiff’s adverse reaction to the other (azithromycin).

According to the majority opinion, defendant’s expert did not address the effect of azithromycin administered alone or in conjunction with Lipitor, and addressed azithromycin only in conclusory statements unsupported by any reference to medical research.

In opposition, plaintiff and his experts asserted that defendant’s expert did not adequately address the concurrent azithromycin prescription and did not cite to any medical research in support of his conclusions about the combined effect. Accordingly, plaintiff argued, defendant failed as a matter of law to eliminate all triable issues of fact regarding whether the combined effect of the drugs could have proximately caused plaintiff’s injury (a heart block).

The Court of Appeals sided with plaintiff and held that defendant’s expert proffered only conclusory assertions unsupported by any medical research that defendant’s actions in prescribing both drugs concurrently did not proximately cause plaintiff’s injury and did not adequately address plaintiff’s allegations that the concurrent Lipitor and azithromycin prescriptions caused plaintiff’s injuries. By ignoring the possible effect of the azithromycin prescription, defendant’s expert failed to demonstrate the absence of any material issues of fact as to proximate causation, so defendant was not entitled to summary judgment. And because defendant failed to meet his prima facie burden, it was unnecessary to review the sufficiency of the plaintiff’s opposition papers.

Judge Fahey concurred in the majority decision but wrote separately to emphasize that the Court took no position on the split of authority between the First and Second Departments on plaintiff’s burden of coming forward with evidence once defendant makes his prima facie showing on a motion for summary judgment.

In dissent, Judge Stein, joined by Judge Rivera and Judge Abdus-Salaam, would have affirmed summary judgment to defendant because a fair reading of plaintiff’s bill of particulars showed that plaintiff’s claim centered on plaintiff’s adverse reaction to Lipitor that was exacerbated by prescribing the concurrent administration of Azithromycin.  Because defendant met his initial burden on his motion, the burden should have shifted to plaintiff who failed (in the dissent’s view) to raise a question of fact because of an insurmountable gap between the data relied on by plaintiff’s experts and their conclusion that Lipitor either alone or in conjunction with the other drug caused plaintiff’s injuries. Pullman v. Silverman, 2016 NY Slip Opn 07107 (Nov. 1 2016http://www.nycourts.gov/reporter/3dseries/2016/2016_07107.htm

Business records – affiant’s failure to assert familiarity with plaintiff’s record-keeping practices and procedures was fatal to plaintiff’s motion for summary judgment of foreclosure.

The Second Department reversed summary judgment of foreclosure to plaintiff and awarded defendant-borrower one bill of costs.

Defendant-borrower had executed a note in favor of Original Lender and a mortgage in favor of Mortgage Electronic Registration Systems, Inc. (MERS) acting as nominee for Original Lender.   Original Lender thereafter assigned the mortgage to plaintiff.   Plaintiff commenced this action alleging that defendant had defaulted on his loan payments.  After commencement of the action, plaintiff then assigned the mortgage to Subsequent Assignee, who continued the prosecution of this action under plaintiff’s name as plaintiff.

Defendant answered and asserted as an affirmative defense that plaintiff lacked standing to commence the action.  Plaintiff moved for summary judgment on the complaint and defendant cross-moved for leave to amend his answer to assert certain counterclaims.  Supreme Court granted plaintiff’s motion for summary judgment on the complaint and denied defendant’s cross motion to amend his answer.

Because defendant challenged plaintiff’s standing to commence the action, plaintiff was required to prove prima facie that it had standing in addition to proving prima facie the other elements of its action (to wit, the mortgage, the unpaid note, and defendant’s evidence of default).  To establish prima facie that plaintiff had standing, plaintiff had to demonstrate that it was the holder or assignee of the underlying note when the action is commenced by showing either a written assignment of or physical delivery of the note.

Here, plaintiff failed to establish prima facie that it had either a written assignment or physical delivery of the note.  Plaintiff submitted the affidavit of the assistant secretary of Subsequent Assignee who stated “pursuant to the business records of” plaintiff, plaintiff had physical possession of the note when it commenced the action.  But the assistant secretary of Subsequent Assignee failed to attest that she was personally familiar with the record-keeping practices and procedures of plaintiff.  So the assistant secretary’s assertions based on those records were inadmissible.

Plaintiff unsuccessfully attempted to cure the omission by submitting in reply the affidavit of its vice president, which could not be considered in reply.   And although plaintiff’s motion papers showed that MERS as nominee had assigned the note and mortgage to plaintiff before the action was commenced, plaintiff failed to establish the note had been delivered to MERS before MERS assigned it to plaintiff.   So because plaintiff failed to meet its prima facie burden, Supreme Court should have denied it summary judgment without regard to the sufficiency of defendant’s opposition papers.

But Supreme Court properly denied defendant’s cross motion for leave to amend his answer to assert counterclaims because the counterclaims were either patently devoid of merit or their belated addition would have prejudiced the plaintiff.  Defendant failed to offer a reasonable excuse for his nearly five-year delay in seeking to add them.

Aurora Loan Services, LLC v. Baritz, 2016 NY Slip Op 07154 (Nov. 2, 2016) http://nycourts.gov/reporter/3dseries/2016/2016_07154.htm.

Plaintiff’s motion made midtrial to challenge the sufficiency of defendant’s expert disclosure was properly denied as untimely.  Defendant’s expert disclosure was made timely and the alleged deficiency was apparent upon receipt.

Plaintiff’s decedent entered defendant hospital with symptoms of pneumonia and died early the next morning after being admitted to an area of the hospital that lacked continuous monitoring of patients’ vital signs. The autopsy report identified the cause of death as bronchopneumonia complicated by diabetes.  Decedent’s mother sued for wrongful death and for conscious pain and suffering.

Defendant had timely served CPLR 3101 (d) expert disclosure which stated without more that the expert would testify “on the issue of causation” and “as to the possible causes of the decedent’s injuries and contributing factors.”  Upon receipt of the disclosure, plaintiff had objected solely on the ground that the statement did not provide the dates of the expert’s medical residency, which objection defendant had cured.

At trial, the hospital treating physician testified that decedent’s death was caused in part by pneumonia, but on cross examination stated that he believed decedent instead died from acute cardiac arrhythmia. Plaintiff’s expert also testified that decedent’s death was caused in part by pneumonia, but acknowledged on cross examination that a cardiac event was a possible cause of death.

Immediately before defendant’s expert took the stand, and without requesting an adjournment, plaintiff moved to preclude defendant’s expert from giving any testimony regarding any possible causes of the decedent’s death on the grounds that defendant’s expert disclosure statement did not include “any reasonable detail whatsoever” as to the possible causes of decedent’s death.  The trial court denied the application as untimely. Defendant’s expert then testified that he disagreed with plaintiff’s expert and the autopsy report regarding the cause of death, that decedent’s vital signs instead showed no indication of worsening respiration, that decedent’s other health issues increased his risk for cardiac problems, and that the cause of death was sudden, lethal cardiac arrhythmia.

The jury found defendant liable for failing to place decedent in an area of the hospital with continuous monitoring and awarded plaintiff damages for wrongful death but awarded zero for conscious pain and suffering.  Plaintiff moved under CPLR 4404(a) to strike all testimony about cardiac arrhythmia as the cause of death and to set aside the $0 award for conscious pain and suffering, arguing that the expert disclosure statement failed to include the theory that decedent died of cardiac arrhythmia and so the disclosure was deficient. The trial court again denied the motion as “untimely made at the time of trial.”

The Appellate Division affirmed, holding that plaintiff failed to timely object to the lack of specificity in the expert disclosure statement and that plaintiff was not justified in assuming that the defense expert’s testimony would agree with the autopsy report’s conclusion. The Appellate Division held that where plaintiff’s own proof acknowledged that sudden cardiac arrhythmia was a possibility based on decedent’s medical history and condition, and where evidence in the record supported this theory, the testimony need not be stricken as an unfair surprise. One justice dissented and granted leave to appeal to the Court of Appeals.

Noting that trial courts possess broad discretion in the supervision of expert disclosure, the Court of Appeals affirmed, finding as a matter of law that there was no abuse of discretion as a matter of law: assuming defendant’s disclosure was deficient, the deficiency was readily apparent upon plaintiff’s receipt of the disclosure and no analogy could be made between the issue here of insufficiency and those cases where a party’s disclosure was misleading or where the trial testimony was inconsistent with the disclosure.  The trial court’s ruling did not endorse the sufficiency of the statement but instead addressed the motion’s timeliness. The lower courts were entitled to determine that the time to challenge the statement’s content had passed because the basis of the objection was readily apparent from the face of the disclosure statement and could have been raised and potentially cured before trial.

Lastly, the Court of Appeals rejected plaintiff’s claim that the testimony regarding cardiac arrhythmia should have been excluded as speculative, because there was ample evidence in the record on which to premise cardiac arrhythmia.

Rivera v. Montefiore Med. Ctr., 2016 NY Slip Op 06854 (Court of Appeals Oct. 20, 2016)

http://www.nycourts.gov/reporter/3dseries/2016/2016_06854.htm

CPLR 4518(a), not 4539(b), was the proper basis for admitting a record of testing the simulator solution during a breathalyzer test, because the record was originally created electronically.

The Court of Appeals affirmed County Court’s reliance on CPLR 4518, not CPLR 4539(b), to admit into evidence the People’s exhibit of a record of testing the simulator solution used during the breath test that was administered to defendant. Defendant objected on the ground that the certifications contained within the exhibit did not include a verification to show that the record could not be tampered with pursuant to CPLR 4539(b).

The Court of Appeals noted that CPLR 4539 (b) does not apply to documents like the record of simulator solution testing that were originally created in electronic form.  CPLR 4539(b) applies only when a document that originally existed in hard copy form is scanned to store a digital “image” of the hard copy document, and then a “reproduction” of the digital image is printed in the ordinary course of business.   Subdivision (b), which was added to CPLR 4539 in 1996, requires an authentication by competent testimony or affidavit to include information about the manner or method by which tampering or degradation of the reproduction is prevented when a reproduction is created by any process which stores an image of any writing, entry, print or representation.   CPLR 4539 (a), in turn, allows reproductions made in the regular course of business to be admissible as the original.

Therefore, County Court correctly held that the applicable statute was CPLR 4518(a), which was amended in 2002 to provide that an electronic record shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record.   CPLR 4518(a) further provides that the court may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record, but all other circumstances of the making of the memorandum or record may be proved to affect its weight, and shall not affect its admissibility.

Lastly, County Court properly held that the record of simulator solution testing and the records pertaining to the maintenance and calibration of the breath test instrument were admissible based upon the attached state agency certifications, and County Court did not err in disregarding the inaccurate certifications submitted by the Oneida County Sheriff’s Office with respect to those records.

People v. Kangas, 2016 NY Slip Op 06857 (Court of Appeals Oct. 20, 2016)

http://www.nycourts.gov/reporter/3dseries/2016/2016_06857.htm

Water on locker room floor was not “necessarily incidental to use of the area”.

Water on locker room floor was not “necessarily incidental to use of the area”, so defendant’s motion for summary judgment was properly denied.

 Plaintiff alleged he slipped on water in a locker room in the vicinity of a swimming pool and showers. The majority rejected the argument that water in the locker room was necessarily incidental to the use of the locker room, which would have justified summary judgment to defendant.  The majority distinguished two prior cases granting defendant summary judgment, one where plaintiff slipped on water around an indoor swimming pool and the other where plaintiff slipped on water in the area of the gym’s showers.   In those two previous cases, it had been held that the mere presence of water on a tiled floor adjacent to the gym’s shower or swimming pool could not impart liability because water was necessarily incidental to the use of the area.

But in the present case, plaintiff had left the pool area and he was not in the shower area: he was in a corridor between the pool and the men’s locker room which was a central spot from which a patron could access the showers, sinks, sauna, and steam room as well as the pool-access corridor. The location was also within a few feet of a bathing suit spinner machine and a nearby floor drain.

Plaintiff testified that one of the shower stalls would periodically overflow into the corridor and soak the carpeting at the entrance to the locker room, and that staff periodically placed towels on the carpet at the entrance to the locker room to protect to the carpet.

One member of defendant’s staff testified that the staff mopped the area in question every 15 to 20 minutes, but no one testified as to the last time the area in question was mopped and defendant had no log or check lists of maintenance performed.  The maintenance supervisor testified that the staff put out “wet floor” signs so that the staff didn’t have to mop as often.

Grossman v TCR, 2016 NY Slip Op 06114 (1st Dep’t Sept. 22, 2016) http://nycourts.gov/reporter/3dseries/2016/2016_06114.htm