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 2016

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)

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)

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)

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)

Delaware Supreme Court en banc has construed New York law

Delaware Supreme Court en banc has construed New York law, which governed interpretation of certain excess policies, on the issue of triggers of excess coverage against multiple policy periods for claims of asbestos exposure.   In Re Viking Pump, Inc. and Warren Pumps, LLC Insurance Appeals, (Sup. Ct. DE Sept. 12, 2016)  Plaintiffs were successors in interest to a pump manufacturer that had purchased primary, umbrella, and excess policies.  Plaintiff sought coverage under the predecessor’s excess policies which contained non-cumulation and prior-insurance provisions.

Delaware Supreme Court had previously certified questions to the New York Court of Appeals’ as to (1) the proper method of allocation to be used (all sums versus pro rata) and (2) whether vertical or horizontal exhaustion applied when the underlying primary and umbrella insurance in the same policy period had been exhausted.   The New York Court of Appeals had ruled on the certified questions on May 3, 2016 that pro rata allocation is inconsistent with non-cumulation and non-cumulation/prior insurance provisions, that all sums allocation was appropriate for policies containing the provisions at issue, and that the excess policies were triggered by vertical exhaustion of the underlying available coverage within the same policy period.   In the Matter of Viking Pump, Inc. and Warren Pumps, LLC, Insurance Appeals , 52 N.E. 3d 1144 (May 3, 2016) .

In this 83-page opinion, the Delaware Supreme Court conducted a de novo review of Chancery Court’s grant of summary judgment and of Superior Court’s contract interpretations made at trial and held that

  • the excess policies had been validly assigned to the successors in interest,
  • the primary policies had be exhausted, and
  • the trigger of coverage under the excess policies was New York’s operative injury-in-fact trigger:

As to a person who ultimately develops lung cancer, mesothelioma, or nonmalignant asbestos-related disease, bodily injury first occurs, for policy purposes, upon cellular and molecular damage caused by asbestos inhalation, and such cellular and molecular damage occurs during each and every period of an asbestos claimant‘s significant exposure to asbestos and continues thereafter.  The duty to defend is based on the possibility of coverage, reflected in the pleadings‘ allegations. The duty to indemnify derives from whether the basis for Warren or Viking‘s liability to the injured claimant is actually covered by the policy.

In Re Viking Pump, Inc. and Warren Pumps, LLC Insurance Appeals, (Sup. Ct. DE Sept. 12, 2016)

Plaintiff stone mason’s motion for summary judgment on liability under Labor Law §240(1)

Plaintiff stone mason’s motion for summary judgment on liability under Labor Law §240(1) was properly denied because of inconsistencies in his description of how the accident happened.  Plaintiff was the sole witness to his accident.  Plaintiff fell when he was attempting to descend via a scaffold from the roof of the building where he had been building a parapet wall.  Questions of fact existed both as to whether he was a recalcitrant worker and as to whether plaintiff’s acts were the sole proximate cause of the accident.

Regarding “recalcitrant witness”, plaintiff testified that although he had his own harness, there were no safety ropes at the site to attach to the harness or to the scaffold and that he would have been fired if he had delayed the job until safety ropes were obtained.  Plaintiff’s foreman testified that

  • he (the foreman) had instructed all workers including plaintiff to wear safety equipment,
  • that he and plaintiff had worn attached harnesses while working together earlier that day,
  • that when he (the foreman) had left earlier in the day, he left plaintiff in charge of the work site and asked plaintiff to finish the job, and
  • he (the foreman) never told plaintiff that plaintiff was expected to work on the roof with a properly attached harness.

From the  concurring opinion, we learn that the foreman averred in his affidavit that on the day of the accident, when he and plaintiff stood on the pipe scaffold as they worked, they wore properly secured harnesses, and that photographs taken soon after the accident showed safety ropes were in fact present.

Held:  This conflicting testimony created a triable issue as to whether plaintiff recalcitrantly failed to use available equipment that he had been directed to use and that, if used, would have averted his injuries.

Regarding sole proximate cause (i.e, whether Labor Law §240(1) had been violated), there was a question of fact as to whether plaintiff fell because of movement of the scaffold or, alternatively, because plaintiff’s losing his footing was unaccompanied by any failure of the scaffold.  These two versions of how the accident happened, each given by plaintiff, the sole witness to the incident, were inconsistent with each other and created a question of fact as to whether plaintiff’s fall was caused by a failure of a safety device within the purview of §240(1).

A fall from a scaffold or ladder in and of itself does not result in an award of damages to an injured party.  Rather, §240(1) liability depends upon the injury having resulted from the failure to use or the inadequacy of a device within the purview of the statute.  There is no liability under section 240(1) when there is no violation and the worker’s actions are the sole proximate cause of the accident.

Albino v. 221-223 West 82 Owners Corp., 2016 NY Slip Opn 05953 (1st Dep’t Sept. 8, 2016)

Parties’ stipulation to liability caused interest to run from the subsequent damages verdict.

Defendant stipulated to liability two and one-half years before the trial on damages.  In the stipulation conceding liability, plaintiff withdrew her claim for punitive damages and the parties agreed that the action would be on the issue of damages with recovery to be capped at a certain amount.  The stipulation contained no provision as to prejudgment interest on the verdict.

After the damages trial was held, Supreme Court computed interest from the date of the jury verdict on damages, not from the date of the stipulation, and the Second Department affirmed.

CPLR 5002, which applies to personal-injury actions, states:

Interest shall be recovered upon the total sum awarded, including interest to verdict, report or decision, in any action, from the date the verdict was rendered or the report or decision was made to the date of entry of final judgment. The amount of interest shall be computed by the clerk of the court and included in the judgment.

Emph. supplied.

When the determinations of liability and damages are made together, the computation of prejudgment interest under CPLR 5002 is straightforward. But when the determinations of liability and damages are bifurcated, prejudgment interest under CPLR 5002 runs from the date of the “verdict, report or decision” on liability, rather than from the date of the “verdict, report or decision” on damages.   But a stipulation between the parties does not constitute a “verdict, report or decision” because stipulations are not adjudications made by a third party.  They are voluntary agreements or contracts by which the parties themselves chart their own course.  Here the stipulation addressed not only the issue of liability but also the cause of action for punitive damages, and it imposed a cap on plaintiff’s recovery.

What does constitute a “verdict, report or decision”?  The determination of liability by an adjudicative body, such as a jury, a court, or an arbitrator such as decisions on motions for summary judgment; motions for leave to enter a default judgment and motions to strike a defendant’s answer; decisions on unopposed applications for a directed verdict on the issue of liability; and binding arbitrators’ awards .  When a court has ordered a referee to “hear and report with recommendations,” pre-judgment interest is computed not from the date of the referee’s report, but from the date on which a court has confirmed it and thus made it binding.  An appellate court’s order reversing the denial of a plaintiff’s motion for summary judgment on the issue of liability starts interest running from the date of the appellate court’s decision.

Plaintiff’s argument that the law favors stipulations was unavailing.  Had the Legislature intended CPLR 5002 to include stipulations, it could have included them, as it has in other statutes [citations omitted].

Here the two-and-one-half-year difference between the determinations of liability and damages amounted to prejudgment interest of $90,000, which difference would have been compounded because prejudgment interest is added to the total amount of the judgment, and post-judgment is computed on the total amount of the judgment including prejudgment interest.

Mahoney v. Brocklebank, 2016 NY Slip Op 05630 (2d Dep’t July 27, 2016)

For plaintiff’s willful spoliation of electronic evidence, the First Department awarded defendant an adverse inference charge at trial plus a $10,000 discovery sanction but did not dismiss plaintiff’s complaint.

Plaintiff/former client sued defendant/former attorney for legal malpractice regarding defendant’s representation of plaintiff in negotiating a construction loan to Developer/Borrower.  The loan closed on May 8, 2007 and Developer/Borrower defaulted in July of 2008.  In June of 2008, plaintiff retained counsel to sue defendant for legal malpractice.  Plaintiff commenced suit in 2011 alleging alleged that in 2007 defendant misadvised plaintiff about zoning issues that led to the revocation of building permits after a crane collapsed at the site, causing Developer to default.  Defendant countered the suit with defenses that plaintiff would have issued the loan regardless of any zoning issues and that plaintiff later assigned the loans and/or failed to mitigate its damages.

The decision states that plaintiff’s obligation to preserve evidence arose at least as early as June 2008 when it retained counsel to pursue defendant for legal malpractice.  But plaintiff waited until May of 2010 to issue a formal litigation hold, so that until May of 2010, plaintiff’s internal electronic record destruction policies continued the recycling of backup tapes, the deletion of employees’ emails stored in their inboxes and sent items folder, and the erasure of departing employees’ hard drives and emails accounts after the employees left the firm.  In addition, plaintiff’s CEO deleted his emails on regular basis during the pertinent time period so that only one of his emails from the relevant period was produced, and plaintiff produced no emails from its executive vice president of structured finance, who was involved in the transaction.

In June of 2014, on defendant’s original motion for sanctions for spoliation, defendant moved to dismiss plaintiff’s complaint.  Supreme Court ruled that plaintiff’s failure to preserve that evidence was ordinary negligence and granted defendant an adverse inference charge at trial under PJI 1:77.  Plaintiff did not appeal that order.

Six weeks later, plaintiff belatedly produced meeting minutes that identified eight more employees who were involved in the transaction and which further revealed the extent to which plaintiff failed to identify all of the key players in the transaction and failed to preserve their electronic records. Plaintiff claimed that its tardy disclosure of those meeting minutes was inadvertent.  Defendant renewed its spoliation motion via the motion at issue on this appeal as to the eight additional witnesses whose electronic evidence had likewise been destroyed either due to plaintiff’s failure to institute a timely litigation hold, or because of plaintiff’s deliberate destruction of the evidence.  Supreme Court held that plaintiff’s destruction of this additional evidence was at a minimum gross negligence, so the evidence was properly presumed to have been intentionally lost or destroyed, and Supreme Court dismissed plaintiff’s complaint as a sanction.

The First Department held that dismissal of the complaint was too drastic, stating that the sanction must reflect “an appropriate balancing under the circumstances” and that dismissal of the complaint is warranted only where the spoliated evidence constitutes “the sole means” by which the defendant can establish its defense, or where the defense was otherwise “fatally compromised”, or where defendant is rendered “prejudicially bereft” of its ability to defend as a result of the spoliation.

Here, defendant’s motion to renew did not support such a finding because of the massive amount of documents that had been produced and the availability of the fourteen key witnesses, including the additional eight upon whom defendant had yet to serve interrogatories and deposition notices.  Therefore the adverse-inference charge in favor of defendant on its defenses plus the monetary discovery sanction of $10,000 against plaintiff was sufficient.  But the First Department noted that this decision was without prejudice to defendant’s seeking dismissal or other sanctions should there be further revelations of plaintiff’s spoliation.

Arbor Realty Funding, LLC v. Herrick, Feinstein LLP, 2016 NY Slip Op 05065 (1st Dep’t June 28, 2016)

Plaintiff is entitled to an adverse-inference charge to the jury for defendant’s failure to preserve security video, which defendant had consented to a court order to preserve, but defendant’s answer and affirmative defenses would not be stricken.

Plaintiff slipped and fell on ice in defendant bank’s parking lot.  Before commencement of his action, plaintiff sought an order for pre-action disclosure and preservation of evidence. Defendant opposed the motion but represented to the motion judge that defendant had voluntarily preserved evidence including accident reports, photographs, and surveillance videotapes.  Defendant also consented to an order of preservation of those items.  During discovery after the action was commenced, plaintiff requested surveillance films related to the subject accident, and defendant responded that those materials had not been preserved.  (The dissenting opinion reveals that defendant’s business practice was to automatically overwrite the video footage after 90 days, and plaintiff’s motion and the resulting consent order were made more than a year after the accident).

The motion court granted plaintiff’s motion to strike defendant’s answer on the prong of CPLR 3126 that defendant had violated the court’s order of preservation.  The Fourth Department modified the sanction, holding under the alternate prong of CPLR 3126 that defendant’s failure to disclose was willful, but held that the motion court abused its discretion in striking defendant’s answer and affirmative defenses.  The Fourth Department instead gave plaintiff an adverse inference charge at trial with respect to the unavailable security surveillance footage.

The Hon. John M. Curran in dissent argued that willful failure to disclose was not raised below and further that the Fourth Department has excused alleged spoliation of evidence in other circumstances when the evidence was destroyed in good faith before litigation was pending, pursuant to normal business practices, and therefore could not have preserved it.  Justice Curran felt that defendant, however, had negligently destroyed the video because defendant was on notice of plaintiff’s claim before the tape was overwritten.  Justice Curran would have precluded defendant from introducing at trial evidence of the video’s content as part of its direct case.

Sarach v. M&T Bank Corp. 2016 NY Slip Op. 04820 (4th Dep’t June 17, 2016)

Parties cannot stipulate to force the courts to resolve factual issues on cross motions for summary judgment in order to avoid a trial.

In Friends of Thayer Lake LLC v. Brown (May 10, 2016), plaintiffs own land abutting the state-owned William C. Whitney Wilderness Area in the Adirondacks.  The Wilderness Area encompasses in pertinent part a network of lakes, ponds, streams and canoe carries known as the Lila Traverse which permits canoe travel between Little Tupper Lake and Lake Lila.  More specifically, the Lila Traverse includes the Mud Pond Waterway, which is a two-mile-long system of ponds and streams that crosses plaintiffs’ property.  The State Department of Environmental Conservation created an eight-tenth-of-a-mile canoe carry to avoid the Mud Pond Waterway, but defendants maintain that the Mud Pond Waterway is “navigable in fact” and therefore a public highway freely accessible by the boating public.

[Per a N.Y. Attorney General press release dated February 24, 2011 (, plaintiffs initially sued defendant Phil Brown for trespass for paddling the waterway in 2009.  The State of New York moved to intervene and counterclaimed against plaintiffs to require plaintiffs to remove intimidating signs, cameras, and steel cables that plaintiffs had placed across the waterway to prevent kayakers, canoeists, and other boaters from traveling across their property.]

The parties cross-moved for summary judgment seeking a ruling as a matter of law on whether the Mud Pond Waterway is navigable in fact and therefore open to public use.  The parties did not want a trial and jointly requested that Supreme Court rule as a matter of law on their respective motions, contending that the material facts were fully and accurately presented in the record and not significantly in dispute.   Both Supreme Court and the Third Department granted the parties’ request to resolve the dispute as a matter of law, stating that the parties in a civil dispute may chart their own course in litigation and may agree on the factual basis for the resolution of their controversy.

But the Court of Appeals ruled otherwise stating that the parties’ freedom to chart their own course in litigation must yield to certain practicalities, to wit, unresolved questions of fact: a motion for summary judgment requires the movant to demonstrate the absence of any material issues of facts.  Noting the absence of a stipulated statement of facts and an voluminous, detailed and expansive record (which included documents, maps, photographs, letters, articles, guidebooks, video footage, diaries, testimony, and affidavits), the Court of Appeals found conflicting or inconclusive evidence regarding many material facts including the waterway’s historical and prospective commercial utility, its historical accessibility to the public, the relative ease of passage by canoe, and the volume of historical and prospective travel on it.  Because of these questions of fact, the Court of Appeals denied summary judgment to all parties, expressly requiring a trier of fact to weigh the competing evidence, assess the credibility of witnesses, and reach the ultimate conclusion of navigability in fact.

Facts missing from a complaint were supplied by affidavit and should have been considered before dismissing the complaint.

Facts missing from a complaint that were supplied by affidavit in opposition to defendant carrier’s motion to dismiss cured the defect and should have been considered before dismissing the complaint. 

Plaintiff medical provider sued defendant no-fault carrier for treatments plaintiff had rendered to injured auto-accident victims, but the complaint failed to identify the patients treated or the policies under which plaintiff submitted claims for payment.  Defendant moved to dismiss the complaint for failure to state a cause of action under CPLR 3211(a)(7).  In opposition, plaintiff submitted an affidavit of its principal which supplied the missing information.  The First Department reversed the complaint’s dismissal and reinstated the complaint.

The First Department acknowledged that CPLR 3013 requires that a complaint be sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions that form the basis of the complaint and the material elements of each cause of action.  The court further acknowledged the black-letter law that the factual allegations of the complaint are accepted as true and are afforded every possible favorable inference.  But it held, based on prior case law, that a court may freely consider plaintiff’s affidavits to remedy defects in the complaint.  The test is whether plaintiff has a cause of action, not whether plaintiff has stated one.  When such affidavits are considered, dismissal is appropriate only where a material fact claimed by the pleader is not a fact at all and there is no significant dispute regarding that fact.

The First Department further held that plaintiff sufficiently alleged that plaintiff was the assignee of claims and that a question of fact existed as to whether plaintiff failed to appear for examinations under oath, which was a condition precedent to coverage.

High Definition MRI, P.C. v Travelers Cos., Inc., 2016 NY Slip Op 02027, 1st Dept 3-22-16

Insurer’s interpretation was the only reasonable interpretation of an otherwise unambiguous deductible clause in a commercial property insurance policy.

Plaintiff insured owned a fuel oil terminal on the East River in Port Morris, Bronx County. Defendant insurer issued a commercial property insurance policy to plaintiff which covered in pertinent part the Port Morris facility up to a policy limit of $2,500,000.

The policy provided that “2% of the total insurable values at risk per location subject to a minimum of $250,000” would be deducted from each adjusted claim arising out a flood “occurrence”. At issue in the case was the interpretation of the phrase “total insurable values at risk per location”.

The total value for the Port Morris facility was listed on the policy’s “Schedule of Locations Endorsement” as being $124,701,000. A note at the bottom of that endorsement stated that the values listed on the endorsement were for premium purposes only. A separate endorsement confirmed that plaintiff had provided the values listed on the “Schedule of Locations Endorsement”.

In October 2012, flooding from Superstorm Sandy damaged the Port Morris Terminal and plaintiff submitted a claim to defendant for $2,284.239.95. Defendant denied plaintiff’s claim as being less than the amount of the deductible of $2,494,020.

Plaintiff moved for summary judgment contending that the deductible was $250,000, being two percent of the $2.5 million dollar policy limit. Defendant opposed plaintiff’s motion and cross-moved for summary judgment dismissing the complaint, contending that the deductible was $2,494,020, i.e., 2% of the $124,701,000 valuation for the Port Morris terminal listed on the Schedule of Locations Endorsement. Under defendant’s calculation, there was only $5,980 of coverage between the amount of the deductible and the policy limit for the Port Morris facility. The Second Department granted defendant’s motion.
Applying standard rules of contract construction, the Second Department stated that it agreed with the parties that the deductible clause was unambiguous and held that defendant’s interpretation of the phrase ‘”total insurable value” was the only reasonable one. The Second Department stated that to an average insured , “risk” in the phrase “total insurable values at risk per location” means “risk of loss”. In deciding how much coverage to buy, the average insured is concerned with the value of what is at risk and takes into account the likelihood of significant loss and the cost of insurance. The amount of insurance that the average insured chooses to buy is not the same as the “total insurable values at risk”, so the average insured could not reasonably conclude that the “total insurable values at risk” referred to a limit of coverage that was less than the total amount at risk. Therefore, the only reasonable expectation as to the meaning of the phrase “total insurable values at risk” was the insured’s own risk of loss and damage.
The Second Department held that plaintiff’s interpretation was unreasonable, because it rendered the $250,000 minimum deductible superfluous, and likewise rejected plaintiff’s contention that the note on the Schedule (which stated that the listed values were for “premium purposes only”) precluded those values from being used as “total insurable values”. The Second Department stated that the reasonable interpretation of that note was that the values were being used only to determine the premiums, not to set policy limits. Therefore, the listed values could be used to calculate the applicable flood deductible (the deductible being relevant in determining the amount of the premium).
Castle Oil Corp. v ACE Am. Ins. Co., 2016 NY Slip Op 01632, 2nd Dept March 9, 2016

Defendant landscaper and its insurer were liable as a matter of law under Nav. Law article 12 for oil spill caused by Landscaper’s severing fuel oil lines to homeowners’ house.

Defendant landscaper and its insurer were liable as a matter of law under Nav. Law article 12 for oil spill caused by Landscaper’s severing fuel oil lines to homeowners’ house.

In the plaintiff-homeowners’ action for clean-up costs due to a fuel-oil spill, the Second Department affirmed summary judgment to plaintiff homeowners against defendants Landscaper and its Insurer.  The Landscaper’s employee had severed an underground fuel line to plaintiffs’ home while repairing a sprinkler system and shortly thereafter, plaintiffs began experiencing problems with their home heating system.  Plaintiffs called defendant Oil Company, which sent a technician who inspected the heating system and found no problem.  The Oil Company thereafter delivered 700 gallons of fuel oil to plaintiffs’ home which discharged into the ground.

The Second Department affirmed summary judgment to plaintiffs against the Landscaper and its Insurer under Nav. Law §181(1), which mandates strict liability for clean-up costs against a person who has “discharged petroleum”.  Under Navigation Law article 12, “discharge” includes “any intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of petroleum”, and plaintiff was entitled to sue not only the discharger but also the discharger’s insurer.

The Landscaper admitted that its employee severed the line, and the Insurer tacitly conceded insurance coverage for the incident.  Defendants failed to create an issue of fact by questioning the depth of the fuel lines and lack of warning signs, because there was no evidence of any leaks or defects with the heating system or fuel lines before the lines were severed.  Defendants’ contention that discovery was needed on those issues was speculative.

Bennett v. State Farm Fire & Cas. Co., 2016 NY Slip Op. 01452 (2d Dep’t March 2, 2016)

Diagram of accident in police accident report should have been redacted before the report was admitted into evidence.

Diagram of accident in police accident report should have been redacted before the report was admitted into evidence, because the police officer did not see the accident, the eye witness who supplied the information was under no business duty to report the information to the officer, and the diagram bore directly on the issue of liability.

In an action for wrongful death and conscious pain and suffering action, the Second Department reversed plaintiff’s verdict and ordered a new trial on liability because the police accident report admitted into evidence contained an inadmissible diagram of the scene.  Plaintiff’s decedent was a pedestrian who was struck by a hit-and-run driver.  In the liability portion of the trial, an eye witness testified that he saw a motor vehicle strike the decedent, but he also testified that he did not see the decedent before the accident, did not see any vehicle come into contact with the decedent, and that the first time he saw the decedent he thought she had fallen out of the back window of an SUV.  Over MVAIC’s objection, the trial judge admitted into evident a police accident report without redacting a diagram showing the decedent crossing the street in front of the unidentified vehicle that allegedly struck decedent.  The liability-phase jury found the unidentified hit-and-run driver liable. During the damages phase of the trial, the jury rendered a verdict of $39,000 for wrongful death and $500,000 for conscious pain and suffering.

The Second Department reversed the verdict on liability and remanded for a new trial on liability, holding that the diagram because the information came from witnesses not engaged in police business when the diagram was drawn, and the information satisfied no other hearsay exception (there was no information that the eye witness was under a business duty to supply the information). The diagram was harmful error because it bore directly on the issue of liability, which was for the jury to decide.

Wynn v. Motor Veh. Acc. Indem. Corp, 2016 NY Slip Opn 10484 (2d Dep’t March 2, 2016)