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DEFENDANT'S BELATED ATTEMPT TO "APPEAR" FOR EBT BY TELEPHONE FAILS
|Allstate Ins. Co. v Rasoul|
|2012 NY Slip Op 51679(U)|
|Decided on August 30, 2012|
|Appellate Term, First Department|
|Edited by Lawrence N. Rogak|
Defendant appeals from (1) an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered July 23, 2008, which granted plaintiff's motion to strike the answer pursuant to CPLR 3126, (2) an order (same court and Judge), entered August 6, 2008, which denied, as moot, defendant's motion for summary judgment dismissing the complaint, and (3) a judgment (same court and Judge), entered May 19, 2009, after an inquest, in favor of plaintiff and awarding it damages in the principal sum of $8,245.08. Affirmed.
Defendant's demonstrated failure to comply with three separate court orders directing him to appear for deposition gave rise to an inference of willful and contumacious conduct (see Mei Yun Zhang v Santana, 52 AD3d 484 ; Duncan v Hebb, 47 AD3d 871 ). In the absence of a reasonable excuse for defendant's prolonged disobedience, the striking of his answer was a proper exercise of discretion (see Figiel v Met Food, 48 AD3d 330 ).
We also reject defendant's claim that he appeared at the deposition. His attempt to appear and submit to deposition by telephone was ineffective and therefore properly rejected, since there was neither a stipulation between the parties (see CPLR 3113[d]) nor a court order authorizing this procedure (see Connors, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C3113:8)
GO KNOW: A CHUPAH IS A "STRUCTURE" FOR PURPOSES OF LABOR LAW
Note: A "chupah" is a canopy, usually made of fabric supported by wooden posts, under which a bride and groom perform a traditional Jewish wedding ceremony. -- LNR
APPEAL by the defendants, in an action to recover damages for personal injuries, as limited by their brief, from so much an order of the Supreme Court (David I. Schmidt, J.), dated April 27, 2011, and entered in Kings County as, in effect, denied that branch of their motion which was for summary judgment dismissing the cause of action pursuant to Labor Law § 240(1) and granted the plaintiff's cross motion for summary judgment on the issue of liability on the cause of action pursuant to Labor Law § 240(1).
DILLON, J.P.This appeal calls upon our Court to address the factors that should be considered in determining whether a particular item or device qualifies as a "structure" for purposes of Labor Law § 240(1) liability.
The plaintiff, Samuel McCoy, was employed as a truck driver by nonparty Atlas Florists (hereinafter Atlas). On August 23, 2008, a wedding ceremony was conducted at a catering facility of the defendant Abigail Kirsch at Stage 6 (hereinafter Abigail Kirsch), which involved the use of a wedding chupah. A chupah is a canopy under which brides and grooms stand during weddings conducted in the Jewish religious tradition.
In the early morning of August 24, 2008, after the wedding celebration had ended, the plaintiff was disassembling the chupah, which was owned by Atlas. The chupah was a 10-foot-high device made of pipe, wood, and a fabric canopy at its top. The chupah's frame consisted of metal pipes that were 10 feet long and 3 inches wide, assembled to each other, and its vertical supports were attached to 4 steel plates on the floor. The plaintiff worked on disassembling the chupah from a six-foot high aluminum ladder supplied by his employer, on which two feet allegedly were missing. To perform the disassembly, the plaintiff was required to use a pipe wrench, a florist knife, wire cutters, and the ladder. A few minutes into disassembly, while a coworker was holding the ladder and the plaintiff was standing on the third rung from the top of the ladder, the ladder slipped and the plaintiff fell to the floor, sustaining injuries.
In February 2009, the plaintiff commenced this action against Abigail Kirsch, Abigail Kirsch at Tappan Hill, LLC, Steiner Studios NYC, LLC, Steiner NYC, LLC, Steiner Building NYC, LLC, and Steiner Studios, LLC (hereinafter collectively the defendants), alleging causes of action, inter alia, to recover damages for violation of Labor Law § 240(1). After discovery, the defendants moved for summary judgment dismissing, among other things, the Labor Law § 240(1) cause of action. At issue was whether the chupah that the plaintiff was disassembling at the time of his accident was a "structure" within the scope and meaning of the Labor Law. The defendants argued that the chupah was not a structure, and hence, that they were entitled to judgment as a matter of law dismissing the Labor Law § 240(1) cause of action. The plaintiff opposed the motion and cross- moved for summary judgment on the Labor Law § 240(1) cause of action, arguing that the chupah was a structure and that he could recover under Labor Law § 240(1).
In the order appealed from, the Supreme Court, Kings County, inter alia, denied that branch of the defendants' motion which for summary judgment dismissing the Labor Law § 240(1) cause of action and granted the plaintiff's cross motion, finding that the chupah was a structure within the protections afforded by Labor Law § 240(1).
For the reasons set forth below, we affirm.
Labor Law § 240(1) imposes upon owners and general contractors a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites (see McCarthy v Turner Constr., Inc., 17 NY3d 369, 374; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500; Rocovich v Consolidated Edison Co., 78 NY2d 509, 512-513). Absolute liability is imposed upon owners and contractors who violate the statute by failing to provide or erect necessary safety devices for the protection of workers exposed to elevation-related hazards, and where such failure is a proximate cause of the accident (see Rocovich v Consolidated Edison Co., 78 NY2d at 513; Bland v Manocherian, 66 NY2d 452, 459; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 521; Henry v Eleventh Ave., L.P., 87 AD3d 523, 524). The statute's provisions are expressly applied "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure" (Labor Law § 240 [emphasis added]).
Over a century ago, the Court of Appeals made clear that the meaning of the word "structure," as used in the Labor Law, is not limited to houses or buildings (see Caddy v Interborough R.T. Co., 195 NY 415, 420). The court stated, in pertinent part, that "the word structure' in its broadest sense includes any production or piece of work artificially built up or composed of parts joined together in some definite manner" (id. at 420).
Since the Legislature definitionally applied Labor Law § 240(1) to buildings or structures, a structure, by implication, may include constructs that are less substantial and perhaps more transitory than buildings. Indeed, courts have applied the term "structure" to several diverse items such as a utility pole with attached hardware and cables (see Lewis-Moors v Contel of N.Y., 78 NY2d 942, 943; Girty v Niagara Mohawk Power Corp., 262 AD2d 1012, 1013), a ticket booth at a convention center (see Panico v Advanstar Communications, Inc., 92 AD3d 656), a substantial free-standing Shell gasoline sign (see Smith v Shell Oil Co., 85 NY2d 1000, 1001), a shanty located within an industrial basement used for storing tools (see Henry v Eleventh Ave., L.P., 87 AD3d at 523-524), a crane used for construction (see Cun-En Lin v Holy Family Monuments, 18 AD3d 800, 801; Cornacchione v Clark Concrete Co., 278 AD2d 800, 801), a power screen being assembled at a gravel pit (see Hodges v Boland's Excavating & Topsoil, Inc., 24 AD3d 1089, 1091), a pumping station (see Cabri v ICOS Corp. of Am., 240 AD2d 456, 457), a utility van (see Moore v Shulman, 259 AD2d 975), and a window exhibit at a home improvement show (see Sinzieri v Expositions, Inc., 270 AD2d 332, 333). All of the foregoing items and devices meet the standard set forth by the Court of Appeals in Caddy that constituent parts be artificially built up or joined together in a definite, deliberate manner (see Caddy v Interborough R.T. Co., 195 NY at 420).
Conversely, items that have been held to not qualify as structures include temporary decorations to a building used as a set for a television film (see Tanzer v Terzi Prods., 244 AD2d 224), a sign hung from a ceiling (see Kretschmar v New York State Urban Dev. Corp., 13 AD3d 270, 270-71), commercial dishwasher machines (see Chuchuca v Redux Realty, 303 AD2d 239, 239-240), and, of particular interest here, a decorative wooden disc suspended from a ceiling for use as a ceremonial wedding canopy (see Stanislawczyk v 2 E. 61st St. Corp., 1 AD3d 155). The characteristics of those items fall short of the Caddy definition.
Whether an item is or is not a "structure" is fact-specific and must be determined on a case-by-case basis. In determining each case, courts may consider a number of relevant factors. These factors should include, but are not necessarily limited to, the item's size, purpose, design, composition, and degree of complexity; the ease or difficulty of its assembly and disassembly; the tools required to create it and dismantle it; the manner and degree of its interconnecting parts; and the amount of time the item is to exist. However, no one factor should be deemed controlling.
We find that in this case and upon consideration of all relevant factors, the Supreme Court properly held that the chupah at Abigail Kirsch was a "structure" within the intended scope of Labor Law § 240(1). In this action, the chupah consisted of various interconnected pipes 10 feet long and 3 inches wide, secured to steel metal bases supporting an attached fabric canopy. A ladder plus various hand tools were required to assemble and disassemble the chupah's constituent parts in a process that would take an experienced worker more than a few minutes to complete [FN1]. The chupah here is more akin to the things and devices which the courts of this state have recognized as structures than to the things and devices that have not been recognized as structures.
This is not to say that every chupah qualifies as a structure under Labor Law § 240(1). Undoubtedly, there are wide variations of chupahs, some involving a series of durable interconnected parts, and others being much more simple and merely decorative in nature. Whether or not a chupah qualifies as a "structure" under Labor Law § 240(1) requires a consideration of more than only the purpose for which it is used. For example, the assembled pipe, wood, and fabric chupah in this matter consisted of intricate, interconnected parts, whereas, the wedding canopy in Stanislawczyk v 2 E. 61st St. Corp. (1 AD3d 155), a case upon which the defendants heavily rely, was suspended from a ceiling and was not itself assembled or interconnected with any other object. While the items here and in Stanislawczyk may have been used for the same ultimate purpose, the items themselves were, in a structural sense, vastly different from one another, one being a simple one-piece object, and the other being a collection of attached pieces of wood, metal, and fabric.
Accordingly, we affirm the order insofar as appealed from.
BALKIN, LEVENTHAL and CHAMBERS, JJ., concur.
ORDERED that the order is affirmed insofar as appealed from, with costs.
FootnotesFootnote 1:The plaintiff testified that prior to the accident, before disassembly was complete, he had worked approximately 10 minutes on the disassembly.
FEDERAL, NOT STATE, STANDARD OF CARE
APPLIES TO UPSTATE NEW YORK AIR CRASH SUIT
Defendants, Colgan Air, Inc. (hereinafter "Colgan") and Pinnacle Airlines Corp. (hereinafter "Pinnacle") have moved this Court for an order directing that plaintiffs' claims be subject to a federal standard of care. Colgan and Pinnacle take the position that the Federal Aviation Act of 1958 ("FAACT") and Federal Aviation Regulations ("FARS") promulgated thereto, preempt all state law negligence standards of care. On the other hand, plaintiffs argue that New York State's negligence standard of care should govern these cases. They say that if federal law preempts an ordinary negligence standard of care, their clients' claims of negligent training, hiring and retention would be effectively barred.
Plaintiffs' decedents were among fifty individuals who were tragically killed when Continental Connection Flight 3407 crashed in Clarence Center, New York. Plaintiffs' claims venture far beyond alleging that the pilot of the airplane, Captain Marvin Renslow, was negligent in his operation of the aircraft. Plaintiffs say that Colgan and Pinnacle were directly negligent in hiring, training and retaining Renslow, who they claim, had a history of failed flight tests and exhibited other unsafe tendencies as a pilot.
By applying the doctrine of implied preemption, plaintiffs say the Court will restrict plaintiffs to examining whether Renslow took and passed various flight tests, thereby satisfying certain discreet federal regulations. Escaping scrutiny would be the subjective conduct of Colgan and Pinnacle, to wit: allegedly ignoring the professional shortcomings of Renslow and thereafter negligently hiring and retaining him as a pilot - conduct which, they say, is not the subject of the FAACT or any of it's associated regulations.
The defendants counter that the law is clear. The FAACT and FARS impliedly preempt all state standards of care. In order to prevail, the plaintiffs, whose state remedies are expressly preserved under the FAACT, must still prove that defendants violated a federal standard of care as established by the FAACT and FARS.
The genesis of Congress' power to preempt state law lies in the United States Constitution which provides that the laws of the United States "shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." U.S. Const., Art. VI, cl. 2.
Federal preemption may be express or implied. Express preemption is not claimed in this case, but implied preemption is. Preemption of a state law may be implied "if that law actually conflicts with federal law", see Pacific Gas & Elec. Co. v State Energy Resources Conservation and Dev. Comm'n, 461 US 190, 204, 75 L.Ed. 2nd 752, 103 S.Ct. 1713 , or if federal law so thoroughly occupies a legislative field "as to make reasonable the inference that Congress left no room for the States to supplement it." Fidelity Fed. Sav. & Loan Assn. v Dela Cuesta, 458 US 141, 153, 73 L.Ed, 2nd 664, 103 S.Ct. 3014  (quoting Rice v Santa Fe Elevator Corp., 331 US at 230); Cipollone v Liggett Group, Inc., 505 US 504, 516, 120 L.Ed. 2nd 407, 112 S.Ct. 2608 . (Internal quotations omitted).
Any analysis of preemption issues must begin by acknowledging that there exists "a rebuttable presumption against the preemption of the states' exercise of their historic police power to regulate safety matters." Goodspeed Airport, LLC. v East Haddam Inland Wetlands & Watercourses Comm'n, 634 F 3rd 206 [2nd Cir. 2011]. Thus, the question before this Court is whether defendants have overcome that presumption by showing that Congress intended "to occupy the entire field of air safety, thereby preempting state regulation of that field." Goodspeed, id at 208.
Defendants point to a litany of Federal cases to support their claim of field preemption. See Goodspeed, id; US Airways, Inc. v O'Donnell, 627 F 3rd 1318 [10th Cir. 2010]; Montalvo v Spirit Airlines, 508 F 3rd 464 [9th Cir. 2007]; Greene v Goodrich Avianics Sys., Inc., 409 F 3rd 784 [6th Cir. 2005]; Abdullah v American Airlines, Inc., 181 F 3rd 363 [3rd Cir. 1999]; French v PanAm Express, Inc., 869 F 2nd 1 [1st Cir. 1989]. Moreover, defendants point to the decision of Judge Skretny in the parallel actions involving Flight 3407, which are pending in the District Court, Western District of New York. There, the Court found in favor of Federal preemption of state standards of care, while preserving plaintiffs' state remedies under New York law. In Re: Air Crash Near Clarence Ctr., 798 F.Supp. 2nd 481 [W.D.NY 2011].
All of these decisions are founded on the premise that the FAACT and FARS "thoroughly occupy" the field of aviation safety by establishing "complete and thorough safety standards for interstate and international air transportation that are not subject to supplementation by, or variation among, jurisdictions." See Abdullah, supra at 367.
However, the decisions submitted by the defendants do not create an absolute case for Federal implied preemption. InGoodspeed, supra, the Second Circuit found a "Congressional intent to preempt," yet found that the requirements of a Connecticut wetlands permitting statute did not create a sufficient interference with federal regulation, so as to fall within the scope of the field of aviation regulation. Goodspeed, supra at 211. Here, defendants stress that not only would the application of state standards of care interfere with the federal statutory scheme but could also lead to air carriers having to comply with dozens of different standards of care.
In Abdullah, the Third Circuit found that "the entire field of aviation safety is federally preempted", supra at 375, and held that "state and territorial standards of care in aviation safety are federally preempted". supra at 376. Eleven years later, the Third Circuit retreated somewhat from its holding in Abdullah when it decided Elassaad v Independence Air, Inc., 613 F 3rd 119 [3rd Cir. 2010]. The plaintiff in Elassaad fell from a staircase while exiting the defendant's airplane after it landed. The Court pointed out that inAbdullah it found that the preemptive field was "air safety". Abdullah, supra at 376. In Elassaad it clarified that "air safety" meant "safety while a plane is in the air flying between the origin and destination." Elassaad, supra at 127. Thus, the Court found that "supervision of the disembarkation process by a flight crew [fell] outside the bounds of what [the Court was] considering inAbdullah." Elassaad supra at 127.
There can be no question that the allegations in the plaintiffs' complaints, as amplified by their bills of particulars, fall squarely within the broad field of air safety. Whether it be Captain Renslow's direct negligence in operating the aircraft or Colgan's and Pinnacle's negligence in training, hiring and retaining Renslow, the conduct alleged is claimed by plaintiffs to be a substantial factor in causing the crash of Flight 3407.
Plaintiffs' push to have the court apply a state standard of care begins with a point of law with which defendants do not disagree. Namely, that the FAACT contains a savings clause which preserves state remedies. The savings clause provides: "[a] remedy under this part is in addition to any other remedies provided by law." 49 USC §40120(c). Plaintiffs first contend that the savings clause preserves not only state remedies but also common law duties of care. There is no question that state remedies are preserved. See Abdullah, supra at 375, Cleveland v Piper Aircraft Corp., 985 F 2nd 1438, 1442-1443 [10th Cir. 1993]. However, plaintiffs point to no case which holds that state standards of care are encompassed by the savings clause.
Plaintiffs also contend that there is nothing in the language of the FAACT or FARS or in the legislative history that is indicative of any Congressional intent to displace common law reasonable care standards. After all, they argue, "the FAACT empowers the FAA to prescribe minimum safety standards' for commercial airline operators, 49 USC §44701(b)(1) and to further the FAACT's general purpose of promoting the duty of an air carrier to provide service with the highest possible degree of safety in the public interest.' 49 USC §44701(d)(1)(A)." See Plaintiffs' Memo of Law, pg. 15. They further point out that the use of the phrase "minimum safety standards" is indicative of the intent of Congress to create "only a floor" leaving "adequate room for state tort law to operate."Grier v Am. Honda Motor Co., 529 US 861 at 868, 120 S.Ct. 1913, 146 L.Ed. 914 . And they contend that that intent includes preservation of state common law standards of care.
Thirdly, plaintiffs have encouraged this court to take a close look at the action and inaction of Congress in dealing with preemption issues since the passage of the FAACT. However, none of the legislation or proposed legislation cited by plaintiffs convince this court that Congressional intent, apparent within the provisions or history of those laws or proposed laws, may be transmuted to the FAACT. The failure of Congress to restrict state law standards of care is equally unavailing.
Lastly, plaintiffs ask this court to apply state standards of care because, at least with respect to their claims of negligent hiring, training and retention, state standards do not conflict or interfere with federal law. The standard of care in New York State is measured against the conduct of a reasonably prudent person under the same or similar circumstances. See P.J.I. 2:10. Mirroring that standard is the general Federal standard of care established by 14 C.F.R. §91.13 which provides as follows:
"No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another."
14 C.F.R. §91.13(a).
However, as pointed out by defendants, federal law provides specific guidelines for matters affecting air safety. Included are measures governing pilot training, certification and hiring. For example, see §44703 (requirements for airman certificates); 14 C.F.R. §60 et.seq. (requirements for flight simulator training devices, qualification and use; 14 C.F.R. §61 et.seq., (pilot certification); 14 C.F.R. §91 et.seq., (pilot operations); 14 C.F.R. §121 et.seq., (domestic carrier operations); 14 C.F.R. §141 et.seq., (pilot schools) and 14 C.F.R. §142 et.seq., (aviation training centers).
With respect to pilot training, certification and hiring, the regulations appear to be exhaustive. See French v PanAm Express, Inc., supra at 8-9. These regulations pertain to every aspect of flight training, simulator training, testing, pilot qualifications and standards for hiring pilots. As to the latter, Colgan was under a statutory responsibility not to "use an airman . . . unless that person - -
(1) [h]olds an appropriate current airman certificate issued by the FAA;
(2) [h]as any required appropriate current airman and medical certificates in his possession . . .;
(3) [i]s otherwise qualified for the operation for which he is to be used."14 C.F.R. 383 (a).
Other regulations cover areas such as "recent experience", 14 C.F.R. 121.439; "line checks", 14 C.F.R. 121.440 and "proficiency checks", 14 C.F.R. 121.441. Training is extensively covered in Subpart N of Title 14. Qualifications of check airmen and flight instructors are similarly exhaustive. See 14 C.F.R., 121.411-414.
Thus, as found by the Court in French, "the intricate web of statutory provisions affords no room for the imposition of state law criteria vis-a-vis pilot suitability." This conclusion holds notwithstanding that state standards of care may not conflict or interfere with federal law. As stated in French, "so long as occupation of an envisioned field was intended any state law falling within the field is pre-empted'" French, supra at 17-18 (quoting Silkwood v Kerr-McGee Corp., 464 U.S. 238, 248, 78 L.Ed. 2d 443, 104 S.Ct. 615 ).
Admittedly, the application of the doctrine of implied preemption to thwart state standards of care may sometimes affect the ultimate outcome of a case, possibly resulting in dismissal of a claim.
In Montalvo, the Ninth Circuit Court of Appeals adopted the reasoning in Abdullah, and held that "federal law generally establishes the applicable standards of care in the field of aviation safety." Montalvo, supra at 468. One of the state common law claims presented in Montalvo was the airline's failure to warn passengers of the risks of deep vein thrombosis. The Court upheld the dismissal of that claim on the basis that there existed "no federal regulations requiring the airlines to warn about the risks of DVT . . ."Montalvo, supra at 468. Pointing to extensive federal regulations (the FARS) requiring warnings to be given on airline flights (i.e. no smoking, use of seat belts, oral briefing, upright seat backs and the like) the Ninth Circuit found that, at least in the field of in-flight warnings, "the Administrator has exercised his authority to regulate aviation safety to the exclusion of the states." Montalvo, supra at 473.
Such was also the case in Witty v Delta Airlines, Inc., 366 F 3rd 380 [5th Cir. 2004]. While the Witty court refused to adopt the broad preemption rule, it still dismissed the plaintiff's failure to warn claim on more narrowly drawn field preemption grounds. See also Greene, supra. Thus, in Montalvo, Witty and Greene, plaintiffs were thwarted in their pursuit of a remedy which, under different circumstances, would have been available to them under state common law.
That this Court has engaged in a discussion about Montalvo, Witty and Greene should not be taken by defendants as any indication of its opinion concerning the viability of plaintiffs' claims against Colgan and Pinnacle. That issue, if raised by the defendants, is reserved for another day. These cases simply demonstrate that the doctrine of implied field preemption, applied so as to negate state standards of care in the field of air safety, may prevail despite the possibility of adverse consequences to a plaintiff's claim.
In conclusion, this court agrees with the analysis in French and finds that the pervasiveness and completeness of the federal regulatory scheme leaves no room for state standards of care. Defendants have, in this court's opinion, overcome the presumption against preemption and their motion is, in all respects, granted.
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AT DEPOSITION OF NON-PARTY WITNESS, ATTORNEYS MAY OBJECT TO QUESTIONS ON SAME BASIS AS A PARTY
Upon the foregoing papers, it is ordered that plaintiff's motion for a "preliminary injunction" is denied.
In this Labor Law action, plaintiff was allegedly injured during construction at the site of the former World Trade Center. Plaintiff commenced this action against the New York City Transit Authority (NYCTA), the Metropolitan Transportation Authority (MTA), the City of New York (City), the Port Authority of New York and New Jersey (Port Authority), Phoenix Constructors, JV (Phoenix), KTI Phoenix (KTI), and Phoenix Nicholson/E.E. Cruz, LLC (Phoenix Nicholson). All defendants are represented by the same attorney.
Plaintiff subpoenaed non-party Skanska Mechanical Structural Inc. (Skanska) to appear for a non-party deposition. Plaintiff's counsel claims that counsel for defendants contacted plaintiff's counsel to inform him that defendants' counsel was representing Skanska, and that plaintiff's counsel was prohibited from conversing with the Skanska witness to be deposed. Plaintiff now moves for a preliminary injunction enjoining defendants' attorney from representing an employee of non-party Skanska and from instructing/directing that witness not to answer any questions to be posed at Skanska's non-party deposition.
As a threshold matter, plaintiff's motion for a "preliminary injunction" is not, in fact, in the nature of a provisional remedy, but rather pertains to discovery, including informal discovery. To that extent, plaintiff's motion is more in the nature of a protective order and to disqualify defendants' counsel as counsel to Skanksa.
One would hazard to guess that the impetus of plaintiff's motion is Thompson v Mather (70 AD3d 1436 [4th Dept 2010]), which plaintiff cites. In Thompson, the Appellate Division, Fourth Department held:
"We agree with plaintiff that counsel for a nonparty witness does not have a right to object during or otherwise to participate in a pre-trial deposition. CPLR 3113 (c) provides that the examination and cross-examination of deposition witnesses shall proceed as permitted in the trial of actions in open court.'"
As one commentator put it, Thompson "sparked a lively debate among practitioners and commentators." (David Paul Horowitz, You May Say Something, 83 NY St BJ 16 [Sep 2011]; David Paul Horowitz, Just Sit There and Be Quiet, 83 NY St BJ 15 [June 2011]; David Paul Horowitz, May I Please Say Something?, 83 NY St BJ 82 [July/Aug 2011]; see also Patrick M. Connors, 2010 Supp Practice Commentary, McKinney's Cons Laws of NY, Book 7B, CPLR 3113, 2011 Supp Pamph at 29; 232 Siegel's Practice Review, 4th Dep't Says Counsel for Nonparty Witness Has No Right to Object during Deposition, at 4 ["A guest with so cordial an invitation should get a more gracious reception than the Thompson case offers."].)
In Sciara v Surgical Associates of Western New York, P.C., Justice Curran examined Thompson at length:
"Thompson should be read in light of its facts. There, the Fourth Department addressed attempts by a nonparty witness's counsel to object to form and relevance. The relief requested by plaintiff on the motion involved in Thompson excepted out objections for privileged matters' and questions deemed abusive or harassing'. Thus, the facts in Thompson do not support a conclusion that counsel for a nonparty witness is prohibited from protecting his or her client from an invasion of a privilege or plainly improper questioning causing significant prejudice if answered.
Uniform Rules §§ 221.2 and 221.3 are not limited to parties but apply to deponents.' Thus, in the event that a question posed to a nonparty fits within the three exceptions listed in § 221.2, the nonparty's attorney is entitled to follow the procedures set forth in §§ 221.2 and 221.3."(Sciara v Surgical Assocs. of W. NY, P.C., 32 Misc 3d 904, 913 [Sup Ct, Erie County 2011].) Thus, at the very least, counsel for a non-party witness at a deposition may object under the permitted exceptions set forth in the Uniform Rules for the Conduct of Depositions. (22 NYCRR 221.1 et seq.)
Commentators have suggested that Thompson does not address the situation, where a party's counsel represents the non-party as well, because a party's counsel may raise objections at trial. This Court agrees.
"Thompson does not place any restrictions on the ability of an attorney representing a party to the action to represent a non-party at the deposition and to participate fully in that deposition. Thus, it is the hat worn by the attorney, rather than that worn by the witness, that controls the ability of the attorney to participate in a nonparty deposition."(David Paul Horowitz, May I Please Say Something?,83 NY St BJ 82 at 82.) Otherwise, a party's counsel who is entitled to raise objections at a deposition would lose that right to object by virtue of the dual representation of a non-party.
Plaintiff maintains that defendants' counsel should be disqualified from representing Skanska because defendants' counsel allegedly solicited Skanska for representation, in violation of Rule 7.3 of the Rules of Professional Conduct (22 NYCRR 1200.0). Plaintiff also argues that Skanska's representation by defendants' counsel would create a conflict of interest, in that defendants could potentially implead Skanska as a third-party defendant. In addition, plaintiff contends that, under Niesig v Team I (76 NY2d 363 ), plaintiff is entitled to have direct access to employees of a non-party.
Plaintiff has not demonstrated that defendants' counsel improperly solicited Skanska in violation of Rule 7.3 of the Rules of Professional Conduct. First, defendants' counsel maintains that Skanska approached defendants' counsel and was therefore not solicited. (Bruno Affirm. ¶ 8.) Second, Rule 7.3 (a) (1) states, "A lawyer shall not engage in solicitation by in-person or telephone contact . . . unless the recipient is a . . .former or existing client." Defendants' counsel asserts that Skanska is a former client. (Bruno Affirm. ¶ 9.) Although plaintiff speculates as to a conflict of interest that may arise from counsel's dual representation of defendants and non-party Skanska, plaintiff has no standing to seek disqualification, because plaintiff does not claim that he has ever had an attorney-client relationship with defendants' counsel. (Hall Dickler Kent Goldstein & Wood, LLP v. McCormick, 36 AD3d 758, 759 [2d Dept 2007] Develop Don't Destroy Brooklyn v Empire State Dev. Corp., 31 AD3d 144 [1st Dept 2006].) In any event, by counsel, defendants state that they have no intention of commencing a third-party action against Skanska. (Bruno Affirm. ¶ 10.)
Contrary to plaintiff's argument, neither Niesig v Team I nor Muriel Siebert & Co., Inc. v Intuit, Inc. (8 NY3d 506 ) stands for the proposition that a non-party witness is not entitled to be represented by counsel for the purposes of informal discovery. An attorney who engages in informal discovery with a non-party must "make clear that any discussion with counsel is entirely voluntary." (Arons v Jutkowitz, 9 NY3d 393, 410 .) Because the discussion is voluntary in informal discovery, a non-party wishing to talk informally to counsel only with an attorney present may therefore not be forced to forgo access to counsel.
Therefore, plaintiff's motion is denied.
HEART ATTACK BROUGHT ON BY SUPER BOWL
STRESS IS A WORK-RELATED INJURY
Appeal from a decision of the Workers' Compensation Board, filed March 18, 2011, which ruled that the death of claimant's husband was causally related to his employment.
Claimant's husband (hereinafter decedent) was employed as a receiver at a grocery store. He was assigned, however, to be the acting store manager during the afternoon and evening shift of February 7, 2010, which was the day of the Super Bowl, an historically busy day at the store. At approximately 7:00 P.M., decedent collapsed to the floor of the store and soon after died.
Claimant thereafter applied for workers' compensation death benefits. Following hearings, the Workers' Compensation Law Judge determined that decedent's death was not causally related to his employment. On review, the Workers' Compensation Board reversed, and the employer and its claims administrator (hereinafter collectively referred to as the employer) now appeal.
We affirm. Initially, we note that the Board's determination of a causal relationship was not solely based upon the presumption contained within Workers' Compensation Law § 21 (1), but also relied upon the medical evidence and testimony from the hearing therein (see Matter of Tompkins v Sunrise Heating Fuels, 271 AD2d 888, 888 ).
"It is well settled that the Board is vested with the discretion to assess the credibility of medical witnesses and its resolution of such issues is to be accorded great deference, particularly with respect to issues of causation" (Matter of Peterson v Suffolk County Police Dept., 6 AD3d 823, 824  [citation omitted]; accord Matter of Provenzano v Pepsi Cola Bottling Co., 30 AD3d 930, 932 ).
Here, claimant's expert opined that decedent suffered from extensive cardiovascular disease and that he died from a myocardial infarction. He further opined that the myocardial infarction was triggered by the stress and excitement resulting from the responsibility of running the entire store on Super Bowl Sunday, as well as decedent being involved in an altercation with an irate customer prior to collapsing. Accordingly, he concluded that decedent's death was causally related to his employment.
The employer's expert found the same cause of death, but concluded that, if there was no evidence of significant work-related stress or aggravation immediately preceding decedent's collapse, then decedent's death was not causally related to his employment. Although we agree with the employer that the record reflects that the altercation with the customer occurred hours before decedent's death, we note that the employer's expert also testified that, while uncommon, it is possible that an event that does not occur in close proximity to a myocardial infarction could still be a triggering event.
Accordingly, despite evidence in the record that may support a contrary result, we find the Board's decision supported by substantial evidence, and we decline to disturb it (see Matter of Tompkins v Sunrise Heating Fuels, 271 AD2d at 889).
Comment: As Billy Joel sang, "Working too hard can give you a heart attack."
HUSBAND WHO SUBMITTED INFLATED RECEIPTS FORFEITS BENEFITS UNDER FIRE POLICY; INNOCENT SPOUSE'S INSURABLE INTEREST LIMITED TO PERSONAL PROPERTY SHE OWNED
In an action to recover benefits under an insurance policy, the defendant appealed from an order of the Supreme Court, Suffolk County (Mayer, J.), which denied summary judgment.
The plaintiff Raymond Azzato and a nonparty, Richard Pleasants, purchased certain real property located in East Islip (hereinafter the subject property), which was improved with a residence (hereinafter the subject dwelling). Azzato and his wife, the plaintiff Tricia Williamson, secured from the defendant insurance carrier a landlord's package insurance policy covering the subject dwelling and, inter alia, certain personal property located in the subject dwelling. The policy did not name Pleasants as a co-insured. The policy stated that Azzato and Williamson were insured only to the extent that they possessed an insurable interest in the property.
The plaintiffs commenced this action to recover benefits under the policy after a fire occurred on the subject property. The plaintiffs sought to recover the sum of $250,000, alleging that the defendant improperly denied their claim.
The defendant moved, inter alia, for summary judgment dismissing the complaint. The defendant contended that it had properly denied the claim since Azzato had submitted fraudulent evidence purporting to establish the cost of certain appliances which were allegedly located in the subject dwelling at the time of the fire. The defendant contended that Azzato's fraud vitiated coverage, since his actions breached the concealment and fraud provision of the policy. The defendant argued, in the alternative, that Azzato's insurable interest was limited to 50% of the value of the subject dwelling, as he was only a 50% owner of that dwelling. The defendant also contended that it was entitled to summary judgment dismissing the complaint insofar as asserted by Williamson since she was not named on the deed to the subject property and, therefore, did not have any insurable interest.
The concealment and fraud provision of the policy provided, inter alia, that the defendant "does not cover you or any other person insured under this policy who has concealed or misrepresented any material fact or circumstance, before or after a loss." The defendant contends that Azzato breached this provision when he submitted a store receipt purporting to demonstrate the cost of the appliances allegedly damaged in the fire.
A concealment and fraud provision of an insurance policy "makes clear that the general rule of insurance law requiring good faith and fair dealing applies to fraudulent statements and false swearing made by an assured after a loss" (Domagalski v Springfield Fire & Mar. Ins. Co., 218 App Div 187, 189). "This provision is breached if an insured tenders a fraudulent proof of loss as the basis for a recovery under the policy" (Saks & Co. v Continental Ins. Co., 23 NY2d 161, 165; see Kantor Silk Mills, Inc. v Century Ins. Co., Ltd., 253 NY 584).
"Courts have been assiduous to prevent the use of the clause to bar a recovery where the alleged fraud or false swearing was not intentional, or the false statements were matters of opinion honestly, although mistakenly, held by the assured" (Domagalski v Springfield Fire & Mar. Ins. Co., 218 App Div at 189; see 70A NY Jur 2d, Insurance § 2017). "On the other hand, [courts] have not hesitated to hold that a recovery would not be permitted if it clearly appeared that the assured had intentionally made false and fraudulent statements or intentionally sworn falsely" (Domagalski v Springfield Fire & Mar. Ins. Co., 218 App Div at 189; see 70A NY Jur 2d, Insurance § 2022 ).
Thus, a key issue in determining whether a concealment and fraud provision of an insurance policy has been breached is whether the inaccurate proof of loss was created or submitted with "a willful intent to defraud or to misrepresent the material facts" (St. Irene Chrisovalantou Greek Orthodox Monastery v Cigna Ins. Co., 226 AD2d 624, 624; see Christophersen v Allstate Ins. Co., 34 AD3d 515, 516). One manner in which fraudulent intent may be established is through proof that the claimed value of the loss was grossly disproportionate to the actual value of the loss (see Saks & Co. v Continental Ins. Co., 23 NY2d at 165; see also 70A NY Jur 2d, Insurance § 2022 ). Such an inference of fraudulent intent raised by proof that the insured's claimed losses were grossly overvalued "becomes conclusive where it is shown that the difference between the amounts claimed in the proof of loss and those actually proved to have been destroyed are grossly disparate and the explanation tendered is so unreasonable or fantastic that it is inescapable that fraud has occurred" (Saks & Co. v Continental Ins. Co., 23 NY2d at 165-166; see Pipo Bar & Rest., Inc. v Certain Underwriters at Lloyd's at London, 15 AD3d 556, 556-557).
Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted by Azzato by demonstrating that Azzato breached the concealment and fraud provision of the policy when he submitted proof, in support of his claim, purporting to establish the cost of the appliances allegedly located in the subject dwelling at the time of the fire. The defendant established that the price values submitted by Azzato were significantly inflated from the actual price that he paid (see Pogo Holding Corp. v New York Prop. Ins. Underwriting Assn., 97 AD2d 503, 505, affd 62 NY2d 969; Domagalski v Springfield Fire & Mar. Ins. Co., 218 App Div at 189).
In opposition, the plaintiffs failed to raise a triable issue of fact with respect to Azzato's breach of the concealment and fraud provision of the policy (see Pipo Bar & Rest., Inc. v Certain Underwriters at Lloyd's at London, 15 AD3d at 556-557). The plaintiffs' contention that the proof Azzato submitted was only intended to be a post-loss estimate of the replacement value of the appliances is belied by the fact that the proof he submitted was made to look like an actual receipt provided to him by the store on the date that he originally purchased the appliances (cf. Saks & Co. v Continental Ins. Co., 23 NY2d at 165-166). Thus, the form, in addition to the content, of Azzato's submitted proof of loss evinced his intent to deceive the defendant. Accordingly, the Supreme Court should have, upon reargument, adhered to its original determination granting that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted by Azzato.
However, the independent wrongdoing of Azzato does not automatically vitiate any rights that Williamson may have under the terms of the policy. As indicated, the concealment and fraud provision of the policy only barred recovery from a named insured "who has concealed or misrepresented any material fact or circumstances." Accordingly, this clause only serves to vitiate the coverage of a named insured who has actually engaged in misrepresentation (see Krupp v Aetna Life & Cas. Co., 103 AD2d 252, 261; cf. Lane v Security Mut. Ins. Co., 96 NY2d 1, 5).
Here, the defendant failed to tender any evidence demonstrating that Williamson participated in, or had knowledge of, Azzato's fraudulent actions, or that she otherwise made any material misrepresentations to the defendant (see Lane v Security Mut. Ins. Co.,96 NY2d at 5; Reed v Federal Ins. Co., 71 NY2d 581, 588; Krupp v Aetna Life & Cas. Co., 103 AD2d at 261). Accordingly, as the plaintiffs correctly contend, the defendant failed to demonstrate that Williamson breached the concealment and fraud provision of the policy.
Nevetheless, the defendant moved for summary judgment dismissing the complaint insofar as asserted by Williamson on the alternative ground that she did not have an insurable interest in the damaged property. The defendant contends that the Supreme Court erred when it, in effect, concluded that the insurable interest clause of the policy was ambiguous and that resolution of the issue required consideration of extrinsic evidence.
"Extrinsic evidence will be considered only if the contract is deemed ambiguous" (Maser Consulting, P.A. v Viola Park Realty, LLC, 91 AD3d 836, 837). "Whether an agreement is ambiguous is a question of law for the courts" (Riverside S. Planning Corp. v CRP/Extell Riverside, L.P., 13 NY3d 398, 404 [internal quotation marks omitted]). "A contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion" (Greenfield v Philles Records, 98 NY2d 562, 569, quoting Breed v Insurance Co. of N. Am., 46 NY2d 351, 355). "Thus, if the agreement on its face is reasonably susceptible of only one meaning, a court is not free to alter the contract to reflect its personal notions of fairness and equity" (Greenfield v Philles Records, 98 NY2d at 569-570).
Here, the insurable interest clause stated that, "in the event of a covered loss, [the defendant] will not pay for more than an insured person's insurable interest in the property." The term "insurable interest" has been defined by statute (Insurance Law § 3401). Not only is the term "insurable interest" defined in the Insurance Law, it has long been utilized by courts to describe a particular legal concept (see e.g. Scarola v Insurance Co. of N. Am., 31 NY2d 411, 412-413; National Filtering Oil Co. v Citizen's Ins. Co. of Mo., 106 NY 535, 541; Herkimer v Rice, 27 NY 163, 168-169). Contrary to the plaintiffs' contention, the insurable interest provision of the policy was not ambiguous.
The defendant further contends that, since Williamson does not have an insurable interest in any of the property covered by the policy, the insurable interest clause provides a ground for dismissing the complaint insofar as asserted by her. The plaintiffs assert that Williamson held an insurable interest in property covered by the policy.
"It has long been the rule that, in order to prevent fraud and crime and to prohibit wagering contracts on property in which the insured possesses no interest, the lack of an insurable interest in the property insured renders the property insurance void and unenforceable" (Etterle v Excelsior Ins. Co. of N.Y., 74 AD2d 436, 438; see Scarola v Insurance Co. of N. Am., 31 NY2d at 413). Thus, "the law of this State requires that the named insured have an insurable interest in the subject matter of the policy of insurance" (Citizens Sav. & Loan Assn. of N.Y. v Proprietors Ins. Co., 78 AD2d 377, 379; see Insurance Law § 3401).
In this case the insurable interest provision of the policy stated that "in the event of a covered loss, the defendant would not pay for more than an insured person's insurable interest in the property covered." Thus, the insurable interest provision of the policy plainly limits the insured's recovery to the extent of that person's insurable interest.
Under the Insurance Law, the term " insurable interest'" is defined to include "any lawful and substantial economic interest in the safety or preservation of property from loss, destruction or pecuniary damage" (Insurance Law § 3401). "Generally, a party possesses an insurable interest in the subject matter which is insured where he has such a relation or connection with, or concern in, such subject matter that he will derive pecuniary benefit or advantage from its preservation, or will suffer pecuniary loss or damage from its destruction, termination, or injury by the happening of the event insured against" (National Superlease v Reliance Ins. Co. of N.Y., 123 AD2d 608, 608).
As the plaintiffs correctly contend, "a legal or equitable interest in the property insured is not necessary to support an insurable interest" (Weissman v Galway Constr. Corp., 239 AD2d 410, 411; see National Filtering Oil Co. v Citizen's Ins. Co. of Mo., 106 NY at 541). Rather, "a person has an insurable interest in a property whenever he or she would profit by or gain some advantage from the property's continued existence or suffer some loss or disadvantage by its destruction" (3 Couch on Insurance 3d § 41:11; see National Filtering Oil Co. v Citizen's Ins. Co. of Mo., 106 NY at 541).
However, "the interest must be of such a character that the destruction of the property will have a direct, and not a mere remote or consequential, effect upon it" (3 Couch on Insurance 3d § 41:11). "Mere possession or license to use the property is insufficient to support an insurable interest where the insured would experience no direct economic loss by its destruction" (id.; see Cassadei v Nationwide Mut. Fire Ins. Co., 21 AD3d 681).
Here, in support of that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted by Williamson, the defendant submitted the deed for the subject property which transferred the subject property to Azzato and Pleasants as tenants-in-common. In addition, the defendant submitted a supplemental fire claim form submitted in support of the plaintiffs' claim, which indicated that 50% of the subject property was owned by Azzato and that the other 50% of the subject property was owned by Pleasants. Williamson's name did not appear on the deed or the supplemental fire claim form.
"An insurer undertakes a separate and distinct obligation to the various insured parties" (BMW Fin. Servs. v Hassan, 273 AD2d 428, 429), and the insurable interest of each insured is treated as separate and distinct from the other insured parties' insurable interests (see Harvey v Cherry, 76 NY 436, 443; Graziane v National Sur. Corp., 120 AD2d at 773, 775). This rule has been applied to the rights of insured spouses and one spouse's contractual right under an insurance policy will be treated as distinct from the other spouse's rights under that policy (see Graziane v National Sur. Corp., 120 AD2d 773, 775; Krupp v Aetna Life & Cas. Co., 103 AD2d at 258).
We conclude that the defendant's submissions established that Azzato's insurable interest in the subject dwelling was limited to 50% of the value of that dwelling (see Harvey v Cherry, 76 NY at 443; Graziane v National Sur. Corp., 120 AD2d at 775), and that Williamson did not have any insurable interest in the subject dwelling (see Peker v Allstate Ins. Co., 13 AD3d 596, 598; Silberman v Royal Ins. Co., 184 AD2d 562, 562). Accordingly, the defendant established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted by Williamson.
In opposition, the plaintiffs failed to raise a triable issue of fact as to whether Williamson had an insurable interest in the subject dwelling. The plaintiffs contend that Williamson contributed to the purchase of Azzato's share of the subject property, that she helped to maintain it after it was purchased, and that she furnished portions of the subject dwelling with her own personal property. The mere fact that Williamson may have helped to pay for the subject property does not establish that she has an insurable interest in that property (see Silberman v Royal Ins. Co., 184 AD2d at 562). Furthermore, the fact that she may have helped to maintain her husband's investment does not provide a basis for concluding that she had an insurable interest such that the loss of the subject dwelling would have directly affected her pecuniary interests (see Judge v Travelers Ins. Co., 262 AD2d 983, 984). In addition, the plaintiffs have not alleged that Williamson earned any income from the subject property, resided in the subject dwelling, or had any legal or equitable right to do so (cf. Redfield v Holland Purchase Ins. Co., 56 NY 354, 357; Etterle v Excelsior Ins. Co. of N.Y., 74 AD2d at 440).
Accordingly, the plaintiffs failed to raise a triable issue of fact as to whether Williamson had an insurable interest in the subject dwelling and the Supreme Court erred when it, upon reargument, denied that branch of the defendant's motion which was for summary judgment dismissing so much of the complaint insofar as asserted by Williamson as sought to recover damages under the provisions of the policy for injury to the subject dwelling. However, in light of the fact that the policy at issue covered personal property that was located in the dwelling, Williamson nevertheless raised a triable issue of fact by tendering evidence to show that she was the owner of an antique dining room set which allegedly was destroyed in the fire (cf. Cassadei v Nationwide Mut. Fire Ins. Co., 21 AD3d at 682). Accordingly, the Supreme Court properly, upon reargument, denied that branch of the defendant's motion which was for summary judgment dismissing so much of the complaint insofar as asserted by Williamson as sought to recover under the provision of the policy covering personal property.
In light of the foregoing, we need not reach the defendant's remaining contention.
SUBWAY DOORS CATCH PLAINTIFF'S FOOT WHILE EXITING; DEFENSE VERDICT VACATED, THEN REINSTATED
This appeal arises out of a personal injury action in which the plaintiff alleges that he sustained injuries as he was exiting a subway car on the R train at Whitehall Street, Manhattan. At trial, the plaintiff testified that the defendant's conductor negligently closed the doors on his ankle. The conductor of the train testified that he followed the correct procedures as to opening and closing subway doors, and that nothing out of the ordinary happened on the day of the plaintiff's accident. There were no witnesses to the incident according to the plaintiff, other than the "O-mouthed" passengers [see below for explanation of "O-mouthed - LNR] remaining on the train as it pulled out of the station. As the motion court acknowledged, this case from the beginning rested on a credibility issue.
The record reflects that at trial, the defense counsel advanced the theory that the plaintiff's account of his accident was implausible. In his opening remarks, the defense counsel told the jury, without objection, that the evidence would establish that "the only way the accident could have happened was because of some fault on the part of the plaintiff." Defense counsel told the jury "just use your common sense to try to understand the mechanics of something like this happening."
The plaintiff testified as follows: On May 11, 2007, he was getting ready for an evening performance in Manhattan when he realized he had to return to his home in Staten Island to retrieve a forgotten item of clothing for the performance; he boarded the R train at 23rd Street station for the 20-25 minute trip to Whitehall Street, the last stop in Manhattan before the train continued to Brooklyn; he had not brought a book or video game with him, but he was "going over the show in his mind and thinking about it."
The plaintiff testified that upon reaching Whitehall Street, he exited the subway car at a normal pace. He described the accident as follows:
"I put my left foot onto the platform, and then as I was passing through the doorway, I felt an impact and I fell forward onto my hands ...
When I looked out at the subway car, I saw that my leg was still on the subway and that I was lying on the ground, and then I saw the faces of the people in the car who all looked very surprised, their faces were all in an O-mouthed expression of surprise ... I pulled the leg off of the train, and almost immediately after the train doors closed and the train took off."
In cross-examining the plaintiff, the defense counsel attempted to show that the plaintiff's right ankle was caught in the subway door because the plaintiff was not paying attention and moved to exit the subway car too late rather than because the train conductor negligently closed the doors as the plaintiff was exiting the subway car. Further, defense counsel attempted to elicit the fact that the plaintiff could not risk failing to alight at the last stop in Manhattan. For example, defense counsel asked whether "Whitehall Street station is the last stop ... in Manhattan in order to get to the ferry," and whether if he missed that stop, he would "have to travel all the way to Brooklyn."
The conductor of the train on which the plaintiff alleged he was riding testified that on the day of the accident he followed the procedures that are in place for all conductors with respect to the opening and closing of doors. Conductors open the doors using two buttons on the master control panel; they wait for a specified time, then make an announcement to stand clear of the closing doors, and then they close the doors. The conductor testified that the lights on the panel would indicate if the doors had not closed. The conductor further testified that he did not remember seeing anyone fall or get caught in the doors in the Whitehall Street station at or around the time that the plaintiff allegedly incurred the injury.
In summation, the defense counsel posited that the plaintiff "jetted out" of the train at the last second. Defense counsel stated, "I am not a witness. What I say is not testimony. I'm only giving it to you to ponder." He continued:
"After all, if you imagine a person standing in a doorway just standing there when the doors closed — and all of you have seen this happen and I know this, during jury selection, you've all seen doors close on people and passengers, okay. You know what happens. It's the upper part of the person's body that's contacted."
At this point, the plaintiff objected, and the court sustained the objection. Then the defense counsel continued:
"Because as I said in my opening, the plaintiff's body was outside of the train at the time of the occurrence. Why was it that way? I have no idea but it wasn't because his leg just happened to be at a particular point that it could be grabbed and held ...
Think about it, how it happened. If he were going through, the upper part of his body would have been hit and would have been the contact point, his arm, shoulder or something like that."
The plaintiff objected again, and the court sustained the objection. The defense counsel then completed his sentence: "But not his leg."
At this point, the court repeated that it had sustained the objection. Defense counsel stated: "There is no other way I see it. You can — you're the triers of the facts. You may decide otherwise."
The court instructed the jury that a finding of the defendant's negligence would require the jury to decide that the plaintiff was not jumping off the train at the very last minute. Moreover, it observed that the case rested on a credibility issue. In other words the jury would have to decide which witness it found credible — the plaintiff or the train conductor — since their accounts conflicted. Specifically, the court instructed the jury, consistent with the Pattern Jury Instructions, as follows:
"In deciding how much weight you choose to give to the testimony of any particular witness, ... The tests used in your everyday affairs to decide reliability or unreliability of statements made to you by others are the tests you will apply in your deliberations ... You bring with you to this courtroom all of the experience and background of your lives."
Subsequently, the jury rendered a 5-1 verdict in favor of the defendant. The plaintiff moved pursuant to CPLR 4404 to set aside the verdict on the grounds that defense counsel's improper conduct deprived the plaintiff of the right to a fair trial; that the jury verdict was against the weight of evidence; and that the verdict was not supported by sufficient evidence. In support of the motion, the plaintiff offered the affidavit of a dissenting juror, who stated that the comments of other jurors reflected those of the defense counsel that the accident happened because the plaintiff was "rushing" out of the train.
By order dated May 18, 2011, the motion court set aside the defense verdict and ordered a new trial. The court in its decision included verbatim the defense counsel's summation comments, as set forth above, and held that the defense counsel "created an atmosphere that deprived the plaintiff of a fair trial, not by an isolated remark during summation, but by continual and deliberate efforts to divert attention from the issues." Contrary to its view when charging the jury that the case rested on a credibility issue, the court noted instead that "given the plausible, uncontradicted evidence from plaintiff that the accident occurred in the manner he claimed, and not in the manner which defense counsel asserted, substantial justice would not be done if the verdict were permitted to stand." It further held that "the inflammatory and prejudicial comments made by defendant's counsel so contaminated the proceedings as to deny plaintiff his right to a fair trial," and that the counsel "so tainted the course of the trial that he effectively destroyed any chance for a fair outcome by interjecting his own view of the facts to the jury."
For the reasons set forth below, we reverse and reinstate the verdict in favor of the defendant. As a threshold matter, the defendant correctly asserts that the issue of counsel's alleged "misconduct" was unpreserved because the plaintiff raised the claim for the first time in his motion to set aside the verdict. See Califano v. City of New York, 212 A.D.2d 146, 152-53, 627 N.Y.S.2d 1008, 1012 (1st Dept. 1995).
However, under CPLR 4404(a), the motion court has the discretion to set aside the verdict and order a new trial "in the interest of justice." The use of such discretionary power is warranted when the aggrieved party is deprived of substantial justice or a counsel's misconduct unduly affected the verdict. Micallef v. Miehle Co., Div. of Miehle-Gross Dexter, 39 N.Y.2d 376, 381, 384 N.Y.S.2d 115, 118, 348 N.E.2d 571, 574 (1976).
Here, we conclude the motion court erred in finding that the defense counsel's remarks "contaminated" the proceedings and thereby deprived the plaintiff of his right to a fair trial. Accordingly, we find that the motion court abused its discretion in setting aside the verdict.
It is well established that a counsel is afforded wide latitude in summation to characterize and comment on the evidence. Chappotin v. City of New York, 90 AD3d 425, 426, 933 N.Y.S.2d 856, 857 (1st Dept. 2011), lv. denied 19 NY3d 808, 2012 N.Y. Slip Op. 77463 (2012). Defense counsel remains "within the broad bounds of rhetorical comment in pointing out the insufficiency and contradictory nature of a plaintiff's proof" without depriving the plaintiff of a fair trial. Furthermore, making a reference to alternative ways in which evidence can be interpreted may constitute "a fair comment upon the evidence." Cerasuoli v. Brevetti, 166 A.D.2d 403, 404, 560 N.Y.S.2d 468, 469 (2d Dept. 1990) (holding that remarks suggesting other ways in which needle could have been embedded in plaintiff's abdomen were fair comments upon evidence, in medical malpractice action).
While there are certain boundaries to the counsel's latitude, (see Caraballo v. City of NewYork, 86 A.D.2d 580, 581, 446 N.Y.S.2d 318, 319 (1st Dept. 1982)), the defense counsel in this case did not exceed those boundaries. Counsel's remarks on summation simply did not amount to an argument based on facts not in the record. See e.g. Benson v. Behrman, 248 A.D.2d 153, 154, 670 N.Y.S.2d 760, 760 (1st Dept. 1998) (upholding "restraining plaintiff's counsel from straying outside four corners of the evidence and offering his own speculation on summation"); see also People v. Marin, 102 A.D.2d 14, 33, 478 N.Y.S.2d 650, 662 (2d Dept. 1984), aff'd, 65 N.Y.2d 741, 492 N.Y.S.2d 16, 481 N.E.2d 556 (1985) (holding that verdict cannot stand based on speculation and conjecture). The defense counsel merely argued that the plaintiff's account of the accident did not make sense, pointing out the insufficient and contradictory nature of his testimony. Thus, his summation was directed at the credibility of the plaintiff's testimony, and was not an interjection of the counsel's own view of the facts.
The plaintiff, as the sole witness to the accident, claimed that the doors shut only on his right ankle while he was exiting the subway car at a normal pace. The defense counsel simply posited that in the normal course of events the doors would close on the upper part of an individual's body if the person was walking out of the subway car at a normal pace because the upper body is wider than the right leg.
Moreover, the defense counsel's suggestion that the jurors consider their own experience of using the subway does not render his arguments speculative or conjectural. Jurors are required to evaluate conflicting evidence and draw conclusions therefrom based on their day-to-day experiences. Notably, that was precisely what the motion court instructed the jury to do.
We also find that the counsel's remarks that the accident happened because the plaintiff was "jetting out" of the train constituted a fair comment on the evidence. As in Cerasuoli, defense counsel referred to an alternative way in which the doors could shut only on the right leg. See 166 A.D.2d at 404, 560 N.Y.S.2d at 469.
Further, the defense counsel did not make any statements that were designed to inflame the jury's passion, which would result in the jury deciding the case on an emotional rather than rational basis. See cf. Minichiello v. Supper Club, 296 A.D.2d 350, 352, 745 N.Y.S.2d 24, 25 (1st Dept. 2002) (holding that the misconduct of plaintiff's counsel warranted mistrial when counsel analogized a witness to a Nazi). On the contrary, defense counsel specifically asked the jurors to evaluate the plaintiff's account of the accident consistent with their own experiences of seeing subway doors close.
Finally, defense counsel did not make any character attacks on the plaintiff or the plaintiff's witnesses. See cf. Steidel v. County of Nassau, 182 A.D.2d 809, 814, 582 N.Y.S.2d 805, 808 (2d Dept. 1992) (new trial when counsel referred to opposing expert as "hired gun" whose idea of truth and justice is that "this is a game to be played"). In order to warrant a mistrial, an ad hominem attack must be extreme and pervasive. See Chappotin, 90 AD3d at 426, 933 N.Y.S.2d at 857 (denying mistrial where defense counsel referred to plaintiff as a man who has played the system for 15 years without concerns about medical care or jobs).
Here, the defense counsel primarily attempted to undermine the credibility of the plaintiff's testimony based on its inherent contradictions, and not by a character attack on the plaintiff. Thus, we conclude that the motion court erred in finding that defense counsel's conduct deprived the plaintiff of his right to a fair trial.
With respect to the juror affidavit, we note that the motion court erroneously considered the dissenting juror's postverdict affidavit in its determination of the motion. "Juror affidavits should not be used to impeach a jury verdict absent extraordinary circumstances." Martinez v. Te, 75 AD3d 1, 7, 901 N.Y.S.2d 161, 165 (1st Dept. 2010), citing Mosher v. Murell, 295 A.D.2d 729, 731, 744 N.Y.S.2d 61, 64 (3d Dept. 2002), lv. denied 98 N.Y.2d 613, 751 N.Y.S.2d 168, 780 N.E.2d 979 (2002); see also Hersh v. New York City Tr. Auth., 290 A.D.2d 258, 735 N.Y.S.2d 527 (1st Dept. 2002) (affirming mistrial for juror confusion not based on juror affidavits but based on verdict sheets and juror questions). A court may take into account juror affidavits only to clarify errors in deliberation, such as when juror confusion is apparent from a nonsensical verdict or there are obvious errors such as omissions or confusion on a special verdict sheet. See e.g. Porter v. Milhorat, 26 AD3d 424, 809 N.Y.S.2d 210 (2d Dept. 2006) (granting new trial in medical malpractice action where jury awarded future damages without filling out past damages in contradiction to instructions given on verdict sheet).
In this case, there were no extraordinary circumstances to warrant the use of a dissenting juror's affidavit to impeach the verdict. The verdict was not "nonsensical" if the jurors accepted the subway conductor's testimony, and thus inferred that the plaintiff's leg was caught between the doors because he "jetted out" of the subway car at the last moment. Moreover, the jury verdict is supported by the circumstantial evidence that the plaintiff had reason to be in a hurry and could not "afford" to miss the last subway stop in Manhattan. Based on the evidence, the jury could reasonably infer that the plaintiff's haste at the last moment, not the conductor's negligence, caused the injuries. In making that inference, the jury did not need expert testimony since the way in which doors of a subway close is not outside the experience and knowledge of the average juror. See Ferguson v. Mantell, 216 A.D.2d 160, 161, 628 N.Y.S.2d 286, 287-88 (1st Dept. 1995) (finding expert testimony proper when information provided is "outside the experience and knowledge of the average juror"). For all of the foregoing reasons, we also reject the plaintiff's argument that the verdict in favor of the defendant was against the weight of the evidence.
Accordingly, the order of the Supreme Court, New York County (Joan M. Kenney, J.), entered May 31, 2011, which granted the plaintiff's motion pursuant to CPLR 4404 to set aside the jury verdict in favor of the defendant and ordered a new trial, should be reversed, on the law, without costs, the plaintiff's motion denied, and the verdict reinstated. The Clerk is directed to enter judgment dismissing the complaint.
|In today's Rogak's New York PIP Reporter: |
The Appellate Division overturns a whole line of decisions regarding the independent contractor defense.
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|In today's Rogak's New York PIP Reporter :|
Does a prior judgment in a declaratory judgment action bar a medical provider's PIP suit? Two Appellate Term decisions come to opposite conclusions.
Also: is a medical provider who takes an assignment an "innocent third party" when it comes to policy rescission? Conflicting decisions.
DROP CEILING COLLAPSES, KNOCKING WORKMAN OFF HIS LADDER -- AND NOBODY IS LIABLE
2012 NY Slip Op 32642(U)
October 10, 2012
Sup Ct, Suffolk County
Docket Number: 09-8428
Judge: Jerry Garguilo
Edited by Lawrence N. Rogak
Plaintiff John Garlans commenced this action to recover damages for personal injuries allegedly sustained on August 1 1, 2008 when he fell from a ladder during the replacement and renovation of the air conditioning system for a Dunkin' Donuts franchise store located at 19 Bay Shore Road, Suffolk County, New York. Plaintiff allegedly was injured while attempting to lay flex piping for the installation of new air ducts in the drop ceiling of the building. A portion of the drop ceiling, including some lighting fixtures, allegedly collapsed and knocked plaintiff from the top of the ladder on which he was standing to the floor of the building. The complaint alleges causes of action against defendants for common law
negligence, and for violations of Labor Law 200 and 240 (1) as well as a cause of action under Labor Law 241l(6) based upon alleged violations of the Industrial Code.
The complaint named as additional defendants L&M at Bay Shore ("L&M"), the owner of the Dunkin Donuts franchise, Ducold Enterprises Ltd., the prime contractor for the renovation project, and Ducold Enterprises' subsidiaries, Ducold Mechanicals, Ltd., and Ducold
Plaintiff opposed the motions seeking dismissal of his complaint, and cross-moved for partial
summary judgment in his favor on the issue of liability as against defendants Ducold and Dellafranca. Plaintiff asserts that Ducold and Dellafranca failed to provide him with a safe place to work or with safety devices designed to prevent or break his fall, and that they violated numerous sections of the Industrial Code. Dunkin Donuts, Ducold, Dellafranca and L&M all opposed plaintiff's motion, arguing that plaintiffs claim under Labor Law 24 1(6) is not actionable, because it is premised upon inapplicable sections of the Industrial Code, and that his Labor Law 240 ( 1 ) claim fails as a matter of law because it relates to the unforeseeable collapse of a part of the building's permanent structure. Defendants further assert that plaintiffs claims under Labor Law 200 and the common law must be dismissed since they neither had actual or constructive notice of the alleged defective drop ceiling, nor
directed, supervised or controlled the means or method of plaintiffs work.
"Ducold established, prima facie, its entitlement to summary judgment dismissing
plaintiffs claim under Labor Law $240 (1) by submitting evidence that the drop ceiling and light fixture which unexpectedly collapsed and knocked plaintiff from the ladder were not in the process of being hoisted or secured. and did not require securing for the purposes of plaintiffs work at the time of the accident. Further, Ducold submitted unrefuted evidence that the six-foot A-frame ladder utilized by plaintiff at the time of the accident provided adequate protection for plaintiffs work, and was free of any defect. Significantly, plaintiff testified that the ladder he used was new and sturdy, and that he only fell because he was struck by a light fixture that swung from the roof of the store after the drop ceiling collapsed. In opposition, the conclusory assertion of plaintiff's counsel that plaintiff should have been provided with equipment to prevent the drop ceiling from collapsing is insufficient to raise a triable issue warranting denial of the motion."
"Ducold established its prima facie entitlement to summary judgment dismissing plaintiffs
Labor Law $200 claim against it by demonstrating that it did not have the authority to supervise or control plaintiffs work at the time of the accident, and that it neither created nor had actual or constructive notice of any alleged defective design or construction of
the drop ceiling. Significantly, plaintiff testified that he only took directions from his
employer's lead mechanic while he was at the worksite, and that at no time did anyone, including Ducold, have the authority to supervise or direct the methods or manner of his work. Further, an employee of Ducold testified that both he and plaintiff's employer inspected the drop ceiling one month prior to the accident, and that neither of them noticed any defects in the drop ceiling at that time. Additionally, Ducold provided the deposition testimony of the maintenance subcontractor hired by L&M, who testified that the drop ceiling was intact and functional prior to the alleged accident. "
"The burden, therefore, shifted to plaintiff to raise a triable issue warranting denial of the motion. Plaintiff failed in this regard, as he submitted no evidence raising any triable issues as to whether Ducold had the authority to supervise or control his work at the time of the accident, or whether it created or had actual or constructive notice on any defective condition in the design or construction of the drop ceiling. Indeed, plaintiffs mere speculatory assertion that the drop ceiling may have collapsed because it was nailed rather than screwed into the wooden beam of the store's roof, or that the weight of signs hung from the drop ceiling in other parts of the store may have caused the collapse of the drop ceiling, is insufficient to raise such an issue. Thus, the branch of Ducold's motion seeking summary judgment dismissing plaintiffs claim under Labor Law $200 is granted."
"The branch of Ducold's motion seeking summary judgment dismissing plaintiffs claim under
Labor Law 241(6) also is granted. Labor Law $24 1(6) requires owners and general contractors to provide reasonable and adequate protection and safety" for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. To recover damages on a cause of action alleging a violation of Labor Law § 241 (6), a plaintiff must establish the violation of an Industrial Code provision which sets forth specific safety standards. Further, the rule or regulation alleged to have been breached must be a specific, positive command, and must be applicable to the facts of the case."
"Here, plaintiffs bill of particulars asserts violation of various provisions of the New York
Industrial Code, including 12 NYCRR 23-1.7(b)(I) (b-c), 12 NYCRR 23-1.15 (a-e), 12 NYCRR 23-1.16 (a-f), 12 NYCRR 23-1.17 (a-e), 12 NYCRR 23-1.19 (a-d), 12 NYCRR 23-1.22 (b) (1)(2)(3)(4), and 12 NYCRR 23- 1.22 (c) However, the regulations set forth at 12 NYCRR 23-1.15 (a-e), 23- 1.16 and 23-1.17, which set standards for safety belts, life nets and harnesses, respectively, are inapplicable under the circumstances of this case, as plaintiff was not provided with any of those devices at the time of the alleged accident. Likewise, 12 NYCRR 23-1.7(b) (1) (b-c), is not applicable to the facts of this case, as that regulation applies to safety devices for hazardous openings, and not to an elevated hazard. 12 NYCRR 23-1. 22 (b) (1-4) and 12 NYCRR 23- I (c), which respectively set forth standards for ramps, runways, and platforms, also are inapplicable. Furthermore, 12 NYCRR 23- 1.19 (a-d), which sets forth the standards for the use of catch platforms, is inapplicable where, as here, there has been no showing that such items were either used or required for the performance of plaintiffs work."
"Additionally, where, as here, Ducold demonstrated that it played no part in causing or
augmenting plaintiffs alleged injuries, that it was not actively negligent, and that it neither had actual nor constructive notice of the alleged defective condition, the branch of its motion for summary judgment dismissing the cross claims by Dunkin Donuts, Dellafranca and L&M for contribution, and/or contractual or common law indemnification is granted."
"Furthermore, having determined that plaintiff claims under Labor Law 5240( 1) and $241 (6) may not be maintained, and that no evidence exists that any of the defendants either created or had actual or constructive notice of the existence of any alleged defect in the design or construction of the drop ceiling, the motion by Dunkin Donuts, Dellafranca and L&M for summary judgment dismissing the complaint and all cross claims against them is granted."
Comment: It seems incredible that a drop ceiling can collapse, knocking a workman off his ladder, and nobody is liable. Yet, the drop ceiling had been previously inspected and found to be sound, and the drop ceiling was not the subject of the work. The ladder was not defective, and the workman had all the safety devices appropriate for his job. One might think that the contractor might be held negligent -- or at least find an issue of fact about possible negligence -- for failing to find a defect in a drop ceiling upon inspecting it a month earlier, because a drop ceiling should not just suddenly collapse. But this plaintiff is simply out of luck except for worker's comp. A most unusual set of facts.
LANDLORD'S HALLWAY CAMERA CATCHES HUBBY WITH FEMALE VISITOR; LAWSUIT FOR PRIMA FACIE TORT SURVIVES DISMISSAL
Plaintiffs sue to recover damages for invasion of privacy from defendants' installation of cameras on premises where plaintiffs were tenants. Defendants Chaim Babad and Houston Street Owners Corp. owned and defendants Babad Management Co. and Houston Street Management Co. managed the premises. Defendants move to dismiss the complaint on the grounds of a documentary defense and failure to state a claim. C.P.L.R. § 3211(a)(1) and (7). The court grants defendants' motion to the extent set forth and for the reasons explained below.
Plaintiffs allege that defendants' installation of a camera near plaintiffs' apartment entrance invaded their privacy and caused damages based on several theories. Defendants claim that plaintiffs lacked a reasonable expectation of privacy in the hallway accessible to the public and that the camera recorded only the hallway outside the apartment, as a device to determine who in fact resided in the apartment.
The court may dismiss a complaint where documentary evidence utterly refutes plaintiffs' allegations and conclusively establishes a defense as a matter of law. Goldman v. Metropolitan Life Ins. Co., 5 NY3d 561, 571 (2005); Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 (2002); 511 West 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 152 (2002);McCully v. Jersey Partners, Inc., 60 AD3d 562 (1st Dep't 2009). Upon defendants' motion to dismiss claims pursuant to C.P.L.R. § 3211(a)(1) or (7), the court may not rely on facts alleged by defendant to defeat the claims unless the evidence demonstrates the absence of any significant dispute regarding those facts and completely negates the allegations against defendants. Lawrence v. Graubard Miller, 11 NY3d 588, 595 (2008); Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d at 326; Leon v. Martinez, 84 NY2d 83, 87-88 (1994); Yoshiharu Igarashi v. Shohaku Higashi, 289 AD2d 128 (1st Dep't 2001). The court must accept the complaint's allegations as true, liberally construe them, and draw all reasonable inferences in plaintiffs' favor. Nonnon v. City of New York, 9 NY3d 825, 827 (2007); Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d at 326; Harris v. IG Greenpoint Corp., 72 AD3d 608, 609 (1st Dep't 2010); Vig v. New York Hairspray Co., L.P., 67 AD3d 140, 144-45 (1st Dep't 2009). In short, the court may dismiss a claim based on C.P.L.R. § 3211(a)(7) only if the allegations completely fail to state a claim. Leon v. Martinez, 84 NY2d at 88;Harris v. IG Greenpoint Corp., 72 AD3d at 609; Frank v. DaimlerChrysler Corp., 292 AD2d 118, 121 (1st Dep't 2002); Scott v. Bell Atl. Corp., 282 AD2d 180, 183 (1st Dep't 2001).
B.Intentional Infliction of Emotional Distress
To establish plaintiffs' claim of intentional infliction of emotional distress, plaintiffs must show (1) defendants engaged in extreme and outrageous conduct, (2) with intent to cause or in disregard of a substantial probability that the conduct would cause severe emotional distress, (3) a causal connection between defendants' acts and plaintiffs' injury, and (4) severe emotional distress.Howell v. New York Post Co., 81 NY2d 115, 121 (1993); Suarez v. Bakalchuk, 66 AD3d 419 (1st Dep't 2009). To support the first element alone, plaintiffs must show that defendants' conduct was "beyond all possible bounds of decency" and "utterly intolerable in a civilized community." Marmelstein v. Kehillat New Hempstead: The Rav Aron Jofen Community Synagogue, 11 NY3d 15, 22-23 (2008); Howell v. New York Post Co., 81 NY2d at 122; Murphy v. American Home Prods. Corp., 58 NY2d 293, 303 (1983);Suarez v. Bakalchuk, 66 AD3d 419.
Defendants' commission of a criminal offense may support a finding of outrageous conduct. See Roe v. Barad, 230 AD2d 839, 840 (2d Dep't 1996); Laurie Marie M. v. Jeffrey T.M., 159 AD2d 52, 55 (2d Dep't 1990). The New York Penal Law violation plaintiffs rely on, however, proscribes surveillance only of a "person at a place and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent." N.Y Penal Law § 250.45(1) and (2). A legitimate expectation of privacy is a demonstrated "expectation of privacy that society recognizes as reasonable." People v. Ramirez-Portoreal, 88 NY2d 99, 108 (1996). The validity of an expectation of privacy depends on the circumstances. Id. at 109.
While plaintiffs' expectation of privacy in their apartment behind the closed door is reasonable, see People v. Mercado, 68 NY2d 874, 876 (1986), an expectation of privacy in the hallway is not reasonable because it is accessible to other persons. People v. Funches, 89 NY2d 1005, 1007 (1997); People v. Fabelo, 277 AD2d 130, 130-31 (1st Dep't 2000). Plaintiffs admit that the camera recorded what occurred inside their apartment only when its entrance door was open, yet contend that the camera somehow intruded on their intimate activities. Plaintiffs do not deny that it would have done so only when their entrance door was open.
Plaintiffs further claim that defendants installed the camera to humiliate them to the point of vacating their rent stabilized apartment. Penal Law § 250.45(3) also prohibits surveillance without consent in specified rooms for no legitimate purpose. People v. Evans, 27 AD3d 905, 906 (3d Dep't 2006). Plaintiffs fail to allege, however, that the camera recorded any room to which the statutory prohibition applies. Therefore plaintiffs fail to show that defendants violated any of Penal Law § 250.45's provisions.
Plaintiffs' allegations that defendants' camera allowed views into their apartment falls short of extreme and outrageous behavior. Even if the camera's location were considered a trespass into plaintiffs' apartment, it would not constitute atrocious, indecent, or utterly despicable conduct meeting the requirements for an intentional emotional distress claim. Howell v. New York Post Co., 81 NY2d at 126. While installation of a camera to view plaintiffs surreptitiously where they legitimately expected privacy may constitute extreme and outrageous conduct, Sawicka v. Catena, 79 AD3d 848, 849-50 (2d Dep't 2010), plaintiffs maintain no reasonable expectation of privacy in the hallway where defendants installed the camera, nor where it viewed into plaintiffs' apartment only when plaintiffs themselves opened the door. See Howell v. New York Post Co., 81 NY2d at 126. Insofar as defendants' installation may be considered harassment under the New York Rent Stabilization Code, 9 N.Y.C.R.R. § 2525.5, the determination of whether defendants committed harassment is for the New York State Division of Housing and Community Renewal. 9 N.Y.C.R.R. § 2526.2(c)(2); Sohn v. Calderon, 78 NY2d 755, 765 (1991); Edelstein v. Farber, 27 AD3d 202 (1st Dep't 2006);Mago, LLC v. Singh, 47 AD3d 772, 773 (2d Dep't 2008). Therefore, regardless of the outcome of a hearing on service, the court grants defendants' motion to dismiss plaintiffs' claim of intentional infliction of emotional distress. C.P.L.R. § 3211(a)(7).
C.Prima Facie Tort
The elements of a prima facie tort are: (1) intentional infliction of harm, (2) causing special damages, (3) without justification or excuse, (4) by otherwise lawful acts. Freihofer v. Hearst Corp., 65 NY2d 135, 142-43 (1985); Curiano v. Suozzi, 63 NY2d 113, 117 (1984); Burns Jackson Miller Summit & Spitzer v. Lindner, 59 NY2d 314, 332 (1983); Posner v. Lewis, 80 AD3d 308, 312 (1st Dep't 2010). Plaintiffs must plead a "specific and measurable loss" from the tortious conduct to establish special damages. Freihofer v. Hearst Corp., 65 NY2d at 143. See Curiano v. Suozzi, 63 NY2d at 117; DeMicco Bros., Inc. v. Consolidated Edison Co. of NY, Inc., 8 AD3d 99, 100 (1st Dep't 2004); Vigoda v. DCA Prods. Plus, 293 AD2d 265, 266 (1st Dep't 2002); Havell v. Islam, 292 AD2d 210 (1st Dep't 2002). Malevolence must be the sole motivation for defendants' injurious actions. Curiano v. Suozzi, 63 NY2d at 117; Burns Jackson Miller & Spitzer v. Lindner, 59 NY2d at 333; Posner v. Lewis, 80 AD3d at 312.
Plaintiffs' allegation in their complaint that defendants placed the camera to force plaintiffs and the other rent regulated tenants to leave in itself demonstrates a purpose beyond the disinterested malevolence required to sustain plaintiffs' prima facie tort claim.Havell v. Islam, 292 AD2d 210; Smukler v. 12 Lofts Realty, 156 AD2d 161, 163 (1st Dep't 1989); Rad Adv. v. United Footwear Org., 154 AD2d 309, 310 (1st Dep't 1989). Plaintiffs' affidavit opposing defendants' motion nevertheless clarifies that defendants initially installed a camera motivated by an interest in driving out tenants through surveillance of their infrequent residence, but, when the camera failed to accomplish that purpose, defendants intended their continued use solely to injure plaintiffs.
Plaintiffs' affidavit alleges the requisite harm and damages in that the surveillance eventually forced them to leave the apartment and caused them marital difficulties and expenses for mental health services. The camera also compelled Jorge Otero to disclose to his wife Georgia Otero that when she was not in the apartment another woman visited, causing additional expenses for counseling and medication, and compelling Georgia Otero to resign from her job and hire an employee to replace her so she could remain at home. Plaintiffs claim $2,500.00 per month for an alternative residence, $10,000.00 per year in psychiatric expenses, and $42,000.00 per year for the employee. Thus, even though the complaint failed to plead disinterested malevolence or special damages, plaintiffs' affidavit supplements their complaint and cures those deficiencies. Sargiss v. Magarelli, 12 NY3d 527, 531 (2009); Nonnon v. City of New York, 9 NY3d at 827; Amaro v. Gani Realty Corp., 60 AD3d 491, 492 (1st Dep't 2009).
D.Civil Rights Law §§ 50 and 51
Under New York law, any right to privacy derives only from New York Civil Rights Law §§ 50 and 51. Messenger v. Gruner + Jahr Print. & Publ., 94 NY2d 436, 441 (2000); Howell v. New York Post Co., 81 NY2d at 123; Freihofer v. Hearst Corp., 65 NY2d at 140. Use of a person's name, portrait, or other picture in advertising or a trade without prior written consent is a misdemeanor. NY Civ. Rights Law § 50; Messenger v. Gruner + Jahr Print. & Publ., 94 NY2d at 441; Stephano v. News Group Publs., 64 NY2d 174, 182 (1984). Persons whose name, portrait, or picture is knowingly used under circumstances that violate Civil Rights Law § 50 may recover damages for injuries sustained from that use. NY Civ. Rights Law § 51; Messenger v. Gruner + Jahr Print. & Publ., 94 NY2d at 441; Bement v. N.Y.P. Holdings, 307 AD2d 86, 89 (1st Dep't 2003); Molina v. Phoenix Sound, 297 AD2d 595, 596 (1st Dep't 2002); Hernandez v. Wyeth-Ayerst Labs., 291 AD2d 66, 69 (1st Dep't 2002). The statutes must be construed narrowly, however, limiting them to non-consensual commercial appropriations of a living person's name, portrait, or picture. Messenger v. Gruner + Jahr Print. & Publ., 94 NY2d at 441; Finger v. Omni Publs. Intl., 77 NY2d 138, 141 (1990); Stephano v. News Group Publs., 64 NY2d at 183; Guerrero v. Carva, 10 AD3d at 105, 115-16 (1st Dep't 2004).
To establish that defendants violated these statutes, plaintiffs thus must plead and prove defendants' (1) use of plaintiffs' picture (2) within the state of New York, (3) for purposes of advertising or trade, (4) without plaintiffs' written consent. Molina v. Phoenix Sound, 297 AD2d at 597. Plaintiffs claim defendants' use of the images captured by the camera, either to determine who resided in their apartment or to force out rent regulated tenants, was a trade purpose.While pleading a trade purpose to support plaintiffs' Civil Rights Law claim is inconsistent with pleading disinterested malevolence to support their prima facie tort claim, plaintiffs may plead alternatively. C.P.L.R. § 3014; Finkelstein v. Warner Music Group Inc., 14 AD3d 415, 416 (1st Dep't 2005).See Citi Mgt. Group, Ltd. v. Highbridge House Ogden, LLC, 45 AD3d 487 (1st Dep't 2007).
Civil Rights Law §§ 50 and 51 do not define advertising or trade purposes, but advertising purposes include use of a name, portrait, or picture in a publication which, as a whole, is distributed to advertise or solicit use of a product or service. Beverley v. Choices Women's Med. Ctr., 78 NY2d 745, 751 (1991); Guerrero v. Carva, 10 AD3d at 116; Morse v. Studin, 283 AD2d 622 (2d Dep't 2001). A name, portrait, or picture is used for trade purposes if its use is to attract trade to a business entity. See Ippolito v. Lennon, 150 AD2d 300, 302-303 (1st Dep't 1989). The content of any text associated with the name, portrait, or picture, rather than a motive for pecuniary gain, determines whether the use is for trade or for excluded newsworthy purposes. Stephano v. News Group Publs., 64 NY2d at 185. See Finger v. Omni Publs. Intl., 77 NY2d at 141-42; Bement v. N.Y.P. Holdings, 307 AD2d at 90. Whether defendants actually attracted customers or profited through the publication, however, are factors showing advertising or trade purposes. Rall v. Hellman, 284 AD2d 113, 114 (1st Dep't 2001).
In any event, plaintiffs allege nothing that would support an advertising or a trade purpose. Without this essential element, they fail to sustain a claim under the Civil Rights Law.
For the above reasons, the court grants defendants' motion to dismiss plaintiffs' claims for intentional infliction of emotional distress and for violation of New York Civil Rights Law §§ 50 and 51. C.P.L.R. § 3211(a)(7). The court denies defendants' motion to dismiss plaintiffs' remaining prima facie tort claim based on documentary evidence or a failure to state a claim for relief. C.P.L.R. § 3211(a)(1) and (7).
Comment: Interesting story. It would appear that the landlord set up a surveillance camera in the hallway outside a rent stabilized apartment, perhaps to gather evidence that the apartment was not the primary residence of the tenant or that it was being put to some use that the landlord could use to legally evict the tenant. Instead, apparently, the cameras recorded the tenant-husband receiving a female guest other than his wife, which caused some domestic unrest, and -- very likely -- precipitated this lawsuit.
In today's world, there are surveillance cameras everywhere, mostly for security reasons, and they are allowed everywhere except in places where you have a right to privacy, like bathrooms, and inside your own apartment or home (unless you place them there yourself).
All of these plaintiffs' theories of liability failed except for "prima facie tort," which is a catch-all cause of action for lawful actions that are done with bad intent and which cause actual monetary damage. If this case goes to trial, the plaintiffs are going to have to argue to a jury that the landlord put up the camera with the intent of causing some kind of harm to the plaintiffs, and that recording the female visitor's comings and goings sent the plaintiffs' marriage into an expensive tailspin.
The depositions should be interesting. Beyond that, however, this decision carries some worrisome implications for all landlords with security cameras.
"EARTH MOVEMENT" EXCLUSION WHICH SPECIFICALLY MENTIONS "MAN MADE" EVENTS UPHELD BY COURT OF APPEALS
In Pioneer Tower Owners Assn. v State Farm Fire & Cas. Co. (12 NY3d 302 ), we held that an "earth movement" exclusion in an insurance policy did not unambiguously apply to excavation. We now confront a policy in which a similar exclusion is expressly made applicable to "man made" movement of earth. We hold that this added language eliminates the ambiguity, and that loss caused by excavation is excluded from the policy.
Travelers Indemnity Company issued to plaintiff an insurance policy covering "direct physical loss of or damage to" a building in Brooklyn. Under the heading "EXCLUSIONS," the policy said:
"1.We will not pay for loss or damage caused directly or indirectly by any of the following. . . .
"(4) Earth sinking (other than sinkhole collapse), rising or shifting including soil conditions which cause settling, cracking or other disarrangement of foundations or other parts of realty. Soil conditions include contraction, expansion, freezing, thawing, erosion, improperly compacted soil and the action of water under the ground surface;
"All whether naturally occurring or due to man made or other artificial causes."
The building suffered cracks as a result of an excavation being conducted on the lot next door to it. Plaintiff submitted a claim, which Travelers rejected, relying on the earth movement exclusion. Plaintiff sued for breach of the policy. Supreme Court denied Travelers' motion for summary judgment; the Appellate Division affirmed (Bentoria Holdings, Inc. v Travelers Indem. Co., 84 AD3d 1135 [2d Dept 2011]), but granted leave to appeal to this Court. We now reverse.
Pioneer was in most respects virtually identical to this case. The defendant there insured a building against "accidental direct physical loss"; the building suffered cracks and other damage as a result of an excavation on an adjoining lot. The defendant refused to pay, relying on an earth movement exclusion very similar to the one quoted above, with the distinction that the last words of the earth movement exclusion here — "All whether naturally occurring or due to man made or other artificial causes" — were absent in Pioneer.
The plaintiff in Pioneer argued that the policy did not clearly exclude "an excavation — the intentional removal of earth by humans". We found that argument to be "reasonable", and therefore held that the earth movement exclusion "did not unambiguously remove" excavation damage from the coverage of the policy. But the same argument is not available to plaintiff here. By expressly excluding earth movement "due to man made or artificial causes," the policy contradicts the idea that "the intentional removal of earth by humans" is not an excluded event. This policy cannot reasonably be read to cover the damage on which plaintiff's claim is based.
Accordingly, the order of the Appellate Division should be reversed, with costs, the motion of Travelers Indemnity Company for summary judgment dismissing the complaint as against it granted, and the certified question answered in the negative.
* * * * * * * * * * * * * * * * *
Comment: Thus, for any insurer which has adopted the revised version of the earth movement exclusion, excavation or any other "artificial" cause of soil movement that causes property damage will not be covered.
Dear clients, friends and readers:
Like 90% of Nassau County, our office still has no electricity, and so our
office phones and computers can't work. Our homes are battered, but rest assured
our office is dry and physically intact. Thank God we are all safe, and keeping
everything under control. All your business with us is safe and sound and we
are keeping in touch with the courts regarding rescheduling motions and trials.
We are still right here to answer all your questions as usual. As soon as the
lights are back on we will be up and running -- hopefully any day now.
In the meantime, here is how to contact us:
Email: Insurancelawyer@... (none of our individual "rogak.com" emails can
work with our server down)
Larry Rogak - 516 322 2470
Fran Kanterman - 516 476 5486
Our post office just resumed delivery today (11/01), even though they have no
In this time of crisis, the team of professionals at Lawrence N. Rogak LLC is
working day and night to ensure that our valued clients continue to receive our
best. Let us know if you have any special concerns. As always, when there are
problems, we come up with solutions.
Stay safe and be well. The entire region has taken a severe blow and has a long
road towards recovery. But we'll do it.
Dear Clients, Readers and Friends:
The Law Office of Lawrence N. Rogak LLC continues to operate even though power
has not yet been restored to our office. We are working out of our homes and
covering all appearances.
The U.S. Postal Service delivery is not fully restored in our area, so if
possible, use email to send us documents and correspondence. Only our main
email address is currently functional due to the power outage:
You can also call my cell phone: 516 322 2470.
My best wishes to you all for a speedy recovery from this disaster.
HOMEOWNER'S POLICY COVERS COST OF MOBILE HOME AS REPLACEMENT FOR REGULAR HOME
Plaintiffs commenced this action seeking to recover damages based upon defendant's alleged breach of contract and bad faith in settling plaintiffs' insurance claim for fire damage to their house. Following joinder of issue and discovery, defendant moved for partial summary judgment dismissing certain claims, including plaintiffs' claim for consequential damages, and also sought to preclude plaintiffs' expert from testifying at trial. Supreme Court denied the motion in its entirety. Defendant now appeals.
Initially, we note that defendant's statute of limitations argument was waived by defendant's failure to raise it in the answer or amended answer, or in a pre-answer motion to dismiss (see CPLR 3211 [e]; Dougherty v City of Rye, 63 NY2d 989, 991-992 ).
As to the merits, we are unpersuaded by defendant's argument that plaintiffs' claims for consequential damages, replacement cost damages for personal property, damages to the residence, and additional living costs should be dismissed because they failed to comply with defendant's discovery demands and with a November 24, 2010 discovery order issued by Supreme Court. We note that Supreme Court implicitly rejected that argument and, instead, in the order presently on appeal, enlarged the time for plaintiffs to itemize and particularize all damages alleged. "Trial courts have broad discretion in supervising the discovery process" (Mary Imogene Bassett Hosp. v Cannon Design, 84 AD3d 1543, 1544 ), and we find no abuse of discretion here.
With respect to defendant's claim that plaintiffs are precluded from recovering the replacement cost of their residence, defendant first contends that the replacement cost terms of the insurance contract do not apply when the insured residence is replaced by a mobile home, as was done in this case. We do not agree. As relevant here, the loss settlement provisions specify that replacement cost terms apply to a "building covered under Coverage A . . . that has a permanent foundation and roof," but not to a mobile home whether or not it has a permanent foundation. Importantly, Coverage A describes the insured residence located on the premises, not the replacement residence. Because the insured residence at issue here was not a mobile home, defendant's argument fails.
With respect to defendant's further contention that replacement cost is unavailable because plaintiffs did not repair or replace the residence within 180 days — which they concededly did not — we agree with Supreme Court that fact questions exist regarding whether Charles Mason, defendant's claims adjustor, directed plaintiffs to leave the premises and their personal property untouched until further notice and, if so, whether they justifiably relied to their detriment on that purported directive (see Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96, 106 ; Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184 ).
Similarly, fact questions exist regarding plaintiffs' claim for consequential damages. "[C]onsequential damages resulting from a breach of the covenant of good faith and fair dealing may be asserted in an insurance contract context, so long as the damages were within the contemplation of the parties" (Panasia Estates, Inc. v Hudson Ins. Co., 10 NY3d 200, 203  [internal quotation marks and citations omitted]; see Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d 187, 192 ; Gruenspecht v Balboa Ins. Co., 93 AD3d 482, 482 ).
Here, plaintiffs allege that defendant failed to investigate and pay their claim in a timely and good faith manner, which resulted in increased damage to the insured property, necessary code upgrades, their purchase of the double-wide mobile home so they would have a place to live, and counsel fees. Such additional damages should be considered to be within contemplation of the parties as foreseeable consequences of an insurer's bad faith delay in performing its obligations under the contract. With respect to whether defendant did, in fact, act in bad faith, plaintiffs have submitted the affidavit of insurance adjuster William Hathaway, which opines that the actions and manner of defendant's adjuster in handling plaintiffs' insurance claim deviated from accepted adjusting practices and standards in numerous respects. Although defendant's expert submitted a contrary affidavit, the question of defendant's bad faith in settling the insurance claim remains open, as does the issue of whether plaintiffs can, upon completion of discovery, prove damages resulting from defendant's alleged injurious conduct.
COURT ORDERS IN-CAMERA REVIEW OF INSURER'S CLAIMS FILE TO DETERMINE WHAT PARTS MUST BE DISCLOSED
Mildred Collins was the owner of the property located at 21 Tilney Avenue in Medford, New York and had a homeowners policy of insurance with the defendant until her death on July 28, 2008. The homeowners policy was renewed and issued to the Estate of Mildred Collins effective February 5, 2009 through February 5, 2010. On February 6, 2009, the insured premises sustained water and mold damage as a result of pipes freezing and rupturing. After a claim was filed, the defendant retained counsel in May 2009 regarding its rights under the homeowners insurance policy and to provide legal advice with respect to the issue of whether heat had been maintained in the premises. Subsequent to an investigation, it was determined that the heat had not been maintained as required by the homeowner's insurance policy, and coverage was denied by letter dated June 2, 2010 (the "Denial Letter"). Thereafter, the Executrix of the Estate, plaintiff, Yvonne McLaurin Fields, commenced the instant action for breach of contract. Issue has been joined and discovery is in progress.
Plaintiff served the defendant with omnibus discovery demands dated October 8, 2010, which called for the production of, among other items, a complete copy of the claims file with the claim notes, and a privilege log. On February 17, 2011, defendant served its response to the demands, however, plaintiff's counsel asserts that a privilege log was not included and portions of the claim notes were redacted, without explanation.
On June 21, 2011, the defendant produced for deposition Lance Latten, the examiner assigned to the claim and who authored the Denial Letter. Upon questioning, Latten testified that in preparation for the deposition he reviewed the claims file and the unredacted version of the claim notes, and he revealed that entries had been made after June 2, 2010. Latten's testimony prompted plaintiff to serve a Second Notice for Discovery and Inspection dated October 12, 2011 (the "Second Notice"), demanding production of, among other items, memoranda, business and personal files, diaries and computerized notes, "in full, without abbreviation or expurgation." The Second Notice also demanded estimates, invoices, bills, proposals and inventories prepared by certain identified companies hired in connection with the damages sustained to the insured premises and its contents (hereinafter referred to collectively as "Demands #1 through #6"), and a privilege log.
By letter dated October 18, 2011, defendant's counsel objected to Demands #1 through #6 as material prepared in anticipation of litigation or on the grounds of relevance. The letter did not address the demand for the unredacted claim notes, and did not include a privilege log. Plaintiff's counsel, by letter dated November 10, 2011, advised defendant's counsel that the objections were improper and unresponsive, and demanded the production of the documents in five days; the documents were not produced and no response was received. The instant motion ensued.
Plaintiff's counsel contends that the claim notes sought are discoverable as a matter of law as any privilege shielding them from disclosure was waived when employees of the defendant reviewed the unredacted version in preparation for deposition. Counsel also contends that Demands #1 through #6 are discoverable and necessary in order to adequately prepare for trial. In opposition, defendant's counsel contends that the redacted claim note entries contain confidential communications between employees of the defendant and attorneys at the law firm and therefore are absolutely immune from discovery under the attorney-client privilege. The responsive documents to Demands #1 through #6, defendant's counsel contends, were prepared in anticipation of litigation or are irrelevant to the facts of this case.
The drastic remedy of striking the defendant's answer pursuant to CPLR 3126 is not warranted here, as plaintiff has not shown that the defendant's failure to produce documents responsive to the Second Notice was willful, contumacious or in bad faith (seeRini v Blanck, 74 AD3d 941, 902 NYS2d 185 [2d Dept 2010]; Kesar v Green Ridge Enters., 30 AD3d 471, 817 NYS2d 343 [2d Dept 2006]).
The branch of the motion to compel the production of the unredacted claims notes and the various other documents is decided as follows.
"CPLR 4503(a) states that a privilege exists for confidential communications made between attorney and client in the course of professional employment, and CPLR 3101(b) vests privileged matter with absolute immunity" (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 377, 575 NYS2d 809 ). Nevertheless, as there is a strong public policy in favor of full disclosure, a party seeking to withhold discovery on the ground of privilege has the burden of proving each element of the privilege asserted (see id.; Matter of Priest v Hennessy, 51 NY2d 62, 431 NYS2d 511 ; Koump v Smith, 25 NY2d 287, 303 NYS2d 858 ). Thus, where a party alleges that documents sought for production and inspection are shielded from disclosure by the attorney-client privilege, the party seeking to withhold such documents has the burden of demonstrating that the information contained therein constitutes confidential communications between the attorney and the client for the purpose of securing legal services or advice (see Rossi v Blue Cross & Blue Shield of Greater New York, 73 NY2d 588, 542 NYS2d 508 ; All Waste Sys. v Gulf Ins. Co., 295 AD2d 379, 743 NYS2d 535 [2d Dept 2002]; Bertalo's Rest. v Exchange Ins. Co., 240 AD2d 452, 658 NYS2d 656 [2d Dept 1997]). The attorney-client privilege is not lost because the documents also contain or refer to some nonlegal concerns (see Rossi v Blue Cross & Blue Shield of Greater New York, supra; All Waste Sys., Inc. v Gulf Ins. Co., supra). Materials prepared in anticipation of litigation are subject to a conditional privilege (CPLR 3101[d]). To demonstrate that this privilege is applicable, it must be shown that the material was prepared exclusively in anticipation of litigation (Bombard v Amica Mut. Ins. Co., 11 AD3d 647, 783 NYS2d 85 [2d Dept 2004]; Agovino v Taco Bell 5083, 225 AD2d 569, 639 NYS2d 111 [2d Dept 1996]). When such a showing is made, materials prepared in anticipation of litigation are immune from disclosure unless a party shows "substantial need" and the "inability to obtain the substantial equivalent elsewhere without undue hardship'" (CPLR 3101[d];Valencia v Obayashi Corp., 84 AD3d 786, 787, 922 NYS2d 794 [2d Dept 2011]). Whether a particular document is shielded from disclosure necessarily is a fact-specific determination that most often requires an in camera inspection (see Spectrum Sys. Intl. Corp. v Chemical Bank, supra).
The argument by plaintiff's counsel in support of production of the claim notes centers on the fact that two of the defendant's employees, Latten and his supervisor Kim Russo, admittedly reviewed the unredacted version of the claim notes in preparation for their respective deposition testimony, and thereby waived the attorney-client privilege. This argument is unavailing. A document protected by an unqualified privilege is not waived by a party merely by allowing its own employee to review the document in preparation for a deposition (see Fernekes v Catskill Regional Med. Ctr., 75 AD3d 959, 906 NYS2d 167 [3d Dept 2010]; Geffers v Canisteo Cent. School Dist. No. 463201, 105 AD2d 1062, 482 NYS2d 635 [4th Dept 1984]; see also US v Kovel, 296 F2d 918 [2d Cir 1981]; People v Osorio, 75 NY2d 80, 550 NYS2d 612 ; Hudson Ins. Co. v Oppenheim, 72 AD3d 489, 899 NYS2d 29 [1st Dept 2010]). There is no dispute that Latten and Russo are employed by the defendant. Thus, if the redacted information contains confidential communication protected by the attorney-client privilege, the privilege was not waived.
However, the court cannot determine from the papers submitted whether the redacted information in the claim notes concerns communication primarily of a legal character or "for the purpose of facilitating the rendition of legal advice or services" (Rossi v Blue Cross & Blue Shield of Greater New York, supra at 593). Therefore, an in camera review of the unredacted claims notes is necessary.
In reply, plaintiff's counsel asserts for the first time that the redacted information is discoverable because it was prepared prior to the defendant's decision to deny coverage. An argument cannot be raised for the first time in a reply (see Bailey v Brookdale Univ. Hosp. 27 AD3d 677 [2d Dept 2006]). In any event, unlike material conditionally immune from discovery, the attorney-client privilege which has absolute immunity, is not tied to such a decision or to the contemplation of litigation (see Spectrum Sys. Intl. Corp. v Chemical Bank, supra; Bombard v Amica Mut. Ins. Co., supra).
Turning to the items in the Second Notice, to which the defendant's counsel objected on relevance grounds, the Court finds that at this juncture, plaintiff has not established its entitlement to such documents. Plaintiff is clearly entitled to "full disclosure of all matter material and necessary in the prosecution...of [this] action" (CPLR 3101[a]). However, "[i]t is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" (Vyas v Campbell, 4 AD3d 417, 418, 771 NYS2d 375 [2d Dept 2004]; Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421, 541 NYS2d 30 [2d Dept 1989]). Plaintiff's counsel has not demonstrated how the invoices or bills of the companies hired by the defendant are relevant to the issues herein. Therefore, the branch of the motion seeking documents responsive to demands 2, 4 and 6 in the Second Notice, is denied at this time.
The court will now address the demands in the Second Notice to which the defendant's counsel objected on the basis that the documents were prepared after the date of the Denial Letter. "[T]he payment or rejection of claims is a part of the regular business of an insurance company. Consequently, reports which aid it in the process of deciding which of the two indicated actions to pursue are made in the regular course of its business" (Landmark Ins. Co. v Beau Rivage Rest., 121 AD2d 98, 101, 509 NYS2d 819 [2d Dept 1986] [internal quotation marks omitted]). Reports prepared by insurance investigators and adjusters before the decision is made to pay or deny a claim are thus not privileged and are discoverable (see id.; see also Bertalo's Rest. v Exchange Ins. Co.,supra). However, once an insurance company "has rejected the claim...reports made to it to aid in the resistence of the claim are made for the purpose of litigation and are protected by CPLR 3101 (subds. [c], [d])" (Landmark Ins. Co. v Beau Rivage Rest., supra at 101). The relevant date in determining whether an expert's report was prepared exclusively for anticipated litigation or trial, is the date of the insurance company's decision to deny coverage (id.).
The Second Notice seeks:
1. All estimates and/or proposals prepared by Certified Restoration Services Inc. with respect to damages sustained to the [subject] premises by virtue of the Loss.
3. All personal property estimates and/or inventories prepared by Insurers World and/or SOS (Service on Site) with respect to damages sustained to the contents located at [the subject premises] by virtue of the Loss."
5. All estimates, proposals, restoration proposals and/or inventories prepared by PCI Restoration with respect to damages sustained to the contents located at [the subject premises] by virtue of the Loss.
Defendant's counsel states, and it is not disputed that the building damages estimate prepared by Certified Restoration dated January 20, 2010 was previously provided to plaintiff's counsel, as was the damage inventory of personal property prepared by Insurers World/SOS dated February 18, 2009. Defendant objects to the extent that the Second Notice seeks disclosure of material prepared after June 2, 2010, the date of the defendant's decision to deny the claim. It contends that documents prepared after June 2, 2010 are privileged as material prepared for litigation, and thus are not discoverable. Defendant's counsel posits that a second estimate dated June 14, 2011 prepared by Certified Restoration, and a second inventory received from SOS dated October 17, 2011, fall into this category. Similarly, defendant's counsel posits that PCI Services was retained by the defendant on July 8, 2011 to prepare an estimate of the cost to clean the personal property in the subject premises. The estimate provided by PCI Services dated November 2, 2011, defendant's counsel maintains, is thus also protected from disclosure as material prepared for litigation.
The court finds that the Certified Restoration estimate dated June 14, 2011, the SOS inventory dated October 17, 2011, and the PCI Services estimate dated November 2, 2011 were prepared after the defendant issued the Denial Letter. Thus these documents fall within the parameters of CPLR 3101(d), material prepared for litigation, and are immune from disclosure unless the plaintiff's counsel can demonstrate a substantial need and the inability to duplicate the reports, which plaintiff has failed to do. Rather, plaintiff's counsel makes the conclusory assertion that plaintiff would be at a decided disadvantage should she not have time to review the damages evaluations. However, this assertion is undermined by the fact that the defendant's counsel has produced the estimates and inventory reports prepared prior to the date of the Denial Letter.
Accordingly, held in abeyance is a decision on that portion of the motion which seeks disclosure of the claim notes, in full, pending the court's in camera inspection thereof. Plaintiff's motion is otherwise denied.
|Dear Clients, Friends and Readers:|
After being without electricity since the day of the hurricane, our office is once again up and running.
We would like to express our appreciation to our clients, and to our colleagues on both sides of the bar whose cooperation helped us to maintain continuity as we worked from our homes.
There is much work to be done, as thousands of our neighbors, friends, and fellow New Yorkers (and New Jerseyites) -- including ourselves -- rebuild our homes. My own home town of Long Beach, in particular, was devastated -- every single home, without exception, was flooded. Not only did we lose power for over two weeks, but we had no running water or sewer service. Now, even with power back on, most homes have had their water heaters, refrigerators, stoves, dishwashers, a/c units, boilers, washers and dryers ruined by salt water. Over 90% of the cars in Long Beach were destroyed by salt water. Some of those flooded cars ignited due to being short-circuited, and burned down adjacent homes.
Virtually every business in Long Beach was flooded as well, and even now only a handful of them have managed to repair and re-open.
On a personal note, I would like to thank my own auto and flood insurers -- Geico and Travelers, respectively, for the exceptional customer service they gave me on my own claims. Special thanks as well to Enterprise Rent a Car.
There are many others who deserve our collective thanks. The Red Cross, whose mobile unit has been handing out hot meals in Long Beach to so many of us who had no place to eat. The firemen who have brought rescue units from far-away towns to help dig out homes covered in several feet of sand. The volunteers from civic and religious groups who came from other states and other countries to help people clean out their ruined homes. This unprecedented disaster has brought out the best in a great many people.
In this Thanksgiving season, let us all pause and acknowledge how much we have, despite all we have lost.
Just address an email to TheRogakReport@yahoogroups.com
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