Plaintiff Successfully Invalidates Pre-Suit Settlement Release
In Cain-Henry v. Morgan and Simkin-James, et al, (4th Dept., May 7, 2021), plaintiff commenced a personal injury action after being involved in a motor vehicle accident with defendants Morgan and Simkin-James. Approximately two months after the accident, plaintiff signed a general release from defendant Morgan’s insurance carrier, relieving defendants Morgan and Simkin-James from liability for the motor vehicle accident, in exchange for $1,500.
Plaintiff thereafter commenced a personal injury action against the defendants. The defendants moved to dismiss the complaint pursuant to CPLR §3211(a)(5) on the grounds that plaintiff had already signed a release and received settlement funds. In opposition to defendants’ motion, plaintiff argued that the release should be voided because it was based on fraud. Specifically, as plaintiff averred in an affidavit submitted to the Court, plaintiff was told by a representative from defendant Morgan’s insurer that she would be unable to maintain a lawsuit because she “did not have any major injuries or life-threatening injuries.” It was because of this statement that plaintiff agreed to sign the release and accept the $1,500 settlement offer.
Defendants’ motion to dismiss was granted in Supreme Court, and plaintiff appealed. The Appellate Division, Fourth Department reversed the decision of the Supreme Court and reinstated plaintiff’s complaint, holding that plaintiff’s affidavit as to the statements made by Morgan’s insurer’s representative contained sufficient grounds on which to invalidate the release.
Fourth Department Decides Two Cases Concerning Proposed Restrictions for Speaking Authorizations
On May 7, 2021, the Appellate Division, Fourth Department addressed two cases where plaintiffs’ attorneys attempted to add their own original language to authorizations permitting defense counsel to speak with plaintiffs’ treating physicians. Defendants in both cases objected to the additional language.
Sims v. Reyes, et al, (4th Dept., May 7, 2021) is a medical malpractice action arising out of an alleged failure to diagnose a tumor. Defendant Seton Imaging requested HIPAA-compliant authorizations allowing plaintiff’s physicians to speak with defense counsel. In response, plaintiff provided authorizations which included the following language:
The attorneys for defendants in this lawsuit have indicated they intend to contact you, and will attempt to meet with you to discuss the medical treatment you have provided, and perhaps other issues that relate to a lawsuit that commenced. Although I am required to provide these defense lawyers with a written authorization permitting them to contact you, the law does not obligate you in any way to meet with them or talk to them. That decision is entirely yours. If you decide to meet with their lawyers, I would ask that you let me know, because I would like the opportunity to be present or have my attorneys present.
Defendant objected to that language and, in an effort to compromise, offered to accept a revised authorization which included the following language:
The purpose of the requested interview with the physician is solely to assist defense counsel at trial. The physician is not obligated to speak with defense counsel prior to trial. The interview is voluntary.
The parties were unable to reach an agreement as to the language to be included on the authorization, and defendant moved to compel plaintiff to provide revised authorizations. Supreme Court granted defendant’s motion, ordering plaintiff to provide a revised HIPAA-compliant authorizations containing defendant’s proposed language, and plaintiff appealed.
The Supreme Court’s decision was affirmed. In so affirming, the Fourth Department acknowledged that the wording that was approved by the court is similar to the language contained in the standard HIPAA-compliant form allowing plaintiff’s treating physicians to speak with defense counsel and, as such, the trial court did not abuse its broad discretion in granting defendant’s motion as to the language to be used in the revised authorizations.
In Sky v. Catholic Charities of Buffalo, NY, et al, (4th Dept., May 7, 2021), the defendant moved the Supreme Court to compel plaintiff to execute a HIPAA-compliant medical authorization permitting the defendant to speak with plaintiff’s treating physician. The motion was granted, and, in response, plaintiff provided an authorization form which was modified. The Court rejected plaintiff’s additional language, noting that plaintiff’s proposed alterations were largely redundant to the standardized form.
Defendant Did Not Meet Initial Burden on Summary Judgment Motion Where Its Own Evidence Created a Triable Issue of Fact
In Dill v. Thomas Estates Manufactured Housing Community, LLC, et al, (4th Dept., May 7, 2021), plaintiff was injured after she fell while attempting to descend an allegedly hazardous and/or defective set of stairs on the exterior of a manufactured home. The manufactured home is located on property owned by defendant Thomas Estates Manufactured Housing Community, LLC (hereinafter “Thomas”). Following discovery, defendant Thomas moved for summary judgment arguing that it did not owe a duty to the plaintiff because it relinquished complete control of the premises to the owner of the manufactured home.
In support of its motion, defendant Thomas submitted evidence which established that Thomas’ property manager periodically conducted property inspections of the manufactured homes by driving through the property looking for safety issues and building code violations. These inspections included the exterior stairs which allegedly caused plaintiff’s accident.
Defendant Thomas also submitted evidence that prior to the plaintiff’s accident, its property manager issued a “Community Rules Violation Notice” with respect to the stairs at issue, which addressed the property manager’s belief that the stairs in question do not comply with the applicable building code.
The defendant’s summary judgment motion was denied, and the decision was affirmed by the Appellate Division, Fourth Department. In so holding, the Appellate Division agreed that the evidence submitted by Thomas itself raised triable issues of fact as to whether Thomas had relinquished all control to the owners of the manufactured homes. The Court further noted that questions of fact existed as to whether Thomas was on notice of any hazardous or defective condition of the stairs in light of its property manager’s inspections and opinion that the stairs were not in compliance with the building code.
Questions of Fact Preclude a Finding in Favor of Defense and Indemnification
Parsons McKenna Construction Co., Inc., et al v. Allied Insurance Companies, et al, (4th Dept. May 7, 2021) is a declaratory judgment action where Parsons sought a declaration that defendant Allied Insurance was required to defend and indemnify Parsons with respect to an underlying matter where an injured worker asserted claims to recover damages for injuries that he sustained while working on a construction project. Plaintiff Parsons was the General Contractor for the construction project, and contracted with the injured worker’s employer to perform certain work for project.
Defendant Allied Insurance issued an insurance policy to the laborer’s employer in connection with the construction project listing Parson as an additional insured with respect to “liability for ‘bodily injury’ … caused by [the employer’s] ongoing operations for [Parsons] … and only to the extent that such ‘bodily injury’ … is caused by [the employer’s] negligence, acts or omissions…”
The defendant moved for summary judgment to dismiss the complaint, and plaintiff cross-moved, seeking a declaration that Allied Insurance was required to defend and indemnify Parsons with respect to the underlying personal injury matter. The Supreme Court denied defendant’s motion for summary judgment, and granted plaintiff’s cross-motion, entering a judgment that the defendant is obligated to defend and indemnify Parsons.
The defendant appealed, and the Fourth Department modified the decision of the Supreme Court, finding that although Parsons was listed as an additional insured and injured party in the underlying matter was “performing operations” on his employer’s behalf, there existed questions of fact which would preclude an award of summary judgment. The plaintiff’s cross-motion was therefore denied and the declaration was vacated.
Prepared by Katie L. Renda