Johnnie O‘NEAL, Plaintiff-Appellant, v. Jose MORALES, New York City Housing Authority, Defendants-Appellees,
No. 16-2901-cv
United States Court of Appeals, Second Circuit.
February 10, 2017
C. Repudiation
Plaintiffs appeal the district court‘s award of partial summary judgment in WQIS‘s favor on the issue of repudiation. Although it is not clear that repudiation will remain an issue after the district court resolves the question of interpretation of the Policy on remand, we consider plaintiffs’ arguments given that the issue is clear and fully briefed.
We review an award of summary judgment de novo and will affirm only if the record, viewed in the light most favorable to the party against whom judgment was entered, shows there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 140 (2d Cir. 2008). In New York, “a repudiation of liability by an insurer on the ground that the loss is not covered by the policy operates as a waiver of the notice requirements contained in the policy.” Burt Rigid Box, Inc. v. Travelers Prop. Cas. Corp., 302 F.3d 83, 96 (2d Cir. 2002). The party claiming repudiation must show that the other party “distinctly, unequivocally, and absolutely refused to perform its obligations under the policy,” Varda, Inc. v. Ins. Co. of N. Am., 45 F.3d 634, 638 (2d Cir. 1995), by denying its “intention or [] duty to shape its conduct in accordance with the provisions of the contract,” Seward Park Hous. Corp. v. Greater N.Y. Mut. Ins. Co., 43 A.D.3d 23, 836 N.Y.S.2d 99, 105 (2007) (quoting Wurm v. Commercial Ins. Co. of Newark, 308 A.D.2d 324, 766 N.Y.S.2d 8, 12 (2003)). There is no repudiation if the insurer, in denying liability under the insurance contract, appeals to the authority of the provisions and endeavors to apply them. Id.
Here, upon de novo review of the record and under the above principles, we conclude the district court properly held that WQIS‘s conduct constituted a disclaimer of coverage under the contract, not a repudiation of its contractual obligations. We therefore affirm the district court‘s grant of partial summary judgment on the issue for substantially the reasons given by the magistrate judge in his report and recommendation, which the district court accepted and adopted in its April 8, 2014 order.
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Accordingly, we AFFIRM the judgment of the district court to the extent it granted partial summary judgment on the issue of repudiation, and we VACATE the judgment to the extent it granted partial judgment on the pleadings on the issue of contract interpretation. We REMAND for further proceedings consistent with this order.
APPEARING FOR APPELLANT: JASON LEVENTHAL, Leventhal Law Group, P.C., Brooklyn, New York.
APPEARING FOR APPELLEES: PATRICK J. LAWLESS, Wilson Elser Moskowitz Edelman & Dicker LLP, New York, New York.
PRESENT: BARRINGTON D. PARKER, REENA RAGGI, CHRISTOPHER F. DRONEY, Circuit Judges.
SUMMARY ORDER
Plaintiff Johnnie O‘Neal, whose 1985 state rape and robbery convictions were vacated in 2013 after reinvestigation by the New York City District Attorney, appeals the dismissal of his claim for denial of a fair trial brought under
O‘Neal challenges the district court‘s determination that Morales was entitled to both absolute prosecutorial and testimonial immunity. See O‘Neal v. City of New York, 196 F.Supp.3d 421, 429-32 (S.D.N.Y. 2016). We need not address testimonial immunity because we conclude that Morales‘s challenged actions undertaken at the behest of the Assistant District Attorney (“ADA“) are shielded by prosecutorial immunity.
“Prosecutorial immunity from
Two weeks before trial in this case, the prosecutor requested that Morales visit the rape victim‘s 10th-floor apartment to ascertain specific information relevant to anticipated testimony, specifically, whether—as the victim and her mother would testify—facial features of passers-by on the street could be discerned from their apartment window. While field fact-gathering is consistent with the investigatory function, the timing of the prosecutor‘s request and the ultimate use of the information so obtained as trial testimony establish that the investigative activity here was in furtherance of the advocacy function of preparing for judicial proceedings. See Buckley v. Fitzsimmons, 509 U.S. at 273; see also DiBlasio v. Novello, 344 F.3d 292, 300-01 (2d Cir. 2003) (recognizing importance of timing in determining whether function is advocacy). Indeed, O‘Neal‘s allegations admit of no other inference than that the ADA asked Morales to determine what could be discerned from the 10th-floor window for purposes of “evaluating and organizing” direct identification evidence by the victim and her mother. Hill v. City of New York, 45 F.3d at 661. No different conclusion is warranted because the prosecutor then called Morales to testify to what he had been able to see from the victim‘s window. See Imbler v. Pachtman, 424 U.S. 409, 431 n.33 (1976) (noting prosecutor‘s preparation for trial “may require the obtaining, reviewing, and evaluating of evidence” (emphasis added)). In sum, because Morales was carrying out activity “intimately associated with the judicial phase of the criminal process,” id. at
O‘Neal‘s attempt to distinguish Hill on the grounds that Morales and the ADA “were not working together,” but performing “separate, distinct, and independent functions,” Appellant‘s Br. 18, lacks support in the pleadings. Although Morales was not an employee of the ADA, he investigated what could be seen from the victim‘s apartment only because the ADA requested that he do so shortly before trial, and only to obtain a specific piece of information relevant to anticipated trial testimony. These allegations do not admit a plausible inference that, in going to the victim‘s apartment and reporting back to the prosecutor on what was visible therefrom, Morales was carrying out an independent, “specific, non-discretionary, investigatory function . . . separate and distinct from the prosecutor‘s function as an advocate.” Id. at 21. Rather, the pleadings demonstrate that Morales was acting in concert with the ADA in preparing for trial.
We have considered O‘Neal‘s remaining arguments and conclude that they are without merit. Accordingly, the July 25, 2016 judgment of the district court is AFFIRMED.
PRESENT: BARRINGTON D. PARKER, REENA RAGGI, CHRISTOPHER F. DRONEY
Circuit Judges