What Should the Judge Do When the Prosecutor Refuses to Show Up for a Murder Trial?
Matter of Clegg v Rounds, 2023 NY Slip Op 06181, Third Dept 11-30-23
In a Construction-Accident Case, What Is the Remedy When the Verdict Is Against the Weight of the Evidence?
Isaac v 135 W. 52nd St. Owner LLC, 2023 NY Slip Op 06085, First Dept 11-28-23
Can You Bring a Motion to Reform a Stipulation of Settlement “Incorporated But Not Merged” in the Divorce?
Anderson v Anderson, 2023 NY Slip Op 06108, Second Dept 11-29-23
Has the Petitioner Prevailed in a FOIL Action If Some of the Requested Information Is on a Public Website?
Matter of Lane v County of Nassau, 2023 NY Slip Op 06139, Second Dept 11-29-23
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THE JUDGE IN THIS SORA RISK-LEVEL PROCEEDING DID NOT MAKE DETAILED FINDINGS OF FACT, REQUIRING REMITTAL; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, IN PART BECAUSE COUNSEL DID NOT ARGUE FOR A DOWNWARD DEPARTURE (THIRD DEPT).
The Third Department, reversing County Court’s level-three SORA risk-assessment, noted that the judge failed to set forth all of the relevant findings of fact and determined defense counsel was ineffective. Defense was not aware that youthful offender adjudications can be considered by the SORA court and defense counsel failed to argue for a downward departure. The departure would have been warranted because defendant, who was 17 at the time, had been charged with a misdemeanor based on having sex with his girlfriend:
Failure to comply with the statutory mandate to make detailed findings on the record would alone require that the matter be remitted to County Court … . * * *
The only argument advanced by defendant’s counsel at the SORA hearing was a challenge to the assessment of 30 points under risk factor 9, on the basis that a youthful offender adjudication should be precluded in assessing defendant’s sex offender classification. That argument, however, was devoid of merit … , and demonstrated counsel’s unfamiliarity with existing and applicable case law … . * * *
… [Counsel] did not request a downward departure from the presumptive risk level three classification. The crime underlying the youthful offender adjudication was the class A misdemeanor of sexual misconduct … , stemming from defendant, who had just turned 17, having sexual intercourse with his girlfriend, who was about two months younger. Downward departure has been found appropriate where there is a “relatively slight age difference between [the] defendant and the victim [and] undisputed evidence that the victim’s lack of consent was premised only on her inability to consent by virtue of her age” … . Notwithstanding facts and case law that could support a reasonable argument for a downward departure here, counsel failed to make such a request. In our view, the foregoing establishes that defendant was deprived of the effective assistance of counsel … . People v Wilcox, 2023 NY Slip Op 06175, Third Dept 11-30-23
Practice Point: The judge in a SORA risk-level proceeding is required to make detailed findings of fact.
Practice Point: Defense counsel in a SORA risk-level proceeding is ineffective if counsel is not aware youthful offender adjudications can be considered by the SORA court.
THE BOARD’S REVERSAL OF THE WORKERS’ COMPENSATION LAW JUDGE’S FINDING CLAIMANT HAD NOT MADE A WILLFUL MISREPRESENTATION WAS BASED ON SPECULATION AND SURMISE (THIRD DEPT).
The Third Department, reversing (modifying) the Worker’s Compensation Board, determined the Board’s finding that claimant made a willful misrepresentation was based upon speculation and surmise:
… [T]he Board reversed the WCLJ, who had found “no evidence of a wi[l]lful misrepresentation with the intent to deceive either the Board or the carrier or anyone [who] has an interest.” The Board’s contrary determination relied in part upon what it characterized as a discrepancy between claimant’s testimony during two different appearances. In 2015, during a brief appearance to find jurisdiction and set the matter for trial, claimant’s attorney asked her whether she was “suing any third party for injuries,” and she responded, “Yes.” Her attorney then immediately asked, “Only this claim?” to which she also replied, “Yes.” The WCLJ interjected, “We have to ask to see if there is a Supreme Court action.” Claimant’s attorney then asked about the date of the next hearing[*3], the WCLJ stated a time and expected duration and the employer’s attorney is recorded as having added, “Case was not even filed.” The WCLJ then directed that the record be held, and an off-record discussion took place, after which the appearance concluded. In 2016, claimant was asked during a hearing whether she had sued anyone, and she repeatedly denied having done so. When questioned about the foregoing in 2021, she explained that the 2016 denial was based upon her belief that, because she was no longer pursuing her third-party action, it did not constitute bringing a lawsuit.
The Workers’ Compensation Board characterized claimant’s 2015 testimony as “confirm[ing] that she was suing a third party.” It noted the significance of the inconsistency between that purported confirmation and her subsequent denials, discredited her 2021 explanation that she denied having sued anyone because she lacked understanding of the law and concluded that she willfully made false statements in violation of Workers’ Compensation Law § 114-a.
… [W]e find the Board’s characterization of claimant’s 2015 testimony to be based upon speculation and surmise … . Matter of Salvia v Nutritional Frontiers LLC, 2023 NY Slip Op 06177, Third Dept 11-30-23
Practice Point: Where the Workers’ Compensation Board reverses a finding by the Workers’ Compensation Law Judge based solely upon surmise and speculation, the court will reverse the Board.
THE REPEAL OF THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) DID NOT APPLY RETROACTIVELY; THEREFORE THE STATUTE CONFERRED IMMUNITY ON DEFENDANT NURSING HOME RE: COVID-19 PRECAUTIONS; PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT THE ADEQUACY OF THE COVID PRECAUTIONS TAKEN BY DEFENDANT NURSING HOME (THIRD DEPT).
The Third Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Ceresia, determined that the Emergency or Disaster Treatment Protection Act (EDTPA), which conferred immunity on nursing homes during the COVID-19 pandemic, precluded the COVID-related negligence action against defendant nursing home. The Third Department ruled that the repeal of the EDTPA should not be applied retroactively. Therefore the statute was in effect at the relevant time. The Third Department further held that the evidence of proper COVID-19 precautions offered by the nursing home was not refuted by the plaintiff:
… [T]he ultimate repeal of the EDTPA contained no express indicator of retroactivity — rather, the Legislature simply stated that the repeal would “take effect immediately” … . * * *
Turning to plaintiff’s argument that retroactivity is appropriate because the repeal was remedial in nature, “[c]lassifying a statute as ‘remedial’ does not automatically overcome the strong presumption of prospectivity since the term may broadly encompass any attempt to supply some defect or abridge some superfluity in the former law” … . Based upon all of the foregoing, and noting that the retroactive application of the repeal of the EDTPA would merely punish healthcare providers “for past conduct they cannot change — an objective [that has been] deemed illegitimate as a justification for retroactivity” … we hold that the repeal of the EDTPA was not retroactive … . Whitehead v Pine Haven Operating LLC, 2023 NY Slip Op 06180, Third Dept 11-30-23
Practice Point: The repeal of the Emergency or Disaster Treatment Protection Act (EDTPA) should not be applied retroactively to remove immunity related to COVID precautions conferred on a nursing home during the life of the statute.
THE PROSECUTOR REFUSED TO PARTICIPATE IN THE MURDER TRIAL ARGUING THAT THE JUDGE’S PRECLUSION OF EVIDENCE MADE THE PROSECUTION IMPOSSIBLE; IN THE PROSECUTOR’S ABSENCE AT TRIAL, THE JUDGE DISMISSED THE INDICTMENT PURSUANT TO CPL 290.10; THE JUDGE DID NOT HAVE AUTHORITY TO DISMISS THE INDICTMENT; WRIT OF PROHIBITION GRANTED (THIRD DEPT).
The Third Department, in a full-fledged opinion by Justice Aarons, issued a writ of prohibition against the respondent County Judge nullifying the order dismissing the murder indictment against defendant. The petitioner was the district attorney (DA) who was prosecuting defendant. The DA disagreed with certain preclusion orders issued by the Judge and argued the prosecution of the defendant was rendered impossible by the preclusion of evidence. The DA refused to participate in the trial. At trial, in the DA’s absence, the Judge dismissed the indictment pursuant to Criminal Procedure Law (CPL) 290.10. Because such a dismissal requires a trial as a prerequisite, and because there was no trial, the Third Department held the Judge did not have the authority to dismiss the indictment:
Upon a criminal defendant’s motion, a court may dismiss any count of an indictment on the basis that the trial evidence was not legally sufficient to establish the charged crime (see CPL 290.10 [1] [a]). Critically, a court is empowered to do so “[a]t the conclusion of the [P]eople’s case or at the conclusion of all the evidence” (CPL 290.10 [1]). Based on this language, a dismissal under CPL 290.10 contemplates, at the very least, that a prosecutor actually present a case. This did not occur in the underlying criminal proceeding. Petitioner did not deliver an opening statement, did not call witnesses and did not tender documentary evidence to be received by respondent. Without a case by petitioner, respondent could not dismiss the indictment under CPL 290.10 … . In essence, the dismissal of the indictment was due to the default of petitioner, which respondent lacked authority to do … . Matter of Clegg v Rounds, 2023 NY Slip Op 06181, Third Dept 11-30-23
Practice Point: If the prosecutor refuses to participate in the trial, the judge cannot dismiss the indictment pursuant to CPL 290.10. The statute requires a trial as a prerequisite. Here there was no trial. The prosecutor’s petition for a writ of prohibition against the judge was granted. The “trial” was nullified.
THE JUDGE DID NOT INCLUDE FINDINGS OF FACT IN THE SORA RISK-ASSESSMENT ORDER; THE ATTORNEY GENERAL WAS NOT NOTIFIED OF DEFENDANT’S CONSTITUTIONAL ARGUMENTS; ORDER REVERSED (THIRD DEPT).
The Third Department, reversing County Court, determined County Court’s order failed to included the required findings of fact. In addition, the Attorney General should have been notified of defendant’s constitutional arguments:
County Court’s order failed to set forth its findings of fact and conclusions of law as required by Correction Law § 168-n (3). The March 2022 order states that at a hearing held on an unspecified date, the court “set out its findings of fact . . . which support the assignment of points for each risk factor.” No such findings are set forth in the order and, if placed on the record at the hearing, no hearing transcript is contained in the record. Absent any record findings of fact and conclusions of law by the court, this Court is precluded from conducting a meaningful appellate review of the assessment of points and defendant’s risk level classification. As such, the matter must be remitted … . Further, to the extent that defendant raises direct constitutional challenges to certain portions of Correction Law § 168, as set forth in his memorandum submitted to County Court, the record is devoid of any indication that the Attorney General was timely notified of such challenges or whether the court ruled on any of the issues raised. In view of the foregoing, County Court’s March 30, 2022 order is reversed and the matter remitted for further proceedings. People v Kelsey, 2023 NY Slip Op 06186, Third Dept 11-30-23
Practice Point: The Correction Law requires that an order in a SORA risk-level proceeding include findings of fact.
Practice Point: Where a defendant raises constitutional arguments in a SORA risk-level proceeding, the Attorney General must be notified.
THE DENIAL OF PETITIONER-INMATE’S RIGHT TO CALL WITNESSES REQUIRED ANNULMENT OF ONE MISBEHAVIOR DETERMINATION AND EXPUNGEMENT OF ANOTHER (THIRD DEPT).
The Third Department annulled one misbehavior determination and expunged another because petitioner was denied his right to call witnesses:
… [The Hearing Officer improperly denied petitioner’s request to call as a witness one of the correction officers who was present during the search of petitioner’s cell and endorsed the second misbehavior report (see 7 NYCRR 254.5). Given the passage of time, respondent does not seek a rehearing and requests that the determination in relation to the second misbehavior report be annulled.
… [T]he determination in relation to the first misbehavior report must also be annulled on the ground that petitioner was improperly denied his right to call a witness. The record reflects that petitioner, who denied the assault and claimed he was being set up, requested to call as a witness the alleged victim of the assault. Although there was a discussion at the hearing that the alleged victim would have to agree to testify, there is no indication that the alleged victim refused to testify or that the Hearing Officer made any effort to procure him as a witness. “[W]here the record does not reflect any reason for the witness’ refusal to testify, or that any inquiry was made of him [or her] as to why he [or she] refused or that the [H]earing [O]fficer communicated with the witness to verify his [or her] refusal to testify, there has been a denial of the [incarcerated individual’s] right to call witnesses as provided in the regulations” (… see 7 NYCRR 254.5). As we view the unexplained outright denial of a witness commensurate to the denial of petitioner’s constitutional right to call witnesses, expungement rather than remittal for a new hearing is the appropriate remedy … . Matter of Diaz v Annucci, 2023 NY Slip Op 06187, Third Dept 11-30-23
Practice Point: In prison misbehavior proceedings the erroneous or unexplained denial of an inmate’s right to call witnesses is reversible error.
AN ESCAPE LADDER BOLTED TO THE CEILING OF A PERSONNEL HOIST DETACHED AND FELL ON PLAINTIFF; PLAITIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).
The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this Labor Law 240(1) action should have been granted. Plaintiff was in a personnel hoist when an escape ladder bolted to the ceiling detached and fell on him:
The injured plaintiff … demonstrated that the access ladder “required securing for the purposes of the undertaking” … . … [T]he hoist — an enumerated safety device — was “inadequate for its purpose of keeping plaintiff safe while engaged in an elevation-related activity” … .Safeway’s [defendant’s] hoist mechanic testified that the hoists were inspected every ninety days, which involved the performance of a drop test to ensure the car stopped, a check that all switches and safety features were operational, and a visual inspection of the ladder, including the wingnut, washer, and bolt, to confirm it was secured to the ceiling. He further testified that the ladder was provided as an “escape ladder” for workers to exit the hoist, thus rendering it an “essential component of the hoist” … . Tisselin v Memorial Hosp. for Cancer & Allied Diseases, 2023 NY Slip Op 06210, First Dept 11-30-23
Practice Point: Here an escape ladder bolted to the ceiling of a personnel hoist fell on plaintiff. Plaintiff should have been awarded summary judgment on the Labor Law 240(1) cause of action.
IN A REAR-END COLLISION CASE, DEFENDANT’S ALLEGATION PLAINTIFF STOPPED SUDDENLY DOES NOT RAISE A QUESTION OF FACT (FIRST DEPT).
The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end traffic accident cause should have been granted. Defendant’s allegation plaintiff stopped suddenly did not raise a question of fact:
It is well established that a rear-end collision with a slowing or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle … .
… [D]efendant failed to provide a nonnegligent explanation for the accident … . Defendant failed to establish that she maintained a safe following distance (see Vehicle and Traffic Law § 1129[a] … ) and that any repeated braking by plaintiff was not foreseeable due to the existence of the construction zone and 15 mile per hour speed limit. Defendant failed to establish that given the circumstances she could have “reasonably expected that traffic would continue unimpeded” … . While defendant claims that plaintiff made a sudden stop, a “claim by the rear driver that the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence” … . Ahmad v Behal, 2023 NY Slip Op 06196, First Dept 11-30-23
Practice Point: In a rear-end collision case, alleging the car in front stopped suddenly does not defeat the presumption that the rear driver was negligent.
THE RIGHT TO SEEK REMOVAL OF A CLOUD ON TITLE IS NEVER BARRED BY A STATUTE OF LIMITATIONS (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, determined the causes of action which sought to remove a cloud on title should not have been dismissed as time-barred because the right to that relief is never barred by a statute of limitations:
Supreme Court erred in granting those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(5) to dismiss as time-barred the first and second causes of action, which sought to set aside and cancel, as null and void, the two mortgages held by the defendants. The Trust, as the alleged owner of the subject property, is “presumptively entitled to possession” … , and the first and second causes of action seek to remove the cloud on title resulting from the allegedly fraudulent mortgages. “[W]here a plaintiff seeks to remove a cloud on title, the right to such relief ‘is never barred by the Statute of Limitations. It is a continuing right which exists as long as there is an occasion for its exercise'” … . Mostafa v Pension Solutions, LLC, 2023 NY Slip Op 06134, Second Dept 11-29-30
Practice Point: The right to seek removal of a cloud on title is never barred by a statute of limitations.
ONLY CONTRACTORS AND OWNERS AND THEIR AGENTS CAN BE LIABLE UNDER LABOR LAW 240(1) AND 241(6); HERE DEFENDANT DEMONSTRATED IT WAS NOT AN AGENT FOR ANY POTENTIALLY LIABLE PARTY BECAUSE IT EXERCISED NO SUPERVISORY CONTROL OVER THE WORKSITE (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, determined the Labor Law 240(1) and 241(6) causes of action against one defendant (G Buddy) should have been dismissed because G Buddy had no control or supervisory duties at the worksite:
The express terms of Labor Law §§ 240 and 241(6) provide that “the nondelegable duties imposed by those statutes apply only to ‘contractors and owners and their agents'” … . “To hold a defendant liable as an agent of the general contractor or the owner for violations of Labor Law §§ 240(1) and 241(6), there must be a showing that it had the authority to supervise and control the work that brought about the injury” … . Here, G Buddy established, prima facie, that it was not an agent of either the Board or the contractor at the time of the plaintiff’s accident by submitting evidence demonstrating that G Buddy had no control over or supervisory responsibilities on the worksite … . Hossain v Condominium Bd. of Grand Professional Bldg., 2023 NY Slip Op 06128, Second Dept 11-29-23
Practice Point: In order to hold a party liable under Labor Law 240(1) or 241(6) as an agent of a contractor or owner, the party must have exercised supervisory control over the worksite.
A DEEDED EASEMENT CAN ONLY BE CREATED WHEN THE GRANTOR OWNS THE DOMINANT AND SERVIENT PROPERTY; HERE THE CRITERIA FOR A DEEDED EASEMENT WERE NOT MET; BUT THE CRITERIA FOR A PRESCRIPTIVE EASEMENT WERE MET (SECOND DEPT).
The Second Department, reversing Supreme Court, determined plaintiffs did not demonstrate they had a deeded easement over the disputed land, but did demonstrate they had a prescriptive easement, although the extent of the easement must be determined at trial:
“An easement is not a personal right of the landowner but is an appurtenance to the land benefitted by it . . . and a grant of the land carries with it the grant of the easement” … . “An easement appurtenant occurs when [an] easement is created in writing, subscribed by the creator, and burdens the servient estate for the benefit of the dominant estate” … . However, “[t]he long-accepted rule in this State holds that a deed with a reservation or exception by the grantor in favor of a third party, a so called ‘stranger to the deed,’ does not create a valid interest in favor of that third party” … . Thus, “[f]or an easement by grant to be effective, the dominant and servient properties must have a common grantor” … .
Here, the defendant made a prima facie showing of his entitlement to judgment as a matter of law declaring that the plaintiffs do not have a deeded easement over the disputed area by “establishing that, at the time the easement was purportedly created, the grantor owned the servient property, but not the dominant property … . * * *
… [P]laintiffs established … their predecessors in interest acquired an easement by prescription over the disputed area, which easement ran with the land when the plaintiffs purchased the property in 2018 … . Notably, the defendant learned of the purported deeded easement in 2005 and assumed that it was valid until at least July 2019. Therefore, the defendant’s relationship to the dominant estate’s use of the driveway area was one of acquiescence, rather than permission … . … Supreme Court erred in denying that branch of the plaintiffs’ cross-motion which was for summary judgment declaring that they have a prescriptive easement over the disputed area. Daniello v Wagner, 2023 NY Slip Op 06116, Second Dept 11-29-23
Practice Point: The criteria for a deeded easement and a prescriptive easement are clearly explained.
THE STIPULATION RE: SHARING HUSBAND’S PENSION AT A FUTURE DATE WAS NOT AMBIGUOUS AND NEED NOT BE REFORMED; THE STIPULATION WHICH WAS INCORPORATED BUT NOT MERGED INTO THE DIVORCE JUDGMENT CANNOT BE REFORMED PURSUANT TO A MOTION, A PLENARY ACTION IS REQUIRED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the stipulation that was incorporated but not merged into the divorce judgment was not ambiguous and should not have reformed the stipulation based upon a mutual mistake. The stipulation was not ambiguous and required the husband to share his pension when he turned 62. In addition, reformation of the stipulation was not appropriate pursuant to a motion. A plenary action is required to reform stipulation which is incorporated but not merged into the judgment of divorce:
… Supreme Court should have rejected the plaintiff’s contention that the stipulation of settlement was ambiguous. The interpretation of the stipulation advanced by the plaintiff would render meaningless the terms of the stipulation providing that distribution of pension benefits to the plaintiff would commence in the future, when the defendant reached the age of 62 … . Inasmuch as the language of the stipulation disclosed the parties’ intent to defer the plaintiff’s pension distribution until the defendant reached age 62, at a time he would have been eligible for regular service retirement benefits, and is not subject to more than one reasonable interpretation, the agreement is not ambiguous … .
… [T]o the extent that the Supreme Court determined that the stipulation of settlement was affected by a mutual mistake, reformation was not appropriate. A motion is not the proper vehicle for challenging a separation agreement incorporated but not merged into a judgment of divorce. Rather, the plaintiff was required to commence a plenary action to reform the stipulation … . In any event, reformation of the stipulation was unwarranted, as the parties’ mistake regarding the category of benefits the defendant would receive did not “involve a fundamental assumption of the contract” … . Anderson v Anderson, 2023 NY Slip Op 06108, Second Dept 11-29-23
Practice Point: Here the judge should not have determined the stipulation incorporated but not merged into the judgment of divorce was ambiguous because it was subject to only one interpretation.
Practice Point: A stipulation which is incorporated but not merged into the judgment of divorce cannot be reformed pursuant to a motion. A plenary proceeding must be commenced.
PLAINTIFF WAS INJURED DIVING UNDER A TRUCK WHEN THERE WAS AN EXPLOSION AS A BROKEN UTILITY POLE WITH LIVE ELECTRIC WIRES WAS BEING HOISTED; THE WORK WAS NOT ROUTINE MAINTENANCE SO THERE WERE QUESTIONS OF FACT PRECLUDING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS ON THE LABOR LAW 241(6) CAUSE OF ACTION; QUESTIONS OF FACT ABOUT THE CAUSE OF THE EXPLOSION AND SUPERVISORY CONTROL PRECLUDED SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS ON THE LABOR LAW 200 CAUSE OF ACTION (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, determined defendants’ summary judgment motion on the Labor Law 241(6) and 200 causes of action should not have been granted. Plaintiff was 150 feet away from a broken utility pole which needed to be removed. The pole was damaged when struck by a vehicle and the attached electric wires were live. Plaintiff was injured diving under a truck when there was an explosion as the pole was being hoisted:
… [T]he defendants failed to establish, prima facie, that the work they were performing at the time of the incident constituted routine maintenance or repairs not within the ambit of Labor Law § 241(6) … . The defendants’ evidentiary submissions indicated that the incident occurred while the defendants were hoisting a portion of the utility pole to enable the total replacement of the pole, which had been severely damaged after a vehicle hit the pole. Thus, the defendants’ evidentiary submissions did not demonstrate, prima facie, that the work involved merely “replacing components that require replacement in the course of normal wear and tear” …. . * * *
… [T]he defendants failed to establish, prima facie, that they had no authority to supervise or control the work being performed by the defendants’ own employees at the time of the incident … . Further, to the extent the plaintiff alleged that the incident was caused by a dangerous condition, the defendants did not address the issues of whether they created or had actual or constructive notice of a dangerous condition … . Accordingly, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 200 … . Ricottone v PSEG Long Is., LLC, 2023 NY Slip Op 06155, Second Dept 11-29-23
Practice Point: Labor Law 241(6) does not apply to routine maintenance. Replacing a utility pole struck by a vehicle is not routine maintenance.
Practice Point: Where there is a question of fact about the cause of dangerous condition and whether defendant has supervisory control over the worksite, summary judgment in favor of defendant on a Labor Law 200 cause of action is precluded.
THE 90-DAY DEMAND REQUIRED BY CPLR 3216 WAS NOT PROVIDED BY THE COURT’S ORDER; THE ACTION SHOULD HAVE BEEN RESTORED TO THE ACTIVE CALENDAR WITHOUT A SHOWING OF MERIT; THE ISSUE, FIRST RAISED ON APPEAL, WAS PROPERLY CONSIDERED BY THE APPELLATE COURT (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the action should have been restored to the active calendar because the 90-day demand required by CPLR 3216 was never provided. The issue was properly considered for the first time on appeal because, had the issue been raised below, it could not have been ignored:
Here, the order dated June 26, 2018 … directed the filing of a note of issue by June 29, 2018, but failed to provide the plaintiff with 90 days within which to comply with that directive. Thus, the order dated June 26, 2018, did not constitute a valid 90-day demand pursuant to CPLR 3216 … . Moreover, the order dated June 26, 2018, did not contain the requisite language advising that failure to file a note of issue would be the basis for a motion to dismiss … . …
Although the plaintiff’s contentions i… are raised for the first time on appeal, they may be reached, as they involve issues of law appearing on the face of the record that could not have been avoided if they had been raised at the proper juncture … . OneWest Bank, FSB v Segal, 2023 NY Slip Op 06146, Second Dept 11-29-23
Practice Point: The failure to provide the 90-demand required by CPLR 3216 is reversible error which can be raised for the first time on appeal.
PETITIONER-REPORTER PREVAILED IN THE FOIL ACTION DESPITE THE AVAILABILITY OF SOME OF THE REQUESTED INFORMATION ON A PUBLIC WEBSITE; THEREFORE PETITIONER WAS ENTITLED TO ATTORNEY’S FEES AND LITIGATION COSTS (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, determined petitioner-reporter’s request for an unredacted telephone directory for employees of the county police department should have been granted because the county did not demonstrate the information was exempt from disclosure. In addition, petitioner should have been awarded attorney’s fees and litigation costs because petitioner had prevailed in the FOIL action. The fact that some of the requested information (names and salaries of police officers, for example) was available on a public website, to which petitioner was referred, did not warrant a finding petitioner had not prevailed:
… Supreme Court improperly, in effect, denied that branch of the petition which was to compel the production of a NCPD [Nassau County Police Department] telephone directory, without redactions, insofar as asserted against the County and the NCPD, as those respondents failed to demonstrate the applicability of an exemption to disclosure warranting redaction of the telephone directory …, which did not contain any personal telephone or cell phone numbers (see Public Officers Law § 89[2-b][b]). * * *
… [T]he petitioner substantially prevailed in this proceeding by obtaining a significant portion of the records and information responsive to the FOIL request after the commencement of the proceeding … . Contrary to the respondents’ contention, the purported public availability of the requested records and information does not preclude a determination that the petitioner substantially prevailed … . Moreover, the record reflects that the respondents did not have a reasonable basis for the initial denial of the petitioner’s FOIL request in its entirety … . Matter of Lane v County of Nassau, 2023 NY Slip Op 06139, Second Dept 11-29-23
Practice Point: Unless the municipality can show the information sought by a FOIL request is exempt from disclosure the information must be disclosed.
Practice Point: The fact that information sought in a FOIL request is available on a public website, to which the petitioner is referred, does not preclude a finding that petitioner prevailed in the FOIL proceeding.
THE JURY’S FINDING THAT THE SCAFFOLD PROVIDED ADEQUATE PROTECTION FOR THE PLAINTIFF IN THIS SCAFFOLD-FALL CASE WAS AGAINST THE WEIGHT OF THE EVIDENCE; NEW TRIAL REQUIRED (FIRST DEPT).
The First Department, setting aside the defense verdict and ordering a new trial in this Labor Law 240(1) scaffold-fall action, determined the scaffold did not adequately protect the plaintiff:
The scaffold on which plaintiff was working at the time of his accident failed to adequately protect him from a height-related hazard when his core drill jerked, causing him to fall backward … . “It does not matter whether plaintiff’s fall was the result of the scaffold . . . tipping, or was due to plaintiff misstepping off its side. In [either] of those circumstances, either defective or inadequate protective devices constituted a proximate cause of the accident” … Since the remedy for a verdict that is against the weight of the evidence is a new trial … , the issues of whether defendants violated Labor Law § 240 (1), whether such violation proximately caused plaintiff’s accident and injuries, and damages should be retried. Isaac v 135 W. 52nd St. Owner LLC, 2023 NY Slip Op 06085, First Dept 11-28-23
Practice Point: In this Labor Law 240(1) scaffold-fall case, the jury’s finding that the scaffold provided plaintiff with adequate protection was deemed against the weight of the evidence. Where a jury verdict is against the weight of the evidence, a new trial is required.
THE CIVIL RIGHTS LAW, NOT THE CPLR, CONTROLS COUNTERCLAIMS FOR ATTORNEY’S FEES AND PUNITIVE DAMAGES IN A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP) ACTION (FIRST DEPT).
The First Department, reversing (modifying) Supreme Court in this Strategic Lawsuit Against Public Participation (SLAPP) proceeding, determined that the criteria for dismissal of counterclaims are those in the Civil Rights Law, not the CPLR:
In this Strategic Lawsuit Against Public Participation (SLAPP) action, the court’ s application of CPLR 3212(h) to the underlying summary judgment motion was improper, because the counterclaims “subject to the motion” were not SLAPP claims, but affirmative counterclaims for punitive damages and attorneys’ fees … .The award of attorneys’ fees and punitive damages in SLAPP actions are subject to their own statutory regime found in Civil Rights Law §§ 70-a and 76-a (anti-SLAPP statutes). The anti-SLAPP statutes contain their own requirements and evidentiary burdens that have nothing to do with CPLR 3212(h) … .
With respect to punitive damages, Civil Rights Law § 70-a(1)(c) provides that they may only be recovered upon “an additional demonstration” that the SLAPP action was commenced or continued for the sole purpose of “harassing, intimidating, punishing or otherwise maliciously inhibiting the free exercise of speech, petition or association rights.” Thus, when the court improperly applied the burden-shifting mechanism of 3212(h) to the punitive damages analysis, it effectively negated the requirement that defendants make this “additional demonstration.” …
With respect to attorneys’ fees, the pre-amendment version of Civil Rights Law § 70-a(1)(a) squarely put the burden of proof on the party advancing counterclaims to recover damages in the context of a SLAPP suit. As the November 2020 amendments to the anti-SLAPP statutes do not apply retroactively, this pre-amendment version of the statute applies … .
The pre-amendment version of Civil Rights Law § 70-a(1)(a) provided that “attorney’s fees may be recovered upon a demonstration . . . that the action involving public petition and participation was commenced or continued without a substantial basis in fact and law.” Courts have held that attorneys’ fees are discretionary under the pre-amendment statutory framework, and that it is not necessary to award attorneys’ fees “in every situation in which [an anti-SLAPP] claim is interposed” … . … [W]e find that the court providently exercised its discretion in awarding attorneys’ fees here … . 161 Ludlow Food, LLC v L.E.S. Dwellers, Inc., 2023 NY Slip Op 06076, First Dept 11-28-23
Practice Point: The analysis of counterclaims for attorney’s fees and punitive damages in a SLAPP action is controlled by the Civil Rights Law, not the CPLR.
PLAINTIFF STOOD UP FROM A DESK AND TRIPPED OVER THE BOTTOM DRAWER WHICH HAD PARTIALLY OPENED; THERE WERE QUESTIONS OF FACT WHETHER THE CONDITION WAS OPEN AND OBVIOUS AND WHETHER DEFENDANT HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the negligence action alleging plaintiff stood up from a desk and tripped on the bottom desk drawer should not have been dismissed. The defendant did not demonstrate the condition was open and obvious and did not demonstrate it did not have actual or constructive notice of the condition:
According to the plaintiff, she was sitting behind a desk and when she got up, she tripped on the bottom desk drawer which, unbeknownst to her, had become ajar. …
A condition is open and obvious if it is “readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident” … . “The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … . “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … . …
A defendant has constructive notice of a defect when it is visible and apparent, and has existed for a sufficient length of time before the accident such that it could have been discovered and corrected … . To meet its initial burden on the issue of lack of constructive notice, a defendant is required to offer evidence as to when the accident site was last cleaned or inspected prior to the plaintiff’s accident … . Cosme v New York City Dept. of Educ., 2023 NY Slip Op 06026, Second Dept 11-22-23
Practice Point: Whether a condition is open and obvious depends on the totality of the circumstances. Here plaintiff alleged she didn’t know the bottom drawer of her desk had opened and she tripped over it when she stood up from the desk. There was a question of fact whether the condition was open and obvious. The fact that the defendant did not demonstrate when the desk had last been inspected raised a question of fact about whether the defendant had constructive notice of the condition.
THE MAJORITY AFFIRMED DEFENDANT’S CONVICTIONS FOR TWO SEPARATE MURDERS WHICH WERE TRIED TOGETHER; A TWO-JUSTICE DISSENT ARGUED THE TWO PROSECUTIONS SHOULD HAVE BEEN SEVERED BECAUSE OF THE WEAKNESS OF THE EVIDENCE AND THE PROBABILITY THE JURY WOULD NOT CONSIDER THE EVIDENCE OF EACH MURDER SEPARATELY (THIRD DEPT).
The Third Department affirmed defendant’s convictions over a two-justice dissent arguing that the two charged murders should have been tried separately:
Defendant argued that the People had joined “two underwhelming cases” in hopes that the jury would be more likely to convict a “common suspect.” In opposing the motion, the People argued that the counts in the indictment were properly joinable pursuant to CPL 200.20 (2) (c) and, among other things, the People planned to call two incarcerated individuals who were housed with defendant and to whom defendant made certain admissions. At trial, both of the incarcerated individuals and the medical examiner, among others, provided testimony relevant to each of the two victims. Defendant’s motion was facially devoid of any good cause showing. * * *
From the dissent:
… [T]he People chiefly relied on circumstantial evidence, the proof linking defendant to either murder is not overwhelming, the two incidents that form the basis of these charges took place 2½ years apart and there was no unique modus operandi to link the commission of the crimes to defendant … . Further, a review of the record demonstrates that the quantum of evidence relating to each incident was not substantially similar but, rather, proof relating to the second murder is significantly more abundant in quantity and significant in scope. Despite County Court’s instruction to the jury to consider the evidence separately, there was a substantial likelihood that the jury “aggregate[d] the evidence relating to each incident” … , as it is much more likely that the jury would focus on the abhorrent common nature of the crimes than to focus on the fundamental differences of proof … . People v Mero, 2023 NY Slip Op 06000, Third Dept 11-22-23
IF THE PEOPLE WERE AWARE OF DEFENDANT’S LOCATION OUT-OF-STATE AND DID NOT EXERCISE “DUE DILIGENCE” IN SECURING HER RETURN TO NEW YORK THE SPEEDY TRIAL CLOCK WOULD NOT STOP RUNNING BASED SOLELY ON HER ABSENCE; HEARING REQUIRED (THIRD DEPT).
The Third Department, reversing County Court, determined defendant had raised questions of fact whether the People were aware of her location in Virginia between her indictment in 2013 and her return to New York in 2018. County Court, therefore, should have held a hearing on her “speedy trial” motion to dismiss. If the People were aware of her location, and did not exercise “due diligence” to secure her presence in New York, the speedy trial clock would not have been stopped based solely on defendant’s absence from the state:
“Having charged defendant with a felony, the People were required to be ready for trial within six months of the filing of the first accusatory instrument, here the felony complaint[s]” issued on September 3, 2013 … . As defendant consistently asserted her speedy trial rights, and the People did not announce readiness for trial until October 3, 2018, it was incumbent upon the People “to show that any delay beyond the statutory maximum should be excluded” … . The People primarily attempted to do so by relying upon CPL 30.30 (4) (c) (i), which renders “the period of delay resulting from [defendant’s] absence or unavailability” excludable, arguing that defendant had absconded after the shooting and remained unavailable until her arrest on August 30, 2018. Absence in that context means that the defendant’s “location is unknown and he [or she] is attempting to avoid apprehension or prosecution, or his [or her] location cannot be determined by due diligence,” while unavailability occurs “whenever [the defendant’s] location is known but his [or her] presence for trial cannot be obtained by due diligence” … . Notably, “[a]bsent a demonstration of ‘prosecutorial diligence in locating the defendant and/or securing his [or her] presence,’ the mere fact that the defendant was in another jurisdiction when the action was commenced does not entitle the People to exclude the time” … . People v Pittman, 2023 NY Slip Op 06001, Third Dept 11-22-23
Practice Point: The defendant presented documentary evidence demonstrating the People were aware of her location out-of-state and did not exercise “due diligence” in securing her return to the state for five years. She was entitled to a hearing on her “speedy trial” motion to dismiss.
ALTHOUGH DEFENDANT WAS IN A PRISON AS A VISITOR WHEN THERE WAS A CANINE ALERT TO DRUGS ON HER PERSON, THE CIRCUMSTANCES WERE SUCH THAT ANY QUESTIONING SHOULD HAVE BEEN PRECEDED BY THE MIRANDA WARNINGS; A REASONABLE PERSON WOULD NOT HAVE FELT FREE TO LEAVE; BECAUSE THEY WERE CLOSE IN TIME, BOTH HER ORAL STATEMENT AND HER POST-MIRANDA WRITTEN STATEMENT SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).
The Third Department, reversing County Court, determined the defendant, who, as a visitor in a prison, was taken aside by an investigator after a canine alert to the presence of drugs on her person, was subjected to “custodial interrogation” requiring suppression of her admission to having drugs and her subsequent written statement:
… [W]hen the canine alerted, the metal door that defendant had just passed through was closed and could only be opened by a security officer. In view of this particular setting, a reasonable person innocent of wrongdoing would not have felt that he or she was free to leave.
… [T]aking into account that the investigator took defendant aside because a canine had just alerted, as well as the purpose of having a canine at a security checkpoint, the investigator’s inquiry of defendant as to why she thought the canine alerted was not merely investigatory or a request for pedigree information. Rather, it was accusatory and designed to elicit an incriminating response. Under these particular circumstances, defendant made the initial oral statements in a custodial setting, thereby requiring Miranda warnings. In the absence of such warnings, the initial oral statements should have been suppressed … .
As to the written statement, it was given after Miranda warnings were issued. To that end, “where an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a ‘single continuous chain of events,’ there is inadequate assurance that the Miranda warnings were effective in protecting a defendant’s rights, and the warned statement must also be suppressed” … . The record reveals that defendant was interviewed by the same person and in the same room, that she gave her written statement almost immediately after the investigator’s initial inquiry as to why she thought the canine alerted and that the whole process took less than 30 minutes without any breaks. Accordingly, the written statement should have been suppressed as being tainted by the improper questioning by the investigator … . People v Kelly, 2023 NY Slip Op 06003, Third Dept 11-22-23
Practice Point: Although not always the case re: a visitor in a prison, here the circumstances warranted finding that defendant was “in custody” when she was asked a question by a prison investigator after a canine alert to drugs on her person. Because the question preceded the Miranda warnings, her statement should have been suppressed.
Practice Point: Here defendant’s post-Miranda written statement, made 30 minutes after her unwarned oral statement, should have been suppressed.
THE CONCLUSIONS OF THE PEOPLE’S ACCIDENT-RECONSTRUCTION EXPERT (WHO WAS NOT CALLED TO TESTIFY AT TRIAL) WOULD HAVE HAD AN IMPACT ON THE CONCLUSIONS DRAWN BY THE DEFENSE ACCIDENT-RECONSTRUCTION EXPERT; WITHHOLDING THE EVIDENCE FROM THE DEFENSE WAS A BRADY VIOLATION REQUIRING REVERSAL AND A NEW TRIAL (THIRD DEPT).
The Third Department, reversing defendant’s vehicular homicide and manslaughter convictions and ordering a new trial, determined expert opinion evidence constituted Brady material which was wrongfully withheld from the defense. The People’s accident-reconstruction expert in question, who did not testify at the trial, was named Pinzer. The defense accident-reconstruction expert, named Silver, testified in the CPL 440 hearing that his opinion would have been influenced by Pinzer’s findings. The driver lost control of the car which flipped several times. The defendant survived and the other occupant was ejected from the car and died. The withheld expert evidence called into question various aspects of law enforcement’s investigation of the accident, the speed of the car at the time of the accident, for example:
Silver … testif[ied] at the hearing that, although knowledge of [Pinzer’s conclusions] would not have changed his ultimate conclusion as to who was operating the vehicle, it did have a direct and significant impact on his methodology and findings. For example, had he known that the data was corrupted, he would have performed his analysis differently and explained to the jury why law enforcement’s data was unreliable; he would have also been able to rebut any challenge to his credibility for the use of multiple formulas and his own data. He also averred that, in light of the new information regarding the data, his trial testimony as to the vehicle’s speed prior to the accident — 55 to 65 miles per hour — was overstated. * * *
… [I]n view of the character of the withheld information here, the misleading disclosure that was made, the manner in which the prosecutor elected to act on Silver’s testimony of defendant’s innocence and the circumstantial nature of this case, we agree with defendant that Pinzer’s opinion … must be considered favorable to the defense. * * *
… Pinzer was an arm of the prosecution, acting on the government’s behalf, and the People had a duty to learn of his opinion, which “directly relates to the prosecution or investigation of . . . defendant’s case” … . * * *
… [T]here was no reasonable possibility that the People’s failure to disclose Pinzer’s opinion did not impact the verdict … . The prosecutor’s cross-examination of Silver and his statements in summation — which sought to both bolster the legitimacy of police work that he should have known was faulty and impugn the credibility of Silver for not exclusively relying upon same — “compounded the prejudice” to defendant … . People v Hoffman, 2023 NY Slip Op 06004, Third Dept 11-22-23
Practice Point: Here, in this vehicular homicide case, the People did not disclose the conclusions reached by their accident-reconstruction expert, who was not called to testify at trial. The defense accident-reconstruction expert would have changed some of his conclusions had he been aware of the People’s expert’s analyses. Withholding the People’s expert’s findings from the defense was a Brady violation requiring reversal and a new trial.
A POOR-QUALITY VIDEO SHOWED THE SHOOTING AND THE SHOOTER GETTING INTO THE DRIVER’S SEAT OF THE CAR WHICH WAS STOPPED AFTER A CHASE; THERE WAS NO EVIDENCE ANY OF THE OCCUPANTS GOT OUT OF THE DRIVER SIDE OF THE CAR; TWO OF THE OCCUPANTS HAD CLOTHES SIMILAR TO THOSE WORN BY THE SHOOTER; DEFENDANT’S CONVICTION WAS SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE; BUT DEFENDANT’S CONVICTION WAS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT),
The Third Department, reversing defendant’s manslaughter conviction, determined the verdict was not supported by the weight of the evidence. The shooting was captured on a video and showed the shooter getting into the driver’s seat of a vehicle which drove off. After a chase the vehicle was stopped and three persons got out of the car. There was no evidence anyone got out of the car on the driver’s side. The defendant was found by the police lying in the grass near the car. Two of the people who got out of the car were dressed in clothes similar to those seen in the poor-quality video of the shooting:
“[A]s an implicit but necessary element of each and every crime, the People must prove beyond a reasonable doubt the identity of the defendant as the person who committed the crime” … . Viewing the evidence in a neutral light, the People failed to prove beyond a reasonable doubt that defendant was the shooter. The conviction must therefore be reversed as the verdict is against the weight of the evidence … . People v Jones, 2023 NY Slip Op 06007, Third Dept 11-22-23
Practice Point: This decision demonstrates the difference between “legally sufficient evidence,” which will get by a motion for a trial order of dismissal, and a “weight of the evidence” analysis which results in reversal despite the presence of “legally sufficient evidence.” Two occupants of the car which was involved in the shooting had clothes similar to the clothes worn by the shooter as seen in a poor quality video. Although the driver was the shooter, there was no evidence anyone got out of the driver’s side of the car after it was stopped. The People therefore did not prove the identity of the shooter beyond a reasonable doubt. The conviction was supported by “legally sufficient evidence.” But the conviction was reversed as “against the weight of the evidence.”
COUNTY COURT DID NOT CORRECTLY APPLY THE CRITERIA OF THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) WHEN CONSIDERING DEFENDANT’S MOTION FOR RESENTENCING; THE THIRD DEPARTMENT DETERMINED DEFENDANT WAS ENTITLED TO A MORE LENIENT SENTENCE UNDER THE ACT AND RESENTENCED HER TO TIME SERVED (THIRD DEPT).
The Third Department, reversing County Court and resentencing defendant to time served, determined County Court did not comply with the criteria of the Domestic Violence Survivors Justice Act (DVSJA) when considering defendant’s motion for resentencing under the act. Defendant had been convicted of killing her paramour and was sentenced to ten years in prison:
The DVSJA, in recognition of the profound and pervasive trauma suffered by victims of substantial abuse, permits courts to impose more lenient sentences in certain cases where a victim of domestic violence commits crimes against his or her abuser or as a result of that abuse … . * * *
… [T]he court misapplied the language of Penal Law § 60.12 (1) (a) by requiring that the abuse occur “at the time of the instant offense.” Indeed, such temporal argument would inherently invoke the defenses of duress or justification, however, the legislative history makes it clear that the DVSJA was enacted to address shortfalls in each of those defenses, “as victims of abuse may not be psychologically or socially capable of invoking such defenses at the time of their trials, due to their victimization and its impact on them” … . * * *
… County Court found that the abuse suffered by defendant “was a factor” in her commission of the crime, but failed to conclude as to whether it was a “significant contributing factor” as is required under the statute. Moreover, the court did not articulate a factual basis for its finding in this regard. * * *
… [T]he DVSJA, Penal Law § 60.12 (1) (c) expressly provides that a determination as to whether a standard sentence would be “unduly harsh” is to be made in consideration of the “the nature and circumstances of the crime and the history, character and condition of the defendant.” Although the court’s written decision notes defendant’s age, lack of criminal history and the fact that she is the mother of two children, no discussion is devoted to these circumstances or what weight they should be afforded in considering her resentencing application. People v Liz L., 2023 NY Slip Op 06008, Third Dept 11-22-23
Practice Point: The criteria for resentencing under the Domestic Violence Survivors Justice Act (DVSJA) discussed in some detail.
THE JUDGE SHOULD NOT HAVE DELEGATED THE COURT’S AUTHORITY TO SCHEDULE VISITATION (THIRD DEPT).
The Third Department, reversing (modifying) Family Court, determined the judge should not have delegated the court’s authority to schedule visitation:
… Family Court improperly granted the grandfather and the father of the older child sole authority to determine the dates for at least four consecutive days of visitation in the months of July and August. Allowing the grandfather and the father of the older child to determine periods of summer visitation for the children without the agreement of the mother, the custodial parent, constitutes “an improper delegation of authority” … . In view of the sparse state of the record, as well as the passage of time since the entry of the orders on appeal, we remit solely for the purpose of Family Court setting a schedule for the summer visitation. Matter of Daniel RR. v Heather RR., 2023 NY Slip Op 06011, Third Dept 11-22-23
Practice Point: Here the court should not have delegated the authority to schedule visitation to grandfather and father without the agreement of mother, the custodial parent.
THE CLAIM OF SEXUAL ABUSE UNDER THE CHILD VICTIMS ACT MET THE PLEADING CRITERIA OF THE COURT OF CLAIMS ACT; THE FOUR-YEAR TIME FRAME WAS SUFFICIENTLY PRECISE; THE FACTS ALLEGED SUFFICIENTLY STATED THE NATURE OF THE DEFENDANT’S NEGLIGENCE (THIRD DEPT).
The Third Department, reversing the Court of Claims, in a full-fledged opinion by Justice Mackey, determined claimant sufficiently stated a sexual-abuse claim under the Child Victims Act:
The reality is that “in matters of sexual abuse involving minors, as recounted by survivors years after the fact, dates and times are sometimes approximate and incapable of calendrical exactitude” … .Where sexual abuse is alleged to have occurred several decades ago “when the claimant was a child, it is not reasonable to expect the claimant to be able to provide exact dates when each instance of abuse occurred, nor is it required” … . Under the particular circumstances of the case before us, where the events are alleged to have occurred several decades ago, when claimant was a child, we conclude that the four-year time frame pleaded is sufficient … . Accordingly, the Court of Claims should not have granted defendant’s motion to dismiss on the ground that the claim failed to adequately state the time when the claim arose.
Also, contrary to defendant’s contention, claimant sufficiently states the nature of his claim. He alleges that between 1986 and 1990, when he was a minor, he was raped and sexually abused by numerous men in multiple incidents while he was lawfully at the premises; that the abuse was perpetrated “by both employees of [defendant] as well as members of the general public”; that the “majority of these incidents occurred at the premises, more specifically in the bathrooms, stairwells, tunnels, boiler room, and Kitty Carlisle Hart Theater”; that many of the perpetrators “were agents, servants and/or employees of [defendant]”; and that “[t]hese men were known among the community and the children as a sexual predator [sic] yet allowed unfettered access to children.” Claimant also alleges that abusers used their positions of power and authority provided by defendant “to be able to sexually abuse [him] and other boys” and that their abuse “was open and obvious.” Claimant further asserts that defendant negligently retained an abuser “in his position as teacher, coach, and counselor,” despite notice of his propensities, thereby allowing his abuse of claimant and other boys to continue. We conclude that these allegations are sufficient to provide defendant with “an indication of the manner in which . . . claimant was injured and how [defendant] was negligent” … , and thus “defendant cannot reasonably assert that it is unaware of the nature of the claim” … . Because the claim is sufficiently detailed to allow defendant “to investigate the claim and to reasonably infer the basis for its alleged liability” … , it satisfies the nature of the claim requirement of Court of Claims Act § 11 (b). Wright v State of New York, 2023 NY Slip Op 06013, Third Dept 11-22-23
Practice Point: The allegations of sexual abuse within a four-year time frame met the pleading criteria of Court of Claims Act section 11 (b) in that the allegations were sufficiently detailed to determine the nature of the claim and to allow investigation of the claim.
PLAINTIFF DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, determined plaintiff in this foreclosure action did not demonstrate she had standing to bring it:
“A plaintiff has standing to maintain a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced” … . The plaintiff can establish standing by attaching a properly endorsed note to the complaint when commencing the action . However, where an endorsement is on an allonge and not on the note itself, the plaintiff must establish that the allonge was “so firmly affixed to the note so as to become a part thereof” as required by UCC 3-202(2) at the time the action was commenced … . “Where there is no allonge or note that is either endorsed in blank or specially endorsed to the plaintiff, mere physical possession of a note at the commencement of a foreclosure action is insufficient to confer standing or to make a plaintiff the lawful holder of a negotiable instrument for the purposes of enforcing the note” … .
Here, the plaintiff failed to establish her status as holder of the note at the time the action was commenced. Although the note was executed in favor of the decedent, the copy of the note attached to the complaint contains two purported endorsements in favor of nonparties, and the plaintiff failed to show that an allonge containing an additional endorsement back to the decedent was firmly affixed to the note … . Thompson v Seay, 2023 NY Slip Op 06072, Second Dept 11-22-23
Practice Point: Where the note and the endorsements do not comply with the requirements of UCC 3-202, plaintiff has not demonstrated standing to bring the foreclosure action.
A DRIVER WHO HAS THE RIGHT-OF-WAY IS ENTITLED TO ANTICIPATE OTHER DRIVERS WILL OBEY THE TRAFFIC LAWS REQUIRING THEM TO YIELD; HERE DEFENDANT ENTERED AN INTERSECTION WITH A GREEN LIGHT AND PLAINTIFF MADE A LEFT TURN IN FRONT OF HIM; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined that the defendant driver demonstrated he had the right-of-way when he entered the intersection with and green light and plaint made a left turn in front of him. Defendant’s motion for summary judgment should have been granted:
“A driver who has the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield to the driver with the right-of-way” … . “Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, . . . a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” … .
Here, the defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that he had the right-of-way, the plaintiff failed to yield the right-of-way, and the defendant did not have sufficient time to react in order to avoid the collision … . The defendant, as the driver with the right-of-way, was entitled to anticipate that the plaintiff would obey the traffic laws which required her to yield … . Smith v Trail, 2023 NY Slip Op 06070, Second Dept 11-22-23
Practice Point: A driver who fails to take evasive action can be contributorily negligent. But here defendant entered the intersection with a green light and plaintiff made a left turn in front of him. Plaintiff did not raise a question of fact whether defendant had time to take evasive action.
THE UNION’S CHALLENGE TO THE DEDUCTION OF THE COST OF HEALTH INSURANCE FROM A VILLAGE POLICE OFFICER’S PAYCHECK WAS A BREACH-OF-CONTRACT ACTION FOR WHICH THE STATUTE OF LIMITATIONS BEGAN RUNNING ANEW FOR EACH PAYCHECK (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Brathwaite Nelson, determined the action by the union on behalf of a village police officer challenging the deduction of health insurance costs from each paycheck was a breach-of-contract action and the statute of limitations began running anew for each paycheck:
Teamsters Local 445 (hereinafter the Union) filed a demand for arbitration of a grievance against the Village of Maybrook alleging that the Village breached the parties’ collective bargaining agreement (hereinafter CBA) by deducting a certain amount from each paycheck of Sergeant Michael Maresca for health insurance costs. The Supreme Court granted the Village’s petition to permanently stay arbitration on the ground that the claim sought to be arbitrated was barred by the four-month statute of limitations applicable to CPLR article 78 proceedings. The principal issues raised on this appeal are (1) whether the underlying claim is in the nature of CPLR article 78 seeking review of an administrative determination or in the nature of breach of contract, and (2) if the latter, whether the claim is predicated on a single breach or a series of breaches that occurred with each paycheck. … [W]e determine that the nature of the claim is breach of contract and that the claim is predicated on a series of independent alleged breaches. Since the statute of limitations began anew as to each breach, we find that the claim to be arbitrated was not wholly time-barred. We therefore modify the order appealed from by … granting the Union’s cross-motion to the extent of compelling arbitration of so much of the grievance as was not time-barred. Matter of Village of Maybrook v Teamsters Local 445, 2023 NY Slip Op 06051, Second Dept 11-22-23
Practice Point: Here the union’s challenge to the deduction of the cost of health insurance from a village police officer’s paycheck was governed by the six-year statute of limitations for a breach of contract action, not the four-month statute of limitations for an Article 78 proceeding. The statute began running anew for each paycheck.
UNSUBSTANTIATED COMPLAINTS AGAINST POLICE OFFICERS ARE NOT CATEGORICALLY EXEMPT FROM FOIL REQUESTS (SECOND DEPT).
The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Brathwaite Nelson, determined “unsubstantiated complaints” against police officers are not categorically exempt from a FOIL request:
The petitioner publishes a daily newspaper in Long Island. Following the Legislature’s repeal of Civil Rights Law § 50-a, the petitioner made requests to the Nassau County Police Department (hereinafter the NCPD) pursuant to the Freedom of Information Law … to obtain certain law enforcement disciplinary records. … [T]he NCPD … withheld all documents relating to complaints that were not determined to be substantiated on the ground that such documents were categorically exempt from disclosure as an “unwarranted invasion of personal privacy” pursuant to Public Officers Law § 87(2)(b). We hold that records concerning unsubstantiated complaints or allegations of misconduct are not categorically exempt from disclosure as an unwarranted invasion of personal privacy, and the NCPD is required to disclose the requested records, subject to redactions with particularized and specific justification under Public Officers Law § 87(2) … . …
Former Civil Rights Law § 50-a provided a blanket shield from public disclosure for police officer personnel records, including records relating to disciplinary proceedings arising out of allegations of misconduct … . Effective June 12, 2020, the Legislature repealed Civil Rights Law § 50-a and amended the Public Officers Law to make specific provisions relating to the disclosure of law enforcement disciplinary records and the types of redactions to be made thereto prior to disclosure. Matter of Newsday, LLC v Nassau County Police Dept., 2023 NY Slip Op 06050, Second Dept 11-22-23
Practice Point: Pursuant to the repeal in 2020 of Civil Rights Law 50-a, unsubstantiated complaints against police officers are not categorically exempt from FOIL requests.
THE PETITIONER MAKING THE FOIL REQUEST IS A LAW FIRM; THE FACT THAT THE FIRM’S CLIENT ALSO HAD STANDING TO MAKE THE FOIL REQUEST DID NOT DEPRIVE THE LAW FIRM OF STANDING (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the Article 78 proceeding contesting the denial of petitioner’s FOIL request should not have been dismissed for lack of standing. Petitioner is a law firm seeking information on behalf of a client. The fact that the client could also make the FOIL request did not deprive the law firm of standing:
Supreme Court erred in concluding that the petitioner lacked standing to pursue this proceeding. The petitioner submitted the FOIL request to the Agency and its request was denied, both initially and on administrative appeal. Since the petitioner’s FOIL request was denied, it had standing to seek judicial review of the Agency’s determination … , regardless of whether it submitted the FOIL request, in whole or in part, on behalf of a client … . The petitioner’s standing was not extinguished by the fact that its client also would have had standing to commence a proceeding challenging the denial of the FOIL request … . Matter of Law Offs. of Cory H. Morris v Suffolk County, 2023 NY Slip Op 06046, Second Dept 11-22-23
Practice Point: Here a law firm made FOIL requests that were denied. The law firm then brought an Article 78 proceeding which was erroneously dismissed for lack of standing. The fact that the firm’s client had standing to bring the FOIL proceedings did not deprive the law firm of standing.
FATHER IGNORED COMPULSORY DISCOVERY OF HIS FINANCIAL ABILITY TO PAY SUPPORT; FATHER IS PRECLUDED FROM OFFERING SUCH EVIDENCE IN THE SUPPORT PROCEEDINGS (SECOND DEPT).
The Second Department, reversing Family Court, determined father should be precluded from presenting any evidence of his financial ability to pay support because he submitted no financial evidence in the discovery phase:
Family Court Act § 424-a “mandates the compulsory disclosure by both parties to a support proceeding of ‘their respective financial states,’ through the provision of tax returns, pay stubs, and sworn statements of net worth” … . “Where a respondent in a child support proceeding fails, without good cause, to comply with the compulsory financial disclosure mandated by Family Court Act § 424-a, ‘the court on its own motion or on application shall grant the relief demanded in the petition or shall order that, for purposes of the support proceeding, the respondent shall be precluded from offering evidence as to [the] respondent’s financial ability to pay support'” … .
Here, the father failed to provide a sworn statement of net worth, a tax return, or a pay stub, and he did not offer an explanation for his failure to do so. Since the father failed, without good cause, to comply with the compulsory financial disclosure mandated by Family Court Act [*2]§ 424-a, the Family Court was required to either grant the relief demanded in the petition or preclude the father from offering evidence as to his financial ability to pay support … . Under the circumstances of this case, the court should have precluded the father from offering evidence regarding his financial ability to pay support, and should have determined the amount of child support based on the needs of the child, as requested by the mother … . Matter of Grant v Seraphin, 2023 NY Slip Op 06044, Second Dept 11-22-23
Practice Point: In support proceedings, discovery of a party’s financial ability to pay support is compulsory. A party who fails to provide such discovery may be precluded from presenting any financial evidence.
THERE WAS A SURPLUS AFTER THE FORECLOSURE SALE OF DEFENDANT’S PROPERTY; DEFENDANT HAD ENTERED A HOME EQUITY LINE OF CREDIT WITH CITIBANK; CITIBANK, NOT DEFENDANT, WAS ENTITLED TO THE SURPLUS FUNDS (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the defendant, owner of the equity of redemption after a foreclosure sale of defendant’s property, was not entitled to the surplus funds after the sale. Defendant had entered a home equity line of credit with Citibank. Citibank was entitled to the surplus funds:
“‘[S]urplus money proceedings . . . are not collateral to the foreclosure, but are in the action itself[,] [a]nd the rights of lienors subsequent to the mortgage under foreclosure are before the court and must be protected as much as those of the owner of the property'” … . “‘Surplus money from a foreclosure sale is not a general asset of the owner of the equity of redemption, but stands in the place of the property for the purpose of distribution among those having vested interests in or liens on the property. The rights of the parties are fixed at the time of the foreclosure sale, and the rights of a second lienholder are transferred to any surplus'” … . “Under New York law, the lien of a junior mortgagee who is made a party to a foreclosure action brought by a senior mortgagee, although cut-off and extinguished as to the land, continues as a lien upon the surplus funds arising from the foreclosure” … . “‘[U]pon the foreclosure of the first mortgage, the lien of the second mortgage follow[s] the surplus into the hands of the [municipality’s] financial officer, and the remedy of the second mortgagee is to enforce his or her claim in the court by whose direction the foreclosure had taken place'” … . Maspeth Fed. Sav. & Loan Assn. v O’Connell, 2023 NY Slip Op 06037, Second Dept 11-22-23
Practice Point: In addition to the mortgage which was foreclosed, defendant property-owner had entered a home equity line of credit with Citibank. There were surplus funds after the foreclosure sale. Citibank, not defendant, was entitled to the surplus funds.
PLAINTIFF DID NOT DEMONSTRATE THE RELEASE WAS PROCURED BY FRAUD, CRITERIA EXPLAINED (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, determined plaintiff did not demonstrate the release plaintiff agreed to was procured by fraud. Therefore the motion to dismiss the causes of action covered by the release should have been granted:
“Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release” … . “If the language of a release is clear and unambiguous, the signing of a release is a jural act binding on the parties” … . “Notably, a release may encompass unknown claims, including unknown fraud claims, if the parties so intend and the agreement is fairly and knowingly made” … .
“A release should never be converted into a starting point for . . . litigation except under circumstances and under rules which would render any other result a grave injustice” … . “A release may be invalidated, however, for any of the traditional bases for setting aside written agreements, namely, duress, illegality, fraud, or mutual mistake” … . “Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release shifts the burden of going forward . . . to the [plaintiff] to show that there has been fraud, duress or some other fact which will be sufficient to void the release” … “A plaintiff seeking to invalidate a release due to fraudulent inducement must establish the basic elements of fraud, namely a representation of material fact, the falsity of that representation, knowledge by the party who made the representation that it was false when made, justifiable reliance by the plaintiff, and resulting injury” … . “[A] party that releases a fraud claim may later challenge that release as fraudulently induced only if it can identify a separate fraud from the subject of the release” … . JM UC Group, LLC v Precious Care Mgt., LLC, 2023 NY Slip Op 06034, Second Dept 11-22-23
Practice Point: The decision includes the text of a detailed release which is worth reading. A release can even cover unknown claims, even unknown fraud claims. Here plaintiff did not demonstrate the release was procured by fraud and the relevant causes of action should have been dismissed.
THE 90-DAY TIME-LIMIT IN RPAPL 1371 FOR BRINGING A MOTION FOR A DEFICIENCY JUDGMENT AGAINST THE PURCHASER OF PROPERTY AT A FORECLOSURE SALE FUNCTIONS AS A STATUTE OF LIMITATIONS; THE MOTION HERE WAS UNTIMELY (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the mortgagor’s order to show cause seeking a deficiency judgment against defendant, the purchaser of the property at the foreclosure sale, should have been dismissed as untimely pursuant to RPAPL 1371:
RPAPL 1371(2) states that “[s]imultaneously with the making of a motion for an order confirming the sale, provided such motion is made within ninety days after the date of the consummation of the sale by the delivery of the proper deed of conveyance to the purchaser, the party to whom such residue shall be owing may make a motion in the action for leave to enter a deficiency judgment upon notice to the party against whom such judgment is sought or the attorney who shall have appeared for such party in such action.” “The courts have uniformly treated the 90-day period contained in RPAPL 1371(2) as a provision in the nature of a statute of limitations, so that the plaintiff’s failure to serve notice within the 90-day period is a complete bar to the entry of a deficiency judgment, and the proceeds of the sale will be deemed to be in full satisfaction of the mortgage debt” … . JDRMDBP-SM, LLC v Hossain, 2023 NY Slip Op 06033, Second Dept 11-22-23
Practice Point: The 90-day time-limit in RPAPL 1371 for bringing a motion for a deficiency judgment against the purchaser of property at a foreclosure sale functions as a statute of limitations. A late motion must be dismissed.
TWO PRIOR POSSESSION OF A WEAPON INCIDENTS IN 2006 AND 2007, WHERE DEFENDANT CLAIMED THE WEAPONS BELONGED TO ANOTHER AND HE WAS UNAWARE OF THEIR PRESENCE, SHOULD NOT HAVE BEEN ADMITTED UNDER MOLINEUX IN THIS 2017 POSSESSION OF A WEAPON PROSECUTION, WHERE DEFENDANT CLAIMED THEY WERE PLACED IN THE VEHICLE BY ANOTHER WITHOUT HIS KNOWLEDGE; THERE WAS A CONCURRENCE AND A THREE-JUDGE DISSENT (CT APP).
The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Halligan, over a concurrence and a three-judge dissent, determined evidence of two prior possession-of-a-weapon incidents in 2006 and 2007, one uncharged and one misdemeanor, should not have been admitted under Molineux in the instant 2017 weapons-possession prosecution. In the 2006 and 2007 cases, defendant claimed the weapons belonged to another and he wasn’t aware of their presence. In the 2017 case defendant claimed someone else put the weapons in his vehicle without his knowledge. The weapons were legally purchased and registered to the defendant in Florida:
During an inventory search, the police recovered various items, including two small bags of marijuana and cash. They also found a loaded .45 caliber gun in the truck’s center console, as well as three handguns and ammunition in the flatbed area; each firearm was legally purchased and registered in Telfair’s name in Florida. The defendant was charged with several crimes related to possession of weapons and ammunition, as well as various vehicle and traffic violations.
The People moved under People v Molineux, 168 NY 264 (1901) to introduce evidence of two prior incidents involving Telfair’s possession of a weapon: a 2006 uncharged crime and a 2007 misdemeanor conviction for weapon possession. The People expected that Telfair would claim at trial that someone else had packed his truck and unbeknownst to him, placed his guns inside it, and the prior acts would show the defendant actually knew he possessed the firearms on the day of his arrest. Defense counsel responded that given the temporal remoteness and dissimilarity of the prior incidents, they had “little, if any, probative value” and were highly prejudicial, in part because the 2007 conviction concerned the same charge for which Telfair was now on trial. When asked whether he would assert that Telfair did not know the guns were in his car, defense counsel did not disclaim the defense. * * *
The 2006 and 2007 incidents were neither very similar nor close in time to the 2017 incident. Just the opposite: they involved different guns, different sets of circumstances, different excuses, and occurred more than 10 years earlier. People v Telfair, 2023 NY Slip Op 05965, CtApp 11-21-23
Practice Point: This case must be read carefully and repeatedly, as it illustrates subtle but profoundly important restrictions on the admissibility of Molineux evidence.
DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO REQUEST A JURY CHARGE ON THE ONLY DEFENSE AVAILABLE TO THE DEFENDANT; THREE JUDGE DISSENT FOCUSED ON THE WEAKNESS OF THE DEFENSE (CT APP).
The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Wilson, over a three-judge dissent, determined defendant did not receive effective assistance of counsel. Defendant was charged with criminal possession of a weapon. The weapon was discovered by a police officer under a floor mat in defendant’s car after a traffic stop. At trial defendant claimed he was stopped on his way to surrender the weapon to a gun buyback program. The majority concluded defense counsel was ineffective for failure to request the “voluntary surrender” jury charge. Defense counsel requested the “temporary and lawful possession” jury charge, which was directly contradicted by the trial evidence:
Here, counsel knew that his client’s explanation was that he was traveling to turn the gun in to the NYC gun buyback program. Indeed, in his opening statement, counsel admitted to the elements of the crime of criminal possession of a weapon and offered a defense, explaining that Mr. Debellis [defendant] , in desperate need of money, was transporting the gun to a police buyback program in the Bronx.
However, after announcing that line of defense and supporting it through Mr. Debellis’s trial testimony, counsel failed to request the only jury instruction that would give it any legal weight—a defense of voluntary surrender under PL 265.20 (a) (1) (f). Counsel premised his case instead on the common-law defense of temporary and lawful possession, which was completely inapplicable given the length of time Mr. Debellis had possessed the weapon in contravention of a preexisting court order that he had to divest himself of all firearms. Even after the court explicitly told counsel that that it would not instruct the jury on temporary and lawful possession because it did not fit the evidence, counsel failed to request an instruction on the statutory defense that fit his client’s testimony and counsel’s own argument to the jury
From the dissent:
Today the majority holds that defense counsel was ineffective for not requesting a jury charge that would have allowed the jury to find that defendant’s possession of the unlicensed gun was lawful because, at trial, defendant claimed for the first time that he was on his way to a police agency to surrender the gun. Because no reasonable view of the undisputed facts supports such a charge, defendant was not entitled to it. Nor was counsel’s overall performance deficient. Nevertheless, defendant, who denied having a weapon when asked by the police and who was allowed access to the area where he had hidden a loaded gun based on that false statement, thereby endangering the life of the officer who stopped him and numerous nearby civilians, now has his unlawful possession of a weapon conviction reversed by this Court. People v Debellis 2023 NY Slip Op 05964, CtApp 11-21-23
Practice Point: Here defense counsel did not request a jury charge for the only viable defense offered by the defendant in his trial testimony (i.e., he was on his way to surrender the weapon to the gun buyback program when the police found it under the floor mat of his car). The majority held defense counsel was ineffective. The dissent focused on the weakness of the defense. Bottom line, if the defendant has only one defense, even if it is not credible, defense counsel is obligated to present it to the jury.
WHERE, AS HERE, THE SORA COURT EXPRESSLY FINDS THERE WAS NO SEXUAL CONDUCT OR MOTIVE UNDERLYING THE UNLAWFUL IMPRISONMENT OF A CHILD, THE REQUIREMENT THAT DEFENDANT BE DESIGNATED A SEX OFFENDER VIOLATES DEFENDANT’S DUE PROCESS RIGHTS (CT APP).
The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, over a three-judge dissent, determined requiring defendant to register as a sex offender based upon an nonsexual unlawful imprisonment of a child violated defendant’s right to due process of law:
Defendant stole money at gunpoint from his aunt in the presence of his 10-year-old cousin for which he pleaded guilty to, inter alia, the unlawful imprisonment of the child. For this crime, New York requires that he register as a sex offender and comply with the Sex Offender Registration Act (SORA). It is undisputed that the crime was non-sexual and that the SORA court found that defendant is not a sex offender and poses no sexual threat. Nevertheless, the courts below felt constrained by People v Knox (12 NY3d 60 [2009]) to impose SORA requirements. Defendant contends that the holdings in Knox and its companion cases are distinguishable and do not control his as-applied challenge. We agree and conclude that requiring defendant to register violates his due process rights and does nothing to further the legislative purpose of SORA to protect the public from actual sex offenders. * * *
… [T]he core holding and reasoning in Knox does not control here where defendant’s criminal behavior and his lack of future risk of sexual harm to children distinguish him from the Knox defendants. The Knox Court’s conclusion that designating those three defendants as sex offenders and mandating their SORA registration was rationally related to the government’s interest in protecting children from sexual assault lacks force here, where defendant’s offense belies any such threat. Where a SORA court expressly finds that there was no sexual conduct or motive and no risk of future sexual offense, application of the sex offender label cannot be justified on the ground that a defendant may pose a risk of future sexual misconduct, and there is no further administrative burden in reaching that conclusion. Applying SORA to defendant violates his due process rights by impinging on his liberty interest to be free of the improper designation and registration as a “sex offender.” People v Brown, 2023 NY Slip Op 05973, CtApp 11-21-23
Practice Point: Here the SORA court found there was no sexual conduct or motive underlying the unlawful imprisonment of the child. Under that circumstance, to designate the defendant a sex offender violates his right to due process of law.
THE ORDER TO SHOW CAUSE REQUIRED SERVICE BY OVERNIGHT EXPRESS; THE ORDER TO SHOW CAUSE WAS SERVED BY PRIORITY MAIL; THE FAILURE TO COMPLY WITH THE SPECIFIED MANNER OF SERVICE DEPRIVED THE COURT OF JURISDICTION TO HEAR THE MOTION.
The First Department, reversing Supreme Court, determined plaintiff did not serve the order to show cause in the manner specified in the order. Therefore the court did not have jurisdiction to hear the motion and the order was vacated:
Despite the express provision requiring overnight express service, in the March 16, 2020, order to show cause, plaintiff served the order to show cause and related papers by Priority Mail, which only guarantees delivery in one to three days. Failure to comply strictly with the service provision of the order to show cause deprived the court of jurisdiction to hear the motion … . Therefore, the resulting July 15, 2020 order should be vacated. Colonial Funding Network, Inc. v Finley, 2023 NY Slip Op 05980, First Dept 11-21-23
Practice Point: If the order to show cause specifies the manner of service and service is not made in that manner, the court is deprived of jurisdiction to hear the motion.
THE SENTENCE FOR MANSLAUGHTER SHOULD NOT HAVE BEEN BASED UPON THE INTENT TO KILL WHICH IS NOT AN ELEMENT OF THE CRIME; THE SENTENCES FOR MANSLAUGHTER AND POSSESSION OF A WEAPON SHOULD NOT HAVE BEEN IMPOSED CONSECUTIVELY; REMANDED FOR RESENTENCING (FIRST DEPT).
The First Department, remanding the matter for resentencing, determined the judge improperly based the sentence for manslaughter on the belief defendant intended to kill the victim. Intent to kill is not an element of manslaughter. It is an element of murder second degree. Defendant was acquitted of murder second degree. In addition, the judge should not have imposed consecutive sentences for manslaughter and possession of a weapon:
… [T]he court improperly based the sentence on the manslaughter conviction on its stated belief that defendant intended to kill the victim. Intent to kill is an element of murder in the second degree, of which defendant was acquitted, and not manslaughter in the first degree, of which defendant was convicted … . Because the sentence was based on conduct of which defendant had been acquitted, resentencing on the manslaughter conviction is required … . Although defendant’s challenge to this sentence is unpreserved, we reach it in the exercise of our interest of justice power … .
… [t]he imposition of consecutive sentences on the conviction for manslaughter and the conviction for simple possession of a weapon under Penal Law § 265.03(3) was improper. The sentences should have run concurrently, since the People did not demonstrate that the act of weapon possession was separate from the act of manslaughter … . There was no evidence presented at the trial establishing that defendant possessed the firearm before shooting the victim … . People v Anonymous, 2023 NY Slip Op 05990, First Dept 11-21-23
Practice Point: The defendant was acquitted of second degree murder and convicted of manslaughter. The judge erroneously sentence defendant based on the belief defendant intended to kill the victim. But intent to kill is not an element of manslaughter. Resentencing was required.
Practice Point: There was no evidence the possession of a weapon by defendant was separate from the conduct underlying the manslaughter conviction. Therefore the sentences should not have been imposed consecutively.
THE COMPLAINT ALLEGED DECEDENT, WHO WAS SUFFERING SHORTNESS OF BREATH, SHOULD HAVE BEEN PROVIDED AN ADVANCE LIFE SUPPORT AMBULANCE; THE COMPLAINT SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS TIME-BARRED (FIRST DEPT).
The First Department, reversing Supreme Court, determined that the complaint alleging decedent, who was suffering shortness of breath, should have been provided an advance life support (ALS) ambulance sounded in medical malpractice, not negligence. Therefore the 2 1/2 year statute of limitations applied and the action was time-barred:
… [T]he allegations in the complaint sound in medical malpractice rather than ordinary negligence. Plaintiffs seek to hold defendant liable for its failure to provide decedent with an advance life support (ALS) ambulance after being advised that decedent was suffering from shortness of breath. The type of ambulance provided by defendant “bears a substantial relationship to the rendition of medical treatment,” and thus plaintiffs’ claims must be viewed within a medical malpractice framework … . The dispatcher would need to understand the significance of “shortness of breath,” have specialized knowledge of the equipment or devices that could treat or care for the possible conditions arising from this symptom and be familiar with accepted practice in providing an ALS ambulance … . Trofimova v Seniorcare Emergency Med. Servs., Inc., 2023 NY Slip Op 05997, First Dept 11-21-23
Practice Point: Where the complaint alleges the need for and failure to provide an ambulance with advance life support, it sounds in medical malpractice, not negligence.
THE TRAFFIC STOP OF A BICYCLIST IS A SEIZURE REQUIRING REASONABLE SUSPICION OF CRIMINAL ACTIVITY OR PROBABLE CAUSE DEFENDANT HAS VIOLATED THE RULES OF THE ROAD (VEHICLE AND TRAFFIC LAW, NYC ADMINISTRATIVE CODE, ETC.); HERE THE STATEMENTS MADE BY THE DEFENDANT AND THE GUN SEIZED FROM HIM AFTER THE STOP SHOULD HAVE BEEN SUPPRESSED (CT APP).
The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, over a three-judge dissent, determined a traffic-stop of a bicyclist is a seizure and requires reasonable suspicion of criminal activity or probable cause defendant violated the rules of the road (Vehicle and Traffic Law, NYC Administrative Law, etc.). Here the defendant was riding in the middle of the road such that cars avoided him, was holding something in his waistband, and had only one had on the handlebars. He was not charged with any violations of the rules of the road. When stopped the defendant admitted he had a gun which was seized. Defendant’s statements and the gun should have been suppressed:
“Like all seizures, the officer’s action[s]” during a traffic stop “must be justified at its inception” … . Here, the officers’ actions were unjustified from the beginning because, as the prosecution concedes, the police possessed neither probable cause of a VTL violation nor reasonable suspicion of criminality … . Although the officer vaguely commented during the suppression hearing that defendant was riding “in a somewhat reckless manner,” he did not testify that he suspected a VTL violation—let alone that he had probable cause of one Instead, the officer testified that the primary motivation for the stop was that defendant was “holding an object in his waistband,” but admitted that he did not know what the “object” was, except that it was “bulky.” This observation of course fell well short of establishing reasonable suspicion of criminality … . Indeed, at no point before the stop did the officers suspect defendant was carrying contraband and, in fact, they were “caught . . . off guard” after the stop, when defendant admitted that he was carrying a gun. * * *
From the dissent:
A police officer observed defendant Lance Rodriguez riding a bicycle while clutching a bulky object at his waistband. The officer asked defendant to stop and, upon doing so, defendant admitted that he was carrying a gun. Today, the majority abandons this Court’s long-settled precedent, overturns a gun conviction stemming from reasonable police action, and creates a new rule that transforms any stop of a bicycle from a facts and circumstances inquiry into a per se seizure. People v Rodriguez, 2023 NY Slip Op 05972, CtApp 11-21-23
Practice Point: The traffic stop of a bicyclist is a “seizure” requiring reasonable suspicion of criminal activity or probable cause to believe the bicyclist has violated the rules of the road.
THE MAJORITY REJECTED THE ARGUMENT DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE A CONFRONTATION-CLAUSE CHALLENGE TO DNA EVIDENCE OFFERED BY A WITNESS WHO WAS NOT INVOLVED IN THE ANALYSIS OF THE DNA; STRONG, COMPREHENSIVE DISSENT (CT APP).
The Court of Appeals, over an extensive dissenting opinion, rejected defendant’s ineffective-assistance claim based upon defense counsel’s failure to raise a Confrontation Clause challenge to the admission of DNA evidence:
Defendant asserts that trial counsel rendered ineffective assistance by failing to argue that the admission into evidence of DNA reports through the testimony of an analyst who did not perform, witness or supervise the testing, or independently analyze the raw data, violated his constitutional right to confrontation. This argument is without merit. “Even assuming that counsel failed to assert a meritorious Confrontation Clause challenge, the alleged omission does not ‘involve an issue that [was] so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it'” … . Nor, on this record, has defendant demonstrated that the alleged error was not a matter of legitimate trial strategy … .
From the dissent:
At trial, the prosecution admitted two reports containing DNA analyses through a criminalist who testified, based on his review of the file prepared by another criminalist, that defendant’s DNA matched DNA on a screwdriver recovered from the scene of the break-in. This evidence was therefore admitted through a surrogate witness in violation of the Confrontation Clause … . The question on this appeal is whether defense counsel was ineffective for failing to raise a Confrontation Clause objection to this evidence’s admission. At the time of defendant’s trial, the law was sufficiently settled to support such an objection. Indeed, counsel recognized that the basis for the testifying criminalist’s conclusions was vulnerable to attack, as he asked the jury to reject those conclusions on the ground that the criminalist did not conduct the DNA testing. Given that the prosecution’s entire case rested upon this DNA evidence, counsel’s failure to challenge this evidence on Confrontation Clause grounds cannot be explained as a reasonable strategy. People v Espinosa, 2023 NY Slip Op 05971, CtApp 11-21-23
Practice Point: The majority concluded defense counsel’s failure to raise a confrontation-clause challenge to DNA evidence presented by a witness who was not involved in the DNA analysis did not constitute ineffective assistance. There was a strong, comprehensive dissent.
DEFENDANT’S CHALLENGES TO THE INVENTORY SEARCH AND THE ADMISSION OF CERTAIN TESTIMONY HE DEEMED PREJUDICIAL, AND HIS CONSTITUTIONAL CHALLENGE TO NEW YORK’S WEAPONS-POSSESSION REGIME REJECTED (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a dissent, rejected defendant’s challenges to the inventory search and to purported prejudicial testimony allowed by the trial judge. Defendant’s constitutional challenge to New York’s weapons-possession regime rejected as unpreserved:
Defendant Carlos L. David challenges his conviction for two counts of criminal possession of a weapon in the second degree (see Penal Law § 265.03 [3]) on several grounds. He argues that the police recovered the handguns that gave rise to his conviction during an invalid inventory search, and that Supreme Court improperly allowed prejudicial testimony at his trial. Neither argument provides grounds for reversal. David additionally argues that Penal Law § 265.03 (3) is facially unconstitutional under New York State Rifle & Pistol Assn., Inc. v Bruen, 142 S Ct 2111 (2022). This argument is unpreserved, and for the reasons set forth below, we do not reach it. People v David, 2023 NY Slip Op 05970, CtApp 11-21-23
Practice Point: The constitutional challenges to New York’s weapons-possession regime rejected as unpreserved.
DEFENDANT’S CHALLENGES TO RESTRICTIONS ON VOIR DIRE, HIS ARGUMENT A PRISON SENTENCE DURING COVID VIOLATED THE EIGHTH AMENDMENT, AND HIS CONSTITUTIONAL CHALLENGES TO NEW YORK’S WEAPONS-POSSESSION REGIME, REJECTED; THE DISSENT ARGUED THE PRESUMPTION OF AN INTENT TO USE AN UNLICENSED WEAPON IS UNCONSTITUTIONAL AND VOIR DIRE QUESTIONS RELATED TO GUN CONTROL AND JUSTIFICATION SHOULD HAVE BEEN ALLOWED (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Halligan, over an extensive dissent, rejected defendant’s challenges to his conviction:
Defendant George Garcia argues that his conviction for two counts of criminal possession of a weapon in the second degree … should be reversed because the trial court impermissibly limited questioning during voir dire. He also argues that his sentence—the statutory minimum term of 3½ years in prison—violates the Eighth Amendment given his risk of serious illness or death from COVID-19, and that the Appellate Division had the power to reduce his sentence below the statutory minimum. None of these contentions provides grounds for reversal. Garcia further argues for the first time in this Court that the statutory provisions under which he was convicted are unconstitutional in light of New York State Rifle & Pistol Assn., Inc. v Bruen, 142 S Ct 2111 (2022). These arguments are unpreserved, and for the reasons set forth in People v Cabrera (decided today), we do not reach them. * * *
From the dissent:
The presumption in Penal Law § 265.03 (1) (b) that unlicensed possession is evidence of intent to use the weapon unlawfully is unconstitutional and therefore defendant’s conviction on this count should be reversed and the count dismissed. Additionally, the court abused its discretion and prejudiced defendant by limiting defendant’s voir dire questions related to gun control and justification. Therefore, his conviction on the single other remaining charge should be reversed and a new trial ordered. People v Garcia, 2023 NY Slip Op 05969, CtApp 11-21-23
Practice Point: Constitutional arguments attacking New York’s weapons-possession regime were not preserved.
Practice Point: The Eighth Amendment challenge to a prison sentence during COVID rejected.
Practice Point: Challenges to restrictions on voir dire about gun control and justification rejected.
UNWARNED STATEMENTS MADE WHEN THE POLICE APPROACHED DEFENDANT GETTING OUT OF HIS CAR AND HANDCUFFED HIM SHOULD HAVE BEEN SUPPRESSED; THE SUBSEQUENT CONSENT TO SEARCH, MADE AFTER MIRANDA WARNINGS, WAS NOT TAINTED BY THE UNWARNED CUSTODIAL QUESTIONING; DEFENDANT’S CONSTITUIONAL CHALLENGES TO NEW YORK’S GUN LICENSING REGIME WERE NOT PRESERVED (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a two-judge dissent, reversing (modifying) the Appellate Division, determined defendant was in custody when the police approached him after defendant got out of his car and handcuffed him. Statements made at that time about the presence of weapons in the car should have been suppressed. However defendant’s subsequent consent to search the car, given an hour and a half after the officers initially approached defendant and after the Miranda warnings, was not tainted by the initial custodial questioning. The dissent argued the consent to search was in fact tainted. The court rejected defendant’s constitutional arguments attacking the validity of New York gun-licensing regime as unpreserved:
Preservation of a constitutional challenge, in particular, “ensures that the drastic step of striking duly enacted legislation will be taken not in a vacuum but only after the lower courts have had an opportunity to address the issue and the unconstitutionality of the challenged provision has been established beyond a reasonable doubt” … . For these reasons, we have carefully guarded the preservation rule against “erosion” … . * * *
… [A] reasonable innocent person in Cabrera’s {defendant’s] position could not have felt free to leave when three law enforcement officers approached him at night, on a residential street, and handcuffed him before questioning him about the firearms in his vehicle. The level to which the police restricted Cabrera’s movement was of a degree associated with a formal arrest. Nor does the record suggest that the defendant had any reason to believe that he would be handcuffed only for a limited duration. … [T]here is no record support for the conclusion of the courts below that Cabrera was not in custody for Miranda purposes. On appeal, the People have conceded that the defendant was subject to interrogation and that they did not argue below that the public safety exception applied. Custodial status is therefore dispositive; in the absence of warnings, his statements should have been suppressed. People v Cabrera, 2023 NY Slip Op 05968, CtApp 11-21-23
Practice Point: Statements made after police approached defendant on the street and handcuffed him should have been suppressed, but the unwarned custodial questioning did not taint a subsequent consent to search given after Miranda warnings.
Practice Point: Constitutional arguments, here attacking New York’s gun-licensing regime, must be preserved before the Court of Appeals can address them.
THE SENTENCING COURT’S REJECTION OF YOUTHFUL-OFFENDER STATUS FOR THE DEFENDANT UPHELD (CT APP).
The Court of Appeals, affirming the Appellate Division, determined the sentencing court properly rejected youthful-offender status for the defendant. People v Rivera, 2023 NY Slip Op 05967, CtApp 11-21-23
THE ROADBLOCK VEHICLE-STOP WAS VALID; THE SEARCH BASED UPON AN ODOR OF MARIJUANA WOULD NOT HAVE BEEN VALID UNDER THE MARIHUANA REGULATION AND TAXATION ACT (MRTA) BUT THE COURT REFUSED TO APPLY THE MRTA RETROACTIVELY; ONE DISSENT ARGUED DEFENDANT’S CHALLENGE TO PROHIBITING FELONS FROM OBTAINING GUN LICENSES HAD MERIT; THE OTHER DISSENT ARGUED THE ROADBLOCK PROCEDURE WAS NOT DEMONSTRATED TO BE CONSTITUTIONAL (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a single-judge dissent and a separate two-judge dissent, affirmed defendant’s conviction, finding the roadblock vehicle-stop procedure was valid and the search based upon an odor of marijuana was valid. The search would not have been valid after the Mariihuana Regulation and Taxation Act (MRTA) was enacted in 2021. The court refused to apply the MRTA retroactively. Judge Rivera’s dissenting opinion, argued defendant’s argument against the ban on felons obtaining gun licenses had merit and the matter should have been sent back to create a record. Judge Halligan’s dissent argued the constitutionality of the roadblock was not demonstrated. People v Pastrana, 2023 NY Slip Op 05966, CtApp 11-21-23
Practice Point: The Marihuana Regulation and Taxation Act (MRTA), which under certain circumstances (which were present in this case) prohibits a search based upon the odor of marijuana, does not apply retroactively.
THE LIFE INSURANCE POLICY REQUIRED WRITTEN NOTICE OF ANY ASSIGNMENT OF THE POLICY; THE FAILURE TO PROVIDE WRITTEN NOTICE PRECLUDED THE ASSIGNEE FROM BRINGING A CLAIM UNDER THE POLICY AGAINST THE INSURER (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Halligan, answering a question from the Second Circuit, determined the failure to give notice of the assignment of the life insurance policy precluded the assignee from suing the insurer:
The United States Court of Appeals for the Second Circuit has asked us to determine whether, where a life insurance policy provides that “assignment will be effective upon Notice” in writing to the insurer, the failure to provide such written notice voids the assignment so that the purported assignee does not have contractual standing to bring a claim under the Policy … . … [W]e reformulate the question as follows:
Where a life insurance policy provides that ‘assignment will be effective upon notice’ in writing to the insurer, does the failure to provide such written notice deprive the purported assignee of contractual standing to bring a claim under the Policy against the insurer?
We answer the reformulated question in the affirmative. Brettler v Allianz Life Ins. Co. of N. Am.2023 NY Slip Op 05958, CtApp 11-20-23
Practice Point: Here the life insurance policy required written notice to the insurer of any assignment of the policy. The failure to provide notice precluded the assignee from bringing a claim under the policy against the insurer.
THE COURT OF APPEALS, OVERRULING PRECEDENT, DETERMINED THE AUTOPSY REPORTS WERE “TESTIMONIAL” IN NATURE AND SHOULD NOT HAVE BEEN ADMITTED THROUGH AN EXPERT WHO DID NOT PARTICIPATE IN THE AUTOPSIES; ADMISSION OF THE REPORTS AND THE EXPERT’S TESTIMONY VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Singas, reversing (modifying) the Appellate Division, determined the admission of two autopsy reports through an expert witness who did not perform the autopsies, as well as the witness’s testimony, violated defendant’s right to confront the witnesses against him. The Court of Appeals overruled its decision in Frycinet (11 NY3d at 39) which concluded autopsy reports were not “testimonial” and therefore did not implicate the Confrontation Clause. The erroneous admission of the evidence here, however, was deemed harmless by both the Appellate Division and the Court of Appeals:
Pursuant to [the] Confrontation Clause, a witness’s out-of-court “testimonial” statement may only be admitted for its truth where the witness appears at trial or, if the witness is unavailable for trial, where the defendant has had a prior opportunity to cross-examine that witness (Crawford v Washington, 541 US 36, 68 [2004]). …
This Court had occasion to consider the impact of Crawford and its progeny on the admission of autopsy reports in Freycinet, where it held that a redacted autopsy report was not testimonial for purposes of the Confrontation Clause (11 NY3d at 39). In reaching this conclusion, the Court evaluated four purported “indicia of testimoniality”: (1) “the extent to which the entity conducting the procedure is an arm of law enforcement”; (2) “whether the contents of the report are a contemporaneous record of objective facts”; (3) “whether a pro-law-enforcement bias is likely to influence the contents of the report”; and (4) “whether the report’s contents are directly accusatory in the sense that they explicitly link the defendant to the crime” … . All four factors, the Court concluded, weighed in the People’s favor and thus, the autopsy report at issue was not testimonial … . * * *
We now hold that Freycinet should no longer be followed because it is inconsistent with the demands of the Confrontation Clause as articulated more recently by the Supreme Court. * * *
… [I]t is the People’s obligation to establish that their testifying experts, who did not perform or observe the relevant autopsy, reached their conclusions themselves based upon a review of the proper materials rather than the conclusions of the performing examiner. People v Ortega, 2023 NY Slip Op 05956, CtApp 11-21-23
Practice Point: Autopsy reports are testimonial in nature and must be admitted in evidence through an expert who participated in the autopsies. The erroneous admission of the testimonial evidence was deemed harmless here, however.
THE POLICE WERE ALLOWED INTO THE VESTIBULE OF A TWO-FAMILY RESIDENCE BUT WERE NOT GIVEN PERMISSION TO ENTER THE APARTMENT WHERE DEFENDANT WAS SEIZED; DEFENDANT’S SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the Appellate Division, over a three-judge dissent, determined the police were only given permission to enter the vestibule of a two-family residence, not the apartment where defendant was seized:
Well before daybreak, four armed officers knocked repeatedly on the exterior door and window of a two-family residence. Someone responded by coming to the exterior door and opening it. The officers identified themselves as police, the person moved aside, and the officers entered the vestibule. Through the doorway of the downstairs apartment, they saw the person they wished to arrest, entered that apartment, and arrested him. The question before us is whether the suppression court should have granted Mr. Cuencas’s [defendant’s] motion to suppress for lack of consent for police to enter the apartment. * * *
… [T]he officers never sought consent to enter Mr. Cuencas’s apartment — only to enter the common vestibule to speak the person who answered the exterior door. The record shows that there were separate doors inside the vestibule, one for each of the two apartments in the building, each bearing a lock, and that each door was open. When the People asked Detective Fogelman to describe how he perceived the building upon his arrival at 5:30 AM, he testified that “It may have had two apartments, an upstairs and a downstairs.” Detective Fogelman asked for consent to enter through the exterior door into the vestibule, not into either of the two apartments, and it is not disputed that Mr. Cuencas’s apartment had a door separating it from the vestibule. People v Cuencas, 2023 NY Slip Op 05974, CtApp 11-21-23
Practice Point: The person who answered the door allowed the police to enter the vestibule of a two-family residence. But consent to enter the vestibule did not constitute consent to enter the first-floor apartment where defendant was seized. The suppression motion should have been granted.
PETITIONER, THE PRESIDENT AND MAJORITY STOCK HOLDER OF A CONSTRUCTION COMPANY, WAS THE “PERSON RESPONSIBLE” FOR COLLECTING AND PAYING EMPLOYEE WITHHOLDING TAXES; TWO-JUDGE DISSENT (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a two-judge dissent, affirming the New York State Tax Tribunal and the Appellate Division, determined petitioner, the president and majority shareholder of a construction company, was the person responsible for the collection and payment of employee withholding taxes:
… [P]etitioner and the dissenters argue that the Tribunal employed an incorrect legal test in making its determination, under Tax Law § 685 (g), that petitioner was a person responsible for the collection and payment of employee withholding taxes on behalf of New England Construction Company, Inc. (NECC), a corporation of which petitioner was president and the majority shareholder, and on behalf of which petitioner had repeatedly held himself out as being responsible for payment of taxes. We conclude that the Tribunal committed no such error. Rather, in resolving the question before it, the Tribunal properly considered whether petitioner had the actual authority and effective power to pay the withholding taxes and, thus, was a “responsible person” under section 685. Moreover, substantial evidence supports the Tribunal’s determination that petitioner willfully failed to pay the withholding taxes. * * *
Under Tax Law § 685 (g), a person may be held liable for the withholding taxes of a corporation if the person is “required to collect, truthfully account for, and pay over the tax imposed” and “willfully fails to collect such tax or . . . willfully attempts in any manner to evade or defeat the tax or the payment thereof.” … [S]ection 685 (g) essentially provides that “a person responsible for collecting and paying taxes withheld from employees’ wages is liable for a 100% civil penalty if [that person] willfully fails to collect and pay over the tax” … . Such a responsible person includes “an officer or employee of a corporation . . . who . . . is under a duty to perform the act in respect of which the violation occurs” … . Under the broad terms of this definition, more than one person can be a responsible person under Tax Law § 685 … . Because section 685 (g) was modeled after 26 USC § 6672 (a) … , the terms in the former are to be interpreted in conformity with the latter unless a different meaning is clearly required … . Matter of Black v New York State Tax Appeals Trib., 2023 NY Slip Op 05961, CtApp, 11-20-23
Practice Point: Tax Law 685 makes the “person responsible” for the collection and payment of employee withholding taxes civilly liable for failure to pay the tax.
THE NEW YORK CITY ADMINSTRATIVE CODE PROVISION CRIMINALIZING THE USE OF CERTAIN RESTRAINTS WHICH RESTRICT AIR AND BLOOD FLOW IS VALID (CT APP).
The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Garcia, determined the New York City Administrative Code provision which criminalizes the use of restraints which restrict air or blood flow is valid:
We are asked to determine whether section 10-181 of the Administrative Code of the City of New York, which makes criminal the use of certain restraints by police officers during an arrest, violates the New York Constitution on either preemption or due process grounds. Because section 10-181 does not conflict with state law or regulate in a field in which the state has expressly or impliedly precluded local legislation, it is a permissible exercise of local lawmaking authority. The language of the section also provides fair notice of the conduct prohibited and is sufficiently definite to avoid arbitrary or discriminatory enforcement and is therefore not void for vagueness.
In July 2020, New York City Administrative Code § 10-181 became law, making it a misdemeanor offense for any “person” to “restrain an individual in a manner that restricts the flow of air or blood by compressing the windpipe or the carotid arteries on each side of the neck, or sitting, kneeling, or standing on the chest or back in a manner that compresses the diaphragm, in the course of effecting or attempting to effect an arrest” (Administrative Code of City of NY § 10-181 [a], [b]).
… [T]he enactment of section 10-181 was spurred, in large part, by the widely publicized deaths of Eric Garner and George Floyd following the use of force by police officers during their arrests … . Police Benevolent Assn. of the City of New York, Inc. v City of New York, 2023 NY Slip Op 05960, CtApp 11-21-23
Practice Point: A NYC Administrative Code provision criminalizing restraints which restrict blood or air flow is valid and enforceable.
THE LOCAL LAW CREATING THE POLICE ACCOUNTABILITY BOARD (PAB) WITH THE POWER TO DISCIPLINE POLICE OFFICERS CONFLICTED WITH THE POLICE UNION’S COLLECTIVE BARGAINING AGREEMENT (CBA); BECAUSE THE UNION NEVER AGREED TO THE TRANSFER OF DISCIPLINARY POWERS TO THE PAB, THE LOCAL LAW WAS INVALID (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Egan, affirming the Appellate Division, over a three-judge dissent, determined the Local Law creating a Police Accountability Board (PAB) with the power to discipline police officers was invalid because the law conflicted with the union’s (the Locust Club’s) collective bargaining agreement (CBA) and the union had never agreed to the change:
Since the 1980s, the collective bargaining agreement (hereinafter CBA) in place between the City of Rochester and the Rochester Police Locust Club, Inc. (hereinafter the Locust Club), the union representing police officers in the City, has governed the procedure for disciplining police officers. In 2019, the Council of the City of Rochester adopted, the Mayor of the City of Rochester signed, and voters approved via referendum, Local Law No. 2, which created the Police Accountability Board (hereinafter PAB), a body of nine City residents whose powers included the exclusive authority to “investigate and make determinations respecting” any police officer accused of misconduct. That authority included the power to conduct a hearing on the alleged misconduct and to impose disciplinary sanctions, up to and including dismissal, if the officer were found guilty. The City’s police chief was free to impose additional punishment upon that officer, but was obliged at a minimum to implement the sanction determined by the PAB.
There is no dispute that the disciplinary procedures set forth in Local Law No. 2 deviated in significant respects from the agreed-upon procedures set forth in the CBA then in effect and that they were not agreed to by the Locust Club. The Locust Club and others commenced this combined CPLR article 78 proceeding and declaratory judgment action to challenge Local Law No. 2 and, in particular, its transfer of police disciplinary authority to the PAB. Supreme Court ultimately granted the petition in part and held, among other things, that Local Law No. 2 was invalid to the extent that it transferred that authority. Upon the City Council’s appeal, the Appellate Division affirmed … . The Appellate Division held that the City was obliged to negotiate with the Locust Club on the issue of police discipline because in 1985 it had repealed the provision of its charter vesting a local official in charge of the police force with unilateral authority over police discipline and that the City’s effort to revive that authority in Local Law No. 2 necessarily failed under the Municipal Home Rule Law because it was inconsistent with a general law, namely, “the Taylor Law’s mandate of collective bargaining for police discipline” … . Matter of Rochester Police Locust Club, Inc. v City of Rochester, 2023 NY Slip Op 05959, CtApp 11-21-23
Practice Point: The Local Law creating the Police Accountability Board (PAB) and granting the PAB the power to discipline police officers conflicted with disciplinary provisions in the police union’s collective bargaining agreement (CBA). Because the union never agreed to the transfer of disciplinary powers to the PAB, the Local Law was deemed invalid.
TO COMPLY WITH THE CONFRONTATION CLAUSE, THE ANALYST WHO TESTIFIES ABOUT A DNA PROFILE MUST HAVE PARTICIPATED IN THE FINAL STAGE OF THE DNA ANALYSIS OR MUST HAVE CONDUCTED AN INDEPENDENT ANALYSIS USING ONLY THE RAW DATA; THE WITNESS HERE DID NOT MEET THAT CRITERIA (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the Appellate Division, determined the People did not demonstrate the witness through whom the DNA evidence was admitted had the necessary involvement in the DNA analysis:
We have held that “a single analyst” may testify so long as it is “an analyst who witnessed, performed or supervised the generation of defendant’s DNA profile, or who used his or her independent analysis on the raw data, as opposed to a testifying analyst functioning as a conduit for the conclusions of others” … . Accordingly, testimony from an analyst is sufficient where the witness has engaged in ” ‘the final-level DNA analysis, reviewed the results of the preliminary evidence processing conducted by colleagues, produced the relevant DNA profiles, and expressed her expert opinion’ ” as to the DNA match … . …
… [T]he testifying analyst must have either participated in or directly supervised this “final” step that generates the DNA profile, or must conduct an “independent analysis” of the data used to do so in a manner that enables replication of the determinations made at that stage in order to verify the profile …. The record here fails to establish that the testifying analyst had the requisite involvement with either of the DNA profiles. People v Jordan, 2023 NY Slip Op 05957, CtApp 11-21-23
Practice Point: Here the People did not demonstrate the witness testifying about defendant’s DNA profile participated in the final stage of the DNA analysis or conducted an independent analysis using only the raw data. Therefore the analysist’s testimony violated the Confrontation Clause.