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PLAINTIFFS HAD STANDING TO SUE FOR LEGAL MALPRACTICE STEMMING FROM A TRIAL BROUGHT IN THE NAME OF PLAINTIFFS’ CHAPTER 13 BANKRUPTCY TRUSTEE.

The Second Department, reversing Supreme Court, over a dissent, determined the plaintiffs, who were discharged in Chapter 13 bankruptcy proceedings, could sue for legal malpractice stemming from a personal injury trial brought in the name of the bankruptcy trustee. The plaintiffs alleged the recovery in the personal injury trial was diminished because the jury became aware an injury report had been altered by the defedant lawyers and a doctor:

… [W]e find that the plaintiffs, as Chapter 13 debtors, had standing to maintain this action. We note that standing, of course, concerns the absence or presence of a sufficiently cognizable stake in the outcome of the litigation … .

In contrast to Chapter 7 proceedings, the object of a Chapter 13 proceeding is the rehabilitation of the debtor under a plan that adjusts debts owed to creditors by the debtor’s regular periodic payments derived principally from income. Thus, in a Chapter 13 proceeding, a debtor generally retains his property, if he so proposes, and seeks court confirmation of a plan to repay his debts over a three- to five-year period … . Payments under a Chapter 13 plan are usually made from a debtor’s “future earnings or other future income” … . “Accordingly, the Chapter 13 estate from which creditors may be paid includes both the debtor’s property at the time of his bankruptcy petition, and any wages and property acquired after filing” … . Assets acquired after a Chapter 13 plan is confirmed by the court are not included as property of the estate, unless they are necessary to maintain the plan … , or the trustee seeks a modification of the plan to remedy a substantial change in the debtor’s income or expenses that was not anticipated at the time of the confirmation hearing … . Unlike Chapter 7 proceedings, there is no separation of the estate property from the debtor under a Chapter 13 proceeding, except to the extent that the plan, as confirmed by order of the court, places control over an asset in the hands of the trustee … . This is the basis for the conclusion that, while Chapters 7 and 11 debtors lose capacity to maintain civil suits, Chapter 13 debtors do not … . Thus, a Chapter 13 debtor keeps all, or at the very least some, of the income and property he or she acquires during the administration of the repayment plan. Accordingly, in this action, it was never the bankruptcy estate, or its creditors, that was damaged by a decrease in the amount awarded in the underlying personal injury action due to the alleged conduct of the defendants. Only the plaintiffs had an interest in the recovery of damages in the personal injury action … . Moreover, it was the plaintiffs and the defendants who were engaged in a face-to-face relationship in the underlying personal injury action and to the extent the defendants allegedly breached a duty in that action the foreseeable harm was to the plaintiffs, not the trustee or the bankruptcy estate. Thus, under the circumstances presented here, the relationship of the plaintiffs to the personal injury action is unique and demands an exception to the general rule regarding privity … . Nicke v Schwartzapfel Partners, P.C., 2017 NY Slip Op 02437. 2nd Dept 3-29-17

 

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TERMINATION OF OUT OF WORK SCHOOL DISTRICT EMPLOYEE PURSUANT TO THE CIVIL SERVICE LAW IS NOT ARBITRABLE, PETITION TO STAY ARBITRATION SHOULD HAVE BEEN GRANTED.

The Second Department determined the school district’s petition to stay arbitration should have been granted. A school district employee, Turco, was injured on the job and was out of work on Workers’ Compensation leave for more than a year. The district terminated his employment pursuant to Civil Service Law 71. Turco filed a grievance with his union alleging the termination violated the collective bargaining agreement. The Second Department held that the matter was not arbitrable because of the conflict between the agreement and the statute:

Despite the general policy favoring the resolution of disputes by arbitration, some matters, because of competing considerations of public policy, cannot be heard by an arbitrator. “If there is some statute, decisional law or public policy that prohibits arbitration of the subject matter of dispute, . . . the claim is not arbitrable'” … . Indeed, the public policy exception can be invoked as a threshold issue to preclude arbitration pursuant to CPLR 7503 … . “Preemptive judicial intervention in the arbitration process is warranted where the arbitrator [cannot] grant any relief without violating public policy” … . * * *

Here, the district terminated Turco’s employment pursuant to Civil Service Law § 71. Section 71 provides that a public employer may terminate an employee who is absent due to an occupational disability for a cumulative period of one year if the employee remains physically or mentally unable to return to work … . Matter of Enlarged City Sch. Dist. of Middletown N.Y. v Civil Serv. Empls. Assn., Inc., 2017 NY Slip Op 02421, 2nd Dept 3-29-17

 

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DEPARTMENT OF CONSUMER AFFAIR’S DETERMINATION WAS AFFECTED BY AN ERROR OF LAW WHICH RESULTED IN A MISINTERPRETATION OF THE ADMINISTRATIVE CODE, DETERMINATION SHOULD HAVE BEEN ANNULLED.

The Second Department determined that the imposition of a fine by the NYC Department of Consumer Affairs (DCA) was improper because the fine was based upon a misinterpretation of a provision of the NYC Administrative Code. The Article 78 petition seeking annulment of the DCA’s determination should have been granted:

Here, the DCA’s determination was affected by an error of law, since its interpretation of the Administrative Code provision which the petitioner was charged with violating was unreasonable … . The Administrative Code provision at issue provides, in relevant part: “Any person requesting application information from a prospective tenant or tenants shall post a sign . . . in any location at which the principal purpose is conducting business transactions pertaining to the rental of residential real estate properties” (Administrative Code § 20-809[a]). It was undisputed by the respondents that the petitioner’s business concerned sales of real estate properties, although the petitioner admitted to handling one or two residential rentals per year. Under these circumstances, the petitioner correctly argued that the Administrative Code provision was inapplicable to it because it did not have a “location at which the principal purpose is conducting business transactions pertaining to the rental of residential real estate properties” (id.). Matter of Arash Real Estate & Mgt. Co. v New York City Dept. of Consumer Affairs, 2017 NY Slip Op 02416, 2nd Dept 3-29-17

 

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THREE YEAR STATUTE OF LIMITATIONS FOR A FALSE ARREST CAUSE OF ACTION UNDER 42 USC 1983 BEGAN TO RUN UPON ARRAIGNMENT.

The First Department noted that the three year statute of limitations for a false arrest cause of action under 42 USC 1983 began to run upon arraignment:

The three-year limitations period on a section 1983 claim based on false arrest begins to run “when the alleged false imprisonment ends” — that is, when the arrestee becomes subject to the legal process such as being “bound over by a magistrate or arraigned on charges” … . Here, because plaintiff was arraigned on July 16, 2011, the limitations period on his section 1983 claim based on false arrest ended on July 16, 2014, approximately three months before plaintiff filed this action. Accordingly, the claim is time-barred. Cruz v City of New York, 2017 NY Slip Op 02386, 1st Dept 3-28-17

 

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ALTHOUGH DEFENDANT OBJECTED TO THE SANDOVAL RULING AT TRIAL, THE OBJECTION WAS NOT ON THE PRECISE GROUND RAISED ON APPEAL, THE ISSUE WAS THEREFORE NOT PRESERVED.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge concurring opinion, determined defendant’s objection to a Sandoval ruling about the admissibility of evidence of a juvenile delinquency adjudication did not preserve the precise issue which was the subject of the appeal. The concurring opinion argued the error had been preserved, but was harmless. The People sought to introduce evidence of the facts underlying the juvenile delinquency adjudication, but not the adjudication itself. The defendant objected arguing that the defendant should not be judged by actions taken when his mind and values were undeveloped. The court ruled the People could elicit the fact that defendant was adjudicated a juvenile delinquent, but could not elicit the facts. On appeal defendant argued it was a legal error to admit evidence of the juvenile delinquency adjudication:

Under the unique factual circumstances of this case and based on the trial court’s colloquy with counsel, we conclude that defendant’s challenge to the Sandoval ruling is unpreserved. Defendant did not make the argument he now asserts at the time of the alleged erroneous ruling, or at any time at all. Instead, he argued, against the People’s initial proffer, that the court should deny the request because defendant’s actions should not be judged based on a young offender’s undeveloped mind and sense of values. Defendant failed to argue that it would be legal error to permit the People to elicit that defendant was adjudicated a juvenile delinquent … . Defendant did not make that argument before or after the compromise ruling, or at any point during the proceedings “when the court had the ‘opportunity of effectively chang[ing]’ its ruling” … and avoiding the error of which defendant now complains. People v Jackson, 2017 NY Slip Op 02361, CtApp 3-28-17

 

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DEFENDANT’S HAND UNDER HIS HOODIE WAS SUFFICIENT TO SUPPORT THE ELEMENT OF ROBBERY FIRST WHICH REQUIRES THE DISPLAY OF WHAT APPEARS TO BE A FIREARM.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a full-fledged dissenting opinion, determined the evidence was sufficient to support the element of robbery first degree which requires the display of what appears to be a firearm. The defendant threatened to shoot the teller and, at some point in time, one of his hands was under his hoodie.  The defendant was quickly apprehended and no firearm was found:

We reject defendant’s assumption that the timing of the moment at which the defendant places a hand under his clothing is dispositive of the legal sufficiency analysis. A victim may reasonably believe that a gun is being used, on the basis of conduct that makes it appear that the defendant is holding a gun, regardless of whether the defendant makes a movement while addressing the victim or keeps his hand concealed throughout the encounter in a manner and location suggesting the presence of a gun. Whether a defendant displays what appears to be a firearm does not depend on when precisely the defendant begins the display, provided it occurs “in the course of the commission of the crime or of immediate flight therefrom” (Penal Law § 160.15 [4]). People v Smith, 2017 NY Slip Op 02362, CtApp 3-28-17

 

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EVIDENCE OF AN ALLEGED PRIOR IDENTICAL SEXUAL ASSAULT NOT ADMISSIBLE TO SHOW INTENT, MOTIVE, OR AS BACKGROUND EVIDENCE, CONVICTION REVERSED.

The Court of Appeals, in a full-fledged opinion by Justice Abdus-Salaam, reversing defendant’s conviction, determined evidence of an alleged prior sexual assault, identical to the charged offense, should not have been admitted to show intent or motive, or as background evidence:

Here, … the victim’s testimony as to the alleged prior sexual abuse was not necessary to show the nature of the relationship between her and defendant or to “sort out ambiguous but material facts” … . The victim testified as to her relationship with defendant, stating that they are relatives who lived, at certain times, in the same home and that on the night of the indicted sexual assault, she and her boyfriend went to defendant’s home to spend time together and drink alcohol. The introduction of the prior alleged assault was not necessary to clarify their relationship or to establish a narrative of the relevant events.

Further, the evidence of the uncharged crime was not admissible to show intent. The intent here — sexual gratification — can be inferred from the act. * * *

To the extent the evidence was admissible to show defendant’s motive in getting the victim drunk, the evidence was highly prejudicial, as it showed that defendant had allegedly engaged in the exact same behavior on a prior occasion with the same victim — classic propensity evidence. The prejudicial nature of the Molineux evidence far outweighed any probative value that may be attributed to it. People v Leonard, 2017 NY Slip Op 02359, CtApp 3-28-17

 

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POSSESSION OF COCAINE CAN BE PROVEN WITHOUT SUBMITTING THE COCAINE ITSELF AS EVIDENCE.

The Court of Appeals, in a short memorandum decision, noted that possession of cocaine can be proven without submitting the cocaine itself as evidence:

Although the People did not recover or introduce any of the cocaine that defendant was charged with possessing, “direct evidence in the form of contraband or other physical evidence is not the only adequate proof” (People v Samuels , 99 NY2d 20, 24 [2002]). The People presented sufficient evidence in the form of, among other things, defendant’s intercepted phone calls replete with drug-related conversations, visual surveillance, and the testimony of cooperating witnesses. People v Whitehead, 2017 NY Slip Op 02358, CtApp 3-28-17

 

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STATE’S RULING SCHOOL DISTRICT VIOLATED INDIVIDUALS WITH DISABILITIES ACT NOT FINAL, ARTICLE 78 PROCEEDING CHALLENGING RULING PROPERLY DISMISSED.

The Court of Appeals determined the petitioner school district could not bring an Article 78 proceeding to challenge the state’s finding that the district’s dispute resolution practices for placing students with disabilities violated federal (Individuals with Disabilities Education Act [IDEA]) and state law because the state’s decision was not final:

In 2012, the State found that the District’s dispute resolution practices violated federal and state law and directed the District to take corrective action. Although the State informed the District that failure to comply could result in further enforcement actions, including withholding federal funds, the State did not make a final decision to withhold funds.

A proceeding under CPLR article 78 “shall not be used to challenge a determination which is not final or can be adequately reviewed by appeal to a court or to some other body or officer” … . Likewise, this Court has recognized that “[t]o challenge an administrative determination, the agency action must be final and binding upon the petitioner” … . In addition, in the absence of injury, there is no standing to bring an article 78 proceeding … .

Assuming, without deciding, that a school district may bring an article 78 proceeding to challenge a final determination by the State under the IDEA, here, the State has not made a final determination, the District has not shown that it has exhausted its administrative remedies, and the District is unable to articulate any actual, concrete injury that it has suffered at this juncture. Accordingly, the District’s petition was properly dismissed. Matter of East Ramapo Cent. Sch. Dist. v King, 2017 NY Slip Op 02360, CtApp 3-28-17

 

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PLANNING BOARD ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT DENIED PETITIONER’S CHALLENGE TO A WOODLOT ENVIRONMENTAL PROTECTION OVERLAY DISTRICT (EPOD) FINDING, PLANNING BOARD DID NOT CONSIDER THE CRITERIA LAID OUT IN THE TOWN CODE.

The Fourth Department determined the respondent town planning board acted arbitrarily and capriciously when it denied petitioner’s challenge to the finding his property was within the boundaries of a woodlot environmental protection overlay district (EPOD). The Fourth Department held that the respondent was obligated to consider the EPOD criteria laid out in the Town Code and failed to do so:

Petitioner owns property located within a Woodlot Overlay Protection District in the Town of Irondequoit, as set forth on the Woodlots Map of the Town of Irondequoit. Irondequoit Town Code (Town Code) § 235-43 provides that the locations and boundaries of an environmental protection overlay district (EPOD) shall be delineated on the official set of maps, but further states that those maps “shall be used for reference purposes only and shall not be used to delineate specific or exact boundaries of the various overlay districts. Field investigations and/or other environmental analyses may be required in order to determine whether or not a particular piece of property is included within one or more of the overlay districts.” Section 235-44 then provides that the “Town Department of Planning and Zoning shall be responsible for interpreting [EPOD] boundaries based on an interpretation of the Official Town of Irondequoit EPOD Maps, as well as the use of various criteria set forth in this article for determining such district boundaries.” For a Woodlot EPOD, those criteria are set forth at section 235-53 (B) of the Town Code and include, inter alia, that the property have “communities” of certain species of trees. Finally, section 235-44 provides that “[a]ppeals from a determination of the Town Department of Planning and Zoning regarding boundaries of overlay districts shall be made to the Town Planning Board in accordance with the public hearing procedures.” * * *

We conclude that petitioner stated a claim that respondent acted arbitrarily and capriciously in denying the appeal because the criteria set forth in Town Code § 235-53 (B) were not considered by respondent. Based on Town Code §§ 235-43 and 235-44, respondent is responsible for interpreting the boundary of the particular Woodlot EPOD encompassing petitioner’s property, based on the criteria set forth in Town Code … . Matter of Gilbert v Planning Bd. of Town of Irondequoit, 2017 NY Slip Op 02210, 4th Dept 3-24-17

 

ZONING (PLANNING BOARD ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT DENIED PETITIONER’S CHALLENGE TO A WOODLOT ENVIRONMENTAL PROTECTION OVERLAY DISTRICT (EPOD) FINDING, PLANNING BOARD DID NOT CONSIDER THE CRITERIA LAID OUT IN THE TOWN CODE)/ENVIROMENTAL LAW (ENVIRONMENTAL PROTECTION OVERLAY DISTRICT, (PLANNING BOARD ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT DENIED PETITIONER’S CHALLENGE TO A WOODLOT ENVIRONMENTAL PROTECTION OVERLAY DISTRICT (EPOD) FINDING, PLANNING BOARD DID NOT CONSIDER THE CRITERIA LAID OUT IN THE TOWN CODE)/PLANNIG BOARD (PLANNING BOARD ACTED ARBITRARILY AND CAPRICIOUSLY WHEN IT DENIED PETITIONER’S CHALLENGE TO A WOODLOT ENVIRONMENTAL PROTECTION OVERLAY DISTRICT (EPOD) FINDING, PLANNING BOARD DID NOT CONSIDER THE CRITERIA LAID OUT IN THE TOWN CODE)

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