Page 1260 – New York Appellate Digest

/ Immunity, Municipal Law

TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983.

The Second Department, reversing Supreme Court, determined defendant members of a town board were absolutely immune from a lawsuit stemming from their legislative activities:

… [T]he defendants are entitled to dismissal of the complaint insofar as asserted against the defendants who are members of the Town Board … based on the principle of absolute immunity. Local legislators are “absolutely immune from suit under [42 U.S.C.] § 1983 for their legislative activities” … , and such immunity is applicable to all actions within the “sphere of legitimate legislative activity” … . The allegations asserted in the complaint against the Town Board defendants are based on actions that were legislative and within the sphere of legislative activity. Therefore, the Town Board defendants are entitled to absolute immunity … .

The defendants are also entitled to dismissal of the complaint insofar as asserted against the defendant Robert W. Fitzsimmons, an official with the Town … building department. The complaint does not allege that Fitzsimmons undertook any actions that violated “clearly established constitutional rights of which a reasonable person would have been aware” … . Therefore, the defendants are entitled to dismissal of the complaint insofar as asserted against Fitzsimmons, based on the principle of qualified immunity … . 24 Franklin Ave. R.E. Corp. v Cannella, 2016 NY Slip Op 03499, 2nd Dept 5-4-16

MUNICIPAL LAW (TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983)/IMMUNITY (TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983)/ABSOLUTE IMMUNITY (TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983)/QUALIFIED IMMUNITY (TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983)/42 USC 1983 (TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983)

May 04, 2016

/ Insurance Law

NO-FAULT CARRIER DID NOT DEMONSTRATE LETTERS TO DEFENDANT SCHEDULING AN EXAMINATION UNDER OATH WERE TIMELY AND PROPERLY MAILED, CARRIER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED.

The Second Department determined plaintiff insurance company's motion for summary judgment under the no-fault insurance law should have been denied. Plaintiff alleged defendant failed to comply with the requirement that defendant submit to an examination under oath (EUO). The Second Department determined plaintiff did not demonstrate the letters to defendant scheduling the EUO were timely and properly mailed:

Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” … . ” The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed'” … . However, for the presumption to arise, the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed … . “Denial of receipt by the insured[ ], standing alone, is insufficient to rebut the presumption” … .

As the defendant correctly contends, the plaintiffs failed to establish, prima facie, that they timely and properly mailed the EUO letters to the defendant. The affirmation of the plaintiffs' counsel contained conclusory allegations regarding his office practice and procedure, and failed to establish that the practice and procedure was designed to ensure that the EUO letters were addressed to the proper party and properly mailed … . Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 2016 NY Slip Op 03485, 2nd Dept 5-4-16

INSURANCE LAW (NO-FAULT CARRIER DID NOT DEMONSTRATE LETTERS TO DEFENDANT SCHEDULING AN EXAMINATION UNDER OATH WERE TIMELY AND PROPERLY MAILED, CARRIER'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED)/NO-FAULT INSURANCE (NO-FAULT CARRIER DID NOT DEMONSTRATE LETTERS TO DEFENDANT SCHEDULING AN EXAMINATION UNDER OATH WERE TIMELY AND PROPERLY MAILED, CARRIER'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED)

May 04, 2016

/ Employment Law

COMPLAINT STATED A CAUSE OF ACTION UNDER THE WHISTLEBLOWER STATUTE.

The Second Department, reversing Supreme Court, determined plaintiff had stated a cause of action under Labor Law 740, the whistleblower statute:

Labor Law § 740 creates a cause of action in favor of an employee who has suffered a “retaliatory personnel action” as a consequence of, inter alia, “disclos[ing], or threaten[ing] to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety,” or as a consequence of “object[ing] to, or refus[ing] to participate in any such activity, policy or practice in violation of a law, rule or regulation” … . …

The complaint alleged, among other things, that the plaintiff was offered a promotion … . The complaint also alleged that the terms of the promotion would have placed the plaintiff under the supervision of the defendant Tonya Parker, who was not among the class of persons authorized by law or regulation to supervise a registered nurse in clinical activities. The complaint also alleged that the plaintiff pointed out that Parker was not authorized to supervise her, but the terms of the promotion were not changed. The complaint further alleged that after the plaintiff declined to accept the promotion, she was discharged from her position as Head of Nursing, and another nurse was given the position that plaintiff had turned down, under Parker's supervision. Fough v August Aichhorn Ctr. for Adolescent Residential Care, Inc., 2016 NY Slip Op 03469, 2nd Dept 5-4-16

EMPLOYMENT LAW (COMPLAINT STATED A CAUSE OF ACTION UNDER THE WHISTLEBLOWER STATUTE)/LABOR LAW (COMPLAINT STATED A CAUSE OF ACTION UNDER THE WHISTLEBLOWER STATUTE)/WHISTLEBLOWER STATUTE (COMPLAINT STATED A CAUSE OF ACTION UNDER LABOR LAW 740)

May 04, 2016

/ Criminal Law, Evidence

EVIDENCE SUPPORTED JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED.

The Second Department determined the trial evidence supported defendant's request for a jury instruction of the justification defense. A new trial was ordered:

Here, based upon the testimony of the People's witnesses, there was a reasonable view of the evidence that would permit the jury to conclude that the defendant reasonably believed that the use of deadly force was necessary to prevent Jimmy [the victim] from using deadly force against the defendant or his friend, Ranjit … . There was testimony that, immediately before he was stabbed, Jimmy was belligerent and wielded a knife inside the defendant's home, and that he had threatened Ranjit's life. Significantly, Ranjit and another witness described Jimmy as the initial aggressor … . Moreover, this incident occurred in the defendant's dwelling and, thus, to the extent that he believed that Jimmy was about to use deadly physical force against him, he was under no duty to retreat … . People v Singh, 2016 NY Slip Op 03537, 2nd Dept 5-4-16

CRIMINAL LAW (EVIDENCE SUPPORTED JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)/EVIDENCE (CRIMINAL LAW, EVIDENCE SUPPORTED JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)/JUSTIFICATION DEFENSE (CRIMINAL LAW, EVIDENCE SUPPORTED JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED)

May 04, 2016

/ Criminal Law, Evidence

PROVIDING AN UNREDACTED STATEMENT TO THE JURY BY MISTAKE DEPRIVED DEFENDANT OF A FAIR TRIAL AND REQUIRED REVERSAL.

The Second Department determined providing the unredacted statement to the jury by mistake deprived defendant of a fair trial, without regard to whether the mistake contributed to defendant's conviction:

CPL 310.20(1) provides, “[u]pon retiring to deliberate, the jurors may take with them: . . . Any exhibits received in evidence at the trial which the court, after according the parties an opportunity to be heard upon the matter, in its discretion permits them to take.” Here, the defendant's written statement was admitted into evidence at trial, but the parties agreed to redact the statement so as to omit a portion of it indicating, in part, that the defendant's girlfriend “attempted to say I [the defendant] raped her [the defendant's girlfriend].” The parties further agreed that they would return to court before the jury received that exhibit. The redacted portion of the statement was unrelated to the robbery for which the defendant was standing trial. However, in violation of CPL 310.20(1) and the parties' express agreement, the defendant's statement was mistakenly provided to the jury, without the attorneys having been notified first, and without the statement having been fully redacted … . Instead of granting the defense attorney's motion for a mistrial, as it should have done in view of the highly prejudicial nature of the redacted portion of the statement, the Supreme Court gave an instruction regarding the statement that was ineffectual in curing the prejudice. “The right to a fair trial is self-standing,” and where error operates to deprive the defendant of a fair trial, an appellate court “must reverse the conviction and grant a new trial, quite without regard to any evaluation as to whether the errors contributed to the defendant's conviction” … . People v Reid, 2016 NY Slip Op 03535, 2nd Dept 5-4-16

CRIMINAL LAW (PROVIDING AN UNREDACTED STATEMENT TO THE JURY BY MISTAKE DEPRIVED DEFENDANT OF A FAIR TRIAL AND REQUIRED REVERSAL)/EVIDENCE (CRIMINAL LAW, PROVIDING AN UNREDACTED STATEMENT TO THE JURY BY MISTAKE DEPRIVED DEFENDANT OF A FAIR TRIAL AND REQUIRED REVERSAL)

May 04, 2016

/ Criminal Law

MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL, SECOND TRIAL NOT PRECLUDED.

The Second Department determined there was manifest necessity for a mistrial in this murder case. Defendant’s petition to prohibit a second trial was therefore properly denied:

In general, “double jeopardy will bar a retrial when a mistrial is granted over the defendant’s objection, unless the mistrial is granted as the product of manifest necessity'” … . “Manifest necessity for a mistrial has been found where the court concludes, after conducting a probing and tactful inquiry,’ that a juror is grossly unqualified to continue serving” and there are no alternates available … . Before declaring a mistrial, the court has “the duty to consider alternatives to a mistrial and to obtain enough information so that it is clear that a mistrial is actually necessary” … . A trial court’s determination that a mistrial is necessary is entitled to deference, as that court is in the best position to assess the circumstances … . Likewise, “the trial judge’s evaluation of the likelihood that the impartiality of one or more jurors may have been affected” will be accorded “the highest degree of respect” … .

Here, when the jury reconvened after the Sirois hearing, one juror (No. 10) had been excused, leaving 12 jurors, and the excusal of two more jurors (Nos. 7 and 9) was imminent, leaving only 10 jurors. Furthermore, although the mistrial was declared on the eighth business day after the presentation of evidence had commenced, only one partial day of evidence presentation had occurred, despite the Supreme Court’s initial estimate that the trial would take approximately two weeks (i.e., 10 business days). Matter of Whyte v Nassau County Dist. Attorney’s Off., 2016 NY Slip Op 03517, 2nd Dept 5-4-16

CRIMINAL LAW (MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL, SECOND TRIAL NOT PRECLUDED)/MISTRIAL (CRIMINAL LAW, MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL, SECOND TRIAL NOT PRECLUDED)/MANIFEST NECESSITY (CRIMINAL LAW, MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL, SECOND TRIAL NOT PRECLUDED)/DOUBLE JEOPARDY (MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL, SECOND TRIAL NOT PRECLUDED)

May 04, 2016

/ Education-School Law

DENIAL OF TEACHER’S APPEAL OF UNSATISFACTORY RATING ANNULLED.

The First Department, reversing Supreme Court, annulled a determination denying the petitioner-teacher's appeal of an unsatisfactory performance rating:

The record demonstrates deficiencies in the performance review process resulting in petitioner's unsatisfactory rating (U-Rating) for the 2012-2013 school year that were not merely technical but undermined the integrity and fairness of the process … . Petitioner was not given an adequate opportunity to improve her performance, and the observation reports did not suffice to alert her that her year-end rating was at risk.

Petitioner's account of the post-observation conference … , where the principal allegedly focused on the Annual Review, rather than perceived flaws in petitioner's lesson, was not refuted at the hearing and, when viewed alongside the other evidence presented, raises a factual issue as to whether the principal engineered the U-Rating to force petitioner from her job for refusing to go along with her policy of steering children into special education classes despite parental wishes to the contrary. Matter of Taylor v City of New York, 2016 NY Slip Op 03454, 1st Dept 5-3-16

EDUCATION-SCHOOL LAW (DENIAL OF APPEAL OF UNSATISFACTORY RATING OF TEACHER ANNULLED)/TEACHERS (DENIAL OF APPEAL OF UNSATISFACTORY RATING OF TEACHER ANNULLED)

May 03, 2016

/ Criminal Law

PENAL LAW PROVIDES A STATUTORY BASIS FOR PROSECUTING PHYSICIANS WHO PROVIDE AID IN DYING TO TERMINALLY ILL PATIENTS; THE STATUTES DO NOT VIOLATE THE NEW YORK CONSTITUTION.

The First Department, in a comprehensive opinion by Justice Mazzarelli, determined Penal Law 120.30 and 125.15 provide a valid statutory basis to prosecute licensed physicians who provide aid-in-dying to terminally ill patients and the application of the statutes does not violate the New York Constitution:

The word “suicide” has a straightforward meaning and a dictionary is hardly necessary to construe the thrust of Penal Law sections 120.30 and 125.15. It is traditionally defined as “the act or instance of taking one’s own life voluntarily and intentionally,” especially “by a person of years of discretion and of sound mind” (Merriam-Webster’s Collegiate Dictionary [11th ed 2003]). Whatever label one puts on the act that plaintiffs are asking us to permit, it unquestionably fits that literal description, since there is a direct causative link between the medication proposed to be administered by plaintiff physicians and their patients’ demise. Myers v Schneiderman, 2016 NY Slip Op 03457, 1st Dept 5-3-16

CRIMINAL LAW (PENAL LAW PROVIDES A STATUTORY BASIS FOR PROSECUTING PHYSICIANS WHO PROVE AID IN DYING TO TERMINALLY ILL PATIENTS; THE STATUTES DO NOT VIOLATE THE NEW YORK CONSTITUTION)/SUICIDE (PENAL LAW PROVIDES A STATUTORY BASIS FOR PROSECUTING PHYSICIANS WHO PROVE AID IN DYING TO TERMINALLY ILL PATIENTS; THE STATUTES DO NOT VIOLATE THE NEW YORK CONSTITUTION)/AID IN DYING (PENAL LAW PROVIDES A STATUTORY BASIS FOR PROSECUTING PHYSICIANS WHO PROVE AID IN DYING TO TERMINALLY ILL PATIENTS; THE STATUTES DO NOT VIOLATE THE NEW YORK CONSTITUTION)/PHYSICIANS (AID IN DYING, (PENAL LAW PROVIDES A STATUTORY BASIS FOR PROSECUTING PHYSICIANS WHO PROVE AID IN DYING TO TERMINALLY ILL PATIENTS; THE STATUTES DO NOT VIOLATE THE NEW YORK CONSTITUTION)

May 03, 2016

/ Criminal Law

FAILURE TO PRODUCE DEFENDANT FOR A PROBATION INTERVIEW FOR THE PRESENTENCE REPORT REQUIRED RESENTENCING.

The First Department determined the fact that defendant was not produced for a probation interview, and the resulting absence of a social history from the probation report, required resentencing:

Under all the circumstances, including the fact that this was a conviction after trial rather than a negotiated plea, there should be a new sentencing proceeding. Defendant was not produced for a probation interview, and the presentence report accordingly contains no social history. There is no indication in the record that defendant intentionally avoided the interview. Counsel brought the lack of an interview to the court's attention on the day of sentencing, and requested an adjournment for that purpose. Defendant's opportunity to make a statement at sentencing was not a sufficient substitute for an interview in this case, and his choice not to make such a statement does not warrant a different conclusion. People v Harleston, 2016 NY Slip Op 03428, 1st Dept 5-3-16

CRIMINAL LAW (FAILURE TO PRODUCE DEFENDANT FOR A PROBATION INTERVIEW REQUIRED RESENTENCING)/PRESENTENCE REPORT (FAILURE TO PRODUCE DEFENDANT FOR A PROBATION INTERVIEW REQUIRED RESENTENCING)

May 03, 2016

/ Corporation Law, Products Liability

PARENT CORPORATION NOT LIABLE, UNDER A STRICT PRODUCTS LIABILITY THEORY, FOR ASBESTOS-CONTAINING PRODUCTS MANUFACTURED AND DISTRIBUTED BY A WHOLLY OWNED SUBSIDIARY.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, reversing the Appellate Division, determined the products liability complaint against Ford USA, based upon asbestos brake linings manufactured and distributed by Ford UK, should have been dismissed. The Court of Appeals concluded Ford USA could only be held liable for a product manufactured and distributed by a wholly owned subsidiary by piercing the corporate veil, a theory unsupported by the facts alleged:

Ford USA was not a party within the distribution chain, nor can it be said that it actually placed the parts into the stream of commerce. Although plaintiff submitted evidence tending to show that Ford USA provided guidance to Ford UK in the design of certain tractor components, absent any evidence that Ford USA was in fact a manufacturer or seller of those components, Ford USA may not be held liable under a strict products liability theory … . * * *

Ford USA, as the parent corporation of Ford UK, may not be held derivatively liable to plaintiff under a theory of strict products liability unless Ford USA disregarded the separate identity of Ford UK and involved itself directly in that entity's affairs such that the corporate veil could be pieced … a conclusion that neither Supreme Court nor the Appellate Division reached in this instance. Finerty v Abex Corp., 2016 NY Slip Op 03411, CtApp 5-3-16

PRODUCTS LIABILITY (PARENT CORPORATION NOT LIABLE, UNDER A STRICT PRODUCTS LIABILITY THEORY, FOR ASBESTOS-CONTAINING PRODUCTS MANUFACTURED AND DISTRIBUTED BY A WHOLLY OWNED SUBSIDIARY)/CORPORATION LAW (PRODUCTS LIABILITY, PARENT CORPORATION NOT LIABLE, UNDER A STRICT PRODUCTS LIABILITY THEORY, FOR ASBESTOS-CONTAINING PRODUCTS MANUFACTURED AND DISTRIBUTED BY A WHOLLY OWNED SUBSIDIARY)/PIERCING THE CORPORATE VEIL (PRODUCTS LIABILITY, PARENT CORPORATION NOT LIABLE, UNDER A STRICT PRODUCTS LIABILITY THEORY, FOR ASBESTOS-CONTAINING PRODUCTS MANUFACTURED AND DISTRIBUTED BY A WHOLLY OWNED SUBSIDIARY)

May 03, 2016

Search Results

TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983.

NO-FAULT CARRIER DID NOT DEMONSTRATE LETTERS TO DEFENDANT SCHEDULING AN EXAMINATION UNDER OATH WERE TIMELY AND PROPERLY MAILED, CARRIER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED.

COMPLAINT STATED A CAUSE OF ACTION UNDER THE WHISTLEBLOWER STATUTE.

EVIDENCE SUPPORTED JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE, NEW TRIAL ORDERED.

PROVIDING AN UNREDACTED STATEMENT TO THE JURY BY MISTAKE DEPRIVED DEFENDANT OF A FAIR TRIAL AND REQUIRED REVERSAL.

MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL, SECOND TRIAL NOT PRECLUDED.

DENIAL OF TEACHER’S APPEAL OF UNSATISFACTORY RATING ANNULLED.

PENAL LAW PROVIDES A STATUTORY BASIS FOR PROSECUTING PHYSICIANS WHO PROVIDE AID IN DYING TO TERMINALLY ILL PATIENTS; THE STATUTES DO NOT VIOLATE THE NEW YORK CONSTITUTION.

FAILURE TO PRODUCE DEFENDANT FOR A PROBATION INTERVIEW FOR THE PRESENTENCE REPORT REQUIRED RESENTENCING.

PARENT CORPORATION NOT LIABLE, UNDER A STRICT PRODUCTS LIABILITY THEORY, FOR ASBESTOS-CONTAINING PRODUCTS MANUFACTURED AND DISTRIBUTED BY A WHOLLY OWNED SUBSIDIARY.

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