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Patient Held In a Mental Health Facility After the Court Order Authorizing Confinement Had Expired Was Entitled to Habeas Corpus Relief Pursuant to CPLR Article 70

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a dissent, reversing the appellate division, determined that a patient, who was held in a mental health facility pursuant to a court order which the facility neglected to extend, was entitled to release pursuant to a CPLR article 70 habeas corpus proceeding. The hospital unsuccessfully argued that the only habeas-corpus relief available to the patient was pursuant to Mental Hygiene Law 33.15 which required an inquiry into the patient’s mental state:

CPLR 7001 provides that article 70 applies to common-law and statutory writs of habeas corpus “[e]xcept as otherwise prescribed by statute” (CPLR 7001). However, nothing in the plain language of Mental Hygiene Law § 33.15 purports to limit the availability of the common-law writ in Mental Hygiene Law proceedings. Rather, section 33.15 enhances the efficacy of the writ of habeas corpus, as our case law dictates, and thereby ensures that patients are not committed and retained without due process of law. That is, Mental Hygiene Law § 33.15 allows patients to seek a writ of habeas corpus when they are being held pursuant to a court order but, nevertheless, believe they have sufficiently recovered from their mental illness so that their continued retention is unwarranted; in such cases, determining the legality of their retention would require an inquiry into their mental state. On the other hand, patients whose detention is otherwise unauthorized may proceed under the habeas corpus provisions of CPLR article 70 since the legality of their detention can be determined on the basis of, for example, whether the appropriate procedures have been followed, without the need for a hearing into their mental state.  People ex rel. DeLia v Munsey, 2015 NY Slip Op 07697, CtApp 10-22-15

 

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Records of a Police Investigation of a Police Officer Who Has Been Terminated Are Not “Personnel Records” Subject to Exemption from Disclosure Pursuant to the “Personnel Records” Provision of the Freedom of Information Law (FOIL)

The Third Department determined that the personnel records associated with the investigation of an off-duty police officer’s involvement in a hit and run accident were generally exempt from disclosure pursuant to the Freedom of Information Law (FOIL) (as police “personnel records”). However, the investigation continued after the officer’s employment was terminated. The records of the post-termination investigation were not “personnel records” and, therefore, were not exempt from disclosure under the “personnel records” provision:

As is relevant here, Civil Rights Law § 50-a (1) exempts from disclosure the “personnel records” of police officers that are “used to evaluate performance toward continued employment or promotion.” …

Proof that information was generated for the purpose of assessing an employee’s alleged misconduct brings that information within the protection of Civil Rights Law § 50-a (1) … . This does not end our inquiry, however, because uncontested evidence established that respondent’s investigation of Beardsley continued after he had resigned as an employee of respondent. We agree with petitioners that police departments who investigate persons who are no longer their employees are not conducting investigations of “personnel” within the meaning of Civil Rights Law § 50-a (1). The plain meaning of the word personnel identifies individuals with some current employment relationship with an organization. This meaning of personnel is further confirmed by the statute, as individuals who are not current employees cannot be considered for either “continued employment or promotion” (Civil Rights Law § 50-a [1]). Accordingly, Supreme Court erred in finding that respondent met its burden of establishing that the materials resulting from its investigation after Beardsley had resigned were for the purpose of assessing his continued employment or promotion and that, as a result, Civil Rights Law § 50-a (1) provided confidentiality to such materials. Matter of Hearst Corp. v New York State Police, 2015 NY Slip Op 07729, 3rd Dept 10-22-15

 

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Pregnant Woman Not Liable Under the Reckless Manslaughter Statute for Death of Baby Injured in Utero But Subsequently Delivered Alive by Cesarean Section

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over an extensive dissent, determined a pregnant women could not be convicted of reckless manslaughter for the death of her baby following a head-on collision. Defendant was in the wrong lane and struck an on-coming car, killing the two occupants. Defendant consented to a cesarean section because the baby was in distress (due to the accident). The baby was born alive but subsequently died. Defendant was convicted of manslaughter for recklessly causing the baby’s death. The Court of Appeals reversed noting that, had the baby died in utero, the baby would not have met the definition of “person” in the manslaughter statute:

Had the legislature intended to include pregnant women in the class of individuals who may be guilty of manslaughter in the second degree for reckless acts committed while pregnant, resulting in the eventual death of their child, it could clearly have done so. Moreover, had defendant’s fetus died in utero, then, plainly, defendant could not have been prosecuted under the manslaughter statute because the fetus would not have fallen under the definition of a “person” (Penal Law § 125.05 [1]; …). * * *

The imposition of criminal liability upon pregnant women for acts committed against a fetus that is later born and subsequently dies as a result of injuries sustained while in utero should be clearly defined by the legislature, not the courts. It should also not be left to the whim of the prosecutor. Conceivably, one could find it “reckless” for a pregnant woman to disregard her obstetrician’s specific orders concerning bed rest; take prescription and/or illicit drugs; shovel a walkway; engage in a contact sport; carry groceries; or disregard dietary restrictions. Such conduct, if it resulted in premature birth and subsequent death of the child, could result in criminal liability for the mother. At present, such conduct, if it caused a stillbirth, would not result in criminal prosecution of the mother if the fetus died in utero. Any change in the law with regard to such matters would be within the province of the legislature. People v Jorgensen, 2015 NY Slip Op 07699, CtApp 10-22-15

 

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Elderly Patient’s Fall from an Examining Table Implicated a Duty of Care Which Takes Into Account Patient’s Infirmities/Elderly and Infirm Patient’s Fall from Examining Table Sounds in Medical Malpractice, Not Ordinary Negligence

The Third Department, in a full-fledged opinion by Justice Garry, determined a new trial was necessary in a case stemming from 81-year-old plaintiff’s decedent’s fall from an examining table in a doctor’s office. The Third Department found that the trial judge fashioned a jury instruction which erroneously included premises liability principles and erroneously failed to take into account the particular infirmities of plaintiff’s decedent. In addition the trial court erroneously determined the case sounded in negligence, as opposed to medical malpractice:

Recovery in a premises liability action is predicated on “ownership, occupancy, control or special use of [a] property” where a dangerous or defective condition exists … . Here, decedent neither alleged that [defendant’s] liability arose from its ownership of dangerous or defective premises nor that any defects or dangerous conditions existed … . Instead, decedent asserted that [defendant] was liable for the acts and omissions of its employees in failing to recognize the need for, or provide decedent with, adequate assistance and supervision — an analysis unrelated to the physical condition of the medical office or the legal principles underlying premises liability. Supreme Court’s attempt to combine the two concepts resulted in an instruction that improperly advised the jury that decedent was required to prove that the premises were unsafe. Moreover, the instruction confusingly directed the jury to evaluate the actions of the medical assistant twice, first by determining whether her actions were “reasonably safe” and then — without clarifying the distinction, if there is one — whether those same actions were negligent.

The modified instruction further misstated the threshold issue of the applicable duty of care. “Although the existence of a duty is a question of law to be determined by the courts, the factfinder must be instructed on the nature and scope of such duty so as to ascertain any breach thereof” … . The modified instruction used the language of PJI 2:90 to charge the jury that “[t]he possessor of a building has a duty to use reasonable care to keep the premises in a reasonably safe condition for the protection of all persons whose presence is reasonably foreseeable,” followed by new language advising the jury that “[a] facility also has a duty to exercise ordinary and reasonable care to ensure that no unnecessary harm befalls a patient.” The first of the two statements pertains to premises liability and, as previously discussed, is inapplicable here. The second statement, although not inapplicable to a negligence analysis, is incomplete. It is well settled that a medical facility used by persons who may be ill, disabled or otherwise vulnerable “ha[s] a duty to exercise reasonable care and diligence in safeguarding a patient, based in part on the capacity of the patient to provide for his [or her] own safety” … . “The degree of reasonable care is measured by the physical and mental infirmities of the patient[] as the [facility’s] officials and employees know them” … . * * *

The assessment of a patient’s risk of falling as a result of his or her medical condition, and the patient’s consequent need for assistance, protective equipment or supervision, are medical determinations that sound in malpractice … . Likewise, whether Horizon breached applicable standards of care for medical offices in supervising and assisting decedent in view of her medical condition “necessitates a comparison to the standard of care customarily exercised by [comparable medical facilities] . . . [that] cannot be determined without a full appreciation and understanding of the operational demands and practices of [such facilities]” and raises issues of malpractice rather than negligence … .

Expert testimony is a necessary part of a malpractice action, as the plaintiff is required to establish the relevant professional standard of care … . This case hinges upon a malpractice standard. Martuscello v Jensen, 2015 NY Slip Op 07711, 3rd Dept 10-22-15

 

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Police Were Justified In Questioning Defendant’s Presence In Lobby of an Apartment Building Enrolled in the “Trespass Affidavit Program (TAP)”

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over an extensive dissenting opinion by Judge Rivera (in which Judge Lippman concurred), determined a police officer had the right to question defendant about his presence in the lobby of an apartment building. After defendant stated he did not live in the building and could not identify a resident who invited him there, he was arrested for trespass and a razor blade was seized from his pocket, The building was enrolled in the “trespass affidavit program (TAP)” which was described as a solicitation of police assistance for dealing with trespassers. The police officers entered the building to conduct a floor by floor search for trespassers:

Our analysis begins with the points “that whether police conduct in any particular case conforms to De Bour is a mixed question of law and fact,” and that, in such circumstances, “our review is limited to whether there is evidence in the record supporting the lower courts’ determinations” … . On the merits, our analysis proceeds under the first of the four levels of De Bour, which sets a low bar for an initial encounter: it “permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality” … .

Here the record reflects that the encounter occurred in a private space restricted by signage and a lock, and that police assistance in combating trespassing had been sought through enrollment in the TAP. Put simply, the coupling of defendant’s presence in the subject building with the private and protected nature of that location supports the intrusion giving rise to what became the seizure in question. We conclude that there is record support for the determination that the police had an objective credible reason to request information from defendant … .

In so concluding we note that the police patrol at issue here was intended in part to combat trespassing, that is, “knowingly enter[ing] or remain[ing] unlawfully in or upon a premises” (Penal Law § 140.05), that the building at issue was enrolled in the TAP for the purpose of addressing that problem, and that this branch of the TAP is rooted in tenant protection throughout Manhattan. Under these circumstances a police officer could have identified a trespasser only by requesting information. People v Barksdale, 2015 NY Slip Op 07694, CtApp 10-22-15

 

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“For Cause” Challenge to Juror Who Socialized with District Attorney Should Have Been Granted—Concept of “Implied Bias” Explained

The Third Department determined a new trial was necessary because of the denial of a “for cause” challenge to a juror who socialized with the district attorney (the case was tried by an assistant district attorney). The court explained the concept of “implied bias” which is not easily “cured:”

A statement by a potential juror suggesting a possible bias can be cured, and the juror not excused, if the juror “provide[s] ‘unequivocal assurance that [he or she] can set aside any bias and render an impartial verdict based on the evidence'” … . However, where, as here, the challenge for cause involves a juror’s relationship with a trial participant, a so-called “implied bias” may be implicated which “requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect [his or] her ability to be fair and impartial” … . Of course, “[n]ot all relationships . . . require disqualification . . . [and] [t]he frequency of contact and nature of the parties’ relationship are to be considered in determining whether disqualification is necessary” … . As a practical matter, “the trial court should lean toward disqualifying a prospective juror of dubious impartiality” … .

Here, during voir dire, juror no. 3372 stated that her family was “good friends” with the family of the District Attorney. She added that she socialized with the District Attorney, including having him and his wife as dinner guests at her home, and she and her husband had dined as guests at the District Attorney’s home. County Court nonetheless denied defendant’s challenge for cause as to such juror. People v Bedard, 2015 NY Slip Op 07703, 3rd Dept 10-22-15

 

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Attempt to Violate a Prison Rule Is Sufficient to Find a Violation/Intent Is Irrelevant

The Court of Appeals affirmed the finding that the petitioner-inmate had violated the prison rule prohibiting the possession of loose stamps in the prison library. Petitioner argued he did not violate the rule because he was found in possession of the loose stamps outside of the library and he did not intend to violate the rule . However, the Court of Appeals determined an attempt to violate a prison rule is sufficient (petitioner acknowledged he was on his way to the library when the stamps were found) and the petitioner’s intent was not an element of the offense:

Prison rules state explicitly that inmates who attempt “to violate institutional rules of conduct . . . [are] punishable to the same degree as violators of such rules . . . . [and] may be cited for attempts . . . whether or not the text of an actual rule contains such term[]” (7 NYCRR 270.3 [b]). Petitioner testified during the disciplinary hearing that he was carrying the loose stamps while on his way to the law library. Thus, by his own admission, he is guilty of an attempt to violate the provision, and as a consequence Rule 113.22. Furthermore, whether petitioner was aware that he was in violation of a restriction on loose stamps is irrelevant because Rule 113.22 applies regardless of the inmate’s intent. Matter of Bottom v Annucci, 2015 NY Slip Op 07696, CtApp 10-22-15

 

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Dismissal of Criminal Case Did Not Collaterally Estop Civil Case Based Upon the Same Forged-Deed Allegation/No Statute of Limitations Applies to Case Based Upon Forged-Deed Allegation

In an action based upon the allegation the signature on a deed was forged, the Third Department determined no statute of limitations applies to forged deeds which are void ab initio and the dismissal of a Spanish criminal case based upon the forged-deed allegation did not collaterally estop the New York civil action:

We agree with plaintiffs that they are not collaterally estopped from maintaining this action. It is well established that “dismissal of a criminal charge . . . does not generally constitute collateral estoppel in relation to a civil action because of the difference in the burden of proof to establish the factual issues” … . Indeed, the Spanish court dismissed the Spanish criminal action “without prejudice,” expressly permitting the matter to “be referred to civil jurisdiction.” Inasmuch as this dismissal of the Spanish criminal action did not conclusively establish whether the signature was forged, and did not preclude plaintiffs from commencing a similar civil action, defendants have failed to satisfy their burden of proving “that this identical issue was necessarily decided in the [prior action] and is conclusive in the [present] action” … .

Nor should plaintiffs’ action have been deemed time-barred by the statute of limitations. While the limitations period for a cause of action sounding in fraud is the greater of six years after the cause of action accrued or two years after it could have been discovered with reasonable diligence (see CPLR 213 [8]), the Court of Appeals has recently held that this period does not apply when the particular species of fraud alleged is the forgery of a deed. The Court found that, unlike other fraud-based causes of action, “a claim against a forged deed is not subject to a statute of limitations defense” because of “the clarity of our law that a forged deed is void ab initio, and that it is a document without legal capacity to have any effect on ownership rights” … . Mazo v Mazo, 2015 NY Slip Op 07721, 3rd Dept 10-22-15

 

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Under the Circumstances Plaintiff Could Not Strictly Comply with the Whistleblower Statute by Complaining to the Very People Involved in the Wrongful Conduct—Plaintiff Entitled to Back Pay and Prejudgment Interest for Retaliatory Demotion

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined that plaintiff had complied with the whistleblower statute and was entitled to prejudgment interest on his award for retaliatory demotion. The statute, Civil Service Law  75-b, requires that any allegedly wrongful act first be reported to the “appointing authority.” However, in this case, the “appointing authority” were the very people plaintiff alleged committed the wrongful act. In this circumstance plaintiff’s complaints to his immediate superiors and then to the inspector general were deemed to comply with the statute. The Court of Appeals also reasoned that, because the purpose of the whistleblower statute is to make whistleblowers whole, the award of prejudgment interest under the statute is proper:

Under these particular circumstances, strict compliance with the reporting requirements of Civil Service Law § 75-b would not serve the purpose of the statute. Rather, courts should use their discretion in determining whether the overall actions of the plaintiff constitute a good faith effort to report the misconduct. In cases such as this — where the appointing authority is the one engaging in the alleged misconduct — an employee’s good faith effort to report the misconduct should be evaluated with attention to the employee’s practical inability to report to the appointing authority. The “good faith” provision in the statute affords courts the discretion to determine whether a plaintiff has met its requirements and appears to adequately account for situations like the one presented here. * * *

Here, an overall view of the comprehensive package of remedies listed in Labor Law § 740 (5), including undefined “compensation” and “remuneration,” demonstrates that the Legislature sought to make a whistleblowing plaintiff whole, which would include an award of prejudgment interest.  … [B]ecause the remedies listed in the statute appear to seek to make a whistleblowing plaintiff whole, awarding prejudgment interest would serve that purpose. By demoting plaintiff rather than awarding him a planned promotion and significant raise, defendants deprived plaintiff of access to what would have been a higher salary for a period of over 10 years. Awarding back pay with interest would serve to make plaintiff whole; thus, he is entitled to such a recovery. Tipaldo v Lynn, 2015 NY Slip Op 07698, CtApp 10-22-15

 

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SAFE Act Restrictions on Ownership of Assault Rifles and Ammunition Feeding Devices Constitutional

The Third Department, in a full-fledged opinion by Justice Devine, determined that the restrictions on ownership of assault rifles and ammunition feeding devices in the “SAFE Act” furthered the substantial, compelling, governmental interests in public safety and crime prevention and, therefore, are constitutional:

We will accept, for purposes of discussion, that the SAFE Act substantially burdens the right to keep and bear arms so as to subject it to Second Amendment scrutiny … . We will also assume, although it is debatable, that the weapons and feeding devices addressed by the SAFE Act are not the type of dangerous and exotic weaponry that merit no Second Amendment protection … . The question accordingly becomes whether the challenged provisions survive intermediate scrutiny, namely, whether they “bear[] a substantial relationship to the achievement of an important governmental objective” … .

With regard to the objective pursued, “New York has substantial, indeed compelling, governmental interests in public safety and crime prevention” … . [Plaintiffs] provided no proof to call the well-established premise behind the challenged provisions into question, namely, that the governmental interest in public safety is substantially furthered by reducing access to weapons designed to quickly fire significant amounts of ammunition and the ammunition feeding devices required to hold that ammunition … . Thus, we agree with Supreme Court that “[t]he core prohibitions . . . of assault weapons and large-capacity magazines [contained in the SAFE Act] do not violate the Second Amendment”… . Schulz v State of New York Exec., Andrew Cuomo, Governor, 2015 NY Slip Op 07728, 3rd Dept 10-22-15

 

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