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New York State Can Issue a License to Practice Law to an Undocumented Immigrant Authorized to Be In the United States by the Deferred Action for Childhood Arrivals Policy of the Federal Government

The Second Department, in an extensive, full-fledged opinion (per curiam), dealing with a question of first impression, determined the State of New York could issue a license to practice law to an undocumented immigrant who was qualified for admission to the bar.  The court explained the issues before it as follows:

We are called upon to determine whether an undocumented immigrant, who is authorized to be present in the United States under the auspices of the Deferred Action for Childhood Arrivals policy of the federal government, and who meets the statutory eligibility requirements and the rules of court governing admission to the practice of law in the State of New York, may satisfy the standard of good character and general fitness necessary for admission. We are further called upon to determine whether such an individual is barred from admission to the practice of law by a federal statute, 8 USC § 1621, which generally prohibits the issuance of state professional licenses to undocumented immigrants unless an individual state has enacted legislation affirmatively authorizing the issuance of such licenses. This presents an issue of first impression in New York and, in terms of the applicability of 8 USC § 1621 and its compatibility with the Tenth Amendment of the United States Constitution, an issue of first impression nationwide.

We hold that a narrow reading of 8 USC § 1621(d), so as to require a state legislative enactment to be the sole mechanism by which the State of New York exercises its authority granted in 8 USC § 1621(d) to opt out of the restrictions on the issuance of licenses imposed by 8 USC § 1621(a), unconstitutionally infringes on the sovereign authority of the state to divide power among its three coequal branches of government. Further, we hold, in light of this state’s allocation of authority to the judiciary to regulate the granting of professional licenses to practice law (see Judiciary Law § 53[1]), that the judiciary may exercise its authority as the state sovereign to opt out of the restrictions imposed by section 1621(a) to the limited extent that those restrictions apply to the admission of attorneys to the practice of law in the State of New York. Accordingly, we answer the first question in the affirmative and the second question in the negative. Matter of Application of Cesar Adrian Vargas for Admission to the Bar of the State of New York., 2015 NY Slip Op 04657, 2nd Dept 6-3-15

 

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Plaintiffs Should Have Been Allowed to Amend the Pleadings to Conform to the Proof at Trial—No Prejudice to Defendant

The Second Department determined plaintiffs should have been allowed to amend the pleadings to conform to the proof at trial. The complaint alleged breach of contract and negligence re: the installation of foam insulation. The contract called for the installation to conform to the manufacturer’s specifications.  The negligence cause of action alleged the work was not done in a good and workmanlike manner. Because defendant would not have been prejudiced, Supreme Court should have allowed plaintiffs to amend the breach of contract cause of action to allege the work was not done in a good and workmanlike manner.  Plaintiffs’ motion pursuant to CPLR 4404(b) for judgment in their favor on the breach of contract cause of action should have been granted. The negligence cause of action, which essentially duplicated the breach of contract cause of action, should have been dismissed. With respect the post-trial motion to amend the pleadings, the Second Department wrote:

… [T]he Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs’ motion which was for leave to amend the pleadings to conform to the evidence adduced at trial. “Whether to permit a party to amend a pleading is generally a matter of discretion for the trial court and, on review, the Appellate Division” … . Absent prejudice, courts are free, pursuant to CPLR 3025(c), to permit the amendment of pleadings, even after trial … . Leave shall be freely given upon such terms as may be just (see CPLR 3025[b]). “This favorable treatment applies even if the amendment substantially alters the theory of recovery” … .

Here, the proposed amendment to the breach of contract cause of action does not alter the theory of recovery. The complaint alleged that the defendant failed to perform the work in a good and workmanlike manner, albeit in the context of the cause of action alleging negligence. Furthermore, the defendant, who has the burden of establishing prejudice …, failed to assert that it would be prejudiced by permitting the plaintiffs to amend the complaint to conform to the evidence adduced at trial that the work was not performed in a good and workmanlike manner … . Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 2015 NY Slip Op 04615, 2nd Dept 6-3-15

 

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Cumulative Effect of Several “Suggestive” Factors Rendered the Show-Up Identification Inadmissible

The First Department, in a full-fledged opinion by Justice Gische, over a dissent, determined the show-up identification of the defendants was unduly suggestive and should have been suppressed. While none of the “suggestive” factors alone would have been sufficient to invalidate the identification, the cumulative effect of all the factors rendered the identification inadmissible. The defendants were handcuffed and standing together in a well-lit garage, surrounded by police officers.  The driver of the police car carrying the complainant, who had been assaulted an hour before by “three or four black teens,” shown the car’s headlights and “takedown” lights on the defendants. The defendants, none of whom were “teens,” and one of whom was light-skinned, were covered in soot. The complainant looked at the defendants through the police car’s mesh divider and windshield.  In addition to noting there were no “exigent circumstances” mandating the show-up procedure, the court described the factors which cumulatively rendered the show-up inadmissble at trial as follows:

Here, the three suspects were standing side by side after the complainant had described her attack by multiple attackers. Defendants were flanked by as many as eight officers and, apart from the complainant, they were the only civilians present. Defendants were visibly restrained. This was obvious, not only from the fact that their hands were behind their backs, but also from the fact that defendant Santiago, who had visible physical injuries to his face indicative of a recent scuffle, was being physically restrained by one of the officers as the complainant made her identification. Defendants were covered in soot, such that it affected their appearance, particularly as to skin color. Previously, the complainant had described her assailants’ “black” skin color as a prominent identifying feature, along with their ages. As the complainant was driven from the precinct to the location of the showup identification, she was told that she would be looking at people, and that she should tell the officers if she had seen them before. When defendants were shown to the complainant, they were illuminated by the patrol car’s headlights and takedown flood lights, even though the garage lighting itself was good.

We recognize that some of these factors, either alone or even in combination do not necessarily make a showup identification unduly suggestive. A showup identification may be acceptable, even where a defendant is handcuffed and guarded by police officers when shown to the complainant … . Nor is the fact that remarks are made to a complainant before being taken to a lineup itself a basis for a prohibited showup identification … . This is because a person of ordinary intelligence would realize that the police are showing them someone suspected of having committed a crime … . Even shining lights on a suspect is not by itself unduly suggestive … . It is the cumulative effect of what otherwise might be individually permissible that makes this particular showup identification unduly suggestive. The showup was clearly beyond the high water mark set forth by the Court of Appeals… . People v Cruz, 2015 NY Slip Op 04597, 1st Dept 6-2-15

 

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Res Ipsa Locquitur Doctrine Not Available Where Multiple Defendants Did Not Have Concurrent Control Over the Alleged Malpractice, i.e., Leaving Surgical Packing in the Wound

The Second Department determined the hospital defendants and the defendant rehabilitation facility (Parker) were entitled to summary judgment in a case where surgical packing was left in the wound.  The surgeon was not an employee of the hospital and there were no allegations hospital staff negligently followed the surgeons instructions.  The court explained why the doctrine of res ipsa loquitur did not apply to the hospital defendants and the defendant rehabilitation facility:

The plaintiff relies on the doctrine of res ipsa loquitur to relieve him of the burden of proving which defendant had been negligent and when. Although res ipsa loquitur may be utilized where more than one defendant may have been in control …, the responsible defendants must share exclusive control of the instrumentality causing injury. Here, neither the hospital defendants nor Parker were acting jointly or concurrently with each other. They did not have concurrent control of the surgical packing that allegedly caused the injury. The treatment here was performed by different entities at different times in different locations. This is not a situation where several physicians participated in a single surgical procedure and, as a result, have the burden to “explain their actions and conduct in the operating room wherein plaintiff was injured” … . Accordingly, under these circumstances, the plaintiff’s reliance upon the doctrine of res ipsa loquitur in opposition to the motion is misplaced, inasmuch as he failed to raise a triable issue of fact as to the applicability of the requisite elements of the doctrine … . Buesko v Gordon, 2014 NY Slip Op 03969, 2nd Dept 6-4-14

 

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As a Contingent Remainder of the Subject Trust, the “Charitable Trust” Had the Right to Intervene in a Proceeding to Remove and Replace the Trustee of the Subject Trust

The Second Department determined that the contingent remainder, Charitable Trust, of the subject trust had standing to intervene in a proceeding which removed the father and appointed the mother trustee of the subject trust:

…[T]he Charitable Trust, as a contingent remainder of the subject trust, has standing to intervene in this proceeding …, and a real and substantial interest in the outcome of the proceeding …. Thus, the Supreme Court should have granted it leave to intervene as a party respondent (see CPLR 1012[a];[2], [3]…). Upon granting the Charitable Trust leave to intervene as a party respondent, the Supreme Court should have granted that branch of the motion which was to vacate the order …removing the father as the trustee of the subject trust and appointing the mother as successor trustee of the subject trust, and thereupon directed that the petition be amended by adding the Charitable Trust as a party respondent and that the Charitable Trust be permitted to serve a verified answer and counterclaims if it be so advised. Matter of Ramm v Allen, 2014 NY Slip Op 04015, 2nd Dept 6-4-14

 

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Sole Officer of Dissolved Corporation Personally Liable for Post-Dissolution Debts Attributed to “New Business”

The Third Department determined the sole officer of a corporation dissolved in 1997 was personally liable for the post-dissolution debts incurred for the purchase of fuel. The court explained the relevant law:

Business Corporation Law § 1005 (a) (1) provides, in relevant part, that, following dissolution, “[t]he corporation shall carry on no business except for the purpose of winding up its affairs.” Winding up, in turn, is defined as “the performance of acts directed toward the liquidation of the corporation, including the collection and sale of corporate assets” (…see Business Corporation Law § 1005 [a] [2]…). Notably, a dissolved corporation is precluded from engaging in new business … and “has no existence, either de jure or de facto, except for a limited de jure existence for the sole purpose of winding up its affairs” … . As a result, “[a] person who purports to act on behalf of a dissolved corporation is personally responsible for the obligations incurred” … . Long Oil Heat, Inc. v Polsinelli, 2015 NY Slip Op 04542, 3rd Dept 5-28-15

 

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City Was Not Required to Consider the Petitioners’ Preferred Scenario for Development—City Was Required Only to Consider the “No Action” Alternative

The First Department determined the city (NYC) took the requisite “hard look” at a development project and provided a “reasoned elaboration” of the basis for its approval of the project. The court noted that, although the City Environmental Quality Review (CEQR) requires that the Final Environmental Impact Statement (FEIS) include an analysis of a “No Action” alternative (an analysis based on the assumption the project will not be constructed), the CEQR does not require the FEIS to consider the petitioners’ preferred alternative development scenario. Matter of Residents for Reasonable Dev. v City of New York, 2015 NY Slip Op 04560, 1st Dept 5-28-15

 

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Documents Which Reveal the Identity of Sex Offense Victims Are Categorically Excluded from Disclosure Under the Civil Rights Law and Public Officers Law (Even If the Identifying Information Can Be Redacted)

The Third Department determined petitioner’s request for evidence held by the district attorney’s office was properly denied.  The requested evidence consisted of chat logs and the contents of computers which identified the victims of sex offenses. The court noted that, even if the identification could be reacted, the documents are categorically excluded from disclosure under the Civil Rights Law and Public Officers Law.  Matter of MacKenzie v Seiden, 2015 NY Slip Op 04537, 3rd Dept 5-28-15

 

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Contract Attorney Was an Employee Despite “Independent Contractor” Designation in a Written Employment Agreement

The Third Department determined a “contract attorney” hired by an attorney (Brody) for document-review in a class-action case was an employee entitled to unemployment insurance benefits, despite claimant’s designation as an independent contractor in a written agreement:

Whether an employer-employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence” … . As here, “in cases where the rendering of professional services is involved, an employment relationship can be found where there is substantial evidence of control over important aspects of the services performed other than results or means” … .

Here, claimant was paid an agreed-upon hourly rate and required to work at least 45 hours a week, but not more than 50. He was also given specified hours each day to report to his assigned work station, he was required to take a daily unpaid 30 minute lunch break and was occasionally required to report to work on weekends. He was allowed to take unpaid days off, provided that he requested the time off in advance. He received daily assignments from an associate attorney of Brody, who supervised his work. In addition to document review, claimant also assisted in the litigation by providing Brody with written memoranda summarizing deposition testimony, work that included claimant’s attendance at meetings with attorneys from other firms involved in the litigation. In our view, substantial evidence supports the Board’s decision that Brody retained sufficient overall control of claimant’s services to establish an employment relationship, despite evidence in the record that could support a contrary conclusion … . The fact that claimant signed a written agreement designating him as an independent contractor does not compel a different result … . Matter of Singhal (Commissioner of Labor), 2015 NY Slip Op 04550, 3rd Dept 5-28-15

 

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Election Poll Worker Not an Employee—Not Entitled to Unemployment Insurance Benefits

The Third Department determined an election poll worker was not an employee entitled to unemployment insurance benefits:

“An employer-employee relationship exists when the evidence shows that the employer exercises control over the results produced or the means used to achieve the results [although] control over the means [used to achieve those results] is the more important factor to be considered” … .

Here, claimant testified that she responded affirmatively to a card received in the mail from the Board of Elections asking if she was available to work on election day; she thereafter received training and was assigned to a polling place, where she worked as a poll worker or inspector on election day. Her duties included setting up and overseeing tables, signing in voters, showing them how to use the voting machines, keeping track of voting cards and printing a tally of votes at the end of the day, which were reported to the Board of Elections.

Poll clerks, like election inspectors, are appointed, trained, compensated and perform duties as mandated by statute and overseen by the New York State Board of Elections (see Election Law §§ 3-400, 3-402, 3-404, 3-412, 3-420; see also Election Law § 3-102). In the City of New York, they are compensated at a per diem rate established by the Mayor (see Election Law § 3-420 [1]). While, pursuant to those governing statutes, the Board of Elections may have exercised some supervision over the poll workers and their training, this is insufficient, by itself, to establish an employer-employee relationship, and the record is devoid of any proof that any such supervision exercised exceeded that required by law, or that additional duties or requirements were imposed beyond those provided by statute … . Matter of Chorekchan (New York City Bd. of Elections–Commissioner of Labor), 2015 NY Slip Op 04552, 3rd Dept 5-28-15

 

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