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Insufficient Foundation for Introduction of Grand Jury Testimony as Past Recollection Recorded—No Showing Recollection Was “Fairly Fresh” and Accurate at the Time of the Grand Jury Appearance

The First Department, in a full-fledged opinion by Justice Andrias (disagreeing at length with the rationale of the concurring opinion), reversed defendant’s perjury conviction because a witness’ (Woods’) grand jury testimony was wrongly admitted under the past recollection recorded hearsay exception.  Woods testified and remained available to testify when the hearsay exception was invoked.  Woods claimed that he did not know whether he had actual knowledge of past events or whether his memory stemmed from the many “prep” discussions he had had with the prosecutor over a six-year period. There was a six-year gap between the underlying events and Woods’ grand jury appearance. The First Department determined the prosecutor did not lay a sufficient foundation for admission of the grand jury testimony in that it was not shown that Woods’ recollection was “fairly fresh” at the time of the grand jury testimony:

Although there is no rigid rule as to how soon after the event the statement must have been made …, here the assurance of the accuracy of the recordation and its trustworthiness are diminished by the six- year gap between the underlying events, which concluded in 2000, and Woods’s grand jury testimony in 2006 * * * .

The People argue that Woods’s testimony is admissible despite the six-year gap because the trial court found that he was “feigning a lack of memory.” However, even if Woods’s lack of memory demonstrates that he was unable or unwilling to testify, it does not abrogate the People’s obligation to satisfy the foundational requirement that the recollection was fairly fresh when [*5]recorded or adopted.

Nor was Woods able to “presently testify that the record correctly represented his knowledge and recollection when made” … . Although Woods testified that he believed his grand jury testimony was truthful and accurate, he also testified that “[a]s I sit here right now, I can’t tell you if everything that’s in that Grand Jury that I said was … accurate”; that although he “wanted to be accurate” and “wouldn’t testify untruthfully,” he could not swear that “what’s in the … Grand Jury … was exactly what happened,” and that he could not “remember [if] … what I was talking to was my clear recollection or … was resulting from [my prep sessions] with people.” Thus, Woods’s testimony reflects that although he would not have purposefully lied to the grand jury, he could not presently state that his testimony accurately reflected his own recollection of the events in question at the time that he testified before it … . People V DiTommaso, 2015 NY Slip Op 01592, 1st Dept 2-14-15

 

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Failure to Make a Finding of Necessity Re: Restraining Defendant at Trial with a Stun Belt Is Not a Mode of Proceedings Error—Error Must Be Preserved by Objection (No Objection Here)

The Court of Appeals determined that the trial court’s failure to make a finding of necessity re: the defendant’s wearing a stun belt (a restraint device) at trial was not a mode of proceedings error.  Therefore the error must be preserved by objection.  Here the defendant consented to the restraint.  People v Cooke, 2015 NY Slip Op 01557, CtApp 2-24-15

 

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Pre-Litigation Statements Made by an Attorney (Here In a Cease and Desist Letter) Are Protected by Qualified, Not Absolute, Privilege—Such Statements Are Privileged If Not Motivated by Malice and If Pertinent to Anticipated Litigation

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined that statements made by an attorney prior to the commencement of litigation are protected by a qualified, not absolute privilege.  A qualified privilege will not protect statements motivated by malice.  Here statements made by an attorney in a cease and desist letter were made in good faith and were pertinent to anticipated litigation, and therefore protected by qualified privilege:

… “[A]s a matter of policy, the courts confine absolute privilege to a very few situations” … . We recognize that extending privileged status to communication made prior to anticipated litigation has the potential to be abused. Thus, applying an absolute privilege to statements made during a phase prior to litigation would be problematic and unnecessary to advance the goals of encouraging communication prior to the commencement of litigation. To ensure that such communications are afforded sufficient protection the privilege should be qualified. Rather than applying the general malice standard to this pre-litigation stage, the privilege should only be applied to statements pertinent to a good-faith anticipated litigation. This requirement ensures that privilege does not protect attorneys who are seeking to bully, harass, or intimidate their client’s adversaries by threatening baseless litigation or by asserting wholly unmeritorious claims, unsupported in law and fact, in violation of counsel’s ethical obligations … . Therefore, we hold that statements made prior to the commencement of an anticipated litigation are privileged, and that the privilege is lost where a defendant proves that the statements were not pertinent to a good-faith anticipated litigation … . Front Inc v Khalil, 2015 NY Slip Op 01554, CtApp 2-24-15

 

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Because the Landlord Engaged in Fraud, the Four-Year Rent-Overcharge Statute of Limitations Runs Back Four Years from When the Rent Overcharge Action Was Brought/Criteria for Collateral Estoppel Explained (Not Met Here)/Question of Fact Re: Piercing Corporate Veil

The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined that the four-year statute of limitations in rent-overcharge actions, where the landlord engaged in fraud, does not begin to run when the first overcharge payment is made, but rather extends back four years from when the overcharge action is brought.  Here there was evidence the landlord used a fictitious tenant and rent to justify the rent charged the tenants.  The landlord argued the tenants’ action was time-barred because it was brought more than four years after the first overcharge payment was made. In addition to the statute-of-limitations ruling, the Court of Appeals held the collateral estoppel doctrine was not correctly applied by the courts below and there was a question of fact whether the corporate veil should be pierced due to the principal’s control over the corporate-landlord and the principal’s fraudulent acts:

Julie Conason (Conason) and Geoffrey Bryant (Bryant) (collectively, tenants) are the rent-stabilized tenants of an apartment in a residential building in Manhattan. Megan Holding LLC (Megan) is the building’s owner and tenants’ landlord. … Conason asserted an overcharge claim against Megan in April 2009, almost five and one-half years after she occupied the apartment under a vacancy lease. The principal issue on this appeal is whether CPLR 213-a’s four-year statute of limitations completely bars this claim. Because of the unrefuted proof of fraud in the record, we conclude that section 213-a merely limits tenants’ recovery to those overcharges occurring during the four-year period immediately preceding Conason’s rent challenge, and that the lawful rent on the base date must be determined by using the default formula devised by the New York State Division of Housing and Community Renewal (DHCR or the agency) … . * * *

CPLR 213-a fixes a four-year statute of limitations for claims of residential rent overcharge; specifically, this provision states that

“[a]n action on a residential rent overcharge shall be commenced within four years of the first overcharge alleged and no determination of an overcharge and no award or calculation of an award of the amount of any overcharge may be based upon an overcharge having occurred more than four years before the action is commenced. This section shall preclude examination of the rental history of the housing accommodation prior to the four-year period immediately preceding the commencement of the action” (emphasis added) (CPLR 213-a; see also Rent Stabilization Law [Administrative Code of City of NY] § 26-516 [a] [2]; Rent Stabilization Code [9 NYCRR 2520.6 [f]; 2526.1 [a] [2]). * * *

Collateral estoppel comes into play when four conditions are fulfilled:

“(1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits” … . … . …

Civil Court’s findings of fraud are not entitled to preclusive effect because two of the four prerequisites for collateral estoppel are unmet: the issues in Civil Court (breach of the warranty of habitability) and Supreme Court (evidence of fraud sufficient to render the rent on the base date unreliable) are not identical (the first condition), and findings of fraud were not necessary to support the judgment entered on the April 8th order, which awarded tenants rent abatement on account of Megan’s breach of the warranty of habitability and directed Megan to remedy code violations (the fourth condition). Conason v Megan Holding LLC, 2015 NY Slip Op 01553, CtApp 2-24-15

 

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Property Occupied by Owner’s Relative Living Rent-Free Does Not Qualify as “Owner-Occupied” for Purpose of a Tax Assessment Review Pursuant to Real Property Tax Law 730

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissent, determined petitioners’ property did not qualify as “owner-occupied” within the meaning of Real Property Tax Law (RPTL) 730(1)(b)(i).  Petitioners, the owners of a single family home, did not live there but an owner’s mother lived there rent-free.  Petitioners filed a “small claims assessment review” petition seeking a tax assessment review (SCAR) under RPTL 730.  The Court of Appeals held that the meaning of “owner-occupied” could not be stretched to include a relative of an owner living rent free in the property:

The history of the SCAR program establishes that its purpose is to address the plight of small homeowners. Limiting access to the SCAR program to owners who occupy their property reasonably restricts the program to those most likely to have limited resources and who are most economically in need of the SCAR program’s expeditious and inexpensive procedures. Hence, interpreting “owner-occupied” to mean what it says, namely a property occupied by its owner, is not such a “literal and narrow interpretation[]” as to thwart the statutory purpose … . Matter of Manouel v Board of Assessors, 2015 NY Slip Op 01555, CtApp 2-24-15

 

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Findings in a Sanctions Proceeding Against an Attorney Should Not Have Been Given Collateral Estoppel Effect in an Attorney-Disciplinary Proceeding

The Court of Appeals reversed the Appellate Division finding that sanctions imposed upon an attorney, stemming from the attorney’s representation of a client in a civil matter, should not have been given collateral estoppel effect in an attorney-disciplinary proceeding:

This case is distinguishable from Matter of Levy (37 NY2d 279, 281 [1975]), where we determined that it was neither unreasonable nor unfair to impose collateral estoppel in a disciplinary proceeding after the attorney had been convicted of a criminal offense. There, we held that the attorney would not be permitted to relitigate the issue of guilt after he was convicted following a criminal trial, at “which rigorous safeguards were imposed to insure against an unjust conviction” … .

By contrast, the determination here was made on papers — without cross-examination or the opportunity to call witnesses. … While the issue of whether [the attorney] had made false statements in her written declaration concerning her prior knowledge of [an annuity] agreement may have been relevant, it was certainly not the focus of the hearing … . The cursory nature of the sanctions proceeding itself failed to provide a full and fair opportunity to litigate the issue. Matter of Dunn, 2015 NY Slip Op 01556, CtApp 2-24-15

 

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FOIL Request for Police “Intelligence Division” Documents Re: Surveillance of “Middle Eastern, South Asian or Muslim Persons” Properly Denied

The First Department determined the New York City Police Department (NYPD) properly denied a Freedom of Information Law (FOIL) request seeking documents generated by the Intelligence Division of the NYPD which related, in part, to broad categories, such as businesses “frequented” by Middle Eastern, South Asian or Muslim persons.  The court determined the requests were “overbroad,” exempt under the Public Officers Law (law enforcement privilege and danger to  life and safety), and would constitute an invasion of privacy.  With regard to  “danger to life and safety” and “invasion of privacy,” the court wrote:

The court also properly found that the requested disclosure “could endanger the life or safety of any person” (Public Officers Law § 87[2][f]). Granting the broadly worded request for a trove of NYPD Intelligence Division documents replete with sensitive information about the unit’s methods and operations, which could be publicly disseminated and potentially exploited by terrorists, would create “a possibility of endangerment” … . In addition, the court properly recognized that the requested records are exempt from FOIL because disclosure would constitute an unwarranted invasion of personal privacy … . Petitioners emphasize the public interest in scrutinizing whether NYPD engaged in improper surveillance or profiling of certain communities, but this is outweighed by the privacy interests at stake given the specific purpose of this counterterrorism police operation. The revelation that a certain person, business, or organization was the subject of counterterrorism-related surveillance would not only have the potential to be embarrassing or offensive, but could also be detrimental to the reputations or livelihoods of such persons or entities. Matter of Asian Am Legal Defense & Educ Fund v New York City Police Department, 2015 NY Slip OP 01559, 1st Dept 2-24-15

 

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Re: a Third-Party Settlement, Consent of Special Fund Required Before Carrier Entitled to Reimbursement from Special Fund

The First Department determined an employee must obtain the consent of the Special Fund (or judicial approval) before accepting a third-party settlement:

Workers’ Compensation Law § 29(5) permits an employee to settle a lawsuit arising out of the same accident as gave rise to his workers’ compensation claim for less than the amount of the compensation he has received only if the employee has obtained written consent to the settlement from the carrier or, in the alternative, judicial approval. We find that, just as the employee is required to obtain the carrier’s consent prior to settlement, the carrier is required to obtain the Special Funds Conservation Committee’s consent prior to the settlement where it is entitled to reimbursement by the Committee pursuant to Workers’ Compensation Law § 15(8)(d) … . Ace Fire Underwriters Inc Co v Special Funds Conservation Comm, 2015 NY Slip Op 01574, 1st Dept 2-24-15

 

 

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Maltreatment Finding Not Supported by Substantial Evidence

The Third Department determined substantial evidence did not support the Office of Children and Family Services finding of maltreatment.  Petitioner spanked the child for eating soap while petitioner was bathing the child.  Petitioner explained what had happened to the child’s day-care provider, who then reported the incident to the Central Register of Child Abuse and Maltreatment:

“‘At an administrative hearing to determine whether a report of child abuse or maltreatment is substantiated, the allegations in the report must be established by a fair preponderance of the evidence'” … . Specifically, “‘[t]o establish that maltreatment occurred, the agency must show that the child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the parent’s failure to exercise a minimum degree of care'” … . In our consideration of the underlying determination, “our focus is whether the determination is rational and supported by substantial evidence” … . * * *

A parent is “entitled to use reasonable physical force to promote discipline” … , however, the application of such force may not “exceed[] the threshold of reasonableness” … . Although a single instance of excessive corporal punishment can suffice for a finding of maltreatment …, here, the record lacks substantial evidence demonstrating that petitioner’s conduct “impaired or was in imminent danger of impairing [the child’s] physical, mental or emotional condition” … . Matter of Maurizio XX v New Y\ork State Off of Children and Family Services, 2015 NY Slip Op 01512, 3rd Dept 2-19-15

 

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Family Court Did Not Inform Respondent of His Rights and Did Not Conduct an Adequate Colloquy—PINS Adjudication Reversed

The Third Department reversed respondent’s adjudication as a PINS because Family Court did not advise respondent of his rights and the colloquy prior to Family Court’s acceptance of the consent finding was inadequate:

Family Court erred by failing to advise respondent of his rights. Pursuant to statute, at the initial appearance and at the commencement of any hearing concerning a PINS petition, Family Court must advise the respondent and his or her parent of the respondent’s rights to remain silent and to be represented by counsel of his or her choosing or an assigned attorney (see Family Ct Act § 741 [a]…). Here, the court did not mention these rights at the first appearance on the PINS petition, at which time the court accepted respondent’s consent to a PINS finding, nor at the dispositional hearing. The court’s failure to advise respondent of these rights constitutes reversible error … . Additionally, the court’s colloquy prior to accepting that consent finding was inadequate; respondent merely answered “[y]es” when asked if he had a basic understanding of the proceeding and if he consented to a PINS finding, without any further discussion. To ensure that a PINS admission is knowingly and intelligently entered into, in a proper colloquy “[t]he respondent should at least state and admit the precise act, or acts, which constitutes the admission, and should be made aware on the record of the consequences, the dispositional alternatives, and the waiver of specific rights,” as well as give an assurance of the lack of coercion and that he or she consulted with counsel (Merril Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 741 at 98…). Due to the inadequate colloquy and lack of advisement of rights, reversal is required, respondent’s adjudication as a PINS is vacated and the matter is returned to the preadmission stage. Matter of Aaron UU …, 2015 NY Slip Op 01505, 3rd Dept 2-19-15

 

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