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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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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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Defendant’s Having Unprotected Sex with Partner After Defendant’s HIV-Positive Diagnosis Did Not Constitute “Depraved Indifference”

The Court of Appeals determined that the “depraved indifference” standard in the first degree reckless endangerment statute was not met by the facts.  Defendant had (consensual) unprotected sex with his partner after the defendant was diagnosed as HIV positive.  The defendant’s partner was subsequently diagnosed as HIV positive:

Depraved indifference is a culpable mental state which means the same thing in the murder and reckless endangerment statutes … . As we explained in People v Suarez (6 NY3d 202, 212 [2005]), “[a] defendant may be convicted of [a depraved indifference crime] when but a single person is endangered in only a few rare circumstances”; specifically, where the defendant exhibits “wanton cruelty, brutality or callousness directed against a particularly vulnerable victim, combined with utter indifference to the life or safety of the helpless target of the perpetrator’s inexcusable acts” (id. at 213). Here, there is no evidence that defendant exposed the victim to the risk of HIV infection out of any malevolent desire for the victim to contract the virus, or that he was utterly indifferent to the victim’s fate .. . People v Williams, 2015 NY Slip Op 01485, CtApp 2-19-15

 

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Municipal Action Re: a Mining Permit Not Ripe for Review

In finding that the issue was not ripe for review, the Third Department explained the relevant analytical criteria:

A municipal action is ripe for judicial review if it “impose[s] an obligation, den[ies] a right or fix[es] some legal relationship as a consummation of the administrative process” … . Such a determination requires a “pragmatic evaluation of whether the decision-maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury” … .

* * * … [A]ny harm to petitioner at this stage is merely speculative, may be ameliorated by further proceedings and is insufficient to warrant judicial review… . Matter of Troy Sand & Gravel Co Inc v Town of Nassau, 2015 NY Slip Op 01517, 3rd Dept 2-19-15

 

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“Ensuing Loss” Exception to Coverage Exclusion for Water Damage Did Not Apply to Water Damage Stemming from an “Explosion” of a Water Main Outside Plaintiffs’ Home—The “Ensuing Loss” Exception in the Policy Referred Only to Water Damage which Stemmed from a Covered Peril (Like a Fire)

The Court of Appeals, in a full-fledged opinion by Judge Read, with a concurring opinion, determined the water-damage exclusion in the homeowner’s policy precluded recovery for water entering plaintiffs’ basement when a water main burst outside the home.  Plaintiffs argued that an exception in the policy for water damage resulting from an “explosion” allowed recovery.  The Court of Appeals held that the “explosion” exception was part of an “ensuing loss” exception referring to water damage which necessarily followed a covered event, like an explosion or fire, and did not cover water damage stemming from an “explosion” of a water main outside the home:

First, “[i]n determining a dispute over insurance coverage, we first look to the language of the policy” … . Concomitantly, we “construe the policy in a way that affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect” … .

Second, although the insurer has the burden of proving the applicability of an exclusion …, it is the insured’s burden to establish the existence of coverage … . Thus, “[where] the existence of coverage depends entirely on the applicability of [an] [*5]exception to the exclusion, the insured has the duty of demonstrating that it has been satisfied” … .

And finally, “[w]here a property insurance policy contains an exclusion with an exception for ensuing loss, courts have sought to assure that the exception does not supersede the exclusion by disallowing coverage for ensuing loss directly related to the original excluded risk” …

In this case, plaintiffs’ loss occurred when water from a burst water main flowed onto their property, flooding the basement of their home. Accordingly, their loss clearly falls within item 4 of the water loss exclusion, which bars coverage for “loss to the property . . . consisting of or caused by . . . 4. Water . . . on or below the surface of the ground, regardless of its source . . .[, including] water . . . which exerts pressure on, or flows, seeps or leaks through any part of the residence premises” … .

Turning … to the sudden and accidental exception, this clause is properly characterized as an ensuing loss provision, which “provide[s] coverage when, as a result of an excluded peril, a covered peril arises and causes damage” … . Platek v Town of Hamburg, 2015 NY Slip Op 01483, CtApp 2-19-15

 

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Bare Allegation in an Attorney Affidavit that, Upon Information and Belief, the Deputies Lacked Probable Cause to Arrest Defendant, Not Enough to Justify a Hearing on a Suppression Motion

In finding defendant’s motion to suppress was properly denied without a hearing, the Third Department explained what is required to warrant a hearing:

“A motion seeking suppression of evidence ‘must state the ground or grounds of the motion and must contain sworn allegations of fact . . . supporting such grounds'” … . A hearing in this regard is neither “automatic [n]or generally available [simply] for the asking” … and, except in circumstances not present here (see CPL 710.60 [3] [b]; 710.20 [3], [6]), the trial court “may summarily deny the motion if the papers do not allege a legal basis for suppression or if the factual allegations do not as a matter of law support any alleged ground” … . Here, in support of her suppression motion, defendant tendered the affidavit of her attorney, who merely asserted — upon information and belief — that the deputies in question lacked probable cause to arrest defendant. This “bare allegation of a lack of probable cause, without any factual support, was insufficient to require a hearing” … . People v Briskin, 2015 NY Slip Op 01493, 3rd Dept 2-19-15

 

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Appellant Entitled to a Hearing on His Motion to Vacate His Conviction—Questions of Fact Whether Witness Testimony Was Induced by Threats and/or Promises Not Disclosed to the Defense at Trial

The Third Department determined appellant, who had been convicted of second degree murder, was entitled to a hearing re: a potential Brady violation.  Appellant was an inmate at the time of the incident and the witnesses to the incident were other inmates Appellant, in a motion to vacate the conviction, presented affidavits from witnesses to the incident who averred they were threatened or offered promises by prison personnel in exchange for their testimony.  The court noted there was a question of fact whether the prosecution could be held responsible for the actions of prison personnel (relevant information may have been outside the control of the prosecution):

…[D]efendant was entitled to a hearing on his motion. Due process requires that the People disclose to the defendant any evidence in their possession that is “material to guilt or punishment” … . The People must disclose evidence relating to a witness’s credibility, including “the ‘existence of an agreement between the prosecution and a witness, made to induce the testimony of the witness'” … . “To establish a Brady violation, a defendant must show that (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching in nature; (2) the evidence was suppressed by the prosecution; and (3) prejudice arose because the suppressed evidence was material” … . When a specific request has been made for the evidence that was withheld, “the materiality element is established provided there exists a ‘reasonable possibility’ that it would have changed the result of the proceedings” … . People v Lewis, 2015 NY Slip Op 01492, 3rd Dept 2-19-15

 

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Town, In Reviewing a Special Use Permit Application Under Its Zoning Regulations after the State Environmental Quality Review Act (SEQRA) Environmental Impact Statement (EIS) Process Is Complete, Must Rely on the SEQRA Findings and Cannot Make Further Environmental Impact Findings

In a mining-permit matter, the Third Department determined that, once a final Environmental Impact Statement (EIS) is approved after the State Environmental Quality Review Act (SEQRA) process is finished, the town (the lead agency) does not have the power to make further environmental-impact findings beyond those in the SEQRA record.  However, the town retains the power to do an independent review of the application for a special use permit under its zoning regulations:

…[A]lthough the Town is bound by DEC’s [Department of Environmental Conservation’s] SEQRA findings and it may not repeat the SEQRA process, it nevertheless retains the authority to make an independent review of plaintiffs’ application for a special use permit in accord with the standards and criteria set forth in its applicable zoning regulation … . That regulation provides that the Town may consider, among other things, the “health, safety, welfare, comfort and convenience of the public,” including “the environmental impact” of the proposed quarry (Local Law No. 2 [1986] of Town of Nassau art VI [A]). However, … the Town’s independent review [does not include] the ability to now gather additional environmental impact information beyond the full SEQRA record. Rather, in conducting its own jurisdictional review of the environmental impact of the project, the Town is required by the overall policy goals of SEQRA and the specific regulations governing findings made by “involved agencies” to rely on the fully developed SEQRA record in making the findings that will provide a rationale for its zoning determinations. Troy Sand & Gravel Co Inc v Town of Nassau, 2015 NY Slip Op 01511, 3rd Dept 2-19-15

 

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