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Employer Not Required to Accommodate Employee with Epilepsy with Permanent Light-Duty Assignment

The Fourth Department determined petitioner’s employer, the Erie County Sheriff’s Office (ECSO), was not required to accommodate the petitioner, who has epilepsy, with permanent light duty employment:

“Pursuant to Executive Law § 296 (3) (b), employers are required to make reasonable accommodations to disabled employees, provided that the accommodations do not impose an undue hardship on the employer. A reasonable accommodation is defined in relevant part as an action that permits an employee with a disability to perform his or her job activities in a reasonable manner” (… see § 292 [21-e]). “In reviewing the determAdd Newination of SDHR’s Commissioner, this Court may not substitute its judgment for that of the Commissioner . . . , and we must confirm the determination so long as it is based on substantial evidence’ ” … .

Petitioner, a deputy sheriff assigned to the position of “inmate escort” at ECSO’s correctional facility, does not dispute that her epilepsy does not permit her to be assigned to duties involving direct inmate contact, i.e., duties that require uninterrupted vigilance and emergency response capability … . Thus, petitioner also does not dispute that she cannot perform the essential functions of an “inmate escort” without presenting a direct threat to her own safety and others in the workplace (see 42 USC § 12113 [b]…). In order to accommodate her disability, however, petitioner ultimately requested assignment to a light-duty position. It is well settled that an employer is neither required to create a new light-duty position to accommodate a disability (see 9 NYCRR 466.11 [f] [6]…), nor to assign an employee with more than a temporary disability to a position in a light-duty program designed to accommodate only temporary disabilities … . The fact that an employer has been lax in enforcing the temporary nature of its light-duty policy does not convert the policy into a permanent one … . Although ECSO maintained a “light-duty” program (Policy # 03-01-07, Light Duty Assignments), the purpose of that program is to assist employees with temporary disabilities by modifying work assignments and duties or arranging for a temporary transfer to a “Transitional Duty Assignment (TDA)” until the employee is medically released to resume regular duties. The express intent of ECSO’s “policy is not to create a permanent Transitional Duty Assignment, nor is [the policy] to be used in cases where an employee cannot perform the essential functions of a job with reasonable accommodation.” Petitioner’s epilepsy seizure disorder was described by her own treating physician as “long-term.” Thus, we conclude that there is no basis to disturb SDHR’s (State Division of Human Rights’) determination that petitioner’s disability was of a permanent nature and that ECSO had no permanent light-duty police assignments available. Matter of Coles v New York State Div of Human Rights, 2014 NY Slip Op 07788, 4th Dept 11-14-14

Similar issue and result in Matter of County of Erie v New York State Div of Human Rights, 2014 NY Slip Op 07829, 4th Dept 11-14-14

 

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The Striking Down (by the Court of Appeals) of a Retroactive Zoning Ordinance Which Prohibited the Operation of a Landfill Did Not Require the Striking Down of a Subsequent Health and Safety Regulation Which Had the Same Effect

The Fourth Department determined that the striking down (by the Court of Appeals) of a 2005 retroactive zoning ordinance which prohibited the continued use of petitioner’s property as a landfill did not require the striking down of a 2007 health and safety regulation which had the same effect.  Because the two regulations are different in nature, the collateral estoppel doctrine is not available:

…[W]e agree with defendants that collateral estoppel does not apply here. “The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party’ ” … . The doctrine “applies only if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action’ ” … . “The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination” … . Here, the issue in this case—the legality of the 2007 Law as applied to plaintiffs—was neither raised by the parties nor decided by the Court of Appeals in Jones I. The issue before the Court of Appeals in Jones I was whether the 2005 Law was constitutional as applied to plaintiffs, i.e., whether the 2005 Law extinguished plaintiffs’ legal use of their land for the purpose of operating a C & D landfill on the entire parcel (see Jones I, 15 NY3d at 145-146). The Court of Appeals held that “the zoning ordinance at issue in this case [i.e., the 2005 Law], which restricted the development of landfills, does not apply to plaintiffs because they acquired a vested right to use their 50-acre parcel as a landfill for construction and demolition debris before the enactment of the zoning law” (id. at 142 [emphasis added]).

Although the 2005 Law and the 2007 Law both regulate landfill operations, they are not identical. The 2005 Law amended the Zoning Law to eliminate sanitary and demolition landfills as a permitted use in the AR-1 zoning district. The 2007 Law did not amend the Zoning Law to eliminate landfills in a particular zoning district but, rather, it enacted a Town-wide ban on solid waste management facilities. In concluding that the 2005 Law did not apply to plaintiffs, the Court of Appeals relied upon its [prior] decisions… . Those cases involve the nonconforming use doctrine, which shields vested property rights from the retroactive effect of zoning ordinances… .

The 2007 Law, however, is a health and safety regulation, not a retroactive zoning ordinance … . Unlike the 2005 Law, the 2007 Law does not “regulate[] the location of certain facilities within particular zoning districts” but, rather, it “generally regulat[es] the operation of [solid waste management] facilities in the interest of public safety and welfare” … . It is well established that “a municipality has the authority, pursuant to its police powers, to impose conditions of operation . . . upon preexisting nonconforming uses to protect public safety and welfare” (id.) and “may even eliminate [a] nonconforming use provided that termination is accomplished in a reasonable fashion” … . Jones v Town of Carroll, 2014 NY Slip Op 07780, 4th Dept 11-14-14

 

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Statements Made by Defendant to Physician In Presence of Police Investigator Not Privileged

The Fourth Department determined the physician-patient privilege did not protect statements made by the defendant to the doctor while a police investigator was in the room:

We reject defendant’s contention that Supreme Court erred in allowing a medical professional to testify to statements defendant made to her while being examined at the hospital after his arrest. Defendant contends that his statements were subject to the physician-patient privilege despite the presence of a police investigator in the examination room because he was in custody and was not able to tell the investigator to leave the room. The physician-patient privilege, which is “entirely a creature of statute” .., is set forth in CPLR 4504 (a), and is applicable to criminal proceedings by virtue of CPL 60.10 … . In determining whether the physician-patient privilege applies, we must consider “whether in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential” … . Here, we conclude that defendant did not meet his burden of establishing that the privilege applied … , because there was no showing that he intended that his statements be confidential. Defendant was aware of the investigator’s presence, but he did not ask to speak with the medical professional privately. Additionally, defendant made numerous statements to others that were similar to the statements he made to the medical professional, both before and after making them to her. People v Hartle, 2014 NY Slip Op 07812, 4th Dept 11-14-14

 

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Inadvertently Disseminated Investigative Report [Concerning a Doctor’s Conduct With Respect to Plaintiff’s Decedent] Generated by the Office of Professional Medical Conduct Is Not Discoverable—Matter Must Be Returned to the “Status Quo Prior to the [Inadvertent] Disclosure”

In a wrongful death action, the Fourth Department determined that a report generated by the Office of Professional Medical Conduct (OPMC) concerning an investigation into decedent’s death was not discoverable pursant to the Public Health Law and a protective order pursuant to CPLR 3103 should have been granted in its entirety. The report was inadvertently disclosed by the plaintiff to all the defendants.  Supreme Court ruled only that the report could not be further disseminated.  The Fourth Department noted that Supreme Court’s order was appealable pursuant to CPLR 5701(a)(20(v) even though the denial of the motion for a protective order was without prejudice to renew:

…[W]e conclude that Supreme Court erred in granting defendants’ motion only in part, and should have granted the motion in its entirety. “Pursuant to Public Health Law § 230 (10) (a) (v), the files of OPMC concerning possible instances of professional misconduct are confidential, subject to [certain] exceptions,” including Public Health Law § 230 (9), which are not applicable here … . Inasmuch as there is no evidence in the record that the OPMC proceeded past the interview phase of [the doctor’s] alleged misconduct with respect to decedent, the OPMC report is not discoverable as a matter of law (see § 230 [10] [a] [v]). Thus, we conclude that the court erred in failing to restore this matter to the “status quo prior to the[inadvertent] disclosure”… . Kirby v Kenmore Mercy Hosp, 2014 NY Slip Op 07804, 4th Dept 11-14-14

 

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Exculpatory Evidence Provided by Co-Defendant Should Not Have Been Struck from the Record When Co-Defendant Asserted His Privilege Against Self-Incrimination

The Fourth Department reversed defendant’s conviction because the trial judge, sua sponte, struck all of his co-defendant’s testimony after the co-defendant invoked his privilege against self-incrimination.  The defendant was entitled to have the exculpatory evidence presented by the co-defendant considered by the jury:

County Court erred in sua sponte striking the entire testimony of his codefendant after the codefendant invoked his privilege against self-incrimination, and we therefore reverse the judgment and grant a new trial … . We conclude that the court erred in failing to “weigh the options” in a “threshold inquiry” to determine whether “less drastic alternatives” were available, other than striking the entire testimony of the codefendant … . Here, the codefendant provided testimony that, if allowed to remain in the record, would have supported defendant’s positions that defendant did not engage in any scheme to defraud, and that the codefendant had pleaded guilty with respect to similar charges brought against him in order to avoid harsher penalties, and not because the codefendant had engaged in any fraudulent conduct. We further conclude that defendant had the right to have such “relevant and exculpatory testimony considered by the jury” … . We also conclude that the court’s error in striking the codefendant’s testimony is not harmless inasmuch as “the proof against defendant [is] not overwhelming and there is a reasonable probability that defendant would have been acquitted but for the error” … . People v Chadick, 2014 NY Slip Op 07789, 4th Dept 11-14-14

 

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People Failed to Prove Low IQ Defendant Validly Waived His Miranda Rights and Gave Statements Voluntarily—Convictions Reversed, Some Charges Dismissed and New Trial Ordered

The Fourth Department, in a full-fledged opinion by Justice Peradotto, found that the defendant’s statements should have been suppressed because the People failed to prove the defendant intelligently waived his right to remain silent and because the People failed to prove his statements were made voluntarily.  The evidence indicated defendant has an IQ of 63 or 68.  There was a video of defendant’s interrogation. And the defense presented expert opinion evidence that the defendant was not capable of intelligently waiving his Miranda rights, and, because of the leading nature of the interrogation and defendant’s excessively compliant nature, the defendant did not make his statements voluntarily:

At the Huntley hearing, the People presented the expert testimony of a forensic psychiatrist who interviewed defendant in jail and reviewed the videotape of his confession. The People’s expert acknowledged that defendant was “intellectually handicapped,” with a full-scale IQ of 68, but concluded that defendant was “not that retarded” and could understand his Miranda rights. The defense expert testified that defendant’s IQ placed him in the “mentally retarded range of intellectual functioning.” Defendant’s verbal IQ was 63, which placed him in the first percentile, meaning that he performed worse than 99% of the test population. Based upon defendant’s “very poor” level of verbal functioning, the defense expert opined that, although defendant was “able to understand the words of the Miranda rights,” he was “not capable of intelligently waiving” those rights. He further opined that defendant was “a very suggestible and very compliant man as is not atypical of persons who are mentally retarded,” which placed him at risk of falsely confessing. * * *

Where a “person of subnormal intelligence” is involved, “close scrutiny must be made of the circumstances of the asserted waiver” … . “A defendant’s mental deficiency weighs against the admissibility of an elicited confession, so that any such confession must be measured by the degree of the defendant’s awareness of the nature of the rights being abandoned and the consequences of the decision to abandon them” … . A suspect of “subnormal intelligence” may effectively waive his or her Miranda rights “so long as it is established that he or she understood the immediate meaning of the warnings” …, i.e., “how the Miranda rights affected the custodial interrogation” (id. at 289). It must therefore be shown that the suspect “grasped that he or she did not have to speak to the interrogator; that any statement might be used to the subject’s disadvantage; and that an attorney’s assistance would be provided upon request, at any time, and before questioning is continued. What will suffice to meet this burden will vary from one case to the next” … . * * *

As the defense expert testified at trial, “[w]hat became very clear in the video . . . was that [defendant] changed his answers based on the kind of questioning that was done to him. In other words, he was asked the question, the same question over and over again. So it no doubt became clear to him that he was answering the wrong way. So he changed his answers to be what he believed the cop wanted to know.” Many, although not all, of defendant’s responses consisted of “mmm-hmm,” yes, and a parroting back of the detective’s statements. The detective also told defendant that he had spoken to the victim and her mother, that the victim was “not lying,” and that the medical examination was going to show that “something happened” between defendant and the victim. The defense expert testified that such tactics “would lead [defendant] to question his own memory of the situation which isn’t good to begin with. He’s got deficits in memory. So if presented with memory that would counteract what he believed to be true, he would change his answer.” People v Knapp, 2014 NY Slip Op 07801, 4th Dept 11-14-14

 

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Request for Missing-Witness Jury Instruction Should Have Been Granted—Prosecutor’s Statement that the Witness Would Exercise His Fifth Amendment Privilege Against Self-Incrimination Not Enough to Demonstrate Witness’ Unavailability

The Fourth Department granted defendant a new trial because the defense request for a missing witness jury instruction was denied.  The witness, who had testified before the grand jury,  was the only eyewitness to the relevant events.  The prosecutor argued the witness was unavailable because he would assert his Fifth Amendment privilege against self-incrimination.  The Fourth Department determined the witness’ unavailablity was not sufficiently established:

Contrary to the People’s contention, they failed to establish that the eyewitness was unavailable. Although the People correctly note that “a witness who on Fifth Amendment grounds refuses to testify will be considered unavailable’ although the witness’s presence is known and apparent” …, the People failed to establish that the eyewitness was unavailable on that ground. An uncharged accomplice may be considered unavailable in certain circumstances …, but the statements made by the prosecutor were not sufficient to establish that the eyewitness was an accomplice or that he faced any criminal liability for his actions … . The People’s further contention that the prosecutor could not call the eyewitness inasmuch “as his attorney will have him plead the Fifth Amendment” is not supported by evidence in the record before us. It is well settled that a trial court “should . . . be reasonably sure that the witness will in fact invoke the privilege, and where there is doubt the witness should be brought before the court and asked the relevant questions” … . Here, the prosecutor did not call the eyewitness and there was no communication from the eyewitness’s attorney; thus, “there was no verification that [the eyewitness] would plead the Fifth Amendment on the stand” … . The People’s “bare allegation that the witness in question apparently’ would assert [his] Fifth Amendment privilege, in light of the attendant circumstances, did not render that witness unavailable” … . People v Fuqua, 2014 NY Slip Op 07784, 4th Dept 11-14-14

 

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Under the Facts, the Failure to Call a Witness Requested by the Inmate Was a Regulatory, Not a Constitutional, Violation—New Hearing Ordered

The Fourth Department noted that where a good faith reason for not calling a witness requested by the inmate appears on the record, the error is regulatory, not constitutional, in nature and a new hearing, not expungement, is required:

…[T]he Hearing Officer violated petitioner’s right to call witnesses as provided in the regulations (see 7 NYCRR 254.5…). Although petitioner seeks expungement, he is not entitled to that relief at this juncture. Where, as here, “a good faith reason for the denial appears on the record, this amounts to a regulatory violation” rather than a violation of petitioner’s constitutional rights, “requiring that the matter be remitted for a new hearing” … . Matter of Johnson v Prack, 2014 NY Slip Op 07859, 4th Dept 11-14-14

 

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Retroactive Suspension of Child Support Payments Based On Interference With Payor’s Parental Rights Proper

In a lengthy and complex decision which addressed the proper allocation of marital and separate property, including the application of credits for the contribution of separate property to marital assets, the Third Department determined that child support payments can be suspended retroactively based upon interference with the payor’s parental relationship.  In a concurring decision, two justices expressed their concern that the availability of retroactive suspension of child support would lead to self-help, i.e., the unilateral suspension of payments without a court order.  To avoid that circumstance, the concurring justices suggested that child support payments be made to an escrow account pending a decision on the application to cease the payments (as was done in this case).  From the concurring decision:

While we agree with the result reached by the majority, we are compelled to voice our concerns regarding the practical effect of, and policy considerations surrounding, the retroactive suspension of a noncustodial parent’s obligation to pay child support. According to the longstanding jurisprudence of this Court, in certain circumstances, such as here, in which a custodial parent interferes with the parental rights of the noncustodial parent, a court may suspend the noncustodial parent’s child support obligation retroactive to the date an application for such suspension was made … . While we interpret the relevant statutes as prohibiting the child support payor from unilaterally discontinuing his or her payments during the pendency of a suspension application in the absence of a court order permitting such action, we are concerned that our previous decisions — and, to a certain extent, the majority decision here — which apply a suspension of child support retroactively, could actually promote such self-help. We, therefore, write separately to advocate for clarification and/or a modification of our precedent on this issue. * * *

…[W]e are of the view that a retroactive suspension of child support payments is appropriate only where, as here, the child support payor has, with court authorization, either paid child support into an escrow account or has obtained a temporary court order suspending payments during the pendency of the suspension application. In our opinion, requiring that child support payments be made in escrow is preferable, as it ensures that the noncustodial parent fulfills his or her child support obligations if the case is ultimately decided in favor of the custodial parent, while also making certain that the financial support is readily available for court-directed withdrawals, if necessary, for the custodial parent to meet the needs of the children … . If, on the other hand, the noncustodial parent prevails, a subsequent suspension of child support can truly be retroactive and allow for the return of monies paid into the escrow account without violating the public policy against recoupment and without encouraging the accrual of arrears. Whitaker v Case, 2014 NY Slip Op 07707, 3rd Dept 11-13-14

 

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Legal Opinions, Software, and a Manual for the Software Properly Withheld

The First Department determined the respondent NYS Division of Human Rights properly withheld certain materials requested pursuant to the Freedom of Information Law (FOIL).  Legal opinions were exempt as “intra-agency materials” and were also exempt because the person who was the subject of the documents did not consent to the release.  In addition, software which was requested was not “information” within the meaning of FOIL:

Respondent properly withheld the four legal opinions requested by petitioner pursuant to the “intra-agency materials” exemption (see Public Officers Law § 89[2][g]), since they are essentially “predecisional memoranda, prepared to assist the agency in its decision-making process and . . . are not final agency determinations or policy” … . Contrary to petitioner’s argument, the opinions do not fall under the exceptions to this exemption for “statistical or factual tabulations or data” (Public Officers Law § 89[2][g][i]) or “instructions to staff that affect the public” (Public Officers Law § 89[2][g][ii]…).

Moreover, three of the four opinions are “specifically exempted from disclosure by state . . . statute” (Public Officers Law § 87[2][a]…) pursuant to Executive Law § 297(8), which prohibits respondent from making public information contained in reports obtained by it with respect to a particular person without his or her consent. …

Respondent properly denied the request for its “Case Management System Legal Resources Notebook,” which does not constitute a record within the meaning of FOIL, since it is not “information” (Public Officers Law § 86[4]) but rather a software application providing the means of accessing information in its electronic file system. It also properly withheld the user’s manual for that application, since its disclosure “would jeopardize [respondent’s] capacity . . . to guarantee the security of its . . . electronic information systems” (Public Officers Law § 87[2][i]).  Matter of Miller v New York State Div of Human Rights, 2014 NY Slip Op 07742, 1st Dept 11-13-14

 

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