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Eugenics Argument Should Be Rejected in a Lead-Paint Poisoning Case/Notice Criteria Explained

In a lead-paint poisoning case, the Fourth Department determined that the trial court’s denial of plaintiff’s motion to preclude the defendant from “claiming socioeconomic, genetic, eugenic or euthenics alternative and/or negating cause[s]” was not appealable. But Justice Fahey made it clear in a concurring opinion that the eugenics argument should be rejected.  In addition the Fourth Department explained the notice criteria in lead-paint cases:

We note at the outset that the appeal from the order insofar as it denied that part of the motion seeking to “preclud[e] defendants’ attorneys and hired experts from claiming socioeconomic, genetic, eugenic or euthenics alternative and/or negating cause[s]” must be dismissed.  “ ‘[A]n evidentiary ruling, even when made in advance of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission’ ”… .

[Justice Fahey, in a concurring opinion, wrote:] … I am troubled by the concept that an individual’s family history may be relevant to establishing a baseline for the purpose of measuring cognitive disability or delay.  I acknowledge that an explanation for cognitive problems may arise from one’s personal history, but as a conceptual and general matter I cannot agree with the principle of the eugenics defense that defendants propose here.  To my mind, the family of a plaintiff in a lead paint case does not put its medical history and conditions at issue, and the attempt to establish biological characteristics as a defense to diminished intelligence, i.e., a eugenics argument, cannot be countenanced and is something I categorically reject.

[With respect to notice, the Fourth Department explained:] .  “It is well settled that in order for a landlord to be held liable for injuries resulting from a defective condition upon the premises, the plaintiff must establish that the landlord had actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, it should have been corrected” … .  Under the circumstances of this case, we conclude that there is an issue of fact whether defendants had notice of the dangerous lead paint condition in the subject apartment “for such a period of time that, in the exercise of reasonable care, it should have been corrected” …  With respect to constructive notice, we note that the Court of Appeals in Chapman v Silber (97 NY2d 9, 15) wrote that constructive notice of a hazardous, lead-based paint condition may be established by proof “that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew that the apartment was constructed at a time before leadbased interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment.” Heyward v Shanne, 1358, 4th Dept 2-7-14

 

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Criteria for Review of a Zoning Amendment Explained

In upholding the propriety of the amendment, the Fourth Department explained the criteria for review of a zoning amendment:

It is well settled that a zoning amendment enjoys a “strong presumption of validity” …, and the decision of defendant Common Council of the City to amend the zoning ordinance should not be disturbed where, as here, the amendment is in accordance with the City’s comprehensive plan … .  Further, “[c]ompliance with the statutory requirement is measured . . . in light of the long-standing principle that one who challenges such a legislative act bears a heavy burden” … .  “ ‘If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control’ ” … . “Thus, where the plaintiff fails to establish a clear conflict with the comprehensive plan, the zoning classification must be upheld” … .  Restuccio…v City of Oswego…, 1284, 4th Dept 2-7-14

 

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Florida Choice of Law Provision Re: Covenants Not to Compete Unenforceable in New York/the Nonsolicitation Covenant at Issue Was Overbroad and Unenforceable

In a full-fledged opinion by Justice Whalen, the Fourth Department determined that Florida law re: covenants not to compete was “truly obnoxious” to New York law and the nonsolicitation covenant at issue was overbroad and unenforceable:

…[W]e conclude that Florida law prohibiting courts from considering the hardship imposed on the person against whom enforcement is sought is “ ‘truly obnoxious’ ” to New York public policy …, inasmuch as under New York law, a restrictive covenant that imposes an undue hardship on the employee is invalid and unenforceable for that reason ‘’’ .  Furthermore, while New York judicially disfavors such restrictive covenants, and New York courts will carefully scrutinize such agreements and enforce them “only to the extent that they are reasonably necessary to protect the legitimate interests of the employer and not unduly harsh or burdensome to the one restrained”…, Florida law requires courts to construe such restrictive covenants in favor of the party seeking to protect its legitimate business interests (see Florida Statutes § 542.335 [1] [h]). * * *

A non-solicitation covenant is overbroad and therefore unenforceable “if it seeks to bar the employee from soliciting or providing services to clients with whom the employee never acquired a relationship through his or her employment” … .  Here, the non-solicitation covenant purported to restrict [defendant] from, inter alia, soliciting, diverting, servicing, or accepting, either directly or indirectly, “any insurance or bond business of any kind or character from any person, firm, corporation, or other entity that is a customer or account of the New York offices of the Company during the term of [the] Agreement” for two years following the termination of Johnson’s employment, without regard to whether defendant acquired a relationship with those clients. We conclude that the language of the non-solicitation covenant renders it overbroad and unenforceable … . Brown and Brown Inc… v Johnson…, 1109, 4th Dept 2-7-14

 

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Failure to Address Youthful Offender Eligibility Required Remittal

The Fourth Department determined the trial court did not consider whether the defendant should be adjudicated a youthful offender and sent the matter back:

At sentencing, defense counsel made several applications for defendant to be treated as a youthful offender, but the court did not expressly rule on them; instead, the court imposed a sentence that was incompatible with youthful offender treatment.

“Upon conviction of an eligible youth, the court must order a [presentence] investigation of the defendant.  After receipt of a written report of the investigation and at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender” (CPL 720.20 [1]).  A sentencing court must determine whether to grant youthful offender status to every defendant who is eligible for it because, inter alia, “[t]he judgment of a court as to which young people have a real likelihood of turning their lives around is just too valuable, both to the offender and to the community, to be sacrificed in plea bargaining” … .  “[W]e cannot deem the court’s failure to rule on the. . . [applications] as . . . denial[s] thereof” … .  Furthermore, even if the court had denied the applications, there is no information in the record from which we could ascertain whether the court properly did so in the exercise of its discretion, or whether it improperly acceded to the prosecutor’s plea conditions.  People v Potter, 1199, 4th Dept 2-7-14

 

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Failure to Turn Over Brady Material Until the Day of Trial Required Reversal

The Fourth Department determined the prosecution’s failure to turn over Brady material (911 tape recording) until the day of trial required reversal:

“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 . . . In New York, where a defendant makes a specific request for [an item of discovery], the materiality element is established provided there exists a ‘reasonable possibility’ that it would have changed the result of the proceedings” … .

Here, the 911 recording is exculpatory because it includes the voice of an unidentified person referring to a white male suspect, and defendant herein is a black male.  Although defendant received the 911 recording as part of the Rosario material provided to him on the first day of trial, he was not “given a meaningful opportunity to use the exculpatory evidence”… . People v Carver, 1311, 4th Dept 2-7-14

 

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Counsel’s Failure to Object to References to Defendant’s Nickname Constituted Ineffective Assistance/Court’s Dismissal of an Entire Jury Panel Was Reversible Error

The Fourth Department reversed defendant’s conviction finding defense counsel ineffective for failure to object to the repeated references (by witnesses and the prosecutor) to the defendant’s nickname “killer.”  In addition, the Fourth Department determined the trial judge committed reversible error when he dismissed an entire jury panel:

Where, as here, a jury panel is “properly drawn and sworn to answer questions truthfully, there must be legal cause or a peremptory challenge to exclude a [prospective] juror” (…see CPL 270.05 [2]).  By dismissing the entire jury panel without questioning the ability of the individual prospective jurors to be fair and impartial …, the court deprived defendant of a jury chosen “at random from a fair cross-section of the community” (Judiciary Law § 500…). People v Collier, 8, 4th Dept 2-7-14

 

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Court Was Not Authorized to Deny a 440 Motion Without a Hearing Where People Submitted No Opposition to the Defendant’s Adequate Papers

The Fourth Department determined the trial court was not authorized to deny a 440 motion to vacate defendant’s conviction without a hearing because the defendant submitted affidavits supporting the motion and the People submitted no opposition:

County Court erred in denying without a hearing defendant’s motion seeking to vacate the judgment convicting him of, inter alia, murder in the second degree (Penal Law § 125.25 [1]) on the grounds that material evidence adduced at his trial was false and was known by the prosecutor to be false prior to the entry of judgment and that the judgment was obtained in violation of his due process rights (see CPL 440.10 [1] [c], [h]).  Defendant submitted two affidavits from a prosecution witness that “tend[ ] to substantiate all the essential facts” necessary to support defendant’s claims (CPL 440.30 [4] [b]).  The People submitted nothing in opposition to the motion that would require or indeed allow the court to deny the motion without a hearing (see CPL 440.30 [2], [4]) and, therefore, the court “was not statutorily authorized to deny defendant’s motion without a hearing”… . People v Parsons, 48, 4th Dept 2-7-14

 

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Court Should Have Granted a Hearing on Defendant’s Motion to Vacate His Conviction on Ineffective-Assistance Grounds

The Fourth Department determined defendant’s 440 motion to vacate his conviction should not have been denied without a hearing:

Defendant’s submissions “tend[ ] to substantiate all the essential facts” necessary to support his claim of ineffective assistance of counsel (CPL 440.30 [4] [b]). Moreover, his allegations are not contradicted by a court record and are supported by other affidavits, and “it cannot be said that ‘there is no reasonable possibility that [they are] true’ ” …   Specifically, defendant averred that defense counsel advised him that, if he pleaded guilty and cooperated with the District Attorney’s office in its investigation of other criminal matters, he would receive a sentence of no more than five years of incarceration.  Three other people averred that defense counsel told defendant’s fiancé, mother and father that defendant would receive “no more than” a five-year sentence.  At the time of the plea, the court informed defendant that the agreed-upon sentence was a term of incarceration of 10 years, but noted that it would approve a lesser sentence if one were recommended by the People “based upon any cooperation [from defendant that the People] deem[ed] satisfactory and helpful.”  After defendant met with representatives of the District Attorney’s office to fulfill his obligation under the cooperation agreement, the court sentenced him to a term of incarceration of 10 years.  According to defendant, defense counsel miscommunicated to him the level of cooperation necessary for the People to recommend a lesser sentence and misled him concerning what his sentence would be if he entered a plea to the indictment. The affidavits submitted by defendant in support of the motion raise factual issues that require a hearing … .  People v Hill, 108, 4th Dept 2-7-14

 

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Stipulation of No Contact Rendered Performance of Contracts Impossible/Contracts Rescinded

In a full-fledged opinion by Justice Acosta, the First Department determined that a stipulation entered into in Family Court, which prohibited all contact between the plaintiff, a well-known jazz singer, and defendant, the owner of a jazz club, made the performance of the contracts entered into by the plaintiff and defendant impossible.  Plaintiff was therefore entitled to rescission of the contracts.  Plaintiff and defendant (Valenti) had been in a romantic relationship which fell apart and plaintiff initially sought an order of protection from Family Court:

“[I]mpossibility excuses a party’s performance only when the destruction of the subject matter of the contract or the means of performance makes performance objectively impossible. Moreover, the impossibility must be produced by an unanticipated event that could not have been foreseen or guarded against in the contract” … . The excuse of impossibility is generally “limited to the destruction of the means of performance by an act of God, vis major, or by law” … .

In this case, performance of the contracts at issue has been rendered objectively impossible by law, since the stipulation destroyed the means of performance by precluding all contact between plaintiff and Valenti except by counsel… . Kolodin v Valenti, 2014 NY slip Op 00745, 1st Dept 2-6-14

 

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Redaction of Information Which Could Possibly Endanger Witnesses in a Homicide Investigation Is Required

Over a dissent, the First Department determined that information which could endanger confidential witnesses in a homicide investigation should be redacted from documents released pursuant to a FOIL request:

We agree with the dissent’s observation that the public safety exemption of Public Officers Law § 87(2)(f) does not warrant a blanket exception for DD5s …that reveal the identity of individuals (see Gould v New York City Police Dept., 89 NY2d 267, 277 [1996]…). However, the dissent’s rationale for release of this information, i.e., that “they may provide further information that would benefit [petitioner’s] case” is at odds with both the public safety and privacy exemptions of Public Officers Law § 87.

The Gould Court recognized that unlimited disclosure of identifying information on the DD5s is not warranted. It stated that “[d]isclosure of such documents could potentially endanger the safety of witnesses, invade personal rights, and expose confidential information of nonroutine police procedures. The statutory exemptions contained in the Public Officers Law, however, strike a balance between the public’s right to open government and the inherent risks carried by disclosure of police files” (Gould, 89 NY2d at 278, citing Public Officers Law § 87[2][b], [e], [f]). * * *

…[I]n the context of a homicide investigation, “we do not find that there must be a specific showing by respondents that petitioner, who is presently incarcerated, has threatened or intimidated any of the witnesses in his criminal case . . . in order to warrant redaction of certain identifying information” …. . … “The agency in question need only demonstrate a possibility of endanger[ment]’ in order to invoke this exemption” … . In fact, “[e]ven in the absence of such a threat, certain information found in DD-5s could, by its inherent nature, give rise to the implication that its release, in unredacted form, could endanger the life and safety of witnesses or have a chilling effect on future witness cooperation” … . Matter of Exoneration Initiative v New York City Police Dept, 2014 NY Slip Op 00728, 1st Dept 2-6-14

 

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