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In a Class Action Suit, Class-Representatives’ Failure to Keep In Touch With Their Lawyer Justified Their Withdrawal as Class Representatives

The Third Department determined Supreme Court should have allowed representatives of the class (in a class action lawsuit) to withdraw based upon the representatives’ failure to keep in touch with their lawyer:

Supreme Court abused its discretion in declining to permit the seven class representatives to withdraw from this action. CPLR 3217 (b) provides that an action or proceeding may be discontinued “upon order of the court and upon terms and conditions, as the court deems proper.”  While the decision to grant such an application is generally committed to the sound discretion of the trial court …, a party cannot ordinarily be compelled to litigate and, absent special circumstances – such as prejudice to a substantial right of the defendant or other improper consequences – discontinuance should be granted … . * * *

Class representatives have a duty to adequately and vigorously represent the interests of class members … .  Thus, if a class representative fails to maintain contact with class counsel or is otherwise no longer willing or able to serve in that capacity, he or she cannot fulfill the duties of a class representative and should withdraw … .  The remedy under such circumstances is not to penalize the entire class by forcing an unwilling plaintiff to remain in the litigation. Hurrel-Harring v State of New York, 517131, 3rd Dept 12-19-13

 

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Zoning Board Should Have Made Every Effort to Accommodate Religious Use/Zoning Board’s Denial of Variances Annulled and Variances Granted

The Second Department affirmed Supreme Court’s determination annulling a zoning board’s denial of variances to allow parking for a religious organization (and granting the variances).  The court noted that religious organizations are not exempt from zoning regulation, but the Board was obligated to make an effort to accommodate the religious use (which it did not do):

The Board’s denial of the petitioner’s applications was arbitrary and capricious. “[W]hile religious institutions are not exempt from local zoning laws, greater flexibility is required in evaluating an application for a religious use than an application for another use and every effort to accommodate the religious use must be made” … . A local zoning board is required to “suggest measures to accommodate the proposed religious use while mitigating the adverse effects on the surrounding community to the greatest extent possible” … .

Here, the record reflects that the Board voted to deny the petitioner’s applications without making any attempt to accommodate the proposed religious use… . Matter of Gospel Faith Mission Intl Inc v Weiss, 2013 NY Slip Op 08439, 2nd Dept 12-18-13

 

 

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Prima Facie Proof Requirements for Entitlement to Payment of “No-Fault” Medical Expenses Clarified

In a full-fledged opinion by Justice Rivera, over the partial dissent by two justices, the Second Department resolved a conflict in its authority regarding what a medical provider must demonstrate to make out a prima facie case of entitlement to payment for medical treatment under the no-fault regime.  In Art of Healing Medicine PC v Travelers Home & Mar Ins Co (55 AD3d at 64), the Second Department wrote that “[t]he plaintiffs [ ] medical service providers failed to demonstrate the admissibility of their billing records under the business records exception to the hearsay rule”… . Based upon that language in “Art of Healing…,” several Appellate Term decisions “found that the plaintiff failed to establish its prima facie burden where it relied upon the affidavit of a biller who did not possess personal knowledge of the plaintiff’s business practices and procedures so as to establish that the claim forms annexed to the plaintiff’s moving papers were admissible under the business records exception to the hearsay rule…”.  In the instant case, the Second Department rejected that interpretation and reiterated that all a medical provider must demonstrate to make out a prima facie case is the submission of the proper billing forms and the failure to deny or pay the claim within the statutory period:

The requirement in Insurance Law § 5106(a) that a claimant must submit “proof of the fact and amount of the loss sustained” in order to trigger the 30-day period in which to pay or deny a claim refers to the contents of the billing forms, not the merits of the claim. * * *

The “how” evidentiary component of the plaintiff’s proof is met by, inter alia, the affidavit of a billing agent or an employee of the medical provider; that is, someone with personal knowledge of the plaintiff’s billing methods … . The billing agent will (1) attest that he/she personally sent the billing forms to the insurer, that the insurer received the same, and that the insurer failed to pay or deny the claim within the requisite 30-day period, or (2) set forth the procedures customarily utilized in the ordinary course of its business regarding the mailing/receipt of such forms and that the insurer failed to pay or deny the claim within the requisite 30-day period. As part of its prima facie showing, the plaintiff is not required to show that the contents of the statutory no-fault forms themselves are accurate or that the medical services documented therein were actually rendered or necessary. Stated another way, the plaintiff is not required to establish the merits of the claim to meet its prima facie burden. To the extent that Art of Healing imposes a “business record” requirement obliging the plaintiff to establish the truth or the merits of the plaintiff’s claim, we overrule Art of Healing. Viviane Etienne Med Care PC v Country-Wide Ins Co, 2013 NY Slip Op 08430, 2nd Dept 12-18-13

 

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Civil Contempt Does Not Include the Element of Willfulness/Adverse Inference May Be Drawn Re: Assertion of Privilege Against Self-Incrimination in Civil Contempt Proceeding

In a full-fledged opinion by Justice Angiolillo, the Second Department cleared up some confusion created by conflicting authority concerning whether willfulness was an element of civil contempt.  The defendant was held in contempt based upon his failure to deposit the proceeds of the sale of marital property with the court. The Second Department concluded willfulness is not an element of civil contempt.  In addition, the Second Department explained that the defendant’s assertion of his Fifth Amendment privilege against self-incrimination in the contempt proceedings did not preclude the court from drawing an adverse inference and did not relieve the defendant of his burden of proof:

…[W]e conclude that, for the plaintiff to prevail on her motion to hold the defendant in civil contempt, she was required to prove by clear and convincing evidence “(1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct” … . The use of the words “willful” and “willfully” in some of our cases involving civil contempt …, should not be construed to import the element of willfulness into a civil contempt motion made pursuant to Judiciary Law § 753(A)(3). “It is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party” … . * * *

“[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them” … . “In New York, unlike the rule in a criminal case, a party’s invocation of the privilege against self-incrimination in a civil case may be considered by the finder of the facts in assessing the strength of the evidence offered by the opposing party on the issue which the witness was in a position to controvert” … .  El-Dehdan v El-Dehdan, 2013 NY Slip Op 08404, 2nd Dept 12-18-13

 

 

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Prosecutorial Misconduct and Defense Counsel’s Ineffectiveness Required Reversal

The Second Department reversed defendant’s conviction, in the interest of justice, finding the prosecutor’s improper comments during summation deprived defendant of a fair trial. In addition, the Second Department determined defense counsel was ineffective in eliciting inadmissible expert testimony detrimental to the defense and failing to object to the prosecutor’s misconduct:

Re: prosecutorial misconduct during summation, the Second Department wrote:

In summing up, a prosecutor “must stay within the four corners of the evidence and avoid irrelevant and inflammatory comments which have a tendency to prejudice the jury against the accused” … . At trial, the defendant presented evidence concerning his cooperation with law enforcement authorities in drug cases against the complainants’ mother to establish that the complainants had a motive to fabricate their allegations against him. During summation, the prosecutor improperly referred to such evidence as “an elaborate attempt to distract [the jury] from the real issues in this case” … . The prosecutor also inaccurately stated that the defendant, who had testified on his own behalf, needed “a clarification about which child’s vagina he did or did not touch,” when the defendant, in fact, had asked whether the question concerned his paramour, the complainants’ mother. In addition, the prosecutor made an irrelevant and inflammatory argument intended to convince the jury that the … defendant’s denials of the sexual abuse allegations in the indictment were implicit admissions that he had abused the complainants outside the periods of time designated for the charged crimes … .Furthermore, the prosecutor impugned the defendant’s right to testify and improperly suggested that he lied on the stand, when she referred to him as “an opportunist” who “took the stand, and . . . said what he thought he had to to save himself” … . Finally, the prosecutor impermissibly vouched for the credibility of a witness based on his position as a law enforcement officer … . The cumulative effect of these improper comments deprived the defendant of a fair trial … .

Re: the ineffectiveness of defense counsel, the Second Department wrote:

During cross-examination by defense counsel, the People’s expert on child sexual abuse accommodation syndrome offered testimony that the truthfulness of a child’s disclosure of sexual abuse could be analyzed by looking at whether the content is specific and not age-appropriate knowledge. Despite the fact that this testimony was inadmissible …, and favorable to the People, defense counsel inexplicably asked the expert to elaborate, eliciting highly damaging testimony that a child’s allegations of oral sexual conduct, sexual contact between males, or reciprocal contact would be “rather unique and idiosyncratic,” and more believable than “just a global statement that I was touched.” Thus, defense counsel intentionally elicited inadmissible and unduly prejudicial testimony during cross-examination … . Defense counsel also was deficient in failing to object to the prosecutor’s improper remarks during summation … . The cumulative effect of defense counsel’s errors deprived the defendant of the effective assistance of counsel … . Accordingly, the judgment must be reversed and a new trial ordered for this reason as well. People v Mehmood, 2013 NY Slip Op 08461, 2nd Dept 12-18-13

 

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Conviction Under Accomplice Liability Theory Reversed After a Weight of the Evidence Analysis

The Second Department reversed defendant’s conviction for criminal sale of a controlled substance under an accomplice liability theory, finding the conviction against the weight of the evidence. The officer who purchased the drugs assumed, based on circumstantial evidence, the drugs were supplied to the seller by the defendant (who was in a vehicle with the seller and a woman) but did not actually see any transaction between the defendant and the seller:

Although the officer testified that, based upon his training and experience as an undercover officer who had made over 500 buys, he believed that the codefendant received drugs from the defendant inside the vehicle, he admitted that he did not observe an exchange of money or drugs between the codefendant and the defendant. People v Curry, 2013 NY Slip Op 08455, 2nd Dept 12-18-13

 

 

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Abstention from Alcohol While Incarcerated and Exemplary Prison Record Did Not Warrant Downward Departure Re: Sex Offender Status/Basics of Sex Offender Registration Act (SORA) Proceedings Explained In Some Depth

The First Department affirmed the sex offender status determined by Supreme Court, rejecting the arguments that an exemplary prison record and abstention from alcohol during a long incarceration warranted a downward departure.  The court took the trouble to explain some of the basics of a Sex Offender Registration Act (SORA) determination:

In assessing a sex offender’s danger to the community, and therefore, its recommendation to the court hearing a SORA application, the Board of Examiners of Sex Offenders (BOSE) must consider 15 statutory factors, applying them in accordance with the Risk Assessment Guidelines developed to assess an individual applicant’s risk of a repeat offense (Correction Law § 168—l[5]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 3 [2006]). The evaluation is made using a Risk Assessment Instrument (RAI), identifying each factor which, if applicable, is assigned a numerical value. If a particular factor is not applicable, it is assessed at zero. The values are then tallied, resulting in a recommended risk assessment which is considered as presumptively correct at the SORA hearing before the court … .

One of the factors BOSE considers is “whether the sex offender’s conduct was found to be characterized by repetitive and compulsive behavior, associated with drugs or alcohol” … (Correction Law § 168-1[5][a][ii]). The guidelines clarify that if the individual has a history of drug or alcohol abuse “or was abusing drugs and or alcohol at the time of the offense,” 15 points will be assessed in that category (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15). Pursuant to the guidelines, BOSE or the court may choose to score zero points in this category, if the drug and/or alcohol abuse is “in the distant past, but [the defendant’s] more recent history is one of prolonged abstinence” … .

Since defendant admittedly committed his crime while intoxicated, this alone supports the 15 point assessment made against him in this category … . Thus the issue turns on whether his prolonged abstinence from alcohol use, while incarcerated, provides a basis for a 15 point reduction in this category. We find that it does not.

We have consistently held that even when alcohol use in the commission of the crime is remote in time, and the defendant has abstained from alcohol use for a prolonged period while incarcerated, such remoteness and abstinence are unreliable predictors of the risk for re-offense post-release, or to the threat posed by the sex offender to public safety … .   * * *

The SORA court also providently exercised its discretion in denying defendant’s application for a discretionary downward departure to a level 2 based upon claims that he had an exemplary record while incarcerated, has shown remorse for his crime, and is now a productive member of society * * *.

We emphasize that a SORA risk-level determination is not an extended form of punishment for the sex crime committed, but a collateral consequence of the conviction intended to protect the public at large from the possibility of future crime … . A departure from a sex offender’s presumptive risk level is generally warranted only where “there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4…)… .  People v Watson, 2013 NY Slip Op 08379, 1st Dept 12-17-13

 

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Part Performance Exception to the Statute of Frauds Does Not Apply to Contracts Which Cannot Be Performed Within One Year

The First Department, in a full-fledged opinion by Justice Saxe, determined that the part performance exception to the statute of frauds should not be applied to contracts that cannot be performed within one year.  The court first explained what “capable of performance within one year” means, and then looked at the controlling statute (General Obligations Law 5-701 (a)(1):

Before addressing the central issue of the applicability of a part performance exception for contracts that must be in writing under General Obligations Law § 5-701, I note … the oral contract alleged here was categorized as a contract incapable of performance within one year of its making (General Obligations Law § 5-701[a][1]). The application of § 5-701(a)(1) is limited to contracts that “have absolutely no possibility in fact and law of full performance within one year” … . “[T]he statute does not include an agreement which is simply not likely to be… performed, nor yet one which is simply not expected to be performed within the space of a year. Neither does it include an agreement which, fairly and reasonably interpreted, admits of a valid execution within that time, although it may not be probable that it will be” … . So, the determination of whether an alleged oral contract can possibly be performed within one year of its making is not conducted by looking back at the actual performance; it requires analysis of what was possible, looking forward from the day the contract was entered into. * * *

Analysis of the part performance exception must begin by emphasizing that General Obligations Law § 5-701 lacks any provision for a part performance exception such as that explicitly provided for by General Obligations Law § 5-703, which concerns contracts for the conveyance of an interest in real property. That is, while § 5-703(4) specifically provides, “Nothing contained in this section abridges the powers of courts of equity to compel the specific performance of agreements in cases of part performance,” the broader statute of frauds provision of § 5-701 contains nothing of the sort – although, notably, it contains other exceptions … .

Two relevant principles of statutory construction apply here. The first is that “a court cannot amend a statute by inserting words that are not there, nor will a court read into a statute a provision which the Legislature did not see fit to enact” … . The second is that an “inference must be drawn that what is omitted or not included was intended to be omitted and excluded” … . Inferring that the Legislature authorized a part performance exception for an oral contract that is not capable of performance within one year violates these principles. Gural v Drasner, 2013 NY Slip Op 08391, 1st Dept 12-17-13

 

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“Equitable Medical Monitoring” Cause of Action Rejected; Plaintiffs, Who Had No Signs of Cancer from Heavy Smoking, Were Not Entitled to Bring an Action to Cover the Costs of CT Scans to Periodically Check for Cancer

In a full-fledged opinion by Judge Pigott, with two dissenting judges, the Court of Appeals determined New York does not recognize a “medical monitoring” cause of action.  The plaintiffs were all heavy smokers.  None of the plaintiffs is currently sick.  The lawsuit sought damages to pay for “medical monitoring” (low dose CT scans “LDCT”) as a way to ensure early diagnosis of cancer:

Plaintiffs do not claim to have suffered physical injury or damage to property.  They assert, rather, that they are at an “increased risk” for developing lung cancer and would benefit from LDCT monitoring, which they claim would allow them to discover the existence of cancers at an earlier stage, leading to earlier treatment.

A threat of future harm is insufficient to impose liability against a defendant in a tort context … .  The requirement that a plaintiff sustain physical harm before being able to recover in tort is a fundamental principle of our state’s tort system … .  The physical harm requirement serves a number of important purposes: it defines the class of persons who actually possess a cause of action, provides a basis for the fact-finder to determine whether a litigant actually possesses a claim, and protects court dockets from being clogged with frivolous and unfounded claims.

Having alleged no physical injury or damage to property in their complaint, plaintiffs’ only potential pathway to relief is for this Court to recognize a new tort, namely, an equitable medical monitoring cause of action. Caronia v Philip Morris USA Inc, 227, CtApp 12-17-13

 

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Issuer of Excess Policy Was Required (by the Terms of the Policy) to Pay “All Sums,” Including Interest, Over and Above the Policy-Limit Paid Out Under the Primary Policy

In reversing the Appellate Division, the Court of Appeals determined that the issuer of the excess policy (HIC) was obligated to pay all sums, including interest, after the $1,000,000 policy limit was paid out under the primary policy.  The issuer of the primary was insolvent and the $1,000,000 primary policy limit was paid by the liquidator:

Applying the plain meaning of the primary and excess policies to the particular medical malpractice judgment against plaintiff at issue here, it is clear that the primary insurer’s liquidator fulfilled its obligations under the primary policy, thereby triggering HIC’s responsibility to pay the interest in excess of the primary policy’s $1,000,000 liability limit.  Upon entry of the initial judgment against plaintiff, the liquidator paid plaintiff $1,000,000 toward that judgment.  At that point, the liquidator was no longer required to pay interest under the “supplementary payments” provision of the primary policy because that further amount accrued only after the liquidator had already satisfied the liability limit of the primary policy in the manner specified by the “supplementary payments” provision.  Thus, the additional interest on the judgment, as amended, constituted a “sum[ ] in excess of the limits of liability of the Underlying Policy,” which is covered by the excess policy.  Accordingly, HIC had to pay the additional interest.  Ragins… v Hospitals Insurance Company, Inc, 234, CtApp 12-17-13

 

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