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THE ATTEMPT TO CORRECT A SENTENCING MISTAKE IN THE DEFENDANT’S ABSENCE VIOLATED DEFENDANT’S CONSTITUTIONAL AND STATUTORY RIGHT TO BE PRESENT (FIRST DEPT). ​

The First Department, vacating defendant’s sentence, determined the attempt to correct a mistake in the term of postrelease supervision in defendant’s absence violated defendant’s constitutional and statutory rights:

As the People concede, defendant’s constitutional and statutory rights to be present at sentencing were violated when the court resentenced defendant in his absence to correct a mistake in the term of postrelease supervision imposed (see CPL 380.40[1] …). Accordingly, the sentence is vacated and the matter is remanded for resentencing with defendant present. On remand, the court shall also address the discrepancy between the five-year term of postrelease supervision imposed on the weapon possession count at the original sentencing and the three-year term of postrelease supervision count reflected in the amended sentence and commitment sheet … . People v McCallum, 2024 NY Slip Op 00816, First Dept 2-15-24

Practice Point: Here the attempt to correct a mistake in the period of postrelease supervision in the defendant’s absence required vacation of the sentence.

 

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CLAIMANT DEMONSTRATED SHE CONTRACTED COVID AT THE WORKPLACE AND WAS ENTITLED TO WORKERS’ COMPENSATION BENEFITS (THIRD DEPT).

The Third Department noted that contracting COVID-19 at the workplace entitled claimant to Worders’ Compensation benefits:

… [S]ubstantial evidence supports the Board’s determination that claimant sustained a work-related injury by contracting COVID-19 in the course of her employment due to specific exposure to COVID-19 in the workplace … . Further, the Board correctly employed the presumption provided by Workers’ Compensation Law § 21 (1), “that an accident that occurs in the course of employment also arises out of that employment” … . Claimant’s treating pulmonary and critical care physician testified that, assuming the facts as claimant and the lay witness testified, which the Board credited, there was a “strong probability” that claimant contracted COVID-19 in the workplace, and the carrier did not submit contrary testimony negating a causal relationship … . Although the medical providers could not offer a conclusive medical opinion as to where claimant contracted COVID-19 so as to establish a causal connection between her contraction of COVID-19 and her employment, the testimony credited by the Board combined with the statutory presumption sufficiently established that she contracted COVID-19 at work from a coworker, and the medical providers’ testimony established that her injuries were the result of, and arose out of, contracting COVID-1 … . Matter of Leonard v David’s Bridal, Inc., 2024 NY Slip Op 00837, Third Dept 2-15-24

Practice Point: This decision demonstrates it is possible to prove COVID was contracted at the workplace entitling the worker to Workers’ Compensation benefits.

 

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A RESTAURANT PROPERTY-INSURANCE POLICY WHICH COVERS “DIRECT PHYSICAL LOSS OR DAMAGE” DOES NOT COVER THE LOSS OF BUSINESS CAUSED BY COVID-19 (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, determined the cessation of in-person dining services because of COVID-19 did not constitute “direct physical loss or damage” within the meaning of plaintiff’s property insurance policy:

We do not take lightly the severe economic losses incurred by restaurants and other businesses serving the public as a result of the COVID-19 pandemic. But our task is to faithfully interpret the terms of the insurance policy before us, not to “rewrite the language of the polic[y] at issue” to reach a result with “equitable appeal” … . The coverage provisions relied upon by [plaintiff] CRO [Consolidated Restaurant Operations] only cover economic losses to the extent they are caused by “direct physical loss or damage” to insured property. We conclude that the business interruption caused by the actual presence of the coronavirus on the premises of CRO’s insured property, as alleged in the complaint, is insufficient to trigger such coverage. Consolidated Rest. Operations, Inc. v Westport Ins. Corp., 2024 NY Slip Op 00795, CtApp 2-15-24

Practice Point: Property insurance covering “direct physical loss or damage” does not cover a restaurant’s loss of business caused by COVID-19.

 

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A LETTER FROM AN ATTORNEY THREATENING LITIGATION CAN CONSTITUTE “RETALIATION” AGAINST THOSE WHO MAKE HOUSING DICSRIMINATION COMPLAINTS PURSUANT TO THE HUMAN RIGHTS LAW (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, reversing the Appellate Division, determined a letter sent by an attorney for the landlord, Pine Ridge, to the respondent CityVision, a not-for-profit corporation which tests whether housing facilities engage in discrimination, constituted “retaliation” against those who make discrimination complaints. Here a CityVision employee, Renner, posed as a prospective tenant and allegedly was steered to a different apartment complex because she had children (discrimination based on familial status). CityVision’s complaint to the NYS Division of Human Rights (DHR) was dismissed. An attorney for Pine Ridge then sent a letter to CityVision which mentioned seeking damages. CityVision then filed a second complaint alleging the letter constituted “retaliation:” Although the matter was remitted to DHR because it was CityVision’s, not Pine Ridge;s, burden to show it was engaged in a protected activity, the Court of Appeals held that the threat of litigation can constitute “retaliation” in this context.

… [A] plaintiff bears the burden to establish a prima facie retaliation claim … . To meet that burden, the plaintiff must show that (1) they have “engaged in protected activity,” (2) the defendant “was aware that” the plaintiff “participated in” the protected activity, (3) the plaintiff suffered adverse action based upon the activity, and (4) “there is a causal connection between the protected activity and the adverse action” (id.). Only the first and third elements of CityVision’s retaliation claim are at issue here. ***

… [T]he record established that [the attorney’s] letter “shocked” CityVision’s employees and forced CityVision to expend resources and “scramble . . . to locate counsel” to address the threat. … [I]t was rational for DHR to conclude that the threatening letter caused CityVision to divert resources and could have dissuaded a person from pursuing a discrimination claim to protect their rights under the Human Rights Law. Indeed, a potential plaintiff might be chilled from filing a discrimination complaint when weighing the harm caused by the threat of retaliatory litigation, let alone the injury potentially occasioned by actual retaliatory litigation. DHR’s determination that the litigation threat amounted to adverse action in this case was rational and, thus, supported by substantial evidence. Matter of Clifton Park Apts., LLC v New York State Div. of Human Rights, 2024 NY Slip Op 00793, CtApp 2-15-24

Practice Point: Here a not-for-profit filed a complaint against a landlord alleging housing discrimination. After the complaint was dismissed, an attorney for the landlord sent a letter to the not-for-profit arguably threatening litigation. The letter constituted “retaliation” within the meaning of the Human Rights Law.

 

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PARTIAL PAYMENT OF A DEBT WITHIN THE STATUTE OF LIMITATIONS PERIOD MAY REVIVE OR TOLL THE STATUTE OF LIMITATIONS FOR AN ACTION BASED UPON THE DEBT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this suit against his employer seeking payment for work performed raised a question of fact whether the statute of limitations was revived by defendants’ partial payment:

There is a “long-standing common law rule” that partial payment of a debt, if made under “circumstances from which a promise to honor the obligation may be inferred,” will operate to start the statute of limitations running anew from the time the partial payment is made … . To show that the statute of limitations has been renewed by a partial payment, it must be shown that the payment was accompanied by circumstances amounting to “an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder” … .

Here, the plaintiff alleged that, over a course of years, the defendants made repeated assurances that they would pay him salary and bonus money that he was owed pursuant to his employment arrangement. Further, he alleged that the defendants made a partial payment of outstanding bonus money to the plaintiff on July 17, 2015, within the statute of limitations. Under these circumstances, the plaintiff raised a question of fact as to whether the statute of limitations was tolled or revived … . Costello v Curan & Ahlers, LLP, 2024 NY Slip Op 00758, Second Dept 2-14-24

Practice Point: Partial payment of a debt made within the statute of limitations period may revive or toll the statute of limitations for an action based on the debt.

 

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DEFENDANT LIMITED LIABILITY COMPANY’S FAILURE TO UPDATE ITS ADDRESS FOR SERVICE OF PROCESS ON FILE WITH THE SECRETARY OF STATE FOR TEN YEARS WAS NOT A REASONABLE EXCUSE SUFFICIENT TO SUPPORT DENIAL OF PLAINTIFF’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant limited liability company’s (FAC’s) failure to update its address for service of process on file with the Secretary of State was not a reasonable excuse sufficient to defeat a motion for leave to enter a default judgment:

Generally, a corporation’s failure to receive copies of process served upon the Secretary of State due to a breach of its own obligation to keep a current address on file with the Secretary of State does not constitute a reasonable excuse for its delay in appearing or answering the complaint, although “there is no per se rule” … . In determining whether a reasonable excuse was demonstrated, “a court should consider, among other factors, the length of time for which the address had not been kept current” … .  * * *

… FAC failed to meet its burden of establishing a reasonable excuse … . FAC’s failure to file with the Secretary of State the current address of the agent designated to receive service of process on its behalf for a period of at least 10 years, without providing any explanation of its failure, does not constitute a reasonable excuse … . Bachvarov v Khaimov, 2024 NY Slip Op 00753, Second Dept 2-14-24

Practice Point: Failure to update an LLC’s address for service of process on file with the Secretary of State is not a reasonable excuse for a default.

 

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AS LONG AS PLAINTIFF TAKES SOME ACTION THAT WOULD LEAD TO ENTRY OF A DEFAULT JUDGMENT WITHIN ONE YEAR AND NINETY DAYS OF THE DEFAULT, THE ACTION SHOULD NOT BE DISMISSED AS ABANDONED (SECOND DEPT).

The Second Department, reversing the sua sponte dismissal of the foreclosure complaint, noted that as long as a plaintiff initiates some action for the entry of judgment within one year and ninety days after a default, the action should not be dismissed as abandoned. Here the plaintiff made a request for judicial intervention within one year and ninety days:

… [P]laintiff demonstrated that, within one year after the defendants’ default, it filed a request for judicial intervention which sought a foreclosure settlement conference within the foreclosure action as mandated by CPLR 3408. “Where, as here, a settlement conference is a necessary prerequisite to obtaining a default judgment (see CPLR 3408[a], [m]), a formal judicial request for such a conference in connection with an ongoing demand for the ultimate relief sought in the complaint constitutes ‘proceedings for entry of judgment’ within the meaning of CPLR 3215(c)” … . Since the plaintiff demonstrated that it initiated proceedings for the entry of a judgment of foreclosure and sale within one year after the defendants’ default, it was not required to proffer a reasonable excuse or demonstrate a potentially meritorious cause of action (see CPLR 3215[c] …). US Bank N.A. v Jerriho-Cadogan, 2024 NY Slip Op 00790, Second Dept 2-14-24

Practice Point: Here in this foreclosure action the bank made a request for judicial intervention within one year and ninety days of the default. The action should not have been dismissed as abandoned.

 

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THE SEARCH WARRANT SEEKING CELL SITE LOCATION INFORMATION (CSLI) FROM THE NEW JERSEY CELL PHONE COMPANY WAS FAXED TO NEW JERSEY FROM NEW YORK; THEREFORE THE WARRANT WAS “EXECUTED” IN NEW YORK AND DID NOT VIOLATE THE NEW YORK CONSTITUTION OR CPL ARTICLE 690 (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice LaSalle, determined the search warrant for cell site location information (CSLI) was executed in New York, where the warrant was faxed from, not in New Jersey, where the T-Mobile records were located. Therefore there was no violation of the New York Constitution or Criminal Procedure Law 690.2-(1). The CSLI was used to place the defendant at the location of the stabbing at the time of the stabbing:

Just as the term “executed” is not defined in CPL article 700, it is also not defined in the New York Constitution or CPL article 690. Nevertheless, in determining where a warrant is “executed” within the meaning of CPL 700.05(4), the Court of Appeals looked to where the actions of the law enforcement officers took place. It follows that in determining where a search warrant is “executed” within the meaning of the New York Constitution and CPL 690.20(1), we similarly must look to where the actions of the law enforcement officers took place. Here, the action of the subject law enforcement officer—the act of faxing the search warrant to T-Mobile—took place in New York … .

The “core” of the Fourth Amendment is to “protect the right of privacy from arbitrary police intrusion” … . A service provider accessing and retrieving its subscribers’ CSLI and call detail information located in the service provider’s own business records does not implicate its subscribers’ right to privacy protected by the Fourth Amendment … . It is only when agents of the government act that the subscribers’ Fourth Amendment rights are implicated. Since the actions of the government’s agents that encroached on the defendant’s Fourth Amendment rights—the faxing of the warrant—took place in New York, we conclude that this is where the search warrant was executed. People v Riche, 2024 NY Slip Op 00785, Second Dept 2-14-24

Practice Point: Here a search warrant seeking cell site location information (CSLI), which was faxed from New York to the cell phone company in New Jersey, was “executed” in New York and therefore did not violate the New York Constitution or Criminal Procedure Law Article 690.

 

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THE STATEMENT GIVEN BY THE DEFENDANT WHEN HE WAS UNDER MEDICATION AT THE HOSPITAL SHOULD HAVE BEEN SUPPRESSED; AT TRIAL THE JURY SHOULD HAVE BEEN INSTRUCTED TO REJECT THE STATEMENT IF THEY FOUND IT WAS INVOLUNTARILY MADE; AND THE DEFENSE BATSON CHALLENGE TO THE EXCLUSION OF FOUR AFRICAN-AMERICAN PROSPECTIVE JURORS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined: (1) the statement given by the defendant when he was under medication at the hospital should have been suppressed; (2) at trial the judge should have instructed the jury to reject the statement if they found the statement was not voluntarily made; and (3) the defense Batson challenge to the prosecutor’s exclusion of four African-American prospective jurors should have been granted:

At the time of the interrogation, the defendant had recently been in a medically induced coma, had come out of surgery only hours before, and his condition “was still sufficiently serious that he was in the intensive care unit” … . The defendant “was lying on his back on a hospital bed, encumbered by tubes, needles, and breathing apparatus” when the detective approached him … . At the time of the police questioning, the defendant was drowsy from painkillers administered to him, his right arm was handcuffed to the hospital bed, and his left arm was bandaged and immobilized from the earlier surgery. The defendant was positioned upright so that the detective could question him, and when the defendant expressed that this caused him pain and requested medical assistance, the detective denied the request and coerced the defendant by stating that he would obtain medical assistance after he had questioned the defendant. * * *

Where, as here, the defendant has placed in issue the voluntariness of his statements to law enforcement officials, “the court must submit such issue to the jury under instructions to disregard such evidence upon a finding that the statement was involuntarily made” … . * * *

… [T]he record demonstrates that the articulated reasons were not applied equally to exclude other prospective jurors … . Under these circumstances, the prosecutor’s explanations as to the four prospective jurors were pretextual, and the defendant is entitled to a new trial on this ground … . People v Parker, 2024 NY Slip Op 00783, Second Dept 2-14-24

Practice Point: The statement given by defendant when he was under medication at the hospital should have been suppressed.

Practice Point: At trial, where defendant has placed the voluntariness of his statement in issue, the jury must be instructed to reject the statement if they find it was not voluntarily made.

Practice Point: Here the prosecutor accepted a juror who was a college student living at home but who was not African-American, and the prosecutor rejected four African-American prospective jurors because they were college students living at home with limited life experience. The Batson challenge should have been granted.

 

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THE APPELLANT RAISED A QUESTION OF FACT ABOUT WHETHER SHE WAS SERVED WITH THE SUMMONS AND COMPLAINT ENTITLING HER TO A HEARING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the appellant had raised a question of fact about whether she was served with the summons and complaint requiring a hearing:

Here, the process server’s affidavit of service, in which he averred that he personally served the appellant, constituted prima facie evidence of valid service pursuant to CPLR 308(1) … . However, the Supreme Court erred in determining this branch of the motion without first conducting a hearing. The appellant demonstrated her entitlement to a hearing on the issue of service by submitting, among other evidence, her sworn denial, setting forth significant discrepancies between the description of the person allegedly served and the appellant’s physical appearance … . Under these circumstances, the appellant is entitled to a hearing on the issue of whether service was properly effected pursuant to the personal delivery provisions of CPLR 308(1) … . Matter of Rockman v Nassau County Sheriff’s Dept., 2024 NY Slip Op 00770, Second Det 2-14-24

Practice Point: Here, although plaintiff demonstrated proper service of process, the appellant raised a question of fact about whether she in fact was personally served by noting the process server’s description of the person served did not match her appearance.

 

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