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Eliot Spitzer, Former New York Attorney General, Was a Necessary Party in FOIL Proceeding Seeking His Private Emails In Connection With Civil Enforcement Action against AIG Chief Financial Officer

Petitioner, former Chief Financial Officer of AIG, was the subject of a civil enforcement action against him brought in 2005 by then Attorney General Eliot Spitzer.  Supreme Court granted petitioner’s Freedom of Information Law (FOIL) request for access to private emails of Spitzer.  The Third Department determined that, given the nature of the documents requested, and Spitzer’s current status as a private person, he was a necessary party to the action:

Since at this juncture the object of this proceeding is Spitzer’s private email account(s), and the outcome of this appeal could be a directive to respondent to gain access to and review those private accounts, Spitzer would certainly be “inequitably affected by a judgment in th[is] [proceeding]” and “ought to be [a] part[y] if complete relief is to be accorded between the persons who are parties to [this proceeding]” (CPLR 1001 [a]).  As such, Spitzer is a necessary party herein … .  While not raised directly by the parties, “the court may at any stage of a case and on its own motion determine whether there is a nonjoinder of necessary parties” … .  “The rule . . . insures fairness to third parties who ought not to be prejudiced or ’embarrassed by judgments purporting to bind their rights or interest where they have had no opportunity to be heard'” … .

In this matter, resolution of the disputed FOIL demand directly impacts the personal property of Spitzer, now a private citizen who is not before this Court and whose significant private rights and property cannot be said to be protected by the current respondent, which admittedly does not represent Spitzer’s private interests.  However, “[t]his [C]ourt has previously held that a court may not, on its own initiative, add or direct the addition of a party” (…see CPLR 1003).  Accordingly, the matter must be remitted to Supreme Court to order Spitzer to be joined if he is subject to the jurisdiction of the court and, if not, to permit Spitzer’s joinder by stipulation, motion or otherwise and, “if joinder cannot be effectuated, the court must then determine whether the [proceeding] should be permitted to proceed in the absence of necessary parties”… .  Matter of Smith v NYS Office of the Attorney General, 515758, 3rd Dept 10-17-13

 

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Stay During Appellate Process Expires Five Days After Court of Appeals Denies Leave to Appeal

A police officer was dismissed from the force just before his retirement pension vested. The dismissal was vacated by Supreme Court because of flaws in serving the officer with notice of the charges.  The First Department affirmed and the Court of Appeals denied leave to appeal.  The First Department noted that the stay of the proceedings which was in effect during the appeals process (CPLR 5519(a)) terminated five days after the Court of Appeals denied leave (CPLR 5519(e)(ii)).  The commissioner’s failure to hold a new hearing and issue a new dismissal order within thirty days of the denial of leave resulted in the automatic vesting of the officer’s pension. Matter of Toolasprashad v Kelly, 2013 NY Slip Op 06772, 1st Dept 10-17-13

 

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Assignment of Counsel Required Before Determining Whether Appeal Should Be Dismissed as Untimely

The Court of Appeals determined the appellate division was required to assign counsel upon a showing of indigency before ruling on whether defendant’s first-tier appeal as of right should be dismissed for failure to meet the timeliness requirement in the 2nd Department’s rules:

In this case, the Appellate Division erroneously failed to assign counsel to represent defendant before dismissing his first-tier appeal as of right based on his failure to timely perfect it.  Notwithstanding the Appellate Division’s rule mandating automatic dismissal of an untimely perfected appeal (see 22 NYCRR 670.8 [f]), its decision to dismiss the appeal here remained a discretionary determination on the merits of a threshold issue on defendant’s first-tier And an appellate court had not yet passed on, nor had counsel presented, defendant’s appellate claims with respect to dismissal or any other matter, thus leaving defendant ill equipped to represent himself. Because the factors cited in Douglas [372 US 387], Halbert [545 US 605] and Taveras [463 F3d 141], are present in the instant case, the Appellate Division was required to assign defendant an attorney upon a showing of indigence in order to enable him to oppose the court’s motion to dismiss his first-tier appeal as of right, and the court’s failure to appoint counsel to represent defendant without considering his indigency or the merits of dismissal warrants reversal and reinstatement of defendant’s appeal.  Upon remittal to the Appellate Division, that court should decide whether defendant is indigent pursuant to CPLR 1101.  If defendant establishes his indigence, the court must assign counsel to litigate the dismissal motion, and the court should determine, in its discretion, whether dismissal is appropriate. appeal, rather than an automatic bar to appeal … . People v Kordish, 252, CtApp 10-17-2013

 

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Plaintiff’s Chapter 13 Bankruptcy Did Not Preclude Lawsuit—Question of Fact Re: Applicability of Emergency Doctrine

In affirming the denial of summary judgment to the defendant driver who struck plaintiff when the defendant turned toward the shoulder to avoid an on-coming car, the Third Department noted that plaintiff’s Chapter 13 bankruptcy did not preclude the suit and there were questions of fact about the applicability of the emergency doctrine:

Initially, we reject defendants’ assertion that plaintiff lacks the capacity to sue by virtue of his failure to disclose his personal injury claim in his chapter 13 bankruptcy schedule of assets.  “While [c]hapter 7 and [c]hapter 11 debtors lose standing to maintain civil suits – which must be brought and/or maintained by their bankruptcy trustees – it is clear that [c]hapter 13 debtors like plaintiff are not subject to this restriction” … .   Accordingly, Supreme Court properly concluded that plaintiff’s omission in this regard was not fatal. …

“Under the emergency doctrine, a driver who confronts a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration may be relieved of liability if the actions taken in response are reasonable and prudent in the emergency context” … .  The reasonableness of the driver’s conduct, as well as whether he or she could have done something to avoid the accident, typically present questions of fact for a jury to resolve … .  Thus, in order to be granted summary judgment in this regard, “a driver must establish as a matter of law that he or she did not contribute to the creation of the emergency situation, and that his or her reaction was reasonable under the circumstances such that he or she could not have done anything to avoid the collision” …Defendants failed to meet that burden here.  Collins v Suraci, 516138, 3rd Dept 10-17-13

 

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Res Ipsa Loquitur Doctrine Re: Shard of Wood Ingested by Plaintiff Allowed Case to Survive Summary Judgment

In reversing Supreme Court, the Third Department determined the doctrine of res ipsa loquitur sufficiently raised a question of fact about whether a shard of wood, which was swallowed by plaintiff, was negligently present in food prepared by defendant (Cipriani):

Res ipsa loquitur is neither a theory of liability nor a presumption of liability, but instead is simply a permitted inference – that the trier of fact may accept or reject – reflecting a “common-sense application of the probative value of circumstantial evidence” … .  Criteria for res ipsa loquitur to apply are that “(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; [and] (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff” … .  The parties dispute the exclusive control element and, to establish that element, plaintiffs were “not obligated to eliminate every alternative explanation for the event, but only to demonstrate that the likelihood of causes other than the defendant[s’] negligence is so reduced that the greater probability lies at defendant[s’] door, rendering it more likely than not that the injury was caused by defendant[s’] negligence” … .

Here, the event occurred at a banquet hall operated by Cipriani.  Cipriani prepared and provided all of the food. Attendees were not permitted to bring food onto the premises. Individuals undisputedly under Cipriani’s control (pursuant to a contractual arrangement) acted as captains, servers and bartenders.  Cipriani thus exclusively prepared, provided and served the food.  Although the shard possibly could have been present when the ingredients for food were purchased from suppliers, it was not so small as to have been likely concealed and thus not visible upon careful preparation (cf. Restatement [Second] of Torts § 328D, Comment e, Illustration 2).  … There is sufficient proof under these circumstances to find ample control by defendants for purposes of res ipsa loquitur. Brumberg v Cipriani USA Inc, 2013 NY Slip Op 06759, 3rd Dept 10-17-13

 

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New Medicaid Reimbursement Procedures Did Not Violate State Administrative Procedure Act

The Third Department affirmed Supreme Court and determined that a modified Medicaid reimbursement procedure for the school supportive health services program (SSHSP) did not violate the State Administrative Procedure Act because the new administrative directives (referred to as Q & A’s) were not new rules triggering the requirements of the Act:

The documentation and reimbursement eligibility requirements reflected in the challenged Q & As were not required to be promulgated as rules under the State Administrative Procedure Act.  For purposes of rule-making notice and filing requirements (see State Administrative Procedure Act § 202), a rule is defined as “the whole or part of each agency statement, regulation or code of general applicability that implements or applies law, or prescribes . . . the procedure or practice requirements of any agency, including the amendment, suspension or repeal thereof” (State Administrative Procedure Act § 102 [2] [a]).  Expressly excluded from the definition are “rules concerning the internal management of the agency which do not directly and significantly affect the rights of or procedures or practices available to the public” (State Administrative Procedure Act § 102 [2] [b] [i]), and “forms and instructions, interpretive statements and statements of general policy which in themselves have no legal effect but are merely explanatory” (State Administrative Procedure Act § 102 [2] [b] [iv]).  The Court of Appeals has recognized “that there is no clear bright line between a ‘rule’ or ‘regulation’ and an interpretative policy” (Cubas v Martinez, 8 NY3d 611, 621 [2007]).  Courts have previously found administrative directives to be interpretive statements when they rely on and constitute reasonable interpretations of existing regulations or statutes, or merely address the type of documentation needed to establish whether a predetermined test of eligibility has been met … .  Board of Education of the Kiryas Joel Village Union Free School District, 516336, 3rd Dept 10-17-13

 

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In College Disciplinary Action, Victim Need Not Testify—Failure to Detail Factual Findings in Determination Violates Due Process

The Third Department, in a disciplinary action by SUNY Cortland, determined the alleged victim of harassment was not the complainant in the disciplinary proceeding and therefore the alleged victim need not testify in the proceeding.  The court, however, determined the school’s failure to set forth detailed factual findings in its disciplinary determination violated the student’s due process rights. The matter was sent back for those factual findings, after which the student could pursue administrative remedies:

We reject petitioner’s contention that the Hearing Panel failed to substantially adhere to its rules and regulations published in the Code … .  Although petitioner correctly notes that the Code requires the “complainant” to present his or her own case, the “complainant” is defined as “any person or persons who have filed disciplinary charges against a student.”  Here, the complainant was SUNY Cortland’s Director of Judicial Affairs.  Thus, petitioner’s contention that the Hearing Panel did not comply with the Code because the victim did not present the case is unavailing.  Furthermore, as the victim was not called as a witness by either side and nothing in the Code establishes that the victim is a party to a disciplinary proceeding, we find that the Hearing Panel substantially complied with its rule requiring it to afford petitioner the opportunity to question all parties.  …
We do agree, however, that petitioner was denied due process because the Hearing Panel failed to set forth detailed factual findings in its disciplinary determination.  In a disciplinary proceeding at a public institution of higher education, due process entitles a student accused of misconduct to “a statement detailing the factual findings and the evidence relied upon by the decision-maker in reaching the determination of guilt” … .   Recognized as one of the “‘rudimentary elements of fair play'” in this context …, “[s]uch a statement is necessary to permit the student to effectively challenge the determination in administrative appeals and in the courts and to ensure that the decision was based on evidence in the record”… . Matter of Boyd v SUNY Cortland, 514925, 3rd Dept 10-17-13

 

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Resort to Contempt for Failure to Make Payments Appropriate

In finding the resort to contempt for failure to make payments pursuant to a judgment in a matrimonial action was appropriate, the Second Department explained the criteria:

Pursuant to Domestic Relations Law § 245, where a spouse fails to make payments of money pursuant to an order or judgment entered in a matrimonial action, the aggrieved spouse may apply to the court to punish the defaulting spouse for contempt, but only if “it appears presumptively, to the satisfaction of the court,” that payment cannot be enforced by other means such as enforcement of a money judgment or an income execution order (Domestic Relations Law § 245…). In order to punish the defaulting spouse for contempt, the aggrieved spouse is not required to exhaust all alternative remedies; proof that alternative remedies would be ineffectual is sufficient … . Here, the defendant satisfied that burden… . Longman v Longman, 2013 NY Slip Op 06664, 2nd Dept 10-16-13

 

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Waiver of Appeal Not Effective

In finding the defendant did not effectively waive his right to appeal, the Second Department explained:

…[T]he record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal … . The defendant’s purported waiver of the right to appeal is unenforceable, as the record does not indicate that he had ” a full appreciation of the consequences'” of such waiver … . While the defendant signed a written waiver, a written waiver “is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right” … . Accordingly, in the absence of a knowing, voluntary, and intelligent waiver of the right to appeal, the defendant retained his right to challenge the denial of that branch of his omnibus motion which was to suppress identification testimony… . People v Crawford, 2013 NY Slip Op 06705, 2nd Dept 10-16-13

 

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