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WHERE THERE ARE UNRESOLVED QUESTIONS OF FACT CONCERNING ELIGIBILITY FOR WORKERS’ COMPENSATION BENEFITS THE WORKERS’ COMPENSATION BOARD HAS PRIMARY JURISDICTION AND MUST RULE BEFORE ANY RELATED ACTION CAN BE BROUGHT IN SUPREME COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Workers’ Compensation Board had primary jurisdiction and must rule on defendant’s eligibility for benefits before Supreme Court can hear an action by the insurer for reimbursement of no-fault payments made to defendant:

In July 2018, the subrogors of the plaintiff no-fault insurer, State Farm Mutual Automobile Insurance Company, allegedly were injured in a motor vehicle accident while traveling in a vehicle insured by the plaintiff. After the plaintiff provided payments for medical services on behalf of the subrogors, it learned that the subrogors had applied for workers’ compensation benefits and that the Workers’ Compensation Board had directed the defendant workers’ compensation insurer, Amtrust North America, Inc., to pay for necessary medical treatments for the subrogors. Thereafter, the plaintiff demanded that the defendant reimburse it for the full amount of no-fault benefits the plaintiff had provided on behalf of its subrogors. * * *

“[W]here the availability of workmen’s compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law, the plaintiff may not choose the courts as the forum for the resolution of such questions” … . “Since ‘primary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board,’ it is ‘inappropriate for the courts to express views with respect thereto pending determination by the board'” … . State Farm Mut. Auto. Ins. Co. v Amtrust N. Am., Inc., 2024 NY Slip Op 00646, Second Dept 2-7-24

Practice Point: Where there are unresolved questions of fact about a party’s eligibility for Workers’ Compensation benefits, any action in Supreme Court should be transferred to the Workers’ Compensation Board, which is vested with primary jurisdiction.

 

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THE FORUM SELECTION CLAUSE IN THE NURSING HOME ADMISSION AGREEMENT WAS VALID AND ENFORCEABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the forum selection clause in the nursing-home admission was valid and enforceable:

“‘A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court’ … . …

In opposition to the defendant’s prima facie showing of the parties’ agreement which includes a forum selection clause, the plaintiff was required to show that enforcement of the forum selection clause would be unreasonable, unjust, or would contravene public policy, or that the forum selection clause was the result of fraud or overreaching … . Here, the plaintiff failed to do so. Johnson v Seagate Rehabilitation & Nursing Ctr., 2024 NY Slip Op 00620, Second Dept 2-7-24

Practice Point: To contest a forum selection clause in a nursing home admission agreement, the plaintiff must show that enforcement of the forum selection clause would be unreasonable, unjust, or would contravene public policy, or that the forum selection clause was the result of fraud or overreaching.

 

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PURSUANT TO THE BUSINESS JUDGMENT RULE, INDIVIDUAL CONDOMINIUM BOARD MEMBERS MAY BE LIABLE FOR UNEQUAL TREATMENT OF SHAREHOLDERS IN THE ASSESSMENT OF COMMON CHARGES (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined individual condominium board members could be liable under the business judgment rule for unequal treatment of shareholders with respect to the assessment of common charges:

“The business judgment rule is applicable to the board of directors of cooperative and condominium corporations” … . The rule provides that “a court should defer to a [condominium] board’s determination ‘[s]o long as the board acts for the purposes of the [condominium], within the scope of its authority and in good faith'” … . Unequal treatment of shareholders is sufficient to overcome the directors’ insulation from liability under the business judgment rule … , and a director who participates in the commission of a tort committed by the board may be held individually liable … .

Here, the complaint sufficiently alleged a cause of action sounding in breach of fiduciary duty against the individual defendants. The complaint also sufficiently alleged a cause of action sounding in fraud against the individual defendants to the extent that the plaintiff seeks damages for the overassessment of common charges … . 72 Poplar Townhouse, LLC v Board of Mgrs. of the 72 Poplar St. Condominium, 2024 NY Slip Op 00606, Second Dept 2-7-24

Practice Point: Here the complaint stated causes of action for breach of fiduciary duty and fraud against individual condominium board members for unequal treatment of shareholders in the assessment of common charges.

 

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THE DEFENSE CHALLENGE TO A JUROR WHO EXPRESSED SERIOUS DOUBTS ABOUT BEING ABLE SERVE SHOULD HAVE BEEN GRANTED, DESPITE HER ULTIMATE STATEMENT SHE COULD DO WHAT IS NECESSARY TO SERVE; THE NEW CPL ARTICLE 245 DISCOVERY STATUTES IMPOSE NEW BURDENS ON THE PEOPLE ENCOMPASSING ROSARIO AND BRADY MATERIAL AND EXTENDING TO DOCUMENTS WHICH ARE NOT IN THE PEOPLE’S POSSESSION, EVEN WHERE THE DEFENSE CAN ACCESS THOSE DOCUMENTS (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction and ordering a new trial, offered important, substantial discussions of (1) how to handle a juror who expresses doubt about the ability to serve on the jury, and (2) the new, much broader and far-reaching disclosure requirements imposed upon the People by the CPL Article 245. The juror expressed doubt about her ability to serve because of her family obligations, her indecisiveness and her inability to follow the orders and instructions of the court. Ultimately when asked if she thought she could do what is necessary to be a juror, she said “yes.” The Fourth Department held the defense challenge to the juror should not have been denied. On the CPL Article 245 issue, the Fourth Department explained that the statute goes far beyond the old, pre-statute, criteria for turning over Rosario and Brady material, to include collecting and turning over discovery from agencies outside the prosecutor’s office, even if the defendant could gain access to those that discovery him or herself: The Fourth Department held the prosecutor committed numerous violations of CPL Article 245 and left it to the judge in the next trial to impose sanctions:

… [T]he prospective juror never stated, unequivocally or otherwise, that she would follow the court’s instructions and apply the law to the facts. Nor did she state that her child care concerns had been alleviated such that she could devote her undivided attention to the trial.

Just as a “general statement of impartiality that does not explicitly address the specific cause of the preexisting bias is not sufficient” … , a general statement from a prospective juror that they can do what it takes to be a juror is not sufficient to rehabilitate the prospective juror where, as here, the prospective juror had previously offered specific reasons for being unable to serve impartially. * * *

Although transcripts that are not in the People’s possession and control are not subject to Brady and Rosario disclosure requirements … , that fact is of no moment for purposes of CPL 245.20. Even where documents are “beyond the prosecutor’s control under Rosario and constructive possession under CPL 245.20 (2), the presumption of openness, … the duty to maintain the flow of information … , the continuing duty to disclose … , and, perhaps most importantly, the goals of article 245 require that when the prosecutor becomes aware [after making the requisite reasonable inquiries] that an agency outside their control holds information that relates to the subject matter of the case, best practice dictates that the People take steps . . . to obtain those records notwithstanding the fact [that] the information may be available to the defendant by equivalent process” … . People v Heverly, 2024 NY Slip Op 00524, Fourth Dept 2-2-24

Practice Point; A juror who expresses serious doubts about being able to serve, doubts which are not addressed by further questioning, should be excluded, even if the juror ultimately states he or she can do what is necessary to serve.

Practice Point: CPL Article 245 has drastically expanded the burden on the People to timely turn over discovery, including Rosario and Brady material and documents which are not in the People’s possession, even where the defense also has access to those documents. The is an important discussion of the new criminal discovery rules which should be required reading for defense counsel, prosecutors and judges.

 

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AN OFFICER’S OBSERVATION OF DEFENDANT’S CAR FOLLOWING ANOTHER CAR TOO CLOSELY (A TRAFFIC INFRACTION) PROVIDED PROBABLE CAUSE FOR A TRAFFIC STOP, EVEN IF THERE WERE OTHER MOTIVATIONS FOR THE STOP (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant’s motion to suppress in this traffic stop case should not have been granted. The traffic stop was based upon the deputy sheriff’s observation of defendant’s car less than one car length from the car in front while both cars were going 65 mph, which constitutes a traffic infraction (following too closely). The Fourth Department noted that a traffic infraction provides probable cause for traffic stop, even if the officer has another motive for the stop (apparently the case here):

The deputy, having personally observed defendant violate Vehicle and Traffic Law § 1129 (a), thus had probable cause to stop defendant’s vehicle … .

… [T]o the extent the court’s decision also found the stop unlawful on the basis that it was pretextual, that was error. It is well settled that ” ‘where a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation, a stop does not violate [the state or federal constitutions, and] . . . neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant’ ” … . In light of the deputy having personally observed defendant commit a traffic violation, the stop was properly based upon probable cause, and the deputy’s other motivations in stopping the vehicle, if any, were irrelevant to determining whether the stop was lawful … . People v Williams, 2024 NY Slip Op 00581, Fourth Dept 2-2-24

Practice Point: If a police officer observes a driver commit a traffic infraction (here following too closely), the officer has probable cause to stop the car, even if the officer has other motivations for the stop.

 

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THE OBVIOUS BIAS OF THE JUDGE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING DEPRIVED MOTHER OF HER RIGHT TO DUE PROCESS OF LAW (FOURTH DEPT). ​

The Fourth Department, reversing Family Court in this termination of parental rights proceeding, determined the bias of the judge deprived mother of due process of law. In another decision issued on February 2, 2024, the Fourth Department criticized the same Family Court judge for abandoning her judicial role and acting as an advocate in a child placement proceeding (Matter of Zyion B …, 2024 NY Slip OP 00550):

… [T]he record demonstrates that Family Court “had a predetermined outcome of the case in mind during the hearing” … . During a break in the hearing testimony, a discussion occurred on the record with regard to a voluntary surrender. When the mother changed her mind and stated that she would not give up her child, the court responded, “Then I’m going to do it.” At that point, the only evidence that had been presented was the direct testimony of one caseworker. The court’s comments, in addition to expressing a preconceived opinion of the case, amounted to a threat that, should the mother continue with the fact-finding hearing, the court would terminate her parental rights … . Those comments were impermissibly coercive (see generally Social Services Law § 383-c [6] [d]). That the court made good on its promise to terminate the mother’s parental rights cannot be tolerated.

The record further demonstrates that the Family Court Judge was annoyed with the mother’s refusal to surrender her parental rights to the child. We are compelled to remind the Family Court Judge “that even difficult or obstreperous litigants are entitled to ‘patient, dignified and courteous’ treatment from the court, and that judges must perform their duties ‘without bias or prejudice’ ” … . Matter of Anthony J. (Siobvan M.), 2024 NY Slip Op 00574, Fourth Dept 2-2-24

Practice Point: Here the judge made it clear she had already decided mother’s parental rights should be terminated at the outset of the hearing. The judge’s bias deprived mother of her right to due process of law.

 

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FAMILY COURT JUDGE CRITICIZED BY THE FOURTH DEPARTMENT FOR ABANDONING HER ROLE AS A JUDGE AND ACTING AS AN ADVOCATE (FOURTH DEPT). ​

Although the appeal was moot, the Fourth Department took the opportunity to criticize the Family Court judge for acting as an advocate in this child placement proceeding:

At the hearing, the Judge “took on the function and appearance of an advocate” by choosing which witnesses to call and “extensively participating in both the direct and cross-examination of . . . witnesses” … , with a clear intention of strengthening the case for removal. For example, she asked a … caseworker whether the mother was “hostile, aggressive, violent or out of control,” and repeated questions to that caseworker using the same or similar phrasing at least 10 times. When the mother’s counsel objected to the Judge’s leading questions of another witness regarding incidents outside the relevant time period, the Judge overruled the objection, stating that “there’s no one else to run the hearing except for me.” She also introduced and admitted several written documents during the mother’s testimony over the objection of the mother’s counsel, and despite the mother’s statement that she could not read and was not familiar with the documents. In short, the Judge “essentially ‘assumed the parties’ traditional role of deciding what evidence to present’ ” while simultaneously acting as the factfinder … and thereby “transgressed the bounds of adjudication and arrogated to [herself] the function of advocate, thus abandoning the impartiality required of [her]” … .

This ” ‘clash in judicial roles,’ ” in which the Judge acted both as an advocate and as the trier of fact, “[a]t the very least . . . created the appearance of impropriety” … , particularly when the Judge aggressively cross-examined the mother regarding topics that were not relevant to the issue of the child’s removal and seemed designed to embarrass and upset the mother … . One such area of cross-examination concerned the fact that the mother had become pregnant several months before the hearing, but had been forced to terminate the pregnancy when it was determined to be ectopic. The Judge repeatedly questioned the mother regarding how many times the mother had engaged in sexual intercourse with the father of the terminated fetus, even though such information does not appear to have been relevant to the issue of the subject child’s placement inasmuch as, inter alia, there was no indication that the man was ever in the subject child’s presence. The Judge also asked the mother baseless questions about whether that man was a pedophile. Matter of Zyion B. (Fredisha B.), 2024 NY Slip Op 00550, Fourth Dept 2-2-24

Practice Point: Here the Fourth Department criticized the Family Court judge for acting as an advocate in this child placement proceeding.

 

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ALLEGATIONS THAT RESPONDENT INSTALLED SOFTWARE ON PETITIONER’S COMPUTER ALLOWING RESPONDENT TO CONTROL THE COMPUTER REMOTELY, AND ALLEGATIONS RESPONDENT MADE PHONE CALLS TO PETITIONER INTENDED TO BE THREATENING, SUFFICIENTLY ALLEGED THE FAMILY OFFENSES OF HARASSMENT AND STALKING (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the petition sufficiently alleged harassment and stalking family offeses based upon allegations respondent, petitioner’s estranged husband, installed software on petitioner’s computer allowing him to control the computer remotely, and made phone calls to petitioner intended to be threatening:

… [P]etitioner alleged that respondent installed spyware on her Apple laptop computer and that petitioner first noticed in mid-April 2021 that her username had been changed to “Creep” and that all documents related to the divorce proceedings between the parties had been deleted. Petitioner further alleged that, after taking the laptop to a computer store to have the laptop reset, she noticed about a week later that the laptop began showing the matrimonial files, which then disappeared again. Petitioner alleged that respondent was again controlling her laptop remotely. Petitioner also alleged a series of other related incidents. For example, she noticed in late April 2021 that her iPhone password had changed; she received a “spoofed” text message in early May 2021 and she discovered about a day later that respondent had accessed her Dropbox account; and she received another alarming or annoying text message in mid-May 2021 that referred to respondent’s pet name for her. Petitioner thus alleged more than an isolated incident and, upon ” ‘[l]iberally construing the allegations of the [second] family offense petition and giving it the benefit of every possible favorable inference,’ ” we conclude that the second petition alleges acts that, if committed by respondent, would constitute the family offense of harassment in the second degree … . Matter of Dhir v Winslow, 2024 NY Slip Op 00531, Fourth Dept 2-2-24

Practice Point: Remotely controlling petitioner’s computer and making phone calls intended to be threatening may constitute the family offenses of harassment and stalking.

 

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THE JUDGE’S FAILURE TO READ THE NOTE FROM THE JURY VERBATIM WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL OF DEFENDANT’S MURDER CONVICTION (FOURTH DEPT).

The Fourth Department, reversing defendant’s murder conviction, determined the judge committed a mode of proceedings error by paraphrasing the note from the jury instead of reading it verbatim:

The jury note … stated … “[w]e, the Jury, request: to hear the read-back of [a restaurant worker’s] cross-examination where she is asked how many times she had seen the defendant at the restaurant. She indicates that she had seen him 2 times while she was working at the counter, and multiple times while she was not at the counter but through the security camera play-back. We wish to hear this portion read back. We also request to hear the portion of the cross-examination where she is asked and answers when she identified [a shooter shown in the surveillance video] as the defendant to the police” … . The court did not read the note aloud verbatim and the record does not reflect that the court showed the note to the parties. Rather, the record reflects that the court addressed the note before counsel and the jury by stating, “the readback that you have requested of [the restaurant worker’s] cross-examination where she is asked how many times she had seen the defendant at the restaurant will now be read back for you along with the second portion of that which reads, ‘We also request to hear that portion of the cross-examination where she is asked and answers when she identified [the shooter] as the defendant to the police.’ We’ll read both those portions.” The court failed to read the second and third sentences contained within the jury note. We conclude that by improperly paraphrasing the jury note, the court failed to give meaningful notice of the note … . People v Crawford, 2024 NY Slip Op 00528, Fourth Dept 2-2-24

Practice Point: Here the judge’s failure to read the note from the jury verbatim was deemed a mode of proceedings error requiring reversal of a murder conviction.

 

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THE 10-DAY PERIOD DURING WHICH PETITIONER POLICE OFFICER MUST APPLY FOR DISABILITY BENEFITS STARTED TO RUN WHEN HE LEARNED HE HAD SUFFERED PERMANENT LUNG DAMAGE, NOT WHEN HE FIRST CONTRACTED COVID; PETITIONER’S APPLICATION FOR DISABILITY BENEFITS SHOULD NOT HAVE BEEN DENIED AS UNTIMELY (THIRD DEPT). ​

The Third Department, reversing Sullivan County’s denial of disability benefits for petitioner police officer (Ramos), determined the time when petitioner learned he had permanent lung damage (September 9, 2021), not the time when he contracted COVID (August 9, 2021), was the operative date for timely application for General Municipal Law 207-c disability benefits:

Code of the County of Sullivan § 70-7 requires, among other things, applications for benefits under General Municipal Law § 207-c to be made “within 10 days from the date of the incident alleged to have given rise to the claim of disability or illness, or from the time such condition is discovered, whichever date is later. * * *

… [I]t was improper for the Director to use August 9, 2021 as the incident date that commenced the 10-day period within which Ramos was required to file his application for benefits. Ramos’ application clearly stated that he was informed on September 9, 2021 about his lung damage stemming from his contraction of COVID-19, and it was on this date that Ramos first discovered the disability (i.e., possible lung damage) that gave rise to his claim and application for benefits. Ramos’ September 17, 2021 application was made within 10 days of September 9, 2021 … . Matter of Sullivan County Patrolmen’s Benevolent Assn., Inc. v County of Sullivan, 2024 NY Slip Op 00481, Third Dept 2-1-24

Practice Point: Any time period during which a police officer must apply for disability benefits starts to run when the officer first learns of his permanent disability, not when the officer first became ill.

 

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