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Malicious Prosecution Action Against County, Medical Examiner and District Attorney Survived Motion to Dismiss/Prosecutorial and Governmental Immunity Doctrines Explained

The Fourth Department affirmed Supreme Court’s denial of a motion to dismiss a malicious prosecution (intentional tort) action against two counties, a district attorney and a medical examiner.  The action was commenced after plaintiff was arrested and indicted for the death of his seven-month-old daughter (the indictment was subsequently dismissed).  In explaining the nature of the action, the Fourth Department wrote:

Once a suspect has been indicted, the grand jury action creates a presumption of probable cause….  “If plaintiff is to succeed in his malicious prosecution action after he has been indicted, he must establish that the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith” … .  Here, the complaint sufficiently alleges fraud, perjury, and conduct undertaken in bad faith. Plaintiff alleged that the police concluded in their initial investigation, based upon statements by [the medical examiner], that the infant’s death was accidental, and the case was closed. However, after plaintiff’s wife spoke with [the district attorney], [the district attorney] allegedly began a campaign to bring charges against plaintiff despite knowing that plaintiff’s wife was giving inconsistent information. Plaintiff alleged that [the district attorney] encouraged or coached [the medical examiner] to provide false information to the police and false testimony to the grand jury regarding the infant’s cause of death and time of death. Plaintiff further alleged that [the district attorney] and [the medical examiner] were aware that the information was not mentioned in the autopsy report, was not supported by any document, and had no scientific basis.

In concluding the prosecutorial and governmental-function immunity doctrines did not require the dismissal of the complaint, the Fourth Department described the elements of both as follows:

Prosecutorial immunity provides absolute immunity “for conduct of prosecutors that was ‘intimately associated with the judicial phase of the criminal process’ ” …, i.e., conduct that involves “ ‘initiating a prosecution and in presenting the State’s case’ ” ….  Thus, a prosecutor’s conduct in preparing for those functions may be absolutely immune, but acts of investigation are not ….  Prosecutors are afforded only qualified immunity when acting in an investigative capacity…   The focus is on the conduct for which immunity is claimed … .It is therefore the case that, where the prosecutor advises the police … or performs investigative work in order to decide whether a suspect should be arrested …, the prosecutor is not entitled to absolute immunity.  * * *The governmental function immunity defense “shield[s] public entities from liability for discretionary actions taken during the performance of governmental functions” …. This limitation on liability “ ‘reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second- guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury’ ”….

“Whether an action of a governmental employee or official is cloaked with any governmental immunity requires an analysis of the functions and duties of the actor’s particular position and whether they inherently entail the exercise of some discretion and judgment . … If these functions and duties are essentially clerical or routine, no immunity will attach” …. Discretionary acts “involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” …. If a functional analysis shows that the employee’s position is sufficiently discretionary, then the municipal defendant must also show “that the discretion possessed by its employees was in fact exercised in relation to the conduct on which liability is predicated” )….

“[G]overnmental immunity does not attach to every action of an official having discretionary duties but [attaches] only to those involving an exercise of that discretion” …. .

Here, the functions and duties of…the Medical Examiner include conducting an autopsy, reporting his findings to the police, and testifying before a grand jury.  The functions and duties of …an assistant district attorney include evaluating the evidence assembled by police officers. Those functions and duties are discretionary …..

Based on plaintiff’s allegations, however, it cannot be said that the conduct of [the medical examiner] and [the district attorney] was related to an exercise of their discretionary duties. Plaintiff alleged that [the medical examiner] fabricated findings and gave testimony that was not included in his autopsy report, and that [the district attorney] coached [the medical examiner] to lie. That alleged conduct plainly did not involve the exercise of “reasoned judgment which could typically produce different acceptable results” …..  Kirchner v County of Niagara …, 561, 4th Dept 6-28-13

 

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Statute of Limitations for Article 78 “Mandamus to Compel;” Doctrine of Laches Applied

The Fourth Department affirmed the dismissal (as untimely) of an Article 78 proceeding against the City of Buffalo and others which sought to compel the city to investigate two fires pursuant to General Municipal Law section 204-d.  The Fourth Department explained when the four-month statute of limitations in this “mandamus to compel” action was triggered and applied the doctrine of laches:

…[T]the petition is in the nature of mandamus to compel inasmuch as petitioner seeks to “compel the performance of a ministerial act [imposed] by law”… . In such a proceeding, the four-month statute of limitations begins to run when a respondent refuses a petitioner’s demand that it “perform its duty” (CPLR 217 [1];…). The petitioner’s “demand must be made within a reasonable time after the right to make the demand occurs”…. Here, petitioner made a February 8, 2010 written demand to the Erie County District Attorney’s Office to conduct a further investigation. The Erie County District Attorney’s Office, however, is not a named respondent, and we conclude that petitioner “unreasonably delayed” in failing to make the demand to respondents on February 8, 2010 and that “this proceeding is barred by laches” ….  Matter of Van Tol v City of Buffalo…, 582, 4th Dept 6-28-13

 

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Defendant Should Have Been Adjudicated a Youthful Offender; Waiver of Appeal Not Valid

The Fourth Department determined the defendant’s waiver of appeal was invalid and County Court should have adjudicated the defendant a youthful offender (re: criminal possession of a weapon):

…[T]he waiver of the right to appeal is invalid because “the minimal inquiry made by County Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice”… .

A defendant between the ages of 16 and 19 who, like defendant herein, “has been convicted of an armed felony offense . . . is an eligible youth if the court determines that . . . [there are] mitigating circumstances that bear directly upon the manner in which the crime was committed” (CPL 720.10 [3] [i]), and we conclude that such is the case here. The record reflects that defendant was the victim of a brutal attack by multiple perpetrators the day prior to the armed felony offense at issue herein. … Defendant told the police that he had fired a single shot into the porch of his attackers’ house “to send a message to them to stop messing with him as he was a serious threat if need be.” According to defendant, he knew that his attackers would not be home and, indeed, the record reflects that the residence was unoccupied at the time of the shooting.  People v Amir W, 759, 4th Dept 6-28-13

 

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NEWSPAPER ARTICLES ABOUT JUDICIAL PROCEEDINGS ENTITLED TO ABSOLUTE PRIVILEGE (CT APP)

The Court of Appeals determined the newspaper articles about plaintiff and plaintiff’s corporation were entitled to absolute privilege in this defamation action:

This defamation case arose from a series of articles and editorials published by The Buffalo News (News) in 2007 and 2008 concerning a federal investigation, related lawsuits and a guilty plea in federal court by National Air Cargo (NAC), an air freight forwarder, to settle allegations that it had overcharged the federal government on military freight contracts in the continental United States. The newspaper reported that NAC and its owner and chairman, plaintiff Christopher Alf, had admitted that NAC “cheated” the government over a period of several years in the amount of millions of dollars, that NAC would pay almost $28 million in fines and restitution, and that no executives would face jail time. Plaintiff sued for defamation, arguing that the News’s reporting was false and misleading because it reported prolonged wrongdoing as opposed to a single admitted false statement and because the average reader would think that plaintiff had personally engaged in wrongful conduct. Supreme Court granted summary judgment to the newspaper, holding that the News was entitled to the defense of absolute privilege under Civil Rights Law § 74, which provides that “[a] civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding.” The Appellate Division affirmed … .We now affirm as well.

… [T]he publication must be considered in its entirety when evaluating the defamatory effect of the words”… . … [V]iewing the articles as a whole, the average reader would conclude that the company, and not plaintiff, pleaded guilty to wrongdoing and that the amount of restitution covered more than the single, admitted incident. As we have said, “newspaper accounts of legislative or other official proceedings must be accorded some degree of liberality. When determining whether an article constitutes a ‘fair and true’ report, the language used therein should not be dissected and analyzed with a lexicographer’s precision” … . Here, the News provided substantially accurate reporting of the plea agreement and the fines and restitution, as discussed in open court. Thus, all the challenged statements concerning NAC and plaintiff relating to these proceedings are entitled to immunity under Civil Rights Law § 74. Alf v Buffalo News, Inc., 2013 NY Slip Op 04843 [21 NY3d 988], CtApp 6-27-13

 

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THOSE WHO WORK ON MUNICIPAL VESSELS ARE ENTITLED TO THE PREVAILING WAGE PURSUANT TO LABOR LAW 220 (CT APP)

The Court of Appeals, in a full-fledged opinion by Judge Piggot, determined a municipal vessel is public work entitling those who work on a municipal vessel to the prevailing wage pursuant to Labor Law 220:

We hold that a municipal vessel is a public work within the meaning of Labor Law § 220 and article I, § 17 of the State Constitution—so that workers involved in its construction, maintenance or repair must be paid prevailing wages—if the vessel’s primary objective is to benefit the general public. * * *

We …. conclude that a three-prong test should be applied to determine whether a particular project is subject to the prevailing wage requirements of Labor Law § 220 and article I, § 17 of the State Constitution. First, a public agency must be a party to a contract involving the employment of laborers, workers, or mechanics. Second, the contract must concern a project that primarily involves construction-like labor and is paid for by public funds. Third, the primary objective or function of the work product must be the use or other benefit of the general public. …

… Plaintiffs worked on such vessels as the Staten Island Ferry boats, city fireboats, and municipal garbage barges. A ferry boat is, of course, made for the use of the general public, as is a bus or train. While we recognize that a fireboat, tug or barge is not made to be used by the public, there is no doubt that its function is to serve the general public. For example, a New York City fireboat is used by firefighters for the … benefit of the entire City’s public. There is no justification for making fine distinctions between vessels according to whether or not members of the public have access to them. We have not differentiated buildings used by public employees according to whether there is public access … . The dispositive question is whether their primary function is to serve the general public. De La Cruz v Caddell Dry Dock & Repair Co., Inc., 2013 NY Slip Op 04842 [21 NY3d 530], CtApp 6-27-13

 

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THE SEARCH WARRANT APPLICATION AND SUPPORTING AFFIDAVIT DID NOT DEMONSTRATE THE RELIABILITY OF THE CONFIDENTIAL INFORMANT, MATTER SENT BACK FOR REVIEW OF THE TRANSCRIPT OF THE CONFIDENTIAL INFORMANT’S STATEMENT MADE BEFORE THE ISSUING MAGISTRATE (CT APP)

The Court of Appeals, over a dissent, determined the motion court should have looked at the transcript of the confidential informant’s statements before the magistrate before ruling on whether the search warrant was supported by probable cause. The application and affidavit did not demonstrate the reliability of the informant:

… Supreme Court erred by failing to examine the transcript of the confidential informant’s testimony before the magistrate to determine whether the search warrant was issued upon probable cause and that the formal requirements of CPL 690.40 (1) had been substantially complied with … . …

The search warrant and supporting affidavit do not by themselves establish probable cause in this case … . A warrant application containing information provided by a confidential informant must demonstrate “the veracity or reliability of the source of the information” … . There are no “factual averments” in the police officer’s affidavit that could have afforded the magistrate a basis for determining the reliability of the confidential informant … . The affidavit does not state that the informant had a proven “track record” of supplying reliable information in the past … , and it is not evident that the informant was under oath when information was given to the officer … .

Nor may the reliability of the confidential informant be inferred solely from the statement, set forth in the affidavit, that the informant bought cocaine from defendant. While admissions against penal interest may be sufficient to support a finding of probable cause … , “[s]uch admissions are not guarantees of truthfulness and they should be accepted only after careful consideration of all the relevant circumstances of the case indicates that there exists a basis for finding reliability” … . People v Chisholm, 2013 NY Slip Op 04841 [21 NY3d 990], CtApp 6-27-13

SUPPRESSION

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JUDGE MUST DECIDE WHETHER TO TREAT AN ELIGIBLE YOUTH AS A YOUTHFUL OFFENDER, EVEN WHEN THE DEFENDANT DOES NOT ASK THE JUDGE TO DO SO (CT APP)

The Court of Appeals, in a full-fledged opinion by Judge Smith, over a concurring opinion and a two-judge dissent, determined that a judge must consider whether an eligible youth should be treated as a youthful offender, even where the defendant makes no request to do so:

CPL 720.20 (1) says that, where a defendant is eligible to be treated as a youthful offender, the sentencing court “must” determine whether he or she is to be so treated. We hold that compliance with this statutory command cannot be dispensed with, even where defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to [*2]make such a request. In so holding, we overrule People v McGowen (42 NY2d 905 [1977]). * * *

We read the legislature’s use of the word “must” in this context to reflect a policy choice that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain. Ordinarily, of course, defendants may choose to give up their rights, even very important ones, and indeed are deemed to have done so if they do not timely assert them. But this right—not a right to receive youthful offender treatment, but to have a court decide whether such treatment is justified—is different. To disable a court from making that decision is effectively to hold that the defendant may not have the opportunity for a fresh start, without a criminal record, even if the judge would conclude that that opportunity is likely to turn the young offender into a law-abiding, productive member of society.

The 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. Of course there will be many cases in which the interests of the community demand that youthful offender treatment be denied, and that the young offender be sentenced like any other criminal; indeed, there will be cases in which that is obviously the right course—but the court must make the decision in every case. Where the court’s ruling is a foregone conclusion, no purpose is served by a plea bargain that takes the decision out of the court’s hands. People v Rudolph, 2013 NY Slip Op 04840 [21 NY3d 497], CtApp 6-27-13

 

 

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DOCTOR INTENTIONALLY LEFT A GUIDE WIRE USED DURING SURGERY INSIDE PLAINTIFF’S BODY WHEN HE WAS UNABLE TO FIND IT, RES IPSA LOQUITUR DID NOT APPLY, COMPLAINT PROPERLY DISMISSED (CT APP)

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that the medical malpractice action was properly dismissed after plaintiff’s proof was put in. Defendant doctor intentionally left a guide wire (used during a surgical procedure) inside plaintiff’s body after he was unable to locate it. The guide wire was later removed with the aid of a special x-ray machine. The “foreign object” was not left plaintiff’s body unintentionally, which is a requirement of the res ipsa loquitur doctrine. And plaintiff was unable to show that it was the defendant doctor, and not someone else involved in the surgery, who exercised control over the guide wire:

Plaintiff Marguerite James commenced this medical malpractice action against defendants Dr. David Wormuth and his practice … after he failed to remove a localization guide wire during a biopsy of an area on plaintiff’s lung. On this appeal from the Appellate Division order affirming the dismissal of her amended complaint, we affirm.

In October 2004, a guide wire inserted into the plaintiff to assist with a biopsy of an area in her lung dislodged. Defendant Dr. Wormuth proceeded with the biopsy, but was unable to locate the dislodged wire. After an unsuccessful 20-minute manual search for the wire, defendant determined that it was better for the plaintiff to leave the wire and end the surgical procedure, rather than to extend the amount of time she was in surgery for him to continue searching for the wire. Defendant informed plaintiff after the surgery that he could not find the wire, and that he had determined that it was better to leave it rather than continue the search procedure.

Plaintiff subsequently returned to defendant complaining of pain she attributed to the lodged wire, and which she said was so significant that it disrupted her ability to work. Approximately two months after the first procedure, defendant performed a second operation. In that procedure, he successfully … located and removed the wire with the use of a special X-ray machine known as a C-arm. * * *

To the extent counsel argued that res ipsa loquitur applies because the wire could only have dislodged due to the doctor’s negligence, plaintiff failed to establish the elements of res ipsa, specifically that Dr. Wormuth had exclusive control … . Dr. Wormuth testified that there were other medical personnel involved in the process of inserting the wire and transporting the plaintiff prior to the doctor’s discovery that the wire had dislodged. Plaintiff did not produce any evidence to the contrary. Instead, plaintiff’s counsel appears to have … believed that the control element was satisfied because the doctor had control over the operation. Whether the doctor was in control of the operation does not address the question of whether he was in exclusive control of the instrumentality, because several other individuals participated to an extent in the medical procedure. Given that plaintiff failed to produce any evidence that the doctor had exclusive control of the wire, or sufficient proof that “eliminate[s] within reason all explanations for the injury other than the defendant’s negligence,” the control element clearly has not been satisfied … . James v Wormuth, 2013 NY Slip Op 04839 [21 NY3d 540] CtApp 6-27-13

 

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STATE’S USE OF A GPS DEVICE TO TRACK STATE EMPLOYEE’S MOVEMENTS DID NOT REQUIRE A WARRANT, BUT THE SEARCH WAS UNREASONABLE BECAUSE ALL OF THE EMPLOYEE’S MOVEMENTS, EVEN WHEN THE EMPLOYEE WAS ON VACATION, WERE TRACKED, THE GPS EVIDENCE SHOULD HAVE BEEN SUPPRESSED (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Smith, over a three-judge concurrence, determined the evidence obtained about a state employee’s movements by placing a GPS device on the employee’s car should have been suppressed in the Labor Department’s hearing (after which the employee was terminated). The Court of Appeals found that the use of the GPS device did not require a warrant, but the search in this case was unreasonable in scope:

The State of New York, suspecting that one of its employees was submitting false time reports, attached a global positioning system (GPS) device to the employee’s car. Under People v Weaver (12 NY3d 433 [2009]) and United States v Jones (565 US —, 132 S Ct 945 [2012]), the State’s action was a search within the meaning of the State and Federal Constitutions. We hold that the search did not require a warrant, but that on the facts of this case it was unreasonable. * * *

While the search did not require a warrant, it did not comply with either the State or Federal Constitution unless it was a reasonable search. We conclude that the State has failed to demonstrate that this search was reasonable. * * *

Where an employer conducts a GPS search without making a reasonable effort to avoid tracking an employee outside of business hours, the search as a whole must be considered unreasonable. That conclusion concededly requires suppression of the GPS evidence here; the State has disclaimed any reliance on the balancing test that we use when deciding whether to invoke the suppression remedy in administrative proceedings .. . . Matter of Cunningham v New York State Dept. of Labor,
2013 NY Slip Op 04838 [21 NY3d 515], CtApp 6-27-13

 

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Chronic Nonpayment Not Subject to 15-Day Cure Period; Chronic Nonpayment is Treated Differently from Occasional Nonpayment

The First Department explained the legal principles which apply to chronic nonpayment of rent as follows:

…[P]laintiff chronically failed to pay its rent, having forced defendant to bring 10 nonpayment proceedings over the last seven years. This is a breach of a substantial obligation under the lease…, and is a type of default that plaintiff cannot cure within the 15-day cure period provided for in the lease …. Accordingly, plaintiff was properly denied a Yellowstone injunction, since that relief requires a showing that plaintiff is able to cure….  Defendant was not limited to a nonpayment proceeding under the term of the lease that provided for such proceedings for nonpayment. Chronic nonpayment is a violation of a different type than occasional nonpayment. Nor can plaintiff rely on any defect of the notice of default, since no such notice is even necessary for an action based on chronic nonpayment….  Definitions Personal Fitness Inc v 133 E 58th St LLC, 2013 NY Slip Op 04892, 1st Dept 6-27-13

 

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