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PAROLEES DO NOT SURRENDER THEIR CONSTITUTIONAL RIGHTS AGAINST UNREASONABLE SEARCHES AND SEIZURES; HERE THE SEARCH BY PAROLE OFFICERS WAS BASED UPON A TIP FROM DEFENDANT’S MOTHER; THE SEARCH WAS DEEMED SUBSTANTIALLY RELATED TO THE PAROLE OFFICERS’ DUTIES; THERE WAS A DISSENT (THIRD DEPT).

The Third Department, over a comprehensive dissent, determined the parole officers’ search of defendant-parolee’s residence based upon a tip from his mother was proper. Mother, with whom defendant resided, said she saw a picture of defendant with a gun. In the search extended magazines and gun parts were found in defendant’s bedroom:

The general rules and conditions of release typically require a parolee to submit to a warrantless search by his or her parole officer … . The record evinces that defendant executed such a document. However, “a parolee does not surrender his or her constitutional rights against unreasonable searches and seizures, [and] what may be unreasonable with respect to an individual who is not on parole may be reasonable with respect to one who is. Accordingly, a search of a parolee undertaken by a parole officer is constitutional if the conduct of the parole officer was rationally and reasonably related to the performance of the parole officer’s duty and was substantially related to the performance of duty in the particular circumstances” … .

* * * Since the information concerning defendant’s possible violation of his parole conditions came from his mother, there existed a legitimate reason for the search undertaken and it was substantially related to the performance of the parole officer’s duties … . People v Spirito, 2023 NY Slip Op 02353, Third Dept 5-4-23

Practice Point: Parolees do not give up the right to contest an unreasonable search. Here the search was prompted by a tip from defendant’s mother and was deemed substantially related to the parole officers’ duties. There was a comprehensive dissent.

 

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THE DEFENSE REQUEST FOR THE CIRCUMSTANTIAL-EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the defense request for the circumstantial-evidence jury instruction should have been granted;

The court should have granted defendant’s request for a circumstantial evidence charge. There was no direct evidence establishing defendant’s participation in the conspiracy … , and the People do not argue otherwise. The court’s standard instructions on reasonable doubt and inferences to be drawn from evidence did not suffice, because they did not make the jury aware of its duty to apply the circumstantial evidence standard to the People’s entire case and exclude beyond a reasonable doubt every reasonable hypothesis of innocence … . The error was not harmless, because the circumstantial evidence of defendant’s involvement in the conspiracy was not overwhelming.

However, because the verdict was based on legally sufficient evidence and was not against the weight of the evidence, there is no basis for dismissal of the indictment. People v Garcia, 2023 NY Slip Op 02392, First Dept 5-4-23

Practice Point: The judge’s jury instruction did not make it clear the circumstantial evidence standard applied to the entire case. New trial ordered.

 

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THE INDICTMENT DID NOT GIVE ADEQUATE NOTICE OF THE PARTICULAR CRIME WITH WHICH DEFENDANT WAS CHARGED (FIRST DEPT).

The First Department, reversing Supreme Court and dismissing the indictment, determined the indictment did not give sufficient notice of the particular crime with which defendant was charged:

The indictment was jurisdictionally defective because it failed to charge defendant with committing a particular crime … . The indictment purported to charge defendant with persistent sexual abuse, a statute that elevates the repeated commission of any of three separately codified misdemeanors to a felony … , but it failed to “specify which of the three discrete qualifying offenses defendant was alleged to have committed” … . Hardware [200 AD3d 431] is dispositive of this appeal … . . In Hardware the indictment alleged that defendant had “subjected an individual to . . . sexual contact.” We held that this allegation was inadequate because ‘sexual contact’ is an element of all three of the qualifying offenses. Therefore, the indictment did not give defendant notice “with sufficient precision to clearly apprise the defendant . . . of the conduct which is the subject of the accusation” (CPL 200.50[7][a] …). The only additional allegation in the indictment in this case is that defendant acted “without the [victim’s] consent.” That allegation similarly failed to specify the underlying crime, because the absence of consent is also an element shared by all three of the qualifying offenses. People v Lacy, 2023 NY Slip Op 02394, First Dept 5-4-23

Practice Point: If it is not clear from the indictment exactly which of several possible crimes is charged, it must be dismissed.

 

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SETTING A RETURN DATE LESS THAN 20 DAYS FROM THE DATE OF SERVICE OF THE ARTICLE 78 PETITION WAS NOT, UNDER THE FACTS, A JURISDICTIONAL DEFECT; THE PETITION SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the failure to provide the requisite 20-day notice in an Article 78 petition, under the facts, was not a jurisdictional defect and the dismissal of the petition was an abuse of discretion. Petitioners sought to contest a ruling of the NYS Office of Children and Family Services which refused to find a maltreatment report unfounded re: one of the petitioners:

Pursuant to CPLR 7804 (c), “a notice of petition, together with the petition and affidavits specified in the notice, shall be served . . . at least [20] days before the time at which the petition is noticed to be heard.” However, CPLR 2001, which has been held to apply to service defects … , authorizes a court to “permit a mistake, omission, defect or irregularity . . . to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded.” In deciding whether a defect in service is a “technical infirmity” within the scope of CPLR 2001, “courts must be guided by the principle of notice to the [respondent] — notice that must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections” … .

… [I]t is … wholly undisputed that the subject application was not heard on the return date proposed by petitioners, nor was there any appearance before Supreme Court, either held or calendared, prior to respondents’ motion. It is further undisputed that, apart from failing to strictly comply with CPLR 7804 (c), petitioners properly served respondents. Thus, this case is functionally no different than those in which a return date has been omitted from a notice of petition, and such failures have been held to be technical infirmities within the scope of CPLR 2001 … . Given these facts, although the return date on the notice of petition was defective at the time of service, we find that the service effectuated by petitioners was reasonably calculated to apprise respondents of this proceeding and afford them the opportunity to defend against it … . Matter of Naomi R. v New York State Off. of Children & Family Servs., 2023 NY Slip Op 02362, Third Dept 5-4-23

Practice Point: Here, under the facts, the failure to provide the required 20-day notice (service at least 20 days before the return date) for an Article 78 petition did not prejudice the respondent and was not a jurisdictional defect. The petition should not have been dismissed.

 

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THE NYC BOARD OF HEALTH PROPERLY REFUSED TO ADD GENEALOGISTS TO THE LIST OF PERSONS WHO CAN ACCESS DEATH CERTIFICATES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the NYC Board of Health did not exceed the scope of its powers when it amended the NYC Health Code to add family members to the list of persons who can access death certificates but refused to add genealogists:

… New York City Board of Health did not “exceed[] the scope of its delegated powers” in amending 24 RCNY 207.11 … , by adding to the existing list of family members for whom requests for death certificates would automatically be deemed “necessary or required for a proper purpose” while declining to add genealogists … . Instead, it “balance[ed] costs and benefits according to preexisting guidelines” and did not create “its own comprehensive set of rules without benefit of legislative guidance” … .  …

The stated goal of the proposal was to allow more family members access to death certificates, and the Board of Health reasonably expressed concern with family privacy issues, due to social security numbers and causes of death being listed on death certificates, when declining to add genealogists to the expanded list … .  Matter of Reclaim the Records v New York City Dept. of Health & Mental Hygiene, 2023 NY Slip Op 02395, First Dept 5-4-23

Practice Point: The NYC Board of Health did not exceed its administrative powers when it refused to add genealogists to the list of persons who can access death certificates.

 

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THE DEPARTMENT OF HEALTH REGULATIONS PLACING A CAP ON THE NUMBER OF SERIOUSLY MENTALLY ILL PERSONS WHO CAN BE PLACED IN LARGE (AT LEAST 80-BED) ADULT HOMES DOES NOT CONSTITUTE DISCRIMINATION UNDER THE AMERICANS WITH DISABILITIES ACT (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Lynch, reversing Supreme Court, determined the cap on the number of seriously mentally ill persons who can be placed in large adult homes (at least an 80-bed capacity) did not amount to unconstitutional discrimination under the Americans with Disabilities Act (ADA):

On this record, we conclude that respondent has demonstrated that the admissions cap was implemented to benefit, rather than to discriminate against, persons with serious mental illness … .

… [R]espondent [Commissioner of Health] has demonstrated that the challenged regulations are narrowly tailored to implement the integration mandate of Title II of the ADA and that the “benefit to the [protected class from the subject regulations] . . . clearly outweigh[s] whatever burden may result to them” … . The admissions cap applies only to people with a serious mental illness — those “who have a designated diagnosis of mental illness under the Diagnostic and Statistical Manual of Mental Disorders . . . and whose severity and duration of mental illness results in substantial functional disability” (18 NYCRR 487.2 [c] … ). Accordingly, the cap is specifically tailored to the very individuals who are the subject of the integration mandate. Rather than limiting admissions to all adult homes, the regulations apply solely to a subcategory of large adult homes — those certified with at least an 80-bed capacity — where new admissions would increase the population of persons with serious mental illness over the 25% threshold. Matter of Oceanview Home for Adults, Inc. v Zucker, 2023 NY Slip Op 02365, Third Dept 5-4-23

Practice Point: The cap on the number of seriously mentally ill persons who can be placed in large adult homes does not amount to unconstitutional discrimination against persons with disabilities.

 

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THE ORDER SUSPENDING THE SPEEDY TRIAL STATUTE DURING COVID APPLIED HERE; DEFENDANT’S SPEEDY-TRIAL MOTION TO DISMISS THE INDICTMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing County Court, determined the Executive Order suspending Criminal Procedure Law 30.30 (speedy trial) during the COVID pandemic was applicable and defendant’s motion to dismiss the indictment for violation of the speedy trial statute should not have been granted:

Executive Order 202.87, while it was in effect, constituted a toll of the time within which the People must be ready for trial for the period from the date a felony complaint was filed through the date of a defendant’s arraignment on the indictment, with no requirement that the People establish necessity in each particular case. We find that the phrase “to the extent necessary” modifies “suspended” and not “toll,” as it “explains how sections 303.30 and 190.80 are suspended—not in their entirety but ‘to the extent necessary'” … . Therefore, “Executive Order 202.87 does not require a showing of necessity to toll time periods because it does not explicitly condition the tolling on necessity” … . Moreover, as the People contend, CPL 30.30(4)(g) permits the exclusion of “periods of delay occasioned by exceptional circumstances.” Finding that a showing of necessity is required for the exclusion of time under Executive Order 202.87 would render that Executive Order superfluous and unnecessary. People v Taback, 2023 NY Slip Op 02334, Second Dept 5-3-23

Practice Point: The People do not have to show “necessity” to take advantage of the order suspending the speedy trial statute during COVID.

 

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THE COUNTY’S FAILURE TO RESPOND TO PETITIONER’S FOIL REQUEST WITHIN FIVE DAYS IS A DENIAL; THE COUNTY’S FAILURE TO NOTIFY PETITIONER OF THE AVAILABILITY OF AN ADMINISTRATIVE REVIEW OF THE DENIAL EXCUSED PETITIONER’S FAILURE TO SEEK ADMINSTRATIVE REVIEW; PETITIONER’S ARTICLE 78 ACTION SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Article 78 petition seeking court review of the denial of a FOIL request should not have been dismissed for failure to exhaust administrative remedies. Here the county did not respond to the FOIL request within five days, which, under the controlling regulations, is a denial. Petitioner, after an additional 30 days, filed the Article 78 petition without pursuing an administrative appeal. The Second Department held that the county’s failure to notify petitioner of the availability of administrative review justified petitioner’s failure to seek it before going to court, even though petitioner was aware of the availability of the administrative review process:

“The statutory time to respond to a FOIL request for records is ‘within five business days of the receipt of a written request,’ and the agency should respond by ‘mak[ing] such record available to the person requesting it, deny[ing] such request in writing or furnish[ing] a written acknowledgment of the receipt of such request and a statement of the approximate date . . . when such request will be granted or denied'” … . 21 NYCRR 1401.7(b) states, in relevant part, that “[d]enial of access shall be in writing stating the reason therefor and advising the person denied access of his or her right to appeal to the person or body designated to determine appeals, and that person or body shall be identified by name, title, business address[,] and business telephone number” … . “21 NYCRR 1401.7(c) provides that a FOIL request is deemed denied if there is no response to the request within five business days” … . “[A]ny administrative appeal of a denial [must] be undertaken within 30 days of the denial” … . A petitioner who does not “appeal[ ] the denial in writing” will generally be deemed to have “failed to exhaust its administrative remedies and, thus, [may] not resort to a judicial forum to gain relief” … .

Here, the Supreme Court improperly determined that dismissal was warranted based on the petitioner’s failure to exhaust its administrative remedies. Where, as here, an agency fails to “inform the person [or entity] making the FOIL request that further administrative review of the determination is available, the requirement of exhaustion is excused” … . Matter of Law Offs. of Cory H. Morris v Suffolk County, 2023 NY Slip Op 02312, Second Dept 5-3-23

Practice Point: If the agency which receives a FOIL request does not respond within five days, the request can be deemed denied. If the agency does not notify the party making the request of the availability of administrative review of the denial, failure to seek administrative review is excused, even where, as here, the petitioner was aware of the administrative review process.

 

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ALTHOUGH MRNACAJ GESTURED THAT SALIAN COULD PULL OUT OF A DRIVEWAY INTO MRNACAJ’S LANE, MRNACAJ COULD NOT HAVE FORESEEN THAT SALIAN WOULD CONTINUE INTO THE OTHER LANE WHERE SHE WAS STRUCK, MRNACAJ’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court’s denial of Mrnacaj’s motion for summary judgment in this traffic accident case, determined Mrnacaj, who allegedly motioned for Salian to pull out from a driveway, was not responsible for Salian’s failure to see what should have been seen. Salian pulled across the lane Mrnacaj was in into the other lane of traffic where she was struck:

“When one driver chooses to gratuitously signal to another person, indicating that it is safe to proceed or that the signaling driver will yield the right-of-way, the signaling driver assumes a duty to do so reasonably under the circumstances” … . However, even where a party relies on a driver’s gesture, a superseding, intervening act may break the causal connection … . “Whether an intervening act is a superseding cause is generally a question of fact, but there are circumstances where it may be determined as a matter of law” … .

In this particular case, assuming without deciding that Mrmacaj negligently motioned to Salian before she proceeded from the driveway and attempted to turn left, Salian’s unforeseeable failure to see what was there to be seen and yield the right of way to the plaintiff constituted an intervening and superseding cause that established the moving defendants’ prima facie entitlement to judgment as a matter of law … . Under the circumstances of this case, Salian not only pulled her vehicle out of the driveway into the lane occupied by Mrnacaj, but also crossed that lane into a farther lane intended for vehicles traveling in the opposite direction of Mrnacaj, which included the plaintiff’s oncoming vehicle that should have been seen … . Dyakiw v Salian, 2023 NY Slip Op 02298, Second Dept 5-3-23

Practice Point: Even if a driver negligently gestures to another driver to pull out of a driveway, the gesturing driver is not liable for the other driver’s unforeseen negligence (here pulling into the other lane where she was struck).

 

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CAUSES OF ACTION IN THE COMPLAINT BASED UPON ALLEGATIONS NOT INCLUDED IN THE NOTICE OF CLAIM MUST BE DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined certain causes of action against the municipality should have been dismissed because the notice of claim did not provide notice of them:

The Supreme Court should have granted that branch of the appellants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action arising from events allegedly transpiring after January 6, 2019, insofar as asserted against them, because the plaintiff failed to serve an adequate notice of claim with respect to those causes of action. “[C]auses of action or legal theories may not be raised in the complaint that were not directly or indirectly mentioned in the notice of claim and that change the nature of the claim or assert a new one” … . Here, the notice of claim was limited to the incident that allegedly transpired on January 6, 2019, and thus, the causes of action arising out of events allegedly occurring thereafter, insofar as asserted against the appellants, are foreclosed … . Curry v Town of Oyster Bay, 2023 NY Slip Op 02297, Second Dept 5-3-23

Practice Point: A complaint against a municipality cannot allege causes of action which are based on facts not included in the notice of claim.

 

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