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THE JUDGE’S LAW CLERK WHEN DEFENDANT’S MOTION TO VACATE HIS CONVICTION WAS MADE WAS THE DISTRICT ATTORNEY WHEN DEFENDANT WAS INDICTED AND PROSECUTED; THE APPEARANCE OF A CONFLICT OF INTEREST REQUIRED REVERSAL AND REMITTAL; ALTHOUGH THE ISSUE WAS NOT BEFORE COUNTY COURT, THE ISSUE WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, reversing the denial of defendant’s motion to vacate his conviction, determined the fact that the judge’s law clerk was District Attorney at the time of defendant’s indictment and prosecution presented the appearance of a conflict of interest:

… [T]he law clerk here does not appear to have been directly involved in defendant’s case during her term as District Attorney, nor do the allegations contained within defendant’s CPL 440.10 motion implicate the law clerk’s conduct in her former capacity as District Attorney. That said, it has been observed that “[a] law clerk is probably the one participant in the judicial process whose duties and responsibilities are most intimately connected with the judge’s own exercise of the judicial function” … , and it is well settled that “[n]ot only must judges actually be neutral, they must appear so as well” … . Accordingly, it was an improvident exercise of County Court’s discretion to rule upon defendant’s CPL 440.10 motion under these circumstances … . People v Thornton, 2023 NY Slip Op 00460, Third Dept 2-2-23

Practice Point: Although the issue was not raised in County Court, the Third Department considered the issue in the interest of justice and reversed the denial of defendant’s motion to vacate his conviction because of the appearance of a conflict of interest. The judge’s law clerk was the District Attorney at the time defendant was indicted and prosecuted.

 

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THE MAJORITY HELD THE RECORD WAS SILENT ON WHETHER THE POLICE, WHO DID NOT APPLY FOR A NO-KNOCK WARRANT, ENTERED THE APARTMENT WITHOUT PROPER NOTICE TO THE OCCUPANTS AND THE ISSUE WAS NOT PRESERVED FOR APPEAL; THE DISSENT ARGUED THE ISSUE CAN BE ADDRESSED ON APPEAL UNDER INEFFECTIVE ASSISTANCE (FAILURE TO MOVE TO SUPPRESS), THE RECORD SUPPORTED AN UNAUTHORIZED NO-KNOCK ENTRY AND THE SEIZED EVIDENCE SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the issue whether the police did not give proper notice to the occupants prior to entering and searching premises was not preserved for appeal. The two dissenters argued the issue can be addressed by the appellate court under the ineffective-assistance argument (no motion to suppress based on failure to provide proper notice before entering) and the seized evidence should have been suppressed. The police did not apply for a no-knock warrant and, according to the dissent, entered the apartment using a battering ram before announcing their presence:

… [T]he record is silent as to what the police said or did prior to effectuating entry into the apartment. Thus, without resort to inappropriate speculation, it simply cannot be concluded from the record before us that the police failed to knock and announce their presence before forcefully entering the apartment. * * *

From the dissent:

In our view, the record confirms, by the police officers’ own trial testimony, that they did not provide any advance notice prior to entering the apartment where defendant was ultimately apprehended. The record shows that members of the involved emergency response team (hereinafter ERT) entered the apartment through a rear door into a kitchen area that led to a living room. When asked how the door was opened, Jason Blowers — a police officer with the City of Johnstown Police Department — explained that “the breacher opened the door, the mechanical breach . . . . He hit the door with a ram.” Sergeant Michael Pendrick, the first member of the ERT to enter the apartment, confirmed as much, testifying: “[a]s we approached the rear apartment door . . . another officer had breached the door, the door popped open.” People v Hayward, 2023 NY Slip Op 00461, Third Dept 2-2-23

Practice Point: The majority found the record silent on whether the police, who did not apply for a no-knock warrant, entered the apartment without giving proper notice to the occupants and held the issue was not preserved for appeal. The two-justice dissent argued the issue could be addressed on appeal as ineffective-assistance (failure to move to suppress) and the evidence demonstrated the police entered with a battering ram before announcing their presence.

 

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THE BOARD’S RULING THAT CLAIMANT WAS AN EMPLOYEE OF THE DELIVERY SERVICE WAS UPHELD; THE DISSENT ARGUED THE FACTS WERE MOST SIMILAR TO ANOTHER DECISION INVOLVING THE SAME EMPLOYER WHERE THE COURT FOUND NO EMPLOYER-EMPLOYEE RELATIONSHIP (THIRD DEPT).

The Third Department, over a dissent, upheld the Unemployment Insurance Board’s ruling that claimant was an employee of the delivery service (NEL) entitled to unemployment insurance benefits:

… [A]fter claimant applied to be a delivery driver, NEL conducted a screening process that included a verification of claimant’s driver’s license, a Department of Motor Vehicles background check and proof by claimant of relevant insurance coverage. Thereafter, NEL and claimant executed a written “Owner Operator Agreement,” wherein claimant was required, among other things, to provide a safe vehicle, maintain relevant licenses and insurance and to provide NEL with invoices for completed client engagements in order to be paid. Claimant and NEL negotiated a set rate of pay and claimant was responsible for all expenses, including the cost of fuel and equipment, but NEL provided that claimant’s pay could be increased during times of high fuel prices by way of a fuel surcharge. Claimant was required to pay an administrative fee to NEL for each day of provided services. Claimant could refuse any assignment and could subcontract out an accepted assignment. If an accepted assignment could not be completed, claimant was required to notify NEL, and it was then NEL that provided another delivery driver. NEL also provided claimant with the client’s address and the time that claimant was to report there. Any complaints made to NEL’s client regarding claimant were forwarded to NEL, which NEL handled.

It is true that claimant bears some similarities to the claimant in Matter of Pasini (Northeast Logistics, Inc.—Commissioner of Labor) (204 AD3d 1187 [3d Dept 2022]). The facts here, however, are more in line with Matter of Legros (Northeast Logistics, Inc.—Commissioner of Labor) (205 AD3d 1245 [3d Dept 2022]) and Matter of Rivera (Northeast Logistics, Inc.—Commissioner of Labor) (204 AD3d 1185 [3d Dept 2022]), where the finding of an employment relationship was upheld. That said, although there is evidence in the record that could support a contrary determination, in view of the evidence credited by the Board, substantial evidence supports the finding that an employment relationship exists … .

From the dissent:

Given the distinct similarity between the circumstances here and in Pasini, it is my view that the record lacks substantial evidence of the requisite control to establish an employer-employee relationship. Matter of McIntyre (Northeast Logistics, Inc.), 2023 NY Slip Op 00465.Third Dept 1-2-23

Practice Point: This case illustrates the importance of precedent based on similar facts in unemployment-insurance cases. Here the majority held the facts were similar to another case involving the same employer where an employment relationship was found. The dissent argued the facts were most similar to another case involving the same employer where no employment relationship was not found.

 

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PLAINTIFF IN THIS MEDICAL MALPRACTICE ACTION SOUGHT TO ADD TWO PHYSICIAN’S ASSISTANTS (PA’S) AS DEFENDANTS AFTER THE STATUTE OF LIMITATIONS HAD RUN; PLAINTIFF DID NOT DEMONSTRATE THE DEFENDANT DOCTORS WERE THE PA’S EMPLOYERS OR SUPERVISORS; PLAINTIFF DID NOT DEMONSTRATE THE PA’S HAD TIMELY KNOWLEDGE OF THE ACTION; THEREFORE THE RELATION-BACK DOCTRINE SHOULD NOT HAVE BEEN APPLIED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate the relation-back doctrine applied such that two physician’s assistants (PA’s) could be added as defendants after the statute of limitations had expired. There was no evidence the PA’s and the doctors were united in interest and no evidence the PA’s had timely notice of the suit:

In a negligence or malpractice action “the defenses available to two defendants will be identical, and thus their interests will be united, only where one is vicariously liable for the acts of the other” … . … As the PA defendants were employed by the practice, not the individual doctor defendants, there is no vicarious liability based on respondeat superior … . …  [T]he plaintiff failed to set forth sufficient facts to demonstrate that the PA defendants were directly supervised or controlled by the doctor defendants in their care and treatment of the decedent.

… The record is devoid of evidence that the PA defendants had notice that an action had been commenced against the doctor defendants prior to the expiration in 2014 of the statute of limitations for the medical malpractice and wrongful death causes of action. Sanders v Guida, 2023 NY Slip Op 00455, Second Dept 2-1-23

Practice Point: Here two of the three prongs of the relation-back doctrine should not have been applied to allow adding two physician’s assistants (PA’s) as defendants in this med mal case after the statute of limitations had run. The defendant doctors were not the PA’s employers or supervisors (the doctors and PA’s were not united in interest) and the plaintiff did not show the PA”s had timely knowledge of the suit.

 

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DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE TO LEVEL ONE; THE PRIOR RAPE (THE JUSTIFICATION FOR COUNTY COURT’S LEVEL THREE DESIGNATION) STEMMED FROM AN ONGOING RELATIONSHIP WITH THE VICTIM WHO WAS UNABLE TO CONSENT SOLELY BECAUSE OF HER AGE (SECOND DEPT).

The Second Department, reversing County Court, determined defendant was entitled to a downward departure to a level one sex offender designation. County Court had designated defendant a lever three offender because of a prior rape-third conviction. The rape-third conviction was based solely on the victim’s inability to consent due to her age. The defendant and the victim had been in a long-term relationship:

… [T]he unusual circumstances established by the defendant … are not accounted for by the Guidelines and tend to demonstrate a lower likelihood of reoffense and danger to the community. With respect to the first felony conviction serving as a predicate for the override, rape in the third degree, the People acknowledged that the victim’s lack of consent was solely by reason of inability to consent because of her age. Further, the record reflects that conduct underlying this crime was an ongoing relationship between the defendant and the victim. During this relationship, a video depicting sexual conduct between the defendant and the victim was taken. This video, depicting the same conduct for which the defendant was convicted of rape in the third degree and designated a level one sex offender, was discovered by a probation officer approximately a year later, and served as the basis for the defendant’s second sex-related felony conviction, possessing a sexual performance by a child. People v Hernandez, 2023 NY Slip Op 00451, Second Dept 2-1-23

Practice Point: Here defendant was entitled to a downward departure to a level one sex offender designation. The rape which County Court relied on for a level three designation stemmed from an ongoing relationship with the victim who was unable to consent solely because of her age.

 

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A PRESENTENCE REPORT MUST BE CREATED FOR EACH OFFENSE; HERE THE JUDGE USED A PRESENTENCE REPORT PREPARED FOR A DIFFERENT UNRELATED OFFENSE; THE SENTENCE WAS ILLEGALLY IMPOSED (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined the sentencing court should not have used a presentence report created for an earlier, unrelated offense. A unique presentence report for each offense is mandatory:

CPL 390.20 provides that “[i]n any case where a person is convicted of a felony, the court must order a pre-sentence investigation of the defendant and it may not pronounce sentence until it has received a written report of such investigation” (CPL 390.20[1]). This statutory language is mandatory … and a sentencing court’s failure to obtain a presentence report renders the sentence imposed invalid as a matter of law … .

Here, the County Court sentenced the defendant on the murder conviction without ordering or receiving a presentence report relating to the murder conviction. Instead, the court relied on a presentence report prepared in connection with the defendant’s conviction of attempted criminal possession of a controlled substance in the third degree, the facts and circumstances of which were not related to the facts and circumstances of the murder conviction. … [T]his did not satisfy the requirements of CPL 390.20, and therefore the sentence was illegally imposed. People v Shearer, 2023 NY Slip Op 00445, Second Dept 2-1-23

Practice Point: A judge cannot use a presentence report prepared for one offense in a sentencing for a different, unrelated offense.

 

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THE BANK IN THIS FORECLOSURE ACTION DID NOT SUBMIT SUFFICIENT PROOF OF STANDING OR COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not demonstrate standing or compliance with the notice requirements of RPAPL 1304:

“[A] plaintiff may demonstrate its standing in a foreclosure action through proof that it was in possession of the subject note endorsed in blank, or the subject note and a firmly affixed allonge endorsed in blank, at the time of commencement of the action” … . Although the plaintiff attached to the complaint copies of the note and a chain of purported allonges ending with an undated purported allonge endorsed in blank, the plaintiff did not demonstrate that the purported allonges, which were on pieces of paper completely separate from the note, were “so firmly affixed thereto as to become a part thereof,” as required by UCC 3-202(2) … . …

Johnson’s [the foreclosure specialist’s] affidavit did not establish proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed …  Further, Johnson’s affidavit failed to address the nature of Fay’s [plaintiff’s loan servicer’s] relationship with LenderLive [third-party vendor which sent the RPAPL 1304 notice] and whether LenderLive’s records were incorporated into Fay’s own records or routinely relied upon in its business … . Thus, Johnson’s affidavit failed to lay a foundation for admission of the transaction report generated by LenderLive (see CPLR 4518[a] …). Finally, the tracking numbers on the copies of the 90-day notices submitted by the plaintiff, standing alone, did not suffice to establish, prima facie, proper mailing under RPAPL 1304 …) . US Bank N.A. v Okoye-Oyibo, 2023 NY Slip Op 00457, Second Dept 2-1-23

Practice Point: Here there was no evidence the allonge was firmly attached to the note; therefore the bank’s standing to bring the foreclosure action was not demonstrated.

Practice Point: The bank in this foreclosure action did not demonstrate compliance with the notice requirements of RPAPL 1304.

 

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THE ACTION BY PLAINTIFF SELLER TO RECOVER ON A SECURITY INTEREST IN COLLATERAL FOR A LOAN TAKEN OUT BY THE BUYER AS CONSIDERATION FOR THE PURCHASE BARRED BY THE STANDSTILL AGREEMENT WHICH ASSIGNED PRIORITY TO TWO OTHER SECURITY INTERESTS (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Manzanet-Daniels, determined the language of a so-called standstill provision barred the action by plaintiff Intrepid seeking to recover a security interest in collateral for the $28.7 million loan taken out by the buyer, Selling Source, as consideration for the purchase. Plaintiff was a third priority lender and the standstill agreement provided plaintiff could not seek a remedy until payment was made to the first and second priority lenders:

… Selling Source agreed to acquire a number of Internet businesses from plaintiff Intrepid. In partial consideration, Selling Source executed a $28.7 million junior secured promissory note … . …

In connection with the transaction, the parties executed an intercreditor and subordination agreement (ICA) delineating the priority of each party’s security interest in the collateral pledged by the guarantors. Plaintiff, as the “third priority representative” of the “third priority lenders,” received third priority liens as security for the repayment of the $28.7 million note … .

The ICA contains standstill provisions that circumscribe Intrepid’s ability to exercise its remedies in the event of a default by Selling Source, providing, inter alia, that “[n]o Third Priority Lender shall commence or exercise any Remedies in respect of any default or event of default. . . until such time as the Payment-in-Full of the First Priority Obligations and Second Priority Obligations” … . * * *

This action is barred by the plain language of the standstill provision, which states that “[n]o Third Priority Lender shall commence or exercise any Remedies in respect of any default or event of default . . . until such time as the Payment-in-Full of the First Priority Obligations and Second Priority Obligations” … . Intrepid Invs., LLC v Selling Source, LLC, 2023 NY Slip Op 00396, First Dept 1-31-23

Practice Point: Here priority was assigned to those holding security interests in collateral for a loan taken out by the buyer as consideration for the purchase. The plaintiff seller was a third priority lender. The seller’s action to recover on its security interest was barred by standstill agreement which did not allow the seller to seek a remedy until the payment of the first and second priority lenders.

 

 

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DEFENDANT MANUFACTURED VALVES CONTAINING ASBESTOS; ALTHOUGH DEFENDANT HAD A SMALL OFFICE IN NYC THE VALVES WERE MANUFACTURED AND SOLD IN CONNECTICUT, WHERE PLAINTIFF LIVED AND WORKED; THE RELATIONSHIP BETWEEN NEW YORK AND PLAINTIFF’S CLAIMS WAS NOT SUFFICIENT FOR NEW YORK JURISDICTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined New York did not have jurisdiction over plaintiff’s asbestos exposure action. Although the defendant manufacturer of valves containing asbestos had a small office in New York, defendant demonstrated that all the activity which related to the manufacture, sale and use of the valves took place in Connecticut. Plaintiff lived and worked exclusively in Connecticut as well:

… [T]here was no record evidence suggesting that defendant’s minimal activity in New York had an articulable nexus to plaintiff’s injury. … … [In addition] plaintiff did not offer a sufficient basis to justify jurisdictional discovery … . To the extent that defendant operated an executive and sales office out of the 100 Park Avenue office, this limited activity was not substantially related to plaintiff’s alleged exposure to asbestos while working with and around defendant’s valves in Connecticut and plaintiff does not identify any other activity by defendant in New York that could provide a sufficient nexus to his injury. Instead, all conduct giving rise to plaintiff’s claims occurred in Connecticut, as he was not a New York resident, did not purchase or work with defendant’s valves in New York, and does not claim to have suffered harm in this State … . Without an adequate relationship between New York and plaintiff’s claims, “specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the State” … . Matter of New York Asbestos Litig., 2023 NY Slip Op 00402, First Dept 1-31-23

Practice Point: Plaintiff alleged exposure to asbestos in valves made by defendant caused his cancer. The valves were manufactured and sold in Connecticut where plaintiff lived and worked. Defendant’s small office in New York was not sufficiently connected with plaintiff’s claims to support New York jurisdiction.

 

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PETITIONER POLICE OFFICER FELL TWICE AT NIGHT WHILE INVESTIGATING SUSPICIOUS ACTIVITY; HE FELL IN A THREE-FOOT DEEP HOLE WHEN CHECKING OUT A HOUSE AND HE FELL DOWN SOME STAIRS CHECKING OUT A PARKING LOT; NEITHER FALL WAS A COMPENSABLE “ACCIDENT” (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined the two falls by petitioner police officer were not compensable “accidents” within the meaning of the Retirement and Social Security Law and petitioner was not entitled to accidental disability retirement benefits. The opinion discusses in some depth the difficulties of determining what is and what is not an “accident” in this context:

… [P]etitioner testified … he was assigned to the midnight shift and was in his patrol car when, at approximately 1:00 a.m., he became suspicious upon observing a light coming from the second floor of a house that was under construction. According to petitioner, it was “very dark” around the house due to the lack of streetlights in the area. Petitioner took a flashlight and began walking around the perimeter of the house, illuminating the second floor of the house as he walked, in accordance with police protocol. As he continued walking the perimeter of the house, petitioner fell in a three-foot-deep hole in the ground that had been dug alongside the house. As petitioner’s regular employment duties included conducting investigations in the dark, the risk that he might fall due to an unseen condition while engaged in such activity is an inherent risk of that employment … .

… [P]etitioner testified that, at approximately 2:00 a.m. … , he was investigating a report of a “suspicious party going through cars in a parking lot.” According to petitioner, it was drizzling that morning, and the area of the parking lot was dark. Petitioner was using a flashlight and, as he descended a wooden stairway that connected the parking lot to a baseball field, he was illuminating the field with the flashlight when he slipped and fell. Petitioner testified that, after his fall, he observed “green algae [and] mold,” as well as leaves, on the stairs. “When carrying out some police duties, an officer on foot may encounter, as part of the work being performed, a vast array of conditions, many of which are not easily traversed and can cause a fall. Encountering such conditions while actively engaged in police duties often is not an unexpected event, and the Comptroller may find a fall caused thereby to be an inherent risk of the job” … . Matter of Compagnone v DiNapoli, 2023 NY Slip Op 00354, Third Dept 1-26-23

Practice Point: This opinion should be consulted when trying to determine what constitutes a compensable “accident” within the meaning of the Retirement and Social Security Law.

 

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