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IN THIS HOSTILE-WORK-ENVIRONMENT ACTION UNDER 42 USC 1983 AND THE NYS HUMAN RIGHTS LAW, SOME OF THE DEFENDANTS, ALL CITY EMPLOYEES, WERE DEEMED PROTECTED FROM SUIT BY QUALIFIED IMMUNITY AS A MATTER OF LAW; WITH RESPECT TO THE EMPLOYEE WHO ALLEGEDLY MADE SEXUALLY INAPPROPRIATE COMMENTS TO PLAINTIFF, THERE WERE QUESTIONS OF FACT WHETHER QUALIFIED IMMUNITY WAS APPLICABLE (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined qualified immunity protected plaintiff’s supervisors in this hostile-work-environment action under 42 USC 1983 and the NYS Human Rights Law against the City of Albany and individual city employees. Plaintiff alleged a co-worker named Tierney made sexually inappropriate comments to her over a period of two years. The allegations against Tierney properly survived summary judgment, but the allegations against the defendants who played no role in the harassment, alleging supervisory inaction, should have been dismissed. Plaintiff had worked as a civilian dispatcher in the police department:

In the 42 USC § 1983 context, liability of an individual defendant is based on his or her “personal involvement in the alleged constitutional deprivation” … . Individual defendant liability only attaches when his or her own conduct is sufficiently severe and pervasive to create the hostile work environment; otherwise, that defendant is protected by qualified immunity … . * * *

Under state law, public officials are protected by qualified immunity for discretionary acts that are unlawful under the Human Rights Law unless “they are undertaken in bad faith or without reasonable basis” … . Hostile work environment claims under the Human Rights Law are evaluated under the same severe-or-pervasive standard as a claim brought pursuant to 42 USC § 1983 … .* * *

Although individual liability under 42 USC § 1983 may flow from a supervisor’s inaction in the face of known harassment … , the alleged individual inaction … did not suffice to create the hostile work environment … .

We reach the same conclusion … under the Human Rights Law, pursuant to which supervisors may be held individually liable to the extent that they aided and abetted conduct creating a hostile work environment (see Executive Law § 296 [6]). … [D]efendants[] … did not actively participate in the conduct creating the hostile work environment as required under the aiding-and-abetting provision … .

Even if plaintiff’s Human Rights Law claim against them could proceed under a supervisory inaction theory, we would conclude that they are shielded by qualified immunity. … . Mahoney v City of Albany, 2022 NY Slip Op 07288, Third Dept 12-22-22

Practice Point: Here plaintiff and defendants were city employees. Plaintiff alleged one employee made sexually inappropriate comments to her over a two year period. Supervisory inaction was the basis for the action against other defendants. The Third Department held the “supervisory-inaction” defendants were protected from suit by qualified immunity as a matter of law under both 42 USC 1983 and the NYS Human Rights Law. There were questions of fact about whether the employee who made the comments was protected by qualified immunity.

 

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DEFENDANT’S COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A VALID MOTION TO WITHDRAW THE PLEA; THE MOTION WAS MISCHARACTERIZED AS A MOTION TO VACATE THE CONVICTION AND WAS NOT SUPPORTED BY NECESSARY AFFIDAVITS; DEFENDANT’S SENTENCE WAS VACATED (THIRD DEPT).

The Third Department, vacating defendant’s sentence, determined defendant’s second counsel was ineffective in filing a motion to withdraw the plea:

Instead of filing a motion to withdraw defendant’s plea pursuant to CPL 220.60 (3), second counsel moved to vacate the judgment of conviction pursuant to CPL 440.10 (1) (h) based on generalized allegations, supported by his own “information and belief,” that first counsel had failed to properly investigate the facts, interview witnesses, assess the strength of the People’s case, file any motions or inform defendant of the consequences of pleading guilty. The People opposed the motion, noting that, inasmuch as defendant had yet to be sentenced , a motion pursuant to CPL 440.10 was premature. In reply, second counsel agreed that the motion was premature, presented the same allegations and asked that County Court nonetheless exercise its discretion to permit defendant to withdraw his plea, prompting the People to oppose the motion on the merits. By order entered September 14, 2017, County Court denied defendant’s CPL 440.10 motion to vacate the judgment of conviction as premature; alternatively, the court treated the motion as one to withdraw the plea and denied it, noting, among other things, that the motion was deficient as it was supported only by second counsel’s affirmation. * * *

Although second counsel’s mischaracterization of the subject motion does not, in and of itself, constitute ineffective assistance of counsel … , the motion was defective in other ways. Specifically, despite County Court granting second counsel two weeks to prepare a motion to withdraw defendant’s plea, he filed the motion in one day. In rushing his submission, second counsel failed to support the motion with affidavits from either defendant or first counsel, and he failed to incorporate any of the allegations that defendant made through the PSI; rather, second counsel opted to rely, exclusively, on his own “information and belief” and submitted a general, pro forma motion that was facially deficient. People v Williams, 2022 NY Slip Op 07265, Third Dept 12-22-22

Practice Point: Defense counsel was ineffective for failure to file a proper motion to withdraw the plea. The motion was mischaracterized as a motion to vacate the conviction and was not supported by necessary affidavits based upon first-hand knowledge.

 

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THE FELONY COMPLAINT CHARGED DEFENDANT WITH RAPE FIRST (FORCIBLE COMPULSION); THE SUPERIOR COURT INFORMATION (SCI) CHARGED RAPE THIRD (LACK OF CONSENT); BECAUSE RAPE THIRD AS CHARGED IN THE SCI WAS NOT A LESSER INCLUDED OFFENSE OF RAPE FIRST AS CHARGED IN THE FELONY COMPLAINT, THE WAIVER OF INDICTMENT AND SCI WERE JURISDICTIONALLY DEFECTIVE (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction by plea to a superior court information (SCI), determined the SCI did not charge the felony charged in the felony complaint (rape first) or a lesser included offense rendering the waiver of indictment and SCI jurisdictionally defective. The SCI charged rape third based upon lack of consent:

Although we acknowledge that “it is unnecessary to forcibly compel another to engage in sexual acts unless that person is an unwilling participant” … , it is nevertheless theoretically possible for one to use physical force to compel a victim to have sexual intercourse where the victim did not clearly express nonconsent. … [O]ne who commits the greater crime of rape in the first degree by forcible compulsion through physical force does not, by the same conduct, necessarily commit the lesser offense of rape in the third degree in which the victim expressly communicated his or her non-consent … . Consequently, rape in the third degree as charged in the SCI to which defendant pleaded guilty is not a lesser included offense of rape in the first degree as charged in the felony complaint … . People v Odu, 2022 NY Slip Op 07266, Third Dept 12-22-22

Practice Point: Here the felony complaint charged rape first (forcible compulsion) and the superior court information (SCI) charged rape third (lack of consent). Therefore the offense charged in the SCI was not a lesser included offense of the offense charged in the felony complaint, rendering the waiver of indictment and SCI jurisdictionally defective.

 

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ALTHOUGH THERE WAS DIRECT EVIDENCE DEFENDANT OWNED THE CAMERA WHICH WAS SET UP TO VIEW THE VICTIM’S BEDROOM, THERE WAS NO DIRECT EVIDENCE IT WAS THE DEFENDANT WHO ACTUALLY PLACED THE CAMERA ON THE NEIGHBOR’S PROPERTY; THERFORE THE CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN; CONVICTION REVERSED (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction, determined defendant’s request for the circumstantial evidence jury instruction should have been granted. Defendant was charged with setting up a camera on a neighbor’s property to view the victim’s bedroom. There was some direct evidence that the camera belonged to defendant. But the jury would have to rely on circumstantial evidence to find that the defendant had positioned the camera to view the victim:

… [P]roof by direct evidence as to one element of a crime … does not mean that a circumstantial evidence charge should be not given … . …

… [T]he record fails to disclose any eyewitness testimony — or any other proof — identifying defendant as the perpetrator who placed the camera on the neighbor’s lawn … . To conclude that defendant was the perpetrator, the jury had to make an inference based upon defendant’s ownership of the camera and the pictures of him found therein. Because “the People’s proof relative to the identity of the perpetrator . . . was entirely circumstantial” … County Court should have granted defendant’s request for a circumstantial evidence charge … . People v Lamb, 2022 NY Slip Op 07267, Third Dept 12-22-22

Practice Point: Even though there was direct evidence of an element of an offense, the circumstantial evidence jury instruction should have been in this case. Defendant was charged with setting up a camera to view the victim in the victim’s bedroom. There was direct evidence defendant owned the camera but no direct evidence it was defendant who placed the camera on the neighbor’s property.

 

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ALTHOUGH TWO CHILDREN HAD BEEN REMOVED FROM MOTHER’S CARE AFTER NEGLECT FINDINGS AND MOTHER ALLEGEDLY CONCEALED HER PREGNANCY AND FAILED TO SEEK APPROPRIATE PRENATAL CARE, SUMMARY JUDGMENT FINDING MOTHER HAD NEGLECTED HER NEWBORN WAS NOT APPROPRIATE; MATTER REMITTED TO BE HEARD BY A DIFFERENT JUDGE (THIRD DEPT).

The Third Department, reversing Family Court, determined summary judgment finding respondent mother had neglected and derivatively neglected her newborn baby was not appropriate. Two children had been removed from mother’s care based on neglect findings,. Mother allegedly had concealed her pregnancy and allegedly had not sought appropriate prenatal case. But triable issues of fact remained. The matter was sent back to be heard by a different judge:

Upon review of the record and considering the nature of the prior neglect findings, the passage of time, and the questions concerning the degree of progress made by respondent over that time, we find that there are triable issues of fact precluding summary judgment (see CPLR 3212 [b] …). Petitioner’s motion was centered upon the two prior findings of neglect and respondent’s failure to abide by the corresponding orders of disposition … . However, the petition itself acknowledged that respondent had recently become more compliant with petitioner, resulting in expanded visitation with her children, and had been making improvements in her engagement with services and communication skills. According to the petition, respondent had put together a safety plan for the subject child to live with her, and petitioner saw this as “a strength” and was “hopeful in working with” respondent on this plan. Further, petitioner pointed out in opposition to the motion that she had improved her housing and employment situation and ended a relationship with an abusive partner…. .

Accordingly, the matter must be remitted for a fact-finding hearing concerning the allegations in the petition … . Under the circumstances, we find it appropriate to remit to a different judge for the purpose of conducting the hearing. Matter of Ja’layna FF. (Jalyssa GG.), 2022 NY Slip Op 07271, Third Dept 12-22-22

Practice Point: Summary judgment is almost never appropriate in a child-neglect matter. Here summary judgment finding mother had neglected her newborn based on neglect findings re: two other children and allegations mother had concealed her pregnancy and failed to seek appropriate prenatal care was reversed. There existed several triable issue of fact, including recent cooperation by mother. The matter was remitted for a hearing in front of a different judge.

 

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THE ADMISSION ALLOCUTION IN THIS JUVENILE DELINQUENCY PROCEEDING, WHICH REQUIRES THAT THE JUDGE QUESTION THE JUVENILE AND A PARENT, FELL SHORT OF THE STATUTORY REQUIREMENTS IN THE FAMILY COURT ACT; PETITION DISMISSED (THIRD DEPT).

The Third Department, reversing respondent’s admission to criminal mischief in this juvenile delinquency proceeding, determined: (1) the validity of the admission was not moot despite the completion of the one-year placement, and the issue need to be preserved for review; and (2) the admission allocution was insufficient:

… [R]espondent’s argument that the plea allocution did not comply with Family Ct Act § 321.3 is not moot — despite the expiration of respondent’s placement — because the delinquency determination challenged herein “implicates possible collateral legal consequences” … .

… Family Court must “ascertain through allocution of the respondent and his [or her] parent or other person legally responsible for his [or her] care, if present, that (a) he [or she] committed the act or acts to which he [or she] is entering an admission, (b) he [or she] is voluntarily waiving his [or her] right to a fact-finding hearing, and (c) he [or she] is aware of the possible specific dispositional orders” (Family Ct Act § 321.3 [1]). Although respondent’s mother was present at the April 2021 allocution, Family Court only asked her whether she had sufficient time to speak to respondent about the proceedings….  The record reflects that the court failed to question respondent’s mother regarding the acts to which respondent admitted, his waiver of the fact-finding hearing or her awareness of the possible dispositional options. As a result, Family Court’s allocution fell short of the statutory mandate … . Matter of Christian VV. (Christian VV.), 2022 NY Slip Op 07275, Third Dept 12-22-22

Practice Point: The Family Court Act requires that the admission allocution in a juvenile delinquency proceeding involve both the juvenile and a parent. Here the allocution of respondent and his mother fell short of the statutory requirements and the juvenile delinquent petition was dismissed. Although the respondent had already completed his placement, the issue was not moot because of the possible collateral consequences of the delinquency determination.

 

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THE PARTIES TO THE CONSTRUCTION CONTRACT DID NOT COMPLY WITH THE FORMAL REQUIREMENTS FOR CHANGE ORDERS; THEREFORE THE FORMAL REQUIREMENTS WERE WAIVED AND THE FAILURE TO COMPLY WAS NOT A BREACH (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the failure to follow the construction contract provisions for change orders was not a breach of contract:

… [T]he parties’ lack of compliance with the change order procedure contained in the contract did not constitute a breach. … [T]he trial evidence established that the parties used informal text messages and emails in furtherance of project changes rather than following the formal, detailed change order process set forth in the contract. … [A] written change order requirement included in a construction contract “is not applicable where, as here, the conduct of the parties demonstrates an indisputable mutual departure from the written agreement and the changes were clearly requested by plaintiff and executed by defendant” …  Thus, the record amply demonstrates that the parties “waived their contractual right to insist upon strict compliance” with the change order condition … . 107 S. Albany St., LLC v Scott, 2022 NY Slip Op 07276, Third Dept 12-22-22

Practice Point: The parities did not comply with the formal change order requirements in the construction contract. Therefore the formal requirements were waived and failure to comply was not a breach of contract.

 

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THE REASONS FOR THE DENIAL OF ATTORNEY’S FEES AFTER PETITIONER’S SUCCESSFUL FOIL REQUEST MERELY PARROTED THE STATUTORY LANGUAGE FOR THE LAW-ENFORCEMENT AND SAFETY EXEMPTIONS WITHOUT ANY SUPPORTING FACTS; THEREFORE ATTORNEY’S FEES SHOULD HAVE BEEN AWARDED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined petitioner was entitled to attorney’s fees associated with his ultimately successful FOIL request for the video of the incident which was the basis for the prison disciplinary proceedings. Attorney’s fees were denied on the ground that the respondent had a reasonable basis for denying the request for the video. However the respondent’s reasons for the denial merely parroted the relevant statutory language for the law-enforcement and safety exemptions, which was deemed insufficient:

In denying petitioner’s initial FOIL request and the subsequent administrative appeal, respondent merely quoted the language from the Public Officers Law. It gave no factual explanation or justification for its blanket denial to release the video footage. Although respondent provided an affirmation by its general counsel in this CPLR article 78 proceeding, the affirmation once again merely quoted the statutory language and failed to explain or demonstrate how the footage was compiled for any law enforcement purposes. In a conclusory and speculative fashion, the affirmation referenced some investigations and adjudications, but failed to provide any factual details or explanation of same. Moreover, the affirmation failed to detail how the release of the video footage would affect or interfere with said investigations and adjudications. “[R]espondent[], by merely parroting the statutory language and otherwise failing to provide any adequate sort of harm risked by disclosure, ha[s] failed to meet [its] burden of proving that disclosure of the records would interfere with a pending law enforcement investigation” … .

The affirmation was equally deficient with regard to the safety exemption (see Public Officers Law § 87 [2] [f]), in that it was neither particularized nor specific and failed to articulate an explanation as to how the release of the video footage could potentially endanger or impair the lives of correction officers or their families. Matter of Prisoners’ Legal Servs. of N.Y. v New York State Dept. of Corr. & Community Supervision, 2022 NY Slip Op 07277, Third Dept 12-22-22

Practice Point: In order to deny attorney’s fees after a successful FOIL request, the respondent must demonstrate a reasonable basis for the initial denial of the request. Merely parroting the statutory language for the law-enforcement and safety exemptions is not sufficient. The reasons must be fact-based.

 

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THERE ARE QUESTIONS OF FACT ABOUT WHETHER THE EMERGENCY DOCTRINE SHOULD HAVE BEEN APPLIED TO DISMISS THE COMPLAINT IN THIS CHAIN-REACTION TRAFFIC ACCIDENT CASE; THE FACT THAT IT WAS SNOWING AND THERE WERE ICY ROAD CONDITIONS DID NOT SUPPORT THE APPLICABILIITY OF THE EMERGENCY DOCTRINE AS A MATTER OF LAW (THIRD DEPT). ​

The Third Department, reversing Supreme Court in this chain-reaction traffic accident case, determined there were questions of fact about the weather (snow and ice) and traffic conditions at the time of the accident. Plaintiff was a passenger in the middle car: Supreme Court had dismissed the complaint pursuant to the emergency doctrine:

Striking a vehicle in the rear is negligence as a matter of law absent a sufficient excuse” … . The excuse proffered by defendants here, and accepted by Supreme Court, was that they were confronted with an emergency in the form of sudden snowfall and icy road conditions such that they could not avoid the respective collisions. “[I]n order for a driver to be entitled to summary judgment based upon the emergency doctrine, he or she must demonstrate, as a matter of law, that the emergency situation with which he or she was confronted was not of his or her own making 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” … . “Whether [a] defendant was presented with an emergency is generally a question of fact” … . In addition, “the emergency doctrine is inapplicable [where a] defendant driver was aware of . . . icy road conditions and should have accounted for them properly” … . “[A] driver is expected to maintain enough distance between himself [or herself] and cars ahead of him [or her] so as to avoid collisions with [slowing or] stopped vehicles, taking into account weather and road conditions” … . Williams v Ithaca Dispatch, Inc., 2022 NY Slip Op 07278, Third Dept 12-22-22

Practice Point: Although it was snowing and there were icy road-conditions at the time of this chain-reaction traffic accident, the emergency doctrine should not have been applied to dismiss the complaint as a matter of law.

 

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DEFENDANT OUT-OF-POSSESSION LANDLORD WAS NOT RESPONSIBLE FOR MAINTENANCE OF THE STAIRWAY WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant in this stairway slip and fall case was an out-of-possession landlord who was not responsible for maintenance of the stairway treads:

Article 7(A)(i) of the lease imposed on Cava [the tenant] the obligation to maintain and repair the nonstructural portions of the demised premises … . The testimonial evidence established that Cava, consistent with its obligations under the lease, assumed responsibility over the subject staircase … . Although the lease granted defendants the right to re-enter to make repairs, the stairway condition was not a significant structural or design defect that was contrary to a specific statutory safety provision … . Kamara v 323 Pas Owner LLC, 2022 NY Slip Op 07296, First Dept 12-22-22

Practice Point: The tenant, pursuant to the lease, had assumed responsibility for maintenance of the stairway where plaintiff fell. The defendant out-of-possession landlord was entitled to summary judgment.

 

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