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THE JUDGE’S LAW CLERK WAS THE DISTRICT ATTORNEY WHO PROSECUTED DEFENDANT; THE JUDGE SHOULD NOT HAVE DECIDED DEFENDANT’S MOTION TO VACATE HIS CONVICTION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant’s motion to vacate his conviction should not have been considered by the judge whose law clerk was the District Attorney at the time of defendant’s conviction:

As one of the grounds raised in his CPL article 440 motion, defendant argued that he was deprived of his right to appear before the grand jury due to the actions of the District Attorney. The parties do not dispute that, at the time that defendant’s CPL article 440 motion was decided, the judge’s law clerk was the former District Attorney who had prosecuted defendant. That said, defendant contends that the judge should have recused himself from deciding defendant’s motion. We agree. “Not only must judges actually be neutral, they must appear so as well” … . In view of the law clerk’s direct involvement in defendant’s case during her tenure as the District Attorney and the allegations made in the CPL article 440 motion about her conduct while she was prosecuting him, as well as taking into account the need to maintain the appearance of impartiality, it was an improvident exercise of discretion for the judge to decide defendant’s motion … . People v Roshia, 2022 NY Slip Op 03546, Third Dept 6-2-22

Practice Point: The judge should not have decided defendant’s motion to vacate his conviction because the judge’s law clerk was the DA who prosecuted defendant.

 

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THERE WAS NO EVIDENCE DEFENDANT SHARED THE ATTACKERS’ INTENT TO ROB THE VICTIM; DEFENDANT’S ROBBERY CONVICTIONS UNDER AN ACCOMPLICE-LIABILITY THEORY REVERSED (THIRD DEPT). ​

The Third Department, reversing defendant’s robbery convictions, determined the evidence defendant shared the attackers’ intent to rob the victim was legally insufficient. Defendant had set up a drug purchase from the victim. When the victim arrived, he was attacked and robbed by four masked men. Although the victim testified defendant was one of the masked men, there was strong evidence to the contrary:

The People … did not have any direct evidence demonstrating that defendant knew of or shared an intent to forcibly steal property from the victim … . Indeed, there was no evidence that defendant had prior knowledge of a plan to rob the victim … . People v Smith, 2022 NY Slip Op 03547, Third Dept 6-2-22

Practice Point: Although the defendant sent the victim to the address where the victim was to sell marijuana to a buyer, there was no evidence defendant was aware the buyer intended to attack and rob the victim. Therefore, there was no evidence defendant shared the robbers’ intent and his robbery convictions under an accomplice-liability theory were reversed.

 

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THE JURY WAS NOT INSTRUCTED TO STOP DELIBERATIONS IF IT FOUND THE JUSTIFICATION DEFENSE APPLIED TO THE TOP COUNT (MURDER); DEFENDANT’S MANSLAUGHTER CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THE ISSUE WAS NOT PRESERVED) (THIRD DEPT).

The Third Department, reversing defendant’s manslaughter conviction in the interest of justice, determined the jury instruction on the justification defense was flawed. The instruction did not explain that if the justification defense was the basis for acquittal on the top count (murder here) the jury must not consider the lesser counts:

… Supreme Court inadequately charged the jury regarding his justification defense. Although this issue is unpreserved inasmuch as defendant failed to raise it during the charge conference and did not object to the final charge … , we nevertheless find it appropriate to exercise our interest of justice jurisdiction to take corrective action and reverse defendant’s conviction … .

Where … a defendant raises a claim of self-defense, the trial court commits reversible error if it fails to “instruct the jury that, if it finds the defendant not guilty of a greater charge on the basis of justification, it is not to consider any lesser counts” … . This error was compounded by the verdict sheet, which directed the jury to consider manslaughter in the first degree if the jury found defendant not guilty of murder in the second degree; the verdict sheet did not contain a qualifier if the acquittal of murder was based on the defense of justification … . Even though … “the jury may have acquitted on the top charge[] without relying on defendant’s justification defense, it is nevertheless impossible to discern whether acquittal of the top count[] was based on the jury’s finding of justification so as to mandate acquittal on the lesser count[] to which justification also applied” … .People v Harris, 2022 NY Slip Op 03548, Third Dept 6-2-22

Practice Point: If the justification defense is to be considered by the jury, the jury must be instructed to stop any further deliberations (re: the lesser counts) if the justification defense is deemed to apply to the top count. Here the issue was not preserved by an objection to the jury instruction, but the Third Department reversed in the interest of justice.

 

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THE SENTENCING JUDGE DID NOT SEPARATELY PRONOUNCE A SENTENCE FOR EACH CONVICTION; MATTER REMITTED (THIRD DEPT).

The Third Department, remitting the matter for resentencing, noted the sentencing judge did not pronounce sentence separately for the two counts:

… [W]e are …  obliged to remit for resentencing. The sentencing transcript reflects that County Court imposed a single sentence upon defendant and “failed to pronounce sentence separately on each of the two counts [of] which [she was convicted], as required by CPL 380.20” … . As a result, the matter must be remitted so that County Court can pronounce sentence on each count … . People v Robbins, 2022 NY Slip Op 03549, Third Dept 6-2-22

Practice Point: A sentencing judge must pronounce a sentence separately for each conviction.

 

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A RECENT US SUPREME COURT RULING DOES NOT AFFECT THE NYS COURT OF APPEALS RULING THAT REGULATIONS REQUIRING HEALTH INSURANCE POLICIES TO COVER “MEDICALLY NECESSARY ABORTIONS” BUT WHICH EXEMPT POLICIES PROVIDED BY “RELIGIOUS EMPLOYERS” DO NOT IMPAIR THE FREE EXERCISE OF RELIGION (THIRD DEPT).

The Third Department, on remand from the US Supreme Court, determined the Supreme Court’s recent ruling in Fulton v Philadelphia [141 S Ct 1868] did not overturn the NYS Court of Appeals ruling in Catholic Charities of Diocese of Albany [7 NY3d 510]. In Catholic Charities the Court of Appeals held the requirement that health insurance policies cover “medically necessary abortions” but which exempts policies provided by “religious employers” did not impair the free exercise of religion:

… Catholic Charities “is not directly inconsistent with the rationale employed by the United States Supreme Court in any subsequent case, and is thus binding on us as an intermediate appellate court” … .Roman Catholic Diocese of Albany v Vullo, 2022 NY Slip Op 03550, Third Dept 6-2-22

Practice Point: The NYS Court of Appeals ruling In Catholic Charitie [7 NY3d 510] approving the requirement that health insurance policies cover “medically necessary abortions” (with an exemption for “religious employers”) was not affected by the recent ruling by the US Supreme Court in Fulton v Philadelphia [141 S Ct 1868].

 

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PLAINTIFFS’ ACTION ALLEGING THE LOBBYING ACT IS UNCONSTITUTIONAL AS APPLIED TO THEM SHOULD HAVE BEEN ALLOWED TO PROCEED; PLAINTIFFS ENGAGED IN “GRASSROOTS LOBBYING” IN SUPPORT OF PASSAGE OF THE CHILD VICTIMS ACT (CVA) (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Pritzker, determined plaintiffs’ action alleging the Lobbying Act was unconstitutional as applied to them (First Amendment) should have been allowed to proceed. The opinion is too comprehensive to fairly summarize here. Plaintiffs engaged in publicity aimed at passage of the Child Victims Act (CVA), which extends the statute of limitations for civil and criminal actions stemming from the sexual abuse of children. Although the NYS Joint Commission of Public Ethics (JCOPE) did not end up enforcing the registration and reporting requirements of the Lobbying Act with respect to the plaintiffs’ past activities, it indicated future enforcement if plaintiffs continued with their “grassroots lobbying” efforts:

Plaintiff Katherine C. Sullivan, a resident of Florida, supported the CVA and expressed that support, among other ways, through a website that explained that Sullivan was a survivor of child sexual assault that she was subjected to while attending a school in the City of Troy, Rensselaer County, but that she was barred from seeking legal recourse by then-applicable statutes of limitations. A list of state senators who opposed the CVA was provided, along with a script and postcard template for website visitors to contact state senators to voice support for the CVA. Sullivan also rented digital billboard space in this state that displayed a rotating set of screens, one of which purportedly read, “NY Pass the Child Victims Act,” and another that displayed photographs of state senators next to text asking why they did not support the CVA. Some of the screens also purportedly displayed Sullivan’s website address; all of the screens indicated that they were paid for by plaintiff Kat Sullivan LLC (hereinafter the LLC). Sullivan later arranged for an airplane to circle the Capitol and the school in Troy towing banners that displayed, among other things, the address of her aforementioned website and the hashtag #NYPASSCVA. Sullivan v New York State Joint Commn. on Pub. Ethics, 2022 NY Slip Op 03553, Third Dept 6-2-22

Practice Point: Here the plaintiffs challenged whether the Lobbying Act, which requires lobbyists to register and report, was constitutional as applied to their “grassroots” efforts to garner support for the passage of the Child Victims Act. Supreme Court had dismissed the action. The Third Department partially reinstated it.

 

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PLAINTIFF’S CLAIM FOR PUNITIVE DAMAGES IN THIS BREACH OF AN INSURANCE CONTRACT ACTION SHOULD HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the punitive damages claim against defendant insurer should have been dismissed. Plaintiff was struck by a vehicle when she was in a cross-walk. She settled with the driver’s insurer, with her insurer’s consent, for $25,000. She the brought this breach of contract action against defendant insurer for $225,000, plus punitive damages for a bad-faith breach of the insurance contract:

The elements required to state a claim for punitive damages when the claim arises from a breach of contract are: (1) the defendant’s conduct must be actionable as an independent tort; (2) the tortious conduct must be of the egregious nature set forth in Walker v Sheldon [10 NY2d 401]; (3) the egregious conduct must be directed to the plaintiff; and (4) it must be part of a pattern directed at the public generally. Where a lawsuit has its genesis in the contractual relationship between the parties, the threshold task for a court considering a defendant’s motion to dismiss a demand for punitive damages is to identify a tort independent of the contract … .

… [T]he plaintiff failed to allege an independent tort. There is no separate tort for bad faith refusal to comply with an insurance contract … . While an insurer may be held liable for damages to its insured for the bad faith refusal of a settlement offer … , the plaintiff here failed to state such a cause of action. …

The plaintiff has not alleged any facts from which an inference can be drawn that the defendant’s conduct constituted a gross disregard of the plaintiff’s interests. …

The plaintiff failed to allege any facts from which an inference can be drawn that the defendant’s conduct was of an egregious nature as set forth in Walker v Sheldon, such that it was morally reprehensible and of such wanton dishonesty as to imply a criminal indifference to civil obligations … . Schlusselberg v New York Cent. Mut. Fire Ins. Co., 2022 NY Slip Op 03539, Second Dept 6-1-22

Practice Point: The criteria for punitive damages for breach of contract are difficult to meet. The defendant’s conduct must amount to an independent tort, be morally reprehensible, wantonly dishonest, and criminally indifferent to civil obligations. Here, those criteria were not met by the allegations of breach of an insurance contract.

 

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DEFENDANT PROPERTY OWNER FAILED TO DEMONSTRATE IT WAS THE ALTER EGO OF PLAINTIFF’S EMPLOYER OR THAT PLAINTIFF WAS DEFENDANT’S SPECIAL EMPLOYEE; THEREFORE PLAINTIFF’S PERSONAL INJURY ACTION WAS NOT PRECLUDED BY THE EXCLUSIVE REMEDY ASPECT OF THE WORKERS’ COMPENSATION LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant Zorn Realties, the owner of the property, did not demonstrate it was the alter ego of plaintiff’s employer, Zorn Poultry Farm, and did not demonstrate plaintiff was a special employee of Zorn Realties. Therefore, the negligence action stemming from plaintiff’s fall through a chute or a hole on defendant’s property was not precluded by the exclusive-remedy aspect of the Workers’ Compensation Law:

“‘A defendant moving for summary judgment based on the exclusivity defense of the Workers’ Compensation Law under this theory must show, prima facie, that it was the alter ego of the plaintiff’s employer'” … . “A defendant may establish itself as the alter ego of a plaintiff’s employer by demonstrating that one of the entities controls the other or that the two operate as a single integrated entity” … . However, “a mere showing that the entities are related is insufficient where a defendant cannot demonstrate that one of the entities controls the day-to-day operations of the other” … .

… Although the defendant presented evidence that the two entities were related inasmuch as they shared an address and a liability insurance policy, the defendant failed to establish that the entities shared officers or had identical owners. Additionally, the evidence showed that the entities served different purposes, had separate bank accounts, filed separate tax returns, and did not have a shared workers’ compensation policy … . …

“Many factors are weighed in deciding whether a special employment relationship exists, and generally no single one is decisive . . . Principal factors include who has the right to control the employee’s work, who is responsible for the payment of wages and the furnishing of equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer’s or the general employer’s business . . . The most significant factor is who controls and directs the manner, details, and ultimate result of the employee’s work'” … .

… [T]he defendant failed to establish … that the plaintiff was its special employee at the time of the accident because it did not submit sufficient evidence to establish, inter alia, that it controlled and directed the manner, details, and ultimate result of the plaintiff’s work, nor did it establish that the plaintiff had knowledge of and consented to a special employment relationship … . Mauro v Zorn Realties, Inc., 2022 NY Slip Op 03509, Second Dept 6-1-22

Practice Point: Here the defendant property owner was not able to take advantage of the exclusive-remedy aspect of the Workers’ Compensation Law in this personal injury action. Plaintiff’s employer was not the alter ego of defendant and plaintiff was not defendant’s special employee.

 

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PLAINTIFF’S CAUSES OF ACTION FOR CONSTRUCTIVE DISCHARGE AND HOSTILE WORK ENVIRONMENT SHOULD HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court determined plaintiff’s causes of action for constructive discharge and hostile work environment should have been dismissed. The court laid out the criteria for those causes of action:

“An employee is constructively discharged when her or his employer, rather than discharging the plaintiff directly, deliberately created working conditions so intolerable that a reasonable person in the plaintiff’s position would have felt compelled to resign” … . Here, the defendants established, prima facie, that the plaintiff’s complaints were insufficient to show an intolerable work environment that would lead a reasonable person in that position to feel compelled to resign … . …

A hostile environment claim “involves repeated conduct,” not “[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire” … . Here, the two discrete acts alleged by the plaintiff were insufficient to create a hostile work environment … . Blackman v Metropolitan Tr. Auth., 2022 NY Slip Op 03490, Second Dept 6-1-22

Practice Point: A “constructive discharge” employment-discrimination cause of action requires the deliberate creation of intolerable working conditions designed to force the plaintiff to quit (not demonstrated here). A “hostile work environment” employment-discrimination cause of action requires “repeated conduct” which is not demonstrated discrete acts such as termination, failure to promote, denial of transfer or refusal to hire.

 

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HERE THE DOCTRINE OF RES JUDICATA PRECLUDED PLAINTIFF’S FRAUDULENT CONVEYANCE ACTION; THE CAUSE OF ACTION COULD HAVE BEEN RAISED IN THE PRIOR ACTION WHICH WAS DISMISSED (FIRST DEPT).

The Frist Department, reversing Supreme Court, determined the fraudulent conveyance cause of action was precluded by the doctrine of res judicata. Although the fraudulent conveyance claim was not alleged in the prior action, which was dismissed, it could have been raised in the prior action:

In 2016, plaintiff sued NBC, NBF, and PIM, alleging — as she does in the instant action — that NBC and NBF were PIM’s alter egos. In August 2018, Supreme Court (Gerald Lebovits, J.) granted NBC and NBF’s motion to dismiss that action.

While the prior action did not allege fraudulent conveyance, the doctrine of res judicata bars plaintiff from raising that claim here because she could have raised it in the prior action … . Plaintiff learned on or about May 9, 2017 that nonparty Conquest Capital Group had repurchased the equity it had previously sold to PIM. She filed an amended complaint in the prior action on May 26, 2017. Although plaintiff alleges that she did not discover the price at which Conquest repurchased its equity until November 2018, she could have learned this fact earlier by making inquiries … . Aboelnaga v National Bank of Can., 2022 NY Slip Op 03467, First Dept 5-31-22

Practice Point: The doctrine of res judicata precludes causes of action which could have been investigated and raised in a prior action.

 

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