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THE ACCUSATORY INSTRUMENT CHARGING THE DEFENDANT WITH “FRAUDULENT ACCOSTING” WAS FACIALLY SUFFICIENT; IT WAS ENOUGH TO ALLEGE THAT DEFENDANT SPOKE FIRST TO PERSONS PASSING AROUND HIM ON THE SIDEWALK ASKING FOR DONATIONS FOR THE HOMELESS; THERE WAS NO NEED TO ALLEGE DEFENDANT WAS AGGRESSIVE OR PERSISTENT OR TARGETED AN INDIVIDUAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over an extensive three-judge dissent, determined the accusatory instrument charging defendant with “fraudulent accosting” was facially sufficient. Defendant set up a couple of milk crates as a table in the sidewalk and asked people for donations to the homeless as they walked around the table. Defendant unsuccessfully argued the term “accost” required an element of aggressiveness or persistence directed toward an individual:

A person is guilty of fraudulent accosting when he or she “accosts a person in a public space with intent to defraud him of money or other property by means of a trick, swindle or confidence game” (Penal Law § 165.30 [1]). * * *

During the relevant period in 1952, when the legislature created the offense of fraudulent accosting … contemporary dictionaries defined “accost” to mean either to “approach,” to “speak to first,” or to “address” … .No dictionary cited from the relevant time period limits the term to an aggressive or persistent physical approach … . People v Mitchell, 2022 NY Slip Op 03360, Ct App 5-24-22

Practice Point: Here, to determine the meaning of the word “accost” as used in the “fraudulent accosting” statute, the Court of Appeals referred only to definitions of the word in dictionaries extant in 1952, when the statute was enacted. and ignored more recent definitions.

 

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DEFENDANT DID NOT DEMONSTRATE CONVICTION OF THE B MISDEMEANORS WITH WHICH HE WAS CHARGED WOULD RESULT IN DEPORTATION; THEREFORE DEFENDANT WAS NOT ENTITLED TO A JURY TRIAL (CT APP).

The Court of Appeals, over an extensive two-judge dissent, determined that the defendant did not demonstrate the misdemeanors with which he was charged triggered a right to a jury trial because conviction would result in deportation:

Defendant was originally charged with public lewdness, two counts of forcible touching, and two counts of sexual abuse in the third degree after police officers observed him masturbating on a subway platform and pressing himself against two women on a subway car. The People thereafter filed a prosecutor’s information reducing the two class A misdemeanor charges of forcible touching to attempted forcible touching, so that the top charges against defendant were Class B misdemeanors obviating his right to a jury trial under state statute … . After a bench trial, defendant was convicted of public lewdness and acquitted of all other charges. …

While the Appellate Term first improperly conducted the deportability analysis based only on the crime of conviction, that court went on to correctly analyze defendant’s deportability based on all the charges he faced (see Suazo, 32 NY3d at 508). It remained, however, “the defendant’s burden to overcome the presumption that the crime charged is petty and establish a Sixth Amendment right to a jury trial” (id. at 507). … [D]efendant’s conclusory allegation that he was deportable if convicted “on any of the charged B misdemeanors,” supported by a bare citation to 8 USC § 1227 (a) (2) (A) (ii), under which an alien is deportable if “convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct,” was insufficient to establish his right to a jury trial. People v Garcia, 2022 NY Slip Op 03359, CtApp 5-24-22

Practice Point: Generally B misdemeanors do not warrant a jury, as opposed to a bench, trial. However, if conviction will result in deportation, the defendant has a right to a jury trial. Here the Court of Appeals held the defendant did not demonstrate conviction of the B misdemeanors with which he was charged triggered deportation.

 

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THE ANTI-SLAPP STATUTES IN THE CIVIL RIGHTS LAW PROTECTED DEFENDANT AGAINST A DEFAMATION ACTION BY THE PLASTIC SURGEON ABOUT WHOM DEFENDANT POSTED NEGATIVE ONLINE REVIEWS; THE COMPLAINT WAS PROPERLY DISMISSED AND DEFENDANT WAS ENTITLED TO ATTORNEY’S FEES AND DAMAGES (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Rodriguez, in a matter of first impression, determined the Civil Rights Law anti-SLAPP statutes protected defendant’s negative online reviews of plaintiff Aristocrat Plastic Surgery and Dr. Kevin Tehrani. Supreme Court dismissed the complaint but did not award defendant attorney’s fees or damages because the anti-SLAPP statutes were deemed not to apply. The First Department held that the anti-SLAPP statutes applied and defendant was entitled to attorney’s fees and damages:

… [D]efendant posted her reviews on two public internet forums, one of which has a stated purpose of being a key advisor for people considering plastic surgery, and the purpose of defendant’s reviews was to provide information to potential patients, including reasons not to book an appointment with Dr. Tehrani. Defendant’s posts concerning the plastic surgery performed upon her by Dr. Tehrani qualify as an exercise of her constitutional right of free speech and a comment on a matter of legitimate public concern and public interest—namely, medical treatment rendered by a physician’s professional corporation and the physician performing surgery under its auspices … . We therefore find that defendant’s negative website reviews of plaintiffs’ services constitute a matter of “public interest” as set forth in Civil Rights Law § 76-a(1)(d).

Since defendant’s posts fall under the ambit of the amended anti-SLAPP law, defendant is entitled to seek damages and attorneys’ fees under Civil Rights Law §§ 70-a and 76-a(1)(a)(1). Aristocrat Plastic Surgery, P.C. v Silva, 2022 NY Slip Op 03311, First Dept 5-19-22

Practice Point: The anti-SLAPP statutes in the Civil Rights Law protected defendant from a defamation action by the plastic surgeon about whom defendant posted negative online reviews. The doctor’s complaint was dismissed and defendant was entitled to attorney’s fees and damages. Business reviews are matters of public interest and concern.

 

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PLAINTIFF ALLEGEDLY TRIPPED AND FELL CARRYING A PIPE DOWN A PLYWOOD RAMP IN THIS LABOR LAW 200 ACTION; THERE WERE QUESTIONS OF FACT WHETHER THE RAMP CONSTITUTED A DANGEROUS CONDITION AND WHETHER THE DEFENDANTS HAD CONSTRUCTIVE NOTICE OF IT (FIRST DEPT).

The First Department, reversing Supreme Court, determined there were questions of fact whether a plywood ramp was a dangerous condition and whether the defendants had constructive knowledge of the ramp in this Labor Law 200 action. Plaintiff allegedly tripped and fell when carrying a pipe down the ramp:

Defendants established their prima facie entitlement to judgment as a matter of law on the causes of action alleging a violation of Labor Law § 200 and common-law negligence by demonstrating that they did not have authority to supervise or control the means and methods of plaintiff’s work. However, to the extent those causes of action are also predicated on the existence of a dangerous or defective condition (a defective plywood ramp), triable issues of fact remain as to whether the owner or general contractor had actual or constructive notice … . Defendants’ witnesses all testified to a lack of knowledge of the plywood ramp, thereby establishing lack of actual notice. However, plaintiff raised a triable issue as to constructive notice by his deposition testimony and affidavit that he had seen the plywood ramp in place when he began working at the construction site, although he never traversed it prior to his accident, which occurred months into his work, and that defendants’ trailers were located only 30 to 50 feet from where plaintiff’s accident occurred. Contrary to defendants’ insinuations, the number of witnesses contradicting plaintiff’s account is not a basis for granting them summary judgment; it merely raises issues of credibility for the fact-finder. Jackson v Hunter Roberts Constr., L.L.C., 2022 NY Slip Op 03321, First Dept 5-19-22

Practice Point: The First Department in this Labor Law 200 action noted that a conflict between the plaintiff’s testimony and several of defendants’ witnesses on the issue of constructive notice of the allegedly dangerous condition which caused plaintiff’s slip and fall was not a sufficient ground for granting defendants’ summary judgment motion. The conflict merely raised a credibility issue for trial which is not appropriately determined at the summary judgment stage.

 

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PLAINTIFF IN THIS NEGLIGENT-HIRING ACTION AGAINST THE HOSPITAL WHICH EMPLOYED A DOCTOR WHO ALLEGEDLY SEXUALLY ASSAULTED HER AND OTHER PATIENTS SOUGHT DISCOVERY; THE IDENTITIES OF THE OTHER ASSAULTED PATIENTS WERE NOT PROTECTED BY THE DOCTOR-PATIENT PRIVILEGE; PARTY STATEMENTS WERE NOT PROTECTED BY THE QUALITY ASSURANCE PRIVILEGE; AND PLAINTIFF WAS ENTITLED TO THE NAMES OF THE DOCTOR’S COWORKERS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff, who, along with other patients, was allegedly sexually assaulted by a doctor, Newman, employed by defendant hospital (Mount Sinai), was entitled to certain discovery. Plaintiff sought discovery of party statements, incident reports, the identities of the other assaulted patients, and the names of the doctor’s coworkers at the time of each assault. Plaintiff was entitled to documents not protected by the quality assurance privilege. The doctor-patient privilege did not extend to the identities of the other assaulted patients. And the names of the doctor’s coworkers were in a statement prepared by the Health and Human Services Department to which plaintiff was entitled:

We reject Mount Sinai’s assertion that privilege excuses it from complying with plaintiff’s discovery demands regarding the identities of the other three patients that defendant Newman assaulted. The doctor-patient privilege provided for by CPLR 4504(a) protects information relevant to a patient’s medical treatment, but the privilege does not cover incidents of abuse not part of a patient’s treatment … . Moreover, while the court stated that disclosure would violate HIPAA, federal regulations provide for disclosure of HIPAA-protected documents subject to a showing that the party seeking disclosure has made a good faith effort to secure a qualified protective order, and plaintiff has done so in each of her motions (45 CFR 164.512[e][ii], [v] …).

… [T]he identities of defendant Newman’s coworkers at the times of each of the assaults are relevant and must be disclosed, as those coworkers may have information concerning his conduct … . The names of the coworkers were contained in a statement of deficiencies prepared by Department of Health and Human Services, Center for Medicare and Medicaid Services, and plaintiff is entitled to production of that statement, redacted to remove conclusions of law and opinions of the Department of Health and Human Services … . Newman v Mount Sinai Med. Ctr., Inc., 2022 NY Slip Op 03327, First Dept 5-19-22

Practice Point: Here plaintiff was allegedly sexually assaulted by a doctor who pled guilty to assaulting other patients. Plaintiff sued the hospital which employed the doctor under a negligent hiring and retention theory. The names of the other assaulted patients were not protected by the physician-patient privilege. Party statements were not protected by the quality assurance privilege. And plaintiff was entitled to the names of the doctor’s coworkers.

 

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THE NEW YORK CITY ADMINISTRATIVE CODE PROVISION WHICH PROHIBITS “COMPRESSION OF THE DIAPHRAGM” (BY KNEELING, SITTING OR STANDING ON A PERSON) WHEN EFFECTING AN ARREST IS NOT VOID FOR VAGUENESS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the NYC Administrative Code provision prohibiting and criminalizing the use of certain methods of restraint in effecting an arrest was not void for vagueness.

Plaintiffs challenge Administrative Code § 10-181 as unconstitutionally vague and preempted by New York State law. This provision, which became effective July 15, 2020, makes it a criminal misdemeanor to use certain methods of restraint “in the course of effecting or attempting to effect an arrest” (Administrative Code § 10-181[a]). Specifically, the statute prohibits “restrain[ing] an individual in a manner that restricts the flow of air or blood by compressing the windpipe or the carotid arteries on each side of the neck [the chokehold ban], or sitting, kneeling, or standing on the chest or back in a manner that compresses the diaphragm [the diaphragm compression ban]” ,,, , …

The only language plaintiffs take issue with is “in a manner that compresses the diaphragm.” But the meaning of this language, even if “imprecise” or “open-ended,” is sufficiently definite “when measured by common understanding and practices” … . Police officers — the targets of the law — can be (and are) trained on the location and function of the diaphragm. And even plaintiffs have no difficulty understanding the meaning of the word “compress[]” when used in the context of the accompanying chokehold ban, which they do not challenge. That it may not be the most accurate word, from a medical standpoint, to describe what happens to the diaphragm when someone sits, kneels, or stands on it does not mean that it is incapable of being understood. Police Benevolent Assn. of the City of N.Y., Inc. v City of New York, 2022 NY Slip Op 03329 First Dept 5-19-22

Practice Point: The NYC Administrative Code provision which prohibits and criminalizes “compressing the diaphragm” by sitting, kneeling or standing on a person when effecting an arrest is not void for vagueness.

 

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SUPREME COURT SHOULD NOT HAVE REMOVED THE INCAPACITATED PERSON’S (IP’S) SON AS GUARDIAN OF THE PROPERTY WITHOUT HOLDING A TESTIMONIAL HEARING, CRITERIA FOR REMOVAL EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge should not have merely accepted the Court Examiner’s position that petitioner, the Incapacitated Person’s (IP’s) son, should be removed as guardian of the property. A hearing should have been held:

Petitioner interposed an answer in which he raised issues of law and fact. He claimed, in part, that some of his actions did not require further court order but were permissible under the original order appointing him as guardian. He also claimed that he obtained prior court approval, albeit in the informal manner (i.e. emails or phone calls) employed by the previous judge who was assigned to this matter. He also made credible arguments that the decisions he made benefitted, and did not harm, the IP’s estate … .

Rather than hold a testimonial hearing, Supreme Court simply accepted what the Court Examiner claimed in her motion and appointed a nonrelative successor guardian…. . …

We have long recognized that strangers will not be appointed either a guardian of the person or the property unless it is impossible to find someone within the family circle who is qualified to serve … . The preference for a relative may be overridden by a showing that the guardian-relative has rendered inadequate care to the IP, has an interest adverse to the IP or is otherwise unsuitable to exercise the powers necessary to assist the IP … . Moreover, the ultimate remedy of removal may be an abuse of discretion, where a guardian’s errors do not prejudice or harm the estate. The court should also consider whether other less drastic remedies, such as ordering compliance or reducing the Guardian’s compensation, would be appropriate. None of these considerations were addressed by the Supreme Court before removing petitioner…. . Matter of Roberts, 2022 NY Slip Op 03336, First Dept 5-19-22

Practice Point: Here Supreme Court improperly accepted the Court Examiner’s position and removed the Incapacitated Person’s (IP’s) son as guardian of the property without holding a hearing or making any findings. A full testimonial hearing, giving petitioner (the IP’s son) the opportunity to be heard, should have been held. The court noted that appointing a stranger as guardian is a last resort and that there are options, such as reducing a guardian’s compensation, which should be considered.

 

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THE INDEMNIFICATION CLAUSE IN THIS LADDER-FALL CASE STATED THAT THE CONTRACTOR FOR WHOM THE INJURED PLAINTIFF WORKED WOULD HOLD THE “OWNER’S AGENT” HARMLESS AND DID NOT MENTION THE PROPERTY OWNER; THE CONTRACT MUST BE STRICTLY CONSTRUED; THE PROPERTY OWNER’S INDEMNIFICATION ACTION AGAINST THE CONTRACTOR SHOULD HAVE BEEN DISMISSED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the indemnification clause in the ladder-fall case must be strictly construed. The clause stated that the contractor for whom plaintiff worked, Collins, would hold harmless the “owner’s agent” but did not mention the property owner, LIC. Therefore LIC’s indemnification action against Collins should have been dismissed:

Plaintiff alleged common-law negligence, including failure to provide her with a safe ladder, and violations of Labor Law §§ 200, 202, 240(1)-(3), and 241(6). * * *

LIC commenced this third-party action against Collins asserting that “Collins was obligated to provide plaintiff, its employee, with the necessary equipment to enable her to properly and safely perform her cleaning related duties” at the premises, and that plaintiff’s injuries were due to Collins’ failure to perform its duties under the contract and provide her with the proper tools, equipment, supervision, direction, and control. The third-party complaint also asserted that Collins agreed to indemnify LIC from any accidents, injuries, claims, or lawsuits arising out of the cleaning related services Collins provided at the premises. …

The indemnification provision states that Collins shall “hold harmless the OWNER’S AGENT from all claims by Tenants or others whose personnel or property may be damaged by [Collins], its operators, and including but not limited to the use of any of the required equipment or material.” Tishman is designated as the “owner’s agent” in the contract. LIC is neither identified nor included under the indemnification provision and the indemnification provision must be “strictly construed” … . Tavarez v LIC Dev. Owner, L.P., 2022 NY Slip Op 03339, First Dept 5-19-22

Practice Point: Indemnification clauses in contracts must be strictly construed. Here the contract said the contractor for whom the injured plaintiff worked would hold harmless the “owner’s agent” and did not mention the owner. Therefore the owner’s action against the contractor for indemnification should have been dismissed.

 

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PETITIONER-INMATE WAS DENIED DUE PROCEES WHEN HE WAS NOT ALLOWED TO VIEW A VIDEO OF THE INCIDENT WHICH RESULTED IN THE MISBEHAVIOR CHARGE; NEW HEARING ORDERED (THIRD DEPT).

The Third Department, annulling the petitioner-inmate’s misbehavior determination, held that the petitioner was denied due process by not being given the opportunity to see the video of the incident:

“[A]n [incarcerated individual] ‘should be allowed to call witnesses and present documentary evidence in his [or her] defense when permitting him [or her] to do so will not be unduly hazardous to institutional safety or correctional goals'” … . The videotaped incident occurred while petitioner was incarcerated at a different facility. The Hearing Officer informed petitioner that, due to the format of the video, it could not be played in the hearing room and could only be played on equipment located in a secure area of the facility from which petitioner was barred entry. The Hearing Officer stated that he had viewed the video in the secure area, and he described what he believed the video depicted. Petitioner objected, arguing that he was being prevented from providing exculpatory testimony as to what occurred in the video. The Hearing Officer denied the objection, stating that ‘the video speaks for itself,’ and the record reflects that he relied, in part, on the video in reaching the determination of guilt. Contrary to respondent’s contention, the explanation that the only video equipment capable of playing the video was in a secure area, without any apparent attempt to either move the equipment or find other equipment capable of playing the video for petitioner, did not articulate institutional safety or correctional goals sufficient to justify denying petitioner’s right to reply to evidence against him … .. Similarly, the fact that petitioner may have seen the video at his former facility during a prior hearing on these charges before a different Hearing Officer, a hearing that resulted in a determination that was administratively reversed, does not excuse the denial of petitioner’s right to view the video during the new hearing and offer exculpatory testimony as to its contents … .

As to the remedy, we conclude that a new hearing, not expungement, is appropriate. Matter of Proctor v Annucci, 2022 NY Slip Op 03298, Third Dept 5-18-22

Practice Point: Prison inmates charged with misbehavior have due process rights. Here the petitioner-inmate was entitled to see the video which allegedly depicted the charged misbehavior. The determination was annulled and a new hearing ordered.

 

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PLAINTIFF ALLEGED DEFENDANTS-ATTORNEYS DID NOT ADVISE IT OF AN AMENDMENT TO THE COMMERCIAL LEASE WHICH EFFECTIVELY ELIMINATED THE OPTION FOR PLAINTIFF TO PURCHASE THE PROPERTY FOR $11.4 MILLION IF THE LANDLORD RECEIVES A BONA FIDE PURCHASE OFFER; THE LANDLORD IN FACT RECEIVED SUCH AN OFFER AND PLAINITFF EXERCISED ITS OPTION, BUT PAID $14.5 MILLION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendants-attorneys’ motion for summary judgment in this legal malpractice action should not have been granted. Plaintiff alleged defendants-attorneys did not advise it of an amendment to the commercial lease. The lease included an option to purchase the property for $11.4 million. The amendment extinguished the option to purchase for $11.4 million upon purchase of the property. The landlord received a bona fide purchase offer and plaintiff exercised its option, but paid $14.5 million:

Defendants’ email attaching a marked-up copy of the relevant lease section does not establish as a matter of law that defendants advised plaintiff as to the meaning of the amendment, and the parties dispute the oral advice that was provided by defendants. … [T]he fact that plaintiff’s agent read the amendment does not establish as a matter of law that defendants were not negligent … . Any evidence that plaintiff’s agent, a sophisticated businessman, knew or should have known that the amendment was substantive despite defendants’ advice that it was “housekeeping” does not disprove defendants’ negligence but is evidence that can be offered in mitigation of damages … .

… The fact that plaintiff sent the signed lease to the landlord without defendants’ knowledge does not as a matter of law refute causation. Alrose Steinway, LLC v Jaspan Schlesinger, LLP, 2022 NY Slip Op 03310, First Dept 5-19-22

Purchase Point: Here the attorneys’ alleged failure to advise the plaintiff of the significance of an amendment to a commercial lease raised a question of fact in this legal malpractice action. The amendment eliminated plaintiff’s option to purchase the property for $11.4 million if the landlord received a bona fide purchase offer. The landlord received such an offer and plaintiff exercised its option to purchase, but paid $14.5 million.

 

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