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THE 2022 CONGRESSIONAL AND STATE SENATE REDISTRICTING MAPS DECLARED VOID BECAUSE THEY WERE DRAWN WITH AN UNCONSTITUTIONAL PARTISAN INTENT (CT APP). ​

The Court of Appeals declared the 2022 congressional and state senate redistricting maps void, finding they were drawn with “an unconstitutional partisan intent.” “Opinion by Chief Judge DiFiore. Judges Garcia, Singas and Cannataro concur. Judge Troutman dissents in part in an opinion, in which Judge Wilson concurs in part in a dissenting opinion, in which Judge Rivera concurs in part. Judge Rivera dissents in a separate dissenting opinion, in which Judge Wilson concurs:”

In 2014, the People of the State of New York amended the State Constitution to adopt historic reforms of the redistricting process by requiring, in a carefully structured process, the creation of electoral maps by an Independent Redistricting Commission (IRC) and by declaring unconstitutional certain undemocratic practices such as partisan and racial gerrymandering. No one disputes that this year, during the first redistricting cycle to follow adoption of the 2014 amendments, the IRC and the legislature failed to follow the procedure commanded by the State Constitution. A stalemate within the IRC resulted in a breakdown in the mandatory process for submission of electoral maps to the legislature. The legislature responded by creating and enacting maps in a nontransparent manner controlled exclusively by the dominant political party — doing exactly what they would have done had the 2014 constitutional reforms never been passed. On these appeals, the primary questions before us are whether this failure to follow the prescribed constitutional procedure warrants invalidation of the legislature’s congressional and state senate maps and whether there is record support for the determination of both courts below that the district lines for congressional [*2]races were drawn with an unconstitutional partisan intent. We answer both questions in the affirmative and therefore declare the congressional and senate maps void. As a result, judicial oversight is required to facilitate the expeditious creation of constitutionally conforming maps for use in the 2022 election and to safeguard the constitutionally protected right of New Yorkers to a fair election. Matter of Harkenrider v Hochul, 2022 NY Slip Op 02833, CtApp 4-27-22

Practice Point: The Fourth Department’s determination the 2022 redistricting maps unconstitutionally favored democrats was here upheld by a divided Court of Appeals.

 

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THERE WAS NO OBJECTIVE SUPPORT FOR PLAINTIFF BUS PASSENGER’S CLAIM THE MOVEMENT OF THE BUS WHICH CAUSED HER TO FALL WAS “UNUSUAL AND VIOLENT” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant bus company’s, MTA’s, motion to dismiss the complaint in this bus-passenger injury case should have been granted:

To establish a prima facie case of negligence against a common carrier for injuries sustained by a passenger as a result of the movement of the vehicle, a plaintiff must establish that the movement consisted of a jerk or lurch that was “‘unusual and violent'” … . “Moreover, a plaintiff may not satisfy that burden of proof merely by characterizing the stop as unusual and violent” … . There must be “objective evidence of the force of the stop sufficient to establish an inference that the stop was extraordinary and violent, of a different class than the jerks and jolts commonly experienced in city bus travel and, therefore, attributable to the negligence of defendant” … . “In seeking summary judgment dismissing the complaint, however, common carriers have the burden of establishing, prima facie, that the movement of the vehicle was not unusual and violent” … .

… MTA established its prima facie entitlement to judgment as a matter of law. MTA demonstrated, by submitting the transcript of the plaintiff’s deposition testimony, that the movement of the bus was not unusual and violent or of a “different class than the jerks and jolts commonly experienced in city bus travel” … . The nature of the incident, according to the plaintiff’s deposition testimony, was that she was caused to fall as the bus stopped at the intersection. According to the plaintiff, who did not provide an estimate as to how fast the bus was traveling prior to stopping at the intersection, she was the only passenger on the bus who fell, although there was another passenger standing within two feet of her at the time. The plaintiff testified that she landed on the floor near where she was standing prior to falling down. This is not, in itself, sufficient to provide the objective support necessary to demonstrate that the movement of the bus was unusual and violent, and of a different class than the jerks and jolts commonly experienced in city bus travel … . Orji v MTA Bus Co., 2022 NY Slip Op 02811, Second Dept 4-27-22

Practice Point: In order to survive a motion to dismiss, a bus passenger’s allegation his or her injury was caused by an “unusual and violent” movement of the bus must have some sort of “objective support,” which was absent in this case.

 

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THE COMPOSITE LIEN ENCOMPASSING SEVERAL PARCELS OF PROPERTY WAS NOT INVALID ON ITS FACE BECAUSE IT WAS NOT SHOWN INDIVIDUAL PROPERTY OWNERS HIRED THE RESPONDENT IN SEPARATE TRANSACTIONS; THE LIEN SHOULD NOT HAVE BEEN SUMMARILY DISCHARGED ON THE GROUND THE AMOUNT WAS WILFULLY EXAGGERATED, A FINDING WHICH CAN ONLY BE MADE IN A FORECLOSURE PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the composite lien encompassing several parcels of real property was not invalid on its face and had not bee declared void for wilful exaggeration. Therefore the validity of the lien must be determined in a foreclosure proceeding:

… [T]he composite mechanic’s lien was facially valid and the Supreme Court should not have summarily discharged it. … [T]he composite mechanic’s lien was not invalid because of a failure to apportion the work and material furnished between the four parcels of real property that were identified in the composite mechanic’s lien. The requirement to do so “applies where several transactions, involving the improvement of distinct parcels of property, have been effected at the request of independent owners” … . Here, the petitioners failed to establish that the individual and independent lot owners identified in the composite mechanic’s lien hired BKS in separate and distinct transactions. Furthermore, the composite mechanic’s lien was not invalid on its face merely because it identified multiple lots by their respective tax block and lot designations … . …

The Supreme Court also should not have summarily determined that branch of the petition which alleged that the amount claimed in the composite mechanic’s lien was willfully exaggerated. “Pursuant to Lien Law § 39, the court may declare a lien void and deny recovery if the lienor has willfully exaggerated the amount claimed” … . This Court has held that the remedy in Lien Law § 39-a is “available only where the lien was valid in all other respects and was declared void by reason of willful exaggeration after a trial of the foreclosure action” … . Matter of Matrix Staten Is. Dev., LLC v BKS-NY, LLC, 2022 NY Slip Op 02795, Second Dept 4-27-22

Practice Point: Here the lien should not have have summarily discharged on the ground it encompassed several parcels of property because it was not shown the individual property owners hired respondent in separate transactions. The finding that the amount of the lien was wilfully exaggerated is not a ground for summary discharge. Wilful exaggeration will void a lien, but that determination must be made in a foreclosure proceeding.

 

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PETITIONER WAS ENTITLED TO ATTORNEY’S FEES IN THIS FOIL PROCEEDING; THE RESPONDENTS DID NOT PROVIDE THE BULK OF THE REQUESTED DOCUMENTS UNTIL AFTER THE ARTICLE 78 WAS BROUGHT; RESPONDENTS DID NOT PRESENT AN ADEQUATE EXCUSE FOR FAILING TO INITIALLY DISCLOSE THE REQUESTED DOCUMENTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner was entitled to attorney’s fees as the prevailing party in this FOIL proceeding. It was only after petitioner brought an Article 78 petition that the respondents provided the bulk of the requested documents:

… [T]he respondents did not timely respond to the petitioner’s FOIL request … . The first response, which consisted of four pages of materials, failed to address three of the four enumerated categories of material the petitioner sought. It was not until after the commencement of this proceeding that the respondents provided a significant number of additional documents responsive to the FOIL request. Under the circumstances of this case, the petitioner was the “substantially prevailing” party … . …

… [T]he respondents did not have a reasonable basis for initially denying the petitioner access to the responsive materials. Although a limited amount of material was reasonably withheld based on attorney-client privilege, the “petitioner’s legal action ultimately succeeded in obtaining substantial unredacted post-commencement disclosure responsive to h[is] FOIL request” … . Matter of McNerney v Carmel Cent. Sch. Dist., 2022 NY Slip Op 02799, Second Dept 4-27-22

Practice Point: Respondents didn’t disclose the bulk of the documents described in the FOIL request until the Article 78 proceeding was started and did not have an adequate excuse for the initial incomplete response. Petitioner was entitled to attorney’s fees as the prevailing party.

 

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MOTHER WAS ENTITLED TO A HEARING ON HER CLAIM SHE ADMITTED TO PERMANENT NEGLECT BECAUSE HER COUNSEL WAS INEFFECTIVE; MOTHER ALLEGED COUNSEL DID NOT INFORM HER OF THE RELEVANT BURDENS OF PROOF AT TRIAL (SECOND DEPT).

The Second Department, reversing Family Court, determined mother was entitled to a hearing on whether her counsel was ineffective in failing to inform her of the applicable burdens of proof and in allowing her to admit to permanent neglect:

 “‘A respondent in a proceeding pursuant to Social Services Law § 384-b has the right to the assistance of counsel (see Family Ct Act § 262[a][iv]), which encompasses the right to the effective assistance of counsel'” … . “[T]he statutory right to counsel under Family Court Act § 262 affords protections equivalent to the constitutional standard of effective assistance of counsel afforded to defendants in criminal proceedings” … . Effective assistance is predicated on the standard of “meaningful representation” … .

… [M]other submitted an affidavit alleging that, prior to entering her admission to permanent neglect, counsel failed to inform her of the burden and standard of proof at trial and that she made the admission “because [she] was advised that it was necessary in order to have [her] children returned.” She further alleged that she “would not have made the statements that [she] made to the court if [she] had been fully advised of [her] rights.” The Family Court did not ameliorate these purported deficiencies in its colloquy with the mother, and also omitted any reference to the possible consequences of the finding, including termination of her parental rights … . Matter of Skylar P. J., 2022 NY Slip Op 02793, Second Dept 4-27-22

Practice Point: A party in a neglect proceeding has a right to effective assistance of counsel. Here mother was entitled to a hearing on her claim she would not have admitted to permanent neglect had she been informed of the relevant burdens of proof at trial.

 

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THE SCHOOL PRINCIPAL HAD THE AUTHORITY TO MAKE A PROBABLE CAUSE DETERMINATION IN THIS DISCIPLINARY PROCEEDING WHICH RESULTED IN THE TERMINATION OF A TENURED TEACHER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the NYC Department of Education’s (DOE’s) motion to dismiss the petition to vacate the arbitrator’s award should have been granted. The arbitrator determined the petitioner, a tenured teacher, was properly charged with incompetence, misconduct and neglect of duty and termination the teacher’s employment was appropriate. The teacher petitioner argued unsuccessfully that the initial probable cause determination must be made by the school board, not, as was the case here, the school principal:

… [T]he absence of a vote on probable cause by the “employing board” (Education Law § 3020-a[2]), did not deprive the hearing officer of the jurisdictional authority to hear and determine the underlying disciplinary charges. Rather, … the Chancellor was vested with the authority “[t]o exercise all of the duties and responsibilities of the employing board as set forth in [Education Law § 3020-a]” … , and with the authority to “delegate the exercise of all such duties and responsibilities” … . Matter of Cardinale v New York City Dept. of Educ., 2022 NY Slip Op 02791, Second Dept 4-27-22

Practice Point: In New York City, a school principal has the authority to determine whether there is probable cause to charge a tenured teacher with, for example, incompetence, misconduct and neglect of duty.

 

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THE JUDGE’S INTERFERENCE IN AND RESTRICTIONS ON THE DEFENSE SUMMATION AND IMPROPER EXCLUSION AND ADMISSION OF EVIDENCE REQUIRED REVERSAL IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s murder, assault and weapon-possession convictions in the interest of justice, determined the judge improperly restricted defense counsel’s summation and evidence submissions, and improperly allowed hearsay identification evidence which supported the People’s theory. Identification of the shooter was the key issue, and the eyewitness accounts were inconsistent and contradictory. The judge prohibited defense counsel from questioning the fairness of the identification procedure (line up) in summation and repeatedly interposed “objections” during the defense summation, in the absence of any objection by the prosecutor:

The Supreme Court’s limitation of the defendant’s cross-examination of the police witness and its sua sponte admonishments to defense counsel during summation improperly limited the defendant’s right to challenge the lineup procedures as unfair and suggestive … . Moreover, the court erred in informing the jury and the parties in front of the jury that it had already determined that the pretrial identification procedure was fair and not suggestive, and that the lineup was “constitutional,” wrongly intimating that those facts were not within the jury’s province to determine … . …

The Supreme Court also substantially impaired the defendant’s right “to make an effective closing argument” … through sua sponte “objection sustained” interruptions without any actual objection being posited by the People…. . …

The Supreme Court also erred in admitting into evidence the hearsay statement of an unidentified woman that a man “wearing all gray had the firearm” as an excited utterance exception to the hearsay rule … .. The record contained no evidence from which a trier of fact could reasonably infer that the statement was based on the woman’s personal observation … . …

… [T]he Supreme Court should have granted the defendant’s application to admit into evidence the photographs of the defendant and Cruzado [who was also at the scene] to allow the jury to compare their likenesses, since, under the circumstances of this case, such evidence was highly probative of the defense of third-party culpability and plainly outweighed any danger of delay, prejudice, and confusion … .People v Aponte, 2022 NY Slip Op 02813, Second Dept 4-27-22

Practice Point: In this case, where identification of the shooter was the central issue, the judge improperly prohibited defense counsel from questioning the fairness of the line-up procedure in summation. This and other substantial interference and evidentiary errors by the judge required reversal of the murder conviction in the interest of justice.

 

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THE 21-YEAR DELAY BETWEEN THE CRIME AND DEFENDANT’S ARREST DID NOT VIOLATE DEFENDANT’S SPEEDY-TRIAL RIGHTS (SECOND DEPT).

The Second Department determined the 21-year delay between the crime (rape) defendant’s arrest did not violate defendant’s right to a speedy trial:

… [T]he People met their burden of demonstrating good cause for the delay … . Nineteen years of the subject delay was due to the lack of connection between the semen sample collected at the time of the rape in 1994 and the defendant’s DNA profile, which was not developed and uploaded to the law enforcement databases until 2013. Once the police were able to identify a viable suspect, they had a good-faith basis to wait until they could locate the victim to arrest the defendant. Furthermore, the detectives’ hearing testimony established that the police made reasonable and diligent efforts to locate the victim, and the defendant was arrested immediately after a detective located and interviewed the victim … . The extent of the delay in prosecution is outweighed by the People’s good cause for the delay, the nature of the crime, the fact that there was no period of pretrial incarceration during the period at issue, and the lack of any prejudice from the delay identified by the defendant. We are satisfied that the defendant was not deprived of his due process right to prompt prosecution … . People v Gardner, 2022 NY Slip Op 02816, Second Dept 4-27-22

Practice Point: The 21-year delay between the crime and defendant’s arrest in this rape case was adequately explained. The DNA sample was not connected to a person until nearly 20 years after the rape and the victim was not located until a year or so after that.

 

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THE SENTENCE FOR WEAPON-POSSESSION SHOULD BE CONCURRENT WITH THE SENTENCES FOR THE SHOOTING-RELATED CONVICTIONS (SECOND DEPT).

The Second Department determined the sentence for weapon-possession should be concurrent with the sentences for the shooting-related convictions:

… [T]he sentence imposed on the conviction of criminal possession of a weapon in the second degree should not run consecutively to the concurrent sentences imposed on the convictions of manslaughter in the first degree and attempted murder in the second degree. The evidence adduced at trial failed to establish that the defendant’s “possession of a gun was separate and distinct from his shooting [at the two victims, resulting in the death of one of them]” … .People v Burgess, 2022 NY Slip Op 02814, Second Dept 4-27-22

Practice Point: Unless the possession of a weapon charge is somehow distinct and separate from the possession of the weapon used in the shooting, the sentences for possession of a weapon and the shooting-related convictions should be concurrent.

 

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THE VENUE DESIGNATION IN THE NURSING HOME ADMISSION AGREEMENT, SIGNED BY PLAINTIFF’S DECEDENT’S WIFE, WAS NOT ENFORCEABLE BY THE NURSING HOME (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the nursing home admission agreement, signed by plaintiff’s decedent’s wife (Anderson), was not a sufficient basis for changing the venue of this action against the nursing home from plaintiff’s residence, Bronx County, to the venue designated in the admission agreement, Westchester County. The decision is comprehensive and addresses several substantive issues (agency, rights of non-signatories, for example) not summarized here:

Although the defendant submitted a copy of the admission agreement, it did not provide an affidavit from anyone who signed the agreement, who was present when it was signed, or who otherwise claimed to have personal knowledge of that agreement. The admission agreement was not signed by the plaintiff or the decedent, and it did not identify or include the names of the plaintiff or the decedent anywhere on that document. * * *

An admission agreement may be enforced against an individual where it was properly executed by that individual’s “designated representative” … . As relevant here, “[d]esignated representative shall mean the individual or individuals designated in accordance with [10 NYCRR 415.2(f)] to receive information and to assist and/or act in behalf of a particular resident to the extent permitted by State law” … . The subdivision lists three ways in which a designation may occur … .

As the plaintiff correctly contends, the defendant failed to establish that Anderson was properly designated in any of the three ways authorized by applicable law … . Sherrod v Mount Sinai St. Luke’s, 2022 NY Slip Op 02826, Second Dept 4-27-22

Practice Point: In this case, the venue designation in the nursing home admission agreement, signed by plaintiff’s decedent’s wife, could not be enforced by the nursing home.

 

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