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WORKERS’ COMPENSATION DEATH BENEFIT CLAIMS CANNOT BE TRANSFERRED TO THE SPECIAL FUND ON OR AFTER JANUARY 1, 2014, EVEN IF THE DISABILITY CLAIM FOR THE SAME INJURY HAD BEEN TRANSFERRED BEFORE THE CUT-OFF (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, over a two-judge dissent, determined Workers’ Compensation death benefit claims which accrued on orf after January 1, 2014, cannot be transferred to the Special Fund for Reopened Cases (Special Fund) even if the disability claim for the same injury had been transferred prior to the cut-off:

Under Workers’ Compensation Law (WCL) § 25-a (1-a), no liability for claims submitted on or after January 1, 2014, may be transferred to the Special Fund for Reopened Cases (the Special Fund). The common issue presented in these appeals is whether WCL § 25-a (1-a) forecloses the transfer of liability for a death benefits claim submitted on or after the cut-off, regardless of the prior transfer of liability for a worker’s disability claim arising out of the same injury. Based on the plain statutory language, which broadly applies to all claims submitted after the deadline, and our established precedent that a death benefits claim accrues at the time of death and “is a separate and distinct legal proceeding” from the worker’s original disability claim … , we conclude that liability for the death benefits claims at issue here could not be transferred to the Special Fund. Matter of Verneau v Consolidated Edison Co. of N.Y., Inc., 2021 NY Slip Op 06531, CtApp 11-23-21

 

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IF QUESTIONING A DEFENDANT ABOUT WHERE HE/SHE LIVES SERVES AN ADMINISTRATIVE PURPOSE AND IS NOT A DISGUISED ATTEMPT TO OBTAIN INCRIMINATING INFORMATION, DEFENDANT’S ANSWER IS SUBJECT TO THE PEDIGREE EXCEPTION TO THE MIRANDA REQUIREMENT; DNA EVIDENCE GATHERED BY THE FORENSIC STATISTICAL TOOL (FST) SHOULD NOT HAVE BEEN ADMITTED WITHOUT HOLDING A FRYE HEARING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, over a two-judge dissent, determined: (1) under the facts, the defendant’s answer to the police officer’s question regarding where he lived fell within the “pedigree exception” to the Miranda requirement (and therefore was not suppressible); and (2), the DNA evidence generated by the forensic statistical tool (FST) should not have been admitted without holding a Frye hearing:

We hold that the pedigree exception will not apply even if the pedigree question is reasonably related to police administrative concerns where, under the circumstances of the case, a reasonable person would conclude based on an objective analysis that the pedigree question was a “disguised attempt at investigatory interrogation” … . …

… [T]the pedigree questions were not a disguised attempt at investigatory interrogation … . … [T]he police asked defendant his name, date of birth, and where he lived immediately after their entry to the apartment, before the apartment had been searched and before any contraband had been found. The detective further testified that it is standard practice for all adults found at a location where a search warrant is executed to be handcuffed and asked these pedigree questions, regardless of whether contraband is found during the search. That defendant’s response ultimately turned out to be incriminating does not alter the conclusion that, at the time it was asked, the question was not a disguised attempt at investigatory interrogation by the police … . * * *

Williams [35 NY3d 24] contains our reasoning on the Frye issue with respect to the FST. …

… “FST is a proprietary program exclusively developed and controlled by OCME [New York City Office of Chief Medical Examiner],” and … the approval of the DNA Subcommittee was “no substitute for the scrutiny of the relevant scientific community” … . People v Wortham, 2021 NY Slip Op 06530, CtApp 11-23-21

 

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DEFENDANT’S CHALLENGE TO CERTIFICATION AS A SEX OFFENDER WAS FIRST RAISED IN THE APPELLATE DIVISION AND WAS NOT PRESERVED FOR CONSIDERATION BY THE COURT OF APPEALS; THE ILLEGAL SENTENCE EXCEPTION TO THE PRESERVATION REQUIREMENT DOES NOT APPLY BECAUSE SORA CERTIFICATION IS NOT PART OF THE SENTENCE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Cannataro, over a two-judge dissent, determined the challenge to the legality of defendant’s certification as a sex offender, first raised on appeal to the Appellate Division, was not preserved and the illegal sentence exception to the preservation requirement did not apply:

Defendant thereafter pleaded guilty to … burglary in the first degree as a sexually motivated felony … . … [T]he court … advised defendant that he would have to register pursuant to SORA upon his release from prison. * * *

On appeal to the Appellate Division, defendant argued for the first time that his certification as a sex offender was unlawful because his crime of conviction is not an enumerated registerable sex offense under Correction Law § 168-a (2) (a). * * *

The Appellate Division agreed with defendant that under the “clear and unambiguous” language of Correction Law § 168-a (2) (a) “burglary in the first degree as a sexually motivated felony is not a registerable sex offense under SORA” … . * * *

“We have recognized ‘a narrow exception to the preservation rule’ where a court exceeds its powers and imposes a sentence that is illegal in a respect that is readily discernible from the trial record” … . However, “not all claims arising during a sentencing proceeding fall within the exception” … . * * *

… [S]ex offender certification is effectuated by the court pursuant to Correction Law § 168-d and is not addressed in either the Criminal Procedure Law or Title E of the Penal Law. … SORA certification is not part of a sentence and the illegal sentence exception to the preservation requirement does not apply to challenges to certification as a sex offender. People v Buyund, 2021 NY Slip Op 06529, CtApp 11-23-21

 

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THE $140 MILLION PAID BY BEAR STEARNS TO THE SEC TO SETTLE AN ACTION ALLEGING THE FACILITATION OF LATE TRADING WAS NOT A “PENALTY IMPOSED BY LAW” AND THEREFORE WAS A COVERED LOSS UNDER THE TERMS OF THE INSURANCE POLICIES (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge DiFiore, over an extensive dissent, determined the funds paid to the Security and Exchange Commission (SEC) to settle an action alleging Bear Stearns “facilitated late trading” and “deceptive market timing activity” did not constitute a “penalty imposed by law” and therefore was a covered loss under the insurance policies:

… [U]nder relevant New York law, penalties have consistently been distinguished from compensatory remedies, damages, and payments otherwise measured through the harm caused by wrongdoing. Thus, at the time the parties contracted, a reasonable insured would likewise have understood the term “penalty” to refer to non-compensatory, purely punitive monetary sanctions. In this case, the question therefore distills to whether the disputed $140 million settlement payment meets that standard. …

… Bear Stearns demonstrated that the $140 million disgorgement payment was calculated based on wrongfully obtained profits as a measure of the harm or damages caused by the alleged wrongdoing that Bear Stearns was accused of facilitating. This can be contrasted with the $90 million payment denominated a “penalty,” which was not derived from any estimate of harm or gain flowing from the improper trading practices. J.P. Morgan Sec. Inc. v Vigilant Ins. Co., 2021 NY Slip Op 06528, CtApp 11-23-21

 

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THE OUT-OF-POSSESSION LANDLORD IN THIS SLIP AND FALL CASE DEMONSTRATED (1) THE LEASE DID NOT REQUIRE IT TO MAINTAIN A DRAIN WHICH PERIODICALLY BECAME CLOGGED CAUSING GARBAGE TO FLOAT TO THE SIDEWALK, AND (2) IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE PRESENCE OF THE GARBAGE ON THE SIDEWALK WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the out-of-possession landlord, SMHS, was not responsible for the fish skin on the sidewalk which allegedly caused plaintiff to slip and fall. The tenant, Lobster, a wholesale seafood company, had contracted with defendant Sanitation to remove garbage, including fish parts, from the tenant’s premises. There was a question of fact whether Sanitation was liable under a contract-based Espinal theory for launching an instrument of harm. But SMHS demonstrated the lease did not require SMHS to maintain the sidewalk or the drains which at times became clogged with garbage and that it did not have actual or constructive knowledge of the dangerous condition:

SMHS, an out-of-possession landlord, was not contractually obligated to maintain the premises … .Although its lease with Lobster did not demise to Lobster “the pipes, ducts, conduits, wires, fixtures and equipment, the structural elements which serve the Demised Premises,” SMHS and Lobster’s course of conduct establishes that Lobster was responsible for maintaining and repairing the trench drain … . Moreover, although the lease afforded SMHS a contractual right of reentry to make needed repairs, liability would not be predicated on “‘a significant structural or design defect that is contrary to a specific statutory provision'” … .

Nor can SMHS be held liable for plaintiff’s injuries under Administrative Code of City of NY § 7-210, which imposes a nondelegable duty on land owners to maintain their sidewalks in a reasonably safe condition … . SMHS established … that it neither created the hazardous condition nor had actual notice of it or constructive notice of its existence for a sufficient length of time to discover and remedy it … . Arias v Sanitation Salvage Corp., 2021 NY Slip Op 06534, First Dept 11-23-21

 

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A SUBPOENA ISSUED BY AN ATTORNEY IS A “JUDICIAL” SUBPOENA SUBJECT TO A CONTEMPT PROCEEDING WITHOUT THE NEED TO FIRST SEEK A COURT ORDER COMPELLING COMPLIANCE (FIRST DEPT).

The First Department, reversing Supreme Court, determined a subpoena issued by an attorney was a “judicial” subpoena and defendant Patterson’s failure to appear for a deposition and produce documents was punishable by contempt without the need to first obtain a court order compelling compliance:

Critical to the resolution of this appeal is whether this type of subpoena is a “judicial” subpoena, as defined by CPLR 2308(a), or a “non-judicial” subpoena, as defined by CPLR 2308(b). … [T]he disobedience of a judicial subpoena is punishable by contempt of court, while a person served with a non-judicial subpoena cannot be held in contempt unless the court first issues an order compelling compliance with the subpoena that is then disobeyed  … .

We find that the subpoena is a “judicial” subpoena, the disobedience of which is punishable by contempt … . CPLR 2308(a) embraces subpoenas issued by an officer of the court (such as an attorney) at any stage of a judicial proceeding, regardless of whether the subpoena was specifically returnable in court … . Cadlerock Joint Venture, L.P. v Patterson, 2021 NY Slip Op 06535, First Dept 11-23-21

 

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DEFENDANT HAD BEEN TAKEN DOWN TO THE GROUND AND HANDCUFFED AT THE TIME THE BACKPACK HE WAS WEARING WAS SEARCHED; THE PEOPLE PRESENTED NO EVIDENCE OF EXIGENCY; THE SEARCH WAS THEREFORE UNJUSTIFIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the People did not demonstrate exigent circumstances which justified the search of the backpack he was wearing. The defendant had been taken down to the ground and handcuffed at the time of the search:

At the suppression hearing, when questioned as to why he patted down defendant and the drawstring backpack, the officer merely responded “[f]or our safety.” * * *

Exigency justifying the search of a container incident to arrest is not established in the absence of some reasonable basis for the belief that the contents of the container might pose a danger to the arresting officers or that there is a legitimate concern for the preservation of evidence which might reasonably be thought to reside within the container … . …

The record does not contain evidence or testimony supporting a determination that the officer had objective reasonable grounds to believe that the drawstring backpack contained contents that would place his safety at risk or that he was concerned that the bag contained evidence that defendant could destroy. Thus, the circumstances did not suggest that any exigency required an immediate search … . People v Collins, 2021 NY Slip Op 06552, First Dept 11-23-21

 

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THE REMARKS MADE BY THE POLICE DURING THE INTERROGATION OF DEFENDANT SERVED TO NEGATE THE MIRANDA WARNINGS; INTERROGATION CONTINUED AFTER DEFENDANT ASSERTED HIS RIGHT TO COUNSEL; THE ERRORS WERE DEEMED HARMLESS BECAUSE DEFENDANT WOULD HAVE BEEN CONVICTED EVEN IF THE STATEMENTS HAD BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department determined questioning by the police effectively negated the Miranda warnings and questioning continued after defendant invoked his right to counsel. The errors were deemed harmless because the defendant would have been convicted even if the statements had been suppressed:

“Properly administered Miranda rights can be rendered inadequate and ineffective when they are contradicted by statements suggesting that there is a price for asserting the rights to remain silent or to counsel, such as foregoing ‘a valuable opportunity to speak with an assistant district attorney, to have [the] case[ ] investigated or to assert alibi defenses’ ” … . The police officer’s statement here improperly implied to defendant that the interrogation would be his “only opportunity to speak” … , and his advice that providing an explanation would benefit defendant effectively “implied that . . . defendant[‘s] words would be used to help [him], thus undoing the heart of the warning that anything [he] said could and would be used against [him]” … . * * *

… [A]bout 20 minutes into the interrogation, defendant expressly stated that he did not “want to talk about more of this[, i.e., the shooting]. That’s it.” … [D]efendant thereby unequivocally invoked his right to remain silent …  inasmuch as “[n]o reasonable police officer could have interpreted that statement as anything other than a desire not to talk to the police” … . Defendant’s responses to the police officers when they resumed the interrogation did not negate his prior unequivocal invocation of his right to remain silent because the police officers failed to reread the Miranda warnings to defendant before resuming the interrogation and therefore failed to scrupulously honor his right to remain silent … . People v Marrero, 2021 NY Slip Op 06510, Fourth Dept 11-19-21

 

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IN THIS CHILD VICTIMS ACT ACTION ALLEGING SEXUAL ABUSE BY THE DEFAULTING DEFENDANT WHO ALLEGEDLY WAS AN EMPLOYEE OF THE NON-DEFAULTING DEFENDANT, IT WAS AN IMPROVIDENT EXERCISE OF DISCRETION TO DELAY THE DAMAGES ASPECT OF THE SUIT AGAINST THE DEFAULTING DEFENDANT UNTIL THE TRIAL OR DISPOSITION OF THE SUIT AGAINST THE NON-DEFAULTING DEFENDANT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined delaying the damages aspect of the action against a defaulting defendant until the trial or disposition of the action against a non-defaulting defendant was improper under the facts. The Fourth Department noted that it can substitute its discretion for the lower court’s, even where there has been no abuse of discretion by the lower court. The defaulting defendant was an employee of the non-defaulting defendant, YMCA Buffalo Niagara, when he allegedly sexually abused plaintiff. The lawsuit was brought pursuant to the Child Victims Act:

… [Although] a court may, under appropriate circumstances, defer entry of judgment and a determination of damages against a defaulting defendant until resolution of a separately-commenced companion action against non-defaulting defendants, we … agree with plaintiff’s … contention that the court’s decision to do so here constitutes an improvident exercise of its discretion … . We therefore substitute our own discretion “even in the absence of abuse [of discretion]” … .

… [W]e agree with plaintiff that “further delay undermines the purpose of the Child Victims Act, which is to ‘finally allow justice for past and future survivors of child sexual abuse, help the public identify hidden child predators through civil litigation discovery, and shift the significant and lasting costs of child sexual abuse to the responsible parties’ ” … . Given the schedule of the separate action and the accompanying “uncertainty as to when plaintiff’s claims may be resolved against [YMCA Buffalo Niagara], additional delay may hinder [plaintiff’s] efforts to prove damages against defendant and secure a final judgment, particularly considering defendant’s age and the prospect that defendant’s assets may be dissipated in the interim” … . By contrast, we note that the court did not identify any prejudice to YMCA Buffalo Niagara … . “Although judicial economy, which is an important consideration under CPLR 3215 (d) . . . , may favor a single damages proceeding involving both the defaulting and non-defaulting defendants,” we conclude here that “such consideration does not outweigh the significant prejudice that may inure to plaintiff … . LG 46 DOE v Jackson, 2021 NY Slip Op 06507, Fourth Dept 11-19-21

 

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IN THIS POST-DIVORCE ACTION, THE PROCEEDS OF THE SALE OF THE PARTIES’ REAL PROPERTY SHOULD NOT HAVE BEEN DISTRIBUTED WITHOUT A FULL EVIDENTIARY HEARING (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the court should have conducted a hearing before distributing the proceeds of the sale of the parties’ farm in this post-divorce action:

… [T]he court erred in deciding the value of plaintiff’s credits without a full evidentiary hearing permitting the parties to offer proof of valuation … . Plaintiff offered no direct proof of the value of the relevant assets, and defendant was not afforded an opportunity to cross-examine the court-appointed appraiser or review the appraisals … . The court’s decision also failed to articulate the factors it considered or the reasons for its determination to partially grant certain credits to plaintiff and deny others … . … [W]e remit the matter to Supreme Court for a hearing and appropriate findings of fact and conclusions of law with respect to the parties’ entitlement to credits. Edwards v Edwards, 2021 NY Slip Op 06504, Fourth Dept 11-19-21

 

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