Page 446 – New York Appellate Digest

PLAINTIFF’S TITLE IX AND 42 USC 1983 CAUSES OF ACTION, BASED ON ALLEGATIONS OF SEXUAL ABUSE BY A TEACHER IN 1972 AND 1973, ARE TIME-BARRED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff’s Title IX and 42 USC 183 causes action, based upon allegations plaintiff was sexually abused by a teacher in 1972 – 1973, were time barred:

“The federal civil rights statutes do not provide for a specific statute of limitations, establish rules regarding the tolling of the limitations period, or prescribe the effect of tolling” … . Thus, “courts entertaining claims brought under 42 U.S.C. § 1983 [and Title IX] should borrow the state statute of limitations for personal injury actions” … . Where a state “has one or more statutes of limitations for certain enumerated intentional torts, and a residual statute for all other personal injury actions[,] . . . the residual or general personal injury statute of limitations applies”… . Here, defendant correctly contends, and plaintiff does not dispute, that New York’s three-year statute of limitations for non-specified personal injury claims applies to the federal causes of action asserted here (see CPLR 214 [5] …).

… Plaintiff contends that CPLR 214-g, which revives certain civil claims and causes of action for damages suffered as a result of childhood sexual abuse that would otherwise be barred by a statute of limitations, must be borrowed along with CPLR 214 (5) in determining whether her federal causes of action are timely. …

We … conclude that CPLR 214-g is not a revival statute related to the residual personal injury statute of limitations applicable to plaintiff’s section 1983 cause of action … . * * *

… [W]e conclude that plaintiff’s Title IX cause of action should also have been dismissed as time-barred. BL DOE 3 v Female Academy of the Sacred Heart, 2021 NY Slip Op 06480, Fourth Dept 11-19-21

November 19, 2021

/ Attorneys, Contract Law, Employment Law

THE PROFESSIONAL EMPLOYEE AGREEMENT, WHICH PROVIDED FOR THE SHARING OF CONTINGENCY FEES FOR CASES RETAINED BY AN ATTORNEY WHO LEAVES THE FIRM, DID NOT VIOLATE ETHICS RULES AND SHOULD HAVE BEEN ENFORCED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the Professional Employee Agreement (Agreement), which provided for sharing contingency fees for cases retained by an attorney leaving the firm, did not violate ethics rules and should have been enforced:

… [T]he Agreement did not violate rule 1.5 (g) of the Rules of Professional Conduct (22 NYCRR 1200.0) inasmuch as that rule “does not prohibit payment to a lawyer formerly associated in a law firm pursuant to a separation or retirement agreement” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.5 [h] … ) . Here, the Agreement at issue is not a fee-splitting agreement under Rule 1.5 (g) but, rather, an employment or separation agreement under Rule 1.5 (h). Such employment or separation agreements “should be construed, wherever possible, in favor of [their] legality” … and where, as here, they are clear and unambiguous on their face, they must be ” ‘enforced according to the plain meaning of [their] terms’ ” … .

… [T]he Agreement did not violate rule 5.6 (a) of the Rules of Professional Conduct (22 NYCRR 1200.0 … ). Although the Agreement did have some financial disincentives for respondents to continue working on the cases that were transferred from petitioner, “agreements involving financial disincentives are not per se illegal” … [W]e conclude that the terms of the Agreement relating to the division of contingency fee awards did not have the effect of “improperly deter[ring] competition” … . Matter of Mattar v Hall, 2021 NY Slip Op 06477, Fourth Dept 11-19-21

November 19, 2021

/ Evidence, Medical Malpractice, Negligence

EVEN IF PLAINTIFF’S EXPERT’S AFFIDAVIT ARGUABLY RAISED A QUESTION OF FACT ABOUT A POTENTIALLY ACTIONABLE DELAY IN TREATMENT, THE AFFIDAVIT PRESENTED ONLY CONCLUSORY AND SPECULATIVE ASSERTIONS THAT EARLIER DETECTION AND TREATMENT WOULD HAVE HAD A DIFFERENT OUTCOME (PROXIMATE CAUSE) (FOURTH DEPT).

The Fourth Department, over a strong dissent, determined the expert affidavit submitted by plaintiff was conclusory on the issue of proximate cause and therefore could not overcome defendants’ motion for summary judgment. Karen S. Simko (plaintiff) suffered from Guillain-Barré Syndrome (GBS) and alleged defendants failed to timely diagnose and treat the condition:

… [P]laintiffs’ theory of causation is predicated on the allegation that defendants’ failure or delay in diagnosing plaintiff’s GBS “diminished [her] chance of a better outcome” … . Nothing in our decision herein calls into question the viability of such a theory. The Court of Appeals, however, has instructed that when an expert “states his [or her] conclusion unencumbered by any trace of facts or data, [the] testimony should be given no probative force whatsoever” … , and, in this case, … the opinion of plaintiffs’ expert that treatment should have been started sooner was contrary to what the expert agreed was appropriate. We therefore conclude that plaintiffs’ expert offered only conclusory and speculative assertions that earlier detection and treatment would have produced a different outcome … .

From the dissent:

… [T]his appeal implicates the “loss of chance” theory of proximate causation that applies in delayed-diagnosis medical malpractice actions where the allegations are predicated on an “omission” theory of negligence … . In such cases, proximate cause is not analyzed under the ordinary “substantial factor” approach … , but rather according to whether the alleged delay in diagnosis diminished the plaintiff’s “chance of a better outcome or increased the injury” … . Although I have expressed concern “that a loss of chance concept reduces a plaintiff’s burden of proof on the element of proximate cause” … this Court has nonetheless adopted that causation standard in this type of medical malpractice action. Simko v Rochester Gen. Hosp., 2021 NY Slip Op 06470, Fourth Dept 11-19-21

November 19, 2021

/ Appeals, Criminal Law, Evidence

A CHALLENGE TO THE VOLUNTARINESS OF A GUILTY PLEA SURVIVES A VALID WAIVER OF APPEAL; COUNTY COURT SHOULD HAVE HELD A HEARING ON DEFENDANT’S MOTION TO WITHDRAW THE GUILTY PLEA, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter for a hearing, determined (1) a challenge to the voluntariness of a guilty survives a valid waiver of appeal, and (2) a hearing should have been held on defendant’s motion to withdraw the plea:

Because defendant’s challenge to the voluntariness of her plea would survive even a valid waiver of the right to appeal, we need not address the validity of that waiver … . We agree with defendant that County Court erred in denying her motion to withdraw her plea without a hearing because the record—specifically, defense counsel’s affidavit swearing that defendant’s plea was coerced—”raises a legitimate question as to the voluntariness of the plea” … . We therefore hold the case, reserve decision, and remit the matter to County Court to appoint new defense counsel and to rule on defendant’s motion to withdraw her plea following an evidentiary hearing. People v Gumpton, 2021 NY Slip Op 06519, Fourth Dept 11-19-21

November 19, 2021

/ Criminal Law, Evidence

ITEMS SEIZED PURSUANT TO THE OVERBROAD SECTION OF THE SEARCH WARRANT, IF ANY, SHOULD HAVE BEEN SUPPRESSED, MATTER REMITTED FOR A RULING; THE SEARCH WARRANT APPLICATION PROVIDED PROBABLE CAUSE FOR THE SEARCH, NOTWITHSTANDING THE INCLUSION OF INFORMATION PROVIDED BY AN ANONYMOUS INFORMANT WHICH DID NOT SATISFY THE AGUILAR-SPINELLI TEST (FOURTH DEPT).

The Fourth Department determined a portion of the search warrant was overbroad and remitted the case for a ruling on what evidence, if any, should be suppressed because it was seized based on the overbroad language. The Fourth Department also determined information provided by an anonymous informant, which was included in the search warrant application, did not satisfy the “Aguilar-Spinelli” test, but that the remaining information in the application provided probable cause. The search warrant was seeking stolen property alleged to have been located in defendant’s residence:

… [I]nsofar as the search warrant application was based on information provided by an anonymous informant, that information was insufficient to establish probable cause. The information in the application concerning the informant failed to “satisf[y] the two-part Aguilar-Spinelli test requiring a showing that the informant is reliable and has a basis of knowledge for the information imparted” … . Nevertheless, we conclude that the remaining information in the warrant application provided probable cause for the warrant … . …

… [P]art of the warrant is overbroad. “The Fourth Amendment to the Constitution provides that no warrants shall issue except those ‘particularly describing the place to be searched, and the . . . things to be seized’ (US Const 4th Amend). To meet the particularity requirement, the warrant’s directive must be ‘specific enough to leave no discretion to the executing officer’ ” … . Here, the warrant permitted the Troopers to search for, inter alia, “personal papers, . . . alcohol, . . . safes, . . . any communication and computers that are related to criminal activity, any . . . telephone records, cell phones that [may] contain evidence of a crime or illegal activity and any associated documentation related to any criminal activity.” Those parts of the warrant were overbroad and any evidence seized pursuant to them should have been suppressed … . People v Herron, 2021 NY Slip Op 06512, Fourth Dept 11-19-21

November 19, 2021

/ Appeals, Criminal Law, Evidence

THE SECOND DEPARTMENT HAD REVERSED DEFENDANT’S MURDER CONVICTION, STATING IT WAS REVERSING ON WEIGHT OF THE EVIDENCE GROUNDS FOR THE SAME REASONS IT WAS REVERSING ON LEGAL SUFFICIENCY GROUNDS; THAT CONSTITUTED AN ERROR OF LAW REVIEWABLE BY THE COURT OF APPEALS; THE COURT OF APPEALS DETERMINED THERE WAS LEGALLY SUFFICIENT EVIDENCE TO SUPPORT CONVICTION; THE MATTER WAS REMITTED FOR PROPER ASSESSMENT OF THE WEIGHT OF THE EVIDENCE (CT APP).

The Court of Appeals, reversing People v Romualdo, 2020 NY Slip Op 06559 [188 AD3d 928], Second Dept 11-12-20, remitted the matter for a proper assessment of the weight of the evidence. The Court of Appeals has the authority to review a weight of the evidence determination when the appellate court failed to consider the issue or did so using an incorrect legal principle. “The Appellate Division’s statement that it was reversing on weight of the evidence grounds for the ‘same reasons’ that it was reversing on legal sufficiency grounds constituted an error of law …”:

The Appellate Division reversed defendant’s [murder] conviction, describing its holding as “on the law and on the facts,” and dismissed the indictment on both legal sufficiency and weight of the evidence grounds … . Both of those determinations were based upon the Appellate Division’s conclusion that “the People presented no evidence placing the defendant at or near the scene of the crime, or linking him in any way to the victim, during the critical time frame in which the murder was believed to have occurred”… . Both holdings were erroneous as a matter of law. * * *

… [A] rational jury could have inferred from the medical evidence presented at trial that the victim was sexually assaulted immediately prior to her death. Inasmuch as defendant’s semen was found on the victim’s genitalia, the semen had not transferred to the victim’s clothing, which was still in a state of disarray when her body was found, defendant lived in close proximity to the crime scene, and defendant falsely denied knowing or having sex with the victim, a rational jury could conclude that defendant was present at the time of the victim’s death and killed the victim during the course of, or immediately after, sexually assaulting her … . Therefore, the evidence was legally sufficient to support defendant’s conviction. … People v Romualdo, 2021 NY Slip Op 06430, Ct App 11-18-21

November 18, 2021

/ Attorneys, Criminal Law

DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO CHALLENGE THE VERDICT AS REPUGNANT (CT APP).

The Court of Appeals reversed People v Jennings, 2021 NY Slip Op 00944 [191 AD3d 1429], Fourth Dept 2-11-21. The facts were not described:

On review of submissions pursuant to section 500.11 of the Rules, order reversed, and case remitted to the Appellate Division, Fourth Department, for consideration of the facts and issues raised but not determined on the appeal to that Court. Counsel’s failure to challenge the verdict as repugnant did not render the representation ineffective because the issue was not clear-cut and dispositive given the jury charge … . People v Jennings, 2021 NY Slip Op 06428, Ct App 11-18-21

November 18, 2021

/ Criminal Law, Judges

ALTHOUGH DEFENDANT WAS CONVICTED OF AN ARMED FELONY, THE JUDGE SHOULD HAVE CONSIDERED WHETHER DEFENDANT IS ELIGIBLE FOR YOUTHFUL OFFENDER TREATMENT (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the judge should have determined whether defendant, who had been convicted of an armed felony, was eligible for youthful offender treatment:

“[W]hen a defendant has been convicted of an armed felony . . . and the only barrier to his or her youthful offender eligibility is that conviction, the court is required to determine on the record whether the defendant is an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10 (3)” … . Here, the People concede that the sentencing court failed to make any appropriate on-the-record determination. We accept the People’s concession and, accordingly, the case should be remitted for consideration of youthful offender treatment. People v Hargrove, 2021 NY Slip Op 06427, Ct App 11-18-21

November 18, 2021

/ Criminal Law, Evidence

THE CONSENT OF BOTH PARTIES IS NOT REQUIRED FOR THE DISPLAY OF STATUTORY TEXT ON A VISUALIZER WHEN A JUDGE RESPONDS TO A JURY’S REQUEST FOR SUPPLEMENTAL INSTRUCTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the consent of the parties is not required for the display of the relevant statutory text on a visualizer during the judge’s response to a jury’s request for supplemental instruction. Consent of the parties is required for allowing the jury to be provided with copies of the statutory text, but not for the display of the text during the supplemental instruction:

When a deliberating jury requests supplemental instruction, Criminal Procedure Law § 310.30 requires the court to provide a meaningful response. When the jury’s request concerns a relevant criminal statute, the law also permits the court to provide the jury with copies of the statutory text, but only with the consent of both parties. This case asks us to decide whether consent of the parties is required before the court, during a readback of the requested law and relevant definitions, may simultaneously display the corresponding text using a visualizer … . We conclude that consent is not required … . …

During deliberations, the jury sent a note asking for “definitions of the law” and later clarified that they were requesting the elements and relevant definitions of the charged crimes. The jury also asked that this information be displayed on the visualizer.

The judge informed counsel that he would comply with this request and project the relevant statutory text so the jury could see it while the judge read the text aloud. Although defense counsel did not object to the material selected for the readback, he did object to the process of displaying the text for the jury, arguing that “placing [the text] on the visualizer is really [no] different from handing them a written copy.” He asserted that once jurors are handed “instructions in written form, whether it is visually or physically, that they then start having the ability to interpret based on how they see the words, [and] what punctuation may or may not be there . . . .” The judge overruled the objection and proceeded as he had described to the parties. A short time later, the jury convicted defendant on two counts and acquitted him on one count of criminal possession of a weapon. People v Williams, 2021 NY Slip Op 06426, Ct App 11-18-21

November 18, 2021

/ Civil Procedure

PUBLIC HEALTH LAW SECTION 18 (2) (e) DOES NOT CREATE A PRIVATE RIGHT OF ACTION FOR THE VIOLATION OF THE REQUIREMENT THAT NO MORE THAN $ .75 PER PAGE CAN BE CHARGED FOR MEDICAL RECORDS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a concurrence, determined there is no private right of action for a violation of Public Health Law section 18 (2) (e), which limits the charge for copies of medical records to $ .75 per page. Defendant charged plaintiff $1.50 per page:

Applying the Sheehy factors here, we conclude that no private cause of action exists for violations of Public Health Law § 18 (2) (e). The first factor is satisfied. Ortiz [plaintiff] is clearly part of a class that section 18 was designed to protect. The original law and its subsequent amendment were intended to increase patient access to medical records, and prevent medical providers from overcharging patients for copies of their medical records … . …

Turning to the second factor, it is unclear whether a private right of action would promote the legislative purpose. * * * … [G]iven the substantial fines the Commissioner and the Attorney General can impose, the additional deterrent effect of a private right of action is difficult to ascertain.

Even assuming the second factor is satisfied, though, the final factor—consistency with the legislative scheme—is clearly not. … [E]nforcement mechanisms already exist for section 18. First, the Commissioner and Attorney General’s ability to impose substantial fines against providers that overcharge for copies of records acts as a deterrent … . Second, the Attorney General’s duty to seek injunctive relief upon the request of the Commissioner provides a legal mechanism for ending any widespread practices violating section 18. Finally, an individual patient’s ability to commence an article 78 proceeding to enforce the law’s provisions provides recourse for individual patients who are unable to access their records due to illegally high costs. Ortiz v Ciox Health LLC, 2021 NY Slip Op 06425, Ct App 11-18-21

November 18, 2021

Search Results

PLAINTIFF’S TITLE IX AND 42 USC 1983 CAUSES OF ACTION, BASED ON ALLEGATIONS OF SEXUAL ABUSE BY A TEACHER IN 1972 AND 1973, ARE TIME-BARRED (FOURTH DEPT).

THE PROFESSIONAL EMPLOYEE AGREEMENT, WHICH PROVIDED FOR THE SHARING OF CONTINGENCY FEES FOR CASES RETAINED BY AN ATTORNEY WHO LEAVES THE FIRM, DID NOT VIOLATE ETHICS RULES AND SHOULD HAVE BEEN ENFORCED (FOURTH DEPT).

EVEN IF PLAINTIFF’S EXPERT’S AFFIDAVIT ARGUABLY RAISED A QUESTION OF FACT ABOUT A POTENTIALLY ACTIONABLE DELAY IN TREATMENT, THE AFFIDAVIT PRESENTED ONLY CONCLUSORY AND SPECULATIVE ASSERTIONS THAT EARLIER DETECTION AND TREATMENT WOULD HAVE HAD A DIFFERENT OUTCOME (PROXIMATE CAUSE) (FOURTH DEPT).

A CHALLENGE TO THE VOLUNTARINESS OF A GUILTY PLEA SURVIVES A VALID WAIVER OF APPEAL; COUNTY COURT SHOULD HAVE HELD A HEARING ON DEFENDANT’S MOTION TO WITHDRAW THE GUILTY PLEA, MATTER REMITTED (FOURTH DEPT).

DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO CHALLENGE THE VERDICT AS REPUGNANT (CT APP).

ALTHOUGH DEFENDANT WAS CONVICTED OF AN ARMED FELONY, THE JUDGE SHOULD HAVE CONSIDERED WHETHER DEFENDANT IS ELIGIBLE FOR YOUTHFUL OFFENDER TREATMENT (CT APP).

THE CONSENT OF BOTH PARTIES IS NOT REQUIRED FOR THE DISPLAY OF STATUTORY TEXT ON A VISUALIZER WHEN A JUDGE RESPONDS TO A JURY’S REQUEST FOR SUPPLEMENTAL INSTRUCTION (CT APP).

PUBLIC HEALTH LAW SECTION 18 (2) (e) DOES NOT CREATE A PRIVATE RIGHT OF ACTION FOR THE VIOLATION OF THE REQUIREMENT THAT NO MORE THAN $ .75 PER PAGE CAN BE CHARGED FOR MEDICAL RECORDS (CT APP).

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