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FOIL REQUEST FOR THE “COMPREHENSIVE STUDY” RE NEW YORK’S TRANSITION TO 100% RENEWABLE ENERGY WAS PROPERLY INTERPRETED TO BE A DEMAND FOR THE COMPLETED REPORT, WHICH THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) CERTIFIED HAD NOT BEEN CREATED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined petitioner’s FOIL request was properly denied because the Department of Environmental Conservation (DEC) certified that the document did not exist because it had not been completed. Petitioner had requested “an electronic copy of the ‘comprehensive study’ ordered by Gov. Andrew Cuomo ‘to determine the most rapid, cost-effective, and responsible pathway to reach 100[%] renewable energy statewide’ as detailed in [the] January 10, 2017 press release and as completed prior to revisions mentioned publicly by NYSERDA [New York State Energy and Research Development Authority] in February 2019.” The majority held the DEC properly interpreted the request as a demand for the completed report, which the DEC certified had not been created. The dissenters argued the request should not have been interpreted as a demand for the completed study, but rather as a request for any relevant documents:

Where, as here, an agency maintains that it does not possess a requested record, the agency is required to certify as much (see Public Officers Law § 89 [3]). Here, respondents submitted affidavits from Alicia Barton, the president and chief executive officer of NYSERDA, and Carl Mas, the Director of the Energy and Environmental Analysis Department of NYSERDA, as well as an affirmation from Daniella Keller, an attorney who served as DEC’s records access officer at the relevant time. In their sworn affidavits, Barton and Mas attested that the study referenced in Governor Cuomo’s January 2017 press release had yet to be completed at the time of petitioner’s FOIL request. Keller stated, in her affirmation, that DEC records custodians had conducted a search of relevant files and advised her that the requested record did not exist because the study “had not been drafted.” Such sworn attestations amply satisfy respondents’ obligations under Public Officers Law § 89 (3) … .

Where an agency properly certifies that it does not possess a requested record, a petitioner may be entitled to a hearing on the issue if it can “articulate a demonstrable factual basis to support [the] contention that the requested document[] existed and [was] within the [agency’s] control”… [S]peculation and conjecture does not warrant a hearing or a rejection of the sworn statements of Barton and Mas — individuals with personal knowledge of the study and its status — and Keller … . Matter of Empire Ctr. for Pub. Policy v New York State Energy & Research Dev. Auth., 2020 NY Slip Op 07126, Third Dept 11-25-20

 

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SOCIAL SERVICES LAW ARTICLE 11 DOES NOT CREATE A PRIVATE RIGHT OF ACTION FOR THE INAPPROPRIATE USE OF PHYSICAL RESTRAINTS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Leventhal, determined the Social Services Law did not create a private right of action for the inappropriate use of physical restraints. The complaint alleged infant plaintiff, a person with special needs, was injured by the hospital defendants:

[The] causes of action alleged assault, battery, false imprisonment, negligent hiring, supervision, and retention, violation of a section of Social Services Law article 11, violation of Civil Rights Law § 79-n, and negligence. The two causes of action alleging violation of Social Services Law article 11 were the fifth and sixth causes of action. In these causes of action, the plaintiffs alleged that the defendants committed physical abuse and deliberate inappropriate use of physical restraints as defined in Social Services Law § 493(4)(b). * * *

A legislative intent to create a private right of action for alleged violation of article 11 of the Social Services Law is not fairly implied in these statutory provisions and their legislative history. Finding such a private right of action would be inconsistent with the legislative scheme. The Protection of People with Special Needs Act, generally, and article 11 of the Social Services Law, specifically, “already contain[ ] substantial enforcement mechanisms”… . These mechanisms in the Act include the creation of the Justice Center, the “central agency responsible for managing and overseeing the incident reporting system, and for imposing or delegating corrective action” … . These mechanisms in article 11 include the maintenance of a statewide vulnerable persons’ central register to accept, investigate, and respond to allegations of abuse or neglect; the delineation of possible findings and consequences in connection with an investigation of abuse or neglect allegations, along with procedures for amending and appealing substantiated abuse or neglect reports; and the maintenance of a register of subjects found to have a substantiated category one abuse or neglect case. The substantial enforcement mechanisms “indicat[e] that the legislature considered how best to effectuate its intent and provided the avenues for relief it deemed warranted” … . Joseph v Nyack Hosp., 2020 NY Slip Op 07042, Second Dept 11-25-20

 

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THE FAILURE TO RAISE THE LACK OF STANDING DEFENSE IN A FORECLOSURE ACTION CAN BE REMEDIED BY A MOTION TO AMEND THE ANSWER AND BY RAISING THE DEFENSE IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, in a comprehensive opinion by Justice Miller, explained the relationship between the waiver provisions in  CPLR 3211 (e) and Real Property Actions and Proceedings Law (RPAPL) 1302-a in foreclosure proceedings. The opinion includes a detailed discussion of when defenses are waived by the failure to include them in the answer and when and how such omissions can be remedied by a motion to amend or in a summary judgment motion. The opinion is much too detailed to be summarized here and should be consulted as authoritative on these issues. The narrow issue addressed by the opinion is the effect of failing to raise the defense of a lack of standing in the answer to a foreclosure complaint:

… [W]e now reaffirm that a waiver of the defense of standing pursuant to CPLR 3211(e) should be given the same force and effect as a waiver of the affirmative defenses specifically enumerated in CPLR 3211(a)(3) and (5) … . Accordingly, a waiver of the affirmative defense of standing pursuant to CPLR 3211(e) may be retracted through the amendment of a pleading pursuant to CPLR 3025 … . Case law from this Court should not be read to hold otherwise … . * * *

Where applicable, RPAPL 1302-a places the defense of standing on a footing comparable with the other defenses that are exempt from the waiver provisions of CPLR 3211(e), to wit, those defenses listed in subdivisions CPLR 3211(a)(2), (7), and (10), which may be raised by motion “at any time” … , or by amendment to a pleading, “if one is permitted” (CPLR 3211[e]; see CPL 3025[b]). Even where the defense of standing is omitted from a defendant’s answer in violation of CPLR 3018(b), the defense may be raised for the first time in opposition to a plaintiff’s motion for summary judgment … . GMAC Mtge., LLC v Coombs, 2020 NY Slip Op 07039, Second Dept 11-25-20

 

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UNDER THE AGUILAR-SPINELLI ANALYSIS, THERE ARE QUESTIONS OF FACT ABOUT WHETHER THERE WAS PROBABLE CAUSE FOR PLAINTIFF’S ARREST; THE CITY’S MOTION FOR SUMMARY JUDGMENT ON THE 42 USC 1983, FALSE ARREST, ASSAULT AND BATTERY CAUSES OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the city’s motion for summary judgment on the 42 USC 1983, false arrest, assault and battery causes of action should not have been granted. Under the Aguilar-Spinelli analysis, there were questions of fact about the existence of probable cause for plaintiff’s arrest:

“The existence of probable cause constitutes a complete defense to a cause of action alleging false arrest, including a cause of action asserted pursuant to 42 USC § 1983 to recover damages for the deprivation of Fourth Amendment rights under color of state law that is the federal-law equivalent of a state common-law false arrest cause of action” … . “However, [w]hen an arrest is made without a warrant, as here, a presumption arises that it was unlawful, and the burden of proving justification is cast upon the defendant” … . Where the arrest was made without a prior judicial determination of probable cause, and where the arresting officer’s alleged probable cause is based on hearsay, probable cause is properly evaluated under the Aguilar-Spinelli test … . Under the Aguilar-Spinelli rule, where, as here, probable cause is predicated upon the hearsay statement of an informant, the proponent of the hearsay statement “must demonstrate that the informant is reliable and that the informant had a sufficient basis for his or her knowledge” … . Here the defendants failed to eliminate triable issues of fact as to the existence of probable cause for the arrest. The existence of triable issues of fact with respect to whether the police evaluations at issue, such as the evaluation of probable cause to arrest and requisite suspicion to perform a strip search, were objectively reasonable precludes an award of summary judgment … on the ground of qualified immunity … .

“To sustain a cause of action to recover damages for assault, there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact” … . “To recover damages for battery, a plaintiff must prove that there was bodily contact, made with intent, and offensive in nature” … . A claim predicated on assault and battery may be based upon contact during an unlawful arrest … . Here, the defendants’ failure to establish, prima facie, that the plaintiff’s arrest was lawful precluded an award of summary judgment dismissing the sixth cause of action, which alleged assault and battery … . Cayruth v City of Mount Vernon, 2020 NY Slip Op 07027, Second Dept 11-25-20

 

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PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED; THE DEFENDANT’S ALLEGATION PLAINTIFFS’ CAR STOPPED SUDDENLY DID NOT RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s allegation plaintiffs’ vehicle came to a sudden stop did not raise a question of fact about defendant’s negligence in this rear-end collision case:

… [T]he defendants failed to raise a triable issue of fact as to whether there was a nonnegligent explanation for the happening of the accident, or whether the emergency doctrine applied to this case … . “[T]he emergency doctrine does not apply to typical accidents involving rear-end collisions because trailing drivers are required to leave a reasonable distance between their vehicles and vehicles ahead” … . Although the defendants submitted a police accident report and the affidavit of Miller, both of which contained statements that the plaintiffs’ vehicle made a sudden stop behind a vehicle that came to an abrupt stop in front of them, Miller testified at his deposition that he could not recall the speed at which he was traveling, or when he first observed the plaintiffs’ vehicle, prior to the accident. “Without such evidence, the assertion that the [plaintiffs’] vehicle came to a sudden stop was insufficient to rebut the inference that [Miller] was negligent” … , and failed to demonstrate that the emergency doctrine was applicable to this case … . Capuozzo v Miller, 2020 NY Slip Op 07026, Second Dept 11-25-20

 

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NONPARTY BANK SHOULD NOT HAVE BEEN AWARDED POSSESSION OF A CAR SUBJECT TO CIVIL FORFEITURE PROCEEDINGS. (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the nonparty banks should not have been awarded possession of cars subject to civil forfeiture proceedings brought by plaintiff:

The plaintiff commenced this civil forfeiture action pursuant to chapter 420, article II of the Code of Suffolk County, seeking forfeiture of a vehicle owned by the defendant Mary A. Nolie, and operated by an individual who was under the influence of an illegal substance. Thereafter, nonparty Santander Consumer USA, Inc. (hereinafter Santander), which held a lien on the vehicle, moved for summary judgment declaring that it was entitled to take possession of the vehicle, free and clear of any claims, and the plaintiff cross-moved for summary judgment awarding civil forfeiture of the vehicle. … In a judgment … , the court directed that the vehicle be released to Santander, upon demand, free and clear of any claims. …

Contrary to Santander’s contention, it was not named in this action as a noncriminal defendant against whom the County sought to “recover” seized property … . Thus, the plaintiff was not required to establish that Santander “engaged in affirmative acts which aided, abetted or facilitated the conduct of [a] criminal defendant” in order to obtain forfeiture of the subject property … . Further, an innocent lienholder is not entitled to immediate possession of a vehicle which is the subject of a civil forfeiture action, but rather is merely entitled to “satisfy its lien from the proceeds of the property after the forfeiture ha[s] been adjudicated against the guilty party” and to seek any deficiency from the debtor … . Thus, Santander failed to establish its prima facie entitlement to judgment as a matter of law, and the Supreme Court should have denied its motion for summary judgment declaring that it is entitled to take possession of the vehicle, free and clear of any claims. Brown v A 2014 Honda, Vin No. 5J6RM4H74EL039078, 2020 NY Slip Op 07024, Second Dept 11-25-20

Similar issues and result in Brown v A 2007 Chevrolet, Vin No. 1GNET13M372223303, 2020 NY Slip Op 07023, Second Dept 11-25-20

 

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ALTHOUGH AN ORDER DISMISSING THE COMPLAINT HAD BEEN ISSUED, NO JUDGMENT DISMISSING THE COMPLAINT WAS ENTERED; THEREFORE THE ACTION WAS STILL VIABLE AND PLAINTIFFS COULD MOVE TO EXTEND THE TIME TO SERVE; THE MOTION SHOULD HAVE BEEN GRANTED IN THE INTEREST OF JUSTICE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the motion to extend time to serve the defendants in the interest of justice should have been granted. Although defendants’ motion to dismiss the complaint for lack of personal jurisdiction had been granted, no judgment dismissing the complaint had been entered. Therefore the action was still viable when plaintiff moved to extend time:

The defendants … moved, … pursuant to CPLR 5015(a) to vacate the order and judgment entered upon their default, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction. After a hearing to determine the validity of service of process, the Supreme Court, by order entered March 5, 2018, granted those branches of the defendants’ motion. However, no judgment dismissing the complaint on the ground of lack of personal jurisdiction was entered. The plaintiff thereafter moved pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant … . * * *

… [A]n extension of time was warranted in the interest of justice. The plaintiff demonstrated that a potentially meritorious cause of action existed, that while it timely commenced this action, the statute of limitations had expired by the time it moved to extend the time for service, and that there was no demonstrable prejudice to the defendants as a consequence of the delay in service … . Moreover, as the interest of justice standard permits consideration of “any other relevant factor” … , this Court may consider the fact that the process server failed to comply with a subpoena to appear and give testimony at the hearing to determine the validity of service of process, thereby hampering the plaintiff’s ability to meet its burden of proof at that hearing … . Bayview Loan Servicing, LLC v Tanvir H. Chaudhury, 2020 NY Slip Op 07021, Second Dept 11-25-20

 

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THE SENTENCING JUDGE DID NOT INFORM DEFENDANT OF THE IMMIGRATION CONSEQUENCES FOR NONCITIZENS; MATTER REMITTED TO GIVE THE DEFENDANT THE OPPORTUNITY TO MOVE TO VACATE HER GUILTY PLEA, DESPITE THE FACT DEFENSE COUNSEL TOLD THE JUDGE THAT DEFENDANT SAID SHE WAS A CITIZEN (SECOND DEPT).

The Second Department remitted the matter to allow defendant the opportunity to move to vacate her plea of guilty based upon the sentencing court’s failure to inform the defendant of the immigration consequences for noncitizens. Defense counsel had informed the court that defendant had informed him she was a citizen:

… [D]efense counsel’s statement during the plea proceeding that the defendant had informed him that she was a citizen of the United States did not absolve the court of its obligations pursuant to Peque [22 NY3d 168]. As we explained in People v Williams, “a trial court should not ask a defendant whether he or she is a United States citizen and decide whether to advise the defendant of the plea’s deportation consequence based on the defendant’s answer. Instead, a trial court should advise all defendants pleading guilty to felonies that, if they are not United States citizens, their felony guilty plea may expose them to deportation” … .

… [I]n the present case … the presentence investigation report explained that an “immigration record check” had revealed, among other things, that the defendant was not in the United States “legally.”

The defendant’s due process claim is thus properly presented on the defendant’s direct appeal, and in the absence of the warning required under Peque, we remit the matter to the Supreme Court, Kings County, to afford the defendant an opportunity to move to vacate her plea, and for a report by the Supreme Court thereafter … . People v Ulanov, 2020 NY Slip Op 07108, Second Dept 11-25-20

 

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CRIMINAL POSSESSION OF A WEAPON THIRD DEGREE IS NOT AN ARMED FELONY; MATTER REMITTED FOR A NEW YOUTHFUL OFFENDER STATUS DETERMINATION (SECOND DEPT).

The Second Department determined defendant was eligible for youthful offender status because criminal possession of a weapon third degree is not an armed felony:

The Supreme Court denied the defendant’s application for youthful offender status based upon its mistaken belief that he had been convicted of an armed felony, which required the court to find either mitigating circumstances that bear directly upon the manner in which the crime was committed or that the defendant was only a minor participant in the crime (see CPL 720.10[3]). The People correctly concede that the court erred in finding that the defendant had been convicted of an armed felony, since criminal possession of a weapon in the third degree pursuant to Penal Law 265.02(7) does not require proof that the firearm was loaded (see CPL 1.20[41] …). Thus, the defendant was eligible for youthful offender treatment without any finding of mitigation (see CPL 720.10[2]). Accordingly, we remit the matter … for a new determination of the defendant’s application for youthful offender status and resentencing thereafter. People v Javon L., 2020 NY Slip Op 07094, Second Dept 11-25-20

 

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EVIDENCE OF A 1990 ROBBERY AND SEXUAL ASSAULT TO PROVE IDENTITY SHOULD NOT HAVE BEEN ADMITTED; THE SIMILARITIES WERE NOT STRONG ENOUGH (SECOND DEPT).

The Second Department, reversing defendant’s attempted rape conviction, determined the evidence of a 1990 robbery and sexual assault should not have been admitted as evidence of the identity of the perpetrator. But the burglary, robbery and sexual abuse convictions, apparently stemming from the same incident, were not disturbed:

… [T]he similarities between the alleged 1990 robbery and sexual assault and the attack on the complainant were not sufficiently unique or unusual and did not establish a distinctive modus operandi relevant to establishing the defendant’s identity as the perpetrator in this case. While both incidents involved robberies and sexual assaults of unaccompanied Caucasian women, during daytime hours, in the lobbies of residential buildings, these similarities were not so unique as to give rise to an inference that the perpetrator of each crime was the same individual … . Accordingly, the Supreme Court erred in permitting the People to present evidence regarding the 1990 robbery and assault in order to establish the defendant’s identity … .

The error was harmless as to all of the charges except the attempted rape in the first degree since the proof of the defendant’s guilt, without reference to the erroneously admitted Molineux evidence, was overwhelming as to those other charges, and there was no reasonable possibility that the jury would have acquitted the defendant on those charges had it not been for the error … . Furthermore, the erroneous admission of the Molineux evidence did not deprive the defendant of a fair trial … . We reach a different conclusion with respect to the defendant’s conviction of attempted rape in the first degree. Because the evidence of the defendant’s guilt of that charge was not overwhelming, the error cannot be deemed harmless, and the defendant’s conviction of that charge must be vacated and a new trial ordered as to that charge … . People v Duncan, 2020 NY Slip Op 07090, Second Dept 11-25-20

 

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