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QUESTION OF FACT WHETHER THE POLICE OFFICER, ANSWERING A CALL, ACTED RECKLESSLY IN THIS TRAFFIC ACCIDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether the defendant police officer (McMahon) acted recklessly in this traffic accident case. The officer, responding to a call, passed a line of cars by straddling the yellow line without siren or lights and struck plaintiff as plaintiff was attempting to make a left turn:

“[T]he reckless disregard standard of care in Vehicle and Traffic Law § 1104(e) only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b). Any other injury-causing conduct of such a driver is governed by the principles of ordinary negligence”… . Conduct exempted from the rules of the road by Vehicle and Traffic Law § 1104(b) includes disregarding regulations governing the direction of movement or turning in specified directions … .

Here, the defendants established that the reckless disregard standard of Vehicle and Traffic Law § 1104 was applicable to McMahon’s conduct because he was responding to a radio call of a motor vehicle accident with unknown injuries … . However, the defendants failed to establish their prima facie entitlement to judgment as a matter of law because their moving papers presented a triable issue of fact regarding whether McMahon was reckless in straddling the double-yellow line to pass a row of vehicles without using his warning siren or lights when he collided with the plaintiff’s vehicle … . Rodriguez-Garcia v Southampton Police Dept., 2020 NY Slip Op 03813, Second Dept 7-8-20

 

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IN THIS BATSON CHALLENGE CASE, THE MAJORITY HELD THE DEFENSE’S FAILURE TO ADDRESS THE PROSECUTOR’S STATED REASON FOR EXCLUDING A PROSPECTIVE JUROR, I.E. THAT THE PROSPECTIVE JUROR WAS NOT AFRICAN-AMERICAN, PRECLUDED APPEAL ON THAT ISSUE; THE DISSENT ARGUED THE THREE-STEP BATSON PROCEDURE WAS NOT FOLLOWED WITH RESPECT TO THAT JUROR, REQUIRING REVERSAL (SECOND DEPT).

The Second Department, over an extensive two-justice dissent, determined defendant’s Batson challenges were properly handled by the court and properly denied. The defense challenged the exclusion of several African-American potential jurors. With respect to one of the potential jurors, Putsam, the prosecutor answered the challenge by simply saying Putsam was not African-American. Although all three stages of a Batson challenge were addressed with respect to the other challenged jurors, nothing further was argued with respect to Putsam. The dissent argued the required three-step process was not followed with Putsam, requiring reversal and a new trial:

A review of the trial transcript leads to the inescapable conclusion that the Supreme Court engaged in all three analytical steps required by Batson v Kentucky and our corresponding case authorities. The defendant made no argument of any kind as to juror Pustam during step three. Accordingly, she has failed to preserve the specific argument which she raises for the first time on appeal, which is based, in part, at least, on facts that are outside the record, to wit, that Pustam’s Trinidadian heritage qualifies as “African-American.” Indeed, any appellate consideration of this new argument would require this Court to (1) assume facts not within this record; and (2) more importantly, ignore the fact that defense counsel did not dispute or challenge the People’s contention that Pustam was not “African-American.”

The Court of Appeals has been clear that “[w]hen, as here, a party raises an issue of a pattern of discrimination in excluding jurors, and the court accepts the race neutral reasons given, the moving party must make a specific objection to the exclusion of any juror still claimed to have been the object of discrimination … . The defendant’s failure to discuss juror Pustam at all during step three suggests that counsel was not challenging any comment or determination made by the Supreme Court during step two as to Pustam. Similarly, the court’s exception noted unilaterally on the record at the conclusion of step three failed to preserve any “specific” argument for the defendant on appeal, as is expressly required by the Court of Appeals. Therefore, without preservation, our analysis of this appeal cannot reach the cases of People v Pescara (162 AD3d 1772) and People v Chance (125 AD3d 993), cited by the dissent in support of a Batson reversal on the basis of skin color. People v Taylor, 2020 NY Slip Op 03807, Second Dept 7-8-20

 

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PROPER FOUNDATION FOR EXPERT OPINION EVIDENCE FINDING THAT THE TESTED SUBSTANCES CONTAINED COCAINE WAS NOT LAID AND THE TESTIMONY WAS THEREFORE INADMISSIBLE; CONVICTIONS ON TWO DRUG-POSSESSION COUNTS REVERSED, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction on two drug possession counts, determined the People did not provide a proper foundation for the testimony of two experts who tested the substances alleged to contain cocaine:

The opinion testimony by these experts was inadmissible, because the People failed to lay a foundation for the competence of the testimony. “[A]n expert who tests a substance for the presence of cocaine may not rely solely upon a test involving a comparison of the substance at issue to a known standard when the accuracy of the known standard is not established” … . Here, the evidence adduced at trial reflected that Lin and Lopez each tested the purity of a sample of the substance recovered from the defendant by using a test which relied upon a comparison to a known standard. The People failed to introduce any direct evidence as to the accuracy of the standard used for comparison. Although an expert’s testimony that a substance contains cocaine is admissible when it is “not based solely upon comparative tests using a known standard but also on a series of other tests not involving known standards” … , here, the People failed to establish that either Lin or Lopez performed any other tests that did not involve comparison to a known standard. Thus, the Supreme Court should not have permitted their testimony, and a new trial is required on the counts charging criminal possession of a controlled substance in the fifth degree … . People v Campbell, 2020 NY Slip Op 03800, Second Dept 7-8-20

 

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PLAINTIFF DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1304 AND 1306 IN THIS FORECLOSURE ACTION; PROOF REQUIREMENTS EXPLAINED IN SOME DEPTH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff loan services company (Aurora/Nationstar) did not demonstrate compliance with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 13O4 and 1306. Therefore, Aurora’s motion for summary judgment in this foreclosure action should not have been granted. The court, noting that “lack of notice’ may be raised at any time, explained defendant did not waive the “lack of notice” defense because defendant denied the plaintiff’s complaint-allegations of compliance and raised the issue in opposition to plaintiff’s motion for summary judgment. The Second Department further found defendant was not entitled to summary judgment because “lack of notice” was not demonstrated as a matter of law. The decision provides a valuable explanation of the proof requirements for compliance with RPAPL 1304 and 1306:

In support of its motions, Aurora submitted the affidavit of Jerrell Menyweather, a document execution specialist employed by Nationstar, along with a copy of a 90-day notice addressed to the defendant, and a proof of filing statement pursuant to RPAPL 1306 from the New York State Banking Department. Although Menyweather stated in the affidavit that the RPAPL notices were sent to the defendant at her last known address and the subject property, Menyweather did not have personal knowledge of the mailing, and Aurora failed to provide any documents to prove that the notices were actually mailed … . Aurora also failed to submit a copy of any United States Post Office document indicating that the notices were sent by registered or certified mail as required by the statute … . Furthermore, Menyweather did not aver that he was familiar with Aurora’s mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed … . Nationstar Mtge., LLC v Matles, 2020 NY Slip Op 03793, 7-8-20

 

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THE COURT WAS TROUBLED BY NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIAL AND HEARINGS’ (OATH’S) REQUIREMENT THAT PETITIONER PAY THE ORDERED RESTITUTION OF OVER $234,000 BEFORE PETITIONER COULD APPEAL THE DETERMINATION; THE ISSUE WAS NOT RAISED BY THE PARTIES AND THEREFORE COULD NOT BE DECIDED (FIRST DEPT).

The First Department noted it was troubled by the New York City Office of Administrative Trial and Hearings’ (OATH’S) requirement that petitioner pay the ordered restitution as a prerequisite to appealing the determination. The issue was not raised by the parties so the First Department could not decide it:

Although neither specifically preserved nor raised on appeal, we are troubled by the constitutional ramifications of an administrative tribunal insulating its decision by making judicial review contingent on satisfaction of its order, including, as here, the payment of money … . It seems patently unfair to force a litigant to pay restitution as a condition for filing an appeal where the litigant has received a waiver of prior payment of his fine due to financial hardship … . Petitioner here is excused from paying a $5,000 fine as a condition to filing an appeal based on financial hardship, but, notwithstanding its financial hardship, it is forced to pay almost a quarter of a million dollars ($234,152.57) before it can file an appeal. Under this system, if you do not have the financial means to pay, you cannot come into court and seek review regardless of the merits of the challenged administrative determination … . Nonetheless, because this constitutional issue was not fully briefed before us, we do not decide it. Matter of Sahara Constr. Corp. v New York City Off. of Admin. Trials & Hearings, 2020 NY Slip Op 03715, First Dept 7-2-20

 

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BECAUSE THE GRAND JURY MINUTES WERE NOT PART OF THE MOTION TO AMEND THE INDICTMENT OR THE RECORD ON APPEAL, IT COULD NOT BE DETERMINED WHETHER THE DEFENDANT WAS ACTUALLY INDICTED ON THE OFFENSE CHARGED IN THE AMENDED INDICTMENT; PLEA VACATED AND AMENDED INDICTMENT DISMISSED (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea and dismissing the amended indictment, held that, because the grand jury minutes did not accompany the motion to amend the indictment and were not available to the appellate court, it could not be determined whether defendant was indicted on the charged offense, a jurisdictional defect. The People argued that the grand jury voted on the offense charged in the amended indictment but the wrong subdivision of the statute was set forth in the original indictment:

“The right to indictment by a [g]rand [j]ury has . . . been recognized as not merely a personal privilege of the defendant but a public fundamental right, which is the basis of jurisdiction to try and punish an individual”… . “[S]ince an infringement of defendant’s right to be prosecuted only by indictment implicates the jurisdiction of the court,” this claim is not waived by a guilty plea and may be raised for the first time on appeal … .  Thus, “[b]efore a person may be publicly accused of a felony, and required to defend against such charges, the [s]tate must a [g]rand [j]ury that sufficient legal reasons exist to believe the person guilty” … . To that end, an indictment ensures that “the crime for which the defendant is brought to trial is in fact one for which he [or she] was indicted by the [g]rand [j]ury, rather than some alternative seized upon by the prosecution” … , providing a safeguard against prosecutorial authority by requiring the grand jury to “assess[] the sufficiency of the prosecutor’s case” … .

The record before us only establishes that a grand jury indicted defendant for violating subdivision (7) of Penal Law § 120.05, not subdivision (3) of that statute. In their motion to amend, the People stated that “the grand jury was instructed on the correct section of the statute” — presumably subdivision (3) of Penal Law § 120.05 … — and that the amendment therefore did not change the theory of their case “as reflected in the instructions and the evidence before the [g]rand [j]ury,” asserting that the charge in the original indictment (under subdivision [7]) was an “inadvertent misstatement.” It is unclear if the People were representing that the grand jury actually indicted defendant under subdivision (3). People v Mathis, 2020 NY Slip Op 03696, Third Dept 7-2-20

 

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ANY CHALLENGE BASED ON A DEFECT IN THE SUPERIOR COURT INFORMATION AND WAIVER OF APPEAL FOR FAILURE TO SET FORTH THE DATE AND TIME OF THE OFFENSE WAIVED BY THE GUILTY PLEA; THE PLEA WAS INVALID BECAUSE OF THE INCOMPLETE COLLOQUY (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, determined the plea colloquy did not demonstrate defendant fully understood and voluntarily waived his right to trial. The court noted that the failure to set forth the date and time of the offense in the superior court information (SCI) and the waiver of indictment was not a jurisdictional defect and any related error was not preserved for appeal and was forfeited by the guilty plea:

Notwithstanding the omission of the date and approximate time of the offense, the waiver of indictment and the SCI, together with the underlying accusatory instruments prepared in connection with the incident, gave defendant reasonable notice of the felony sex crime with which he was being charged. In light of this, as well as the absence of any indication that defendant raised an objection before County Court to the sufficiency of the waiver of indictment or the SCI, or requested a bill of particulars, defendant’s challenge to the waiver of indictment and the SCI was forfeited by his guilty plea … . …

Preliminarily, we note that defendant’s challenge to the voluntariness of the plea is not precluded by his appeal waiver … and was preserved by his unsuccessful postallocution motion to withdraw his plea … . During the plea proceedings, County Court advised defendant that he was giving up a number of important rights by pleading guilty, including the right “to take the case to trial,” the “right to cross-examine people who testified against you,” and “the right to testify yourself or call your own witnesses.” The court further explained that he could not be convicted at trial unless the People proved to a jury beyond a reasonable doubt that he was guilty of the crime. The court, however, failed to mention the privilege against self-incrimination or ascertain whether defendant conferred with counsel regarding the trial-related rights that he was waiving and the constitutional consequences of entering a guilty plea … . Absent an affirmative showing that defendant fully understood and voluntarily waived his trial-related constitutional rights, the plea was invalid and must be vacated … . People v Oliver, 2020 NY Slip Op 03697, Third Dept 7-2-20

 

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ARBITRATOR’S DECISION FINDING CLAIMANT WAS PROPERLY DISCHARGED FOR MISCONDUCT ENTITLED TO COLLATERAL ESTOPPEL EFFECT IN THE UNEMPLOYMENT INSURANCE PROCEEDING (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined the arbitration decision pursuant to the collective bargaining agreement should have been given collateral estoppel effect by the Administrative Law Judge (ALJ) in the unemployment insurance proceeding. The arbitrator found that the claimant engaged in misconduct warranting discharge. The arbitrator’s decision was issued prior to the ALJ’s decision. The ALJ found claimant did not engage in misconduct and was entitled to unemployment insurance benefits:

Although “the Board is not bound by arbitration decisions regarding [a] claimant’s discharge issued subsequent to the time the Board rendered its decision”… , the Board was informed of the arbitration decision prior to its decision. As such, the factual findings of the arbitrator should have been accorded collateral estoppel effect in relation to the final unemployment insurance decision, so long as the parties had a full and fair opportunity to litigate the misconduct issue at the arbitration hearing … . The fact that the arbitration decision was issued after the conclusion of the unemployment insurance hearing does not preclude its consideration for collateral estoppel purposes, as “the final factfinder in the administrative process is the Board, not the ALJ” … . As the Board indicated that the arbitrator’s decision was not part of the record before it — despite that decision being the focus of, and a copy of it annexed to, the employer’s administrative appeal — the matter must be remitted in order for the employer to submit the arbitration decision into the record and to provide an opportunity for claimant and the employer to provide additional evidence and testimony regarding the nature of the arbitration hearing … . Matter of Bruce (Town of N. Hempstead–Commissioner of Labor), 2020 NY Slip Op 03705, Third Dept 7-2-20

 

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ALTHOUGH THERE WAS NO SCHEDULE LOSS OF USE (SLU) AWARD FOR THE PRIOR (2003) INJURY, THE AMOUNT OF THE AWARD FOR THE CURRENT (2015) INJURY MUST BE REDUCED BY THE LOSS OF USE ATTRIBUTED TO THE PRIOR INJURY (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the schedule loss of use (SLU) award should have been apportioned between the effects of a prior (2003) injury for which claimant was not compensated and the current (2015) injury to the same body member. The prior injury would have been compensable but for the finding the injury was caused by an injury at work:

In August 2015, claimant sustained another injury to his right shoulder while at work, and his ensuing claim was established for injury to the right shoulder. Ultimately, a WCLJ found that claimant had a 50% SLU of the right arm that was causally related to the 2015 accident. The WCLJ [Workers’ Compensation Law Judge] rejected the carrier’s assertion that there should be apportionment between the 2015 claim and the 2003 noncompensable injury, stating that the carrier had successfully argued at the time of the 2003 claim that one of claimant’s consultants was not credible and that there was no SLU for the 2003 injury and that it would be contradictory to now reduce claimant’s award based on that consultant’s prior SLU opinion. …

It is standard practice to apportion an SLU award involving two compensable injuries to the same body member and thus hold each carrier responsible for only that portion of the overall loss of use attributable to the injury covered by them ). That same principle is applicable to an SLU case involving a prior, noncompensable injury when the prior injury was disabling “in a compensation sense” before the occurrence of the subsequent injury. Because an SLU award “is not given for an injury sustained, but[, rather,] for the residual permanent physical and functional impairments” to the subject body member … , the question is whether there is documented prior “loss of use, function or range of motion of the body member in question” … . In other words, “apportionment may be applicable in an SLU case if the medical evidence establishes that the claimant’s prior injury [to the same body member] — had it been compensable — would have resulted in an SLU finding” … . Matter of St. Aubin v Office of Children & Family Servs., 2020 NY Slip Op 03706, Third Dept 7-2-20

 

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THE REGULATION REQUIRING NEW YORK HEALTH INSURANCE POLICIES TO COVER MEDICALLY NECESSARY ABORTION SERVICES, WHICH INCLUDES AN EXEMPTION FOR ‘RELIGIOUS EMPLOYERS,’ IS CONSTITUTIONAL AND WAS PROPERLY PROMULGATED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Colangelo, affirming Supreme Court, determined the regulation requiring health insurance policies in New York to provide coverage for medically necessary abortion services, which includes an exemption for “religious employers,” was properly promulgated and was constitutional. The Court of Appeals decision upholding a similar regulation for prescription contraceptives,  Catholic Charities of Diocese of Albany v Serio (7 NY3d 510 [2006] …), was deemed the controlling precedent:

At issue in Catholic Charities of Diocese of Albany was the validity of a provision of the Women’s Health and Wellness Act (…[hereinafter WHWA]) that requires health insurance policies that provide coverage for prescription drugs to include coverage for prescription contraceptives … . The WHWA also provided an exemption from coverage for “religious employers” (Insurance Law § 3221 [l] [16] [E]), which exemption contains the identical criteria as the exemption applicable here … . … As the constitutional arguments raised by plaintiffs here are the same as those raised and rejected in Catholic Charities of Diocese of Albany, Supreme Court properly concluded that they must meet the same fate by operation of the doctrine of stare decisis. “Stare decisis is the doctrine which holds that common-law decisions should stand as precedents for guidance in cases arising in the future and that a rule of law once decided by a court will generally be followed in subsequent cases presenting the same legal problem” … .

We agree with Supreme Court that an analysis of the Boreali factors [Boreali v Axelrod, 71 NY2d 1] weighs in favor of rejecting plaintiffs’ challenge that the Superintendent exceeded regulatory authority in promulgating the regulation at issue here. Roman Catholic Diocese of Albany v Vullo, 2020 NY Slip Op 03707, Third Dept 7-2-20

 

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