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CROSS-EXAMINATION OF A POLICE OFFICER ABOUT A CIVIL LAWSUIT SHOULD HAVE BEEN ALLOWED; CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the hearing and trial courts should have allowed cross-examination of a police officer about a lawsuit naming the officer:

Both the hearing and trial courts erred in denying defendant’s request to cross-examine a police officer regarding allegations of misconduct in a civil lawsuit in which it was claimed, among other things, that this particular officer arrested the plaintiff without suspicion of criminality and lodged false charges against him … . The civil complaint contained specific allegations of falsification by this officer that bore on his credibility at both the hearing and trial. At each proceeding, this officer was the only witness for the People. People v Burgess, 2019 NY Slip Op 09364, First Dept 12-26-19

 

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A PORTION OF THE NYC CHARTER WHICH ALLOWS UNLIMITED SEARCHES OF PAWNBROKERS, THEIR PERSONNEL, PREMISES, MERCHANDISE AND PAPERS IS UNCONSTITUTIONAL; THE UNDERLYING REGULATORY SCHEMES ADDRESSING REPORTING REQUIREMENTS AND INSPECTIONS ARE NOT UNCONSTITUTIONAL (FIRST DEPT).

The First Department determined that the portion of the NY City Charter which gave the police commissioner the power to examine pawnbrokers, their personnel, premises, merchandise and papers was facially unconstitutional because there was no limit on the scope of the searches and allowed for immediate arrest. However the reporting requirements imposed on pawnbrokers are constitutional:

… [W]e hold that NY City Charter § 436 is facially unconstitutional to the extent that it provides that the commissioner “shall have power to examine such persons, their clerks and employees and their books, business premises, and any articles of merchandise in their possession” … . That portion of NY City Charter § 436 is facially unconstitutional because it is unlimited in scope, and provides “no meaningful limitation on the discretion of the inspecting officers” … . NY City Charter § 436 contains no limits on the time, place, and scope of searches of persons or property. It contains no record keeping requirements and it authorizes an immediate arrest for a failure to comply. * * *

… [W]ith respect to the reporting requirements contained in the statutory and regulatory scheme, we … conclude that there is little or no expectation of privacy in the reported information, whether in traditional paper or electronic form, and that the requirements at issue, which are imposed on a closely regulated industry, sufficiently describe and limit the information to be provided, and are reasonably related to the regulatory authority of the agency to which the information is provided … .

With respect to the inspection programs … [:] The regulatory scheme here was not created solely to uncover evidence of criminality. Rather it serves to enforce the reporting requirements that provide consumer protection. Collateral Loanbrokers Assn. of N.Y., Inc. v City of New York, 2019 NY Slip Op 09354, First Dept 12-26-19

 

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AN INQUIRY INTO DEFENDANT’S MENTAL HEALTH WAS REQUIRED BEFORE ALLOWING DEFENDANT TO REPRESENT HIMSELF; THE RESULTS OF CPL ARTICLE 730 EXAMS, OF WHICH THE PRESIDING JUDGE WAS NOT MADE AWARE AT THE TIME OF THE REQUEST TO PROCEED PRO SE, INDICATING DEFENDANT MAY BE DELUSIONAL, CONSTITUTED ‘RED FLAGS’ WARRANTING THE INQUIRY (FIRST DEPT). ​

The First Department, reversing defendant’s conviction, over a dissent, determined defendant’s request to represent himself should not have been granted without further inquiry into defendant’s mental health. The First Department found that the results of defendant’s CPL Article 730 competency exams, finding that defendant may have been delusional, constituted “red flags” that warranted further inquiry before allowing defendant to represent himself:

Not every indication of a defendant’s mental infirmity mandates inquiry. Expressions of paranoia or distrust of an attorney, common for many defendants, are not red flags … . Nor is a defendant’s belief that he or she was framed by police … . On the other hand, notwithstanding a CPL Article 730 exam finding defendant fit, court observations that a defendant was irrational and had a tendency to “fly off the handle” warranted a searching inquiry into defendant’s mental capacity … . So too, inquiry was warranted where defendant was observed by the court to be unruly, volatile and physically menacing … . In many cases, whether or not the behavior would trigger an inquiry may be a question of degree. * * *

Defendant appeared for trial before a justice who was presiding over the case for the first time. Defense counsel informed the court that defendant wished to proceed pro se. Neither defense counsel nor the prosecution made the court aware of defendant’s CPL Article 730 exams or the potential for him to be experiencing delusional thoughts. Although the trial court conducted an extensive colloquy with defendant regarding the waiver of the right to counsel, at no point did the court inquire into defendant’s mental health. We find that, notwithstanding other aspects of the record supporting defendant’s capacity, the information in the CPL Article 730 reports indicating a potential for delusional thought was a red flag that required a particularized assessment of defendant’s mental capacity before resolving his request to proceed pro se … . People v Zi, 2019 NY Slip Op 09353, First Dept 12-26-19

 

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ALTHOUGH THE ALLEGED RETALIATORY ACTIONS BY THE EMPLOYER TOOK PLACE YEARS AFTER PLAINTIFF STOPPED WORKING FOR THE EMPLOYER, THE COMPLAINT STATED VALID CAUSES OF ACTION FOR RETALIATORY EMPLOYMENT DISCRIMINATION AND PROMISSORY ESTOPPEL, SUPREME COURT REVERSED (FIRST DEPT). ​

The First Department, reversing Supreme Court, reinstated the retaliation (employment discrimination) and promissory estoppel causes of action against Artforum International Magazine. Plaintiff, an art curator, alleged sexual harassment by an Artforum publisher. After meeting with the two other publishers about the alleged harassment, the publishers allegedly promised to ensure the harassment would never happen again. Instead, plaintiff alleged, the publishers retaliated against her. The central issue on appeal is whether the actions by Artforum, which took place after plaintiff had left the magazine’s employment, could still be subject to the employment-discrimination prohibitions of the New York City Human Rights Law (NYC Administrative Code 8-107). The First Department held that the close-knit nature of the fine art business, and the effect the alleged retaliation by Artforum can have on plaintiff’s career in the art world, warranted finding plaintiff had stated valid causes of action:

… [T]here is jurisprudential grounding for expanding the boundaries of the employment context that is central to discrimination and retaliation claims in section 8-107(7) to the extent necessary to provide redress when there exists some nexus between the retaliatory harm alleged and a relationship characterized in some manner as one of employment, past or present. …

Similar reasoning can be justified in reading some expansiveness into the undefined and similarly ambiguous term “employment” for remedying retaliation under Administrative Code section 8-107(7). However, some safeguards are necessary to avoid the unintended consequence of allowing a lawsuit against a party who happens to be a plaintiff’s former employer on a retaliation theory when there is no reasonable connection between the harm alleged and that economic relationship. The plaintiff, if not a current employee, should be shown to occupy a subordinate position in an ongoing economic relationship that is threatened by the “employer’s” retaliation, and the nature of the retaliation itself should have a demonstrable nexus to the harm being alleged. Schmitt v Artforum Intl. Mag., Inc., 2019 NY Slip Op 09352, First Dept 12-26-19

 

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FATHER’S VISITATION SHOULD NOT HAVE BEEN SUBJECT TO MOTHER’S CONSENT; ATTORNEY FOR THE CHILD SHOULD NOT HAVE REFERRED TO EVIDENCE TAKEN IN THE LINCOLN HEARING IN THE APPELLATE BRIEF; THE HEARING TRANSCRIPTS ARE SEALED AND CONFIDENTIAL (THIRD DEPT). ​

The Third Department, modifying Family Court, determined father’s visitation rights should not have been made subject to mother’s consent and the attorney for the child should not have referred to the Lincoln hearing in the appellate brief:

Although the order provides the father with the opportunity for frequent and regular unsupervised access, the provision conditioning expansion of visitation to include overnight visitation only upon the mother’s consent is an impermissible delegation of authority … . …

… [W]e note our displeasure that the attorney for the children made repeated references to the Lincoln hearing in the appellate brief that he submitted on their behalf … . Family Court’s promise of confidentiality should not be lightly breached, and these transcripts are sealed. We again emphasize that “[t]he right to confidentiality during a Lincoln hearing belongs to the child and is superior to the rights or preferences of the parents. Children whose parents are engaged in custody and visitation disputes must be protected from having to openly choose between parents or openly divulging intimate details of their respective parent/child relationships” … . We further note that the breach of the confidentiality of the Lincoln hearing — and of the trust of the children — was exacerbated by the fact that the attorney for the children made certain representations about the children’s testimony that were inconsistent with their statements during the hearing. Matter of Ellen TT. v Parvaz UU., 2019 NY Slip Op 09328, Third Dept 12-26-19

 

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THE JURY WAS WRONGLY INSTRUCTED ON THE INFERENCE WHICH CAN BE DRAWN ABOUT THE LOCATION OF A BOUNDARY LINE FROM A SURVEY MAP FILED FOR MORE THAN 10 YEARS; VERDICT FINDING PLAINTIFF HAD WRONGLY SET THE PROPERTY BOUNDARY REVERSED (THIRD DEPT).

The Third Department, reversing the jury verdict finding that plaintiff had incorrectly set the western boundary of his property, held that the jury was wrongly instructed:

The jury received defective instructions as to the application of CPLR 4522. In that regard, Supreme Court charged the jury that “[a] 2002 survey map prepared by Surveyor Dickinson is in evidence. The survey was filed in 2002 with the Rensselaer County Clerk. The law provides that a map which has been on file with the County [Clerk] for more than [10] years is presumed to be accurate unless rebutted by other credible survey or expert opinion. In deciding whether the presumption of accuracy of the 2002 survey has been rebutted by other evidence you will apply the rules that I have already given you and will continue to give you about the evaluation of evidence.”

CPLR 4522 states that “[a]ll maps, surveys and official records affecting real property, which have been on file in the state in the office of . . . any county clerk . . . for more than [10] years, are prima facie evidence of their contents.” In analyzing similar statutory language from another hearsay exception contained in the same article of the CPLR, the Court of Appeals held that “[p]resumptive evidence[] is, . . . like the prima facie evidence to which CPLR 4518 (c) refers, evidence which permits but does not require the trier of fact to find in accordance with the presumed fact, even though no contradictory evidence has been presented. It is, in short, not a presumption which must be rebutted but rather an inference, like the inference of negligence denominated res ipsa loquitor” … .

Supreme Court’s charge required the jury to locate the western boundary of plaintiff’s property as depicted in the 2002 survey unless plaintiff offered evidence that rebutted the survey’s presumed accuracy. The jury should have been instructed that, in the absence of contradictory evidence, it was permitted but not required to adopt the western boundary as depicted in the 2002 survey. Hence, Supreme Court committed reversible error because the effect of the charge was to improperly require plaintiff to disprove the alleged accuracy of the 2002 survey map … . Kennedy v Nimons, 2019 NY Slip Op 09332, Third Dept 12-26-19

 

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CLAIMANT SHOULD NOT HAVE BEEN REQUIRED TO PROVIDE AN UNLIMITED MEDICAL RELEASE AS OPPOSED TO A LIMITED RELEASE CONCERNING ONLY THOSE AREAS OF HIS BODY AT ISSUE IN THE CLAIM FOR BENEFITS (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant was not required to provide an unlimited medical release. Claimant should have been required to provide a release limited to those areas of his body which were at issue in the claim for benefits:

The Board’s regulations provide that a limited release is a “limited authorization to obtain relevant medical records regarding the prior medical history of the body part or illness at issue” (12 NYCRR 300.37 [b] [1] [iii]). It is applicable “if the claimant files a completed employee claim form and indicates on the form that he or she had a prior injury to the same body part or similar illness to the one(s) listed on the form” (12 NYCRR 300.37 [b] [1] [iii]). There is no question that, prior to filing his claim, claimant received medical treatment from various physicians for the same sites of injury dating back to at least 2011. It is evident from the record and the briefs that both parties agree that the employer is entitled to claimant’s past medical records for the claimed sites. That said, claimant maintains that the Board erred in requiring him to sign an open-ended HIPAA release, without limiting that release to treatment records pertaining to the claimed sites. Although the employer would certainly be entitled to the medical records of all providers, once identified, who treated the claimed sites, the fact remains that claimant was only obligated to provide a limited release for those providers. As such, we agree with claimant that the Board erred in directing him to provide an unlimited medical release. Matter of Trusewicz v Delta Envtl., 2019 NY Slip Op 09336, Third Dept 12-26-19

 

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CHANGE IN TAX LAW RESULTING IN THE REMOVAL OF PETITIONER LAW FIRM’S CERTIFICATION AS A QUALIFIED EMPIRE ZONE ENTERPRISE ENTITLED TO TAX CREDITS SHOULD NOT HAVE BEEN APPLIED RETROACTIVELY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the amendments to the Economic Development Zones Act of 2009 should not have been applied retroactively to petitioners, MSLMSH (a law firm and related parties), to remove petitioners’ certification as a qualified empire zone enterprise (QEZE) entitled to tax credits based upon the location of the business in Syracuse:

… [R]esolution of this issue hinges upon examining the three factors articulated by the Court of Appeals in Matter of Replan Dev. v Department of Hous. Preserv. & Dev. of City of N.Y. (70 NY2d 451, 456 [1987] …) — specifically, a taxpayer’s forewarning of the change in law and the reasonableness of his or her reliance on the old law, the length of the retroactive period and the public purpose of the retroactive application.

… [T]he record reflects that MSLMSH was considering various places to relocate, but ultimately executed the 15-year lease in 2001 to remain in downtown Syracuse. MSLMSH also invested approximately $800,000 in equipment and furnishings. Around that time, MSLMSH was undergoing a corporate restructuring and reorganization, which led to the formation of Mackenzie Hughes in 2002. Mackenzie Hughes assumed many assets of MSLMSH, including the lease, and became QEZE certified in 2003. The testimony from the hearing further reflects that the expenditures and investments were made in reliance on receiving QEZE credits, and Mackenzie Hughes continued to operate its business with the QEZE certification until it was decertified in 2009. Based on the foregoing, we conclude that the partner petitioners’ reliance on the old law was reasonable. Nor do we find merit in the Commissioner’s assertion that the actions taken by MSLMSH prior to Mackenzie Hughes obtaining its QEZE certification were too attenuated to constitute justifiable reliance by the partner petitioners. Inasmuch as this factor weighs in favor of petitioners … and viewing all factors holistically, we conclude that the retroactive application of the 2009 amendments in this case was improper … . Matter of Mackenzie Hughes LLP v New York State Tax Appeals Trib., 2019 NY Slip Op 09337, Third Dept 12-26-19

 

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UNION REPRESENTING CITY EMPLOYEES HAS STANDING TO CONTEST THE CREATION OF A NEW CITY DEPARTMENT AFFECTING THOSE EMPLOYEES (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the labor union representing employees of the city’s Office of the Building Inspector and Bureau of Code Enforcement had standing to contest an executive order issued by the mayor and related regulations which created a new Building Department:

“[S]tanding is a threshold determination and a litigant must establish standing in order to seek judicial review, with the burden of establishing standing being on the party seeking review” … . A petitioner challenging governmental action must “show ‘injury in fact,’ meaning that [the petitioner] will actually be harmed by the challenged [governmental] action[,]” and, further, that the injury “fall[s] within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the [governmental entity] has acted” … . For an organization to have standing, it must establish “‘that at least one of its members would have standing to sue, that it is representative of the organizational purposes it asserts and that the case would not require the participation of individual members'” … .

Petitioners allege that the Mayor unlawfully engaged in a legislative act by creating the Buildings Department and that this unlawful legislative act brought the union’s members under the auspices/jurisdiction of the Commissioner, who used that unlawful grant of authority to enact a regulation that respondents have relied on to supplant the members’ negotiated rights regarding disciplinary proceedings, as set forth in the applicable collective bargaining agreement. In our view, these allegations would, if proven, demonstrate the requisite harm flowing from the executive order, which would fall within the zone of interests … . Matter of Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO v City of Schenectady, 2019 NY Slip Op 09342, Thrid Dept 12-26-19

 

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IT WAS AN ABUSE OF DISCRETION TO STRIKE PLAINTIFF’S COMPLAINT BASED UPON AN ALLEGED FAILURE TO COMPLY WITH COURT-ORDERED DISCOVERY (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined it was an abuse of discretion to grant defendants’ motion to strike the complaint for plaintiff’s alleged failure to comply with discovery orders. Discovery had been ongoing for years with several conferences with the judge and several orders to comply with new discovery demands:

… [I]t is undisputed that defendants’ motion to strike the complaint failed to include an affirmation of good faith as required by 22 NYCRR 202.7 … . Moreover, this error is compounded by the lack of other record evidence demonstrating that defendants engaged in good faith efforts to resolve the ongoing discovery issues without the need for judicial intervention. Despite plaintiff having at least partially complied with defendants’ discovery demands, the record is devoid of any correspondence or other documentation indicating that defendants ever specifically informed plaintiff’s counsel, other than in a generalized conclusory manner, in what manner the subject discovery responses were deficient or inadequate. Further, following the filing of defendants’ April 2018 motion to strike, defendants’ counsel failed to respond to four separate letters sent by plaintiff’s counsel in May 2018 wherein he provided certain additional discovery and otherwise attempted to ascertain from defendants what, if any, paper discovery remained outstanding. Notably, defendants have provided no explanation as to why they failed to provide any such response prior to the filing of defendants’ second motion to strike plaintiff’s complaint … .

Although we appreciate Supreme Court’s concern regarding the length of time that this action has been pending and the fact that the various discovery responses that plaintiff’s counsel did provide were unquestionably untimely, we do not find that defendants have established a “deliberately evasive, misleading and uncooperative course of conduct or a determined strategy of delay [by plaintiff] that would be deserving of the most vehement condemnation” … . Mesiti v Weiss. 2019 NY Slip Op 09343. Third Dept 12-26-19

 

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