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THE COUNTY LEGISLATURE DID NOT HAVE THE AUTHORITY TO ADOPT A RESOLUTION REQUIRING THE DISCLOSURE OF AN ASSISTANT DISTRICT ATTORNEY’S FINANCIAL INFORMATION AFTER THE COUNTY ETHICS COMMITTEE DENIED THE DISCLOSURE-REQUEST MADE BY A NEWSPAPER; THE LEGISLATURE USURPED THE POWER OF A REVIEWING COURT (SECOND DEPT).

The Second Department annulled a resolution adopted by the Suffolk County Legislature specifically allowing the publication of the financial disclosure information provided to the County Ethics Board by an assistant district attorney. A newspaper initially made the request of the Ethics Board. The request was denied and the newspaper did not seek review of the denial. The Legislature, in direct response to the denial of the newspaper’s request,  took it upon itself to adopt the resolution allowing the information to be made public. The Second Department held that the Legislature did not have the authority to essentially act as a reviewing court by passing a resolution addressed to a specific circumstance:

The County Legislature was established to determine County policies and to exercise other functions as may be assigned to it by law … . The County Legislature exercises the County’s powers of local legislation and appropriations … . The County Legislature has broad powers to enact local legislation. However, it is fundamental that legislative power does not extend so far as to apply the rules of law to particular cases, as the power to adjudicate the applicability of the law to individual situations is a judicial power … . A legislative body may not usurp a court’s power to interpret and apply the law to the particular circumstances before it … . Thus, it was beyond the authority of the County Legislature to determine that the Ethics Board’s decision to withhold the petitioner’s financial disclosure statements from public inspection was incorrect and to take it upon itself to obtain the statements and provide for their public release. Put another way, the County Legislature wrongly placed itself in the position of a reviewing court. This is particularly disturbing where the purportedly aggrieved newspaper took no steps to vindicate its rights to disclosure of the financial statements by the Ethics Board. Matter of Prudenti v Suffolk County Legislature, 2019 NY Slip Op 05779, Second Dept 7-24-19

 

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THE NYC DEPARTMENT OF SOCIAL SERVICES DOES NOT HAVE THE AUTHORITY TO RECOVER MEDICAID OVERPAYMENTS FROM PERSONAL CARE SERVICE PROVIDERS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kahn. over a two-justice dissent, determined that The City of New York Human Resources Administration Department of Social Services (HRA) does not have the authority to audit and recover overpayments of funds provided pursuant to the Health Care Reform Act (HCRA) from personal care service providers such as petitioner People Care Incorporated d/b/a Assisted Care:

The determinative issue on this appeal is not whether the HCRA funds were denominated as “Medicaid rates of payment” or “Medicaid rate adjustments” in the statute and the MOU [memorandum of understanding]. Rather, the issue presented here is whether, under the terms of the 2001 contract, Public Health Law § 2807-v(1)(bb)(i) and the MOU superseded the provisions of that contract as to the auditing and recoupment of HCRA funds. * * *

… [N]either Public Health Law § 2807-v(1)(bb), as the governing statute, nor the MOU between DOH [NYS Department of Health] and HRA, entered into pursuant to that statute, contains any language delegating DOH’s auditing and recoupment authority to HRA or any other agency. Matter of People Care Inc. v City of New York Human Resources Admin., 2019 NY Slip Op 05756, First Dep 7-23-19

 

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ALTHOUGH THERE IS NO CAUSE OF ACTION FOR CIVIL CONSPIRACY IN NEW YORK, THE ELEMENTS OF CONSPIRACY, INCLUDING OVERT ACTS, WERE PROPERLY PLED AS PART OF THE FRAUD CAUSE OF ACTION (FIRST DEPT). ​

The First Department, modifying Supreme Court, determined that, although there is no cause of action for civil conspiracy in New York, the conspiracy alleged here was validly pled as part of the fraud cause of action. The unjust enrichment cause of action should have been dismissed because there was no close relationship between the plaintiff and defendant. The complaint did not support the punitive damages claim because it did not allege defendants’ actions were aimed at the public or showed moral turpitude. The permanent injunction cause of action was validly pled because the injury cannot be fully compensated by money damages. The action stemmed from a failed partnership to develop a cure for rare genetic blood disorders:

The complaint states a cause of action for fraud by alleging that Sloan-Kettering knowingly misrepresented or omitted a material fact for the purpose of inducing plaintiff to rely upon it, that plaintiff justifiably relied on the misrepresentation or omission, and that plaintiff sustained injury … . …

… “[C]ivil conspiracy is not recognized as an independent tort in this State” … . Rather, the “allegations in the complaint herein charging conspiracy are deemed part of the remaining causes of action to which they are relevant” … . Here, the conspiracy charge remains as part of the fraud cause of action. …

… “[L]iability for fraud may be premised on knowing participation in a scheme to defraud, even if that participation does not by itself suffice to constitute the fraud” … . Allegations of conspiracy “serve to enable a plaintiff to connect a defendant with the acts of his co-conspirators where without it he could not be implicated” … .

… [P]laintiff sufficiently alleges overt acts …. …

… [T]he liability of a defendant as a conspirator for co-conspirators’ wrongful acts “does not necessarily depend upon his active participation in the particular overt acts” … . Moreover, once a conspiracy is established, all defendants are liable for each other’s acts in furtherance of the conspiracy … . Errant Gene Therapeutics, LLC v Sloan-Kettering Inst. for Cancer Research, 2019 NY Slip Op 05754, First Dept 7-23-19

 

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THE APPELLATE DIVISION DID NOT HAVE SUBJECT MATTER JURISDICTION BECAUSE PETITIONER’S REQUEST FOR AN ADMINISTRATIVE HEARING HAD BEEN DENIED, THE ARTICLE 78 PETITION, SEEKING REVIEW OF THE DISQUALIFICATION OF A BID ON A CONSTRUCTION PROJECT, WAS THEREFORE DISMISSED (THIRD DEPT).

The Third Department determined it did not have subject matter jurisdiction and therefore the Article 78 petition seeking review of the disqualification of a bid on a construction project must be denied. The appellate division, by statute, has jurisdiction only after an administrative hearing. Here petitioner’s request for a hearing was denied:

To commence this proceeding here, petitioner relied on Executive Law § 313 (5) (c), which states that, “[w]ithout limiting other grounds for the disqualification of bids . . . on the basis of non-responsibility, a contracting agency may disqualify the bid . . . as being non-responsible for failure to remedy notified deficiencies contained in the contractor’s utilization plan within a period of time specified in regulations promulgated by the director after receiving notification of such deficiencies from the contracting agency.” The statute further provides that “[w]here the contracting agency states that a failure to remedy any notified deficiency in the utilization plan is a ground for disqualification[,] the contractor shall be entitled to an administrative hearing, on a record[.] . . . A final administrative determination made following such hearing shall be reviewable in a proceeding commenced under [CPLR] article [78] . . . [and] shall be commenced in [this Court]” (Executive Law § 313 [5] [c]). The last quoted portion of the statute grants this Court original jurisdiction in a proceeding to challenge a final administrative determination that was made following a specified type of hearing, which is otherwise provided for in that paragraph. Respondent’s determination at issue here was not made following a hearing; indeed, the determination dismissed petitioner’s request for a hearing and petitioner is now seeking, as relief in this proceeding, a court order compelling respondent to conduct such a hearing. As no statute grants this Court original jurisdiction to review the determination that petitioner is challenging, we must dismiss the petition for lack of subject matter jurisdiction … . Matter of Accadia Site Contr., Inc. v Erie County Med. Ctr. Corp., 2019 NY Slip Op 05730, Third Dept 7-18-19

 

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THE JUDGE MISCHARACTERIZED THE EVIDENCE AND EXHIBITED BIAS IN FAVOR OF FATHER IN THIS CUSTODY CASE, THE DETERMINATION WAS REVERSED AND THE MATTER SENT BACK FOR ANOTHER HEARING BEFORE A DIFFERENT JUDGE (THIRD DEPT). ​

The Third Department, reversing the custody determination and remitting the matter for another hearing before a different judge, determined the judge mischaracterized the evidence and exhibited bias in favor of father:

We agree with the mother and the attorney for the child that Family Court’s decision and order misstates and mischaracterizes the record evidence and that the determination lacks a sound and substantial basis in the record. For example, the court determined that a “curious” exchange between the child and a therapist “tended to suggest that the child was confused about her feelings toward her father,” characterized the testimony by the mother’s forensic psychologist who deemed the mother mentally fit as a “brief interlude of comic relief,” and lauded the father’s willingness to undergo penile plethysmograph testing — characterized as “a colonoscopy of the soul” — as “speak[ing] volumes to his actual innocence.” The court went so far as to criticize the forensic expert’s testimony concerning the September 2016 visitation as an example of blending incidents by commenting, “The only blending here . . . is that of pseudoscience with the world’s oldest profession.” The record does not support any of this unfortunate and bizarre commentary.

It is concerning that Family Court wholeheartedly credited the father’s testimony, viewed most — if not all — of the evidence in a light least favorable to the mother …  and diminished the evidence of domestic violence perpetrated by the father against the mother in the child’s presence. Matter of Nicole TT. v David UU., 2019 NY Slip Op 05729, Third Dept 7-18-19

 

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DEFENDANT’S AGGRAVATED CRUELTY TO ANIMALS CONVICTION AFFIRMED; JUSTIFICATION DEFENSE APPLIES ONLY TO PERSONS, NOT ANIMALS; THE PRESENTENCE INTERVIEW AT THE PROBATION DEPARTMENT IS NOT A CRITICAL STAGE OF THE PROCEEDING REQUIRING THE PRESENCE OF DEFENDANT’S ATTORNEY (THIRD DEPT).

The Third Department affirmed defendant’s conviction of aggravated cruelty to animals (Agriculture and Markets Law 353-a) noting that the justification defense (on which the jury was instructed) applies only to persons, not animals. The defendant unsuccessfully argued the presentence report should have been ignored because his attorney was not present during the interview with the Probation Department:

Defendant contends that the court should have disregarded the report in its entirety and ordered a new one because the Probation Department did not abide by counsel’s request to be present for the presentence interview. “New York’s right to counsel applies to every critical stage of the criminal proceeding” … . However, in light of the nonadversarial nature of a routine presentence interview by a probation officer, courts have held that such an interview does not constitute a critical stage of the proceedings … . Therefore, defendant did not have a right to have counsel present during that interview. In any event, County Court granted defendant’s request to strike the portion of the report containing defendant’s statement related to this crime. People v Brinkley, 2019 NY Slip Op 05728, Third Dept 7-18-19

 

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GRAND JURY EVIDENCE SUPPORTED THE MANSLAUGHTER CHARGE BASED UPON THE SALE OF HEROIN WHICH ALLEGEDLY CAUSED THE VICTIM’S DEATH; COUNTY COURT SHOULD NOT HAVE DISMISSED THE MANSLAUGHTER COUNT (THIRD DEPT).

The Third Department, reversing County Court, over a dissent, determined the evidence of manslaughter presented to the grand jury was legally sufficient. Defendant allegedly provided very strong heroin to the victim, causing victim’s death:

“In the context of grand jury proceedings, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt” … . Thus, “if the [People have] established a prima facie case, the evidence is legally sufficient even though its quality or weight may be so dubious as to preclude indictment or conviction pursuant to other requirements” … . …

… [I]n order to find a defendant guilty of manslaughter in the second degree, the People are required to show that he or she “recklessly cause[d] the death of  another person” (Penal Law § 125.15 [1]). “A person acts recklessly with respect to a result or to a circumstance . . . when he [or she] is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists” … . …

Given defendant’s knowledge of the potency of the drugs that he was distributing and their potential lethality, it is evident that the nature of the risk involved was of such degree “that defendant’s failure to perceive it constituted a gross deviation from the standard of care that a reasonable person would observe in the situation” and that his actions were a sufficiently direct cause of the victim’s death for him to face the judgment of a jury … . People v Gaworecki, 2019 NY Slip Op 05725, Third Dept 7-18-19

 

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DEFENDANT’S WAIVER OF AN APPEAL FROM A JURY VERDICT (AS OPPOSED TO A GUILTY PLEA) WAS VALID (THIRD DEPT). ​

The Third Department, affirming defendant’s conviction, determined a defendant may validly waive an appeal from a jury verdict:

… “[A] defendant may waive his or her right to appeal from a jury verdict” … . The People set forth the terms of the postverdict agreement on the record, including that defendant would waive his right to appeal for a sentencing commitment of time served. County Court then engaged in a thorough colloquy with defendant, during which defendant acknowledged that he had discussed the agreement with counsel to his satisfaction and understood it. County Court explained the right to appeal from the conviction and eventual sentence, distinguished it from the trial rights that defendant had exercised and made clear that defendant was being asked to give it up as part of the agreement. Defendant confirmed that he understood all of this and orally waived his right to appeal. He further executed a written waiver that was handed up prior to sentencing, a document that included assurances that it had been signed by defendant in open court after consulting with defense counsel. We are satisfied from the foregoing that, notwithstanding isolated uses of language more appropriate for a waiver executed as part of a plea agreement, defendant knowingly, voluntarily and intelligently waived his right to appeal … . People v Shanks, 2019 NY Slip Op 05724, Third Dept 7-18-19

 

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THE CLAIM DID NOT ADEQUATELY DESCRIBE THE LOCATION OF CLAIMANT’S SLIP AND FALL AND EVIDENCE SUBMITTED BY THE CLAIMANT IN RESPONSE TO THE MOTION TO DISMISS NEED NOT BE CONSIDERED, CLAIM PROPERLY DISMISSED (THIRD DEPT).

The Third Department determined claimant in this slip and fall case did not meet the pleading requirements of Court of Claims Act 11 and her claim was therefore properly dismissed. Although claimant submitted an aerial map in opposition to the motion to dismiss, only the information in the claim need be considered:

Court of Claims Act § 11 (b) provides that “[t]he claim shall state the . . . place where such claim arose.” Although “absolute exactness” is not required, “a claimant must provide a sufficiently detailed description of the particulars of the claim to enable defendant to investigate and promptly ascertain the existence and extent of its liability”  … . “[D]efendant is not required to ferret out or assemble information that [Court of Claims Act § ] 11 (b) obligates the claimant to allege,” and “[f]ailure to abide by [the statute’s] pleading requirements constitutes a jurisdictional defect mandating dismissal of the claim, even though this may be a harsh result” … . …

Claimant alleged that she fell “on the exterior stairs/landing located proximate to Moffit Hall and Clinton Dining Hall.” The record establishes, however, that there are three staircases proximate to Moffit Hall and Clinton Dining Hall. Claimant’s contention that the location stated in her claim necessarily referred to the sole staircase/landing between the two buildings is without merit because the claim did not allege that the situs of the accident occurred between the two buildings … . In opposition to the motion to dismiss, claimant submitted an aerial map of where she allegedly fell. However, the aerial map does not cure the pleading defect in her claim because the aerial map was not included in her claim, and defendant is not required to go beyond the claim to ascertain the situs of the injury … . Katan v State of New York, 2019 NY Slip Op 05746, Third Dept 7-18-19

 

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ADJUDICATING DEFENDANT A YOUTHFUL OFFENDER FOR ONE CHARGE DID NOT REQUIRE A YOUTHFUL OFFENDER ADJUDICATION FOR AN UNRELATED CHARGE, EVEN THOUGH BOTH CHARGES WERE PART OF A JOINT PLEA AGREEMENT (THIRD DEPT).

The Third Department determined that the youthful offender adjudication for one charge did not require the court to adjudicate defendant a youthful offender for an unrelated charge, even though both charges were subject to a joint plea agreement:

Defendant’s primary contention is that County Court, having adjudicated him as a youthful offender on the unrelated charge, was also required to adjudicate him a youthful offender on the burglary charge. This is incorrect. Defendant relies upon CPL 720.20 (2), which provides, as relevant here, that, “[w]here an eligible youth is convicted of two or more crimes . . . set forth in two or more accusatory instruments consolidated for trial purposes, the court must not find [the youth] a youthful offender with respect to any such conviction . . . unless it finds him a youthful offender with respect to all such convictions” … . Contrary to defendant’s erroneous supposition, the accusatory instruments to which he pleaded guilty, i.e., the superior court informations charging him with burglary and the unrelated crime, were never “consolidated for trial purposes” so as to require a youthful offender adjudication on both or neither of the convictions (CPL 720.20 [2] …). Although both accusatory instruments were ultimately resolved under a joint agreement, defendant pleaded guilty to two separate superior court informations, and the record does not reflect that either party moved to consolidate them, that they were ordered joined for trial or, indeed, that they could have been properly joined (see CPL 200.20 [2], [4]; see also CPL 200.15). Consequently, “the sentencing court was authorized in its discretion to determine that the defendant was a youthful offender with respect to either or both convictions”… , and was not compelled to confer youthful offender status at sentencing on the burglary conviction. People v Turner, 2019 NY Slip Op 05718, Third Dept 7-18-19

 

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