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PETITIONER, A PRIVATE SCHOOL FOR DEVELOPMENTALLY DISABLED CHILDREN, HAD EXHAUSTED ITS ADMINISTRATIVE REMEDIES IN SEEKING REIMBURSEMENT FROM THE NYC DEPARTMENT OF EDUCATION FOR 24-HOUR CARE FOR A STUDENT WITH AUTISM, MATTER REMITTED WITH INSTRUCTION THAT THE DOCTRINE OF ESTOPPEL, BASED UPON A PROMISE TO REIMBURSE, MAY APPLY (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, reversing Supreme Court, determined the petitioner, a private residential school for children with intellectual and developmental disabilities (Center for Discovery), had exhausted its administrative remedies in seeking reimbursement from the NYC Department of Education for providing 24-hour care for a student with autism (pursuant to an Individualized Education Plan or IEP). The matter was therefore sent back to Supreme Court. The First Department noted that, although estoppel is usually not available in an action against a governmental agency, it may be appropriate here based upon the respondent’s alleged promise to reimburse petitioner and petitioner’s reliance on that promise:

… [W]e disagree that the doctrine of “exhaustion of remedies” precludes review of this case… .

A “final and binding” determination is one where the agency “reached a definitive position on the issue that inflicts actual, concrete injury,” and the injury may not be “significantly ameliorated by further administrative action or by steps available to the complaining party” … .

Respondent reached a definitive position concerning reimbursement for the additional services mandated by the amended IEP that inflicted concrete injury on petitioner. Counsel’s … email clearly stated that the City would not be reimbursing petitioner for the additional services mandated by the amended IEP. Petitioner had no available means of seeking review of respondent’s decision from respondent or any other City or State agency empowered to review, overturn, or reverse the City’s determination concerning reimbursement for the services explicitly mandated by the City in the amended IEP. The email was thus the “final” determination of respondent City on the issue … . …

Petitioner … alleges that it relied on respondent’s representation that it would be reimbursed for the additional services mandated and provided under the amended IEP. While estoppel is generally not available in an action against a government agency, this case presents a factual dispute as to the applicability of the doctrine that must be determined upon remand … . Matter of Center for Discovery, Inc. v NYC Dept. of Educ., 2018 NY Slip Op 03494, First Dept 5-15-18

​EDUCATION-SCHOOL LAW (PETITIONER, A PRIVATE SCHOOL FOR DEVELOPMENTALLY DISABLED CHILDREN, HAD EXHAUSTED ITS ADMINISTRATIVE REMEDIES IN SEEKING REIMBURSEMENT FROM THE NYC DEPARTMENT OF EDUCATION FOR 24-HOUR CARE FOR A STUDENT WITH AUTISM, MATTER REMITTED WITH INSTRUCTION THAT THE DOCTRINE OF ESTOPPEL, BASED UPON A PROMISE TO REIMBURSE, MAY APPLY (FIRST DEPT))/ADMINISTRATIVE LAW (EXHAUSTION OF REMEDIES, EDUCATION-SCHOOL LAW, PETITIONER, A PRIVATE SCHOOL FOR DEVELOPMENTALLY DISABLED CHILDREN, HAD EXHAUSTED ITS ADMINISTRATIVE REMEDIES IN SEEKING REIMBURSEMENT FROM THE NYC DEPARTMENT OF EDUCATION FOR 24-HOUR CARE FOR A STUDENT WITH AUTISM, MATTER REMITTED WITH INSTRUCTION THAT THE DOCTRINE OF ESTOPPEL, BASED UPON A PROMISE TO REIMBURSE, MAY APPLY (FIRST DEPT))/MUNICIPAL LAW (EDUCATION-SCHOOL LAW, PETITIONER, A PRIVATE SCHOOL FOR DEVELOPMENTALLY DISABLED CHILDREN, HAD EXHAUSTED ITS ADMINISTRATIVE REMEDIES IN SEEKING REIMBURSEMENT FROM THE NYC DEPARTMENT OF EDUCATION FOR 24-HOUR CARE FOR A STUDENT WITH AUTISM, MATTER REMITTED WITH INSTRUCTION THAT THE DOCTRINE OF ESTOPPEL, BASED UPON A PROMISE TO REIMBURSE, MAY APPLY (FIRST DEPT))/CIVIL PROCEDURE (EXHAUSTION OF REMEDIES, PETITIONER, A PRIVATE SCHOOL FOR DEVELOPMENTALLY DISABLED CHILDREN, HAD EXHAUSTED ITS ADMINISTRATIVE REMEDIES IN SEEKING REIMBURSEMENT FROM THE NYC DEPARTMENT OF EDUCATION FOR 24-HOUR CARE FOR A STUDENT WITH AUTISM, MATTER REMITTED WITH INSTRUCTION THAT THE DOCTRINE OF ESTOPPEL, BASED UPON A PROMISE TO REIMBURSE, MAY APPLY (FIRST DEPT))/ESTOPPEL (MUNICIPAL LAW, PETITIONER, A PRIVATE SCHOOL FOR DEVELOPMENTALLY DISABLED CHILDREN, HAD EXHAUSTED ITS ADMINISTRATIVE REMEDIES IN SEEKING REIMBURSEMENT FROM THE NYC DEPARTMENT OF EDUCATION FOR 24-HOUR CARE FOR A STUDENT WITH AUTISM, MATTER REMITTED WITH INSTRUCTION THAT THE DOCTRINE OF ESTOPPEL, BASED UPON A PROMISE TO REIMBURSE, MAY APPLY (FIRST DEPT))

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CLAIMANT, A SUBSTITUTE TEACHER, RECEIVED REASONABLE ASSURANCE OF EMPLOYMENT IN THE FOLLOWING SCHOOL YEAR (LABOR LAW 590), SHE WAS THEREFORE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined that the New York City Department of Education had demonstrated it had provided claimant, a substitute teacher, with reasonable assurance she would continue to be employed in the following school year. Her application for unemployment insurance benefits over the summer should, therefore, have been denied:

… [W]e find that the Board’s decision is not supported by substantial evidence. Initially, in reaching its conclusion, the Board essentially imposed a requirement that a reasonable assurance be a guarantee of earnings during the following school year, an interpretation that finds no support in the statute or case law. … Here, the 153 assignments that claimant obtained directly through school administrators during the 2015-2016 school year exceeded the 145 needed to satisfy the 90% threshold and should have been counted in determining whether she received a reasonable assurance of continued employment.

In addition to the June 2016 letter setting forth the basic terms of claimant’s continued employment during the 2016-2017 school year, the NYCDOE’s witness testified that no changes were anticipated with respect to the budget, salary or number of students and paraprofessionals needed for the upcoming school year. He further stated that 14% of jobs go unfilled, providing ample opportunity for substitutes to find openings. In view of the foregoing, the record establishes that the NYCDOE provided claimant a reasonable assurance of continued employment under Labor Law § 590 (11), thereby precluding her from receiving benefits … . Matter of Enman (New York City Dept. of Educ.–Commissioner of Labor), 2018 NY Slip Op 03416, Third Dept 5-10-18

​UNEMPLOYMENT INSURANCE (SUBSTITUTE TEACHERS, CLAIMANT, A SUBSTITUTE TEACHER, RECEIVED REASONABLE ASSURANCE OF EMPLOYMENT IN THE FOLLOWING SCHOOL YEAR (LABOR LAW 590), SHE WAS THEREFORE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS  (THIRD DEPT))/LABOR LAW (SUBSTITUTE TEACHERS, UNEMPLOYMENT INSURANCE,  CLAIMANT, A SUBSTITUTE TEACHER, RECEIVED REASONABLE ASSURANCE OF EMPLOYMENT IN THE FOLLOWING SCHOOL YEAR (LABOR LAW 590), SHE WAS THEREFORE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS  (THIRD DEPT))/SUBSTITUTE TEACHERS (UNEMPLOYMENT INSURANCE, CLAIMANT, A SUBSTITUTE TEACHER, RECEIVED REASONABLE ASSURANCE OF EMPLOYMENT IN THE FOLLOWING SCHOOL YEAR (LABOR LAW 590), SHE WAS THEREFORE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS  (THIRD DEPT))

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PETITIONER, AN EMPLOYEE OF THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES, COMMITTED NEGLECT WITHIN THE MEANING OF THE SOCIAL SERVICES LAW WHEN SHE USED THE TERM ‘RETARDED’ IN A CONVERSATION OVERHEARD BY SERVICE RECIPIENTS (THIRD DEPT).

The Third Department determined petitioner, an employee of the Office for People with Developmental Disabilities at the Brooklyn Developmental Disabilities Service Office, “committed acts of neglect [within the meaning of the Social Services Law] when [she] breached [her] duty towards multiple service recipients by failing to use appropriate and professional language in their presence.” Petitioner had used the work “retarded” in conversations overheard by two service recipients:

… [N]eglect is defined as an action “that breaches a custodian’s duty and that results in or is likely to result in physical injury or serious or protracted impairment of the physical, mental or emotional condition of a service recipient” (Social Services Law § 488 [1] [h]). Here, it is undisputed that petitioner used the word “retarded” while in a classroom when she was discussing mandated overtime work with the staff. Petitioner’s statement was overheard by two of the service recipients, who were, not surprisingly, offended by the word as evidenced by one service recipient running away from the classroom to report the incident and the other still being upset several days after the incident. Both of these service recipients were diagnosed with mild developmental disabilities, as well as a legion of other diagnoses. Petitioner, who had worked at the Brooklyn Developmental Disabilities Service Office for 10 years, worked directly with the service recipients and was familiar with their emotional and psychological conditions. Further, petitioner is charged with caring for these service recipients, who of course develop trust for their aides. Given this context, it is foreseeable that the word used by the trusted caregiver would be likely to seriously impair the service recipients’ already fragile emotional and psychological condition and there is no need for expert testimony to establish same … . As such, substantial evidence supports respondent’s final determination that petitioner committed a category three act of neglect … . Matter of Kelly v New York State Justice Ctr. for The Protection of People With Special Needs, 2018 NY Slip Op 03407, Third Dept 5-10-18

SOCIAL SERVICES LAW (PEOPLE WITH DEVELOPMENTAL DISABILITIES, NEGLECT, PETITIONER, AN EMPLOYEE OF THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES, COMMITTED NEGLECT WITHIN THE MEANING OF THE SOCIAL SERVICES LAW WHEN SHE USED THE TERM ‘RETARDED’ IN A CONVERSATION OVERHEARD BY SERVICE RECIPIENTS (THIRD DEPT))/DEVELOPMENTALLY DISABLED PERSONS (NEGLECT, PETITIONER, AN EMPLOYEE OF THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES, COMMITTED NEGLECT WITHIN THE MEANING OF THE SOCIAL SERVICES LAW WHEN SHE USED THE TERM ‘RETARDED’ IN A CONVERSATION OVERHEARD BY SERVICE RECIPIENTS (THIRD DEPT))/NEGLECT (DEVELOPMENTALLY DISABLED PERSONS, SOCIAL SERVICES LAW, PETITIONER, AN EMPLOYEE OF THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES, COMMITTED NEGLECT WITHIN THE MEANING OF THE SOCIAL SERVICES LAW WHEN SHE USED THE TERM ‘RETARDED’ IN A CONVERSATION OVERHEARD BY SERVICE RECIPIENTS (THIRD DEPT))/RETARDED'(PEOPLE WITH DEVELOPMENTAL DISABILITIES, NEGLECT, PETITIONER, AN EMPLOYEE OF THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES, COMMITTED NEGLECT WITHIN THE MEANING OF THE SOCIAL SERVICES LAW WHEN SHE USED THE TERM ‘RETARDED’ IN A CONVERSATION OVERHEARD BY SERVICE RECIPIENTS (THIRD DEPT))

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QUESTION OF FACT WHETHER ALLOWING TANDEM RIDING AND SPINNING THE TUBES IN ICY CONDITIONS UNREASONABLY INCREASED THE RISK IN THIS SNOW-TUBING INJURY CASE (THIRD DEPT).

The Third Department determined the defendant’s motion for summary judgment, asserting assumption of the risk, was properly denied in this snow-tubing injury case. Apparently plaintiff went over a berm and collided with a padded pole. There was a triable issue of fact whether allowing plaintiff and her daughters to ride tandem and spinning their tubes, under icy conditions, unreasonably increased the risk:

… [P]laintiff primarily relied on the deposition testimony of her companion and the project manager to argue that the weather and the condition of the lanes and snow berms on the day in question were such that spinning and in tandem tubing were contraindicated and, therefore, should not have been allowed. In particular, plaintiff’s companion testified that she walked from plaintiff’s lane to the pole with which plaintiff collided and found the terrain to be “[i]cy” and “hard.” Additionally, based on his examination of the glare and shadows in the photographs taken on the day of the accident, the project manager testified that the lanes and snow berms appeared “icy” and that the lanes were “probably getting a bit frozen over” and “fast.” He stated that when the lanes “iced up” and became too fast, the lane safety attendants at the bottom of the hill were supposed to either cut down the number of tubers that were permitted to ride together or prohibit tandem riding altogether. He further stated that he had previously observed snow tubers leave their lanes as a result of being spun. In our view, the foregoing proof, considered in the light most favorable to plaintiff … , raises a factual issue as to whether the risk of injury was unreasonably increased by the actions of the lane attendants — namely, allowing plaintiff and her daughters to ride tandem and spinning their tubes prior to their descent — under the particular weather and terrain conditions at the time of plaintiff’s injury … . Thompson v Windham Mtn. Partners, LLC, 2018 NY Slip Op 03415, Third Dept 5-10-18

​NEGLIGENCE (ASSUMPTION OF THE RISK, SNOW TUBING, QUESTION OF FACT WHETHER ALLOWING TANDEM RIDING AND SPINNING THE TUBES IN ICY CONDITIONS UNREASONABLY INCREASED THE RISK IN THIS SNOW-TUBING INJURY CASE (THIRD DEPT))/ASSUMPTION OF THE RISK (SNOW TUBING, ASSUMPTION OF THE RISK, SNOW TUBING, QUESTION OF FACT WHETHER ALLOWING TANDEM RIDING AND SPINNING THE TUBES IN ICY CONDITIONS UNREASONABLY INCREASED THE RISK IN THIS SNOW-TUBING INJURY CASE (THIRD DEPT))/SNOW TUBING (ASSUMPTION OF THE RISK, SNOW TUBING, QUESTION OF FACT WHETHER ALLOWING TANDEM RIDING AND SPINNING THE TUBES IN ICY CONDITIONS UNREASONABLY INCREASED THE RISK IN THIS SNOW-TUBING INJURY CASE (THIRD DEPT))

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LETTER WRITTEN BY PETITIONER UPON INVOLUNTARY ADMISSION TO A HOSPITAL SHOULD HAVE BEEN SEEN AS A DEMAND FOR AN EXPEDITED CHALLENGE TO THE CONFINEMENT UNDER THE MENTAL HYGIENE LAW (HABEAS CORPUS), ALTHOUGH THE ISSUE IS MOOT IN THIS CASE, THE ISSUE WAS HEARD ON APPEAL BECAUSE IT IS LIKELY TO RECUR (FIRST DEPT).

The First Department, as an exception to the mootness doctrine, determined a letter written by petitioner should have been interpreted as a demand to contest his involuntary confinement pursuant to the Mental Hygiene Law:

In light of petitioner’s release from involuntary confinement pursuant to Mental Hygiene Law (MHL) article 9, this appeal is moot, as petitioner concedes. However, we reach the merits because the appeal raises a substantial and novel issue that is likely to recur yet typically evades review … .We reject respondent’s argument that the issue raised in this proceeding is unlikely to recur … .

As respondent now concedes, the letter submitted by petitioner on the day he was involuntary admitted to Lincoln Hospital reasonably conveyed that he sought a “hearing on the question of need for involuntary care and treatment” (MHL § 9.31[a]), and should have been forwarded to the appropriate court “forthwith”… . The handwritten letter says, “I am falsely imprisoned and deprived of liberty,” in violation of certain United States Supreme Court decisions, “I demand a jury trial immediately,” and “I demand my lawyer.” To the extent the court found the request in this letter insufficiently clear or formal, because there were other, unrelated complaints raised in the letter or for any other reason, this was error. The letter should have been interpreted reasonably to effectuate the statute’s purpose of allowing patients to challenge their involuntary confinement on an expedited basis, as required by MHL § 9.31. Matter of State of N.Y. ex rel. Giffen v Hoffman, 2018 NY Slip Op 03462, First Dept 5-10-18

​MENTAL HYGIENE LAW (INVOLUNTARY CONFINEMENT, LETTER WRITTEN BY PETITIONER UPON INVOLUNTARY ADMISSION TO A HOSPITAL SHOULD HAVE BEEN SEEN AS A DEMAND FOR AN EXPEDITED CHALLENGE TO THE CONFINEMENT UNDER THE MENTAL HYGIENE LAW (HABEAS CORPUS), ALTHOUGH THE ISSUE IS MOOT IN THIS CASE, THE ISSUE WAS HEARD ON APPEAL BECAUSE IT IS LIKELY TO RECUR (FIRST DEPT))/INVOLUNTARY CONFINEMENT (MENTAL HYGIENE LAW, LETTER WRITTEN BY PETITIONER UPON INVOLUNTARY ADMISSION TO A HOSPITAL SHOULD HAVE BEEN SEEN AS A DEMAND FOR AN EXPEDITED CHALLENGE TO THE CONFINEMENT UNDER THE MENTAL HYGIENE LAW (HABEAS CORPUS), ALTHOUGH THE ISSUE IS MOOT IN THIS CASE, THE ISSUE WAS HEARD ON APPEAL BECAUSE IT IS LIKELY TO RECUR (FIRST DEPT))/APPEALS (MOOTNESS, EXCEPTION TO, MENTAL HYGIENE LAW, (INVOLUNTARY CONFINEMENT, LETTER WRITTEN BY PETITIONER UPON INVOLUNTARY ADMISSION TO A HOSPITAL SHOULD HAVE BEEN SEEN AS A DEMAND FOR AN EXPEDITED CHALLENGE TO THE CONFINEMENT UNDER THE MENTAL HYGIENE LAW (HABEAS CORPUS), ALTHOUGH THE ISSUE IS MOOT IN THIS CASE, THE ISSUE WAS HEARD ON APPEAL BECAUSE IT IS LIKELY TO RECUR (FIRST DEPT))/MOOTNESS (APPEALS, MENTAL HYGIENE LAW, (INVOLUNTARY CONFINEMENT, LETTER WRITTEN BY PETITIONER UPON INVOLUNTARY ADMISSION TO A HOSPITAL SHOULD HAVE BEEN SEEN AS A DEMAND FOR AN EXPEDITED CHALLENGE TO THE CONFINEMENT UNDER THE MENTAL HYGIENE LAW (HABEAS CORPUS), ALTHOUGH THE ISSUE IS MOOT IN THIS CASE, THE ISSUE WAS HEARD ON APPEAL BECAUSE IT IS LIKELY TO RECUR (FIRST DEPT))/CONSTITUTIONAL LAW (HABEAS CORPUS, MENTAL HYGIENE LAW, (INVOLUNTARY CONFINEMENT, LETTER WRITTEN BY PETITIONER UPON INVOLUNTARY ADMISSION TO A HOSPITAL SHOULD HAVE BEEN SEEN AS A DEMAND FOR AN EXPEDITED CHALLENGE TO THE CONFINEMENT UNDER THE MENTAL HYGIENE LAW (HABEAS CORPUS), ALTHOUGH THE ISSUE IS MOOT IN THIS CASE, THE ISSUE WAS HEARD ON APPEAL BECAUSE IT IS LIKELY TO RECUR (FIRST DEPT))/HABEAS CORPUS (MENTAL HYGIENE LAW, INVOLUNTARY CONFINEMENT, LETTER WRITTEN BY PETITIONER UPON INVOLUNTARY ADMISSION TO A HOSPITAL SHOULD HAVE BEEN SEEN AS A DEMAND FOR AN EXPEDITED CHALLENGE TO THE CONFINEMENT UNDER THE MENTAL HYGIENE LAW (HABEAS CORPUS), ALTHOUGH THE ISSUE IS MOOT IN THIS CASE, THE ISSUE WAS HEARD ON APPEAL BECAUSE IT IS LIKELY TO RECUR (FIRST DEPT))

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WIFE NOT ENTITLED TO UNSEAL RECORD OF HUSBAND’S ALLEGED ASSAULT AGAINST HER IN THESE DIVORCE PROCEEDINGS, HUSBAND WAS GRANTED AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL AND DID NOT PLACE THE CRIMINAL MATTER IN ISSUE, THE RECORD WAS SEALED BY OPERATION OF THE CRIMINAL PROCEDURE LAW (THIRD DEPT).

The Third Department determined the wife’s request, in this divorce proceeding, to unseal the record of her husband’s criminal proceedings was properly denied. The husband had been charged with an assault against the wife, and the proceedings terminated favorably to the husband (he was granted an adjournment in contemplation of dismissal). The record was therefore sealed by operation of statute (Criminal Procedure Law (CPL)160.50):

By “provid[ing] for the sealing of records in a criminal proceeding which terminates in favor of the accused” … ,CPL 160.50 “serves the laudable goal of insuring that one who is charged but not convicted of an offense suffers no stigma as a result of his [or her] having once been the object of an unsustained accusation” … . It is undisputed that the charges against the husband related to the December 2015 incident were “deemed dismissed as a result of an adjournment in contemplation of dismissal and, therefore, the records of that criminal prosecution were sealed” … . The wife does not claim that any statutory exception entitles her to the records. Her primary contention is instead that the husband, by denying the alleged behavior that led to the charges, waived the statutory bulwark against disclosure by “commenc[ing] a civil action and affirmatively plac[ing] the information protected by CPL 160.50 into issue”… ..

The wife’s argument founders upon the fact that it was she, not the husband, who has “place[d] in issue elements that are common or related to the prior criminal action” by alleging the husband’s assaultive conduct … . Prag v Prag, 2018 NY Slip Op 03414, Third Dept 5-10-18

​FAMILY LAW (CRIMINAL LAW, SEALING OF RECORD, WIFE NOT ENTITLED TO UNSEAL RECORD OF HUSBAND’S ALLEGED ASSAULT AGAINST HER IN THESE DIVORCE PROCEEDINGS, HUSBAND WAS GRANTED AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL AND DID NOT PLACE THE CRIMINAL MATTER IN ISSUE, THE RECORD WAS SEALED BY OPERATION OF THE CRIMINAL PROCEDURE LAW (THIRD DEPT))/CRIMINAL LAW (FAMILY LAW, SEALING OF RECORD OF CRIMINAL PROCEEDINGS, WIFE NOT ENTITLED TO UNSEAL RECORD OF HUSBAND’S ALLEGED ASSAULT AGAINST HER IN THESE DIVORCE PROCEEDINGS, HUSBAND WAS GRANTED AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL AND DID NOT PLACE THE CRIMINAL MATTER IN ISSUE, THE RECORD WAS SEALED BY OPERATION OF THE CRIMINAL PROCEDURE LAW (THIRD DEPT))/SEALING (CRIMINAL LAW, WIFE NOT ENTITLED TO UNSEAL RECORD OF HUSBAND’S ALLEGED ASSAULT AGAINST HER IN THESE DIVORCE PROCEEDINGS, HUSBAND WAS GRANTED AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL AND DID NOT PLACE THE CRIMINAL MATTER IN ISSUE, THE RECORD WAS SEALED BY OPERATION OF THE CRIMINAL PROCEDURE LAW (THIRD DEPT))

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PETITIONER-INMATE, WHO WAS CONDUCTING A CLASS ON AFRICAN-AMERICAN HISTORY, DID NOT VIOLATE PRISON RULES PROHIBITING GANG ACTIVITY BY DISCUSSING THE BLACK PANTHER PARTY AND THE BLOODS (THIRD DEPT).

The Third Department, annulling the disciplinary determination, held that petitioner-inmate, who was teaching a course on African-American history, did not violate prison rules prohibiting gang activity by describing the the operating rules of the Black Panther Party or by commenting on the Bloods:

While discussing the history of the Black Panther Party and its apparent code of ethics, known as the “Eight Points of Attention,” petitioner stated that the eighth point was “[i]f we ever have to take captives, do not ill treat them.” Later in the class while critiquing another group, known as “Damu” or the Bloods gang, he stated, in relevant part, that “they could be the biggest army across this country if they were to organize themselves.” * * *

A review of the videotape of the class clearly reveals that petitioner made the statements at issue while discussing African-American organizations from an historical, cultural and political perspective and that such statements were consistent with the approved subject matter of the class. At no point did petitioner advocate that the class participants, none of whom were revealed to be gang members, engage in violent behavior by actually taking hostages or that they organize by banding together to become members of the Bloods gang. Rather, the videotape discloses that petitioner engaged in a detailed discussion of various historical events during the 1½-hour class and recited facts regarding these organizations that he thought were relevant in an effort to engage the class participants. Viewing the statements in the proper context, the evidence does not establish that petitioner “engage[d] in any violent conduct or conduct involving the threat of violence either individually or in a group” … or that he “l[ed], organize[d], participate[d], or urge[d] other inmates to participate, in a work-stoppage, sit-in, lock-in, or other actions which may be detrimental to the order of the facility” … . Likewise, the evidence does not demonstrate that petitioner “engage[d] in or encourage[d] others in gang activities or meetings” … . Matter of Bottom v Annucci, 2018 NY Slip Op 03413, Third Dept 5-10-18

​DISCIPLINARY HEARINGS (INMATES) (PETITIONER-INMATE, WHO WAS CONDUCTING A CLASS ON AFRICAN-AMERICAN HISTORY, DID NOT VIOLATE PRISON RULES PROHIBITING GANG ACTIVITY BY DISCUSSING THE BLACK PANTHER PARTY AND THE BLOODS (THIRD DEPT))/GANGS (INMATES, DISCIPLINARY HEARINGS, PETITIONER-INMATE, WHO WAS CONDUCTING A CLASS ON AFRICAN-AMERICAN HISTORY, DID NOT VIOLATE PRISON RULES PROHIBITING GANG ACTIVITY BY DISCUSSING THE BLACK PANTHER PARTY AND THE BLOODS (THIRD DEPT))

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POLICE ENTRY INTO A SINGLE USE BATHROOM IN A COMMERCIAL ESTABLISHMENT CONSTITUTED A SEARCH, DEFENDANT’S SUPPRESSION MOTION SHOULD NOT HAVE BEEN DENIED BASED UPON THE CONCLUSION THE DEFENDANT DID NOT HAVE AN EXPECTATION OF PRIVACY, MATTER REMITTED FOR CONSIDERATION OF ANOTHER ISSUE WHICH SUPREME COURT DID NOT RULE ON (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the defendant had an expectation of privacy in a single-use bathroom in an adult bookstore, His suppression motion should not, therefore, have been denied on the ground the police entry into the bathroom was not a search. The matter was remitted for consideration of the issue raised by the People at the suppression hearing which was not ruled on by Supreme Court:

The court erred in denying defendant’s suppression motion on the ground that the police entrance into a single-use restroom located in an adult film and novelty store was not a “search” for purposes of the Fourth Amendment. We conclude that, once he closed the door, defendant had a reasonable expectation of privacy while using the small, single-use restroom because at that point he was “entitled to assume that while inside he … will not be viewed by others” … . The closed door of the restroom was comparable to closed bathroom stalls in public restrooms, where a reasonable expectation of privacy exists … . This expectation of privacy was not negated by the facts that the restroom was located in a commercial establishment and was unlocked … .

In the alternative, the People argue, as they did at the hearing, that the police entrance into the restroom was reasonable because it was based on probable cause to suspect that there was drug use occurring inside. However, because “the hearing court did not rule on this issue in denying the suppression motion, and therefore did not rule adversely against defendant on this point, we may not reach it on this appeal” … . Accordingly, we hold the appeal in abeyance and remand for determination, based on the hearing minutes, of the issue raised at the hearing, but not decided … . People v Vinson, 2018 NY Slip Op 03437, First Dept 5-10-18

​CRIMINAL LAW (SEARCH AND SEIZURE, EXPECTATION OF PRIVACY, POLICE ENTRY INTO A SINGLE USE BATHROOM IN A COMMERCIAL ESTABLISHMENT CONSTITUTED A SEARCH, DEFENDANT’S SUPPRESSION MOTION SHOULD NOT HAVE BEEN DENIED BASED UPON THE CONCLUSION THE DEFENDANT DID NOT HAVE AN EXPECTATION OF PRIVACY, MATTER REMITTED FOR CONSIDERATION OF ANOTHER ISSUE WHICH SUPREME COURT DID NOT RULE ON (FIRST DEPT))/SEARCH AND SEIZURE (EXPECTATION OF PRIVACY, POLICE ENTRY INTO A SINGLE USE BATHROOM IN A COMMERCIAL ESTABLISHMENT CONSTITUTED A SEARCH, DEFENDANT’S SUPPRESSION MOTION SHOULD NOT HAVE BEEN DENIED BASED UPON THE CONCLUSION THE DEFENDANT DID NOT HAVE AN EXPECTATION OF PRIVACY, MATTER REMITTED FOR CONSIDERATION OF ANOTHER ISSUE WHICH SUPREME COURT DID NOT RULE ON (FIRST DEPT))/SUPPRESSION (SEARCH AND SEIZURE, EXPECTATION OF PRIVACY, POLICE ENTRY INTO A SINGLE USE BATHROOM IN A COMMERCIAL ESTABLISHMENT CONSTITUTED A SEARCH, DEFENDANT’S SUPPRESSION MOTION SHOULD NOT HAVE BEEN DENIED BASED UPON THE CONCLUSION THE DEFENDANT DID NOT HAVE AN EXPECTATION OF PRIVACY, MATTER REMITTED FOR CONSIDERATION OF ANOTHER ISSUE WHICH SUPREME COURT DID NOT RULE ON (FIRST DEPT))/EXPECTATION OF PRIVACY (SEARCH AND SEIZURE, POLICE ENTRY INTO A SINGLE USE BATHROOM IN A COMMERCIAL ESTABLISHMENT CONSTITUTED A SEARCH, DEFENDANT’S SUPPRESSION MOTION SHOULD NOT HAVE BEEN DENIED BASED UPON THE CONCLUSION THE DEFENDANT DID NOT HAVE AN EXPECTATION OF PRIVACY, MATTER REMITTED FOR CONSIDERATION OF ANOTHER ISSUE WHICH SUPREME COURT DID NOT RULE ON (FIRST DEPT))/APPEALS (CRIMINAL LAW, MATTER REMITTED FOR CONSIDERATION OF AN ISSUE WHICH SUPREME COURT DID NOT RULE ON (FIRST DEPT))

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INDICTMENT COUNT CHARGING 20 INDIVIDUAL INSTANCES OF CONTEMPT WAS DUPLICITOUS, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the indictment which charged 20 individual crimes (contempt) in a single count was duplicitous:

The criminal contempt count was duplicitous because defendant’s acts of violating an order of protection by regularly but briefly showing up at the victim’s apartment, over the course of about a month and 20 days, constituted distinct crimes that were required to be alleged in separate counts … .

Defendant preserved this argument by moving to dismiss that count on the same ground in his omnibus motion, which the court denied … and we find the People’s arguments on the issue of preservation unavailing. The defect was in the language of the indictment itself, and it did not depend on the trial evidence or the court’s charge. People v Villalon, 2018 NY Slip Op 03431, First Dept 5-10-18

​CRIMINAL LAW (INDICTMENT COUNT CHARGING 20 INDIVIDUAL INSTANCES OF CONTEMPT WAS DUPLICITOUS, CONVICTION REVERSED (FIRST DEPT))/DUPLICITOUS (CRIMINAL LAW, INDICTMENT COUNT CHARGING 20 INDIVIDUAL INSTANCES OF CONTEMPT WAS DUPLICITOUS, CONVICTION REVERSED (FIRST DEPT))/INDICTMENTS (DUPLICITOUS, INDICTMENT COUNT CHARGING 20 INDIVIDUAL INSTANCES OF CONTEMPT WAS DUPLICITOUS, CONVICTION REVERSED (FIRST DEPT))

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PARTIES’ CONDUCT AFTER THE PURPORTED TERMINATION OF THE SHAREHOLDERS’ AGREEMENT COULD INDICATE THE PARTIES INTENDED THE CONTRACT TO CONTINUE (IMPLIED CONTRACT), DEFENDANT’S MOTION TO DISMISS THIS BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the parties’ conduct after a purported termination of a shareholders’ agreement could indicate the parties intended the contract to continue (an implied contract). Defendant’s motion to dismiss this breach of contract action should not have been granted:

“On a motion to dismiss pursuant to CPLR 3211, we construe the pleadings liberally, accept the allegations in the complaint to be true, give [the] plaintiff[] the benefit of any favorable inferences and ‘determine only whether the facts as alleged fit within any cognizable legal theory'”… . Supreme Court held that defendant could not have breached the shareholders’ agreement in 2016, as the agreement explicitly terminated when he became the “only . . . remaining [s]hareholder” of the dealerships in 2007. It is true that “[w]hen a contract is terminated, such as by expiration of its own terms, the rights and obligations thereunder cease” … . Nevertheless, “the conduct of parties to a contract following its termination may demonstrate that they intended to create an implied contract to be governed by the terms of the expired contract, and whether there was a ‘meeting of the minds’ required for formation of such an enforceable agreement is generally a question of fact” … . It is undisputed that defendant continued to make monthly payments as required by the shareholders’ agreement after the shares were conveyed, and this ongoing compliance with the agreement’s terms required further inquiry into “the conduct of the parties to determine whether the terms of the [shareholders’ agreement] continue[d] to apply” … . Supreme Court accordingly erred in concluding, as a matter of law, that defendant could not have breached the terms of the shareholders’ agreement due to its termination. Harris v Reagan, 2018 NY Slip Op 03408, Third Dept 5-10-18

​CONTRACT LAW (PARTIES’ CONDUCT AFTER THE PURPORTED TERMINATION OF THE SHAREHOLDERS’ AGREEMENT COULD INDICATE THE PARTIES INTENDED THE CONTRACT TO CONTINUE (IMPLIED CONTRACT), DEFENDANT’S MOTION TO DISMISS THIS BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/CIVIL PROCEDURE (MOTION TO DISMISS, PARTIES’ CONDUCT AFTER THE PURPORTED TERMINATION OF THE SHAREHOLDERS’ AGREEMENT COULD INDICATE THE PARTIES INTENDED THE CONTRACT TO CONTINUE (IMPLIED CONTRACT), DEFENDANT’S MOTION TO DISMISS THIS BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/CPLR 3211(PARTIES’ CONDUCT AFTER THE PURPORTED TERMINATION OF THE SHAREHOLDERS’ AGREEMENT COULD INDICATE THE PARTIES INTENDED THE CONTRACT TO CONTINUE (IMPLIED CONTRACT), DEFENDANT’S MOTION TO DISMISS THIS BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/IMPLIED CONTRACT (PARTIES’ CONDUCT AFTER THE PURPORTED TERMINATION OF THE SHAREHOLDERS’ AGREEMENT COULD INDICATE THE PARTIES INTENDED THE CONTRACT TO CONTINUE (IMPLIED CONTRACT), DEFENDANT’S MOTION TO DISMISS THIS BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))

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