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THE BOARD FAILED TO ADEQUATELY EXPLAIN ITS DECISION TO DENY COVERAGE OF MEDICAL BILLS ON THE GROUND THEY WERE NOT CAUSALLY RELATED TO CLAIMANT’S MEDICAL CONDITION, MAKING APPELLATE REVIEW IMPOSSIBLE; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the Board did not explain its decision to deny coverage of 25 medical bills based on the conclusion the bills did not relate to claimant’s medical condition:

Although, “the Board has the exclusive province to resolve conflicting medical opinions” and to evaluate medical evidence before it, and its factual determinations on causal relationship will not be disturbed if supported by substantial evidence in the record, its decision here fails to indicate what medical opinions or reports formed the basis for the conclusions reached regarding causal relationship … . It is further noted that many of the bills or supporting records include multiple diagnoses and charges, with some of the diagnoses appearing to match the established conditions, such as treatment for a urinary tract infection. No basis is provided for denying compensability for portions of the bills related to established conditions, i.e., for denying payment for the entire medical bill based upon the inclusion of non-compensable treatment in the bill or records.

By failing to provide the reasons for its rulings or the basis upon which the determination was made, the WCLJ [Workers’ Compensation Law Judge] and the Board “failed to satisfy [their] obligation to provide some basis for appellate review” … . Matter of Sequino v Sears Holdings, 2022 NY Slip Op 04070, Third Dept 6-23-22

Practice Point: When the Workers’ Compensation Board fails to adequately explain its denial of coverage for medical bills it concluded were not related to claimant’s medical condition, appellate review by a court is not possible and the matter must be remitted.

 

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FAMILY COURT HELD A HEARING IN THE MODIFICATION OF CUSTODY PROCEEDING BUT DID NOT STATE IN ITS DECISION THE FACTS RELIED UPON TO DENY THE PETITION; THE APPELLATE DIVISION REVIEWED THE EVIDENCE, REVERSED FAMILY COURT, AND GRANTED MOTHER’S PETITION (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s petition to modify custody should have been granted. Family Court held a hearing but did not, in its decision, state the facts relied upon to deny the petition. Because the record was sufficient, the Second Department exercised its authority to review the evidence and make its own determination:

… [T]o facilitate effective appellate review, the hearing court “must state in its decision ‘the facts it deems essential’ to its determination” … .

… [W]hile the Family Court stated in its decision that the allegations in the mother’s petition “largely stem from the difficulties that the parties have in co-parenting which predate her petition,” and that “both parties contribute to continuing the conflict between one another,” the court did not identify the facts adduced at the hearing that supported its denial of the mother’s petition. … . …

The evidence at the hearing showed that, on numerous occasions after the issuance of the 2018 custody order, the father, in the child’s presence, denigrated the mother and behaved inappropriately toward her … . The father consistently failed to make the child available for telephone and video calls with the mother as required by the original custody order, routinely ignored the mother’s attempted communications with the child, and repeatedly failed to adhere to the court-ordered parental access schedule … . The hearing testimony established that the father not only refused to foster a good relationship between the mother and the child—he expressly testified that he did not believe he had an obligation to do so—but actively sought to thwart such a relationship. “Parental alienation of a child from the other parent is an act so inconsistent with the best interests of the child[ ] as to, per se, raise a strong probability that the offending party is unfit to act as custodial parent” …

… [T]he father demonstrated a lack of interest in the child’s education and development by, among other things, refusing to have the child evaluated for learning disabilities or treated for his speech impediment … . … [T]he father failed to respond to the mother’s inquiries about the child’s health, education, and safety. Matter of Smith v Francis, 2022 NY Slip Op 04026, Second Dept 6-22-22

Practice Point: After a hearing on a petition to modify custody, Family Court, in its decision, must, but did not, state the facts relied upon in making its ruling denying the petition. The appellate division exercised its authority to review the evidence and make its own determination (reversing Family Court and granting mother’s petition for residential custody).

 

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SUPREME COURT DID NOT HAVE THE DISCRETION TO GRANT PLAINTIFF LEAVE TO AMEND A COMPLAINT AFTER THE COMPLAINT HAD BEEN DISMISSED FOR LACK OF STANDING BY THE APPELLATE DIVISION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, reversing Supreme Court, over a two-justice dissent, determined Supreme Court did not have the discretion to grant leave to amend a complaint which had been dismissed by the First Department for lack of standing. After the appeal, plaintiff had cured the standing defect and Supreme Court allowed the amendment after the time-period to commence a new action (CPLR 205(a)) had expired:

This appeal raises the interesting question of whether a trial court has the discretion to grant a plaintiff leave to amend a complaint, pursuant to CPLR 3025 (b) … , after the Appellate Division has already ordered the complaint dismissed, with direction to enter judgment. We dismissed the complaint because plaintiffs, as non-managing members of a manager-managed Delaware limited liability company, lacked capacity … or standing to act on behalf of the Company when they obtained a Certificate of Revival of the Company before filing a second amended complaint. After plaintiffs purportedly remedied this deficiency of proper standing, they sought to revive the dismissed action by seeking leave to file a third amended complaint. As aforementioned, after we had already ordered the complaint dismissed, the motion court granted plaintiffs leave to file the third amended complaint. At the time plaintiffs sought leave to amend, the time to commence a new action had expired, including the six-month grace period provided by CPLR 205(a). … Under these circumstances, we find that the trial court lacked discretion to grant plaintiffs leave to amend a complaint that had already been dismissed by this Court. * * *

Given this Court’s outright dismissal of the claims based on a finding of lack of standing, there was no action pending when plaintiffs moved for leave to file the third amended complaint. Thus, the trial court lacked any discretion or authority to grant plaintiffs such leave, where we had properly dismissed the second amended complaint before plaintiffs filed the motion to amend … .Favourite Ltd. v Cico, 2022 NY Slip Op 03987, First Dept 6-21-22

Practice Point: Once the complaint was dismissed for lack of standing by the First Department, there was no pending action. Once the time for commencing a new action pursuant to CPLR 205(a) had expired plaintiff was out of luck. Supreme Court did not have the discretion to grant plaintiff’s motion to amend the complaint after it had been dismissed by the First Department.

 

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THE INTOXICATED DEFENDANT’S DRIVING WHEN HE FLED FROM THE POLICE, WHILE RECKLESS, DID NOT DEMONSTRATE DEPRAVED INDIFFERENCE; DEPRAVED INDIFFERENCE MURDER CONVICTION NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE; CONVICTION REDUCED TO MANSLAUGHTER (THIRD DEPT). ​

The Third Department, reducing defendant’s conviction from depraved indifference murder to manslaughter, over a dissent, determined that the intoxicated defendant’s driving when fleeing from the police did not evince a complete disregard for the safety of others. Therefore the depraved indifference murder conviction was against the weight of the evidence:

… [T]he credible evidence at trial made clear that defendant was extremely intoxicated, but his driving prior to police pursuit demonstrated that he was aware of his surroundings, obeyed multiple traffic signals and responded to the alerts of other drivers. Although he was traveling at an exceptionally high rate of speed during the pursuit, he did so “on a roadway designed to accommodate greater rates of speed than residential roads, at an hour when lighter traffic conditions predominated” … , and there is no evidence that he failed to abide by any traffic signals while he fled or that any vehicles were forced to pull over or move out of his way … . According deference to the jury’s credibility determinations, defendant did partially enter the lane of oncoming traffic for brief periods of time, but such “episodic” conduct stands in stark contrast to cases where the defendant traveled in an oncoming lane “as part of a deadly game” … . Defendant in fact largely chose to evade police not by weaving in and out of the oncoming lane but instead by driving on a wide, paved shoulder, and, even if his “attempted escape [was] carried out in a reckless manner,” he may “simultaneously intend to flee police and avoid striking other cars” … . “No contact occurred between [defendant’s] vehicle and any other vehicle before the accident” … , and the limited evidence of his proximity to other vehicles prior to the collision falls short of establishing the sort of “narrow[] miss[es]” the disregard of which could be some evidence of depraved indifference … . People v Williams, 2022 NY Slip Op 03945, Third Dept 6-16-22

Practice Point: Here the intoxicated defendant acted recklessly in fleeing from the police, but his driving did not evince a depraved indifference to the safety of other drivers. For the most part defendant followed the rules of the road and avoided other vehicles. Therefore the depraved indifference murder conviction was not supported by the weight of the evidence. Conviction reduced to manslaughter.

 

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THE PEOPLE CAN NOT APPEAL THE GRANT OF DEFENDANT’S MOTION TO WITHDRAW HER PLEA, VACATE HER FELONY CONVICTION AND ALLOW HER TO PLEAD TO A MISDEMEANOR; DEFENDANT MADE THE MOTION AFTER SUCCESSFUL COMPLETION OF A DRUG-COURT TREATMENT PROGRAM (THIRD DEPT).

The Third Department determined the People could not appeal County Court’s granting defendant’s motion to withdraw her plea, vacate her felony conviction and allow her to plead to a misdemeanor. Defendant made the motion after she completed a drug-court treatment program:

“It is well settled that no appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute” … . “CPL 450.20 delineates the instances in which the People may appeal as of right to an intermediate appellate court” … . Here, judgment has not been entered. We find that County Court’s order resolved to be a postsentence, prejudgment motion and no right to appeal lies under CPL 450.20 … . We “may not resort to interpretative contrivances to broaden the scope and application of [this] statute[]” … , as the Legislature’s policy is “to limit appellate proliferation in criminal matters” … . “Absent a specific statute granting the People the right to appeal, . . . this Court is without jurisdiction to hear the appeal” … . People v Backus, 2022 NY Slip Op 03949, Third Dept 6-16-22

Practice Point: The People can only appeal on the grounds described in the Criminal Procedure Law (CPL). Here County Court granted defendant’s motion to withdraw her plea, vacate her felony conviction and allow her to plead to a misdemeanor, Her motion was made after she completed a drug-court treatment program. The CPL does not give the People the authority to appeal County Court’s grant of defendant’s motion.

 

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THE VALIDITY OF A GUILTY PLEA IS NOT PROPERLY RAISED IN THE COURT OF APPEALS AFTER THE AFFIRMANCE OF A LEGAL SENTENCE BY THE APPELLATE DIVISION; WHERE THE SENTENCE IS LEGAL, AN EXCESSIVE-SENTENCE CLAIM IS BEYOND THE SCOPE OF THE COURT OF APPEALS (CT APP).

The Court of Appeals, over an extensive two-judge dissenting opinion, determined (1) the validity of a guilty plea is not properly raised in the Court of Appeals after the appellate division has affirmed the defendant’s legal sentence, and (2) where a sentence is legal, an excessive-sentence claim is beyond the scope of the Court of Appeals:

Defendant’s challenge to the validity of his plea is not properly raised on this appeal from an Appellate Division order affirming a sentence, pursuant to 22 NYCRR § 670.11 (b) (see CPL 450.30 [1]; 470.35 [1]; People v Pagan, 19 NY3d 368, 370-371 [2012]). Defendant’s sentence—an authorized prison term with post-release supervision—is not illegal, and any excessive sentence claim is beyond the scope of this Court’s review (see People v Veale, 78 NY2d 1022, 1023-1024 [1991]). The many dissenting opinions cited by the dissent provide no support for a different result (see dissenting op at 6, 8-11). People v Laboriel, 2022 NY Slip Op 03863, CtApp 6-14-22

Practice Point: The affirmance of a legal sentence by the appellate division does not give the Court of Appeals the authority to review the validity of a guilty plea.

Practice Point: If a sentence is legal, an excessive-sentence claim is beyond the scope of the Court of Appeals.

 

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THE EVIDENCE OF “PHYSICAL INJURY” WAS LEGALLY INSUFFICIENT; ASSAULT SECOND CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s assault second conviction, determined the evidence the police officer sustained “physical injury” was legally insufficient:

” ‘Physical injury’ means impairment of physical condition or substantial pain” (Penal Law § 10.00 [9]). Although pain is subjective, the Court of Appeals has cautioned that “the Legislature did not intend a wholly subjective criterion to govern” … . “Factors relevant to an assessment of substantial pain include the nature of the injury, viewed objectively, the victim’s subjective description of the injury and his or her pain, whether the victim sought medical treatment, and the motive of the offender” … . Here, the officer testified that he experienced “quite a bit of pain” to his “left upper thigh/groin area” after struggling with defendant when he resisted arrest and that his pain was a 6 or 7 out of 10 on the pain scale. There was only a vague description of the injury, and no medical records for the officer were introduced in evidence … . In addition, there was no testimony that the officer took any pain medication for the injury … and the officer did not miss any work or testify that he was unable to perform any activities because of the pain. People v Bunton, 2022 NY Slip Op 03856, Fourth Dept 6-9-22

Practice Point: Here there was only a vague description of pain and no medical records were introduced. The assault conviction was not supported by legally sufficient evidence the police officer suffered “physical injury.”

 

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THE POLICE DID NOT HAVE A REASONABLE SUSPICION DEFENDANT WAS ARMED AND THEREFORE SHOULD NOT HAVE ATTEMPTED TO FRISK HIM; THE POLICE DID NOT HAVE PROBABLE CAUSE TO ARREST DEFENDANT WHEN HE THREW HIS COAT AT AN OFFICER AND RAN BECAUSE THE POLICE WERE NOT AUTHORIZED TO ATTEMPT THE FRISK; INDICTMENT DISMISSED; AN APPELLATE COURT CANNOT CONSIDER A THEORY WHICH WOULD SUPPORT DENIAL OF SUPPRESSION BUT WHICH WAS NOT RAISED BY THE PEOPLE BELOW (FOURTH DEPT).

The Fourth Department, dismissing the indictment, over a two-justice dissent, determined the police did not have a reasonable suspicion defendant was armed and therefore should not have attempted to frisk him when he got out of the vehicle. The fact that defendant threw his coat at the officer and ran did not justify defendant’s arrest for obstructing governmental administration because the police conduct (the attempted frisk) was not authorized:

… [T]he police proceeded to an attempted frisk by approaching the passenger side of the truck, opening the door, and directing defendant to exit the truck so that, as they informed defendant, they could perform a frisk of his person … . The attempted frisk was unlawful, however, because the record establishes that the police did not have ” ‘knowledge of some fact or circumstance that support[ed] a reasonable suspicion that . . . [defendant was] armed or pose[d] a threat to [their] safety’ ” … . Furthermore, even though defendant, despite being instructed to leave his coat in the truck, grabbed the coat, threw it onto one of the officers, and fled in the grassy area by the side of the interstate highway, instead of submitting to the frisk of his person, the police lacked probable cause to arrest defendant for obstructing governmental administration in the second degree based on his alleged obstruction of the officers’ attempted frisk, because that police conduct was not authorized … . Moreover, while the officers had also indicated to defendant that they were going to perform a search of the truck, the People did not rely below on the theory that defendant was properly arrested for obstructing a lawful search of the truck, nor, as the dissent states, did the court “explicitly base[] its decision on that theory.” We thus conclude that, as “an appellate court[, we] may not uphold a police action on a theory not argued before the suppression court” … . People v Hodge, 2022 NY Slip Op 03821, Fourth Dept 6-9-22

Practice Point: Here the police did not have a reasonable suspicion that the defendant was armed and therefore should not have attempted to frisk him. The fact that the defendant threw his coat at an officer and ran did not provide probable cause for arrest because the police conduct (attempting to frisk him) was not authorized. An appellate court cannot consider a theory which would support the denial of suppression but which was not raised below.

 

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AN INQUIRY MADE BY THE COURT CLERK OF PROSPECTIVE JURORS ABOUT WHETHER THEY COULD SERVE IN THIS SEXUAL-ASSAULT-OF-A-CHILD CASE DID NOT AMOUNT TO AN IMPROPER DELEGATION OF JUDICIAL AUTHORITY; THERE WAS NO MODE OF PROCEEDINGS ERROR (FIRST DEPT). ​

The First Department determined the judge did not improperly delegate judicial authority to the court clerk who made a preliminary inquiry of a group of prospective jurors:

Defendant was charged with committing sex crimes against his girlfriend’s six-year-old daughter. The evidence included two videos, taken with defendant’s phone, showing defendant having sexual intercourse with the child. On the first day of jury selection, to identify and dismiss prospective jurors who could not be fair and impartial in light of the nature of the charges and the graphic evidence, the court addressed the approximately 200 prospective jurors in groups of approximately 50. The court told each group about the charges and described the video evidence. All panelists who stated that they could not be fair and impartial in light of these circumstances were excused.

When jury selection continued two days later, 92 panelists remained. Because of the size of the group, they were placed in an assembly room down the hall from the courtroom and in the courtroom next door. The court informed the parties that some of the remaining panelists had approached court officers, stating that they had “thought about it” and now believed they could not serve as jurors. The court proposed sending the court clerk to each of the rooms where the jurors were waiting “to ask generally the question of since Tuesday is there anybody who in thinking about the judge’s questions believe they can’t serve on the case.” Any prospective jurors who answered in the affirmative would be brought into the courtroom for further questioning by the court. Defense counsel consented to this procedure.

Upon returning to the courtroom, the clerk reported that there were 10 prospective jurors who had “an issue.” The 10 panelists were brought to the courtroom, where the court inquired whether, based on “the nature of the case [and] the kind of evidence you will be seeing during the course of this trial,” the panelists now thought they could not be fair and impartial. People v Ocampo, 2022 NY Slip Op 03803, First Dept 6-9-22

Practice Point: Here defense counsel consented to the court clerk’s asking prospective jurors whether they could serve in this sexual-assault-of-a-child case. The inquiry was not an improper delegation of judicial authority. There was no mode of proceedings error (which would have required reversal on appeal even though the issue was not preserved).

 

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ALTHOUGH FATHER FAILED TO APPEAR, HIS COUNSEL APPEARED AND FATHER WAS THEREFORE NOT IN DEFAULT; BECAUSE FATHER WAS NOT IN DEFAULT, APPEAL IS NOT PRECLUDED (FOURTH DEPT).

The Fourth Department, vacating the portions of the order entered on default, determined father’s failure to appear was not a default because his counsel appeared. Because father was not in default, appeal is not precluded:

We agree with the father that Family Court erred in entering the order upon his default based on his failure to appear in court. The record establishes that the father “was represented by counsel, and we have previously determined that, [w]here a party fails to appear [in court on a scheduled date] but is represented by counsel, the order is not one entered upon the default of the aggrieved party and appeal is not precluded” … . Matter of Akol v Afet, 2022 NY Slip Op 03641, Fourth Dept 6-3-22

Practice Point: When counsel appears in Family Court, the party represented by counsel is not in default. An appeal is available to a party not in default.

 

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