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Petitioner, Who Was Sentenced to Death in Federal Court, Could Not Be Declared “Civilly Dead” Pursuant to the Civil Rights Law—Paternity Petition Should Not Have Been Dismissed

The Second Department reversed Family Court’s dismissal of an inmate’s petition for a declaration of paternity.  The petitioner had been sentenced to death in federal court.  Civil Rights Law 79-a, which declares anyone sentenced to life imprisonment in state court “civilly dead,” was the basis of Family Court’s ruling.  The Second Department would not extend the reach of the statute to a death sentence in federal court:

Contrary to the Family Court’s determination, the civil death provision of Civil Rights Law § 79-a(1) does not apply to the petitioner since he was sentenced to death in federal court, rather than state court … . Moreover, although Civil Rights Law § 79-a(1) declares civilly dead any person sentenced to imprisonment for life, it contains no provision pertaining to a person subject to a sentence of death, and it is not for the courts to expand terms beyond the plain language of statutes … . Matter of Ronell W v Nancy G, 2014 NY Slip OP 06987, 2nd Dept 10-15-14

 

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Plaintiffs Entitled to Attorney’s Fees Pursuant to 42 USC 1988—Criteria Explained

The Fourth Department reversed Supreme Court and found that plaintiffs were entitled to attorney’s fees under 42 USC 1988.

Plaintiffs had brought an Article 78/declaratory judgment proceeding alleging that they had been improperly removed by the city from an approved list of certified lead inspectors. The plaintiffs prevailed and were returned to the list.  Although the Article 78/declaratory judgment determination was made on state grounds, a federal “denial of due process” claim had also been made.  The Fourth Department explained the criteria for the award of attorney’s fees in this context:

The governing statute, 42 USC § 1988 (b), provides that, “[i]n any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs . . .” “Although some courts have held, as did the court in this case, that the decision whether to grant an award is entirely discretionary . . . this is incorrect . . . [T]he prevailing party ordinarily should recover reasonable fees unless special circumstances would render such an award unjust’ ” … . Where, as here, “relief is sought on both State and Federal grounds, but nevertheless awarded on State grounds only,” attorney’s fees may be awarded if a constitutional question is involved and such question is “substantial and arises out of a common nucleus of operative facts as the State claim” … . “The threshold for establishing substantiality of a Federal claim is minimal: the claim must not be wholly insubstantial,’ obviously frivolous’ or obviously without merit’ “… . Cerberus Props LLC v Kirkmire, 2014 NY Slip Op 06723, 4th Dept 10-3-14

 

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Law Explained Re: Suit Against Municipality and Police Officers Alleging Excessive Force

The Second Department explained the law relevant to a suit against police officers, including “John Does,” and a municipality alleging the excessive use of force.  A “1983” action against a municipality cannot be based solely on the actions of an employee or on the basis of respondeat superior, but an intentional tort action can.  “John Does” must be identified and served within the applicable statute of limitations:

“Claims that law enforcement personnel used excessive force in the course of an arrest are analyzed under the Fourth Amendment and its standard of objective reasonableness” … . “The reasonableness of an officer’s use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight'” … . Because of its intensely factual nature, the question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide … . If found to be objectively reasonable, the officer’s actions are privileged under the doctrine of qualified immunity … . “To recover damages for battery, a plaintiff must prove that there was bodily contact, that the contact was offensive, i.e., wrongful under all of the circumstances, and intent to make the contact without the plaintiff’s consent” … . * * *

“A municipality is not liable under 42 USC § 1983 for an injury inflicted solely by its employees or agents” …, or “solely upon the doctrine of respondeat superior or vicarious liability” … . * * *

Unlike cases commenced under 42 USC § 1983, municipalities may be liable, under the doctrine of respondeat superior, for the common law torts, such as false arrest, malicious prosecution, assault, and battery, committed by their employees … . * * *

The Town defendants demonstrated that the complaint should be dismissed insofar as asserted against the John Does by showing that the plaintiffs failed to identify the John Does and serve them with process prior to the expiration of the statutes of limitations applicable to this case. In opposition, the plaintiffs failed to raise a triable issue of fact as to whether they exercised due diligence in attempting to identify and serve the John Does such that the applicable limitations periods had tolled or were otherwise inapplicable … . Lepore v Town of Greenburgh, 2014 NY Slip Op 06063, 2nd Dept 9-10-14

 

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Negligence and “1983” Causes of Action Against the City and/or City Employees Stemming from the Alleged Failure to Provide Medical Assistance to a Rikers Island Inmate Reinstated

The First Department, reversing Supreme Court, determined there were triable issues of fact concerning whether corrections officers breached a duty to protect the decedent, an inmate at Rikers Island, by failing to respond to decedent’s medical emergency.  The court also determined there were triable issues of fact concerning a 1983 action against one of the city employees based upon her alleged “deliberate indifference” to decedent’s “serious medical needs.”  The court noted that the 1983 action against the city, alleging deliberate indifference, was properly dismissed:

Dozens of eyewitnesses provided conflicting accounts regarding, among other things, the timing of the officers’ calls for medical assistance, and whether resuscitative efforts undertaken before medical personnel arrived were performed by the officers or whether other inmates took such measures in the face of inaction by the officers. Plaintiffs’ expert affirmation raised triable issues of fact as to the adequacy of the officers’ response and the soundness of defendants’ expert’s opinions. The City’s reliance on governmental immunity is unavailing, since there are triable issues of fact as to whether the death was caused in part by a negligent failure to comply with mandatory rules and regulations of the New York City Department of Corrections (DOC), requiring, among other things, that correction officers respond immediately in a medical emergency, and that officers who are trained and certified in CPR administer CPR where appropriate … .

The court correctly dismissed the § 1983 claim against the City. … There is … no evidence of a “policy or custom” evincing deliberate indifference to the rights of inmates … . “Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action” … . “Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights” … . Luckey v City of New York, 2014 NY Slip Op 05697, 1st Dept 8-7-14

 

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Defamation Action Brought by Judge Against a Reporter Properly Dismissed—Although the Reporter Made Defamatory Statements Which Were Not Privileged, the Judge Failed to Raise a Question of Fact About Malice as a Motivation

In a full-fledged opinion by Justice Saxe, the First Department affirmed the dismissal of a defamation action brought by a judge against a reporter.  The court determined that the reporter had made inaccurate statements which were defamatory and which were not privileged under  the Civil Rights Law.  However, because the judge was a public figure, the New York Times v Sullivan “malice” standard applied and, the court determined, the judge was unable to raise a question of fact about malice as a motivation for the reporting:

Although we agree with Justice Martin that the published columns were susceptible of a defamatory interpretation, were not protected opinion, and were not privileged under Civil Rights Law § 74, that is not the end of the inquiry; Justice Martin had to also clear the demanding hurdle presented by the standard set in New York Times Co. v Sullivan (376 US 254, 279-280 [1964]). Since he is a public figure, he had the burden of showing, with convincing clarity, actual malice — that is, that the author and publisher of the columns acted with reckless disregard for the truth … . “The standard is a subjective one, focusing on the speaker’s state of mind” … . This standard of “convincing clarity” applies even on a motion for summary judgment … .

“[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication” … . “[I]t is essential that the First Amendment protect some erroneous publications as well as true ones” … . Therefore, to prevail, Justice Martin was required to offer a showing tending to establish that Louis ” in fact entertained serious doubts as to the truth of his publication,’ or acted with a high degree of awareness of [its] probable falsity'” … . Martin v Daily News LP, 2014 NY Slip Op 05369, 1st Dept 7-17-14

 

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Statement by Reporter About a Judicial Proceeding Entitled to Absolute Privilege

The Fourth Department determined a reporter’s (Velez-Mitchell;s) statements about a judicial proceeding were entitled to absolute privilege under Civil Rights Law 74.  The report concerned a lawsuit brought by a transgender woman and included reference to a DVD the woman had received from plaintiff Most Holy Family Monastery (MHFM).  The DVD was entitled “Death and the Journey to Hell.” The plaintiff contended the report falsely asserted that the Most Holy Family Monastery advocated putting homosexuals to death:

…[D]efendants are entitled to the absolute privilege set forth in Civil Rights Law § 74 … . The … statement was made in the context of the interview conducted by Velez-Mitchell, which concerned, inter alia, pending judicial proceedings commenced by the woman in California after her personal information had allegedly been misused by the DMV employee. During the interview, the woman and her attorney explained that the woman had obtained a temporary restraining order against the DMV employee based upon that employee’s misuse of her personal information, and that she had thereafter received the package from MHFM. The broadcast of the interview was twice promoted as a transgender woman “suing,” and a caption beneath the woman’s image stated, inter alia, “Transgender Woman Suing DMV.” Velez-Mitchell questioned a former prosecutor regarding the viability of an anticipated lawsuit against the DMV, and the woman’s attorney stated that “[t]he Human Rights Commission filed a complaint” concerning the incident and the “big picture is about privacy and the legal right to have [one’s] privacy protected.”

“When examining a claim of libel, we do not view statements in isolation. Instead, [t]he publication must be considered in its entirety when evaluating the defamatory effect of the words’ ” … . Here, “[r]ealistically considered,” the first statement provided background facts for the woman’s claims in pending and anticipated judicial proceedings, and the broadcast as a whole was a ” substantially accurate’ ” report of the judicial proceedings … . Consequently, the first statement is entitled to the absolute privilege set forth in Civil Rights Law § 74. Dimond v Time Warner Inc, 2014 NY Slip Op 05060, 4th Dept 7-3-14

 

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Hearsay in Medical Records Should Have Been Redacted/Not Relevant to Diagnosis and Not Clearly Attributable to Plaintiff as an Admission

Although the error was deemed harmless, the First Department determined hearsay statements should have been redacted from the plaintiff’s medical records.  The plaintiff alleged the police had pushed him over a fence, causing injury.  The defendants alleged plaintiff jumped.  The medical records included references to the plaintiff’s “jumping.” The jury found for the defendants.  The court explained how hearsay in a medical report should be handled:

Hearsay entries regarding the cause of an injury contained in a medical record come into evidence under the business records exception if they are germane to the treatment or diagnosis of plaintiff’s injuries … . Alternatively, the entry may be admissible as an admission, but only if there is evidence that connects the party to the entry … . The challenged entries were neither germane to treatment or diagnosis, nor were they admissions.

There was simply no evidence supporting defendants’ position that the medical doctors needed to know whether plaintiff jumped or was pushed from the fence in order for doctors to determine what medical testing he needed upon admission to the hospital. No medical expert provided such testimony … . Defendants’ only expert, a biomechanical engineer and accident reconstruction expert, opined that plaintiff’s injuries were consistent with a jump from a height and not a push to a fall. He did not give any opinion on issues relating to treatment or diagnosis. This is not a case where the conclusion is so obvious that no medical testimony is needed to lay the appropriate evidentiary foundation … .

The particular challenged entries cannot be characterized as admissions. Although the Lincoln Medical and Mental Health Center Admission Assessment form has a box checked that “patient” is the source of the information, the particular entry on that record, “he jumped off the fence,” is not clearly a direct statement attributable to or a quote of plaintiff. The Ambulance Call Report form identifies “PO” or the police officer as the source of the information that plaintiff “jumped off a fence.” No other evidence in the record identifies plaintiff as being the source of this information. Nor is there any evidence connecting plaintiff to the 1/21/97 entry in the Progress Record that “s/p fell from a fence after being chased by police officers” or the 1/23/97 entry “fall from 2 storeys [sic]” to make them admissible as admissions by him. These entries should have been redacted from the medical records received in evidence.  Benavides v City of New York 2014 NY Slip Op 01682, 1st Dept 3-18-14

 

“Concerted Action Liability” Causes of Action Dismissed/No Evidence Media Defendants Conspired with the Police to Use Excessive Force During Filmed Execution of Search Warrant

The Second Department affirmed the dismissal of causes of action against media defendants who filmed the execution of a search warrant by the police.  Plaintiff was shot during the incident.  Plaintiff alleged that the media defendants (including Yates and HBO) had conspired with the police to use excessive force to maximize the entertainment value:

A theory of “[c]oncerted action liability rests upon the principle that [a]ll those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit, are equally liable with him [or her]'” … . As stated in our prior decision in this action, the liability of HBO and Yates under a concerted action theory “cannot stem from the mere act of filming the NYPD’s use of excessive force” … . Such liability must be predicated on proof that HBO and Yates “formed a common plan with the NYPD to use excessive force in the execution of the warrant, and that such plan created an unreasonable danger to persons such as the plaintiff and was a proximate cause of her injuries” … .

Here, Yates and HBO established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them by demonstrating that they did not participate, either directly or indirectly, in a common plan or design to commit the allegedly tortious act that caused the plaintiff’s injuries… . Rodriguez v City of New York, 2013 NY Slip Op 08609, 2nd Dept 12-26-13

 

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Most of Police Internal Investigation Report Deemed Immune from Disclosure

In determining that most of a police department’s internal investigation report need not be disclose pursuant to a Freedom of Information Law (FOIL) request, the Second Department wrote:

The Freedom of Information Law (Public Officers Law art. 6; hereinafter FOIL) was enacted “to promote open government and public accountability” and “imposes a broad duty on government to make its records available to the public” … . Under FOIL, government records are presumptively open for public inspection unless they fall within one of the exceptions specified by Public Officers Law § 87(2), which permits an agency to deny access, inter alia, to records which “are specifically exempted from disclosure by state or federal statute” (Public Officers Law § 87[2][a]… ). One such statute exempting records from disclosure is Civil Rights Law § 50-a(1), which provides, in relevant part, that “[a]ll personnel records used to evaluate performance toward continued employment or promotion” of police officers “shall be considered confidential and not subject to inspection or review.” However, “when access to an officer’s personnel records relevant to promotion or continued employment is sought under FOIL, nondisclosure will be limited to the extent reasonably necessary to effectuate the purposes of Civil Rights Law § 50-a to prevent the potential use of information in the records in litigation to degrade, embarrass, harass or impeach the integrity of the officer” … . Matter of Cook v Nassau County Police Dept, 2013 NY Slip Op 06364, 2nd Dept 10-2-13

 

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Uniform Act to Secure Attendance of Witnesses from Without the State in Criminal Cases Allowed Colorado Court to Subpoena a Reporter for Purposes of Testifying About Her Confidential Sources in a Matter Related to the Aurora Movie-Theater Shootings

In a full-fledged opinion by Justice Clark, over a two-justice dissent in an opinion by Justice Saxe, the First Department determined a reporter could be compelled to testify, under Criminal Procedure Law section 640.10, in a Colorado proceeding which sought to identify law enforcement personnel who leaked information to the press.  The relevant facts are laid out in the dissenting opinion.  The petitioner in the case is James Holmes, the accused shooter in the Aurora, Colorado, movie theater massacre. The respondent is a reporter who interviewed two law-enforcement persons about the contents of a package allegedly sent by James Holmes to his treating psychiatrist.  A Colorado court issued a subpoena to the reporter.  Supreme Court enforced the subpoena under the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (CPL 640.10).  Because the reporter has already appeared in Colorado, the controversy is moot.  But the First Department determined the exception to the mootness doctrine should be applied (important issue likely to recur, etc.). The reporter’s testimony about her confidential sources is protected in New York under Civil Rights Law section 79-h (b). But Colorado’s privilege statute is much weaker. The majority determined the privilege issue was irrelevant to the enforcement of the subpoena.  The dissent argued that the reporter would suffer “undue hardship” within the meaning of the statute if she were forced to reveal her confidential sources (because her livelihood depended on witness-confidentiality).  The majority wrote:

Petitioner furnished the court with a certificate issued, pursuant to the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (CPL 640.10), by the Araphoe County District Court Judge, and demonstrated that respondent’s testimony was “material and necessary” …, and that she would not suffer undue hardship because petitioner would pay the costs of her travel and accommodations … . …

The narrow issue before the Supreme Court was whether respondent should be compelled to testify, and privilege and admissibility are irrelevant for this determination … . Respondent is entitled to assert whatever privileges she deems appropriate before the Colorado District Court. Compelling respondent to testify is distinguishable from compelling her to divulge the identity of her sources.  Matter of Holmes v Winter, 2013 NY Slip Op 05666, First Dept 8-20-13

 

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