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Reporter’s Information Subject to Qualified Protection​

A reporter spent four days “autotrekking” with petitioner’s husband a few months before the husband’s death in an “autotrekking” accident. Petitioner subpoenaed the reporter to appear in an action arising from the death of her husband. The First Department ruled the information gathered by the reporter was entitled to qualified protection under the New York Shield Law:

Contrary to petitioner’s contention, all the information she seeks constitutes “unpublished news obtained or prepared by” Coburn, undisputedly a professional journalist, “in the course of gathering or obtaining [the] news” that was ultimately published in the article, and is therefore subject to qualified protection under the New York Shield Law (see Civil Rights Law § 79-h[c]… .

Petitioner failed to make the “clear and specific showing” required to overcome the protection (see Civil Service Law § 79-h[c]). Even assuming that the information she seeks is “highly material and relevant” and “critical or necessary” to the maintenance of her claims, she has not shown that it is unobtainable “from any alternative source” … . Matter of Gilson v Coburn, 2013 NY Slip Op 03177, 1st Dept, 5-2-13

 

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Inmate Should Not Have Been Required to Document His Native American Ancestry In Order to Practice His Religion

In annulling a determination by the Central Office Review Committee (CORC) that the petitioner (an inmate) must document his Native American ancestry before he will be allowed to practice his religion, the Third Department wrote:

It has been recognized that correction officials may impose restrictions on the religious practices of inmates provided that such restrictions are reasonably related to legitimate penological interests … .Respondents candidly concede, and we agree, that CORC failed to articulate or otherwise identify any legitimate penological interest reasonably served by the documentation requirement. Consequently, we conclude that the determinations at issue are arbitrary, capricious and  without a rational basis… .  Matter of Santiago, 514317, 3rd Dept, 4-18-13

 

 

 

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Failure to Allege Negligent Provision of Medical Care in Notice of Claim Required Dismissal of Negligence Cause of Action; Failure to Allege Facts Demonstrating a Custom or Practice of Providing Inadequate Medical Care Required Dismissal of 1983 Causes of Action 

After a trial awarded the plaintiff over $17,000,000, the Second Department reversed determining (1) the negligent provision of medical care cause of action should have been dismissed because it was not included in the notice of claim, and (2) the 1983 causes of action should have been dismissed because they were not adequately pled in the complaint:

Here, the notice of claim failed to set forth any allegations of negligence on the part of the defendants regarding the deprivation of medical treatment to the plaintiff when he was in police custody. Therefore, the Supreme Court should have directed dismissal of so much of the complaint as alleged negligence, due to the plaintiff’s failure to file a proper notice of claim (see General Municipal Law § 50-e[2] … .  * * *

To hold a municipality liable under § 1983 for the conduct of employees below the policymaking level, a plaintiff must show that the violation of his or her constitutional rights resulted from a municipal custom or policy …. Similarly, where claims are asserted against individual municipal employees in their official capacities, there must be proof of a municipal custom or policy in order to permit recovery, since such claims are tantamount to claims against the municipality itself …. Here, the complaint failed to allege any facts from which it could be reasonably inferred that the defendants had a policy or custom of depriving medical treatment to persons in police custody ….  Vargas v City of New York, 2013 NY Slip Op 02391, 2011-02266, 2011-08980, 2011-09609, Index No 33215/07, 2nd Dept, 4-10-13

 

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1983 Action Against Department of Corrections Is Not Brought in the Court of Claims

The Third Department, in a decision by Justice Garry, reversed Supreme Court’s dismissal of a 1983 action against employees of the Department of Corrections and Community Supervision challenging a urinalysis report:

Supreme Court found that it lacked jurisdiction based upon Correction Law § 24, which requires that actions alleging negligence by state correction officers be commenced in the Court of Claims; however, it has been established that this provision may not be applied to bar actions brought pursuant to 42 USC § 1983 … . Carrington v Moore, 513818, 3rd Dept 3-28-13

 

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Criteria for 1983 Action Against Municipality Based On Policy or Custom

In reversing the trial court’s setting aside a verdict in favor of the plaintiff in an action for false arrest, the Second Department laid out the criteria for a 1983 action against a municipality in this context:

… [A]plaintiff may prevail on a cause of action to recover damages pursuant to 42 USC § 1983 against a municipality where the plaintiff proves the existence of “(1) an official policy or custom [on the part of a municipal defendant] that (2) cause[d] the claimant to be subjected to (3) a denial of a constitutional right” … . “For a cause of action pursuant to 42 USC § 1983 to lie against a municipality, the action that is alleged to be unconstitutional must implement[ ]or execute[ ] a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers'” …, or have occurred pursuant to a practice “so permanent and well settled as to constitute a custom or usage’ with the force of law” … .

“A municipal custom or policy can be shown by establishing that an official who is a final policy maker directly committed or commanded the violation of the plaintiff’s rights” … . Liability for a violation of 42 USC § 1983 may be predicated on “a single act, as long as it is the act of an official authorized to decide policy in that area” … .  Bassett v City of Rye, 2013 NY Slip Op 02037, 2011-10149, Index No 20430/05, 2nd Dept 3-27-13

 

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Summary Judgment In Favor of Plaintiff-Company in Trespass Action Against Protesters Affirmed

The Fourth Department affirmed the grant of summary judgment to plaintiff-company in its trespass action against People United for Sustainable Housing (PUSH).  PUSH had staged “demonstrations concerning plaintiff’s use of funding it received to assist low-income customers with heating costs and increasing the energy efficiency of their homes.”  The Court determined the allegations of trespass were subject to the heightened standard of proof under the Civil Rights Law and further determined the heightened standard had been met:

According to [PUSH], this action constituted an impermissible Strategic Lawsuit Against Public Participation (SLAPP action) in violation of Civil Rights Law § 76-a (1), because it hindered defendants’ efforts to challenge the use by plaintiff of the funding in question … . * * *

We … reject plaintiff’s contention that the allegations in the trespass claims against PUSH do not constitute allegations within the meaning of a SLAPP action, inasmuch as they are indeed materially related to PUSH’s challenge to plaintiff’s application to renew its CIP permit. Thus, plaintiff’s action against PUSH was subject to “a heightened standard of proof” to avoid dismissal … . * * *

“The elements of a cause of action sounding in trespass are an intentional entry onto the land of another without justification or permission . . . , or a refusal to leave after permission has been granted but thereafter withdrawn” … . It is well established that trespassing is not a protected First Amendment activity … . National Fuel Gas Distribution Corporation v PUSH Buffalo, et al, 318, CA—12-01219, 4th Dept. 3-22-13

 

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False Arrest, Malicious Prosecution, and 1983 Actions Allowed to Proceed

In reversing the trial court’s grant of summary judgment to the defendants in an action for false arrest, malicious prosecution and violation of 42 USC 1983, the Second Department wrote:

…[I]n opposition to the Allstate defendants’ prima facie showing, the plaintiff raised triable issues of fact as to whether the Allstate defendants affirmatively induced law enforcement officials to act by taking an active part in the arrest and procuring it to be made, or by engaging in active, officious, and undue zeal to the point where the law enforcement officials were not acting of their own volition … . The plaintiff’s submissions were also sufficient to raise triable issues of fact as to whether the Allstate defendants intentionally provided false information to law enforcement officials or withheld material information …, thereby permitting an inference of actual malice … . The plaintiff’s submissions additionally raised triable issues of fact as to whether the Allstate defendants “engaged in a conspiracy with state officials to deprive [plaintiff] of federal rights” … . Accordingly, the Supreme Court should have denied the Allstate defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them. Robles v City of New York, 2013 NY Slip Op 01814, 2011-11017, Index No 27364/07, 2nd Dept. 3-20-13

 

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Elements of Defamation, Invasion of Privacy and Intentional Infliction of Emotional Distress Explained

Plaintiff, an English professor, brought suit for defamation and invasion of privacy based upon two articles in the defendant New York Post and on the websites of two other defendants.  In affirming the trial court’s grant of summary judgment to the defendants, the First Department applied the facts of the case to the proof requirements for defamation (finding the statements were not false or were expressions of opinion), “invasion of privacy” pursuant to the NY Civil Rights Law sections 50 and 51 (involving the use of plaintiff’s image), prima facie tort and intentional infliction of emotional distress.  The decision briefly but clearly articulates the essential elements of these causes of action and the reasons the elements were not demonstrated.  Fleischer v NYP Holdings, Inc., 2013 NY Slip Op 01784, 150164/10, 9557, 1st Dept. 3-19-13

 

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