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PLAINTIFF WAS WORKING ON POWER LINES WHILE SUSPENDED FROM A HELICOPTER WHEN THE HELICOPTER LOST CONTROL AND CRASHED; PLAINTIFF’S LABOR LAW 200, 240 AND 241(6) CAUSES OF ACTION WERE NOT PREEMPTED BY THE FEDERAL AVIATION ACT (FAA) (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Egan, over a two-justice dissent, determined the Federal Aviation Act (FAA) did not preempt New York’s Labor Law protections for workers. Plaintiff was working on power lines and towers while suspended from a helicopter when the helicopter collided with a structure, lost control and crashed. Plaintiff sued the general contractor for failure to provide adequate safety devices. This lawsuit did not include the helicopter company or seek damages for negligent operation of the helicopter (apparently addressed by other lawsuits against different defendants):

Plaintiff’s complaint … asserted claims against defendant as the general contractor on the project alleging that defendant was negligent and violated Labor Law §§ 200, 240 and 241 (6), as well as the Industrial Code (see 12 NYCRR 23-1.7). * * *

… [T]he FAA “contained a saving provision preserving pre-existing statutory and common-law remedies” …, and it continues to authorize “any other remedies provided by law” in addition to the ones created by the FAA … . In other words, the FAA contemplates that state law remedies survive its enactment and may be pursued within its purview, including “state law personal injury suits” … . The question is accordingly not whether the FAA preempts all state law claims that somehow intersect with air safety — its own terms make clear that it does not — but whether the claims arise in the area of air safety and “interfere with federal laws and regulations sufficiently to fall within the scope of the preempted field” … . …

Plaintiff’s claims … arise out of the state’s police power to regulate occupational health and safety issues, not aviation, and defendant points to “nothing in [the FAA or implementing regulations] indicating that Congress meant to affect state regulation of occupational health and safety, or the types of damages that may be recovered” for a violation of those workplace safety standard … . Scaletta v Michels Power, Inc., 2025 NY Slip Op 00258, Third Dept 1-16-25

Practice Point: Consult this decision for a discussion of field and conflict preemption issues in the context of the Federal Aviation Act and New York’s Labor Law protections for workers. Plaintiff was suspended from a helicopter working on power lines when the helicopter lost control and crashed.

 

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THE MAJORITY AFFIRMED WITHOUT DISCUSSION; JUDGE RIVERA IN A DISSENTING OPINION JOINED BY JUDGE WILSON WOULD HAVE REVERSED ON INEFFECTIVE ASSISTANCE GROUNDS (CT APP). ​

The Court of Appeals affirmed defendant’s burglary, assault, criminal contempt and resisting arrest convictions without discussion. Judges Rivera and Wilson would have reversed on ineffective assistance grounds:

From the dissent:

Counsel’s performance here was deficient in several respects and no reasonable defense strategy explains those failings. Before trial, counsel’s boilerplate motion referenced matters not at issue and lacked factual support in several respects, evincing counsel’s failure to properly investigate defendant’s case. Counsel also failed to show defendant video crucial to the prosecution’s case until shortly before trial—and even then, only after defendant complained to the court and the court ordered counsel to provide the video. During trial, counsel’s cross-examination of the victim resulted in admission of defendant’s criminal history, even though the trial court had denied the prosecution’s request to present that same history should defendant testify. Counsel then failed to object to an obviously-ambiguous jury instruction that might have resulted in a conviction on the top count. Despite these glaring errors, the majority concludes that defendant received constitutionally-acceptable representation. This outcome ignores our precedents and reduces the right to effective counsel to a platitude spoken to appease defendants. Our State Constitution’s guarantee of effective assistance ensures the integrity of the process and a fair trial—including for those defendants who appear guilty. Counsel’s many errors fell below that standard. I would therefore reverse and order a new trial. People v Howard, 2025 NY Slip Op 00184, CtApp 1-14-25

Practice Point: Although the majority affirmed the convictions without discussion, the two-judge dissenting opinion described “glaring errors” by defense counsel in detail.

 

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REMOVAL OF THE CHILDREN FROM MOTHER’S CARE WITHOUT NOTICE DEPRIVED MOTHER OF HER RIGHT TO DUE PROCESS; THE EVIDENCE DID NOT SUPPORT REMOVAL OF THE CHILDREN (FIRST DEPT).

The First Department, reversing Family Court, determined the removal of the children from mother’s care without notice violated mother’s due process rights. In addition, the evidence did not support the removal:

… [P]ursuant to a dispositional order, the children were released to their mother’s care with ACS [Commissioner of the Administration for Children’s Services] supervision. ACS moved pursuant to Family Court Act § 1061 to extend the period of supervision. Family Court violated the mother’s due process rights when, on the return date of the motion, it sua sponte removed the children without giving the mother notice or an opportunity to be heard and, at a later hearing, effectively imposed upon the mother the burden of showing that the removal was unwarranted … . There was nothing in the language of the agency’s motion to put the mother on notice that the children might be removed from her care on the return date, and the record demonstrates that the mother was not given a meaningful opportunity to be heard on the issue … . Moreover, the agency maintained that it was in the children’s best interests to remain with the mother, and the children’s attorney supported the agency’s position.

Furthermore, Family Court’s decision to continue the children’s placement in the agency’s care until the next placement hearing was not supported by a sound and substantial basis in the record …  Contrary to the court’s conclusion, neither the initial neglect petition nor the order to show cause alleged that the mother used illicit substances or was impaired while taking care of the children. Moreover, during the 10-month period of supervision in 2023—2024, the mother submitted to at least three random drug screenings and tested negative for all illicit substances. When the mother underwent an evaluation by a credentialed alcohol and substance abuse counselor on February 1, 2024, she was not found to need any drug treatment services. Matter of E.I. (Eboniqua M.), 2025 NY Slip Op 00022, First Dept 1-2-25

Practice Point: Here removal of the children from mother’s care without prior notice to mother violated her due process rights. Removal was not supported by the evidence.

 

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THE COMPLAINT STATED CAUSES OF ACTION PURSUANT TO 18 USC 1983 AGAINST INDIVIDUAL POLICE OFFICERS FOR DEPRIVING PLAINTIFF OF HIS RIGHT TO A FAIR TRIAL AND HIS RIGHT TO BE FREE FROM CONTINUED DETENTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined several 42 USC 1983 causes of action against individual police officers should not have been dismissed. The Second Department noted allegations that individual police officers violated plaintiff’s constitutional rights need not be based upon a municipal policy or custom. Plaintiff alleged the officers fabricated evidence and conspired with the district attorney’s office to deprive him of his right to a fair trial and his right to be free from continued detention:

The plaintiff alleged … that the individual defendants, with knowledge that the plaintiff was not guilty, improperly caused the neup witness to identify the plaintiff as the shooter and thereafter caused him to be prosecuted. … [T]he allegations in the complaint were sufficient to plead the personal involvement of the individual defendants in the deprivation of the plaintiff’s right to a fair trial … . Moreover, the Supreme Court improperly concluded that this cause of action was defective for failing to satisfy the “policy or custom” standard. Since the plaintiff was asserting a cause of action against the individual defendants in their individual capacities for an alleged constitutional violation … he was not required to allege facts satisfying that standard … . * * *

… [T]he complaint sufficiently stated a viable cause of action alleging a violation of the plaintiff’s right to be free from continued detention insofar as asserted against the individual defendants. The complaint alleged that the individual defendants knowingly concealed, among other things, evidence regarding the improper lineup identification, thereby “suppress[ing] evidence that was favorable to the plaintiff during the criminal proceeding” … . …

[U]nder the intra-corporate or intra-enterprise conspiracy doctrine,” and subject to certain exceptions, employees of “a public entity generally cannot conspire with [other] employees or agents” of the same entity, since “all are considered a single entity” … . Here, however, the doctrine is inapplicable because the plaintiff alleged that the individual defendants, members of the New York City Police Department, conspired with employees of a distinct governmental entity, the Queens County District Attorney’s Office … . Pressley v City of New York, 2024 NY Slip Op 06563, Second Dept 12-24-24

Practice Point: Causes of action asserting the violation of constitutional rights by individual police officers, as opposed to by the police department as a municipal entity, need not allege the violations were pursuant to a department policy or custom.

Practice Point: Although a conspiracy to violate constitutional rights cannot be based upon an agreement among police officers in a single department, it can be based upon an agreement among police officers and district attorneys.

 

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PLAINTIFF SUED THE COUNTY SHERIFF SEEKING A DECLARATORY JUDGMENT THAT A LOCAL COURT WHICH ISSUES A SECURING ORDER FOR A NONQUALIFYING OFFENSE VIOLATES THE ACCUSED’S CONSTITUTIONAL RIGHTS; THE FOURTH DEPARTMENT DETERMINED THERE WAS NO JUSTICIABLE CONTROVERY INVOLVING THE SHERIFF WHO IS BOUND TO OBEY A COURT’S SECURING ORDER; THE REAL DISPUTE IS WITH THE COURT WHICH ISSUES THE ORDER IN APPARENT VIOLATION OF A STATUTE (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court and dismissing the declaratory judgment action, determined there was no justiciable controversy. Plaintiff sued the County Sheriff seeking a declaration that “assigning a local court to arraign a criminal defendant with two previous felony convictions violates the constitutional rights of the accused because local courts lack the ability to order release or set bail under those circumstances.” The issue arose because of a conflict among provisions of the Criminal Procedure Law:

… City Court issued a securing order that committed [defendant] to the custody of the Sheriff on the basis of CPL 530.20 (2) (a) (double predicate provision). The double predicate provision states that a city, town, or village court (hereinafter, local court) may not order release on recognizance or bail when the criminal defendant, like plaintiff, has two previous felony convictions. Plaintiff further alleged that the double predicate provision conflicts with CPL 510.10 (4) (qualifying offense provision), which limits the court’s ability to issue a securing order imposing bail or remand to situations in which the criminal defendant stands charged with an enumerated qualifying offense (see also CPL 510.10 [3]). * * *

We conclude that plaintiff’s allegations fail to “demonstrate the existence of a bona fide justiciable controversy” inasmuch as there is no “real dispute between adverse parties, involving substantial legal interests for which a declaration of rights will have some practical effect” … . … “[T]he heart of the dispute is not any action taken by the Sheriff but rather whether the local . . . court must remand a given [criminal] defendant such as [plaintiff] to the custody of the Sheriff.” * * * Plaintiff’s real dispute is with the local court that issues a securing order ostensibly in violation of the qualifying offense provision, not with the Sheriff who is bound to obey the securing order. Where, as here, “there is no genuine dispute between the parties, the courts are precluded, as a matter of law, from issuing a declaratory judgment” … . Parker v Hilton, 2024 NY Slip Op 06456, Fourth Dept 12-20-24

Practice Point: Here the plaintiff’s dispute was not with the Sheriff, who is bound to obey a securing order, but was with the local court that issued the securing order which ostensibly violated a statute and the accused’s constitutional rights. Therefore there was no justiciable controversy between plaintiff and the Sheriff.

 

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THE DENIAL OF DEFENDANT’S REQUEST FOR COUNSEL OF HIS CHOICE, ASSIGNED COUNSEL’S DISPARAGING REMARKS, AND ASSIGNED COUNSEL’S FAILURE TO INFORM DEFENDANT DEPORTATION WAS MANDATORY, AMOUNTED TO A DEPRIVATION OF DEFENDANT’S RIGHT TO COUNSEL; GUILTY PLEA WITHDRAWN AND VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to withdraw and vacate his guilty plea should have been granted. Defendant did not receive effective assistance of counsel:

The People concede that defendant’s right to counsel was violated by the court’s ruling improperly prohibiting defendant from retaining an unpaid attorney who worked at a public defender organization which represented him on a related matter … , and by the conflict of interest between assigned counsel and defendant that arose from counsel’s disparaging statements, in court and in written submissions, about defendant and his possible defense of accidental stabbing.

Defendant was also deprived of effective assistance when his counsel advised him that because of his plea, he will most likely be deported, since it is clear that defendant’s conviction would trigger mandatory deportation … . People v Pan, 2024 NY Slip Op 06166, First Dept 12-10-24

Practice Point: The judge improperly prohibited defendant from obtaining counsel of his choice.

Practice Point: Assigned counsel’s disparaging remarks about defendant created a conflict of interest.

Practice Point: Assigned counsel’s failure to inform defendant deportation was mandatory constituted ineffective assistance.

 

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THE ZONING REGULATION WHICH REQUIRES PAYMENT TO AN “ARTS FUND” OF $100 PER SQUARE FOOT FOR CONVERSION OF “JOINT LIVING-WORK QUARTERS FOR ARTISTS” TO FULLY RESIDENTIAL USE IS AN UNCONSTITUTIONAL TAKING (FIRST DEPT).

The First Department, reversing Supreme Court, found unconstitutional a NYC Zoning Regulation (ZR) which required artists who wish to convert their “joint living-work quarters for artists (JLWQA)” to residential use to pay $100 per square foot to an “Arts Fund.” The fund did not have a sufficient connection with the government’s land-use interest:

The ZR amendment passed by the City, in establishing the Special SoHo-NoHo Mixed Use District (SNX District), provides current JLWQA unit owners a pathway to convert uses but also requires them, if and when they seek conversion, to contribute “$100.00 per square foot of floor area to be converted” to the Arts Fund, with annual increases … . “[T]he payment of such non-refundable contribution shall be a precondition to filing for or issuing of any building permit allowing the conversion [of] a joint living-work quarters for artists to a residence” … .

The Arts Fund fee constitutes a permit condition for which the “two-part test modeled on the unconstitutional conditions doctrine” applies … . Thus, the permit condition “must have an ‘essential nexus’ to the government’s land-use interest,” which “ensures that the government is acting to further its stated purpose” … , and the condition “must have ‘rough proportionality’ to the development’s impact on the land-use interest” … .

In applying the two-part test, we find that petitioners are entitled to a declaration that the Arts Fund fee requirement constitutes a taking without just compensation (US Const Amend V; NY Const art I, § 7[a]). Matter of Coalition for Fairness in Soho & Noho, Inc. v City of New York, 2024 NY Slip Op 06118, First Dept 12-5-24

Practice Point: Here a zoning regulation which required payment of a fee of $100 per square foot to an “Arts Fund” as a precondition for a building permit was deemed an unconstitutional taking.

 

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OFFICIALS OF A NATIVE AMERICAN NATION CAN BE SUED IN NEW YORK STATE COURTS FOR OFF-RESERVATION ACTIONS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connolly, over a partial concurrence and partial dissent, determined the trustees (officials) of a sovereign Native American nation may be sued in New York State courts for their off-reservation actions. Here the defendants constructed billboards within a highway right of way which traversed land owned by the Nation. The opinion addresses an issue of first impression and is too complex and detailed to fairly summarize here:

In March and April 2019, the defendants allegedly had trees cut and removed from within the highway right-of-way, without obtaining a work permit from the DOT, and the DOT allegedly issued two stop work orders to the defendants’ alleged contractors. Thereafter, the defendants allegedly began trenching and placed large equipment, a pile of stones, and support piles within the highway right-of-way, without a work permit from the DOT. The DOT allegedly issued another stop work order and a cease and desist letter to the defendants. The plaintiffs alleged that the defendants ignored the stop work orders and the cease and desist letter. * * *

… [N]otwithstanding sovereign immunity, Native Americans “going beyond reservation boundaries are subject to any generally applicable state law,” “[u]nless federal law provides differently” … . Here, the plaintiffs alleged that the structures are being constructed upon the subject property, over which the State has a permanent easement. The plaintiffs further alleged that the subject property is not aboriginal or sovereign land of the Nation, the Nation owns the subject property in fee simple, and the subject property is not part of the Reservation nor held in trust by the federal government. Thus, according to the plaintiffs, the Trustee defendants have engaged in conduct “beyond reservation boundaries,” and they are subject to generally applicable state laws … . Commissioner of the N.Y. State Dept. of Transp. v Polite, 2024 NY Slip Op 06023, Second Dept 12-4-24

Practice Point: Officials (trustees) of a Native American Nation can be sued in New York State courts for off-reservation actions. Here the trustees constructed billboards on a highway right of way which traversed land owned by the Nation.

 

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THE “MINISTERIAL EXCEPTION” IS GROUNDED IN THE FIRST AMEMDMENT AND MAY RESTRICT A STATE AGENCY’S REVIEW OF EMPLOYMENT DECISIONS MADE BY RELIGIOUS INSTITUTIONS; THE EXCEPTION IS AN AFFIRMATIVE DEFENSE, NOT A JURISDICTIONAL BAR, TO A HOSTILE WORK ENVIRONMENT ACTION UNDER THE NYS HUMAN RIGHTS LAW (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, reversing the New York State Division of Human Rights (DHR) and the Appellate Division, determined the so-called “ministerial exception” was not a jurisdictional bar to the Nigerian priest’s, Ibhawa’s, hostile work environment claim under the NYS Human Rights Law. The “ministerial exception” is grounded in the First Amendment and may restrict state interference with employment decisions made by religious institutions.. The Court of Appeals clarified that the ministerial exception is an affirmative defense in an employment discrimination action against a religious institution, not a jurisdictional bar to bringing the case:

Ibhawa filed an employment complaint with the New York State Division of Human Rights (DHR) in November 2020, claiming that the Diocese had engaged in discriminatory employment practices in violation of the New York Human Rights Law (see Executive Law art 15). Ibhawa alleged that he had experienced racial discrimination at the Diocese, including from an employee who directed a racial slur at him and a parishioner who made xenophobic remarks to him. He further alleged that the Diocesan officials to whom he reported the incidents declined to investigate them, questioned his decision to terminate the employee who had used a racial slur, and made “highly insulting and offensive” remarks about “foreign priests.” At a subsequent meeting, two Diocesan officials offered to buy Ibhawa a plane ticket to Nigeria and told him that the “Bishop could remove [his] faculties.” Shortly afterwards, the Diocese informed Ibhawa that his employment had been terminated and his priestly faculties removed, which meant that that he could not apply for a position as a priest in the Diocese. The Diocese eventually hired a white priest to replace him. Based on these assertions, Ibhawa alleged claims of hostile work environment and unlawful termination on the basis of race and national origin. He sought, among other remedies, compensatory and punitive damages. * * *

DHR’s order dismissing Ibhawa’s hostile work environment claim was affected by an error of law. After noting the parties’ agreement that Ibhawa was “a priest serving as the pastor (Parish Administrator) of a church,” DHR found that his complaint “comes under the ministerial exception (relative to the first amendment of the U.S. Constitution).” On that basis, DHR concluded that it lacked jurisdiction over Ibhawa’s claims. This determination was contrary to the U.S. Supreme Court’s express holding that the “exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar” … . Matter of Ibhawa v New York State Div. of Human Rights, 2024 NY Slip Op 05872, CtApp 11-26-24

Practice Point: The “ministerial exception” is grounded in the First Amendment and may restrict a state agency’s review of employment decisions made by religious institutions. The exception is an affirmative defense, not a jurisdictional bar, to a hostile work environment action brought by a priest against his employer.

 

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THERE WAS NO PROOF THE WAIVER OF INDICTMENT WAS SIGNED IN OPEN COURT IN THE PRESENCE OF COUNSEL; GUILTY PLEA VACATED AND SUPERIOR COURT INFORMATION DISMISSED (THIRD DEPT).

The Third Department, vacating the guilty plea and dismissing the superior court information, determined the record did not demonstrate the defendant signed the waiver of appeal in open court in the presence of counsel:

… [T]he plea minutes are silent as to when the undated waiver was executed by defendant, and during the colloquy County Court referred to defendant as having “signed” the waiver in the past tense … . Neither the waiver nor the plea colloquy confirms that defendant signed the written waiver in the presence of counsel. Further, although County Court indicated in the undated order approving the waiver that it was generally satisfied that the requirements of CPL 195.10 and 195.20 had been met, nothing in the order explicitly confirms “that the waiver was signed in open court” in the presence of counsel . Thus, … the record does not reflect that defendant’s waiver of indictment passes constitutional and statutory muster, and it follows that defendant’s guilty plea must be vacated and the underlying SCI dismissed … . People v Trapani, 2024 NY Slip Op 05846, Third Dept 11-21-24

Practice Point: When a defendant waives his right to an indictment and agrees to plead to a superior court information, the record must reflect the waiver was made in open court and in the presence of counsel. Absent proof of those statutory and constitutional requirements the waiver is invalid.

Similar issue and result in People v Rupp, 2024 NY Slip Op 05845, Third Dept 11-21-24.

 

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