Constitutional Law – Page 39 – New York Appellate Digest

ALTHOUGH THE DISPUTE BETWEEN PLAINTIFF AND A RABBI INVOLVED THE PURCHASE OF TORAH BOOKS AND THE JEWISH CUSTOM OF SHIDUCH, THE MATTER COULD BE DECIDED BASED ON NEUTRAL PRINCIPLES OF LAW IN THE STATE COURTS (SECOND DEPT).

The Second Department determined a dispute between plaintiff and a rabbi involved neutral principles of law and therefore could be adjudicated in the state court system:

The plaintiff commenced this action to recover damages for breach of contract and fraud, alleging that she made several payments to the defendants totaling $214,000 for the purchase of three torah books, and for the defendants to find her a husband pursuant to the Jewish custom of “shiduch.” The plaintiff alleged that the defendants made false statements to induce her to make the payments, and had not performed pursuant to their agreement. …

“The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs” … . However, “[c]ivil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution” … .

Here, the defendants failed to demonstrate that the plaintiff’s causes of action cannot be determined solely upon the application of neutral principles of law, without reference to religious principles … . Lifschitz v Sharabi, 2017 NY Slip Op 06530, 2nd Dept 9-20-17

CIVIL PROCEDURE (ALTHOUGH THE DISPUTE BETWEEN PLAINTIFF AND A RABBI INVOLVED THE PURCHASE OF TORAH BOOKS AND THE JEWISH CUSTOM OF SHIDUCH, THE MATTER COULD BE DECIDED BASED ON NEUTRAL PRINCIPLES OF LAW IN THE STATE COURTS (SECOND DEPT))/CONSTITUTIONAL LAW (RELIGION, ALTHOUGH THE DISPUTE BETWEEN PLAINTIFF AND A RABBI INVOLVED THE PURCHASE OF TORAH BOOKS AND THE JEWISH CUSTOM OF SHIDUCH, THE MATTER COULD BE DECIDED BASED ON NEUTRAL PRINCIPLES OF LAW IN THE STATE COURTS (SECOND DEPT))/RELIGION (ALTHOUGH THE DISPUTE BETWEEN PLAINTIFF AND A RABBI INVOLVED THE PURCHASE OF TORAH BOOKS AND THE JEWISH CUSTOM OF SHIDUCH, THE MATTER COULD BE DECIDED BASED ON NEUTRAL PRINCIPLES OF LAW IN THE STATE COURTS (SECOND DEPT))

September 20, 2017

STATUTES WHICH CRIMINALIZE ASSISTED SUICIDE ARE CONSTITUTIONAL (CT APP).

The Court of Appeals, in a per curiam opinion with three extensive concurring opinions, determined the statutes criminalizing assisted suicide are constitutional in that they do not violate the due process or equal protection clauses.

Plaintiffs ask us to declare a constitutional right to “aid-in-dying,” which they define (and we refer to herein) as the right of a mentally competent and terminally ill person to obtain a prescription for a lethal dosage of drugs from a physician, to be taken at some point to cause death. Although New York has long recognized a competent adult’s right to forgo life-saving medical care, we reject plaintiffs’ argument that an individual has a fundamental constitutional right to aid-in-dying as they define it. We also reject plaintiffs’ assertion that the State’s prohibition on assisted suicide is not rationally related to legitimate state interests .. . . * * *

Our State’s equal protection guarantees are coextensive with the rights protected under the federal Equal Protection Clause … . In Vacco v Quill, the United States Supreme Court held that New York State’s laws banning assisted suicide do not unconstitutionally distinguish between individuals (521 US 793, 797 [1997]). As the Court explained, “[e]veryone, regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide. Generally, laws that apply evenhandedly to all unquestionably comply with equal protection” … . The Supreme Court has not retreated from that conclusion, and we see no reason to hold otherwise. * * *

… [T]he State pursues a legitimate purpose in guarding against the risks of mistake and abuse. The State may rationally seek to prevent the distribution of prescriptions for lethal dosages of drugs that could, upon fulfillment, be deliberately or accidentally misused. The State also has a significant interest in preserving life and preventing suicide, a serious public health problem … . As summarized by the Supreme Court, the State’s interests in prohibiting assisted suicide include: “prohibiting intentional killing and preserving life; preventing suicide; maintaining physicians’ role as their patients’ healers; protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide towards euthanasia” … . These legitimate and important State interests further “satisfy the constitutional requirement that a legislative classification bear a rational relation to some legitimate end” … . Myers v Schneiderman, 2017 NY Slip Op 06412, CtApp 9-7-17

CONSTITUTIONAL LAW (ASSISTED SUICIDE, STATUTES WHICH CRIMINALIZE ASSISTED SUICIDE ARE CONSTITUTIONAL (CT APP)/SUICIDE (CONSTITUTIONAL LAW, ASSISTED SUICIDE, STATUTES WHICH CRIMINALIZE ASSISTED SUICIDE ARE CONSTITUTIONAL (CT APP)/ASSISTED SUICIDE, STATUTES WHICH CRIMINALIZE ASSISTED SUICIDE ARE CONSTITUTIONAL (CT APP)/CRIMINAL LAW (ASSISTED SUICIDE, STATUTES WHICH CRIMINALIZE ASSISTED SUICIDE ARE CONSTITUTIONAL (CT APP)

September 7, 2017

Constitutional Law, Family Law, Religion

RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT).

The Second Department, in a full-fledged per curiam opinion, determined that a change in circumstances warranted a modification of the stipulation of settlement of a divorce action. The opinion is too detailed to fairly summarize here. At issue was the extent of the religion-related requirements of the stipulation of settlement. Father objected to the lifestyle changes associated with mother’s open acknowledgment that she is gay and the presence of O, a transgender man, in the home. The court held that the religion-based restrictions placed upon mother’s lifestyle, stemming from Supreme Court’s finding that the religious aspects of the stipulation were paramount, violated her constitutional rights. Rather than the religious concerns, the analysis must focus on the best interests of the children. To that end, the Second Department determined certain aspects of the stipulation concerning the father’s desire to raise and educate the children in the Hasidic tradition were in the children’s best interests:

… [T]he Supreme Court improperly directed that enforcement of the parties’ stipulation of settlement required the mother to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy during any period in which she has physical custody of the children and at any appearance at the children’s schools. Although the court accepted the father’s argument that the religious upbringing clause “forb[ids] [the mother from] living a secular way of life in front of the children or while at their schools,” the plain language of the parties’ agreement was “to give the children a Hasidic upbringing” … . The parties’ agreement does not require the mother to practice any type of religion, to dress in any particular way, or to hide her views or identity from the children. Nor may the courts compel any person to adopt any particular religious lifestyle … . * * *

Contrary to the mother’s contention, the weight of the evidence demonstrates that it is in the children’s best interests to continue to permit the father to exercise final decision-making authority over the children’s education and to continue to permit him to require the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy while they are in his custody, or in the custody of a school that requires adherence to such practices. Weisberger v Weisberger, 2017 NY Slip Op 06212, Second Dept 8-16-17

FAMILY LAW (RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT))/CUSTODY (FAMILY LAW, RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT))/CONSTITUTIONAL LAW (RELIGION, FAMILY LAW, RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT))/RELIGION (FAMILY LAW, CUSTODY, CONSTITUTIONAL LAW, RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT))

August 16, 2017

Civil Procedure, Civil Rights Law, Constitutional Law

SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT.

The First Department, reversing Supreme Court, determined the petition seeking pre-action disclosure by respondent of the identities of persons who allegedly violated a confidentiality agreement should not have been granted. Respondent provides information about debt-distressed companies to a small audience at high prices. The First Department concluded that respondent operated a news service and the pre-action disclosure was precluded by the Civil Rights Law (Shield Law) which protects sources of news stories:

… [R]espondent established that its editorial staff is solely responsible for deciding what to report on and that it does not accept compensation for writing about specific topics or permit its subscribers to dictate the content of its reporting. Other courts have found the extent of a publication’s independence and editorial control to be important in determining whether to apply the Shield Law … . We concur.

Extending protection to respondent under the Shield Law is consistent with New York’s “long tradition, with roots dating back to the colonial era, of providing the utmost protection of freedom of the press” – protection that has been recognized as “the strongest in the nation” … . To condition coverage on a fact-intensive inquiry analyzing a publication’s number of subscribers, subscription fees, and the extent to which it allows further dissemination of information is unworkable and would create substantial prospective uncertainty, leading to a potential “chilling” effect. Matter of Murray Energy Corp. v Reorg Research, Inc., 2017 NY Slip Op 05688, 1st Dept 7-13-17

CIVIL RIGHTS LAW (SHIELD LAW) (SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT)/CONSTITUTIONAL LAW (FREEDOM OF THE PRESS, SHIELD LAW, (SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT)/SHIELD LAW (CIVIL RIGHTS LAW, SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT)/FREEDOM OF THE PRESS (CIVIL RIGHTS LAW, SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT)/CIVIL PROCEDURE (PRE-ACTION DISCLOSURE, SHIELD LAW PROTECTS RESPONDENT FROM PRE-ACTION DISCLOSURE OF THE IDENTITIES OF THE SOURCES OF PUBLISHED INFORMATION, RESPONDENT PROVIDES INFORMATION ABOUT DEBT-DISTRESSED COMPANIES TO A SMALL GROUP OF SUBSCRIBERS WHO SIGN A CONFIDENTIALITY AGREEMENT 1ST DEPT)

July 13, 2017

Constitutional Law, Vehicle and Traffic Law

MOTOR VEHICLES REGULATION WHICH ALLOWS A LIFETIME DRIVING BAN TO BE IMPOSED UPON DRIVERS WITH MULTIPLE DWI CONVICTIONS IS NOT VOID FOR VAGUENESS.

The Fourth Department determined the regulation which allows the commissioner of motor vehicles to impose a lifetime driver’s license revocation for persons with multiple driving while intoxicated convictions was not unconstitutionally vague:

… [T]he regulation does not give respondent “unfettered discretion” to deny an application. Section 136.5 formalized the manner in which the Commissioner would exercise her discretion by “ensur[ing] that her discretion is exercised consistently and uniformly, such that similarly-situated applicants are treated equally” … . Additionally, the regulation puts the public on notice of respondent’s general policy with respect to relicensing a person whose driver’s license has been revoked for multiple alcohol- or drug-related transgressions … . In petitioner’s case, he faces a lifetime ban because he has at least five such convictions or incidents, as defined in the regulation … . Nevertheless, the Commissioner reserved the discretion to deviate from her general policy in “unusual, extenuating and compelling circumstances” … . That exception ensures that respondent has the flexibility to grant an application for relicensing where extraordinary circumstances render the application of the general policy inappropriate or unfair … . Thus, reading the language of the challenged exception within the context of the regulation as a whole, we conclude that 15 NYCRR 136.5 (d) is not unconstitutionally vague. Matter of Gurnsey v Sampson, 2017 NY Slip Op 05350, 4th Dept 6-30-17

June 30, 2017

Constitutional Law, Criminal Law

NEW YORK’S PERSISTENT FELONY OFFENDER SENTENCING SCHEME IS CONSTITUTIONAL, IT DOES NOT INVOLVE PROOF OF A FACT OTHER THAN A PRIOR FELONY CONVICTION.

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reaffirmed its prior holdings finding New York’s persistent felony offender sentencing scheme constitutional:

The Sixth and Fourteenth Amendments guarantee criminal defendants in state courts “the right to a speedy and public trial, by an impartial jury.” To satisfy that right, the People must prove each element of a crime beyond a reasonable doubt. Among those elements is any fact — other than one admitted by the defendant or involving the mere fact of a prior felony conviction … — that has the effect of increasing the prescribed range of penalties to which a defendant is exposed … . …

… [W]e have held that the [persistent felony offender] statute … exposes defendants to an enhanced sentencing range based only on the existence of two prior felony convictions … . As we have consistently explained, the existence of those prior convictions — each the result of either a guilty plea or a jury verdict — is the “sole determinant of whether a defendant is subject to recidivist sentencing as a persistent felony offender” … . Only after the existence of those prior convictions is established and the maximum permissible sentence raised does Supreme Court have “the discretion to choose the appropriate sentence within a sentencing range prescribed by statute” … .

“The court’s opinion is, of course, subject to appellate review, as is any exercise of discretion. The Appellate Division, in its own discretion, may conclude that a persistent felony offender sentence is too harsh or otherwise improvident” and reduce it in the interest of justice to a sentence within the statutory range fixed by the legislature for the crime of conviction, without regard to the persistent felony offender enhancement … . “In this way, the Appellate Division can and should mitigate inappropriately severe applications of the statute” … .

In other words, the statute mandates a two-part process: in step one, the court adjudicates the defendant a persistent felony offender if the necessary and sufficient fact of the two prior convictions is proved beyond a reasonable doubt, thereby exposing him to the sentencing range applicable to such offenders; in step two, it evaluates what sentence is warranted and sets forth an explanation of its opinion on that question for the record … . People v Prindle, 2017 NY Slip Op 05267, CtApp 6-29-17

June 29, 2017

Constitutional Law, Education-School Law

LAWSUIT ALLEGING THE FAILURE TO PROVIDE SOUND BASIC EDUCATION CAN PROCEED, BUT ONLY WITH RESPECT TO SCHOOL DISTRICTS IN NEW YORK CITY AND SYRACUSE.

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined a lawsuit alleging school districts’ failure to provide the sound basic education guaranteed by the state constitution could proceed, but only with respect to school districts in New York City and Syracuse. The attempt to state causes of action statewide was rejected. The complaint must specifically allege the failure district by district. A second lawsuit, alleging failure to properly fund the schools in New York City, brought by different plaintiffs [Aristy-Farer], was dismissed in its entirety:

The NYSER [New Yorkers for Students’ Educational Rights] plaintiffs have sufficiently alleged deficient inputs and outputs with respect to New York City and, although in less detail, Syracuse, that give defendants adequate notice of what a potential remedy could require of them. In that regard, the NYSER complaint alleges deficient inputs (a lack of qualified teachers and principals, low levels of support staff, outdated curricula, unsuccessful English as a Second Language programs, overly large class sizes, lack of basic materials such as textbooks and chalk, a reduction in after-school and summer programs, and inadequate and unclean buildings and facilities) with respect to Syracuse and New York City, with some degree of specificity. The complaint further alleges deficient outputs with respect to those school districts (poor standardized test proficiency, high failure and drop-out rates, poor English proficiency, and inability to meet basic requirements to gain admission to gain admission to City or State colleges because their high schools do not offer basic course requirements).

The complaint also alleges a causal link between inadequate State funding and the failure of those two school districts to provide a sound basic education. … [G]oing forward, plaintiffs here will need to adduce evidence at trial proving, on the basis of current data, that the State has breached its constitutional obligation to provide a sound basic education to students in public schools. Should plaintiffs be successful, it will be up to the State to craft an appropriate response, subject to judicial review, because the courts have “neither the authority, nor the ability, nor the will, to micromanage education financing” … . Aristy-Farer v State of New York, 2017 NY Slip Op 05175, CtApp 6-27-17

June 27, 2017

Civil Procedure, Constitutional Law

ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION.

The Second Department, in a full-fledged opinion by Justice Cohen, determined the attorney general properly subpoenaed documents relevant to whether the non-profit Evergreen was practicing medicine without a license, but the subpoena had to be tailored to protect the First Amendment rights of Evergreen personnel. Evergreen counsels women in an effort to convince them not to terminate their pregnancies:

There is no question that the Attorney General’s investigation is of the utmost importance to protecting the health and safety of women. However, it is equally important that such investigation be carried out with respect and sensitivity to the constitutional rights of those involved. While the subpoena seeks documents that generally bear a reasonable relation to the subject matter of the Attorney General’s investigation, the demands are not narrowly tailored to require production of only those documents directly related to Evergreen’s alleged unauthorized practice of medicine. Thus, we limit in scope the demands set forth in the subpoena to require the disclosure of only those documents that are substantially related to the Attorney General’s legitimate need to gather evidence to determine whether Evergreen has engaged in the unauthorized practice of medicine and which do not unnecessarily intrude on Evergreen’s First Amendment right to freedom of association. Matter of Evergreen Assn., Inc. v Schneiderman, 2017 NY Slip Op 05086, 2nd Dept 6-21-17

CIVIL PROCEDURE (SUBPOENAS, FREEDOM OF ASSOCIATION, ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION)/CONSTITUTIONAL LAW (SUBPOENAS, FREEDOM OF ASSOCIATION, ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION)/ABORTION (SUBPOENAS, FREEDOM OF ASSOCIATION, ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION)/SUBPOENAS (FREEDOM OF ASSOCIATION, ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION)/FREEDOM OF ASSOCIATION (SUBPOENAS, ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION)

June 21, 2017

Constitutional Law, Zoning

NYC ZONING ORDINANCES CONCERNING ADULT BOOKSTORES AND CLUBS ARE CONSTITUTIONAL AND ENFORCEABLE.

The Court of Appeals, reversing the appellate division, in a full-fledged opinion by Judge Fahey, determined New York City’s zoning ordinances concerning adult bookstores and clubs were constitutional and, therefore, enforceable:

Viewed in the proper light, the evidence and the factual findings of the lower courts support only one conclusion: that the City met its burden of showing continued focus on sexually explicit activities and materials by the adult bookstores and adult eating and drinking establishments.

The Appellate Division found that all but one of the adult bookstores had peep booths for viewing adult films, with an average of about 17 booths per store. Peep booths, by design, obviously promote sexual activities. The Appellate Division further found that all the bookstores used signage, displays, and layouts to promote sexually focused adult materials and activities. In addition, as the trial court found, many of the adult bookstores sold sex toys, adult novelties, and the like in the nonadult sections of the stores. This evidence showed that most of the adult bookstores predominantly emphasized the promotion of sexual materials and activities. * * *

As to the adult eating and drinking establishments, the Appellate Division found that, in all the clubs, “topless dancing takes place at all times daily for approximately 16 to 18 hours a day” and also that lap dances, a quintessentially sexual activity, were offered by dancers “in both public and private areas of the club” … . This evidence, without more, adequately supported the conclusion that the topless clubs retained a predominant sexual focus. For the People Theatres of N.Y. Inc. v City of New York, 2017 NY Slip Op 04385, CtApp 6-6-17

ZONING (ADULT BOOKSTORES AND CLUBS, NYC ZONING ORDINANCES CONCERNING ADULT BOOKSTORES AND CLUBS ARE CONSTITUTIONAL AND ENFORCEABLE)/ADULT BOOKSTORES AND CLUBS (ZONING, NYC ZONING ORDINANCES CONCERNING ADULT BOOKSTORES AND CLUBS ARE CONSTITUTIONAL AND ENFORCEABLE)/CONSTITUTIONAL LAW (ZONING, ADULT BOOKSTORES AND CLUBS, NYC ZONING ORDINANCES CONCERNING ADULT BOOKSTORES AND CLUBS ARE CONSTITUTIONAL AND ENFORCEABLE)

June 6, 2017

Constitutional Law, Landlord-Tenant, Municipal Law, Nuisance, Public Nuisance

NUISANCE LAW COULD LEAD TO EVICTION FOR REPORTING CRIMES TO THE POLICE, THE REACH OF THE LAW VIOLATED TENANTS’ FIRST AMENDMENT RIGHTS AND WAS THEREFORE UNENFORCEABLE AGAINST THE LANDLORD.

The Third Department, in a full-fledged opinion by Justice Garry, determined a village nuisance law was facially unconstitutional and could not be enforced against the owner of several properties which rented out single rooms. Apparently, criminal activity, including domestic abuse, at these properties was a concern for the village. The local village nuisance law assigned points for certain conditions or incidents at the properties. Points were assessed even when police were called to the properties by crime victims. Once a certain number of points are accumulated, the village can take certain enumerated actions against the property owner, including ordering the eviction of tenants. The reach of the nuisance statute therefore encroached on the tenant’s first amendment right to report crimes to the police (to petition the government for redress of grievances):

The Nuisance Law’s provisions pertaining to remedies demonstrate that the loss of a tenant’s home may result directly from the designation of a property as a public nuisance. As previously noted, the Nuisance Law expressly permits owners to include the eviction of tenants in the required plans to abate public nuisances — again, with no exception for tenants who may have caused points to be assessed against a property by summoning police because they were victimized by criminal activity, or who otherwise exercised their constitutionally-protected right to request police assistance. Further, as the relief permitted by article II of the Nuisance Law includes the property’s temporary closure, all tenants and occupants of a property where illegal activity occurs — not just those who actually commit a violation — are at risk of losing their homes upon a declaration that the property is a public nuisance. The plain language of the law therefore tends to discourage tenants from seeking help from police. As the amici curiae assert, this discouragement may have a particularly severe impact upon victims of domestic violence … . If a tenant who has an order of protection against an individual because of prior domestic violence calls police for assistance in enforcing the order, points may be assessed against the property. Further, if a tenant summons police because he or she has been the victim of a crime of domestic violence involving assault or one of the other offenses worth 12 points, the Nuisance Law automatically deems the property to be a public nuisance, placing the tenant at risk of losing his or her home solely because of this victimization. Board of Trustees of The Vil. of Groton v Pirro, 2017 NY Slip Op 04938, 3rd Dept 6-5-17

MUNICIPAL LAW (NUISANCE LAW, LANDLORD-TENANT, CONSTITUTIONAL LAW, NUISANCE LAW COULD LEAD TO EVICTION FOR REPORTING CRIMES TO THE POLICE, THE REACH OF THE LAW VIOLATED TENANTS’ FIRST AMENDMENT RIGHTS AND WAS THEREFORE UNENFORCEABLE AGAINST THE LANDLORD)/CONSTITUTIONAL LAW (MUNICIPAL LAW, LANDLORD-TENANT, NUISANCE LAW COULD LEAD TO EVICTION FOR REPORTING CRIMES TO THE POLICE, THE REACH OF THE LAW VIOLATED TENANTS’ FIRST AMENDMENT RIGHTS AND WAS THEREFORE UNENFORCEABLE AGAINST THE LANDLORD)/LANDLORD-TENANT (MUNICIPAL LAW, CONSTITUTIONAL LAW, NUISANCE LAW COULD LEAD TO EVICTION FOR REPORTING CRIMES TO THE POLICE, THE REACH OF THE LAW VIOLATED TENANTS’ FIRST AMENDMENT RIGHTS AND WAS THEREFORE UNENFORCEABLE AGAINST THE LANDLORD)/NUISANCE LAW (MUNICIPAL LAW, CONSTITUTIONAL LAW, NUISANCE LAW COULD LEAD TO EVICTION FOR REPORTING CRIMES TO THE POLICE, THE REACH OF THE LAW VIOLATED TENANTS’ FIRST AMENDMENT RIGHTS AND WAS THEREFORE UNENFORCEABLE AGAINST THE LANDLORD)

June 5, 2017