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“Case Management Fee” Imposed Upon Property Owners Who Do Not Correct a Code Violation Within One Year Is an Unconstitutional Penalty Which Requires Due Process Protections

The Fourth Department determined a so-called “case management fee” (CMF) authorized by City of Rochester Municipal Code 90-21 is an unconstitutional penalty imposed without adequate due process.  The code provisions allows the assessment of $100 against a property owner who fails to correct a code violation within one year:

Although “[t]he exceedingly strong presumption of constitutionality applies . . . to ordinances of municipalities[,] . . . [that] presumption is rebuttable” …, and we conclude that petitioners have rebutted the presumption of constitutionality.

A determination whether the CMF is a fee or a fine imposed as a penalty is critical to our analysis because “[p]rocedural due process rights do not apply to legislation of general applicability,” and thus the imposition of fees such as licensing fees are “not subject to attack on grounds of procedural due process. Fines [that are imposed as a penalty], however, can implicate procedural due process rights” … . * * *

Having concluded that the CMF is a fine imposed as a penalty on the property owner, we must determine whether the ordinance provides property owners with due process of law. As the Court of Appeals wrote in Morgenthau v Citisource, Inc. (68 NY2d 211), “[w]e have long recognized that due process is a flexible constitutional concept calling for such procedural protections as a particular situation may demand' . . . [,] and in determining whether [f]ederal due process standards have been met, we look to the three distinct factors that form the balancing test enunciated by the Supreme Court in Mathews v Eldridge (424 US 319, 335): First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail' ” (id. at 221).

While we agree with the court that the private interest at stake, i.e., $100, “is relatively insubstantial,” we conclude that there is a significant risk of erroneous deprivation of that interest through the procedures established by the ordinance. * * *

Although ” [d]ue process does not, of course, require that the defendant in every civil case actually have a hearing on the merits' ” …, we conclude that due process requires some type of hearing at which the City should be required to establish that property owners did not abate the violation within the one-year period. Matter of D'Alessandro v Kirkmire, 2015 NY Slip Op 01018, 4th Dept 2-6-15


In Proceedings Seeking the Reduction of Tax Assessments, Court Should Not Have Ordered the Inspection of the Interior of the Homes—The Assessor Did Not Demonstrate Interior Inspections Were Necessary for the Defense and Did Not Demonstrate the Need for the Inspections Outweighed the Homeowners’ Fourth Amendment Privacy Rights

The Fourth Department determined Supreme Court should not have ordered inspections of the interior of homes in proceedings where homeowners challenged the tax assessments of their properties:

“Because discovery tends to prolong a case, and is therefore inconsistent with the summary nature of a special proceeding, discovery is granted only where it is demonstrated that there is need for such relief” … . Here, in order for “respondents to establish their entitlement to conduct . . . interior inspection[s] of the petitioner[s'] home[s] for purposes of appraisal, in the absence of the petitioner[s'] consent, . . . respondents bore the burden of demonstrating that [each] particular inspection [was] reasonable' ” …, and ” that interior inspections were necessary to prepare their defense' ” … . We agree with petitioners that respondents failed to make the required showing that interior inspections were reasonable and necessary to prepare their defense … . * * *

In addition to establishing that their request for interior inspections was reasonable and necessary to prepare their defense, respondents were also required to show that their interest in conducting them outweighed petitioners' Fourth Amendment privacy rights … . In determining whether respondents made such a showing, the court was required to “balanc[e] respondents' need for interior inspections [of the homes] against the invasion of petitioners' privacy interests that such inspections would entail” … . Upon our review of the record, we conclude that respondents failed to establish that their interest in interior inspections outweighed petitioners' Fourth Amendment privacy rights … . Matter of Aylward v Assessor, City of Buffalo…, 2015 NY Slip Op 01065, 4th Dept 2-6-15


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In an Employment Discrimination Case, Plaintiff Is a Member of a Protected Class By Virtue of His Wife’s Religion

The Second Department, in a full-fledged opinion by Justice Leventhal, over a dissent, determined plaintiff had raised a question of fact whether he was the subject of employment discrimination in violation of the Executive Law (State Human Rights Law).  Plaintiff’s wife is Jewish and plaintiff is not. Plaintiff’s co-workers are alleged to have made anti-Semitic remarks and plaintiff alleged his firing was a manifestation of discrimination against members of the Jewish faith.  The question of first impression before the court was whether plaintiff is a member of a protected class by virtue of his wife’s religion.  The Second Department found that he is:

To establish a prima facie case of discrimination under the State Human Rights Law, a plaintiff who has been terminated from employment must demonstrate (1) that he or she is a member of the class protected by the statute, (2) that he or she was actively or constructively discharged, (3) that he or she was qualified to hold the position from which he or she was terminated, and (4) that the discharge occurred under circumstances giving rise to an inference of discrimination … . * * *

The defendants assert that there is no authority to support a claim of discrimination based upon the religious belief of a spouse under the State Human Rights Law. While there is no authority addressing this issue under the State Human Rights Law, several federal courts have construed Title VII to protect individuals “who are the victims of discriminatory animus towards third persons with whom the individuals associate” … . * * *

While the plaintiffs’ allegations call to mind the infamous Nuremberg Laws enacted in 1935, which stripped German Jews of their civil rights and citizenship and prohibited persons of “German or related blood” from marrying or having sexual relations with German Jews, we are aware that the defendants’ alleged conduct is not akin to Town-initiated discrimination. State Human Rights Law claims under Executive Law § 296 are “analytically identical to claims brought under Title VII” …, and thus we see no reason to construe the State statute more restrictively than the federal statute. Accordingly, the plaintiff sufficiently demonstrated his membership in a protected class by virtue of the defendants’ alleged discriminatory conduct stemming from his marriage to a Jewish person. Indeed, we note that discrimination against an individual based on his or her association with a member of a protected class also constitutes an infringement upon that individual’s First Amendment right to intimate association, which receives protection as a fundamental element of personal liberty (see Roberts v United States Jaycees, 468 US 609, 617-618 [“choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme”]; Matusick v Erie County Water Auth., 757 F3d 31 [2d Cir] [where plaintiff, a white male, alleged that he was discriminated against and terminated from his employment because of his engagement to an African-American female, the United States Court of Appeals for the Second Circuit recognized, for the first time, that a constitutionally protected right to intimate association based upon marriage engagement could be the predicate for a claim that the defendants, while acting under color of state law, deprived the plaintiff of his First and Fourteenth Amendment rights in violation of 42 USC § 1983]). Chiara v Town of New Castle, 2015 NY Slip Op 00326, 2nd Dept 1-14-15

 

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Seizure of Claimant’s Computers Pursuant to a Warrant Did Not Give Rise to Conversion, Negligent Misrepresentation and Constitutional Tort Causes of Action—Elements of Those Causes of Action Explained

The Fourth Department reversed the Court of Claims and dismissed causes of action for conversion and negligent misrepresentation stemming from the seizure of claimant’s computers pursuant to a judicial warrant.  The court noted that the seizure pursuant to the authority of the warrant precluded the conversion cause of action and the absence of privity between the claimant and the investigators who said the computers would be promptly returned precluded the negligent representation cause of action. Alternate ways to seek return of the computers (an application to County Court and an Article 78 proceeding if the application were denied) precluded the constitutional tort cause of action:

An actionable “conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession” … . Here, a search warrant specifically authorized law enforcement to “search for and seize” six categories of items, including “[a]ll computers and computer storage media and related peripherals, electronic or computer data.” Claimants have never challenged the validity of the search warrant. Moreover, the unchallenged warrant placed no time limit on the retention of the items seized, and the authorization to “seize” the computers was not terminated until County Court ordered the property returned following Boerman’s guilty plea. We therefore conclude that defendant’s exercise of control over the computers did not constitute conversion inasmuch as it had the proper authority to exercise such control … .

The tort of “negligent misrepresentation requires [a claimant] to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information’ ” … . We agree with defendant that, as a matter of law, there can be no “privity-like relationship” between an investigator and the target of his or her investigation … . Indeed, the relationship between investigator and target is the opposite of a “special position of confidence and trust” in which one party might justifiably rely upon the ” unique or specialized expertise’ ” of the other party … . Thus, as defendant correctly contends, the negligent misrepresentation claim fails as a matter of law … .

Even assuming, arguendo, that the initial seizure or continued detention of claimants’ computers violated the Search and Seizure Clause of the State Constitution (art I, § 12), we conclude that “no . . . claim [for constitutional tort] will lie where the claimant has an adequate remedy in an alternate forum” … . Here, claimants could have raised their constitutional arguments in an application to County Court seeking the return of their computers … or, if such motion were denied, in a CPLR article 78 proceeding seeking relief in the nature of mandamus or prohibition … . LM Bis Assoc Inc v State of New York, 2015 NY Slip Op 00007, 4th Dept 1-2-15

 

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Because the Habeas Corpus Petition Sought the Transfer of Kiko, A Chimpanzee, to Another Facility, Rather than Immediate Release, the Petition Must Be Denied, Regardless of Whether Kiko is Deemed a Person for Purposes of the Writ

The Fourth Department determined that a habeas corpus petition seeking the transfer of a chimpanzee, Kiko, to a facility with better conditions could not be granted, even if Kiko is deemed a person, because the petition did not seek Kiko’s immediate release:

Regardless of whether we agree with petitioner’s claim that Kiko is a person within the statutory and common-law definition of the writ, ” habeas corpus relief nonetheless is unavailable as [that] claim[], even if meritorious, would not entitle [Kiko] to immediate release’ ” … . It is well settled that a habeas corpus proceeding must be dismissed where the subject of the petition is not entitled to immediate release from custody … . Here, petitioner does not seek Kiko’s immediate release, nor does petitioner allege that Kiko’s continued detention is unlawful. Rather, petitioner seeks to have Kiko placed in a different facility that petitioner deems more appropriate. Matter of Nonhuman Rights Project Inc v Presti, 2015 NY Slip Op 00085, 4th Dept 1-2-15

 

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Regulation Prohibiting/Restricting Smoking in New York Parks Properly Promulgated by Office of Parks, Recreation and Historic Preservation—“Boreali” Criteria Explained and Applied to the Facts in Some Depth

Reversing Supreme Court, the Third Department, in a full-fledged opinion by Justice Peters, determined that a regulation prohibiting/restricting smoking in New York parks was properly promulgated by the Office of Parks, Recreation and Historic Preservation (OPRHP).  Petitioner, an organization promoting the interests of smokers, argued the agency did not have the authority to regulate smoking in parks absent legislation on the issue and, therefore, the promulgation of the rule violated the principle of separation of powers.  The court explained the “Boreali” criteria under which the regulation was analyzed and applied the criteria to the facts (the interesting, detailed, fact-specific analysis is not summarized here):

Respondents, the Office of Parks, Recreation and Historic Preservation (hereinafter OPRHP) and its Commissioner, are empowered by statute to “[o]perate and maintain . . . historic sites and objects, parks, parkways and recreational facilities”(PRHPL 3.09 [2]) and to “[p]rovide for the health, safety and welfare of the public using facilities under its jurisdiction” (PRHPL 3.09 [5]). In February 2013, pursuant to this statutory authority, OPRHP adopted a rule establishing smoke-free areas in certain limited outdoor locations under its jurisdiction (see 9 NYCRR 386.1). Such regulation, among other things, also prohibits smoking in each state park located in New York City, with limited exceptions (see 9 NYCRR 386.1 [a] [2])… . OPRHP announced that this rule was needed in order to allow “patrons to enjoy the outdoors, breathe fresh air, walk, swim, exercise and experience [s]tate [p]arks' amenities and programs without being exposed to secondhand tobacco smoke and tobacco litter” (NY Reg Dec. 5, 2012 at 11). * * *

“The cornerstone of administrative law is derived from the principle that the Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation” (…see NY Const, art III, § 1). As the Court of Appeals has recently reaffirmed, when determining whether an administrative agency has violated the constitutional principle of separation of powers, we must consider the “coalescing circumstances” set forth in Boreali v Axelrod (71 NY2d 1, 11 [1987]), namely, (1) whether the respondents improperly engaged in the balancing of their stated goal with competing social concerns and acted “solely on [their] own ideas of sound public policy”; (2) whether the respondents engaged in the “interstitial” rulemaking typical of administrative agencies or instead “wrote on a clean slate, creating [their] own comprehensive set of rules without benefit of legislative guidance”; (3) whether the challenged regulation concerns “an area in which the Legislature ha[s] repeatedly tried — and failed — to reach agreement in the face of substantial public debate and vigorous lobbying by a variety of interested factions”; and (4) whether the respondents overstepped their bounds because the development of the regulation did not require the exercise of expertise or technical competence by the administrative agency (id. at 12-14 …). In determining whether “the difficult-to-define line between administrative rule-making and legislative policy-making has been transgressed,” this Court should view these circumstances “in combination” (Boreali v Axelrod, 71 NY2d at 11), while ever mindful that “'it is the province of the people's elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends'” … .

Applying the four Boreali considerations, we find no usurpation of the Legislature's prerogative by respondents' promulgation of 9 NYCRR 386.1. Matter of NYC C.L.A.S.H. Inc v New York State Off of Parks, Recreation & Historic Preserv, 2014 NY Slip Op 09085, 3rd Dept 12-31-14


 

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Out-of-Court Statement Leading to Discovery of the Weapon Did Not Violate Defendant’s Right of Confrontation Because There Was No “Direct Implication” the Statement Involved the Defendant’s Possession of the Weapon

The Second Department determined that the right of confrontation issue was preserved for appeal because, although not raised directly, the issue was specifically determined by Supreme Court.  The court further determined that the testimony which alluded to an out-of-court statement leading to the discovery of a blood-covered knife did not violate defendant’s right of confrontation:

Contrary to the People’s contention, the Confrontation Clause (see US Const, 6th amend) issue is preserved for appellate review. While the issue was not “plainly present[ed]” to the Supreme Court …, the court’s ruling on the defendant’s objection demonstrates that the court specifically considered and resolved this issue … .

The defendant’s constitutional right to be confronted with the witnesses against him prohibits the “admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify and the defendant ha[s] had a prior opportunity for cross-examination” … . Here, however, Sergeant Tribble’s testimony and the subsequent testimony relating to the discovery of the weapon did not violate the Confrontation Clause, since there was no direct implication that the nontestifying witness told the police that the defendant possessed the knife, disposed of it, or tried to conceal it … . People v Richberg, 2014 NY Slip Op 08863, 2nd Dept 12-17-14

 

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Code Provision Prohibiting the Placement of Signs on Public Property Is a Constitutional, Content-Neutral Restriction of Speech Which Was Severable from the Rest of the Code Chapter—There Was, Therefore, No Need to Assess the Constitutionality of the Entire Chapter (As the Appellate Division Had)

Reversing the Appellate Division, the Court of Appeals determined that section 57A-11 of the Town Code, which prohibited the placement of signs on public property, could be severed from the rest of chapter and was a valid, content-neutral regulation of speech.  The Appellate Division had held that section 57A-11, which was valid standing on its own, could not be severed from the rest of the chapter and that the chapter as a whole was unconstitutional because it favored commercial over noncommercial speech. The defendant here had pled guilty to violating section 57A-11:

“In a statutory context, our test for severability has been whether the Legislature would have wished the statute to be enforced with the invalid part exscinded, or rejected altogether” … . In Superfund Coalition, for example, the unconstitutional portion was at the “core” of the statute, and “interwoven inextricably through the entire regulatory scheme” (id.). By contrast, section 57A-11 deals only with signs posted on public property, a discrete regulatory topic and regime. This is reinforced by section 57A-11 (A), which explains the provision’s purpose and focuses entirely on the unique problems posed by signs on public right-of-ways. In light of section 57A-11’s independent legislative purpose, this provision can be severed from any unconstitutional portions of chapter 57A. We therefore need not and do not consider the constitutionality of any part of chapter 57A except section 57A-11. * * *

Section 57A-11 of the Town Code * * * imposes a content- neutral ban on all signs on public property, and applies to both commercial and non-commercial signs without consideration of their content. Further, it directly serves the Town’s valid interests in traffic safety and aesthetics, as expressly articulated in section 57A-11 (A). People v On Sight Mobile Opticians, 2014 NY Slip Op 08761, CtApp 12-16-14

 

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Admission Into Evidence of Nontestifying Codefendant’s Grand Jury Testimony Violated Defendant’s Sixth Amendment Right of Confrontation

The First Department reversed defendant’s conviction, finding that the admission into evidence of the codefendant’s grand jury testimony violated the rule announced in Bruton v US, 391 US 123:

Under Bruton v United States, “a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant” … . Since the rule only applies where the codefendant’s statement was “incriminating on its face, and [not where it] became so only when linked with evidence introduced later at trial” …, the question before us is whether the codefendant’s grand jury testimony was facially incriminating as to defendant, rather than incriminating only when linked to other evidence. * * *

Although the codefendant’s grand jury testimony was intended as an innocent explanation of the events surrounding the alleged robbery, and admitted no wrongdoing, nevertheless it was “facially incriminating” as to defendant within the meaning of Bruton.

The codefendant’s narrative placed defendant with the codefendant throughout the relevant events and, specifically referring to defendant approximately 40 times, described defendant’s conduct. Among other things, the statement recounted that, after defendant’s return to the codefendant’s car following an absence to “get food,” the alleged robbery victim (an undercover officer) appeared at the car window, asked where the “stuff” was, and dropped prerecorded buy money (the property allegedly stolen in the charged robbery) into the car. This narrative suffices to create an inference that defendant, while outside the codefendant’s vehicle, had purported to set up a deal for a sale of contraband that was to culminate in the vehicle, but did not fulfill the deal once he entered the vehicle.  People v Johnson, 2014 NY Slip Op 08765, 1st Dept 12-16-14

 

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Convictions Based Upon an Unconstitutional Statute Must Be Vacated

The Second Department noted that when a statute upon which defendant's conviction is based is declared unconstitutional the conviction must be vacated:

Where a substantive criminal statute has been held unconstitutional, there is no alternative but to give the decision retroactive effect for the declaration of unconstitutionality is a statement that the defendant has committed no crime” … . The Court of Appeals has held that Penal Law § 240.30(1), as written at the time of the defendant's conviction, was unconstitutionally vague and overbroad under both the state and federal constitutions … . Accordingly, the defendant's convictions of attempted aggravated harassment in the second degree pursuant to Penal Law §§ 240.30(1)(a) and (1)(b) must be vacated. People v Edrees, 2014 NY Slip Op 08660, 2nd Dept 12-10-14

 

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