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Complaint Pursuant to the “Whistleblower” Statute Need Not Identify the Particular Statute or Regulation Alleged to Have Been Violated by the Employer

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined that a complaint brought under the “whistleblower”  provision of the Labor Law (section 740) need not identify the particular statute or regulation alleged to have been violated by the employer:

Labor Law § 740 (2), commonly referred to as the “whistleblower statute,” provides, in relevant part, that “[a]n employer shall not take any retaliatory personnel action against an employee because such employee . . . discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation” that either “creates and presents a substantial and specific danger to the public health or safety, or . . . constitutes health care fraud” (Labor Law § 740 [2] [a]). The narrow issue on this appeal is whether a complaint asserting a claim under that provision must identify the specific “law, rule or regulation” allegedly violated by the employer. We conclude that there is no such requirement. * * *

To be sure, in order to recover under a Labor Law § 740 theory, the plaintiff has the burden of proving that an actual violation occurred, as opposed to merely establishing that the plaintiff possessed a reasonable belief that a violation occurred … . And, the violation must be of the kind that “creates a substantial and specific danger to the public health or safety” … . However, for pleading purposes, the complaint need not specify the actual law, rule or regulation violated, although it must identify the particular activities, policies or practices in which the employer allegedly engaged, so that the complaint provides the employer with notice of the alleged complained-of conduct. Webb-Weber v Community Action for Human Servs Inc, 2014 NY Slip Op 03428, CtApp 5-13-14

 

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Aggravated Harassment Statute Unconstitutionally Vague and Overbroad/Criminal Impersonation Statute Encompasses Injury to Reputation

In a full-fledged opinion by Judge Abdus-Salaam, over a partial dissent, the Court of Appeals found the aggravated harassment statute unconstitutionally vague and overbroad, and determined the “injury” contemplated by the criminal impersonation (second degree) statute encompassed injury to reputation.  The defendant's father is a “Dead Sea Scrolls” scholar.  The defendant engaged in an email campaign in which he created emails which purported to be from other “Dead Sea Scrolls” scholars and which had the effect of promoting his father's positions.  The defendant was convicted of criminal impersonation, aggravated harassment, identity theft, forgery and unauthorized use of a computer.  Ultimately the Court of Appeals affirmed convictions for nine counts of criminal impersonation and the forgery counts.  With respect to harassment and criminal impersonation, the court wrote:

A person is guilty [of criminal impersonation in the second degree] when he or she “impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another” (Penal Law § 190.25).  * * *

…[W]e conclude that injury to reputation is within the “injury” contemplated by Penal Law § 190.25. Many people, particularly with a career in academia, as relevant to this case, value their reputations at least as much as their property,[FN2] and we believe the Legislature intended that the scope of the statute be broad enough [*7]to capture acts intended to cause injury to reputation.

Accordingly, a person may be found guilty of criminal impersonation in the second degree if he or she impersonates another with the intent to cause a tangible, pecuniary injury to another, or the intent to interfere with governmental operations … . In addition, a person who impersonates someone with the intent to harm the reputation of another may be found guilty of this crime.

Penal Law § 240.30(1)(a) provides that “[a] person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she . . . communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm.” We agree with defendant that this statute is unconstitutionally vague and overbroad … .

In People v Dietze (75 NY2d 47 [1989]), this Court struck down a similar harassment statute, former Penal Law § 240.25, which prohibited the use of abusive or obscene language with the intent to harass, annoy or alarm another person. We determined that the statute [*8]was unconstitutional under both the State and Federal Constitutions, noting that “any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence” (id. at 52).

The reasoning applied in Dietze applies equally to our analysis of Penal Law § 240.30(1)(a). The statute criminalizes, in broad strokes, any communication that has the intent to annoy. Like the harassment statute at issue in Dietze, “no fair reading” of this statute's “unqualified terms supports or even suggests the constitutionally necessary limitations on its scope” … . People v Golb, 2014 NY Slip Op 03426, CtApp 5-13-14

 

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Courts Charged with Supervising Defendants Found Not Responsible by Reason of Mental Disease or Defect Have the Power To Impose a Condition Allowing the Office of Mental Health to Seek Judicial Approval for a Mandatory Psychiatric Evaluation When the Defendant Does Not Comply with Release Conditions and Refuses to Be Examined Voluntarily

The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined that a court charged with supervising a defendant who has been found not responsible by reason of mental disease or defect can include in “an order of conditions a provision allowing the [NYS] Office of Mental Health (OMH) to seek judicial approval of a mandatory psychiatric evaluation in a secure facility when a defendant found not responsible by reason of mental disease or defect fails to comply with the conditions of his release and refuses to undergo voluntary examination.”  The appellate division had held that Criminal Procedure Law section 330.20 prohibited the inclusion of such a requirement in an order of conditions:

Section 330.20 mandates an order of conditions whenever a track-one defendant moves from secure to nonsecure confinement, or is no longer institutionalized (Criminal Procedure Law § 330.20 [11], [12]), and allows the court to fashion these orders in whatever way, in its judgment, most effectively protects the public while serving the defendant's interest in remaining in the least restrictive environment possible. “[T]he order of conditions is the vehicle by which the . . . court effectuates its continuing supervisory authority over” a defendant found not responsible for a crime by reason of mental disease or defect … . And while the Commissioner and the district attorney may appeal from an order of conditions, the defendant may not (see Criminal Procedure Law § 330.20 [21]). This insulates the supervising court from a defendant's attempt to argue that a condition, thought by the judge to be a necessary prophylactic measure, excessively restricts his freedom.

Accordingly, section 330.20 authorizes orders that, along with a prescribed treatment plan, include “any other condition which the court determines to be reasonably necessary or appropriate” (Criminal Procedure Law § 330.20 [1] [o] [emphases added]). * * *

The effective-evaluation provision enables OMH to evaluate a track-one defendant who does not comply with court-ordered conditions and refuses to be examined voluntarily. Track-one defendants are released into the community with the express understanding that they may endanger the public and themselves if their mental health declines. Indeed, reported cases illustrate the perils posed when such defendants do not follow the regime designed by mental-health professionals and imposed by courts to safeguard their stability and functioning in the community … . The dangers of noncompliance are exacerbated when a track-one defendant also refuses to submit to a psychiatric evaluation thereby denying vital information to the Commissioner, whom section 330.20 (12) makes responsible for ensuring compliance with orders of conditions issued with release orders. Matter of Allen B v Sprout, 2014 NY Slip Op 03427, CtApp 5-13-14

 

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School District Owed No Duty of Care to Student Struck by Car Before School Bus Stopped to Pick Her Up/Bus Driver Had Missed Student’s Stop, Had Turned Around, and Was Driving Back Toward the Student When She Was Struck

The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined that a school district did not owe any duty to a student who was struck by a car before the bus stopped to pick her up.  The bus driver mistakenly drove past the stop where the student was waiting.  The driver turned the bus around.  As the driver was heading back toward the student's stop, the student was struck by a car. The Court of Appeals essentially agreed with the dissenting appellate division justices, whose position was described as follows:

The dissenting Justices would have reversed Supreme Court's order and granted the District's motion in its entirety. …[T]hey observed the “well settled” rule that the District's duty flowed from physical custody and control; that at the time of the accident the District did not have physical custody of the child, who thus remained outside its orbit of authority; and that the District therefore “owed no duty to the child in this situation, and, absent duty, there can be no liability” … .

The dissenting Justices rejected plaintiff's contention, endorsed by the majority, that the District “assumed a duty to the child as a consequence of the potentially hazardous situation allegedly created by the school bus driver in turning the bus around after missing the bus stop” … . Williams v Weatherstone, 2014 NY Slip Op 03425, CtApp 5-13-14

 

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Despite the Absence of a Motion to Dismiss on Forum Non Conveniens Grounds, the Court Properly Dismssed the Action on that Ground (After Briefing by the Parties)/The Fact that the Underlying Transaction Was to Be In American Dollars Was Not Enough to Justify Bringing the Action (Involving Foreign Banks and Parties) in New York State

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined Supreme Court properly dismissed the action on “forum non conveniens” grounds, even though no motion to dismiss on that ground had been made.  Although Supreme Court raised the issue, the court asked to parties to brief it.  In addition, the Court of Appeals noted that, although the underlying dispute involved millions of dollars, the fact that American dollars were involved was not enough to hold the case in New York State.  The dispute was between a bank in Dubai and a partnership (AHAB) in Saudi Arabia.  The third-party defendant, Al-Sanea, was a citizen of Saudi Arabia, and another third-party defendant, Awal Bank BSC, was headquartered in Bahrain:

We held in VSL Corp. v Dunes Hotels & Casinos, Inc. (70 NY2d 948 [1988]) that it was error for the Appellate Division to dismiss a complaint sua sponte on forum non conveniens grounds, adding that such a dismissal may occur “only upon the motion of a party” (id. at 949). Here, though no party formally moved to dismiss plaintiff’s complaint because of the inconvenience of the forum, the issue was briefed and argued at Supreme Court. We hold that VSL did not bar the court from dismissing the complaint under these circumstances. We also hold that, on this record, Supreme Court was correct as a matter of law in dismissing both the complaint and the third-party complaint. *  *  *

While the idea of dismissing the main complaint on forum non conveniens grounds was first mentioned by the Supreme Court Justice, he gave the parties a full opportunity to address the issue — indeed, he asked them to do so. Al-Sanea argued in favor of dismissing the complaint on forum non conveniens grounds, though he did not serve motion papers seeking that relief. We see no reason to read CPLR 327(a) as prohibiting a forum non conveniens dismissal where only the formality of a document labeled “notice of motion” was lacking, and where AHAB, the only party opposed to dismissal, neither objected to nor was prejudiced by the omission of that formality. * * *

Our State’s interest in the integrity of its banks is indeed compelling, but it is not significantly threatened every time one foreign national, effecting what is alleged to be a fraudulent transaction, moves dollars through a bank in New York. Indeed, the parties here agree that, as a practical matter, any dollar transaction comparable in size to the one now at issue must go through New York … . That does not mean that every major fraud case in the world in which dollars are involved belongs in the New York courts. New York’s interest in its banking system “is not a trump to be played whenever a party to such a transaction seeks to use our courts for a lawsuit with little or no apparent contact with New York” … . Mashreqbank PSC v Ahmed Hamad Al Gosaib i & Bros Co, 2014 NY Slip Op 02381, CtApp 4-8-14

 

Criteria for Submission of Lesser Included Offense Explained

The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined the trial court properly refused to submit the lesser included offence of reckless manslaughter to the jury.  The victim died of a deep, forceful stab wound.  The pathologist testified the wound could not have been inflicted by waving a knife around, which is what the defendant claimed he did.  In explaining the criteria for submission of a lesser included offense, the Court of Appeals wrote:

A party who seeks to have a lesser included crime charged to the jury must satisfy a two-pronged inquiry. First, the crime must be a lesser included offense within the meaning of Criminal Procedure Law § 1.20 (37). Here, defendant asked the trial judge to charge second-degree manslaughter, which is a lesser included crime of second-degree intentional murder … . Second, the party making the request for a charge-down “must then show that there is a reasonable view of the evidence in the particular case that would support a finding that [the defendant] committed the lesser included offense, but not the greater” (…Criminal Procedure Law § 300.50 [1]…). In assessing whether there is a “reasonable view of the evidence,” the proof must be looked at “in the light most favorable to the defendant” …, which requires awareness of “the jury’s right to accept some part of the evidence presented by either side and reject other parts of that proof” … . We have never, however, “countenance[d] selective dissection of the integrated testimony of a single witness as to whom credibility, or incredibility, could only be a constant factor” … .

A “reasonable view of the evidence” does not mean, as defendant insists, that a trial court must charge reckless manslaughter as a lesser included offense of second-degree murder unless the record “completely excludes the possibility that the defendant acted recklessly.” People v Rivera, 2014 NY Slip Op 02379, CtApp 4-8-14

 

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Gabriela A’s Actions Constituted Disobedience Under PINS Criteria, Not Criminal Actions (Resisting Arrest/Obstruction of Governmental Administration) Under Juvenile Delinquency Criteria

The Court of Appeals, in a full-fledged opinion by Judge Read, over a dissent, determined, under the facts,  a “Person In Need of Supervision (PINS)” should not have been adjudicated a juvenile delinquent.  Gabriela A., a PINS who had left the non-secure facility where she was placed, apparently resisted to some extent when police officers came to return her to the facility. After the fact-finding hearing, Gabriela A was placed in a secure facility pending disposition. Family Court ultimately determined Gabriela A was a juvenile delinquent finding Gabriele A had committed acts, which, if committed by an adult, would constitute the criminal offenses of obstruction of governmental administration and resisting arrest. The Court of Appeals did not rule out the procedure used by Family Court, which essentially converted a PINS proceeding to a Juvenile delinquency proceeding. Rather, the court determined, under the facts, Gabriela A’s behavior was properly characterized as PINS behavior, not criminal behavior:

The crime of resisting arrest requires that a person intentionally prevent “an authorized arrest” (Penal Law § 205.30). The restraint of a PINS pursuant to Family Court Act § 718, however, is not the same as a criminal arrest … . A PINS proceeding is fundamentally civil in nature. … Thus, a PINS who resists being restrained or transported back to a placement facility is not resisting arrest within the meaning of Penal Law § 205.30.

Next, a person is guilty of the misdemeanor of obstructing governmental administration when he or she “intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference” (Penal Law § 195.05). Probation officers qualify as “public servants” within the broad definition supplied in the Penal Law (see Penal Law § 10.00 [15]), and Gabriela A. admitted that she wanted to “make it hard” for Officer Flores and the other probation officers to handcuff and take her to the non-secure facility. On the other hand, the legislature has defined a PINS to include someone who is “habitually disobedient and beyond the lawful control of . . . lawful authority” (Family Court Act § 712 [a]). Thus, a PINS’s disobedience and obstruction of “lawful authority” is not necessarily the same as an adult’s. Since Family Court Act §§ 720 (1) and (2) forbid placement of a PINS in a secure facility, the legislature surely did not intend the type of behavior that might cause a child to be designated a PINS in the first place to become the basis for secure detention … .  Matter of Gabriela A, 2014 NY Slip Op 02376, CtApp, 4-8-14

 

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No Private Right of Action for Unequal Pay Under Civil Service Law Section 115

The Court of Appeals, over a dissent, determined Civil Service Law section 115 does not create a private right of action concerning unequal pay for the same work.  Rather, section 115 merely states a policy, unenforceable by the courts:

Civil Service Law Article VIII, “Classification and Compensation of Employees”, contains three titles, the first of which (Title A), entitled, “Classification and Allocation of Positions”, begins with section 115, “Policy of the state,” which provides:”In order to attract unusual merit and ability to the service of the state of New York, to stimulate higher efficiency among the personnel, to provide skilled leadership in administrative departments, to reward merit and to insure to the people and the taxpayers of the state of New York the highest return in services for the necessary costs of government, it is hereby declared to be the policy of the state to provide equal pay for equal work, and regular increases in pay in proper proportion to increase of ability, increase of output and increase of equality of work demonstrated in service.”

Courts of this State have routinely interpreted section 115 and its predecessor, the nearly identically-worded former Civil Service Law § 37, as merely enunciating a policy, conferring no jurisdiction on a court to enforce what is simply that – a statement of policy… .   * * *

It is clear that Section 115 is a preamble to Civil Service Law article VIII, and no private right of action flows from it. Article 14 of the Civil Service Law (the Taylor Law) provides the mechanism for represented employees to challenge alleged wage disparities between classifications. Matter of Subway Surface Supervisors Assn v New York City Tr Auth, 2014 NY Slip Op 02380, CtApp 4-8-14

 

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A Union Is Not an Entity Separate from Its Members—A Union, Therefore, Can Not Be Sued By a Member Unless Every Member Participated In the Action Which Gave Rise to the Suit

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, over a dissent, upheld the so-called “Martin” rule (Martin v Curran, 303 NY 276 [1951]) which prohibits a suit against an unincorporated association, here a union, unless the suit can be maintained against every member of the association.  The executive board of the union decided against taking plaintiff’s grievance to arbitration. Because only the executive board participated in the decision, plaintiff’s suit against the union was prohibited by statute:

In a 4-3 decision authored by Judge Desmond, this Court held in Martin that a voluntary unincorporated association “is neither a partnership nor a corporation. It is not an artificial person, and has no existence independent of its members” (303 NY at 280). The Court determined that “for better or worse, wisely or otherwise, the Legislature has limited . . . suits against association officers, whether for breaches of agreements or for tortious wrongs, to cases where the individual liability of every single member can be alleged and proven” (id. at 282). Although there were policy considerations that might suggest a different result, the Martin Court was “under the command of a plainly stated, plainly applicable statute, uniformly held by this court, for many years, to require pleading and proof of authorization or ratification by all the members of the group” (id. at 280). That statute, General Associations Law § 13, is entitled “Action or proceeding against unincorporated association” and provides:”An action or special proceeding may be maintained, against the president or treasurer of such an association, to recover any property, or upon any cause of action, for or upon which the plaintiff may maintain such an action or special proceeding, against all the associates, by reason of their interest or ownership, or claim of ownership therein, either jointly or in common, or their liability therefor, either jointly or severally. Any partnership, or other company of persons, which has a president or treasurer, is deemed an association within the meaning of this section.”The Martin Court also noted that McCabe v Longfellow (133 NY 89 [1892]), the leading case on the right to maintain an action against an unincorporated association, held that a plaintiff could not maintain an action against the officer of an unincorporated association “unless the debt which he seeks to recover is one upon which he could maintain an action against all the associates by reason of their liability therefor” (303 NY at 281…), and that there had been a “line of consistent decisions to that effect” since McCabe. Ultimately, the Martin Court concluded that, because a labor union is a voluntary unincorporated association, the plaintiff was required to plead and prove that each member of the union authorized or ratified the alleged wrongful conduct.  Palladino v CNY Centro Inc, 2014 NY Slip Po 02378, CtApp 4-8-14

 

Notice Requirements for a Nonparty Subpoena Pursuant to CPLR 3101(a)(4) Explained/Criteria for a Motion to Quash and Opposition to the Motion to Quash Explained

In a full-fledged opinion by Judge Pigott, the Court of Appeals determined the nature of the notice requirements for subpoenaing a nonparty pursuant to CPLR 3101 (a)(4), and the criteria for determining a motion to quash the subpoena:

We conclude that the subpoenaing party must first sufficiently state the “circumstances or reasons” underlying the subpoena (either on the face of the subpoena itself or in a notice accompanying it), and the witness, in moving to quash, must establish either that the discovery sought is “utterly irrelevant” to the action or that the “futility of the process to uncover anything legitimate is inevitable or obvious.” Should the witness meet this burden, the subpoenaing party must then establish that the discovery sought is “material and necessary” to the prosecution or defense of an action, i.e., that it is relevant. Matter of Kapon v Koch, 2014 NY Slip Op 02327, CtApp 4-3-14

 

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