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Physician Can Be Removed from Medicaid Program Irrespective of Action Taken by Bureau of Professional Medical Conduct

In a full-fledged opinion by Judge Read, with two concurring judges, the Court of Appeals determined that the Office of Medicaid Inspector General (OMIG) is authorized to remove a physician from New York’s Medicaid program based on a consent order between the physician and the Bureau of Professional Medical Conduct (BPMC) regardless of whether BPMC chooses to suspend the physician:

In this litigation, Supreme Court annulled OMIG’s determination to terminate petitioner-physician’s participation in the Medicaid program on the basis of a BPMC consent order, and directed his reinstatement.  In the consent order, petitioner-physician pleaded no contest to charges of professional misconduct and agreed to 36 months’ probation.  Upon OMIG’s appeal, the Appellate Division affirmed, holding that it was arbitrary and capricious for the agency to bar petitioner-physician from treating Medicaid patients when BPMC permitted him to continue to practice; and that OMIG was required to conduct an independent investigation before excluding a physician from Medicaid on the basis of a BPMC consent order … .  We subsequently granted OMIG permission to appeal (19 NY3d 813 [2012]).

We disagree with the Appellate Division’s rationale, but affirm because OMIG’s determination was arbitrary and capricious for another reason.  Specifically, OMIG did not explain why the BPMC consent order in this case caused it to exercise its discretion pursuant to 18 NYCRR 515.7 (e) to exclude petitioner-physician from the Medicaid program. * * *

When resolving charges of professional misconduct with BPMC, physicians and their attorneys should be mindful that a settlement with BPMC does not bind OMIG, as petitioner-physician discovered in this case.  Matter of Koch, DO v Sheehan…, 153, CtApp 10-22-13

 

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Accomplice Testimony Corroboration Insufficient Under Law Read to Jury

Even though the evidence of corroboration of accomplice testimony was sufficient under People v Reome, 15 NY3d 188 [2010], the Court of Appeals held it was not sufficient under the stricter criteria of People v Hudson, 51 NY2d 233 [1980] which Reome overruled. Because the jury was read the Hudson criteria, that criteria applied and the evidence of corroboration was not sufficient to support conviction:

Under the Hudson standard, the corroborating evidence was insufficient.  The evidence that was “independent” of the accomplice testimony in the Hudson sense proved, at most, that defendant had driven a minivan that was the same color as a car that was used to commit some of the crimes charged.  This by itself did not tend “to connect the defendant with the commission” of the crimes (CPL 60.22 [1]).  People v Rodriguez, 169, CtApp 10-17-13

 

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Emergency Doctrine Applied—Statements Made to Police and Overheard by Police Not Suppressible

In a full-fledged opinion by Judge Graffeo, the Court of Appeals affirmed the denial of motions to suppress certain statements made by the defendant to the police and to a friend in the presence of the police under the emergency doctrine. [The concurring judge felt the emergency was over when defendant spoke to his friend and his prior request for counsel rendered those statements suppressible. The majority held that the conversation with the friend was not police interrogation because there was no police involvement and the conversation was not a ploy by the police to elicit information from the defendant.] When the police encountered the defendant his clothes had wet blood on them and blood was found in defendant’s vehicle. The emergency doctrine applied because the police were justified in questioning the defendant to determine if someone was injured and needed help:

As a general rule, a person who is in custody cannot be questioned without first receiving Miranda warnings or after the right to counsel attaches … .  There are exceptions to these principles, one of which is referred to as the “emergency doctrine” … . It recognizes that the Constitution “is not a barrier to a police officer seeking to help someone in immediate danger” …, thereby excusing or justifying otherwise impermissible police conduct that is an objectively reasonable response to an apparently exigent situation … .  We have explained that the exception is comprised of three elements: (1) the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property and this belief must be grounded in empirical facts; (2) the search must not be primarily motivated by an intent to arrest and seize evidence; and (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched … .  People v Doll, 141, CtApp 10-17-13

 

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Insufficient Evidence to Warrant Jury Charge on Intoxication Defense

The Court of Appeals affirmed defendant’s rape conviction finding that defendant presented insufficient evidence to warrant a jury charge on the intoxication defense:

Although intoxication is not a defense to a criminal offense, a defendant may offer evidence of intoxication whenever relevant to negate an element of the charged crime (see Penal Law § 15.25).  An intoxication charge should be issued when, viewing the evidence in a light most favorable to defendant …, “there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to [an] element . . . on that basis” … .  In order to meet this “relatively low threshold,” defendant must present evidence “tending to corroborate his claim of intoxication, such as the number of drinks, the period of time between consumption and the event at issue, whether he consumed alcohol on an empty stomach, whether his drinks were high in alcoholic content, and the specific impact of the alcohol upon his behavior or mental state” … .

Here, the evidence was insufficient to allow a reasonable juror to harbor a doubt concerning the element of intent on the basis of intoxication.  Defendant’s bare assertions concerning his intoxication were, by themselves, insufficient … .  Nor did his statement to police and the victim’s testimony that she smelled alcohol on his breath corroborate defendant’s claim.  While he may, indeed, have consumed alcohol prior to the events leading up to the crimes alleged, the evidence established that defendant’s conduct was purposeful.  He cut a hole in a screen to gain entry, instructed the victim to be quiet, threw a blanket over her head, and stole her cell phone so she could not call the police.  Given this evidence, the court correctly ruled an intoxication charge was not warranted. People v Beaty, 148, CtApp 10-17-13

 

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Nonsignatory Could Not Be Compelled to Arbitrate Under Direct Benefit Estoppel Doctrine

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversed the appellate division and determined a party who was not a signatory to an agreement which included an arbitration clause could not be compelled to arbitrate under the direct benefit estoppel doctrine.  In explaining the doctrine, the court wrote:

Under the direct benefits theory of estoppel, a nonsignatory may be compelled to arbitrate where the nonsignatory “knowingly exploits” the benefits of an agreement containing an arbitration clause, and receives benefits flowing directly from the agreement … .

Where the benefits are merely “indirect,” a nonsignatory cannot be compelled to arbitrate a claim.  A benefit is indirect where the nonsignatory exploits the contractual relation of the parties, but not the agreement itself … .  Matter of Belzberg v Verus Investments Holdings Inc, 149, CtApp 10-17-13

 

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Judge Who Had Represented Defendant Not Required to Recuse Himself

In a full-fledged opinion by Judge Pigott (over a substantial partial dissent which dealt with defense counsel’s antagonistic behavior toward the judge and degrading comments about the defendant), the Court of Appeals determined the trial judge, who had represented the defendant in the past on an unrelated matter (about which the judge had no specific memory), properly denied defendant’s recusal request which alleged bias on the judge’s part:

Unless disqualification is required under Judiciary Law § 14, a judge’s decision on a recusal motion is one of discretion … .  “This discretionary decision is within the personal conscience of the court when the alleged appearance of impropriety arises from inappropriate awareness of nonjuridical data” … .  We have held that for any alleged bias and prejudice to be disqualifying it “must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case” … .  People v Glynn, 155, CtApp 10-17-13

 

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School Employee Stated Discrimination Cause of Action City Department of Education

The Court of Appeals affirmed the appellate division and found plaintiff had presented sufficient evidence of employment discrimination to survive a motion to dismiss:

Defendants are of course correct that evidence only that the principal made stray discriminatory comments without any basis for inferring a connection to the termination would be insufficient to defeat defendants’ motion (see Forrest, 3 NY3d at 308 [comments made years before the plaintiff’s termination failed to raise a triable issue of fact in light of the clear evidence of plaintiff’s misconduct]).  But that is not the case here.  Plaintiff has offered evidence of, among other things: defendant principal’s repeated homophobic remarks directed at plaintiff; his decision to report to the Department of Education (DOE) allegations that plaintiff had engaged in misconduct while working at an after-school program that he did not supervise; his close relationship with the alleged victims of the misconduct; his independent decision to terminate plaintiff’s employment; and the after-school program supervisor’s opinion that plaintiff had not engaged in any misconduct worthy of reporting to the DOE. This is sufficient to deny defendants’ motion for summary dismissal.  Sandiford v City of New York Dept of Education, 157, CtApp 10-17-15

 

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Damage to Building Caused By Excavation Next Door Constituted “Vandalism”

In a full-fledged opinion by Judge Smith, over a partial dissent, the Court of Appeals answered two certified questions from the Second Circuit.  The case involved damage to a building caused by the excavation of a parking garage next door. The question was whether the damage could fall within the meaning of “vandalism” in the building owner’s insurance policy, even though the alleged acts were not directed at the damaged building.  The Court of Appeals answered in the affirmative:

It is true that, in some cases of alleged vandalism not directed at particular property, the term does not intuitively seem to fit.  … The word vandalism, which derives from the sack of Rome by the original Vandals in 455 AD (see IV, Gibbon, The History of the Decline and Fall of the Roman Empire at 246-248 [Folio Society 1986]), more readily brings to mind people who smash and loot than business owners who seek their own profit in disregard of the injury they do to the property of others.  We conclude, however, that there is no principled distinction between the two.  An excavator who is paid to dig a hole, and does so in conscious disregard of likely damage to the building next door, is, for these purposes, not essentially different from an irresponsible youth who might dig a hole on the same property, with the same effect, whether in search of buried treasure or just for fun. …

In common speech, and by the express terms of the policy in suit, vandalism is “malicious” damage to property.  The Second Circuit’s second question asks, in essence, what state of mind amounts to “malice” for these purposes.  We answer by adopting, insofar as it relates to property damage, the formulation we have used in reviewing awards of punitive damages. Conduct is “malicious” for these purposes when it reflects “such a conscious and deliberate disregard of the interests of others that [it] may be called willful or wanton”… .  Georgitsi Realty LLC v Penn-Starr Insurance Co, 156, CtApp 10-17-13

 

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Son’s Application for Succession to Mitchell-Lama Apartment Should Not Have Been Denied Because of Mother’s Failure to File Income Affidavit

In a full-fledged opinion by Judge Lippman, with three dissenters, the Court of Appeals determined that his mother’s failure to file an income affidavit did not warrant the denial of her son’s [Murphy’s] application for succession to the Mitchell-Lama apartment vacated by his parents:

In this case, DHCR [Division of Housing and Community Renewal] contests neither Murphy’s status as a family member, nor that he lived in the apartment during the relevant two-year period of 1998-1999.  The sole basis for DHCR’s denial of Murphy’s application was that his mother did not file the requisite income affidavit for 1998, the year prior to Murphy’s high school graduation.  Given the overwhelming evidence of primary residence, and the absence of any indication that the failure to file was related to Murphy’s status as a co-occupant or an income-earner,  we hold that it was arbitrary and capricious for DHCR to deny succession on the basis of the failure to file a single income affidavit.

There is no doubt that DHCR has a compelling interest in encouraging the timely filing of income affidavits in order to fairly and efficiently administer the Mitchell-Lama program. Housing companies and supervising agencies like DHCR rely on these affidavits to monitor both the number and aggregate income of occupants, information that is crucial to determining the appropriate amount of rent and to ensuring that tenants remain eligible for the rental subsidy.  Accordingly, failure to file income affidavits can result in harsh penalties: the tenant can be charged a surcharge on rent for the applicable year (as occurred here), or can be evicted (see 9 NYCRR §§ 1727-2.6 [a] and 1727-5.3 [a] [7]).

In the succession context, however, the principal purpose of the income affidavit is to provide proof of the applicant’s primary residence… . As both Supreme Court and the Appellate Division noted, Murphy provided ample evidence in support of his succession application evincing that he resided in the apartment during 1998 and 1999.  Indeed, DHCR does not dispute Murphy’s residency for the past 32 years.  DHCR instead cites only his mother’s technical non-compliance for a single year to justify evicting him from the only home he has ever known.

Notwithstanding the importance of the income affidavit requirement, given the overwhelming evidence of residency provided in this case, and the lack of relationship between the tenant-of-record’s failure to file and Murphy’s income or cooccupancy, DHCR’s decision to deny Murphy succession rights was arbitrary and capricious.  Matter of Murphy v NYS Division of Housing and Community Renewal, 146, CtApp 10-17-13

 

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Assignment of Counsel Required Before Determining Whether Appeal Should Be Dismissed as Untimely

The Court of Appeals determined the appellate division was required to assign counsel upon a showing of indigency before ruling on whether defendant’s first-tier appeal as of right should be dismissed for failure to meet the timeliness requirement in the 2nd Department’s rules:

In this case, the Appellate Division erroneously failed to assign counsel to represent defendant before dismissing his first-tier appeal as of right based on his failure to timely perfect it.  Notwithstanding the Appellate Division’s rule mandating automatic dismissal of an untimely perfected appeal (see 22 NYCRR 670.8 [f]), its decision to dismiss the appeal here remained a discretionary determination on the merits of a threshold issue on defendant’s first-tier And an appellate court had not yet passed on, nor had counsel presented, defendant’s appellate claims with respect to dismissal or any other matter, thus leaving defendant ill equipped to represent himself. Because the factors cited in Douglas [372 US 387], Halbert [545 US 605] and Taveras [463 F3d 141], are present in the instant case, the Appellate Division was required to assign defendant an attorney upon a showing of indigence in order to enable him to oppose the court’s motion to dismiss his first-tier appeal as of right, and the court’s failure to appoint counsel to represent defendant without considering his indigency or the merits of dismissal warrants reversal and reinstatement of defendant’s appeal.  Upon remittal to the Appellate Division, that court should decide whether defendant is indigent pursuant to CPLR 1101.  If defendant establishes his indigence, the court must assign counsel to litigate the dismissal motion, and the court should determine, in its discretion, whether dismissal is appropriate. appeal, rather than an automatic bar to appeal … . People v Kordish, 252, CtApp 10-17-2013

 

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