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PUNITIVE DAMAGES IN A DECEPTIVE BUSINESS PRACTICES ACTION PURSUANT TO GENERAL BUSINESS LAW 349 (H) ARE LIMITED TO THREE TIMES ACTUAL DAMAGES (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Troutman, over a two-judge concurring opinion, determined the terms of the life insurance policy, which was terminated by the defendant insurer, were unambiguous and enforceable. The General Business Law section 349 (h) cause of action alleging deceptive business practices survived but any punitive damages were limited to three times actual damages. The nature of the life insurance policy and payment scheme are too complex to fairly describe here. The $2 million life insurance policy was issued to an 82-year-old woman. With respect to the available damages in a private General Business Law 349 (h) action, the court wrote:

… [T]he legislature carefully calibrated damages at the time section 349 (h) was enacted. We decline to alter that balance by making available a remedy that goes far beyond what the legislature contemplated. As evidenced by the increased penalties on similar statutes, the legislature will act where it believes current remedies are insufficient. It has not done so here. We therefore conclude that punitive damages in addition to the treble damages delineated in section 349 (h) are unavailable. Hobish v AXA Equit. Life Ins. Co., 2025 NY Slip Op 00183, CtApp 1-14-25

Practice Point: Consult this opinion for an in-depth discussion of the damages available in a private General Business Law 349 (h) deceptive-business-practices action.

 

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THE STANDARD FOR AN INTERMEDIATE APPELLATE COURT’S REVIEW OF A SENTENCE CLARIFIED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a three-judge dissenting opinion, remitted the matter to the Appellate Division for a determination whether a sentence reduction is warranted using the correct standard. The defendant need not demonstrate extraordinary circumstances or an abuse of discretion by the sentencing court to warrant a review of the sentence by the intermediate appellate court:

The intermediate appellate courts are empowered to reduce a sentence that, though legal, is “unduly harsh or severe” (CPL 470.15 [6] [b]). The decisions whether a sentence warrants reduction under that standard, and the extent to which the sentence should be reduced, are committed to the discretion of the intermediate appellate court, which has “broad, plenary power” to reduce the sentence “without deference to the sentencing court” … . A defendant need not demonstrate extraordinary circumstances or abuse of discretion by the sentencing court in order to obtain a sentence reduction … . People v Brisman, 2025 NY Slip Op 00123, CtApp 1-9-25

Practice Point: The correct standard for review of a sentence in an intermediate appellate court is whether the sentence is “unduly harsh or severe.” The decision to reduce a sentence is committed to the discretion of the intermediate court without deference to the sentencing court. The defendant need not show extraordinary circumstances or an abuse of discretion by the sentencing court.

 

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THE DENIAL OF DEFENDANT’S MOTION TO SEVER THE CHARGES RELATING TO TWO SEPARATE MURDERS, COMMITTED NEARLY TWO YEARS APART, WAS NOT AN ABUSE OF DISCRETION; DEFENDANT DID NOT DEMONSTRATE THE JURY WOULD HAVE HAD DIFFICULTY CONSIDERING SEPARATELY THE PROOF FOR EACH OFFENSE (CT APP).

The Court of Appeals, affirming defendant’s murder convictions, in a full-fledged opinion by Judge Halligan, over two comprehensive dissenting opinions, determined the denial of defendant’s motion to sever the charges relating to two separate murders, committed nearly two years apart, was not error:

The first victim was the defendant’s roommate, who was found dead in their shared apartment in 2013 after a fire that occurred under circumstances that later raised questions about her cause of death. The second victim was a woman whom defendant had hired to go on a date with him in December 2014; her body was found in a shallow grave in May 2015. The defendant was arrested in 2017 … . * * *

Where counts have been joined under CPL 200.20 (2) (c), the CPL provides that the trial court has discretion to sever them if doing so would be “in the interest of justice and for good cause shown” (id. 200.20 [3]). This provision has its origins in a 1936 amendment to the Code of Criminal Procedure that allowed joinder of “two or more acts or transactions constituting crimes of the same or a similar character which are neither connected together nor parts of a common scheme or plan” … .

The statute specifies two situations that establish good cause: first, where there is “[s]ubstantially more proof on one or more such joinable offenses than on others and there is a substantial likelihood that the jury would be unable to consider separately the proof as it relates to each offense”; and second, where there is “[a] convincing showing that a defendant has both important testimony to give concerning one count and a genuine need to refrain from testifying on the other, which satisfies the court that the risk of prejudice is substantial” … . The statute expressly notes that good cause is not limited to these grounds … , and we have explained that “a defendant’s fundamental right to a fair trial free of undue prejudice” must be protected when offenses are joined for trial … . …

… The defendant asserts that “the jury was incapable of considering the proof separately with respect to each offense” because the proof of each crime was “markedly different” and “dissimilar.” … [But] the key question is whether it would be difficult for the jury to consider separately the proof for each offense … . People v Mero, 2024 NY Slip Op 06385, CtApp 12-19-24

Practice Point: Consult this opinion, especially the extensive dissents, for a comprehensive discussion of the issues raised by trying a defendant for two unrelated murders, separated by years, in a single trial.

 

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DEFENDANT’S CROSSING THE FOG LINE ON THE RIGHT SIDE OF THE HIGHWAY THREE TIMES IN SECONDS CONSTITUTED PROBABLE CAUSE FOR THE TRAFFIC STOP (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined there was probable cause for the traffic stop which resulted in a DWI conviction. Defendant’s car crossed the fog line on the right side of the roadway three times within seconds:

When a driver swerves over the fog line repeatedly, in quick succession, they have failed to “drive[ ] as nearly as practicable entirely within a single lane” in violation of VTL § 1128 (a) (see e.g. Schoonmaker v New York State Dept. of Motor Vehicles, 33 NY3d 926, 928 [2019] [testimony that vehicle “ma(de) an erratic movement off the right side of the road, crossing the fog line and moving off the shoulder with the vehicle’s right front tire” provided substantial evidence that stop was lawful under VTL § 1128 (a)]; People v Tandle, 71 AD3d 1176, 1177, 1178 [2d Dept 2010]; People v Parris, 26 AD3d 393, 394 [2d Dept 2006]; cf. People v Davis, 58 AD3d 896, 898 [3d Dept 2009] [police officer’s testimony that driver had made “brief contacts with the fog line,” but not that driver was, for example, “weaving, driving erratically or even that he drove onto the shoulder” was insufficient to support traffic stop under VTL § 1128 (a)]). On these facts, the troopers’ observations, which were credited by the suppression court, established probable cause for the traffic stop. Therefore, the court properly denied the motion to suppress. People v Rufus, 2024 NY Slip Op 06384, CtApp 12-19-24

Practice Point: Here defendant’s crossing the fog line on the right side of the highway three times in seconds violated the Vehicle and Traffic Law and constituted probable cause for the traffic stop.

 

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THE SO-CALLED “LUXURY DEREGULATION” PROVISION OF THE NYC RENT STABILIZATION LAW WAS REPEALED AS OF JUNE 14, 2019; APARTMENTS WITH LEASES IN EFFECT ON THE REPEAL DATE WHICH, PRIOR TO THE REPEAL, HAD BEEN ORDERED TO BECOME DEREGULATED, WERE NO LONGER ELIGIBLE FOR DEREGULATION AS OF JUNE 14, 2019 (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, determined that the NYC Division of Housing and Community Renewal (DHCR) properly interpreted a provision of the Rent Stabilization Law which repealed the so-called “luxury deregulation” of rent stabilized residences. Prior to the operative date of the repeal, June 14, 2019, landlords could deregulate apartments if the tenant’s income exceeded the statutory threshold for two years:

Our primary task on this appeal is statutory interpretation. Specifically, we are asked to determine whether the Division of Housing and Community Renewal (DHCR) properly interpreted part D of the Housing Stability and Tenant Protection Act of 2019 (HSTPA)—repealing so-called “luxury deregulation” of rent stabilized residences—as applying to apartments that, prior to the repeal, were ordered to become deregulated upon expiration of the tenants’ leases, which would not expire until after the effective date of the repeal. We answer that question in the affirmative and hold that, contrary to petitioner’s contention, DHCR’s interpretation of part D as eliminating luxury deregulation for an apartment owned by petitioner was proper and did not constitute an impermissible retroactive application. Matter of 160 E. 84th St. Assoc. LLC v New York State Div. of Hous. & Community Renewal, 2024 NY Slip Op 06377, CtApp 12-19-24

 

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A REPORT OF A ROAD DEFECT SUBMITTED THROUGH A CITY’S ONLINE REPORTING SYSTEM MAY CONSTITUTE “WRITTEN NOTICE” TRIGGERING MUNICIPAL LIABILITY FOR INJURY CAUSED BY THE DEFECT (CT APP).

The Court of Appeals, in full-fledged opinion by Judge Garcia, determined there was a question of fact whether the online reporting of a road defect constituted “written notice” of the defect such that the municipality may be liable for plaintiff’s motorcycle accident. The Court noted that the plaintiff also raised a question of fact whether the city created the road defect, obviating the need for written notice, and the doctrine of sovereign immunity does not apply to the proprietary function of road repair:

Plaintiff was injured when he lost control of his motorcycle on Lark Street in the City of Albany. He brought this lawsuit claiming that the accident was caused by a road defect that the City knew about and had failed to repair. The primary issue on appeal is whether certain reports submitted to the City through an online reporting system called “SeeClickFix” (SCF) served as “written notice” of that defect and, if so, whether those reports were “actually given” to the official designated by statute to receive such notice. Viewing the evidence in the light most favorable to plaintiff, based on the implementation and use of the SCF system by the City and its Department of General Services (DGS), we hold that plaintiff raised a triable issue of fact as to prior written notice to the appropriate City official. We further hold that plaintiff raised a triable issue of fact regarding the affirmative negligence exception to the prior written notice requirement, and that the City lacks governmental immunity from suit. We therefore affirm. * * *

… [A]t the time of the accident, the City’s prior written notice statute provided:

“No civil action shall be maintained against the City for damages or injuries to person or property sustained in consequence of any street . . . being defective, out of repair, unsafe, dangerous or obstructed unless, previous to the occurrence resulting in such damages or injury, written notice of the defective, unsafe, dangerous or obstructed condition of said street . . . was actually given to the Commissioner of Public Works and there was a failure or neglect within a reasonable time after the receipt of such notice to repair or remove the defect, danger or obstruction complained of” (Albany City Code former § 24-1 …). Calabrese v City of Albany, 2024 NY Slip Op 06289, CtApp 12-17-24

Practice Point: Here a report of a road defect had been submitted through an online reporting system implemented by the city. There was a question of fact whether such a report constituted “written notice” of the road defect, and whether the notice was actually given to the commissioner of public works.

 

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NYC MUST PAY CITY EMPLOYEES, RETIREES AND DEPENDENTS THE FULL COST, UP TO THE STATUTORY CAP, OF ANY HEALTH INSURANCE PLAN THE CITY OFFERS (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined NYC was required to pay city employees, retirees and dependents the full cost, up to the statutory cap, of any health insurance plan the city offers:

At issue on this appeal are the portions of Administrative Code of the City of New York § 12-126 requiring New York City (“City”) to pay, for active employees, retirees and their dependents, “the entire cost of health insurance coverage,” defined as “[a] program of hospital-surgical-medical benefits,” in an amount “not to exceed one hundred percent of the full cost of H.I.P.-H.M.O. on a category basis.” The statute requires that the City’s program includes “hospital[,] surgical [and] medical benefits.” The statute also requires the City to pay the full cost of the program, so long as that cost does not exceed the comparator in the statute. The question in this case is what section 12-126 requires the City to do when it offers more than one health insurance plan to employees and retirees. Petitioners argue that section 12-126 requires the City to pay, up to the statutory cap, for any plan it offers. The City contends that its section 12-126 obligation is satisfied if it pays up to the cap for one health insurance plan providing hospital, surgical and medical benefits. It argues that it may offer additional plans but has no statutory obligation to pay any portion of their cost, and explains that when it has paid for additional plans in the past, it has done so because it agreed to in collective bargaining, not because it was statutorily required to do so. The parties also disagree as to which health insurance plan sets the statutory cap for Medicare-eligible retirees.

We hold that section 12-126 requires the City to pay up to the statutory cap for any plan it offers to employees and retirees. Matter of NYC Org. of Pub. Serv. Retirees, Inc. v Campion, 2024 NY Slip Op 06291, CtApp 12-17-24

 

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AFTER THE DEATH OF THE COOPERATIVE OWNER, THE BOARD REFUSED TO TREAT PETITIONER AS DECEDENT’S “SPOUSE” WHICH WOULD AUTHORIZE AN AUTOMATIC TRANSFER OF DECEDENT’S LEASE AND SHARES; THE MAJORITY, OVER TWO DISSENTING OPINIONS, DETERMINED THE BOARD’S REFUSAL TO TREAT PETITIONER, WHO WAS NOT MARRIED TO DECEDENT, AS A “SPOUSE” DID NOT CONSTITUTE DISCRIMINATION BASED ON “MARITAL STATUS” (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over two dissenting opinions, determined the cooperative board did not discriminate against the petitioner when it declined to treat petitioner as the decedent-cooperative-owner’s “spouse” for the purpose of transferring decedent’s shares to petitioner:

Petitioner Maryanne McCabe resided for 13 years in a New York City cooperative building with her “long-time romantic partner,” David Burrows. Upon Burrows’ death, he willed his real property, including his unit in the building, to petitioner, who then sought to acquire his lease and shares under a lease provision authorizing an automatic transfer to a shareholder’s “spouse.” The cooperative board declined to treat petitioner as a spouse but offered to consider whether she could retain the lease and shares under a clause covering a shareholder’s family member. Petitioner argues that the board’s failure to treat her as a spouse for purposes of the automatic transfer provision violated the prohibition against discrimination on the basis of marital status under the New York City Human Rights Law (NYCHRL) (see Administrative Code of City of New York § 8-107 [5]). We disagree. * * *

The two were neither married nor in a registered domestic partnership, and petitioner was never added as a shareholder of his unit. Burrows bequeathed his apartment to petitioner when he passed away … . * * *

The NYCHRL does not define “marital status,” but Black’s Law Dictionary defines it as “[t]he condition of being single, married, legally separated, divorced, or widowed” (Black’s Law Dictionary [12th ed 2024], marital status). Along the same lines is the general understanding: “when one is queried about one’s ‘marital status,’ the usual and complete answer would be expected to be a choice among ‘married,’ ‘single,’ etc.” … . A plain reading of the term, then, is that marital status reflects the legal condition of being single, married, legally separated, divorced, or widowed. Marital status turns on whether an individual has “participated or failed to participate in a marriage …”. Matter of McCabe v 511 W. 232nd Owners Corp., 2024 NY Slip Op 06290, CtApp 12-17-24

Practice Point: The cooperative board’s refusal to treat a “long time romantic partner” of the decedent-cooperative-owner as decedent’s “spouse” for purposes of an automatic transfer of the lease and shares did not constitute discrimination on the basis of “marital status” under the NYC Human Rights Law.

 

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UNLIKE THE APPELLATE DIVISION, THE COURT OF APPEALS CANNOT CONSIDER UNPRESERVED ISSUES IN THE INTEREST OF JUSTICE; THE FAILURE TO RAISE THE ISSUE IN THE TRIAL COURT PRECLUDED REVIEW BY THE COURT OF APPEALS (CT APP). ​

The Court of Appeals, over a three-judge dissent, determined the preservation requirement precluded consideration of the appeal. The underlying question concerned when the period for calculation of prejudgment interest should begin to run:

“As we have many times repeated, this Court with rare exception does not review questions raised for the first time on appeal. Unlike the Appellate Division, we lack jurisdiction to review unpreserved issues in the interest of justice” … . “To demonstrate that a question of law is preserved for this Court’s review, a party must show that it raised the specific argument in [the trial court] and asked the court to conduct that analysis in the first instance” … . …

Among the many salutary reasons for our preservation rule is that “in making and shaping the common law . . . this Court best serves the litigants and the law by limiting its review to issues that have first been presented to and carefully considered by the trial and intermediate appellate courts” … . In considering whether to disturb well-settled Appellate Division precedent, this Court should only act where it has the benefit of a full record, including a reasoned trial court decision

As it relates to the proceedings below, claimant never raised the question of the accrual date of prejudgment interest in the trial court. Further, when a party objects to a provision contained in a judgment, they generally have the ability to seek relief pursuant to CPLR 5015 and 5019, as plaintiff was invited to do here. Had plaintiff made such a motion, arguments in favor of and against earlier accrual of prejudgment interest could have been made, thereby providing a fully developed record for appeal, an essential step for parties seeking review from the Court of Appeals. But, plaintiff did not preserve an objection to the imposition of prejudgment interest on the record before the trial court. As plaintiff had an opportunity to raise his objections in the trial court but failed to do so, the issue is unreviewable on appeal to this Court. Sabine v State of New York, 2024 NY Slip Op 06288, CtApp 12-17-24

Practice Point: Unlike the Appellate Division, the Court of Appeals cannot consider an unpreserved issue “in the interest of justice.” If the issue was not raised and preserved in the trial court, the Court of Appeals will not consider it.​

 

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AT THE SUPPRESSION HEARING THE PEOPLE FAILED TO PROVE THE LEGALITY OF THE TRAFFIC STOP, WHICH WAS BASED UPON DEFENDANT’S MAKING U-TURNS, AND THE SUPPRESSION MOTION WAS GRANTED; THE PEOPLE SHOULD NOT HAVE BEEN ALLOWED TO REARGUE THE MOTION AND PRESENT EVIDENCE DEMONSTRATING THE U-TURNS WERE, IN FACT, ILLEGAL (CT APP).

The Court of Appeals, reversing the Appellate Term, determined the judge in this DWI prosecution should not have granted the People’s motion to reargue the suppression motion. The court had initially granted defendant’s motion to suppress because the People failed to prove U-turns made by the defendant were illegal. When the suppression motion was reargued, the People presented evidence the U-turns were, in fact, illegal and the court denied suppression:

… [I]f the People have had a full and fair opportunity to oppose suppression, and the suppression court has issued a ruling on the merits, the People may not have an additional “opportunity to shore up their evidentiary or legal position” … . Under the circumstances of this case, where the People were unprepared for the suppression hearing and sought to reargue the legal issue to remedy their lack of preparedness, the same principle should apply.

At a suppression hearing, the People bear the burden of showing the legality of the police conduct in the first instance … . Here, the court granted defendant’s motion for suppression because the People failed to demonstrate that defendant’s U-turns were illegal and therefore that the stop was lawful. Neither the Assistant District Attorney nor the arresting officer could identify any traffic law provision violated by defendant. Moreover, the People did not request a recess or adjournment to determine the statutory basis for the stop, nor did they request permission to furnish a post-hearing submission to identify any relevant provision of law. Instead, the People returned a month after the court granted suppression, offering a different legal theory that they had not raised at the original suppression hearing. On that new legal theory, the court changed course and denied defendant’s motion to suppress.

Of course, “[b]efore sentence is imposed, trial courts in criminal cases have the general inherent authority to correct their own mistakes” … , which may include granting leave to reargue. Although the People may be permitted to reargue the legal or factual issues of the suppression proceedings, allowing the suppression court to grant the People’s motion to reargue in these circumstances would run afoul of our “full and fair opportunity” principle and the policies of finality and judicial efficiency underlying it. People v Lawson, 2024 NY Slip Op 06238, CtApp 12-12-24

Practice Pont: As a general rule, the People should have only one chance to demonstrate the legality of a traffic stop in the context of a suppression hearing. Once a suppression motion is granted, the People should not be allowed to reopen the hearing to present evidence which could have been presented the first time around.

 

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