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THE SIGHTSEEING BUS COMPANY’S COUNTERCLAIMS ALLEGING CONCERTED ANTI-COMPETITIVE BEHAVIOR BY OTHER BUS COMPANIES IN VIOLATION OF THE DONNELLY ACT (GENERAL BUSINESS LAW 340) SHOULD NOT HAVE BEEN DISMSSED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the counterclaims by a tour bus company, Go New York, alleging anti-competitive behavior in violation of the Donnelly Act by other bus companies, called the Gray Line respondents, should not have been dismissed:

The Donnelly Act prohibits “[e]very contract, agreement, arrangement or combination” through which “a monopoly . . . is or may be established or maintained,” whereby “competition or the free exercise of any activity in the conduct of business . . . is or may be restrained,” or whereby trade or business is or may be restrained “[f]or the purpose of establishing or maintaining any such monopoly or unlawfully interfering with the free exercise of any activity in the conduct of any business, trade or commerce” (General Business Law § 340 [1]). As with a claim brought “under its essentially similar federal progenitor, section 1 of the Sherman Act (15 USC § 1 et seq),” a claim brought under the Donnelly Act, at a minimum, “must allege both concerted action by two or more entities and a consequent restraint of trade within an identified relevant product market” … . The Court has recognized that “the sweep of Donnelly may be broader than that of Sherman” insofar as the Donnelly Act proscribes “arrangements” in addition to contracts, combinations, and conspiracies … . …

Go New York alleges that the Gray Line respondents conspired with other counterclaim defendants (which Go New York refers to as “Big Bus/Leisure Pass”), to leverage their market share to “shut out” Go New York from the “hop-on, hop-off sightseeing tour bus market.” According to the facts asserted—which we must accept as true on this motion—representatives from various New York City attractions refused to do business with Go New York after Gray Line and Big Bus/Leisure Pass impugned Go New York’s reputation and threatened to end their business with those attractions if they did business with Go New York. Go New York also alleged that, although certain attractions referenced exclusive relationships with either Gray Line or Big Bus/Leisure Pass as a basis not to partner with Go New York, the attractions in fact partnered with both. Thus, it can be inferred that the claimed exclusive relationships were a pretext to cover for anticompetitive efforts to exclude Go New York. Although sparse, these factual assertions and all the possible inferences to be drawn therefrom are sufficient to allege concerted action between two or more entities and support a cognizable Donnelly Act counterclaim under our liberal notice pleading standards … . Taxi Tours Inc. v Go N.Y. Tours, Inc., 2024 NY Slip Op 01333, CtApp 3-14-24

Practice Point: The allegations here were deemed sufficient to state a cause of action for a violation of the Donnelly Act, which prohibits concerted anti-competitive behavior by businesses designed to exclude a competing business from the market.

 

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WHERE A LAWSUIT AGAINST A UNION SEEKS INJUNCTIVE RELIEF, AS OPPOSED TO MONETARY DAMAGES, THE COMPLAINT NEED NOT ALLEGE EVERY MEMBER OF THE UNION RATIFIED THE CHALLENGED CONDUCT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the precedent (Martin v Curran (303 NY 276) prohibiting a lawsuit against a union (an unincorporated association) unless it was demonstrated every member of the union ratified the challenged action only applies when the lawsuit seeks monetary damages, not, as here, injunctive relief:

… [E]xtending [Martin v Curran (303 NY 276 [1951])] to bar union members from seeking any form of injunctive relief against a union, would have troubling implications. Respondents do not seriously dispute that, if Martin precludes petitioners’ claim here, union members would have no recourse to the courts even when incumbent union officials are allegedly manipulating elections to maintain power. Applying Martin to bar suits seeking to compel union officials to abide by their respective union constitutions and bylaws would have “far-reaching consequences” and risk “stifl[ing] all criticism” and democracy “within the union” … .

We therefore clarify that where, as here, union members seek only injunctive relief against the union and state no claim for pecuniary damages, the pleading is not governed by Martin and, as such, a plaintiff need not allege the participation of each individual member to bring a claim in accordance with General Associations Law § 13. The petition below was therefore improperly dismissed on that ground. Matter of Agramonte v Local 461, Dist. Council 37, Am. Fedn. of State, County & Mun. Empls., 2024 NY Slip Op 01332, CtApp 3-14-24

Practice Point: The complaint in a lawsuit against a union seeks injunctive relief, as opposed to monetary damages, the complaint need not allege that every member of the union ratified the challenged conduct.

 

 

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DECEDENT’S WORK-RELATED COVID DEATH ENTITLED DECEDENT’S DAUGHTER, DECEDENT’S “STATUTORY BENEFICIARY,” TO “ACCIDENTAL DEATH BENEFITS” UNDER A RECENT STATUTE; PETITIONER, DECEDENT’S PARTNER, WHO WAS DECEDENT’S “DESIGNATED BENEFICIARY” FOR “ORDINARY DEATH BENEFITS,” WAS NOT ENTITLED TO THE “ACCIDENTAL DEATH BENEFITS” (CT APP).

The Court of Appeals, affirming the Appellate Division, determined the respondent Teachers’ Retirement System properly awarded “accidental death benefits” to decedent’s daughter under a recent law which classified certain work-related COVID death as “accidental.” The dispute here was between the “statutory beneficiary,” decedent’s daughter who received the “accidental death benefits,” and the “designated beneficiary,” decedent’s partner, who was entitled to any “ordinary death benefits:”

he statutory text refutes petitioner’s argument that respondent’s denial of her claim for ordinary death benefits was irrational. Retirement and Social Security Law § 607-i (a) (3) provides that the accidental death benefit “shall” be paid to a member’s statutory beneficiary if the member meets the stated criteria. This is consistent with the recognition in the legislative history that “[o]nce the statutory beneficiary demonstrates this proof, entitlement to the [a]ccidental [d]eath [b]enefit is mandatory” … . Additionally, preexisting law provided that an ordinary death benefit is only available when accidental death benefits are unavailable (see Retirement and Social Security Law § 606-a [a] [3]). Matter of Colon v Teachers’ Retirement Sys. of the City of N.Y., 2024 NY Slip Op 01331, CtApp 3-14-24

Practice Point: Here decedent’s daughter was the “statutory beneficiary” of “accidental death benefits” under the Retirement and Social Security Law, and decedent’s partner was the “designated beneficiary” for “ordinary death benefits” under the Retirement and Social Security Law. Decedent’s daughter was properly awarded the “accidental death benefits” under a recent statute covering work-related COVID deaths.

 

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​ THE DENIAL OFTHE NON-RESIDENT’S APPLICATION FOR EMPLOYMENT IN NEW YORK CITY IS SUBJECT TO THE EMPLOYMENT-DISCRIMINATION PROHIBITIONS IN THE NEW YORK CITY AND NEW YORK STATE HUMAN RIGHTS LAW (CT APP).

The Second Department, answering a certified question from the Second Circuit, in a full-fledged opinion by Judge Singas, determined that the denial of an non-New-York-resident’s application for employment in New York City is subject to the prohibitions of employment discrimination under the NYS and NYC Human Rights Law. Plaintiff was employed by defendant in Washington DC and sought, but was denied, a new position with the defendant in New York City:

… [A] nonresident who has been discriminatorily denied a job in New York City or State loses the chance to work, and perhaps live, within those geographic areas. The prospective employee personally feels the impact of a discriminatory refusal to promote or hire in New York City or State, because that is where the person wished to work (and perhaps relocate) and where they were denied the chance to do so. When applying the required liberal construction of “inhabitants” and “individual within this state” (Executive Law § 290 [3]; Administrative Code § 8-101), a prospective inhabitant or employee, who was denied a job opportunity because of discriminatory conduct, fits comfortably within the Human Rights Laws’ protection. Syeed v Bloomberg L.P., 2024 NY Slip Op 01330, CtApp 3-14-24

Practice Point: Plaintiff worked for defendant in Washington DC and sought, but was denied, a new position with defendant in New York City. Although a non-resident, plaintiff could bring a failure-to-hire/failure-to-promote employment-discrimination action in New York pursuant to the NYC and NYS Human Rights Law.

 

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THE SORA RISK-LEVEL ASSESSMENT PROCEEDINGS MUST BE CONDUCTED 30 DAYS BEFORE DEFENDANT’S RELEASE FROM CONFINEMENT, REGARDLESS WHETHER THE STATE IS CONSIDERING OR IS IN THE PROCESS OF INSTITUTING CIVIL COMMITMENT PROCEEDINGS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Curran, over a comprehensive two-judge dissenting opinion by Judge Wilson, determined that the sex offender risk-level assessment proceedings must be held 30 days prior to a defendant’s release from confinement, regardless whether the state is considering instituting, or already has instituted, proceedings to civilly commit the defendant pursuant to the Sex Offender Management and Treatment Act (SORA):

The Sex Offender Registration Act (SORA) (Correction Law § 168 et seq.) provides that a sex offender “shall” be classified into one of three risk level categories “[30] days prior to discharge, parole or release” (Correction Law § 168-n [2]). The central question presented by these appeals is whether, for purposes of SORA, this deadline is properly measured from the date an offender is released from confinement by the Department of Corrections and Community Supervision (DOCCS), despite pending or contemplated proceedings to civilly commit the offender under the Sex Offender Management and Treatment Act (SOMTA) (Mental Hygiene Law § 10.01 et seq.). We hold that, under a plain reading of SORA, the 30-day deadline for conducting a risk level classification hearing must be measured from an offender’s release by DOCCS upon the completion of a prison sentence, irrespective of whether the state is considering instituting, or has already instituted, proceedings under SOMTA. We further hold that offenders are not denied due process by having a SORA hearing at a time when they may be civilly committed under SOMTA. People v Boone, 2024 NY Slip Op 00928, CtApp 2-22-24

Practice Point: SORA risk-level-assessment proceedings are to be held 30 days prior to defendant’s release from confinement and cannot be delayed because the state is considering or has instituted proceedings for civil commitment.

 

ALTHOUGH DEFENDANT WAS CHARGED WITH BURGLARY AS A SEXUALLY MOTIVATED FELONY, WHICH REQUIRES PROOF THE CRIME WAS MOTIVATED BY SEXUAL GRATIFICATION, THE PEOPLE WERE ENTITLED TO A JURY INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF BURGLARY SECOND, WHICH NEED NOT BE MOTIVATED BY SEXUAL GRATIFICATION (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the People were entitled to a jury instruction on the lesser included offense (burglary second degree) where the indictment charged burglary second degree as a sexually motivated offense. Defense counsel objected arguing defendant was not given notice of the need to defend against a burglary charge which did not include the “sexual gratification” element. The Appellate Division agreed with defense counsel’s argument, but the Court of Appeals rejected it, noting that a burglary could be motivated by “sexual harassment” but not by “sexual gratification:”

Defendant confronted, assaulted, and groped several women outside of a New York University dormitory, including grabbing a student by the throat and sexually assaulting her. The students managed to run from defendant and into their dormitory. Shortly thereafter, defendant entered the dormitory and had an altercation with the building’s security guard who tried to block his way, but defendant pushed through the turnstiles that separated the dormitory’s public lobby from the elevator bank that led to the private residences. The security guard was able to return defendant to the lobby, where defendant continued to harass students until police arrived and arrested him. * * *

… [C]harging burglary as a sexually motivated felony does not … limit the People to proving that a defendant intended to commit what is traditionally considered a “sex crime” when he or she entered the dwelling. … [T]he People must prove that, regardless of the crime the defendant intended to commit inside the dwelling, the burglary was motivated in substantial part by personal sexual gratification. For example, the People may charge a sexually motivated burglary based on a theory that the defendant intended to commit larceny once inside of a dwelling, but still maintain the motivation for the burglary was sexual gratification.

…[T]he inverse is also possible: the People may argue that the intended crime was obviously sexual in nature, but the jury may find that, although the defendant entered or remained in the dwelling intending to commit that crime, the motivation was something other than sexual gratification. In that situation … the proof may be insufficient to convict defendant of the sexually motivated felony but sufficient as to the lesser included offense of burglary in the second degree. People v Seignious, 2024 NY Slip Op 00927, CtApp 2-22-24

Practice Point: Although it may be possible for defense counsel to ask for a more limited jury instruction, here the People, who had charged defendant with burglary second degree as a sexually motivated felony (with a sexual-gratification element), were entitled to a jury instruction on the the lesser included offense of burglary second degree (with no sexual-gratification element).

 

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EVEN WHERE IT IS POSSIBLE DEFENDANT LACKS THE CAPACITY TO UNDERSTAND THE SORA RISK-LEVEL PROCEEDINGS, THE RISK-LEVEL ASSESSMENT CAN BE MADE WITHOUT AN INDEPENDANT ASSESSMENT OF DEFENDANT’S MENTAL CAPACITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannaturo, over a two-judge dissenting opinion by Judge Rivera, and a dissent by Judge Halligan, determined the SORA risk-level proceedings can proceed without an assessment of the defendant’s mental health, even where, as here, there is a possibility defendant make lack the capacity to fully comprehend the risk-level proceedings:

The Sex Offender Registration Act (SORA) requires that every person convicted of a sex offense be given a risk-level classification corresponding to their assessed likelihood of recidivism and potential danger to the community. This risk level, in turn, determines the scope of information available to the public concerning the offender. To protect against erroneous classification, judicial determination of an offender’s risk level can occur only after the offender has been provided notice, counsel, disclosure of relevant information, and an opportunity to object and present evidence at a hearing, at which the People must prove the appropriateness of the classification by clear and convincing evidence. An offender’s risk level is also subject to re-evaluation on an annual basis.

The primary question on this appeal is whether due process precludes a court from determining a sex offender’s risk level when there is a possibility that the offender—although represented by counsel and provided the other protections listed above—may lack capacity to fully comprehend risk-level assessment proceedings. We hold that the many safeguards already provided under SORA minimize the risk of inaccurate risk-level classification and adequately balance the competing private and State interests in these civil proceedings. People v Watts, 2024 NY Slip Op 00926, CtApp 2-22-24

Practice Point: The safeguards in place for SORA-risk-level-assessment proceedings are sufficient to protect the rights of a defendant who may lack the capacity to comprehend the proceedings. There is no need for an independent assessment of defendant’s mental capacity before making the risk-level assessment.

 

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WHERE MODIFICATION OF A SECURING ORDER (RELEASE ON BAIL) IS NOT BASED UPON RISK OF FLIGHT, BUT RATHER IS BASED UPON THE COMMISSION OF FELONIES WHILE RELEASED ON BAIL, A FULL EVIDENTIARY HEARING MUST BE HELD, OR, IN THE ALTERNATIVE, THE PEOPLE CAN SUBMIT TRANSCRIPTS OF GRAND JURY TESTIMONY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, clarified the appropriate procedures for modifying a securing order when a defendant who has been released on bail is alleged to have committed other crimes:

While out on bail after his arrest for a felony, defendant was arrested three times for additional violent felonies. The court modified his securing order by remanding defendant. This appeal concerns the overlap between statutory provisions governing modifications to securing orders under these circumstances. We now hold that, where otherwise applicable, courts may modify a securing order when a defendant is charged with additional class A or violent felonies pursuant to either CPL 530.60 (1) or 530.60 (2) (a), but that, where the Court proceeds under CPL 530.60 (1), the record must reflect that the decision was based on the risk of flight factors and criteria in CPL 510.30. Where, as here, the record does not demonstrate that the court’s decision was based on defendant’s increased risk of flight, it will be assumed that the court proceeded pursuant to CPL 530.60 (2) (a) and a failure to follow the procedural requirements of CPL 530.60 (2) (c) will be considered error. * * *

Where a court modifies a securing order on [a]reasonable cause finding, and so determines that a defendant poses a danger to the community, the court must ensure that the procedural requirements of subdivision (2) (c) are followed (see e.g. People ex rel. Ryan v Warden, 113 AD2d 116, 117 [1st Dept 1985] [subdivision (2) (c) hearing required where “(p)etitioner’s remand without bail was, concededly, based solely upon his arrest for a new charge as provided for in CPL 530.60 (2) (a) and not on any finding that there was a likelihood he might not return to court (under) CPL 530.60 (1)”]). These prerequisites—a hearing with relevant, admissible evidence and the cross-examination of witnesses, or the submission of grand jury testimony transcripts—are designed to provide the court with a basis for a reasonable cause determination and to ensure that a defendant receives due process. While the procedural prerequisites provide for a more formal hearing with witness testimony, they also provide the People with the option, as they did upon remittal here, to submit transcripts of grand jury testimony—a streamlined approach that may provide the support needed for a reasonable cause finding. People ex rel. Rankin v Brann, 2024 NY Slip Op 00850, CtApp 2-20-24

Practice Point: Before bail is revoked because the defendant is alleged to have committed felonies while released on bail, a full evidentiary hearing must be held to flesh out the alleged crimes, or the People may submit transcripts of grand jury testimony. The mere allegation that defendant committed additional crimes while on bail is not enough.

 

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THE JURY NOTE REQUESTED THE “DEFINITIONS” OF THE CHARGED OFFENSES; DEFENSE COUNSEL ASKED THE JUDGE TO ALSO REREAD THE JUSTIFICATION INSTRUCTION IN THIS MURDER CASE; THE JUDGE REFUSED; BECAUSE THE JURY’S NOTE WAS SPECIFIC AND DID NOT REQUEST THE JUSTIFICATION INSTRUCTION, THE JUDGE PROPERLY DENIED DEFENSE COUNSEL’S REQUEST (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, with a concurrence, affirming defendant’s convictions in this murder, attempted murder and assault case, determined the judge did not err by denying defense counsel’s request to reread the justification jury instruction after the jury sent out a note asking for the definitions of the charged offenses. The jury asked for “[a]ll definitions discussed: Murder II, Manslaughter I, Depraved Murder II, etc.,” Because the request was deemed specific the justification instruction was not reread because the jury didn’t request it:

… “[T]he form of the jury’s” note indicated a request that the jury be recharged on the elements of the crimes … . The jury note asked for “all definitions” contained in the charges: the jury did not simply ask for “all definitions” to be read back but instead chose to limit which “definitions” it sought by providing an exemplary list containing the first three of the ten criminal offenses on which the trial court had originally instructed the jury and ending the list with “etc.” The usage of “etc.” in this context corroborates this interpretation of the note because et cetera at the end of a list signals “others especially of the same kind” … . That the jury did not seek further instruction or clarification after the recharge also supports our conclusion that the trial court correctly interpreted the jury note and responded meaningfully and with the complete information sought … . People v Aguilar, 2024 NY Slip Op 00849, CtApp 2-20-24

Practice Point: A judge must respond “meaningfully” to a jury note. Here the note requested definitions of the charged crimes. The judge properly denied defense counsel’s request to reread the justification instruction because the jury’s not was specific and did not mention justification.

 

THE COVID PROTOCOLS WERE IN EFFECT DURING DEFENDANT’S TRIAL; THE JURORS WERE REQUIRED TO WEAR FACE MASKS WHEN THEY WERE NOT BEING INDIVIDUALLY QUESTIONED DURING VOIR DIRE; THE INABILTY TO SEE THE JURORS’ FULL FACES DID NOT DEPRIVE DEFENDANT OF HIS RIGHT TO BE PRESENT DURING JURY SELECTION AND DID NOT VIOLATE HIS DUE PROCESS RIGHTS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, affirming defendant’s convictions, determined defendant’s inability to see jurors’ facial expressions during voir dire, because of the COVID mask-wearing requirement, did not deprive him of the opportunity to be present during jury selection and did not deprive him of due process of law. Although the jurors wore masks when not questioned during voir dire, the mask was removed when each juror was questioned individually:

… [D]efendant maintains that safety protocols implemented during the COVID-19 pandemic—namely social distancing and the requirement that prospective jurors cover their mouths and noses with a face mask when not being questioned individually—violated these rights because defendant could not see each prospective juror’s entire face throughout the jury selection process. Because neither a defendant’s right to be present during jury selection nor due process require that defendant have a simultaneous, unobstructed view of the entirety of every prospective juror’s face during jury selection, we affirm. * * *

… D]efendant was present at all phases of jury selection. … [D]efendant was able to hear the questions posed to prospective jurors and to observe their responses including their “facial expressions, demeanor and other subliminal responses.” * * *

… [T]he safety protocols in use at defendant’s jury selection were permissible as they did not impede defendant’s ability to be present and observe the selection process. A defendant’s right to be present at jury selection does not entail the absolute or unlimited ability to observe each prospective juror’s facial expressions. After all, there is much more to body language than a person’s nose or mouth; defendant could still observe a great deal about prospective jurors including their posturing, the position of their arms, and their eyes and eyebrows … . People v Ramirez, 2024 NY Slip Op 00848, CtApp 2-20-24

Practice Point: Here, during voir dire, the jurors who were not being questioned wore face masks. Defendant’s inability to see the full faces of the jurors when they were not being questioned did not deprive defendant of his right to be present during jury selection and did not deprive defendant of due process of law.

 

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