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THE MAJORITY HELD THE APPELLATE DIVISION PROPERLY REFUSED TO HEAR APPELLANT FATHER’S APPEAL IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING BECAUSE FATHER WAS IN DEFAULT (NO APPEAL LIES FROM A DEFAULT); THE DISSENT ARGUED FATHER WAS NOT IN DEFAULT BECAUSE HE APPEARED BY COUNSEL (CT APP).

The Court of Appeals, affirming the Appellate Division, over a strong dissent, determined the Appellate Division properly concluded it could not hear the appellant father’s appeal in this termination-of-parental-rights proceeding because he was in default (no appeal lies from a default judgment). The dissent argued father appeared by counsel and therefore was not in default:

Before this Court, appellant does not dispute the Appellate Division’s determination that his failure to appear constituted a default.

From the dissent:

The only reviewable issue before us is whether the Appellate Division properly dismissed appellant father’s appeal from a Family Court order terminating his parental rights on the ground that appellant defaulted. That decision was in error because appellant appeared through counsel during the fact-finding and dispositional hearings, as acknowledged by Family Court, and in accordance with the Family Court Act and the CPLR (see Family Ct Act § 165; CPLR 3215 [a]). Matter of Irelynn S., 2022 NY Slip Op 01869, Ct App 3-17-22

Practice Point: No appeal lies from a default judgment. The dissent argued: A party who appears by counsel, as appellant father did in these termination-of-parental-rights proceedings, is not in default.

 

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ALTHOUGH DEFENDANT’S ATTORNEY WAS SUSPENDED BY THE SECOND CIRCUIT BEFORE DEFENDANT’S TRIAL AND SUSPENDED IN NEW YORK JUST AFTER DEFENDANT’S TRIAL, DEFENDANT’S DEPRIVATION-OF-HIS-RIGHT-TO-COUNSEL AND INEFFECTIVE-ASSISTANCE ARGUMENTS WERE REJECTED; THE ATTORNEY WAS NOT OBLIGATED TO INFORM DEFENDANT OF HIS SUSPENSION OR THE PENDING SUSPENSION PROCEEDINGS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutmam, affirmed defendant’s conviction. The court noted: (1) defendant’s attorney had been suspended by the Second Circuit before defendant’s trial; (2) defendant’s attorney was still licensed in New York at the time of the defendant’s trial and conviction; (3) defendant’s attorney was suspended in New York two weeks after defendant’s conviction; (4) the New York suspension was made “retroactive” to the date of the Second Circuit suspension (before defendant’s trial); (5) the attorney was not obligated to inform defendant of the suspension by the Second Circuit; and (6) the failure to inform defendant was considered pursuant to defendant’s ineffective-assistance argument on appeal. Defendant’s motion to vacate his conviction and his appeal were deemed properly rejected by the lower courts:

… [T]he imposition of reciprocal discipline is not a foregone conclusion, nor is the nature or length of any reciprocal discipline imposed certain. Defendant’s proposed rule would deprive attorneys of the due process to which they are entitled in pending reciprocal disciplinary proceedings. * * *

No statute, court order, or New York Rule of Professional Conduct affirmatively required [defendant’s attorney] to disclose the Second Circuit’s suspension or the pending reciprocal disciplinary proceedings in New York to defendant.  * * *

We decline to create a bright-line rule invariably requiring attorneys to affirmatively disclose the imposition of foreign discipline or pending reciprocal discipline proceedings to their clients in every case, where no court order or ethical rule requires such disclosure. …

Instead, we conclude that an attorney’s failure to disclose the imposition of foreign discipline and pending reciprocal disciplinary proceedings can adequately be assessed in the context of an ineffective assistance of counsel claim … . People v Burgos, 2022 NY Slip Op 01868, Ct App 3-17-22

Practice Point: There is no statute or rule which requires an attorney to disclose to his or her client a suspension from practice in a foreign jurisdiction or ongoing suspension proceedings in New York State.

 

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THE “SOLE REMEDY REPURCHASE PROTOCOL” IN THIS RESIDENTIAL MORTGAGE-BACKED SECURITIES CASE REQUIRES NOTICE OF EACH INDIVIDUAL DEFECTIVE LOAN BEFORE THE DEFENDANT IS REQUIRED TO REPURCHASE IT; OF THE 783 NONCONFORMING LOANS, 480 WERE NOT SPECIFICALLY IDENTIFIED; THE DEFENDANT WAS NOT OBLIGATED TO REPURCHASE THE UNIDENTIFIED LOANS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, reversing the Appellate Division, over an extensive partial dissent, determined that the “sole remedy repurchase protocol” contract provision of the residential-mortgage-backed-securities agreements requires notice of each defective loan before the obligation to repurchase is triggered:

Pursuant to the pooling and service agreement (PSA) establishing the trust, [defendant] DLJ made certain representations and warranties, including that each loan was underwritten in accordance with the originators’ underwriting standards and applicable law, that certain provided documentation was true and accurate, and that none of the loans were “high cost” or “predatory.” … [T]he PSA contains a “sole remedy” provision granting U.S. Bank, as trustee, the limited authority to seek a remedy for any breach by DLJ of these representations and warranties through a contractually established “repurchase protocol” requiring DLJ to cure, repurchase, or substitute a nonconforming mortgage loan within 90 days of notice or independent discovery of such breaching loan. * * *

… [T]he trustee’s expert reviewed 1,059 of the loans in the trust—including both previously noticed and unnoticed loans—and identified 783 allegedly nonconforming loans. Only 303 of these loans had been specifically identified by the trustee in its pre-suit letters; the remaining 480 loans were not listed in the schedules of breaching loans provided to DLJ prior to commencement of the action. * * *

A simple reading of the [agreement] demonstrates that the trustee’s assertion that loan-specific notice is not required is inconsistent with the contractual language of the repurchase protocol. The parties structured the repurchase protocol entirely through the lens of individual “mortgage loans”—clearly contemplating a loan-by-loan approach to the agreed-upon sole remedy for breach. U.S. Bank N.A. v DLJ Mtge. Capital, Inc., 2022 NY Slip Op 01866, Ct App 3-17-22

Practice Point: The plain language of a contract will be enforced. Here in this residential mortgage-backed securities case, under the terms of the contract, the defendant was not required to repurchase nonconforming loans about which it was not specifically notified. Of the 783 allegedly nonconforming loans, defendant was specifically notified of only 303.

 

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THE NYC LOFT BOARD PROPERLY REMITTED THE MATTER FOR FURTHER PROCEEDINGS IN THIS ACTION CONCERNING A SETTLEMENT AGREEMENT IN WHICH THE TENANTS PURPORTED TO WITHDRAW THEIR APPLICATION FOR LOFT LAW COVERAGE (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the NYC Loft Board properly remitted the matter for further proceedings in this proceeding involving a settlement agreement in which the tenants purported to withdraw their application for Loft Law coverage:

… [T]he matter [is] remitted to the Appellate Division with directions to remand to the New York City Loft Board for further proceedings in accordance with this memorandum.

In accordance with its regulations (see 29 RCNY § 1-06 [j] [5]), the Loft Board reviewed and rejected the parties’ proposed settlement agreement as perpetuating an illegal living arrangement. The rationality of that determination is not before us … . Under these limited circumstances, it was not irrational for the Board to remand for further proceedings, thereby declining to give effect to a provision of the settlement agreement in which tenants purported to withdraw their application for Loft Law coverage. Matter of Callen v New York City Loft Bd., 2022 NY Slip Op 00957, Ct App 2-15-22

 

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PURSUANT TO THE LOFT LAW AND THE REAL PROPERTY LAW, THE LANDLORD WAS ENTITLED TO TERMINATE THE TENANCY AND REGAIN POSSESSION OF THE LOFT IN A HOLDOVER PROCEEDING (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over an extensive two-judge dissent, reversing the Appellate Division, determined the the Loft Law did not prohibit the landlord, Aurora, from terminating the tenancy and regaining possession of the loft by a holdover proceeding. The opinion and the dissenting opinion are comprehensive and cannot be fairly summarized here:

Aurora Associates LLC, the owner of Loft 3B at 78 Reade Street in Manhattan, commenced this holdover proceeding to recover possession and terminate the tenancy of the current occupant. Summary judgment was granted to the tenant on the ground that Aurora could not terminate his tenancy because the loft unit was subject to rent stabilization. We must decide whether a loft unit located in an interim multiple dwelling covered by the provisions of the Loft Law but exempt from the rent regulation provisions of that statute by operation of a sale of the prior tenant’s rights and improvements is otherwise subject to rent stabilization. We hold that it is not … . * * *

As the Housing Court Judge explained, “[T]he core of the parties’ dispute is the rent regulatory status of the subject premises” because “[I]f the subject premises is unregulated, termination of a tenancy pursuant to Real Property Law … 232-a is a remedy available to Petitioner,” and “[i]f the subject premises is rent-stabilized, RPL … 232-a is not a remedy available to Petitioner.” * * *

Here, the prior owner purchased rights and improvements in a particular unit in this Loft Law-eligible building, removing that unit from the Loft Law’s rent regulation provisions, entitling Aurora to charge a market rent and, pursuant to Real Property Law … 232-a, to regain possession of the apartment by means of a holdover proceeding. Matter of Aurora Assoc. LLC v Locatelli, 2022 NY Slip Op 00958, CtApp 2-15-22

 

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DEFENDANT’S STATEMENT “I WOULD LOVE TO GO PRO SE” WAS NOT A DEFINITIVE REQUEST TO REPRESENT HIMSELF AND THEREFORE THE STATEMENT DID NOT TRIGGER THE NEED FOR A SEARCHING INQUIRY BY THE JUDGE (CT APP).

The Court of Appeals, in a brief memorandum decision over an extensive two-judge dissent, determined defendant’s statement “I would love to go pro se” was not a definitive commitment to self-representation and therefore did not trigger an inquiry by the judge:

… [D]efendant did not clearly and unequivocally request to proceed pro se. During a colloquy with the trial court, defendant referenced the unsuccessful application to relieve his assigned counsel made at his prior appearance, and he renewed that application, claiming that counsel was “ineffective.” The court denied the application and rejected defendant’s renewed attempt to read aloud from what defendant had previously referred to as “my testimony.” Upon review of the record as a whole, defendant’s retort, “I would love to go pro se,” immediately after the court’s denial of his applications “d[id] not reflect a definitive commitment to self-representation” that would trigger a searching inquiry by the trial court … . People v Duarte, 2022 NY Slip Op 00960, Ct App 2-15-22

 

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THE SO-CALLED TWO-HOUR RULE, REQUIRING THE REQUEST FOR A DWI BREATH TEST BE MADE AND THE REFUSAL WARNINGS BE GIVEN WITHIN TWO HOURS OF ARREST, DOES NOT APPLY TO THE ADMINISTRATIVE LICENSE REVOCATION HEARINGS HELD BY THE DEPARTMENT OF MOTOR VEHICLES (DMV); THEREFORE THE FACT THAT THE PETITIONER WAS ASKED TO TAKE THE BREATH TEST AND WAS GIVEN THE REFUSAL WARNINGS THREE HOURS AFTER ARREST DID NOT PRECLUDE THE DMV FROM CONSIDERING PETITIONER’S TEST REFUSAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFore, over a dissenting opinion, determined the so-called two-hour rule does not apply to a driver’s license revocation administrative hearing after a DWI arrest. Within two hours of arrest the police can warn the driver that a refusal to submit to the blood-alcohol breath test is admissible at trial. If the request to submit to the test is made and the refusal warnings are given more than two hours after arrest, however, the refusal is not admissible at trial. Here the petitioner refused the DWI breath test three hours after arrest, after the refusal warnings were given. He argued the two-hour rule should apply and the refusal should not be considered at the Department of Motor Vehicle’s (DMV’s) administrative license revocation hearing:

Petitioner’s reliance on the statutory interpretation analysis in People v Odum [31 NY3d 344] as support for a motorist’s substantive right to refuse a chemical test without consequence is misplaced. Odum addressed the admissibility at trial of the results of a chemical test administered more than two hours after the defendant’s arrest, and whether the refusal warnings, including the inaccurate warning regarding the use of any refusal at a criminal trial, as given to him rendered his consent to the test involuntary. We emphasized that the 1973 statute authorizing the admissibility of evidence of a test refusal at a criminal trial was in derogation of common law and concluded as a result that the statutory provision authorizing such admission—Vehicle and Traffic Law § 1194 (2) (f)—had to be strictly construed to include the two-hour rule … . In stark contrast, the limitation on the scope of the revocation hearing in section 1194 (2) (c) is not in derogation of the common law and is a subsequently enacted provision that specifically governs the issues that may be considered at an administrative hearing … . Matter of Endara-Caicedo v Vehicles, 2022 NY Slip Op 00959, CtApp 2-15-22

 

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LABOR LAW 198-B, WHICH PROHIBITS WAGE KICKBACKS, DOES NOT PROVIDE A FREESTANDING PRIVATE RIGHT OF ACTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over an extensive two-judge dissent, determined Labor Law 198-b, which prohibits wage kickbacks, does not provide a freestanding private right of action:

Labor Law § 198-b prohibits “kickbacks” by making it unlawful for any person to “request, demand, or receive” part of an employee’s wages or salary on the condition that “failure to comply with such request or demand will prevent such employee from procuring or retaining employment.” Violation of the statute is a misdemeanor offense (see Labor Law § 198-b [5]). Labor Law § 218 also provides for administrative enforcement of section 198-b by the Commissioner of the Department of Labor. The statute empowers the Commissioner to grant affected employees restitution and liquidated damages in addition to imposing civil penalties. * * *

… [W]e apply a three-factor test to determine whether the legislative intent favors an implied right: “‘(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme'” … . * * *

The statutory scheme … expressly provides two robust enforcement mechanisms, “indicating that the legislature considered how best to effectuate its intent and provided the avenues for relief it deemed warranted” … . Konkur v Utica Academy of Science Charter Sch., 2022 NY Slip Op 00911, CtApp 2-10-22

 

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ANSWERING A CERTIFIED QUESTION FROM THE SECOND CIRCUIT, THE COURT OF APPEALS DETERMINED THE RELEVANT PROVISIONS OF THE CIVIL SERVICE COLLECTIVE BARGAINING AGREEMENTS (CBA’S) DID NOT PROVIDE RETIREES WITH A VESTED RIGHT SUCH THAT THE HEALTH INSURANCE BENEFITS AWARDED AT RETIREMENT WOULD NOT BE REDUCED BY THE PROVISIONS OF SUBSEQUENT CBA’S (CT APP).

The Court of Appeals, addressing certified questions from the US Court of Appeals, Second Circuit, determined the relevant provisions of the civil-service collective bargaining agreements (CBA’s) did not create a vested right in the health insurance benefits afforded retirees. In other words, the CBA’s did not provide that the coverage of health insurance premiums vested at retirement such that reductions in coverage in subsequent CBA’s would not apply:

… [N]one of the CBA provisions identified by the Second Circuit in the first certified question establish a vested right to lifetime fixed premium contributions, either singly or in combination. Donohue v Cuomo, 2022 NY Slip Op 00910, CtApp 2-10-22

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THE WAIVER OF APPEAL WAS INVALID; THE PLEA COURT CONFLATED THE RIGHT TO APPEAL WITH THE RIGHTS FORFEITED BY A GUILTY PLEA; CASE REMITTED TO THE APPELLATE DIVISION FOR CONSIDERATION OF THE SUPPRESSION CLAIM (CT APP).

The Court of Appeals, reversing the Appellate Division and remitting the case for consideration of the suppression claim, upon the People’s concession, determined the waiver of appeal was invalid:

… [O]rder reversed and case remitted to the Appellate Division, Second Department, for further proceedings. Under the totality of the circumstances and upon the People’s concession that the appeal waiver was invalid because the plea court conflated the right to appeal with those rights automatically forfeited by a guilty plea, defendant’s appeal waiver did not foreclose consideration of his suppression claim … . People v Johnson, 2022 NY Slip Op 00909, CtApp 2-10-22

 

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