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GENERAL BUSINESS LAW 349 DECEPTIVE BUSINESS PRACTICES CAUSE OF ACTION IN THE CONTEXT OF A RENT STABILIZATION LAW (RSL) RENT-OVERCHARGE SUIT WAS PROPERLY DISMISSED (CT APP).

The Court of Appeals, over a partial dissent, determined the General Business Law 349 cause of action alleging deceptive business practices in the context of the Rent Stabilization Law (RSL) rent-overcharge suit was properly dismissed:

… General Business Law … , section 349 prohibits “deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state” … . We have held that this statute “cannot fairly be understood to mean that everyone who acts unlawfully, and does not admit the transgression, is being deceptive'” within the meaning of section 349 … . For purposes of this appeal, we assume without deciding that a claim may lie under General Business Law § 349 based upon a landlord’s alleged misrepresentation to the public that an apartment was exempt from rent regulation following deregulation in violation of the Rent Stabilization Law. Here, however, plaintiffs alleged only that defendants failed to admit that they violated the Rent Stabilization Law in deregulating plaintiffs’ apartments—three of which were, in fact, never deregulated—rather than any affirmative conduct that would tend to deceive consumers. Inasmuch as plaintiffs failed to allege more than “bare legal conclusions” … regarding the existence of consumer-oriented, deceptive acts … , their General Business Law claim was properly dismissed. Collazo v Netherland Prop. Assets LLC, 2020 NY Slip Op 02128, CtApp 4-2-20

 

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THE HOUSING STABILITY AND TENANT PROTECTION ACT OF 2019 (HSTPA) DOES NOT APPLY RETROACTIVELY TO RENT OVERCHARGE ACTIONS UNDER THE RENT STABILIZATION LAW (RSL) COMMENCED BEFORE THE COURT OF APPEALS RULING IN ROBERTS (CT APP).

The Court of Appeals, in a per curiam opinion, over a three-judge dissent, determined the Housing Stability and Tenant Protection Act of 2019 (HSTPA) did not apply retroactively to extend the look back period for rent overcharge actions from four to six years, and did not alter the overcharge calculation methodology for pre-Roberts actions. The opinion and the dissent are too comprehensive and detailed to fairly summarize here:

… [T]hese four appeals … present a common issue under the Rent Stabilization Law (RSL): what is the proper method for calculating the recoverable rent overcharge for New York City apartments that were improperly removed from rent stabilization during receipt of J-51 benefits prior to our 2009 decision in Roberts v Tishman Speyer Props., L.P. (13 NY3d 270 [2009]). …

… [T]he HSTPA includes amendments that, among other things, extend the statute of limitations [and] alter the method for determining legal regulated rent for overcharge purposes and substantially expand the nature and scope of owner liability in rent overcharge cases … . The tenants in these cases urge us to apply the new overcharge calculation provisions to these appeals that were pending at the time of the HSTPA’s enactment, some of which seek recovery of overcharges incurred more than a decade before the new legislation. * * *

We … decline to create a new exception to the lookback rule and instead clarify that, under pre-HSTPA law, the four-year lookback rule and standard method of calculating legal regulated rent govern in Roberts overcharge cases, absent fraud. * * *

We conclude that the overcharge calculation amendments [enacted by the HSTPA] cannot be applied retroactively to overcharges that occurred prior to their enactment. Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, 2020 NY Slip Op 02127, CtApp 4-2-20

 

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BECAUSE THE DEFENDANT WAS MADE AWARE OF THE POSSIBILITY OF DEPORTATION MONTHS BEFORE HE PLED GUILTY, HIS ARGUMENT THAT THE TRIAL JUDGE DID NOT INFORM HIM OF THE IMMIGRATION CONSEQUENCES OF HIS PLEA WAS SUBJECT TO THE PRESERVATION REQUIREMENT; THE FAILURE TO PRESERVE THE ERROR PRECLUDED APPEAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a three-judge concurrence, determined defendant’s argument that the trial judge failed to inform him of the deportation consequences of his plea to a felony was subject to the preservation requirement. The defendant’s failure to preserve the error precluded appeal:

“[D]ue process compels a trial court to apprise a defendant that, if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony” … . However, before we may consider whether a trial court fulfilled that obligation, we must determine whether a defendant preserved the claim as a matter of law for our review or whether an exception to the preservation doctrine applies … . Here, service on defendant, in open court and months before the plea proceedings, of a “Notice of Immigration Consequences” form provided him with a reasonable opportunity to object to the plea court’s failure to advise him of the potential deportation consequences of his plea, making the narrow exception to the preservation doctrine unavailable to him … . * * *

“Generally, in order to preserve a claim that a guilty plea is invalid, a defendant must move to withdraw the plea on the same grounds subsequently alleged on appeal or else file a motion to vacate the judgment of conviction pursuant to CPL 440.10” (Peque, 22 NY3d at 182). While reiterating this rule in Peque, we also acknowledged that “where a defendant has no practical ability to object to an error in a plea allocution which is clear from the face of the record, preservation is not required” (id.). This exception to the preservation requirement, however, remains narrow … . * * *

The very first sentence of the Notice explicitly told defendant that “a plea of guilty to any offense” could “subject[] [him] to a risk that adverse consequences w[ould] be imposed on [him] by the United States immigration authorities, including, but not limited to, removal from the United States . . . .” It further noted that, among other things, a conviction for “burglary . . . or any other theft-related offense . . . for which a sentence of one year or more is imposed” would be deportable.

Those unambiguous statements provided defendant with sufficient notice of possible immigration consequences, including deportation, of his conviction, giving him “a reasonable opportunity” to express concerns to the court — during either his plea or at sentencing — regarding those consequences … . People v Delorbe, 2020 NY Slip Op 02126, CtApp 3-31-20

 

JUDICIARY LAW 487 APPLIES ONLY TO MISREPRESENTATIONS BY AN ATTORNEY WHICH ARE MADE IN THE COURSE OF A LAWSUIT; THE STATUTE DOES NOT APPLY WHERE, AS HERE, THE ALLEGED MISREPRESENTATIONS WERE MADE TO INDUCE PLAINTIFFS TO START A MERITLESS LAWSUIT TO GENERATE A LEGAL FEE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over an extensive dissenting opinion, determined the Judiciary Law 487 cause of action, based upon the allegation plaintiffs’ attorneys (defendants) deceitfully induced plaintiffs to bring a meritless lawsuit in order to generate a legal fee, was properly dismissed. A Judiciary Law 487 cause of action lies only if misrepresentations are made in the course of litigation, as opposed to, as here, before litigation is commenced:

Here … defendants established prima facie entitlement to judgment as a matter of law on the Judiciary Law § 487 (1) claim by demonstrating that plaintiffs failed to allege that defendants engaged in deceit or collusion during the course of the underlying federal intellectual property lawsuit … . In response, plaintiffs failed to satisfy their burden to establish material, triable issues of fact … . The affidavits plaintiffs submitted in opposition to summary judgment did not allege that defendants committed any acts of deceit or collusion during the pendency of the underlying federal lawsuit. To the extent defendants were alleged to have made deceitful statements, plaintiffs’ allegation that defendants induced them to file a meritless lawsuit based on misleading legal advice preceding commencement of the lawsuit is not meaningfully distinguishable from the conduct we deemed insufficient to state a viable attorney deceit claim in Looff (97 NY at 482). The statute does not encompass the filing of a pleading or brief containing nonmeritorious legal arguments, as such statements cannot support a claim under the statute … . Similarly, even assuming it constituted deceit or collusion, defendants’ alleged months-long delay in informing plaintiffs that their federal lawsuit had been dismissed occurred after the litigation had ended and therefore falls outside the scope of Judiciary Law § 487 (1). Thus, plaintiffs’ Judiciary Law § 487 cause of action was properly dismissed. Bill Birds, Inc. v Stein Law Firm, P.C., 2020 NY Slip Op 02125, CtApp 3-31-20

 

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A FRYE HEARING SHOULD HAVE BEEN HELD TO DETERMINE THE ADMISSIBILITY OF THE LOW COPY NUMBER (LCN) DNA EVIDENCE AND THE EFFICACY OF A FORENSIC STATISTICAL TOOL (FST); THE ERROR WAS HARMLESS HOWEVER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a three-judge concurrence, ruled a Frye hearing should have been held to the determine admissibility of low copy number (LCN) DNA evidence and the efficacy of the forensic statistical tool (FST) used to conduct the statistical analysis. The abuse of discretion was deemed harmless however:

At the time this motion practice was initiated no court had completed a Frye hearing with respect to the FST, and only one court—namely, the Megnath (27 Misc 3d 405) court …—had conducted such a hearing with respect to LCN testing.  * * *

… [T]here was “marked conflict” with respect to the reliability of LCN DNA within the relevant scientific community at the time the LCN issue was litigated in this case … . * * *

… FST is a proprietary program exclusively developed and controlled by [the New York City Office of Chief Medical Examiner (OCME)]. The sole developer and the sole user are the same. That is not “an appropriate substitute for the thoughtful exchange of ideas . . . envisioned by Frye” … . It is an invitation to bias. People v Williams, 2020 NY Slip Op 02123, CtApp 3-31-20

Similar issues and result in People v Foster-Bey, 2020 NY Slip Op 02124, CtApp 3-31-20

 

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NEW JERSEY CONVICTION FOR LEWDNESS, ALTHOUGH NOT A REGISTRABLE OFFENSE IN NEW JERSEY, IS THE EQUIVALENT OF ENDANGERING THE WELFARE OF A CHILD; IT IS APPROPRIATE TO CONSIDER THE CONDUCT UNDERLYING THE FOREIGN OFFENSE IN ADDITION TO THE ELEMENTS OF THE OFFENSE; 30 POINT ASSESSMENT BASED ON THE NEW JERSEY CONVICTION WAS CORRECT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a concurrence and a two-judge dissent, determined defendant was properly assessed 30 points based upon his prior New Jersey conviction for lewdness. The New Jersey offense, based upon defendant’s repeatedly exposing himself to the 12-year-old victim,  was deemed the equivalent of New York’s endangering the welfare of a child:

At the SORA court hearing, defendant challenged the assessment of 30 points under risk factor 9, asserting that his New Jersey lewdness conviction was neither a registrable offense in New Jersey nor did the comparable offense under New York law—public lewdness (a misdemeanor)—subject defendant to SORA registration in New York … . * * *

At the outset, we must resolve whether reliance on the underlying conduct of a prior foreign conviction is appropriate as a matter of law for purposes of assessing points under risk factor 9 when conducting a SORA risk-level determination. Under these circumstances, we hold that it is. * * *

Our analysis of the New Jersey conviction starts with North v Board of Examiners of Sex Offenders of State of New York, wherein we considered whether the defendant was required to register as a sex offender as a result of his federal conviction for possession of child pornography (8 NY3d 745 [2007]). That question turned on the “essential elements” provision in SORA, which defines “sex offense,” in relevant part, as “a conviction of an offense in any other jurisdiction which includes all of the essential elements of any [registrable sex offense in New York listed in section 168-a (2) of the Correction Law]” … . We concluded that, with respect to registrable offenses, the “essential elements” provision “requires registration whenever an individual is convicted of criminal conduct in a foreign jurisdiction that, if committed in New York, would have amounted to a registrable New York offense” … . …

In the SORA registration context … we [have held] that the strict equivalency standard was “not the optimal vehicle to effectuate SORA’s remedial purposes” and it was thus appropriate to utilize a more flexible approach that allowed consideration of the underlying conduct of a foreign conviction in addition to comparing the essential elements of the foreign and New York offense … . People v Perez, 2020 NY Slip Op 02096, CtApp 3-26-20

 

WORKERS’ COMPENSATION BOARD DEPARTED FROM ITS PRECEDENT WITHOUT AN EXPLANATION, MATTER REMANDED TO THE BOARD (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, remanding the matter to the Workers’ Compensation Board, determined the Court could not rule on the appeal because the Board did not place on the record its reasons for departing from its own precedent. Claimant retired after she was injured and the Board held that she did not have to demonstrate efforts to get work in order to obtain benefits:

… [T]he Board now maintains that it departed from its administrative precedent by applying a discretionary inference in favor of claimant as permitted by Matter of Zamora v New York Neurologic Assoc. (19 NY3d 186 [2012]), without first requiring claimant to present evidence of her efforts to obtain work or get retrained. All parties agree that pursuant to Zamora the Board may, but need not, infer from the fact that a claimant involuntarily retired due to claimant’s permanent partial disability that the claimant’s reduced post-accident earnings resulted from that disability … . All parties also agree that once initially so classified, a claimant entitled under Workers’ Compensation Law (“WCL”) § 15 (3) (w) to compensation for the disability-related loss of wage-earning capacity need not demonstrate ongoing efforts to work or retrain for work after classification under the 2017 amendment to that provision. Given the parties’ agreement on the applicable law, and the Board’s representation that it departed from its purported precedent without explanation, we reverse and remit so that the Board may clarify its rationale and issue a decision in accordance with Zamora, which should include an explanation if it chooses to depart from an evidentiary requirement imposed on similarly situated claimants in prior proceedings. Matter of O’Donnell v Erie County, 2020 NY Slip Op 02095, CtApp 3-26-20

 

CLAIMANT, A COURIER, WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT BENEFITS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, reversing the Appellate Division, over a concurrence and a two-judge dissent, determined the claimant courier was an employee of Postmates and was therefore entitled to unemployment benefits:

Postmates is a delivery business that uses a website and smartphone application to dispatch couriers to pick-up and deliver goods from local restaurants and stores to customers in cities across the United States—deliveries that are, for the most part, completed within an hour. Postmates solicits and hires its couriers, who undergo background checks before being approved to work by Postmates. Once they are approved, the couriers decide when to log into the application and which delivery jobs to accept. Once a courier accepts a delivery job made available through the application, the courier receives additional information about the job from Postmates, including the destination for the delivery. After completing a job, Postmates pays the couriers 80% of the delivery fees charged to customers, and payments are made by the customer directly to Postmates, which pays its couriers even when the fees are not collected from customers. Couriers’ pay and the delivery fee are both nonnegotiable. * * *

Postmates exercises more than “incidental control” over its couriers—low-paid workers performing unskilled labor who possess limited discretion over how to do their jobs. That the couriers retain some independence to choose their work schedule and delivery route does not mean that they have actual control over their work or the service Postmates provides its customers; indeed, there is substantial evidence for the Board’s conclusion that Postmates dominates the significant aspects of its couriers’ work by dictating to which customers they can deliver, where to deliver the requested items, effectively limiting the time frame for delivery and controlling all aspects of pricing and payment. Matter of Vega (Postmates Inc.–Commissioner of Labor), 2020 NY Slip Op 02094, CtApp 3-26-20

 

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NON-MANDATORY STANDARDS FOR THE GAP BETWEEN A SUBWAY TRAIN AND THE PLATFORM PROPERLY ADMITTED IN THIS SLIP AND FALL CASE; HOWEVER THE EVIDENCE OF PRIOR GAP-RELATED ACCIDENTS SHOULD NOT HAVE BEEN ADMITTED; NEW TRIAL ORDERED (CT APP).

The Court of Appeals, ordering a new trial, in a brief memorandum with no description of the facts, determined evidence of prior accidents involving the gap between the subway train and the platform should not have been admitted because there was no showing the conditions were the same. However the evidence of the non-mandatory gap standards were properly admitted:

In these circumstances, the trial court properly admitted plaintiff’s expert testimony regarding non-mandatory gap standards promulgated by the American Public Transit Association and the Public Transportation Safety Board … . However, Supreme Court abused its discretion as a matter of law by admitting evidence of prior accidents at New York City subway stations involving the gap between the train car and platform in the absence of a showing that the relevant conditions of those accidents were substantially the same as plaintiff’s accident … . Daniels v New York City Tr. Auth., 2020 NY Slip Op 02027, CtApp 3-24-20

 

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TESTIMONY SUPPORTING THE ADMISSION OF DNA PROFILES WAS HEARSAY WHICH VIOLATED THE CONFRONTATION CLAUSE (CT APP). ​

The Court of Appeals, reversing defendant’s conviction, over a concurrence, determined the testimony which formed the basis for the admission in evidence of DNA profiles was hearsay which violated the Confrontation Clause:

In People v John, we held that, when confronted with testimonial DNA evidence at trial, a defendant is entitled to cross-examine “an analyst who witnessed, performed or supervised the generation of defendant’s DNA profile, or who used his or her independent analysis on the raw data” (27 NY3d 294, 315 [2016]). In People v Austin, we reiterated that a testifying analyst who did not participate in the generation of a testimonial DNA profile satisfies the Confrontation Clause’s requirements only if the analyst “used his or her independent analysis on the raw data to arrive at his or her own conclusions” (30 NY3d 98, 105 [2017] … ). The records before us do not establish that the testifying analyst had such a role in either case. Accordingly, because the analyst’s hearsay testimony as to the DNA profiles developed from the post-arrest buccal swabs “easily satisfies the primary purpose test” for determining whether evidence is testimonial … , we conclude that her testimony and the admission of those DNA profiles into evidence, over defendants’ objections, violated defendants’ confrontation rights. People v Tsintzelis, 2020 NY Slip Op 02026, CtApp 3-24-20

 

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