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GENERAL BUSINESS LAW CAUSES OF ACTION ALLEGING DECEPTIVE PRACTICES AND FALSE ADVERTISING WERE SUFFICIENTLY ALLEGED AGAINST AN INSURER PROVIDING HEALTH INSURANCE TO NEW YORK CITY EMPLOYEES; PLAINTIFF, A RETIRED POLICE OFFICER, ALLEGED DECEPTIVE AND FALSE MARKETING BY THE INSURER INDUCED HIM TO CHOOSE THE INSURER’S PLAN (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined General Business Law sections 349 and 350 applied to a health insurance plan offered to New York City employees. Plaintiff, a retired NYC police officer brought the action in federal court alleging the insurer (GHI) engaged in “deceptive practices” and “false advertising.” The Third Circuit asked the Court of Appeals to rule on whether the General Business Law causes of action were applicable to plaintiff who was a third-party beneficiary of the insurance contract which had been negotiated by sophisticated parties. The insurer argued a contract between sophisticated parties did not raise a “consumer-oriented” issue:

We have explained that, to state a claim under sections 349 or 350, “a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct, that is (2) materially misleading, and that (3) the plaintiff suffered injury as a result of the allegedly deceptive act or practice” … . Thus, a plaintiff claiming the benefit of either section 349 or 350 “must charge conduct of the defendant that is consumer-oriented” or, in other words, “demonstrate that the acts or practices have a broader impact on consumers at large” … . * * *

Here, although there was an underlying insurance contract negotiated by sophisticated entities—only one of which is a party to this action—neither plaintiff, nor any of the other hundreds of thousands of employees and retirees who participated in the GHI Plan, were participants in its negotiation and, critically, that negotiation was followed by an open enrollment period, which exposed City employees and retirees to marketing resembling a traditional consumer sales environment. During the open enrollment period, the employees and retirees could select only one of 11 previously-negotiated health insurance plans offered as part of their compensation and retirement packages from the City, and the insurers were able to market their health care plans directly to the employees and retirees. Significantly, it is the allegedly misleading summary materials that are the subject of plaintiff’s case—not the contract between the City and GHI, which purportedly was never provided to City employees and retirees. Plavin v Group Health Inc., 2020 NY Slip Op 02025, CtApp 3-24-2020

 

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PLAINTIFF WAS INJURED ATTEMPTING TO ENTER A BUILDING FROM A SCAFFOLD THROUGH A WINDOW CUT-OUT; THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS AWARE THAT METHOD OF ENTERING THE BUILDING WAS PROHIBITED BY DEFENDANTS; THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (CT APP).

The Court of Appeals, reversing (modifying) the Appellate Division, over a three-judge dissent, determined defendants’ motion for summary judgment should not have been granted in this Labor Law 240(1) action. Plaintiff was injured when he fell attempting to enter a building from a scaffold through a window cut-out. Although there was evidence of a standing order prohibiting use of that method for entering the building, other workers used that method:

A defendant has no liability under Labor Law § 240 (1) when plaintiffs: (1) “had adequate safety devices available,” (2) “knew both that” the safety devices “were available and that [they were] expected to use them,” (3) “chose for no good reason not to do so,” and (4) would not have been injured had they “not made that choice” … . Here, a triable issue of fact exists as to whether plaintiff knew he was expected to use the safety devices provided to him, despite the apparent accepted practice of entering the building through the window cut-outs from the scaffolding. Indeed, as the Appellate Division dissent concluded, the Appellate Division majority (and the dissent here) “ignore[] the evidence in the record that workers on this job site used the scaffold to go through window cut-outs to enter the interior of the building and that the scaffold was clearly inadequate for that purpose” … .

Given defendants’ purported acquiescence to this alleged practice, the general contractor’s standing order directing workers not to enter the building through the cut-outs is insufficient to entitle defendants to summary judgment … . Further, the accepted practice could have negated the normal and logical inclination to use the scaffold, stairs, or hoist instead of the cut-outs … . Finally, in context and given the other conflicting evidence in the record, a factfinder should determine whether plaintiff’s statement that he “wasn’t supposed to pass through there” unambiguously establishes that he knew he was expected to use the safety devices. Biaca-Neto v Boston Rd. II Hous. Dev. Fund Corp., 2020 NY Slip Op 01116, CtApp 2-18-20

 

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‘RELIABLE HEARSAY’ IN A PRESENTENCE INVESTIGATION (PSI) REPORT IS A SUFFICIENT BASIS FOR A FINDING DEFENDANT USED VIOLENCE IN THE COMMISSION OF A SEX OFFENSE; LEVEL TWO RISK ASSESSMENT UPHELD (CT APP).

The Court of Appeals, over an extensive two-judge dissent, determined documentary evidence of “reliable hearsay” was sufficient for a finding defendant used violence to coerce the child victim in this “course of sexual conduct against a child” case, Therefore defendant was properly adjudicated a level two risk of reoffense:

At a SORA hearing conducted as defendant was nearing completion of his prison sentence, he was adjudicated a level two risk of reoffense due, in part, to the assessment of ten points under risk factor one, use of violence. That finding was based on information in the Presentence Investigation (PSI) report prepared in connection with the offense stating that “[o]n one or more occasions, he used physical force to coerce the victim into cooperation,” information also included in the case summary prepared by the Board of Examiners of Sex Offenders. Defendant argues that this evidence was insufficient to supply evidence of use of violence because it constituted hearsay and did not more specifically describe his conduct. …

SORA adjudications, by design, are typically based on documentary evidence under the statute’s “reliable hearsay” standard. Case summaries and PSI reports meet that standard … , meaning they can provide sufficient evidence to support the imposition of points. PSI reports are prepared by probation officers who investigate the circumstances surrounding the commission of the offense, defendant’s record of delinquency or criminality, family situation and social, employment, economic, educational and personal history, analyzing that data to provide a sentencing recommendation (see CPL 390.30[1]). Their primary function is to assist a criminal court in determining the appropriate sentence for the particular defendant based on the specific offense. Defendants have a right to review the report prior to sentencing (see CPL 390.50[2][a]) and may challenge the accuracy of any facts contained therein at that time (see CPL 400.10). * * *

Because there is record support for the imposition of points under risk factor one, there is no basis to disturb the Appellate Division order. People v Diaz, 2020 NY Slip Op 01114, CtApp 2-18-20

 

THE ERRONEOUSLY UNSEALED RECORD OF A CRIMINAL PROCEEDING TERMINATED IN FAVOR OF THE DEFENDANT SHOULD NOT HAVE BEEN CONSIDERED BY THE SENTENCING COURT, MATTER REMITTED FOR RESENTENCING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing the Appellate Division, over a three-judge dissenting opinion, determined the sentencing court should not have considered the erroneously unsealed records of a prior criminal action which was terminated in favor of the defendant. The matter was sent back for resentencing. “A court is without authority to consider for sentencing purposes erroneously unsealed official records of a prior criminal action or proceeding terminated in favor of the defendant. Where violation of the sealing mandate of CPL 160.50 impacts the ultimate sentence, the error warrants appropriate correction. Such is the case here, where the court imposed on defendant a higher sentence than promised at his plea, based on its finding that the unsealed trial record—which the court mistakenly believed it could consider—established defendant’s violation of a pre-sentence condition of his plea:”

Before sentencing, defendant was arrested and prosecuted for a crime allegedly committed after entering his plea. At defendant’s request, the sentencing court agreed to adjourn defendant’s sentencing pending resolution of the matter. The jury acquitted defendant of the new charge and the official record, including the trial transcript, was sealed in accordance with CPL 160.50.

The day following that acquittal, the prosecutor informed the court which had accepted defendant’s criminal possession plea that the People would be requesting an enhanced sentence on the criminal possession conviction because defendant violated a pre-sentence condition of the plea by engaging in criminal conduct during the sentencing adjournment, as made clear by defendant’s trial testimony in the other case. The prosecutor then moved to unseal the records in the prior criminal action terminated by acquittal, arguing “justice requires” unsealing because the trial testimony was relevant to defendant’s request to be sentenced under the terms of his plea. The court granted the motion. People v Anonymous, 2020 NY Slip Op 01113, CtApp 2-18-20

 

DECEDENT’S WORK AS A WELDER NOT A COVERED ACTIVITY UNDER LABOR LAW 240 (1) (CT APP).

The Court of Appeals, in a one-sentence memorandum, determined the plaintiff was not engaged in an activity covered by Labor Law 240 (1) when he was injured:

Decedent’s work as a welder during the “normal manufacturing process” of fabricating rotor components for air preheaters did not involve “erection, demolition, repairing, altering, painting, cleaning or pointing” of a building or structure (Jock v Fien , 80 NY2d 965, 968 [1992]; Labor Law § 240 [1]).  Preston v APCH, Inc., 2020 NY Slip Op 01000, Ct App 2-13-20

 

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ALTHOUGH TWO OF MOTHER’S FIVE CHILDREN, AS FULL-TIME COLLEGE STUDENTS, WERE INELIGIBLE FOR THE SNAP (FOOD STAMP) PROGRAM, THE ENTIRE AMOUNT OF FATHER’S CHILD SUPPORT PAYMENTS MUST BE CONSIDERED AS HOUSEHOLD INCOME, RENDERING THE FAMILY INELIGIBLE FOR THE SNAP PROGRAM (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined that the child support payments made by father constituted income to mother (Ms. Leggio), not to the children. Therefore, although two of the children are full-time college students and ineligible for the SNAP (food stamp) program, the full amount of the child support must be considered in determining the family’s eligibility for the SNAP program. Applying the full amount of the child support to the mother’s income rendered the family ineligible:

… [I]f Ms. Leggio’s two eldest children are the owners of their pro rata shares of the child support she receives, the household would be eligible for SNAP benefits … . Conversely, if child support funds are considered income of the custodial parent who received them (here, Ms. Leggio) they are household income not subject to any exclusion, and Ms. Leggio’s household’s income would be too high to receive SNAP benefits. Although the consequences of allocating the income are clear, the threshold question, whether child support is income of the recipient-parent or of the beneficiary-child for purposes of determining eligibility for SNAP benefits, is unresolved by any federal or state statute or regulation or decision of this Court.

We conclude that OTDA’s [Office of Temporary and Disability Assistance’s] interpretation of the federal statutes it administers was not irrational and is entitled to deference and thus, for the purposes of SNAP, child support directly received by a parent is household income, even if it is used for the benefit of an ineligible college student living at home. Matter of Leggio v Devine, 2020 NY Slip Op 00999, Ct App 2-13-20

 

INFORMATION CHARGING OBSTRUCTING GOVERNMENT ADMINISTRATION DID NOT INCLUDE FACTUAL ALLEGATIONS DESCRIBING THE OFFICIAL FUNCTION WHICH WAS OBSTRUCTED AND WAS THEREFORE JURISDICTIONALLY DEFECTIVE (CT APP).

The Court of Appeals, reversing the Appellate Term, determined the accusatory information (information) charging defendant with obstructing government administration was jurisidictionally defective because it did not include factual allegations of the official function alleged to have been obstructed:

Defendant was convicted of obstructing governmental administration in the second degree for backing his vehicle away from police officers who were attempting to execute a warrant to search the vehicle. Prior to trial, defendant moved to dismiss the accusatory instrument, arguing that it was facially insufficient because it failed to put him on notice of the “official function” with which he was alleged to have interfered (Penal Law § 195.05). Specifically, defendant asserted that the accusatory instrument was defective because it lacked any reference to the search warrant and alleged in a conclusory fashion that defendant’s actions were intentionally taken to prevent the police officers from “effecting a proper vehicle stop.” …

… [W]ith regard to the “official function” element of the obstruction charge, the accusatory instrument lacked factual allegations providing defendant with notice of the official function with which he was charged with interfering—namely, a police stop of defendant in his vehicle in order to execute a search warrant (Penal Law § 195.05). Defendant therefore lacked sufficient notice to prepare his defense, rendering the information jurisdictionally defective … . People v Wheeler, 2020 NY Slip Op 00998, CtApp 2-13-20

 

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INCREASES IN PAY TO PORT AUTHORITY EXECUTIVE EMPLOYEES, AIMED AT RETAINING THOSE EMPLOYEES IN THE WAKE OF THE 9-11 ATTACKS, SHOULD NOT BE TREATED AS SALARY IN THE CALCULATION OF THOSE EMPLOYEES’ RETIREMENT BENEFITS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, determined certain increases in pay to executive employees of the Port Authority, aimed at retaining those employees in the wake of the 9-11 attacks, should not be treated as salary in the calculation of those employees’ retirement benefits. ” … Retirement and Social Security Law § 431 provides that “[i]n any retirement or pension plan to which the state or municipality thereof contributes, the salary base for the computation of retirement benefits shall in no event include . . . any additional compensation paid in anticipation of retirement” (Retirement and Social Security Law § 431 [3] [emphasis added]):”

… [W]e must … ask whether there is substantial evidence in the record to support the Comptroller’s determination that the Port Authority’s compensation adjustment program constituted “additional compensation paid in anticipation of retirement” (Retirement and Social Security Law § 431 [3]). Under this standard, where substantial evidence exists to support the administrative agency’s determination, a court may not substitute its judgment for that of the agency, even if there is evidence supporting a contrary conclusion … . In order to determine whether the purpose of the compensation was “to circumvent the provisions of Retirement and Social Security Law § 431,” courts ” must look to the substance of the transaction and not to what the parties may label it’ ” … .

Here, the record contains substantial evidence supporting the Comptroller’s determination that the Port Authority provided the compensation adjustments to artificially increase the executive employees’ final average salaries so that, upon retirement, they would receive pension increases roughly equivalent to those they would have received under the retirement incentive program. Indeed, the letter agreements signed by petitioner employees directly referred to a program “designed to provide a limited number of staff members with a parity’ benefit” to make their “pension calculation[s] . . . roughly equivalent to the calculation[s] if [they] had been eligible to retire with the incentive.” Plainly, substantial evidence supports the conclusion that the compensation, by design, was made in anticipation of petitioner employees’ retirement within the meaning of the statute. Matter of Bohlen v DiNapoli, 2020 NY Slip Op 00997, CtApp 2-13-20

 

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DEFENDANT MAY NOT APPEAL OR COLLATERALLY ATTACK AN “ILLEGALLY LENIENT” SENTENCE BECAUSE THE SENTENCE DID NOT ADVERSELY AFFECT THE DEFENDANT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined that the defendant may not appeal from an “illegally lenient” sentence because the sentence did not adversely affect the defendant. The defendant was attempting to have prior sentences declared illegal to avoid a subsequent “persistent felony offender” classification. Defendant had used aliases and had been given “illegally lenient” sentences because the sentencing court was unaware of the prior conviction(s):

The Appellate Division [held] that it could not consider the merits of defendant’s appeal because denial of the motion — leaving in place defendant’s illegally lenient sentence — had not “adversely affected” defendant within the meaning of CPL 470.15 … . When a defendant moves to vacate a sentence on the ground that it is illegally lenient, denial of such a motion is not reviewable because any purported “error or defect in the criminal court proceedings” has not “adversely affected” the defendant (CPL 470.15 [1]). Accordingly, we affirm.

Defendant’s criminal history consists of at least four felony convictions over a fifteen-year period. During this time, it appears that he repeatedly attempted to conceal that history, primarily through the use of aliases. To a remarkable degree, though a recidivist, he avoided enhanced punishment required by statute. Instead, he obtained sentences that were “illegally lenient” given his actual status as a predicate felon. However, in 1997, the court, based on the evidence of defendant’s prior convictions, sentenced him to a term of twenty-three years to life in prison as a persistent violent felony offender (see Penal Law § 70.08). Since then, by direct appeal and collateral attack, defendant has tried to overturn the illegally lenient sentences that were previously imposed based on his incomplete criminal history, with the ultimate goal of invalidating his 1997 persistent violent felony offender sentence. People v Francis, 2020 NY Slip Op 00996, CtApp 2-13-20

 

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DEFENDANT WAS PROPERLY PURSUED AND DETAINED BASED UPON HIS DRINKING FROM A CONTAINER IN A PAPER BAG AND RUNNING INSIDE A NEARBY BUILDING; THE INTENT TO DEFRAUD WAS PROPERLY INFERRED FROM DEFENDANT’S POSSESSION OF BOTH REAL AND COUNTERFEIT BILLS, KEPT SEPARATELY ON HIS PERSON (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over an extensive two-judge dissent, determined defendant was properly pursued and detained after a police officer saw him on the street drinking from a container inside a paper bag and then saw him run inside a nearby building as the officer approached. The Court further determined the intent to defraud could be inferred from the defendant’s possession of counterfeit bills. The defendant had both counterfeit and real money on his person, kept separately. The issues were succinctly described in the dissent:

From the dissent:

The majority lauds the hot pursuit and forcible detention of Clinton Britt, a man drinking a Lime-A-Rita&TLRtrade; wrapped in a brown paper bag in Times Square shortly before midnight, and his subsequent conviction for intending to spend counterfeit money absent any indication that he attempted or planned to use it, simply because it was found rubber-banded separately from his real money when he was searched upon arrest. Both are mistakes.

The first — let’s chase and physically detain people drinking from unseen containers in brown paper bags — is perhaps understandable because of the tremendous difficulty inherent in the mis-application of our De Bour test in many real-world situations. The sad consequence of that mistake is a regression from the legislative and prosecutorial progress eschewing policing based on stereotypes, returning us to the world of broken windows — where police pursue quality of life violations that disproportionately affect the poor (not merely those committing the infractions, but their families, neighbors and communities).

The second — let’s equate the separation of real from counterfeit money with the intent to defraud — is inexplicable. It overturns our clear holding in People v Bailey (13 NY3d 67 [2009]), by contravening the most fundamental proposition of evidence: a fact is not evidence unless it makes the disputed issue more likely to be true than it otherwise would be. Put simply, if you knew you had counterfeit money on your person and did not want to use it, you would keep it separate from your real money. That [defendant] kept his real and fake money separate says nothing about his intent to use it to defraud, deceive or injure anyone, which is a statutory requirement under Penal Law § 170.30. People v Britt, 2019 NY Slip Op 09060, CtApp 12-19-19

 

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