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PUBLIC HEALTH LAW 230 DOES NOT CREATE A PRIVATE RIGHT OF ACTION FOR MALICIOUS REPORTING OF INSURANCE FRAUD BY A PHYSICIAN TO THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined that Public Health Law 230 (11) (b) does not create a private right of action. Plaintiff surgeon provided medical care to four patients injured in an automobile accident and submitted claims for payment to the defendant insurer. The insurer fully or partially denied the claims and then filed complaints against plaintiff with the Office of Professional Medical Conduct (OPMC) alleging insurance fraud. The OPMC declined to discipline plaintiff. Plaintiff then sued defendant insurer for bad-faith and malicious reporting in violation of Public Health Law 230 (11) (b). The Court of Appeals noted a split of authority in the 1st and 2nd Departments re: whether a violation of this statute give rise to a private right of action:

Public Health Law § 230 (11) (b) does not expressly create a cause of action authorizing licensees to commence civil litigation against a complainant that files an allegedly bad-faith and/or malicious report with OPMC (compare Public Health Law § 230 [10] [j] [creating an express right to commence a CPLR article 78 proceeding in certain instances]). Consequently, “recovery may be had . . . only if a legislative intent to create such a right of action is fairly implied in the statutory provision[] and [its] legislative history” … . …

We have consistently identified three “essential factors” to be considered in determining whether a private right of action can be fairly implied from the statutory text and legislative history: “(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”… . Critically, all three factors must be satisfied before an implied private right of action will be recognized … . Applying these factors here, we conclude that the legislature did not intend to create a right of action under Public Health Law § 230 (11) (b). Haar v Nationwide Mut. Fire Ins. Co., 2019 NY Slip Op 08445, CtApp 11-21-19

 

DISPUTE BETWEEN RIVAL FACTIONS OF THE CAYUGA NATION INVOLVES TRIBAL LAW AND IS NOT THEREFORE WITHIN THE JURISDICTION OF NEW YORK COURTS (CT APP).

The Court of Appeals, in a lengthy, comprehensive opinion by Judge Feinman, over two dissenting opinions, determined the dispute between two factions of the Cayuga Nation involved tribal law and therefore was not within the jurisdiction of New York courts. The opinion is too detailed to fairly summarize here:

Members of the Cayuga Nation, a federally-recognized Indian tribe, have been embroiled in a leadership dispute for more than a decade. One faction commenced this action, purportedly on behalf of the Nation, against individuals comprising the rival faction, asserting tort claims that are premised solely on defendants’ alleged lack of authority to act on behalf of the Nation. To resolve these claims, New York courts would have to decide whether defendants were, at various times, or remain legitimate leaders of the tribe, a question that turns on disputed issues of tribal law that are not cognizable in the courts of this state given the Nation’s exclusive authority over its internal affairs. Contrary to plaintiff’s contentions, we cannot avoid this fundamental jurisdictional problem by decontextualizing a limited recognition determination issued by the Federal Bureau of Indian Affairs (BIA) that recognized the plaintiff faction as the tribal government for the purpose of distributing federal funds. We therefore hold that New York courts lack subject matter jurisdiction to consider this dispute. Cayuga Nation v Campbell, 2019 NY Slip Op 07711, CtApp 10-29-19

 

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DEFENDANT WAS ACQUITTED OF MURDER AFTER IMPRISONMENT FOR TWO AND A HALF YEARS; HIS FALSE ARREST AND MALICIOUS PROSECUTION ACTION WAS PROPERLY DISMISSED AT THE SUMMARY JUDGMENT STAGE; TWO-JUDGE DISSENT ARGUED CONTESTED FACTS REQUIRED A TRIAL (CT APP).

The Court of Appeals, in a one-sentence memorandum decision, over a two-judge dissenting opinion, determined that the defendants’ motion for summary judgment in this false arrest/malicious prosecution case was properly granted. The dissenters argued contested facts required a trial:

The order of the Appellate Division should be affirmed, with costs. Plaintiff failed to raise any material, triable issue of fact with respect to whether probable cause for his arrest and prosecution was lacking, or as to whether the police acted with actual malice (see generally De Lourdes Torres v Jones, 26 NY3d 742 [2016]).

From the dissent:

A jury acquitted plaintiff Wayne Roberts of murder in the second degree and related charges. He then sued the City of New York, the City Police Department and various police officers for, amongst other claims, false arrest and malicious prosecution. In his complaint, plaintiff asserted that he was wrongfully accused and imprisoned for two and half years, and maliciously prosecuted despite the lack of probable cause to arrest and legal justification to pursue his criminal prosecution. He claimed defendants acted with malice and in bad faith, in deliberate indifference to his rights. * * *

Where, as here, conflicting evidence creates one or more material issues of fact, those issues “must be resolved by the jury rather than by the court as a matter of law” (De Lourdes Torres, 26 NY3d at 771). The decision in this Court and the majority decision below both defy this basic principle. Roberts v City of New York, 2019 NY Slip Op 07713, CtApp 10-29-19

 

THE TOP COUNT OF A MISDEMEANOR COMPLAINT WAS NOT SUPPORTED BY SWORN ALLEGATIONS OF FACT, BUT THE LESSER COUNTS WERE SUPPORTED; A GUILTY PLEA TO THE JURISDICTIONALLY DEFECTIVE TOP COUNT DID NOT WAIVE THE DEFECT AND DEFENDANT’S CONVICTION WAS PROPERLY REVERSED (CT APP).

The Court of Appeals, in a two sentence memorandum decision, followed by two lengthy concurring opinions, and a lengthy three-judge dissenting opinion, determined the Appellate Term properly reversed defendant’s guilty plea to a jurisdictionally defective count of a misdemeanor complaint. The top count of the misdemeanor complaint (oxycodone possession) was not sufficiently supported by the factual deposition, but the lesser counts of the complaint (marijuana possession) were supported. Defendant pled guilty to the top count. Defendant’s guilty plea did not waive the jurisdictional defect:

Even if the accusatory instrument properly sets out a lower-grade offense, a defendant’s challenge to a conviction based on the jurisdictional deficiency of a higher-grade crime of a multi-count complaint is not waived by the defendant’s guilty plea. The Appellate Term properly reversed the judgment of conviction and sentence on the ground “that it was jurisdictionally defective as to the crime of which defendant was actually convicted” (People v Hightower, 18 NY3d 249, 254 [2011]). People v Thiam, 2019 NY Slip Op 07712, CtApp 1-29-19

 

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PURSUANT TO THE NYC ADMINISTRATIVE CODE, OUT-OF-POSSESSION LANDLORDS ARE RESPONSIBLE FOR THE REMOVAL OF ICE AND SNOW FROM THE ABUTTING CITY SIDEWALKS, NOTWITHSTANDING AN AGREEMENT MAKING THE TENANT RESPONSIBLE; THE OUT-POSSESSION-LANDLORDS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED BY THE APPELLATE DIVISION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing the Appellate Division, determined that the NYC  Administrative Code provision which requires the abutting landowners to maintain the city sidewalks applies to out-of-possession landlords, even where the tenant is responsible for maintaining the sidewalks under the lease:

Section 7-210 of the Administrative Code of the City of New York unambiguously imposes a nondelegable duty on certain real property owners to maintain City sidewalks abutting their land in a reasonably safe condition. Under this duty of care, a subject owner is liable for personal injury claims arising from the owner’s negligent failure to remove snow and ice from the sidewalk (id. § 7-210 [b]). The Code makes no exception for out-of-possession landowners and so we hold that the duty applies with full force notwithstanding an owner’s transfer of possession to a lessee or maintenance agreement with a nonowner. Thus, defendants are not entitled to summary judgment as a matter of law due solely to the owners’ out-of-possession status. Xiang Fu He v Troon Mgt., Inc., 2019 NY Slip Op 07643, CtApp 10-24-19

 

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A REGULATORY AGREEMENT ENTERED INTO BY THE OUT-OF-POSSESSION LANDLORD IN CONNECTION WITH AN FHA MORTGAGE, WHICH REQUIRED THAT THE LANDLORD KEEP THE PROPERTY IN GOOD REPAIR, DID NOT CHANGE THE TERMS OF THE LEASE WHICH MADE THE TENANT RESPONSIBLE FOR REPAIRS; THE OUT-OF-POSSESSION LANDLORD THEREFORE IS NOT LIABLE FOR A SLIP AND FALL CAUSED BY A ROOF LEAK (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a two-judge dissenting opinion, determined the owner of a nursing home, Hamilton Inc., as an out-of-possession landlord, was not liable to plaintiff who slipped and fell on the premises. It was alleged the pool of water which caused plaintiff to slip and fall was the result of a leak in the roof. The lease had made the tenant, Grand Manor, responsible for repairs. However a HUD regulatory agreement subsequently entered into by Hamilton Inc in connection with an FHA mortgage required that the property be kept in good repair by Hamilton. The Court of Appeals held that the regulatory agreement did change the terms of the lease:

… [T]he HUD regulatory agreement, as incorporated into the 1978 amendment to the lease, did not alter the contractual relationship between the Hamilton defendants and Grand Manor regarding control of the premises or replace Grand Manor’s contractual duty to perform maintenance and repairs at the facility. Although the terms of the HUD agreement were to supersede all other requirements in conflict therewith, the regulatory agreement did not conflict with, or absolve Grand Manor of, its responsibilities under the original lease. Indeed, as previously noted, the amendment continued all terms from the lease that did not conflict with the regulatory agreement. Given the absence of a conflict on the issue of Grand Manor’s duties to make repairs, the HUD agreement, as incorporated into the lease amendment, was not a covenant that could be said to displace Grand Manor’s duties or alter the relationship between landlord and tenant … .  * * *

… [T]he “exception to the general rule” set forth in Putnam is inapplicable to the regulatory agreement, and the general rule applies — that is, the “landlord is not liable for conditions upon the land after the transfer of possession” (38 NY2d at 617). Indeed, adoption of plaintiff’s proposed rule — that would require us to extend the exception set forth in Putnam to any agreement made by the lessor to make repairs — would mean that lessees could assume the sole obligation in a lease to maintain premises in good repair but avoid making repairs in reliance on a covenant later discovered between the land owner and a third party, a result not intended or supported by Putnam. Henry v Hamilton Equities, Inc., 2019 NY Slip Op 07642, CtApp 10-24-19

 

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THE APPEAL OF AN UNPRESERVED ISSUE DID NOT PRESENT A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS, THREE JUDGES DISSENTED (CT APP).

The Court of Appeals, over an extensive two-judge dissenting opinion, and another dissent, determined that the modification by the Appellate Division could not be appealed:

“[A]n Appellate Division reversal [or modification] based on an unpreserved error is considered an exercise of the Appellate Division’s interest of justice power” … . Moreover, the Appellate Division’s characterization of its own holding (i.e., “on the law” or “on the facts”) is not binding; in determining jurisdiction, we look behind that characterization to discern the basis of the ruling … . …

Here, it is undisputed that, in vacating the first-degree robbery count (without disturbing the second-degree robbery convictions …), the Appellate Division relied upon an unpreserved argument concerning the proper interpretation of and minimum proof required to establish the weapon display element of the first-degree offense … . As we have repeatedly recognized, for jurisdictional purposes an unpreserved issue of this nature does not present a question of law. Thus, the Appellate Division determination — the basis of the order of modification — was not “on the law alone” but was necessarily made as a matter of discretion in the interest of justice … . People v Allende, 2019 NY Slip Op 07523, Ct App 10-22-19

 

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PROOF PRESENTED TO THE GRAND JURY DID NOT SUPPORT ATTEMPTED THIRD OR FOURTH DEGREE LARCENY, APPELLATE DIVISION REVERSED (CT APP).

The Court of Appeals, reversing (modifying) the Appellate Division, determined the evidence presented to the grand jury was not sufficient to support attempted third or fourth degree larceny. Apparently defendant used a sticky object to “fish” mail out of a mailbox. Although there were money orders in the mailbox, the money orders were not stuck to the object:

Viewed in the light most favorable to the People, the evidence presented to the grand jury was insufficient to demonstrate that defendant came dangerously close to taking property valued in excess of $3,000 or $1,000. There was no evidence that the items attached to defendant’s mailbox fishing apparatus had any monetary value, no evidence of the volume of the mail contained in the mailbox or whether it was physically possible for defendant to procure the two money orders deposited in the mailbox by the government investigators amidst the other mail, no evidence as to whether the fishing device was immediately reusable, and no evidence that defendant intended to make successive attempts at fishing out the contents of the mailbox in question. Furthermore, the fact that defendant stated he would be paid $100 for each mailbox fished does not establish that he came dangerously close to stealing property valued at more than $3,000 or $1,000. People v Deleon, 2019 NY Slip Op 07522, CtApp 10-22-19

 

JUROR MISCONDUCT WARRANTED A NEW TRIAL IN THIS MURDER CASE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, affirming the Appellate Division, determined juror misconduct deprived defendant [Dr. Neulander] of a fair trial:

The Appellate Division concluded that the trial court abused its discretion by denying [defendant’s] CPL 330.30 motion to set aside the verdict against him based on that juror misconduct. … [H]e is entitled to a new trial. “Nothing is more basic to the criminal process than the right of an accused to a trial by an impartial jury” … .

… [A] jury convicted Dr. Neulander of murdering his wife and tampering with physical evidence. Throughout the trial, one of the jurors, Juror 12, sent and received hundreds of text messages about the case. Certain text messages sent and received by Juror 12 were troublesome and inconsistent with the trial court’s repeated instructions not to discuss the case with any person and to report any attempts by anyone to discuss the case with a juror. Juror 12 also accessed local media websites that were covering the trial extensively. In order to hide her misconduct, Juror 12 lied under oath to the court, deceived the People and the court by providing a false affidavit and tendering doctored text message exchanges in support of that affidavit, selectively deleted other text messages she deemed “problematic,” and deleted her now-irretrievable internet browsing history. The cumulative effect of Juror 12’s extreme deception and dishonesty compels us to conclude that her “improper conduct . . . may have affected a substantial right of defendant” (CPL 330.30[2]). People v Neulander, 2019 NY Slip Op 07521, CtApp 10-22-19

 

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DEPARTMENT OF ENVIRONMENTAL CONSERVATION’S (DEC’S) RULING ALLOWING SNOWMOBILES TO USE A ROADWAY IN THE ADIRONDACK PARK UPHELD (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over two dissenting opinions (three judges) held that the determination by the Department of Environmental Conservation (DEC) to allow snowmobiles to use an existing roadway in the Adirondack Park was not irrational and should stand:

Our state’s constitutional commitment to conservation for more than a century has ensured the continued protection of the region’s iconic landscapes while providing extraordinary outdoor recreational experiences to citizens of this state and tourists from around the world. Agencies charged with managing park property must balance, within applicable constitutional, statutory and regulatory constraints, the preeminent interest in maintaining the character of pristine vistas with ensuring appropriate access to remote areas for visitors of varied interests and physical abilities. In this appeal, we review a challenge brought by environmental groups to a determination of the New York State Department of Environmental Conservation (“DEC”) made in consultation with the Adirondack Park Agency (“APA”) that, among other things, permits seasonal snowmobile use on an existing roadway on property recently acquired by the State and added to the Adirondack Forest Preserve. Because we are unpersuaded by petitioners’ contention that the determination either contravenes controlling motor vehicle use restrictions in the Adirondack Park State Land Master Plan (“Master Plan”) and Wild, Scenic and Recreational Rivers System Act (ECL 15-2701 et seq. [“Rivers Act”]) or is otherwise irrational, we affirm the challenged portion of the Appellate Division order. Matter of Adirondack Wild: Friends of the Forest Preserve v New York State Adirondack Park Agency, 2019 NY Slip Op 07520, CtApp 10-22-19

 

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