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POLICE OFFICER HAD REASONABLE GROUNDS TO PULL OVER PETITIONER’S CAR AFTER THE CAR CROSSED THE FOG LINE WITH A BLINKER ON AND THEN MOVED BACK INTO THE LANE, REVOCATION OF DRIVER’S LICENSE FOR FAILURE TO SUBMIT TO A CHEMICAL TEST AFFIRMED (CT APP).

The Court of Appeals, over a dissent, determined the stop of defendant’s car was based upon reasonable grounds to believe petitioner had violated Vehicle and Traffic Law 1128. Therefore the revocation of petitioner’s license for refusing to submit to a chemical test was affirmed:

At the administrative hearing, testimony was elicited that, while on patrol at 1:00 AM on December 22, 2013, a police officer observed petitioner’s vehicle “make an erratic movement off the right side of the road, crossing the fog line and [moving] off the shoulder [with the vehicle’s] right front tire.” Once the vehicle left the paved roadway — and with the right-hand turn signal on — the officer saw the vehicle immediately move left, returning to its original lane of travel. After observing that there was no animal or other obstruction of the roadway that would have explained the “erratic jerking action,” the police officer pulled the vehicle over. During the stop, the officer noticed that petitioner smelled of alcohol and exhibited other signs of inebriation. Petitioner admitted that he “had a few drinks” and asked the officer to give him a ride home, failing field sobriety tests and a preliminary breath test given at the scene. At the precinct, despite receiving the appropriate warnings, petitioner refused to take a chemical test, resulting in an administrative license revocation hearing. The police officer’s testimony at the hearing, articulating credible facts to support a reasonable belief that petitioner violated Vehicle and Traffic Law § 1128 (a) (failure to remain in lane), provided substantial evidence that he had probable cause to stop petitioner’s vehicle … . Any negative or adverse inference that was drawn from petitioner’s failure to testify at the administrative revocation hearing was permissible … . Matter of Schoonmaker v New York State Dept. of Motor Vehs., 2019 NY Slip Op 02259, CtApp 3-28-19

 

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DEPARTMENT OF LABOR’S INTERPRETATION OF A WAGE ORDER WHICH ALLOWED 24-HOUR LIVE-IN HOME HEALTH CARE AIDES TO BE PAID FOR 13 HOURS WAS NOT IRRATIONAL OR UNREASONABLE, APPELLATE DIVISION REVERSED, MATTER REMITTED FOR CONSIDERATION OF OTHER GROUNDS FOR CLASS CERTIFICATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge dissent, reversing the Appellate Division, determined that the Department of Labor’s interpretation of a minimum wage order applicable to home health aides was not irrational or unreasonable. The matter was sent back for consideration of other grounds for class certification:

The common issue presented in these joint appeals is whether, pursuant to the New York State Department of Labor’s (DOL) Miscellaneous Industries and Occupations Minimum Wage Order (Wage Order), an employer must pay its home health care aide employees for each hour of a 24-hour shift. DOL has interpreted its Wage Order to require payment for at least 13 hours of a 24-hour shift if the employee is allowed a sleep break of at least 8 hours—and actually receives five hours of uninterrupted sleep—and three hours of meal break time. DOL’s interpretation of its Wage Order does not conflict with the promulgated language, nor has DOL adopted an irrational or unreasonable construction, and so the Appellate Division erred in rejecting that interpretation. Therefore, we reverse the Appellate Division orders and remit for consideration of alternative grounds for class certification for alleged violations of New York’s Labor Law, inclusive of defendants’ alleged systematic denial of wages earned and due, unaddressed by the courts below because of their erroneous rejection of DOL’s interpretation. Andryeyeva v New York Health Care, Inc., 2019 NY Slip Op 02258, CtApp 3-26-19

 

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NYS STATE DIVISION OF HUMAN RIGHTS’ DETERMINATION THAT THE DISABLED COOPERATIVE SHAREHOLDER WAS DISCRIMINATED AGAINST WHEN SHE WAS PROHIBITED FROM KEEPING A DOG IN HER COOPERATIVE APARTMENT CONFIRMED BY THE COURT OF APPEALS, REVERSING THE APPELLATE DIVISION (CT APP).

The Court of Appeals, over a two-judge dissent, in a brief memorandum that did not recite the facts, reversed the Appellate Division and confirmed the NYS Division of Human Rights (SDHR) determination that petitioners had discriminated against the disabled complainant, a cooperative shareholder, by prohibiting her from keeping a dog in the cooperative apartment. Matter of Delkap Mgt., Inc. v New York State Div. of Human Rights, 2019 NY Slip Op 02260, CtApp 3-26-19

​SUMMARY OF THE FACTS FROM THE APPELLATE DIVISION’S DECISION (WHICH THE COURT OF APPEALS REVERSED HERE):

The complainant testified that, since obtaining the dog, her cardiac arrhythmia, which caused her to have rapid heart rate and experience palpitations, had significantly decreased; her ability to sleep had improved, resulting in her feeling less tired during the day; her discomfort due to her rheumatoid arthritis had improved because she was more physically active with the dog; and the dog decreased her stress, helping to improve the symptoms caused by her rheumatoid arthritis and cardiac arrhythmia.

Sometime after the hearing concluded, the petitioners directed the complainant to immediately remove her dog from her apartment contending, erroneously, that the SDHR had issued a final order in their favor. The complainant thereafter moved out of her apartment with the dog.

In a recommendation and findings … an administrative law judge (hereinafter ALJ) of the SDHR determined that the Coop had discriminated against the complainant in the terms, conditions, and privileges of her housing on the basis of her disability, and that she should have been allowed to keep the dog in her apartment as a reasonable accommodation for her disability. The ALJ also determined that the respondents retaliated against the complainant for opposing the discrimination and filing a complaint with the SDHR. The Acting Commissioner of the SDHR adopted the ALJ’s recommendation and findings and directed the petitioners to pay $5,000 to the complainant in compensatory damages for mental anguish and $10,000 in punitive damages, assessed a $5,000 penalty upon each petitioner payable to the State, and directed the petitioners to create and implement standard policies and procedures to evaluate shareholders’ requests for reasonable accommodations and to develop and implement training to prevent unlawful discrimination.

 

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ONCE AN ACTION TO RECOVER THE PRINCIPAL OF A BOND IS TIME-BARRED, THERE IS NO LEGALLY COGNIZABLE CLAIM FOR POST-MATURITY INTEREST (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, determined that a bond issuer is not obligated to pay interest once a claim for the principal is time-barred:

The United States Court of Appeals for the Second Circuit has asked us to decide …  “[i]f a bond issuer remains obligated to make biannual interest payments until the principal is paid, including after the date of maturity … , do enforceable claims for such biannual interest continue to accrue after a claim for principal of the bonds is time-barred?” We answer this question in the negative … . Pursuant to New York common law and the terms of the indenture, in the absence of a timely action to recover principal, a bondholder cannot enforce the conditional obligation to make post-maturity interest payments. * * *

The rule we reiterate today effectuates the agreement negotiated by the parties and reinforces our longstanding view of interest as generally dependent on principal. Moreover, it promotes the purposes underlying the statute of limitations … . For those reasons, we conclude that once a claim on the principal is time-barred, a claim to recover unpaid post-maturity interest payments is not legally cognizable. Ajdler v Province of Mendoza. 2019 NY Slip Op 02151, CtApp 3-21-19

 

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RELATED PUBLIC AUTHORITIES PROPERLY REQUIRED TO FILE SEPARATE REPORTS WITH THE NYS AUTHORITIES BUDGET OFFICE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined that the NYS Authorities Budget Office (ABO) properly required the Madison County Industrial Development Agency (MCIDA) and the related Madison Grant Facilitation Corporation (MGFC) to file separate reports pursuant to the Public Authorities Accountability Act (PAAA) and the Pbblic Authorities Law. MCIDA had filed a single consolidated report and brought an Article 78 proceeding arguing the ABO’s determination that separate reports must be filed was arbitrary and capricious:

The ABO’s narrow record-keeping determination was not contrary to law. The Public Authorities Law plainly provides that a local development corporation such as MGFC, which is “affiliated” with a local IDA, is also a local authority subject to the PAAA and, as such, has reporting obligations (Public Authorities Law § 2 [2] [d]). Regardless of whether MGFC is also a subsidiary, it is clearly an “affiliate” of MCIDA within the meaning of the statute … . The PAAA does not contain a reporting exception for subsidiaries of local authorities, and petitioners have not identified any other statute or regulation that excused MGFC from its obligation to separately report. Matter of Madison County Indus. Dev. Agency v State of New York Auths. Budget Off., 2019 NY Slip Op 02150, CtApp 3-21-19

 

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VILLAGE CODE PROVISION WHICH REQUIRES WRITTEN NOTICE OF A SIDEWALK DEFECT BEFORE MUNICIPAL LIABILITY CAN BE IMPOSED APPLIES TO A STAIRWAY FROM A PUBLIC ROAD TO A MUNICIPAL PARKING LOT, STAIRWAY SLIP AND FALL ACTION PROPERLY DISMISSED (CT APP).

The Court of Appeals, over an extensive two-judge dissent, determined that the village code provision which requires written notice of a sidewalk defect before the village can be held liable applies to a stairway connecting a public road to a municipal parking lot. Because plaintiff did not plead or prove written notice of a stairway defect, plaintiff’s slip and fall action was properly dismissed:

In Woodson v City of New York, this Court determined that a stairway may be classified as a sidewalk for purposes of a prior written notice statute if it “functionally fulfills the same purpose that a standard sidewalk would serve” (93 NY2d 936, 937-938 [1999] …). * * *

The courts below correctly applied Woodson in holding that the stairway at issue “functionally fulfills the same purpose” as a standard sidewalk, and therefore plaintiff was required to show that the Village received prior written notice of the allegedly defective condition … . Hinton v Village of Pulaski, 2019 NY Slip Op 01261, CtApp 2-21-19

 

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MONITORING AND RECORDING PHONE CALLS MADE BY PRETRIAL DETAINEES WHO ARE NOTIFIED THE CALLS ARE MONITORED AND RECORDED DOES NOT VIOLATE THE FOURTH AMENDMENT, THE RECORDINGS MAY BE SHARED WITH LAW ENFORCEMENT AND PROSECUTORS WITHOUT A WARRANT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over a two-judge dissent, determined recording phone conversation of pretrial detainees who are notified the calls are monitored and recorded does not violate the Fourth Amendment. Therefore such recordings can be shared with law enforcement and prosecutors:

… [W]here detainees are aware that their phone calls are being monitored and recorded, all reasonable expectation of privacy in the content of those phone calls is lost, “and there is no legitimate reason to think that the recordings, like any other evidence lawfully discovered, would not be admissible” … . Moreover, the signs posted near the telephones used by the inmates state that calls are monitored in “accordance with DOC policy” which, according to the DOC Operations Order, provides that while recordings are confidential and not available to the public, the District Attorney’s Office may request a copy of an inmate’s recorded calls which will be provided upon approval by DOC … . …

We therefore reject defendant’s argument that he retained a reasonable expectation of privacy once the calls were lawfully intercepted by DOC and hold that there were no additional Fourth Amendment protections that would prevent DOC from releasing the recording to the District Attorney’s Office absent a warrant. People v Diaz, 2019 NY Slip Op 01260, CtApp 2-19-19

 

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RELEASE SIGNED BY PLAINTIFF’S DECEDENT IN 1997 DID NOT ENTITLE CHEVRON TO SUMMARY JUDGMENT IN THIS ASBESTOS-MESOTHELIOMA CASE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a three-judge dissent, determined that defendant Chevron was not entitled to summary judgment in this asbestos-mesothelioma action. Plaintiff’s decedent [Mr. South] signed a release in 1997 and Chevron argued the release precluded the subsequent lawsuit:

Like Supreme Court, the Appellate Division concluded that the record did not demonstrate Chevron’s entitlement to summary judgment, because the release did not specifically mention mesothelioma, which then required the court to determine whether extrinsic evidence entitled Chevron to summary judgment. Pointing to the “meager consideration” [$1,750] and the lack of any diagnosis of mesothelioma as to Mr. South at the time he settled, the Appellate Division concluded that the record left open the question of whether the release pertained to an existing pulmonary condition and the fear of some future asbestos-related disease, or if it was intended to release all future asbestos-related diseases arising from Mr. South’s employment by Texaco. The parties agree that, at the time he executed the release, Mr. South suffered from a nonmalignant pulmonary disease but not from mesothelioma or cancer. …

The sole question presented to us on this appeal is whether Chevron has established that the release, coupled with the 1997 complaint, eliminates all material questions of fact and proves that the release bars the claims here as a matter of law. Answering that question requires us to consider the protections afforded to Mr. South by admiralty law and Section 5 of FELA [Federal Employers’ Liability Act] (45 USC § 55), which is incorporated into the Jones Act by 46 USC § 30104. …

… [W]e conclude that Chevron has not met its burden to demonstrate the absence of any material question of fact. The 1997 release does not unambiguously extinguish a future claim for mesothelioma  … . The release itself does not mention mesothelioma. It does say that Mr. South “is giving up the right to bring an action against the Released Parties, or any of them, in the future for any new or different diagnosis that may be made about Claimant’s condition as a result of exposure to any product[.]” But “claimant’s condition” may cabin the “new or different diagnosis” to ones that related to his nonmalignant asbestos-related pulmonary disease—the “condition” both parties agree was the only one he suffered at the time. Matter of New York City Asbestos Litig., 2019 NY Slip Op 01259, CtApp 2-19-19

 

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THE SOLE REMEDY PROVISION OF THE CONTRACT IN THIS RESIDENTIAL MORTGAGE BACKED SECURITIES CASE, WHICH REQUIRED THAT THE DEFENDANT BE NOTIFIED AND GIVEN THE OPPORTUNITY TO REPURCHASE DEFECTIVE MORTGAGES, WAS NOT COMPLIED WITH PRIOR TO THE RUNNING OF THE STATUTE OF LIMITATIONS, PLAINTIFF’S TIMELY COMPLAINT WAS PROPERLY DISMISSED WITHOUT PREJUDICE, DESPITE THE FAILURE TO COMPLY WITH THE SOLE REMEDY PROVISION, ALLOWING PLAINTIFF TO REFILE THE COMPLAINT WITHIN SIX MONTHS PURSUANT TO CPLR 205 (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that the trustee’s breach of contract action in the residential-mortgage-backed-securities (RMBS) case was properly dismissed without prejudice, allowing plaintiff to refile pursuant to CPLR 205 (which allows a suit to be refiled within six months of a dismissal that is not on the merits). The contractual sole remedy provision, which requires that the defendant (DLJ) be notified and given the opportunity to repurchase any mortgages deemed defective, was not be complied with and the timely complaint was dismissed for that reason:

As a general rule, under CPLR 205 (a) a subsequent action may be filed within six months of a non-merits dismissal of the initial timely-filed matter. Here, we conclude that CPLR 205 (a) applies to an RMBS trustee’s second action when its timely first action is dismissed for failure to comply with a contractual condition precedent. * * *

The difference between a procedural and substantive condition precedent is well-established. A condition precedent is substantive when it “describe[s] acts or events which must occur before a party is obliged to perform a promise made pursuant to an existing contract”… . In other words, the condition is “part of the cause of action and necessary to be alleged and proven, and without this no cause of action exist[s]” … , RMBS notice and sole remedy provisions are not substantive elements of the cause of action, but instead limitations on the remedy for a breach of the mortgage loan representations and warranties … . They serve as a precondition, “a procedural prerequisite to suit,” not a separate undertaking by the trustee … . Since notice and sole remedy provisions “do[] not create a substantive condition precedent” … , they do not affect when the statute of limitations commences because the limitations clock begins to run when the contract is executed.

Nevertheless, DLJ argues that the Trustee had to fulfill the procedural condition precedent before the limitations period expired, and its failure to do so rendered the original action untimely, such that a new action cannot be commenced pursuant to CPLR 205 (a). DLJ’s argument cannot be reconciled with our case law that a suit may be refiled pursuant to CPLR 205 (a) despite a plaintiff’s failure to comply with a condition precedent prior to the expiration of the statute of limitations. U.S. Bank Natl. Assn. v DLJ Mtge. Capital, Inc., 2019 NY Slip Op 01169, CtApp 2-19-19

 

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TRUSTEE’S BREACH OF CONTRACT ACTION IN THIS RESIDENTIAL MORTGAGE BACKED SECURITIES CASE WAS TIME-BARRED, THE ACTION COULD NOT RELATE BACK PURSUANT TO CPLR 203 BECAUSE THE TIMELY ACTION BY ANOTHER PARTY WAS PRECLUDED BY THE CONTRACT, THE COURT OF APPEALS COULD NOT CONSIDER WHETHER THE ACTION WAS TIMELY PURSUANT TO CPLR 205, EVEN THOUGH THE ISSUE WAS ADDRESSED BY THE APPELLATE DIVISION, BECAUSE THE ISSUE WAS NOT FULLY ADDRESSED IN SUPREME COURT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined that the trustee’s breach of contract action in this residential-mortgage-backed-securities securities case was time-barred. A certificate holder had filed a timely action, but the relevant contract precluded the action by the certificate holder. Therefore the trustee’s action could not be deemed to relate-back to it (CPLR 203). The Court of Appeals could not consider whether the trustee’s action was timely under CPLR 205, despite the fact that the Appellate Division addressed the issue, because the issue was not fully addressed by the parties in Supreme Court and the Court of Appeals does not have interest of justice jurisdiction:

CPLR 203 (f) has no application here because the certificate holder’s pre-existing action was not valid. The lower courts concluded that under the no action clause, the certificate holder could not bring the action on behalf of itself, any other certificate holder, or the Trustee. Those conclusions are not at issue in this Court. Thus, the certificate holder’s action was subject to dismissal, and there is no valid pre-existing action to which a claim in a subsequent amended pleading may relate back. The Trustee’s contention that it may use the relation-back doctrine of CPLR 203 (f) to cure the certificate holder’s lack of a right to sue, and that it may therefore avoid any problem with the identity of the plaintiff upon re-filing pursuant to CPLR 205 (a), is without merit. U.S. Bank Natl. Assn. v DLJ Mtge. Capital, Inc., 2019 NY Slip Op 01168, CtApp 2-19-19

 

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