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QUALIFIED, NOT ABSOLUTE, PRIVILEGE APPLIES WHEN THE SUBJECT OF THE ALLEGED DEFAMATION HAS NO OPPORTUNITY TO REBUT THE ALLEGEDLY DEFAMATORY STATEMENTS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a two-judge dissent, determined that qualified privilege, rather than absolute privilege, applied to allegations made to a Federal Drug Administration (FDA) investigator about plaintiff doctor’s involvement in a cancer-drug trial. The controlling issue was whether the statements were made in a proceeding which would allow the plaintiff to counter them:

Was plaintiff entitled to participate, by way of a hearing or otherwise, in the FDA’s review of the IRB [Institutional Review Board] and thereby challenge the accusations against her …? On this point, there is little disagreement. She was not. Plaintiff insists that she did not receive notice of any stage in the FDA’s investigation of the IRB. Nothing in the FDA regulations gives a third party, even one “with a direct interest” … in the matter, the right to notice of an FDA report concerning IRB noncompliance…  or the right to attend a “regulatory hearing” at which the IRB, as the subject of the investigation, would challenge disqualification by the FDA … . Moreover, while the regulatory scheme provides for judicial review… , defendants do not dispute plaintiff’s contention that she lacks standing to seek such review ,,, because the proceeding was not adversarial to her. Nor do defendants allege any alternative avenues available to plaintiff to contest, before the FDA, the alleged harm to her reputation. …

[Defendants’] theory … flies in the face of the policy rationale for insisting on an adversarial procedure, namely to prevent the absolute privilege from shielding statements published in a setting in which the defamed party may never know of the statements and, even if he or she did, would have no way to rebut them … . Stega v New York Downtown Hosp., 2018 NY Slip Op 04687, CtApp 6-27-18

​DEFAMATION (QUALIFIED, NOT ABSOLUTE, PRIVILEGE APPLIES WHEN THE SUBJECT OF THE ALLEGED DEFAMATION HAS NO OPPORTUNITY TO REBUT THE ALLEGEDLY DEFAMATORY STATEMENTS (CT APP))/PRIVILEGE (DEFAMATION, QUALIFIED, NOT ABSOLUTE, PRIVILEGE APPLIES WHEN THE SUBJECT OF THE ALLEGED DEFAMATION HAS NO OPPORTUNITY TO REBUT THE ALLEGEDLY DEFAMATORY STATEMENTS (CT APP))/ABSOLUTE PRIVILEGE (DEFAMATION, QUALIFIED, NOT ABSOLUTE, PRIVILEGE APPLIES WHEN THE SUBJECT OF THE ALLEGED DEFAMATION HAS NO OPPORTUNITY TO REBUT THE ALLEGEDLY DEFAMATORY STATEMENTS (CT APP))/QUALIFIED PRIVILEGE (DEFAMATION, QUALIFIED, NOT ABSOLUTE, PRIVILEGE APPLIES WHEN THE SUBJECT OF THE ALLEGED DEFAMATION HAS NO OPPORTUNITY TO REBUT THE ALLEGEDLY DEFAMATORY STATEMENTS (CT APP))

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IN THIS ACTION STEMMING FROM PLAINTIFF’S INSURING OF RESIDENTIAL MORTGAGE BACKED SECURITIES ISSUED BY DEFENDANT, PLAINTIFF WAS REQUIRED TO SHOW JUSTIFIABLE RELIANCE AND LOSS CAUSATION FOR ITS FRAUDULENT INDUCEMENT CAUSE OF ACTION, PLAINTIFF’S RECOVERY WAS LIMITED TO THAT DESCRIBED IN THE SOLE REMEDY PROVISION, AND PLAINTIFF WAS NOT ENTITLED TO ATTORNEY’S FEES (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a partial dissent, determined certain aspects of defendant Countrywide’s motion for summary judgment against plaintiff insurer, Ambac, stemming from residential mortgage backed securities issued by Countrywide, were properly granted. Ambac’s argument that it need not demonstrate justifiable reliance or loss causation in support of its fraudulent inducement cause of action was rejected, as was Ambac’s argument that it was entitled to relief over and above that specified in the sole remedy clause, as well as attorney’s fees:

Public policy reasons support the justifiable reliance requirement. Where a “sophisticated business person or entity . . . claims to have been taken in,” the justifiable reliance rule “serves to rid the court of cases in which the claim of reliance is likely to be hypocritical” … . Excusing a sophisticated party such as a monoline financial guaranty insurer from demonstrating justifiable reliance would not further the policy underlying this “venerable rule.”

Likewise, there is no merit to Ambac’s argument that it need not show loss causation. Loss causation is a well-established requirement of a common law fraudulent inducement claim for damages. * * *

Ambac’s complaint fails to include breach of contract allegations beyond those that fall under the sole remedy provision … , and accordingly Ambac is limited to the repurchase protocol as the potential remedy for those claims. * * *

In New York, “the prevailing litigant ordinarily cannot collect . . . attorneys’ fees from its unsuccessful opponents. . . . Attorneys’ fees are treated as incidents of litigation, rather than damages. . . . The exception is when an award is authorized by agreement between the parties or by statute or court rule” … . … [T]his Court [has] held that a court “should not infer a party’s intention to waive the benefit of the rule unless the intention to do so is unmistakably clear from the language of the promise … . Ambac Assur. Corp. v Countrywide Home Loans, Inc., 2018 NY Slip Op 04686, CtApp 6-27-18

​INSURANCE LAW (IN THIS ACTION STEMMING FROM PLAINTIFF’S INSURING OF RESIDENTIAL MORTGAGE BACKED SECURITIES ISSUED BY DEFENDANT, PLAINTIFF WAS REQUIRED TO SHOW JUSTIFIABLE RELIANCE AND LOSS CAUSATION FOR ITS FRAUDULENT INDUCEMENT CAUSE OF ACTION, PLAINTIFF’S RECOVERY WAS LIMITED TO THAT DESCRIBED IN THE SOLE REMEDY PROVISION, AND PLAINTIFF WAS NOT ENTITLED TO ATTORNEY’S FEES (CT APP))/FRAUD  (IN THIS ACTION STEMMING FROM PLAINTIFF’S INSURING OF RESIDENTIAL MORTGAGE BACKED SECURITIES ISSUED BY DEFENDANT, PLAINTIFF WAS REQUIRED TO SHOW JUSTIFIABLE RELIANCE AND LOSS CAUSATION FOR ITS FRAUDULENT INDUCEMENT CAUSE OF ACTION, PLAINTIFF’S RECOVERY WAS LIMITED TO THAT DESCRIBED IN THE SOLE REMEDY PROVISION, AND PLAINTIFF WAS NOT ENTITLED TO ATTORNEY’S FEES (CT APP))/CONTRACT LAW  (IN THIS ACTION STEMMING FROM PLAINTIFF’S INSURING OF RESIDENTIAL MORTGAGE BACKED SECURITIES ISSUED BY DEFENDANT, PLAINTIFF WAS REQUIRED TO SHOW JUSTIFIABLE RELIANCE AND LOSS CAUSATION FOR ITS FRAUDULENT INDUCEMENT CAUSE OF ACTION, PLAINTIFF’S RECOVERY WAS LIMITED TO THAT DESCRIBED IN THE SOLE REMEDY PROVISION, AND PLAINTIFF WAS NOT ENTITLED TO ATTORNEY’S FEES (CT APP))/SECURITIES  (IN THIS ACTION STEMMING FROM PLAINTIFF’S INSURING OF RESIDENTIAL MORTGAGE BACKED SECURITIES ISSUED BY DEFENDANT, PLAINTIFF WAS REQUIRED TO SHOW JUSTIFIABLE RELIANCE AND LOSS CAUSATION FOR ITS FRAUDULENT INDUCEMENT CAUSE OF ACTION, PLAINTIFF’S RECOVERY WAS LIMITED TO THAT DESCRIBED IN THE SOLE REMEDY PROVISION, AND PLAINTIFF WAS NOT ENTITLED TO ATTORNEY’S FEES (CT APP))/RESIDENTIAL MORTGAGE BACKED SECURITIES  (IN THIS ACTION STEMMING FROM PLAINTIFF’S INSURING OF RESIDENTIAL MORTGAGE BACKED SECURITIES ISSUED BY DEFENDANT, PLAINTIFF WAS REQUIRED TO SHOW JUSTIFIABLE RELIANCE AND LOSS CAUSATION FOR ITS FRAUDULENT INDUCEMENT CAUSE OF ACTION, PLAINTIFF’S RECOVERY WAS LIMITED TO THAT DESCRIBED IN THE SOLE REMEDY PROVISION, AND PLAINTIFF WAS NOT ENTITLED TO ATTORNEY’S FEES (CT APP))/ATTORNEY’S FEES (IN THIS ACTION STEMMING FROM PLAINTIFF’S INSURING OF RESIDENTIAL MORTGAGE BACKED SECURITIES ISSUED BY DEFENDANT, PLAINTIFF WAS REQUIRED TO SHOW JUSTIFIABLE RELIANCE AND LOSS CAUSATION FOR ITS FRAUDULENT INDUCEMENT CAUSE OF ACTION, PLAINTIFF’S RECOVERY WAS LIMITED TO THAT DESCRIBED IN THE SOLE REMEDY PROVISION, AND PLAINTIFF WAS NOT ENTITLED TO ATTORNEY’S FEES (CT APP))

DEFENDANT’S SIGNING A WRITTEN WAIVER OF THE RIGHT TO AN INDICTMENT BY GRAND JURY MET CONSTITUTIONAL REQUIREMENTS, ALTHOUGH BETTER PRACTICE WOULD INCLUDE ELICITING DEFENDANT’S UNDERSTANDING OF THE RIGHT BEING WAIVED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a two-judge dissent, determined that the defendant’s waiver of his right to indictment by grand jury followed proper procedure and was therefore valid. However the court noted that it would be better practice to elicit defendant’s understanding of the right being waived in accordance with a model colloquy (see Waiver of Indictment; Superior Court Information Procedure & Colloquy, https://www.nycourts.gov/judges/cji/8-Colloquies/ [accessed June 22, 2018]):

Mr. Myers [the defendant] signed a waiver, under oath, in open court, after consulting counsel, and with counsel present at the signing. In that statement, Mr. Myers affirmed that he was aware our Constitution guaranteed him the right to be prosecuted by a grand jury indictment and that he would have the right to testify before that grand jury; that he waived those rights in favor of prosecution by Superior Court Information, and that he did so voluntarily after discussing the facts of his case “as well as the meaning of this waiver” with his attorney. The waiver also set forth the offense with which the Superior Court information would charge him. In addition, Mr. Myers’ counsel signed an affirmation that he had discussed the case and the meaning of the waiver with Mr. Myers, and that counsel was satisfied that Mr. Myers understood “the waiver and its consequences.” Those steps satisfied the constitutional requirements. People v Myers, 2018 NY Slip Op 04685, CtApp 6-27-18

CRIMINAL LAW (WAIVER OF INDICTMENT, DEFENDANT’S SIGNING A WRITTEN WAIVER OF THE RIGHT TO AN INDICTMENT BY GRAND JURY MET CONSTITUTIONAL REQUIREMENTS, ALTHOUGH BETTER PRACTICE WOULD INCLUDE ELICITING DEFENDANT’S UNDERSTANDING OF THE RIGHT BEING WAIVED (CT APP))/INDICTMENT, WAIVER OF (DEFENDANT’S SIGNING A WRITTEN WAIVER OF THE RIGHT TO AN INDICTMENT BY GRAND JURY MET CONSTITUTIONAL REQUIREMENTS, ALTHOUGH BETTER PRACTICE WOULD INCLUDE ELICITING DEFENDANT’S UNDERSTANDING OF THE RIGHT BEING WAIVED (CT APP))/WAIVER OF INDICTMENT (DEFENDANT’S SIGNING A WRITTEN WAIVER OF THE RIGHT TO AN INDICTMENT BY GRAND JURY MET CONSTITUTIONAL REQUIREMENTS, ALTHOUGH BETTER PRACTICE WOULD INCLUDE ELICITING DEFENDANT’S UNDERSTANDING OF THE RIGHT BEING WAIVED (CT APP))

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NO APPEAL LIES FROM THE DENIAL OF A REPORTER’S MOTION TO QUASH SUBPOENAS ISSUED IN A CRIMINAL ACTION BECAUSE THERE IS NO STATUTORY AUTHORITY IN THE CRIMINAL PROCEDURE LAW FOR SUCH AN APPEAL, THE SUBPOENAS SOUGHT THE REPORTER’S APPEARANCE AT TRIAL AND NOTES OF THE REPORTER’S POST-ARREST INTERVIEW WITH THE DEFENDANT, IN CONTRAST, HAD THE SUBPOENAS BEEN ISSUED PRIOR TO THE COMMENCEMENT OF CRIMINAL PROCEEDINGS, THE MOTION TO QUASH WOULD HAVE BEEN CIVIL IN NATURE AND THE DENIAL APPEALABLE (CT APP).

The Court of Appeals, in a memorandum decision which sparked two dissenting opinions involving three judges, determined no appeal lies from the denial of a nonparty’s motion to quash a subpoena issued in a criminal action because there is no statutory authority for such an appeal. In contrast, the same motion brought prior to the commencement of a criminal action is civil in nature and is appealable. Here a reporter interviewed the defendant who had confessed in 2013 to the murder of a four-year-old girl in 1991. The reporter wrote a story stating that the defendant alleged his confession was not truthful. The subpoenas sought the appearance of the reporter at trial and the notes of the interview.  The trial court for the most part denied the motions to quash. The Appellate Division reversed without addressing the jurisdictional issue:

The critical distinction between orders addressing subpoenas that precede, as opposed to follow, the commencement of a criminal action is grounded in the plain language of the CPL, which governs “[a]ll criminal actions and proceedings” … . Specifically, a “criminal action commences . . . with the filing of an accusatory instrument against a defendant in a criminal court” … , and a “criminal proceeding” includes “any proceeding which (a) constitutes a part of a criminal action or (b) occurs in a criminal court and is related to a . . . criminal action . . . or involves a criminal investigation” … . Definitionally, an order resolving a motion to quash a subpoena that is issued prior to the filing of an accusatory instrument does not arise within the context of a “criminal action.” Moreover, while such an order may relate to a criminal investigation, when issued in a court of general jurisdiction prior to the commencement of a criminal action, it “arises . . . on the civil side of the court”… . Therefore, an order resolving a motion to quash a subpoena falls outside of the ambit of the CPL—and its concomitant limitations upon appellate review—when the order is issued before a criminal action begins. Review of an order issued in the investigatory stage does not undermine the legislative aim of “limit[ing] appellate proliferation in criminal matters”… insofar as appellate practice at this stage cannot be said to intrude significantly upon a criminal action that may never be commenced. The order here, however, issued after the accusatory instrument was filed, plainly arose in a “criminal action” within the meaning of that term as prescribed by the CPL. Matter of People v Juarez, 2018 NY Slip Op 04684, CtApp 6-27-18

​CRIMINAL LAW (NO APPEAL LIES FROM THE DENIAL OF A REPORTER’S MOTION TO QUASH SUBPOENAS ISSUED IN A CRIMINAL ACTION BECAUSE THERE IS NO STATUTORY AUTHORITY IN THE CRIMINAL PROCEDURE LAW FOR SUCH AN APPEAL, THE SUBPOENAS SOUGHT THE REPORTER’S APPEARANCE AT TRIAL AND NOTES OF THE REPORTER’S POST-ARREST INTERVIEW WITH THE DEFENDANT, IN CONTRAST, HAD THE SUBPOENAS BEEN ISSUED PRIOR TO THE COMMENCEMENT OF CRIMINAL PROCEEDINGS, THE MOTION TO QUASH WOULD HAVE BEEN CIVIL IN NATURE AND THE DENIAL APPEALABLE (CT APP))/APPEALS (CRIMINAL LAW, SUBPOENAS, NO APPEAL LIES FROM THE DENIAL OF A REPORTER’S MOTION TO QUASH SUBPOENAS ISSUED IN A CRIMINAL ACTION BECAUSE THERE IS NO STATUTORY AUTHORITY IN THE CRIMINAL PROCEDURE LAW FOR SUCH AN APPEAL, THE SUBPOENAS SOUGHT THE REPORTER’S APPEARANCE AT TRIAL AND NOTES OF THE REPORTER’S POST-ARREST INTERVIEW WITH THE DEFENDANT, IN CONTRAST, HAD THE SUBPOENAS BEEN ISSUED PRIOR TO THE COMMENCEMENT OF CRIMINAL PROCEEDINGS, THE MOTION TO QUASH WOULD HAVE BEEN CIVIL IN NATURE AND THE DENIAL APPEALABLE (CT APP))/CIVIL PROCEDURE (APPEALS, SUBPOENAS, NO APPEAL LIES FROM THE DENIAL OF A REPORTER’S MOTION TO QUASH SUBPOENAS ISSUED IN A CRIMINAL ACTION BECAUSE THERE IS NO STATUTORY AUTHORITY IN THE CRIMINAL PROCEDURE LAW FOR SUCH AN APPEAL, THE SUBPOENAS SOUGHT THE REPORTER’S APPEARANCE AT TRIAL AND NOTES OF THE REPORTER’S POST-ARREST INTERVIEW WITH THE DEFENDANT, IN CONTRAST, HAD THE SUBPOENAS BEEN ISSUED PRIOR TO THE COMMENCEMENT OF CRIMINAL PROCEEDINGS, THE MOTION TO QUASH WOULD HAVE BEEN CIVIL IN NATURE AND THE DENIAL APPEALABLE (CT APP))/SUBPOENAS, MOTION TO QUASH (CRIMINAL LAW, APPEALS, NO APPEAL LIES FROM THE DENIAL OF A REPORTER’S MOTION TO QUASH SUBPOENAS ISSUED IN A CRIMINAL ACTION BECAUSE THERE IS NO STATUTORY AUTHORITY IN THE CRIMINAL PROCEDURE LAW FOR SUCH AN APPEAL, THE SUBPOENAS SOUGHT THE REPORTER’S APPEARANCE AT TRIAL AND NOTES OF THE REPORTER’S POST-ARREST INTERVIEW WITH THE DEFENDANT, IN CONTRAST, HAD THE SUBPOENAS BEEN ISSUED PRIOR TO THE COMMENCEMENT OF CRIMINAL PROCEEDINGS, THE MOTION TO QUASH WOULD HAVE BEEN CIVIL IN NATURE AND THE DENIAL APPEALABLE (CT APP))/QUASH SUBPOENAS, MOTION TO (CRIMINAL LAW, APPEALS, NO APPEAL LIES FROM THE DENIAL OF A REPORTER’S MOTION TO QUASH SUBPOENAS ISSUED IN A CRIMINAL ACTION BECAUSE THERE IS NO STATUTORY AUTHORITY IN THE CRIMINAL PROCEDURE LAW FOR SUCH AN APPEAL, THE SUBPOENAS SOUGHT THE REPORTER’S APPEARANCE AT TRIAL AND NOTES OF THE REPORTER’S POST-ARREST INTERVIEW WITH THE DEFENDANT, IN CONTRAST, HAD THE SUBPOENAS BEEN ISSUED PRIOR TO THE COMMENCEMENT OF CRIMINAL PROCEEDINGS, THE MOTION TO QUASH WOULD HAVE BEEN CIVIL IN NATURE AND THE DENIAL APPEALABLE (CT APP))

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BENCH TRIAL JUDGE’S RESCINDING OF THE RULING DEFENSE COUNSEL COULD GIVE A SUMMATION IN THIS MISDEMEANOR CASE VIOLATED DEFENDANT’S SIXTH AMENDMENT RIGHT TO COUNSEL, RULING IS APPEALABLE BECAUSE DEFENSE COUNSEL DID NOT HAVE THE MEANINGFUL ABILITY TO OBJECT (CT APP).

The Court of Appeals, reversing the Appellate Term, determined the bench trial judge had deprived defendant of his Sixth Amendment right to counsel in this misdemeanor case by first ruling defense counsel could give a summation and then rescinding that ruling. The court further determined the judge’s action was appealable because defense counsel did not have an opportunity to object:

We conclude that defendant’s claim is reviewable on appeal. The trial court, in specifically ruling that defendant’s permission to deliver a summation was rescinded and concomitantly rendering a verdict, deprived defense counsel of a practical ability to timely and meaningfully object to the court’s ruling of law … .

Turning to the merits, the United States Supreme Court has held that New York’s former CPL 320.20 (3) (c) violated a defendant’s Sixth Amendment right to counsel by allowing the trial court the discretion whether to grant defense counsel the opportunity to give a summation in nonjury trials on indictments … . In this single judge trial on a class B misdemeanor, the trial court’s imposition of a sentence of 90 days in jail required that defendant be afforded the right to counsel at the trial under the Sixth Amendment… . That right was violated when the court denied defense counsel the opportunity to present summation … . People v Harris, 2018 NY Slip Op 04667, CtApp 6-26-18

​CRIMINAL LAW (BENCH TRIAL JUDGE’S RESCINDING OF THE RULING DEFENSE COUNSEL COULD GIVE A SUMMATION IN THIS MISDEMEANOR CASE VIOLATED DEFENDANT’S SIXTH AMENDMENT RIGHT TO COUNSEL, RULING IS APPEALABLE BECAUSE DEFENSE COUNSEL DID NOT HAVE THE MEANINGFUL ABILITY TO OBJECT (CT APP))/APPEALS (CRIMINAL LAW, (BENCH TRIAL JUDGE’S RESCINDING OF THE RULING DEFENSE COUNSEL COULD GIVE A SUMMATION IN THIS MISDEMEANOR CASE VIOLATED DEFENDANT’S SIXTH AMENDMENT RIGHT TO COUNSEL, RULING IS APPEALABLE BECAUSE DEFENSE COUNSEL DID NOT HAVE THE MEANINGFUL ABILITY TO OBJECT (CT APP))/ATTORNEYS (CRIMINAL LAW, RIGHT TO COUNSEL, BENCH TRIAL JUDGE’S RESCINDING OF THE RULING DEFENSE COUNSEL COULD GIVE A SUMMATION IN THIS MISDEMEANOR CASE VIOLATED DEFENDANT’S SIXTH AMENDMENT RIGHT TO COUNSEL, RULING IS APPEALABLE BECAUSE DEFENSE COUNSEL DID NOT HAVE THE MEANINGFUL ABILITY TO OBJECT (CT APP))/RIGHT TO COUNSEL  (BENCH TRIAL JUDGE’S RESCINDING OF THE RULING DEFENSE COUNSEL COULD GIVE A SUMMATION IN THIS MISDEMEANOR CASE VIOLATED DEFENDANT’S SIXTH AMENDMENT RIGHT TO COUNSEL, RULING IS APPEALABLE BECAUSE DEFENSE COUNSEL DID NOT HAVE THE MEANINGFUL ABILITY TO OBJECT (CT APP))

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OFFICE OF THE MEDICAID INSPECTOR GENERAL (OMIG) WAS ENTITLED TO THE FULL AMOUNT OF OVERPAYMENT MADE BY MEDICAID TO A METHADONE CLINIC, DESPITE THE INCLUSION OF A LOWER SETTLEMENT AMOUNT IN TWO NOTICES (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, reversing the Appellate Division, determined that the Office of the Medicaid Inspector General (OMIG) had properly notified the operator of a methadone clinic of the amount of overpayment by Medicaid that the OMIG was seeking. The OMIG had notified the clinic it was seeking about 1.8 million but was willing to settle for about 1.4 million. The clinic did not take any of the administrative steps or appeals that were available to it and did not agree to settle. The clinic argued that because two notices included only the 1.4 million settlement amount, the lower amount was owed. The Court of Appeals rejected that argument:

The pertinent regulations provide that, if an audit report is challenged, “[a]n extrapolation based upon an audit utilizing a statistical sampling method certified as valid will be presumed, in the absence of expert testimony and evidence to the contrary, to be an accurate determination of the total overpayments made or the penalty to be imposed” … . By contrast, the $1,460,914 figure, as explained in … the cover letter, merely represented, with 95% accuracy, a lower bound on the true amount overpaid. The [final audit report] and cover letter sufficiently notified [the clinic] … of OMIG’s $1,857,401 overpayment assessment which OMIG would be entitled to withhold … . West Midtown Mgt. Group, Inc. v State of New York, 2018 NY Slip Op 04666, CtApp 6-26-18

​MEDICAID (OFFICE OF THE MEDICAID INSPECTOR GENERAL (OMIG) WAS ENTITLED TO THE FULL AMOUNT OF OVERPAYMENT MADE BY MEDICAID TO A METHADONE CLINIC, DESPITE THE INCLUSION OF A LOWER SETTLEMENT AMOUNT IN TWO NOTICES (CT APP))/ADMINISTRATIVE LAW (MEDICAID, OFFICE OF THE MEDICAID INSPECTOR GENERAL (OMIG) WAS ENTITLED TO THE FULL AMOUNT OF OVERPAYMENT MADE BY MEDICAID TO A METHADONE CLINIC, DESPITE THE INCLUSION OF A LOWER SETTLEMENT AMOUNT IN TWO NOTICES (CT APP))

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NASSAU COUNTY PROPERLY DETERMINED A POLICE OFFICER WAS NOT ENTITLED TO INDEMNIFICATION FOR CIVIL DAMAGES STEMMING FROM A LAWSUIT BY AN ARRESTEE ALLOWED TO REMAIN IN JAIL AFTER THE OFFICER KNEW HE COULD NOT HAVE COMMITTED THE CRIME (CT APP)

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined that Nassau County did not act arbitrarily and capriciously when it decided petitioner police officer was not entitled to indemnification for civil damages stemming from a law suit by an arrestee (Crews) who was allowed to remain incarcerated despite the police officer’s knowledge Crews could not have committed the offense:

General Municipal Law § 50-l, the statute at issue here, authorizes Nassau County to defend and indemnify police officers named as defendants in civil actions or proceedings, providing indemnification from “any judgment . . . for damages, including punitive or exemplary damages, arising out of a negligent act or other tort of such police officer committed while in the proper discharge of [the officer’s] duties and within the scope of [the officer’s] employment” … . The statute declares that “[s]uch proper discharge and scope shall be determined by a majority vote of a panel . . . appointed by” various Nassau County officials — respondent Indemnification Board. The legislature, thus, left the determination of whether the statutory prerequisites are met to the discretion of the Board.

In this case, we are essentially asked to determine the meaning of the word “proper” in the phrase: “proper discharge of [the officer’s] duties.” Petitioner argues that the phrases “proper discharge of [ ] duties” and “scope of [ ] employment” are interchangeable in this statute, requiring only that the officer be engaged in police work to be entitled to indemnification. However, such an interpretation reads the word “proper” out of the statute. The legislature’s inclusion of this modifier indicates an intent to hold officers to a higher standard than mere performance of duty. Read literally, the statute permits the Board to consider the propriety of the officer’s actions in determining whether defense and indemnification is appropriate, as it did here when it revisited its determination after learning petitioner concealed information that extended the pretrial detention of an innocent person. Matter of Lemma v Nassau County Police Officer Indem. Bd., 2018 NY Slip Op 04382, CtApp 6-14-18

MUNICIPAL LAW (POLICE OFFICERS, NASSAU COUNTY PROPERLY DETERMINED A POLICE OFFICER WAS NOT ENTITLED TO INDEMNIFICATION FOR CIVIL DAMAGES STEMMING FROM A LAWSUIT BY AN ARRESTEE ALLOWED TO REMAIN IN JAIL AFTER THE OFFICER KNEW HE COULD NOT HAVE COMMITTED THE CRIME (CT APP))/ADMINISTRATIVE LAW (MUNICIPAL LAW, POLICE OFFICERS, NASSAU COUNTY PROPERLY DETERMINED A POLICE OFFICER WAS NOT ENTITLED TO INDEMNIFICATION FOR CIVIL DAMAGES STEMMING FROM A LAWSUIT BY AN ARRESTEE ALLOWED TO REMAIN IN JAIL AFTER THE OFFICER KNEW HE COULD NOT HAVE COMMITTED THE CRIME (CT APP))/POLICE OFFICERS (MUNICIPAL LAW, INDEMNIFICATION, NASSAU COUNTY PROPERLY DETERMINED A POLICE OFFICER WAS NOT ENTITLED TO INDEMNIFICATION FOR CIVIL DAMAGES STEMMING FROM A LAWSUIT BY AN ARRESTEE ALLOWED TO REMAIN IN JAIL AFTER THE OFFICER KNEW HE COULD NOT HAVE COMMITTED THE CRIME (CT APP))/INDEMNIFICATION (CIVIL DAMAGES, MUNICIPAL LAW, POLICE OFFICERS, NASSAU COUNTY PROPERLY DETERMINED A POLICE OFFICER WAS NOT ENTITLED TO INDEMNIFICATION FOR CIVIL DAMAGES STEMMING FROM A LAWSUIT BY AN ARRESTEE ALLOWED TO REMAIN IN JAIL AFTER THE OFFICER KNEW HE COULD NOT HAVE COMMITTED THE CRIME (CT APP))/POLICE OFFICERS  (CIVIL DAMAGES, MUNICIPAL LAW, POLICE OFFICERS, NASSAU COUNTY PROPERLY DETERMINED A POLICE OFFICER WAS NOT ENTITLED TO INDEMNIFICATION FOR CIVIL DAMAGES STEMMING FROM A LAWSUIT BY AN ARRESTEE ALLOWED TO REMAIN IN JAIL AFTER THE OFFICER KNEW HE COULD NOT HAVE COMMITTED THE CRIME (CT APP))

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TENANT’S HUSBAND HAD MOVED TO A NURSING HOME, DIVISION OF HOUSING AND COMMUNITY RENEWAL PROPERLY ONLY COUNTED TENANT’S PORTION OF THE COUPLE’S INCOME TO FIND HER ELIGIBLE FOR RENT CONTROL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over an extensive dissenting opinion, determined the Division of Housing and Community Renewal (DHCR) properly counted only the resident’s income, and not her husband’s income, for purposes of her eligibility for rent control. Her husband had moved to a nursing home:

Petitioner’s main contention is that because, under federal tax law, a joint tax return results in joint tax liability attributable to both filers … , under the RCL [rent control law], tenant’s federal AGI [adjusted gross income] cannot be apportioned and therefore her total annual income exceeds the income threshold. Petitioner offers no sound explanation why federal income tax liability should be outcome determinative of how DHCR interprets and applies the RCL. …

To be sure, RCL … characterizes annual income as the federal AGI. The statute also provides that total annual income is calculated as the “sum” of the annual incomes of all those “who occupy the housing accommodation as their primary residence” … . To read the statute as petitioner and the dissent suggest would mean that total annual income may include those persons who do not occupy the housing accommodation as their primary residence. “Such a construction, resulting in the nullification of one part of the [statute] by another,’ is impermissible, and violates the rule that all parts of a statute are to be harmonized with each other” … . Matter of Brookford, LLC v New York State Div. of Hous. & Community Renewal, 2018 NY Slip Op 04381, CtApp 6-14-18

LANDLORD-TENANT (TENANT’S HUSBAND HAD MOVED TO A NURSING HOME, DIVISION OF HOUSING AND COMMUNITY RENEWAL PROPERLY ONLY COUNTED TENANT’S PORTION OF THE COUPLE’S INCOME TO FIND HER ELIGIBLE FOR RENT CONTROL (CT APP))/ADMINISTRATIVE LAW (RENT CONTROL, TENANT’S HUSBAND HAD MOVED TO A NURSING HOME, DIVISION OF HOUSING AND COMMUNITY RENEWAL PROPERLY ONLY COUNTED TENANT’S PORTION OF THE COUPLE’S INCOME TO FIND HER ELIGIBLE FOR RENT CONTROL (CT APP))/RENT CONTROL (TENANT’S HUSBAND HAD MOVED TO A NURSING HOME, DIVISION OF HOUSING AND COMMUNITY RENEWAL PROPERLY ONLY COUNTED TENANT’S PORTION OF THE COUPLE’S INCOME TO FIND HER ELIGIBLE FOR RENT CONTROL (CT APP))/DIVISION OF HOUSING AND COMMUNITY RENEWAL (TENANT’S HUSBAND HAD MOVED TO A NURSING HOME, DIVISION OF HOUSING AND COMMUNITY RENEWAL PROPERLY ONLY COUNTED TENANT’S PORTION OF THE COUPLE’S INCOME TO FIND HER ELIGIBLE FOR RENT CONTROL (CT APP))

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ADMINISTRATIVE LAW JUDGE’S MARKING AN ADMINISTRATION OF CHILDREN’S SERVICES REPORT AS ‘INDICATED’ FOR MALTREATMENT OF PETITIONER’S CHILD HAD A RATIONAL BASIS AND SHOULD STAND, APPELLATE DIVISION REVERSED (CT APP).

The Court of Appeals, reversing the Appellate Division, over an extensive dissenting opinion, determined that the administrative law judge’s (ALJ’s) marking a NYC Administration for Children’s Services (ACS) report as “indicated” for maltreatment of petitioner’s (Natasha’s) child had a rational basis. Natasha had used her five-year-old child as a pawn in a shoplifting scheme. Natasha had an unblemished record and was pursuing a degree in early childhood education. The “indicated” designation will probably make it impossible for Natasha to find work in the childhood education field:

… [I]t was rational for the Administrative Law Judge to have concluded that the child was placed in imminent risk of impairment, constituting maltreatment … , and that petitioner’s actions are reasonably related to employment in the childcare field… ). The act in question — specifically, using the child as a pawn in a shoplifting scheme — “was sufficiently egregious so as to create an imminent risk of physical, mental[,] and emotional harm to the child” … . There is imminent potential for physical confrontation during a theft from a department store monitored by security. Moreover, … under the circumstances presented here, “utilizing a child to commit a crime and teaching a child that such behavior is acceptable must have an immediate impact on that child’s emotional and mental well-being,” particularly where, as here, the child is “young [and] just learning to differentiate between right and wrong” … . Likewise, the Administrative Law Judge rationally concluded that petitioner’s actions are reasonably related to employment in the childcare field “[a]s a matter of common sense” … . Matter of Natasha W. v New York State Off. of Children & Family Servs., 2018 NY Slip Op 04379, CtApp 6-14-18

FAMILY LAW (CHILD MALTREATMENT, ADMINISTRATIVE LAW JUDGE’S MARKING AN ADMINISTRATION OF CHILDREN’S SERVICES REPORT AS ‘INDICATED’ FOR MALTREATMENT OF PETITIONER’S CHILD HAD A RATIONAL BASIS AND SHOULD STAND, APPELLATE DIVISION REVERSED (CT APP))/ADMINISTRATIVE LAW (FAMILY LAW, CHILD MALTREATMENT,  ADMINISTRATIVE LAW JUDGE’S MARKING AN ADMINISTRATION OF CHILDREN’S SERVICES REPORT AS ‘INDICATED’ FOR MALTREATMENT OF PETITIONER’S CHILD HAD A RATIONAL BASIS AND SHOULD STAND, APPELLATE DIVISION REVERSED (CT APP))/ADMINISTRATION OF CHILDREN’S SERVICES ( ADMINISTRATIVE LAW JUDGE’S MARKING AN ADMINISTRATION OF CHILDREN’S SERVICES REPORT AS ‘INDICATED’ FOR MALTREATMENT OF PETITIONER’S CHILD HAD A RATIONAL BASIS AND SHOULD STAND, APPELLATE DIVISION REVERSED (CT APP))/MALTREATMENT (FAMILY LAW, CHILDREN, ADMINISTRATIVE LAW JUDGE’S MARKING AN ADMINISTRATION OF CHILDREN’S SERVICES REPORT AS ‘INDICATED’ FOR MALTREATMENT OF PETITIONER’S CHILD HAD A RATIONAL BASIS AND SHOULD STAND, APPELLATE DIVISION REVERSED (CT APP))

,

TERMINATION OF PARENTAL RIGHTS BASED UPON ABANDONMENT REVERSED, AGENCY DID NOT MEET ITS BURDEN OF DEMONSTRATING FATHER, WHO WAS INCARCERATED, FAILED TO COMMUNICATE WITH THE CHILD DURING THE SIX MONTHS PRIOR TO THE PROCEEDING (CT APP).

The Court of Appeals, reversing the Appellate Division, in a brief memorandum decision, determined the petitioner agency did not meet its burden of demonstrating father, who was incarcerated, had abandoned his child:

An order terminating parental rights may be entered upon the ground that a child’s parent “abandoned such child for the period of six months immediately prior to the date on which the petition is filed in the court” … . A child is “abandoned” within the meaning of Social Services Law § 384-b, if the “parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and  communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency” … . Parents are presumed able to visit and communicate with their children and, although incarcerated parents may be unable to visit, they are still presumed able to communicate with their children absent proof to the contrary … .

The petitioner agency bears the burden of proving abandonment by clear and convincing evidence… . Here, petitioner’s caseworker testified that respondent—who was incarcerated—did not visit with the child or communicate with the caseworker or other agency personnel in the six months preceding the filing of the abandonment petition. However, the record is bereft of evidence establishing that respondent failed to communicate with the child, directly or through the child’s foster parent, during the relevant time period. Thus, petitioner did not meet its burden of demonstrating, by clear and convincing evidence, that respondent abandoned the child. Matter of Mason H. (Joseph H.), 2018 NY Slip Op 04384, CtApp 6-14-18

FAMILY LAW (PARENTAL RIGHTS, TERMINATION OF PARENTAL RIGHTS BASED UPON ABANDONMENT REVERSED, AGENCY DID NOT MEET ITS BURDEN OF DEMONSTRATING FATHER, WHO WAS INCARCERATED, FAILED TO COMMUNICATE WITH THE CHILD DURING THE SIX MONTHS PRIOR TO THE PROCEEDING (CT APP))/PARENTAL RIGHTS (TERMINATION OF PARENTAL RIGHTS BASED UPON ABANDONMENT REVERSED, AGENCY DID NOT MEET ITS BURDEN OF DEMONSTRATING FATHER, WHO WAS INCARCERATED, FAILED TO COMMUNICATE WITH THE CHILD DURING THE SIX MONTHS PRIOR TO THE PROCEEDING (CT APP))/ABANDONMENT (FAMILY LAW, TERMINATION OF PARENTAL RIGHTS BASED UPON ABANDONMENT REVERSED, AGENCY DID NOT MEET ITS BURDEN OF DEMONSTRATING FATHER, WHO WAS INCARCERATED, FAILED TO COMMUNICATE WITH THE CHILD DURING THE SIX MONTHS PRIOR TO THE PROCEEDING (CT APP))/TERMINATION OF PARENTAL RIGHTS (ABANDONMENT, TERMINATION OF PARENTAL RIGHTS BASED UPON ABANDONMENT REVERSED, AGENCY DID NOT MEET ITS BURDEN OF DEMONSTRATING FATHER, WHO WAS INCARCERATED, FAILED TO COMMUNICATE WITH THE CHILD DURING THE SIX MONTHS PRIOR TO THE PROCEEDING (CT APP))

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