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NYC DEPARTMENT OF HEALTH AND BOARD OF HEALTH DID NOT VIOLATE THE SEPARATION OF POWERS BY PROMULGATING HEALTH CODE PROVISIONS REQUIRING YOUNG CHILDREN IN CITY REGULATED PROGRAMS TO RECEIVE FLU VACCINATIONS, NOR ARE THE CODE PROVISIONS PREEMPTED BY STATE LAW (CT APP).

The Court of Appeal, in a full-fledged opinion by Judge Stein, reversing the Appellate Division, determined that the NYC Department of Health and Mental Hygiene and the NYC Board of Health properly amended the health code to provide that children between the ages of 6 and 59 months who attended city regulated child care or school programs must receive annual flu vaccinations. The court went through all the Boreali (71 NY2d 11-14) factors, as well as all the preemption theories:

Separation of powers challenges often involve the question of whether a regulatory body has exceeded the scope of its delegated powers and encroached upon the legislative domain of policymaking … . * * *

In Boreali and subsequent cases, we have clarified the “difficult-to-define line between administrative rule-making and legislative policy-making” by articulating four “coalescing circumstances” relevant to rendering such a determination (71 NY2d at 11 …). These circumstances are: whether (1) the regulatory agency ” balanc[ed] costs and benefits according to preexisting guidelines,’ or instead made value judgments entail[ing] difficult and complex choices between broad policy goals to resolve social problems'”… ; (2) the agency “merely filled in details of a broad policy or if it wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance'” … ; (3) the legislature had unsuccessfully attempted to enact laws pertaining to the issue… ; and (4) the agency used special technical expertise in the applicable field … . * * *

Public Health Law §§ 2164 and 2165 set forth mandatory vaccinations that are preconditions to enrollment in school and in institutions of higher education. Those statutes include exemptions, incorporate an appeal process, and explain the procedures to be followed when a student is unable to afford the necessary vaccinations. Taking each of the aforementioned statutes into consideration, the Appellate Division correctly determined that the flu vaccine rules are not preempted by state law. Garcia v New York City Dept. of Health & Mental Hygiene, 2018 NY Slip Op 04778, CtApp 6-28-18

​ADMINISTRATIVE LAW (FLU VACCINES, NYC DEPARTMENT OF HEALTH AND BOARD OF HEALTH DID NOT VIOLATE THE SEPARATION OF POWERS BY PROMULGATING HEALTH CODE PROVISIONS REQUIRING YOUNG CHILDREN IN CITY REGULATED PROGRAMS TO RECEIVE FLU VACCINATIONS, NOR ARE THE CODE PROVISIONS PREEMPTED BY STATE LAW (CT APP))/MUNICIPAL LAW (FLU VACCINES, NYC DEPARTMENT OF HEALTH AND BOARD OF HEALTH DID NOT VIOLATE THE SEPARATION OF POWERS BY PROMULGATING HEALTH CODE PROVISIONS REQUIRING YOUNG CHILDREN IN CITY REGULATED PROGRAMS TO RECEIVE FLU VACCINATIONS, NOR ARE THE CODE PROVISIONS PREEMPTED BY STATE LAW (CT APP))/FLU VACCINES (NYC DEPARTMENT OF HEALTH AND BOARD OF HEALTH DID NOT VIOLATE THE SEPARATION OF POWERS BY PROMULGATING HEALTH CODE PROVISIONS REQUIRING YOUNG CHILDREN IN CITY REGULATED PROGRAMS TO RECEIVE FLU VACCINATIONS, NOR ARE THE CODE PROVISIONS PREEMPTED BY STATE LAW (CT APP))/SEPARATION OF POWERS (FLU VACCINES, NYC DEPARTMENT OF HEALTH AND BOARD OF HEALTH DID NOT VIOLATE THE SEPARATION OF POWERS BY PROMULGATING HEALTH CODE PROVISIONS REQUIRING YOUNG CHILDREN IN CITY REGULATED PROGRAMS TO RECEIVE FLU VACCINATIONS, NOR ARE THE CODE PROVISIONS PREEMPTED BY STATE LAW (CT APP))/PREEMPTION (ADMINISTRATIVE LAW,  NYC DEPARTMENT OF HEALTH AND BOARD OF HEALTH DID NOT VIOLATE THE SEPARATION OF POWERS BY PROMULGATING HEALTH CODE PROVISIONS REQUIRING YOUNG CHILDREN IN CITY REGULATED PROGRAMS TO RECEIVE FLU VACCINATIONS, NOR ARE THE CODE PROVISIONS PREEMPTED BY STATE LAW (CT APP))/DEPARTMENT OF HEALTH (NYC)  (FLU VACCINES, NYC DEPARTMENT OF HEALTH AND BOARD OF HEALTH DID NOT VIOLATE THE SEPARATION OF POWERS BY PROMULGATING HEALTH CODE PROVISIONS REQUIRING YOUNG CHILDREN IN CITY REGULATED PROGRAMS TO RECEIVE FLU VACCINATIONS, NOR ARE THE CODE PROVISIONS PREEMPTED BY STATE LAW (CT APP))

STRICT REQUIREMENTS FOR NOTIFICATION OF COUNSEL OF THE CONTENTS OF JURY NOTES AND THE CREATION OF A COMPLETE RECORD OF HOW THE NOTES WERE HANDLED REAFFIRMED (CT APP).

The Court of Appeals, in a memorandum decision with an extensive three-judge dissent, determined that the trial judge’s failure to comply with the notice requirements for jury notes pursuant to Criminal Procedure Law 310.30 and O’Rama mandated reversal:

“[M]eaningful notice means notice of the actual specific content of the jurors’ request'” … . Although the record demonstrates that “defense counsel was made aware of the existence of the note, there is no indication that the entire contents of the note were shared with counsel”… . We therefore reject the People’s argument that defense counsel’s awareness of the existence and the “gist” of the note satisfied the court’s meaningful notice obligation, or that preservation was required. “Where the record fails to show that defense counsel was apprised of the specific, substantive contents of the note—as it is in this case—preservation is not required” …  .

Moreover, “[w]here a trial transcript does not show compliance with O’Rama’s procedure as required by law, we cannot assume that the omission was remedied at an off-the-record conference that the transcript does not refer to” (id.). In other words, “[i]n the absence of record proof that the trial court complied with its [meaningful notice obligation] under CPL 310.30, a mode of proceedings error occurred requiring reversal”… . We again decline “to disavow our holding in Walston [23 NY3d 986] . . . that imposes an affirmative obligation on a trial court to create a record of compliance under CPL 310.30 and O’Rama” … . People v Morrison, 2018 NY Slip Op 04777, CtApp 6-28-18

​CRIMINAL LAW (JURY NOTES, STRICT REQUIREMENTS FOR NOTIFICATION OF COUNSEL OF THE CONTENTS OF JURY NOTES AND THE CREATION OF A COMPLETE RECORD OF HOW THE NOTES WERE HANDLED REAFFIRMED (CT APP))/JURY NOTES (CRIMINAL LAW, STRICT REQUIREMENTS FOR NOTIFICATION OF COUNSEL OF THE CONTENTS OF JURY NOTES AND THE CREATION OF A COMPLETE RECORD OF HOW THE NOTES WERE HANDLED REAFFIRMED (CT APP))/O’RAMA (CRIMINAL LAW, JURY NOTES, STRICT REQUIREMENTS FOR NOTIFICATION OF COUNSEL OF THE CONTENTS OF JURY NOTES AND THE CREATION OF A COMPLETE RECORD OF HOW THE NOTES WERE HANDLED REAFFIRMED (CT APP))

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VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over two dissents, reversing the Appellate Division, determined that the street stops and searches of the defendants (Nonni and Parker) were valid under the DeBour criteria. The police had received a report of a robbery at the location, the defendants were the only persons seen when the police arrived, and both ran or walked away when asked to stop. The court noted that justification for street stops presents a mixed question of law and fact which can be reviewed by the Court of Appeals only to the extent of determining whether the lower court rulings have support in the record. The Court of Appeals reversed, however, because the record did not allow review of two jury notes received by the judge but not specifically addressed by the trial judge or counsel:

Here, for both defendants, the police had a founded suspicion of criminal activity to support a common-law right of inquiry. The police received a radio transmission of a burglary in progress, and their encounter with defendants at the reported address occurred a mere five minutes later. The officers first saw defendants exiting private property, the scene of a suspected crime. The officers observed no other persons or cars in the secluded, residential area, and it was early in the morning on a federal holiday. In accordance with De Bour, those circumstances were sufficient to justify the officers asking defendants what they were doing and where they were going, and to continue inquiring when defendants did not respond after the officers identified themselves. Further, the officers’ testimony, credited by the court, that defendant Nonni then “actively fled from the police,” combined with the specific circumstances observed by the officers during their initial encounter with defendants, provides sufficient record support for the court’s determination that there was reasonable suspicion of criminal activity to justify defendant Nonni’s pursuit, forcible stop, and detainment … .  …

According to the arresting officers’ testimony, after defendant Parker saw defendant Nonni run and some police officers give chase, defendant Parker increased his pace, acted in an evasive manner, and crossed the street onto the front lawn of another property. The officer twice characterized Parker’s movements as “running,” albeit at a slow pace. While active avoidance of a confrontation between the police and an acquaintance does not itself give rise to reasonable suspicion, its combination with the specific, highly-suspicious circumstances observed by the police may give rise to heightened suspicion. Thus, record support exists for the court’s conclusion that the officers had reasonable suspicion, and that the pursuit, stop, and detainment of defendant Parker, as well as the subsequent search of his bag, were permissible. * * *

… .[T]he court did not read into the record the contents of the notes at issue here …. Further, there is no hint in the record that the court provided counsel the contents of the notes; rather, an inference may be drawn to the contrary. Tellingly, while the court had read other notes, and had confirmed that counsel had read their contents on the record in the past, there is no such record regarding these two substantive notes. Indeed, the court’s reference with respect to the first note—that it believed counsel had agreed to the readback it would provide in response—made no reference to the other two notes, suggesting that there was no discussion about those notes. Whether the record demonstrates a court has shown counsel prior jury notes as a matter of practice is irrelevant, since there must be specific, record proof that the court did so for each note. People v Parker, 2018 NY Slip Op 04776, CtApp 6-28-18

​CRIMINAL LAW (VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/APPEALS (CRIMINAL LAW, VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/STREET STOPS  (VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/EVIDENCE (CRIMINAL LAW, VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/SUPPRESSION (CRIMINAL LAW, STREET STOPS, VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/DE BOUR (STREET STOPS, VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/EVIDENCE (CRIMINAL LAW, STREET STOPS, VALIDITY OF STREET STOPS PRESENTS A MIXED QUESTION OF LAW AND FACT WHICH THE COURT OF APPEALS CAN REVIEW ONLY TO THE EXTENT OF WHETHER THE LOWER COURT RULING HAS SUPPORT IN THE RECORD, HERE THE RECORD SUPPORTED THE VALIDITY OF THE STOPS UNDER DE BOUR, TRIAL COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/JURY NOTES (CRIMINAL LAW, COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))/O’RAMA (JURY NOTES, CRIMINAL LAW, COURT’S FAILURE TO CREATE A RECORD CONCERNING TWO JURY NOTES REQUIRED REVERSAL HOWEVER (CT APP))

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PLAIN LANGUAGE OF THE COLLECTIVE BARGAINING AGREEMENT LIMITED THE RIGHT TO DEMAND ARBITRATION TO THE UNION, NOT THE FIRED EMPLOYEE (CT APP).

The Court of Appeals, in a brief memorandum, over a three-judge dissenting opinion, determined that the plain language of the collective bargaining agreement (CBA) limited the right to demand arbitration to the union and not the fired employee:

From the dissent:

The language of CBA clearly grants the employee the right to elect arbitration. Even were the agreement ambiguous in that regard, it must be construed in favor of the employee’s right to demand arbitration. New York has established a policy favoring arbitration … , and the CBA itself provides that “in order to establish a more harmonious and cooperative relationship between the County. . . and its [p]ublic [e]mployees. . . [t]he provisions of this resolution shall be liberally construed.”

The majority’s contrary interpretation — that the CBA gives the right to proceed to arbitration only to the union — would mean that the employee could “elect” to exercise “his/her rights” only where the union agrees to arbitrate — a restriction that does not appear in the agreement. The employee may not know at the time of election whether the union will pursue arbitration, and therefore could not know the scope of “his/her rights” until it is too late. Further, the rights-granting language in the CBA treats the arbitration right and the [Civil Service Law] 75 right in parallel, emphasizing the employee’s right to choose. Matter of Widrick (Carpinelli), 2018 NY Slip Op 04780, CtApp 6-28-18

​ARBITRATION (COLLECTIVE BARGAINING AGREEMENT, PLAIN LANGUAGE OF THE COLLECTIVE BARGAINING AGREEMENT LIMITED THE RIGHT TO DEMAND ARBITRATION TO THE UNION, NOT THE FIRED EMPLOYEE (CT APP))/CONTRACT LAW (COLLECTIVE BARGAINING AGREEMENT, PLAIN LANGUAGE OF THE COLLECTIVE BARGAINING AGREEMENT LIMITED THE RIGHT TO DEMAND ARBITRATION TO THE UNION, NOT THE FIRED EMPLOYEE (CT APP))/EMPLOYMENT LAW (COLLECTIVE BARGAINING AGREEMENT, PLAIN LANGUAGE OF THE COLLECTIVE BARGAINING AGREEMENT LIMITED THE RIGHT TO DEMAND ARBITRATION TO THE UNION, NOT THE FIRED EMPLOYEE (CT APP))/COLLECTIVE BARGAINING AGREEMENT (PLAIN LANGUAGE OF THE COLLECTIVE BARGAINING AGREEMENT LIMITED THE RIGHT TO DEMAND ARBITRATION TO THE UNION, NOT THE FIRED EMPLOYEE (CT APP))/UNIONS (ARBITRATION, COLLECTIVE BARGAINING AGREEMENT, PLAIN LANGUAGE OF THE COLLECTIVE BARGAINING AGREEMENT LIMITED THE RIGHT TO DEMAND ARBITRATION TO THE UNION, NOT THE FIRED EMPLOYEE (CT APP))

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NEGLECT ALLEGATION AGAINST NURSING HOME FOR SYSTEMIC FAILURE PROPERLY FOUND TO BE SUBSTANTIATED, EVEN THOUGH THE RELATED ALLEGATIONS AGAINST TWO EMPLOYEES WERE DEEMED TO BE UNSUBSTANTIATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a dissent, reversing the Appellate Division, determined that the Justice Center for the Protection of People with Special Needs had the statutory authority to find that a neglect allegation against a nursing home was substantiated, even though the neglect allegations against two employees of the nursing home were deemed unsubstantiated. A female resident had, for the third time, been sexually assaulted by another resident in the common room while the common room was unattended. The employees were not required to be in the common room at all times. But the nursing home, the administrative law judge (ALJ) found, should have increased the level of required supervision because of the prior assaults:

Petitioner’s narrow construction of the statute would paradoxically leave the Justice Center powerless to address many systemic issues, defeating the purpose of the Act and preventing the Justice Center from protecting vulnerable persons where it is most critical to do so. As noted throughout the text and legislative history, the statutory overhaul embodied in the Act was necessary not only to address isolated incidents of abuse and neglect, but also to resolve systemic problems, such as inadequate staffing, training, and supervision, which often cause or contribute to incidents of abuse and neglect… . Indeed, systemic deficiencies may present a greater hazard to vulnerable residents than do discrete instances of employee misconduct, since employee-related incidents can often be remedied through targeted disciplinary action. Latent systemic problems, by contrast, are often more challenging to identify and more complicated to rectify—and therefore more likely to recur. Matter of Anonymous v Molik, 2018 NY Slip Op 04779, CtApp 6-28-18

​ADMINISTRATIVE LAW (SOCIAL SERVICES LAW, NEGLECT ALLEGATION AGAINST NURSING HOME FOR SYSTEMIC FAILURE PROPERLY FOUND TO BE SUBSTANTIATED, EVEN THOUGH THE RELATED ALLEGATIONS AGAINST TWO EMPLOYEES WERE DEEMED TO BE UNSUBSTANTIATED (CT APP))/SOCIAL SERVICES LAW (NURSING HOMES, NEGLECT ALLEGATION AGAINST NURSING HOME FOR SYSTEMIC FAILURE PROPERLY FOUND TO BE SUBSTANTIATED, EVEN THOUGH THE RELATED ALLEGATIONS AGAINST TWO EMPLOYEES WERE DEEMED TO BE UNSUBSTANTIATED (CT APP))/SPECIAL NEEDS (JUSTICE CENTER FOR THE PROTECTION OF PERSONS WITH SPECIAL NEEDS, SOCIAL SERVICES LAW, NEGLECT ALLEGATION AGAINST NURSING HOME FOR SYSTEMIC FAILURE PROPERLY FOUND TO BE SUBSTANTIATED, EVEN THOUGH THE RELATED ALLEGATIONS AGAINST TWO EMPLOYEES WERE DEEMED TO BE UNSUBSTANTIATED (CT APP))/JUSTICE CENTER FOR THE PROTECTION OF PERSONS WITH SPECIAL NEEDS, SOCIAL SERVICES LAW, NEGLECT ALLEGATION AGAINST NURSING HOME FOR SYSTEMIC FAILURE PROPERLY FOUND TO BE SUBSTANTIATED, EVEN THOUGH THE RELATED ALLEGATIONS AGAINST TWO EMPLOYEES WERE DEEMED TO BE UNSUBSTANTIATED (CT APP))/NURSING HOMES (SOCIAL SERVICES LAW, NEGLECT ALLEGATION AGAINST NURSING HOME FOR SYSTEMIC FAILURE PROPERLY FOUND TO BE SUBSTANTIATED, EVEN THOUGH THE RELATED ALLEGATIONS AGAINST TWO EMPLOYEES WERE DEEMED TO BE UNSUBSTANTIATED (CT APP))/NEGLECT (SOCIAL SERVICES LAW, NEGLECT ALLEGATION AGAINST NURSING HOME FOR SYSTEMIC FAILURE PROPERLY FOUND TO BE SUBSTANTIATED, EVEN THOUGH THE RELATED ALLEGATIONS AGAINST TWO EMPLOYEES WERE DEEMED TO BE UNSUBSTANTIATED (CT APP))/SUPERVISION (NURSING HOMES, SOCIAL SERVICES LAW, NEGLECT ALLEGATION AGAINST NURSING HOME FOR SYSTEMIC FAILURE PROPERLY FOUND TO BE SUBSTANTIATED, EVEN THOUGH THE RELATED ALLEGATIONS AGAINST TWO EMPLOYEES WERE DEEMED TO BE UNSUBSTANTIATED (CT APP))

TOWN PROPERLY DISSOLVED THE EXISTING FIRE PROTECTION DISTRICT AND CREATED TWO NEW FIRE PROTECTION DISTRICTS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissenting opinion, determined the Town of Champion had properly dissolved the existing fire protection district (FPD) and replaced it with two new FPD’s. The dissent argued the existing FPD had not been properly dissolved, but rather was merely divided:

… [P]etitioners claim that respondent failed to accomplish and complete the dissolution of the Town of Champion Fire Protection District as required by the General Municipal Law. On the facts of this case, we conclude that respondent’s actions are not affected by an error of law because it prepared, approved, and implemented a dissolution plan in compliance with the applicable statutory requirements, and lawfully created two legally distinct fire protection districts to deliver fire protection services to the Town of Champion residents, in accordance with Town Law section 170. Matter of Waite v Town of Champion, 2018 NY Slip Op 04688, CtApp 6-27-18

​MUNICIPAL LAW (FIRE PROTECTION DISTRICTS, TOWN PROPERLY DISSOLVED THE EXISTING FIRE PROTECTION DISTRICT AND CREATED TWO NEW FIRE PROTECTION DISTRICTS (CT APP))/FIRE PROTECTION DISTRICTS (MUNICIPAL LAW, FIRE PROTECTION DISTRICTS, TOWN PROPERLY DISSOLVED THE EXISTING FIRE PROTECTION DISTRICT AND CREATED TWO NEW FIRE PROTECTION DISTRICTS (CT APP))/GENERAL MUNICIPAL LAW (FIRE PROTECTION DISTRICTS, TOWN PROPERLY DISSOLVED THE EXISTING FIRE PROTECTION DISTRICT AND CREATED TWO NEW FIRE PROTECTION DISTRICTS (CT APP))/TOWN LAW  (FIRE PROTECTION DISTRICTS, TOWN PROPERLY DISSOLVED THE EXISTING FIRE PROTECTION DISTRICT AND CREATED TWO NEW FIRE PROTECTION DISTRICTS (CT APP))

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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))

, ,

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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