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DETERMINATION OF MOTION TO TAKE A BUCCAL SWAB FOR DNA TESTING IS A CRITICAL STAGE OF THE PROCEEDINGS REQUIRING REPRESENTATION BY COUNSEL, BECAUSE DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT’S GUILTY PLEAS MUST BE VACATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over an extensive three-judge dissent, determined defendant was deprived of counsel at a critical stage of the prosecution, i.e., when the People made a motion to take a buccal swap for DNA testing. The appellate division properly vacated defendant’s pleas, but should not have dismissed the indictment:

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Here, the People filed their motion to compel the DNA test and served the motion on retained counsel in court. As the Appellate Division found, the trial court — in defendant’s absence — subsequently granted both the retained defense counsel’s motion to be relieved from representing defendant for failure to pay his fee and the People’s DNA discovery motion, which it granted based on the “putative consent” it inferred from retained counsel’s silence. Later the same day that counsel was relieved, defendant appeared in court. Knowing defendant was unrepresented, the court, rather than remain neutral, proceeded to act in place of counsel throughout an extensive colloquy, telling defendant that there were no bases on which to challenge the DNA sample order. In response to the court, defendant stated that he had not spoken with his attorney about the prosecution’s motion and did not wish to consent to giving a sample. Notwithstanding defendant’s entreaties, the court rejected his repeated requests for an attorney to advise him regarding the motion. Instead, the court told defendant “an attorney [was] not going to be able to help,” and that there was “no basis for fighting [the test].” When defendant said he did not “know the law,” the judge responded “I know the law.” On these facts, the Appellate Division correctly determined that “the pretrial proceedings concerning the DNA test were ‘critical’ within the meaning of the law … . Accordingly, defendant was deprived his right to counsel.

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We reject the dissent’s conclusion that defendant was not denied counsel during a critical stage of the proceeding, as that determination is contrary to law and would require that we distort the factual record. As the People concede, there was no express consent to their request for the DNA sample, either by defendant or by retained counsel. Nor was there any affirmative conduct or errant statement by defendant or counsel from which implied consent could be inferred. Instead, as the People acknowledge, the court issued its order based only on retained counsel’s failure to reply to the People’s motion to compel the buccal swab. Under the circumstances here, that is not a proper basis for finding defendant’s consent … . Further, as the record unambiguously shows, shortly after the court granted retained counsel’s request to withdraw — leaving defendant unrepresented — defendant appeared in court, expressly denied consent, and repeatedly stated he wanted counsel to assist him in responding to the People’s motion [FN5]. Yet, rather than appointing counsel, the court told defendant there was no basis to oppose the motion. Notwithstanding these facts, the dissent believes defendant was represented on the motion for the DNA sample; we do not. People v Smith, 2017 NY Slip Op 08798, CtApp 12-19-17

 

 

CRIMINAL LAW (DETERMINATION OF MOTION TO TAKE A BUCCAL SWAB FOR DNA TESTING IS A CRITICAL STAGE OF THE PROCEEDINGS REQUIRING REPRESENTATION BY COUNSEL, BECAUSE DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT’S GUILTY PLEAS MUST BE VACATED (CT APP))/ATTORNEYS (CRIMINAL LAW, DETERMINATION OF MOTION TO TAKE A BUCCAL SWAB FOR DNA TESTING IS A CRITICAL STAGE OF THE PROCEEDINGS REQUIRING REPRESENTATION BY COUNSEL, BECAUSE DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT’S GUILTY PLEAS MUST BE VACATED (CT APP))/DNA TESTING (CRIMINAL LAW, DETERMINATION OF MOTION TO TAKE A BUCCAL SWAB FOR DNA TESTING IS A CRITICAL STAGE OF THE PROCEEDINGS REQUIRING REPRESENTATION BY COUNSEL, BECAUSE DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT’S GUILTY PLEAS MUST BE VACATED (CT APP))

WHERE THE DEFENDANT AND THE IDENTIFYING WITNESS APPEAR TO BELONG TO DIFFERENT RACIAL GROUPS, THE DEFENDANT, UPON REQUEST, IS ENTITLED TO A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION, IRRESPECTIVE OF WHETHER THE ISSUE WAS RAISED AT TRIAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a two-judge concurring opinion, determined that, in a case where there is a question whether defendant and the identifying witness belong to different racial groups, upon request, a defendant is entitled to a so-called cross-racial identification jury instruction. The issue need not have come up at trial either during cross-examination of the identifying witness or by the presentation of expert opinion evidence:

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In light … the cross-race effect, which has been accepted by a near consensus in the relevant scientific community of cognitive and social psychologists, and recognizing the very significant part that inaccurate identifications play in wrongful convictions, we reach the following holding: in a case in which a witness’s identification of the defendant is at issue, and the identifying witness and defendant appear to be of different races, a trial court is required to give, upon request, during final instructions, a jury charge on the cross-race effect, instructing (1) that the jury should consider whether there is a difference in race between the defendant and the witness who identified the defendant, and (2) that, if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race and (b) whether the difference in race affected the accuracy of the witness’s identification. The instruction would not be required when there is no dispute about the identity of the perpetrator nor would it be obligatory when no party asks for the charge … . People v Boone, 2017 NY Slip Op 08713, CtApp 12-14-17

 

CRIMINAL LAW (JURY INSTRUCTIONS, IDENTIFICATION, WHERE THE DEFENDANT AND THE IDENTIFYING WITNESS APPEAR TO BELONG TO DIFFERENT RACIAL GROUPS, THE DEFENDANT, UPON REQUEST, IS ENTITLED TO A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION, IRRESPECTIVE OF WHETHER THE ISSUE WAS RAISED AT TRIAL (CT APP))/IDENTIFICATION (CRIMINAL LAW, JURY INSTRUCTIONS, IDENTIFICATION, WHERE THE DEFENDANT AND THE IDENTIFYING WITNESS APPEAR TO BELONG TO DIFFERENT RACIAL GROUPS, THE DEFENDANT, UPON REQUEST, IS ENTITLED TO A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION, IRRESPECTIVE OF WHETHER THE ISSUE WAS RAISED AT TRIAL (CT APP))/JURY INSTRUCTIONS (CRIMINAL LAW, CROSS-RACIAL IDENTIFICATION,  WHERE THE DEFENDANT AND THE IDENTIFYING WITNESS APPEAR TO BELONG TO DIFFERENT RACIAL GROUPS, THE DEFENDANT, UPON REQUEST, IS ENTITLED TO A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION, IRRESPECTIVE OF WHETHER THE ISSUE WAS RAISED AT TRIAL (CT APP))/CROSS-RACIAL IDENTIFICATION (CRIMINAL LAW, JURY INSTRUCTIONS, WHERE THE DEFENDANT AND THE IDENTIFYING WITNESS APPEAR TO BELONG TO DIFFERENT RACIAL GROUPS, THE DEFENDANT, UPON REQUEST, IS ENTITLED TO A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION, IRRESPECTIVE OF WHETHER THE ISSUE WAS RAISED AT TRIAL (CT APP))

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PARENTS’ MEDICAL MALPRACTICE ACTION FOR EXTRAORDINARY EXPENSES ASSOCIATED WITH THE CARE OF A CHILD BORN WITH A GENETIC DEFECT AFTER IN VITRO FERTILIZATION ACCRUES UPON THE BIRTH OF THE CHILD, NOT WHEN THE EGG WAS IMPLANTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Jude DiFiore, over a dissent, determined that the statute of limitations in these actions stemming from in vitro fertilization began to run upon the baby’s birth, not when the egg was implanted. Here the eggs were not screened for a genetic defect. The lawsuits were based upon the theory that, but for the malpractice, the babies would not have been born and sought compensation for the extraordinary expenses necessary to care for the children:

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Two couples — the Dennehys and the Farbers — sought in vitro fertilization (IVF) treatment from defendant Dr. Alan Copperman at defendant Reproductive Medicine Associates of New York, LLP (RMA). The couple discussed the possibility of using an egg donor. Copperman informed each couple that RMA screened donor candidates for all known genetic conditions for which testing is available, but did not state which conditions were included in the screening. The couple then matched with an anonymous egg donor and, after consenting to the IVF procedure, the plaintiff mother was implanted with fertilized embryos using the donor eggs. Pregnancy was confirmed and the couple was discharged to their obstetrician/gynecologist. Each plaintiff mother later gave birth without complications — the Dennehys had a single infant and the Farbers had twins. Following birth, Copperman learned that the egg donor had tested positive for the Fragile X trait, a chromosomal abnormality that can result in intellectual disability and other deficits. He informed the couples within one year of the births, and testing later confirmed that the Dennehys’ infant and one of the Farbers’ twins had the full Fragile X mutation. …

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In 1978, this Court recognized a new, narrow cause of action permitting parents to recover the extraordinary care and treatment expenses “accruing as a consequence of the birth” of a child with a disability … . This claim, “founded essentially upon a theory of negligence or medical malpractice,” requires “a duty flowing from defendants to [plaintiffs] and that the breach of that duty was the proximate cause of the birth of their infants” … . The claim is restricted to those instances in which the plaintiffs can demonstrate “that but for the defendants’ breach of their duty to advise plaintiffs, the latter would not have been required to assume these [extraordinary financial] obligations” … . In other words, parents bringing this type of action may seek to recover only “‘the increased financial obligation arising from the extraordinary medical treatment rendered the child during minority'”… . No recovery is allowed for any consequent psychic or emotional damages …, nor may parents recover the ordinary costs of raising a healthy child born by reason of so-called wrongful conception… . The extraordinary expenses claim belongs to the parents alone — the child cannot bring a claim for “wrongful life” … . This is because, as a matter of public policy, an infant born in an impaired state suffers no legally cognizable injury in being born compared to not having been born at all … .

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The action’s gravamen is that, but for defendants’ negligence, the parents would not have conceived or given birth to a child requiring extraordinary expenses for treatment and care. Plaintiffs allege that, by failing to take steps to detect that the egg donor was a carrier for Fragile X and therefore that the embryo may have had the Fragile X trait, defendants left the parents in an uninformed state as to whether to avert pregnancy or birth — and the associated costs resulting from birth. Given the nature of these allegations, it follows that until the alleged misconduct results in the birth of a child, there can be no extraordinary expenses claim. Moreover, we have stated that the “legally cognizable injury” is that the parents will incur extraordinary expenses to care for and treat the child … . These expenses arise “as a consequence of the birth” … , not just the conception. Prior to a live birth, it is impossible to ascertain whether parents will bear any extraordinary expenses … . Due to these unique circumstances, the cause of action accrues upon the birth of an infant with a disability. This date appropriately balances the competing statute of limitations policy concerns — it gives parents a reasonable opportunity to bring suit while at the same time limiting claims in a manner that provides certainty and predictability to medical professionals engaged in fertility treatment and prenatal care … . B.F. v Reproductive Medicine Assoc. of N.Y., LLP, 2017 NY Slip Op 08712, CtApp 12-14-17

 

NEGLIGENCE (MEDICAL MALPRACTICE, PARENTS’ MEDICAL MALPRACTICE ACTION FOR EXTRAORDINARY EXPENSES ASSOCIATED WITH THE CARE OF A CHILD BORN WITH A GENETIC DEFECT AFTER IN VITRO FERTILIZATION ACCRUES UPON THE BIRTH OF THE CHILD, NOT WHEN THE EGG WAS IMPLANTED (CT APP))/MEDICAL MALPRACTICE ( PARENTS’ MEDICAL MALPRACTICE ACTION FOR EXTRAORDINARY EXPENSES ASSOCIATED WITH THE CARE OF A CHILD BORN WITH A GENETIC DEFECT AFTER IN VITRO FERTILIZATION ACCRUES UPON THE BIRTH OF THE CHILD, NOT WHEN THE EGG WAS IMPLANTED (CT APP))/IN VITRO FERTILIZATION (MEDICAL MALPRACTICE, PARENTS’ MEDICAL MALPRACTICE ACTION FOR EXTRAORDINARY EXPENSES ASSOCIATED WITH THE CARE OF A CHILD BORN WITH A GENETIC DEFECT AFTER IN VITRO FERTILIZATION ACCRUES UPON THE BIRTH OF THE CHILD, NOT WHEN THE EGG WAS IMPLANTED (CT APP))/GENETIC DEFECT (MEDICAL MALPRACTICE, IN VITRO FERTILIZATION,  PARENTS’ MEDICAL MALPRACTICE ACTION FOR EXTRAORDINARY EXPENSES ASSOCIATED WITH THE CARE OF A CHILD BORN WITH A GENETIC DEFECT AFTER IN VITRO FERTILIZATION ACCRUES UPON THE BIRTH OF THE CHILD, NOT WHEN THE EGG WAS IMPLANTED (CT APP))/FRAGILE X TRAIT (MEDICAL MALPRACTICE, IN VITRO FERTILIZATION, PARENTS’ MEDICAL MALPRACTICE ACTION FOR EXTRAORDINARY EXPENSES ASSOCIATED WITH THE CARE OF A CHILD BORN WITH A GENETIC DEFECT AFTER IN VITRO FERTILIZATION ACCRUES UPON THE BIRTH OF THE CHILD, NOT WHEN THE EGG WAS IMPLANTED (CT APP))

REINSURANCE POLICIES TO BE INTERPRETED USING STANDARD CONTRACT PRINCIPLES, THERE IS NO PRESUMPTION OR RULE OF CONSTRUCTION CONCERNING WHETHER A COVERAGE CAP INCLUDES ONLY LOSS, OR INCLUDES BOTH LOSS AND LITIGATION COSTS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, answered a question from the Second Circuit about how to interpret reinsurance policies. The Court of Appeals held that a 2004 decision by that court did not impose a presumption or rule of construction to be applied to reinsurance policies. Rather each reinsurance policy is to be interpreted using standard contract principles. The underlying issue in the case is whether the cap in a reinsurance policy was limited to the amount of loss, or whether the cap included litigation costs. The opinion includes a clear explanation of the two types of reinsurance policies (not summarized here):

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… New York law does not impose either a rule, or a presumption, that a limitation on liability clause necessarily caps all obligations owed by a reinsurer, such as defense costs, without regard for the specific language employed therein. Global Reins. Corp. of Am. v Century Indem. Co., 2017 NY Slip Op 08711, CtApp 12-14-17

 

INSURANCE LAW (REINSURANCE POLICIES TO BE INTERPRETED USING STANDARD CONTRACT PRINCIPLES, THERE IS NO PRESUMPTION OR RULE OF CONSTRUCTION CONCERNING WHETHER A COVERAGE CAP INCLUDES ONLY LOSS, OR INCLUDES BOTH LOSS AND LITIGATION COSTS (CT APP))/REINSURANCE (REINSURANCE POLICIES TO BE INTERPRETED USING STANDARD CONTRACT PRINCIPLES, THERE IS NO PRESUMPTION OR RULE OF CONSTRUCTION CONCERNING WHETHER A COVERAGE CAP INCLUDES ONLY LOSS, OR INCLUDES BOTH LOSS AND LITIGATION COSTS (CT APP))

LEAD AGENCY TOOK THE REQUISITE HARD LOOK AT LEAD DUST AND NOISE CONCERNS RAISED IN CONNECTION WITH CONSTRUCTION NEAR A SCHOOL IN NEW YORK CITY AND, AFTER IMPOSING MITIGATION MEASURES, PROPERLY APPROVED THE CONSTRUCTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the challenge to the Final Environmental Impact Statement (FEIS) allowing construction of a 400 bed residential facility near a school in New York City was properly denied. The petitioners (neighbors and parents of school children) were primarily concerned with lead dust and noise. The court found that the lead agency (Department of Health [DOH]) had taken the requisite “hard look” at the lead dust and noise concerns (which were addressed by mitigation measures). The opinion includes a concise and uncomplicated explanation of the environmental-impact-statement procedures required by the State Environmental Quality Review Act (SEQRA):

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Preventing the migration and inhalation of lead dust was one of the environmental risks the agency specifically set out to measure and mitigate … . In recognition of the risk, DOH imposed a battery of construction protocols to monitor and contain airborne dust. DOH reasonably concluded that these mitigation measures were sufficient to ensure that airborne lead levels remained within acceptable … limits, and explained its assessment fully in the DEIS [Draft Environmental Impact Statement] and FEIS. …

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DOH conducted a detailed analysis of construction noise, employing assumptions based on reasonable worst case scenarios. In assessing both the dangers of construction noise and the most appropriate mitigation measures, DOH acted within its “considerable latitude in evaluating environmental effects and choosing among alternatives” (id.). The fact that petitioners would have preferred different or additional mitigation measures presents a difference of opinion about the best way to address the environmental impacts that the agency, not the courts, must consider and resolve. In fact, the agency considered the opinions of petitioners’ experts and determined that the lower noise levels for which they advocated were “not often achieved in densely-populated urban locations such as NYC.” DOH also considered that its levels did not exceed the City Manual’s recommendation. Friends of P.S. 163, Inc. v Jewish Home Lifecare, Manhattan, 2017 NY Slip Op 08621, CtApp 12-12-17

 

ENVIRONMENTAL LAW (LEAD AGENCY TOOK THE REQUISITE HARD LOOK AT LEAD DUST AND NOISE CONCERNS RAISED IN CONNECTION WITH CONSTRUCTION NEAR A SCHOOL IN NEW YORK CITY AND, AFTER IMPOSING MITIGATION MEASURES, PROPERLY APPROVED THE CONSTRUCTION (CT APP))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (LEAD AGENCY TOOK THE REQUISITE HARD LOOK AT LEAD DUST AND NOISE CONCERNS RAISED IN CONNECTION WITH CONSTRUCTION NEAR A SCHOOL IN NEW YORK CITY AND, AFTER IMPOSING MITIGATION MEASURES, PROPERLY APPROVED THE CONSTRUCTION (CT APP))/ENVIRONMENTAL IMPACT STATEMENTS (LEAD AGENCY TOOK THE REQUISITE HARD LOOK AT LEAD DUST AND NOISE CONCERNS RAISED IN CONNECTION WITH CONSTRUCTION NEAR A SCHOOL IN NEW YORK CITY AND, AFTER IMPOSING MITIGATION MEASURES, PROPERLY APPROVED THE CONSTRUCTION (CT APP))/LEAD DUST (ENVIRONMENTAL LAW, LEAD AGENCY TOOK THE REQUISITE HARD LOOK AT LEAD DUST AND NOISE CONCERNS RAISED IN CONNECTION WITH CONSTRUCTION NEAR A SCHOOL IN NEW YORK CITY AND, AFTER IMPOSING MITIGATION MEASURES, PROPERLY APPROVED THE CONSTRUCTION (CT APP))/NOISE (ENVIRONMENTAL LAW, LEAD AGENCY TOOK THE REQUISITE HARD LOOK AT LEAD DUST AND NOISE CONCERNS RAISED IN CONNECTION WITH CONSTRUCTION NEAR A SCHOOL IN NEW YORK CITY AND, AFTER IMPOSING MITIGATION MEASURES, PROPERLY APPROVED THE CONSTRUCTION (CT APP))

EVEN WHERE THE CLASS HAS NOT BEEN CERTIFIED, CPLR 908 REQUIRES THE PUTATIVE CLASS MEMBERS BE GIVEN NOTICE OF THE SETTLEMENT OR DISMISSAL OF THE ACTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a three-judge dissent, determined notice of the settlement or dismissal of a class action lawsuit, where the class has not been certified, must be provided to all members of the putative class pursuant to CPLR 908:

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CPLR 908 provides that “[a] class action shall not be dismissed, discontinued, or compromised without the approval of the court,” and that “[n]otice of the proposed dismissal, discontinuance, or compromise shall be given to all members of the class in such manner as the court directs.” On this appeal, we must determine whether CPLR 908 applies only to certified class actions, or also to class actions that are settled or dismissed before the class has been certified. We conclude that CPLR 908 applies in the pre-certification context. As a result, notice to putative class members of a proposed dismissal, discontinuance, or compromise must be given. Desrosiers v Perry Ellis Menswear, LLC, 2017 NY Slip Op 08620, CtApp 12-12-17

 

CIVIL PROCEDURE (EVEN WHERE THE CLASS HAS NOT BEEN CERTIFIED, CPLR 908 REQUIRES THE PUTATIVE CLASS MEMBERS BE GIVEN NOTICE OF THE SETTLEMENT OR DISMISSAL OF THE ACTION (CT APP))/CLASS ACTIONS (NOTICE OF SETTLEMENT OR DISMISSAL EVEN WHERE THE CLASS HAS NOT BEEN CERTIFIED, CPLR 908 REQUIRES THE PUTATIVE CLASS MEMBERS BE GIVEN NOTICE OF THE SETTLEMENT OR DISMISSAL OF THE ACTION (CT APP))/CPLR 908 (CLASS ACTIONS, EVEN WHERE THE CLASS HAS NOT BEEN CERTIFIED, CPLR 908 REQUIRES THE PUTATIVE CLASS MEMBERS BE GIVEN NOTICE OF THE SETTLEMENT OR DISMISSAL OF THE ACTION (CT APP))

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THE RESIDENTIAL MORTGAGE-BACKED SECURITIES CONTRACTS PROVIDED FOR THE SOLE REMEDY OF CURE AND REPURCHASE, PLAINTIFF TRUSTEE’S CAUSES OF ACTION FOR GENERAL CONTRACT DAMAGES DISMISSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over an extensive two-judge dissent, determined plaintiff trustee (HSBC) was limited to the cure and replurchase remedy described in the contracts for these residential mortgage-backed securities, and could not sue for general contract damages:

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In these appeals stemming from four residential mortgage-backed securities (RMBS) transactions, we are asked to decide whether claims for general contract damages based on alleged breaches of a “no untrue statement” provision can withstand a motion to dismiss based on a contract provision mandating cure or repurchase as the sole remedy for breaches of mortgage loan-specific representations and warranties. We hold that, inasmuch as the claims for general contract damages at issue here are grounded in alleged breaches of the mortgage loan-specific representations and warranties to which the limited remedy fashioned by the sophisticated parties applies, plaintiffs’ claims for general contract damages should be dismissed. * * *

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.. .[I]t is readily apparent from the face of the complaints that the alleged breaches of the No Untrue Statement Provision are, in fact, based upon alleged breaches of the Mortgage Representations. … [T]he sole remedy for breaches of the Mortgage Representations is cure or repurchase. HSBC cannot “subvert this ‘exclusive remedies’ limitation” of liability by simply re-characterizing its claims … . Rather, “[r]eading the [contracts] as a harmonious and integrated whole” …  and honoring “the exclusive remedy that the[se] [sophisticated] parties fashioned” … , we conclude that the Sole Remedy Provision applies, precluding HSBC from seeking general contract damages for the particular claims challenged on this appeal. Nomura Home Equity Loan, Inc., Series 2006-FM2 v Nomura Credit & Capital, Inc., 2017 NY Slip Op 08622, CtApp 12-12-17

 

SECURITIES (THE RESIDENTIAL MORTGAGE-BACKED SECURITIES CONTRACTS PROVIDED FOR THE SOLE REMEDY OF CURE AND REPURCHASE, PLAINTIFF TRUSTEE’S CAUSES OF ACTION FOR GENERAL CONTRACT DAMAGES DISMISSED (CT APP))/CONTRACT LAW (THE RESIDENTIAL MORTGAGE-BACKED SECURITIES CONTRACTS PROVIDED FOR THE SOLE REMEDY OF CURE AND REPURCHASE, PLAINTIFF TRUSTEE’S CAUSES OF ACTION FOR GENERAL CONTRACT DAMAGES DISMISSED (CT APP))/RESIDENTIAL MORTGAGE-BACKED SECURITIES (THE RESIDENTIAL MORTGAGE-BACKED SECURITIES CONTRACTS PROVIDED FOR THE SOLE REMEDY OF CURE AND REPURCHASE, PLAINTIFF TRUSTEE’S CAUSES OF ACTION FOR GENERAL CONTRACT DAMAGES DISMISSED (CT APP))/SOLE REMEDY PROVISIONS (THE RESIDENTIAL MORTGAGE-BACKED SECURITIES CONTRACTS PROVIDED FOR THE SOLE REMEDY OF CURE AND REPURCHASE, PLAINTIFF TRUSTEE’S CAUSES OF ACTION FOR GENERAL CONTRACT DAMAGES DISMISSED (CT APP))

VIOLATION OF PROBATION PETITION FACIALLY INSUFFICIENT, TIME, PLACE AND MANNER OF ALLEGED VIOLATIONS NOT STATED (CT APP).

The Court of Appeals, reversing the appellate division, determined the violation of probation petition was insufficient on its face and should have been dismissed:

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County Court determined that defendant violated the terms of his probation, which prohibited him from associating with any convicted criminals, when on four occasions he picked up and walked the dog he once shared with his former intimate partner, who had a DWI misdemeanor conviction. The amended violation of probation petition, which listed four dates on which defendant allegedly “had contact with” a convicted criminal, but did not include any additional information, was facially insufficient as it did not comport with the statutory requirement of providing probationer with the time, place, and manner of the alleged violation (CPL 410.70). Here, the defect in the amended petition was not cured by defendant’s questions posed to the court at the prior arraignment, the substance of which indicated that he did not have notice of the manner in which he allegedly violated a condition of his probation. People v Kislowski, 2017 NY Slip Op 08169, CtApp 11-21-17

 

CRIMINAL LAW (VIOLATION OF PROBATION PETITION FACIALLY INSUFFICIENT, TIME, PLACE AND MANNER OF ALLEGED VIOLATIONS NOT STATED (CT APP))/VIOLATION OF PROBATION  (VIOLATION OF PROBATION PETITION FACIALLY INSUFFICIENT, TIME, PLACE AND MANNER OF ALLEGED VIOLATIONS NOT STATED (CT APP))/PROBATION (CRIMINAL LAW, VIOLATION OF PROBATION PETITION FACIALLY INSUFFICIENT, TIME, PLACE AND MANNER OF ALLEGED VIOLATIONS NOT STATED (CT APP))

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STATUTE REDUCING HEALTH BENEFITS FOR STATE EMPLOYEES DID NOT VIOLATE THE JUDICIAL COMPENSATION CLAUSE OF THE NEW YORK STATE CONSTITUTION (CT APP).

The Court of Appeals, in a per curiam opinion, with two concurring opinions, determined that the reduction in health benefits provided under the Civil Service Law did not violate the Judicial Compensation Clause of the NYS Constitution:

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The issue presented on this appeal is whether Civil Service Law § 167 (8), as amended, authorizing a reduction of the State’s contribution to health insurance benefits for State employees, including members of the State judiciary, violates the Judicial Compensation Clause of the State Constitution  … . We conclude the State’s contribution is not judicial compensation protected from direct diminution by the Compensation Clause, and the reductions in contributions do not have the effect of singling out the judiciary for disadvantageous treatment. Therefore, plaintiffs’ constitutional challenge fails. Bransten v State of New York, 2017 NY Slip Op 08168, CtApp 11-21-17

 

CONSTITUTIONAL LAW (NYS) (STATUTE REDUCING HEALTH BENEFITS FOR STATE EMPLOYEES DID NOT VIOLATE THE JUDICIAL COMPENSATION CLAUSE OF THE NEW YORK STATE CONSTITUTION (CT APP))/JUDGES (CONSTITUTIONAL LAW, STATUTE REDUCING HEALTH BENEFITS FOR STATE EMPLOYEES DID NOT VIOLATE THE JUDICIAL COMPENSATION CLAUSE OF THE NEW YORK STATE CONSTITUTION (CT APP))/JUDGES (STATUTE REDUCING HEALTH BENEFITS FOR STATE EMPLOYEES DID NOT VIOLATE THE JUDICIAL COMPENSATION CLAUSE OF THE NEW YORK STATE CONSTITUTION (CT APP))/EMPLOYMENT LAW (JUDGES, STATUTE REDUCING HEALTH BENEFITS FOR STATE EMPLOYEES DID NOT VIOLATE THE JUDICIAL COMPENSATION CLAUSE OF THE NEW YORK STATE CONSTITUTION (CT APP))/JUDICIAL COMPENSATION CLAUSE (NYS CONSTITUTION, STATUTE REDUCING HEALTH BENEFITS FOR STATE EMPLOYEES DID NOT VIOLATE THE JUDICIAL COMPENSATION CLAUSE OF THE NEW YORK STATE CONSTITUTION (CT APP))

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PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over two concurring opinions, answered two certified questions from the Second Circuit. The defendant in the federal suit is Battery Park City Authority (BPCA), a public benefit corporation, which was sued by plaintiffs alleging personal injury caused by 9-11 clean-up of properties owned by BPCA. The legislature had enacted an amendment to the General Municpal Law to allow the plaintiffs to file late notices of claim. BPCA successfully argued in federal district court that the amendment extending the time to file notices of claim was unconstitutional as applied. When the matter came before the Second Circuit on appeal, the Second Circuit asked the Court of Appeals to determine whether the BPCA should be treated like the state for purposes of the capacity to challenge a statute (answer: yes) and asked for clarification of the standard for analyzing due process in this context (answer: whether the statute was enacted as a reasonable response in order to remedy an injustice):

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We … hold that, under the capacity rule, public benefit corporations have no greater stature to challenge the constitutionality of State statutes than do municipal corporations or other local governmental entities. Of course, our holding today does not mean that public benefit corporations can never raise such constitutional challenges; like municipalities, they may avail themselves of an exception to the general rule … . However, courts need not engage in a “particularized inquiry” to determine whether a public benefit corporation should first be treated like the State. Unlike in other contexts, for purposes of our capacity bar, every public benefit corporation is the State. * * *

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… [A] claim-revival statute will satisfy the Due Process Clause of the State Constitution if it was enacted as a reasonable response in order to remedy an injustice. Matter of World Trade Ctr. Lower Manhattan Disaster Site Litigation., 2017 NY Slip Op 08166, CtApp 11-21-17

 

MUNICIPAL LAW (NOTICES OF CLAIM, PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP))/CONSTITUTIONAL LAW (PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP))/9-11 (NOTICES OF CLAIM, PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP))/BATTER PARK CITY AUTHORITY (9-11 CLEANUP, (NOTICES OF CLAIM, PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP))/CAPACITY TO CHALLENGE STATUTE (PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP))

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