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2ND DEPT USED THE WRONG STANDARD FOR APPLYING THE CONFIDENTIAL SOURCE EXEMPTION TO A FREEDOM OF INFORMATION LAW (FOIL) REQUEST FOR DOCUMENTS, CASE REMITTED, PETITIONER SOUGHT DOCUMENTS RELATING TO A REVIEW OF HIS SEX OFFENSE CASE WHICH WAS PROSECUTED AMID NATIONWIDE HYSTERIA OVER ALLEGATIONS OF RITUAL ABUSE AT DAY CARE CENTERS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge partial dissent, determined that the standard for the confidentiality-source exemption for documents sought under the Freedom of Information Law (FOIL) in the 2nd Department was incorrect and remitted the matter. The requested documents relate to a review of petitioner’s conviction by a panel specifically created for that review. Petitioner had pled guilty to several sex offenses at a time when a hysteria surrounding allegations of ritual child abuse at day care centers was sweeping the country:

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The legislature’s policy of broad public access, as expressed in FOIL, dictates that the exemption for confidential sources and information be narrowly circumscribed. Therefore disclosure under FOIL can only be refused pursuant to section 87 (2) (e) (iii) if the agency presents a “particularized and specific justification for denying access” … , based on an express promise of confidentiality to the source, or by establishing that, under the circumstances of the particular case, the confidentiality of the source or information can be reasonably inferred.

Application of this rule is case and information specific, and depends on the particular facts and circumstances. In determining whether information obtained in the course of a criminal investigation should be treated as confidential or whether a source spoke on the assumption that the source’s identity or statements would remain confidential, courts may consider, as they deem relevant, such factors as the nature of the crime, the source of the information in relation to the crime, and the content of the statements or information. Where the content of a statement or information and the circumstances surrounding its compilation by law enforcement convince a court that its confidentiality can be reasonably inferred, it may be withheld or released with appropriate redactions pursuant to section 87 (2) (e) (iii). Otherwise, absent an explicit assurance of confidentiality, it may not be withheld or redacted under that FOIL exemption.

Here, because the [2nd] Department majority misconstrued the FOIL exemption asserted by respondent, the order below must be reversed and the matter remitted for consideration under the correct standard. Matter of Friedman v Rice, 2017 NY Slip Op 08167, CtApp 11-21-17

 

FREEDOM OF INFORMATION LAW (FOIL) (2ND DEPARTMENT USED THE WRONG STANDARD FOR APPLYING THE CONFIDENTIAL SOURCE EXEMPTION TO A FREEDOM OF INFORMATION LAW (FOIL) REQUEST FOR DOCUMENTS, CASE REMITTED, PETITIONER SOUGHT DOCUMENTS RELATING TO A REVIEW OF HIS SEX OFFENSE CASE WHICH WAS PROSECUTED AMID NATIONWIDE HYSTERIA OVER ALLEGATIONS OF RITUAL ABUSE AT DAY CARE CENTERS (CT APP))/CONFIDENTIAL SOURCE EXEMPTION (FREEDOM OF INFORMATION LAW (FOIL), 2ND DEPARTMENT USED THE WRONG STANDARD FOR APPLYING THE CONFIDENTIAL SOURCE EXEMPTION TO A FREEDOM OF INFORMATION LAW (FOIL) REQUEST FOR DOCUMENTS, CASE REMITTED, PETITIONER SOUGHT DOCUMENTS RELATING TO A REVIEW OF HIS SEX OFFENSE CASE WHICH WAS PROSECUTED AMID NATIONWIDE HYSTERIA OVER ALLEGATIONS OF RITUAL ABUSE AT DAY CARE CENTERS (CT APP))

TRIAL JUDGE DID NOT INQUIRE INTO DEFENDANT’S SERIOUS REQUEST FOR ANOTHER ATTORNEY, CONVICTION REVERSED AND NEW TRIAL ORDERED (CT APP).

The Court of Appeals reversed defendant’s conviction and ordered a new trial because the trial judge did not conduct a sufficient inquiry into defendant’s request for another attorney:

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We agree with defendant that the trial court failed to adequately inquire into his “seemingly serious request[]” to substitute counsel … . Defendant’s request was supported by “specific factual allegations of ‘serious complaints about counsel'” … , and a “minimal inquiry” into “the nature of the disagreement or its potential for resolution” was warranted … . Accordingly, the trial court abused its discretion by failing to conduct such an inquiry. People v Smith, 2017 NY Slip Op 08165, CtApp 11-21-17

Similar issue and result in People v Dodson, 2017 NY Slip Op 08171, CtApp 11-21-17

CRIMINAL LAW (ATTORNEYS, TRIAL JUDGE DID NOT INQUIRE INTO DEFENDANT’S SERIOUS REQUEST FOR ANOTHER ATTORNEY, CONVICTION REVERSED AND NEW TRIAL ORDERED (CT APP))/ATTORNEYS (CRIMINAL LAW,  TRIAL JUDGE DID NOT INQUIRE INTO DEFENDANT’S SERIOUS REQUEST FOR ANOTHER ATTORNEY, CONVICTION REVERSED AND NEW TRIAL ORDERED (CT APP))

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (CT APP).

The Court of Appeals, reversing the appellate division, over a dissent, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff tripped over a cord tied to a barrel in a parking lot. The majority offered no factual explanation for the reversal. Lau v Margaret E. Pescatore Parking, Inc., 2017 NY Slip Op 08170, CtApp 11-21-17

 

NEGLIGENCE (SLIP AND FALL, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (CT APP))/SLIP AND FALL (DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS SLIP AND FALL CASE (CT APP))

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GEORGIA BURGLARY STATUTE WAS EQUIVALENT TO A NEW YORK VIOLENT FELONY DESPITE THE ABSENCE OF AN EXPLICIT INTENT ELEMENT BECAUSE THE LESSER INCLUDED OFFENSE OF CRIMINAL TRESPASS INCLUDED A KNOWINGLY ELEMENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the appellate division, over a two-judge concurring opinion, determined a Georgia burglary statute was equivalent to a New York violent felony and therefore defendant was properly sentenced as and second violent felony offender. The Georgia statute does not explicitly include intent as an element. However, a lesser included offense (the Georgia criminal trespass statute) in the Georgia includes a “knowingly” element:

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Under Georgia statutory law, “[a] crime is included in another crime” … — i.e., a crime is a lesser included offense of another crime — when, among other things, “[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged” … . …

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Georgia statutory law further provides that “[a] person commits the offense of criminal trespass when he or she knowingly and without authority . . . [e]nters upon the land or premises of another person . . . for an unlawful purpose” … . Georgia case law, in turn, provides that criminal trespass is (and was at the time defendant violated the subject Georgia statute) a lesser included offense of burglary … . Inasmuch as the “lesser” Georgia crime of criminal trespass contains a “knowingly” mens rea … , the “entry” component of the “greater” Georgia burglary statute in question … necessarily must have a culpable mental state of at least “knowingly.” In other words, the mental state for the greater crime logically cannot be less than the mental state for the lesser crime and, for the foregoing reasons, we conclude that the Georgia crime corresponds to a New York violent felony … . People v Helms, 2017 NY Slip Op 08160, CtApp 11-20-17

 

CRIMINAL LAW (GEORGIA BURGLARY STATUTE WAS EQUIVALENT TO A NEW YORK VIOLENT FELONY DESPITE THE ABSENCE OF AN EXPLICIT INTENT ELEMENT BECAUSE THE LESSER INCLUDED OFFENSE OF CRIMINAL TRESPASS INCLUDED A KNOWINGLY ELEMENT (CT APP))/SENTENCING (SECOND VIOLENT FELONY OFFENDER, GEORGIA BURGLARY STATUTE WAS EQUIVALENT TO A NEW YORK VIOLENT FELONY DESPITE THE ABSENCE OF AN EXPLICIT INTENT ELEMENT BECAUSE THE LESSER INCLUDED OFFENSE OF CRIMINAL TRESPASS INCLUDED A KNOWINGLY ELEMENT (CT APP))/SECOND VIOLENT FELONY OFFENDER (SENTENCING, GEORGIA BURGLARY STATUTE WAS EQUIVALENT TO A NEW YORK VIOLENT FELONY DESPITE THE ABSENCE OF AN EXPLICIT INTENT ELEMENT BECAUSE THE LESSER INCLUDED OFFENSE OF CRIMINAL TRESPASS INCLUDED A KNOWINGLY ELEMENT (CT APP))/

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CAYMAN ISLANDS RULE GOVERNING SHAREHOLDER DERIVATIVE ACTIONS IS PROCEDURAL, NOT SUBSTANTIVE, FAILURE TO COMPLY WITH RULE DOES NOT BAR SUIT IN NEW YORK (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, reversing the appellate division, determined that a Cayman Islands rule (Rule 12A) governing prerequisites for bringing a shareholder derivative action was procedural, not substantive. Therefore the New York suit, which must apply Cayman Islands substantive law, should not have been dismissed for failure to comply with the rule. Whether plaintiff had standing to sue under substantive Cayman Islands law was not determined by the Court of Appeals:

 

In Tanges [93 NY2d 48] we … described general policy considerations that ought to be weighed when determining whether a rule is substantive or procedural. Specifically, we consider whether our determination would impose a burden on the foreign court (Connecticut in that instance) or federal courts operating under diversity rules and whether it would threaten to cause delay in the “conduct of judicial business and impair judicial efficiency” … . Here, these factors further weigh in favor of our conclusion that Rule 12A is procedural.

Holding that Rule 12A is procedural does not impose a burden on our courts, or the courts of the Cayman Islands (see Tanges, 93 NY2d at 58). However, were Rule 12A held to be substantive, it is unclear what procedural path a party seeking to bring a derivative action in New York on behalf of a Cayman company would follow to comply with Rule 12A. …

Therefore, a Tanges analysis also leads to the conclusion that Rule 12A is procedural in nature. Because the procedural law of the forum typically applies under our conflict of law rules … , plaintiff’s failure to first comply with Rule 12A’s leave application procedure does not bar his derivative claims … . Davis v Scottish Re Group Ltd., 2017 NY Slip Op 08157, CtApp 11-20-17

 

CIVIL PROCEDURE (SHAREHOLDER DERIVATIVE ACTION, CAYMAN ISLANDS LAW, CAYMAN ISLANDS RULE GOVERNING SHAREHOLDER DERIVATIVE ACTIONS IS PROCEDURAL, NOT SUBSTANTIVE, FAILURE TO COMPLY WITH RULE DOES NOT BAR SUIT IN NEW YORK (CT APP))/CORPORATION LAW  (SHAREHOLDER DERIVATIVE ACTION, CAYMAN ISLANDS LAW, CAYMAN ISLANDS RULE GOVERNING SHAREHOLDER DERIVATIVE ACTIONS IS PROCEDURAL, NOT SUBSTANTIVE, FAILURE TO COMPLY WITH RULE DOES NOT BAR SUIT IN NEW YORK (CT APP))/SHAREHOLDER DERIVATIVE ACTION (CORPORATION LAW, CAYMAN ISLANDS RULE GOVERNING SHAREHOLDER DERIVATIVE ACTIONS IS PROCEDURAL, NOT SUBSTANTIVE, FAILURE TO COMPLY WITH RULE DOES NOT BAR SUIT IN NEW YORK (CT APP))/DERIVATIVE ACTION (SHAREHOLDER DERIVATIVE ACTION, CAYMAN ISLANDS LAW, CAYMAN ISLANDS RULE GOVERNING SHAREHOLDER DERIVATIVE ACTIONS IS PROCEDURAL, NOT SUBSTANTIVE, FAILURE TO COMPLY WITH RULE DOES NOT BAR SUIT IN NEW YORK (CT APP))/CAYMAN ISLANDS LAW SHAREHOLDER DERIVATIVE ACTION, CAYMAN ISLANDS LAW, CAYMAN ISLANDS RULE GOVERNING SHAREHOLDER DERIVATIVE ACTIONS IS PROCEDURAL, NOT SUBSTANTIVE, FAILURE TO COMPLY WITH RULE DOES NOT BAR SUIT IN NEW YORK (CT APP))

INSURANCE LAW 3240 ALLOWS A DIRECT CAUSE OF ACTION AGAINST INSURERS IF THE INSUREDS AND RISKS ARE IN NEW YORK, NOT ONLY WHEN THE POLICY IS ISSUED OR DELIVERED IN NEW YORK (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a three judge dissenting opinion, reversing the appellate division, determined several motions to dismiss in this insurance-coverage dispute should not have been granted. Plaintiff’s decedent was killed when a DHL delivery truck driven by an employee of another company crossed the center line, causing a head-on crash. At issue was the reach of Insurance Law 3240 with respect to an insurance policy issued to DHL by AAIC. The appellate division held that Insurance Law 3240 did not allow suit because the policy was not “issued or delivered in this state.” The Court of Appeals held the suit is allowed under Insurance Law 3240 because the insureds and risks are located in New York (two other issues, whether the DHL truck was a “hired auto” and whether it was driven with “permission” are not summarized here):

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AAIC adopts the Appellate Division’s rationale that because AAIC’s policy was issued in New Jersey and delivered in Washington and then in Florida, it was neither issued nor delivered in New York, and therefore plaintiff cannot recover from AAIC pursuant to Insurance Law § 3420. …

Insurance Law § 3420 allows a limited cause of action on behalf of injured parties directly against insurers. Section 3420 applies to policies and contracts “issued or delivered in this state” … . Insurance Law § 3420 does not define the term “issued or delivered in this state,” but other provisions of the Insurance Law are instructive: “[T]he proper interpretation of the term ‘issued or delivered in this state’ refers both to a policy issued for delivery in New York, and a policy issued for delivery outside of New York” … . In Preserver, we interpreted section 3420 (d), which then required insurers to provide written notice when disclaiming coverage under policies “issued for delivery” in New York. We held that “[a] policy is ‘issued for delivery’ in New York if it covers both insureds and risks located in this state” (10 NY3d at 642). Thus, under Preserver, “issued for delivery” was interpreted to mean where the risk to be insured was located — not where the policy document itself was actually handed over or mailed to the insured. We interpreted section 3420 to provide a benefit — deliberately in derogation of the common law — to New Yorkers whenever a policy covers “insureds and risks located in this state” … . Applying the Preserver standard to the facts of this case, it is clear that DHL is “located in” New York because it has a substantial business presence and creates risks in New York. It is even clearer that DHL purchased liability insurance covering vehicle-related risks arising from vehicles delivering its packages in New York, because its insurance agreements say so. Carlson v American Intl. Group, Inc., 2017 NY Slip Op 08163, CtApp 11-20-17

 

INSURANCE LAW (INSURANCE LAW 3240 ALLOWS A DIRECT CAUSE OF ACTION IF THE INSUREDS AND RISKS ARE IN NEW YORK, NOT ONLY WHEN THE POLICY IS ISSUED OR DELIVERED IN NEW YORK (CT APP))/INSURANCE LAW 3240  (INSURANCE LAW 3240 ALLOWS A DIRECT CAUSE OF ACTION IF THE INSUREDS AND RISKS ARE IN NEW YORK, NOT ONLY WHEN THE POLICY IS ISSUED OR DELIVERED IN NEW YORK (CT APP))

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ONCE THE NEGLECT PETITION WHICH LED TO THE PLACEMENT OF THE CHILD IN FOSTER CARE HAS BEEN DISMISSED, FAMILY COURT LOSES JURISDICTION AND CANNOT ENTERTAIN PERMANENCY HEARINGS TO CONTINUE FOSTER CARE PLACEMENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the appellate division, determined that, with respect to a child who has been removed from the home and placed in foster care based upon a pending neglect petition, once the underlying neglect petition has been dismissed, Family Court loses jurisdiction of the matter and cannot entertain permanency hearings to continue the foster care placement:

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Here, the Department seizes on a hyperliteral reading of [Family Court Act] section 1088, divorced from all context, to argue that Family Court’s pre-petition placement of Jamie J. under (Family Court Act] section 1022 triggered a continuing grant of jurisdiction that survives the eventual dismissal of the neglect petition. In other words, even if the Family Court removes a child who has not been neglected or abused, it has jurisdiction to continue that child’s placement in foster care until and unless it decides otherwise. Section 1088’s place in the overall statutory scheme, the legislative history of article 10-A, and the dictates of parents’ and children’s constitutional rights to remain together compel the opposite conclusion: Family Court’s jurisdiction terminates upon dismissal of the original neglect or abuse petition. Matter of Jamie J. (Michelle E.C.), 2017 NY Slip Op 08161, CtApp 11-20-17

 

FAMILY LAW (ONCE THE NEGLECT PETITION WHICH LED TO THE PLACEMENT OF THE CHILD IN FOSTER CARE HAS BEEN DISMISSED, FAMILY COURT LOSES JURISDICTION AND CANNOT ENTERTAIN PERMANENCY HEARINGS TO CONTINUE FOSTER CARE PLACEMENT (CT APP))/NEGLECT (FAMILY LAW, ONCE THE NEGLECT PETITION WHICH LED TO THE PLACEMENT OF THE CHILD IN FOSTER CARE HAS BEEN DISMISSED, FAMILY COURT LOSES JURISDICTION AND CANNOT ENTERTAIN PERMANENCY HEARINGS TO CONTINUE FOSTER CARE PLACEMENT (CT APP))/FOSTER CARE (FAMILY LAW, ONCE THE NEGLECT PETITION WHICH LED TO THE PLACEMENT OF THE CHILD IN FOSTER CARE HAS BEEN DISMISSED, FAMILY COURT LOSES JURISDICTION AND CANNOT ENTERTAIN PERMANENCY HEARINGS TO CONTINUE FOSTER CARE PLACEMENT (CT APP))/PERMANENCY HEARINGS (FAMILY LAW, NEGLECT, ONCE THE NEGLECT PETITION WHICH LED TO THE PLACEMENT OF THE CHILD IN FOSTER CARE HAS BEEN DISMISSED, FAMILY COURT LOSES JURISDICTION AND CANNOT ENTERTAIN PERMANENCY HEARINGS TO CONTINUE FOSTER CARE PLACEMENT (CT APP))/CIVIL PROCEDURE (FAMILY LAW, JURISDICTION, ONCE THE NEGLECT PETITION WHICH LED TO THE PLACEMENT OF THE CHILD IN FOSTER CARE HAS BEEN DISMISSED, FAMILY COURT LOSES JURISDICTION AND CANNOT ENTERTAIN PERMANENCY HEARINGS TO CONTINUE FOSTER CARE PLACEMENT (CT APP))/JURISDICTION (CIVIL PROCEDURE, FAMILY LAW, (ONCE THE NEGLECT PETITION WHICH LED TO THE PLACEMENT OF THE CHILD IN FOSTER CARE HAS BEEN DISMISSED, FAMILY COURT LOSES JURISDICTION AND CANNOT ENTERTAIN PERMANENCY HEARINGS TO CONTINUE FOSTER CARE PLACEMENT (CT APP))

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STANDARD FOR PUNITIVE DAMAGES IN EMPLOYMENT DISCRIMINATION SUIT PURSUANT TO THE NYC HUMAN RIGHTS LAW DETERMINED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a dissenting opinion, answering a certified question from the Second Circuit, determined the appropriate standard of proof for the imposition of punitive damages in an employment discrimination (here gender and pregnancy discrimination) suit pursuant to the New York City Human Rights Law (NYCHRL):

The New York City Human Rights Law makes clear that punitive damages are available for violations of the statute, but does not specify a standard for when such damages should be awarded. The Second Circuit has, by certified question, asked us to determine the applicable standard. We conclude that, consistent with the New York City Council’s directive to construe the New York City Human Rights Law liberally, the common law standard as articulated in Home Insurance Co. v American Home Prods. Corp. (75 NY2d 196, 203-204 [1990]) applies. Accordingly, a plaintiff is entitled to punitive damages where the wrongdoer’s actions amount to willful or wanton negligence, or recklessness, or where there is “a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard” … . Chauca v Abraham, 2017 NY Slip Op 08158, CtApp 11-20-17

 

EMPLOYMENT LAW (DISCRIMINATION, STANDARD FOR PUNITIVE DAMAGES IN EMPLOYMENT DISCRIMINATION SUIT PURSUANT TO THE NYC HUMAN RIGHTS LAW DETERMINED (CT APP))/HUMAN RIGHTS LAW (NYC) (PUNITIVE DAMAGES, STANDARD FOR PUNITIVE DAMAGES IN EMPLOYMENT DISCRIMINATION SUIT PURSUANT TO THE NYC HUMAN RIGHTS LAW DETERMINED (CT APP))/PUNITIVE DAMAGES (EMPLOYMENT DISCRIMINATION, NYC HUMAN RIGHTS LAW, STANDARD FOR PUNITIVE DAMAGES IN EMPLOYMENT DISCRIMINATION SUIT PURSUANT TO THE NYC HUMAN RIGHTS LAW DETERMINED (CT APP))/DISCRIMINATION (EMPLOYMENT LAW, NYC HUMAN RIGHTS LAW, STANDARD FOR PUNITIVE DAMAGES IN EMPLOYMENT DISCRIMINATION SUIT PURSUANT TO THE NYC HUMAN RIGHTS LAW DETERMINED (CT APP))/GENDER DISCRIMINATION  (EMPLOYMENT LAW, NYC HUMAN RIGHTS LAW, STANDARD FOR PUNITIVE DAMAGES IN EMPLOYMENT DISCRIMINATION SUIT PURSUANT TO THE NYC HUMAN RIGHTS LAW DETERMINED (CT APP))/PREGNANCY DISCRIMINATION  (EMPLOYMENT LAW, NYC HUMAN RIGHTS LAW, STANDARD FOR PUNITIVE DAMAGES IN EMPLOYMENT DISCRIMINATION SUIT PURSUANT TO THE NYC HUMAN RIGHTS LAW DETERMINED (CT APP))

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NO CORAM NOBIS RELIEF FOR DEFENDANT WHERE DEFENSE COUNSEL FILED A NOTICE OF APPEAL BUT ALLEGEDLY DID NOT ADVISE DEFENDANT OF THE AVAILABILITY OF POOR PERSON RELIEF AND DID NOT TAKE ANY ACTION ON A MOTION TO DISMISS THE APPEAL, DEFENDANT DID NOT MEET HIS BURDEN OF PROOF ON THE INEFFECTIVE ASSISTANCE CLAIM (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, over two dissenting opinions, determined that defendant was not entitled to coram nobis relief based upon ineffective assistance for failure to perfect an appeal:

 

In People v Syville (15 NY3d 391 [2010]), we held that, in rare circumstances, a defendant may seek coram nobis relief despite failing to move for an extension of time to file a notice of appeal within the one-year grace period provided by CPL 460.30. Specifically, we concluded that coram nobis may be available for a defendant who demonstrated that he or she timely requested that trial counsel file a notice of appeal, the attorney failed to comply, and the omission could not reasonably have been discovered within the one-year time limit … . Defendant now asks us to expand Syville to situations in which retained trial counsel filed a timely notice of appeal but allegedly failed to advise the defendant of his or her right to poor person relief, or to take any action when served with a motion to dismiss the appeal years after the notice of appeal was filed. Because defendant has not met his burden of proving that counsel was ineffective, we decline to expand Syville under the circumstances presented here. * * *

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Given this … Court’s holdings … that a defendant is not constitutionally entitled to the assistance of counsel in seeking poor person relief as long as he or she is given written notice that is similar to the one defendant received here — defendant has a heavy burden to demonstrate entitlement to a writ of error coram nobis premised on ineffective assistance of counsel for failing to assist in procuring poor person relief. … He failed to meet that burden here, both in terms of his specific claim that counsel did not advise him of his right to seek poor person relief in connection with his appeal and the more general claim, advanced by both Judge Rivera and Judge Wilson in dissent, that counsel did not consult with him regarding an appeal.

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With respect to the other prong of defendant’s coram nobis motion (based on failure to respond to the dismissal motion four years after the notice of appeal was filed) defendant and Judge Rivera, in her dissent, essentially seek a rule that trial counsel has a constitutional responsibility in connection with an appeal for an indefinite period of time extending for years after the notice of appeal is filed. Neither defendant nor that dissent cite any legal support for the imposition of such a rule. Moreover, the cases … do not support imposing either … an open-ended obligation on behalf of trial counsel or a rule that counsel is ineffective for failing to assist a defendant in obtaining poor person relief. People v Arjune, 2017 NY Slip Op 08159, CtApp 11-20-17

 

CRIMINAL LAW (NO CORAM NOBIS RELIEF FOR DEFENDANT WHERE DEFENSE COUNSEL FILED A NOTICE OF APPEAL BUT ALLEGEDLY DID NOT ADVISE DEFENDANT OF THE AVAILABILITY OF POOR PERSON RELIEF AND DID NOT TAKE ANY ACTION ON A MOTION TO DISMISS THE APPEAL, DEFENDANT DID NOT MEET HIS BURDEN OF PROOF ON THE INEFFECTIVE ASSISTANCE CLAIM (CT APP))/ATTORNEYS (CRIMINAL LAW, NO CORAM NOBIS RELIEF FOR DEFENDANT WHERE DEFENSE COUNSEL FILED A NOTICE OF APPEAL BUT ALLEGEDLY DID NOT ADVISE DEFENDANT OF THE AVAILABILITY OF POOR PERSON RELIEF AND DID NOT TAKE ANY ACTION ON A MOTION TO DISMISS THE APPEAL, DEFENDANT DID NOT MEET HIS BURDEN OF PROOF ON THE INEFFECTIVE ASSISTANCE CLAIM (CT APP))/APPEALS (CRIMINAL LAW, (NO CORAM NOBIS RELIEF FOR DEFENDANT WHERE DEFENSE COUNSEL FILED A NOTICE OF APPEAL BUT ALLEGEDLY DID NOT ADVISE DEFENDANT OF THE AVAILABILITY OF POOR PERSON RELIEF AND DID NOT TAKE ANY ACTION ON A MOTION TO DISMISS THE APPEAL, DEFENDANT DID NOT MEET HIS BURDEN OF PROOF ON THE INEFFECTIVE ASSISTANCE CLAIM (CT APP))/CORAM NOBIS  (NO CORAM NOBIS RELIEF FOR DEFENDANT WHERE DEFENSE COUNSEL FILED A NOTICE OF APPEAL BUT ALLEGEDLY DID NOT ADVISE DEFENDANT OF THE AVAILABILITY OF POOR PERSON RELIEF AND DID NOT TAKE ANY ACTION ON A MOTION TO DISMISS THE APPEAL, DEFENDANT DID NOT MEET HIS BURDEN OF PROOF ON THE INEFFECTIVE ASSISTANCE CLAIM (CT APP))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, (NO CORAM NOBIS RELIEF FOR DEFENDANT WHERE DEFENSE COUNSEL FILED A NOTICE OF APPEAL BUT ALLEGEDLY DID NOT ADVISE DEFENDANT OF THE AVAILABILITY OF POOR PERSON RELIEF AND DID NOT TAKE ANY ACTION ON A MOTION TO DISMISS THE APPEAL, DEFENDANT DID NOT MEET HIS BURDEN OF PROOF ON THE INEFFECTIVE ASSISTANCE CLAIM (CT APP))

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NEW YORK CITY CHARTER PROVISION REQUIRES ONLY ONE ATTEMPT AT PERSONAL SERVICE OF NOTICES OF BUILDING CODE VIOLATIONS BEFORE TURNING TO THE NAIL AND MAIL ALTERNATIVE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined that he New York City charter provisions governing service of a Notice of Violation (NOV) of the building code require only one unsuccessful attempt at personal service before the affix and mail provisions kick in. The CPLR nail and mail provisions (which require due diligence in the attempts at personal service) do not apply:

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The question presented is whether, prior to use of the affix and mail procedure, the City Charter requires more than a single attempt to personally serve the NOV at the premises. * * *

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… [T]he plain language of the relevant statute speaks in the singular — “[s]uch notice may only be affixed . . . where a reasonable attempt has been made” at personal delivery — indicating that only one attempt is required … . * * *

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Moreover, the alternate service procedure authorized by the statute — a single attempt to personally deliver the NOV, coupled with affixing the NOV to the property and mailing copies to the owner at the premises and other addresses on file with related City agencies — is reasonably calculated to inform owners of violations relating to their properties. Matter of Mestecky v City of New York, 2017 NY Slip Op 08162, CtApp 11-20-17

 

MUNICIPAL LAW (NYC) (NEW YORK CITY CHARTER PROVISION REQUIRES ONLY ONE ATTEMPT AT PERSONAL SERVICE OF NOTICES OF BUILDING CODE VIOLATIONS BEFORE TURNING TO THE NAIL AND MAIL ALTERNATIVE (CT APP))/REAL PROPERTY LAW (NYC, BUILDING CODE VIOLATIONS, NEW YORK CITY CHARTER PROVISION REQUIRES ONLY ONE ATTEMPT AT PERSONAL SERVICE OF NOTICES OF BUILDING CODE VIOLATIONS BEFORE TURNING TO THE NAIL AND MAIL ALTERNATIVE (CT APP))/CIVIL PROCEDURE (NYC, BUILDING CODE VIOLATIONS, NEW YORK CITY CHARTER PROVISION REQUIRES ONLY ONE ATTEMPT AT PERSONAL SERVICE OF NOTICES OF BUILDING CODE VIOLATIONS BEFORE TURNING TO THE NAIL AND MAIL ALTERNATIVE (CT APP))/NOTICES OF VIOLATION (NYC BUILDING CODE, NEW YORK CITY CHARTER PROVISION REQUIRES ONLY ONE ATTEMPT AT PERSONAL SERVICE OF NOTICES OF BUILDING CODE VIOLATIONS BEFORE TURNING TO THE NAIL AND MAIL ALTERNATIVE (CT APP))/NAIL AND MAIL (NYC BUILDING CODE VIOLATIONS, NEW YORK CITY CHARTER PROVISION REQUIRES ONLY ONE ATTEMPT AT PERSONAL SERVICE OF NOTICES OF BUILDING CODE VIOLATIONS BEFORE TURNING TO THE NAIL AND MAIL ALTERNATIVE (CT APP))/NOTICE OF VIOLATION (NOV)  (NYC BUILDING CODE VIOLATIONS, NEW YORK CITY CHARTER PROVISION REQUIRES ONLY ONE ATTEMPT AT PERSONAL SERVICE OF NOTICES OF BUILDING CODE VIOLATIONS BEFORE TURNING TO THE NAIL AND MAIL ALTERNATIVE (CT APP))

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