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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined defense counsel was not ineffective for failing to object to evidence the complainant, who alleged she was sexually abused by the defendant many years earlier, disclosed the abuse to friends three years after the abuse ceased and again four years later. Defense counsel’s strategy was to show the complainant was a “troubled teen” and inconsistencies in the statements were part of a “recent fabrication” defense:

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Here, defendant argues that counsel’s failure to object to the testimony regarding the victim’s disclosures must have arisen from his ignorance or misunderstanding of the law on prompt outcry testimony and, thus, cannot be considered a matter of strategy. We disagree. While “it is generally improper to introduce testimony that the witness had previously made prior consistent statements” to bolster the witness’s credibility, the use of prior consistent statements is permitted to demonstrate a prompt outcry, rebut a charge of recent fabrication, or “to assist in ‘explaining the investigative process and completing the narrative of events leading to defendant’s arrest'” … . “‘New York courts have routinely recognized that nonspecific testimony about [a] child-victim’s reports of sexual abuse [does] not constitute improper bolstering [when] offered for the relevant, nonhearsay purpose of explaining the investigative process'”… .

A conclusion that the fact of the victim’s disclosures herein to the school counselor and detective would likely be admissible to “complete the narrative” was “consistent with [a conclusion that] a reasonably competent attorney” could make  … . … [C}ounsel was not ineffective for failure to make a motion that had little chance of success …. Instead of objecting to that testimony, counsel strategically chose to use the evidence to defendant’s advantage by exploring the substance of, and the circumstances surrounding, the disclosure in depth to support the defense of recent fabrication. People v Honghirun, 2017 NY Slip Op 04496, CtApp 6-8-17

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, EVIDENCE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE)/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE)EVIDENCE (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DELAYED DISCLOSURE OF SEXUAL ABUSE, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO EVIDENCE OF THE COMPLAINANT’S DISCLOSURE OF ALLEGED SEXUAL ABUSE UP TO SEVEN YEARS AFTER THE ABUSE CEASED, THE EVIDENCE MAY HAVE BEEN ADMISSIBLE AND DEFENSE COUNSEL USED DISCREPANCIES IN THE DISCLOSURES TO SUPPORT THE DEFENSE)

ALTHOUGH PLAINTIFF AND DEFENDANT ARE SPANISH COMPANIES OPERATING IN SPAIN, DEFENDANT IS SUBJECT TO NEW YORK’S LONG-ARM JURISDICTION.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, reversing the appellate division, determined that, although both plaintiff and defendant are businesses based in Spain, there were sufficient contacts with New York to support long-arm jurisdiction. Defendant’s wine was distributed by a New York company, Kobrand. “Through November 2006, defendant paid commissions to plaintiff in Spain on wine defendant sold to Kobrand. In or around January 2007, defendant stopped paying commissions to plaintiff even as defendant continued to sell wine to Kobrand. Defendant contends that its obligation to pay commissions under the oral agreement expired after one year:”

… [N]ot only was defendant physically present in New York on several occasions, but its activities here resulted in “‘the purposeful creation of a continuing relationship with a New York corporation'”… . Defendant’s contacts with New York establish that defendant purposefully availed itself of “the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws”… . …

* * * … [T]he parties’ oral agreement was not performed “wholly in Spain” … . Rather … both sides engaged in activities in New York in furtherance of their agreement. There is an articulable nexus or substantial relationship between defendant’s New York activities and the parties’ contract, defendant’s alleged breach thereof, and potential damages. Accordingly, we hold that plaintiff’s claim arises from defendant’s transaction of business in New York. …

… [D]efendant has established minimum contacts with New York by visiting the state on multiple occasions to promote its wine with the purpose of finding a United States distributor and thereafter selling wine to a New York-based distributor. … Having done so, defendant could reasonably foresee having to defend a lawsuit in New York. D&R Global Selections, S.L. v Bodega Olegario Falcon Pineiro, 2017 NY Slip Op 04494, CtApp 6-8-17

CIVIL PROCEDURE (LONG-ARM JURISDICTION, ALTHOUGH PLAINTIFF AND DEFENDANT ARE SPANISH COMPANIES, DEFENDANT IS SUBJECT TO NEW YORK’S LONG-ARM JURISDICTION)/LONG-ARM JURISDICTION (ALTHOUGH PLAINTIFF AND DEFENDANT ARE TWO SPANISH COMPANIES, DEFENDANT IS SUBJECT TO NEW YORK’S LONG-ARM JURISDICTION)

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NYC ZONING ORDINANCES CONCERNING ADULT BOOKSTORES AND CLUBS ARE CONSTITUTIONAL AND ENFORCEABLE.

The Court of Appeals, reversing the appellate division, in a full-fledged opinion by Judge Fahey, determined New York City’s zoning ordinances concerning adult bookstores and clubs were constitutional and, therefore, enforceable:

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Viewed in the proper light, the evidence and the factual findings of the lower courts support only one conclusion: that the City met its burden of showing continued focus on sexually explicit activities and materials by the adult bookstores and adult eating and drinking establishments.

The Appellate Division found that all but one of the adult bookstores had peep booths for viewing adult films, with an average of about 17 booths per store. Peep booths, by design, obviously promote sexual activities. The Appellate Division further found that all the bookstores used signage, displays, and layouts to promote sexually focused adult materials and activities. In addition, as the trial court found, many of the adult bookstores sold sex toys, adult novelties, and the like in the nonadult sections of the stores. This evidence showed that most of the adult bookstores predominantly emphasized the promotion of sexual materials and activities. * * *

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As to the adult eating and drinking establishments, the Appellate Division found that, in all the clubs, “topless dancing takes place at all times daily for approximately 16 to 18 hours a day” and also that lap dances, a quintessentially sexual activity, were offered by dancers “in both public and private areas of the club” … . This evidence, without more, adequately supported the conclusion that the topless clubs retained a predominant sexual focus. For the People Theatres of N.Y. Inc. v City of New York, 2017 NY Slip Op 04385, CtApp 6-6-17

 

ZONING (ADULT BOOKSTORES AND CLUBS, NYC ZONING ORDINANCES CONCERNING ADULT BOOKSTORES AND CLUBS ARE CONSTITUTIONAL AND ENFORCEABLE)/ADULT BOOKSTORES AND CLUBS (ZONING, NYC ZONING ORDINANCES CONCERNING ADULT BOOKSTORES AND CLUBS ARE CONSTITUTIONAL AND ENFORCEABLE)/CONSTITUTIONAL LAW (ZONING, ADULT BOOKSTORES AND CLUBS, NYC ZONING ORDINANCES CONCERNING ADULT BOOKSTORES AND CLUBS ARE CONSTITUTIONAL AND ENFORCEABLE)

THE PROPOSED DEVELOPMENT OF THE OLD PARKING LOT FOR SHEA STADIUM, ON PARKLAND, IS SUBJECT TO THE PUBLIC TRUST DOCTRINE AND REQUIRES SPECIFIC ENABLING LEGISLATION, THE LEGISLATION FOR THE CONSTRUCTION OF SHEA STADIUM IS NOT APPLICABLE.

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a dissenting opinion by Judge DiFiore, determined the development of the old Shea Stadium parking lot, which is on parkland (Flushing Meadows Park), was subject to the public trust doctrine, requiring specific legislation. The court held that the existing provisions of the administrative code, which approved and described the construction of Shea Stadium, could not be interpreted to allow the proposed development (Willets West) which includes the construction of a hotel, mall and residential housing:

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The statutory language and legislative history demonstrate that the legislation did not authorize further developments on the tract of parkland but, rather, ensured that the City was authorized to accommodate other public uses of the stadium and appurtenant facilities.

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… [T]he text of the statute and its legislative history flatly refute the proposition that the legislature granted the City the authority to construct a development such as Willets West in Flushing Meadows Park.

We acknowledge that the remediation of Willets Point is a laudable goal. Defendants and various amici dedicate substantial portions of their briefs to the propositions that the Willets West development would immensely benefit the people of New York City, by transforming the area into a new, vibrant community, and that the present plan might be the only means to accomplish that transformation. Those contentions, however, have no place in our consideration of whether the legislature granted authorization for the development of Willets West on land held in the public trust. Of course, the legislature remains free to alienate all or part of the parkland for whatever purposes it sees fit, but it must do so through direct and specific legislation that expressly confers the desired alienation. Matter of Avella v City of New York , 2017 NY Slip Op 04383, CtApp  6-6-17

 

MUNICIPAL LAW (PUBLIC TRUST DOCTRINE, THE PROPOSED DEVELOPMENT OF THE OLD PARKING LOT FOR SHEA STADIUM, ON PARKLAND, IS SUBJECT TO THE PUBLIC TRUST DOCTRINE AND REQUIRES SPECIFIC ENABLING LEGISLATION, THE LEGISLATION FOR THE CONSTRUCTION OF SHEA STADIUM IS NOT APPLICABLE)/PUBLIC TRUST DOCTRINE (PARKLAND DEVELOPMENT, THE PROPOSED DEVELOPMENT OF THE OLD PARKING LOT FOR SHEA STADIUM, ON PARKLAND, IS SUBJECT TO THE PUBLIC TRUST DOCTRINE AND REQUIRES SPECIFIC ENABLING LEGISLATION, THE LEGISLATION FOR THE CONSTRUCTION OF SHEA STADIUM IS NOT APPLICABLE)/PARKS (PUBLIC TRUST DOCTRINE, THE PROPOSED DEVELOPMENT OF THE OLD PARKING LOT FOR SHEA STADIUM, ON PARKLAND, IS SUBJECT TO THE PUBLIC TRUST DOCTRINE AND REQUIRES SPECIFIC ENABLING LEGISLATION, THE LEGISLATION FOR THE CONSTRUCTION OF SHEA STADIUM IS NOT APPLICABLE)

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POLICY LANGUAGE MUST BE INTERPRETED TO MEAN THAT COVERAGE OF ADDITIONAL INSUREDS IS TRIGGERED ONLY WHEN THE INSURED IS NEGLIGENT, NOT MERELY WHEN THE ACTIONS OF THE INSURED HAVE A CAUSAL RELATIONSHIP WITH THE INJURY.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge dissenting opinion authored by Judge Fahey, reversing the appellate division, determined the language of the personal injury insurance policy did not support coverage of the additional insureds. The New York City Transit Authority (NYCTA) had contracted with BSI for construction work on a subway tunnel. BSI took out an insurance policy from Burlington. NYCTA, the Metropolitan Transit Authority (MTA) and New York City were named as additional insureds. An NYCTA employee was injured when a machine operated by BSI struck a live electric cable buried in concrete. The NYCTA had neglected to mark the location of the cable and turn off the power. The question before the court was whether, pursuant to the policy language, the additional insureds were covered when the insured, BSI, was not negligent, or whether the causal relationship between BSI and the accident triggered coverage of the additional insureds:

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It is well established in our law that “but for” causation, or causation in fact, is “[t]he cause without which the event could not have occurred” … . The term refers to a link in the chain leading to an outcome, and in the abstract does no more than state the obvious, that “any given event, including an injury, is always the result of many causes” … . However, not all “but for” causes result in liability and “[m]ost causes can be ignored in tort litigation” … . In contrast, “proximate cause” refers to a “legal cause” to which the Court has assigned liability … . The dissent suggests that “proximate cause” and “but-for cause” may be equivalent concepts (dissenting op at 14), but the law is clear that the two are not synonymous … . As the Court has explained, “‘because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point'”… .

Here, the Burlington policy endorsement states that the injury must be “caused, in whole or in part” by BSI. These words require proximate causation since “but for” causation cannot be partial. An event may not be wholly or partially connected to a result, it either is or it is not connected. Stated differently, although there may be more than one proximate cause, all “but for” causes bear some connection to the outcome even if all do not lead to legal liability. Thus, these words — “in whole or in part” — can only modify “proximate cause” … . Burlington Ins. Co. v NYC Tr. Auth., 2017 NY Slip Op 04384, CtApp 6-6-17

 

INSURANCE LAW (POLICY LANGUAGE MUST BE INTERPRETED TO MEAN THAT COVERAGE OF ADDITIONAL INSUREDS IS TRIGGERED ONLY WHEN THE INSURED IS NEGLIGENT, NOT MERELY WHEN THE ACTIONS OF THE INSURED HAVE A CAUSAL RELATIONSHIP WITH THE INJURY)/NEGLIGENCE (INSURANCE LAW, POLICY LANGUAGE MUST BE INTERPRETED TO MEAN THAT COVERAGE OF ADDITIONAL INSUREDS IS TRIGGERED ONLY WHEN THE INSURED IS NEGLIGENT, NOT MERELY WHEN THE ACTIONS OF THE INSURED HAVE A CAUSAL RELATIONSHIP WITH THE INJURY)

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POLICE LOST A VIDEO WHICH WAS LIKELY TO BE OF MATERIAL IMPORTANCE, FAILURE TO GIVE THE ADVERSE INFERENCE CHARGE TO THE JURY WAS (HARMLESS) ERROR.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two judge dissenting opinion authored by Judge Wilson, determined defendant was entitled to an adverse inference charge with respect to the loss of video of a shooting, but that the failure to so charge the jury was harmless error under the facts. The defendant allegedly fired shots from across the street toward the entrance of a club. The video would have shown the victim and witnesses near the club entrance, but not the shooter:

Once the police collected the video, the People had an obligation to preserve it … .

Under these circumstances — where defendant acted with due diligence by requesting the evidence in discovery and the lost evidence was video footage of the murder defendant was charged with committing — it cannot be said that the evidence was not “reasonably likely to be of material importance” (Handy, 20 NY3d at 665). According to the trial testimony, the camera captured the moment when the victim was shot and the location of the two eyewitnesses at the time of the shooting. There was also testimony that the video contained footage of people going in and out of the club throughout the course of the night, making it at least possible that the video captured the earlier incident involving defendant and the bouncer — a key issue in the sequence of events. Contrary to the determination of the Appellate Division, a video of the shooting and of the eyewitnesses at or around the time of the murder is certainly “relevant to the case” … and is sufficient to satisfy the standard set out in Handy. Moreover, as in Handy, testimony concerning what appeared on the video came in large part from a witness whose own actions “created the need to speculate about its contents” … . Accordingly, the trial court erred in failing to give an adverse inference instruction. People v Viruet, 2017 NY Slip Op 04386, CtApp 6-6-17

 

CRIMINAL LAW (POLICE LOST A VIDEO WHICH WAS LIKELY TO BE OF MATERIAL IMPORTANCE, FAILURE TO GIVE THE ADVERSE INFERENCE CHARGE TO THE JURY WAS (HARMLESS) ERROR)/EVIDENCE (CRIMINAL LAW, POLICE LOST A VIDEO WHICH WAS LIKELY TO BE OF MATERIAL IMPORTANCE, FAILURE TO GIVE THE ADVERSE INFERENCE CHARGE TO THE JURY WAS (HARMLESS) ERROR)/ADVERSE INFERENCE JURY INSTRUCTION (CRIMINAL LAW, POLICE LOST A VIDEO WHICH WAS LIKELY TO BE OF MATERIAL IMPORTANCE, FAILURE TO GIVE THE ADVERSE INFERENCE CHARGE TO THE JURY WAS (HARMLESS) ERROR)

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WHETHER THE POLICE ENTRY INTO DEFENDANT’S HOME WAS JUSTIFIED BY EXIGENT CIRCUMSTANCES IS A MIXED QUESTION OF LAW AND FACT AND IS THEREFORE NOT REVIEWABLE BY THE COURT OF APPEALS.

The Court of Appeals, over an extensive dissent by Judge Rivera, determined whether entry into defendant’s home was justified by exigent circumstances is a mixed question of facts and law that cannot be addressed by the Court of Appeals:

The order of the Appellate Division should be affirmed. The conclusion that the warrantless entry by police into defendant’s home was justified by exigent circumstances is a mixed question of law and fact. Where, as here, there is support in the record for the Appellate Division’s conclusion, the issue is beyond our further review … . “The rule applies ‘where the facts are disputed . . . or where reasonable minds may differ as to the inference to be drawn [from the established facts]'”… . The dissent’s conclusion to the contrary is based on a narrative derived from the suppression hearing record that unduly emphasizes the testimony and resulting inferences that are favorable to defendant. …

RIVERA, J. (dissenting):

As a matter of law, there is no record evidence to support the trial court’s ruling that exigent circumstances justified the warrantless entry into defendant’s home … . Therefore, the Appellate Division should be reversed and a new trial ordered. I dissent. People v Sivertson, 2017 NY Slip Op 04320, CtApp 6-1-17

 

CRIMINAL LAW (APPEALS, COURT OF APPEALS, WHETHER THE POLICE ENTRY INTO DEFENDANT’S home WAS JUSTIFIED BY EXIGENT CIRCUMSTANCES IS A MIXED QUESTION OF LAW AND FACT AND IS THEREFORE NOT REVIEWABLE BY THE THE COURT OF APPEALS)/APPEALS (CRIMINAL LAW, COURT OF APPEALS, WHETHER THE POLICE ENTRY INTO DEFENDANT’S HOME WAS JUSTIFIED BY EXIGENT CIRCUMSTANCES IS A MIXED QUESTION OF LAW AND FACT AND IS THEREFORE NOT REVIEWABLE BY THE THE COURT OF APPEALS)/SUPPRESS, MOTION TO (CRIMINAL LAW, APPEALS, COURT OF APPEALS, WHETHER THE POLICE ENTRY INTO DEFENDANT’S HOME WAS JUSTIFIED BY EXIGENT CIRCUMSTANCES IS A MIXED QUESTION OF LAW AND FACT AND IS THEREFORE NOT REVIEWABLE BY THE THE COURT OF APPEALS)/EXIGENT CIRCUMSTANCES (CRIMINAL LAW, SUPPRESSION, APPEALS, COURT OF APPEALS, WHETHER THE POLICE ENTRY INTO DEFENDANT’S HOME WAS JUSTIFIED BY EXIGENT CIRCUMSTANCES IS A MIXED QUESTION OF LAW AND FACT AND IS THEREFORE NOT REVIEWABLE BY THE THE COURT OF APPEALS)

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DEPARTMENT OF MOTOR VEHICLES REGULATIONS ALLOWING A 25 YEAR LOOK BACK FOR CERTAIN DRIVERS WITH DRIVING WHILE INTOXICATED CONVICTIONS WERE LAWFULLY PROMULGATED AND APPLIED.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, affirming the Appellate Division, determined the regulations promulgated by the Commissioner of the Department of Motor Vehicles (DMV) and the application of those regulations to the petitioners were lawful. Petitioners challenged certain DMV regulations pursuant to which their applications for driver’s licenses, which had been revoked for Driving While Intoxicated offenses, were denied. Applying the Boreali criteria, the court found the Commissioner did not exceed her rule-making powers. The court further found the regulations did not conflict with the relevant statutes and there was a rational basis for the Commissioner’s denial of the license applications:

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The amendments at issue in these appeals (the Regulations) were adopted as emergency regulations in September 2012 and took effect immediately. In relevant part, the Regulations provide that, “[u]pon receipt of a person’s application for relicensing, the Commissioner shall conduct a lifetime review of such person’s driving record” (15 NYCRR 136.5 [b]). The Commissioner “shall deny the application” if “the record review shows that”: (1) the applicant has “five or more alcohol- or drug-related driving convictions or incidents in any combination within his or her lifetime,” (15 NYCRR 136.5 [b] [1]) or (2) within a “25 year look back period,” the applicant “has three or four alcohol- or drug-related driving convictions or incidents in any combination” and “one or more serious driving offense” (15 NYCRR 136.5 [b] [2]). A “serious driving offense” includes: (i) “a fatal accident”; (ii) “a driving-related Penal Law conviction”; (iii) “conviction of two or more violations for which five or more points are assessed” on the applicant’s driving record; or (iv) “20 or more points from any violations” (15 NYCRR 136.5 [a] [2]).

For applicants with “three or four alcohol- or drug-related driving convictions or incidents in any combination within the 25 year look back period but no serious driving offenses within the 25 year look back period,” the Regulations provide that the Commissioner “shall deny the application for at least five years” in addition to the minimum statutory revocation period (15 NYCRR 136.5 [b] [3]). Following the expiration of this five-year waiting period, “the Commissioner may in his or her discretion approve the application, provided that upon such approval, the Commissioner shall impose the A2 restriction on such person’s license for a period of five years and shall require the installation of an ignition interlock device in any motor vehicle owned or operated by such person for such five-year period” (id.). An A2 restricted license is limited to operation to and from specified destinations — for instance, “the holder’s place of employment or education” (see 15 NYCRR 135.9 [b]; 15 NYCRR 3.2 [c] [4]).

The Commissioner is expressly permitted to “deviate from the general policy” set forth in the Regulations “in the exercise of discretionary authority granted” under the VTL (15 NYCRR 136.5 [d]). Specifically, the Commissioner may approve a relicensing application based on a showing of “unusual, extenuating and compelling circumstances,” in which case “the applicant may be issued a license or permit with a problem driver restriction . . . and may be required to install an ignition interlock device” (id.). Matter of Acevedo v New York State Dept. of Motor Vehs., 2017 NY Slip Op 03690, CtApp 5-9-17

 

VEHICLE AND TRAFFIC LAW (DRIVING WHILE INTOXICATED, LICENSE REVOCATION, DEPARTMENT OF MOTOR VEHICLES REGULATIONS ALLOWING A 25 YEAR LOOK BACK FOR CERTAIN DRIVERS WITH DRIVING WHILE INTOXICATED CONVICTIONS WERE LAWFULLY PROMULGATED AND APPLIED)/DRIVING WHILE INTOXICATED (LICENSE REVOCATION, DEPARTMENT OF MOTOR VEHICLES REGULATIONS ALLOWING A 25 YEAR LOOK BACK FOR CERTAIN DRIVERS WITH DRIVING WHILE INTOXICATED CONVICTIONS WERE LAWFULLY PROMULGATED AND APPLIED)/DRIVE’S LICENSES (LICENSE REVOCATION, DEPARTMENT OF MOTOR VEHICLES REGULATIONS ALLOWING A 25 YEAR LOOK BACK FOR CERTAIN DRIVERS WITH DRIVING WHILE INTOXICATED CONVICTIONS WERE LAWFULLY PROMULGATED AND APPLIED)/ADMINISTRATIVE LAW (DEPARTMENT OF MOTOR VEHICLES, DRIVING WHILE INTOXICATED, LICENSE REVOCATION, DEPARTMENT OF MOTOR VEHICLES REGULATIONS ALLOWING A 25 YEAR LOOK BACK FOR CERTAIN DRIVERS WITH DRIVING WHILE INTOXICATED CONVICTIONS WERE LAWFULLY PROMULGATED AND APPLIED)/MOTOR VEHICLES, DEPARTMENT OF  (DRIVING WHILE INTOXICATED, LICENSE REVOCATION, DEPARTMENT OF MOTOR VEHICLES REGULATIONS ALLOWING A 25 YEAR LOOK BACK FOR CERTAIN DRIVERS WITH DRIVING WHILE INTOXICATED CONVICTIONS WERE LAWFULLY PROMULGATED AND APPLIED)/BOREALI CRITERIA (ADMINISTRATIVE LAW, DEPARTMENT OF MOTOR VEHICLES, DRIVING WHILE INTOXICATED, LICENSE REVOCATION, DEPARTMENT OF MOTOR VEHICLES REGULATIONS ALLOWING A 25 YEAR LOOK BACK FOR CERTAIN DRIVERS WITH DRIVING WHILE INTOXICATED CONVICTIONS WERE LAWFULLY PROMULGATED AND APPLIED)

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PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurrence and a two-judge dissent, determined plaintiff state trooper was entitled to attorney’s fees in connection with her successful employment discrimination action against the State under the Equal Access to Justice Act (EAJA):

… [T] he plain language, legislative history and remedial nature of the EAJA together demonstrate that this civil action is eligible for an award of attorneys’ fees. We hold that for cases commenced before the effective date of the 2015 amendment to the Human Rights Law, the EAJA permits the award of attorneys’ fees and costs to a prevailing plaintiff in an action against the State under the Human Rights Law for sex discrimination in employment by a state agency. The plain language of the statute, which is supported by the legislative history, compels the conclusion that “any civil action” encompasses cases brought under the Human Rights Law. It is not for this Court to engraft limitations onto the plain language of the statute. Indeed, “[t]his Court should be very cautious in interpreting statutes based on what it views as a better choice of words when confronted with an explicit choice made by the Legislature” …. . Kimmel v State of New York, 2017 NY Slip Op 03689, CtApp 5-9-17

EMPLOYMENT LAW (PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)/HUMAN RIGHTS LAW (PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)/EQUAL ACCESS TO JUSTICE(PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)/ATTORNEYS (EQUAL ACCESS TO JUSTICE ACT, PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)/SEX DISCRIMINATION (EQUAL ACCESS TO JUSTICE ACT, PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)/CIVIL PROCEDURE LAW (ATTORNEY’S FEES, PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)

RULE THAT RETIRED JUDGES WHO RETURN TO THE BENCH CANNOT RECEIVE BOTH A SALARY AND RETIREMENT BENEFITS IS NEITHER ILLEGAL NOR UNCONSTITUTIONAL.

The Court of Appeals, reversing the Appellate Division, determined the rule that retired judges who return to the bench cannot receive both a salary and retirement benefits was neither illegal nor unconstitutional. Matter of Loehr v Administrative Bd. of the Cts. of the State of New York, 2017 NY Slip Op 03558, CtApp 5-4-17

 

JUDGES (RULE THAT RETIRED JUDGES WHO RETURN TO THE BENCH CANNOT RECEIVE BOTH A SALARY AND RETIREMENT BENEFITS IS NEITHER ILLEGAL NOR UNCONSTITUTIONAL)

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