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PURSUANT TO THE INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT’S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT’S RESIDENCE (FIRST DEPT).

The First Department, in a detailed decision, over a dissent, determined that the illegal search of defendant’s belongings at the hospital did not taint the subsequent search of an area near defendant’s residence (his uncle’s apartment) which turned up a gun. Defendant, although charged with robbery, was convicted only of criminal possession of a weapon. The victim had been robbed by a masked man who fired a gun in the elevator where the robbery took place. Because the police could not find evidence a shot was fired in the elevator they believed the robber may have shot himself. The police found the defendant at a hospital, suffering from a gunshot wound in his leg. Defendant’s belongings were searched at the hospital and items taken in the robbery were seized. The police spoke with the defendant and his girlfriend and eventually searched the apartment where defendant lived with his uncle, with the uncle’s consent. The majority held that the investigation would have continued even if the illegal search at the hospital had not been conducted. The dissent argued the police would have had no reason to continue the investigation without the items found in the illegal search:

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“[W]here the evidence sought to be suppressed is the product of an independent source entirely free and distinct from proscribed police activity, it should be admissible and not subject to a per se rule of exclusion based solely on the unlawful conduct” … . “[T]he independent source rule is applicable . . . [where] there is no causal connection, direct or indirect, proximate or attenuated, between the illegality and the subsequent seizure. In cases where this causal nexus is lacking, the exclusionary rule simply does not apply” … . A key consideration in determining whether this rule applies is whether “the prosecution has somehow exploited or benefitted from its illegal conduct, [whether] there is a connection between the violation of a constitutional right and the derivative evidence” … .

Here, the challenged searches were attenuated from the illegal search of defendant’s clothing bags. When the detective entered the hospital room, his theory of the crime was that it had been committed by a black male who had a gunshot wound to the leg. Defendant fit that description. Thus, we disagree with the dissent’s statement that, even if the search of the clothing bags turned up no evidence, the police “would have had little cause to pursue the investigation, let alone . . . search defendant’s vehicle and home.” To the contrary, regardless of what the detective were to find in defendant’s possession, he was likely to continue investigating defendant as a possible suspect. Such investigation would have included the routine and natural investigatory step of interviewing defendant and his girlfriend, which is what led him to learn about the car and the apartment. Further, none of the items recovered during the illegal search was used to procure defendant’s uncle’s consent to search the apartment, so the police did not engage in “exploitation of [the] illegality” as charged by the defense. People v Hill, 2017 NY Slip Op 0592, First Dept 8-1-17

 

CRIMINAL LAW (EVIDENCE, PURSUANT TO THE INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT’S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT’S RESIDENCE (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, PURSUANT TO THE INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT’S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT’S RESIDENCE (FIRST DEPT))/SEARCH AND SEIZURE (INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT’S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT’S RESIDENCE (FIRST DEPT))/INDEPENDENT SOURCE RULE (CRIMINAL LAW, PURSUANT TO THE INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT’S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT’S RESIDENCE (FIRST DEPT))

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ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT).

The First Department, in a detailed decision describing all the evidence, determined the defendant's attempted murder conviction survived a weight of the evidence analysis, but the admission of documentary evidence was error which required reversal. The victim, Russo, had been shot in the head and could not remember who shot him. Before the grand jury, Russo testified that both the defendant (Bell) and a man named Diaz were in the apartment at the time of the shooting. At trial, however, Russo testified Diaz was not in the apartment. A detective testified Diaz had been interviewed in Florida and provided time sheets on his employer's corporate letterhead indicating he was in Florida at the time of the shooting. Those time sheets were erroneously admitted in evidence without meeting the criteria for the business records exception to the hearsay rule:

… [W]e find that the court committed reversible error in admitting Diaz's time sheets into evidence. The business records of Diaz's employer were admitted without a proper foundation, and the court failed to clearly instruct the jury that the time sheets could not be considered for the truth of their content. The jury was not told that the time sheets could not be relied upon to conclude that Diaz was not in the apartment at the time of the shootings. The business records exception to the hearsay rule is codified in CPLR 4518(a), and it also applies in criminal cases (CPL 60.10) … . For a business record to be admissible, it must be made in the regular course of business, it must be the regular course of business to make the record, and “the record must have been made at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter, assuring that the recollection is fairly accurate and the entries routinely made” … . Business records are customarily offered through a foundation witness, such as the custodian of the records or an employee who is familiar with the record-keeping procedures of the record maker … . …

The People argue that the time sheets were admitted not for the truth of their content, but only to rebut defense counsel's extensive challenges to the adequacy of the police investigation, and that the court's limiting instruction was adequate. The limiting instruction that the court gave was imprecise and confusing. The court only instructed the jury that the time sheets were “being received in evidence as documents which [Detective Hennessey] says reflect what efforts he did and what information he received on a very particular subject matter . . . .” The court did not clearly instruct the jurors that they were not to consider the time sheets in determining whether Diaz was in the apartment at the time of the shootings. This error was not harmless. There was a substantial disputed issue about whether Diaz was the additional person in the apartment, whom [a co-defendant] identified as the shooter. This conclusion was also supported by Russo's grand jury testimony, even though Russo later repudiated it. The time sheets established an alibi for Diaz, that he was in Florida on October 25, 2007. Bell's defense was that he did not shoot Russo, and someone else in the apartment did the shooting. Allowing the time sheets into evidence was not harmless error because there was “a significant probability . . . that the jury would have acquitted the defendant had it not been for the error” … . People v Bell, 2017 NY Slip Op 05919, First Dept 8-1-17

CRIMINAL LAW (EVIDENCE, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, BUSINESS RECORDS, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))/HEARSAY (CRIMINAL LAW, BUSINESS RECORDS, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))/BUSINESS RECORDS (CRIMINAL LAW, HEARSAY, ADMISSION OF BUSINESS RECORDS WITHOUT THE PROPER FOUNDATION REQUIRED REVERSAL OF THE ATTEMPTED MURDER CONVICTION (FIRST DEPT))

THE PEOPLE WERE AWARE OF THEIR WITNESS’S PLANS TO VACATION OUT OF THE COUNTRY, THE WITNESS’S ABSENCE WAS NOT AN EXCEPTIONAL CIRCUMSTANCE JUSTIFYING AN EXCLUSION OF TIME UNDER THE SPEEDY TRIAL STATUTE (FIRST DEPT).

The First Department, reversing the motion court, over a two-justice dissent, determined the defendant's motion to dismiss the indictment because of a violation of the speedy trial statute should have been granted. The People were aware of a key witness's plan to vacation out of the country. Therefore, the witness's unavailability could not be considered an “exceptional circumstance” justifying the exclusion of time under the speedy trial statute:

… [T]he mere fact that a necessary witness plans to go on a vacation does not relieve them of their speedy trial obligation … .

… The People knew that their cooperative witness was planning a vacation to the Dominican Republic, yet they failed to call him or to otherwise secure his presence before he left the country. The prosecutor admitted that although learning of the witness's proposed vacation plans on July 25, 2013, and being specifically asked by the witness to contact him the next day to discuss the trial schedule and his proposed vacation, no one from the District Attorney's office tried to contact the witness until July 30, 2013, at which time they learned he had already left on vacation. Although the witness indicated a willingness to work with the prosecutor on scheduling his vacation and had not yet bought his ticket to the Dominican Republic, the prosecutor never subpoenaed the witness, sought a material witness order, or even communicated with him prior to his departure. People v Ricart, 2017 NY Slip Op 05922, First Dept 8-1-17

CRIMINAL LAW (SPEEDY TRIAL, THE PEOPLE WERE AWARE OF THEIR WITNESS'S PLANS TO VACATION OUT OF THE COUNTRY, THE WITNESS'S ABSENCE WAS NOT AN EXCEPTIONAL CIRCUMSTANCE JUSTIFYING AN EXCLUSION OF TIME UNDER THE SPEEDY TRIAL STATUTE (FIRST DEPT))/SPEEDY TRIAL (THE PEOPLE WERE AWARE OF THEIR WITNESS'S PLANS TO VACATION OUT OF THE COUNTRY, THE WITNESS'S ABSENCE WAS NOT AN EXCEPTIONAL CIRCUMSTANCE JUSTIFYING AN EXCLUSION OF TIME UNDER THE SPEEDY TRIAL STATUTE (FIRST DEPT))

ALTHOUGH DEFENDANT WAS TOLD HE COULD RECEIVE JAIL TIME IF HE VIOLATED THE PLEA AGREEMENT, HE WAS NOT TOLD HE COULD BE SENTENCED TO STATE PRISON, PLEA VACATED (FIRST DEPT).

The First Department vacated defendant's guilty plea because, although the court told the defendant he could receive “jail time” if he violated the plea agreement, the defendant was not informed he could be sentenced to state prison:

The court improperly denied defendant's motion to withdraw his guilty pleas. The record, viewed as a whole, demonstrates that defendant lacked sufficient information about the potential scope of sentencing in the event he violated the plea agreement … . Although the court clearly told defendant that he was pleading guilty to a class D felony, reckless endangerment in the first degree, its repeated statements, over the course of multiple court appearances, that defendant's sentence would involve “jail” time, and its failure to clearly apprise defendant that he could receive a state prison sentence, and the potential maximum term thereof, if he violated the plea agreement, taken together, rendered his pleas unknowing and involuntary … . People v Renvill, 2017 NY Slip Op 05921, First Dept 8-1-17

CRIMINAL LAW (GUILTY PLEA, ALTHOUGH DEFENDANT WAS TOLD HE COULD RECEIVE JAIL TIME IF HE VIOLATED THE PLEA AGREEMENT, HE WAS NOT TOLD HE COULD BE SENTENCED TO STATE PRISON, PLEA VACATED (FIRST DEPT))/GUILTY PLEA, MOTION TO VACATE (ALTHOUGH DEFENDANT WAS TOLD HE COULD RECEIVE JAIL TIME IF HE VIOLATED THE PLEA AGREEMENT, HE WAS NOT TOLD HE COULD BE SENTENCED TO STATE PRISON, PLEA VACATED (FIRST DEPT))/PLEA AGREEMENT (ALTHOUGH DEFENDANT WAS TOLD HE COULD RECEIVE JAIL TIME IF HE VIOLATED THE PLEA AGREEMENT, HE WAS NOT TOLD HE COULD BE SENTENCED TO STATE PRISON, PLEA VACATED (FIRST DEPT))

ALTHOUGH PLAINTIFF’S LANYARD WAS UNHOOKED AT THE TIME HE FELL, THERE WAS A QUESTION OF FACT WHETHER THE SCAFFOLD PROVIDED A PROPER WAY TO TIE OFF THE LANYARD 1ST DEPT.

The First Department determined defendant’s motion for summary judgment on the Labor Law 240 (1) and 241 (6) causes of action was properly denied. Plaintiff (Giordano), who was wearing a harness and double lanyard, fell 30 feet from a scaffold when he stepped on a pipe brace which gave way. Although plaintiff had unhooked the lanyard, there was a question of fact whether the scaffold provided a proper method for tying off the lanyard:

“[T]he fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law § 240(1),” and when “there are questions of fact as to whether the [structure] provided adequate protection,” summary judgment is not warranted … . In this case, plaintiff Paul Giordano fell 30 feet from scaffolding during construction on the Freedom Tower at 1 World Trade Center, when he stepped on a pipe brace that suddenly gave way. Although he was wearing a harness and double lanyard, the record presents issues of fact as to whether the scaffolding itself provided adequate anchoring points at which to tie off, and whether Giordano could have used his double lanyard to remain tied off at all times. Thus, under these circumstances, summary judgment to either party on the Labor Law § 240(1) claim, and the § 241(6) claim premised on a violation of Industrial Code (12 NYCRR) § 23-1.16, is precluded by issues of fact as to whether Giordano was provided with “proper fall protection, namely, an appropriate place to . . . attach his harness” … . … Because there are issues of fact as to whether Labor Law § 240(1) was violated, the issue of whether Giordano was the sole proximate cause of the accident (because he unhooked his lanyard) cannot be determined as a matter of law … . Giordano v Tishman Constr. Corp., 2017 NY Slip Op 05796, 1st Dept 7-25-17

LABOR LAW-CONSTRUCTION LAW (SCAFFOLDS, ALTHOUGH PLAINTIFF’S LANYARD WAS UNHOOKED AT THE TIME HE FELL, THERE WAS A QUESTION OF FACT WHETHER THE SCAFFOLD PROVIDED A PROPER WAY TO TIE OFF THE LANYARD 1ST DEPT)/SCAFFOLDS (LABOR LAW-CONSTRUCTION LAW, LTHOUGH PLAINTIFF’S LANYARD WAS UNHOOKED AT THE TIME HE FELL, THERE WAS A QUESTION OF FACT WHETHER THE SCAFFOLD PROVIDED A PROPER WAY TO TIE OFF THE LANYARD 1ST DEPT)/LANYARDS (LABOR LAW-CONSTRUCTION LAW, ALTHOUGH PLAINTIFF’S LANYARD WAS UNHOOKED AT THE TIME HE FELL, THERE WAS A QUESTION OF FACT WHETHER THE SCAFFOLD PROVIDED A PROPER WAY TO TIE OFF THE LANYARD 1ST DEPT)

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RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT.

The First Department, in a full-fledged opinion by Justice Kahn, over an extensive, two-justice, dissenting opinion, determined a report on the DNA evidence which connected the defendant to the burglary did not violate the Confrontation Clause and was properly admitted. The majority argued that the report contained only raw data that was not part of a law enforcement effort aimed at the defendant because the sources of the DNA which were analyzed were not known to the technicians conducting the procedures. Therefore the raw data was not testimonial evidence (which would violate the Confrontation Clause). The criminologist (Huyck) who testified came to conclusions (testimonial) about the sources of the tested DNA by comparing the (non-testimonial) raw data. The report generated by the criminologist, therefore, was admissible because she testified and was cross-examined. The dissenters argued that someone involved in collecting the raw data should have testified and been cross-examined about the testing procedures (measures taken to avoid contamination, etc.):

Huyck herself conducted an independent review of the raw data derived from the testing of the DNA material derived from both the physical evidence and from defendant’s person, and was not merely “functioning as a conduit for the conclusions of others” … . …[T]he expert witness, “testified that any conclusions or opinions she reached from the raw data . . . were her own” and were not merely conclusions of others with whom she agreed … . Upon her own examination of the machine-generated graphs and raw data in this case, Huyck concluded that the two DNA profiles were a match. Her conclusion, based upon her own “separate, independent and unbiased analysis of the raw data,” was reflected in the … laboratory report bearing her name as analyst as well as in her own testimony at trial … . … Huyck did not base her testimony “solely on the reports of the nontestifying analysts [which were then] admitted into evidence for their truth.” People v Rodriguez, 2017 NY Slip Op 05799, 1st Dept 7-25-17

CRIMINAL LAW (RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/HEARSAY (CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/TESTIMONIAL EVIDENCE (CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/DNA (TESTIMONIAL EVIDENCE, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/CONFRONTATION CLAUSE (TESTIMONIAL HEARSAY, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/DNA (TESTIMONIAL HEARSAY, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)/REPORTS (TESTIMONIAL HEARSAY, CRIMINAL LAW, RAW DATA IN REPORT CONNECTING DEFENDANT TO DNA EVIDENCE WAS NOT TESTIMONIAL IN NATURE, THEREFORE TESTIMONY ABOUT THE COLLECTION METHODS WAS NOT REQUIRED 1ST DEPT)

BECAUSE THE PEOPLE PROVIDED NO INFORMATION ABOUT THE CIRCUMSTANCES OF DEFENDANT’S ARREST, DEFENDANT’S ALLEGATIONS IN THE OMNIBUS MOTION WERE SUFFICIENT TO REQUIRE A PROBABLE CAUSE HEARING 1ST DEPT.

The First Department determined defendant, who had pled guilty, was entitled to a hearing on whether the police had probable cause to arrest him. The defendant alleged he was arrested on October 12 at his home. The discovery provided by the People alleged defendant was arrested the following day at the police station. The People did not respond to defendant’s allegation he was arrested at a different time and place. Because the People did not explain the circumstances of defendant’s arrest, defendant’s allegations in the omnibus motion were sufficient to require a hearing. The appeal was held in abeyance pending the hearing:​

… [D]efendant’s claim that he was arrested without probable cause at his home on October 12, 2012, at which time “[h]e was not acting in an illegal or suspicious manner,” although conclusory, was sufficient to entitle him to a hearing on the legality of his arrest and the admissibility of any evidence derived therefrom. It is undisputed that the arrest, whether it occurred on October 12 or (as the People claim) on October 13, took place “at a time and place remote from the [crime] for which [defendant] was charged” … . The People … asserted that defendant was arrested around midday on October 13, at a police station, after giving statements at the same police station that morning and the previous night. Thus, at a minimum, defendant has raised a factual dispute concerning the time of his arrest. Further, the People provided defendant with no information at all as to how, by their account, he came to be at the police station in the first place, nor did they disclose the basis on which he first came to the attention of law enforcement in this investigation … . People v McUllin, 2017 NY Slip Op 05795, 1st Dept 7-25-17​

CRIMINAL LAW (PROBABLE CAUSE HEARING, BECAUSE THE PEOPLE PROVIDED NO INFORMATION ABOUT THE CIRCUMSTANCES OF DEFENDANT’S ARREST, DEFENDANT’S ALLEGATIONS IN THE OMNIBUS MOTION WERE SUFFICIENT TO REQUIRE A PROBABLE CAUSE HEARING 1ST DEPT)/PROBABLE CAUSE (ARREST, BECAUSE THE PEOPLE PROVIDED NO INFORMATION ABOUT THE CIRCUMSTANCES OF DEFENDANT’S ARREST, DEFENDANT’S ALLEGATIONS IN THE OMNIBUS MOTION WERE SUFFICIENT TO REQUIRE A PROBABLE CAUSE HEARING 1ST DEPT)/SUPPRESSION (PROBABLE CAUSE , BECAUSE THE PEOPLE PROVIDED NO INFORMATION ABOUT THE CIRCUMSTANCES OF DEFENDANT’S ARREST, DEFENDANT’S ALLEGATIONS IN THE OMNIBUS MOTION WERE SUFFICIENT TO REQUIRE A PROBABLE CAUSE HEARING 1ST DEPT)/HEARINGS (CRIMINAL LAW, PROBABLE CAUSE, BECAUSE THE PEOPLE PROVIDED NO INFORMATION ABOUT THE CIRCUMSTANCES OF DEFENDANT’S ARREST, DEFENDANT’S ALLEGATIONS IN THE OMNIBUS MOTION WERE SUFFICIENT TO REQUIRE A PROBABLE CAUSE HEARING 1ST DEPT)

ALTHOUGH THE BOOM TRUCK WAS 700 FEET FROM WHERE IT WAS LOADED WHEN THE BOOM STRUCK AN OVERHEAD SIGN, THE TRUCK WAS AT THE WORK SITE WITHIN THE MEANING OF THE LABOR LAW, ALTHOUGH THE INDUSTRIAL CODE PROVISION ADDRESSED THE POSITION OF THE BOOM BUT NOT THE NATURE OF THE ACCIDENT, THE PROVISION WAS BROADLY WORDED AND RAISED A QUESTION OF FACT ON THE LABOR LAW 241 (6) CAUSE OF ACTION 1ST DEPT.

The First Department, reversing (modifying) Supreme Court, over an extensive dissent, determined defendants should not have been awarded summary judgment on plaintiff’s Labor Law 241 (6) cause of action. Plaintiffs were injured when the extended boom on a boom truck struck an overhead sign on a bridge as the truck was being driven away from where it was loaded. Supreme Court had found the accident did not occur at the work site so the Labor Law was not implicated. The First Department held that the truck, which was 700 feet from where it was loaded when the boom struck the sign, was at the work site within the meaning of the Labor Law. The court further found that an Industrial Code provision which related to the position of the boom, but not to the precise facts of the accident, raised a question of fact sufficient to allow the Labor Law 241 (6) cause of action to proceed:

At this stage, … an issue of fact exists as to whether defendants violated section 23-8.2(d)(3) of the Industrial Code, pertaining to “[m]obile crane travel,” which provides that “[a] mobile crane, with or without load, shall not travel with the boom so high that it may bounce back over the cab”… . … Defendants complain that there was no evidence that the boom bounced back over the cab. However, the regulation is violated when a mobile crane has “the boom so high that it may bounce back over the cab” … . Even assuming defendants are correct, the boom was high enough to strike a gantry sign. We reject the dissent’s argument that the regulation was not implicated because plaintiffs were not injured by the boom bouncing over the cab, but rather, when the boom hit the road sign. ​James v Alpha Painting & Constr. Co., Inc., 2017 NY Slip Op 05692, 1st Dept 7-18-17

LABOR LAW-CONSTRUCTION LAW (ALTHOUGH THE BOOM TRUCK WAS 700 FEET FROM WHERE IT WAS LOADED WHEN THE BOOM STRUCK AN OVERHEAD SIGN, THE TRUCK WAS AT THE WORK SITE WITHIN THE MEANING OF THE LABOR LAW, ALTHOUGH THE INDUSTRIAL CODE PROVISION ADDRESSED THE POSITION OF THE BOOM BUT NOT THE NATURE OF THE ACCIDENT, THE PROVISION WAS BROADLY WORDED AND RAISED A QUESTION OF FACT ON THE LABOR LAW 241 (6) CAUSE OF ACTION 1ST DEPT)

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A CLAUSE IN AN EMPLOYMENT CONTRACT PURPORTING TO WAIVE THE RIGHT TO BRING A CLASS ACTION SUIT AND SUBMIT COLLECTIVE CLAIMS TO ARBITRATION VIOLATED THE NATIONAL LABOR RELATIONS ACT AND IS UNENFORCEABLE 1ST DEPT.

The First Department, modifying Supreme Court, in a full-fledged opinion by Justice Moskowitz, over a two-justice dissenting opinion, determined an arbitration provision in plaintiff insurance agent’s employment contract was unenforceable with respect to collective actions, here a class action concerning wage and hour claims:

… [W]e conclude … that arbitration provisions such as the one in [plaintiff’s] contract, which prohibit class, collective, or representative claims, violate the National Labor Relations Act (NLRA) and thus, that those provisions are unenforceable.

In reaching this conclusion, we agree with the reasoning in Lewis v Epic Sys. Corp. (823 F3d 1147 [7th Cir 2016], cert granted __ US __, 137 S Ct 809 [2017]), the recent case from the United States Court of Appeals for the Seventh Circuit, which addressed the enforceability of arbitration agreements prohibiting collective actions. In Lewis, the plaintiff employee agreed to an arbitration agreement mandating that wage and hour claims could be brought only through]individual arbitration and requiring employees to waive “the right to participate in or receive money or any other relief from any class, collective, or representative proceeding” … . The arbitration agreement also included a clause stating that if the waiver were unenforceable, “any claim brought on a class, collective, or representative action basis must be filed in a court of competent jurisdiction” … .

… The plaintiff [in Lewis] argued that the arbitration clause violated the NLRA because it interfered with employees’ right to engage in concerted activities for mutual aid and protection, and was therefore unenforceable … .

The Seventh Circuit denied the employer’s motion to proceed under the arbitration clause, declining to enforce a clause that precluded employees from “seeking any class, collective, or representative remedies to wage-and-hour disputes” because the clause “violate[d] Sections 7 and 8 of the NLRA” (id. at 1161). According to the Court, section 7 of the NLRA provided that employees have the right to engage in concerted activities, and concerted activities “have long been held to include resort to . . . judicial forums” (id. at 1152) [internal quotation marks omitted]. The Seventh Circuit also found that a lawsuit filed “by a group of employees to achieve more favorable terms or conditions of employment” is considered to constitute “concerted activity” under section 7 of the NLRA (id.) [internal quotation marks omitted). Accordingly, the Court held, contracts such as the one at issue were unenforceable under the NLRA because they “stipulate away employees’ [s]ection 7 rights or otherwise require actions unlawful under the NRLA” (id. at 1155). Gold v New York Life Ins. Co., 2017 NY Slip Op 05695, 1st Dept 7-18-17

CIVIL PROCEDURE (CLASS ACTIONS, EMPLOYMENT LAW, A CLAUSE IN AN EMPLOYMENT CONTRACT PURPORTING TO WAIVE THE RIGHT TO BRING A CLASS ACTION SUIT AND SUBMIT COLLECTIVE CLAIMS TO ARBITRATION VIOLATED THE NATIONAL LABOR RELATIONS ACT AND IS UNENFORCEABLE 1ST DEPT)/CLASS ACTIONS (EMPLOYMENT LAW,  A CLAUSE IN AN EMPLOYMENT CONTRACT PURPORTING TO WAIVE THE RIGHT TO BRING A CLASS ACTION SUIT AND SUBMIT COLLECTIVE CLAIMS TO ARBITRATION VIOLATED THE NATIONAL LABOR RELATIONS ACT AND IS UNENFORCEABLE 1ST DEPT)/EMPLOYMENT LAW (CLASS ACTIONS, ARBITRATION,  A CLAUSE IN AN EMPLOYMENT CONTRACT PURPORTING TO WAIVE THE RIGHT TO BRING A CLASS ACTION SUIT AND SUBMIT COLLECTIVE CLAIMS TO ARBITRATION VIOLATED THE NATIONAL LABOR RELATIONS ACT AND IS UNENFORCEABLE 1ST DEPT)/ARBITRATION (EMPLOYMENT LAW, CLASS ACTIONS,  A CLAUSE IN AN EMPLOYMENT CONTRACT PURPORTING TO WAIVE THE RIGHT TO BRING A CLASS ACTION SUIT AND SUBMIT COLLECTIVE CLAIMS TO ARBITRATION VIOLATED THE NATIONAL LABOR RELATIONS ACT AND IS UNENFORCEABLE 1ST DEPT)/CONTRACT LAW (EMPLOYMENT LAW, ARBITRATION,  A CLAUSE IN AN EMPLOYMENT CONTRACT PURPORTING TO WAIVE THE RIGHT TO BRING A CLASS ACTION SUIT AND SUBMIT COLLECTIVE CLAIMS TO ARBITRATION VIOLATED THE NATIONAL LABOR RELATIONS ACT AND IS UNENFORCEABLE 1ST DEPT)/INSURANCE LAW (EMPLOYMENT LAW, ARBITRATION, A CLAUSE IN AN EMPLOYMENT CONTRACT PURPORTING TO WAIVE THE RIGHT TO BRING A CLASS ACTION SUIT AND SUBMIT COLLECTIVE CLAIMS TO ARBITRATION VIOLATED THE NATIONAL LABOR RELATIONS ACT AND IS UNENFORCEABLE 1ST DEPT)

PLAINTIFF DID NOT DEMONSTRATE FRAUD CAUSE OF ACTION WOULD SUCCEED ON ITS MERITS, WARRANT OF ATTACHMENT SHOULD NOT HAVE BEEN GRANTED 1ST DEPT.

The First Department, reversing Supreme Court, determined the warrant of attachment should not have been granted. Plaintiff did not demonstrate the fraud cause of action would succeed on its merits:

… [S]tating a cause of action does not equate to a probability of success on the merits. In her moving papers, plaintiff submitted no affidavit or written evidence that [defendant] had committed fraud. Rather, she relied solely on the fact that partial summary judgment had been granted against three other defendants. However, ‘[t]o sustain a warrant of attachment against the property of a defendant, the moving papers must establish both a cause of action and a ground of attachment as to that particular defendant” … . Genger v Genger, 2017 NY Slip Op 05687, 1st Dept 7-13-17

DEBTOR-CREDITOR (WARRANT OF ATTACHMENT, PLAINTIFF DID NOT DEMONSTRATE FRAUD CAUSE OF ACTION WOULD SUCCEED ON ITS MERITS, WARRANT OF ATTACHMENT SHOULD NOT HAVE BEEN GRANTED 1ST DEPT)/ATTACHMENT, WARRANT OF, PLAINTIFF DID NOT DEMONSTRATE FRAUD CAUSE OF ACTION WOULD SUCCEED ON ITS MERITS, WARRANT OF ATTACHMENT SHOULD NOT HAVE BEEN GRANTED 1ST DEPT)/FRAUD (DEBTOR-CREDITOR, WARRANT OF ATTACHMENT, PLAINTIFF DID NOT DEMONSTRATE FRAUD CAUSE OF ACTION WOULD SUCCEED ON ITS MERITS, WARRANT OF ATTACHMENT SHOULD NOT HAVE BEEN GRANTED 1ST DEPT)

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