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PLAINTIFF MODEL SUFFICIENTLY ALLEGED PHOTOSHOOTS DONE WHEN SHE WAS 16 AND 17 FOR A SUNTANNING-PRODUCT MARKETING CAMPAIGN CONSTITUTED “SEXUAL PERFORMANCES” TRIGGERING THE EXTENDED STATUTE OF LIMITATIONS IN THE CHILD VICTIMS ACT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Higgitt, determined certain causes of action against the modeling agency which represented plaintiff and the seller of suntanning products which used the photos of plaintiff should not have been dismissed as time-barred under the extended statute of limitations in the Child Victims Act [CVA] (CPLR 214-g). The photoshoots took place when plaintiff was 16 and 17. One of the issues was whether the complaint adequately alleged the photoshoots constituted a “sexual performance” with triggered the applicability of the CVA. After a comprehensive discussion too detailed to summarize here, the First Department held the complaint stated causes of action based on the “sexual performance” criteria in Penal Law 263.05:

At the pleading stage, as to both defendants, we find that a reasonable inference to be drawn from plaintiff’s allegations regarding the photographing of her while she was unclothed is that the resulting photographs may have captured plaintiff’s genitalia, thus satisfying the “sexual conduct” component of a Penal Law § 263.05 sexual performance. It is not merely the allegation of nudity that suffices, but the permissible inference that nudity occasioned the exhibition of genitalia, lewdly, in a photographic performance. We need not and do not reach whether plaintiff will ultimately be successful … , and at this stage, in light of the allegations contained in the complaint and the reasonable inferences to be drawn therefrom, we need not confine our analysis of the allegations to photographs that were ultimately used in Cal Tan’s marketing campaign, as submitted on the appeal.  * * *

We … find that a plaintiff’s age at the time of the alleged acts, so long as under 18 years of age, does not prevent application of the CVA to revive claims otherwise meeting CPLR 214-g’s requirements. Thus, plaintiff adequately pleaded that, with respect to her age at the time of the alleged acts, the CVA applies to her. Doe v Wilhelmina Models, Inc., 2024 NY Slip Op 03081, First Dept 6-6-24

Practice Point: Here photoshoots for a suntanning-product marketing campaign were sufficiently alleged to constitute “sexual performances’ triggering the extended statute of limitations in the Child Victims Act.

 

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HERE THE PEOPLE’S FAILURE TO PROVIDE TEN-DAY’S NOTICE THEY WERE SEEKING A HIGHER SORA RISK LEVEL THAN THAT RECOMMENDED BY THE BOARD WARRANTED A REDUCTION FROM LEVEL THREE TO TWO; DEFENSE COUNSEL’S REPLY TO THE LATE NOTICE DID NOT WAIVE THE REQUIREMENT (FIRST DEPT).

The First Department, reducing defendant’s SORA risk level from three to two, determined (1) the defendant was not given the requisite 10-day notice of the prosecutor’s intent to seek a higher risk level than that recommended by the Board, and (2) defense counsel’s reply to the late notice by the prosecutor did not waive the 10-day notice requirement:

We agree with defendant that he was denied due process because the People did not provide written notice of its intent to seek a determination different than that recommended by the Board “at least ten days prior to the determination proceeding” (Correction Law § 168-n[3] …). The People sent defense counsel a letter stating their intent to seek a risk level three adjudication, different from the Board’s recommendation of risk level two, less than 10 days in advance of the hearing. … [T]he People indicated in their letter only that they were seeking additional point assessments and did not apprise counsel that they were also requesting an upward departure … . … [T]he People announced their intention to seek an upward departure for the first time at the court’s invitation during the SORA hearing.

Defendant’s right to timely notice was not waived by his counsel’s letter, in response to the People’s, that counsel was willing to go forward with the hearing if the prosecutor delivered to counsel by the next day the evidence that the People intended to use at the hearing. Nothing in the record indicates that the prosecutor complied with this condition. Moreover, because the People did not announce an intention to seek an upward departure, any waiver would not have embraced that request. People v Tookes, 2024 NY Slip Op 03095, First Dept 6-6-24

Practice Point: The People must provide defendant ten-day’s notice of their intent to seek a higher SORA risk level than that recommended by the Board.

Practice Point: The People should not wait until the SORA hearing to announce they are seeking an upward departure.

 

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THE ORDER IMPLEMENTING THE PLAINTIFFS’ PLAN FOR THE SEALING OF NYPD’S RECORDS OF FAVORABLY TERMINATED CRIMINAL PROCEEDINGS AMOUNTED TO A PERMANENT INJUNCTION WITHOUT A DETERMINATION ON THE MERITS; MATTER REMITTED (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Kern, over a dissenting opinion, determined the order by Supreme Court implementing plaintiffs’ plan for sealing the New York City Police Department’s (NYPD’s) records of criminal prosecutions which are favorably terminated amounted to a permanent injunction issued without a determination on the merits, either by way of a summary judgment motion or a trial:

The New York sealing statutes at issue here, enacted in 1976, require that upon the favorable termination of a criminal proceeding or a noncriminal conviction, unless the government demonstrates to the satisfaction of the court that the interests of justice require otherwise, “arrest information,” including photos, palm and fingerprints of arrestees, and official records and papers relating to an arrest or prosecution, will be “sealed and not made available” to any person or public or private agency, subject to six statutorily enumerated exceptions (Criminal Procedure Law §§ 160.50, 160.55 [Sealing Statutes]). * * *

We find that Supreme Court erred by prematurely issuing an overbroad permanent injunction without first making a final determination on the merits of the claim after a trial or summary judgment motion. Contrary to plaintiffs’ argument, the Implementing Order is a permanent injunction rather than a preliminary injunction. The purpose of a preliminary injunction “is not to determine the ultimate rights of the parties, but to maintain the status quo until there can be a full hearing on the merits” … . Conversely, a permanent injunction is a type of final judgment that is issued on the merits of the claims asserted … . R.C. v City of New York, 2024 NY Slip Op 03017, First Dept 6-4-24

Practice Point: An order which includes no indication it is temporary is a permanent, not a preliminary, injunction which should not issue without a determination on the merits by summary judgment motion or trial.

 

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THE NONPARTY OPERATOR OF AN ANONYMOUS WEBSITE WHICH POSTED ALLEGEDLY DEFAMATORY STATEMENTS ABOUT RESPONDENT BUSINESS WAS ENTITLED TO MAINTAIN HER ANONYMITY PURSUANT TO THE FIRST AMENDMENT; HER MOTION TO QUASH SUBPOENAS AIMED AT REVEALING HER IDENTITY SHOULD HAVE BEEN GRANTED (FISRT DEPT).

The First Department, reversing Supreme Court, determined nonparty BehindMLM, the anonymous operator of a website which posts articles, was entitled to her anonymity. The respondent GSB had obtained a default judgment in Germany in a defamation action against Google (which hosts the website) and GoDaddy where the site’s domain name is registered. The defamation action was based on articles posted by BehindMLM. BehindMLM was never notified of GSB suit. GSB brought the instant action pursuant to CPLR 3102(c) to compel Google and GoDaddy to reveal BehindMLM’s identity and served subpoenas on Google and GoDaddy for the relevant documents.. After learning of the action, BehindMLM moved to quash the subpoenas:

BehindMLM posted four articles stating that various corporate entities were engaged in a “Ponzi scheme,” frauds, and scams. In 2022, one of the companies mentioned in one of those articles, petitioner GSB Gold Standard (GSB), brought two separate actions against Google in a German court … . * * *​

The issue of whether BehindMLM’s statements were defamatory was not actually litigated and determined in that action, since the German orders were issued on default … . BehindMLM was not a party to the German proceedings, was not notified of the proceedings and was not given an opportunity to litigate the matter … . * * *

We hold that when a party seeks an anonymous online speaker’s identifying information, courts must first require the party to take reasonable efforts to provide the speaker with notice and an opportunity to appear in the action or proceeding … . * * *

When a speaker asserts a First Amendment right to anonymous online speech … , a court should consider the First Amendment rights at stake, whether the party seeking disclosure has stated a showing of a prima facie defamation claim, and the balance of the equities … . This Court has stated that “we should protect against the use of subpoenas by corporations and plaintiffs with business interests to enlist the help of ISPs via court orders to silence their online critics, which threatens to stifle the free exchange of ideas” … .  * * *

… [E]ven if GSB had stated a valid claim of defamation per se by alleging that the statements were false and harmed its business … , the broad and conclusory allegations in the verified petition did not sufficiently establish the falsity of BehindMLM’s statements … . Upon our consideration of all relevant factors, including the weak evidentiary showing and BehindMLM’s asserted First Amendment right to speak anonymously on matters of public concern, we conclude that, on the record as now presented, BehindMLM is constitutionally entitled to maintain her anonymity. Matter of GSB Gold Std. Corp. AG v Google LLC, 2024 NY Slip Op 02983, First Dept 5-30-24

​Practice Point: Here the First Department protected the First Amendment rights of the nonparty anonymous operator of a website which published allegedly defamatory articles about respondent. The respondent’s subpoenas for documents which would reveal the nonparty’s identity were quashed.

 

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A LOOSE DOOR HANDLE CAUSED THE GLASS DOOR TO SHATTER; DEFENDANTS PRESENTED INSUFFICIENT EVIDENCE OF WHEN THE DOOR HANDLE WAS LAST INSPECTED AND THEREFORE DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the defendants did not demonstrate the glass door which shattered had been inspected close in time to the incident. Therefore a question of fact remained whether defendants had constructive knowledge of the loose handle which caused the door to shatter when plaintiff attempted to open it:

Although 730-Gen’s urban portfolio manager testified that he inspected the interior vestibule doors following an incident that involved the exterior doors in the weeks prior to plaintiff’s accident, his testimony only provided a vague description of the inspection performed. Importantly, he could not identify exactly when the inspection occurred, and he did not indicate that any steps were taken to examine the door’s metal handle.

The urban portfolio manager further testified that defendants had a daily inspection protocol in place to inspect the vestibule doors. However, he admitted that he had never seen anyone perform a daily inspection and he could not identify when the last inspection occurred prior to plaintiff’s accident. …

730-Gen also asserts that the doors received cursory inspections, in that they were used on a daily basis. Yet, there is no record of these cursory inspections taking place … , or any indication that they involved a reasonable inspection of the door handle … .

… 730-Gen’s reliance on the urban portfolio manager’s inspection, which occurred almost two weeks prior to plaintiff’s accident, failed to establish, prima facie, that inspecting the door handle on a biweekly basis is reasonable, especially in light of the daily inspection protocol defendant contends was in place to ensure the handles were tightly secured … . Doherty v 730 Fifth Upper, LLC, 2024 NY Slip Op 02979, First Dept 5-30-24

Practice Point: Unless the defendant can show the instrumentality which caused plaintiff’s injury was inspected and found safe close in time to the injury, a defendant’s motion for summary judgment will not be granted.

 

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PHYSICAL INCAPACITY CAN BE A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE A NOTICE OF CLAIM, BUT THE PERIOD OF DISABILITY DOES NOT TOLL THE ONE YEAR AND 90 DAY PERIOD FOR FILING A MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion for leave to file a late notice claim against the NYC Transit Authority should not have been granted because the motion was made more than one year and 90 days after the cause of action accrued. Although physical incapacity can be a reasonable excuse for failing to file a notice of claim withing 90 days, it does not toll the period for making a timely motion for leave to file a late notice of claim:

The court erred … in concluding that plaintiff’s hospitalization from the February 12, 2020 accident until April 11, 2020 rendered timely plaintiff’s January 25, 2021 notice of claim upon defendant NYC Transit Authority … . Although physical incapacity may be properly considered as a reasonable excuse under General Municipal Law § 50-e (5) for the failure to timely file a notice of claim … , it is relevant only upon timely motion for leave to file a late notice of claim “made before or after the commencement of the action but not more than one year and 90 days after the cause of action accrued” … . Melgarejo v City of New York, 2024 NY Slip Op 02892, First Dept 5-28-24

Practice Point: A period of physical incapacity may be a reasonable excuse for failing to file a timely notice of claim, but it does not toll the one year and 90 day statute of limitations for filing a motion for leave to file a late notice of claim.

 

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THE “SHEPPARD-MOBLEY” BAR TO A MOTHER’S RECOVERY FOR EMOTIONAL HARM IF HER BABY IS BORN ALIVE DOES NOT APPLY TO A LACK-OF-INFORMED CONSENT, AS OPPOSED TO A MEDICAL MALPRACTICE, CAUSE OF ACTION; HERE MOTHER ALLEGED SHE DID NOT CONSENT TO TWO UNSUCCESSFUL VACUUM EXTRACTION ATTEMPTS WHICH PRECEDED THE C-SECTION; HER BABY DIED EIGHT DAYS AFTER BIRTH (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Rodriguez, over a partial dissent, determined plaintiff’s lack-of-informed-consent cause of action properly survived defendant doctor’s (Grimaldi’s) motion for summary judgment. Plaintiff mother alleged she did not consent to the two unsuccessful vacuum extraction attempts which preceded the C-section delivery of her baby. The baby died eight days after birth. The First Department questioned the continued relevance of Sheppard-Mobley v King, 4 NY3d 627 (2005) which held, in an action for medical malpractice, mother cannot recover for emotional harm if the baby is born alive. The First Department distinguished Sheppard-Mobley on the ground that the instant action alleges a lack of informed consent, not ordinary medical malpractice:

This appeal concerns, among other issues, whether Sheppard-Mobley v King (4 NY3d 627 [2005]) (Sheppard-Mobley) and related cases bar a plaintiff mother’s claim for emotional harm resulting from lack of informed consent for certain prenatal procedures. We hold that they do not.

Sheppard-Mobley held that a mother’s damages for emotional harm could not be recovered on a cause of action for ordinary medical malpractice where the child was born alive and in the absence of independent physical injury to the mother. Accordingly, plaintiff’s claim based on lack of informed consent—a separate theory of recovery that, under the circumstances, implicates different interests than the ordinary medical malpractice claim at issue in Sheppard-Mobley—is distinguishable.

In addition, assuming [for the sake of argument] the rule of Sheppard-Mobley applies to claims for ordinary medical malpractice and lack of informed consent alike, we are of the opinion that the rule should be revisited. * * * Now almost 20 years after Sheppard-Mobley, further consideration is warranted with respect to whether a mother may recover for emotional damages resulting from physical injuries to her fetus or infant during pregnancy, labor, or delivery caused by medical malpractice or lack of informed consent. SanMiguel v Grimaldi, 2024 NY Slip Op 02881, First Dept 5-23-24

Practice Point: Here the First Department held that the bar to mother’s recovery for emotional harm if her baby is born alive does not apply to a lack-of-informed consent, as opposed to a medical malpractice, cause of action.

 

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CITY RETIREES THREATENED WITH ELIMINATION OF THEIR EXISTING HEALTH INSURANCE AND AUTOMATIC ENROLLMENT IN A MEDICARE ADVANTAGE PLAN ENTITLED TO RELIEF UNDER THEIR PROMISSORY ESTOPPEL CAUSE OF ACTION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, determined the doctrine of promissory estoppel justified a permanent injunction prohibiting the city from “eliminating … retirees’ existing health insurance, automatically enrolling them in a new Aetna Medicare Advantage Plan, enforcing a June 30, 2023 deadline for retirees to opt out of the new plan, and implementing any other aspect of the City’s new retiree healthcare policy:”

… [T]he record shows a clear and unambiguous promise, made for more than 50 years, that upon an employee’s retirement, Medicare would provide the first level of hospital and medical insurance benefits and the City’s benefits program would provide the second level to fill in the gaps. * * *

… [T]he record shows detrimental reliance on the promise. * * *

… [P]etitioners have demonstrated injury. Many City retirees stated that their chosen providers and hospitals, like many healthcare providers, do not accept the MAPs [Medicare Advantage Plans]. The City’s plan to automatically enroll petitioners in the Aetna MAP and terminate their current Medigap coverage would result in injury to retirees whose medical providers do not accept the Aetna MAP. * * *

The particular manner in which the parties chose to litigate this action before Supreme Court resulted in a record with significant evidentiary support for petitioners’ position and very little support for respondents’ position. That record and the arguments the parties chose to make on appeal lead to the conclusion that petitioners are entitled to relief under their promissory estoppel cause of action. Matter of Bentkowski v City of New York, 2024 NY Slip Op 02771, First Dept 5-21-24

Practice Point: Here the promissory estoppel doctrine was applied to permanently enjoin the city from eliminating city retirees’ health insurance and automatically enrolling them in a Medicare Advantage Plan.

 

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HERE THERE WAS NO VALID REASON TO DENY DEFENDANT’S REQUEST TO REPRESENT HIMSELF; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined defendant’s request to represent himself should have been granted:

The court deprived defendant of his constitutional right to self-representation when it denied defendant’s motion to proceed pro se despite defendant’s knowing and voluntary waiver of his right to counsel. A defendant may invoke the right to self-representation where “(1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” … . Here, defendant made a timely and unequivocal request to represent himself, and during an extensive inquiry, at which time the court repeatedly warned defendant of the dangers and disadvantages of proceeding pro se, defendant affirmed that he understood the risks and insisted on representing himself at trial … . Defendant’s lack of familiarity with the law was not a proper basis for the denial of his motion … . Further, nothing in the record indicates that defendant’s motion was calculated to undermine or delay the progress of the trial— indeed, the court determined that defendant was not malingering—and defendant’s purported “outbursts” during two prior pretrial video conferences did not suggest an intent to disrupt the proceedings … . People v Ivezic, 2024 NY Slip Op 02785, First Dept 5-21-24

Practice Point: A defendant’s lack of knowledge of the law is not a valid reason for denying defendant’s request to represent himself at trial.

 

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