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Death Threats Not Protected Under First Amendment; Hearsay May Be Basis of Administrative Determination

In affirming the arbitrator’s recommendation a teacher should be terminated for making death threats against an arbitrator in a prior disciplinary proceeding, the First Department noted that hearsay can be the basis for an administrative determination and explained the threats were not protected by the First Amendment:

We reject petitioner’s allegations that the instant disciplinary proceeding and the ultimate discipline imposed against him violated the right to free speech under the First Amendment to the United States Constitution. Supreme Court properly deferred to the arbitrator’s finding that petitioner’s statements are exempt from First Amendment protection because they constitute “true threats.” We note that petitioner’s former attorney only disclosed the threats because he believed that petitioner’s increasingly erratic behavior rendered him genuinely dangerous. Under the circumstances, it cannot be argued that petitioner’s speech implicates matters of public concern … . Nor can it be disputed that petitioner’s death threats disrupted the initial arbitration proceeding… . Matter of Smith v New York City Dept. of Educ., 2013 NY Slip Op 05765, 1st Dept 9-3-13

 

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Irreparable Injury to Plaintiffs Not Demonstrated and Balance of Equities Did Not Favor Plaintiffs Who Sought Injunction Prohibiting Landlord from Proceeding with a Water-Damage-Repair Plan Plaintiffs Thought Inadequate

In a full-fledged opinion by Justice Saxe, the First Department affirmed the denial of a preliminary injunction where plaintiffs-tenants sought to prohibit the landlord from going forward with repairs necessitated by water damage. The landlord proposed a repair-plan which involved the installation of insulation in the walls which would reduce the interior space of the 1400 square-foot apartment by about 50 square feet.  The plaintiffs wanted the exterior walls completely removed and replaced.  The First Department applied the standard criteria for injunctive relief and determined plaintiffs did not show irreparable harm and the balance of equities did not favor plaintiffs:

…[A]n alteration to residential quarters may be so minor that even though the tenant may be entitled to some form of compensation, a finding of irreparable harm is not warranted. Cases in which interference was sufficient to justify either injunctive relief or orders preventing the work from proceeding … do not preclude the possibility that interference in other circumstances may be so minimal as to fail to justify injunctive relief. Plaintiff failed to make a clear showing that the possible square footage reduction, a small fraction of the total footprint of the apartment, was more than de minimis. This conclusion, however, does not preclude compensation by other means.

Moreover, the balance of the equities does not weigh in plaintiff’s favor. Although plaintiff proposed an alternative method of performing the work on the exterior, she failed to respond to defendant’s assertion that this method would entail substantial extra expenses that defendant was under a fiduciary duty to avoid imposing on the other cooperative shareholders … . The claimed impact to plaintiff of the planned modifications to her apartment, most of which will be compensable based on plaintiffs’ breach of contract theory, is far outweighed by the expense to the co-op of demolishing and rebuilding exterior walls, especially when those walls have already been repaired and treated for waterproofing. Goldstone v Gracie Terrace Apt Corp, 2013 NY Slip Op 05725, 1st Dept 8-27-13

 

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Causes of Action Based Upon Allegations of Violations of Martin Act Concerning Fraud in the Selling of Securities Allowed to Go Forward— Supreme Court Should Not Have Evaluated Merits on Motion to Dismiss

The First Department determined Supreme Court should not have dismissed certain Martin Act/Executive Law causes of action alleging fraud in the sale of securities brought by the Attorney General against Charles Schwab. The First Department explained that Supreme Court should not have evaluated the merits of the case in determining the motion to dismiss:

The Martin Act causes of action are based on General Business Law § 352-c(1)(a), which, where applicable, prohibits fraud, concealment, suppression or false pretense, and General Business Law § 352-c(1)(c), which prohibits false representations or statements to induce or promote the issuance, purchase or sale of securities within or from the State. It is alleged in the complaint that defendant, Charles Schwab & Co., Inc. (Schwab), a registered securities broker-dealer, engaged in fraudulent and deceptive conduct in the sale of auction rate securities (ARS) to the investing public. The Attorney General asserts that Schwab misrepresented ARS to its customers as safe, liquid investments while concealing the fact that they were complex financial instruments with significant, inherent and increasing liquidity risks. * * *

In dismissing the Martin Act causes of action, the court concluded that the “misrepresentations alleged were true when made and the complaint contains no allegations that ARS were liquid at a time when they were illiquid.” The court based this conclusion on its own finding that there had been no failures in the auctions in the 20 years preceding August 2007. In reaching this conclusion, the court erroneously engaged in an evaluation of the merits of the Martin Act causes of action. On a motion to dismiss for failure to state a cause of action, it is not the function of the court to evaluate the merits of the case… . People v Charles Schwab & Co, Inc, 2013 NY Slip Op 05722, 1st Dept 8-27-13

 

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Level One Request for Information Not Justified by “Drug-Prone” Area or Defendant’s “Flight”—Seized Handgun Should Have Been Suppressed

Over a dissent, the First Department determined the facts did not justify a level one stop of the defendant by the police inside a New York City Housing Authority building and, therefore, the motion to suppress the handgun found in defendant’s pocket should have been granted. The First Department explained that a defendant’s presence in a high-crime or drug-prone alone does not justify a police request for information:

The uniformed police officers entered the building to check on other officers stationed inside. As the officers made their way towards the lobby, they saw defendant descending the stairs. When defendant saw the officers, he froze, jerked back, began to retreat, then stopped and stood on the stairs. Based on defendant’s reaction, and given the drug-prone nature of the building, the officers “suspected [defendant of] trespassing,” and asked him to come down the stairs to “make sure if he lived in the building.”

Defendant initially told the officers that he lived there. However, when asked for identification, he began to stutter, and changed his story to say that he was visiting his girlfriend. Although defendant stated that he had his identification in his pocket, he began moving his hands “all over the place, especially around his chest area,” which the officers interpreted to be threatening and indicative of possession of a weapon. To “take control of the situation” before it could “get out of hand,” an officer grabbed defendant’s left arm and brought it behind defendant’s back, which caused defendant’s open jacket to open up further and reveal a silver pistol in the netted interior coat pocket. One officer removed the pistol from the pocket, and another handcuffed defendant. * * *

Presence in a high-crime or drug-prone location, without more, does not furnish an objective credible reason for the police to approach an individual and request information … . As we have observed, “[T]he reputation of a location, however notorious, does not provide a predicate for subversion of the Fourth Amendment” … .

Nor does an individual’s desire to avoid contact with police—even in a high-crime neighborhood–constitute an objective credible reason for making a level one inquiry… .  People v Johnson, 2013 NY Slip Op 05723, 1st Dept 8-27-13

 

Plaintiff Assumed the Risk of Injury in Martial Arts Class

In reversing Supreme Court, the First Department determined the defendant, which conducted a mixed martial arts class, was entitled to summary judgment, based on the assumption-of-risk doctrine, in an action brought by a participant in the class injured when sparring with another “stockier” student. The First Department explained the relevant legal principles:

It is well established that the doctrine of assumption of risk generally applies where the plaintiff is injured while voluntarily participating in a sport or recreational activity, and the injury causing event is a “known, apparent or reasonably foreseeable consequence of the participation” … . The participant engaging in a sport or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . Further, the assumption of risk doctrine considers the appreciation of risk measured “against the background of the skill and experience of the particular plaintiff” … . Tadmor v New York Jiu Jitsu Inc, 2013 NY Slip Op 05721, 1st Dept 8-27-13

 

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Writ of Prohibition Granted to Prevent Trial Judge from Precluding Testimony of Complainant—Complainant Would Not Release His Psychiatric Records

The First Department granted a writ of prohibition to prevent a trial judge from precluding the testimony of the complainant in a robbery case. The judge had precluded the testimony after the complainant refused to sign a HIPAA form to release his psychiatric records.  The complainant had acknowledged that he received psychiatric treatment and that he had auditory and visual hallucinations which were controlled by medication.  The First Department wrote:

An article 78 proceeding seeking relief in the nature of a writ of prohibition is an extraordinary remedy and is available to prevent a court from exceeding its authorized powers in a proceeding over which it has jurisdiction … . “The writ does not lie as a means of seeking a collateral review of an error of law, no matter how egregious that error might be . . . but only where the very jurisdiction and power of the court are in issue” … . Here, the court had no authority to issue this preclusion order since the records were neither discoverable nor Brady material … . It is undisputed that the People did not have the complainant’s records and did not know where he had been treated … . The People had no affirmative duty to ascertain the extent of the complainant’s psychiatric history or obtain his records … . The People advised the defense of the information they had regarding the complainant’s diagnosis and also apprised the defense of the complainant’s statements regarding his hallucinations. Therefore, no claim can be made that the People concealed any information from the court or the defense.  Matter of Johnson v Sackett, 2013 NY Slip Op 05663, 1st Dept 8-20-13

 

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Uniform Act to Secure Attendance of Witnesses from Without the State in Criminal Cases Allowed Colorado Court to Subpoena a Reporter for Purposes of Testifying About Her Confidential Sources in a Matter Related to the Aurora Movie-Theater Shootings

In a full-fledged opinion by Justice Clark, over a two-justice dissent in an opinion by Justice Saxe, the First Department determined a reporter could be compelled to testify, under Criminal Procedure Law section 640.10, in a Colorado proceeding which sought to identify law enforcement personnel who leaked information to the press.  The relevant facts are laid out in the dissenting opinion.  The petitioner in the case is James Holmes, the accused shooter in the Aurora, Colorado, movie theater massacre. The respondent is a reporter who interviewed two law-enforcement persons about the contents of a package allegedly sent by James Holmes to his treating psychiatrist.  A Colorado court issued a subpoena to the reporter.  Supreme Court enforced the subpoena under the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (CPL 640.10).  Because the reporter has already appeared in Colorado, the controversy is moot.  But the First Department determined the exception to the mootness doctrine should be applied (important issue likely to recur, etc.). The reporter’s testimony about her confidential sources is protected in New York under Civil Rights Law section 79-h (b). But Colorado’s privilege statute is much weaker. The majority determined the privilege issue was irrelevant to the enforcement of the subpoena.  The dissent argued that the reporter would suffer “undue hardship” within the meaning of the statute if she were forced to reveal her confidential sources (because her livelihood depended on witness-confidentiality).  The majority wrote:

Petitioner furnished the court with a certificate issued, pursuant to the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (CPL 640.10), by the Araphoe County District Court Judge, and demonstrated that respondent’s testimony was “material and necessary” …, and that she would not suffer undue hardship because petitioner would pay the costs of her travel and accommodations … . …

The narrow issue before the Supreme Court was whether respondent should be compelled to testify, and privilege and admissibility are irrelevant for this determination … . Respondent is entitled to assert whatever privileges she deems appropriate before the Colorado District Court. Compelling respondent to testify is distinguishable from compelling her to divulge the identity of her sources.  Matter of Holmes v Winter, 2013 NY Slip Op 05666, First Dept 8-20-13

 

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Constructive Condition Precedent Properly Fashioned by Court

In a full-fledged opinion by Justice Friedman, the First Department agreed with Supreme Court’s fashioning of a constructive condition precedent for the collection of additional rent under a lease. The First Department quoted the controlling law from the Court of Appeals:

“A condition precedent is an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises’ … . Most conditions precedent describe acts or events which must occur before a party is obliged to perform a promise made pursuant to an existing contract, a situation to be distinguished conceptually from a condition precedent to the formation or existence of the contract itself . . . .

“Conditions can be expressed or implied. Express conditions are those agreed to and imposed by the parties themselves. Implied or constructive conditions are those imposed by law to do justice’ … . Express conditions must be literally performed, whereas constructive conditions, which ordinarily arise from language of promise, are subject to the precept that substantial compliance is sufficient. The importance of the distinction has been explained by Professor Williston:

Since an express condition . . . depends for its validity on the manifested intention of the parties, it has the same sanctity as the promise itself. Though the court may regret the harshness of such a condition, as it may regret the harshness of a promise, it must, nevertheless, generally enforce the will of the parties unless to do so will violate public policy. Where, however, the law itself has imposed the condition, in absence of or irrespective of the manifested intention of the parties, it can deal with its creation as it pleases, shaping the boundaries of the constructive condition in such a way as to do justice and avoid hardship’. (5 Williston, Contracts § 669, at 154 [3d ed].)” Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co. (86 NY2d 685, 690-691 [1995]).  Mount Sinai Hosp v 1998 Alexander Karten Annuity Trust, 2013 NY Slip Op 05667, 1st Dept 8-20-13

 

Applying New Jersey Law—Removal of Safety Guard from Machine Did Not Destroy the Applicability of Workers’ Compensation as the Exclusive Remedy

The First Department, over a two-justice dissent, reversed Supreme Court and dismissed a complaint alleging that a work-related injury was the result of an “intentional wrong” by the employer and, therefore, workers’ compensation was not the exclusive remedy.  The case required the application of New Jersey’s Workers’ Compensation Act, and the interpretation of the statutory term “intentional wrong” pursuant to New Jersey case law.  The injury to plaintiff’s fingers occurred on a machine from which a safety guard had been removed.  The First Department wrote:

…[I]n the present case there were no prior incidents or injuries caused by this machine; there is no evidence of deliberate deceit or fraudulent conduct on defendant’s part; and there were no OSHA violations issued to defendant prior to this incident. Although plaintiff testified that he requested on a number of occasions that the safety guard be replaced, he and other employees continued to use the machine without incident. Significantly, the accident would not have occurred absent plaintiff’s decision to retrieve a piece of stuck leather with his hand, rather than using a long-handled brush or long-handled screwdriver, which was the normal procedure to clear machine jams over the past 13 years that the machine had been in use. In fact, plaintiff testified at his deposition that he used such a long-handled screwdriver over the years to clear jams in the machine. … Thus, there is an insufficient basis for finding that defendant knew that its conduct in not replacing the safety screens was “substantially certain” to result in plaintiff’s injury …, or that there was a “virtual certainty” of injury … . The probability or knowledge that such injury “could” result, or even that an employer’s action was reckless or grossly negligent, is not enough… . Lebron v SML Veteran Leather, LLC, 2013 NY Slip Op 05664, 1st Dept 8-20-13

 

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Teacher’s Unsatisfactory Performance Evaluation Annulled—No Supporting Documentation

In an Article 78 proceeding, the First Department reversed the Board of Education’s denial of a teacher’s petition to annul an unsatisfactory performance evaluation because there was no longer any documentation substantiating any instances of corporal punishment in the teacher’s file.  Disciplinary letters concerning allegations of corporal punishment had previously been removed from the teacher’s file by stipulation.  The First Department explained the relevant rules as follows:

It is undisputed that Part 2(I) of DOE’s Human Resources Handbook “Rating Pedagogical Staff Members” provides (1) that a teacher’s evaluation must be supported by documentation in his/her personnel file; (2) that documentation removed from a file through grievance procedures is inadmissible in performance reviews; and (3) that documentation not addressed directly to a teacher is inadmissible in performance reviews, unless it is attached to and part of another document appropriately placed in the teacher’s file. Moreover, materials placed in a teacher’s personnel file must include a signature and date line for the teacher, evidencing that she has read the material and understands that it will be placed in the file, as well as a signature and date line for a witness; unsigned documents are inadmissible in evaluation reviews.  Matter of Friedman v Board of Educ of the City Sch Dist of the City of New York, 2013 NY Slip Op 05598, 1st Dept 8-13-13

 

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