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FAMILY COURT ACT SECTION 1028 REQUIRES THAT THE COURT EXPEDITE A HEARING ON MOTHER’S PETITION TO HAVE HER CHILDREN RETURNED TO HER; HERE THE HEARING WAS STARTED WITHIN THREE DAYS OF THE APPLICATION AS REQUIRED BUT WAS THEREAFTER ADJOURNED SEVERAL TIMES OVER A PERIOD OF MONTHS, A VIOLATION OF THE STATUTE (FIRST DEPT).

The First Department, ordering Family Court to expedite a Family Court Act Section 1028 hearing on mother’s application to have her children returned to her, determined the adjournments of the continuation of the hearing over a period of months violated section 1028:

Family Court Act § 1028 “provides for an expedited hearing to determine whether a child who has been temporarily removed from a parent’s care and custody should be reunited with that parent pending the ultimate determination of the child protective proceeding” … . Upon an application of a parent whose child has been temporarily removed, “[e]xcept for good cause shown, such hearing shall be held within three court days of the application and shall not be adjourned” … .

… [A]lthough the 1028 hearing commenced within three court days of the mother’s application, it did not proceed expeditiously. It is currently calendared with continued hearing dates through late October 2024, at which time the infant subject children will have spent more than half their lives in foster care. … The plain language of the statute requires expediency. Family Court Act § 1028 is distinguishable from other sections of article 10 wherein those sections call for hearings to be conducted within the Family Court’s discretion … . No such discretion is provided by the plain language of Family Court Act § 1028.

Under the specific time constraints detailed by the plain language of Family Court Act § 1028 and given the potential and persistent harms of family separation, the mother is entitled to prompt judicial review of the children’s removal “measured in hours and days, not weeks and months” … . Conducting this 1028 hearing over a period of 30 minutes of hearing time scheduled in March, four hours scheduled in April, three hours in May, and four hours in June cannot be deemed prompt or expeditious judicial review. Matter of Emmanuel C.F. (Patrice M. D. F.), 2024 NY Slip Op 04482, First Dept 9-19-24

Practice Point: Family Court does not have the discretion to keep adjourning a Family Court Act 1028 hearing on mother’s petition to have her children returned to her. Mother is entitled, by the terms of the statute, to an expedited hearing.

 

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DEFENDANT’S BEHAVIOR BEFORE AND DURING THE TRAFFIC STOP DID NOT CREATE “REASONABLE SUSPICION” THE DEFENDANT WAS ARMED; THE FRISK AND SEIZURE OF SMALL PACKETS OF PCP FROM DEFENDANT’S SOCK WAS NOT JUSTIFIED; THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Rodriguez, over a concurrence, reversing Supreme Court, determined the police, during a traffic stop, did not have “reasonable suspicion the suspect was armed” at the time defendant was frisked and small packets of PCP were seized from his sock, requiring suppression of the drugs. The concurrence argued that the evidence the officers smelled PCP provided “reasonable suspicion” sufficient to warrant a search, but, because Supreme Court did not credit that testimony, the appellate court could not consider it (the lower court’s ruling on that issue was not adverse to the defendant). The facts surrounding the traffic stop and frisk are too detailed to fully summarize here:

The issue presented is … “whether the circumstances in this case support a reasonable suspicion that defendant was armed and dangerous” … , thereby justifying the level three frisk. More precisely, the issue is whether Mr. Torres’s failure to produce his license and registration; his presentation as “nervous” and “fidgety”; the dark lighting under the Manhattan Bridge; the smell of PCP; and Officer McDevit’s observation that the van was shaking as he approached supports, in the totality, “a reasonable view that [defendant] was armed” … .

Ultimately, the circumstances here supported, at most, a level two intrusion to gain explanatory information but not an escalation to level three. Critically, Officer Galarza testified that when he asked Mr. Torres for his license and registration, Mr. Torres was “not able to produce [them].” It was “[a]t this point” that Officer Galarza had Mr. Torres “step out of the vehicle [] for [Officer Galarza’s] safety after [Officer Galarza] felt like [Mr. Torres] wasn’t compliant enough” with the request. * * *

… [A]lthough Mr. Torres’s failure to respond to Officer Galarza’s request for his license and registration “clearly served to heightened the suspicions of the officer” … and “represented a basis for further inquiry,” “it did not provide a predicate for reasonable suspicion to believe that [defendant] . . . [was] armed, thereby justifying a frisk” … . People v Torres, 2024 NY Slip Op 04442, First Dept 9-12-24

Practice Point: Here the defendant’s behavior before and during the traffic stop did not raise “reasonable suspicion” that he was armed. Therefore the frisk and seizure of drugs from his sock was not justified.

Practice Point: The concurrence argued the evidence that the officers smelled drugs (PCP) warranted a search. However, because the suppression court did not credit that evidence, the appellate court could not consider it.

 

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A DEFENDANT WHO HAS WAIVED INDICTMENT CANNOT PLEAD GUILTY TO A SUPERIOR COURT INFORMATION (SCI) WHICH INCLUDES AN OFFENSE GREATER THAN ANY CHARGED IN THE CORRESPONDING FELONY COMPLAINT (FIRST DEPT).

The First Department, reversing defendant’s conviction by guilty plea to a superior court information (SCI), over a dissent, determined an SCI cannot include an offense greater than any offense charged in the felony complaint. Here the SCI “charged [defendant] with a higher level offense than any contained in the felony complaint, that is, robbery in the third degree is a class D felony, whereas grand larceny in the fourth degree, the highest offense charged in the felony complaint is an class E felony:”

Neither the Court of Appeals nor this Court has directly addressed the issue now before us: whether an SCI that charges an offense for which a defendant was held for action of a grand jury can also, under CPL 195.20 and consistent with New York Constitution article I, § 6, charge a joinable offense of a higher grade or degree than any contained in the felony complaint. * * *

… [T]he New York Constitution article I, § 6 permits prosecution pursuant to an SCI only for “an offense” for which a defendant has been “held for the action of a grand jury”. Such an “offense” includes “the lesser included offenses as well as a greater offense charged in the felony complaint” … , but does not include a greater offense, not charged in the felony complaint, which has additional aggravating elements … . Permitting inclusion in an SCI of an offense of a higher grade than any charged in the felony complaint “would permit circumvention of” the “constitutional imperative” of prosecution by indictment … . People v Perkins, 2024 NY Slip Op 04361, First Dept 9-5-24

Practice Point: Here, a defendant, who waived indictment, pled to a superior court information (SCI) which included an offense greater than any in the corresponding felony complaint. The inclusion in the SCI of an offense greater than any for which the defendant was held for indictment violates the NYS Constitution.

 

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THE RELATION-BACK DOCTRINE APPLIES EVEN WHERE A NEW ACTION HAS BEEN COMMENCED AND CONSOLIDATED WITH A PRIOR ACTION (FIRST DEPT).

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Rosado, determined the relation-back doctrine applied to the wrongful death action against Dr. Ozcan and reinstated that cause of action. The court noted that the relation-back doctrine applies where, as here, a new action has been commenced and consolidated with a prior action:

Dr. Ozcan does not substantively dispute that the claims in the prior and instant actions arose out of the same conduct or that she is united in interest with Montefiore [Medical Center]. Therefore, the only question to be decided, is whether the third prong of the relation-back doctrine has been established.

Dr. Ozcan, who was named as a defendant in the First Action, should have known that, but for a mistake, the wrongful death claim would have been brought against her as well … .

Application of the relation-back doctrine is proper even where, as here, a new action has been commenced and consolidated with a prior action … . Picchioni v Sabur, 2024 NY Slip Op 04362, First Dept 9–5-24

Practice Point: The relation-back doctrine applies to render an action timely brought even where a new action has been commenced and consolidated with a prior action.

 

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STATE DESIGN DEFECT AND FAILURE TO WARN ACTION IS PREEMPTED BY THE FEDERAL HAZARDOUS MATERIALS TRANSPORTATION ACT (HMTA), CRITERIA EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Rodriguez, determined the state defective-design and failure-to-warn action stemming from an allegedly defective compressed gas cylinder was preempted by the federal Hazardous Materials Transportation Act (HMTA). …”…  [T]he HMTA’s express preemption provision encompasses state law claims ‘about’ ‘the designing, manufacturing, fabricating, inspecting, marking, maintaining, reconditioning, repairing, or testing [of] a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce’ … “:

… Federal preemption is based on the US Constitution’s Supremacy Clause …  …

The issue of federal preemption is a question of law …, since it concerns whether, as a matter of statutory interpretation … , Congress has enacted a law for which a particular state rule is “to the Contrary”  … .

An “inquiry into the scope of a statute’s pre-emptive effect is guided by the rule that ‘the purpose of Congress is the ultimate touchstone’ in every pre-emption case” … .. “If a federal law contains an express pre-emption clause,” as here, “it does not immediately end the inquiry because the question of the substance and scope of Congress’ displacement of state law still remains” …

Whether dealing with “express or implied pre-emption, we begin our analysis ‘with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress'” … . “That assumption applies with particular force when Congress has legislated in a field traditionally occupied by the States” … . “Thus, when the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily ‘accept the reading that disfavors pre-emption'” … .

Notwithstanding the above, “[i]f the statute contains an express pre-emption clause, the task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent” … .

Accordingly, although courts will not hesitate to hold that state common-law claims are preempted by federal legislation, the analysis in each express preemption case must turn on the precise language of the relevant preemption provision … .

… [T]he defense of preemption may be raised at any time  … .Malerba v New York City Tr. Auth., 2024 NY Slip Op 04344, First Dept 8-29-24

Practice Point: Consult this opinion for the analysis of and criteria for preemption of a state action by a federal statute.

 

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STATEMENTS ATTRIBUTED TO DEFENDANT CONSTITUTED NONACTIONABLE OPINION; TO THE EXTENT ANY OF THE STATEMENTS COULD BE REGARDED AS FACT RATHER THAN OPINION, THE STATEMENTS WERE PROTECTED BY QUALIFIED PRIVILEGE; PLAINTIFF DID NOT DEMONSTRATE THE STATEMENTS WERE MADE WITH ACTUAL MALICE (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Singh, determined the statements attributed to defendant New York State Assemblyman Jeffrey Dinowitz constituted nonactionable opinion and plaintiff (Verdi) did not demonstrate Dinowitz acted with actual malice. The facts are far too detailed to summarize here:

Given the history of the hyperbolic and public finger-pointing between the parties, a reasonable reader would conclude that Dinowitz’s statements were opinion and merely “the product of passionate advocacy,” especially considering that he was in the midst of litigation involving accusations of him manipulating student registration to advance a racist agenda … . Although Dinowitz’s status as an assemblyman may lead an average reader to interpret his statements as those of fact known to him through his involvement with the school and the community … , “[e]ven apparent statements of fact may assume the character of statements of opinion, and thus be privileged, when made in . . . circumstances in which an ‘audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole’ ” … . * * *

Even if some of Dinowitz’s statements could be regarded as fact rather than opinion, we agree with the motion court’s finding that Dinowitz’s statements may be entitled to a qualified privilege, as an overcrowded public school is a matter of public concern … . We also agree with the motion court’s determination that the “actual malice” standard should be applied in the evaluation of whether Dinowitz’s conduct went beyond that protected by the qualified privilege … . Verdi v Dinowitz, 2024 NY Slip Op 04287, First Dept 8-22-24

Practice Point: The statements attributed to defendant in this defamation action were nonactionable opinion, criteria explained.​

Practice Point: To the extent any of the statements may be regarded as fact, as opposed to opinion, they were protected by qualified privilege because there was no showing the statements were made with actual malice.

 

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THE DEFAMATION ACTION AGAINST A REPORTER AND A MEDIA COMPANY WAS PROPERLY DISMISSED PURSUANT TO THE ANTI-SLAPP STATUTE; PLAINTIFFS FAILED TO DEMONSTRATE THE SUIT HAD A “SUBSTANTIAL BASIS IN LAW;” CRITERIA EXPLAINED (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Gonzalez, over a two-justice concurrence, determined plaintiffs failed to demonstrate their defamation action against a reporter and a media company had a “substantial basis in law” under the anti-SLAPP law. Therefore the complaint was dismissed pursuant to CPLR 3211 [g] [1] and defendants were entitled to attorney’s fees and costs. The articles published by defendants concerned plaintiff Karl Reeves’ divorce and custody dispute. The facts are too detailed to fairly summarize here:

… [T]he anti-SLAPP law creates an accelerated summary dismissal procedure, which applies when a defendant in a SLAPP suit moves pursuant to CPLR 3211(a)(7) to dismiss the complaint. Upon such a motion, the defendant bears the initial burden of showing that the action or claim is a SLAPP suit (see CPLR 3211[g][1]). Once the defendant makes that showing, the burden shifts to the plaintiff to demonstrate that the claim has a “substantial basis in law” (id.). If the claim is dismissed, the defendant recovers a mandatory award of attorneys’ fees.

This case presents the issue of what constitutes a “substantial basis in law” under the anti-SLAPP law. We hold, based on our reading of CPLR 3211(g) and (h), that “substantial basis” under the anti-SLAPP law means “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … , a phrase drawn from the relevant legislative history. We further find that, because the complaint in this case fails to survive ordinary CPLR 3211(a)(7) analysis, plaintiffs have failed to meet the higher burden under CPLR 3211(g) of showing that their SLAPP suit has a substantial basis in law. Accordingly, defendants — a media entity and a reporter — are entitled to mandatory costs and attorneys’ fees pursuant to Civil Rights Law § 70-a. We remand the case solely for calculation of those costs and fees.  Reeves v Associated Newspapers, Ltd., 2024 NY Slip Op 04286, First Dept 8-22-24

Practice Point: To overcome a motion to dismiss a defamation action under the anti-SLAPP statute, the plaintiff must demonstrate the action has a “substantial basis in law.” This decision fleshes out the meaning of that phrase.

 

FAILURE TO COMPLY WITH THE NOTICE OF DEFAULT REQUIREMENTS IN THE BUILDING-CONSTRUCTION BOND PRECLUDED RECOVERY UNDER THE BOND FOR CONSTRUCTION DELAYS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Friedman, determined plaintiff’s failure to comply with the notice of default requirements in the building-construction bond precluded recovery under the bond for construction delays:

With regard to the “trigger” of the surety’s obligation, paragraph 3 of the A312 bond provides that “the Surety’s obligation under this Bond shall arise after” … the beneficiary of the bond (1) has notified the surety and the principal that it is considering declaring a default and offered to confer with the surety and the principal to discuss how to proceed, (2) has declared a default and formally terminated the principal’s right to complete the contract no earlier than 20 days after the aforementioned notice, and (3) has agreed to pay the balance of the contract price to the surety or to a new contractor chosen by the surety. * * *

​Upon [plaintiff’s] appeal, we affirm on the ground that JDS’s claim for delay damages under the 36-floor bond is barred by [plaintiff’s] failure to have complied, at any time before the bonded work had been completed, with the condition precedent of the notice and termination procedures specified in paragraph 3 of the bond. JDS Dev. LLC v Parkside Constr. Bldrs. Corp., 2024 NY Slip Op 04227, First Dept 8-15-24

Practice Point: Compliance with the notice of default provisions in an A312 building-construction bond is a condition precedent to recovery under the bond for construction delays.​

 

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NYU SUFFICIENTLY ALLEGED AN INJURY-IN-FACT ENTITLING IT TO LITIGATE THE CONSTITUTIONALITY OF A NYC ZONING RESOLUTION PROHIBITING THE CONSTRUCTION OF CLASSROOMS AND DORMITORIES IN THE SPECIAL DISTRICT; THERE WAS A COMPREHENSIVE DISSENT (FIRST DEPT). ​

The First Department, over an extensive dissent, reversing Supreme Court, determined plaintiff New York University (NYU) had demonstrated an “injury in fact” which provided standing to contest the constitutionality of a New York City Zoning Regulation (ZR) prohibiting the construction of classrooms and dormitories:

NYU has sufficiently alleged an injury in fact. As stated by the Court of Appeals … , “[t]he injury-in-fact requirement necessitates a showing that the party has an actual legal stake in the matter being adjudicated and has suffered a cognizable harm that is not tenuous, ephemeral, or conjectural but is sufficiently concrete and particularized to warrant judicial intervention”; while this requirement “is closely aligned with [the] policy not to render advisory opinions,” “standing rules should not be applied in an overly restrictive manner where the result would be to completely shield a particular action from judicial review” … . * * *

NYU … has alleged not just an interference with its ability or abstract interest but with its actual present intentions and desires, a showing of specific plans is not a necessary additional requirement for an injury-in-fact showing. NYU’s claim that it has had a long-standing and continuing interest in expanding educational uses in the Special District whose implementation has been limited by the variance requirement is further evidenced by the fact that NYU previously put one of its Special District properties to educational use after obtaining a variance. There is no valid basis for predicating the injury-in-fact showing on evidence that NYU has expended time, money and other resources developing a particular plan for the renovation or conversion of a particular Special District property to educational uses. Judicial consideration of NYU’s claim seeking a declaration as to the unconstitutionality of the ZR amendment should not require that it first experience the harm it seeks to avoid by challenging the amendment. New York Univ. v City of New York, 2024 NY Slip Op 04183, First Dept 8-7-24

​Practice Point: Consult this decision for an explanation of what constitutes an injury-in-fact providing a party with standing to litigate the constitutionality of a zoning provision.

 

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IN A MED MAL CASE, AN EXPERT AFFIDAVIT WHICH MAKES ASSERTIONS UNSUPPORTED AND BELIED BY THE RECORD AND, FOR THE FIRST TIME, ASSERTS ISSUES NOT ENCOMPASSED BY THE COMPLAINT OR BILL OF PARTICULARS, DOES NOT RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Mendez, determined the plaintiffs’ expert did not raise a question of fact on whether the defendants (the Golden defendants) met the appropriate standard of care in this medical malpractice action:

Opinion evidence must be based on facts in the record. An expert cannot speculate, guess, or reach their conclusion by assuming material facts not supported by the evidence. The opinion must be supported either by facts disclosed by the evidence or by facts known to the expert personally. It is essential that the facts upon which the opinion is based be established, or fairly inferable, from the evidence … .

Here, the Golden defendants’ expert’s affirmation, which is based on information contained in the relevant medical records and deposition testimony, established prima facie their entitlement to summary judgment. In opposition, plaintiffs’ expert affirmations as pertain to the Golden defendants are refuted by the medical records and deposition testimony … , do not specifically controvert the opinion of defendants’ expert … , are conclusory and speculative, and fail to raise a triable issue of fact … .

An expert’s affirmation that sets forth general conclusions, misstatements of evidence, and unsupported assertions, and which fails to address the opinions of defendant’s expert, is insufficient to defeat summary judgment … . As is one which raises for the first time in opposition to summary judgment a new theory of liability that has not been set forth in the bills of particulars or in the complaint … . Plaintiffs’ expert affirmations state for the first time in opposition to summary judgment that the Golden defendants departed from accepted practice when, after learning that decedent’s headache had lasted from two to four days, Dr. Golden failed to refer him to the emergency room for a CT scan. This theory is neither in plaintiffs’ complaints nor bills of particulars; is speculative, conclusory, and contradicted by the record; and should not have been considered by Supreme Court … . Cabrera v Golden, 2024 NY Slip Op 04112, First Dept 7-31-24

Practice Point: Many med mal decisions reject without explanation expert opinion affidavits which are deemed “speculative” or “conclusory.” This opinion provides insight into the meaning of those terms.

 

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