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SUPREME COURT DISMISSED THE INDICTMENT ON SPEEDY-TRIAL GROUNDS, FINDING THAT THE PEOPLE HAD NOT COMPLIED WITH THEIR DISCOVERY OBLIGATIONS AT THE TIME THE PEOPLE INDICATED THEY WERE READY FOR TRIAL; THE DISMISSAL ORDER WAS NEVER SERVED ON THE PEOPLE SO THE 30-DAY APPEAL PERIOD NEVER STARTED RUNNING RENDERING THE PEOPLE’S APPEAL TIMELY; THE FAILURE TO TURN OVER “DEPARTMENT OF CORRECTIONS AND COMMUNITY SERVICES” DOCUMENTS DID NOT VIOLATE THE PEOPLE’S DISCOVERY OBLIGATIONS BECAUSE THE PEOPLE DID NOT POSSESS THOSE DOCUMENTS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) the People’s appeal was timely because defendant never served the order dismissing the indictment on them so the 30-day appeal period never started running, and (2) the People were not obligated to turn over Department of Corrections and Community Supervision (DOCCS) documents to comply with their discovery obligations because the People did not possess those documents:

The Court of Appeals has “interpreted CPL 460.10 (1) (a) ‘to require prevailing party service’—not just the handing out of an order by the court—’to commence the time for filing a notice of appeal’ ” … . Here, the record establishes that the People received a copy of the original order, but there is “no evidence that [defendant] ever served the order as required by CPL 460.10 (1) (a)” … . Inasmuch as the record fails to establish that defendant ever served the People with a copy of the original order, the People’s 30-day period to appeal never began to run and the People’s appeal is therefore timely … . * * *

… [A]ssuming … that the parole officer’s disciplinary records from DOCCS met the relevancy prong as being related to the subject matter of the case, we conclude that the People established that those records did not meet the possessory prong required to prompt their initial discovery obligation with respect thereto (see CPL 245.20 [1] …). “[F]or the purposes of discovery, DOCCS is not a ‘law enforcement’ agency” and is ” ‘outside of the legal or practical control of local prosecutors’ and, therefore, the People cannot be deemed to be in constructive possession of that which DOCCS possesses” … . People v Walker, 2024 NY Slip Op 05662, Fourth Dept 11-15-24

Practice Point: If the defendant wins a motion to dismiss the indictment, the defendant must serve the People with the dismissal order or the People’s 30-day appeal period does not start running.

Practice Point: The People do not violate their discovery obligations by failing to turn over documents which are in the possession of another agency, here the Department of Corrections and Community Services (DOCCS).

 

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THE COVID-19 TOLLS SUSPENDED THE RUNNING OF THE STATUTE OF LIMITATIONS IN THIS PERSONAL INJURY CASE RENDERING THE ACTION TIMELY COMMENCED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the COVID-19 tolls suspended the running of the statute of limitations in this personal injury case, rendering the action timely commenced:

Pursuant to CPLR 214 (5), a three-year statute of limitations applies to an action to recover damages for personal injury. Plaintiff’s cause of action accrued on June 27, 2019, the date of the accident … , and plaintiff did not commence this action until June 29, 2022. However … plaintiff established that the statute of limitations was tolled. On March 20, 2020, then-Governor Andrew Cuomo issued Executive Order (A. Cuomo) No. 202.8, which tolled “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to . . . the civil practice law and rules” … . Then-Governor Cuomo issued a series of nine subsequent executive orders that extended the tolling period, eventually through November 3, 2020 … . “A toll does not extend the statute of limitations indefinitely but merely suspends the running of the applicable statute of limitations for a finite and, in this instance, readily identifiable time period” … . “[T]he period of the toll is excluded from the calculation of the time in which the plaintiff can commence an action” … . Paul v Lyons, 2024 NY Slip Op 05661, Fourth Dept 11-15-24

Practice Point: Consult this decision for a concise explanation of how the COVID-19 tolls affect the running of a statute of limitations.

 

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DEFENDANT’S BIPOLAR DIAGNOSIS AND A STATEMENT INDICATING HIS FAILURE TO TAKE RESPONSIBILITY FOR THE OFFENSE DID NOT JUSTIFY AN UPWARD DEPARTURE FROM SORA RISK-LEVEL TWO TO THREE; TWO JUSTICE DISSENT (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, determined the People did not demonstrate that an upward departure from SORA risk-level two to three was warranted:

… [W]e conclude that the People failed to prove by clear and convincing evidence that defendant is more likely to reoffend based on his bipolar diagnosis. The only evidence offered by the People at the SORA hearing was the report prepared by defendant’s expert, who opined that “impaired judgment is a common disability in Bipolar Disorder, as is impulsiveness.” The expert further opined that defendant’s “judgment was impaired by his disorder” when he committed the crimes, and that he “acted impulsively because of his then undiagnosed (and inadequately treated) illness.” The fact that defendant’s bipolar condition may have impaired his judgment and decreased his ability to control impulsive sexual behavior when he committed the qualifying offenses does not mean, ipso facto, that he is at a greater risk of reoffending in the future as a result of his bipolar condition. Defendant’s mental illness was undiagnosed and untreated when he committed the qualifying offenses, and there is no evidence in the record indicating a reluctance or inability on defendant’s part to follow treatment recommendations and take prescribed medications now that he has been properly diagnosed.

We further conclude that an upward departure was not warranted based on defendant’s post-offense statement to one of the victims. Although the statement in question may show, as the People asserted, that defendant failed to accept responsibility for his crimes, an offender’s failure to accept responsibility is taken into account under risk factor 12 on the risk assessment instrument. Thus, an upward departure cannot be granted based on defendant’s statement … . People v Cohen, 2024 NY Slip Op 05658, Fourth Dept 11-15-24

Practice Point: Here defendant’s bipolar diagnosis and a statement to the victim indicating his failure to take responsibility for the offense did not justify an upward department from SORA risk-level two to three. The evidence did not demonstrate the bipolar disorder increased the risk of reoffending and the statement was already taken into account under risk factor 12.

 

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THE NEW YORK STATUTE DESIGNATING DEFENDANT A SEXUALLY VIOLENT OFFENDER WOULD BE UNCONSTITUTIONAL AS APPLIED IF THE CALIFORNIA OFFENSE UPON WHICH THE DESIGNATION IS BASED WAS NON-VIOLENT; MATTER REMITTED FOR A RULING WHETHER THE CALIFORNIA OFFENSE WAS VIOLENT OR NON-VIOLENT (FOURTH DEPT).

The Fourth Department, remitting the matter to County Court, over a five-justice concurrence, determined County Court must rule on whether defendant’s California conviction involved a violent or a non-violent sexual offense. If the facts of the case indicate the California offense was non-violent, the New York statute which requires designation of the defendant as a sexually violent offender would be unconstitutional as applied:

Defendant appeals from an order insofar as it designated him a sexually violent offender under the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.). Due to the designation, which is based on a felony conviction in California requiring defendant to register as a sex offender in that state, defendant is subject to lifetime registration as a sex offender in New York even though County Court determined that he is only a level one risk. The designation was made pursuant to Correction Law § 168-a (3) (b) insofar as it defines a sexually violent offense as including a “conviction of a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred.” Although defendant concedes that he qualifies as a sexually violent offender under the foreign registration clause of § 168-a (3) (b), he contends that the provision is unconstitutional on its face and as applied to him under the Due Process Clause of the Fourteenth Amendment to the Federal Constitution (US Const, 14th Amend, § 1), inasmuch as his out-of-state felony conviction was for a nonviolent offense. Defendant further contends that the foreign registration clause violates the Privileges and Immunities Clause of the Federal Constitution … . * * *

If the felony of conviction, by virtue of its statutory elements … , involved sexually violent conduct, then the foreign registration clause of Correction Law § 168-a (3) (b) is not unconstitutional as applied to defendant inasmuch as he committed a violent sex offense even if it does not include all of the essential elements of one of the sexually violent offenses in New York enumerated in Correction Law § 168-a (3) (a). If, however, defendant was convicted of an out-of-state felony that is nonviolent in nature, we would conclude that the statute is unconstitutional as applied to defendant … . People v Grzegorzewski, 2024 NY Slip Op 05657, Fourth Dept 11-15-24

Practice Point: The statute which requires defendant be designated a sexually violent offender based upon an out-of-state conviction is unconstitutional as applied if the out-of-state offense was non-violent.

 

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DEFENSE COUNSEL WAS DEEMED INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR’S REPEATED PREJUDICIAL REMARKS MADE TO PROSPECTIVE JURORS (TO THE EFFECT “I CAN SLEEP AT NIGHT BECAUSE I AM NO LONGER A DEFENSE ATTORNEY”), AND FOR AGREEING TO THE JUDGE’S REQUEST TO HAVE THE TWO SIDES ALTERNATE GOING FIRST IN EXERCISING PEREMPTORY JUROR CHALLENGES (IN VIOLATION OF THE CRIMINAL PROCEDURE LAW) (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, reversed defendant’s conviction on ineffective-assistance grounds. Defense counsel did not object to the prosecutor’s repeated statements to prospective jurors that he can sleep at night because he is a prosecutor and no longer a defense attorney. Defense counsel agreed to alter the statutory peremptory juror-challenge procedure, which requires that the People must exercise their peremptory challenges first. Defense counsel agreed to alternate which side went first:

The first error occurred during voir dire when defense counsel failed to object to patently improper comments from the prosecutor regarding his ability to sleep at night now that he is a prosecutor and no longer a defense attorney. Perhaps it was a legitimate strategy for defense counsel not to object to the first improper comment of that nature given that defense counsel may not have wanted to draw more attention to the prejudicial comment. For the same reason, defense counsel might be excused for not objecting when the prosecutor repeated the comment to the same group of prospective jurors. We can discern no legitimate strategy, however, for defense counsel to remain quiet when the prosecutor made the same comment for the third, fourth and fifth times during voir dire. At some point, defense counsel was obligated to protect defendant from the prejudice arising from the repeated acts of prosecutorial misconduct and, at the very least, request a curative instruction from the court.

Defense counsel also erred in not objecting—and, indeed, consenting—to the court’s unlawful procedure of having the parties alternate which side went first in declaring whether they wished to exercise a peremptory challenge to a particular prospective juror. CPL 270.15 (2) provides that the People “must exercise their peremptory challenges first and may not, after the defendant has exercised [the defendant’s] peremptory challenges, make such a challenge to any remaining prospective juror who is then in the jury box.” After the court stated that its practice was to have parties alternate their exercise of peremptory challenges, defense counsel, evidently unaware of the statute’s mandate, said, “I’ll go first. He can go first. I don’t care.” As a result, on numerous occasions during voir dire defense counsel stated whether or not she was peremptorily challenging a prospective juror before the prosecutor was required to state his position.

Although the court’s violation of CPL 270.15 (2) does not constitute a mode of proceedings error, it was certainly prejudicial to defendant and we can conceive of no legitimate strategy for defense counsel’s acquiescence to the unlawful procedure. Viewing the evidence, the law and the circumstances of this case in totality and as of the time of the representation, “[o]ur review of this record indicates that defendant was not afforded meaningful representation and was therefore deprived of a fair trial” … . People v Stewart, 2024 NY Slip Op 04863, Fourth Dept 10-4-24

Practice Point: Although it is not a mode of proceedings error to alternate which side goes first in exercising peremptory challenges to prospective jurors in violation of the criminal procedure law, here defense counsel’s agreement to the procedure was deemed ineffective assistance of counsel and a new trial was ordered.

 

CRITERIA FOR AN EASEMENT BY NECESSITY EXPLAINED, NOT MET HERE; THE NECESSITY MUST EXIST AT THE TIME THE LANDLOCKED PARCEL WAS SEVERED; PROOF OF A FUTURE INTENT TO USE THE PARCEL FOR PERSONAL PARKING WAS DEEMED INSUFFICIENT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined plaintiff did not satisfy the criteria for an easement by necessity for access to a landlocked parcel:

“[T]he party asserting an easement by necessity bears the burden of establishing by clear and convincing evidence . . . that there was a unity and subsequent separation of title, and . . . that at the time of severance an easement over [the servient estate’s] property was absolutely necessary” … .

… [P]laintiff established that he had common ownership of the subject parcels at the time of severance. We agree with defendant, however, that, “inasmuch as the existence and extent of an easement by necessity is determined based on the circumstances as they existed at the time of severance” … , plaintiff failed to establish by clear and convincing evidence that the use and extent of a right-of-way he now seeks was “absolutely necessary” upon separation of title … . While plaintiff generally averred in his affidavit in support of his motion that he retained his landlocked parcel “for purposes of utilizing [the] space for personal parking needs,” any such statement of future intentions failed to establish the nature and extent of the access over the conveyed property that was “indispensable to the reasonable use for the [retained] property” upon severance of title … . Trusso v Brev519, LLC, 2024 NY Slip Op 04880, Fourth Dept 10-4-24

Practice Point: The “necessity” for an easement by necessity must be demonstrated to have existed at the time the landlocked parcel was severed. Proof of a future intent to use the parcel for personal parking was therefore deemed insufficient to support an easement by necessity.

 

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THE ARBITRATOR’S INTERPRETATION OF THE COLLECTIVE BARGAINING AGREEMENT WAS NOT IRRATIONAL; THE AWARD MUST BE CONFIRMED EVEN WHERE THE COURT DISAGREES WITH THE INTERPRETATION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the arbitrator’s ruling that petitioner firefighters were entitled to paid emergency leave should have been confirmed. In recent weeks, the appellate courts across the state have been emphasizing the finality of an arbitrator’s award, even where the court might have decided the matter differently:

“[J]udicial review of arbitration awards is extremely limited” … . “The court must vacate an arbitration award where the arbitrator exceeds a limitation on his or her power as set forth in the CBA [collective bargaining agreement]” … . The court, however, lacks the authority to “examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one” … .

Here, the arbitrator merely interpreted and applied the provisions of the relevant CBA, as he had the authority to do … . We are powerless to set aside that interpretation even if we disagree with it … . Contrary to respondent’s urging, the arbitrator’s determination was not irrational; nothing in the CBA suggests that a request for emergency leave may not be made prior to the start of a tour of duty, and the arbitrator provided a justification for his determination … . Matter of Local 32, Intl. Assn. of Fire Fighters, A.F.L.-C.I.O.-C.L.C. (City of Utica), 2024 NY Slip Op 04878, Fourth Dept 10-4-24

Practice Point: The appellate courts are making it clear that an arbitrator’s award should not be tampered with by the courts as long as the arbitrator has not exceeded his or her powers.

 

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INFANT PLAINTIFFS ALLEGED MULTIPLE INSTANCES OF SEXUAL MISCONDUCT BY A MALE STUDENT ON THE SCHOOL BUS FROM KINDERGARTEN THROUGH SECOND GRADE; THE FOURTH DEPARTMENT DETERMINED THE DEFENDANT SCHOOL’S EVIDENCE DID NOT CONCLUSIVELY ESTABLISH A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the negligent supervision causes of action against the defendant school, school district, board of education and department of transportation should not have been dismissed. Infant plaintiffs alleged they were subjected to sexual misconduct on a school bus by a male student from kindergarten through second grade. The Fourth Department found that the evidence submitted by the defendants did not demonstrate a lack of notice:

Defendants, as parties moving for summary judgment, had the initial burden of establishing as a matter of law that they lacked actual or constructive notice of “the dangerous conduct which caused injury” … . Here, we conclude that defendants did not meet that burden. In support of their motion, defendants submitted, inter alia, the deposition testimony of the principal of the school at the time of the alleged misconduct. The principal, when asked at his deposition whether he had been aware of any prior “incidents of student sexual assaults” on the bus and whether he had ever had to deal with any student at the school who had been characterized as “sexually violent,” answered both questions in the negative … . That testimony was insufficient to meet defendants’ burden because it failed to address whether the principal knew of incidents within the broader category of sexual misconduct alleged by plaintiffs in their complaints. Plaintiffs alleged that the perpetrator engaged in a wide range of sexual misconduct—some of which was not equivalent to “sexual assault [ ]” and was not “sexually violent.” In short, the principal’s testimony failed to establish that defendants had no actual or constructive notice of any sexual misconduct of the types alleged by plaintiffs … .

Additionally, to the extent that defendants submitted deposition testimony of various other witnesses—including the infant plaintiffs and the bus driver—we conclude that it was insufficient to satisfy defendants’ initial burden with respect to actual or constructive notice. In particular, although the infant plaintiffs and the bus driver testified that they did not report instances of the alleged misconduct to defendants, they were not in a position to know whether there had been prior incidents of sexual misconduct involving the perpetrator and, if so, whether defendants had actual or constructive notice of any of those incidents prior to the sexual misconduct alleged in the complaint … . Their testimony could not establish whether defendants obtained notice by other means … . Porschia C. v Sodus Cent. Sch. Dist., 2024 NY Slip Op 04885, Fourth Dept 10-4-24

Practice Point: Here, on defendant school’s motion for summary judgment in this negligent supervision case, the Fourth Department looked carefully at the school’s evidence of a lack of notice of a student’s sexual misconduct and found the evidence did not address all the possible scenarios which could demonstrate liability and therefore did not support summary judgment.

 

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SUPREME COURT’S VACATION OF THE ARBITRATION AWARD AS “IRRATIONAL” REVERSED, CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the arbitrator’s award should not have been vacated as “irrational.” Petitioner, a registered nurse, did not take her first dose of the COVID vaccine by the deadline imposed by her employer. She was suspended and requested an arbitration in accordance with the collective bargaining agreement (CBA). The arbitrator found that failure to take the vaccine was misconduct and petitioner’s employment was terminated:

A court’s authority to vacate an arbitrator’s award is limited to the grounds set forth in CPLR 7511 (b), which permits vacatur of an award where the arbitrator, as relevant here, “exceed[s] [their] power” … by issuing an ” ‘award [that] violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power’ ” … .

Where … the parties agree to submit their dispute to an arbitrator pursuant to a collective bargaining agreement, “[c]ourts are bound by an arbitrator’s factual findings, interpretation of the contract and judgment concerning remedies. A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one. Indeed, even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice” … . * * *

… [T]he court erred in vacating the award on the ground that it was irrational. ” ‘An award is irrational if there is no proof whatever to justify the award’ ” … . Where, however, “an arbitrator ‘offer[s] even a barely colorable justification for the outcome reached,’ the arbitration award must be upheld” … . Here, inasmuch as it was undisputed that SUNY Upstate directed petitioner to receive the vaccine by a date certain, that it apprised her that her continued employment was dependent upon her compliance, and that petitioner refused to be vaccinated by the required date, the court erred in concluding that the arbitrator’s award was irrational. Matter of Spence (State Univ. of N.Y.), 2024 NY Slip Op 04677, Fourth Dept 9-27-24

Practice Point: If there is “even a barely colorable justification” for an arbitrator’s award, the courts won’t tamper with it. Here a nurse lost her job because she wouldn’t take the COVID vaccine. The COVID vaccine regulation which was the basis for the misconduct charge against petitioner was repealed just before the arbitrator decided the matter, but the repeal was not considered by the arbitrator. Because there was a valid basis for the arbitrator’s award, it could not be vacated as “irrational.”

 

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THE PARTY WHO BROUGHT THE WRONGFUL DEATH ACTION WAS NOT A PERSONAL REPRESENTATIVE OF DECEDENT’S ESTATE AND THEREFORE DID NOT HAVE STANDING; BECAUSE THE PARTY HAD NO RIGHT TO SUE, “SUBSTITUTION” OF THE EXECUTORS FOR THAT PARTY WAS NOT AVAILABLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) plaintiffs’ cross-motion to substitute the executors of decedent’s estate for plaintiffs should not have been granted, and (2) defendants’ motion to dismiss the complaint for lack of standing should have been granted. The plaintiff who purportedly brought the wrongful death action (a “proposed” executor) was not a “personal representative” under the Estates, Powers and Trusts Law (EPTL). Therefore, “substitution” of the executors for the plaintiff was not possible:

… [A]s a “[p]roposed” executor who had not obtained letters to administer decedent’s estate, plaintiff was not a personal representative within the meaning of the Estates, Powers and Trusts Law at the time the action was commenced and thus did not have standing to commence an action on behalf of decedent’s estate … . Thus, we agree with defendants that Supreme Court erred in granting plaintiff’s cross-motion to substitute as plaintiffs the executors of decedent’s estate inasmuch as “[s]ubstitution . . . is not an available mechanism for replacing a party . . . who had no right to sue with one who has such a right” … .

We … agree with defendants that the court erred in denying that part of their motion seeking to dismiss the complaint on the ground that the action was brought by a party without standing … . Cappola v Tennyson Ct., 2024 NY Slip Op 04672, Fourth Dept 9-27-24

Practice Point: Only a “personal representative” of a decedent’s estate has standing to sue on behalf of the decedent  Here the suit was brought by a party who had not obtained letters to administer the estate and therefore did not have standing. “Substitution” of the executors for a party without standing is not possible.

 

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