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POLICE OFFICER’S CAUSES OF ACTION FOR DISABILITY DISCRIMINATION SHOULD HAVE SURVIVED THE MOTION TO DISMISS.

The Fourth Department determined plaintiff police officer had stated causes of action for unlawful discrimination based upon a disability under the Human Rights Law and the federal Rehabilitation Act. Plaintiff was arrested for DWI and entered a rehabilitation program where he was diagnosed as suffering from post-traumatic stress disorder stemming from his work in New York City after the 9-11 attack. Plaintiff was terminated upon completion of the rehabilitation program. The city argued his termination was based on the DWI, but plaintiff alleged other officers, who were not disabled, were not terminated after committing a criminal offense. The Fourth Department noted that when the plaintiff’s and defendant’s arguments are equally supported, plaintiff must prevail in a motion to dismiss:

 

Plaintiff sufficiently stated a cause of action for disability discrimination under the Human Rights Law by alleging that: he has a disability and is therefore a member of a protected class; he is qualified for his position; he suffered an adverse employment action, i.e., termination of his employment; and the termination occurred under circumstances giving rise to an inference of discrimination … . Similarly, plaintiff sufficiently stated a cause of action for discriminatory termination under the Rehabilitation Act by alleging that: “(1) he has a disability; (2) he is otherwise qualified to perform the job; (3) he was terminated solely because of his disability; and (4) the program or activity receives federal funds” … . …

In support of those causes of action, plaintiff alleged that the City did not terminate the employment of two nondisabled employees after they were arrested for criminal misconduct, thus raising an inference that his termination was based upon his disability. The court stated in its decision that plaintiff’s allegations “equally support” the conclusions that those two employees and plaintiff were similarly situated, and that they were not similarly situated. On the motion to dismiss pursuant to CPLR 3211 (a) (7), however, facts that equally support opposing inferences must be resolved in plaintiff’s favor … . Regan v City of Geneva, 2016 NY Slip Op 01101, 4th Dept 2-11-16

 

EMPLOYMENT LAW (DISABILITY [PTSD] DISCRIMINATION CAUSES OF ACTION SHOULD HAVE SURVIVED MOTION TO DISMISS)/HUMAN RIGHTS LAW (DISABILITY [PTSD] DISCRIMINATION CAUSES OF ACTION SHOULD HAVE SURVIVED MOTION TO DISMISS)/REHABILITATION ACT (DISABILITY [PTSD] DISCRIMINATION CAUSES OF ACTION SHOULD HAVE SURVIVED MOTION TO DISMISS)/CIVIL PROCEDURE (WHEN THE ALLEGATIONS OF BOTH SIDES ARE EQUALLY SUPPORTED, PLAINTIFF MUST PREVAIL IN A MOTION TO DISMISS)/MUNICIPAL LAW (POLICE OFFICERS CAUSES OF ACTION FOR DISABILITY [PTSD] DISCRIMINATION SHOULD HAVE SURVIVED MOTION TO DISMISS)POLICE OFFICERS (OFFICER’S CAUSES OF ACTION FOR DISABILITY [PTSD] DISCRIMINATION SHOULD HAVE SURVIVED MOTION TO DISMISS)

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DEPARTMENT OF HEALTH ENTITLED TO QUALIFIED PRIVILEGE FOR PRESS RELEASE ABOUT TATOO-RELATED INFECTIONS, PLAINTIFF UNABLE TO DEMONSTRATE MALICE.

The Fourth Department determined the defendant county Department of Health was entitled to summary judgment on plaintiff’s defamation cause of action. The Department of Health had linked eight cases of infection to a particular tatoo artist. The tatoo artist told the Department he worked for plaintiff Tatoos by Design, Inc., doing business as Hardcore Tatoo. The Department issued a press release warning of the infections and noted that the tatoo artist in question reported to them he had worked for Hardcore. The Fourth Department held the Department of Health had a qualified privilege to issue the health warning and plaintiff was unable to demonstrate the press release was motivated solely by malice:

 

Generally, a statement is subject to a qualified privilege when it is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned’ ” … . Defendants, as public health officials, had a public duty to inform the public about the hazards of potential exposure to the subject tattoo artist’s work (see Public Health Law § 2100…), and it was within the scope of that duty that the press release containing the allegedly defamatory statements was issued … .

Once defendants established that the statements in the press release were protected by a qualified privilege, the burden shifted to plaintiffs to raise a triable issue of fact “whether the statements were motivated solely by malice” … , meaning “spite or a knowing or reckless disregard of a statement’s falsity”… . Tattoos By Design, Inc. v Kowalski, 2016 NY Slip Op 01091, 4th Dept 2-11-16

 

DEFAMATION (QUALIFIED PRIVILEGE FOR PRESS RELEASE ISSUED BY DEPARTMENT OF HEALTH)/PRIVILEGE (DEFAMATION, DEPARTMENT OF HEALTH ENTITLED TO QUALIFIED PRIVILEGE RE: PRESS RELEASE)/PUBLIC HEALTH LAW (DEFAMATION, DEPARTMENT OF HEALTH ENTITLED TO QUALIFIED PRIVILEGE RE: PRESS RELEASE)/MUNICIPAL LAW (DEFAMATION, COUNTY DEPARTMENT OF HEALTH ENTITLED TO QUALIFIED PRIVILEGE RE: PRESS RELEASE)

AIR FRESHENERS HANGING FROM REAR-VIEW MIRROR PROVIDED PROBABLE CAUSE JUSTIFYING VEHICLE STOP.

The Fourth Department, in the context of upholding the revocation of petitioner’s license for refusing to submit to a chemical blood alcohol test, determined the arresting officer had probable cause to believe petitioner had committed a traffic offense, and therefore the vehicle-stop was valid. The basis of the stop was the officer’s observation of air fresheners hanging three or four inches below the rear-view mirror:

 

… [P]olice stops of automobiles in this State are legal only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations or when there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime’ . . . [,] or where the police have probable cause to believe that the driver . . . has committed a traffic violation’ ” … . …[P]robable cause . . . does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed’ ” … . Here, the record establishes that the officer had probable cause to believe that petitioner was violating Vehicle and Traffic Law § 375 (30) inasmuch as the officer testified that he observed objects measuring approximately four inches wide—later identified as air fresheners—hanging three or four inches below the rearview mirror, and that those objects may have obstructed petitioner’s view through the windshield … . Matter of Deveines v New York State Dept. of Motor Vehs. Appeals Bd., 2016 NY Slip Op 01074, 4th Dept 2-11-16

 

CRIMINAL LAW (AIR FRESHENERS PROVIDED PROBABLE CAUSE FOR VEHICLE STOP)/DRIVING WHILE INTOXICATED (AIR FRESHENERS PROVIDED PROBABLE CAUSE FOR VEHICLE STOP)/VEHICLE STOP (AIR FRESHENERS PROVIDED PROBABLE CAUSE FOR STOP)/AIR FRESHENERS (PROVIDED PROBABLE CAUSE FOR VEHICLE STOP)

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UNNECESSARILY ALLOWING THE JURY TO KNOW DEFENDANT WAS A REGISTERED SEX OFFENDER WAS NOT JUSTIFIED BY ANY REASONABLE DEFENSE STRATEGY, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, CONVICTION REVERSED.

The Fourth Department reversed defendant’s conviction, finding he did not receive effective assistance of counsel. Defendant was accused of rape. Although it was not necessary to do so, defense counsel allowed the jury to learn that defendant was a registered sex offender and mentioned the sex-offender status in voir dire, in his opening, during cross-examination and in his closing.  The Fourth Department determined there was no reasonable defense strategy which could justify repeated reference to defendant’s sex-offender status:

 

… [W]e conclude that defense counsel’s strategy, i.e., to allow the jury to know that defendant was a registered sex offender and then argue that the police focused their investigation on defendant because he was a registered sex offender, was based on an obviously false premise. The police focused their investigation on defendant because his DNA profile matched that of the rapist, not because he was a registered sex offender. Moreover, defendant’s DNA profile was in CODIS because he was a convicted felon, not because he had committed a sexual offense. This is not to say that defense counsel pursued an unreasonable defense theory at trial. The theory was that defendant had consensual intercourse with the victim on the same day that she was raped by someone else. In pursuing that theory, however, it was unnecessary for defense counsel to inform the jury that defendant was a registered sex offender. In fact, any chance that the jurors would have believed defendant’s testimony about the intercourse being consensual was likely extinguished once they learned that he had previously committed a sex offense. In short, defendant derived no discernible benefit from the jury knowing that he was a registered sex offender, and was highly prejudiced thereby. People v Stefanovich, 2016 NY Slip Op 01070, 4th Dept 2-11-16

 

CRIMINAL LAW (ALLOWING JURY TO KNOW DEFENDANT WAS A REGISTERED SEX OFFENDER CONSTITUTED INEFFECTIVE ASSISTANCE)/ATTORNEYS (ALLOWING JURY TO KNOW DEFENDANT WAS A REGISTERED SEX OFFENDER CONSTITUTED INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE OF COUNSEL (ALLOWING JURY TO KNOW DEFENDANT WAS A REGISTERED SEX OFFENDER CONSTITUTED INEFFECTIVE ASSISTANCE)

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THE RECORD DID NOT SUPPORT A FINDING THAT DEFENDANT, WHO WAS MENTALLY ILL, UNDERSTOOD THE APPEAL WAIVER; DEFENDANT SHOULD HAVE BEEN ACCORDED YOUTHFUL OFFENDER STATUS.

The Fourth Department, over a two-justice dissent, determined defendant’s waiver of appeal was invalid and defendant should have been accorded youthful offender status. The appeal waiver, the court noted, may have been valid for another defendant, but this defendant’s mental illness, which was evident in the appeal-waiver colloquy, indicated defendant did not understand the waiver.  Defendant was between the ages of 16 and 19 when he committed the burglary, he had no prior contact with the criminal justice system, and reports indicated the criminal behavior was an aberration caused by defendant’s mental illness and inappropriate treatment:

In view of defendant’s particular circumstances, i.e., his youth, inexperience, and history of mental illness, along with his statements during the plea proceeding, we conclude that defendant’s understanding of the waiver of the right to appeal is not evident on the face of the record, and that the waiver is invalid. In reaching that conclusion, we note that the same oral colloquy may have been adequate in other circumstances for a defendant of a different “age, experience and background” … . “[T]he same or similar oral colloquy . . . can produce an appeal waiver that is valid as to one defendant and invalid as to another defendant” … . Here, however, we “cannot be certain that . . . defendant comprehended the nature of the waiver of appellate rights” … . Review of defendant’s challenge to the denial of his application for youthful offender status is therefore not foreclosed by the waiver of the right to appeal.

We agree with defendant’s contention in both appeals that he should be afforded youthful offender status. It is undisputed that defendant, who was between the ages of 16 and 19 when the crimes were committed, is eligible for youthful offender treatment under CPL 720.10 (1) and (2) … . In determining whether to afford such treatment to a defendant, a court must consider “the gravity of the crime and manner in which it was committed, mitigating circumstances, defendant’s prior criminal record, prior acts of violence, recommendations in the presentence reports, defendant’s reputation, the level of cooperation with authorities, defendant’s attitude toward society and respect for the law, and the prospects for rehabilitation and hope for a future constructive life” … . People v Thomas R.O., 2016 NY Slip Op 01086, 4th Dept 2-11-16

 

OFFICER DID NOT HAVE GROUNDS TO PROCEED TO A LEVEL TWO INQUIRY, ASKING DEFENDANT IF HE HAD ANY WEAPONS OR DRUGS; SEIZURE WHEN DEFENDANT WALKED AWAY WAS ILLEGAL.

The Fourth Department reversed defendant’s conviction because it determined the suppression motion should have been granted. Although the arresting officer validly stopped the car in which defendant was a passenger because of tinted windows, validly asked about defendant’s identity and destination, and validly asked defendant to step out of the car, there was no valid basis for asking defendant if he had any weapons or drugs. The escalation of the officer’s questioning, based only on defendant’s nervousness and not on a grounded suspicion of criminal activity, was not justified. Therefore the officer’s seizure of defendant when defendant walked away and did not obey the officer’s command to stop was illegal. The cocaine, which was disposed of by the defendant during the illegal pursuit, should have been suppressed:

 

The officer testified at the suppression hearing that, when defendant responded to his level one inquiries, defendant appeared fidgety, grabbed at his pants pockets, looked around, and gave illogical and contradictory responses to the officer’s questions, which prompted the officer to ask defendant whether he had any weapons or drugs. With that question, the officer “proceed[ed] to the next level of confrontation, the common-law inquiry,’ which involves invasive questioning’ focusing on the possible criminality’ of the subject” … . That escalation was not supported by the requisite founded suspicion of criminality … . Defendant’s nervousness and the discrepancies in his explanation of where he was going did not give rise to a founded suspicion that criminal activity was afoot … .

Defendant responded to the officer’s level two inquiry by saying, “you’re harassing me,” and then walking away. The encounter escalated further to a level three seizure when the officer commanded him to stop, defendant continued to walk away, and the officer pursued defendant with a taser … . We reject the People’s contention that defendant’s conduct provided the officer with the requisite reasonable suspicion of criminality … . “Flight alone is insufficient to justify pursuit because an individual has a right to be let alone and refuse to respond to police inquiry” … . Finally, we conclude that defendant’s disposal of the bags containing cocaine during the officer’s pursuit was precipitated by the illegality of that pursuit … . Thus, the court erred in refusing to suppress the bags of cocaine. People v Hightower, 2016 NY Slip Op 01083, 4th Dept 2-11-16

 

CRIMINAL LAW (SECOND FELONY DRUG OFFENDER SENTENCE, COURT ABUSED DISCRETION BY NOT ORDERING TRANSCRIPTS TO ALLOW DEFENDANT TO CHALLENGE PRIOR CONVICTION)/SENTENCING (SECOND FELONY DRUG OFFENDER SENTENCE, COURT ABUSED DISCRETION BY NOT ORDERING TRANSCRIPTS TO ALLOW DEFENDANT TO CHALLENGE PRIOR CONVICTION)/SECOND FELONY DRUG OFFENDER (COURT ABUSED DISCRETION BY NOT ORDERING TRANSCRIPTS TO ALLOW DEFENDANT TO CHALLENGE PRIOR CONVICTION)

SECOND FELONY DRUG OFFENDER SENTENCE: COURT ABUSED ITS DISCRETION BY PROMISING TO OBTAIN TRANSCRIPTS TO ALLOW DEFENDANT TO CHALLENGE THE PRIOR CONVICTION AND THEN DECIDING NOT TO ORDER THE TRANSCRIPTS.

The Fourth Department determined defendant, who was sentenced as a second felony drug offender, should have been afforded a hearing to substantiate a constitutional challenge to a prior conviction. County Court indicated the transcripts of the prior proceedings would be provided, but ultimately sentenced defendant without providing them:

 

… [T]he court abused its discretion in sentencing him as a second felony drug offender without affording him the opportunity to substantiate his constitutional challenge to the predicate felony conviction with the transcripts of the proceeding underlying that conviction and without holding a hearing for that purpose. Inasmuch as defendant did not controvert the existence of the predicate felony conviction, it was incumbent upon defendant “to allege and prove facts to establish his claim that the conviction was unconstitutionally obtained” … . The record establishes that defendant, who was proceeding pro se, alleged certain constitutional violations in writing, and repeatedly and timely requested the necessary transcripts in order to prepare his constitutional challenge. The court promised to obtain the transcripts for defendant, acknowledged on the scheduled hearing date its oversight in failing to act on that promise and, upon being challenged by defendant at a rescheduled hearing, ultimately admitted that, after months of adjournments, it had decided not to order the transcripts as it had previously promised. Although there is no requirement that a trial court obtain such transcripts on a defendant’s behalf, we conclude that, under the circumstances of this case, the court should not have proceeded to sentencing without at least attempting to obtain the transcripts sought by defendant and providing defendant a hearing on his constitutional challenge to the predicate felony conviction … . People v Farmer, 2016 NY Slip Op 01095, 4th Dept 2-11-16

 

CRIMINAL LAW (SECOND FELONY DRUG OFFENDER SENTENCE, COURT ABUSED DISCRETION BY NOT ORDERING TRANSCRIPTS TO ALLOW DEFENDANT TO CHALLENGE PRIOR CONVICTION)/SENTENCING (SECOND FELONY DRUG OFFENDER SENTENCE, COURT ABUSED DISCRETION BY NOT ORDERING TRANSCRIPTS TO ALLOW DEFENDANT TO CHALLENGE PRIOR CONVICTION)/SECOND FELONY DRUG OFFENDER (COURT ABUSED DISCRETION BY NOT ORDERING TRANSCRIPTS TO ALLOW DEFENDANT TO CHALLENGE PRIOR CONVICTION)

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COURT SHOULD HAVE ALLOWED SUBSTITUTION OF AN AFFIDAVIT OF MERIT PURSUANT TO CPLR 2001; SUA SPONTE DISMISSAL OF COMPLAINT NOT WARRANTED.

The Fourth Department determined Supreme Court should have granted plaintiff’s motion to substitute nunc pro tunc an affidavit of merit and amount due in a foreclosure proceeding. Plaintiff could not confirm the proper execution of the original affidavit (a requirement of an administrative order of the chief administrative judge) and sought to substitute the original with an identical affidavit, the proper execution of which could be confirmed. Supreme Court denied the motion and dismissed the complaint sua sponte. The Fourth Department held that the dismissal was not warranted and CPLR 2001 permitted the substitution:

 

” A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal’ ” … . Here, we conclude that “[t]he fact that . . . plaintiff’s [new] attorney[s] attempted to comply, in good faith, with an Administrative Order of the Chief Administrative Judge that did not exist at the time that the action was commenced, or at the time [the judgment of foreclosure and sale was granted], does not qualify as such an extraordinary circumstance’ ” that would support a sua sponte dismissal … . Indeed, “[n]othing in the Administrative Order[] requires the dismissal of an action merely because the plaintiff’s attorney[s] discover[] that there was some irregularity or defect in a prior submission” … . Thus, contrary to the court’s determination, we conclude that plaintiff is not “effectively required to commence an entirely new action” … .

We further conclude that the court erred in denying that part of plaintiff’s motion seeking to substitute the affidavit of merit and amount due. “CPLR 2001 permits a court, at any stage of an action, to disregard a party’s mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced” … . In addition, “[p]ursuant to CPLR 5019 (a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party” … . Here, we conclude that the substitution of the original affidavit of merit and amount due with a new, substantively identical affidavit of merit and amount due was a ministerial amendment permitted by CPLR 2001 and CPLR 5019 (a) inasmuch as the change affected only plaintiff’s ability to comply with the Administrative Order, and “[t]he attorney affirmation is not itself substantive evidence” … . We further conclude that “[n]o substantial right of [defendant .. .would] be affected by the court’s substitution” … . Indeed, that defendant did not reside in the subject property when plaintiff commenced the mortgage foreclosure action and the property was vacant at that time, and he never joined this action nor made any effort to contest the foreclosure. Wells Fargo Bank, N.A. v Watanabe, 2016 NY Slip Op 01096, 4th Dept 2-11-16

 

CIVIL PROCEDURE (SUA SPONTE DISMISSAL OF FORECLOSURE COMPLAINT NOT WARRANTED, SUBSTITUTE AFFIDAVIT OF MERIT ALLOWED BY CPLR 2001)/FORECLOSURE (SUA SPONTE DISMISSAL OF FORECLOSURE COMPLAINT NOT WARRANTED, SUBSTITUTE AFFIDAVIT OF MERIT ALLOWED BY CPLR 2001)/AFFIDAVIT OF MERIT AND AMOUNT DUE (SUA SPONTE DISMISSAL OF FORECLOSURE COMPLAINT NOT WARRANTED, SUBSTITUTE AFFIDAVIT OF MERIT ALLOWED BY CPLR 2001)

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ORDER ENTERED ON CONSENT IS NOT APPEALABLE; ONLY REMEDY IS MOTION TO VACATE.

In a Family Court matter, the Fourth Department noted that no appeal lies from an order entered by consent. The correct remedy is a motion to vacate the order:

 

Respondent mother appeals from an order denying her motion to vacate an order of fact-finding and disposition, which was entered on the consent of the parties. We agree with the mother that Family Court erred in denying the motion on the sole ground that a direct appeal from that order was pending. It is well settled that “[n]o appeal lies from an order entered upon the parties’ consent” … and, indeed, we dismissed the mother’s appeal from the consent order for that very reason … . Thus, contrary to the court’s determination, the mother’s sole remedy was ” to move in Family Court to vacate the order, at which time [she] [could] present proof in support of [her] allegations of duress, proof which is completely absent from this record’ ” … . Matter of Annabella B.C. (Sandra L.C.), 2016 NY Slip Op 01064, 4th Dept 2-11-16

 

APPEAL (NO APPEAL LIES FROM A CONSENT ORDER)/CIVIL PROCEDURE (NO APPEAL LIES FROM A CONSENT ORDER, ONLY REMEDY IS MOTION TO VACATE)/FAMILY LAW (NO APPEAL LIES FROM A CONSENT ORDER OF FACT-FINDING AND DISPOSITION, ONLY REMEDY IS MOTION TO VACATE)

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COLLEGE’S DETERMINATION WAS NOT ARBITRARY AND CAPRICIOUS; AGENCY’S RATIONAL RULING MUST BE UPHELD EVEN IF THE REVIEWING COURT WOULD HAVE DECIDED DIFFERENTLY.

The Fourth Department determined Supreme Court should not have anulled the respondent college’s ruling as arbitrary and capricious. The controversy concerned the hiring of a business manager by the student government (Brockport Student Government or BSG). Although BSG had the power to hire a manager at approximately $50,000 a year, the college, which must ultimately approve the hiring, rejected it and engaged a managing service for $20,000 less. Because the college’s ruling had a rational basis, it could not be deemed arbitrary and capricious simply because the reviewing court would have decided differently. The Fourth Department explained what “arbitrary and capricious” means:

 

…[T]the court erred in determining that their denial of BSG’s budget allocation for a business manager was arbitrary and capricious. It is well established that “[a]n action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts . . . An agency’s determination is entitled to great deference and, [i]f the [reviewing] court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency” … . Here, we conclude that respondents’ discretionary determination to reject BSG’s proposed $49,800 salary for a business manager which was based on a comparison of the “hiring practices and compensation rates of other campus-affiliated organizations”… . Matter of Brockport Student Govt. v State Univ. of N.Y. at Brockport, 2016 NY Slip Op 01099, 4th Dept 2-11-16

 

ADMINISTRATIVE LAW (AGENCY’S RATIONAL RULING MUST BE UPHELD EVEN IF REVIEWING COURT WOULD HAVE DECIDED DIFFERENTLY)/EDUCATION-SCHOOL LAW (COLLEGE’S REJECTION OF REQUEST BY STUDENT GOVERNMENT HAD A RATIONAL BASIS AND THEREFORE WAS NOT ARBITRARY AND CAPRICIOUS)/ARBITRARY AND CAPRICIOUS (RATIONAL RULING MUST BE UPHELD EVEN IF REVIEWING COURT WOULD HAVE DECIDED DIFFERENTLY)

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