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WHETHER THE CHILD VICTIMS ACT (CVA) REVIVES OTHERWISE TIME-BARRED WORKERS’ COMPENSATION CLAIMS AND WHETHER PLAINTIFF’S DAMAGES ARE LIMITED TO WORKERS’ COMPENSATION BENEFITS ARE QUESTIONS OF LAW FOR THE COURT, NOT THE WORKERS’ COMPENSATION BOARD (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, held the court, not the Workers’ Compensation Board, must determine whether damages in this Child Victims Act (CVA) sexual-abuse action against the alleged perpetrator’s employer are limited to Workers’ Compensation benefits and whether claims for time-barred Workers’ Compensation benefits are revived by the Child Victims Act (CVA):​

” ‘As a general rule, when an employee is injured in the course of . . . employment, [the employee’s] sole remedy against [their] employer lies in [their] entitlement to a recovery under the Workers’ Compensation Law’ ” … . “[T]he issue whether a plaintiff was acting as an employee of a defendant at the time of the injury is a question of fact to be resolved by the Board” … .

“[C]ourts defer to [an] administrative agency where the issue involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom” … . However, “[w]here . . . the question is one of pure statutory interpretation, [courts] need not accord any deference to [an administrative body’s] determination and can undertake its function of statutory construction” … . As relevant here, although a factual determination with respect to the applicability of the Workers’ Compensation Law should be referred to the Board, which has primary jurisdiction over that issue, questions of law remain within the domain of the court … . Here, whether the CVA revives otherwise time-barred claims for workers’ compensation benefits, based on allegations of sexual abuse by a coworker, and whether plaintiffs are limited to benefits under the Workers’ Compensation Law even if their claims are revived, are questions of law to be decided by the court, not the Board. Thus, we agree with the plaintiffs that Supreme Court erred in granting defendant’s motion, staying the actions pending review by the Board, and holding plaintiffs’ cross-motions to amend their complaints in abeyance pending the Board’s decision. Bates v Gannett Co., Inc., 2024 NY Slip Op 03999, Fourth Dept 7-26-24

Practice Point: This decision deals with the questions of law raised by applying the Workers’ Compensation Law to sexual abuse claims revived by the Child Victims Act (CVA).​

 

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WHERE THERE ARE MULTIPLE EXCESS COVERAGE POLICIES COVERING THE SAME RISK, THE EXCESS COVERAGE CLAUSES CANCEL EACH OTHER OUT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, explained how multiple “excess coverage” insurance policies should be applied:

“[W]here there are multiple policies covering the same risk, and each generally purports to be excess to the other, the excess coverage clauses are held to cancel out each other and each insurer contributes in proportion to its [policy] limit,” unless to do so would distort the plain meaning of the policies … . By contrast, “if one party’s policy is primary with respect to the other policy, then the party issuing the primary policy must pay up to the limits of its policy before the excess coverage becomes effective”  … . Kolli v Kaleida Health, 2024 NY Slip Op 03998, Fourth Dept 7-26-24

Practice Point: The excess coverage clauses in multiple excess coverage policies covering the same risk cancel each other out.

 

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DEFENDANT WAS NOT IN “CLOSE PROXIMITY” TO THE DRUGS WITHIN THE MEANING OF THE “ROOM” OR “DRUG FACTORY” PRESUMPTION; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s possession-of-drugs convictions and ordering a new trial, determined the “room” or “drug factory” presumption was not applicable:

… [S]ection 220.25 (2) provides that “[t]he presence of a narcotic drug . . . in open view in a room . . . under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found.” “Penal statutes ‘must be construed according to the fair import of their terms to promote justice and effect the objects of the law’ ” … . The drug factory presumption is “intended to allow police in the field to identify potentially culpable individuals involved in a drug business, under circumstances that demonstrate those individuals’ participation in a drug operation” … . According to its drafters, the presumption is “designed to remedy that situation wherein police execute a search warrant on a premises suspected of being a ‘drug factory,’ only to find dangerous drugs and/or drug paraphernalia scattered about the room. The occupants of such ‘factories,’ who moments before were diluting or packaging the drugs, usually proclaim their innocence and disclaim ownership of, or any connection with, the materials spread before them. Police, under such circumstances, are often uncertain as to whom to arrest. In addition, with the present burden of proof of knowing possession of dangerous drugs on the [P]eople, successful prosecution of persons other than the owner or lessee of such premises is extremely rare” … . …

… [T]he phrase “close proximity” in Penal Law § 220.25 (2) means “when the defendant is sufficiently near the drugs so as to evince defendant’s participation in an apparent drug sales operation, thus supporting a presumption of defendant’s knowing possession” … . “[T]he proximity determination requires careful consideration of the underlying facts related to defendant’s location on the premises” … . Thus, a defendant need not be apprehended within the same room as the drugs in order to satisfy the element of “close proximity” … , and the presumption applies to a defendant caught while trying to flee the premises upon the sudden entry by police … .  …

… [D]efendant was not apprehended in close proximity to the drugs as contemplated by the drug factory presumption, i.e., he was not “sufficiently near the drugs so as to evince defendant’s participation in an apparent drug sales operation, thus supporting a presumption of defendant’s knowing possession” … . Defendant was not apprehended in the room with the drugs, he was not apprehended fleeing from that room, and he was not apprehended within or outside of the home while attempting to hide from police. Thus, he was not apprehended under circumstances suggesting that he had, just “moments before,” been engaged in drug distillation or packaging … . People v Campbell, 2024 NY Slip Op 03995, Fourth Dept 7-26-24

Practice Point: Consult this decision for an explanation of the “room” or “drug factory” presumption re: the possession of drugs.​

 

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HERE THE APPELLATE DIVISION, IN THE INTEREST OF JUSTICE, ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER (FOURTH DEPT).

The Fourth Department, reversing County Court, over a two-justice dissent, determined defendant should have been sentenced as a youthful offender for his role in a robbery::

… [T]he factors weighing against affording defendant youthful offender treatment are the seriousness of the offense, defendant’s alleged gang affiliation, and defendant’s failure to complete interim probation … . However, defendant was 15 years old at the time of the crime and had no prior criminal record. He accepted responsibility for his actions and cooperated with both police on the date of the incident and probation during his presentence report interview. According to his probation officer, although he had not yet begun substance abuse treatment in the extremely short period of time between his release from custody and his remand, he “report[ed] as directed, and ha[d] not secured any new charges.” Probation described defendant as “[m]otivated to avoid further difficulties” and his prognosis for lawful behavior as “guarded.” Indeed, probation asked that defendant’s “sentencing be adjourned for sixty days to allow . . . defendant the opportunity to be placed on electronic monitoring through Probation.” In addition, despite the senseless nature of this incident, defendant did not use a weapon, there is no allegation that this crime was gang-related, defendant was the youngest participant in the crime by approximately three years, and it was clearly an unplanned, spur-of-the-moment decision for which youthful offender adjudication is meant … . People v Davonte S.B., 2024 NY Slip Op 03635, Fourth Dept 7-3-24

Practice Point: The Appellate Division has the power to review the record and adjudicate a defendant a youthful offender in the interest of justice.

 

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A MUNICIPALITY CANNOT BE SUED FOR NEGLIGENT HIRING, RETENTION, TRAINING AND SUPERVISION BASED UPON EMPLOYEES’ ACTIONS ALLEGED TO HAVE BEEN WITHIN THE SCOPE OF THEIR EMPLOYMENT; THE PROPER THEORY IS RESPONDEAT SUPERIOR (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that a municipality cannot be sued for negligent hiring, retention, training and supervision based upon actions taken by employees within the scope of their employment. In that case, the municipality can only be sued under a respondeat superior theory. Here plaintiff sued the City of Buffalo and police officers for actions relating to plaintiff’s arrest:

We agree with defendants that the court erred in denying their motion with respect to the … causes of action against the City of Buffalo, sounding in negligent hiring, negligent retention, and negligent training and supervision … . … [I]n those causes of action plaintiff alleges that the City of Buffalo was negligent in the hiring, retention and training and supervision of [officers] Moriarity and Bridgett, and plaintiff further alleges that Moriarity and Bridgett were acting in their capacities as employees of the City of Buffalo. It is well settled … that “where an employee is acting within the scope of [their] employment, the employer is liable for the employee’s negligence under a theory of respondeat superior and no claim may proceed against the employer for negligent hiring, retention, supervision, or training” … . Taylor, 2024 NY Slip Op 03632, Fourth Dept 7-3-24

Practice Point: A municipality cannot be sued for negligent hiring, retention, training and supervision when the employees’ actions are alleged to have been within the scope of their employment. The municipality should be sued under a respondeat superior theory.

 

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THE COURT’S PRIOR ORDER STATED FATHER’S COMPLIANCE FOR SIX MONTHS WOULD CONSTITUTE A CHANGE IN CIRCUMSTANCES AND FATHER DEMONSTRATED SUCH COMPLIANCE; IN ADDITION MOTHER’S RELOCATION TO ARIZONA WITHOUT PERMISSION CONSTITUTED A CHANGE IN CIRCUMSTANCES; IN-PERSON VISITATION ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined father demonstrated a change in circumstances warranting in-person visitation with the children. The prior order of the court stated that father’s compliance for six months would constitute a change in circumstances and father demonstrated such compliance. In addition, mother’s relocation to Arizona without permission also constituted an actionable change in circumstances:

The prior order provided “that sufficient compliance with [the] order for a period of six (6) months will constitute a change of circumstances for [f]ather to re[-]petition for additional visitation time and overnights.” The father testified that he had been exercising his visitation consistently until the mother moved to Arizona with the children, an assertion that went unchallenged during the hearing. We conclude that the father established a change in circumstances based on his compliance with the terms of the prior order. We also conclude that the mother’s relocation without permission constituted a change in circumstances because it resulted in a substantial interference with the father’s visitation rights … .

Based on the record before us, we further conclude that modification of the father’s visitation schedule to include in-person visitation would serve the children’s best interests … . Matter of Hudson v Carter, 2024 NY Slip Op 03615, Fourth Dept 7-3-24

Practice Point: If a court order indicates compliance for six months will constitute a change in circumstances warranting modification of custody, that condition should be honored by the court.

 

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THE WARRANT AUTHORIZING THE SEARCH OF THE CONTENTS OF DEFENDANT’S CELL PHONE DID NOT RESTRICT THE SEARCH TO EVIDENCE OF ANY PARTICULAR CRIME AND DID NOT INCORPORATE THE POLICE INVESTIGATOR’S AFFIDAVIT WHICH PURPORTEDLY LAID OUT THE BASIS FOR FINDING PROBABLE CAUSE; THE WARRANT DID NOT MEET THE “PARTICULARITY REQUIREMENT” (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction by guilty plea, determined the motion to suppress evidence seized from defendant’s cell phone should have been granted because the search warrant lacked particularity:

A search warrant must be “specific enough to leave no discretion to the executing officer” … . To meet the particularity requirement, a search warrant must (1) “identify the specific offense for which the police have established probable cause,” (2) “describe the place to be searched,” and (3) “specify the items to be seized by their relation to designated crimes” … . Here, the search warrant authorized and directed the police to search for … “cellular phones (including contents)” located in defendant’s vehicle. Significantly, the search was not restricted by reference to any particular crime. Thus, the search warrant failed to meet the particularity requirement and left discretion over the search to the executing officers …. The search warrant states that an affidavit from a police investigator provided the basis for the finding of probable cause for the search. Although that affidavit contained information about the crime and defendant’s exchange of text messages with the victim before the crime, the mere mention in a search warrant of an affidavit or application “does not save the warrant from its facial invalidity” where the search warrant contains no language incorporating that document … . People v Wiggins, 2024 NY Slip Op 03614, Fourth Dept 7-3-24

Practice Point: A search warrant which does not restrict the search to evidence of a particular crime is invalid because it fails to meet the particularity requirement.

Practice Point: Reference in a search warrant to an affidavit which is not incorporated into the warrant doesn’t overcome the defect.

 

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HERE THE PLEA ALLOCUTION DID NOT INDICATE TWO SEPARATE AND DISTINCT ACTS WERE ENCOMPASSED BY COUNTS 2 AND 3; THEREFORE CONSECUTIVE SENTENCES FOR THOSE COUNTS SHOULD NOT HAVE BEEN IMPOSED (FOURTH DEPT). ​

The Fourth Department, vacating defendant’s consecutive sentences, determined there was no evidence the counts to which defendant pled guilty involved two separate and distinct acts:

Sentences imposed for two or more offenses may not run consecutively where, inter alia, “a single act constitutes two offenses” … . Thus, in order for a consecutive sentence to be legally imposed, the People have the burden of demonstrating by “identifiable facts . . . that the defendant’s acts underlying the crimes are separate and distinct” … . Where, as here, the defendant is “convicted upon a plea to a lesser offense than that charged in the indictment, the People may rely only on those facts and circumstances admitted during the plea allocution” in order to meet that burden … .

Here, no facts were adduced at defendant’s plea allocution that would establish two separate and distinct acts causing injury to the victims named in counts 2 and 3, and thus there was no basis for imposing consecutive sentences for those counts … . People v Wright, 2024 NY Slip Op 03613, Fourth Dept 7-3-24

Practice Point: To impose consecutive sentences based upon a guilty plea, the plea allocution must demonstrate the counts encompass separate and distinct acts.​

 

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A TEACHER’S ALLEGED STATEMENT TO THE PLAINTIFF THAT HE WAS AWARE OF THE SEXUAL ABUSE OF THE PLAINTIFF BY ANOTHER TEACHER OCCURRING REPEATEDLY AT SCHOOL WAS DEEMED AN ADMISSION ATTRIBUTABLE TO THE SCHOOL DISTRICT RAISING A QUESTION OF FACT WHETHER THE SEXUAL ABUSE WAS FORESEEABLE BY THE SCHOOL DISTRICT (FOURTH DEPT).

The Fourth Department, over a concurrence disagreeing with the majority ruling that a teacher’s alleged statement was admissible against the school district as an admission, affirmed the denial of the school district’s motion for summary judgment in this Child Victims Act negligent supervision case. Plaintiff, who was a student in the late 60’s, alleged repeated abuse by a teacher in a back room at the school. Another teacher was alleged to have overheard the abuse and allegedly threatened plaintiff with revealing it in an attempt to sexually abuse plaintiff himself. That statement was deemed an admission which raised a question of fact whether the abuse was foreseeable by the school district:

… [P]laintiff testified that the orchestra teacher offered her a ride home from a bus stop after an evening event at the school. Instead of taking her home, however, the orchestra teacher took her to a park where, according to plaintiff, he told her “that he knew what was going on because he could hear through the walls from the orchestra room into that back room [where Fleming’s office was located] and that [plaintiff] didn’t want it to get out — [plaintiff] wouldn’t want it to come out, so [she] should be nice to him.” When plaintiff responded that she did not know what the orchestra teacher was talking about, he attempted to kiss her. * * *

The court determined that the entirety of the statement attributed to the orchestra teacher was admissible as a vicarious party admission of defendant under CPLR 4549 and therefore properly considered when evaluating defendant’s motion for summary judgment, because the orchestra teacher was employed by defendant and “[r]ecognizing and responding to the abuse of students while on school grounds certainly falls within the scope of the duties of a teacher employed by [defendant].” * * *

We conclude that it is within the scope of a teacher’s employment relationship to identify and assist a student who they believe is being sexually abused, and that the orchestra teacher’s statement indicating awareness of the abuse of plaintiff was therefore “on a matter within the scope of [the employment] relationship” … . We further conclude that the orchestra teacher’s statement professing knowledge of the abuse occurred “during the existence of” the employment relationship, within the meaning of CPLR 4549, inasmuch as it is undisputed that he was employed by defendant at the time the statement was made. Therefore, we agree with the court that the statement is admissible pursuant to CPLR 4549. Bl Doe 5, 2024 NY Slip Op 03608, Fourth Dept 7-3-24

Practice Point: In a negligent supervision action against a school district, is a statement allegedly made by a teacher to a student indicating the teacher’s awareness of repeated sexual abuse of the student by another teacher, taking place at school, admissible against the school district as an admission of its awareness of the abuse? Here the court answered “yes” over a concurrence which disagreed.

 

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​ THE DOCTRINE OF MERGER REQUIRED REVERSAL OF THE KIDNAPPING CONVICTION AND THE INCLUSORY-CONCURRENT-COUNT DOCTRINE REQUIRED REVERSAL OF THE FORCIBLE TOUCHING CONVICTION (FOURTH DEPT).

The Fourth Department, reversing the kidnapping and forcible touching convictions determined the doctrine of merger precluded the kidnapping conviction and the forcible touching count was in inclusory concurrent count re: stalking:

Defendant appeals from a judgment convicting him, upon a jury verdict, of attempted kidnapping in the second degree as a sexually motivated felony … , stalking in the first degree … , and forcible touching … .

Defendant approached the victim while she was walking alone on a street. After a brief verbal encounter, defendant began to follow the victim, grabbing her buttocks and then restraining her before ultimately releasing her and walking away. * * *

The merger doctrine is “a means of effectuating the Legislature’s intent [to effectuate a statutory scheme presenting a range of offenses and penalties measured by the gravity of a defendant’s conduct] by precluding additional kidnapping sanctions for conduct that, while literally falling within the definition of that crime, was not intended to be separately treated as kidnapping,” such as “conduct that, in fairness, should result in a single conviction” … . The “guiding principle” of the merger doctrine inquiry is whether the acts of restraint or abduction were ” ‘so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them’ ” … . Where the alleged “abduction and underlying crime are discrete, for example, there is no merger,” but “where there is minimal asportation immediately preceding [the underlying crime], the abduction should not be considered kidnapping” … . Here, defendant’s restraint of the victim was “simultaneous [with] and inseparable from” defendant’s stalking and forcible touching of the victim … , such that “independent criminal responsibility may not fairly be attributed” to the attempted kidnapping … .

Finally, we conclude that, as charged … , it was impossible for defendant to commit stalking in the first degree without, by the same conduct, committing forcible touching, thereby rendering forcible touching an inclusory concurrent count of stalking in the first degree … . People v Woods, 2024 NY Slip Op 03606, fourth Dept 7-3-24

Practice Point: Here is an illustration of the merger doctrine applied to reverse a kidnapping conviction and the inclusory-concurrent-count doctrine applied to reverse a forcible touching conviction.

 

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