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Motion to Quash Subpoena for Billing Records Re: the Insurance Company’s Examining Physician Properly Denied

The Fourth Department determined a motion to quash a subpoena duces tecum was properly denied, even though the billing documents for the insurance company’s (State Farm’s) examining physician were sought for cross-examination and impeachment purposes:

State Farm moved to quash the subpoena pursuant to CPLR 2304 on the ground that it was plaintiff’s intent to use the subpoenaed materials to impeach the examining physician’s general credibility. Plaintiff opposed the motion on the ground that she intended to use the subpoenaed documents to cross-examine the examining physician at trial with respect to his bias or interest. Supreme Court denied the motion, and we affirm.

“It is . . . well settled that a motion to quash a subpoena duces tecum should be granted only where the materials sought are utterly irrelevant to any proper inquiry” … . “Moreover, the burden of establishing that the requested documents and records are utterly irrelevant is on the person being subpoenaed” … . It is “proper to allow cross-examination of a physician regarding the fact that the defendant’s insurance company retained him to examine the plaintiff in order to show bias or interest on the part of the witness” … . Questions concerning the bias, motive or interest of a witness are relevant and should be “freely permitted and answered” …  and, thus, plaintiff is entitled to discovery materials that will assist her in preparing such questions. In light of the foregoing, we conclude that the court did not abuse its discretion in denying the motion. Dominici v Ford, 2014 NY Slip Op 05081, 4th Dept 7-3-14

 

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Statement by Reporter About a Judicial Proceeding Entitled to Absolute Privilege

The Fourth Department determined a reporter’s (Velez-Mitchell;s) statements about a judicial proceeding were entitled to absolute privilege under Civil Rights Law 74.  The report concerned a lawsuit brought by a transgender woman and included reference to a DVD the woman had received from plaintiff Most Holy Family Monastery (MHFM).  The DVD was entitled “Death and the Journey to Hell.” The plaintiff contended the report falsely asserted that the Most Holy Family Monastery advocated putting homosexuals to death:

…[D]efendants are entitled to the absolute privilege set forth in Civil Rights Law § 74 … . The … statement was made in the context of the interview conducted by Velez-Mitchell, which concerned, inter alia, pending judicial proceedings commenced by the woman in California after her personal information had allegedly been misused by the DMV employee. During the interview, the woman and her attorney explained that the woman had obtained a temporary restraining order against the DMV employee based upon that employee’s misuse of her personal information, and that she had thereafter received the package from MHFM. The broadcast of the interview was twice promoted as a transgender woman “suing,” and a caption beneath the woman’s image stated, inter alia, “Transgender Woman Suing DMV.” Velez-Mitchell questioned a former prosecutor regarding the viability of an anticipated lawsuit against the DMV, and the woman’s attorney stated that “[t]he Human Rights Commission filed a complaint” concerning the incident and the “big picture is about privacy and the legal right to have [one’s] privacy protected.”

“When examining a claim of libel, we do not view statements in isolation. Instead, [t]he publication must be considered in its entirety when evaluating the defamatory effect of the words’ ” … . Here, “[r]ealistically considered,” the first statement provided background facts for the woman’s claims in pending and anticipated judicial proceedings, and the broadcast as a whole was a ” substantially accurate’ ” report of the judicial proceedings … . Consequently, the first statement is entitled to the absolute privilege set forth in Civil Rights Law § 74. Dimond v Time Warner Inc, 2014 NY Slip Op 05060, 4th Dept 7-3-14

 

Court Should Not Have Imposed a Greater Sentence Based Solely on Bare Fact Defendant Had Been Arrested Since His Guilty Plea

The Fourth Department determined County Court erred when it enhanced defendant’s sentence based solely on the indication in the presentence report that he had been arrested after his guilty plea:

On the day of sentencing, the court noted that, two weeks after defendant’s plea of guilty, defendant was arrested in the Town of Allegany and charged with a violation and a class A misdemeanor. The court thereafter imposed on defendant a term of imprisonment, rather than one of the lesser alternatives it had previously mentioned, based upon defendant’s postplea arrest. The record is clear that the court based its determination to impose a term of imprisonment solely on the information contained in the presentence report that defendant had been arrested and charged with the violation and misdemeanor. Notably, in response to the court’s inquiry concerning “what was happening” with that matter, defense counsel responded that he did not represent defendant on the matter and that it was still pending in local court. Thus, we conclude that, in imposing a term of imprisonment, the court erred in relying on the ” mere fact’ ” that defendant had been arrested …, and that it failed to “carry out an inquiry of sufficient depth to satisfy itself that there was a legitimate basis” for defendant’s arrest … . People v Kolata, 2014 NY Slip Op 05101, 4th Dept 7-3-14

 

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Petitioners Did Not Have Standing to Contest County’s Negative Declaration After a SEQRA Review

The Fourth Department determined petitioners did not have standing to contest the county’s negative declaration pursuant to a State Environmental Quality Review Act (SEQRA) review.  The action involved the county’s permitting the Monroe County Fair and Recreation Association, Inc. to operate a four-day agricultural festival on county land:

Where, as here, the proceeding does not involve a “zoning-related issue . . . , there is no presumption of standing to raise a SEQRA challenge” based solely on a party’s proximity … . In such a situation, parties seeking to establish standing must establish that the injury of which they complain “falls within the zone of interests,’ or concerns, sought to be promoted or protected” …, and that they “would suffer direct harm, injury that is in some way different from that of the public at large” … . Contrary to petitioners’ contention, we conclude that the court properly determined that the environmental effects relied on by each petitioner to establish his or her standing are no different in either kind or degree from that suffered by the general public … . We further conclude that the alleged environmentally related injuries are too speculative and conjectural to demonstrate an actual and specific injury-in-fact … . Thus, the court did not err in concluding that none of the petitioners has standing … . Matter of Kindred v Monroe County, 2014 NY Slip Op 05069, 4th Dept 7-3-14

 

In a Partition Action, Tenant in Common Not Liable to Other Tenants in Common for Use and Occupancy of the Property/Tenant in Common Entitled to Reimbursement from Other Tenants in Common for Taxes and Repairs

In the context of a partition action, the Fourth Department explained that a tenant in common is not liable to other tenants in common for the use and occupancy of the property and is entitled to reimbursement of any payments made for taxes and repairs:

Contrary to plaintiffs’ contention, the court properly determined that defendant was not liable to them for the value of defendant’s use and occupancy. “[P]artition is an equitable remedy in nature and [the court] has the authority to adjust the rights of the parties so [that] each receives his or her proper share of the property and its benefits” (Hunt v Hunt, 13 AD3d 1041, 1042). A tenant in common “has the right to take and occupy the whole of the premises and preserve them from waste or injury, so long as he or she does not interfere with the right of [the other tenants] to also occupy the premises” … . “Mere occupancy alone by one of the tenants does not make that tenant liable to the other tenant[s] for use and occupancy absent an agreement to that effect or an ouster” … , both of which are absent here.

Contrary to plaintiffs’ further contention, the court properly determined that defendant was entitled to be reimbursed for payments that he made for property taxes and repairs. It is well settled that a tenant in common is entitled to be reimbursed for the share of the taxes paid by him for the benefit of other tenants in common … . Additionally, a tenant in common is entitled to be reimbursed for money expended in maintaining, repairing and improving the property, if such maintenance, repairs, and improvements were undertaken in good faith and were necessary to protect or preserve the property … . Cooney v Shepard, 2014 NY Slip Op 04589, 4th Dept 6-20-14

 

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Defense Counsel’s Failure to Object to Considerable Testimony About Prior Consistent Statements Made by the Victim Concerning Alleged Sexual Abuse Did Not Constitute Ineffective Assistance of Counsel

The Fourth Department, over a strong two-justice dissent, determined defendant’s motion to set aside the verdict based upon ineffective assistance of counsel was properly denied.   The complainant was allowed to describe prior consistent statements she made about the alleged incidents of sexual abuse. In addition, the People’s expert was allowed to testify about those prior consistent statements.  Defendant’s trial counsel did not object to that testimony and she indicated she had no strategic purpose in failing to object.  The majority determined the prior consistent statements were admissible because they completed a narrative.  The dissent noted that no cases supporting the introduction of prior consistent statements to complete a narrative were found.  In the opinion of the dissenters, the prior consistent statements constituted inadmissible bolstering and defense counsel’s failure to object to them constituted ineffective assistance:

… [O]ur dissenting colleagues conclude that defense counsel was ineffective by failing to object to the testimony of the victim that she reported to her mother at age six that defendant had touched her in a sexual manner; that she reported to her sister at age 14 that defendant had raped her; and that she told a police witness and the grand jury what she told the jury during her testimony. We respectfully disagree with that conclusion. Although the dissent correctly notes that the repetition of prior consistent statements may “give to a jury an exaggerated idea of the probative force of a party’s case” … , here, the victim’s testimony constituted a narrative of events. Indeed, she did not repeat the specific allegations of her testimony, i.e., that defendant had engaged in anal penetration … . In light of defense counsel’s opening statement that the relationship between defendant, the victim and the victim’s mother was such that it could “cause someone to make fake allegations,” the narrative of events was relevant. We also disagree with our dissenting colleagues that defense counsel’s failure to object to the prosecutor’s remarks during summation referencing that testimony constitutes ineffective assistance of counsel. Because the remarks were a fair response to defense counsel’s summation challenging the credibility of the victim and her motivation for making the accusations …, we conclude that the failure of defense counsel to object to those comments does not constitute ineffective assistance of counsel … . People v Gross, 2014 NY Slip Op 04592, 4th Dept 6-20-14

 

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Father’s Parental Rights Should Not Have Been Terminated Pursuant to Social Services Law 384-b Which Is Relevant Solely to Destitute or Dependent Children

The Fourth Department determined father’s parental rights should not have been terminated pursuant to Social Services Law 384-b, which was not applicable:

Social Services Law § 384-b is entitled “Guardianship and custody of destitute or dependent children; commitment by court order; modification of commitment and restoration of parental rights” (emphasis added). A destitute child is defined as a child “who is in a state of want or suffering due to lack of sufficient food, clothing, shelter, or medical or surgical care,” does not fit within the definition of an abused or neglected child and is without any parent or caretaker; “a child who is . . . absent from his or her legal residence without the consent of his or her parent, legal guardian or custodian”; “a child . . . who is without a place of shelter where supervision and care are available;” or “a person who is a former foster care youth under the age of twenty-one who was previously placed in the care and custody of [DSS] . . . and who was discharged from foster care . . . , [and] who has returned to foster care” (§ 371 [3] [a] – [d]). A dependent child is defined as “a child who is in the custody of, or wholly or partly maintained by an authorized agency or an institution, society or other organization of charitable, eleemosynary, correctional, or reformatory character” (§ 371 [7]). It is indisputable that the subject child is neither a destitute nor a dependent child. Social Services Law § 384-b is thus inapplicable to the child and may not be invoked by either the mother or DSS as a means to terminate the father’s parental rights. We therefore reverse the order and grant the father’s motion to dismiss the petition. We note, however, that our determination does not leave the mother without a remedy. She may seek to dispense with the father’s consent to adoption pursuant to Domestic Relations Law § 111 (2) (a) … . Matter of Anastasia I, 2014 NY Slip Op 04657, 4th Dept 6-20-14

 

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Reversible Error to Instruct the Jury On an Affirmative Defense Over Defense Counsel’s Objection

The Fourth Department reversed defendant’s intentional murder conviction because the trial judge, in response to a question from the jury, instructed the jury on the affirmative defense of renunciation over defense counsel’s objection.  The court explained the relevant law:

It is well settled that a court cannot instruct a jury on an affirmative defense where the defendant objects to the instruction … . When a court does so, it impairs a defendant’s “unquestionabl[e] . . . right to chart his [or her] own defense” …; it may “undermine[] the defense chosen by [the] defendant[,] . . . [and] place[] [the] defendant in the midst of contradictory defenses” …; and it indisputably “impose[s] on [the] defendant an affirmative burden of proof he [or she] had not undertaken by his [or her] defense theory” … . The imposition of a burden of proof on a defendant who has not elected to pursue an affirmative defense “constitute[s] an abuse of the affirmative defense in deorgation of [a] defendant’s right to have the State bear the entire burden of proof” … . The 3rd Department has even stated that a court “is without the jurisdiction to, sua sponte, instruct the jury on an affirmative defense or force a defendant to raise such a defense” … .

Where, as here, the defendant has repeatedly advanced only a defense, which carries no burden of proof, “the suggestion that he [or she] had assumed a burden of proof . . . ha[s] the potential to mislead the jury” … . The affirmative defense of renunciation requires a defendant to meet an initial burden of establishing, by a preponderance of the evidence …, that he or she “withdrew from participation in such offense prior to the commission thereof and made a substantial effort to prevent the commission thereof” (Penal Law § 40.10 [1] [emphasis added]). There was no evidence presented at trial that defendant made any effort, let alone a substantial one, to prevent the commission of the murder. The only conclusion the jury could have drawn was that defendant had failed to meet his burden of establishing the affirmative defense. Here…, “[t]he imposition of an affirmative burden of proof over defense objection and the involuntary undermining of the defendant’s chosen defense strategy resulted in serious prejudice that requires reversal”… . People v Brewer, 2014 NY Slip Op 04606, 4th Dept 6-20-14

 

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NYS Department of Environmental Protection (DEC) Has Authority to Address the Pollution of New York Waters by Oil and Gas Producer Operating Across the Border in Pennsylvania/DEC’s Authority Not Demonstrated to Be Preempted by Federal Clean Water Act

The Fourth Department affirmed Supreme Court’s dismissal of a petition brought by an oil and gas producer seeking to prohibit the New York State Department of Environmental Protection (DEC) from enforcing consent orders which concern the pollution of Yeager Brook in the Allegany State Park.  The oil and gas producer is operating across the border in Pennsylvania on land owned by the US Forest Service.  The court held that the DEC has the authority to address the pollution of New York waters and rejected the argument that the DEC’s authority to act was preempted by the Federal Clean Water Act (CWA):

Beginning in 2010, personnel of the New York State Office of Parks, Recreation, and Historic Preservation reported pollution, including turbidity, color change, and suspended sediment, in New York’s Yeager Brook, downstream from and caused by petitioner’s operations in Pennsylvania, in contravention of New York’s water quality standards. Subsequently, the New York State Department of Environmental Conservation (DEC) entered into two consent orders with petitioner concerning the aforementioned pollution. Because of alleged continued and ongoing violations, the DEC commenced an administrative proceeding in New York seeking to enforce the consent orders and the penalties for the violations thereof. Petitioner commenced the instant proceeding contending, inter alia, that the DEC is acting in excess of its jurisdiction because the federal Clean Water Act ([CWA] 33 USC § 1251 et seq.) preempts the application of an affected state’s laws and regulations to an out-of-state point source … .

As the party seeking a writ of prohibition, petitioner bears a “heavy burden” of establishing a “clear legal right to relief or that prohibition would provide a more complete and efficacious remedy than the administrative proceeding and resulting judicial review” … . We conclude that respondents in support of their motion to dismiss established as a matter of law that petitioner could not meet that burden, and Supreme Court therefore properly granted the motion. The DEC had the statutory authority and jurisdiction to enter into the consent orders at issue and to commence the administrative proceeding to enforce those orders (see ECL 17-0303 [2], [4] [a], [b]; [5] [a]; see also ECL 17-0105 [1]; ECL 17-0501). Petitioner has failed to establish in this proceeding that the DEC’s exercise of such authority and jurisdiction is clearly preempted by the CWA, inasmuch as it has not shown that enforcement of the consent orders would “stand[] as an obstacle to the full implementation of the CWA” … . Moreover, the preemptive effect of the CWA “should be determined, in the first instance, through the administrative process”… . “[E]ven as to a clearly ultra vires act, prohibition does not lie against an administrative agency if another avenue of judicial review is available, absent a demonstration of irreparable injury to the applicant if [it] is relegated to such other course” … . No such irreparable injury has been demonstrated here.  Matter of US Energy Dev Corp v NYS Department of Environmental Protection, 2014 NY Slip Op 04591, 4th Dept 6-20-14

 

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Termination Shocks One’s Sense of Fairness

The Fourth Department determined the termination of a city employee shocked one’s sense of fairness.  The court explained the relevant criteria:

“[A] result is shocking to one’s sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally” … . “Where, as here, there is no grave moral turpitude’ and no grave injury to the agency involved or to the public weal,’ courts may ameliorate harsh impositions of sanctions by administrative agencies . . . in order to accomplish what a sense of justice would dictate’ ” … . Matter of Harwood v Addison, 2014 NY Slip Op 04660, 4th Dept 6-20=14

 

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