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Question of Fact Whether Vacuuming an HVAC Duct Was a Covered Cleaning Activity Under the Labor Law

The Second Department determined there was a question of fact whether vacuuming an HVAC duct was a covered “cleaning” activity under Labor Law 240(1):

Outside the sphere of commercial window washing (which is covered by Labor Law § 240[1]), the determination of whether an activity may be characterized as “cleaning” under the statute depends on a consideration of four factors. An activity cannot be considered “cleaning” under the statute if it: “(1) is routine, in the sense that it is the type of job that occurs on a daily, [*2]weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; (2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; (3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and (4) in light of the core purpose of Labor Law § 240(1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project” … . Collymore v 1895 WWA, LLC, 2014 NY Slip Op 00320, 2nd Dept 1-22-14

 

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Separate Dispositional Hearing to Determine Best Interests of the Child Appropriate in Mental Illness Parental-Rights Termination Proceeding

The Second Department explained when a separate dispositional hearing is appropriate in a proceeding to terminate parental rights based on mental illness:

Although, in the context of a proceeding pursuant to Social Services Law § 384-b to terminate parental rights based on mental illness, a separate dispositional hearing is not necessarily required in every case … the circumstances of a particular case may warrant a dispositional hearing such that a court’s determination to forgo such a hearing constitutes an improvident exercise of discretion … . Here, the evidence adduced at the fact-finding hearing indicated that the mother consistently continued her treatment, successfully completed parenting classes, and regularly visited the subject child. Furthermore, the record indicated that the subject child, who is now 13 years old, has long opposed adoption and has expressed a desire to maintain a close relationship with her mother. Under these circumstances, the court should have granted the mother’s motion for a dispositional hearing so that the parties could introduce evidence as to which of the dispositional alternatives would be in the best interests of the child… . Matter of Christina LN, 2014 NY Slip Op 00361, 2nd Dept 1-22-14

 

2009 Statute Setting Aside Money for Increased Judicial Compensation Did Not Constitute a Pay Raise for Judges

The Second Department, in a full-fledged opinion by Justice Miller, determined that a 2009 law which set aside $51 million for increases in judicial pay did not increase judicial compensation.  The plaintiffs, judges and justices, argued that the legislation effected a pay raise because it did not reference the need for any future legislation:

To accept the plaintiffs’ argument would require us to conclude that the Legislature intentionally deleted what would have been explicit amendments to the salary schedule set forth in article 7-B of the Judiciary Law so that judicial compensation could be adjusted by utilizing the doctrine of repeal by implication, in conjunction with the implementation of the deleted salary schedules… . Pines v State of New York, 2014 NY Slip Op 00335, 2nd Dept 1-22-14

 

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Analytical Criteria for Stipulation of Settlement Which Is Incorporated But Not Merged

In finding that a stipulation of settlement did not obligate the parties to file joint income tax returns, the Second Department explained the analytical criteria to be applied to a stipulation that is incorporated but not merged into a judgment of divorce:

” A stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation'” … . ” Where such an agreement is clear and unambiguous on its face, the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence'” … . “A court may not write into a contract conditions the parties did not insert or, under the guise of construction, add or excise terms, and it may not construe the language in such a way as would distort the apparent meaning” … . “Moreover, a court cannot reform an agreement to conform to what it thinks is proper, if the parties have not assented to such a reformation”… . Tamburello v Tamburello, 2014 NY Slip Op 00342, 2nd Dept 1-22-14

 

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Motion to Vacate a Conviction Can Be Based Upon a Freestanding Claim of Actual Innocence—All Reliable Evidence, Even If Previously Barred at Trial or After Prior Motions to Vacate, May Be Presented at the Hearing

In a comprehensive opinion by Justice Hinds-Radix, the Second Department determined that a CPL 440 motion to vacate a conviction can be based upon a “freestanding claim of actual innocence.”  The defendant, who had brought several unsuccessful 440 motions, was deemed to have presented sufficient evidence of actual innocence to justify a hearing, in which all reliable evidence previously barred could be presented and considered:

The Due Process Clause in the New York State Constitution provides “greater protection than its federal counterpart as construed by the Supreme Court” … . Since a person who has not committed any crime has a liberty interest in remaining free from punishment, the conviction or incarceration of a guiltless person, which deprives that person of freedom of movement and freedom from punishment and violates elementary fairness, runs afoul of the Due Process Clause of the New York Constitution (see NY Const, art I, § 6… ). Moreover, because punishing an actually innocent person is inherently disproportionate to the acts committed by that person, such punishment also violates the provision of the New York Constitution which prohibits cruel and unusual punishments (see NY Const, art I, § 5…). Thus, we conclude that a freestanding claim of actual innocence may be addressed pursuant to CPL 440.10(1)(h), which provides for vacating a judgment which was obtained in violation of an accused’s constitutional rights… . * * *

At the hearing, all reliable evidence, including evidence not admissible at trial based upon a procedural bar—such as the failure to name certain alibi witnesses in the alibi notice—should be admitted … . If the defendant establishes his actual innocence by clear and convincing evidence, the indictment should be dismissed pursuant to CPL 440.10(4), which authorizes that disposition where appropriate. There is no need to empanel another jury to consider the defendant’s guilt where the trial court has determined, after a hearing, that no juror, acting reasonably, would find the defendant guilty beyond a reasonable doubt.  People v Hamilton, 2014 NY Slip Op 00238, 2nd Dept 1-15-14

 

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Reversible Error to Allow Prosecutor to Question Defendant About His Post-Arrest Silence

The Second Department reversed defendant’s conviction because the prosecutor questioned him about his post-arrest silence:

…[T]he Supreme Court erred when it permitted the prosecutor to question the defendant about his post-arrest silence. Generally, a defendant’s post-arrest silence cannot be used for impeachment purposes … . Further, ” an individual’s pretrial failure to speak when confronted by law enforcement officials is of extremely limited probative worth’ while the risk of prejudice is substantial'” … .

Here, over defense counsel’s objection, the prosecutor was permitted to impeach the defendant’s testimony with his failure to offer an exculpatory version of the events to the police. Although the defendant initially responded to certain questions asked by the police, he then invoked his right to remain silent and offered no information “narrat[ing] the essential facts of his involvement in the crime” … . Accordingly, the Supreme Court erred in allowing the prosecutor to pursue this line of inquiry… . People v Theodore, 2014 Slip Op 00246, 2nd Dept 1-15-14

 

Under the Circumstances, One Incident Involving Corporal Punishment Did Not Demonstrate Neglect

The Second Department affirmed Family Court’s finding that the Administration for Children’s Services (ACS) did not demonstrate father had neglected his 14-year-old child by using excessive corporal punishment.  Father had struck the child with a belt when she refused to give him her cell phone:

Parents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child’s welfare. However, the use of excessive corporal punishment constitutes neglect … . The petitioner has the burden of proving neglect by a preponderance of the evidence … . Although a single incident of excessive corporal punishment may suffice to support a finding of neglect, there are instances where the record will not support such a finding, even where the parent’s use of physical force was inappropriate … . Under the circumstances presented here, the Family Court correctly found that ACS failed to establish by a preponderance of the evidence that the father neglected Anastasia by virtue of his infliction of excessive corporal punishment upon her. ACS failed to establish that the father intended to hurt Anastasia, or that his conduct demonstrated a pattern of excessive corporal punishment … . There was insufficient evidence that Anastasia suffered the requisite impairment of her physical, mental, or emotional well-being to support a finding of neglect … . Given Anastasia’s age, the circumstances under which the altercation occurred, and the isolated nature of the father’s conduct, the court did not err in dismissing the petitions… . Matter of Anastasia L–D, 2014 NY Slip Op 00226, 2nd Dept 1-15-14

 

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No Probable Cause to Search Car Interior After Occupants Were Out of the Car and Patted Down

The Second Department determined the police officer who stopped the car in which defendant was a passenger did not have probable cause to search the interior of the car after the occupants were out of the car and had been patted down.  The court explained the relevant law:

” [A] police officer acting on reasonable suspicion that criminal activity is afoot and on an articulable basis to fear for his [or her] own safety may intrude upon the person or personal effects of the suspect only to the extent that is actually necessary to protect himself [or herself] from harm'” … . Therefore, “absent probable cause, it is unlawful for a police officer to invade the interior of a stopped vehicle once the suspects have been removed and patted down without incident, as any immediate threat to the officers’ safety has consequently been eliminated” … . A “narrow exception” to this rule exists in circumstances where:

” following a lawful stop, facts revealed during a proper inquiry or other information gathered during the course of the encounter lead to the conclusion that a weapon located within the vehicle presents an actual and specific danger to the officer’s safety sufficient to justify further intrusion, notwithstanding the suspect’s inability to gain immediate access to that weapon'”… . People v Baksh, 2014 NY Slip Op 00112, 2nd Dept 1-8-14

 

Defense Counsel Should Have Been Present During Exchange Between Judge and Juror Which Resulted in Disqualification of Juror/Judge Should Have Disclosed Reason for Disqualification

The Second Department determined defense counsel’s absence from an exchange between the judge and a juror, which led to the disqualification of the juror, required reversal:

The juror reported that a third party had told him that the defendant had an “aggressive demeanor,” was a “little wild,” was “somebody you don’t mess around with,” and was someone he “should avoid.” The trial court, in discharging the juror, merely told defense counsel that this juror had lied to the court and, thus, was grossly unqualified to continue serving pursuant to CPL 270.35.

“[A]n inquiry to determine the existence and extent of prejudice affecting the gross disqualification of a sworn juror . . . is inextricably related to defendant’s entitlement to a fair hearing … . Therefore, the unique, indispensable presence of at least the single-minded counsel for the accused’ … is minimally necessary to safeguard that fundamental fairness to defendant” … .

Here, the absence of defense counsel from the in camera interview, coupled with the court’s failure to disclose what the juror said, deprived the defense of the opportunity to inquire as to whether the juror made similar prejudicial statements to any other jurors… . People v Otigho, 2014 NY Slip Op 00128, 2nd Dept 1-8-14

 

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Federal Arbitration Act Applies When Interstate Commerce Involved

The Second Department determined the parties had entered an agreement to arbitrate and, because interstate commerce was involved, federal arbitration law applied.  A New York architectural firm was hired re: the renovation and construction of buildings in Connecticut:

As a threshold matter, the defendants are correct in asserting that this action is governed by the Federal Arbitration Act (hereinafter the FAA) (9 USC § 1 et seq.), which applies to any arbitration agreement evidencing a transaction involving interstate commerce (see 9 USC § 2). * * *

Through the FAA, Congress has declared “a strong federal policy favoring arbitration as an alternative means of dispute resolution” … . In accordance with this policy, doubts as to the arbitrability of a claim are to be resolved in favor of arbitrability … .

On the other hand, arbitration is “a matter of consent, not coercion” … and “a party cannot be required to submit to arbitration any dispute which [it] has not agreed so to submit” … . Under the FAA, the determination as to whether the parties have entered into an agreement to arbitrate is made by applying ordinary state law principles governing the formation of contracts… . Highland HC, LLC v Scott, 2014 NY Slip Op 00089, 2nd Dept 1-8-14

 

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