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THE 2020 AMENDMENTS BROADENING THE REACH OF THE ANTI-SLAPP STATUTE DO NOT APPLY RETROACTIVELY; THEREFORE DEFENDANT’S COUNTERCLAIM BASED UPON THE AMENDED STATUTE SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s counterclaim under the anti-SLAPP statute should have been dismissed. Plaintiff, an attorney, brought this action for libel and intentional infliction of emotional distress based on letters and emails written by defendant which allegedly were intended to damage plaintiff’s reputation in the legal profession. The counterclaim alleged the defendant’s letters and emails were protected by the anti-SLAPP statute in the Civil Rights Law. The Second Department determined the 2020 amendments to that statute, which expanded its reach, do not apply retroactively and defendant, therefore, could not take advantage of those amendments: The counterclaim should have been dismissed:

The first counterclaim alleged that this action was a strategic lawsuit against public participation (hereinafter SLAPP) and sought, among other things, attorney’s fees, costs, and damages pursuant to Civil Rights Law § 70-a. * * *

Contrary to the defendant’s contention, the broadened definition of public petition and participation in the amended section 76-a does not apply retroactively to this action … . The complaint, therefore, is governed by the prior statutory definition of an action involving public petition and participation … . Burton v Porcelain, 2024 NY Slip Op 00291, Second Dept 1-24-24

Practice Point: The 2020 amendments to the anti-SLAPP statute do not apply retroactively. Lawsuits started before the amendments cannot take advantage of the broader reach of the amendments.

 

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DEFENDANTS WERE ENTITLED TO IMMUNITY FROM THIS MEDICAL MALPRACTICE, WRONGFUL DEATH ACTION; PLAINITFF’S DECEDENT WAS ADMITTED TO THE HOSPITAL WITH COVID AND DIED FROM COVID; IMMUNITY IS PROVIDED BY THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice complaint should have been dismissed. Plaintiff’s decedent was admitted to defendants’ hospital with COVID-19 and died from COVID-19. Defendants are entitled to immunity from suit by the Emergency or Disaster Treatment Protection Act (EDTPA):

… [P]laintiff alleges that the decedent was diagnosed with COVID-19 after arriving at Elmhurst Hospital on March 30, 2020, and that he died from COVID-19 on April 9, 2020. The defendants’ submissions, including the complaint and the transcript of the plaintiff’s hearing pursuant to General Municipal Law § 50-h, conclusively established that the defendants were entitled to immunity under the EDTPA (see Public Health Law former § 3082 …). As the complaint makes no allegations that the defendants’ acts or omissions constituted willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm, none of the exceptions to the immunity provisions of EDTPA apply (see Public Health Law former § 3082[2]). Martinez v NYC Health & Hosps. Corp., 2024 NY Slip Op 00186, Second Dept 1-17-24

Practice Point: The defendants in the medical malpractice, wrongful death action are immune from suit pursuant to the Emergency or Disaster Treatment Protection Act (EDTPA). Plaintiff’s decedent was admitted to the hospital with COVID and died from COVID.

 

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THE LABOR LAW DOES NOT PROVIDE A PRIVATE RIGHT OF ACTION ALLOWING A WORKER TO SUE FOR LIQUIDATED DAMAGES, PREJUDGMENT INTEREST, AND ATTORNEY’S FEES BECAUSE THE WORKER WAS PAID BIWEEKLY, NOT WEEKLY AS REQUIRED BY LABOR LAW 191 (SECOND DEPT).

The Second Department, disagreeing with the First Department, over a partial dissent, determined that Labor Law 191, entitled “Frequency of payments,” does not create a private right of action which would allow an employee, who was fully paid, to sue for liquidated damages, prejudgment interest and attorney’s fees because the employee was paid “biweekly,” not “weekly” as required by the statute:

… {The] … legislative history reveals that Labor Law § 198(1-a) was aimed at remedying employers’ failure to pay the amount of wages required by contract or law. There is no reference in the legislative history of Labor Law § 198 to the frequency or timing of wage payments, and nothing to suggest that the statute was meant to address circumstances in which an employer pays full wages pursuant to an agreed-upon, biweekly pay schedule that nevertheless does not conform to the frequency of payments provision of law.

[W]e conclude that Labor Law § 198 does not expressly provide for a private right of action to recover liquidated damages, prejudgment interest, and attorneys’ fees where a manual worker is paid all of his or her wages biweekly, rather than weekly, in violation of Labor Law § 191(1)(a). Grant v Global Aircraft Dispatch, Inc., 2024 NY Slip Op 00183, Second Dept 1-17-24

Practice Point: The Labor Law does not provide a private right of action allowing a worker to sue for liquidated damage, prejudgment interest and attorney’s fees because the worker was paid biweekly, not weekly as required by Labor Law 191.

 

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THE 2020 AMENDMENTS TO THE ANTI-SLAPP STATUTE DO NOT APPLY AS A DEFENSE TO THIS DEFAMATION ACTION BASED UPON DEFENDANTS’ CRITICISM OF PLAINTIFF DOG-GROOMER POSTED ON SOCIAL MEDIA (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, in a matter of first impression in the Second Department, determined the 2020 anti-SLAPP amendments, which expanded the scope of the statute to some defamatory statements made on social media, did not apply retroactively. Therefore the defendants in the defamation action (the Sproules) were not entitled to dismissal of the defamation complaint pursuant to the anti-SLAPP statute. The Sproules had left their puppy at plaintiff VIP’s dog-grooming facility. The dog allegedly had trouble breathing when the Sproules picked him up. They took him to a veterinarian who concluded the dog had water in his lungs. When the dog failed to improve on a ventilator he was put to sleep. Robert Sproule posted a description of the incident on Yelp and Google urging readers to avoid using VIP:

The 2020 amendments to the Civil Rights Law expanded the pool of parties that may raise anti-SLAPP defenses, counterclaims, and cross-claims in their actions, now including journalists, consumer advocates, survivors of sexual abuse, and others. The expansion will naturally lead to an increase in the occasions where anti-SLAPP statutes shall be litigated in the courts. In fact, some upswing is already noted in this developing area of law. * * *

… [T]he Sproules did not establish that this action constitutes an action involving public petition and participation under the anti-SLAPP statute in the form that existed when this action was commenced … . Thus, to decide whether the standards under CPLR 3211(g) and Civil Rights Law § 76-a(2) apply, we must address whether the 2020 amendments to the anti-SLAPP statute apply retroactively or prospectively…. * * *

We hold that the presumption of prospective application has not been overcome here. Indeed, the remedial nature of a statutory amendment, which is generally at play with many amendments, is not a basis, in and of itself, for ignoring the long-standing legal presumption that new enactments be prospective, particularly where there is no expressed provision that a new law be given retroactive effect … . VIP Pet Grooming Studio, Inc. v Sproule, 2024 NY Slip Op 00205, Second Dept 1-17-24

Practice Point: The 2020 amendments to the anti-SLAPP statute, which expanded the scope of the statute to include some critical social media posts, do not apply retroactively. Here defendants in a defamation action based on their social media posts alleging plaintiff dog-groomer’s incompetence and negligence could not take advantage of the 2020 amendments as a defense to the action.

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THE POLICE HAD ENOUGH CAUSE FOR A LEVEL TWO INQUIRY BUT DID NOT HAVE REASONABLE SUSPICION OF CRIMINAL ACTIVITY AT THE TIME DEFENDANT WAS STOPPED, FRISKED AND BROUGHT TO THE GROUND (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the police did not have reasonable suspicion defendant was involved in a crime at the time defendant was stopped, grabbed and brought to the ground. The police were aware there had been 10 robberies in the area where the victims were punched or struck with objects. The arresting officer saw two men, including the defendant, holding onto a third man on a bicycle. When the men saw the police, one man ran and the man on the bicycle left the scene. Defendant began walking. The police stopped defendant with the police car. The officer touched what he thought was a gun in defendant’s pocket and then brought defendant to the ground. At the station the defendant stated the gun belonged to one of the other men and he had prevented a shooting: The gun and the statement should have been suppressed:

Officer Garcia did not have the requisite reasonable suspicion to detain and frisk the defendant. The unusual interaction that Officer Garcia described regarding the man on the bicycle, coupled with reports and “intel” as to robberies in the area, may have provided circumstances giving rise to a founded suspicion that criminal activity was afoot—i.e., level two under De Bour. Thus, Officer Garcia would have had a right of inquiry that permitted him to approach the defendant. However, rather than conducting meaningful inquiry to further his investigation, after the police vehicle stopped in front of the defendant, Officer Garcia exited the vehicle and immediately grabbed the defendant and touched his right rear pants pocket. People v Hernandez, 2024 NY Slip Op 00196, Second Dept 1-17-24

Practice Point: The case illustrates the difference between the police having enough information to approach a defendant on the street to make an inquiry, and having reasonable suspicion of criminal activity. Here the police had sufficient cause to inquire further, but not to stop and frisk.

 

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ALTHOUGH FATHER FILED A PETITION FOR CUSTODY AFTER GRANDMOTHER WAS AWARDED CUSTODY, FATHER’S APPEAL WAS NOT MOOT; THE JUDGE DID NOT MAKE AN ADEQUATE INQUIRY TO ENSURE FATHER’S WAIVER OF COUNSEL WAS KNOWING, VOLUNTARY AND INTELLIGENT (SECOND DEPT). ​

The Second Department, reversing Family Court, determined: (1) the fact that father filed a petition for custody after custody had been awarded to grandmother did not render father’s appeal of the custody-award to grandmother moot; (2) because the judge failed to make a searching inquiry, father did not effectively waive his right to counsel:

“Once a court makes a finding that extraordinary circumstances exist” to conclude that a parent relinquished his or her otherwise superior right to custody as compared to a nonparent, “that issue cannot be revisited in a subsequent proceeding seeking to modify custody and, thus, such a finding may have enduring consequences for the parties” … . In the order appealed from, the Family Court determined that the requisite extraordinary circumstances existed. This appeal is therefore not academic, among other reasons, because the court’s determination in the order appealed from imposes enduring consequences upon the father that will “impact the scope of the pending proceedings” … . …

Family Court failed to conduct a searching inquiry to ensure that the father’s waiver of his right to counsel was made knowingly, voluntarily, and intelligently … . The hearing record demonstrates that the father did not wish to proceed pro se, but felt that he had no other option but to do so … . To the extent the attorney for the child contends that the court was not required to conduct a searching inquiry because the father did not demonstrate that he was entitled to assigned counsel, this contention is without merit. A court’s obligation to ensure the validity of a party’s waiver of his or her right to counsel extends beyond indigent parties … . In any event, the father indicated that he lacked the funds necessary to afford an attorney, and the court failed to inquire into the father’s financial capability to retain counsel … . The court had an independent obligation to conduct such an inquiry and could not rely solely upon information received from the Legal Aid Society of Orange County regarding whether the father qualified for its services … . Matter of Turner v Estate of Laura Katherine Jane Turner, 2024 NY Slip Op 00193, Second Dept 1-17-24

Practice Point: Here father’s appeal of the award of custody to grandmother was not moot, even though father first filed for custody after the award of custody to grandmother.

Practice Point: A sufficient inquiry into whether a party’s waiver of the right to counsel is knowing, voluntary and intelligent must go beyond whether the party is financially entitled to assigned counsel.

 

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THE ARBITRATION AWARD WAS “IRRATIONAL;” THE CORRECTIONS OFFICERS WERE TREATED ONLY ON THE DAY OF THEIR INJURIES, LOST NO WORK AND HAD NO OUT-OF-POCKET EXPENSES; THEY WERE NOT ENTITLED TO MEDICAL BENEFITS PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT (CBA) AND THE GENERAL MUNICIPAL LAW (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the arbitration award which found that the county corrections officers were entitled to medical benefits for work-related injuries pursuant to the collective bargaining agreement (CBA) and the General Municipal Law, was “irrational.” The officers were treated on the day of their injuries, received no further treatment, lost no work, and had no out-of-pocket expenses:

“An award is irrational only where there is no proof whatever to justify the award” … . Here, the union asserted that the County violated the CBA by improperly denying General Municipal Law § 207-c benefits to the claimants, and the parties agreed that the arbitrator would decide whether this [*3]assertion was correct. “General Municipal Law § 207-c(1) entitles corrections officers to certain enumerated benefits, including the payment of salary or wages and the cost of medical treatment and hospital care, where the officer ‘is injured in the performance of his [or her] duties or . . . is taken sick as a result of the performance of his [or her] duties'”… . By definition, an officer seeking benefits under the statute must demonstrate, among other things, that he or she requires payment of salary or wages, or payment for the cost of medical treatment, whether in the form of reimbursement for funds expended or direct payment to an unpaid provider … . Here, the claimants did not seek payment of salary or wages pursuant to the statute, since they were each paid their regular salary or wages for the time spent visiting a medical provider on the date of the occurrence and missed no time thereafter. The claimants also did not seek payment of, or reimbursement for, the cost of the medical treatment they each received on the day of their respective occurrences, conceding that they did not sustain any out-of-pocket medical expenses. The arbitrator’s decision to award the claimants a designation that their injuries or illnesses qualified for statutory benefits was therefore irrational, considering that there was no proof that any such benefits were required … . Matter of County of Nassau v Nassau County Sheriff’s Corr. Officers’ Benevolent Assn., 2024 NY Slip Op 00069, Second Dept 1-11-24

Practice Point: This case is rare example of a judicial finding that an arbitration award was “irrational.”

 

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PURSUANT TO THE ALCOHOLIC BEVERAGE CONTROL LAW THE DEFENDANT BEER IMPORTER IS OBLIGATED TO HONOR THE WHOLESALE DISTRIBUTION CONTRACT ENTERED INTO BY PLAINTIFF AND THE PRIOR BEER IMPORTER (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Chambers, reversing Supreme Court, in a matter of first impression, determined defendant beer importer was obligated, pursuant to Alcoholic Beverage Control Act section 55-c, to honor the wholesale distribution contract entered into by the plaintiff and the prior beer importer:

We are asked on this appeal to determine whether section 55-c of the Alcoholic Beverage Control Law obligates a beer importer, which acquired its importation rights relating to a particular beer brand directly from the manufacturer, to honor a wholesale distribution agreement entered into by the prior importer of the same beer brand. Additionally, we note that this appeal presents a question of first impression.

We conclude that the generous protections afforded to beer wholesalers under Alcoholic Beverage Control Law § 55-c extend to circumstances such as the present one, and obligate an importer to honor a wholesale distribution agreement entered into by the prior importer of the same brand, even where, as here, there is no relationship or privity of contract between the prior importer and the new importer. For the reasons that follow, under the specific language of New York’s law, the defendant importer in this action is a “successor to a brewer” within the meaning of Alcoholic Beverage Control Law § 55-c, and the plaintiff wholesaler has demonstrated as a matter of law that the defendant importer failed to honor, without good cause, the wholesale distribution agreement entered into by the plaintiff and the prior importer. JRC Beverage, Inc. v K.P. Global, Inc., 2024 NY Slip Op 00067, Second Dept 11-11-24

Practice Point: Here the Alcoholic Beverage Control Law obligated the new beer importer to honor a wholesale distribution contract plaintiff entered into with the prior beer importer.

 

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IN THIS SLIP AND FALL CASE, EVIDENCE THE AREA WHERE PLAINTIFF FELL WAS INSPECTED “MORE THAN AN HOUR” BEFORE AND EVIDENCE OTHERS WERE IN THE AREA AT THE TIME OF THE FALL DID NOT ELIMINATE QUESTIONS OF FACT ABOUT DEFENDANT’S CONSTRUCTIVE NOTICE OF THE CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant hospital did not demonstrate it did not have constructive notice of the wet substance on the floor alleged to have cause plaintiff’s slip and fall. Evidence that the corridor in question was inspected “more than an hour” before the slip and fall and evidence others were in the corridor when plaintiff fell did not eliminate questions fact about whether the hospital had constructive notice of the condition:

… [T]he defendant failed to eliminate triable issues of fact as to whether it had constructive notice of the alleged slippery condition. The defendant’s evidence that the corridor was inspected more than an hour before the accident was insufficient to establish that the condition did not exist for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and remedy the condition. The plaintiff’s deposition testimony, submitted by the defendant in support of its motion, established that there were at least three nurses and a doctor present in the corridor at the time of her fall … . Contrary to the defendant’s contention, the plaintiff’s deposition testimony that she did not notice anything on the floor before she fell was insufficient to establish that the condition would not have been discoverable upon a reasonable inspection … . Croake v Flushing Hosp. & Med. Ctr., 2023 NY Slip Op 06723, Second Dept 12-27-23

Practice Point: In a slip and fall, evidence the area of the fall was inspected “more than an hour” before the fall does not demonstrate the defendant did not have constructive notice of the condition.

 

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PLAINTIFF IN THIS TRAFFIC ACCIDENT CASE RAISED QUESTIONS OF FACT WHETHER THE RELEASE WAS SIGNED BY PLAINTIFF UNDER UNFAIR CIRCUMSTANCES; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BASED UPON THE RELEASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff in this traffic accident case had raised questions of fact about when the release signed by plaintiff under unfair circumstances:

… [P]laintiff’s allegations were sufficient to raise questions of fact as to whether the release was signed by the plaintiff under circumstances that indicate unfairness, and whether it was not “fairly and knowingly” made … . The plaintiff averred, among other things, that shortly after the accident, an insurance representative for the defendants called him “repeatedly;” that he had difficulty understanding the defendants’ representative due to a language barrier; that the defendants’ representative, who had him sign the release to obtain money for medical bills, never explained that the document he signed was a release or had the legal effect of the release; and that the plaintiff was not represented by an attorney at the time he signed the release. Moreover, the plaintiff raised questions of fact as to whether there was mutual mistake as to the nature of the injuries sustained by plaintiff from the alleged accident … . Wei Qiang Huang v Llerena-Salazar, 2023 NY Slip Op 06772, Second Dept 12-27-23

Practice Point: Unfair circumstances surrounding the signing of a release, short of fraud, can invalidate it.

 

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