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DEFENDANT SHOULD NOT HAVE BEEN DENIED ACCESS TO COMPLAINANT’S MENTAL HEALTH RECORDS AND SHOULD NOT HAVE BEEN PREVENTED FROM CROSS-EXAMINING COMPLAINANT ABOUT HER MENTAL HEALTH; CONVICTION REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction in this sex offense trial, determined defendant should not have been denied access to the complainant’s mental  health records and should not been prevented from cross-examining the complainant about her mental health:

… County Court erred in denying the defendant any access to the complainant’s mental health records … . Further, while the scope of cross-examination generally rests within the trial court’s discretion … , here, the court improvidently exercised its discretion in sustaining the People’s objections to the cross-examination of the complainant with respect to her mental health, particularly since the People’s case primarily rested upon the complainant’s eyewitness testimony … . Moreover, these errors cannot be deemed harmless since the evidence of the defendant’s guilt, without reference to the errors, was not overwhelming, and it cannot be said that there is no reasonable possibility that the jury would have acquitted the defendant had it not been for the errors … . People v Nagle, 2024 NY Slip Op 00329, Second Dept 1-24-24

Practice Point: Defendant’s conviction rested on the testimony of the complainant in this sex offense trial. Defendant should not have been denied access to complainant’s mental health records and should not have been prevented from cross-examining complainant about her mental health. New trial ordered.

 

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​ ALTHOUGH DEFENDANT ENTERED A PLEA OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, THE JUDGE SHOULD NOT HAVE COMMITED DEFENDANT TO SIX MONTHS IN A SECURE FACILITY PURSUANT TO CPL 330.20(6) WITHOUT HOLDING A HEARING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant, who entered a plea of not responsible by reason of mental disease or defect, should not have been committed to a secure facility pursuant to CPL 330.20(6) based on a finding defendant suffers from a dangerous mental condition or is mentally ill without first holding a hearing:

The Supreme Court committed reversible error by issuing a commitment order without conducting an initial hearing pursuant to CPL 330.20(6) … . The court’s obligation to provide the initial hearing pursuant to CPL 330.20(6) is mandatory … . At the initial hearing “the People must prove by a preponderance of the evidence that the defendant either suffers from a dangerous mental disorder or is mentally ill” … . Here, the court improperly made a finding that the defendant suffers from a dangerous mental disorder and committed him to a secure facility for six months without first conducting a mandatory hearing pursuant to CPL 330.20(6) and, thus, deprived the defendant of an opportunity to cross-examine the psychiatric examiners and to present his own testimony … . People v Anthony N., 2024 NY Slip Op 00328, Second Dept 1-24-24

Practice Point: Before a defendant can be committed to a secure facility for six months based upon a finding defendant suffers from a dangerous mental disorder or is mentally ill, the court must conduct a hearing.

 

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DEFENDANT DID NOT SUBMIT PROOF DEMONSTRATING WHEN THE AREA OF THE SLIP AND FALL WAS LAST INSPECTED BEFORE THE FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION; THE VIDEO SUBMITTED BY THE DEFENDANT WAS NOT AUTHENTICATED SO IT SHOULD NOT HAVE BEEN CONSIDERED BY THE COURT (SECOND DEPT). ​

he Second Department, reversing Supreme Court, determined defendant NYC Transit Authority was not entitled to summary judgment dismissing plaintiff’s slip and fall action. Plaintiff alleged she slipped and fell on a wet substance on the floor of defendant’s bus. The evidence of when the floor was last inspected was insufficient to show a lack of constructive notice. And the video submitted by the defendant was inadmissible because it was not authenticated:

The deposition testimony of a dispatcher employed by the defendant merely referred to general pre-trip inspection procedures performed by drivers. The defendant failed to present any evidence regarding “specific cleaning or inspection of the area in question relative to the time when the subject accident occurred” … .

Further, the defendant could not rely upon the video of the bus that it submitted on its motion so as to meet its prima facie burden, as the video was not authenticated, and thus, was not in admissible form … . Harrington v New York City Tr. Auth., 2024 NY Slip Op 00297, Second Dept 1-24-24

Practice Point: To demonstrate a lack of construction notice of the condition in a slip and fall case, the defendant must submit evidence of a specific inspection of the area close in time to the fall. Evidence of general inspection practices is never enough.

Practice Point: In order to submit a video in evidence, it must be authenticated.

 

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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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