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NO EFFORT WAS MADE TO DETERMINE WHY PETITIONER’S WITNESS WOULD NOT TESTIFY, DETERMINATION ANNULLED.

The Third Department annulled the determination because no effort was made to determine why petitioner's cellmate refused to testify at the hearing:

Petitioner contends, among other things, that he was improperly denied the right to have his cellmate, who allegedly overheard the correction officer threaten him, testify at the hearing. Petitioner requested the cellmate as a witness at the hearing. A correction officer approached the cellmate about testifying, but he apparently refused and would neither sign a refusal form nor state the reason for his refusal. It does not appear that the Hearing Officer communicated directly with the cellmate, but rather related this information to petitioner based upon the contents of the refusal form. Notably, the correction officer who completed the refusal form did not testify at the hearing.

This Court has acknowledged that “[a] deprivation of the inmate's right to present witnesses will be found when there has been no inquiry at all into the reason for the witness's refusal, without regard to whether the inmate previously agreed to testify” … . No such inquiry was made by the Hearing Officer here, and respondent has essentially conceded this much. Thus, while respondent maintains that this is a regulatory violation for which remittal is appropriate, we find that the circumstances presented give rise to a constitutional violation for which expungement is the proper remedy … . Matter of Tevault v Prack, 2016 NY Slip Op 01533, 3rd Dept 3-3-16

DISCIPLINARY HEARINGS (INMATES) (NO EFFORT MADE TO DETERMINED WHY PETITIONER'S WITNESS WOULD NOT TESTIFY, DETERMINATION ANNULLED)

HEARING OFFICER FAILED TO CONSIDER MEDICAL EVIDENCE SUPPORTING PETITIONER’S CLAIM HE WAS UNABLE TO PROVIDE A URINE SAMPLE, DETERMINATION EXPUNGED.

The Third Department expunged petitioner's disciplinary determination finding that the hearing officer improperly failed to consider medical evidence demonstrating petitioner was unable to provide a urine sample, and did not refuse to provide a sample:

[Petitioner] informed the Hearing Officer of his medical condition during the hearing and also provided medical documentation establishing that he had problems providing urine specimens in the past due to this condition. The Hearing Officer downplayed the significance of petitioner's medical condition and did not consider the medical documentation submitted even though it was sent prior to the conclusion of the hearing. The only evidence that the Hearing Officer considered was the misbehavior report and the request for urinalysis form. The request for urinalysis form indicated that petitioner did not willfully refuse to submit the specimen, but also stated that petitioner did not claim to be unable to submit the specimen in the presence of others. Given this inconsistency in the request for urinalysis form, the absence of any testimony concerning the administration of the urinalysis test or petitioner's medical condition and the Hearing Officer's failure to consider the medical documentation submitted, we find that the determination at issue is not supported by substantial evidence … . Matter of Katsanos v Prack, 2016 NY Slip Op 01531, 3rd Dept 3-3-16

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER FAILED TO CONSIDER MEDICAL EVIDENCE SUPPORTING PETITIONER'S DEFENSE, DETERMINATION EXPUNGED)

PEOPLE DEMONSTRATED, IN A RODRIGUEZ HEARING, THE IDENTIFICATION OF DEFENDANT WAS CONFIRMATORY; WADE HEARING NOT NECESSARY.

The Third Department determined the evidence presented at the Rodriguez hearing demonstrated the confidential informant's (CI's) identification of the defendant was confirmatory (i.e., based upon prior acquaintance with the defendant) and, therefore, a Wade hearing to determine the validity of the identification was not necessary. The court also noted that a two-hour discrepancy between when the drug sale took place as alleged in the indictment, and the testimony about the time of the sale at trial, did not deprive the defendant of the ability to defend against the allegations. With respect to the sufficiency of the identification of the defendant, the court wrote:

 

… “[A] Wade hearing is not required when the witness is so familiar with the defendant that there is little or no risk that police suggestion could lead to a misidentification” … . Where, as here, the People assert that the pretrial identification was merely confirmatory, the People bear the burden of “prov[ing] the witness's sufficient familiarity with the defendant at a Rodriguez hearing” … . “Although the People are not obligated to call the identifying witness at [the] Rodriguez hearing” … , they nonetheless must come forward with “sufficient details of the extent and degree of the protagonists' prior relationship” with one another … . Relevant factors to be considered in this regard include “the number of times the witness saw the defendant prior to the crime, the duration and nature of those encounters, time periods and setting of the viewings, time between the last viewing and the crime, and whether the two individuals had any conversations” … . People v Smith, 2016 NY Slip Op 01521, 3rd Dept 3-3-16

CRIMINAL LAW (IDENTIFICATION WAS CONFIRMATORY, WADE HEARING NOT NECESSARY)/CRIMINAL LAW (TWO-HOUR DISCREPANCY RE: TIME OF DRUG SALE DID NOT DEPRIVE DEFENDANT OF ABILITY TO DEFEND)/IDENTIFICATION (IDENTIFICATION WAS CONFIRMATORY, WADE HEARING NOT NECESSARY)/RODRIGUEZ HEARING (IDENTIFICATION WAS CONFIRMATORY, WADE HEARING NOT NECESSARY)/WADE HEARING (IDENTIFICATION WAS CONFIRMATORY, WADE HEARING NOT NECESSARY)

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NON-SECURE JUVENILE DETENTION FACILITY DID NOT OWE A DUTY OF CARE TO PLAINTIFF WHO WAS STRUCK BY A CAR DRIVEN BY A FORMER RESIDENT OF THE FACILITY.

The Third Department determined the complaint against defendant non-secure detention facility for juveniles was properly dismissed. Weeks after the juvenile had left and been discharged from the detention facility, the juvenile was in a high-speed police car-chase and crashed into plaintiff’s car.  The Third Department concluded that the detention facility did not owe a duty of care to the plaintiff, did not have a duty to supervise the juvenile because the juvenile was not in defendant’s custody, and, from the standpoint of the detention facility, the juvenile’s actions were not foreseeable:

 

Defendant’s nonsecure residential treatment center is located on an open campus without gates or bars, and residents are not locked in. Here, the resident was attending an educational program when he chose to leave. One of defendant’s staff members followed him and tried unsuccessfully to persuade him to return. The staff member did not attempt to physically prevent the resident from leaving, pursuant to defendant’s policy that — under the statutory mandate against physical restrictions — permits such intervention only when a resident’s behavior is dangerous to the resident or others. After the resident departed, defendant notified DSS and the police and discharged him when directed to do so by DSS a week later. Plaintiff’s argument that defendant should have imposed greater supervision or restraints to prevent the resident from leaving disregards the distinction between secure and nonsecure detention facilities and, more fundamentally, disregards the fact that defendant did not make the placement decision. …

The duty owed by a school to prevent foreseeable injuries caused by negligent supervision of its students arises “from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians” … . Because this duty arises from the school’s physical custody of its students, it ceases when a student leaves the premises and the student’s parent or legal custodian is free to resume control … . Here, assuming without deciding that defendant’s residential treatment center can be analogized to a school for this purpose, the collision that injured plaintiff occurred almost a month after the resident left defendant’s physical premises, and three weeks after defendant discharged him from its care, upon the direction of the resident’s legal custodian. Any duty that may have existed while the resident was in its physical custody had long since terminated … . Mayorga v Berkshire Farm Ctr. & Servs. for Youth, 2016 NY Slip Op 01375, 3rd Dept 2-25-16

NEGLIGENCE (NON-SECURE JUVENILE DETENTION FACILITY DID NOT OWE A DUTY OF CARE TO PLAINTIFF STRUCK BY A CAR DRIVEN BY A FORMER RESIDENT OF THE FACILITY)/DUTY OF CARE (NON-SECURE JUVENILE DETENTION FACILITY DID NOT OWE A DUTY OF CARE TO PLAINTIFF STRUCK BY A CAR DRIVEN BY A FORMER RESIDENT OF THE FACILITY)/NEGLIGENT SUPERVISION (DUTY TO SUPERVISE A RESIDENT OF A NON-SECURE JUVENILE DETENTION FACILITY CEASES WHEN CUSTODY CEASES)

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MINOR INACCURACIES WILL NOT PREVENT CHARACTERIZATION OF AN ARTICLE ABOUT A JUDICIAL PROCEEDING AS FAIR AND TRUE.

The Third Department determined plaintiff’s libel complaint was properly dismissed. The defendant newspaper published an article about plaintiff’s conviction in a mortgage fraud prosecution which was based upon a press release from the Department of Justice (DOJ). Civil Rights Law 74 prohibits a civil action against the publisher of a fair and true report of a judicial proceeding. The Third Department explained that minor inaccuracies will not prevent the characterization of an article as fair and true:

 

Civil Rights Law § 74 provides, in relevant part, that “[a] civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding” and, as such, “cloaks those publishing fair and true reports of judicial proceedings with immunity from civil liability” … . “[A]n article may be characterized as ‘fair and true’ if it is substantially accurate” … . Moreover, “[a] fair and true report admits of some liberality; the exact words of every proceeding need not be given if the substance be substantially stated” … and “there is ‘no requirement that a publication report the plaintiff’s side of the controversy'” … . Minor inaccuracies are “‘not serious enough to remove [a party’s] reportage from the protection of Civil Rights Law § 74′” … .

In light of the foregoing standard, we agree with Supreme Court that defendants’ published statements were a fair and true representation of the DOJ press release, thus falling within the statutory privilege afforded by Civil Rights Law § 74. Although defendants used language that differed slightly from the DOJ press release in their article, given plaintiff’s criminal charges and convictions detailed in the press release, the language used “does not suggest more serious conduct than that actually suggested in the official proceeding” … . A liberal reading of defendants’ statements in the context of the article demonstrates that the statements are substantially accurate and, thus, a fair and true report of the DOJ press release … . Bouchard v Daily Gazette Co., 2016 NY Slip Op 01364, 3rd Dept 2-25-16

 

DEFAMATION (MINOR INACCURACIES WILL NOT PREVENT CHARACTERIZATION OF AN ARTICLE ABOUT A JUDICIAL PROCEEDING AS FAIR AND TRUE)/LIBEL (MINOR INACCURACIES WILL NOT PREVENT CHARACTERIZATION OF AN ARTICLE ABOUT A JUDICIAL PROCEEDING AS FAIR AND TRUE)/CIVIL RIGHTS LAW  (LIBEL, MINOR INACCURACIES WILL NOT PREVENT CHARACTERIZATION OF AN ARTICLE ABOUT A JUDICIAL PROCEEDING AS FAIR AND TRUE)

GENERAL CONTRACTOR’S FAILURE TO TIMELY NOTIFY INSURER OF UNDERLYING LAWSUIT BY INJURED WORKER ENTITLED INSURER TO DISCLAIM COVERAGE WITHOUT A SHOWING OF PREJUDICE.

The Third Department, reversing Supreme Court, determined defendant insurer properly disclaimed coverage because the insured, plaintiff general contractor, did not timely notify the insurer of a lawsuit brought by an injured construction worker. Plaintiff was not notified of the suit because it had not appointed a new registered agent for service to replace a defunct agent (not an adequate excuse). The court noted that the “no prejudice” rule applied to the disclaimer, meaning that the insured need not show it was prejudiced by the lack of notice to disclaim:

 

The liability insurance policy at issue here “contain[s] clauses requiring [plaintiff] to provide prompt notice of [both] an occurrence implicating coverage” and any ensuing legal action … . “The insurer’s receipt of such notice is therefore a condition precedent to its liability under the policy,” and a failure to give that notice “may allow an insurer to disclaim its duty to provide coverage” … . At the time the policy here was issued, “[n]o showing of prejudice [was] required” to justify a disclaimer … . The absence of a need to demonstrate prejudice represented “a limited exception to th[e] general rule,” and was justified by a primary “insurer’s need to protect itself from fraud by investigating claims soon after the underlying events; to set reserves; and to take an active, early role in settlement discussions” … .

There is no dispute that plaintiff provided timely notice of the underlying accident, but it is equally clear that plaintiff failed to “[n]otify [defendant] as soon as practicable” that the personal injury action had been commenced. Indeed, plaintiff never gave notice to defendant, although counsel for Speirs did so approximately four months after papers had been served … . That delay, “in the absence of an excuse or mitigating factors, is unreasonable as a matter of law” … . Plaintiff never gave notice because it did not receive the summons and complaint but, inasmuch as its nonreceipt flowed from its failure to appoint a new registered agent for service to replace a defunct one that had been named decades earlier, that explanation was “insufficient as a matter of law” … . Kraemer Bldg. Corp. v Scottsdale Ins. Co., 2016 NY Slip Op 01233, 3rd Dept 2-18-16

 

INSURANCE LAW (FAILURE TO NOTIFY INSURER OF UNDERLYING LAWSUIT ENTITLED INSURER TO DISCLAIM COVERAGE WITHOUT A SHOWING OF PREJUDICE)/DISCLAIMER (INSURANCE, FAILURE TO NOTIFY INSURER OF UNDERLYING LAWSUIT ENTITLED INSURER TO DISCLAIM COVERAGE WITHOUT A SHOWING OF PREJUDICE)

QUESTION OF FACT WHETHER A SPECIAL RELATIONSHIP EXISTED WHICH WOULD SUPPORT THE INSURANCE MALPRACTICE ACTION.

The Third Department, reversing Supreme Court, determined a question of fact had been raised whether a special relationship had developed between plaintiff (the insured) and plaintiff’s insurance agency (defendant Cardell), such that plaintiff could maintain an action for insurance malpractice. Plaintiff put on rodeos and procured insurance from defendant for each event. One policy mistakenly excluded coverage for injuries caused by animals. Another policy didn’t cover the trailers used to transport the rodeo animals. After the rodeo, a few animals escaped as they were about to be loaded onto trailers and injured several people. Both carriers disclaimed coverage. The court explained the law re: a special relationship between an insured and the insurance agency:

 

Although an insurance agent’s common-law duty to his or her clients does not include a continuing duty to advise the clients on appropriate coverage or to recommend additional coverage that the clients did not request …, an agent may be liable for failing to provide appropriate advice in circumstances where there is a special relationship. As pertinent here, such a relationship may arise when “there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on” … . The question whether a special relationship exists between an insurance agent and a client giving rise to a duty to guide and advise the client is a factual determination that “is governed by the particular relationship between the parties and is best determined on a case-by-case basis” … . Here, plaintiff testified that he had purchased his business and personal insurance from defendant for at least six years, that he knew little about insurance and that he relied upon defendant to obtain the appropriate coverage for his rodeo operations. He stated that he had never seen any of the rodeo insurance policies that defendant procured on his behalf, that insurance certificates were the only documents ever provided to him, and that “with [Cardell] being my agent for years, I took that as he was representing me and making sure that I was covered.” As for the failure to include the trailer in the schedule of covered vehicles in plaintiff’s automobile insurance policy — which defendant had also procured — plaintiff stated that he understood that his trailers were covered by his truck insurance and that he was never advised that his trailers should be separately listed as covered vehicles until after the … incident. Finch v Steve Cardell Agency, 2016 NY Slip Op 01231, 3rd Dept 2-18-16

 

NEGLIGENCE (QUESTION OF FACT WHETHER DRIVER OF CITY TRUCK EXERCISED REASONABLE CARE DURING AN EMERGENCY STOP IN THE LEFT LANE OF A HIGHWAY)/MUNICIPAL LAW (QUESTION OF FACT WHETHER DRIVER OF CITY TRUCK EXERCISED REASONABLE CARE DURING AN EMERGENCY STOP IN THE LEFT LANE OF A HIGHWAY)/VEHCILE AND TRAIFFIC LAW (QUESTION OF FACT WHETHER DRIVER OF CITY TRUCK EXERCISED REASONABLE CARE DURING AN EMERGENCY STOP IN THE LEFT LANE OF A HIGHWAY)

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FAMILY COURT APPLIED THE WRONG LAW RE: EXTRAORDINARY CIRCUMSTANCES JUSTIFYING THE AWARD OF CUSTODY TO A NONPARENT; EXTRAORDINARY CIRCUMSTANCES FINDING IS APPEALABLE EVEN THOUGH CUSTODY WAS AWARDED TO MOTHER.

The Third Department reversed Family Court’s finding that extraordinary circumstances justified the award of custody of the child to mother’s cousin. After finding extraordinary circumstances supporting the award of custody to a nonparent had been demonstrated, Family Court went on to find that the best interests of the child required an award of custody to mother. The Third Department noted that a finding of extraordinary circumstances justifying the award of custody to a nonparent is appealable by the mother, even though custody was ultimately awarded to her. In making the “extraordinary circumstances” finding, Family Court had erroneously relied on Domestic Relations Law 72, which applies only to custody awards to grandparents. The court explained the correct applicable law:

 

“[A] parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, disruption of custody over an extended period of time or other extraordinary circumstances” … . “[T]he nonparent bears the heavy burden of proving extraordinary circumstances and the existence of a prior consent order of custody in favor of the nonparent is not sufficient to demonstrate extraordinary circumstances” … . “The extraordinary circumstances analysis must consider ‘the cumulative effect’ of all issues present in a given case” …, including, among others, “the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the . . . parent allowed such custody to continue without trying to assume the primary parental role” … . Since a finding of extraordinary circumstances may have enduring consequences for the parent … , it can be challenged on appeal even if, as here, the parent ultimately obtained custody. Matter of Brown v Comer, 2016 NY Slip Op 01218, 3rd Dept 2-18-16

 

FAMILY LAW (REQUIREMENTS OF CHILD SUPPORT STANDARDS ACT NOT MET BY SUPREME COURT, ORDER MODIFIED)/CHILD SUPPORT STANDARDS ACT (REQUIREMENTS OF CHILD SUPPORT STANDARDS ACT NOT MET BY SUPREME COURT, ORDER MODIFIED)

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A DIAGNOSIS OF ANTISOCIAL PERSONALITY DISORDER WITH NARCISSISTIC AND PARANOID FEATURES IS SUFFICIENT TO SUPPORT CIVIL COMMITMENT IN A SECURE FACILITY PURSUANT TO CPL 330.20.

In finding that respondent suffers from a dangerous mental disorder requiring civil commitment in a secure facility, the Third Department first determined a diagnosis of antisocial personality disorder (ASPD) with narcissistic and paranoid features was sufficient to justify civil commitment pursuant to Criminal Procedure Law 330.20:

… [R]espondent contends, among other things, that the fact that ASPD, alone, is a legally insufficient diagnosis for the purposes of civil confinement pursuant to Mental Hygiene Law article 10 (see Matter of State of New York v Donald DD., 24 NY3d 174, 191 [2014]) merits the conclusion that a diagnosis of ASPD with narcissistic and paranoid features is a legally insufficient diagnosis for the purposes CPL 330.20. The Supreme Court of the United States has established that “[s]tates retain considerable leeway in defining the mental abnormalities and personality disorders that make an individual eligible for [civil] commitment” … . The constitutional guarantee of due process limits that discretion, however, by ensuring that civil commitment is not used as a mechanism to identify and confine the dangerous but “typical [criminal] recidivist[s]” … . With this in mind, proof sufficient to satisfy due process requires proof of a mental condition that causes a person to have serious difficulty in controlling his or her dangerous behavior … .

* * * CPL 330.20 (1) (c) … does not limit the relevant form of dangerousness in the same manner; it only requires a relationship between respondent’s current mental condition and “a physical danger to himself [or herself] or others.”

Further, the diagnosis of ASPD with narcissistic and paranoid features is more specific than a generic ASPD diagnosis. Accordingly, this case does not force us to confront a generic ASPD diagnosis that, as elucidated by expert evidence, “means little more than a deep-seated tendency to commit crimes” … . Therefore, we turn to the expert evidence further clarifying respondent’s ASPD diagnosis and its attendant narcissistic and paranoid features.

Expert testimony established that ASPD causes individuals to have “distortions related to their thoughts [and] behaviors, and . . . a reckless disregard for societal norms.” Individuals are diagnosed with narcissistic features when they engage in “grandiose” thinking, have a “sense of self-importance” and feel “entitled” and possibly omnipotent. Finally, individuals with paranoid features often have feelings that “people are out to get them.” Considering this evidence, we conclude that a mental condition marked by a disregard for societal norms and specifically amplified by an unreasonably inflated sense of self worth and an irrational attribution of hostile intentions to other people sufficiently distinguishes a respondent from the typical recidivist and has a relationship to the requisite dangerousness pursuant to CPL 330.20. Accordingly, we conclude that the diagnosis of ASPD with narcissistic and paranoid features is not legally insufficient to support civil confinement pursuant to CPL 330.20. Matter of John Z. (Commissioner of Mental Health), 2016 NY Slip Op 01234, 3rd Dept 2-18-16

 

CRIMINAL LAW (CIVIL COMMITMENT JUSTIFIED BY DIAGNOSIS OF ANTISOCIAL PERSONALITY DISORDER WITH NARCISSISTIC AND PARANOID FEATURES)/CIVIL COMMITMENT (JUSTIFIED BY DIAGNOSIS OF ANTISOCIAL PERSONALITY DISORDER WITH NARCISSISTIC AND PARANOID FEATURES)/DANGEROUS MENTAL DISORDER (CIVIL COMMITMENT JUSTIFIED BY DIAGNOSIS OF ANTISOCIAL PERSONALITY DISORDER WITH NARCISSISTIC AND PARANOID FEATURES)

PROSECUTOR’S REFUSAL TO PROVIDE A RACE-NEUTRAL REASON FOR STRIKING A JUROR REQUIRED REVERSAL.

The Third Department reversed defendant’s conviction because the prosecutor refused to give a race-neutral reason for striking a nonwhite juror. The prosecutor argued that no reason need be provided for juror no. 2 because juror no. 2 was the first nonwhite juror to be struck. The Third Department noted that the judge asked for race-neutral reasons after defense counsel objected to a pattern of striking four nonwhite jurors. Therefore, the judge had implicitly concluded defense counsel had made a prima facie showing of discrimination. At that point the prosecutor was obligated to provide race-neutral reasons for striking all four nonwhite jurors, including juror no. 2:

 

“The purpose of the Batson rule is to eliminate discrimination, not minimize it” … . Accordingly, because “[t]he exclusion of any [nonwhite prospective jurors] solely because of their race is constitutionally forbidden” … , a defendant asserting a Batson challenge need not show a pattern of discrimination. “Although as part of their prima facie case parties often rely on numbers to show a pattern of strikes against a particular group of jurors, a prima facie case may be made based on the peremptory challenge of a single juror that gives rise to an inference of discrimination” … .

Here, County Court implicitly concluded that defendant had made a prima facie showing of discrimination as to all four of the jurors in question, and the burden then shifted to the People to provide race-neutral explanations for all four — not just three — of the nonwhite prospective jurors against whom the People asserted peremptory challenges. Given the People’s failure to provide — and County Court’s failure to require — such an explanation as to all four prospective jurors, defendant is entitled to a new trial. People v Jones, 2016 NY Slip Op 01212, 3rd Dept 2-18-16

 

CRIMINAL LAW (PROSECUTOR’S REFUSAL TO PROVIDE A RACE-NEUTRAL REASON FOR STRIKING A JUROR REQUIRED REVERSAL)/JURORS (BATSON CHALLENGE, PROSECUTOR’S FAILURE TO PROVIDE A RACE-NEUTRAL REASON REQUIRED REVERSAL)/BATSON CHALLENGE (PROSECUTOR’S REFUSAL TO PROVIDE A RACE-NEUTRAL REASON REQUIRED REVERSAL)

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