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THE NEW YORK EARLY MAIL VOTER ACT, EFFECTIVE JANAURY 1, 2024, IS CONSTITUTIONAL (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined the 2923 New York Early Mail Voter Act (Election Law 8-700 et seq) is constitutional:

In 2023, the Legislature passed the New York Early Mail Voter Act (Election Law § 8-700 et seq), permitting all registered voters in New York to apply to “vote early by mail . . . in any election . . . in which the voter is eligible to vote” … . To be considered for processing, an application to vote early by mail must be received by a local Board of Elections (hereinafter BOE) no later than 10 days before the election … . Once received, the BOE confirms that the applicant is “a registered voter of the county or city at the address listed in the application and is eligible to vote in the election or elections for which the application is filed” … . A ballot is then issued to the applicant, along with a postage-paid return envelope, which must be cast and counted by the BOE if received by the close of polls on election day or postmarked by that date and received no later than seven days thereafter … . The Act contains safeguards to protect against fraud, requiring the State BOE to maintain “an electronic early mail ballot tracking system” that records, among other information, whether it “received such voter’s completed early mail ballot” and “counted or rejected” it … . Correspondingly, each local BOE is required to “maintain an early mail ballot tracking system integrated with the [S]tate [BOE’s] system” … . Concomitant with the Act’s passage, the Legislature also amended Election Law § 9-209 to make the canvass procedures set forth in that section — which contain substantial protections to ensure election integrity — applicable to early mail ballots. The express purpose of the Act is to ensure “ease of participation” in elections and to “make New York State a leader in engaging the electorate, meeting voters where they are and opening up greater opportunities for people to have their choices made on the ballot” … . It was signed into law on September 20, 2023 and became effective January 1, 2024.  Stefanik v Hochul, 2024 NY Slip Op 02569, Second Dept 5-9-24

 

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THE EVIDENCE DEFENDANT SHARED A COMMUNITY OF PURPOSE WITH THE SHOOTER WAS LEGALLY INSUFFICIENT; ASSAULT AND FIREARMS CONVICTIONS REVERSED AND INDICTMENT DISMISSED (THIRD DEPT). ​

The Third Department, reversing defendant’s assault and related use and possession of a firearm convictions, determined there was insufficient evidence that defendant shared the intent to shoot the victim. The victim was shot. Defendant drove a car which followed the wounded victim who was then robbed by an occupant of the car:

The trial evidence is insufficient to demonstrate that defendant shared a community of purpose with the unidentified shooter to cause serious physical injury to the victim or that he aided the shooter in doing so … . To begin with, there was no evidence that defendant formed a plan with anyone to assault the victim or had any advance knowledge that the victim was going to be attacked … . Further, although there is proof that defendant was present, he cannot be observed on the surveillance video striking the victim or participating in any way in the altercation that preceded the shooting. In fact, the victim testified that, during the brief struggle, he did not know if defendant was there to help him or harm him and that it was defendant’s friends with whom he was actually fighting. Additionally, as noted above, there was no indication during this brief and seemingly chaotic interaction that defendant was aware that [anyone] had a gun …. This situation is also not akin to cases where an accomplice’s community of purpose with a fellow assailant can be inferred from his or her continued participation in an attack after the other produces a weapon … . … [T]here is evidence that, following the shooting, defendant drove a vehicle in the direction of the victim and stopped it [an assailant’s] command, at which time [the assailant] got out and robbed the victim. However, that alone is insufficient to establish that defendant shared a community of purpose to commit the earlier assault or provided assistance thereto. People v Walker, 2024 NY Slip Op 02346, Third Dept 5-2-24

Practice Point: Defendant’s presence with the assailants when the victim was shot, and defendant’s driving a car following the wounded victim victim and stopping the car to allow an assailant to get out and rob the victim, did not demonstrate defendant shared a community of purpose with the shooter at the time of the shooting.

 

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THE MAJORITY CONCLUDED SUPREME COURT, SUA SPONTE, PROPERLY DISMISSED THE FORECLOSURE ACTION PURSUANT TO 22 NYCRR 202.27 BECAUSE PLAINTIFF FAILED TO COMPLY WITH THE COURT’S DIRECTIVES; THE DISSENT ARGUED DISMISSAL PURSUANT TO SECTION 202.27 WAS IMPROPER AND PLAINTIFF’S MOTION TO VACATE THE DISMISSAL SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, over a substantive dissent, determined Supreme Court, sua sponte, properly dismissed the foreclosure action as abandoned pursuant to 22 NYCRR 202.27 based upon plaintiff’s failure to comply with the court’s directive. The dissent argued the criteria for a section 202.27 dismissal were not met and the motion to vacate the dismissal should have been granted:

… [W]e reject plaintiff’s contention that the action was improperly dismissed. Although the April 2020 order does not specify which statutory or regulatory basis was being relied upon to dismiss the action, this Court has “consistently held” that 22 NYCRR 202.27 authorizes a trial court to dismiss an action as abandoned where a “party fails to timely comply with a court’s directive to progress the case” … . Supreme Court described in its April 2020 order how plaintiff had made no effort to move this action forward since 2016 and how plaintiff was summoned to a status conference in November 2019, where the court directed plaintiff to move for a judgment of foreclosure no later than December 31, 2019. Plaintiff failed, without explanation, to comply with that directive, and Supreme Court was therefore within its discretion to dismiss the action pursuant to 22 NYCRR 202.2 … . U.S. Bank N.A. v Hartquist, 2024 NY Slip Op 02352, Third Dept 5-2-24

Practice Point: The court has the power to, sua sponte, dismiss an action pursuant to 22 NYCRR 202.27 where plaintiff has failed to comply with court directives.

 

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THE RESTRICTIVE COVENANT LIMITED THE USE OF THE PROPERTY TO ONLY “SINGLE-FAMILY RESIDENTIAL PURPOSES;” USE OF THE PROPERTY FOR SHORT-TERM RENTALS THROUGH AIRBNB VIOLATES THE RESTRICTIVE COVENANT (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Powers, determined that a restrictive covenant from a common grantor restricting the use of the property to only “single-family residential purposes” prohibited plaintiff from using the property for short-term rentals through Airbnb. Such use is not “residential:”

… [T]he restrictive covenant limits the permissible use to only “single[-]family residential purposes.” This phrase unambiguously directs that all properties within the subdivision must be used for only residential purposes, and, thus, any and all rentals must be to those who would utilize the property for residential purposes — i.e., as a residence. A residence is the location where an individual “actually lives” and is established by “[t]he act or fact of living in a given place for some time” (Black’s Law Dictionary [11th ed 2019], residence). Although there is no express durational requirement, a stay in a short-term rental property does not meet this definition … . Lodgers in short-term rental properties do not live on the premises but are instead on a short trip and often maintain a residence elsewhere where they “actually live[ ]” (Black’s Law Dictionary [11th ed 2019], residence). This is true even though lodgers may have access to the entirety of the property and may use it in the same manner as a resident, including by cooking meals and sleeping as plaintiff highlighted. West Mtn. Assets LLC v Dobkowski, 2024 NY Slip Op 02355, Third Dept 5-2-24

Practice Point: Here the restrictive covenant limited the use of the property to “residential” use. A “residence” is where someone actually lives, not where someone stays for a short time while on a trip. Therefore the restrictive covenant precluded short-term rentals of the property through Airbnb.

 

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THE ADIRONDACK PARK AGENCY PROPERLY ISSUED PERMITS FOR THE APPLICATION OF AN HERBICIDE IN LAKE GEORGE TO CONTROL AN INVASIVE AQUATIC PLANT (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Fisher, reversing Supreme Court, determined the Adirondack Park Agency (APA) properly issued permits for the application of an herbicide (ProcellaCOR EC) in Lake George to control an invasive aquatic plant called Eurasian watermilfoil (EWM). Supreme Court had granted the Article 78 petition and vacated the permits. Applying black letter administrative law, the Third Department found no basis to overturn the APA’s ruling. The opinion is too fact-specific and detailed to fairly summarize here:

… [W]here an agency’s determination was rendered without a fact-finding hearing, a court’s review is limited to “whether [the] determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” (CPLR 7803 [3] …). In performing such review, “[i]t is well settled that a court cannot substitute its view of the factual merits of a controversy for that of the administrative agency” … . And, when “the judgment of the agency involves factual evaluations in the area of the agency’s expertise and is supported by the record, such judgment must be accorded great weight and judicial deference” … . Indeed, “[i]f a determination is rational it must be sustained even if the court concludes that another result would also have been rational” … .

Although an agency acts arbitrarily and capriciously when it fails to conform to its own regulations, an agency’s interpretation of its own regulations is entitled to deference if that interpretation does not contradict the plain language of the regulations and is not irrational or unreasonable … . Matter of Lake George Assn. v NYS Adirondack Park Agency, 2024 NY Slip Op 02356, Third Dept 5-2-24

Practice Point: Black letter administrative law for the review of an agency’s determination when there was no fact-finding hearing was applied here. The Adirondack Park Agency’s issuance of permits for the application of an herbicide in Lake George was upheld.

 

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EVEN THOUGH PLAINTIFF BICYCLIST ADMITTED ROLLING THROUGH A BIKE-PATH STOP SIGN BEFORE ENTERING THE INTERSECTION, THERE REMAINED QUESTIONS OF FACT ABOUT WHETHER DEFENDANT DRIVER FAILED TO SEE WHAT WAS TO BE SEEN (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant-driver’s motion for summary judgment in this intersection bicycle-car collision case should not have been granted. Although plaintiff-bicyclist acknowledged he did not completely stop at the bike-path stop sign before entering the intersection, there were questions of fact whether defendant driver (Butler) failed to see what was to be seen:

… [P]laintiff’s admission that he came to a “rolling stop” at the stop sign, which amounts to a violation of Vehicle and Traffic Law § 1172 (a) and establishes some degree of fault on his part. Nevertheless, that fact is not dispositive as to whether he was the sole proximate cause of the accident … . To this point, Butler’s testimony suggests that no other vehicles were at the intersection prior to her turning left and that her visibility down the bike path was limited to approximately 20 feet, due in part to a building, trees and bushes obstructing her view. However, our review of the photographs of the intersection contained in the record casts doubt on that account, as a lengthy portion of the bike trail both preceding and after the stop sign located on said trail appears visible from Butler’s vantage point both at the light and after she commenced the left turn. Whether plaintiff should have been visible to Butler is further unresolved by the time frames relative to Butler commencing the turn and the time to impact as well as the varying accounts from plaintiff, Butler and the police report specific as to how far Butler had traveled into the intersection before the collision took place … . Ruberti v Butler, 2024 NY Slip Op 02358, Third Dept 5-2-24

Practice Point: In this intersection bicycle-car collision case, plaintiff-bicyclist’s failure to come to a complete stop at the bike-path stop sign did not establish he was the sole proximate cause of the accident.. There were questions of fact about whether defendant driver failed to see what was there to be seen.

 

CLAIMANT PARTICIPATED IN THE CLEAN UP AFTER THE WORLD TRADE CENTER ATTACK ON 9-11 AND WAS THEREFORE ENTITLED TO WORKERS’ COMPENSATION BENEFITS UNDER ARTICLE 8-A (THIRD DEPT).

The Third Department, reversing (modifying) the Workers’ Compensation Board, determined that some of the World Trade Center clean-up activities of the claimant qualified for benefits pursuant to Workers’ Compensation Law article 8-A:

“Workers’ Compensation Law article 8-A was enacted to remove statutory obstacles to timely claims filing and notice for latent conditions resulting from hazardous exposure for those who worked in rescue, recovery or cleanup operations following the [WTC] September 11th, 2001 attack” … . * * *

… [W]e find, in light of the liberal construction afforded to Workers’ Compensation Law article 8-A, that claimant’s activities of assisting with clearing the area — which notably was located within the statutorily-defined WTC site — in order for the emergency vehicles to access Ground Zero had a tangible connection to the rescue efforts. As such, the Board’s determination that claimant did not participate in the rescue [*3]effort operations to qualify under Workers’ Compensation Law article 8-A is not supported by substantial evidence … . Matter of Liotta v New York State Unified Ct. Sys., 2024 NY Slip Op 02237, Third Dept 4-25-24

Practice Point: Article 8-A of the Worders’ Compensation Law was enacted to cover rescue and other worker’s who responded to the World Trade Center attack on 9-11. Here claimant participated in clean-up activities to keep the area clear for emergency vehicles and was therefore entitled to benefits pursuant to article 8-A.

 

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HERE THE FACILITY REVIEW OFFICER VIEWED THE VIDEO EVIDENCE AND EXPRESSED THE CONCLUSION PETITIONER HAD VIOLATED PRISON RULES BEFORE THE DISCIPLINARY HEARING; THAT SAME OFFICER DECIDED PETITIONER’S ADMINISTRATIVE APPEAL; THAT SCENARIO VIOLATED DUE PROCESS; THE MISBEHAVIOR DETERMINATION WAS ANNULLED (THIRD DEPT).

The Third Department, annulling the determination petitioner had violated prison rules, determined the fact that the facility review officer reviewed petitioner’s misbehavior report and decided the administrative appeal violated due process:

Petitioner contends … he was denied due process because the facility review officer that reviewed his misbehavior report … also decided petitioner’s administrative appeal of the guilty determination as the facility superintendent’s designee … . … Generally, the facility review officer is charged with reviewing each misbehavior report issued and, considering the seriousness of the alleged violations in the report, determining the appropriate tier level classification … . Here, petitioner, both during the hearing and in his administrative appeal, challenged certain actions taken by the facility review officer concerning his review of the misbehavior report. … [I]n reviewing the misbehavior report, the facility review officer viewed the video that was to be presented as evidence of guilt at the hearing. Based upon his viewing of the video, the facility review officer informed petitioner in a memorandum prepared prior to the disciplinary hearing that the video shows “you and your visitor acting in an unacceptable manner in the visit room.” The review officer further states “that the video does not show your penis being exposed as stated in the [misbehavior] report that’s why I downgraded the tiering, . . . it does clearly show your visitor with her right hand between your legs in the groin area and her hand moving in a stroking motion.” In light of the fact that certain challenges to the review officer’s actions were raised by petitioner in his administrative appeal, as well as the facility review officer’s expressed predeterminations regarding petitioner’s guilt, we conclude that his serving as the superintendent’s designee to decide the appeal denied petitioner a fair and impartial administrative appeal. Matter of Williams v Panzarella, 2024 NY Slip Op 02118, Third Dept 4-18-24

Practice Point: In the context of prison disciplinary proceedings, the prisoner’s right to due process of law is violated when the same officer who viewed the evidence and indicated the prisoner was guilty prior to the hearing also decided the prisoner’s administrative appeal.

 

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THE REVOCATION OF PETITIONER’S MEDICAL LICENSE WAS CONFIRMED; TWO DISSENTERS ARGUED THERE WAS INSUFFICIENT EVIDENCE OF THE REQUIRED STANDARD OF CARE, ESPECIALLY AS THE STANDARD APPLIES TO TERMINALLY ILL PATIENTS WHO CONSENT TO AGGRESSIVE TREATMENT (THIRD DEPT). ​

The Third Department, over a two-justice dissent, confirmed the revocation of petitioner’s medical license by the New York State Board for Professional Medical Conduct. The dissenters argued the publications used by respondent’s expert to assess the quality of care provided by petitioner were advisory in nature and did not apply to the aggressive care petitioner offered to terminally ill patients:

From the dissent:

… [T]he findings of the Committee were premised entirely on the erroneous understanding of respondent’s expert, Isamettin Aral, that professional societies establish the accepted standard of care. The record reflects that, on cross-examination, petitioner’s counsel asked Aral the question, “what do you mean when you say standard of care?” In response, Aral testified, “[w]e have accepted guidelines that are published by multiple societies, they include our board, [the] American College of Radiology or [the] American Board of Radiology, [and] national comprehensive cancer networks and these are fairly descriptive, prescriptive guidelines for what a physician should do in the management of cases in very specific areas. When you deviate from those, it is considered to fall short of a standard.”

Although we acknowledge that petitioner pursued what appears to have been aggressive care with the goal of prolonging the lives of patients A-G and was in accordance with their wishes, the record lacks any reference to pervasive standards outlining physician obligations relative to the extraordinary circumstances of terminally ill patients with advanced, late-stage disease. As Aral’s testimony is unsupported by an evidentiary foundation and the Bureau of Professional Medical Conduct offered no other proof, we would find the Committee’s determination to be fatally flawed, fundamentally unfair and affected by an error of law. Matter of Yi v New York State Bd. for Professional Med. Conduct, 2024 NY Slip Op 01955, Third Dept 4-11-24

Practice Point: In an administrative proceeding which resulted in the revocation of petitioner’s medical license, two dissenter’s argued the evidence used by respondent’s expert to determine the required standard of care was only advisory in nature and therefore insufficient, especially as that standard was applied to the consensual aggressive treatment of terminally ill patients.

 

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THE THIRD DEPARTMENT JOINS THE OTHER DEPARTMENTS IN HOLDING THAT A PLAINTIFF NEED NOT MAKE A MOTION TO SET ASIDE THE VERDICT TO PRESERVE AN “AGAINST THE WEIGHT OF THE EVIDENCE” ARGUMENT ON APPEAL (THIRD DEPT). ​

The Third Department, affirming the defense verdict in this medical malpractice case, joined the other appellate division departments in finding that a plaintiff may make a “verdict is against the weight of the evidence” argument on appeal without moving to set aside the verdict on that ground:

… [We now join our colleagues in our sister Departments in concluding that plaintiffs were not required to preserve their weight of the evidence contention by moving to set aside the verdict upon that basis … . A trial court has the authority to order a new trial “on its own initiative” when the verdict is contrary to the weight of the evidence (CPLR 4404 [a]), and this Court’s power “is as broad as that of the trial court” … . Although we believe it remains best practice for a party to challenge a verdict upon this basis before the trial court, in light of its superior opportunity to evaluate the proof and credibility of witnesses … , we nonetheless agree that this Court is fully empowered to “order a new trial where the appellant made no motion for that relief in the trial court” … . To the extent that our prior decisions have suggested otherwise, they should no longer be followed … . Fitzpatrick v Tvetenstrand, 2024 NY Slip Op 01956, Third Dept 4-10-24

Practice Point: In this decision, the Third Department joined the other departments in holding that a plaintiff need not make a motion to set aside the verdict to preserve an “against the weight of the evidence” argument on appeal.

 

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