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THE PROSECUTOR AND THE JUDGE AGREED DEFENDANT’S ALFORD PLEA WOULD BE PREMISED ON HIS ABILITY TO APPEAL A GRAND-JURY EVIDENCE ISSUE; THE THIRD DEPARTMENT HELD SUCH CONDITIONAL PLEAS ARE GENERALLY NOT ACCEPTED IN NEW YORK; MATTER SENT BACK TO ALLOW DEFENDANT TO MOVE TO WITHDRAW HIS PLEA (THIRD DEPT). ​

The Third Department, sending the matter back for a motion to withdraw the plea (if defendant so chooses), determined County Court’s telling the defendant he could appeal his claim that the grand jury was tainted by inadmissible hearsay was erroneous. Defendant, with the judge’s and prosecutor’s permission, decided to enter an Alford plea based on the understanding he could appeal the grand-jury-evidence issue. But the Third Department held that such conditional pleas are generally not accepted in New York and sent the matter back to allow defendant to withdraw the plea:

“As a rule, a defendant who in open court admits guilt of an offense charged may not later seek review of claims relating to the deprivation of rights that took place before the plea was entered,” such as evidentiary or technical defects. Although defendant, the People and the court all agreed that defendant’s Alford plea would be premised on the preservation of his right to raise these issues on appeal, conditional pleas such as this are generally not accepted in this state … , and the contentions he sought to preserve do not fall within the “extremely limited group of issues [that] survive[ ] the entry of a guilty plea” … . In this respect, we cannot overlook defendant’s assertion that his decision to enter an Alford plea was predicated on County Court granting the People’s motion to preclude his defenses and the corresponding promise that he could challenge that determination on appeal. Accordingly, as defendant is no longer receiving the full extent of his bargain, we remit the matter for County Court to allow defendant to withdraw his plea, should he elect to pursue that course … . People v Hafer, 2024 NY Slip Op 00341, Third Dept 1-25-23

Practice Point: Here defendant’s Alford plea, with the permission of the judge and prosecutor, was conditioned on his being able to appeal a Grand Jury evidence issue. The Third Department held that such conditional pleas are generally not accepted in New York. Defendant was allowed to move to withdraw his plea if he so chooses.

 

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DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS GUILTY PLEA; DEFENDANT WAS TOLD BY DEFENSE COUNSEL THAT DEPORTATION BASED ON THE PLEA WAS POSSIBLE, BUT HE WAS NOT TOLD IT WAS MANDATORY; DEFENDANT DEMONSTRATED HE MAY HAVE DECIDED TO GO TO TRIAL IF HE HAD BEEN AWARE OF THE MANDATORY DEPORTATION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a hearing on his motion to vacate his guilty plea. Although the court and defense counsel warned defendant he may be subject to deportation based upon his guilty plea, defendant was not told by counsel that deportation would be mandatory. Defendant was entitled to a hearing on whether he was afforded effective assistance of counsel:

During the plea colloquy, County Court — after prompting by the People — advised defendant that his plea to a felony “may result in [his] deportation” and, at the time of sentencing, defense counsel acknowledged that defendant “took a plea with the understanding that there might be some [i]mmigration issues.” Similarly, defendant averred in support of his CPL 440.10 motion that defense counsel “said that there was only a possibility that [he] could be deported,” and that neither County Court nor defense counsel ever told him “that [he] would be deported if [he] plead[ed] guilty.” These advisements were erroneous, and, as … defense counsel readily could have ascertained — simply from a reading of the relevant statutes — …defendant’s plea to criminal possession of a controlled substance in the third degree rendered deportation presumptively mandatory … and rendered defendant ineligible for cancellation of an order of removal … . “Where, as here, defense counsel gives incorrect advice regarding the immigration consequences of a guilty plea, that constitutes ineffective assistance under the first prong of Strickland” [466 US 668] … .

With respect to the issue of prejudice, defendant averred that he came to the United States as an asylee in 2000 and, in 2006, his status was adjusted to lawful permanent resident. According to defendant, he elected to plead guilty because counsel advised him “that it was the only way to avoid going to jail for a prolonged period of time, and because [counsel] said [he] would have a chance to prevail if [i]mmigration tried to deport [him].” Had he been aware that “criminal [possession] of a controlled substance in the third degree was a mandatory deportable crime,” defendant averred, “[he] would not have plead[ed] guilty and [would have] insisted on going to trial.” These averments, coupled with the fact that, at the time of his arrest, defendant had been residing in Schenectady County for eight years, was self-employed as a mechanic and, together with his long-term partner, was the parent of triplets, raise “a question of fact as to whether it was reasonably probable that [he] would not have entered a plea of guilty if he had been correctly advised of the deportation consequences of the plea” … . “As defendant sufficiently alleged that counsel provided incorrect information concerning the deportation consequences that would result from [his] guilty plea and that [he] was prejudiced as a result thereof, [he] was entitled to a hearing on . . . [his] CPL 440.10 motion” … . People v Marcellus, 2024 NY Slip Op 00209, Third Dept 1-18-24

Practice Point: Informing a defendant that he may be deported based upon his guilty plea when deportation is mandatory constitutes ineffective assistance of counsel.

 

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PETITIONERS, RESIDENTIAL HEALTH CARE FACILITIES, SOUGHT A WRIT OF MANDAMUS PURSUANT TO CPLR ARTICLE 78 COMPELLING THE NYS DEPARTMENT OF HEALTH TO HEAR RATE APPEALS WHICH CHALLENGE MEDICAID RATE PAYMENTS; BECAUSE THE REQUESTED RELIEF REQUIRED THE EXERCISE OF DISCRETION ON THE PART OF THE DEPARTMENT OF HEALTH, MANDAMUS RELIEF WAS NOT AVAILABLE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Reynolds Fitzgerald, determined that petitioners, 23 residential health care facilities which participate in the federal and state Medicaid programs administered by the NYS Department of Health, did not meet the criteria for mandamus relief pursuant to CPLR Article 78. Petitioner sought to compel the respondent to hear rate appeals which challenge payment rates:

… [I]t is axiomatic that “[a] writ of mandamus is an extraordinary remedy that is available only in limited circumstances. Such remedy will lie only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law. While mandamus to compel is an appropriate remedy to enforce the performance of a ministerial duty, it is well settled that it will not be awarded to compel an act in respect to which a public officer may exercise judgment or discretion” … . “A discretionary act involves the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” … .

To be entitled to such relief, petitioners must establish both a clear legal right to the relief demanded and a corresponding nondiscretionary duty — both are equally necessary for mandamus to lie. Petitioners, relying on Klostermann v Cuomo (61 NY2d 525 [1984]), contend that respondent’s duty to process rate appeals is clear and that respondent is mandated to process the appeals even if the statutory cap prevents respondent from paying the amount due. However, even if we agree with petitioners that respondent has a duty to process appeals, the determination of whether something has taken place within a reasonable time necessarily “involves a discretionary determination” … and thus precludes mandamus relief. Matter of Woodside Manor Nursing Home, Inc. v Zucker, 2024 NY Slip Op 00211, Third Dept 1-18-24

Practice Point: Only ministerial acts can be compelled by a writ of mandamus pursuant to CPLR Article 78. If, as here, the requested relief requires the exercise of discretion, mandamus is not available.

 

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THERE IS NO INDICATION MOTHER WAS INFORMED OF HER COUNSEL’S WITHDRAWAL BEFORE THE PERMANENCY HEARING WAS HELD IN MOTHER’S AND COUNSEL’S ABSENCE; NEGLECT FINDING REVERSED; TWO DISSENTERS ARGUED NO APPEAL LIES FROM A DEFAULT AND MOTHER’S ONLY REMEDY IS A MOTION TO VACATE (THIRD DEPT).

The Third Department, reversing Family Court in this neglect proceeding, determined it was not demonstrated mother was informed of her counsel’s intent to withdraw from representing her before the judge conducted the permanency hearing in counsel’s and mother’s absence and found against her. The two-justice dissent argued no appeal lies from a default and mother’s recourse was to move to vacate the default pursuant of CPLR 5015(a):

It is well established that the mother, as a respondent in a proceeding pursuant to article 10 of the Family Ct Act, had both a constitutional and a statutory right to the assistance of counsel … . Once counsel has been assigned, an attorney of record may withdraw from representation only upon reasonable notice to his or her client … . Such requirement remains true even where a party fails to appear at proceedings or there are allegations of a breakdown in communication between the client and the attorney … .

Here, there is no indication in the record that the mother’s assigned counsel had informed her that she was seeking to withdraw as counsel … . Nor does the record reveal that Family Court made any inquiry into such notice or whether there was good and sufficient cause for such withdrawal … . Matter of Richard TT. (Kara VV.), 2024 NY Slip Op 00215, Third Dept 1-18-24

Practice Point: There is no evidence mother in this neglect proceeding was informed of her counsel’s withdrawal before the court made the neglect finding in her and her counsel’s absence. Matter reversed and remitted.

Practice Point: Two dissenters argued no appeal lies from a default and mother’s only remedy is a motion to vacate the default.

 

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CLAIMANT, A TEACHER IN A CATHOLIC SCHOOL, WAS NOT GIVEN ENOUGH TIME TO CONSULT WITH HER DOCTOR ABOUT WHETHER TO OBEY THE COVID VACCINE MANDATE; THE DENIAL OF UNEMPLOYMENT INSURANCE BENEFITS REVERSED AND THE MATTER REMITTED (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined claimant, a teacher in a Catholic school, was not given enough time to consult with her doctor about the COVID vaccine. Claimant had been informed on or about September 24 she would be terminated if she did not get vaccinated by September 27. Claimant had already had COVID and wanted to discuss whether she had natural immunity with her doctor. The Board deemed her unable to meet an essential function of her job on September 28 and denied Unemployment Insurance benefits:

Although claimant testified that she was unsure about whether to get the vaccine, when she was asked, hypothetically, if she would have gotten the vaccine to keep her job if she had been provided more time, she testified that she would have if she “knew it was safe” and that she “probably” would have, provided she was given an opportunity to consult with her doctor. Even crediting the ALJ’s finding that claimant was notified on September 23, 2021 about the possibility of a vaccine requirement, providing claimant with only four days, two of which were weekend days, to comply with the vaccination mandate was unreasonable. In light of this finding, the Board’s decision that claimant voluntarily left her employment without good cause is not supported by substantial evidence and must be reversed … . Matter of Antonaros (Commissioner of Labor), 2024 NY Slip Op 00217, Third Dept 1-18-24

Practice Point: The claimant had had COVID and wanted to talk to her doctor about natural immunity before deciding to obey the vaccine mandate. Claimant was not given enough time to do so. The denial of Unemployment Insurance benefits was reversed and the matter remitted.

 

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THE NEW JERSEY ORDER AND JUDGMENT SHOULD HAVE BEEN ACCORDED FULL FAITH AND CREDIT IN THE NEW YORK FORECLOSURE ACTION; CRITERIA EXPLAINED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined a New Jersey order and judgment should have been accorded full faith and credit in this foreclosure action:

“A judgment rendered by a court of a sister State is accorded ‘the same credit, validity, and effect, in every other court of the United States, which it had in the state where it was pronounced’ ” … . Our review of the foreign judgment at issue is “limited to determining whether the rendering court had jurisdiction” … . It is undisputed that the New Jersey court had jurisdiction as the defendants appeared in the action and vigorously litigated the matter for years, thus, “inquiry into the merits of the underlying dispute is foreclosed” … and “the merits of [the] judgment of a sister state may not be collaterally attacked” … . Accordingly, a “decree of a sister [s]tate in which [the] parties were subject to personal jurisdiction in that [s]tate is entitled to full faith and credit in the courts of New York” … . Sjogren v Land Assoc., LLC, 2024 NY Slip Op 00009, Third Dept 1-4-24

Practice Point: A New York court’s only function in determining whether a foreign state’s order and judgment should be accorded full faith and credit is assessing whether the foreign court had jurisdiction over the matter.

 

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IF A PATIENT DOES NOT REQUEST A COMBINED HEARING UNDER THE MENTAL HYGIENE LAW ON AN “EMERGENCY” HOSPITAL ADMISSION AND AN “INVOLUNTARY” HOSPITAL ADMISSION, IT IS ERROR TO COMBINE THEM; HOWEVER A PATIENT COULD REQUEST A COMBINED HEARING AND RESPONDENT WAS NOT PREJUDICED BY THE COMBINED HEARING IN THIS CASE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined that the combined hearing pursuant to Mental Hygiene Law sections 9.31 and 9.39 was improper but the patient was not prejudiced by the procedure. The respondent had been released from the hospital, so the appeal was moot. But the Third Department heard the case because the issue was likely to otherwise evade review:

As we understand respondent’s position, she maintains that in the context presented — where a patient is admitted on an emergency basis under Mental Hygiene Law § 9.39 and has demanded a hearing, but whose status is converted to an involuntary admission on medical certification under Mental Hygiene Law § 9.27 prior to the hearing — the ensuing hearing must be limited to a section 9.39 format. Respondent emphasizes that she never requested a hearing under section 9.31 to challenge her involuntary admission. By holding a combined hearing, respondent contends that County Court deprived her of her statutory right to demand a later hearing under section 9.31. * * *

The … question is whether County Court improperly combined the hearings … to conclusively resolve whether respondent was entitled to release that day, assuming the proof fell short under either standard. That question is resolved by the procedures outlined in Mental Hygiene Law §§ 9.31 (a) and 9.39 (a) (2), which vest in the patient — not the court or hospital — the right to request a hearing under each section. In that regard, we agree with respondent that, because she never requested a hearing under section 9.31, the court erred in holding a combined hearing and she retained the right to later request a hearing under section 9.31. On the other hand, had respondent also requested a section 9.31 hearing, we see no reason why a combined hearing could not be held by the court, provided it did so within the applicable statutory deadlines and considered both statutory standards in rendering its decision. Matter of Julie O., 2024 NY Slip Op 00015, Third Dept 1-4-24

Practice Point: Here an “emergency” hospital admission under the Mental Hygiene Law and an “involuntary” admission were pending at the same the time. The admissions have different standards. Therefore, if the patient does not request a combined hearing the court should not hold one. However a patient could request a combined hearing.

Practice Point: Here the patient had been released from the hospital and the appeal of the patient’s admission was moot. However the Third Department considered the case because the issue was likely to evade review.

 

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THE JUDGE PRESIDING OVER THIS TRAFFIC ACCIDENT CASE SHOULD HAVE GRANTED PLAINTIFFS’ RECUSAL MOTION; DEFENSE COUNSEL WAS ACTIVE IN THE JUDGE’S ELECTION CAMPAIGN (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the judge in a traffic accident case should have granted plaintiffs’ recusal motion. Plaintiffs had learned defense counsel was active in the judge’s election campaign and had failed to disclose that information to the parties:

…Justice Muller did not disclose to the parties that defense counsel and his law firm were providing assistance to his judicial campaign. Plaintiffs independently learned of the fundraiser, prompting them to raise the issue and seek the judge’s recusal. The record establishes that the law firm hosted a fundraising event for Justice Muller, that the names of defense counsel and five other attorneys from his firm appeared as supporters on Justice Muller’s campaign website and that defense counsel wrote a favorable opinion letter endorsing Justice Muller’s candidacy which appeared in several news publications throughout the Fourth Judicial District. Furthermore, the JCEC’s [Judicial Campaign Ethics Center’s] … letter clearly states that Justice Muller was “disqualified, subject to remittal, from presiding over matters involving defense counsel and his law firm, including partners and associates, during the course of [his] judicial campaign” … . Although we have no way of knowing Justice Muller’s reasons or intentions, it is undisputed that he did not disclose the JCEC letter to the parties until a month after receiving it, when his campaign results became official, and he was elected to a new term of office. As judges need to avoid even the appearance of impropriety, Justice Muller should have disclosed the JCEC letter upon receipt and recused from the matter as soon as possible (see Rules Governing Jud Conduct [22 NYCRR] §100.3 [E] [1]; Advisory Comm on Jud Ethics Op 03-64 [2003]). Therefore, Justice Muller abused his discretion in denying plaintiffs’ motion for recusal. Minckler v D’Ella, Inc., 2024 NY Slip Op 00017, Third Dept 1-4-24

Practice Point: Here the judge’s failure to disclose to the parties defense counsel’s involvement in the judge’s election campaign required recusal.

 

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PLAINTIFF’S “INADEQUATE FALL-PROTECTION” CAUSES OF ACTION SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE; THEREFORE PLAINTIFF’S AFFIDAVIT FROM A NURSE WAS NOT SUFFICIENT TO OVERCOME DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT WHICH WAS SUPPORTED BY AN AFFIDAVIT FROM A PHYSICIAN (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined the two “inadequate fall-prevention” causes of action in the complaint sounded in medical malpractice, not negligence. Therefore the affidavit from a nurse was not sufficient to support the malpractice causes of action:

Defendants established their prima facie entitlement to summary judgment with respect to the specific allegations sounding in medical malpractice, by and through an expert’s affidavit from a physician opining that decedent was provided with fall prevention interventions throughout her admission that met or exceeded the standard of care, and that, following each fall, decedent was rendered the appropriate medical care and treatment. Moreover, this physician opined that the treatment plan developed for decedent and the care rendered to her were within the standard of care and were not a substantial factor in causing the alleged injuries … . In opposition, plaintiff tendered an expert affidavit from a nurse. However, inasmuch as certain allegations sound in medical malpractice and pertain to medical determinations and what a physician should or should not have done, plaintiff’s nurse rendered opinions that “went beyond her professional and educational experience and cannot be considered competent medical opinion” … . Currie v Oneida Health Sys., Inc., 2023 NY Slip Op 06780, Second Dept 12-28-23

Practice Point: Re: the medical malpractice causes of action, the affidavit from a physician in support of defendants’ motion for summary judgment prevailed over plaintiff’s affidavit from a nurse who, based on her experience and education, could not offer a competent medical opinion.

 

PLAINTIFF DEMONSTRATED DUE DILIGENCE IN ATTEMPTING TO SERVE THE DEFENDANT; PLAINTIFF WAS ENTITLED TO A SECOND EXTENSION OF TIME TO SERVE BY ALTERNATIVE MEANS (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff had exercised due diligence in attempting to serve defendant and was entitled to a second extension of time to serve the defendant:

Supreme Court improvidently exercised its discretion in denying plaintiff a second extension to serve Dr. Hanandeh under CPLR 306-b, as plaintiff established good cause for the late service by proffering evidence of diligent efforts to serve the doctor … . Plaintiff attempted service at an Ohio address obtained through investigation, which turned out to be the home of Dr. Hanandeh’s parents and brother, and also attempted service at Dr. Hanandeh’s last known New York address as provided by his former employer, defendant New York City Health and Hospitals Corporation … .

In addition, plaintiff established entitlement to an extension of time in the interest of justice because, in addition to showing that she made diligent efforts to obtain jurisdiction, she made a showing that Dr. Hanandeh did not incur any prejudice by the delay, and in fact has known of the suit since before plaintiff requested the second extension … .

Under the circumstances presented, plaintiff is also entitled to effectuate service by alternative means, as she made a showing that service on Dr. Hanandeh was impracticable, and that service by email was reasonably calculated to apprise him of this action (CPLR 308 …). Dixon v New York City Health & Hosps. Corp., 2023 NY Slip Op 06592, Third Dept 12-21-23

Practice Point: Because plaintiff demonstrated due diligence in attempting the serve the defendant and the lack of prejudice to the defendant, plaintiff was entitled to a second extension of time to serve and service by alternative means.

 

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