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ALTHOUGH THE SANITARY CODE DID NOT REQUIRE DEFENDANT SUMMER CAMP TO HAVE A LIFEGUARD, THE CODE DID REQUIRE THE CAMP TO OFFER SOME SUPERVISION OF PERSONS USING THE SWIMMING POOL; THEREFORE THE SUMMER CAMP OWED PLAINTIFF’S DECEDENT, WHO SUFFERED A MEDICAL EMERGENCY IN THE POOL, A DUTY OF CARE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendant summer-camp-owners’ motion to dismiss the complaint in this swimming-pool-incident case should not have been granted. Plaintiff’s decedent suffered some sort of “medical emergency” in defendants’ swimming pool. Supreme Court dismissed the complaint, finding that the Sanitary Code did not require the camp to have a lifeguard and therefore defendants owed no duty to the plaintiff’s decedent. The Third Department held that, although the Sanitary Code did not require a lifeguard, it did require some level of supervision of persons using the pool:

While the CPR [lifeguard] requirement is specifically exempted for temporary residences [like defendants’ summer camp], the aquatic supervisor for a supervision level III [defendants had chosen to offer supervision level III] at a temporary residence must still possess the other enumerated qualifications (see 10 NYCRR 6-1.31 [c]). To find otherwise would render meaningless 10 NYCRR 6-1.23 (a) (3), which provides that if supervision level III is chosen then the temporary residence must adhere to the supervision level III requirements … . While it is true that 10 NYCRR 6-1.23 (a) (1) (i) exempts CPR certified staff [lifeguards] from a temporary residence that selects supervision level III, it plainly does not exempt these facilities from providing any supervision. As such, we find that Supreme Court erred in determining that defendants did not owe any duty to decedent and granting defendants summary judgment on this basis. Matter of Tamrazyan v Solway Props. LLC, 2024 NY Slip Op 00960, Third Dept 2-22-24

Practice Point: Here the duty owed by defendant summer camp to persons using the swimmer pool was spelled out in the Sanitary Code. Although the defendant summer camp, pursuant to the Code, was not required to provide a lifeguard, it was required to offer some supervision of persons using the swimming pool. Therefore the complaint should not have been dismissed on the ground that defendant did not owe a duty to plaintiff’s decedent, who suffered a medical emergency in the pool.

 

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PETITIONERS’ MINOR CHILD’S NAME CHANGE AND SEX-DESIGNATION CHANGE COURT RECORDS SHOULD HAVE BEEN PERMANENTLY SEALED PURSUANT TO THE CIVIL RIGHTS LAW (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Garry, reversing Supreme Court, determined the records of petitioners’ minor child’s name change and sex-designation change should be permanently sealed pursuant to the Civil Rights Law:

Endeavoring to remove barriers, expand protections and simplify the subject process for transgender and nonbinary New Yorkers … , the Gender Recognition Act expressly authorizes individuals to simultaneously petition for a change in sex designation and change of name (see Civil Rights Law § 67 [3]). Notwithstanding the different sealing standards articulated within the subject articles, both provisions expressly recognize an applicant’s transgender status as a ground for sealing the records … . The provisions promote the sealing of name change applications by transgender applicants — on the court’s own initiative, even where such relief is not requested.

… [T]his is for good reason. Despite some progress in our recent past, it remains sadly true, as evidenced by nearly every memorandum in support of the Act, and amply illustrated by the amici in this case, that risk to one’s safety is always present upon public disclosure of one’s status as transgender or otherwise gender nonconforming … . The Legislature recognized that disclosure of such status subjects individuals to the risk of “hate crimes, public ridicule, and random acts of discrimination” … . Courts have also observed this unfortunate reality … . There is no doubt that violence and discrimination against transgender and nonbinary individuals continue to permeate our society at alarming rates … . Matter of Cody VV. (Brandi VV.), 2024 NY Slip Op 00961, Third Dept 2-22-24

Practice Point: Court records reflecting a sex-designation change and a name change should, in most cases, be permanently sealed pursuant to the Civil Rights Law.

 

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THE DENIAL OF RELIGIOUS EXEMPTIONS TO THE COVID VACCINE MANDATE WAS NOT ARBITRARY AND CAPRICIOUS (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Lynch, over a dissent, determined that the respondent NYS Unified Court System did not act arbitrarily and capriciously when it denied the petitioners’ (29 nonjudicial employees’) requests for religious exemptions from the COVID vaccine mandate. The Appellate Division, disagreeing with Supreme Court, held it was appropriate to deny exemptions based upon the employees’ acknowledging they have taken medication which was tested using fetal cells but now claim the testing of the COVID vaccine using fetal cells violated their religious beliefs:

Supreme Court found that respondents irrationally adopted an “all-or-nothing” approach by concluding that these petitioners could not have rejected the vaccine on religious grounds, without also rejecting the use or contemplated use of other medications or vaccinations developed using the same fetal cell lines. Supreme Court reasoned that it would not be inconsistent for an applicant to continue and/or consider taking other medications “critical to their lives or well-being, such as thyroid medication or hydroxychloroquine.” We disagree with Supreme Court’s thesis. The very purpose of the vaccine mandate was to protect and preserve the public health by “[s]temming the spread of COVID-19[, which] is . . . a compelling interest” … . From our perspective, the Committee could and did rationally conclude that an applicant’s continued and/or contemplated use of other medications or vaccinations tested on fetal cell lines — including the current version of medications originating before fetal cell lines were developed, but now tested utilizing fetal cell lines — while refusing to take the COVID-19 vaccination on that very basis, reflected an inconsistency undermining the sincerity of that applicant’s religious beliefs. Matter of Ventresca-Cohen v DiFiore, 2024 NY Slip Op 00664, Third Dept 2-8-24

Practice Point: The inquiry here was whether the request for exemption from the COVID vaccine mandate was based upon sincerely held religious belief. The fact that petitioners had taken other medication tested with fetal cells indicated the “fetal-cell-testing” objection to the COVID vaccine was not based upon a sincerely held religious belief.

 

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RE-READING THE ORIGINAL JURY INSTRUCTION DID NOT ADDRESS THE CONFUSION EXPRESSED IN THE NOTE FROM THE JURY; IN ADDITION, THE JUDGE FAILED TO MAKE THE INITIAL DETERMINATION WHETHER A WITNESS WAS QUALIFIED TO OFFER EXPERT OPINION EVIDENCE; CONVICTION REVERSED (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction, over a dissent, determined the judge’s response to a jury note was inadequate and the judge did not make the required initial determination that a witness was qualified to offer expert-opinion evidence on the child sexual abuse accommodation syndrome (CSAAS). The jury wanted to know whether a guilty verdict required that the three alleged acts of sexual abuse take place within the three-month period described in the indictment. The answer was “es,” but the judge merely re-read the original charge about which the jury was confused. With respect to the CSAAS witness, the judge left it up to the jury to decide whether she was qualified as an expert:

… [T]he jury had already been provided with a complete written copy of the court’s original instructions for its reference during deliberations. Under these circumstances, County Court’s response to the jury’s inquiry was not meaningful, as it did nothing to clarify the very specific point on which the jury was confused. “[I]n our view, this is one of those rare cases where interest of justice review is warranted. Where the court fails to give information requested upon a vital point no appellate court may disregard the error” … . * * *

Although “[t]he court is not required to explicitly declare a witness an expert before permitting [expert] testimony” … , “the trial court is vested with the initial responsibility of evaluating whether an expert possesses the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” … . Here, County Court abdicated its responsibility to make the initial determination as to whether [the witness] qualified as an expert. People v Goff, 2024 NY Slip Op 00656, Third Dept 2-8-24

Practice Point: A response to a jury note must clarify the confusion expressed in the note. Here, re-reading the original instruction was not sufficient.

Practice Point: Although a judge is not required to explicitly declare a witness an expert, the judge must make the initial determination whether the witness is qualified to offer reliable testimony.

 

THE 10-DAY PERIOD DURING WHICH PETITIONER POLICE OFFICER MUST APPLY FOR DISABILITY BENEFITS STARTED TO RUN WHEN HE LEARNED HE HAD SUFFERED PERMANENT LUNG DAMAGE, NOT WHEN HE FIRST CONTRACTED COVID; PETITIONER’S APPLICATION FOR DISABILITY BENEFITS SHOULD NOT HAVE BEEN DENIED AS UNTIMELY (THIRD DEPT). ​

The Third Department, reversing Sullivan County’s denial of disability benefits for petitioner police officer (Ramos), determined the time when petitioner learned he had permanent lung damage (September 9, 2021), not the time when he contracted COVID (August 9, 2021), was the operative date for timely application for General Municipal Law 207-c disability benefits:

Code of the County of Sullivan § 70-7 requires, among other things, applications for benefits under General Municipal Law § 207-c to be made “within 10 days from the date of the incident alleged to have given rise to the claim of disability or illness, or from the time such condition is discovered, whichever date is later. * * *

… [I]t was improper for the Director to use August 9, 2021 as the incident date that commenced the 10-day period within which Ramos was required to file his application for benefits. Ramos’ application clearly stated that he was informed on September 9, 2021 about his lung damage stemming from his contraction of COVID-19, and it was on this date that Ramos first discovered the disability (i.e., possible lung damage) that gave rise to his claim and application for benefits. Ramos’ September 17, 2021 application was made within 10 days of September 9, 2021 … . Matter of Sullivan County Patrolmen’s Benevolent Assn., Inc. v County of Sullivan, 2024 NY Slip Op 00481, Third Dept 2-1-24

Practice Point: Any time period during which a police officer must apply for disability benefits starts to run when the officer first learns of his permanent disability, not when the officer first became ill.

 

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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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