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THE CITY FIREFIGHTERS WHO, AS ESSENTIAL EMPLOYEES, WERE REQUIRED BY EXECUTIVE ORDER TO WORK DURING THE PANDEMIC, SOUGHT TIME-OFF OR MONETARY COMPENSATION EQUIVALENT TO THE TIME-OFF AFFORDED THE NONESSENTIAL CIVILIAN EMPLOYEES WHO WERE SENT HOME DURING THE PANDEMIC PURSUANT TO THE SAME THE EXECUTIVE ORDER; THE THIRD DEPARTMENT DETERMINED ARBITRATION OF THE ISSUE WAS PRECLUDED BY PUBLIC POLICY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the city firefighters’ claim to entitlement to time off from work or monetary compensation equivalent to the time-off afforded the civilian employees ordered to stay home (due to COVID) was prohibited by public policy. The firefighters were deemed essential employees and were required to report to work by Executive Order. The “nonessential” civilian employees were ordered to stay home by the same Executive Order:

… [W]e cannot agree that petitioner breached the CBA [collective bargaining agreement] by responsibly implementing the Governor’s directives. To hold otherwise would create an untenable result — i.e., it would sanction a finding that petitioner breached the CBA based upon its required compliance with state public policy. Based on the very nature of the pandemic, requiring extreme public health measures as implemented through the executive orders, we conclude that arbitration of the resulting impact on respondent’s members is precluded as a matter of public policy. Matter of City of Troy (Troy Uniformed Firefighters Assn., Local 86 IAFF, AFL-CIO), 2022 NY Slip Op 02174, Third Dept 3-31-22

Practice Point: Here is a rare example of the preclusion of the arbitration of an employment issue by public policy. The firefighters were ordered to work during COVID as essential employees. The nonessential civilian employees were ordered to stay home. Public policy prohibited arbitration of the question whether the firefighters were entitled to equivalent time-off or monetary compensation.

 

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PLAINTIFF STATED A CAUSE OF ACTION FOR BREACH OF THE PHYSICIAN-PATIENT PRIVILEGE, A TORT (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff stated a cause of action for breach of the physician-patient privilege (CPLR 4504(a)). Plaintiff was a resident at the State College of Veterinary Medicine at Cornell University. During her residency plaintiff was treated by defendant Witlin, a psychiatrist. In a conversation with a staff psychologist at the college, Witlin said he was “aware of [plaintiff’s] deterioration” and that she “was a mess the last time [he] saw her.” Plaintiff was subsequently denied a second year of residency:

“The elements of a cause of action for breach of physician-patient confidentiality are: (1) the existence of a physician-patient relationship; (2) the physician’s acquisition of information relating to the patient’s treatment or diagnosis; (3) the disclosure of such confidential information to a person not connected with the patient’s medical treatment, in a manner that allows the patient to be identified; (4) lack of consent for that disclosure; and (5) damages” … . …

… [P]laintiff’s claimed damages are not limited to those related to the decision not to reappoint her. The complaint, as amplified by the bill of particulars, alleges that plaintiff suffered mental distress and related emotional harm as a direct result of the disclosure of her confidential medical information. Because a breach of physician-patient confidentiality is actionable as a tort … , plaintiff may recover for emotional harm so long as “the mental injury is a direct, rather than a consequential, result of the breach and . . . the claim possesses some guarantee of genuineness” … . Bonner v Lynott, 2022 NY Slip Op 02175, Third Dept 3-31-22

Practice Point: Here plaintiff stated a cause of action for breach of the patient-physician privilege which sounds in tort and includes damages as an element.

 

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RESPONDENTS’ PARTICIPATION IN THE PORTION OF THE ARBITRATION WHICH DEALT WITH THE USE OF ESCROW FUNDS TO REPAIR CONDOMINIUM SWIMMING POOLS WAIVED ANY CHALLENGE TO THE ARBITRABILITY OF THE ISSUE (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined respondents waived the ability to challenge the arbitrability of damage to swimming pools in this action seeking to use escrow funds for condominium repairs. The swimming pools were not on the “punch list” of items to be repaired using the escrow funds. But respondent Katz participated in the portion of the arbitration which focused on the repair of the pools:

It is well settled that “[a] party who actively participates in arbitration without seeking a stay pursuant to CPLR 7503 (b) waives the right to a judicial determination of the arbitrability of the dispute” … . There is no dispute that Katz participated in the first three arbitration hearings, at the second of which he attempted to submit Fuller’s report to address the issue regarding the swimming pools and, after the rejection of the report, he orally argued his position. The record is devoid of any request for a stay of any kind. Thus, Katz’s participation foreclosed respondents’ attack on the arbitrability of the pool repairs … . Matter of Kohn (Waverly Homes Dev. LLC), 2022 NY Slip Op 02177, Third Dept 3-31-22

​Practice Point: A party’s participation in the arbitration of an issue waives any right to a judicial determination the issue was not arbitrable.

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A JAIL PHONE CALL IN WHICH DEFENDANT SAID HE MIGHT PLEAD GUILTY SHOULD NOT HAVE BEEN ADMITTED BECAUSE ITS PREJUDICIAL EFFECT OUTWEIGHED ANY PROBATIVE VALUE; THE PROSECUTOR’S SUMMATION REFERENCE TO THE PORTION OF THE PHONE CALL IN WHICH DEFENDANT SAID HE NEEDED A “PAID LAWYER” WAS AN IMPROPER USE OF THE RIGHT TO COUNSEL AGAINST THE DEFENDANT; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, determined a jail phone call in which defendant said he might plead guilty was inadmissible. In addition the prosecutor’s comment on summation that defendant said (in that jail phone call) he needed a “paid lawyer” was an improper reference to defendant’s right to counsel:

[Defendant] was deprived of a fair trial based upon the admission of a jail phone call wherein he stated that he might as well “cop out to . . . the five years or whatever.” The People portrayed this evidence as relevant to show defendant’s consciousness of guilt. Even if relevant, evidence of consciousness of guilt is generally considered weak … . That said, defendant’s statement that he contemplated taking a plea had little probative value but had a prejudicial effect on him. In this regard, “[s]ince it is widely assumed that only the guilty would consider entering a guilty plea, the knowledge that defendant wanted to plead guilty would make it difficult for the jury to accept the presumption of innocence and to evaluate the evidence fairly” … .

We also agree with defendant’s argument that he was prejudiced by the prosecutor’s comment on summation that defendant, in the jail phone call, stated that “[h]e need[ed] to get a paid lawyer to see if he can get lesser time.” The prosecutor argued to the jury that this statement went to defendant’s consciousness of guilt. A prosecutor, however, cannot use a defendant’s invocation of his or her constitutional right to counsel against such defendant … . It follows that any commentary to this effect is improper. Accordingly, defendant was prejudiced by the prosecutor’s summation … . People v Roberts, 2022 NY Slip Op 02157, Third Dept 3-31-22

Practice Point: Defendant, in a jail phone call, said he might plead guilty and he needed a “paid lawyer.” The “might plead guilty” statement should not have been admitted because it was highly prejudicial but had little probative value. The prosecutor’s reference in summation to the “need a paid lawyer” statement improperly used defendant’s right to counsel against him. These were deemed reversible errors.

 

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THE CORRECTION LAW DOES NOT REQUIRE AN INMATE RESIDENTIAL TREATMENT FACILITY (RTF) TO PROVIDE SEX OFFENDERS WHO ARE ABOUT TO BE RELEASED WITH REINTEGRATION PROGRAMS IN THE OUTSIDE COMMUNITY, AS OPPOSED TO WITHIN THE PRISON (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined the “residential treatment facility” (RTF) within the Fishkill Correctional Facility complied with the Correction Law. Plaintiffs alleged Fishkill did not provide sufficient opportunities outside the prison facility for reintegrating inmates into the community. Supreme Court agreed. The Third Department held that the Correction Law does not indicate the programs for reintegrating inmates must be offered outside the facility:

A resident in an RTF “may be permitted to leave such facility in accordance with the provisions of [Correction Law § 73]” …. To that end, DOCCS “shall be responsible for securing appropriate education, on-the-job training and employment” for RTF residents (Correction Law § 73 [2]). Furthermore, “[p]rograms directed toward the rehabilitation and total reintegration into the community of persons transferred to a residential treatment facility shall be established” (Correction Law § 73 [3]). That said, nothing in Correction Law § 73 (2) or (3) states specifically where the opportunities provided in a rehabilitative program established by DOCCS or where the education, training or employment to be secured by DOCCS must be located. In other words, there is no statutory mandate providing that DOCCS’s obligations under Correction Law § 73 be outside the confines of Fishkill. Alcantara v Annucci, 2022 NY Slip Op 02163, Third Dept 3-31-22

 

IF A GOVERNMENT AGENCY TO WHICH A FOIL REQUEST HAS BEEN MADE DOES NOT POSSESS ANY RESPONSIVE DOCUMENTS, THE AGENCY MUST PROVIDE A CERTIFICATION TO THAT EFFECT (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined that if the records petitioner sought in his FOIL request do not exist or cannot be found, the respondent must so certify:

… [T]he statute commands that a government entity that does not supply any record in response to a FOIL request “shall certify that it does not have possession of such record or that such record cannot be found after diligent search” (Public Officers Law § 89 [3] [a] … ). Although “[t]he statute does not specify the manner in which an agency must certify that documents cannot be located” … , respondent failed to provide any such certification … . Accordingly, “we remit the matter to Supreme Court for a determination of whether respondent has any other documents in [his] possession which are responsive to petitioner’s FOIL request” … , or, if no responsive records can be found after a diligent search, for respondent to provide a proper certification as required … . Matter of Thomas v Kane, 2022 NY Slip Op 02164, Third Dept 3-31-22

​Practice Point: If a government agency to which a FOIL request has been made does not possess any responsive documents, the statute requires the agency to provide a certification to that effect.

 

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IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, ALTHOUGH FAMILY COURT THREATENED TO FIND RESPONDENT IN DEFAULT WHEN HE DID NOT PROVIDE PROOF HE FAILED TO APPEAR BECAUSE HE WAS HOSPITALIZED, FAMILY COURT DID NOT ULTIMATELY GIVE RESPONDENT A “DEFAULT WARNING;” RESPONDENT AND HIS COUNSEL WERE PRESENT AT THE FACT-FINDING BUT WERE PRECLUDED BY THE COURT FROM PARTICIPATING; RESPONDENT HAS A RIGHT TO BE HEARD ON THE ABANDONMENT ISSUE; REVERSED AND REMITTED (THIRD DEPT).

The Third Department, reversing Family Court, determined respondent father in this termination of parental rights proceeding was not in default and that he was entitled to present a defense. To explain his failure to appear, respondent said he was hospitalized but he did not provide any proof of hospitalization when the court requested it. The court then found respondent to be in default and precluded respondent and his counsel from participating in the termination hearing:

Petitioner and the attorney for the child argue that the appeal must be dismissed because the challenged order was entered upon respondent’s default. We disagree. In its written decision, Family Court stated that it had advised respondent’s counsel at the December 18, 2019 appearance that, if the requested medical documentation was not timely provided, it “would find [respondent] in default” and “the trial would be an [i]nquest.” Our review of the record, however, confirms that no such warning was given. Instead, the court cautioned that if respondent failed to comply, it would “proceed with the proceeding with regard to the termination of his parental rights.” This is not a default warning but notice that the hearing would go forward on January 15, 2020. However frustrating respondent’s noncompliance with the court’s reasonable directive to provide documentation of his hospitalization may have been, the key point here is that respondent and his counsel were in attendance at the fact-finding hearing. We fully appreciate that trial courts are vested with broad authority to maintain the integrity of their calendars. Under the circumstances presented, however, we conclude that Family Court abused its discretion in holding respondent to be in default and precluding any participation at the hearing … . Matter of Makayla NN. (Charles NN.), 2022 NY Slip Op 02165, Third Dept 3-31-22

​Practice Point: Here Family Court never gave a “default warning” to respondent father when he failed to provide proof he did not appear because he was hospitalized. Father, who was present at the fact-finding, should not have been found to be in default and precluded from participating in the termination of parental rights proceeding.

 

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THE USE OF ELECTRONIC LOGGING DEVICES (ELD’S) TO MONITOR THE HOURS AND PLACES OF OPERATION OF COMMERCIAL MOTOR VEHICLES (CMV’S) AND THE INSPECTION OF ELD’S BY LAW ENFORCEMENT PERSONNEL DURING ROADSIDE SAFETY INSPECTIONS CONSTITUTE VALID ADMINSITRATIVE SEARCHES (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McShan (too comprehensive to fairly summarize here), determined the use of electronic logging devices (ELD’s) to monitor the hours and places of operation of commercial motor vehicles (CMV’s), such that the data collected by the ELD’s can be inspected by law enforcement personnel, does not constitute unreasonable search and seizure:

ELDs integrate with a vehicle’s engine and use GPS technology to automatically record the date, time and approximate geographic location of CMVs, as well as the number of engine hours and vehicle mileage (see 49 CFR 395.26 [b]). Drivers are required to manually input identifying information and any changes in their duty status, the categories of which include, among others, on-duty, off-duty and authorized personal use (see 49 CFR 395.24 [b]; 395.26 [b]; 395.28). Upon request, information recorded by ELDs must be made available to law enforcement personnel during roadside safety inspections … .* * *

 … “[O]ne would be hard-pressed to find an industry more pervasively regulated than the trucking industry.” … [W]e … find that commercial trucking is a pervasively regulated industry pursuant to which an administrative search may be justified.

… [T]he regulatory scheme at issue here provides adequate assurances that the inspection of ELDs will be reasonable. …

The ELD rule likewise provides the requisite “meaningful limitation” on the discretion of officials performing the inspection so as to ensure “that the search is limited in scope to that necessary to meet the interest that legitimized the search in the first place” … . Matter of Owner Operator Ind. Drivers Assn., Inc. v New York State Dept. of Transp., 2022 NY Slip Op 02166, Third Dept 3-31-22

Practice Point: Administrative searches are deemed constitutional in “heavily regulated industries.” Commercial trucking is a heavily regulated industry. The use of electronic logging devices (ELD’s) to monitor the hours and places of operation of commercial motor vehicles (CMV’s) and the inspection of ELD’s by law enforcement personnel during roadside safety inspections constitute valid administrative searches.

 

PLAINTIFF AGREED TO PROVIDE POURED, NOT PUMPED, CONCRETE AND SPECIFICALLY EXCLUDED THE INSTALLATION OF TACTILE STRIPS FROM THE SUBCONTRACT; DEFENDANT SUBSEQUENTLY REQUESTED THAT PLAINTIFF PROVIDE PUMPED CONCRETE AND INSTALL TACTILE STRIPS; THESE CHANGES WERE MATERIAL BUT NOT “CARDINAL” SUCH THAT PLAINTIFF’S PERFORMANCE WAS EXCUSED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that defendant’s (Banton’s) requested changes to the contract were not a “cardinal changes” such that Banton breached the contract. The plaintiff, pursuant the subcontract, provided concrete for the construction project. The original subcontract indicated plaintiff would “pour” not “pump” the concrete and would not install “tactile strips.” Subsequently, Banton requested that the concrete be pumped and that tactile strips be installed. The parties then agreed to proceed with those changes:

Supreme Court found that Banton’s request to modify the concrete delivery method from pouring to pumping, in light of the express subcontract exclusion, was a material change to the scope of plaintiff’s work under the agreement. Although we agree with the court that this was a material change, we do not find it to be a cardinal change such that Banton can be found to have breached the contract … . A cardinal change is one that affects “‘the essential identity or main purpose of the contract,’ such that it ‘constitutes a new undertaking'” … . The main purpose of this subcontract was to complete the concrete work for the project, and we do not find that the changes in the work requested by Banton fundamentally changed this purpose so as to constitute a cardinal change that would relieve plaintiff of its obligation to perform under the subcontract … . This conclusion is further supported by the fact that plaintiff was ready, willing and able to implement these changes and continue to perform under the subcontract, but only if its price was met. McCarthy Concrete, Inc. v Banton Constr. Co., 2022 NY Slip Op 02168, Third Dept 3-31-22

Practice Point: Here it was determined that the changes to the subcontract requested by the defendant were “material” but they were not “cardinal” such that plaintiff’s performance was excused. Plaintiff had specifically excluded “pumped,” as opposed to “poured,” concrete and the installation of tactile strips from the subcontract. Defendant subsequently requested “pumped” concrete and the installation of tactile strips. Essentially the parties agreed to proceed with the changes. Supreme Court should not have held plaintiff was not obligated to perform.

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PLAINTIFF COUNTY, ACTING ON BEHALF OF THE NURSING HOME WHERE DECEDENT WAS CARED FOR, WAS ENTITLED TO DISCLOSURE OF DECEDENT’S TAX RETURNS; THE RETURNS ARE RELEVANT TO WHETHER DECEDENT’S SON BREACHED THE “RESPONSIBLE PARTY AGREEMENT” WHICH REQUIRED HIM TO USE THE DECEDENT’S INCOME TO PAY THE NURSING HOME (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, plaintiff county (on behalf of the nursing home where decedent was cared for) was entitled to disclosure of decedent’s tax returns in this action against decedent’s son. The action alleged the son breached the “responsible party agreement” in which the son agreed to pay the decedent’s nursing home costs from the decedent’s income and resources:

Unlike a typical action where the assets of a defendant are irrelevant unless and until a judgment is obtained, here … the existence and value of decedent’s assets are critical to the issue of whether Jeffrey Garry [decedent’s son] breached the agreement by failing to use such assets to pay for decedent’s care … . …

Although “tax returns are generally not discoverable unless the party seeking them shows that they are relevant to issues in the case, indispensable to the claim and unavailable from other sources” … , we are satisfied that plaintiff made the requisite showing here, particularly given defendants’ reluctance to produce responsive documents or interrogatory responses that may have otherwise provided information contained in decedent’s tax returns … . County of Warren v Swan, 2022 NY Slip Op 02169, Third Dept 3-31-22

Practice Point: Although tax returns are generally not discoverable until a judgment is obtained, here the decedent’s returns were deemed relevant to whether decedent’s son breached the “responsible party agreement” with the nursing home which cared for decedent. The agreement required decedent’s son to pay the nursing home from decedent’s income and resources.

 

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