The Third Department recently confronted a case where a state university knew, through its provision of mental health services, that a student intended to harm another student and had in place a threat assessment policy that required its counselors to refer those matters to the administration for further investigation. In that circumstance, the Court held, the University had a duty to comply with its own procedures, and the claimant could proceed to trial on whether the University did so, without proving that the University owed him a special duty. Let’s take a look at that opinion and what else has been happening in New York’s appellate courts over the past week.
Appellate Division, Second Department
People v Coley, 2025 NY Slip Op 01945 (2d Dept Apr. 2, 2025)
Criminal Law, Disclosure Obligations, Speedy Trial
Issue: Do the People’s disclosure obligations require them to provide the defendant with underlying records from a prior case where one of the prosecution witnesses was found to be incredible?
Facts: “On April 1, 2022, at approximately 12:45 a.m., Lt. Ramiro Ruiz and Police Officer Miguel Vanbrakle responded to a radio call of ‘men fighting’ in Queens, and, upon arrival, they allegedly saw the defendants, Adrian Febus, Alexandra Rossy, Dominique Pearsall, and Derrick Coley, inside a 2012 black Infiniti car. ‘All parties’ appeared to Officer Vanbrakle to be engaged in ‘verbal disputes.’ When one of the defendants got out of the car, Lt. Ruiz allegedly saw a loaded .380 caliber pistol ‘on the floor directly below the driver seat’ of the car.” The People charged defendants with various weapon-related offenses, and they were arraigned on April 2nd.
On August 17, 2022, the People filed their certificate of compliance with their discovery obligations and a statement of trial readiness. By that time, the People had provided “‘Law Enforcement Officer Witness’ letters for, among others, Lt. Ruiz and Officer Vanbrakle . . . The LEOW letter for Lt. Ruiz indicated that there were three civil lawsuits in which he was named as a defendant, three substantiated Civilian Complaint Review Board allegations, eight open CCRB allegations, six guilty pleas to New York City Police Department Internal Affairs Bureau charges, and another substantiated IAB charge. The first Ruiz letter also included a disclosure that Lt. Ruiz had testified at a suppression hearing (in an unrelated matter) conducted by Justice Ronald D. Hollie, and that, in a written decision dated December 30, 2020, the hearing court had found Lt. Ruiz’s testimony ‘not credible in establishing probable cause for the stop of the defendant’s vehicle and subsequent search.’ The first Ruiz letter did not provide the name or docket number of the case, nor the date of the testimony, and the People did not separately provide a copy of the written decision, a transcript of Lt. Ruiz’s testimony at the suppression hearing, or any other underlying documents pertaining to that case.”
On September 10th, an attorney for one of the defendants requested that the People provide the “underlying documents for IAB or CCRB substantiated cases” against Lt. Ruiz and the “court minutes for the suppression hearing where Lt. Ruiz’s testimony was found to be incredible by Judge Hollie on December 30, 2020.” On September 19th, the People filed a supplemental certificate of compliance, again certifying that they had disclosed all impeachment materials, and provided defendants with a supplemental LEOW letter for Lt. Ruiz that “elaborated on the first Ruiz letter by indicating, among other things, that there were additional allegations against Lt. Ruiz. In addition, the second Ruiz letter corrected certain inaccurate information contained in the first Ruiz letter regarding the matter in which Lt. Ruiz’s testimony was found to be incredible. Specifically, the second Ruiz letter stated that in ‘October 2016’ Lt. Ruiz had testified in a pretrial suppression hearing before Justice Ronald D. Hollie, that Justice Hollie had ‘denied suppression of the evidence,’ but that ‘on review, in a written decision dated December 30, 2020, the Appellate Division, Second Department reversed J. Hollie’s decision’ and ‘found that ‘none of the testimony of Lt. Ruiz or the other officer witness should be credited, such that the People failed to prove the legality of the vehicle stop and the admissibility of the evidence obtained as a result.’” The second Ruiz letter, like the first Ruiz letter, did not provide the name or docket number of the case or the date of the hearing, other than the reference to ‘October 2016.’” And again, the People did not provide the “the transcript of Lt. Ruiz’s testimony at the suppression hearing in the case in which he was found to be incredible, this Court’s written decision finding his testimony to be incredible, or any other underlying records pertaining to that case.”
On September 22, defendants filed omnibus motions, arguing that the People’s certificates of compliance should be stricken because they had not disclosed the underlying documents for the allegations of misconduct against Lt. Ruiz. “In response, the People argued that CPL 245.20(1)(k) does not require the production of underlying documents related to police misconduct, and that the LEOW letters were sufficient to satisfy the statute. In an order dated November 17, 2022, the Supreme Court, among other things, determined that the People had failed to establish that they had exercised good faith and due diligence in turning over all known discovery prior to filing their COCs and therefore, the COCs were invalid. The court directed the People to provide all underlying records pertaining to substantiated and unsubstantiated IAB and CCRB records related to the police officers listed as potential witnesses, and to provide the underlying records related to the case in which Lt. Ruiz’s testimony was found to be incredible.” On December 6th, the People filed a second supplemental certificate of compliance, but failed to comply with Supreme Court’s direction to turn over the underlying records. On December 14th, the People finally disclosed “136 pages of additional underlying IAB and CCRB documents related to Lt. Ruiz’s disciplinary history,” but still did not provide the minutes in which Lt. Ruiz’s testimony was found incredible until January 31st.
On March 22nd, defendants “moved pursuant to CPL 30.30 to dismiss the indictment on the ground that the People had failed to be ready for trial for a period in excess of 180 days from the date of arraignment and to invalidate the People’s second supplemental COC . . . The defendants argued that no valid COC had ever been filed because the People had . . . failed to provide timely disclosure of underlying disciplinary records and the minutes of Lt. Ruiz’s incredible testimony in the Harris case. In response to the motions, the People argued, among other things, that the Supreme Court had improperly invalidated the August 17, 2022 COC and the September 19, 2022 supplemental COC, and that the December 6, 2022 second supplemental COC was valid. The People further argued that the LEOW letters were sufficient to satisfy their discovery obligations under CPL 245.20(1)(k), and that they were not required to turn over all underlying documents because it would create an untenable burden.” Supreme Court granted the motions, and dismissed the indictments.
Holding: The Second Department affirmed, holding that the People’s failure to turn over the underlying records for Lt. Ruiz’s misconduct proceedings and the hearing minutes where his testimony was found incredible violated their automatic discovery obligations under CPL 245.20. The Court explained, as part of the 2019 discovery amendments, “CPL article 245 provides for ‘automatic’ disclosure by the People to the defendant of certain specified material and information. CPL 245.20, titled ‘[a]utomatic discovery,’ provides in part that the prosecution ‘shall disclose to the defendant . . . all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution’s direction or control”’ (id. § 245.20[1]). That includes ‘[a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government’s behalf in the case, that tends to . . . impeach the credibility of a testifying prosecution witness’ (CPL 245.20[1][k][iv]).” “The use of the words ‘all evidence and information’ in this subparagraph supports that the Legislature intended to provide the broadest discovery possible to defendants in the area of impeachment material. Limiting the application of this particular subparagraph to impeachment material that derives from the subject matter of the charge(s) against the defendant, rather than the subject matter of the case alone, would contravene the clear intent of this legislative provision. For impeachment purposes, all that is required for impeachment material to be ‘related to the subject matter of the case’ is that it relate to the credibility of a witness in the case,” regardless of whether the prosecution credits the information.
Here, therefore, the Court held, “pursuant to CPL 245.20(1)(k), the People were required, and failed to timely provide underlying records pertaining to People v Harris, including the minutes from the hearing in which Lt. Ruiz’s testimony was found to be incredible . . . Although these records were belatedly disclosed, the People failed to demonstrate that they exercised due diligence and made reasonable inquiries prior to filing the second supplemental COC. Accordingly, the court properly determined that the second supplemental COC was improper, properly struck the statement of readiness as illusory (see CPL 245.50[3], and properly granted the defendants’ motions . . . pursuant to CPL 30.30 to dismiss the indictment.”
Appellate Division, Third Department
Health Law, State Administrative Procedure Act
Issue: Did the Department of Health’s clarification of required Medicaid billing practices for physicians who prescribe drugs constitute a rule under the State Administrative Procedure Act?
Facts: Under the Education Law, “licensed healthcare providers who are legally authorized to prescribe drugs are generally prohibited from also dispensing more than a 72-hour supply of those drugs to their patients.” However, one exception to this rule is “when the drugs are being dispensed pursuant to an oncological . . . protocol.” Upon reviewing certain Medicaid pharmacy claims handled by managed care organizations, DOH concluded that physicians were submitting claims for drugs falling outside of the oncological protocol exception, and a small number of them—12 out of 116,000 practitioners—were submitting the claims to “their patients’ pharmacy benefit, as opposed to their medical benefit. In other words, that small group of medical practitioners had been submitting and receiving reimbursements for dispensed drugs under the statutory methodology for drugs dispensed by pharmacies, which receive payment not only for the drugs that they dispense, as medical practitioners do for the drugs that they provide, but also a professional pharmacy dispensing fee. Those medical practitioners included petitioner, an oncology practice that engages in physician dispensing.”
DOH then clarified appropriate billing practices for these circumstances. In a section of its July 2022 Medicaid newsletter entitled “Policy Clarification for Practitioner Dispensing,” DOH purported to “supersede previous communications on this topic,” stating that “the state Medicaid program reimburses for drugs furnished by practitioners to their patients on the basis of the acquisition cost to the practitioner and that additional registration or ownership of a pharmacy is not required. The clarification went on to provide that practitioners billing for medications dispensed to its fee-for-service patients should use the medical claim format and that practitioners still participating in managed care should check with the patient’s health plan to determine the billing policy for prescription drugs dispensed directly to patients.”
“Petitioner then commenced this CPLR article 78 proceeding to annul the clarification as an unpromulgated rule, unconstitutionally vague, irrational and violative of section 504 the Rehabilitation Act of 1973 (see 29 USC § 794). Citing anticipated financial losses for expenses attendant to medication dispensing, that is, beyond the acquisition cost of the drugs, petitioner argued that respondent’s alleged new rule would force it to cease its physician-dispensing services altogether, thereby both irrationally depriving cancer patients from effective treatment and discriminating against them by effectively precluding them from meaningful access to the provider of their choice. Supreme Court rejected each of petitioner’s arguments.”
Holding: The Third Department held that DOH’s clarification of the billing practices was not a rule subject to the promulgation requirements of the State Administrative Procedure Act. The Court held, “specifically exempted from the definition of a rule under the State Administrative Procedure Act are forms and instructions, interpretive statements and statements of general policy which in themselves have no legal effect but are merely explanatory. As we recently reiterated, the primary difference between a rule or regulation and an interpretive statement or guideline is that the former set standards that substantially alter or, in fact, can determine the result of future agency adjudications while the latter simply provide additional detail and clarification as to how such standards are met by the public and upheld by the agency.” Here, the Court reasoned, “[t]he challenged clarification, conveying the statutory payment methodology for medical practitioners and directing that they use the medical claim format — and, thus, that they not submit claims for payment under the statutory methodology for drugs dispensed by pharmacies — does no more than implement the governing statute through billing guidance, and it is therefore not a rule.”
Cuomo v State of New York, 2025 NY Slip Op 01991 (3d Dept Apr. 3, 2025)
Torts, Special Duty
Issue: Does a student need to establish a special duty to hold a university liable for failing to protect them from harm by another student?
Facts: “In November 2018, Michael Roque pleaded guilty to murder in the second degree in connection with the fatal stabbing of decedent Joao Souza in his dormitory on the campus of Binghamton University approximately seven months prior. Roque and decedent were both students at the University at the time of the attack and had been friends until decedent began dating Roque’s ex-girlfriend. Roque, who was not a resident of the dormitory where the attack occurred and did not have a swipe card to enter, accessed the residence after two students exited.” Claimant, on behalf of decedent’s estate, then commenced this wrongful death action against the University, alleging negligence based on two theories: “(1) the University breached its duty as a landlord to provide security, and (2) the University breached a duty to protect decedent from Roque, who had expressed to University personnel an all-consuming hostility against decedent prior to the attack.” During discovery, the University “produced records from the University’s Counseling Center detailing statements Roque had made to a counselor about decedent in the months prior to the attack” and University officials confirmed that the University had a threat assessment policy under which University counselors were required to make a threat assessment referral to the administration “when a student was assessed to pose a serious threat of harm to self or others.”
Claimant sought further discovery on the policy, and filed a motion to compel when the University objected. The University, in turn, cross-moved for partial summary judgment dismissing the theory that it had a duty to protect decedent. The Court of Claims “denied claimant’s motion to compel and granted defendant’s cross-motion for partial summary judgment. Relying on Eiseman v State of New York (70 NY2d 175 [1987]), the court concluded, as a matter of law, that the University did not owe decedent any duty of protection from the dangerous conduct of Roque nor was it obligated to restrict Roque in some manner based upon either’s status as a . . . student.”
Holding: The Third Department reversed, holding that claimant’s “duty to protect” theory was not precluded by the Court of Appeals’ prior holding in Eiseman. The Court explained, “[a]s it pertains to the duty of care owed by a university to its students, the Court of Appeals in Eiseman v State rejected the doctrine of in loco parentis at the college level and held that colleges today in general have no legal duty to shield their students from the dangerous activity of other students. Claimant, however, is not seeking to hold the University liable for failing to protect decedent simply by virtue of his status as a student on campus — a theory which would be incompatible with Eiseman. The crux of claimant’s argument, as we understand it, is that counselors employed by the University’s Counseling Center were negligent in failing to make a threat assessment referral to the Dean of Students’ office upon learning of Roque’s hostility toward decedent in the months before the attack and in failing to warn decedent of Roque’s threats against him. Since the specific acts of negligence occurred during the University’s provision of mental health services — a proprietary function — we conclude that no special duty need be established to hold the University liable and it is held to the same duty of care as private individuals and institutions engaging in the same activity.” “As this Court has recognized, mental health care providers may, in limited circumstances, have a duty to third parties to take reasonable steps to prevent their patients from harming members of the public when the provider knows that the patient poses a credible threat of violence. Imposing such a duty is particularly appropriate where the provider’s relationship with the tortfeasor placed him or her in the best position to protect against the risk of harm. Given that the University had threat assessment and referral procedures in place governing actions to take when faced with a distressed student, we conclude that the University owed decedent a duty to reasonably comply with those policies, if applicable.” Because questions of fact existed on that point, the Third Department reversed the grant of partial summary judgment and remanded for further proceedings.
New York Appeals 