Court of Appeals April-May Session: Arguments of Interest for May 2, 2018

The Court of Appeals wraps up the April-May Session on Wednesday, May 2, 2018 with three cases on the argument docket (the Court’s case summaries can be found here). Two civil cases and one criminal case will be heard today, involving the following issues: (1) under the NYC rent control regulations that provide for deregulation when tenants reach $175,000 in adjusted gross income, must the income reported on a joint tax return be apportioned between the spouses when one of the spouses has vacated a regulated apartment; (2) does a police officer lose his entitlement to defense and indemnification from civil liability under the General Municipal Law when he admits that he intentionally disregarded alibi evidence that would have cleared a criminal suspect, leading to the suspects wrongful detention for four months; and (3) is an individual inquiry required to determine whether a juror is grossly unqualified as a result of her outburst at defendant’s counsel for his repeated use of a racial epithet during trial.

No. 70 Matter of Lemma v Nassau County Police Officer Indemnification Board

Police officers who get sued for things they do in the line of duty generally aren’t individually responsible to pay civil damages in lawsuits. Instead, General Municipal Law 50-l provides that the police department has to defend its officers in civil suits and indemnify them if the courts award damages for the officers’ conduct. But there is a limitation on that principle. Particularly, GML 50-l provides for indemnification in civil actions “from any judgment … for damages, including punitive or exemplary damages, arising out of a negligent act or other tort of such police officer committed while in the proper discharge of his duties and within the scope of his employment.” So, the officers’ conduct that gave rise to liability has to be a “proper” discharge of his duties before the police department will be on the hook for damages.

The question in this case is is Nicholas Lemma, a detective with the Nassau County Police Department, entitled to be indemnified from civil liability for his intentional withholding of alibi evidence that would have allowed a criminal suspect to go free four months earlier. That’s right. Lemma discovered that a suspect was in jail at the time of the robbery that the suspect was accused of committing, and he sat on that information to “let the chips fall where they may.” And he wants the NCPD to pay for his misconduct.

Supreme Court dismissed Lemma’s challenge to the Police Indemnification Board’s decision to deny his request for defense and indemnification. The Court held that Lemma’s actions didn’t satisfy the requirement that they be a “proper” discharge of his duties, because he purposefully withheld the alibi evidence.

The Appellate Division, Second Department affirmed. Now, the Court of Appeals will take up the question. Need an officer show that he or she was acting properly before he or she will be entitled to indemnification from civil damages?

The Appellate Division, Second Department’s order can be found here.

Court of Appeals April-May Session: Arguments of Interest for May 1, 2018

The Court of Appeals returns for the final week of the April-May Session with four cases (three arguments) on its argument docket today (the Court’s case summaries can be found here).  The Court will hear arguments on the following issues today: (1) can the State prove that a parent has maltreated her child by using the child to facilitate shoplifting; (2) whether the State may be the proximate cause of injuries sustained in a motor vehicle accident at an intersection where it failed to complete a traffic study or upgrade the traffic control or warning devices; and (3) whether a criminal defendant may be convicted of depraved indifference assault where it was clear that he committed the assault intentionally.

No. 66 Brown v State of New York
No. 67 Brown, as administratrix, v State of New York

You’ve stopped at intersections before where you just can’t see any oncoming cars, trucks, or motorcycles without creeping way too far into the intersection, right? I know I have. Those intersections are dangerous, and result in far too many serious accidents. One such accident is before the Court of Appeals today.

In 2003, the plaintiff, Linda Brown, and her husband were riding a motorcycle on State Route 350 in Wayne County (where I grew up), just east of Rochester. They were driving about 55 miles per hour, which was the speed limit there, when the pickup truck driven by Henry Friend pulled into the intersection. The motorcycle slammed into Friend’s truck, killing Brown’s husband and seriously injuring her.

In the subsequent personal injury action, Brown sued the State, alleging that the intersection was dangerous because of restricted sight lines, the 55 mph speed limit was excessive for that area, and there weren’t enough warning signs of the intersection on the road. Friend testified that he came to a full stop at the intersection, looked both ways, and never saw any oncoming vehicles before the accident.

The Court of Claims agreed with Brown that the intersection was dangerous, and held that the State had prior notice of the dangerous condition due to 17 prior accidents at that intersection between 1996 and 3002. The Court, however, dismissed Brown’s claims, holding that she failed to prove that the State’s failure to complete a safety study and take corrective action was the proximate cause of the accident.

The Appellate Division, Fourth Department reversed on a 3-2 vote, however, and reinstated Brown’s claims. The Court held that the proximate cause issue wasn’t whether the State’s failure to undertake a study was the proximate cause of the accident, but whether the State was aware of the dangerous condition and failed to remedy it, and then that the dangerous condition was the proximate cause.  Using that standard, the Fourth Department held that Brown had shown that the State was negligent, and remitted for a determination of proximate cause.

On remittal, the Court of Claims found the State 100% liable, and awarded about $7 million for Brown’s injuries and her husband’s death.  The Appellate Division, Fourth Department affirmed, and now the Court of Appeals will hear arguments on the proximate cause issue.

What’s interesting here is that the Court held a municipality liable for failure to complete a traffic study on very similar facts about a year and a half ago. Will the Court extend this decision and apply the same standard to the State?  We’ll see.

The Appellate Division, Fourth Department’s orders can be found here (December 2010 order) and here (November 2016 order).

Court of Appeals April-May Session: Arguments of Interest for April 26, 2018

The Court of Appeals wraps up the first week of the April-May Session with only two criminal cases on the argument docket. Each involves claims of actual innocence and when criminal defendants can bring those claims as a basis to vacate their convictions.  Particularly, the Court will hear arguments on the following issues: (1) whether a freestanding claim of actual innocence is cognizable basis to vacate a conviction under CPL 440.10(1)(h), and whether the waives that claim by pleading guilty to the charges, and (2) whether a criminal defendant’s claim that the People committed a Brady violation and that newly discovered evidence warranted vacatur of his conviction, and whether the Court’s rejection of those claims impliedly also rejected his claim of actual innocence.

No. 62    People v Natascha Tiger

When a severely disabled child was admitted to the hospital with what appeared to be scald burns, the defendant, a licensed practical nurse who had given the child a bath earlier that day, was charged with endangering the welfare of a physically disabled person, and pled guilty. Two years later, however, she moved to vacate her conviction based on a claim that she was actually innocent. Medical evidence, she said, showed that the child had an adverse reaction to medication, and wasn’t actually burned.

After County Court denied her application without a hearing, the Appellate Division, Second Department reversed. The Court held that, consistent with its prior precedent, the defendant could raise a claim of actual innocence as a basis to vacate her conviction.  the Court noted, however, that the Court of Appeals has not yet passed on that question. The Appellate Division also rejected the People’s argument that the defendant had waived her claim of actual innocence by pleading guilty to the charges, holding instead that it would offend due process for an actually innocent person to be convicted and barred from raising that claim on a post-conviction motion.

The Court of Appeals will now hear arguments and decide these open, and important, questions.

The Appellate Division, Second Department’s order can be found here.

Court of Appeals April-May Session: Arguments of Interest for April 25, 2018

The Court of Appeals will hear arguments in three cases on this rainy Wednesday, April 25, 2018, the second day of the April-May Session. On the docket today are two criminal appeals about the right to counsel and a civil case about taxing cigarettes sold on an Indian reservation, involving the following issues: (1) whether Tax Law § 471, which imposes a tax “on all cigarettes sold on an Indian reservation to non-members of the Indian nation or tribe and to non-Indians,” violates Indian Law § 6, which prohibits state taxation on an Indian reservation, and the federal Due Process Clause; (2) whether a criminal defendant’s right to counsel was violated when he was questioned by police officers on a homicide that was “factually interwoven” with a robbery charge for which he had an attorney; and (3) whether a criminal defendant’s right to counsel was violated when a police detective, while questioning the defendant on a homicide investigation, mentioned a pending drug charge for which the defendant had counsel.

No. 59     White v Schneiderman 

Eric White, a member of the Seneca Nation, owns a convenience store on the reservation and sells cigarettes. He brought this action against the New York Attorney General and the Department of Taxation and Finance to challenge the validity of Tax Law § 471, which requires him to charge state sales tax on cigarettes sold to non-members of the Tribe. That, he says, violates Indian Law § 6, which states, “No taxes shall be assessed, for any purpose whatever, upon any Indian reservation in this state, so long as the land of such reservation shall remain the property of the nation, tribe or band occupying the same.”  He also contends that the Tribe entered a treaty with the United States that exempts activities on the reservation from state taxation, and that imposing the tax violates the federal Commerce Clause and Due Process Clause.

Supreme Court, however, dismissed his declaratory judgment action, holding that Indian Law § 6 and the treaty only prohibit the taxation of real property, not goods like cigarettes.  The Appellate Division modified slightly, but agreed that only taxation of real property is prohibited.  White, the Court held, can be required to charge sales tax to non-Indians, and this minimal burden doesn’t violate the Constitution.

The Court of Appeals is now asked to decide.  Does the State have any right to require the collection of taxes on cigarettes on an Indian Reservation?  What about for other goods sold to non-Indians? We shall see.

The Appellate Division, Fourth Department order can be found here.

Court of Appeals April-May Session: Arguments of Interest for April 24, 2018

The Court of Appeals returns for the April-May Session (and so do I after a month off) on Tuesday, April 24, 2018. The Court has three cases on its argument docket (the Court’s case summaries can be found here), which involve the following issues: (1) whether accidental disability retirement benefits are a collateral source that must be offset from an award of future damages under CPLR 4545; (2) whether a New York choice of law provision in a nondisclosure agreement required application of both New York procedural and substantive law, such that the New York borrowing statute (CPLR 202) would require the plaintiff to satisfy two different statutes of limitations, New York’s and that of the forum state; and (3) whether the denial of a motion to quash in a criminal trial is appealable, and whether the Appellate Division properly granted the motion to quash based on the qualified protection for a journalist’s nonconfidential material.

No. 58      Matter of People v Conrado Juarez; Frances Robles

In a brutal case of the sexual abuse and murder of a 4 year old, the Court of Appeals will hear arguments on whether the denial of a motion to quash a subpoena in a criminal case is appealable. Should the Court decide that it is, a really interesting question of journalistic privilege lies beneath.

For 22 years, the police were unable to identify the 4-year-old murder victim who was found in a picnic cooler in Manhattan in 1991. When she was eventually identified in 2013, the police questioned her cousin, Conrado Juarez, as the suspect. He confessed after hours of interrogation, and was charged with murder. Two days later, Frances Robles, a reporter with the New York Times, interviewed him at Rikers Island, but Juarez changed his story. Instead of participating in the murder, this time he said he only helped his sister dispose of the victim’s body after she fell down the stairs.

Juarez moved to suppress his confession as involuntary, and in response the police subpoenaed Robles to testify at the suppression hearing and for her notes. Robles moved to quash the subpoena based on New York’s Shield Law, Civil Rights Law § 79-h(c), which generally protects from disclosure the information reporters gather while investigating stories.

Supreme Court denied the motions to quash the subpoenas, balancing the interests in favor of the People’s access to all evidence that could go to show that Juarez’s statements were voluntary.  The Appellate Division, First Department reversed, and granted Robles’s motions to quash, holding

the People have a videotaped confession by the defendant that has been found admissible at trial and that includes statements consistent with other evidence in the case. Under the circumstances, and in keeping with ‘the consistent tradition in this State of providing the broadest possible protection to “the sensitive role of gathering and disseminating news of public events”‘…, we find that the People have not made a ‘clear and specific showing’ that the disclosure sought from Robles (her testimony and interview notes) is ‘critical or necessary’ to the People’s proof of a material issue so as to overcome the qualified protection for the journalist’s nonconfidential material (Civil Rights Law § 79-h[c]).

On appeal, however, the People now argued that the Court lacks jurisdiction to hear the case because a trial court order denying a nonparty’s motion to quash a subpoena in a criminal case isn’t appealable. The People’s argument is based on the Court of Appeals’ decision about one year ago in the Facebook search warrants case, where the Court held that denial of a motion to quash in a criminal case isn’t appealable, and the Court lacks jurisdiction to consider the underlying merits question.

Unless the Court decides to reconsider its prior precedent from only a year ago, which is highly doubtful, or decides that search warrants are somehow different from subpoenas in criminal cases, this case is going to end up just like the Facebook case, dismissed for lack of jurisdiction and remanded for the Appellate Division to do the same. That’s really unfortunate, but it seems to me unavoidable.

The Appellate Division, First Department’s order can be found here.

Court of Appeals February Session: Arguments of Interest for February 14, 2018

Happy Valentine’s Day! The Court of Appeals wraps up its February Session with three cases on the calendar (the Court’s case summaries can be found here). The specific issues the Court will face include: (1) whether a plaintiff seeking summary judgment on the issue of liability must establish, as a matter of law, that he or she is free from comparative fault or whether that issue should be left to the damages portion of trial; (2) whether a worker was injured as a result of a force of gravity accident under Labor Law § 240(1) where he was operating a forklift when it tipped forward ejecting him from it; and (3) what is the maximum term of probation that may be imposed on a criminal defendant that is adjudicated a youthful offender on a charge of sexual abuse in the first degree.

No. 32     Rodriguez v City of New York

The New York City Department of Sanitation takes care of the snow plowing in New York City.  So, before the City gets a big storm, its trucks have to be equipped with plows and tire chains. That’s what the plaintiff was doing when he was hurt. As he and two co-workers were putting the tire chains on the City’s trucks, his co-workers backed a truck into a garage bay. The plaintiff walked behind the truck, the truck skid on ice while trying to stop, and the plaintiff was pinned between the truck and a stack of tires.

After the plaintiff sued the City for his co-workers’ negligence, Supreme Court denied his motion for partial summary judgment on liability, holding that the issue of the plaintiff’s comparative negligence had to be left to the jury to decide.

The Appellate Division, First Department, noting that when issues of comparative negligence should be decided in the course of litigation have vexed the courts for a long time, affirmed the denial of partial summary judgment. The Court held that the reasonable approach was to submit all of these issues to the jury if the plaintiff is unable to show that he is free from comparative fault on summary judgment.  That way, the Court reasoned, both sides can present their proof on comparative fault and the jury can sort it out.

Two justices dissented, arguing that the plaintiff’s burden on partial summary judgment as to liability should only be to establish the defendant’s fault. As the dissenters put it, “[t]he affirmative defense of comparative negligence is a partial defense that does not bar a plaintiff’s recovery, but merely reduces the amount of damages in proportion to the plaintiff’s culpable conduct.” That approach, the dissenters would have held, more closely aligns with the prevailing case law in New York, the CPLR, and the pattern jury instructions.

I think the dissent is right on this one. A prima facie case on the defendant’s liability for summary judgment purposes need only include enough evidence to show that the defendant was negligent. The plaintiff’s comparative fault is not a complete defense to the defendant’s liability. If the plaintiff can show that the defendant is somewhat at fault, then how much his damages should be reduced as a result of his own fault in the accident should only be addressed at the damages phase, not when the plaintiff has sought partial summary judgment only on liability. We’ll see if the Court of Appeals comes out the same way.

The Appellate Division, First Department’s decision can be found here.

Court of Appeals February Session: Arguments of Interest for February 13, 2018

The Court of Appeals is back for a 2-day week of arguments to wrap up the February Session at Court of Appeals Hall. The Court has 3 cases on the argument docket today (the Court’s case summaries can be found here), the highlight of which finds former Court of Appeals Judge Victoria Graffeo in her debut as an advocate before the Court squaring off with former New York Solicitor General Caitlin Halligan, now with Gibson Dunn. The issues before the Court today include: (1) whether a stop and frisk was justified where the criminal defendant furtively tried avoid the police, then when he was stopped, refused to answer questions, and the police officer saw a bulge up his sleeve; (2) whether, in determining the value of a partnership interest for purposes of Partnership Law § 69(2)(c)(ii)—to buy out the interest of a partner who has wrongfully caused the dissolution of the partnership to allow the partnership to continue—a minority discount may be applied to reflect the lack of control a minority partner has in the operations of the partnership; and (3) whether a motion to dismiss based upon documentary evidence was properly denied where email communications were unclear whether the parties agreed to the material terms of an employment contract.

No. 30      Congel v Malfitano

This case is interesting not only for the issues it presents and the impact it can have on corporate law in New York, but also for who is arguing it.  Former Court of Appeals Judge Victoria Graffeo, who Governor Cuomo unceremoniously declined to reappoint her to the Court at the end of her 14 year term (even though she had not reached the age of mandatory retirement, and most of her predecessors had been reappointed), is back!  Judge Graffeo makes her first appearance before the Court in an advocate’s role since returning to private practice after her time on the Court concluded. And she’s facing off with one of New York’s most formidable foes, former New York Solicitor General (and DC Circuit appointee who never received consideration from Congress) Caitlin Halligan. Should be a fun one to watch!

At issue in the case is whether a partnership was wrongfully dissolved by a single partner, instead of the majority, and whether in valuing the dissolving partner’s share a minority discount should be applied. Two really interesting issues of partnership law, a subject that doesn’t reach the Court of Appeals all that often.

Supreme Court held that Malfitano had, in fact, wrongfully dissolved the partnership, because the partners’ agreement didn’t allow for unilateral dissolution. The Appellate Division, Second Department affirmed that holding, further noting that the mere fact that the agreement didn’t specify a specific time period for the partnership to continue didn’t make it terminable at will, because it provided that the partnership would continue until a majority of the partners elected to end it. That’s a definite term, the Court held.

After a trial on damages, the Appellate Division, Second Department held that a minority discount should be applied to account for the fact that Malfitano, as a minority partner, couldn’t force the partnership to liquidate its assets (a shopping mall). The Court, though, relied primarily on a case from the Supreme Judicial Court of Massachusetts in doing so. The question now is whether New York law permits the same result.

The Appellate Division, Second Department’s order can be found here.

Court of Appeals February Session: Arguments of Interest for February 8, 2018

The Court of Appeals’ February session continues on Thursday, February 8, 2018 with three cases on the argument docket (the Court’s case summaries can be found here).

The Court will hear arguments on the following issues: (1) whether in misappropriation of trade secrets cases, damages can be measured by the misappropriator’s costs avoided, and whether prejudgment interest may be awarded on those damages; (2) when during trial must a criminal defendant invoke the right to proceed pro se; and (3) whether a criminal defendant was improperly denied the right to proceed to trial pro se, but with stand by counsel, and whether the trial court improperly denied the defendant’s attempt to introduce psychiatric evidence to challenge the voluntariness of his Miranda waiver.

No. 26     E.J. Brooks Company, d/b/a TydenBrooks v Cambridge Security Seals

Manufacturing plastic security seals is apparently big business.  You know, those seals that are nearly impossible to get off a bottle without a knife but give you a measure of comfort that nobody tampered with your goods before you opened them.  Well, when your company makes those plastic security seals, and three employees steal your trade secrets to take to a competitor, you sue them for misappropriating your hard work and ingenuity.

That is exactly what happened in E.J. Brooks Co. v Cambridge Sec. Seals, and the plaintiff won at trial.  So, the federal district court ordered the defendants to pay back in damages the costs that they avoided by stealing the trade secrets instead of developing the plastic security seals on their own.  The Court, however, denied the plaintiff’s request for prejudgment interest under CPLR 5001, holding in essence that inclusion of prejudgment interest would be duplicative here because the jury awarded damages from the date of the misappropriation to the date of the verdict.

On appeal, the Second Circuit held that finding liability was easy, but the question of the proper amount of damages for the misappropriation was less so.  The Court explained that New York decisions appear to have authorized a number of different measures of damages in misappropriation of trade secrets cases, but never explicitly the costs avoided measure used by the disctrict court below. So, the Second Circuit decided to certify the question to the Court of Appeals to decide.


The Second Circuit also certified whether the typically mandatory award of prejudgment interest under CPLR 5001 still applies where the plaintiff has already been awarded damages for the entire prejudgment period and an additional award of prejudgment interest would be a windfall.

The Court of Appeals will now have to decide these two certified questions:


The Second Circuit’s opinion can be found here.

Court of Appeals February Session: Arguments of Interest for February 7, 2018

The Court of Appeals’ February Session continues on Wednesday, February 7, 2018, with four cases (three arguments) on the docket (the Court’s case summaries can be found here). The Court will hear arguments on the following issues: (1) whether a contract of insurance that provides it will cover as an additional insured any party that the insured has “agreed to add as an additional insured by written contract” requires a direct agreement between the insured and the intended additional insured, or whether a recital in a collateral agreement is sufficient; (2) whether the Civil Rights Law § 51 right to privacy protects against use of a person’s likeness in a video game; and (3) whether the People were entitled to a Frye hearing to challenge the scientific basis for a criminal defendant’s expert’s theory of the victim’s death where the theory was not novel (that the victim died of drowning after ingestion of five prescription drugs, instead of by strangulation).

No. 23     Gravano v Take-Two Interactive Software, Inc.
No. 24     Lohan v Take-Two Interactive Software, Inc.

Grand Theft Auto V is the latest in a popular series of the video games where the player controls one of several main characters in a mob family/drug cartel story that takes place in the fictional city of Los Santos, San Andreas.  After the game was released, Plaintiffs Lindsay Lohan and Karen Gravano (of the reality show Mob Wives) were upset at what they believed to be characters that depicted them in particular ways.  In 2014, they commenced suit against Take-Two Interactive Software, Inc., the video game’s creator, alleging that it misappropriated their likenesses and violated their rights to privacy under New York Civil Rights Law § 51.

Specifically, Lohan alleged that the Take-Two “used a look-alike model to evoke Lohan’s persona and image.  Further, Lohan argue[d] that defendants purposefully used Lohan’s bikini, shoulder-length blonde hair, jewelry, cell phone, and signature peace sign pose in one image, and used Lohan’s likeness in another image by appropriating facial features, body type, physical appearance, hair, hat, sunglasses, jean shorts, and loose white top.  Finally, Lohan argue[d] that defendants used her portraits and voice impersonation in a character that is introduced to the player in a side mission.”  Gravano v Take-Two interactive Software, Inc., 142 AD3d 776, 777 (1st Dept 2016) (internal quotation marks omitted).

Gravano similarly claimed that the GTA character “Andrea Bottino” mirrored “her image, portrait, voice, and likeness” and “use[d] the same phrases she uses; that the character’s father mirror[ed] Gravano’s own father; that the character’s story about moving out west to safe houses mirrored Gravano’s fear of being ripped out of her former life and being sent to Nebraska; that the character’s story about dealing with the character’s father cooperating with the state government [was] the same as Gravano dealing with the repercussions of her father’s cooperation; and that the character’s father not letting the character do a reality show is the same as Gravano’s father publicly decrying her doing a reality show.”  Id. at 776-777.

After Supreme Court denied Take-Two’s motions to dismiss, the Appellate Division, First Department reversed and dismissed the complaints in their entirety.  The Court held that New York’s right to privacy statute, Civil Rights Law § 51, protects individuals’ name, portrait, and picture, none of which the Court held was used in GTA’s fictional characters.  See id. at 777.  The look-alike depictions, the Court held, were not close enough to violate Lohan’s and Gravano’s rights to privacy.  See id.

The Court further held that even if the GTA depictions were enough to be considered representations of Lohan and Gravano, their claims failed nonetheless because the video game did not fall under Civil Rights Law § 51’s narrow definitions of “advertising” or “trade.”  See id.  Instead, the Court held, the “video game’s unique story, characters, dialogue, and environment, combined with the player’s ability to choose how to proceed in the game, render it a work of fiction and satire,” which is protected under the statute and the First Amendment.  Id.

Ready to speak on the scope and extent of Civil Rights Law § 51’s right to privacy, the Court of Appeals will hear arguments on the issue today.  Now, we can only hope that the stars will join their depictions in front of the Court for oral argument.

The Appellate Division, First Department’s order can be found here.

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