Third Department Justices Disagree on Whether Student Accused of Sexual Assault Should Have Right to Cross-Examine Accuser

The Appellate Division, Third Department has decided a number of significant issues recently involving the State University of New York’s disciplinary system in sexual assault cases. First, it was Matter of Haug v State Univ. of N.Y. at Potsdam, in which the Court annulled the expulsion of a student accused of sexual assault, finding that the hearsay statement of the accuser wasn’t enough to support the discipline. That case is at the Court of Appeals on an appeal as of right, and has been fully briefed, just waiting for an argument date.

Next, it was Matter of Weber v State Univ. of N.Y., Coll. At Cortland, where the Third Department reached a seemingly contradictory result to Haug. In Weber, the facts were a little more clear, but in neither case did the accused student have the “affirmative consent” to sex that the SUNY Code of Conduct requires. While in Haug, the Third Department vacated the expulsion, in Weber, the Court upheld it.

The Third Department’s latest foray into the SUNY disciplinary process in sexual assault cases came just this week. In Matter of Jacobson v Blaise, the Third Department heard a case arising from an alleged sexual assault on Halloween 2015 at SUNY Plattsburgh. Neither the accused student nor the accuser remembered who initiated the sex, and both were drunk at the time. Five days afterward, the accuser reported it as sexual assault, and the accused was issued a “No Contact” order.

At the eventual disciplinary hearing, the accuser listened to the proceedings via Skype, but did not participate. Instead, the lead investigator that had filed the disciplinary charges against Jacobson read the accuser’s statement into the record at the hearing. Jacobson was allowed to cross-examine the investigator at the hearing, but not the accuser herself. This was a major point of contention between the majority and dissent at the Third Department.

As the majority explained, under the “‘Students’ bill of rights’ section in the Education Law, the reporting person has the right to ‘[m]ake a decision about whether or not to . . . participate in the judical or conduct process . . . free from pressure by the institution’ (Education Law § 6443).” This protection has two components: first, the accuser can decide whether or not to participate in the hearing, and the school can’t tell him or her that failure to participate could hinder the case; second, the accuser has the right to remain anonymous. In light of these protections, the Court held, Jacobson had no due process right to cross-examine his accuser at the hearing, whether in person, electronically through Skype, through the hearing officer, or by written questions. His right to question the investigator about the accuser’s statement was enough in this case, the majority decided.

The majority recognized, however, that there may be a case where a limited right to cross-examination of the accuser should be permitted. In Weber, for example, “the accused student submitted questions through the hearing officer who reworked the question ‘into a more neutral form'” (Weber, 150 AD3d at 1432). Thus, the majority set out a new rule for when the limited right to cross-examine the accuser arises:

where a material factual conflict exists between the statements of a reporting person and an accused student, a mechanism should be made available for the accused student to present questions for the reporting person to address, akin to that utilized in Doe or Weber.

The two Justice dissent, on the other hand, would have held that Jacobson’s due process rights had been violated. The dissent countered:

The dissent recognized that cross-examination is not necessary or warranted in many student disciplinary cases, most of which result in nothing more than a slap on the wrist or a suspension from which the student can return to school. But sexual assault cases are different, the dissent reasoned. They lie at the extreme end of disciplinary consequences and, thus, an accused student should have a full panoply of due process rights to cross-examine the accuser in whatever form the hearing officer finds appropriate.

In this case, the dissent noted, the accuser was already watching the hearing via Skype and could have been questioned that same way, or Jacobson could have been allowed to submit questions for the hearing officer to ask. Either way, the dissent argued, the failure to give Jacobson this right deprived him of due process at the hearing and rendered his expulsion void.

Here’s the thing though. The majority too found a reason to vacate Jacobson’s expulsion. It just wasn’t on due process grounds. Instead, the majority held that the investigator had at the hearing improperly defined what it meant to obtain affirmative consent to sex and suggested that Jacobson had to have been the one to ask for consent because he initiated the sex by penetrating the accuser. That’s not the right definition of either affirmative consent or initiation, the majority held, and it seriously undermined the Board’s decision to sustain the sexual assault charges. So, it sent the case back to the SUNY Disciplinary Board for a new hearing.

The dissent agreed with that flaw too, but because it also found a due process violation, it wouldn’t have sent the case back. Instead, it would have annulled the determination and ended the matter altogether.

Now, Jacobson will have a chance to go back before the Board for a new hearing in the charges, which may be of little comfort to him if he is again denied a chance to have the accuser questioned.

The right of cross examination issue in sexual assault disciplinary hearings is a hard and interesting one. There are certainly important interests on both sides, and I haven’t done enough research to know how those interests should be balanced.

It’s the kind of issue that should be heard by the Court of Appeals so there is a single rule to be applied statewide, but that won’t happen quite yet, unless the Third Department dissenters grant Jacobson leave to appeal. Without an Appellate Division leave grant, the Court of Appeals can’t hear the issue in this case because the remand for a new administrative hearing renders the Appellate Division order nonfinal. It seems to me, though, that this would be a good companion case to Haug, which is now fully submitted before the Court of Appeals. I can’t imagine it will be long before the Court is asked to address the question.

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

Fourth Department Affirms Class Certification for Buffalo Jills in Case Against NFL, Bills

In Ferrari v The National Football League, four former members of the Buffalo Jills, the Bills’ cheerleading squad, brought a proposed class action against the NFL, the Bills, and their employer alleging that they weren’t paid for hundreds of hours of work because they were “deliberately misclassified as independent contractors rather than employees.” The Jills’ complaint can be found here.  This suit came on the heels of similar cases brought against the Raiders, Bengals, and 49ers by the teams’ cheerleading squads.  While those cases were either settled (Raiders and Bengals) or dismissed (49ers), the Buffalo Jills case has gone forward.

The latest fight in the case was over class certification, basically, whether the four named plaintiffs in the Jills case can represent the interests and press the wage claims on behalf of all of the current and former members of the Jills as a whole.  Class certification is a key point in a case like this.  If a class is certified, the plaintiffs will have a much stronger position to negotiate a settlement of the case and likely for more money.  If the court doesn’t think the interests are sufficiently similar, however, and all of the plaintiffs are made to bring and prove their own harms and damages, the NFL and Bills would be in a much stronger position.  It’s far less likely that individual Jills will hire their own attorneys and pay to litigate a case for what could end up being a small amount of damages. So, without class certification, many proposed class actions end up being dismissed.  The juice just wouldn’t be worth the squeeze at that point.

In the Jills case, Supreme Court, Erie County held that the Jills’ claims had common questions—whether they were improperly classified as independent contractors instead of employees, and thus were denied wages they should have been paid for appearances in the community—and there were enough affected individuals that the case would be better tried as a class action. Recognizing that this was a pivotal issue in the case, the NFL and Bills appealed.

The Appellate Division, Fourth Department, however, affirmed the class certification order, holding that all five requirements for class certification under CPLR 901(a) had been met.  These are the five requirements that the Court looked at:

a. One or more members of a class may sue or be sued as representative parties on behalf of all if:
1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;
2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members;
3. the claims or defenses of the representative parties are typical of the claims or defenses of the class;
4. the representative parties will fairly and adequately protect the interests of the class; and
5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

Particularly, the Court held that “the common questions include whether the putative class members were employees or independent contractors and whether defendants failed to pay them in accordance with the law, and we conclude that those questions  predominate over individual questions of damages” (Opn, at 3). The Court also noted that the claims of the four named plaintiffs were the same as the potential class members, and that the named plaintiffs can adequately protect the interests of the rest of the class.  Finally, the Court held that the class action was the preferable means of litigating these claims against the NFL and Bills because “this is a case where the cost of prosecuting individual actions would deprive many of the putative class members of their day in court” (Opn, at 4).

This was a big win for the Jills, and the case will now go back to the Erie County trial court, where the parties will go through discovery, depositions, motion practice, and possibly try to reach a settlement.

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


Second Department Grants Leave to Appeal to Court of Appeals Sua Sponte. Can It Do That?

People v Flores is an important case. In Flores, four criminal defendants were tried together on gang assault charges.  The County Court where they were being tried, however, decided that it was going to empanel an anonymous jury, with the jurors identified only by number, not by name.  The defendants’ objected, arguing multiple times that they were entitled to know the names of the jurors and that they were being deprived of a fair trial, but the County Court denied their objections.  Each was convicted of the charges and was sentenced to prison.

On appeal from the convictions, the Appellate Division, Second Department held that the New York Criminal Procedure Law does not permit the empaneling of an anonymous jury, and because it deprived the defendants of a fair trial, harmless error analysis doesn’t apply.  The Court, therefore, reversed the convictions, and ordered a new trial.  Even the dissenter agreed that the CPL doesn’t allow a court to withhold the names of the jurors from a criminal defendant, but would have found the error harmless and affirmed the convictions.

Important case for criminal defendants, but it wouldn’t have caught my eye if not for what came next.  After the decretal paragraph where the Court formally reversed the judgments of conviction and remanded to County Court for a new trial, the Court, on its own motion, granted the People leave to appeal to the Court of Appeals “if they be so advised.”

A sua sponte grant of leave to appeal.  The Second Department certainly seems to grant leave to appeal more frequently that do the other Appellate Division departments, save maybe the First Department, but to do it sua sponte?  I’ve never seen that.  So, I (and probably I alone) want to know, “Can it do that?”

I’ll start with what the Court says it is doing.  The Court’s order purports to grant leave to appeal pursuant to CPLR 5602(a)(1)(i), which provides for permission to appeal a final order of the Appellate Division that isn’t appealable as of right.  Leaving aside whether the Second Department’s order in Flores is appealable as of right for purposes of this post (an argument likely could be made that the case directly involves a substantial constitutional question), the Appellate Division’s citation to CPLR 5602(a)(1)(i) is just wrong.  The Appellate Division’s order is not final.  It reversed a final judgment of conviction, and ordered a new trial, so there are further proceedings still pending in the case.  Because the Appellate Division’s order is nonfinal, CPLR 5602(a)(1)(i) doesn’t apply.

Next there’s CPLR 5602(b)(1), which just generally provides that the Appellate Division may grant leave to appeal from a nonfinal order, like this one, except in a few instances that don’t apply here.  Ok, so that fits, but what about granting leave sua sponte?  The Second Department’s rules govern motions for leave to appeal to the Court by parties, but don’t seem to contain any rules that would limit the Court’s inherent authority to grant a motion that it makes on its own.

The Appellate Division does regularly grant leave to appeal to itself sua sponte where parties have taken an appeal as of right to the Appellate Division where the trial court order is only appealable by permission (see e.g. Ray v Chen, 148 AD3d 568 [1st Dept 2017] [“we sua sponte deem the notice of appeal from that [nonfinal] portion of the order to be a motion for leave to appeal, and grant such leave”]).  That seems to fit, but still in those cases the party did something to show it wanted to appeal.  It just did the wrong thing (file a notice of appeal) and the Court was correcting the party’s error on its own motion.  It wasn’t giving the party an appeal the party never asked for.

Nevertheless, the Court of Appeals has recognized in the past that the Appellate Division departments have authority to grant leave to appeal sua sponte, but cautioned that they should do so only sparingly and only after clearly articulating the reasons why they are granting leave.  Particularly, in Babigian v Wachtler (69 NY2d 1012 [1987]), the Court held:

Finally, we note that the Appellate Division affirmed Supreme Court’s order, without opinion, and sua sponte granted leave to appeal to this court. The Appellate Division’s certification in the absence of any request by the parties bespeaks its conclusion, after having read the briefs, heard the parties and fully considered the appeal, that issues of law of particular significance were presented that merited the attention of this court, as well as the commitment of further time and expense by the litigants. While this court, and the entire appellate function, are better served when the regular review process is followed, including some articulation of the reasoning the intermediate appellate court chose to adopt when it considered the case and reached its result (see, Rufino v. United States, 69 N.Y.2d 310, 514 N.Y.S.2d 200, 506 N.E.2d 910), such an articulation is all the more important in those few cases singled out by the Appellate Division for sua sponte certification

(id. at 1014).

So, it’s clear that the Appellate Division would have authority to grant leave to appeal on its own motion in a civil case, but what about in a criminal one like this?  As Connecticut and Massachusetts criminal appellate lawyer Joe Schneiderman (@connlawjoe on Twitter) reminded me, the civil lawyer, the CPLR generally doesn’t apply to criminal cases; the New York Criminal Procedure Law does.

In fact, the Court of Appeals only a few months ago made that clear in Matter of 381 Search Warrants Directed to Facebook, Inc.  In the Facebook case, the Court of Appeals was faced with whether the denial of a motion to quash a federal Stored Communications Act warrant was appealable, and it held that because the warrants were issued in a criminal case, the CPL governs their appealability.  Here, the Second Department’s order was also issued in a criminal case, so the Court’s citation to CPLR 5602 as the basis upon which it granted leave to appeal is puzzling.

Under CPL 460.20, one judge of the Appellate Division or Court of Appeals may issue a certificate granting leave to appeal to the Court of Appeals in a criminal case.  “An application for such a certificate must be made” on notice to the other side (CPL 460.20[3][a]).  According to Peter Preiser, who wrote the practice commentaries for CPL 460.20, obtaining that certificate is the only way to take an appeal to the Court of Appeals in a criminal case.  Although the statutory text provides the manner in which an application for a certificate granting leave to appeal must be made, it does not seem to preclude a court from exercising its inherent authority to grant the certificate sua sponte.

Although the Court of Appeals has, at times, refused to use analogous provisions of the CPLR to interpret the CPL (see e.g. People v Knobel, 94 NY2d 226, 230 [1999]), because this case involves the inherent authority of a court to act on its own motion, I would suspect that the Court will follow its prior recognition in Babigian that a motion or certificate seeking leave to appeal may be granted sua sponte.

The Second Department’s opinion can be found here.


You Can Be Ticketed for Using Handheld GPS While Driving, Third Department Says

Over the last number of years, the State has made clear that it won’t tolerating talking on the phone or texting while driving because of the serious dangers of distracted driving.  The particular language of the Vehicle and Traffic Law prohibits the use of a “portable electronic device,” which is defined as a “hand-held device with mobile data access.”

In Matter of Clark v New York State Dept. of Motor Vehs., the defendant was ticketed after a police office saw him driving with a handheld GPS in his hand.  The defendant took the ticket to trial, arguing that use of the GPS wasn’t prohibited under the law.  A DMV ALJ wasn’t buying it, he was convicted, and the DMV Appeals Board rejected his appeal.

The Appellate Division, Third Department held that the DMV’s interpretation of the statute to criminalize the use of a handheld GPS while driving was rational. The Court reasoned that the GPS fit within the statutory definition of a “portable electronic device” because “it is mobile and receives data to calculate a driver’s geographical location and to communicate directions” (Opn, at *1).  The Court’s review of the legislative history underlying the statute confirmed that the Legislature meant to prohibit broadly the use of any mobile device that distracts a driver’s attention from the road and prevents the use of both hands while driving.  

So, the Court held, the handheld GPS fit the bill, and the defendant’s conviction was therefore affirmed.

The Third Department makes it very clear that it is not going to upset the Legislature’s and DMV’s attempts to make New York roads safer from distracted drivers.  Simply put, don’t use any handheld device while driving.  If you do, you won’t find any comfort in the courts.

The Third Department’s order can be found here.

Creating Conflict with First Department, Fourth Department Holds that Service of Notice of Voluntary Discontinance After Motion to Dismss is Timely

This is one of those questions that only the truest of procedural nerds can love.  Say you commenced a case.  You think it’s a really good case.  But you decide that you want to move on and pursue other matters, even though it is a good case.  The CPLR says you can discontinue your case without anyone’s consent if you do it early enough.  

Particularly, CPLR 3217(a)(1) says you can voluntarily discontinue your case without seeking the other side’s or the Court’s approval by serving a simple notice “at any time before a responsive pleading is served.”  But the question then becomes, what is a responsive pleading?

The First Department has held that once the opposing party either answers or moves to dismiss the case, the right to voluntarily discontinue the action by simple notice disappears (see BDO USA, LLP v. Phoenix Four, Inc., 113 AD3d 507, 511 [1st Dept 2014]).  The First Department reasoned, “if a motion to dismiss is not a ‘responsive pleading’ within the meaning of CPLR 3217(a)(1), a plaintiff would be able to freely discontinue its action without prejudice solely to avoid a potentially adverse decision on a pending dismissal motion. This Court has made clear that such conduct is improper” (id.).  This view finds support in Professor Siegel’s Practice Commentaries, which note: “[t]he defendant who has moved to dismiss under CPLR 3211 has already done as much in the litigation (and more) than if she had merely answered the complaint” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3217:8).

The Fourth Department, however, now disagrees, creating a clear conflict between the Departments on the point.  In Harris v Ward Greenberg Heller & Reidy LLP, decided June 16, 2017, the Fourth Department in a lengthy review of CPLR 3217 held that a notice of voluntary discontinuance served after a motion to dismiss was still timely because, simply put, a motion to dismiss is not a “responsive pleading” under the statute.  The Court reasoned, the CPLR does not treat a CPLR 3211 motion as a pleading for other purposes, so it shouldn’t be one for purposes of a voluntary discontinuance either.

The Court further held that the legislative history underlying a 2011 amendment to CPLR 3217 supported the view that a case may be voluntarily discontinued by simple notice up until an answer is filed.

Had the Legislature intended a motion to dismiss to terminate the right to discontinue a case by notice, it would have said so, the Court held.  

And so, the Fourth Department rejected the First Department’s rule and created an express conflict that will at some point need to be addressed by the Court of Appeals.  Personally, I think that the Fourth Department’s textual analysis is stronger than the First Department’s rule, which seems more based on the practicalities of litigation than on the language of the statute.  We’ll see if the Court of Appeals agrees when it eventually decides the issue.

The Fourth Department’s order can be found here

First Department Holds that Insurance Law 3105 Doesn’t Immunize Insurer from Proving Justifiable Reliance and Loss Causation to Succeed on Fraud Claim

Under New York Insurance Law § 3105, insurers have an out. If you materially misrepresent something when buying insurance, the insurer can get out of the contract. That’s valuable to insurers as it transfers the risk of loss when the insurer was induced to issue a policy based upon false information.

In Ambac Assur. Corp. v Countrywide Home Loans, Inc., however, an insurer sought to take the operation of section 3105 beyond voiding a falsely procured policy. Ambac, a financial guaranty insurer, brought an action against Countrywide to hold it liable for falsely inducing Ambac to irrevocably guarantee 17 residential mortgage-backed securitizations. On summary judgment, Ambac argued that Insurance Law § 3105 dispensed with the common-law requirement of proving justifiable reliance and loss causation to succeed on its fraudulent inducement claim.

The First Department rejected Ambac’s argument that section 3105 should be extended to reduce its burden on an affirmative damages claim for common-law fraud. The Court held:

This is only the latest in a recent line of fraud cases that the First Department has decided involving the failure of residential mortgage backed securities. Although each of these cases seem rightly decided to me, a credit to the First Department’s panels in handling these complex issues, I wouldn’t be surprised to see the Court of Appeals take one or more of these cases to provide certainty in this emerging area of the law. 

The First Department’s order can be found here.

Third Department, This Time, Upholds Expulsion of Student for Sexual Assault

In Matter of Weber v State Univ. of N.Y., Coll. At Cortland, the Third Department confirmed a SUNY determination to expel a student for sexually assaulting another student, finding that the victim never consented to sex. 

This case is pretty clear cut and would not be that remarkable if it wasn’t for the Third Department’s recent decision in Matter of Haug v State Univ. of N.Y. at Potsdam, which I discussed here.

In the matter of only a few weeks, the Third Department has reached two contradictory decisions on SUNY disciplinary determinations for sexual assault.  Although the facts in Haug were not as clear as in Weber, in neither case did the victim affirmatively consent to sex as required under the SUNY sexual assault policy. Yet, in Haug, the Third Department overturned an expulsion determination because, it held, the victim’s act of taking off her shirt was somehow implicit consent to sex.  In Weber, in contrast, it was the perpetrator of the assault who took off the victim’s clothes.  

I truly hope that this is not the line that the Third Department is drawing on consent.  When SUNY’s policy says affirmative consent is required, it is affirmative consent that the courts should look for.  Requiring anything less for consent is rewriting SUNY’s sexual assault policy and not according SUNY’s disciplinary determinations the deference that they are due.  That is not the courts’ role.

The Third Department’s order can be found here.

First Department Holds Obligation to Repurchase Residential Mortgage Backed Securities Terminates After 6 Years

In Bank of N.Y. Mellon v WMC Mtge., LLC, Bank of NY Mellon was left holding thousands of defective residential mortgage backed securities after the real estate market collapse in 2008.  The Bank of NY, which became the administrator of the loans in a securitized trust in June 2006, sued WMC Mortgage and JPMorgan Chase to force them to repurchase the bogus loans under a Mortgage Loan Sale and Interim Servicing Agreement (MLSA) and Pooling and Servicing Agreement (PSA).  Both agreements provided that upon a material breach of the representations and warranties, including that the loans were not defective, the Bank of NY had to give notice of the breach and WMC then had between 60 to 90 days to buy back the loans.  If WMC failed to do so, JPMC, which had guaranteed the sale of the loans, was on the hook.  “The MLSA further provided that a cause of action for repurchase did not accrue until after the purchaser made a demand for repurchase” (Opn, at 2).  

The Bank of NY gave notice of the material breach three weeks short of the six year anniversary of the 2006 sale, and demanded that WMC and JPMC take back the defective loans, but WMC and JPMC failed to repurchase the loans.  So, the Bank of NY commenced this put back action to force WMC and JPMC to do so.  Supreme Court dismissed the Bank of NY’s suit because it was not brought within 6 years after the misrepresentations were made in connection with the 2006 sale. 

The Appellate Division, First Department affirmed that portion of the Supreme Court order that dismissed the repurchase claims against WMC.  The Court held that the repurchase claims accrued when the sale was completed in June 2006 and the 6-year statute of limitations ended WMC’s obligation to repurchase the defective loans under the agreements because the Bank of NY was no longer entitled to any remedy for the misrepresentations.  The parties could not “decide to change the accrual of an otherwise accrued claim or extend the running of a limitations period,” the Court held, by trying to agree to a different accrual date for a repurchase cause of action under the MLSA (Opn, at 3). Nor could the parties choose to “adopt a discovery rule to delay the running of a limitations period for an existing breach of contract” (id.). Thus, the Bank of NY’s failure to file the repurchase claims against WMC within 6 years after the 2006 closing rendered those claims time-barred.

The First Department, however, declined to dismiss the backstop repurchase claims against JPMC. Although the underlying remedy against WMC was time-barred, the Court held that the Bank of NY could still try to make JPMC to repurchase the loans because JPMC’s guaranty obligation did not accrue until after WMC failed to buy back the loans within 90 days after the Bank of NY’s notice of the material breach.

Thus, the Court held, the mere fact that the Bank of NY’s remedy against WMC was time-barred did not similarly extinguish its claims against JPMC.

The First Department’s order can be found here.

First Department Affirms Trial Court Decision to Set Aside Personal Injury Verdict for Egregious Conduct of Defendant’s Counsel

In Smith v Rudolph, the First Department affirms a trial court decision to set aside a personal injury verdict in the plaintiff’s favor because defense counsel’s conduct was so egregious that it deprived the plaintiff of fair trial.  The Court held:

Here are some examples of what defense counsel did to justify the new trial in the interest of justice:

Although it is certainly strange for the plaintiff to have moved to set aside the verdict after winning, the jury’s failure to award any future damages and apportion the defendant only 70% of the fault likely prompted the motion.

The First Department held that given the outrageous conduct of defense counsel, which affected the entire trial, it was not an abuse of the trial court’s discretion to set aside the verdict in the interest of justice.  The concurrence, however, was quick to point out that this was the rarest of cases, and it is a very high burden to show that the conduct of counsel so prejudiced the trial as to warrant vacatur of a verdict.

Interestingly, the First Department seems to have reached this question in an exercise of its interest of justice jurisdiction because the plaintiff never preserved it by moving for a mistrial while defense counsel’s conduct was occurring.  This will pose a significant reviewability problem should the defendant ever want to take the issue to the Court of Appeals.

The First Department’s order can be found here.

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