Second Department Joins the Third Department in Applying the Child of the Marriage Presumption to Same Sex Spouses

It was only a few weeks ago that the Third Department held, for the first time in New York, that a married same sex couple is entitled to the presumption that a child born during their marriage is a child of the marriage. Now, the Second Department has agreed.

In Matter of Joseph O. v Danielle B., the Second Department faced the same situation that the Third Department addressed in Matter of Christopher YY. v Jessica ZZ. Joseph O. sought to establish his paternity to a child born to Danielle and her wife, Joynell, by artificial insemination using Joseph’s sperm. Like in Christopher YY., Joseph expressly waived any right to seek to establish parental rights or visitation, yet went back on the deal and petitioned Family Court to be declared the child’s father and for visitation.

Danielle and Joynell moved to dismiss the paternity and visitation petitions, arguing that they, as married spouses, were entitled to the presumption of legitimacy, that their child born via artificial insemination was a child of their marriage.  But Family Court held that Joseph had shown enough proof that he was the child’s father that the burden shifted to Danielle and Joynell to show it was not in the best interests of the child to do paternity testing or to declare Joseph the child’s father. Family Court also held that questions of fact existed whether equitable estoppel should bar Joseph from asserting paternity because Danielle and Joynell had permitted him to visit the child three or four times per year.

On appeal, the Second Department began its opinion discussing the irrebuttable statutory presumption of legitimacy that Domestic Relations Law § 73 attaches when a couple has a doctor perform the artificial insemination. Because that wasn’t the case here, the Court held that Danielle and Joynell weren’t entitled to the statute’s irreuttable presumption and couldn’t establish their parentage under section 73. That, however, wasn’t the end of the inquiry. The Court held instead, “Domestic Relations Law § 73 was not intended to be the exclusive means to establish the parentage of a child born through artificial insemination of a donor.”

Turning then to the common law presumption of legitimacy, and relying heavily on the Third Department’s decision in Christopher YY., the Second Department too held that Danielle and Joynell were entitled to the rebuttable presumption that the child born during their marriage was legitimate. Although the Court declined to prescribe what proof would be necessary to rebut the presumption, much like the Third Department did, the Court held that the paternity petition should be dismissed based on equitable estoppel. Joseph agreed to give up his rights, didn’t establish a parenting relationship with the child, and his few visits over 3 years didn’t undermine Danielle’s and Joynell’s parental roles. So, the Court held, Joseph can’t now assert that he is the child’s parent.

Like Christopher YY., this is a significant win for LGBT rights, especially in the important Family Law arena. What’s more, because the Second and Third Departments now agree that the child of the marriage presumption applies to married same sex couples, it’s even less likely that the Court of Appeals will need to address this issue. Because of an old New York rule that makes an Appellate Division decision binding statewide—not just in the Department in which the trial courts sit—until a conflict among the Departments emerges, the now settled Appellate Division precedent already applies throughout the State and is binding in all Family Court proceedings. Unless the Court of Appeals is keen to take on the issue simply to affirm the settled Appellate Division rule, which I think it would given Judge Abdus-Salaam’s monumental decision in Matter of Brooke S.B. v Elizabeth A.C.C., it would take either the First or Fourth Departments disagreeing and creating a conflict for the Court of Appeals to weigh in.

The law in New York now stands firm: same sex couples have the same right to a presumption that their children are legitimate that opposite sex couples always had. And that’s the way it should be.

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

Appellate Division E-Filing Begins March 1, 2018 with Brand New Uniform Rules

Just a few weeks ago, Chief Judge Janet DiFiore announced in her State of Our Judiciary speech that e-filing appeals in the Appellate Division would begin on March 1st. After the Office of Court Administration sought comments on proposed e-filing rules last summer, we knew that e-filing would soon begin. But the official date hadn’t yet been announced. Now, we know. As Chief Judge DiFiore explained, the courts took the bar’s comments to heart and made many changes to the final e-filing rules, which apply uniformly to all four Appellate Division departments. Here are the highlights of how the system will work.

First, this isn’t a full roll out of e-filing in every appeal. To begin on March 1, only limited kinds of cases will have to be e-filed, and they will vary by the Appellate Division Department.

As the e-filing system gets underway, and the Appellate Division works out any kinks, the list of cases will grow. Hopefully, it won’t be long before all appeals will be e-filed.

If you have a new appeal after March 1st (and your case falls within the list of selected cases), how have the appellate rules and procedures changed? First, after you file your notice of appeal, and the Appellate Division receives it, the Court will issue a Notice of Appellate Case or Docket Number. Counsel for the appellant must then file electronically a notice of appearance and, within 7 days, serve a copy of the notice on all other parties and file proof of the service. That’s an entirely new requirement.

Other counsel must then also appear on the electronic docket within 20 days after service of the Notice of Appellate Case or Docket Number, after which all briefs, records, appendices, and other documents would be deemed served when filed electronically.

Recognizing the reality that many attorneys use appellate printers to put together and file their briefs, and likely not wanting to put the appellate printing industry out of business in the state courts, the rules allow for the attorneys to designate a filing agent who may file on his or her client’s behalf. The attorney, however, is the one who remains on the hook for what is filed and ensuring that all deadlines are met.

Although some pro se parties have been previously excluded from e-filing, the new rules will allow a pro se party to choose to participate and e-file his or her brief using the same conventions as counseled parties.

And what are those conventions? Well, if you haven’t learned how to bookmark your PDF briefs and records on appeal yet, now is the time to learn because that’s what the rules require. Briefs must be filed in PDF/A format with the tables of contents of briefs and records linked to the corresponding pages inside. Never done it before? A few helpful resources can be found here (Adobe, Nuance). Also, if the record volumes get too big, they should be split into multiple documents and e-filed separately to ensure they aren’t rejected as exceeding the 100 MB maximum file size.

The new Appellate Division e-filing rules don’t entirely eliminate the need to file hard copies of your brief and record with the Court. But the total number has been reduced to an original and five copies. So, some paper will be saved, but not a ton.

Also, you don’t have to file the hard copies simultaneously with the electronic filing. Instead, the rules require that the parties wait for the Clerk’s Office to review and approve the electronic copy before filing the hard copies. Once you receive the approval notice from the Clerk’s Office, you have 2 business days to file the hard copies.

Finally, like with all other e-filing, the electronically filed documents are considered filed and served when they are uploaded to the NYSCEF system. That means attorneys are no longer constrained by the 5 p.m. (or sometimes earlier) court closing deadline. Instead, lawyers who can’t just put the pen down can write and edit until their heart’s content or midnight, whichever is earlier.  That’s good news for those of us who have had to have a courier race a brief to the Appellate Division at the last minute before 5, and bad news for procrastinators who need a firm deadline to be productive.  I see many late night filings ahead in the Appellate Division.

This is an exciting development, as New York starts to catch up with its counterparts in the federal courts. As the Appellate Division e-filing system gets underway on March 1st, it will hopefully work well enough to convince OCA that e-filing should be expanded to all appeals and, eventually, to all New York courts. Indeed, e-filing is good not only for lawyers, but it also provides the public with a valuable opportunity to get access to the court documents on which decisions are based. That, plus New York’s move to live stream all appellate arguments throughout the state, provides a level of transparency that just wasn’t present before. Now, you can read the parties’ briefs, watch the arguments, and read the court’s decision all from the comfort of your own computer screen. What could be better than that!

The new Appellate Division e-filing rules can be found here.

Third Department Extends Child of the Marriage Presumption to Same Sex Spouses for the First Time

A child is born to a married woman. Under New York law, the child is presumed to be a product of the woman’s marriage. The presumption can be rebutted, of course, but in the beginning, the law assumes that the children of married spouses are legitimate. That makes sense. New York’s policy is to keep families together, unless a different arrangement is clearly in the best interests of the children. Although New York cases have never before applied the child of the marriage presumption to same sex spouses, the rationale for its existence applies equally regardless of the married spouses’ gender. And that’s what the Appellate Division, Third Department held today for the first time.

In Matter of Christopher YY. v Jessica ZZ., Jessica, who was legally married to Nichole at the time, was inseminated in an informal procedure at home using Christopher’s sperm, which he had volunteered to donate. They drew up a contract (without legal advice) that said Christopher agreed to donate his sperm and to waive any claim to paternity of a child conceived or to visitation. In return, Jessica and Nicole agreed to waive any right to child support.

On the second try at insemination, Jessica became pregnant and had a baby girl. After her birth, the baby lived with Jessica and Nicole, and Jessica’s two other children, as a family. But after she was born, Christopher apparently had second thoughts. When the baby was about seven months old, Christopher filed a paternity petition, seeking a paternity test, and a separate petition for custody.

Under New York’s family law regime, the paternity petition almost automatically triggers a court-ordered paternity test and a hearing on what is in the best interest of the child. There is an exception, however. Family Court can decline to order the paternity test if it finds, in a written order, that the test “is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman” (Family Ct Act § 532[a]). That’s what Jessica and Nicole argued here. They claimed that the test should not be held because they, as married spouses, were entitled to the child of the marriage presumption, and that Christopher should be equitably estopped from going back on his agreement.

For the first time in New York, the Third Department held that same sex spouses are also entitled to the presumption that children born to married spouses are legitimate. As the Third Department put it,

As the child was born to respondents, a married couple, they have established that the presumption of legitimacy applies, a conclusion unaffected by the gender composition of the marital couple or the use of informal artificial insemination by donor (Opn, at 5-6).

Although the presumption applied, the Court held that that wasn’t the end of the inquiry. Because the presumption is a rebuttable one, the Court had to still decide whether Christopher had shown “clear and convincing evidence excluding the [spouse] as the child’s [parent] or otherwise tending to prove that the child was not the product of the marriage” (Opn, at 6). The law’s formulation for rebutting the presumption, the Court noted, is problematic for same sex spouses.

If the presumption of legitimacy turns primarily upon biology, as some earlier cases indicate, rather than legal status, it may be automatically rebutted in cases involving same-gender married parents. This result would seem to conflict with this state’s strong policy in favor of legitimacy, which has been described as one of the strongest and most persuasive known to the law. Summarily extinguishing the presumption of legitimacy for children born to same-gender married parents would seem to violate the dictates of the Marriage Equality Act (see L 2011, ch 95), which guarantees to such couples the same legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage as exist for different-gender couples (Opn, at 8 [cleaned up]).

So, the Court held, it is time to rework the standard to apply equally to everyone. But, the problem is, the Court didn’t know how that should work.

While a workable rubric has not yet been developed to afford children the same protection regardless of the gender composition of their parents’ marriage, and the Legislature has not addressed this dilemma, we believe that it must be true that a child born to a same-gender married couple is presumed to be their child and, further, that the presumption of parentage is not defeated solely with proof of the biological fact that, at present, a child cannot be the product of same-gender parents. If we were to conclude otherwise, children born to same-gender couples would be denied the benefit of this presumption without a compelling justification. The difficulty is in fashioning the presumption so as to afford the same, and no greater, protections (Opn, at 9).

Instead of articulating a general rule that could be applied in every case, the Court focused on the facts of this one, holding that Christopher had failed his burden to show that the baby girl was not entitled to the legal status of the product of Jessica’s and Nicole’s marriage. Thus, the Court held, the child of marriage presumption had not been rebutted and no paternity test should be given.

The Court alternatively based its decision on equitable estoppel, that the testimony at the best interests of the child hearing established that Christopher had waived his rights and responsibilities of parenting, and should not now be allowed to go back on that agreement. Indeed, Jessica and Nicole relied on his agreement and cared for the baby from her birth as a family. As the Court put it,

Having led respondents to reasonably believe that he would not assert – and had no interest in acquiring – any parental rights and was knowingly and voluntarily donating sperm to enable them to parent the child together and exclusively, representations on which respondents justifiably relied in impregnating the mother, it would represent an injustice to the child and her family to permit him to much later change his mind and assert parental rights (Opn, at 15).

This is a significant decision for LGBT rights in New York, though not necessarily a surprising one after the courts in New York have routinely offered the same protections and rights under the law to same sex couples as they previously did for opposite sex ones. We’ll see if this case heads to the Court of Appeals on the issue of first impression, but given the underlying facts that weigh heavily in Jessica’s and Nicole’s favors, and the alternative ground on which the Third Department based its decision, the Court may not yet need to address it.

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

 

 

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 than 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


E-Filing Comes to the Appellate Division 

UPDATE – In her 2018 State of Our Judiciary speech, Chief Judge Janet DiFiore announced that e-filing will begin in the Appellate Division on March 1, 2018, and new rules have been issued to govern the process. My post going over the new rules and e-filing procedures can be found here.

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As Bob Loeb of Orrick, Herrington & Sutcliffe’s appellate group pointed out yesterday, the New York courts have issued a proposed rule amendment that would finally bring e-filing to the Appellate Division.


Under the proposed rules, e-filing in identified appeals and original proceedings in the Appellate Division could, if approved, begin as early as this fall. The e-filing system that is proposed is the NYSCEF system used by a number of the counties of the Supreme Court, not, it appears, the Court-PASS system that has been used the Court of Appeals over the past few years.

So, what would be different if e-filing finally makes its way to the Appellate Division? First, once a notice of appeal is entered with the County Clerk and sent to the Appellate Division, the appealing party would be required to file electronically a notice of appearance of sorts, and provide notice to the other parties that the appeal will be e-filed.


Other counsel would then also be required to appear on the electronic docket, after which all briefs, records, appendices, and other documents would be deemed served when filed electronically.  If an order to show cause or something else is served before the other counsel note their appearances on the docket, it would have to be served in hard copy.


Second, e-filing briefs and the record would not dispense with the requirement to file hard copies with the Court, though it would reduce the number of copies that would have to be filed and dispense with service of hard copies altogether.  Slightly less printing costs, but not yet eliminated totally.  Baby steps in the right direction.


Third, because electronic filing would be the primary filing method, and the hard copies would not be required to be filed until the Clerk’s Office approves the e-filed document, attorneys would no longer be constrained by the 5 p.m. (or sometimes earlier) court closing deadline. Instead, lawyers who can’t just put the pen down can write and edit until their heart’s content or midnight, whichever is earlier.  That’s good news for those of us who have had to have a courier race a brief to the Appellate Division at the last minute before 5, and bad news for procrastinators who need a firm deadline to be productive.  I see many late night filings ahead in the Appellate Division.

E-filing in the Appellate Division has been a long time coming, and it is certainly a welcome addition.  The next amendment I would propose is to eliminate hard copy filings altogether (see the Second Circuit’s NextGen ECF system), and then mandate e-filing in every case in Supreme Court as well.  Like I said, baby steps.

What are your thoughts? Is this the right way to approach bringing e-filing to the Appellate Division? What do you like or dislike about the proposal?  What else would you want to see added in the future? I’m interested to know.

The Office of Court Administration will accept comments on the proposed new e-filing rules until July 24, 2017 by email to rulecomments@nycourts.gov.

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