Fourth Department

Criminalizing the Victims


This week's Daily Record column is entitled "Criminalizing the Victims."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Criminalizing the Victims

The Appellate Division, Fourth Department on Oct. 10 declared that the City of Rochester’s youth curfew was unenforceable in Anonymous v. City of Rochester, 2008 N.Y. Slip Op.

At issue in the case was the legality of the youth curfew, which became effective Sept. 2006. The ordinance made it unlawful for those younger than 17 to be in a public place Sundays through Thursdays from 11 p.m. and 5 a.m., and between midnight and 5 a.m. on Fridays and Saturdays.

A minor accused of violating curfew could immediately be taken into custody and a conviction of the
ordinance constituted a “violation,” as defined in the Penal Law and was punishable by a sentence of up to 15 days in jail.

The “findings and purpose” of the youth curfew are found in section 45-1 of the ordinance, which provides that:

A. A significant number of minors are victims of crime and are suspects in crimes committed during the nighttime hours, hours during which minors should generally be off the streets
and getting the sleep necessary for their overall health and quality of life. Many of these victimizations and criminal acts have occurred on the streets at night and have involved violent crimes, including the murders of teens and preteens.

B. While parents have the primary responsibility to provide for the safety and welfare of minors, the City also has a substantial interest in the safety and welfare of minors. Moreover, the City has an interest in preventing crime by minors, promoting parental supervision through the establishment of reasonable standards, and in providing for the well-being of the general public.

C. A curfew will help reduce youth victimization and crime and will advance the public safety, health and general welfare of the citizens of the City.

The court balanced the government’s interests in enacting the statute with the constitutional rights of the plaintiffs and concluded the ordinance was inconsistent with state law as it applied to minors
younger than 16 and imposed unconstitutional restrictions on both the parents and minors affected by the curfew.

In reaching its decision, the court noted that the city failed to establish that the imposition of the curfew actually achieved the stated objectives behind its implementation:

The Mayor and the Chief of Police expressed their opinions and beliefs concerning the particular vulnerability of juveniles during nighttime hours, but those opinions and beliefs are insufficient to demonstrate a substantial relationship between the ordinance and its goals. …[T]he information concerning the results of the implementation of juvenile curfews in other municipalities is equivocal at best and does not establish the necessary relationship between the ordinance and the goals of reducing juvenile crime and victimization.

I find it particularly ironic that one of the primary goals of the youth curfew was to reduce the victimiza-
tion of our city’s youth since, for some, it may have had the exact opposite effect.

During the four years that I was a Monroe County assistant public defender, I was entrenched in the lives
of a certain segment of the city’s population. Many of the people I represented were involved in the criminal justice system as a result of horrible drug addictions. And, many of these people, most of whom were barely able to take care of themselves, had children.

I can only imagine the state of the home lives of their children. Physical and sexual abuse is commonplace in such households, as the addicts perpetuate the cycles of abuse to which they were
subjected as children.

When your caregiver is addicted to drugs, the streets may seem a far safer alternative than being trapped in a small apartment with an addict, subject to their unpredictable, erratic and abusive behavior. 

Where the objectives of a youth curfew are unproven and unrealized, it is unforgivable to jail children for taking to the streets as a form of escape and self-preservation.  Criminalizing attempts to avoid victimization simply is not the answer.

It all depends on how you define ‘marriage’

Drlogo11_2 This week's Legal Currents column, which is published in The Daily Record, is entitled "It all depends on how you define ‘marriage’ "  The article is set forth in full below and a pdf of the article can be found here.

My past Legal Currents articles can be accessed here.


It all depends on how you define ‘marriage’

Last week, in Martinez v. County of Monroe, 2008 NY Slip Op. 00909, the Appellate Division, Fourth Department held that valid marriages of same-sex couples performed in other jurisdictions must be recognized in New York.

In Martinez, the plaintiff sued her employer, Monroe Community College (MCC), seeking, in part, a declaration that MCC was required to recognize her valid Canadian marriage to her same-sex partner and provide her partner with spousal health care benefits.

The court noted that New York recognizes all marriages occurring outside of the state unless the marriage is prohibited by the “positive” law of New York, or the marriage is contrary to the prohibitions of natural law, such as those involving incest or polygamy. The court concluded same-sex marriages did not fall within either of the exclusions to the rule.

The Fourth Department reached this conclusion in spite of the recent New York State Court of Appeal’s decision in Hernandez v. Robles, 7 N.Y.3d 338 (2007), in which the court held the New York Constitution did not compel the recognition of same-sex marriages occurring in New York. Rather, because the court in Hernandez indicated the Legislature was free to enact legislation recognizing same-sex marriages, same-sex marriages were not necessarily against public policy in our state, despite MCC’s assertions to the contrary.

From a philosophical standpoint, I agree wholeheartedly with the Fourth Department, just as I found the dissent’s argument in Hernandez to be far more palatable than the majority’s.

In my opinion, marriage, at its most fundamental level, is about the connection and commitment between two people, founded on mutual respect and love, a joining of two souls, entered into by individuals willing to weather the course together, for better or for worse, for richer or for poorer, in sickness and in health.

The Hernandez majority, however, reduces this fine institution to its most base level, and focuses an inordinate amount of attention on heterosexual sex and one potential outcome of that act — a pregnancy.

Although the Fourth Department distinguished the Hernandez decision, I predict it will be pivotal, should this case reach the Court of Appeals, although for an entirely different reason than that discussed in Martinez.

Determination of the issues raised in Hernandez necessarily revolve around the definition of the term “marriage.” The concept is not defined in the Domestic Relations Law and, instead, has been refined through case law.

As explained in Hernandez, “implicitly or explicitly, the Domestic Relations Law limits marriage to opposite-sex couples.” In New York, in other words, the term “marriage” is limited to a marriage contract entered into between a man and a woman. That another jurisdiction chooses to define marriage more broadly than New York may not require our state to expand its concept of marriage.

By way of example, suppose New York enacted a law requiring all dogs transported into the state to be quarantined for one month. Cats, however, are not to be subjected to the requirement.

One day, a woman attempts to enter the state with a dog and asserts it is not subject to the quarantine requirement since her state recently passed legislation deeming all four-legged domesticated animals as “cats”; therefore, what appears to be a “dog” actually is a “cat”.

Under this scenario, New York reasonably could assert that “a dog is a dog,” despite another jurisdiction’s legislation to the contrary, and the animal entering would be quar- antined.

Likewise, because New York defines marriage as between a man and a woman, it is not required to recognize a same- sex commitment made in another jurisdiction since it does not fall within New York’s definition of “marriage.” The issue of whether the out-of-state commitment should be recognized is moot, since the commitment is not a “marriage” under New York law.

In my opinion, the strongest defense to this argument would be that, because the Legislature chose not to specifically define “marriage” in the Domestic Relations Law or elsewhere, its intent was to allow the concept of marriage to change with the times, rather than limiting it to a single, rigid definition.

Is a “Canadian marriage” the same as a “New York marriage” in this context? For now, the answer is “yes.”

It will be interesting to see what tomorrow brings.

Fourth Department Holds New York Must Honor Gay Marriage Originating in Canada

Gavel2 It's a decision that has already received much attention:  Martinez v County of Monroe, 2008 NY Slip Op 00909.

At issue in this decision was whether Monroe Community College properly denied health care benefits to the female partner of a female student.  The MCC student had previously married her partner in Canada.

In reaching its decision, the Court noted that:

For well over a century, New York has recognized marriages solemnized outside of New York unless they fall into two categories of exception: (1) marriage, the recognition of which is prohibited by the "positive law" of New York and (2) marriages involving incest or polygamy, both of which fall within the prohibitions of "natural law"...

The Court then concluded that neither exception applied in this case, and that recent New York Court of Appeals decision, Hernandez v. Robles (previously discussed here) did not mandate a different result, since the holding of that case was that the New York Constitution did not compel the recognition of same-sex marriages occurring in New York.  In other words, the Legislature remains free to enact legislation that allows same sex marriages in New York.

Props to the Fourth Department and to Jeff Wicks, acting of counsel for the NYCLU, a friend of mine with whom I serve on the Communications Committee at the Monroe County Bar Association.

For additional coverage of this decision, see:

Continue reading "Fourth Department Holds New York Must Honor Gay Marriage Originating in Canada" »

Fourth Department Upholds Search Conducted Pursuant to the Navigation Law

Matter of Murtaugh v New York State Dept. of Envtl. Conservation, 2007 NY Slip Op 06085, is an interesting decision that appears at first glance to be a boring, dry decision, but ends on a high note with the discussion of lofty constitutional issues.

At issue was the constitutionality of sections of the Navigation Law that permitted the DEC to enter the premises of the petitioner's motor vehicle dismantling business in order to investigate the alleged release of toxic substances.

The Court concluded that the statutory framework did not violate the petitioner's search and seizure rights:

Although constitutional protections against unreasonable searches and seizures apply to administrative inspections of private commercial property, those engaged in business in industries subject to a complex and pervasive pattern of regular and close supervision and inspection have a substantially diminished expectation of privacy in such business affairs, and that diminished "privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections" (Donovan v Dewey, 452 US 594, 599; see generally Marshall v Barlow's, Inc., 436 US 307, 313; People v Quackenbush, 88 NY2d 534, 541-542). The dismantling of vehicles is a pervasively regulated industry (see People v Cusumano, 108 AD2d 752, 753). Under the statutory scheme, respondents' entry is in furtherance of the substantial governmental interest in environmental protection and remediation, rather than in furtherance of criminal investigation and prosecution (cf. People v Scott, 79 NY2d 474, 498-499; People v Burger, 67 NY2d 338, 344). Moreover, the statute furnishes " a constitutionally adequate substitute for a warrant' " by informing the property owner of the prospect of the inspection and limiting the discretion of the inspecting officers (Quackenbush, 88 NY2d at 542)...We thus conclude that the Navigation Law provisions do not violate the proscription against unreasonable searches and seizures contained in the Fourth Amendment of the United States Constitution or article I, § 12 of the New York State Constitution

I'm not particularly surprised by this holding.  One of the larger projects I've been working on as of late is updating a search and seizure treatise and this holding comports with recent federal court decisions regarding administrative searches.  While I haven't researched this particular issue under New York law and our fine state has been known to expand constitutional rights under our State Constitution, nevertheless, I'd be surprised if this holding was overturned on appeal.

No More Movie Theaters For Me

Cooper v Carmike Cinemas, Inc. 2007 NY Slip Op 05028, is a case that has cemented my love for Netflix.  In Cooper, the plaintiff was injured when he stepped on a nail while a patron at the defendant's movie theater.  As a result of the injury, his foot became infected and had to be amputated

See what I mean? Netflix, all the way, baby!

But I digress--and then some.

The Fourth Department held, correctly, in my opinion, that the trial court inproperly denied the defendant's motion for summary judgment on the grounds that the plaintiff could proceed on the theory of res ipsa loquitur.  The Court concluded that res ipsa loquitur was inapplicable since the record failed to establish that the nail that caused his injury was within the exclusive control of the defendant.

However, the Court held that the defendant's motion for summary judgment was properly denied on another basis:

Defendant failed to meet its burden of establishing as a matter of law that it did not create the dangerous condition...nor did it establish that it lacked actual or constructive notice of the dangerous condition...We note in particular with respect to notice that, in support of its motion, defendant submitted the deposition testimony of several of its former employees, none of whom had any personal recollection of the manner in which defendant's theaters were cleaned or the frequency of the cleaning at or near the time of the incident. ...Defendant submitted no evidence that the theater had been cleaned and inspected during a period of time that was close to the time of plaintiff's injury. Thus, "defendant failed to establish that the [nail] had not been on the floor for a sufficient length of time to permit an employee to discover and remedy the condition"...

I bet the defense would have been granted summary judgment in a heartbeat if the motion had included affidavits from employees with personal knowledge rather than relying on deposition testimony.  Sometimes it seems like it might save time and be a lot easier to rely on excerpts from depositions, but in my experience it generally creates more work down the road than if you'd spent a little time up front to get the information that you need in affidavits that you've prepared.

Occasionally you can find snippets of testimony from deposition transcripts that support your motion, but it's rare to find exactly what you require.  Obviously, you can use deposition testimony from witnesses for your opponent, since you won't be able to obtain affidavits from them unless of course opposing counsel provides them in support of their response, although those affidavits are generally not helpful for your position).

But, when it comes to agents of your client, your best bet is almost always to obtain affidavits and utilize the deposition transcripts as further evidence of the point that you're trying to make.

Another issue that arises when using deposition transcripts to support you motion is whether to attach the relevant excerpts of the transcripts or to attach the transcripts in their entirety.

There are two camps on this.  I've heard judges complain that lengthy motions with hundreds of pages of transcripts attached as exhibits is pointless and serves no purpose other than contributing to the demise of many poor trees.

I happen to be in the other camp, since I've found myself in the unenviable position of attempting to draft an interlocutory civil appeal on another attorney's file when only excerpts were included.  Let me assure you that it's extremely frustrating when the testimony that would really help your position on appeal is found on page 28 of the transcript, but only pages 23-27 were attached to the motion and thus are part of the record on appeal.

But, once again, I digress.

Back to my original point.  No more movie theaters for me.  In fact, I don't think I'll be leaving my house anytime soon.  It's a jungle out there.

Fourth Department on Serious Injury

Gavel_2 At issue in Mc Carthy v Bellamy, 2007 NY Slip Op 0338, was whether the trial court properly denied the defendants' motioin for summary judgment. 

The plaintiff commenced the lawsuit seeking damages for injuries to her cervical spine allegedly sustained as a result of a motor vehicle accident.  The defendants subsequently brought a motion for summary judgment on the grounds that the plaintiff failed to allege serious injury. 

The Fourth Department concluded that the motion should have been granted:

"E]ven where there is objective medical proof [of a serious injury], when additional contributory factors interrupt the chain of causation between the accident and claimed injury——such as a gap in treatment, an intervening medical problem or a preexisting condition——summary dismissal of the complaint may be appropriate... Here, the record establishes that in 1999 plaintiff complained of left-sided neck pain that had persisted for three months, resulting in an x-ray showing "minimal spondylosis" and "possible minor cervical degenerative disease." Plaintiffs' failure to acknowledge or address that preexisting condition in opposition to the motion renders the opinion of plaintiffs' expert "speculative"...

We likewise agree with defendants that plaintiffs' failure to explain a 15-month gap in plaintiff's treatment renders summary judgment dismissing the complaint appropriate...(Internal citations and quotations omitted).

I suppose the lesson to be learned from this case, assuming the plaintiff's response to the defendants' motion is characterized accurately, is that it's probably not a good idea to ignore your opponents' assertions. Simply setting forth facts which establish serious injury without addressing the alleged weaknesses in your case is probably unwise--at least in the Fourth Department and most certainly in this case.

Was Delay in Notifying Insurer Reasonable?

GavelAt issue in Philadelphia Indem. Ins. Co. v Genesee Val. Improvement Corp., 2007 NY Slip Op 03389, was whether the defendant, GVIC, had failed to timely provide notice to its insured, the plaintiff, of an injured worker's Labor Law s. 200,  240(1) and 241(6) claims.

The worker was injured on September 24, 2001 and commenced suit against GVIC on June 4, 2002.  On June 21, 2002, the plaintiff insurer received notice from the GVIC of the pending lawsuit.  The insurer disclaimed based upon GVIC's 9 month delay in providing notice of the worker's accident.

The Fourth Department concluded that plaintiff insurer was not obligated to defend and indemnify  GVIC since GVIC could not have reasonably believed that it was immune from potential liability.   

In reaching its determination, the Court set forth the relevant law:

Although a good-faith belief in nonliability may excuse a failure to give timely notice...[a]t issue under the policy provision [in this case] is not whether [GVIC had] a good-faith belief in nonliability, but whether [it] should have anticipated a claim... [T]he insured's belief must be reasonable under all the circumstances, and it may be relevant on the issue of reasonableness, whether and to what extent, the insured has inquired into the circumstances of the accident or occurrence...

Ultimately, the determination turns on whether an ordinary prudent person could have reasonably believed himself to be immune from potential civil liability under the circumstances...(Internal citations and quotations omitted).

The Court then noted that GVIC was aware of the accident when it occurred, but failed to conduct an investigation.  Accordingly, the Court held that GVIC's explanation for its failure to promptly notify its insurer of the accident due to its belief that other parties would bear ultimate responsibility for the worker's injuries was insufficient since the belief in immunity from liability was unreasonable as a matter of law.

These types of determinations are always very fact specific, but without fail, the lesson to be learned from each and every decision relating to late notice is that the safe practice is to notify your insurer of an accident, even if you think that you're not at fault.  It's better to be safe than sorry.

Fourth Department--Not So Fast Officer

In People v. Jones, 2007 NY Slip Op 0339, the defendant appealed from a judgment which convicted him upon a plea of guilty to criminal possession of a controlled substance in the first degree.

At issue was whether the trial court erred in refusing to suppress the evidence seized by the police from the trunk of his car.  The police stopped his vehicle after receiving complaints of drug activity in the area where he was parked.  They approached him and asked for his license and registration, which he provided. 

According to the officers, the defendant then reached for the center console of the front passenger area of his car.  The police, allegedly fearing that he was reaching for a weapon or concealing contraband, ordered him to exit his vehicle.  The patted him down and discovered a large amount of money in small bills,at which point he began to "act nervous".  They searched the front passenger area and found nothing, moved onto the rear passenger's side and found a scale with white residue on it and then searched the front driver's side area where white residue resembling crack was found.  A full search of the vehicle then occurred and cocaine was discovered in the trunk.

The Court concluded that the search should have ended when nothing was discovered in the front passenger area and thus the drugs should have been suppressed.

The Court explained that:

Under those circumstances, the police were justified in conducting a limited search of those parts of the vehicle in which they had observed defendant's furtive movements, i.e., the front passenger area and center console (see People v Mundo, 99 NY2d 55, 59; Carvey, 89 NY2d at 712; People v Fludd, 20 AD3d 351, 353, lv denied 5 NY3d 852; People v Cheek, 18 AD3d 475, 476, lv denied 5 NY3d 786; People v Anderson, 17 AD3d 166, 168). The search should have ended, however, when the police found no weapon or contraband in the front passenger area and center console.

Sounds about right to me, although I must admit I was pleasantly surprised by the decision.

That being said, the Court remanded the case to the trial court to determine whether the defendant consented to the search of his vehicle as the police claimed, although he denied that allegation.  So, it boils down to whether the Court chooses to believe the police or the defendant.  My money's on the cops.  How about you?

Fourth Department Rules Amended

Effective March 28, 2007, the Appellate Division, Fourth Department, amended sections 1000.13(q) and 1022.11(d) of its rules, which relate to the withdrawal of counsel assigned to perfect an appeal on behalf of an indigent defendant.  The new rules set forth new procedures to be followed when seeking to be relived an of assignment.

The Order, which includes the amended rules can be found here.

Can Defense Counsel Interview Plaintiff's Treating Doctors in Medical Malpractice Cases?

Last week the Fourth Department issued a very interesting decision in Kish v Graham, 2007 NY Slip Op 02376.  At issue was whether defense counsel in medical malpractice actions are entitled to conduct ex parte interviews of a plaintiff's treating physicians.

The Court concluded that such interviews were not permissible under New York law:

In our view, there are compelling reasons for prohibiting such interviews. First, there are no provisions in the law permitting such informal disclosure. Second, formal discovery procedures are in place that would allow an "on the record" discussion with such witnesses in the presence of counsel for the opposing party. Third, we are concerned here with witnesses with privileged medical information, not merely witnesses who will testify to nonprivileged facts. Thus, the established case law that permits equal access to fact witnesses does not apply here. Although a person's relevant medical history is placed at issue when an action is commenced by or on behalf of that person, access to that medical history is not without boundaries...Unsupervised interviews with treating physicians in an ex parte setting may result in the intentional or inadvertent revelation of a person's irrelevant medical history.

Fourth, and perhaps most importantly, we can conceive of no reason for allowing a practice that concededly is not permitted prior to the filing of a note of issue to be permitted after the note of issue is filed...There is no statutory or regulatory authority in New York that would permit ex parte interviews with a plaintiff's treating physicians and, to the extent that prior cases of this Court suggest otherwise, they are no longer to be followed. As the Second Department succinctly wrote, "compulsion of such unsupervised, private and unrecorded interviews plainly exceeds the ambit of [CPLR] article 31" (Arons, ___ AD3d at ___).

Eric Turkewitz over at the New York Personal Injury Law Blog noted that two of the four Appellate Divisions, the Fourth and Second Department, have reached this conclusion, and predicts that the issue will likely reach the New York Court of Appeals.  I'm inclined to agree with him, but only time will tell if we're correct.