|(Skip Dickstein/Times Union)|
Saturday, November 25, 2023
Tuesday, July 4, 2023
|Credit: Hans Pennink, AP|
Let's look at two such cases:
There is no dispute that the Retirees here suffered injuries while serving as firefighters and that General Municipal Law § 207–a provides for these Retirees to receive an award totaling the equivalent of their regular salary or wages when serving as active firefighters in compensation...The definition of “regular salary or wages”...is critical; any unwarranted expansion of the definition undermines the goals of the legislation, forcing municipalities to spend more on disability payments and less on active fire protection.Where a collective bargaining agreement ... is entirely silent regarding the status of disabled fire[fighters] as employees of the city[, it] should not therefore be construed to implicitly expand whatever compensation rights are provided petitioners under the statute. [Citations and quotation marks omitted.]
The dissent interprets “regular salary or wages” differently than the enacting legislature did. It argues that regular salary or wages only includes “ ‘regular,’ ‘base’ or ‘annual’ salary as defined in the CBA [collective bargaining agreement]” along with several other types of payments previously recognized by our doctrine. The dissent's approach, which seemingly looks solely to the placement of labels and headings in a CBA, would allow municipalities and unions to advantage current active firefighters at the expense of retirees disabled in the line of duty—something the statute was originally designed to prevent.
Under the CBAs, the Retirees would have been legally entitled to the holiday pay and the check-in pay for performing their regular job duties. Consequently, those pays are part of the “regular salary or wages” to which they are entitled by General Municipal Law § 207–a (2)....It is clear from the CBAs that all firefighters are entitled to receive holiday pay and check-in pay based solely on the performance of regular job duties. The provisions of the CBAs governing check-in pay require that firefighters be present for duty 12 minutes prior to the commencement of their tours of duty [and] specify, without qualification, that each employee “shall receive an additional [5½] days [of pay]” per year. The provisions governing holiday pay provide that firefighters shall be paid for 12 holidays, “whether worked or not.” Hence, all active-duty firefighters performing their regular job duties are contractually entitled to receive both check-in pay and holiday pay. [Emphasis added.]
Including holiday and check-in pay does not pose the risk of unfairness we [have previously] cautioned against. [W]e noted that it would not be appropriate to “imply a right to vacation benefits under section 207–a because disabled fire[fighters] do not have to work at all"...[But i]f compensation is provided in exchange for the performance of an employee's regular job duties, it would not be unfair to provide that payment to a disabled firefighter because, but for their injury, they would be entitled to receive that compensation....Because the CBAs plainly entitle all active-duty firefighters to holiday and check-in pay, Yonkers's determination that these did not constitute “regular salary or wages” under General Municipal Law § 207–a (2) was based on an error of law. [Emphasis added.]
More than twenty years ago, plaintiff, a merchant marine, sued a ship owner for injuries related to alleged asbestos exposure sustained while serving aboard the owner's vessel. The parties swiftly settled and, in exchange for compensation, plaintiff executed a comprehensive release, agreeing to forfeit “any and all” claims for known or potential injuries suffered as a result of his alleged exposure. Despite that release, the same seaman, with the same counsel, is again suing the same ship owner for injuries sustained from that same asbestos exposure. The majority declines to enforce the parties' agreement, holding that defendant failed to meet its burden of demonstrating the validity of the release.
Less than two months after filing [the original] suit, plaintiff and Texaco reached an agreement to settle plaintiff's claim. In exchange for $ 1,750, plaintiff agreed to release Texaco from “any and all claims for damages as alleged, or which could be alleged, for the injuries, sickness and/or disease allegedly caused as a result of the exposure to asbestos, silica, asbestos fibers, and asbestos dusts, and/or silica or asbestos-containing products, smoke and carcinogenic chemicals (not including benzene or products containing benzene).”
Chevron has not met its burden to demonstrate the absence of any material question of fact. The 1997 release does not unambiguously extinguish a future claim for mesothelioma. The release itself does not mention mesothelioma. It does say that [plaintiff] “is giving up the right to bring an action against the Released Parties, or any of them, in the future for any new or different diagnosis that may be made about Claimant's condition as a result of exposure to any product[.]” But “claimant's condition” may cabin the “new or different diagnosis” to ones that related to his nonmalignant asbestos-related pulmonary disease—the “condition” both parties agree was the only one he suffered at the time.[Emphasis added.]
The complaint [against Texaco] does not assist Chevron in resolving the release's ambiguity. [It] at most demonstrates that both Texaco and [plaintiff] were aware that all of the [mentioned] conditions, including mesothelioma, might result from exposure to asbestos, but the absence of mesothelioma (and the other cancers) from the release could readily support the conclusion that the omission of mesothelioma (and the other cancers) from the language of the release was deliberate. The dissent complains that we have set an [“impossibly high”] burden for employers to settle with mariners, but that is not so. It would hardly have been “impossible” for Texaco to insist on including mesothelioma in the release.
As to the adequacy of the consideration, nothing in Chevron's summary judgment proffer established the amount paid by Chevron in exchange for Mr. South's settlement and release, although the parties agree that Mr. South received $ 1,750 from some omnibus amount paid by Texaco to settle his and other claims.
To be clear, it is possible that additional evidence could be developed that would validate the release and extinguish [the worker's] claims. However, applying [the] heightened standard in the summary judgment posture, the record is presently insufficient to demonstrate the effectiveness of the 1997 release as a matter of law.
Saturday, July 1, 2023
|At Columbia Law School|
The People lack a credible justification for the 31–month delay in seeking a search warrant for defendant's DNA. But there is no evidence that their actions, or lack thereof, were taken in bad faith toward defendant, with the aim of prejudicing his ability to defend himself....[D]ue process does not require the drastic remedy of dismissing this case. Where the crime is of the utmost severity, defendant was not incarcerated, there was no public accusation, and defendant has shown no actual prejudice from the delay, dismissal of the accusatory instrument is unwarranted.
Because of the substantial delay—as to most of which the People offer no explanation whatsoever—the constitutional right to prompt prosecution, embodied in the due process clause of our state constitution, was violated. We must reverse. [Emphasis added.]
Vacating any conviction on prompt prosecution grounds runs a genuine risk that a guilty person will not be punished, or, as in this case, not finish out his full sentence. However, vital societal interests can overcome that cost. Our jurisprudence ensures that trials are fair and accurate; it also spurs prosecutors to take crime seriously and give all parties the prompt closure they need to move on with their lives.
The constitutional guarantee of a prompt prosecution places a burden on the state, when prosecuting crimes, to do so with alacrity... Our constitution allows for modest unexcused delays; it allows for lengthy justifiable delays. But it does not allow for lengthy unexplained or, as here, inexplicable delays caused by lethargy or ignorance of basic prosecutorial procedures. The constitutional prompt prosecution guarantee benefits defendants, victims and society at large, and it is the role of the courts to protect it. In this case, the police and prosecutors did not take defendant's constitutional rights or the complainant's sexual assault seriously; they did not act expeditiously with regard to either. [Emphasis added.]
Where a search warrant authorizes the search of premises, a separate showing of probable cause is not required to search containers found on the designated premises, if the object of the search could be found therein...The [Supreme] Court broadly stated that a “lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search [and] this rule applies equally to all containers” [quoting Ross, again]...There is no “constitutional distinction between ‘worthy’ and ‘unworthy’ containers...the central purpose of the Fourth Amendment forecloses such a distinction” [Ross again].
The requirement that warrants must describe with particularity the places, vehicles, and persons to be searched is vital to judicial supervision of the warrant process. Warrants “interpose the detached and independent judgment of a neutral Magistrate between the interested viewpoint of those engaged in ferreting out crime and potential encroachments on the sanctity and privacy of the individual.”To further that role, our constitution assigns to the magistrate the tasks of evaluating whether probable cause exists to initiate a search and defining the subjects to be searched....The particularity requirement protects the magistrate's determination regarding the permissible scope of the search. Thus, to be valid, a search warrant must be “specific enough to leave no discretion to the executing officer.” So important is the role of the neutral and detached magistrate that we have in the past parted ways from federal constitutional jurisprudence when we believed that an emerging rule of federal constitutional law “dilute[s] ... the requirements of judicial supervision in the warrant process." [Emphasis added.]
People v. Keta  [declining to incorporate a federal rule permitting warrantless searches of business establishments in light of the paramount importance of “advance judicial oversight” under Article 1, Section 12 of the State Constitution]; P.J. Video  [distinguishing federal constitutional law in part of the grounds that New York imposes a “rigorous, fact-specific standard of review ... upon the magistrate determining probable cause”].
Even were we writing on a blank slate, we would not adopt the rule advocated by the People. The touchstone of the [New York] constitutional protection for privacy, under Article 1, Section 12 of the State Constitution, is whether a person has a reasonable expectation of privacy. Those expectations must at times give way to “compelling police interest[s].” Even then, the permissible “scope of a search has been carefully limited” by the requirement for probable cause and a particular description of the subjects to be searched. Those limits have not been honored in this case. [Emphasis added.]
[T]he dissent never addresses the fundamental tenets of our search warrant jurisprudence: it is the magistrate, and not the police officer, who determines the scope of the search conducted pursuant to a warrant...That determination must be based upon the factual allegations presented in the warrant application. To satisfy the constitutional requirement for particularity, the description setting forth the search must “leave no discretion to the executing officer[s].” If, as the dissent says, trafficking in drugs provides probable cause to search vehicles, the officers can set forth the results of their investigation...and make their case to the magistrate. If that proof is insufficient to convince the magistrate to authorize a search of the vehicles, allowing a search because the vehicles are located on a premises would constitute an unconstitutional bootstrapping. [Emphasis added.]
Parenthetically we may point out that in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States. [Emphasis added.]
Wednesday, June 14, 2023
|NY Senate Photo|
Over the last several decades, this Court has established an approach to such cases that permits recovery against the government only in a narrow set of circumstances. Although typically applied to tragic facts befalling an individual, the special duty rule's purpose is to permit the government to protect its citizenry as a whole by allocating its resources in a manner that best promotes public welfare.
Yes, as the majority noted, "this Court has established [that] approach." This "special duty" rule is the Court's own. It is not mandated by legislation or by any authority other than the Court itself. As such, nothing prevents the Court from refining, tailoring, or even doing away with this rule--again, of its own making--in the interests of the most basic fairness and decency.
[The responding police officers] did not voluntarily assume a special duty in plaintiff's favor...[T]he police were not on the scene or in a position to provide assistance if necessary, nor had they promised to 'provide assistance at some reasonable time.' In these circumstances, plaintiff could not have justifiably relied on any promises made or actions taken by defendants.
Passersby found Dora Howell face down on the pavement outside her apartment building, screaming for help and unable to move. Ms. Howell's knee, pelvis, and hip were all broken, and her spine was fractured. She remained in the hospital for over a month undergoing surgeries to treat her extensive injuries. How did this happen?Unfortunately, such incidents are far too common. Ms. Howell's ex-boyfriend, Andre Gaskin, dragged her by the hair into his third-floor apartment, a floor above hers, and physically assaulted her. When Ms. Howell went to the window yelling for someone to call the police to help her, Mr. Gaskin said, "You want help? I'll send you for help," and threw her out of the window.Mr. Gaskin had violently assaulted Ms. Howell before, beginning when she was pregnant with their child. The first time he assaulted her, he threw her on the floor and kicked her stomach, causing her to bleed and require hospitalization. On the basis of that assault, Ms. Howell obtained an order of protection against Mr. Gaskin, requiring him to stay away from and not communicate with her. Based on Mr. Gaskin's subsequent conduct, Ms. Howell obtained seven additional orders of protection against him, the most recent of which issued less than two months before Mr. Gaskin threw her out of the window. How did it happen that a woman who obtained eight orders of protection against the same abuser wound up unprotected?
Orders of protection are supposed to mean something. Ms. Howell called the police to report violations of the September 26th order on October 7, October 15, October 18, October 29, November 5, November 6, November 12, and November 13—each time explaining that Mr. Gaskin had violated the order of protection. Three times in the weeks leading up to this incident, the same two police officers...responded to her calls. As explained below, they assured Ms. Howell that they were handling the situation, yet completely failed to do so. Their actions and inactions rendered Ms. Howell's multiple orders of protection meaningless, constituting both a dereliction of their duties and an affront to the courts.Having laid bare the facts in no uncertain terms, Wilson did the same for the law applicable to the eight orders of protection Dora Howell obtained against Gaskin:
[O]ur legislature in 1994 required officers to arrest persons in violation of domestic violence protective orders. The legislation removed all discretion from officers: even if a victim of domestic violence begs the officers not to arrest the violator, the police must arrest him. On numerous occasions, Mr. Gaskin was present at the scene when the police arrived and observed him in violation of the orders of protection. Each time they refused to arrest him in the face of a statutory requirement that they do so.
I would hold that CPL 140.10 (4) (b) [The Domestic Violence Intervention Act of 1994] establishes a statutory special duty for holders of domestic violence protective orders....Ms. Howell, who had eight domestic violence orders of protection against Mr. Gaskin ordering him to stay away, is a member of the class for whose benefit CPL 140.10 (4) was enacted: victims of domestic violence who have obtained orders of protection.
Most fundamentally, victims of domestic violence who have obtained orders of protection from our courts are a limited class of persons justifiably entitled to rely on the DVIA's mandatory arrest provision. How could it be otherwise? The majority's holding—that despite the multiple orders of protection and emphatic action by the legislature and Governor requiring the arrest of violators of such orders, two officers are able to countermand all three branches of government and render the victim's reliance on the law "unjustifiable" —is baffling.
Here, the majority holds that a victim of domestic violence, granted special protections by the courts and legislature, may not recover damages when officers violate the law. The genius of the common law is that it does not require that outcome, but allows our court to adjust the common law doctrines of negligence and special duty as fairness and justice require.
Thursday, June 8, 2023
Protecting the rights of New Yorkers is my top priority.
(Yes, it's been a few weeks. End-of-semester review sessions, exams, grading, and other pre-occupations. Indeed, some of the latter were following and interviewing on the selection of the new Chief Judge and on filling the resulting Associate Judge vacancy. In case of interest, here are links to a few of those interviews: How might Rowan Wilson operate as Chief Judge of NY?, PBS, New York Now, 4/21/23 [tv/video: https://www.pbs.org/video/how-might-rowan-wilson-operate-chief-judge-ny-umkeke/]; State's top court poised for shakeup, Capitol Pressroom, 4/14,23 [radio/podcast: https://twitter.com/CapPressRoom/status/1646932620419145742]; NY's Next Chief Judge with Prof. Vin Bonventre, Albany Law School Podcast, 4/6/23 [podcast: https://podcasts.apple.com/us/podcast/nys-next-chief-judge-with-prof-vin-bonventre/id1504271732?i=1000607712208].)
[The worker] was provided an inadequate ladder for his job, and that inadequate ladder was a proximate cause of his fall-related injuries. Mr. Cutaia need demonstrate nothing else to obtain partial summary judgment under Labor Law § 240 (1); the inquiry stops there.
Judge Wilson detailed what happened:
Michael Cutaia was a plumber. His employer directed him to reroute pipes located above a drop ceiling that contained both pipes and electrical wiring. Mr. Cutaia was provided an A-frame ladder for the work…To access the pipes, Mr. Cutaia had to close the ladder and lean it against a wall. When he climbed the closed ladder and reached for a pipe, he was shocked by an exposed electrical wire and fell to the ground….Mr. Cutaia was severely injured. He was burned on his left hand and the left side of his chest down to his hip, causing some scarring. He also suffered herniated discs in his neck, bulging discs in his lower back, and a torn labrum in his shoulder, resulting in chronic pain in his shoulder, neck, and lower back and numbness in his hands and feet. He has subsequently had three shoulder surgeries and a superior cervical fusion and discectomy in his neck.
Wilson made clear how the law and the litigation supported the worker:
Mr. Cutaia sued to recover for his injuries. He alleged violations of Labor Law § 240 (1), which requires contractors and owners to provide adequate safety devices to persons engaged in elevation-related work. [It] "imposes upon owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work" (Barreto v Metropolitan Transp. Auth., 25 NY3d 426, 433 ). A violation of the statute gives rise to absolute liability (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 522 )….Contrary to the majority's assertion…uncontroverted evidence established that Mr. Cutaia was given an A-frame ladder  and could only use that ladder in an unsafe manner (folded and leaned against a wall) to perform the work he was assigned. When Mr. Cutaia used the ladder, he fell and was injured by the fall….Even the defendants admit that the ladder here was an inadequate safety device for the assigned task, because it could not be used as designed for that task...Mr. Cutaia submitted an expert affidavit averring that the failure to provide an adequate ladder or other safety devices was a proximate cause of his injury…. The defendants tendered no contrary expert opinion or other proof to controvert Mr. Cutaia's expert [and] during oral argument, counsel for defendants agreed that Mr. Cutaia bore no burden to show that some other safety device would have better protected him.
The "special duty" is not, as the majority suggests, a restrictive requirement that applies to all negligence suits against governmental entities acting in a governmental capacity. Instead, it arises where the governmental actor has, through its actions as to a specific, identifiable individual, undertaken a duty it would not otherwise have.
We have typically considered the "special duty" doctrine where a municipality has failed to protect the plaintiff from harm caused by a third party. The "special duty" inquiry can arise in such situations because a general duty municipalities may have to protect the public does not automatically give rise to an ordinary duty owed to a specific individual...[W]here the provision of government services is insufficient to support an ordinary duty necessary for a negligence claim to proceed, we then have asked whether a special duty exists.
Indeed, the majority's own characterization of the special duty doctrine exposes its error. The majority states that "[t]he special duty doctrine thus developed `to rationally limit the class of citizens to whom the municipality owes a duty of protection,'" citing Kircher v City of Jamestown, 74 NY2d 251, 258 ). The cases cited by the majority for its descriptions of the special duty doctrine all are cases that involve claims that governmental actors failed in their duty to protect an individual from third-party harm. [But w]hen a governmental actor directly and negligently injures someone, no "duty of protection" is involved—it is a duty not to inflict injury.
[H]olding the government liable in negligence for its own acts that directly cause injury serves the same socially beneficial purpose as with private actors: placing an economic incentive to take reasonable steps to avoid unnecessary harm on the party able to avoid it. To the extent a different cost-benefit calculus pertains to some types of government action that cause direct injury, that is handled through the separate application of governmental immunity, not contortions of negligence law.
Where we could have revived the proud tradition of Chief Judge Cardozo's Court in advancing tort law to meet modern needs by announcing an ordinary duty of the police to use due care in planning and executing no-knock warrants, the majority has littered its opinion with unsound conclusions suggesting that police activity—or any nonproprietary governmental negligence—can proceed only by establishing a special duty. Instead of advancing the law, we become a regressive outlier. Other states do not require any showing of a special duty when a governmental actor has directly harmed the plaintiff.