New York Legal Update

Plaintiff's Failure to Request a Different Ladder Destroys Labor Law § 240(1) Claim

Workers take note - if you don't like your ladder you better request a different one. In Miro v Plaza Constr. Corp., 2007 NY Slip Op 02649, the plaintiff worker slipped and fell as he climbed down a six-foot wooden ladder that was partially covered with sprayed-on fireproofing material. Plaintiff alleged that the fireproofing material caused him to lose his footing. At his deposition, plaintiff testified that he could have requested a different ladder from his employer, but did not. Under these facts, the First Department found that the plaintiff's Labor Law  § 240(1) claim against the general contractor and owner should have been dismissed on summary judgment. The Court found that the uncontroverted evidence established that plaintiff recognized the undesirability of the fireproofing material on his ladder, knew full well that he could have requested that his employer provide him with a new, clean ladder, and yet - for no apparent good reason — chose not to make such a request. Thus, the Court found that the plaintiff's decision not to request a new ladder, not any violation of Labor Law § 240(1), was the sole proximate cause of his accident. There was a dissent by Justice Gonzalez who found that since there was no evidence that any replacement ladder was available at the work site the claim was viable.

Amendment to Crime of Disseminating Indecent Material to Minors Enacted

I am a little late in reporting the following amendment to the Penal Law.  On March 19th, Penal Law § 235.22(1) - Disseminating Indecent Material to Minors in the First Degree - was amended to read as follows. The addition is underlined and in bold:

A person is guilty of disseminating indecent material to minors in the first degree when:

1. knowing the character and content of the communication which, in whole or in part, depicts or describes, either in words or images actual or simulated nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors, he intentionally uses any computer communication system allowing the input, output, examination or transfer, of computer data or computer programs from one computer to another, to initiate or engage in such communication with a person who is a minor.

The amendment was to take effect immediately. The amendment stems from the Second Department's decision in People v Kozlow, 2006 NY Slip Op 05995, in which the court held that the word "depict" in the un-amended statute required the sending of "visual" sexual images of sexual conduct. People v Kozlow was scheduled to be argued in the Court of Appeals on March 20th.

Depraved Indifference Shakeout Continues

The shakeout caused by the Court of Appeals' reformulation of depraved indifference murder (Penal Law § 125.25[2]) convictions by its decisions in People v Suarez, 6 NY3d 202 [2005] and People v Feingold, 7 NY3d 288 [2006] continues in the Appellate Divisions. On Tuesday, the First Department released five decisions on appeals from depraved indifference convictions:

• People v Jean-Baptiste, 2007 NY Slip Op 02597
• People v Pasley, 2007 NY Slip Op 02598
• People v Patterson, 2007 NY Slip Op 02600
• People v Suarez, 2007 NY Slip Op 02625
• People v Danielson, 2007 NY Slip Op 02626

Of most significance are the First Department's decisions in People v Suarez and People v Danielson.

People v Suarez is the same case as decided by the Court of Appeals. In People v Suarez, the defendant was acquitted of intentional murder but convicted of depraved indifference murder. The Court of Appeals held that it was error to submit a depraved indifference count to the jury since the evidence was legally insufficient to support it. It remitted the matter to the First Department for an appropriate remedy. In Tuesday's ruling, the First Department rejected an argument that given defendant's acquittal of intentional murder and the Court of Appeals' reversal of defendant's conviction of depraved indifference murder, the Double Jeopardy provisions of the Federal and State Constitutions, as well as the CPL, barred the  defendant from now being tried for intentional manslaughter in the first degree, a charge which was included in the indictment, and submitted to but not considered by the jury. The First Department thus remanded for trial on the unresolved charge of manslaughter in the first degree.

In People v Danielson, the First Department stated that a defendant may not may present an unpreserved legal sufficiency argument (on a depraved indifference conviction) in the guise of a weight-of-the-evidence argument.

Court of Appeals Reviews Admissibility of Expert Testimony on the Reliability of Eyewitness Identifications

The Court of Appeals has addressed the admissibility of expert testimony on the reliability of eyewitness identifications on prior occasions (see, People v Mooney, 76 NY2d 827 [1990]; People v Lee, 96 NY2d 157 [2001]; People v Young, 7 NY3d 40 [2006]). In those prior occasions, the Court, while recognizing that such expert testimony may be admissible, under the particular facts of those cases, found that the trial court had not abused its discretion in denying admissibility. Yesterday, the Court addressed the issue again in People v LeGrand, 2007 NY Slip Op 02588, this time with a different result.  The Court stated its holding as follows:

[W]here the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror.

The relevant facts were as follows: In June 1991, a livery cab driver was stabbed to death in Manhattan. The assailant fled before the police arrived. Four people witnessed the attack who collaborated on a composite sketch. Two years later, defendant was identified as a possible suspect when an officer who arrested him for an unrelated burglary concluded that he resembled the 1991 composite sketch. However, because the police were unable to find any of the witnesses to the stabbing, the homicide case stalled. The case remained dormant until April 1998 when defendant was again arrested for burglary. Police again concluded that he resembled the composite sketch. The authorities located the four witnesses who contributed to the composite sketch and one additional witness to the stabbing who was not identified until 1998. One of the witnesses identified defendant as the killer in a photo array and a lineup. Two of the remaining witnesses were shown the photo array, but neither made a positive identification. Specifically, one witness picked out defendant's photo as a "close, if not exact" match. A third witness described defendant's picture as "similar" to that of the assailant. The fourth and fifth witnesses also examined the photo array, but were unable to identify defendant. There was no forensic or other physical evidence connecting defendant to the stabbing. Defendant was charged with second degree murder in April 1999. The People's case rested solely on identifications made nearly seven years after the crime. In April 2001, during defendant's first trial, three witnesses identified defendant as the perpetrator. However, two of the witnesses had seen defendant's photo array in the district attorney's office the night before they were to testify. Defendant's first trial ended in a mistrial (due to a hung jury) after three days of deliberation.

Before his second trial, the defendant sought to introduce expert testimony in order to "educate the jurors as to the weaknesses and dangers inherent in eyewitness testimony and to present them with an appropriate perspective by which to judge such testimony." The expert would testify as to research findings regarding several factors that may influence the perception and memory of a witness and affect the reliability of eyewitness identifications: in particular, the effect of "weapon focus," the lack of correlation between witness confidence and accuracy of identification, the effect of post-event information on accuracy and confidence malleability. The expert would not, however, opine on the accuracy of any specific eyewitness identification. Moreover, defense counsel's affirmation stated that "[i]f any issues remain unresolved for the court as to the admissibility of such evidence, those issues could be resolved by conducting a Frye hearing prior to trial." After a Frye hearing, the trial court precluded the testimony on the ground that the expert's conclusions were not generally accepted in the relevant scientific community. After the second trial, the jury found defendant guilty of second degree murder.

The Court of Appeals found that the trial court abused its discretion in denying admissibility of all of the expert's proposed testimony, and thus, reversed and ordered a new trial. The Court found that the defense expert's testimony at the Frye hearing contained sufficient evidence to confirm that the principles upon which the expert based his conclusions were generally accepted by social scientists and psychologists working in the field on three of the areas of proposed testimony: (1) correlation between confidence and accuracy of identification, (2) the effect of post-event information on accuracy of identification and (3) confidence malleability. However, with resepect to the effect of weapons focus, the Court found that there was insufficient evidence at the hearing that such was generally accepted by the scientific community. Thus, this proposed testimony by the expert was properly excluded.

The Court made clear that its decision was based in large part by the fact that the People's case turned solely on the accuracy of the witnesses' identification and there was no corroborating evidence connecting the defendant to the crime. In addition, I'm sure that the Court was heavily influenced by the fact that there had been such a long time between the commission of the crime and the witnesses' identification of the defendant. Thus, while People v LeGrand may be seen as a great victory for criminal defendants, it is the opinion of this blogger that its application is likely to be limited based on the particular facts of a given criminal case. The Court recognized that the issue is still one which is within the exercise of the trial court's discretion.

Commentary: The Criminalization of America

Though not related specifically to New York, I found the following article interesting: Justice? What a Joke. The article is by Professor Jonathan Turley and describes how the current rage among legislators is to criminalize minor, essentially offensive behavior from such activities as using cell phones while driving, parents not appearing at meetings with teachers, growing hedges too tall, and children playing with toy guns. As an oft-times critic of always using the law to control people's behavior, I agree with Professor Turley's notion that a crime means nothing if anyone can be a criminal. The article is submitted for your perusal.

Election Law Does Not Allow Access to Absentee Ballot Applications

The Second Department recently decided an issue under the Election Law that apparently has not been addressed before - Matter of Jacobs v Biamonte, 2007 NY Slip Op 02559. The petitioner was a candidate for the New York State Senate. Prior to a special election for that position, he sought copies of all absentee ballot applications in advance of the election so as to afford him the opportunity to interpose and preserve objections to those applications. The Supreme Court denied the relief. On appeal, even though the special election had taken place, the Second Department decided to reach the issue on the merits under the exception to the mootness doctrine finding that the issue presented was likely to recur, it would typically evade review, and it was an issue that had not been considered previously, and its determination would have far-reaching implications for the manner in which challenges to absentee ballots are issued. On the merits, the Court cited Election Law § 8-402(7) which provides for the production and disclosure, upon request, of "a complete list of all applicants to whom absentee voters' ballots have been delivered or mailed, containing their names and places of residence . . . including the election district ... and in the city of New York and the county of Nassau, the assembly district." The Second Department noted that this provision was both specific and limiting in the disclosure contemplated. It did not authorize the dissemination to the petitioner of copies of all absentee ballot applications themselves. The Second Department also rejected the petitioner's contention that since Election Law § 16-106(1) authorized a challenge to original absentee voter's ballot applications it implicitly provided him with the right to review or acquire copies of all absentee voter's ballot applications. The Court stated that any action taken by the courts with respect to a general election challenge must find support and authorization in the express provisions of the Election Law. Thus, since Election Law § 8-402(7) only specifically allowed access to a list of all absentee ballot applicants, the petitioner was not allowed access to the applications themselves.

Commentary: "Wager of Battle" - Have We Advanced That Far?

For those legal history buffs out there, I recommend the Court of Appeals recent decision in Thyroff v Nationwide Mut. Ins. Co., 2007 NY Slip Op 02442, which I blogged about in my March 23rd post. The Court reviewed the history of the common law tort of conversion. As the Court reviewed, before the English royal government undertook the prosecution of crime, the rightful ownership of property was determined by a form of action known as "Wager of Battle" (unless the thief was caught in the act, in which case the thief was summarily put to death). The "Wager of Battle" was a physical altercation or duel between the victim and the thief, with the victor taking title to the goods. Overtime, the practice of trial by jury was instituted and repalced "Wager of Battle" as the later became "widely detested" by the populace. I asked myself while reading Thyoff - have we really advance that far? Physical alteraction has its obvious demerits. But it was probably over pretty quickly, the righteous party was probably victorious around 50% of the time, and most physical injuries heal. Today we have replaced physical altercation with a no less combative verbal and procedural altercation, these battles can last years, and is our current system of litigation any less "widely detested" by the populace? In Thyoff, the plaintiff's property (computer data) was allegedly taken in September 2000.  Mr. Thyoff's action was commenced in the federal courts, which proceeded to the Second Circuit, and then to the Court of Appeals on a certified question. It is now March 2007, and a jury trial has yet to be held. I wonder - if given a choice would Mr. Thyoff have chosen today's jury trial system or the more primitive "Wager of Battle?"

Physicians Who Perform Independent Medical Examinations May Give Rise to Patient-Physician Relationship

Physicians who perform independent medical examinations for insurers or workers' compensation carriers may be subject to a medical malpractice action depending on any advice given to the injured party.  They should take note of the following case from the Third Department - Lawliss v Quellman, 2007 NY Slip Op 02460. The plaintiff injured his right shoulder at work. He consulted an orthopedic specialist who diagnosed a ruptured biceps and recommended immediate surgical repair. His employer's workers' compensation carrier disputed the need for surgery and required him to undergo an independent medical examination (hereinafter IME). The plaintiff was accordingly examined by the defendant, also an orthopedic specialist. Defendant orthopedist reported to the carrier that surgery was not indicated for plaintiff's condition and, instead, he should pursue physical therapy. Accordingly, the carrier refused to approve surgery and plaintiff engaged in physical therapy. But the physical therapy proved ineffective. Plaintiff ultimately underwent surgery on his shoulder, but this also proved ineffective, allegedly because of the lapse of time following the injury. Plaintiff then commenced this medical malpractice action, alleging that defendant had advised him during the IME that surgery was not indicated for his condition and physical therapy would be the appropriate treatment. He further alleged that he relied upon this advice, it was incorrect and the resulting delay in having surgery caused him to suffer an 80% loss of use of his shoulder. Defendant moved for summary judgment dismissing the complaint. The Third Department affirmed a denial of summary judgment. The Court stated that a physician-patient relationship may be implied where the IME physician affirmatively advises the patient, and that the question of whether the advice given is sufficient to create an implied physician-patient relationship is generally for the finder of fact.

Court of Appeals Review

The Court of Appeals has released its latest decisions.  Below are the highlights.

Kolnacki v State of New York, 2007 NY Slip Op 02436 - Failure to include the "total sum" of monetary damges in a claim, as required by Court of Claims Act Section 11(b), is a jurisdictional defect.

The claimant had commecned a personal injury claim against the State for a slip and fall. The claim did not state a specific dollar amount of damages. Instead the claim only alleged that "[t]he full extent of claimant's injuries are not yet known," and that the claimant "incurred injuries, damages, medical and hospital expenses which are to date undetermined." The State moved to dismiss for failure to comply with the requirements of Court of Claims Act Section 11(b). The Court held that the motion should have been granted. Court of Claims Act Section 11(b) provides, "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed." The Court found that since suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the comon law, the statutory requirements conditioning claims against the State must be strickly construed.

Thyroff v Nationwide Mut. Ins. Co., 2007 NY Slip Op 02442 - Common law cause of action of conversion applies to intangible electronic computer records and data.

The plaintiff was an insurance agent for the defendant Nationwide. The parties had entered into an Agent's Agreement that specified the terms of their relationship. As part of the arrangement, Nationwide agreed to lease the plaintiff computer hardware and software, referred to as the agency office-automation (AOA) system, to facilitate the collection and transfer of customer information to Nationwide. In addition to the entry of business data, the plaintiff also used the AOA system for personal e-mails, correspondence and other data storage that pertained to his customers. On a daily basis, Nationwide would automatically upload all of the information from the plaintiff's AOA system, including plaintiff's personal data, to its centralized computers. The Agent's Agreement was terminable at will and, in September 2000, plaintiff's contract was cancelled. The next day, Nationwide repossessed its AOA system and denied the plaintiff further access to the computers and all electronic records and data. Consequently, the plaintiff was unable to retrieve his customer information and other personal information that was stored on the computers.

The plaintiff initiated an action against Nationwide in the Federal Courts asserting several causes of action, including a claim for the conversion of his business and personal information stored on the computer hard drives. Natiowide countered that a conversion claim cannot be based on the misappropriation of electronic records and data because New York does not recognize a cause of action for the conversion of intangible property. The Second Circuit determined that the issue was unresolved in New York and therefore certified the following question of law to the Court of Appeals - Is a claim for the conversion of electronic data cognizable under New York law.

In reviewing the history and development of common law causes of action from "wager of battle", to trover, to conversion of tangible property, the Court held that the law has and should evolve to keep pace with the contemporary realities. It thus answered the certified question in the affirmative - that a claim for the conversion of electronic data was cognizable under New York law. The Court reasoned that the plaintiff's electronic records of customer contacts and related data had value to him regardless of whether the format in which the information was stored was tangible or intangible. And in the absence of a significant difference in the value of the information, the protections of the law should apply equally to both forms - physical and virtual.

To Reach a First Amendment Issue or Not - That is the Question

Competing First Amendment claims are sticky. Who would want to resolve them if avoidable? Apparently not a majority of the First Department yesterday in a very interesting case - Nussenzweig v diCorcia, 2007 NY Slip Op 02413.

Between 1999 and 2001, the defendant, an artist and photographer, took a series of candid photographs of passersby in Times Square, from which he chose 17 images to be included in a collection he entitled Heads. One of the selected photographs was a picture of plaintiff. A Hasidic Jew, the plaintiff was depicted wearing traditional attire. Plaintiff, like all of the other candid subjects, was completely unaware that his image had been captured. Thereafter, between September 6 and October 13, 2001, plaintiff's photograph was displayed in an exhibition of the Heads portraits in an art gallery engaged in displaying and selling pictures and photographs. In connection with the exhibition, the gallery, also distributed a catalog containing full-page reproductions of all the photographs in the Heads collection. The gallery sold, on behalf of the defendant, an edition of 10 original 40- by 60-inch prints of plaintiff's portrait priced at between $20,000 and $30,000 each. The exhibition and sale of the Heads series received considerable coverage in the media, and a number of the photographs, including that of plaintiff, were reproduced in the local and national press as well as in art galleries and publications as late as 2005. The complaint, filed in June 2005 sought damages for the unauthorized use of plaintiff's likeness under Civil Rights Law § 51, an accounting in aid of computing damages, and a permanent injunction against the further use and sale of the photograph of the plaintiff.

The defendant moved to dismiss the complaint as barred by the one-year statute of limitations applicable to an action for violation of the statutory right to privacy (CPLR 215[3]), and for summary judgment and failure to state a cause of action. With respect to the latter grounds, the defendant had argued that as his photograph of the plaintiff and its display involved a literary and artistic expression it was protected by the First Amendment. To counter this argument, the plaintiff had argued that the use of his photograph interfered with his First Amendment constitutional right to practice his religion. How so? - well as a member of a particular sect, the plaintiff did not believe that his photograph should be used for commercial or public purposes and violated his belief in the Second Commandment's biblical proscription against the worship of graven images. Also, the plaintiff argued that the privacy rights afforded to him by Civil Rights Law § 51 inherently related to the First Amendment right to freedom of expression. What great claims! Where to begin to resolve these issues?

Well, a majority of the First Department decided not to. The Supreme Court had dismissed the action as barred by the one year statute of limitations of CPLR 215(3).  The photographs were first displayed in 2001 and the plaintiff did not commence the action until. 2005. The First Department agreed with this resolution. Although though the plaintiff had argued that since the photographs continued to be displayed until 2005, and thus fell within the "continuous wrongs doctrine," the Court stated that it followed the single publication rule (see, Costanza v Seinfeld, 279 AD2d 255 [First Department, 2001]), and thus, the statute began to run when the plaintiff's photograph was first published in 2001. The majority of the Court chose not to reach the First Amendment issues stating that a court should not decide a case on constitutional grounds where it can be resolved on nonconstitutional grounds. The majority stated that if leave to appeal was granted by the Court of Appeals and it decided the statute of limitations issue in plaintiff's favor, it could itself address the constitutional question. There was a concurring opinion by Justice Tom (joined by Justice Malone) which reached the constitutional issues in favor of the defendant.

Will the Court of Appeals grant leave to appeal?  I believe there is a good likelihood. There does seem to a conflict in the Departments as to when the statute begins to run.  The Second Department has held that the statute of limitation in a privacy action runs from the last publication of a photograph (see, Russo v Huntington Town House, 184 AD2d 627 [Second Department, 1992]). Stay tuned.