New York Legal Update

City Is Immune To Negligent Infliction of Emotional Distress Claim for ACS Investigation

New York City's Administration for Children's Services (ACS) investigates reports abuse or neglect of children. To what extent is ACS immune to civil law suits based on its investigations and resulting actions? Some answers were provided by the First Department in Carossia v City of New York, 2007 NY Slip 03741. In that case, ACS had commenced an investigation which resulted in a child being removed from the care of his parents and the filing of a Family Court petition against the parents. As a result, the parents commenced an action against the City for defamation and negligent infliction of emotional distress. The First Department found that the City should have been granted a directed verdict dismissing the negligent infliction of emotional distress claim. The Court stated that ACS's actions involved the exercise of discretion of a judicial or quasi-judicial nature and thus was entitled to absolute immunity. It stated that the ACS case-worker was presented with serious allegations of child sexual abuse, and although the case worker's actions were "far from exemplary," there was no showing of bad faith, or that the case worker failed to exercise "even slight care" or exhibited a "complete disregard for the rights and safety of others." With regard to the defamation claim, since the complained-of statements were made solely in the Family Court petition they were also entitled to absolute judicial immunity.    

Information Contained in September 11th 911 Calls Ordered Redacted

In Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, the Court of Appeals prohibited the disclosure of, in a Freedom of Information Act proceeding, the words of 911 callers during the September 11th terrorist attacks on the World Trade Center. On last Thursday, the First Department extended this ruling in Matter of New York Times Co. v Regenhard, 2007 NY Slip Op 03726. Apparently some of the 911 tapes included the repetition, by the 911 operators for purposes of confirmation, of identifying information provided by the 911 caller. It was this information, the repeated information by the 911 operators, that that was sought to be disclosed in the proceeding before the First Department. In reversing the Supreme Court, the First Department found that this repeated information should also be redacted. The First Department stated that the distinction between the callers' words and their repetition by a 911 operator was not legally significant, and that redaction of the repeated information was consistent with the intent of the Court of Appeals decision. It also stated that the survivors' compelling interest in preserving the privacy of their loved ones' final moments outweighed any countervailing public interest in disclosure.

Spitzer Proposes Legislation To Strengthen Abortion Rights

Governor Spitzer announced on Wednesday plans to submit legislation that will update New York's laws pertaining to reproductive rights and establish a fundamental, statutory right to privacy for women in making personal reproductive decisions. The bill would enact the “Reproductive Health and Privacy Protection Act” under the Public Health Law. Additionally, it would amend or repeal various statutes to ensure that New York Law protects a woman’s right to choose the course of her pregnancy, and the right of all New Yorkers to use or refuse contraceptives. In his press release Governor Spitzer said, “Basic respect for legal precedent, a sound understanding of scientifically-grounded medicine, and the unequivocal belief that private medical decisions should be left to the women facing them, dictate that we must reaffirm our commitment to a woman’s right to choose. In the wake of the recent United States Supreme Court ruling, this legislation is a necessary measure to ensure that a woman’s fundamental right to privacy in New York is protected at all costs, and not beholden to either archaic state statutes or an overreaching federal government.” The legislation will purportedly allow late-term abortions when necessary to protect a woman's health and would ensure the right of all New Yorkers to use or refuse contraceptives. Click here for the Governor's press release. 

Court of Appeals Reverses Second Department In People v Kozlow

In People v Kozlow, 31 AD3d 788, the Second Department held that the former Penal Law § 235.22(1) - Disseminating Indecent Material to Minors in the First Degree - required the sending of "visual" sexual images of sexual conduct since that statute used the word "depict" in proscribing such computer communication with minors. Yesterday, the Court of Appeals reversed this finding - People v Kozlow, 2007 NY Slip 03592. The Court of Appeals found that the ordinary meaning of the word "depict" also included within its meaning "to represent or portray in words." The Court also found that there was nothing in the legislative history to suggest that it was limited to the use of visual images. On the contrary, the Court found that it was clear that the legislators intended to criminalize the activities of adults who engage minors in "sexually infused communication." [NOTE: Penal Law § 235.22(1) has since been amended to additionally proscribe sexual communication which "describes, either in words or images" such communication.

Civil Rights Lawyer Lynne Stewart Disbarred After Conviction For Aiding Terror Client

Convicted civil rights attorney Lynne Stewart was disbarred by the First Department on Tuesday stemming from her convictions in 2005 for helping imprisoned Sheikh Omar Abdel-Rahman communicate with his terrorist followers (Matter of Stewart, 2007 NY Slip Op 03590). Stewart was convicted of one count each of conspiracy to defraud the United States, conspiracy to provide and conceal material support to terrorist activity and providing and concealing material support to terrorist activity. She also was convicted of two counts of making false statements [18 USC §  1001]. The First Department denied Lynne Stewart's request to voluntarily resign from the practice of law. Her request to resign was in a letter dated Nov. 14, 2006, after she was convicted, and therefore could not be accepted, the court said. The First Department found that the federal convictions of making a false statement were analogous to Penal Law § 175.35 - offering a false instrument for filing in the first degree. Stewart was sentenced to 28 months in prison, but she has been permitted her to remain free pending federal appeal.

First Department Advises Trial Bench To Allow Objections During Summation

Trial courts generally have broad discretion in the manner in which trials are conducted. Nevertheless, the First Department yesterday went out of its way yesterday in Binder v Miller, 2007 NY Slip Op 03560 to advise the trial bench to allow objections during summations. The case involved a dental malpractice action. At some point, the trial judge directed counsel that, "there is to be no objecting in the middle of summations." Although the trial judge's statement had no bearing on the outcome of the appeal, the First Department found such a blanket prohibition to be inappropriate. The Court stated, "it is axiomatic that where counsel, in summing up, exceeds the bounds of legal propriety, it is the duty of opposing counsel, inter alia, to object specifically, to point out the language deemed objectionable, and to request the court to rule on the objection, admonish counsel to desist from such improper remarks, and direct the jury at the appropriate time to disregard such improper statements." So . .  trial counsel out there - object away. The First Department is behind you.

Spitzer Reportedly To Introduce Same-Sex Marriage Legislation

Various reports indicate that Governor Spitzer plans to introduce a bill to legalize same-sex marriage in the state in the next few weeks. By doing so, Spitzer will reportedly fulfill a campaign promise he made last October in his run for governor. For additional information see The New York Times Article and a Post in Jurist.

Utility May Be Held Liable For Wrongful Death For Failure To Provide Gas Service

In Public Service Law § 30, the Legislature declared that it was the policy of the state that "continued provision of gas, electric and steam service to residential customers without . . . lengthy delays is necessary for the preservation of the health and general welfare and is in the public interest." If there is such a lengthy delay and you freeze to death in your apartment, can a utility be liable for wrongful death? Yes, says the Fourth Department in Fordham-coleman v National Fuel Gas Distrib. Corp, 2007 NY Slip Op 03368. In brief, the facts were as follows. On February 19, 2001, the body of a 58-year-old woman was discovered in her unheated residence at 227 Burgard Place in the City of Buffalo. The Chief Medical Examiner subsequently determined that the cause of death was hypothermia. The decedent's daughter commenced an action seeking damages for decedent's wrongful death and conscious pain and suffering alleging that the decedent's death was caused by the failure of defendant National Fuel to provide gas service to decedent, leaving her without a source of heat for her residence.

In November 2000 the decedent had made arrangements to move to 227 Burgard Place. On November 16th she telephoned National Fuel to transfer service from her former residence to her new residence to be effective November 21st. As a result of decedent's telephone call, National Fuel generated a work order. On November 21st, a major snow storm struck Buffalo, and National Fuel was unable to complete the transfer. A week later, on November 29th, decedent remained without gas service at her new residence. She went to National Fuel's consumer assistance center that day and spoke to a consumer business representative (CBR). The CBR mistakenly treated decedent as a new customer, and a new work order was generated by National Fuel. The CBR advised decedent that her application for service would be denied based upon an unsatisfied judgment from 1997. The CBR also provided decedent with a written "Notice of Residential Service Denial" (Notice of Denial). After decedent spoke to the CBR on November 29th, she went from National Fuel's consumer assistance center to the Home Energy Assistance Program (HEAP) office at the Erie County Department of Social Services (DSS). Decedent received a combined basic and emergency HEAP payment and returned to National Fuel's consumer assistance center, again seeking service for 227 Burgard Place. The same CBR advised decedent that National Fuel would not provide her with service because the amount of the unsatisfied 1997 judgment exceeded the HEAP payment. No further action was taken by National Fuel with respect to decedent's repeated requests for service until December 13th, when a third work order was generated to ascertain the status of the original work order. On that date the second work order, which had been generated as the result of decedent's application at the consumer assistance center, was canceled. In response to the third work order, a National Fuel service person went to 227 Burgard Place on December 14th. When he arrived there, however, he discovered that there was no gas meter for decedent's residence, and he therefore was unable to activate service. On December 20th, National Fuel sent a letter to decedent at 227 Burgard Place, directing her to schedule an appointment to activate her gas service. It was not clear on the record where decedent was residing following her first request for gas service at her new residence in mid-November 2000, and it appeared that she had stayed with friends during portions of the three ensuing months. Nevertheless, the decedent's body was discovered in the apartment by her landlord on February 19, 2001. Gas service had never been activated and the residence was unheated.

In moving for summary judgment, National Fuel claimed that its actions were not a proximate cause of decedent's alleged injuries and death but, rather, merely furnished "the condition or occasion" for the injuries and death. In reversing the Supreme Court which granted summary judgment to National Fuel, the Fourth Department disagreed. The Court found that the evidence was sufficient to establish prima facie that National Fuel was negligent and that its negligence was a substantial cause of decedent's injuries and death. It stated that the evidence supported the plaintiff's allegations that National Fuel was negligent based on the violation of its obligations under the Public Service Law, the corresponding regulations, and its own procedures by denying the application of decedent for continuing service at her new residence (see Public Service Law § 31 [3]; 16 NYCRR 11.3 [a] [5]), and based on its failure to initiate service within five days of decedent's original request for gas service or within a reasonable period thereafter, allowing for delays occasioned by the snow storm (see Public Service Law § 31 [5]; 16 NYCRR 11.3 [a] [4]). The Court also rejected National Fuel's contention that decedent's death was avoidable, because she could have chosen to reside elsewhere, she could have pursued her remedies under the Public Service Law, and she could have made greater efforts to obtain public assistance benefits. Furthermore, the Fourth Department found that there was a question of fact as to whether National Fuel's conduct constituted willful or wanton negligence or recklessness so as to justify punitive damages. Thus, the matter would proceed to trial. [Note: The Fourth Department also rejected a Statute of Limitations claims]

Untimely Fraud Action Also Found To Be Frivolous

Litigants are warned that if they commence an untimely fraud action, it may also found to be frivolous. The following situation occurred in Transaero, Inc. v Biri Assoc. Corp., 2007 NY Slip Op 03293. In April 2003 the plaintiff, commenced an action against its attorney, Robert Costello, alleging that he unlawfully and fraudulently obtained a brokerage commission on the sale of an insurance policy to the plaintiff in 1996. The complaint in that action, which was verified by its president and sole shareholder Perry Youngwall, on April 22, 2003, alleged that the plaintiff and Youngwall did not know or have any reason to know that Robert Costello had earned a commission on the sale of the insurance policy "until late 2001." Then in July 2005, the plaintiff commenced the action at issue against members of Costello's family alleging that they conspired in 1996 with Robert Costello "in a scheme to obtain unlawful broker commissions" in connection with the sale of the very same insurance policy. The Second Department agreed with the Supreme Court that the action was time barred as the alleged fraud occurred in 1996, almost 9 years prior to the commencement of the suit (CPLR 213[8]). In addition, the Second Department also agreed with the Supreme Court that the action was frivolous. The Second Department rejected the plaintiff's attempt to argue that it had no reason, until 2005, "to suspect any impropriety" on the part of the Costello family, as such arguments flew in the face of allegations made by Youngwall in the 2003 litigation. The Second Department took the further step to find that appeal itself was frivolous. While the Second Department noted that there were "unusual circumstances" present to justify the finding of frivolous conduct, one should always be cautious in commencing actions which are clearly untimely.

Equitable Estoppel Did Not Prevent Cigarette Manufacturers From Asserting Three Year Statute of Limitations

A common defense used by cigarette manufacturers in suits alleging that their products cause cancer is the statute of limitations. In New York, that statute of limitations would be three years (CPLR 214-c). Equitable estoppel is a doctrine which can prevent a defendant from raising a statute of limitations where the plaintiff was induced by the defendant's fraud, misrepresentations or deception to refrain from filing a timely action and the plaintiff reasonably relied on the defendant's misrepresentations. To invoke equitable estoppel, the plaintiff has to establish that subsequent and specific actions by the defendant somehow kept him from timely bringing suit. Yesterday, the Third Department rejected a plaintiff's attempt to invoke equitable estoppel against various cigarette manufacturers in Robare v Fortune Brands, Inc., 2007  NY Slip Op 03228. The plaintiff was a smoker from 1961 when he was about 10 years of age to 1991, when he was first diagnosed with and operated on for throat cancer. He commenced numerous causes of action in August 1997 asserting liability against defendant cigarette manufacturers. The defendants of course asserted the three year statute of limitations. In attempting to invoke the equitable estoppel doctrine, the plaintiff claimed that in mid-April 1994, he read a newspaper article or saw a television program concerning the now infamous testimony of several cigarette company executives, before a Congressional committee, that cigarette smoking was not addictive. In addition, he claimed that in March 1997, he read a newspaper account of the settlement of numerous claims by one of the defendants which suggested that cigarette company executives had lied about the addictive nature of cigarettes. The Third Department rejected these bases. The Court found that the plaintiff had timely awareness of the facts requiring him to make further inquiry before the statute of limitations expired by the date of his surgery. In addition, he could not rely on the April 1994 article in light of his admission that he knew his cancer was caused by smoking cigarettes long before he read the article. Furthermore, he was not aided by defendants' representations before a Congressional committee because that testimony constituted mere denials of wrongdoing. Finally, to the extent that there was any concealment, the plaintiff has not demonstrated the existence of any fiduciary relationship with defendants that differed in kind or degree from defendants' relationship with others generally.