Monday, January 30, 2023

New trial ordered in gang case because of faulty voir dire

The Court of Appeals almost never reverses a criminal conviction on the basis that the trial court did not properly conduct voir dire in assessing the suitability of potential jurors to sit in the cases. The trial judge enjoys substantial discretion in managing this phase of the trial. But in this case the Second Circuit reverses because the judge did not ask questions that would determine if potential jurors held any preconcieved notions about criminal gangs.

The case is United States v. Nieves, issued on January 26. Defendant was convicted of witness intimidation. As this case involves gang members, defendant's lawyer wanted Judge Rakoff to ask potential jurors for bias against gang members. Judge Rakoff declined that request and instead mostly asked where the potential jurors lived, whether they have a significant other and if so what their loved one does for a living. Like other judges, the trial judge here also asked potential jurors about their kids. Voir dire in federal court is usually brief and does not tell the trial lawyers much about the jurors who will hear the case. The trial court said it does not ask "attitudinal questions" that might invade anyone's privacy during voir dire. But again, convictions are almost never overturned on the basis of faulty voir dire. 

I note that Judge Rakoff also said on the record that he will not ask potential jurors questions about whether they read the New York Times or what is their favorite newspaper, as these questions also intrude on juror privacy. Other judges have asked questions like this in my experience and they give is a better sense of who the potential juror is. Questions about news sources and political opinions are not part of the Second Circuit's holding in this case.

As cursory as voir dire frequently is, trial judges are required to screen potential jurors for bias.  The Court (Lynch, Lee and Robinson) writes, "It is within a judge’s discretion to decide whether or not to ask questions that elicit jurors’ general attitudes about political or social questions, permitting counsel to speculate about jurors’ reactions to the evidence in a case when allocating their peremptory challenges. But where the “attitude” in question is a bias or predisposition for or against one side or the other, and particularly where key evidence targets the subject of that bias or predisposition, it is the judge’s responsibility to make some inquiry. Prospective jurors have no right to keep those attitudes private."

The Second Circuit breaks new ground in this case in holding that Judge Rakoff should have inquired about potential juror bias about gangs. The Court holds that "(1) prejudice against people associated with gangs represented a pervasive bias relevant to a key dynamic likely to arise at trial, and (2) the district court neglected to 'inquire about, or warn against,' that bias." In support of this holding, Judge Lynch (an expert on criminal law) noted that news reports at the time of this trial focused on a recent spike in violent crime that law enforcement had attributed to gang violence. That increased the risk of prejudice against gang members among prospective jurors. 

This holding is rare, but it will not lead to more conviction reversals in other voir dire challenges. The panel says this may be the first time the Court has ever reversed a conviction on this basis. What this case does is require trial judges to ask more questions about potential juror bias against gang members in gang cases.

Thursday, January 26, 2023

First Department Reinstates Racial Discrimination Claim by Black Former Manager at Famed Carlo's Bakery


New York Law Journal

By Jason Grant

January 26, 2021

 In a reversal of the lower court, a state appeals court has reinstated a claim for racial employment discrimination leveled by a Black former assistant manager against the hugely popular Carlo’s Bakery location near Times Square and that store’s senior general manager.

The reinstatement of the state law and city law-based claim comes despite the plaintiff apparently mislabeling her lawsuit’s discrimination cause of action as one rooted in a “hostile workplace,” when her complaint describes a single incident and a next-day firing.

Wrote a unanimous panel of the Appellate Division, First Department court in reinstating Chontay Kirby’s first and only cause of action for discrimination in her 11-page complaint, “Although plaintiff’s first cause of action is labeled as one for ‘hostile workplace,’” the lower court “was not bound by that designation and plaintiff has sufficiently stated a cause of action for employment discrimination under both the New York State and New York City Human Rights Laws,” citing Matter of Local 621 v New York City Dept. of Transp., 178 AD3d 78 and Vig v New York Hairspray Co., L.P., 67 AD3d 140.

According to Kirby’s lawsuit complaint, which shows it was filed on her behalf by the Law Offices of James F. Sullivan in Manhattan, she made a call on Nov. 4, 2020, to human resources for the Carlo’s Bakery Times Square store at 42nd Street and Eighth Avenue in Manhattan. (The larger Carlo’s Bakery organization is today a successful national chain of dessert shops associated with food television’s “Cake Boss,” Bartolo ”Buddy” Valastro Jr. It appears Kirby’s lawsuit is brought only against the chain’s Times Square location, named as defendant Carlo’s Bakery 42nd & 8th LLC.)

At the time, Kirby had been working as a manager at the Times Square store for about a year, says the complaint, and she decided to phone H.R. to ask for clarification about “what to do,” after her direct supervisor gave very little information when she’d asked him for instructions about how to handle pick-up orders that remained in store at closing time.

That same day, Kirby allegedly got a call from her supervisor, the lawsuit’s named individual defendant, John Pernini, and he allegedly said to her over the phone, in part, ”Why did you call HR? Blacks…I should have never hired her,” according to Kirby’s 2021-filed complaint.

The next day, on Nov. 5, 2020, Kirby was “feeling uneasy regarding her conversation” with senior general manager Pernini, and she called out sick. Pernini then allegedly sent a text to Kirby that day “informing her that she needed to call Human Resources,” and “upon calling Human Resources, [she] was informed that she was being terminated allegedly due to her calling in sick,” the complaint said.

In reversing Manhattan Supreme Court Justice Nancy Bannon’s 2022 decision that had dismissed Kirby’s employment-discrimination cause of action, the five-justice First Department appellate panel detailed why Kirby had “sufficiently stated a cause of action for employment discrimination” under state and New York City law such that the claim shouldn’t have been tossed out at the motion-to-dismiss stage.

The Appellate Division, First Department courthouse in Manhattan (Photo by David Handschuh/NYLJ)

“Plaintiff [Kirby] alleges that she is a member of a protected class; that she was qualified for the position by, among other things, having a decade of experience in leadership roles; and that she was subject to an adverse employment action under circumstances giving rise to an inference of discrimination,” the panel wrote, citing Moore v Bronx-Lebanon Hosp., 50 AD3d 286.

“Specifically, plaintiff, a Black woman, alleges that her supervisor, defendant John Pernini, irritated that she had telephoned Human Resources for advice, allegedly stated to her the night before her termination, ‘Why did you call HR? Blacks . . . I should have never hired her.’” the panel said.

The panel, comprised of Justices Rolando Acosta, Troy K. Webber, Peter Moulton, Martin Shulman and John Higgitt, also reversed Bannon’s ruling to the extent it had dismissed three other claims in Kirby’s lawsuit, all for various alleged Carlo’s Bakery and Pernini violations of state Labor Law.

“Affording plaintiff [Kirby] the benefit of every possible favorable inference, we find that she has sufficiently stated a claim for unpaid overtime under the Labor Law by alleging that she worked more than 40 hours per week and that defendants never paid her for the overtime,” wrote the justices.

They also said, “Plaintiff’s claim based on defendants’ failure to pay her weekly also is sufficiently pleaded, as she alleges that she was a nonexempt employee under Labor Law § 190, and that defendants were required to pay her each week as a manual worker under New York Labor Law § 191.”

The panel further wrote that Kirby “states a claim based on defendants’ failure to give her a wage notice in accordance with Labor Law § 195(1)(a) by alleging that defendants failed to give her a notice apprising her of her regular pay day.”

Bannon, in her March 2022 decision dismissing four of the Kirby lawsuit claims, issued a terse opinion that “granted” dismissal of the claims “for the reasons stated in the defendants’ motion papers.”

In a memorandum in support of dismissal filed by the defendants, they’d argued, in part, “In conjuring breaches and slights against her, Kirby asserts, further, a cause of action for a hostile work environment … Such a cause of action is premised upon an allegation that she was subjected to a single comment made by her immediate superior … and thereafter chose not to return to work.

“In concocting this narrative,” continued the memorandum, “Kirby has demonstrably failed to plead any pervasive or systematic behavior or comments by her employers to give rise to any inference of a hostile work environment,” adding that “the one incident alleged with any degree of specificity, a supposed one-time lone ‘racial’ comment made to Plaintiff by her immediate superior, is nothing more than conclusory and is insufficient to support a claim of a hostile work environment or any other kind of race discrimination.”

Bannon denied a fifth and final lawsuit claim from Kirby that alleged a failure to provide her with accurate wage statements under the Labor Law.

Stephen Bergstein of Bergstein and Ullrich in New Paltz represented Kirby in the appeal, according to the First Department opinion. He couldn’t be reached for comment.

Joseph Dimitrov, an attorney at Litchfield Cavo, was counsel to Carlo’s Bakery 42nd & 8th LLC and Pernini in the appeal. He also couldn’t be reached.

Wednesday, January 25, 2023

Summary judgment sustained for scaffold-injury plaintiff

The Appellate Division has sustained the grant of summary judgment to the plaintiff in a scaffolding case, holding that any dispute about the nature of the plaintiff's damages do not speak to liability to but to damages and will be resolved at a damages hearing.

The case is Sangare v. 985 Bruckner Boulevard, issued on January 24. I briefed and argued the appeal. The case is being litigated at the trial level by James Sullivan, Esq., of New York City. The New York scaffolding law requires property owners to provide employees protection against falling scaffolds as well as any gravity-related accidents that might result from poorly-secured scaffolds. That would include falling bricks, two-by-fours and other objects. Supreme Court, Bronx County, granted plaintiff's motion for summary judgment because there was no dispute that he was injured when wooden planks fell from a scaffold, hitting plaintiff in the head (he was wearing a hard-hat). 

In opposition to the summary judgment motion, and on appeal, defendants argued that plaintiff cannot prevail on liability because, in order to win the case, the plaintiff has to show his damages resulted from the accident. The logic was that since plaintiff's back injury might have been caused by something else, he cannot win on liability as a matter of law. The problem with that argument is that the First Department held in Gramigna v. Morse Diesel, 210 A.D.2d 115 (1st Dept., 1994), that arguments like defendant's are really for the jury and that the plaintiff can win summary judgment on liability if there is no dispute that the accident happened and something went afoul with the scaffold. The problem with Gramigna is that the case is nearly 30 years old and, since that time, the courts have not cited it for that proposition. Having a case on all-fours is all well and good, but courts sometimes view older cases differently over time and maybe the First Department will think the case was outdated. At  least that was my worry.

The First Department, however, cited Gramigna in affirming summary judgment for the plaintiff in this case. So Gramigna has been reaffirmed nearly 30 years later. Here is the First Department's reasoning: "Defendants’ argument that all or some of the injuries pled were not caused by the subject accident is not an issue of liability, but rather an issue of damages, which remains unresolved The dispute concerning damages does not raise credibility issues relative to the issue of liability where plaintiff gave no inconsistent version of how the accident occurred nor is there any evidence contradicting the allegation that the scaffold collapsed."

Tuesday, January 24, 2023

Second Circuit asks State Court of Appeals for guidance on State and City Human Rights Law

The Second Circuit is asking the New York Court of Appeals to interpret the New York State and City Human Rights Laws on an esoteric issue that no one seems to have definitively resolved just yet.

The case is Syeed v. Bloomberg LP, issued on January 23. The Second Circuit from time to time asks the state's highest court to interpret a state or city law so the state judges, who are presumably more familiar with the issue, can provide their unique guidance. The federal judges do not want to resolve unsettled state and city issues without giving the State Court of Appeals a chance to weigh in on the issue. This is one such case.

The issue is the scope of the New York State and City Human Rights Laws, which provide far greater employee protections than federal employment discrimination statutes. Plaintiff in this case obtained a position with Bloomberg LP's Washington, D.C., office as a news reporter. In 2018, she applied to work at Bloomberg's New York City office. She was denied the position, which was offered to a male candidate. Someone at the company told plaintiff that her position was not designated as a "diversity slot." After complaining to management that the company had a racist and sexist culture, plaintiff quit her job.

Plaintiff wants to proceed under the State and City laws, but Bloomberg argues that she cannot because she did not feel the impact of any discrimination in New York City or New York State. That argument stems from a New York State Court of Appeals ruling, Hoffman v. Parade Publications, 15 N.Y.3d 285 (2010), which said the employment discrimination plaintiff who worked and lived in Georgia could not get relief under the City law even though he worked for a New York City company. The State Court of Appeals ruled that way based on the City law's legislative history, which emphasized that the City law protects the City's inhabitants.

The question now is whether Hoffman precludes plaintiff in the Bloomberg case from invoking the state and city law where, but for the employer's discriminatory conduct, she would have worked in New York City or New York State. This issue has particular relevance in failure-to-hire and failure-to-promote cases. While the Second Circuit (Jacobs, Sullivan and Perez) looked for guidance in state appellate rulings on this issue, it found nothing that clearly points in one direction or another. The Circuit has look around for this guidance  before it asks the State Court of Appeals to intervene, as the state judges are busy enough and have their own problems to worry about.

A footnote to this case points out that a case I argued a few years ago touched on this issue, but that was not a binding precedential ruling but a non-binding summary order. See Ware v. L-3 Vertex Aerospace, LLC, 833 F. App’x 357, 358–59 (2d Cir. 2020) (in a hostile-work-environment and retaliatory-termination case, holding that a plaintiff who was a Florida resident, worked as a supply technician in Afghanistan, and signed an employment agreement with a Mississippi choice-of-law provision, did not satisfy the NYCHRL or NYSHRL impact requirement by virtue of his employer’s parent company being headquartered in New York). 

Once the State Court of Appeals issues a ruling on this issue, the Second Circuit will apply that reasoning to the Bloomberg case and this issue will be settled once and for all.

Monday, January 23, 2023

Sexist comment not enough to win discriminatory discharge case

This case shows how a discriminatory comment by a supervisor does not necessarily mean an aggrieved plaintiff will win her case. The plaintiff sues for gender discrimination and retaliation for seeking medical leave. Her request for medical leave was met with an insensitive comment and she was ultimately fired. Plaintiff still loses the case on summary judgment

The case is Willford v. United Airlines, Inc., a summary order issued on January 19. Plaintiff was a flight attendant who was undergoing treatment for in-vitro fertilization. She was based at Dulles Airport in Washington, D.C., and requested a transfer to the New York City area, where she was undergoing the IVF treatment. Supervisor Waterman told plaintiff that if she "wanted to take time off to be a mother, then this wasn't the job for [her] and [she] should quit." If Waterman said this, that would be the last thing to say to an employee who wants medical leave. A few months later, plaintiff was fired after the airline determined that plaintiff had abused her sick leave. Waterman played a role in plaintiff's termination, but the ultimate decision to terminate was made by the Dulles Base Director, Panos, who held an internal hearing on the issue and found against plaintiff.

As plaintiff argues she did nothing wrong in using her sick leave, she argues that Waterman's role in her termination proves this was an unlawful personnel decision. But that is not how the Court of Appeals (Sack, Nathan and Jacobs) sees it, and it affirms the grant of summary judgment. While Panos made the ultimate decision to fire plaintiff, the impermissible bias of anyone during the decisiomaking process can make the ultimate decision illegal. That's the rule in Bickerstaff v. Vassar College, 196 F.3d 435 (2d Cir. 1999). I need not remind you that Bickerstaff is a great case for plaintiffs who are trying to prove discrimination infected a multi-tiered termination process.

Since Waterman conducted the initial investigation into plaintiff's use of sick leave, Bickerstaff is a useful case for plaintiff. But Bickerstaff does not save the case, though, because the investigation into plaintiff's alleged misuse of FMLA leave was initiated by someone else. Waterman only took action against plaintiff when someone else at the airline flagged plaintiff as a potential sick leave abuser. In addition, in terminating plaintiff, Panos did not passively accept Waterman's recommendation against plaintiff. Instead, Panos conducted an independent unbiased factfinding inquiry into plaintiff's alleged misuse of FMLA leave. That severs any causal link between Waterman's allegedly biased investigation and plaintiff's termination.

Monday, January 16, 2023

Probable cause for the officers who arrested plaintiff on sexual touching charges

This case reminds us once again how difficult it is to maintain a false arrest claim even when the underlying criminal charges are dismissed following a trial in criminal court. The victorious defendant still has to show the police officers lacked probable cause to make the arrest. This plaintiff cannot do so.

The case is Keyes v. City of New York, a summary order issued on January 13. Plaintiff was arrested and charged with forcible touching and third-degree sex abuse after police officers claimed to see him touching numerous womens' buttocks on the sidewalk in New York City. The criminal court judge dismissed the charges following a bench trial. That led plaintiff to file this false arrest case.

Plaintiff said he touched no one. But the arresting officers "each testified to separately following Keyes after he caught their attention by walking very closely to female pedestrians and appearing to look at their waistlines, creating a concern that he was pickpocketing.  According to both officers, they observed, from different vantage points, that Keyes was touching the buttocks of multiple women." While, the Court of Appeals notes, plaintiff testified that he did not touch any of the women, "Keyes has submitted no evidence that disputed the officers’ testimony that he walked closely behind multiple women even though there was room on the sidewalk for him to maintain more distance." Moreover, the Court (Bianco, Sack and Nathan) says, "although Keyes denied touching the women, he never testified to where his hands were while he walked closely behind these women, and it is thus uncontroverted that, at the very least, his hands were in close proximity to the women’s backsides. In other words, these uncontroverted facts were sufficient to establish probable cause for his arrest, even if the officers ultimately were mistaken in their observations."

This is how probable cause works under Section 1983. The police officers are allowed to get it wrong so long as they reasonably believed you committed an offense. Their version of some of the facts, which plaintiff does not controvert, is close enough. They reasonably thought plaintiff was touching womens' buttocks, even though he claims he was not. While the factual disputes were enough to ensure plaintiff's acquittal in criminal court, he cannot recover any damages in civil court.

Friday, January 13, 2023

Appellate Division reinstates racial discrimination claim

In this case, the plaintiff worked for a bakery. She went over her supervisor's head and spoke to Human Resources about a work-related issue. Her supervisor was offended at this gesture and made a racial comment. Plaintiff is Black. She was fired shortly thereafter. The trial court dismissed the case under CPLR 3211, but the Court of Appeals has reinstated the case.

The case is Kirby v. Carlo's Bakery, issued on January 10. I argued the appeal. Under the CPLR (and federal practice), defendants often try to have the case dismissed before the parties litigate the facts in discovery. They can do this if the complaint, on its face, does not assert a claim. That's what happened here, and Supreme Court dismissed the case without any legal analysis, simply stating that it was granting the motion to dismiss for the reasons set forth in the defendant's brief. 

The First Department summarizes the case this way: "when plaintiff's supervisor, Pernini, found out she went to HR, he said this to plaintiff: plaintiff, a Black woman, alleges that her supervisor, defendant John
Pernini, irritated that she had telephoned Human Resources for advice, allegedly stated to her the night before her termination, 'Why did you call HR? Blacks . . . I should have never hired her.'” Plaintiff was fired a few days later. Defendants claimed she was fired for calling in sick, but the complaint does not concede that was the real reason. 

The case is reinstated and will proceed to discovery because plaintiff sufficiently pleads that she was fired because of her race, as Pernini's comment permits the inference that she was fired because of her race.

irritated that she had telephoned Human Resources for advice, allegedly stated to her the night before her termination, “Why did you call HR? Blacks ... I should have never hired her.”

Kirby v. Carlo's Bakery 42nd & 8th LLC, No. 17044, 2023 WL 138854, at *1 (N.Y. App. Div. Jan. 10, 2023)
irritated that she had telephoned Human Resources for advice, allegedly stated to her the night before her termination, “Why did you call HR? Blacks ... I should have never hired her.”

Kirby v. Carlo's Bakery 42nd & 8th LLC, No. 17044, 2023 WL 138854, at *1 (N.Y. App. Div. Jan. 10, 2023)

Thursday, January 12, 2023

Appellate Division recognizes whistleblower claim in COVID-19 health dispute

The Appellate Division has held that an employee may bring a private-employer whistleblower claim under state law where he was fired after complaining that his boss's son had entered the workplace during the early COVID-19 period without a mask or any social distancing. 

The case is Lawlor v. Wymbs, Inc, issued on January 10. I briefed and argued the appeal. 

Under Labor Law 740, the whistleblower law, you cannot get fired for objecting to management about a specific threat to public health and safety. Under the statute that was in effect at the time, "[a]n employer shall not take any retaliatory personnel action against an employee because such employee . . . discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation" and that "creates and presents a substantial and specific danger to the public health or safety." The statute also prohibits retaliation where the employee "objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation." 

At the height of the COVID-19 crisis, Lawlor was fired after he complained to his boss, that a non-employee was repeatedly entering the workplace without taking precautions to prevent the spread of COVID-19. This individual, the boss's son, was neither wearing a mask nor socially-distancing, just as the virus was filling up hospitals with sick patients and causing an unfathomable number of deaths. The  son thus placed at risk everyone who worked in the building, as well as their families, neighbors, and others in the community. Rather than take Plaintiff's concerns seriously, the boss fired Plaintiff, telling him, "fuck you" and "this pissed me off to no end."

Does Plaintiff have a case? Supreme Court said he does, and the Appellate Division affirms. The employer argued that Plaintiff cannot win because he did not object to the violation of any laws or regulations, and that the Governor's Executive Orders that took effect in early 2020 to deal with the COVID-19 crisis don't count since they were not statutes or regulations. The Appellate Division disagrees, stating, "the allegations that plaintiff was terminated after complaining in June 2020 about his employer’s practice of permitting a nonemployee to enter the workplace without wearing a mask or socially distancing support plaintiff’s claim that defendant 'violated various laws, rules or regulations' targeting COVID-19 safety precautions in the workplace, including Executive Order 202.8 and related executive action." 

The employer also argued that Plaintiff did not raise an objection to anything that would create a substantial and specific danger to public health. The Appellate Division, which is still requiring lawyers to wear masks in the courtroom, disagrees, stating, "It is hardly 'mere speculation' (Villarin v Rabbi Haskel Lookstein School, 96 AD3d 1, 7 [1st Dept 2012]) that, early in the COVID-19 pandemic and before vaccines were available, permitting indoor congregation without masks and without practicing social distancing would have exposed defendant’s employees (as well as their families and anyone else with whom they came in contact) to infection by a highly contagious and deadly virus."

Friday, January 6, 2023

State Court of Appeals declines to expand police liability in domestic violence cases

The New York Court of Appeals issued two rulings on the same day focusing on the "special relationship" rule that makes it difficult to sue governmental agencies when someone is injured or killed because of the government's failure to protect a victim. At this link, I discuss a case from Erie County dealing with a developmentally-disabled woman who was killed by family members after Child Protective Services and Adult Protective Services had dismissed prior reports of abuse toward the victim. This case involves the police in New York City. Same result.

The case is Howell v City of New York, issued on November 22. A special relationship exists under New York case law, in part, when the crime victim justifiably relies on police promises that they will protect her from third-party violence. The law books are filled with cases where plaintiffs could not prove any special relationship. This case examines the special duty principle under a particularly difficult and sympathetic set of facts: someone violated a court-ordered order of protection and caused serious physical injuries. If these facts do not expand the special relationship test, then nothing will. 

In this case, the victim's ex-boyfriend pushed her out of a third-story window in violation of an order of protection. Plaintiff argued that the order of protection created a special relationship between her and the police. But the Court of Appeals, in a divided vote, says plaintiff cannot prove any special relationship because she testified she had no contact with the police on the day prior to the attack, and the officers never told her that the ex-boyfriend would be arrested if he violated the order of protection. Her testimony demonstrates that she did not relax her vigilance based on any police promises that they would protect her, and the police were not on the scene or in a position to provide any assistance if necessary. Nor did the police promise to provide any such assistance at some reasonable time. 

In short, the mere existence of an order of protection does not create a special relationship, and any contrary rule would expand governmental liability in violation of the policies underscoring the special duty rule. The Court notes that nearly 200,000 such orders were issued in domestic violence cases in 2021. If we want to law to change in this area, that will have to be accomplished by the State Legislature, not the courts. 

In dissent, Judge Wilson states:

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, defendants Mosely-Lawrence and Meran, 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.

. . . 

Ms. Howell should be able to pursue her claim for damages against the City, by establishing that the City bore her a "special duty" through any of three avenues: (1) the Domestic Violence Intervention Act (DVIA) establishes a statutory special duty, and its violation by the officers provides a basis for relief; (2) a triable issue of fact exists as to whether the officers assumed positive control of a dangerous situation; and (3) a triable issue of fact exists as to whether the officers' statements and conduct established representations on which Ms. Howell justifiably relied. 

Judge Rivera also issues a passionate dissent, stating, "This appeal is a cautionary tale of the continued failures of our legal system to effectively address intimate partner violence and protect survivors, made worse by the majority decision. If, as the majority concludes, plaintiff cannot pursue her claims and test her allegations in court because the officers made it clear that they would not comply with the law, then how can—and why should—survivors trust our legal system?"

Thursday, January 5, 2023

NY Court of Appeals will not modify the "special duty" rule in municipal tort claims

A harsh reality for law students is learning that the police do not have a duty to protect you from harm by a third-party. There are exceptions to this rule, but the cases they use to teach this principle are always difficult and even heartbreaking. One exception is the "special duty" rule, which says under some circumstances the police have to protect you, but that exception is difficult to prove, and most cases asserting the special duty principle fail. This is one such difficult case.

The case is Maldovan v County of Erie, issued by the New York Court of Appeals on November 22. The facts are horrendous. The victim, Laura, was a young woman with developmental disabilities. CPS investigated an allegation that she was being abused, ultimately closing the file and determining the complaint was unfounded. A subsequent abuse complaint was investigated by Adult Protective Services, which closed out the case upon finding the allegations were unfounded. Later on, members of Laura's family tortured and murdered her. Are the county protective agencies liable for Laura's murder? The theory is that the agencies were in a position to help Laura and prevent her murder.

The county is only liable if there was a "special relationship" between Laura and the county such that the county had to protect her. You can prove such a relationship if the governmental agency, in part, caused the victim to rely on its assurances that it would protect her. Laura's estate loses the case because the county did not induce any justifiable reliance in the way it responded to Laura's complaints. The relevant factors in cases like this are found in Cuffy v. City of New York, 69 N.Y.2d 255 (1987)

The estate argued that victims like Laura, who are adults (or children) of diminished capacity, should not be required to prove justifiable reliance under Cuffy. The Court of Appeals, in a divided vote, declines to modify the special relationship test in this particular case, where the victim had a competent adult looking out for her interests. In this case, that person was Richard, the victim's brother, who called CPS and APS on Laura's behalf. As the record does not show that Richard relaxed his vigilance as a consequence of any assurances by county CPS and APS workers, there was no special relationship, and this tragic lawsuit cannot proceed. 

A long (and solitary) dissent by Judge Wilson notes that developmentally-disabled adults are often abused by family members and others, and that when these disabled adults are released from institutions, CPS and APS are obligated to ensure their safety. This case, Judge Wilson says, "immunizes the very agencies bound by law to protect vulnerable adults, when the legislature has clearly stated those agencies do not enjoy immunity from grotesque agency failures such as those turning a blind eye to Laura's horror."

Wednesday, January 4, 2023

Muslim inmate can show irreparable injury from prison laundry policy

The inmate/plaintiff in this case alleges that prison policy violates his rights under both the Free Exercise Clause and the statute that similarly protects religious freedom. The policy required plaintiff to launder his clothing with those of non-Muslim inmates who consume beef and pork products. This issue is interesting but the Court of Appeals does not address the merits, holding instead that this case is ripe for judicial review.

The case is Tripathy v. Lockwood, a summary order issued on December 19. Plaintiff says the laundry policy gives him few alternatives, such as washing his clothing by hand or going long periods of time without washing his clothing. Plaintiff sought a preliminary injunction against this policy, but the district court denied that relief, holding that he waited too long to bring the lawsuit, which means there could not have been irreparable harm to plaintiff's religious freedom rights. Was this the right call? It was not, says the Court of Appeals (Chin, Carney and Robinson), which summarizes the state of the law in this area and reminds us that religious and other constitutional freedoms are paramount.

While a delay in seeking an injunction may support a finding that the plaintiff did not suffer irreparable harm in challenging a policy, cases that stand for that proposition do not involve constitutional rights, the loss of which, even for minimal periods of time, is considered "irreparable injury" for purposes of seeking a preliminary injunction. The same is true for cases brought under the First Amendment and Religious Land Use and Institutionalized Persons Act (RLUIPA). This constitutional principle, and the fact that plaintiff as an inmate had logistical difficulties in bringing this case in the first place, suggest irreparable harm. What the Court is saying that an injunction against an unconstitutional policy is never tardy.

On remand, the Western District of New York has to decide if, apart from irreparable harm, plaintiff can show he is likely to win the case on the merits, i.e., whether the DOCCS policy violates the rights of Muslim inmates.

Monday, January 2, 2023

When does a term sheet count as the actual settlement agreement?

Courts like settlements because they clear out the docket and provide finality to the lawsuits. At the end of a successful mediation, the parties close out the day with handshakes and everyone leaves in a decent mood, though a good mediator will tell you that a desirable settlement leaves both sides feeling they got the shaft. Still, the day ends on a positive note. Things sometimes go south when the parties start to negotiate the details, many of which may have nothing to do with money and instead focus on confidentiality and other things. This case became kind of a mess and shows how a settlement agreement can cause confusion and ultimately cause the judge to just adopt the terms of the term sheet and be done with the case.

The case is Tangtiwatanapaibul v. Tom & Toon, Inc., a summary order issued on December 12. Under the written settlement term sheet that the parties agreed to in this wage and hour case, the parties were to prepare a detailed settlement agreement to formalize the deal. Over the course of the following year, the parties went back and forth on the terms of the formal agreement, each side declining to sign off on the other side's language. The magistrate judge eventually closed out the case and approved the proposed settlement under the term sheet (and not the language in the drafts that went back and forth), as per the Second Circuit's procedures in Cheeks v. Pancake House (2015), which says that judges must approve any wage and hour settlement.

Plaintiffs appeal, claiming in part that the term sheet was not an enforceable agreement. But the Court of Appeals (Kearse, Park and Perez) disagrees, noting it has held in the past that term sheets can qualify as binding settlement agreements even if the parties contemplated formalizing the agreements at a later date. We have a totality fo the circumstances analysis in cases like this, considering whether the parties expressly said they would not be bound by the term sheet, whether there was partial performance of the contract, whether the parties agreed to the terms of the alleged contract, and whether the agreement is the kind that litigants will normally commit to writing. The case for these factors is Winston v Mediafore, 777 F.2d 78 (2d Cir. 1985). 

These factors allowed the magistrate judge to adopt the term sheet as the settlement, as the parties stipulated in the term sheet that it was in fact a binding agreement as to the material terms, the parties partially performed their obligations under the term sheet by requesting the magistrate to continue jurisdiction over the case and requesting dismissal of the case post-term sheet, and defendants made some payments to plaintiffs as per the agreement. This all means the term sheet is the final settlement agreement, and the case is over.