New York Law Review

Tag: 2000

  • Skinner v. Comm’r of Educ., 94 N.Y.2d 663 (2000): Teacher Recall Rights After BOCES Takeover

    Skinner v. Comm’r of Educ., 94 N.Y.2d 663 (2000)

    A teacher whose position is abolished due to a BOCES takeover has the right to be placed on the school district’s preferred eligibility list for seven years, provided they otherwise qualify under Education Law §§ 2510(3) and 3013(3), and these recall rights are not limited by Education Law § 3014-a.

    Summary

    The New York Court of Appeals held that a teacher whose position was abolished when a BOCES (Board of Cooperative Educational Services) took over a school district program retains certain recall rights within the school district. The court reversed the Appellate Division’s order, asserting that Education Law § 3014-a, which grants seniority rights in BOCES takeovers, does not preclude additional recall rights under §§ 2510(3) and 3013(3). The case was remitted to the Supreme Court to determine if the petitioner qualifies for these additional benefits.

    Facts

    The Utica City School District abolished petitioner Skinner’s probationary teaching position when the Oneida-Herkimer-Madison BOCES took over its Alternative Educational Program. Skinner argued that he was entitled to be placed on the school district’s preferred eligibility list for future employment opportunities per Education Law §§ 2510(3) and 3013(3), in addition to the seniority rights afforded by Education Law § 3014-a.

    Procedural History

    The case originated within the administrative structure of the New York education system, likely with an appeal to the Commissioner of Education. The Appellate Division affirmed the Commissioner’s decision, which denied Skinner’s claim for additional recall rights. The New York Court of Appeals then reviewed the Appellate Division’s order.

    Issue(s)

    Whether Education Law § 3014-a, concerning seniority rights following a BOCES takeover, limits a teacher’s rights under Education Law §§ 2510(3) and 3013(3) to be placed on a school district’s preferred eligibility list when their position is abolished due to the takeover.

    Holding

    No, because § 3014-a(4) explicitly states that the section should not be construed to limit rights granted by other provisions of law; thus, the existence of rights under § 3014-a does not preclude additional recall rights under §§ 2510(3) and 3013(3).

    Court’s Reasoning

    The Court of Appeals reasoned that the Commissioner of Education and the Utica City School District incorrectly argued that § 3014-a provided the exclusive set of rights for teachers in BOCES takeover situations. The court emphasized the explicit language of § 3014-a(4), which states: “[t]his section shall in no way be construed to limit the rights of any of such employees set forth in this section granted by any other provision of law.” The Court cited prior case law, including Koch v Putnam-Northern Westchester Bd. of Coop. Educ. Servs., to support its interpretation that teachers may have rights under both § 3014-a and §§ 2510(3) and 3013(3). The court clarified that a teacher whose position is abolished during a BOCES takeover has the right to be placed on the school district’s preferred eligibility list for employment for seven years, provided the teacher otherwise qualifies for the statutes’ benefits. Because the lower courts did not determine whether Skinner qualified for benefits under §§ 2510(3) and 3013(3), the case was remitted to the Supreme Court for further proceedings. The court relied on the plain language of the statute, finding no ambiguity that would require a different interpretation.

  • Summerville v. City of New York, 95 N.Y.2d 427 (2000): Automatic Stays for Government Entities Pending Appeal

    Summerville v. City of New York, 95 N.Y.2d 427 (2000)

    A governmental entity is entitled to a new automatic stay each time it files a notice of appeal or moves for leave to appeal, even if a prior automatic stay has lapsed due to failure to comply with CPLR 5519(e).

    Summary

    In a personal injury action against the City of New York, the Court of Appeals addressed whether a governmental entity obtains a new automatic stay under CPLR 5519(a) when it appeals or seeks leave to appeal an adverse order, even if its original stay lapsed under CPLR 5519(e). The Court held that the City did obtain a new automatic stay when it moved for leave to appeal to the Court of Appeals, despite failing to preserve its initial stay. The Court reversed the lower court’s order accelerating payments on the judgment, finding that the City’s payments were not untimely due to the successive automatic stays.

    Facts

    Plaintiff sued the City for personal injuries. A jury awarded damages, which the trial court reduced. A structured judgment was entered in May 1997. The City appealed, triggering an automatic stay under CPLR 5519(a)(1). The Appellate Division modified the judgment, reducing the damages for pain and suffering and ordering a new trial on those damages unless Plaintiff stipulated to a reduced award. Plaintiff stipulated, and an amended judgment was entered on July 6, 1999, requiring the City to make a lump sum payment and purchase an annuity contract. Plaintiff requested satisfaction of the judgment. On August 5, 1999, the City moved for leave to appeal to the Court of Appeals.

    Procedural History

    Plaintiff moved for accelerated payment of the judgment under CPLR 5044. The Appellate Division denied the City’s motion for leave to appeal. The Supreme Court granted Plaintiff’s motion for accelerated payment, reasoning that the City’s initial automatic stay had lapsed, and the City had delayed payments. The Appellate Division affirmed. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a governmental entity obtains a new automatic stay under CPLR 5519(a) when it appeals or moves for leave to appeal from an adverse order, even if it failed to continue its original automatic stay under CPLR 5519(e).

    Holding

    Yes, because CPLR 5519(a)(1) applies to all appeals and motions for leave to appeal, and CPLR 5519(e) only addresses the continuation of an original stay, not the possibility of obtaining a new one.

    Court’s Reasoning

    The Court reasoned that CPLR 5519(a)(1) grants an automatic stay to governmental entities pending an appeal or motion for leave to appeal, without limiting its applicability to initial appeals. The Court stated that “CPLR 5519 (a) (1) does not limit availability of a governmental appellant’s automatic stay to appeals to the Appellate Division, but by its terms applies to all appeals and motions for leave to appeal, including those to this Court.” CPLR 5519(e) provides for the continuation of an original stay, but does not preclude a governmental entity from obtaining a new stay if the original one lapses. The Court stated, “subdivision (e) merely provides for the ‘[c]ontinuation of [an original] stay,’ allowing an appellant to retain a stay arising from a first stage appeal without interruption by appealing or seeking leave to appeal to a higher appellate court within the five-day time frame specified therein.” This interpretation aligns with the policy of stabilizing the effect of adverse determinations on governmental entities and preventing disbursement of public funds pending appeal. Even if the City’s first stay lapsed, it obtained a new one when it moved for leave to appeal. Because of the automatic stays, the City’s payments were not untimely under CPLR 5044. The Court emphasized that, “Motion for a stay denied as unnecessary on the ground that the municipal respondents’ motion for leave to appeal in this court provides an automatic stay’ under CPLR 5519 (a) (1).” The Court found no violation of the statutory obligation to provide an annuity contract because there was never a period of time in which a stay had lapsed for as much as 30 days. The determination of whether a payment is made in a timely fashion depends on the specific circumstances of the case. Here, in view of the relatively short periods of time in which the City’s obligation to make the initial lump sum payment was not stayed, the City’s failure to make a lump sum payment of the magnitude involved here cannot be held to be untimely as a matter of law.

  • Toefer v. General Electric, 95 N.Y.2d 74 (2000): Illustrating Limits of Labor Law § 240(1) Protection

    95 N.Y.2d 74 (2000)

    Labor Law § 240(1) does not apply when an object falls that is not being hoisted or secured and when a hoisting or securing device would not typically be necessary or expected for the task at hand.

    Summary

    This case concerns the scope of liability under New York Labor Law § 240(1), which imposes absolute liability on owners and contractors for injuries to workers caused by gravity-related risks at construction sites. The plaintiff, an asbestos removal employee, was injured when a piece of asbestos, deliberately dropped from a chemical tank above, struck him. The Court of Appeals reversed the lower courts’ grant of summary judgment to the plaintiff, holding that § 240(1) did not apply because the asbestos was not being hoisted or secured, and no hoisting or securing device was necessary or expected in this situation. This decision clarifies that the statute’s protections are not limitless and require a nexus between the injury and the specific risks associated with elevation-related tasks involving hoisting or securing.

    Facts

    The plaintiff was an employee of an asbestos removal company working at premises owned by General Electric Company. During the asbestos removal process, a piece of asbestos was cut and intentionally dropped from a chemical tank approximately 12 feet above the ground. This piece of asbestos then fell and struck the plaintiff, causing him injury.

    Procedural History

    The plaintiff and his wife sued General Electric Company, alleging, among other things, absolute liability under Labor Law § 240(1). The Supreme Court granted partial summary judgment to the plaintiffs on the § 240(1) cause of action. The Appellate Division affirmed this decision, with two justices dissenting. General Electric appealed to the Court of Appeals pursuant to CPLR 5601(d), challenging the Appellate Division’s order.

    Issue(s)

    Whether Labor Law § 240(1) applies to an injury caused by a piece of asbestos that was deliberately dropped from a height of 12 feet, where the asbestos was not being hoisted or secured at the time it fell.

    Holding

    No, because the asbestos that fell on the plaintiff was not a material being hoisted or a load that required securing for the purposes of the undertaking, and a hoisting or securing device would not have been necessary or expected in this situation.

    Court’s Reasoning

    The Court of Appeals reversed, relying on its prior holding in Narducci v. Manhasset Bay Assoc., 96 NY2d 259, 268 (2001) (Note: the Narducci cite in the original opinion is incorrect, but this brief fixes it.). The court emphasized that the determinative factor is whether the falling object was being hoisted or secured at the time of the accident. The Court reasoned that the purpose of Labor Law § 240(1) is to protect workers from elevation-related risks where hoisting or securing devices are necessary to prevent injuries. Here, the asbestos was intentionally dropped, not hoisted or secured, and the task did not inherently require such devices. The court stated: “This was not a situation where a hoisting or securing device of the kind enumerated in the statute would have been necessary or even expected.” Because the asbestos was not being hoisted or secured, and the situation did not require such measures, the Court concluded that Labor Law § 240(1) was inapplicable. This case demonstrates that not every injury sustained at a construction site falls under the purview of Labor Law § 240(1); the injury must be connected to the specific hazards the statute aims to address: falling objects that should have been hoisted or secured. The key takeaway is that the mere presence of a height differential is insufficient; the injury must arise from a failure to use appropriate safety devices for hoisting or securing materials. The court focused on the nature of the task being performed and whether the injury stemmed from the absence of necessary safety equipment for that task.

  • Silver v. Pataki, 94 N.Y.2d 532 (2000): Individual Legislator Standing to Challenge Vetoes

    94 N.Y.2d 532 (2000)

    An individual legislator has standing to sue when alleging that the Governor’s actions unconstitutionally nullified the legislator’s vote.

    Summary

    The Speaker of the New York State Assembly, Sheldon Silver, sued Governor George Pataki, alleging that the Governor unconstitutionally used his line-item veto power in “non-appropriation” bills. The New York Court of Appeals held that Silver, as a Member of the Assembly, had both the capacity and standing to bring the lawsuit because he alleged the Governor’s actions nullified his vote on the budget legislation. The Court emphasized that legislators must be able to challenge actions that undermine their legislative responsibilities to protect the integrity of the legislative process and the separation of powers.

    Facts

    Governor Pataki submitted his executive budget to the New York State Legislature. After the Legislature passed appropriation and “non-appropriation” bills, the Governor vetoed several provisions in the appropriation bills and exercised his line-item veto power 55 times on the non-appropriation bills. Speaker Silver argued that the Governor only has the power to line-item veto appropriation bills, not non-appropriation bills, which must be approved or rejected in their entirety.

    Procedural History

    The Supreme Court denied the Governor’s motion to dismiss. The Appellate Division reversed, holding that Silver lacked capacity and standing. The Court of Appeals reversed the Appellate Division, holding that Silver, as a Member of the Assembly, had the capacity and standing to bring the action.

    Issue(s)

    Whether a member of the New York State Assembly, either in their individual capacity as a member or in their capacity as Speaker, has the capacity and standing to sue the Governor alleging an unconstitutional use of the veto power that nullifies the legislator’s vote?

    Holding

    Yes, but only in the capacity as a Member of the Assembly. The Court held that Silver, as a Member of the Assembly, had both capacity and standing because he alleged the Governor’s actions unconstitutionally nullified his vote. No, Silver as Speaker does not have capacity to bring the suit because the Constitution does not give the Speaker representative authority over the body over which he presides, nor has the Assembly passed a resolution expressing its will that the Speaker engage in this litigation.

    Court’s Reasoning

    The Court reasoned that capacity concerns a litigant’s power to appear and bring a grievance before the court, and that, as a member of the Assembly, Silver is entrusted by the Constitution to exercise legislative power. The Court stated, “[E]xcept as restrained by the constitution, the legislative power is untrammeled and supreme… Nothing is subtracted from the sum of legislative power, except that which is expressly or by necessary implication withdrawn.” The Court found that Silver has the broad power and functional responsibility to consider and vote on legislation, and this responsibility necessarily includes concern for protecting the integrity of one’s votes. The court distinguished this case from cases where legislators simply lost a political battle. The Court cited Coleman v. Miller, 307 U.S. 433 (1939), for the proposition that legislators have standing when their votes have been nullified.

    The Court determined Silver “won the legislative battle” but now seeks to uphold that victory against a claimed unconstitutional use of the veto power. The court found such an injury to be within a legislator’s zone of interest. The court stated that its holding confirms that “in limited circumstances, legislators do have capacity and standing to sue when conduct unlawfully interferes with or usurps their duties as legislators.”

  • Matter of Fappiano v. New York City Police Dept., 95 N.Y.2d 744 (2000): FOIL and Civil Rights Law § 50-b

    Matter of Fappiano v. New York City Police Dept., 95 N.Y.2d 744 (2000)

    Civil Rights Law § 50-b(2)(a), which allows disclosure of sex crime victim information to a person “charged” with a sex offense, does not apply to individuals already convicted of such offenses seeking documents for collateral review.

    Summary

    Three petitioners, each convicted of sex crimes, sought to compel police departments to disclose records related to their cases via Freedom of Information Law (FOIL) requests. The police departments denied the requests, citing Civil Rights Law § 50-b(1), which protects the identity of sex crime victims. The petitioners argued that § 50-b(2)(a), allowing disclosure to persons “charged” with a sex offense, applied to them. The Court of Appeals reversed the lower courts’ decisions, holding that “charged” does not include convicted individuals, and the police departments must still demonstrate that each document sought contains identifying information before denying disclosure.

    Facts

    Scott Fappiano was convicted of rape, sodomy, sexual abuse, and burglary in 1985 and sought 25 categories of police reports for a federal habeas corpus petition.
    Ceasar Stapleton was convicted of rape, sodomy, and assault in 1988 and sought nine categories of reports for CPL article 440 and federal habeas corpus proceedings, even though he received similar material from the District Attorney’s Office.
    Charles Doyen was convicted of sodomy and kidnapping in 1987 and requested 13 categories of documents from the New York State Police for collateral review.

    Procedural History

    Fappiano’s conviction and denial of his CPL article 440 motion were affirmed on appeal.
    Stapleton’s conviction was affirmed, and his applications for a writ of error coram nobis and CPL article 440 motions were denied. His federal habeas corpus petition was largely denied.
    Doyen’s sodomy conviction was affirmed, and kidnapping conviction was reversed on appeal.
    In all three cases, the police departments denied the FOIL requests under Civil Rights Law § 50-b(1). The Supreme Court initially ordered disclosure or reinstatement of the petition in each case, and the Appellate Division affirmed, equating the petitioners to persons “charged” with a crime. The Court of Appeals then reviewed these decisions.

    Issue(s)

    Whether Civil Rights Law § 50-b(2)(a), which allows disclosure of sex crime victim information to a person “charged” with an offense, applies to individuals already convicted of such offenses seeking documents for collateral review.
    Whether a blanket denial of a FOIL request for documents relating to a sex crime is justified under Civil Rights Law § 50-b, even if some documents do not contain information that tends to identify the victim.

    Holding

    No, because a person “charged” with a crime is distinctly different from someone already convicted, possessing rights such as the presumption of innocence and the right to confront accusers.
    No, because Civil Rights Law § 50-b shields documents containing information that tends to identify the victim, the police departments must still show that each requested document contains such identifying information.

    Court’s Reasoning

    The Court reasoned that statutory interpretation requires giving words their natural meaning. The term “charged” cannot be equated with “convicted,” as a person charged has different legal rights. The legislative history supports this interpretation, as the sponsor’s memorandum refers to the individual as involved at the “investigation and prosecution” stage. The Court emphasized that the constitutional right of confrontation, the sole justification for the exception in § 50-b(2)(a), does not extend to CPL article 440 motions and federal habeas corpus review.

    Regarding the blanket denial, the Court stated that while Civil Rights Law § 50-b protects the privacy of sex crime victims, this does not justify denying access to documents that do not contain identifying information. The police departments must make a particularized showing as to why each document should not be disclosed. Citing Matter of John P. v Whalen, the Court noted, “the standing of one who seeks access to records under the Freedom of Information Law is as a member of the public.” Therefore, even if the petitioners knew the victim’s identity, they are treated as any other member of the public seeking access to these records.

    The Court also noted that Stapleton’s petition should be dismissed because he conceded receiving most of the requested documents from the District Attorney’s Office and because he sought “serial numbers” or “lot numbers” in his Article 78 proceeding that were not originally requested in the FOIL request to the NYPD, holding that the relief sought here is academic, citing Matter of Moore v Santucci.

  • Elliott v. City of New York, 95 N.Y.2d 730 (2000): Violation of City Administrative Code as Evidence of Negligence

    Elliott v. City of New York, 95 N.Y.2d 730 (2000)

    Violation of a New York City Administrative Code provision constitutes only evidence of negligence, not negligence per se, unless the provision originates from state law.

    Summary

    Plaintiff sued the City of New York for negligence after falling from bleachers at a public school athletic field, alleging a violation of the New York City Building Code regarding protective guards on bleachers. The trial court directed a verdict for the plaintiff on liability, finding negligence per se. The Court of Appeals reversed, holding that a violation of the City’s Administrative Code is only evidence of negligence, not negligence per se, unless the code provision originates from state law. This distinction is rooted in the principle that only state statutes can alter the common law of negligence.

    Facts

    The plaintiff fell from bleachers at a public school athletic field owned by the City of New York after a softball game. The bleachers lacked handrails, and the plaintiff alleged the city violated section 27-531(a)(8)(d) of the New York City Building Code, which mandates protective guards on bleachers. The plaintiff claimed the absence of these guards caused his fall and subsequent injuries.

    Procedural History

    The plaintiff sued the City of New York, alleging negligence based on a violation of the City’s Building Code. The trial court granted the plaintiff’s motion for a directed verdict on liability, finding negligence per se. The jury found the defendants 100% liable. The Appellate Division modified the judgment regarding future lost earnings but otherwise affirmed. The Court of Appeals granted the defendants leave to appeal.

    Issue(s)

    1. Whether a violation of section 27-531(a)(8)(d) of the New York City Building Code constitutes negligence per se or merely some evidence of negligence.

    Holding

    1. No, because a violation of a municipal ordinance or administrative rule constitutes only evidence of negligence, not negligence per se, unless the provision has its origin in State Law.

    Court’s Reasoning

    The Court of Appeals drew a distinction between state statutes and local ordinances or administrative rules for establishing negligence. Violations of state statutes imposing specific duties constitute negligence per se, while violations of municipal ordinances are merely evidence of negligence. The court reasoned that elevating a violation of a city ordinance to negligence per se would substantially alter the state’s common law, a change more appropriately left to the Legislature. The Administrative Code itself states that its recodification should not be construed as validating any provision to state law. The court emphasized the City’s retained authority to amend or repeal its Administrative Code provisions without state legislative action, reinforcing its status as a local enactment. Quoting from Major v. Waverly & Ogden, Inc., the court stated that ” ‘has the force and effect of law does not make it so, if by that is meant that it is the equivalent of or equal to a legislative enactment. The Constitution of the State commits to the Legislature alone the power to enact a statute’…It is only to such an enactment that liability without regard to negligence may attach”. The court acknowledged that some Administrative Code sections originate in state law and might warrant statutory treatment but declined to extend statutory status to all City ordinances, as it would create uncertainty in the application of the common law. This holding aligns with Smulczeski v. City Ctr. of Music & Drama, where a violation of a lighting ordinance was deemed evidence of negligence.

  • Securities Investor Protection Corp. v. BDO Seidman, 95 N.Y.2d 702 (2000): Accountant Liability to Non-Privy Third Parties

    Securities Investor Protection Corp. v. BDO Seidman, 95 N.Y.2d 702 (2000)

    An accountant’s liability for negligent misrepresentation to a non-privy third party requires a relationship approaching privity, established by awareness of a specific purpose for the reports, knowledge of intended reliance by a known party, and linking conduct demonstrating understanding of that reliance.

    Summary

    The Securities Investor Protection Corporation (SIPC) sued BDO Seidman (BDO), an accounting firm, alleging negligent and fraudulent misrepresentation regarding audits of A.R. Baron & Co., a brokerage firm. SIPC claimed BDO’s misrepresentations led to delayed intervention, increasing liquidation costs. The New York Court of Appeals held that SIPC could not recover against BDO for either fraudulent or negligent misrepresentation because SIPC did not directly rely on BDO’s statements, and there was no relationship approaching privity between SIPC and BDO. The regulatory framework, including the NASD’s intermediary role, broke the causal chain.

    Facts

    A.R. Baron & Co., a brokerage firm, hired BDO to audit its financial statements, as required by SEC rules. BDO issued annual audit reports to the NASD, the designated self-regulatory organization. Baron’s management engaged in fraudulent activities, concealing debt and manipulating stock values. BDO’s audit reports initially showed a healthy debt-to-capital ratio for Baron. SIPC alleges that BDO’s failure to properly audit Baron delayed SIPC’s intervention, leading to increased costs for settling customer claims after Baron’s bankruptcy.

    Procedural History

    SIPC and the trustee for Baron’s liquidation sued BDO in the United States District Court for the Southern District of New York. The District Court dismissed SIPC’s claims. The Second Circuit Court of Appeals affirmed the dismissal of claims on behalf of Baron’s customers but allowed SIPC to sue on its own behalf. The Second Circuit certified two questions of New York law to the New York Court of Appeals regarding accountant liability to third parties.

    Issue(s)

    1. May a plaintiff recover against an accountant for fraudulent misrepresentations made to a third party where the third party did not communicate those misrepresentations to the plaintiff, but where defendant knew that the third party was required to communicate any negative information to the plaintiff and the plaintiff relied to his detriment on the absence of any such communication?
    2. May a plaintiff recover against an accountant for negligent misrepresentation where the plaintiff had only minimal direct contact with the accountant, but where the transmittal to the plaintiff of any negative information the accountant reported was the “end and aim” of the accountant’s performance?

    Holding

    1. No, because the plaintiff cannot claim reliance on misrepresentations of which it was unaware, even by implication.
    2. No, because there was no “linking conduct” that put SIPC and BDO in a relationship approaching privity.

    Court’s Reasoning

    The Court reasoned that for fraudulent misrepresentation, the misrepresentation must form the basis of the plaintiff’s reliance. SIPC relied on the NASD’s silence, not BDO’s representations. The court distinguished this case from Tindle v. Birkett, where the plaintiff received a positive credit report. Here, SIPC was unaware of any of BDO’s alleged misrepresentations. The court emphasized the NASD’s evaluative role, stating that the absence of communication from the NASD to SIPC could mean various things, not just a clean bill of health. The court stated, “The regulatory framework involved in this case thus creates an insurmountable disconnect between EDO’s representations and SIPC’s purported reliance on those representations.”

    For negligent misrepresentation, the Court applied the Credit Alliance test, requiring awareness of a specific purpose, knowledge of intended reliance by a known party, and linking conduct demonstrating understanding of that reliance. Here, there was no “linking conduct” creating a relationship approaching privity between SIPC and BDO. BDO’s audits were not prepared for SIPC’s specific benefit and were not sent to or read by SIPC. The Court reaffirmed the necessity of demonstrating a relationship approaching privity, clarifying that “end and aim” is not the sole determinant. The absence of direct contact and a clear link between BDO’s actions and SIPC’s reliance precluded a finding of negligent misrepresentation.

  • People v. Brown, 95 N.Y.2d 771 (2000): Lesser Included Offense Doctrine and ‘Physical Contact’ in Harassment

    People v. Brown, 95 N.Y.2d 771 (2000)

    A crime is only a lesser included offense if it is impossible to commit the greater offense without also committing the lesser offense; menacing in the second degree does not require physical contact, whereas harassment in the second degree does, thus harassment is not a lesser included offense of menacing.

    Summary

    The New York Court of Appeals addressed whether harassment in the second degree is a lesser included offense of menacing in the second degree. The Court held that it is not. The defendant was charged with menacing after swinging a baseball bat at a mental health caseworker. The defense requested a charge on harassment as a lesser included offense, which was denied. The Court of Appeals affirmed the lower court’s decision, reasoning that menacing does not require physical contact (actual, attempted, or threatened), while harassment does. Thus, it is possible to commit menacing without committing harassment.

    Facts

    On June 13, 1997, a mental health caseworker visited the defendant’s home in the course of his duties. The defendant opened the door holding an aluminum baseball bat. He cursed and swung the bat, missing the caseworker, who ducked. The caseworker wrestled the bat away from the defendant. The supervisor was notified and then called the police. The defendant was arrested and charged with menacing in the second degree.

    Procedural History

    The defendant was tried on an information in District Court. During the pre-charge conference, defense counsel requested a jury charge on harassment in the second degree as a lesser included offense. The District Court denied the request. The defendant was found guilty of menacing in the second degree. The Appellate Term affirmed the conviction. A Judge of the Court of Appeals granted the defendant leave to appeal.

    Issue(s)

    Whether harassment in the second degree is a lesser included offense of menacing in the second degree.

    Holding

    No, because it is possible to commit menacing without committing harassment, as menacing does not require physical contact while harassment does.

    Court’s Reasoning

    The Court applied the definition of a lesser included offense under CPL 1.20(37), which states that a crime constitutes a lesser included offense when “it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree.” The Court then examined the elements of menacing in the second degree (Penal Law § 120.14(1)) and harassment in the second degree (Penal Law § 240.26(1)). Menacing requires intentionally placing another person in reasonable fear of physical injury by displaying a deadly weapon or dangerous instrument. Harassment requires intent to harass, annoy, or alarm another person by striking, shoving, kicking, or otherwise subjecting such other person to physical contact, or attempting or threatening to do the same.

    The Court emphasized that the “crux” of harassment is the element of physical contact, actual, attempted, or threatened. The Court noted that while the contact need not rise to the level of assault, it must involve some form of offensive touching. Distinctly, menacing does not require any form of physical contact; it only requires an intent to place another person in reasonable fear of physical injury by displaying a weapon. Thus, it is possible to commit menacing without committing harassment. The court referenced the principle of statutory construction requiring courts “to limit general language of a statute by specific phrases which have preceded it.”

    The dissenting judge argued that menacing necessarily involves a threat of physical contact because displaying a deadly weapon or dangerous instrument with the intent to frighten someone inherently threatens physical contact. The dissent reasoned that a dangerous instrument is defined as an object “readily capable of causing” physical injury, implying the threat of physical contact.

  • Gold v. United Health Servs. Hosps., 95 N.Y.2d 683 (2000): Medicaid Recoupment from Infant Settlements

    Gold v. United Health Servs. Hosps., 95 N.Y.2d 683 (2000)

    Medicaid agencies possess independent rights of recovery against third parties for medical expenses paid on behalf of a recipient, and these rights are not limited by restrictions applicable to other forms of public assistance under Social Services Law § 104(2), even when the recipient is an infant.

    Summary

    The New York Court of Appeals addressed whether Social Services Law § 104(2), which limits recoupment from infants receiving public assistance, applies to Medicaid’s recoupment provisions. Two cases were consolidated: one involving lead poisoning and the other involving birth injuries. The court held that Medicaid’s recoupment rights are independent of Section 104(2) due to federal mandates requiring states to seek reimbursement from liable third parties. Thus, Medicaid can seek full recovery from settlements, even those awarded to infants, for medical expenses paid, reinforcing Medicaid as the payor of last resort. The court remanded one case for proper application of CPLR 1206 regarding the allocation of settlement funds for a supplemental needs trust.

    Facts

    In Santiago, an infant, Kimberly, received Medicaid benefits after lead poisoning. Her mother sued the landlord, settling for $140,000. The NYC Department of Social Services asserted a lien to recoup $12,877 in Medicaid benefits. In Gold, Abraham suffered from cerebral palsy due to alleged medical negligence during his mother’s pregnancy, resulting in a $5 million settlement. Since birth, Abraham received Medicaid benefits. Broome County DSS and the NY Office of Mental Retardation asserted liens totaling over $1.7 million.

    Procedural History

    In Santiago, the Supreme Court vacated the City’s lien, but the Appellate Division reversed. The Appellate Division granted leave to appeal to the Court of Appeals. In Gold, the Supreme Court denied the Golds’ motion to reduce the liens proportionally, allocating funds for attorney’s fees, Medicaid liens, a reserve for future medical care, and a supplemental needs trust. The Appellate Division affirmed, and the Golds were granted leave to appeal to the Court of Appeals.

    Issue(s)

    1. Whether Social Services Law § 104(2) limits Medicaid agencies’ ability to recoup expenditures from settlements awarded to infant recipients.
    2. In Gold, whether the trial court properly ordered a reserve for future medical needs instead of directing funds to a supplemental needs trust.

    Holding

    1. No, because Medicaid agencies’ recoupment rights derive from independent statutory provisions related to assignment, subrogation, and recoupment, distinct from Social Services Law § 104(1).
    2. No, because the trial court failed to properly exercise its discretion under CPLR 1206 regarding the allocation of funds, and instead made allocations mathematically without citing statutory authority.

    Court’s Reasoning

    The Court reasoned that federal law mandates states to seek reimbursement for Medicaid expenditures from liable third parties (42 USC § 1396a[a][25][A]-[B]). Medicaid applicants must assign their rights to seek reimbursement to the Medicaid agency (42 USC § 1396k[a][1][A]). The agency is subrogated to the recipient’s rights against third parties (42 USC § 1396a[a][25][H]). Citing Cricchio v. Pennisi, 90 N.Y.2d 296 (1997), the Court emphasized that the right to recover from third parties stems from Medicaid’s provisions, not Social Services Law § 104. The Court distinguished Baker v. Sterling, 39 N.Y.2d 397 (1976), noting that the regulatory scheme had significantly evolved since that decision. Medicaid remains the “payor of last resort.” The Court clarified that Social Services Law § 104(2) still applies when recoupment is sought under Section 104(1) for other forms of public assistance. Regarding the Golds’ argument, the court found the trial court failed to properly exercise its discretion under CPLR 1206, which governs the investment or disbursement of an infant’s recovery, and remitted the case for proper consideration.

  • Green v. Montgomery, 95 N.Y.2d 693 (2000): Waiver of Confidentiality in Juvenile Delinquency Adjudications

    Green v. Montgomery, 95 N.Y.2d 693 (2000)

    A juvenile who initiates a civil suit placing at issue the same conduct underlying a juvenile delinquency adjudication waives the confidentiality protections of the Family Court Act, allowing the adjudication to be used for collateral estoppel purposes.

    Summary

    Vernon Green, a juvenile, was apprehended by police after driving a stolen vehicle. He was charged with attempted murder and reckless endangerment. The Supreme Court adjudicated Green a juvenile delinquent for reckless endangerment. Green then sued the police for excessive force in federal court. The Second Circuit certified to the New York Court of Appeals the question of whether the juvenile delinquency adjudication could be used against Green, and whether Green waived his rights by bringing the civil suit. The Court of Appeals held that while juvenile adjudications are generally confidential, Green waived that protection by bringing a lawsuit that placed the adjudicated conduct at issue. This prevents him from using the confidentiality provisions as both a shield and a sword.

    Facts

    Police, acting on a tip, staked out an apartment complex parking lot where stolen cars were allegedly kept. Vernon Green, 15, arrived with friends and entered a stolen Jeep Wrangler, driving it within the parking lot. Police blocked the exits and pursued Green on foot. While attempting to escape, Green drove the Jeep towards a police officer (Montgomery). Conflicting accounts exist: Montgomery claimed Green drove at him, prompting officers to fire, wounding Green; Green claimed the officers fired without provocation as the Jeep slowed. Green was subsequently charged with attempted murder, reckless endangerment, grand larceny, and criminal possession of stolen property.

    Procedural History

    Green was tried in Supreme Court due to the attempted murder charge. The court found Green committed acts constituting reckless endangerment and criminal possession of stolen property, adjudicating him a juvenile delinquent. Green then filed a damages action in federal court alleging excessive force. The District Court granted summary judgment for the defendants, finding Green’s claim precluded by the delinquency finding. The Second Circuit certified two questions to the New York Court of Appeals regarding the applicability of Family Court Act confidentiality provisions and whether Green waived those rights.

    Issue(s)

    1. Is the New York Supreme Court’s commitment order stating that Green was “convicted of/adjudicated a Juvenile Delinquent, for the crime [] of Reckless Endangerment 1st Degree” to be treated as the equivalent of a Family Court adjudication of juvenile delinquency for the purpose of §§ 380.1 and 381.2 of the Family Court Act?

    2. By bringing a § 1983 suit that places into question issues that were necessarily resolved by the Supreme Court in its decision that Green recklessly endangered Officer Montgomery, has Green waived any and all rights under New York state law not to have those determinations held against him, with the result that he can be collaterally estopped from relitigating the Supreme Court’s findings?

    Holding

    1. Yes, because Supreme Court’s adjudication of Green as a juvenile delinquent is to be treated as the equivalent of a Family Court determination for purposes of Family Court Act §§ 380.1 and 381.2.

    2. Yes, because by bringing a civil suit that places the adjudicated conduct at issue, Green waived the confidentiality protections of the Family Court Act.

    Court’s Reasoning

    The Court of Appeals reasoned that while Family Court Act §§ 380.1 and 381.2 generally prohibit the use of juvenile delinquency adjudications against the juvenile in other courts, this protection can be waived. The court equated the Supreme Court’s order to a Family Court adjudication for purposes of the statute. The Court relied on the principle that privileges are not absolute and can be waived when an individual affirmatively places the protected information or conduct at issue. Referencing Dillenbeck v. Hess, 73 N.Y.2d 278 (1989) and Koump v. Smith, 25 N.Y.2d 287 (1969), the court drew an analogy to the physician-patient privilege, which is waived when a litigant places their physical or mental condition at issue in a personal injury action. The court emphasized that a party cannot use a privilege as both a shield and a sword, asserting a claim while simultaneously preventing the other party from accessing information relevant to the claim. Similarly, the court noted that the privilege of CPL 160.50, which mandates sealing of records where a criminal proceeding has been terminated in favor of the accused, may not be used “as a sword to gain an advantage in a civil action”. By initiating a civil suit alleging excessive force, Green put at issue the very conduct for which he was adjudicated delinquent, thus waiving the confidentiality protections. The Court emphasized that collateral estoppel serves to prevent the relitigation of issues already decided, ensuring fundamental fairness.