New York Legal Update

New Legislation Strengthens Public Vessel Safety

On July 26, the Governor signed new legislation increasing the safety of public vessels throughout the State. The law updates vessel safety requirements that had not been revised in several decades, to reflect current equipment and safety standards. The legislation was proposed in response to the tragic capsizing of the Ethan Allen on Lake George in 2005.

The new safety requirements amends the Navigation Law and relate to public vessel design, inspection, crew staffing and equipment. Under the new legislation:

• Public vessels certified to carry more than 20 passengers are required to be equipped with a minimum of two functional and unobstructed means of egress from each deck
• The operation of a public vessel with less than the required number of crew members as specified in the vessel’s certificate of inspection or permit is prohibited
• Public vessel owners must notify a marine inspector of proposed repairs or modifications to a vessel’s structure or engineering plant, as well as any other modification that might impact a vessel’s stability, seaworthiness or safe operation, and operation of a vessel in contravention of an inspector’s directive is prohibited
• Public vessels certified to carry more than 10 passengers must be equipped with a very high frequency marine radio or operational cellular phone service, to enable the vessel to call for assistance, and vessels certified to carry more than 65 passengers must have radar.

The legislation also increases the penalties that may be imposed for violations of the Navigation Law.

In a Press Release, Governor Spitzer remarked, “New York’s waterways are among the most beautiful in the world and those who board a public vessel to enjoy these natural resources should be able to do so safely. The revisions made by the legislation signed today will help to ensure the safety of passengers and crew members while boating on state waters.” 

Obstetrician Not Liable For Being Late To Delivery

Litigation against obstetricians has exploded in recent years for injuries caused during birth both to the mother and child. Obviously if the obstetrician himself is performing the delivery his duty to the patient seems straightforward. But what about the following situation. Suppose an obstetrician's patient goes into labor, and for whatever reason the obstetrician is unable to make it to the hospital in time. So he calls in and has others cover for him to perform the delivery. Can the late obstetrician still be liable if injuries occur during delivery? This was the claim raised in Brown v Bauman, 2007 NY Slip Op 06251decided yesterday by the First Department.

In that case, the defendant Dr. Bauman was a solo practitioner and board-certified obstetrician/gynecologist who treated the plaintiff-mother during her pregnancy. When the mother went into labor, Dr. Bauman was unexpectedly late in proceeding from his home to the hospital to attend his patient's labor and delivery. Nonetheless, he confirmed by telephone that an on-call attending obstetrician and the chief obstetrical resident were caring for the patient pending his arrival. These two other obstetricians delivered the infant, and Dr. Bauman eventually arrived at the hospital shortly after the birth, at which time the covering obstetricians were engaged in repairing a perineal laceration sustained by the mother during the delivery. After the delivery, the mother began to suffer urinary incontinence, and about one year later from fecal incontinence, which she claimed was caused  by a torn sphincter and nerve damage.

The mother contended that with proper management by an experienced obstetrician/gynecologist, the perineum tear could have been avoided. The mother argued that had Dr. Bauman been present, his experience might have led him to perform an episiotomy, which would have prevented the perineum tear that extended into her anal sphincter. Instead, she claimed, the delivery was left to inexperienced residents, who performed a faulty repair of the perineal laceration.

Dr. Bauman moved for summary judgment dismissing the complaint. The motion was denied with the motion court finding that there were issues of fact as to the existence and scope of the duty owed by Dr. Bauman to his patient which should be resolved by a jury. However, the First Department reversed stating that the duty owed by Dr. Bauman to his patient was a legal question to be decided by the courts. The First Department stated that a physician who is unable to care for the patient does not depart from the standard of care so long as he or she arranges to transfer the care of the patient to another well-qualified physician. And on the record before it, the First Department found that Dr. Bauman established that he complied with this requisite standard of care. In addition, regardless of whether Dr. Bauman satisfied his duty to the mother, the First Department also found that the mother failed to submit any evidence to show the existence of an issue of fact as to causation. Thus, the action was dismissed.

In this case, Dr. Bauman was able to call ahead to arrange for qualified obstetricians to cover for him. Does the decision in this case necessarily mean that if Dr. Bauman did not call in he would be liable?

State Assembly Passes Congestion Mitigation Plan for New York City

The State Assembly yesterday passed legislation which would create a 17-member commission appointed by state and city officials to develop a plan to curb traffic congestion in New York City (see Press Release). The Commission would be charged with conducting hearings, taking testimony and reviewing information and proposals regarding traffic congestion and other related health and safety issues within New York City. Additionally, the Commission will issue recommendations on implementing a traffic congestion mitigation proposal to the state and City by January 31, 2008. 

The bill A09362 will now go to the Senate for consideration.

The bill also:

• authorizes the Mayor of the City of New York to present a traffic congestion mitigation plan to address traffic congestion within Manhattan, including but not limited to congestion pricing components, on or before August 1, 2007 to the Commission, Governor, Legislature, New York City Council and the Metropolitan Transportation Authority (MTA);

• directs the State Legislature to consider the Commission's implementation plan on or before March 31, 2008, while prohibiting the imposition or collection of fees unless the State Legislature acts on a plan by March 31, 2008 which action is not required unless the Legislature has first received a request from the Mayor which has been approved by resolution of the New York City Council;

• allows for a review of the tangible impact of a congestion mitigation plan by requiring the MTA and NYSDOT to each concurrently submit five-year capital plans which include system-wide goals and objectives for capital spending and project selection criteria); and,

• establishes an immediate effective date, with the act to expire and be deemed repealed on June 30, 2012, except that the act would be repealed in the absence of a commitment of at least $250 million in federal funds prior to October 1, 2007 or in the absence of a commitment of at least $200 million dollars in federal funds prior to October 1, 2007 plus a commitment by the City of New York prior to December 31, 2007 of funds in an amount equal to the difference between $250 million and the amount of federal funds committed.

Assembly Speaker Sheldon Silver remarked, "This legislation establishes a timeline for the development, review and implementation of congestion mitigation measures, thereby ensuring that various stakeholders have the opportunity to provide comment and input in a timely fashion." 

Search By Private Security Guard Not Illegal

Both the Fourth Amendment and the New York State Constitution prevents the police from conducting warrantless searches. What about searches performed by private security guards? It depends on whether the private security guard was somehow acting as an agent of the police. Today's decision in People v Ruppert, 2007 NY Slip Op 06182 illustrates.

While attending a music festival, the defendant's backpack was searched by two private security guards employed by the festival's sponsors. The security guards found glass vials with amber liquid and blue pills. The guards then removed the defendant from the festival grounds, and delivered him to a State Trooper on duty outside the front gate of the festival and related what they had found. After searching defendant and his backpack, the Trooper found additional drugs and paraphernalia, and placed defendant under arrest.

The Court affirmed a denial of the defendant's motion to suppress the evidence recovered. The Court stated that warrantless search by private citizen (including security guards) need not be suppressed unless the citizen was acting as an agent of the police. When would a private security guard be acting as such an agent? The Court stated that such an agency could be found if (1) there was a clear connection between the police and the private investigation; (2) there was completion of the private act at the instigation of the police; (3) there was close supervision of the private conduct by the police; or (4) the private act was undertaken on behalf of the police to further a police objective. On the facts before it, the Court found none of these indicia of state action and thus affirmed the defendant's conviction. The Court added that the security guard did not become an agent of the police simply by turning over suspected contraband.

Marital Privilege Does Not Protect Conversation Between Defendant And Wife That Defendant Had Oral Sex With Wife's Child

The marital privilege is a rule of evidence which prohibits one spouse from disclosing confidential communications by the other spouse during the marriage (CPLR 4502[b]; CPL 60.10). The privilege exists to protect the sanctity of the marriage relationship. However, there are limits to the privilege as illustrated by today's decision by the Third Department in People v Powers, 2007 NY Slip Op 06181.

In that case the defendant was being investigated for committing sodomy on the 14-year daughter of the woman with whom he was living and later married. During the course of the investigation, when he was married, the police recorded a telephone conversation between defendant and his wife in which he admitted to having oral sex with the wife's daughter. This recording was admitted into evidence. The defendant claimed that the communication was protected by the marital privilege.

The Court rejected the defendant's argument and affirmed his conviction stating:

no such privilege exists where the communication arises out of the abuse of a spouse's child upon the theory that the wrong to the child is equally a wrong to the . . . spouse and that the performance of the injury is equally as destructive of the marriage (quotes and citations omitted).

Thus, the Court found that the marital privilege, whose purpose is to protect the marriage, cannot be used to conceal acts which are themselves destructive to the marriage.

Governor's Press Secretary Reponds To The Possibility of Senate Hearings

Yesterday, the Governor's Press Secretary Christine Anderson issued a Press Release commenting on the possibility that the State Senate will conduct hearings into whether Majority Leader Bruno was improperly surveilled by the Governor. Ms. Anderson stated that such an investigation is unnecessary since both the Attorney General's Office and State Inspector General’s Office just completed comprehensive reviews of the allegations that Senator Bruno had been surveilled, and both investigations concluded that no surveillance or criminal or civil illegal conduct had occurred. She claimed that any Senate investigation would be partisan and would be a complete waste of State taxpayer dollars. She also claimed that the State Senate lacked the constitutional authority to conduct investigatory hearings into the internal operations of the Governor’s Office.

The war of words between the Governor's office and Senator Bruno does not appear to be diminishing, and the story has the potential to grow even larger.

Criminal Defense Counsel May Not Publish Name Of Sex Abuse Victim In Order To Conduct Investigation

Last week the First Department issued an important ruling protecting the identity of sexual abuse victims. The ruling affirmed an order which prevented defense counsel from publishing the name of a sexual abuse victim in order to investigate the victim's credibility - Matter of Fischetti v Scherer, 2007 NY Slip Op 06174.

The matter arose from the prosecution of well-known Broadway Actor James Barbour. Barbour was charged with Criminal Sexual Act in the Third Degree (Penal Law § 130.40[2]) and Sexual Abuse in the Third Degree (Penal Law § 130.55) based on allegations that he abused a 15-year girl in 2001. The day before Barbour's arraignment, the District Attorney's office provided information regarding the matter to the New York Daily News and the New York Post. On the day of arraignment, the Post ran a headline entitled, "Beast of Broadway: Sex rap vs. Beauty' Star," and both papers ran articles describing the charges that Barbour seduced a 15-year-old fan into "groping" him and allowing him to "grope" her, and that on another occasion they engaged in oral sex. In addition, both papers' articles reported a hot-line telephone number created by the District Attorney's office for anyone else who might have similar criminal allegations to report against Barbour. In fact, the next day's New York Post reported that at the arraignment, the People had provided information that another girl had come forward claiming Barbour seduced her seven years earlier, when she was 13. 

At the next court appearance, the District Attorney protested about comments made to the press and the media by defense counsel, and asked the court to direct both sides to refrain from commenting on the evidence outside the courtroom. In responding to this oral application, Barbour's defense attorney, Ronald P. Fischetti, proposed to set up his own hot line, for any men who had been falsely accused by this victim. After considering written submissions, the court issued an order granting the People's application only "to the limited extent" of "directing defense counsel to refrain from publishing the name of the complainant as a means of investigating her credibility." The court reasoned that such publicity would taint the jury pool, and added, "there are more appropriate and reliable ways to investigate such issues which do not include publication of the complainant's name in the press."

As a result, Barbour's defense counsel Fischetti commenced an article 78 proceeding to vacate the order and prohibiting the court from initiating contempt proceedings for any violation of the order. Fischetti argued that order violated his First Amendment right of free speech and his client's right under the Sixth Amendment to effective assistance of counsel since the order prevented him from conducting a reasonable investigation. He also claimed that there was no statutory authority for the court to order restrictions on his speech.

The First Department rejected Fischetti's arguments and upheld the order. The Court stated that reasonable limits may be imposed upon speech in criminal matters, and that it is appropriate to take into consideration both the privacy interests of the victim herself, and the interest of the State in encouraging victims of such crimes generally to report these offenses without fear of exposure. It stated that the State's interest in encouraging victims of sex crimes to report sex crimes without fear of exposure was "highly significant." And it added:

Indeed, it is hard to imagine many victims of sex crimes being willing to come forward if they found that their names were subject to being published in newspapers in relation to those crimes, in a purported effort by defense counsel to conduct investigations into possible grounds to impeach the victim's credibility.

The First Department also found that the restriction on Fischetti's speech found support in statutes protecting the identity and reputation of complainants in sex offense cases - especially Civil Rights Law § 50-b(1).

Moreover, the Court found that the prohibition on Fischetti's speech was limited as it only restricted the publication of the victim's name, and that Fischetti made no good faith showing of his inability to conduct an investigation without publication of the victim's name:

[I]n the absence of any such good faith basis for the suggestion that the complainant had a history of making false accusations, the significant interests in encouraging victims of such crimes to report these offenses without fear of exposure outweighs what would amount to a fishing expedition by petitioner.

There are a couple of problems with the Court's analysis. As pointed out by Fischetti, Civil Rights Law § 50-b(1) provides in pertinent part:

The identity of any victim of a sex offense * * * shall  be  confidential.  No report, paper, picture,  photograph, court file or other documents, in the custody or possession of any public officer or employee, which  identifies such a victim shall be made available for public inspection. No such public officer or employee shall disclose any portion of any police report, court  file, or other  document, which tends to identify such a victim * * *.

Thus, Civil Rights Law § 50-b(1) seems to only prevent disclosure of a victim's identity by public officials. A criminal defense attorney is not a public official. In addition, the Rape Shield Law - CPL 60.42 - only prevents the admissibility at trial of evidence of a victim's sexual conduct. It mentions nothing about the victim's identity, or disclosing the victim's identity prior to trial. Thus, while these statutes might be generally seen as protecting a victim of sexual abuse, they do not seem to directly prevent the type of disclosure of her identity contemplated by Fischetti.

Also, it is difficult to imagine how Fischetti could demonstrate a good faith basis that the victim had a history of making false accusations without publicizing her name so that others could come forward with such a history. It does seem particularly inequitable that the District Attorney was permitted to post a hotline in a newspaper to seek out other potential victims, while the defendant was not allowed to use the same technique.

In its decision, the First Department explicitly recognized that there exists an uneven playing field between prosecutors and defense counsel in criminal cases, and that prosecutors have pronounced advantages in the initial stages of investigation and prosecution. However, given what happened in the Duke Lacrosse case, one wonders whether it is wise to continue to allow this uneven playing field to exist at the initial stages of a criminal case.

Prejudgment Interest In "Serious Injury" Actions Is Calculated From When Common-Law Liability Attaches

Did the Second Department issue somewhat conflicting decisions last week in "serious injury" automobile-related personal injury actions?

As reported in my Previous Post, in Abbas v Cole, 2007 NY Slip Op 06092, the Second Department held that even when a defendant defaults, a plaintiff still must demonstrate the threshold requirement of a "serious injury" within the meaning of Insurance Law § 5102(d) at an inquest on damages in order to recover pain and suffering damages. This decision would seem to suggest that before a defendant is liable for any money damages, "serious injury" must be established.

However, the same day that the Second Department decided Abbas, the Court also decided Van Nostrand v Froehlich, 2007 NY Slip Op 06108. In that case, the Court held that in an automobile-related personal injury action where the "serious injury" threshold is an issue,  prejudgment interest under CPLR 5002 is calculated from the date common-law liability attaches in favor of the plaintiff, either by default, summary judgment, or bifurcated liability trial, even though the plaintiff has yet to establish the existence of a "serious injury." Thus, in other words "serious injury" need not yet be established in order for a plaintiff to be entitled to prejudgment interest.

Can these decisions be reconciled?  The issue revolves around the question of whether the "serious injury" requirement is a question of liability or damages. The Van Nostrand decision takes the position that "serious injury" is an issue of damages, whereas the Abbas decision seems to suggest that "serious injury" is an issue of liability since it must be established even after a default.

For now I will leave it to the reader to determine whether these decisions are compatible. I will only note that these cases once again illustrate that the Comprehensive Motor Vehicle Insurance Reparation Act (Insurance Law art 51, the "No-Fault Law"), which was in part designed to decrease litigation in automobile accident cases, has in fact caused a nightmare in its interpretation and application.

Plaintiff Granted Default Judgment On Liability Still Must Demonstrate "Serious Injury" At Inquest On Damages

Before there can be any recovery for pain and suffering arising from a motor vehicle accident, a plaintiff must demonstrate that he has suffered a "serious injury" within the meaning of Insurance Law § 5102(d). But what if a defendant defaults in answering the complaint, and thus concedes liability for the motor vehicle accident. Last week the Second Department in Abbas v Cole, 2007 NY Slip Op 06092 held that even when a defendant defaults, a plaintiff still must demonstrate the threshold requirement of a "serious injury" at an inquest on damages in order to recover pain and suffering damages. In so holding, the Court stated that it was comporting with the original legislative intent of the "no-fault" law, which was "to eliminate recovery in a common-law tort action for minor personal injuries" (Zecca v Riccardelli, 293 AD2d 31, 33).

The Court stated that the only exception to this rule would be where the defaulting defendant has, in effect, conceded the issue of serious injury after same has been pleaded and raised by the plaintiff (see e.g., Beresford v Waheed, 302 AD2d 342 - law of the case doctrine precluded reconsideration of the "serious injury" issue).

Governor Signs New Law To Enhance Safety Standards Of Office Based Surgical Procedures

On July 20th, Governor Spitzer signed new legislation intended to protect thousands of patients undergoing surgical procedures in physicians’ offices. The legislation will provide for appropriate patient safety standards regardless of whether a surgery is performed in a hospital, ambulatory surgery center, or a doctor’s office. Currently, surgeries performed in doctor’s offices are not regulated in New York State. Practitioners are not currently bound by the same credentialing and safety requirements as hospitals and are not required to report adverse outcomes. In addition, office based surgeries have doubled over the past decade, and such procedures have also become increasingly complicated and invasive. Thus, there was seen a need to increase patient safety. 

The new law:

• Requires office-based surgery be performed by physicians in a setting that has obtained and maintained accreditation from an entity approved by the state Health Commissioner.
• Requires that operating in an un-accredited setting would constitute professional medical misconduct.
• Requires physicians to report adverse office-based surgery events including patient deaths and unplanned hospital admissions within one business day to the Department of Health Patient Safety Center.
• Requires that individual reports be considered confidential and not be subject to the Freedom of Information Law or discovery.

In his Press Release, Governor Spitzer remarked, "We have a responsibility to protect public safety by ensuring that facilities that offer office-based surgeries meet rigorous safety standards.”

The legislation is based on recommendations made by the Committee on Quality Assurance in Office-Based Surgery in their Report of January 2007. The new legislation amends the Education Law and the Public Health Law by adding additional sections. The full text of the new legislation can be read by Clicking Here and searching on Bill Number: S6052-A