New York Legal Update

Surviving Partner Of Civil Union Not Entitled To Workers' Compensation Death Benefits

More and more jurisdictions are recognizing civil unions between same sex couples. What happens when one of the partners to a civil unions dies because of a work related injury. Is the surviving partner entitled to New York Workers' Compensation Death Benefits? The Third Department was faced with this question yesterday in Matter of Langan v State Farm Fire & Cas., 2007 NY Slip Op 10438 and decided that the surviving partner is not entitled to Workers' Compensation Death Benefits.

In that case, John Langan and Neal Conrad Spicehandler entered into a civil union in Vermont (see Vt Stat Ann, tit 15, § 1201) in November 2000. In February 2002, Spicehandler (decedent) was struck by a car while working. After undergoing resulting surgery the decedent died. Langan (claimant) filed workers' compensation claims for decedent's injuries, and for death benefits as decedent's surviving "spouse" pursuant to Workers' Compensation Law § 16 (1-a). The Worker's Compensation Board found that the claimant did not have standing as a "spouse" to assert the death benefits claim.

Under Workers' Compensation Law § 16 (1-a) certain benefits are payable to the surviving spouse, which is defined as "the legal spouse" of the deceased employee. No other definition of spouse if given.

On claimant's appeal, he made three arguments: (1) Workers' Compensation Law § 16 (1-a) includes a partner to a civil union as a surviving spouse; (2) the doctrine of comity required New York to recognize claimant as decedent's surviving spouse for death benefits purposes and, (3) the deprivation of death benefits to same-sex partners of a civil union violates the Equal Protection Clause of the US Constitution. The Third Department rejected each argument.

First, the Court examined the statute's plain language and legislative history and determined that a "legal spouse" was a husband or wife of a lawful marriage. Second the Court found that doctrine of comity did not require New York to confer upon partners of civil unions all of the legal benefits recognized by Vermont. The Court noted that while Vermont considered parties to a civil union to be "spouses" under that state's law it did not consider such parties to be part of a "marriage"(see Vt Stat Ann, tit 15, § 1204 [a], [b], [e] [9]; Vt Stat Ann, tit 15, § 1201 [2], [4]). The Court further stated that extension of benefits to civil union partners should entail a consideration of social and fiscal policy more appropriately left to the Legislature. Third, and finally, the Court found that prior case law had established established that confining marriage and all the laws pertaining either directly or indirectly to the marital relationship to different sex couples was not offensive to the Equal Protection Clause.

The Presumption Against Suicide: Was It Suicide Or Not?

It has been written in the case law that suicide is "contrary to the general conduct of mankind'" and "an improbability [in that] most men cling to life" (Mallory v Travelers' Ins. Co., 47 NY 52, 54-55 [1871]). Thus, in insurance law there has arisen the doctrine of the presumption against suicide. The presumption applies in actions to recover on life insurance policies, and it shifts the burden to the insurer to establish suicide as a defense only if no conclusion other than suicide may reasonably be drawn.

An interesting set of facts applying the presumption is reported in the First Department's decision last week in Green v William Penn Life Ins. Co. of N.Y., 2007 NY Slip Op 10076.

In that case, on February 20, 2002, plaintiff Lisa Green found her husband, Alan Green, who was 54 years old, lying in their bed when she arrived home from work around 6:30 pm. The bed was made and he was on top of the covers with a copy of the New York Times, his Palm Pilot and his portfolio lying next to him. Finding him unresponsive, she called 911. Emergency Medical Services technicians arrived and determined that Mr. Green was already dead. Members of the police department and the Office of the Chief Medical Examiner conducted an initial investigation for about six hours. Plaintiff's mother, her sister and Mr. Green's cousin and attorney, Richard Wolff, also came to the apartment.

An empty glass and two bottles of water were found on the nightstand next to the bed. In the top drawer of the nightstand were an empty bottle of hydrocodone pills and an empty bottle of Ambien pills. The hydrocodone bottle had contained 40 pills on January 23, 2002, when Mr. Green filled a prescription following hernia surgery, and the Ambien bottle had contained 30 pills when his prescription was refilled on February 6, 2002. In addition, 61 Vicodin pills out of 100 prescribed to Mr. Green on June 7, 2000 were found in the drawer. An empty vial of Percocet was also found, from a 1997 prescription for plaintiff.

Plaintiff would not permit an autopsy to be performed on Mr. Green because of the Jewish faith. Plaintiff also objected to a toxicological examination also for religious reasons, seeing no difference between it and an autopsy. After a funeral service, Mr. Green's body was cremated, notwithstanding Jewish law against the procedure. Plaintiff explained that it was Mr. Green's desire to have his ashes spread over Yankee Stadium, and that her "husband's wishes were more important than anything."

Sounds like suicide? Wait.

The plaintiff then sought the $500,000 death benefit of her husband's life insurance policy. The defendant insurance company refused to pay claiming Mr. Green committed suicide and the policy contained a clause limiting its obligation to repayment of the paid premiums if the insured committed suicide within two years of issuance of the policy. Plaintiff therefore commenced this action seeking to recover under the policy.

The trial court concluded that there was "no reasonable explanation in this case other than suicide," dismissed the complaint, and thus denied the wife the insurance proceeds.

On appeal, the First Department reversed finding that the trial court was wrong in concluding that there was no reasonable explanation in this case other than suicide. It stated that it was also possible to reasonably infer other causes for his death, including the possibility that Mr. Green accidentally overdosed on the pain or sleep medication he had been prescribed following his hernia surgery. The Court stated its obligation was to determine whether the trial court properly concluded that suicide was the only conclusion that could reasonably be drawn from the evidence. And as a matter of law, it found it was not.

The Court noted that his wife, the plaintiff, testified that her husband exhibited no signs of depression or other unusual behavior, and that there was evidence that he had scheduled a normal day the day his body was found and that he was upbeat, positive and excited about a new business he had begun. While his physician testified that the day before his death he expressed feelings of depression and anxiety and described problems with insomnia, Mr. Green also explicitly told his internist that he would never take his life, he was not suicidal, and that he was just down. The Court also noted that Mr. Green had made appointments, and was found with his palm pilot and portfolio out indicating that he was "a man engaged in life, not one determined to depart it." The Court also stated that it was impossible to determine how much medication Mr. Green had taken and that the wife's refusal to permit a toxicology exam or an autopsy on religious grounds did not compel the conclusion that the death was a suicide.

It would thus appear that the presumption against suicide is very strong.

Airline Bill Of Rights Upheld By Federal Court

Late yesterday the U.S. District Court in Albany dismissed a lawsuit challenging New York's recently enacted Airline Bill of Rights. The law which goes into effect on January 1st provides that airlines operating in New York can be fined up to $1,000 a passenger if they do not supply water, fresh air, power and working restrooms during lengthy delays on the tarmac.

The suit was brought by the Air Transport Association, whose members carry more than 90 percent of U.S. passenger and cargo traffic. The Association believed that commercial aviation is best regulated by the federal government and not 50 individual states.

In dismissing the suit,  U.S. District Judge Lawrence Kahn concluded that the provisions of the Airline Bill of Rights constitute a health and safety issue and not airline "services" that can be regulated only by federal authorities. He stated, "Fresh air, water, sanitation and food are necessities in the extreme situation in which this act applies. It threatens the public health to contain people on grounded airplanes for hours without these necessities, particularly, though not exclusively, if passengers include diabetics, young children, the sick or the frail."

The New York law is the first of its kind in the country, and yesterday's ruling raises the question of whether other states will enact similar laws. In a statement, the Air Transport Association said that the court had misinterpreted the law and that it was considering an appeal.

Will Your Neighbor's Deed Be Available Online?

More and more public records are being made available online. This is a generally a good development. After all, who wants to trudge on down to the County Clerk's Office and deal with the clerk or the microfiche reader. Various commercial enterprises are seeking to put this public data online seeking to make a buck. One such company is Data Tree, LLC.

On Tuesday the Court of Appeals had before it an interesting Freedom of Information request by Data Tree to get access to Suffolk County land records in order to put them online - Matter of Data Tree, LLC v Romaine, 2007 NY Slip Op 09906. 

Data Tree is a national company that provides online public land records such as deeds, mortgages, liens, judgments, releases and maps, and maintains a database of nearly two billion documents, providing its customers with immediate electronic access to the information. Its customers are those entities who purchase, sell, finance and insure property. Data Tree obtains the public land records by requesting them from county clerks, or other public officials who have the responsibility of recording and archiving such documents, throughout the country.

In January 2004, Data Tree, pursuant to the Freedom of Information Law (FOIL) [Public Officers Law § 84 et. seq.] wrote the Suffolk County Clerk's Office requesting copies of public land records from January 1, 1983 to the present. Data Tree requested the records in TIFF images or in images in the electronic format used by the County, on CD-Rom or other electronic storage medium regularly used by the County.

The Clerk denied the request on three grounds: (1) the FOIL request would require re-writing and reformatting of the data; (2) disclosure would constitute an unwarranted invasion of personal privacy due to the volume of the records requested and the commercial nature of Data Tree's business; and (3) the records were available for copying and/or downloading from the computer terminals at the Clerk's Office.

After the Clerk denied the request, Data Tree commenced an Article 78 proceeding directing the Clerk to provide the records. Both the Supreme Court and the Appellate Division granted summary judgment to the County denying Data Tree's request.

However, the Court of Appeals reversed and found that questions of fact existed as to whether compliance with Data Tree's request would require the Clerk to disclose private information exempt from FOIL, and whether the Clerk had the ability to comply with the request in the format sought by Data Tree.

The Court of Appeals stated that Data Tree's commercial motive for seeking the records was irrelevant; Data Tree was not seeking a list of names and addresses to solicit any business. Rather, Data Tree was seeking public land records for commercial reproduction online. The Court acknowledged that some of the documents could contain private information, such as social security numbers and dates of birth etc. However, the Court stated that there were questions whether such private information could be redacted and thus remitted the matter to Supreme Court to determine whether such information could be redacted. The Court also found that there was conflicting affidavits, and thus questions of fact, as to whether Data Tree's request could be fulfilled by merely retrieving information already maintained electronically by the Clerk's office or whether complying with Data Tree's request would require creating a new record.

The march of public data to online sources is likely unstoppable. The more appropriate question might be whether we should require all public agencies to put all data online easily accessible to all? Or should we rely on commercial enterprises like Data Tree to provide such information?   

Court Confirms Marble Hill Is Part Of Manhattan

One of the most interesting factoids about New York City geography is that the Marble Hill section of the Bronx is actually legally in the borough of Manhattan or New York County. The First Department confirmed this Tuesday in the case of Montesano v New York City Hous. Auth., 2007 NY Slip Op 09955.

This little geographic curiosity is set forth in the New York City Administrative Code § 2-202, entitled "Division into boroughs and boundaries thereof," which specifically provides that the borough of Manhattan "shall consist of the territory known as New York county" and includes "that portion of land commonly known as Marble Hill . . . for all purposes." The history of Marble Hill is that it was once part of the island of Manhattan, and bounded by the Harlem River and Spuyten Duyvil Creek and connected to the mainland.  After June 1895 it was severed from Manhattan when the Harlem River Ship Canal was dug, and it became an island surrounded by the canal and Spuyten Duyvil Creek. Prior to World War I, however, the creek was filled in, leaving Marble Hill part of the mainland. For many years residents were listed in the telephone directories of both Manhattan and the Bronx."

The case before the First Department was a personal injury action. The plaintiff fell while descending a allegedly defective interior staircase in her Marble Hill apartment building. The plaintiff commenced the action in Bronx County on the basis of her residence. However, the defendant moved to change venue pursuant to CPLR 511(b) and 510(1) to New York County alleging that the designation of Bronx County as the venue for the action was improper. Citing the Administrative Code section above, the history, and cases in other contexts, the First Department held that venue should be changed to New York County.

So, if you live in Marble Hill and want to use your residence as the basis for venue you must commence the action in New York County.

Application of Sex Offender Registration Act To Non-Sexual Kidnapping Is Constitutional

In April the Second Department held that it is constitutional to apply the Sex Offender Registration Act (see Correction Law § 168 et seq.) to persons convicted of certain nonsexual abduction-related crimes (People v Taylor, 42 AD2d 13 [2007], appeal dismissed 9 NY3d 887 [2007]) (See My Post of April 18, 2007).

Yesterday, the First Department agreed with the Second Department in People v Cintron, 2007 NY Slip Op 09919. 

Breach Of Fiduciary Duty Claim Against New York Stock Exchange And John Thain Dismissed

Yesterday the Appellate Division, First Department reversed a lower court ruling and dismissed a breach of fiduciary duty claim against the New York Stock Exchange and its Chief Executive Officer John Thain - Hyman v New York Stock Exch., Inc., 2007 NY Slip Op 09909.

The case arose when certain plaintiffs sold their Exchange memberships before an announced merger with Archipelago Holdings, Inc. - an all electronic stock exchange. After the announced merger, the value of Exchange memberships dramatically increased. The plaintiffs alleged that the Exchange and Thain breached their respective duties to disclose, prior to the sales of their Exchange memberships, the existence of merger negotiations between the Exchange and Archipelago, and that had there been full disclosure of the possibility of the merger, they would not have sold their seats prior to the announced merger.

The First Department held that the claim against the Exchange should have been dismissed because a corporation does not owe a fiduciary duty to its members or shareholders. With respect to the claim against Thain, the Court found that the plaintiffs failed to satisfy the pleading requirements of CPLR 3016(b) which requires that in cases alleging misrepresentation, fraud, and breach of trust the circumstances  constituting the wrong must be stated in detail. The Court fond that the plaintiffs should have been able to recite with more specificity Thain's actual words or actions that were alleged to have been misleading. 

Criminal Defendant May Consent To A Jury Of 11 Jurors

Is there anything magic in the number 12? The number 12 has long been associated with trial by jury but apparently no one knows precisely why the number of 12 jurors was adopted. In New York, the common law tradition of a 12 person jury was imported from England although the number 12 was not explicitly written into the earliest State Constitutions. Indeed to this day, the State Constitution appears to be somewhat fuzzy about the required number of jurors in a criminal trial.

Today, in People v Gajadhar, 2007 NY Slip Op 09903 the Court of Appeals decided there was no mystical significance to the number 12, and decided that a criminal defendant may consent to a deliberating jury of 11 individuals.

In that case, the defendant was on trial for intentional murder and other crimes. Defendant was tried before a 12-member jury along with several alternate jurors. At the end of the case, defense counsel informed the trial court that, in the event a juror became unavailable after deliberations began, defendant would not consent to the substitution of an alternate juror. The trial court thus dismissed the alternate jurors before deliberations began.

On the third day of deliberations, a juror became ill and had to be hospitalized for approximately one week. The court and the parties knew that it would be difficult to secure the attendance of all the witnesses, some of whom had to travel from other countries, and that a retrial would be burdensome for all involved. Defense counsel told the court that defendant wanted deliberations to continue with the remaining 11 jurors. The People raised concerns that prior case law prohibited a criminal defendant from consenting to a jury of less than 12. The trial court nevertheless granted defendant's request and the defendant executed a written waiver of his right to a jury of 12 citizens in open court. The 11 member jury then acquitted the defendant of intentional murder in the second degree, assault in the first degree and two counts of attempted second-degree murder, but convicted him of attempted robbery in the first degree and felony murder in the second degree.

On appeal, defendant adopted a position contrary to that presented during trial — he claimed that the State Constitution did not allow a defendant to consent to a jury of less than 12 members in any situation. The Appellate Division rejected defendant's contention and upheld the convictions. 

The Court of Appeals agreed with the Appellate Division and affirmed the defendant's conviction as well. The Court went through an extensive history of the 12 member jury and relied principally on Article I, Section 2 of the State Constitution which since 1938 has read:

[t]rial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law. . . . A jury trial may be waived by the defendant in all criminal cases, except those in which the crime charged may be punishable by death, by a written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense. The legislature may enact laws, not inconsistent herewith, governing the form, content, manner and time of presentation of the instrument effectuating such waiver (emphasis added)

The Court reasoned that since a (noncapital) criminal defendant was free to waive a jury entirely in order to have a judge act as the finder of fact (see CPL 320.10 [1]) it followed that if a juror became unavailable after deliberations have begun and there are no alternates that can be substituted, a defendant should be permitted to request that an 11-member jury decide his fate (so long as the defendant executed a written waiver in open court before the judge). The Court of Appeals also noted that a waiver of a 12 person jury was consistent with the principle that criminal defendants can waive many other fundamental constitutional rights such as: the right to confront accusers; the privilege against self-incrimination; the right to testify and to present a defense; the right to be free from unreasonable searches and seizures; and the right to be present during trial proceedings. The Court noted that after a defendant enters a knowing, voluntary and intelligent waiver of any of these rights, that choice cannot be challenged on appeal. And the Court did not see sufficient justification for applying a different rule to the right to a jury trial.

Justice Ciparick dissented from the Court's decision.

The Court's Decision is a good read on the history of the 12 person jury. If you can consent to an 11 member jury, is there any lower number that would be impermissible?

Trade NAFTA Professional Not Entitled to Unemployment Insurance Benefits

Under the North American Free Trade Agreement (NAFTA), certain professionals from Canada and Mexico may obtain a Trade NAFTA visa (TN) allowing them to work in the United States. This visa restricts the employment to a particular employer.

Last week, in Matter of Cale v Commissioner of Labor, 2007 NY Slip Op 09850, the Third Department held that if the professional position is eliminated by the employer the TN visa holder may not receive New York State unemployment insurance benefits. The Court stated that in order for an employee to be eligible for unemployment insurance benefits that employee must be considered "available" for work. And for non-United States citizens this requires a valid authorization from the Immigration and Naturalization Service to work in the U.S. However, since the TN visa restricts employment to a particular employer, the employee is not authorized to seek employment with a different employer, and thus is not available for employment, until the employee obtains another type of visa.   

It's A Dog Eat Dog World

Under New York's Agriculture and Markets Law, a dog which attacks a person without justification and causes serious physical injury or death to the person may be put to death (Agriculture and Markets Law § 121). But what should happen to a dog when it attacks another dog? The Second Department's case last week in Matter of Motta v Menendez, 2007 NY Slip Op 09778 points out that things have changed for the fate of such dogs. In that case a pit bull terrier named "Duke" attacked and injured another dog. This was after "Duke" had already been declared a dangerous dog after a hearing. The owner of the dog which was attacked thus commenced a special proceeding under Agriculture and Markets Law § 121to have "Duke" put to death. The lower courts agreed, and ordered that "Duke" be destroyed.

However, the Second Department reversed because at the time that the attack occurred Agriculture and Markets Law §121 did not provide that one dog attacking another was conduct subject to the penalty of destruction, nor was there any evidence that "Duke" had ever attacked a human. Thus, the Court sparred Duke's life and instead ordered his permanent and secure confinement.

The Agriculture and Markets Law § 121 has since been amended, and now permits a dog to be destroyed for attacking another dog.