New York City’s Mandatory Vaccination Order: Parental Objections & Judicial Reinforcement

Written by Sean Ferrito


 The Outbreak

 In 2000, the United States Center for Disease Control and Prevention declared measles, a highly contagious infectious disease, eliminated. This came after decades of national vaccination efforts. Recently, however, there has been an alarming spike in the number of reported cases of measles nationwide. From January 1 to May 3, 2019, there have been 764 confirmed cases of the disease, across 23 states. The total has been increasing at a rate of 60 cases per week. This represents the highest number of cases in 25 years, since 1994.

The CDC points to travel and vaccination abstinence as principle causes of the outbreaks. Many citizens choose not to vaccinate themselves or their children for religious reasons; others for moral or scientific reasons. Due to low vaccination numbers, Rockland County and Brooklyn, New York have seen spikes in measles diagnoses that have prompted government action. In Williamsburg, Brooklyn, there have been 285 diagnoses during the current outbreak. During the entire 2016 calendar year, only 85 diagnoses were reported nationwide.

Government Action

On April 9, 2019, Dr. Oxiris Barbot, Commissioner of the New York City Department of Health and Mental Hygiene, declared a public health emergency pursuant to Section 3.01 of the New York City Mental Health Code. Along with this declaration, the Commissioner issued an order to all persons who live, work, or attend school in Williamsburg, Brooklyn, and all parents and guardians of children who live, work, or attend school in Williamsburg.  The order requires that those within the area, who are not immune to measles and do not have a medical exemption, “shall be vaccinated.”

It is not clear whether the order requires “forced vaccination.” While the order provides that failure to comply is a misdemeanor and can result in fines and imprisonment, it does not specify what shall be done in instances of repeated refusal to vaccinated. The Department of Health and Mental Hygiene has stated that it will handle such matters on a “case-by-case” basis.

In a press release, the Health Department announced that those found to be non-compliant with the order will be issued a civil summons and must appear at a hearing. If the hearing officer upholds the summons, a penalty of $1,000 will be imposed. A failure to appear at the hearing or respond to the summons will result in a $2,000 fine.

Objections to the Order

On April 15, five mothers of children within the scope of the order filed a complaint against Dr. Barbot and the NYC Department of Health and Mental Hygiene in the Supreme Court of New York, Kings County. The mothers sought vacation of the order on scientific, religious, and moral grounds. The complaint alleged that there was “insufficient evidence of a measles epidemic or a dangerous outbreak to justify the respondents’ extraordinary measures, including forced vaccination.” Further, the mothers argued that the order violates their constitutional rights to exercise their religion, as their choices not to vaccinate their children stem from religious beliefs. The complaint also asserted that the order was unlawful because “forced vaccinations” raise issues of informed consent, medical ethics, and human rights.

Judicial Response

A few days after the complaint was received, the Honorable Lawrence Knipel issued a decision on the matter, and dismissed the case. Knipel addressed each one of the objections in turn, and concluded that the petitioners had failed to show that they were entitled to injunctive relief. Regarding the petitioner’s scientific objections, Knipel asserted that the Commissioner had a rational, non-pretextual bases for declaring a public health emergency and issuing the order. Knipel pointed to scientific data that indicates that the outbreak is the most significant in years, and Williamsburg is at the epicenter. Knipel also dismissed as merely speculative opinions of doctors that the petitioners presented, that the MMR vaccines pose a risk to human health.

Knipel then dismissed the petitioners’ religious objections. He stated that the petitioners’ affidavits simply said that the MMR vaccine was against their religious beliefs. These were insufficient to raise legitimate objections, according to Knipel, as they were not supported by accompanying affidavits of religious officials. Lastly, Knipel rejected the moral objections, concluding that the order does not compel forced vaccination. The judge also explained that informed consent is not an issue under these circumstances, as “[a] fireman need not obtain the informed consent of an owner before extinguishing a house fire.”


What is next in this battle is uncertain at the moment. Perhaps if those affected by the order can submit more sufficient evidence, they may be able to have the constitutional issue addressed by a court. Robert Krakow, an attorney who represented one of the mothers, expressed an intent to continue pursuing the case. Krakow acknowledged the importance of public health, but stated that he wants to “make certain that public health authorities choose methods that are appropriate to the circumstances.”


Amanda Robert, Judge blocks parents’ move to quash measles vaccination order, ABA Journal (Apr. 22, 2019).

C.F. v. New York Cty Dep’t of Health and Mental Hygiene, No. 508356 (N.Y. Sup. Ct. Kings Cty. 2019)

Complaint for Petitioners, C.F., et al., No. 508356 (N.Y. Sup. Ct. Kings Cty. 2019)

Donald G. McNeil Jr., New York City is Requiring Vaccinations Against Measles. Can Officials Do That?, The New York Times (Apr. 9, 2019).

Order of the Commissioner, New York City Dep’t of Health and Mental Hygiene (Apr. 9, 2019)

Press Release, New York City Dep’t of Health and Mental Hygiene, Health Department Issuing Civil Summonses to Three People for Failing to Comply with Commissioner’s Emergency Vaccination Order During Measles Outbreak (Apr. 18, 2019).

U.S. Dep’t of Health & Human Services, Centers for Disease Control and Prevention, Measles Cases and Outbreaks (May 6, 2019).

Photo courtesy of Medical News Today

Published: Katie Hyma

We are proud to announce that 3L and Associate Member Katie Hyma will be published this spring! Her Note will be published in Book 1 of Syracuse Law Review.

Publication: Syracuse Law Review, Volume 69, Book 1

Note: Legislative Ballast: The Case for Repealing 35 U.S.C. § 271(f)

Katie is a third-year student at Syracuse University College of Law.  She earned a B.S. and an M.S. in Microbiology and Molecular Genetics from Michigan State University.  She also earned a Ph.D. in Evolution, Ecology, and Population Biology from Washington University in St. Louis MO.  Prior to joining the legal profession, Katie worked as a scientist at Cornell University’s Institute for Biotechnology.

During the spring semester of her third year, Katie will serve as a Pro Bono Scholar with Volunteer Legal Services Project of Monroe County in Rochester, NY.

Katie currently works at Pepper Hamilton, LLP, in Rochester, NY, as a registered Patent Agent.  She will continue with Pepper Hamilton as an associate upon admission to the New York bar.


Published: Amy Johnson

We are proud to announce that 3L and Lead Articles Editor Amy Johnson will be published this spring! Her Note will be featured Syracuse Law Review.

Publication: Syracuse Law Review, Volume 69, Book 2

Note: The Complexity of Copyright: The Highest Court’s Attempt to “Fix” a Nonexistent Problem and a Simple Solution

Amy is a third-year student at Syracuse University College of Law. She received her undergraduate degree from Towson University where she majored in Public Relations and Advertising and was a member of the dance team.

Amy serves as Lead Articles Editor for the Syracuse Law Review and a research assistant for Professor Laura Lape. She also works in the College of Law as an Academic Success Fellow.

Amy was a summer associate at Arnold & Porter in Washington, D.C. during the summer of 2018. She will return to Arnold & Porter following graduation this year.


Syngenta Settles U.S. Corn Litigation

Written By Erika Hooker


On Tuesday, September 26, 2017, Syngenta agreed to settle one of the largest legal battles in the company’s 17-year history.


Syngenta is a Swiss-based agribusiness, with customers across the globe. In 2010, Syngenta began selling “a strain of insect-resistant GMO corn called Agrisure Viptera” in the United States, as well Agrisure Duracade, another string of GMO corn.

In the United States, the process of commercialization for seeds with GMO traits requires several approvals from different federal agencies, where representations about the new GMO trait must be made. In its petition for deregulation, Syngenta stated that the two new GMO traits would not affect the U.S. corn export markets. It also stated in its petition that applications for approval with export market countries were underway and that Syngenta would educate its growers in order to keep the seed away from markets where it was not yet approved.

In 2010 and 2013, the traits were deregulated in the United States, and the varieties containing the genes were commercialized for the growing seasons. During the 2012 and 2013 growing seasons in the U.S., Syngenta sold even more Viptera than the first year and did not require growers to implement any practices to reduce cross-pollination and contamination. Through cross-pollination, the GMO traits in Viptera contaminated corn grown by farmers who had not purchased Syngenta’s seeds. Additionally, both Viptera and Duracade corn was commingled at grain elevators and storage facilities.

Syngenta originally applied for import approval from China in 2010, but it was not granted approval until December of 2014, three years after the commercialization of Viptera. Consequently, in November of 2013, China began rejecting all corn from the U.S. containing the GMO trait, saying it was contaminated. Due to cross pollination and contamination, banned corn included even that from farmers who had not purchased Syngenta seed.

Consequently, farmers sued Syngenta, stating through their lawyers that “Syngenta negligently commercialized the seeds before obtaining import approval from China, then a major buyer of U.S. corn.”


This major settlement, approximated to pay out close to $1.5 billion, came amid a trial in Minnesota state court in which “around 22,000 farmers were seeking $400 million.” It was also on the heels of a $218 million-dollar award to farmers in Kansas from a federal jury trial, in addition to numerous other pending lawsuits where farmers were suing Syngenta.

The affected farmers claimed that the loss of the Chinese market caused corn prices to decrease significantly in the U.S., creating significant economic harm to them. Additionally, the farmers involved in the lawsuit argued that (a) Syngenta misrepresented how it would control Viptera from contaminating other crops, (b) Syngenta commercialized Viptera, knowing China would not approve the GMO traits until sometime after the trait had entered export markets, and (c) Syngenta actively misled both farmers and grain storage companies about the importance of the Chinese market and the imminence of its approval. The farmers also claimed that Syngenta knew China was a large and growing export market for U.S. corn.

Syngenta responded by pointing to biotechnology industry lists from the years 2007 and 2009 – the years just prior to the deregulation of the GMO traits – which did not list China as a key import country for corn. Additionally, Syngenta argued that two droughts in the years leading up to the release of Viptera had increased corn prices, while a good year the same time Viptera was released set off a surplus season, dropping prices.

Ultimately, a settlement was reached. According to Syngenta spokesman Paul Minehart, the $1.5 billion dollar sum is a settlement with more than 100,000 farmers, and resolves all U.S. farmers’ litigation.


Sources Cited

Geoff Colvin, Inside China’s $43 Billion Bid for Food Security, Fortune Finance (April 21, 2017).

In re Syngenta Litig., No. 27-CV-15-3785, 2016 Minn. Dist. LEXIS 6 (Minn. Dist. Ct. April 7, 2016).

Jef Feeley and Margaret Cronin Fisk, Syngenta Agrees to Pay More than $1.4 Billion in Corn Accord, Bloomberg Markets (Sept. 26, 2017).

Todd Neeley, Syngenta’s Viptera Corn: Trial Dates Set in 7 of 22 Class-Action Lawsuits-DTN, Ag Fax (July 10, 2017).

Photo courtesy of Farm Journal.

Case Study: Roy Cockrum, et al. v. Donald J. Trump for President, Inc. and Roger Stone

Written By Nicole Macris



During the 2016 Presidential Election, an unidentified hacker broke into the Democratic National Convention’s database and stole more than one 100 accounts of donors, staffers, and supporters alike. WikiLeaks later received that information, making it public via its website on July 25, 2016. The hack left of individuals vulnerable and exposed. Three of the affected individuals–Roy Cockrum, Scott Comer, and Eric Schoenberg–have now brought suit to recover for their invasion of privacy.


The plaintiffs–two donors and one former DNC staffer– allege that the WikiLeaks disclosures have chilled participation in vital parts of the democratic process, campaign financing, and advocacy. Private identifying information–including social security numbers, dates of birth, addresses, and phone numbers–were made public, and they allege that this now subjects them to a potential lifetime of identity theft and subsequent credit complications.

Moreover, Cockrum’s donations to specific candidates running for public office, state Democratic parties, and the DNC were publicized, which, the Complaint alleges, resulted in a chilling effect with respect to future political contributions. Comer’s emails, discussing his conflicts with colleagues, health issues, and details of his sexual orientation, were also published. The dissemination of their private information and emails, the plaintiffs further allege, resulted in intimidation and fear of using normal technological means of communication for advocacy and financial purposes.

Consequently, on July 12, 2017, the plaintiffs filed suit in the U.S. District Court for the District of Columbia. The allegations set forth in the Complaint assert that the defendants violated the plaintiffs’ privacy rights by disseminating private information about them, in a conspiracy with Russian agents, by way of WikiLeaks, DCLeaks, and Guccifer 2.0, all in violation of 42 U.S.C. § 1985(3). Named as defendants are Donald J. Trump for President, Inc. and Roger Stone, an advisor to the 2016 Trump Campaign.

The Complaint further alleges that the defendants are liable for the public disclosure of private facts, pursuant to D.C. law. In order to prevail on this claim, the plaintiffs must prove “(1) publicity, (2) absent waiver or privilege, (3) given to private facts, (4) in which the public has no legitimate concern (5) and which would be highly offensive to a reasonable person of ordinary sensibilities[.]”

Case law dictates that the dissemination of personal information, such as Social Security numbers and identification information, falls within the “highly offensive” category of private information that should not be made public without waiver. The crux, however, is determining whether disseminating the private information falls within one of the three exceptions, namely, whether it is (1) “crucial to the vitality of democracy,” (2) of public concern regarding current events, public affairs, or (3) information that could protect others or is already of public record. The plaintiffs claim that the information published fails to fall within one of the aforementioned exceptions.

Nevertheless, one crucial question remains: are the defendants culpable for disseminating the plaintiffs’ information and emails? This is where the conspiracy claim comes into play; for without a connection to the third parties, the defendants may not be liable for the published information. Thus, 42 U.S.C. § 1985(3) applies in order to establish the causation of the alleged injuries. The plaintiffs specifically rely on the harm caused by intimidation and injury resulting from supporting one candidate over another, as set forth in the statute:

. . . conspir[acy] to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy . . . .

Despite all of this, the Complaint turns on the connection between the defendants and third parties for the purposes of holding the defendants culpable for the entirety of the lawsuit. Without a finding of the alleged conspiracy, the entire cause of action could fail. Thus, this action depends on plaintiffs establishing their burden of proof with regard to the defendants’ alleged conspired with Russian agents, Gufficer 2.0, DCLeaks, and WikiLeaks.

Several points set forth in the complaint either state or add to the assertion that there was a connection between Trump for President, Inc., Roger Stone, and the aforementioned third parties. While many of the factual allegations set forth in the Complaint have been extensively covered and discussed in the media, the Complaint works to bridge the gap and form the conspiracy relationship by way of logical assertions.

• Paragraphs 9–10, 178, 180: United States government reports conclude that Russia is the culprit of the DNC hacking, and the defendants, thereafter, reaped the benefits;

• Paragraph 11: Trump for President campaign officials had/have ties to Russia, and use these ties to use the information hacked by Russia to their benefit;

• Paragraph 13: The campaign officials entered into agreements with Russia;

• Paragraphs 142–155: Defendants called attention to the hacked, and subsequently published, emails and information, and did so prior to the actual publication by WikiLeaks; and

• Paragraph 182: Defendants (1) denied Russia’s involvement, (2) undermined accountability efforts, and (3) concealed Russian contacts in order to further conceal involvement in the alleged conspiracy.

While this case is in its infancy, it is possible that the discovery, motions, and potential trial may lead to political and constitutional issues overwhelmingly more controversial than the DNC hack or alleged injuries at issue here.


Sources Cited

Andy Wright, DNC Hack Victims Sue Trump Campaign and Roger Stone, Just Security (July 12, 2017).

Budik v. Howard Univ. Hosp., 986 F. Supp.2d 1 (D.D.C. 2013).

Cockrum, et al. v. Donald J. Trump for President and Stone, Complaint, Case No. 1:17-cv-01370, Dkt. No. 1 (July 12, 2017).

Eric Lichtblau and Eric Schmitt, Hack of Democrats’ Accounts Was Wider Than Believed, Officials Say, N.Y. Times, (Aug. 10, 2016).

Foretich v. Lifetime Cable, 777 F. Supp. 47 (D.D.C. 1991).

Grunseth V. Marriot Corp., 872 F. Supp. 1069 (D.D.C. 1995).

Susan Hennessey and Helen Klein Murillo, Is It A Crime?: Russian Election Meddling and Accomplice Liability Under the Computer Fraud and Abuse Act, Lawfare (July 13, 2017).

Wolf v. Regardie, 553 A.2d 1213, 1220 (D.C. 1989).

Trump’s Travel Ban: What comes next?

Written by: Conor Tallet

On January 27, 2017, President Donald J. Trump issued Executive Order No. 13769, commonly known as the “travel ban.” When the Ninth Circuit blocked it, President Trump issued a “revised travel ban”on March 6, 2017 via Executive Order No. 13780. The Department of Justice has appealed the blocking of the orders to the Supreme Court, and the question as to whether or not the Court will act remains.

The revised order reworked provisions of the first travel ban that were at issue in the Ninth Circuit. Specifically, Section 2(c) of the order temporarily suspends new visas for citizens of six countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. The ban’s stated purpose was to decrease the risk of terrorist organizations from entering into the United States. Consequently, the order explained that the six listed countries had been “significantly compromised by terrorist organizations, or contain active conflict zones.” While such a purpose may appear clear on its face, a key question in evaluating this ban has been whether it violates the Establishment Clause of the First Amendment of the Constitution.

The Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” Essentially, this means that the government cannot establish an official religion of the United States or pass any laws that favor or inhibit a particular religion.

The primary Establishment Clause test utilized by courts today is derived from Lemon v. Kurtzman, and the rest requires that courts analyze a government action’s purpose, effect, and entanglement with religion. If a court finds the government acted with a primary religious purpose, had the effect of advancing or inhibiting religion, or was sufficiently entangled with religion, it will strike the law down as unconstitutional in violation of the Establishment Clause. Under this Lemon test, a challenger needs to show only one of the three prongs to succeed.

Here, six Muslim individuals, and three organizations that represented Muslim clients, asserted that they would be harmed by the implementation of the revised travel ban. In turn, they filed a lawsuit in the United States District Court of Maryland seeking a preliminary injunction. The District Court granted the injunction and determined that the plaintiffs were likely to succeed on the merits of an Establishment Clause claim.

After the ruling was appealed, the Fourth Circuit upheld the Maryland District Court’s decision to block the revised travel ban on May 25, 2017, finding the ban to be in violation of the Establishment Clause. In its analysis, the Fourth Circuit employed the Lemon test and viewed extrinsic evidence on the record from the viewpoint of a reasonable observer to determine that the revised travel ban had a primary religious purpose.

One question that arose revolved around whether or not courts should be permitted to consider extrinsic evidence when assessing the purpose. In the Lemon test analysis, a court determines not only the government’s stated purpose, but also the purpose from a reasonable observer’s standpoint. Thus, in analyzing the purpose from the standpoint of a reasonable observer, it is proper for a court to take extrinsic evidence surrounding the implementation of a government action into account, just as the Fourth Circuit did in this case. However, in an age where society is constantly bombarded with information through countless avenues of communication, it is worth asking how much extrinsic evidence a court should take into consideration when attempting to determine the primary purpose of a governmental action.

In this case, the District Court of Maryland looked to President Trump’s campaign statements, rallies, interviews, and tweets in order to assess the various discussions surrounding the travel ban. More specifically, the court assessed the choice of language such as banning “Muslims” as opposed to banning “terrorists.” Thus, the Fourth Circuit determined that the abundance of extrinsic evidence on the record, “viewed from the standpoint of the reasonable observer, creates a compelling case that [the revised travel ban’s] primary purpose is religious.”

Furthermore, in this case, the Fourth Circuit held that the District Court’s use of such extrinsic evidence, in holding that the order was a violation, was proper to show a primary religious purpose disguised in terms of national security to circumvent Establishment Clause scrutiny. Accordingly, the Fourth Circuit concluded that President Trump’s statements revealed his “desire to exclude Muslims from the United States” in violation of the Establishment Clause.

On June 1, 2017, the Department of Justice filed a petition with the Supreme Court, seeking review of the Fourth Circuit’s decision.

Whether or not the Supreme Court will hear the case remains to be seen. Some experts argue that the court will likely grant certiorari and hear the appeal, saying that “[w]hen a major presidential initiative is ruled unconstitutional by a federal appeals court, a review by the Supreme Court almost always follows.” On the other hand, rulings in the Hawaii District Court, Maryland District Court, Washington District Court, Fourth Circuit, and Ninth Circuit have remained consistent, blocking both the travel ban and the revised travel ban. With consistent interpretation and no circuit splits, some experts argue that there is no reason for the Supreme Court to hear the case. Only time will tell.

• • • • • • • • • • • • • • • • • • • • • • • • • • •

Sources Cited      

Adam Liptak, The Supreme Court’s Options in the Travel Ban Case, NY Times (Jun. 2, 2017).

Int’l Refugee Assistance Project v. Trump, 2017 WL 2273306 (4th Cir. 2017).

Ryan Lovelace, Will the Supreme Court Take up Trump’s Travel Ban?, Washington Examiner (Jun. 3, 2017).

Int’l Refugee Assistance Project v. Trump, 2017 WL 1018235 (D. Md. 2017).

Federal Rule of Civil Procedure 26(b)(1)

As it currently stands, the text of FRCP 26(b)(1) states the following: “Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense, including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identify and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.”

The proposed amendment would limit the broad scope of the current rule by requiring that discovery be “proportional to the needs of the case.” The text of the proposed rule is as follows: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefits.” The proposal would eliminate the option to have discovery “relevant to the action” and instead limits discovery to the claims and defenses in the action.

The Advisory Committee has decided to enact this more tailored version of the previous rule due to the fact that the old rule allowed discovery of any information so long as it was reasonably calculated to lead to the discovery of admissible evidence. Despite a revision of the rule in 2000, many lawyers and judges reading that language have concluded that, since almost any information could potentially lead to relevant and admissible evidence, almost anything is discoverable. Given the growth in electronically stored information (“ESI”) and advances in storage capability, such an interpretation has rendered the discovery process unduly burdensome and expensive. The new rule will become effective on December 1, 2015.

Rigano v. Vibar Const., Inc.

The issue decided in the case is whether a notice of mechanic’s lien can be amended nunc pro tunc to reflect the name of the true owner of the property or whether the misnomer invalidates the lien.

George Vigogna (sole shareholder of Vibar Constructions Corp.) and Nick Rigano (sole shareholder of Fawn Builders, Inc.) were business partners for over 35 years up until the dispute at question arose in 2007. Both parties often worked together, split their profits and rarely put their business agreements in writing.

During the project at issue, Vigogna’s company constructed a driveway to access a property and claims that Rigano’s company failed to compensate them for the construction of the road. Vigogna’s company filed a notice of a mechanic’s lien on the property in order to recover costs for construction of the road. Rigano sought to have the lien discharged on the grounds that he, and not his company owned the property, and that the lien was invalid. Vigogna sought to amend the lien. The Supreme Court granted Rigano’s petition and discharged the lien and the Appellate Division affirmed holding that “a misidentification of the true owner is a jurisdictional defect which cannot be cured by an amendment nunc pro tunc.”

The Court of Appeals reversed the Appellate Division’s holding. They referenced Matter of Niagara Venture v. Sicoli & Massaro, where they stated in that case that, “Substantial compliance . . . shall be sufficient for the validity of a lien and to give jurisdiction to the courts to enforce the same . . .  and a failure to state the name of the true owner . . . or a misdescription of the true owner, shall not affect the validity of the lien.” The Court also referenced Article 2 of the Lien Law which says they are to be construed liberally.

Combining these principles, the Court said in these particular circumstances, that the amendment sought was authorized and the defect in the lien was a misdescription, which allowed the amendment, and not a misidentification.

998 N.Y.S. 2d 748 (N.Y. 2014)

View Full Decision on Westlaw


Farruggia v. Town of Penfield

This appeal addresses an order by the New York Supreme Court denying summary judgment, granting summary judgment, denying partial summary judgment, and granting a motion for leave to amend. The Plaintiff, Gaetano Farruggia, was a construction worker and backhoe operator. The Defendant, Town of Penfield, hired the Plaintiff’s employer to complete a project (Project) on the Co-Defendant’s, Kenneth and Suzanne Hershey, property. The Project involved performing paving work on the sidewalk and driveway. While the Project was located on the co-defendant’s property, it was also located within the Defendant’s right-of-way through Co-Defendant’s property. It appears that an area of land (Landing Area) outside of Defendant’s right-of-way, but inside and wholly located on the Co-Defendant’s property was being used to park construction vehicles and equipment. At the end of a workday the Plaintiff parked a backhoe in the Landing Area which rolled into a ravine, injuring him. Plaintiff commenced an action against the Defendant and Co-Defendant under Labor Law and common-law negligence.

The Supreme Court denied Defendant’s motion for summary judgment in dismissing the Labor Law cause of action and granted Co-Defendant’s motion summary judgment. It also denied part of Plaintiff’s motion for partial summary judgment granted part of Plaintiff’s motion for leave to amend their bill of particulars. Defendant appealed and Plaintiff cross-appealed.

The Appellate Division agreed with Defendant that the lower court erred in denying Defendant’s motion for summary judgment in dismissing the Labor Law causes of action because the Defendant was not considered an “owner” for purposes of the statutes. The accident occurred well outside the Defendant’s right-of-way, and the Defendant had no interest or legal control over the Landing Area. Further, the Landing Area was completely on the Co-Defendant’s private property, the Co-Defendant had given Plaintiff permission to park the backhoe there and directed Plaintiff on exactly where to park. The Defendant had no power to do the same and there were other options available for Plaintiff to park. Further, the Appellate Division determined Plaintiff’s accident did not have “an elevation-related risk,” as protected against in Labor Law § 240(1). The Appellate Division also agreed with Defendant in denying the common-law negligence causes of action. The Appellate Division found that since Defendant established it did not occupy, own, or have control over the area of the accident (the Landing Area), and did not employ this area for a special use, it did not owe Plaintiff a duty of care.

The Appellate Division therefore modified the Supreme Court’s order by granting the Defendant’s summary judgment and dismissing the cross claim against it. The court also modified the lower courts order by totally denying Plaintiff’s motion for leave to amend, since there is no longer a basis against the town to do so.

The Appellate Division also agreed with Plaintiff in saying the lower court erred in dismissing the Labor Law and common-law negligence causes of action against the Co-Defendant. The Co-Defendants owned and controlled the accident area and did not establish that they did not have actual or constructive notice of the dangerous condition. The court modified the lower court’s order by denying Co-Defendant’s motion for summary judgment.

989 N.Y.S.2d 715 (4th Dep’t. 2014)

View Full Decision on Westlaw

Gristwood v. State

This appeal addresses an action for damages for wrongful conviction and imprisonment.  Claimant appeals from a Court of Claims judgment that awarded him $5,485.394 in damages. In 1996, Claimant was convicted of murder in the second degree and criminal possession of a weapon in the fourth degree for the death of his wife. The only evidence tying Claimant to the crime was an inculpatory statement made to police after a fifteen hour interrogation. In 2003, an individual confessed to the assault and murder of Claimant’s wife, providing details that accurately described the attack. Claimant moved to vacate the judgment of conviction on the grounds that those statements were “newly discovered evidence.” In 2006 County Court granted the motion and dismissed the indictment and Claimant was released after serving more than nine years in prison. Claimant thereafter brought a successful suit against the State.

In this appeal, the court held that the lower court did not abuse its discretion when it excluded the transcripts of Claimant’s criminal trial. Further, a determination of the Court of Claims will not be set aside unless their conclusions could not have been reached upon any fair interpretation of the evidence. The Court of Claims properly determined that the “new” 2003 confession established that Claimant did not commit the acts for which he was imprisoned.

The court found that Claimant had otherwise maintained his innocence and that his inculpatory statement was coerced. The voluntariness of a confession can be determined through “examination of the totality of the circumstances,” including duration, detention conditions, polygraph use or misuse, police attitude, threat existence and the age, and physical and mental state of the detainee. The court concluded that Claimant’s inculpatory statement was the product of police misconduct, including threats and harsh tactics. Claimant made the inculpatory statement after being awake and emotionally traumatized for thirty-four hours. He was interrogated in a six-by-eight-foot windowless room for fifteen hours and was devoid of food, drink and cigarettes. He was promised release if he passed a polygraph exam, which was determined to be “questionably reliable” due to his mental and physical state. The totality of the circumstances showed that Claimant’s statement was not voluntarily made, nor did he actually trigger his own conviction.

Finally, the court concluded that the nonpecuniary damages awarded did not materially deviate from reasonable compensation. The damages must “fairly and reasonably” compensate claimant under N.Y. Court of Claims Act § 8-b(6). “Traditional” tort, common-law and case law should guide the amount of present or future awards. “Proximately resulted” damages can be included after the period spanning conviction to the imprisonment term. Accordingly, the court determined that Claimant’s conviction and incarceration was detrimental to his personal and family life. The court ruled that Claimant correctly received damages for loss of liberty and pain and suffering, which included post-imprisonment psychological injuries.

990 N.Y.S.2d 386, 2014 N.Y Slip Op. 05259 (4th Dep’t. 2014)

View Full Decision on Westlaw