E. Leo Milonas and Andrew C. Smith

According to the New York State Unified Court System’s 2017 Annual Report, during 2017 the four departments of the Appellate Division disposed of 9,569 appeals after argument or submission. The odds of obtaining a reversal or modification were 25 percent. Disappointed appellants will find comfort in the Court of Appeals’ reversal rate: 33 percent of the 142 appeals decided by New York’s highest court in 2017 resulted in a reversal. Not bad! This shows that our appellate courts are hard at work—and not just rubber stamps. We highlight some of the Appellate Division’s closely watched cases—including a number of reversals—from the first quarter of 2018.

First Department

Defamation. Falsely alleging that someone has a “loathsome disease”—one that is “contagious [or] attributed in any way to socially repugnant conduct”—may constitute defamation per se. In light of today’s societal views, does HIV qualify as a “loathsome disease”? In Nolan v. State of New York, 2018 N.Y. Slip Op. 00269 (1st Dept. Jan. 16, 2018), the First Department concluded that it does.

Claimant posed for a stock photograph that was used without her permission in an ad campaign apprising HIV-positive New Yorkers of their right not to be discriminated against. Claimant sued for defamation, alleging that the use of her photograph gave the false impression that she was HIV-positive, which she maintained is still considered a “loathsome disease.” Court of Claims granted claimant summary judgment on her claim for defamation per se.

Justice Angela Mazzarelli, writing for a unanimous panel, affirmed. The court held that the conduct at issue qualifies as defamation per se because “it can still be said that ostracism is a likely effect of a diagnosis of HIV.” The court noted, however, that it did not “in any way regard HIV or any other disease to be ‘loathsome.’” The court suggested that the “loathsome disease” category be reworked to make clear “that an imputation of a particular disease is actionable as defamation per se not because the disease is objectively shameful, but because…those who suffer from the condition are the unfortunate targets of outmoded attitudes and discrimination.”

Foreign Country Judgments. Must New York courts have jurisdiction over the defendant, whether in personam or in rem, in order to maintain a proceeding under CPLR Article 53 to enforce a foreign country judgment? In its latest foray into the ever-developing jurisprudence of personal jurisdiction, the First Department in AlbaniaBEG Ambient Sh.p.k. v. Enel S.p.A., 2018 N.Y. Slip. Op. 00928 (1st Dept. Feb. 8, 2018), answered in the affirmative.

Plaintiff commenced an Article 53 proceeding to enforce an Albanian judgment against two Italian defendants, neither of whom had any known presence or property in New York. Defendants moved to dismiss the proceeding for lack of personal jurisdiction and on the grounds that Article 53’s statutory requirements were not met. Plaintiff countered that, under the First Department’s recent decision in Abu Dhabi Commercial Bank v. Saad Trading, Contracting & Financial Services, 117 A.D.3d 609 (1st Dept. 2014), no jurisdictional predicate is required in an Article 53 proceeding. Supreme Court adopted plaintiff’s reasoning and denied the motion.

In a unanimous opinion authored by Justice David Friedman, the First Department reversed. The court declined to extend Abu Dhabi to this case: Abu Dhabi did not require a jurisdictional predicate because the defendant there did not mount a substantive challenge to the enforceability of the foreign judgment under Article 53, and so the court’s review was merely ministerial. In this case, however, where the defendants did challenge the enforceability of the Albanian judgment under Article 53, the court was required to establish a jurisdictional predicate.

Second Department

Fourth Amendment Search and Seizure. Does an occupant who is legally, but not physically, evicted retain a reasonable expectation of privacy in the residence under the Fourth Amendment? In People v. McCullum, 2018 N.Y. Slip Op. 00570 (2d Dept. Jan. 31, 2018), the Second Department concluded that any expectation of privacy ended at the time of the legal eviction.

Defendant had been occupying a bedroom in an apartment when a New York City Marshall executed a “legal possession” by changing the locks (yet leaving the occupants’ personal property inside). Later that day, police officers entered the apartment to investigate a report of trespassing and arrested one of the occupants. Upon searching the apartment, the police officers discovered ammunition and eight firearms in defendant’s bedroom. Supreme Court denied defendant’s motion to suppress, and a jury found defendant guilty of criminal possession of a weapon.

The Second Department affirmed. Writing for the unanimous panel, Justice Jeffrey Cohen concluded that because legal possession gave the landlord the right to remove the occupants, defendant’s “subjective expectation of privacy…was not objectively reasonable.” The fact that defendant’s belongings remained in the premises did not give him an objective expectation of privacy, where defendant did not have any relationship of trust with the landlord or formal agreement to safeguard his belongings.

Matrimonial Actions. DRL §236(B)(2)(b) and 22 NYCRR §202.16-a (the “automatic orders”) prohibit a party in a matrimonial action from disposing of a matrimonial asset without the other party’s consent or court approval. In Spencer v. Spencer, 2018 N.Y. Slip Op. 01348 (2d Dept. Feb. 28, 2018), the Second Department held that a party who violates the automatic orders may be subject to civil contempt under Judiciary Law §753, but not after a judgment of divorce has been entered.

Following entry of a judgment of divorce, plaintiff learned that her former husband unilaterally had sold a warehouse in Brooklyn while the action was pending in violation of the automatic orders. Upon plaintiff’s motion for a civil contempt finding, Supreme Court directed that the former husband be incarcerated every weekend for six months unless he paid half the proceeds of the sale to plaintiff.

In a unanimous opinion authored by Justice Colleen Duffy, the court reversed. Although the automatic orders are “unequivocal mandates of the court” such that violators may be subject to civil contempt, the court further held that civil contempt is not available after a judgment of divorce has been entered. The automatic orders are intended to preserve the status quo, and “[u]pon entry of a judgment of divorce, the purpose of the automatic orders ends, and, when the life of the automatic orders thus expires, the statutory remedies for their enforcement fall at the same time.”

Third Department

Family Court Act. In Matter of Christopher YY, 2018 N.Y. Slip Op. 00495 (3d Dept. Jan. 25, 2018), the Third Department joined the First Department (Matter of Maria-Irene D., 2017 N.Y. Slip Op. 06716 (1st Dept. Sept. 28, 2017)) (and foreshadowed a decision by the Second Department (Matter of Joseph O., 2018 N.Y. Slip Op. 01192 (2d Dept. Feb. 21, 2018))) in holding that a presumption of legitimacy applies to children of same-sex couples.

Respondent mother and her wife were married prior to the birth of a child conceived through an informal artificial insemination process. Although the sperm donor had agreed to waive any claims to paternity, custody and visitation, after the birth he filed a paternity petition and sought custody of the child. The mother moved to dismiss the petition based on the presumption of legitimacy accorded to a child born of a marriage. Family Court denied the motion and ordered genetic testing.

Writing for the unanimous panel, Justice Robert Mulvey reversed and held that the presumption of legitimacy applied. The court noted that existing case law addressing when that presumption may be rebutted (such as by establishing that different-gender married couples were geographically separated around the time of conception) is “inherently problematic” when applied to same-gender married couples. For same-gender couples, the presumption of legitimacy cannot be “defeated solely with proof of the biological fact that, at present, a child cannot be the product of same-gender parents.” The court called for a refashioning of the presumption to afford equal protection to children of same-gender married couples.

Fourth Department

Negligence. Where an employee user of a hazardous product asserts a negligence claim against the manufacturer for failure to warn, may the manufacture assert as a defense that the plaintiff’s employer was a sophisticated user of the product and thus in a better position to warn the employee? In the reprise of Rickicki v. Borden Chemical, 2018 N.Y. Slip Op. 01829 (4th Dept. March 16, 2018), the Fourth Department concluded that the “sophisticated user” doctrine is not a complete defense to liability.

Injured workers sued silica manufacturers for failing to warn of the dangers of silica dust inhalation. Defendants moved for summary judgment on the grounds that plaintiffs’ employer was a “sophisticated user” and fully aware of the dangers. Supreme Court granted defendants’ motion, but on appeal the Fourth Department reversed. Rickicki v. Borden Chem., 60 A.D.3d 1276 (4th Dept. 2009). The court assumed arguendo that the “sophisticated user” theory was viable but concluded that a factual question remained as to the employer’s knowledge about the particular type of silica at issue. On remand, Supreme Court found the employer to be knowledgeable as a matter of law, and plaintiffs again appealed.

The panel majority declined to recognize the sophisticated intermediary doctrine on the facts of the case and reversed. The majority held that “it is not a complete defense…that an injured worker’s employer was adequately warned or…in the best position to give the warning.” Rather, an employer’s knowledge is merely relevant to determine “whether the manufacturer satisfied its duty to provide adequate warnings, which is typically a question of fact.”