E. Leo Milonas and Andrew C. Smith

During his confirmation hearing, U.S. Supreme Court Justice John Roberts said that judges are like umpires and that his job was “to call balls and strikes.” Reading recent opinions of the Appellate Divisions, and watching Luis Severino paint the corners with his fastball, reminds us that this is no simple task. Below are some of the home runs hit by the Appellate Divisions during the second quarter of 2018.

First Department

• Insurance Law. Must risk retention groups (RRGs) domiciled outside New York comply with Insurance Law §3420(d)(2), requiring timely notice of a disclaimer of coverage? Addressing this issue of first impression in Nadkos v. Preferred Contractors Insurance Co. Risk Retention Group, 2018 N.Y. Slip Op. 03242 (1st Dep’t May 3, 2018), the First Department answered in the negative, holding that federal law preempts the Insurance Law requirement.

Nadkos arose out of a personal injury action by a New York construction worker. The subcontractor had obtained liability insurance from a Montana RRG. The general contractor’s insurer tendered the underlying lawsuit to the RRG, which disclaimed coverage. The general contractor then sued the RRG for failing to provide a timely disclaimer of coverage under the Insurance Law §3420(d)(2). Supreme Court granted summary judgment for the RRG on the grounds that the Insurance Law was preempted by federal law governing non-domiciliary RRGs.

In a unanimous decision authored by Justice Anil C. Singh, the First Department affirmed. Although federal law permits states to require foreign RRGs to comply with a state’s unfair claim settlement practices, and Insurance Law §2601(6) considers “failing to promptly disclose coverage pursuant to [Insurance Law §3420(d)]” to be an unfair practice, the court held that this provision did not apply to a disclaimer of coverage. Insurance Law §2601(6)’s use of “disclose coverage” was referring to the coverage disclosure requirement under Insurance Law §3420(d)(1), the court explained, not the requirement to timely disclaim coverage under subsection (2).

• Rent Control. In an effort to limit the expansion of buildings subject to rent control or stabilization, New York’s Urstadt Law prohibits local governments, such as New York City, from expanding the number of housing units subject to “more stringent or restrictive provisions of regulation and control than those presently in effect.” In 2014 and 2015, New York City promulgated the Living in Communities (LINC) Program, providing low-income tenants with rent supplements or vouchers and requiring landlords to agree to limit rent increases. In Alston v. Starrett City, 2018 N.Y. Slip Op. 02420 (1st Dep’t April 5, 2018), the First Department held that the LINC Program violates the Urstadt Law.

Plaintiffs sought to use LINC vouchers at a Brooklyn housing complex owned by defendant. Defendant declined to accept the vouchers and provide housing. Defendant moved to dismiss plaintiffs’ ensuing lawsuit, but Supreme Court denied the motion.

In a unanimous opinion authored by Justice John W. Sweeny, Jr., the First Department reversed. The court noted that under the Urstadt Law, “it is the effect of the local law, not its wording, that determines whether such law expands control over housing units.” Here, the court determined that the LINC Program impermissibly mandates lease riders “that compel a landlord to renew a lease for up to five years at a minimum increase specifically tied to other City rent regulatory programs to which the housing unit is not presently subject.”

Second Department

• Sex Offender Registration Act. Are sex offenders entitled to appeal “as of right” from an order denying a downward modification of their risk classification under the Sex Offender Registry Act (SORA), Correction Law §168-o(2)? In a case of first impression, the Second Department held in People v. Charles, 2018 N.Y. Slip Op. 03864 (2d Dep’t May 30, 2018), that they are.

A level three sex offender sought a modification of his risk level because he was 71 years old, in poor health and had not committed any crimes for 12 years, and thus had a lower risk of recidivism. Supreme Court denied defendant’s petition based upon the Board of Examiners of Sex Offenders’s recommendation and defendant’s inability to complete any treatment programs during his incarceration. Defendant appealed, and the People argued that he had no appeal as of right.

The unanimous opinion authored by Justice Reinaldo E. Rivera held that an appeal as of right was warranted given the “profound” impact that SORA’s registration and community notification requirements have on a defendant’s liberty. Nevertheless, the court upheld Supreme Court’s denial, finding that defendant failed to establish that a modification of his existing risk level was warranted.

• Negligence. Does the primary assumption of risk doctrine, under which a voluntary participant in a sport “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation,” apply when an injury is caused by disrepair to the playing surface? In Philius v. City of New York, 2018 N.Y. Slip Op. 03161 (2d Dep’t May 2, 2018), the Second Department relied on its precedent in holding that it did, but two of the panel’s four justices urged that the precedent be overturned.

Plaintiff alleged he was injured playing basketball when he tripped on a crack in the outdoor court’s surface. Supreme Court denied defendant New York City Housing Authority’s motion for summary judgment based on the doctrine of primary assumption of risk.

The Second Department reversed. An opinion in which Justices Rivera and Sheri S. Roman concurred, explained that the court has consistently applied the doctrine “in cases involving similar known or open and obvious conditions in the playing surfaces of various types of courts.” In a separate opinion, Justice Francesca E. Connolly, joined by Justice Leonard B. Austin, concurred in the result “only under constraint of this Court’s precedent.” They argued that the precedent should be overturned because the Court of Appeals has only applied the doctrine to irregularities in playing surfaces that “existed as they were designed.” The doctrine “was never intended to allow a landowner to permit a recreational facility to fall into a neglectful state of disrepair.” We will be watching to see if there is a rematch before the Court of Appeals.

Third Department

• Sex Offender Registration Act. Does SORA’s requirement that a sex offender register “internet accounts with internet access providers … [and] internet identifiers that such offender uses” (Correction Law §168-f(4)) include Facebook accounts?  In People v. Ellis, 2018 N.Y. Slip Op. 03873 (3d Dep’t May 31, 2018), the Third Department concluded it did not.

Defendant, a convicted sex offender, was charged with failing to register his Facebook account.  He moved to dismiss the indictment on the grounds that he was not required under SORA to do so. County Court denied the motion, and defendant pleaded guilty while reserving his right to appeal.

In a unanimous opinion authored by Justice Stan L. Pritzker, the Third Department reversed. Because Facebook was neither an internet service provider nor email address, the decision turned on whether it was an “internet identifier,” meaning a “designation used for purposes of chat, instant messaging, social networking or other similar internet communication.” Finding the provision ambiguous, the court noted the law’s main purpose was to permit “social networking websites to access the [I]nternet identifiers of convicted sexual predators in order to prescreen or remove them from services used by children.” The court thus interpreted the statute narrowly to mean only “how someone identifies himself or herself when accessing a social networking account,” such as a screen name or user name, and not the account itself.

Fourth Department

• Sentencing. May a court sentence a defendant convicted of a felony controlled substance or marijuana offense as a persistent felony offender? Addressing this issue of first impression in People v. Boykins, 2018 N.Y. Slip Op. 02919 (4th Dep’t Apr. 27, 2018), the Fourth Department answered “no,” concluding that the 2004 and 2009 Drug Law Reform Acts removed a court’s discretion to do so.

Defendant was convicted of one count each of criminal possession and criminal sale of a controlled substance in the third degree, and sentenced as a persistent felony offender to concurrent, indeterminate terms of incarceration of 15 years to life. Defendant moved to vacate the conviction on the grounds that he was illegally sentenced as a persistent felony offender, which County Court denied.

In a unanimous opinion authored by Justice Brian F. DeJoseph, the Fourth Department reversed. The court explained that Penal Law §60.04 provides that “[n]otwithstanding the provisions of any law” a court “must sentence” a second felony drug offender in accordance with Penal Law §70.70, which provides that “the court shall impose a determinate sentence of imprisonment … [which] shall be at least two years and shall not exceed twelve years.”  Consistent with the Drug Law Reform Act’s intention to “ameliorate the excessive punishments meted out to low-level, nonviolent drug offenders,” the court interpreted the statute to preclude sentencing a qualifying drug offender as a persistent felony offender.


E. Leo Milonas is a litigation partner at Pillsbury Winthrop Shaw Pittman. He is a former Associate Justice of the Appellate Division, First Department, and the former Chief Administrative Judge of the State of New York. Andrew C. Smith is also a litigation partner at the firm. Senior associates Jay D. Dealy and Joshua I. Schlenger, associate Brian L. Beckerman, and summer law clerk Alexandra Stephanos assisted in the preparation of this column.