Just in time for Halloween, we have perused the Appellate Division's recent decisions to bring you some of the treats from the third quarter of 2017; indeed we have found all treats and no tricks.

First Department

Employment Discrimination. An employee considered “too cute” by her employer stated a claim for gender discrimination under the New York state and New York City Human Rights Laws, the First Department held in Edwards v. Nicolai. 2017 N.Y. Slip Op. 06235 (1st Dep't Aug. 22, 2017).

Plaintiff was employed as a yoga and massage therapist at a chiropractic practice owned by a husband and wife team. Plaintiff alleged that, while the relationship between her and the chiropractor husband had been strictly professional, the husband eventually warned plaintiff that she was “too cute” and that his wife was getting jealous. Four months later, plaintiff was fired via text messages (including a warning from the wife, “DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!!”). Plaintiff sued, and Supreme Court granted defendants' motion to dismiss the gender discrimination claims for failure to state a cause of action.

In an unsigned opinion, the First Department reversed. The court noted that “[i]t is well established that adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination.” It did not matter that no sexual attraction was alleged—indeed, plaintiff positively alleged there was no unprofessional behavior. Rather, it was sufficient that plaintiff was terminated because of the wife's belief that her husband was sexually attracted to plaintiff and the husband wanted to appease his wife's unjustified jealousy.

Family Court. Addressing an apparent issue of first impression, the First Department in Matter of Leenasia C. (Lamarriea C.), 2017 N.Y. Slip Op. 06050 (1st Dep't Aug. 8, 2017), held that the Family Court Act authorizes the Family Court to “retroactively” grant a suspended judgment in order to vacate a finding of neglect.

Petitioner Administration for Children Services commenced a neglect proceeding against a mother, who consented to a neglect finding. Family Court subsequently entered a dispositional order releasing the children to the mother for 12 months, under petitioner's supervision. After the mother complied with the terms of the order, Family Court granted the mother a retroactive suspended judgment, expiring the same day, and vacated the neglect finding.

In a unanimous opinion by Justice Dianne T. Renwick, the First Department affirmed. The Family Court Act § 1061, which applies to both fact-finding and dispositional orders, authorizes the court to modify or vacate “any order issued in the course of a proceeding under this article” “for good cause shown.” The court rejected petitioner's argument that complying with a dispositional order was not good cause for vacating a neglect finding. Vacating the neglect finding was in the children's best interest, the court explained, because it would provide the mother with access to more employment opportunities.

Second Department

Criminal Procedure. Justice may be blind but not anonymous, the Second Department held in People v. Flores, 2017 N.Y. Slip Op. (2d Dep't July 5, 2017). For the first time in New York state, an appellate court held that a trial court may not withhold prospective juror names in criminal actions.

Defendants were charged with gang assault and other crimes. In response to concerns—expressed by jurors in prior violent felony cases—about being publicly identified, the County Court decided to withhold the names of jurors, identifying them only by numbers. The anonymous jury returned guilty verdicts, and defendants appealed their conviction.

Writing for the majority, Justice John M. Leventhal agreed with defendants that the anonymous jury violated CPL § 270.15, reversed the conviction, and ordered a new trial. The statute requires a court to “direct that the names of not less than twelve members of the panel be drawn and called” and permits the court to issue a protective order “regulating disclosure of the business or residential address of any prospective or sworn juror … other than to counsel for either party.” These provisions read together, the majority concluded, prohibit a trial court from withholding prospective juror names. Moreover, by preventing counsel from investigating prospective jurors for possible bias and conveying the impression that the defendants were dangerous, empaneling an anonymous jury deprived defendants of a fair trial.

Real Property. In another case of first impression, the Second Department held in Hahn v. Hager, 2017 N.Y. Slip Op. 05710 (2d Dep't July 19, 2017), that a court can direct the sale of development rights under RPAPL § 1602.

Discord came to Pleasant Valley when siblings disagreed over the future of a farm that had been in the family for over 240 years. The plaintiffs' side of the family wished to sell development rights in order to preserve the property as farmland. When defendant refused to agree, plaintiffs sought an order under RPAPL § 1602, which permits a court to direct that “real property, or a part thereof, be mortgaged, leased or sold” where “expedient.” Supreme Court determined that development rights do not constitute real property, or a part thereof, for purposes of RPAPL § 1602 and dismissed the case.

Writing for the unanimous panel, Justice Francesca E. Connolly held that development rights are real property, or a part thereof, within the statute's meaning. “[P]laintiffs are seeking to convey those portions of the bundle of rights comprising the maximum development capacity of the property,” the court explained, and RPAPL § 1602 does not place “any limitations on which 'parts' of the bundle of rights comprising real property are subject to the statute.” Nevertheless, the court affirmed dismissal because plaintiffs failed to establish that the sale was “expedient.”

Third Department

Mental Hygiene Law. An attorney qua attorney is not “concerned with the welfare” of his or her client such that the attorney is entitled to attend in-patient mental health treatment planning meetings, the Third Department concluded in Mental Hygiene Legal Service v. Sullivan, 2017 N.Y. Slip Op. 05656 (3d Dep't July 13, 2017).

Having been adjudicated a dangerous sex offender, petitioner was committed to a psychiatric facility where the Commissioner of Mental Health was required to develop and implement a treatment plan. Petitioner's request that his counsel (assigned through the Mental Hygiene Legal Service) be permitted to accompany him to his treatment planning meetings was denied. Petitioner challenged the denial as legally erroneous and arbitrary and capricious in an Article 78 proceeding. Supreme Court disagreed and dismissed the petition.]

In a majority opinion authored by Justice Eugene P. Devine, the Third Department affirmed. Mental Hygiene Law § 29.13 provides that certain individuals may participate in the creation of a treatment plan, including (1) “authorized representatives of the patient” or (2) a “significant individual,” defined as “any relative, close friend or individual otherwise concerned with the welfare of the patient.” The majority explained that by “authorized representative,” the statute means an individual authorized to make health care decisions for the patient. Similarly, a “significant individual” is “someone interested in the patient's welfare and knowledgeable about his or her personal situation.” The majority concluded that petitioner's attorney was neither. The Mental Hygiene Legal Service's mission was to provide legal assistance, “and legal advocacy may easily conflict with crafting an appropriate treatment plan if the medically advisable treatment conflicts with the client's legal goals.” While attorneys may develop personal relationships with their clients such that they qualify as “significant individuals,” representing a client by itself does not satisfy the statute.

Fourth Department

Personal Injury. What sort of a terrain would prove unsuitable for recreational use of an “all-terrain” vehicle? A mountain top, you might say? A river? Actually, a gravel driveway, the Fourth Department concluded in Cummings v. Manville, 2017 N.Y. Slip Op. 05530 (4th Dep't July 7, 2017).

Plaintiff brought along his ATV on a visit to a friend's home. In order to access his friend's back yard, plaintiff decided to use a gravel road on neighboring property. Alas, plaintiff was thrown from the ATV when it struck a pothole, and plaintiff brought a negligence action against the neighbor. Supreme Court granted the neighbor's motion to dismiss on the ground that he was immune from liability under General Obligations Law §9-103, known as the “recreational use statute.” That statute provides that “an owner, lessee or occupant of premises … owes no duty to keep the premises safe for entry or use by others for … motorized vehicle operation for recreational purposes.”

In a majority opinion authored by Justice John M. Curran, the Fourth Department reversed. “The central issue in this case,” the majority explained, “is whether defendant established that the road is suitable for the recreational use of ATV riding.” The majority thus considered whether the portion of the land on which the plaintiff was injured was suitable for that particular recreational activity. Past use of property for a particular activity is a substantial indicator of the property's suitability, the majority explained, and plaintiff denied that the road had been used by recreational vehicles previously. Moreover, because the road served as a driveway for three homes, its physical characteristics were residential, not recreational. The road “is not the type of property that the Legislature intended to cover,” the majority concluded, and a finding of statutory immunity “would lead to its application to potentially any road in a rural area.”

E. Leo Milonas, a litigation partner at Pillsbury Winthrop Shaw Pittman, 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 a partner with the firm. Pillsbury senior associates Jay D. Dealy and Joshua I. Schlenger and associate Brian L. Beckerman assisted in the preparation of this column.