The new year marks the 200th anniversary of McCulloch v. Maryland, a landmark decision on the supremacy of federal law. Courts are still grappling with federal-state relations, as reflected in the recent Second Department decision in People ex rel. Wells v. DeMarco, holding that state and local law enforcement officers lack authority under New York law to effect arrests for violations of federal civil immigration violations. Below we report on DeMarco and other recent decisions from the Appellate Divisions.

First Department

Personal Jurisdiction. Does the state in which an automobile accident occurs have personal jurisdiction over the insurer where the policy expressly covers any accident within the United States? Addressing this issue of first impression, the First Department in Repwest Insurance Co. v. Country-Wide Insurance Co., 166 A.D.3d 61 (1st Dept. 2018), answered in the negative.

A New York resident rented a U-Haul in New York and later rear-ended a vehicle in North Carolina. U-Haul's insurance, provided by Repwest, was secondary to the renter's insurance. The renter's policy, issued by Countrywide, insured against loss from any accident “within the state of New York, or elsewhere in the United States in North America.” After Repwest settled with the occupants of the other vehicle, it obtained a default judgment against Countrywide in North Carolina, which it sought to domesticate in New York. Supreme Court granted summary judgment for Repwest.

In an opinion by Justice Anil C. Singh, the First Department reversed. Recognizing a nationwide split on this issue, the court held that the mere facts that the accident occurred in North Carolina and that the policy covered the entire United States were insufficient to establish “minimum contacts” with North Carolina. “There is a qualitative distinction between contracting to cover an insured under a territory of coverage clause and the insurer of the policy being amenable to being haled into court anywhere in the United States in a dispute with another insurer. Countrywide cannot reasonably foresee being haled into court in a state where it did not purposefully direct its activities.”

Physician-Patient Privilege. In Brito v. Gomez, 2018 N.Y. Slip Op. 08105 (1st Dept. Nov. 27, 2018), the First Department disagreed with the Second Department and reaffirmed that a personal injury plaintiff claiming lost earnings and loss of enjoyment of life does not waive the physician-patient privilege with respect to prior injuries not raised in the lawsuit.

Plaintiff sued to recover for injuries suffered in a car accident, although none of the injuries involved plaintiff's knees. Supreme Court denied defendants' application for discovery of privileged medical records relating to a prior knee surgery.

In a majority opinion by Justice Anil C. Singh, the First Department affirmed on the grounds that plaintiff had not placed her prior injury in controversy. The court rejected the approach adopted by the Second Department that “a party places his or her entire medical condition in controversy through broad allegations of physical injuries and claimed loss of enjoyment of life due to those injuries.” Rather, the court affirmed First Department precedent that discovery of medical records regarding past injuries should be granted only where the plaintiff has alleged an aggravation or exacerbation of prior injuries.

Second Department

Warrants. Are New York state and local law enforcement officers authorized under New York law to effect arrests for federal immigration law violations? In People ex rel. Wells v. DeMarco, 2018 N.Y. Slip Op. 07740 (2d Dept. Nov. 14, 2018), the Second Department answered in the negative.

When a citizen of India was arrested for misdemeanor traffic violations, it was determined he had been unlawfully residing on Long Island for two decades. U.S. and Immigration and Customs Enforcement (ICE) issued an arrest warrant, addressed to any immigration officer authorized under federal law, directing that the subject be taken into custody for removal proceedings. After being sentenced to time served for the traffic violations, the subject was returned to the Suffolk County correctional facility, placed in a cell rented by ICE, and his paperwork was “re-written” to reflect that he was in federal custody. A habeas corpus proceeding was commenced on his behalf.

In a unanimous opinion by Presiding Justice Alan D. Scheinkman, the Second Department concluded that New York law does not authorize state and local law enforcement to effect an ICE arrest warrant because it is an administrative, not criminal, warrant and is not issued by a judge. Nor does New York law authorize warrantless arrests for civil matters. Finally, the court declined to find authority for the arrest in the common law “police power,” because doing so would “intrude upon a carefully crafted, comprehensive, and balanced legislative determination as to the proper scope of the police power to effectuate arrests…for what are civil law violations.” Alas, this decision provided no relief to the subject, who had been promptly transferred to an ICE facility in New Jersey.

Immigration. Congress created “special immigrant juvenile status” to provide an expedited immigration process to undocumented and unaccompanied children declared dependent on a juvenile court. Is a juvenile eligible for such status who is in the custody of the Commissioner of Social Services as a result of having been adjudicated as a juvenile delinquent? In Matter of Keanu S., 2018 N.Y. Slip Op. 06918 (2d Dept. Oct. 17, 2018), the Second Department answered, “no.”

After being charged with assault and robbery, appellant was placed in the custody of the Commissioner of Social Services of the City of New York. Stating that he moved to New York from Jamaica after his mother left their home and his father was murdered, appellant sought an order finding him “dependent” on the Family Court for purposes of obtaining special immigrant juvenile status. Family Court denied the motion.

In a majority opinion by Justice Ronaldo E. Rivera, the Second Department affirmed, holding that appellant was not an intended beneficiary of the statutory provision. The majority explained that special immigrant juvenile status was designed “to protect abused, neglected, and abandoned immigrant children,” not juvenile delinquents. “We cannot fathom that Congress envisioned …that a child could satisfy [the dependency requirement] by committing acts which, if committed by adults, would constitute crimes.”

Third Department

Family Court Act. An exception to the hearsay rule that permits the use of out-of-court statements in a child protective proceeding under Family Court Act Articles 10 and 10-a does not apply in a family offense proceeding under Article 8, the Third Department held in Matter of Kristie GG., 2018 N.Y. Slip Op. 08718 (3d Dept. Dec. 20, 2018).

The mother alleged the father committed a family offense by grabbing their middle child during an argument. On consent, Family Court granted a motion precluding the children from testifying. However, Family Court permitted two detectives and the mother to testify as to the children's out-of-court statements about the incident, and admitted into evidence recordings of the children's police interviews. After finding that the father committed the family offense of harassment, Family Court entered a two-year order of protection.

In a unanimous opinion by Justice William E. McCarthy, the Third Department reversed. Family Court Act Articles 10 and 10-a, which govern child protective proceeding, permit the use of a “previous statement made by the child relating to any allegations of abuse or neglect.” While this exception to the hearsay rule makes sense in a child protective proceeding, which is intended “to protect vulnerable children,” the court declined to extend the hearsay exception to family offense proceedings under Article 8, which “essentially provides a civil forum to address criminal conduct.”

Fourth Department

Eminent Domain. May a corporation acquire easements over private land by eminent domain where New York State has blocked the public project by denying a necessary permit? The Fourth Department answered this “novel question of condemnation law” “firmly in the negative” in National Fuel Gas Supply Corp. v. Schueckler, 2018 N.Y. Slip Op. 07550 (4th Dept. Nov. 9, 2018).

The Federal Energy Regulatory Commission (FERC) granted petitioner's application for a certificate of public convenience and necessity authorizing the construction of an interstate gas pipeline. Petitioner then sought easements based on an exemption from the hearing requirements in the Eminent Domain Procedure Law (EDPL) where a federal agency has certified the project's public purpose. While the petition was pending, New York denied petitioner's application for a water quality certification required for the FERC certificate. Nevertheless, Supreme Court granted the petition and authorized the acquisition of the easements.

In a majority opinion by Justice Patrick H. NeMoyer, the Fourth Department reversed. Because New York declined to issue the water quality certification, petitioner no longer had a valid and operative FERC certificate for purposes of an EDPL hearing exemption. As a result, petitioner was required to follow the EDPL's normal procedures and demonstrate the project's public purpose. “Petitioner is trying to expropriate respondents' land in furtherance of a pipeline project that, as things currently stand, cannot legally be built,” the court explained. “Such an effort turns the entire concept of eminent domain on its head.”

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. Pillsbury senior associates Jay D. Dealy and Joshua I. Schlenger and associate Brian L. Beckerman assisted in the preparation of this column.