Closing out the decade, below we highlight some of the Appellate Division's leading decisions from the fourth quarter of 2019. We are confident that in the next decade appellate litigation will not subside and that we will continue to rely on the Appellate Division to craft scholarly decisions that maintain the integrity of the law.

First Department

Sexual Assault. Are a plaintiff's claims that she was raped and sexually assaulted sufficient to allege gender-based animus supporting a claim under the Victims of Gender-Motivated Violence Protection Law (VGM), or must the plaintiff allege additional facts demonstrating some animus against women as a group? In Breest v. Haggis, 2019 N.Y. Slip Op. 09398 (1st Dept. Dec. 26, 2019), the First Department held that gender-based animus is sufficiently pleaded by the nature of the crimes of rape and sexual assault.

In 2000, the New York City Council enacted VGM, which provides a civil cause of action for victims of violent crimes "committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender." Plaintiff alleged that defendant, a prominent film and television producer and director, raped and sexually assaulted her and also (separately) sexually assaulted three other women. Supreme Court denied defendant's motion to dismiss and declined to strike the allegations about the other sexual assaults on the grounds they were evidence of gender-based animus.

The First Department unanimously affirmed the denial of the motion to dismiss. In an opinion joined by three of the four justices on the panel and written by Justice Peter H. Moulton, the court also reversed and granted the motion to strike the allegations relating to other victims as irrelevant. The majority rejected reliance upon case law interpreting the federal Violence Against Women Act, which required plaintiffs to make additional allegations of facts tending to show animus. Because rape and sexual assault are "an expression of the perpetrator's contempt for [the victim's bodily] autonomy," the majority concluded that animus based on gender under VGM "is apparent from the alleged commission of the act itself. Animus inheres where consent is absent."

Domestic Relations Law. Domestic Relations Law §237(b) permits a court to direct a parent to pay the counsel fees of the other parent, as justice requires, in connection with applications concerning custody, visitation or maintenance of a child. In Matter of Kelly G. v. Circe H., 2019 N.Y. Slip Op. 08961 (1st Dept. Dec. 17, 2019), the First Department concluded that a court may shift fees to a party before determining whether that party is a "parent" under the DRL.

Petitioner commenced a proceeding to establish her standing to assert parental rights in seeking visitation and custody under DRL §70. Before resolving the standing issue, Supreme Court granted respondent's motion under DRL §237(b) and directed petitioner to pay $200,000 of respondent's legal fees.

The First Department unanimously affirmed. Noting that DRL §237(b) does not define "parent," and that the Court of Appeals itself "has gone to great lengths to escape the inequitable results dictated by a needlessly narrow interpretation of the term 'parent,'" the court concluded that "highly inequitable results would flow in this case from permitting the party with far greater resources to seek custody as against the child's primary parent without allowing that parent to seek counsel fees."

Second Department

Medical Malpractice. If you find distinguishing ordinary negligence from medical malpractice to be draining, the Second Department provided a helpful explanation in Rabinovich v. Maimonides Med. Ctr., 2019 N.Y. Slip Op. 08724 (2d Dept. Dec. 4, 2019).

Plaintiff commenced a negligence action against a blood donation center for injuries she sustained after losing consciousness and falling after giving blood. Defendant moved to dismiss because plaintiff failed to file a certificate of merit, required by C.P.L.R. §3012-a for medical malpractice claims, declaring that her attorney consulted a medical professional and believes the action has a reasonable basis. Supreme Court denied defendant's motion on the grounds that plaintiff's action sounded in ordinary negligence, not medical malpractice.

The Second Department disagreed in a unanimous opinion by Justice Mark C. Dillon. The court explained that an action sounds in ordinary negligence when jurors can "utilize their common everyday experiences to determine the allegations of lack of due care," whereas an action sounds in medical malpractice "where the determination involves a consideration of professional skill and judgment." Actions against phlebotomists for negligence while drawing blood sound in medical malpractice, the court concluded, because drawing blood "bears a substantial relationship to the rendition of medical treatment." The court further held that the proper remedy for plaintiff's failure to file a certificate of merit was to grant her 60 days to do so, rather than dismissal of the complaint, so plaintiff's suit was not in "vein."

Sex Offender Registration Act (SORA). Are all sexually motivated felonies considered "sex offenses" requiring registration under SORA? In People v. Buyund, 2019 N.Y. Slip Op. 08207 (2d Dept. Nov. 13, 2019), the Second Department concluded they are not.

Defendant pleaded guilty to burglary in the first degree as a sexually motivated felony after breaking into an apartment and attempting to rape the homeowner. Supreme Court sentenced him to 11 years' imprisonment and certified him a sex offender under SORA. Defendant appealed, arguing that Supreme Court erred in certifying him a sex offender because burglary in the first degree as a sexually motivated felony is not a registerable sex offense.

In a unanimous opinion by Justice Hector D. LaSalle, the Second Department reversed. The court rejected the People's argument that sexually motivated felonies are their own category of registrable sex offenses. Rather, sub-section (iii) of the definition of "sex offense" in Correction Law §168-a(2)(a) includes convictions "as a sexually motivated felony," but only for convictions for violations of the specific statutory provisions "of the foregoing sections." Sub-sections (i) and (ii), in turn, do not include burglary. "While it may have been the intent of the Legislature to require those individuals convicted of all [sexually motivated felonies] to register under SORA," the court explained, "the language of Correction Law §168-a(2)(a) as amended did not effectuate that intent."

Third Department

Criminal Procedure. N.Y. Constitution Art. I, §6 permits a defendant "held for the action of a grand jury upon a charge" for a felony offense to waive the right to indictment by grand jury and be prosecuted by a Superior Court Information (SCI). Criminal Procedure Law §195 further provides that an SCI may include "any offenses properly joinable" with an offense for which a defendant was "held for the action of a grand jury." In People v. Coss, 2019 N.Y. Slip Op. 07445 (3d Dept. Oct. 17, 2019), the Third Department concluded that a waiver of indictment and SCI may not include a joinable offense unless that offense, or a lesser included offense, was charged in a felony complaint.

Defendant was charged by felony complaint with two class E felonies. He waived indictment and consented to be prosecuted by an SCI charging him with one of the originally charged class E felonies and a class D felony of driving while intoxicated after being twice convicted of that offense in the last 10 years. After his guilty plea and sentencing, Defendant appealed on the grounds that the SCI was jurisdictionally defective.

In an opinion by Presiding Justice Elizabeth A. Garry, the Third Department agreed, reversing the judgment of conviction and dismissing the SCI. The court explained that the constitutional provision, which makes no mention of joinable offenses, strikes a balance between judicial efficiency and the right to prosecution by indictment. That balance, and the protections provided by the N.Y. Constitution, would be undermined if an offense in a higher grade or degree than that charged in the felony complaint could be included in a waiver of indictment and SCI.

Fourth Department

Attorney-Client Privilege. May an executor waive the decedent's attorney-client privilege, including where the communication is being disclosed for the benefit of the executor rather than the estate? Yes, the Fourth Department concluded in Borrelli v. Thomas, 2019 N.Y. Slip Op. 08293 (4th Dept. Nov. 15, 2019).

Respondent, named executor under his parents' wills, excluded shares of his father's company from his parents' estates on the grounds that he bought the shares before his father died. During a non-jury trial in Surrogate's Court, respondent waived his parents' attorney-client privilege to permit their former attorney to testify that she did not include a specific bequest of the shares because they had already been transferred to respondent. The Surrogate ruled in respondent's favor with respect to ownership of the shares, and his siblings appealed.

In a unanimous opinion by Justice Brian F. DeJoseph, the Fourth Department affirmed. The court agreed with the Second Department that it would be inconsistent for an executor to "exercise authority over all the interests of the estate" but lack authority to waive the attorney-client privilege.

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