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Default Judgment against Mother for Failure to Appear Reversed

In vacating a default judgment entered against the mother who failed to appear in a custody and visitation proceeding, the Third Department noted that, in her motion to vacate, the mother offered a reasonable excuse for not appearing (car broke down), and the best interests of the child would be served by a plenary hearing:

“We must remain vigilant that the ultimate issue here is what is in [the children’s] best interest[s], not whether [the mother] should be punished for her actions”….  Here, the lack of a full hearing to determine the best interests of the children, a determination in which Family Court “is bound to assess numerous  factors,” constitutes a meritorious defense …. Accordingly, the default judgment entered against the mother must be vacated, and the matter remitted for further proceedings… .  Matter of Brown v Eley, 514981, 3rd Dept 6-27-13

 

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THE HISTORY OF THE INTERACTION BETWEEN INFANT PLAINTIFF AND ANOTHER STUDENT RAISED A QUESTION OF FACT ABOUT WHETHER THE ATTACK ON INFANT PLAINTIFF WAS FORESEEABLE FROM THE SCHOOL’S PERSPECTIVE (THIRD DEPT).
AFTER THE INITIAL INVESTIGATION AT THE SCENE AND AFTER DEFENDANT WAS HANDCUFFED AND SEATED IN THE BACK OF THE POLICE CAR, THE OFFICER ASKED DEFENDANT “WHAT HAPPENED?”; DEFENDANT’S RESPONSE SHOULD HAVE BEEN SUPPRESSED; CONVICTION REVERSED (THIRD DEPT).
THE APPEAL WAS MOOT BECAUSE THE PETITION SOUGHT TO HALT THE CONSTRUCTION OF A MINING SHAFT APPROVED BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) AND THE SHAFT HAD BEEN COMPLETED AT THE TIME OF THE APPEAL (THIRD DEPT).
DEPARTMENT OF CORRECTIONAL SERVICES (DOCS) PERSONNEL WERE NOT ACTING AS AGENTS FOR THE POLICE WHEN INVESTIGATING THE PRISON KILLING WITH WHICH DEFENDANT WAS CHARGED, THEREFORE THE PROSECUTOR WAS NOT OBLIGATED TO LEARN ABOUT AND TURN OVER TO THE DEFENSE ANY ALLEGED EXCULPATORY EVIDENCE TURNED UP IN THE DOCS INVESTIGATION (THIRD DEPT).
HERE THERE WAS NO INDICATION THE WAIVER OF INDICTMENT WAS SIGNED IN OPEN COURT, A JURISDICTIONAL DEFECT (THIRD DEPT). ​
NEGLIGENCE AND TRESPASS ACTIONS AGAINST THE TOWN BASED UPON A LANDSLIDE WHICH CAUSED FLOODING OF PLAINTIFF’S LAND SHOULD HAVE BEEN DISMISSED (THIRD DEPT).
WORKERS’ COMPENSATION CARRIER ENTITLED TO REIMBURSEMENT OF BOTH TEMPORARY TOTAL DISABILITY PAYMENTS AND TEMPORARY PARTIAL DISABILITY PAYMENTS (THIRD DEPT).
ACCEPTING A VERDICT BEFORE REQUESTED TESTIMONY WAS READ BACK TO THE JURY WAS NOT A MODE OF PROCEEDINGS ERROR AND WAS NOT PRESERVED FOR REVIEW.

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