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THE JUDGE DID NOT MAKE THE REQUIRED INQUIRY RE: DEFENDANT’S WAIVER OF THE RIGHT TO COUNSEL IN THIS CUSTODY PROCEEDING BEFORE ALLOWING DEFENDANT TO PROCEED WITHOUT AN ATTORNEY; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new custody hearing, determined the judge did not make the required inquiry before allowing defendant to waiver her right to counsel:

The parent of any child seeking custody or contesting the substantial infringement of his or her right to custody of such child must be advised “before proceeding that he or she has the right to be represented by counsel of his or her own choosing, of the right to have an adjournment to confer with counsel, and of the right to have counsel assigned by the court in any case where he or she is financially unable to obtain the same” (Family Ct Act § 262[a][v]; see Judiciary Law § 35[8] …). A party may waive the right to counsel, provided he or she makes a knowing, voluntary, and intelligent waiver of that right … . Here, the Supreme Court failed to conduct the requisite inquiry before allowing the defendant to proceed pro se with regard to the hearing and determination of the defendant’s motions to modify and/or vacate the custody order … . Wondemagegehu v Edem, 2021 NY Slip Op 06213, Second Dept 11-10-21

 

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ONE OF THE THREE DEFENDANTS, THE OWNER OF THE OTHER TWO, WAS NOT SHOWN TO BE LIABLE UNDER THE LABOR LAW; THEREFORE THE $10,000,000 PUNITIVE-DAMAGES JUDGMENT AGAINST THE OWNER SHOULD NOT HAVE BEEN AWARDED; NEW YORK DOES NOT RECOGNIZE AN INDEPENDENT CAUSE OF ACTION FOR PUNITIVE DAMAGES (SECOND DEPT).
THE BANK DID NOT PRESENT EVIDENCE IN ADMISSIBLE FORM TO SUPPORT ITS CLAIM THAT DEFENDANT ACKNOWLEDGED THE MORTGAGE DEBT, STARTING THE STATUTE OF LIMITATIONS ANEW; DEFENDANT’S MOTION TO DISMISS THE FORECLOSURE ACTION AS UNTIMELY SHOULD HAVE BEEN GRANTED (SECOND DEPT).
ATTORNEYS FOR THE EXECUTOR OF THE ESTATE IN A REMOVAL PROCEEDING SHOULD NOT HAVE BEEN DISQUALIFIED BASED UPON THEIR PRIOR REPRESENTATION OF DECEDENT’S WIFE FOR HER ESTATE PLANNING (SECOND DEPT).
ATTORNEY LETTERS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WHICH WOULD SUPPORT A MOTION TO DISMISS (SECOND DEPT).
THE WRONG MAILING DATE IN AN AFFIDAVIT OF SERVICE CANNOT BE CORRECTED IN AN AMENDED AFFIDAVIT; MATTER REMITTED FOR A HEARING ON DEFENDANT’S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION (SECOND DEPT).
THE AMOUNT OF RESTITUTION IS PART OF THE SENTENCE AND MUST BE PRONOUNCED AT SENTENCING; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL AND SURVIVES A WAIVER OF APPEAL (SECOND DEPT).

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