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PROPERTY OWNER DID NOT DEMONSTRATE LEAVES ON A STAIRWAY CONSTITUTED AN OPEN AND OBVIOUS CONDITION AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE CONDITION, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined defendant property owner did not demonstrate leaves on a basement stairway constituted an open and obvious condition and did not demonstrative a lack of constructive notice of the condition in this slip and fall case. Defendant’s motion for summary judgment was properly denied:

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A defendant property owner has a duty to maintain its premises in a “reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” … . However, it does not have a duty to protect against an open and obvious condition, which, as a matter of law, is not inherently dangerous … . Whether a dangerous or defective condition exists on the property so as to give rise to liability depends on the particular circumstances of each case and is generally a question of fact for the jury … . Similarly, whether a condition is open and obvious depends on the circumstances of the case, and something that ordinarily would be readily observable may be obscured by inadequate illumination … .

Here, the defendant failed to eliminate triable issues of fact as to whether the condition that allegedly caused the plaintiff to fall was open and obvious and not inherently dangerous … . The plaintiff testified at her deposition that she fell on a two-inch thick pile of wet, matted down leaves on the seventh step of a staircase, consisting of 20 steps leading to a basement. The plaintiff further testified that the sky was overcast, that a light at the bottom of the staircase was not functioning, and that she could only see as far as the fifth step.

The defendant also failed to establish, prima facie, that it did not have constructive notice of the alleged hazardous condition … . The plaintiff testified that she fell into a pile of leaves and other debris one-foot deep at the bottom of the staircase. [the building manager] testified that he could not remember whether he had checked the subject staircase on his last weekly inspection prior to the accident and that he did not know whether the landscaper or anyone else was responsible for removing leaves from the staircase. Thus, the defendant failed to establish, prima facie, that the subject condition had not been there for a sufficient period of time for the defendant to have discovered and remedied it … . Bissett v 30 Merrick Plaza, LLC, 2017 NY Slip Op 08805, Second Dept 12-20-17

 

NEGLIGENCE (SLIP AND FALL, PROPERTY OWNER DID NOT DEMONSTRATE LEAVES ON A STAIRWAY CONSTITUTED AN OPEN AND OBVIOUS CONDITION AND DID DEMONSTRATE A LACK OF NOTICE OF THE CONDITION, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/SLIP AND FALL (PROPERTY OWNER DID NOT DEMONSTRATE LEAVES ON A STAIRWAY CONSTITUTED AN OPEN AND OBVIOUS CONDITION AND DID DEMONSTRATE A LACK OF NOTICE OF THE CONDITION, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/OPEN AND OBVIOUS (NEGLIGENCE, SLIP AND FALL,  PROPERTY OWNER DID NOT DEMONSTRATE LEAVES ON A STAIRWAY CONSTITUTED AN OPEN AND OBVIOUS CONDITION AND DID DEMONSTRATE A LACK OF NOTICE OF THE CONDITION, SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

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SEALED LOCAL GOVERNMENT RECORDS PROPERLY UNSEALED FOR CONSIDERATION IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING (SECOND DEPT).

The Second Department determined sealed records were properly unsealed in this sex offender civil commitment hearing:

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The Supreme Court properly granted the State’s motion to unseal the records kept by the Office of the Suffolk County District Attorney and the Suffolk County Police Department regarding the defendant’s 2001 arrest for rape in the first degree. Mental Hygiene Law § 10.08(c) provides, “Notwithstanding any other provision of law, the commissioner, the case review panel and the attorney general shall be entitled to request from any agency, office, department or other entity of the state, and such entity shall be authorized to provide upon request, any and all records and reports relating to the respondent’s commission or alleged commission of a sex offense, the institutional adjustment and any treatment received by such respondent, and any medical, clinical or other information relevant to a determination of whether the respondent is a sex offender requiring civil management.” “The primary goal of the court in interpreting a statute is to determine and implement the Legislature’s intent”… . Given the legislative purpose underlying Mental Hygiene Law § 10.08(c), we have construed this statute to permit authorized parties to obtain records from local government entities in addition to State entities … . Matter of State of New York v David B., 2017 NY Slip Op 08831, Second Dept 12-20-17

 

MENTAL HYGIENE LAW (SEX OFFENDERS, CIVIL COMMITMENT, SEALED LOCAL GOVERNMENT RECORDS PROPERLY UNSEALED FOR CONSIDERATION IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING (SECOND DEPT))/EVIDENCE (MENTAL HYGIENE LAW, SEX OFFENDERS, SEALED LOCAL GOVERNMENT RECORDS PROPERLY UNSEALED FOR CONSIDERATION IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING (SECOND DEPT))/MUNICIPAL LAW (SEALED RECORDS, MENTAL HYGIENE LAW, SEX OFFENDERS,  SEALED LOCAL GOVERNMENT RECORDS PROPERLY UNSEALED FOR CONSIDERATION IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING (SECOND DEPT))/SEALED RECORDS SEX OFFENDERS, CIVIL COMMITMENT, SEALED LOCAL GOVERNMENT RECORDS PROPERLY UNSEALED FOR CONSIDERATION IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING (SECOND DEPT))

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THREE-FOOT HEIGHT DIFFERENTIAL IN ROOF LEVELS WAS NOT THE TYPE OF ELEVATION HAZARD CONTEMPLATED BY LABOR LAW 240 (1) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the three-foot height differential between roof levels did not present the type of elevation hazard contemplated by Labor Law 249 (1). Plaintiff climbed to the higher level to retrieve a ladder and fell off when his foot slipped on the edge of the higher level:

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The plaintiff and his coworker climbed to this higher level of the roof without using any equipment. When the plaintiff attempted to descend to the lower level of the roof, his right foot slipped on the lip of the upper level, and he fell onto the lower level. …

The defendants established … that Labor Law § 240(1) does not apply because the three-foot- height differential between the two levels of the roof did not present the sort of elevation-related risk protected by that statute … . Pita v Roosevelt Union Free Sch. Dist., 2017 NY Slip Op 08869, Second Dept 12-20-17

 

LABOR LAW-CONSTRUCTION LAW (THREE-FOOT HEIGHT DIFFERENTIAL IN ROOF LEVELS WAS NOT THE TYPE OF ELEVATION HAZARD CONTEMPLATED BY LABOR LAW 240 (1) (SECOND DEPT))/ELEVATION RELATED RISK (LABOR LAW 240 (1), THREE-FOOT HEIGHT DIFFERENTIAL IN ROOF LEVELS WAS NOT THE TYPE OF ELEVATION HAZARD CONTEMPLATED BY LABOR LAW 240 (1) (SECOND DEPT))

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BANK WAS UNABLE TO DEMONSTRATE STANDING AND FAILED TO MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate it had standing to foreclose. Therefore the bank’s motion for summary judgment should not have been granted. Among other failings, the requirements of the business records exception to the hearsay rule were not met:

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Here, the plaintiff produced the mortgage, the unpaid note, and evidence of the appellant’s default. However, the plaintiff failed, prima facie, to establish its standing. Where, as here, the note has been endorsed in blank, the purported holder of the note must establish its standing by demonstrating that the original note was physically delivered to it prior to the commencement of the action … . The plaintiff attempted to establish its standing through the affidavit of Myron D. Keyes, Vice President Loan Documentation of Wells Fargo Bank, N.A. (hereinafter Wells Fargo), the servicing agent to the plaintiff. However, Keyes averred only that the plaintiff was “in possession of” the note. The plaintiff subsequently submitted a further affidavit from April J. Linn, another Vice President Loan Documentation of Wells Fargo. Unlike Keyes, Linn submitted documentary evidence showing that Wells Fargo was appointed the plaintiff’s servicing agent on February 21, 2014. Linn further averred, based on her familiarity with the business records maintained by Wells Fargo, that the plaintiff “had possession of the [note] as of November 28, 2006.” However, Linn’s affidavit failed, among other things, to explain how a review of the business records of a servicing agent appointed in 2014 could prove that the plaintiff had obtained physical possession of the note more than seven years earlier. In sum, Keyes’ affidavit, as well as Linn’s subsequent affidavit, provided neither sufficient factual details to establish the physical delivery of the note to the plaintiff prior to the commencement of this action … , nor the foundational knowledge required to admit such factual details under the business records exception to the hearsay rule … . U.S. Bank N.A. v Brody, 2017 NY Slip Op 08873, Second Dept 12-20-17

FORECLOSURE (STANDING, EVIDENCE, BANK WAS UNABLE TO DEMONSTRATE STANDING AND FAILED TO MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (FORECLOSURE, STANDING, BANK WAS UNABLE TO DEMONSTRATE STANDING AND FAILED TO MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/STANDING (FORECLOSURE, BANK WAS UNABLE TO DEMONSTRATE STANDING AND FAILED TO MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/HEARSAY (FORECLOSURE, BUSINESS RECORDS EXCEPTION,  BANK WAS UNABLE TO DEMONSTRATE STANDING AND FAILED TO MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/BUSINESS RECORDS (HEARSAY EXCEPTION, FORECLOSURE, BANK WAS UNABLE TO DEMONSTRATE STANDING AND FAILED TO MEET THE REQUIREMENTS OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, BANK’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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MOTION FOR SUMMARY JUDGMENT CANNOT BE BROUGHT WHERE DEFENDANT HAS ONLY FILED A NOTICE OF APPEARANCE, FORECLOSURE ACTION PROPERLY DISMISSED AS ABANDONED PURSUANT TO CPLR 3215 (SECOND DEPT).

The Second Department determined the bank’s motion for summary judgment in this foreclosure proceeding could not be entertained because issue had not been joined, only a notice of appearance had been filed by defendant. The action was properly deemed abandoned pursuant to CPLR 3215:

Contrary to the plaintiff’s contention, the Supreme Court properly denied those branches of its motion which were for summary judgment on the complaint and for an order of reference. “A motion for summary judgment may not be made before issue is joined (CPLR 3212[a]) and the requirement is strictly adhered to” … . Where, as here, a defendant has served a notice of appearance, but has not served “a responsive pleading,” in this case, an answer (see CPLR 3011), issue has not been joined, and the plaintiff is barred from seeking summary judgment … . …

Here, the defendants were served with the summons and complaint on December 30, 2010. The defendant had “twenty days after service of the summons” to appear “by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer” (CPLR 320[a]). … [T]he plaintiff’s time to bring a motion for leave to enter a default judgment expired on February 3, 2012, a year after the defendants’ default, but the plaintiff did not make such a motion until January 2015.

The plaintiff contends that the “sufficient cause shown” standard was met by the “significant delay” caused by an improper stipulation of discontinuance that was filed on February 22, 2013, and the proceedings it had to take to obtain an order dated August 15, 2013, vacating the stipulation and restoring the action to the calendar. However, … actions taken in 2013 and thereafter “offer no excuse as to why no action was taken within one year of the default, as required by statute.” In fact, this Court has held that “[a]n excuse which matures after the expiration of the statutory limit for entering a default judgment with the Clerk is legally insufficient to justify a plaintiff’s failure to enter the default judgment” … . For the same reason, there is no merit to the plaintiff’s argument that the same proceedings in 2013 established that it had not abandoned the action … . JBBNY, LLC v Begum, 2017 NY Slip Op 08816, Second Dept 12-20-17

 

FORECLOSURE (MOTION FOR SUMMARY JUDGMENT CANNOT BE BROUGHT WHERE DEFENDANT HAS ONLY FILED A NOTICE OF APPEARANCE, FORECLOSURE ACTION PROPERLY DISMISSED AS ABANDONED PURSUANT TO CPLR 3215 (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, JOINDER OF ISSUE, ABANDONMENT, MOTION FOR SUMMARY JUDGMENT CANNOT BE BROUGHT WHERE DEFENDANT HAS ONLY FILED A NOTICE OF APPEARANCE, FORECLOSURE ACTION PROPERLY DISMISSED AS ABANDONED PURSUANT TO CPLR 3215 (SECOND DEPT)))/NOTICE OF APPEARANCE (FORECLOSURE, JOINDER OF ISSUE, MOTION FOR SUMMARY JUDGMENT CANNOT BE BROUGHT WHERE DEFENDANT HAS ONLY FILED A NOTICE OF APPEARANCE, FORECLOSURE ACTION PROPERLY DISMISSED AS ABANDONED PURSUANT TO CPLR 3215 (SECOND DEPT))/JOINDER OF ISSUE (NOTICE OF APPEARANCE, MOTION FOR SUMMARY JUDGMENT CANNOT BE BROUGHT WHERE DEFENDANT HAS ONLY FILED A NOTICE OF APPEARANCE, FORECLOSURE ACTION PROPERLY DISMISSED AS ABANDONED PURSUANT TO CPLR 3215 (SECOND DEPT))/ABANDONMENT (CIVIL PROCEDURE, FORECLOSURE, MOTION FOR SUMMARY JUDGMENT CANNOT BE BROUGHT WHERE DEFENDANT HAS ONLY FILED A NOTICE OF APPEARANCE, FORECLOSURE ACTION PROPERLY DISMISSED AS ABANDONED PURSUANT TO CPLR 3215 (SECOND DEPT))/CPLR 3215 (FORECLOSURE, ABANDONMENT, MOTION FOR SUMMARY JUDGMENT CANNOT BE BROUGHT WHERE DEFENDANT HAS ONLY FILED A NOTICE OF APPEARANCE, FORECLOSURE ACTION PROPERLY DISMISSED AS ABANDONED PURSUANT TO CPLR 3215 (SECOND DEPT))

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FORECLOSURE ACTION PROPERLY DISMISSED FOR FAILURE TO COMPLY WITH 90-DAY DEMAND AND OVERALL DELAY AND NEGLECT (SECOND DEPT).

The Second Department determined this foreclosure proceeding was properly dismissed for failure to comply with a 90-day demand pursuant to CPLR 3216 (b)(3):

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Where, as here, a plaintiff has been served with a 90-day demand pursuant to CPLR 3216(b)(3), that plaintiff must comply with the demand by filing a note of issue or by moving, before the default date, either to vacate the demand or to extend the 90-day period … . The plaintiff failed to do either within the 90-day period. Therefore, in order to excuse the default, the plaintiff was required to demonstrate a justifiable excuse for its failure to timely file the note of issue or move to either vacate the demand or extend the 90-day period, as well as a potentially meritorious cause of action… . Nevertheless, it has been said that CPLR 3216 is “extremely forgiving” … , “in that it never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff’s action based on the plaintiff’s unreasonable neglect to proceed” … .

Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the defendant’s motion pursuant to CPLR 3216 to dismiss the action insofar as asserted against him. The plaintiff took no action whatsoever in the five years from the time the case was released from the foreclosure settlement part on October 15, 2009, until the defendant served his 90-day demand on October 10, 2014. Moreover, after failing to comply with the 90-day deadline, the plaintiff took no action for five months before belatedly filing a note of issue. The plaintiff failed to provide a justifiable excuse for its delay in filing a note of issue and failed to demonstrate a potentially meritorious cause of action. The plaintiff’s further contention that dismissal was too harsh a sanction, and that a lesser sanction was more appropriate under the circumstances, is unavailing, given the plaintiff’s “pattern[ ] of persistent neglect, a history of extensive delay, evidence of an intent to abandon prosecution and lack of any tenable excuse for such delay”  … . Deutsche Bank Natl. Trust Co. v Inga, 2017 NY Slip Op 08810, Second Department 12-20-17\

 

FORECLOSURE (CIVIL PROCEDURE, FORECLOSURE ACTION PROPERLY DISMISSED FOR FAILURE TO COMPLY WITH 90-DAY DEMAND AND OVERALL DELAY AND NEGLECT (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE ACTION PROPERLY DISMISSED FOR FAILURE TO COMPLY WITH 90-DAY DEMAND AND OVERALL DELAY AND NEGLECT (SECOND DEPT))/CPLR 3216(b)(3) (FORECLOSURE ACTION PROPERLY DISMISSED FOR FAILURE TO COMPLY WITH 90-DAY DEMAND AND OVERALL DELAY AND NEGLECT (SECOND DEPT))/ABANDONMENT OF ACTION (CIVIL PROCEDURE, FORECLOSURE ACTION PROPERLY DISMISSED FOR FAILURE TO COMPLY WITH 90-DAY DEMAND AND OVERALL DELAY AND NEGLECT (SECOND DEPT))/NEGLECT TO PROSECUTE (CIVIL PROCEDURE, FORECLOSURE ACTION PROPERLY DISMISSED FOR FAILURE TO COMPLY WITH 90-DAY DEMAND AND OVERALL DELAY AND NEGLECT (SECOND DEPT))

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PROOF DID NOT SUPPORT TERMINATION OF FATHER’S PARENTAL RIGHTS (SECOND DEPT).

The Second Department, reversing Family Court, determined the proof did not support the termination of father’s parental rights:

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An order terminating parental rights may be granted where the parent “abandoned [the] child for the period of six months immediately prior to the date on which the petition is filed in the court” … . Abandonment must be proven by clear and convincing evidence … .

Here, the agency failed to establish, by clear and convincing evidence, that during the relevant period of time the father evinced an intent to forgo his parental rights and obligations … . The record demonstrates that once the father had sufficient reason to believe he might be the father, he took action to assert his paternity …  and sought to have contact with the child, filed petitions for custody, visited with the child on two occasions and attempted to visit on a third occasion, and brought the child snacks, toys, and clothes during the visits. In addition, the father spoke with the caseworker on the phone on multiple occasions, paid child support in the amount of $25 per month, and provided the caseworker with information about where he was living, who he was living with, and about a daycare where he would enroll the child. Under these circumstances, the Family Court should have denied the petition on the merits, and dismissed the proceeding … . Matter of Darrell J. D. J. (Kenneth R.), 2017 NY Slip Op 08826, Second Dept 12-2017

FAMILY LAW (PARENTAL RIGHTS, PROOF DID NOT SUPPORT TERMINATION OF FATHER’S PARENTAL RIGHTS (SECOND DEPT))/PARENTAL RIGHTS (FAMILY LAW, PROOF DID NOT SUPPORT TERMINATION OF FATHER’S PARENTAL RIGHTS (SECOND DEPT))/ABANDONMENT (PARENTAL RIGHTS, PROOF DID NOT SUPPORT TERMINATION OF FATHER’S PARENTAL RIGHTS (SECOND DEPT))

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ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT SUBJECT TO THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined, among other things, the arbitration of the breach contract claim did not preclude tort actions against the school defendants by a former student and his parents. The Second Department further determined Supreme Court should not have dismissed causes of action against the school on grounds not raised by the parties, should not have dismissed causes of action against a party which did not move for dismissal, and the four-month Article 78 statute of limitations, which usually applies to actions against schools, did not apply to the tort causes of action raised here. The allegations included bullying and an improper relationship between the student and certain defendants:

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On a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), “the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail” … . The complaint must be liberally construed in the light most favorable to the plaintiff, and all allegations must be accepted as true … . Broadly construed, the allegations, inter alia, of an “inappropriate relationship” between the plaintiff’s son and Stowell, an instructor or teacher at Knox School, the allegations of multiple communications from Stowell to the son around the time of his temporary “disappearance” from school and home in late 2012, and the allegations that Stowell refused to cooperate with a police investigation, suffice to state causes of action sounding in negligence … , intentional infliction of emotional distress … , and negligent infliction of emotional distress … . Cheslowitz v Board of Trustees of the Knox Sch., 2017 NY Slip Op 08807, Second Dept 12-20-17

 

NEGLIGENCE (ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE SUBJECT TO THE STANDARD TORT STATUTE OF LIMITATIONS, NOT THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE SUBJECT TO THE STANDARD TORT STATUTE OF LIMITATIONS, NOT THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT))/CIVIL PROCEDURE  (ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE SUBJECT TO THE STANDARD TORT STATUTE OF LIMITATIONS, NOT THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT))/CPLR 3211 (a)(7)  (ALTHOUGH CONTRACT ACTION AGAINST SCHOOL DEFENDANTS WAS PRECLUDED BY THE ARBITRATION AWARD, TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE NOT PRECLUDED, THE TORT ACTIONS AGAINST THE SCHOOL DEFENDANTS WERE SUBJECT TO THE STANDARD TORT STATUTE OF LIMITATIONS, NOT THE ARTICLE 78 STATUTE OF LIMITATIONS, DISMISSAL SHOULD NOT HAVE BE GRANTED ON A GROUND NOT RAISED BY THE PARTIES, DISMISSAL SHOULD NOT HAVE BEEN GRANTED IN FAVOR OF A DEFENDANT WHO DID NOT MOVE FOR DISMISSAL (SECOND DEPT))

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DEFENDANT WAS NOT AFFORDED EFFECTIVE COUNSEL AT THE SORA RISK LEVEL HEARING, COUNSEL DID NOT ADVOCATE FOR HIM AND DID NOT UNDERSTAND DOWNWARD DEPARTURE WAS AVAILABLE, NEW HEARING ORDERED (SECOND DEPT).

The Second Department determined defendant was entitled to a new Sex Offender Registration Act (SORA) risk level hearing because his attorney did not advocate his position and did not understand the availability of downward departure:

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A defendant has a right to the effective assistance of counsel in a SORA proceeding … . Here, the defendant’s counsel “failed to litigate any aspect of the adjudication” … , and, instead, affirmatively asserted that there was no basis on which to challenge or depart from the presumptive risk level. Moreover, defense counsel’s comments suggested that there was no basis for a downward departure because the points “add[ed] up validly,” thus demonstrating a misunderstanding of the law regarding downward departures from the presumptive risk level … . These facts, as well as defense counsel’s failure to seek a downward departure under the circumstances of this case, operated to deprive the defendant of meaningful representation in the SORA proceeding … . People v Collins, 2017 NY Slip Op 08866, Second Dept 12-20-17

 

CRIMINAL LAW (SORA, DEFENDANT WAS NOT AFFORDED EFFECTIVE COUNSEL AT THE SORA RISK LEVEL HEARING, COUNSEL DID NOT ADVOCATE FOR HIM AND DID NOT UNDERSTAND DOWNWARD DEPARTURE WAS AVAILABLE, NEW HEARING ORDERED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, SORA HEARING, DEFENDANT WAS NOT AFFORDED EFFECTIVE COUNSEL AT THE SORA RISK LEVEL HEARING, COUNSEL DID NOT ADVOCATE FOR HIM AND DID NOT UNDERSTAND DOWNWARD DEPARTURE WAS AVAILABLE, NEW HEARING ORDERED (SECOND DEPT))/INEFFECTIVE ASSISTANCE (SORA, DEFENDANT WAS NOT AFFORDED EFFECTIVE COUNSEL AT THE SORA RISK LEVEL HEARING, COUNSEL DID NOT ADVOCATE FOR HIM AND DID NOT UNDERSTAND DOWNWARD DEPARTURE WAS AVAILABLE, NEW HEARING ORDERED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (ATTORNEYS, INEFFECTIVE ASSISTANCE, DEFENDANT WAS NOT AFFORDED EFFECTIVE COUNSEL AT THE SORA RISK LEVEL HEARING, COUNSEL DID NOT ADVOCATE FOR HIM AND DID NOT UNDERSTAND DOWNWARD DEPARTURE WAS AVAILABLE, NEW HEARING ORDERED (SECOND DEPT))

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FAILURE TO ADEQUATELY QUESTION JUROR ABOUT HER ABILITY TO BE FAIR AFTER SHE INDICATED SHE DID NOT THINK A PERSON SHOULD RESPOND TO VIOLENCE WITH VIOLENCE REQUIRED REVERSAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the court did not sufficiently question a juror about her ability to be fair after she indicated she didn’t think a person should respond to violence with violence:

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Here, during voir dire, a prospective juror indicated in response to questioning by defense counsel that she felt “you are never in the right if you respond to aggression with physical violence” and should “always turn the other cheek,” and that it was possible her belief could influence how she would decide the case. When the Supreme Court followed up by asking the prospective juror if her “religious beliefs” affected her verdict when she previously served on a criminal jury, she stated “I’m an atheist.” The court did not inquire further into the prospective juror’s ability to render an impartial verdict.

Under the circumstances of this case, the prospective juror’s statements revealed a state of mind likely to preclude her from rendering an impartial verdict, and thus, it was incumbent upon the Supreme Court to ascertain that she would render an impartial verdict based on the evidence … . The court failed to obtain an unequivocal assurance from the prospective juror, who never indicated that “religious beliefs” might influence her decision, that she would render an impartial verdict based on the evidence despite her feelings about the use of violence … . Further, the court’s collective inquiry to the whole panel as to whether “everybody here” could be fair and impartial was insufficient to constitute an unequivocal declaration of impartiality from the prospective juror at issue … . People v Francois, 2017 NY Slip Op 08844, Second Dept 12-20-17

 

CRIMINAL LAW (FAILURE TO ADEQUATELY QUESTION JUROR ABOUT HER ABILITY TO BE FAIR AFTER SHE INDICATED SHE DID NOT THINK A PERSON SHOULD RESPOND TO VIOLENCE WITH VIOLENCE REQUIRED REVERSAL (SECOND DEPT))/VOIR DIRE (CRIMINAL LAW, FAILURE TO ADEQUATELY QUESTION JUROR ABOUT HER ABILITY TO BE FAIR AFTER SHE INDICATED SHE DID NOT THINK A PERSON SHOULD RESPOND TO VIOLENCE WITH VIOLENCE REQUIRED REVERSAL (SECOND DEPT))/JURORS (CRIMINAL LAW, VOIR DIRE, FAILURE TO ADEQUATELY QUESTION JUROR ABOUT HER ABILITY TO BE FAIR AFTER SHE INDICATED SHE DID NOT THINK A PERSON SHOULD RESPOND TO VIOLENCE WITH VIOLENCE REQUIRED REVERSAL (SECOND DEPT))

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