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FAILURE TO APPOINT NEW COUNSEL IN THE THIS CUSTODY PROCEEDING, AFTER RELIEVING FATHER’S PRIOR COUNSEL, VIOLATED FATHER’S RIGHT TO COUNSEL.

The Second Department determined Family Court’s failure to appoint new counsel for father after relieving father’s prior counsel in this modification of custody proceeding deprived father of his right to counsel:

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Under the circumstances presented, where the Family Court granted assigned counsel’s motion to be relieved, refused to assign the father a new attorney, and then compelled the father to choose between representing himself or having his petition dismissed, the Family Court violated the father’s right to be represented by counsel … . The father neither forfeited his right to counsel nor knowingly, voluntarily, and intelligently waived his right to counsel … . Moreover, the mere fact that the court granted the motion of the father’s first assigned counsel to be relieved did not serve to extinguish the father’s right to have another attorney assigned to represent him … . Accordingly, upon granting the motion of the father’s assigned counsel to be relieved of his assignment, the Family Court should have assigned the father new counsel … . Matter of Rosado v Badillo, 2017 NY Slip Op 05096, 2nd Dept 6-21-17

FAMILY LAW (ATTORNEYS, FAILURE TO APPOINT NEW COUNSEL IN THE THIS CUSTODY PROCEEDING, AFTER RELIEVING FATHER’S PRIOR COUNSEL, VIOLATED FATHER’S RIGHT TO COUNSEL)/ATTORNEYS (FAMILY LAW, FAILURE TO APPOINT NEW COUNSEL IN THE THIS CUSTODY PROCEEDING, AFTER RELIEVING FATHER’S PRIOR COUNSEL, VIOLATED FATHER’S RIGHT TO COUNSEL)/CUSTODY (FAMILY LAW , ATTORNEYS, FAILURE TO APPOINT NEW COUNSEL IN THE THIS CUSTODY PROCEEDING, AFTER RELIEVING FATHER’S PRIOR COUNSEL, VIOLATED FATHER’S RIGHT TO COUNSEL)/RIGHT TO COUNSEL (FAMILY LAW, CUSTODY, FAILURE TO APPOINT NEW COUNSEL IN THE THIS CUSTODY PROCEEDING, AFTER RELIEVING FATHER’S PRIOR COUNSEL, VIOLATED FATHER’S RIGHT TO COUNSEL)

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PARTY SUBJECT TO THIS ORDER OF PROTECTION PROCEEDING DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL.

The Second Department determined Family Court did not ensure that the party subject to an order of protection proceeding knowingly and intelligently waived his right to counsel:

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A party in a proceeding pursuant to Family Court Act article 8 has the right to be represented by counsel (see Family Ct Act § 262[a][ii]), but may waive that right provided that he or she does so knowingly, intelligently, and voluntarily … . In order to determine whether a party is validly waiving the right to counsel, the court must conduct a “searching inquiry” to ensure that the waiver is knowing, intelligent, and voluntary … . ” While there is no rigid formula to the court’s inquiry, there must be a showing that the party was aware of the dangers and disadvantages of proceeding without counsel'” … , and it is the “better practice” for the court to inquire about the litigant’s ” age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver'” … .

Here, the record was inadequate to demonstrate that the appellant validly waived his right to counsel … . Accordingly, the order must be reversed, and the matter remitted to the Family Court, Kings County, for a new hearing at which the appellant shall either appear with counsel or knowingly, voluntarily, and intelligently waive his right to counsel, and a new determination on the petition thereafter. Matter of Dixon v Marshall, 2017 NY Slip Op 05085, 2nd Dept 6-21-17

 

FAMILY LAW (PARTY SUBJECT TO THIS ORDER OF PROTECTION PROCEEDING DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL)/ATTORNEYS (FAMILY LAW, ORDER OF PROTECTION, PARTY SUBJECT TO THIS ORDER OF PROTECTION PROCEEDING DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL)/RIGHT TO COUNSEL (FAMILY LAW, ORDER OF PROTECTION, PARTY SUBJECT TO THIS ORDER OF PROTECTION PROCEEDING DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL)/ORDER OF PROTECTION (FAMILY LAW, RIGHT TO COUNSEL, PARTY SUBJECT TO THIS ORDER OF PROTECTION PROCEEDING DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL)

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THERE WERE QUESTIONS OF FACT WHETHER THE SUPERVISORS’ FAILURE TO TAKE APPROPRIATE ACTION ON COMPLAINTS OF SEXUAL DISCRIMINATION BY THE COMPANY PRESIDENT CONSTITUTED AIDING AND ABETTING DISCRIMINATION AND RETALIATION.

The Second Department, reversing Supreme Court, determined the sexual discrimination and retaliation causes of action against supervisors, to whom plaintiffs complained about the alleged sexual harassment by the president of the company, should not have been dismissed. It was alleged the supervisors failed to take appropriate action on the complaints and thereby aided and abetted the discrimination and (re: one supervisor) the retaliation causes of action:

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An employee who did not participate in the primary violation itself, but who aided and abetted that conduct, may be individually liable based on those actions under both the NYSHRL [New York State Human Rights Law] and the NYCHRL [New York City Human Rights Law] … . The NYSHRL and the NYCHRL each provide that it is “an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden [thereunder], or to attempt to do so” … . Where a defendant provided, or attempted to provide, assistance to the individual or individuals participating in the primary violation, he or she may be found liable for aiding and abetting discriminatory conduct … .

“[T]he law is clear that a supervisor need not make derogatory comments or unwelcome sexual advances to subject himself or herself to liability under the [NYSHRL]. Rather, . . . a supervisor’s failure to take adequate remedial measures can rise to the level of actual participation’ under [the NYSHRL]” … . Indeed, a failure to conduct a proper and thorough investigation or to take remedial measures upon a plaintiff’s complaint of discriminatory conduct is sufficient to impose liability on an aiding and abetting theory … . * * *

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… [The]submissions demonstrated that triable issues of fact exist as to whether [defendant supervisor] had the “power to do more than carry out personnel decisions made by others”… and, thus, may be held individually liable for the alleged retaliation. Ananiadis v Mediterranean Gyros Prods., Inc., 2017 NY Slip Op 05058, 1st Dept 6-21-17

 

EMPLOYMENT LAW (HUMAN RIGHTS LAW, SEXUAL DISCRIMINATION, THERE WERE QUESTIONS OF FACT WHETHER THE SUPERVISORS’ FAILURE TO TAKE APPROPRIATE ACTION ON COMPLAINTS OF SEXUAL DISCRIMINATION BY THE COMPANY PRESIDENT CONSTITUTED AIDING AND ABETTING DISCRIMINATION AND RETALIATION)/SEXUAL DISCRIMINATION (EMPLOYMENT LAW, THERE WERE QUESTIONS OF FACT WHETHER THE SUPERVISORS’ FAILURE TO TAKE APPROPRIATE ACTION ON COMPLAINTS OF SEXUAL DISCRIMINATION BY THE COMPANY PRESIDENT CONSTITUTED AIDING AND ABETTING DISCRIMINATION AND RETALIATION)/RETALIATION (EMPLOYMENT LAW, SEXUAL DISCRIMINATION, THERE WERE QUESTIONS OF FACT WHETHER THE SUPERVISORS’ FAILURE TO TAKE APPROPRIATE ACTION ON COMPLAINTS OF SEXUAL DISCRIMINATION BY THE COMPANY PRESIDENT CONSTITUTED AIDING AND ABETTING DISCRIMINATION AND RETALIATION)/AIDING AND ABETTING (SEXUAL DISCRIMINATION AND RETALIATION, EMPLOYMENT LAW, THERE WERE QUESTIONS OF FACT WHETHER THE SUPERVISORS’ FAILURE TO TAKE APPROPRIATE ACTION ON COMPLAINTS OF SEXUAL DISCRIMINATION BY THE COMPANY PRESIDENT CONSTITUTED AIDING AND ABETTING DISCRIMINATION AND RETALIATION)/HUMAN RIGHTS LAW (EMPLOYMENT LAW, SEXUAL DISCRIMINATION, RETALIATION, THERE WERE QUESTIONS OF FACT WHETHER THE SUPERVISORS’ FAILURE TO TAKE APPROPRIATE ACTION ON COMPLAINTS OF SEXUAL DISCRIMINATION BY THE COMPANY PRESIDENT CONSTITUTED AIDING AND ABETTING DISCRIMINATION AND RETALIATION)

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LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED, NO SHOWING SCHOOL WAS AWARE OF POTENTIAL LIABILITY WITHIN 90 DAYS, NO ADEQUATE EXCUSE FOR THE DELAY, NO SHOWING SCHOOL WAS NOT PREJUDICED BY THE DELAY.

The Second Department, reversing Supreme Court, determined leave to file a late notice of claim should not have been granted in this gym-class injury case. There was no showing the school was made aware of its potential liability during the 90 days following the injury. Although a medical claim form was filled out and submitted to the school four days after the incident, the description of the incident did not alert the school to potential liability for the fall from gym equipment:

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Although a medical claim form was prepared and submitted to the School District four days after the accident occurred, it merely indicated that the infant petitioner lacerated his eyebrow and fractured his wrist when he fell after hanging from a pull-up bar during physical education class. Where, as here, “the incident and the injury do not necessarily occur only as the result of fault for which [the School District] may be liable”… , the School District’s “knowledge of the accident and the injury, without more, does not constitute actual knowledge of the essential facts constituting the claim'” … . Rather, “[i]n order to have actual knowledge of the essential facts constituting the claim, [a school district] must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim” … . Contrary to the petitioners’ contention, the medical claim form did not provide the School District with actual knowledge of the essential facts underlying the petitioners’ claims that, inter alia, it was negligent in its ownership, operation, management, maintenance, and control of the area where the accident occurred, that it was negligent in its hiring, training, and supervision of its employees and agents, or that its employees were negligent in supervising the injured petitioner and responding to the accident … .

Furthermore, the petitioners failed to demonstrate a reasonable excuse for the failure to serve a timely notice of claim and for the delay in filing the petition … . While the injured petitioner here is an infant, the failure to serve a timely notice of claim and the delay in seeking leave to serve a late notice of claim were not the product of the infant petitioner’s infancy

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Finally, as to the issue of substantial prejudice, the petitioners presented no evidence or plausible argument that their delay in serving a notice of claim did not substantially prejudice the School District in defending on the merits … . The assertion contained in the affirmation of the petitioners’ attorney which was submitted in support of their motion, that the School District was not substantially prejudiced by the delay in serving a notice of claim, was conclusory and, without more, inadequate to satisfy the petitioners’ minimal initial burden with respect to this factor … . Matter of D.M. v Center Moriches Union Free Sch. Dist., 2017 NY Slip Op 05090, 2nd Dept 6-21-17

 

EDUCATION-SCHOOL LAW (NEGLIGENCE, NOTICE OF CLAIM, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED, NO SHOWING SCHOOL WAS AWARE OF POTENTIAL LIABILITY WITHIN 90 DAYS, NO ADEQUATE EXCUSE FOR THE DELAY, NO SHOWING SCHOOL WAS NOT PREJUDICED BY THE DELAY)/NEGLIGENCE (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED, NO SHOWING SCHOOL WAS AWARE OF POTENTIAL LIABILITY WITHIN 90 DAYS, NO ADEQUATE EXCUSE FOR THE DELAY, NO SHOWING SCHOOL WAS NOT PREJUDICED BY THE DELAY)/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED, NO SHOWING SCHOOL WAS AWARE OF POTENTIAL LIABILITY WITHIN 90 DAYS, NO ADEQUATE EXCUSE FOR THE DELAY, NO SHOWING SCHOOL WAS NOT PREJUDICED BY THE DELAY)/

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NO NEW INJURIES WERE ALLEGED, THE DOCUMENT WAS A SUPPLEMENTAL, NOT AN AMENDED, BILL OF PARTICULARS, LEAVE OF COURT NOT REQUIRED.

The Second Department, reversing Supreme Court, determined the document submitted by plaintiff was a supplemental bill of particulars, not an amended bill of particulars. Therefore the document could be served without permission from the court:

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In his original bill of particulars dated February 8, 2006, the injured plaintiff alleged that he sustained permanent personal injuries, including depression, insomnia, agitation, poor concentration, loneliness, and tenseness, and that his injuries were accompanied by distress, depression, stress, and psychological difficulties. After the Supreme Court’s order granting the defendant’s motion for summary judgment dismissing the complaint was reversed on appeal … and the case was restored to the trial calendar, the plaintiffs served, pursuant to CPLR 3101(d), an expert witness disclosure dated August 4, 2013, and the affidavit of their expert psychologist dated April 27, 2013. Thereafter, the plaintiffs served a supplemental bill of particulars dated February 17, 2015, alleging the additional injuries or damages of post-traumatic stress disorder and future costs of long-term psychotherapy. In the order appealed from, the court, inter alia, granted that branch of the defendant’s motion which was to strike the supplemental bill of particulars and denied that branch of the plaintiffs’ cross motion which was to compel the defendant to accept the supplemental bill of particulars. The court found that the supplemental bill of particulars sought to add new injuries, thereby rendering it an amended bill of particulars, and that the plaintiffs failed to demonstrate a reasonable excuse for the inordinate delay in seeking leave to include the new injuries. The plaintiffs appeal.

Pursuant to CPLR 3043(b), a plaintiff in a personal injury action may serve a supplemental bill of particulars containing “continuing special damages and disabilities,” without leave of the court at any time, but not less than 30 days prior to trial, if it alleges “no new cause of action” or claims no “new injury.” Here, the plaintiffs sought to allege continuing consequences of the injuries suffered and described in the original bill of particulars, rather than new and unrelated injuries … . Since the contested bill of particulars is a supplemental bill of particulars, rather than an amended bill of particulars, and was served more than 30 days prior to trial, leave of court was not required … . Khosrova v Hampton Bays Union Free Sch. Dist., 2017 NY Slip Op 05075, 2nd Dept 6-21-17

 

CIVIL PROCEDURE (BILL OF PARTICULARS, NO NEW INJURIES WERE ALLEGED, THE DOCUMENT WAS A SUPPLEMENTAL, NOT AN AMENDED, BILL OF PARTICULARS, LEAVE OF COURT NOT REQUIRED)/BILL OF PARTICULARS (SUPPLEMENTAL VERSUS AMENDED, NO NEW INJURIES WERE ALLEGED, THE DOCUMENT WAS A SUPPLEMENTAL, NOT AN AMENDED, BILL OF PARTICULARS, LEAVE OF COURT NOT REQUIRED)

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INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED.

The Second Department, reversing Supreme Court, determined the proof of the allegedly forged signature on a power of attorney was insufficient to support declaring the power of attorney null and void:

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“A certificate of acknowledgment attached to an instrument such as a deed or a mortgage raises the presumption of due execution, which presumption . . . can be rebutted only after being weighed against any evidence adduced to show that the subject instrument was not duly executed'”… . ” [A] certificate of acknowledgment should not be overthrown upon evidence of a doubtful character, such as the unsupported testimony of interested witnesses, nor upon a bare preponderance of evidence, but only on proof so clear and convincing so as to amount to a moral certainty'” … .

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Here, the plaintiff failed to rebut the presumption of validity of the acknowledged power of attorney. Although an expert opinion is not necessarily required in order to establish that a document is a forgery, where an expert opinion is offered, the expert must “state with reasonable professional certainty that the signature at issue is not authentic” … . The plaintiff failed to present evidence authenticating the group of 31 exemplars upon which the plaintiff’s handwriting expert primarily relied … . Further, although the handwriting expert testified that he relied on several additional exemplars, those exemplars likewise were not authenticated … . Consequently, the testimony of the handwriting expert should not have been considered … .

The testimony of the plaintiff and other witnesses was not sufficient to establish, to a moral certainty, that the 2002 power of attorney was forged. The plaintiff denied having signed the 2002 power of attorney. However, “[s]omething more than a bald assertion of forgery is required to create an issue of fact contesting the authenticity of a signature”… . Kanterakis v Minos Realty I, LLC, 2017 NY Slip Op 05074, 2nd Dept 6-21-17

 

CIVIL PROCEDURE (FORGERY, POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)/EVIDENCE (FORGERY, POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)/FORGERY (POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)/EXPERT OPINION (FORGERY, POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)/FORGERY (POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)/CERTIFICATE OF ACKNOWLEDGMENT (POWER OF ATTORNEY, INSUFFICIENT PROOF SIGNATURE ON A POWER OF ATTORNEY WAS FORGED, SUPREME COURT REVERSED)

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ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION.

The Second Department, in a full-fledged opinion by Justice Cohen, determined the attorney general properly subpoenaed documents relevant to whether the non-profit Evergreen was practicing medicine without a license, but the subpoena had to be tailored to protect the First Amendment rights of Evergreen personnel. Evergreen counsels women in an effort to convince them not to terminate their pregnancies:

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There is no question that the Attorney General’s investigation is of the utmost importance to protecting the health and safety of women. However, it is equally important that such investigation be carried out with respect and sensitivity to the constitutional rights of those involved. While the subpoena seeks documents that generally bear a reasonable relation to the subject matter of the Attorney General’s investigation, the demands are not narrowly tailored to require production of only those documents directly related to Evergreen’s alleged unauthorized practice of medicine. Thus, we limit in scope the demands set forth in the subpoena to require the disclosure of only those documents that are substantially related to the Attorney General’s legitimate need to gather evidence to determine whether Evergreen has engaged in the unauthorized practice of medicine and which do not unnecessarily intrude on Evergreen’s First Amendment right to freedom of association. Matter of Evergreen Assn., Inc. v Schneiderman, 2017 NY Slip Op 05086, 2nd Dept 6-21-17

CIVIL PROCEDURE (SUBPOENAS, FREEDOM OF ASSOCIATION, ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION)/CONSTITUTIONAL LAW (SUBPOENAS, FREEDOM OF ASSOCIATION, ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION)/ABORTION (SUBPOENAS, FREEDOM OF ASSOCIATION, ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION)/SUBPOENAS (FREEDOM OF ASSOCIATION, ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION)/FREEDOM OF ASSOCIATION (SUBPOENAS, ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION)

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NOTICE OF APPEARANCE FILED ON BEHALF OF DEFENDANT BEFORE DEFENDANT WAS MADE A PARTY WAIVED ANY SUBSEQUENT LACK-OF-PERSONAL-JURISDICTION DEFENSE.

The Second Department determined a notice of appearance filed on behalf of a defendant (Dariusz Lojek) before he was made a party waived any subsequent defense alleging lack of personal jurisdiction. The subsequent amended summons and complaint naming Lojek as a party was deemed a nullity. After the statute of limitations passed, Lojek moved to dismiss:

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On August 22, 2011, the plaintiff commenced this action to recover damages for personal injuries against Asconcio, Inter Euro, Darek Cake Company, and the Grimaldi Bakery Co. Dariusz Lojek, the principal of both Inter Euro and Darek Cake, Inc., was not initially named as a defendant in the action. However, on June 20, 2012, Dariusz Lojek’s attorney filed a notice of appearance on his behalf, and demanded “that all Notices and Demands in this action be served upon the undersigned attorney at the address set forth below.” In a letter to the attorneys for the plaintiff and the defendants in the action, Dariusz Lojek’s attorney asked for “copies of any legal papers which you may have already filed in this action,” and requested to be advised of “pending appearances.”

Over three months later, on September 24, 2012, the plaintiff filed a supplemental summons and amended complaint deleting the defendant Grimaldi Bakery Co. from the caption, correcting the name of the defendant Darek Cake Company to Darek Cake, Inc., and adding Marzena Lojek and Dariusz Lojek, the alleged principals of Inter Euro and Darek Cake, Inc., as defendants in the action. Darek Cake, Inc., Marzena Lojek, and Dariusz Lojek were served with the supplemental summons and amended complaint in December 2012. …

Since the plaintiff failed to obtain leave of court or a stipulation between the parties before serving and filing the supplemental summons and amended complaint, that service may be deemed a nullity, and the amended complaint dismissed insofar as asserted against the additional parties for lack of personal jurisdiction … .

However, lack of personal jurisdiction may be waived … . Under the circumstances of this case, by his appearance in June 2012 and his voluntary participation in the action, Dariusz Lojek submitted to the jurisdiction of the court and waived any defense of lack of personal jurisdiction within the applicable statute of limitations … . Jaramillo v Asconcio, 2017 NY Slip Op 05073, 2nd Dept 6-21-17

 

CIVIL PROCEDURE (NOTICE OF APPEARANCE, WAIVER OF DEFENSES, NOTICE OF APPEARANCE FILED ON BEHALF OF DEFENDANT BEFORE DEFENDANT WAS MADE A PARTY WAIVED ANY SUBSEQUENT LACK-OF-PERSONAL-JURISDICTION DEFENSE)/ATTORNEYS (NOTICE OF APPEARANCE, WAIVER OF DEFENSES, NOTICE OF APPEARANCE FILED ON BEHALF OF DEFENDANT BEFORE DEFENDANT WAS MADE A PARTY WAIVED ANY SUBSEQUENT LACK-OF-PERSONAL-JURISDICTION DEFENSE)/NOTICE OF APPEARANCE (WAIVER OF JURISDICTIONAL DEFENSE,  NOTICE OF APPEARANCE FILED ON BEHALF OF DEFENDANT BEFORE DEFENDANT WAS MADE A PARTY WAIVED ANY SUBSEQUENT LACK-OF-PERSONAL-JURISDICTION DEFENSE)

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FURTHER LAWSUITS BETWEEN HUSBAND AND WIFE PROPERLY PROHIBITED BY THE COURT.

The Second Department determined it was appropriate to prohibit further lawsuits in this long-standing series of actions between husband and wife:

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The plaintiff appeals from the denial of that branch of his motion which was to enjoin the defendants from commencing any new litigation against, or engaging in any applications or motion practice in existing actions involving, the plaintiff, his medical practice, his wife, Janet Rugg Lew, or his counsel, Wand & Goody, LLP, without prior written permission of the Supreme Court. Although public policy generally mandates free access to the courts, a party may forfeit that right if he or she abuses the judicial process by engaging in vexatious litigation … . Here, the record reflects that both the plaintiff and the defendants have engaged in extensive vexatious litigation against each other in the Family Court and the Supreme Court from 2003 to the present. Under the circumstances of this case, it would only be appropriate to enjoin the defendants from engaging in further litigation if the plaintiff was enjoined as well. Accordingly, we reverse the order entered September 3, 2014, insofar as appealed from, and grant the subject branch of the plaintiff’s motion on condition that he stipulate that he be likewise enjoined from commencing any new litigation against the defendants or engaging in any applications or motion practice in existing actions involving the defendants without written permission of the Supreme Court. If the plaintiff does not so stipulate and serve and file such stipulation in accordance with the terms of this order, then we affirm the order insofar as appealed from. Lew v Sobel, 2017 NY Slip Op 05076, 2nd Dept 6-21-17

CIVIL PROCEDURE (FURTHER LAWSUITS BETWEEN HUSBAND AND WIFE PROPERLY PROHIBITED BY THE COURT)/VEXATIOUS LITIGATION (CIVIL PROCEDURE, FURTHER LAWSUITS BETWEEN HUSBAND AND WIFE PROPERLY PROHIBITED BY THE COURT)

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DEFENDANT EXPRESSLY DENIED THE INTENT ELEMENT OF UNLAWFUL POSSESSION OF A WEAPON DURING THE PLEA COLLOQUY, THE JUDGE DID NOT ADEQUATELY ADDRESS THE ISSUE, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ERROR.

The First Department, reversing defendant’s conviction by guilty plea, in the absence of preservation of the error, determined the plea colloquy negated an essential element of the crime. Unlawful possession of a weapon requires an intent to use the weapon unlawfully. Although such intent can be presumed, here defendant expressly negated it:

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This is a “rare case” where the preservation requirement for challenges to guilty pleas does not apply because “defendant’s factual recitation negate[d] an essential element of the crime pleaded to” and the court “accept[ed] the plea without making further inquiry to ensure that defendant underst[ood] the nature of the charge and that the plea [was] intelligently entered” .. . The crime of attempted possession of a weapon in the second degree requires that a defendant intend to use the weapon unlawfully against another. However, during the plea colloquy, defendant explicitly, repeatedly and consistently denied any intent to use the weapon against anyone, lawfully or otherwise, at the time the police recovered it or at any other time. The court asked followup questions, but they were ineffectual because defendant’s responses only reconfirmed that he expressly denied having the requisite intent. Although an express admission of unlawful intent may not have been necessary in the first place, particularly because such intent is presumed (see Penal Law § 265.15[4]), defendant expressly negated that intent. People v Medina-Feliz, 2017 NY Slip Op 05053, 1st Dept 6-20-17

CRIMINAL LAW (GUILTY PLEA, DEFENDANT EXPRESSLY DENIED THE INTENT ELEMENT OF UNLAWFUL POSSESSION OF A WEAPON DURING THE PLEA COLLOQUY, THE JUDGE DID NOT ADEQUATELY ADDRESS THE ISSUE, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ERROR)/APPEALS, (CRIMINAL LAW, GUILTY PLEA, DEFENDANT EXPRESSLY DENIED THE INTENT ELEMENT OF UNLAWFUL POSSESSION OF A WEAPON DURING THE PLEA COLLOQUY, THE JUDGE DID NOT ADEQUATELY ADDRESS THE ISSUE, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ERROR)/GUILTY PLEA (DEFENDANT EXPRESSLY DENIED THE INTENT ELEMENT OF UNLAWFUL POSSESSION OF A WEAPON DURING THE PLEA COLLOQUY, THE JUDGE DID NOT ADEQUATELY ADDRESS THE ISSUE, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ERROR)/WEAPON POSSESSION (UNLAWFUL POSSESSION OF A WEAPON REQUIRES AN INTENT TO USE THE WEAPON UNLAWFULLY, EXPRESS DENIAL OF THAT ELEMENT REQUIRED REVERSAL OF GUILTY PLEA)

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