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MOTHER’S PETITION FOR A DOWNWARD MODIFICATION OF CHILD SUPPORT SHOULD NOT HAVE BEEN DISMISSED BASED ON MOTHER’S PARAMOUR’S REFUSAL TO PROVIDE FINANCIAL DISCLOSURE.

The Fourth Department, reversing (modifying) Family Court, determined mother’s petition for a downward modification of child support should not have been dismissed based on the refusal of mother’s paramour to provide financial disclosure:

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… [T]he Support Magistrate erred in dismissing the mother’s cross petition for a downward modification of child support. The sole justification for that dismissal was the mother’s failure to provide financial disclosure from her paramour, a nonparty, who had filed an affidavit stating that he refused to provide financial disclosure to the court. “While certain penalties or sanctions may be appropriate for the individual conduct of [the mother] . . . , it is apparent that the actions of a nonparty weighed heavily in the decision to invoke the ultimate penalty’ “… . Under the circumstances of this case, we conclude that the court erred in dismissing the cross petition based on a nonparty’s refusal to disclose financial information voluntarily … . We therefore modify the order … by granting the mother’s objection in part and reinstating the mother’s cross petition for a downward modification of child support, and we remit the matter to Family Court for a new hearing on the cross petition. Matter of Deshotel v Mandile, 2017 NY Slip Op 04972, 4th Dept 6-16-17

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FAMILY LAW (CHILD SUPPORT, MOTHER’S PETITION FOR A DOWNWARD MODIFICATION OF CHILD SUPPORT SHOULD NOT HAVE BEEN DISMISSED BASED ON MOTHER’S PARAMOUR’S REFUSAL TO PROVIDE FINANCIAL DISCLOSURE)/CHILD SUPPORT (FAMILY LAW,  MOTHER’S PETITION FOR A DOWNWARD MODIFICATION OF CHILD SUPPORT SHOULD NOT HAVE BEEN DISMISSED BASED ON MOTHER’S PARAMOUR’S REFUSAL TO PROVIDE FINANCIAL DISCLOSURE)

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MOTHER’S REQUEST FOR A CONTINUANCE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING SHOULD HAVE BEEN GRANTED.

The Fourth Department determined Family Court abused its discretion when it refused mother’s stress-related request for a continuation in this termination of parental rights proceeding:

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We agree with the mother that the court abused its discretion in denying her counsel’s request for a continuance when, due to emotional distress, the mother was unable to appear in the afternoon on the final day of her hearing. The determination whether to grant a request for an adjournment for any purpose is a matter resting within the sound discretion of the trial court … . Under the circumstances presented here, including that the issue is the termination of parental rights, we conclude that it was an abuse of discretion to deny the mother’s request for a continuance. We therefore vacate the order and remit the matter to Family Court to allow the mother to present evidence at a reopened fact-finding hearing… . Matter of Destiny G. (Laricia H.), 2017 NY Slip Op 04965, 4th Dept 6-16-17

FAMILY LAW (MOTHER’S REQUEST FOR A CONTINUANCE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING SHOULD HAVE BEEN GRANTED)/ADJOURNMENTS (FAMILY LAW, MOTHER’S REQUEST FOR A CONTINUANCE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING SHOULD HAVE BEEN GRANTED)

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PROSECUTOR ADMONISHED FOR MISCONDUCT, CONVICTION AFFIRMED BECAUSE THE JURY WAS PROPERLY INSTRUCTED AND THE EVIDENCE OF GUILT WAS OVERWHELMING.

The Fourth Department did not reverse defendant’s conviction because of prosecutorial misconduct, but took the opportunity to admonish the prosecutor responsible for it, noting that several past reversals were based on that same prosecutor’s misconduct. The court determined the fact that the trial judge sustained objections to the misconduct and properly instructed the jury, together with the overwhelming evidence of guilt, allowed the conviction to stand:

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The People correctly concede that the prosecutor improperly appealed to the sympathy of the jury … . The People also correctly concede that the prosecutor improperly implied that a potential adolescent witness did not testify because he felt “guilt” about defendant’s actions; County Court, however, properly sustained defense counsel’s objection to the prosecutor’s statement and gave a curative instruction, which the jury is presumed to have followed … . Thus, with respect to that instance of misconduct, we conclude that any prejudice was alleviated … . The People also correctly concede that the prosecutor denigrated defense counsel by stating that he intentionally attempted to confuse an adolescent prosecution witness. We further conclude that, in an attempt to discredit the testimony of an adolescent defense witness, the prosecutor misstated the evidence with respect to whether the witness had spoken with defendant regarding the allegations against him. Although the prosecutor properly responded to defense counsel’s remarks during summation attacking the credibility of the victim … , she also improperly vouched for the credibility of the victim’s testimony … . Furthermore, the prosecutor improperly acted as an unsworn expert by describing defendant’s behavior towards the victim as “classic grooming behavior,” and as an unsworn witness with respect to reasons why the victim delayed in reporting what had occurred … . People v Flowers, 2017 NY Slip Op 04990, 4th Dept 6-16-17

CRIMINAL LAW (PROSECUTORIAL MISCONDUCT, PROSECUTOR ADMONISHED FOR MISCONDUCT, CONVICTION AFFIRMED BECAUSE THE JURY WAS PROPERLY INSTRUCTED AND THE EVIDENCE OF GUILT WAS OVERWHELMING)/ATTORNEYS (CRIMINAL LAW, PROSECUTORIAL MISCONDUCT, PROSECUTOR ADMONISHED FOR MISCONDUCT, CONVICTION AFFIRMED BECAUSE THE JURY WAS PROPERLY INSTRUCTED AND THE EVIDENCE OF GUILT WAS OVERWHELMING)/PROSECUTORIAL MISCONDUCT (PROSECUTOR ADMONISHED FOR MISCONDUCT, CONVICTION AFFIRMED BECAUSE THE JURY WAS PROPERLY INSTRUCTED AND THE EVIDENCE OF GUILT WAS OVERWHELMING)

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FAILURE TO PROVIDE DEFENDANT WITH A STATEMENT OF CONVICTION REQUIRED VACATION OF HIS SENTENCE AS A SECOND FELONY OFFENDER IN THE INTEREST OF JUSTICE.

The Fourth Department determined defendant was not accorded the opportunity to contest the constitutionality of a prior conviction. Therefore the sentence as a second felony offender was vacated even though the error was not preserved for review (interest of justice). Defendant was not provided with a statement of conviction. The fact that the prior conviction was an element of the charged offense in a special information did not obviate the need for a statement of conviction:

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…[D]defendant contends that the People failed to comply with the procedural requirements of CPL 400.15 in seeking to have him sentenced as a second violent felony offender inasmuch as they did not file a predicate felony offender statement as required by CPL 400.15 (2). Although that contention is not preserved for our review… , we nonetheless exercise our discretion to review it as a matter of discretion in the interest of justice … . Contrary to the assertion of the prosecutor at sentencing, “the need for a predicate felony offender statement was not obviated by defendant’s pretrial admission to a special information setting forth his prior felony conviction as an element of a count charging criminal possession of a weapon. The special information did not permit defendant to raise constitutional challenges to his prior conviction, as he had the right to do before being sentenced as a second felony offender” … . We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for the filing of a predicate felony offender statement pursuant to CPL 400.15 and resentencing. People v Edwards, 2017 NY Slip Op 04983, 4th Dept 6-16-17

CRIMINAL LAW (SENTENCING, SECOND FELONY OFFENDER, FAILURE TO PROVIDE DEFENDANT WITH A STATEMENT OF CONVICTION REQUIRED VACATION OF HIS SENTENCE AS A SECOND FELONY OFFENDER)/STATEMENT OF CONVICTION (SECOND FELONY OFFENDER, FAILURE TO PROVIDE DEFENDANT WITH A STATEMENT OF CONVICTION REQUIRED VACATION OF HIS SENTENCE AS A SECOND FELONY OFFENDER)/SECOND FELONY OFFENDER (SENTENCING, FAILURE TO PROVIDE DEFENDANT WITH A STATEMENT OF CONVICTION REQUIRED VACATION OF HIS SENTENCE AS A SECOND FELONY OFFENDER)/APPEALS (CRIMINAL LAW, INTEREST OF JUSTICE, FAILURE TO PROVIDE DEFENDANT WITH A STATEMENT OF CONVICTION REQUIRED VACATION OF HIS SENTENCE AS A SECOND FELONY OFFENDER)

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DEFENDANT, WHO HAD BEEN RETAINED AFTER A PLEA OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, SHOULD NOT HAVE BEEN SUMMARILY RELEASED BY COUNTY COURT WITHOUT A HEARING.

The Fourth Department, reversing County Court, determined defendant, who had been retained after he had been indicted for assault and entered a plea of not responsible by reason of mental disease or defect, should not have been released without a hearing:

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Although originally determined to suffer from a “dangerous mental disorder,” defendant progressed in treatment to the point where he was transferred to a nonsecure psychiatric facility. Petitioner nevertheless contends that defendant remains “[m]entally ill” and in need of “care and treatment as a patient, in the in-patient services of a psychiatric center under the jurisdiction of the state office of mental health” (CPL 330.20 [1] [d]). As a result, petitioner commenced this proceeding seeking a “[s]ubsequent retention order” (CPL 330.20 [1] [i]). In support of the application, petitioner submitted, inter alia, an appropriate affidavit from a psychiatric examiner in accordance with CPL 330.20 (20). Defendant demanded a hearing pursuant to CPL 330.20 (9), but he did not submit any affidavits in opposition to the application. * * *

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Before issuing a release order, the court must conduct a hearing to “determine the defendant’s present mental condition” (CPL 330.20 [12]). Here, the undisputed submissions before the court in support of petitioner’s application for a subsequent retention order demonstrated that defendant remained “mentally ill” as defined in CPL 330.20 (1) (d) and in need of in-patient treatment. Nonetheless, without taking any testimony or receiving any evidence, the court issued a release order. That, itself, was error. Moreover, before issuing a release order, the court must “find[] that the defendant does not have a dangerous mental disorder and is not mentally ill” (CPL 330.20 [12]; … ). Here, we agree with petitioner that the court further erred in failing to make any finding on that issue. Guttmacher v S.J., 2017 NY Slip Op 04968, 4th Dept 6-16-17

 

CRIMINAL LAW (MENTAL DISEASE OR DEFECT, DEFENDANT, WHO HAD BEEN RETAINED AFTER A PLEA OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, SHOULD NOT HAVE BEEN SUMMARILY RELEASED BY COUNTY COURT WITHOUT A HEARING)/MENTAL DISEASE OR DEFECT (CRIMINAL LAW, DEFENDANT, WHO HAD BEEN RETAINED AFTER A PLEA OF NOT RESPONSIBLE BY REASON OF MENTAL DISEASE OR DEFECT, SHOULD NOT HAVE BEEN SUMMARILY RELEASED BY COUNTY COURT WITHOUT A HEARING)

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FAILURE TO PROVIDE MEANINGFUL NOTICE OF A JURY NOTE REQUIRED REVERSAL.

The Fourth Department determined the judge’s failure to provide meaningful notice of a jury note, which was sent out just before a note stating the jury had reached a verdict, was a mode of proceedings error requiring reversal:

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… [T]he record fails to reflect that the court provided defense counsel with meaningful notice of a substantive jury note … Thus, a mode of proceedings error occurred, requiring reversal … . The record reflects that, during a period of approximately 30 minutes when the court had excused counsel, the jury sent three notes, which the court properly marked as court exhibits. The last note stated that the jury had reached a verdict; a prior note, however, stated “we the jury request a copy of the wording of the law.” Inasmuch as the court would have been prohibited from providing the jury with either a copy of the statute, or a copy of its jury instructions, without the consent of defendant … . we reject the contention of the People that the note was ministerial, and not substantive … . People v Holloman, 2017 NY Slip Op 05015, 4th Dept 6-16-17

CRIMINAL LAW (JURY NOTES, FAILURE TO PROVIDE MEANINGFUL NOTICE OF A JURY NOTE REQUIRED REVERSAL)/JURY NOTES (CRIMINAL LAW, FAILURE TO PROVIDE MEANINGFUL NOTICE OF A JURY NOTE REQUIRED REVERSAL)

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COUNTY COURT FAILED TO MAKE A YOUTHFUL OFFENDER DETERMINATION, CASE REMITTED.

The Fourth Department noted that County Court did not make a determination on the record whether defendant was a youthful offender, which is mandatory. The case was remitted for that purpose:

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We agree with defendant, however, that the court erred in failing to determine whether he should be afforded youthful offender status … . Defendant was convicted of a sex offense enumerated in CPL 720.10 (2) (a) (iii), and the court therefore was required ” to determine on the record whether . . . defendant is an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10 (3)’ ” … . Because the court failed to make such a determination, we hold the case, reserve decision, and remit the matter to County Court to make and state for the record “a determination of whether defendant is a youthful offender” … . People v Wilson, 2017 NY Slip Op 04985, 4th Dept 6-16-17

CRIMINAL LAW (YOUTHFUL OFFENDER, COUNTY COURT FAILED TO MAKE A YOUTHFUL OFFENDER DETERMINATION, CASE REMITTED)/YOUTHFUL OFFENDER (CRIMINAL LAW,  COUNTY COURT FAILED TO MAKE A YOUTHFUL OFFENDER DETERMINATION, CASE REMITTED)

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RELEASE DID NOT ENCOMPASS A BREACH OF THE SETTLEMENT AGREEMENT ITSELF.

The Fourth Department, over an extensive dissent, determined a release from liability for flooding on plaintiff’s land did not encompass a breach of contract action concerning the failure of a drainage system. As part of the settlement agreement in the prior action stemming from the flooding, defendant agreed to construct a drainage system which, plaintiff alleges, did not alleviate the flooding:

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It is well settled that settlement agreements and general releases are “governed by principles of contract law”… . Viewing the facts as alleged in the first and second causes of action, for breach of contract, in the light most favorable to plaintiff and affording plaintiff all favorable inferences … ,we conclude that the release does not “evince an intention to encompass the distinct contractual obligations defendant undertook upon which plaintiff’s breach of contract causes of action are premised” … , i.e., the breach of the settlement agreement itself. Marinaccio v Town of Clarence, 2017 NY Slip Op 04962, 4th Dept 6-16-17

CONTRACT LAW (RELEASE DID NOT ENCOMPASS A BREACH OF THE SETTLEMENT AGREEMENT ITSELF)/RELEASE (CONTRACT LAW, RELEASE DID NOT ENCOMPASS A BREACH OF THE SETTLEMENT AGREEMENT ITSELF)

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STATUTE OF LIMITATIONS ENDED ON A SATURDAY, ACTION COMMENCED ON THE FOLLOWING BUSINESS DAY WAS TIMELY, DISMISSAL OF COMPLAINT REVERSED SUA SPONTE IN THE INTEREST OF JUSTICE.

The Fourth Department reversed the dismissal of this Labor Law retaliatory discharge cause of action in the interest of justice. The two-year statute of limitations ended on a Saturday. The action was commenced on the next business day (a Tuesday following Columbus Day), rendering the action timely. The correct calculation had not been raised below or on appeal:

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Defendant failed to meet its initial burden of establishing that the statute of limitations period had expired … . Even assuming, arguendo, that plaintiff’s cause of action accrued on October 10, 2013, we note that the two-year statute of limitations period ended on a Saturday and therefore was extended until “the next succeeding business day” (General Construction Law § 25-a [1]…). Because Columbus Day fell on the Monday following that Saturday (see § 24), the next business day was October 13, 2015, the date on which the action was commenced. Plaintiff’s complaint therefore was timely.

Although plaintiff did not assert that calculation in opposing defendant’s motion before the motion court or on this appeal, we deem it appropriate to consider it sua sponte in the interest of justice … . As noted above, defendant had the burden of establishing that the statute of limitations period had expired, and it could not refute that such period was extended by operation of law to October 13, 2015 … . Wilson v Exigence of Team Health, 2017 NY Slip Op 04993, 4th Dept 6-16-17

 

CIVIL PROCEDURE (STATUTE OF LIMITATIONS ENDED ON A SATURDAY, ACTION COMMENCED ON THE FOLLOWING BUSINESS DAY WAS TIMELY, DISMISSAL OF COMPLAINT REVERSED SUA SPONTE IN THE INTEREST OF JUSTICE)/STATUTE OF LIMITATIONS (CALCULATION, STATUTE OF LIMITATIONS ENDED ON A SATURDAY, ACTION COMMENCED ON THE FOLLOWING BUSINESS DAY WAS TIMELY, DISMISSAL OF COMPLAINT REVERSED SUA SPONTE IN THE INTEREST OF JUSTICE)/GENERAL CONSTRUCTION LAW (CALCULATION OF STATUTE OF LIMITATIONS, STATUTE OF LIMITATIONS ENDED ON A SATURDAY, ACTION COMMENCED ON THE FOLLOWING BUSINESS DAY WAS TIMELY, DISMISSAL OF COMPLAINT REVERSED SUA SPONTE IN THE INTEREST OF JUSTICE)/APPEALS (STATUTE OF LIMITATIONS ENDED ON A SATURDAY, ACTION COMMENCED ON THE FOLLOWING BUSINESS DAY WAS TIMELY, DISMISSAL OF COMPLAINT REVERSED SUA SPONTE IN THE INTEREST OF JUSTICE)

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NOTICES OF DISCONTINUANCE FILED AFTER MOTIONS TO DISMISS WERE BROUGHT, BUT BEFORE RESPONSIVE PLEADINGS, WERE TIMELY.

The Fourth Department, reversing Supreme Court, determined that plaintiff’s notices of discontinuance were timely. Supreme Court had held the notices were not timely because they were filed after defendants’ motions to dismiss.  The statute requires that a discontinuance (without the need for court involvement) be filed before any responsive pleadings. A motion to dismiss is not a responsive pleading:

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We conclude that the notices of discontinuance were not untimely because a motion to dismiss pursuant to CPLR 3211 is not a “responsive pleading” for purposes of CPLR 3217 (a) (1). A motion pursuant to CPLR 3211 does not fall within the meaning of a “pleading” as defined by CPLR 3011. Rather, a “motion” is defined in the CPLR as “an application for an order” (CPLR 2211). Indeed, the terms “responsive pleading” and “motion to dismiss pursuant to CPLR 3211” are not used interchangeably in the CPLR but, rather, are treated as distinct, separate items. For instance, CPLR 3211 (d) provides that, under certain circumstances, “the court may deny the [CPLR 3211] motion, allowing the moving party to assert the objection in his responsive pleading” ([emphasis added]). Likewise, CPLR 3211 (e) provides that, “[a]t any time before service of the responsive pleading is required, a party may move on one or more grounds set forth in [CPLR 3211 (a)].” It is clear from the language used throughout the CPLR that the Legislature did not intend a CPLR 3211 motion to be considered a “responsive pleading.”  Harris v Ward Greenberg Heller & Reidy LLP, 2017 NY Slip Op 04970, 4th Dept 6-16-17

CIVIL PROCEDURE (NOTICES OF DISCONTINUANCE FILED AFTER MOTIONS TO DISMISS WERE BROUGHT, BUT BEFORE RESPONSIVE PLEADINGS, WERE TIMELY)/DISCONTINUANCE, NOTICE OF (NOTICES OF DISCONTINUANCE FILED AFTER MOTIONS TO DISMISS WERE BROUGHT, BUT BEFORE RESPONSIVE PLEADINGS, WERE TIMELY)/DISMISS, MOTION TO (CIVIL PROCEDURE, NOTICES OF DISCONTINUANCE FILED AFTER MOTIONS TO DISMISS WERE BROUGHT, BUT BEFORE RESPONSIVE PLEADINGS, WERE TIMELY)/RESPONSIVE PLEADINGS (CIVIL PROCEDURE, NOTICES OF DISCONTINUANCE FILED AFTER MOTIONS TO DISMISS WERE BROUGHT, BUT BEFORE RESPONSIVE PLEADINGS, WERE TIMELY)

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