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DEFENDANT WAS ENTITLED TO NOTICE COUNTY COURT INTENDED TO RELY ON FAMILY COURT RECORDS WHEN CONSIDERING DEFENDANT’S APPLICATION FOR RECLASSIFICATION AS A LEVEL-ONE SEX OFFENDER; THE THIRD DEPARTMENT NOTED THAT THE PROPER INQUIRY IS WHETHER RECLASSIFICATION IS WARRANTED BY A CHANGE IN CONDITIONS, NOT WHETHER THERE IS SUPPORT FOR THE INITIAL LEVEL-TWO CLASSIFICATION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to be notified of County Court’s intention to rely on Family Court records in considering defendant’s application to be reclassified as a level one sex offender. The matter was remitted for a new hearing:

Upon his release from incarceration in 2003, defendant was classified as a risk level two sex offender and designated a sexually violent offender. In 2020, defendant applied, for the fifth time, for a modification of his risk level classification pursuant to Correction Law § 168-o (2), seeking to be reclassified as a risk level one sex offender as his conditions have changed subsequent to the initial risk level classification given, among other things, that he has remained arrest free, successfully completed sex offender treatment while incarcerated and gained custody of his daughter, which helped him understand the impact of his underlying criminal actions. * * *

In discrediting defendant’s sworn statements in support of his application and in finding his statements to be misleading, County Court relied heavily upon various Family Court proceedings, including neglect proceedings as far back as 2012, and a family offense petition containing allegations against defendant [*2]that were subsequently withdrawn. The court detailed the allegations in the petitions, finding that the allegations contradicted defendant’s sworn statements in his application and that, by excluding such information from his sworn affidavit, defendant attempted to mislead the court. Defendant was not given an opportunity to respond to or defend himself against consideration of such information. * * *

… Contrary to County Court’s finding here, the proper level of review is not whether there is clear and convincing evidence to support defendant’s initial risk level classification, but rather, whether defendant has met his burden of establishing by clear and convincing evidence that a modification of his risk assessment level is warranted based upon a change in conditions. People v Johns, 2024 NY Slip Op 04640, Third Dept 9-26-24

Practice Point: In a SORA risk-level assessment proceeding, a defendant is entitled to timely notice of the court’s intention to rely on additional information of which defendant had not been made aware, here Family Court records.

Practice Point: When a defendant applies for reclassification of his sex offender risk level status (here from level two to level one), the court’s inquiry should be confined to whether a change in conditions warrants reclassification, not whether the original classification was justified.

 

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COUNTY COURT, SUA SPONTE, IN GRANTING THE PEOPLE’S REQUEST FOR AN UPWARD DEPARTURE, RELIED ON FACTORS ABOUT WHICH THE DEFENDANT WAS NOT NOTIFIED BEFORE THE SORA HEARING; MATTER REMITTED FOR A NEW HEARING AFTER PROPER NOTICE (THIRD DEPT).

The Third Department, reversing County Court, determined the SORA court should not have, sua sponte, relied on factors for which defendant was not provided notice in granting the People’s request for an upward department. The matter was remitted:

County Court sua sponte relied upon certain additional factors for which defendant was not provided any notice — namely, that the points assessed under factor 4 did not adequately account for defendant’s prolonged course of conduct that continued over 21 months; that defendant was not scored any points under factor 7, which did not take into account defendant’s relationship with the mother of the victim that was arguably established or promoted for the primary purpose of victimizing the mother’s child; and that defendant’s psychiatric conditions and history increase his risk of reoffending.

With regard to these three additional areas of concern noted by County Court, “defendant was entitled to a sufficient opportunity to consider and muster evidence in opposition to the request for an upward departure” on the specific bases upon which County Court would rely in considering that relief … . “As defendant did not have notice or a fair opportunity to present arguments and evidence pertaining to those factors in the context of whether upward departure from the presumptive classification was warranted, the matter must be remanded for a new hearing, upon proper notice to defendant of the justifications relied upon by the People [and/or court] specific to their request for such relief” … . People v Furgeson, 2024 NY Slip Op 04644, Third Dept 9-26-24

Practice Point: A defendant is entitled to prior notice of the factors which will be considered by the court during a SORA risk-level assessment proceeding.​

 

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A DEFENDANT, AS PART OF A NEGOTIATED PLEA AGREEMENT, MAY WAIVE A HEARING SEEKING A REDUCED SENTENCE PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dowling, affirming defendant’s sentence after a guilty plea, determined that a hearing pursuant to the Domestic Violence Survivors Justice Act (DVSJA) seeking a reduced sentence can be waived. Therefore defendant’s negotiated plea agreement, which required her waiver of a DVSLA hearing, was valid:

… Penal Law § 60.12 contains no language requiring a sentencing court to hold a DVSJA hearing in every case containing allegations that the defendant is a victim of domestic violence, regardless of whether a hearing was requested, prior to announcing sentence. A defendant wishing to avail himself or herself of the possibility of a reduced sentence must instead request a DVSJA hearing to determine his or her eligibility before the sentencing court … . Where a DVSJA hearing is held, Penal Law § 60.12 provides that the court “may” apply the alternative sentencing scheme if the stated factors are established by the defendant. This permissive language reflects the Legislature’s intent that sentencing under Penal Law § 60.12 be an option exercised in the sentencing court’s discretion … . People v Hudson, 2024 NY Slip Op 04571, Second Dept 9-25-24

Practice Point: As part of a negotiated plea agreement, a defendant may waive a DVSJA reduced-sentence-eligibility hearing.

 

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A PRIVILEGE LOG WHICH IDENTIFIES WITHHELD DOCUMENTS BY CATEGORY INSTEAD OF INDIVIDUALLY VIOLATES CPLR 3122 (B) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants did not comply with the privilege-log requirements of CPLR 3122(b). The defendants did not identify each withheld document individually, instead identifying only categories of documents:

Pursuant to CPLR 3122(b), “[w]henever a person is required . . . to produce documents for inspection, and where such person withholds one or more documents that appear to be within the category of the documents required . . . to be produced, such person shall give notice to the party seeking the production and inspection of the documents that one or more such documents are being withheld. This notice shall indicate the legal ground for withholding each such document, and shall provide the following information as to each such document, unless the party withholding the document states that divulgence of such information would cause disclosure of the allegedly privileged information: (1) the type of document; (2) the general subject matter of the document; (3) the date of the document; and (4) such other information as is sufficient to identify the document.”

Here, the defendants did not comply with the requirements of CPLR 3122(b), as their privilege log failed to individually identify each type of document being withheld, the general subject matter of each document, and the date of each document … . Contrary to the defendants’ contention, Rules of the Commercial Division of the Supreme Court (22 NYCRR 202.70 [g]) rule 11-b(b) does not authorize the defendants’ unilateral use of categorical designations in their privilege log, absent an agreement by the parties to employ a categorical approach or the issuance of a protective order … . Joseph v Rassi, 2024 NY Slip Op 04548, Second Dept 9-25-24

Practice Point: Absent an agreement or a court order, a privilege log which identifies withheld documents by category rather than individually violates CPLR 3122 (b).

 

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THE SHORTER LIMITATIONS PERIOD IN THE FIRE INSURANCE POLICY WAS NOT FAIR AND REASONABLE; THE MOTION TO DISMISS IN THIS BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in the fire-insurance breach of contract case, determined the contractual limitations period in the insurance policy was not fair and reasonable:

“Article 2 of the CPLR (‘Limitations of Time’), provides that ‘[a]n action . . . must be commenced within the time specified in this article unless . . . a shorter time is prescribed by written agreement'” … . “‘[A]n agreement which modifies the Statute of Limitations by specifying a shorter, but reasonable, period within which to commence an action is enforceable'” … . “‘[T]he period of time within which an action must be brought . . . should be fair and reasonable, in view of the circumstances of each particular case. . . . The circumstances, not the time, must be the determining factor'” … . “‘Absent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced'” … .

The Supreme Court should have denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the complaint. Contrary to the defendants’ contentions, the modified limitations period in the subject insurance policy was not fair and reasonable. The insurance policy provided that “[n]o action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss” and that “[w]e will pay no more than the actual cash value of the damage until actual repair or replacement is complete. Once actual repair or replacement is complete, we will settle the loss.” Here, the one-year limitation was unreasonable since the condition precedent, completion of actual repair or replacement, was not within the plaintiffs’ control and could not be met within that period … . “‘A “limitation period” that expires before suit can be brought is not really a limitation period at all, but simply a nullification of the claim'” … . Filasky v Andover Cos., 2024 NY Slip Op 04545, Second Dept 9-25-25

Practice Point: Parties can agree on shorter limitations periods. Here the limitations period in the subject fire insurance policy expired before suit could be brought rendering it unfair, unreasonable and unenforceable.

 

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THE PROPERTY IS OWNED BY AN LLC; ALTHOUGH THE PARTIES TO THE PARTITION ACTION ARE EQUAL MEMBERS OF THE LLC, MEMBERS HAVE NO INTEREST IN THE SPECIFIC PROPERTY OF AN LLC; THEREFORE THE PARTITION ACTION WAS NOT AVAILABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the partition action could not be maintained because the real property was owned by an LLC and not by tenants in common or a joint tenancy, despite the fact that the parties to the partition action were members of the LLC:

An action for the partition and sale of real property may be maintained by “[a] person holding and in possession of real property as joint tenant or tenant in common” (RPAPL 901[1]). The evidence submitted by the plaintiffs on their summary judgment motion established that, contrary to the allegations in the complaint, the property was owned exclusively by the LLC and not by Emerson, Kasan, and the defendant as tenants in common. Essentially, the plaintiffs contended that the three individual parties held equal membership interests in the LLC, which owned the property. “A membership interest in the limited liability company is personal property. A member has no interest in specific property of the limited liability company” (Limited Liability Company Law § 601). Thus, the individual parties hold no ownership interest in the property. Further, even assuming that the plaintiffs had established that the individual parties held equal membership interests in the LLC, there is no allegation or evidence that the LLC has been dissolved or that the LLC’s affairs have been properly wound up (see id. § 703). Accordingly, this action, inter alia, for partition and sale of the LLC’s property cannot be maintained … . 459 Wash. Ave., LLC v Atkins, 2024 NY Slip Op 04538, Second Dept 9-25-24

Practice Point: Although the partition action would have been available if the parties were joint tenants or tenants in common, it was not available because the property was owned by an LLC of which the parties were equal members. Members of an LLC have no interest in the specific property of the LLC.

 

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THE MOTION TO INTERVENE BY A PARTY WHICH PURCHASED THE PROPERTY IN FORECLOSURE SHOULD HAVE BEEN GRANTED; THE BANK DID NOT PROVE THE BORROWER’S DEFAULT BECAUSE THE RELEVANT BUSINESS RECORDS WERE NOT ATTACHED TO THE VICE PRESIDENT’S AFFIDAVIT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined (1) the motion to intervene by a party (the LLC) which had purchased the property subject to foreclosure should have been granted, (2) noncompliance with the notice requirement of RPAPL 1304 and 1306 and the mortgage agreement cannot be raised by the intervenor, a stranger to the note and mortgage, and (3) the bank did not prove the borrower’s default because the relevant business records were not attached to the bank’s affidavit:

…. [T]he LLC established that the representation of its interest by the parties would be inadequate, that the action involved the disposition of title to real property, and that it would be bound and adversely affected by a judgment of foreclosure and sale (see CPLR 1012[a][2], [3]; 6501 …). …[T]he fact that the LLC obtained its interest in the premises after the action was commenced and the notice of pendency was filed does not definitively bar intervention … . * * *

… [The bank] failed to provide evidence in admissible form of the borrower’s default in payment of the note … . In his affidavit submitted in support of U.S. Bank’s motion, Bennett [vice president of the bank’s servicer] averred that he was personally familiar with Rushmore’s record-keeping practices and that, based on his review of Rushmore’s business records, the borrower “defaulted under the terms of the loan documents by failing to make the monthly installment due on January 1, 2015 and has remained in default to the present date.” However, Bennett’s assertion regarding the borrower’s alleged default constituted inadmissible hearsay, as he failed to annex to his affidavit the business records on which he relied … . U.S. Bank N.A. v Medina, 2024 NY Slip Op 04588, Second Dept 9-25-24

Practice Point: Here the party which purchased the property in foreclosure should have been allowed to intervene.

Practice Point: In foreclosure proceedings affidavits which purport to describe the contents of business records which are not attached constitute inadmissible hearsay.

 

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OBJECTIVE MEASUREMENTS ARE NOT NECESSARY TO PROVE A SIDEWALK HEIGHT DIFFERENTIAL DEFECT IS TRIVIAL; HOWEVER, HERE THE DEPOSITION TESTIMONY, THE PHOTOGRAPHS AND THE OPINION OF A HUMAN FACTORS EXPERT (WHICH WAS NOT BASED ON OBJECTIVE MEASUREMENTS) DID NOT SUPPORT SUPREME COURT’S FINDING THE DEFECT IS TRIVIAL AS A MATTER OF LAW (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, reversing Supreme Court’s finding that the sidewalk defect was trivial as a matter of law, determined (1) objective measurements of a sidewalk defect in a slip and fall case are not required for a defendant to make out a prima facie case that the defect is trivial (2) photographs can be examined to determine triviality and (3) the opinion of a human factors expert about a sidewalk elevation differential is inadmissible if it is not based on an objective measurement or a “fairly inferable estimate of the differential:”

In this trip-and-fall case, the defendants moved for summary judgment dismissing the complaint on the ground that the alleged defect on which the injured plaintiff tripped was trivial as a matter of law and, thus, not actionable. In support of their motion, the defendants submitted photographs of the alleged defect, along with other evidence, but they did not submit an objective measurement of the dimensions of the alleged defect. On the plaintiffs’ appeal from the order granting the defendants’ motion, we address three specific questions relating to the trivial defect doctrine: (1) To establish, prima facie, that an alleged sidewalk defect was trivial as a matter of law and, thus, not actionable, must a defendant moving for summary judgment present an objective measurement of the alleged defect’s dimensions? (2) If not, how are courts to examine photographic evidence in order to determine whether the alleged defect is trivial? (3) Is the opinion of a human factors expert conclusory and speculative, and therefore inadmissible, if the opinion is not based upon objective measurements of the defect? For reasons set forth below, we hold that an objective measurement of a defect is not a per se requirement for a party to meet the prima facie burden of proving an entitlement to summary judgment. We use this occasion to discuss how photographs in such instances should be examined to render a determination on triviality. Further, we hold, as an issue of first impression, that the opinion of a human factors expert about an elevation differential is conclusory and inadmissible if it is not based upon an objective measurement or at least a fairly inferable estimate of the differential. * * *

In all, the defendants’ submissions, including the photographs, even when considered in combination with the deposition testimony and other evidence, did not support the Supreme Court’s conclusion of triviality as a matter of law … . Snyder v AFCO Avports Mgt., LLC, 2024 NY Slip Op 04584, Second Dept 9-25-24

​Practice Point: Consult this opinion for guidance on the proof required to find a sidewalk height differential trivial as a matter of law, including the role of objective measurements, interpretation of photographs and the sufficiency of a human-factors expert’s opinion.

 

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THE MAJORITY HELD DEFENDANT, BY APPROACHING A JUROR AT THE JUROR’S HOME DURING DELIBERATIONS, FORFEITED HIS RIGHT TO A TRIAL BY A JURY OF 12; OVER A DEFENSE MOTION FOR A MISTRIAL, DEFENDANT WAS CONVICTED BY A JURY OF 11 AND THE MAJORITY AFFIRMED; THERE WAS A STRONG DISSENT (SECOND DEPT).

The Second Department, in a comprehensive decision discussing a defendant’s constitutional right to a trial by a jury of 12, over a dissent, determined defendant had forfeited his right to a 12-member jury by approaching a juror at the juror’s home as deliberations were proceeding. Over a defense motion for a mistrial, the trial judge ordered the jury to continue deliberations with 11 jurors. Defendant was convicted:

From the dissent:

… I respectfully disagree with the conclusion of my colleagues in the majority that the defendant’s New York State constitutional rights were not violated upon permitting the jury to proceed with deliberation and conviction of the defendant by an 11-member jury.

… [T]he New York State Constitution specifically guarantees defendants a right to a jury of 12 (see NY Const, art I, § 2; art VI, § 18; …). New York Constitution, article I, § 2 describes the right to a trial by jury as “inviolate forever” and requires the waiver of a jury trial to be achieved by “written instrument signed by the defendant in person in open court before and with the approval of a judge or justice of a court having jurisdiction to try the offense.” … [T]he Court of Appeals has determined that a defendant may, upon a written waiver executed in the manner specified by the State Constitution, consent to a jury of 11 if a deliberating juror becomes incapacitated and no alternate juror is available … * * *

Here, there is no dispute that the defendant’s conduct was egregious and unacceptable. He feigned an illness so that he could approach a juror, at the juror’s home, clearly in an attempt to influence his trial. While the defendant should not be permitted to “tak[e] advantage of his . . . own wrongdoing” … , I believe it was error for the Supreme Court to utilize the “extreme, last-resort analysis” of denying the defendant his inviolate right to a jury of 12 before considering alternate sanctions for this egregious behavior … . People v Sargeant, 2024 NY Slip Op 04580, Second Dept 9-25-24

Practice Point: Here the defendant was deemed to have forfeited his right to a trial by a jury of 12 by approaching a juror at the juror’s home during deliberations. Defendant’s conviction by a jury of 11 was affirmed over a strong dissent.

 

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THE ARBITRATION RULING THAT THE CONTRACT WAS TERMINATED UNDER A “FRUSTRATION OF PURPOSE” THEORY PRECLUDED, UNDER THE DOCTRINE OF RES JUDICATA, ANY CONSIDERATION OF THE BREACH OF CONTRACT CAUSES OF ACTION THAT AROSE FROM THE SAME FACTS (FIRST DEPT).

The First Department, in a detailed full-fledged opinion by Justice Oing, determined the arbitration-ruling that a multi-million dollar contract for construction and operation of a liquid-natural-gas-related facility was terminated under a “frustration of purpose” theory precluded consideration of the breach of contract causes of action (res judicata). New technology for the extraction of natural gas from shale had rendered the liquid natural gas facility obsolete. The opinion is much too detailed to fairly summarize here. In simple terms, the arbitration ruling precluded the breach of contract causes of action under the doctrine of res judicata because all arose from the same facts:

Under the transactional analysis, the test is to determine whether a claim should be precluded by viewing a claim or cause of action as conterminous with the transaction, regardless of the number of substantive theories or variant forms of relief available to a litigant … . The analysis embraces a broadened view of the scope of a claim in order to limit the number of possible actions arising out of a single controversy … . The application of this test means that a final judgment on the merits of a claim or claims will bar future claims or causes of action arising from “all or any part of the transaction, or series of connected transactions, out of which the [prior] action arose” … . The question for us to resolve is whether the [breach of contract causes of action] arise from “all or any part of the transaction, or series of connected transactions” out of which the prior arbitration arose. We hold they do. Gulf LNG Energy, LLC v Eni S.p.A., 2024 NY Slip Op 04517, First Dept 9-24-24

Practice Point: Here an arbitration ruling that the contract was terminated for “frustration of purpose” precluded, under the doctrine of res judicata, any consideration of the breach of contract causes of action that arose from the same facts.

 

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