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INSURER DID NOT DEMONSTRATE REQUIREMENTS FOR DISCLAIMER BASED UPON THE INSURED’S NONCOOPERATION.

The Second Department determined the insurer (Global) did not demonstrate it was entitled to disclaim coverage based upon the noncooperation of the insured:

“An insurer who seeks to disclaim coverage on the ground of noncooperation is required to demonstrate that (1) it acted diligently in seeking to bring about the insured’s cooperation, (2) its efforts were reasonably calculated to obtain the insured’s cooperation, and (3) the attitude of the insured, after its cooperation was sought, was one of willful and avowed obstruction” … . “[M]ere efforts by the insurer and mere inaction on the part of the insured, without more, are insufficient to establish non-cooperation as the inference of non-cooperation must be practically compelling'” … .

Here, Global established that it made diligent efforts that were reasonably calculated to obtain the cooperation of BMC and Abduahadov … . However, Global failed to demonstrate that the conduct of BMC and Abduahadov constituted “willful and avowed obstruction” … . Matter of Government Empls. Ins. Co. v Fletcher, 2017 NY Slip Op 01199, 2nd Dept 2-15-17

 

INSURANCE LAW (INSURER DID NOT DEMONSTRATE REQUIREMENTS FOR DISCLAIMER BASED UPON THE INSURED’S NONCOOPERATION)/DISCLAIMER (INSURANCE LAW, INSURER DID NOT DEMONSTRATE REQUIREMENTS FOR DISCLAIMER BASED UPON THE INSURED’S NONCOOPERATION)/NONCOOPERATION (INSURANCE LAW, DISCLAIMER, INSURER DID NOT DEMONSTRATE REQUIREMENTS FOR DISCLAIMER BASED UPON THE INSURED’S NONCOOPERATION

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BANK EMPLOYEE’S AFFIDAVIT DID NOT DEMONSTRATE 90 DAY NOTICE WAS PROPERLY SERVED.

The Second Department determined plaintiff bank did not demonstrate compliance with Real Property Actions and Proceedings Law (RPAPL) 1304 in serving the 90-day notice. The documents submitted by plaintiff’s employee (Gantner) did not meet the requirements of the business records exception to the hearsay rule:

Here, the plaintiff failed to submit an affidavit of service … or proof of mailing by the post office, evincing that it properly served the defendant pursuant to RPAPL 1304. Contrary to the plaintiff’s contention, Gantner’s affidavit and attached business records were not sufficient to establish that the notices were sent to the defendant in the manner required by RPAPL 1304. While mailing may be proven by documents meeting the requirements of the business records exception to the rule against hearsay under CPLR 4518 … , here, Gantner did not aver that he was familiar with the plaintiff’s mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed … . Therefore, Gantner’s unsubstantiated and conclusory statements were insufficient to establish that the 90-day notice required by RPAPL 1304 was mailed to the defendant by first-class and certified mail … . CitiMortgage, Inc. v Pappas, 2017 NY Slip Op 01177. 2nd Dept 2-15-17

FORECLOSURE (BANK EMPLOYEE’S AFFIDAVIT DID NOT DEMONSTRATE 90 DAY NOTICE WAS PROPERLY SERVED)/EVIDENCE (FORECLOSURE, BANK EMPLOYEE’S AFFIDAVIT DID NOT DEMONSTRATE 90 DAY NOTICE WAS PROPERLY SERVED)

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FAMILY COURT SHOULD HAVE MADE FINDINGS TO ALLOW JUVENILE TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS.

The Second Department determined Family Court should have granted the motion for findings to allow a juvenile to petition for special immigrant juvenile state (SIJS):

Based upon our independent factual review, we find that the record fully supports the petitioner’s contention that, because the child’s mother neglected him, reunification with the mother is not a viable option … . Contrary to the Family Court’s determination, the record demonstrated that the physical, mental, or emotional condition of the child had been impaired or was in imminent danger of becoming impaired as a result of the failure of the mother to exercise a minimum degree of care “in supplying the child with adequate food, clothing, shelter or education . . . though financially able to do so or offered financial or other reasonable means to do so” … . Indeed, the petitioner’s testimony at the hearing demonstrated that although the mother received financial assistance to provide for the child’s clothing and education, the mother failed to use such assistance for the child’s benefit. The child’s testimony corroborated the petitioner’s testimony in this respect.

Accordingly, the Family Court should have granted the petitioner’s motion for the issuance of an order making the requisite declaration and specific findings so as to enable the child to petition for SIJS. Matter of Wilson A.T.Z. (Jose M.T.G.–Manuela Z.M.), 2017 NY Slip Op 01215, 2nd Dept 2-15-17

 

FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD HAVE MADE FINDINGS TO ALLOW JUVENILE TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)/IMMIGRATION LAW (SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD HAVE MADE FINDINGS TO ALLOW JUVENILE TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) ( FAMILY COURT SHOULD HAVE MADE FINDINGS TO ALLOW JUVENILE TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS)

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CHILD SHOULD NOT HAVE BEEN REMOVED FROM FATHER’S CARE, EVEN THOUGH CHILD HAS BEEN RETURNED, APPEAL NOT MOOT BECAUSE OF THE STIGMA OF REMOVAL.

The Second Department, reversing Family Court, determined the removal application should not have been granted and father’s appeal of the removal was not moot, even though the child had been returned to the father:

Although it is undisputed that the child has been returned to the father’s care, the father’s appeals are not academic. The child’s removal created a permanent and significant stigma … .

“In determining a removal application pursuant to Family Court Act § 1027, the court must engage in a balancing test of the imminent risk with the best interests of the child and, where appropriate, the reasonable efforts made to avoid removal or continuing removal'” … . Here, the petitioner failed to establish that the child would be subjected to imminent risk if she were not placed in the custody of the petitioner pending the outcome of the neglect proceeding. Under the circumstances of this case, concerns about, inter alia, the adequacy of the father’s plan to care for the child did not amount to an imminent risk to the child’s life or health that could not be mitigated by reasonable efforts to avoid removal. Matter of Emmanuela B. (Jean E.B.), 2017 NY Slip Op 01195, 2nd Dept 2-15-17

 

FAMILY LAW (NEGLECT, REMOVAL, CHILD SHOULD NOT HAVE BEEN REMOVED FROM FATHER’S CARE, EVEN THOUGH CHILD HAS BEEN RETURNED, APPEAL NOT MOOT BECAUSE OF THE STIGMA OF REMOVAL)/APPEALS (FAMILY LAW, CHILD SHOULD NOT HAVE BEEN REMOVED FROM FATHER’S CARE, EVEN THOUGH CHILD HAS BEEN RETURNED, APPEAL NOT MOOT BECAUSE OF THE STIGMA OF REMOVAL)/NEGLECT (CHILD SHOULD NOT HAVE BEEN REMOVED FROM FATHER’S CARE, EVEN THOUGH CHILD HAS BEEN RETURNED, APPEAL NOT MOOT BECAUSE OF THE STIGMA OF REMOVAL)/REMOVAL (CHILD NEGLECT, FAMILY LAW, CHILD SHOULD NOT HAVE BEEN REMOVED FROM FATHER’S CARE, EVEN THOUGH CHILD HAS BEEN RETURNED, APPEAL NOT MOOT BECAUSE OF THE STIGMA OF REMOVAL)

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FAMILY COURT COULD NOT ALLOW VISITATION WHILE A CRIMINAL ORDER OF PROTECTION IS IN PLACE.

The Second Department determined that Family Court properly denied mother’s motion for kinship visitation because a criminal court order of protection was in place:

As a general rule, the “Family Court does not have jurisdiction to countermand the provisions of a criminal court order of protection” … . Thus, where a criminal court order of protection bars contact between a parent and child, the parent may not obtain visitation until the order of protection is vacated or modified by the criminal court … . However, the criminal court has authority to determine whether its order of protection is “subject to” subsequent Family Court orders, and where the criminal court order of protection “expressly contemplates future amendment of its terms by a subsequent Family Court order pertaining to custody and visitation,” the Family Court is not precluded from granting custody or visitation by the terms of the order of protection … . Here, since the Supreme Court’s temporary order of protection dated April 1, 2016, did not state that it was “subject to” subsequent Family Court orders, the Family Court had no basis to permit “kinship visitation” supervised by the maternal grandmother. Matter of Rihana J.H. (Quianna J.), 2017 NY Slip Op 01202, 2nd Dept 2-15-17

FAMILY LAW (FAMILY COURT COULD NOT ALLOW VISITATION WHILE A CRIMINAL ORDER OF PROTECTION IS IN PLACE)/VISITATION (FAMILY LAW, FAMILY COURT COULD NOT ALLOW VISITATION WHILE A CRIMINAL ORDER OF PROTECTION IS IN PLACE)/CRIMINAL LAW (FAMILY LAW, ORDER OF PROTECTION, FAMILY COURT COULD NOT ALLOW VISITATION WHILE A CRIMINAL ORDER OF PROTECTION IS IN PLACE)/ORDER OF PROTECTION (FAMILY LAW,  FAMILY COURT COULD NOT ALLOW VISITATION WHILE A CRIMINAL ORDER OF PROTECTION IS IN PLACE)

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FATHER SHOULD NOT HAVE BEEN AWARDED SOLE CUSTODY IN THE ABSENCE OF A HEARING.

The Second Department, reversing Supreme Court, determined father should not have been awarded sole custody without a hearing:

The Supreme Court erred in awarding the father sole custody of the child in the absence of a hearing to determine the best interests of the child. “[A] court opting to forgo a plenary hearing must take care to clearly articulate which factors were—or were not—material to its determination, and the evidence supporting its decision” … . The court failed to do so here. Furthermore, the issue of custody was not discussed at the … court appearances that resulted in the issuance of the final order of custody and visitation. Under these circumstances, the mother’s motion to vacate the final order of custody and visitation … , should have been granted. Matter of Fraser v Fleary, 2017 NY Slip Op 01197, 2nd Dept 2-15-17

FAMILY LAW (FATHER SHOULD NOT HAVE BEEN AWARDED SOLE CUSTODY IN THE ABSENCE OF A HEARING)/CUSTODY (FAMILY LAW, FATHER SHOULD NOT HAVE BEEN AWARDED SOLE CUSTODY IN THE ABSENCE OF A HEARING)

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WIFE ENTITLED TO SHARE OF HUSBAND’S SEPARATE PROPERTY WHICH WAS COMMINGLED WITH MARITAL FUNDS, WIFE ALSO ENTITLED TO SHARE OF APPRECIATION OF HUSBAND’S SEPARATE PROPERTY.

The Second Department determined plaintiff wife was entitled to a share of husband’s separate property that was commingled with marital funds, as well as a share of the appreciation of husband’s separate property. Husband, a firefighter, received an award from the September 11th Victim Compensation Fund, which was placed in a joint checking account and then used to buy investment property:

… [S]eparate property that is commingled, for example, in a joint bank account, loses its character of separateness and a presumption arises that each party is entitled to a share of the funds … . “That presumption, however, may be overcome by clear and convincing evidence, either direct or circumstantial, that the account was created only as a matter of convenience” … . The presumption may also be overcome by evidence that the account, although joint, is managed solely by one party … , or that the funds were deposited into the joint account only briefly … . In this case, the Supreme Court correctly determined that by depositing the proceeds of the award into the parties’ joint account, the defendant’s separate property lost its character of separateness and a presumption arose that each party was entitled to a share of the funds, which was not rebutted. …

The record supports the Supreme Court’s determination that the direct and indirect contributions of the plaintiff, as the nontitled spouse, contributed to the appreciation in the value of the defendant’s separate properties. Therefore, the plaintiff was entitled to a share of that appreciation … . Brown v Brown, 2017 NY Slip Op 01175, 2nd Dept 2-15-17

 

FAMILY LAW (WIFE ENTITLED TO SHARE OF HUSBAND’S SEPARATE PROPERTY WHICH WAS COMMINGLED WITH MARITAL FUNDS, WIFE ALSO ENTITLED TO SHARE OF APPRECIATION OF HUSBAND’S SEPARATE PROPERTY)/SEPARATE PROPERTY (FAMILY LAW, (WIFE ENTITLED TO SHARE OF HUSBAND’S SEPARATE PROPERTY WHICH WAS COMMINGLED WITH MARITAL FUNDS, WIFE ALSO ENTITLED TO SHARE OF APPRECIATION OF HUSBAND’S SEPARATE PROPERTY)/MARITAL PROPERTY (WIFE ENTITLED TO SHARE OF HUSBAND’S SEPARATE PROPERTY WHICH WAS COMMINGLED WITH MARITAL FUNDS, WIFE ALSO ENTITLED TO SHARE OF APPRECIATION OF HUSBAND’S SEPARATE PROPERTY)

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FAILURE TO CHARGE THE JURY ON LESSER INCLUDED OFFENSES REQUIRED REVERSAL.

The Second Department, reversing defendant’s conviction, determined the facts elicited at this murder trial, viewed in the light most favorable to the defendant, warranted charges to the jury on manslaughter second and criminally negligent homicide. Because the possession of a weapon charge was directly related to the homicide charge, a new trial on the criminal possession of a weapon count was also necessary:

Under the facts adduced at the trial, the Supreme Court erred in failing to charge manslaughter in the second degree … and criminally negligent homicide … when requested by the defendant. Although a witness testified that, in the course of a physical altercation, the defendant pulled a gun from his back waist area and shot the decedent, the defendant testified that the decedent brandished the gun, that the two men struggled over the weapon, and that the gun accidentally went off during the struggle. Viewed in the light most favorable to the defendant, there was a reasonable view of the evidence that the defendant may have been guilty of the lesser crimes and not the greater … . Therefore, the failure to charge manslaughter in the second degree and criminally negligent homicide compromised the defendant’s right to a fair trial.

In addition, the failure to charge manslaughter in the second degree, which is defined as “recklessly” causing the death of another person …, had a prejudicial effect with respect to the defendant’s conviction of criminal possession of a weapon in the second degree, which is defined as possession of “any loaded firearm” … . The defendant’s possession of the weapon is factually related to the shooting and, thus, given the underlying factual relationship between the crimes, the defendant is entitled to a new trial on the count of criminal possession of a weapon in the second degree … . People v Davis, 2017 NY Slip Op 01223, 2nd Dept 2-15-17

 

CRIMINAL LAW (FAILURE TO CHARGE THE JURY ON LESSER INCLUDED OFFENSES REQUIRED REVERSAL)/LESSER INCLUDED OFFENSES (CRIMINAL LAW, FAILURE TO CHARGE THE JURY ON LESSER INCLUDED OFFENSES REQUIRED REVERSAL)/JURY INSTRUCTIONS (CRIMINAL LAW, FAILURE TO CHARGE THE JURY ON LESSER INCLUDED OFFENSES REQUIRED REVERSAL)

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DEFENDANT GIVEN OPPORTUNITY TO MOVE TO VACATE GUILTY PLEA ON GROUND HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES.

The Second Department determined defendant should be given the opportunity to move to vacate his guilty plea on the ground he was not informed of the deportation consequences:

The defendant contends that his plea of guilty was not knowing, voluntary, and intelligent because the record demonstrates that the Supreme Court never advised him of the possibility that he would be deported as a consequence of his plea. In People v Peque (22 NY3d 168), the Court of Appeals held that, as a matter of fundamental fairness, due process requires that a court apprise a noncitizen pleading guilty to a felony of the possibility of deportation as a consequence of the plea of guilty … . A defendant seeking to vacate a plea based on this defect must demonstrate that there is a reasonable probability that he or she would not have pleaded guilty and would instead have gone to trial had the court warned of the possibility of deportation … .

Here, the record does not demonstrate that the Supreme Court mentioned the possibility of deportation as a consequence of the defendant’s plea. People v Singh, 2017 NY Slip Op 01235, 2nd Dept 2-15-17

 

CRIMINAL LAW (DEFENDANT GIVEN OPPORTUNITY TO MOVE TO VACATE GUILTY PLEA ON GROUND HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES)/DEPORTATION (CRIMINAL LAW, DEFENDANT GIVEN OPPORTUNITY TO MOVE TO VACATE GUILTY PLEA ON GROUND HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES)

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FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS IN THIS MEDICAL MALPRACTICE ACTION.

The Second Department, reversing Supreme Court, over a partial dissent, determined defendants’ answers in this medical malpractice action should have been struck because of the failure to turn over the names of defendants’ employees and failure to obey court orders during discovery:

The Supreme Court properly inferred the willful and contumacious character of the defendants’ conduct from their repeated failures over an extended period of time, without an adequate excuse, to comply with the plaintiff’s discovery demands and the court’s discovery orders … . This conduct included: (1) misrepresenting that the surgical booker Marcia Barnaby was no longer employed by the Hospital; (2) failing to disclose Anthony Pastor as a surgical booker; and (3) failing to timely and fully comply with the court’s order to produce an affidavit from Schiff in the form required by the court. “[P]arties, where necessary, will be held responsible for the failure of their lawyers to meet court-ordered deadlines and provide meaningful responses to discovery demands” … . * * *

Here, contrary to the Supreme Court’s determination, we find that the imposition of monetary sanctions was insufficient to punish the defendants and their counsel for their willful and contumacious conduct in failing to timely and fully respond to discovery demands and court orders. Lucas v Stam, 2017 NY Slip Op 01190, 2nd Dept 2-15-17

 

CIVIL PROCEDURE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/NEGLIGENCE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/ATTORNEYS (NEGLIGENCE, DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/MEDICAL MALPRACTICE (DISCOVERY, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)/DISCOVERY (MEDICAL MALPRACTICE, FAILURE TO RESPOND TO DISCOVERY DEMANDS AND OBEY COURT ORDERS WARRANTED STRIKING DEFENDANTS’ ANSWERS)

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