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SUPREME COURT DID NOT CITE ANY “EXTRAORDINARY CIRCUMSTANCES” TO JUSTIFY ITS SUA-SPONTE DISMISSAL OF THE COMPLAINT IN THIS DIVORCE ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this divorce action, determined there was no demonstration of “extraordinary circumstances” to justify Supreme Court’s sua sponte dismissal of the complaint:

“A court’s power to dismiss a [complaint], sua sponte, is to be used sparingly, and only when extraordinary circumstances exist to warrant dismissal” … . Here, the Supreme Court did not identify any extraordinary circumstances warranting sua sponte dismissal of the complaint … . The plaintiff moved, inter alia, to consolidate custody and family offense proceedings that were pending in the Family Court, Queens County, and the Family Court, Kings County, with the instant action. There was no motion to dismiss the complaint in its entirety or to change venue before the court … . Ivashchenko v Borukhov, 2024 NY Slip Op 02526, Second Dept 5-8-24

Practice Point: This decision illustrates the appellate-courts’ discomfort with sua sponte dismissals of complaints (dismissal in the absence of a motion requesting it).

 

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ALTHOUGH ONLY STEPHEN BOTT SIGNED THE NOTE, BOTH HE AND CHRISTINE BOTT SIGNED THE MORTGAGE; THEREFORE CHRISTINE BOTT WAS A “BORROWER” ENTITLED TO SEPARATE NOTICE OF THE FORECLOSURE PURSUANT TO RPAPL 1304; THE JOINT NOTICE WAS INVALID (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s failure to notify both borrowers of the foreclosure action violated RPAPL 1304 and required that defendants’ summary judgment motion be granted. Although only Stephen Bott signed the note, he and Christine Bott executed the mortgage instrument. Therefor the joint RPAPL 1304 notice was invalid:

Although Stephen Bott was the only signatory to the note, both he and Christine Bott executed the mortgage, and Christine Bott is identified as a borrower on the first page of the mortgage. “Where, as here, a homeowner defendant is referred to as a ‘borrower’ in the mortgage instrument and, in that capacity, agrees to pay amounts due under the note, that defendant is a ‘borrower’ for the purposes of RPAPL 1304, notwithstanding . . . any ambiguity created by a provision in the mortgage instrument to the effect that parties who did not sign the underlying note are not personally obligated to pay the sums secured” … . Therefore, Christine Bott was entitled to notice pursuant to RPAPL 1304 … . Since it is undisputed that a jointly addressed 90-day notice, rather than individually addressed notices in separate envelopes, was sent to the defendants, the plaintiff failed to comply with RPAPL 1304, and the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them … . HSBC Bank USA, N.A. v Bott, 2024 NY Slip Op 02524, Second Dept 5-8-24

Practice Point: A person obligated to pay the mortgage is a “borrower” within the meaning of RPAPL 1304 even if that person did not sign the note. Each “borrower” is entitled to separate notice of the foreclosure. Here, the joint notice was invalid and defendant-borrowers’ motion for summary judgment should have been granted.

 

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PLAINTIFF’S DECEDENT COMMITTED SUICIDE BY JUMPING FROM A LEDGE OUTSIDE HIS HOTEL ROOM; HOTEL STAFF DID NOT ASSUME A DUTY OF CARE FOR PLAINTIFF’S DECEDENT; A DELAY AFTER A FAMILY MEMBER’S REQUEST THAT HOTEL STAFF CALL THE POLICE WAS NOT DEMONSTRATED BY EXPERT OPINION TO HAVE CAUSED THE SUICIDE (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Pitt-Burke, over an extensive dissenting opinion, determined the defendant hotel did not assume a duty of care for a hotel guest who committed suicide and did not proximately cause plaintiff-decedent’s suicide. Hotel staff had been made aware of decedent’s family’s fear that decedent, who was in a room at the hotel, was suicidal. Hotel staff checked on the decedent, who indicated he was “fine.” Subsequently a family member, who had been communicating with decedent, asked hotel staff to call the police. The crux of the lawsuit is the allegation that a delay in calling the police caused decedent to commit suicide. After breaking into decedent’s locked room, the police found decedent on a ledge outside the window and unsuccessfully tried to talk him back into the room:

An entity in control of a premises, “whether [it] be a landowner or a leaseholder, is not an insurer of the visitor’s safety” … . Absent a duty of care, there is no breach and no liability, regardless of how careless the conduct … . * * *

Plaintiffs … contend that defendants breached an assumed duty of care when they agreed to check on the decedent after being informed of his suicidal ideations and failed to act carefully or reasonably in contacting the police.

While “one who assumes a duty to act, even though gratuitously, may thereby become subject to the duty of acting carefully” … , a defendant can only be held “liable for a breach of an assumed duty where the plaintiff shows reliance on the defendant’s course of conduct, such that the defendant’s conduct placed him or her in a more vulnerable position than he or she would otherwise have been in had the defendant done nothing” … . * * *

… [T]he record on appeal clearly shows … that despite defendants’ delay in calling the police, a period of at least thirty minutes elapsed from the time the police entered the hotel and decedent jumped from the ledge in the police officer’s presence. Beadell v Eros Mgt. Reality, LLC, 2024 NY Slip Op 02496, First De[t 5-7-24

Practice Point: A landowner or leaseholder in control of a hotel is not an insurer of a hotel guest’s safety and does not owe a duty of care to hotel guests absent the assumption of a duty to act (not the case here where a hotel guest committed suicide).

Practice Point: The expert opinion evidence here fell short of demonstrating that hotel staff’s delay in calling the police at the request of decedent’s family was the proximate cause of plaintiff’s decedent’s suicide.

 

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THE FOURTH DEPARTMENT REJECTED SUPREME COURT’S RULING THAT THE ARBITRATOR “MANIFESTLY DISREGARDED SUBSTANTIVE LAW” AND THAT THE ARBITRATION AWARD WAS “IRRATIONAL,” EXPLAINING THE CRITERIA FOR BOTH (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that none of Supreme Court’s grounds for vacating the arbitration award were valid. The arbitrator did not “manifestly disregard the substantive law.” The award was not “irrational.” The Fourth Department explained the criteria for both:

… [T]he court determined that the arbitrator manifestly disregarded “substantive law” applicable to the parties’ dispute when the arbitrator distinguished, rather than applied, two prior arbitration awards that petitioner and the court read as favorable to petitioner’s position on the timeliness issue. That was error. “The effect, if any, to be given to an earlier arbitration award in subsequent arbitration proceedings is a matter for determination in that forum” … . Neither petitioner nor the court identified any “substantive law applicable to the parties’ dispute” to support application of the doctrine of manifest disregard of law … . In any event, even if the two prior arbitration awards constituted substantive law, inasmuch as the record establishes that the arbitrator considered, but distinguished, those arbitration awards, we conclude that petitioner failed to establish that the arbitrator “knew of a governing legal principle” that was “well defined, explicit, and clearly applicable to the case” and “yet refused to apply it or ignored it altogether … .* * *

“An award is irrational if there is no proof whatever to justify the award” … . Where, however, “an arbitrator offer[s] even a barely colorable justification for the outcome reached, the arbitration award must be upheld” … .

Here, the arbitrator issued a thoughtful, well-reasoned opinion and award in which he considered the terms of the CBA [collective bargaining agreement], the evidence adduced at the hearing, and prior arbitration awards, and we thus conclude that “[i]t cannot be said that the arbitrator’s procedural resolution of the issue concerning compliance with the contractual requirement that the demand for arbitration be made within a specified time . . . was irrational” … . Matter of Buffalo Teachers’ Fedn. (Board of Educ. of Buffalo City Sch. Dist.), 2024 NY Slip Op 02429, Fourth Dept 5-3-24

Practice Point: Read this decision to understand how limited the court’s role is when reviewing an arbitration award.

 

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FAILURE TO INFORM DEFENDANT A FINE IS PART OF THE SENTENCE RENDERED THE GUILTY PLEA INVOLUNTARY (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined the failure to inform defendant that a fine was part of the sentence rendered the plea involuntary:

“[I]n order for a plea to be knowingly, voluntarily and intelligently entered, a defendant must be advised of the direct consequences of that plea” … . “The direct consequences of a plea—those whose omission from a plea colloquy makes the plea per se invalid—are essentially the core components of a defendant’s sentence: a term of probation or imprisonment, a term of postrelease supervision, a fine” … , and the failure to advise a defendant at the time of the guilty plea of a direct consequence of that plea “requires that [the] plea be vacated” … . Here, the court failed to advise defendant that the sentence imposed on a person convicted of aggravated unlicensed operation of a motor vehicle in the first degree must include a fine in an amount between $500 and $5,000 (see Vehicle and Traffic Law § 511 [3] [b] [i]). People v Carmichael, 2024 NY Slip Op 02427, Fourth Dept 5-3-24

Practice Point: A judge’s failure to inform the defendant that a fine is part of the sentence renders the guilty plea involuntary.

 

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THE DOCTRINE OF MERGER CAN BE APPLIED TO DISMISS A KIDNAPPING CHARGE EVEN IF THE LESSER OFFENSE IS NOT CHARGED (FOURTH DEPT).

The Fourth Department remitted the matter for consideration of the People’s remaining objection to applying the merger doctrine to the kidnapping charge. County Court had erroneously ruled the merger doctrine could not be applied to dismiss the kidnapping charge unless the lesser offense is also charged:

… [D]efendant contends that the court erred in denying that part of his omnibus motion seeking to dismiss the charge of kidnapping in the second degree pursuant to the merger doctrine. The kidnapping merger doctrine is a judicially-created doctrine intended to prevent overcharging and “to prohibit a conviction for kidnapping based on acts which are so much the part of another substantive crime that the substantive crime could not have been committed without such acts and independent criminal responsibility for kidnapping may not fairly be attributed to the accused” … . A kidnapping charge “is generally deemed to merge with another offense only where there is minimal asportation immediately preceding the other crime or where the restraint and underlying crime are essentially simultaneous” … . Even if that is so, however, there is no merger where “the manner of detention is egregious” … . We agree with defendant that the court erred in concluding that the merger doctrine did not apply because defendant was charged only with kidnapping and, therefore, there was no other crime with which the count could merge.

… [D]efendant correctly contends that he had committed acts that would have supported a conviction for menacing and, therefore, the merger doctrine was applicable whether he was charged with the lesser offense or not … . * * *

Inasmuch as the court did not rule on the People’s alternative argument—i.e., that the merger doctrine did not apply because any alleged menacing of the victim was incidental to the kidnapping—we may not affirm the decision on that ground … . We therefore … reserve decision, and remit the matter to County Court for a ruling on the motion in accordance with this memorandum … . People v Almonte, 2024 NY Slip Op 02426, Fourth Dept 5-3-24

Practice Point: The doctrine of merger can be applied to dismiss a kidnapping charge even if the lesser offense is not charged.

 

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PLAINTIFF WAS INJURED USING DEFENDANT’S BOW; DEFENDANT MOVED FOR PERMISSION TO PERFORM TESTS ON THE BOW WHICH INVOLVED REMOVING AND THEN REPLACING THE DAMAGED COMPONENT OF THE BOW; THE JUSTIFICATION FOR SUCH TESTING WAS NOT DEMONSTRATED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant bow manufacturer (PSE) was not entitled to testing of the bow beyond the visual inspection already done. Plaintiff was struck in the eye when using the bow. Defendant moved for permission to replace the damaged component of the bow, test the bow, and then replace the damaged component. Supreme Court had granted the motion:

A party “seeking to conduct destructive testing should provide a reasonably specific justification for such testing including, inter alia, the basis for its belief that nondestructive testing is inadequate and that destructive testing is necessary; further, there should be an enumeration and description of the precise tests to be performed, including the extent to which each such test will alter or destroy the item being tested” … . Even assuming, arguendo, that the additional testing proposed by PSE is non-destructive, we conclude that PSE failed to establish in the first instance that the additional testing is “material and necessary” to its defense of the action (CPLR 3101 [a] …). PSE’s expert made only a conclusory statement that re-stringing the bow with an undamaged component “should better represent the condition it was in prior to the” accident … . Therefore, even in the absence of an abuse of the court’s discretion, we substitute our own discretion for that of the motion court and deny the motion … . Roche v Precision Shooting Equip., Inc., 2024 NY Slip Op 02419, Fourth Dept 5-3-24

Practice Point: There are standards which must be met in a products liability case before a court will allow testing, either nondestructive of destructive testing, of the product. Those standards were not met by the motion papers in this case.

 

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THE MARIJUANA FELONY CONVICTION WHICH WAS THE BASIS FOR DEFENDANT’S SECOND FELONY OFFENDER STATUS WAS BASED ON A STATUTE WHICH HAS SINCE BEEN REPEALED AND REPLACED WITH A MISDEMEANOR; DEFENDANT WAS ENTITLED TO RESENTENCING AS A FIRST-TIME FELONY OFFENDER (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Bannister, determined defendant, who had been sentenced as a second felony offender, was entitled to resentencing as a first-time felony offender because his 2013 marijuana-felony conviction was based upon a statute which had been repealed and replaced by a misdemeanor:

MRTA [Marihuana Regulation and Taxation Act] provides a procedural mechanism for a person, such as defendant, who has completed serving a sentence for a conviction under Penal Law former article 221 to petition the court of conviction for vacatur of that conviction where … the person would have been guilty of a lesser or potentially less onerous offense under [the new]  article 222 than under former article 221 … . … Defendant successfully moved to vacate his January 2013 felony conviction, and Supreme Court … replaced that conviction with a conviction under Penal Law § 222.30.

… [D]efendant moved pursuant to CPL 440.20 to vacate the sentence imposed for his 2019 conviction. He contended that the vacatur of his prior felony marihuana conviction invalidated the enhanced sentence imposed for his 2019 conviction, which was based on the prior felony conviction. … Supreme Court … granted defendant’s motion to set aside the sentence for his 2019 conviction and resentenced him as a first felony offender to 3½ years in prison and 3½ years of postrelease supervision. * * *

… [W]e conclude that one of the “purposes” … served in substituting the misdemeanor for the felony conviction is to allow for the retroactive amelioration of a predicate felony sentence. People v Parker, 2024 NY Slip Op 02414, Fourth Deptp 5-3-24

Practice Point: Here defendant’s second felony offender status was based on a marijuana statute which has since been repealed and replaced with a misdemeanor. Defendant was entitled to resentencing as a first-time felony offender.

 

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HERE THE PEOPLE REQUESTED AN ADJOURNMENT OF THE HUNTLEY HEARING BUT THE RECORD IS SILENT ABOUT THE LENGTH OF THE REQUESTED ADJOURNMENT; THEREFORE THE ENTIRE TIME BETWEEN THE REQUEST AND THE HEARING WAS COUNTED AGAINST THE PEOPLE FOR “SPEEDY TRIAL” PURPOSES (FOURTH DEPT).

The Fourth Department, granting the speedy trial motion and dismissing the indictment, determined that the record did not indicate the length of an adjournment of the Huntley hearing requested by the People and, therefore, the entire time between the request and the hearing was chargeable to the People:

“Normally, the People will be charged only with the actual period of adjournment requested, following their initial statement of readiness; any additional period of delay, for the convenience of the court’s calendar, will be excludable” … . The People, however, “bear the burden of ensuring that the record explains the cause of adjournments sufficiently for the court to determine which party should properly be charged with any delay” … . Here, there is no explanation as to the reason for the requested adjournment in the record, and there is no indication on the record of the length of the adjournment the People were requesting. Thus, the entire period is chargeable to the People … . Furthermore, the adjournment is not excludable inasmuch as defendant did not expressly consent to the adjournment … . People v Bish, 2024 NY Slip Op 02409, Fourth Dept 5-3-24

Practice Point: If the People request an adjournment of a hearing but the record is silent about the length of the requested adjournment, the entire time between the request and the hearing may be chargeable to the People.

 

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