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Counsel’s Expressed Objections to His Client’s Motion to Withdraw His Guilty Plea Required the Assignment of New Counsel

The Second Department determined defendant should have been assigned a different attorney after his attorney expressed objections to the defendant’s motion to withdraw his guilty plea:

Assigned counsel expressed his opinion that the defendant should “maintain his plea” and informed the court that he didn’t “feel that [he] could represent [the defendant] at any further proceedings.” The defendant’s right to counsel was adversely affected when his attorney took a position adverse to the defendant’s with respect to that branch of the defendant’s motion which was to withdraw his plea of guilty to attempted use of a child in a sexual performance … . The County Court should have assigned a different attorney to represent the defendant before it determined that branch of the defendant’s motion… . People v Duart, 2014 NY Slip Op 00373, 2nd Dept 1-22-14

 

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Stipulation that Did Not Comply with Child Support Standards Act Upheld

In upholding a child support stipulation which did not comply with the Child Support Standards Act (CSSA), the Second Department explained the procedure for waiving the act:

Parties to a separation agreement are free to “opt out” of the provisions of the CSSA so long as their decision is made knowingly … . To ensure that waivers of the statutory provisions of the CSSA are truly knowingly made, Domestic Relations Law § 240(1-b)(h) requires specific recitals: (1) that the parties have been made aware of the CSSA; (2) that they are aware that the guidelines would result in the calculation of the presumptively correct amount of support; (3) that in the event the agreement deviates from the guidelines, it must recite the presumptively correct amount of support that would have been fixed pursuant thereto; and (4) the reason for the deviation … . The policy reasons underlying the requirement that waivers must be knowingly made are so strong that agreements that do not comply with the strictures of the CSSA are invalid and unenforceable, at least to the extent of the child support provisions set forth therein… . Rockitter v Rockitter, 2014 NY Slip Op 00336, 2nd Dept 1-22-14

 

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Analytical Criteria for Stipulation of Settlement Which Is Incorporated But Not Merged

In finding that a stipulation of settlement did not obligate the parties to file joint income tax returns, the Second Department explained the analytical criteria to be applied to a stipulation that is incorporated but not merged into a judgment of divorce:

” A stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation'” … . ” Where such an agreement is clear and unambiguous on its face, the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence'” … . “A court may not write into a contract conditions the parties did not insert or, under the guise of construction, add or excise terms, and it may not construe the language in such a way as would distort the apparent meaning” … . “Moreover, a court cannot reform an agreement to conform to what it thinks is proper, if the parties have not assented to such a reformation”… . Tamburello v Tamburello, 2014 NY Slip Op 00342, 2nd Dept 1-22-14

 

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2009 Statute Setting Aside Money for Increased Judicial Compensation Did Not Constitute a Pay Raise for Judges

The Second Department, in a full-fledged opinion by Justice Miller, determined that a 2009 law which set aside $51 million for increases in judicial pay did not increase judicial compensation.  The plaintiffs, judges and justices, argued that the legislation effected a pay raise because it did not reference the need for any future legislation:

To accept the plaintiffs’ argument would require us to conclude that the Legislature intentionally deleted what would have been explicit amendments to the salary schedule set forth in article 7-B of the Judiciary Law so that judicial compensation could be adjusted by utilizing the doctrine of repeal by implication, in conjunction with the implementation of the deleted salary schedules… . Pines v State of New York, 2014 NY Slip Op 00335, 2nd Dept 1-22-14

 

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Separate Dispositional Hearing to Determine Best Interests of the Child Appropriate in Mental Illness Parental-Rights Termination Proceeding

The Second Department explained when a separate dispositional hearing is appropriate in a proceeding to terminate parental rights based on mental illness:

Although, in the context of a proceeding pursuant to Social Services Law § 384-b to terminate parental rights based on mental illness, a separate dispositional hearing is not necessarily required in every case … the circumstances of a particular case may warrant a dispositional hearing such that a court’s determination to forgo such a hearing constitutes an improvident exercise of discretion … . Here, the evidence adduced at the fact-finding hearing indicated that the mother consistently continued her treatment, successfully completed parenting classes, and regularly visited the subject child. Furthermore, the record indicated that the subject child, who is now 13 years old, has long opposed adoption and has expressed a desire to maintain a close relationship with her mother. Under these circumstances, the court should have granted the mother’s motion for a dispositional hearing so that the parties could introduce evidence as to which of the dispositional alternatives would be in the best interests of the child… . Matter of Christina LN, 2014 NY Slip Op 00361, 2nd Dept 1-22-14

 

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Question of Fact Whether Vacuuming an HVAC Duct Was a Covered Cleaning Activity Under the Labor Law

The Second Department determined there was a question of fact whether vacuuming an HVAC duct was a covered “cleaning” activity under Labor Law 240(1):

Outside the sphere of commercial window washing (which is covered by Labor Law § 240[1]), the determination of whether an activity may be characterized as “cleaning” under the statute depends on a consideration of four factors. An activity cannot be considered “cleaning” under the statute if it: “(1) is routine, in the sense that it is the type of job that occurs on a daily, [*2]weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises; (2) requires neither specialized equipment or expertise, nor the unusual deployment of labor; (3) generally involves insignificant elevation risks comparable to those inherent in typical domestic or household cleaning; and (4) in light of the core purpose of Labor Law § 240(1) to protect construction workers, is unrelated to any ongoing construction, renovation, painting, alteration or repair project” … . Collymore v 1895 WWA, LLC, 2014 NY Slip Op 00320, 2nd Dept 1-22-14

 

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Question of Fact About Negligent Supervision at Skating Rink

The Second Department determined there was a question of fact whether injury incurred at defendant’s skating rink was the result of defendant’s negligent supervision:

Those charged with supervising a skating rink cannot be held liable for an injury if the act precipitating the injury was so sudden that no amount of supervision could have averted the accident … . Thus, where reckless behavior that is over and above the usual dangers inherent in the activity of skating is claimed to have caused the injury, the issue of whether the proprietor was negligent in supervising the skaters turns on whether the proprietor had sufficient notice of the allegedly reckless conduct so as to permit it to prevent the injury through the exercise of adequate supervision … . The duration and nature of the allegedly reckless conduct are factors that bear on this issue… .  Fader v Town of Oyster Bay, 2014 NY Slip Op 00324, 2nd Dept 1-22-14

 

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Attorney Conflict Waiver Criteria Discussed/Whether Molineux Analysis Should Be Applied to “Prior Bad Thoughts” in Journal Entries Discussed

In two concurring opinions, one by Judge Lippman and the other by Judge Abdus-Salaam, the Court of Appeals determined defendant did not raise an error warranting reversal.

The defendant contended (1) his attorney had personal interests which conflicted with her professional obligations to him, and (2) journal entries which were unrelated to the murder with which defendant was charged should not have been admitted in evidence.

One of defendant’s attorneys was under indictment by the same district attorney’s office for allegedly smuggling drugs to a client in jail. The defendant waived the conflict. The two judges disagreed about what such a conflict waiver should include and agreed the defendant’s conflict waiver was inadequate, but determined reversal was not required because there was an insufficient showing the conflict operated on the defense.

The journal entries were essentially “bad thoughts” about women other than the victim.  Judge Lippman determined that the “prior bad thoughts” should have been analyzed under the Molineux criteria for the admission of evidence of prior crimes and bad acts.  Judge Abdus-Salaam determined that Molineux should not be extended to such “prior bad thoughts,” which should simply be scrutinized under relevancy criteria. Both judges determined the erroneous admission of the “bad thoughts” evidence was harmless error.  People v Cortez, 225, CtApp 1-21-14

 

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“Foreseeability” In the Context of a Building Collapse

The First Department explained the “foreseeability” aspect of a Labor Law 240(1) action stemming from the collapse of a building:

A plaintiff in a case involving collapse of a permanent structure must establish that the collapse was “foreseeable,” not in a strict negligence sense, but in the sense of foreseeability of exposure to an elevation-related risk… . Garcia v Neighborhood Partnership Hous Dev Fund Co Inc, 2-14 NY Slip Op 00298, 1st Dept 1-21-14

 

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Tenant Who Successfully Defended a Landlord’s Holdover Action Entitled to Attorney’s Fees

The First Department, in a full-fledged opinion by Justice Renwick, over a dissent, determined that a tenant who prevailed in the defense of the landlord’s holdover proceeding was entitled to attorney’s fees pursuant to Real Property Law 24:

We now find that, having prevailed in his defense of the landlord’s holdover proceeding, the tenant is entitled to recover attorneys’ fees pursuant to Real Property Law § 234. That section states that when a lease provides for a landlord’s recovery of attorneys’ fees resulting from a tenant’s failure to perform any covenant under a lease, a reciprocal covenant “shall be implied” for the landlord to pay attorneys’ fees incurred as a result of either its failure to perform a covenant under the lease or a tenant’s successful defense:

“Whenever a lease of residential property shall provide that in any action or summary proceeding the landlord may recover attorneys’ fees and/or expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease, or that amounts paid by the landlord therefor shall be paid by the tenant as additional rent, there shall be implied in such lease a covenant by the landlord to pay to the tenant the reasonable attorneys’ fees and/or expenses incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease.”

The overriding purpose of the statute is to provide a level playing field between landlords and tenants, by creating a mutual obligation that is an incentive to resolve disputes quickly and without undue expense … . As a remedial statute, Real Property Law § 234 should be accorded its broadest protective meaning consistent with legislative intent … . The outcome of any claim pursuant to Real Property Law § 234 depends upon an analysis of the specific language of the lease provision at issue in each case to discern its meaning and import … . Graham CT Owner’s Corp v Taylor, 2014 NY Slip Op 00311, 1st Dept 1-21-14

 

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