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THE TENANT MADE GOOD FAITH EFFORTS TO CURE THE DEFAULTS CITED BY THE LANDLORD AND WAS ENTITLED TO A YELLOWSTONE INJUNCTION TOLLING TENANT’S TIME TO CURE (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Gonzalez, determined the tenant liquor-store had made good faith efforts to cure the defaults cited by the landlord and was entitled to a Yellowstone injunction tolling the tenant’s time to cure the defaults. The opinion lays out the fact in a level of detail which cannot be fairly summarized here:

In keeping with public policy against forfeiture, courts grant Yellowstone relief on “far less than the normal showing required for preliminary injunctive relief” … . The tenant need only demonstrate that (1) it holds a lease; (2) it received a notice of default, notice to cure, or threat to terminate the lease; (3) it requested injunctive relief prior to the termination of the lease or expiration of the cure period; and (4) it is prepared to cure the alleged default by any means short of vacating the premises … ,. Once the tenant establishes these elements, the motion court may exercise its discretion to issue a Yellowstone injunction tolling the tenant’s time to cure … . Elite Wine & Spirit LLC v Michelangelo Preserv. LLC, 2023 NY Slip Op 00631, First Dept 2-7-23

Practice Point: If a tenant has made good faith efforts to cure the defaults cited by the landlord, a court may grant the tenant a Yellowstone injunction tolling the tenant’s time for curing the defaults. The Yellowstone criteria are laid out in the opinion.

 

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THE REVIVED STATUTE OF LIMITATIONS FOR LAWSUITS ALLEGING SEXUAL ABUSE PURSUANT TO THE CHILD VICTIMS ACT (CVA) DOES NOT VIOLATE DUE PROCESS (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Bannister, determined the revived statute of limitations for law suits based upon sexual abuse under the Child Victims Act (CVA) did not violate due process:

… [I]t is well settled that “a claim-revival statute will satisfy the Due Process Clause of the [New York] State Constitution if it was enacted as a reasonable response in order to remedy an injustice” … . Addressing the second prong of that standard first—i.e., whether the statute “remed[ied] an injustice”—the Court of Appeals recognized that, “[i]n the context of a claim-revival statute, there is no principled way for a court to test whether a particular injustice is ‘serious’ or whether a particular class of plaintiffs is blameless; such moral determinations are left to the elected branches of government” … . Here, as evidenced by the legislative history of the CVA, the legislature considered the need for “justice for past and future survivors of child sexual abuse” and the need to “shift the significant and lasting costs of child sexual abuse to the responsible parties” … . Specifically, the legislative history noted the significant barriers those survivors faced in coming forward with their claims, including that child sexual abuse survivors may not be able to disclose their abuse until later in life after the relevant statute of limitations has run because of the mental, physical and emotional injuries sustained as a result of the abuse … . As explained in the Senate Introducer’s Memorandum in Support, “New York currently requires most survivors to file civil actions . . . against their abusers by the age of 23 at most, long before most survivors report or come to terms with their abuse, which has been estimated to be as high as 52 years old on average” … .. Because the statutes of limitat ions left “thousands of survivors” of child sexual abuse unable to sue their abusers, the legislature determined that there was an identifiable injustice that needed to be remedied … . PB-36 Doe v Niagara Falls City Sch. Dist., 2023 NY Slip Op 00598, Fourth Dept 2-3-23

Practice Point: The revived statute of limitations in the Child Victims Act is constitutional.

 

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THE JUDGE’S FAILURE TO INFORM DEFENDANT OF POSTRELEASE SUPERVISION RENDERED DEFENDANT’S ADMISSION TO A PROBATION VIOLATION INVALID; THE ISSUE WAS CONSIDERED ON APPEAL DESPITE THE ABSENCE OF A MOTION TO WITHDRAW THE ADMISSION (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the judge’s failure to inform defendant of postrelease supervision rendered the admission invalid. The issue may be raised on appeal despite the absence of a motion to withdraw the plea:

Defendant contends that his admission was not knowing, voluntary and intelligent because County Court failed to inform him at any time that he would be subject to postrelease supervision if the court sentenced him to prison. We agree. The People contend that defendant’s challenge to the voluntariness of his admission is not preserved for our review, inasmuch as he failed to move to withdraw his admission, but we reject that contention. Although defendant pleaded guilty to a probation violation, as opposed to a crime, “where a trial judge does not fulfill the obligation to advise a defendant of postrelease supervision during the plea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a postallocution motion” … . People v Bell, 2023 NY Slip Op 00594, Fourth Dept 2-3-23

Practice Point: Here the judge did not inform the defendant of postrelease supervision before he admitted to a probation violation. The admission was reversed on appeal despite the absence of a motion to withdraw the admission.

 

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BASED ON THE PEOPLE’S THEORY, THE JURY SHOULD NOT HAVE BEEN INSTRUCTED POSSESSION OF A WEAPON IS PRESUMPTIVE EVIDENCE OF AN INTENT TO USE IT UNLAWFULLY AGAINST ANOTHER; DEFENDANT’S REQUEST TO CALL A WITNESS SHOULD NOT HAVE BEEN DENIED; DEFENDANT’S REQUEST FOR $1000 TO HIRE A PSYCHIATRIC EXPERT SHOULD NOT HAVE BEEN DENIED; NEW TRIAL ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s conviction, determined the judge (1) should not have instructed the jury that possession of a weapon is presumptive evidence of an intent to use it unlawfully against another (2) should not have prevented defendant from calling as a witness a nurse practitioner who treated him at a psychiatric facility and (3) should have granted defendant’s request pursuant to the County Law for $1000 to hire a psychiatric expert:

County Court erred in charging the jury with respect to the presumption set forth in Penal Law § 265.15 (4) concerning the possession of weapons, i.e., that the possession by any person of any weapon is presumptive evidence of intent to use the same unlawfully against another. Pursuant to the statute, that presumption applies only where the defendant possesses the weapon in question (see Penal Law § 265.15 [4] …). Here, the People did not proceed on any theory that defendant had possession of the weapon at issue. … .

… [T]he court abused its discretion by precluding defendant from calling a proposed witness at trial, namely, a nurse practitioner who treated him at the Mohawk Valley Psychiatric Center prior to the incident, on the grounds that her testimony was not relevant and that defendant failed to give timely notice under CPL 250.10 (1) (c). It is well settled that “[a criminal] defendant has a fundamental right to call witnesses in his [or her] own behalf” … . Here, defendant established that the proposed witness would have provided relevant testimony with respect to his defense and also established good cause for the delay in the notice, and the People failed to establish any prejudice … .

“Pursuant to County Law § 722-c, upon a finding of necessity, a court shall authorize expert services on behalf of a defendant, and only in extraordinary circumstances may a court provide for compensation in excess of $1,000 per expert” … . Here, we conclude that the court abused its discretion by denying defendant’s application on the sole ground that defendant had a retained attorney … . People v Osman, 2023 NY Slip Op 00581, Fourth Dept 2-3-23

Practice Point: Based on the People’s theory the jury should not have been instructed that possession of weapon is presumptive evidence of an intent to use it unlawfully against another. The defendant’s request to call a witness who could offer relevant evidence should not have been denied where the delay in notification was explained and there was no prejudice. The defendant’s request pursuant to the County Law for $1000 to hire a psychiatric expert should have been granted.

 

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THE LACK-OF-STANDING DEFENSE WAS NOT RAISED IN THE ANSWER OR THE PREANSWER MOTION TO DISMISS; IT IS NOT A JURISDICTIONAL DEFECT; THEREFORE THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE ACTION ON THAT GROUND (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed petitioners’ declaratory judgment action against the town for lack of standing. The petitioners sought a ruling that the town had failed to enforce a zoning code provision which prohibited respondent-defendant from operating a commercial business out of his residence. Although the town moved to dismiss the action, it did not raise lack-of-standing in its answer or its motion. Therefore the judge did not have the authority to dismiss on that ground:

“Standing ‘is an aspect of justiciability which, when challenged, must be considered at the outset of any litigation’ ” … . Nonetheless, “a party’s lack of standing does not constitute a jurisdictional defect” … , and therefore a challenge to a party’s standing is waived if the defense is not asserted in either the answer or a preanswer motion to dismiss … . Here, the Town’s motion with respect to the second cause of action was not based on petitioners’ alleged lack of standing. Thus, we conclude that the court erred in sua sponte reaching the issue of standing with respect to that cause of action … . Matter of Cayuga Nation v Town of Seneca Falls, 2023 NY Slip Op 00575. Fourth Dept 2-3-23

Practice Point: A lack-of-standing is not a jurisdictional defect. Therefore, if it is not raised in the answer or a preanswer motion to dismiss, it is waived and the judge cannot raise it sua sponte.

 

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THE TOWN DID NOT OFFER PROOF THE ROAD LEADING TO PLAINTIFF’S HOME, WHICH WAS WIDENED BY THE TOWN, HAD BEEN USED BY THE PUBLIC AND MAINTAINED BY THE TOWN FOR 10 YEARS; THERFORE THE TOWN DID NOT PROVE THE ROAD WAS A PUBLIC HIGHWAY; THEREFORE PLAINTIFF’S EMINENT DOMAIN UNLAWFUL TAKING ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant municipality’s motion for summary judgment in this eminent domain “unlawful taking” action should not have been granted. Apparently the municipality did some work which widened the road leading to plaintiff’s home. Whether the work constituted an “unlawful taking” of plaintiff’s property turned on whether the road could be classified as a public highway. In order to demonstrate the road was a public highway the municipality had to prove the road was used by the public for at least 10 years. But the proof offered by the municipality only went back two years:

As the parties seeking summary judgment dismissing the eminent domain cause of action, defendants were required to establish, under these circumstances, that no unlawful taking occurred because Miller Road was a public highway by use pursuant to Highway Law § 189 and that all work that they performed was maintenance that did not have the effect of improperly widening the road. We agree with plaintiff that defendants failed to submit evidence establishing that Miller Road is a public highway within the meaning of section 189. “In order for a private road to be deemed a public highway by use, it must be show[n] that, for a period of at least 10 years, the road at issue was used by the public and the municipality exercised dominion and control over the road . . . Such a showing . . . requires more than intermittent use by the public and more than occasional road work by the municipality” … .

Here, in support of their motion, defendants submitted plaintiff’s testimony at a General Municipal Law § 50-h hearing, at which plaintiff repeatedly testified that the Town had, until shortly before the commencement of this action, refused to maintain the part of the road at issue, and the affidavit of defendant Highway Superintendent Joseph Wasilewski, who had personal knowledge of the facts concerning only the two years that preceded the filing of the motion. Consequently, we conclude that defendants failed to “make a prima facie showing of entitlement to judgment as a matter of law [by] tendering sufficient evidence to eliminate any material issues of fact from the case” … . Federman v Town of Lorraine, 2023 NY Slip Op 00553. Fourth Dept 2-3-23

Practice Point: Here the town widened the road leading to plaintiff’s house. Plaintiff brought an eminent domain unlawful taking action. In order to dismiss the complaint the town was required to prove the road was a public highway in that it was used by the public and maintained by the town for 10 years. The town’s proof fell short of that and plaintiff’s action should not have been dismissed.

 

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ALTHOUGH FAMILY COURT CAN DIRECT MOTHER TO ENGAGE IN COUNSELING, SUBMIT TO DRUG TESTS AND TAKE MEDICATION, FAMILY COURT CAN NOT MAKE THE DIRECTIVES A PREREQUISITE FOR VISITATION (FOURTH DEPT).

The Fourth Department determined Family Court did not have the authority to make mother’s compliance with drug-test, medication and counseling directives a prerequisite for visitation:

… [T]he court erred in requiring the mother to participate in counseling, take her medications as prescribed, and provide proof of a negative hair follicle test prior to having therapeutic visitation with the children. Although the court may include such directives as a component of visitation, it does not have the authority to make them a prerequisite to visitation … . We therefore modify the orders accordingly, and we remit the matters to Family Court to fashion schedules for the mother’s therapeutic visitation with each child. Matter of Sharlow v Hughes, 2023 NY Slip Op 00518, Fourth Dept 2-3-23

Practice Point: Family Court can direct mother to submit to drug tests, engage in counseling and take medication but it cannot make the directives a prerequisite for visitation.

 

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MATTER REMITTED FOR CONSIDERATION OF EXPERT EVIDENCE ABOUT WHICH ECUADORIAN STATUTE IS MOST CLOSELY ANALOGOUS TO NEW YORK’S FRAUDULENT-CONVEYANCE CRITERIA FOR PURPOSES OF NEW YORK’S BORROWING STATUTE; HERE THE ACTION ACCRUED IN ECUADOR; THE SHORTER OF THE APPLICABLE ECUADORIAN AND NEW YORK STATUTES OF LIMITATIONS WILL APPLY (FIRST DEPT).

The Frist Department, reversing Supreme Court and remitting the matter for consideration of the expert evidence, determined Supreme Court may have applied the wrong Ecuadorian statute in the analysis of the statute of limitations under the borrowing statute:

Under CPLR 202, New York’s “borrowing statute,” where a nonresident plaintiff sues on causes of action that accrued outside of New York, the claims must be timely under the limitations period of both New York and the jurisdiction where the action accrued … . In effect, the shorter of the two states’ statutes of limitations controls the timeliness of the action … . …

If the foreign state does not have causes of action directly analogous to the New York causes of action, the limitations period of the foreign causes of action that are most closely analogous to the New York claims are to be applied … . …

In performing the foregoing analysis, the motion court found applicable Ecuador’s default statute, which has a 10-year statute of limitations, and thereby found plaintiff’s claims timely filed, despite the expert testimony establishing that Ecuador’s default statute is not directly applicable to plaintiff’s fraudulent conveyance claims and not the Ecuadorian cause of action most closely analogous to the New York causes of action. Andes Petroleum Ecuador Ltd. v Occidental Petroleum Co., 2023 NY Slip Op 00481, First Dept 2-2-23

Practice Point: Here the fraudulent conveyance action accrued in Ecuador. Under the borrowing statute the shorter of the New York and Ecuadorian statutes of limitations applies. Where, as here, there is no foreign statute exactly analogous to the New York cause of action, expert evidence about which foreign statute is most analogous should be considered.

 

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THE CORRECTION LAW REQUIRING A SEX OFFENDER TO VERIFY HIS OR HER ADDRESS EVERY NINETY DAYS IS VOID FOR VAGUENESS AS APPLIED TO HOMELESS SEX OFFENDERS (FIRST DEPT). ​

The First Department, vacating defendant’s guilty pleas, in a full-fledged opinion by Justice Renwick, determined the Correction-Law requirement that a sex offender verify his or her address every 90 days is void for vagueness as applied to homeless sex offenders:

… [T]he question is whether the reporting requirements of Correction Law § 168-f(3) provided sufficient notice to defendant of what conduct was mandated by the statute when he left his previous residence address, a homeless shelter, but possessed no new permanent or temporary residence with an address. According to its plain language, Correction Law § 168-f(3) mandates that offenders register a change of residence by providing a specific new “address.” The statute, however, contains no objective standard or guidelines that would put homeless sex offenders without an address on notice of what conduct is required of them. Under these circumstances, such transient offenders can only guess at what is meant by the requirement that they register their new “address.” Similarly, the change of address reporting requirement fails to provide even minimal guidelines for the registering authorities in these regards, thus encouraging arbitrary enforcement. People v Allen, 2023 NY Slip Op 00496, First Dept 2-2-23

Practice Point: The Correction Law requiring a sex offender to verify his or her address every ninety days is void for vagueness as applied to homeless sex offenders.

 

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DEFENSE COUNSEL MOVED TO SUPPRESS AN UNNOTICED EYEWITNESS IDENTIFICATION OF THE DEFENDANT AFTER BEING TOLD THE IDENTIFICATION WOULD BE PRECLUDED IF HE DID NOT MOVE TO SUPPRESS; DEFENSE COUNSEL INTRODUCED DEFENDANT’S MUG SHOT DESPITE THE SUPPRESSION OF THE PHOTO ID; DEFENSE COUNSEL DID NOT OBJECT TO A DETECTIVE’S IMPROPER IDENTIFICATION OF THE DEFENDANT IN A BLURRY VIDEO; THE MOTION TO VACATE DEFENDANT’S CONVICTION ON INEFFECTIVE ASSSISTANCE GROUNDS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should have been granted. Defense counsel moved to suppress an unnoticed eyewitness identification knowing that the evidence would have been precluded had he not moved to suppress. Defense counsel introduced the mug shot of the defendant, despite the suppression of the photo identification. Defense counsel did not object to the improper identification of the defendant in a blurry video by a detective:

The record does not support the hearing court’s determination that counsel’s waiver of preclusion of the unnoticed identification made by the sole eyewitness to the shooting was a legitimate trial strategy … . … [T]rial counsel initially did not appreciate that by moving to suppress the identification, he waived preclusion of the unnoticed identification under CPL 710.30(3). …

… [A]lthough the suppression hearing court had suppressed this witness’s photo identification of defendant, counsel nevertheless introduced at trial the mug shot shown to the witness. …

… [T]rial counsel did not object to a detective’s improper identification of defendant in a blurry video … . People v McCray, 2023 NY Slip Op 00502, First Dept 2-2-23

Practice Point: If the People do not provide timely notice of an identification of the defendant, the evidence will be precluded. If however a motion to suppress the identification is made, it will not be precluded. Here making the motion to suppress was deemed ineffective assistance.

Practice Point: Counsel was ineffective for introducing the mug shot of the defendant after the photo identification had been suppressed.

Practice Point: Counsel was ineffective for failing to object to a detective’s improper identification of the defendant in a blurry video.

 

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