You are here: / THE WAIVER OF APPEAL WAS INVALID; THE SUPPRESSION MOTION SHOULD NOT HAVE...

Search Results

/ , ,

THE WAIVER OF APPEAL WAS INVALID; THE SUPPRESSION MOTION SHOULD NOT HAVE BEEN DENIED ON A GROUND NOT RAISED BY THE PEOPLE; AND AN APPELLATE COURT CAN NOT CONSIDER ARGUMENTS ON ISSUES NOT RULED ON BELOW (FIRST DEPT).

The First Department, reversing defendant’s conviction by guilty plea and the denial of defendant’s motion to suppress, over an extensive dissent, determined defendant’s waiver of appeal was invalid, the motion to suppress should not have been denied on a ground not raised by the parties, and the appellate court cannot rule on issues not decided below:

… [T]he court conflated defendant’s appellate and trial rights by asking the defendant “[i]s that what you wish to do to waive your right to appeal and your other rights . . . by pleading guilty[?]” Instead, the majority of the court’s colloquy of defendant’s appellate rights focused on sentencing, on which the court itself needed clarification, not in differentiating trial from appellate rights.

… [T]he court made other errors in its oral colloquy that further justify invalidating defendant’s waiver of his appellate rights. Specifically, the court failed to advise defendant of the nature of the right to appeal … , erroneously mischaracterized the finality of the waiver … , and failed to discuss the written waiver form with defendant … . The detailed written waiver that defendant executed with counsel cannot save the numerous errors in the court’s oral colloquy, as “‘a written waiver is not a complete substitute for an on-the-record explanation of the nature of the right to appeal'” … . * * *

… [A]bsent “on-the-record acknowledgements of [defendant’s clear] understanding” … of his appellate rights waiver, the presumption of defense counsel’s competent representation during the plea negotiations is simply insufficient to overcome the court’s deficient colloquy … . * * *

… [T]he People never disputed that defendant had standing to challenge the search warrant. Therefore, the court should not have denied the motion “based on a ground not raised by the People” … . … [T]he People’s current arguments on appeal are precluded by People v LaFontaine (92 NY2d 470, 474 [1998]) because the suppression court did not rule upon these issues, and this Court may not affirm on those alternative grounds … . People v Bonilla, 2022 NY Slip Op 07304, First Dept 12-22-22

Practice Point: Here the waiver of appeal was deemed invalid and there was an extensive dissent on that issue. The motion to suppress should not have been denied on a ground not raised by the People. An appellate court cannot consider issues not ruled on below.

 

/ ,

THE HUSBAND DEMONSTRATED HE WAS ILL WHEN THE DIVORCE TRIAL WAS HELD AND THE WIFE MAY NOT BE ENTITLED TO A PORTION OF HIS WORLD TRADE CENTER ACCIDENTAL DISABILITY RETIREMENT BENEFITS BECAUSE PERSONAL-INJURY BENEFITS CONSTITUTE SEPARATE PROPERTY; THE HUSBAND’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court in this divorce action, determined the husband’s motion to vacate the default judgment should have been granted. The husband demonstrated he missed the trial because of illness and he had a meritorious argument that the World Trade Center accidental disability retirement benefits were personal-injury benefits which constituted his personal property:

Pursuant to CPLR 5015 … a court may vacate an order “upon the ground of excusable default, if such motion is made within one year” after such order … . “[A] party seeking to vacate a default must establish a reasonable excuse for the default and a potentially meritorious . . . defense” to the underlying claim … . Significantly, “in recognition of the important public policy of determining matrimonial actions on the merits, the courts of this State have adopted a liberal policy with respect to vacating defaults in actions for divorce” … . * * *

… [I]n support of his motion to vacate the default, the husband proffered an affidavit wherein he averred that on the day of the hearing he was suffering from shingles and, as such, he was in extreme pain, sleep deprived, disoriented and unable to leave his bed. The husband also submitted an affidavit from a physician’s assistant who diagnosed him with, and treated him for, shingles approximately two weeks prior to the date of the trial. She also averred that she saw the husband again the day following the missed trial and that she “observed a noticeable progression of the shingles rash on [the husband’s] body.” … . …

… [T]he husband claims that the wife is not entitled to the portion of his pension that is for World Trade Center accidental disability retirement benefits. “While it is true that the portion of a disability pension which represents compensation for personal injuries is separate property, the party so claiming bears the burden of demonstrating what portion of the pension reflects compensation for personal injuries, as opposed to deferred compensation” … . Zeledon v Zeledon, 2022 NY Slip Op 07279, Third Dept 12-22-22

Practice Point: Here the husband’s illness at the time of trial was a reasonable excuse for his default and the argument that the wife was not entitled to his World Trade Center accidental disability retirement benefits which constituted his separate property (personal-injury benefits) was meritorious. Therefore the husband’s CPLR 5015 motion to vacate the default judgment should have been granted.

 

/ , , ,

ALTHOUGH THE MEDICAL MALPRACTICE ACTIONS WERE TIME-BARRED, THE RELATED WRONGFUL DEATH ACTION, BROUGHT WITHIN TWO YEARS OF DEATH, WAS NOT (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined that, although the medical malpractice actions were time-barred, the related wrongful death action, brought within two years of death, was not:

Although the plaintiff denominated the second cause of action as one for “loss of services,” she alleged all the elements necessary to plead a cause of action for wrongful death, including “(1) the death of a human being, (2) the wrongful act, neglect or default of the defendant by which the decedent’s death was caused, (3) the survival of distributees who suffered pecuniary loss by reason of the death of decedent, and (4) the appointment of a personal representative of the decedent” … . … [T]he wrongful death cause of action was timely. EPTL 5-4.1 provides that an action for wrongful death “must be commenced within two years after the decedent’s death.” Here, the decedent died on November 9, 2013, and this action was commenced on November 9, 2015. Thus, “the cause of action alleging wrongful death was timely commenced within two years of the decedent’s death, since, at the time of [his] death, [the] cause of action sounding in medical malpractice was not time-barred” … .Proano v Gutman, 2022 NY Slip Op 07253, Second Dept 12-21-22

Practice Point: Here the medical malpractice actions were time-barred, but the related wrongful death actions, brought within two years of death, were not.

 

/ , ,

THE CRITERIA FOR PIERCING THE CORPORATE VEIL IN THIS PERSONAL INJURY ACTION AGAINST A BAR OWNED AND OPERATED BY A LIMITED LIABILITY COMPANY WERE NOT MET; THE OVER $2,000,000 JUDGMENT AGAINST THE SOLE MEMBER OF THE LLC REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court after a non-jury trial awarding plaintiff over $2,000,000, determined plaintiff was not entitled to pierce the corporate veil to hold defendant Traina, the sole member of defendant limited liability company (LLC), personally liable. Plaintiff brought a personal injury action against the bar owned and operated by the LLC and was awarded a default judgment:

Generally, a member of a limited liability company cannot personally be held liable for any debts, obligations or liabilities of the limited liability company, “whether arising in tort, contract or otherwise” (Limited Liability Company Law § 609[a]). The concept of piercing the corporate veil is an exception to this general rule, permitting, in certain circumstances, the imposition of personal liability on members for the obligations of the limited liability company … . ” … [G]enerally . . . piercing the corporate veil requires a showing that: (1) the owners exercised complete domination of the corporation [or LLC] in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the [party seeking to pierce the corporate veil] which resulted in [the party’s] injury” … . * * *

… [A]lthough Traina did not observe all corporate formalities, the evidence established that he ran a real business, with employees, customers, and vendors, and the petitioner presented no evidence that the LLC was undercapitalized or that Traina commingled the assets of the LLC with his own or used corporate funds for personal use … . … w[W]ile the petitioner demonstrated that Traina exercised complete domination and control over the LLC, he failed to show that Traina’s actions, including abandoning certain fixtures and equipment to his landlord, were for the purpose of leaving the LLC judgment proof or to perpetrate a wrong against the petitioner … .  … [P]etitioner did not meet his burden of proof to establish that there was a basis to pierce the corporate veil … . Matter of DePetris v Traina, 2022 NY Slip Op 07232, Second Dept 12-21-22

Practice Point: The criteria for piercing the corporate veil in this personal injury action against a bar owned and operated by a limited liability company were not met. The over $2,000,000 judgment against the sole member was reversed.

 

/ ,

THE DEFAULTING DEFENDANT WAS DEEMED TO HAVE ADMITTED ALL THE ALLEGATIONS IN THE BREACH-OF-CONTRACT COMPLAINT; THERFORE WHETHER DEFENDANT CAUSED THE DAMAGES SUSTAINED BY PLAINTIFF SHOULD NOT HAVE BEEN CONSIDERED IN THE INQUEST; THE FACT THAT THE AMOUNT OF DAMAGES IS UNCERTAIN DOES NOT JUSTIFY THE FAILURE TO AWARD DAMAGES (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendant’s default admitted all the allegations in the complaint. Therefore damages should have been awarded for breach of contract:

A defaulting defendant is “deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them” … . “The sole issue to be determined at an inquest is the extent of damages sustained by the plaintiff” … . Here, the inquest court erred in considering the question of whether the defendants caused the damages sustained by the plaintiff … .

… [W]hile there is some uncertainty with respect to the plaintiff’s claim of lost profits, “when it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there can rarely be good reason for refusing, on account of such uncertainty, any damages whatever for the breach. A [party] violating [a] contract should not be permitted entirely to escape liability because the amount of the damages which [the party] has caused is uncertain” … . LD Acquisition Co. 9, LLC v TSH Trade Group, LLC, 2022 NY Slip Op 07227, Second Dept 12-21-22

Practice Point: A defaulting defendant is deemed to have admitted all the allegations in the complaint. Therefore whether the defendant caused the damages alleged in the complaint should not be considered in the inquest. Here the failure to award any damages for breach of contract was not appropriate.

 

/ , ,

THE SO-ORDERED STIPULATION BETWEEN THE PARTIES RENDERED THE RELATED CAUSE OF ACTION IN THE COMPLAINT MOOT; THE OTHER CAUSE OF ACTION RELIED ON SPECULATION ABOUT FUTURE EVENTS AND THEREFORE WAS NOT RIPE FOR JUDICIAL REVIEW (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined; (1) the stipulation between the two parties rendered the related cause of action in the complaint moot’ and (2) the other cause of action in the complaint was based on speculation about future events and therefore was not ripe for judicial review:

… [P]ursuant to the mootness doctrine, courts are precluded “from considering questions which, although once live, have become moot by passage of time or change in circumstances” … . By contrast, if an “anticipated harm is insignificant, remote or contingent the controversy is not ripe” for judicial review … . “To determine whether a matter is ripe for judicial review, it is necessary first to determine whether the issues tendered are appropriate for judicial resolution, and second to assess the hardship to the parties if judicial relief is denied” … .

… [T]he first cause of action was resolved by the parties’ so-ordered stipulation. … [T]hat cause of action was rendered academic pursuant to the mootness doctrine … . … [T]he second cause of action relied on speculation about what the County and its various departments might do in response to future audits, and therefore the contemplated harm was both remote and contingent and the controversy was not ripe for judicial review … . Kennedy v Suffolk County, 2022 NY Slip Op 07226, Second Dept 12-21-22

Practice Point: If a cause of action has already been addressed by a so-ordered stipulation, the cause of action is precluded by the mootness doctrine. If a cause of action is based on speculation about future events, it is not ripe for judicial review.

 

/ ,

DEFENDANTS IN THIS FORECLOSURE ACTION WERE ENTITLED TO A HEARING PURSUANT TO CPLR 3408 RE: WHETHER THE BANK ENGAGED IN SETTLEMENT NEGOTIATIONS IN GOOD FAITH (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendants in this foreclosure action were entitled to a hearing on whether plaintiff bank engaged in settlement negotiations in good faith:

… Supreme Court should have granted the defendants’ cross motion for a hearing to determine whether the plaintiff negotiated in good faith pursuant to CPLR 3408(f). CPLR 3408 requires the parties in a residential foreclosure action to attend settlement conferences at an early stage of the litigation, at which they must “negotiate in good faith to reach a mutually agreeable resolution” … . … [T]he circumstances surrounding its servicer’s handling of the first two loan modification applications are “relevant in the overall context of the parties’ relationship and the negotiations between them,” and thus, are relevant to the good faith inquiry … . …[D]efendants submitted evidence that the plaintiff “engaged in dilatory conduct by making piecemeal document requests, providing contradictory information, and repeatedly requesting documents which had already been provided”… . Investors Bank v Brooks, 2022 NY Slip Op 07224, Second Dept 12-21-22

Practice Point: Defendants submitted evidence the bank in this foreclosure action did not engage in settlement negotiations pursuant to CPLR 3408 in good faith. Supreme Court should have held a hearing.

 

/ ,

THE CALCULATIONS IN THE REFEREE’S REPORT WERE NOT SUPPORTED BY THE RELEVANT BUSINESS RECORDS; THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this foreclosure action, determined the calculations in the referee’s report were not supported by the relevant business records and the report, therefore, should not have been confirmed:

… [T]he affidavit of Tiffany Bluford, an employee of the plaintiff’s servicing agent, submitted for the purpose of establishing the amount due and owing under the subject mortgage loan, “constituted inadmissible hearsay and lacked probative value because the affiant did not produce any of the business records [she] purportedly relied upon in making [her] calculations” … . Moreover, the affidavit of Andrea Kruse, another employee of the plaintiff’s servicing agent, did not contain any averment as to the amount due and owing under the subject mortgage loan. Thus, the referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record … . HSBC Bank USA, N.A. v Delgado, 2022 NY Slip Op 07223, Second Dept 12-21-22

Similar issue and result in Wilmington Sav. Fund Socy., FSB v Helal, 2022 NY Slip Op 07259, Second Dept 12-21-22

Practice Point: In a foreclosure action, if the calculations in the referee’s report are not supported by the submission of the relevant business records, the report is based on hearsay and should not be confirmed.

/ , ,

THE BANK DID NOT PROVE COMPLIANCE WITH THE NOTICE AND MAILING REQUIREMENTS OF RPAPL 1304 IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank in this foreclosure action did not demonstrate compliance with the notice requirements of RPAPL 1304:

… [P]laintiff failed to establish its strict compliance with RPAPL 1304. The plaintiff relied upon the affidavit of Summer Young, a vice president of the plaintiff’s purported loan servicer. The affidavit was based upon Young’s review of her employer’s records, which were attached thereto. Young did not aver that she had personal knowledge of the mailing, and her affidavit did not contain proof of the standard office mailing procedure at the time the RPAPL 1304 notice allegedly was sent … . Nor did the annexed records demonstrate, prima facie, that the requisite RPAPL 1304 mailings were completed … . Because the plaintiff “failed to provide proof of the actual mailing, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure, the plaintiff failed to establish its strict compliance with RPAPL 1304,” and therefore failed to establish, prima facie, its entitlement to judgment as a matter of law …  The plaintiff also failed to establish, prima facie, that it complied with the notice of default requirement of the mortgage agreement … . HSBC Bank USA, N.A. v Michalczyk, 2022 NY Slip Op 07222, Second Dept 12-21-22

Practice Point: the bank in this foreclosure action did not present sufficient evidence of compliance with the notice and mailing requirements of RPAPL 1304.

 

/ , ,

PLAINTIFF IN THIS NON-JURY TRIAL DID NOT DEMONSTRATE COMPLIANCE WITH RPAPL 1303; JUDGMENT OF FORECLOSURE AND SALE REVERSED (SECOND DEPT). ​

The Second Department, reversing the judgment (after a non-jury trial) of foreclosure and sale, determined plaintiff did not demonstrate compliance with RPAPL 1303:

RPAPL 1303 requires that a notice titled “Help for Homeowners in Foreclosure” be delivered to the mortgagor along with the summons and complaint in residential foreclosure actions involving owner-occupied, one- to four-family dwellings … . “The statute mandates that the notice be in bold, 14-point type and printed on colored paper that is other than the color of the summons and complaint, and that the title of the notice be in bold, 20-point type” … . “Proper service of an RPAPL 1303 notice is a condition precedent to the commencement of a foreclosure action, and noncompliance mandates dismissal of the complaint” … . The foreclosing party bears the burden of establishing compliance with RPAPL 1303 … .

Here, it is undisputed that the plaintiff did not offer any evidence at trial establishing that it complied with the specific requirements of RPAPL 1303, or that it delivered such notice to Nodumehlezi [defendant] at all. Contrary to the plaintiff’s contention, the Supreme Court’s reliance, in a posttrial decision, on documents that had been previously e-filed to establish the plaintiff’s compliance with RPAPL 1303 was improper, since Nodumehlezi had no opportunity to rebut the previously filed affidavit of service and the related documents … . 21st Mtge. Corp. v Nodumehlezi, 2022 NY Slip Op 07212, Second Dept 12-21-22

Practice Point: Here there was a non-jury trial and plaintiff did not prove compliance with RPAPL 1303. The judgment of foreclosure and sale was reversed.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy