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SUPREME COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT OF DIVORCE AGAINST THE HUSBAND, WHO WAS REPRESENTING HIMSELF, WHEN HE DID NOT APPEAR AT THE INQUEST; BOTH THE COURT AND THE WIFE WERE AWARE THE HUSBAND HAD BEEN DIAGNOSED WITH A SIGNIFICANT MENTAL HEALTH CONDITION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judgment of divorce should not have been entered after the husband, who was representing himself, failed to appear at an inquest. Both the court and his wife were aware he had been diagnosed with a mental health condition, resulting in episodes when he could not care for himself or protect his interests:

… [A]t the conclusion of the inquest, the court explicitly acknowledged that the husband’s absence was likely attributable to his mental health. Thus, before entering judgment upon the husband’s default, there should have been an inquiry into whether a guardian ad litem was necessary (see CPLR 1201, 1203 …). Because there was no inquiry, the judgment must be vacated and the matter remanded for further proceedings, including, if necessary, an inquiry into the husband’s current capacity … . Richard v Buck, 2022 NY Slip Op 02101, First Dept 3-29-22

Practice Point: Here both the court and the wife were aware the husband, who was representing himself and did not appear at the inquest, suffered from a significant mental health condition. The default judgment of divorce should not have been entered. The judgment was vacated. If necessary, Supreme Court should hold a hearing to determine the husband’s capacity.

 

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THE BIOLOGICAL MOTHER AND THE ADOPTIVE MOTHER ENTERED A POSTADOPTION CONTACT AGREEMENT WHICH ALLOWED TWO SUPERVISED VISITS WITH THE BIOLOGICAL MOTHER PER YEAR; THE EVIDENCE OF THE CHILDREN’S BEHAVIOR AFTER VISITING WITH THE BIOLOGICAL MOTHER SUPPORTED FAMILY COURT’S CONCLUSION IT WAS IN THE BEST INTERESTS OF THE CHILDREN TO TERMINATE VISITATION WITH THE BIOLOGICAL MOTHER; THE DISSENT ARGUED THE EVIDENCE OF THE DAUGHTER’S, IN CONTRAST TO THE SON’S, POST-VISIT BEHAVIOR DID NOT SUPPORT TERMINATION OF VISITATION WITH THE DAUGHTER (THIRD DEPT).

The Third Department, over a two-justice partial dissent, determined Family Court properly terminated the biological mother’s visitation with her children who had been adopted. The biological mother and the adoptive mother had entered a postadoption contact agreement which allowed the biological mother two supervised visits per year with her son and daughter. The evidence at the fact-finding hearing demonstrated that the son’s behavior changed drastically after visits. His behavior was characterized as “out of control.” There was evidence the daughter began banging her head and had nightmares after a visit. The dissent argued the evidence supported termination of visits with the son, but did not support the termination of visits with the daughter:

The adoptive mother testified that after visiting the biological mother in December 2017, the son destroyed rooms in the house and was completely out of control for close to a month. After the July 2018 visit with the biological mother, the son “climb[ed] the walls in [his] classroom,” hit his friend, hurt his sister and had difficulties regulating his behavior for several months. * * *

With respect to the dissent’s reference to the policy concerns underlying postadoption contact agreements, we note that we wholeheartedly embrace and promote the policies and goals of these types of agreements and encourage open adoptions. However, it is not our intention to address the underlying policies of postadoption contact agreements, but, instead, to focus solely upon the principle governing and guiding the initiation and continuation of open contact between the children and the biological parent — the best interests of the children. Here, it is uncontroverted that the daughter displayed a persistent pattern of bizarre and harmful behavior — head banging and disrupted sleep due to nightmares — commensurate with visits with her biological mother. These behaviors continued for 1½ years. Although the daughter did not display the behaviors at the time of the visits, a time when the adoptive parents were present and the daughter’s attention was directed toward other activities, the behaviors were manifested subsequent to each visit. … [W]e cannot agree that enforcing visitation with respect to one sibling but not the other serves the best interests of either. Matter of Jennifer JJ. v Jessica JJ., 2022 NY Slip Op 02043, Third Dept 3-24-22

Practice Point: The postadoption contact agreement allowing the biological mother to visit her children after adoption was properly terminated by the court because the evidence of the children’s post-visit behavior supported the conclusion continued visitation was not in the best interests of the children.

 

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THE FACT THAT THE ATTORNEY FOR THE CHILD (AFC) IN THIS CUSTODY MATTER HAD, AS A JUDGE, PRESIDED OVER A DIFFERENT CUSTODY MATTER INVOLVING MOTHER, BUT INVOLVING DIFFERENT CHIDREN AND A DIFFERENT FATHER, DID NOT REQUIRE AUTOMATIC DISQUALIFACTION OF THE AFC PURSUANT TO JUDICIARY LAW 17 (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the attorney for the child (AFC) in the instant custody matter, who, as a judge, had presided over another custody case involving mother and different children, was not subject to automatic disqualification:

Various factual circumstances exist where disqualification of an attorney under Judiciary Law § 17 has been found. * * *

… [T]he custody case noted by the mother neither involved the subject children nor the subject children’s father] Rather, it was an entirely separate proceeding involving different children and a different father. Furthermore, the mother does not allege any factual ties between these underlying proceedings and the prior custody case … . Indeed, the only common tie between them is that the mother was a litigant. … [O]nly the mother, and not her present custody claim over the subject children, had been before the AFC during his tenure as a judge.

… [T]he mother’s fitness as the custodial parent presumably was an issue presented in her prior custody case. It is also an issue present here. Equating a discrete issue with a “matter” provided in Judiciary Law § 17, however, impermissibly stretches the meaning of “matter” such that it does not comport with “action, claim, . . . motion or proceeding” — the other terms in Judiciary Law § 17 … . … [I]n view of the jurisdiction of Family Court and the particular cases such court hears, a party’s fitness as a custodial parent frequently arises as an issue whether directly or indirectly. By giving an expansive view to “matter,” the AFC, a former Family Court judge who had presided over countless proceedings in the past, would be disqualified from representing any party in any future case where another party in such case was previously before the AFC in one of those past proceedings — a result that would occur without regard to the nature of either the past proceeding or future case. Matter of Corey O. v Angela P., 2022 NY Slip Op 02044, Third Dept 3-24-22

Practice Point: The fact that the attorney for the child (AFC) in this custody case presided, as a judge, over another custody case involving mother, but involving different children and a different father, did not require automatic disqualification of the AFC pursuant to Judiciary Law section 17.

 

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IN THIS SEX-OFFENSE CASE, THE SENTENCING JUDGE VIOLATED THE CRIMINAL PROCEDURE LAW BY REFUSING TO DISCLOSE THE VICTIM IMPACT STATEMENT TO THE DEFENDANT WITHOUT PLACING THE REASONS FOR NONDISCLOSURE ON THE RECORD; THE ISSUE SURVIVED THE WAIVER OF APPEAL (THIRD DEPT).

The Third Department, vacating defendant’s sentence and remitting for resentencing before a different judge, determined the sentencing judge who reviewed the victim impact statement in this sexual-offense case, and who granted the victim’s request to keep the victim impact statement confidential, violated CPL 390.50, which requires the judge to state the reasons, on the record, for not disclosing a victim impact statement to the defendant. The issue survived defendant’s waiver of appeal:

… [W]e find that defendant’s CPL 390.50 (2) (a) argument must survive the waiver of appeal as the Legislature has, without qualification or restriction, expressly mandated that “[t]he action of the court excepting information from disclosure shall be subject to appellate review” (CPL 390.50 [2] [a]), and courts “may not create a limitation that the Legislature did not enact” … . …

… [T]he record before us does not reflect any ruling by County Court with respect to the victim’s request to except her statement from disclosure. We therefore must conclude that the court failed to set forth “the reasons for its action” on the record, in violation of CPL 390.50 (2) (a) … . The record also does not reflect that any consideration was given to redacting the victim’s statement, leaving defendant wholly “unable to verify the accuracy of the information [therein] or meaningfully respond to it,” in further contravention of the statute … . What is clear, however, is that defendant never had the opportunity to review the victim’s statement and that County Court heavily relied upon it in fashioning its sentence. People v Ortiz, 2022 NY Slip Op 02041, Third Dept 3-24-22

Practice Point: If a sentencing judge wishes to withhold a victim impact statement from the defendant, the reasons for nondisclosure must be placed on the record (CPL 390.50). This issue survives a waiver of appeal.

 

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PLAINTIFF SUFFICIENTLY ALLEGED CAUSES OF ACTION FOR EMPLOYMENT DISMCRIMINATION BASED ON NATIONAL ORIGIN (YEMENI), HOSTILE WORK ENVIRONMENT, AND RETALIATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff stated claims for (1) employment discrimination on the basis of national origin )Yemeni), (2) hostile work environment, and (3) retaliation:

[Plaintiff’s] assertion that he was denied a promotion to sergeant on at least two occasions adequately supports … his claim [for discrimination on the basis of national origin] …  . … [H]is allegations that a coworker made derogatory remarks about Yemenis in the presence of his supervisors, that such remarks were ignored or condoned, and that non-Yemeni campus peace officers, who were less qualified than he, were promoted to the sergeant position, supports the fourth element of his claim, i.e. that the adverse action occurred under circumstances giving rise to an inference of discrimination … . …

Plaintiff has also stated a cause of action for hostile work environment, as his coworker’s multiple derogatory remarks about Yemenis, sometimes made in the presence of plaintiff’s supervisors, along with the allegedly unfounded write-ups, unfavorable assignments, and denial of a promotion, were sufficiently severe and pervasive to support that cause of action … . Plaintiff also alleges that defendants knew about the comments and failed to take appropriate action … .

Plaintiff has sufficiently alleged retaliation by showing that: (1) he engaged in protected activity in December 2016 when he filed a complaint stating that his supervisor was discriminating against him, (2) defendants were aware that he participated in such activity, (3) he was denied a promotion in February and May 2017, and (4) there is a causal connection between the protected activity and the adverse action … . Alshami v City Univ. of N.Y., 2022 NY Slip Op 02053, First Dept 3-24-22

Practice Point: This decision describes the allegations of employment discrimination (Human Rights Law) for (1) discrimination on the basis of national origin (Yemeni), (2) hostile work environment, and (3) retaliation which are sufficient to survive a motion to dismiss.

 

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THE INDICTMENT CHARGED DEFENDANT WITH ASSAULT SECOND AND ATTEMPTED ASSAULT SECOND BUT DID NOT ALLEGE THE USE OF A DEADLY WEAPON OR A DANGEROUS INSTRUMENT; THE PEOPLE’S THEORY AT TRIAL WAS DEFENDANT USED A PVC PIPE AS A DEADLY WEAPON OR A DANGEROUS INSTRUMENT; BUT, TO CORRECT THE FLAWED INDICTMENT, THE JUDGE, A DAY BEFORE THE END OF THE TRIAL, AMENDED THE INDICTMENT TO CHARGE ASSAULT THIRD AND ATTEMPTED ASSUALT THIRD; THE AMENDMENT PREJUDICED THE DEFENDANT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, vacating defendant’s conviction with leave to resubmit, determined the indictment should not have been amended at the end of the trial to charge defendant with assault third and attempted assault third, instead of assault second and attempted assault second as originally charged in the indictment. The indictment did not allege the use of a deadly weapon or dangerous instrument. The last minute amendment was an effort to correct that charging flaw. However the People’s theory, before the grand jury and at trial, was defendant used a PVC pipe as a deadly weapon or a dangerous instrument. But, because of the amendment, the jury was not asked to consider the deadly weapon or dangerous instrument element:

An indictment may be amended to correct “matters of form, time, place, names of persons and the like” (CPL 200.70[1]). An amendment must not “change the theory or theories of the prosecution as reflected in the evidence before the grand jury . . . or otherwise tend to prejudice the defendant on the merits” (CPL 200.70[1]). …

… [N]otice could not have been given, because the indictment’s deficiency was not discovered until one day before the trial concluded. This unorthodox correction is not the kind of procedure sanctioned under CPL 200.70 or 300.50. The amendment was therefore not a mere correction of a “misnomer” of the offense in the accusatory clauses of the indictment … . …

… [D]efendant was prejudiced by the amendment. The People’s theory before the grand jury was that Bari’s injuries were caused by the use of a dangerous instrument, i.e., the bike rental sign. The prosecutor in her opening statement made references to the bike rental sign. She did so in her summation even after the court deleted the original second-degree hate crimes and replaced them with third-degree hate crimes. Further, on the People’s case, the prosecutor elicited testimony from Bari to support this theory. Thus, the People tried the case from inception to conclusion, and defendant mounted a defense, on the theory that a deadly weapon or a dangerous instrument was used in the commission of the hate crimes. On the last day of the trial, however, the court amended the indictment and charged the jury with variations of third-degree assault, which do not require proof of the existence of a deadly weapon or a dangerous instrument. Thus, after hearing evidence of a dangerous instrument throughout the trial, the jury received instructions that did not require it to find that the People had proven the existence of a dangerous instrument beyond a reasonable doubt to convict defendant of the third-degree hate crimes or the third-degree assault. This result was an impermissible change in the theory of the prosecution. People v Winston, 2022 NY Slip Op 02080, First Dept 3-24-22

Practice Point: Here the indictment was flawed because it charged assault second but did not allege use of a deadly weapon or a dangerous instrument. The People’s theory at trial was that defendant used a PVC pipe as a deadly weapon or a dangerous instrument. A day before the end of the trial, the judge amended the indictment to charge assault third. The amendment was improper and prejudiced the defendant.

 

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A NOTE EXECUTED BY ONE TENANT BY ENTIRETY AND SECURED BY REAL PROPERTY OWNED BY BOTH TENANTS BY THE ENTIRETY, DONE WITHOUT THE OTHER TENANT BY THE ENTIRETY’S CONSENT, DOES NOT ENCUMBER THE OTHER TENANT BY THE ENTIRETY’S INTEREST IN THE REAL PROPERTY (SECOND DEPT).

The Second Department determined the note executed by Gladys Pajuelo and secured by a mortgage on property owned by Gladys and Celso Pajuelo as tenants by the entirety, done without Celso’s consent, did not encumber Celso’s interest in the property. Therefore the bank in this foreclosure action did not have an equitable mortgage on Celso’s interest:

Supreme Court properly denied that branch of the plaintiff’s motion which was for leave to enter a default judgment against Celso F. Pajuelo, declaring that the plaintiff has an equitable mortgage on Celso F. Pajuelo’s interest in the property. Where spouses own property as tenants by the entirety, a conveyance by one spouse, to which the other has not consented, cannot bind the entire fee … . Here, the mortgage executed by Gladys F. Pajuelo did not encumber Celso F. Pajuelo’s interest in the property, and the plaintiff failed to submit evidence to demonstrate its entitlement to an equitable mortgage against Celso F. Pajuelo’s interest in the property … . Nationstar Mtge., LLC v Pajuelo, 2022 NY Slip Op 02006, Second Dept 3-23-22

Practice Point: Where real property is owned by tenants by the entirety, and one of the tenants by the entirety, without the consent of the other, executes a note secured by the real property, the other tenant by the entirety’s interest is not encumbered.

 

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THE MATERIAL MISREPRESENTATION THAT THERE WAS NO SWIMMING POOL ON THE PROPERTY JUSTIFIED THE DISCLAIMER OF COVERAGE FOR FIRE DAMAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant insurer (Union Mutual) was entitled to rescission of the insurance policy based upon a material misrepresentation made by the plaintiff (the insured). The plaintiff-insured represented that there was no swimming pool on the property. After the property was damaged by fire, the insurer learned there was a swimming pool on the property and disclaimed coverage:

… Union Mutual established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff made misrepresentations on his application for insurance, and that it would not have issued the 2017 policy and the 2018 policy had the plaintiff disclosed that there was a swimming pool on the property … .. Union Mutual submitted with its motion for summary judgment an affidavit from its underwriter, along with Union Mutual’s Underwriting Guidelines for its New York Landlord/Tenant Property and General Liability Package Program, which provide that swimming pools are an unacceptable risk, and if a potential insured answered “yes” to the question on the application asking if there is a swimming pool on the property, no policy of insurance would issue. With these undisputed facts, Union Mutual demonstrated as a matter of law that the misrepresentations in the plaintiff’s applications for insurance were material. In opposition, the plaintiff failed to raise a triable issue of fact.

A material misrepresentation, even if innocent or unintentional, is sufficient to warrant rescission of an insurance policy … . Nabatov v Union Mut. Fire Ins. Co., 2022 NY Slip Op 02005, Second Dept 3-23-22

Practice Point: Here the insured represented to the insurer that there was no swimming pool on the property. After a fire the insurer learned there was a swimming pool on the property. The insurer demonstrated it would not have issued the policy if it had been aware of the swimming pool. The misrepresentation was therefore “material” and justified the denial of coverage for the fire.

 

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THE METEOROLOGIST’S AFFIDAVIT SUBMITTED TO SHOW THERE WAS A STORM IN PROGRESS WHEN PLAINTIFF SLIPPED AND FELL WAS NOT ACCOMPANIED BY THE RECORDS RELIED UPON BY THE AFFIANT; THE AFFIDAVIT THEREFORE HAD NO PROBATIVE VALUE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the parking-lot-owner’s (RGP’s) motion for summary judgment in this slip and fall case should not have been granted under the storm-in-progress rule. The meteorologist’s affidavit was not accompanied by the records the affidavit relied upon:

… RGP failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it based on the storm in progress rule. In support of its motion, RGP relied upon an affidavit and report of a meteorologist who opined that a storm was in progress at the time the plaintiff allegedly slipped and fell on ice. However, copies of the records upon which the meteorologist relied in forming his opinion were not attached to the report, and thus, the report has no probative value … . Canciani v Stop & Shop Supermarket Co., LLC, 2022 NY Slip Op 01986, Second Dept 3-23-22

Practice Point: An affidavit submitted to prove the contents of records which are not attached has no probative value.

 

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IN THIS FORECLOSURE ACTION, THE FAILURE TO ATTACH THE RELEVANT BUSINESS RECORDS, AS WELL AS THE FAILURE TO PROVIDE PROOF OF MAILING, RENDERED THE PROOF OF COMPLIANCE WITH THE NOTICE-OF-DEFAULT PROVISIONS OF THE MORTGAGE INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate compliance with the notice-of-default provisions of the mortgage in this foreclosure action:

… [T]he plaintiff failed to establish … that it complied with the notice of default provisions of the mortgage, which … required the plaintiff to send the notice by first-class mail to the subject property and to provide a 30-day cure period. Copies of the notice without proof of mailing, along with the affidavit of a representative of the loan servicer averring, based upon her review of unspecified business records which were not attached to the affidavit, that such a notice of default was sent on an unspecified date, was insufficient to satisfy the plaintiff’s prima facie burden … .Bank of Am., N.A. v Shirazi, 2022 NY Slip Op 01984, Second Dept 3-23-22

Practice Point: Although most foreclosure-reversals are due to the bank’s failure to demonstrate compliance with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304, here the bank failed to demonstrate compliance with the notice-of-default provisions in the mortgage document.

 

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