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THE JUDGE SHOULD NOT HAVE DISMISSED THE COMPLAINT SUA SPONTE; ALTHOUGH DEFENDANT WAS NOT SERVED, DEFENDANT’S APPEARANCE PRO SE WAIVED ANY LACK-OF-JURISDICTION ARGUMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the complaint and noted that a party (Taddeo) who has not been served, but who appears in the action pro se, has waived a lack-of-jurisdiction argument:

“A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Moreover, a ministerial dismissal, made without notice and without benefit of further judicial review, is erroneous … . Under such circumstances, the court should direct the parties to show cause why the complaint should not be dismissed, and enter a formal order of dismissal on notice to the parties… .

Here, the Supreme Court never ordered the plaintiff to show cause why its failure to serve [defendant] should not result in the dismissal of the complaint. The court had only directed the plaintiff to provide certain information, and the plaintiff did so.

The Supreme Court also erred in concluding that the failure to serve [defendant] constituted a jurisdictional defect. “An appearance by a defendant in an action is deemed to be the equivalent of personal service of a summons upon him [or her], and therefore confers personal jurisdiction over him [or her], unless he [or she] asserts an objection to jurisdiction either by way of motion or in his [or her] answer” . Here, by filing a pro se answer that did not include an objection to jurisdiction, Taddeo waived any argument that the court lacked personal jurisdiction over him … . Bayview Loan Servicing, LLC v Taddeo, 2021 NY Slip Op 06147, Second Dept 11-10-21

 

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THE JUDGE DID NOT MAKE THE REQUIRED INQUIRY RE: DEFENDANT’S WAIVER OF THE RIGHT TO COUNSEL IN THIS CUSTODY PROCEEDING BEFORE ALLOWING DEFENDANT TO PROCEED WITHOUT AN ATTORNEY; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new custody hearing, determined the judge did not make the required inquiry before allowing defendant to waiver her right to counsel:

The parent of any child seeking custody or contesting the substantial infringement of his or her right to custody of such child must be advised “before proceeding that he or she has the right to be represented by counsel of his or her own choosing, of the right to have an adjournment to confer with counsel, and of the right to have counsel assigned by the court in any case where he or she is financially unable to obtain the same” (Family Ct Act § 262[a][v]; see Judiciary Law § 35[8] …). A party may waive the right to counsel, provided he or she makes a knowing, voluntary, and intelligent waiver of that right … . Here, the Supreme Court failed to conduct the requisite inquiry before allowing the defendant to proceed pro se with regard to the hearing and determination of the defendant’s motions to modify and/or vacate the custody order … . Wondemagegehu v Edem, 2021 NY Slip Op 06213, Second Dept 11-10-21

 

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THE INSTRUCTION THAT MOTHER NOT “EXPOSE” THE CHILD TO ACTIVITIES NOT IN KEEPING WITH THE CHILD’S FAITH, WHICH IMPLICITLY REQUIRED THAT THE CHILD NOT BE “EXPOSED” TO MOTHER’S LGBTQ IDENTITY, IS NOT ENFORCEABLE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the instruction that mother not “expose” the child to activities not in keeping with religious requirements during periods of her parental access was unenforceable. Mother identified as a member of the LGBTQ community, and considered herself an Orthodox Jew:

… [A] court oversteps constitutional limitations when it purports to compel a parent to adopt a particular religious lifestyle. “… ‘[I]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise'” … . A religious upbringing provision “should not, and cannot, be enforced to the extent that it violates a parent’s legitimate due process right to express oneself and live freely” … . Thus, where the effect of a religious upbringing provision is to compel a parent to himself or herself practice a religion, rather than merely directing the parent to provide the child with a religious upbringing, the provision must be stricken … .

… [T]he challenged restriction does not expressly require the plaintiff to herself comply with the rules of the child’s Orthodox Jewish Chasidic faith during periods of parental access. … [T]he provision in forbidding her to “expose” the child to any activities which violate the child’s Orthodox Jewish Chasidic faith has the same effect … . The only way for the plaintiff to ensure her compliance with the restriction is for her to comply with all religious requirements of the child’s faith during her periods of parental access, lest she “expose” the child to activities not in keeping with those religious requirements. … The defendant [father] was especially concerned that the child would be exposed to people involved in a “gay lifestyle” … . Such restrictions on a parent’s ability to “express oneself and live freely” go beyond requiring a noncustodial parent to support and enable the child’s religious practices, and impermissibly infringe on the noncustodial parent’s rights … . Weichman v Weichman, 2021 NY Slip Op 06211, Second Dept 11-10-21

 

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FAILURE TO COMPLY WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 CAN BE RAISED AT ANY TIME; HERE IT WAS RAISED IN OPPOSITION TO THE MOTION TO CONFIRM THE REFEREE’S REPORT; THE PROOF OF COMPLIANCE WAS INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court’s grant of summary judgment to the bank in this foreclosure action, noted that the failure to comply with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304 can be raised at any time. Here it was raised in opposition to the bank’s motion to confirm the referee’s report:

… [T]he plaintiff failed to establish that it complied with the requirements of RPAPL 1304. The affidavits of Armenia L. Harrell and La’Shana Farrow, both of whom are officers of Wells Fargo Bank, N.A. (hereinafter Wells Fargo), the servicing agent of the plaintiff, were insufficient to establish that the plaintiff complied with RPAPL 1304. Both Harrell and Farrow attested that they were familiar with Wells Fargo’s records and record-keeping practices. Farrow averred, inter alia, that the plaintiff complied with RPAPL 1304 by mailing the required notices. The record indicates that the 90-day notices appear to have been mailed by ASC (America’s Servicing Company). However, neither Harrell or Farrow attest that they personally mailed the notices or that they were familiar with the mailing practices and procedures of ASC. Therefore, they failed establish proof of standard office practice and procedures designed to ensure that items are properly addressed and mailed … . Moreover, the plaintiff failed to send individually addressed notices to each borrower; rather, the 90-day notices were jointly addressed to the [defendants]. U.S. Bank N.A. v Krakoff, 2021 NY Slip Op 06209, Second Dept 11-10-21

 

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AWARDING A PARENT DECISION-MAKING AUTHORITY FOR ANY MAJOR CHILD-RELATED ISSUE IS TANTAMOUNT TO MODIFYING A CUSTODY ARRANGEMENT TO AWARD SOLE CUSTODY TO THE DECISION-MAKING PARENT; SUPREME COURT SHOULD HAVE HELD A HEARING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the custody arrangement should not have been modified in the absence of a hearing. The court noted that the award of decision-making authority for any major child-related issue on which the parties cannot agree is tantamount to the award of sole custody:

The Supreme Court erred by, in effect, granting, without a hearing, that branch of the defendant’s motion which was to modify the parties’ stipulation of settlement and judgment of divorce so as to award her sole legal custody of the child to the extent of awarding her final decision-making authority as to any major child-related issue about which the parties could not agree, and denying that branch of the plaintiff’s cross motion which was to modify the stipulation of settlement and judgment of divorce so as to award him sole legal custody. “‘[A] court may grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party'” … . … There can be no question that the award of final decision-making authority is not “dramatically unlike” the relief requested, as decision making is part and parcel to legal custody. … [T]he court erred in granting this award without a hearing. The court’s determination that “neither party has established change in circumstances warranting an award of sole custody to either parent” is incongruous with the court’s determination to award the defendant final decision-making authority. Since it appears that the court believed that the parties made an evidentiary showing of a change in circumstances demonstrating a need for a change of decision-making authority to ensure the child’s best interests, a hearing on that issue was required … .  Trazzera v Trazzera, 2021 NY Slip Op 06208, Second Dept 11-10-21

 

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A NOTICE OF CLAIM IS NOT A PLEADING AND THEREFORE NEED NOT BE ANNEXED TO A SUMMARY JUDGMENT MOTION; ALTHOUGH PLAINTIFF IN THIS LABOR LAW 240 (1) AND 241 (6) ACTION ESTABLISHED HE FELL FROM A SCAFFOLD, HE DID NOT ESTABLISH THE FALL WAS DUE TO INADEQUATE SAFETY EQUIPMENT; HIS MOTION FOR SUMMARY JUDGMENT WAS PROPERLY DENIED ON THAT GROUND (SECOND DEPT).

The Second Department determined plaintiff’s motion for summary judgment in this Labor Law 240 (1) and 2411 (6) scaffold-fall case was properly denied on evidentiary grounds, but it was not properly denied because the notice of claim was not included with the motion papers. Although the pleadings must be annexed to a summary judgment motion, a notice of claim is not a pleading. The motion was properly denied on evidentiary grounds because it was not demonstrated the fall was the result of a failure to provide adequate safety equipment:

While the defendant correctly contends that CPLR 3212(b) requires that motions for summary judgment be supported by a copy of the pleadings, a notice of claim is not a pleading … . …

… [T]he plaintiff relies solely on his General Municipal Law § 50-h hearing testimony and his deposition testimony, which merely established that he fell from a scaffold. The plaintiff failed to address whether there were scaffold rails, possible tie off points for a harness, or some alternative fall protection. Without more, the plaintiff’s testimony that he “moved [his] foot” to the left, causing him to step off of the scaffold and into an “empty space,” and that “there was nothing there because [he] stepped on it and . . . thought it was something solid” are insufficient … . Torres v New York City Hous. Auth., 2021 NY Slip Op 06207, Second Dept 11-10-21

 

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DEFENDANT’S UNLAWFUL IMPRISONMENT CONVICTION MERGED WITH OFFENSES OF WHICH DEFENDANT WAS ACQUITTED; ALTHOUGH THE ISSUE WAS NOT PRESERVED FOR APPEAL, THE CONVICTION WAS VACATED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, applying the merger doctrine and considering the unpreserved issue in the interest of justice, determined the unlawful imprisonment conviction must be vacated:

[Defendant was convicted] of coercion in the first degree, unlawful imprisonment in the first degree, criminal obstruction of breathing or blood circulation, menacing in the second degree, reckless endangerment in the second degree, unlawful fleeing a police officer in a motor vehicle in the third degree, and reckless driving … . * * *

… [U]pon exercising our interest of justice jurisdiction, we conclude that the merger doctrine precludes the defendant’s conviction of unlawful imprisonment in the first degree because the confinement of the complaining witness in the defendant’s car was only the incidental means to the accomplishment of the conduct underlying the counts of which the defendant was acquitted … . Thus, the conviction of unlawful imprisonment in the first degree must be vacated and that count of the indictment dismissed. The defendant’s unpreserved contention that the merger doctrine applies to other offenses for which he was convicted is without merit … . People v Sims, 2021 NY Slip Op 06200, Second Dept 11-10-21

 

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ALTHOUGH DEFENDANT PLED GUILTY TO AN ARMED FELONY, HE WAS AN “ELIGIBLE YOUTH” ENTITLED TO CONSIDERATION WHETHER MITIGATING CIRCUMSTANCES JUSTIFIED AFFORDING HIM YOUTHFUL OFFENDER STATUS (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined Supreme Court should have found defendant to be an “eligible youth” and then considered whether mitigating circumstances warranted youthful offender status:

While the ultimate determination as to whether an “eligible youth” (CPL 720.20[1]) should be afforded youthful offender status must be made “[a]fter receipt of a written report of the investigation and at the time of pronouncing sentence” … , there is no such requirement with respect to the initial determination as to whether the defendant is an “eligible youth” … .

… Supreme Court improvidently exercised its discretion in finding that the defendant was ineligible for youthful offender status. Pursuant to CPL 720.10(3), although the defendant entered a plea of guilty to an armed felony offense in which he was the sole participant, he could be eligible for youthful offender status if there were “mitigating circumstances that bear directly upon the manner in which the crime was committed” … . Such mitigating circumstances include “‘a lack of injury to others or evidence that the defendant did not display a weapon during the crime'” … . Here, there is no indication in the record that the defendant displayed the firearm which was recovered from his backpack, that the defendant caused or threatened any injury to another individual, or that the defendant intended to use the firearm against another individual. Consequently, the court should have determined that the defendant is an “eligible youth,” and thus, proceeded to determine whether the defendant is entitled to youthful offender status pursuant to CPL 720.20(1) … . People v Morris, 2021 NY Slip Op 06195, Second Dept 11-10-21

 

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DEFENDANT WAS DENIED HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BY A DETECTIVE’S TESTIM0NY ABOUT THE SUBSTANCE OF A STATEMENT ALLEGEDLY MADE BY A NONTESTYING ACCOMPLICE; THE ERROR WAS PRESERVED FOR APPEAL BY THE DEFENDANT HIMSELF, NOT DEFENSE COUNSEL, CITING CRAWFORD V WASHINGTON (SECOND DEPT),

The Second Department, reversing the murder conviction and ordering a new trial, in a full-fledged opinion by Justice Chambers, determined a detective’s testimony about what a nontestifying accomplice (Andy Dabydeen) said violated defendant’s right to confront the witnesses against him. Although defense counsel did not object to the detective’s testimony, the defendant himself objected after the fact, citing Crawford v Washington, 541 US 51, which preserved the issue for appeal:

After the defendant continued to deny any involvement in the murder, the detective confronted him by saying that “Andy had told us what had happened.” The detective further testified that, shortly thereafter, upon returning from the bathroom, the defendant reacted to that information by stating that he could not believe that Dabydeen had “snitched” on him. …

… [W]e find that the defendant’s objection—albeit made after the detective had finished testifying and the People had rested—was sufficiently specific to draw the Supreme Court’s attention to the Sixth Amendment Confrontation Clause problems attendant to the People’s use, as part of their case-in-chief, of Dabydeen’s out-of-court testimonial statement directly implicating the defendant in the murder. …

This is not to suggest that the People are precluded from giving some context to the defendant’s statement that Dabydeen had “snitched” on him. We merely emphasize that the People could have done so without disclosing the substance of Dabydeen’s incriminating statement … . People v Lockley, 2021 NY Slip Op 06192, Second Dept 11-10-21

 

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THE ISSUE WHETHER THE STATUTORY REQUIREMENT THAT OBJECTIONS TO CHILD SUPPORT ORDERS BE RULED ON WITHIN 15 DAYS WAS CONSIDERED ON APPEAL AS AN EXCEPTION TO THE MOOTNESS DOCTRINE; THE 15-DAY RULE IS MANDATORY AND MUST BE ENFORCED; THE MOTHER WAS ENTITLED TO ATTORNEY’S FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT BECAUSE HER ACTION WAS THE CATALYST FOR THIS DECISION (FIRST DEPT).

The First Department, reversing Family Court, in a full-fledged opinion by Justice Mazzarelli, determined: (1) the issue whether objections to child support rulings must be ruled on within 15 days (Family Court Act 439(a)) will be considered on appeal as an exception to the mootness doctrine; (2) under the Equal Access to Justice Act (EAJA) (CPLR 8600, et seq) mother-petitioner was entitled to attorney’s fees because her action served as a catalyst to this decision enforcing the 15-day rule:

The mother has established that this is not the first time in this case that the issue has arisen. Further, the issue is not likely to be resolved without application of the exception, because the Family Court can so easily obviate it by issuing a decision on the objections, albeit after the expiration of the 15 days. Courts have applied the exception under similar circumstances … . * * *

The statute is mandatory insofar as it plainly states that the court “shall,” within 15 days of an objection to a support award being fully submitted, issue a ruling on it … . * * *

Because the CAJ [Chief Administrative Judge, NYC Family Court] responded to the mother’s petition by assigning a Family Court judge to rule on her objections, and because the CAJ offers no substantial justification for not having enforced Family Court Act § 439(e) before the petition was filed, the matter should be remanded for an assessment of the mother’s attorneys’ fees under the State EAJA. Matter of Liu v Ruiz, 2021 NY Slip Op 06089, First Dept 11-9-21

 

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