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THE TRAFFIC AND PARKING VIOLATIONS BUREAU (TPVA) IS A CRIMINAL COURT WHICH CANNOT ISSUE A DEFAULT JUDGMENT WHEN A DEFENDANT FAILS TO APPEAR FOR A TRAFFIC-INFRACTION TRIAL; IN CONTRAST, A TRAFFIC VIOLATIONS BUREAU (TVB) IS AN ADMINISTRATIVE AGENCY, NOT A CRIMINAL COURT, AND MAY ISSUE A DEFAULT JUDGMENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the Suffolk County Traffic and Parking Violations Bureau (TPVA) is a criminal court which cannot issue a default judgment when a defendant who has pled not guilty does not show up for a traffic-infraction trial. On the other hand, a Traffic Violations Bureau (TVA) is not a criminal court and may issue a default judgment:

Defendants in these cases were prosecuted in district court … . Each defendant timely appeared before the TPVA, pleaded not guilty, and requested a trial. They were each given a document indicating the date and time of the trial with a warning of the repercussions for failure to appear: “THE COURT MAY ISSUE A WARRANT FOR YOUR ARREST OR PROCEED IN YOUR ABSENCE AND YOU WILL BE LIABLE FOR ANY SENTENCE AND/OR FEES IMPOSED, INCLUDING INCARCERATION, AND other penalties permitted by law.” Despite the warning notice, defendants failed to timely appear on their respective trial dates. No attempt was made by the People to try defendants in absentia. Rather, a judicial hearing officer of the TPVA rendered default judgments against them and imposed fines. …

The issue before us is whether a TPVA judicial hearing officer is authorized under the Vehicle and Traffic Law to render a default judgment against a defendant charged with a traffic infraction who first enters a timely not guilty plea but then fails to appear for trial. We answer that question in the negative. …

Unlike TPVAs, … the TVB is not a criminal court … . It is … an administrative tribunal where, in cities having a population of one million or more, traffic infractions may be disposed of in an administrative hearing held before a hearing officer appointed by the Commissioner of Motor Vehicles … . In contrast to trials conducted before TPVAs, hearings before the TVB are not governed by the CPL … . People v Iverson, 2021 NY Slip Op 03347, CtApp 5-27-21

 

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ONCE THE APPELLATE DIVISION DECIDED THE NYC DEPARTMENT OF BUILDINGS ACTED RATIONALLY IN APPROVING THE USE OF A BUILDING AS A HOMELESS SHELTER ITS JUDICIAL REVIEW WAS DONE; THE APPELLATE DIVISION SHOULD NOT HAVE REMITTED THE MATTER FOR A HEARING ON THE SAFETY OF THE BUILDING (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the Appellate Division did not have the authority to send the matter back for a hearing after finding the NYC Department of Buildings (DOB) acted rationally when it approved the use of a building as a homeless shelter:

The Appellate Division erred in remitting to Supreme Court for a hearing on whether the building’s use as a homeless shelter was “consistent with general safety and welfare standards.” In this CPLR article 78 proceeding, the scope of judicial review does not extend past the question of whether the challenged determinations were irrational, which is a question of law (see CPLR 7803[3] …). Upon concluding that an authorized agency has reviewed a matter applying the proper legal standard and that its determination has a rational basis, a court cannot second guess that determination by granting a hearing to find additional facts or consider evidence not before the agency when it made its determination … . Accordingly, it was improper for the Appellate Division to remit for plenary judicial proceedings to address “general safety and welfare” issues, thereby contravening the applicable standard of judicial review in this context and inviting inconsistent enforcement of the Building Code. Matter of West 58th St. Coalition, Inc. v City of New York, 2021 NY Slip Op 03346, CtApp 5-27-21

 

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DEFENDANT DRIVER RAISED A QUESTION OF FACT ABOUT WHETHER THE DRIVER OF THE CAR IN WHICH PLAINTIFF WAS A PASSENGER WAS NEGLIGENT; THE FACT THAT THE DEFENDANT’S OUT-OF-STATE AFFIDAVIT DID NOT HAVE A CERTIFICATE OF CONFORMITY DID NOT AFFECT ITS VALIDITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for summary judgment by Ellis, the driver of the car in which plaintiff was a passenger, should have been denied. And the cross motion for summary judgment by plaintiff should have been denied. The defendant driver’s description of the accident raised a question of fact whether Ellis was negligent. The fact that the defendant driver submitted an out-of-state affidavit without a certificate of conformity was not a fatal defect:

… [T]he … defendants raised a triable issue of fact through the affidavit of John Koranteng, the alleged operator of the … defendants’ vehicle. Koranteng averred that he checked to make sure that the left side of his vehicle was clear before he began to initiate a right turn onto Brooklyn Avenue. Koranteng claimed that, while he was turning right, the collision occurred when Ellis’s vehicle attempted to aggressively pass him on his driver’s side … . Ellis’s contention that Koranteng’s affidavit was not in admissible form and, therefore, should not have been considered, is without merit, since the absence of a certificate of conformity for an out-of-state affidavit is not a fatal defect … .

… [T]he Supreme Court should have denied the plaintiff’s cross motion for summary judgment on the issue of liability insofar as asserted against the … defendants. … [T]he … defendants raised a triable issue of fact through the submission of … Koranteng’s affidavit … . ” … [I]f triable issues of fact are raised by the defendants . . . summary judgment on the issue of liability must be denied, even if the moving plaintiff was an innocent passenger” … . Wise v Boyd Bros. Transp., Inc., 2021 NY Slip Op 03345, Second Dept 5-26-21

 

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THE BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not present sufficient evidence of standing to bring the foreclosure action. Therefore the bank’s motion for summary judgment should not have been granted:

Generally, in order to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must produce the mortgage, the unpaid note, and evidence of the default … . Where the plaintiff’s standing has been placed in issue by the defendants’ answer, the plaintiff must prove its standing as part of its prima facie showing … .

Here, contrary to the Supreme Court’s determination, the plaintiff failed, prima facie, ]to establish its standing to commence this action. The copy of the note submitted in support of the plaintiff’s motion contained an additional page, entitled “Allonge to Note,” which contained a special indorsement from the original lender to the plaintiff. However, … the plaintiff did not submit any evidence to establish that the purported allonge was so firmly affixed to the note as to become a part thereof (see UCC 3-202[2] …). Wells Fargo Bank, N.A. v Maleno-Fowler, 2021 NY Slip Op 03344, Second Dept 5-26-21

 

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PLAINTIFF’S EXPERT RAISED ISSUES OF FACT ABOUT WHETHER EXPOSURE TO ASBESTOS CAUSED THE INJURY TO PLAINTIFF; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert raised questions of fact about whether exposure to asbestos injured plaintiff:

“In toxic tort cases, an expert opinion on causation must set forth (1) a plaintiff’s exposure to a toxin, (2) that the toxin is capable of causing the particular injuries plaintiff suffered ](general causation) and (3) that the plaintiff was exposed to sufficient levels of the toxin to cause such injuries (specific causation)” … . “[T]here must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of the agent that are known to cause the kind of harm that the plaintiff claims to have suffered” … . “[I]t is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community” … .

… [T]he plaintiffs submitted expert affidavits raising triable issues of fact as to both general and specific causation … . The conclusions of the plaintiffs’ experts were sufficiently supported by studies and medical literature, and demonstrated specific causation through a scientific method … . The experts’ conflicting interpretations of the underlying studies and literature presented a credibility battle between the parties’ experts, which is properly left to a jury for its resolution … . Pistone v American Biltrite, Inc., 2021 NY Slip Op 03341, Second Dept 5-26-21

 

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DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL AT THE SORA RISK-LEVEL ASSESSMENT PROCEEDING IN A CHILD PORNOGRAPHY CASE; COUNSEL MADE AN ARGUMENT WHICH WAS EXPRESSLY REJECTED BY THE COURT OF APPEALS AND THE 2ND DEPARTMENT (SECOND DEPT).

The Second Department determined defense counsel was ineffective the SORA risk-level assessment proceeding:

The defendant was convicted, in federal court, of possession of child pornography … . After a hearing to determine his level of risk pursuant to the Sex Offender Registration Act … , at which the defendant was assessed 30 points under risk factor 3 (number of victims), 30 points under risk factor 5 (age of victims), and 20 points under risk factor 7 (victims were strangers), the defendant was designated a level two sex offender. …

A defendant has a right to the effective assistance of counsel in a SORA proceeding … . Here, the only argument that defense counsel made at the hearing—challenging the assessment of points under risk factors 3 and 7 in light of the nature of the offense—had been soundly rejected by the Court of Appeals … and this Court … . Under the particular circumstances of this case, defense counsel’s failure to apply, instead, for a downward departure on the basis of an overassessment of risk level due to application of points under risk factors 3 and 7 … , demonstrated a misunderstanding of the relevant law and amounted to ineffective assistance of counsel … . People v Bertrand, 2021 NY Slip Op 03338, Second Dept 5-25-21

 

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THERE WAS NO EVIDENCE DEFENDANT KNEW THE COMPLAINANT WAS A 14-YEAR-OLD RUNAWAY WHEN SHE STAYED AT HIS HOUSE; THE EVIDENCE OF KIDNAPPING WAS LEGALLY INSUFFICIENT (SECOND DEPT).

The Second Department, reversing defendant’s kidnapping conviction, determined the evidence was legally insufficient:

“A person is guilty of kidnapping in the second degree when he or she] abducts another person” … . “‘Abduct’ means to restrain a person with intent to prevent his [or her] liberation by . . . (a) secreting or holding him [or her] in a place where he [or she] is not likely to be found” … . “‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such [a] manner as to interfere substantially with his [or her] liberty by moving him [or her] from one place to another, or by confining him [or her] either in the place where the restriction commences or in a place to which he [or she] has been moved, without consent and with knowledge that the restriction is unlawful”… . “A person is so moved or confined ‘without consent’ when such is accomplished by . . . any means whatever, including acquiescence of the victim, if he [or she] is a child less than sixteen years old . . . and the parent, guardian or other person or institution having lawful control or custody of him [or her] has not acquiesced in the movement or confinement” … .  [T]he evidence does not establish that the defendant had “knowledge that the restriction [of the complainant’s movements was] unlawful” … , as the record fails to establish that the defendant knew that the complainant was under the age of 16 or that he knew she had run away and that her parents were looking for her, during a period of three days to one week that she was staying at his house … . Moreover, the evidence also failed to establish that the defendant intentionally restricted the complainant’s movements by confining her … , or that he intended to prevent her liberation by “secreting or holding [her] in a place where [she was] not likely to be found” … . Without establishing that the defendant knew that the complainant was a 14-year-old runaway, the People failed to establish that the defendant possessed the requisite intent to restrict her movements by confining her, or to prevent her liberation by keeping her hidden from her parents in a place where she was unlikely to be found. People v Legrand, 2021 NY Slip Op 03333, Second Dept 5-26-21

 

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FAMILY COURT PROPERLY CONSIDERED THE BEST INTERESTS OF THE TWO CHILDREN IN ITS PLACEMENT DECISION; STRONG TWO-JUSTICE DISSENT (SECOND DEPT).

The Second Department, over an extensive two-justice dissent, determined Family Court properly considered the best interests of two children in deciding where the children should be place. The dissent disagreed. The decision is too detailed and fact-specific to fairly summarize here:

At its essence, this appeal presents a circumstance where everyone involved—the foster mother, the godmother, the attorney for the child, ACS, and the Family Court—agreed that the child and his half-sibling should be kept together. The court found that both the godmother’s home and the foster mother’s home were entirely suitable, but in choosing between the two, properly noted that the half-sibling’s father did not consent to the half-sibling being placed anywhere except with the godmother. The court’s consideration of that fact did not mean that the child’s best interests were not globally considered, but was instead a relevant and necessary fact that the court needed to take into account in determining how to best promote the child’s best interests and the obvious benefit to him of keeping the two half-siblings together as each other’s sole living, known, biological relatives. It was not error for the court to do so, and in fact, the court would have been derelict in its duties had it failed to do so. Matter of Adonnis M. (Kenyetta M.), 2021 NY Slip Op 03322, Second Dept 5-26-21

 

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FAMILY COURT SHOULD NOT HAVE ORDERED THE PARTIES TO EQUALLY SHARE THE COSTS OF FATHER’S SUPERVISED VISITATION WITHOUT EVALUATING THE PARTIES’ FINANCES (SECOND DEPT).

The Second Department determined Family Court properly found father had committed the family offense of harassment and properly ordered therapeutic supervised parental access for father. However, Family Court should not have order the parties to equally share the expense of supervised parental access without evaluating the parties’ ability  to pay:

The Family Court should not have directed the parties to equally share the costs of the father’s supervised parental access, without evaluating the parties’ “economic realities,” including the father’s ability to pay and the actual cost of each visit … . Accordingly, we remit the matter to the Family Court, Orange Country, for a hearing to resolve those issues, and a determination thereafter regarding the parties’ respective shares of the costs for the father’s supervised therapeutic parental access. Matter of Livesey v Gulick, 2021 NY Slip Op 03321, Second Dept 5-26-21

 

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FATHER’S ABILITY TO BRING FUTURE PETITIONS FOR CUSTODY SHOULD NOT HAVE BEEN CONDITIONED UPON HIS UNDERGOING TREATMENT OR COUNSELING (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s ability to bring future custody petitions should not have been condition upon father’s undergoing counseling or treatment:

A court deciding a custody proceeding may “direct a party to submit to counseling or treatment as a component of a [parental access] or custody order” … . “A court may not, however, order that a parent undergo counseling or treatment as a condition of future [parental access] or reapplication for [parental access] rights” … . Here, the Family Court erred in conditioning the filing of any future petitions by the father to modify parental access upon his successful completion of an anger management class and a negative drug test, and we modify the order so as to eliminate that condition. Matter of Hardy v Hardy. 2021 NY Slip Op 03320. Second Dept 5-26-21

 

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