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DEFENDANT WAS ENTITLED TO A HEARING ON WHETHER HE SHOULD BE OFFERED ALCOHOL AND SUBSTANCE ABUSE TREATMENT AS AN ELEMENT OF HIS SENTENCE; THE ISSUE SURVIVED DEFENDANT’S GUILTY PLEA (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on whether he is eligible for judicial diversion, i.e., alcohol or substance abuse treatment as an element of sentencing:

… “[A]ppellate review of the defendant’s claim that his application for judicial diversion was improperly denied is not foreclosed by his plea of guilty” … .

Pursuant to CPL 216.05(3)(a), upon receipt of a completed alcohol and substance abuse evaluation report … either the People or an “eligible defendant” … , may request a hearing on the issue of whether the eligible defendant should be offered alcohol or substance abuse treatment … .

… [T]he Supreme Court improvidently exercised its discretion in denying the defendant’s motion without first conducting a hearing pursuant to CPL 216.05(3)(a) on the issue of whether the defendant should be offered alcohol or substance abuse treatment. It is undisputed that the defendant is an “eligible defendant” as defined in CPL 216.00(1), and that an “alcohol and substance abuse evaluation” as defined in CPL 216.00(2) was completed. Based upon the conclusions contained in that evaluation, the court should have granted that branch of the defendant’s motion which was for a hearing on the issue of whether he should be offered alcohol or substance abuse treatment … . People v Commissiong, 2021 NY Slip Op 03193, Second Dept 5-19-21

 

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MANDAMUS PETITION TO COMPEL JUDGES TO ISSUE A WRITTEN ORDER DECIDING PETITIONER’S MOTION TO REARGUE HIS MOTION TO VACATE HIS CONVICTION GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, granted the petition to compel judges to issue a written order denying petitioner’s motion to reargue a motion to vacate his conviction:

Under the circumstances of this case, the petitioner demonstrated a clear legal right to a written order determining his motion for leave to reargue his prior motion pursuant to CPL 440.10, in the action entitled People v Cruz … and mandamus properly lies to compel the respondents to issue that written order, as well as an order determining the petitioner’s motion to reargue the “bench decision” … . Matter of Cruz v D’Emic, 2021 NY Slip Op 03175, Second Dept 5-19-21

 

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THE BANK’S PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 WAS INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proof of the bank’s compliance with the notice requirements of RPAPL 1304 in this foreclosure action was insufficient:

… [T]he plaintiff relied on an affidavit of James Green, a vice president of loan documentation for Wells Fargo, who averred that, based on his review of Wells Fargo’s business records, the required notice was sent by both certified mail and first-class mail. Green attached evidence of a certified article number, but did not attach any evidence of a first-class mailing. He did not aver that he had personal knowledge of the mailing, did not describe any standard office procedure designed to ensure that the notices are mailed, and did not attach domestic return receipts for the mailing … . Deutsche Bank Natl. Trust Co. v Ezeji, 2021 NY Slip Op 03164, Second Dept 5-19-2021

 

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APPELLANT PURCHASED THE PROPERTY WHILE THE FORECLOSURE ACTION WAS PENDING; APPELLANT’S MOTION TO INTERVENE SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined appellant’s motion to intervene in this foreclosure action should have been granted:

The plaintiff commenced this action to foreclose a mortgage given by the defendant Kathleen O. Nocella. Nocella defaulted in appearing in the action. During the pendency of the action, nonparty Henry Irving, LLC (hereinafter the appellant), acquired title to the subject property. In September 2017, the plaintiff moved, inter alia, for leave to enter a default judgment and for an order of reference. The appellant cross-moved, inter alia, for leave to intervene in the action. …

The appellant was entitled to intervene as of right pursuant to CPLR 1012(a) since it established that the representation of its interest by the parties would be inadequate, that the action involved the disposition of title to real property, and that it would be bound and adversely affected by a judgment of foreclosure and sale (see CPLR 1012[a][2], [3]; 6501 …). Contrary to the court’s determination, neither the fact that the appellant obtained its interest in the subject property after this action was commenced and the notice of pendency was filed, nor the fact that the defendants defaulted in answering or appearing, definitively bars intervention … . Moreover, since the appellant’s cross motion, inter alia, for leave to intervene was made before an order of reference or judgment of foreclosure and sale was issued, the plaintiff was not prejudiced by the timing of the cross motion … . Bank of Am., NA v Nocella, 2021 NY Slip Op 03159, Second Dept 5-19-21

 

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MUNICIPAL DEFENDANTS NOT LIABLE FOR INJURY CAUSED BY BICYCLE-RIDING IN PUBLIC PARK, DESPITE REGULATIONS PROHIBITING BICYCLE-RIDING; QUESTION OF FACT WHETHER THE DEFENDANT HIRED TO CARE FOR THE CHILD WHO STRUCK INFANT PLAINTIFF WAS AN EMPLOYEE OF THE CHILD’S FATHER (RESPONDEAT SUPERIOR) OR AN INDEPENDENT CONTRACTOR; QUESTIONS OF FACT WHETHER THE DEFENDANT CARE-GIVER WAS NEGLIGENT IN SUPERVISING THE CHILD (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court determined: (1) the municipal defendants were not liable for injuries to infant plaintiff caused when infant plaintiff was struck by another child (defendant Tully’s son) riding a bicycle in a municipal park where bicycle-riding was prohibited; (2) there was a question of fact whether defendant Bhawanie, who was employed by defendant Tully to care for Tully’s son, was defendant Tully’s employee or an independent contractor; (3) there were questions of fact whether Bhawanie was negligent:

… “[B]icycle riding in a playground . . . constitutes neither an ultrahazardous nor a criminal activity” … . … [T]he municipal defendants are not accountable to the infant plaintiff for their alleged failure to enforce their regulations prohibiting bicycle riding in the playground, since the promulgation and enforcement of such regulations do not constitute the assumption of a special relationship with the infant plaintiff such that a special duty was owed to him … . …

… [T]he evidence demonstrated that Bhawanie had worked for Tully and his wife continuously from 2007 through 2016, Tully and his wife dictated Bhawanie’s work schedule, and Bhawanie had to receive permission from Tully and his wife before engaging in certain activities with their children. Under the circumstances, a triable issue of fact exists on the issue of whether Bhawanie was an employee of Tully, such that vicarious liability may be imposed, or whether she was an independent contractor. …

“While a person caring for entrusted children is not cast in the role of an insurer, such an individual is obliged to provide adequate supervision and may be held liable for foreseeable injuries proximately resulting from the negligent failure to do so” … . C.B. v Incorporated Vil. of Garden City, 2021 NY Slip Op 03158, Second Dept 5-19-21

 

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THE DESIGNATING PETITION WAS PERMEATED BY FRAUD AND SHOULD HAVE BEEN INVALIDATED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the designating petition was permeated by fraud and should have been invalidated:

… [P]etitioner submitted clear and convincing evidence demonstrating that several subscribing witnesses attested to many signatures on the designating petition that they had not actually witnessed, and thus we agree with petitioner that the candidate’s designating petition is permeated with fraud. The parties correctly agree that the candidate was required to obtain signatures from 600 voters registered in the Democratic Party … . Numerous subscribing witnesses, acting on the candidate’s behalf, gathered 1,657 signatures, approximately 700 of which the Board invalidated. Petitioner challenged the signatures collected by five subscribing witnesses, who collected the overwhelming majority of the signatures on the designating petition; indeed, only slightly less than 200 valid signatures were collected by all of the other people who circulated petitions for the candidate. Supreme Court concluded that numerous signatures collected by those five subscribing witnesses were fraudulently procured for various reasons, including that there was no such voter, the voter had died, the voter had signed the designating petition more than once, or the voter was not the person who signed the designating petition. …

It is well settled that, “where the court finds misrepresentations in numerous instances, as it finds here, and nothing is [established] in rebuttal, it may well indulge in the presumption that there were many other misrepresentations and irregularities which time did not permit to be uncovered … . ” Matter of Saunders v Mansouri, 2021 NY Slip Op 03157, Fourth Dept 5-18-21

 

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PLAINTIFF INJURED HIS BACK WHEN HE LIFTED A HEAVY PIECE OF LUMBER TO ALLOW THE BLADES OF A FORKLIFT TO MOVE UNDER THE LUMBER; THERE WERE QUESTIONS OF FACT WHETHER LABOR LAW 240 (1) WAS APPLICABLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action should not have been granted (but did not explain why). Plaintiff injured his back when he lifted a heavy object to allow the blades of a forklift to be moved under it:

There are issues of fact as to “whether plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” … .

It appears that plaintiff was placed in a position that required him to lift an extremely heavy piece of lumber without any safety devices such as those listed in Labor Law § 240(1) in order to get the assistance of a forklift. We note, in this regard, that any action on plaintiff’s part in lifting the beam goes to the issue of comparative negligence, which is not a defense to a Labor Law § 240(1) claim, because the statute imposes absolute liability once a violation is shown … . Moreover, plaintiff was under no duty to demand an alternate safety device on his own because “[t]o place that burden on employees would effectively eviscerate the protections that the legislature put in place” … . “Indeed, workers would be placed in a nearly impossible position if they were required to demand adequate safety devices from their employers or the owners of buildings on which they work” … . Greene v Raynors Lane Prop. LLC, 2021 NY Slip Op 03114, First Dept 5-13-21

 

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THE PEOPLE FAILED TO TIMELY REDUCE THE BOND OBLIGATION TO A JUDGMENT, THEREFORE THE SURETY’S MOTION TO VACATE THE JUDGMENT FORFEITING THE $100,000 BAIL SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Renwick, determined the surety’s motion to vacate a judgment forfeiting $100,000 bail should have been granted. Although the surety’s (Empire’s) motion was untimely, the People had failed to timely reduce the bond obligation to a judgment. The opinion is too detailed to fairly summarize here:

In this special proceeding brought pursuant to CPLR 5015 by a surety of a defendant in a criminal case, the dispositive question is whether a surety is procedurally precluded from moving to vacate a judgment of bail forfeiture as untimely made. The People argue that the application is precluded because the surety did not move within the one-year time limit applicable to a motion for remission of the forfeiture, which, as set forth in CPL 540.30(2), “must be made within one year after the forfeiture of bail is declared.” We answer the question in the negative because the People must first comply with the statutory mandate of CPL 540.10(2) before they can raise the one-year statute of limitations of CPL 540.30(2). The People did not comply with CPLR 540.10(2), which requires the People to reduce a bond obligation to a judgment within 120 days after the forfeiture is declared by the court. People v Empire Bonding & Ins. Co., 2021 NY Slip Op 03120, First Dept 5-13-21

 

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THE SUPERIOR COURT INFORMATION WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT INCLUDE AN OFFENSE CHARGED IN THE FELONY COMPLAINT OR A LESSER INCLUDED OFFENSE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the superior court information (SCI) was jurisdictionally defective because it did not include an offense charged in the felony complaint or a lesser included offense:

… [D]efendant pleaded guilty, as charged in the SCI, to attempted robbery in the second degree under Penal Law §§ 110.00 and 160.10 (1), a different crime from robbery in the first degree (see Penal Law § 160.15 [2]), which was charged in the felony complaint. To be guilty of the offense charged in the SCI, defendant must have attempted to “forcibly steal[] property” and done so “when . . . aided by another person actually present” (Penal Law § 160.10 [1]). However, the crime of robbery in the first degree in the felony complaint charged defendant with “forcibly steal[ing] property” while “he or another participant in the crime . . . [i]s armed with a deadly weapon” (Penal Law § 160.15 [2]). “As charged here, [attempted] robbery in the second degree requires an element not required by robbery in the first degree — namely, that defendant be ‘aided by another person actually present'” … . Thus, inasmuch as it is possible to commit the crime charged in the felony complaint — robbery in the first degree — without committing the crime charged in the SCI — attempted robbery in the second degree — the crime charged in the SCI is not a lesser included offense of the former … .

Given that the SCI here did not contain either an offense charged in the underlying felony complaint or a lesser included offense thereof, the SCI upon which defendant’s plea was based was jurisdictionally defective … . People v McCall, 2021 NY Slip Op 03083, Third Dept 5-13-21

 

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CRITERIA FOR RECLASSIFICATION OF THE SORA RISK-LEVEL EXPLAINED (THIRD DEPT).

The Third Department explained the criteria for an application for risk-level reclassification under SORA:

Turning to the August 2019 order denying defendant’s application for reclassification, it was his burden “to establish by clear and convincing evidence that the requested modification [was] warranted, and the trial court’s determination will not be disturbed absent an abuse of discretion” … . County Court correctly rejected defendant’s efforts to relitigate various issues addressed in the 2018 order, as an application for reclassification is not “a vehicle for reviewing whether [a] defendant’s circumstances were properly analyzed in the first instance to arrive at his [or her] risk level” … . The sole new development pointed to by defendant was his evaluation by a psychiatrist after the issuance of the 2018 order, and he provided a letter in which the psychiatrist made preliminary findings that defendant neither met the diagnostic criteria for pedophilia nor merited a risk level three classification. The psychiatrist’s final report was not submitted for review, however, and the limited findings offered in the letter were rendered without a review of the raw data underlying the 2015 report and were based upon an account of defendant’s sexual history and offenses that “markedly differ[ed]” from the one referenced in it. The Board accordingly opposed a modification on the ground that defendant had not met his burden of proof and, under the circumstances presented, County Court did not abuse its discretion in agreeing with that assessment … . People v Stein, 2021 NY Slip Op 03086, Third Dept 5-13-21

 

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