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PLAINTIFF, WHO WAS BORN TWO YEARS BEFORE HIS MOTHER AND FATHER WERE MARRIED, WAS A DISTRIBUTEE OF HIS FATHER’S ESTATE; IT HAS YET TO BE DETERMINED WHETHER DEFENDANT YOUSEF FRAUDULENTLY REPRESENTED HE WAS THE SOLE HEIR WHEN HE TRANSFERRED REAL PROPERTY TO DEFENDANT BASMANOV (FIRST DEPT).

The First Department determined plaintiff demonstrated he was a distributee of his father’s estate. Plaintiff was born two years before his parents married and both his father’s and mother’s names were on plaintiff’s birth certificate. The court noted that it has yet to be established whether defendant Yousef fraudulently represented himself as the sole heir of the estate when he transferred real property to  defendant Basmanov:

Pursuant to Domestic Relations Law § 24, if a mother and father enter into a civil or religious marriage after the birth of their child, the child is legitimated for all purposes of New York law, even if the marriage is void or voidable (§ 24[1]). Therefore, such child automatically becomes a distributee of both birth parents, without any need to satisfy one of the paternity tests set forth in Section 4-1.2(a)(2) of the EPTL … .

Plaintiff was born in 1973, nearly two years before his parents subsequently married. At some point, the decedent-father’s name was placed on the plaintiff’s birth certificate, which, pursuant to Public Health Law § 4135(2) in effect at the time, required “the consent in writing of both the mother and putative father, duly verified, and filed with the record of the birth.” Pursuant to Public Health Law § 4103(2), “a certification of birth is prima facie evidence of the facts therein.” …

Defendant Basmanov’s argument that plaintiff failed to establish fraud necessary to warrant voiding the deeds by which defendant Yosef purported to transfer the decedent’s real property to himself, and then to her, is unavailing. Absent proof of fraud, a deed that purports to transfer more than the party owns is valid to the extent of transferring that party’s interest … ; however, it has yet to be established whether Yosef committed a fraudulent transfer by representing himself as the sole heir of the decedent’s estate in order to effectuate the transfer. Tiwary v Tiwary, 2020 NY Slip Op 07479, First Dept 12-10-20

 

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SUPREME COURT WENT BEYOND THE PERMISSIBLE REVIEW OF THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION’S DETERMINATION UNION CARBIDE’S FOIL REQUESTS WERE MOOT BECAUSE THE REQUESTED DOCUMENTS HAD BEEN PROVIDED; ONCE SUPREME COURT FOUND THAT THE FOIL REQUEST WAS NOT MOOT BECAUSE THERE WERE ADDITIONAL DOCUMENTS, IT SHOULD NOT HAVE GONE ON TO CONSIDER WHETHER THE ADDITIONAL DOCUMENTS WERE EXEMPT FROM DISCLOSURE (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court and remitting the matter to the Department of Environmental Conservation (DEP), determined Supreme Court exceeded its review powers with respect to DEP’s response to petitioner’s (Union Carbide’s) FOIL requests. Union Carbide sought documents relating to a study which determined the radioactive slag found at sites owned by Union Carbide was not the same as the radioactive slag produced by Union Carbide’s predecessor. The DEP had determined the FOIL requests were moot because the requested documents had been produced. Supreme Court properly held that the requests were not moot, but then improperly went on to consider whether the additional requested documents were protected from disclosure:

… [T]he administrative determination was that the first two FOIL requests were closed and that the administrative appeal with respect to the third FOIL request was moot given the production of responsive records prior to and following the filing of the appeal. As such, Supreme Court’s review was limited to whether the appeal was moot on the basis offered by the FOIL Appeals Officer, that being, whether all responsive records had been provided. By virtue of respondent’s in camera submission of additional documents to the court, it was evident that all responsive records had not been provided, and the administrative determination should have been annulled. However, in reviewing the subject documents and finding that those documents, with the exception of the site classification report, were statutorily exempted from disclosure, Supreme Court went beyond its mandate to “judge the propriety of [the agency’s] action solely by the grounds invoked by the agency” … . Accordingly, there was no basis for the court to determine that any exemption justified the withholding or redacting of the additional documents submitted to the court … . Inasmuch as the record demonstrates that additional documents responsive to petitioners’ FOIL requests exist and were not yet produced or examined by respondent’s FOIL Appeals Officer, we remit to Supreme Court to direct respondent to respond to petitioners’ FOIL requests by reviewing the additional subject documents and to determine in the first instance whether they are statutorily exempted from disclosure under the Public Officers Law. Matter of Union Carbide Corp. v New York State Dept. of Envtl. Conservation, 2020 NY Slip Op 07445, Second Dept 12-10-20

 

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THE QUI TAM COMPLAINT ALLEGING INSURERS FAILED TO ACCURATELY REPORT UNCLAIMED LIFE INSURANCE PROCEEDS, TO WHICH THE STATE IS ENTITLED, IN VIOLATION OF THE NEW YORK FALSE CLAIMS ACT SHOULD NOT HAVE BEEN DISMISSED AND THE MOTION TO AMEND THE COMPLAINT TO SPECIFY THE FRAUD ALLEGATIONS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff in this qui tam action should have been allowed to amend the complaint to specify the allegations of fraud against the defendant insurance companies. Unclaimed life insurance proceeds are supposed to escheat to the state. The lawsuit alleged the insurance companies had submitted false statements to the state to conceal the existence of life insurance proceeds to which the state is entitled, a violation of the New York False Claims Act (NYFCA). The First Department, in allowing the complaint to be amended to specify the fraud allegations, held that the 10-year statute of limitations applied to the filing of the alleged false reports:

… [P]laintiff adequately alleged that defendants knowingly filed false reports with the State which failed to identify escheatable life insurance proceeds. The complaint alleges that defendants’ recordkeeping was so haphazard — such as listing incorrect names, dates of birth, and Social Security numbers, or omitting one or more of those pieces of information altogether — that it amounted to reckless disregard for the truth or falsity of the reports that they submitted to the State (see State Finance Law § 188[3][a][iii]). In other circumstances, according to the complaint, defendants had actual knowledge that a policyholder was deceased, as evidenced by returned mail, customer call service logs, or demutualization payments separately escheated to the State, yet defendants nevertheless failed to disclose or escheat the deceased policyholder’s life insurance proceeds to the State (see State Finance Law § 188[3][a][i]). These allegations, if true, demonstrate that defendants “deliberately turn[ed] a blind eye to reporting errors and then attest[ed] that, to [their] knowledge, they d[id] not exist” … . Total Asset Recovery Servs. LLC v Metlife, Inc., 2020 NY Slip Op 07480, First Dept 12-10-20

 

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THE BANK DID NOT DEMONSTRATE THE NOTICE REQUIREMENTS OF RPAPL 1304 WERE COMPLIED WITH; SUMMARY JUDGMENT IN FAVOR OF THE BANK SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the notice requirements of RPAPL 1304 were not demonstrated and, therefore, the bank’s motion for summary judgment in this foreclosure action should not have been granted:

Since the plaintiff failed to provide evidence of the actual mailing by either certified mail or first-class mail, “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” … , it failed to establish, prima facie, that it complied with RPAPL 1304. Since the plaintiff failed to satisfy its prima facie burden with respect to RPAPL 1304, those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, and for an order of reference should have been denied, regardless of the sufficiency of the defendants’ opposition papers … . US Bank N.A. v McQueen, 2020 NY Slip Op 07423, Second Dept 12-9-20

 

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THE ESTATE WAS A NECESSARY PARTY IN THIS FORECLOSURE ACTION BECAUSE OF THE POTENTIAL FOR A DEFICIENCY JUDGMENT AGAINST THE DECEDENT; DEFENDANT’S CROSS MOTION FOR LEAVE TO SUBSTITUTE HERSELF AS ADMINISTRATOR OF THE ESTATE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined decedent’s estate was a necessary party in this foreclosure action and defendant’s cross motion pursuant to CPLR 1015 for leave to substitute herself as administrator should have been granted:

In a mortgage foreclosure action, “[t]he rule is that a mortgagor who has made an absolute conveyance of all his [or her] interest in the mortgaged premises, including his equity of redemption, is not a necessary party to foreclosure, unless a deficiency judgment is sought” … . Here, the judgment of foreclosure and sale contains language providing for a potential deficiency judgment against the decedent if the sale of the property does not cover the amount due to the plaintiff. Consequently, the decedent’s estate was a necessary party to the action … . Specialized Loan Servicing, LLC v Kalinin, 2020 NY Slip Op 07417, Second Dept 12-9-20

 

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SUPREME COURT SHOULD NOT HAVE DENIED SUPPRESSION ON A GROUND NOT RAISED BY THE PARTIES; THE APPELLATE COURT IS POWERLESS TO REVIEW THAT ISSUE; THE APPELLATE COURT IS ALSO POWERLESS TO REVIEW THE SECOND GROUND FOR SUPPRESSION ARGUED BY THE PEOPLE ON APPEAL BECAUSE THAT SECOND ISSUE WAS RESOLVED BELOW IN DEFENDANT’S FAVOR; MATTER SENT BACK TO SUPREME COURT FOR REVIEW OF THE SECOND ISSUE SHOULD THE PEOPLE BE SO ADVISED (SECOND DEPT).

The Second Department determined: (1) the motion court should not have decided the suppression motion on a ground not raised by the parties and the appellate court is powerless to review that issue (search valid pursuant to the automobile exception); (2) the other ground for upholding suppression argued by the People on appeal was decided in defendant’s favor and therefore the appellate court cannot review it (search valid as an inventory search). The denial of the suppression motion was reversed and the matter was sent back for review of the inventory search issue should the People be so advised:

The People’s current contention that the search of the defendant’s SUV was proper under the automobile exception to the warrant requirement because the police had probable cause to believe that the SUV contained a weapon is improperly raised for the first time on appeal … . … [T]he hearing record reveals … the People were relying solely on the theory that the gun was recovered pursuant to a lawful inventory search after the SUV was removed from the location. This Court “cannot uphold conduct of the police, and thereby affirm a trial court’s denial of suppression of evidence obtained pursuant to such conduct, on a factual theory not argued by the People before the trial court” … . …

As an alternative ground for upholding the suppression ruling, the People argue, as they did in the Supreme Court, that the recovery of the gun was lawful pursuant to a valid inventory search. However, because the Supreme Court decided the inventory search issue in the defendant’s favor, this Court is precluded from reviewing that issue on the defendant’s appeal … . …  Under the circumstances presented here, where we lack statutory authority to review an issue resolved in the appellant’s favor at a suppression hearing, the Court of Appeals has instructed that the required remedy is to “reverse the denial of suppression and remit the case to [the] Supreme Court for further proceedings” with respect to that issue … . People v Tates, 2020 NY Slip Op 07405, Second Dept 12-9-20

 

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THE WAIVER OF APPEAL WAS INVALID BECAUSE THE JUDGE SUGGESTED THE WAIVER WAS AN ABSOLUTE BAR TO APPEAL; THE OFFICER WHO APPROACHED DEFENDANT ON THE STREET WAS NOT JUSTIFIED IN REACHING FOR AN OBJECT IN DEFENDANT’S SWEATSHIRT POCKET; DEFENDANT’S FLIGHT AND DISCARDING OF THE WEAPON WAS NOT INDEPENDENT OF THE OFFICER’S UNJUSTIFIED ACTIONS; THE GUN SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, finding the waiver of appeal invalid, granted defendant’s suppression motion and dismissed the indictment. The officer who approached defendant saw the shape of something heavy in defendant’s sweatshirt pocket, said “what’s this” and reached for it. At that point defendant ran and discarded a weapon:

When explaining the waiver of the right to appeal, the Supreme Court stated, inter alia, that as a result of the waiver, the defendant was “giving up [his] independent right to appeal [his] case to a higher court,” and that the case “ends here” upon sentencing. These statements incorrectly suggested that the waiver may be an absolute bar to the taking of an appeal … . …

The officer was justified in conducting a common-law inquiry, and the officer was permitted to ask the defendant if he was carrying a weapon … . However, the officer was not justified in attempting to touch the defendant’s sweatshirt pocket as a minimally intrusive self-protective measure, since the defendant did not engage in any conduct justifying such an intrusion … . The defendant’s response of fleeing and discarding the gun was not “an independent act involving a calculated risk attenuated from the underlying [illegal] police conduct” … . People v Soler, 2020 NY Slip Op 07404, Second Dept 12-9-20

 

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CRIMINAL POSSESSION OF A WEAPON SECOND DEGREE AND CRIMINAL POSSESSION OF A FIREARM ARE INCLUSORY CONCURRENT COUNTS (SECOND DEPT).

The Second Department determined criminal possession of a weapon in the second degree and criminal possession of a firearm are inclusory concurrent counts:

… [B]ecause the charge of criminal possession of a weapon in the second degree and the charge of criminal possession of firearm are inclusory concurrent counts, the conviction of criminal possession of a firearm, as well as the sentence imposed thereon, must be vacated, and that count of the indictment must be dismissed … . People v Nicoletti, 2020 NY Slip Op 07401, Second Dept 12-9-20

 

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SENTENCE IMPOSED AFTER THE SECOND TRIAL SHOULD NOT HAVE BEEN HIGHER THAN THE SENTENCE IMPOSED AFTER THE FIRST TRIAL (SECOND DEPT).

The Second Department, reducing defendant’s sentence imposed after a second trial, determined the sentence imposed after the first trial should not have been “enhanced:”

“Under the Due Process Clause of the New York State Constitution, a presumption of vindictiveness applies where a defendant successfully appeals an initial conviction, and is re-tried, convicted, and given a greater sentence than that imposed after the initial conviction” … . “[C]riminal defendants should not be penalized for exercising their right to appeal” … .  Where, as here, the defendant is convicted of the same count at a new trial following a successful appeal, the sentencing court may not impose a higher sentence unless its reasons for doing so affirmatively appear on the record, and are “‘based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding'” … . Inasmuch as the prosecutor asserted that the defendant demonstrated no remorse for his crimes, the record reflects only that the defendant pleaded not guilty to the charges and exercised his constitutional right to remain silent … . In addition, the ongoing impact of the crime on the complainant does not constitute “identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding” … . Accordingly, the court should not have imposed the higher sentence. People v Diaz, 2020 NY Slip Op 07392, Second Dept 12-9-20

 

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MOTHER HAD FLED TO ARGENTINA WITH THE CHILD WHILE CUSTODY PROCEEDINGS WERE PENDING; FAMILY COURT SHOULD NOT HAVE DENIED THE MATERNAL GRANDMOTHER’S PETITION SEEKING VISITATION ON THE GROUND SHE DID NOT HAVE STANDING; MATTER REMITTED FOR A BEST INTERESTS HEARING (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the court erred in finding the maternal grandmother did not have standing to seek visitation and remitted the matter for a best interests hearing. Mother had fled to Argentina with the child when custody proceedings were pending:

“When a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must make a two-part inquiry” … . The court must first determine if the grandparent has standing, based on death or equitable circumstances, and if it determines that the grandparent has established standing, it must then determine whether visitation is in the best interests of the child (see Domestic Relations Law § 72[1] …).

“Standing [based upon equitable circumstances] should be conferred by the court, in its discretion, only after it has examined all the relevant facts” … . “[A]n essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship” … . “It is not sufficient that the grandparents allege love and affection for their grandchild” … . “They must establish a sufficient existing relationship with their grandchild, or in cases where that has been frustrated by the parents, a sufficient effort to establish one, so that the court perceives it as one deserving the court’s intervention” … .

Here, the Family Court’s determination that the grandmother lacked standing to seek visitation was not supported by a sound and substantial basis in the record … . The evidence demonstrated that the grandmother developed a relationship with the child early on in his life and thereafter made repeated efforts to continue that relationship … . Matter of Noguera v Busto, 2020 NY Slip Op 07385, Second Dept 12-9-20

 

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