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BECAUSE THE ISSUE WAS NOT PRESERVED, THE APPELLATE COURT DID NOT ADDRESS DEFENDANT’S OBJECTION TO THE TRIAL JUDGE’S PROHIBITING DEFENDANT FROM COMMUNICATING WITH HIS ATTORNEY DURING OVERNIGHT RECESSES WHEN DEFENDANT WAS ON THE STAND (FOURTH DEPT).

The Fourth Department determined the defendant did not preserve for appeal his objection to the trial judge’s prohibiting defendant from communicating with his lawyer during overnight recesses when defendant was testifying. The legitimacy of the objection was not addressed:

Defendant … contends in his main brief that the court committed reversible error by depriving him of the constitutional right to counsel when it prohibited him from communicating with defense counsel about his testimony during overnight recesses while defendant was in the midst of testifying in his defense. Defendant failed to preserve that contention for our review inasmuch as defense counsel was ” present and available to register a protest’ to [the] restriction on communication that would [have] provide[d] the court with an opportunity to rectify its error” but did not make a timely protest … . Under the circumstances of this case, we decline to exercise our power to review that contention as a matter of discretion in the interest of justice … . Contrary to defendant’s related contention in his main brief, we conclude under the circumstances of this case that defense counsel’s failure to timely object to the prohibition on communication was not so “egregious and prejudicial as to compromise . . . defendant’s right to a fair trial” … . People v Tetro, 2020 NY Slip Op 01973, Fourth Dept 3-20-20

 

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THERE IS NO LEGAL SUPPORT FOR A ‘TRI-PARENT’ ARRANGEMENT WHERE A FORMER SAME-SEX PARTNER OF MOTHER, MOTHER AND FATHER SHARE VISITATION AND CUSTODY OF THE CHILD (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Centra, over a two-justice concurrence and a dissent, determined petitioner, the former same-sex partner of mother, did not have standing to seek custody and visitation of the child, despite mother’s support of the petition. The petitioner moved out of mother;s residence in 2010. Mother thereafter conceived a child with father. At first father wanted nothing to do with the child, but he has visited the child since 2014. Petitioner participated in the birth and naming of the child and assumed the role of a parent, but the romantic relationship with mother ended in 2012. Father opposed petitioner’s 2017 petition for custody and visitation. Mother did not want to terminate father’s rights. Family Court granted father’s motion to dismiss the petition. The Fourth Department affirmed finding no legal support for a “tri-parent” custody and visitation arrangement:

The wording of Domestic Relations Law § 70 (a) is clear and straightforward. It states that “either” parent may seek custody or visitation (id.). It is a well-settled principle of statutory construction that “[w]ords of ordinary import used in a statute are to be given their usual and commonly understood meaning” … . The common dictionary definition of “either” when used as an adjective has two senses, i.e., “being the one and the other of two” and “being the one or the other of two” … . In addition, when the Court of Appeals stated in Brooke S.B. that section 70 does not define the critical term “parent,” it added the following in a footnote: “We note that by the use of the term either,’ the plain language of Domestic Relations Law § 70 clearly limits a child to two parents, and no more than two, at any given time” (Brooke S.B., 28 NY3d at 18 n 3). In our view, the clear wording of section 70 (a), which was expressly recognized by the Court of Appeals, precludes any relief to petitioner here because there are already two parents: the mother and the father. Under section 70 (a), there simply can be no more. We are therefore in agreement with the Third Department’s recent decision determining that to allow three parents to “simultaneously have standing to seek custody . . . does not comport with the holding in Matter of Brooke S.B.” (Matter of Shanna O. v James P., 176 AD3d 1334, 1335 [3d Dept 2019]). Matter of Tomeka N.H. v Jesus R., 2020 NY Slip Op 02015, Fourth Dept 3-20-20

Similar issue and result in Matter of Wlock v King, 2020 NY Slip Op 02019, Fourth Dept 3-20-20

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, ASSESSED POINTS ON A THEORY NOT RAISED BY THE BOARD OF EXAMINERS OF SEX OFFENDERS OR THE PEOPLE; DEFENDANT WAS THEREBY DEPRIVED OF HIS RIGHT TO DUE PROCESS OF LAW (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the judge should not have, sua sponte, assessed points on a theory not raised by the Board of Examiners of Sex Offenders or the People:

… [D]efendant contends, and the People correctly concede, that County Court violated his right to due process by sua sponte assessing points on a theory not raised by the Board of Examiners of Sex Offenders or the People … . The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment … . Here, no allegations were made either in the risk assessment instrument (RAI) or by the People at the SORA hearing that defendant should be assessed 30 points under risk factor 3, and defendant learned of the assessment of the additional points under that risk factor for the first time when the court issued its decision … . …

The court stated that, if defendant were a presumptive level one risk, an upward departure to level two would be warranted based on certain aggravating factors stemming from the nature of the crimes. Because those factors were not presented as bases for departure in the RAI or by the People at the hearing, defendant was not afforded notice and a meaningful opportunity to respond to them … . People v Wilke, 2020 NY Slip Op 02002, Fourth Dept 3-20-20

 

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FAILURE TO INFORM DEFENDANT OF THE PERIOD OF POST RELEASE SUPERVISION REQUIRED VACATION OF THE SENTENCE; PRESERVATION OF THE ERROR NOT NECESSARY (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined defendant should have been informed his sentence would include a period of post release supervision (PRS). Because defendant was not put on notice, there was not need to preserve the issue for appeal:

At the plea proceeding, the court advised defendant that under the plea agreement, he would plead guilty to third-degree possession, a class B felony, and fifth-degree possession, a class D felony, with the understanding that if he complied with the terms of the plea agreement, he would be allowed to withdraw his plea to the B felony, and be sentenced, solely on the D felony, to 3½ years in prison, followed by two years of postrelease supervision. The court stated that if defendant violated the terms of the plea agreement, he could be sentenced to up to 15 years in prison on the B felony, but it neglected to state that any enhanced sentence would include a period of PRS. Defendant violated the plea agreement by, among other things, failing to appear for sentencing, and the court imposed an enhanced sentence that included two years of post release supervision concurrent on the B and D felonies.

The court was required to advise defendant that his potential sentence in the event he violated the plea conditions would include PRS, and it was also required to specify the length of the term of PRS … . The prosecutor’s brief reference to PRS immediately before sentencing was not the type of notice under People v Murray (15 NY3d 725 [2010]) that would require defendant to preserve the issue … . People v Jamison, 2020 NY Slip Op 01955, First Dept 3-19-20

 

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CITY DEFENDANTS SHOULD HAVE BEEN SANCTIONED FOR FAILURE TO PRESERVE PRE-ACCIDENT POLICE COMMUNICATIONS IN THIS POLICE-VEHICLE TRAFFIC ACCIDENT CASE BECAUSE THE CITY DEFENDANTS WERE AWARE THEY WOULD PROBABLY ASSERT AN EMERGENCY DEFENSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the City defendants should have been sanctioned for spoliation of evidence. The action stemmed from a traffic accident involving a police vehicle and the city defendants were put on notice they would assert an emergency defense by the notice of claim. But the pre-accident police communications were not preserved:

Defendants had an obligation to preserve the pre-accident audio recordings at the time they were destroyed because the Police Department (NYPD) internal report and plaintiff’s notice of claim, which attached the public police accident report, put defendants on notice that they would likely assert an emergency operation defense. Therefore, pre-accident audio communication between the dispatcher and the NYPD vehicle or officers involved in the accident should have been preserved in case it was needed for future litigation … . Under the circumstances presented, the imposition of an adverse inference charge would be an appropriate sanction … . Sanchez v City of New York, 2020 NY Slip Op 01970, First Dept 3-19-20

 

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A HEARING IS NECESSARY TO DETERMINE WHETHER SERVICE OF THE SUMMONS AND COMPLAINT ON THE DOORMAN OF DEFENDANT’S APARTMENT BUILDING WAS VALID (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a hearing should have been held about the validity of the service of the summons and complaint; i.e., whether service on the doorman of the defendant’s (Freeman’s) apartment building was valid service:

The plaintiff asserted that service of process was properly made pursuant to CPLR 308(2), relying on an affidavit of service indicating that service upon Freeman was effected by delivering the summons and complaint to a “doorman” in the apartment building where Freeman resided and by subsequently mailing the summons and complaint to Freeman … . While the affidavit of service constituted prima facie evidence of service of the summons and complaint pursuant to CPLR 308(2) … , the evidence submitted by Freeman in support of her motion, inter alia, to dismiss the complaint sufficiently rebutted the presumption of proper service to warrant a hearing. Freeman’s submissions included specific and detailed averments, as well as the affidavit of a security guard who worked in Freeman’s apartment building. The security guard averred that the summons and complaint were delivered to him at his desk on … , but that he was not authorized to receive packages or deliveries, that he did not deny the process server access to Freeman’s apartment, and that he did not inform Freeman of the delivery. Under these circumstances, the court should have conducted a hearing to determine whether the security guard was a person of suitable age and discretion within the meaning of CPLR 308(2), and whether the outer bounds of Freeman’s dwelling place extended to the security guard’s desk in her apartment building … . Edwards-Blackburn v City of New York, 2020 NY Slip Op 01907, Second Dept 3-18-20

 

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CONFLICTING EXPERT OPINIONS PRECLUDED SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined conflicting expert opinions in this medical malpractice action created a question of fact:

… [T]he plaintiff’s submissions were sufficient to raise a triable issue of fact. The expert affirmations of two board-certified urologists submitted by the plaintiff contradicted the conclusion of the NYCHH defendants’ experts that the RUMC defendants and other defendants caused the plaintiff’s injuries. The plaintiff’s experts concluded, with a reasonable degree of medical certainty, that the plaintiff’s injuries occurred intra-operatively during the prostatectomy performed by Surasi at Woodhull Medical Center. Summary judgment is not appropriate in a medical malpractice action where, as here, the parties adduce conflicting medical expert opinions. “Such credibility issues can only be resolved by a jury” … . Castillo v Surasi, 2020 NY Slip Op 01903, Second Dept 3-18-20

 

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IN THE CONTEXT OF AN APPLICATION FOR A PRELIMINARY INJUNCTION SUPREME COURT SHOULD NOT HAVE GRANTED THE ULTIMATE RELIEF SOUGHT; THE CRITERIA FOR A PRELIMINARY INJUNCTION WERE NOT MET (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court should not have ordered the return of the down payment to the buyer (Berman) pursuant to the purchase contract in the context of granting a preliminary injunction. First, by granting the ultimate relief requested Supreme Court had effectively granted summary judgment before issue was joined. Second the criteria for a preliminary injunction were not met. The purchase contract allowed the termination of the agreement and the return of the down payment if three conditions were met. Berman alleged two of the conditions were met and the third was impossible:

Berman failed to demonstrate his entitlement to temporary injunctive relief pursuant to CPLR 6301, as he failed to establish any of the three required elements for such relief: (1) likelihood of ultimate success on the merits, (2) irreparable injury absent granting of a preliminary injunction, (3) and a balancing of equities in his favor … . …

Berman failed to demonstrate irreparable injury, as the loss of a down payment is not an irreparable harm since the injured party could be made whole by a money judgment … . …

While Berman contends that it was impossible to obtain a Phase II Assessment within the required time, he failed to demonstrate a likelihood of success in establishing that it was impossible to obtain the report. …

Finally, Berman failed to show that the balancing of equities was in his favor.  Berman v TRG Waterfront Lender, LLC, 2020 NY Slip Op 01902, Second Dept 3-18-20

 

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DRIVER/OWNER OF THE MIDDLE VEHICLE IN THIS CHAIN-REACTION REAR-END TRAFFIC ACCIDENT CASE IS NOT LIABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the summary judgment motion by the driver/owner of the middle vehicle in this chain-reaction accident should have been granted. The rear-most driver pushed the stopped middle vehicle into the plaintiff’s vehicle:

“A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision to rebut the inference of negligence” … . ” Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation'” … . Thus, “[i]n a chain collision accident, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead vehicle when it was struck from behind by the rear vehicle and propelled into the lead vehicle” … . Bardizbanian v Bhuiyan, 2020 NY Slip Op 01897, Second Dept 3-18-20

 

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THE REFEREE’S FAILURE TO PROVIDE NOTICE AND A HEARING TO THE DEFENDANT DID NOT REQUIRE REVERSAL OF THE JUDGMENT OF FORECLOSURE (SECOND DEPT).

The Second Department determined the referee’s failure to provide notice and a hearing to the defendant in this foreclosure action did not require reversal of the judgment of foreclosure:

It is undisputed that the referee failed to provide notice to the defendant pursuant to CPLR 4313, or to hold a hearing on the issues addressed in the referee’s report. However, as long as a defendant is not prejudiced by the inability to submit evidence directly to the referee, a referee’s failure to notify a defendant and hold a hearing is not, by itself, a basis to reverse a judgment of foreclosure and sale and remit the matter for a hearing and a new determination of amounts owed … . Where, as here, a defendant had an opportunity to raise questions and submit evidence directly to the Supreme Court, which evidence could be considered by the court in determining whether to confirm the referee’s report, the defendant is not prejudiced by any error in failing to hold a hearing … . Bank of N.Y. Mellon v Viola, 2020 NY Slip Op 01895, Second Dept 3-18-20

 

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