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MOTHER WAS NOT GIVEN THE CHANCE TO ADEQUATELY RESPOND TO THE ALLEGATIONS FORMING THE BASIS OF FAMILY COURT’S FINDING THAT MOTHER VIOLATED A VISITATION ORDER, MATTER REMITTED (THIRD DEPT).

The Third Department, remitting the matter, determined that mother never got the chance to respond to allegations which were the basis for granting father’s violation petition. Father alleged mother denied the father parenting time in violation of the temporary order of custody and visitation:

We agree with the mother that she was not given adequate notice of the allegation forming the basis of Family Court’s determination. In granting the father’s violation petition, Family Court found that the mother violated the June 2015 order by denying the father parenting time on January 22, 2017. Any denial of visitation on this specific date, however, was never alleged by the father in either his violation petition or his emergency application. Rather, this claim was raised for the first time when the parties appeared before Family Court on January 23, 2017. Moreover, Family Court did not entertain any proof with respect to the actual allegations in the father’s pleadings. In this regard, when the mother’s counsel inquired as to the purpose of the January 23, 2017 hearing, Family Court responded that it was to address specifically what transpired on January 22, 2017. Furthermore, there is no indication in the record that the father moved to amend his pleadings to add an allegation relating to the January 22, 2017 incident … or moved to conform the pleadings to the proof adduced at the hearing after the parties testified … . Matter of Pike v Bigelow, 2018 NY Slip Op 07006, Third Dept 10-18-18

FAMILY LAW (MOTHER WAS NOT GIVEN THE CHANCE TO ADEQUATELY RESPOND TO THE ALLEGATIONS FORMING THE BASIS OF FAMILY COURT’S FINDING THAT MOTHER VIOLATED A VISITATION ORDER, MATTER REMITTED (THIRD DEPT))/EVIDENCE (FAMILY LAW, MOTHER WAS NOT GIVEN THE CHANCE TO ADEQUATELY RESPOND TO THE ALLEGATIONS FORMING THE BASIS OF FAMILY COURT’S FINDING THAT MOTHER VIOLATED A VISITATION ORDER, MATTER REMITTED (THIRD DEPT))

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FAMILY COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER THE MATERNAL GRANDPARENTS HAD STANDING TO SEEK VISITATION AND WHETHER VISITATION WOULD BE IN THE CHILD’S BEST INTERESTS, FAMILY COURT HAD MADE FINDINGS BASED UPON PRIOR PROCEEDINGS THAT WERE NOT PART OF THE RECORD (THIRD DEPT).

The Second Department held that a hearing was necessary to determine whether the maternal grandparents had standing to seek visitation and whether such visitation would be in the child’s best interests. Family Court, based on prior proceedings that were not part of the record, had found that the maternal grandparents had standing but visitation would not be in the best interests of the child:

A grandparent may establish a statutory right to visitation where “circumstances show that conditions exist which equity would see fit to intervene” … . To determine whether visitation is appropriate, a court must first decide whether the grandparent has standing to seek visitation before deciding whether visitation is in the child’s best interests … . Standing is established where the grandparent demonstrates that there is “a sufficient existing relationship with the[] grandchild . . . [or] a sufficient effort to establish one, so that the court perceives it as one deserving the court’s intervention”… . The sufficiency of the grandparent’s efforts in this regard “must always be measured against what [he or she] could reasonably have done under the circumstances” … . If standing is established, the court’s best interests determination “requires evaluation of a variety of factors, including the nature and extent of the existing relationship between the grandparent and child, the basis and reasonableness of the parent’s objections, the grandparent’s nurturing skills and attitude toward the parent[], the attorney for the child’s assessment and the child’s wishes” … . Matter of Ferguson v Weaver, 2018 NY Slip Op 07005, Third Dept 10-18-18

FAMILY LAW (VISITATION, FAMILY COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER THE MATERNAL GRANDPARENTS HAD STANDING TO SEEK VISITATION AND WHETHER VISITATION WOULD BE IN THE CHILD’S BEST INTERESTS, FAMILY COURT HAD MADE FINDINGS BASED UPON PRIOR PROCEEDINGS THAT WERE NOT PART OF THE RECORD (THIRD DEPT))/EVIDENCE (FAMILY LAW, VISITATION, FAMILY COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER THE MATERNAL GRANDPARENTS HAD STANDING TO SEEK VISITATION AND WHETHER VISITATION WOULD BE IN THE CHILD’S BEST INTERESTS, FAMILY COURT HAD MADE FINDINGS BASED UPON PRIOR PROCEEDINGS THAT WERE NOT PART OF THE RECORD (THIRD DEPT))/APPEALS (FAMILY LAW, VISITATION,  FAMILY COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER THE MATERNAL GRANDPARENTS HAD STANDING TO SEEK VISITATION AND WHETHER VISITATION WOULD BE IN THE CHILD’S BEST INTERESTS, FAMILY COURT HAD MADE FINDINGS BASED UPON PRIOR PROCEEDINGS THAT WERE NOT PART OF THE RECORD (THIRD DEPT))/VISITATION (FAMILY COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER THE MATERNAL GRANDPARENTS HAD STANDING TO SEEK VISITATION AND WHETHER VISITATION WOULD BE IN THE CHILD’S BEST INTERESTS, FAMILY COURT HAD MADE FINDINGS BASED UPON PRIOR PROCEEDINGS THAT WERE NOT PART OF THE RECORD (THIRD DEPT))

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MATTER REMITTED FOR FINDINGS CONCERNING WHETHER NEW YORK IS THE MORE APPROPRIATE OR CONVENIENT FORUM FOR THE CUSTODY PROCEEDINGS, CUSTODY PROCEEDINGS WERE PENDING IN A MISSISSIPPI COURT (THIRD DEPT).

The Third Department, reversing and remitting the matter to make a record, determined that Family Court properly communicated with the Mississippi court in which mother had also commenced a pending custody proceeding but did not make a sufficient record in finding that Mississippi court retained jurisdiction of the custody:

The Mississippi court’s statements during the conference confirm that a child custody proceeding was still pending in that state and had been commenced prior to the mother’s Family Court proceeding, as those terms are defined by the UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act] … . Because the custody portion of the divorce action was still pending in Mississippi when the mother filed her custody modification petition in Family Court, the applicable provision of the UCCJEA is Domestic Relations Law § 76-e, entitled “[s]imultaneous proceedings.” Pursuant to that statute, a New York court may not exercise jurisdiction if, at the time the New York proceeding is commenced, a custody proceeding concerning the same child has been commenced in another state having jurisdiction under the UCCJEA, unless a court in the other state terminates or stays that proceeding because a New York court constitutes a more convenient forum under Domestic Relations Law § 76-f … . Procedurally, if a New York court determines that a custody proceeding has been commenced in another court in accordance with the UCCJEA, the New York court must stay its proceeding, communicate with the other court and, if the other court does not determine that New York is the more appropriate forum, dismiss the proceeding (see Domestic Relations Law § 76-e [2]). …

Although Family Court stated in its order that the Mississippi court “has retained jurisdiction,” that does not sufficiently answer the jurisdictional question under the UCCJEA. The Mississippi court, as the court where the first of two simultaneous child custody proceedings was filed, had to determine whether New York would be a more appropriate or convenient forum … . Matter of Hiles v Hiles, 2018 NY Slip Op 07004, Third Dept 10-18-18

FAMILY LAW (MATTER REMITTED FOR FINDINGS CONCERNING WHETHER NEW YORK IS THE MORE APPROPRIATE OR CONVENIENT FORUM FOR THE CUSTODY PROCEEDINGS, CUSTODY PROCEEDINGS WERE PENDING IN A MISSISSIPPI COURT (THIRD DEPT))/CUSTODY (FAMILY LAW, MATTER REMITTED FOR FINDINGS CONCERNING WHETHER NEW YORK IS THE MORE APPROPRIATE OR CONVENIENT FORUM FOR THE CUSTODY PROCEEDINGS, CUSTODY PROCEEDINGS WERE PENDING IN A MISSISSIPPI COURT (THIRD DEPT))/CIVIL PROCEDURE (FAMILY LAW, CUSTODY, MATTER REMITTED FOR FINDINGS CONCERNING WHETHER NEW YORK IS THE MORE APPROPRIATE OR CONVENIENT FORUM FOR THE CUSTODY PROCEEDINGS, CUSTODY PROCEEDINGS WERE PENDING IN A MISSISSIPPI COURT (THIRD DEPT))/UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) MATTER REMITTED FOR FINDINGS CONCERNING WHETHER NEW YORK IS THE MORE APPROPRIATE OR CONVENIENT FORUM FOR THE CUSTODY PROCEEDINGS, CUSTODY PROCEEDINGS WERE PENDING IN A MISSISSIPPI COURT (THIRD DEPT))

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FATHER REBUTTED THE STATUTORY PRESUMPTION THAT THE CHILD’S MEDICAL CONDITION WAS THE RESULT OF NEGLECT AND ABUSE, NEGLECT AND ABUSE FINDINGS REVERSED (THIRD DEPT).

The Third Department, reversing Family Court, determined the respondent father had rebutted the presumption that the child’s medical condition was caused by abuse with medical evidence. Because the neglect and abuse petition relied entirely on the statutory presumption, the neglect and abuse findings were not supported:

Family Ct Act § 1046 (a) (ii) provides that petitioner may establish “a prima facie case of child abuse or neglect . . . through evidence that the child sustained an injury that would ordinarily not occur absent an act or omission of the respondent, and that the respondent was the caretaker of the child at the time that the injury occurred” … . Contrary to respondent’s contention, petitioner did so here. It was undisputed that respondent was alone with the child when she stopped breathing, and the consulting pediatrician testified to her involvement in the child’s case and the reasons that she became convinced that recent, nonaccidental trauma was the only explanation for the child’s condition.

This prima facie case did not guarantee a finding of abuse or neglect, but “establish[ed] a rebuttable presumption of parental culpability which the court may or may not accept based upon all the evidence in the record”… . Petitioner must still prove abuse or neglect by a preponderance of the evidence and, importantly, proof of “a reasonable explanation for the child’s injuries” will rebut the presumption of culpability … . As such, before relying upon the presumption set forth by Family Ct Act § 1046 (a) (ii), “the court should consider such factors as the strength of the prima facie case and the credibility of the witnesses testifying in support of it, the nature of the injury, the age of the child, relevant medical or scientific evidence and the reasonableness of the caretaker’s explanation in light of all the circumstances” … . Matter of Liana HH. (Christopher HH.), 2018 NY Slip Op 07001, Third Dept 10-18-18

FAMILY LAW (NEGLECT, ABUSE, FATHER REBUTTED THE STATUTORY PRESUMPTION THAT THE CHILD’S MEDICAL CONDITION WAS THE RESULT OF NEGLECT AND ABUSE, NEGLECT AND ABUSE FINDINGS REVERSED (THIRD DEPT))/NEGLECT (FAMILY  LAW, FATHER REBUTTED THE STATUTORY PRESUMPTION THAT THE CHILD’S MEDICAL CONDITION WAS THE RESULT OF NEGLECT AND ABUSE, NEGLECT AND ABUSE FINDINGS REVERSED (THIRD DEPT))/ABUSE (FAMILY  LAW, FATHER REBUTTED THE STATUTORY PRESUMPTION THAT THE CHILD’S MEDICAL CONDITION WAS THE RESULT OF NEGLECT AND ABUSE, NEGLECT AND ABUSE FINDINGS REVERSED (THIRD DEPT))/EVIDENCE (FAMILY LAW, NEGLECT, ABUSE, FATHER REBUTTED THE STATUTORY PRESUMPTION THAT THE CHILD’S MEDICAL CONDITION WAS THE RESULT OF NEGLECT AND ABUSE, NEGLECT AND ABUSE FINDINGS REVERSED (THIRD DEPT))

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BANK’S EVIDENCE OF STANDING TO BRING THE FORECLOSURE ACTION INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff bank did not demonstrate standing to bring the foreclosure action:

Where, as here, the note has been endorsed in blank, the purported holder of the note must establish its standing by demonstrating that the original note was physically delivered to it prior to the commencement of the action (see UCC 3-202[1]; 3-204[2]…). The plaintiff attempted to establish its standing through the affidavit of Jonathan Manko, an officer of Bank of America, N.A., the purported servicing agent for the plaintiff. Manko averred that he reviewed all of the documents attached to his affidavit and “authenticate[d] them as coming directly from the loan file at issue herein and kept in the ordinary course of business.” Manko averred that this action was commenced on December 30, 2010, and at that time, the plaintiff was in possession of the original note and mortgage. However, the plaintiff failed to demonstrate that the records Manko relied upon were admissible under the business records exception to the hearsay rule (see CPLR 4518[a]) because Manko, an officer of Bank of America, N.A., did not attest that he was personally familiar with the plaintiff’s record-keeping practices and procedures … . Bank of N.Y. Mellon v Selig, 2018 NY Slip Op 06874, Second Dept 10-17-18

FORECLOSURE (BANK’S EVIDENCE OF STANDING TO BRING THE FORECLOSURE ACTION INSUFFICIENT (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, STANDING, BANK’S EVIDENCE OF STANDING TO BRING THE FORECLOSURE ACTION INSUFFICIENT (SECOND DEPT))/EVIDENCE (FORECLOSURE, STANDING, BANK’S EVIDENCE OF STANDING TO BRING THE FORECLOSURE ACTION INSUFFICIENT (SECOND DEPT))/HEARSAY (FORECLOSURE, BANK’S EVIDENCE OF STANDING TO BRING THE FORECLOSURE ACTION INSUFFICIENT (SECOND DEPT))/BUSINESS RECORDS EXCEPTION TO HEARSAY RULE (FORECLOSURE, BANK’S EVIDENCE OF STANDING TO BRING THE FORECLOSURE ACTION INSUFFICIENT (SECOND DEPT))

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PETITION FOR SANCTIONS AGAINST DEFENDANT’S ATTORNEY FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN GRANTED, DEFENDANT’S ATTORNEY, WITHOUT PROOF, CONTENDED THE PRENUPTIAL AGREEMENT HAD BEEN REPLACED, APPARENTLY IN ORDER TO DELAY THE PROCEEDINGS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s application to impose sanctions against defendant’s attorney for frivolous conduct should have have been granted:

… [T]he Supreme Court improvidently exercised its discretion in denying the plaintiff’s application to impose sanctions in the form of attorneys’ fees and expenses against the defendant’s attorney pursuant to 22 NYCRR 130-1.1. Although “[a]n agreement between spouses or prospective spouses which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability” … , the defendant, through her attorney, moved to set aside the prenuptial agreement contending, in effect, that there had been a novation such that the prenuptial agreement had been replaced by the affidavit of support. The defendant’s attorney provided no legal authority supporting this contention. Even though the court granted that branch of the plaintiff’s cross motion which was, in effect, to preclude the defendant from seeking to set aside the parties’ prenuptial agreement, the defendant’s attorney later attempted, at the nonjury trial, to question the plaintiff about the affidavit of support, arguing, in effect, that the affidavit of support replaced the prenuptial agreement. The defense then rested without presenting evidence.

The conduct of the defendant’s attorney was frivolous within the meaning of 22 NYCRR 130-1.1(c). The defendant’s attorney continued to advance his contention relating to the affidavit of support, which was completely without merit in law, in contravention of the Supreme Court’s prior ruling. Moreover, that contention could not be supported by a reasonable argument for an extension, modification, or reversal of existing law, and the conduct of the defendant’s attorney appears to have been undertaken primarily to delay or prolong the resolution of the litigation … . Tamburello v Tamburello, 2018 NY Slip Op 06961, Second Dept 10-17-18

FAMILY LAW (PETITION FOR SANCTIONS AGAINST DEFENDANT’S ATTORNEY FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN GRANTED, DEFENDANT’S ATTORNEY, WITHOUT PROOF, CONTENDED THE PRENUPTIAL AGREEMENT HAD BEEN REPLACED, APPARENTLY IN ORDER TO DELAY THE PROCEEDINGS (SECOND DEPT))/CONTRACT LAW (FAMILY LAW, PETITION FOR SANCTIONS AGAINST DEFENDANT’S ATTORNEY FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN GRANTED, DEFENDANT’S ATTORNEY, WITHOUT PROOF, CONTENDED THE PRENUPTIAL AGREEMENT HAD BEEN REPLACED, APPARENTLY IN ORDER TO DELAY THE PROCEEDINGS (SECOND DEPT))/ATTORNEYS (SANCTIONS, PETITION FOR SANCTIONS AGAINST DEFENDANT’S ATTORNEY FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN GRANTED, DEFENDANT’S ATTORNEY, WITHOUT PROOF, CONTENDED THE PRENUPTIAL AGREEMENT HAD BEEN REPLACED, APPARENTLY IN ORDER TO DELAY THE PROCEEDINGS (SECOND DEPT))/FRIVOLOUS CONDUCT (ATTORNEYS, SANCTIONS, PETITION FOR SANCTIONS AGAINST DEFENDANT’S ATTORNEY FOR FRIVOLOUS CONDUCT SHOULD HAVE BEEN GRANTED, DEFENDANT’S ATTORNEY, WITHOUT PROOF, CONTENDED THE PRENUPTIAL AGREEMENT HAD BEEN REPLACED, APPARENTLY IN ORDER TO DELAY THE PROCEEDINGS (SECOND DEPT))

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PAYOR OF VOLUNTARY SPOUSAL SUPPORT SHOULD HAVE BEEN GIVEN CREDIT FOR THOSE PAYMENTS IN THIS DIVORCE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the voluntary support and legal-obligations payments made by husband to wife should have been credited against the arrears owed by him:

Voluntary payments made for the support and legal obligations of a spouse should be applied as a credit to the calculation of arrears owed by the payor spouse… . When the payor spouse relieves the other spouse from paying obligations for which the other spouse would be responsible, such payments must be considered as satisfying, in whole or part, maintenance and/or child support … . Here, the defendant is entitled to credits against his maintenance obligation as established in the judgment of divorce with regard to the plaintiff’s share of such expenses such as mortgage, real estate taxes, and automobile insurance payments … .

We disagree with the plaintiff’s contention that the defendant’s voluntary payments made pursuant to the preliminary conference order, which does not specifically enumerate the payments to be made, cannot qualify as “payments of pendente lite spousal maintenance actually made pursuant to Court Order.” The preliminary conference order, as so-ordered by the Supreme Court, plainly contemplated that the defendant would continue to make voluntary payments for the benefit of the plaintiff and the parties’ children. To deny the payor spouse a credit for payments made on account of the other spouse’s expenses would not only be inequitable by providing a windfall for the benefitted spouse, but it would also discourage voluntary support payments during the pendency of matrimonial actions and likely cause a precipitous rise of pendente lite motion practice by nonmonied spouses. Just as a party who unnecessarily prolongs a matrimonial action should not be rewarded, common sense dictates that a party who avoids unnecessary motion practice and preserves assets and time by agreeing to voluntarily pay the expenses of the other party should not be punished by being denied appropriate credits therefor. Stern v Stern, 2018 NY Slip Op 06959, Second Dept 10-18-18

FAMILY LAW (PAYOR OF VOLUNTARY SUPPORT SHOULD HAVE BEEN GIVEN CREDIT FOR THOSE PAYMENTS IN THIS DIVORCE ACTION (SECOND DEPT))/SUPPORT (FAMILY LAW, DIVORCE, PAYOR OF VOLUNTARY SUPPORT SHOULD HAVE BEEN GIVEN CREDIT FOR THOSE PAYMENTS IN THIS DIVORCE ACTION (SECOND DEPT))/VOLUNTARY SUPPORT PAYMENTS (FAMILY LAW, DIVORCE, PAYOR OF VOLUNTARY SUPPORT SHOULD HAVE BEEN GIVEN CREDIT FOR THOSE PAYMENTS IN THIS DIVORCE ACTION (SECOND DEPT))/SPOUSAL SUPPORT (FAMILY LAW, DIVORCE, PAYOR OF VOLUNTARY SUPPORT SHOULD HAVE BEEN GIVEN CREDIT FOR THOSE PAYMENTS IN THIS DIVORCE ACTION (SECOND DEPT))/MAINTENANCE (FAMILY LAW, DIVORCE, PAYOR OF VOLUNTARY SUPPORT SHOULD HAVE BEEN GIVEN CREDIT FOR THOSE PAYMENTS IN THIS DIVORCE ACTION (SECOND DEPT))

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PEOPLE’S REQUEST FOR AN UPWARD DEPARTURE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined the People’s request for an upward departure in this SORA risk assessment proceeding should not have been granted:

An upward departure is permitted only if the court concludes, upon clear and convincing evidence, “that there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines” … . In determining whether an upward departure is permissible and, if permissible, appropriate, a SORA court must engage in a three-step inquiry. First, the court must determine whether the People have articulated, as a matter of law, a legitimate aggravating factor. Next, the court must determine whether the People have established, by clear and convincing evidence, the facts supporting the presence of that factor in the case before it. Upon the People’s satisfaction of these two requirements, an upward departure becomes discretionary. If, upon examining all of the circumstances relevant to the offender’s risk of reoffense and danger to the community, the court concludes that the presumptive risk level would result in an underassessment of the risk or danger of reoffense, it may upwardly depart … . If, however, the People do not satisfy the first two requirements, the court does not have the discretion to depart from the presumptive risk level… .

In this case, the People failed at the hearing to identify “an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines” … . Specifically, the defendant’s abuse of trust within a family relationship is already adequately accounted for by the Guidelines … . People v Mota, 2018 NY Slip Op 06950, Second Dept 10-18-18

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA) PEOPLE’S REQUEST FOR AN UPWARD DEPARTURE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (PEOPLE’S REQUEST FOR AN UPWARD DEPARTURE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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PLAINTIFF OFFERED DIFFERENT EXPLANATIONS OF THE CAUSE OF HIS FALL, COURT HELD PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HIS FALL, REQUIRING DISMISSAL (SECOND DEPT).

The Second Department determined plaintiff’s action in this slip and fall case was properly dismissed. Plaintiff had offered several different allegations about the cause of his fall. The court held plaintiff was unable to identify the cause of his fall:

The defendant established its prima facie entitlement to judgment as a matter of law by demonstrating, through the submission, inter alia, of the plaintiff’s deposition testimony and amended bill of particulars, that the plaintiff could not identify the cause of his fall without engaging in speculation … . In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s sworn statement, submitted in opposition to the defendant’s motion, that he expected the floor of the diner to be “level with the landing,” presented what appears to be a feigned issue of fact designed to avoid the consequences of his prior deposition testimony … . Pasqualoni v Jacklou Corp., 2018 NY Slip Op 06928, Second Dept 10-17-18

NEGLIGENCE (SLIP AND FALL, PLAINTIFF OFFERED DIFFERENT EXPLANATIONS OF THE CAUSE OF HIS FALL, COURT HELD PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HIS FALL, REQUIRING DISMISSAL (SECOND DEPT))/SLIP AND FALL (PLAINTIFF OFFERED DIFFERENT EXPLANATIONS OF THE CAUSE OF HIS FALL, COURT HELD PLAINTIFF COULD NOT IDENTIFY THE CAUSE OF HIS FALL, REQUIRING DISMISSAL (SECOND DEPT)

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FAILURE TO TIMELY FILE CERTIFIED MINUTES OF THE CONVENTION REQUIRED REMOVAL OF TWO CANDIDATES FOR SUPREME COURT FROM THE BALLOT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the failure to timely file the certified minutes of the convention of the Democratic Committee for the Thirteenth Judicial District required removal of the names of two Supreme Court Justice candidates from the ballot:

Under the statutory scheme, as to nominations flowing from a judicial nominating convention, certificates of party nomination must be filed not later than the day after the last day to hold such convention, and the minutes of such convention, duly certified by the Chair and Secretary, must be filed within 72 hours after the adjournment of the convention (see Election Law § 6-158[6]). The statute requires that both documents be filed; the certificate of party nomination may not stand alone, as the certified minutes provide the necessary authentication that the convention made the nominations set forth in the certificate … .

Since no certified convention minutes have been filed, and no reason has been offered as a basis upon which such failure could be excused, we are left with no alternative but to hold that the failure to file certified convention minutes renders the attempt to nominate these candidates ineffectual, and their names must be removed from the ballot. Matter of Fuentes v Catalano, 2018 NY Slip Op 07034, Second Dept 10-18-18

ELECTION LAW (FAILURE TO TIMELY FILE CERTIFIED MINUTES OF THE CONVENTION REQUIRED REMOVAL OF TWO CANDIDATES FOR SUPREME COURT FROM THE BALLOT (SECOND DEPT))/JUDGES (ELECTION LAW, FAILURE TO TIMELY FILE CERTIFIED MINUTES OF THE CONVENTION REQUIRED REMOVAL OF TWO CANDIDATES FOR SUPREME COURT FROM THE BALLOT (SECOND DEPT))

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