You are here: / DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S MOTION TO...

Search Results

/ ,

DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S MOTION TO WITHDRAW HIS PLEA, SENTENCE VACATED AND MATTER REMITTED FOR ASSIGNMENT OF A NEW ATTORNEY FOR THE MOTION (THIRD DEPT).

The Third Department, vacating defendant’s sentence, determined County County should have assigned a new attorney after defense counsel took a position adverse to her client’s motion to withdraw his plea:

At sentencing, defense counsel appropriately advised County Court that, although she had counseled defendant regarding the potential consequences of withdrawing his guilty plea, and despite her legal advice to the contrary, defendant nevertheless wished to proceed with such a motion. Defendant thereafter set forth various reasons as to why he believed he was entitled to the requested relief. In response to County Court’s subsequent inquiries, however, defense counsel made comments that, in our view, could be construed as undermining the very arguments that defendant had raised in support of his motion. Accordingly, once defense counsel took a position that was adverse to defendant, County Court should have assigned a new attorney to represent him on his motion to withdraw his plea … . People v Oliver, 2018 NY Slip Op 01221, Third Dept 2-22-18

CRIMINAL LAW (ATTORNEYS, DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S MOTION TO WITHDRAW HIS PLEA, SENTENCE VACATED AND MATTER REMITTED FOR ASSIGNMENT OF A NEW ATTORNEY FOR THE MOTION (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S MOTION TO WITHDRAW HIS PLEA, SENTENCE VACATED AND MATTER REMITTED FOR ASSIGNMENT OF A NEW ATTORNEY FOR THE MOTION (THIRD DEPT))

/ ,

COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT).

The Third Department, vacating defendant’s sentence, determined County Court failed to place on the record the statutory factors to be weighed in determining youthful offender status. The waiver of appeal did not foreclose the challenge on appeal:

… County Court’s comments regarding defendant’s application for youthful offender status failed to satisfy the statutory mandate of CPL 720.10. An appeal waiver does not foreclose a defendant’s challenge that a court failed to make the requisite on-the-record determinations regarding youthful offender treatment … . Pursuant to CPL 720.10 (3), “a youth who has been convicted of . . . criminal sexual act in the first degree . . . is an eligible youth if the court determines that one or more of the following factors exist: (i) mitigating circumstances that bear directly upon the manner in which the crime was committed; or (ii) where the defendant was not the sole participant in the crime, the defendant’s participation was relatively minor although not so minor as to constitute a defense to the prosecution.” Where, as here, the only barrier to youthful offender status is an enumerated sex offense (see CPL 720.10 [2] [a]), “the court is required to determine on the record whether the defendant is an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10 (3)”… . This determination is mandatory, without regard to whether it has been requested or purportedly waived … . People v Martz, 2018 NY Slip Op 01222, Third Dept 2-22-18

CRIMINAL LAW (YOUTHFUL OFFENDER, COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT))/APPEALS (CRIMINAL LAW, YOUTHFUL OFFENDER, YOUTHFUL OFFENDER, COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT))/YOUTHFUL OFFENDER (COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT))/SEX OFFENSES (YOUTHFUL OFFENDER, COUNTY COURT DID NOT MAKE THE STATUTORY FINDINGS REQUIRED FOR DETERMINING DEFENDANT’S APPLICATION FOR YOUTHFUL OFFENDER STATUS IN THIS SEXUAL OFFENSE CASE, WAIVER OF APPEAL DID NOT PRECLUDE CHALLENGE ON APPEAL, SENTENCE VACATED AND MATTER REMITTED (THIRD DEPT))

/ ,

DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, determined that defendant’s plea colloquy negated an essential element of the offense (criminal contempt). An exception to the preservation requirement applied:

“[W]here a pleading defendant’s recitation of the facts of his or her offense clearly casts doubt on his or her guilt and the court makes no further inquiry, the defendant does not have to preserve a claim of fatal error in the allocution because . . . ‘the court’s attention should have been instantly drawn to the problem, and the salutary purpose of the preservation rule is arguably not jeopardized'” … . Here, defendant stated during her plea allocution that she did not intend to violate the underlying order of protection, thus negating an element of criminal contempt in the first degree… . Although County Court promptly responded and afforded defendant an opportunity to again consult with her counsel, further discussion was then held off the record. Thus, we are unable to ascertain from the record whether the court conducted the requisite further inquiry to ensure that defendant understood the elements of the crime to which she was pleading guilty and that the plea was knowing, voluntary and intelligent … . People v Busch-scardino, 2018 NY Slip Op 01218, Third Dept 2-22-18

CRIMINAL LAW (DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))/GUILTY PLEA (DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))/ALLOCUTION (CRIMINAL LAW, DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))/PRESERVATION (CRIMINAL LAW, APPEALS, DEFENDANT’S PLEA ALLOCATION NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE, PRESERVATION OF THE ERROR NOT REQUIRED, GUILTY PLEA VACATED (THIRD DEPT))

/

ONCE AN ALCOHOL AND SUBSTANCE ABUSE EVALUATION WAS ORDERED THE CASE SHOULD HAVE BEEN TRANSFERRED TO THE DRUG TREATMENT COURT FOR THE JUDICIAL DIVERSION HEARING, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined that the judicial diversion hearing should have been presided over by a judge in the Drug Treatment Court, not County Court:

… County Court was not designated by the Administrative Judge for the Third Judicial District to preside over the drug treatment court in Sullivan County. … Accordingly, while County Court had jurisdiction to hear the subject felony case … , once an alcohol and substance abuse evaluation was ordered for defendant … — for the express purpose of determining whether he was eligible for judicial diversion — the case should have been referred to the designated Superior Court for drug treatment pursuant to 22 NYCRR part 143. Accordingly, under the circumstances presented, we find that County Court was without authority to preside over defendant’s judicial diversion hearing … . People v Lee, 2018 NY Slip Op 01216, Third Dept 2-22-18

CRIMINAL LAW (JUDICIAL DIVERSION HEARING, ONCE AN ALCOHOL AND SUBSTANCE ABUSE EVALUATION WAS ORDERED THE CASE SHOULD HAVE BEEN TRANSFERRED TO THE DRUG TREATMENT COURT FOR THE JUDICIAL DIVERSION HEARING, CONVICTION REVERSED (THIRD DEPT))/JUDICIAL DIVERSION HEARING (CRIMINAL LAW, ONCE AN ALCOHOL AND SUBSTANCE ABUSE EVALUATION WAS ORDERED THE CASE SHOULD HAVE BEEN TRANSFERRED TO THE DRUG TREATMENT COURT FOR THE JUDICIAL DIVERSION HEARING, CONVICTION REVERSED (THIRD DEPT))/DRUG TREATMENT COURT  (JUDICIAL DIVERSION HEARING, ONCE AN ALCOHOL AND SUBSTANCE ABUSE EVALUATION WAS ORDERED THE CASE SHOULD HAVE BEEN TRANSFERRED TO THE DRUG TREATMENT COURT FOR THE JUDICIAL DIVERSION HEARING, CONVICTION REVERSED (THIRD DEPT))/ALCOHOL AND SUBSTANCE ABUSE EVALUATION (CRIMINAL LAW,  ONCE AN ALCOHOL AND SUBSTANCE ABUSE EVALUATION WAS ORDERED THE CASE SHOULD HAVE BEEN TRANSFERRED TO THE DRUG TREATMENT COURT FOR THE JUDICIAL DIVERSION HEARING, CONVICTION REVERSED (THIRD DEPT))

/

DEFENDANT SHOT ANOTHER HUNTER AND WAS CHARGED WITH AND CONVICTED OF (RECKLESS) ASSAULT SECOND, DEFENSE REQUEST FOR A JURY INSTRUCTION ON (NEGLIGENT) ASSAULT THIRD SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined defendant’s request for a jury instruction on a lesser included offense should have been granted. Defendant shot another hunter and was charged with assault second. Defendant requested a jury instruction on assault third which was denied:

Defendant argued that the jury could reasonably find from the trial proof that he did not act recklessly so as to commit assault in the second degree (see Penal Law § 120.05 [4]), but did behave negligently so as to commit assault in the third degree … . Recklessness and criminal negligence are achingly close to one another; a reckless defendant “perceives the risk, but consciously disregards it,” while a criminally negligent defendant “negligently fails to perceive the risk” altogether … . A jury distinguishes between the two by considering “the evidence . . . relating to the mental state of the defendant at the time of the crime”… .

… [D]efendant knew that the victim had permission to hunt on the property where the shooting occurred, but also told investigators that he had seen no sign of the victim or anyone else in the three weeks that he had been hunting in the area. The victim confirmed that the area was not frequented by hunters, testifying that he had never seen another person in the 30 years that he had hunted there and saw human tracks for the first time the week before he was shot. There was no proof that defendant recalled the advice given at a hunting safety class, which he took 20 years prior, to be certain of his target before opening fire. Even if he did, however, he told investigators that he opened fire after hearing what he thought were deer horns rubbing against branches and watched what he thought was a deer but was, in reality, the stooped-over victim in a camouflage jacket. Viewing this evidence in the light most favorable to defendant … , the jury could have reasonably found that defendant did not disregard, but instead failed to perceive, an unjustifiable risk of injury to the victim when he opened fire without sufficient observation… . County Court therefore erred in refusing to charge the lesser included offense of assault in the third degree … . People v Lavalley, 2018 NY Slip Op 01223, Third Dept 2-22-18

CRIMINAL LAW (DEFENDANT SHOT ANOTHER HUNTER AND WAS CHARGED WITH AND CONVICTED OF (RECKLESS) ASSAULT SECOND, DEFENSE REQUEST FOR A JURY INSTRUCTION ON (NEGLIGENT) ASSAULT THIRD SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (THIRD DEPT))/ASSAULT (CRIMINAL LAW, DEFENDANT SHOT ANOTHER HUNTER AND WAS CHARGED WITH AND CONVICTED OF (RECKLESS) ASSAULT SECOND, DEFENSE REQUEST FOR A JURY INSTRUCTION ON (NEGLIGENT) ASSAULT THIRD SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (THIRD DEPT))/HUNTERS (CRIMINAL LAW, DEFENDANT SHOT ANOTHER HUNTER AND WAS CHARGED WITH AND CONVICTED OF (RECKLESS) ASSAULT SECOND, DEFENSE REQUEST FOR A JURY INSTRUCTION ON (NEGLIGENT) ASSAULT THIRD SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (THIRD DEPT))

/ , ,

ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENTS MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, modifying Supreme Court, determined that defendants demonstrated the suit against them was a strategic lawsuit against public participation (SLAPP). Therefore plaintiff’s motion to dismiss the defendants’ anti-SLAPP counterclaim was properly denied. Plaintiff operated a yard-waste-related business. Defendants lived on neighboring properties and had made statements about odors and contamination related to the yard waste. Because the court determined this was a SLAPP suit, the complaint against a defendant based upon statements made by the defendant about plaintiff’s yard waste business (alleging defamation, interference with a a business relationship, inter alia) should have been dismissed:

It is undisputed that, in 2007, plaintiffs registered with the Department of Environmental Conservation (hereinafter DEC) as a yard waste composting facility that accepts between 3,000 to 10,000 cubic yards of waste per year … . Lawful operation of plaintiffs’ composting facility requires DEC permission and ongoing compliance with all applicable regulations and is subject to oversight by DEC … . …  In light of the fact that operations pursuant to a registration require DEC permission and are subject to continuing DEC oversight, Supreme Court properly concluded that plaintiffs are public permittees, as defined by Civil Rights Law § 76-a (1) (b) … .

We also conclude that the relevant conduct challenged in this action — defendants’ statements about plaintiffs and the operations conducted at their property — establishes that the action is materially related to plaintiffs’ registered yard composting facility. …

Inasmuch as we have determined that this action involves public petition and participation, to avoid dismissal of the complaint against [defendant] Merced, plaintiffs must demonstrate that any statement they allege she made “was made with knowledge of its falsity or with reckless disregard of whether it was false” (Civil Rights Law § 76-a [2]…) . Plaintiffs failed to meet this burden. Edwards v Martin, 2018 NY Slip Op 01238, Third Dept 2-22-18

CIVIL RIGHTS LAW (SLAPP SUITS, ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENT MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/ENVIRONMENTAL LAW (SLAPP SUITS, ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENT MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/DEFAMATION (SLAPP SUITS, ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENT MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT))/SLAPP SUITS (ACTION BY YARD WASTE BUSINESS WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP), DEFAMATION AND RELATED CLAIMS AGAINST NEIGHBOR BASED ON STATEMENT MADE BY THE NEIGHBOR ABOUT THE OPERATION OF THE YARD WASTE BUSINESS SHOULD HAVE BEEN DISMISSED (THIRD DEPT))

/ , ,

BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION PROPERLY DENIED (SECOND DEPT).

The Second Department determined plaintiff bank’s motion for summary judgment in this foreclosure action was properly denied. Although the bank demonstrating standing to bring the action, it did not demonstrate compliance with the notice provisions of Real Property Actions and Proceedings Law (RPAPL) 1304 with admissible evidence:

… [S]ince the defendant raised the issue of compliance with RPAPL 1304 as an affirmative defense in his answer, the plaintiff was required to make a prima facie showing of compliance with RPAPL 1304 … . The plaintiff failed to make the requisite showing. In support of its motion, the plaintiff submitted the affidavit of Sherry Benight, an officer of Select Portfolio Servicing, Inc. (hereinafter SPS), the loan servicer, along with two copies of a 90-day notice addressed to the defendant and a proof of filing statement pursuant to RPAPL 1306 from the New York State Banking Department. While mailing may be proved by documents meeting the requirements of the business records exception to the hearsay rule, Benight, in her affidavit, did not aver that she was familiar with the plaintiff’s mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed … . Moreover, the plaintiff failed to demonstrate, prima facie, that the notices included a list of five housing counseling agencies, as required by the statute (see RPAPL 1304[2]). Although Benight stated in her affidavit that the notices included such a list, the copies of the notices submitted merely included information about contacting a hotline that would provide “free personalized advice from housing counseling agencies certified by the U.S. Department of Housing and Urban Development.” Bank of Am., N.A. v Wheatley, 2018 NY Slip Op 01175, Second Dept 2-21-18

FORECLOSURE (BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION PROPERLY DENIED (SECOND DEPT))/EVIDENCE (FORECLOSURE, (BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION PROPERLY DENIED (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION PROPERLY DENIED (SECOND DEPT))/BUSINESS RECORDS (HEARSAY, FORECLOSURE, BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION PROPERLY DENIED (SECOND DEPT))/HEARSAY (FORECLOSURE, BUSINESS RECORDS EXCEPTION, BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION PROPERLY DENIED (SECOND DEPT))

/ ,

ALTHOUGH THE BANK’S MOTION FOR SUMMARY JUDGMENT WAS NOT OPPOSED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, THE BANK DID NOT DEMONSTRATE STANDING WITH EVIDENCE ADMISSIBLE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s unopposed motion for summary judgment in this foreclosure action should not have been granted. Defendants raised the issue of plaintiff’s standing in their answer to the complaint. The bank’s proof of standing was not admissible under the business records exception to the hearsay rule:

“A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is the holder or assignee of the underlying note at the time the action is commenced” … . “Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation” … .

The plaintiff attempted to establish its standing by submitting an affidavit of Jillian Thrasher, a contract management coordinator at Ocwen Loan Servicing, LLC (hereinafter Ocwen), the plaintiff’s loan servicer. Thrasher averred, in relevant part, that her affidavit was based upon her review of Ocwen’s business records, and that upon review of such records, the note was physically transferred to the plaintiff on December 1, 2006. The plaintiff failed to demonstrate that the records relied upon by Thrasher were admissible under the business records exception to the hearsay rule (see CPLR 4518[a]) because Thrasher, an employee of Ocwen, did not attest that she was personally familiar with the plaintiff’s record-keeping practices and procedures … . US Bank N.A. v Ballin, 2018 NY Slip Op 01212, Second Dept 2-21-18

FORECLOSURE (ALTHOUGH THE BANK’S MOTION FOR SUMMARY JUDGMENT WAS NOT OPPOSED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, THE BANK DID NOT DEMONSTRATE STANDING WITH EVIDENCE ADMISSIBLE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT))/EVIDENCE (FORECLOSURE, ALTHOUGH THE BANK’S MOTION FOR SUMMARY JUDGMENT WAS NOT OPPOSED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, THE BANK DID NOT DEMONSTRATE STANDING WITH EVIDENCE ADMISSIBLE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT))/STANDING (FORECLOSURE, ALTHOUGH THE BANK’S MOTION FOR SUMMARY JUDGMENT WAS NOT OPPOSED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, THE BANK DID NOT DEMONSTRATE STANDING WITH EVIDENCE ADMISSIBLE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT))/HEARSAY (FORECLOSURE, ALTHOUGH THE BANK’S MOTION FOR SUMMARY JUDGMENT WAS NOT OPPOSED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, THE BANK DID NOT DEMONSTRATE STANDING WITH EVIDENCE ADMISSIBLE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT))/BUSINESS RECORDS (FORECLOSURE, HEARSAY, ALTHOUGH THE BANK’S MOTION FOR SUMMARY JUDGMENT WAS NOT OPPOSED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, THE BANK DID NOT DEMONSTRATE STANDING WITH EVIDENCE ADMISSIBLE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT))

/

PATERNITY PETITION SHOULD HAVE BEEN DISMISSED ON EQUITABLE ESTOPPEL GROUNDS IN THIS ARTIFICIAL INSEMINATION CASE (SECOND DEPT).

The Second Department, reversing Family Court, determined the paternity petition should have been dismissed on equitable estoppel grounds. Petitioner provided semen for the artificial insemination of mother, who is married to her same sex partner. The artificial insemination was not done by a doctor in accordance with Domestic Relations Law 73, so the statutory presumption of legitimacy did not apply. The parties agreed in a “Three-Party Donor Contract” that the petitioner would not have parental rights or responsibilities:

… [I]t is undisputed that all of the parties intended that the petitioner would not be a parent to the child, even if they did contemplate some amount of contact after birth. The petitioner was not present at the child’s birth, and was not named on her birth certificate. Despite the fact that he was undeniably aware of the child’s birth and his possible claim to paternity, the petitioner waited more than three years to assert his claim of parentage. During that time, the child has lived with and been cared for exclusively by the respondents, each of whom has developed a loving parental relationship with her. Although the petitioner asserts that he has had some contact with the child, he does not claim that he has developed a parental relationship with the child or that she recognizes him as a father. Significantly, the petitioner acknowledges that he does not actually seek a parental role, only that he wants a legal right to visitation with the child. Under these circumstances, we find that a hearing was unnecessary, and it is in the child’s best interests to dismiss the paternity petition on the ground of equitable estoppel …  Under the particular circumstances presented here, it would be unjust and inequitable to disrupt the child’s close parental relationship with each of the respondents and permit the petitioner take a parental role when he has knowingly acquiesced in the development of a close relationship between the child and another parent figure … . Matter of Joseph O. v Danielle B., 2018 NY Slip Op 01192, Second Dept 2-21-18

FAMILY LAW (PATERNITY PETITION SHOULD HAVE BEEN DISMISSED ON EQUITABLE ESTOPPEL GROUNDS IN THIS ARTIFICIAL INSEMINATION CASE (SECOND DEPT))/ARTIFICIAL INSEMINATION (FAMILY LAW, PATERNITY PETITION SHOULD HAVE BEEN DISMISSED ON EQUITABLE ESTOPPEL GROUNDS IN THIS ARTIFICIAL INSEMINATION CASE (SECOND DEPT))/PATERNITY (ARTIFICIAL INSEMINATION, (PATERNITY PETITION SHOULD HAVE BEEN DISMISSED ON EQUITABLE ESTOPPEL GROUNDS IN THIS ARTIFICIAL INSEMINATION CASE (SECOND DEPT))/EQUITABLE ESTOPPEL (FAMILY LAW, PATERNITY PETITION SHOULD HAVE BEEN DISMISSED ON EQUITABLE ESTOPPEL GROUNDS IN THIS ARTIFICIAL INSEMINATION CASE (SECOND DEPT))

/

NO CAUSAL CONNECTION BETWEEN FATHER’S MENTAL ILLNESS AND ACTUAL OR POTENTIAL HARM TO THE CHILD, NEGLECT FINDING VACATED (SECOND DEPT).

The Second Department, reversing Family Court, determined that a causal connection between father’s mental illness and actual or potential harm to the child (Kyle) had not been demonstrated. The neglect finding was vacated:

While parental neglect may be based on mental illness, proof of a parent’s mental illness alone will not support a finding of neglect … . Rather, the petitioner must adduce evidence sufficient to “establish a causal connection between the parent’s condition, and the actual or potential harm to the [child]”… .

In this case, we agree with the father and the attorney for the children that ACS [Administration for Children’s Services] failed to establish that there was a causal connection between the father’s mental illness and any actual or potential harm to Kyle … . The evidence did not establish that the father’s mental illness, for which he was receiving treatment, precluded him from being able to care for Kyle, or placed Kyle’s physical, mental, or emotional condition in imminent danger of becoming impaired … . Matter of Geoffrey D. (Everton D.), 2018 NY Slip Op 01185, Second Dept 2-21-18

FAMILY LAW (NEGLECT, MENTAL ILLNESS, NO CAUSAL CONNECTION BETWEEN FATHER’S MENTAL ILLNESS AND ACTUAL OR POTENTIAL HARM TO THE CHILD, NEGLECT FINDING VACATED (SECOND DEPT))/NEGLECT (FAMILY LAW, MENTAL ILLNESS, NO CAUSAL CONNECTION BETWEEN FATHER’S MENTAL ILLNESS AND ACTUAL OR POTENTIAL HARM TO THE CHILD, NEGLECT FINDING VACATED (SECOND DEPT))/MENTAL ILLNESS (FAMILY LAW, NEGLECT, NO CAUSAL CONNECTION BETWEEN FATHER’S MENTAL ILLNESS AND ACTUAL OR POTENTIAL HARM TO THE CHILD, NEGLECT FINDING VACATED (SECOND DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy