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NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT).

The Second Department, reversing Family Court, determined that the appellant did not have an intimate relationship with petitioner and therefore Family Court did not have jurisdiction over the family offense proceeding against appellant and could not issue an order of protection. Even though the order of protection had expired, the continuing reputational consequences of the order of protection justified determining the appeal:

The petitioner is the live-in girlfriend of the appellant's brother. The petitioner and the appellant live in the same building, on different floors. The petitioner filed a family offense petition against the appellant, alleging that she had physically attacked and verbally threatened her. * * *

The Family Court is a court of limited jurisdiction, and “cannot exercise powers beyond those granted to it by statute”… . “Pursuant to Family Court Act § 812(1), the Family Court's jurisdiction in family offense proceedings is limited to certain prescribed criminal acts that occur between spouses or former spouses, or between parent and child or between members of the same family or household'” … . “[M]embers of the same family or household” include, among others, “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” … . Expressly excluded from the ambit of “intimate relationship” are “casual acquaintance[s]” and “ordinary fraternization between two individuals in business or social contexts” … . Beyond those delineated exclusions, what qualifies as an intimate relationship within the meaning of Family Court Act § 812(1)(e) is determined on a case-by-case basis … . Relevant factors include “the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship” … .

Here, the parties have no direct relationship and are only connected through a third party, who is the petitioner's live-in boyfriend and the appellant's brother. Additionally, the parties have never resided together and their contact with one another has been purely by happenstance, as they live in the same building. Accordingly, they do not have an intimate relationship within the meaning of Family Court Act § 812(1)(e). Matter of Royster v Murray, 2018 NY Slip Op 00151, Second Dept 1-10-18

FAMILY LAW (NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))/FAMILY OFFENSES (FAMILY COURT, NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))/INTIMATE RELATIONSHIP (FAMILY COURT, NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))/CRIMINAL LAW (FAMILY OFFENSES, NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))/APPEALS (FAMILY LAW, FAMILY OFFENSES, ORDER OF PROTECTION, NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))/ORDER OF PROTECTION (APPEALS, FAMILY LAW, FAMILY OFFENSES, ORDER OF PROTECTION, NO INTIMATE RELATIONSHIP, FAMILY COURT DID NOT HAVE JURISDICTION IN THIS FAMILY OFFENSE PROCEEDING, EVEN THOUGH THE ORDER OF PROTECTION HAD EXPIRED APPELLATE REVIEW WAS APPROPRIATE BECAUSE OF THE REPUTATIONAL CONSEQUENCES (SECOND DEPT))

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PRENUPTIAL AGREEMENT SHOULD HAVE BEEN SET ASIDE AS UNCONSCIONABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant-wife's motion to set aside the prenuptial agreement should have been granted:

“An agreement between spouses or prospective spouses should be closely scrutinized, and may be set aside upon a showing that it is unconscionable, or the result of fraud, or where it is shown to be manifestly unfair to one spouse because of overreaching on the part of the other spouse” …  “An agreement is unconscionable if it is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense'”… . An agreement that might not have been unconscionable when entered into may become unconscionable at the time a final judgment would be entered … . The burden of proof as to unconscionability is on the party seeking to set aside the agreement … .

Here, contrary to the Supreme Court's determination, the defendant sustained her burden of establishing that the prenuptial agreement was, at the time this action was before the court, unconscionable. Enforcement of the agreement would result in the risk of the defendant's becoming a public charge. The defendant, who is unemployed, largely without assets, and the primary caregiver for the parties' young children, would, under the prenuptial agreement, receive only $20,000, in full satisfaction of all claims, even though the plaintiff earns approximately $300,000 annually as a physician … . Taha v Elzemity, 2018 NY Slip Op 00188, Second Dept 1-10-18

FAMILY LAW (PRENUPTIAL AGREEMENT SHOULD HAVE BEEN SET ASIDE AS UNCONSCIONABLE (SECOND DEPT))/PRENUPTIAL AGREEMENT (FAMILY LAW, PRENUPTIAL AGREEMENT SHOULD HAVE BEEN SET ASIDE AS UNCONSCIONABLE (SECOND DEPT))/UNCONSCIONABLE (FAMILY LAW, (PRENUPTIAL AGREEMENT SHOULD HAVE BEEN SET ASIDE AS UNCONSCIONABLE (SECOND DEPT))/CONTRACT LAW (FAMILY LAW, PRENUPTIAL AGREEMENT SHOULD HAVE BEEN SET ASIDE AS UNCONSCIONABLE (SECOND DEPT))

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PRIMA FACIE CASE OF NEGLECT BASED UPON MOTHER’S MENTAL CONDITION HAD BEEN MADE OUT, THE NEGLECT PETITION SHOULD NOT HAVE BEEN DISMISSED, FACT THAT MOTHER HAD NOT BEEN DIAGNOSED AS SUFFERING FROM A MENTAL ILLNESS WAS NOT DISPOSITIVE (SECOND DEPT).

The Second Department, reversing Family Court, determined a prima facie showing of neglect based upon mother's mental condition had been made. Therefore mother's motion to dismiss the neglect petition should not have been granted. The court noted that the fact that mother had not been diagnosed as having a mental illness was not dispositive:

… [T]he petitioner presented a prima facie case of neglect. At the fact-finding hearing, the petitioner introduced into evidence a recording of two 911 calls made by the mother's stepdaughter, in which she reported, among other things, that the mother, while holding the child, was hitting and slapping the mother's sister. She further stated that the mother was manic, yelling, throwing things, and getting violent. Additionally, the petitioner presented the testimony of the attending psychiatrist in the emergency room at Queens Hospital Center who, based upon his assessment of the mother's mental condition, found that she was unable to care for the child and ordered her admission into a psychiatric emergency program that requires frequent observation for at least 24 hours. The mother's hospital records, which the petitioner also introduced into evidence, demonstrated that the mother's mental condition, which was described as paranoid, violent, and lacking in insight and impulse control, had not resolved within 24 hours and necessitated her admission into the extended observation unit. Moreover, “[t]he absence of a diagnosed condition does not preclude a finding of neglect” … . Therefore, although the petitioner did not show that the mother had a specific diagnosed mental illness, the petitioner was not required to make such a showing to avoid dismissal…. . Matter of Catalina A. (Evelyn C.), 2018 NY Slip Op 00135, Second Dept 1-10-18

FAMILY LAW (NEGLECT, PRIMA FACIE CASE OF NEGLECT BASED UPON MOTHER'S MENTAL CONDITION HAD BEEN MADE OUT, THE NEGLECT PETITION SHOULD NOT HAVE BEEN DISMISSED, FACT THAT MOTHER HAD NOT BEEN DIAGNOSED AS SUFFERING FROM A MENTAL ILLNESS WAS NOT DISPOSITIVE (SECOND DEPT))/NEGLECT (FAMILY LAW, PRIMA FACIE CASE OF NEGLECT BASED UPON MOTHER'S MENTAL CONDITION HAD BEEN MADE OUT, THE NEGLECT PETITION SHOULD NOT HAVE BEEN DISMISSED, FACT THAT MOTHER HAD NOT BEEN DIAGNOSED AS SUFFERING FROM A MENTAL ILLNESS WAS NOT DISPOSITIVE (SECOND DEPT))/MENTAL ILLNESS (FAMILY LAW, NEGLECT, PRIMA FACIE CASE OF NEGLECT BASED UPON MOTHER'S MENTAL CONDITION HAD BEEN MADE OUT, THE NEGLECT PETITION SHOULD NOT HAVE BEEN DISMISSED, FACT THAT MOTHER HAD NOT BEEN DIAGNOSED AS SUFFERING FROM A MENTAL ILLNESS WAS NOT DISPOSITIVE (SECOND DEPT))

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ISSUING A PERMIT FOR THE WITHDRAWAL OF UP TO 1.5 BILLION GALLONS OF RIVER WATER PER DAY TO COOL A POWER PLANT IS NOT A MINISTERIAL, NON-DISCRETIONARY ACT, THEREFORE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) APPLIES TO THE PERMITTING PROCESS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connolly, reversing Supreme Court, determined that the Department of Environmental Conservation's (DEC's) issuance of a permit for the withdrawal of up to 1.5 billion gallons of river water (per day) to cool an electric power plant was not a ministerial, non-discretionary act. Therefore the permitting process was not exempt from the requirements of the State Environmental Quality Review Act (SEQRA), including the need for an environmental impact statement (EIS):

Here, while ECL [Environmental Conservation Law] 15-1501(9) states that the DEC “shall issue” an initial permit to an existing operator for its self-reported maximum water withdrawal capacity, the statute provides that such initial permit is “subject to appropriate terms and conditions as required under this article.” Notably, the WRPA [Water Resources Protection Act] specifically provides the DEC with the power “to grant or deny a permit or to grant a permit with conditions” … . The statutory factors that the DEC is required to consider when reviewing an application and imposing conditions on the permittee do not lend themselves to mechanical application. For instance, whether “the proposed water withdrawal will be implemented in a manner that incorporates environmentally sound and economically feasible water conservation measures” … will almost certainly vary from operator to operator, or from water source to water source. The DEC's own regulations state that an “initial permit” must include “environmentally sound and economically feasible water conservation measures to promote the efficient use of supplies” … . Whether a condition is “appropriate” for a given operator is a matter that falls within the DEC's expertise and involves the exercise of judgment, and, therefore, implicates matters of discretion … . Matter of Sierra Club v Martens, 2018 NY Slip Op 00153, Second Dept 1-10-18

ENVIRONMENTAL LAW (ISSUING A PERMIT FOR THE WITHDRAWAL OF UP TO 1.5 BILLION GALLONS OF RIVER WATER PER DAY TO COOL A POWER PLANT IS NOT A MINISTERIAL, NON-DISCRETIONARY ACT, THEREFORE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) APPLIES TO THE PERMITTING PROCESS (SECOND DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (RIVER WATER, ISSUING A PERMIT FOR THE WITHDRAWAL OF UP TO 1.5 BILLION GALLONS OF RIVER WATER PER DAY TO COOL A POWER PLANT IS NOT A MINISTERIAL, NON-DISCRETIONARY ACT, THEREFORE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) APPLIES TO THE PERMITTING PROCESS (SECOND DEPT))/RIVERS (ENVIRONMENTAL LAW, ISSUING A PERMIT FOR THE WITHDRAWAL OF UP TO 1.5 BILLION GALLONS OF RIVER WATER PER DAY TO COOL A POWER PLANT IS NOT A MINISTERIAL, NON-DISCRETIONARY ACT, THEREFORE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) APPLIES TO THE PERMITTING PROCESS (SECOND DEPT))/WATER RESOURCES PROTECTION ACT (WRPA)  (RIVER WATER, ISSUING A PERMIT FOR THE WITHDRAWAL OF UP TO 1.5 BILLION GALLONS OF RIVER WATER PER DAY TO COOL A POWER PLANT IS NOT A MINISTERIAL, NON-DISCRETIONARY ACT, THEREFORE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) APPLIES TO THE PERMITTING PROCESS (SECOND DEPT))/ELECTRIC POWER PLANTS (RIVER WATER, ENVIRONMENTAL LAW, ISSUING A PERMIT FOR THE WITHDRAWAL OF UP TO 1.5 BILLION GALLONS OF RIVER WATER PER DAY TO COOL A POWER PLANT IS NOT A MINISTERIAL, NON-DISCRETIONARY ACT, THEREFORE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) APPLIES TO THE PERMITTING PROCESS (SECOND DEPT))

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NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST SCHOOL SHOULD NOT HAVE SURVIVED SCHOOL’S MOTION FOR SUMMARY JUDGMENT, PLAINTIFF KINDERGARTEN STUDENT TRIPPED CARRYING A LUNCH TRAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant school's (Board of Education's) motion for summary judgment in this negligent supervision action should have been granted. The four-year-old plaintiff tripped and fell as she was carrying a food tray:

“Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision” … . “Schools are not insurers of safety, however, for they cannot reasonably be expected to continuously supervise and control all movements and activities of students” … .

Here, the defendants made a prima facie showing of entitlement to judgment as a matter of law by establishing that the level of supervision afforded to the infant plaintiff was adequate … .. Contrary to the plaintiffs' contention, at the time of the accident, the infant plaintiff was in the midst of executing an age-appropriate task which she and her classmates had performed every single school day since the start of the 2012/2013 academic year … . Additionally, the mother's affidavit, which contradicted her own 50-h hearing testimony and the infant plaintiff's deposition testimony, was insufficient to raise a triable issue of fact … . L.R. v City of New York, 2018 NY Slip Op 00132, Second Dept 1-10-18

EDUCATION-SCHOOL LAW (NEGLIGENT SUPERVISION, NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST SCHOOL SHOULD NOT HAVE SURVIVED SCHOOL'S MOTION FOR SUMMARY JUDGMENT, PLAINTIFF KINDERGARTEN STUDENT TRIPPED CARRYING A LUNCH TRAY (SECOND DEPT))/NEGLIGENCE (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION, NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST SCHOOL SHOULD NOT HAVE SURVIVED SCHOOL'S MOTION FOR SUMMARY JUDGMENT, PLAINTIFF KINDERGARTEN STUDENT TRIPPED CARRYING A LUNCH TRAY (SECOND DEPT))/NEGLIGENT SUPERVISION (EDUCATION-SCHOOL LAW, NEGLIGENT SUPERVISION, NEGLIGENT SUPERVISION CAUSE OF ACTION AGAINST SCHOOL SHOULD NOT HAVE SURVIVED SCHOOL'S MOTION FOR SUMMARY JUDGMENT, PLAINTIFF KINDERGARTEN STUDENT TRIPPED CARRYING A LUNCH TRAY (SECOND DEPT))

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DEFENDANT’S STATEMENT TO A NEWSPAPER WAS NOT LIBELOUS BECAUSE IT FELL WITHIN THE JUDICIAL PRIVILEGE, THE STATEMENT WOULD BE UNDERSTOOD TO REFER TO AN ALLEGATION IN A LAWSUIT (FIRST DEPT).

The First Department determined that defendant's statement to the Wall Street Journal was within the judicial privilege:

Defendant['s]  … statement to the Wall Street Journal, that plaintiff investment advisor “just took our money,” fell within the statutory privilege against libel claims for the publication of a fair and true report of a judicial proceeding… . The statement, in the context of the article, which was about lawsuits filed against plaintiff, would be understood by an ordinary reader to refer to defendant Muirfield Capital Management LLC's claim that plaintiff improperly withdrew money from an investment fund plaintiff managed, in which Muirfield invested … . Highland Capital Mgt., L.P. v Stern, 2018 NY Slip Op 00230, First Dept 1-10-18

DEFAMATION (JUDICIAL PRIVILEGE. DEFENDANT'S STATEMENT TO A NEWSPAPER WAS NOT LIBELOUS BECAUSE IT FELL WITHIN THE JUDICIAL PRIVILEGE, THE STATEMENT WOULD BE UNDERSTOOD TO REFER TO AN ALLEGATION IN A LAWSUIT (FIRST DEPT))/LIBEL (JUDICIAL PRIVILEGE. DEFENDANT'S STATEMENT TO A NEWSPAPER WAS NOT LIBELOUS BECAUSE IT FELL WITHIN THE JUDICIAL PRIVILEGE, THE STATEMENT WOULD BE UNDERSTOOD TO REFER TO AN ALLEGATION IN A LAWSUIT (FIRST DEPT))/PRIVILEGE (DEFAMATION, JUDICIAL PRIVILEGE, DEFENDANT'S STATEMENT TO A NEWSPAPER WAS NOT LIBELOUS BECAUSE IT FELL WITHIN THE JUDICIAL PRIVILEGE, THE STATEMENT WOULD BE UNDERSTOOD TO REFER TO AN ALLEGATION IN A LAWSUIT (FIRST DEPT))/JUDICIAL PRIVILEGE (DEFAMATION, DEFENDANT'S STATEMENT TO A NEWSPAPER WAS NOT LIBELOUS BECAUSE IT FELL WITHIN THE JUDICIAL PRIVILEGE, THE STATEMENT WOULD BE UNDERSTOOD TO REFER TO AN ALLEGATION IN A LAWSUIT (FIRST DEPT))

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DENIAL OF PAROLE WAS IRRATIONAL, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Parole Board's denial of parole was irrational. When petitioner was 17 he murdered a 14-year-old acquaintance. While in prison petitioner earned three college degrees and was deemed a low risk pursuant to the Correctional Offender Management for Profiling for Alternative Sanction (COMPAS) assessment:

Judicial review of a determination of the Parole Board is narrowly circumscribed … . While the Parole Board is required to consider the relevant statutory factors … , it is not required to address each factor in its decision or accord all of the factors equal weight… .

Here, the petitioner demonstrated his entitlement to having the determination of the Parole Board set aside. The Parole Board's findings that there was a reasonable probability that, if released, the petitioner would not remain at liberty without violating the law, and that his release would be incompatible with the welfare of society and would so deprecate the serious nature of the crime as to undermine respect for the law, are without support in the record … . …

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.. .[T]he record demonstrates that the petitioner took full responsibility for his actions, stating “I don't blame it on the drugs. I blame it on me. I'm responsible. I was responsible for taking drugs and ultimately I'm responsible for what happened while I was under the influence of those drugs.” The petitioner also acknowledged that he had not forgotten the reason he was in prison, he was aware of the damage he had done to the victim, her family, and his own family, and he deeply regretted that his “life took that turn at that time but [he was] not that 17 year old angry kid anymore.” Matter of Coleman v New York State Dept. of Corr. & Community Supervision, 2018 NY Slip Op 00138, Second Dept 1-10-18

CRIMINAL LAW (PAROLE, DENIAL OF PAROLE WAS IRRATIONAL, SUPREME COURT REVERSED (SECOND DEPT))/PAROLE (CRIMINAL LAW, DENIAL OF PAROLE WAS IRRATIONAL, SUPREME COURT REVERSED (SECOND DEPT))

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THE ABSENCE OF A PRICE FOR INTERNET SERVICE IN THE CONTRACT FOR THE PURCHASE OF SATELLITE TELEVISION SERVICE RENDERED THE CONTRACT AN UNENFORCEABLE AGREEMENT TO AGREE (SECOND DEPT).

The Second Department determined defendant's motion for summary judgment in this contract action was properly granted. The agreement for the purchase of satellite television equipment was silent about fees for Internet service, which constituted a material term. Therefore the agreement was merely an unenforceable agreement to agree:

“To create a binding contract, there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms” … . “[A] court cannot enforce a contract unless it is able to determine what in fact the parties have agreed to” … . Accordingly, “[i]f an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract” … . “While there are some instances where a party may agree to be bound to a contract even where a material term is left open . . . there must be sufficient evidence that both parties intended that arrangement” … . “[A] mere agreement to agree, in which a material term is left for future negotiations, is unenforceable” … , unless “a methodology for determining the material terms can be found within the four corners of the agreement or the agreement refers to an objective extrinsic event, condition, or standard by which the material terms may be determined” … .

Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting evidence establishing that the contract lacked a material term regarding the price or fees to be paid to the plaintiff for Internet-related service, and therefore constituted an unenforceable agreement to agree … . Total Telcom Group Corp. v Kendal on Hudson, 2018 NY Slip Op 00189, Second Dept 1-10-18

CONTRACT LAW (THE ABSENCE OF A PRICE FOR INTERNET SERVICE IN THE CONTRACT FOR THE PURCHASE OF SATELLITE TELEVISION SERVICE RENDERED THE CONTRACT AN UNENFORCEABLE AGREEMENT TO AGREE (SECOND DEPT))/AGREEMENT TO AGREE  (THE ABSENCE OF A PRICE FOR INTERNET SERVICE IN THE CONTRACT FOR THE PURCHASE OF SATELLITE TELEVISION SERVICE RENDERED THE CONTRACT AN UNENFORCEABLE AGREEMENT TO AGREE (SECOND DEPT))/MATERIAL TERM (CONTRACT LAW, THE ABSENCE OF A PRICE FOR INTERNET SERVICE IN THE CONTRACT FOR THE PURCHASE OF SATELLITE TELEVISION SERVICE RENDERED THE CONTRACT AN UNENFORCEABLE AGREEMENT TO AGREE (SECOND DEPT))/PRICE (CONTRACT LAW, MATERIAL TERM, THE ABSENCE OF A PRICE FOR INTERNET SERVICE IN THE CONTRACT FOR THE PURCHASE OF SATELLITE TELEVISION SERVICE RENDERED THE CONTRACT AN UNENFORCEABLE AGREEMENT TO AGREE (SECOND DEPT))

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DEFENDANT WAS ENTITLED TO A HEARING ON HER MOTION TO DISMISS THE COMPLAINT FOR FAILURE OF PROPER SERVICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing about whether the complaint should be dismissed for failure to properly serve her:

“A process server's affidavit of service ordinarily constitutes prima facie evidence of proper service” … . “Bare and unsubstantiated denials are insufficient to rebut the presumption of service” … . “However, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing”… . “If an issue regarding service turns upon a question of credibility, a hearing should be held to render a determination on this issue” … .

Here, the Supreme Court erred in determining that branch of the motion of the defendant Delia Archibong (hereinafter the defendant) which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction without first conducting a hearing. The defendant demonstrated her entitlement to a hearing on the issue of service through her affidavit, in which she denied that she knew anyone by the name of Tom Jonel, the person allegedly served at her house, that no one by that name or with that physical description lived in her house, and that she was the only person at home when the summons and complaint were allegedly served … . HSBC Bank USA, N.A. v Archibong, 2018 NY Slip Op 00131, Second Dept 1-10-18

CIVIL PROCEDURE (SERVICE OF PROCESS, DEFENDANT WAS ENTITLED TO A HEARING ON HER MOTION TO DISMISS THE COMPLAINT FOR FAILURE OF PROPER SERVICE (SECOND DEPT))/SERVICE OF PROCESS (DEFENDANT WAS ENTITLED TO A HEARING ON HER MOTION TO DISMISS THE COMPLAINT FOR FAILURE OF PROPER SERVICE (SECOND DEPT))

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ATTORNEY ENTITLED TO FEES PURSUANT TO QUANTUM MERUIT DESPITE FAILURE TO FILE A RETAINER STATEMENT AND THE ABSENCE OF A FEE SHARING AGREEMENT (SECOND DEPT).

The Second Department determined petitioner-attorney was entitled to fees earned in a medical malpractice action prior to the petitioner's suspension and disbarment. Petitioner sought the fees from substitute counsel (DMR) under a quantum meruit theory. Petitioner's failure to file a retainer statement and the absence of a fee-sharing agreement did not preclude quantum meruit recovery:

… [T]he petitioner was not precluded from recovery on the ground that he failed to file a retainer statement with the Office of Court Administration in accordance with 22 NYCRR 691.20(a)(1), since the petitioner did not seek the recovery of fees on a breach of contract theory, but solely on a quantum meruit basis … . The lack of a fee-sharing agreement between the petitioner and DMR also did not preclude the petitioner from seeking the recovery of fees against DMR … . Moreover, the petitioner did not forfeit his right to recover fees for the work he performed in the medical malpractice action prior to his suspension … . Matter of Grossbarth v Dankner, Milstein & Ruffo, P.C., 2018 NY Slip Op 00144, Second Dept 1-10-18

ATTORNEYS (FEES, QUANTUM MERUIT, ATTORNEY ENTITLED TO FEES PURSUANT TO QUANTUM MERUIT DESPITE FAILURE TO FILE A RETAINER STATEMENT AND THE ABSENCE OF A FEE SHARING AGREEMENT (SECOND DEPT))/ATTORNEY'S FEES (QUANTUM MERUIT, ATTORNEY ENTITLED TO FEES PURSUANT TO QUANTUM MERUIT DESPITE FAILURE TO FILE A RETAINER STATEMENT AND THE ABSENCE OF A FEE SHARING AGREEMENT (SECOND DEPT))/RETAINER STATEMENT (ATTORNEY'S FEES,  ATTORNEY ENTITLED TO FEES PURSUANT TO QUANTUM MERUIT DESPITE FAILURE TO FILE A RETAINER STATEMENT AND THE ABSENCE OF A FEE SHARING AGREEMENT (SECOND DEPT))/FEE SHARING AGREEMENT (ATTORNEY'S FEES,  ATTORNEY ENTITLED TO FEES PURSUANT TO QUANTUM MERUIT DESPITE FAILURE TO FILE A RETAINER STATEMENT AND THE ABSENCE OF A FEE SHARING AGREEMENT (SECOND DEPT))

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