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Padilla v Kentucky, Which Held Attorney’s Failure to Inform Client of Immigration Consequences of Plea Was Ineffective Assistance, Not Applied Retroactively Under New York Constitution

The Second Department determined Padilla v Kentucky, 559 US 356, which held an attorney’s failure to inform his or her client of the immigration consequences of a plea constituted ineffective assistance of counsel, should not be applied retroactively under the New York Constitution: In People v Pepper (53 NY2d 213, cert denied sub nom. New […]

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Where There Are Sharp Factual Disputes, Forensic Evaluations Are Required for a Guardianship Determination

In a case with sharp factual disputes, the Second Department determined Family Court should not have decided the issue of guardianship without the aid of forensic evaluations: The Family Court erred in deciding the issue of guardianship without the aid of forensic evaluations of Stephanie, Shanika, and Jada. Although forensic evaluations are not always necessary, […]

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Mother Did Not Stipulate to Order of Reference; Therefore Referee Only Had Power to Hear and Report

The Second Department determined mother did not stipulate to the order of reference (referring the custody and visitation proceeding to a referee) in the manner required by CPLR 2104.  Therefore, although the order of reference authorized the referee to “hear and determine the parties’ rights to custody … and visitation…,” absent the parties’ consent to […]

Father’s Petition to Relocate to North Carolina Properly Denied

The Second Department determined Family Court had properly denied father’s petition for permission to relocate to North Carolina.  A prior consent order had awarded joint legal custody with primary physical custody to the father.  The father, who is in the military, was transferred from West Point to Fort Bragg in North Carolina.  The court explained […]

Out of State Visitation for All School Breaks and Three-Day Weekends (In Addition To Summers) Should Not Have Been Granted

The Second Department determined Family Court correctly awarded visitation with the father in Kentucky for the entire summer, but should not have awarded visitation with the father in Kentucky for school breaks and three-day weekends throughout the year:  In remitting the matter for re-working the The visitation, the court wrote: The provision of the visitation […]

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E-Mail Met All Criteria for a Stipulation of Settlement Including the “Subscribed Writing” Requirement

In a full-fledged opinion by Justice Sgroi, the Second Department determined an e-mail message satisfied the criteria of CPLR 2104 as a binding and enforceable stipulation of settlement. The e-mail, written by plaintiff’s counsel, read: “Per our phone conversation today, May 3, 2011, you accepted my offer of $230,000 to settle this case. Please have […]

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Dismissal of Complaint Was Too Severe a Sanction for Spoliation

The New York City Housing Authority (NYCHA) sued a security company and others based upon a fire that apparently was started by a cigarette carelessly thrown into a wastebasket.  During discovery defendants requested the surveillance video.  Plaintiff had reviewed the video and apparently had deleted portions of it considered unnecessary.  Defendants’ motion to dismiss pursuant […]

Janitorial Schedule Alone Not Enough to Demonstrate Lack of Constructive Notice

In a slip and fall case, over a dissent, the First Department determined the defendant did not demonstrate a lack of constructive notice of a wet substance on the stairway of defendant’s apartment building.  Although the defendant produced evidence of a janitorial schedule, the defendant did not present any evidence the schedule was followed on […]

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