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SUPREME COURT DID NOT CITE ANY “EXTRAORDINARY CIRCUMSTANCES” TO JUSTIFY ITS SUA-SPONTE DISMISSAL OF THE COMPLAINT IN THIS DIVORCE ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this divorce action, determined there was no demonstration of “extraordinary circumstances” to justify Supreme Court’s sua sponte dismissal of the complaint: “A court’s power to dismiss a [complaint], sua sponte, is to be used sparingly, and only when extraordinary circumstances exist to warrant dismissal” … . Here, the […]

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ALTHOUGH ONLY STEPHEN BOTT SIGNED THE NOTE, BOTH HE AND CHRISTINE BOTT SIGNED THE MORTGAGE; THEREFORE CHRISTINE BOTT WAS A “BORROWER” ENTITLED TO SEPARATE NOTICE OF THE FORECLOSURE PURSUANT TO RPAPL 1304; THE JOINT NOTICE WAS INVALID (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s failure to notify both borrowers of the foreclosure action violated RPAPL 1304 and required that defendants’ summary judgment motion be granted. Although only Stephen Bott signed the note, he and Christine Bott executed the mortgage instrument. Therefor the joint RPAPL 1304 notice was invalid: Although Stephen […]

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PLAINTIFF’S DECEDENT COMMITTED SUICIDE BY JUMPING FROM A LEDGE OUTSIDE HIS HOTEL ROOM; HOTEL STAFF DID NOT ASSUME A DUTY OF CARE FOR PLAINTIFF’S DECEDENT; A DELAY AFTER A FAMILY MEMBER’S REQUEST THAT HOTEL STAFF CALL THE POLICE WAS NOT DEMONSTRATED BY EXPERT OPINION TO HAVE CAUSED THE SUICIDE (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Pitt-Burke, over an extensive dissenting opinion, determined the defendant hotel did not assume a duty of care for a hotel guest who committed suicide and did not proximately cause plaintiff-decedent’s suicide. Hotel staff had been made aware of decedent’s family’s fear that decedent, […]

THE FOURTH DEPARTMENT REJECTED SUPREME COURT’S RULING THAT THE ARBITRATOR “MANIFESTLY DISREGARDED SUBSTANTIVE LAW” AND THAT THE ARBITRATION AWARD WAS “IRRATIONAL,” EXPLAINING THE CRITERIA FOR BOTH (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that none of Supreme Court’s grounds for vacating the arbitration award were valid. The arbitrator did not “manifestly disregard the substantive law.” The award was not “irrational.” The Fourth Department explained the criteria for both: … [T]he court determined that the arbitrator manifestly disregarded “substantive law” applicable to […]

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FAILURE TO INFORM DEFENDANT A FINE IS PART OF THE SENTENCE RENDERED THE GUILTY PLEA INVOLUNTARY (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined the failure to inform defendant that a fine was part of the sentence rendered the plea involuntary: “[I]n order for a plea to be knowingly, voluntarily and intelligently entered, a defendant must be advised of the direct consequences of that plea” … . “The direct consequences of […]

THE DOCTRINE OF MERGER CAN BE APPLIED TO DISMISS A KIDNAPPING CHARGE EVEN IF THE LESSER OFFENSE IS NOT CHARGED (FOURTH DEPT).

The Fourth Department remitted the matter for consideration of the People’s remaining objection to applying the merger doctrine to the kidnapping charge. County Court had erroneously ruled the merger doctrine could not be applied to dismiss the kidnapping charge unless the lesser offense is also charged: … [D]efendant contends that the court erred in denying […]

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PLAINTIFF WAS INJURED USING DEFENDANT’S BOW; DEFENDANT MOVED FOR PERMISSION TO PERFORM TESTS ON THE BOW WHICH INVOLVED REMOVING AND THEN REPLACING THE DAMAGED COMPONENT OF THE BOW; THE JUSTIFICATION FOR SUCH TESTING WAS NOT DEMONSTRATED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant bow manufacturer (PSE) was not entitled to testing of the bow beyond the visual inspection already done. Plaintiff was struck in the eye when using the bow. Defendant moved for permission to replace the damaged component of the bow, test the bow, and then replace the damaged […]

THE MARIJUANA FELONY CONVICTION WHICH WAS THE BASIS FOR DEFENDANT’S SECOND FELONY OFFENDER STATUS WAS BASED ON A STATUTE WHICH HAS SINCE BEEN REPEALED AND REPLACED WITH A MISDEMEANOR; DEFENDANT WAS ENTITLED TO RESENTENCING AS A FIRST-TIME FELONY OFFENDER (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Bannister, determined defendant, who had been sentenced as a second felony offender, was entitled to resentencing as a first-time felony offender because his 2013 marijuana-felony conviction was based upon a statute which had been repealed and replaced by a misdemeanor: MRTA [Marihuana Regulation and Taxation Act] […]

HERE THE PEOPLE REQUESTED AN ADJOURNMENT OF THE HUNTLEY HEARING BUT THE RECORD IS SILENT ABOUT THE LENGTH OF THE REQUESTED ADJOURNMENT; THEREFORE THE ENTIRE TIME BETWEEN THE REQUEST AND THE HEARING WAS COUNTED AGAINST THE PEOPLE FOR “SPEEDY TRIAL” PURPOSES (FOURTH DEPT).

The Fourth Department, granting the speedy trial motion and dismissing the indictment, determined that the record did not indicate the length of an adjournment of the Huntley hearing requested by the People and, therefore, the entire time between the request and the hearing was chargeable to the People: “Normally, the People will be charged only […]

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