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AN APPELLATE COURT CANNOT DETERMINE A SUPPRESSION MOTION BASED ON TRIAL EVIDENCE; THE TRIAL EVIDENCE REVEALED THE SEARCH OF DEFENDANT’S APARTMENT MAY HAVE BEEN UNLAWFUL; BASED UPON THE LIMITED INFORMATION AVAILABLE TO DEFENDANT WHEN THE SUPPRESSION MOTION WAS MADE, THE ALLEGATION THE POLICE DID NOT HAVE PERMISSION TO ENTER WAS ENOUGH TO WARRANT A PROBABLE CAUSE HEARING; MATTER REMITTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Pitt, reversing Supreme Court’s denial of a probable cause hearing, determined the evidence revealed for the first time at trial called into serious question whether the search of defendant’s apartment was unlawful. Prior to trial the information provided to defendant gave the impression the apartment was entered and searched pursuant to a warrant. At trial the police testified they entered the apartment two hours before the search warrant was issued. The defendant was convicted of drug possession. The suppression motion stated the police entered the apartment without defendant’s permission. Given the limited and misleading information available to the defendant at the time the suppression motion was made, the allegations in the motion were sufficient to warrant a probable cause hearing. The appeal was held in abeyance and the matter was sent back for the hearing:

… [T]he Appellate Division “may not make its own finding of an independent source based upon trial testimony” … . Thus, we cannot hold that the denial of the Mapp/Dunaway hearing was proper, and the claim unpreserved, due to legal arguments pertaining to the lawfulness of the search and based on evidence adduced at trial, well after the lower court ruled on the motion to suppress.

… [H]ere, the trial testimony is being used solely to determine the context of defendant’s motion, the extent of her lack of access to information …, and the extent of information withheld from the motion court prior to making its decision to summarily deny defendant’s motion. … [W]e find that defendant’s motion should not have been summarily denied pursuant to CPL 710.60, and a hearing should have been conducted to make the necessary findings of fact. People v Esperanza, 2022 NY Slip Op 00383, First Dept 1-25-22

 

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PETITIONERS DID NOT TAKE STEPS TO PRESERVE THE STATUS QUO AS THEY SOUGHT TO VACATE A CONSTRUCTION CONTRACT; THE CONSTRUCTION PROGRESSED TO THE POINT WHERE THE COURT MUST DISMISS THE APPEAL AS MOOT (THIRD DEPT).

The Third Department determined the petitioners’ appeal of the denial of a declaratory judgment seeking to vacate the award of a construction contract by the Office of State Comptroller (OSC) must be dismissed as moot. The petitioners did not seek to maintain the status quo by injunction and the work had progressed too far:

… [T]he doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy” … . Where a change in circumstances involves the substantial completion of construction, “courts must consider several factors, including whether the challengers sought preliminary injunctive relief or otherwise attempted to preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation”… . Although injunctive relief is theoretically available, as a project can be dismantled, courts consider how far the work has progressed toward completion in determining mootness … . Matter of Bothar Constr., LLC v Dominguez, 2022 NY Slip Op 00346, Third Dept 1-20-22

 

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THE LANDLORD’S SUMMARY PROCEEDING WAS PROPERLY BROUGHT IN SUPREME COURT BECAUSE COVID EXECUTIVE ORDERS PROHIBITED BRINGING THE ACTION IN CIVIL COURT; ALTHOUGH SUA SPONTE ORDERS ARE NOT APPEALABLE, THE NOTICE OF APPEAL WAS DEEMED A MOTION FOR LEAVE TO APPEAL (FIRST DEPT).

The First Department, reversing Supreme Court, determined Supreme Court should not have dismissed the landlord’s summary proceeding on the ground that it should have been brought in Civil Court, not Supreme Court. COVID-related Executive Orders prohibited actions for nonpayment of rent in Civil Court. The First Department noted that a sua sponte order is not appealable as of right, but deemed the notice of appeal to be a request for leave to appeal which was granted:

The motion court erred in sua sponte dismissing the complaint on the ground that this action was a landlord-tenant dispute that should have been brought as a summary proceeding in Civil Court. Supreme Court has unlimited general jurisdiction over all real property actions, including those commenced by a landlord against a tenant (NY Const, art VI, § 7[a] …). Supreme Court, however, has the discretion to decline to entertain such an action on the ground that a pending action in Civil Court was the proper forum … .

Here, Supreme Court was the appropriate forum for this action to recover rental arrears because the Executive Orders implemented in response to the pandemic precluded the landlord from commencing a nonpayment proceeding in Civil Court during the relevant period, compelling the landlord to commence this action. A&L 1664 LLC v Jaspar Hospitality LLC, 2022 NY Slip Op 00264, First Dept 1-18-22

 

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CRIMINAL SALE OF A CONTROLLED SUBSTANCE FIRST DEGREE AND THE RELATED CONSPIRACY CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT).

The Third Department determined the criminal sale of a controlled substance first degree and the related conspiracy convictions were against the weight of the evidence:

In a weight of the evidence review, we first determine whether, based on all of the credible evidence, a different finding would have been unreasonable, and, if not, we then “weigh the relative probative force of the conflicting testimony and the relative strength of the conflicting inferences that may be drawn from the testimony” to determine if the verdict is supported by the weight of the evidence … . . * * *

Although the jury may have been able to infer from the intercepted communications that defendant sold cocaine to Henry on October 28, 2017, the evidence failed to satisfy the two ounce or more weight element of criminal sale of a controlled substance in the first degree … . Under these circumstances, the evidence falls short of establishing the elements of criminal sale of a controlled substance in the first degree when viewed in a neutral light … . As defendant’s conspiracy conviction is premised upon the criminal sale in the first degree charge, it too must fall based upon a review of the weight of the evidence … . People v Adams, 2022 NY Slip Op 00076, Third Dept 1-6-22

 

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IN THIS ARTICLE 78 PROCEEDING, NO APPEAL LIES FROM A JUDGE’S DECLINING TO SIGN AN ORDER TO SHOW CAUSE; THE ONLY REMEDY IS A MOTION TO VACATE THE FINAL JUDGMENT (FIRST DEPT).

The First Department, in this Article 78 proceeding, noted that no appeal lies from a judge’s declining to sign an order to show cause. The only remedy is a motion to vacate the final judgment:

No appeal lies from an order declining to sign an order to show cause, since it is an ex parte order that does not decide a motion made on notice (see CPLR 5701[a][2] … ).

No party requests that we consider relief under CPLR 5704(a). In any event, we note that Supreme Court providently exercised its discretion in declining to sign plaintiffs’ proposed order to show cause … . Plaintiffs sought to bring on a motion to renew an order that denied the petition and dismissed the proceeding, thus terminating the special proceeding. Renewal is not available under such circumstances … . Instead, an application to vacate a final judgment must be brought pursuant to CPLR 5015 … . This principle applies specifically in the context of a challenge to “a judgment dismissing a CPLR article 78 petition” … . Matter of Alliance to End Chickens as Kaporos v New York City Police Dept., 2022 NY Slip Op 00041, First Dept 1-6-22

 

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ALTHOUGH THE MOTION TO DISMISS THE FORECLOSURE ACTION AS ABANDONED PURSUANT TO CPLR 3215 WAS DENIED ON A GROUND NOT RAISED BY THE PARTIES, THE ORDER WAS SELF-PRESERVED AND APPEALABLE; THE PRESENTATION OF AN ORDER OF REFERENCE WITHIN ONE YEAR OF DEFENDANT’S DEFAULT PRECLUDES A FINDING THAT THE ACTION WAS ABANDONED PURSUANT TO CPLR 3215, DESPITE THE MOTION COURT’S REJECTION OF THE ORDER AS INCOMPLETE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, over a concurrence and an extensive two-justice dissent, determined; (1) the dismissal of the foreclosure complaint as abandoned pursuant to CPLR 3215 was appealable, even though it was dismissed, sua sponte, on a ground not raised by the parties; and (2) the fact that the plaintiff submitted an order, albeit an order which was rejected for incompleteness, within one year of defendant’s default rendered  the dismissal pursuant to CPLR 3215 unavailable as a remedy:

The [motion] court employed CPLR 3215(c) reasoning, never argued by the parties, to decide a CPLR 3215(c) motion, just as in Rosenblatt [119 AD3d 45],  the court employed reasoning under CPLR 3212, which was never argued by the parties, to decide a CPLR 3212 summary judgment motion. Under the authority of either Rosenblatt or Tirado [175 AD3d 153], the analysis and reasoning of the court, in the order appealed from, although sua sponte, self-preserved the issues for appellate review because it was pursuant to the same CPLR section within which the plaintiff’s motion was based and was dispositive to the action. * * *

… [T]he plaintiff presented a proposed ex parte order of reference within the one-year statutory period. The fact that the Supreme Court rejected the order of reference as defective is beside the point, as the mere presentment of it established the plaintiff’s intent to proceed toward the entry of judgment and not to abandon the action … . Citibank, N.A. v Kerszko, 2022 NY Slip Op 00032, Second Dept 1-5-22

 

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THE ORDER ISSUED AFTER A TRAVERSE HEARING FINDING DEFENDANTS WERE NOT PROPERLY SERVED IS APPEALABLE PURSUANT TO CPLR 5501 (C); THE ORDER BRINGS UP FOR APPEAL WHETHER THE TRAVERSE HEARING WAS NECESSARY; THE MAJORITY C0NCLUDED THE HEARING WAS NOT NECESSARY; THERE WAS AN EXTENSIVE DISSENT (SECOND DEPT).

The Second Department, reversing Supreme Court, over an extensive concurrence and an extensive dissent, determined: (1) the order issued after a traverse hearing finding that defendant was not properly served in this foreclosure action was an appealable order pursuant to CPLR 5501 (c); (2) the order brings up for review the finding that a traverse hearing was necessary; and )3), defendants’ affidavit denying proper services was conclusory and, therefore, a traverse hearing was not required. The central issue in the decision is whether the order directing the traverse hearing had been brought for review by the order dismissing the complaint after the hearing:

… [O]ur jurisdiction is premised upon CPLR 5501(c), which directs that this Court “shall review questions of law and questions of fact on an appeal from a[n] . . . order of a court of original instance,” as well as the consistent line of cases from this Court holding that an appeal from an order granting a motion to dismiss based upon lack of personal jurisdiction—issued after a hearing—also brings up for review the issue of whether a hearing was necessary to determine the motion … . Since an order directing a hearing to aid in the determination of a motion holds the determination of the motion in abeyance, the subsequent order made after the hearing is “the proper order to appeal from” … . OneWest Bank FSB v Perla, 2021 NY Slip Op 07550, Second Dept 12-29-21

 

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THE JURY’S FINDING THAT THE VICTIM SUFFERED “SERIOUS INJURY” WITHIN THE MEANING OF THE ASSAULT SECOND STATUTE WAS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s assault second conviction, determined the jury’s conclusion that the victim suffered “serious injury” was against the weight of the evidence:

Although the victim testified that he sustained a skull fracture … , the People also introduced expert medical testimony establishing that he did not have a skull fracture. In addition, although the victim testified to ongoing memory issues, there is evidence in the record establishing that he had several other concussions that could also have caused those issues, including one that occurred when he was struck by a metal bat only a few months after this incident. Consequently, we cannot conclude that “the jury was justified in finding . . . defendant guilty beyond a reasonable doubt” … . People v Defio, 2021 NY Slip Op 07400, Fourth Dept 12-23-21

 

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A ZONING BOARD OF APPEALS IS WITHOUT JURISDICTION ABSENT AN APPEAL FROM AN ORDER OR OTHER DETERMINATION BY AN ADMINISTRATIVE OFFICIAL CHARGED WITH ENFORCING THE ZONING CODE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, noted that a Zoning Board of Appeals has no jurisdiction unless there is an appeal from an order or decision or determination made by an administrative official charged with enforcement of zoning ordinances:

Pursuant to the Code of the Town of Webster, absent an “order, requirement, decision or determination by any administrative official of the Town” charged with the enforcement of the Town’s local zoning ordinance, the ZBA is without jurisdiction to hear an appeal … . * * *

…[W]e conclude on this record that there was no determination … affording jurisdiction to the ZBA to hear petitioner’s appeal … . Matter of Webster Citizens for Appropriate Land Use, Inc. v Town of Webster, 2021 NY Slip Op 07370, Fourth Dept 12-23-21

 

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ALTHOUGH THE JUDGE IN THIS BENCH TRIAL DID NOT EXPLICITLY RULE ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL, THE MAJORITY DETERMINED THE DENIAL OF THE MOTION WAS IMPLICIT IN THE VERDICT AND THEREFORE THE LEGAL INSUFFICIENCY ARGUMENT COULD BE CONSIDERED ON APPEAL; THE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, over a dissent, determined the judge in this bench trial implicitly ruled on defendant’s motion for a trial order of dismissal when rendering the verdict. The dissent argued an explicit ruling on the motion was a necessary prerequisite to an appeal:

From the dissent:

… [D]uring the nonjury trial, the court expressly reserved decision on defendant’s motion for a trial order of dismissal. Although the Criminal Procedure Law requires a court to determine a motion on which it has reserved decision (see CPL 290.10 [1]; 320.20 [4]), the court here never again addressed that motion by name on the record. Rather, in rendering its verdict, the court stated merely that, “based upon the credible trial evidence, this [c]ourt finds the defendant guilty of . . . attempted assault in the second degree [because] there was legally sufficient proof that the defendant intended to cause the victim serious physical injury based upon his conduct, and [in] consideration of all the surrounding circumstances.”

In reaching the merits of defendant’s legal sufficiency contention, the majority tacitly concludes that the court implicitly denied defendant’s motion when it rendered its guilty verdict, likely due to the court’s reference to the “legally sufficient proof” supporting its finding of guilt. I respectfully disagree with this approach … . People v Dubois, 2021 NY Slip Op 07364, Third Dept 12-23-21

 

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