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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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THE INSURER PRESENTED EVIDENCE THE BOARD’S RULING THAT THE INSURER WAS THE RESPONSIBLE CARRIER WAS BASED UPON FRAUDULENT DOCUMENTATIOIN; IT WAS ABUSE OF DISCRETION TO DENY THE INSURER’S APPLICATION FOR REVIEW (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the Board abused its discretion when denying an insurer’s (Everest’s) application for a review of a ruling that the insurer was the responsible carrier. That ruling was plausibly argued to have been based upon fraudulent documentation:

… [T]he proof submitted by Everest in support of its administrative appeal strongly suggests that the certificate of insurance provided to the Board was not authentic, and, based upon the limited record before us, the certificate appears to have been an important, if not the only, factor in the WCLJ’s [Workers’ Compensation Law Judge’s] decision as to Everest. In other words, Everest has brought to the Board’s attention the strong possibility that it has issued a decision based perhaps entirely upon fraudulent documentation. … Under these facts, “[i]t is not an adequate answer to say that this kind of determination is usually discretionary” … , and, in our view, the very purpose of the discretion afforded to the Board is to grant relief in circumstances such as these … . … [W]e find that the Board abused its discretion in denying Everest’s application for review … . Matter of Salinas v Power Servs. Solutions LLC, 2021 NY Slip Op 07321, Third Dept 12-23-21

 

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AN APPELLATE COURT HAS THE POWER TO CONSIDER A REQUEST FOR A DECLARATORY JUDGMENT WHICH WAS NOT BEFORE THE MOTION COURT; THE REGULATION MANDATING CERTAIN VACCINES DOES NOT VIOLATE THE SEPARATION OF POWERS DOCTRINE OR EXCEED THE REGULATORY POWERS OF THE NYS DEPARTMENT OF HEALTH (FOURTH DEPT).

The Fourth Department, in a full-fledged, comprehensive opinion by justice NeMoyer which cannot be fairly summarized here, held the appellate court had the power to determine a request for a declaratory judgment which was not raised in the motion court, and the regulation mandating certain vaccines, 10 NYCRR 66-1.1(1) , does not violate the separation of powers doctrine or exceed the regulatory powers of the NYS Department of Health:

The legislature has determined that vaccines save lives. It has therefore established a mandatory “program of immunization . . . to raise to the highest reasonable level the immunity of the children of the state against communicable diseases” (Public Health Law § 613 [1] [a]). And by promulgating 10 NYCRR 66-1.1 (l), respondents-defendants-appellants (defendants) merely implemented the legislature’s policy in a manner entirely consistent with the legislative design. We therefore hold that 10 NYCRR 66-1.1 (l) is valid, does not violate the separation of powers doctrine, and does not exceed the authority of its promulgator. Matter of Kerri W.S. v Zucker, 2021 NY Slip Op 07349, Fourth Dept 12-23-21

 

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THE REQUIREMENTS FOR AN APPEALABLE ORDER IN A SORA RISK-LEVEL PROCEEDING EXPLAINED (THIRD DEPT).

The Third Department, withholding a decision on the merits of the SORA risk-level determination by County Court until the People enter and serve an appealable order, in a full-fledged opinion by Justice Garry, explained the “appealable order” requirements for SORA proceedings:

Despite the statutory requirement that the court render a written SORA “order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based” (Correction Law § 168-n [3]), the lack of such orders is a recurring problem … . In some cases, as here, the court states during a bench decision that a so-ordered provision will be provided on the transcript but that does not occur … . In others, the court signs a standard form designating the defendant’s risk level classification without “so-ordered” language or specific findings and conclusions … . In each of these situations, this Court generally dismisses the appeal, as we must, because it is not properly before us due to the lack of an appealable order … . This creates a confusing situation in which no proper order exists regarding the defendant’s status under SORA (see Correction Law § 168-n [3]).

… Generally, in any civil case, upon a clerk’s entry of a written order, the prevailing party should serve a copy of the order, together with notice of entry, upon the losing party (see CPLR 2220 [b]; 5513 [a] … ). The losing party, once served with a copy of that entered order and notice of entry, has 30 days to take an appeal as of right (see CPLR 5513 [a]; see also Correction Law § 168-n [3]). Pursuant to SORA, “the district attorney, or his or her designee,” is statutorily required to appear at the SORA hearing on behalf of the state and bears the burden of proving the facts supporting the risk level determination being sought (Correction Law § 168-n [3]). Thus, the People bear the responsibility of ensuring that a written SORA order is entered and that notice of entry, along with a copy of that written order, is served on the defendant. People v Lane, 2021 NY Slip Op 07324, Third Dept 12-23-21

 

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THE JUDGE’S THREAT TO IMPOSE A MUCH HARSHER SENTENCE SHOULD THE DEFENDANT BE CONVICTED AT TRIAL AMOUNTED TO COERCION RENDERING THE PLEA INVOLUNTARY; ALTHOUGH THE ISSUE WAS NOT PRESERVED FOR APPEAL, THE PLEA WAS VACATED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea in the interest of justice, determined the judge’s threat to impose a much harsher sentence if the defendant were to be convicted at trial amounted to coercion:

During a court appearance at which County Court extended a plea offer that called for an aggregate sentence of 15 years to life imprisonment, the court informed defendant that “my policy is if a defendant gets convicted at trial, that means that individual has not accepted responsibility for the conduct that they’ve been convicted of, and . . . [i]n all likelihood the sentence [after trial] would not even be close to the 20 years [to life sought by the People], it would be much more — — many more years and you are looking at a potential [of] 100 years to life.” The court issued a virtually identical admonition at the next appearance, and defendant subsequently accepted the court’s offer of 15 years to life imprisonment.

… [T]he court’s statements during plea negotiations did “not amount to a description of the range of the potential sentences but, rather, they constitute[d] impermissible coercion, ‘rendering the plea involuntary and requiring its vacatur’ ” … . People v Goodwin, 2021 NY Slip Op 07418, Fourth Dept 12-23-21

 

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