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THE PEOPLE FAILED TO TIMELY REDUCE THE BOND OBLIGATION TO A JUDGMENT, THEREFORE THE SURETY’S MOTION TO VACATE THE JUDGMENT FORFEITING THE $100,000 BAIL SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Renwick, determined the surety’s motion to vacate a judgment forfeiting $100,000 bail should have been granted. Although the surety’s (Empire’s) motion was untimely, the People had failed to timely reduce the bond obligation to a judgment. The opinion is too detailed to fairly summarize here:

In this special proceeding brought pursuant to CPLR 5015 by a surety of a defendant in a criminal case, the dispositive question is whether a surety is procedurally precluded from moving to vacate a judgment of bail forfeiture as untimely made. The People argue that the application is precluded because the surety did not move within the one-year time limit applicable to a motion for remission of the forfeiture, which, as set forth in CPL 540.30(2), “must be made within one year after the forfeiture of bail is declared.” We answer the question in the negative because the People must first comply with the statutory mandate of CPL 540.10(2) before they can raise the one-year statute of limitations of CPL 540.30(2). The People did not comply with CPLR 540.10(2), which requires the People to reduce a bond obligation to a judgment within 120 days after the forfeiture is declared by the court. People v Empire Bonding & Ins. Co., 2021 NY Slip Op 03120, First Dept 5-13-21

 

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THE USUAL STRICT CRITERIA FOR VACATING A DEFAULT ORDER ARE RELAXED IN CHILD CUSTODY PROCEEDINGS; MOTHER’S MOTION TO VACATE THE DEFAULT ORDER AWARDING CUSTODY TO FATHER SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s motion to vacate the default order granting custody to father should have been granted. The usual strict criteria for a default order are relaxed in child custody matters:

The determination of whether to relieve a party of an order entered upon his or her default is a matter left to the sound discretion of the Family Court … . “A party seeking to vacate an order entered upon his or her default is required to demonstrate a reasonable excuse for the default and the existence of a potentially meritorious cause of action or defense” … . However, “the law favors resolution on the merits in child custody proceedings,” and thus the “general rule with respect to opening defaults in civil actions is not to be rigorously applied to cases involving child custody” … . Matter of Williams v Worthington, 2021 NY Slip Op 03040, Second Dept 5-12-21

 

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NEW YORK DID NOT HAVE JURISDICTION OVER THE FLORIDA CHILD SUPPORT ORDER, EVEN THOUGH FATHER’S CHILD SUPPORT OBLIGATION HAD TERMINATED BY THE TERMS OF THE ORDER (SECOND DEPT).

The Second Department, reversing Family Court, determined Florida, which issued the child support order and where father resides, continued to have jurisdiction over the child support order, even though the child support obligation had terminated. Therefore the New York child support order was not a “de novo” order. Rather, it was a modification of the Florida order over which New York did not have jurisdiction:

After relocating to New York, the daughter applied for and began receiving public assistance in Nassau County. In July 2019, the Nassau County Department of Social Services (hereinafter DSS) filed the instant petition for support on behalf of the daughter. At a hearing on the petition before a support magistrate, the father moved to dismiss the petition for lack of subject matter jurisdiction pursuant to the Uniform Interstate Family Support Act (hereinafter UIFSA), arguing that Florida retained exclusive jurisdiction over his child support obligation to the daughter, and that under Florida law, his obligation to support the daughter ceased when she turned 18. The Support Magistrate denied the motion, finding that the subject application was not seeking to modify the father’s existing child support obligation in Florida, but, instead, was a de novo application for support. …

“Under the [Full Faith and Credit for Child Support Orders Act] and UIFSA, the state issuing a child support order retains continuing, exclusive jurisdiction over its child support orders so long as an individual contestant continues to reside in the issuing state” ( … cf. Family Ct Act § 580-205). “Accordingly, a state may modify the issuing state’s order of child support only when the issuing state has lost continuing, exclusive jurisdiction” … . …

Since the father still resides in Florida, that state has continuing, exclusive jurisdiction of the child support order, despite the termination of his obligations under that order, and New York does not have subject matter jurisdiction to modify that order … . Matter of Nassau County Dept. of Social Servs. v Ablog, 2021 NY Slip Op 03035, Second Dept 5-12-21

 

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FATHER’S MOTION TO VACATE THE DEFAULT ORDER TERMINATING HIS PARENTAL RIGHTS SHOULD HAVE BEEN GRANTED; FATHER ATTEMPTED TO ATTEND THE HEARING, BUT WAS LATE; FATHER WAS ENTITLED TO COUNSEL BUT NONE HAD BEEN ASSIGNED; AND THERE WAS EVIDENCE HE DID NOT ABANDON THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s motion to vacate the default order terminating his parental rights should have been granted. Father had appeared on the day of the hearing but it had concluded. In addition father was entitled to counsel and there was evidence father had not abandoned the child:

A parent seeking to vacate an order entered upon their default in a termination of parental rights proceeding must establish a reasonable excuse for the default and a potentially meritorious defense to the relief sought in the petition (see CPLR 5015[a][1] …).

Here, the father presented a reasonable excuse for his failure to timely appear at the May 28, 2019 fact-finding hearing. The father did in fact appear in court on the hearing date, but the proceedings had already concluded. This was the father’s first appearance in the proceeding, and there is no indication that the father was notified by the Family Court or counsel of the hearing … . Indeed, the father was unrepresented by counsel at that time, and claims that he was not offered assigned counsel on May 28, 2019. The father had a right to the assistance of counsel in this proceeding, in which he faced a potential termination of his parental rights … . Parental rights may not be curtailed without a meaningful opportunity to be heard, which includes the assistance of counsel … .

… Social Services Law § 384-b(5)(a) provides that “a child is ‘abandoned’ by his parent if such parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency.” Abandonment must be proven by clear and convincing evidence … . Termination of parental rights is authorized by Social Services Law § 384-b(4)(b) when the parent abandoned the child for a period of six months immediately prior to the date of the filing of the petition. Here, the father’s allegations regarding his attempts to contact the agency and visit with the child potentially extend into the relevant six-month period prior to the October 2018 petition. Matter of Jonathan N., Jr. (Jonathan N., Sr.), 2021 NY Slip Op 03034, Second Dept 5-12-21

 

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED; THE ISSUE OF PLAINTIFF’S COMPARATIVE NEGLIGENCE CAN BE ADDRESSED AT THE SUMMARY JUDGMENT STAGE IF RAISED AS AN AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end collision case should have been granted. The court noted that the issue of plaintiff’s comparative negligence can be considered at the summary judgment stage if raised as an affirmative defense:

A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . To be entitled to summary judgment on the issue of a defendant’s liability, a plaintiff does not bear the burden of establishing the absence of his or her own comparative negligence … . Although a plaintiff is not required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff’s comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff seeks summary judgment dismissing an affirmative defense alleging comparative negligence … . Diamond v Comins, 2021 NY Slip Op 03019, Second Dept 5-12-21

 

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DEFENDANTS DID NOT FOLLOW THE PROCEDURES FOR ELECTRONICALLY FILING A VIDEO; THEREFORE THE VIDEO WAS NOT AVAILABLE TO THE COURT AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the video evidence relied upon by defendants’ expert in this elevator-malfunction personal-injury case was not properly electronically filed and therefore was unavailable for review. Because of the unavailability of the evidence defendants’ motion for summary judgment should have been denied:

Defendants failed to establish prima facie that plaintiff was the sole proximate cause of the injuries she sustained when the manual freight elevator that she was operating suddenly stopped moving … . Defendants submitted an affidavit by an expert professional engineer who opined — based on his review of the surveillance footage of plaintiff’s accident and still images purportedly extracted therefrom — that plaintiff failed to fully close the elevator car’s scissor gate, which then opened while the elevator car was in flight, triggering the elevator’s sudden stop. However, they failed to submit the video footage on which their expert relied. Instead, in this electronically filed case, defendants submitted a sheet of paper that read, “Copy of the video to be provided upon the Court’s request.” The New York County e-filing protocol required parties who wished to submit exhibits “that cannot practically be e-filed,” such as videos, to file NYSCEF Form EF 21 and consult with the County Clerk about how best to submit such exhibits … . Because defendants failed to comply with these procedures, the video never became part of the record and thus cannot be reviewed by this Court.

Absent the video, the record evidence does not establish that plaintiff was the sole proximate cause of her injuries. Amezquita v RCPI Landmark Props., LLC, 2021 NY Slip Op 02979, First Dept 5-11-21

 

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THE LANGUAGE IN THE HIPAA FORM, INDICATING PLAINTIFF’S PHYSICIAN MAY BUT IS NOT OBLIGATED TO SPEAK WITH DEFENDANT’S ATTORNEY, WAS PROPERLY APPROVED BY SUPREME COURT IN THIS MEDICAL MALPRACTICE ACTION (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Troutman, over a dissent, determined Supreme Court properly approved language in the HIPAA form informing plaintiff’s physicians that they may but are not obligated to speak with defendant’s attorney:

Defendant offered … to accept revised authorizations that included the following language:

“the purpose of the requested interview with the physician is solely to assist defense counsel at trial. The physician is not obligated to speak with defense counsel prior to trial. The interview is voluntary.”

… [D]efendant moved … to compel plaintiff to provide revised authorizations. The court granted the motion … , directing plaintiff … to provide revised HIPAA-compliant authorizations containing defendant’s proposed language, unemphasized and in the same size font as the rest of the authorization. * * *

Here, the wording that was approved by the court is identical to the wording that previously met with the approval of the Second Department in Porcelli v Northern Westchester Hosp. Ctr. (65 AD3d 176, 178 [2d Dept 2009]), it is similar to the language contained in the [Office of Court Administration’s] standard form, and there is no dispute that it is consistent with the applicable law. Sims v Reyes, 2021 NY Slip Op 02971, Fourth Dept 5-7-21

 

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PLAINTIFF BROUGHT A PERSONAL INJURY ACTION AGAINST A SCHOOL DISTRICT AND AN INDIVIDUAL UNDER THE CHILD VICTIMS ACT ALLEGING SEXUAL ABUSE BY A GUIDANCE COUNSELOR IN THE 1980’S; SUPREME COURT PROPERLY ALLOWED PLAINTIFF’S SUIT TO GO FORWARD UNDER A PSEUDONYM (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Smith, determined Supreme Court properly allowed plaintiff to proceed under a pseudonym in her personal injury action against the school district and an individual defendant pursuant to the Child Victims Act (CBA). Plaintiff alleged she was sexually abused in the 1980’s by a guidance counselor at her high school:

… [P]laintiff alleged that she was employed by the county in which these allegations arose, that her job may be in jeopardy as a result of the allegations, and that she experienced “emotional distress, suicidal thoughts, depression, anxiety, feelings of worthlessness, and many other psychological damages, painful feelings, emotions, nightmares, flashbacks, as well as physical manifestations of these problems” that would recur if her name was publicized.

… [T]he record establishes that plaintiff has disclosed her name to defendants, thereby minimizing any prejudice arising from her use of a pseudonym for the purposes of discovery and investigation, and defendants have not asserted any other prejudice that they will sustain therefrom. An additional factor supporting the court’s determination is that plaintiff did not seek, nor did the court order, that the records in the case be sealed or that public access be denied. Thus, the public’s interest in open court proceedings is preserved … . Although the School and defendant Amherst Central School District are governmental entities, which supports plaintiff’s position, defendant John Koch … is an individual, which favors defendants’ position. Thus, there is no clear advantage to either side with respect to that factor. PB-7 Doe v Amherst Cent. Sch. Dist., 2021 NY Slip Op 02969, Fourth Dept 5-7-21

 

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THE ESTATE WAS A NECESSARY PARTY IN THIS FORECLOSURE ACTION; SUPREME COURT SHOULD HAVE ORDERED THE JOINDER OF THE ESTATE INSTEAD OF DISMISSING THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court properly held that the estate was a necessary party in this foreclosure action, but failing the include the estate did no warrant dismissal of the complaint. Rather, the court should directed that the estate be joined as a party:

Supreme Court did not err in finding that the estate was a necessary defendant. “Pursuant to RPAPL 1311(1), ‘necessary defendants’ in a mortgage foreclosure action include, among others, ‘[e]very person having an estate or interest in possession, or otherwise, in the property as tenant in fee, for life, by the courtesy, or for years, and every person entitled to the reversion, remainder, or inheritance of the real property, or of any interest therein or undivided share thereof, after the determination of a particular estate therein'” … . Particularly where, as here, the plaintiff seeks a deficiency judgment, and alleges a default in payment subsequent to the death of the deceased mortgagor, the estate of the mortgagor is a necessary party to the foreclosure action … . However, dismissal of the complaint was not the proper remedy; rather, the proper remedy was to direct the joinder of the estate as a defendant (see CPLR 1001[b] …). BAC Home Loans Servicing, L.P. v Williams, 2021 NY Slip Op 02780, Second Dept 5-5-21

 

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FAMILY COURT SHOULD NOT HAVE FOUND NEW YORK DID NOT HAVE JURISDICTION OVER THIS CUSTODY DISPUTE WITHOUT HOLDING A HEARING PURSUANT TO THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT TO DETERMINE WHETHER NEW YORK OR YEMEN WAS THE CHILDREN’S HOME STATE (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should not have found New York did not have jurisdiction over this custody dispute without holding a hearing pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The issue is whether New York or Yemen was the children’s home state:

Pursuant to Domestic Relations Law § 70, “[w]here a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, may award . . . custody of such child to either parent.” Here, since the children reside outside of this State, reference must necessarily be made to the Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law art 5-A; hereinafter UCCJEA), which provides, inter alia, that “a court of this state has jurisdiction to make an initial child custody determination only if: (a) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state” (Domestic Relations Law § 76[1][a] …). The UCCJEA defines “home state” as “the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75-a[7]).

Here, the Family Court was required to hold a hearing as to the issue of whether New York or Yemen was the children’s home state, as there are disputed issues of fact regarding the circumstances under which the parties moved with the children from New York to Yemen … . Matter of Kassim v Al-Maliki, 2021 NY Slip Op 02800, Second Dept 5-5-21

 

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