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FATHER’S PETITION FOR A MODIFICATION OF CUSTODY, REQUESTING AN AWARD OF SOLE CUSTODY, SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, over a dissent, in a decision too comprehensive to fairly summarize here, determined father’s petition for a modification of custody (awarding him sole custody) should not have been granted:

… Family Court’s determination that there was a change of circumstances since the issuance of the prior custody order such that an award of sole legal and physical custody to the father was required to protect the best interests of the child lacks a sound and substantial basis in the record … . * * *

… Family Court also placed undue weight on an alleged suicide attempt by the mother in 2013, which predated the award of sole legal and residential custody to the mother in 2018 by several years, and thus, could not constitute a “change of circumstances since the [prior] custody determination” … . …

… Family Court failed to afford sufficient weight to conduct by the father which militated against awarding him sole custody. In particular, the mother testified that the father did not allow her to speak to the child by phone, Facetime, or other means while the child was at the father’s home. …

… Family Court failed to afford sufficient weight to conduct by the father which militated against awarding him sole custody. In particular, the mother testified that the father did not allow her to speak to the child by phone, Facetime, or other means while the child was at the father’s home. Matter of Paige v Paige, 2022 NY Slip Op 00866, Second Dept 2-9-22

 

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FATHER ALLEGED CHANGES IN HIS WORK SCHEDULE ALLOWED MORE TIME FOR PARENTAL ACCESS WITH THE CHILD; A HEARING SHOULD HAVE BEEN ORDERED ON FATHER’S MODIFICATION PETITION (SECOND DEPT).

The Second Department, reversing Family Court, determined father had submitted sufficient evidence to warrant a hearing on his petition to modify the custody or parental access arrangement:

… [F]ather stated that his probationary employment period had since ended, and his schedule was more consistent, and he was off from work on Saturdays and Sundays. Given this change, the father sought expanded parental access with the child. …

Entitlement to a hearing on a modification petition … is not automatic; the petitioning parent must make a threshold evidentiary showing of a change in circumstances demonstrating a need for modification in order to insure the child’s best interests … . Requiring parents to make this threshold showing before a hearing is ordered serves an important purpose because … litigation of custody and visitation issues is emotionally fraught and “can create trauma and uncertainty for the child, as well as trauma, uncertainty, and expense for the parents” … .

… Family Court improperly dismissed the father’s petition. … [T]he father’s assertions, which were supported by the requisite threshold evidentiary showing, warranted a hearing to resolve whether the existing parental access arrangement continued to serve the child’s best interests … . Matter of LaPera v Restivo, 2022 NY Slip Op 00863, Second Dept 2-9-22

 

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THE AFFIDAVITS DID NOT PROVE THE RPAPL 1304 WAS ACTUALLY MAILED TO DEFENDANTS; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the proof of compliance with the notice requirements of RPAPL 1304 was insufficient. Therefore plaintiff in this foreclosure action was not entitled to summary judgment:

Since HSBC failed to provide evidence of the actual mailing, or evidence of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, it failed to establish, prima facie, its strict compliance with RPAPL 1304 … . MTGLQ Invs., L.P. v Cutaj, 2022 NY Slip Op 00858, Second Dept 2-9-22

Similar issues and result in U.S. Bank N.A. v Adams, 2022 NY Slip Op 00896, Second Dept 2-9-22

Similar issues and result in Wells Fargo Bank, N.A. v Davidson, 2022 NY Slip Op 00901, Second Dept 2-9-22 which also held the bank’s failure to comply with the “one envelope” rule for the RPAPL 1304 notice can be raised for the first time on appeal.

 

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THE RPAPL 1304 NOTICE DID NOT INLUDE A LIST OF FIVE HOUSING COUNSELING AGENCIES SERVING THE COUNTY WHERE THE PROPERTY IS LOCATED; THE BANK’S SUMMARY JUDGMENT MOTION IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate compliance with the RPAPL 1304 required that the notice of foreclosure include a list of five housing counseling agencies serving the county were the property is located:

… [T]he plaintiff failed to establish, prima facie, its strict compliance with RPAPL 1304, as it failed to demonstrate that the 90-day notices it sent to the defendants contained the requisite list of five housing counseling agencies serving the county in which the subject property is located … . In support of its motion, the plaintiff submitted the notices pursuant to RPAPL 1304, annexed to which was a list of five agencies. Four of the agencies were located in Queens, and one of the agencies, Hispanic Brotherhood of Rockville Centre, Inc., was located in Nassau County. Thus, the plaintiff failed to establish, prima facie, that all five of the agencies served Queens County. U.S. Bank N.A. v Gordon, 2022 NY Slip Op 00898, Second Dept 2-9-22

Similar issues and result in Wells Fargo Bank, N.A. v McMahon, 2022 NY Slip Op 00903, Second Dept 2-9-22

 

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PLAINTIFF ALLEGEDLY TRIPPED OVER AN ELECTRICAL BOX AS SHE STEPPED OFF A TREADMILL; DEFENDANTS RAISED QUESTIONS OF FACT ABOUT WHETHER THE CONDITION WAS OPEN AND OBVIOUS AND ABOUT THE CREDIBILITY OF THE PLAINTIFF AND HER WITNESSES, INCLUDING HER EXPERT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this premises liability case should not have been granted. Plaintiff alleged she tripped over an electrical box when she stepped off a treadmill at defendant fitness center. Defendants raised questions of fact about whether the condition was open and obvious and about the credibility of plaintiff and her witnesses, including the expert:

… [T]he defendants cited to the evidence submitted in support of their motion for summary judgment dismissing the complaint, which included photographs allegedly depicting the subject electrical box, and testimony relating to the configuration and installation of the treadmills on the floor of the fitness center. The defendants’ submissions tended to show that the electrical box was open and obvious, and not inherently dangerous … . The defendants’ opposition also raised triable issues of fact relating to “[the] plaintiff’s credibility” … , and the credibility of her other witnesses, including her expert witness … . Sebagh v Capital Fitness, Inc., 2022 NY Slip Op 00892, Second Dept 2-9-22

 

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THE BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE STANDING TO BRING THE ACTION AND DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE MORTGAGE AND RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank in this foreclosure action did not prove standing to bring the action and compliance with the notice requirements of the mortgage and RPAPL 1304:

Although the plaintiff attached to the complaint copies of the note and an undated purported allonge endorsed in blank, the plaintiff did not demonstrate that the purported allonge, which was on a piece of paper completely separate from the note, was “so firmly affixed thereto as to become a part thereof,” as required by UCC 3-202(2) … . …

… [T}he plaintiff failed to demonstrate, prima facie, that a notice of default in accordance with sections 15 and 22 of the mortgage was properly transmitted to the defendant prior to the commencement of this action … . …

… [T]he plaintiff failed to establish, prima facie, its strict compliance with RPAPL 1304. The plaintiff failed to provide proof of the actual mailing of the 90-day notice required by RPAPL 1304, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed … . Further, although Victoria Wolff, an assistant secretary for the plaintiff, stated in an affidavit that the notices required under RPAPL 1304 were mailed, she did not aver that she had mailed the notices herself or otherwise claim to have personal knowledge of the mailing … . Raymond James Bank, NA v Guzzetti, 2022 NY Slip Op 00888, Second Dept 2-9-22

 

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THE PRESENCE OF DEFENDANT’S VEHICLE IN A HIGH CRIME AREA AND FURTIVE MOVEMENTS INSIDE THE VEHICLE DID NOT JUSTIFY THE SEIZURE OF DEFENDANT’S VEHICLE BY BLOCKING IT WITH THE POLICE CAR (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the police did not have the requisite “reasonable suspicion” to justify the seizure of defendant’s vehicle by blocking it with the police car:

… [T]he police lacked reasonable suspicion to justify the seizure of the vehicle, and therefore County Court erred in refusing to suppress both the physical property seized from defendant and the vehicle, as well as inculpatory statements made by defendant during booking following his arrest. … [W]e conclude that the police officers effectively seized defendant’s vehicle when they parked their patrol vehicle in such a manner that, for all practical purposes, prevented defendant from driving his vehicle away … . Furthermore, we conclude that the People did not have “reasonable suspicion that defendant had committed, was committing, or was about to commit a crime” to justify their seizure of the vehicle inasmuch as the seizure was based only on defendant’s presence in a vehicle parked in a high crime area, and on the police officers’ observation of furtive movements inside the vehicle … . People v Jennings, 2022 NY Slip Op 00755, Fourth Dept 2-4-22

 

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COUNTY COURT COULD NOT CORRECT AN ILLEGAL SENTENCE WITHOUT FORMALLY RESENTENCING THE DEFENDANT (FOURTH DEPT). ​

The Fourth Department, vacating the sentence on one count of the indictment, determined County Court should not have corrected a sentencing mistake without formally resentencing the defendant:

… [T]he sentence originally imposed on the count of criminal possession of a weapon in the third degree was illegal and the court erred in attempting to correct it without formally resentencing defendant at a proceeding at which he was present or securing defendant’s waiver of the right to be present at such a proceeding … . We therefore modify the judgment by vacating the sentence imposed on count two of the indictment, and we remit the matter to County Court for resentencing on that count, at which time defendant must be permitted to appear. People v Abergut, 2022 NY Slip Op 00791, Fourth Dept 2-4-22

 

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THE SEARCH OF DEFEFNDANT’S VEHICLE BY PAROLE OFFICERS WAS NOT COMPLETELY UNRELATED TO AN ILLEGAL FRISK BY A POLICE OFFICER WHICH REVEALED THE CAR KEYS; COCAINE FOUND IN THE VEHICLE SHOULD HAVE BEEN SUPPRESSED; INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department, reversing County Court’s denial of a suppression motion and dismissing the indictment, determined the search of defendant parolee’s vehicle after an illegal frisk revealed the keys was not justified. Parole officers accompanied a police investigator to a health facility where defendant was known to be as part of a police, not a parole, investigation. The illegal frisk occurred when defendant left the health facility and before the parole officers learned defendant had driven there in violation of his parole terms. Therefore the search of defendant’s vehicle could not be justified as a distinct and completely unrelated “parole” investigation:

The testimony further establishes that the parole officers’ suspicion of a parole violation and their investigation thereof arose only after defendant’s parole officer requested that the police investigator hand over the fruit of the unlawful search and seizure, i.e., the keys, and the police investigator left the scene. The parole officers began their investigation—pressing the fob, questioning defendant, waiting for the purported owner of the vehicle to emerge from the building, and viewing surveillance footage—as a direct result of the unlawful seizure of the keys from defendant’s person. Indeed, defendant’s parole officer did not learn of defendant’s possible connection to the vehicle until he pressed the fob, which activated the lights of the vehicle. Inasmuch as the investigation by the parole officers was precipitated by the police investigator’s unlawful seizure of the keys from defendant, the subsequent discovery of the contraband in the vehicle was not “based solely on information obtained prior to and independent of the illegal [search and seizure]” … . Thus, the court’s determination that the parole officers’ investigation was independent of the unlawful seizure of the keys is not supported by the record. People v Smith, 2022 NY Slip Op 00790, Fourth Dept 2-4-22

 

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DEFENSE COUNSEL INEFFECTIVE; IN THIS MURDER CASE IN WHICH THE EXTREME EMOTIONAL DISTURBANCE (EED) DEFENSE WAS RAISED, DEFENDANT’S MILITARY SERVICE RECORDS, SOCIAL SECURITY DISABILITY RECORDS AND PTSD DIAGNOSIS SHOULD HAVE BEEN PRESENTED AND A PSYCHIATRIC EXPERT SHOULD HAVE BEEN CONSULTED; NEW TRIAL ORDERED (FOURTH DEPT). ​

The Fourth Department, reversing County Court and ordering a new trial, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should have been granted. Defendant presented an extreme emotional disturbance (EED) defense in this murder case. But the defense consisted only of his and his girlfriend’s testimony. Defense counsel did not request defendant’s Social Security disability records which showed a post-traumatic-stress-disorder (PTSD) diagnosis related to three tours of duty in Iraq and did not consult an expert about defendant’s PTSD:

Defense counsel testified at the CPL article 440 hearing that, in preparing for trial, she requested and received defendant’s military records, which indicated that defendant had been diagnosed with PTSD, but she did not request or review records relating to defendant’s Social Security disability benefits, even though defendant informed her that he received such benefits. She also accompanied defendant to an interview conducted by the People’s expert, who concluded that defendant was not “suffering from active PTSD symptoms during the shooting,” but she did not seek an independent expert opinion. Rather than introducing expert or medical evidence, defense counsel attempted to establish an EED defense through the testimony of defendant and his girlfriend. Although defense counsel did not clearly recall the details of the case, and her file had been destroyed, she thought that she might have opted not to introduce defendant’s military records at trial because she was uncertain how to lay a foundation for their admissibility.

We conclude on this record that defendant met his burden of establishing that he received less than meaningful representation. People v Jackson, 2022 NY Slip Op 00785, Fourth Dept 2-4-22

 

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