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PETITIONER ENTITLED TO A FRYE HEARING TO DETERMINE THE EFFICACY OF AN ‘OTHER SPECIFIED PARAPHILIC DISORDER’ (OSPD) DIAGNOSIS IN THIS DANGEROUS SEX OFFENDER CIVIL CONFINEMENT HEARING (THIRD DEPT).

The Third Department determined petitioner sex offender was entitled to a Frye hearing to determine the efficacy of an “other specified paraphilic disorder” (OSPD) diagnosis:

… OSPD (nonconsent) is the primary diagnosis upon which respondent relied to demonstrate that petitioner suffered from a mental abnormality under Mental Hygiene Law article 10. Citing the lack of specific diagnostic criteria, petitioner contends that this diagnosis is “junk science” that has not gained general acceptance in the scientific community and, therefore, cannot support a finding of mental abnormality. In support of his application for a Frye hearing, petitioner submitted, among other things, Singer’s affidavit, scientific literature in the form of professional articles discussing the controversial nature of PNOS (nonconsent) — the predecessor diagnosis of OSPD (nonconsent) — and questioning its general acceptance in the relevant scientific community, as well as various trial court decisions that, following Frye hearings, have concluded that OSPD (nonconsent) is not a generally accepted diagnosis within the relevant psychiatric and psychological communities. In opposition, respondent tendered an attorney’s affidavit and three trial court decisions — two of which concluded that no Frye hearing was necessary — but no scientific literature or professional affidavits. Although we recognize that OSPD is a defined and recognized diagnosis in the Fifth Edition of the American Psychological Association’s Diagnostic and Statistical Manual of Mental Disorders (hereinafter DSM) and that the Court of Appeals has recognized that PNOS — OSPD’s predecessor diagnosis — is sufficient to support a finding of mental abnormality (see State of New York v Shannon S., 20 NY3d 99, 107 [2012], cert denied 568 US 1216 [2013]), we note that Shannon S. did not determine the issue presently before us, i.e., whether the OSPD (nonconsent) diagnosis has received general acceptance in the psychiatric and psychological communities … . * * *

… [G]iven the controversial nature of the OSPD (nonconsent) diagnosis, on the record before us, we conclude that Supreme Court’s denial of petitioner’s application for a Frye hearing was improper. Accordingly, we remit this matter to Supreme Court to conduct a Frye hearing, addressing the question of whether the diagnosis of OSPD (nonconsent) has achieved general acceptance in the psychiatric and psychological communities … . Matter of Miguel II. v State of New York, 2018 NY Slip Op 07210, Third Dept 10-25-18

MENTAL HYGIENE LAW (SEX OFFENDERS, CIVIL CONFINEMENT, PETITIONER ENTITLED TO A FRYE HEARING TO DETERMINE THE EFFICACY OF AN ‘OTHER SPECIFIED PARAPHILIC DISORDER’ (OSPD) DIAGNOSIS IN THIS DANGEROUS SEX OFFENDER CIVIL CONFINEMENT HEARING (THIRD DEPT))/CRIMINAL LAW (MENTAL HYGIENE LAW, SEX OFFENDERS, PETITIONER ENTITLED TO A FRYE HEARING TO DETERMINE THE EFFICACY OF AN ‘OTHER SPECIFIED PARAPHILIC DISORDER’ (OSPD) DIAGNOSIS IN THIS DANGEROUS SEX OFFENDER CIVIL CONFINEMENT HEARING (THIRD DEPT))/EVIDENCE (MENTAL HYGIENE LAW, SEX OFFENDERS, PETITIONER ENTITLED TO A FRYE HEARING TO DETERMINE THE EFFICACY OF AN ‘OTHER SPECIFIED PARAPHILIC DISORDER’ (OSPD) DIAGNOSIS IN THIS DANGEROUS SEX OFFENDER CIVIL CONFINEMENT HEARING (THIRD DEPT))/FRYE HEARING (MENTAL HYGIENE LAW, SEX OFFENDERS, PETITIONER ENTITLED TO A FRYE HEARING TO DETERMINE THE EFFICACY OF AN ‘OTHER SPECIFIED PARAPHILIC DISORDER’ (OSPD) DIAGNOSIS IN THIS DANGEROUS SEX OFFENDER CIVIL CONFINEMENT HEARING (THIRD DEPT))

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WARRANTLESS ENTRY INTO DEFENDANT’S APARTMENT WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction which stemmed from a violation of an order of protection, determined that the emergency exception to the warrant requirement did not apply and her motion to suppress should have been granted. The order of protection directed defendant to stay away from Thomas Collins. The police officer, Carmichael, after entering defendant’s apartment without permission, found Collins hiding there:

We conclude that Carmichael’s testimony established that there was not an objectively reasonable basis for him to believe that there was an ongoing emergency in defendant’s apartment that required immediate assistance to protect life or property. Carmichael was aware that defendant was no longer incarcerated. There was no evidence that defendant’s apartment had been forcibly entered, nor was there any other indication of an ongoing crime or emergency. The low, muffled sound that he heard and the faint light that was seen through the window were consistent with an occupant watching television, a reasonable activity at that hour of night. Moreover, Carmichael’s testimony further established that the police may have been motivated to search defendant’s apartment by the possibility of locating Collins there and arresting him. Carmichael confirmed that he was aware that there was an outstanding warrant for Collins’ arrest. The police had been advised that Collins had been seen in the vicinity of defendant’s apartment during the evening in question, and they considered the possibility that he was at her apartment in violation of the order of protection. After Carmichael handcuffed defendant, he reported by radio to the other officers on the scene that he had detained the “female subject,” and, when he located Collins, he stated that he had detained “that other subject.”

Further, even had Carmichael’s initial entry been lawful, his subsequent search of defendant’s apartment was not. A protective sweep is justified only when the police “have articulable facts upon which to believe that there is a person present who may pose a danger to those on the scene” … . Upon entry, Carmichael found that the apartment was occupied by defendant — known by him to be the tenant entitled to occupy the apartment — who told him that she was watching television, denied that anyone else was present and made no request for assistance. Thus, the facts known to Carmichael did not reasonably support the belief that there was any danger to himself or to defendant. People v Sears, 2018 NY Slip Op 07197, Third Dept 10-25-18

CRIMINAL LAW (WARRANTLESS ENTRY INTO DEFENDANT’S APARTMENT WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, WARRANTLESS ENTRY INTO DEFENDANT’S APARTMENT WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT))/EMERGENCY EXCEPTION TO WARRANT REQUIREMENT (WARRANTLESS ENTRY INTO DEFENDANT’S APARTMENT WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT))/SUPPRESS, MOTION TO, (WARRANTLESS ENTRY INTO DEFENDANT’S APARTMENT WAS NOT JUSTIFIED BY THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (THIRD DEPT))

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PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE IN THIS NONJURY ASSAULT TRIAL, EXERCISING ITS FACTUAL REVIEW POWER THE APPELLATE COURT REVERSED DEFENDANT’S CONVICTION (THIRD DEPT).

The Third Department, reversing defendant’s assault and criminal possession of a weapon convictions, determined that the People did not disprove the justification defense in this nonjury trial:

At sentencing, County Court stated that it rejected defendant’s justification defense because it found that defense to be inconsistent with the multiple wounds on the victim’s face, neck and body. However, “independently assess[ing] all of the proof” and considering the correctness of the court’s factual determinations in the role of a second factfinder, as we must, we do not agree that these injuries are inconsistent with defendant’s assertion that he had to swing the knife repeatedly to defend himself, as the victim continued to attack and punch him … . More significantly, the severity of the victim’s injuries does not provide the missing proof that defendant could have retreated with complete safety before he used deadly physical force or even during the knife fight, when he and the victim both testified that the victim continued to throw punches. It was the People’s burden to prove “to the same degree as any element of the crime charged” that defendant’s actions were not justified … . Exercising our factual review power and viewing the evidence in a neutral light, we find that the People did not do so … . People v Hernandez, 2018 NY Slip Op 07196, Second Dept 10-24-18

CRIMINAL LAW (PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE IN THIS NONJURY ASSAULT TRIAL, EXERCISING ITS FACTUAL REVIEW POWER THE APPELLATE COURT REVERSED DEFENDANT’S CONVICTION (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, JUSTIFICATION, PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE IN THIS NONJURY ASSAULT TRIAL, EXERCISING ITS FACTUAL REVIEW POWER THE APPELLATE COURT REVERSED DEFENDANT’S CONVICTION (THIRD DEPT))/JUSTIFICATION (CRIMINAL LAW, EOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE IN THIS NONJURY ASSAULT TRIAL, EXERCISING ITS FACTUAL REVIEW POWER THE APPELLATE COURT REVERSED DEFENDANT’S CONVICTION (THIRD DEPT))/APPEALS (CRIMINAL LAW, NONJURY TRIAL, PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE IN THIS NONJURY ASSAULT TRIAL, EXERCISING ITS FACTUAL REVIEW POWER THE APPELLATE COURT REVERSED DEFENDANT’S CONVICTION (THIRD DEPT))

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IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction for aggravated unlicensed operation of a motor vehicle, determined that the testimony of a supervisor from the NYS Department of Motor Vehicles (DMV), alleging that notice of the revocation of defendant’s license was mailed to defendant, violated defendant’s right to confront the witnesses against him because the testimony was not based upon first hand knowledge:

To establish that the defendant operated a motor vehicle while knowing that his license was suspended or revoked, the People presented the testimony of a supervisor of the New York State Department of Motor Vehicles (hereinafter the DMV), who testified about the DMV’s process of mailing notices of revocation and/or suspension. The DMV supervisor testified that an order of suspension was mailed to the defendant in 1999, and she read into the record an affidavit, sworn to in 2012, which detailed the procedures related to mailing these notices and also stated, “upon information and belief,” that the notice was in fact mailed to the defendant in 1999. However, the DMV supervisor herself admittedly had no personal knowledge of the mailing to the defendant, and the People did not produce the original 1999 affidavit of mailing.

The Supreme Court should not have permitted this testimony, as it violated the defendant’s right of confrontation (see CPLR 4518[a]; CPL 60.10;… ) The defendant was never given the opportunity to cross-examine a DMV employee who was directly involved in sending out suspension notices and who had personal knowledge of defendant’s driving record. The DMV supervisor’s testimony was improperly allowed to establish an essential element of the crime. The court, in permitting this testimony, failed to ensure that the defendant’s Sixth Amendment right of confrontation was protected … . People v Stokeling, 2018 NY Slip Op 07158, Second Dept 10-24-18

CRIMINAL LAW (IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT)/HEARSAY (CRIMINAL LAW, IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))/HEARSAY (CRIMINAL LAW, IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))/BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (CRIMINAL LAW, IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))/VEHICLE AND TRAFFIC LAW  (IN THIS AGGRAVATED UNLICENSED OPERATION CASE, TESTIMONY THAT NOTICE OF THE REVOCATION OF DEFENDANT’S DRIVER’S LICENSE WAS MAILED TO HIM VIOLATED DEFENDANT’S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BECAUSE THE TESTIMONY WAS NOT BASED UPON FIRST-HAND KNOWLEDGE (SECOND DEPT))

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DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s convictions for two separate robberies which were tried together, determined that one of the lineup identification procedures violated defendant’s right to counsel. The detective who conducted the lineup was aware defendant had an attorney but did not notify the attorney of the impending lineup:

The detective who conducted the lineup violated the defendant’s right to counsel by failing to notify counsel of the lineup and afford counsel a reasonable opportunity to attend. As a general rule, a defendant does not have the right to counsel at a preaccusatory, investigatory lineup … . There are two exceptions. The first is when a defendant is actually represented by an attorney in the matter under investigation. That occurs when the defendant is, in fact, represented in the matter, and the police know, or can be charged with knowledge of that representation … . The second is when a defendant who is already in custody and represented by an attorney in an unrelated case invokes the right by requesting his or her attorney. In either case, “[o]nce the right to counsel has been triggered, the police may not proceed with the lineup without at least apprising the defendant’s lawyer of the situation and affording the lawyer a reasonable opportunity to appear. A specific request that the lineup not proceed until counsel is so notified need not be made” … .

… [T]he paramount consideration is whether there is a reasonable possibility that the jury’s decision to convict on the tainted counts influenced its verdict of guilt on the remaining counts in a meaningful way … . Here, we cannot conclude from the evidence presented that there was no such reasonable possibility. People v Johnson, 2018 NY Slip Op 07147, Second Dept 10-24-18

CRIMINAL LAW (LINEUPS, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, LINEUPS, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, LINEUPS, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))/RIGHT TO COUNSEL (LINEUPS, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))/LINEUPS (RIGHT TO COUNSEL, DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT))

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PLAINTIFF DID NOT PROVIDE SUFFICIENT PROOF IT HAD NOTIFIED DEFENDANT OF THE FORECLOSURE ACTION PURSUANT TO RPAPL 1304, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment should have been granted. Plaintiff did not provide sufficient proof demonstrating it provided the notice required by RPAPL 1304:

… [T]he defendant established his prima facie entitlement to judgment as a matter of law by submitting his own affidavit attesting that he had not received any notice pursuant to RPAPL 1304 … . In opposition, the plaintiff submitted only a copy of the required notice, but failed to submit any evidence that the notice was mailed in the manner required by the statute. Specifically, the plaintiff did not submit “an affidavit of service, . . . proof of mailing by the post office, evincing that it properly served the defendant pursuant to RPAPL 1304 [by registered or certified mail and also by first-class mail to his last known address]” … , or “proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure” … . Thus, the plaintiff failed to demonstrate that it strictly complied with the requirements of RPAPL 1304, notwithstanding the label on the notice stating “Certified Article Number” and “Senders Record” and listing a 20-digit number on the top of the letter … . Thus, since the plaintiff did not raise a triable issue of fact in opposition to the defendant’s prima facie showing that the plaintiff failed to satisfy the condition precedent of proper service of RPAPL 1304 notice upon him … . Deutsche Bank Natl. Trust Co. v Heitner, 2018 NY Slip Op 07090, Second Dept 10-24-18

FORECLOSURE (PLAINTIFF DID NOT PROVIDE SUFFICIENT PROOF IT HAD NOTIFIED DEFENDANT OF THE FORECLOSURE ACTION PURSUANT TO RPAPL 1304, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, PLAINTIFF DID NOT PROVIDE SUFFICIENT PROOF IT HAD NOTIFIED DEFENDANT OF THE FORECLOSURE ACTION PURSUANT TO RPAPL 1304, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (FORECLOSURE, NOTICE, PLAINTIFF DID NOT PROVIDE SUFFICIENT PROOF IT HAD NOTIFIED DEFENDANT OF THE FORECLOSURE ACTION PURSUANT TO RPAPL 1304, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the plaintiff did not submit admissible proof that defendant was in default. The evidence did not meet the business records exception to the hearsay rule. The court also held that a nonparty’s motion to intervene was properly denied as untimely and the Judiciary Law 489 affirmative defense was properly struck. Judiciary Law 489 prohibits buying another’s debt for the purpose of bringing a court action, but debts exceeding $500,000 are exempt. The debts purchased here exceeded $500,000:

The determination to deny Fulton Holdings’ motion for leave to intervene in the action was a provident exercise of discretion. “Intervention under CPLR 1012 and 1013 requires a timely motion” … . Here, Fulton Holdings’ motion was not timely, as it was not made until approximately 14 months after Fulton Holdings had notice that the foreclosure action was pending … . …

Here, the plaintiff failed to submit evidence of default in admissible form. To evince the mortgagor’s default, the plaintiff submitted the affidavits of Igor Fleyshmakher, the plaintiff’s managing member, and Frank Quintana, the president of 179 Court Street Holding Corp. (hereinafter 179 Court), a prior holder of the mortgage. Fleyshmakher and Quintana both attested to the date of the last payment allegedly received on the mortgage. However, the plaintiff failed to demonstrate the admissibility, under the business records exception to the hearsay rule, of any records relied upon by Fleyshmakher and Quintana (see CPLR 4518[a]…). Neither Fleyshmakher nor Quintana laid a foundation for, or even identified, the records upon which they relied. Moreover, neither the plaintiff nor 179 Court acquired its interest in the mortgage until after the alleged default date. Thus, neither Fleyshmakher nor Quintana could have established the loan’s payment history up to and including the date of default by relying on their respective employers’ records. Neither Fleyshmakher nor Quintana asserted that they consulted or relied on the records of 179 Court’s predecessor-in-interest. Under these circumstances, the plaintiff failed to establish, prima facie, the mortgagor’s default … . Fulton Holding Group, LLC v Lindoff, 2018 NY Slip Op 07096, Second Dept 10-24-18

FORECLOSURE (PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/EVIDENCE (FORECLOSURE, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/HEARSAY (BUSINESS RECORDS EXCEPTION, FORECLOSURE, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (FORECLOSURE, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/CPLR 4518 (FORECLOSURE, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/CPLR 1012, 1013 (FORECLOSURE, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/DEBTOR-CREDITOR (JUDICIARY LAW 489, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))/JUDICIARY 489 FORECLOSURE, PLAINTIFF DID NOT SUBMIT ADMISSIBLE PROOF OF DEFAULT, MOTION TO INTERVENE WAS UNTIMELY, JUDICIARY LAW 489 WAS NOT VIOLATED (SECOND DEPT))

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THE INSURANCE POLICY WAS PROPERLY AUTHENTICATED AND IT EXCLUDED COVERAGE FOR THE PROPERTY DAMAGE, MOTION TO DISMISS THE COMPLAINT SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the insurance  policy was properly authenticated and the policy unambiguously excluded coverage for the property damage at issue and dismissed the complaint:

The insurance policy submitted by defendant in support of its motion was sufficiently authenticated by the sworn affidavit of defendant’s president, who stated that, based upon his review of defendant’s files, defendant’s proffer was a “full and complete copy” of the insurance policy issued to plaintiffs … .

… [W]e find that the terms of the policy conclusively refute plaintiffs’ claim that defendant is obligated to cover the structural damage caused to their barn by Calhoun’s operation of their tractor and hay baler. By its unambiguous terms, the policy insured plaintiffs only against direct physical loss caused to the barn by 11 specifically delineated perils. Accepting the allegations in plaintiffs’ complaint as true and affording them the benefit of every possible favorable inference… , the alleged cause of the structural damage here — the tractor and hay baler “br[ea]k[ing] through the barn floor” — does not fall under one of the covered perils. The section of the policy cited by plaintiffs as providing coverage is inapplicable, as that section applies solely to liability insurance coverage arising out of third-party claims made against plaintiffs. Accordingly, as the insurance policy conclusively disposes of plaintiffs’ claim, defendant’s motion to dismiss pursuant to CPLR 3211 (a) (1) should have been granted and the complaint dismissed … . Calhoun v Midrox Ins. Co., 2018 NY Slip Op 07024, Third Dept 10-18-18

INSURANCE LAW (THE INSURANCE POLICY WAS PROPERLY AUTHENTICATED AND IT EXCLUDED COVERAGE FOR THE PROPERTY DAMAGE, MOTION TO DISMISS THE COMPLAINT SHOULD HAVE BEEN GRANTED (THIRD DEPT))/CIVIL PROCEDURE (THE INSURANCE POLICY WAS PROPERLY AUTHENTICATED AND IT EXCLUDED COVERAGE FOR THE PROPERTY DAMAGE, MOTION TO DISMISS THE COMPLAINT SHOULD HAVE BEEN GRANTED (THIRD DEPT))/CPLR 3211 (THE INSURANCE POLICY WAS PROPERLY AUTHENTICATED AND IT EXCLUDED COVERAGE FOR THE PROPERTY DAMAGE, MOTION TO DISMISS THE COMPLAINT SHOULD HAVE BEEN GRANTED (THIRD DEPT))/EVIDENCE (THE INSURANCE POLICY WAS PROPERLY AUTHENTICATED AND IT EXCLUDED COVERAGE FOR THE PROPERTY DAMAGE, MOTION TO DISMISS THE COMPLAINT SHOULD HAVE BEEN GRANTED (THIRD DEPT))

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COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined that the college’s determination that petitioner-student violated  the code of student conduct was supported by substantial evidence:

“We emphasize that [t]he substantial evidence standard is a minimal standard” … , and “demands only that a given inference is reasonable and plausible, not necessarily the most probable”… . Stated differently, “[r]ationality is what is reviewed under the substantial evidence rule” …; substantial evidence is “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” . Where substantial evidence exists, the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently … .

“[O]ften there is substantial evidence on both sides of an issue disputed before an administrative agency” … . Where substantial evidence exists to support a decision being reviewed by the courts, the determination must be sustained, “irrespective of whether a similar quantum of evidence is available to support other varying conclusions”… . Moreover, hearsay is admissible as competent evidence in an administrative proceeding, and if sufficiently relevant and probative may constitute substantial evidence even if contradicted by live testimony on credibility grounds … . …

Contrary to petitioner’s argument, the hearsay evidence proffered at the administrative hearing, along with petitioner’s testimony, provides substantial evidence in support of the finding that he violated respondents’ code of conduct. The hearing board also could have reasonably interpreted some of petitioner’s conceded behavior as consciousness of guilt and concluded that his version of the events was not credible. Ultimately, it was the province of the hearing board to resolve any conflicts in the evidence and make credibility determinations. The Appellate Division improperly engaged in a re-weighing of the evidence when it substituted its own factual findings for those of respondents … . Matter of Haug v State Univ. of N.Y. at Potsdam, 2018 NY Slip Op 06964, CtApp 10-18-18

EDUCATION-SCHOOL LAW (COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP))/EVIDENCE (EDUCATION-SCHOOL LAW, COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP))/ADMINISTRATIVE LAW  (EDUCATION-SCHOOL LAW, COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP))/COLLEGES AND UNIVERSITIES (DISCIPLINARY PROCEEDINGS, COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP))/SUBSTANTIAL EVIDENCE (ADMINISTRATIVE LAW, COLLEGE’S DETERMINATION STUDENT VIOLATED THE CODE OF STUDENT CONDUCT SUPPORTED BY SUBSTANTIAL EVIDENCE, EVIDENTIARY STANDARD DEFINED (CT APP))

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MOTHER’S PETITION FOR CUSTODY AND PERMISSION TO RELOCATE TO TEXAS SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s request to relocate should have been granted:

We find that Family Court’s determination denying the mother’s relocation request and granting the parties joint legal custody is not supported by a sound and substantial basis in the record. If not permitted to relocate, the mother’s only potential resource — besides public assistance — would be the father. Given the father’s significant criminal history — which includes domestic violence against the mother — this is not a situation we can countenance. Further, there is nothing in the record to suggest that the father is willing or able to assist the mother or the child in any way. The undisputed evidence was that the father’s financial support and parenting time was limited, sporadic and offered at his whim. Indisputably, the mother has been the child’s primary caretaker, the father provided almost no financial support and his very limited relationship with the child existed only through the mother’s efforts. Moreover, given the father’s history and evidence of domestic violence, we do not believe that joint legal custody is in the child’s best interests … . We note that, although not dispositive, the trial attorney for the child did not oppose the mother’s petition or her relocation request … .

We are mindful that our holding results in the child residing a significant distance from the father. The record indicates that the mother has consistently made the effort to remain in contact with the father, to send pictures and to initiate telephone calls and visits. We discern no basis upon which to conclude that she will not continue to do so. As the child grows, such contact will become more important and have a greater impact on the father’s ability to establish and maintain a relationship with the child. Accordingly, we remit this matter to Family Court to establish an appropriate schedule for telephone calls and parenting time with the father. Matter of Fisher v Perez, 2018 NY Slip Op 07014, Third Dept 10-18-18

FAMILY LAW (MOTHER’S PETITION FOR CUSTODY AND PERMISSION TO RELOCATE TO TEXAS SHOULD HAVE BEEN GRANTED (THIRD DEPT))/CUSTODY (FAMILY LAW, MOTHER’S PETITION FOR CUSTODY AND PERMISSION TO RELOCATE TO TEXAS SHOULD HAVE BEEN GRANTED (THIRD DEPT))/RELOCATE (FAMILY LAW, MOTHER’S PETITION FOR CUSTODY AND PERMISSION TO RELOCATE TO TEXAS SHOULD HAVE BEEN GRANTED (THIRD DEPT))/EVIDENCE (FAMILY LAW, CUSTODY, RELOCATE, (MOTHER’S PETITION FOR CUSTODY AND PERMISSION TO RELOCATE TO TEXAS SHOULD HAVE BEEN GRANTED (THIRD DEPT))

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