You are here: / Evidence
, ,

THE TRIAL JUDGE RESERVED DECISION ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL ON THE RESISTING ARREST CHARGE AND DID NOT RULE ON IT AFTER CONVICTION, ON APPEAL THE FAILURE TO RULE CANNOT BE CONSIDERED A DENIAL, MATTER REMITTED FOR A RULING (FOURTH DEPT).

The Fourth Department noted that the trial judge reserved decision on defendant’s motion for a trial order of dismissal on the resisting arrest charge. Because the judge never ruled on the motion, the matter was remitted for a ruling:

Defendant also challenges the sufficiency of the evidence with respect to the conviction of resisting arrest. We note that Supreme Court denied defendant’s motion for a trial order of dismissal with respect to the charges of burglary in the third degree and petit larceny but reserved decision with respect to the resisting arrest charge. The matter was submitted to the jury, which returned a verdict convicting defendant of all charges. The court never ruled on the remainder of the motion. Thus, we do not address defendant’s contention with respect to the resisting arrest charge because, “in accordance with People v Concepcion (17 NY3d 192, 197-198 [2011]) and People v LaFontaine (92 NY2d 470, 474 [1998], rearg denied 93 NY2d 849 [1999]), we cannot deem the court’s failure to rule on [that part of] the . . . motion as a denial thereof’ ” … . We therefore hold the case in appeal No. 1, reserve decision, and remit the matter to Supreme Court for a ruling on the remainder of the motion. People v Hymes, 2018 NY Slip Op 02942, Fourth Dept 4-27-18

​CRIMINAL LAW (TRIAL ORDER OF DISMISSAL, THE TRIAL JUDGE RESERVED DECISION ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL ON THE RESISTING ARREST CHARGE AND DID NOT RULE ON IT AFTER CONVICTION, ON APPEAL THE FAILURE TO RULE CANNOT BE CONSIDERED A DENIAL, MATTER REMITTED FOR A RULING (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, TRIAL ORDER OF DISMISSAL, THE TRIAL JUDGE RESERVED DECISION ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL ON THE RESISTING ARREST CHARGE AND DID NOT RULE ON IT AFTER CONVICTION, ON APPEAL THE FAILURE TO RULE CANNOT BE CONSIDERED A DENIAL, MATTER REMITTED FOR A RULING (FOURTH DEPT))/APPEALS (CRIMINAL LAW, TRIAL ORDER OF DISMISSAL, THE TRIAL JUDGE RESERVED DECISION ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL ON THE RESISTING ARREST CHARGE AND DID NOT RULE ON IT AFTER CONVICTION, ON APPEAL THE FAILURE TO RULE CANNOT BE CONSIDERED A DENIAL, MATTER REMITTED FOR A RULING (FOURTH DEPT))/TRIAL ORDER OF DISMISSAL (CRIMINAL LAW, THE TRIAL JUDGE RESERVED DECISION ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL ON THE RESISTING ARREST CHARGE AND DID NOT RULE ON IT AFTER CONVICTION, ON APPEAL THE FAILURE TO RULE CANNOT BE CONSIDERED A DENIAL, MATTER REMITTED FOR A RULING (FOURTH DEPT))

,

IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT). ​

The Fourth Department determined defendant motion to vacate his conviction should not have been denied without a hearing. A prosecution witness recanted her trial testimony:

The motion was based on the affidavit of a prosecution witness who recanted her trial testimony that defendant admitted to her that he started a certain house fire. That testimony formed the basis for defendant’s conviction of arson in the second degree. Notably, the witness averred that, “Before the trial[,] the police investigator told me if I testified on [defendant’s] behalf they would take my daughter away. I am still concerned about this.” The People did not submit an opposing affidavit from any of the police officers involved in the case. The court denied the motion without a hearing upon finding that the witness’s recantation was unreliable.

We conclude based on the totality of the circumstances that the court erred in denying that part of the motion with respect to the conviction of arson in the second degree without first holding a hearing … . The witness’s “trial testimony, if false, was extremely prejudicial to defendant inasmuch as, without that testimony, there would have been no basis for the jury to convict defendant” for setting the fire at issue in the arson in the second degree count … .  People v Grant, 2018 NY Slip Op 02951, Fourth Dept 4-27-18

​CRIMINAL LAW (VACATE CONVICTION, IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT))/ EVIDENCE (CRIMINAL LAW, VACATE CONVICTION, IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT))/VACATE CONVICTION, MOTION TO  (RECANTED TESTIMONY, IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT))/RECANTED TESTIMONY (VACATE CONVICTION,  IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT))

,

JURY INSTRUCTION ALLOWED CONVICTION ON A THEORY NOT IN THE INDICTMENT, COUNT DISMISSED, SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT).

The Fourth Department determined that the harassment jury instruction was defective because it allowed the jury to convict on a theory that was not alleged in the indictment. The Fourth Department further found that the 18-year sentence for rape was unduly harsh and reduced the sentence to eight years. The Fourth Department noted that the sentencing court did not take certain mitigating factors into consideration and indicated defendant was sentenced harshly because he had decided to go to trial:

Here, the indictment charged defendant with harassment in the second degree on the ground that … he slapped the complainant with the intent to harass, annoy, or alarm her. Nevertheless, the court instructed the jury that it could find him guilty if he shoved her or subjected her to other forms of physical contact. The evidence at trial could have established either theory. Therefore, that part of the judgment convicting defendant of harassment in the second degree must be reversed … . …

… [T]he sentence imposed for rape in the first degree is unduly harsh and severe. The alleged incident occurred in the context of an intimate relationship that lasted several months between two otherwise consenting adults who were close in age. The complainant had the opportunity to report the incident to the police immediately after it happened but chose not to do so. In the recorded conversations between defendant and the complainant, which occurred two to three months after the incident, the complainant repeatedly expressed satisfaction with her relationship, and a willingness to use the criminal justice system to gain the upper hand in it. We note that defendant’s history of contacts with the criminal justice system is not extensive, and thus it does not weigh heavily against him.

The record does not indicate that the sentencing court considered any of the above substantial mitigating factors in imposing the sentence. To the contrary, the court expressed only that it wished to impose a sentence for rape in the first degree in excess of the offers made during the plea bargaining process. Indeed, the sentence of 18 years of incarceration is double that of the most recent plea offer. It is well established that a defendant may not be punished for exercising his constitutional right to a trial … . Although a sentence after trial usually will be harsher than a sentence accompanying a prior plea offer … , a defendant’s refusal to plead guilty does not absolve the court of its responsibility to consider appropriate sentencing factors … . People v Morales, 2018 NY Slip Op 02958, Fourth Dept 4-27-18

​CRIMINAL LAW (JURY INSTRUCTION ALLOWED CONVICTION ON A THEORY NOT IN THE INDICTMENT, COUNT DISMISSED, SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, JURY INSTRUCTION ALLOWED CONVICTION ON A THEORY NOT IN THE INDICTMENT, COUNT DISMISSED, SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT))/SENTENCING (SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT))/HARSH AND SEVERE (SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT))

,

A DEFENDANT WHO REQUESTS A RESTITUTION HEARING IS ENTITLED TO ONE, EVEN WHERE A HEARING HAD BEEN HELD AFTER DEFENDANT’S FIRST TRIAL (FOURTH DEPT).

The Fourth Department noted that defendant had requested a restitution hearing and therefore the court was required to hold one. Defendant’s conviction in her first trial was reversed and a new trial was ordered. Even though a hearing had been held in the first proceeding, she was entitled to a hearing after the second trial:

… [T]he court erred in denying her request for a restitution hearing. It is well settled that where, as here, a defendant requests a restitution hearing, Penal Law § 60.27 (2) requires that one be provided, “irrespective of the level of evidence in the record” … . Once we reversed the prior judgment and granted defendant a new trial, she was “restored to the status obtaining before the initial trial” … and, as a result, it is irrelevant that a hearing was held following the first trial. People v Case, 2018 NY Slip Op 02995, Fourth Dept 4-27-18

​CRIMINAL LAW (A DEFENDANT WHO REQUESTS A RESTITUTION HEARING IS ENTITLED TO ONE, EVEN WHERE A HEARING HAD BEEN HELD AFTER DEFENDANT’S FIRST TRIAL (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, RESTITUTION, A DEFENDANT WHO REQUESTS A RESTITUTION HEARING IS ENTITLED TO ONE, EVEN WHERE A HEARING HAD BEEN HELD AFTER DEFENDANT’S FIRST TRIAL (FOURTH DEPT))/RESTITUTION (CRIMINAL LAW, A DEFENDANT WHO REQUESTS A RESTITUTION HEARING IS ENTITLED TO ONE, EVEN WHERE A HEARING HAD BEEN HELD AFTER DEFENDANT’S FIRST TRIAL (FOURTH DEPT))

,

VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT).

The Third Department determined plaintiff’s motion to set aside the defense verdict in this pedestrian-car accident case (exonerating defendant driver from any comparative fault) should have been granted. Defendant testified she saw persons in the road about 100 yards ahead but did not slow down. When she realized she was going to hit someone she swerved to the left, apparently striking plaintiff at that point:

As a general matter, a motorist has a duty to maintain a proper lookout under the driving circumstances presented and to maintain a reasonably safe rate of speed… . A motorist is further “required to keep a reasonably careful look out for pedestrians, to see what was there to be seen, to sound the horn when a reasonably prudent person would have done so to warn a pedestrian of danger and to operate the car with reasonable care to avoid hitting any pedestrian on the roadway” … . These principles in mind, defendant testified that she first observed three people at the edge of Route 9N in front of the Algonquin restaurant heading across the road toward the parking lot on the west side. She estimated being “[p]robably about a football field” away when she first saw the pedestrians. She also estimated her speed at 30 miles per hour and acknowledged that she did not slow down. Explaining how the accident occurred, defendant testified as follows: “As I got closer to the people, who I thought were crossing the road, they were not moving and I knew that if I continued I would hit them so I severely twisted my wheel of the car thinking I could get around them.” She stated that, as she turned her wheel to the right, the pedestrians were on her left. She did not decrease her speed prior to swerving and could not remember sounding her horn.

Defendant’s version of the accident places Blanchard in the roadway, while Blanchard testified that she was in the west shoulder area at the time of impact. Even accepting defendant’s version, her testimony confirms that Blanchard was within her view for a distance of about 100 yards and defendant was aware that Blanchard was crossing the road, and yet, defendant did not slow down or sound her horn. Defendant’s own account confirms that she failed to take any evasive action until the last moment. In our view, defendant’s failure to take reasonable measures to avoid hitting Blanchard gives rise to some degree of comparative fault for this accident. As the jury’s verdict exonerating defendant could not have been reached on any fair interpretation of this evidence, a new trial is in order. Blanchard v Chambers, 2018 NY Slip Op 02852, Third Dept 4-26-18

​NEGLIGENCE (TRAFFIC ACCIDENTS, PEDESTRIANS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))/TRAFFIC ACCIDENTS (PEDESTRIANS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))/VERDICT, MOTION TO SET ASIDE (TRAFFIC ACCIDENTS, PEDESTRIANS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))/COMPARATIVE FAULT (TRAFFIC ACCIDENTS, PEDESTRIANS, VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT))

,

THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, over a concurrence and a two-justice dissent, reversing County Court, determined that prison personnel violated defendant’s Fourth Amendment rights in the manner a body cavity search was conducted. A packet of cocaine was removed from defendant’s buttocks-area during a strip search. Apparently the package could be seen but did not fall out on its own:

Here, there was probable cause, but no showing or claim of an emergency … . Considering that defendant was lying face down, naked and handcuffed, it is evident that the officers could keep him under full surveillance without any concern that the wrapped drugs would be absorbed into his body while efforts were made to procure a warrant … . Nor was any attempt made to seek the assistance of medical personnel to secure the contraband in a safe, hygienic manner… . Also, the record is unclear as to whether [the officer] was wearing gloves. Under the second Bell factor [Bell v Wolfish, 441 US 520], the manner in which this search was conducted was not reasonable. Given the above, we conclude that the search was conducted in violation of the Fourth Amendment and that the recovered drugs should have been suppressed. People v Holton, 2018 NY Slip Op 02836, Third Deptp 4-26-18

​CRIMINAL LAW (BODY CAVITY SEARCH, THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT))/BODY CAVITY SEARCH (CRIMINAL LAW, THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT))/SEARCH AND SEIZURE (CRIMINAL LAW, THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT))/SUPPRESSION (CRIMINAL LAW, BODY CAVITY SEARCH, THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT))

,

DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the evidence was not sufficient to support the “drug factory” jury instruction:

The court’s jury instruction on the drug factory presumption of Penal Law § 220.25(2) was improper. The statutory presumption “does not require that mixing or compounding paraphernalia be found on the premises” … . However, where, as here, the quantity of drugs found does not show “circumstances evincing an intent to unlawfully mix, compound, package, or otherwise prepare for sale” … , giving the drug factory charge is unwarranted. Here, the officers recovered approximately one gram of crack cocaine divided between 26 “twists.” The fact that a larger bag contained individual twists was not a sufficient basis for the trial court to employ the drug factory presumption … . The presence of an unspecified, untested, white residue on a kitchen counter does not justify the charge, where such is equally consistent with the residue left by household cooking and cleaning products. People v Johnson, 2018 NY Slip Op 02879, First Dept 4-26-18

​CRIMINAL LAW (DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT))/DRUG FACTORY (CRIMINAL LAW, JURY INSTRUCTIONS, DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT))

, ,

INSUFFICIENT PROOF OF COMPLIANCE WITH THE 90 DAY NOTICE MAILING REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), PLAINTIFF BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this foreclosure action should not have been granted because the proof of compliance with the Real Property Actions and Proceedings Law (RPAPL) 90 day notice mailing requirements was insufficient:

Proof of the requisite mailing is established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, 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 … .

Here, in moving for summary judgment, the plaintiff failed to submit an affidavit of service or other proof of mailing by the post office establishing that it properly served [defendant] pursuant to RPAPL 1304. The unsubstantiated and conclusory statement of a vice president of the plaintiff that a 90-day pre-foreclosure notice “was forwarded by regular and certified mail” to [defendant] “in full compliance with all requirements of RPAPL § 1304” was insufficient to establish that the notice was actually mailed to [defendant] by first-class and certified mail … . Wells Fargo Bank, NA v Mandrin, 2018 NY Slip Op 02826, Second Dept 4-25-18

​FORECLOSURE (INSUFFICIENT PROOF OF COMPLIANCE WITH THE 90 DAY NOTICE MAILING REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), PLAINTIFF BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, INSUFFICIENT PROOF OF COMPLIANCE WITH THE 90 DAY NOTICE MAILING REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), PLAINTIFF BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (FORECLOSURE, 90 DAY NOTICE,  INSUFFICIENT PROOF OF COMPLIANCE WITH THE 90 DAY NOTICE MAILING REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), PLAINTIFF BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

, ,

WILLFULNESS IS NOT AN ELEMENT OF CIVIL CONTEMPT, MOTHER’S MOTION TO FIND FATHER IN CIVIL CONTEMPT FOR VIOLATIONS OF ORDERS CONCERNING CONTACT WITH THE CHILDREN SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s motion to find father in civil contempt for violation of orders concerning contact with the children should have been granted. The court need not find the violations were willful:

To prevail on a motion to hold a party in civil contempt pursuant to Judiciary Law § 753(A)(3), the movant must establish by clear and convincing evidence (1) that a lawful order of the court was in effect, clearly expressing an unequivocal mandate, (2) the appearance, with reasonable certainty, that the order was disobeyed, (3) that the party to be held in contempt had knowledge of the court’s order, and (4) prejudice to the right of a party to the litigation … . Prejudice is shown where the party’s actions “were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party” … . In order for contempt sanctions to be imposed pursuant to Judiciary Law § 753(A), “willfulness” need not be shown … . Once the movant makes the required showing, the burden shifts to the alleged contemnor to refute that showing, or to offer evidence of a defense such as an inability to comply with the order … .

Here, the hearing record established that the father violated unequivocal mandates of the Family Court, of which he was aware, by removing the children from school and vacationing with them for a one-week period in 2015 without timely notice to the mother, failing to facilitate daily phone contact between the mother and the children during that period, and failing to complete the required parenting training. The record further demonstrates that the mother was prejudiced by those actions. Contrary to the determination of the court, a finding of willfulness was not required to establish the father’s civil contempt. Matter of Mendoza-Pautrat v Razdan, 2018 NY Slip Op 02790, Second Dept 4-25-18

​FAMILY LAW (CIVIL CONTEMPT, WILLFULNESS IS NOT AN ELEMENT OF CIVIL CONTEMPT, MOTHER’S MOTION TO FIND FATHER IN CIVIL CONTEMPT FOR VIOLATIONS OF ORDERS CONCERNING CONTACT WITH THE CHILDREN SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CIVIL CONTEMPT (FAMILY LAW, WILLFULNESS IS NOT AN ELEMENT OF CIVIL CONTEMPT, MOTHER’S MOTION TO FIND FATHER IN CIVIL CONTEMPT FOR VIOLATIONS OF ORDERS CONCERNING CONTACT WITH THE CHILDREN SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (CIVIL CONTEMPT, FAMILY LAW,  WILLFULNESS IS NOT AN ELEMENT OF CIVIL CONTEMPT, MOTHER’S MOTION TO FIND FATHER IN CIVIL CONTEMPT FOR VIOLATIONS OF ORDERS CONCERNING CONTACT WITH THE CHILDREN SHOULD HAVE BEEN GRANTED (SECOND DEPT))

,

AFFIDAVIT ALLEGING DEFENDANT MOVED ITS OFFICE AND FAILED TO INFORM THE SECRETARY OF STATE (AND THEREFORE DID NOT RECEIVE THE SUMMONS) WAS DEEMED INSUFFICIENT TO ALLOW IT TO DEFEND AN ACTION PURSUANT TO CPLR 317, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s motion to defend an action pursuant to CPLR 317 should not have been granted. The affidavit alleging defendant moved its office and failed to notify the secretary of state of the move (and therefore did not receive the summons) was deemed insufficient:

CPLR 317 provides that a person served with a summons, other than by personal delivery to him or her, who does not appear, may be allowed to defend the action within one year after he or she obtains knowledge of entry of the judgment upon a finding of the court that he or she did not personally receive notice of the summons in time to defend and has a potentially meritorious defense … . “The mere denial of receipt of the summons and complaint is not sufficient to establish lack of actual notice of the action in time to defend for the purpose of CPLR 317” … . Here, the defendant Grand Slam Ventures, LLC (hereinafter Grand Slam), failed to establish that it did not personally receive notice of the summons in time to defend the action. The affidavit of Grand Slam’s managing member averring that Grand Slam moved its office to an unspecified address in 2010, five years before the action was commenced, and failed to update its address on file with the Secretary of State, was not sufficiently detailed or substantiated to establish lack of actual notice of the action … . Moran v Grand Slam Ventures, LLC, 2018 NY Slip Op 02776, Second Dept 4-25-18

​CIVIL PROCEDURE (SERVICE OF PROCESS, AFFIDAVIT ALLEGING DEFENDANT MOVED ITS OFFICE AND FAILED TO INFORM THE SECRETARY OF STATE (AND THEREFORE DID NOT RECEIVE THE SUMMONS) WAS DEEMED INSUFFICIENT TO ALLOW IT TO DEFEND AN ACTION PURSUANT TO CPLR 317, SUPREME COURT REVERSED (SECOND DEPT))/SERVICE OF PROCESS (CPLR 317, AFFIDAVIT ALLEGING DEFENDANT MOVED ITS OFFICE AND FAILED TO INFORM THE SECRETARY OF STATE (AND THEREFORE DID NOT RECEIVE THE SUMMONS) WAS DEEMED INSUFFICIENT TO ALLOW IT TO DEFEND AN ACTION PURSUANT TO CPLR 317, SUPREME COURT REVERSED (SECOND DEPT))/CPLR 317 (SERVICE OF PROCESS, AFFIDAVIT ALLEGING DEFENDANT MOVED ITS OFFICE AND FAILED TO INFORM THE SECRETARY OF STATE (AND THEREFORE DID NOT RECEIVE THE SUMMONS) WAS DEEMED INSUFFICIENT TO ALLOW IT TO DEFEND AN ACTION PURSUANT TO CPLR 317, SUPREME COURT REVERSED (SECOND DEPT))/EVIDENCE (SERVICE OF PROCESS, CPLR 317, AFFIDAVIT ALLEGING DEFENDANT MOVED ITS OFFICE AND FAILED TO INFORM THE SECRETARY OF STATE (AND THEREFORE DID NOT RECEIVE THE SUMMONS) WAS DEEMED INSUFFICIENT TO ALLOW IT TO DEFEND AN ACTION PURSUANT TO CPLR 317, SUPREME COURT REVERSED (SECOND DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy