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THE JUDGE SHOULD NOT HAVE DECIDED MOTHER’S CUSTODY PETITION WITHOUT A BEST INTERESTS HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a hearing was required in this custody proceeding:

“Custody determinations . . . require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child” … . Accordingly, “custody determinations should ‘[g]enerally’ be made ‘only after a full and plenary hearing and inquiry'” … . “This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child” … . “[W]here . . . facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required” … .

Here, the Supreme Court erred in making a final custody determination without a hearing and without inquiring into the best interests of the parties’ child … . Matter of Bendter v Elikwu, 2023 NY Slip Op 01670, Second Dept 3-29-23

Practice Point: Factual issues raised in a custody proceeding should not be decided without a hearing.

 

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PRECLUSION OF EVIDENCE AS A DISCOVERY SANCTION WAS NOT WARRANTED; THERE WAS NO EVIDENCE OF WILLFUL OR CONTUMACIOUS CONDUCT AND THE SANCTIONED PARTY WAS NOT GIVEN AN OPPORTUNITY TO EXPLAIN THE FAILURE TO COMPLY WITH DISCOVERY ORDERS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the discover sanctions imposed by the judge on plaintiff were not warranted:

… Supreme Court improvidently exercised its discretion by imposing the drastic sanction of preclusion upon the plaintiff without affording the plaintiff adequate notice and an opportunity to be heard, including on facts relevant to whether the plaintiff’s noncompliance was willful and contumacious. The defendant did not move for sanctions pursuant to CPLR 3126 due to the plaintiff’s failure to comply with the interim order, nor did the court make its own motion or include language in the interim order warning that noncompliance would result in sanctions. The court also made its determination without oral argument, such that it is unclear what opportunity the plaintiff had to explain the circumstances of its noncompliance. …

… [E]ven if the plaintiff had been provided with adequate due process, the Supreme Court still would have improvidently exercised its discretion by, inter alia, precluding the plaintiff from serving further demands and from introducing certain documents. The record contains no showing of “a clear pattern of willfulness and contumacious conduct necessary to justify [such] sanctions” … . There is no indication that the plaintiff “repeated[ly] fail[ed] to comply with court-ordered discovery” or “fail[ed] to comply with court-ordered discovery over an extended period of time” … . Instead, this case involves a “single incident of noncompliance” with a court order, which was insufficient to warrant a sanction as drastic as preclusion … , especially given the policy of resolving cases on their merits and the fact that discovery was still ongoing at the time the court made its determination. Korsinsky & Klein, LLP v FHS Consultants, LLC, 2023 NY Slip Op 01667, Second Dept 3-29-23

Practice Point; Before precluding evidence as a discovery sanction, there must be a finding of willful and contumacious conduct and the the sanctioned party must be given a chance to explain the failure to comply with discovery orders.

 

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​ THE JUDGE SHOULD NOT HAVE DETERMINED THE TRIAL WITNESS’S IDENTIFICATION OF DEFENDANT WAS CONFIRMATORY FOR THE FIRST TIME AT TRIAL; A MIDTRIAL RODRIGUEZ HEARING SHOULD HAVE BEEN HELD; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter for a hearing to determine whether a witness’s identification of defendant was confirmatory, noted that the judge should not have found the identification confirmatory for the first time based on the witness’s trial testimony. A Rodriguez hearing should have been when the issue came up at trial:

The witness in question disclosed on cross-examination at trial that he had identified defendant as the assailant in a photograph shown to him by the police. The People’s CPL 710.30 notice did not reference this identification. Defense counsel thus asked the court to strike the witness’s testimony on the ground of lack of notice, but the court, relying on the witness’s trial testimony, ruled that the People were not required to give notice because the identification was confirmatory. That was error. As the Court of Appeals has made clear, “prior familiarity should not be resolved at trial in the first instance” (Rodriguez, 79 NY2d at 452 …), and, in any event, the witness’s trial testimony was not sufficient to establish as a matter of law that the identification was confirmatory.

Although the witness testified that he knew defendant because he had seen him “a couple of times” at the barber shop, and that the two had each other’s phone numbers, he also testified that he did not know defendant well, that he knew him only by a common nickname, and that they never spoke again after the assault. A midtrial Rodriguez hearing would have allowed defense counsel to flesh out the extent of the relationship between the two men, thereby allowing the court to make a more informed determination as to whether the pretrial identification of defendant was confirmatory as a matter of law. People v Alcaraz-ubiles, 2023 NY Slip Op 01637, Fourth Dept 3-24-23

Practice Point: If the defense is not given notice of a witness’s identification of the defendant, the witness cannot testify about the identification unless it was “confirmatory,” I.e., based on knowing the defendant. Here the judge should not have found the identification confirmatory based on the witness’s trial testimony. A midtrial Rodriguez hearing should have been held. The matter was remitted.

 

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THE COMPLAINT STATED A CAUSE OF ACTION FOR BREACH OF IMPLIED CONTRACT AND DEFENDANT’S MOTION TO DISMISS BASED ON DOCUMENTARY EVIDENCE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the complaint stated a cause of action for breach of implied contract and the defendant’s motion to dismiss the breach of implied cause of action based on documentary evidence should not have been granted:

“Whether an implied-in-fact contract was formed and, if so, the extent of its terms, involves factual issues regarding the intent of the parties and the surrounding circumstances” … . Contrary to the court’s determination, whether plaintiff “can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” … and, here, plaintiff’s allegations sufficiently state a cause of action for breach of an implied contract arising from an implicit agreement to extend the brokerage contract … . Similarly, the complaint sufficiently alleges the elements of a claim for unjust enrichment … .

… “A motion to dismiss pursuant to CPLR 3211 (a) (1) will be granted if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the [plaintiff’s] claim[s]” … . Although contracts are among the types of documentary evidence that may be considered for purposes of CPLR 3211 (a) (1) … , we conclude that the contract submitted by defendants in support of their motion failed to “utterly refute . . . plaintiff’s allegations [that the contract was implicitly extended] or conclusively establish a defense as a matter of law” … . University Hill Realty, Ltd v Akl, 2023 NY Slip Op 01634, Fourth Dept 3-24-23

Practice Point: Here the breach of implied contract cause of action should not have been dismissed.

Practice Point: The motion to dismiss the breach of  implied contract cause of action based on documentary evidence should not have been granted. Although a contract can be the type of evidence which qualifies as “documentary evidence” here the contract did not utterly refute the allegation the contract was extended.

 

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THE PROSECUTOR DID NOT INSTRUCT THE GRAND JURY ON ALL OF THE ELEMENTS OF PROMOTING A SEXUAL PERFORMANCE OF A CHILD AND IMPROPERLY CROSS-EXAMINED THE DEFENDANT IN THE GRAND JURY PROCEEDINGS; ALTHOUGH DEFENDANT WAS PROPERLY CONVICTED, THE INDICTMENT WAS DISMISSED WITHOUT PREJUDICE (FOURTH DEPT).

The Fourth Department, reversing the conviction after trial and dismissing the indictment (without prejudice), determined the prosecutor did not properly instruct the grand jury on the law and improperly cross-examined the defendant in the grand jury proceedings:

… [T]he prosecutor failed to instruct the grand jury, pursuant to the holding in People v Kent (19 NY3d 290 [2012]), that some “affirmative act” is required to prove the crime, and that “viewing computer images of a sexual performance by a child on a computer does not by itself constitute promotion of such images” (CJI2d[NY] Penal Law § 263.15). Although it is well established that a grand jury “need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law” … , we conclude under the circumstances of this case that the deficiencies in the prosecutor’s charge impaired the integrity of the grand jury proceeding and gave rise to the possibility of prejudice. We further conclude that the potential for prejudice was increased by the prosecutor’s cross-examination of defendant during the grand jury presentation in a manner that was “calculated to unfairly create a distinct implication that [defendant] was lying” … . People v Congdon, 2023 NY Slip Op 01622, Fourth Dept 3-24-23

Practice Point: The grand jury should have been instructed that some affirmative act in addition to simply viewing child pornography of a computer is required for the offense of promoting the sexual performance of a child.

Practice Point: The prosecutor increased the prejudice resulting from the improper instruction on the law by improperly cross-examining the defendant in the grand jury proceeding to imply that the defendant was lying.

Practice Point: Even though the defendant was properly convicted at trial, the flaws in the grand jury proceeding required dismissal of the indictment.

 

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DEFENDANT SUFFICIENTLY RAISED INEFFECTIVE ASSISTANCE AND PREJUDICE ISSUES IN HIS MOTION TO VACATE HIS CONVICTION BECAUSE HE WAS NOT INFORMED HE COULD BE DEPORTED BASED ON THE GUILTY PLEA; THE JUDGE SHOULD NOT HAVE DENIED THE MOTION WITHOUT A HEARING (FIRST DEPT). ​

The Frist Department, reversing Supreme Court and recalling and vacating a prior appellate decision, determined defendant sufficiently raised ineffective assistance of counsel and prejudice in his motion to vacate his conviction on the ground he was not informed of the possibility of deportation before entering a guilty plea. The motion should not have been denied without a hearing:

Defendant moved to vacate the judgment of conviction based on Padilla v Kentucky (559 US 356 [2010]), which held that criminal defense attorneys must advise noncitizen clients about the deportation risks of a guilty plea. In light of the affidavits from defendant, defendant’s plea counsel (indicating no recollection or notation that he discussed immigration consequences with defendant), and his sister, as well as motion counsel’s representation that plea counsel admitted in an interview that he was not well-versed in immigration law, defendant presented sufficient evidence that counsel’s performance fell below an objective standard of reasonableness, such that a hearing was warranted if a sufficient showing was similarly raised as to prejudice.

Regarding whether defendant was prejudiced by counsel’s alleged deficient performance, we also find that defendant’s submissions are sufficient to warrant a hearing. Given the length of time defendant has resided in the United States, his ties to the United States, his lack of ties to the Dominican Republic, and his employment history, defendant demonstrated a reasonable possibility that, but for counsel’s errors, he would not have pleaded guilty and instead proceeded to trial … . People v Guzman-Caba, 2023 NY Slip Op 01593, First Dept 3-23-23

Practice Point: Here the motion to vacate the conviction sufficiently raised ineffective assistance and prejudice issues which warranted a hearing. The defendant presented evidence he was not informed he could be deported based on his guilty plea and demonstrated he was prejudiced by the failure. The judge should have ordered a hearing.

 

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DNA EVIDENCE RECOVERED AFTER THE DEFENDANT WAS CONVICTED OF MURDER POINTED TO THE VICTIM’S BOYFRIEND AS THE PERPETRATOR; BECAUSE THE EVIDENCE AGAINST THE DEFENDANT WAS A SINGLE IDENTIFICATION WITNESS WHO WAS 88 YEARS OLD AND HAD POOR VISION, THE DNA EVIDENCE MAY HAVE LED TO A MORE FAVORABLE VERDICT; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, vacating defendant’s murder conviction and ordering a new trial, determined the DNA evidence (from under the victim’s fingernails) procured after the trial may have resulted in a verdict more favorable to the defendant. Defendant was identified as the perpetrator by an 88-year-old witness who had poor vision. The DNA recovered from the victim was that of the victim’s boyfriend. There was no other evidence tying defendant to the scene:

… [T]he defense theory at trial was one of mistaken identity. The defendant posited that the perpetrator was actually Samuels’s [the victim’s] boyfriend, Jermaine Robinson. No physical evidence linked the defendant to the crime. The only identity evidence offered by the People at trial was the testimony of a single eyewitness, Marchon, who was 88 years old at the time of the incident and suffered from significantly impaired vision. Marchon’s description to the police of the perpetrator’s appearance was not conclusive and was, in part, more consistent with Jermaine Robinson’s appearance. Under the facts of the case, it would not have been unreasonable to conclude that Marchon confused Samuels’s estranged husband with her current boyfriend in making her identification to the police. Marchon also was not able to conclusively identify the defendant at trial. Moreover, various members of the defendant’s family provided alibi evidence for his whereabouts on the day of the attack. Finally, two Allen charges … were required before the jury was able to reach a verdict.

Under all of these circumstances, while not a “virtual certainty,” there existed a reasonable probability that the verdict would have been more favorable to the defendant had the DNA evidence been admitted at trial … . People v Robinson, 2023 NY Slip Op 01533, Second Dept 3-22-23

Practice Point: Here in this murder case DNA evidence discovered after the trial pointed to a different perpetrator and the single eyewitness was 88 years old and had poor vision. Had the DNA evidence been admitted at trial the verdict may have been more favorable to defendant. New trial ordered.

 

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IN THIS NO-FAULT INSURANCE CASE, THE INSURER REQUESTED AN EXAMINATION UNDER OATH (EUO) WITHOUT AFFORDING THE MEDICAL PROVIDER SPECIFIC, OBJECTIVE JUSTIFICATION FOR THE REQUEST; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE INSURER (FIRST DEPT).

​The First Department, reversing Supreme Court in this no-fault insurance case, determined the insurer did not provide the medical provider with objective justification for its request for an examination under oath (EUO). Summary judgment should not have been awarded to the insurer:

Although plaintiff timely requested an EUO and subsequently issued a timely denial … , the motion court erred in granting summary judgment. 11 NYCRR 65-3.5 (e) requires an EUO request be based on application of objective standards, and that the insurer must have a specific objective justification. Summary judgment is premature under CPLR 3212 where an insurer fails to provide a medical provider with its objective justification for requesting the EUO … . This Court has explained that the insurer’s reason for the EUO is essential for medical providers to oppose an insurer’s summary judgment motion, and that information is in the exclusive knowledge and control of the insurer … . Country-Wide Ins. Co. v Alicea, 2023 NY Slip Op 01474, First Dept 3-21-23

Practice Point: In a no-fault insurance matter, the insurer’s request for an examination under oath (EUO) must be supported by “specific objective justification.” Here the failure to afford the medical provider objective justification precluded summary judgment in favor of the insurer.

 

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THE COMPLAINT STATED A CAUSE OF ACTION FOR UNPAID OVERTIME WITHOUT SPECIFYING PARTICULAR DATES OR WEEKS; AFFIDAVITS ARE NOT DOCUMENTARY EVIDENCE WHICH WILL SUPPORT A “DOCUMENTARY EVIDENCE” MOTION TO DISMISS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint stated a cause of action for unpaid overtime wages pursuant to the Labor Law and the proof submitted by defendant did not support a motion to dismiss based on documentary evidence:

Plaintiffs’ complaint sufficiently states a claim for unpaid overtime wages in violation of Labor Law §§ 191 and 663 and 12 NYCRR 142-2.2 … . Plaintiffs allege that they were not compensated for hours spent before and after their shift, loading company vehicles and receiving job assignments, before traveling to construction sites throughout the New York City region … . Although the complaint does not contain the particular dates or weeks that plaintiffs were allegedly underpaid, it provides sufficient notice of their causes of action for unpaid wages and overtime based on pre-shift and post-shift work performed at defendant’s yard … .

In addition, defendant’s documentary evidence is insufficient to support a motion to dismiss under CPLR 3211(a)(1). Dismissal on the basis of documentary evidence is appropriate only if that evidence “utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . Affidavits are not documentary evidence that can support a 3211(a)(1) motion … . The documentary evidence fails to utterly refute plaintiffs’ claim that they were not timely paid overtime compensation. Despite defendant’s assertions, it is unclear whether the daily reports submitted with its motion properly reflect the alleged work performed before plaintiffs’ shifts began or after their shifts had purportedly ended. Rosario v Hallen Constr. Co., Inc., 2023 NY Slip Op 01490, First Dept 3-21-23

Practice Point: Here the complaint stated a cause of action for unpaid overtime despite the absence of specific dates or week when plaintiffs were allegedly underpaid.

Practice Point: A motion to dismiss based on documentary evidence is not supported when the documents are affidavits.

 

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IN A TAX FORECLOSURE PROCEEDING, EVIDENCE THE LETTERS PROVIDING NOTICE OF THE FORECLOSURE WERE NOT RETURNED TO THE TAXING AUTHORITY DOES NOT PRECLUDE RAISING A QUESTION OF FACT WITH PROOF NOTICE WAS NOT RECEIVED (CT APP). ​

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Cannataro, determined the controlling statute, Real Property Tax Law (RPTL) 1125(1)(b), does not preclude plaintiff in a tax foreclosure proceeding from presenting evidence the statutory notice requirements were not complied with. The statute states that notice of the foreclosure “shall be deemed received” if neither the certified letter nor the letter sent by first class mail are returned within 45 days. The taxing authority presented evidence the letters were not returned. Plaintiff presented evidence notice was sent to the wrong address and the certified letter lacked a postmark. The Court of Appeals held plaintiff had raised a question of fact about compliance with the statutory notice requirement, notwithstanding the evidence the letters were not returned:

By its unambiguous terms, RPTL 1125 (1) (b) (i) relates to whether notice will be “deemed received,” not whether the taxing authority has complied with the statutory mailing requirements. Although the taxing authority must ensure that “[a]n affidavit of mailing of such notice [is] executed” … , the statute expressly provides that “[t]he failure of an intended recipient to receive any such notice shall not invalidate any tax or prevent the enforcement of the same as provided by law” … . It is only when both the certified mailing and the first class mailing are returned that the statute requires the taxing authority to take additional action beyond the requirements set forth in RPTL 1125 (1) (b) (i) … .

That is not the end of the analysis, however, in cases where the interested party argues, as plaintiff does here, that the taxing authority failed to comply with the mailing requirements set forth in RPTL 1125 (1) (b) (i). … RPTL 1125 (1) (b) (i) contains no “presumption of service” … . Nor does section 1125 (1) (b) (i) bar an interested party from submitting evidence that would call the taxing authority’s compliance with its requirements into issue or limit the proof an interested party may use to raise an issue of fact with respect to that compliance only to evidence that both the certified and first class mailings were returned. Courts “may not create a limitation that the legislature did not enact” … . James B. Nutter & Co. v County of Saratoga, 2023 NY Slip Op 01469, CtApp 3-21-23

Practice Point: In a tax foreclosure proceeding, proof that the letters notifying the property owner of the foreclosure were not returned to the taxing authority (RPTL 1125(1)(b)) does not preclude the owner from raising a question of fact with evidence notice was not received (here evidence the certified letter did not have a postmark and a letter was sent to the wrong address).

 

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