Judges Archives - New York Appellate Digest

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

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

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

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

May 5, 2021/0 Comments/by Bruce Freeman

Appeals, Evidence, Family Law, Judges

FAMILY COURT, UPON REMITTAL AFTER A PRIOR REVERSAL ON APPEAL, DID NOT MAKE A SUFFICIENT RECORD FOR REVIEW OF ITS ORDER RE: FATHER’S PARENTAL ACCESS (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court, upon remittal after a prior reversal, did not create a sufficient record to allow review of its order re: father’s parental access schedule:

“In determining custody and [parental access] issues, the most important factor to be considered is the best interests of the child” … . “Generally, [parental access] should be determined after a full evidentiary hearing to determine the best interests of the child” … .

“A trial court must state in its decision ‘the facts it deems essential’ to its determination” … . “Effective appellate review, especially in proceedings involving child custody determinations, ‘requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses'” … . Under the circumstances of this case, the record is not sufficient for this Court to conduct an intelligent review of the evidence.

Furthermore, the children are of such an age and maturity that information regarding their preferences is necessary to create a sufficient record to determine their best interests … . Matter of Georgiou-Ely v Ely, 021 NY Slip Op 02796, Second Dept 5-5-21

May 5, 2021/0 Comments/by Bruce Freeman

Evidence, Family Law, Judges

THE JUDGE’S MAINTENANCE AWARD MAY NOT HAVE BEEN PROPERLY BASED UPON THE FACTORS ENUMERATED IN DOMESTIC RELATIONS LAW 236; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, vacating the maintenance award and remitting for recalculation, determined Supreme Court did not set forth the factors for the maintenance calculation as required by Domestic Relations Law 236:

Defendant husband appeals from a judgment of divorce that, inter alia, directed him to pay plaintiff wife $750 a week in maintenance for a period of 17 years. On appeal, he contends that Supreme Court erred in awarding maintenance for a period of time in excess of the recommendation set forth in the advisory schedule in Domestic Relations Law § 236 (B) (6) (f) (1) without adequately demonstrating its reliance on the relevant statutory factors enumerated in section 236 (B) (6) (e) (see § 236 [B] [6] [f] [2]). We agree and further conclude that the court erred in awarding plaintiff maintenance without sufficiently setting forth the relevant factors enumerated in section 236 (B) (6) (e) that it relied on in reaching its determination. Although the court need not specifically cite the factors enumerated in that section, its analysis must show that it at least considered the relevant factors in making its determination … . The determination must also “reflect[] an appropriate balancing of [the wife’s] needs and [the husband’s] ability to pay” … .

… [T]he court stated that it awarded plaintiff $750 per week—an amount deviating from the statutory guidelines—for a duration in excess of the statutory guidelines based on the length of the marriage, the parties’ disproportionate earning capacities, and defendant’s tax debt. However, although the statutory guidelines use the length of the marriage to calculate the duration of the maintenance award … , the length of the parties’ marriage is not a factor enumerated in section 236 (B) (6) (e). Further, the court did not state what factors it considered, in addition to actual earnings, in determining the parties’ earning capacities … . Moreover, the court did not determine whether defendant’s substantial tax debt would impede his ability to pay plaintiff’s maintenance award … . Thus, the court failed to show that it considered any of the factors enumerated in section 236 (B) (6) (e) (1) in making its determination of both the amount and duration of the maintenance award. Gutierrez v Gutierrez, 2021 NY Slip Op 02662, Fourth Dept 4-30-21

April 30, 2021/0 Comments/by Bruce Freeman

Civil Procedure, Foreclosure, Judges

SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DETERMINED DEFENDANT IN THIS FORECLOSURE ACTION WAIVED DISMISSAL FOR FAILURE TO TIMELY MOVE FOR A DEFAULT JUDGMENT BECAUSE THE ISSUE WAS DISPOSITIVE AND NEVER LITIGATED; THE BANK’S FAILURE TO TIMELY MOVE FOR A DEFAULT JUDGMENT PURSUANT TO CPLR 3215 (C) REQUIRED DISMISSAL OF THE BANK’S ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-bank’s failure to move for a default judgment within one year required dismissal of the complaint pursuant to CPLR 3215 (c). The court noted that Supreme Court should not have, sua sponte, held defendant waived dismissal pursuant to CPLR 3215 (c) because the issue had never been litigated:

Although the Supreme Court keenly observed that the defendants had filed a notice of appearance in the first action in October 2014, it should not have, sua sponte, determined that such notice of appearance constituted a waiver of their right to seek dismissal of the complaint pursuant to CPLR 3215(c), as the parties never litigated the issue of waiver. Since that branch of the defendants’ cross motion which was pursuant to CPLR 3215(c) to dismiss the complaint had “‘dispositive import'” … , the court should have notified the parties of the waiver issue and afforded them an opportunity to be heard prior to determining the cross motion on a ground neither side argued. …

“The language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory, inasmuch as courts ‘shall’ dismiss claims (CPLR 3215[c]) for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned” … . “‘Failure to take proceedings for entry of judgment may be excused, however, upon a showing of sufficient cause,’ which requires the plaintiff to ‘demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action'” … . Wells Fargo Bank v Aucapina, 2021 NY Slip Op 02561, Second Dept 4-28-21

April 28, 2021/0 Comments/by Bruce Freeman

Appeals, Criminal Law, Judges

DEFENDANT’S PLEA ALLOCUTION NEGATED AN ELEMENT OF THE OFFENSE; PRESERVATION OF THE ERROR NOT REQUIRED BECAUSE THE JUDGE FAILED TO INQUIRE FURTHER AT THE TIME OF THE ALLOCUTION (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined the plea allocution negated the intent-to-sell element of criminal possession of a controlled substance. Preservation of the error for appeal was not required because the judge did not make a sufficient inquiry at the time of the allocution:

As charged here, criminal possession of a controlled substance in the third degree requires “knowingly and unlawfully” possessing “a narcotic drug with intent to sell it” (Penal Law § 220.16[1]). The defendant denied during his plea allocution that he intended to sell the drugs he possessed. This is “that rare case . . . where the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea” … . …

“[W]here a defendant’s factual recitation negates an essential element of the crime pleaded to, the court may not accept the plea without making further inquiry to ensure that defendant understands the nature of the charge and that the plea is intelligently entered” … . When a defendant makes remarks during the plea allocution that cast significant doubt on his guilt concerning an element of the crime, the court has a duty to conduct further inquiry to ensure that the plea was knowingly and voluntarily made … . Where, as here, the court fails in its duty to inquire further, a defendant may raise a claim regarding the validity of the plea even without having moved to withdraw the plea … . People v Gause, 2021 NY Slip Op 02543, Second Dept 4-28-21

April 28, 2021/0 Comments/by Bruce Freeman

Attorneys, Criminal Law, Judges

THE JUDGE’S LAW CLERK, A FORMER ASS’T DA, DISCUSSED DEFENDANT’S SENTENCING WITH THE JUDGE; THE JUDGE SHOULD HAVE RECUSED HIMSELF FROM THE SENTENCING, SENTENCE VACATED (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined the sentencing judge should have recused himself because his law clerk, a former assistant DA, was not screened from the case:

… [A]fter the verdict was rendered, but prior to sentencing, the trial justice hired as his law clerk a former Queens County Assistant District Attorney who had been involved in the investigation and the early stages of the defendant’s prosecution. “‘[A] law clerk is probably the one participant in the judicial process whose duties and responsibilities are most intimately connected with the judge’s own exercise of the judicial function'” … .

Under the circumstances of this case, due process principles did not require recusal, as there was no indication that the trial justice had a direct, personal, substantial, or pecuniary interest in the case … . However, since the law clerk was not screened from working on this case and, according to the trial justice, actually discussed the sentencing of the defendant with the justice, the justice should have recused himself “‘in a special effort to maintain the appearance of impartiality'” … . People v Hymes, 2021 NY Slip Op 02412, Second Dept 4-21-21

April 21, 2021/0 Comments/by Bruce Freeman

Fiduciary Duty, Judges, Trusts and Estates

PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT (SCPA), AN ADMINISTRATOR MAY BE SUSPENDED WITHOUT A PETITION OR ISSUANCE OF PROCESS FOR MISAPPROPRIATING ESTATE PROPERTY (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined the motion to suspend the administrators of the estate should have been granted. The administrators had allowed the estate to languish for 20 years and there was evidence estate property had been misappropriated by one administrator:

Pursuant to SCPA 719, “the court may make a decree suspending . . . or revoking letters issued to a fiduciary from the court . . . without a petition or the issuance of process” where, among other things, “any of the facts provided in [SCPA] 711 are brought to the attention of the court” (SCPA 719[10] … . The circumstances set forth under SCPA 711 justifying “a decree suspending . . . or revoking those letters” include a fiduciary “having wasted or improperly applied the assets of the estate” … or having “removed property of the estate . . . without prior approval of the court” … . “The removal of a fiduciary pursuant to SCPA 711 and 719 is equivalent to ‘a judicial nullification of the testator’s choice and may only be decreed when the grounds set forth in the relevant statutes have been clearly established'” … . The grounds set forth under SCPA 711 may be clearly established “by undisputed facts or concessions, where the fiduciary’s in-court conduct causes such facts to be within the court’s knowledge, or where facts warranting amendment of letters are presented to the court during a related evidentiary proceeding” … . “Thus, revoking a fiduciary’s letters . . . pursuant to SCPA 719 will constitute an abuse of discretion ‘where the facts are disputed, where conflicting inferences may be drawn therefrom, . . . or where there are claimed mitigating facts that, if established, would render summary removal an inappropriate remedy'” … .

Here, the record contains undisputed evidence of conflict between the administrators, and evidence that the animosity between them has interfered with the expeditious administration of the decedent’s estate, which they have allowed to languish for nearly two decades … . Moreover, Menfus [one of the administrators] admitted … he executed a deed to one of the subject properties to himself, and permitted his father to live in the other property rent free. Matter of Steward, 2021 NY Slip Op 02395, Second Dept 4-21-21

April 21, 2021/0 Comments/by Bruce Freeman

Family Law, Judges

FATHER’S PETITION FOR A MODIFICATION OF CUSTODY OR INCREASED PARENTAL ACCESS SHOULD NOT HAVE BEEN DENIED WITHOUT AN IN CAMERA INTERVIEW OF THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s petition for joint custody or an expansion of parental access should not have been denied without an in camera interview of the child:

A modification of a court-ordered custody arrangement must be based upon a showing of a change in circumstances such that the modification is required to protect the best interests of the child … . A child’s changing needs as he or she grows older can sufficiently constitute a change in circumstances … .

Here, in light of the evidence presented by the father and assertions of the attorney for the child, the Family Court should not have determined the father’s petition without conducting an in camera interview with the child. “[W]hile the express wishes of children are not controlling, ‘they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful'” … . Matter of Coleman v Lymus, 2021 NY Slip Op 02389, Second Dept 4-21-21

April 21, 2021/0 Comments/by Bruce Freeman

Family Law, Judges

THE CUSTODY AWARD SHOULD NOT HAVE BEEN MADE, SUA SPONTE, WITHOUT A PLENARY HEARING; WHERE A CUSTODY AWARD IS MADE WITHOUT A HEARING THE COURT SHOULD ARTICULATE THE FACTORS CONSIDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court should have held a hearing before awarding sole custody of the children to plaintiff. The Second Department noted that, where a hearing is not held, the court should articulate the factors considered:

“The court’s paramount concern in any custody and visitation proceeding is to determine, under the totality of the circumstances, what is in the best interests of the child[ren]” … . “Custody determinations should generally 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 interests of the child” … . “[A] court opting to forgo a plenary hearing must take care to clearly articulate which factors were—or were not—material to its determination, and the evidence supporting its decision” … .

Here, the record reflects that the Supreme Court failed to inquire into whether an award of sole legal and physical custody to the plaintiff was in the best interests of the children … . Moreover, the court failed to articulate what factors it considered in awarding custody to the plaintiff … . Indictor v Indictor, 2021 NY Slip Op 01968, Second Dept 3-31-21

March 31, 2021/by Bruce Freeman

Attorneys, Criminal Law, Judges

THE TRIAL JUDGE DID NOT CONDUCT AN ADEQUATE INQUIRY BEFORE ALLOWING DEFENDANT TO REPRESENT HIMSELF (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the trial judge did not conduct an adequate inquiry before allowing defendant to represent himself:

A court must determine that the defendant’s waiver of the right to counsel is made competently, intelligently, and voluntarily before allowing that defendant to represent himself or herself … . In order to make that evaluation, the court “must undertake a ‘searching inquiry’ designed to ‘insur[e] that a defendant [is] aware of the dangers and disadvantages of proceeding without counsel'” … . The court’s inquiry “must accomplish the goals of adequately warning a defendant of the risks inherent in proceeding pro se, and apprising a defendant of the singular importance of the lawyer in the adversarial system of adjudication” … . “The record should also disclose ‘that a trial court has delved into a defendant’s age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver’ of the right to counsel” … . Here, although the court obtained certain pedigree information from the defendant, it failed to ascertain that the defendant was aware of the risks inherent in proceeding without an attorney and the benefits of having counsel represent him at trial … . Moreover, the court failed to discuss the potential sentence that could be imposed … . Thus, the court’s inquiry was insufficient to ensure that the defendant understood the dangers and disadvantages of self-representation. People v Lemmo, 2021 NY Slip Op 01997, Second Dept 3-31-21

March 31, 2021/by Bruce Freeman

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

FAMILY COURT, UPON REMITTAL AFTER A PRIOR REVERSAL ON APPEAL, DID NOT MAKE A SUFFICIENT RECORD FOR REVIEW OF ITS ORDER RE: FATHER’S PARENTAL ACCESS (SECOND DEPT).

THE JUDGE’S MAINTENANCE AWARD MAY NOT HAVE BEEN PROPERLY BASED UPON THE FACTORS ENUMERATED IN DOMESTIC RELATIONS LAW 236; MATTER REMITTED (FOURTH DEPT).

DEFENDANT’S PLEA ALLOCUTION NEGATED AN ELEMENT OF THE OFFENSE; PRESERVATION OF THE ERROR NOT REQUIRED BECAUSE THE JUDGE FAILED TO INQUIRE FURTHER AT THE TIME OF THE ALLOCUTION (SECOND DEPT).

THE JUDGE’S LAW CLERK, A FORMER ASS’T DA, DISCUSSED DEFENDANT’S SENTENCING WITH THE JUDGE; THE JUDGE SHOULD HAVE RECUSED HIMSELF FROM THE SENTENCING, SENTENCE VACATED (SECOND DEPT).

PURSUANT TO THE SURROGATE’S COURT PROCEDURE ACT (SCPA), AN ADMINISTRATOR MAY BE SUSPENDED WITHOUT A PETITION OR ISSUANCE OF PROCESS FOR MISAPPROPRIATING ESTATE PROPERTY (SECOND DEPT).

FATHER’S PETITION FOR A MODIFICATION OF CUSTODY OR INCREASED PARENTAL ACCESS SHOULD NOT HAVE BEEN DENIED WITHOUT AN IN CAMERA INTERVIEW OF THE CHILD (SECOND DEPT).

THE CUSTODY AWARD SHOULD NOT HAVE BEEN MADE, SUA SPONTE, WITHOUT A PLENARY HEARING; WHERE A CUSTODY AWARD IS MADE WITHOUT A HEARING THE COURT SHOULD ARTICULATE THE FACTORS CONSIDERED (SECOND DEPT).

THE TRIAL JUDGE DID NOT CONDUCT AN ADEQUATE INQUIRY BEFORE ALLOWING DEFENDANT TO REPRESENT HIMSELF (SECOND DEPT).

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