Judges – Page 107 – New York Appellate Digest

THE JUDGE DID NOT HAVE THE AUTHORITY TO GRANT DEFENSE COUNSEL’S REQUEST FOR A VIDEOTAPE OF AN INTERVIEW OF THE CHILD (ALLEGED) VICTIM IN THIS SEXUAL OFFENSE CASE, THE INTERVIEW WAS CONDUCTED BY A PRIVATE PARTY AND WAS DISCOVERABLE ONLY IF IT CONSTITUTED BRADY (EXCULPATORY) MATERIAL, THE JUDGE DID NOT VIEW THE TAPE TO DETERMINE WHETHER IT WAS BRADY MATERIAL (FOURTH DEPT).

The Fourth Department determined a County Court judge did not have the authority to grant the defense request for a videotape of an interview of the child (alleged) victim in this sexual offense case. The child was interviewed by a private child advocacy group (Bivona). The only ground upon which the court could grant the request was that the videotape constituted exculpatory (Brady) material. However, the judge did not conduct an in camera review of the tape, and therefore had no basis for determining the tape was exculpatory. The petitioner here (the DA) brought this Article 78 proceeding to prohibit the respondent (the judge) from allowing defense counsel to review the tape:

… [R]espondent issued a written order acknowledging that the video recording did not constitute Rosario material and that he thus lacked any authority to order its disclosure on that ground … . Instead, respondent concluded that the video recording could potentially contain exculpatory evidence, which petitioner would be obligated to disclose under Brady v Maryland … . Respondent determined that neither he nor the “untrained prosecutor” could make the determination whether the person interviewing the child “employ[ed] suggestive interrogation techniques.” Rather, “only defense counsel, with full knowledge of the defendant’s case[, could] make the proper assessment.” As a result, respondent again ordered petitioner to permit defendant’s attorney to inspect the video recording. * * *

… [A] prosecutor possesses some discretion in deciding what evidence should be disclosed to the defense … but, “where a request [for Brady material] is made and there is some basis’ for believing that the prosecutor may be in possession of potentially exculpatory material, deference to the prosecutor’s discretion must give way, and the duty to determine the merits of the request for disclosure then devolves on the trial court’ “… . Nevertheless, “[d]iscovery which is unavailable pursuant to the statute may not be ordered based on principles of due process because there is no general constitutional right to discovery in criminal cases’ “… .

Here, there has been no determination that the video recording contains exculpatory evidence, and thus defendant has no right to disclosure thereof. Inasmuch as respondent required petitioner to disclose evidence before determining whether defendant is entitled to such disclosure, we conclude that respondent acted in excess of his authority and that a writ of prohibition is the appropriate remedy … . Matter of Doorley v Castro, 2018 NY Slip Op 02939, Fourth Dept 4-27-18

CRIMINAL LAW (EVIDENCE, JUDGES, THE JUDGE DID NOT HAVE THE AUTHORITY TO GRANT DEFENSE COUNSEL’S REQUEST FOR A VIDEOTAPE OF AN INTERVIEW OF THE CHILD (ALLEGED) VICTIM IN THIS SEXUAL OFFENSE CASE, THE INTERVIEW WAS CONDUCTED BY A PRIVATE PARTY AND WAS DISCOVERABLE ONLY IF IT CONSTITUTED BRADY (EXCULPATORY) MATERIAL, THE JUDGE DID NOT VIEW THE TAPE TO DETERMINE WHETHER IT WAS BRADY MATERIAL (FOURTH DEPT))/JUDGES (CRIMINAL LAW, EVIDENCE, PROHIBITION, THE JUDGE DID NOT HAVE THE AUTHORITY TO GRANT DEFENSE COUNSEL’S REQUEST FOR A VIDEOTAPE OF AN INTERVIEW OF THE CHILD (ALLEGED) VICTIM IN THIS SEXUAL OFFENSE CASE, THE INTERVIEW WAS CONDUCTED BY A PRIVATE PARTY AND WAS DISCOVERABLE ONLY IF IT CONSTITUTED BRADY (EXCULPATORY) MATERIAL, THE JUDGE DID NOT VIEW THE TAPE TO DETERMINE WHETHER IT WAS BRADY MATERIAL (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, JUDGES, PROHIBITION, HE JUDGE DID NOT HAVE THE AUTHORITY TO GRANT DEFENSE COUNSEL’S REQUEST FOR A VIDEOTAPE OF AN INTERVIEW OF THE CHILD (ALLEGED) VICTIM IN THIS SEXUAL OFFENSE CASE, THE INTERVIEW WAS CONDUCTED BY A PRIVATE PARTY AND WAS DISCOVERABLE ONLY IF IT CONSTITUTED BRADY (EXCULPATORY) MATERIAL, THE JUDGE DID NOT VIEW THE TAPE TO DETERMINE WHETHER IT WAS BRADY MATERIAL (FOURTH DEPT))/BRADY MATERIAL (CRIMINAL LAW, JUDGES, PROHIBITION, HE JUDGE DID NOT HAVE THE AUTHORITY TO GRANT DEFENSE COUNSEL’S REQUEST FOR A VIDEOTAPE OF AN INTERVIEW OF THE CHILD (ALLEGED) VICTIM IN THIS SEXUAL OFFENSE CASE, THE INTERVIEW WAS CONDUCTED BY A PRIVATE PARTY AND WAS DISCOVERABLE ONLY IF IT CONSTITUTED BRADY (EXCULPATORY) MATERIAL, THE JUDGE DID NOT VIEW THE TAPE TO DETERMINE WHETHER IT WAS BRADY MATERIAL (FOURTH DEPT))/PROHIBITION (JUDGES, CRIMINAL LAW, EVIDENCE, THE JUDGE DID NOT HAVE THE AUTHORITY TO GRANT DEFENSE COUNSEL’S REQUEST FOR A VIDEOTAPE OF AN INTERVIEW OF THE CHILD (ALLEGED) VICTIM IN THIS SEXUAL OFFENSE CASE, THE INTERVIEW WAS CONDUCTED BY A PRIVATE PARTY AND WAS DISCOVERABLE ONLY IF IT CONSTITUTED BRADY (EXCULPATORY) MATERIAL, THE JUDGE DID NOT VIEW THE TAPE TO DETERMINE WHETHER IT WAS BRADY MATERIAL (FOURTH DEPT))

April 27, 2018

Criminal Law, Judges

SENTENCING JUDGE DID NOT HAVE THE AUTHORITY TO ASSURE DEFENDANT OF ADMISSION INTO THE SHOCK PROGRAM, DEFENDANT’S PLEA VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined the sentencing court did not have the authority to promise defendant would go to “shock camp” and defendant had relied on the judge’s promise when he pled guilty:

The record establishes that the court believed it had the authority to grant defendant admission into a shock incarceration program and that it made such admission a condition of defendant’s guilty plea. At sentencing, the court acted in accordance with its perceived authority and the plea agreement by imposing a term of incarceration of 1½ to 3 years “with shock camp.” There is no dispute that defendant was not admitted into a shock incarceration program.

We agree with defendant that the court had no authority to assure him of admission into a shock incarceration program or to impose such as part of the sentence … . Inasmuch as the record establishes that defendant, in accepting the plea, relied on a promise of the court that could not, as a matter of law, be honored, defendant is entitled to vacatur of his guilty plea … . People v Smith, 2018 NY Slip Op 03025, Fourth Dept 4-27-18

CRIMINAL LAW (SENTENCING JUDGE DID NOT HAVE THE AUTHORITY TO ASSURE DEFENDANT OF ADMISSION INTO THE SHOCK PROGRAM, DEFENDANT’S PLEA VACATED (FOURTH DEPT))/JUDGES (CRIMINAL LAW, SENTENCING JUDGE DID NOT HAVE THE AUTHORITY TO ASSURE DEFENDANT OF ADMISSION INTO THE SHOCK PROGRAM, DEFENDANT’S PLEA VACATED (FOURTH DEPT))/SENTENCING (SENTENCING JUDGE DID NOT HAVE THE AUTHORITY TO ASSURE DEFENDANT OF ADMISSION INTO THE SHOCK PROGRAM, DEFENDANT’S PLEA VACATED (FOURTH DEPT))/SHOCK CAMP (CRIMINAL LAW, SENTENCING JUDGE DID NOT HAVE THE AUTHORITY TO ASSURE DEFENDANT OF ADMISSION INTO THE SHOCK PROGRAM, DEFENDANT’S PLEA VACATED (FOURTH DEPT))

April 27, 2018

Criminal Law, Judges

JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL BY ASKING QUESTIONS OF WITNESSES AND INTERRUPTING CROSS-EXAMINATION (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the judge deprived defendant of a fair trial by asking questions of witnesses and interrupting cross-examination:

The principle restraining the court’s discretion is that a trial judge’s “function is to protect the record, not to make it” (… . Indeed, when the trial judge interjects often and indulges in an extended questioning of witnesses, even where those questions would be proper if they came from trial counsel, the trial judge’s participation presents significant risks of prejudicial unfairness … . Accordingly, while a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial, the court may not take on “the function or appearance of an advocate” … .

Here, the Supreme Court interjected itself into the questioning of witnesses more than 50 times, asking more than 400 questions. The court elicited step-by-step details from several officers regarding their observations and actions during their apprehension of the defendant. In addition, the court elicited and assisted in developing facts damaging to the defense on direct examination of the People’s witnesses, bolstering the witnesses’ credibility. The court also interrupted cross-examination and generally created the impression that it was an advocate on behalf of the People. People v Hinds, 2018 NY Slip Op 02804, Second Dept 4-25-18

CRIMINAL LAW (JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL BY ASKING QUESTIONS OF WITNESSES AND INTERRUPTING CROSS-EXAMINATION (SECOND DEPT))/JUDGES (CRIMINAL LAW, JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL BY ASKING QUESTIONS OF WITNESSES AND INTERRUPTING CROSS-EXAMINATION (SECOND DEPT))

April 25, 2018

Civil Procedure, Foreclosure, Judges

HOMEOWNER WAIVED THE DEFENSE OF LACK OF PERSONAL JURISDICTION, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE FORECLOSURE ACTION ON THAT GROUND (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure proceeding, determined the homeowner had waived the defense of lack of personal jurisdiction and therefore the judge erred by, sua sponte, dismissing the complaint on that ground:

The Supreme Court erred in sua sponte raising and considering the defense of lack of personal jurisdiction. The homeowner waived this defense by failing to move to dismiss the complaint on this ground within 60 days of serving his answer … . As the homeowner waived this defense, it was error for the court, sua sponte, to direct dismissal of the complaint on this basis … .

Since, in the order appealed from, the plaintiff’s motion, inter alia, for summary judgment on the complaint and for an order of reference was, in effect, denied as academic in light of the Supreme Court’s directing dismissal of the complaint, we remit the matter to the Supreme Court, Queens County, for a determination of the plaintiff’s motion on the merits … . Wells Fargo Bank, N.A. v Cajas, 2018 NY Slip Op 02159, Second Dept 3-28-18

FORECLOSURE (HOMEOWNER WAIVED THE DEFENSE OF LACK OF PERSONAL JURISDICTION, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE FORECLOSURE ACTION ON THAT GROUND (SECOND DEPT))/CIVIL PROCEDURE (DEFENSE OF LACK OF PERSONAL JURISDICTION, FORECLOSURE, HOMEOWNER WAIVED THE DEFENSE OF LACK OF PERSONAL JURISDICTION, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE FORECLOSURE ACTION ON THAT GROUND (SECOND DEPT))/JURISDICTION, LACK OF PERSONAL (JUDGES, FORECLOSURE, HOMEOWNER WAIVED THE DEFENSE OF LACK OF PERSONAL JURISDICTION, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE FORECLOSURE ACTION ON THAT GROUND (SECOND DEPT))/JUDGES (SUA SPONTE DISMISSAL, FORECLOSURE, HOMEOWNER WAIVED THE DEFENSE OF LACK OF PERSONAL JURISDICTION, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE FORECLOSURE ACTION ON THAT GROUND (SECOND DEPT))/SUA SPONTE (LACK OF PERSONAL JURISDICTION, FORECLOSURE, HOMEOWNER WAIVED THE DEFENSE OF LACK OF PERSONAL JURISDICTION, JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE FORECLOSURE ACTION ON THAT GROUND (SECOND DEPT))

March 28, 2018

Civil Procedure, Judges

SUA SPONTE DISMISSAL OF PETITION WAS AN ABUSE OF DISCRETION, LACK OF STANDING IS NOT A JURISDICTIONAL DEFECT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, noted that lack of standing is not a jurisdictional defect and held that the court’s sua sponte dismissal of an Article 78/declaratory judgment petition was an abuse of discretion:

We agree with petitioners that the court improvidently exercised its discretion in sua sponte dismissing the petition. “[U]se of the [sua sponte] power of dismissal must be restricted to the most extraordinary circumstances”… . No such extraordinary circumstances are present in this case. Contrary to the court’s determination, “a party’s lack of standing does not constitute a jurisdictional defect and does not warrant sua sponte dismissal of a complaint” … . We therefore reverse the judgment insofar as appealed from in the exercise of discretion and reinstate the petition … . Matter of Associated Gen. Contrs. of NYS, LLC v New York State Thruway Auth., 2018 NY Slip Op 02075, Fourth Dept 3-23-18

CIVIL PROCEDURE (SUA SPONTE DISMISSAL OF PETITION WAS AN ABUSE OF DISCRETION, LACK OF STANDING IS NOT A JURISDICTIONAL DEFECT (FOURTH DEPT))/STANDING (CIVIL PROCEDURE, SUA SPONTE DISMISSAL OF PETITION WAS AN ABUSE OF DISCRETION, LACK OF STANDING IS NOT A JURISDICTIONAL DEFECT (FOURTH DEPT))/JUDGES (SUA SPONTE DISMISSAL OF PETITION WAS AN ABUSE OF DISCRETION, LACK OF STANDING IS NOT A JURISDICTIONAL DEFECT (FOURTH DEPT))/SUA SPONTE (SUA SPONTE DISMISSAL OF PETITION WAS AN ABUSE OF DISCRETION, LACK OF STANDING IS NOT A JURISDICTIONAL DEFECT (FOURTH DEPT))

March 23, 2018

Criminal Law, Judges, Sex Offender Registration Act (SORA)

DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, remitted the matter for a new SORA hearing because the court cut off the defendant’s testimony and arguments in support of a downward departure:

“A court determining a defendant’s risk level under the Sex Offender Registration Act (hereinafter SORA) may not downwardly depart from the presumptive risk level unless the defendant first identifies and proves by a preponderance of the evidence the facts in support of a mitigating factor of a kind, or to a degree, that is not otherwise adequately taken into account by the SORA Guidelines'” … .

In this case, during the SORA hearing, the Supreme Court improperly, sua sponte, curtailed the defendant’s testimony and arguments in support of, inter alia, his request for a downward departure. People v Williams, 2018 NY Slip Op 01629, Second Dept 3-14-18

CRIMINAL LAW (SORA, DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT))/JUDGES (CRIMINAL LAW, SORA, DEFENDANT’S TESTIMONY AND ARGUMENT IN SUPPORT OF A DOWNWARD DEPARTURE IMPROPERLY CUT OFF, NEW HEARING ORDERED (SECOND DEPT))

March 14, 2018

Evidence, Foreclosure, Judges

EVIDENCE OF STANDING DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS HEARSAY EXCEPTION, SUPREME COURT SHOULD NOT HAVE DONE INTERNET RESEARCH TO MAKE A SUA SPONTE FINDING THAT THE BANK HAD STANDING (SECOND DEPT).

The Second Department determined plaintiff bank’s (OneWest’s) motion for summary judgment should have been denied because standing was not demonstrated with evidence meeting the business records hearsay exception requirements. The Second Department criticized Supreme Court for doing its own Internet research and making a sua sponte finding that OneWest had standing:

In support of its motion, OneWest submitted the affidavit of Jillian Thrasher, an employee of its loan servicer, who averred that OneWest was the holder of the note, which is endorsed in blank, and assignee of the mortgage at the time the action was commenced. However, OneWest failed to demonstrate the admissibility of the records that Thrasher relied upon under the business records exception to the hearsay rule (see CPLR 4518[a]), since she did not attest that she was personally familiar with OneWest’s record-keeping practices and procedures … . Insofar as the Supreme Court reached its determination that OneWest had standing by, sua sponte, “independently tak[ing] judicial notice of the FDIC website,” this Court has repeatedly cautioned against such independent Internet investigations, especially when conducted without providing notice or an opportunity for the parties to be heard … . OneWest Bank, FSB v Berino, 2018 NY Slip Op 01318, Second Dept 2-28-18

FORECLOSURE (EVIDENCE OF STANDING DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS HEARSAY EXCEPTION, SUPREME COURT SHOULD NOT HAVE DONE INTERNET RESEARCH TO MAKE A SUA SPONTE FINDING THAT THE BANK HAD STANDING (SECOND DEPT))/EVIDENCE (FORECLOSURE, EVIDENCE OF STANDING DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS HEARSAY EXCEPTION, SUPREME COURT SHOULD NOT HAVE DONE INTERNET RESEARCH TO MAKE A SUA SPONTE FINDING THAT THE BANK HAD STANDING (SECOND DEPT))/CPLR 4518 (EVIDENCE OF STANDING DID NOT MEET THE REQUIREMENTS OF THE BUSINESS RECORDS HEARSAY EXCEPTION, SUPREME COURT SHOULD NOT HAVE DONE INTERNET RESEARCH TO MAKE A SUA SPONTE FINDING THAT THE BANK HAD STANDING (SECOND DEPT))/SUA SPONTE (INTERNET RESEARCH, SUPREME COURT SHOULD NOT HAVE DONE INTERNET RESEARCH TO MAKE A SUA SPONTE FINDING THAT THE BANK HAD STANDING (SECOND DEPT))/INTERNET RESEARCH BY COURT (SUPREME COURT SHOULD NOT HAVE DONE INTERNET RESEARCH TO MAKE A SUA SPONTE FINDING THAT THE BANK HAD STANDING (SECOND DEPT))

February 28, 2018

Civil Procedure, Family Law, Judges

SUPREME COURT, SUA SPONTE, SET ASIDE AN IN-COURT STIPULATION OF SETTLEMENT IN A DIVORCE ACTION, NEITHER PARTY REQUESTED THAT RELIEF, STIPULATION REINSTATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the in-court stipulation of settlement in a divorce action should not have been set aside. Neither party requested that the stipulation be set aside:

The defendant contends that the Supreme Court erred in, sua sponte, setting aside the stipulation. We agree. Neither the decedent nor the defendant requested that the court set aside the stipulation … . Moreover, stipulations of settlement are favored by the courts and not lightly cast aside. “Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation” … . Here, the court did not conclude that any of these grounds were present. Estate of Michael Reid v Reid, 2018 NY Slip Op 01044, Second Dept 2-14-18

FAMILY LAW (STIPULATION OF SETTLEMENT, SUPREME COURT, SUA SPONTE, SET ASIDE AN IN-COURT STIPULATION OF SETTLEMENT IN A DIVORCE ACTION, NEITHER PARTY REQUESTED THAT RELIEF, STIPULATION REINSTATED (SECOND DEPT))/STIPULATIONS (FAMILY LAW, SUPREME COURT, SUA SPONTE, SET ASIDE AN IN-COURT STIPULATION OF SETTLEMENT IN A DIVORCE ACTION, NEITHER PARTY REQUESTED THAT RELIEF, STIPULATION REINSTATED (SECOND DEPT))/CIVIL PROCEDURE (SUA SPONTE, FAMILY LAW, STIPULATIONS, SUPREME COURT, SUA SPONTE, SET ASIDE AN IN-COURT STIPULATION OF SETTLEMENT IN A DIVORCE ACTION, NEITHER PARTY REQUESTED THAT RELIEF, STIPULATION REINSTATED (SECOND DEPT))/SUA SPONTE (STIPULATIONS, FAMILIY LAW, SUPREME COURT, SUA SPONTE, SET ASIDE AN IN-COURT STIPULATION OF SETTLEMENT IN A DIVORCE ACTION, NEITHER PARTY REQUESTED THAT RELIEF, STIPULATION REINSTATED (SECOND DEPT))

February 14, 2018

Civil Procedure, Judges, Real Property Tax Law

MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT).

The Second Department determined Supreme Court properly denied petitioner’s motion to discontinue the action which challenged the tax assessments of several lots. Supreme Court abused its discretion, however, when it, sua sponte, directed merger of several parcels into a single tax lot:

A motion for leave to discontinue an action is addressed to the sound discretion of the court … , and generally should be granted unless the discontinuance would prejudice a substantial right of another party, circumvent an order of the court, avoid the consequences of a potentially adverse determination, or produce other improper results … .

In this case, the Supreme Court providently exercised its discretion in denying the petitioner’s motion, since the record supports the conclusion that the requested discontinuance would prejudice the respondents’ ability to defend against the proceeding … , and was improperly sought to avoid the consequences of a potentially adverse determination and to obtain an improper result.

However, the Supreme Court improvidently exercised its discretion by, sua sponte, directing that the six parcels be merged into a single tax lot. “Generally, a court may, in its discretion, grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party'” .. . Here, the court failed to abide by this principle. None of the parties sought merger of the parcels or similar relief, merger of all the parcels at issue into one tax lot is not supported by the record, and merger of all the parcels could be potentially prejudicial to the petitioner. Matter of Blauvelt Mini-Mall, Inc. v Town of Orangetown, 2018 NY Slip Op 01051, Second Dept 2-14-18

CIVIL PROCEDURE (MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT))/DISCONTINUANCE (MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT))/SUA SPONTE (MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT))/REAL PROPERTY TAX LAW (MOTION TO DISCONTINUE THIS REAL PROPERTY TAX ASSESSMENT CHALLENGE PROPERLY DENIED, CRITERIA EXPLAINED, SUA SPONTE MERGER OF PARCELS, RELIEF NOT REQUESTED BY THE PARTIES, WAS AN ABUSE OF DISCRETION (SECOND DEPT))

February 14, 2018

Civil Procedure, Judges

PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION PROPERLY DENIED, BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT).

The Second Department, modifying Supreme Court, determined defendant’s motion for a preliminary injunction was properly denied, but Supreme Court should not have dismissed the complaint sua sponte. The underlying action sought a declaratory judgment that plaintiff was the owner of shares of stock allocated to a cooperative apartment. The plaintiff moved for a preliminary injunction in the pending holdover proceeding:

To obtain a preliminary injunction, the moving party must demonstrate (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) that the equities balance in his or her favor (see CPLR 6301…). “The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court” … . Here, the plaintiff did not sustain his burden of establishing a likelihood of success on the merits.

However, inasmuch as there was neither notice to the parties by the Supreme Court nor an application by the defendant seeking dismissal, it was error for the court to, sua sponte, direct the dismissal of the complaint in this action … . Gonzalez v 231 Maujer St., HDFC, 2018 NY Slip Op 00412, Second Dept 1-24-18

CIVIL PROCEDURE (SUA SPONTE DISMISSAL OF COMPLAINT, PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION PROPERLY DENIED, BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))/SUA SPONTE (DISMISSAL OF COMPLAINT, PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION PROPERLY DENIED, BUT COMPLAINT SHOULD NOT HAVE BEEN DISMISSED SUA SPONTE (SECOND DEPT))

January 24, 2018