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TO BE ENTITLED TO A CHANGE OF VENUE AS OF RIGHT, THE DEMAND MUST BE SERVED WITH THE ANSWER OR BEFORE THE ANSWER IS SERVED; TO BE ENTITLED TO A DISCRETIONAY CHANGE OF VENUE, THE MOTION MUST BE MADE PROMPTLY AFTER LEARNING OF THE GROUND FOR THE CHANGE; HERE THE MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to change venue should not have been granted. The summons indicated plaintiff’s residence was the basis of venue in Kings County.  Defendants did not serve a demand to change venue with their answer or before the answer was served. The motion to change venue was based upon plaintiff’s deposition testimony that he lived at an address in Richmond County. The defendants were not entitled to a change of venue as of right (because the demand was not served with the answer or before the answer was served), and the defendants were not entitled to a discretionary change of venue because the motion to change venue was not made promptly after plaintiff’s deposition testimony:

A demand to change venue based upon the designation of an improper county must be “served with the answer or before the answer is served” (CPLR 511[a]). Here, since no demand to change venue was served with the answer or before the answer had been served, that branch of the defendants’ motion which was to change venue on the ground that the county designated was improper (see CPLR 510[1]) was untimely (see CPLR 511[a] …). Thus, the defendants were not entitled to change venue as of right, and their motion became one addressed to the Supreme Court’s discretion … .

Contrary to the defendants’ contention, the Supreme Court improvidently exercised its discretion in granting that branch of their motion which was to change venue, since the defendants failed to demonstrate that they moved promptly for a change of venue after the plaintiff testified at his deposition that he lived at an address in Richmond County … . Aguilar v Reback, 2024 NY Slip Op 04444, Second Dept 9-18-24

Practice Point: For a change of venue as of right the demand must be served with the answer or before the answer is served.

Practice Point: For a discretionary change of venue, the motion must be made promptly after learning of the ground for the change.

 

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THE RECORD DID NOT DEMONSTRATE THE PARENTS COULD NOT COMMUNICATE ABOUT THE NEEDS OF THE CHILD AND THEREFORE DID NOT SUPPORT AWARDING SOLE CUSTODY TO FATHER; THE JUDGE SHOULD NOT HAVE LEFT IT UP TO THE PARTIES TO CRAFT A PARENTING-TIME SCHEDULE; A CHILD’S TESTIMONY IN A LINCOLN HEARING HAS NO INDEPENDENT EVIDENTIARY VALUE AND MUST BE KEPT CONFIDENTIAL (THIRD DEPT). ​

The Third Department, reversing Family Court, determined the record did not support sole legal custody of the child by father, and the judge’s delegating the arrangement of parenting time for mother was improper. In addition, the Third Department noted that statements made by the child to the court in a Lincoln hearing must remain confidential:

… [T]he record is devoid of any indication that the parties are unable to effectively communicate to meet the child’s needs, or that joint legal custody has been otherwise rendered unfeasible or inappropriate … . As the record lacks support for granting the father sole legal custody, we must reverse that portion of the amended order … . …

… [P]arenting time with a noncustodial parent is presumed to be in a child’s best interests, and Family Court is required to craft a schedule that allows that parent frequent and regular access to the child, unless it finds that doing so would be inimical to the child’s welfare … . The court made no such finding here. Instead, Family Court improperly delegated the parenting time determination to the father, and this error requires reversal … .

… [W]e take this opportunity to remind Family Court that statements made by a child during a Lincoln hearing carry no independent evidentiary value …, and that such statements must remain confidential to protect children in custody proceedings “from having to openly choose between parents or openly divulging intimate details of their respective parent/child relationships” … . … [I]nformation shared by a child during a Lincoln hearing may serve “to corroborate other evidence adduced at a fact-finding hearing or to ascertain a child’s thoughts and feelings regarding the crafting of a custodial arrangement, [but] such considerations must remain silent to ensure that the child’s right to confidentiality is protected” … . Matter of C.M. v Z.N., 2024 NY Slip Op 04427, Third Dept 9-12-24

Practice Point: Here the court noted there was no proof the parents could not communicate to meet the child’s needs and, therefore, the record did not support the award of sole custody to father.

Practice Point: A parenting-time schedule must be crafted by the judge and not left up to the agreement of the parties.

Practice Point: A child’s testimony in a Lincoln hearing has no independent evidentiary value and must not be revealed.

 

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PLAINTFF’S MOTION TO STRIKE DEFENDANTS’ ANSWER FOR SPOLIATION OF EVIDENCE IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN CONSIDERED BY THE MOTION COURT BEFORE GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined the motion court should have first considered plaintiff’s (decedent’s) motion to strike defendants’ answer (for spoliation of evidence) before considering defendants’ motion for summary judgment (which was granted). Decedent alleged there was video footage showing the slip and fall which was overwritten 72 hours after the fall:

“Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126” … . The Supreme Court has broad discretion in determining what, if any, sanction would be imposed for spoliation of evidence … . “The sanction of dismissal of a pleading may be imposed even absent willful and contumacious conduct if a party has been so prejudiced that dismissal is necessary as a matter of fundamental fairness” …  “However, a less severe sanction or no sanction is appropriate where the missing evidence does not deprive the moving party of the ability to establish his or her case or defense” … .

A defendant whose answer is stricken is “deemed to admit all traversable allegations in the complaint, including the basic allegation of liability” … , and summary judgment is warranted in favor of the plaintiff on the issue of liability upon the appropriate motion … .

Here, since the decedent’s motion pursuant to CPLR 3126 to strike the defendants’ answer or, in the alternative, for an adverse inference instruction at trial for spoliation of evidence sought sanctions that would impact the defendants’ ability to establish, prima facie, that they were entitled to judgment as a matter of law on the issue of liability, the Supreme Court should have considered the merits of the decedent’s motion before rendering a determination on the issue of liability on the defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them … . Hudesman v Dawson Holding Co., 2024 NY Slip Op 04307, Second Dept 8-28-24

Practice Point: Where a plaintiff’s motion can affect a defendant’s ability to defend an action (here a motion to strike the answer for spoliation of evidence), that motion should be considered first, before considering a defendant’s motion for summary judgment.

 

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THE MOTION COURT IN THIS REAR-END TRAFFIC-ACCIDENT CASE SHOULD HAVE CONSIDERED THE CERTIFIED BUT UNSIGNED DEPOSITION TRANSCRIPTS SUBMITTED BY DEFENDANT; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT AND DISMISSAL OF THE CROSS-CLAIMS (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the motion court should have considered the deposition transcripts, which were certified but unsigned, and should have granted defendant driver’s (Jara Mejia’s) motions for summary judgment and dismissal of the cross-claims. Jara Mejia’s car was stopped when it was struck from behind:

“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” … . In support of his motion, Jara Mejia submitted, inter alia, a transcript of his deposition testimony and transcripts of the deposition testimony of the plaintiffs, Tsering, and Cruz Arce. Contrary to the Supreme Court’s determination, Jara Mejia’s unsigned but certified deposition transcript was admissible, “since the transcript was submitted by the party deponent himself and, therefore, was adopted as accurate by the deponent” … . In addition, while the remaining deposition transcripts were also unsigned, they were certified and their accuracy was not challenged … . Thus, the deposition transcripts were admissible and should have been considered by the court on Jara Mejia’s motion. Gironza v Macedonio, 2024 NY Slip Op 04306, Second Dept 8-28-24

Practice Point: Certified but unsigned deposition transcripts are admissible in support of summary judgment when submitted by the party deponent himself.

Practice Point: Certified but unsigned deposition transcripts are admissible in support of summary judgment when their accuracy is not challenged.

 

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THE USUAL PROHIBITIONS RE: VACATING ORDERS ISSUED OPON A PARTY’S DEFAULT DO NOT APPLY IN CHILD CUSTODY MATTERS; TO MODIFY CUSTODY, A FULL AND PLENARY HEARING IS NECESSARY; IF A PARTY DOES NOT APPEAR IN A MODIFICATION PROCEEDING, AN INQUEST SHOULD BE HELD TO CREATE A RECORD (SECOND DEPT).

The Second Department, reversing Family Court, noted that courts should be more willing to vacate orders issued upon a party’s default in child custody matters. Mother had defaulted and custody was modified awarding custody to father. Mother’s motion to vacate the modification order should have been granted:

Although the determination of whether to relieve a party of an order entered upon his or her default is a matter left to the sound discretion of the Family Court … , “the law favors resolution on the merits in child custody proceedings” … . “Thus, the ‘general rule with respect to opening defaults in civil actions is not to be rigorously applied to cases involving child custody'” … .

Moreover, modification of an existing order of custody and parental access may be made only “‘upon a showing that there has been a subsequent change [in] circumstances such that modification is required to protect the best interests of the child'” … . “‘A custody determination, whether made upon the default of a party or not, must always have a sound and substantial basis in the record'” … . “Generally, the court’s determination should be made only after a full and plenary hearing and inquiry, or, where a party failed to appear, after an inquest” … . Matter of Paez v Bambauer, 2024 NY Slip Op 04205, Second Dept 8-14-24

Practice Point: Child custody should not be modified without a full and plenary hearing, or an inquest (if a party fails to appear).

Practice Point: The rigorous rules re: vacating an order issued upon a party’s default are relaxed in child custody matters.

 

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​HERE THE DEFENDANTS DID NOT PRESENT A REASONABLE EXCUSE FOR FAILING TO APPEAR OR ANSWER AND DID NOT DEMONSTRATE THE EXISTENCE OF A POTENTIALLY MERITORIOUS DEFENSE; THE JUDGE SHOULD NOT HAVE, SUA SPONTE, GRANTED DEFENDANTS AN EXTENSION OF TIME TO ANSWER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, granted defendants an extension of time to answer the complaint in the face of plaintiff’s cross-motion to enter a default judgment, The defendants did not demonstrate a reasonable excuse for failing to appear or answer or the existence of a potentially meritorious defense:

… [I]n support of that branch of the plaintiff’s cross-motion which was for leave to enter a default judgment on the issue of liability against the defendants, the plaintiff submitted proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendants’ default in answering or appearing … . The defendants’ motion, which was, in effect, pursuant to CPLR 3211(a)(4), was untimely, since it was made after the time to file an answer had lapsed … . By not opposing the facially adequate branch of the plaintiff’s cross-motion which for leave to enter a default judgment, in form or in effect, the defendants did not meet their burden of establishing a reasonable excuse for their default and demonstrating the existence of a potentially meritorious defense to the action. Accordingly, that branch of the plaintiff’s cross-motion which was for leave to enter a default judgment on the issue of liability against the defendants should have been granted … , and the Supreme Court erred by, sua sponte, granting the defendants an extension of time to answer the complaint … . Digital Direct & More, Inc. v Dialectic Distrib., LLC, 2024 NY Slip Op 04196, Second Dept  8-14-24

Practice Point: Here is another example of the appellate courts cracking down on “sua sponte” rulings on motions which have no support in the record.

 

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TO, SUA SPONTE, DECIDE BRANCHES OF A MOTION AND CROSS-MOTION ON A GROUND NOT RAISED BY THE PARTIES DEPRIVED PLAIINTIFF OF THE OPPORTUNITY TO REFUTE THE JUDGE’S DETERMINATION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this foreclosure action, determined the judge should not have decided branches of a motion and cross-motion on a ground not raised by the parties, i.e. “in the interest of justice” on the ground the action was commenced “when foreclosures were stayed due to [the[ Covid-19 pandemic:”

“The lack of notice and opportunity to be heard implicates the fundamental issue of fairness that is the cornerstone of due process” … . As the plaintiff correctly contends, the Supreme Court improperly determined the subject branches of the parties’ motion and cross-motion on the ground that the action was commenced when “foreclosures were stayed due to [the] Covid-19 pandemic.” Sino [defendant] did not argue in support of the cross-motion that the plaintiff improperly commenced the action during any COVID-19-related stay or that it was prejudiced because the action was commenced during any COVID-19-related stay. Thus, the plaintiff was prejudiced, since it was “never afforded the opportunity to present evidence refuting the court’s sua sponte determination” … . Accordingly, the court should not have determined the subject branches of the motion and cross-motion on a ground that was never raised by the parties … . Austin 26 Dental Group, PLLC v Sino Northeast Metals (U.S.A.), Inc., 2024 NY Slip Op 04187, Second Dept 8-14-24

Practice Point: Judges cannot decide motions on a ground not raised by the parties.

 

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HERE TWO DISSENTERS ARGUED THE JUDGE DID NOT MAKE THE REQUIRED FINDINGS THAT THE PROSECUTOR’S RACE-NEUTRAL REASONS FOR PEREMPTORY CHALLENGES WERE NON-PRETEXTUAL (THIRD DEPT).

The Third Department, over a two-justice dissent, determined County Court properly denied Batson challenges to the prosecutor’s peremptory challenges:

From the dissent:

Although trial courts are permitted to implicitly determine that the race-neutral explanations offered by the prosecutor are not pretextual … , we find that the language utilized by County Court cannot be construed as making an implicit determination. County Court did not state that it believed the race-neutral reasons offered by the prosecutor; instead, the court indicated that it “believe[d] there’s a race-neutral reason . . . which would permit a . . . peremptory challenge by the People, not subject to Batson.” This language demonstrates that the court only considered whether the People had proffered a race-neutral reason and not whether the race-neutral reason was pretextual as required under the third step of the Batson inquiry, despite defendant’s arguments to this effect … . People v Morgan, 2024 NY Slip Op 04165, Third Dept 8-8-24

Practice Point: As part of a Batson juror challenge, the judge must determine whether the race-neutral reasons for a peremptory challenge are genuine (non-pretextual). Here two dissenters argued the judge did not make that determination.​

 

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THE JUDGE SHOULD HAVE DECLARED A MISTRIAL AFTER THE JURY’S REPEATED COMMUNICATIONS EXPLAINING THEY COULD NOT REACH A UNANIMOUS VERDICT; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the judge should have ordered a mistrial after the jury’s repeated communications stating they could not reach a unanimous verdict:

The jury sent its third note regarding deadlock on the fourth day of deliberations, which not only stated that the jurors were “hopelessly deadlocked,” but also that “[a] unanimous decision would only be able to be achieved by the abandonment” of the jurors’ “firm . . . convictions,” and that “any change in their decisions would be untrue and unjust” … . Thus, the jury unequivocally informed the court that any unanimous verdict would be the result of jurors abandoning their genuine beliefs about the defendant’s guilt or innocence in order to achieve a unanimous verdict, which demonstrated that it would have served no purpose to provide additional instructions to the jury to continue deliberating … . Moreover, portions of the court’s instructions delivered after that note were potentially coercive, including the court’s statements that “some of you are locked into your positions and you’re fixed in those positions and inflexible and that’s contrary to what jurors have to do during jury deliberations,” and that “when you were selected as jurors you promised me that you would deliberate and discuss your views with your other jurors, so if you refuse to deliberate or close off your mind then you’re violating your promise and your oath to me” … . Notably, the jury returned a unanimous verdict later on the same day the court gave those instructions. Thus, under the circumstances, the court should have discharged the jury and declared a mistrial. People v Calixte, 2024 NY Slip Op 04079, Second Dept 7-31-24

Practice Point: Here the jury sent out three articulate and detailed notes explaining they could not reach a unanimous verdict. The judge should have declared a mistrial.

 

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A WITNESS IS NOT UNAVAILABLE TO TESTIFY AT A TRIAL BASED UPON THE FEAR OF COMMITTING PERJURY DURING THAT TRIAL; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing the judgment and ordering a new trial, determined a witness was not be unavailable to testify at the trial based upon her fear she would commit perjury at the trial:

“A witness may not claim the privilege of the [F]ifth [A]mendment out of fear that he [or she] will be prosecuted for perjury for what he [or she] is about to say. The shield against self-incrimination in such a situation is to testify truthfully, not to refuse to testify on the basis that the witness may be prosecuted for a lie not yet told” … . “Fear of a perjury prosecution can typically form a valid basis for invoking the Fifth Amendment only where the risk of prosecution is for perjury in the witness’ past testimony” … .

“[T]he court focuses inquiry on what a truthful answer might disclose, rather than on what information is expected by the questioner” … . Simply put, the Fifth Amendment “does not permit a witness to invoke the privilege on the ground that he [or she] anticipates committing perjury sometime in the future” … . There is “no doctrine of ‘anticipatory perjury’ ” … . * * *

We … conclude that the court erred in declaring the victim unavailable and allowing her testimony from the first trial to be read to the jury at the retrial. Inasmuch as the victim was the only person who identified defendant as the person who shot her, we cannot conclude that the evidence of defendant’s guilt is overwhelming, and therefore the error cannot be deemed harmless … . People v Smith, 2024 NY Slip Op 03973, Fourth Dept 7-26-24

Practice Point: The Fifth Amendment does not permit a witness to invoke the self-incrimination privilege on the ground the witness anticipates committing perjury in the future.

 

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