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A JUDGE CANNOT ENTER A JUDGMENT WHICH DOES NOT CONFORM TO THE ORDER; HERE THE JUDGMENT ELIMINATED MILLIONS OF DOLLARS IN DAMAGES AND EXTINGUISHED A DEFENDANT’S LIABILITY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the judge did not have the power to, sua sponte, enter an judgment which did not conform to its order. The judgment eliminated millions of dollars in damages and extinguished liability with respect to a defendant:

“A written order [or judgment] must conform strictly to the court’s decision, and in the event of an inconsistency between a judgment and a decision or order upon which it is based, the decision or order controls” … . A court exceeds its authority when it sua sponte vacates its prior order, as it “has no revisory or appellate jurisdiction, sua sponte, to vacate its own order” … . Here, the court exceeded its authority in entering the judgment, which effectively reversed or vacated its prior confirmation order without notice. Accordingly, the court is directed to enter a revised judgment that conforms to the confirmation order with respect to damages and liability. Magna Equities II, LLC v Writ Media Group Inc., 2023 NY Slip Op 05320, First Dept 10-19-23

Practice Point: A judge cannot effectively vacate a prior order by entering a judgment which does not conform to the order.

 

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FAMILY COURT DID NOT MAKE THE REQUIRED “SEARCHING INQUIRY” RE: WHETHER FATHER WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING HIS RIGHT TO COUNSEL (FIRST DEPT). ​

The First Department, reversing Family Court, held the judge did not make the required “searching inquiry” to determine whether father was knowingly, intelligently and voluntarily waiving his right to counsel. Father had made a motion to vacate a final order of protection:

… [T]he court failed to conduct the requisite “searching inquiry” to ensure that the father’s waiver of his right to counsel was “knowing, intelligent, and voluntary” … . While the court advised both parties that they had the right to be represented by counsel, could seek an adjournment to speak to one, and that one might be appointed to them, the court did not question the father about his background, such as age, education, or occupation, and any prior experience of being a pro se litigant or being exposed to legal procedures … . It also did not caution the father against self-representation, detail the dangers and disadvantages of doing so, or inform him that he would have to follow the same legal rules as if he had been represented … . Thus, the court failed to evaluate the father’s competency to waive counsel and his understanding of the consequences of self-representation … . Matter of Marlene H. v Loren D.2023 NY Slip Op 05225, First Dept 10-17-23

Practice Point: The questions a judge must ask before a waiver of the right counsel will be deemed valid are concisely explained.

 

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DEFENDANT, IN THE PLEA COLLOQUY, SAID SHE ACTED IN SELF DEFENSE; AT THAT POINT THE JUDGE SHOULD HAVE MADE SURE SHE WAS AWARE SHE WAS WAIVING THE JUSTIFICATION DEFENSE (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined the judge, based on the plea colloquy, should have questioned the defendant about her waiver of her right to present a justification defense:

The trial court failed to determine defendant’s understanding and waiver of her right to present a defense of justification after defendant stated, during the plea colloquy, “I had to defend myself” and “I wasn’t just the aggressor in the situation” (see People v Muniz-Cayetano, 186 AD3d 1169, 1171-1172 [1st Dept 2020] …). The People concede that the particulars of this case are indistinguishable from those of Muniz-Cayetano and that defendant’s guilty plea should be vacated. People v Williams, 2023 NY Slip Op 05195, First Dept 10-12-23

Practice Point: Here the defendant said she acted in self defense during the plea colloquy. At that point the judge should have made sure she knew about and was waiving the justification defense.

 

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THE MAJORITY CONCLUDED THE ARGUMENT THAT DEFENSE COUNSEL SHOULD HAVE BEEN ALLOWED TO READ THE INDICTMENT TO THE JURY TO SHOW THE DISCREPANCY BETWEEN THE ALLEGATIONS OF COERCION IN THE INDICTMENT AND THE PROOF AT TRIAL WAS RENDERED MOOT BY THE DISMISSAL OF THE COERCION COUNT; THE DISSENT ARGUED THE PROHIBITION DEPRIVED DEFENDANT OF THE RIGHT TO PUT ON A DEFENSE (THIRD DEPT).

The Third Department, over a partial dissent, determined defense counsel was properly prohibited from reading the indictment to the jury. Defense counsel sought to show that the allegations of coercion in the indictment differed from the proof presented by the People. Both the majority and the dissenter agreed that the proof of coercion was legally insufficient. Therefore the majority held defendant’s argument he should have been allowed to read the indictment to the jury was rendered moot. The dissent argued the prohibition deprived defendant of his right to present a defense:

In light of our conclusion, defendant’s contention that County Court erred in declining to charge the jury with certain lesser included offenses of coercion in the first degree has been rendered moot. The same is true with respect to defendant’s assertion that he was improperly prevented from reading the indictment to the jury during his opening statement and closing argument. That is, as limited by his appellate brief, the only particular claim articulated by defendant concerning this issue is that he should have been allowed to highlight for the jury the discrepancy between the allegation listed in the indictment relative to the coercion count and the proof expected to be presented or actually presented at trial, which is the very basis upon which that count has now been dismissed. 

From the dissent:

… [D]efendant’s trial strategy hinged on showing that the People had not proven the factual allegations in the indictment, and that County Court stymied that strategy by repeatedly refusing to allow defense counsel to read the indictment to the jury. County Court’s refusal to allow defense counsel to read the indictment to the jury in his opening statement violated defendant’s statutory right to “present[ ] his view of the case” in an opening statement that highlighted what he believed would be weaknesses in the People’s proof … . People v Knapp, 2023 NY Slip Op 05168, Third Dept 10-12-23

Practice Point: Defense counsel wanted to read the indictment to the jury to show the discrepancy between the allegations of coercion and the proof presented at trial. County Court ruled defense counsel could not read the indictment to the jury. The majority held the issue was moot because the coercion count was dismissed because the evidence was deemed legally insufficient. The dissent argued the prohibition deprived defendant of his right to put on a defense.

 

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IT WAS AN ABUSE OF DISCRETION TO DENY PLAINTIFF’S MOTION TO REOPEN THE INQUEST ON DAMAGES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined it was an abuse of discretion to deny plaintiff’s motion to reopen the inquest on damages. Although the motion was untimely, there was no prejudice to the defendants:

… [T]he Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was, in effect, to reopen the inquest in order to permit the plaintiff to submit what the court had indicated was crucial evidence … . Moreover, there was no evidence that the defendants would be prejudiced … . Although the plaintiff’s motion was not made in a timely fashion, a factor which ordinarily weighs against granting such relief … , the record here reflects that the delay may have been due in part to the plaintiff’s confusion regarding the court’s directive as to how to proceed … . Commonwealth Land Title Ins. Co. v Islam, 2023 NY Slip Op 05119, Second Dept 10-11-23

Practice Point: Here plaintiff sought to reopen the inquest on damages to present crucial evidence which had been requested by the judge. Although the request was untimely, there was no prejudice to the defendants. It was an abuse of discretion to deny the motion.

 

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THE MAJORITY DETERMINED MOTHER’S PARENTAL RIGHTS WERE PROPERLY TERMINATED; MOTHER AND THE DISSENT ARGUED THE DEPARTMENT OF SOCIAL SERVICES DISCOURAGED HER FROM COMMUNICATING WITH IT WELL BEFORE THE ABANDONMENT PERIOD (SIX MONTHS BEFORE THE FILING OF THE TERMINATION PETITION) AND THE JUDGE ERRONEOUSLY PROHIBITED HER FROM PRESENTING EVIDENCE FROM BEFORE THE ABANDONMENT PERIOD (SECOND DEPT).

The Second Department, over an extensive and comprehensive dissent, determined Family Court properly terminated mother’s parental rights. The question whether a parent has abandoned a child focuses on the six months immediately prior to the filing of the petition to terminate parental rights. Mother argued that the Department of Social Services had discouraged her from communicating with the department and the court had cut off her parental access well before the statutory abandonment period. The dissent agreed with mother’s arguments and supported a new fact-finding hearing:

… [T]he mother failed to demonstrate that the petitioner prevented or discouraged her from communicating with it or with the child, or that she was otherwise unable to do so … . The mother’s contention that the petitioner prevented her from communicating with the child by suspending her parental access is without merit, as it was the Family Court that suspended the mother’s parental access with the child, not the petitioner. Further, the mother was still obligated to maintain contact with the petitioner, which had legal custody of the child, even though the court had suspended her parental access … . * * *

From the dissent:

In this proceeding to terminate the mother’s parental rights on the ground of abandonment, the mother, who had been precluded from visiting with the subject child, asserted that her conduct during the statutory abandonment period did not evince an intent to abandon the child because the petitioner had prevented and discouraged her from maintaining contact with the child and with the petitioner. The Family Court erroneously ruled that the mother could not present evidence regarding events that occurred prior to the statutory abandonment period and erroneously precluded the mother from eliciting such evidence on cross-examination of the petitioner’s witnesses and during her own testimony. The court’s incorrect ruling infringed upon the mother’s right to present evidence regarding the central issue in the proceeding. Matter of Abel J.R. (Estilia R.), 2023 NY Slip Op 05139, Second Dept 10-11-23

Practice Point: To demonstrate abandonment of a child, the proof focuses on the six months before the petition to terminate parental rights was filed. Here mother and the dissent argued the Department of Social Services discouraged her from communicating with it about the child well before the six-month abandonment period. Mother and the dissent argued the Family Court judge erred by limiting proof from prior to the abandonment period. The majority noted mother was allowed to present pre-abandonment-period evidence and that evidence did not negate the proof of abandonment.

 

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A DEFENDANT WHO MOVES TO VACATE A DEFAULT JUDGMENT FOR LACK OF PERSONAL JURISDICTION DOES NOT NEED TO DEMONSTRATE A REASONABLE EXCUSE FOR THE DEFAULT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the motion to vacate a default judgment for lack of personal jurisdiction should not have been treated as a motion to vacate based on an excusable default. The defendant raised a question of fact about whether he was properly served by demonstrating the address at issue did not exist. There was no requirement that defendant demonstrate a reasonable excuse:

Where, as here, a defendant moves to vacate a judgment entered upon [the defendant’s] default in appearing or answering the complaint on the ground of lack of personal jurisdiction [under CPLR 5015 (a) (4)], the defendant is not required to demonstrate a reasonable excuse for the default and a potentially meritorious defense” … . Thus, contrary to the court’s determination, it is immaterial when defendant first learned of the judgment.

With respect to the merits, defendant contended in support of his motion that the court lacked personal jurisdiction over him because he was not properly served with the supplemental summons and amended complaint pursuant to CPLR 308 (4) (see CPLR 5015 [a] [4]). “Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served[, but] . . . a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server’s affidavit” … . We agree with defendant that, by submitting uncontradicted evidence that the address listed in the affidavit of service does not exist, he overcame the presumption of proper service and created “a genuine question” whether the “nail and mail” service used here was effected in accordance with the statute … . L&W Supply Corp. v Built-Rite Drywall Corp., 2023 NY Slip Op 05079, Fourth Dept 10-6-23

Practice Point: Here defendant was purportedly served by “nail and mail.” Defendant demonstrated the address in the affidavit of service did not exist. Therefore defendant was entitled to a hearing. There was no need for defendant to demonstrate a reasonable excuse for the default.

 

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DEFENDANT HAD THE RIGHT TO ASSIGNED COUNSEL IN THIS CIVIL CONTEMPT PROCEEDING STEMMING FROM DEFENDANT’S FAILURE TO PAY CHILD SUPPORT; THE JUDGE SHOULD HAVE CONDUCTED AN INQUIRY TO SEE IF DEFENDANT QUALIFIED FOR ASSIGNED COUNSEL PRIOR TO ISSUING THE ORDER OF COMMITMENT (SECOND DEPT).

The Second Department, reversing the order of commitment in this matrimonial case, noted that defendant faced possible jail time for civil contempt stemming from a failure to pay child support. Therefore defendant had a right to assigned counsel if found indigent. The judge should have have ascertained defendant’s financial condition:

“In general, the respondent in a civil contempt proceeding who faces the possibility of the imposition of a term of imprisonment, however short, has the right to the assignment of counsel upon a finding of indigence” … . “Moreover, a parent has the statutory right to counsel in a proceeding in which it is alleged that he or she has willfully failed to comply with a prior child support order” … .

Here, the defendant informed the Supreme Court on multiple occasions that he could not afford to retain an attorney. Therefore, prior to issuing an order of commitment, the court should have inquired into the defendant’s current financial circumstances to determine whether he had become eligible for assigned counsel … . Hoffman v Hoffman, 2023 NY Slip Op 04959, Second Dept 10-4-23

Practice Point: Here defendant was found in civil contempt for failure to pay child support. Because the judge was going to order jail-time, defendant had the right to assigned counsel if he could not afford an attorney. The judge should have conducted an inquest to determine defendant’s financial condition before issuing the order of commitment.

 

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TO CONSIDER A LATE MOTION TO DISMISS, THE PARTIES MUST FIRST BE PUT ON NOTICE THE MOTION WILL BE TREATED AS A SUMMARY JUDGMENT MOTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the post answer motion to dismiss should not have been heard because there was no notice the motion would be treated as a summary judgment:

By summons and complaint dated July 8, 2021, plaintiff commenced this action against defendant to recover approximately $360,000 in unpaid counsel fees. Defendant answered on or about August 18, 2021 and asserted the statute of limitations as an affirmative defense. On September 1, 2022, defendant moved under CPLR 3211(a)(5) to dismiss the complaint as barred by the statute of limitations. Defendant’s post-answer motion to dismiss was not timely (CPLR 3211 [e] …). Thus, the motion could not be properly considered unless the parties were given adequate prior notice that the motion would be treated as a motion for summary judgment under CPLR 3212 or unless an exception to the notice requirement applied (see CPLR 3211[c] … ). Because defendant does not argue that adequate notice was given or that an exception to the notice requirement applied, we reverse and remand for consideration after the parties are given the requisite notice …   Smith, Gambrell & Russell, LLP v 3 W. 16th St., LLC, 2023 NY Slip Op 04952, First Dept 10-3-23

Practice Point: A late (post answer) motion to dismiss should not be considered unless the parties have been notified the motion will be treated as a summary judgment motion, or unless some exception to the notice requirement applies.

 

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THE PARTIES’ STIPULATION REQUIRED PLAINTIFF TO FURNISH PAY STUBS AS A PREREQUISITE FOR HER RECEIVING CHILD SUPPORT; SUPREME COURT SHOULD NOT HAVE HELD THAT INFORMAL TIMESHEETS WERE THE FUNCTIONAL EQUIVALENT OF PAY STUBS (FIRST DEPT).

The First Department, reversing Supreme Court, determined the requirement in the parties’ stipulation that, in order to receive child support, defendant must demonstrate her employment by furnishing pay stubs was not met by furnishing time sheets:

The parties’ stipulation of August 24, 2021, provides in pertinent part that plaintiff will pay defendant $2,000 per month “as a contribution towards [defendant’s] childcare expenses.” Plaintiff’s obligation to make the payment is conditioned upon defendant being “employed by a nonrelative” and upon her periodic furnishing to plaintiff of “paystub[s]” documenting such employment. The stipulation requires defendant to provide plaintiff with her first paystub from a given employer, the first and last paystub of each calendar year, and the paystub covering July 1 of each year. Defendant moved for an order directing plaintiff to make a childcare payment based on her provision of timesheets purporting to document childcare services that she performed for Matthew Kleban. Kleban is the father of two girls, one of whom is a friend of the parties’ daughter.

… [T]he parties, both represented by counsel, entered into a stipulation that expressly conditioned plaintiff’s obligation to make childcare payments upon defendant’s production of “paystub[s]” to document her employment by a nonrelative. The term “paystub” is defined as “a record that is given to an employee with each paycheck and that shows the amount of money earned and the amount that was removed for taxes, insurance costs, etc.” (https://merriam-webster.com/dictionary/paystub); accord Black’s Law Dictionary 1364 [11th ed 2019]). Under this definition, and based upon the circumstances herein, the informal timesheets produced by defendant plainly do not qualify as “paystubs.” In holding that plaintiff’s childcare payment obligation was nonetheless triggered under the stipulation because the timesheets were the “functional equivalent” of paystubs, the motion court impermissibly changed the meaning of the parties’ agreement by adding or excising terms under the guise of construction … . Franklin v Franklin, 2023 NY Slip Op 04925, First De[t 10-3-23

Practice Point: Here the judge’s finding that informal timesheets were the functional equivalent of pay stubs impermissibly changed the meaning of the parties’ stipulation. The stipulation required plaintiff to prove she was employed as a prerequisite for her receipt of child support.

 

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