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IF THE JUDGE DOES NOT LAY OUT IN DETAIL THE SPECIFIC CONDUCT JUSTIFYING A DISMISSAL OF AN ACTION FOR NEGLECT TO PROSECUTE, THE REQUIREMENTS FOR DISMISSAL PURSUANT TO CPLR 3216 ARE NOT MET AND THE SIX-MONTH PERIOD FOR THE FILING OF ANOTHER COMPLAINT (CPLR 205(A)) IS AVAILABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the requirements for dismissing the first complaint for neglect to prosecute were not met. Therefore the six-month extension of the statute of limitations applied and the second complaint was not time-barred:

… [T]he complaint in the prior action was not dismissed for “neglect to prosecute” within the meaning of CPLR 205(a). “Where a dismissal is one for neglect to prosecute the action made pursuant to [CPLR 3216] or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” … . Although the court set forth on the record that the plaintiff failed to appear for a single conference and failed to supply an effective authorization for certain relevant medical records, such conduct did not demonstrate a general pattern of delay in proceeding with the litigation … . The court’s conclusory statements, to the effect that the plaintiff had engaged in a general pattern of delay, do not satisfy the statutory requirements that a court set forth on the record the “specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation”… .

Thus, contrary to the Supreme Court’s determination, the six-month extension afforded by CPLR 205(a) was applicable, and the instant action was timely commenced within six months of the termination of the prior action. Crudele v Price, 2023 NY Slip Op 03765, Second Dept 7-12-23

Practice Pont: The statutory requirements in CPLR 3216 for dismissal for neglect to prosecute are strictly enforced by appellate courts. Here the motion court did not lay out the “specific conduct” justifying dismissal for failure to prosecute. Therefore the six-month extension for filing a second complaint pursuant to CPLR 205 (a) was available to the plaintiff.

 

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THE JUDGE SHOULD HAVE ALLOWED TIME FOR OBJECTIONS TO PETITIONER’S APPLICATION TO WITHDRAW THE NEGLECT PETITION AND CANCEL THE FACT-FINDING HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court should not have granted petitioner’s request to withdraw the neglect petition and cancel the fact-finding hearing without allowing time for objections to be raised:

We agree with the AFC that Family Court erred in granting petitioner’s application to dismiss the neglect petition without allowing any time for objections to be raised. We are cognizant that, “ordinarily[,] a party cannot be compelled to litigate and, absent special circumstances, discontinuance should be granted” … . However, one should be given an opportunity to present any such special circumstances or any other arguments concerning the application, such as the effect upon a subject child’s welfare … , whether prejudice should attach to the discontinuance … or whether another party should be permitted, in the court’s discretion, to commence a neglect proceeding (see Family Ct Act § 1032 [b] …). Because Family Court dismissed the petition without allowing the parties — including the father as a nonrespondent parent — to present any arguments regarding petitioner’s application for a discontinuance, we remit this matter to allow them the opportunity to do so. Matter of Lauren X. (Daughn X.), 2023 NY Slip Op 03732, Third Dept 7-6-23

Practice Point: Although a party’s application to discontinue an action, here a neglect petition, should ordinarily be granted, here the judge should have allowed time for objections before granting the application.

 

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AT THE TIME OF THE JUVENILE’S ADMISSION TO POSSESSION OF STOLEN PROPERTY THE JUDGE DID NOT INFORM HIM OR HIS MOTHER OF THE EXACT NATURE OF HIS “PLACEMENT OUTSIDE THE HOME OR ITS POSSIBLE DURATION” AS REQUIRED BY FAMILY COURT ACT SECTION 3213(1); ORDER REVERSED (THIRD DEPT).

The Third Department, reversing the juvenile’s admission in this juvenile delinquency proceeding, determined the juvenile and his mother were not adequately informed of the consequences of the admission to possession of stolen property:

… [T]he allocution in which respondent admitted to [possession of stolen property] was fatally defective because Family Court … failed to comply with the requirements of Family Ct Act § 321.3 (1). At the time of his admission, Family Court commented on some possible dispositions including being “placed outside of [his] home . . . for a period of time.” Neither respondent nor his mother were informed of “the exact nature of his placement outside of the home or its possible duration” … . “Inasmuch as the provisions of Family Ct Act § 321.3 (1) are mandatory and cannot be waived, the order must be reversed” … . Matter of Tashawn MM., 2023 NY Slip Op 03745, Third Dept 7-6-23

Practice Point: At the time of a juvenile’s admission in a juvenile delinquency proceeding, the juvenile must be informed of the exact nature of any “placement outside of the home and its possible duration.” The failure to so inform the juvenile requires reversal of the placement order.

 

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THE FOR CAUSE CHALLENGES TO TWO JURORS WHO SAID THEY WOULD TEND TO BELIEVE THE TESTIMONY OF POLICE OFFICERS SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined that two jurors who stated they would tend to believe the testimony of police officers should have been excused for cause:

The first prospective juror stated in response to a question concerning police officers that she “was raised to respect them” and that, because “they’re the people that are protecting you, you should trust them.” When further probed about weighing the credibility of a police officer’s testimony against a defendant’s testimony, she stated that she would “most likely [believe] the police officer.” The second prospective juror stated that, because of his work as an emergency medical technician, he saw police “in a very positive light.” When asked the same question about whose version of events he would believe, the prospective juror stated “[t]o be completely honest, probably the first responder police officer.”

Further, both prospective jurors repeated that they would likely believe a police officer’s account of an event over a defendant’s version after the court attempted to rehabilitate them … . Thus, their respective affirmative answers when the court asked them if they could be fair and impartial were “insufficient to constitute . . . unequivocal declaration[s]” that they could set aside their stated bias in favor of police officers … . After the court denied his challenges for cause, defendant used peremptory challenges to remove the two prospective jurors from the venire and, therefore, “[b]ecause defendant exhausted all of his peremptory challenges before the completion of jury selection, reversal is required” … . People v Smith, 2023 NY Slip Op 03647, Fourth Dept 6-30-23

Practice Point: Here the for cause challenges to two jurors who said they would tend to believe the testimony of police officers should have been granted. Because defendant exhausted all peremptory challenges, reversal was required. The fact that the jurors said they could be fair and impartial was not enough to warrant denial of the challenges.

 

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DEFENDANT CHALLENGED THE VALIDITY OF THE PAROLE WARRANT WHICH WAS THE BASIS OF THE ENTRY INTO HIS HOME (THE PAYTON ISSUE); THE JUDGE SHOULD HAVE HELD A HEARING TO DETERMINE THE VALIDITY OF THE PAROLE WARRANT (FOURTH DEPT).

The Fourth Department, remitting the matter for a hearing, determined the judge should not have found the police entry into defendant’s residence (the Payton issue) was justified by the parole warrant without a hearing to determine validity of the parole warrant:

” … A parole violation warrant by itself justifies the entry of the residence for the purposes of locating and arresting the defendant therein . . . provided that, as here, the officers ‘reasonably believe[d] the defendant to be present’ in the premises … . … Inasmuch as defendant challenged the factual basis for and the continued validity of the parole violation warrant at the time of his arrest, which he alleged was executed solely by police officers unaccompanied by parole officers, that was error.

Pursuant to 9 NYCRR 8004.2 (a), a parole violation warrant cannot be issued without “probable cause to believe that [the parolee] has violated one or more of the conditions of their release.” “Probable cause exists when evidence or information which appears reliable discloses facts or circumstances that would convince a person of ordinary intelligence, judgment and experience that it is more probable than not that the subject releasee has committed the acts in question” (9 NYCRR 8004.2 [b]). If a parole officer believes that there is probable cause that the parolee has violated a condition of release “in an important respect,” that parole officer is required to report that to the parole board “or a designated officer,” such as a senior parole officer (9 NYCRR 8004.2 [a]), at which time “a notice of violation may be approved” (9 NYCRR 8004.2 [c]) and a warrant for “retaking and temporary detention may [be] issue[d]” by, among others, a designated officer (9 NYCRR 8004.2 [d]). Notably, a parole violation warrant may be administratively canceled “[a]t any time” after it is issued (9 NYCRR 8004.11 [a]).

Here, inasmuch as defendant sufficiently raised the Payton issue in his omnibus motion, and the People’s opposition papers did not resolve the issue as a matter of law, the court should have afforded defendant the opportunity to put the People to their proof regarding the alleged probable cause for the warrant, i.e., absconding, and whether the warrant was still active at the time defendant was arrested … . People v McCracken, 2023 NY Slip Op 03614, Fourth Dept 6-30-23

Practice Point: Here the entry into defendant’s home was justified by a parole warrant. Because the defendant challenged the validity of the parole warrant, and the People did not demonstrate its validity in their papers, defendant was entitled to a judicial determination after a hearing.

 

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THE JUDGE SHOULD HAVE INQUIRED INTO DEFENDANT’S ALLEGATION HIS ASSIGNED COUNSEL WAS BEING PAID BY HIS FAMILY; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the judge should have, but did not, conduct an inquiry into defendant’s allegation his assigned counsel was being paid by his family:

… Supreme Court violated his right to counsel when it failed to conduct a sufficient inquiry into defendant’s complaint that his assigned counsel accepted payment from his family. … [T]rial courts have the “ongoing duty” to ” ‘carefully evaluate serious complaints about counsel’ ” … . * * *

Here, defendant sent a letter to the court alleging … that his assigned counsel was being paid by his family, which is a serious complaint involving unethical and illegal conduct (see generally County Law § 722-b [4]). Although the court began to engage defense counsel in a discussion concerning defendant’s letter, before defense counsel was able to address the concerns raised by defendant in the letter, the court interjected and said, “You are going to represent [defendant] at trial.” The court then addressed defendant directly and concluded its comments to him by stating … “You are not going to get another attorney.” At no time did the court make any inquiry into defendant’s allegation that his family had paid defense counsel to represent him. … [W]e conclude that the court violated defendant’s right to counsel by failing to make a minimal inquiry concerning his serious complaint … . People v Jackson, 2023 NY Slip Op 03609, Fourth Dept 6-30-23

Practice Point: Here defendant requested new counsel on the ground his assigned attorney was being paid by his family (apparently a violation of County Law). The judge’s failure to inquire into the complaint violated defendant’s right to counsel.

 

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PRECEDENT DID NOT REQUIRE THE TRIAL JUDGE TO ADMIT, UNDER SANDOVAL, EVIDENCE OF A PRIOR CONVICTION SIMILAR TO THE OFFENSE ON TRIAL; RATHER THAT PRECEDENT ONLY HELD EVIDENCE OF A PRIOR CONVICTION SHOULD NOT BE EXCLUDED SOLELY BASED ON SIMILARITY; THE PREJUDICE VERSUS PROBATIVE-VALUE ANALYSIS SHOULD STILL BE APPLIED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the trial judge was not bound by Fourth Department precedent to admit, under Sandoval, evidence of a prior possession of a weapon conviction in this criminal possession of a weapon prosecution. The Fourth Department has held that evidence of a prior conviction should not be excluded solely based on similarity with the offense on trial. But here the Fourth Department made clear that the prejudice versus probative-value analysis should still be applied where the crimes are similar:

… [T]he court cited this Court’s decision in People v Stanley (155 AD3d 1684 [4th Dept 2017] …) and advised defense counsel that she “may want to discuss [her arguments] with the Fourth Department,” explaining that Stanley was “their ruling, not my ruling” and that it was “bound by [the Fourth Department’s] rulings.” …

Stanley, however, stands for the proposition that “[c]ross-examination of a defendant concerning a prior crime is not prohibited solely because of the similarity between that crime and the crime charged” … . That means that a Sandoval application by the People should not be automatically denied merely because a prior conviction is similar in nature to the present offense, and certainly does not mean that a court must automatically grant the People’s application. There was nothing in Stanley that “bound” the court in this case and, to the contrary, the court was required to make its own discretionary balancing of the probative value of defendant’s prior conviction against its potential for undue prejudice … . People v Colon, 2023 NY Slip Op 03583, Fourth Dept 6-30-23

Practice Point: Precedent holding that, under Sandoval, evidence of a prior conviction should not be excluded solely because it is similar to the crime on trial does not mean that similar crimes should automatically be admitted. The prejudice versus probative-value analysis should be still be applied to similar crimes.

 

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PLAINTIFFS’ ATTORNEY FAILED TO SUBMIT MEDICAL RECORDS REQUESTED BY THE JUDGE FOR MORE THAN A YEAR AFTER THE INQUEST; THE APPLICATION FOR DAMAGES SHOULD NOT HAVE BEEN DENIED ON THAT GROUND; PLAINTIFFS SHOULD NOT BE PENALIZED FOR THE NEGLECT OF THEIR ATTORNEY (SECOND DEPT). ​

The First Department, reversing Supreme Court, determined the application for damages in this personal injury action should not have been denied due to plaintiffs’ counsel’s failure to submit medical records for more than a year after the inquest. Plaintiffs should not be prejudiced by their counsel’s inaction:

Although plaintiffs’ counsel had timely subpoenaed the relevant medical records and those records were apparently delivered to the subpoenaed records room in the courthouse, they were not available at the inquest. Supreme Court therefore reserved decision to give plaintiffs time to submit evidence supporting their damages claim. After a period of more than one year in which plaintiffs’ counsel failed to provide the requested information, Supreme Court issued an order … denying the application for damages on the ground of failure of proof.

Supreme Court improvidently exercised its discretion in denying plaintiffs’ motion to vacate the underlying default. Although we share the court’s concern regarding the extended delay and the inattentiveness of plaintiffs’ former counsel, counsel’s neglect in pursuing his clients’ action should not be permitted to redound to the clients’ detriment … . Counsel did not deny that he failed to respond to communications from the court, but explained that the delays were due to a problem in his firm’s case management system, which did not provide reminders … . These circumstances present a type of law office failure for which the clients should not be penalized , particularly in light of the strong public policy preference for deciding cases on the merits … . In addition, defendants defaulted and therefore will not be prejudiced … . Rosario v General Behr Corp., 2023 NY Slip Op 03560, Second Dept 6-28-23

Practice Point: Here the attorney’s failure to submit medical records requested by the judge after an inquest was not the type of law office failure for which plaintiffs should be penalized. The judge should not have dismissed the application for damages based on counsel’s neglect.

 

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VACATING A NOTE OF ISSUE IS NOT THE SAME AS MARKING A CASE OFF PURSUANT TO CPLR 3404; WHEN A NOTE OF ISSUE IS VACATED, THE ACTION REVERTS TO A PRE-NOTE OF ISSUE STATUS AND CAN BE RESTORED TO THE ACTIVE CALENDAR WITHOUT MEETING THE STRINGENT CPLR 3404 REQUIREMENTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to restore the action to the active calendar should have been granted. The note of issue had been vacated but the action had not been marked off pursuant to CPLR 3404. Therefore the criteria for restoring an action that had been marked off for more than a year did not apply:

Pursuant to CPLR 3404, “[a] case . . . marked ‘off’ or struck from the calendar . . . and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute.” “A plaintiff seeking to restore a case to the trial calendar more than one year after it has been marked ‘off,’ and after the case has been dismissed pursuant to CPLR 3404, must demonstrate a [potentially] meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendant” … .

Here, the order … vacating the note of issue was not equivalent to an order marking “off” or striking the case from the calendar pursuant to CPLR 3404 … . Thus, CPLR 3404 did not apply “because the case reverted to its pre-note of issue status once the note of issue was vacated” … As it is undisputed that there was neither a 90-day demand served upon the plaintiff pursuant to CPLR 3216 nor an order directing dismissal of the complaint pursuant to 22 NYCRR 202.27, and that discovery is complete, the Supreme Court should have granted the plaintiff’s motion to restore the action to the active calendar … . Carrero v Pena, 2023 NY Slip Op 03448, Second Dept 6-28-23

Practice Point: Restoring an action to the calendar after it has been marked off pursuant to CPLR 3404 for more than a year is subject to the stringent requirements of CPLR 3404. But vacating a note of issue, as opposed to marking off the case, restores the action to pre-note of issue status and the action can be restored without meeting the CPLR 3404 requirements because CPLR 3404 is not applicable.

 

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THE TRIAL JUDGE TOOK ON THE APPEARANCE OF AN ADVOCATE FOR THE PROSECUTION IN QUESTIONING WITNESSES; ROBBERY CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s robbery conviction and ordering a new trial, determined the trial judge acted as an advocate for the prosecution when questioning witnesses. The issue was not preserved but the Second Department exercised its interest of justice jurisdiction:

“[A] trial judge is permitted to question witnesses to clarify testimony and to facilitate the progress of the trial, and, if necessary, to develop factual information,” so long as the judge does not take on the function or appearance of an advocate … . Here, the Supreme Court engaged in its own lines of inquiry, which detailed the nature of the surveillance equipment tracking the defendant, elicited a detailed description of the perpetrator and the bags he was carrying, and what the perpetrator was observed doing on the video surveillance camera, asked leading questions as to what the guard saw and heard as the perpetrator left the store and triggered the store alarm, and noted that when the guard approached the perpetrator and asked for the merchandise back, the guard even said, “please,” but the perpetrator still refused to return the items.

The Supreme Court also repeated the perpetrator’s allegedly threatening language, “[K]eep going or watch what’s going to happen to you,” and noted that it looked like the perpetrator was reaching for something and the guard did not want to find out what it was. During the direct examination of the arresting officer, the court elicited the fact that the officer observed a duffel bag containing the stolen property on the subway platform next to the defendant.

Viewing the record as a whole, the Supreme Court took on the function and appearance of an advocate, at times even engaging in a running commentary on the testimony against the defendant. The court’s conduct left the impression that its opinion favored the credibility of the People’s witnesses and the merits of the People’s case … . People v Pulliam, 2023 NY Slip Op 03482, Second Dept 6-28-23

Practice Point: A trial judge can ask questions of witnesses but cannot take on the appearance of an advocate for the prosecution.

 

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