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PETITIONER WAS ENTITLED TO A HEARING TO DETERMINE WHETHER SHE TOOK ADEQUATE STEPS TO LEARN THE IDENTITY OF THE OWNER AND OPERATOR OF THE CAB IN WHICH SHE WAS A PASSENGER WHEN THE CAB WAS STRUCK BY A HIT AND RUN DRIVER; PETITIONER SOUGHT TO COMMENCE AN ACTION AGAINST THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition to commence an action against the Motor Vehicle Accident Indemnification Corporation (MVAIC) should not have been denied without a hearing. Petitioner was injured when a hit and run driver struck the cab she was riding in. The issue was whether petitioner took adequate steps to learn the identity of the owner and operator of the cab:

MVAIC was created to compensate innocent victims of hit-and-run motor vehicle accidents … . Insurance Law § 5218 sets forth the procedure for applying to a court for leave to commence an action against MVAIC in a hit-and-run case. “This statute provides, inter alia, that a person may apply to a court for an order permitting an action against MVAIC when, as relevant here, there is a cause of action to recover damages for personal injury arising out of the ownership, maintenance, or use of a motor vehicle, and when the identity of the motor vehicle and of the operator and owner thereof cannot be ascertained” … . “If the court, after a hearing, is satisfied that, inter alia, all reasonable efforts have been made to ascertain the identity of the motor vehicle and of the owner and operator and either the identity of the motor vehicle and the owner and operator cannot be established, then it may issue an order permitting an action against MVAIC” … .

Supreme Court should not have denied the petition and dismissed the proceeding without first having conducted a hearing. * * * Given the efforts made by the petitioner, there are issues of fact as to whether, under the circumstances, her efforts to ascertain the owner and operator of the livery cab were reasonable. Matter of Benalcazar v Motor Veh. Acc. Indem. Corp., 2023 NY Slip Op 04376, Second Dept 8-23-23

Practice Point: Before the Motor Vehicle Accident Indemnification Corporation could be sued in this traffic accident case, the injured party (petitioner) was required take adequate steps to learn the identity of the owner and operator of the cab in which she was a passenger when the cab was struck by a hit and run driver. The efforts made by petitioner here were sufficient to warrant a hearing on the issue.

 

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DEFENSE COUNSEL RAISED A BATSON OBJECTION TO THE STRIKING OF FIVE JURORS; THE JUDGE RESTRICTED THE CHALLENGES TO TWO OF THE FIVE STRUCK IN THE MOST RECENT ROUND OF JURY SELECTION; NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined the trial judge should not have limited the defense Batson objections to the prosecutor’s striking non-white potential jurors. Defense counsel challenged the striking of five jurors but the judge limited the challenges to the two struck in the most recent round of jury selection:

… [D]efense counsel made an application pursuant to Batson as to the five prospective nonwhite jurors stricken from the three rounds. Defense counsel stated: “that will be a total of . . . five non-white jurors that were struck by the People, and there have not been that many non-white potential jurors we have seen.” Defense counsel added, “so out of the 11 strikes, five of them were for non-white jurors,” and “I believe that makes a prima facie case regarding the protective class”. The court responded: “Let’s talk about this round only.” The People proceeded to proffer reasons for striking only the two panelists from the third round. The defense renewed its Batson challenge when the prosecution struck a sixth nonwhite potential juror in a subsequent round, stating that the People “are deliberately striking non-white jurors.” The court specifically stated it was “not going to address that” and defense counsel noted their exception. …

The trial court erred in denying defendants an opportunity to present their full Batson challenge when it improperly limited the inquiry to only two of the challenged prospective jurors. As this Court held in People v Frazier (125 AD3d 449, 449 [1st Dept 2015]), “[a]lthough the court did not make a specific ruling that defendants satisfied step one of Batson (prima facie case of discrimination), once it ordered the prosecutor to provide the reasons for his peremptory challenges to two of the . . . panelists who were the subject of defendants’ application, it should have required the prosecutor to articulate his reasons for striking the remaining . . . panelists, as defendants specifically requested.” The People argue that unlike Frazier, the trial court here simply directed the parties to focus on the panelists challenged in round three of jury selection and the prosecutor volunteered race-neutral reasons without being ordered to do so. This is a distinction without a difference. As in Frazier, once the trial court asked the prosecutor to offer race-neutral reasons for striking two of the prospective jurors, it should have also requested an explanation for striking the remaining panelists that were part of the same application. The court failed to do so, and consequently, the case should be remanded for a new trial. People v Julio, 2023 NY Slip Op 04349, First Dept 8-17-23

Practice Point: When defense counsel raised Batson challenges to five jurors who had been struck, the judge limited the challenges to the two struck in the most recent round of jury selection. That was reversible error.

 

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THE GRANDPARENTS’ PETITION FOR VISITATION SHOULD NOT HAVE BEEN DENIED ABSENT A FULL BEST INTERESTS OF THE CHILD HEARING (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined the court should not have dismissed the grandparents’ petition for visitation before holding a best interests of the child hearing:

… [T]he court erred in granting respondents’ motion and in terminating the hearing before petitioners had completed the presentation of their case … . “[E]ven where . . . a grandparent has established standing to seek visitation, ‘a grandparent must then establish that visitation is in the best interests of the grandchild . . . Among the factors to be considered are whether the grandparent and grandchild have a preexisting relationship, whether the grandparent supports or undermines the grandchild’s relationship with his or her parents, and whether there is any animosity between the parents and the grandparent’ ” … . Visitation and “custody determinations should ‘[g]enerally’ be made ‘only after a full and plenary hearing and inquiry’ ” … , “[u]nless there is sufficient evidence before the court to enable it to undertake a comprehensive independent review of the child[‘s] best interests” … . Upon our review of the record, we conclude that, “[a]bsent a[ full] evidentiary hearing, . . . the court here lacked sufficient evidence . . . to enable it to undertake a comprehensive independent review of the [children]’s best interests” … . We therefore reverse the order, deny the motion, reinstate the petitions, and remit the matter to Supreme Court for a full evidentiary hearing on the petitions. DeMarco v Severance, 2023 NY Slip Op 04284, Fourth Dept 8-11-23

Practice Point: The grandparents’ petition for visitation should not have been dismissed absent a full best interests of the child hearing.

 

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THE CHILD HAD LIVED WITH HIS GRANDPARENTS FOR HIS ENTIRE LIFE; THE GRANDPARENTS DEMONSTRATED EXTRAORDINARY CIRCUMSTANCES NECESSITATING A BEST INTERESTS OF THE CHILD HEARING PRIOR TO RULING ON MOTHER’S PETITION FOR A MODIFICATION OF CUSTODY; TWO-JUSTICE DISSENT; MATTER REMITTED FOR A HEARING (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, over a two-justice dissent, determined the grandparents established extraordinary circumstances necessitating a best interests hearing before a ruling on mother’s request for a modification of custody. Mother sought to regain custody of the child who was eight years old and had resided with the grandparents for his entire life:

It is undisputed that the child, who was eight years old at the time of the hearing, had lived with the grandparents for his entire life in the only home he has ever known; the child expressed a strong desire to continue residing with his grandparents and the AFC adheres to that position on appeal; the mother and the father both suffered from severe substance abuse problems for years and were unable to care for the child on their own; the mother failed to contact the child for a period of 18 months before resuming visitation in January 2018; the child’s half-sister also resided with the grandparents and the child developed a sibling relationship with her; and “the grand[parents] ha[ve] taken care of the child for most of his life and provided him with stability” …  Additionally, according to the AFC, the child had “developed a strong emotional bond with the grand[parents]” … .

… [W]e conclude that, “even if the prolonged separation alone is entitled to little significance here, the combination of that factor along with others present on this record sufficiently establish the existence of extraordinary circumstances” … , and that the court’s contrary determination is not supported by a sound and substantial basis in the record.

… [W]e remit the matter to Family Court for a new hearing to determine whether the modifications of the prior order sought by the mother are in the best interests of the child … . Matter of Tuttle v Worthington, 2023 NY Slip Op 04282, Fourth Dept 8-11-23

Practice Point: The child’s grandparents made a showing of extraordinary circumstances requiring a best interests of the child hearing before ruling on mother’s petition for a modification of custody. The child, eight years old, had lived his entire life with his grandparents.

 

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THERE WAS NO REASONABLE VIEW OF THE EVIDENCE WHICH SUPPORTED THE JURY’S CONCLUSION THE BUS DRIVER WAS NOT NEGLIGENT IN THIS BUS-PEDESTRIAN ACCIDENT CASE; THE MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to set aside the defense verdict in this bus-pedestrian accident case should have been granted:

A jury verdict in favor of a defendant should be set aside as contrary to the weight of the evidence where the evidence preponderates so heavily in the plaintiff’s favor that it could not have been reached by any fair interpretation of the evidence … . “A driver . . . has ‘a statutory duty to use due care to avoid colliding with pedestrians on the roadway (see Vehicle and Traffic Law § 1146), as well as a common-law duty to see that which he [or she] should have seen through the proper use of his [or her] senses'” … .

Here, no fair interpretation of the evidence supports a finding that Ramirez was free from negligence in the happening of this accident. Although it is unclear whether the plaintiff was crossing the entrance ramp in or near the crosswalk at the time that she was struck, Ramirez’s failure to observe the plaintiff crossing the entrance ramp at the time of the accident was a violation of his common-law duty to see that which he should have seen through the proper use of his senses … . Under these circumstances, the jury’s verdict that Ramirez was free from negligence was not supported by any fair interpretation of the evidence. Wargold v Hudson Tr. Lines, Inc., 2023 NY Slip Op 04153, Second Dept 8-2-23

Practice Point: A driver has a common law duty to see what he should have seen. The motion to set aside the defense verdict in this bus-pedestrian accident case should have been granted.

 

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​ PETITIONER’S APPLICATION FOR A PISTOL PERMIT SHOULD NOT HAVE BEEN DENIED BASED UPON A 23-YEAR-OLD ARREST THAT DID NOT RESULT IN PROSECUTION; PETITIONER SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO RESPOND TO THE OBJECTIONS TO THE APPLICATION (SECOND DEPT).

The Second Department, reversing County Court, determined petitioner’s application for a residential/sportsman pistol permit should not have been denied based upon a single arrest 23 years before which did not result in prosecution. The Second Department noted that petitioner was not given the opportunity to respond to the objections to his application:

… [T]he respondent’s determination denying the petitioner’s application for a pistol permit was arbitrary and capricious … . Although the respondent was entitled to consider the petitioner’s prior arrest, the circumstances thereof did not, under the particular facts of this case, warrant the denial of the petitioner’s application. The record reflects, among other things, that the petitioner properly disclosed his arrest in his application, that the weapon in question belonged to a hitchhiker the petitioner picked up while driving his vehicle when he was 19 years old, that an investigation by the District Attorney’s office determined that the weapon belonged to the hitchhiker, that the petitioner testified before a grand jury in connection with the subject matter, that the grand jury entered a no true bill against the petitioner, and that the petitioner has no other criminal record in the 23 years between his single arrest and the date of the pistol permit application. Further, based upon the record before us, it is apparent that the respondent did not give the petitioner an opportunity to respond to the stated objections to his pistol permit application … . Matter of Cambronne v Russo, 2023 NY Slip Op 04121, Second Dept 8-2-23

Practice Point: Here the denial of petitioner’s pistol-permit application was deemed arbitrary and capricious because it was based on a 23-year-old arrest that did not result in prosecution.

Practice Point: An applicant for a pistol permit should be given an opportunity to respond to objections to the application.

 

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A MOTION TO MODIFY THE CUSTODY PROVISIONS IN A SETTLEMENT AGREEMENT, WHERE THERE ARE CONTESTED FACTS, SHOULD NOT BE GRANTED WITHOUT A FULL HEARING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the motion for a modification of custody allowing mother the relocate should not have have been granted without a hearing:

“Since a court has an obligation to make an objective and independent evaluation of the circumstances, a custody determination should be made only after a full and fair hearing at which the record is fully developed” … . “This allows the court to fulfill its duty to make an enlightened, objective and independent evaluation of the circumstances” … . “[A]s a general rule, it is error to make an order respecting custody based upon controverted allegations without the benefit of a full hearing” … .  Rizea v Rizea, 2023 NY Slip Op 03935, Second Dept 7-26-23

Practice Point: Any modification of custody, where there are contested facts, requires a full hearing.

 

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DESPITE MOTHER’S DEFAULT, CUSTODY SHOULD NOT HAVE BEEN AWARDED WITHOUT A HEARING AND FINDINGS ON THE BEST INTERESTS OF THE CHILD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although mother defaulted, the court should not have made a custody ruling without a hearing and findings on the best interests of the child:

Courts may generally proceed by default when a party has failed to comply with an order of the court … . “This authority, however, in no way diminishes the court’s primary responsibility to ensure that an award of custody is predicated on the child’s best interests, upon consideration of the totality of the circumstances, after a full and comprehensive hearing and a careful analysis of all relevant factors” … . “A custody determination, whether made upon the default of a party or not, must always have a sound and substantial basis in the record” … . “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” … .

Here, the Supreme Court made a custody determination without a hearing and without making any specific findings of fact regarding the best interests of the child. Under the circumstances, that branch of the mother’s motion which was to vacate an order .. awarding custody to the paternal grandmother, should have been granted in the interest of justice … . Accordingly, we remit the matter … for a hearing and a new determination thereafter of the paternal grandmother’s petition for custody of the child, to be held with all convenient speed … . Matter of Trammell v Gorham, 2023 NY Slip Op 03923, Second Dept 7-26-23

Practice Point; Even in the face of a parent’s default, a custody award should not be made without a hearing and findings on the best interests of the child.

 

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ALTHOUGH THE PLAINTIFF’S FAILURE TO COMPLY WITH DISCOVERY ORDERS WAS WILLFUL AND CONTUMACIOUS, PRECLUSION OF EXPERT EVIDENCE IN THIS MEDICAL MALPRACTICE CASE WAS TOO SEVERE A SANCTION; PLAINTIFF’S ATTORNEY FINED $5000 (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, determined preclusion of evidence in this medical malpractice case as a sanction for failure to provide discovery was too severe a sanction. The appellate court imposed a monetary sanction on plaintiff’s attorney:

Supreme Court found that plaintiff’s trial counsel engaged in willful and contumacious conduct which delayed resolution of this case, and the record supports such a finding. Defense counsel requested an amended bill of particulars in May 2019 and an amended expert disclosure in October 2019. Despite a plethora of emails and letters from defense counsel, various conferences, scheduling orders and an order compelling compliance with discovery, plaintiff’s trial counsel failed to correct the deficiencies in the discovery disclosure prior to defendant filing a motion for sanctions. Under these circumstances, we agree with Supreme Court that the conduct exhibited by plaintiff’s trial counsel was willful and contumacious and that, upon such finding, the drastic sanction of preclusion was available … . * * *

Having considered the record as a whole, including the supplemental discovery disclosures, the affidavit of merit, the lack of prejudice to defendant and the nature and root of the misconduct, we vacate the August 2022 order that precluded plaintiff from proffering certain evidence and expert witnesses. Exercising our discretion, and given the strong public policy favoring resolution of actions on the merits, we accept the late amended bill of particulars as responsive to the outstanding demand … .. However, the willful and contumacious misconduct by plaintiff’s trial counsel cannot be condoned, as disregard of court orders hinders the efficient resolution of cases … . To dissuade this conduct from repeating, we impose a monetary sanction on plaintiff’s trial counsel in the amount of $5,000 … . M.F. v Albany Med. Ctr., 2023 NY Slip Op 03896, Third Dept 7-20-23

Practice Point: Here the appellate court determined the preclusion of evidence, including expert evidence, in this medical malpractice action was too severe a sanction for disobeying discovery orders. The attorney was fined $5000 for willful and contumacious conduct.

 

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​ PLAINTIFF’S FAILURE TO PROVIDE DISCOVERY AND A BILL OF PARTICULARS WARRANTED DISMISSAL OF THE COMPLAINT AS A SANCTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s motion to dismiss the complaint by plaintiff Morales based upon Morales’s failure to provide discovery and a bill of particulars should have been granted:

… Morales’s willful and contumacious conduct can be inferred from her repeated failures over an extended period of time to comply with court-ordered discovery and the parties’ discovery stipulation and to respond to the defendants’ demands for a verified bill of particulars and discovery without an adequate excuse … . Contrary to the Supreme Court’s determination, the requirements of 22 NYCRR 202.7 were satisfied by the affirmations of the defendants’ attorneys, which, inter alia, adequately set forth counsels’ good faith efforts to resolve the discovery issues raised by the defendants’ motion … . Morales v Valeo, 2023 NY Slip Op 03861, Second Dept 7-19-23

Practice Point: Here plaintiff’s failure to provide discovery and a bill of particulars warranted dismissal of the complaint (by the appellate court) as an appropriate sanction.

 

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