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JOINT LEGAL CUSTODY TO MOTHER AND FATHER AND PRIMARY CUSTODY TO FATHER WERE NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court in this divorce proceeding, determined the award of joint legal custody and the award of primary custody to father were not supported by the evidence. The hostility between father and mother and father’s violent behavior were not given proper consideration:

“Entrusting the custody of young children to their parents jointly, especially where the shared responsibility and control includes alternating physical custody, is insupportable when parents are severely antagonistic and embattled” … . In determining whether joint legal custody is appropriate, “the question of fault is beside the point” … . …

… [T]he court failed to give adequate weight to the father’s extensive history of domestic violence or his continued minimization of his actions and denial of the nature and extent of his mental illness. The evidence established that the father engaged in multiple acts of domestic violence against the mother in the presence of the children. Despite having been convicted of and serving a jail sentence for one of those acts, the father continued to deny that he had ever engaged in domestic violence. Further, although the father has been diagnosed, by more than one provider, with a bipolar disorder, he testified at trial that he could not recall ever having been given such a diagnosis. Both the mother and the father testified that the father had discontinued the use of his prescribed medications without discussing it with his treatment providers. The father had also threatened to commit suicide on more than one occasion, prompting calls to the police that resulted in brief hospitalizations for which the father blamed the mother. At the time of the trial, the evidence established that the father’s current medication regimen was inappropriate for Bipolar Disorder treatment and that the father was not currently engaged in any regular mental health counseling. Crofoot v Crofoot, 2023 NY Slip Op 02205, Fourth Dept 4-28-23

Practice Point: The hostility between mother and father and father’s violent behavior and mental illness were not given appropriate weight when the court awarded joint legal custody to mother and father and primary custody to father.

 

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THE JUDGE IMPROPERLY DISMISSED A JUROR WHEN SHE DIDN’T APPEAR WITHOUT MAKING AN INQUIRY; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, over a concurrence, determined judge improperly dismissed a juror in the absence of an adequate inquiry:

After juror No. 1 was selected and sworn in, but before jury selection had concluded, County Court made a record that juror No. 1 “needed to go home due to some health issues” but was advised, and agreed, to return the next day at 9:00 a.m. However, as of 9:28 a.m. the next morning, the court noted that juror No. 1 had not returned and, because the juror had left ill the prior day, the court found it “necessary to just replace her with the first alternate at this point.” Defense counsel then registered an exception to the court’s replacement of juror No. 1 … . Thereafter, County Court failed to conduct any inquiry regarding the absence of juror No. 1. When asked whether the court had received any notification from the juror, the court responded, “No. Basically, I don’t have juror number one. She’s just plain not here. She left early yesterday ill . . . . So, we are going to replace juror number one.” Although replacement of a juror is generally left to the court’s discretion, “[w]ithout a reasonably thorough inquiry, . . . the exercise of the court’s discretion on the ultimate issue of whether or not to replace the juror [was] uninformed” … .. County Court was certainly not required to wait two hours before substituting juror No. 1, but, on the record before us, it impermissibly presumed that she was “unavailable for continued service without conducting the requisite reasonably thorough inquiry and determining that [the] juror [was] not likely to appear within two hours” … . People v Watts, 2023 NY Slip Op 02144, Third Dept 4-27-23

Practice Point: Here a juror didn’t show up at 9:30 a.m. and the judge replaced her without making an inquiry. Defense counsel preserved the error by registering an exception. A new trial was ordered.

 

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THIS FAMILY OFFENSE PROCEEDING WAS REMITTED TO FAMILY COURT; APPELLATE REVIEW WAS NOT POSSIBLE IN THE ABSENCE OF FINDINGS OF FACT ADDRESSING CONFLICTING EVIDENCE AND THE CREDIBILITY OF WITNESSES (SECOND DEPT).

The Second Department, remitting the matter to Family Court in this family offense proceeding, noted that appellate review was impossible without findings of fact:

The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court, and that court’s determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record … .

Effective appellate review requires that appropriate factual findings be made by the hearing court since it is the court best able to measure the credibility of the witnesses … . In granting or denying a petition for an order of protection, the Family Court must state the facts deemed essential to its determination (see CPLR 4213[b] … ). Remittal is not necessary, however, where the record is sufficient for this Court to conduct an independent review of the evidence … .

Here, the Family Court, which was presented with sharply conflicting accounts by the parties regarding their allegations, issued mutual orders of protection without setting forth any findings with respect to the credibility of the parties or the facts deemed essential to its determinations (see CPLR 4213[b]). Since the record presents factual issues, including questions of credibility, and in light of the conflicting allegations made by the parties against each other, resolution thereof is best left to the court of first instance … . Matter of Sealy v Peart, 2023 NY Slip Op 02128, Second Dept 4-26-23

Practice Point: Here in this family offense proceeding appellate review was not possible because the Family Court judge did not make any findings addressing conflicting evidence and the credibility of witnesses. The matter was remitted because the record was not sufficient for an independent review.

 

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THE BRAKES FAILED ON A LIMOUSINE OWNED BY PETITIONER AND 20 PEOPLE DIED; PETITIONER PLED TO 20 COUNTS OF CRIMINALLY NEGLIGENT HOMICIDE AND, PURSUANT TO A PLEA AGREEMENT, WAS SENTENCED TO PROBATION AND COMMUNITY SERVICE; BECAUSE OF A TECHNICAL DEFECT IN THE SENTENCE, PETITIONER APPEARED FOR RESENTENCING BEFORE A DIFFERENT JUDGE WHO DECIDED TO IMPOSE PRISON TIME; PETITIONER WITHDREW HIS PLEA, THE MATTER WAS SET FOR TRIAL AND PETITIONER BROUGHT THIS ARTICLE 78 PROCEEDING TO REINSTATE THE ORIGINAL SENTENCE; THE PETITION WAS DENIED OVER A DISSENT (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Ceresia, over a dissent. denied the petition to reinstate the original sentence in the prosecution of the owner of a limousine service. The brakes failed on one of petitioner’s limousines and the driver, 17 passengers and two pedestrians were killed. Petitioner pled guilty to 20 counts of criminally negligent homicide and was sentenced to two years of interim probation, community service, followed by a period of probation. When it was discovered that the two-year interim probation was illegal, petitioner appeared before a different judge for resentencing, the respondent in this proceeding. The respondent refused to abide by the plea agreement and informed the petitioner he would impose a prison sentence. Petitioner withdrew his plea and the case was set down for trial. Petitioner then brought this Article 78 petition seeking a writ of mandamus, a writ of prohibition and specific performance of the plea agreement. In a complex ruling too detailed to fairly summarize here, the relief was denied. The dissenter argued petitioner was entitled to specific performance of the plea agreement:

Mandamus to compel is an extraordinary remedy, commanding “an officer or body to perform a specified ministerial act that is required by law to be performed. It does not lie to enforce a duty that is discretionary” … . * * *

“… [I]mposing a criminal sentence is never ministerial” … . * * *

… [A] review of the merits leads us to conclude that the issuance of a writ [of prohibition] is unwarranted … . A “defendant [is not] entitled to specific performance of [a] plea bargain unless he [or she has] been placed in a ‘no-return position’ in reliance on the plea agreement” … . Matter of Hussain v Lynch, 2023 NY Slip Op 02049, Third Dept 4-20-23

Practice Point: This opinion should be consulted for the criteria for a writ of mandamus versus a writ of prohibition in the context of requiring a judge to abide by a plea agreement.

 

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THE CUSTODY RULING SHOULD NOT HAVE BEEN MADE WITHOUT A BEST INTERESTS HEARING; FATHER’S PARENTAL ACCESS SHOULD NOT HAVE BEEN CONDITIONED ON COMPLIANCE WITH TREATMENT (SECOND DEPT).

​The Second Department, reversing Family Court, held the custody determination should not have been made without a best interests hearing and father’s parental access should not have been conditioned on compliance with treatment:

“Custody determinations should generally be made only after a full and plenary hearing and inquiry” … .. “This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child” … . “A court opting to forgo a plenary hearing must take care to clearly articulate which factors were—or were not—material to its determination, and the evidence supporting its decision” … . “Similarly, visitation determinations should generally be made after a full evidentiary hearing to ascertain the best interests of the child” … .

Here, the Supreme Court erred in making a final custody determination without a hearing and without inquiring into the best interests of the parties’ child … . Moreover, the court failed to articulate the factors and evidence material to its determination … .

The Supreme Court also erred in suspending the father’s parental access without determining the best interests of the child … . Furthermore, the court improperly conditioned the father’s future parental access or reapplication for parental access rights upon his compliance with treatment … . Matter of Baez-Delgadillo v Moya, 2023 NY Slip Op 01994, Second Dept 4-19-23

Practice Point: Custody determinations usually should not be made absent a best interests hearing. Parental access should not be conditioned on the parent’s compliance with treatment.

 

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PLAINTIFF’S FAILURE TO FILE AN APPLICATION FOR AN ORDER OF REFERENCE IN THIS FORECLOSURE ACTION WAS NOT A GROUND FOR DISMISSAL OF THE COMPLAINT SUA SPONTE (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this foreclosure action, determined the plaintiff’s failure to comply with a directive to apply for an order of reference was not an appropriate ground for dismissing the complaint sua sponte:

“A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, the plaintiff’s failure to comply with the directive to file an application for an order of reference was not a sufficient ground upon which to direct dismissal of the complaint … . Accordingly, the Supreme Court should have granted the plaintiff’s motion to vacate order … and to restore the action to the active calendar. U.S. Bank N.A. v Turner, 2023 NY Slip Op 02023, Second Dept 4-19-23

Practice Point: Sua sponte dismissals of complaints should be rare. Here the failure to file an application for an order of reference in a foreclosure action was not an adequate justification for a sua sponte dismissal.

 

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A SEX OFFENDER MAY PETITION ANNUALLY FOR A MODIFICATION OF THE RISK LEVEL CLASSIFICATION; SUCH A PETITION IS NOT PRECLUDED BY PRIOR PETITIONS WITHIN A YEAR SEEKING OTHER RELIEF UNDER THE CORRECTION LAW (SECOND DEPT), ​

​The Second Department, reversing Supreme Court, noted that a sex offender can petition annually for a modification of the risk level classification, notwithstanding prior petitions within a year seeking other relief:

… [T]he petition … sought a downward modification of the defendant’s risk level classification. Pursuant to Correction Law § 168-o(2), any sex offender required to register or verify under SORA may petition annually for modification of his or her risk level classification … . As the defendant had not petitioned for a modification of his risk level classification within the prior year, he was not procedurally barred from seeking such relief in the instant petition. Therefore, upon receipt of the petition, the court should have followed the procedures set forth in Correction Law § 168-o(4) and conducted a hearing on the petition. People v Ghose, 2023 NY Slip Op 02021, Second Dept 4-19-23

Practice Point: A sex offender may petition annually for a modification of the risk level classification. Such a petition is not precluded by prior petitions within a year seeking other relief under the Correction Law.

 

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FATHER’S PARENTAL ACCESS SHOULD NOT HAVE BEEN CONDITIONED UPON HIS PARTICIPATION IN COUNSELING OR TREATMENT (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined father’s access to the child should not have been conditioned upon his participation in counseling or treatment:

“A court deciding a custody proceeding may direct a party to submit to counseling or treatment as a component of a [parental access] or custody order” … . However, a court may not direct that a parent undergo counseling or treatment as a condition of future parental access or reapplication for parental access rights … . Here, the Family Court erred in conditioning the filing of any future parental access petitions by the father upon his completion of a parenting class, and we modify the order … , so as to eliminate that condition … . Matter of Coley v Steiz, 2023 NY Slip Op 01995, Second Dept 4-19-23

Practice Point: In a custody proceeding, father’s parental access should not be conditioned upon his participation in counseling or treatment.

 

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IN 2011 PLAINTIFF WITHDREW THE MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT WITHOUT PREJUDICE AND SUBSEQUENTLY ENGAGED IN SETTLEMENT NEGOTIATIONS FOR YEARS; THE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED AND TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s action for a money judgment should not have been dismissed as abandoned and time-barred. In 2011 plaintiff withdrew its motion for summary judgment in lieu of complaint, without prejudice, and continued settlement negotiations for years, demonstrating plaintiff did not intend to abandon the lawsuit:

Supreme Court incorrectly determined that the action had been rendered a nullity by plaintiff’s withdrawal of his initial summons and motion for summary judgment in lieu of a complaint (CPLR 3213), as the parties’ course of conduct reflected an understanding that plaintiff was not discontinuing or abandoning the action. Plaintiff withdrew the summons and motion “without prejudice” after reaching a settlement agreement with Progressive and, by contrast, the settlement agreement expressly stated that the matter would be discontinued “with prejudice” upon Progressive’s full and complete compliance with its payment obligations. After Progressive defaulted, plaintiff and defendant, participated in further settlement discussions, court conferences, and motion practice for years before defendant invoked the argument that the action had been discontinued or abandoned. Rizzo v Progressive Capital Solutions, LLC, 2023 NY Slip Op 01948, First Dept 4-13-23

Practice Point: Although plaintiff withdrew the motion for summary judgment in lieu of complaint, without prejudice, in 2011, plaintiff continued settlement negotiations for years, demonstrating plaintiff did not intend to abandon the action. The dismissal of the action as abandoned was reversed.

 

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IN A HYBRID PROCEEDING SEEKING REVIEW UNDER CPLR ARTICLE 78 AND SEEKING A DECLARATORY JUDGMENT AND DAMAGES, A MOTION FOR SUMMARY JUDGMENT MUST BE MADE FOR BOTH; HERE THERE WAS NO MOTION TO DISMISS THE DECLARATORY JUDGMENT AND DAMAGES CAUSES OF ACTION; MATTER REMITTED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the declaratory judgment causes action should not have been dismissed because the motion for summary judgment did not seek that relief. Summary judgment on the CPLR Article 78 causes of action was properly granted, however:

“In a hybrid proceeding and action, separate procedural rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those which seek to recover damages and declaratory relief, on the other hand” … . “The Supreme Court may not employ the summary procedure applicable to a CPLR article 78 cause of action to dispose of causes of action to recover damages or seeking a declaratory judgment” … . “Thus, where no party makes a request for a summary determination of the causes of action which seek to recover damages or declaratory relief, it is error for the Supreme Court to summarily dispose of those causes of action” … .

Here, since no party made such a motion, the Supreme Court erred in summarily disposing of the petitioner/plaintiff’s third through eighth causes of action. Accordingly, we remit the matter to the Supreme Court … for further proceedings on those causes of action … . Matter of Kelly v Farmingdale State Coll., State Univ. of N.Y., 2023 NY Slip Op 01895, Second Dept 4-12-23

Practice Point: In a hybrid Article 78 and declaratory judgment/damages action, a motion for summary judgment must be made for both. Here the motion only concerned the Article 78 causes of action so the court should not have summarily disposed of the declaratory judgment/damages causes of action.

 

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