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THE JUDGE IN THIS POST-DIVORCE PROCEEDING ENCOMPASSING FIVE APPEALS, WAS DEEMED TO HAVE MADE MANY RULINGS NOT SUPPORTED BY THE RECORD, IN PART BECAUSE NECESSARY HEARINGS WERE NOT HELD; THE IMPROPER RULINGS INCLUDED A RESTRICTION OF THE ATTORNEY-FOR-THE-CHILD’S (AFC’S) INTERACTIONS WITH THE CHILDREN (FOURTH DEPT).

The Fourth Department, reversing (and modifying) Supreme Court in this post-divorce proceeding encompassing several appeals, determined many of the court’s rulings were not supported by the record, due in part to the court’s failure to hold hearings. The court had imposed “house rules” for the children, refused to hold a Lincoln hearing, made contempt findings, modified father’s visitation, suspended father’s child support obligations, ordered family unification therapy, limited the attorney-for-the-child’s interactions with the children, and made several other rulings with which the appellate division found fault. The decision is far too detailed to fairly summarize here:

The mother and the AFC contend in appeal Nos. 1, 3, and 5 that the court erred in altering the terms of the parties’ custody and visitation arrangement and in imposing its house rules without conducting a hearing to determine the children’s best interests. We agree. We therefore modify the orders in appeal Nos. 1, 3, and 5 accordingly, and we reinstate the provisions of the agreement and remit the matter to Supreme Court for a hearing, including a Lincoln hearing, to determine whether modification of the parties’ custody and visitation arrangement is the children’s best interests.

Where there is “a dispute between divorced parents, the first concern of the court is and must be the welfare and the interests of the children” … , and “[a]ny court in considering questions of child custody must make every effort to determine what is for the best interest of the child[ren], and what will best promote [their] welfare and happiness” … . Consequently, 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 children’s best interests … . Burns v Grandjean, 2022 NY Slip Op 06577, Fourth Dept 11-18-22

Practice Point: Here the Fourth Department took issue with many, many rulings made by Supreme Court in this post-divorce proceeding. The decision encompassed five appeals and too many issues to fairly summarize. Many of Supreme Court’s rulings were deemed to have been unsupported by record, in large part because necessary hearings were not held.

 

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THE JUDGE SHOULD NOT HAVE LOOKED BEYOND THE PLEADINGS IN CONSIDERING THE MOTION TO AMEND THE COMPLAINT; THE MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the court abused its discretion by denying the motion to amend the complaint:

“Leave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit” ( … see CPLR 3025 [b]). “A court should not examine the merits or legal sufficiency of the proposed amendment unless the proposed pleading is clearly and patently insufficient on its face” … . Here, we conclude that the court erred in denying the motion inasmuch as there was no showing of prejudice arising from the proposed amendments … and the proposed amended complaint adequately asserts causes of action for slander of title … and removal of a cloud on title by reformation or cancellation of a deed … . In making its determination that the proposed causes of action were palpably insufficient, the court improperly looked beyond the face of the proposed pleading to the documents establishing the chain of title to plaintiffs’ properties and a 2011 deed from the Trustees of Grenell Island Chapel to defendant. DiGiacco v Grenell Is. Chapel, 2022 NY Slip Op 06576, Fourth Dept 11-18-22

Practice Point: Here Supreme Court abused its discretion in denying the motion to amend the complaint. The judge should not have looked beyond the pleading in deciding the motion to amend.

 

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BOTH PARTIES MOVED TO EXTEND THE DEADLINE FOR FILING A NOTE OF ISSUE BECAUSE DISCOVERY WAS NOT COMPLETE; DENYING THE MOTION MADE IT IMPOSSIBLE FOR THE CASE TO PROGRESS; SUPREME COURT REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion to extend the deadline for filing the note of issue should not have been denied because discovery was incomplete:

The motion court improvidently denied the motions of both parties to extend the deadline to file the note of issue and to complete discovery since discovery was not complete. Under the circumstances, the court’s denial of plaintiff’s motion left the parties in limbo where they could neither move forward to trial nor complete the discovery necessary to move forward to trial, thereby frustrating the strong public policy favoring open disclosure to allow the parties to adequately prepare (CPLR 3101[a] …). Additionally, as defendant demonstrated a need for additional discovery and to depose plaintiff’s expert, who was hired to calculate damages in this commercial case, its motion should have been granted (see 22 NYCRR 202.70, Rule 13[c] …). 361 Broadway Assoc. Holdings, LLC v Foundations Group I, Inc., 2022 NY Slip Op 06571, First Dept 11-17-22

Practice Point: if the judge makes it impossible for the case to progress, here by denying both parties’ motions to extend the deadline for filing the note of issue to complete discovery, the appellate court will reverse.

 

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HERE THE FAILURE TO OPPOSE THE MOTION FOR SUMMARY JUDGMENT WAS DUE TO NEGLECT WHICH DOES NOT WARRANT VACATUR; THE MOTION TO VACATE THE ORDER ENTERED ON PLAINTIFF’S DEFAULT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion to vacate the order entered upon plaintiff’s default should not have been granted:

Pursuant to CPLR 5015(a)(1), “[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person . . . upon the ground of . . . excusable default.” “A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion” . “Law office failure may qualify as a reasonable excuse for a party’s default if the claim of such failure is supported by a credible” and detailed explanation of the default … . The determination as to what constitutes a reasonable excuse is a matter of the court’s discretion, but mere neglect will not suffice … .

… [A] managing attorney at the law firm representing the plaintiff was notified of the February 28, 2018 adjourned deadline to submit opposition papers to the defendants’ motion, and a member of the firm entered a “follow up docket date” for February 7, 2018, “to ensure that the opposition was being handled” … . However, instead of “follow[ing] up with the managing attorney to make sure the opposition was assigned,” the member of the law firm returned the file to the file room. As the member of the law firm affirmed, “[i]t simply was not addressed properly.” … [T]he plaintiff did not move to vacate the order dated August 29, 2018, for approximately eight months, or 253 days, after being served with the order and notice of entry … .

… [T]he plaintiff’s failure to oppose the defendants’ motion was the equivalent of mere neglect and was therefore insufficient to warrant vacatur … . Sauteanu v BJ’s Wholesale Club, Inc., 2022 NY Slip Op 06509, Second Dept 11-16-22

Practice Point: A motion to vacate an order entered upon a party’s default may be granted on law-office-failure grounds but not if the matter was simply neglected. Here the plaintiff did not move to vacate the order for 253 days after service of the order and notice of entry. The court found the plaintiff’s failure to oppose the summary judgment was due to neglect and the motion to vacate the order should not have been granted.

 

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ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS MAINTENANCE-ARREARS ACTION SHOULD NOT HAVE BEEN AWARDED WITHOUT AN EVIDENTIARY HEARING (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined that the award of attorney’s fees and expert witness fees to defendant-wife who sued for and was awarded maintenance arrears:

… Supreme Court erred in awarding attorneys’ fees and expert witness fees requested by the defendant without evaluating the defendant’s claims concerning the extent and value of those services at an evidentiary hearing … . Accordingly, the matter must be remitted to the Supreme Court, Westchester County, for a hearing on those issues and a new determination thereafter of those branches of the defendant’s motions which were for an award of attorneys’ fees and expert fees. Leung v Gose, 2022 NY Slip Op 06476, Second Dept 11-16-22

Practice Point: Here the wife was awarded maintenance arrears but the judge should have held an evidentiary hearing before awarding attorney’s fees and expert witness fees to the wife.

 

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IF A TRIAL JUDGE DECIDES THE DAMAGES AWARDED BY THE JURY ARE EXCESSIVE, THE PROPER PROCEDURE IS TO ORDER A NEW TRIAL UNLESS PLAINTIFF STIPULATES TO THE REDUCED AWARD (SECOND DEPT).

The Second Department agreed with the trial judge’s reduction of damages awarded by the jury in this wrongful death case but noted that the judge should have ordered a new trial unless plaintiff stipulated to the lower damages amount:

… [W]hile the 21-year-old Bohdan [plaintiff’s decedent], who worked in the family business, lived with his parents, and cared for his younger sibling, was described as a wonderful, loving son who was especially helpful around the home, based on the record, the Supreme Court properly concluded that the jury awards for past pecuniary loss and future pecuniary loss were excessive. … . … [I]t was procedurally improper for the court to reduce the awards of damages for past pecuniary loss and future pecuniary loss without granting a new trial on those issues unless the plaintiff stipulated to reduce the verdict … . Vitenko v City of New York, 2022 NY Slip Op 06515, Second Dept 11-16-22

Practice Point: If the trial judge decides the damages awarded by the jury are excessive, the proper procedure is to order a new trial unless the plaintiff stipulates to the reduced amount.

 

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BG, AN ADOLESCENT OFFENDER (AO) WITHIN THE MEANING OF THE “RAISE THE AGE ACT,” ASSAULTED A MAN AND THREW HIM ON THE SUBWAY TRACKS; A BYSTANDER JUMPED DOWN TO HELP THE ASSAULT VICTIM; THE BYSTANDER WAS KILLED BY A SUBWAY TRAIN WHICH STOPPED BEFORE REACHING THE ASSAULT VICTIM; THE JUDGE RULED THE MATTER SHOULD BE TRANSFERRED TO FAMILY COURT; THE PEOPLE SOUGHT A WRIT OF PROHIBITION WHICH WAS DENIED (FIRST DEPT).

The First Department denied the People’s request for a writ of prohibition to prevent respondent judge from sending a criminal case involving an adolescent offender (AO) to Family Court pursuant to the “Raise the Age Law.” In criminal matters involving AO’s the Raise the Age Law allows judges to decide whether the matter should heard in Family Court. Here BG, the AO, assaulted the victim  in a subway station and threw the victim on the tracks. A bystander jumped down to try to help the victim. The train was able to stop before reaching the assault victim, but the bystander who tried to help the victim was killed by the train:

Justice Semaj rejected the People’s argument that BG engaged in “heinous” conduct by pushing the surviving victim onto the tracks and leaving him there unconscious, observing that this argument was “rebutted by the video footage offered by the People,” which showed that the surviving victim “was conscious at the time he was pushed on to the tracks and even if he became unconscious once on the tracks, [BG] and another young person are seen going into the tracks and seemingly moving [him], possibly inadvertently, but . . . out of harm’s way.” The court further noted that Hueston [the bystander] chose to jump onto the train tracks, and that BG left after he “was told to leave by [Hueston].” … . * * *

“A writ of prohibition against a judge may be issued only when a court acts or threatens to act without jurisdiction in a matter of which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction” … . “Prohibition cannot be used merely to correct errors of law, however egregious and however unreviewable” … . The Court of Appeals has stressed that, in the context of criminal proceedings, the writ should be issued “only when a court exceeds its jurisdiction or authorized power in such a manner as to implicate the legality of the entire proceeding, as for example, the prosecution of a crime committed beyond the county’s geographic jurisdiction” … . “Although the distinction between legal errors and actions in excess of power is not always easily made, abuses of power may be identified by their impact upon the entire proceeding as distinguished from an error in a proceeding itself” … . Matter of Clark v Boyle, 2022 NY Slip Op 06316, First Dept 11-10-22

Practice Point: Pursuant to the “Raise the Age Law” criminal cases involving adolescent offenders (AO’s) are reviewed by a judge who can chose to have the case heard in Family Court. The AO in this case assaulted a man and threw him onto subway tracks. The man survived but a bystander who tried to help him was killed by the train. The People sought a writ of prohibition to prevent the transfer to Family Court. The First Department laid out the strict criteria for a writ of prohibition and denied it.

 

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DIRECT APPEAL, AS OPPOSED TO AN ARTICLE 78, WAS APPROPRIATE IN THIS CONTEMPT PROCEEDING; MOTHER SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO ARGUE AGAINST THE CONTEMPT ADJUDICATIONS (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined direct appeal of the contempt adjudications in this custody matter, as opposed to an Article 78 action, was appropriate under the circumstances. The contempt adjudications were vacated because mother was not given the opportunity to argue she should not be held in contempt:

… [T]he mother’s challenge to the summary contempt adjudications is properly raised via direct appeal from the order under the circumstances of this case. Although a direct appeal from an order punishing a person summarily for contempt committed in the immediate view and presence of the court ordinarily does not lie and a challenge must generally be brought pursuant to CPLR article 78 to allow for development of the record (see Judiciary Law §§ 752, 755 …), an appeal from such an order is appropriately entertained where, as here, there exists an adequate record for appellate review … .

With respect to the merits, “[b]ecause contempt is a drastic remedy, . . . strict adherence to procedural requirements is mandated” … . Here, we conclude that the court committed reversible error by failing to afford the mother the requisite “opportunity, after being ‘advised that [she] was in peril of being adjudged in contempt, to offer any reason in law or fact why that judgment should not be pronounced’ ” … . S.P. v M.P., 2022 NY Slip Op 06377, Fourth Dept 11-10-22

Practice Point: A contempt adjudication based upon actions in the court’s presence are usually properly contested in an Article 78 proceeding. Under the circumstances here, direct appeal was appropriate. The contempt adjudications were vacated because mother (in this custody proceeding) was not given the opportunity to contest them.

 

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DEFENSE COUNSEL STATED DEFENDANT’S PRO SE MOTION TO WITHDRAW THE PLEA WAS WITHOUT MERIT; DEFENSE COUNSEL AND THE COURT INCORRECTLY TOLD THE DEFENDANT THE ISSUES RAISED IN THE MOTION TO WITHDRAW HAD BEEN DECIDED IN A PRIOR APPEAL: DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE (FOURTH DEPT).

The Fourth Department, remitting the matter to determined defendant’s pro se motion to withdraw his plea, determined defendant did not receive effective assistance of counsel. Counsel stated the pro se motion did not have merit, taking a position adverse to the client’s position. In addition, defense counsel and the court incorrectly told defendant that the issues raised in defendant’s motion to withdraw the plea had been determined in a prior appeal:

When defense counsel takes a position adverse to his or her client, “a conflict of interest arises, and the court must assign a new attorney to represent the defendant on the motion” … .

Here, by stating that there were no grounds for defendant’s pro se motion, defense counsel essentially said that it lacked merit, which constitutes taking a position adverse to defendant … .

It appears from the record that defense counsel advised defendant that the issues raised by defendant in his pro se motion to withdraw his plea had already been decided against him in the prior appeal. The court agreed with defense counsel’s interpretation of our ruling. Both defense counsel and the court were incorrect. People v Hemingway, 2022 NY Slip Op 06356, Fourth Dept 11-10-22

Practice Point: If defense counsel takes a position adverse to defendant’s position, the defendant has not received effective assistance and is entitled to new counsel. Here defense counsel stated defendant’s pro se motion to withdraw the plea was without merit. The matter was remitted for assignment of new counsel and consideration of defendant’s motion.

 

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THE JUDGE SHOULD NOT HAVE PRECLUDED MOTHER FROM BRINGING FURTHER PETITIONS WITHOUT COURT APPROVAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the judge should not have precluded mother from filing petitions for custody of a family offense without the court’s permission:

… [T]he provisions of the order … directing the mother to seek permission from the court before filing any additional petitions, whether for custody or alleging a family offense, constituted an improvident exercise of discretion. Here, the mother filed one family offense petition, ultimately determined to be unfounded, and filed one related petition to modify the parties’ custody arrangement. On this record, it cannot be said that the mother engaged in vexatious litigation or that her petitions were filed in bad faith … . Matter of McDowell v Marshall, 2022 NY Slip Op 06248, Second Dept 11-9-22

Practice Point: Mother should not have been precluded from bringing further custody of family offense petitions without court permission. She had not filed petitions in bad faith.

 

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