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THE JUDGE SHOULD NOT HAVE DELEGATED THE COURT’S AUTHORITY TO DECIDE VISITATION ISSUES TO A MENTAL HEALTH PROFESSIONAL; THE PROPER PROCEDURE FOR MODIFYING VISITATION ONCE FATHER HAS GAINED INSIGHT INTO THE CHILD’S NEEDS WAS EXPLAINED (FIRST DEPT). ​

The First Department, reversing (modifying) Family Court, determined the judge should not have delegated the court’s authority to decide visitation issues to a mental health professional:

… [T]he court improperly delegated to a mental health professional its authority to determine issues involving the child’s best interests — namely, when visits could resume and whether they should be supervised … . Accordingly, we modify to delete that provision of the order only. Upon an application to resume the father’s visits with the child, the applicant shall have the burden to demonstrate changed circumstances and that the modification requested is in the child’s best interests … , at which time the court may consider evidence that includes, but is not limited to, the testimony of a mental health expert about whether the father has gained insight into the child’s medical and emotional needs and the impact of his behavior on the child. Matter of M.K. v H. M., 2022 NY Slip Op 05663, First Dept 10-11-22

Practice Point: Family Court cannot delegate its authority to decide visitation issues to a mental health professional. The proper procedure for allowing father’s visitation to resume was explained, i.e., an application to resume visitation demonstrating a change in circumstances followed by an evidentiary hearing, including the testimony of a mental health expert.

 

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THE PARTIES HAD ALREADY STIPULATED TO RESTORE THE ACTION TO THE CALENDAR; THE JUDGE SHOULD HAVE GRANTED PLAINTIFF’S MOTION TO VACATE THE DISMISSAL OF THE ACTION FOR FAILURE TO APPEAR AT CONFERENCES OR OUTLINE REMAINING DISCOVERY (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to vacate the order dismissing the action based on plaintiff’s failure to appear at conferences or file a stipulation outlining discovery should have been granted. The parties had already stipulated to restore the action to the calendar and the court should have enforced the stipulation:

The motion court improvidently exercised its discretion when it denied plaintiff’s motion to vacate the order for failure to appear at conferences or to file a stipulation outlining the remaining discovery … . Defendants had already stipulated to restore the matter to the calendar, and stipulations between the parties are binding on the parties and generally enforced by the courts … . Moreover, the assertion by plaintiff’s counsel that two of the court’s notices were inadvertently routed to counsel’s spam folder constitutes an excusable law office failure … . Nor is there evidence in the record that counsel has engaged in a pattern of dilatory behavior … . Finally, plaintiff’s pleadings, along with the depositions of the witnesses, established a potentially meritorious cause of action … . Navarro v Joy Constr. Corp., 2022 NY Slip Op 05602, First Dept 10-6-22

Practice Point: Here excusable law office failure explained plaintiff’s failure to appear at conferences or outline remaining discovery. The parties had already stipulated to restore the action to the calendar. Plaintiff’s motion to vacate the dismissal of the action should have been granted. The parties’ stipulation should have been enforced, not ignored, by the judge.

 

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THE JUDGE DENIED DEFENDANT’S REQUEST FOR NEW COUNSEL WITHOUT INQUIRING ABOUT THE REASON FOR THE REQUEST; CONVICTION REVERSED (FIRST DEPT). ​

The First Department, reversing defendant’s conviction, determined the judge should have allowed the defendant to explain the reason he was requesting new counsel:

Defendant is entitled to a new trial because the court denied his request for new counsel without making any inquiry, and without giving defendant any opportunity to explain the basis for his request (see People v McCummings, 124 AD3d 502, 502-03 [1st Dept 2015]; People v Rodriguez, 46 AD3d 396 [1st Dept 2007], lv denied 10 NY3d 844 [2007]). People v Resheroop, 2022 NY Slip Op 05606, First Dept 10-6-22

Practice Point: Here the defendant asked for new counsel and the judge denied the request without asking for its basis. The appellate court reversed the conviction and ordered a new trial.

 

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THE BANK DID NOT DEMONSTRATE THE NOTICE OF DEFAULT COMPLIED WITH THE REQUIREMENTS IN THE MORTGAGE AGREEMENT BECAUSE THE NOTICE OF DEFAULT WAS NOT ATTACHED TO THE PAPERS; THE JUDGE SHOULD NOT HAVE DENIED DEFENDANT’S CROSS MOTION FOR A HEARING ON WHETHER PLAINTIFF NEGOTIATED IN GOOD FAITH AS REQUIRED BY CPLR 3408 (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the plaintiff bank did not demonstrate compliance with the provision in the mortgage agreement requiring certain advisements in the notice of default. The affidavit purporting to demonstrate compliance did not have the notice of default attached. In addition, Supreme Court should not have denied defendant’s cross motion for a hearing on whether plaintiff bank met its obligation to negotiate in good faith (CPLR 3408):

… [T]he plaintiff failed to demonstrate, prima facie, that it complied with the provision in the mortgage agreement requiring the plaintiff to send to the defendant a notice of default containing certain advisements and setting forth a 30-day cure period. The affidavit of its employee, Lindsay Hodges, was insufficient for this purpose inasmuch as Hodges failed to attach business records upon which she relied—specifically, the notice of default itself—in averring that notice was provided in compliance with the mortgage agreement. … Hodges’s averment was therefore hearsay lacking in probative value … . …

Supreme Court improperly denied the defendant’s cross motion for a hearing to determine whether the plaintiff met its obligation to negotiate in good faith pursuant to CPLR 3408(f). “The purpose of the good-faith requirement in CPLR 3408 is to ensure that both the plaintiff and the defendant are prepared to participate in a meaningful effort at the settlement conference to reach a resolution” … . To conclude that a party failed to negotiate in good faith pursuant to CPLR 3408(f), a court must determine that “the totality of the circumstances demonstrates that the party’s conduct did not constitute a meaningful effort at reaching a resolution” … .

… [T]he defendant’s submissions in support of her cross motion raised a factual issue as to whether the plaintiff failed to negotiate in good faith and deprived her of a meaningful opportunity to resolve the action through loan modification or other potential workout options … . Citimortgage, Inc. v Rose, 2022 NY Slip Op 05516, Second Dept 10-5-22

Practice Point: Here the mortgage agreement required that the notice of default include certain information. The affidavit submitted to prove the contents of the notice of default was hearsay because the notice was not attached.

 

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A DECISION TO RETURN TO THE REGULAR ACCESS SCHEDULE OF PARENTING TIME AFTER A PERIOD OF SUPERVISED PARENTAL VISITS MUST BE BASED UPON ADMISSIBLE EVIDENCE; WHERE FACTS REMAIN IN DISPUTE, A HEARING IS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a hearing should have been held before granting defendant’s motion to return to the regular access schedule of parenting time because some facts were still in dispute:

… Supreme Court should have conducted an evidentiary hearing prior to directing that the regular access schedule as set forth in the parties’ stipulation of settlement be implemented immediately. Although the court based its determination on information contained in the parties’ applications, reports from Kids in Common, and statements from counsel for the parties and the attorney for the child during multiple conferences, Kids in Common had not yet advised that the child was ready for a fully normalized access schedule, and a decision regarding child custody and/or parental access should be based on admissible evidence … . Where, as here, facts material to a determination of what parental access is in the best interests of the child remain in dispute, a hearing is required … . Stolzenberg v Stolzenberg, 2022 NY Slip Op 05554, Second Dept 10-5-22

Practice Point: At the time defendant made a motion to return to the regular access schedule of parenting time after a period of supervised visitation facts remained in dispute. The motion should not have been granted without first holding a hearing where only admissible evidence is considered.

 

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THE AMOUNT OF RESTITUTION IS PART OF THE SENTENCE AND MUST BE PRONOUNCED AT SENTENCING; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL AND SURVIVES A WAIVER OF APPEAL (SECOND DEPT).

The Second Department determined the judge’s failure to pronounce the amount of restitution at sentencing required vacating the imposition of restitution and remitting the matter for further proceedings. The issue does not need to be preserved for appeal and is not precluded by a waiver of appeal:

“CPL 380.20 and 380.40(1) collectively require that courts ‘must pronounce sentence in every case where a conviction is entered’ and that—subject to limited exceptions not relevant here—'[t]he defendant must be personally present at the time sentence is pronounced'” … . “Restitution is a component of the sentence to which CPL 380.20 and 380.40(1) apply” … . A violation of CPL 380.20 or 380.40(1) “may be addressed on direct appeal notwithstanding a valid waiver of the right to appeal or the defendant’s failure to preserve the issue for appellate review” … .

Here, it is undisputed that the precise dollar amount of restitution was not pronounced by the County Court at the time of sentencing, or at any other point on the record. “The County Court should have, but failed to, fix the amount and terms of restitution at the time it pronounced the sentence[s] of which restitution was to be a part” … . People v Long, 2022 NY Slip Op 05545, Second Dept 10-5-22

Practice Point: Restitution is part of the sentence and must be pronounced at sentencing. The issue need not be preserved for appeal and survives a waiver of appeal.

 

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ALTHOUGH THE JUDGE CAN PROPERLY AWARD COUNSEL FEES TO PETITIONER BASED UPON RESPONDENT’S VIOLATION OF AN ORDER OF PROTECTION, A HEARING IS NECESSARY TO DETERMINE THE AMOUNT OF THE FEE (SECOND DEPT).

The Second Department determined that the judge properly exercised discretion in awarding counsel fees to petitioner based upon appellant’s (Gorish’s) violation of an order of protection. However, the amount of counsel fees should have been determined by a hearing:

Under Family Court Act § 846-a, the court “may order the respondent to pay the petitioner’s reasonable and necessary counsel fees in connection with the violation petition where the court finds that the violation of its order was willful.” “The award of counsel fees is committed to the discretion of the Family Court” … . “[T]he reasonable amount and nature of the claimed services must be established at an adversarial hearing” … . Here, while the Family Court providently exercised its discretion in awarding counsel fees to the petitioner, the court erred in determining the amount of the counsel fees without a hearing. Matter of Sicina v Gorish, 2022 NY Slip Op 05535, Second Dept 10-5-22

Practice Point: The violation of an order of protection is a proper ground for awarding counsel fees to the petitioner, but the amount must be determined by a hearing.

 

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EVEN THOUGH FATHER REFUSED TO COOPERATE WITH AN INVESTIGATION RELATED TO HIS PETITION FOR CUSTODY, THE JUDGE SHOULD NOT HAVE AWARDED CUSTODY TO MOTHER WITHOUT FIRST HOLDING A HEARING (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the judge should not have awarded mother sole custody of the child without first holding a hearing:

Supreme Court directed that the Administration for Children’s Services (hereinafter ACS) conduct an investigation and directed supervised visits between the father and the child. The father failed to comply with the investigation, including refusing to provide his address to ACS, and he failed to complete the intake process for arranging the supervised visits. * * *

“[C]ustody 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” … .

Here, the Supreme Court erred in making a final custody determination without a hearing and without inquiring into the best interests of the child … . Matter of Jones v Rodriguez, 2022 NY Slip Op 05529, Second Dept 10-5-22

Practice Point: Despite father’s failure to cooperate with an investigation stemming from his petition for custody, the judge should have held a hearing before awarding custody to mother.

 

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THE PETITION FOR LEAVE TO SERVE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN DISMISSED BASED ON THE WRONG VENUE BECAUSE RESPONDENTS DID NOT OBJECT TO THE VENUE; IN THIS MEDICAL MALPRACTICE CASE BASED UPON A STILLBIRTH, MOTHER’S AND FATHER’S PETITIONS MUST BE CONSIDERED SEPARATELY; ALTHOUGH PETITIONERS DID NOT SHOW RESPONDENTS HAD TIMELY KNOWLEDGE OF THE POTENTIAL LAWSUIT, MOTHER DEMONSTRATED AN ADEQUATE EXCUSE AND RESPONDENTS’ LACK OF PREJUDICE; MOTHER’S PETITION WAS GRANTED AND FATHER’S WAS DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined mother’s (but not father’s) petition for leave to serve a late notice of claim should have been granted in this medical malpractice action stemming from a stillbirth. Supreme Court had dismissed the petition because it was brought in the wrong county. But, because the respondents did not object to the venue, the judge did not have the authority to dismiss the petition on that ground. Even though mother did not demonstrate the respondents had timely knowledge of the potential malpractice action, her petition should have been granted because she had an adequate excuse (mental health issues triggered by the stillbirth) and demonstrated respondents were not prejudiced by the delay. Father’s petition must be considered separately from mother’s and was denied (mother’s excuse did not apply to father):

… Supreme Court … erred when it raised the issue of improper venue sua sponte and dismissed this proceeding on that ground. The court should have instead decided the merits of the petition. * * *

Where leave is sought in one proceeding to pursue both a direct claim by an injured person and a derivative claim by his or her spouse, the spouse’s request for leave to serve a late notice of claim will not automatically be granted even if leave is granted to the injured person. Instead, the spouse’s request must be analyzed separately … . .* * *

While the actual knowledge factor [i.e., knowledge of the potential lawsuit] generally should be given “great weight” in the analysis … , the petitioners’ failure to satisfy that factor is not fatal to their petition for leave to serve a late notice of claim … . * * *

… [T]he petitioners met their initial minimal burden of providing a plausible argument supporting a finding of no substantial prejudice based on their contention that the respondents could defend themselves by reviewing the relevant medical records, interviewing witnesses, and consulting with experts. * * *

… [Mother] demonstrated a reasonable excuse for her delay due to her emotional and psychological injuries and the accompanying preoccupation with her well-being, as well as her attorney’s prompt investigation into the claim … . Matter of Balbuenas v New York City Health & Hosps. Corp., 2022 NY Slip Op 05526, Second Dept 10-5-22

Practice Point: The petition for leave to file a late notice of claim should not have been dismissed based on improper venue because respondents didn’t object to the venue.

Practice Point: The fact that petitioners did not demonstrate the respondents in this medical malpractice case had timely knowledge of the potential lawsuit was not fatal to the petition.

Practice Point: Here the potential medical malpractice action was based upon a stillbirth. Mother’s and father’s petitions must be considered separately.

Practice Point: Mother’s mental health issues stemming from the stillbirth constituted an adequate excuse for failing to timely serve a notice of claim.

Practice Point: Petitioners demonstrated the respondents were not prejudiced by the delay because of the medical records and the ability to interview witnesses.

Practice Point: Mother’s petition was granted, but father’s was denied because the only factor available to father was the absence of prejudice to the respondents.

 

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THE JUDGE INCORRECTLY PARAPHRASED THE JURY NOTE; CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s condition, determined that the judge did not adequately inform counsel of the contents of a jury note:

The record reflects that the court received the note from the jury and properly marked it as a court exhibit. The jury note stated, in relevant part, “[p]lease go over manslaughter vs murder 2 elements of the charges from your instructions” … . The court did not read the note verbatim and the record does not reflect that the court showed the note to the parties. Rather, the record reflects that the court informed the parties that the jury wanted the court to “go over the instructions for manslaughter and [m]urder in the [s]econd [d]egree” … . We conclude that by improperly paraphrasing the jury note, the court failed to give meaningful notice of the note … . Contrary to the People’s contention, the difference between the content of the note and the court’s words altered the meaning of the jury’s request … . People v Zenon, 2022 NY Slip Op 05446, Fourth Dept 9-30-22

Practice Point: Here the judge paraphrased the jury note in a way which altered its meaning. Conviction reversed.

 

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