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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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REPEATED FAILURES TO COMPLY WITH DISCOVERY ORDERS WITH NO EXCUSE WARRANTED STRIKING DEFENDANTS’ ANSWER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ failure to comply with discovery orders justified striking the answer:

Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs’ motion which was pursuant to CPLR 3126 to strike the defendants’ answer. The defendants’ willful and contumacious conduct can be inferred from their repeated failures, over an extended period of time, to comply with the plaintiffs’ discovery demands and the court’s discovery orders without an adequate excuse … . L.K. v City of New York, 2022 NY Slip Op 06236, Second Dept 11-9-22

Practice Point: Here the defendants offered no excuse for their failure to comply with discovery orders and the appellate court struck their answer.

 

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ALTHOUGH THE FAILURE TO FILE PROOF OF SERVICE IS NOT A JURISDICTIONAL DEFECT AND CAN BE CURED SUA SPONTE, HERE THE PLAINTIFFS DID NOT PROPERLY SEEK LEAVE TO EXCUSE THE FAILURE AND THE JUDGE DID NOT GRANT PLAINTIFFS LEAVE TO FILE A LATE PROOF OF SERVICE; THE SERVICE WHICH WAS ALLOWED TO STAND BY THE JUDGE WAS THEREFORE A NULLITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not granted plaintiffs leave to file late proof of service on defendant Joffe. Plaintiffs offered no excuse for the failure:

Supreme Court granted that branch of the plaintiffs’ motion which was for a declaration that Joffe was properly served with process pursuant to CPLR 308(2) and 313. The court did not acknowledge or address Joffe’s argument that the plaintiffs’ proof of service had not been filed with the court within the requisite time. The court recognized, but did not reach the merits of, that branch of the plaintiffs’ motion which was, in the alternative, pursuant to CPLR 306-b to extend the time to serve Joffe by 120 additional days. The court, in effect, denied the alternative branch of the plaintiffs’ motion on the ground that it was academic.

… CPLR 308(2) provides that “proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later.”

… [T]he failure to file timely proof of service does not constitute a jurisdictional defect … . Rather, “[t]he failure to file proof of service is a procedural irregularity . . . that may be cured by motion or sua sponte by the court in its discretion pursuant to CPLR 2004” … .

Here, since the plaintiffs did not properly seek leave to excuse their failure to timely file proof of service, and the Supreme Court did not grant them leave to file proof of service beyond the statutory window (see CPLR 308[2]), the proof of service relating to Joffe was a nullity … . Under the circumstances, the court should have denied that branch of the plaintiffs’ motion which was for a declaration that Joffe was properly served with process pursuant to CPLR 308(2) and 313. Chunyin Li v Joffe, 2022 NY Slip Op 06227, Second Dept 11-9-22

Practice Point: The failure to file proof of service is not a jurisdictional defect and can be cured by the judge sua sponte. Here however the plaintiffs did not properly seek leave to excuse their failure to timely file proof of service and the judge did not grant plaintiffs leave to file late proof of service, rendering the service on the defendant (allowed to stand by the judge) a nullity.

 

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A MOTION TO VACATE AN ORDER SHOULD BE TRANSFERRED TO THE JUDGE WHO MADE THE ORDER; THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) a motion to vacate an order should be transferred to the judge who made the order; and (2) the judge should not have, sua sponte, dismissed the foreclosure complaint:

A motion to vacate an order “shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it” (CPLR 2221[a]). “A motion made to other than a proper judge . . . shall be transferred to the proper judge” (CPLR 2221[c]). Here, instead of denying the first motion with leave to renew before Justice Schulman, the Supreme Court should have transferred the first motion to Justice Schulman … . …

“‘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 directives of the order … was not a sufficient ground upon which to direct dismissal of the complaint in the first action … . Citimortgage, Inc. v Dedalto, 2022 NY Slip Op 06105, Second Dept 11-2-22

Practice Point: A motion to vacate an order should be transferred to the judge who made the order.

Practice Point: A judge’s power to, sua sponte, dismiss a complaint is limited and should only be exercised in extraordinary circumstances (not present in this case).

 

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BECAUSE THE JUDGE DEVIATED FROM THE STATUTORY CRITERIA FOR THE CALCULATION OF TEMPORARY MAINTENANCE, THE JUDGE SHOULD HAVE EXPLAINED THE REASONS FOR THE DEVIATION; THE TEMPORARY MAINTENANCE AND CHILD SUPPORT AWARDS WERE VACATED (FIRST DEPT).

The First Department, vacating the award of pendente lite maintenance and child support, determined, because the temporary maintenance deviated from the statutory presumptive award,, the judge should have explained the reasons for the deviation:

To determine temporary maintenance, the motion court was required to apply Domestic Relations Law § 236(B)(5-a). While the court appears to have followed the calculations provided in that section to arrive at a presumptive award of temporary maintenance, it then deviated from the presumptive amount by directing the continued payment of the wife’s rent, cell phone bills, utilities, and other household expenses. This statutory formula is intended to cover all the spouse’s basic living expenses, including housing costs … . Where, as here, there is a deviation, the statute requires the court to explain the reasons for any deviation from the result reached by the formula factors … .

Accordingly, we vacate the pendente lite maintenance award and remand the matter for a reconsideration of the award in light of the directives of Domestic Relations Law § 236(B) (5-a), including the articulation of any other factors the court considers in deviating from the presumptive award …  As the amount of maintenance affects calculation of child support, we further vacate the child support award for recalculation based on the directives of Domestic Relations Law § 240(1-b)(b)(5) (iii)(I) and (vii)(C), which require, for child support purposes, income adjustments based on the amount of maintenance ordered. Severny v Severny, 2022 NY Slip Op 06094, First Dept 11-1-22

Practice Point: Any deviation from the statutory criteria for the calculation of temporary maintenance must be explained. The failure to explain the deviation required the vacation of the both the temporary maintenance and the child support awards.

 

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DEFENDANT’S FAILURE TO COMPLY WITH DISCOVERY ORDERS WAS WILLFUL AND CONTUMACIOUS WARRANTING STRIKING ITS ANSWER (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant’s (Motors’s) failure to turn over records despite four court orders and defendant’s attempt to mislead plaintiff about its compliance with the discovery requirements warranted striking defendant’s answer:

We find that Motors’s failure to produce these records was willful and contumacious, in view of the fact that it did not do so despite four courts orders, and in light of its interrogatory response implying that it had complied with its discovery obligations in an apparent attempt to mislead plaintiff (see CPLR 3216 …). Although the other defendants were represented by the same counsel as Motors, there is no indication that they exercised control over Motors or were in possession of Motors’s records … .

Motors’s dilatory behavior warrants striking its answer … . Lopez v Bronx Ford, Inc., 2022 NY Slip Op 06068, First Dept 10-27-22

Practice Point: Here defendant’s failure to comply with four discovery orders and its attempt to mislead plaintiff about its compliance was deemed willful and contumacious warranting striking defendant’s answer.

 

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THE JUDGE DID NOT READ THE JURY NOTE IN ITS ENTIRETY TO THE PARTIES AND THE JUDGE’S PARAPHRASE OF THE CONTENTS OMITTED SIGNIFICANT ASPECTS OF IT; THE FACT THAT THE JURY ANNOUNCED IT HAD REACHED A VERDICT BEFORE THE NOTE WAS CALLED TO THE PARTIES’ ATTENTION DID NOT MATTER; THE MODE OF PROCEEDINGS ERROR REQUIRED REVERSAL (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined the judge’s failure to read the entire note from the jury to the parties was a mode of proceedings error. The fact that the jury announced it had reached a verdict before the note was read was not determinative:

The trial court’s failure to read to the parties the entirety of a note submitted just before the jury reached a verdict deprived counsel of meaningful notice (see CPL 310.30 … ). The note was not shown to counsel, and the court’s paraphrase omitted significant aspects of the jury’s requests, including a request for reinstruction on the count charging second-degree assault, which was the only count on which defendant was found guilty. The fact that the jury announced that it had reached a verdict before the note was read did not cure this mode of proceedings error … . People v Heyworth, 2022 NY Slip Op 06072, First Dept 10-27-22

Practice Point: Here the jury had announced it had reached a verdict before the jury note was called to the parties attention. The judge did not read the note to the parties in its entirety and the judge’s paraphrase of its contents omitted important aspects of it. This was deemed a mode of proceedings error requiring a new trial.

 

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