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FAMILY COURT SHOULD HAVE HELD A HEARING ON PLAINTIFF’S MOTION TO HOLD DEFENDANT IN CIVIL CONTEMPT FOR FAILURE TO PAY CHILD SUPPORT AND DEFENDANT’S PETITION TO REDUCE THE CHILD SUPPORT PAYMENTS; FAMILY COURT HAD GRANTED DEFENDANT’S PETITION AND DENIED PLAINTIFF’S MOTION WITHOUT HOLDING A HEARING (SECOND DEPT). ​

The Second Department, reversing Family Court, determined a hearing was necessary on plaintiff’s motion to hold defendant in civil contempt for failure to pay child support and on defendant’s petition to reduce his child support payments:

… [T]he parties’ submissions presented issues of fact with regard to the defendant’s actual income … , which the Supreme Court failed to ascertain … and whether or not he was and is able to comply with his child support obligation under the judgment of divorce … . Under such circumstances, the court erred in granting the defendant’s petition to modify the child support provisions of the judgment of divorce to the extent of directing him to pay $25 per month in child support retroactive to July 10, 2018, and in denying that branch of the plaintiff’s motion which was to adjudge the defendant in civil contempt for failure to pay child support without conducting a hearing … . Zeidman v Zeidman, 2022 NY Slip Op 00906, Second Dept 2-9-22

 

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FATHER’S PETITION FOR A MODIFICATION OF CUSTODY, REQUESTING AN AWARD OF SOLE CUSTODY, SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, over a dissent, in a decision too comprehensive to fairly summarize here, determined father’s petition for a modification of custody (awarding him sole custody) should not have been granted:

… Family Court’s determination that there was a change of circumstances since the issuance of the prior custody order such that an award of sole legal and physical custody to the father was required to protect the best interests of the child lacks a sound and substantial basis in the record … . * * *

… Family Court also placed undue weight on an alleged suicide attempt by the mother in 2013, which predated the award of sole legal and residential custody to the mother in 2018 by several years, and thus, could not constitute a “change of circumstances since the [prior] custody determination” … . …

… Family Court failed to afford sufficient weight to conduct by the father which militated against awarding him sole custody. In particular, the mother testified that the father did not allow her to speak to the child by phone, Facetime, or other means while the child was at the father’s home. …

… Family Court failed to afford sufficient weight to conduct by the father which militated against awarding him sole custody. In particular, the mother testified that the father did not allow her to speak to the child by phone, Facetime, or other means while the child was at the father’s home. Matter of Paige v Paige, 2022 NY Slip Op 00866, Second Dept 2-9-22

 

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FATHER ALLEGED CHANGES IN HIS WORK SCHEDULE ALLOWED MORE TIME FOR PARENTAL ACCESS WITH THE CHILD; A HEARING SHOULD HAVE BEEN ORDERED ON FATHER’S MODIFICATION PETITION (SECOND DEPT).

The Second Department, reversing Family Court, determined father had submitted sufficient evidence to warrant a hearing on his petition to modify the custody or parental access arrangement:

… [F]ather stated that his probationary employment period had since ended, and his schedule was more consistent, and he was off from work on Saturdays and Sundays. Given this change, the father sought expanded parental access with the child. …

Entitlement to a hearing on a modification petition … is not automatic; the petitioning parent must make a threshold evidentiary showing of a change in circumstances demonstrating a need for modification in order to insure the child’s best interests … . Requiring parents to make this threshold showing before a hearing is ordered serves an important purpose because … litigation of custody and visitation issues is emotionally fraught and “can create trauma and uncertainty for the child, as well as trauma, uncertainty, and expense for the parents” … .

… Family Court improperly dismissed the father’s petition. … [T]he father’s assertions, which were supported by the requisite threshold evidentiary showing, warranted a hearing to resolve whether the existing parental access arrangement continued to serve the child’s best interests … . Matter of LaPera v Restivo, 2022 NY Slip Op 00863, Second Dept 2-9-22

 

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MANSLAUGHTER FIRST DEGREE IS NOT AN “ARMED FELONY” WITHIN THE MEANING OF CRIMINAL PROCEDURE LAW 720.10; COUNTY COURT WAS REQUIRED TO DETERMINE WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter to County Court, determined County Court was required to decide whether defendant in this Manslaughter First Degree case should be afforded youthful offender status:

… [W]e note that defendant’s “waiver of his right to appeal was invalid . . . and, in any event, [would] not bar his contention that [County] Court failed to properly consider youthful offender treatment” … . On the merits, … the court erred in determining that he was ineligible for youthful offender status. … [M]anslaughter in the first degree is not an “armed felony” for purposes of CPL 720.10 (2) (a) (ii) … . Thus, defendant’s eligibility for youthful offender status did not turn … on the existence of a statutory mitigating factor enumerated in CPL 720.10 (3) … . Inasmuch as defendant is otherwise eligible for youthful offender status on this conviction (see CPL 720.10 [1], [2]), the court was obligated to make a discretionary youthful offender determination before imposing sentence (see CPL 720.20 [1] … ). We therefore hold the case, reserve decision, and remit the matter to County Court to make and state for the record a determination whether defendant should be afforded youthful offender status … . People v Graham, 2022 NY Slip Op 00784, Fourth Dept 2-4-22

 

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NO APPEAL LIES FROM DICTA (SECOND DEPT).

The Second Department noted that no appeal lies from dicta. Here the plaintiff acknowledged her slip and fall complaint was properly dismissed against two defendants, but attempted to appeal the motion court’s statement that “the plaintiff is unable to establish where she fell:”

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained in a trip and fall accident. On her appeal from an order which granted the motion of the defendants … for summary judgment dismissing the complaint … , she concedes that those motions were properly granted. … [S]he challenges the statement of the Supreme Court that “the plaintiff is unable to establish where she fell.” However, no appeal lies from dicta … . Accordingly, the appeal must be dismissed. Kelly v City of New York, 2022 NY Slip Op 00654, Second Dept 2-2-22

 

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IN THIS SEXUAL ABUSE CASE, THE CHILD’S MENTAL HEALTH RECORDS SHOULD BE REVIEWED BY THE JUDGE IN CAMERA TO DETERMINE WHETHER ANY RECORDS ARE RELEVANT TO THE RESPONDENT’S CLAIM THE CHILD FABRICATED THE SEXUAL ABUSE ALLEGATIONS; FAMILY COURT PROPERLY DENIED RESPONDENT’S REQUEST FOR DISCOVERY OF THE RECORDS (FIRST DEPT). ​

The First Department, reversing (modifying) Family Court, held the judge properly denied discovery of the child’s mental health records in this sexual abuse proceeding, but the judge should review the records in camera to determine if any records support respondent’s position that the child fabricated the sexual abuse allegations:

Confidential mental health records may only be disclosed upon a finding by a court that “the interests of justice significantly outweigh the need for confidentiality” (Mental Hygiene Law § 33.13[c][1]). Pursuant to Family Court Act § 1038(d), the court must conduct a balancing test to weigh “the need of the [moving] party for the discovery to assist in the preparation of the case” against “any potential harm to the child [arising] from the discovery” … .

… [G]iven respondent’s need to prepare his defense, his right to impeach the child’s credibility as she is likely to be a witness, and the child’s diminished interest in the confidentiality of older records from an institution that is not currently providing services to her, we find that an in camera review of the … records is warranted … . …

… [W]e find that the Family Court properly denied his request for those records … . Were a court to grant such a request on the sparse showing in this case, virtually every child’s therapy records would be subject to exposure. Matter of Briany T. (Justino G.), 2022 NY Slip Op 00629, First Dept 2-1-22

 

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THE JUDGE ADOPTED A DECISION DRAFTED BY COUNSEL AS THE FINAL DETERMINATION OF THE CASE AND THEREBY VITIATED THE PURPOSE SERVED BY JUDICIAL OPINIONS; THE FOURTH DEPARTMENT VACATED THE JUDGMENT (FOURTH DEPT).

The Fourth Department, vacating the judgment, determined the judge erred by adopting a proposed decision drafted by counsel as the final determination of the case:

… [T]he court erred in adopting, almost verbatim, the proposed decision drafted by petitioners’ counsel as the final determination in this case … . “When a court adopts a party’s proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions” … . Even assuming, arguendo, that [respondent] CME could or should have objected to the court’s error, we would exercise our discretion to correct that error notwithstanding CME’s failure to object. We therefore vacate the judgment in its entirety and remit the matter to Supreme Court for consideration and determination of any pending issue or motion. Bruckel v Town of Conesus, 2022 NY Slip Op 00580, Fourth Dept 1-28-22

 

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IN THIS MODIFICATION OF CUSTODY PROCEEDING, FATHER PRESENTED SUFFICIENT EVIDENCE OF A CHANGE OF CIRCUMSTANCES TO WARRANT A HEARING ON THE BEST INTERESTS OF THE CHILD (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined respondent-father had presented sufficient evidence of a change in circumstances to warrant a hearing on the best interests of the child:

Where … ” ‘a respondent moves to dismiss a modification proceeding at the conclusion of the petitioner’s proof, the court must accept as true the petitioner’s proof and afford the petitioner every favorable inference that reasonably could be drawn therefrom’ ” … . Here, the father testified that, at the time the order of custody and visitation was entered into and for a short time thereafter, the mother and the father were communicating effectively and, in addition to scheduled visitation, were able to agree to further overnight and weekend visitation. That arrangement subsequently changed, however, and the father could not get the mother to agree to any visitation time apart from his scheduled day. The father further testified that communication with the mother regarding additional visitation time essentially ended after he moved to a new home 30 miles away. Taking the father’s testimony as true and considering the circumstances of the father’s move and the development of “extreme acrimony between the parties,” we conclude that the father met his burden of showing a change in circumstances warranting an inquiry into the best interests of the child … . Matter of Cooley v Roloson, 2022 NY Slip Op 00534, Fourth Dept 1-28-22

 

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WHEN THE TERMS OF THE PLEA AGREEMENT WERE DISCUSSED BOTH TWO AND THREE-YEAR SENTENCES WERE MENTIONED; DEFENDANT WAS SENTENCED TO THREE YEARS; DEFENDANT’S GUILTY PLEA WAS THEREFORE NOT VOLUNTARY; THE ISSUE WAS NOT PRESERVED BY A MOTION AND WAS CONSIDERED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, determined defendant was not clearly informed of the sentence, rendering his plea involuntary. Although the issue was not preserved by a motion, the Third Department considered the appeal in the interest of justice:

… [W]hen the terms of the plea agreement were placed on the record, it was stated that the prison term to be imposed would be two years. County Court then, in discussing defendant’s second felony offender status, stated that the prison term was three years but, thereafter, informed defendant that, if he violated any jail rules prior to sentencing, it would not be bound by the promise of a two-year prison term. The record does not reflect that there was any clarification or correction regarding the misstatements as to the agreed-upon sentence either during the plea colloquy or at sentencing before a three-year prison term was imposed. As “[t]he record thus fails to reveal that defendant was accurately advised of the essential terms and conditions of the plea agreement” … , we find that his plea was not knowing, voluntary and intelligent. People v Lumpkin, 2022 NY Slip Op 00477, Third Dept 1-27-22

 

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THE TRIAL JUDGE SHOULD HAVE GIVEN THE ADVERSE INFERENCE CHARGE WHICH HAD BEEN ORDERED AS A DISCOVERY SANCTION RE: A MISSING SURVEILLANCE TAPE; JURY VERDICT SET ASIDE (FIRST DEPT). ​

The First Department, reversing Supreme Court and setting aside the verdict, determined the trial judge should have given the adverse inference charge with respect to a missing video surveillance tape:

… [T]he court erred in declining to give an adverse inference charge with respect to a missing video surveillance tape. An order stating that plaintiff was entitled to such a charge had been issued during discovery upon plaintiff’s motion for sanctions pursuant to CPLR 3126. Thus, the adverse inference charge was a discovery sanction, not a prospective evidentiary ruling … . While the verdict is supported by sufficient evidence, that error was not harmless. Hegbeli v TJX Cos., Inc., 2022 NY Slip Op 00502, First Dept 1-27-22

 

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