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DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POSTRELEASE SUPERVISION AT THE TIME OF THE GUILTY PLEA; PLEA VACATED (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined the plea was not knowingly and voluntarily entered because defendant was not informed of the period of postrelease supervision:

… [F]or a plea of guilty to be knowing, intelligent, and voluntary, the court must inform the defendant of either the specific period of postrelease supervision that will be imposed or, at the least, the maximum potential duration of postrelease supervision that may be imposed … . People v Benitez, 2021 NY Slip Op 03600, Second Dept 6-9-21

Similar issue and result in People v Dillon, 2021 NY Slip Op 03607, Second Dept 6-9-21

 

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THE J.H.O./REFEREE WAS NOT AUTHORIZED BY CPLR 3104 OR ANY ORDER ISSUED BY THE COURT TO CONSIDER AN ALLEGED DEFICIENCY IN THE AMENDED BILL OF PARTICULARS; THE ISSUE PRESENTED A QUESTION OF LAW WHICH COULD NOT HAVE BEEN AVOIDED BELOW, THEREFORE IT MAY BE RAISED FOR THE FIRST TIME ON APPEAL; ORDER STRIKING THE COMPLAINT VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Judicial Hearing Officer (J.H.O)/Referee did not have the authority to grant defendants motion to strike the complaint on the ground the amended bill of particulars did not comply with prior court orders. A bill of particulars is not part of any disclosure procedure which CPLR 3104 authorizes a referee to supervise. Because this is question of law could not have been avoided if brought up below, the issue can be raised for the first time on appeal:

“Since a bill of particulars is not a disclosure device but a means of amplifying a pleading, the present dispute over the contents of the [plaintiffs’ amended] bill[s] of particulars is not part of any disclosure procedure that CPLR 3104 authorizes a referee to supervise” … . Since CPLR 3104 did not authorize the J.H.O./Referee to determine the defendants’ separate motions, among other things, to strike the complaint insofar as asserted against each of them based upon the defendants’ objections to the plaintiffs’ amended bills of particulars, and there exists no order of reference authorizing the J.H.O./Referee to determine the defendants’ motions, the J.H.O./Referee was without authority to determine the defendants’ separate motions, inter alia, to strike the complaint insofar as asserted against each of them … . Kramarenko v New York Community Hosp., 2021 NY Slip Op 03450, Second Dept 6-2-21

 

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THE JURY’S FINDING THAT PLAINTIFF IN THIS SLIP AND FALL CASE WAS NEGLIGENT BUT THAT DEFENDANT WAS 100% RESPONSIBLE WAS AGAINST THE WEIGHT OF THE EVIDENCE; ALLOWING PLAINTIFF’S DOCTOR TO TESTIFY DEFENDANT’S DOCTOR WAS HIRED BY AN INSURANCE COMPANY, WITHOUT GIVING A CURATIVE INSTRUCTION, WAS REVERSIBLE ERROR (FIRST DEPT).

The First Department, ordering a new trial on liability and damages in this slip and fall case, determined the finding that plaintiff was negligent but that defendant was 100% responsible was against the weight of the evidence. In addition, allowing plaintiff’s physician to mention that defendant’s physician was hired by an insurance company was reversible error. Both parties had requested Pattern Jury Instruction (PJI) 2:36 on comparative fault. The judge denied that request and instructed the jury with PJI 2:90 which addresses comparative fault. The First Department did not find the denial of the request for PJI 2-36 was error, but noted that the jury clearly misunderstood the concept of comparative fault. Plaintiff alleged she tripped over a stool which was two-feet high:

It is clear that the jury’s verdict, finding that plaintiff was negligent, but that her negligence was not a substantial factor in causing the accident was against the weight of the evidence, and indicates that the jury had a fundamental misunderstanding of the concept of comparative negligence. In this case, “the issues of negligence and proximate cause are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause.” * * *

Evidence that a defendant carries liability insurance is generally inadmissible, as it is both collateral and prejudicial … . The passing reference to insurance or similar benefits will not necessarily result in reversal … . However, if the testimony goes beyond mere mention of insurance, then a mistrial may be warranted … . Here, plaintiff’s doctor’s testimony, together with the court’s failure to immediately give a curative instruction was prejudicial, and constituted reversible error, further warranting a new trial. Campbell v St. Barnabas Hosp., 2021 NY Slip Op 03404, First Dept 6-1-21

 

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FAMILY COURT SHOULD NOT HAVE ORDERED THE PARTIES TO EQUALLY SHARE THE COSTS OF FATHER’S SUPERVISED VISITATION WITHOUT EVALUATING THE PARTIES’ FINANCES (SECOND DEPT).

The Second Department determined Family Court properly found father had committed the family offense of harassment and properly ordered therapeutic supervised parental access for father. However, Family Court should not have order the parties to equally share the expense of supervised parental access without evaluating the parties’ ability  to pay:

The Family Court should not have directed the parties to equally share the costs of the father’s supervised parental access, without evaluating the parties’ “economic realities,” including the father’s ability to pay and the actual cost of each visit … . Accordingly, we remit the matter to the Family Court, Orange Country, for a hearing to resolve those issues, and a determination thereafter regarding the parties’ respective shares of the costs for the father’s supervised therapeutic parental access. Matter of Livesey v Gulick, 2021 NY Slip Op 03321, Second Dept 5-26-21

 

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FATHER’S ABILITY TO BRING FUTURE PETITIONS FOR CUSTODY SHOULD NOT HAVE BEEN CONDITIONED UPON HIS UNDERGOING TREATMENT OR COUNSELING (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s ability to bring future custody petitions should not have been condition upon father’s undergoing 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” … . “A court may not, however, order 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 petitions by the father to modify parental access upon his successful completion of an anger management class and a negative drug test, and we modify the order so as to eliminate that condition. Matter of Hardy v Hardy. 2021 NY Slip Op 03320. Second Dept 5-26-21

 

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DEFENDANT’S WAIVER OF HIS RIGHT TO COUNSEL WAS INVALID BECAUSE DEFENDANT WAS NOT AWARE OF HIS SENTENCING EXPOSURE AND THE JUDGE DID NOT CONDUCT A SEARCHING INQURY; THE EVIDENCE OF CRIMINAL MISCHIEF AND AUTO STRIPPING WAS LEGALLY INSUFFICIENT AND THE CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the waiver of defendant’s right to counsel was invalid and the evidence of criminal mischief and auto stripping was legally insufficient, and the convictions were against the weight of the evidence:

Defendant’s waiver of his right to counsel was invalid, because the record “does not sufficiently demonstrate that defendant was aware of his actual sentencing exposure” … . “The critical consideration is defendant’s knowledge at the point in time when he first waived his right to counsel”; the court’s subsequent warnings about sentencing “were incapable of retrospectively ‘curing’ the . . . court’s error” … . Moreover, the court “improperly granted defendant’s request to proceed pro se without first conducting a searching inquiry regarding defendant’s mental capacity to waive counsel” … , in light of his history of mental illness, as well as his statement, in response to the court’s reference to the “tremendous pitfalls of representing yourself,” that “[n]one of that has been explained,” even after the court had warned him of a number of such risks.

Defendant’s conviction of third-degree criminal mischief as to one of the vehicles he damaged (count four), and his conviction of first-degree auto stripping, were unsupported by legally sufficient evidence (a claim we review in the interest of justice), and were also against the weight of the evidence … . The People failed to establish that particular charge of criminal mischief because the evidence did not show that “the reasonable cost of repairing the damaged property” … . Such costs “may not be established by hearsay”… . The People relied on a nonexpert witness who was not the owner of the vehicle and did not pay for the repairs, but testified that he looked at a receipt and that the repair costs were $600 … , and the People do not invoke any exception to the hearsay rule. In the absence of admissible evidence as to the repair costs for that vehicle, the People also failed to establish that the aggregate damage to all the vehicles exceeded $3,000, the minimum value for first-degree auto stripping … . People v Jackson, 2021 NY Slip Op 03288, First Dept 5-25-21

 

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THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT BECAUSE PLAINTIFF MISSED A STATUS CONFERENCE; THE SUA SPONTE ORDER IS NOT APPEALABLE; PLAINTIFF CORRECTLY MOVED TO VACATE THE ORDER AND APPEALED THE DENIAL (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the complaint because plaintiff missed a status conference. The First Department noted that the sua sponte dismissal order was not appealable as of right. Therefore plaintiff correcting moved to vacate the order and then appealed the denial of that order:

Contrary to defendant Hudson’s argument, the status conference order sua sponte dismissing the complaint was not appealable as of right (CPLR 5701[a][2] …). Plaintiff followed proper procedure by “apply[ing] to vacate the order and then appeal[ing] from the denial of that motion so that a suitable record [could] be made and counsel afforded the opportunity to be heard on the issues” … .

The court improvidently exercised its discretion in imposing the extreme penalty of dismissal without giving plaintiff notice that such a sanction might be imminent … . Further, the sanction of dismissal was not warranted, and would not have been warranted even upon a motion on notice, based on plaintiff’s noncompliance with one order … . MJC Elec., Inc v Hudson Meridian Constr. Group, LLC, 2021 NY Slip Op 03258, First Dept 5-20-21

 

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A GENERAL RELEASE AND WAIVER WHICH IS CONTRADICTED BY ACTIONS WHICH POST-DATE THE DOCUMENT CANNOT BE CONSTRUED AS A RELEASE; THE JUDGE DID NOT HAVE THE POWER, SUA SPONTE, PURSUANT TO CPLR 5019, TO VACATE THE COURT’S OWN ORDER (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined (1) actions which post-date a release and waiver which conflict with the terms of the release and waiver indicate the document can not be construed as a release, and (2) the judge did not have the authority, sua sponte, to vacate the court’s own order:

“‘Where a waiver form purports to acknowledge that no further payments are owed, but the parties’ conduct indicates otherwise, the instrument will not be construed as a release'” … . …

The Supreme Court erred in, sua sponte, vacating the December 2016 order. “‘Pursuant to CPLR 5019(a), a trial court has the discretion to correct an order or judgment which contains a mistake, defect, or irregularity not affecting a substantial right of a party, or is inconsistent with the decision upon which it is based. However, a trial court has no revisory or appellate jurisdiction, sua sponte, to vacate its own order or judgment'” … . Additionally, “[p]ursuant to CPLR 5015(a), a court may relieve a party from an order or judgment, but only ‘on motion of [an] interested person’ and ‘with such notice as the court may direct” … .

Here, to the extent that the Supreme Court was acting pursuant to CPLR 5019(a), the court erred, since that statute cannot be used by courts to vacate prior orders or judgments or “reconsider[ ] the merits of summary judgment” … . United Airconditioning Corp. v Axis Piping, Inc.2021 NY Slip Op 03210, Second Dept 5-19-21

 

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MANDAMUS PETITION TO COMPEL JUDGES TO ISSUE A WRITTEN ORDER DECIDING PETITIONER’S MOTION TO REARGUE HIS MOTION TO VACATE HIS CONVICTION GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, granted the petition to compel judges to issue a written order denying petitioner’s motion to reargue a motion to vacate his conviction:

Under the circumstances of this case, the petitioner demonstrated a clear legal right to a written order determining his motion for leave to reargue his prior motion pursuant to CPL 440.10, in the action entitled People v Cruz … and mandamus properly lies to compel the respondents to issue that written order, as well as an order determining the petitioner’s motion to reargue the “bench decision” … . Matter of Cruz v D’Emic, 2021 NY Slip Op 03175, Second Dept 5-19-21

 

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FAMILY COURT SHOULD NOT HAVE FOUND NEW YORK DID NOT HAVE JURISDICTION OVER THIS CUSTODY DISPUTE WITHOUT HOLDING A HEARING PURSUANT TO THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT TO DETERMINE WHETHER NEW YORK OR YEMEN WAS THE CHILDREN’S HOME STATE (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should not have found New York did not have jurisdiction over this custody dispute without holding a hearing pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The issue is whether New York or Yemen was the children’s home state:

Pursuant to Domestic Relations Law § 70, “[w]here a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, may award . . . custody of such child to either parent.” Here, since the children reside outside of this State, reference must necessarily be made to the Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law art 5-A; hereinafter UCCJEA), which provides, inter alia, that “a court of this state has jurisdiction to make an initial child custody determination only if: (a) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state” (Domestic Relations Law § 76[1][a] …). The UCCJEA defines “home state” as “the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75-a[7]).

Here, the Family Court was required to hold a hearing as to the issue of whether New York or Yemen was the children’s home state, as there are disputed issues of fact regarding the circumstances under which the parties moved with the children from New York to Yemen … . Matter of Kassim v Al-Maliki, 2021 NY Slip Op 02800, Second Dept 5-5-21

 

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