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THE JUDGE’S REFUSAL TO HOLD A PRE-TRIAL HUNTLEY HEARING ON THE VOLUNTARINESS OF DEFENDANT’S STATEMENTS WAS REVERSIBLE ERROR (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the judge’s refusal to hold a Huntley hearing to determine the voluntariness of defendant’s statements until several witnesses testified at trial was reversible error:

“When [a] motion [to suppress evidence] is made before trial, the trial may not be commenced until determination of the motion” (CPL 710.40 [3] …). Here, defendant moved to suppress his statements to the police on the ground that they were involuntarily made (see CPL 710.20 [3]), but the court did not rule on the motion prior to trial and repeatedly refused to conduct a pretrial Huntley hearing, even after the People requested a Huntley hearing at the outset of the trial. Instead, the court granted the People’s request for a Huntley hearing over defendant’s objection after nine of the ten prosecution witnesses had already testified. Following that hearing, the court found the statements to be voluntary and thus admissible.

The error is not harmless. It is well established that, “unless the proof of the defendant’s guilt, without reference to the error, is overwhelming, there is no occasion for consideration of any doctrine of harmless error” … . Here, the evidence was not overwhelming … . The central factual question in this case was identity. The evidence of identity was that defendant was apprehended coming out of a building located on the block towards which the culprit had been seen running, he fit the description of the culprit, and he was identified by three eyewitnesses after a showup procedure. On the other hand, defendant did not have in his possession the fruits of the crime or the firearm used in the crime, nor was he dressed like the culprit. Moreover, showup identification procedures are inherently suggestive … , and the culprit had been wearing a partial face covering at the time of the crime, which further undermined the reliability of the identifications … . People v Coffie, 2021 NY Slip Op 01884, Fourth Dept 3-26-21

 

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JUDGE SHOULD NOT HAVE, SUA SPONTE, AFTER A COMPLIANCE CONFERENCE, ISSUED A PRECLUSION ORDER BECAUSE THERE WAS NO MOTION PENDING (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge should not have, sua sponte, issued a preclusion order after a compliance conference because no motion was pending:

Order … which, upon granting plaintiff’s motion to reargue, reinstated his lost earnings claim but precluded the claim for years which tax returns are not produced to defendants, unanimously reversed, without costs, and the claim reinstated without limitation.

The underlying preclusion order should not have been issued sua sponte at a compliance conference, with no motion pending … . Sullivan v Snow, 2021 NY Slip Op 01873, First Dept 3-25-21

 

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THE REQUEST TO POLL THE JURY SHOULD NOT HAVE BEEN DENIED; THE JUDGE SHOULD NOT HAVE DISCHARGED THE JURY FOREMAN FOR ARGUING WITH ONE OR MORE JURORS WITHOUT INTERVIEWING ALL INVOLVED (FIRST DEPT).

The First Department, ordering a new trial in this personal injury action, determined the trial judge should not have denied plaintiff’s request to poll the jury and the jury foreman should not have been discharged for arguing with one or more jurors without interviewing all involved:

It is fundamental error to deny a party’s request to poll the jury … . Defendants’ argument that the issue was not preserved for appeal is unavailing, as plaintiff’s counsel clearly requested that the jury be fully polled … . …

It was also reversible error for the court to discharge the jury foreman, who was alleged to have been in a verbal altercations with another juror during deliberations, without interviewing the jury foreman and the other involved juror or jurors to determine the nature and extent of the disagreement … . That jurors have heated exchanges, does not, without more, form a valid basis for substitution of a juror without the consent of the parties … . Garcia v Rosario, 2021 NY Slip Op 01555, First Dept 3-18-21

 

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WHERE THERE IS AN INCONSISTENCY BETWEEN AN ORDER OR A JUDGMENT AND THE DECISION UPON WHICH IT IS BASED, THE DECISION CONTROLS (FIRST DEPT).

The First Department noted that where a judgment or order is inconsistent with the decision upon which it is based, the decision controls:

“A written order [or judgment] must conform strictly to the court’s decision and in the event of an inconsistency between a judgment and a decision or order upon which it is based, the decision or order controls” … . “Such an inconsistency may be corrected either by way of a motion for resettlement or on appeal” … .

The motion court’s decision, amended to grant plaintiff’s motion for summary judgment on his first cause of action for breach of the … modified agreement, also found that plaintiff was entitled to a money judgment in his favor for past due amounts owed. Because there is a conflict between the relief the motion court found plaintiff was entitled to in its decision, and the relief granted to plaintiff in the judgment, which made no provision for a money judgment as to plaintiff’s first cause of action, the court’s decision controls. Schwartzbard v Cogan, 2021 NY Slip Op 01523, First Dept 3-16-21

 

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THE JUDGE SHOULD NOT HAVE DELEGATED THE COURT’S AUTHORITY TO DETERMINE MOTHER’S PARENTAL ACCESS; THE JUDGE LEFT IT TO MOTHER AND HER CHILD TO DETERMINE MOTHER’S PARENTAL ACCESS (SECOND DEPT).

The Second Department, reversing Family Court, determined the judge should not not have left it to mother and her child to determine when mother will have parental access. The child lives with stepmother who is married to father. Father, who is incarcerated, did not want mother to have parental access:

“A court may not delegate its authority to determine parental access to either a parent or a child” … . “While a child’s views are to be considered in determining custody or parental access, they are not determinative” … . Moreover, “[a]n access provision which is conditioned on the desires of [a] child[ ] tends to defeat the right of parental access” … .

Here, the order appealed from directed that the mother was only entitled to parental access with the child as often as she and the child agree. That provision effectively conditions the mother’s parental access on the child’s wishes and leaves the determination as to whether there should be any parental access at all to the child. Moreover, the Family Court’s directive as to parental access creates the potential for influence upon the child, since the stepmother, with whom he lives, is married to the father, who is opposed to the mother having any parental access with the child. Thus, the court’s directive as to parental access must be set aside … . Matter of Clezidor v Lexune, 2021 NY Slip Op 01409, Second Dept 3-10-21

 

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ABSENT A REQUEST FROM A PARTY, SUPREME COURT SHOULD NOT HAVE SUMMARILY DISMISSED THE DECLARATORY JUDGMENT ASPECT OF THIS HYBRID ARTICLE 78/DECLARATORY JUDGMENT ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the court should not have summarily dismissed the declaratory judgment aspect of this hybrid declaratory judgment/Article 78 action. The Second Department found that Supreme Court had properly affirmed the denial of a special use permit for a dog kennel, but the Second Department reinstated the request for a declaratory judgment on the constitutionality of a related local law:

… [T]he Supreme Court should not have summarily dismissed the cause of action for a judgment declaring that Town of Lewisboro Code § 220-23(D)(7) is unconstitutional. “In a hybrid proceeding and action, separate procedural rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those to recover damages and for declaratory relief, on the other hand” … . “The Supreme Court may not employ the summary procedure applicable to a CPLR article 78 cause of action to dispose of causes of action to recover damages or seeking a declaratory judgment” … . “‘Thus, where no party makes a request for a summary determination of the causes of action which seek to recover damages or declaratory relief, it is error for the Supreme Court to summarily dispose of those causes of action'” … . Here, since no party made such a request, the court erred in summarily disposing of the cause of action for a judgment declaring that Town of Lewisboro Code § 220-23(D)(7) is unconstitutional. Matter of Muller v Zoning Bd. of Appeals Town of Lewisboro, 2021 NY Slip Op 01416, Second Dept 3-10-21

 

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BUDGETARY CONCERNS RELATED TO THE COVID-19 PANDEMIC JUSTIFED THE DENIAL OF CERTIFICATION TO CONTINUE SERVING ON THE BENCH TO 46 SUPREME COURT JUSTICES WHO REACHED THE MANDATORY RETIREMENT AGE OF 70 IN 2020 (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Lynch, over a partial dissent, determined the Administrative Board of the NYS Unified Court System did not act arbitrarily and capriciously when it denied certification to 46 of 49 Supreme Court Justices who reached the age of 70 in 2020. Retirement at age 70 is mandated by the NYS Constitution. But certification to continue serving on the bench can be granted by the Board. Here the Board based its decision to deny certification to 46 justices on budgetary concerns resulting from the COVID-19 pandemic:

The Board minutes explain that the Board “declined to certify 46 of the 49 [Justices] applying for certification owing to current severe budgetary constraints occasioned by the coronavirus pandemic. Three [Justices], having specialized additional assignments[,] were certified.” The Board’s certification of three applicants reflects both an individualized assessment and a recognition — “at least impliedly” — that additional judicial services are necessary … . …”[W]hether the services of a particular Justice are ‘necessary to expedite the business of the court’ encompasses much more than a mechanical inquiry into the size of the courts’ docket divided by the number of Justices” … . Certainly, it should be recognized that the continued services of the petitioner Justices would advance the needs of the court in managing an expanding caseload. That positive contribution, however, is not the deciding factor, as the Board is charged with balancing the costs of certification with the overall needs of the court system … . … [T]he Board made the extremely difficult judgment call that certification would prove too costly under the economic dilemma presented. … [C]ertification would significantly disrupt overall court operations given that the alternative savings mechanism would require more than 300 layoffs of nonjudicial personnel. Achieving the proper balance for the court system was for the Board to determine. … In our view, the Board acted in accord with the governing standard and within the scope of its broad authority in basing its ultimate decision on the overall needs of the court system. Matter of Gesmer v Administrative Bd. of the N.Y. State Unified Ct. Sys., 2021 NY Slip Op 01376, Third Dept 3-9-21

 

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THE FORMER SURROGATE, NOW IN PRIVATE PRACTICE, CANNOT REPRESENT A CLIENT IN A CASE WHICH WAS BEFORE HER AS SURROGATE (THIRD DEPT).

The Third Department, reversing Surrogate’s Court, over a two-justice dissent, determined the former Surrogate, who is now in private practice, cannot represent a client in a proceeding which was before her as Surrogate:

Respondent contends that Surrogate’s Court erred in not granting her motion to disqualify petitioner’s counsel. We agree. Just as a judge may not preside over a case that he or she was previously involved in as an attorney (see Judiciary Law § 14; 22 NYCRR 100.3 [E] [1] [b] [i]), an attorney may not appear for a client in a case that he or she previously presided over as a judge (see Judiciary Law § 17; … see also Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.12 [a]). To that end, Judiciary Law § 17 provides that a “former judge or surrogate shall not act as attorney or counsellor in any action, claim, matter, motion or proceeding, which has been before him [or her] in his [or her] official character.” This prohibition is “absolute” and “establishes a bright-line disqualification rule” … . By our reading, this statute clearly operates to disqualify petitioner’s counsel — who previously presided as the Surrogate over the probate of decedent’s will and the issuance of letters testamentary and letters of trusteeship to respondent — from now representing petitioner in his claims against respondent involving the same estate and the same trust … . To the extent that Surrogate’s Court determined that Rules of Professional Conduct (22 NYCRR 1200.00) rule 1.12 (a) would permit the former Surrogate to represent petitioner in this matter — a finding with which we do not agree — this rule cannot be relied upon to permit a representation agreement that is otherwise precluded by Judiciary Law § 17. Matter of Gordon, 2021 NY Slip Op 01294, Third Dept 3-4-21

 

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FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES IS AN AFFIRMATIVE DEFENSE WHICH CAN BE WAIVED; THE JUDGE, THEREFORE, SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE ARTICLE 78 PETITION ON THAT GROUND; PETITION REINSTATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Article 78 proceeding should not have been dismissed, sua sponte, on the ground petitioner had not exhausted his administrative remedies, which is an affirmative defense to be raised by the respondent, not the judge:

The Supreme Court’s sua sponte dismissal of the proceeding for the petitioner’s failure to exhaust his administrative remedies was error. “Failure to exhaust administrative remedies is not an element of an article 78 claim for relief, but an affirmative defense which must be raised by respondent either in an answer or by preanswer motion or else be deemed waived” … . Matter of Bobar v Transit Adjudication Bur., 2021 NY Slip Op 01255, Second Dept 3-3-21

 

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THE JUDGE WHO DISMISSED THE ACTION PURSUANT TO CPLR 205 (a) FOR FAILURE TO PROSECUTE DID NOT PLACE ON THE RECORD THE SPECIFIC CONDUCT CONSTITUTING NEGLECT; THEREFORE THE ACTION WAS TIMELY FILED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the action should not have been dismissed because the tolling provisions of CPLR 205 (a) applied. The judge who dismissed the action did not place on the record specific conduct constituting neglect to prosecute demonstrating a general pattern of delay:

… [T]he tolling provisions of CPLR 205 (a) apply inasmuch as the 2012 action was not dismissed for neglect to prosecute. CPLR 205 (a) provides, in relevant part, that “[i]f an action is timely commenced and is terminated in any other manner than by . . . a dismissal of the complaint for neglect to prosecute the action . . . , the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination,” even though the new action would otherwise be barred by the statute of limitations. “Where a dismissal is one for neglect to prosecute the action made pursuant to [CPLR 3216] or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” … .

Here, it is undisputed that the 2012 action was timely commenced and that the instant action was commenced within six months of the termination of the 2012 action. …

Here, the court did not outline a general pattern of delay by plaintiff in its order dismissing the 2012 complaint or in the attached decision … . Broadway Warehouse Co. v Buffalo Barn Bd., LLC, 2021 NY Slip Op 00963, Fourth Dept 2-11-21

 

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