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IN THE ABSENCE OF AN ORDER SUBSTITUTING THE BANKRUPTCY TRUSTEE FOR THE PLAINTIFF-DEBTOR, THE DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT SHOULD HAVE BEEN GRANTED; SUPREME COURT SHOULD NOT HAVE DENIED DEFENDANTS’ MOTION AND DIRECTED PLAINTIFF TO SEEK RELIEF FROM THE BANKRUPTCY COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that, as a matter of comity, based upon an order in bankruptcy court, a New York court will substitute the bankruptcy trustee as a party in a suit involving the plaintiff/debtor. Here there was no such order and the defendants’ motion to dismiss the complaint should have been granted:

“‘[T]he integrity of the bankruptcy system depends on full and honest disclosure by debtors of all of their assets'” … . “By failing to list causes of action on bankruptcy schedules of assets, the debtor represents that it has no such claims” … .

“[O]nce a bankruptcy proceeding is commenced, all legal or equitable interests of the debtor become part of the bankruptcy estate, including any causes of action (… see 11 USC § 541[a][1]). Accordingly, where a debtor has sought chapter 7 bankruptcy protection, “the causes of action formerly belonging to the debtor . . . [vest] in the trustee for the benefit of the estate . . . [and] [t]he debtor has no standing to pursue such causes of action” … .

In cases where a plaintiff-debtor has successfully petitioned the bankruptcy court to reopen the bankruptcy to include a pending action, this Court has invoked the doctrine of comity to permit substitution of the bankruptcy trustee as a plaintiff … . Here, however, the Supreme Court went further, directing [plaintiff] to seek such relief from the bankruptcy court and denying the defendants’ motion to dismiss the complaint … . …

Under these circumstances, the court should have granted that branch of the defendants’ motion which was to dismiss the complaint … . Nevertheless, the trustee, if he or she should chose to re-commence the case in his or her own name, will enjoy the protection offered by CPLR 205 … . Turner v Owens Funeral Home, Inc., 2020 NY Slip Op 07238, Second Dept 12-2-20

 

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UNDER THE CIRCUMSTANCES, SUPREME COURT SHOULD HAVE GRANTED THE DEFENSE AND PROSECUTION’S JOINT REQUEST TO HAVE THE DEFENDANT’S COMPETENCE TO STAND TRIAL EVALUATED; ONCE A DEFENDANT IS DEEMED COMPETENT TO STAND TRIAL, THE DECISION WHETHER TO PRESENT AN INSANITY DEFENSE IS THE DEFENDANT’S, NOT THE COURT’S, TO MAKE (SECOND DEPT).

The Second Department, reversing the convictions, determined: (1) the trial judge should not have rejected the request by both defense counsel and the prosecutor to have the defendant’s mental health and fitness for trial evaluated; and (2) once a defendant is found competent to stand trial the decision whether to present an insanity defense is the defendant’s alone. Here defense counsel was ordered by the judge to present an insanity defense, over defendant’s objection:

… [W]hen confronted with evidence that the defendant was not taking his required medication and was not able to communicate rationally with his attorney, the Supreme Court should have granted the joint applications of the People and the defense to have the defendant examined pursuant to CPL 730.30(1) to determine his fitness to proceed … . …

… [A] defendant found competent to stand trial has the ultimate authority, even over counsel’s objection, to reject the use of a psychiatric defense … . Thus, once the Supreme Court determined the defendant to be competent to stand trial, it should not have interfered with that authority by “order[ing]” defense counsel, over the defendant’s objection, to present an insanity defense. People v Bellucci, 2020 NY Slip Op 07215, Second Dept 12-2-20

 

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PLAINTIFF’S FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, SUA SPONTE, AS ABANDONED PURSUANT TO 22 NYCRR 202.48; THE 60-DAY TIME LIMIT ONLY APPLIES TO THE DIRECTION TO SUBMIT A JUDGMENT “ON NOTICE” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court should not have dismissed plaintiff’s foreclosure action, sua sponte, as abandoned pursuant to 22 NYCRR 202.48. Supreme Court, after plaintiff’s unopposed motion for a judgment of foreclosure and sale, directed the plaintiff to “submit judgment.” When plaintiff submitted a proposed judgment for signature, Supreme Court dismissed the action because the proposed judgment was not submitted within 60 days. The 60-day time limit only applies when a party is directed to submit the judgment “on notice:”

Pursuant to 22 NYCRR 202.48, an order or judgment which is directed to be settled or submitted on notice must be submitted for signature within 60 days after the signing and filing of the decision directing that the order or judgment be settled or submitted. A party who fails to submit the order or judgment within the 60-day time period will be deemed to have abandoned the action or motion, absent good cause shown … . In this case, when the Supreme Court initially granted the plaintiff’s motion, inter alia, for a judgment of foreclosure and sale, it did not direct that the proposed judgment had to be settled or submitted on notice. 22 NYCRR 202.48 does not apply where, as here, the court merely directs a party to submit an order or judgment without expressly directing that the order or judgment be submitted on notice … . James B. Nutter & Co. v McLaughlin, 2020 NY Slip Op 07178, Second Dept 12-2-20

 

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THE DISTRICT ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED FROM PROSECUTING THE DEFENDANT FOR ALLEGED SEX OFFENSES ON THE GROUND THAT, AS A FAMILY COURT JUDGE, THE DISTRICT ATTORNEY HAD PRESIDED OVER FAMILY COURT PROCEEDINGS INVOLVING THE DEFENDANT AND THE ALLEGED VICTIM OF THE CHARGED SEX OFFENSES (THIRD DEPT).

The Third Department, reversing County Court, determined petitioner, the county district attorney, should not have been disqualified from prosecuting Jamel Brandow for sex offense charges on the ground that, as a Family Court judge, the district attorney had presided over Family Court proceedings against Brandow which also involved the alleged victim of the current charges:

Pursuant to Judiciary Law § 17, a former judge “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” … . Here, contrary to respondent’s determination, the underlying criminal matter was not in any way before petitioner in his former judicial capacity. Although petitioner presided over proceedings brought against Brandow in Family Court in 2008, the matters litigated in those proceedings bear no similarity to the allegations of sexual misconduct charged in the indictment … . Further, although petitioner determined that Brandow violated an order of protection issued in favor of the victim and others, the violation did not arise out of any contact between Brandow and the victim. Accordingly, as the underlying criminal matter was not previously before petitioner in his judicial capacity, Judiciary Law § 17 does not prohibit petitioner’s prosecution of the subject criminal charges … . Matter of Czajka v Koweek, 2020 NY Slip Op 07009, Third Dept 11-25-20

 

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FATHER HAD BROUGHT HIS CHILD SUPPORT PAYMENTS CURRENT; FAMILY COURT DID NOT HAVE THE AUTHORITY TO IMPOSE A SUSPENDED JAIL SENTENCE CONDITIONED ON PAYMENT OF FUTURE CHILD SUPPORT (THIRD DEPT).

The Third Department, reversing Family Court, determined that once father had paid the child support arrears the court did not have the authority to impose a suspended jail sentence:

… [T]he father … is aggrieved by … the order suspending [the jail] sentence upon the condition that he comply with the support order for three years. A jail sentence imposed for a party’s civil contempt in failing to comply with an order — such as the father’s willful failure to pay support as ordered — is not punitive and only serves “the remedial purpose of compelling compliance” with the order … . There was “no remedial purpose to be served by continued confinement” or the threat thereof once the father had brought his support payments current … and, indeed, the order of commitment should not have been issued because the father had already “complie[d] completely with the underlying support order” … . Family Court accordingly erred in suspending the sentence and was obliged to discharge it without condition. Matter of Dupuis v Costello, 2020 NY Slip Op 06992, Third Dept 11-25-20

 

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AS NO PETITION WAS BEFORE THE COURT, FAMILY COURT LACKED SUBJECT MATTER JURISDICTION AND THEREFORE DID NOT HAVE THE AUTHORITY TO ORDER A FORENSIC EVALUATION (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court did not have subject matter jurisdiction when it issued a forensic evaluation because no petition was before the court:

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of two children (born in 2004 and 2006). In July 2018, the parties stipulated in open court to a settlement of the father’s modification of custody petition and violation petitions then pending in Family Court. The parties stipulated to, among other things, suspension of the collection of accrued child support arrears and, as relevant here, agreed to engage in family counseling and to a protocol for the selection of a therapist. The transcript of the parties’ stipulation of settlement was incorporated by reference into a consent order entered in March 2019. Thereafter, the parties failed to agree on the selection of a therapist, prompting the father to request that the court appoint as a therapist a licensed psychiatrist versed in parental alienation. In June 2019, the court appointed a psychologist, but the psychologist declined to provide counseling services. By letter, the father then, among other things, requested that the court order a forensic evaluation by a different licensed psychologist. After converting the father’s request to an application for a court-ordered forensic evaluation, the court ordered a forensic evaluation over the mother’s objection. The mother appealed from that order, and we granted the mother’s subsequent motion for a stay of Family Court’s order pending resolution of this appeal … . * * *

Less than one year after the stipulation was incorporated by reference into a consent order, Family Court … ordered a forensic evaluation, citing the “unusual situation” whereby the parties stipulated to — and the court ordered — counseling and all efforts failed. This was error, as no petition had been filed by the father since the March 2019 consent order was entered, and no proceedings were therefore pending to provide Family Court with jurisdiction to render the appealed-from order directing a forensic evaluation (see Family Ct Act §§ 154-a, 251 [a] … ). Indeed, as is the case here, an expectation of finality derives from a stipulation of settlement entered into by those with legal capacity to negotiate … . Accordingly, we find that Family Court lacked subject matter jurisdiction to order a forensic evaluation. Matter of James R. v Jennifer S., 2020 NY Slip Op 06997, Third Dept 11-25-20

 

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FAMILY COURT DID NOT HAVE THE AUTHORITY TO CONDITION VISITATION UPON FATHER’S PARTICIPATION IN MENTAL HEALTH COUNSELING; THEREFORE FATHER’S PETITION TO MODIFY CUSTODY AND VISITATION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THAT ORDER HAD BEEN VIOLATED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the motion to dismiss father’s petition to modify custody and visitation shoud not have been granted. The motion to dismiss argued father had not complied with the court’s order conditioning visitation on participation in mental health counseling. The court did not have the authority to issue that order:

… [A]lthough a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation” … . Family Court therefore “lacked the authority to condition any future application for modification of [the father’s] visitation on [his] participation in mental health counseling” … . Matter of Lane v Rawleigh, 2020 NY Slip Op 06926, Fourth Dept 11-20-20

 

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MOTHER’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED; FAMILY COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother’s request for an adjournment:

… [T]he court abused its discretion in failing to grant her attorney’s request for an adjournment … . Under the unique circumstances of this case, i.e., that the court was aware of the mother’s history of mental illness, that this was the first request for an adjournment on the mother’s behalf, and that the child’s situation would remain unaltered if the adjournment had been granted, the court improperly denied the request for an adjournment … . In addition, we conclude that the court abused its discretion in failing to grant an adjournment because of the serious concerns about the mother’s competency to assist in her own defense, which raised an issue whether it was necessary for the court to continue the appointment of a guardian ad litem … . We therefore reverse the corrected order and remit the matter to Family Court for further proceedings on the petition. Matter of Hayden A. (Karen A.), 2020 NY Slip Op 06917, Fourth Dept 11-20-20

 

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A FINDING DEFENDANT SUFFERS FROM A MENTAL ABNORMALITY CANNOT BE BASED SOLELY ON A FINDING DEFENDANT SUFFERS FROM ANTI-SOCIAL PERSONALITY DISORDER (ASPD); REFUSAL OF DEFENDANT’S REQUEST FOR A JURY INSTRUCTION TO THAT EFFECT WAS REVERSIBLE ERROR; DEFENDANT’S MOTION TO SET ASIDE THE VERDICT ADJUDICATING HIM A SEX OFFENDER REQUIRING CIVIL MANAGEMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the jury in this Mental Hygiene Law sex-offender civil-commitment trial should have been instructed that the anti-social personality disorder (ASPD) diagnosis cannot, standing alone, support a finding defendant has a mental abnormality as defined in the Mental Hygiene Law. The fact that the Pattern Jury Instructions do not include an instruction on this issue is not a justification for failing to give the instruction:

Mental Hygiene Law 10.03 defines “Mental abnormality” as a “congenital or acquired condition, disease or disorder that affects the emotional, cognitive, or volitional capacity of a person in a manner that predisposes him or her to the commission of conduct constituting a sex offense and that results in that person having serious difficulty in controlling such conduct.” In Matter of State of New York v Donald DD (24 NY3d 174 [2014]), the Court of Appeals expressly held: “evidence that a respondent suffers from antisocial personality disorder cannot be used to support a finding that he has a mental abnormality as defined by Mental Hygiene Law § 10.03(i), when it is not accompanied by any other diagnosis of mental abnormality” … . …

Where [as here] the jury is asked to parse through multiple psychological diagnoses, which include ASPD, the jury should be instructed that ASPD cannot be the sole basis for its finding that someone suffers from a mental abnormality. This is to ensure that the jury’s finding conforms to the applicable law. Absent such an instruction, the jury may mistakenly find mental abnormality based solely on ASPD without the requisite finding of an additional diagnosis of a condition or disorder that, combined with ASPD, may predispose one to commit a sex offense. Matter of State of New York v David S., 2020 NY Slip Op 06876, First Dept 11-19-20

 

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THE CUSTODY ARRANGEMENTS SET FORTH IN A SETTLEMENT AGREEMENT SHOULD NOT HAVE BEEN MODIFIED IN THE ABSENCE OF A HEARING AND FAMILY COURT SHOULD NOT HAVE RELIED ON INADMISSIBLE EVIDENCE UNTESTED BY THE PARTIES (SECOND DEPT).

The Second Department, reversing Family Court, determined the custody arrangements set forth in the settlement agreement should not have been modified in the absence of a hearing and the modification should not have been based upon inadmissible evidence not tested by either party:

… [T]he Supreme Court should not have granted, without a hearing, that branch of the defendant’s motion which was to modify the terms of the parties’ stipulation of settlement. Custody determinations should generally be made only after a full and plenary hearing … . While the general right to a hearing in custody and visitation cases is not absolute, where “facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute,” a hearing is required … . Here, the record shows that there were disputed factual issues regarding the child’s best interests, such that a hearing on the defendant’s petition was necessary … .

In addition, decisions regarding child custody and parental access should be based on admissible evidence … . Here, in making its determination, the Supreme Court improperly relied solely on statements and conclusions of witnesses whose opinions and credibility were untested by either party … . Palazzola v Palazzola, 2020 NY Slip Op 06801, Second Dept 11-18-20

 

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