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EVEN IF PLAINTIFF BANK DID NOT SATISFY THE GOOD CAUSE STANDARD FOR AN EXTENSION OF TIME TO SERVE DEFENDANT IN THIS FORECLOSURE ACTION, PLAINTIFF WAS ENTITLED TO AN EXTENSION IN THE INTEREST OF JUSTICE PURSUANT TO CPLR 306-b (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff bank’s motion to extend the time for service of the complaint in the interest of justice should have been granted. The Third Department noted that defendant had waived the statute of limitations defense by not asserting it in an answer or a motion to dismiss and Supreme Court should not have cancelled the mortgage because defendant did not request that relief:

… [D]efendant contends … that her default was properly vacated due to lack of personal jurisdiction. Plaintiff does not raise any argument as to whether service was properly effectuated upon defendant or whether a traverse hearing should have been granted. … Plaintiff instead argues that it was entitled to an extension of time under CPLR 306-b to cure any service defects.

To that end, a plaintiff may be granted an extension of time to serve process upon a defendant “upon good cause shown or in the interest of justice” … . Even if we agreed with defendant that plaintiff failed to satisfy the good cause standard of CPLR 306-b, we find that plaintiff established its entitlement to an extension of time in the interest of justice. “The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties” … . The record discloses that, approximately one month after commencing this action, plaintiff made numerous attempts to serve defendant at the address provided on the mortgage documents. Plaintiff likewise cross-moved for an extension of time to cure any service defects approximately one month after defendant raised the issue of improper service. Furthermore, defendant does not argue, nor does the record indicate, that she would suffer any prejudice if an extension of time was granted. In view of the foregoing, and taking into account that plaintiff demonstrated the merits of its claim, plaintiff’s cross motion, to the extent that it sought an extension of time to serve process in the interest of justice, should have been granted … . U.S. Bank Natl. Assn. v Kaufman, 2020 NY Slip Op 06184, Third Dept 10-29-20

 

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THE RECORD DOES NOT DEMONSTRATE WHETHER THE DEFENDANT REVIEWED THE VERDICT SHEET WHICH INCLUDED UNAUTHORIZED ANNOTATIONS BY THE JUDGE; MATTER REMITTED FOR A RECONSTRUCTION HEARING (THIRD DEPT).

The Third Department, remitting the matter for a reconstruction hearing, determined the defendant’s consent to the judge’s annotations on the verdict sheet was required. Although the record indicated defense counsel was aware of the annotations and did not object, it was not clear from the record whether the defendant was shown the verdict sheet with the annotations:

“CPL 310.20 (2) allows the trial court, when submitting two or more counts charging offenses from the same article of law, to set forth the dates, names of complainants or specific statutory language, without defining the terms, by which the counts may be distinguished. Absent a defendant’s consent, any other notations on the verdict sheet offend the letter of the law” … . “Although generally the lack of an objection to the annotated verdict sheet by defense counsel cannot be transmuted into consent, it is well settled that consent to the submission of an annotated verdict sheet may be implied where defense counsel fails to object to the verdict sheet after having an opportunity to review it” … . …

… [T]he notations as to counts 3 and 4 were not [authorized] … . Accordingly, defendant’s consent was required. To that end, at the conclusion of the court’s instructions to the jury, including an explanation of the annotations on the verdict sheet, the court explicitly asked the People and defense counsel if they had any additional requests or exceptions to the charge. Defense counsel answered in the negative. … [W]e cannot determine from the record whether defendant had an opportunity to review the verdict sheet because the charge conference was held off the record in County Court’s chambers. People v Chappell, 2020 NY Slip Op 05978, Third Dept 10-22-20

 

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DENIAL OF MOTHER’S REQUEST TO PRESENT EVIDENCE OF HER FINANCIAL SITUATION WAS AN ABUSE OF DISCRETION; MOTHER WAS FACING INCARCERATION FOR VIOLATING HER CHILD SUPPORT OBLIGATIONS; NEW CONFIRMATION OF WILLFULNESS HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Family Court, determined it was an abuse of discretion to deny mother’s request to present evidence of her financial situation and her request for an adjournment to obtain additional proof of her financial situation in this child support proceeding. Mother was facing incarceration for violation of her support obligations:

… [A]lthough the mother appeared in person before the Family Court at the confirmation of willfulness hearing, and proffered documentary and testimonial evidence in support of her assertion that she was indigent and unable to pay child support, the court did not permit the mother to adduce any evidence regarding her financial situation, and denied her request for an adjournment to obtain additional evidence of her inability to work. This was an abuse of discretion … . Since the mother was facing a potential period of incarceration of up to six months in the event that the court determined that her failure to pay child support was willful (see Family Ct Act § 454[3][a]), the mother’s testimony was “essential to the court’s determination as to whether she had had the ability to pay or willfully disobeyed the prior support order” … . If the mother had been given an opportunity to substantiate her claimed inability to pay, and she had done so, the court would have been constrained to deny the father’s petition … . Matter of Palombelli v Guglielmo, 2020 NY Slip Op 05903, Second Dept 10-21-20

 

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SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE FORMULA FOR DETERMINING TEMPORARY SPOUSAL MAINTENANCE IN THIS DIVORCE PROCEEDING WITHOUT MAKING A FINDING THAT USING THE FORMULA WOULD RESULT IN AN UNFAIR AMOUNT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this divorce proceeding, determined Supreme Court should not have deviated form the temporary spousal maintenance formula without making a finding the formula resulted in an unjust or inappropriate amount:

“The formula to determine temporary spousal maintenance that is outlined in Domestic Relations Law § 236(B)(5-a)(c) is intended to cover all of a payee spouse’s basic living expenses, including housing costs, the costs of food and clothing, and other usual expenses” … . Here, the Supreme Court’s directive that the defendant pay pendente lite maintenance in the sum of $6,940 per month plus real estate taxes, homeowner’s insurance, and homeowner’s association fees on the marital residence resulted in a double shelter allowance, since the formula used to calculate the presumptive temporary maintenance award is intended to cover all of the plaintiff’s basic living expenses, including housing costs … . It was error to deviate in this manner from the guideline amount of temporary maintenance without making a finding that such amount was unjust or inappropriate based upon the factors enumerated in Domestic Relations Law § 236(B)(5-a)(h) … . Capozzoli v Capozzoli, 2020 NY Slip Op 05715, Second Dept 10-14-20

 

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THE 2ND DEPARTMENT CRITICIZED THE PIECEMEAL DECISION-MAKING BY SUPREME COURT IN THIS COMPLEX DIVORCE PROCEEDING WHICH RESULTED IN AN INADEQUATE RECORD ON APPEAL; HOWEVER THE 2ND DEPARTMENT ADDRESSED MANY OF THE FACTUAL ISSUES IN A DETAILED OPINION WORTH READING BUT IMPOSSIBLE TO SUMMARIZE HERE (SECOND DEPT).

The Second Department, in a detailed, fact-specific opinion by Justice Scheinkman, criticized the piecemeal approach to the decisions made by Supreme Court in this divorce proceeding, which resulted in an inadequate record for the appellate court. The Second Department took it upon itself to resolve the factual issues which could be gleaned from the record. The factual discussion is too detailed to fairly summarize here. With respect to the piecemeal decision-making and the inadequate record on appeal the court wrote:

These appeals and cross appeal, as well as the two other appeals in the same case also decided today, are a graphic illustration of the prolixity that may ensue when a complicated matrimonial case is cabined into constituent parts which are heard and decided piecemeal by the Supreme Court. The court bifurcated the trial into phases but, in the end, only conducted one of the two promised phases of the trial. Because some of the issues did not lend themselves to a neat division, the issues, and the court’s seriatim determination of them, overlap. As a consequence of the incremental approach to the serial determination of the significant issues raised, which were followed by sequential appeals and cross appeals from the various orders and the final judgment, which appeals are prosecuted on voluminous appendices and supplemental appendices, this Court has not been provided with either a clear, comprehensible, and accessible record or a unified, comprehensive analysis by each party as to what determinations were made by the Supreme Court and which of those decisions each party accepts or challenges. Moreover, with respect to equitable distribution of the parties’ substantial investment assets, the judgment of divorce entered by the court merely incorporated by reference its prior decisions, without specifying what is actually ordered, adjudged, and decreed, except that it set forth certain deviations from those prior decisions. Since the decisions conflict with each other in important respects, it is unclear what the court actually directed as to the equitable distribution of major and valuable assets. Kaufman v Kaufman, 2020 NY Slip Op 05732, Second Dept 10-14-20

 

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ALTHOUGH DEFENDANT WAS NOT INFORMED OF THE PERIOD OF POST-RELEASE SUPERVISION AT THE ORIGINAL PLEA AND SENTENCING, HE WAS SO INFORMED AT RESENTENCING; DEFENDANT HAD AN OPPORTUNITY AT RESENTENCING TO MOVE TO WITHDRAW HIS PLEA AND THE SENTENCING JUDGE WAS NOT OBLIGATED TO INFORM DEFENDANT, SUA SPONTE, OF THE AVAILABILITY OF A MOTION TO WITHDRAW; DEFENDANT’S MOTION TO SET ASIDE HIS RESENTENCE PROPERLY DENIED (FIRST DEPT).

The First Department determined defendant’s motion to set aside his resentence was properly denied. Defendant was not informed of the period of post-release supervision (PRS) at the time of the original plea and the original sentence, but was so informed at the resentence:

In 2002, defendant pleaded guilty without being informed of the mandatory postrelease supervision (PRS) component of the promised sentence … , and was sentenced in a proceeding in which the court also did not pronounce that component of the sentence … . Seven years later, he was returned to court with his attorney for further proceedings. Defense counsel advised the court that he had spoken to his client who was prepared to accept the amended sentence. The court explained that five years of PRS would be imposed. Defense counsel responded that that was fine. The court then resentenced defendant to a term that included the mandatory PRS period … .

… Defendant was not denied a meaningful opportunity, at resentencing, to seek to withdraw his plea based on the plea court’s failure to inform him that his sentence was required to include PRS. Generally, a defendant is entitled to an opportunity to withdraw a plea where a sentence exceeds the original promise. However, we find no support for defendant’s argument that this places a sua sponte obligation on the court to inform a counseled defendant of the right to move for plea withdrawal … . People v Perez, 2020 NY Slip Op 05297, First Dept 10-1-20

 

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AFTER CONVERTING THE ARTICLE 78 PETITION TO A COMPLAINT THE JUDGE SHOULD NOT HAVE TREATED THE MOTION TO DISMISS AS A SUMMARY JUDGMENT MOTION WITHOUT NOTIFYING THE PARTIES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge, after converting the article 78 petition to a complaint, should not have, sua sponte, dismissed the complaint without notifying the parties:

… [T]he Supreme Court denied the Comptroller’s motion to dismiss, and, pursuant to CPLR 103(c), converted the article 78 petition into a complaint asserting a declaratory judgment cause of action. Upon reaching the merits of the plaintiff’s complaint, the court sua sponte denied the plaintiff declaratory relief and directed dismissal of the complaint. …

Upon converting the article 78 petition into a complaint, the Supreme Court erred in reaching the merits of the complaint, and directing its dismissal. Having converted the petition to a complaint, the court could only reach the merits by giving the parties adequate notice that it was going to treat the defendant’s pre-answer motion to dismiss as one for summary judgment (see CPLR 3211[c] …). The defendant had not served an answer to either the petition or the complaint, and therefore, any motion for summary judgment would have been premature (see CPLR 3212[a]). Moreover, the record does not establish that the parties deliberately charted a summary judgment course … . Under these circumstances, the court’s determination on the merits of the complaint was premature. Matter of Gorelick v Suffolk County Comptroller’s Off., 2020 NY Slip Op 05048, Second Dept 9-23-20

 

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JUDGE’S SUA SPONTE DISMISSAL OF THE FORECLOSURE COMPLAINT WAS NOT WARRANTED; NO EXTRAORDINARY CIRCUMSTANCES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion to vacate the sua sponte dismissal of the foreclosure complaint should have been granted:

… [I]n a status conference order … , the Court Attorney Referee … directed the plaintiff to file an application seeking an order of reference by the date of the final status conference. Following the final status conference … , the Court Attorney Referee … determined that the plaintiff failed to show good cause for its failure to move for an order of reference as directed, and recommended that the action be dismissed. … [T]he Supreme Court directed dismissal of the complaint. …

“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 Supreme Court was not presented with any extraordinary circumstances warranting a sua sponte dismissal of the complaint … . Indeed, at the time the plaintiff was directed to file an application for an order of reference, an order of reference, as well as a judgment of foreclosure and sale, had already been issued. Bank of N.Y. v Ramirez, 2020 NY Slip Op 05024, Second Dept 9-23-20

 

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APPELLANT’S REQUEST FOR AN ADJOURNMENT TO FIND NEW COUNSEL SHOULD HAVE BEEN GRANTED; THE NEARLY $800,000 JUDGMENT AGAINST THE APPELLANT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined appellant’s request for an adjournment to find new counsel should have been granted. The appellant’s attorney had also represented other respondents and had drawn up a settlement agreement. The appellant declined to sign settlement and the court entered a judgment against the appellant for nearly $800,000:

The granting of an adjournment for any purpose rests within the sound discretion of the court … , and its determination will not be disturbed absent an improvident exercise of that discretion … . In deciding whether to grant an adjournment, the court must engage in a balanced consideration of numerous relevant factors, including the merit or lack of merit of the proceeding, prejudice or lack thereof to the petitioner, the number of adjournments granted, the lack of intent to deliberately default or abandon the action, and the length of the pendency of the proceeding … .

Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the appellant’s request for an adjournment to obtain new counsel … . There was no prejudice to the petitioner, no lack of diligence by the appellant, and no substantial delay in the proceeding … . Matter of People of State of N.Y. v Emstar Pizza, Inc., 2020 NY Slip Op 04950, Second Dept 9-16-20

 

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ALTHOUGH THE MOTION TO VACATE THE JUDGMENT OF FORECLOSURE FOR LACK OF PERSONAL JURISDICTION WAS PROPERLY GRANTED FOR THE MOVING DEFENDANT, THE JUDGE SHOULD NOT HAVE, SUA SPONTE, GRANTED THE SAME RELIEF TO DEFENDANTS WHO DID NOT SO MOVE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, noted that the judge should not have, sua sponte, vacated the judgment of foreclosure as against those defendants who did not move for that relief:

“A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . “[T]he defense of lack of jurisdiction based on improper service is personal in nature and may only be raised by the party improperly served'” … . Here, Hickson was the only defendant who moved to vacate the judgment of foreclosure and sale and to dismiss the complaint for lack of personal jurisdiction. Accordingly, under the circumstances of this case, the Supreme Court had no basis to, sua sponte, vacate so much of the judgment of foreclosure and sale as was against the defendants other than Hickson and to direct the dismissal of the complaint insofar as asserted against those defendants for lack personal jurisdiction. Lehman Bros. Bank v Hickson, 2020 NY Slip Op 04932, Second Dept 9-16-20

 

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