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THE MATERNAL GRANDMOTHER HAD STANDING TO PETITION FOR VISITATION AFTER MOTHER’S DEATH; FAMILY COURT SHOULD NOT HAVE DENIED THE PETITION WITHOUT HOLDING A “BEST INTERESTS” HEARING (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the maternal grandparent had standing to petition for visitation after mother died. Because the grandparent had standing, Family Court should have held a “best interests” hearing rather than precluding the presentation of evidence and granting father’s petition to deny the petition:

… [I]t is undisputed that the maternal grandparents have standing based upon the death of the child’s mother. Since the maternal grandparents have standing, the Family Court should have proceeded to conduct a best interests determination based upon admissible evidence … . Instead, the maternal grandparents were not permitted to present any evidence, no testimony was taken from any of the parties, and no in camera interview with the child was conducted. We disagree with the court’s determination to grant the father’s application, in effect, to deny the petition and dismiss the proceeding without first conducting a hearing … . Matter of Jafer v Marasa, 2020 NY Slip Op 06789, Second Dept 11-18-20

 

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THE DISTINCTION BETWEEN DETERMINING THE VALIDITY OF AN AGREEMENT TO ARBITRATE, THE COURT’S ROLE, AND THE INTERPRETATION OF A PROVISION IN THE AGREEMENT, THE ARBITRATOR’S ROLE, EXPLAINED; THE MOTION TO COMPEL ARBITRATION SHOULD HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the motion to compel arbitration should have been granted. Among several substantive issues (not summarized here) the court explained the difference between determining the validity of the arbitration agreement, the court’s role, and interpreting a provision in the agreement, the arbitrator’s role:

The only challenge … that plaintiff could raise in opposition to that part of defendants’ motion seeking to compel arbitration is whether a valid arbitration agreement exists, which is for a court to determine … . The challenge must be directed “specifically to the agreement to arbitrate” … . The validity and enforceability of arbitration agreements is governed by the rules applicable to contracts generally … . “[A] party may resist enforcement of an agreement to arbitrate on any basis that could provide a defense to or grounds for the revocation of any contract, including fraud, unconscionability, duress, overreaching conduct, violation of public policy, or lack of contractual capacity” … .

… [P]laintiff failed to raise any challenge to the validity of the agreement to arbitrate. … [P]laintiff relied on a provision in the arbitration agreement that stated that it would not apply “to any employee represented by a labor organization … ” which plaintiff contends shows that there was no valid agreement to arbitrate. … [P]laintiff’s contention conflates the issue of whether there is a valid agreement to arbitrate, which is for a court to decide, with the issue of the arbitrability of the dispute, which is for the arbitrator to determine. The arbitrability issue includes the interpretation of any contract provision, such as the provision exempting union employees from the arbitration agreement under certain circumstances … . Basile v Riley, 2020 NY Slip Op 06600, Fourth De[pt 11-13-20

 

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IN THIS LABOR LAW 240(1), 241(6) AND 200 TRIAL, THE DEFENDANTS’ MOTION FOR A JUDGMENT AS A MATTER OF LAW ON THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION BASED UPON THE HOMEOWNER’S EXEMPTION SHOULD NOT HAVE BEEN GRANTED, THE BETTER PRACTICE WOULD HAVE BEEN TO RESERVE ON THE MOTION AND LET THE MATTER GO TO THE JURY; AND PLAINTIFF’S MOTION TO SET ASIDE THE LABOR LAW 200 VERDICT SHOULD HAVE BEEN GRANTED BECAUSE THE VERDICT WAS INCONSISTENT; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for a judgment as a matter of law pursuant to CPLR 4401 should have been denied and plaintiff’s motion to set aside the verdict pursuant to CPLR 4404 (a) in this Labor Law 240 (1), 241 (6) and 200 scaffold-fall case should have been granted. The defendants’ motion to dismiss the Labor Law 240 (1) and 241 (6) causes of action were granted because the court found defendants exempt pursuant to the homeowner exemption. Plaintiff moved to set aside the verdict because the jury found the defendant homeowner (Nielson) was negligent in striking the scaffold with a Bobcat, but also illogically found the negligence was not the proximate cause of the accident:

Contrary to the Supreme Court’s determination, we conclude that different inferences could be drawn from the evidence on the issue of whether Nielson had authority to or exercised authority to direct or control the work. Affording the plaintiff the benefit of every favorable inference and considering the evidence in the light most favorable to the plaintiff, there was a rational process by which a jury could find that the defendants were not exempt from liability by reason of the homeowner exemption under Labor Law §§ 240(1) and 241(6), and could find that they were liable under Labor Law § 200 … .

We note that, in the interest of judicial economy, the better practice would have been for the Supreme Court to reserve determination on the motion for a directed verdict on the Labor Law causes of action, and allow those causes of action to go to the jury. “There is little to gain and much to lose by granting the motion for judgment as a matter of law after . . . the evidence has been submitted to the jury and before the jury has rendered a verdict. If the appellate court disagrees, there is no verdict to reinstate and the trial must be repeated” … . …

Assuming that Nielson struck the scaffold with the Bobcat, which was the only theory of common-law negligence presented by the plaintiff, then it is logically impossible under the circumstances to find that such negligence was not a substantial factor in causing the accident. Thus, the issues of negligence and proximate cause were so inextricably interwoven as to make it logically impossible to find Nielson negligent without also finding proximate cause. Brewer v Ross, 2020 NY Slip Op 06483, Second Dept 11-12-20

 

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PLAINTIFF BANK MOVED FOR AN ORDER OF REFERENCE WITHIN ONE YEAR; DESPITE THE WITHDRAWAL OF THE MOTION, THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED, SUA SPONTE, PURSUANT TO CPLR 3215 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint in this foreclosure action should not have been, sua sponte, dismissed for failure to take steps to procure a default judgment within one year. Plaintiff moved for an order of reference within one year. It doesn’t matter that the motion was withdrawn:

Pursuant to CPLR 3215(c), “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after [a] default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.” It is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c)  … . “Rather, it is enough that the plaintiff timely takes ‘the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference’ to establish that it ‘initiated proceedings for entry of a judgment within one year of the default,’ for the purposes of satisfying CPLR 3215(c)” … .

Here, the plaintiff took the preliminary step toward obtaining a default judgment of foreclosure and sale by moving for an order of reference in May 2010, within one year of the defendants’ default … . In such cases, the complaint should not be dismissed pursuant to CPLR 3215(c), even if, as here, the plaintiff’s motion is later withdrawn … . Deutsche Bank Natl. Trust Co. v Hasan, 2020 NY Slip Op 06243, 11-4-20

 

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DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION GRANTED IN THE INTERESTS OF SUBSTANTIAL JUSTICE; THE EVIDENCE SUGGESTED DEFENDANT WAS THE VICTIM OF A SCHEME TO DEFRAUD; SUPREME COURT, HOWEVER, SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT (SECOND DEPT).

The Second Department determined defendant’s decedent’s (Renda’s) motion to vacate a default judgment in this foreclosure action should have been granted in the interests of substantial justice. There was evidence Renda was the victim of a scheme to defraud and foreclosure triggers the equitable powers of the court. Supreme Court should not have, sua sponte, dismissed the complaint, however:

… [W]e find that the defendant is entitled to vacatur of her default in the interests of substantial justice. “In addition to the grounds set forth in section 5015(a), a court may vacate its own judgment for sufficient reason and in the interests of substantial justice” … . “A foreclosure action is equitable in nature and triggers the equitable powers of the court” … . “Once equity is invoked, the court’s power is as broad as equity and justice require” … .

Here, the evidence submitted strongly suggests that Renda was the victim of a scheme to defraud … .

… [T]he Supreme Court erred in, sua sponte, directing dismissal of the complaint. Here, there were no extraordinary circumstances warranting the sua sponte dismissal, and there is no indication that the court gave the parties an opportunity to be heard regarding the dismissal of the complaint … . Caridi v Tanico, 2020 NY Slip Op 06236, Second Dept 11-4-20

 

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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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