You are here: / First Department

Tag Archive for: First Department

,

ACTIONS FOR TRESPASS AND ENCROACHMENT ALLEGING DAMAGE TO A PARTY WALL PROPERLY SURVIVED SUMMARY JUDGMENT, RESTRICTIVE COVENANT IN 1869 DEED DID NOT BENEFIT ANYONE OTHER THAN THE ORIGINAL GRANTEE (FIRST DEPT).

The First Department determined plaintiffs' causes of action for trespass and encroachment properly survived summary judgment and the cause of action for enforcement of a restrictive covenant was properly dismissed. The plaintiffs alleged that construction on defendants' building encroached on and damaged a party wall. The restrictive covenant was in an 1869 deed and did not indicate it was for the benefit of anyone other than the grantee:

The motion court correctly denied the motion insofar as it sought dismissal of the causes of action for encroachment and trespass. “A party wall is for the common benefit of contiguous proprietors. Neither may subject it to a use whereby it ceases to be continuously available for enjoyment by the other. . . A wall may be carried by either owner beyond its height as first erected, provided only it is strong enough to bear the weight and strain” … . It was defendants' burden, as movants, to offer evidence establishing their prima facie entitlement to summary judgment … . This they have failed to do. Indeed, plaintiffs in opposition proffer evidence that the alterations to the party wall have undermined the structural integrity of their buildings. Plaintiffs' engineer opined that defendants failed to detail a flashing system and to adhere to industry standards, occasioning damage. He further opined that it was impossible to ascertain whether the new masonry is properly tied to the old masonry so as to provide the requisite structural stability.

The cause of action to enforce a restrictive covenant was correctly dismissed for lack of standing…  The covenant was entered into in 1869 by the original owner of one lot that included both of the subject properties and his immediate neighbor, and it contains no explicit provision that it is for the benefit of anyone other than the grantee. Mastrobattista v Borges, 2018 NY Slip Op 00039, First Depat 1-2-18

REAL PROPERTY LAW (ACTIONS FOR TRESPASS AND ENCROACHMENT ALLEGING DAMAGE TO A PARTY WALL PROPERLY SURVIVED SUMMARY JUDGMENT, RESTRICTIVE COVENANT IN 1869 DEED DID NOT BENEFIT ANYONE OTHER THAN THE ORIGINAL GRANTEE (FIRST DEPT))/TRESPASS  (ACTIONS FOR TRESPASS AND ENCROACHMENT ALLEGING DAMAGE TO A PARTY WALL PROPERLY SURVIVED SUMMARY JUDGMENT, RESTRICTIVE COVENANT IN 1869 DEED DID NOT BENEFIT ANYONE OTHER THAN THE ORIGINAL GRANTEE (FIRST DEPT))/ENCROACHMENT (ACTIONS FOR TRESPASS AND ENCROACHMENT ALLEGING DAMAGE TO A PARTY WALL PROPERLY SURVIVED SUMMARY JUDGMENT, RESTRICTIVE COVENANT IN 1869 DEED DID NOT BENEFIT ANYONE OTHER THAN THE ORIGINAL GRANTEE (FIRST DEPT))/DEEDS  (ACTIONS FOR TRESPASS AND ENCROACHMENT ALLEGING DAMAGE TO A PARTY WALL PROPERLY SURVIVED SUMMARY JUDGMENT, RESTRICTIVE COVENANT IN 1869 DEED DID NOT BENEFIT ANYONE OTHER THAN THE ORIGINAL GRANTEE (FIRST DEPT))/RESTRICTIVE COVENANT (DEEDS, ACTIONS FOR TRESPASS AND ENCROACHMENT ALLEGING DAMAGE TO A PARTY WALL PROPERLY SURVIVED SUMMARY JUDGMENT, RESTRICTIVE COVENANT IN 1869 DEED DID NOT BENEFIT ANYONE OTHER THAN THE ORIGINAL GRANTEE (FIRST DEPT))/PARTY WALLS (ACTIONS FOR TRESPASS AND ENCROACHMENT ALLEGING DAMAGE TO A PARTY WALL PROPERLY SURVIVED SUMMARY JUDGMENT, RESTRICTIVE COVENANT IN 1869 DEED DID NOT BENEFIT ANYONE OTHER THAN THE ORIGINAL GRANTEE (FIRST DEPT))

,

IN THIS SLIP AND FALL CASE, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT).

The First Department, modifying Supreme Court, limited the amount of discovery about the rear stairs of the bus where plaintiff fell and allowed representatives of defendants to be present when the bus was inspected and photographed by plaintiff:

… [D]iscovery [is limited] to documents concerning the rear stairs of the bus on which plaintiff fell, and the absence of warning signs and handrails in the rear of the bus, for a period of five years preceding the date of the accident, and records relating to any modifications or changes to the interior stairs, handrails, or warning signs in the rear of the bus from the day of the accident to the day of the inspection, and the production of the bus for inspection and photographing by plaintiff in the presence of defendants' representatives … .

Predecessor models of the bus on which plaintiff fell and buses with front-facing rear seating are not relevant to whether the bus on which plaintiff fell was defectively designed (CPLR 3101[a]… ). Similarly, while material concerning the rear stairs, handrails, and warning signs in the rear of the subject bus, i.e., the alleged dangerous conditions, is relevant, material concerning other sections of the bus or other defects is not relevant. The production of 15 years' worth of records is burdensome … . Curran v New York City Tr. Auth., 2018 NY Slip Op 00038, First Dept 1-2-18

NEGLIGENCE (IN THIS SLIP AND FALL CASE, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/CIVIL PROCEDURE (NEGLIGENCE, SLIP AND FALL, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/CPLR 3101 (NEGLIGENCE, SLIP AND FALL, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/SLIP AND FALL (DISCOVERY, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/BUSES (SLIP AND FALL, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))/DISCOVERY (IN THIS SLIP AND FALL CASE, THE REQUESTED DISCOVERY ABOUT THE DESIGN OF THE REAR STAIRS OF A BUS WAS BURDENSOME, REPRESENTATIVES OF DEFENDANTS ALLOWED TO BE PRESENT WHEN BUS INSPECTED BY PLAINTIFF (FIRST DEPT))

EXPERT EVIDENCE AND TESTIMONY ABOUT THE COLOR OF THE ICE RAISED ISSUES OF FACT ABOUT THE EXISTENCE OF A HAZARDOUS CONDITION AND NOTICE IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department determined plaintiff raised a question of fact in this sidewalk slip and fall case. Defendant presented evidence the sidewalk was clear. Plaintiff presented climatological expert evidence as well as evidence the ice was brown and dirty, indicating it had been there long enough to be noticed:

… [P]laintiff raised triable issues of fact as to whether a hazardous icy condition existed and whether defendant had notice of that condition. Plaintiff's climatological expert opined, after reviewing relevant climatological reports, that snow had ceased falling two days before plaintiff's accident, but snow and ice would have remained on the ground in untreated areas on the morning of his accident, thus giving defendant sufficient time to discover and remedy the hazardous ice condition … . Plaintiff also testified that before he fell he saw ice covering part of the sidewalk. He described the ice that he saw after his fall as “[b]rownish” and “dirty,” thereby raising issues as to whether the icy condition had been on the sidewalk long enough to clear it before the accident … .Furthermore, contrary to defendant's contentions, plaintiff identified the cause of his fall, since he testified that he saw ice on the ground when he looked sideways, when he fell, face down, onto it … . Jones v New York City Hous. Auth., 2018 NY Slip Op 00027, First Dept 1-2-18

NEGLIGENCE (EXPERT EVIDENCE AND TESTIMONY ABOUT THE COLOR OF THE ICE RAISED ISSUES OF FACT ABOUT THE EXISTENCE OF A HAZARDOUS CONDITION AND NOTICE IN THIS SLIP AND FALL CASE (FIRST DEPT))/SLIP AND FALL (EXPERT EVIDENCE AND TESTIMONY ABOUT THE COLOR OF THE ICE RAISED ISSUES OF FACT ABOUT THE EXISTENCE OF A HAZARDOUS CONDITION AND NOTICE IN THIS SLIP AND FALL CASE (FIRST DEPT))/SIDEWALKS (SLIP AND FALL, EXPERT EVIDENCE AND TESTIMONY ABOUT THE COLOR OF THE ICE RAISED ISSUES OF FACT ABOUT THE EXISTENCE OF A HAZARDOUS CONDITION AND NOTICE IN THIS SLIP AND FALL CASE (FIRST DEPT))

,

DEFENDANT DETOXIFICATION FACILITY NOT ENTITLED TO SUMMARY JUDGMENT IN ACTION BASED UPON THE DEATH OF A MAN WHO WAS TREATED, LEFT AND WAS FOUND DEAD A MONTH LATER, DEFENDANTS POINTED TO GAPS IN PLAINTIFF’S PROOF OF CAUSATION BUT DID NOT AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF CAUSATION (FIRST DEPT).

The First Department determined defendant detoxification facility was not entitled to summary judgment on the negligence and wrongful death causes of action brought on behalf of decedent, DeJesus, who had been treated at the facility, left and was found dead a month later. The defendants pointed to the plaintiff's inability to prove causation as grounds for summary judgment. However, it was the defendants' burden to affirmatively demonstrate the absence of causation, which they did not do. (Another example of the strict analytical criteria used by the appellate courts for review of summary judgment motions.) The court also held the Public Health Law cause of action should have been dismissed because the detoxification facility was not a nursing home and therefore was not subject to the Public Health Law:

Defendants, however, failed to submit affirmative evidence establishing that their alleged negligence did not, as a matter of law, proximately cause DeJesus's death. The fact that DeJesus's body was discovered a month after he disappeared is not sufficient, in itself, to warrant summary judgment in defendants' favor. Although defendants submitted DeJesus's death certificate, that document states only that the manner and cause of death were undetermined, and does not definitively rule out the requisite causal connection. Further, the autopsy report submitted with defendants' motion papers is incomplete, and does not identify the cause of death.

Because defendants merely pointed to perceived gaps in plaintiff's proof, they are not entitled to summary judgment on the negligence and wrongful death claims … . Hairston v Liberty Behavioral Mgt. Corp., 2018 NY Slip Op 00004, First Dept 1-2-18

NEGLIGENCE (DEFENDANT DETOXIFICATION FACILITY NOT ENTITLED TO SUMMARY JUDGMENT IN ACTION BASED UPON THE DEATH OF A MAN WHO WAS TREATED, LEFT AND WAS FOUND DEAD A MONTH LATER, DEFENDANTS POINTED TO GAPS IN PLAINTIFF'S PROOF OF CAUSATION BUT DID NOT AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF CAUSATION (FIRST DEPT))/SUMMARY JUDGMENT (DEFENDANT DETOXIFICATION FACILITY NOT ENTITLED TO SUMMARY JUDGMENT IN ACTION BASED UPON THE DEATH OF A MAN WHO WAS TREATED, LEFT AND WAS FOUND DEAD A MONTH LATER, DEFENDANTS POINTED TO GAPS IN PLAINTIFF'S PROOF OF CAUSATION BUT DID NOT AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF CAUSATION (FIRST DEPT))/CIVIL PROCEDURE (SUMMARY JUDGMENT, DEFENDANT DETOXIFICATION FACILITY NOT ENTITLED TO SUMMARY JUDGMENT IN ACTION BASED UPON THE DEATH OF A MAN WHO WAS TREATED, LEFT AND WAS FOUND DEAD A MONTH LATER, DEFENDANTS POINTED TO GAPS IN PLAINTIFF'S PROOF OF CAUSATION BUT DID NOT AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF CAUSATION (FIRST DEPT)/EVIDENCE (SUMMARY JUDGMENT, DEFENDANT DETOXIFICATION FACILITY NOT ENTITLED TO SUMMARY JUDGMENT IN ACTION BASED UPON THE DEATH OF A MAN WHO WAS TREATED, LEFT AND WAS FOUND DEAD A MONTH LATER, DEFENDANTS POINTED TO GAPS IN PLAINTIFF'S PROOF OF CAUSATION BUT DID NOT AFFIRMATIVELY DEMONSTRATE THE ABSENCE OF CAUSATION (FIRST DEPT))/DETOXIFICATION FACILITY (NOT A NURSING HOME, NOT SUBJECT TO THE PUBLIC HEALTH LAW (FIRST DEPT))/PUBLIC HEALTH LAW (DETOXIFICATION FACILITY, NOT A NURSING HOME, NOT SUBJECT TO THE PUBLIC HEALTH LAW (FIRST DEPT))

EXPERT EVIDENCE THAT A SAFETY DEVICE WAS NOT NECESSARY IN THIS FALLING OBJECTS CASE DID NOT CREATE A QUESTION OF FACT, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined plaintiff was entitled to summary judgment in this falling objects case. Plaintiff was making an opening in a concrete wall when cinderblocks above the opening fell on him. The court held that the cinderblocks should have been secured and no safety device had been employed. Expert evidence that no safety device was needed did not create a question of fact:

… [T]he testimony and expert opinion that a safety device was neither necessary nor customary “is insufficient to establish the absence of a Labor Law § 240 (1) violation” … . O'Brien v Port Auth. of N.Y. & N.J. (29 NY3d 27 [2017]) is not to the contrary. Unlike in O'Brien, the experts here do not differ as to whether a safety device that was provided was adequate, but rather differ as to whether a safety device was required at all … . In light of the uncontroverted fact that no safety devices were provided, it would be error to submit to the jury for their resolution the conflicting expert opinion as to what safety devices, if any, should have been employed … . Gonzalez v Paramount Group, Inc., 2018 NY Slip Op 00029, First Dept 1-2-18

LABOR LAW-CONSTRUCTION LAW (EXPERT EVIDENCE THAT A SAFETY DEVICE WAS NOT NECESSARY IN THIS FALLING OBJECTS CASE DID NOT CREATE A QUESTION OF FACT, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT))/EVIDENCE (LABOR LAW-CONSTRUCTION LAW, EXPERT EVIDENCE THAT A SAFETY DEVICE WAS NOT NECESSARY IN THIS FALLING OBJECTS CASE DID NOT CREATE A QUESTION OF FACT, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT))/FALLING OBJECTS (LABOR LAW-CONSTRUCTION LAW, EXPERT EVIDENCE THAT A SAFETY DEVICE WAS NOT NECESSARY IN THIS FALLING OBJECTS CASE DID NOT CREATE A QUESTION OF FACT, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT))

,

CERTIFICATION AS A SEX OFFENDER OCCURS UPON CONVICTION AND IS NOT REVIEWABLE IN A SORA RISK ASSESSMENT PROCEEDING (FIRST DEPT).

The First Department determined whether defendant should have been adjudicated a sex offender was not reviewable in a SORA risk assessment proceeding. Defendant was convicted of unlawful surveillance for making cell phone videos under women's dresses on the subway. Pursuant to the statute, unlawful surveillance is a sex offense, However the defendant can make a motion asking the court to find registration as a sex offender too harsh under the particular circumstances:

We agree with the People that the statute does not give a SORA court the power to determine a motion under Correction Law § 168-a(2)(e). While we find it significant that the provision assigns the duty of ruling on the motion to “the trial court” — notably the only time that phrase is used in SORA's numerous sections — we do not consider the use of the phrase to be a sufficient basis for our interpretation, because it is arguably malleable enough not to be limited to the court that actually presided over the defendant's trial. However, Correction Law § 168-d(1)(a), describing the “duties of the court,” provides a more definite indication of statutory intent, by way of language that clearly contemplates that certification as a sex offender occurs “upon conviction” and after consideration of any motion pursuant to Correction Law § 168-a(2)(e). Nothing else in the statutory scheme contradicts this understanding. People v Lema, 2018 NY Slip Op 00005, First Dept 1-2-18

CRIMINAL LAW (CERTIFICATION AS A SEX OFFENDER OCCURS UPON CONVICTION AND IS NOT REVIEWABLE IN A SORA RISK ASSESSMENT PROCEEDING (FIRST DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (CERTIFICATION AS A SEX OFFENDER OCCURS UPON CONVICTION AND IS NOT REVIEWABLE IN A SORA RISK ASSESSMENT PROCEEDING (FIRST DEPT))/SEX OFFENDER (CERTIFICATION AS A SEX OFFENDER OCCURS UPON CONVICTION AND IS NOT REVIEWABLE IN A SORA RISK ASSESSMENT PROCEEDING (FIRST DEPT))

,

DEFENDANT’S CONVICTION UPHELD DESPITE INVALID WAIVER OF THE RIGHT TO COUNSEL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, determined defendant's waiver of his right to counsel was invalid, but deemed the error harmless and upheld his conviction. The defendant repeatedly represented himself at court appearances, repeatedly allowed counsel to represent him, and repeatedly refused to continue and left the courtroom. The trial was ultimately conducted in his absence. The First Department held that the failure to make sure defendant was aware that he faced a maximum of 15 years in prison rendered the waiver of counsel invalid. However, the suppression motion was deemed to have no chance of success and the trial evidence was deemed overwhelming:

The “normal remedy for a violation of the right to counsel at a suppression hearing is a new suppression hearing, with a new trial to follow if, after the new hearing, the evidence is suppressed” … . However, a new hearing would serve no purpose, and need not be ordered, where it is clear beyond a reasonable doubt that the result at a new trial would be the same even if the defendant prevailed at the suppression hearing. …

​

Even assuming counsel would some how be successful in arguing for the suppression of statements and property recovered, the evidence of defendant's guilt was overwhelming. Defendant was caught red-handed. …

Similarly, even assuming counsel would have been able to secure a more favorable Sandoval ruling, and defendant would have testified on his own behalf, the evidence overwhelmingly proved defendant knowingly and unlawfully entered the … apartment with the intent to take property. People v Rodriguez, 2018 NY Slip Op 00040, First Dept 1-2-18

CRIMINAL LAW (RIGHT TO COUNSEL, DEFENDANT'S CONVICTION UPHELD DESPITE INVALID WAIVER OF THE RIGHT TO COUNSEL (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, RIGHT TO COUNSEL, DEFENDANT'S CONVICTION UPHELD DESPITE INVALID WAIVER OF THE RIGHT TO COUNSEL (FIRST DEPT))/RIGHT TO COUNSEL (CRIMINAL LAW, DEFENDANT'S CONVICTION UPHELD DESPITE INVALID WAIVER OF THE RIGHT TO COUNSEL (FIRST DEPT))/WAIVER, RIGHT TO COUNSEL  (CRIMINAL LAW, DEFENDANT'S CONVICTION UPHELD DESPITE INVALID WAIVER OF THE RIGHT TO COUNSEL (FIRST DEPT))

, ,

PLAINTIFF AND HIS ATTORNEY EACH SANCTIONED $5000 FOR FRIVOLOUS ACTION AND APPEAL (FIRST DEPT).

The First Department imposed $5000 sanctions (each) upon plaintiff and his attorney in this matrimonial matter. The underlying action attacking a stipulation (which had already been appealed) and the appeal were deemed frivolous:

We grant defendant's request that we impose sanctions upon plaintiff and his counsel (22 NYCRR 130-1.1[a]). The action below, and the appeal before us now, both of which counsel prosecuted, are plainly without merit (22 NYCRR 130-1.1[c][1]). Moreover, this appeal constitutes plaintiff's third unsuccessful challenge in this Court to the stipulation of settlement, which the parties entered into in 2012 … . In our 2016 decision and order, which affirmed, inter alia, an award of counsel fees to defendant, we held that the award was proper based in part on plaintiff's “multiple, unsuccessful attempts to void or rescind the support provisions contained in the stipulation” … . Where a matrimonial litigant engages in a “relentless campaign to prolong th[e] litigation,” sanctions in this Court are appropriate … . Sonkin v Sonkin, 2018 NY Slip Op 00011, First Dept 1-2-18

ATTORNEYS (PLAINTIFF AND HIS ATTORNEY EACH SANCTIONED $5000 FOR FRIVOLOUS ACTION AND APPEAL (FIRST DEPT))/APPEALS (FRIVOLOUS, PLAINTIFF AND HIS ATTORNEY EACH SANCTIONED $5000 FOR FRIVOLOUS ACTION AND APPEAL (FIRST DEPT))/SANCTIONS (FRIVOLOUS ACTION AND APPEAL, (PLAINTIFF AND HIS ATTORNEY EACH SANCTIONED $5000 FOR FRIVOLOUS ACTION … ND APPEAL (FIRST DEPT))/FAMILY LAW (SANCTIONS, PLAINTIFF AND HIS ATTORNEY EACH SANCTIONED $5000 FOR FRIVOLOUS ACTION AND APPEAL (FIRST DEPT))

, ,

ALTHOUGH THE FINDING MOTHER WAS MENTALLY ILL WAS NOT APPEALABLE AS OF RIGHT, BECAUSE OF THE STIGMA THE COURT DEEMED THE NOTICE OF APPEAL TO BE A REQUEST FOR LEAVE TO APPEAL AND HEARD THE APPEAL (FIRST DEPT).

The First Department noted that a finding mother is mentally ill within the meaning of the Social Services Law is not, as a nondispositional order, appealable as of right. However, because of the stigma attached to the finding, the court deemed the notice of appeal to be a request for leave to appeal and granted it. The mental illness finding was affirmed:

Although this nondispositional order is not appealable as of right (see Family Ct Act § 1112[a]), the finding that the mother is mentally ill within the meaning of Social Services Law § 384-b constitutes a permanent and significant stigma that might impact her status in future proceedings … . Accordingly, the Court, on its own motion, deems the notice of appeal to be a request for leave to appeal, and hereby grants leave to appeal … . Matter of Chad Nasir S. (Charity Simone S.), 2018 NY Slip Op 00026, First Dept 1-2-18

APPEALS (FAMILY LAW, SOCIAL SERVICES LAW, ALTHOUGH THE FINDING MOTHER WAS MENTALLY ILL WAS NOT APPEALABLE AS OF RIGHT, BECAUSE OF THE STIGMA THE COURT DEEMED THE NOTICE OF APPEAL TO BE A REQUEST FOR LEAVE TO APPEAL AND HEARD THE APPEAL (FIRST DEPT))/FAMILY LAW (APPEALS, SOCIAL SERVICES LAW, ALTHOUGH THE FINDING MOTHER WAS MENTALLY ILL WAS NOT APPEALABLE AS OF RIGHT, BECAUSE OF THE STIGMA THE COURT DEEMED THE NOTICE OF APPEAL TO BE A REQUEST FOR LEAVE TO APPEAL AND HEARD THE APPEAL (FIRST DEPT))/MENTAL ILLNESS (APPEALS, FAMILY LAW, ALTHOUGH THE FINDING MOTHER WAS MENTALLY ILL WAS NOT APPEALABLE AS OF RIGHT, BECAUSE OF THE STIGMA THE COURT DEEMED THE NOTICE OF APPEAL TO BE A REQUEST FOR LEAVE TO APPEAL AND HEARD THE APPEAL (FIRST DEPT))/SOCIAL SERVICES LAW (APPEALS, MENTAL ILLNESS, FAMILY LAW, ALTHOUGH THE FINDING MOTHER WAS MENTALLY ILL WAS NOT APPEALABLE AS OF RIGHT, BECAUSE OF THE STIGMA THE COURT DEEMED THE NOTICE OF APPEAL TO BE A REQUEST FOR LEAVE TO APPEAL AND HEARD THE APPEAL (FIRST DEPT))

,

COURT WAS REQUIRED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, DESPITE DEFENDANT’S ERRONEOUS STATEMENT TO THE COURT THAT HE IS A US CITIZEN, DEFENDANT ALLOWED TO MOVE TO VACATE HIS PLEA (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over an extensive dissent, determined defendant should be afforded the opportunity to move to vacate his guilty plea because the court did not inform him of the deportation consequences. Although the probation report indicated defendant was not a US citizen and was undocumented, the defendant, who had a history of mental illness, told the court, when asked, the he was a US citizen. The First Department held that all defendants must be informed of the deportation consequences for non-citizens:

In People v Peque (22 NY3d 168 [2013]…), the Court of Appeals held that before accepting a plea, due process requires that a court “apprise a defendant that, if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony” … . The Court reasoned that “fundamental fairness . . . requires a trial court to make a noncitizen defendant aware of the risk of deportation because deportation frequently results from a noncitizen's guilty plea and constitutes a uniquely devastating deprivation of liberty” … . Accordingly, “a noncitizen defendant convicted of a removable crime can hardly make a voluntary and intelligent choice among the alternative courses of action'” unless informed of the possibility of deportation … .

Defendant's statement to the court that he was a citizen did not absolve the court of its obligations pursuant to Peque. Notably, Peque did not condition the need to give this warning on whether or not the court has reason to believe the defendant is not a citizen. The warning mandated by Peque is required whether the defendant is a citizen or not. Indeed, the Court of Appeals recognized that in order to protect the rights of the large number of noncitizen defendants pleading guilty to felonies in the state, it was necessary to “make all defendants aware that, if they are not United States citizens,” pleading guilty to a felony might lead to deportation … . People v Palmer, 2018 NY Slip Op 00638, First Dept 1-2-18

CRIMINAL LAW (DEPORTATION, COURT WAS REQUIRED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, DESPITE DEFENDANT'S ERRONEOUS STATEMENT TO THE COURT THAT HE IS A US CITIZEN, DEFENDANT ALLOWED TO MOVE TO VACATE HIS PLEA (FIRST DEPT))/IMMIGRATION (CRIMINAL LAW, COURT WAS REQUIRED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, DESPITE DEFENDANT'S ERRONEOUS STATEMENT TO THE COURT THAT HE IS A US CITIZEN, DEFENDANT ALLOWED TO MOVE TO VACATE HIS PLEA (FIRST DEPT))/DEPORTATION CRIMINAL LAW, COURT WAS REQUIRED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, DESPITE DEFENDANT'S ERRONEOUS STATEMENT TO THE COURT THAT HE IS A US CITIZEN, DEFENDANT ALLOWED TO MOVE TO VACATE HIS PLEA (FIRST DEPT))/PLEA, MOTION TO VACATE (CRIMINAL LAW, DEPORTATION, COURT WAS REQUIRED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, DESPITE DEFENDANT'S ERRONEOUS STATEMENT TO THE COURT THAT HE IS A US CITIZEN, DEFENDANT ALLOWED TO MOVE TO VACATE HIS PLEA (FIRST DEPT))

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy