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WHEN A PARTY’S ATTORNEY APPEARS THE PARTY IS NOT IN DEFAULT AND MAY THEREFORE APPEAL, FAMILY COURT SHOULD NOT HAVE AWARDED CUSTODY TO NONPARENTS ABSENT A HEARING DEMONSTRATING EXTRAORDINARY CIRCUMSTANCES AND THE BEST INTERESTS OF THE CHILD (FOURTH DEPT).

The Fourth Department determined mother was not in default, because her attorney had appeared, and therefore mother can appeal the award of custody to the nonparent petitioners. The Fourth Department further determined Family Court should have held a hearing to determine whether extraordinary circumstances justified awarding custody to nonparents. The prior consent order of custody in favor of the nonparents does not demonstrate extraordinary circumstances:

“A parent’s right to be heard on a matter of child custody is fundamental and not to be disregarded absent a convincing showing of waiver’ ” … . Moreover, “[i]t is well established that, as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances” … and further establishes that an award of custody to the nonparent is in the best interests of the child … . “The burden of proving extraordinary circumstances rests on the nonparent, and the mere existence of a prior consent order of custody in favor of the nonparent is not sufficient to demonstrate extraordinary circumstances”… . Inasmuch as the court erred in depriving the mother of custody without conducting the requisite evidentiary hearing … , we reverse and remit the matter to Family Court for a hearing on the custody petition. Matter of Hilton v Hilton, 2019 NY Slip Op 04572, Fourth Dept 6-7-19

 

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MATTER SENT BACK FOR A DETERMINATION WHETHER THE PEOPLE PRESENTED NEW EVIDENCE TO THE SECOND GRAND JURY AFTER A ‘NO BILL,’ THE PEOPLE WERE GRANTED PERMISSION TO RE-PRESENT ON THE GROUND THAT NEW EVIDENCE WAS AVAILABLE (FOURTH DEPT).

The Fourth Department sent the case back for a ruling on a portion of defendant’s omnibus motions. The grand jury had returned a “no bill” on the leaving the scene of a serious injury accident. The People sought to re-present the charges to a new grand jury alleging that a witness who had given false testimony had agreed to testify truthfully. Defendant, in her omnibus motion, asked to court to compare the testimony given to both grand juries to see if new evidence was actually presented at the second grand jury:

CPL 190.75 (3) provides that where, as here, charges have been dismissed by the grand jury, they “may not again be submitted to a grand jury unless the court in its discretion authorizes or directs the [P]eople to resubmit such charge[s] to the same or another grand jury.” “Leave may be granted only once, and the [People are] required to justify resubmission” … . “[T]here should not be a resubmission unless it appears, for example, that new evidence has been discovered since the former submission; that the [g]rand [j]ury failed to give the case a complete and impartial investigation; or that there is a basis for believing that the [g]rand [j]ury otherwise acted in an irregular manner” … . …

 … “[W]e cannot deem the court’s failure to rule on [that part of] the . . . motion as a denial thereof”… . We therefore hold the case, reserve decision, and remit the matter to Supreme Court for a determination whether the People, in fact, presented new evidence to the second grand jury and, if not, whether dismissal of the indictment is warranted on that ground … . People v Ballowe, 2019 NY Slip Op 04566, Fourth Dept 6-7-19

 

CONSECUTIVE SENTENCES FOR THE SALE OF SMALL AMOUNTS OF COCAINE UNDULY HARSH, CONCURRENT SENTENCES IMPOSED (FOURTH DEPT).

The Fourth Department determined the consecutive sentences for the sale of small amounts of cocaine was unduly harsh and imposed concurrent sentences. The defendant had been promised concurrent sentences of four years prior to trial. After trial consecutive seven-year sentences were imposed:

Here, the record establishes that defendant was 35 years old at the time of these events, and that his only prior record consisted of misdemeanor offenses. He was convicted in Oneida County Court of a similar offense to these crimes, arising from an incident that occurred contemporaneously with these crimes, and he was sentenced to a determinate term of two years’ incarceration plus two years’ postrelease supervision on that conviction. The crimes at issue involved sales of small amounts of cocaine, and the record contains no indication that defendant is a large-scale drug dealer. Although prior to trial the court had agreed that, if defendant pleaded guilty, it would impose a sentence of four years’ incarceration on each count to run concurrent with each other and the Oneida County sentence, after the trial the court imposed determinate terms of seven years’ incarceration plus two years’ postrelease supervision on each count, to run consecutively to each other. People v Reid, 2019 NY Slip Op 04565, Fourth Dept 6-7-19

 

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DEFENDANTS DID NOT DEMONSTRATE WHEN THE CAUSE OF ACTION FOR LEAD-PAINT EXPOSURE ACCRUED, THEREFORE THE SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED ON THE GROUND THAT THE STATUTE OF LIMITATIONS HAD EXPIRED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that defendant’s failed to demonstrate when the lead-paint-exposure cause of action accrued. Therefore the motion for summary judgment on the ground that the statute of limitations had passed should not have been granted:

In moving to dismiss the complaint on statute of limitations grounds, each defendant had “the initial burden of establishing prima facie that the time in which to sue ha[d] expired . . . and thus was required to establish, inter alia, when the plaintiff[s’] cause of action accrued” …  Here, neither defendant established the relevant accrual date of plaintiffs’ claims for injury caused by the latent effects of lead paint exposure and, in the absence of such evidence, neither defendant made a prima facie showing that the applicable limitations period had expired on those claims … . Supreme Court thus erred in granting defendants’ respective motions to that extent. We note that, at oral argument in these appeals, plaintiffs conceded that their claims for patent injuries arising from such exposure were properly dismissed as time-barred. Chaplin v Tompkins, 2019 NY Slip Op 04562, Fourth Dept 6-7-19

 

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PETITIONER DID NOT LIVE IN THE TOWN WHERE THE CHALLENGED CANDIDATE WAS RUNNING FOR OFFICE AND THEREFORE DID NOT HAVE STANDING TO CHALLENGE THE DESIGNATING PETITIONS, SUPREME COURT SHOULD NOT HAVE STRUCK THE RESPONDENT CANDIDATES’ ANSWER BASED UPON ALLEGED DEFECTS IN THE VERIFICATION AND DENIALS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the respondent candidates’ answer should not have been stricken based upon alleged defects in the verification and denials and petitioner did not have standing to contest the designating petition because she did not reside in the town where the single challenged candidate was running for office:

CPLR 3026 provides that “[p]leadings shall be liberally construed” and that “[d]efects shall be ignored if a substantial right of a party is not prejudiced.” Here, we conclude that petitioner did not establish substantial prejudice from any alleged defect in the verification, and thus candidate respondents’ answer should not have been stricken on that ground … . Moreover, “the CPLR does not provide for the striking of improper denials” … .

Furthermore, we note that candidate respondents properly raised standing as an affirmative defense in their April 24 answer, and we agree with candidate respondents that petitioner lacked standing to commence this proceeding pursuant to Election Law article 16. A condition precedent to commencing a proceeding as an objector pursuant to section 16-102 is compliance with the requirements of section 6-154, including that the objector be a “voter registered to vote for such public office” (§ 6-154 [2]).

Here, petitioner served her specifications of objections upon Vickman and upon the chairwoman and the secretary of the Party only, and not on any of the other candidate respondents listed on the authorization. Petitioner, however, lacked standing to challenge the designating petition of Vickman or to challenge the authorization as it pertained to Vickman, who was running for public office in the Town of Farmersville, because petitioner was not a resident of that town … . Matter of Augostini v Bernstein, 2019 NY Slip Op 04312, Fourth Dept 5-30-19

 

ALTHOUGH THE CANDIDATE’S RESIDENCE WAS BEING RENOVATED AND SHE TEMPORARILY LIVED ELSEWHERE SHE INTENDED TO RETURN TO THE RESIDENCE WHICH WAS INDICATED ON THE DESIGNATING PETITION, THE DESIGNATING PETITION SHOULD NOT HAVE BEEN INVALIDATED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined respondent candidate’s designating petition should not have been invalidated on the ground that the she did not live at the address provided on the petition:

The record reflects that respondent was actively engaged in renovating the property at the address provided on the designating petitions, that respondent signed a temporary lease for a property also located within the relevant voting district, and that respondent intended on permanently residing at the property listed on the designating petitions once renovations were complete. Indeed, Supreme Court expressly noted that it did not “question . . . the integrity of [respondent’s] testimony in saying that [it was] her intention to live [at the address].” Notwithstanding the fact that the address listed on the designation petitions was not respondent’s current residence and thus did not comply with Election Law § 6-132, “[w]here, as here, there is no proof of any intention on the part of the candidate or of those who have solicited signatures on his [or her] behalf to mislead or confuse, and no evidence that the inaccuracy did or would lead or tend to lead to misidentification or confusion on the part of those invited to sign the petition or seeking to verify his [or her] qualification,” the petition should not be invalidated … . Matter of McNiel v Martin, 2019 NY Slip Op 04305, Fourth Dept 5-30-19

 

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THE HOSPITAL DEFENDANT WAS PROPERLY PRECLUDED FROM PRESENTING THE CPLR ARTICLE 16 DEFENSE AFTER THE OTHER POTENTIALLY LIABLE DEFENDANTS HAD BEEN SEVERED FROM THE ACTION AT THE HOSPITAL DEFENDANT’S REQUEST, AND AFTER THE HOSPITAL DEFENDANT HAD REPRESENTED TO THE COURT THE OTHER POTENTIALLY LIABLE DEFENDANTS WOULD NOT BE PART OF THE TRIAL, TWO JUSTICE DISSENT, THE HOSPITAL DEFENDANT’S REQUEST FOR THE ERROR IN JUDGMENT JURY INSTRUCTION WAS PROPERLY DENIED (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined defendant hospital was properly precluded from presenting a CPLR article 16 defense (pursuant to the defense, a party deemed 50% liable or less pays only that portion of the damages) in this medical malpractice action. Plaintiff’s decedent was first treated at defendant hospital and then at defendant rehabilitation facilities (the Elderwoods). When plaintiff’s decedent was treated at the hospital she was given a high dosage of medication, Simvastatin, and that high dosage was continued at the Elderwoods. The dosage was four times higher than plaintiff’s decedent’s usual dosage. The high dosage caused plaintiff’s decedent’s extreme suffering and death. Earlier in the litigation, the Elderwoods moved for severance, the defendant opposed and the motion was denied. As the trial approached defendant moved to sever the Elderwoods, and represented to the court that the Elderwoods involvment would not be “a topic in the main action.” Then, at the trial, after plaintiff rested, defendant gave notice that it would present evidence of the Elderwoods’ negligence and asked to have them included on the verdict sheet pursuant to CPLR article 16. Noting that the plaintiff was not able to address the article 16 defense during the jury selection and trial, the Fourth Department held that the defendant was properly precluded from presenting the defense. The court also held that defendant’s request for an error in judgment jury instruction was properly denied:

We agree with defendant that the fact that the third-party action was severed does not extinguish a defendant’s article 16 defense. But, in this case, defendant represented before the trial started that the topic of care at the Elderwoods would not be discussed. If defendant had not made this representation, then plaintiff could have preempted or otherwise addressed this anticipated defense through opening statements and plaintiff’s own lay and expert witnesses in plaintiff’s case in chief, and thus could have suggested that the Elderwoods were not negligent before resting. As plaintiff’s counsel asserts, he could have examined his witnesses at trial differently had he known that the topic of the Elderwoods’ care, and thus the CPLR article 16 defense, was still on the table. …

It is well settled that “a doctor may be liable only if the doctor’s treatment decisions do not reflect his or her own best judgment, or fall short of the generally accepted standard of care” . An “error in judgment” charge “is appropriate only in a narrow category of medical malpractice cases in which there is evidence that defendant physician considered and chose among several medically acceptable treatment alternatives” … .

This case does not fall within that narrow category … . There was simply no evidence that there was any judgment made by hospital personnel to administer 80 mg/daily of Simvastatin to decedent. Mancuso v Health, 2019 NY Slip Op 03520, Fourth Dept 5-3-19

 

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THE SEVERE EMOTIONAL DISTRESS ELEMENT OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS DOES NOT REQUIRE OBJECTIVE MEDICAL EVIDENCE (FOURTH DEPT).

The Fourth Department, over a dissent, determined it was not necessary to present objective medical evidence to establish the severe emotional distress element of intentional infliction of emotional distress:

On appeal from an order and judgment that awarded plaintiff money damages following a nonjury trial, we reject defendants’ contention that the evidence is legally insufficient to establish that plaintiff suffered severe emotional distress. Although severe emotional distress is an element of the tort of intentional infliction of emotional distress … , Supreme Court properly concluded that plaintiff was not required to present objective medical evidence in order to establish that element of her cause of action … . Fellows v Rosati, 2019 NY Slip Op 03508, Fourth Dept 5-3-19

 

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JUDGE’S SUA SPONTE ASSESSMENT OF POINTS ON A GROUND OF WHICH THE DEFENDANT WAS NOT NOTIFIED VIOLATED DEFENDANT’S DUE PROCESS RIGHT TO NOTICE AND AN OPPORTUNITY TO RESPOND (FOURTH DEPT).

The Fourth Department, reversing County Court’s SORA risk assessment, determined that the judge’s assessing points on a ground of which defendant was not given prior notice was a violation of due process. The issue was considered on appeal in the interest of justice (there was no objection at the SORA hearing):

“The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine his or her risk level pursuant to SORA and a meaningful opportunity to respond to the risk level assessment” . As a result, “[a] defendant has both a statutory and constitutional right to notice of points sought to be assigned” … , and “a court’s sua sponte departure from the Board’s recommendation at the hearing, without prior notice, deprives the defendant of a meaningful opportunity to respond” … . Here, neither the Board nor the People requested the assessment of points for a continuing course of sexual misconduct on the ground that defendant engaged in three or more acts of sexual contact with the victim over a period of at least two weeks … . At the conclusion of the SORA hearing, however, the court proceeded to assign additional points under that category on the ground that the grand jury testimony of the victim’s mother established that there was a third uncharged incident of sexual contact. Defendant was never provided any notice that points would be assessed as a result of a third uncharged incident and thus was not given a meaningful opportunity to respond to the court’s risk level assessment. People v Chrisley, 2019 NY Slip Op 03505, Fourth Dept 5-3-19

 

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ALTHOUGH THE ARGUMENT WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE, DEFENDANT INDICATED HE DID NOT UNDERSTAND THE NATURE OF THE CRIME TO WHICH HE PLED GUILTY BUT THE JUDGE MADE NO FURTHER INQUIRY, THE PLEA WAS THEREFORE NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction in the interest of justice, determined defendant’s guilty plea was not knowingly, intelligently and voluntarily entered:

We agree with defendant that his plea was not knowingly, intelligently, and voluntarily entered … . Although defendant failed to preserve that contention for our review because “his motion to withdraw his plea was made on grounds different from those advanced on appeal” … , and this case does not fall within the “narrow exception” to the preservation rule … , we exercise our power to review defendant’s contention as a matter of discretion in the interest of justice … .

“A trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences” … . After Supreme Court accepted defendant’s guilty plea, defendant stated that he was confused by the plea proceeding, and the court asked him if he had any questions about the consequences of pleading guilty. Defendant then made a series of remarks from which it became apparent that he did not understand the nature of the crime to which he had entered his guilty plea. Although defendant was “obviously confused,” the court made no further inquiry whether he understood the plea or its consequences … . People v Hector, 2019 NY Slip Op 03504, Fourth Dept 5-3-19

 

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