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IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT). ​

The Fourth Department determined defendant motion to vacate his conviction should not have been denied without a hearing. A prosecution witness recanted her trial testimony:

The motion was based on the affidavit of a prosecution witness who recanted her trial testimony that defendant admitted to her that he started a certain house fire. That testimony formed the basis for defendant’s conviction of arson in the second degree. Notably, the witness averred that, “Before the trial[,] the police investigator told me if I testified on [defendant’s] behalf they would take my daughter away. I am still concerned about this.” The People did not submit an opposing affidavit from any of the police officers involved in the case. The court denied the motion without a hearing upon finding that the witness’s recantation was unreliable.

We conclude based on the totality of the circumstances that the court erred in denying that part of the motion with respect to the conviction of arson in the second degree without first holding a hearing … . The witness’s “trial testimony, if false, was extremely prejudicial to defendant inasmuch as, without that testimony, there would have been no basis for the jury to convict defendant” for setting the fire at issue in the arson in the second degree count … .  People v Grant, 2018 NY Slip Op 02951, Fourth Dept 4-27-18

​CRIMINAL LAW (VACATE CONVICTION, IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT))/ EVIDENCE (CRIMINAL LAW, VACATE CONVICTION, IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT))/VACATE CONVICTION, MOTION TO  (RECANTED TESTIMONY, IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT))/RECANTED TESTIMONY (VACATE CONVICTION,  IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT))

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JURY INSTRUCTION ALLOWED CONVICTION ON A THEORY NOT IN THE INDICTMENT, COUNT DISMISSED, SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT).

The Fourth Department determined that the harassment jury instruction was defective because it allowed the jury to convict on a theory that was not alleged in the indictment. The Fourth Department further found that the 18-year sentence for rape was unduly harsh and reduced the sentence to eight years. The Fourth Department noted that the sentencing court did not take certain mitigating factors into consideration and indicated defendant was sentenced harshly because he had decided to go to trial:

Here, the indictment charged defendant with harassment in the second degree on the ground that … he slapped the complainant with the intent to harass, annoy, or alarm her. Nevertheless, the court instructed the jury that it could find him guilty if he shoved her or subjected her to other forms of physical contact. The evidence at trial could have established either theory. Therefore, that part of the judgment convicting defendant of harassment in the second degree must be reversed … . …

… [T]he sentence imposed for rape in the first degree is unduly harsh and severe. The alleged incident occurred in the context of an intimate relationship that lasted several months between two otherwise consenting adults who were close in age. The complainant had the opportunity to report the incident to the police immediately after it happened but chose not to do so. In the recorded conversations between defendant and the complainant, which occurred two to three months after the incident, the complainant repeatedly expressed satisfaction with her relationship, and a willingness to use the criminal justice system to gain the upper hand in it. We note that defendant’s history of contacts with the criminal justice system is not extensive, and thus it does not weigh heavily against him.

The record does not indicate that the sentencing court considered any of the above substantial mitigating factors in imposing the sentence. To the contrary, the court expressed only that it wished to impose a sentence for rape in the first degree in excess of the offers made during the plea bargaining process. Indeed, the sentence of 18 years of incarceration is double that of the most recent plea offer. It is well established that a defendant may not be punished for exercising his constitutional right to a trial … . Although a sentence after trial usually will be harsher than a sentence accompanying a prior plea offer … , a defendant’s refusal to plead guilty does not absolve the court of its responsibility to consider appropriate sentencing factors … . People v Morales, 2018 NY Slip Op 02958, Fourth Dept 4-27-18

​CRIMINAL LAW (JURY INSTRUCTION ALLOWED CONVICTION ON A THEORY NOT IN THE INDICTMENT, COUNT DISMISSED, SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, JURY INSTRUCTION ALLOWED CONVICTION ON A THEORY NOT IN THE INDICTMENT, COUNT DISMISSED, SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT))/SENTENCING (SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT))/HARSH AND SEVERE (SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT))

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A DEFENDANT WHO REQUESTS A RESTITUTION HEARING IS ENTITLED TO ONE, EVEN WHERE A HEARING HAD BEEN HELD AFTER DEFENDANT’S FIRST TRIAL (FOURTH DEPT).

The Fourth Department noted that defendant had requested a restitution hearing and therefore the court was required to hold one. Defendant’s conviction in her first trial was reversed and a new trial was ordered. Even though a hearing had been held in the first proceeding, she was entitled to a hearing after the second trial:

… [T]he court erred in denying her request for a restitution hearing. It is well settled that where, as here, a defendant requests a restitution hearing, Penal Law § 60.27 (2) requires that one be provided, “irrespective of the level of evidence in the record” … . Once we reversed the prior judgment and granted defendant a new trial, she was “restored to the status obtaining before the initial trial” … and, as a result, it is irrelevant that a hearing was held following the first trial. People v Case, 2018 NY Slip Op 02995, Fourth Dept 4-27-18

​CRIMINAL LAW (A DEFENDANT WHO REQUESTS A RESTITUTION HEARING IS ENTITLED TO ONE, EVEN WHERE A HEARING HAD BEEN HELD AFTER DEFENDANT’S FIRST TRIAL (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, RESTITUTION, A DEFENDANT WHO REQUESTS A RESTITUTION HEARING IS ENTITLED TO ONE, EVEN WHERE A HEARING HAD BEEN HELD AFTER DEFENDANT’S FIRST TRIAL (FOURTH DEPT))/RESTITUTION (CRIMINAL LAW, A DEFENDANT WHO REQUESTS A RESTITUTION HEARING IS ENTITLED TO ONE, EVEN WHERE A HEARING HAD BEEN HELD AFTER DEFENDANT’S FIRST TRIAL (FOURTH DEPT))

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DEFENDANT ENTITLED TO DEMONSTRATE SHE WOULD NOT HAVE PLED GUILTY HAD SHE BEEN INFORMED OF THE DEPORTATION CONSEQUENCES, THE ISSUE SURVIVES THE WAIVER OF APPEAL AND THE FAILURE TO PRESERVE (FOURTH DEPT).

The Fourth Department determined that defendant was entitled to attempt to demonstrate she would not have pled guilty had she been informed of the deportation consequence of her plea, even though the issue had not been preserved and she had waived her right to appeal:

… [D]efendant, a noncitizen, contends that her felony guilty plea was not knowingly, voluntarily, and intelligently entered because County Court failed to advise her of the potential deportation consequences of such a plea, as required by People v Peque (22 NY3d 168 …) . As a preliminary matter, we note that defendant’s challenge to the voluntariness of her plea survives her waiver of the right to appeal… . Furthermore, contrary to the People’s contention, preservation was not required inasmuch as the record bears no indication that defendant knew about the possibility of deportation … . With respect to defendant’s substantive contention, the People correctly concede that the court did not properly advise defendant of the deportation consequences of her plea. We therefore hold the case, reserve decision and remit the matter to County Court to afford defendant an opportunity to move to vacate her plea based upon a showing that “there is a reasonable probability’ that she would not have pleaded guilty had she known that she faced the risk of being deported as a result of the plea” … . People v Roman, 2018 NY Slip Op 03048, Fourth Dept 4-27-18

​CRIMINAL LAW (DEFENDANT ENTITLED TO DEMONSTRATE SHE WOULD NOT HAVE PLED GUILTY HAD SHE BEEN INFORMED OF THE DEPORTATION CONSEQUENCES, THE ISSUE SURVIVES THE WAIVER OF APPEAL AND THE FAILURE TO PRESERVE (FOURTH DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT ENTITLED TO DEMONSTRATE SHE WOULD NOT HAVE PLED GUILTY HAD SHE BEEN INFORMED OF THE DEPORTATION CONSEQUENCES, THE ISSUE SURVIVES THE WAIVER OF APPEAL AND THE FAILURE TO PRESERVE (FOURTH DEPT))/IMMIGRATION (CRIMINAL LAW, DEPORTATION, DEFENDANT ENTITLED TO DEMONSTRATE SHE WOULD NOT HAVE PLED GUILTY HAD SHE BEEN INFORMED OF THE DEPORTATION CONSEQUENCES, THE ISSUE SURVIVES THE WAIVER OF APPEAL AND THE FAILURE TO PRESERVE (FOURTH DEPT))/DEPORTATION (CRIMINAL LAW, DEFENDANT ENTITLED TO DEMONSTRATE SHE WOULD NOT HAVE PLED GUILTY HAD SHE BEEN INFORMED OF THE DEPORTATION CONSEQUENCES, THE ISSUE SURVIVES THE WAIVER OF APPEAL AND THE FAILURE TO PRESERVE (FOURTH DEPT))/PLEA, MOTION TO VACATE (DEFENDANT ENTITLED TO DEMONSTRATE SHE WOULD NOT HAVE PLED GUILTY HAD SHE BEEN INFORMED OF THE DEPORTATION CONSEQUENCES, THE ISSUE SURVIVES THE WAIVER OF APPEAL AND THE FAILURE TO PRESERVE (FOURTH DEPT))

SENTENCE IMPOSED AFTER FAILURE TO PAY RESTITUTION UNDULY HARSH AND SEVERE (FOURTH DEPT).

The Fourth Department determined the sentence imposed based upon failure to pay restitution was harsh and excessive:

… [T]he sentence imposed by County Court is unduly harsh and severe. The sole basis for the declaration of delinquency was defendant’s failure to pay restitution to the victims of his crimes, and the declaration was filed approximately four months after defendant was placed on probation. Defendant admitted to the violation and, by the time of sentencing, he had paid $2,500 of the $17,775 he owed in restitution. The court nevertheless revoked probation and sentenced defendant to the maximum term of imprisonment for each offense with the sentences running consecutively, for an aggregate sentence of 3⅓ to 10 years.

Inasmuch as defendant’s crimes are nonviolent and he had no prior criminal record aside from a misdemeanor charge to which he pleaded guilty the day before his plea in this case, we modify the judgment as a matter of discretion in the interest of justice by directing that the sentences run concurrently, thus reducing the aggregate sentence to 2⅓ to 7 years … .  People v Lloyd, 2018 NY Slip Op 03032, Fourth Dept 4-27-18

​CRIMINAL LAW (SENTENCE IMPOSED AFTER FAILURE TO PAY RESTITUTION UNDULY HARSH AND SEVERE (FOURTH DEPT))/SENTENCING (SENTENCE IMPOSED AFTER FAILURE TO PAY RESTITUTION UNDULY HARSH AND SEVERE (FOURTH DEPT))/HARSH AND SEVERE (SENTENCE IMPOSED AFTER FAILURE TO PAY RESTITUTION UNDULY HARSH AND SEVERE (FOURTH DEPT))

THE PEOPLE’S GROUND FOR STEP ONE OF THE BATSON CHALLENGE PROCEDURE WAS NOT FACTUALLY CORRECT, THE JUDGE SHOULD NOT HAVE PROCEEDED TO STEP TWO AND THE JUROR SHOULD NOT HAVE BEEN SEATED (FOURTH DEPT).

The Fourth Department reversed defendant’s conviction and dismissed the indictment because of the court’s errors in handling a Batson challenge. The People argued that defense counsel was using all peremptory challenges to exclude women, which was not the case. The court accepted the argument and proceeded to step two of the Batson procedure by asking defense counsel for a gender neutral explanation. Defense counsel stated that the potential juror was a nurse and may have seen victims of domestic abuse. The judge did not accept defense counsel’s reason. The Fourth Department found that step one of the procedure was flawed because defense counsel had excluded both men and women, and noted that the reason given by defense counsel for step two was sufficient:

… [T]he issue whether the People established a prima facie case of discrimination at step one of the Batson inquiry is not moot. Whether a Batson applicant made out a prima facie case of discrimination is moot only if the court proceeded to step three of the inquiry and ” has ruled on the ultimate question of intentional discrimination’ “… . Here, however, the court “stopped at step two and wrongly stated that the proffered reason for the challenge was not [gender] neutral[, and thus] . . . it cannot be said that the trial court [had] ruled on the ultimate question of intentional discrimination’ “… .

With respect to the merits of defendant’s contention concerning the step one inquiry, we agree with him that the People failed to establish a prima facie case of discrimination. The only ground asserted by the People in support of their Batson application was that every peremptory challenge exercised by defendant was used to strike a woman from the jury panel. As defendant argued in opposition, the People’s assertion was incorrect. In fact, defendant had previously exercised peremptory challenges to excuse two men from the jury panel. Thus, the only fact articulated by the People in support of their Batson application is belied by the record. Inasmuch as the People failed to make out a prima facie case of discrimination, the court erred in proceeding to step two of the inquiry and ultimately in seating the juror notwithstanding defendant’s peremptory challenge … . People v Smouse, 2018 NY Slip Op 02921, Fourth Dept 4-27-18

​CRIMINAL LAW (JURORS, BATSON, THE PEOPLE’S GROUND FOR STEP ONE OF THEIR BATSON CHALLENGE WAS NOT FACTUALLY CORRECT, THE JUDGE SHOULD NOT HAVE PROCEEDED TO STEP TWO AND THE JUROR SHOULD NOT HAVE BEEN SEATED (FOURTH DEPT))/JURORS (CRIMINAL LAW, BATSON, THE PEOPLE’S GROUND FOR STEP ONE OF THEIR BATSON CHALLENGE WAS NOT FACTUALLY CORRECT, THE JUDGE SHOULD NOT HAVE PROCEEDED TO STEP TWO AND THE JUROR SHOULD NOT HAVE BEEN SEATED (FOURTH DEPT))/BATSON CHALLENGE (CRIMINAL LAW, JURORS, THE PEOPLE’S GROUND FOR STEP ONE OF THEIR BATSON CHALLENGE WAS NOT FACTUALLY CORRECT, THE JUDGE SHOULD NOT HAVE PROCEEDED TO STEP TWO AND THE JUROR SHOULD NOT HAVE BEEN SEATED (FOURTH DEPT))

UNDER THE DRUG LAW REFORM ACT (DRLA) A DEFENDANT CONVICTED OF A QUALIFYING DRUG FELONY CANNOT BE SENTENCED AS A PERSISTENT FELONY OFFENDER (FOURTH DEPT). ​

The Fourth Department, reversing County Court, in a full-fledged opinion by Justice DeJoseph, in a matter of first impression, determined a defendant convicted of a qualifying drug felony cannot, under the Drug Law Reform Act (DLRA), be sentenced as a persistent felony offender (PFO):

In March 2016, defendant, by counsel, moved pursuant to CPL 440.20 to vacate his sentence on the ground that he was illegally sentenced as a PFO. Defendant contended that, because the crimes of CPCS in the third degree (Penal Law § 220.16 [1]) and CSCS in the third degree (§ 220.39 [1]) fall within Penal Law article 220, a defendant convicted of those crimes is not subject to sentencing as a PFO. Defendant contended that the 2004 DLRA removed the trial court’s discretion to sentence a defendant convicted of controlled substance or marihuana offenses as a PFO. * * *

The plain language of the statutes is clear that, when a defendant is convicted of a drug offense, he or she must be sentenced under the provisions outlined by Penal Law § 60.04, “notwithstanding the provisions of any law.” Thus, inasmuch as section 60.04 does not authorize sentencing such a defendant as a PFO, such a defendant cannot be sentenced pursuant to any provisions that do authorize sentencing as a PFO. While there are no definitive rulings on this issue by the Court of Appeals or any of the Appellate Divisions, trial courts have held that a drug offender is ineligible for PFO sentencing … .

As noted by the Court of Appeals, “when the legislature enacted the . . . DLRA, it sought to ameliorate the excessive punishments meted out to low-level, nonviolent drug offenders under the so-called Rockefeller Drug Laws, and therefore the statute is designed to spread relief as widely as possible, within the bounds of reason, to its intended beneficiaries” … . We believe that our interpretation of the DLRA is consistent with the remedial purpose of the DLRA, and we therefore conclude that Penal Law §§ 60.04 and 70.70 operate to preclude a court from sentencing a defendant found guilty of a qualifying drug felony as a PFO. People v Boykins, 2018 NY Slip Op 02919, Fourth Dept 4-27-18

​CRIMINAL LAW (UNDER THE DRUG LAW REFORM ACT (DRLA) A DEFENDANT CONVICTED OF A QUALIFYING DRUG FELONY CANNOT BE SENTENCED AS A PERSISTENT FELONY OFFENDER (FOURTH DEPT))/SENTENCING (PERSISTENT FELONY OFFENDER, UNDER THE DRUG LAW REFORM ACT (DRLA) A DEFENDANT CONVICTED OF A QUALIFYING DRUG FELONY CANNOT BE SENTENCED AS A PERSISTENT FELONY OFFENDER (FOURTH DEPT))/DRUG LAW REFORM ACT (PERSISTENT FELONY OFFENDER, UNDER THE DRUG LAW REFORM ACT (DRLA) A DEFENDANT CONVICTED OF A QUALIFYING DRUG FELONY CANNOT BE SENTENCED AS A PERSISTENT FELONY OFFENDER (FOURTH DEPT))/PERSISTENT FELONY OFFENDER (DRUG LAW REFORM ACT (DLRA), UNDER THE DRUG LAW REFORM ACT (DRLA) A DEFENDANT CONVICTED OF A QUALIFYING DRUG FELONY CANNOT BE SENTENCED AS A PERSISTENT FELONY OFFENDER (FOURTH DEPT))

PRO SE PLAINTIFF’S CAUSE OF ACTION ALLEGING THE DEFENDANT ATTORNEY’S FEE WAS UNCONSCIONABLE SHOULD NOT HAVE BEEN DISMISSED, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court determined the cause action alleging defendant attorney’s fee was unconscionable should not have been dismissed. The court further determined that plaintiff’s motion to disqualify defendant’s attorney because plaintiff had initially consulted with an attorney at the defendant’s attorney’s firm was properly denied:

Accepting as true the allegations in the complaint and the averments in the affidavits submitted in opposition to the motion, we conclude that plaintiff has sufficiently alleged the elements of procedural and substantive unconscionability. As for procedural unconscionability, plaintiff alleged that, before entering into the agreement, he was not informed of the nature of the anticipated charges or the prospects of incarceration, and he was led to believe that defendant would be able to resolve the case without a prison sentence. At the time he entered into the agreement, plaintiff was in the hospital, and defendant was, or was perceived to be, an experienced attorney with unparalleled expertise in defending against cases involving driving while intoxicated. As for substantive unconscionability, plaintiff alleged that defendant’s $125,000 fee was at least three times larger than, and thus drastically out of proportion with, fees charged in similar cases. We further conclude that defendant’s evidentiary submissions in support of the motion, which included his own affidavit and that of an expert, did not conclusively establish that the agreement was ” fair, reasonable, and fully known and understood’ ” by plaintiff … . …

[The submitted] affidavits establish that the attorney with whom plaintiff consulted had no recollection and kept no notes of the consultation, did not share with defendant’s attorney any information that he learned during the consultation, and would not discuss the present action with defendant’s attorney in the future. Furthermore, the affidavits establish that the law firm employs screening procedures consistent with the Rules of Professional Conduct and that defendant’s attorney would not be sharing any fees with the attorney with whom plaintiff consulted. Thus, the affidavits establish compliance with rule 1.18 of the Rules of Professional Conduct (22 NYCRR 1200.0), and we conclude that the court properly exercised its discretion in denying the motion … . Divito v Fiandach, 2018 NY Slip Op 02922, Fourth Dept 4-27-18

ATTORNEYS (PRO SE PLAINTIFF’S CAUSE OF ACTION ALLEGING THE DEFENDANT ATTORNEY’S FEE WAS UNCONSCIONABLE SHOULD NOT HAVE BEEN DISMISSED, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT))/ATTORNEY’S FEES (UNCONSCIONABLE, PRO SE PLAINTIFF’S CAUSE OF ACTION ALLEGING THE DEFENDANT ATTORNEY’S FEE WAS UNCONSCIONABLE SHOULD NOT HAVE BEEN DISMISSED, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT))/UNCONSCIONABLE ATTORNEY’S FEES  (PRO SE PLAINTIFF’S CAUSE OF ACTION ALLEGING THE DEFENDANT ATTORNEY’S FEE WAS UNCONSCIONABLE SHOULD NOT HAVE BEEN DISMISSED, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT))/DISQUALIFICATION OF ATTORNEYS (MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT))/CONFLICT OF INTEREST (ATTORNEYS, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT))/RULES OF PROFESSIONAL CONDUCT (ATTORNEYS, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT))

PLAINTIFF ENTITLED TO RECOVER FROM DEFENDANT THE COST OF ALTERNATE SERVICE BECAUSE DEFENDANT DID NOT RETURN THE ACKNOWLEDGMENT OF RECEIPT (CPLR 312-a) UPON BEING SERVED BY MAIL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff was entitled to the costs of serving the defendant by alternate means after defendant failed to return the acknowledgment of receipt (of service by mail) was not returned within 30 days:

Plaintiff commenced this negligence action by serving defendants by mail pursuant to CPLR 312-a (a) and thereafter utilized “an alternative method” of service of process when “the acknowledgment of receipt” was not returned by defendants or the other persons set forth in CPLR 312-a (b) within the requisite 30-day period. Plaintiff moved for, inter alia, an immediate judgment in the amount of $110.53, i.e., the amount expended by plaintiff in serving defendants by the alternative method of service of process … . … Supreme Court erred in denying that part of plaintiff’s motion… . Here, plaintiff submitted prima facie evidence that his attorney mailed the requisite documents to defendants pursuant to CPLR 312-a (a), and defendants failed to raise an issue of fact with respect to that service. McGriff v Mallory, 2018 NY Slip Op 03003, Third Dept 4-26-18

​CIVIL PROCEDURE (COST OF ALTERNATE SERVICE, PLAINTIFF ENTITLED TO RECOVER FROM DEFENDANT THE COST OF ALTERNATE SERVICE BECAUSE DEFENDANT DID NOT RETURN THE ACKNOWLEDGMENT OF RECEIPT (CPLR 312-a) UPON BEING SERVED BY MAIL (FOURTH DEPT))/CPLR 312-a  (COST OF ALTERNATE SERVICE, PLAINTIFF ENTITLED TO RECOVER FROM DEFENDANT THE COST OF ALTERNATE SERVICE BECAUSE DEFENDANT DID NOT RETURN THE ACKNOWLEDGMENT OF RECEIPT (CPLR 312-a) UPON BEING SERVED BY MAIL (FOURTH DEPT))/ALTERNATIVE SERVICE, COST OF (CIVIL PROCEDURE, PLAINTIFF ENTITLED TO RECOVER FROM DEFENDANT THE COST OF ALTERNATE SERVICE BECAUSE DEFENDANT DID NOT RETURN THE ACKNOWLEDGMENT OF RECEIPT (CPLR 312-a) UPON BEING SERVED BY MAIL (FOURTH DEPT))

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NUISANCE AND TRESPASS ACTIONS BASED UPON SURFACE WATER WERE NOT CONTINUING TORTS AND WERE THEREFORE TIME-BARRED, CRITERIA FOR CONTINUING TORTS IN THIS CONTEXT EXPLAINED (FOURTH DEPT).

The Fourth Department determined the nuisance and trespass actions based upon the alleged diversion of surface water were not continuing torts and were therefore time-barred:

Defendants established that the nuisance and trespass causes of action accrued, at the latest, in June 2010, which is when plaintiff received the information from the USACE [US Army Corps of Engineers] and the damage to its property was apparent … .

Plaintiff contends that, because the water flows continually onto its property, the torts are continuous in nature and, as a result, plaintiff’s causes of action for nuisance and trespass are not time-barred. We reject that contention. Courts will apply the continuing wrong doctrine in cases of ” nuisance or continuing trespass where the harm sustained by the complaining party is not exclusively traced to the day when the original objectionable act was committed’ “… . Here, plaintiff’s allegations establish that its damages may be traced to a specific, objectionable act, i.e., the implementation of the remedial plan. Where, as here, there is an original, objectionable act, “the accrual date does not change as a result of continuing consequential damages” … . EPK Props., LLC v PFOHL Bros. Landfill Site Steering Comm., 2018 NY Slip Op 02085, Fourth Dept 3-23-18

REAL PROPERTY LAW (NUISANCE AND TRESPASS ACTIONS BASED UPON SURFACE WATER WERE NOT CONTINUING TORTS AND WERE THEREFORE TIME-BARRED, CRITERIA FOR CONTINUING TORTS IN THIS CONTEXT EXPLAINED (FOURTH DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, CONTINUING TORTS, NUISANCE AND TRESPASS ACTIONS BASED UPON SURFACE WATER WERE NOT CONTINUING TORTS AND WERE THEREFORE TIME-BARRED, CRITERIA FOR CONTINUING TORTS IN THIS CONTEXT EXPLAINED (FOURTH DEPT))/STATUTE OF LIMITATIONS (CONTINUING TORTS, NUISANCE AND TRESPASS ACTIONS BASED UPON SURFACE WATER WERE NOT CONTINUING TORTS AND WERE THEREFORE TIME-BARRED, CRITERIA FOR CONTINUING TORTS IN THIS CONTEXT EXPLAINED (FOURTH DEPT))/NUISANCE (SURFACE WATER, CONTINUING TORTS, NUISANCE AND TRESPASS ACTIONS BASED UPON SURFACE WATER WERE NOT CONTINUING TORTS AND WERE THEREFORE TIME-BARRED, CRITERIA FOR CONTINUING TORTS IN THIS CONTEXT EXPLAINED (FOURTH DEPT))/TRESPASS (SURFACE WATER, CONTINUING TORTS, NUISANCE AND TRESPASS ACTIONS BASED UPON SURFACE WATER WERE NOT CONTINUING TORTS AND WERE THEREFORE TIME-BARRED, CRITERIA FOR CONTINUING TORTS IN THIS CONTEXT EXPLAINED (FOURTH DEPT))/SURFACE WATER (NUISANCE AND TRESPASS ACTIONS BASED UPON SURFACE WATER WERE NOT CONTINUING TORTS AND WERE THEREFORE TIME-BARRED, CRITERIA FOR CONTINUING TORTS IN THIS CONTEXT EXPLAINED (FOURTH DEPT))

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