Tag Archive for: Fourth Department

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FRAUD ALLEGED TO HAVE BEEN COMMITTED IN A PRIOR PROCEEDING MUST BE ADDRESSED BY A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT IN A SECOND PLENARY ACTION.

The Fourth Department determined that a second plenary action for fraud allegedly committed in a foreclosure proceeding is not proper. The proper remedy is a motion to vacate the judgment in the foreclosure proceeding:

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“To the extent that the [amended] complaint alleged fraud, misrepresentation, or other misconduct of an adverse party committed during the course of the prior litigation, plaintiff[s’] sole remedy was a motion to vacate the court’s prior order pursuant to CPLR 5015 (a) (3). A litigant’s remedy for alleged fraud in the course of a legal proceeding lies exclusively in that lawsuit itself, i.e., by moving pursuant to CPLR 5015 to vacate the [judgment] due to its fraudulent procurement, not a second plenary action collaterally attacking the” judgment … .

Contrary to plaintiffs’ further contention, this case does not fit within the exception … which applies when the alleged fraud or perjury “is merely a means to the accomplishment of a larger fraudulent scheme,” i.e., one “greater in scope than [that] in the prior proceeding” … .  MAA-Sharda, Inc. v First Citizens Bank & Trust Co., 2017 NY Slip Op 03290, 4th Dept 4-28-17

FRAUD (FRAUD ALLEGED TO HAVE BEEN COMMITTED IN A PRIOR PROCEEDING MUST BE ADDRESSED BY A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT IN A SECOND PLENARY ACTION)/CIVIL PROCEDURE (FRAUD ALLEGED TO HAVE BEEN COMMITTED IN A PRIOR PROCEEDING MUST BE ADDRESSED BY A MOTION TO VACATE THE JUDGMENT IN THAT PROCEEDING, NOT IN A SECOND PLENARY ACTION)

PROOF INSUFFICIENT TO DEMONSTRATE INCARCERATED FATHER ABANDONED THE CHILDREN.

The Fourth Department, reversing Family Court, determined the proof did not demonstrate father, who was incarcerated, abandoned the children. The Fourth Department noted that the failure to offer a meaningful plan for the children’s future is not relevant to an abandonment proceeding:

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A child is deemed abandoned where, for the period six months immediately prior to the filing of the petition for abandonment . . . , a parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or [petitioner], although able to do so and not prevented or discouraged from doing so by [petitioner]’ ” … . Here, the evidence established that the father, who was incarcerated for most of the six-month period immediately prior to the filing of the petition, contacted the children or petitioner every month during that period. The father wrote letters to the children and called, met with, and wrote letters to the children’s caseworker. We conclude that the father’s contacts were not minimal, sporadic, or insubstantial … . Moreover, during that period, the father filed a petition seeking custody or visitation with the children, which indicates that he did not intend to forego his parental rights … . Although Family Court’s finding that the father failed to offer a meaningful plan for the children’s future is relevant to a termination proceeding based on permanent neglect… , it is not relevant to a termination proceeding based on abandonment … . Matter of John F. (John F., Jr.), 2017 NY Slip Op 03369, 4th Dept 4-28-17

FAMILY LAW (PROOF INSUFFICIENT TO DEMONSTRATE INCARCERATED FATHER ABANDONED THE CHILDREN)/ABANDONMENT (FAMILY LAW, PROOF INSUFFICIENT TO DEMONSTRATE INCARCERATED FATHER ABANDONED THE CHILDREN)

FAMILY COURT DOES NOT HAVE THE AUTHORITY TO ORDER COUNSELING AS A PREREQUISITE FOR FATHER’S VISITATION.

The Fourth Department, after finding father’s physical abuse of mother in the children’s presence justified a modification of custody, determined Family Court did not have the authority to order counseling as a prerequisite to father’s visitation:

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We agree with the father, however, that the court erred to the extent that it ordered that future modification of the father’s visitation is conditioned on completion of a parenting class. “[A]lthough a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation” … . Thus, “the court lack[s] the authority to condition any future application for modification of [a parent’s] visitation on her [or his] participation in . . . counseling” … . Nevertheless, the court may order that a parent’s completion of counseling and compliance therewith “would constitute a substantial change of circumstances for any future petition for modification of the order” … , provided that “[n]othing in the order prevents the [parent] from supporting a modification petition with a showing of a different change of circumstances” … . We therefore modify the order by striking the provision requiring the father to complete a parenting class as a prerequisite for modification of visitation and substituting therefor a provision directing that he comply with that condition as a component of supervised visitation. Matter of Allen v Boswell, 2017 NY Slip Op 03312, 4th Dept 4-28-17

FAMILY LAW (FAMILY COURT DOES NOT HAVE THE AUTHORITY TO ORDER COUNSELING AS A PREREQUISITE FOR FATHER’S VISITATION)/VISITATION (FAMILY LAW, FAMILY COURT DOES NOT HAVE THE AUTHORITY TO ORDER COUNSELING AS A PREREQUISITE FOR FATHER’S VISITATION)/COUNSELING (FAMILY LAW, VISITATION, FAMILY COURT DOES NOT HAVE THE AUTHORITY TO ORDER COUNSELING AS A PREREQUISITE FOR FATHER’S VISITATION)

MOTHER DID NOT DEFAULT IN THIS NEGLECT PROCEEDING BECAUSE HER ATTORNEY WAS PRESENT AND MOTHER’S ATTORNEY’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED.

The Fourth Department, reversing Family Court in this neglect proceeding, determined the matter should not have been disposed of based upon the mother’s purported default and mother’s attorney’s request for an adjournment should have been granted. The court noted that when, as here, a party’s attorney is present and participates in the proceeding a default finding is improper:

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“As we have repeatedly held, a respondent who fails to appear personally in a matter but nonetheless is represented by counsel who is present when the case is called is not in default in that matter” … . Moreover, inasmuch as the mother’s counsel objected on ten occasions during the inquest, this is not a situation where a default could be found based, at least in part, upon counsel’s ” election to stand mute’ ” during the inquest … . …

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We further agree with the mother that the court abused its discretion in denying her counsel’s request to adjourn the hearing. The request was based on the fact that the mother was unable to attend the hearing owing to illness. It is well settled that the grant or denial of a request for an adjournment for any purpose is a matter resting within the sound discretion of the trial court … . Here, the record demonstrates that the mother contacted her counsel and petitioner prior to the hearing to report her illness, that the proceedings in this matter were not protracted, that the mother personally appeared at all prior proceedings, and that the request for an adjournment was the mother’s first… . Matter of Cameron B., 2017 NY Slip Op 03299, 4th Dept 4-28-17

 

FAMILY LAW (MOTHER DID NOT DEFAULT IN THIS NEGLECT PROCEEDING BECAUSE HER ATTORNEY WAS PRESENT AND MOTHER’S ATTORNEY’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED)/DEFAULT (FAMILY LAW, MOTHER DID NOT DEFAULT IN THIS NEGLECT PROCEEDING BECAUSE HER ATTORNEY WAS PRESENT AND MOTHER’S ATTORNEY’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED)/ADJOURNMENTS (FAMILY LAW, MOTHER DID NOT DEFAULT IN THIS NEGLECT PROCEEDING BECAUSE HER ATTORNEY WAS PRESENT AND MOTHER’S ATTORNEY’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED)

REQUEST FOR AN ADJOURNMENT IN THIS FAMILY OFFENSE PROCEEDING SHOULD HAVE BEEN GRANTED.

The Fourth Department determined Family Court abused its discretion when it refused mother’s attorney’s request for an adjournment because mother could not attend the proceeding in which she was accused of committing two family offenses:

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We agree with the mother that the court abused its discretion in denying her attorney’s motion to adjourn the hearing because the mother was unable to attend. We therefore reverse the order on appeal and remit the matter to Family Court for further proceedings on the amended petition. In Family Court Act article 8 proceedings, the court “may adjourn a fact-finding hearing or a dispositional hearing for good cause shown on its own motion or on motion of either party” (Family Ct Act § 836 [a]). Although the court does not abuse its discretion in denying a request for an adjournment where the party making the request gives no reason for his or her absence … , here, the mother explained her absence. Moreover, the proceedings were not protracted, and the mother made no prior requests for an adjournment … . Matter of Drake v Riley, 2017 NY Slip Op 03282, 4th Dept 4-28-17

FAMILY LAW (REQUEST FOR AN ADJOURNMENT IN THIS FAMILY OFFENSE PROCEEDING SHOULD HAVE BEEN GRANTED)/ADJOURNMENTS (FAMILY LAW, REQUEST FOR AN ADJOURNMENT IN THIS FAMILY OFFENSE PROCEEDING SHOULD HAVE BEEN GRANTED)

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JUVENILE DELINQUENCY ADJUDICATION SHOULD NOT HAVE BEEN CONSIDERED UNDER RISK FACTOR 9.

The Fourth Department, reversing County Court, determined defendant’s juvenile delinquency adjudication should not have been used to calculate his risk level under risk factor 9:

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Defendant was assessed 15 points under risk factor 9 for a prior crime as a juvenile delinquent, and the court, relying on People v Catchings (56 AD3d 1181 … , rejected defendant’s challenge to the assessment of points under risk factor 9. As we recently held in People v Brown (148 AD3d 1705, ___), however, a juvenile delinquency adjudication may not be considered a crime for purposes of assessing points in a SORA determination, and Catchings should no longer be followed to that extent. Consequently, we conclude that the court erred in considering defendant’s juvenile delinquency adjudication in assessing 15 points under risk factor 9.

Removing the improperly assessed points under risk factor 9 renders defendant a presumptive level two risk. Under the circumstances of this case, we remit the matter to County Court for further proceedings to determine whether an upward departure is warranted … . People v Gibson, 2017 NY Slip Op 03355, 4th Dept 4-28-17

 

CRIMINAL LAW (SORA, JUVENILE DELINQUENCY ADJUDICATION SHOULD NOT HAVE BEEN CONSIDERED UNDER RISK FACTOR 9)/SEX OFFENDER REGISTRATION ACT (SORA)  (JUVENILE DELINQUENCY ADJUDICATION SHOULD NOT HAVE BEEN CONSIDERED UNDER RISK FACTOR 9)/JUVENILE DELINQUENCY ADJUDICATION (SORA, JUVENILE DELINQUENCY ADJUDICATION SHOULD NOT HAVE BEEN CONSIDERED UNDER RISK FACTOR 9)

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JUDGE PROHIBITED FROM ADDING PROBATION TO DEFENDANT’S SENTENCE OUTSIDE OF DEFENDANT’S PRESENCE, ONCE DEFENDANT WAS RELEASED FROM JAIL ANY ATTEMPT TO INCREASE HIS SENTENCE PRECLUDED BY DOUBLE JEOPARDY RULE.

The Fourth Department, in an original Article 78 proceeding, determined the judge was prohibited from imposing on defendant a sentence of probation. Defendant was sentenced to 30 days in jail. Outside the defendant’s presence the sentencing judge signed an order imposing a five-year probationary period and defendant agreed to the order by signing it in jail:

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While a court possesses the inherent authority to correct a mistake or error in a criminal defendant’s sentence … , the process by which a court corrects such an error is by resentencing the defendant … , which must be done in the defendant’s presence (see CPL 380.40 [1]). We thus conclude that the Judge erred in imposing an additional component to the sentence outside of petitioner’s presence …

We further conclude that petitioner cannot now be resentenced. It is well settled that, “where a defendant is released from custody and returns to the community after serving the period of incarceration that was ordered by the sentencing court, and the time to appeal the sentence has expired or the appeal has been finally determined,’ a legitimate expectation of the original sentence’s finality arises and double jeopardy precludes the modification of that sentence to include a period of” probation … . Here, ,,, petitioner has completed serving the period of incarceration and has been released from custody. Petitioner did not file a notice of appeal, and the time within which to do so has expired … . Although petitioner, as of this writing, could still move for an extension of time to take an appeal … , he cannot be forced to do so. We thus conclude that petitioner’s sentence is “beyond the court’s authority,” and an additional component to that sentence cannot be imposed … . Matter of Brandon v Doran, 2017 NY Slip Op 03371, 4th Dept 4-28-17

 

CRIMINAL LAW (JUDGE PROHIBITED FROM ADDING PROBATION TO DEFENDANT’S SENTENCE OUTSIDE OF DEFENDANT’S PRESENCE, ONCE DEFENDANT WAS RELEASED FROM JAIL ANY ATTEMPT TO INCREASE HIS SENTENCE PRECLUDED BY DOUBLE JEOPARDY RULE)/CIVIL PROCEDURE (ARTICLE 78, PROHIBITION, CRIMINAL LAW, JUDGE PROHIBITED FROM ADDING PROBATION TO DEFENDANT’S SENTENCE OUTSIDE OF DEFENDANT’S PRESENCE, ONCE DEFENDANT WAS RELEASED FROM JAIL ANY ATTEMPT TO INCREASE HIS SENTENCE PRECLUDED BY DOUBLE JEOPARDY RULE)/JUDGES (ARTICLE 78, PROHIBITION, CRIMINAL LAW, JUDGE PROHIBITED FROM ADDING PROBATION TO DEFENDANT’S SENTENCE OUTSIDE OF DEFENDANT’S PRESENCE, ONCE DEFENDANT WAS RELEASED FROM JAIL ANY ATTEMPT TO INCREASE HIS SENTENCE PRECLUDED BY DOUBLE JEOPARDY RULE)/DOUBLE JEOPARDY (JUDGE PROHIBITED FROM ADDING PROBATION TO DEFENDANT’S SENTENCE OUTSIDE OF DEFENDANT’S PRESENCE, ONCE DEFENDANT WAS RELEASED FROM JAIL ANY ATTEMPT TO INCREASE HIS SENTENCE PRECLUDED BY DOUBLE JEOPARDY RULE)/SENTENCING (JUDGE PROHIBITED FROM ADDING PROBATION TO DEFENDANT’S SENTENCE OUTSIDE OF DEFENDANT’S PRESENCE, ONCE DEFENDANT WAS RELEASED FROM JAIL ANY ATTEMPT TO INCREASE HIS SENTENCE PRECLUDED BY DOUBLE JEOPARDY RULE)

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HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED.

The Fourth Department determined defendant was entitled to a hearing on his motion to vacate the judgment of conviction. There was hearsay evidence that a third party committed the murder and a hearing was necessary to determine the reliability of the hearsay. In addition, a hearing was required to determine whether defense counsel was ineffective in failing to investigate evidence that a third party committed the murder:

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Here, … information was received following defendant’s conviction that a third party had allegedly confessed to the murder, and there are questions of fact whether the statements of that third party would have been admissible at trial as declarations against penal interest … . Moreover, … “where, as here, the declarations exculpate the defendant, they are subject to a more lenient standard, and will be found sufficient if [the supportive evidence] establish[es] a reasonable possibility that the statement might be true . . . That is because [d]epriving a defendant of the opportunity to offer into evidence [at trial] another person’s admission to the crime with which he or she has been charged, even though that admission may . . . be offered [only] as a hearsay statement, may deny a defendant his or her fundamental right to present a defense” … . We thus conclude that the court should have conducted a hearing to determine, first, whether there is “competent evidence independent of the declaration to assure its trustworthiness and reliability” … and, second, whether the witness who heard the third party’s declaration is both available to testify and credible in his or her testimony … .

We further conclude that defendant is entitled to a hearing on his claims that defense counsel was ineffective for failing to investigate potentially exculpatory information. Before trial, a witness informed police that two identified individuals had told the witness that the third party had committed the murder. “A defendant’s right to effective assistance of counsel includes defense counsel’s reasonable investigation and preparation of defense witnesses . . . Consequently, the failure to investigate witnesses may amount to ineffective assistance of counsel” … . People v Davis, 2017 NY Slip Op 03375, 4th Dept 4-28-17

 

CRIMINAL LAW (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/VACATE CONVICTION, MOTION TO (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/ATTORNEYS (CRIMINAL LAW, (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/EVIDENCE (CRIMINAL LAW, HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/INEFFECTIVE ASSISTANCE (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/HEARSAY (CRIMINAL LAW, (HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)/THIRD PARTY CULPABILITY (CRIMINAL LAW, HEARING SHOULD HAVE BEEN HELD ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION, HEARSAY EVIDENCE A THIRD PARTY CONFESSED TO THE MURDER MUST BE ASSESSED AND WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INVESTIGATE THE THIRD PARTY CONFESSION MUST BE DETERMINED)

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DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE.

The Fourth Department, over a two justice dissent, affirmed defendant’s conviction and sentence. The dissenters argued the sentence for this adolescent offender was harsh and excessive. The defense attorney allowed in evidence without objection statements made by a codefendant which implicated defendant, in violation of the Bruton rule. In addition, defense counsel did not move for a severance. The Fourth Department determined the waiver of the Bruton objection and defense counsel’s decision not to move to sever defendant’s trial were strategic decisions and did not constitute ineffective assistance:

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While we agree with defendant that the admission of those statements violated Bruton and that Supreme Court’s curative instruction did not alleviate the prejudice … , we consider defense counsel’s strategic decisions to proceed with a joint trial and to consent to the admission of the codefendant’s statements to constitute a waiver of any Bruton violation … . Indeed, when the codefendant’s statements were offered in evidence, defense counsel specifically stated that he had “[n]o objection” to their admission in evidence. * * *

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It is well settled that “a reviewing court must avoid confusing true ineffectiveness with mere losing tactics’ ” … . Indeed, it “is not for [the] court to second-guess whether a course chosen by defendant’s counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation” … . “To prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations” for defense counsel’s allegedly deficient conduct … . Here, defense counsel specifically stated on the record that he made a decision for strategic reasons, and we conclude that defendant has not established that counsel’s strategy “was inconsistent with the actions of a reasonably competent attorney” … . People v Howie, 2017 NY Slip Op 03298, 4th Dept 4-28-17

CRIMINAL LAW (DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/EVIDENCE (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/BRUTON RULE (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE (DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)/SEVERANCE (CRIMINAL LAW, DEFENSE COUNSEL WAIVED BRUTON OBJECTION TO CODEFENDANT’S STATEMENT IMPLICATING DEFENDANT, WAIVER OF BRUTON OBJECTION AND STRATEGIC DECISION NOT TO SEVER DEFENDANT’S TRIAL DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE)

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SCHOOL DISTRICT’S TERMINATION OF A CERTAIN HEALTH INSURANCE OPTION FOR RETIREES WAS NOT QUASI-LEGISLATIVE, THEREFORE MAILING THE NOTIFICATION LETTER DID NOT TRIGGER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 CONTESTING THE ACTION.

The Fourth Department, reversing Supreme Court, over a concurrence and a two-justice dissent, determined the action by the respondent school district (re: terminating certain health insurance available to retirees) was not quasi-legislative. Therefore the four-month statute of limitations for petitioners’ Article 78 contesting the school district’s action did not start to run upon the mailing of the undated notification letter. The respondents, therefore, did not demonstrate the Article 78 proceeding was barred by the statute of limitations:

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A quasi-legislative-type administrative determination is one having an impact far beyond the immediate parties at the administrative stage… . Thus, where a quasi-legislative determination is challenged, “actual notice of the challenged determination is not required in order to start the statute of limitations clock” … . The policy underlying the rule is that actual notice to the general public is not practicable … . Instead, the statute of limitations begins to run once the administrative agency’s quasi-legislative determination of the issue becomes “readily ascertainable” to the complaining party… .

On the other hand, where the public at large is not impacted by a determination, actual notice, commonly in the form of receipt of a letter or other writing containing the final and binding determination, is required to commence the statute of limitations … . * * *

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… [I]nasmuch as respondents, in our view, failed to meet their burden to establish when the four-month statute of limitations commenced, the burden did not shift to petitioners to establish any particular date of individual receipt of the undated letter. In any event, respondents failed to establish any dates of receipt by petitioners in their moving papers. Matter of Knavel v West Seneca Cent. Sch. Dist., 2017 NY Slip Op 03416, 4th Dept 4-28-17

 

ADMINISTRATIVE LAW (SCHOOL DISTRICT’S TERMINATION OF A CERTAIN HEALTH INSURANCE OPTION FOR RETIREES WAS NOT QUASI-LEGISLATIVE, THEREFORE MAILING THE NOTIFICATION LETTER DID NOT TRIGGER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 CONTESTING THE ACTION)/QUASI-LEGISLATIVE ACTION (ADMINISTRATIVE LAW, SCHOOL DISTRICT’S TERMINATION OF A CERTAIN HEALTH INSURANCE OPTION FOR RETIREES WAS NOT QUASI-LEGISLATIVE, THEREFORE MAILING THE NOTIFICATION LETTER DID NOT TRIGGER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 CONTESTING THE ACTION)/CIVIL PROCEDURE (ARTICLE 78, STATUTE OF LIMITATIONS, SCHOOL DISTRICT’S TERMINATION OF A CERTAIN HEALTH INSURANCE OPTION FOR RETIREES WAS NOT QUASI-LEGISLATIVE, THEREFORE MAILING THE NOTIFICATION LETTER DID NOT TRIGGER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 CONTESTING THE ACTION)/ARTICLE 78 (STATUTE OF LIMITATIONS, (SCHOOL DISTRICT’S TERMINATION OF A CERTAIN HEALTH INSURANCE OPTION FOR RETIREES WAS NOT QUASI-LEGISLATIVE, THEREFORE MAILING THE NOTIFICATION LETTER DID NOT TRIGGER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 CONTESTING THE ACTION)/STATUTE OF LIMITATIONS (ARTICLE 78, SCHOOL DISTRICT’S TERMINATION OF A CERTAIN HEALTH INSURANCE OPTION FOR RETIREES WAS NOT QUASI-LEGISLATIVE, THEREFORE MAILING THE NOTIFICATION LETTER DID NOT TRIGGER THE FOUR-MONTH STATUTE OF LIMITATIONS FOR AN ARTICLE 78 CONTESTING THE ACTION)