You are here: / Fourth Department

Tag Archive for: Fourth Department

,

Trial Judge Should Have Allowed Slightly Late Peremptory Challenge—Conviction Reversed

The Fourth Department reversed defendant’s conviction based on the trial court’s refusal to allow the defense a peremptory challenge.  Defense counsel had mistakenly crossed out the juror’s name and quickly let the court know about the mistake:

After several prospective jurors had been excused for cause, the court directed the attorneys to exercise their peremptory challenges to the first group of prospective jurors in the panel.  The prosecutor exercised several challenges, followed by defense counsel.  As the court began to indicate the number of challenges that remained for each side, defense counsel immediately asked if he could exercise a peremptory challenge to the prospective juror in question on appeal.  When the court said no, defense counsel indicated that he had “crossed [the prospective juror’s name] out by mistake.”  The court reiterated that it would not permit the challenge, indicating that it had warned the attorneys about adhering to the court’s procedures.

“Under these circumstances, ‘we can detect no discernable interference or undue delay caused by [defense counsel’s] momentary oversight . . . that would justify [the court’s] hasty refusal to entertain [his] challenge,’ ” and we thus conclude that the court’s refusal to permit the challenge was an abuse of discretion … .  Inasmuch as “the right to exercise a peremptory challenge against a specific prospective juror is a ‘substantial right’ . . . , reversal is mandated” … . People v Rosario-Boria, 1007, 4th Dept 10-4-13

 

,

Failure to Make Motion for Trial Order of Dismissal Not Ineffective Assistance

In affirming defendant’s conviction, the Fourth Department determined defense counsel’s failure to make a motion for a trial order of dismissal did not amount to ineffective assistance of counsel:

…“[D]efense counsel’s failure to make a specific motion for a trial order of dismissal at the close of the People’s case [does] not constitute ineffective assistance of counsel, inasmuch as any such motion would have had no chance of success” … .  Indeed, we note that defendant does not contend on appeal that the evidence at trial is legally insufficient to support the conviction.  People v Hicks, 1008, 4th Dept 10-4-13

 

,

Failure to Serve Claim by Certified Mail Deprived Court of Claims of Subject Matter Jurisdiction

The Fourth Department affirmed the Court of Claims’ dismissal of an action for failure to comply with the statutory service-of-claim-by-certified-mail requirement.  The court noted that the court never gained subject matter jurisdiction and, therefore, the CPLR 3211 (e) waiver provision, which addressed personal, not subject matter, jurisdiction, did not apply:

…[C]laimants served their claim on the Attorney General by regular mail instead of by certified mail, return receipt requested, as required by Court of Claims Act § 11. Defendant’s answer raised the defense that the court lacked, inter alia, subject matter jurisdiction based on claimants’ improper service, and defendant later moved to dismiss the claim on that ground.  Claimants opposed the motion and cross-moved for an order deeming the service corrected or disregarded pursuant to CPLR 2001. The court granted defendant’s motion and denied claimants’ cross motion, and we now affirm.

Court of Claims Act § 11 (a) (i) provides that a party seeking to file a claim against the State of New York must serve a copy of the claim upon the Attorney General by certified mail, return receipt requested.  It is well settled that “nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary” … .  Inasmuch as the claim herein was served by regular mail, the court was deprived of subject matter jurisdiction and thus properly dismissed the claim … . Contrary to claimants’ contention, defendant’s motion to dismiss on the ground of improper service, made approximately 20 months after service of its answer, was not precluded by the 60-day waiver provision of CPLR 3211 (e).  The failure to comply with the service requirements in the Court of Claims Act “result[s] not in a failure of personal jurisdiction, . . . but in a failure of subject matter jurisdiction[,] which may not be waived”… . Zoeckler…, v State of New York, 883, 4th Dept 9-27-13

 

Timeliness Requirements for Motion for Summary Judgment Explained

In affirming the trial court’s determination defendants’ motion for summary judgment was untimely, the Fourth Department explained the applicable law:

“Where . . . a court does not set a date by which summary judgment motions must be made pursuant to CPLR 3212 (a), such a motion must be made no later than 120 days after the filing of the note of issue ‘except with leave of court on good cause shown’ ” … .  Good cause in the context of CPLR 3212 (a) “requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy”… .  O’Brien v Bainbridge…, 990, 4th Dept 9-27-13

 

Failure to Serve Complaint Upon Demand Required Dismissal of the Action

The Fourth Department determined defendant’s motion to dismiss the action based upon plaintiff’s failure to serve a complaint after a demand should have been granted:

“To avoid dismissal for failure to timely serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012 (b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a meritorious cause of action” … . Here, plaintiff failed to meet her burden with respect to either prong of that test.  Concerning the first part of the test, plaintiff asserted that she delayed in filing the complaint because she did not receive defendant’s demand for the complaint.  In our view, that excuse is not reasonable… .  Service of the demand for the complaint was complete upon – mailing (see CPLR 2103 [b] [2]), and defendant’s submission in support of its motion of a proper affidavit of service of the demand entitled it to the presumption that a proper mailing occurred … .  We agree with defendant that plaintiff’s mere denial of receipt of the demand was insufficient to rebut that presumption … .  Even assuming, arguendo, that nonreceipt of the demand was a reasonable excuse, we conclude that plaintiff failed to establish a meritorious cause of action with a verified complaint or an affidavit of merit, and thus dismissal of the action is required… . Dunlop v Saint Leo the Great, RC Church, 865, 4th Dept 9-27-13

 

Proof Requirements Re: Whether An Account Is Entirely Marital Property Explained

The Fourth Department explained the proof requirements where the defendant claimed the entire amount in a deferred compensation account should not have been deemed marital property:

According to defendant, the court improperly presumed that all of the funds in that account accumulated during the marriage, and he therefore contends that we should remit the matter to Supreme Court to determine the “marital share” of that account as distinguished from his “separate property share.”  There is no merit to that contention. Pursuant to a statutory presumption, “all property, unless clearly separate, is deemed marital property,” and the burden rests with the titled spouse to rebut that presumption … . Domestic Relations Law § 236 [B] [1] [c]; [d]).  “The party seeking to rebut that presumption must adequately trace the source of the funds” …; otherwise, the court may properly treat the funds as marital property … .  Here, it does not appear from the record that defendant offered any evidence establishing the amounts he contributed to his deferred compensation account before or during the marriage. Thus, he failed to meet his burden of establishing that any of the funds in that account are separate property, and we therefore conclude that the court properly presumed that the entire account constitutes marital property subject to equitable distribution. Zufall v Zufall, 887, 4th Dept 9-27-13

 

Doctrine of Equitable Estoppel Does Not Apply When Biological Mother Opposes Paternity Petition

In affirming Family Court’s dismissal of a paternity petition, the Fourth Department explained that the doctrine of equitable estoppel, urged to bar the mother from denying petitioner is the father of the child, did not apply:

“[T]he Court of Appeals has recently reiterated that a nonbiological, nonadoptive parent does not have standing to seek visitation when a biological parent who is fit opposes it, and that equitable estoppel does not apply in such situations even where the nonparent has enjoyed a close relationship with the child and exercised some control over the child with the parent’s consent” … .  It is well settled “that parentage under New York law derives from biology or adoption” …, and that “Alison D., in conjunction with second-parent adoption, creates a bright-line rule that promotes certainty in [custody situations] otherwise fraught with the risk of ‘disruptive . . . battles’ . . . over parentage as a prelude to further potential combat over custody and visitation” … .  As the Court of Appeals has stated, “any change in the meaning of ‘parent’ under our law should come by way of legislative enactment rather than judicial revamping of precedent” … .  Matter of White v Wilcox, 903, 4th Dept 9-27-13

 

,

Cognizable Counterclaim for Breach of Domestic Partnership Stated

In finding defendant had stated a legally cognizable counterclaim for breach of a domestic partnership agreement, the Fourth Department explained:

With respect to domestic partnership agreements, “New York courts have long accepted the concept that an express agreement between unmarried persons living together is as enforceable as though they were not living together . . . , provided only that illicit sexual relations were not ‘part of the consideration of the contract’ ” … .  Additionally, there is no statutory requirement that such a contract be in writing … .  We conclude that here defendant sufficiently pleaded counterclaims for breach of a domestic partnership agreement and that the court therefore erred in dismissing the fourth and fifth counterclaims … . Ramos v Hughes, 866, 4th Dept 9-27-13

 

Neglect Finding Based on Children’s Exposure to Bloody Domestic Violence Affirmed’ Requirements for Admission of Police Reports Explained

In affirming Family Court’s finding of neglect based upon the children’s exposure to bloody violence involving the mother and her boyfriend, the Fourth Department noted that police reports should not have been admitted in evidence because they were not properly certified:

The mother correctly contends that Family Court erred in admitting police records in evidence inasmuch as the certification attached to those records failed to comply with Family Court Act § 1046 (a) (iv).  That statute provides that where, as here, a certification is completed by a “responsible employee” rather than the head of an agency, the certification “shall be accompanied by a photocopy of a delegation of authority signed by both the head of the . . . agency and by such other employee” (emphasis added).  The language of the statute is mandatory, and it is undisputed that “the requisite delegation of authority to [the employee] was lacking” … .  We must therefore “find the admission of these records to have been in error if we are to give effect to the clear and unambiguous intention of the [l]egislature”… . Matter of Kadyn J…, 929, 4th Dept 9-27-13

 

, , , ,

Fraud and Breach of Fiduciary Causes of Action Dismissed as Duplicative

The Fourth Department dismissed as duplicative causes of action sounding in fraud and breach of fiduciary duty in complaints against dentists also alleging malpractice, negligence, breach of General Business Law section 349 and 350, and failure to obtain informed consent, all based on dental treatment provided to children:

We agree with defendants that the court erred in denying those parts of their respective motions seeking dismissal of the fraud and breach of fiduciary duty causes of action, and we therefore modify the order by dismissing the first and third causes of action of the amended complaints against defendants.  “Dismissal of a fraud cause of action is required ‘[w]here [it] gives rise to damages which are not separate and distinct from those flowing from an alleged [dental] malpractice cause of action’ ” … .  Inasmuch as the damages sought by plaintiffs, including punitive damages, are the same for the fraud and dental malpractice causes of action, we conclude that the fraud cause of action must be dismissed.  We further conclude that the breach of fiduciary duty cause of action must be dismissed because it is duplicative of the malpractice cause of action … .  Both the breach of fiduciary duty cause of action and dental malpractice cause of action are based on the same facts and seek identical relief… . Matter of Small Smiles Litigation … v Forba Holdings LLC…, 996, 4th Dept 9-27-13

 

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