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ABSENT A STIPULATION BY THE PARTIES, FAMILY COURT SHOULD NOT HAVE WITHDRAWN THE FAMILY OFFENSE PETITION (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the family offense petition should not have been withdrawn by the judge because the parties did not stipulate to the withdrawal:

Where, as here, the matter has been submitted to the court, “the court may not order an action discontinued except upon the stipulation of all parties appearing in the action” (CPLR 3217[b]). In this case, there was no stipulation from the parties. Thus, the court erred in directing that the petition was withdrawn … . Matter of Johnson v Lomax, 2023 NY Slip Op 01675, Second Dept 3-29-23

Practice Point: A judge cannot withdraw a family offense petition which has been submitted to the court without a stipulation by the parties.

 

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THE ARTICLE 78 PETITION SOUGHT RELIEF NOT AVAILABLE IN SUCH A PROCEEDING (REMOVAL OF A TERRACE CONSTRUCTED ABOVE PETITIONER’S RESIDENCE); THE APPELLATE COURT CONVERTED THE PETITION TO A COMPLAINT PURSUANT TO CPLR 103 (SECOND DEPT).

The Second Department determined the Article 78 petition seeking the removal of a terrace constructed above petitioner’s property sought relief not available pursuant to Article 78 but converted the petition to a complaint pursuant to CPLR 103[c]:

RPAPL 871(1) authorizes the owner of any legal estate in land to maintain an action for an injunction directing the removal of a structure encroaching on such land. “Even where the facts which would justify the grant of [such] an extraordinary remedy are established, the court must still decide whether, in the exercise of a sound discretion, it should grant the remedy, and if granted, the terms and conditions which should be annexed to it” … . Consequently, that branch of the petition which was to compel the respondents to remove the terrace did not seek the performance of a purely ministerial act which can be obtained in a CPLR article 78 proceeding … .

Pursuant to CPLR 103(c), however, a proceeding should not be dismissed “solely because it is not brought in the proper form,” and this Court has the power to convert a proceeding into the proper form … . Under the circumstances, we convert so much of the proceeding as sought to compel the respondents to remove the terrace into an action, deem that branch of the petition which was to compel the respondents to remove the terrace to be the complaint, and remit the matter to the Supreme Court, Queens County, for further proceedings on the complaint. Matter of Dicker v Glen Oaks Vil. Owners, Inc., 2023 NY Slip Op 01673, Second Dept 3-29-23

Practice Point: An Article 78 proceeding is not appropriate for relief beyond a ministerial act, here the removal of a terrace constructed above petitioner’s residence. Here the appellate court converted the petition to a complaint seeking that relief pursuant to CPLR 103.

 

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FAMILY COURT DID NOT ARTICULATE ITS REASONS FOR DETERMINING CHILD SUPPORT BASED ON PARENTAL INCOME IN EXCESS OF THE STATUTORY CAP; THE ORIGINAL SUPPORT LEVEL BASED ON THE STATUTORY CAP REINSTATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined father’s objections to the level of mother’s child support obligation should not have been granted. Family Court had more than doubled the support obligations based on the couple’s income level, which was above the statutory cap. But Family Court did not sufficiently articulate the reasoning underlying the discretionary increase:

The Child Support Standards Act “‘sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to a particular ceiling'” … . “Where . . . the combined parental income exceeds the statutory cap, in fixing the basic child support obligation on income over the cap, the court has the discretion to apply the factors set forth in Family Court Act § 413(1)(f), or to apply the statutory percentages, or to apply both” … . “However, the Family Court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap” … . “This articulation should reflect ‘a careful consideration of the stated basis for its exercise of discretion, the parties’ circumstances, and its reasoning why there [should or] should not be a departure from the prescribed percentage'” … .

Here, the Family Court did not set forth a sufficient basis for its determination to calculate child support based on combined parental income exceeding the statutory cap. Further, the record shows that based on certain factors, including the parties’ disparity in income and the child’s standard of living, the child support obligation should be calculated based only on combined parental income up to the statutory cap … . Matter of Butta v Realbuto, 2023 NY Slip Op 01671, Second Dept 3-29-23

Practice Point: The court must articulate its reasons for determining child support based upon parental income exceeding the statutory cap. Here the court’s failure to do so resulted in reinstating the child support level which was based on the statutory cap.

 

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THE JUDGE SHOULD NOT HAVE DECIDED MOTHER’S CUSTODY PETITION WITHOUT A BEST INTERESTS HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a hearing was required in this custody proceeding:

“Custody determinations . . . require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child” … . Accordingly, “custody determinations should ‘[g]enerally’ be made ‘only after a full and plenary hearing and inquiry'” … . “This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child” … . “[W]here . . . facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required” … .

Here, the Supreme Court erred in making a final custody determination without a hearing and without inquiring into the best interests of the parties’ child … . Matter of Bendter v Elikwu, 2023 NY Slip Op 01670, Second Dept 3-29-23

Practice Point: Factual issues raised in a custody proceeding should not be decided without a hearing.

 

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IN AN INQUEST ON DAMAGES AFTER DEFENDANT DEFAULTED, THE JUDGE SHOULD NOT HAVE CONSIDERED LIABILITY ISSUES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have considered issues of liability in the inquest on damages after defendant’s default:

After conducting the inquest, the court found … that the plaintiff had failed to proffer credible evidence that the accident occurred or that she had sustained an injury that was caused by the defendants, and directed the dismissal of the complaint. …

By defaulting, the defendants admitted “all traversable allegations in the complaint, including the basic allegation of liability” … . As such, the sole issue to be determined at the inquest was the extent of the damages sustained by the plaintiff, and the Supreme Court should not have considered issues of liability … . Youngja Lee v Hong Kong Supermarket, 2023 NY Slip Op 01668, Second Dept 3-29-23

Practice Point: A judge should not consider issues of liability in an inquest on damages after the defendant’s default.

 

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PRECLUSION OF EVIDENCE AS A DISCOVERY SANCTION WAS NOT WARRANTED; THERE WAS NO EVIDENCE OF WILLFUL OR CONTUMACIOUS CONDUCT AND THE SANCTIONED PARTY WAS NOT GIVEN AN OPPORTUNITY TO EXPLAIN THE FAILURE TO COMPLY WITH DISCOVERY ORDERS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the discover sanctions imposed by the judge on plaintiff were not warranted:

… Supreme Court improvidently exercised its discretion by imposing the drastic sanction of preclusion upon the plaintiff without affording the plaintiff adequate notice and an opportunity to be heard, including on facts relevant to whether the plaintiff’s noncompliance was willful and contumacious. The defendant did not move for sanctions pursuant to CPLR 3126 due to the plaintiff’s failure to comply with the interim order, nor did the court make its own motion or include language in the interim order warning that noncompliance would result in sanctions. The court also made its determination without oral argument, such that it is unclear what opportunity the plaintiff had to explain the circumstances of its noncompliance. …

… [E]ven if the plaintiff had been provided with adequate due process, the Supreme Court still would have improvidently exercised its discretion by, inter alia, precluding the plaintiff from serving further demands and from introducing certain documents. The record contains no showing of “a clear pattern of willfulness and contumacious conduct necessary to justify [such] sanctions” … . There is no indication that the plaintiff “repeated[ly] fail[ed] to comply with court-ordered discovery” or “fail[ed] to comply with court-ordered discovery over an extended period of time” … . Instead, this case involves a “single incident of noncompliance” with a court order, which was insufficient to warrant a sanction as drastic as preclusion … , especially given the policy of resolving cases on their merits and the fact that discovery was still ongoing at the time the court made its determination. Korsinsky & Klein, LLP v FHS Consultants, LLC, 2023 NY Slip Op 01667, Second Dept 3-29-23

Practice Point; Before precluding evidence as a discovery sanction, there must be a finding of willful and contumacious conduct and the the sanctioned party must be given a chance to explain the failure to comply with discovery orders.

 

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DNA EVIDENCE RECOVERED AFTER THE DEFENDANT WAS CONVICTED OF MURDER POINTED TO THE VICTIM’S BOYFRIEND AS THE PERPETRATOR; BECAUSE THE EVIDENCE AGAINST THE DEFENDANT WAS A SINGLE IDENTIFICATION WITNESS WHO WAS 88 YEARS OLD AND HAD POOR VISION, THE DNA EVIDENCE MAY HAVE LED TO A MORE FAVORABLE VERDICT; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, vacating defendant’s murder conviction and ordering a new trial, determined the DNA evidence (from under the victim’s fingernails) procured after the trial may have resulted in a verdict more favorable to the defendant. Defendant was identified as the perpetrator by an 88-year-old witness who had poor vision. The DNA recovered from the victim was that of the victim’s boyfriend. There was no other evidence tying defendant to the scene:

… [T]he defense theory at trial was one of mistaken identity. The defendant posited that the perpetrator was actually Samuels’s [the victim’s] boyfriend, Jermaine Robinson. No physical evidence linked the defendant to the crime. The only identity evidence offered by the People at trial was the testimony of a single eyewitness, Marchon, who was 88 years old at the time of the incident and suffered from significantly impaired vision. Marchon’s description to the police of the perpetrator’s appearance was not conclusive and was, in part, more consistent with Jermaine Robinson’s appearance. Under the facts of the case, it would not have been unreasonable to conclude that Marchon confused Samuels’s estranged husband with her current boyfriend in making her identification to the police. Marchon also was not able to conclusively identify the defendant at trial. Moreover, various members of the defendant’s family provided alibi evidence for his whereabouts on the day of the attack. Finally, two Allen charges … were required before the jury was able to reach a verdict.

Under all of these circumstances, while not a “virtual certainty,” there existed a reasonable probability that the verdict would have been more favorable to the defendant had the DNA evidence been admitted at trial … . People v Robinson, 2023 NY Slip Op 01533, Second Dept 3-22-23

Practice Point: Here in this murder case DNA evidence discovered after the trial pointed to a different perpetrator and the single eyewitness was 88 years old and had poor vision. Had the DNA evidence been admitted at trial the verdict may have been more favorable to defendant. New trial ordered.

 

BECAUSE THE OFFENSE TO WHICH DEFENDANT PLED GUILTY (ATTEMPTED CRIMINAL POSSESSION OF A WEAPON THIRD) WAS NOT A LESSER INCLUDED OFFENSE OF ANY OFFENSE CHARGED IN THE INDICTMENT, IT IS NOT CLASSIFIED AS A VIOLENT FELONY; DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND VIOLENT FELONY OFFENDER (SECOND DEPT). ​

The Second Department determined defendant should not have been sentenced as a second violent felony offender. Defendant pled guilty to attempted criminal possession of a weapon third, which was not a lesser included offense of any of the offenses charged in the indictment. Therefore the attempted criminal possession of a weapon third can not be classified as a violent felony:

Penal Law § 70.02 defines a class E violent felony offense, in pertinent part, as “an attempt to commit any of the felonies of criminal possession of a weapon in the third degree as defined in subdivision five, six, seven or eight of section 265.02 as a lesser included offense of that section as defined in section 220.20 of the criminal procedure law” … in turn defines a ‘lesser included offense’ as one where the defendant pleads ‘to an offense of lesser grade than one charged in a count of an indictment'” … . Thus, a plea of guilty to attempted criminal possession of a weapon in the third degree “constitutes a violent felony offense only when the defendant has been initially charged with criminal possession of a weapon in the third degree and pleads guilty to the attempted crime as a lesser included offense” … . Here, the defendant pleaded guilty to attempted criminal possession of a weapon in the third degree as an added count to the indictment, which did not charge him with the completed crime of criminal possession of a weapon in the third degree. Under the circumstances, the Supreme Court should not have sentenced the defendant as a violent felony offender … . People v Nyack, 2023 NY Slip Op 01532, Second Dept 3-22-23

Practice Point: Here defendant pled guilty to attempted criminal possession of a weapon third. Because that offense was not a lesser included offense of any offense charged in the indictment, it is not classified as a violent felony. Therefore defendant should not have been sentenced as a second violent felony offender.

 

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ALTHOUGH THE DEFENDANT WAS AWARE THE GUILTY PLEA MAY HAVE A NEGATIVE IMPACT ON HIS IMMIGRATION STATUS HE WAS NOT SPECIFICALLY INFORMED DEPORTATION WAS POSSIBLE; MATTER SENT BACK TO GIVE THE DEFENDANT THE OPPORTUNITY TO MOVE TO VACATE THE PLEA (SECOND DEPT). ​

The Second Department determined defendant was not informed of the possibility of deportation before entering the guilty plea, although defendant was aware the plea may have a negative impact on his immigration status.. The issue need not be preserved for appeal. The matter was sent back to afford defendant the opportunity to move to vacate the plea:

At the plea proceeding, the court questioned the defendant as to whether he had discussed with defense counsel “the possible negative impact on [his] immigration status as a result of [his] pleas of guilt.” The defendant replied: “Yes. I did explain to him that I was concerned about that.” The court then inquired whether the defendant had “an opportunity to discuss these pleas and their impact on [his] immigration status with an immigration attorney.” In response, the defendant indicated that he had discussed the matter with an immigration attorney, who had informed him of the “possibility” that he would lose “TPS [Temporary Protected Status].” The court did not advise the defendant of the possibility of deportation as a consequence of the guilty plea. People v Hernandez, 2023 NY Slip Op 01530, Second Dept 3-22-23

Practice Point: Here the negative impact of the guilty plea on defendant’s immigration status was discussed prior to his entering the plea, but the possibility of deportation was not specifically addressed. The defendant was given the opportunity to move to vacate the plea. Under the facts, preservation was not required.

 

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FAMILY COURT PROPERLY PROHIBITED FATHER FROM POSTING BLOGS DISPARAGING THE CHILD’S RELATIVES ON SOCIAL MEDIA, BUT THE RESTRICTIONS WERE TOO BROAD IN THAT THEY WENT BEYOND THE NEEDS OF THE CASE (SECOND DEPT).

The Second Department determined Family Court had properly prohibited father from posting blogs disparaging the child’s relatives on social media, but that the restrictions on future speech should have been more narrowly tailored to the needs of the case:

“A prior restraint on speech is a law, regulation or judicial order that suppresses speech on the basis of the speech’s content and in advance of its actual expression” … . A party seeking to impose such a restraint bears a “heavy burden of demonstrating justification for its imposition” … . Such party must demonstrate that the speech sought to be restrained is “‘likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest'” … . An order imposing a prior restraint on speech “must be tailored as precisely as possible to the exact needs of the case” … .

Here, that portion of the order which directed the father to erase, deactivate, and delete “any existing blogs and likenesses” was “not tailored as precisely as possible to the exact needs of the case” … . Specifically, this restriction required the father to delete “any existing blogs and likenesses,” regardless of whether the blogs or likenesses relate to the child, the mother, the mother’s family, or the instant proceedings…. . Matter of Walsh v Russell, 2023 NY Slip Op 01522, Second Dept 3-22-23

Practice Point: As long as the restrictions on future speech relate to the family court case the constitution is not violated. Here father could be prohibited from posting blogs disparaging the child’s relatives and likenesses of the child. The order to delete past posts was also proper. But the restrictions on future speech were too broad in that they went beyond the needs of the case.

 

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