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A FINE NOT INCLUDED IN THE PLEA AGREEMENT SHOULD NOT HAVE BEEN IMPOSED (SECOND DEPT).

The Second Department, vacating the fine imposed at sentencing, determined the sentencing judge should not have imposed a fine that was not part of the plea agreement:

County Court improperly enhanced the defendant’s sentence by imposing a fine that was not part of the negotiated plea agreement … . Under the circumstances of this case, we find it appropriate to vacate so much of his sentence as imposed a fine, so as to conform the sentence imposed to the promise made to the defendant in exchange for his plea of guilty … . People v Ruiz, 2022 NY Slip Op 06016, Second Dept 10-26-22

Practice Point: Here the imposition of a fine at sentencing which was not contemplated by the plea agreement was deemed an improper enhancement of the sentence.

 

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THE SENTENCING JUDGE IMPROPERLY SPECULATED AND CONSIDERED UNCHARGED CRIMES; SENTENCE VACATED (SECOND DEPT). ​

The Second Department, vacating defendant’s sentence, determined the sentencing judge improperly speculated and considered uncharged crimes:

… [C]ertain remarks made by the County Court demonstrate that, in imposing sentence, it improperly speculated and considered that the defendant had committed additional similar crimes for which she had not been apprehended. Consequently, the defendant must be resentenced … . People v Jeffriesel, 2022 NY Slip Op 06012, Second Dept 10-2622

Practice Point: Here the judge’s remarks at sentencing revealed improper speculation and consideration of uncharged crimes. The sentence was vacated and resentencing ordered.

 

THE DISORDERLY CONDUCT AND VIOLENT CONDUCT MISBEHAVIOR DETERMINATIONS WERE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (SECOND DEPT). ​

The Second Department, reversing (modifying) the superintendent’s determination, held that the disorderly conduct and violent conduct determinations were not supported by substantial evidence:

… [T]he determination that the petitioner was guilty of violating rule 100.15, which provides that an incarcerated individual shall not engage in unauthorized sparring, wrestling, body-punching, or other forms of disorderly conduct, was not supported by substantial evidence. The misbehavior report does not state that the petitioner engaged in any particular act of disorderly conduct set forth in the rule, or any other similar act that could be defined as disorderly conduct within the meaning of the rule, which contemplates some form of physical contact by an inmate with another individual. Nor does the misbehavior report constitute substantial evidence to establish that the petitioner was guilty of violating rule 104.11, prohibiting violent conduct. The report does not indicate that the petitioner committed any particular violent act, merely stating that “[f]orce became necessary,” without indicating what the petitioner did to necessitate the use of such force. Furthermore, there is no evidence outside the report to support the determination that the petitioner was guilty of disorderly conduct or violent conduct … . Matter of White v LaManna, 2022 NY Slip Op 06010, Second Dept 10-26-22

Practice Point: Here in these prison disciplinary proceedings there was no proof of violence on the part of the inmate. Therefore the disorderly conduct and violent conduct determinations were not supported by substantial evidence. The allegation that “force became necessary,” referring to the actions of the guards, was not enough.

 

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THE MOTION TO CONSOLIDATE THE TRIALS OF TWO ACTIONS STEMMING FROM THE SAME FIRE, WHERE ONE PARTY WAS BOTH A DEFENDANT AND A PLAINTIFF, SHOULD HAVE BEEN GRANTED; ANY PREJUDICE RESULTING FROM THE JURY’S KNOWLEDGE OF THE EXISTENCE OF INSURANCE (ONE OF THE ACTIONS IS AGAINST AN INSURER) CAN BE HANDLED WITH JURY INSTRUCTIONS (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the motion to consolidate the trials of two actions stemming from the same fire which damages two adjoining properties should have been granted. The court noted that one party is both a plaintiff and a defendant:

Although a motion pursuant to CPLR 602(a) is addressed to the sound discretion of the trial court … , consolidation or joinder for trial is favored to avoid unnecessary duplication of trials, save unnecessary costs and expense, and prevent an injustice which would result from divergent decisions based on the same facts … . “Where common questions of law or fact exist, a motion [pursuant to CPLR 602(a)] to consolidate [or for a joint trial] should be granted, absent a showing of prejudice to a substantial right by the party opposing the motion” … .

Here … the two actions involve common questions of law and fact. Assuming, arguendo, that the respondents would be prejudiced if the two actions are tried before the same jury since it would bring to the jury’s attention the existence of insurance … , any such prejudice is outweighed by the possibility of inconsistent verdicts if separate trials ensue … . Furthermore, the possibility of such prejudice can be mitigated by appropriate jury instructions … . Moreover, a joint trial, rather than consolidation, is appropriate where a party is both a plaintiff and a defendant … . Calle v 2118 Flatbush Ave. Realty, LLC, 2022 NY Slip Op 05981, Second Dept 10-26-22

Practice Point: Here the motion pursuant to CPLR 602 to consolidate the trials of two actions stemming from the same fire should have been granted. One party was both a defendant and a plaintiff. The fact that consolidation would bring the existence of insurance to the jury’s attention (one of the parties is an insurer), although prejudicial, can be handled by jury instructions.

 

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IN THIS FORECLOSURE ACTION, THE WRONG TYPEFACE IN THE RPAPL 1303 NOTICE REQUIRED DENIAL OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff in this foreclosure action did not demonstrate compliance with the typeface requirements for the RPAPL 1303 notice. Therefore plaintiff’s motion for summary judgment should have been denied:

RPAPL 1303 “requires the foreclosing party to deliver, along with the summons and complaint, a notice titled ‘Help for Homeowners in Foreclosure’ in residential foreclosure actions involving owner-occupied, one-to-four family dwellings. The statute mandates that the notice include specific language relating to the summons and complaint, sources of information and assistance, rights and obligations, and foreclosure rescue scams. It also mandates that the notice be in bold, 14-point type and printed on colored paper that is other than the color of the summons and complaint, and that the title of the notice be in bold, 20-point type” … . “Proper service of the notice required by RPAPL 1303 . . . is a condition precedent to the commencement of a foreclosure action, and it is the plaintiff’s burden to show compliance with that statute” … .

Here, the plaintiff failed to meet its prima facie burden since it is not apparent upon review of the copy of the RPAPL 1303 notice served upon the defendant that the correct typeface was utilized. In addition, the process server’s affidavit of service did not indicate that the notice served upon the defendant complied with all of the requirements of RPAPL 1303, including the proper typeface … . MTGLQ Invs., L.P. v Assim, 2022 NY Slip Op 06000, Second Dept 10-26-22

Practice Point: In a foreclosure action, the plaintiff must strictly comply with the notice requirements in RPAPL 1303, including the size of the typeface. The use of the wrong typeface precludes the commencement of the action.

 

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PLAINTIFF BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE THE FIVE HOUSING COUNSELING AGENCIES LISTED IN THE RPAPL 1304 WERE DESIGNATED BY THE NYS DIVISION OF HOUSING AND COMMUNITY RENEWAL (DHCR) AND THEREFORE DID NOT DEMONSTRATE STRICT COMPLIANCE WITH RPAPL 1304 (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the five housing counseling agencies listed on the 90-day notice were designated by the NYS Division of Housing and Community Renewal (DHCR) at the time the notice was sent:

“It is the plaintiff’s burden, on its motion for summary judgment, to demonstrate its strict compliance with the applicable provisions of RPAPL 1304” … . As relevant here, RPAPL 1304(2) … required that the 90-day notice sent to the borrower “contain a list of at least five housing counseling agencies as designated by the division of housing and community renewal, that serve the region where the borrower resides,” and that the lists of designated agencies published on the websites of the New York State Department of Financial Services (hereinafter DFS) and the DHCR be used by the lender, assignee, or mortgage loan servicer to meet these requirements … .

… [P]laintiff failed to establish … its strict compliance with RPAPL 1304(2), as it failed to demonstrate that the five entities listed on the 90-day notices sent to the defendant were designated by the DHCR as of when the notices were sent … . Bank of N.Y. Mellon v Maldonado, 2022 NY Slip Op 05974, Second Dept 10-26-22

Practice Point: If the bank in a foreclosure action does not demonstrate strict compliance with the notice requirements in RPAPL 1304 it is not entitled to summary judgment. At time of this action, RPAPL 1304 required that five housing counseling agencies be listed in the RPAPL 1304 notice and that the agencies be designated by the Division of Housing and Community Renewal (DHCR). Here the bank didn’t demonstrate the five agencies were so designated so its motion for summary judgment shouldn’t have been granted.

 

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THE BUSINESS RECORDS UPON WHICH THE CALCULATIONS IN THE REFEREE’S REPORT WERE BASED WERE NOT SUBMITTED; THE REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because the business records upon which the referee’s calculations were based were not submitted:

Supreme Court erred in granting the plaintiff’s motion to confirm the referee’s report and for a judgment of foreclosure and sale. “The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” … . However, computations based on the “review of unidentified and unproduced business records . . . constitute[ ] inadmissible hearsay and lack[ ] probative value” … . Although the plaintiff contends that the referee’s report was supported by the affidavit of an employee of its loan servicer, the plaintiff did not submit the business records upon which that employee purportedly relied in computing the total amount due on the mortgage. Consequently, the referee’s findings in that regard were not substantially supported by the record … . Bank of N.Y. Mellon v Conforti, 2022 NY Slip Op 05973, Second Dept 10-26-22

Practice Point: Here the calculations in the referee’s report were based upon business records which were not submitted. Therefore the report was not supported by the record and should not have been confirmed.

 

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IN THIS BREACH OF CONTRACT SUIT CONCERNING SHARING ATTORNEY’S FEES, THE COMPLAINT DID NOT ALLEGE SUFFICIENT FACTS TO STATE A CAUSE OF ACTION AGAINST AN INDIVIDUAL ATTORNEY, AS OPPOSED TO THE ATTORNEY’S FIRM (SECOND DEPT). ​

The Second Department, in this breach of contract action, determined the complaint did not allege sufficient facts to state a cause of action against an attorney (Lefft) as an individual, as opposed to against the attorney’s law firm:

“As a general rule, the law treats corporations as having an existence separate and distinct from that of their shareholders and, consequently, will not impose liability upon shareholders for the acts of the corporation” ( … Business Corporation Law § 1505). “In order for a plaintiff to state a viable claim against a shareholder of a corporation in his or her individual capacity for actions purportedly taken on behalf of the corporation, [the] plaintiff must allege facts that, if proved, indicate that the shareholder exercised complete domination and control over the corporation and ‘abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice'” … .

Here, while the complaint alleged that Leftt had authority to make decisions on behalf of the firm, and that Leftt “ratified” both that the plaintiffs held an “of counsel” position with the firm, as well as the compensation arrangement … , the complaint does not allege that Leftt exercised “complete dominion and control over” the firm, or otherwise “abused the privilege of doing business in the corporate form” that would form the basis for personal liability … . Hymowitz v Hoang Q. Nguyen, 2022 NY Slip Op 05997, Second Dept 10-26-22

Practice Point: To assert that a shareholder is personally liable for the conduct of the corporation (here a law firm), the complaint must allege the shareholder exercised complete dominion and control over the corporation.

 

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PLAINTIFF, IN THIS CHILD VICTIMS ACT SUIT, ALLEGED HE WAS ABUSED BY AN EMPLOYEE OF FAMILY SERVICES OF WESTCHESTER (FSW) AND BROUGHT CAUSES OF ACTION FOR NEGLIGENT HIRING AND NEGLIGENT SUPERVISION AGAINST FSW; THOSE CAUSES OF ACTION WERE DISMISSED FOR FAILURE TO SUFFICIENTLY ALLEGE FSW WAS AWARE OF THE EMPLOYEE’S PROPENSITY TO COMMIT THE WRONGFUL ACTS ALLEGED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s negligence hiring and negligent supervision causes of action against Family Services of Westchester (FSW) should have been dismissed. Plaintiff, in this Child Victims Act suit, alleged he was abused by a youth mentor employed by FSW when he was 10 – 12 years old:

To sustain a cause of action sounding in negligent supervision of a child under the alleged facts of this case, the plaintiff must establish that the defendant “had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . Similarly, “‘[t]o establish a cause of action based on negligent hiring, negligent retention, or negligent supervision [of an employee], it must be shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury'” … .

Here, the complaint failed to state a cause of action to recover damages for negligent supervision of the plaintiff, since it failed to sufficiently allege that the third party acts were foreseeable … . Similarly, the complaint failed to state causes of action to recover damages for negligent hiring and negligent training and supervision related to the plaintiff’s alleged youth mentor, since it failed to sufficiently allege that FSW knew, or should have known, of a propensity on the part of the youth mentor to commit the alleged wrongful acts … .  Fuller v Family Servs. of Westchester, Inc., 2022 NY Slip Op 05992, Second Dept 10-26-22

Practice Point: Here in this Child Victims Act suit alleging abuse by an employee of Family Services of Westchester (FSW), the complaint did not state causes of action against FSW for negligent hiring or negligent supervision because the complaint did not sufficiently allege FSW was aware of the employee’s propensity for the wrongful conduct alleged.

 

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IN THIS CHILD VICTIMS ACT SUIT ALLEGING ABUSE BY AN EMPLOYEE OF A GROUP FOSTER HOME, THE JUDGE SHOULD HAVE HELD A DISCOVERABILITY HEARING BEFORE DETERMINING WHICH FOSTER-CARE RECORDS WERE DISCOVERABLE (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the judge should have held a discoverability hearing before which foster-care records could be released to the plaintiff. Plaintiff alleged he was abused in 1991 and 1992 by an employee of a group foster home (Little Flower):

Social Services Law § 372(3) requires “authorized agenc[ies],” including Little Flower, to “generate and keep records of those [children] who are placed in [their] care” … . Foster care records are deemed confidential (see Social Services Law § 372[3]), “considering that they must contain individualized and often highly personal information about the [children]” … . The confidential nature of such records serves “[t]o safeguard both the child and [his or her] natural parents” … , as well as others who may be “the subjects of such records” … . Although foster care records are entitled to a presumption of confidentiality, they may nonetheless be deemed discoverable pursuant to the provisions of CPLR article 31 … . Moreover, since “[the] statutory confidentiality requirement is intended [in part] to protect the privacy of children in foster care,” it should not be used “to prevent former foster children from obtaining access to their own records” … , although this does not mean that they are always entitled to unfettered disclosure thereof. Even when considering a request for disclosure from a former foster child, “[a]n agency [may] move for a protective order where some part of the record should not be produced” … . * * *

Supreme Court improvidently exercised its discretion when it declined to conduct a discoverability hearing before deciding that branch of Little Flower’s motion which sought a protective order regarding the purportedly confidential portions of the records. We therefore remit the matter to the Supreme Court, Nassau County, to conduct such a hearing and to “clearly specify the grounds for its denial or approval of disclosure with respect to each document or category of documents” … .  Cowan v Nassau County Dept. of Social Servs., 2022 NY Slip Op 05989, Second Dept 10-26-22

Practice Point: Here, in this Child Victims Act suit, the judge should have held a discoverability hearing before deciding which foster-care records could be released to plaintiff. Plaintiff alleged he was abused in 1991 and 1992 by an employee of a group foster home.

 

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