Second Department – Page 134 – New York Appellate Digest

THERE WERE DISPUTED FACTS CONCERNING WHETHER DEFENDANT BREACHED THE COOPERATION AGREEMENT; THE JUDGE SHOULD HAVE HELD A HEARING TO RESOLVE THE DISPUTED FACTS; DEFENDANT’S CONVICTION BY GUILTY PLEA REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction by guilty plea, determined the judge should not have determined defendant breached the cooperation agreement without a hearing. The prosecutor argued defendant breached the agreement by not providing information which defendant didn’t reveal until he was about to testify against a codefendant in accordance with the agreement. The defendant argued the information did not relate to the codefendant and he did not believe it was relevant at the time the cooperation agreement was created:

“[S]entencing is a critical stage of the criminal proceeding and . . . ‘the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause'” … . Generally, “a guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” … , but, where no promises are breached by the People and a defendant fails to abide by the terms of a cooperation agreement, a court is not obligated to permit a defendant to withdraw his plea … . Under the circumstances present here, these important issues have not been adequately resolved because the Supreme Court failed to hold a hearing or conduct a sufficient inquiry into whether the defendant violated the terms of the cooperation agreement … . …

This record reflects that the parties are sharply at odds as to whether there was a material breach of the cooperation agreement when the defendant provided additional information in response to new evidence shown to him during the codefendant’s trial … . The determination of this issue rests on nuanced considerations, including the defendant’s intent and the prosecutors’ interactions with the defendant while preparing for the codefendant’s trial. A hearing would have provided, among other things, an opportunity for the defendant to testify about the nature of the belatedly disclosed information, his reasons therefor, and his understanding of its importance to the case against the codefendant. People v Owensford, 2022 NY Slip Op 05716, Second Dept 10-12-22

Practice Point: Here there were nuanced disputed facts concerning whether defendant breached the cooperation agreement. The judge should have held a hearing to resolve the disputed facts. Conviction reversed and matter remitted.

October 12, 2022

Evidence, Family Law

THE EVIDENCE DID NOT SUPPORT THE FINDING MOTHER NEGLECTED HER TWO-MONTH OLD CHILD BY EXPOSING THE CHILD TO DOMESTIC VIOLENCE; THAT THE CHILD MAY HAVE HEARD LOUD ARGUING BEFORE GRANDMOTHER TOOK THE CHILD TO HER APARTMENT WAS NOT ENOUGH (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence did not support finding mother abused her two-month old child. The child, who was removed from the scene by the grandmother before the acts of domestic violence took place:

“‘[A] finding of neglect is proper where a preponderance of the evidence establishes that the child’s physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the parent’s commission of an act, or acts, of domestic violence in the child’s presence'” … . “However, ‘exposing a child to domestic violence is not presumptively neglectful,'” and “‘[n]ot every child exposed to domestic violence is at risk of impairment'” . “The Legislature’s requirement of actual or imminent danger of impairment prevents st… ate intrusion into private family life in the absence of ‘serious harm or potential harm to the child, not just . . . what might be deemed undesirable parental behavior'” … .

While testimony was elicited from the paternal grandmother that the subject child, then under two months old, was somewhere in an apartment with the mother and the father while they yelled at each other, the grandmother testified that she removed the child from that apartment prior to any acts of domestic violence. The evidence that the mother and the father engaged in a loud verbal argument in the presence of their infant child was insufficient to establish that the child’s physical, mental, or emotional condition was impaired or in imminent danger of becoming impaired … . Matter of Kingston T. (Diamond T.), 2022 NY Slip Op 05694, Second Dept 10-12-22

Practice Point: Mother’s two-month-old child may have heard loud arguing before grandmother removed the child from the scene. The evidence did not support a finding mother neglected the child by exposing the child to domestic violence.

October 12, 2022

Evidence, Family Law

ALTHOUGH FATHER DEMONSTRATED HIS FAILURE TO PAY CHILD SUPPORT WAS NOT WILLFUL, FAMILY COURT SHOULD HAVE ENTERED A MONEY JUDGMENT BASED ON HIS FAILURE TO OBEY THE LAWFUL ORDER OF CHILD SUPPORT (SECOND DEPT).

The Second Department, modifying Family Court, determined that although father demonstrated his failure to pay child support was not willful, a money judgment for father’s failure to obey a lawful order of child support should have been entered:

“Proof of failure to pay child support as ordered constitutes prima facie evidence of willful violation of an order of support” … . Here, the mother presented evidence at the hearing of the father’s failure to pay child support as ordered. Specifically, the mother presented evidence that the father had made only one child support payment during the relevant period, and that he owed basic child support in the sum of $19,591.43. Therefore, the mother met her prima facie burden … .

The burden then shifted to the father to offer some competent, credible evidence that his failure to pay child support in accordance with the order was not willful … . The father testified, and presented proof, that he intended to pay, but his employer and/or the Support Collection Unit had not properly followed through with the wage garnishment procedure. The Support Magistrate found the father’s testimony credible. “Great deference should be given to the credibility determinations of the Support Magistrate, who is in the best position to assess the credibility of the witnesses” … .. Under the circumstances of this case, the father’s showing was sufficient to establish that his failure to pay was not willful.

Nevertheless, as there was competent proof at the hearing that the father failed to obey a lawful order of child support (see Family Ct Act § 454[1]), a money judgment should be entered in favor of the mother for the amount of child support arrears that accrued during the relevant period … . Matter of Santman v Schonfeldt, 2022 NY Slip Op 05693, Second Dept 10-12-22

Practice Point: Here father demonstrated his failure to pay child support was not willful. But the court still should have entered a money judgment against father based upon his failure to obey a lawful order of child support.

October 12, 2022

Evidence, Family Law

THE EVIDENCE SUPPORTED THE FINDING OF A SINGLE INSTANCE OF NEGLECT OF FATHER’S 14-YEAR-OLD DAUGHTER; BUT THAT EVIDENCE DID NOT SUPPORT A FINDING OF DERIVATIVE NEGLECT RE: FATHER’S YOUNGER DAUGHTER (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined the evidence supporting the finding that father abused his 14-year-old daughter, Heymi M., on one occasion on a camping trip, but that evidence did not support the finding of derivative neglect re: the younger child, Katherine L.:

… [T]here was a nine-year age difference between Heymi M., the child found to have been abused, and the other child, Katherine L. Moreover, the evidence adduced at the hearing shows that the children had different mothers, different living situations, and markedly different relationships with the father. Among other things, the younger child, Katherine L., lived with the father for her entire life but the older child, Heymi M., only started having contact with the father approximately one year before the incident of abuse. Additionally, the record reflects that the abuse occurred on one occasion outside the home, Katherine L. was not in the room when it occurred, and there is no evidence that Katherine L. was aware of the abuse…. . Matter of Katherine L. (Adrian L.), 2022 NY Slip Op 05691, Second Dept 10-12-22

Practice Point: The finding that father abused his 14-year-old daughter on one occasion on a camping trip did not support the finding of derivative neglect re: father’s younger daughter.

October 12, 2022

Evidence, Negligence

DEFENDANT’S GENERAL AWARENESS THAT PUDDLES FORMED IN THE AREA OF PLAINTIFF’S SLIP AND FALL AND THAT WATER TURNS TO ICE WAS NOT ENOUGH TO DEMONSTRATE DEFENDANT HAD CONSTRUCTIVE NOTICE OF THE ICY CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate defendant had constructive notice of the icy condition where she slipped and fell. The fact that defendant may have been aware that puddles of water formed in that area was not enough:

The plaintiff’s submissions demonstrated that the defendant had a general awareness that puddles of water formed on the portion of the sidewalk or pathway where the plaintiff fell. However, the defendant’s general awareness that puddles of water formed in the precise location of the plaintiff’s fall is not sufficient to impute actual or constructive notice of the specific ice condition that caused her to fall … . The plaintiff submitted no evidence to show that the defendant was aware that ice formed in the area of the puddled water where the plaintiff fell … . General awareness that water can turn to ice is legally insufficient to constitute constructive notice of the particular ice condition that caused the plaintiff to fall … . The plaintiff’s submissions also failed to establish, prima facie, that the ice condition was otherwise visible and apparent, and had formed a sufficient period of time before the accident for the defendant to have discovered and remedied the condition … . McDonnell v Our Lady of Mercy R.C. Church, 2022 NY Slip Op 05686, Second Dept 10-12-22

Practice Point: Defendant’s general awareness that puddles form in the area where plaintiff slipped and fell and that water turns to ice did not demonstrate defendant had constructive notice of the icy condition.

October 12, 2022

Civil Procedure

IF THE NOTE OF ISSUE HAS BEEN VACATED, THE CPLR 3404 REQUIREMENTS FOR RESTORING THE ACTION TO THE CALENDAR DO NOT APPLY; THERFORE THE MOTION TO RESTORE NEED NOT BE MADE WITHIN A YEAR AND NEED NOT DEMONSTRATE A MERITIORIOUS CAUSE OF ACTION, REASONABLE EXCUSE, NO INTENT TO ABANDON, AND LACK OF PREJUDICE TO DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to restore the action to the active calendar should have been granted. Although the action had been stricken from the trial calendar more than a year before, the requirements of CPLR 3404 (demonstration of a meritorious cause of action, reasonable excuse, no intent to abandon and lack of prejudice to defendant) did not apply because the note of issue had been vacated:

Supreme Court erred in denying the plaintiff’s renewed motion to restore the action to the active calendar. While a party moving to restore an action more than one year after it was stricken from the trial calendar pursuant to CPLR 3404 must demonstrate a meritorious cause of action, a reasonable excuse for the delay in prosecuting the action, a lack of intent to abandon the action, and a lack of prejudice to the defendant … , CPLR 3404 did not apply here because the case reverted to its pre-note of issue status once the note of issue was vacated … . “[S]ince this action could not properly be marked off pursuant to CPLR 3404, the plaintiff was not obligated to move to restore within any specified time frame,” or to establish his entitlement to restoration of the action under the standard applicable to automatic dismissals pursuant to CPLR 3404 … . Thus, in the absence of a 90-day demand pursuant to CPLR 3216, the plaintiff’s renewed motion should have been granted … . Insuasti v La Boom Disco, Inc., 2022 NY Slip Op 05684, Second Dept 10-12-22

Practice Point: Once an action has been stricken from the trial calendar, CPLR 3404 requires that a motion to restore be made within a year and demonstrate a meritorious cause of action, reasonable excuse, no intent to abandon, and lack of prejudice to defendant. However, CPLR 3404 does not apply where, as here, the note of issue has been vacated and no 90-day demand pursuant to CPLR 3216 has been made.

October 12, 2022

Civil Procedure, Foreclosure, Judges

THE JUDGE SHOULD HAVE GRANTED DEFENDANTS’ ATTORNEY’S REQUEST FOR AN INTERPRETER; A NEW HEARING TO DETERMINE THE VALIDITY OF SERVICE OF PROCESS IN THIS FORECLOSURE ACTION WAS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ attorney’s request for an interpreter should have been granted. Defendant Rowshan claimed she was never served in this foreclosure action and she testified at the hearing on the validity of the service of process:

Pursuant to 22 NYCRR 217.1(a), “[i]n all civil . . . cases, when a court determines that a party . . . is unable to understand and communicate in English to the extent that he or she cannot meaningfully participate in the court proceedings, the clerk of the court or another designated administrative officer shall schedule an interpreter . . . from an approved list maintained by the Office of Court Administration.” “‘The determination whether a court-appointed interpreter is necessary lies within the sound discretion of the trial court, which is in the best position to make the fact-intensive inquiries necessary to determine whether there exists a language barrier'” so as to require an interpreter … .

Here, the record reflects that Rowshan was unable to meaningfully participate in the hearing due to her limited capacity to understand and communicate in English … . In multiple instances throughout her testimony, Rowshan’s testimony was not responsive to the questions posed to her, Rowshan did not know the meaning of simple words, and she made confusing statements demonstrating her limitations in understanding English. * * *

Since the Supreme Court determined, after the hearing, that Rowshan’s testimony was lacking in credibility due to “contradictions, misstatements and inconsistencies,” the record reflects that the denial of the defendants’ application for an interpreter may have influenced the court’s determination. HSBC Bank USA, N.A. v Parvez, 2022 NY Slip Op 05683, Second Dept 10-12-22

Practice Point: Here the judge’s failure to grant defendants’ attorney’s request for an interpreter required reversal and a new hearing. The defendant’s testimony revealed her limited understanding of English and the court’s ruling was based upon a determination of her credibility.

October 12, 2022

Civil Procedure, Foreclosure

AN ORDER DISMISSING AN ACTION DOES NOT CONCLUDE THE ACTION WHICH CAN ONLY BE ACCOMPLISHED BY FINAL JUDGMENT ENTERED BY THE CLERK; HERE, ALTHOUGH THE ACTION HAD BEEN DISMISSED BY AN ORDER, ABSENT A JUDGMENT THE ACTION REMAINED VIABLE AND THE COURT SHOULD HAVE CONSIDERED PLAINTIFF’S POST-DISMISSAL MOTION ON THE MERITS (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Dillon, determined: (1) an order dismissing an action does not terminate the action which can only be accomplished by a judgment; and (2) here, although the action had been dismissed, the action was still viable in the absence of a judgment and plaintiff’s motion for the appointment of a receiver should have been considered on the merits:

… [A]n order of dismissal is not the same as a judgment under CPLR 5011. CPLR 5011 is routinely utilized by practitioners and courts without controversy, as its mechanics are well-understood and not particularly complicated. A judgment is a paper that reflects the resolution of an action or proceeding … . A judgment may be either interlocutory or final. It “shall refer to, and state the result of, the verdict or decision, or recite the default upon which it is based” (CPLR 5011 …). A judgment is entered by the clerk at the conclusion of an action or proceeding (see CPLR 5016[a]). An action is not actually concluded until a final judgment is entered … . HSBC Bank USA, N.A. v Rubin, 2022 NY Slip Op 05682, Second Dept 10-12-22

Practice Point: An order dismissing an action does not conclude the action. Only a final judgment entered by the clerk terminates an action. Here there was an order dismissing the action but no judgment had been entered. Therefore, plaintiff’s post-dismissal motion should have been considered on the merits.

October 12, 2022

Arbitration, Civil Procedure, Contract Law, Evidence

A QUESTION OF FACT WHETHER THE PARTIES AGREED TO ARBITRATE THE DISPUTE REQUIRES A FRAMED-ISSUE HEARING; THE PROPER PROCEDURE IF ARBITRATION IS REQUIRED IS TO STAY THE UNDERLYING SUIT, NOT DISMISS IT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) there was a question of fact whether the parties agreed to arbitrate the dispute, requiring a framed-issue hearing; and (2) arbitration is not a defense to an action; so where arbitration is required the underlying action is stayed, not dismissed:

… [Q]uestions of fact exist as to whether the parties agreed to arbitrate the instant dispute, which questions require a hearing (see CPLR 7503[a] …). We therefore remit the matter … for a framed-issue hearing, and thereafter, a new determination of that branch of [the] motion which was pursuant to CPLR 7503 to compel arbitration.

… Supreme Court should have denied [the] motion which was pursuant to CPLR 3211(a)(1) to dismiss the … complaint based upon the arbitration agreement. “An agreement to arbitrate is not a defense to an action,” and “[t]hus, it may not be the basis for a motion to dismiss” … . The proper remedy, should a valid agreement to arbitrate exist, is an order compelling arbitration, which operates to stay the action (see CPLR 7503[a] …). Ferarro v East Coast Dormer, Inc., 2022 NY Slip Op 05679, Second Dept 10-12-22

Practice Point: If there is a question of fact whether the parties agreed to arbitrate a dispute, a framed-issue hearing is required. If there is a valid agreement to arbitrate, the underlying action should be stayed pending the arbitration, not dismissed.

October 12, 2022

Evidence, Medical Malpractice, Negligence

PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION WAS CONCLUSORY AND SPECULATIVE; THE AFFIDAVIT, THEREFORE, DID NOT RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert affidavit in this medical malpractice action was conclusory and speculative, and therefore did not raise a question of fact:

The plaintiff submitted the affidavit of her expert, a physician board certified in vascular surgery, who agreed with [defendant} Mansouri’s plan to perform right femoral popliteal bypass surgery. The plaintiff’s expert further opined, however, that Mansouri departed from the accepted standard of care by not choosing a different vessel once he found the popliteal artery to be diseased with plaque. The expert’s affidavit was conclusory and speculative. While the expert opined that Mansouri should have used a different vessel, he failed to specify which vessel should have been used … . For that same reason, the assertion by the plaintiff’s expert that “the vessel should have been bypassed more distally” was conclusory and speculative. Moreover, the opinion of the plaintiff’s expert that Mansouri deviated from good and accepted medical practice by failing to verify that the plaintiff had sufficient perfusion after the surgery is unsupported by competent evidence … . Coffey v Mansouri, 2022 NY Slip Op 05678, Second Dept 10-12-22

Practice Point: The plaintiff’s expert’s affidavit in this medical malpractice case was deemed speculative, conclusory and unsupported by competent evidence. Defendants’ motion for summary judgment should have been granted.

October 12, 2022

Tag Archive for: Second Department

THERE WERE DISPUTED FACTS CONCERNING WHETHER DEFENDANT BREACHED THE COOPERATION AGREEMENT; THE JUDGE SHOULD HAVE HELD A HEARING TO RESOLVE THE DISPUTED FACTS; DEFENDANT’S CONVICTION BY GUILTY PLEA REVERSED (SECOND DEPT).

THE EVIDENCE DID NOT SUPPORT THE FINDING MOTHER NEGLECTED HER TWO-MONTH OLD CHILD BY EXPOSING THE CHILD TO DOMESTIC VIOLENCE; THAT THE CHILD MAY HAVE HEARD LOUD ARGUING BEFORE GRANDMOTHER TOOK THE CHILD TO HER APARTMENT WAS NOT ENOUGH (SECOND DEPT).

ALTHOUGH FATHER DEMONSTRATED HIS FAILURE TO PAY CHILD SUPPORT WAS NOT WILLFUL, FAMILY COURT SHOULD HAVE ENTERED A MONEY JUDGMENT BASED ON HIS FAILURE TO OBEY THE LAWFUL ORDER OF CHILD SUPPORT (SECOND DEPT).

THE EVIDENCE SUPPORTED THE FINDING OF A SINGLE INSTANCE OF NEGLECT OF FATHER’S 14-YEAR-OLD DAUGHTER; BUT THAT EVIDENCE DID NOT SUPPORT A FINDING OF DERIVATIVE NEGLECT RE: FATHER’S YOUNGER DAUGHTER (SECOND DEPT).

DEFENDANT’S GENERAL AWARENESS THAT PUDDLES FORMED IN THE AREA OF PLAINTIFF’S SLIP AND FALL AND THAT WATER TURNS TO ICE WAS NOT ENOUGH TO DEMONSTRATE DEFENDANT HAD CONSTRUCTIVE NOTICE OF THE ICY CONDITION (SECOND DEPT).

THE JUDGE SHOULD HAVE GRANTED DEFENDANTS’ ATTORNEY’S REQUEST FOR AN INTERPRETER; A NEW HEARING TO DETERMINE THE VALIDITY OF SERVICE OF PROCESS IN THIS FORECLOSURE ACTION WAS REQUIRED (SECOND DEPT).

A QUESTION OF FACT WHETHER THE PARTIES AGREED TO ARBITRATE THE DISPUTE REQUIRES A FRAMED-ISSUE HEARING; THE PROPER PROCEDURE IF ARBITRATION IS REQUIRED IS TO STAY THE UNDERLYING SUIT, NOT DISMISS IT (SECOND DEPT).

PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION WAS CONCLUSORY AND SPECULATIVE; THE AFFIDAVIT, THEREFORE, DID NOT RAISE A QUESTION OF FACT (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.