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ALTHOUGH THE JUDGE CAN PROPERLY AWARD COUNSEL FEES TO PETITIONER BASED UPON RESPONDENT’S VIOLATION OF AN ORDER OF PROTECTION, A HEARING IS NECESSARY TO DETERMINE THE AMOUNT OF THE FEE (SECOND DEPT).

The Second Department determined that the judge properly exercised discretion in awarding counsel fees to petitioner based upon appellant’s (Gorish’s) violation of an order of protection. However, the amount of counsel fees should have been determined by a hearing:

Under Family Court Act § 846-a, the court “may order the respondent to pay the petitioner’s reasonable and necessary counsel fees in connection with the violation petition where the court finds that the violation of its order was willful.” “The award of counsel fees is committed to the discretion of the Family Court” … . “[T]he reasonable amount and nature of the claimed services must be established at an adversarial hearing” … . Here, while the Family Court providently exercised its discretion in awarding counsel fees to the petitioner, the court erred in determining the amount of the counsel fees without a hearing. Matter of Sicina v Gorish, 2022 NY Slip Op 05535, Second Dept 10-5-22

Practice Point: The violation of an order of protection is a proper ground for awarding counsel fees to the petitioner, but the amount must be determined by a hearing.

 

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EVEN THOUGH FATHER REFUSED TO COOPERATE WITH AN INVESTIGATION RELATED TO HIS PETITION FOR CUSTODY, THE JUDGE SHOULD NOT HAVE AWARDED CUSTODY TO MOTHER WITHOUT FIRST HOLDING A HEARING (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the judge should not have awarded mother sole custody of the child without first holding a hearing:

Supreme Court directed that the Administration for Children’s Services (hereinafter ACS) conduct an investigation and directed supervised visits between the father and the child. The father failed to comply with the investigation, including refusing to provide his address to ACS, and he failed to complete the intake process for arranging the supervised visits. * * *

“[C]ustody determinations should generally 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” … . “[A] court opting to forgo a plenary hearing must take care to clearly articulate which factors were—or were not—material to its determination, and the evidence supporting its decision” … .

Here, the Supreme Court erred in making a final custody determination without a hearing and without inquiring into the best interests of the child … . Matter of Jones v Rodriguez, 2022 NY Slip Op 05529, Second Dept 10-5-22

Practice Point: Despite father’s failure to cooperate with an investigation stemming from his petition for custody, the judge should have held a hearing before awarding custody to mother.

 

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THE PETITION FOR LEAVE TO SERVE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN DISMISSED BASED ON THE WRONG VENUE BECAUSE RESPONDENTS DID NOT OBJECT TO THE VENUE; IN THIS MEDICAL MALPRACTICE CASE BASED UPON A STILLBIRTH, MOTHER’S AND FATHER’S PETITIONS MUST BE CONSIDERED SEPARATELY; ALTHOUGH PETITIONERS DID NOT SHOW RESPONDENTS HAD TIMELY KNOWLEDGE OF THE POTENTIAL LAWSUIT, MOTHER DEMONSTRATED AN ADEQUATE EXCUSE AND RESPONDENTS’ LACK OF PREJUDICE; MOTHER’S PETITION WAS GRANTED AND FATHER’S WAS DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined mother’s (but not father’s) petition for leave to serve a late notice of claim should have been granted in this medical malpractice action stemming from a stillbirth. Supreme Court had dismissed the petition because it was brought in the wrong county. But, because the respondents did not object to the venue, the judge did not have the authority to dismiss the petition on that ground. Even though mother did not demonstrate the respondents had timely knowledge of the potential malpractice action, her petition should have been granted because she had an adequate excuse (mental health issues triggered by the stillbirth) and demonstrated respondents were not prejudiced by the delay. Father’s petition must be considered separately from mother’s and was denied (mother’s excuse did not apply to father):

… Supreme Court … erred when it raised the issue of improper venue sua sponte and dismissed this proceeding on that ground. The court should have instead decided the merits of the petition. * * *

Where leave is sought in one proceeding to pursue both a direct claim by an injured person and a derivative claim by his or her spouse, the spouse’s request for leave to serve a late notice of claim will not automatically be granted even if leave is granted to the injured person. Instead, the spouse’s request must be analyzed separately … . .* * *

While the actual knowledge factor [i.e., knowledge of the potential lawsuit] generally should be given “great weight” in the analysis … , the petitioners’ failure to satisfy that factor is not fatal to their petition for leave to serve a late notice of claim … . * * *

… [T]he petitioners met their initial minimal burden of providing a plausible argument supporting a finding of no substantial prejudice based on their contention that the respondents could defend themselves by reviewing the relevant medical records, interviewing witnesses, and consulting with experts. * * *

… [Mother] demonstrated a reasonable excuse for her delay due to her emotional and psychological injuries and the accompanying preoccupation with her well-being, as well as her attorney’s prompt investigation into the claim … . Matter of Balbuenas v New York City Health & Hosps. Corp., 2022 NY Slip Op 05526, Second Dept 10-5-22

Practice Point: The petition for leave to file a late notice of claim should not have been dismissed based on improper venue because respondents didn’t object to the venue.

Practice Point: The fact that petitioners did not demonstrate the respondents in this medical malpractice case had timely knowledge of the potential lawsuit was not fatal to the petition.

Practice Point: Here the potential medical malpractice action was based upon a stillbirth. Mother’s and father’s petitions must be considered separately.

Practice Point: Mother’s mental health issues stemming from the stillbirth constituted an adequate excuse for failing to timely serve a notice of claim.

Practice Point: Petitioners demonstrated the respondents were not prejudiced by the delay because of the medical records and the ability to interview witnesses.

Practice Point: Mother’s petition was granted, but father’s was denied because the only factor available to father was the absence of prejudice to the respondents.

 

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ALTHOUGH DEFENDANT DRIVER HAD THE RIGHT-OF-WAY AND PLAINTIFF APPARENTLY PULLED OUT OF A DRIVEWAY IN FRONT OF DEFENDANT, PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT KEPT A PROPER LOOKOUT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff had raised a question of fact in this traffic accident case, even though defendant driver had the right-of-way and plaintiff pulled out of a driveway in front of defendant. The facts are not described:

The defendants’ evidence established, prima facie, that the defendant driver had the right-of-way, that the plaintiff was at fault in the happening of the accident, and that the defendant driver was not at fault in the happening of the accident (see Vehicle and Traffic Law § 1143 …). In opposition, the plaintiff submitted, among other things, his own affidavit, in which he gave a completely different version of the events preceding the accident. The plaintiff’s evidence raised a triable issue of fact as to whether the defendant driver, who was obligated to keep a proper lookout, see what was there to be seen through the reasonable use of his senses, and avoid colliding with other vehicles … , was indeed at fault in the happening of the accident. Hassan v Brauns Express, Inc., 2022 NY Slip Op 05520, Second Dept 10-5-22

Practice Point: Defendant driver had the right-of-way and plaintiff apparently pulled out of a driveway in front of defendant. However, plaintiff raised a question of fact about whether defendant kept a proper lookout which was sufficient to avoid summary judgment.

 

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IN THIS CHILD VICTIMS ACT SUIT AGAINST DEFENDANT SCHOOL DISTRICT ALLEGING THE ABUSE OF PLAINTIFF-STUDENT BY A TEACHER AND HER STEPFATHER IN THE 1970’S, THE FAILURE-TO-REPORT-ABUSE CAUSES OF ACTION PURSUANT TO THE SOCIAL SERVICES LAW SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this Child Victims Act lawsuit, determined the causes of action alleging the defendant school district failed to report the abuse of plaintiff-student by a teacher (Bova) pursuant to the Social Services Law should have been dismissed:

Social Services Law § 413, which went into effect on September 1, 1973, provides that certain school officials “are required to report or cause a report to be made in accordance with this title when they have reasonable cause to suspect that a child coming before them in their professional or official capacity is an abused or maltreated child” … . Social Services Law § 420(2) provides that “[a]ny person, official or institution required by this title to report a case of suspected child abuse or maltreatment who knowingly and willfully fails to do so shall be civilly liable for the damages proximately caused by such failure.” For purposes of Social Services Law § 413, an “abused child” means “a child under eighteen years of age and who is defined as an abused child by the family court act” … . Family Court Act § 1012(e) defines an “abused child” as one harmed by a “parent or other person legally responsible for his [or her] care.” … .

… Supreme Court should have granted that branch of the District’s motion which was to dismiss the ninth cause of action, alleging that it failed to report suspected child abuse committed by Bova, because Bova was not a “person legally responsible” for the plaintiff’s care … . The court also should have granted that branch of the District’s motion which was to dismiss the tenth cause of action, alleging that it failed to report suspected child abuse committed by the plaintiff’s stepfather, insofar as asserted against it. The complaint does not contain any allegation that the District received information about abuse committed by the plaintiff’s stepfather at any time after the end of the 1972-1973 school year in June 1973, which was months prior to September 1, 1973, the date that Social Services Law § 413 went into effect … . Finally, …punitive damages are not available against the District … . Hanson v Hicksville Union Free Sch. Dist., 2022 NY Slip Op 05519, Second Dept 10-5-22

Practice Point: In this Child Victims Act suit against defendant school district alleging abuse of plaintiff-student by a teacher and her stepfather in the 1970’s, the Social Services Law causes of action alleging the district failed to report the abuse were dismissed because: (1) the teacher was not legally responsible for plaintiff’s care; and (2) the Social Services Law requiring the school to report abuse by the stepfather was not in effect at the time.

 

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THE DEFENDANT “DORMITORY AUTHORITY OF NEW YORK STATE’S” INSURERS HAD ACTUAL KNOWLEDGE OF THE ESSENTIAL FACTS OF PLAINTIFF’S SLIP AND FALL WITHIN 90 DAYS OF THE ACCIDENT; THE PETITION FOR LEAVE TO SERVE THE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to serve a late notice of claim in this slip and fall case against the Dormitory Authority for the State of New York (DASNY) should have been granted because DASNY’s insurers had actual knowledge of the facts of the within 90 days of the accident:

… [T]he petitioner’s submissions demonstrated that DASNY’s insurers had actual notice of the essential facts constituting the claim within 90 days of the petitioner’s accident. The petitioner annexed to the petition a copy of a certificate of liability insurance stating that his employer was insured under a number of policies in connection with the construction project at the premises and identifying both DASNY and the State as “Additional Insureds” with respect to the project. The petitioner also annexed to the petition a letter dated July 8, 2019, approximately 70 days after the accident, in which the State informed the insurers named in the certificate of liability insurance that a notice of claim concerning the petitioner’s accident had been served on the State on or about June 14, 2019. The notice of claim that had been served on the State identifies the date, time, and location of the petitioner’s accident, describes the petitioner’s injuries, and specifies construction debris on the stairwell as the dangerous condition which caused the petitioner’s accident. Thus, DASNY’s insurers acquired actual notice of the essential facts constituting the petitioner’s claim within 90 days of his accident (see General Municipal Law § 50-e[5] …). Matter of Joseph v City of New York, 2022 NY Slip Op 05318, Second Dept 9-28-22

Practice Point: A slip and fall lawsuit against the Dormitory Authority of the State of New York (DANYS) must be preceded by service of a notice of claim. Here the fact that the DANYS’s insurers had been given notice of the essential facts of the slip and fall within 90 days of the accident was a sufficient ground for leave to serve a late notice of claim.

 

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THE POINT AT WHICH LEAVE OF COURT AND THE STIPULATION OF ALL PARTIES IS REQUIRED TO DISCONTINUE A FORECLOSURE ACTION IS THE RETURN DATE FOR THE MOTION TO CONFIRM THE REFEREE’S REPORT (SECOND DEPT).

The Second Department, in a matter of first impression, in a full-fledged opinion by Justice Dillon, in the context of a foreclosure action, determined the point at which leave of court and the stipulation of all parties is required to discontinue the action is the return date for the motion to confirm the referee’s report:

CPLR 3217(b) permits the discontinuance of an action by a party with leave of court or by a stipulation of the parties before the cause is submitted to the trier of fact for a determination of the facts; but once the cause has been submitted for a determination of the facts, a discontinuance may only be granted upon both leave of court and a stipulation of all parties appearing in the action. While the mechanics of the statute are clear when an action is tried before a judge or jury, no appellate case has yet addressed the question of when an action is considered “submitted to the court” under CPLR 3217(b) when the matter is referred to a referee to hear and report, and the report is thereafter subject to confirmation, rejection, or modification by the Supreme Court. We hold that the operative date for requiring both leave of court and for the parties to stipulate to the discontinuance is the return date of a motion to confirm, reject, or modify the assigned referee’s report, as that is the moment when the factual issues of a case are submitted to the court for the determinative deliberative process. * * *

We find, as a matter of first impression, that where an action is referred to a court attorney referee to hear and report, the time that is most akin to the submission of the case to the court or the jury for a determination of the facts is the return date of the motion to confirm the referee’s report. Prior to that time, the conclusion of the trial before the referee is not final as the referee, while setting forth his or her findings of fact and conclusions of law, has no authority to determine the matter … . Emigrant Bank v Solimano, 2022 NY Slip Op 05311, Second Dept 9-28-22

Practice Point: In a matter of first impression, the Second Department held that the point at which leave of court and the stipulation of all parties to discontinue a foreclosure action is the return date for the motion to confirm the referee’s report.

 

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TINTED WINDOWS CONSTITUTED A VALID REASON FOR THE VEHICLE STOP; THE VALIDITY OF THE IMPOUNDMENT OF DEFENDANT’S VEHICLE AND THE INVENTORY SEARCH WERE NOT PRESERVED FOR APPEAL; THE DISSENT ARGUED THE TINTED-WINDOWS STOP, THE IMPOUNDMENT AND THE INVENTORY SEARCH WERE INVALID (SECOND DEPT).

The Second Department, over an extensive two-justice dissent, determined (1) the vehicle stop based upon tinted windows was valid, (2) the impoundment of defendant’s vehicle (defendant did not have a license); was proper, and (3) the inventory search of the vehicle was valid: Marijuana and and a firearm were found in the search of the vehicle:

… [W]indow tint violations are a recognized basis for stopping a motor vehicle. The legal test, according to the Court of Appeals, is whether the police officer reasonably believes the windows to be over-tinted in violation of Vehicle and Traffic Law § 375(12-a)(b) … . Officer Sepulveda’s testimony that he could not see into the defendant’s vehicle meets that test. …

The defendant’s contention on appeal that the impoundment and initial inventory search of the Nissan was unlawful was not raised before the Supreme Court and is therefore unpreserved for appellate review (see CPL 470.05[2] …), and we decline to reach that contention in the exercise of our interest of justice jurisdiction…. .

From the dissent:

I respectfully dissent in part and vote to reverse the judgment insofar as reviewed for several reasons. First, the People failed to establish a sufficient basis for the police stop of the defendant’s vehicle. Second, the People failed to establish the legality of the impoundment of the defendant’s vehicle. Third, the People failed to establish the validity of the purported inventory search of the defendant’s vehicle. People v Biggs, 2022 NY Slip Op 05328, Second Dept 9-28-22

Practice Point: Tinted windows is a valid reason for a vehicle stop. The extensive dissent in this case called into question the validity of the tinted-windows stop, the impoundment of the vehicle and the inventory search of the vehicle.

 

THE CERTIFICATES OF ACKNOWLEDGMENT FOR THE DEED AND OTHER DOCUMENTS DEMONSTRATING PLAINTIFF’S OWNERSHIP OF THE REAL PROPERTY CREATED A PRESUMPTION OF DUE EXECUTION WHICH WAS NOT OVERCOME BY DEFENDANTS’ ALLEGATIONS OF FORGERY (SECOND DEPT). ​

​The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment declaring she was the sole owner of real property should have been granted. The certificates of acknowledgment for the deed and other documents created a presumption of due execution which the defendants’ allegations of forgery did not overcome:

“A certificate of acknowledgment attached to an instrument such as a deed or a mortgage raises the presumption of due execution, ‘which presumption . . . can be rebutted only after being weighed against any evidence adduced to show that the subject instrument was not duly executed'” … . “‘[A] certificate of acknowledgment should not be overthrown upon evidence of a doubtful character, such as the unsupported testimony of interested witnesses, nor upon a bare preponderance of evidence, but only on proof so clear and convincing as to amount to a moral certainty'” … . …

… [T]he defendants failed to raise a triable issue of fact. The affidavits of interested parties submitted by the defendants were insufficient to rebut the presumption of due execution arising from the notarized certificates of acknowledgment accompanying the 1950 documents and the 1952 deed … . Oro v Figeroa, 2022 NY Slip Op 05327, Second Dept 9-28-22

Practice Point: Certificates of acknowledgment included in a deed or other documents create a presumption of due execution. Here the presumption of due execution was not overcome by allegations of forgery.​

 

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AN AFFIDAVIT WITHOUT THE RELEVANT BUSINESS RECORDS ATTACHED DID NOT DEMONSTRATE THE BANK’S COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304 IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate compliance with the mailing requirements of RPAPL 1304 and therefore should not have been awarded summary judgment:

… [A]lthough the plaintiff submitted a copy of the 90-day notice purportedly sent to the defendant by Green Tree [the loan servicer], it failed to demonstrate, prima facie, that the notice was actually mailed, either through an affidavit of mailing, other proof of mailing by the post office, or evidence of a standard office mailing procedure. Instead, the plaintiff merely submitted an affidavit from a representative of its attorney-in-fact, averring that the 90-day notice was sent by Green Tree in accordance with RPAPL 1304. That conclusory, unsubstantiated averment, standing alone, was insufficient to establish that the notice was actually mailed to the defendant by first-class and certified mail … . Moreover, the affiant based his assertions upon his review of unspecified business records without attaching any such business records to his affidavit … . “It is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … . Wilmington Sav. Fund Socy., FSB v Fernando, 2022 NY Slip Op 05231, Second Dept 9-21-22

Practice Point: In a foreclosure action, at the summary judgment  stage, proof the notice of foreclosure was mailed in accordance with RPAPL 1304 cannot be demonstrated by an affidavit which refers to documents that are not attached.

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