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RETROACTIVE IMPOSTION OF THE SUPPLEMENTAL SEX OFFENDER VICTIM FEE DOES NOT VIOLATE THE EX POST FACTO CLAUSE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Christopher, determined the retroactive imposition of the supplemental sex offender victim fee did not violate the Ex Post Facto Clause of the US Constitution. The fee was deemed to have a revenue-generating purpose, not a punitive purpose, and was not so punitive in effect as to negate the revenue-generating purpose. The court noted two two decisions (People v Bradshaw, 76 AD3d 566, People v Diggs, 73 AD3d 1210).should no longer be followed:

… [A] review of the legislative history of the 2004 amendment pursuant to which the supplemental sex offender victim fee was added to Penal Law § 60.35, reveals that it was part of an act entitled “Appropriations-Budgets,” that enacted “into law major components of legislation which are necessary to implement the state fiscal plan for the 2004-2005 state fiscal year” … . …

Next, we proceed to the second step of the inquiry, and consider whether the statute is punitive in effect … . In so doing, we consider the following factors articulated in Kennedy v Mendoza-Martinez (372 US 144): “[1] whether the sanction involved an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment—retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned” … . People v Bradshaw, 2022 NY Slip Op 05216, Second Dept 9-21-22

Practice Point: Retroactive imposition of the supplemental sex offender victim fee does not violate the Ex Post Facto clause. The purpose of the fee is to generate revenue, not to punish. The fee is not so punitive in nature as to negate its revenue-generating purpose.

 

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DEFENDANT WAS ENTITLED TO A HEARING ON WHETHER COUNSEL WAS INEFFECTIVE FOR FAILING TO INFORM HIM OF THE IMMIGRATION CONSEQUENCES OF HIS GUILITY PLEA AND FOR FAILING TO NEGOTIATE A PLEA TO AN OFFENSE WHICH DID NOT MANDATE DEPORTATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on his motion to vacate his conviction by guilty plea on ineffective assistance ground. Defendant alleged counsel was ineffective (1) for failing to inform him deportation would be mandatory and (2) for not negotiating a plea to an offense which would not mandate deportation:

… [T]he defendant’s contention that his counsel misadvised him as to the immigration consequences of his plea of guilty is not contradicted by the record, and is arguably supported by the representations made by counsel on the record … , which suggest that counsel did not realize that the defenses to deportation which the defendant might have raised in immigration court would be barred by his plea. In any event, the record does not support a conclusion that there is “no reasonable possibility” that the defendant’s allegations are true (CPL 440.30[4][d] …). Furthermore, the defendant’s averments, including that he has resided in the United States since he was 16 years old, and that he had a child when he entered his plea of guilty, sufficiently demonstrate the existence of a question of fact as to whether it was reasonably probable that the defendant would not have entered a plea of guilty if he had been correctly advised of the deportation consequences of the plea … .

… [T]he defendant was entitled to a hearing on his contention that he was denied the effective assistance of counsel based upon his counsel’s failure to attempt to negotiate a more favorable plea. The defendant’s allegation that the People offered another plea which would not have constituted an aggravated felony under federal immigration law demonstrated “a reasonable possibility that his plea counsel could have secured a plea deal with less severe immigration consequences” … . People v Alexander, 2022 NY Slip Op 05215, Second Dept 9-21-22

Practice Point: Here defendant was entitled to a hearing on whether his attorney was ineffective for (1) failing to inform him deportation was mandatory for the offense to which he pled guilty and (2) failing to negotiate a plea to an offense which did not mandate deportation.

 

WHERE NEITHER PARENT CAN BE SAID TO HAVE CUSTODY OF THE CHILDREN FOR THE MAJORITY OF THE TIME, THE PARENT WITH THE GREATER RESOURCES SHOULD BE DEEMED THE NONCUSTODIAL PARENT FOR CHILD SUPPORT PURPOSES (SECOND DEPT).

The Second Department, reversing Family Court, in a full-fledged opinion by Justice Iannacci, in a matter of first impression in the Second Department, determined that where custody is effectively shared equally the parent with the greater resources should be deemed the noncustodial parent for child support purposes:

We conclude, to the contrary, that the court-ordered custody arrangement in this case splits the parents’ physical custody of the children in such a manner that “neither can be said to have physical custody of the children for a majority of the time” … . In such circumstances, the parent having the higher income and thus bearing the greater pro rata share of the child support obligation, here, allegedly, the father, is deemed the noncustodial parent for child support purposes … . * * *

.. [W]hile counting custodial overnights may suffice in most shared custody cases, that approach should not be applied where it does not reflect the reality of the situation. Similarly, while it may be clear in most cases which parent’s share of the parenting time constitutes the majority of custodial time … , the reality of the situation must also be considered where there is a closer division of parenting time. * * *

… [T]his is a case in which the “custodial arrangement splits the children’s physical custody so that neither can be said to have physical custody of the children for a majority of the time” … . Thus, “the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the ‘noncustodial’ parent” … . Matter of Smisek v DeSantis, 2022 NY Slip Op 05210, Second Dept 9-21-22

Practice Point: In a matter of first impression in the Second Department. the appellate court determined that where neither parent has custody of the children for a majority of the time, the parent with the greater resources should be deemed the noncustodial parent for child support purposes.

 

DEFENDANT DID NOT ADEQUATELY EXPLAIN HER FAILURE TO RECEIVE THE SUMMONS AND COMPLAINT WHICH WERE MAILED TWICE; THEREFORE DEFENDANT’S MOTION TO VACATE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED; STRONG DISSENT (SECOND DEPT).

The Second Department, reversing Supreme Court, over an extensive dissent, determined defendant’s motion to vacate the default judgment should not have been granted. Defendant, Cupid, alleged she was on vacation and did not learn of the action until the motion for a default judgment. The Second Department concluded Cupid may have adequately explained why she did not see the summons and complaint affixed to her door, but  failed to explain why she did not receive the summons and complaint by mail:

Cupid claimed that her denial of receipt was not bare and conclusory, based upon evidence that she was away on vacation when the summons and complaint were left at her door pursuant to CPLR 308(4). However, even assuming that that explanation was sufficient for her alleged failure to receive the summons and complaint left at her door, Cupid did not explain why she did not receive notice by mail—which was effected twice. The bare conclusory denial of receipt was insufficient to establish a reasonable excuse for the default, or lack of notice of the action … . In light of that determination, it is not necessary to determine whether Cupid demonstrated the existence of a potentially meritorious defense for purposes of either CPLR 5015(a)(1) or 317 … . Gray v Goodluck-Hedge, 2022 NY Slip Op 05204, Second Dept 9-21-22

Practice Point: Conclusory allegations the summons and complaint were not received by the defendant will not support the vacation of a default judgment. Here defendant may have explained why she did not see the summons and complaint affixed to her door, but failed to address the fact that the summons and complaint were mailed to her twice.

 

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THERE WAS VIDEO EVIDENCE OF THE SLIP AND FALL, PHOTOGRAPHIC EVIDENCE OF THE UNLAWFUL DRAIN PIPE WHICH WAS THE SOURCE OF THE ICE ON THE SIDEWALK, AND EXPERT EVIDENCE; DEFENDANTS’ MERE HOPE THAT DISCOVERY WOULD REVEAL EVIDENCE TO DEFEAT PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT DID NOT SUPPORT THE DENIAL OF THE MOTION AS PREMATURE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment in this slip and fall case was not premature and should have been granted. There was video evidence and photographs depicting an unlawfully disconnected drain pipe which was the source of the ice on the sidewalk:

“Although determination of a summary judgment motion may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable to the opponent of the motion (see CPLR 3212[f]), ‘[a] determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence'” … . …

… [W]here the icy condition on the sidewalk as well as Sloan’s fall are clearly depicted on a surveillance video and the condition of the drain pipe over time is revealed in photographs of the building, the defendants have offered nothing more than hope and speculation that additional discovery might uncover evidence sufficient to raise triable issues of fact regarding the manner in which the accident occurred, the cause of [plaintiff’s] fall, and their notice of the defective condition of the drain pipe … . Sloan v 216 Bedford Kings Corp., 2022 NY Slip Op 05173, Second Dept 9-14-22

Practice Point: Where plaintiff makes out a prima facie case and the defendant doesn’t raise a question of fact, defendant’s mere hope that discovery will provide evidence to defeat plaintiff’s motion for summary judgment is not enough to support denial of the motion aa premature.

 

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THERE WAS NO EVIDENCE MOTHER PREVIOUSLY FILED FRIVOLOUS VISTATION PETITIONS; THE JUDGE SHOULD NOT HAVE PROHIBITED HER FROM FILING FUTURE PETITIONS WITHOUT LEAVE OF COURT (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the judge should have prohibited mother from filing visitation petitions without leave of court:

The Family Court should not have prohibited the mother from filing petitions for visitation after October 22, 2021, without written leave of the court, since there is no basis in the record to demonstrate that the mother filed frivolous petitions or filed petitions out of ill will or spite … . Matter of Genao-Archibald v Archibald, 2022 NY Slip Op 05166, Second Dept 9-14-22

Practice Point: If there is no evidence in the record that mother previously filed frivolous or spiteful petitions for visitation, the appellate court will reverse a judge’s prohibition of future petitions without leave of court.

 

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ALTHOUGH PLAINTIFF’S EXPERT IN THIS STAIRWAY SLIP AND FALL COULD NOT TESTIFY THE STAIRWAY VIOLATED ANY STATUTE OR REGULATION, THE EXPERT COULD HAVE TESTIFIED THE SLIPPERY CONDITION VIOLATED A CUSTOM IN THE INDUSTRY AS REPRESENTED BY THE AMERICAN SOCIETY FOR TESTING MATERIALS STANDARDS; THE EXPERT SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert (Fein) in this stairway slip and fall case should not have been precluded from testifying. Although the expert could not testify the condition of the stairway violated a code or regulation, he could have testified the slippery condition violated a custom in the industry represented by the American Society for Testing Materials standards:

The absence of a violation of a specific code or ordinance is not dispositive of the plaintiff’s allegations based on common-law negligence principles … . Accordingly, a defendant may be held negligent for departing from generally accepted customs and practices even when the allegedly defective condition is in compliance with the relevant codes and ordinances … .

Had Fein been permitted to testify, he could have addressed whether the coefficient of friction of the subject staircase, as measured during his inspection, was a departure from generally accepted customs and practices, and whether the defendants were negligent in failing to correct it … . Fein could have testified as to the American Society for Testing Materials standards, even though the Supreme Court correctly stated that they were not law. Fein could have testified as to whether those standards represented the general custom or usage in the industry, and the jury could have considered any deviation from those standards as some evidence of negligence . Any purported shortcomings in Fein’s testing go to the weight to be given his testimony, not its admissibility … …. [T]he court improvidently exercised its discretion in granting the defendants’ motion in limine to preclude the plaintiff from presenting the proposed expert testimony relating to the American Society for Testing Materials standards regarding the coefficient of friction, and the preclusion of this testimony deprived the plaintiff of a fair trial … . Martell v Dorchester Apt. Corp., 2022 NY Slip Op 05164, Second Dept 9-14-22

Practice Point: Here in this stairway slip and fall, the expert could not testify the stairway violated any statute or code. However the expert was prepared to testify the slippery condition violated a custom in the industry as represented by the American Society for Testing Materials standards, which may be evidence of negligence. The experts should have been allowed to testify.

 

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THE FORECLOSURE ACTION WAS AUTOMATICALLY STAYED WHEN DEFENDANT’S ATTORNEY WAS SUSPENDED; EVEN THOUGH THE ORDER GRANTING THE ATTORNEY’S MOTION TO WITHDRAW DIRECTED DEFENDANT TO RETAIN AN ATTORNEY OR GO AHEAD PRO SE, DEFENDANT WAS NEVER SERVED WITH A NOTICE TO APPOINT AN ATTORNEY REQUIRED BY CPLR 321; THEREFORE THE STAY WAS NOT LIFTED AND DEFENDANT’S MOTION TO VACATE THE SUMMARY JUDGMENT ORDER SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant (Simonsen) in this foreclosure action was never given notice to appoint new counsel after his attorney (Sirianni) was suspended and withdrew from the case. Even though, in granting the Sirianni’s motion to withdraw, the court directed defendant to retain new counsel or continue pro se, defendant was never provided with the notice required by CPLR 321(c). Therefore defendant’s motion to vacate the summary judgment order should have been granted:

CPLR 321(c) provides, inter alia, that “[i]f an attorney dies, becomes physically or mentally incapacitated, or is removed, suspended or otherwise becomes disabled at any time before judgment, no further proceeding shall be taken in the action against the party for whom he [or she] appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party.” “[D]uring the stay imposed by CPLR 321(c), no proceedings against the party will have any adverse effect” … , and “[o]rders or judgments that are rendered in violation of the stay provisions of CPLR 321(c) must be vacated” … . “It lies within the power of the other side to bring the stay to an end by serving a notice on the affected party to appoint new counsel within 30 days” … . The protections of CPLR 321(c) can be waived where the party elects to proceed pro se … . …

This action was automatically stayed by operation of CPLR 321(c) on … the effective date of Sirianni’s suspension from the practice of law. At no point was Simonsen provided, pursuant to CPLR 321(c), with the required notice to appoint another attorney, either by the court or opposing counsel. Moreover, the withdrawal order, which granted Sirianni’s motion pursuant to CPLR 321(b)(2) for leave to withdraw as counsel for Simonsen, had no practical effect as to whether the notice provision of CPLR 321(c) applied to this case … . … [T]he withdrawal order failed to direct service of a notice to appoint another attorney upon Simonsen, and there is no evidence in the record that Simonsen was ever served with a copy of the withdrawal order … . The record is also devoid of any evidence that … Simonsen waived the protections of CPLR 321(c) by electing to proceed pro se. Therefore, the automatic stay was not lifted until Simonsen moved, in effect, to vacate the summary judgment order … . JPMorgan Chase Bank, N.A. v Simonsen, 2022 NY Slip Op 05156, Second Dept 9-14-22

Practice Point: As soon as defendant’s attorney was suspended, the foreclosure action was stayed. Even though the court, in its order granting the attorney’s motion to withdraw, directed defendant to retain new counsel or go ahead pro se, defendant was never given notice to appoint another attorney required by CPLR 321. Therefore the stay was not lifted and defendant’s motion to vacate the summary judgment order should have been granted.

 

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DEFENDANT DID NOT DEMONSTRATE DISCOVERY WOULD LEAD TO EVIDENCE ESSENTIAL TO DEFEND AGAINST PLAINTIFF’S SUMMARY JUDGMENT MOTION IN THIS INTERSECTION TRAFFIC ACCIDENT CASE; PLAINTIFF’S MOTION SHOULD NOT HAVE BEEN DENIED AS PREMATURE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff motorcyclist’s motion for summary judgment in this intersection traffic accident case was not premature, defendant’s violation of the Vehicle and Traffic law was negligence per se, and the comparative-negligence affirmative defense should have been dismissed. Plaintiff demonstrate defendant made an illegal left turn in front of him and he could not avoid the collision:

… [A] violation of the Vehicle and Traffic Law constitutes negligence as a matter of law … . “The operator of an oncoming vehicle with the right-of-way is entitled to assume that the opposing operator will yield in compliance with the Vehicle and Traffic Law” … . “[A] driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” … . …

… [T]he plaintiff’s motion was not premature since the defendants failed to demonstrate that discovery might lead to relevant evidence or that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff (see CPLR 3212[f] … ). Higgins v Stelmach, 2022 NY Slip Op 05155, Second Dept 9-13-22

Practice Point: Plaintiff demonstrated defendant violated the Vehicle and Traffic Law by making a left turn in front of plaintiff’s motorcycle. Defendant did not demonstrate discovery would lead to evidence essential to defending the motion for summary judgment. The motion therefore was not premature. Plaintiff was entitled to summary judgment and dismissal of the comparative negligence affirmative defense.

 

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A LATE MOTION FOR SUMMARY JUDGMENT SHOULD BE ALLOWED WHERE, AS HERE, DISCOVERY WAS NOT COMPLETE AT THE TIME THE MOTION WAS DUE AND THE DISCOVERY IS ESSENTIAL TO THE MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court in this Labor Law 240(1) and 241(6) action, determined Supreme Court properly found plaintiff offered a sufficient reason for making a late motion for summary judgment, i.e., discovery was incomplete at the time the motion was due, but should not have denied the motion on the ground the discovery was not essential to the motion. The discovery dealt with whether plaintiff was engaged in unauthorized work at the time of the accident, which is a defense to Labor Law 240(1) and 241(6) actions:

A party may not move for summary judgment after the deadline to do so has expired, “except with leave of court on good cause shown” (CPLR 3212[a]). As a result, a court may not consider a late motion for summary judgment unless the moving party offers “a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy” … . “While significant outstanding discovery may, in certain circumstances, constitute good cause for a delay in making a motion for summary judgment,” the movant must establish that the discovery was “essential to its motion” … . This standard generally requires that the discovery be relevant to resolving disputed issues of fact … . Even if the discovery is essential, good cause for the delay will only exist if the party promptly moves for summary judgment after securing such discovery … . Fuczynski v 144 Div., LLC, 2022 NY Slip Op 05151, Second Dept 9-14-22

Practice Point: Good cause for filing a late motion for summary judgment is demonstrated where, as here, the motion was due before discovery was complete and the discovery is essential to the motion.

 

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