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THERE IS AN EXCEPTION TO THE PRESERVATION REQUIREMENT WHERE A DEFENDANT IS UNAWARE OF THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA AND THEREFORE DID NOT MOVE TO WITHDRAW THE PLEA ON THAT GROUND (SECOND DEPT).

The Second Department, remitting the matter to give the defendant the opportunity to move to vacate his guilty plea on the ground he was not aware of the possibility of deportation. The court explained the relevant exception to the preservation requirement:

“Generally, in order to preserve a claim that a guilty plea is invalid, a defendant must move to withdraw the plea on the same grounds subsequently alleged on appeal or else file a motion to vacate the judgment of conviction pursuant to CPL 440.10” … . Thus, as relevant here, a defendant is ordinarily required to preserve the contention that his or her plea of guilty was not knowing, intelligent, and voluntary because the court failed to advise him or her that the plea could expose him or her to the risk of deportation … .

There is, however, a narrow exception to this general rule. Preservation is not required “where a defendant has no practical ability to object to an error in a plea allocution which is clear from the face of the record” … . The exception applies where the defendant is unaware of the possibility of deportation during the plea and sentencing proceedings, and, therefore, has no opportunity (as well as no motivation) to move to withdraw his or her plea based on the court’s failure to apprise him or her of that potential consequence … . A defendant, of course, “can hardly be expected to move to withdraw his [or her] plea on a ground of which he [or she] has no knowledge” … . People v Jones, 2021 NY Slip Op 06701, Second Dept 12-1-21

 

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THE PLANNING BOARD DID NOT HAVE THE AUTHORITY TO WAIVE OR IGNORE THE REQUIREMENTS OF THE VILLAGE ZONING CODE; THE SPECIAL USE PERMIT SHOULD NOT HAVE BEEN ISSUED AND THE SITE PLAN SHOULD NOT HAVE BEEN APPROVED (SECOND DEPT). ​

The Second Department determined the planning board abused its discretion in issuing a special permit and approving a site plan for a plant nursery and arborist business. To issue the special permit, the planning board improperly waived a requirement that the business have frontage and access to two major roads. The approve the site plan, the planning board which violated the village zoning law:

One of the requirements of the special use permit at issue was that the arborist service, landscape services and/or wholesale nursery “shall have frontage on and practical access to two major roads” (Code of the Village of Wesley Hills [hereinafter Village Code] § 230-26[N][2]). Here, the Planning Board abused its discretion by waiving this requirement and deeming “practical access” to a second major road unnecessary. …

… A local planning board has broad discretion in deciding applications for site plan approvals, and judicial review is limited to determining whether the board’s action was illegal, arbitrary and capricious, or an abuse of discretion … . Village Code § 230-45 states that the Planning Board “shall not approve a site plan unless it shall find that such plan conforms [with] the requirements of [the Village Zoning Law].” Since the Village Zoning Law requires that a lot in the R—35 zoning district have a maximum gross impervious surface ratio of .25 (see Village Code § 230 Attachment I), the Planning Board abused its discretion in approving the site plan, which had a proposed gross impervious surface ratio of .44. Matter of Marcus v Planning Bd. of the Vil. of Wesley Hills, 2021 NY Slip Op 06618, Second Dept 11-24-21

 

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ALTHOUGH THE COURT HAS THE DISCRETION TO ALLOW AMENDMENT OF A NOTICE OF CLAIM BASED UPON EVIDENCE GIVEN AT THE 50-H HEARING, THE AMENDMENT CANNOT SUBSTANTIALLY CHANGE THE FACTS AND ADD A NEW THEORY OF LIABILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petitioner’s motion to amend the notice of claim in this medical malpractice action against the New York City Health and Hospitals Corporation should not have been granted. Although the court has the power to allow amendment of a notice of claim based upon evidence given at the 50-h hearing, the amendment cannot substantively change the facts and add a new theory of liability:

After a hearing was conducted pursuant to General Municipal Law § 50-h … , the petitioner served an amended notice of claim … expanding the dates of alleged malpractice from January 2, 2014, through September 6, 2018, based on the petitioner’s testimony at the hearing that the decedent had stomach pains since 2016, had been diagnosed with paralytic ileus, and had been treated for that condition by a physician affiliated with Coney Island Hospital since approximately 2016. …

“‘A notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim or the theory of liability'” … . “[W]hile a court has the discretion to permit a plaintiff to serve an amended notice of claim, amendment is permitted only where the error in the original notice of claim was made in good faith, the municipality is not prejudiced, and the amendment does not substantively change the nature of the claim” … . “A court may consider evidence adduced at a 50-h hearing to correct a good faith and nonprejudicial technical mistake, omission, irregularity, or defect in the notice of claim. However, the evidence adduced at the 50-h hearing cannot be used to substantively change the nature of the claim or the theory of liability” … . Matter of Lesaine v New York City Health & Hosps. Corp., 2021 NY Slip Op 06617, Second Dept 11-24-21

 

THE BIOLOGICAL FATHER’S CONSENT TO THE ADOPTION OF HIS CHILD WAS NOT REQUIRED BECAUSE HE FAILED TO SUPPORT THE CHILD DESPITE THE MEANS TO DO SO (SECOND DEPT). ​

The Second Department determined father’s consent to the adoption of his child is not required where the father has not maintained contact with the child:

“A biological father’s consent to adopt a child over six months old who was born out of wedlock is required only if the father ‘maintained substantial and continuous or repeated contact with the child as manifested by’ payment of reasonable child support and either monthly visitation or ‘regular communication’ with the subject child[ ] or custodian” … . “Domestic Relations Law § 111(1)(d) imposes a dual requirement upon the biological father, and the father’s unexcused failure to satisfy either of these requirements is sufficient to warrant a finding that his consent to the proposed adoption[ ] is not required” … .

Here, the Family Court properly determined that the father, by failing to financially support the child, despite having the means to do so, did not maintain substantial and continuous or repeated contact with the child in accordance with Domestic Relations Law § 111(1)(d) … . Matter of Raniah M. K. (Joma K.), 2021 NY Slip Op 06616, Second Dept 11-24-21

 

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PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court’s denial of plaintiff’s motion to set aside the defense verdict and ordering a new trial in this slip and fall case, determined the defense verdict was against the weight of the evidence:

“A jury verdict should not be set aside as contrary to the weight of the evidence unless ‘the jury could not have reached the verdict on any fair interpretation of the evidence'” … . Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors … . Where, as here, “a jury verdict with respect to negligence and proximate causation is irreconcilably inconsistent, that verdict must be set aside as contrary to the weight of the evidence” … .

Under the circumstances of this case, the Supreme Court should have granted that branch of the plaintiffs’ motion which was, in effect, to set aside the jury verdict as contrary to the weight of the evidence, as the finding that the defendants’ negligence was not a proximate cause of the accident was not supported by a fair interpretation of the evidence … . The infant plaintiff testified that she slipped on a step that was cracked, sloped down, and uneven. That testimony was consistent with the testimony of the plaintiffs’ expert engineer. The defendants failed to adduce any evidence to refute the testimony of the infant plaintiff and the plaintiffs’ expert witness. Middleton v New York City Tr. Auth., 2021 NY Slip Op 06613, Second Dept 11-24-21

 

WHEN THE BALANCES OF FIRST MORTGAGES ARE INCREASED WITH SECOND MORTGAGE LOANS AND A CONSOLIDATION, EXTENSION, AND MODIFICATION AGREEMENT (CEMA) IS ENTERED CONSOLIDATING THE MORTGAGES INTO SINGLE LIENS, THE FIRST NOTES AND MORTGAGES STILL EXIST; WHEN A MORTGAGE IS ERRONEOUSLY DISCHARGED WITHOUT A SATISFACTION OF THE DEBT, THE MORTGAGE MAY BE REINSTATED IF THERE HAS BEEN NO DETRIMENTAL RELIANCE ON THE ERRONEOUS DISCHARGE (SECOND DEPT).

The Second Department noted that where balances of first mortgage loans are increased with second mortgage loans and a Consolidation, Extension, and Modification Agreement (CEMA) is entered consolidating the mortgages into single liens, the first notes and mortgages still exist. And where, as here, there has been an erroneous discharge of mortgage without a satisfaction of the mortgage debt, the mortgage may be reinstated where there has been no detrimental reliance on erroneous discharge:

… [T]he plaintiff demonstrated … that MERS [Mortgage Electronic Registration Systems, Inc] erred in executing and filing the satisfaction of mortgage dated October 31, 2005, which certified that the first mortgage in the principal sum of $600,000 was paid. … [T]he satisfaction references the second mortgage, dated April 12, 2005, in the sum of $8,421.28, and acknowledges that the two mortgages were combined and consolidated to form a “single first lien.” Accordingly, the defendants failed to raise a triable issue of fact or support their contention that no mortgage existed upon which the plaintiff can foreclose. Bank of Am., N.A. v Schwartz, 2021 NY Slip Op 06602, Second Dept 11-24-21

 

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IN THIS FORECLOSURE PROCEEDING, PLAINTIFF BANK FAILED TO DEMONSTRATE STRICT COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; NO FOUNDATION FOR THE SUBMITTED BUSINESS RECORDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s summary judgment motion in this foreclosure action should not have been granted. Strict compliance with the notice requirements of RPAPL 1304 was not demonstrated with admissible evidence:

… [I]n support of its motion Bayview [plaintiff, successor-in-interest to the original plaintiff, Bank of America (BoA)] submitted the affidavit of Nicole Currey, a supervisor for Bayview, who attached to her affidavit copies of various documents generated by nonparty Walz Group, Inc. (hereinafter Walz), to establish compliance with the mailing requirements of RPAPL 1304. However, Currey failed to address the nature of the relationship between Walz and BoA , and Bayview’s submissions were insufficient to establish a foundation for the admission of the business records relied upon by Bayview to establish compliance with RPAPL 1304 … . Therefore, Bayview failed to demonstrate, prima facie, its strict compliance with the 90-day notice requirement of RPAPL 1304 … . Bank of Am., N.A. v Evanson, 2021 NY Slip Op 06601, Second Dept 11-24-21

 

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THE PLAINTIFF BICYCLIST COULD NOT IDENTIFY THE CAUSE OF HIS FALL AND THE CITY DID NOT HAVE WRITTEN NOTICE OF ANY ROADWAY DEFECTS IN THE AREA; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this bicycle-fall case should have been granted. Plaintiff could not identify the cause of his fall and the city did not have written notice of any roadway defects:

“In a trip-and-fall case, a defendant may establish its prima facie entitlement to judgement as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall” without resorting to speculation … . Here, the injured plaintiff acknowledged at the General Municipal Law § 50-h hearing that he had no recollection of what caused his accident. He testified that he remembered riding his bicycle downhill somewhere on Forest Park Drive and waking up in an ambulance—but nothing in between. Given this lack of information, “it is just as likely that the accident [was] caused by some . . . factor [other than the conditions of the road], such as a . . . loss of balance” or control … . Accordingly, a finding that the City’s negligent maintenance of the roadway, if any, was responsible for the accident would be impermissibly based on speculation … . …

… [T]he defendants established their … entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against the City by presenting evidence that the City Department of Transportation had not received prior written notice of the defective roadway condition that allegedly caused the injured plaintiff’s accident  … . Xin Zheng Zhan v City of New York, 2021 NY Slip Op 06646, Second Dept 11-24-21

 

THE BATSON CHALLENGE TO THE PROSECUTOR’S EXCLUSION OF A JUROR SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined defendant’s Batson challenge to the prosecutor’s exclusion of a juror should have been granted:

When providing a race-neutral reason for exercising a peremptory challenge as to S.K., the prosecutor stated that S.K. “is a school counselor and . . . when talking about how she would . . . settle disputes amongst two parties, indicated that she wanted to hear from both sides.” Defense counsel disputed this reason, and argued that the prosecutor did not exercise a peremptory challenge as to prospective white juror N.Z., a school counselor who “indicated that she would need to hear both stories” when working through a conflict between two children at work. The court then acknowledged that the prosecutor did not use a peremptory challenge as to N.Z., and that “[s]he is a white female.” The court denied the defendant’s Batson challenge. * * *

The defendant correctly contends that the court erred in finding that the prosecutor’s race-neutral reason for striking S.K. was not a pretext for discrimination. Here, the record demonstrates that the articulated race-neutral reasons for challenging S.K. were not applied equally to exclude a prospective juror, N.Z., who was not black and could have been challenged by the prosecutor for the same reasons. “Although the uneven application of race-neutral factors does not indicate pretext where the prosecution can articulate other legitimate reasons to justify the use of its challenges”… , the prosecution here failed to do so. Under these circumstances, we conclude that the nonracial bases advanced by the prosecutor for challenging S.K. were pretextual and “give[ ] rise to an inference of discriminatory intent” … . People v Johnson, 2021 NY Slip Op 06627, Second Dept 11-24-21

 

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DEFENDANTS DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE WET LOADING DOCK WHERE PLAINTIFF SLIPPED AND FELL; GENERAL OBLIGATIONS LAW 5-322.1 (1) APPLIES ONLY TO NEGLIGENT MAINTENANCE ASSOCIATED WITH THE INTEGRITY OF A BUILDING, NOT TO CLEANING SERVICES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants in this slip and fall case did not demonstrate a lack of constructive notice of the wet loading dock. Therefore defendants’ motion for summary judgment should not have been granted. As to the action against the maintenance company charged with keeping the loading dock clean (ABM), General Obligations Law 5-322.1 (1), which imposes liability for negligent maintenance, applies only to maintenance associated with the integrity of a building, not cleaning services:

The defendants failed to establish, prima facie, that they did not have constructive notice of the allegedly dangerous condition in that they failed to offer evidence as to when the loading dock was last cleaned or inspected before the plaintiff’s fall. A security guard hired by the defendants testified that, while he would typically perform a “security walk around” twice every 30 to 60 minutes, on the day of the accident, he did not pay attention to the area where the plaintiff later fell. Further, the testimony of witnesses employed by the defendants and ABM as to general cleaning and inspection procedures for the loading dock area was insufficient to establish lack of constructive notice … . Skerrett v LIC Site B2 Owner, LLC, 2021 NY Slip Op 06386, Second Dept 11-17-21​

 

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