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THE INSTRUCTION THAT MOTHER NOT “EXPOSE” THE CHILD TO ACTIVITIES NOT IN KEEPING WITH THE CHILD’S FAITH, WHICH IMPLICITLY REQUIRED THAT THE CHILD NOT BE “EXPOSED” TO MOTHER’S LGBTQ IDENTITY, IS NOT ENFORCEABLE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the instruction that mother not “expose” the child to activities not in keeping with religious requirements during periods of her parental access was unenforceable. Mother identified as a member of the LGBTQ community, and considered herself an Orthodox Jew:

… [A] court oversteps constitutional limitations when it purports to compel a parent to adopt a particular religious lifestyle. “… ‘[I]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise'” … . A religious upbringing provision “should not, and cannot, be enforced to the extent that it violates a parent’s legitimate due process right to express oneself and live freely” … . Thus, where the effect of a religious upbringing provision is to compel a parent to himself or herself practice a religion, rather than merely directing the parent to provide the child with a religious upbringing, the provision must be stricken … .

… [T]he challenged restriction does not expressly require the plaintiff to herself comply with the rules of the child’s Orthodox Jewish Chasidic faith during periods of parental access. … [T]he provision in forbidding her to “expose” the child to any activities which violate the child’s Orthodox Jewish Chasidic faith has the same effect … . The only way for the plaintiff to ensure her compliance with the restriction is for her to comply with all religious requirements of the child’s faith during her periods of parental access, lest she “expose” the child to activities not in keeping with those religious requirements. … The defendant [father] was especially concerned that the child would be exposed to people involved in a “gay lifestyle” … . Such restrictions on a parent’s ability to “express oneself and live freely” go beyond requiring a noncustodial parent to support and enable the child’s religious practices, and impermissibly infringe on the noncustodial parent’s rights … . Weichman v Weichman, 2021 NY Slip Op 06211, Second Dept 11-10-21

 

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FAILURE TO COMPLY WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 CAN BE RAISED AT ANY TIME; HERE IT WAS RAISED IN OPPOSITION TO THE MOTION TO CONFIRM THE REFEREE’S REPORT; THE PROOF OF COMPLIANCE WAS INSUFFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court’s grant of summary judgment to the bank in this foreclosure action, noted that the failure to comply with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304 can be raised at any time. Here it was raised in opposition to the bank’s motion to confirm the referee’s report:

… [T]he plaintiff failed to establish that it complied with the requirements of RPAPL 1304. The affidavits of Armenia L. Harrell and La’Shana Farrow, both of whom are officers of Wells Fargo Bank, N.A. (hereinafter Wells Fargo), the servicing agent of the plaintiff, were insufficient to establish that the plaintiff complied with RPAPL 1304. Both Harrell and Farrow attested that they were familiar with Wells Fargo’s records and record-keeping practices. Farrow averred, inter alia, that the plaintiff complied with RPAPL 1304 by mailing the required notices. The record indicates that the 90-day notices appear to have been mailed by ASC (America’s Servicing Company). However, neither Harrell or Farrow attest that they personally mailed the notices or that they were familiar with the mailing practices and procedures of ASC. Therefore, they failed establish proof of standard office practice and procedures designed to ensure that items are properly addressed and mailed … . Moreover, the plaintiff failed to send individually addressed notices to each borrower; rather, the 90-day notices were jointly addressed to the [defendants]. U.S. Bank N.A. v Krakoff, 2021 NY Slip Op 06209, Second Dept 11-10-21

 

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AWARDING A PARENT DECISION-MAKING AUTHORITY FOR ANY MAJOR CHILD-RELATED ISSUE IS TANTAMOUNT TO MODIFYING A CUSTODY ARRANGEMENT TO AWARD SOLE CUSTODY TO THE DECISION-MAKING PARENT; SUPREME COURT SHOULD HAVE HELD A HEARING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the custody arrangement should not have been modified in the absence of a hearing. The court noted that the award of decision-making authority for any major child-related issue on which the parties cannot agree is tantamount to the award of sole custody:

The Supreme Court erred by, in effect, granting, without a hearing, that branch of the defendant’s motion which was to modify the parties’ stipulation of settlement and judgment of divorce so as to award her sole legal custody of the child to the extent of awarding her final decision-making authority as to any major child-related issue about which the parties could not agree, and denying that branch of the plaintiff’s cross motion which was to modify the stipulation of settlement and judgment of divorce so as to award him sole legal custody. “‘[A] court may grant relief that is warranted by the facts plainly appearing on the papers on both sides, if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party'” … . … There can be no question that the award of final decision-making authority is not “dramatically unlike” the relief requested, as decision making is part and parcel to legal custody. … [T]he court erred in granting this award without a hearing. The court’s determination that “neither party has established change in circumstances warranting an award of sole custody to either parent” is incongruous with the court’s determination to award the defendant final decision-making authority. Since it appears that the court believed that the parties made an evidentiary showing of a change in circumstances demonstrating a need for a change of decision-making authority to ensure the child’s best interests, a hearing on that issue was required … .  Trazzera v Trazzera, 2021 NY Slip Op 06208, Second Dept 11-10-21

 

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A NOTICE OF CLAIM IS NOT A PLEADING AND THEREFORE NEED NOT BE ANNEXED TO A SUMMARY JUDGMENT MOTION; ALTHOUGH PLAINTIFF IN THIS LABOR LAW 240 (1) AND 241 (6) ACTION ESTABLISHED HE FELL FROM A SCAFFOLD, HE DID NOT ESTABLISH THE FALL WAS DUE TO INADEQUATE SAFETY EQUIPMENT; HIS MOTION FOR SUMMARY JUDGMENT WAS PROPERLY DENIED ON THAT GROUND (SECOND DEPT).

The Second Department determined plaintiff’s motion for summary judgment in this Labor Law 240 (1) and 2411 (6) scaffold-fall case was properly denied on evidentiary grounds, but it was not properly denied because the notice of claim was not included with the motion papers. Although the pleadings must be annexed to a summary judgment motion, a notice of claim is not a pleading. The motion was properly denied on evidentiary grounds because it was not demonstrated the fall was the result of a failure to provide adequate safety equipment:

While the defendant correctly contends that CPLR 3212(b) requires that motions for summary judgment be supported by a copy of the pleadings, a notice of claim is not a pleading … . …

… [T]he plaintiff relies solely on his General Municipal Law § 50-h hearing testimony and his deposition testimony, which merely established that he fell from a scaffold. The plaintiff failed to address whether there were scaffold rails, possible tie off points for a harness, or some alternative fall protection. Without more, the plaintiff’s testimony that he “moved [his] foot” to the left, causing him to step off of the scaffold and into an “empty space,” and that “there was nothing there because [he] stepped on it and . . . thought it was something solid” are insufficient … . Torres v New York City Hous. Auth., 2021 NY Slip Op 06207, Second Dept 11-10-21

 

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DEFENDANT’S UNLAWFUL IMPRISONMENT CONVICTION MERGED WITH OFFENSES OF WHICH DEFENDANT WAS ACQUITTED; ALTHOUGH THE ISSUE WAS NOT PRESERVED FOR APPEAL, THE CONVICTION WAS VACATED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, applying the merger doctrine and considering the unpreserved issue in the interest of justice, determined the unlawful imprisonment conviction must be vacated:

[Defendant was convicted] of coercion in the first degree, unlawful imprisonment in the first degree, criminal obstruction of breathing or blood circulation, menacing in the second degree, reckless endangerment in the second degree, unlawful fleeing a police officer in a motor vehicle in the third degree, and reckless driving … . * * *

… [U]pon exercising our interest of justice jurisdiction, we conclude that the merger doctrine precludes the defendant’s conviction of unlawful imprisonment in the first degree because the confinement of the complaining witness in the defendant’s car was only the incidental means to the accomplishment of the conduct underlying the counts of which the defendant was acquitted … . Thus, the conviction of unlawful imprisonment in the first degree must be vacated and that count of the indictment dismissed. The defendant’s unpreserved contention that the merger doctrine applies to other offenses for which he was convicted is without merit … . People v Sims, 2021 NY Slip Op 06200, Second Dept 11-10-21

 

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ALTHOUGH DEFENDANT PLED GUILTY TO AN ARMED FELONY, HE WAS AN “ELIGIBLE YOUTH” ENTITLED TO CONSIDERATION WHETHER MITIGATING CIRCUMSTANCES JUSTIFIED AFFORDING HIM YOUTHFUL OFFENDER STATUS (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined Supreme Court should have found defendant to be an “eligible youth” and then considered whether mitigating circumstances warranted youthful offender status:

While the ultimate determination as to whether an “eligible youth” (CPL 720.20[1]) should be afforded youthful offender status must be made “[a]fter receipt of a written report of the investigation and at the time of pronouncing sentence” … , there is no such requirement with respect to the initial determination as to whether the defendant is an “eligible youth” … .

… Supreme Court improvidently exercised its discretion in finding that the defendant was ineligible for youthful offender status. Pursuant to CPL 720.10(3), although the defendant entered a plea of guilty to an armed felony offense in which he was the sole participant, he could be eligible for youthful offender status if there were “mitigating circumstances that bear directly upon the manner in which the crime was committed” … . Such mitigating circumstances include “‘a lack of injury to others or evidence that the defendant did not display a weapon during the crime'” … . Here, there is no indication in the record that the defendant displayed the firearm which was recovered from his backpack, that the defendant caused or threatened any injury to another individual, or that the defendant intended to use the firearm against another individual. Consequently, the court should have determined that the defendant is an “eligible youth,” and thus, proceeded to determine whether the defendant is entitled to youthful offender status pursuant to CPL 720.20(1) … . People v Morris, 2021 NY Slip Op 06195, Second Dept 11-10-21

 

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DEFENDANT WAS DENIED HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BY A DETECTIVE’S TESTIM0NY ABOUT THE SUBSTANCE OF A STATEMENT ALLEGEDLY MADE BY A NONTESTYING ACCOMPLICE; THE ERROR WAS PRESERVED FOR APPEAL BY THE DEFENDANT HIMSELF, NOT DEFENSE COUNSEL, CITING CRAWFORD V WASHINGTON (SECOND DEPT),

The Second Department, reversing the murder conviction and ordering a new trial, in a full-fledged opinion by Justice Chambers, determined a detective’s testimony about what a nontestifying accomplice (Andy Dabydeen) said violated defendant’s right to confront the witnesses against him. Although defense counsel did not object to the detective’s testimony, the defendant himself objected after the fact, citing Crawford v Washington, 541 US 51, which preserved the issue for appeal:

After the defendant continued to deny any involvement in the murder, the detective confronted him by saying that “Andy had told us what had happened.” The detective further testified that, shortly thereafter, upon returning from the bathroom, the defendant reacted to that information by stating that he could not believe that Dabydeen had “snitched” on him. …

… [W]e find that the defendant’s objection—albeit made after the detective had finished testifying and the People had rested—was sufficiently specific to draw the Supreme Court’s attention to the Sixth Amendment Confrontation Clause problems attendant to the People’s use, as part of their case-in-chief, of Dabydeen’s out-of-court testimonial statement directly implicating the defendant in the murder. …

This is not to suggest that the People are precluded from giving some context to the defendant’s statement that Dabydeen had “snitched” on him. We merely emphasize that the People could have done so without disclosing the substance of Dabydeen’s incriminating statement … . People v Lockley, 2021 NY Slip Op 06192, Second Dept 11-10-21

 

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ROBBERY CONVICTIONS WERE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE OF PHYSICAL INJURY; SEVERAL CONVICTIONS, ALTHOUGH SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE, WERE AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF THE WEAKNESS OF THE IDENTIFICATION EVIDENCE (SECOND DEPT).

The Second Department, reversing defendant’s conviction on several counts, determined the evidence the robbery complainants suffered physical injury was legally insufficient, and the weakness of the identification evidence rendered several convictions against the weight of the evidence:

Physical injury is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). Here, both complainants testified at trial that they were hit from behind on the head. Neither of the complainants sought medical attention. One complainant testified that he had pain that lasted two days, and did not testify that he took any medication to treat his pain. The other complainant testified that his pain lasted for about one week and that he treated it with ice and Advil. Under these circumstances, there was insufficient evidence that either of the complainants suffered a physical injury within the meaning of Penal Law § 10.00(9) … . Accordingly, we vacate the defendant’s convictions of robbery in the second degree … .  * * *

Neither of the complainants who were robbed on February 28, 2016, was able to identify the defendant as one of their assailants, and their descriptions of their assailants as young Hispanic/Latino men about five foot six inches tall wearing dark clothing was not sufficiently distinctive to support an inference that the defendant committed the February 28, 2016 crimes. The modus operandi of the crimes committed on February 28, 2016, and February 29, 2016, was likewise not sufficiently distinctive to support an inference that, because the evidence supported an inference that the defendant committed the February 29, 2016 crimes, he also committed the February 28, 2016 crimes. People v Rodriguez, 2021 NY Slip Op 05990, Second Dept 11-3-21

 

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THE PRE-ANSWER, PRE-DISCOVERY MOTION TO DISMISS SHOULD NOT HAVE BEEN CONVERTED TO A SUMMARY JUDGMENT MOTION; QUESTIONS OF FACT ABOUT WHETHER THERE WAS A DE FACTO MERGER OF TWO CORPORATIONS; QUESTION OF FACT WHETHER PART PERFORMANCE BY INACTION SATISFIED THE STATUTE OF FRAUDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined (1) the pre-answer, pre-discovery motion to dismiss should not have been converted to a summary judgment motion; (2) there were questions of fact about whether there was a de facto merger of two defendant corporations; and (3) there was a question of fact whether the breach of contract action was barred by the statute of frauds (part performance). The “de facto merger” and “part performance” discussions are substantive and too detailed to summarize here. The Second Department noted that even inaction will satisfy part performance of a contract when inaction is a term of the oral agreement:

Supreme Court erred in converting the motion to dismiss to one for summary judgment (see CPLR 3211[c] … ). The plaintiff objected to this procedure on the ground that he had not received any discovery, and no preliminary conference had taken place due to the pendency of the motion to dismiss, which was made only one month after this action was commenced. Indeed, a motion for summary judgment is premature when a party had no reasonable opportunity to conduct discovery, and discovery may result in disclosure of evidence relevant to the causes of action asserted in the complaint (see CPLR 3212[f] … ). Here, issue was not yet joined and there had been no opportunity to engage in discovery regarding the plaintiff’s allegations of successor liability and fraud with respect to the apparent transformation of [defendant] Labs into [defendant] Diagnostics. Therefore, converting the motion to dismiss into a motion for summary judgment was premature.

… The defendants’ evidence did not establish as a matter of law that Diagnostics was not the de facto continuation of Labs … . * * *

Part performance in the form of inaction may … suffice to invoke the doctrine, if inaction is pleaded as a term of the oral agreement and alleged to be unequivocally referable to the oral agreement, and the element of detrimental reliance is present … . … [D]efendants failed to demonstrate … that the plaintiff did not partially perform by refraining from seeking to confirm the arbitration award, thereby rendering the statute of frauds inapplicable. Menche v CDx Diagnostics, Inc., 2021 NY Slip Op 05964, Second Dept 11-3-21

 

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PLAINTIFF’S DECEDENT, A PATIENT IN DEFENDANT REHAB FACILITY, FELL WHEN WALKING UNATTENDED BACK TO HIS BED FROM THE BATHROOM; PLAINTIFF ALLEGED THE FAILURE TO PROVIDE A BED ALARM WAS A PROXIMATE CAUSE; THAT CAUSE OF ACTION SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE; DEFENDANT’S SUMMARY JUDGMENT MOTION WAS PROPERLY GRANTED BECAUSE PLAINTIFF DID NOT SUBMIT EXPERT EVIDENCE IN OPPOSITION (WHICH WOULD NOT HAVE BEEN REQUIRED IF THE CAUSE OF ACTION SOUNDED IN NEGLIGENCE, AS THE MOTION COURT HAD HELD) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the cause of action at issue sounded in medical malpractice, not negligence. Therefore, to avoid summary judgment, plaintiff was required to submit expert opinion evidence in opposition. Plaintiff’s decedent, a patient in a rehabilitation facility (defendant St. James), fell when walking unattended after going to the bathroom. Plaintiff alleged defendant’s failure to provide decedent with a bed alarm was a proximate cause of the fall. The motion court held that cause of action sounded in negligence and raised a jury question:

The essence of the allegation that St. James improperly failed to provide the decedent with a bed alarm which would have prevented his fall is that it improperly assessed his condition and the degree of supervision necessary to prevent him from falling, which sounds in medical malpractice … . Thus, with respect to this allegation, St. James bore the initial burden of establishing either that there was no departure from good and accepted medical practice or that any departure was not a proximate cause of the decedent’s injuries … .

In response to St. James’ prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact by submitting an expert opinion that specifically addressed the defense expert’s assertions … . Accordingly, the Supreme Court should have granted that branch of St. James’ motion which was for summary judgment dismissing so much of the complaint as alleged a failure to provide the decedent with a bed alarm. Losak v St. James Rehabilitation & Healthcare Ctr., 2021 NY Slip Op 05961, Second Dept 11-3-21

 

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