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THE APPLICABILITY OF THE CHILD SUPPORT STANDARDS ACT (CSSA) WAS NOT ADEQUATELY WAIVED IN THE STIPULATION OF SETTLEMENT; THE CHILD SUPPORT PROVISIONS OF THE STIPULATION SHOULD HAVE BEEN VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the child support provisions of the stipulation of settlement should have been vacated because the applicability of Child Support Standards Act (CSSA) was not waived:

Parties to a separation agreement are free to “opt out” of the provisions of the Child Support Standards Act (Domestic Relations Law § 240[1-b] [hereinafter the CSSA]) “so long as their decision is made knowingly”… . To ensure that waivers of the statutory provisions of the CSSA are truly knowingly made, Domestic Relations Law § 240(1-b)(h) requires that stipulations of settlement include provisions: “(1) stating that the parties have been advised of the provisions of the CSSA; (2) stating that the basic child support provisions of the CSSA would presumptively result in the determination of the correct amount of child support to be awarded; (3) stating what the amount of basic child support would have been if calculated pursuant to the CSSA, if the parties’ stipulation or agreement deviates from the basic child support obligation; and (4) setting forth the parties’ reason or reasons for deviating from the CSSA calculation, if they have chosen to deviate” … . “The policy reasons underlying the requirement that waivers must be knowingly made are so strong that agreements that do not comply with the strictures of the CSSA are invalid and unenforceable, at least to the extent of the child support provisions set forth therein” … .

Here, the child support provisions in the parties’ stipulation of settlement did not include any of the foregoing recitals, including a calculation of basic child support pursuant to the CSSA. Haik v Haik, 2021 NY Slip Op 04599, Second Dept 8-4-21

 

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PLAINTIFF’S EXPERT’S AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION WAS NOT CONCLUSORY OR SPECULATIVE; THE AFFIDAVIT DEMONSTRATED THE EXPERT WAS QUALIFIED TO RENDER AN OPINION ON PROPER WOUND CARE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert’s affidavit should not have been rejected on the ground the expert was not qualified to give an opinion on proper wound care, or on the ground the affidavit was conclusory:

… [T]he plaintiff raised a triable issue of fact through the expert affirmation of Craig A. Nachbauer, a thoracic surgeon and Medical Director of the University of Vermont Health Network-CVPH Wound Center, who opined within a reasonable degree of medical certainty that the respondents departed from the accepted standard of care and that such departure resulted in decubitus ulcers and the disfigurement of the plaintiff’s knees … . … [T]he plaintiff’s expert raised a triable issue of fact as to whether the respondents failed to take appropriate measures to prevent the decubitus ulcers … , including allowing him to remain prone without turning or repositioning him for over 90 hours, without the use of pillows, foam, and gel pads to protect his hips or knees … .

… [T]he plaintiff’s expert established that his qualifications were sufficient to render an opinion as to the propriety of the wound care provided to the plaintiff in 2008 … . … [T]he plaintiff’s expert averred … that he had practiced surgery and wound care for approximately 30 years and that by virtue of his training and experience, he was fully familiar with the standards of accepted practice in the field of wound care, and with the responsibilities of hospital staff and physicians in the prevention and treatment of pressure/decubitus ulcers, as they existed in 2008. Cerrone v North Shore-Long Is. Jewish Health Sys., Inc., 2021 NY Slip Op 04593, Second Dept 8-4-21

 

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THE MAJORITY DETERMINED DEFENDANT’S ARGUMENT HIS GUILTY PLEA WAS NOT VOLUNTARILY ENTERED WAS NOT PRESERVED; THE DISSENT ARGUED DEFENDANT WAS NOT ADEQUATELY INFORMED OF HIS BOYKIN RIGHTS AND THE CONVICTION SHOULD BE REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, over a dissent, determined defendant’s argument that his guilty plea was not knowingly, voluntarily and intelligently entered was rejected by the majority as unpreserved. The dissent agreed the issue was not preserved but argued the judge’s failure to adequately inform defendant of the Boykin rights warranted reversal in the interest of justice:

From the Dissent:

Mindful that County Court was not required “to specifically enumerate all the rights to which . . . defendant was entitled”.. , as defendant notes, the court nonetheless failed to explain, let alone refer to, any of the constitutional trial-related rights that he would forfeit by pleading guilty … . Rather, at the plea proceeding, the court focused almost exclusively on defendant’s waiver of an intoxication defense, as well as any other potential defenses, and whether defendant understood the benefits and risks of going forward with a trial. The record also fails to disclose that the court “obtain[ed] any assurance that defendant had discussed with counsel the trial-related rights that are automatically forfeited by pleading guilty or the constitutional implications of a guilty plea” … . People v Simpson, 2021 NY Slip Op 04579, Third Dept 7-28-21

 

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DEFENDANTS’ DEFAULT IN MAKING MORTGAGE PAYMENTS WAS NOT SUPPORTED BY THE SUBMISSION OF THE RELEVANT BUSINESS RECORDS; THEREFORE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the proof of defendants’ default in mortgage payments was based upon business records which were not produced:

… [T]he plaintiff failed to establish, prima facie, the defendants’ default in payment by submitting the affidavit of Haley Pope, the Foreclosure Manager for its loan servicer. Pope did not specifically state that she had personal knowledge of the defendants’ default in payment. To the extent Pope relied on her review of business records, she did not identify which records she relied on to assert a default in payment, or attach any business records to her affidavit to substantiate the alleged default in payment. Thus, the plaintiff failed to meet its prima facie burden by relying on Pope’s conclusory assertion that the defendants defaulted in payment, which was not supported by a factual basis … . Wilmington Sav. Fund Socy., FSB v McLaughlin, 2021 NY Slip Op 04576, Second Dept 7-28-21

 

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ALTHOUGH DEFENDANT WAS IN DEFAULT IN THIS FORECLOSURE ACTION, SHE STILL CAN CONTEST THE AMOUNT OWED; THE REFEREE’S REPORT HERE WAS REJECTED BECAUSE IT WAS BASED IN PART ON UNPRODUCED BUSINESS RECORDS AND THE MATTER WAS REMITTED FOR RECALCULATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should have been rejected because it was based in part on business records which were not produced. Although defendant was in default, she still could contest the amount owed:

The fact that the defendant defaulted in appearing did not mean that she was precluded from contesting the amount owed … . The Supreme Court should not have confirmed the referee’s report because the referee’s recommendation that the plaintiff be awarded tax and hazard insurance disbursements was premised upon unproduced business records … . Consequently, the referee’s findings with respect to the total amount due upon the mortgage were not substantially supported by the record … . Accordingly, we reject the referee’s report and remit the matter to the Supreme Court, Kings County, for a new report computing the amount due to the plaintiff, followed by further proceedings in accordance with CPLR 4403 and the entry of an appropriate amended judgment thereafter. Wells Fargo Bank, N.A. v Campbell, 2021 NY Slip Op 04574, Second Dept 7-28-21

 

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IN THIS DIVORCE ACTION SUPREME COURT ABUSED ITS DISCRETION IN IMPUTING TOO MUCH INCOME TO AND AWARDING TOO LITTLE MAINTENANCE TO PLAINTIFF WIFE; IN ADDITION DEFENDANT SHOULD NOT HAVE BEEN AWARDED 50% OF THE VALUE OF PLAINTIFF’S BUSINESS AND THE COURT SHOULD NOT HAVE ORDERED A POSTTRIAL VALUATION OF THE BUSINESS (SECOND DEPT).

The Second Department, reversing Supreme Court in this divorce action, determined the imputation of income to plaintiff, the amount of maintenance awarded to plaintiff were not supported by the evidence. In addition the award of 50% of plaintiff’s business to defendant and the ordering of a posttrial valuation of the business were deemed improper:

… [T]he Supreme Court improvidently exercised its discretion by imputing an annual income of $80,000 to the plaintiff when calculating her maintenance award. During this 28-year marriage, notwithstanding her college degree and various certifications, the plaintiff, who was 55 years old at the time of trial, had been a stay at home mother and homemaker for almost 10 years and had never earned more than $19 per hour from employment upon returning to work outside the home, while the defendant was the primary wage earner for the family and earned a substantial income. Moreover, the plaintiff’s business was not a financial success. …

“In cases such as this one, commenced prior to January 23, 2016 …, factors to be considered are, among others, the standard of living of the parties, the income and property of the parties, the distribution of property, the duration of the marriage, the health of the parties, the present and future earning capacity of the parties, the ability of the party seeking maintenance to become self-supporting, the reduced or lost earning capacity of the party seeking maintenance, and the presence of children of the marriage in the respective homes of the parties” … . Weiss v Nelson, 2021 NY Slip Op 04573, Second Dept 7-28-21

 

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DEFENDANT TORTIOUSLY INTERFERED WITH PLAINTIFF’S CONTRACT BUT DID NOT TORTIOUSLY INTERFERE WITH PLAINTIFF’S BUSINESS RELATIONS OR ENGAGE IN UNFAIR COMPETITION; THE ELEMENTS OF THE THREE CAUSES OF ACTION EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant was properly found to have tortiously interfered with plaintiff’s contract but should not have been found to have tortiously interfered with plaintiff’s business relations or to have engaged in unfair competition. The elements of each cause of action are clearly explained in the decision. With respect to tortious interference with business relations, the court wrote:

“While a cause of action for interference with prospective contract or business relationship is closely akin to one for tortious interference with contract, the former requires proof of more culpable conduct on the part of defendant” … . “This standard is met where the interference with prospective business relations was accomplished by wrongful means or where the offending party acted for the sole purpose of harming the other party” … . “Wrongful means” has been defined to include “physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure” … . “[A]s a general rule, the defendant’s conduct must amount to a crime or an independent tort. Conduct that is not criminal or tortious will generally be ‘lawful’ and thus insufficiently ‘culpable’ to create liability for interference with prospective contracts or other nonbinding economic relations” … . In addition, conduct which is motivated by economic self-interest cannot be characterized as solely malicious … . Stuart’s, LLC v Edelman, 2021 NY Slip Op 04569, Second Dept 7-29-21

 

PLAINTIFF’S FALL FROM A LADDER OCCURRED DURING ROUTINE MAINTENANCE AND THEREFORE WAS NOT ACTIONABLE PURSUANT TO LABOR LAW 240 (1) (SECOND DEPT).

The Second Department determined plaintiff’s Labor Law 240 (1) cause of action was properly dismissed because plaintiff was engaged in routine maintenance at the time of his fall from a ladder:

“Generally, courts have held that work constitutes routine maintenance where the work involves ‘replacing components that require replacement in the course of normal wear and tear'”  … .

… [T]he defendants established … that the replacement of the condenser fan motor, which, according to the deposition testimony of the injured plaintiff’s employer, weighed approximately 1½ pounds and was the kind of part that required replacement “all the time,” constituted routine maintenance and not repairing, or any of the other enumerated activities under Labor Law § 240(1) … . “The work here involved replacing [a] component[ ] that require[s] replacement in the course of normal wear and tear” … . Stockton v H&E Biffer Enters. No. 2, LLC, 2021 NY Slip Op 04568, Second Dept 7-28-21

 

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IN THIS RESENTENCING PROCEEDING, THE JUDGE SHOULD HAVE CONSIDERED DEFENDANT’S CONDUCT SINCE THE ORIGINAL SENTENCE WAS IMPOSED IN 1998-99 AND SHOULD HAVE ORDERED AN UPDATED PRESENTENCE REPORT WHICH INCLUDED AN INTERVIEW WITH DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court in this resentencing proceeding, determined the sentencing judge could consider defendant’s conduct after the original sentence was imposed and should have ordered an updated presentence report, including an interview with the defendant. Defendant had been sentenced in 1998 and 1999 to 125 years of imprisonment. In 2019 defendant moved to set aside his sentence on the ground that is was vindictive and the People consented to setting the sentence aside:

The Supreme Court erred in determining that it had no discretion to consider the defendant’s conduct after the original sentence was imposed. In People v Kuey (83 NY2d 278, 282), the Court of Appeals noted that when a defendant comes before the court for resentencing, “the proper focus of the inquiry is on the defendant’s record prior to the commission of the crime.” However, the Court of Appeals did not purport to limit the sentencing court’s discretion. Indeed, in Kuey, the Court of Appeals further noted that the defendant was “afforded the opportunity to supply information about his subsequent conduct,” and that the court had discretion to order an updated presentence report regarding the defendant’s subsequent conduct, if it determined that such was necessary … .

Critically, unlike the resentencing proceeding in Kuey, the resentencing proceeding here was held because the original sentence was claimed to be vindictive, which is not merely a technical defect in the original sentence … , but implicates the original sentencing court’s failure to have observed sentencing principles before imposing sentence. Given the context under which the resentence was directed, the resentencing court must exercise discretion and give due consideration “to, among other things, the crime charged, the particular circumstances of the individual before the [resentencing] court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence” … . People v Garcia, 2021 NY Slip Op 04558, Second Dept 7-28-21

 

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ALTHOUGH NO OBJECTIONS WERE MADE TO THE PROSECUTOR’S NUMEROUS INAPPROPRIATE REMARKS, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE AND A NEW TRIAL WAS ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined prosecutorial misconduct deprived defendant of a fair trial. The errors were not preserved by objections, but the appeal was considered in the interest of justice. The prosecutor’s remarks are detailed in the decision and are too numerous to include here:

The prosecutor denigrated any possible defense, invoked the jury’s sympathy for the complainants based upon irrelevant evidence, vouched for the credibility of the People’s witnesses, and misstated the law on circumstantial evidence … . People v Beck, 2021 NY Slip Op 04556, Second Dept 7-28-21

 

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