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DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL AT THE SORA RISK-LEVEL ASSESSMENT PROCEEDING IN A CHILD PORNOGRAPHY CASE; COUNSEL MADE AN ARGUMENT WHICH WAS EXPRESSLY REJECTED BY THE COURT OF APPEALS AND THE 2ND DEPARTMENT (SECOND DEPT).

The Second Department determined defense counsel was ineffective the SORA risk-level assessment proceeding:

The defendant was convicted, in federal court, of possession of child pornography … . After a hearing to determine his level of risk pursuant to the Sex Offender Registration Act … , at which the defendant was assessed 30 points under risk factor 3 (number of victims), 30 points under risk factor 5 (age of victims), and 20 points under risk factor 7 (victims were strangers), the defendant was designated a level two sex offender. …

A defendant has a right to the effective assistance of counsel in a SORA proceeding … . Here, the only argument that defense counsel made at the hearing—challenging the assessment of points under risk factors 3 and 7 in light of the nature of the offense—had been soundly rejected by the Court of Appeals … and this Court … . Under the particular circumstances of this case, defense counsel’s failure to apply, instead, for a downward departure on the basis of an overassessment of risk level due to application of points under risk factors 3 and 7 … , demonstrated a misunderstanding of the relevant law and amounted to ineffective assistance of counsel … . People v Bertrand, 2021 NY Slip Op 03338, Second Dept 5-25-21

 

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THERE WAS NO EVIDENCE DEFENDANT KNEW THE COMPLAINANT WAS A 14-YEAR-OLD RUNAWAY WHEN SHE STAYED AT HIS HOUSE; THE EVIDENCE OF KIDNAPPING WAS LEGALLY INSUFFICIENT (SECOND DEPT).

The Second Department, reversing defendant’s kidnapping conviction, determined the evidence was legally insufficient:

“A person is guilty of kidnapping in the second degree when he or she] abducts another person” … . “‘Abduct’ means to restrain a person with intent to prevent his [or her] liberation by . . . (a) secreting or holding him [or her] in a place where he [or she] is not likely to be found” … . “‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such [a] manner as to interfere substantially with his [or her] liberty by moving him [or her] from one place to another, or by confining him [or her] either in the place where the restriction commences or in a place to which he [or she] has been moved, without consent and with knowledge that the restriction is unlawful”… . “A person is so moved or confined ‘without consent’ when such is accomplished by . . . any means whatever, including acquiescence of the victim, if he [or she] is a child less than sixteen years old . . . and the parent, guardian or other person or institution having lawful control or custody of him [or her] has not acquiesced in the movement or confinement” … .  [T]he evidence does not establish that the defendant had “knowledge that the restriction [of the complainant’s movements was] unlawful” … , as the record fails to establish that the defendant knew that the complainant was under the age of 16 or that he knew she had run away and that her parents were looking for her, during a period of three days to one week that she was staying at his house … . Moreover, the evidence also failed to establish that the defendant intentionally restricted the complainant’s movements by confining her … , or that he intended to prevent her liberation by “secreting or holding [her] in a place where [she was] not likely to be found” … . Without establishing that the defendant knew that the complainant was a 14-year-old runaway, the People failed to establish that the defendant possessed the requisite intent to restrict her movements by confining her, or to prevent her liberation by keeping her hidden from her parents in a place where she was unlikely to be found. People v Legrand, 2021 NY Slip Op 03333, Second Dept 5-26-21

 

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FAMILY COURT PROPERLY CONSIDERED THE BEST INTERESTS OF THE TWO CHILDREN IN ITS PLACEMENT DECISION; STRONG TWO-JUSTICE DISSENT (SECOND DEPT).

The Second Department, over an extensive two-justice dissent, determined Family Court properly considered the best interests of two children in deciding where the children should be place. The dissent disagreed. The decision is too detailed and fact-specific to fairly summarize here:

At its essence, this appeal presents a circumstance where everyone involved—the foster mother, the godmother, the attorney for the child, ACS, and the Family Court—agreed that the child and his half-sibling should be kept together. The court found that both the godmother’s home and the foster mother’s home were entirely suitable, but in choosing between the two, properly noted that the half-sibling’s father did not consent to the half-sibling being placed anywhere except with the godmother. The court’s consideration of that fact did not mean that the child’s best interests were not globally considered, but was instead a relevant and necessary fact that the court needed to take into account in determining how to best promote the child’s best interests and the obvious benefit to him of keeping the two half-siblings together as each other’s sole living, known, biological relatives. It was not error for the court to do so, and in fact, the court would have been derelict in its duties had it failed to do so. Matter of Adonnis M. (Kenyetta M.), 2021 NY Slip Op 03322, Second Dept 5-26-21

 

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FAMILY COURT SHOULD NOT HAVE ORDERED THE PARTIES TO EQUALLY SHARE THE COSTS OF FATHER’S SUPERVISED VISITATION WITHOUT EVALUATING THE PARTIES’ FINANCES (SECOND DEPT).

The Second Department determined Family Court properly found father had committed the family offense of harassment and properly ordered therapeutic supervised parental access for father. However, Family Court should not have order the parties to equally share the expense of supervised parental access without evaluating the parties’ ability  to pay:

The Family Court should not have directed the parties to equally share the costs of the father’s supervised parental access, without evaluating the parties’ “economic realities,” including the father’s ability to pay and the actual cost of each visit … . Accordingly, we remit the matter to the Family Court, Orange Country, for a hearing to resolve those issues, and a determination thereafter regarding the parties’ respective shares of the costs for the father’s supervised therapeutic parental access. Matter of Livesey v Gulick, 2021 NY Slip Op 03321, Second Dept 5-26-21

 

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FATHER’S ABILITY TO BRING FUTURE PETITIONS FOR CUSTODY SHOULD NOT HAVE BEEN CONDITIONED UPON HIS UNDERGOING TREATMENT OR COUNSELING (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s ability to bring future custody petitions should not have been condition upon father’s undergoing counseling or treatment:

A court deciding a custody proceeding may “direct a party to submit to counseling or treatment as a component of a [parental access] or custody order” … . “A court may not, however, order that a parent undergo counseling or treatment as a condition of future [parental access] or reapplication for [parental access] rights” … . Here, the Family Court erred in conditioning the filing of any future petitions by the father to modify parental access upon his successful completion of an anger management class and a negative drug test, and we modify the order so as to eliminate that condition. Matter of Hardy v Hardy. 2021 NY Slip Op 03320. Second Dept 5-26-21

 

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ALTHOUGH PLAINTIFF’S EXPERT’S THEORY IN THIS MEDICAL MALPRACTICE CASE WAS NOT SUPPORTED BY MEDICAL LITERATURE, THE THEORY HAD AN OBJECTIVE BASIS AND SHOULD NOT HAVE BEEN PRECLUDED AFTER A FRYE HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence offered by plaintiff’s treating physician (Paget) as expert opinion should not have been precluded after a Frye hearing, despite the absence of medical literature on the topic. Plaintiff alleged a contrast agent was negligently injected into the tissue of her arm instead of a vein:

The plaintiff’s expert witness disclosure indicated that Paget was expected to testify that the defendants deviated from good and accepted medical practice in allowing gadolinium, a toxin, to leak into and remain inside the plaintiff’s arm in high concentration, which caused the plaintiff to develop injuries including a progressive fibrosing disease. … * * *

Although Paget did not rely upon medical literature unequivocally establishing that the administration of gadolinium into tissue has a causal link to the development of a systemic fibrosing disease in the absence of renal insufficiency, the plaintiff established that Paget’s theory “had an objective basis and was founded upon far more than theoretical speculation or a scientific hunch”… . The absence of medical literature directly on point pertains to the weight to be afforded to Paget’s testimony, but does not preclude its admissibility … . Farrell v Lichtenberger, 2021 NY Slip Op 03305, Second Dept 5-26-21

 

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PLAINTIFF’S ACTION FOR PRIVATE NUISANCE ALLEGING DEFENDANTS’ AIR CONDITIONING UNIT IS TOO LOUD SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the private nuisance cause of action should not have been dismissed. Plaintiff alleged defendants’ air conditioning unit made too much noise:

The elements of a private nuisance cause of action are: “(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failure to act” … . “[E]xcept for the issue of whether the plaintiff has the requisite property interest, each of the other elements is a question for the jury, unless the evidence is undisputed” … .

Here, the plaintiff stated a cause of action to recover damages for private nuisance by alleging that the defendants’ air conditioning and condenser units generated a noise level exceeding that permitted by the Code of the Town of Hempstead … , which interfered with the plaintiff’s use and enjoyment of his bedroom, garden, and patio, and diminished his property value … . Curry v Matranga, 2021 NY Slip Op 03304, Second Dept 5-26-21

 

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THE DIFFERING CRITERIA FOR GENDER DISCRIMINATION, HOSTILE WORK ENVIRONMENT AND RETALIATION UNDER THE NEW YORK STATE AND NEW YORK CITY HUMAN RIGHTS LAW CAREFULLY EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, carefully laid out the criteria for gender diiscrimination, hostile work environment and retaliation under the NYS Human Rights Law (NYSHRL) and the NYC Human Rights Law (NYCHRL). The gender discriimination claims should have been dismissed, but the hostile work environment and retaliation claims properly survived summary judgment. The decision is too detailed to fairly summarize here and should be consulted for its explanation of the differing criteria under the NYS and NYC Human Rights Law. With respect to gender discrimination, the court wrote:

[Under the NYSHRL] a triable issue of fact regarding the falsity of the appellants’ proffered reasons for the employment action is not enough; there must be evidence “both that the reason was false, and that discrimination was the real reason” … . Here, the parties’ evidentiary submissions reveal no evidence that gender discrimination was the real reason for the challenged employment actions. …

… [A]n action alleging discrimination in violation of the NYCHRL “‘must be analyzed under both the familiar framework of McDonnell Douglas Corp. v Green (411 US 792 [1973]) and under the newer mixed motive framework, which imposes a lesser burden on a plaintiff opposing such a motion'” (Sanderson-Burgess v City of New York, 173 AD3d 1233, 1235 …). “‘Summary judgment dismissing a claim under the NYCHRL should be granted only if no jury could find [the] defendant liable under any of the evidentiary routes—McDonnell Douglas, mixed motive, direct evidence, or some combination thereof'” … . Here, the plaintiff … failed to raise a triable issue of fact as to whether the conduct was a pretext to mask a discriminatory intent or was in part motivated by discrimination … . Bilitch v New York City Health & Hosps. Corp., 2021 NY Slip Op 03300, Second Dept 5-26-21

 

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FAILURE TO TAKE TIMELY STEPS TO SETTLE THE ORDER IN THIS FORECLOSURE ACTION RENDERED THE ACTION ABANDONED PURSUANT TO 22 NYCRR 202.48 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure action was abandoned because no steps were taken to settle the order:

“Proposed orders . . . with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted” (22 NYCRR 202.48[a]). “Failure to submit the order . . . timely shall be deemed an abandonment of the motion or action, unless for good cause shown” (22 NYCRR 202.48[b]). These provisions are not applicable where the decision does not explicitly direct that the proposed judgment or order be settled or submitted for signature (see Funk v Barry, 89 NY2d 364). However, the direction to “settle” order “ordinarily entails more complicated relief,” and therefore “contemplates notice to the opponent so that both parties may either agree on a draft or prepare counter proposals to be settled before the court” (id. at 367 …). Here, Nationstar failed to timely settle the order pursuant to the requirements of 22 NYCRR 202.48(a), and did not show good cause for its failure to do so … . Accordingly, the Supreme Court should have granted that branch of the defendant’s motion which was pursuant to 22 NYCRR 202.48 to deem, as abandoned, Nationstar’s motion. Aurora Loan Servs., LLC v Yogev, 2021 NY Slip Op 03297, Second Dept 5-26-21

 

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THE BANK IN THIS FORECLOSURE ACTION DID NOT PROVIDE SUFFICIENT PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 AND THE MORTGAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank in this foreclosure action did not submit sufficient proof of compliance with the notice requirements of RPAPL 1304 and the mortgage:

Although the plaintiff submitted copies of the 90-day notices purportedly sent to [defendant] Jimenez, the plaintiff failed to demonstrate, prima facie, that the notices were actually mailed, either through an affidavit of service, other proof of mailing by the post office, or evidence of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure … . The unsubstantiated and conclusory assertion in an affidavit of a representative of the plaintiff’s loan servicer that the 90-day notice was sent in accordance with RPAPL 1304 is insufficient to establish that the notice was actually mailed to Jimenez by first-class and certified mail … . Moreover, the affiant based her assertions upon her review of unspecified business records without attaching any such business records to her affidavit … . “It is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted” … .

Similarly, the plaintiff failed to demonstrate, prima facie, that it complied with the notice of default provisions of the consolidated mortgage, which required the plaintiff to send a notice of default to Jimenez at the notice address by first-class mail and to provide a 30-day cure period. Copies of the notice without proof of mailing, along with the affidavit of a representative of the loan servicer averring, based upon her review of unspecified business records which were not attached to the affidavit, that such a notice of default was sent on an unspecified date, was insufficient to satisfy the plaintiff’s prima facie burden … .  Wilmington Trust, N.A. v Jimenez, 2021 NY Slip Op 03212, Second Dept 5-19-21

 

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