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IN A FORECLOSURE ACTION A DISMISSAL FOR LACK OF STANDING IS NOT A DISMISSAL ON THE MERITS RE: RES JUDICATA; A SECOND DISCONTINUANCE WHICH IS NOT ON NOTICE IS NOT A DISCONTINUANCE WITH PREJUDICE RE: CPLR 3217 (C) (SECOND DEPT).

The Second Department noted that a foreclosure action dismissed for lack of standing is not a dismissal on the merits. The court further noted that a second discontinuance is not with prejudice, i.e., on the merits, unless it is on notice:

“‘Under the doctrine of res judicata, a final disposition on the merits bars litigation between the same parties of all other claims arising out of the same transaction or out of the same or related facts, even if based upon a different theory involving materially different elements of proof'” … . However, “a dismissal premised on lack of standing is not a dismissal on the merits for res judicata purposes” … .. Here, the instant action was not barred by the doctrine of res judicata because the 2014 action was dismissed for, inter alia, lack of standing, and that does not qualify as a dismissal on the merits for res judicata purposes … .

CPLR 3217(c) provides that “[u]nless otherwise stated in the notice, stipulation or order of discontinuance, the discontinuance is without prejudice, except that a discontinuance by means of notice operates as an adjudication on the merits if the party has once before discontinued by any method an action based on or including the same cause of action.” The dismissal of the second action after a previous discontinuance only operates as an adjudication on the merits if that second discontinuance is achieved by means of notice … . Here, after the 2010 action was discontinued by means of notice, the 2014 action was dismissed after the defendant’s motion to dismiss was granted. Since the 2014 action was not discontinued by means of notice, CPLR 3217(c) is inapplicable to this instant action. US Bank Trust, N.A. v Loring, 2021 NY Slip Op 02559, Second Dept 4-28-21

 

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ALTHOUGH THE COMPLAINT STATED CAUSES OF ACTION FOR NEGLIGENT MISREPRESENTATION AND FRAUD, THE JUDICIARY LAW 487 CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE IT WAS NOT ALLEGED THE DECEIT OCCURRED DURING A JUDICIAL PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant-attorney’s motion to dismiss the Judiciary Law 487 cause of action should have been granted because the deceit or fraud was not alleged to have occurred during a judicial proceeding. Plaintiff alleged the misrepresentation concerned a guaranty for payment on a note related to the sale of plaintiff’s business:

Supreme Court should have granted that branch of the defendant’s motion which was to dismiss the fourth cause of action. “[A] Judiciary Law § 487 cause of action requires that the alleged deceit occurred during a judicial proceeding in which the plaintiff was a party” … . Here, the complaint failed to allege that the deceit occurred during a judicial proceeding or before any court … . Pszeniczny v Horn, 2021 NY Slip Op 02553, Second Dept 4-28-21

 

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MORTGAGES ISSUED BY NYS FEDERAL CREDIT UNIONS ARE NOT EXEMPT FROM NYS MORTGAGE RECORDING TAX (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that mortgages issued by NYS federal credit unions are not exempt from the NYS mortgage recording tax:

This precise question was decided in Hudson Val. Fed. Credit Union v New York State Dept. of Taxation & Fin. (20 NY3d 1, 13), where the Court of Appeals held that, based on principles of statutory interpretation and the legislative history of the Federal Credit Union Act, mortgages issued by New York State federal credit unions are not exempt from the imposition of the New York State mortgage recording tax. This Court is bound by the Court of Appeals’ decision in Hudson Val. Fed. Credit Union, despite conflicting federal intermediate court decisions which post-date it (see People v Jackson, 46 AD3d 1110). O’Donnell & Sons, Inc. v New York State Dept. of Taxation & Fin., 2021 NY Slip Op 02535, Second Dept 4-28-21

 

PLAINTIFF, A SWIMMING OFFICIAL, SLIPPED ON WATER ON A POOL DECK AT AN INDOOR SWIMMING FACILITY; THE WATER ON THE POOL DECK CAME FROM AN OVERHEAD DEHUMIDIFICATION SYSTEM, NOT FROM SPLASHES FROM THE POOL; THE WATER WAS NOT NECESSARILY INCIDENTAL TO THE USE OF THE POOL AND THE ASSUMPTION OF THE RISK DOCTRINE DID NOT APPLY; THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT WAS PROPERLY DENIED (SECOND DEPT). ​

The Second Department determined defendant’s motion for summary judgment in this slip and fall case was properly denied. Plaintiff, a swimming official, slipped on water on a pool deck at an indoor swimming facility. The water did not come from the pool, but rather was condensation from a dehumidification system:

… [T]he defendant cannot obtain summary judgment by relying on the cases in which courts have dismissed personal injury claims arising out of slipping on water around pools based on the reasoning that such water was necessarily incidental to the use of the area … . …

[Re: assumption of the risk:] … [P]articipants are not deemed to have assumed risks that are concealed or unreasonably increased over and above the usual dangers that are inherent in the sport” … .

Here, the hazardous condition of an indoor pool deck wet from condensation that had formed and dripped was not open and obvious and created a risk beyond that inherent in the sport of swimming in an indoor swimming facility … .. Further, “the doctrine of assumption of risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises” … . O’Brien v Asphalt Green, Inc., 2021 NY Slip Op 02534, Second Dept 4-28-21

 

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THE EVIDENCE DEMONSTRATED DEFENDANT DID NOT STOP FOR A RED LIGHT AND STRUCK PLAINTIFF’S CAR AS PLAINTIFF WAS PASSING THROUGH THE INTERSECTION; FAILING TO STOP FOR A RED LIGHT VIOLATES THE VEHICLE AND TRAFFIC LAW AND CONSTITUTES NEGLIGENCE PER SE; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the evidence that defendant Glennon ran a red light and struck plaintiff’s car as plaintiff was passing through the intersection warranted summary judgment in plaintiff’s favor. Running a red light is a violation of the Vehicle and Traffic Law which constitutes negligence per se:

“[A] violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se” … . Pursuant to Vehicle and Traffic Law § 1111(d)(1), a driver when “facing a steady circular red signal, . . . shall stop at a clearly marked stop line, but if none, then shall stop before entering the crosswalk on the near side of the intersection, or in the event there is no crosswalk, at the point nearest the intersecting roadway where the driver has a view of the approaching traffic on the intersecting roadway before entering the intersection.” …

[Steedman, a witness, testified the] first two vehicles passed through the intersection without incident, but then the plaintiff, who was driving the third vehicle, was struck by Glennon’s vehicle. Steedman … testified that he observed Glennon looking down into her lap at the time of the accident. Thus, the evidence submitted by the plaintiff demonstrated, prima facie, that Glennon entered the subject intersection against a red light, in violation of Vehicle and Traffic Law § 1111(d)(1) … . Callahan v Glennon, 2021 NY Slip Op 02509, Second Dept 4-28-21

 

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INFECTING A VICTIM WITH HIV CONSTITUTES “PHYSICAL INJURY” WITHIN THE MEANING OF RISK FACTOR 1 RE: THE SEX OFFENDER REGISTRATION ACT; HOWEVER THE FINDING THAT DEFENDANT IN FACT INFECTED THE VICTIM WITH HIV WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a defendant’s infecting a victim with HIV constitutes “physical injury” within the meaning of risk factor 1 re: the Sex Offender Registration Act (SORA). However the evidence that the victim was in fact infected with HIV by the defendant was not clear and convincing and the related 15 points should not have been assessed:

… [W]e conclude that infection with HIV constitutes a physical injury. …

A defendant’s statements as to his or her medical condition—unsupported by any records or evidence from a medical or health professional—have been rejected … , and there is no reason why the same rule should not apply to the People, who are held to a higher standard of proof. Points may be assessed at a SORA hearing based upon physical injury to the victim, based on “clear and convincing evidence in the record, including medical evaluations” … . However, here, no medical evaluations of the victim were in evidence, and the alleged impairment would not be apparent to a layperson. People v Alay, 2021 NY Slip Op 02551, Second Dept 4-28-21

 

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APPEAL DISMISSED BECAUSE DEFENDANT WAS DEPORTED (SECOND DEPT).

The Second Department dismissed defendant’s appeal because he has been deported. The appeal can be reinstated if defendant returns to the court’s jurisdiction:

In People v Harrison (27 NY3d 281), the Court of Appeals reaffirmed its ruling that an intermediate appellate court retains its discretion to dismiss a pending permissive appeal due to a defendant’s involuntary deportation. Here, if this Court were to reverse the order appealed from, the defendant would be required to attend and participate in further proceedings in the Supreme Court, which he can no longer do. Accordingly, we grant the People’s motion and dismiss the appeal, without prejudice to a motion to reinstate the appeal should the defendant return to this Court’s jurisdiction … . People v Lopez, 2021 NY Slip Op 02546, Second Dept 4-28-21

 

SENTENCE VACATED AND MATTER REMITTED FOR AN ON-THE-RECORD DETERMINATION WHETHER DEFENDANT IS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS; MANDATORY SURCHARGES AND FEES WAIVED WITH PEOPLE’S CONSENT (SECOND DEPT). ​

The Second Department, vacating defendant’s sentence and the imposition of mandatory surcharges and fees, held Supreme Court failed to determine on the record whether defendant was eligible for youthful offender status:

CPL 720.20(1) requires “that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forego it as part of a plea bargain” … . The Supreme Court was required to determine on the record, with respect to the conviction of attempted assault in the first degree, which constituted an armed felony … , whether the defendant was an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10(3) and, if so, whether he should be afforded youthful offender status … . …

The defendant was convicted before the enactment of CPL 420.35(2-a), which permits the waiver of surcharges and fees for persons who, like the defendant, were less than 21 years old at the time of the subject crime. However, based on the People’s consent, and pursuant to the exercise of our interest of justice jurisdiction, we waive the surcharge and fees imposed on the defendant at sentencing … . People v Johnson, 2021 NY Slip Op 02544, Second Dept 4-28-21

 

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DEFENDANT’S PLEA ALLOCUTION NEGATED AN ELEMENT OF THE OFFENSE; PRESERVATION OF THE ERROR NOT REQUIRED BECAUSE THE JUDGE FAILED TO INQUIRE FURTHER AT THE TIME OF THE ALLOCUTION (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea, determined the plea allocution negated the intent-to-sell element of criminal possession of a controlled substance. Preservation of the error for appeal was not required because the judge did not make a sufficient inquiry at the time of the allocution:

As charged here, criminal possession of a controlled substance in the third degree requires “knowingly and unlawfully” possessing “a narcotic drug with intent to sell it” (Penal Law § 220.16[1]). The defendant denied during his plea allocution that he intended to sell the drugs he possessed. This is “that rare case . . . where the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea” … . …

“[W]here a defendant’s factual recitation negates an essential element of the crime pleaded to, the court may not accept the plea without making further inquiry to ensure that defendant understands the nature of the charge and that the plea is intelligently entered” … . When a defendant makes remarks during the plea allocution that cast significant doubt on his guilt concerning an element of the crime, the court has a duty to conduct further inquiry to ensure that the plea was knowingly and voluntarily made … . Where, as here, the court fails in its duty to inquire further, a defendant may raise a claim regarding the validity of the plea even without having moved to withdraw the plea … . People v Gause, 2021 NY Slip Op 02543, Second Dept 4-28-21

 

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SUPREME COURT DID NOT CONDUCT A HEARING OR FOLLOW THE CHILD SUPPORT STANDARDS ACT FORMULA FOR CHILD SUPPORT CALCULATIONS; IN ADDITION THE COURT DID NOT CONSIDER THE STRONG PUBLIC POLICY AGAINST RESTITUTION OR RECOUPMENT OF CHIILD SUPPORT ALREADY PAID; MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court did not conduct a hearing, did not follow the child support formula of the Child Support Standards Act (CSSA) and did not consider the public policy against recoupment or restitution of child support already paid. The matter was remitted for a hearing and a new determination:

… [T]he Supreme Court did not calculate the basic child support obligation for the children, which is done by (1) determining the combined parental income and (2) multiplying the amount of combined parental income up to the statutory cap by the appropriate child support percentage (see Domestic Relations Law § 240[1-b][c]). The court did not determine the combined parental income or identify the applicable statutory cap. It further failed to determine each parent’s pro rata share of the basic child support obligation based on his or her income in proportion to the combined parental income … . Rather, the court incorrectly determined the amount of child support owed to the custodial parent based solely on the noncustodial parent’s income multiplied by the appropriate child support percentage, which the court determined to be 25% of the plaintiff’s income. However, the appropriate basic child support figure for the parties’ two children was 25% of the combined parental income, as prorated between the parties in accordance with the statute (see Domestic Relations Law § 240[1-b][b][3][ii]). … [T]here is no indication that the court considered “[t]he financial resources of the custodial and non-custodial parent” or whether “the gross income of one parent is substantially less than the other parent’s gross income” … . Park v Park, 2021 NY Slip Op 02536, Second Dept 4-28-21

 

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