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IN THE ABSENCE OF AN ORDER SUBSTITUTING THE BANKRUPTCY TRUSTEE FOR THE PLAINTIFF-DEBTOR, THE DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT SHOULD HAVE BEEN GRANTED; SUPREME COURT SHOULD NOT HAVE DENIED DEFENDANTS’ MOTION AND DIRECTED PLAINTIFF TO SEEK RELIEF FROM THE BANKRUPTCY COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that, as a matter of comity, based upon an order in bankruptcy court, a New York court will substitute the bankruptcy trustee as a party in a suit involving the plaintiff/debtor. Here there was no such order and the defendants’ motion to dismiss the complaint should have been granted:

“‘[T]he integrity of the bankruptcy system depends on full and honest disclosure by debtors of all of their assets'” … . “By failing to list causes of action on bankruptcy schedules of assets, the debtor represents that it has no such claims” … .

“[O]nce a bankruptcy proceeding is commenced, all legal or equitable interests of the debtor become part of the bankruptcy estate, including any causes of action (… see 11 USC § 541[a][1]). Accordingly, where a debtor has sought chapter 7 bankruptcy protection, “the causes of action formerly belonging to the debtor . . . [vest] in the trustee for the benefit of the estate . . . [and] [t]he debtor has no standing to pursue such causes of action” … .

In cases where a plaintiff-debtor has successfully petitioned the bankruptcy court to reopen the bankruptcy to include a pending action, this Court has invoked the doctrine of comity to permit substitution of the bankruptcy trustee as a plaintiff … . Here, however, the Supreme Court went further, directing [plaintiff] to seek such relief from the bankruptcy court and denying the defendants’ motion to dismiss the complaint … . …

Under these circumstances, the court should have granted that branch of the defendants’ motion which was to dismiss the complaint … . Nevertheless, the trustee, if he or she should chose to re-commence the case in his or her own name, will enjoy the protection offered by CPLR 205 … . Turner v Owens Funeral Home, Inc., 2020 NY Slip Op 07238, Second Dept 12-2-20

 

ALTHOUGH DECEDENT’S BODY WAS DELIVERED TO THE WRONG FUNERAL HOME, PLAINTIFFS DID NOT DEMONSTRATE DEFENDANT INTERFERED WITH PLAINTIFFS’ RIGHT OF SEPULCHER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs did not demonstrate defendant interfered with plaintiffs’ right of sepulcher by releasing the decedent’s body to the wrong funeral home:

“The common-law right of sepulcher affords the deceased’s next of kin an absolute right to the immediate possession of a decedent’s body for preservation and burial . . . , and damages may be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent’s body” … . “To establish a cause of action for interference with the right of sepulcher, [a] plaintiff must establish that: (1) plaintiff is the decedent’s next of kin; (2) plaintiff had a right to possession of the remains; (3) defendant interfered with plaintiff’s right to immediate possession of the decedent’s body; (4) the interference was unauthorized; (5) plaintiff was aware of the interference; and (6) the interference caused plaintiff mental anguish” … . …

…[T]the evidence establishes that Cleckley, who was then satisfying a residency to become a licensed funeral director, was directed by his superior to collect and transport the decedent’s body to the funeral home. The plaintiffs presented no evidence either that Cleckley was aware that the funeral home was not authorized to take possession of the decedent’s body or that he was negligent in failing to verify that his superior was authorized to direct him to collect and transport the decedent’s body. Thus, the plaintiffs failed to meet their prima facie burden to show that he wrongfully interfered with the plaintiffs’ right to immediate possession of the decedent’s body … . The plaintiffs likewise failed to demonstrate that Cleckley acted wrongfully or negligently such that he may be held liable for their emotional injuries … . Turner v Owens Funeral Home, Inc., 2020 NY Slip Op 07237, Second Dept 12-2-20

 

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THE JURY WAS PROPERLY INSTRUCTED ON THE RES IPSA LOQUITUR DOCTRINE IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department determined the jury was properly instructed on the res ipsa loquitur doctrine in this medical malpractice case. Here plaintiffs presented evidence nerve damage would not have occurred absent negligence. The plaintiff’s verdict was upheld:

We agree with the Supreme Court’s determination to charge the jury with respect to res ipsa loquitur. “Under appropriate circumstances, the evidentiary doctrine of res ipsa loquitur may be invoked to allow the factfinder to infer negligence from the mere happening of an event” … . “‘Where the actual or specific cause of an accident is unknown, under the doctrine of res ipsa loquitur a jury may in certain circumstances infer negligence merely from the happening of an event and the defendant’s relation to it'” … . Res ipsa loquitur “‘derives from the understanding that some events ordinarily do not occur in the absence of negligence'” … . “‘In addition to this first prerequisite, plaintiff must establish, second, that the injury was caused by an agent or instrumentality within the exclusive control of defendant and, third, that no act or negligence on the plaintiff’s part contributed to the happening of the event. Once plaintiff satisfies the burden of proof on these three elements, the res ipsa loquitur doctrine permits the jury to infer negligence from the mere fact of the occurrence'” … . “Moreover, expert testimony may be properly used to help the jury ‘bridge the gap’ between its own common knowledge, which does not encompass the specialized knowledge and experience necessary to reach a conclusion that the occurrence would not normally take place in the absence of negligence, and the common knowledge of physicians, which does” … .

Here, the plaintiffs presented expert testimony that, in a first time fundoplication procedure like the plaintiff’s, injury to the vagus nerves should not occur if the surgeon adheres to the accepted standard of care and follows the proper surgical sequence. While the defendants presented evidence that gastroparesis can be idiopathic, “a plaintiff need not conclusively eliminate the possibility of all other causes of the injury to rely on res ipsa loquitur” … . Smith v Sommer, 2020 NY Slip Op 07235, Second Dept 12-2-20

 

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STATUTORY CRITERIA FOR CRIMINAL CONTEMPT FIRST DEGREE NOT MET; CONVICTION REDUCED TO CRIMINAL CONTEMPT SECOND DEGREE (SECOND DEPT).

The Second Department determined the statutory criteria for criminal contempt first degree were not met and reduced the conviction to criminal contempt second degree:

As the People concede, the evidence was legally insufficient to establish the defendant’s guilt of criminal contempt in the first degree in violation of Penal Law § 215.51(c). An essential element of that crime is that the defendant has violated an order of protection issued pursuant to “sections two hundred forty and two hundred fifty-two of the domestic relations law, articles four, five, six and eight of the family court act and section 530.12 of the criminal procedure law, or an order of protection issued by a court of competent jurisdiction in another state, territorial or tribal jurisdiction, which requires the respondent or defendant to stay away from the person or persons on whose behalf the order was issued” … . Here, the defendant was accused of violating an order of protection issued pursuant to Criminal Procedure Law § 530.13. Criminal Procedure Law § 530.13, which provides protection to victims of crimes other than family offenses, is not one of the authorities enumerated in Penal Law § 215.51(c). Accordingly, the defendant’s conviction of criminal contempt in the first degree was legally insufficient because the People could not prove an essential element of the offense … . However, because the evidence was legally sufficient to support a conviction of the lesser included offense of criminal contempt in the second degree (see Penal Law § 215.50[3]), the defendant’s conviction is reduced accordingly … . People v Smith, 2020 NY Slip Op 07229, Second Dept 12-2-20

 

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THE CHARGES AGAINST DEFENDANT STEMMED FROM HIS STRIKING AND SERIOUSLY INJURING AN EIGHT-POUND DOG; THERE WAS NO NEED TO INSTRUCT THE GRAND JURY ON THE JUSTIFICATION DEFENSE; INDICTMENT REINSTATED OVER A DISSENT (SECOND DEPT).

The Second Department, reversing Supreme Court on the People’s appeal, over an extensive dissent, determined the grand jury proceedings were not defective due to the prosecutor’s failure to instruct the grand jury on the justification defense. The charges against the defendant stemmed from his striking and severely injuring a dog. The Second Department held a reasonable view of the evidence did not warrant the justification instruction:

“‘[A] prosecutor should instruct the Grand Jury on any complete defense supported by the evidence which has the potential for eliminating a needless or unfounded prosecution'” … . “The failure to charge justification constitutes reversible error only when the defense is ‘supported by a reasonable view of the evidence—not by any view of the evidence, however artificial or irrational'” … . …

There is no reasonable view of the evidence that forcefully striking and injuring the approximate eight-pound terrier poodle in the manner undertaken by the defendant, who was approximately 6 feet tall and weighed 200 pounds, was necessary as an emergency measure to avoid, at most, a bite by this small animal through denim pants. People v Jimenez, 2020 NY Slip Op 07223, Second Dept 12-2-20

 

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DEFENDANT WAS HOUSED HOURS AWAY FROM HIS BROOKLYN ATTORNEY AND ATTEMPTS TO MOVE DEFENDANT TO NEW YORK CITY WERE UNSUCCESSFUL; UNDER THE CIRCUMSTANCES, DEFENDANT WAS DENIED HIS RIGHT TO CONSULT WITH HIS ATTORNEY BEFORE ENTERING A GUILTY PLEA; THE MOTION TO VACATE THE PLEA SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Miller, considering the appeal in the interest of justice, determined defendant’s motion to withdraw his guilty plea should have been granted. Defendant was housed far away from his Brooklyn attorney and the attempts to have him moved to New York City were ignored by the Department of Corrections. The Second Department held defendant had been deprived of his right to counsel:

Under the circumstances here, and particularly in view of the defendant’s substantiated and uncontradicted testimony that he was deprived of his constitutional right to consult with his attorney in advance of trial, the Supreme Court improvidently exercised its discretion in denying the defendant’s application pursuant to CPL 220.60(3) to withdraw his plea of guilty. Under the circumstances … we conclude that the interests of justice would have been better served had the defendant been permitted to withdraw his plea of guilty. * * *

This Court has recognized that “[s]imple justice . . . mandates that a plea must be knowingly and intelligently given and, if it be to any degree induced by fear or coercion, it will not be permitted to stand” … . People v Hollmond, 2020 NY Slip Op 07222, Second Dept 12-2-20

 

ASSAULT THIRD IS AN INCLUSORY CONCURRENT COUNT OF ASSAULT SECOND (SECOND DEPT).

The Second Department noted that assault third is an inclusory concurrent count of assault second:

… [T]he defendant’s conviction of assault in the third degree must be vacated as an inclusory concurrent count of assault in the second degree (see CPL 300.40[3][b]; Penal Law §§ 120.05[2]; 120.00[1] …). People v Cullins, 2020 NY Slip Op 07219, Second Dept 12-2-20

 

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UNDER THE CIRCUMSTANCES, SUPREME COURT SHOULD HAVE GRANTED THE DEFENSE AND PROSECUTION’S JOINT REQUEST TO HAVE THE DEFENDANT’S COMPETENCE TO STAND TRIAL EVALUATED; ONCE A DEFENDANT IS DEEMED COMPETENT TO STAND TRIAL, THE DECISION WHETHER TO PRESENT AN INSANITY DEFENSE IS THE DEFENDANT’S, NOT THE COURT’S, TO MAKE (SECOND DEPT).

The Second Department, reversing the convictions, determined: (1) the trial judge should not have rejected the request by both defense counsel and the prosecutor to have the defendant’s mental health and fitness for trial evaluated; and (2) once a defendant is found competent to stand trial the decision whether to present an insanity defense is the defendant’s alone. Here defense counsel was ordered by the judge to present an insanity defense, over defendant’s objection:

… [W]hen confronted with evidence that the defendant was not taking his required medication and was not able to communicate rationally with his attorney, the Supreme Court should have granted the joint applications of the People and the defense to have the defendant examined pursuant to CPL 730.30(1) to determine his fitness to proceed … . …

… [A] defendant found competent to stand trial has the ultimate authority, even over counsel’s objection, to reject the use of a psychiatric defense … . Thus, once the Supreme Court determined the defendant to be competent to stand trial, it should not have interfered with that authority by “order[ing]” defense counsel, over the defendant’s objection, to present an insanity defense. People v Bellucci, 2020 NY Slip Op 07215, Second Dept 12-2-20

 

ALTHOUGH DEFENDANT NEVER ANSWERED THE COMPLAINT, HE APPEARED BY MAKING A MOTION TO DISMISS AND PARTICIPATED IN THE LITIGATION, THEREFORE DEFENDANT’S MOTION TO VACATE THE DEFAULT SHOULD HAVE BEEN GRANTED; DISMISSAL OF THE ACTION FOR FAILURE TO INCLUDE A NECESSARY PARTY OR THE FAILURE TO JOIN OR SUBSTITUTE A PARTY WAS NOT WARRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate the default should have been granted. Although defendant did not submit an answer, he did move to dismiss the complaint, which extended his time to answer, and thereafter participated in the litigation. Supreme Court properly denied defendant’s motion to dismiss on the ground a necessary party was not included in the suit, and on the ground a party should have been substituted or joined:

We disagree with the Supreme Court’s determination to deny that branch of the defendant’s motion which was to vacate his default in answering the complaint. “CPLR 320(a) provides that a defendant may appear in an action in one of three ways: (1) by serving an answer, (2) by serving a notice of appearance, or (3) making a motion which has the effect of extending the time to answer” … . Here, the defendant appeared in the action in May 2008, when he, among others, moved pursuant to CPLR 3211(a) to dismiss the complaint, which extended his time to serve an answer (see CPLR 320[a]; 3211[f]). Although the defendant did not serve an answer to the complaint following the denial of his motion, the record demonstrates that the defendant actively participated in the litigation during the ensuing years and that the plaintiffs never moved for leave to enter a default judgment against him. …

“CPLR 1001(a) provides that ‘[p]ersons . . . who might be inequitably affected by a judgment in the action’ are necessary parties whose joinder is required” … . “‘When a person who should be joined under [CPLR 1001(a)] has not been made a party and is subject to the jurisdiction of the court, the court shall order him summoned'”…. . However, “[u]pon any transfer of interest, the action may be continued by or against the original parties unless the court directs the person to whom the interest is transferred to be substituted or joined in the action” (CPLR 1018). “The determination to substitute or join a party pursuant to CPLR 1018 is within the discretion of the trial court” … . Contrary to the defendant’s contention, the Supreme Court did not improvidently exercise its discretion in permitting the plaintiffs to continue this action against the original defendants, despite any alleged changes to the composition of the purported board of trustees … over the course of this 16-year litigation, in order to avoid any further unnecessary delay … . Kelley v Garuda, 2020 NY Slip Op 07180, Second Dept 12-2-20

 

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PLAINTIFF’S FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, SUA SPONTE, AS ABANDONED PURSUANT TO 22 NYCRR 202.48; THE 60-DAY TIME LIMIT ONLY APPLIES TO THE DIRECTION TO SUBMIT A JUDGMENT “ON NOTICE” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court should not have dismissed plaintiff’s foreclosure action, sua sponte, as abandoned pursuant to 22 NYCRR 202.48. Supreme Court, after plaintiff’s unopposed motion for a judgment of foreclosure and sale, directed the plaintiff to “submit judgment.” When plaintiff submitted a proposed judgment for signature, Supreme Court dismissed the action because the proposed judgment was not submitted within 60 days. The 60-day time limit only applies when a party is directed to submit the judgment “on notice:”

Pursuant to 22 NYCRR 202.48, an order or judgment which is directed to be settled or submitted on notice must be submitted for signature within 60 days after the signing and filing of the decision directing that the order or judgment be settled or submitted. A party who fails to submit the order or judgment within the 60-day time period will be deemed to have abandoned the action or motion, absent good cause shown … . In this case, when the Supreme Court initially granted the plaintiff’s motion, inter alia, for a judgment of foreclosure and sale, it did not direct that the proposed judgment had to be settled or submitted on notice. 22 NYCRR 202.48 does not apply where, as here, the court merely directs a party to submit an order or judgment without expressly directing that the order or judgment be submitted on notice … . James B. Nutter & Co. v McLaughlin, 2020 NY Slip Op 07178, Second Dept 12-2-20

 

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