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APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE A MODE OF PROCEEDINGS ERROR CONCERNING A JURY NOTE ON APPEAL; WRIT OF CORAM NOBIS GRANTED AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, granting the writ of coram nobis and ordering a new trial, determined defendant’s appellate counsel was ineffective in failing to raise a mode of proceedings error on appeal. The was no evidence on the record that the trial judge notified counsel of a substantive note from the jury:

… [O]n the afternoon of the first day of jury deliberations, the Supreme Court received a jury note stating “11 of the 12 jurors find the defendant guilty on all counts. One juror after lengthy discussion still has a reasonable doubt on 9 counts. Juror feels we cannot change her/his mind no matter what we say or do. We need direction.” The record does not indicate that the court read the contents of the note to the parties, discussed its contents with counsel, or allowed trial counsel an opportunity to propose a response for the jury. * * *

The failure to provide counsel with meaningful notice of a substantive jury note requires reversal, regardless of whether the Supreme Court provided the jurors with a meaningful response to their note … . In short, in the absence of record evidence that the court complied with its core responsibilities under CPL § 310.30, a mode of proceedings error occurred requiring reversal … . People v Grant, 2020 NY Slip Op 05922, Second Dept 10-21-20

 

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THE MANSLAUGHTER AND CRIMINALLY NEGLIGENT HOMICIDE CONVICTIONS STEMMING FROM A FATAL TRAFFIC ACCIDENT WERE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (SECOND DEPT).

The Second Department, reversing the manslaughter and criminally negligence homicide convictions stemming from a traffic accident, determined the evidence was legally insufficient. There was evidence provided by another driver (Duke) that defendant was driving above the speed limit before the collision (which Duke did not witness), but nothing else. Two passengers and an unborn child died in the collision:

… [T]he evidence was legally insufficient to establish “the kind of seriously condemnatory behavior” in addition to speeding that is necessary to “transform ‘speeding’ into ‘dangerous speeding'” … . While Duke testified that the defendant’s vehicle “swerv[ed] around” her into the left lane to pass, she did not testify that the defendant’s vehicle came close to hitting her vehicle, that she had to engage in any evasive measures to avoid an accident, that there were any vehicles in the left lane when the defendant moved into it, or that the defendant swerved back in front of her after passing her … . Rather, Duke testified that after the defendant moved into the left lane, she waited for him to pass before getting into the left lane behind him. Moreover, Duke testified that the defendant was driving at a slower rate while moving into the left lane to pass her before speeding up after he moved into the left lane, and that the defendant obeyed a red traffic signal, pausing and not again accelerating until the traffic signal “turned green.” Duke also stated that there were “no more lights” between that traffic signal and the location of the accident, and thus, there is no indication that the defendant disregarded any red traffic signals. Further, the People presented no evidence that the defendant proceeded in disregard of a warning to slow down or of a dangerous driving condition … . Evidence was presented that Kent Avenue, which is partly situated in an industrial area, is not a busy road and generally has “very few cars” on it around the time when the accident occurred. Thus, the People failed to establish that the defendant engaged in “some additional affirmative act aside from driving faster than the posted speed limit,” as required to support a finding of recklessness or criminal negligence … . People v Acevedo, 2020 NY Slip Op 05909, Second Dept 10-21-20

 

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DENIAL OF MOTHER’S REQUEST TO PRESENT EVIDENCE OF HER FINANCIAL SITUATION WAS AN ABUSE OF DISCRETION; MOTHER WAS FACING INCARCERATION FOR VIOLATING HER CHILD SUPPORT OBLIGATIONS; NEW CONFIRMATION OF WILLFULNESS HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Family Court, determined it was an abuse of discretion to deny mother’s request to present evidence of her financial situation and her request for an adjournment to obtain additional proof of her financial situation in this child support proceeding. Mother was facing incarceration for violation of her support obligations:

… [A]lthough the mother appeared in person before the Family Court at the confirmation of willfulness hearing, and proffered documentary and testimonial evidence in support of her assertion that she was indigent and unable to pay child support, the court did not permit the mother to adduce any evidence regarding her financial situation, and denied her request for an adjournment to obtain additional evidence of her inability to work. This was an abuse of discretion … . Since the mother was facing a potential period of incarceration of up to six months in the event that the court determined that her failure to pay child support was willful (see Family Ct Act § 454[3][a]), the mother’s testimony was “essential to the court’s determination as to whether she had had the ability to pay or willfully disobeyed the prior support order” … . If the mother had been given an opportunity to substantiate her claimed inability to pay, and she had done so, the court would have been constrained to deny the father’s petition … . Matter of Palombelli v Guglielmo, 2020 NY Slip Op 05903, Second Dept 10-21-20

 

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DERIVATIVE NEGLECT FINDING STEMMING FROM A MOTION FOR SUMMARY JUDGMENT REVERSED; MOTHER HAD SUCCESSFULLY PARTICIPATED IN MENTAL HEALTH TREATMENT SINCE THE NEGLECT FINDINGS WITH RESPECT TO THE OLDER CHILDREN (SECOND DEPT).

The Second Department, reversing Family Court, determined a derivative neglect finding stemming from a motion for summary judgment should not have been granted. Mother had participated in mental health treatment and had made progress since the prior neglect findings with respect to her older children:

Although there is no express provision for a summary judgment procedure in a Family Court Act article 10 proceeding, summary judgment pursuant to CPLR 3212 may be granted in such a proceeding when there is no triable issue of fact outstanding (see Family Ct Act § 165[a] …). In support of its motion, ACS [Administration for Children’s Services] submitted the court’s prior orders determining that the mother neglected the two older children … . While there were findings of neglect as to the subject child’s two siblings, “there is no per se rule that a finding of neglect of one sibling requires a finding of derivative neglect with respect to the other siblings. The focus of the inquiry . . . is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent’s understanding of the duties of parenthood” … . …

… ACS failed to establish as a matter of law that, under the circumstances, the neglect of the subject child’s siblings merits a finding of derivative neglect as to the subject child … . The medical records submitted by ACS demonstrated that the mother had failed to comply with her mental health treatment in late 2016, which noncompliance was a basis of the prior findings of neglect. However, the records submitted also demonstrated that the mother recommenced treatment in early 2017, immediately after the finding of neglect as to the second child, Akira, and that the mother was thereafter compliant and made positive progress in her mental health treatment for the following year. Accordingly, it cannot be said that ACS established, prima facie, that the mother derivatively neglected the subject child through her failure to resolve the same issues that were the basis for the prior findings of neglect as to the two older children … . Matter of Azayla K. L. (Aleisha L.), 2020 NY Slip Op 05902, Second Dept 10-21-20

 

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PLAINTIFF BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank did not demonstrate compliance with the notice requirements of RPAPL 1304. Therefore the bank’s motion for summary judgment should not have been granted:

… [T]he plaintiff submitted, inter alia, the affidavit of Ray Thacker, a vice president of the plaintiff, based upon his review of his employer’s records, which were attached thereto. However, Thacker’s affidavit contained no statement as to Thacker’s personal familiarity with the mailing practices of his employer … .

Moreover, although Thacker’s affidavit laid a proper foundation for the admission of the business records which were attached thereto (see CPLR 4518[a] …), the content of those records did not demonstrate, prima facie, that the requisite RPAPL 1304 mailings were completed. The copies of letters addressed to the defendant, bearing 20-digit bar codes, were insufficient to demonstrate, prima facie, that the certified mailing or first class mailing actually occurred … . The “Proof of Filing Statement” from the New York State Banking Department, pursuant to RPAPL 1306, reflecting a tracking number, a “Mailing Date Step 1” of May 16, 2012, and a “Filing Date Step 1” of May 17, 2012, also was insufficient to demonstrate, prima facie, the plaintiff’s compliance with all of the requirements of RPAPL 1304 … . JPMorgan Chase Bank, Natl. Assn. v Gershfeld, 2020 NY Slip Op 05895, Second Dept 10-21-20

 

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AN EYEWITNESS TO PLAINTIFF’S SLIP AND FALL TESTIFIED PLAINTIFF TOLD HER SHE TRIPPED OVER A MUDSILL BECAUSE OF DIM LIGHTING; PLAINTIFF’S STATEMENT WAS ADMISSIBLE AS AN EXCITED UTTERANCE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Although plaintiff IHayward) testified she did not know why she tripped on a mudsill, an eyewitness (Espy) testified plaintiff told her she tripped because of dim lighting. Plaintiff’s statement was deemed admissible as an excited utterance. The court noted that defendants had demonstrated the mudsill was open and obvious and therefore did not need to demonstrate a lack of notice:

… [T]he defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the wooden mudsill that caused Hayward to fall was open and obvious and not inherently dangerous … . Contrary to the plaintiff’s contention on appeal, having made that showing, the defendants were not required to make a prima facie showing that they lacked notice of the alleged defect. In opposition, however, the plaintiff raised triable issues of fact, relying on, inter alia, Hayward’s testimony at a hearing held pursuant to General Municipal Law § 50-h and the affidavit of an alleged eyewitness, Janice Espy. During the 50-h hearing, Hayward testified that the area underneath the sidewalk shed was dim and that some of the lighting fixtures were missing light bulbs. However, Hayward testified that she was able to see where she was going. When she was asked why she tripped on the mudsill, Hayward stated that she did not understand the question and that she did not know why she tripped on the wooden mudsill. Espy averred that when she saw Hayward fall, she went to assist her. Hayward told Espy that she tripped on the mudsill and that she did not see it before she fell because the lighting conditions under the sidewalk shed were poor. Hayward’s statement to Espy was admissible as an excited utterance because it was made under the stress of excitement caused by her fall … . Under the circumstances, triable issues of fact exist as to whether the accident site was adequately illuminated and whether the mudsill was open and obvious and not inherently dangerous … . Hayward v Zoria Hous., LLC, 2020 NY Slip Op 05892, Second Dept 10-21-20

 

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THE HEARSAY EXCEPTION IN ARTICLE 10 OF THE FAMILY COURT ACT DOES NOT APPLY IN ARTICLE 8 FAMILY OFFENSE PROCEEDINGS; ORDER OF PROTECTION REVERSED (SECOND DEPT).

The Second Department, reversing the Family Court’s order of protection imposed after a finding appellant had committed a family offense, determined the finding was based upon inadmissible hearsay. The hearsay exception in Article 10 of the Family Court Act does not apply to family offense (Article 8) proceedings:

In a family offense proceeding, “[o]nly competent, material and relevant evidence may be admitted in a fact-finding hearing” (Family Ct Act § 834). In child protective proceedings brought pursuant to articles 10 and 10-A of the Family Court Act, there is a statutory hearsay exception for “previous statements made by the child relating to any allegations of abuse or neglect” (Family Ct Act § 1046[a][vi]). “[A]lthough the hearsay exception contained in Family Court Act § 1046(a)(vi) has been applied in the context of custody proceedings commenced pursuant to Family [Court] Act article 6 where the basis of the custody proceeding is founded on neglect or abuse such that the issues are inextricably interwoven,” section 1046(a)(vi) is inapplicable in a family offense proceeding pursuant to Family Court Act article 8 … . …

… Dhanmatie Godfrey filed a family offense petition against Zahamin Bahadeur, in which she alleged that Bahadeur committed a family offense against one of her children. The only evidence presented by Godfrey in support of the allegations in the family offense petition were the child’s inadmissible hearsay statements, as testified to by Godfrey. The Family Court erred in admitting the child’s hearsay statements into evidence because the hearsay exception set forth in Family Court Act § 1046(a)(vi) does not apply in family offense proceedings pursuant to Family Court Act article 8 … . Matter of Godfrey v Bahadeur, 2020 NY Slip Op 05750, Second Dept 10-14-20

 

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PLAINTIFFS’ EXPERT’S AFFIDAVIT WAS CONCLUSORY AND SPECULATIVE AND RELIED ON FACTS NOT IN THE RECORD; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this medical malpractice should not have granted because plaintiffs’ expert’s affidavit relied on facts not in the record:

… [W]e disagree with the Supreme Court’s determination that the affirmation of the plaintiffs’ expert, submitted in opposition to the motion, was sufficient to raise a triable issue of fact as to whether the defendants deviated or departed from accepted medical practice. Even assuming that the plaintiffs’ expert was qualified to opine on the placement of an epidural catheter, the expert’s opinion that [defendant] departed from the standard of care was conclusory and speculative, and relied on facts that were not supported by the record … . Herrera v Sanroman, 2020 NY Slip Op 05726, Second Dept 10-14-20

 

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ALTHOUGH VACATING A JUDGMENT STEMMING FROM A CONFESSION OF JUDGMENT MUST ORDINARILY BE ACCOMPLISHED BY BRINGING A PLENARY ACTION, A MOTION TO VACATE IS APPROPRIATE WHERE IT IS ALLEGED THE COURT WHICH ENTERED THE JUDGMENT DID NOT HAVE SUBJECT MATTER JURISDICTION; HERE THE MOTION TO VACATE WAS THE CORRECT VEHICLE BUT THE MOTION WAS PROPERLY DENIED ON THE MERITS (SECOND DEPT).

The Second Department noted that ordinarily the only way to vacate a judgment entered by the filing of an affidavit of confession of judgment is a plenary action. However, if, as here, the ground for vacating the judgment is the lack of subject matter jurisdiction, a motion to vacate is proper. Here, although the motion was the proper vehicle, the court did have jurisdiction to enter the judgment:

“Generally, a person seeking to vacate a judgment entered upon the filing of an affidavit of confession of judgment must commence a separate plenary action for that relief” … . However, a claim that the court lacked the authority to enter the judgment is an exception to the general rule requiring a plenary action, and may be raised by a motion to vacate … . Thus, the defendants’ contention that the Supreme Court, Westchester County, lacked subject matter jurisdiction to enter a confession of judgment against them was properly raised by way of motion. Nevertheless, the contention is without merit. Pursuant to the version of CPLR 3218(b) applicable at the time the affidavit of confession was filed, “the clerk of the county designated in the affidavit” had authority to enter a judgment by confession against a nonresident defendant (former CPLR 3218[b]). Funding Metrics, LLC v A & A Fabrication & Polishing Corp., 2020 NY Slip Op 05724, Second Dept 10-14-20

 

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PLAINTIFF DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 AND THE MORTGAGE; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this foreclosure action should not have been granted. Plaintiff did not demonstrate compliance with the notice provisions of RPAPL 1304 and the mortgage:

… [T]he evidence submitted in support of the motion failed to establish, prima facie, the plaintiff’s strict compliance with RPAPL 1304 and that the required notice of default was in fact mailed to the defendants by first-class mail, or actually delivered to the designated address if sent by other means, as required by the terms of the mortgage as a condition precedent to foreclosure … . Deutsche Bank Natl. Trust Co. v Buah, 2020 NY Slip Op 05722, Second Dept 10-14-20

 

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