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PLAINTIFF DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1304 AND 1306 IN THIS FORECLOSURE ACTION; PROOF REQUIREMENTS EXPLAINED IN SOME DEPTH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff loan services company (Aurora/Nationstar) did not demonstrate compliance with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 13O4 and 1306. Therefore, Aurora’s motion for summary judgment in this foreclosure action should not have been granted. The court, noting that “lack of notice’ may be raised at any time, explained defendant did not waive the “lack of notice” defense because defendant denied the plaintiff’s complaint-allegations of compliance and raised the issue in opposition to plaintiff’s motion for summary judgment. The Second Department further found defendant was not entitled to summary judgment because “lack of notice” was not demonstrated as a matter of law. The decision provides a valuable explanation of the proof requirements for compliance with RPAPL 1304 and 1306:

In support of its motions, Aurora submitted the affidavit of Jerrell Menyweather, a document execution specialist employed by Nationstar, along with a copy of a 90-day notice addressed to the defendant, and a proof of filing statement pursuant to RPAPL 1306 from the New York State Banking Department. Although Menyweather stated in the affidavit that the RPAPL notices were sent to the defendant at her last known address and the subject property, Menyweather did not have personal knowledge of the mailing, and Aurora failed to provide any documents to prove that the notices were actually mailed … . Aurora also failed to submit a copy of any United States Post Office document indicating that the notices were sent by registered or certified mail as required by the statute … . Furthermore, Menyweather did not aver that he was familiar with Aurora’s mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed … . Nationstar Mtge., LLC v Matles, 2020 NY Slip Op 03793, 7-8-20

 

DEFENDANT’S INTELLECTUAL DISABILITY REQUIRED A MORE PROBING COLLOQUY BEFORE ACCEPTING THE GUILTY PLEA AND THE WAIVER OF APPEAL, PLEA VACATED (SECOND DEPT).

The Second Department, vacating defendant’s guilty plea to murder, in a full-fledged opinion by Justice Manzanet-Daniels, determined defendant’s intellectual disability required a more probing colloquy to ensure defendant understood the ramifications of the plea and the waiver of appeal:

Defendant’s psychological assessments cast serious doubt about his ability to enter a knowing and voluntary plea. DOE records showed defendant to have been diagnosed as mentally retarded and to suffer from “severe academic delays.” The records indicated that with an IQ of only 56, defendant had “extremely low” “general cognitive ability,” with “overall thinking and reasoning abilities” in the bottom 0.2%. Those records further indicated that defendant’s verbal comprehension, perceptual reasoning, working memory, and processing speed were “extremely low,” in the bottom 0.2 to 2%.

The CPL 390 report, ordered by the trial court in aid of sentencing, confirmed the doubts regarding defendant’s mental capacity and ability to understand or participate in the proceedings. Doctors at Bellevue observed defendant to suffer from an intellectual disability with “extremely low” intellectual functioning. Defendant’s IQ placed him in the bottom one percentile as compared to his peers. The report noted that defendant’s limited cognitive abilities placed him at increased risk of impulsive behavior without regard to the consequences of his actions. People v Patillo, 2020 NY Slip Op 03754, Second Dept 7-2-20

 

FOR CAUSE CHALLENGE TO A JUROR SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (FIRST DEPT).

The First Departing, ordering a new trial, determined defendant’s for cause challenge to a juror should have been granted:

The challenged panelist stated that he could not be “fully fair” if defendant did not testify and “defend himself,” and that it might be difficult for him to acquit a defendant who did not testify, because then “we only get one side.” This reflected a state of mind likely to preclude the rendering of an impartial verdict (see CPL 270.20[1][b]), and the court did not elicit an unequivocal assurance that he would set aside any bias and render an impartial verdict based on the evidence … . When the court asked if he would “hold it against” defendant if defendant did not testify, he responded “No, not hold it against him, but —- I don’t know.” When the court further asked whether defendant’s failure to testify would trouble the panelist to the point where he could not give defendant a fair trial, he responded “I think I’ll be able to give him a fair trial.” Although expressions such as “I think” are not disqualifying, here the panelist’s responses, viewed as a whole, fell short of the required express and unequivocal declarations … . “If there is any doubt about a prospective juror’s impartiality, trial courts should err on the side of excusing the juror, since at worst the court will have replaced one impartial juror with another” … . People v Laverpool, 2020 NY Slip Op 03745, First Dept 7-2-20

 

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ALTHOUGH DEFENDANT COMPLETED HIS SENTENCE HE IS ENTITLED TO A DETERMINATION WHETHER HE SHOULD BE ADJUDICATED A YOUTHFUL OFFENDER; THE ORDER OF PROTECTION EXCEEDED THE STATUTORY TIME LIMIT (SECOND DEPT).

Although defendant had already completed his sentence, the Second Department held he was entitled to a determination whether he should be adjudicated a youthful offender, even if that relief was not requested. In addition, the Second Department noted the order of protection exceeded the maximum time allowed in the Criminal Procedure Law and did not take into account defendant’s jail-time:

In People v Rudolph (21 NY3d 497, 499), the Court of Appeals held that compliance with CPL 720.20(1), which provides that the sentencing court “must” determine whether an eligible defendant is to be treated as a youthful offender, “cannot be dispensed with, even where defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request.” Compliance with CPL 720.20(1) requires the sentencing court to actually consider and make an independent determination of whether an eligible youth is entitled to youthful offender treatment … .

Here, the record does not demonstrate that the Supreme Court considered whether to adjudicate the defendant a youthful offender. “Generally, under such circumstances, the sentence is vacated, and the matter remitted to the sentencing court for resentencing after determining whether the defendant should be treated as a youthful offender”… . However, in this case, the defendant has served his sentences. Under these circumstances, we remit the matter to the Supreme Court, Kings County, to determine whether the defendant should be afforded youthful offender treatment and thereafter submit a report to this Court advising of its determination, and hold the appeals in abeyance in the interim … . People v Shehi, 2020 NY Slip Op 03676, Second Dept 7-1-20

 

RESTITUTION PAYABLE TO THE CRIME VICTIMS BOARD EXCEEDED THE STATUTORY CAP FOR A FELONY (SECOND DEPT).

The Second Department noted that the restitution amount payable to the Crime Victims Board exceeded the statutory cap:

… [T]he amount of restitution payable to the Crime Victims Board for the family of Sherman Richardson improperly exceeds $15,000 and violates the statutory cap in Penal Law § 60.27(5)(a). Penal Law § 60.27(5)(a) provides that, except with the consent of the defendant or in instances where restitution is ordered as a condition of probation or conditional discharge, “the amount of restitution or reparation required by the court shall not exceed fifteen thousand dollars in the case of a conviction for a felony” … . This provision is qualified by Penal Law § 60.27(5)(b), which allows a court to order restitution in excess of this amount as long as the sum is “limited to the return of the victim’s property, including money, or the equivalent value thereof” … . As for the restitution payable to the Crime Victims Board for Richardson’s family, the amount in excess of $15,000 did not meet the requirements of Penal Law § 60.27(5), since the amount of the defendant’s restitution set by the Supreme Court was not intended as reimbursement for the value of the property destroyed. However, restitution in the sum of $3,374.75 to Enterprise Rent-A-Car, the owner of the vehicle operated by the defendant and later set on fire, was proper … . People v Grant, 2020 NY Slip Op 03674, Second Dept 7-1-20

 

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ALTHOUGH IT WAS ERROR TO DENY THE DEFENSE REQUEST FOR A RODRIGUEZ HEARING BASED UPON THE PROSECUTOR’S ASSERTION THE COMPLAINANT AND THE DEFENDANT KNEW EACH OTHER, THE TRIAL TESTIMONY DEMONSTRATED THE COMPLAINANT AND DEFENDANT IN FACT KNEW EACH OTHER; THE DISSENT ARGUED THE COURT OF APPEALS REQUIRES THAT THE IDENTIFICATION ISSUE BE RESOLVED BEFORE TRIAL (SECOND DEPT).

The Second Department affirmed defendant’s conviction over a substantive dissent. Arguing against a Wade hearing addressing the suggestiveness of the complainant’s identification of the defendant from single photograph displays, the prosecutor told the judge the complainant and the defendant knew each other and the identification procedures were merely confirmatory. Defendant denied knowing the complainant and requested a Rodriguez hearing. The judge denied the request based on the People’s assertion the identification procedures were confirmatory. The denial of the Rodriguez hearing was deemed to be error, but the majority concluded the hearing was not necessary because the trial testimony demonstrated the complainant knew the defendant. The dissent argued the Court of Appeals, in the Rodriguez case, required resolution of the identification issue before trial:

The Supreme Court erred in relying on the People’s mere assurances of familiarity in denying the defendant’s pretrial request for a Rodriguez hearing  … . Nevertheless, a hearing with regard to the single-photograph identifications made by the complainant soon after the shooting was ultimately unnecessary inasmuch as the complainant’s trial testimony demonstrated that he was sufficiently familiar with the defendant, whom he knew and referred to by the defendant’s street name,”Chulo,” such that the complainant’s identification of the defendant from the photo display was merely confirmatory … . * * * When a crime has been committed by a . . . long-time acquaintance of a witness there is little or no risk that comments by the police, however suggestive, will lead the witness to identify the wrong person'” … . Any suggestiveness of the initial photo identification procedure or the purported taint thereafter was not a concern since ” the protagonists are known to one another'” … . ​People v Carmona, 2020 NY Slip Op 03672, Second Dept 7-1-20

 

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THE CONDITIONAL DIRECTIVE THAT FATHER BE AWARDED SOLE CUSTODY IF MOTHER DID NOT RETURN FROM SWEDEN WITH THE CHILD IS NOT ENFORCEABLE; A CHANGE IN CUSTODY MUST BE BASED ON THE BEST INTERESTS OF THE CHILD AND SHOULD NOT BE USED TO PUNISH A PARENT (SECOND DEPT).

The Second Department, reversing Family Court, determined the conditional directive that sole custody of the child be awarded to father if mother did not return from Sweden with the child within 30 days was not enforceable. There was no application for a change of custody before the court. The conditional directive was issued to punish mother for moving to and remaining in Sweden and was not based upon the best interests of the child:

The paramount concern in any custody determination is the best interests of the child, under the totality of the circumstances  … . Reversal or modification of an existing custody order ” should not be a weapon wielded as a means of punishing a recalcitrant’ or contemptuous parent” … . In addition, “where no party has moved for a change in custody, a court may not modify an existing custody order in a non-emergency situation absent notice to the parties, and without affording the custodial parent an opportunity to present evidence and to call and cross-examine witnesses” … .

Here, the Family Court’s conditional directive that sole legal and physical custody of the child shall be transferred to the father if the mother did not return the child to New York City within 30 days was meant to punish the mother and was not based on the court’s determination of the best interests of the child. The court should not have considered a change in custody in the absence of an application for such relief with notice to the mother …. Further, the court’s conditional award of custody to the father was improper in light of the court’s determination otherwise that it was in the child’s best interests to remain in the custody of the mother, and considering, among other things, that the mother had always been the child’s primary caretaker, the father did not have overnight visits with the child, and the court had previously expressed concerns about the father’s ability to care for the child for an extended period of time … . Matter of Ross v Ross, 2020 NY Slip Op 03668, Second Dept 7-1-20

 

THE PARENT’S INABILITY TO CONTROL THE CHILD’S BROTHER PRECLUDED THE RETURN OF THE CHILD TO THE PARENT’S CUSTODY AFTER TEMPORARY REMOVAL (SECOND DEPT).

The Second Department, reversing Family Court, determined the record did not support the return of the child to the parent’s custody after temporary removal. The Second Department found that the parent’s difficulty controlling the child’s brother, who requires constant supervision, put the child at risk:

“An application pursuant to Family Court Act § 1028(a) for the return of a child who has been temporarily removed shall be granted unless the court finds that the return presents an imminent risk to the child’s life or health'” … . “In a proceeding for removal of a child, the Family Court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal'” … . “Ultimately, the Family Court must balance that risk against the harm removal might bring, and it must determine factually which course is in the child’s best interests” … . On appeal, this Court must assess whether the record provides a sound and substantial basis to support the Family Court’s determination … .

Here, the Family Court’s determination granting the parents’ application pursuant to Family Court Act § 1028 for the return of the child to their custody lacks a sound and substantial basis in the record … . The evidence at the hearing demonstrates that the child’s sibling, Michael, has special needs that require him to be under constant supervision, and that on a prior occasion the parents’ inability to control Michael resulted in serious physical injuries to one of the child’s siblings. Notwithstanding the parents’ willingness to comply with court-ordered services, the parents and Michael had not yet completed those services at the time of the hearing. In our view, the parents’ inability to adequately control Michael would present an imminent risk to the child’s life or health if the child were returned to the parents. Given the circumstances of the family’s living situation at the time of the hearing, this risk could not be mitigated by the conditions imposed by the court. Matter of Nicholas O. (Jenny F.), 2020 NY Slip Op 03663, Second Dept 7-1-20

 

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NEW THEORY PRESENTED IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE LACK-OF-INFORMED-CONSENT CAUSE OF ACTION SHOULD NOT HAVE BEEN CONSIDERED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined plaintiff’s lack-of-informed-consent cause of action in this medical malpractice case should have been dismissed. Plaintiff had alleged a new theory in response to defendant’s motion for summary judgment which should not have been considered because the theory was not discernable from the pleadings:

… [T]he Supreme Court should have granted that branch of the defendant’s motion which was for summary judgment dismissing the cause of action to recover damages for lack of informed consent insofar as asserted against him. The defendant made a prima facie showing of his entitlement to judgment as a matter of law dismissing that cause of action insofar as asserted against him through the affidavit of his expert, the deposition testimony, and the written consent form signed by the plaintiff, which demonstrated that the defendant disclosed to the plaintiff the risks, benefits, and alternatives to the procedure … .

In opposition, the plaintiff alleged, for the first time, a new theory that the procedure performed by the defendant exceeded the scope of her consent in specific respects, a theory that was not referred to when the plaintiff’s counsel questioned the defendant at his deposition. The general rule is that ” [a] plaintiff cannot, for the first time in opposition to a motion for summary judgment, raise a new or materially different theory of recovery against a party from those pleaded in the complaint and the bill of particulars'” … . If the theory is discernable from the pleadings, it may be considered … , especially if the theory is referred to in the depositions … . In this case, the assertion of the new theory was not discernable from the pleadings, nor alluded to by the plaintiff’s counsel when deposing the defendant … . Therefore, that theory should not have been considered. Larcy v Kamler, 2020 NY Slip Op 03652, Second Dept 7-1-20

 

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THE PROMISSORY NOTE WAS NOT DEMONSTRATED TO BE AN INSTRUMENT FOR THE PAYMENT OF MONEY ONLY, THE MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in lieu of complaint (CPLR 3213) based upon a promissory note should not have been granted. The note was not demonstrated to be an instrument for the payment of money only:

Pursuant to CPLR 3213, a plaintiff demonstrates its prima facie entitlement to judgment as a matter of law with respect to a promissory note if it shows “the existence of a promissory note, executed by the defendant, containing an unequivocal and unconditional obligation to repay, and the failure by the defendant to pay in accordance with the note’s terms” … . “Where the instrument requires something in addition to defendant’s explicit promise to pay a sum of money, CPLR 3213 is unavailable” … . Once the plaintiff has established its prima facie entitlement to judgment as a matter of law, “the burden then shifts to the defendant to submit evidence establishing the existence of a triable issue with respect to a bona fide defense” … .

Here, the plaintiffs failed to establish, prima facie, that the subject promissory note was an instrument for the payment of money only … . In support of their motion, the plaintiffs submitted the promissory note, which refers to the asset sale/purchase agreement and provides the defendants with “an absolute right of set-off against the entire unpaid principal balance of [the] Note based upon any and all provisions of the Asset Sale/Purchase Agreement.” Under the circumstances, “outside proof” was required, “other than simple proof of nonpayment,” to establish the plaintiffs’ prima facie case … . Express Valentine Auto Repair Shop, Inc. v New York Taxi 2, Inc., 2020 NY Slip Op 03644, Second Dept 7-1-20

 

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