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THE MEANING OF ‘GROSS EARNED INCOME’ IN THE STIPULATION OF SETTLEMENT AFFECTED THE CALCULATION OF CHILD SUPPORT; THE TERM WAS AMBIGUOUS REQUIRING A HEARING TO DETERMINE THE INTENT OF THE PARTIES (SECOND DEPT).

The Second Department, reversing Family Court, determined the settlement agreement was ambiguous. The meaning of the term “gross earned income” in the agreement affected the child support calculation. The court should have held a hearing to ascertain the intent of the parties. Instead, the court deferred to the definition of “income” in the Child Support Standards Act (CSSA):

“A stipulation of settlement entered into by parties to a divorce proceeding constitutes a contract between them subject to the principles of contract interpretation” … . “Where the intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used” … . “A court may not write into a contract conditions the parties did not insert or, under the guise of construction, add or excise terms, and it may not construe the language in such a way as would distort the apparent meaning” … . “Whether a writing is ambiguous is a matter of law for the court, and the proper inquiry is whether the agreement on its face is reasonably susceptible of more than one interpretation” … . In making this determination, the court also should examine the entire contract and consider the relation of the parties and the circumstances under which the contract was executed … . Where a contract is ambiguous, “the court may consider the construction placed on the contract by the parties to help ascertain the meaning” … . “The role of the court is to determine the intent and purpose of the stipulation based on the examination of the record as a whole” … .

Here, the term “gross earned income,” in the context of the parties’ stipulation, is ambiguous … . However, instead of deferring to the CSSA’s definition of “income,” the Support Magistrate should have held a hearing to determine the parties’ intent in including the word “earned” … . Matter of Abramson v Hasson, 2020 NY Slip Op 03418, Second Dept 6-17-20

 

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PLAINTIFF SOUGHT ONLY CANCELLATION OF A MORTGAGE; THE JUDGE SHOULD NOT HAVE, SUA SPONTE, CANCELLED THE NOTE AS WELL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, granted relief that was not asked for by the plaintiff. Plaintiff sought cancellation and discharge of a mortgage pursuant to Real Property Actions and Proceedings Law (RPAPL) 1501(4). The judge cancelled the mortgage and the note:

“The court may grant relief that is warranted pursuant to a general prayer for relief contained in a notice of motion if the relief granted is not too dramatically unlike the relief sought, the proof offered supports it, and there is no prejudice to any party” … . Here, the plaintiff only sought cancellation and discharge of the subject mortgage, not cancellation of the note. The Supreme Court should not have granted additional relief sua sponte … . We note that the plaintiff lacked standing to seek cancellation of the note, as it was not a party to it. Trenton Capital, LLC v Bank of N.Y. Mellon, 2020 NY Slip Op 03416, Second Dept 6-17-20

 

CONVICTION OF COURSE OF SEXUAL CONDUCT AGAINST A CHILD FIRST DEGREE MUST BE VACATED AS A LESSER INCLUDED OFFENSE OF PREDATORY SEXUAL ASSAULT AGAINST A CHILD (SECOND DEPT).

The Second Department noted that defendant’s conviction of course of sexual conduct against a child in the first degrees must be vacated as a lesser included offense:

… [T]he defendant’s conviction of course of sexual conduct against a child in the first degree under Penal Law § 130.75(1)(a) must be vacated and that count of the indictment dismissed, since that count is a lesser included offense of the crime of predatory sexual assault against a child under Penal Law § 130.96 … . People v Jones, 2020 NY Slip Op 03406, Second Dept 6-17-20

 

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ALTHOUGH AN INCOMPLETE CHANGE-OF-ATTORNEY STIPULATION WAS FILED BEFORE THE STIPULATION OF DISCONTINUANCE WAS FILED, THE STIPULATION OF DISCONTINUANCE REMAINED VALID AND ENFORCEABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a stipulation of discontinuance executed by the plaintiff’s then attorney, and filed after plaintiff’s change-of-attorney stipulation was filed, was valid and enforceable. Plaintiff’s change-of-attorney stipulation was not signed by an agent or representative of the plaintiff:

” [A]n attorney of record in an action may only withdraw or be changed or discharged in the manner prescribed by statute'” … . Pursuant to CPLR 321(b), an attorney of record may be changed either by filing with the clerk a consent to the change signed by the retiring attorney and signed and acknowledged by the party, with notice of the change given to the attorneys for all parties in the action, or by order of court upon notice to all parties. ” Until an attorney of record withdraws or is changed or discharged in the manner prescribed by CPLR 321, his [or her] authority as attorney of record for his [or her] client continues, as to adverse parties, unabated'” … .

Here, the stipulation of discontinuance was executed by an attorney with the plaintiff’s then attorney of record … (hereinafter outgoing counsel). Though the plaintiff’s stipulation to change its attorney was filed prior to the date on which the stipulation of discontinuance was filed, and was signed by outgoing counsel and incoming counsel, no agent or representative of the plaintiff signed the change-of-attorney stipulation. Nor does the record establish that notification of the plaintiff’s change in attorney was provided to any other party, or to the appellant, prior to the date on which the stipulation of discontinuance was filed. Accordingly, the plaintiff neither filed a properly signed consent to change attorney form nor sought a court order permitting outgoing counsel to withdraw as the plaintiff’s attorney of record in accordance with CPLR 321(b) prior to the filing of the stipulation of discontinuance.  GMAC Mtge., LLC v Galvin, 2020 NY Slip Op 03405, Second Dept 6-17-20

 

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SUPPRESSION COURT’S FAILURE TO EXPLAIN THE BASIS FOR DENYING THE MOTION TO SUPPRESS PRECLUDED DETERMINATION OF THE APPEAL; MATTER REMITTED (SECOND DEPT).

The Second Department, holding the appeal and remitting the matter, noted that the suppression court’s failure to provide the basis for its denial of defendant’s suppression motion precluded determination of the appeal:

The defendant’s appeal from the order must be dismissed, as no appeal lies, as of right or by permission, from an order denying a motion to suppress evidence (see CPL 450.10, 450.15 …). The issues raised on the appeal from the order are brought up for review on the appeal from the judgment.

“Upon an appeal to an intermediate appellate court from a judgment, sentence or order of a criminal court, such intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant” (CPL 470.15[1]). The Court of Appeals “has construed CPL 470.15(1) as a legislative restriction on the Appellate Division’s power to review issues either decided in an appellant’s favor, or not ruled upon, by the trial court” … . “CPL 470.15(1) bars [the Appellate Division] from affirming a judgment, sentence or order on a ground not decided adversely to the appellant by the trial court'” … .

… [W]e must hold the appeal from the judgment in abeyance and remit the matter to the Supreme Court … to articulate the basis or bases for its denial of those branches of the defendant’s omnibus motion which were to suppress physical evidence and his statement to law enforcement officials. People v Rice, 2020 NY Slip Op 03402, Second Dept 6-17-20

 

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WHETHER THE SIDEWALK DEFECT WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL IS SHOWN ON A BIG APPLE MAP MUST BE RESOLVED BY A JURY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether the sidewalk defect which allegedly caused plaintiff to fall was depicted on the Big Apple map. Therefore the question whether the city had written notice of the defect was for the jury:

Administrative Code of the City of New York § 7-201(c)(2) “limits the City’s duty of care over municipal streets and sidewalks by imposing liability only for those defects or hazardous conditions which its officials have been actually notified exist at a specified location” … . Accordingly, “prior written notice of a defect is a condition precedent which plaintiff is required to plead and prove to maintain an action against the City” … . …

“Big Apple is a corporation established by the New York State Trial Lawyers Association for the purpose of giving notices in compliance with [Administrative Code of City of New York § 7-201(c)(2)]. It does so through maps on which coded symbols are entered to represent defects” … . “A Big Apple map submitted to the Department of Transportation may serve as prior written notice of a defective condition” … . …

” Where [, as here,] there are factual disputes regarding the precise location of the defect that allegedly caused a plaintiff’s fall, and whether the alleged defect is designated on the [Big Apple] map, the question should be resolved by a jury'” … . Harrison v City of New York, 2020 NY Slip Op 03401, Second Dept 6-17-20

 

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WHERE A TRIAL JUDGE DEMANDS A WAIVER OF APPEAL, THE JUDGE SHOULD PLACE HIS OR HER REASONS ON THE RECORD SO THE DEMAND IS NOT SEEN AS A TOOL FOR AVOIDING APPELLATE REVIEW; THE JUDGE-DEMANDED WAIVER WAS NOT ENFORCED IN THIS CASE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Scheinkman, determined defendant’s waiver of appeal was not enforceable for two reasons: (1) the waiver was demanded by the judge, not the People; and (2) the waiver was demanded after the guilty plea and the sentence promise (therefore defendant did not receive a material benefit from the waiver). The court noted that a waiver demanded by a judge could be seen a tool for avoiding appellate review. Therefore, the Second Department held the judge should put his or her reasons for demanding a waiver on the record. Turning to the merits, the Second Department affirmed the conviction:

We do not foreclose the possibility that there may be circumstances where the trial court has a legitimate interest in conditioning its acceptance of a plea and determination of a sentence upon an appeal waiver that the prosecution has not requested. While the prosecution need not articulate any reason for including a demand for an appeal waiver in its settlement offer, where it is the court that makes the demand, the court should articulate on the record its reasons for doing so in order to dispel any concern that the court’s demand is motivated solely as a means of avoiding appellate review of its decisions. Here, the Supreme Court did not set forth any reason for demanding an appeal waiver, and none is apparent on the record. Accordingly, we will not enforce the defendant’s purported waiver of the right to appeal. People v Sutton, 2020 NY Slip Op 03400, Second Dept 6-17-20

 

THE TWO COUNTS OF ROBBERY THIRD WERE CONCURRENT INCLUSORY COUNTS OF THE TWO COUNTS OF ROBBERY SECOND; CONVICTIONS ON THE ROBBERY SECOND COUNTS REQUIRED VACATION OF THE CONVICTIONS ON THE ROBBERY THIRD COUNTS AND THE RELATED SENTENCES (SECOND DEPT).

The Second Department noted that the two robbery third degree counts were concurrent inclusory counts of the two robbery second degree counts and must be dismissed:

 The two counts of robbery in the third degree were concurrent inclusory counts of the two counts of robbery in the second degree (see CPL 300.30[4]; People v Hutson, 43 AD3d 959, 959; People v Gibson, 295 AD2d 529, 530). A verdict of guilt upon the greater count is deemed a dismissal of every lesser count (see CPL 300.40[3]). Accordingly, we vacate the convictions of robbery in the third degree and the sentences imposed thereon, and dismiss those counts of the indictment … . People v Wingate, 2020 NY Slip Op 03398, Second Dept 6-17-20

 

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ALTHOUGH PLAINTIFF’S EXPERT, A GENERAL SURGEON, PROVIDED AN OPINION IN THE AREA OF INTERNAL MEDICINE, THE EXPERT’S AFFIRMATION DEMONSTRATED THE EXPERT WAS QUALIFIED TO OFFER THE OPINION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s expert’s affirmation raised a question of fact in this failure-to-diagnose medical malpractice case, even though the affirmation dealt with an area of medicine outside of the expert’s area of practice (general surgery):

… [T]he plaintiffs’ expert’s affirmation was not lacking in probative value because the plaintiffs’ expert was board certified in general surgery rather than internal medicine. A medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field; however, the expert must be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable … . “Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” … . “Where no such foundation is laid, the expert’s opinion is of no probative value'” … .

Here, the plaintiffs’ expert’s affirmation sufficiently established that the plaintiffs’ expert was possessed of the requisite skill, training, education, knowledge and experience from which it can be assumed that the opinion rendered was reliable … . In particular, the expert demonstrated that he was qualified to render an opinion regarding the symptomology of temporal arteritis, which he characterized as a relatively common disease of the arteries, and as to whether a proper examination and investigation of [the] symptoms was conducted in accordance with accepted medical practices. Kiernan v Arevalo-Valencia, 2020 NY Slip Op 03388, Second Dept 6-17-20

 

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PLAINTIFF WAS NOT BARRED FROM SEEKING RENT OVERCHARGES BASED UPON A 1986 RENT REDUCTION ORDER (SECOND DEPT).

he Second Department, reversing Supreme Court, determined plaintiff could seek rent overcharges based upon a 1986 rent reduction order:

… [T]he plaintif’s first cause of action to recover damages for rent overcharges based upon the May 1, 1986, rent reduction order was not barred by the then-applicable four-year statute of limitations and the “look-back rule,” precluding examination of the rental history prior to the four-year period preceding commencement of the action (see former Rent Stabilization Law of 1969 [Administrative Code of City of NY] § 26-516[a][2]; former CPLR 213-a; Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal, _____ NY3d _____, 2020 NY Slip Op 02127). Since rent reduction orders impose a continuing obligation on landlords, tenants are entitled to recover for any rent overcharges occurring during the applicable limitations period by reference to rent reduction orders that remain in effect during that period, even if the rent reduction order was initially issued outside the limitations period … . Santana v Fernandez, 2020 NY Slip Op 03383, Second Dept 6-17-20

 

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