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DEFENDANT WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA AND DID NOT HAVE A PRACTICAL ABILITY TO OBJECT, THEREFORE AN EXCEPTION TO THE PRESERVATION REQUIREMENT FOR APPEAL APPLIES, MATTER REMITTED TO ALLOW DEFENDANT TO MOVE TO WITHDRAW HIS PLEA (SECOND DEPT).

The Second Department determined the defendant was not informed of the deportation consequences of his guilty plea and therefore did not have the opportunity to move to withdraw his plea. Therefore a narrow exception to the preservation requirement applies and the matter was remitted to allow defendant to make the motion:

… [A] narrow exception to the preservation requirement exists “in rare cases where the defendant lacks a reasonable opportunity to object to a fundamental defect in the plea which is clear on the face of the record and to which the court’s attention should have been instantly drawn,’ such that the salutary purpose of the preservation rule is . . . not jeopardized'” … .

In this case, the exception applies. At the plea proceeding, the court merely asked defense counsel if he had discussed with the defendant the potential “immigration consequences” of pleading guilty. Defense counsel responded: “He is here on a Green Card. We have discussed the immigration consequences.” Furthermore, the People’s contention that the written appeal waiver form demonstrates that the defendant was aware of the possibility of deportation prior to the imposition of the sentence is without merit … . Inasmuch as the record does not demonstrate either that the Supreme Court mentioned, or that the defendant was otherwise aware of, the possibility of deportation, the defendant had “no practical ability” to object to the court’s statement or to otherwise tell the court, if he chose, that he would not have pleaded guilty if he had known about the possibility of deportation … . People v Mohamed, 2019 NY Slip Op 02557, Second Dept 4-3-19

 

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ANONYMOUS TIP ALLEGING SUSPICIOUS BEHAVIOR BY MEN WEARING HOODIES GOING IN AND OUT OF A U-HAUL TRUCK DID NOT JUSTIFY PULLING OVER A U-HAUL TRUCK DRIVEN BY A MAN WEARING A HOODIE, WEAPON FOUND IN THE TRUCK SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined that the anonymous tip that persons were acting suspicious going in and out of a U-Haul truck and that one of the persons was wearing a brown hoodie did not justify pulling over a U-Haul truck driven by a man wearing a brown hoodie. The weapon found in the truck after the traffic stop should have been suppressed:

… [T]he police lacked reasonable suspicion to stop the vehicle based only on the anonymous tip of men “suspiciously” going in and out of a U-Haul truck, because the tip was insufficient to create reasonable suspicion that the individuals described were engaging in criminal activity … . The characteristics described in the anonymous tip were readily observable, and the behavior of the individuals described in the tip was consistent with the ordinary use of a U-Haul truck, as the tipster failed to identify what made the behavior suspicious for burglary … . Additionally, the tip “lacked predictive information” and was uncorroborated by the officers, as the U-Haul truck was not at the reported location when the officers arrived … . Accordingly, the information that the police received from the anonymous informant, even coupled with the officers’ own observations, did not provide them with reasonable suspicion to make an investigatory stop … . People v Floyd, 2019 NY Slip Op 02546, Second Dept 4-3-19

 

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ANGRY REMARK MADE TO PROBATION OFFICER DID NOT CONSTITUTE OBSTRUCTION OF GOVERNMENTAL ADMINISTRATION, PROBATION SHOULD NOT HAVE BEEN REVOKED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s angry remark made to the probation officer (threatening to “blow her up”) was not a crime and therefore did not justify the revocation of probation and incarceration (defendant has served his sentence):

A person is guilty of obstructing governmental administration in the second degree when “he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act” (Penal Law § 195.05). “The plain meaning of the statute and the accompanying commentary clearly demonstrate that the mens rea of this crime is an intent to frustrate a public servant in the performance of a specific function” … . Although the evidence at the hearing demonstrated that the probation officer was at work, there was no evidence to show that the defendant attempted to prevent her from performing a specific function. The defendant’s angry outburst, without more, was insufficient to establish a violation of Penal Law § 195.05. Thus, the Supreme Court’s finding that the defendant violated a condition of his probation by failing to lead a law-abiding life is not supported by a preponderance of the evidence … . People v Brooks, 2019 NY Slip Op 02539, Second Dept 4-3-19

 

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FAMILY COURT PROPERLY TRANSFERRED THIS DERIVATIVE NEGLECT PROCEEDING TO THE UNKECHAUG INDIAN NATION PURSUANT TO THE INDIAN CHILD WELFARE ACT (ICWA) (SECOND DEPT).

The Second Department determined Family Court properly transferred the derivative neglect proceeding to the Unkechaug Indian Nation pursuant to the Indian Child Welfare Act (ICWA):

The ICWA provides that “the Indian custodian of the child and the Indian child’s tribe shall have a right to intervene at any point” in a proceeding to which the ICWA applies … . Congress authorized the Department of the Interior, Bureau of Interior Indian Affairs (hereinafter the DOI), to promulgate rules and regulations “as may be necessary to carry out the provisions of [ICWA]” … . The current regulations define the term “child-custody proceeding” as “any action, other than an emergency proceeding, that may culminate in” foster-care placement, termination of parental rights, preadoptive placement, and adoptive placement … . “An action that may culminate in one of these four outcomes is considered a separate child-custody proceeding from an action that may culminate in a different one of these four outcomes” … . The DOI explained that “[t]he final rule uses the phrase may culminate in one of the following outcomes,’ rather than the less precise phrase involves,’ used in the draft rule, in order to make clear that ICWA requirements would apply to an action that may result in one of the placement outcomes, even if it ultimately does not. For example, ICWA would apply to an action where a court was considering a foster-care placement of a child, but ultimately decided to return the child to his parents. Thus, even though the action did not result in a foster-care placement, it may have culminated in such a placement and, therefore, should be considered a child-custody proceeding’ under the statute” … . Matter of Dupree M. (Samantha Q.), 2019 NY Slip Op 02523, Second Dept 4-3-19

 

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PETITION SEEKING A STAY OF ARBITRATION AND A FRAMED-ISSUE HEARING ON WHETHER THE TRAFFIC ACCIDENT WAS STAGED SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the petition to temporarily stay arbitration of the claim for uninsured motorist benefits pending a framed-issue hearing addressing whether the collision was an accident or intentional should have been granted. The insurer, Global, presented evidence the traffic accident involving an uninsured vehicle was staged. The injured passenger, Eveillard, submitted sufficient evidence to rebut the insurer’s position:

As the party seeking a stay of arbitration based upon a lack of coverage, Global bore the initial burden of “showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay” … . Here, contrary to the Supreme Court’s determination … , Global set forth evidentiary facts and submitted documentary evidence sufficient to establish a preliminary issue as to whether the collision giving rise to the claim for uninsured motorist benefits was an accident or an intentional act orchestrated, in part, by Eveillard … . Since Eveillard submitted evidence sufficient to rebut Global’s evidentiary showing, a temporary stay of arbitration pending a framed-issue hearing is warranted … .

… Supreme Court should have granted that branch of the petition which was to temporarily stay arbitration of the claim for uninsured motorist benefits pending a framed-issue hearing as to whether the collision was the result of a covered accident or an intentional act, and we remit the matter to the Supreme Court … for a hearing on the issue of insurance coverage and a new determination thereafter on that branch of the petition which was to permanently stay arbitration. Matter of Global Liberty Ins. Co. v Eveillard, 2019 NY Slip Op 02521, Second Dept 4-3-19

 

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ATTORNEY WHO DRAFTED THE 2005 WILL APPOINTING THE ATTORNEY AS EXECUTOR WAS REQUIRED TO HAVE THE TESTATOR ACKNOWLEDGE THE TESTATOR HAD BEEN INFORMED THAT FAILURE TO COMPLY WITH THE DISCLOSURE REQUIREMENTS WOULD RESULT IN THE ATTORNEY-EXECUTOR’S ENTITLEMENT TO ONLY ONE-HALF THE STATUTORY EXECUTOR’S COMMISSIONS (SECOND DEPT).

The Second Department, resolving a split among Surrogate’s Courts, determined that the attorney who drafted the 2005 will appointing himself as executor was required to have the testator sign an acknowledgment the testator had been informed that the failure to comply with statutory disclosure requirements would result in the attorney-executor being entitled to only one-half of the statutory executor’s commissions:

The 2004 amendment [of Surrogate’s Court Procedure Act (SCPA) 2307-a] was intended, as reflected in both its text and in its legislative history, to require that the testator be informed that, absent the testator’s acknowledgment of receipt of the required disclosures, the attorney-executor would receive only one-half of the commissions otherwise payable. That the Legislature inadvertently included this fourth disclosure requirement only in model forms and not in the subdivision dealing directly with the required disclosures was an oversight, as is confirmed by the 2007 amendment and its legislative history … . …

At bar, the instrument signed by the testator in 2005 did not include an acknowledgment that he had been informed that the failure to comply with the disclosure requirements would result in the attorney-executor being entitled to only one-half of the statutory executor’s commissions. Therefore, we agree with the Surrogate’s Court’s determination that the petitioner is entitled to only one-half of the statutory executor’s commissions … . Matter of Brier, 2019 NY Slip Op 02516, Second Dept 4-3-19

 

PETITION SEEKING TO INVALIDATE THE ORGANIZATIONAL MEETING OF THE SUFFOLK COUNTY COMMITTEE OF THE CONSERVATIVE PARTY SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition seeking to invalidate the organizational meeting of the Suffolk County Committee of the Conservative Party should have been denied. The decision is fact specific and deals with many Election Law procedural issues that cannot be fairly summarized here:

… [W]e are mindful that “a court’s jurisdiction to intervene in election matters is limited to the powers expressly conferred by statute” … . The ” internal issues arising within political parties are best resolved within the party organization itself and judicial involvement should only be undertaken as a last resort'” … . While the courts “will act to protect the rights of committee persons to be present and to vote at meetings of the committee” … , ” [j]udicial intervention is only warranted upon a clear showing that a party or its leaders have violated [the Election Law] or the party’s own rules adopted in accordance with law, or otherwise [have] violat[ed] the rights of party members or the electorate'” … . No such showing was made in this case. Matter of Auerbach v Suffolk County Comm. of the Conservative Party, 2019 NY Slip Op 02515, Second Dept 4-3-19

 

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NOTE HOLDER’S COMPLIANCE WITH NOTICE REQUIREMENTS OF RPAPL 1304 NOT DEMONSTRATED, MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined respondent (the holder of the note) did not demonstrate compliance with the notice provisions of RPAPL 1304. Therefore respondent’s motion for summary judgment in this foreclosure action should not have been granted:

“[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition” … . “The statute requires that such notice . . . be sent by registered or certified mail, and also by first-class mail, to the last known address of the borrower” … . …

The respondent, which submitted only a copy of the required notice, and did not submit any evidence that the notice was mailed in the manner required by the statute, failed to meet its prima facie burden with respect to the notice requirements of RPAPL 1304. Specifically, the respondent did not submit “an affidavit of service, [or] proof of mailing by the post office evincing that it properly served the defendant pursuant to RPAPL 1304 [by registered or certified mail and also by first-class mail to his last known address]” … , or “proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure” … . Marchai Props., L.P. v Fu, 2019 NY Slip Op 02511, Second Dept 4-3-19

 

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NO PRIVATE RIGHT OF ACTION UNDER NEW YORK’S MENTAL HEALTH PARITY LAW (TIMOTHY’S LAW) (SECOND DEPT).

The Second Department determined that New York’s mental health parity law (Timothy’s Law, Insurance Law 3221(1)(5) and 4303(g)) did not create a private right of action over and above the administrative enforcement provisions. Plaintiff alleged the health insurance benefits administered by defendants were far more restrictive for mental health than for general medical claims:

… [T]he Court of Appeals has held that ” regardless of its consistency with the basic legislative goal, a private right of action should not be judicially sanctioned if it is incompatible with the enforcement mechanism chosen by the Legislature or with some other aspect of the over-all statutory scheme'” … . Thus, where “the legislature clearly contemplated administrative enforcement of the statute, “[t]he question then becomes whether, in addition to administrative enforcement, an implied private right of action would be consistent with the legislative scheme”‘” …  . …

… .[D]eterminations of whether the law had been violated require[] complex, fact-based determinations about medical necessity, and DFS [NYS Department of Financial Services] had implemented a comprehensive system to evaluate appeals following denials of coverage  … . … “[A]llowing people to litigate these issues in court might yield duplicative or inconsistent results” … . Kamins v United Healthcare Ins. Co. of N.Y., Inc., 2019 NY Slip Op 02507, Second Dept 4-3-19

 

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ALTHOUGH PLAINTIFFS APPEARED FOR THE 50-h HEARING, PLAINTIFFS’ ATTORNEY REFUSED TO LET THE PLAINTIFFS TESTIFY UNLESS EACH PLAINTIFF COULD HEAR THE OTHER’S TESTIMONY, BECAUSE THE 50-h HEARING IS A CONDITION PRECEDENT TO BRINGING SUIT, PLAINTIFFS’ LAWSUIT WAS PROPERLY PRECLUDED (SECOND DEPT).

The Second Department, over a two-justice dissent, determined that plaintiffs were precluded from proceeding with the lawsuit because, although plaintiffs appeared for the 50-h hearing, plaintiffs attorney refused to participate in the 50-h hearing unless each plaintiff was present when the other testified. The majority held that the 50-h hearing is a condition precedent to any lawsuit and the statute does not create a right for plaintiff’s to be present for each other’s testimony at the hearing:

The purpose of General Municipal Law § 50-h is to enable a municipality to make a prompt investigation of the circumstances of a claim by examining the claimant about the facts of the claim … . The oral examination of a claimant pursuant to General Municipal Law § 50-h serves to supplement the notice of claim and provides an investigatory tool to the municipality, with a view toward settlement … . “Compliance with a demand for a General Municipal Law § 50-h examination is a condition precedent to the commencement of an action against a municipal defendant, and the failure to so comply warrants dismissal of the action” … . “A party who has failed to comply with a demand for examination pursuant to General Municipal Law § 50-h is precluded from commencing an action against a municipality” … . …

” [A] court cannot amend a statute by inserting words that are not there, nor will a court read into a statute a provision which the Legislature did not see fit to enact'”  … . Moreover, “[i]n the construction of statutes, each word or phrase in the enactment must be given its appropriate meaning” … , which is in derogation of the common law, is to be strictly construed  … . In strictly construing a statute, courts “will not go beyond the clearly expressed provisions of the act” … . Colon v Martin, 2019 NY Slip Op 02312, Second Dept 3-27-19

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