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BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 AND DID NOT DEMONSTRATE IT HAD STANDING TO BRING THE FORECLOSURE ACTION, BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank was not entitled to summary judgment in this foreclosure action. The bank did not demonstrate compliance with the notice requirements of Real Property Actions and Proceedings Law (RPAPL) 1304:

In moving for summary judgment, the plaintiff submitted the affidavit of Timeka J. Motlow, a representative of its loan servicer, who stated that “[t]he records I have reviewed indicate that the attached 90-day pre-foreclosure notice was mailed to [the defendant] at the property address of the real estate at issue herein and to the last know address of the borrower(s).” However, Motlow did not have personal knowledge of the purported mailing and failed to make the requisite showing that she was familiar with the plaintiff’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” … .

Moreover, the plaintiff failed to establish, prima facie, that it had standing to commence the action … . U.S. Bank N.A. v Henderson, 2018 NY Slip Op 05071, Second Dept 7-5-18

​FORECLOSURE (BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 AND DID NOT DEMONSTRATE IT HAD STANDING TO BRING THE FORECLOSURE ACTION, BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 AND DID NOT DEMONSTRATE IT HAD STANDING TO BRING THE FORECLOSURE ACTION, BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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A TREE FELL ON THE CAR IN WHICH PLAINTIFF WAS A PASSENGER, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, TOWN DID NOT DEMONSTRATE IT HAD INSPECTED THE TREE AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant town’s motion for summary judgment in this tree-fall accident should not have been granted. Plaintiff alleged a tree near the roadway fell on the vehicle in which plaintiff was a passenger:

Municipalities have a duty to maintain their roadways in a reasonably safe condition, and this duty extends to trees adjacent to the road which could pose a danger to travelers … . Municipalities also possess a common-law duty to inspect trees adjacent to their roadways … .

Here, the Town did not establish its prima facie entitlement to judgment as a matter of law because it failed to demonstrate that it met its duty to inspect and maintain the subject tree, or that it lacked constructive notice of the alleged dangerous condition of the tree … . Schillaci v Town of Islip, 2018 NY Slip Op 05070, Second Dept 7-5-18

​NEGLIGENCE (MUNICIPAL LAW, A TREE FELL ON THE CAR IN WHICH PLAINTIFF WAS A PASSENGER, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, TOWN DID NOT DEMONSTRATE IT HAD INSPECTED THE TREE AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT))/MUNICIPAL LAW (NEGLIGENCE, TREES, ROADS AND HIGHWAYS, A TREE FELL ON THE CAR IN WHICH PLAINTIFF WAS A PASSENGER, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, TOWN DID NOT DEMONSTRATE IT HAD INSPECTED THE TREE AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT))/TREES (MUNICIPAL LAW, HIGHWAYS AND ROADS, A TREE FELL ON THE CAR IN WHICH PLAINTIFF WAS A PASSENGER, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, TOWN DID NOT DEMONSTRATE IT HAD INSPECTED THE TREE AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT))/HIGHWAYS AND ROADS (NEGLIGENCE, MUNICIPAL LAW, TREES, A TREE FELL ON THE CAR IN WHICH PLAINTIFF WAS A PASSENGER, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, TOWN DID NOT DEMONSTRATE IT HAD INSPECTED THE TREE AND DID NOT DEMONSTRATE A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT))

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PLANNING BOARD’S FINDING THE DEVELOPMENT PROJECT WOULD NOT HAVE SIGNIFICANT IMPACT ON THE ENVIRONMENT WAS ARBITRARY AND CAPRICIOUS, MATTER REMITTED FOR PREPARATION OF AN ENVIRONMENTAL IMPACT STATEMENT (SECOND DEPT)

The Second Department, reversing Supreme Court, determined the planning board’s finding that a multi-family housing project would not have a significant impart on the environment was arbitrary and capricious. The matter was remitted for preparation of an environmental impact statement:

… [T]he full Environmental Assessment Form (hereinafter EAF) prepared by the project sponsor indicated that the proposed action would affect, among other things, aesthetic and historic resources and the character of the existing community, and that the parcel’s forestation would be reduced from 2.75 acres to .30 acres. In issuing its negative declaration, the Planning Board listed approximately 29 reasons supporting its determination. The Planning Board noted that the project would not significantly impact the adjacent Dwight Street-Hooker Avenue Historic District (hereinafter the historic district). However, in making that determination, the Planning Board merely relied upon a letter from the New York State Office of Parks, Recreations and Historic Preservation, which stated only that the proposed action would not have an adverse impact on the historic district. Such a conclusory statement fails to fulfill the reasoned elaboration requirement of SEQRA … .

With regard to the impact on vegetation or fauna, the EAF contemplates the reduction of the 3.4-acre parcel’s forestation from 2.75 acres to .30 acres. However, the negative declaration inexplicably stated that “[t]he proposed action will not result in the removal or destruction of large quantities of vegetation or fauna.” In the context of this project, the level of deforestation is significant.

In light of the foregoing, it is clear that the proposed action may have significant adverse environmental impacts upon one or more areas of environmental concern… . Thus, the Planning Board’s issuance of a negative declaration was arbitrary and capricious. Matter of Peterson v Planning Bd. of the City of Poughkeepsie, 2018 NY Slip Op 05049, Second Dept 7-5-18

​ENVIRONMENTAL LAW (PLANNING BOARD’S FINDING THE DEVELOPMENT PROJECT WOULD NOT HAVE SIGNIFICANT IMPACT ON THE ENVIRONMENT WAS ARBITRARY AND CAPRICIOUS, MATTER REMITTED FOR PREPARATION OF AN ENVIRONMENTAL IMPACT STATEMENT (SECOND DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)  (PLANNING BOARD’S FINDING THE DEVELOPMENT PROJECT WOULD NOT HAVE SIGNIFICANT IMPACT ON THE ENVIRONMENT WAS ARBITRARY AND CAPRICIOUS, MATTER REMITTED FOR PREPARATION OF AN ENVIRONMENTAL IMPACT STATEMENT (SECOND DEPT))/LAND USE (PLANNING BOARD’S FINDING THE DEVELOPMENT PROJECT WOULD NOT HAVE SIGNIFICANT IMPACT ON THE ENVIRONMENT WAS ARBITRARY AND CAPRICIOUS, MATTER REMITTED FOR PREPARATION OF AN ENVIRONMENTAL IMPACT STATEMENT (SECOND DEPT))/ZONING  (PLANNING BOARD’S FINDING THE DEVELOPMENT PROJECT WOULD NOT HAVE SIGNIFICANT IMPACT ON THE ENVIRONMENT WAS ARBITRARY AND CAPRICIOUS, MATTER REMITTED FOR PREPARATION OF AN ENVIRONMENTAL IMPACT STATEMENT (SECOND DEPT))/ADMINISTRATIVE LAW (PLANNING BOARD’S FINDING THE DEVELOPMENT PROJECT WOULD NOT HAVE SIGNIFICANT IMPACT ON THE ENVIRONMENT WAS ARBITRARY AND CAPRICIOUS, MATTER REMITTED FOR PREPARATION OF AN ENVIRONMENTAL IMPACT STATEMENT (SECOND DEPT))

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PLANNING BOARD’S DENIAL OF A WETLAND CONTROL PERMIT AND SITE PLAN APPROVAL PROPERLY ANNULLED, THE DENIAL WAS A DEPARTURE FROM PRIOR DETERMINATIONS AND THE BOARD DID NOT SET FORTH FACTUAL REASONS FOR THE DEPARTURE (SECOND DEPT).

The Second Department determined the town planning board’s denial of petitioner’s application for a wetland control permit and site plan approval was properly annulled by Supreme Court. The planning board’s action departed from many prior determinations and the planning board did not set forth any factual reasons for the departure:

… ” [A] local planning board has broad discretion in reaching its determination on applications . . . and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary, or an abuse of discretion'”… . ” A decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious'” … . Where an agency reaches contrary results on substantially similar facts, it must provide an explanation … . “An agency’s failure to provide a valid and rational explanation for its departure from its prior precedent mandates reversal’ regardless of whether the record otherwise supports the determination” … .

Here, the Planning Board failed to set forth any factual basis in the determination as to why it was departing from numerous prior determinations that, for example, permitted larger encroachments into wetland and wetland buffer areas and permitted encroachments of the same or similar type into those areas within the immediate vicinity of the petitioner’s lot. The Planning Board’s belated effort to provide such distinctions are not properly before this Court … . Matter of Nicolai v McLaughlin, 2018 NY Slip Op 05046, Second Dept 7-5-18

​ADMINISTRATIVE LAW (ZONING,  PLANNING BOARD’S DENIAL OF A WETLAND CONTROL PERMIT AND SITE PLAN APPROVAL PROPERLY ANNULLED, THE DENIAL WAS A DEPARTURE FROM PRIOR DETERMINATIONS AND THE BOARD DID NOT SET FORTH FACTUAL REASONS FOR THE DEPARTURE (SECOND DEPT))/ENVIRONMENTAL LAW (PLANNING BOARD’S DENIAL OF A WETLAND CONTROL PERMIT AND SITE PLAN APPROVAL PROPERLY ANNULLED, THE DENIAL WAS A DEPARTURE FROM PRIOR DETERMINATIONS AND THE BOARD DID NOT SET FORTH FACTUAL REASONS FOR THE DEPARTURE (SECOND DEPT))/LAND USE (PLANNING BOARD’S DENIAL OF A WETLAND CONTROL PERMIT AND SITE PLAN APPROVAL PROPERLY ANNULLED, THE DENIAL WAS A DEPARTURE FROM PRIOR DETERMINATIONS AND THE BOARD DID NOT SET FORTH FACTUAL REASONS FOR THE DEPARTURE (SECOND DEPT))/WETLANDS (PLANNING BOARD’S DENIAL OF A WETLAND CONTROL PERMIT AND SITE PLAN APPROVAL PROPERLY ANNULLED, THE DENIAL WAS A DEPARTURE FROM PRIOR DETERMINATIONS AND THE BOARD DID NOT SET FORTH FACTUAL REASONS FOR THE DEPARTURE (SECOND DEPT))

QUESTION OF FACT WHETHER OPERATOR OF A SKATING RINK PROVIDED PROPER SUPERVISION AND THEREFORE WHETHER THE ASSUMPTION OF RISK DOCTRINE APPLIED, PLAINTIFF ALLEGED SHE WAS PUSHED TO THE ICE BY AN UNRULY SKATER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant town, owner-operator of a skating rink, did not eliminate all questions of fact about whether it provided proper supervision at the rink. Therefore there was a question of fact whether the doctrine of assumption of the risk applied. Plaintiff alleged she was pushed to the ice by an unruly skater:

Participants in sports or recreational activities “will not be deemed to have assumed . . . unreasonably increased risks” … . “Thus, where reckless behavior that is over and above the usual dangers inherent in the activity of skating is claimed to have caused the injury, the issue of whether the proprietor was negligent in supervising the skaters turns on whether the proprietor had sufficient notice of the allegedly reckless conduct so as to permit it to prevent the injury through the exercise of adequate supervision” … . “The duration and nature of the allegedly reckless conduct are factors that bear on this issue” … .

Here, the defendant failed to establish, prima facie, that the action was barred by the doctrine of primary assumption of risk … . The defendant’s submissions failed to eliminate all triable issues of fact as to whether the risk was unreasonably increased by the defendant’s alleged failure to properly supervise the skaters such that the doctrine of primary assumption of risk would not apply … . Laurent v Town of Oyster Bay, 2018 NY Slip Op 05028, Second Dept 7-5-18

​NEGLIGENCE (QUESTION OF FACT WHETHER OPERATOR OF A SKATING RINK PROVIDED PROPER SUPERVISION AND THEREFORE WHETHER THE ASSUMPTION OF RISK DOCTRINE APPLIED, PLAINTIFF ALLEGED SHE WAS PUSHED TO THE ICE BY AN UNRULY SKATER (SECOND DEPT))/ICE SKATING (QUESTION OF FACT WHETHER OPERATOR OF A SKATING RINK PROVIDED PROPER SUPERVISION AND THEREFORE WHETHER THE ASSUMPTION OF RISK DOCTRINE APPLIED, PLAINTIFF ALLEGED SHE WAS PUSHED TO THE ICE BY AN UNRULY SKATER (SECOND DEPT))/ASSUMPTION OF THE RISK (ICE-SKATING, QUESTION OF FACT WHETHER OPERATOR OF A SKATING RINK PROVIDED PROPER SUPERVISION AND THEREFORE WHETHER THE ASSUMPTION OF RISK DOCTRINE APPLIED, PLAINTIFF ALLEGED SHE WAS PUSHED TO THE ICE BY AN UNRULY SKATER (SECOND DEPT))/MUNICIPAL LAW (ICE-SKATING, QUESTION OF FACT WHETHER OPERATOR OF A SKATING RINK PROVIDED PROPER SUPERVISION AND THEREFORE WHETHER THE ASSUMPTION OF RISK DOCTRINE APPLIED, PLAINTIFF ALLEGED SHE WAS PUSHED TO THE ICE BY AN UNRULY SKATER (SECOND DEPT))/SUPERVISION (NEGLIGENCE, ICE-SKATING, QUESTION OF FACT WHETHER OPERATOR OF A SKATING RINK PROVIDED PROPER SUPERVISION AND THEREFORE WHETHER THE ASSUMPTION OF RISK DOCTRINE APPLIED, PLAINTIFF ALLEGED SHE WAS PUSHED TO THE ICE BY AN UNRULY SKATER (SECOND DEPT))

MOTION TO VACATE DEFAULT JUDGMENT MORE THAN A YEAR AFTER THE JUDGMENT WAS ENTERED SHOULD NOT HAVE BEEN GRANTED, ALTHOUGH THE COURT HAD THE POWER TO VACATE THE JUDGMENT IN THE INTEREST OF JUSTICE, DEFENDANT DID NOT OFFER A REASONABLE EXCUSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant nursing home’s motion to vacate a default judgment, made more than a year after the default judgment, should not have been granted. The nursing home did not offer a reasonable excuse:

A defendant moving pursuant to CPLR 5015(a)(1) to vacate a default in appearing or answering the complaint must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action … . “Such motion must be made within one year after service of a copy of the . . . order with written notice of its entry upon the moving party'” . “[A]lthough the Supreme Court has the inherent authority to vacate an order in the interest of justice even where the statutory one-year period under CPLR 5015(a)(1) has expired”… , here, the nursing home failed to demonstrate a reasonable excuse for its delay in moving to vacate the order … . In any event, the nursing home’s claim that its failure to appear or answer the complaint was caused by an internal mishandling of the pleadings was unsubstantiated and insufficient to constitute a reasonable excuse for its default … . Hairston v Marcus Garvey Residential Rehab Pavilion, Inc., 2018 NY Slip Op 05021, Second Dept 7-5-18

​CIVIL PROCEDURE (DEFAULT JUDGMENT, MOTION TO VACATE DEFAULT JUDGMENT MORE THAN A YEAR AFTER THE JUDGMENT WAS ENTERED SHOULD NOT HAVE BEEN GRANTED, ALTHOUGH THE COURT HAD THE POWER TO VACATE THE JUDGMENT IN THE INTEREST OF JUSTICE, DEFENDANT DID NOT OFFER A REASONABLE EXCUSE (SECOND DEPT))/CPLR 5015 (DEFAULT JUDGMENT, MOTION TO VACATE DEFAULT JUDGMENT MORE THAN A YEAR AFTER THE JUDGMENT WAS ENTERED SHOULD NOT HAVE BEEN GRANTED, ALTHOUGH THE COURT HAD THE POWER TO VACATE THE JUDGMENT IN THE INTEREST OF JUSTICE, DEFENDANT DID NOT OFFER A REASONABLE EXCUSE (SECOND DEPT)).DEFAULT JUDGMENT ( MOTION TO VACATE DEFAULT JUDGMENT MORE THAN A YEAR AFTER THE JUDGMENT WAS ENTERED SHOULD NOT HAVE BEEN GRANTED, ALTHOUGH THE COURT HAD THE POWER TO VACATE THE JUDGMENT IN THE INTEREST OF JUSTICE, DEFENDANT DID NOT OFFER A REASONABLE EXCUSE (SECOND DEPT))

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DEFENDANT’S WAIVER OF HIS RIGHT TO APPEAL DEEMED INVALID, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department determined defendant’s waiver of his right to appeal was invalid:

The Supreme Court did not provide the defendant with an explanation of the nature of the right to appeal or explain the consequences of waiving that right. In addition, nothing in the record shows that the defendant understood the distinction between the right to appeal and other trial rights forfeited incident to his plea of guilty… . While the defendant was represented by counsel during the plea proceedings, counsel did not participate during the proceedings other than to acknowledge to the court that he was the defendant’s attorney, and counsel did not sign the defendant’s written appeal waiver form. Furthermore, although the record on appeal reflects that the defendant signed the written appeal waiver form, a written waiver “is not a complete substitute for an on-the-record explanation of the nature of the right to appeal” … . The court’s colloquy amounted to nothing more than a simple confirmation that the defendant signed the waiver and a conclusory statement that the defendant understood the waiver or was executing it knowingly and voluntarily … . Under the circumstances here, we conclude that the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal … . People v Latham, 2018 NY Slip Op 04753, Second Dept 6-27-18

​CRIMINAL LAW (WAIVER OF APPEAL, DEFENDANT’S WAIVER OF HIS RIGHT TO APPEAL DEEMED INVALID, CRITERIA EXPLAINED (SECOND DEPT))/APPEALS (CRIMINAL LAW, WAIVER, DEFENDANT’S WAIVER OF HIS RIGHT TO APPEAL DEEMED INVALID, CRITERIA EXPLAINED (SECOND DEPT))/WAIVER OF APPEAL (CRIMINAL LAW,  DEFENDANT’S WAIVER OF HIS RIGHT TO APPEAL DEEMED INVALID, CRITERIA EXPLAINED (SECOND DEPT))

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TAXI LICENSES ARE NOT PROPERTY WITHIN THE MEANING OF THE GRAND LARCENY STATUTE, ALTHOUGH THE LEGAL INSUFFICIENCY ARGUMENT WAS NOT PRESERVED, DEFENDANT’S GRAND LARCENY CONVICTION WAS VACATED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department vacated defendant’s grand larceny conviction in the interest of justice because the licenses from the NYC Taxi and Limousine Commission (TLC) do not constitute “property” within the meaning of the grand larceny statute:

The defendant’s conviction of grand larceny in the third degree (Penal Law § 155.35[1]) was based on the alleged theft of licenses from the TLC. “A person is guilty of grand larceny in the third degree when he or she steals property and . . . when the value of the property exceeds three thousand dollars” … .. The licenses from the TLC are not considered “property” within the meaning of the statute … . Accordingly, although the defendant’s legal insufficiency claim is unpreserved for appellate review, we vacate his conviction of grand larceny in the third degree and the sentence imposed thereon, and dismiss that count of the indictment as a matter of discretion in the interest of justice … . People v Ishtiaq, 2018 NY Slip Op 04752,, Second Dept 6-27-18

​CRIMINAL LAW (GRAND LARCENY, TAXI LICENSES ARE NOT PROPERTY WITHIN THE MEANING OF THE GRAND LARCENY STATUTE, ALTHOUGH THE LEGAL INSUFFICIENCY ARGUMENT WAS NOT PRESERVED, DEFENDANT’S GRAND LARCENY CONVICTION WAS VACATED IN THE INTEREST OF JUSTICE (SECOND DEPT))/APPEALS (CRIMINAL LAW, TAXI LICENSES ARE NOT PROPERTY WITHIN THE MEANING OF THE GRAND LARCENY STATUTE, ALTHOUGH THE LEGAL INSUFFICIENCY ARGUMENT WAS NOT PRESERVED, DEFENDANT’S GRAND LARCENY CONVICTION WAS VACATED IN THE INTEREST OF JUSTICE (SECOND DEPT))/GRAND LARCENY (TAXI LICENSES ARE NOT PROPERTY WITHIN THE MEANING OF THE GRAND LARCENY STATUTE, ALTHOUGH THE LEGAL INSUFFICIENCY ARGUMENT WAS NOT PRESERVED, DEFENDANT’S GRAND LARCENY CONVICTION WAS VACATED IN THE INTEREST OF JUSTICE (SECOND DEPT))/TAXI LICENSES (CRIMINAL LAW, GRAND LARCENY, TAXI LICENSES ARE NOT PROPERTY WITHIN THE MEANING OF THE GRAND LARCENY STATUTE, ALTHOUGH THE LEGAL INSUFFICIENCY ARGUMENT WAS NOT PRESERVED, DEFENDANT’S GRAND LARCENY CONVICTION WAS VACATED IN THE INTEREST OF JUSTICE (SECOND DEPT))

FAILURE TO PROVIDE NOTICE TO COUNSEL OF THE CONTENTS OF JURY NOTES AND FAILURE TO MAKE A RECORD DEMONSTRATING MEANINGFUL NOTICE REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT).

The Second Department reversed defendant’s convictions and ordered a new trial because the trial judge failed to comply with the strict requirements surrounding providing notice to counsel of the contents of notes sent out by the jury:

Here, on the morning of the first day of deliberations, the Supreme Court received three notes from the jury requesting, among other things, “Judge’s reading of charges of 1st degree & the 4 things we must prove to reach a guilty [verdict] . . . Same thing for 2nd Degree . . . Definition of unreasonable doubt.” The jury also requested the transcript of the testifying accomplice’s testimony. The court did not read the contents of these notes into the record, and there is no indication in the record that the entire contents of the notes otherwise were shared with counsel. Rather, after receiving the notes, the court explained its intended responses to defense counsel and the prosecutor, and then, in the presence of the jury, provided a readback of the requested charges. * * *

Meaningful notice of the content of a jury note “means notice of the actual specific content of the jurors’ request” (People v O’Rama, 78 NY2d at 277…). Where the record fails to establish that the trial court provided counsel with “meaningful notice of the precise content of a substantive juror inquiry, a mode of proceedings error occurs, and reversal is therefore required even in the absence of an objection” … . Because the record here fails to establish that the Supreme Court provided counsel with meaningful notice of the precise content of the subject jury notes, we must reverse the defendant’s convictions and order a new trial. People v Gedeon, 2018 NY Slip Op 04751, Second Dept 6-27-18

​CRIMINAL LAW (JURY NOTES, FAILURE TO PROVIDE NOTICE TO COUNSEL OF THE CONTENTS OF JURY NOTES AND FAILURE TO MAKE A RECORD DEMONSTRATING MEANINGFUL NOTICE REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT))/JURY NOTES (CRIMINAL LAW, FAILURE TO PROVIDE NOTICE TO COUNSEL OF THE CONTENTS OF JURY NOTES AND FAILURE TO MAKE A RECORD DEMONSTRATING MEANINGFUL NOTICE REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT))/O’RAMA (JURY NOTES, FAILURE TO PROVIDE NOTICE TO COUNSEL OF THE CONTENTS OF JURY NOTES AND FAILURE TO MAKE A RECORD DEMONSTRATING MEANINGFUL NOTICE REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT))/CPL 310.30   (JURY NOTES, FAILURE TO PROVIDE NOTICE TO COUNSEL OF THE CONTENTS OF JURY NOTES AND FAILURE TO MAKE A RECORD DEMONSTRATING MEANINGFUL NOTICE REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT))

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COURT ATTORNEY REFEREE WAS NOT AUTHORIZED TO DETERMINE A CONTESTED FAMILY OFFENSE PETITION OR CUSTODY AND VISITATION ISSUES (SECOND DEPT).

The Second Department determined the court attorney referee was not authorized to determine a contested family offense petition or custody and visitation issues:

A referee derives authority from an order of reference by the court (see CPLR 4311, 4317…). Here, as correctly asserted by the mother, the order of reference did not authorize the Court Attorney Referee to hear and report or to hear and determine a contested family offense petition. The Court Attorney Referee therefore lacked jurisdiction to dismiss the mother’s family offense petition in this instance… . Accordingly, the family offense matter must be remitted to a judge of the Family Court for a new determination.

With respect to the determination of custody, the order of reference recited that, upon the parties’ stipulation, a court attorney referee is authorized to hear and determine the parties’ rights to custody of and visitation with the child, including the determination of motions and temporary orders of custody. Upon our review of the record, however, we find no indication that the parties stipulated to the reference in the manner prescribed by CPLR 2104, and, absent such stipulation, the Court Attorney Referee had the power only to hear and report her findings … . We further find that the mother did not consent to the reference merely by participating in the proceeding without expressing her desire to have the matter tried before a judge … . The order of reference must therefore be deemed an order to hear and report. Thus, the Court Attorney Referee had no jurisdiction to determine, but only to hear and report, with respect to the parties’ respective rights of custody and visitation … . Matter of Rose v Simon, 2018 NY Slip Op 04736, Second Dept 6-27-18

​FAMILY LAW (COURT ATTORNEY REFEREE WAS NOT AUTHORIZED TO DETERMINE A CONTESTED FAMILY OFFENSE PETITION OR CUSTODY AND VISITATION ISSUES (SECOND DEPT))/CIVIL PROCEDURE (FAMILY LAW, COURT ATTORNEY REFEREE WAS NOT AUTHORIZED TO DETERMINE A CONTESTED FAMILY OFFENSE PETITION OR CUSTODY AND VISITATION ISSUES (SECOND DEPT))/CPLR 4311, 4317, 2104 (FAMILY LAW, COURT ATTORNEY REFEREE WAS NOT AUTHORIZED TO DETERMINE A CONTESTED FAMILY OFFENSE PETITION OR CUSTODY AND VISITATION ISSUES (SECOND DEPT))/COURT ATTORNEY REFEREE (FAMILY LAW, COURT ATTORNEY REFEREE WAS NOT AUTHORIZED TO DETERMINE A CONTESTED FAMILY OFFENSE PETITION OR CUSTODY AND VISITATION ISSUES (SECOND DEPT))/REFEREES  (FAMILY LAW, COURT ATTORNEY REFEREE WAS NOT AUTHORIZED TO DETERMINE A CONTESTED FAMILY OFFENSE PETITION OR CUSTODY AND VISITATION ISSUES (SECOND DEPT))

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