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NOTICE OF APPEARANCE FILED ON BEHALF OF DEFENDANT BEFORE DEFENDANT WAS MADE A PARTY WAIVED ANY SUBSEQUENT LACK-OF-PERSONAL-JURISDICTION DEFENSE.

The Second Department determined a notice of appearance filed on behalf of a defendant (Dariusz Lojek) before he was made a party waived any subsequent defense alleging lack of personal jurisdiction. The subsequent amended summons and complaint naming Lojek as a party was deemed a nullity. After the statute of limitations passed, Lojek moved to dismiss:

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On August 22, 2011, the plaintiff commenced this action to recover damages for personal injuries against Asconcio, Inter Euro, Darek Cake Company, and the Grimaldi Bakery Co. Dariusz Lojek, the principal of both Inter Euro and Darek Cake, Inc., was not initially named as a defendant in the action. However, on June 20, 2012, Dariusz Lojek’s attorney filed a notice of appearance on his behalf, and demanded “that all Notices and Demands in this action be served upon the undersigned attorney at the address set forth below.” In a letter to the attorneys for the plaintiff and the defendants in the action, Dariusz Lojek’s attorney asked for “copies of any legal papers which you may have already filed in this action,” and requested to be advised of “pending appearances.”

Over three months later, on September 24, 2012, the plaintiff filed a supplemental summons and amended complaint deleting the defendant Grimaldi Bakery Co. from the caption, correcting the name of the defendant Darek Cake Company to Darek Cake, Inc., and adding Marzena Lojek and Dariusz Lojek, the alleged principals of Inter Euro and Darek Cake, Inc., as defendants in the action. Darek Cake, Inc., Marzena Lojek, and Dariusz Lojek were served with the supplemental summons and amended complaint in December 2012. …

Since the plaintiff failed to obtain leave of court or a stipulation between the parties before serving and filing the supplemental summons and amended complaint, that service may be deemed a nullity, and the amended complaint dismissed insofar as asserted against the additional parties for lack of personal jurisdiction … .

However, lack of personal jurisdiction may be waived … . Under the circumstances of this case, by his appearance in June 2012 and his voluntary participation in the action, Dariusz Lojek submitted to the jurisdiction of the court and waived any defense of lack of personal jurisdiction within the applicable statute of limitations … . Jaramillo v Asconcio, 2017 NY Slip Op 05073, 2nd Dept 6-21-17

 

CIVIL PROCEDURE (NOTICE OF APPEARANCE, WAIVER OF DEFENSES, NOTICE OF APPEARANCE FILED ON BEHALF OF DEFENDANT BEFORE DEFENDANT WAS MADE A PARTY WAIVED ANY SUBSEQUENT LACK-OF-PERSONAL-JURISDICTION DEFENSE)/ATTORNEYS (NOTICE OF APPEARANCE, WAIVER OF DEFENSES, NOTICE OF APPEARANCE FILED ON BEHALF OF DEFENDANT BEFORE DEFENDANT WAS MADE A PARTY WAIVED ANY SUBSEQUENT LACK-OF-PERSONAL-JURISDICTION DEFENSE)/NOTICE OF APPEARANCE (WAIVER OF JURISDICTIONAL DEFENSE,  NOTICE OF APPEARANCE FILED ON BEHALF OF DEFENDANT BEFORE DEFENDANT WAS MADE A PARTY WAIVED ANY SUBSEQUENT LACK-OF-PERSONAL-JURISDICTION DEFENSE)

FURTHER LAWSUITS BETWEEN HUSBAND AND WIFE PROPERLY PROHIBITED BY THE COURT.

The Second Department determined it was appropriate to prohibit further lawsuits in this long-standing series of actions between husband and wife:

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The plaintiff appeals from the denial of that branch of his motion which was to enjoin the defendants from commencing any new litigation against, or engaging in any applications or motion practice in existing actions involving, the plaintiff, his medical practice, his wife, Janet Rugg Lew, or his counsel, Wand & Goody, LLP, without prior written permission of the Supreme Court. Although public policy generally mandates free access to the courts, a party may forfeit that right if he or she abuses the judicial process by engaging in vexatious litigation … . Here, the record reflects that both the plaintiff and the defendants have engaged in extensive vexatious litigation against each other in the Family Court and the Supreme Court from 2003 to the present. Under the circumstances of this case, it would only be appropriate to enjoin the defendants from engaging in further litigation if the plaintiff was enjoined as well. Accordingly, we reverse the order entered September 3, 2014, insofar as appealed from, and grant the subject branch of the plaintiff’s motion on condition that he stipulate that he be likewise enjoined from commencing any new litigation against the defendants or engaging in any applications or motion practice in existing actions involving the defendants without written permission of the Supreme Court. If the plaintiff does not so stipulate and serve and file such stipulation in accordance with the terms of this order, then we affirm the order insofar as appealed from. Lew v Sobel, 2017 NY Slip Op 05076, 2nd Dept 6-21-17

CIVIL PROCEDURE (FURTHER LAWSUITS BETWEEN HUSBAND AND WIFE PROPERLY PROHIBITED BY THE COURT)/VEXATIOUS LITIGATION (CIVIL PROCEDURE, FURTHER LAWSUITS BETWEEN HUSBAND AND WIFE PROPERLY PROHIBITED BY THE COURT)

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CITY DID NOT DEMONSTRATE ABSENCE OF WRITTEN NOTICE OF THE POTHOLE WHERE PLAINTIFF SLIPPED AND FELL, PROPERTY OWNER DID NOT DEMONSTRATE THE AREA WHERE PLAINTIFF FELL WAS NOT SUBJECT TO THE OWNER’S SPECIAL USE, DEFENDANTS’ SUMMARY JUDGMENT MOTIONS SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined the city did not demonstrate it did not have notice of the pothole which caused plaintiff to slip and fall, and the abutting property owner did not demonstrate it did not have a special use of the area. Therefore neither the city’s nor the property owner’s motion for summary judgment should have been granted:

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The City failed to establish, prima facie, the absence of a written acknowledgment of the alleged dangerous condition. Documents produced by the City’s Department of Transportation demonstrated that the City acknowledged in writing that a pothole existed in the vicinity of the plaintiff’s accident … . Any dispute as to the precise location of the noticed pothole is a question of fact for the jury … . …

Likewise, the owner failed to meet her prima facie burden. Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk or street “is placed on the municipality and not the abutting landowner”… . However, liability may be imposed on an abutting property owner where, inter alia, the owner of the abutting property caused the condition to occur through a special use of that area… . Here, the owner failed to demonstrate, prima facie, that she did not cause the alleged condition to occur because of some special use. The record establishes that the area where the plaintiff was injured was at the dead-end of Atkins Avenue, which was bordered on each side by Arlington Village apartment buildings. Indeed, part of Atkins Avenue is used for a parking lot solely for the benefit of Arlington Village tenants. The parking lot is partitioned from Atkins Avenue by chain link fencing and a gate maintained by the owner. The garbage dumpsters maintained for use by the tenants of Arlington Village are kept in the parking lot. There are no sidewalks in the dead-end area of Atkins Avenue. Accordingly, the roadway was used by tenants and employees of Arlington Village as a walkway, as a driveway for their vehicles, and as a driveway and walkway to access the adjacent parking lot and the garbage dumpsters. Thus, the owner failed to establish, prima facie, that she did not derive a special use from the area which contained the defect. Furthermore, “[w]hether an entity is liable for creating a defect as a special user is generally a question for the jury” … . Llanos v Stark, 2017 NY Slip Op 04828, 2nd Dept 6-14-17

 

NEGLIGENCE (SLIP AND FALL, MUNICIPAL LAW, SPECIAL USE, CITY DID NOT DEMONSTRATE ABSENCE OF WRITTEN NOTICE OF THE POTHOLE WHERE PLAINTIFF SLIPPED AND FELL, PROPERTY OWNER DID NOT DEMONSTRATE THE AREA WHERE PLAINTIFF FELL WAS NOT SUBJECT TO THE OWNER’S SPECIAL USE, DEFENDANTS’ SUMMARY JUDGMENT MOTIONS SHOULD NOT HAVE BEEN GRANTED)/MUNICIPAL LAW (SLIP AND FALL, WRITTEN NOTICE, CITY DID NOT DEMONSTRATE ABSENCE OF WRITTEN NOTICE OF THE POTHOLE WHERE PLAINTIFF SLIPPED AND FELL, PROPERTY OWNER DID NOT DEMONSTRATE THE AREA WHERE PLAINTIFF FELL WAS NOT SUBJECT TO THE OWNER’S SPECIAL USE, DEFENDANTS’ SUMMARY JUDGMENT MOTIONS SHOULD NOT HAVE BEEN GRANTED)/WRITTEN NOTICE REQUIREMENT (SLIP AND FALL, MUNICIPAL LAW,  CITY DID NOT DEMONSTRATE ABSENCE OF WRITTEN NOTICE OF THE POTHOLE WHERE PLAINTIFF SLIPPED AND FELL, PROPERTY OWNER DID NOT DEMONSTRATE THE AREA WHERE PLAINTIFF FELL WAS NOT SUBJECT TO THE OWNER’S SPECIAL USE, DEFENDANTS’ SUMMARY JUDGMENT MOTIONS SHOULD NOT HAVE BEEN GRANTED)/SPECIAL USE (SLIP AND FALL, PROPERTY OWNER DID NOT DEMONSTRATE THE AREA WHERE PLAINTIFF FELL WAS NOT SUBJECT TO THE OWNER’S SPECIAL USE, DEFENDANTS’ SUMMARY JUDGMENT MOTIONS SHOULD NOT HAVE BEEN GRANTED)

PROOF OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE WATER WHERE PLAINTIFF SLIPPED AND FELL, DEFENDANT’S SUMMARY JUDGMENT MOTION PROPERLY DENIED.

The Second Department determined defendant did not demonstrate it lacked constructive notice of the water where plaintiff slipped and fell. Proof of general cleaning practices is not enough:

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The defendants failed to demonstrate, prima facie, that they lacked notice of the alleged water on the stairs so as to establish their entitlement to judgment as a matter of law … . A defendant has constructive notice of a dangerous condition when the condition has been visible and apparent long enough for the defendant to have discovered and remedied it … .

Here, the defendants did not submit any evidence regarding specific cleaning or inspection of the area in question, or any other affirmative proof to demonstrate how long the condition had existed. Rather, they merely provided evidence regarding the general cleaning practices and inspection procedures employed by the building superintendent, which is insufficient to establish a lack of constructive notice … . Further, the defendants’ contention that the “water could have been deposited there only minutes or seconds before the alleged fall” is pure speculation, and the defendants cannot satisfy their initial burden on summary judgment merely by pointing to gaps in the plaintiff’s case … . Lebron v 142 S 9, LLC, 2017 NY Slip Op 04827, 2nd Dept 6-14-17

 

NEGLIGENCE (PROOF OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE WATER WHERE PLAINTIFF SLIPPED AND FELL, DEFENDANT’S SUMMARY JUDGMENT MOTION PROPERLY DENIED)/SLIP AND FALL (CONSTRUCTIVE NOTICE, PROOF OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE WATER WHERE PLAINTIFF SLIPPED AND FELL, DEFENDANT’S SUMMARY JUDGMENT MOTION PROPERLY DENIED)/CONSTRUCTIVE NOTICE (SLIP AND FALL, PROOF OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE WATER WHERE PLAINTIFF SLIPPED AND FELL, DEFENDANT’S SUMMARY JUDGMENT MOTION PROPERLY DENIED)/GENERAL CLEANING PRACTICES (SLIP AND FALL, CONSTRUCTIVE NOTICE, (PROOF OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE WATER WHERE PLAINTIFF SLIPPED AND FELL, DEFENDANT’S SUMMARY JUDGMENT MOTION PROPERLY DENIED)

SMALL DECORATIVE LANDSCAPING STONES ON THE PARKING LOT WERE OPEN AND OBVIOUS, SLIP AND FALL COMPLAINT PROPERLY DISMISSED.

The Second Department determined small decorative stones (used for landscaping), two or three of which were on the parking lot where plaintiff slipped and fell, constituted an open and obvious condition which was not actionable:

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The [defendant] Olive Garden used small decorative stones outside as part of its landscaping, and the plaintiff alleged that two or three of the stones were in the parking lot. After exiting the Olive Garden at approximately 1:00 p.m. on June 17, 2008, the plaintiff walked to the parking lot toward her car, but fell before reaching it. She alleged that her fall resulted from stepping on one of the Olive Garden’s stones.

The Olive Garden made a prima facie showing that the complained-of condition was both open and obvious, i.e., readily observable by those employing the reasonable use of their senses, and not inherently dangerous … . In opposition, the plaintiff failed to raise a triable issue of fact. Lawrence v Darden Rests., Inc., 2017 NY Slip Op 04826, 2nd Dept 6-14-17

 

NEGLIGENCE (SLIP AND FALL, SMALL DECORATIVE LANDSCAPING STONES ON THE PARKING LOT WERE OPEN AND OBVIOUS, SLIP AND FALL COMPLAINT PROPERLY DISMISSED)/SLIP AND FALL (SMALL DECORATIVE LANDSCAPING STONES ON THE PARKING LOT WERE OPEN AND OBVIOUS, SLIP AND FALL COMPLAINT PROPERLY DISMISSED)/OPEN AND OBVIOUS (SLIP AND FALL, SMALL DECORATIVE LANDSCAPING STONES ON THE PARKING LOT WERE OPEN AND OBVIOUS, SLIP AND FALL COMPLAINT PROPERLY DISMISSED)

PLAINTIFFS, PASSENGERS IN DEFENDANT’S CAR, ENTITLED TO SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE, DESPITE DEFENDANT’S CLAIM THAT THE CAR AHEAD STOPPED SUDDENLY FOR NO REASON.

The Second Department determined defendant did not raise a question of fact in this rear-end collision case. Although defendant (Alvarez) claimed Cristea’s) car stopped suddenly for no apparent reason, defendant acknowledged Cristea’s car was stopped at the time of the collision and defendant did not see the car until the collision. Plaintiffs, who were passengers in defendant Alvarez’s car, entitled to summary judgment:

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A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . While a nonnegligent explanation for a rear-end collision may include evidence of a sudden stop of the lead vehicle, vehicle stops which are foreseeable under the prevailing traffic conditions must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her vehicle and the vehicle ahead … .

Here, Cristea established his prima facie entitlement to judgment as a matter of law by submitting evidence that he was not at fault in the happening of the accident … . Cristea submitted the deposition testimony of the parties, which demonstrated that Cristea’s vehicle was stopped when it was struck in the rear by Alvarez’s vehicle. Although Alvarez testified that Cristea’s vehicle braked suddenly, he admitted that Cristea’s vehicle was stopped at the time of impact, and that he did not see Cristea’s vehicle until he hit it. Under these circumstances, Alvarez’s claim that Cristea’s vehicle braked suddenly did not raise a triable issue fact as to whether any negligence on the part of Cristea contributed to the accident … . Gonzalez v Alvarez, 2017 NY Slip Op 04819, 2nd Dept 6-14-1

 

NEGLIGENCE (REAR-END COLLISIONS, PLAINTIFFS, PASSENGERS IS DEFENDANT’S CAR, ENTITLED TO SUMMARY JUDGEMENT IN THIS REAR-END COLLISION CASE, DESPITE DEFENDANT’S CLAIM THAT THE CAR AHEAD STOPPED SUDDENLY FOR NO REASON)/TRAFFIC ACCIDENTS (REAR-END COLLISIONS, PLAINTIFFS, PASSENGERS IS DEFENDANT’S CAR, ENTITLED TO SUMMARY JUDGEMENT IN THIS REAR-END COLLISION CASE, DESPITE DEFENDANT’S CLAIM THAT THE CAR AHEAD STOPPED SUDDENLY FOR NO REASON)/REAR-END COLLISIONS (PLAINTIFFS, PASSENGERS IS DEFENDANT’S CAR, ENTITLED TO SUMMARY JUDGEMENT IN THIS REAR-END COLLISION CASE, DESPITE DEFENDANT’S CLAIM THAT THE CAR AHEAD STOPPED SUDDENLY FOR NO REASON)

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FAMILY COURT DID NOT MAKE SURE APPELLANT UNDERSTOOD THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL IN THIS ORDER OF PROTECTION MATTER, ORDER OF PROTECTION REVERSED.

The Second Department determined Family Court did not make sure appellant under stood the consequences of proceeding without counsel in this order of protection matter:

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A party in a proceeding pursuant to Family Court Act article 8 has the right to be represented by counsel… . A party, however, may waive that right, provided that he or she does so knowingly, voluntarily, and intelligently … . To ensure that a party’s waiver of the right to counsel is valid, the Family Court must conduct a “searching inquiry”… . There is no rigid formula, but the record must demonstrate that the party has chosen to proceed without counsel despite being aware of and understanding the dangers and disadvantages of doing so … .

Here, when the appellant expressed his desire to proceed without counsel, the Family Court tried to explain the dangers and disadvantages of doing so. The record shows, however, that the appellant was confused by the colloquy and did not comprehend the court’s explanation. The court nevertheless permitted him to proceed without counsel … . The deprivation of a party’s right to counsel guaranteed by Family Court Act § 262 requires reversal without regard to the merits of the unrepresented party’s position … . Matter of Gugliara v Gugliara, 2017 NY Slip Op 04840, 2nd Dept 6-14-17

 

FAMILY LAW (RIGHT TO COUNSEL, ORDER OF PROTECTION, FAMILY COURT DID NOT MAKE SURE APPELLANT UNDERSTOOD THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL IN THIS ORDER OF PROTECTION MATTER, ORDER OF PROTECTION REVERSED)/ATTORNEYS (FAMILY LAW, RIGHT TO COUNSEL, ORDER OF PROTECTION,  FAMILY COURT DID NOT MAKE SURE APPELLANT UNDERSTOOD THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL IN THIS ORDER OF PROTECTION MATTER, ORDER OF PROTECTION REVERSED)/ORDER OF PROTECTION (FAMILY LAW, RIGHT TO COUNSEL, FAMILY COURT DID NOT MAKE SURE APPELLANT UNDERSTOOD THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL IN THIS ORDER OF PROTECTION MATTER, ORDER OF PROTECTION REVERSED)/RIGHT TO COUNSEL (FAMILY LAW, ORDER OF PROTECTION, FAMILY COURT DID NOT MAKE SURE APPELLANT UNDERSTOOD THE CONSEQUENCES OF PROCEEDING WITHOUT COUNSEL IN THIS ORDER OF PROTECTION MATTER, ORDER OF PROTECTION REVERSED)

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MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, THE SCHOOL INVESTIGATED THE INCIDENT WITHIN 90 DAYS, PLAINTIFF IS DEVELOPMENTALLY DISABLED, THE NOTICE WAS TWO DAYS LATE.

The Second Department, reversing Supreme Court, determined plaintiffs’ motion for leave to file a late notice of claim should have been granted. The claim alleged a school bus attendant sexually assaulted a developmentally disabled student. The school investigated the incident (which included reviewing video) and fired the bus attendant within 90 days of the last incident. The notice of claim was filed two days late if the date of the last sexual assault is used as the start of the 90 days:

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… [A] a matter of discretion, and upon consideration of all relevant facts and circumstances, courts may grant permission to claimants to serve late notices of claim. In determining whether to grant an application for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the court must consider all relevant circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the delay would substantially prejudice the public corporation in its defense on the merits … , and “whether the claimant was an infant, or mentally or physically incapacitated” … .”While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance”… . …

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Under the circumstances of this case, the School District acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose… . Pursuant to her individualized education plan (IEP), the School District transported K.A. and hired the bus attendant who sexually assaulted her during the course of his employment. Thus, an employee of the School District was not only “directly involved” in the incident … , but he committed the intentional tortious conduct giving rise to the claim. Further, the School District itself conducted the investigation that yielded the bus attendant’s admission of abuse, and reported its findings to the police. In addition, the School District terminated the bus attendant … prior to his conviction. Accordingly, the School District acquired timely, actual knowledge of the essential facts constituting the claim, which enabled it to conduct an appropriate investigation … .

With respect to the issue of whether the School District would have been prejudiced by a late notice of claim, the plaintiffs were not required to make an extensive initial showing, merely “some evidence or plausible argument that supports a finding of no substantial prejudice” … .  Under the circumstances present here, the fact that the School District acquired actual knowledge of the essential facts constituting the claim within only a few weeks of the abuse, coupled with the fact that the notice of claim was served only two days late, demonstrated that a late notice would not have substantially prejudiced the School District … .

Further, with respect to the claims asserted on behalf of [plaintiff] K.A., as distinguished from those asserted by the parents on their own behalf, K.A.’s significant developmental disabilities weigh in favor of granting leave to serve a late notice of claim or deem a late notice served nunc pro tunc … . The record contains evidence that her NIQ score of 42 fell in the “very poor range of cognitive functioning,” that she functioned at a 4th grade learning level, and that she had “no safety awareness or self-preservation skills.” … . K.A. v Wappingers Cent. Sch. Dist., 2017 NY Slip Op 04824, 2nd Dept 6-14-17

 

EDUCATION-SCHOOL LAW (NEGLIGENCE, NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, THE SCHOOL INVESTIGATED THE INCIDENT WITHIN 90 DAYS, PLAINTIFF IS DEVELOPMENTALLY DISABLED, THE NOTICE WAS TWO DAYS LATE)/NEGLIGENCE (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, THE SCHOOL INVESTIGATED THE INCIDENT WITHIN 90 DAYS, PLAINTIFF IS DEVELOPMENTALLY DISABLED, THE NOTICE WAS TWO DAYS LATE)/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, NOTICE OF CLAIM, MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, THE SCHOOL INVESTIGATED THE INCIDENT WITHIN 90 DAYS, PLAINTIFF IS DEVELOPMENTALLY DISABLED, THE NOTICE WAS TWO DAYS LATE)

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FAILURE TO DETERMINE WHETHER DEFENDANT RECEIVED NOTICE OF THE SORA HEARING REQUIRED REVERSAL.

The Second Department determine the steps taken to notify defendant of the SORA hearing were not adequate to ensure defendant was notified. Therefore defendant could not be deemed to have waived his presence at the hearing:

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” A sex offender facing risk level classification under [SORA] has a due process right to be present at the SORA hearing'” … . “[W]here there is a question as to whether the defendant’s failure to appear is deliberate, in order to establish a waiver, evidence must be presented that the defendant was advised of the hearing date, of his right to be present, and that the hearing would be conducted in his absence” … .

Here, when defense counsel and the People initially appeared for the hearing, and the defendant failed to appear, the Supreme Court, recognizing its duty to ensure that any waiver of the defendant’s right to be present was voluntary, adjourned the matter to permit defense counsel to send a notice to the defendant, by certified mail, return-receipt requested. Defense counsel sent the letter, but never received a return receipt from the post office or a response from the defendant, with whom he had never met or consulted. Defense counsel did not indicate any efforts he made to determine whether his letter had been delivered, such as, by contacting the post office. Further, there was no evidence in the record that notice was sent to the defendant by the court, but, even presuming such [*2]notice was sent, there was no evidence as to whether the notice was delivered or returned. Nor was there evidence regarding how the court or defense counsel obtained the address to which notices were sent. Thus, as defense counsel asserted, there was reason to believe that the defendant may not have received notice of the hearing. Indeed, even the court acknowledged that possibility.

Since the record failed to establish that the defendant voluntarily waived his right to be present at the SORA hearing, the order must be reversed, and the matter must be remitted to the Supreme Court, Queens County, for a new risk level assessment hearing and a new determination thereafter, to be preceded by notice to the defendant. People v Jenkins, 2017 NY Slip Op 04869, 2nd Dept 6-14-17

 

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT, FAILURE TO DETERMINE WHETHER DEFENDANT RECEIVED NOTICE OF THE SORA HEARING REQUIRED REVERSAL)/SEX OFFENDER REGISTRATION ACT (SORA) ( FAILURE TO DETERMINE WHETHER DEFENDANT RECEIVED NOTICE OF THE SORA HEARING REQUIRED REVERSAL)

THIRD-PARTY BENEFICIARY OF A CONTRACT DEMONSTRATED BREACH OF CONTRACT, CRITERIA EXPLAINED, A HEARING WAS REQUIRED TO ASSESS DAMAGES, CONVERSION CAUSE OF ACTION CANNOT BE BASED UPON BREACH OF CONTRACT ALONE.

The Second Department determined that El Equity, which financed a line of credit, was a third-party beneficiary of a contract which required El Equity’s approval before funds could be deposited in any accounts other than those designated in the contract between SDS and GBL. El

Equity demonstrated the breach of contract, but was not entitled to summary judgment because the amount of damages was not proven. The Second Department further determined that the failure to deposit funds in violation of the contract will not also support a cause of action for conversion:

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The evidence in admissible form submitted by El Equity demonstrated, prima facie, that it was an intended third-party beneficiary of the SDS Agreement, and that SDS breached that agreement. ” A non-party [to a contract] may sue for breach of contract only if it is an intended, and not a mere incidental, beneficiary'” …  However, ” the identity of a third-party beneficiary need not be set forth in the contract or, for that matter, even be known as of the time of its execution'”… . “A party asserting rights as a third-party beneficiary must establish (1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for [its] benefit and (3) that the benefit to [it] is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [it] if the benefit is lost”…  ” In determining third-party beneficiary status it is permissible for the court to look at the surrounding circumstances as well as the agreement,'” and ” the obligation to perform to the third party beneficiary need not be expressly stated in the contract'” … .

Here, El Equity was not a party to the SDS Agreement. However, El Equity established, prima facie, that the SDS Agreement was a valid and binding contract between GBL and SDS, and that El Equity was an intended third-party beneficiary of the SDS Agreement… . * * *

El Equity also demonstrated, prima facie, that SDS breached the SDS Agreement. The SDS Agreement required SDS to “pick up all” MMIS checks “and deposit them into the Escrow Account,” and SDS admittedly did not deposit four MMIS checks into the Escrow Account, but gave those checks directly to GBL. Contrary to SDS’s contention, El Equity established, prima facie, that, to the extent that it sustained any damages, those damages were caused, at least in part, by SDS’s breach of the SDS Agreement … . Greater Bright Light Home Care Servs., Inc. v Jeffries-El, 2017 NY Slip Op 04821, 2nd Dept 6-14-17

 

CONTRACT LAW (THIRD-PARTY BENEFICIARY OF A CONTRACT DEMONSTRATED BREACH OF CONTRACT, CRITERIA EXPLAINED, A HEARING WAS REQUIRED TO ASSESS DAMAGES)/THIRD-PARTY BENEFICIARY (CONTRACT LAW, THIRD-PARTY BENEFICIARY OF A CONTRACT DEMONSTRATED BREACH OF CONTRACT, CRITERIA EXPLAINED, A HEARING WAS REQUIRED TO ASSESS DAMAGES)/CONVERSION (CONTRACT LAW, CONVERSION CAUSE OF ACTION CAN NOT BE BASED UPON BREACH OF CONTRACT ALONE)

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