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SECOND DEPARTMENT TO JUDGES: DON’T DISMISS A COMPLAINT SUA SPONTE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Dillon, made the following point explicit: a sua sponte dismissal of a complaint is almost never appropriate and almost always will be reversed:

Sua sponte dismissals are not appealable as of right (see CPLR 5701[a][2] …). The reason is that such dismissals are not, by definition, the product of motions made on notice for that particular relief as otherwise statutorily required. Nevertheless, the Second Department has consistently recognized the gravity of sua sponte dismissals and the lack of opportunity for aggrieved parties to have been heard on the dispositive issue at the trial level. Those circumstances have caused the Second Department to typically grant discretionary applications for leave to appeal (see CPLR 5701[c]), or relatedly, to deem notices of appeal to be applications for leave to appeal, which have been liberally granted … . * * *

The importance that courts not dismiss actions sua sponte absent extraordinary circumstances is grounded in a fundamental concept that lawyers and judges know well—that due process requires parties to be given notice and an opportunity to be heard about litigation issues … . Courts are to be bastions of due process. It is not the role of the court, within the moat of that bastion, to seize upon an issue not raised by any party in a motion and to unilaterally dismiss an action on the basis of that discrete issue, without providing the party whose claim is dismissed so much as notice of the issue and an opportunity for all parties to be heard on it. The Court of Appeals has cautioned the judiciary that “[w]e are not in the business of blindsiding litigants, who expect us to decide [matters] on rationales advanced by the parties, not arguments their adversaries never made” … . Wells Fargo Bank, N.A. v Louis, 2024 NY Slip Op 02948, Second Dept 5-29-24

Practice Point: Judges should not dismiss complaints sua sponte because the parties are not given proper notice of the relevant issue and the parties do not have the opportunity to be heard on it.

 

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ALTHOUGH PLAINTIFF DID NOT KNOW WHICH STEP SHE SLIPPED AND FELL FROM, THERE WAS EVIDENCE ALL THE STEPS WERE UNLEVEL AND SLOPING; DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE STAIRWAY WAS LATENT AND NOT DISCOVERABLE; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant did not demonstrate plaintiff could not identify the cause of her stairway fall and defendant did not demonstrate the nonlevel and sloping condition of the steps was latent and could not have been discovered:

… [T]he plaintiff testified that her fall was caused by the fact that the “stairs were not level . . . not straight.” Although the plaintiff testified that she might have lost her balance on either the fourth step from the top of the staircase or the fourth step from the bottom of the staircase, the report of the plaintiff’s expert witness … stated that the treads on the staircase were “uneven and pitched forward,” creating an “inherent walking hazard,” and that the “out-of-level and sloping condition” affected “the entire staircase.”

* * * “In moving for summary judgment on the ground that [a] defect was latent, a defendant must establish, prima facie, that the defect was indeed latent—i.e., that it was not visible or apparent and would not have been discoverable upon a reasonable inspection”…..  Here, the evidence proffered in support of the defendant’s motion failed to establish, prima facie, that the nonlevel and sloping condition that allegedly caused the plaintiff to fall amounted to a latent condition and could not have been discovered upon a reasonable inspection. Toro v McComish, 2024 NY Slip Op 02945, Second Dept 5-29-24

Practice Point: Here the unlevel and sloping condition of the steps in the stairway where plaintiff fell was not shown to be latent and undiscoverable upon inspection.

 

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THE PLEA ALLOCUTION NEGATED ELEMENTS OF THE CRIME; APPEAL HEARD DESPITE FAILURE TO PRESERVE THE ISSUE BY MOVING TO WITHDRAW THE PLEA; GUILTY PLEA VACATED (SECOND DEPT). ​

The Second Department, vacating defendant’s guilty plea, determined the defendant’s factual recitation preceding the plea negated elements of the offense. The court heard the appeal despite a failure to preserve the error by moving to withdraw the plea:

Although the defendant failed to preserve for appellate review his contention concerning the factual recitation with respect to the charge of attempted burglary in the second degree, where, as here, the defendant’s factual recitation clearly casts significant doubt upon his guilt or otherwise calls into question the voluntariness of the plea, the defendant may challenge the sufficiency of the plea allocution on direct appeal despite the failure to move to withdraw his plea of guilty on that ground … .

The crime of attempted burglary in the second degree provides, in relevant part, that a person is guilty of that offense when, inter alia, he or she knowingly enters a dwelling unlawfully with the intent to commit a crime therein (Penal Law §§ 110.00, 140.25[2]). During his plea allocution, the defendant stated that he did not enter the home knowingly. Upon further questioning by the County Court, the defendant stated that he had “no intent” to commit the crime. The defendant’s factual recitation therefore negated an essential element of attempted burglary in the second degree, which was not corrected by further inquiry by the court, thereby calling into question the voluntariness of the defendant’s plea … . People v Martinez, 2024 NY Slip Op 02938, Second Dept 5-29-24

Practice Point: When the plea allocution negates elements of the crime and the judge does not inquire further, the question whether the plea was voluntary is raised.

Practice Point: When it is clear from the record that the plea allocution negated elements of the crime, the issue will be heard on direct appeal even if not preserved by a motion to withdraw the plea.

 

THE COVID TOLL OF THE SPEEDY TRIAL STATUTE RENDERED THE INDICTMENT TIMELY (SECOND DEPT).

The Second Department, reversing County Court, determined that the COVID toll of the speedy trial statute rendered the indictment timely:

Contrary to the determination of the County Court, while it was in effect, Executive Order No. 202.87 constituted a toll of the time within which the People must be ready for trial for the period from the date a felony complaint was filed through the date of a defendant’s arraignment on the indictment, with no requirement that the People establish necessity for a toll in each particular case … .

Because Executive Order No. 202.87 served to toll the speedy trial statute, the period from December 30, 2020, to January 25, 2021, was not chargeable to the People … . People v Fuentes, 2024 NY Slip Op 02933, Second Dept 5-29-24

Practice Point: The Executive Order imposing the COVID toll of the speedy trial statute rendered the indictment in this case timely.

Same issue and result in People v Lawson, 2024 NY Slip Op 02937, Second Dept 5-29-24.

Same Issue and result in People v McPhaul, 2024 NY Slip Op 02939, Second Dept 5-29-24.

 

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THE NEGOTIATED PLEA REQUIRED NO POST-PLEA ARRESTS; DEFENDANT WAS ARRESTED AFTER THE PLEA BUT THE PROCEEDINGS WERE DISMISSED ON SPEEDY TRIAL GROUNDS AND THE RECORDS SEALED; THE POST-PLEA ARRESTS WERE THEREFORE A NULLITY AND SHOULD NOT HAVE BEEN CONSIDERED BY THE SENTENCING JUDGE (SECOND DEPT). ​

The Second Department determined defendant’s sentence was based upon post-plea arrests which resulted in dismissal on speedy trial grounds and for which the records had been sealed. Criminal records sealed pursuant to Criminal Procedure Law (CPL) 160.50(1) have thereby been rendered a nullity. Therefore the sealed proceedings can not be the basis for a sentence:

… [T]he defendant … pleaded guilty to criminal possession of a firearm … and criminal possession of a weapon in the fourth degree …  as part of a negotiated disposition. It was agreed that if the defendant successfully completed one year of interim probation and complied with certain conditions during that time, including a no-arrest condition, the criminal possession of a firearm charge would be dismissed and he would be sentenced to a conditional discharge on the conviction of criminal possession of a weapon in the fourth degree. However, if the defendant failed to satisfy the conditions, he would be sentenced to a one-year term of imprisonment on the conviction of criminal possession of a firearm.

It is undisputed that during the term of the defendant’s interim probation, he was arrested three times. The proceedings with regard to those arrests were dismissed on speedy trial grounds and the records sealed. However, after an Outley hearing … , the Supreme Court determined that there was “a legitimate basis for [the defendant’s] arrest” and that the defendant failed to comply with the terms of his interim probation. Based upon that determination, the court sentenced the defendant to a one-year term of imprisonment on the conviction of criminal possession of a firearm. * * *

The proceedings resulting from the defendant’s postplea arrests were dismissed on speedy trial grounds, which were terminations in his favor … , and the records of those proceedings were sealed pursuant to CPL 160.50(1). Thus, the “arrest[s] and prosecution[s] [are] deemed a nullity” … , and the sealed records were “not available for consideration at sentencing” … . People v Desdunes, 2024 NY Slip Op 02932, Second Dept 5-29-24

Practice Point: Arrests and prosecutions dismissed on speedy trial grounds and sealed pursuant to CPL 160.50(1) are a nullity and cannot be considered in sentencing.

 

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THE STATUTORY PROCEDURE FOR SENTENCING A DEFENDANT AS A PERSISTENT FELONY OFFENDER WAS NOT FOLLOWED BY THE JUDGE; SENTENCE VACATED (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined the judge did not follow the procedure for sentencing a defendant as a persistent felony offender:

The Supreme Court erred in failing to comply with the procedural requirements of Penal Law § 70.10(2) when resentencing the defendant as a persistent felony offender. The procedure for determining whether a defendant may be subjected to increased punishment as a persistent felony offender requires a two-pronged analysis (see CPL 400.20[1] …). “Initially, the court must determine whether the defendant is a persistent felony offender as defined in subdivision 1 of section 70.10 of the Penal Law, namely, that he [or she] previously has been convicted of at least two felonies, and secondly, the court must determine if it ‘is of the opinion that the history and character of the defendant and the nature and circumstances of his [or her] criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest'” … . Before imposing such sentence, “the court is obliged to set forth on the record the reasons it found this second element satisfied” … .

Here, the Supreme Court failed to comply with the second prong of the analysis by failing to set forth, on the record, the reasons why it was “of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate[d] that extended incarceration and life-time supervision [would] best serve the public interest” (Penal Law § 70.10[2] …). People v Acevedo, 2024 NY Slip Op 02927, Second Dept 5-29-24

Practice Point: A judge’s failure to set forth on the record the reasons for sentencing defendant as a persistent felony offender will result in vacation of the sentence and remittal.

 

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FAILURE TO PROPERLY ASSESS A PATIENT’S RISK OF FALLING AND NEED FOR SUPERVISION SOUNDS IN MEDICAL MALPRACTICE, NOT NEGLIGENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the action sounded in medical malpractice, not negligence. Plaintiff’s decedent, who was blind, fell from an examining table when the nurse stepped away to throw away gauze in a nearby trash can:

Allegations that a health care provider improperly assessed a patient’s risk of falling and need for supervision or restraint, in light of his or her medical condition, “implicate questions of medical competence or judgment linked to . . . treatment” (Weiner v Lenox Hill Hosp., 88 NY2d at 788) and, therefore, sound in medical malpractice … . Here, the essence of the allegations was that the defendants were negligent in their assessment of “the level of supervision, nursing care, and security required for [Davis],” in light of her physical condition and the administration of narcotic medications … . Such allegations sound in medical malpractice as opposed to ordinary negligence … .

Accordingly, the Supreme Court erred in denying the defendants’ cross-motion to compel the plaintiff to serve a certificate of merit and notice of medical malpractice and to transfer the action from the general negligence part to the medical malpractice part. Snow v Gotham Staffing, LLC, 2024 NY Slip Op 02833, Second Dept 5-22-24

Practice Point: Failure to properly assess a patient’s risk of falling and need for supervision sounds in medical malpractice, not ordinary negligence.

 

THE CUSTODY/GUARDIANSHIP HEARING TOOK SEVEN YEARS AND THE CHILDREN RESIDED WITH GRANDMOTHER AND UNCLE DURING THAT TIME; THE EXTENDED DISRUPTION OF CUSTODY CAUSED BY THE PROTRACTED COURT PROCEEDINGS DID NOT CONSTITUTE “EXTRAORDINARY CIRCUMSTANCES” WARRANTING AN AWARD OF CUSTODY TO GRANDMOTHER AND UNCLE (SECOND DEPT). ​

The Second Department, reversing Family Court, noted that the six or seven years during which the children resided with grandmother and uncle did not constitute “extraordinary circumstances” warranting granting grandmother and uncle, as opposed to mother, custody. Mother was seeking custody the entire time. The hearing started in 2014 and didn’t conclude until 2021:

… [T]he record does not support the Family Court’s determination that extraordinary circumstances existed so as to confer standing on the maternal grandmother and the maternal uncle to seek guardianship and custody of Blessin F. and Frank T., Jr. The evidence failed to establish that the mother voluntarily relinquished care and control of Blessin F. and Frank T., Jr., for an extended period of time … . Rather, the record evidences that the mother’s intention was for Blessin F. and Frank T., Jr., to reside with the maternal grandmother and the maternal uncle only temporarily during her brief period of incarceration so as to prevent them from being placed in foster care, and that the children would be returned to the mother’s care and custody as soon as she was released. The hearing testimony demonstrates that from the time the mother was released from her brief period of incarceration in November 2012, she has continued to attempt to regain custody of Blessin F. and Frank T., Jr., she immediately went to Brooklyn when she was released, she made a motion to vacate the temporary orders of guardianship and custody, and she filed a petition, inter alia, for custody of Blessin F. and Frank T., Jr. Moreover, during the proceedings, the mother continued to have supervised and unsupervised parental access with Blessin F. and Frank T., Jr., as permitted by the court, in Brooklyn, although she was still residing in Georgia with her other young children. Additionally, the prolonged separation between the mother and Blessin F. and Frank T., Jr., occurred during the mother’s attempts to regain custody during these protracted proceedings, and, thus, the extended disruption of custody does not amount to an extraordinary circumstance … . When the maternal grandmother and the maternal uncle first filed petitions for guardianship and custody between October 2012 and February 2013, Blessin F. and Frank T., Jr., had only been residing with them for, at most, a few months; however, the hearing, which commenced in May 2014, did not conclude until March 2021, almost seven years later. “‘Indeed, the courts may not deny the natural parent’s persistent demands for custody simply because it took so long'” … . Matter of Teofilo R.F. v Tanairi R.F., 2024 NY Slip Op 02814, Second Dept 5-22-24

Practice Point: Although a prolonged disruption of custody can constitute “extraordinary circumstances” warranting awarding custody to a non-parent, that is not the case where, as here, the disruption was the result of protracted court proceedings (seven years).

 

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THE CUSTODY-RELATED PRINCIPALS UNDERLYING MICHAEL B, 80 NY2D 299, APPLY TO THIS SURROGATE’S COURT GUARDIANSHIP PROCEEDING WHERE BOTH PARENTS SEEK TO BE APPOINTED GUARDIAN OF THEIR DEVELOPMENTALLY DISABLED SON AS HE TURNS 18; NEW EVIDENCE RENDERED THE RECORD INSUFFICIENT FOR A GUARDIANSHIP DETERMINATION; A NEW HEARING WAS ORDERED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Miller, in this Surrogate’s Court guardianship proceeding, determined the principals underlying Matter of Michael B, 80 NY2d 299, a custody case, should apply to this action to determine which parent should be appointed guardian of their developmentally disabled son, Joseph J D II, as he turned 18. Because new evidence was brought to light after the hearing, the record is no longer sufficient and a new hearing was ordered:

These appeals present us with the narrow question of whether a rule set forth by the Court of Appeals in Matter of Michael B. (80 NY2d 299)—that an appellate court may remit a child custody matter for a new hearing if subsequent developments reflect that the record has become insufficient to determine the issues presented—may be extended to this appeal from a Surrogate’s Court decree determining a guardianship contest between the parents of an adult with a developmental disability within the meaning of article 17-A of the Surrogate’s Court Procedure Act. In light of certain commonalities between this dispute and a custody dispute, including a focus on the best interest of the individual who is the subject of the proceedings, we conclude that the rule and underlying rationale set forth in Matter of Michael B. is equally applicable here. Thus, in this proceeding pursuant to Surrogate’s Court Procedure Act article 17-A, we will consider new facts and allegations brought to our attention by the parties for the limited purpose of ascertaining whether the record before us is sufficient make a best interest determination, which is the same standard applied in appeals involving child custody. Upon doing so, we find that a new hearing is warranted because the record is no longer sufficient to determine what, at this juncture, is in the best interest of Joseph J. D. II. Matter of Joseph J.D. (Robert B.D.), 2024 NY Slip Op 02813, Second Det 5-22-24

Practice Point: The custody-related principals underlying Matter of Michael B, 80 NY2d 299, were applied to this Surrogate’s Court guardianship proceeding where both parents sought to be appointed guardian of their developmentally disabled son as he turned 18. Because new evidence came to light rendering the record inadequate, a new hearing was ordered.

 

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THE LAWSUIT SOUGHT RETURN OF A DOWN PAYMENT UNDER A REAL ESTATE CONTRACT; BECAUSE THE LAWSUIT DID NOT AFFECT TITLE, POSSESSION, USE OR ENJOYMENT OF THE PROPERTY A NOTICE OF PENDENCY IS NOT APPROPRIATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the notice of pendency should have been cancelled because the lawsuit, which sought the return of a down payment under a real estate contract, did not affect title, possession, use or enjoyment of the real property:

Pursuant to CPLR 6501, “[a] notice of pendency may be filed only when ‘the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property'” … . “When the court entertains a motion to cancel a notice of pendency in its inherent power to analyze whether the pleading complies with CPLR 6501, it neither assesses the likelihood of success on the merits nor considers material beyond the pleading itself; ‘the court’s analysis is to be limited to the pleading’s face'” … .

Here, the complaint, on its face, only asserts causes of action to recover monetary damages and does not seek relief that would affect the title to, or the possession, use, or enjoyment of, the property. Mallek v Felmine, 2024 NY Slip Op 02808, Second Dept 5-22-24

Practice Point: A notice of pendency is appropriate only when the underlying lawsuit involves title, possession, use or enjoyment of real property. A suit for the return of a down payment does not warrant a notice of pendency.

 

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