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Amendment of Summons and Complaint after the Statute of Limitations Has Run

In affirming the amendment of a summons and complaint, (apparently) after the running of the statute of limitations, the Second Department explained the relevant law:

CPLR 305(c) authorizes the court, in its discretion, to “allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced.” Where the motion is to cure “a misnomer in the description of a party defendant,” it should be granted even after the statute of limitations has run where “(1) there is evidence that the correct defendant (misnamed in the original process) has in fact been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought” … . “Such amendments are permitted where the correct party defendant has been served with process, but under a misnomer, and where the misnomer could not possibly have misled the defendant concerning who it was that the plaintiff was in fact seeking to sue” … . “However, while CPLR 305(c) may be utilized to correct the name of an existing defendant . . . it cannot be used by a party as a device to add or substitute a party defendant'” … , and it may not be used “to proceed against an entirely new defendant, who was not served, after the expiration of the statute of limitations” … . Sanders v 230fa, LLC, 2015 NY Slip Op 02107, 2nd Dept 3-18-15

 

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Sua Sponte Dismissal of Complaint Not Justified/Lack of Standing Not a Jurisdictional Defect

In a foreclosure action, the Second Department noted that Supreme Court did not have the authority to, sua sponte, dismiss the complaint, even if the plaintiff did not have standing, which is not a jurisdictional defect.  (The Second Department determined the plaintiff did in fact have standing.):

The Supreme Court also erred in, sua sponte, directing dismissal of the complaint. “A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, the Supreme Court was not presented with extraordinary circumstances warranting sua sponte dismissal of the complaint. Even if the plaintiff had lacked standing it would not have constituted a jurisdictional defect and would not warrant a sua sponte dismissal of the complaint … . Citimortgage, Inc. v Chow Ming Tung, 2015 NY Slip Op 02087, 2nd Dept 3-18-15

 

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Court Should Have Taken Judicial Notice of Father’s False Allegations in Prior Proceedings in the Same Court/Court Should Not Have Drawn an Adverse Inference from Mother’s Failure to Call a Witness without Informing Mother of Its Intent to Do So

The Second Department, in reversing Family Court finding that mother committed the family offense of assault, determined Family Court should have taken judicial notice of father’s false allegations in custody proceedings in the same court and should not have drawn an adverse inference from the mother’s failure to call a witness without giving mother the opportunity to explain the witness’ absence:

The Family Court improperly rejected the mother’s request that it take judicial notice of the determination in the parties’ prior custody proceeding, in the same court, in which the father admittedly made false allegations. That proceeding, and the court’s findings therein regarding the father, were relevant to the court’s assessment of the father’s credibility in this matter. Accordingly, the court improvidently exercised its discretion in declining to take judicial notice of the prior custody proceeding … .

Additionally, the Family Court erred in drawing a negative inference based on the mother’s failure to call the child’s maternal grandmother as a witness. ” A party is entitled to a missing witness charge when the party establishes that an uncalled witness possessing information on a material issue would be expected to provide noncumulative testimony in favor of the opposing party and is under the control of and available to that party'” … . The court sua sponte drew a negative inference based on the mother’s failure to call the grandmother as a witness, and failed to advise the mother that it intended to do so … . Matter of Spooner-Boyke v Charles, 2015 NY Slip Op 02132, 2nd Dept 3-18-15

 

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Denial of Guilt to Department of Probation (DOP) Was Not a Violation of a Condition that Defendant Cooperate With the DOP

The Second Department determined defendant’s denial of guilt to the Department of Probation (DOP) prior to sentencing was not a violation of a condition that he cooperate with the DOP.  The sentencing court therefore was not justified in imposing an enhanced sentence:

As a condition of the court’s promised sentence, the defendant agreed (1) to cooperate with the Department of Probation (hereinafter the DOP), (2) to appear on any scheduled court dates, and (3) to remain arrest free. The defendant appeared for his interview with the DOP and answered all of the questions asked, but in doing so, he also denied his guilt. However, he did not express any intention to withdraw his plea of guilty. At sentencing, the defendant contended that he did not deny his guilt to the DOP. Nonetheless, the court found that the defendant violated the “cooperation” condition by lying to the DOP. The court then imposed an enhanced sentence without first giving the defendant an opportunity to ask to withdraw his plea of guilty.

Although the violation of an explicit and objective plea condition that was accepted by the defendant can result in the imposition of an enhanced sentence …, here, the defendant’s denial of his guilt to the DOP was not a violation of the condition that he cooperate with the DOP … . While a court is free to impose a condition requiring a defendant not to deny his or her guilt when interviewed by the DOP, the Supreme Court in the instant matter did not impose such a condition … . Accordingly, it erred in imposing an enhanced sentence based on its conclusion that the defendant violated a condition of the plea of guilty… . People v Pianaforte, 2015 NY Slip Op 01969, 2nd Dept 3-11-15

Nursing License Not Marital Property/Criteria Explained

The Second Department determined Supreme Court properly found that plaintiff’s nursing license was not marital property.  The Court explained the relevant analytical criteria:

Although the enhanced earnings from academic degrees and professional licenses attained during the marriage are subject to equitable distribution, it is incumbent upon the nontitled party seeking a distributive share of such assets to demonstrate a substantial contribution to the titled party’s acquisition of that marital asset. Where only modest contributions are made by the nontitled spouse toward the other spouse’s attainment of a degree or professional license, and the attainment is more directly the result of the titled spouse’s own ability, tenacity, perseverance and hard work, it is appropriate for courts to limit the distributed amount of that enhanced earning capacity … . Here, there is no evidence that the defendant made a substantial contribution to the plaintiff’s acquisition of her nursing degree. There is no evidence that the defendant made career sacrifices or assumed a disproportionate share of household work as a consequence of the plaintiff’s education; his contributions were minor… . Badwal v Badwal. 2015 NY Slip Op 01910, 2nd Dept 3-11-15

 

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Question of Fact Re: Whether the “Continuous Representation Doctrine” Tolled the Three-Year Statute of Limitations in a Legal Malpractice Action

The Second Department determined plaintiff had raised a question of fact re: whether the three-year statute of limitations in a legal malpractice action was tolled by the continuous representation doctrine. The court explained the doctrine as follows:

The three-year limitations period applicable to causes of action to recover damages for legal malpractice “may be tolled by the continuous representation doctrine where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” … . “For the doctrine to apply, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney” … . ” One of the predicates for the application of the doctrine is continuing trust and confidence in the relationship between the parties'” … . Beroza v Sallah Law Firm, P.C., 2015 NY Slip Op 01913, 2nd Dept 3-11-15

 

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Child’s Disclosure of Sexual Abuse One Year After Abuse Ended Properly Admitted Under the “Prompt Outcry” Exception to the Hearsay Rule

The Second Department determined a child’s disclosure of sexual assault one year after the abuse ended was properly admitted under the “prompt outcry” exception to the hearsay rule:

Evidence that a sexual assault victim promptly complained about the incident is admissible to corroborate the allegation that an assault took place … . “An outcry is prompt if made at the first suitable opportunity’ …, and is a relative concept dependent on the facts’ … . “There can be no iron rule on the subject. The law expects and requires that it should be prompt, but there is and can be no particular time specified” … . “[W]hat might qualify as prompt in one case might not in another” … .

Here, the trial court permitted testimony concerning the victim’s first “outcry” to a friend which occurred approximately one year after the abuse had ended … . Under all of the circumstances of this case, including the victim’s young age, and the fact that she lived with the defendant during the relevant period, the trial court properly admitted evidence of the victim’s outcry to her friend … . People v Caban, 2015 NY Slip Op 01959, 2nd Dept 3-11-15

 

Failure to Cooperate In Formulating Mental Health Treatment Plan for Child Constituted Neglec

The Second Department affirmed Family Court’s finding of neglect based upon the mother’s failure to cooperate in formulating a plan for mental health treatment of the child.  The court explained the analytical criteria:

To establish neglect based upon a parent’s failure to provide adequate medical care, a petitioner must prove, by a preponderance of the evidence, that the child’s physical, mental, or emotional condition has been impaired, or is in imminent danger of becoming impaired, and that the actual or threatened harm to the child is due to the failure of the parent or caretaker to exercise a minimum degree of care in supplying the child with adequate medical care, though financially able to do so (see Family Ct Act §§ 1012[f][i][A]…). A parent’s unwillingness to follow a recommended course of psychiatric treatment which results in the impairment of a child’s emotional health may support a finding of neglect … . Even so, in the context of a petition alleging medical neglect, “the court’s role is not as surrogate parent and the inquiry is not posed in absolute terms of whether the parent has made the right’ or wrong’ decision” … . Rather, in deciding whether a parent has been neglectful by depriving his or her child of adequate medical care, the court must determine whether the parent has provided an acceptable course of treatment in light of all of the surrounding circumstances … .

Here, the mother’s refusal to consent to the course of medical treatment proposed by mental health professionals would not, by itself, have justified a finding of medical neglect. Nonetheless, the credible evidence established that the mother did not merely disagree with the course of medical treatment proposed for [the child], but also refused to cooperate in formulating any appropriate treatment … . Matter of Jaelin L. (Kimrenee C.), 2015 NY Slip Op 01946, 2nd Dept 3-11-15

 

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Plaintiff Brought a Frivolous Lawsuit Solely to Harass/Costs Properly Imposed on Plaintiff

The Second Department determined plaintiff had brought a frivolous lawsuit to harass and costs were properly imposed on the plaintiff:

A court may award a party “costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct” (22 NYCRR 130.1.1[a]). “In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct” (22 NYCRR 130-1.1[a]…). “[C]onduct is frivolous if . . . (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” (22 NYCRR 130-1.1[c]…). The decision whether to impose costs or sanctions against a party for frivolous conduct, and the amount of any such costs or sanctions, is generally entrusted to the court’s sound discretion … .

Here, the Supreme Court properly determined, after a hearing, that the plaintiff engaged in frivolous conduct in commencing this action, as this action is “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law,” and was undertaken primarily to harass the defendants … . Strunk v New York State Bd. of Elections, 2015 NY Slip Op 01936, 2nd Dept 3-11-15

 

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Delay In Coming Forward With Defendant’s Alibi Was a Proper Subject of Cross-Examination After Foundational Requirements Were Met

The Second Department determined defendant’s girlfriend was properly cross-examined about her delay in coming forward with defendant’s alibi.  The prosecutor laid the proper foundation for the cross-examination:

…[T]he People properly elicited testimony from his girlfriend during cross-examination regarding her delay in coming forward to the authorities with certain exculpatory information. Before a defense witness may be cross-examined regarding his or her failure to come forward with exculpatory information at an earlier date, certain foundational requirements must first be met … . Here, the prosecutor laid the necessary foundation prior to cross-examining the defendant’s girlfriend about her apparent delay in informing law enforcement authorities of the defendant’s alibi. The record indicates that, during a bench conference, it was ascertained that the defendant’s girlfriend had not refrained from speaking to authorities under the advice of defense counsel. Moreover, the court instructed the jury that the defendant’s girlfriend had no obligation to volunteer exculpatory information to law enforcement authorities. Under these circumstances, the People properly elicited evidence during the cross-examination of the defendant’s girlfriend that she delayed in contacting the authorities with exculpatory evidence … . People v Webster, 2015 NY Slip Op 01974, 2nd Dept 3-11-15

 

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