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IT WAS AN ABUSE OF DISCRETION TO DENY PLAINTIFF’S MOTION TO REOPEN THE INQUEST ON DAMAGES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined it was an abuse of discretion to deny plaintiff’s motion to reopen the inquest on damages. Although the motion was untimely, there was no prejudice to the defendants:

… [T]he Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was, in effect, to reopen the inquest in order to permit the plaintiff to submit what the court had indicated was crucial evidence … . Moreover, there was no evidence that the defendants would be prejudiced … . Although the plaintiff’s motion was not made in a timely fashion, a factor which ordinarily weighs against granting such relief … , the record here reflects that the delay may have been due in part to the plaintiff’s confusion regarding the court’s directive as to how to proceed … . Commonwealth Land Title Ins. Co. v Islam, 2023 NY Slip Op 05119, Second Dept 10-11-23

Practice Point: Here plaintiff sought to reopen the inquest on damages to present crucial evidence which had been requested by the judge. Although the request was untimely, there was no prejudice to the defendants. It was an abuse of discretion to deny the motion.

 

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THERE WAS NO EVIDENCE DEFENDANT WAIVED HIS DUE PROCESS RIGHT TO BE PRESENT AT THE SORA RISK-LEVEL HEARING; RISK-ASSESSMENT REVERSED; ALTHOUGH NOT PRESERVED, THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing the SORA risk assessment, determined the People did not demonstrate defendant had waived his due process right to be present at the hearing. Although the error was not preserved, the Second Department considered the appeal in the interest of justice:

A sex offender facing risk level classification under SORA has a due process right to be present at the SORA hearing … . “To establish whether a defendant, by failing to appear at a SORA hearing, has waived the right to be present, evidence must be shown that the defendant was advised of the hearing date, of the right to be present at the hearing, and that the hearing would be conducted in his or her absence” … . Reliable hearsay evidence, such as an affidavit, is admissible to establish waiver … . Here, the record is silent as to whether the defendant received notice of the SORA hearing and there was no evidence, hearsay or otherwise, that the defendant expressed a desire to forego his presence at the hearing. People v Perez, 2023 NY Slip Op 05161, Second Dept 10-11-23

Practice Point: Although a defendant can waive the due process right to be present at the SORA risk-assessment hearing, and the waiver can be proved by hearsay, here there was no evidence of a waiver and the risk assessment was reversed.

Practice Point: At issue here was defendant’s constitutional right to be present at the SORA risk-assessment hearing. Although the issue (his absence from the hearing) was not preserved, the appellate court considered the appeal in the interest of justice.

 

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DEFENDANT’S WAIVER OF APPEAL WAS INVALID; HER SENTENCE WAS FURTHER REDUCED PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (SECOND DEPT). ​

The Second Department determined defendant’s appeal-waiver was invalid and further reduced her sentence pursuant to the Domestic Violence Survivors Justice Act:

The County Court did not discuss the appeal waiver with the defendant until after the defendant had already admitted her guilt as part of the plea agreement … . Further, when the court raised the issue of the appeal waiver, the defendant, who had no known prior contact with the criminal justice system, advised the court that she had not discussed the waiver with her attorney, which required a pause in the proceedings to give her an opportunity to do so. These circumstances, including the defendant’s experience and background, demonstrate that the purported waiver of the right to appeal was invalid … .

Pursuant to the Domestic Violence Survivors Justice Act (L 2019, ch 31, § 1; L 2019, ch 55, § 1, part WW, § 1 [eff May 14, 2019]; hereinafter the DVSJA), courts may “impose reduced alternative, less severe, sentences in certain cases involving defendants who are victims of domestic violence” … . Here, while the County Court granted the defendant’s application for an alternative sentence under the DVSJA, we find that the sentence imposed should be reduced to the extent indicated herein … . People v Heft, 2023 NY Slip Op 05148, Second Dept 10-11-23

Practice Point: Defendant’s appeal waiver was deemed invalid, in part because she had not discussed the waiver with her attorney and had no prior contact with the criminal justice system.

Practice Point: Here County Court had reduced defendant’s sentence pursuant to the Domestic Violence Survivors Justice Act and the Second Department reduced it further.

 

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THE FACT THAT THE HOME WAS ILLUMINATED WHEN THE PROCESS SERVER ATTEMPTED SERVICE DID NOT DEMONSTRATE DEFENDANT WAS EVADING SERVICE; THE PROCESS SERVER DID NOT ATTEMPT SERVICE AT DEFENDANT’S PLACE OF EMPLOYMENT; THE “NAIL AND MAIL” SERVICE WAS INVALID (SECOND DEPT).

​The Second Department, reversing Supreme Court, determined the “nail and mail” service of process was invalid because the process server’s affidavit did not demonstrate “due diligence” in attempting other methods of personal service:

“Service of process must be made in strict compliance with [the] statutory ‘methods for effecting personal service upon a natural person’ pursuant to CPLR 308” … . Here, the plaintiff purportedly served the defendant by the “affix and mail” method pursuant to CPLR 308(4). Service pursuant to CPLR 308(4) may be used only where service pursuant to CPLR 308(1) or (2) cannot be made with “due diligence” … . “The due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received” … .

Here, … the process server made prior attempts at personal delivery of the summons and complaint at the defendant’s residence at different times of the day between Thursday, December 21, 2017, and Friday, December 29, 2017. Although one of those times was on December 23, 2017, a Saturday, the attempts at service occurred at the height of the holiday season, when the defendant may have had reasons not to be home … . The process server noted that holiday lights were on in the windows of the residence on December 23, 2017, and that both floors of the residence were illuminated on December 26, 2017. Nevertheless, considering the holiday season, the process server’s observations were not a sufficient basis to believe that the defendant was evading service. Moreover, the process server stated that he was “unable” to speak to a neighbor regarding the defendant’s whereabouts.

In addition, in the year prior to the commencement of this action, the defendant was granted a loan modification, and as part of his application for a loan modification, the defendant was required to and did, in fact, disclose his employer and address of employment to the plaintiff. No attempts were made to serve the defendant at his place of employment. Bank of Am., N.A. v Fischer, 2023 NY Slip Op 05112, Second Dept 10-11-23

Practice Point: Here the process server’s affidavit did not demonstrate “due diligence” in attempting service at defendant’s home and there was no attempt to serve defendant at his place of employment. The “nail and mail” service was deemed invalid.

 

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IN THIS REAR-END COLLISION CASE, THE DRIVER OF THE REAR VEHICLE ALLEGED THE OTHER VEHICLE CHANGED LANES ABRUPTLY AND CAME TO A STOP IN FRONT OF HIM; THAT CONSTITUTED A NON-NEGLIGENT EXPLANATION WHICH RAISED A QUESTION OF FACT (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this rear-end traffic accident case, determined defendant raised a question of fact about a non-negligent explanation for his striking the car in front:

At his deposition, Guo Lin Wu [the driver of the United vehicle] testified that the Castillo/Lopez vehicle changed lanes abruptly in front of the United vehicle and then came to a sudden stop. Guo Lin Wu’s deposition testimony, if true, would constitute a nonnegligent explanation for his actions, and would establish that Castillo’s negligence was a proximate cause of the accident … . The differing versions of events raised issues of credibility to be resolved by the factfinder … . Balanta v Guo Lin Wu, 2023 NY Slip Op 05111, Second Dept 10-11-23

Practice Point: Ordinarily a rear-end collision with a stopped vehicle warrants summary judgment in favor of the stopped vehicle. Here the driver of the rear vehicle raised a question of fact by alleging the other vehicle changed lanes abruptly and stopped in front of him.

 

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THE MAJORITY DETERMINED MOTHER’S PARENTAL RIGHTS WERE PROPERLY TERMINATED; MOTHER AND THE DISSENT ARGUED THE DEPARTMENT OF SOCIAL SERVICES DISCOURAGED HER FROM COMMUNICATING WITH IT WELL BEFORE THE ABANDONMENT PERIOD (SIX MONTHS BEFORE THE FILING OF THE TERMINATION PETITION) AND THE JUDGE ERRONEOUSLY PROHIBITED HER FROM PRESENTING EVIDENCE FROM BEFORE THE ABANDONMENT PERIOD (SECOND DEPT).

The Second Department, over an extensive and comprehensive dissent, determined Family Court properly terminated mother’s parental rights. The question whether a parent has abandoned a child focuses on the six months immediately prior to the filing of the petition to terminate parental rights. Mother argued that the Department of Social Services had discouraged her from communicating with the department and the court had cut off her parental access well before the statutory abandonment period. The dissent agreed with mother’s arguments and supported a new fact-finding hearing:

… [T]he mother failed to demonstrate that the petitioner prevented or discouraged her from communicating with it or with the child, or that she was otherwise unable to do so … . The mother’s contention that the petitioner prevented her from communicating with the child by suspending her parental access is without merit, as it was the Family Court that suspended the mother’s parental access with the child, not the petitioner. Further, the mother was still obligated to maintain contact with the petitioner, which had legal custody of the child, even though the court had suspended her parental access … . * * *

From the dissent:

In this proceeding to terminate the mother’s parental rights on the ground of abandonment, the mother, who had been precluded from visiting with the subject child, asserted that her conduct during the statutory abandonment period did not evince an intent to abandon the child because the petitioner had prevented and discouraged her from maintaining contact with the child and with the petitioner. The Family Court erroneously ruled that the mother could not present evidence regarding events that occurred prior to the statutory abandonment period and erroneously precluded the mother from eliciting such evidence on cross-examination of the petitioner’s witnesses and during her own testimony. The court’s incorrect ruling infringed upon the mother’s right to present evidence regarding the central issue in the proceeding. Matter of Abel J.R. (Estilia R.), 2023 NY Slip Op 05139, Second Dept 10-11-23

Practice Point: To demonstrate abandonment of a child, the proof focuses on the six months before the petition to terminate parental rights was filed. Here mother and the dissent argued the Department of Social Services discouraged her from communicating with it about the child well before the six-month abandonment period. Mother and the dissent argued the Family Court judge erred by limiting proof from prior to the abandonment period. The majority noted mother was allowed to present pre-abandonment-period evidence and that evidence did not negate the proof of abandonment.

 

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​ A VOLUNTARY DISCONTINUANCE OF A FORECLOSURE ACTION NO LONGER STOPS THE STATUTE OF LIMITATIONS (SECOND DEPT). ​

The Second Department, reversing Supreme Court, noted that a voluntary discontinuance of a foreclosure action no longer stops the running of the statute of limitations:

… [T]he six-year statute of limitations began to run on the entire debt in July 2011, when the plaintiff’s predecessor in interest commenced the 2011 action and elected to call due the entire amount secured by the mortgage … . The instant action was commenced in October 2017, more than six years later (see CPLR 213[4] …). Under the recently enacted Foreclosure Abuse Prevention Act (L 2022, ch 821, § 8 [eff Dec. 30, 2022]), the voluntary discontinuance of the 2011 action did not “in form or effect, waive, postpone, cancel, toll, extend, revive or reset the limitations period to commence an action and to interpose a claim, unless expressly prescribed by statute” (CPLR 3217[e]; see CPLR 203[h] … ). Under these new legal principles, the plaintiff cannot rely upon the voluntary discontinuance of the 2011 action to establish entitlement to judgment as a matter of law on the issue of whether enforcement of the mortgage loan is barred by the statute of limitations. CIT Bank, N.A. v Byers, 2023 NY Slip Op 04978, Second Dept 10-4-23

Practice Point: Pursuant to the Foreclosure Abuse Prevention Act (2022) the bank can no longer stop the running of the statute of limitations by voluntarily discontinuing the foreclosure action.

 

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IN THIS MEDICAL MALPRACTICE ACTION, PLAINTIFF WAS ADMITTED WITH COVID, WAS TREATED FOR COVID AND DIED FROM COVID; PURSUANT TO THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) THE DEFENDANT WAS IMMUNE FROM SUIT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant New York City Health and Hospitals Corporation was immune from a lawsuit stemming from a COVID-19-related death pursuant to the Emergency or Disaster Treatment Protection Act (EDTPA):

… [T]he EDTPA initially provided, with certain exceptions, that a health care facility “shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services” as long as three conditions were met: the services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law; the act or omission was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives; and the services were arranged or provided in good faith … . The health care services covered by the immunity provision included those related to the diagnosis, prevention, or treatment of COVID-19; the assessment or care of an individual with a confirmed or suspected case of COVID-19; and the care of any other individual who presented at a health care facility or to a health care professional during the period of the COVID-19 emergency declaration … . Mera v New York City Health & Hosps. Corp., 2023 NY Slip Op 04975, Second Dept 10-4-23

Practice Point: Pursuant to the Emergency or Disaster Treatment Protection Act (EDTPA), the defendant health care facility was immune from a lawsuit premised upon admission, treatment and death from COVID-19.

 

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THE PARTIES’ SEPARATION AGREEMENT DID NOT MAKE IT CLEAR THE PARTIES KNOWINGLY OPTED OUT OF THE LEVEL OF CHILD SUPPORT REQUIRED BY THE CHILD SUPPORT STANDARDS ACT (CSSA); THEREFORE THE SUPPORT PROVISIONS IN THE AGREEMENT ARE NOT ENFORCEABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the separation agreement did not include the required language indication the parties agree to opt out of the level of child support required by the Child Support Standards Act (CSSA):

“Parties to a separation agreement are free to ‘opt out’ of the provisions of the CSSA so long as their decision is made knowingly” … . “To ensure that waivers of the statutory provisions of the CSSA are truly knowingly made, Domestic Relations Law § 240(1-b)(h) requires that, in order to be valid, a stipulation must recite that the parties have been made aware of the CSSA, and that the basic child support obligation provided for therein would presumptively result in the correct amount. Where the stipulation deviates from the basic child support obligation, it must specify what the presumptive amount would have been and the reason for the deviation” … .

Here … the provisions in the parties’ separation agreement relating to the child support obligations with respect to one child did not contain the specific recitals mandated by the CSSA, and the record does not demonstrate that the plaintiff’s agreement to said provisions was made knowingly. … [T]he provisions are not enforceable … . Sayles v Sayles, 2023 NY Slip Op 04968, Second Dept 9-4-23

Practice Point: Parties to a separation agreement can “opt out” of the level of child support required by the Child Support Standards Act (CSAA). But if the agreement doesn’t include recitals which make it clear the parties knowingly opted out, the agreement is not enforceable.

 

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DEFENDANT HAD THE RIGHT TO ASSIGNED COUNSEL IN THIS CIVIL CONTEMPT PROCEEDING STEMMING FROM DEFENDANT’S FAILURE TO PAY CHILD SUPPORT; THE JUDGE SHOULD HAVE CONDUCTED AN INQUIRY TO SEE IF DEFENDANT QUALIFIED FOR ASSIGNED COUNSEL PRIOR TO ISSUING THE ORDER OF COMMITMENT (SECOND DEPT).

The Second Department, reversing the order of commitment in this matrimonial case, noted that defendant faced possible jail time for civil contempt stemming from a failure to pay child support. Therefore defendant had a right to assigned counsel if found indigent. The judge should have have ascertained defendant’s financial condition:

“In general, the respondent in a civil contempt proceeding who faces the possibility of the imposition of a term of imprisonment, however short, has the right to the assignment of counsel upon a finding of indigence” … . “Moreover, a parent has the statutory right to counsel in a proceeding in which it is alleged that he or she has willfully failed to comply with a prior child support order” … .

Here, the defendant informed the Supreme Court on multiple occasions that he could not afford to retain an attorney. Therefore, prior to issuing an order of commitment, the court should have inquired into the defendant’s current financial circumstances to determine whether he had become eligible for assigned counsel … . Hoffman v Hoffman, 2023 NY Slip Op 04959, Second Dept 10-4-23

Practice Point: Here defendant was found in civil contempt for failure to pay child support. Because the judge was going to order jail-time, defendant had the right to assigned counsel if he could not afford an attorney. The judge should have conducted an inquest to determine defendant’s financial condition before issuing the order of commitment.

 

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