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THE NEW JERSEY ORDER AND JUDGMENT SHOULD HAVE BEEN ACCORDED FULL FAITH AND CREDIT IN THE NEW YORK FORECLOSURE ACTION; CRITERIA EXPLAINED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined a New Jersey order and judgment should have been accorded full faith and credit in this foreclosure action:

“A judgment rendered by a court of a sister State is accorded ‘the same credit, validity, and effect, in every other court of the United States, which it had in the state where it was pronounced’ ” … . Our review of the foreign judgment at issue is “limited to determining whether the rendering court had jurisdiction” … . It is undisputed that the New Jersey court had jurisdiction as the defendants appeared in the action and vigorously litigated the matter for years, thus, “inquiry into the merits of the underlying dispute is foreclosed” … and “the merits of [the] judgment of a sister state may not be collaterally attacked” … . Accordingly, a “decree of a sister [s]tate in which [the] parties were subject to personal jurisdiction in that [s]tate is entitled to full faith and credit in the courts of New York” … . Sjogren v Land Assoc., LLC, 2024 NY Slip Op 00009, Third Dept 1-4-24

Practice Point: A New York court’s only function in determining whether a foreign state’s order and judgment should be accorded full faith and credit is assessing whether the foreign court had jurisdiction over the matter.

 

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IF A PATIENT DOES NOT REQUEST A COMBINED HEARING UNDER THE MENTAL HYGIENE LAW ON AN “EMERGENCY” HOSPITAL ADMISSION AND AN “INVOLUNTARY” HOSPITAL ADMISSION, IT IS ERROR TO COMBINE THEM; HOWEVER A PATIENT COULD REQUEST A COMBINED HEARING AND RESPONDENT WAS NOT PREJUDICED BY THE COMBINED HEARING IN THIS CASE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined that the combined hearing pursuant to Mental Hygiene Law sections 9.31 and 9.39 was improper but the patient was not prejudiced by the procedure. The respondent had been released from the hospital, so the appeal was moot. But the Third Department heard the case because the issue was likely to otherwise evade review:

As we understand respondent’s position, she maintains that in the context presented — where a patient is admitted on an emergency basis under Mental Hygiene Law § 9.39 and has demanded a hearing, but whose status is converted to an involuntary admission on medical certification under Mental Hygiene Law § 9.27 prior to the hearing — the ensuing hearing must be limited to a section 9.39 format. Respondent emphasizes that she never requested a hearing under section 9.31 to challenge her involuntary admission. By holding a combined hearing, respondent contends that County Court deprived her of her statutory right to demand a later hearing under section 9.31. * * *

The … question is whether County Court improperly combined the hearings … to conclusively resolve whether respondent was entitled to release that day, assuming the proof fell short under either standard. That question is resolved by the procedures outlined in Mental Hygiene Law §§ 9.31 (a) and 9.39 (a) (2), which vest in the patient — not the court or hospital — the right to request a hearing under each section. In that regard, we agree with respondent that, because she never requested a hearing under section 9.31, the court erred in holding a combined hearing and she retained the right to later request a hearing under section 9.31. On the other hand, had respondent also requested a section 9.31 hearing, we see no reason why a combined hearing could not be held by the court, provided it did so within the applicable statutory deadlines and considered both statutory standards in rendering its decision. Matter of Julie O., 2024 NY Slip Op 00015, Third Dept 1-4-24

Practice Point: Here an “emergency” hospital admission under the Mental Hygiene Law and an “involuntary” admission were pending at the same the time. The admissions have different standards. Therefore, if the patient does not request a combined hearing the court should not hold one. However a patient could request a combined hearing.

Practice Point: Here the patient had been released from the hospital and the appeal of the patient’s admission was moot. However the Third Department considered the case because the issue was likely to evade review.

 

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THE JUDGE PRESIDING OVER THIS TRAFFIC ACCIDENT CASE SHOULD HAVE GRANTED PLAINTIFFS’ RECUSAL MOTION; DEFENSE COUNSEL WAS ACTIVE IN THE JUDGE’S ELECTION CAMPAIGN (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the judge in a traffic accident case should have granted plaintiffs’ recusal motion. Plaintiffs had learned defense counsel was active in the judge’s election campaign and had failed to disclose that information to the parties:

…Justice Muller did not disclose to the parties that defense counsel and his law firm were providing assistance to his judicial campaign. Plaintiffs independently learned of the fundraiser, prompting them to raise the issue and seek the judge’s recusal. The record establishes that the law firm hosted a fundraising event for Justice Muller, that the names of defense counsel and five other attorneys from his firm appeared as supporters on Justice Muller’s campaign website and that defense counsel wrote a favorable opinion letter endorsing Justice Muller’s candidacy which appeared in several news publications throughout the Fourth Judicial District. Furthermore, the JCEC’s [Judicial Campaign Ethics Center’s] … letter clearly states that Justice Muller was “disqualified, subject to remittal, from presiding over matters involving defense counsel and his law firm, including partners and associates, during the course of [his] judicial campaign” … . Although we have no way of knowing Justice Muller’s reasons or intentions, it is undisputed that he did not disclose the JCEC letter to the parties until a month after receiving it, when his campaign results became official, and he was elected to a new term of office. As judges need to avoid even the appearance of impropriety, Justice Muller should have disclosed the JCEC letter upon receipt and recused from the matter as soon as possible (see Rules Governing Jud Conduct [22 NYCRR] §100.3 [E] [1]; Advisory Comm on Jud Ethics Op 03-64 [2003]). Therefore, Justice Muller abused his discretion in denying plaintiffs’ motion for recusal. Minckler v D’Ella, Inc., 2024 NY Slip Op 00017, Third Dept 1-4-24

Practice Point: Here the judge’s failure to disclose to the parties defense counsel’s involvement in the judge’s election campaign required recusal.

 

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PLAINTIFF’S “INADEQUATE FALL-PROTECTION” CAUSES OF ACTION SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE; THEREFORE PLAINTIFF’S AFFIDAVIT FROM A NURSE WAS NOT SUFFICIENT TO OVERCOME DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT WHICH WAS SUPPORTED BY AN AFFIDAVIT FROM A PHYSICIAN (THIRD DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined the two “inadequate fall-prevention” causes of action in the complaint sounded in medical malpractice, not negligence. Therefore the affidavit from a nurse was not sufficient to support the malpractice causes of action:

Defendants established their prima facie entitlement to summary judgment with respect to the specific allegations sounding in medical malpractice, by and through an expert’s affidavit from a physician opining that decedent was provided with fall prevention interventions throughout her admission that met or exceeded the standard of care, and that, following each fall, decedent was rendered the appropriate medical care and treatment. Moreover, this physician opined that the treatment plan developed for decedent and the care rendered to her were within the standard of care and were not a substantial factor in causing the alleged injuries … . In opposition, plaintiff tendered an expert affidavit from a nurse. However, inasmuch as certain allegations sound in medical malpractice and pertain to medical determinations and what a physician should or should not have done, plaintiff’s nurse rendered opinions that “went beyond her professional and educational experience and cannot be considered competent medical opinion” … . Currie v Oneida Health Sys., Inc., 2023 NY Slip Op 06780, Second Dept 12-28-23

Practice Point: Re: the medical malpractice causes of action, the affidavit from a physician in support of defendants’ motion for summary judgment prevailed over plaintiff’s affidavit from a nurse who, based on her experience and education, could not offer a competent medical opinion.

 

PLAINTIFF DEMONSTRATED DUE DILIGENCE IN ATTEMPTING TO SERVE THE DEFENDANT; PLAINTIFF WAS ENTITLED TO A SECOND EXTENSION OF TIME TO SERVE BY ALTERNATIVE MEANS (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff had exercised due diligence in attempting to serve defendant and was entitled to a second extension of time to serve the defendant:

Supreme Court improvidently exercised its discretion in denying plaintiff a second extension to serve Dr. Hanandeh under CPLR 306-b, as plaintiff established good cause for the late service by proffering evidence of diligent efforts to serve the doctor … . Plaintiff attempted service at an Ohio address obtained through investigation, which turned out to be the home of Dr. Hanandeh’s parents and brother, and also attempted service at Dr. Hanandeh’s last known New York address as provided by his former employer, defendant New York City Health and Hospitals Corporation … .

In addition, plaintiff established entitlement to an extension of time in the interest of justice because, in addition to showing that she made diligent efforts to obtain jurisdiction, she made a showing that Dr. Hanandeh did not incur any prejudice by the delay, and in fact has known of the suit since before plaintiff requested the second extension … .

Under the circumstances presented, plaintiff is also entitled to effectuate service by alternative means, as she made a showing that service on Dr. Hanandeh was impracticable, and that service by email was reasonably calculated to apprise him of this action (CPLR 308 …). Dixon v New York City Health & Hosps. Corp., 2023 NY Slip Op 06592, Third Dept 12-21-23

Practice Point: Because plaintiff demonstrated due diligence in attempting the serve the defendant and the lack of prejudice to the defendant, plaintiff was entitled to a second extension of time to serve and service by alternative means.

 

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IN THIS TRAFFIC ACCIDENT CASE, EVIDENCE DEFENDANT FAILED TO SEE THE CAR HE COLLIDED WITH AND FAILED TO TIMELY BRAKE IS NOT LEGALLY SUFFICIENT FOR A CRIMINALLLY NEGLIGENT HOMICIDE CONVICTION; THE LEGAL INSUFFICIENCY ARGUMENT WAS PRESERVED BY A MOTION TO DISMISS BROUGHT AT THE CLOSE OF THE PEOPLE’S CASE AND RULED ON AFTER THE DEFENDANT’S CASE; THE “LEGALLY INSUFFICIENT” VERSUS “AGAINST THE WEIGHT OF THE EVIDENCE” STANDARDS EXPLAINED (THIRD DEPT).

The Third Department, reversing defendant’s criminally negligent homicide conviction in this traffic accident case, determined the evidence was legally insufficient. The Third Department noted the issue was preserved by a written motion to dismiss submitted at the close of the People’s case and ruled upon after the close of defendant’s case. The Third Department also compared the criteria for a motion to dismiss for legal insufficiency and a determination a conviction is against the weight of the evidence. The trial evidence demonstrated only that defendant was inattentive when he rounded a turn and struck the back of the victim’s car as it was waiting to make a turn while travelling about 45 mph. That was not enough to demonstrate criminal negligence:

Defendant preserved the claim of legal insufficiency when County Court reserved upon a written motion to dismiss presented at the close of the People’s case and ultimately denied the motion at the close of defendant’s case … .

A review of legal sufficiency requires this Court to “view the facts in the light most favorable to the People and examine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” … . Whereas, a review of whether a verdict is against the weight of the evidence requires the court to “view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence” … . * * *

“The unexplained failure of a driver to see the vehicle with which he subsequently collided does not, without more, support a conviction for the felony of criminally negligent homicide” … . Here, the People argue that a failure to brake — for what is alleged to be a period of 10 to 18 seconds — constitutes criminal negligence. But even taking the facts in the light most favorable to the People, a failure to brake, without more, does not constitute criminal negligence … . People v Munise, 2023 NY Slip Op 06562, Third Dept 12-21-23

Practice Point: Here the victim died after a rear-end collision. Proof that defendant failed to see the victim’s car and failed to timely brake does not support a criminally negligence homicide conviction.

Practice Point: Making a motion to dismiss at the close of the People’s case which is ruled on after the defendant’s case preserves the legal insufficiency argument for appeal.

Practice Point: The decision includes a comparison of the “legal insufficiency” and “against the weight of the evidence” analytical criteria.

 

A DEFENDANT CHARGED WITH A CLASS A FELONY CANNOT WAIVE INDICTMENT AND PLEAD TO A SUPERIOR COURT INFORMATION PURSUANT TO CPL 195.10 (THIRD DEPT).

The Third Department, reversing County Court, vacating defendant’s guilty plea and dismissing the superior court information, determined defendant was not eligible to waive the indictment and plead to a superior court information because the controlling statute does not apply to A felonies. Defendant was charged with an A-II felony:

Defendant’s primary contention is that the waiver of indictment and SCI were jurisdictionally defective … . CPL 195.10 provides, in relevant part, that “[a] defendant may waive indictment and consent to be prosecuted by [SCI] when . . . the defendant is not charged with a class A felony punishable by death or life imprisonment” (CPL 195.10 [1] [b]). To this end, the Court of Appeals has held that “when an accused is held for [g]rand [j]ury action upon a felony complaint that charges a class A felony, . . . a waiver of indictment with respect to that felony complaint is unauthorized” … . Here, defendant was held for grand jury action upon a felony complaint charging him with predatory sexual assault against a child, a class A-II felony that is punishable by an indeterminate sentence with a mandatory maximum term of life imprisonment … . Defendant’s waiver of indictment encompassed this charge and, thus, was expressly prohibited under CPL 195.10 and is invalid, “render[ing] the resulting procedure employed to procure defendant’s guilty plea unauthorized” … . People v Smith, 2023 NY Slip Op 06563, Third Dept 12-21-23

Practice Point: Defendants charged with a class A felony are not eligible, pursuant to CPL 195.10, to waive indictment and plead to a superior court information.

 

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DEFENDANT IN THIS MANSLAUGHTER CASE WAS ENTITLED TO A REDUCED SENTENCE UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA); TWO DISSENTERS ARGUED DEFENDANT’S SENTENCE WAS NOT UNDULY HARSH (THIRD DEPT).

The Third Department, reversing County Court, over a two-justice dissent, determined defendant was entitled to resentencing in this manslaughter case under the Domestic Violence Survivors Justice Act (DVSJA). The dissenters agreed that defendant met the DVSJA criteria for a reduced sentence, but argued the sentence that was imposed was not unduly harsh:

… [W]e disagree with County Court’s determination that defendant’s abuse was anything less than “substantial,” as defendant’s own account of the specific acts of violence, which is largely corroborated by various witnesses in the record, and the injuries suffered as well as the psychological abuse that came alongside such violence was sufficient to fall under the ambit of the DVSJA. Although the court accurately concluded that the relationship between defendant and the victim was mutually abusive, that does not foreclose a determination that defendant was a victim of abuse … . Moreover, such conduct is readily explained in Lesswing’s [the forensic psychologist’s] report as typical of those persons suffering from battered person syndrome, particularly in the case of defendant who had a lengthy history of exposure to domestic violence over the course of her life … . People v Brenda WW., 2023 NY Slip Op 06564, Third Dept 12-21-23

Practice Point: Here in this manslaughter case  the defendant met the criteria for a reduced sentence under the Domestic Violence Survivors Justice Act (DVSJA). Two dissenters agreed that defendant met the criteria but argued the imposed sentence was not unduly harsh.

 

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THE TRIAL EVIDENCE DEMONSTRATED THE STATE HAD CONSTRUCTIVE NOTICE OF THE POTHOLE WHERE PLAINTIFF FRACTURED HER ANKLE AND FAILED TO REPAIR IT; NONJURY VERDICT REVERSED (THIRD DEPT).

The Third Department, reversing a nonjury verdict in the Court of Claims, determined the evidence demonstrated the defendant (NYS) had constructive notice of the pothole where plaintiff fractured her ankle in September 2017:

All four DOT [Department of Transportation] witnesses acknowledged that they did not know how long the pothole existed prior to [plaintiff’s] accident. One DOT witness, a retired assistant resident engineer, confirmed that with a “freeze/thaw in the winter . . . the actual [popping out [of a pothole] . . . can occur sometime later, even in warmer months.” The key testimony came from George Laundrie, DOT’s resident engineer … . When asked whether the pothole “must have formed sometime prior to the summer” of 2017, Laundrie responded: “I don’t think it’s fair to say it must have formed prior to June of 2017. I think it’d be fair to say it’s likely it probably formed prior to that . . . , I wouldn’t say must have, but it’s probably pretty likely it formed prior to June.” …

In reviewing a nonjury verdict on appeal, this Court has broad, independent authority to weigh the evidence and render a judgment “warranted by the facts” … . In our view, Laundrie’s testimony was not ambiguous and established that it was probable that the pothole existed for several months before Feeney’s accident. Correspondingly, the record shows that defendant’s road maintenance crews worked in this area six times since January 2017, and most recently in July 2017. On this record, we conclude that claimants met their burden of proving that despite having constructive notice, defendants were negligent in failing to repair the pothole (see PJI 1:60). Inasmuch as issues of comparative negligence and damages remain to be determined, the claim must be remitted to the Court of Claims (see Court of Claims Act … . Feeney v State of New York, 2023 NY Slip Op 06574, Third Dept 12-21-23

Practice Point: Here the Third Department reversed a nonjury verdict in the Court of Claims finding that the evidence demonstrated the State had constructive notice of the pothole where plaintiff fractured her ankle and negligently failed to repair. The matter was sent back for determination of the comparative negligence and damages issues.

 

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HERE THERE WAS NO INDICATION THE WAIVER OF INDICTMENT WAS SIGNED IN OPEN COURT, A JURISDICTIONAL DEFECT (THIRD DEPT). ​

The Third Department, dismissing the superior court information, determined the waiver of indictment was invalid because there was not evidence it was signed in open court:

A defendant “may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney,” and “such waiver shall be evidenced by written instrument signed by the defendant in open court in the presence of his or her counsel” … . Although the record reflects that defendant orally agreed to waive indictment in open court on November 19, 2020, the written waiver of indictment, which defendant and defense counsel acknowledged signing, is dated November 17, 2020, and the minutes do not demonstrate that defendant signed the waiver in open court, as constitutionally mandated. “Compliance with this unequivocal dictate is indispensable to a knowing and intelligent waiver and the failure to adhere to this strict procedure is a jurisdictional defect which survives a guilty plea and appeal waiver and need not be preserved for review by a motion to withdraw the plea” … . “Moreover, neither the written waiver of indictment, to which the District Attorney executed consent on [October 14, 2020], nor County Court’s undated order approving the waiver, indicates that the waiver was signed in open court” on November 19, 2020 … . “In light of this jurisdictional defect, defendant’s guilty plea must be vacated and the superior court information must be dismissed” … . People v Berry, 2023 NY Slip Op 06410, Third Dept 12-14-23

Practice Point: Here the waiver of indictment was deemed invalid because there was no indication the waiver was signed in open court, which is a jurisdictional defect. The superior court information was therefore dismissed.

 

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