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COUNTY COURT DID NOT CORRECTLY APPLY THE CRITERIA OF THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) WHEN CONSIDERING DEFENDANT’S MOTION FOR RESENTENCING; THE THIRD DEPARTMENT DETERMINED DEFENDANT WAS ENTITLED TO A MORE LENIENT SENTENCE UNDER THE ACT AND RESENTENCED HER TO TIME SERVED (THIRD DEPT).

The Third Department, reversing County Court and resentencing defendant to time served, determined County Court did not comply with the criteria of the Domestic Violence Survivors Justice Act (DVSJA) when considering defendant’s motion for resentencing under the act. Defendant had been convicted of killing her paramour and was sentenced to ten years in prison:

The DVSJA, in recognition of the profound and pervasive trauma suffered by victims of substantial abuse, permits courts to impose more lenient sentences in certain cases where a victim of domestic violence commits crimes against his or her abuser or as a result of that abuse … . * * *

… [T]he court misapplied the language of Penal Law § 60.12 (1) (a) by requiring that the abuse occur “at the time of the instant offense.” Indeed, such temporal argument would inherently invoke the defenses of duress or justification, however, the legislative history makes it clear that the DVSJA was enacted to address shortfalls in each of those defenses, “as victims of abuse may not be psychologically or socially capable of invoking such defenses at the time of their trials, due to their victimization and its impact on them” … . * * *

… County Court found that the abuse suffered by defendant “was a factor” in her commission of the crime, but failed to conclude as to whether it was a “significant contributing factor” as is required under the statute. Moreover, the court did not articulate a factual basis for its finding in this regard. * * *

… [T]he DVSJA, Penal Law § 60.12 (1) (c) expressly provides that a determination as to whether a standard sentence would be “unduly harsh” is to be made in consideration of the “the nature and circumstances of the crime and the history, character and condition of the defendant.” Although the court’s written decision notes defendant’s age, lack of criminal history and the fact that she is the mother of two children, no discussion is devoted to these circumstances or what weight they should be afforded in considering her resentencing application. People v Liz L., 2023 NY Slip Op 06008, Third Dept 11-22-23

Practice Point: The criteria for resentencing under the Domestic Violence Survivors Justice Act (DVSJA) discussed in some detail.

 

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THE JUDGE SHOULD NOT HAVE DELEGATED THE COURT’S AUTHORITY TO SCHEDULE VISITATION (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined the judge should not have delegated the court’s authority to schedule visitation:

… Family Court improperly granted the grandfather and the father of the older child sole authority to determine the dates for at least four consecutive days of visitation in the months of July and August. Allowing the grandfather and the father of the older child to determine periods of summer visitation for the children without the agreement of the mother, the custodial parent, constitutes “an improper delegation of authority” … . In view of the sparse state of the record, as well as the passage of time since the entry of the orders on appeal, we remit solely for the purpose of Family Court setting a schedule for the summer visitation. Matter of Daniel RR. v Heather RR., 2023 NY Slip Op 06011, Third Dept 11-22-23

Practice Point: Here the court should not have delegated the authority to schedule visitation to grandfather and father without the agreement of mother, the custodial parent.

 

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THE CLAIM OF SEXUAL ABUSE UNDER THE CHILD VICTIMS ACT MET THE PLEADING CRITERIA OF THE COURT OF CLAIMS ACT; THE FOUR-YEAR TIME FRAME WAS SUFFICIENTLY PRECISE; THE FACTS ALLEGED SUFFICIENTLY STATED THE NATURE OF THE DEFENDANT’S NEGLIGENCE (THIRD DEPT).

The Third Department, reversing the Court of Claims, in a full-fledged opinion by Justice Mackey, determined claimant sufficiently stated a sexual-abuse claim under the Child Victims Act:

The reality is that “in matters of sexual abuse involving minors, as recounted by survivors years after the fact, dates and times are sometimes approximate and incapable of calendrical exactitude” … .Where sexual abuse is alleged to have occurred several decades ago “when the claimant was a child, it is not reasonable to expect the claimant to be able to provide exact dates when each instance of abuse occurred, nor is it required” … . Under the particular circumstances of the case before us, where the events are alleged to have occurred several decades ago, when claimant was a child, we conclude that the four-year time frame pleaded is sufficient … . Accordingly, the Court of Claims should not have granted defendant’s motion to dismiss on the ground that the claim failed to adequately state the time when the claim arose.

Also, contrary to defendant’s contention, claimant sufficiently states the nature of his claim. He alleges that between 1986 and 1990, when he was a minor, he was raped and sexually abused by numerous men in multiple incidents while he was lawfully at the premises; that the abuse was perpetrated “by both employees of [defendant] as well as members of the general public”; that the “majority of these incidents occurred at the premises, more specifically in the bathrooms, stairwells, tunnels, boiler room, and Kitty Carlisle Hart Theater”; that many of the perpetrators “were agents, servants and/or employees of [defendant]”; and that “[t]hese men were known among the community and the children as a sexual predator [sic] yet allowed unfettered access to children.” Claimant also alleges that abusers used their positions of power and authority provided by defendant “to be able to sexually abuse [him] and other boys” and that their abuse “was open and obvious.” Claimant further asserts that defendant negligently retained an abuser “in his position as teacher, coach, and counselor,” despite notice of his propensities, thereby allowing his abuse of claimant and other boys to continue. We conclude that these allegations are sufficient to provide defendant with “an indication of the manner in which . . . claimant was injured and how [defendant] was negligent” … , and thus “defendant cannot reasonably assert that it is unaware of the nature of the claim” … . Because the claim is sufficiently detailed to allow defendant “to investigate the claim and to reasonably infer the basis for its alleged liability” … , it satisfies the nature of the claim requirement of Court of Claims Act § 11 (b). Wright v State of New York, 2023 NY Slip Op 06013, Third Dept 11-22-23

Practice Point: The allegations of sexual abuse within a four-year time frame met the pleading criteria of Court of Claims Act section 11 (b) in that the allegations were sufficiently detailed to determine the nature of the claim and to allow investigation of the claim.

 

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COUNTY COURT FOUND THAT DEFENDANT’S CONFESSION TO SEXUAL INTERCOURSE WITH THE VICTIM WAS NOT CORROBORATED AND DISMISSED THE RAPE COUNTS; THE THIRD DEPARTMENT EXPLAINED THE CRITERIA FOR CORROBORATION EVIDENCE AND FOUND IT SUFFICIENT TO SUPPORT THE RAPE CHARGES (THIRD DEPT).

The Third Department, reversing County Court, determined there was sufficient evidence to corroborate defendant’s confession to having sexual intercourse with the victim. The rape counts of the indictment, therefore, should not have been dismissed:

Where, as here, a defendant has confessed to a crime, he or she “may not be convicted of any offense solely upon evidence of a confession or admission . . . without additional proof that the offense charged has been committed” (CPL 60.50 … ). However, “the minimal statutory corroboration requirement” … “need not establish guilt or every detail of the crime or confession” … and “does not mandate submission of independent evidence of every component of the crime charged” … . Rather, the corroboration requirement is satisfied by “some proof, of whatever weight, that a crime was committed by someone” … . Such proof “may be either direct or circumstantial and does not even have to connect the defendant to the crime” … . “The confession itself provides the means for understanding the circumstances of the transaction” … , and the additional proof required “may be found in the presence of [the] defendant at the scene of the crime, his [or her] guilty appearance afterward, or other circumstances supporting an inference of guilt” … . * * *

… [V]iewing the evidence in the light most favorable to the People, as we must … , the People are entitled — at this juncture — to the inference of guilt that may be drawn from the victim’s physical injuries … . Stated differently, if the victim’s injuries could be consistent with sexual intercourse, then the People are entitled to the benefit of that inference. Further corroboration of defendant’s admission of sexual intercourse may, in our view, be found in his and the victim’s respective — yet consistent — timelines of the events. Although the victim admittedly did not testify that she and defendant engaged in sexual intercourse, defendant’s and the victim’s descriptions of the physical acts performed otherwise were consistent, and the brief period of time during which defendant admitted that he engaged in sexual intercourse with the victim — lasting for perhaps three minutes — was entirely consistent with the victim’s testimony that she lost consciousness for approximately 2 to 10 minutes, before awakening to again discover defendant performing oral sex on her. People v Hart, 2023 NY Slip Op 05763, Third Dept 11-16-23

Practice Point: Here the victim did not allege sexual intercourse but the defendant confessed to having sex with her. County Court dismissed the rape counts finding the confession was not corroborated. The Third Department explained the criteria for corroboration evidence and found it sufficient to support the rape counts.

 

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FATHER’S PETITION FOR MODIFICATION OF CUSTODY BASED PRIMARILY UPON INCREASED TRAVEL TIME BECAUSE OF MOTHER’S MOVE SHOULD NOT HAVE BEEN DISMISSED; THE MAJORITY NOTED MANY REASONING ERRORS AND ORDERED A NEW HEARING IN FRONT OF A DIFFERENT JUDGE; TWO-JUSTICE DISSENT (THIRD DEPT) ​

The Third Department, reversing Family Court, over a two-justice dissent, determined father’s petition for a modification of the custody arrangement based upon mother’s move and the consequent increase in travel times should not have been dismissed. The matter was sent back for a new fact-finding hearing before a different judge:

Applying the correct standard at this procedural stage — providing the father the benefit of every reasonable inference and resolving all credibility questions in his favor … — the father’s proof sufficiently established that, since the entry of the 2012 order, the mother had moved to a different county, which move significantly increased the time and distance required to effectuate custodial exchanges, and that, in the nine years since said order, the mother routinely refused to agree to holiday parenting time for the father. Consequently, the father demonstrated a change in circumstances sufficient to overcome a motion to dismiss … . Matter of Shayne FF. v Julie GG., 2023 NY Slip Op 05767, Third Dept 11-16-23

Practice Point: Increased travel time because of mother’s move supported father’s petition for a modification of custody. The majority found many reasoning errors and ordered a new hearing before a different judge. A two-justice dissent argued the petition was properly dismissed.

 

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THERE WAS A QUESTION OF FACT WHETHER THE STORM-IN-PROGRESS DOCTRINE APPLIED IN THIS SIDEWALK SLIP AND FALL CASE; THEREFORE PLAINTIFFS DID NOT NEED TO DEMONSTRATE THE ICE WAS PREEXISTING (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined there was a question of fact whether the storm-in-progress doctrine applied in this slip and fall case. 

… [I]n this case a trier of fact should be charged with determining whether there was a lull or ongoing storm in progress that supports the continued delay of defendants’ obligation to remedy their premises from hazardous conditions … .

Inasmuch as defendants did not establish that there was a storm in progress, plaintiffs did not need to demonstrate that the ice was preexisting … . To that end, defendants also failed to establish as a matter of law the absence of a hazardous icy condition or whether they had notice and a reasonable period of time to correct such condition. We reach this conclusion particularly in light of the reply affidavit from Altschule [defendants’ meteorologist], who “generally agree[d]” with plaintiffs’ opposing meteorologist that ice may have formed as early as approximately 14 hours prior to the incident — therefore both acknowledging the presence of ice and confirming the maximum duration that it may have existed … . Gagne v MJ Props. Realty, LLC, 2023 NY Slip Op 05769, Third Dept 11-16-23

Practice Point: The jury must decide whether the storm-in-progress doctrine applied in this sidewalk slip and fall. Because the defendants did not demonstrate the doctrine applied, plaintiffs did not need to demonstrate the ice was preexisting.

 

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SENDING THE NOTICE OF FORECLOSURE TO BOTH BORROWERS IN THE SAME ENVELOPE VIOLATED RPAPL 1304 (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the bank in this foreclosure action failed to comply with RPAPL 1304 by sending the notice of foreclosure to both borrowers in the same envelope:

As the Second Department noted, the language of RPAPL 1304 (1) is careful to distinguish a borrower, singular, from borrowers, plural (see Wells Fargo Bank, N.A. v Yapkowitz, 199 AD3d at 134). However, RPAPL 1304 (2), which requires that notices be sent in separate envelopes, only discusses “borrower,” singular (see Wells Fargo Bank, N.A. v Yapkowitz, 199 AD3d at 134; RPAPL 1304 [2]). In that case, the Court also drew attention to the fact that, although it is possible that whichever borrower reads the notice would alert the other borrower of the mailing, this is not always what occurs (see Wells Fargo Bank, N.A. v Yapkowitz, 199 AD3d at 135). Accordingly, we now also adopt the holding of the Second Department in Wells Fargo Bank, N.A. Thus, given that the requisite 90-day notices were jointly addressed to both borrowers, plaintiff did not comply with RPAPL 1304 … . Deutsche Bank Natl. Trust Co. v Zatari, 2023 NY Slip Op 05436, Third Dept 10-26-23

Practice Point: Sending the notice of foreclosure to two borrowers in the same envelope is a violation RPAPL 1304.

 

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PLAINTIFF, WHO FELL FROM A HORSE, COULD SUE UNDER STANDARD PRINCIPLES OF NEGLIGENCE, AS OPPOSED TO THE STRICT LIABILITY THEORY IN THE AGRICULTURE AND MARKETS LAW; PLAINTIFF’S SUIT WAS PRECLUDED BY THE ASSUMPTION OF THE RISK DOCTRINE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined standard negligence principles, not strict liability, applied to this falling-off-a-horse case. Plaintiff, who fell from the horse when the horse stopped suddenly, assumed the risk of such an injury:

Defendant argues that, because the injury at issue was caused by a horse — a domestic animal — plaintiff may only sue in strict liability (see Agriculture and Markets Law § 108 [7]; … ). However, where a plaintiff suffers injuries stemming from horseback riding, such as here, the plaintiff may bring suit against the owner of the horse under traditional negligence standards … . Regardless, the primary assumption of risk doctrine functions as a “principle of no duty,” serving to “den[y] the existence of any underlying cause of action” … . Stanhope v Burke, 2023 NY Slip Op 05427, Third Dept 10-26-23

Practice Point: Plaintiff could maintain a standard negligence action against to owner of a horse stemming from plaintiff’s fall from the horse, as opposed to a strict liability action pursuant to the Agriculture and Markets Law.

Practice Point: Whether plaintiff sued in negligence or strict liability, the assumption of risk doctrine would apply to preclude the action.

 

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PRIOR FORECLOSURE ACTIONS DISMISSED FOR LACK OF STANDING DO NOT ACCELERATE THE DEBT AND THEREFORE DO NOT START THE RUNNING OF THE STATUTE OF LIMITATIONS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the prior foreclosure actions had been dismissed for lack of standing and therefore did not accelerate the debt and did not start the running of the statute of limitations. Here the plaintiffs sought discharge and cancellation of the mortgage on the ground the statute of limitations for a foreclosure action had expired:

Because the 2009 and the 2012 actions were dismissed due to lack of standing by defendant, the debt was not validly accelerated when those actions were commenced. As such, the statute of limitations to foreclose on the mortgage did not start to run. Stated differently, the statute of limitations has not expired. Caprotti v Deutsche Bank Natl. Trust Co., 2023 NY Slip Op 05428m Third Dept 10-26-23

Practice Point: Foreclosure actions dismissed for lack of standing do not accelerate the debt and do not start the running of the statute of limitations.

 

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DEFENDANT’S WAIVER OF APPEAL WAS INVALID; BASED UPON DEFENDANT’S STATEMENTS AT SENTENCING, THE JUDGE SHOULD HAVE INQUIRED ABOUT WHETHER DEFENDANT WISHED TO WITHDRAW HIS PLEA (THIRD DEPT). ​

​The Third Department, reversing defendant’s conviction by guilty plea, determined defendant’s waiver of appeal was invalid and, based upon defendant’s statements at sentencing, the judge should have inquired about whether defendant wished to withdraw his plea:

The People concede … that defendant’s waiver of the right to appeal is invalid, as County Court’s explanation of the waiver “failed to make clear to defendant that the appeal waiver was not a total bar to defendant taking an appeal, and the written waiver was similarly overbroad and did not clarify or supplement the court’s defective colloquy” … . … [D’efendant contends that his plea was not knowing, intelligent and voluntary based upon certain statements that he made at sentencing that raised potential defenses. “A trial court should conduct a hearing or further inquiry when at plea-taking or upon sentencing it appears the defendant misapprehends the nature of the charges or the consequences of the plea” … . “[S]tatements made by a defendant that negate an element of the crime to which a plea has been entered, raise the possibility of a particular defense or otherwise suggest an involuntary plea require the trial court to then conduct a further inquiry or give the defendant an opportunity to withdraw the plea” … .

At sentencing, defendant stated that he was “extremely remorseful and ashamed” for his actions in injuring the victim, but asserted that this occurred after he and the victim had consumed significant amounts of alcohol and the victim became “combative and physical . . . gouging my eyes and face with her fingernails, and then biting my lips, face and hands.” In explanation of his statement, defendant stated that he had wanted “to present evidence and [the] sequence of events.” Despite County Court’s agreement with the People’s voiced concerns that such statements raised the possibility of a defense, the court proceeded to sentence defendant without conducting a further inquiry and without providing him with an opportunity to withdraw his plea. People v Van Alstyne, 2023 NY Slip Op 05423, Third Dept 10-26-23

Practice Point: If the judge does not make it clear that an appeal waiver is not a complete bar to taking an appeal the waiver of appeal is invalid.

Practice Point: Here the defendant’s statements at sentencing raised the possibility of a defense to the charges. The judge should have inquired whether defendant wanted to withdraw his plea.

 

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