You are here: / Third Department

Tag Archive for: Third Department

, ,

THE DEPARTMENT OF FINANCIAL SERVICES’ AMENDMENT TO AN INSURANCE REGULATION DESIGNED TO PROTECT CONSUMERS OF LIFE INSURANCE AND ANNUITY PRODUCTS IS VOID FOR VAGUENESS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Egan, reversing Supreme Court, determined the Department of Financial Services’ (DFS’s) amendment to an Insurance Regulation was void for vagueness:

The amendment was promulgated to address concerns with respect to the growing complexities involved with life insurance and annuity products, the corresponding need for consumers to increasingly rely on the advice of professionals in order to comprehend the widening market of products available and to mitigate abuses with respect to the compensation of agents and brokers (hereinafter collectively referred to as producers [see 11 NYCRR 224.3 (c)]) who have incentive to manipulate consumers into purchasing financial products that result in higher commissions but ultimately fail to meet their needs. * * *

… [W]hile the consumer protection goals underlying promulgation of the amendment are laudable, as written, the amendment fails to provide sufficient concrete, practical guidance for producers to know whether their conduct, on a day-to-day basis, comports with the amendment’s corresponding requirements for making recommendations and compiling and evaluating the relevant suitability information of the consumer … . Although the amendment provides certain examples of what a recommendation does not include (i.e., “general factual information to consumers, such as advertisements, marketing materials, general education information” and “use of . . . interactive tool[s]” (11 NYCRR 224.3 [e] [2]), the remaining definitional language is so broad that it is difficult to discern what statements producers could potentially make that would not be reasonably interpreted by the consumer to constitute advice regarding a potential sales transaction and therefore fall within the purview of the amendment (see 11 NYCRR 224.3 [e] [1], [2]). Matter of Independent Ins. Agents & Brokers of N.Y., Inc. v New York State Dept. of Fin. Servs., 2021 NY Slip Op 02574, Third Dept 4-29-21

 

, ,

DEFENSE COUNSEL EXPLAINED HIS STRATEGIES BEHIND WAIVING THE HUNTLEY HEARING AND REFRAINING FROM CONSULTING AND PRESENTING EXPERTS IN THE DEFENDANT’S FIRST DEGREE RAPE TRIAL; THEREFORE DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS WAS PROPERLY DENIED (THIRD DEPT).

The Third Department, over a dissent, determined that defense counsel, at the hearing on defendant’s motion to vacate his conviction on ineffective assistance grounds, adequately explained the strategic reasons for waiving the Huntley hearing and not consulting experts in this first degree rape case. Defendant was charged with having sex with a woman who was incapable of consent due to intoxication. Defendant was not read his Miranda rights until well into the police interrogation:

In support of his belief that the admission of the statements would be beneficial, counsel explained that defendant had maintained throughout the interview that the victim was an active and willing participant in the sexual encounter and that, if the statements were suppressed, the jury would only hear about the changes that defendant had made to his story when, as expected, he testified at trial and was cross-examined about them … . In contrast, if the entire interview were put into evidence with appropriate redactions, the defense would benefit from having the jury repeatedly hear defendant’s exculpatory version of events and be assured that almost all of his account had remained consistent over time. Counsel further believed that any damage caused by the jury seeing defendant walk back aspects of his story could be ameliorated, reasoning that jurors could be persuaded to sympathize with a “desperate” and “confused” defendant who wavered on a few points after prolonged, increasingly hostile questioning, but remained “adamant that everything that had just happened was consensual and [that the victim] was awake for it.” …

… [A]lthough defendant complains that counsel failed to consult with experts or present their testimony to rebut proof related to the victim’s sexual assault examination, her degree of intoxication and the presence of defendant’s genetic material in her anus, the hearing evidence reflected that counsel “had a strategic reason for [that] failure” … . … A finding that the victim was alert and willing would have … resulted in defendant’s acquittal on all charges, and counsel made the tactical decision to focus on that issue to the exclusion of murkier battles over whether the alleged anal sexual conduct had occurred or whether some of the conclusions drawn by the People’s experts were open to question. Counsel explained that he chose that course because of emotionally charged testimony from the victim, the sexual assault nurse examiner and others, all of whom he realized posed a real danger of inflaming the sympathies of the jury against defendant. As such, counsel viewed it as essential to present a narrowly tailored defense that kept the jury “singl[ed] in on” concrete facts pointing to the victim as an active participant in the sexual encounter. People v Sposito, 2021 NY Slip Op 02441, Third Dept 4-21-21

 

,

ALTHOUGH THE EVIDENCE SUPPORTED A LEVEL TWO RISK LEVEL CLASSIFICATION, COUNTY COURT DID NOT ADDRESS DEFENDANT’S REQUEST FOR A DOWNWARD DEPARTURE; REVERSED AND REMITTED (THIRD DEPT).

The Third Department, reversing County Court, determined the level two risk level classification was supported by the evidence, but the matter must be reversed and remitted because County Court did not address defendant’s request for a downward departure:

Defendant … contends that County Court abused its discretion in denying his request for a downward departure to a risk level one classification. The record discloses that defendant made such request early in the hearing, in the event that the court placed defendant in the risk level two classification, and submitted a psychological treatment summary in support thereof. Although the summary was received into evidence and reviewed by the court, the court did not address defendant’s request but proceeded to consider the substantive risk factors, ultimately concluding that defendant should be placed in the risk level two classification. Significantly, as the record does not contain any findings or conclusions with respect to defendant’s request, we are unable to ascertain the court’s reasoning for implicitly denying it. Consequently, we “reverse and remit so that County Court may ‘determine whether or not to order a departure from the presumptive risk level indicated by the offender’s guidelines factor score’ and to set forth its findings of fact and conclusions of law as required” … . People v Conrad, 2021 NY Slip Op 02194, Third Dept 4-8-21

 

,

SENTENCES FOR THE SALE OF TWO DRUGS IN THE SAME TRANSACTION SHOULD HAVE BEEN IMPOSED CONCURRENTLY (THIRD DEPT).

The Third Department determined the sentences for two counts of criminal sale of a controlled substance should run concurrently because they were committed during a single transaction:

… [T]he People failed to prove that defendant committed two separate and distinct acts. Counts 1 and 2 were for criminal sale of a controlled substance in the third degree — one for each drug; thus, the actus reus elements are the same … . The record reveals that the CI made arrangements for one sale to take place and defendant engaged in a single transaction — one sale of two controlled substances. The sale occurred in defendant’s vehicle where there was an exchange of money for one bag of drugs, containing two smaller bags of drugs. As the offenses were committed through one single distinct act, the sentences imposed on counts 1 and 2 should run concurrently … . People v Muniz, 2021 NY Slip Op 02023, Third Dept 4-1-21

 

,

FATHER’S EXCUSE FOR NOT APPEARING (HE OVERSLEPT) WAS REASONABLE UNDER THE CIRCUMSTANCES AND FATHER DEMONSTRATED A MERITORIOUS DEFENSE TO THE GRANDPARENTS’ PETITION FOR CUSTODY OF THE CHILD; DEFAULT CUSTODY ORDER VACATED AND MATTER REMITTED FOR A HEARING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined father’s motion to vacate the order granting, without a hearing, custody of the child to the grandparents should have been granted. The Third Department found that father’s failure to appear was excusable (he overslept) and father had a meritorious defense to the grandparents’ application for custody:

Although oversleeping may not ordinarily constitute a reasonable excuse, we find such excuse to be reasonable under the particular circumstances of this case … . …

… [B]efore Family Court may award custody to a nonparent, it must have first made a finding of extraordinary circumstances and then determined that such award is in the child’s best interests … . …

… .Family Court failed to conduct an evidentiary hearing and make the requisite extraordinary circumstances and best interests findings prior to awarding the grandparents permanent custody of the child. … Family Court’s failures in this regard, together with the father’s superior claim to custody of the child, constitute a meritorious defense … . Matter of Melissa F. v Raymond E., 2021 NY Slip Op 02026, Third Dept 4-1-21

 

, ,

WARREN COUNTY DID NOT HAVE “PARTICULAR EFFECT” JURISDICTION OVER CRIMINAL OFFENSES ALLEGED TO HAVE BEEN COMMITTED IN SARATOGA COUNTY (THIRD DEPT).

The Third Department determined the Article 78 prohibition petition was the appropriate vehicle for raising the issue whether Warren County had jurisdiction over offenses alleged to have been committed in Saratoga County. The Third Department held the charges could not be brought in Warren County under the so-called “particular effect” rationale (i.e., the argument that the offenses had a “particular effect” on Warren County). The petitioner, who resided in Warren County, was charged with grand larceny and other offenses alleged to have been committed when petitioner was treasurer of Lake George EMS involving bank accounts in Saratoga County:

Respondent failed to demonstrate that the evidence before the grand jury established that Warren County has particular effect jurisdiction over the instant crimes. Respondent submitted his paraphrased testimony of one witness, whose familiarity with Lake George EMS and/or source of information was not disclosed. According to respondent, the witness testified that petitioner stole money from Lake George EMS at a time when he knew the organization was having difficulty meeting payroll. Based on this testimony, respondent argued that petitioner’s conduct “was likely to create a situation where emergency medical services would be restricted or discontinued by the Lake George [EMS] thus having a materially harmful impact upon the community welfare.” In our view, such testimony fails to demonstrate a concrete and identifiable injury to the Warren County community. Matter of Gentner v Hall, 2021 NY Slip Op 02028, Third Dept 4-1-21

 

, ,

THE DEFENDANTS SOUGHT REFORMATION OF AN INSURANCE POLICY ALLEGING THE FAILURE TO NAME THEM INDIVIDUALLY AS INSUREDS WAS DUE TO A MUTUAL MISTAKE; THE 3RD DEPARTMENT, OVER A TWO-JUSTICE DISSENT, REVERSED SUPREME COURT AND HELD THE COMPLAINT FAILED TO STATE A CAUSE OF ACTION (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined defendant property owners (Pollards) did not state a cause of action for reformation of an insurance policy based upon mutual mistake. Defendants’ tenant slipped and fell on a staircase outside his apartment at 192-198 Main Street and made a claim against defendants. Defendants’ business, Pollard Excavating, was insured. The insurer disclaimed coverage of the slip and fall at defendants’ apartment because the policy covered only defendants’ business:

The Pollards … allege that they believed that they were covered in their individual capacities and that the failure of [the insurer] to name them as such was the product of a mutual mistake. “It is well established that when interpreting an insurance contract, as with any written contract, the court must afford the unambiguous provisions of the policy their plain and ordinary meaning” … .

… [T]he … third-party complaint asserts that the Pollards own the buildings located at 192-198 Main Street and that they are shareholders of Pollard Excavating and Pollard Disposal. The coverage form contained in the policy issued to Pollard Excavating specifically identifies the insured under the policy as a “corporation in the business of excavating” and further identifies, as relevant here, that “your stockholders are also insureds, but only with respect to their liability as stockholders.” Inasmuch as the express provisions of the insurance policy contract do not include individual coverage for the Pollards, it was incumbent upon the Pollards to allege sufficient facts showing mutual mistake. To that end, the second amended third-party complaint fails to contain any factual allegations that [the insurer] agreed to provide coverage to the Pollards in their individual capacities or that any oral agreement was reached by which [the insurer]  was obligated to do so. We therefore find that the … third-party complaint fails to allege with sufficient particularity that the parties “reached an oral agreement and, unknown to either [party], the signed writing does not express that agreement” … . Hilgreen v Pollard Excavating, Inc., 2021 NY Slip Op 02031, Third Dept 4-1-21

 

,

PLAINTIFF ESTATE MET THE CRITERIA FOR ATTACHMENT AGAINST REAL PROPERTY OWNED BY DEFENDANTS WHO OWNED AND/OR OPERATED A LIMOUSINE RENTAL SERVICE; THE LIMOUSINE WAS INVOVLED IN A HORRIFIC ACCIDENT KILLING PLAINTIFF’S DECEDENT AND 19 OTHERS (THIRD DEPT).

The Third Department, affirming Supreme Court, over a concurring memorandum, determined the criteria for attachment were met by plaintiff against real property owned by the Hussain defendants. The Hussain defendants owned and/or operated a business which rented a limousine involved in an accident killing plaintiff’s decedent and 19 others:

Plaintiff demonstrated a probability of success on his claims [relating the maintenance of the limousine].

Plaintiff … pointed to CPLR 6201 (3), which, because he is likely to succeed in recovering a money judgment against defendants, applies if defendants “assigned, disposed of, encumbered or secreted property,” or were about to do so, with the “intent to defraud [their] creditors or frustrate the enforcement of a judgment that might be rendered in plaintiff’s favor” … . … As “[t]he mere removal or assignment or other disposition of property is not grounds for attachment,” however, plaintiff was further required to show that defendants offered the four properties for sale with the requisite intent to either defraud their creditors or frustrate a potential money judgment  … . …

Plaintiff … met his burden of showing that defendants harbored the requisite intent in attempting to dispose of the parcels at issue and, in the absence of any proof to rebut that showing, he was properly granted confirmation under CPLR 6201 (3) … . …

Plaintiff was … entitled to confirmation with regard to Shahed Hussain because he was “a nondomiciliary residing without the state” within the meaning of CPLR 6201 (1). Plaintiff represented, with support from annexed newspaper accounts, that Shahed Hussain left New York for Pakistan in March 2018 and had no plans to return to the United States. Halse v Hussain, 2021 NY Slip Op 02032, Third Dept 4-1-21

 

,

FAMILY COURT SHOULD NOT HAVE REFUSED FATHER’S COUNSEL’S OFFER TO REMAIN AS STANDBY COUNSEL AND SHOULD NOT HAVE ALLOWED FATHER TO REPRESENT HIMSELF WITHOUT WARNING FATHER OF THE DANGERS OF SELF-REPRESENTATION (THIRD DEPT).

The Third Department determined Family Court did not abuse its discretion in refusing to assign counsel to father in this child support proceeding, but Family Court should have conducted a right-to-counsel inquiry before allowing father to represent himself, especially in light of father’s counsel’s offer to remain on standby:

English is not the father’s first language. Although he had appeared in Family Court many times, he had been chastised for failing to appreciate the role of counsel, and the court had noted that his prior pro se submissions were inappropriate or inadequate … . Moreover, there was a critical error in holding that the discharged counsel could not be allowed to remain as standby counsel … . For these reasons, although the father’s request to represent himself was unequivocal, we cannot find that the waiver of his right to counsel at the confirmation hearing was voluntary, knowing and intelligent, based upon the court’s failure to make an appropriate warning of the dangers of so proceeding, coupled with the refusal to allow counsel to remain on standby … . Matter of Saber v Saccone, 2021 NY Slip Op 01811, Third Dept 3-25-21

 

, , , ,

THERE IS NO NEED TO FILE AN AFFIDAVIT OF SERVICE AFTER SERVICE OF A WARRANT AND NOTICE OF EVICTION; THE MATTER WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined that the failure file an affidavit of service after serving the warrant and notice of eviction did not affect the validity of the service of the warrant of eviction which triggers the 14-day waiting period before execution of the warrant. The court noted that the matter was moot because the petitioner was subsequently evicted based on a different warrant, but the matter should be heard on appeal because the circumstance is likely to recur. The two dissenters argued the mootness of the matter precluded appeal:

… [T]he issuance of a warrant is the court’s last act in a summary proceeding, as denoted by the phrase, “Upon rendering a final judgment for [the owner], the court shall issue a warrant” (RPAPL 749 [1]). The execution of the warrant terminates the lease … . Likewise, the execution of the warrant terminates the summary proceeding and the jurisdiction of the court …  Because the court no longer has jurisdiction, the filing of the affidavit of service is superfluous. This stands in stark contrast to the purpose of the affidavit of service at the commencement of the summary proceeding, where it suffices as proof that the party was properly served pursuant to law, as proper service is required to bring a respondent within the jurisdiction of the court … .

… [W]e find that filing the affidavit of service at the conclusion of service of a warrant of eviction is not required, and the 14-day notice begins the day following the date of service, posting or mailing, whichever is later … . Matter of Dixon v County of Albany, 2021 NY Slip Op 01819, Third Dept 3-25-21

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy