Court Filings

The Appellate Division, Second Department, affirmed the sentence imposed on Tyshaun Holloway after his guilty plea. Holloway challenged the sentence as excessive, but the court held that he had knowingly, voluntarily, and intelligently waived his right to appeal, and that valid waiver bars appellate review of his excessiveness claim. Because the waiver was valid, the court declined to consider the merits of the sentencing claim and affirmed the conviction and sentence imposed by the Supreme Court, Kings County.

The Appellate Division, Second Department affirmed the defendant Lucious Griffin’s convictions following a jury trial for multiple drug and paraphernalia offenses and his sentence. Griffin argued the indictment should be dismissed for violation of his statutory speedy-trial rights because the People’s initial certificate of compliance (COC) omitted certain discovery (including a prisoner movement log and pole camera footage). The court held the initial COC was valid because the People exercised due diligence, promptly disclosed the missing log once discovered, and the defense sought no lesser remedy than dismissal. Several other claims were deemed unpreserved for appeal.

The Appellate Division, Second Department affirmed the defendant Kwauhuru Govan’s convictions for second-degree murder and first-degree kidnapping following a jury trial. The court held the evidence was legally sufficient and not against the weight of the evidence, rejected constitutional and prosecutorial-misconduct claims as unpreserved or without merit, and found the defendant received effective assistance of counsel. The court relied on the criminalist’s testimony as independent analysis and declined to disturb the jury’s credibility determinations, thus affirming the trial court’s judgment and sentence.

The Appellate Division, Second Department affirmed a February 16, 2024 sentence imposed on Darius Drummond following his guilty plea. Drummond challenged the sentence as excessive, but the court held his appellate waiver was valid and therefore bars review of the sentencing claim. Relying on controlling precedent, the court concluded the waiver foreclosed his appeal and affirmed the judgment without reaching the merits of the excessiveness argument.

The Appellate Division, Second Department affirmed the defendant Nelson DeJesus's convictions for two counts of attempted first-degree assault and two counts of second-degree criminal possession of a weapon following a jury trial and sentence. The court rejected the defendant's confrontation-clause challenge to admission of two DNA laboratory files and testimony because the testifying analyst generated and analyzed the relevant DNA profiles. The court also found trial counsel was not ineffective and declined to review other unpreserved issues in the interest of justice.

The Appellate Division, Second Department affirmed four Supreme Court, Kings County judgments convicting Johnnie Corbett after his guilty pleas to various felonies and imposing sentences. The court held Corbett knowingly, voluntarily, and intelligently waived his right to appeal, which bars review of his claim that the sentences were excessive and most ineffective-assistance claims. Corbett's challenge that his pleas were unknowing survived the waiver but was unpreserved and without merit based on the plea allocutions and record. The court therefore affirmed all four judgments.

The Appellate Division, Second Department affirmed the defendant Angel Berrios's conviction following his guilty plea to attempted criminal possession of a weapon in the second degree and the sentence imposed by the Supreme Court, Kings County. The court rejected Berrios's challenge to the denial of his suppression motion because he had validly waived his right to appeal; that waiver bars appellate review of the suppression ruling. Accordingly, the appellate court affirmed the judgment without reaching the merits of the suppression claim.

The Appellate Division affirmed the Supreme Court's order (after reargument) granting the defendants' motion for summary judgment dismissing the plaintiffs' personal injury complaint. The court held the defendants had shown, as a matter of law, that the injured plaintiff did not sustain a serious injury under Insurance Law § 5102(d) and that the plaintiffs failed to raise a triable issue of causation because their expert did not rebut defendants' evidence that the injuries were preexisting and degenerative. The court affirmed on the alternative ground of lack of causation, though it noted some triable issues as to certain injury categories before resolving causation against the plaintiffs.

The Appellate Division affirmed the Supreme Court's order granting Lalezarian Properties, LLC's motion for summary judgment dismissing the plaintiff's amended complaint in a slip-and-fall personal injury action. The plaintiff, a security guard who slipped on ice in an underground garage, sued the alleged property owner. The court held that Lalezarian showed it did not own, manage, operate, or control the property and thus cannot be liable for the hazardous condition, and the plaintiff failed to raise a triable issue of fact. The court therefore properly granted the defendant's motion upon reargument.

The Appellate Division affirmed a Supreme Court order denying Margaret Liu’s motion to vacate a 2018 default judgment awarding Shau Chung Hu $1,480,636.50 in a hybrid proceeding seeking, among other relief, ownership and rescission relating to Lowbet Realty Corp. The Court held Liu’s CPLR 5015(a)(1) motion was untimely because it was made more than one year after service of the judgment, and that her claimed excuse—lack of personal service of the petition—failed because she had filed a notice of appearance and never challenged jurisdiction. The court also rejected relief under CPLR 317 because Liu had appeared in the action.

The Appellate Division affirmed a Family Court order modifying custody and access in related Family Court Act articles 6 and 8 proceedings. After a hearing and an in-camera interview with the child, the Family Court found the father committed assault in the third degree and menacing in the second and third degrees against the child, awarded the mother final decision-making authority, limited the father's parenting time to therapeutic supervised access, denied the father's cross-petition to change custody, and issued a two-year order of protection for the child. The appellate court found no deprivation of the father's right to counsel and found no reversible error.

The Appellate Division, Second Department affirmed a Family Court order resolving where a child should attend school. The parents, who share joint legal custody and alternate weekly parenting time, could not agree on school district enrollment. After a hearing, Family Court granted the father's petition to enroll the child in the South Huntington Union Free School District and denied the mother's petition to enroll the child in the Hauppauge Union Free School District. The appellate court found the Family Court's best-interests determination had a sound and substantial basis, citing the child's benefit from a diverse environment and likely residential stability with the father.

The Appellate Division, Second Department affirmed an amended Family Court order finding the mother neglected one child by inflicting excessive corporal punishment and derivatively neglected the other child. Appeals challenging the release of the children to the father and the dismissal of the mother's custody and visitation petitions were dismissed as academic because subsequent Virginia proceedings and the expiration of supervision rendered those parts moot. The court upheld the directive that the mother submit to a comprehensive mental health evaluation, finding it to be in the children's best interests and supported by the evidence and credibility findings below.

The Appellate Division affirmed a judgment awarding the claimant $15,508,705 as just compensation after the MTA condemned a Queens retail property for elevator renovations at the Flushing Main Street station. Following a nonjury trial, the trial court accepted the claimant's appraisal, which treated the property's highest and best use as one-story retail with development potential and relied on a nearby comparable sale to set a 2.5% capitalization rate. The court rejected the MTA's appraisal, which used a 6.5% cap rate based on national strip-center data and less comparable local transactions, finding the trial court's valuation was within the experts' ranges and adequately explained by the evidence.

The Appellate Division affirmed a Family Court order granting joint custody of a child to the father and the maternal aunt after a combined permanency and fact-finding hearing. The mother appealed, arguing the court failed to ensure she knowingly waived her right to counsel when her appointed lawyer was relieved. The court found that although the Family Court did not conduct the required detailed inquiry at the time of counsel’s withdrawal, the mother’s pattern of conduct — frequent failures to appear, multiple successive attorneys, and delays — supported a finding she forfeited her right to assigned counsel, and the evidence would not have changed the outcome.

The Appellate Division affirmed Family Court orders awarding sole residential and legal custody of a child (born 2013) to the child's paternal aunt and denying the mother's custody petition. The aunt had cared for the child continuously since February 2018 after the mother was arrested and incarcerated and had filed for custody in October 2018; the mother filed her own custody petition in 2021. The court found the aunt proved "extraordinary circumstances" that overcame the parent's superior right and, after considering the child's best interests, concluded the aunt was better able to provide stability and meet the child's needs.

The Appellate Division affirmed a lower court judgment that annulled the Town/Village of Harrison Planning Board's denial of BKP Harrison, LLC's application for amended site plan approval to replace a restaurant with a new restaurant and drive-through. The court held the board's denial was arbitrary and capricious because it relied on speculative traffic predictions, subjective doubts about the applicant honoring delivery-hour commitments, an improper interpretation of zoning (a power reserved to code enforcement and the zoning board of appeals), and a traffic study not shared with the applicant. The appellate court therefore ordered the planning board to grant the application.

The Appellate Division affirmed the lower court's refusal to award additional attorneys' fees to Smart Choice Medical, P.C. after Smart Choice filed its fee submission late and then sought permission to renew based on an argument that the court's briefing schedule postdated its deadline. The court held that Smart Choice's asserted “new” factual basis was actually available earlier and that it failed to offer a reasonable justification for not presenting that information earlier. Because the renewal standard under CPLR 2221(e) was not met, the trial court did not abuse its discretion in denying renewal or awarding additional fees.

The Appellate Division affirmed a Supreme Court judgment refusing to award additional attorneys' fees to Citimed Surgery Center, LLC. Citimed had been directed to file a motion for fees within 30 days after a May 11, 2023 order, but filed late and did not explain the delay. The court denied Citimed's motions as untimely, relying on precedent that court-ordered time frames must be respected to preserve the integrity of judicial orders. Because the second motion was filed beyond the 30-day period, the appellate court held the denial was proper and affirmed.

The Appellate Division affirmed the Supreme Court's judgment confirming a master arbitration award in favor of Bay Ridge Surgi-Center, LLC and refusing to award Bay Ridge additional attorney fees under 11 NYCRR 65-4.10(j)(4). Bay Ridge had sought relief after failing to appear for oral argument and moved to vacate that portion of the prior order and to obtain fees; the court denied the CPLR 5015(a)(1) motion and reargument request. The court held Bay Ridge could not use reargument to raise the fee claim for the first time and that Bay Ridge failed to submit the contemporaneous time records required to justify an award of additional fees.

The Appellate Division, Second Department affirmed the Supreme Court's order granting the plaintiff summary judgment on liability and dismissing the defendants' affirmative defense of comparative negligence in a rear-end collision case. The plaintiff showed he was slowing for a red light when the defendant's vehicle struck his car from behind, establishing a presumption of the defendant's negligence. The defendants' evidence that the plaintiff made a sudden stop and that their car skidded on wet pavement did not provide a sufficient nonnegligent explanation or show the skid was unavoidable, so no triable issue of fact was created.

The Appellate Division, Second Department affirmed a judgment dismissing the plaintiff Alejandro Perez Barranco's claims under Labor Law §§ 240(1) and 241(6) arising from a 2017 ladder fall. The court held the homeowner's exemption protected defendant Marina Fronshtein because the property was a one-family residence and she did not direct or control the work. The court also held defendant Marat Fronshtein was entitled to dismissal under the Workers' Compensation Law exclusivity provision because he and the injured plaintiff were coemployees acting within the scope of employment. The defendants' cross-appeal was rendered academic.

The Appellate Division, Second Department affirmed the Supreme Court's denial of the Reinholds' motion to vacate a March 23, 2022 order that granted JPMorgan Chase leave to enter a default judgment in a mortgage foreclosure. The Reinholds had not answered the foreclosure complaint and did not oppose the plaintiff's motion for default; they later sought relief under CPLR 5015(a) claiming law-office failure and that prior counsel had misled them. The court found their submissions inadequate to show a reasonable excuse for the defaults and therefore properly denied vacatur without reaching whether they had meritorious defenses.

The Appellate Division affirmed the Supreme Court’s grant of summary judgment to the Suffolk County Comptroller in an action converted from a CPLR article 78 proceeding. The court held that Suffolk County may assess hotel and motel occupancy taxes under chapter 523, article II of the Suffolk County Code on the plaintiff’s Fire Island rental property for stays of under 30 consecutive days. The court reasoned that the state enabling statute grants broad authority to impose an occupancy tax and that the statutory and local definitions of “hotel or motel” are sufficiently broad to include the plaintiff’s short-term rentals.

The Appellate Division, Second Department affirmed the trial court's March 7, 2022 order granting defendant Dr. Cassandra B. Simmons summary judgment and dismissing the medical malpractice and lack-of-informed-consent claims against her. The court concluded Simmons met her initial burden by submitting expert affirmation, records, and depositions showing no departure from the standard of care and that she disclosed risks, benefits, and alternatives. The plaintiff's opposing expert was deemed conclusory, speculative, and failed to address Simmons's expert's specific assertions, so no triable issue of fact was shown.

The Appellate Division affirmed a jury verdict and judgment awarding Lueray Dowdy damages for injuries from a slip-and-fall at the Brooklyn Hospital Center cafeteria. The jury found the hospital 60% at fault and the plaintiff 40% at fault, and awarded substantial sums for past and future pain and suffering and future medical expenses. The court rejected the hospital's posttrial challenges to the liability finding, fault apportionment, damages awards, and request for a collateral source hearing, but it modified the judgment to delete a provision directing payment of an attorney fee directly from the defendant to the plaintiff's counsel.

The Appellate Division, Second Department affirmed the Supreme Court's order denying the defendants' motion to vacate a May 25, 2023 judgment and an August 22, 2022 stipulation of settlement in favor of Diesel Funding, LLC. The dispute arose from a receivables-purchase agreement where the lender purchased future receivables for $850,000 and could debit daily sales until receiving $1,274,150; parties later agreed to a settlement that allowed the plaintiff to enter judgment on default. The court concluded the transaction was not a usurious loan because repayment was not absolutely fixed and the agreement included daily-percentage payments, reconciliation procedures, and no finite term or bankruptcy-triggered default.

The Appellate Division, Second Department affirmed the Supreme Court's order granting the City of New York's motion for summary judgment dismissing the plaintiff's personal-injury claim. The plaintiff said she tripped in a pothole in a crosswalk; the City showed it had no prior written notice of the specific defect under the City's Pothole Law. The court found the Big Apple map entries did not put the City on notice of a defect at the exact location of the fall, and the plaintiff did not raise a triable issue that the City created the defect or that an exception applied.

The Appellate Division affirmed a Supreme Court order denying Brooklyn 7 Realty, Inc.'s late renewal motion to reopen and vacate a 2019 foreclosure judgment. Brooklyn 7 sought leave in 2023 to renew its opposition to confirmation of a referee's report, to vacate the foreclosure and dismiss the complaint as time-barred, or to amend its answer to assert a statute-of-limitations defense. The court held the renewal motion was untimely because it was made long after the judgment was entered and after the deadline to appeal had passed, so the lower court properly denied the motion without reaching the parties' other arguments.

The Appellate Division affirmed a judgment dismissing the plaintiffs' consolidated personal-injury claims against defendant Montgomery Realty Associates. After a liability trial, the jury found for Montgomery; the plaintiffs moved to set aside that verdict and for judgment as a matter of law, but the trial court denied the motion. The appellate court held there was sufficient evidence to support the jury verdict because the fire resulted from the contractor's means and methods (use of a torch) rather than a defective condition of the building, so the landlord was not liable as a matter of law under the general rule for independent contractors and applicable exceptions did not apply.