Court Filings

The Appellate Division affirmed the Supreme Court's January 22, 2024 order in a mortgage foreclosure action brought by Bank of America against Muhammad and Zubaida Sarwar. The trial court granted the bank summary judgment on the complaint as to the Sarwars, struck two affirmative defenses/counterclaims alleging a fraud/conspiracy and that bank employees facilitated illegal activity, and ordered reference. The appellate court agreed that Muhammad was precluded from testifying because he failed to complete his deposition as directed, declined to consider his affidavit, and found the defendants failed to raise a triable issue that the named bank employees had actual or apparent authority to bind the bank. Costs were awarded to the bank.

The Appellate Division, Second Department affirmed a lower court judgment that Amtrust North America must defend Authority Fleet Services and related plaintiffs in an underlying personal-injury lawsuit arising from a September 30, 2022 construction accident. The court held that the underlying complaint, liberally construed, reasonably suggested a possibility of coverage under the employer's workers' compensation and employers' liability policy, triggering the insurer's broader duty to defend. Because Amtrust failed to show there was no possible factual or legal basis for indemnity, the court affirmed the grant of summary judgment requiring Amtrust to defend the insureds.

The Appellate Division, Second Department affirmed the Court of Claims' dismissal of Mansoor Alam's claim against the State of New York. Alam had sued under 42 U.S.C. § 1983 and for intentional infliction of emotional distress after New York City Department of Social Services accepted his Medicaid application but required a monthly spenddown, which he said left him unable to cover living expenses. The court held the claim necessarily required review of an administrative agency determination and therefore fell outside the Court of Claims' subject-matter jurisdiction; such challenges must be pursued in Supreme Court by an Article 78 proceeding.

The Appellate Division, Second Department affirmed the Supreme Court's denial of the defendants' motion to vacate a default judgment and for a protective order. The plaintiff obtained a judgment after the defendants failed to appear or oppose a summary-judgment-in-lieu-of-complaint motion seeking rent and damages under a commercial lease and guaranty. The defendants later moved under CPLR 5015(a)(1) to vacate the November 2020 judgment and under CPLR 5240 to vacate restraining notices on bank accounts; the court found their excuses for default unreasonable and declined to disturb the restraining notices because they were needed to secure enforcement of the judgment.

The Appellate Division, First Department affirmed the Supreme Court's denial of plaintiff Moises Ramirez's motion for partial summary judgment on a Labor Law § 240(1) claim against 2500 Webb LLC. The court found that genuine issues of fact remained about which object struck the plaintiff (horizontal versus vertical pipe/post), whether that object was a target of disassembly when the injury occurred, and whether a safety device was available that would have prevented the accident. Because these disputed facts are material to liability under Labor Law § 240(1), summary judgment was properly denied.

The Appellate Division, First Department affirmed defendant Khalil Wisdom's conviction after a jury trial for two counts of criminal possession of a weapon in the second degree and the concurrent 12-year sentences imposed as a second violent felony offender. The court also affirmed the denial of his CPL 440.10 motion to vacate the judgment alleging ineffective assistance and newly discovered evidence. The court concluded counsel provided effective representation under state and federal standards, any alleged failures did not prejudice defendant given overwhelming video and other evidence, and the trial court properly declined various jury instructions and a new-evidence hearing.

The Appellate Division, First Department affirmed defendant Yordani Urena’s conviction following a guilty plea to second-degree assault and the three-year probation sentence, but modified the probation by striking fees and mandatory surcharge. The court declined to review an unpreserved facial constitutional challenge to a probation condition restricting association and places, and alternatively rejected the challenge on the merits. The court found the association/frequenting condition reasonably necessary given the violent nature of the offense, but concluded that imposing court fees and the mandatory surcharge was not related to rehabilitation and therefore removed that condition.

The Appellate Division, First Department affirmed the Bronx County Supreme Court's June 14, 2021 judgment in People v. Gonzalez. Carlos Gonzalez appealed his conviction and sentence; the appellate panel reviewed the arguments, found the sentence was not excessive, and unanimously affirmed the trial court judgment. The court provided no extended opinion or new legal rule, simply announcing affirmation and referring appellant's counsel to the court's rule § 606.5 regarding appellate practice matters.

The First Department unanimously affirmed Supreme Court's order dismissing Yolanda Murray's complaint against Planned Parenthood as time-barred and for failure to state a viable claim. The court held Murray's claims arising from alleged 1996 misconduct did not fall within the Adult Survivors Act because the complaint did not allege criminal conduct enumerated by that statute, and the Child Victims Act revival window had already closed. The court also found that, even on the merits, Murray failed to plead facts showing Planned Parenthood's knowledge of the provider's dangerous propensities, control over the local affiliate, or any valid alter-ego theory, and there was no evidence of judicial bias.

The Appellate Division, First Department granted the Attorney Grievance Committee's motion for reciprocal discipline and suspended attorney Tamar Toledano from the practice of law in New York for four months, effective 30 days from the order. The suspension follows Toledano's consent to a four-month USPTO suspension for violating USPTO trademark signature and conduct rules, and her admission in a USPTO settlement that she permitted non-signatories to sign trademark filings and failed to timely notify clients about a referring firm's fraud. The court found New York rules substantially similar and imposed reciprocal discipline on consent.

The Appellate Division, First Department granted the Attorney Grievance Committee's motion for an immediate interim suspension of attorney William John Lloyd King. The court found uncontroverted documentary evidence — bank records and King's written admission — that he converted or misappropriated $17,420 in a client's funds to satisfy a gambling addiction. The court rejected King's request for diversion or a disability suspension, concluding his misconduct posed an immediate threat to the public and that addiction-based mitigation, restitution, or brief recovery efforts do not prevent an interim suspension pending any formal charges.

The Appellate Division, First Department affirmed the trial court's grant of summary judgment dismissing Harvey's personal-injury complaint arising from a May 2020 motor vehicle accident. Defendants (the New York Foundling Hospital and others) presented expert reports and MRI comparisons showing plaintiff's cervical, lumbar, and right-shoulder conditions were preexisting, chronic, and degenerative from a prior March 30, 2019 crash, not caused by the 2020 accident. The court held plaintiff's expert failed to meaningfully dispute the prior-accident causation, so she could not meet the statutory threshold for a serious injury under Insurance Law § 5102(d).

The Appellate Division, First Department affirmed a lower court order denying the insurer Mountain Valley Indemnity Company's summary judgment motion to dismiss an insureds' fire-damage complaint. The insurer argued the dwelling was a three-family property (allowing a coverage disclaimer) based on the basement configuration, while the insureds said it was two-family and the basement was shared family space. The court found disputed facts about the basement's physical separation, usage, and the investigator's qualifications, so summary judgment was improper and the case must proceed.

The Appellate Division, Fourth Department affirmed Supreme Court’s grant of summary judgment dismissing plaintiff’s dental malpractice complaint against the Deol defendants. Plaintiff sued for injuries from root canals performed by an endodontist, Dr. Taggar, who practiced at premises operated by the Deol defendants. The court concluded Taggar was an independent contractor, not an employee, and the Deol defendants neither controlled his professional work nor actually supervised him, so they are not vicariously or directly liable. Plaintiff’s opposition lacked admissible evidence to create a triable issue of fact.

The Appellate Division, Fourth Department affirmed a Supreme Court order dismissing plaintiff Varma's complaint against Allstate and Wayne LeVan. The court held the complaint was barred by res judicata because the claims — challenging termination and asserting breach based on the same agency agreement and incorporated supplement — either were raised or could have been raised in an earlier action between the same parties. The court also held that the prior dismissal and the denial of leave to amend had preclusive effect because the new complaint mirrors the proposed amended pleading previously rejected on the merits.

The Appellate Division, Fourth Department, unanimously affirmed a lower court order denying plaintiff Jeremiah Smith's motion for leave to amend his complaint against the City of Buffalo, its police department, and unnamed officers. The appeal challenged Supreme Court (Erie County)'s November 12, 2024 decision refusing permission to amend, but the appellate court found no reversible error and denied relief. The appellate decision is brief and affirms the trial court's exercise of discretion without further elaboration in the slip opinion.

The Appellate Division affirmed a divorce judgment, modifying it to reduce the required life insurance the husband must carry from $750,000 to an amount equal to the remaining unpaid maintenance and allowing a declining term policy. The court upheld the equitable distribution, the sale of marital real estate, the maintenance award (including using the statutory income cap), and the attorney-fee award, rejecting claims of dissipation and insufficient property valuation. The cross-appeal succeeded only on the life-insurance security amount, which the court held should track the unpaid maintenance balance and decline as payments are made.

The Appellate Division, Fourth Department affirmed an order of the Court of Claims that granted the administrator of Kaazim Freeman’s estate leave to amend her wrongful-death claim against the State and denied the State’s motion to dismiss. The court held that the proposed amendments related back to the original claim for statute-of-limitations purposes because they arose from the same occurrence — Freeman’s unexplained death in state custody — and that the State failed to show prejudice from the delay. Consequently, amendment was properly allowed under CPLR 3025 and CPLR 203(f).

The Appellate Division, Fourth Department unanimously affirmed a March 28, 2025 Oswego County Court order classifying defendant Alexander R. Watros as a Level Two sex offender under New York's Sex Offender Registration Act (SORA). The court reviewed the county court's risk-level determination and found no basis to disturb it. Because the Appellate Division affirmed, the Level Two classification and its attendant registration and community-notification requirements remain in effect.

The Appellate Division, Fourth Department affirmed defendant Terrell L. Walker's conviction for driving while ability impaired. The court had previously reserved decision and remitted the case to Monroe County Court to resolve whether the People were required to obtain DMV refusal-hearing transcripts or recordings under the statutory discovery and whether any failure violated defendant's speedy-trial rights. On remand the court denied the motion to dismiss, and this court upheld that ruling, concluding the DMV materials were not in the prosecution's possession or deemed to be in possession and thus were not required to be obtained or listed in the certificate of compliance.

The Appellate Division, Fourth Department affirmed defendant Bounleaung Thanthima’s convictions for predatory sexual assault against a child and endangering the welfare of a child. On appeal the defendant argued the jury heard evidence of oral sexual acts not specifically described to the grand jury, alleged prosecutorial misconduct, and ineffective assistance of counsel. The court held the indictment and bill of particulars were broad enough to cover the testimony, found the claimed prosecutorial errors either unpreserved or harmless, and determined defense counsel’s choices were strategic and did not amount to ineffective assistance. The sentence was upheld as not unduly harsh.

The Appellate Division, Fourth Department affirmed a June 25, 2024 judgment convicting Carol Steinagle after she pleaded guilty to second-degree kidnapping (Penal Law § 135.20). The defendant argued on appeal that her plea was not knowing and voluntary and that her sentence was harsh. The court found the claim unpreserved because she did not move to withdraw the plea or vacate the judgment, declined to review it in the interest of justice, and rejected the claim that the sentence was unduly harsh, so the conviction and sentence were affirmed.

The Appellate Division, Fourth Department affirmed defendant Joseph Serrano’s convictions for second-degree murder and two counts of second-degree criminal possession of a weapon. The court reviewed the trial record and concluded the guilty verdicts were not against the weight of the evidence, crediting eyewitness testimony supported by ballistics. The court rejected or found unpreserved Serrano’s claims about confrontation, suppression of statements, suggestive identification, grand jury misconduct, discovery sanctions, prosecutorial misconduct, juror misconduct, late expert disclosure, and ineffective assistance of counsel, concluding none warranted reversal or a new trial.

The Appellate Division, Fourth Department affirmed defendant Markeef Royal’s convictions following a jury trial for second- and third-degree criminal possession of a weapon. The court rejected Royal’s double jeopardy claim that an earlier trial judge declared a mistrial without consent and without necessity, concluding defense counsel implicitly consented to the mistrial. The court also rejected challenges to a prospective juror for cause, claims of ineffective assistance of counsel, and a constitutional attack on Penal Law § 265.03(3) after Bruen, and found the sentence not unduly harsh.

The Appellate Division, Fourth Department affirmed defendant Christopher O'Neal Jr.'s conviction following his guilty plea to criminal possession of a weapon in the second degree. The court held that O'Neal validly waived his right to appeal, and that the oral waiver cured any deficiency in establishing on the record his understanding of the written waiver. The court also rejected his claim that the trial court erred in denying a hearing on his motion to withdraw the plea based on ineffective assistance of counsel, finding nothing in the record undermined counsel's effectiveness and that credibility issues could be resolved without a hearing.

The Fourth Department affirmed defendant Kenneth Nixon’s convictions entered after he pleaded guilty to two counts of criminal possession of a weapon in the second degree and two counts of menacing a police or peace officer. The court held that the waiver of appeal obtained during a court-initiated plea was invalid because the record did not show a distinct and proper reason for conditioning the plea on an appeal waiver. On the merits, the court found no error in the court’s revocation of interim probation after a sufficient summary hearing showing Nixon violated curfew and failed to report to his probation officer, and it declined to grant youthful offender status.

The Appellate Division, Fourth Department affirmed defendant Kenneth T. Mountzouros's convictions (jury verdict) for sexual abuse in the first and second degrees and two counts of forcible touching. The court rejected challenges that the indictment was duplicitous, that the first-count time frame rendered it defective, and that the court erred by admitting victim testimony about uncharged acts and expert testimony about child sexual abuse accommodation syndrome. Several preservation failures also prevented review of other claims. The court noted the Livingston County District Attorney failed to file an opposing brief on appeal.

The Appellate Division, Fourth Department, unanimously affirmed defendant James A. Moore’s conviction following a jury trial. Moore was convicted of three counts of first-degree sexual abuse and one count of second-degree escape. The court issued a brief order affirming the underlying Supreme Court, Monroe County judgment, adopting the same memorandum opinion issued in the companion appeal listed as Appeal No. 1. No change to the convictions or sentence was made by this decision.

The Appellate Division, Fourth Department affirmed defendant Curtez McLaurin’s conviction following a jury trial for second-degree murder (felony murder), attempted first-degree robbery, and second-degree criminal possession of a weapon. The court rejected McLaurin’s request for a manslaughter-in-the-second-degree jury charge because that offense is not a lesser included offense of felony murder, and found no prejudice from the omission as McLaurin had been acquitted of intentional murder. The court also declined to review an unpreserved challenge to a supplemental jury instruction, found the verdicts were not against the weight of the evidence, and affirmed the sentence as not unduly harsh.

The Appellate Division, Fourth Department affirmed defendant Carlos Machado-Garcia’s convictions following a jury trial for multiple theft-related offenses, including two counts each of third-degree criminal possession of stolen property and third-degree burglary, plus attempted grand larceny and fourth-degree grand larceny. The court held the verdicts were supported by evidence (including exclusive possession of a stolen vehicle and conflicting statements to police), denied a severance request because the separate incidents were similar and properly joined, rejected ineffective assistance claims as strategy disagreements or unpreserved, and found the sentence not unduly harsh.