Court Filings

The Appellate Division reversed part of Supreme Court's order and granted the plaintiff leave to amend her complaint to add a negligence claim against the school district. The plaintiff, a former student who was struck on the head in class in 2019, had sought to add negligence after depositions showed the teacher testified the contact was accidental. The trial court had denied the amendment as unexplained delay and prejudicial; the appellate court found no undue delay or surprise, held the proposed negligence claim was not plainly meritless, and concluded the district would not suffer the type of prejudice that justifies denial.

The Appellate Division affirmed defendant Eugene Cobbins' November 30, 2023 conviction following a guilty plea to multiple charges, holding that his custodial statements were knowingly and voluntarily made and not subject to suppression. The court rejected his challenge that delayed filing of charges created a right-to-counsel issue because that right had not yet attached and any statutory-arraignment delay claim was unpreserved. However, the court reversed the February 9, 2024 resentencing on two grand larceny convictions because Cobbins was not produced and there is no indication he knew of or waived his right to be present, and remitted the matter for resentencing on those counts.

The Appellate Division, Third Department reviewed a combined CPLR article 78 petition and plenary action challenging a school board's termination of a bus driver, James Shara, and related claims of retaliatory discharge and constitutional violations. The court upheld Supreme Court's denial of defendants' motion to dismiss the retaliation claim under Civil Service Law § 75-b and the § 1983 due-process/freedom-of-association claim as sufficiently pleaded, and rejected the defendants' collateral estoppel argument because they did not provide the PERB record. But the court reversed as to claims brought against individual school officials, concluding plaintiff failed to plead their personal involvement. The order was otherwise affirmed.

The Appellate Division reviewed a combined CPLR article 78 proceeding and declaratory judgment action by Nicholas Nunez seeking vacatur of a default revoking his license and relief under the Freedom of Information Law (FOIL). The court agreed that Nunez was entitled to vacatur of the administrative default and remanded for a new hearing. It found Nunez substantially prevailed on his FOIL claims because the agency ultimately provided the requested records and metadata, but remanded to Supreme Court to determine whether the agency had a reasonable basis for its initial denial and thus whether Nunez is entitled to statutory counsel fees and costs.

The Appellate Division, Third Department, reversed part of a Supreme Court order that had denied a nursing assistant's motion to compel two internal incident reports (RL6 forms) and granted the hospital a protective order. The plaintiff sued for wrongful termination and retaliation after reporting safety concerns. The court held the hospital failed to carry its burden to show the reports were privileged under New York Education Law § 6527(3) or the federal Patient Safety and Quality Improvement Act, because there was no proof the reports were actually part of a medical peer‑review or submitted to a patient safety organization. The case was otherwise affirmed.

The Appellate Division reviewed a nonjury trial judgment in a contract and related action arising from the 2016 sale of a gas station business. The court modified the trial judgment to declare that plaintiff Yong Xu does not own an interest in defendant 401 Foster Gasoline, Inc., and awarded Xu $60,625.63 on his conversion claim against co-defendant Xiao Yan Wang for withdrawing funds from a joint bank account. As modified, the judgment is affirmed. The court relied on the asset purchase agreement's clear written terms and the parol evidence rule to reject oral-contract and fraud claims, but found evidence supported Xu's conversion claim against Wang as to funds taken beyond her one-half share of the joint account.

The Appellate Division reviewed a County Court order that had designated Joshua Stewart a level three sexually violent offender under New York's Sex Offender Registration Act after his New Jersey conviction for promoting child prostitution. The court upheld the risk-point scoring and refused a downward departure, finding the Guidelines had adequately considered mitigating factors. However, the panel held that applying Correction Law § 168-a(3)(b) to label him a "sexually violent offender" was unconstitutional as applied because the underlying New Jersey offense would not qualify as a sexually violent offense under New York law. The court therefore modified the designation to "level three sex offender" and affirmed as modified.

The Appellate Division, Second Department, reviewed defendant Andrew Jointe’s challenge to his sentence following guilty pleas to third-degree rape and attempted sex trafficking of a child. The court found the 10-year period of postrelease supervision imposed for the attempted sex trafficking conviction was illegal and reduced it to five years. As modified, the concurrent determinate prison terms of 3.5 years and the remaining 10-year postrelease supervision on the rape conviction were affirmed. The court stated it may correct an illegal sentence even if the issue was not raised below.

The Appellate Division, Second Department, reviewed defendant Darrel Greenlee’s appeal challenging the excessiveness of a nine-year determinate sentence (plus five years postrelease supervision) imposed after his guilty plea to first-degree assault. The court exercised its discretion in the interest of justice and reduced the prison term to seven years while leaving the five-year period of postrelease supervision intact. The court cited sentencing excessiveness principles and People v Suitte in concluding the original nine-year term was greater than warranted and therefore modified the sentence accordingly.

The Appellate Division reviewed a nonjury trial judgment enforcing a 2016 judgment against B & A Demolition and related parties. The court dismissed appeals from two interlocutory orders as moot, modified the trial judgment to dismiss the plaintiffs' veil-piercing claims, but affirmed the trial court's setting aside of two truck transfers as fraudulent under the Debtor and Creditor Law, and awarded costs to the defendants. The court found insufficient proof that the owner exercised complete domination to pierce the corporate veil, but sufficient evidence and badges of fraud to avoid certain transfers and recover attorneys' fees under the fraudulent conveyance statutes.

The Appellate Division suspended attorney Adam Kalish for three years after confirming a Special Referee's findings that he misappropriated client funds held in his escrow (trust) account and engaged in conduct reflecting adversely on his fitness as a lawyer. The Grievance Committee brought a formal disciplinary proceeding based on a large shortfall in Kalish's escrow account. The court sustained two of three charges, rejecting one, and concluded Kalish abdicated his fiduciary responsibilities by allowing investor funds to pass through his trust account without adequate safeguards, failing to investigate or promptly report problems, and relying on an outside referrer despite his knowledge of ethical obligations.

The Appellate Division modified a Supreme Court order in a personal-injury action arising from a table-saw accident. The court held that the lower court erred by granting summary judgment dismissing the Labor Law § 241(6) claim against the property owners (the Cremoux defendants) and by denying leave for the contractor (Scott Bavosa Construction Corp.) to amend its third-party answer. The court found triable issues about whether the homeowner exemption applied and whether Industrial Code violations occurred, and it concluded the insurer-subrogation/antisubrogation defense Bavosa sought to add was not palpably insufficient.

The Appellate Division modified and affirmed in part a Kings County order in a personal-injury action arising from a worker's fall when perimeter safety netting gave way. The court reversed the trial court's grant of summary judgment that had dismissed contractual indemnification claims against the plaintiff's employer, Lippolis, and otherwise affirmed the denials of summary judgment for the defendants and third-party plaintiffs against subcontractor Monolithic. The court held triable issues remained about whether the injuries arose from Monolithic's work, whether the defendants were free from negligence, and whether Monolithic failed to procure required additional-insured coverage.

The Appellate Division reviewed plaintiffs’ appeals from two Supreme Court orders in a dispute over whether plaintiffs (children from the decedent’s first marriage) are entitled to the decedent’s 50% interest in unimproved Martha’s Vineyard property. The court held that the trial court should not have dismissed the complaint on its own motion, but it affirmed the denial of the plaintiffs’ request for a preliminary injunction because the plaintiffs failed to show irreparable harm. The appeal of the denial of reargument was dismissed as not appealable. The case is remanded for further proceedings on the complaint.

The Appellate Division, First Department, reviewed defendant Julsean Thompson’s conviction and sentence following his guilty plea to first-degree custodial interference. The court unanimously modified the trial court’s judgment by reducing Thompson’s term of imprisonment from two-to-four years to 1 1/3-to-3 years as a matter of discretion in the interest of justice, finding the original sentence excessive. In all other respects the judgment was affirmed, leaving the conviction and other components of the trial court’s decision intact.

The Appellate Division, First Department modified a Bronx County judgment that had convicted Angel Rivas, upon a guilty plea, of attempted criminal possession of a weapon in the second degree and sentenced him to five years probation. The court struck six specific probation conditions because they were not reasonably related to Rivas's rehabilitation or necessary to ensure he would lead a law-abiding life. The court reasoned there was no evidence supporting dependence-support, gang affiliation, substance abuse, mental-health treatment, or ignition-interlock requirements, and the People did not oppose removing several of the conditions.

The Appellate Division affirmed defendant Jonathan Sanchez’s convictions for second-degree murder, second-degree attempted murder, and three counts of second-degree criminal possession of a weapon, but reduced his sentence in the interest of justice. The court upheld a protective order that kept a witness’s identity from defendant until shortly before trial, rejected challenges to identification and jury-selection rulings (including a Batson claim), and found the evidence legally sufficient and not against the weight of the evidence. Because the aggregate sentence was excessive compared to codefendants and the defendant’s youth, the court reduced the attempted-murder sentence to a 15-year determinate term, producing a new aggregate of 40 years to life.

The First Department affirmed defendant Jamar Carr’s conviction following a guilty plea to fourth-degree criminal possession of a weapon and three years of probation, but modified the sentence by striking several probation conditions. The court found Carr validly waived most appellate rights, which barred review of his excessive-sentence and many constitutional claims, but allowed review of a Second Amendment challenge and several statutory challenges to probation conditions. The court rejected the Second Amendment claim and upheld certain conditions as reasonably related to rehabilitation, while striking fees, drug testing/treatment conditions, and a gang-association restriction as unsupported by the record.

The Appellate Division reviewed a Family Court order that found a mother abused and neglected her child. The court unanimously vacated the abuse finding against the mother but affirmed the neglect finding. The court concluded the father, who lived with the family, inflicted excessive corporal punishment and sexual abuse, and the mother knew or should have known and failed to protect the child. The appellate court also upheld a neglect finding based on the mother's threat to the child with a knife, by conforming the pleadings to the proof, but found the evidence insufficient to support a finding that the mother committed abuse.

The Appellate Division, First Department modified a lower-court order denying summary judgment to the landlord-defendants on their counterclaim for unpaid rent. The court held defendants were entitled to partial summary judgment that plaintiffs owe use-and-occupancy damages for the period October 2020 through March 2021, when plaintiffs returned to and lived in the apartment after elevator service was restored. The court otherwise affirmed the denial of summary judgment because disputed facts remain about defendants' alleged fraudulent inducement, whether plaintiffs were partially constructively evicted or unreasonably rejected alternative housing, and whether plaintiffs ratified the lease.

The Appellate Division, First Department modified a Bronx Supreme Court order on a Labor Law § 241(6) claim. The court affirmed that plaintiff was entitled to partial summary judgment and defendants were not entitled to dismissal as to Industrial Code §§ 23-1.5(c)(3) and 23-9.2(a) because the grinder lacked a visible guard, the employer had notice, and the unguarded tool was necessary for the work. The court reversed as to Industrial Code § 23-1.5(c)(1), holding that provision is too vague to support liability under Labor Law § 241(6). The remainder of the lower court's order was affirmed.

The Appellate Division reviewed cross-motions for summary judgment about whether two individuals (Maloney and Stern) must indemnify plaintiffs under two paragraphs of limited joinders tied to a joint venture agreement (JVA). The court affirmed the lower court in holding that paragraph (ii) does not obligate Maloney and Stern to indemnify plaintiffs for first-party claims, but it vacated the declaration and denied summary judgment as to paragraph (i) because that paragraph is ambiguous about covering first-party claims. The court relied on Delaware law requiring a clear statement to extend indemnities to first-party claims and found disputed issues of contractual interpretation for paragraph (i).

The Appellate Division, Second Department modified the Supreme Court order by granting the plaintiff's motion for summary judgment on liability in a personal-injury action where the plaintiff's electric bicycle collided with a vehicle while the driver attempted a left turn. The court concluded the driver was negligent as a matter of law for attempting the left turn when it could not be made with reasonable safety, and the defendants failed to raise a triable issue on liability. The court nevertheless affirmed the denial of the plaintiff's separate motion to dismiss the defendants' comparative negligence affirmative defense under CPLR 3211(b).

The Appellate Division, First Department affirmed in part and modified in part the trial court's summary judgment order in a suit by Muslim maintenance workers who refused to shave their beards to pass N-95 fit tests. The court upheld dismissal of plaintiffs' selective-enforcement discrimination claims because the hospital showed a neutral safety-based reason applicable to all Building Services staff. The court reversed to reinstate plaintiffs' claims (including Brian Jones) for failure to accommodate and failure to engage in a cooperative dialogue, finding genuine issues of fact about feasibility of accommodation and whether the hospital cut off interactive discussions.

The Appellate Division reviewed a Family Court disposition that adjudicated 17-year-old Jesus G. a juvenile delinquent after he admitted to taking a car and driving it a short distance before abandoning it. The court affirmed the delinquency finding and 15-month probation but vacated the $1,000 restitution award. The panel held the victim's statements were sufficient to establish replacement cost, but vacated restitution because the juvenile's written admission did not include an agreement to pay restitution and restitution was not sought in the charging document prior to disposition.

The Appellate Division, First Department reviewed an appeal by husband Jerome Dewald from a post-trial family court order that denied him spousal maintenance and awarded the wife $5,500 in counsel fees. The appellate court affirmed the denial of maintenance, finding the trial court permissibly deviated from statutory guidelines after considering factors such as the husband’s age, assets, prior fraud conviction, pendente lite payments, and the short time the parties lived together. However, the court vacated the counsel-fee award because the trial court failed to provide the written findings and reasons required by court rules before imposing such fees.

The Appellate Division reviewed a dismissal of a pro se plaintiff's complaint against multiple insurers and Copart that alleged fraud, conversion, conspiracy and negligent hiring tied to sales of salvaged vehicles and parts. The court affirmed dismissal of the claims against the insurer defendants for lack of personal jurisdiction because the plaintiff served them by certified mail instead of through the strict methods required for corporations. The court reversed the dismissal as to Copart, finding Copart had answered and participated in discovery and therefore had not preserved lack-of-service defenses. The case against Copart is reinstated and returned for further proceedings.