Court Filings

The Appellate Division, Third Department affirmed defendant Jonathan Guerin’s 2019 convictions and prison sentence following his guilty plea to multiple driving-related offenses arising from an April 2018 incident. The court held that challenges to the voluntariness of the plea and to counsel’s effectiveness were unpreserved because defendant did not move to withdraw his plea after allocution, and no statements during the plea colloquy triggered the narrow exception to preservation. The court also found the excessiveness claim moot because defendant has reached his sentence's maximum expiration and is incarcerated on a separate conviction.

The Appellate Division, Third Department affirmed County Court's denial of defendant Alex M. Ferrer's CPL 440.10 motion to vacate his burglary convictions. Ferrer argued trial counsel was ineffective for failing to object to his being fitted with a concealed stun cuff and the presence of SERT officers during trial. After a hearing County Court credited trial counsel's testimony that he was not informed of the device and found counsel's strategy reasonable because the cuff was not visible, alternatives would have been more obvious restraints, and Ferrer was not chilled from testifying. The appellate court deferred to those credibility findings and affirmed.

The Appellate Division, Third Department affirmed Amanda C. Diaz's convictions for aggravated driving while intoxicated with a child passenger, driving while intoxicated, and endangering the welfare of a child. The court reviewed a weight-of-the-evidence challenge and rejected it, finding the jury reasonably credited testimony from two off-duty paramedics and state troopers who observed disorientation, failed field sobriety testing, and admissions of alcohol use over the defendant's sister's contrary testimony. The court also held that a hearsay statement from the child, elicited at trial, was cured by prompt curative instructions and was harmless given the other evidence of guilt.

The Appellate Division, Third Department affirmed a conviction and sentence entered after defendant Abdallah A. Aboueida waived indictment and pleaded guilty to attempted third-degree burglary under a superior court information. County Court imposed the agreed-upon sentence of five years probation. On appeal the defendant argued the sentence was unduly harsh, but the appellate court rejected that challenge as barred by the unchallenged waiver of the right to appeal contained in the plea agreement, and therefore affirmed the judgment.

The Appellate Division, Third Department affirmed the Court of Claims' dismissal of Ernestiaze Moore's claim against the State under the Adult Survivors Act. Moore alleged two sexual assaults by a correction officer and originally filed dates in 2022, but counsel later disclosed the correct dates were in 2023. The Court of Claims found the incorrect year was a jurisdictional defect under Court of Claims Act § 11(b) that could not be cured by amendment, and therefore denied Moore's motion to amend and dismissed the claim. The appellate court concluded the statutory filing requirements must be strictly construed and affirmed.

The Appellate Division, Third Department, denied petitioner Tyrone Winston's CPLR Article 78 challenge to a prison disciplinary finding from Auburn Correctional Facility. The court reviewed the Superintendent's determination that Winston violated a disciplinary rule and concluded the determination should be upheld. The court issued a brief order affirming the disciplinary finding and dismissed the petition, without issuing an opinion explaining its reasoning.

The Appellate Division, Third Department affirmed Family Court's November 25, 2024 order allowing respondent's assigned counsel to withdraw and denying the respondent further assigned counsel in a Family Court Article 8 family offense proceeding. The court found the record shows respondent received notice and opposed the withdrawal, but the attorney-client relationship had irretrievably broken down because respondent repeatedly accused counsel of acting against him and engaged in conduct that frustrated representation. Because respondent had a persistent pattern of causing breakdowns with multiple assigned attorneys, the court concluded further appointments would be futile and that he forfeited the right to additional assignment here.

The Appellate Division, Third Department granted the Attorney Grievance Committee’s motion to immediately suspend Adebukola Ogunsanya from practicing law in New York while it investigates multiple misconduct complaints. The court found she failed to respond to some complaints, did not appear for an examination under oath, and did not produce requested records. Because refusal to comply with investigative demands threatens the public interest and the disciplinary process, the court concluded interim suspension was warranted until further order, with warnings about possible disbarment if she continues not to cooperate.

The Appellate Division, Third Department affirmed Supreme Court's dismissal of Juan Carlos Ocasio's CPLR article 78 petition challenging his honorable discharge from the New York Guard and related FOIL claims. The court held that the challenge to discharge implicated military order and discipline and was therefore nonjusticiable under the intra-military immunity doctrine. The court also found the FOIL claims moot because DMNA had responded to the requests and Ocasio failed to exhaust administrative appeals regarding any alleged inadequacy. The court denied sanctions against the respondent for lack of support in the record.

The Appellate Division, Third Department granted Elizabeth Marie Mills' application to resign from the New York bar for nondisciplinary reasons. The court reviewed Mills' sworn affidavit and the Attorney Grievance Committee's statement of non-opposition, concluded she was eligible to resign under the disciplinary rules, accepted her resignation, struck her name from the roll of attorneys, and ordered her immediately prohibited from practicing or holding out as an attorney in New York. Mills must also surrender any Attorney Secure Pass within 30 days.

The Appellate Division reversed a Supreme Court order that had awarded the mother $108,491.83 in counsel fees and expenses under the International Child Abduction Remedies Act after the court ordered the return of the parties' child to Italy. The panel held that Supreme Court made only conclusory findings and failed to apply the statutory and equitable factors required by ICARA and controlling federal caselaw (including the respondent's burden to show an award would be "clearly inappropriate" and use of the lodestar method to set fees). The matter is remitted for the lower court to consider the proper factors, decide whether an award would be clearly inappropriate, and, if not, calculate an appropriate fee amount.

The Appellate Division, Third Department granted attorney Hideaki Kubo's application to resign from the New York bar for nondisciplinary reasons. The court reviewed Kubo's sworn affidavit and the Attorney Grievance Committee's response, found Kubo eligible to resign under the court's disciplinary rules, accepted the resignation, struck Kubo's name from the roll of attorneys, and ordered Kubo to cease practicing law in New York and to surrender any Attorney Secure Pass within 30 days. The resignation was accepted with immediate effect and without a disciplinary finding.

The Appellate Division, Third Department granted attorney Neal Mitchel Frank's request to resign from the New York bar for nondisciplinary reasons and accepted his resignation. The court reviewed Frank's sworn affidavit and the Attorney Grievance Committee's statement that it did not oppose the application, found him eligible under the applicable disciplinary rules, and ordered his name stricken from the roll of attorneys effective immediately. The court also permanently enjoined him from practicing law in New York and required surrender of any Attorney Secure Pass within 30 days.

The Appellate Division affirmed the Workers' Compensation Board's decision denying claimant Karen Figueroa's request to preclude a September 2023 independent medical examination (IME) report. Figueroa argued the carrier's instructions to the IME physician required a separate IME-3 filing under Workers' Compensation Law § 137, which was not done. The court held the carrier filed an IME-5 with instructions that identified the issues to be addressed, claimant's objection was untimely, and the IME substantially complied with statutory and regulatory requirements, so the report was admissible and the Board did not abuse its discretion.

The Appellate Division, Third Department affirmed the Workers' Compensation Board's decision that claimant James Brognano sustained an accidental injury arising out of and in the course of his employment. The Board found that testimony describing a loud noise in the claimant's cubicle, his subsequent change in appearance and behavior, hospital findings of head bruising, and medical proof of a blunt-force epidural hematoma supported a workplace accident. The employer's challenge that no one observed a fall or could explain the mechanism and its attempts to rebut the presumption of compensability were held insufficient as a matter of substantial evidence.

The Appellate Division, Third Department, granted Lawrence Martin Brody's application to resign from the New York bar for nondisciplinary reasons and accepted his resignation. The court reviewed Brody's sworn affidavit and the Attorney Grievance Committee's lack of opposition, found him eligible under the Rules for Attorney Disciplinary Matters, and struck his name from the roll of attorneys effective immediately. The court ordered that Brody cease practicing law in New York, forbade him from holding himself out as an attorney, and required surrender of any Attorney Secure Pass within 30 days.

The Appellate Division, Third Department granted a petition by suspended attorney Zhe Sang to be reinstated to the practice of law. The court reviewed Sang's affidavit and the Attorney Grievance Committee's response and found by clear and convincing evidence that Sang complied with the suspension order and applicable rules, possesses the required character and fitness, and that reinstatement serves the public interest. The court ordered Sang reinstated effective immediately.

The Appellate Division, Third Department granted Wengang He's motion to be reinstated to the practice of law after a suspension imposed in May 2019. Reviewing filings and correspondence, the court found by clear and convincing evidence that He satisfied the reinstatement requirements in the court rules, complied with the suspension order, demonstrated the character and fitness needed to practice, and that reinstatement served the public interest. The court ordered that He be reinstated effective immediately.

The Appellate Division, Third Department, granted Anson Carlton Asaka's motion for reinstatement to the practice of law after his May 2019 suspension. The court reviewed affidavits and correspondence, found by clear and convincing evidence that Asaka satisfied the governing reinstatement rule, complied with the suspension order and court rules, possesses the necessary character and fitness, and that reinstatement served the public interest. The court ordered that Asaka be reinstated effective immediately.

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.

The Appellate Division, Third Department affirmed the Supreme Court's December 12, 2024 order dismissing the amended complaint against the Unified Court System (UCS). Plaintiffs — four individuals and Disability Rights New York (DRNY) — challenged SCPA article 17-a and UCS's role, alleging ADA and Rehabilitation Act violations and other claims. The court held DRNY lacked organizational standing because it did not show an injury-in-fact from its advocacy expenditures, and that the individual plaintiffs' ADA and Rehabilitation Act claims were time-barred under New York's three-year personal-injury statute, with accrual at the dates they were placed under guardianship. The court rejected continuing-violation and unpreserved equitable-tolling arguments.

The Appellate Division dismissed plaintiff David Gennett's appeal challenging Supreme Court's refusal to fix his second attorney Ronald Benjamin's charging lien before the case concluded. The case had settled while the appeal was pending, making the request for an immediate fee determination moot. The appellate court also held that whether the second attorney's compensation should be measured by quantum meruit instead of the contingency agreement is not yet ripe because Supreme Court has not resolved the fee allocation and has placed a portion of settlement funds in escrow pending that determination. The appeal was dismissed without costs.

The Appellate Division, Third Department affirmed a Supreme Court judgment awarding Ellis Hospital $5,048.55 plus costs for unpaid medical bills after a summary judgment motion. The hospital showed it provided services, produced an itemized bill showing the outstanding deductible, and submitted a services agreement signed by the patient’s husband acknowledging financial responsibility. The court found the patient failed to raise a triable issue of fact — her claims about not receiving bills, lack of authorization, and challenge to the contract were not supported by evidence — so summary judgment was properly granted.

The Appellate Division, Third Department, reversed Supreme Court's grant of summary judgment for Bassett Healthcare Network in a wrongful-death action by Harvey Brody, administrator of Barbara Brody's estate. The court held that issues of fact exist both on a common-law negligence claim that the facility failed to monitor its parking lot and on medical malpractice claims against the nurse practitioner who evaluated the decedent. The court found defendant met its initial burdens but that plaintiff submitted admissible evidence (job description, photos, and an expert affidavit) creating triable issues about assumed duty and whether the NP departed from the applicable standard of care.

The Court of Appeals reversed the Appellate Division and granted the defendant's motion to suppress a statement obtained after his arrest. The People relied on an NYPD "probable cause I-card" and the fellow officer rule to justify the arrest, but presented no testimony from the arresting officers and did not show the I-card's contents or that the arresting officers actually received or relied on it. Because the prosecution failed to prove that the officers who arrested the defendant had been communicated probable cause, the court held the arrest unlawful and suppressed the statement as its fruit, remitting the case for further proceedings.

The Court of Appeals affirmed the Appellate Division's decision and ordered judgment dismissing the plaintiff's complaint with costs. The plaintiff, Mega Beverage Redemption Center, appealed from a lower-court ruling but failed to show that its appeal to the Appellate Division did not raise questions of fact or that the Appellate Division made the specific CPLR 5615 findings required when factual questions exist. Because those statutory prerequisites were absent, the Court concluded it was bound to affirm and enter judgment absolute dismissing the complaint.

The Court of Appeals ordered the immediate suspension with pay of Hon. Walter W. Jones from his Canandaigua Town Court judgeship while it reviews a determination by the State Commission on Judicial Conduct. The suspension was issued on the Court's own motion under the New York Constitution and Judiciary Law pending the appellate review. A majority of the Court concurred in the order; one judge did not participate. The suspension is administrative and temporary, preserving pay during the review process.