Court Filings

The Appellate Division, Second Department affirmed a County Court order designating Daniel Morrison a level three sex offender under New York's Sex Offender Registration Act (SORA). Morrison, convicted after jury trial of first‑degree sexual abuse and two counts of second‑degree murder, argued for a lower risk level based on mitigating factors. The court held the argument was unpreserved because he did not request a downward departure at the SORA hearing, and in any event he failed to meet the legal standard for a downward departure from the presumptive level three classification.

The Appellate Division, Second Department affirmed the County Court conviction and sentence of Daryl K. Miller for attempted sexual abuse in the first degree after Miller pleaded guilty. The court found Miller knowingly, voluntarily, and intelligently waived his right to appeal, and that valid waiver bars review of his claim that the sentence was excessive. Because the appeal waiver was valid, the appellate panel declined to review the sentencing challenge and affirmed the judgment of conviction and sentence imposed by the County Court.

The Appellate Division, Second Department, affirmed the sentence imposed on Mario Lazu after his guilty plea. The defendant appealed only on the ground that the sentence was excessive, but the court concluded he had knowingly, voluntarily, and intelligently waived his right to appeal. Because the appeal waiver was valid, the court found it could not consider the challenge to the sentence and therefore affirmed the lower court's June 27, 2023 sentence.

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 affirmed defendant Clyde Johnson’s convictions for three counts of forcible touching and one count of third-degree sexual abuse after a jury trial. The court found the defendant's challenge to the legal sufficiency of the evidence unpreserved but, in any event, held the evidence sufficient and the verdict not against the weight of the evidence. Claims of ineffective assistance of counsel and prosecutorial misconduct were rejected. The court also concluded the time period alleged in the forcible touching counts gave the defendant fair notice to prepare a defense.

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, 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, 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 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 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 reversed a Supreme Court foreclosure judgment because the bank never obtained personal jurisdiction over the homeowner. Nationstar served the summons and complaint by leaving them with the homeowner's former attorney, who lacked authority to accept service. The court held the homeowner timely preserved the jurisdiction defense and that service on a former lawyer does not satisfy statutory service rules. Because service was defective, the foreclosure judgment, referee confirmation, and sale direction were vacated and the complaint dismissed for lack of personal jurisdiction.

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, Second Department, reversed a Supreme Court order that had allowed Con-Kel Landscaping to reargue and then obtain summary judgment dismissing the plaintiff's personal injury claims. The plaintiff slipped on ice in an underground garage and sued Con-Kel, the snow-removal contractor. The appellate court held Con-Kel improperly raised for the first time on a reargument motion the argument that the plaintiff would be precluded from testifying (and thus could not make a case). Because reargument cannot present new legal theories or facts not previously offered, the reargument should have been denied and the grant of summary judgment vacated. Costs were awarded to the plaintiff.

The Appellate Division, Second Department reversed a Supreme Court judgment that had denied a CPLR article 78 petition by the Westchester Plaza Tenants Coalition challenging DHCR determinations that upheld a Rent Administrator's decision permitting an owner to modify pool and related facilities. The court found the DHCR's conclusion that the pool was not an essential service was arbitrary and capricious because the record showed the landlord maintained the pool on May 29, 1974, and charging fees for club membership alone did not remove the facility from the regulatory definition of essential services. The matter is remitted to DHCR for a new determination consistent with the opinion.

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, Second Department dismissed a CPLR article 78 proceeding brought by Simon Kinsella challenging a March 18, 2021 Public Service Commission determination that granted South Fork Wind, LLC a certificate for an offshore submarine export cable. The court granted motions by the Commission, Department of Public Service, and South Fork Wind to dismiss because the petitioner failed to timely join South Fork as a necessary party within the 30-day limitations period following the Commission’s final order. Because the defect was jurisdictional under the governing statute and precedent, the court dismissed the proceeding without costs.

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 dismissed an appeal from a Family Court order that granted the respondent's unopposed motion to dismiss a Family Court Act article 8 petition for lack of subject matter jurisdiction. The Family Court concluded the parties did not have an intimate relationship under Family Court Act § 812(1)(e). Because the dismissal order was entered after the petitioner defaulted and CPLR 5511 bars appeals entered on a default, the Second Department held the petitioner must first move to vacate the default before seeking review, so the appeal was dismissed with costs.

The Appellate Division reversed part of a Supreme Court judgment in a proceeding to confirm a master arbitration award where Integrated Specialty ASC, LLC sought no-fault benefits and attorneys' fees. The court held the trial court erred by awarding only $1,000 under the no-fault fee regulation and by failing to award additional fees for the CPLR article 75 confirmation proceeding. The appellate court awarded the regulatory maximum fee of $1,360 and remanded for the trial court to determine the amount of additional attorneys' fees under 11 NYCRR 65-4.10(j)(4) and then enter an amended judgment.

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.