You are here: / Child’s Out-of Court Statements Sufficiently Corroborated

Search Results

/ ,

Child’s Out-of Court Statements Sufficiently Corroborated

In affirming Family Court, the Second Department determined the child’s out-of-court statements were sufficiently corroborated:

At a fact-finding hearing in a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of establishing, by a preponderance of the evidence, that the subject child has been abused or neglected (see Family Ct Act § 1046[b][i]). A child’s out-of-court statements may form the basis for a finding of abuse or neglect if they are sufficiently corroborated by other evidence tending to support their reliability…. The Family Court has considerable discretion in deciding whether a child’s out-of-court statements describing incidents of abuse or neglect have been reliably corroborated ….  Contrary to the appellant’s contention, the Family Court’s determination that he sexually abused the subject child is supported by a preponderance of the evidence. The subject child’s out-of-court statement regarding the acts of sexual abuse upon her was corroborated by an expert in clinical and forensic psychology, with a specialization in child abuse, who evaluated the subject child and concluded that she exhibited behavior indicative of sexual abuse… .  Matter of Emani W, 2013 NY Slip Op 04346, 2nd Dept, 6-12-13

 

/ , ,

Doctrine of Collateral Estoppel Re: Related Criminal Convictions Properly Applied

The Second Department determined Family Court properly applied the doctrine of collateral estoppel in an abuse proceeding based upon father’s criminal convictions:

The Family Court properly granted that branch of the motion of the ACS which was for summary judgment on the issue of the father’s derivative abuse. The ACS met its prima facie burden of showing that the doctrine of collateral estoppel is applicable…. “A determination in a criminal action may be given collateral estoppel effect in a Family Court proceeding where the identical issue has been resolved, and the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct”…. The father’s convictions of course of sexual conduct against a child in the first degree, course of sexual conduct against a child in the second degree, rape in the second degree, and endangering the welfare of a child were based upon the same acts alleged to constitute sexual abuse as set forth in Family Court Act article 10 petitions (see Family Ct Act § 1012[e][iii]).  Matter of Angelica M, 2013 NY Slip Op 04339, 2nd Dept, 6-12-13

 

/

Evidence of Mother’s Mental Illness, Without More, Did Not Justify Neglect Finding

The Second Department determined mother’s mental illness alone did not support a finding of neglect:

…[T]he Administration for Children’s Services (hereinafter the ACS), adduced evidence at the fact-finding hearing which established that the mother suffered from bipolar disorder at the time each of the two subject children were born. “A finding of neglect may be predicated upon proof that a child’s physical, mental, or emotional condition is in imminent danger of becoming impaired as a result of a parent’s mental illness”…. However, “proof of mental illness alone will not support a finding of neglect”; the evidence “must establish a causal connection between the parent’s condition, and actual or potential harm to the children”…. Here, the ACS failed to establish, by a preponderance of the evidence, the existence of a causal connection between the mother’s bipolar disorder and actual or potential harm to the subject children … .   Matter of Alexis SG…, 2013 NY Slip Op 04336, 2nd Dept, 6-12-13

 

/ ,

Criteria for Fraudulent Inducement and Attachment

In a full-fledged opinion by Justice Feinman, the First Department outlined the criteria for fraudulent inducement where the parties are “sophisticated entities,” as well as the strict criteria for attachment:

The elements of fraud are a misrepresentation or a material omission of fact which was known to be false by the defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or omission, and injury …. In this case, the buyers have not sufficiently alleged justifiable reliance. “[R]eliance must be found to be justifiable under all the circumstances before a complaint can be found to state a cause of action in fraud”…. What constitutes reasonable reliance is “always nettlesome” because it is so fact-intensive…. Sophisticated investors must show they used due diligence and took affirmative steps to protect themselves from misrepresentations by employing what means of verification were available at the time … . * * *

We conclude that, on the extant record which consists of competing affidavits, the grant of an attachment and its confirmation was an abuse of discretion. “[T]he mere fact that defendant is a non-domiciliary residing without the State of New York is not sufficient ground for granting an attachment”…. The sellers have shown no evidence that the buyers lack sufficient assets, or that they will choose to hide or otherwise dispose of their assets. We note that no hearing was held at which the credibility of the buyers’ averments regarding their financial status and resources could be evaluated. At most, the sellers’ affidavits establish that there is potentially a significant amount of bureaucracy involved in obtaining the assets as converted funds. This is not, in itself, sufficient to order an attachment. The orders of the motion court granting and confirming the orders of attachment, and granting discovery to aid in attachment, as well as the order that the buyers transfer assets into New York State, should therefore be reversed.  VisionChina Media Inc v Shareholder Representative Servs, LLC, 2013 NY Slip Op 04298, 1st Dept, 6-11-13

 

/ , ,

Supreme Court’s Grant of Defendants’ Motion to Set Aside Verdict Reversed

The First Department, over a substantial dissent, reversed Supreme Court’s grant of defendants’ motion to set aside the verdict in a medical malpractice action:

“The question of whether a verdict is against the weight of the evidence is discretion-laden, and the critical inquiry is whether the verdict rested on a fair interpretation of the evidence”…. On this record, we conclude that the Supreme Court erred in setting aside the verdict as against the weight of the evidence, because it cannot be said that the jury could not have reached its verdict upon any fair interpretation of the evidence…. The jury was entitled to resolve in plaintiff’s favor the conflict between the decedent’s and Dr. Conte’s testimony as to the nature and timing of her complaints and whether he later made referrals for CT scans that she declined.  Rose v Conte, 2013 NY Slip Op 04297, 1st Dept, 6-11-13

 

/

Breach of Duty to Defend Precludes Reliance on Policy Exclusions

In a full-fledged opinion by Judge Smith, the Court of Appeals held that “when a liability insurer has breached its duty to defend its insured, the insurer may not later rely on policy exclusions to escape its duty to indemnify the insured for a judgment against him.”  The Court wrote:

…”[A]n insurance company that has disclaimed its duty to defend “may litigate only the validity of its disclaimer.” If the disclaimer is found bad, the insurance company must indemnify its insured for the resulting judgment, even if policy exclusions would otherwise have negated the duty to indemnify. This rule will give insurers an incentive to defend the cases they are bound by law to defend, and thus to give insureds the full benefit of their bargain. It would be unfair to insureds, and would promote unnecessary and wasteful litigation, if an insurer, having wrongfully abandoned its insured’s defense, could then require the insured to litigate the effect of policy exclusions on the duty to indemnify.  K2 Investment Group, LLC v American Guarantee & Liability Insurance Company, No 106, CtApp, 6-11-13

 

/ , ,

Bear Stearns Complaint Stated a Cause of Action for Indemnification and Should Not Have Been Dismissed

In a full-fledged opinion by Judge Graffeo, the Court of Appeals reversed the Appellate Division and allowed a suit by Bear Stearns against its insurers (which had denied coverage) to go forward.  In response to a Security and Exchange Commission (SEC) investigation into late trading and market timing activities, Bear Stearns agreed to pay a 160-million-dollar disgorgement fee.  Bear Stearns then sought indemnification from the defendant insurance companies.  The complaint, which had been dismissed, alleged that 140 of the 160 million constituted profits that flowed to Bear Stearns’ customers, not funds improperly acquired by Bear Stearns. The Court of Appeals determined that it could not be discerned from the SEC order alone whether or not the funds were deemed improperly acquired by Bear Stearns.  Therefore the complaint stated a cause of action:

In the context of these dismissal motions, we must assume Bear Stearns’ allegations to be true unless conclusively refuted by the relevant documentary evidence, in this case, the SEC order. Contrary to the Insurers’ position, the SEC order does not establish that the $160 million disgorgement payment was predicated on moneys that Bear Stearns itself improperly earned as a result of its securities violations. Rather, the SEC order recites that Bear Stearns’ misconduct enabled its “customers to generate hundreds of millions of dollars in profits.” Hence, at this CPLR 3211 stage, the documentary evidence does not decisively repudiate Bear Stearns’ allegation that the SEC disgorgement payment amount was calculated in large measure on the profits of others.  JP Morgan Securities, Inc v Vigilant Insurance Company, No 113, CtApp 6-11-13

 

/ ,

Proper Procedures for Handling Pro Se Motions to Withdraw Guilty Pleas (Alleging Coercion by Defense Counsel) Explained

The Court of Appeals considered two cases in which, after pleading guilty, the defendant made a pro se motion to withdraw the plea, claiming coercion and undue pressure by defense counsel. In both cases the sentencing judge asked for the defense attorney’s position on the pro se motion, which forced both attorneys to take a position adverse to the client’s, which, in turn, required the assignment of new counsel.  The Court explained how the situation should be handled:

…[W]hen a motion to withdraw a plea is patently insufficient on its face, a court may simply deny the motion without making any inquiry. When certain actions or inaction on the part of defense counsel are challenged on the motion, it may very well be necessary for defense counsel to address the matter when asked to by the court. When doing so, defense counsel should be afforded the opportunity to explain his performance with respect to the plea …, but may not take a position on the motion that is adverse to the defendant …. At that point, a conflict of interest arises, and the court must assign a new attorney to represent the defendant on the motion. People v  Mitchell …, Nos 116, 117, CtApp, 6-11-13

 

/ , ,

Beating of Child Combined with Two-Hour Delay in Seeking Help Constituted Depraved Indifference

The Court of Appeals, in a full-fledged opinion by Judge Pigott which addressed both the proof requirements for depraved indifference murder and ineffective assistance of counsel, determined that the brutal beating of a 15-month-old baby combined with the failure to summon assistance for 2 hours met the criteria for depraved indifference to human life.  The Court found that the facts proved a brutal course of conduct over a prolonged or extended period of time.  In explaining the operative principles, Judge Pigott wrote:

This appeal is governed by the requirement that, in proving the existence of “circumstances evincing a depraved indifference to human life,” the People must show that, at the time the crime occurred, defendant had a mens rea of “utter disregard for the value of human life” …. Put simply, the People must prove that defendant did not care whether his victim lived or died … . Additionally, the People must prove a second mens rea, namely recklessness. * * *

A brutal course of conduct against a vulnerable victim occurring over a prolonged or extended period of time is more likely to be associated with the mental state of depraved indifference to human life than brutality that is short in duration and is not repeated. This is because the actor had the opportunity to regret his actions and display caring, but failed to take the opportunity. In the present case, defendant argues that his course of conduct against the child was not prolonged. But defendant’s argument focuses exclusively on the duration of his physical assault on the child, which may have been brief. However, this argument ignores the evidence that, by his later inaction “ his failure, over some two hours, to seek medical attention for the child “ defendant turned a brutal assault into a brutal and prolonged course of conduct against a vulnerable victim.  People v Barboni, 102, CtApp, 6-11-13

 

/ ,

Conviction for Selling T-Shirts without a Vendor’s License Upheld—Constitutional Expression vs. Commercial Enterprise

The defendant was convicted of “unlicensed general vending” for selling t-shirts in New York City without a vendor’s license. In his defense the defendant argued that the vending of t-shirts with artistic images on them was constitutionally protected expression. The Court of Appeals affirmed the conviction and the determination below that the purpose of the sale was primarily utilitarian as opposed to expressive.  Judge Smith dissented because the t-shirts had been destroyed and the Court could not determine their expressive nature.  In describing the appropriate analysis as explained in a Second Circuit case, the Court of Appeals wrote:

…[T]he Second Circuit found that the relevant inquiry is whether the vendor is “genuinely and primarily engaged in artistic self-expression or whether the sale of such goods is instead a chiefly commercial exercise” … . The Court recognized that certain items, including apparel, could simultaneously contain potentially expressive and non-expressive components and, in that situation, a reviewing court must determine which purpose — expression or utility — is dominant… .  People v Lam, 95, CtApp, 6-11-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy