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VIDEOTAPED INTERVIEWS OF RESPONDENT FATHER’S CHILDREN LED TO CRIMINAL SEXUAL ABUSE CHARGES AGAINST FATHER WHICH WERE DISMISSED BECAUSE OF A LACK OF WITNESS COOPERATION; THE VIDEOTAPED INTERVIEWS ARE NOT SUBJECT TO THE SEALING REQUIREMENT IN THE CRIMINAL PROCEDURE LAW AND CAN BE USED IN A FAMILY COURT PROCEEDING ALLEGING SEXUAL ABUSE BY FATHER (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gonzalez, determined that videotaped interviews respondent father’s children by the Manhattan Child Advocacy Center (CAC) are not subject to sealing under Criminal Procedure Law (CPL)  160.50 and therefore can be presented in a Family Court proceeding brought by the Administration for Children’s Services (ACS) alleging sexual abuse by father. The related criminal charges against father had been dismissed because of a lack of witness cooperation:

The argument advanced by ACS and the attorney for the children, which analogizes the CAC videos to 911 recordings, is persuasive. This Court has held that 911 calls are not official records within the meaning of CPL 160.50, as the 911 system serves a broader purpose than solely relating to criminal arrests and prosecutions … . Similar to a 911 call, which is handled by the NYPD and may or may not lead to a police response and criminal proceeding, a forensic interview at CAC is an initial information-gathering process, not inherently tied to any arrest or prosecution that may follow.

The recorded interviews of the children, in which they gave their own accounts of the father’s actions to an independent forensic interviewer, did not contain any information about the father’s arrest or discontinued prosecution. Sealing the videotaped interviews would undermine the CAC and multidisciplinary model. Although we recognize that there is a delicate balance between the compelling need to protect the welfare of children and the right of criminal defendants to be free from the stigma of an unsustained prosecution, CPL 160.50 should not be used to override the truth-finding and child-protective missions of the Family Court. Leah W. v Keith W., 2025 NY Slip Op 05041 First Dept 9-23-25

Practice Point: Videotaped interviews of father’s children by CAC led to criminal sex abuse charges against father which were dismissed. The videotaped interviews are not “official records and papers” subject to the sealing requirements in CPL 160.50 and therefore are available for use in related Family Court proceedings against father.

 

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THE “EXTRAORDINARY CIRCUMSTANCES” WHICH WOULD JUSTIFY RETAINING THE 17-YEAR-OLD’S BURGLARY PROSECUTION IN COUNTY COURT WERE NOT DEMONSTRATED; THE CASE SHOULD HAVE BEEN TRANSFERRED TO FAMILY COURT; THE CRITERIA FOR RETENTION IN COUNTY COURT ARE EXPLAINED IN DEPTH (THIRD DEPT).

The Third Department, reversing County Court, in a full-fledged opinion by Justice Powers, determined the People did not demonstrate “extraordinary circumstances’ justifying retaining the 17-year-old defendant’s burglary case in County Court. The matter should have been transferred to Family Court:

… [W]e agree with the Second Department’s conclusion that the Legislature intended for adolescent offenders to be prosecuted in criminal court “only in the most exceptional cases” … . * * *

As alleged in the criminal complaint, defendant and the brother stood accused of entering the dwelling of the relative and stealing unsecured firearms, which they then sold. Markedly, the relative was not home at the time and they did not forcibly enter the home. Rather, defendant’s brother — who was a willing and able participant — utilized the garage door code he had been entrusted with and they entered the home together, without causing damage to or destruction of property. Defendant also did not go on to use the firearms in the commission of some other crime nor were the firearms used by another in the commission of a crime. Instead, the firearms were sold, and then located by law enforcement not long after the sales.

These facts do not present one of the “extremely rare and exceptional cases” as was contemplated by the Legislature in enacting this legislation. In view of the foregoing, the People failed to demonstrate extraordinary circumstances existed as required to retain the matter in County Court (Youth Part) under CPL 722.23 (1) (d) … . People v Aaron VV., 2025 NY Slip Op 05018, Third Dept 9-18-25

Practice Point: Consult this decision for an in-depth discussion of the criteria for retaining a 17-year-old’s prosecution in County Court, as opposed to transferring the case to Family Court.

 

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THE DEFENDANT HOSPITAL, CREMATORY AND FUNERAL CHAPEL RELIED IN GOOD FAITH ON THE INFORMATION AND DOCUMENTS PROVIDED BY DECEDENT’S DOMESTIC PARTNER; PLAINTIFFS, DECEDENT’S ADULT CHILDREN, RAISED NO OBJECTION TO THE ARRANGEMENTS MADE BY THE DOMESTIC PARTNER UNTIL A MONTH AFTER DEATH; THE “INFRINGEMENT OF RIGHTS OF SEPULCHER” ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this “infringement of rights of sepulcher” proceeding should have been granted. The defendant hospital, crematory (Greenwood) and funeral chapel (Ackerman) relied in good faith on information provided by the decedent’s “alleged domestic partner,” Ms. Taddeo. Plaintiffs, the adult children of the decedent, had been informed of decedent’s death but did not communicate with defendants until a month later, after the cremation:

“No cemetery organization, business operating a crematory, natural organic reduction facility, or columbarium, funeral director, undertaker, embalmer or funeral firm shall be held liable for actions taken reasonably and in good faith to carry out the directions of a person who represents that he or she is entitled to control of the disposition of remains, provided that such action is taken only after requesting and receiving written statement that such person . . . is the designated agent of the decedent designated in a will or written instrument executed pursuant to this section (Public Health Law § 4201[7], [a]).”

Furthermore, Ackerman and Greenwood were entitled to rely on cremation authorizations complying with section 4201(7) … . Ms. Taddeo, identifying herself as the decedent’s next of kin, provided a valid cremation authorization to both Ackerman and Greenwood instructing that his remains be cremated.

Neither Ackerman nor Greenwood had reason to question Ms. Taddeo’s status as the decedent’s domestic partner. Under Public Health Law § 4201(7), there is no affirmative duty to investigate absent “incomplete or suspicious documents or other information that would cast doubt upon an individual’s authority to control a decedent’s remains” … . There were no such red flags here. Ms. Taddeo represented herself to defendants as the decedent’s domestic partner, readily provided the decedent’s personal information, including his social security number, his date of birth, and his parents’ names, and there were no objections made by plaintiffs to Ms. Taddeo’s authority at the time of the decedent’s death. Felton v St. Joseph Hosp., 2025 NY Slip Op 05014, First Dept 9-18-25

Practice Point: Consult this decision for a rare discussion of the “rights of sepulcher.”​

 

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RENEW THE MOTION TO DISMISS THE INDICTMENT WHEN ADDITIONAL GRAND JURY TESTIMONY WAS RELEASED TO THE DEFENSE BECAUSE THE JUDGE HAD REVIEWED THE ENTIRE GRAND JURY MINUTES BEFORE DENYING THE MOTION; TWO-JUSTICE DISSENT ARGUED THE MOTION COURT WOULD HAVE BENEFITTED FROM ANOTHER ARGUMENT BASED ON THE NEWLY RELEASED EVIDENCE (FIRST DEPT).

The First Department, affirming defendant’s conviction over a two-justice dissent, determined defense counsel was not ineffective for failing to renew the defense motion to dismiss the indictment after additional grand jury testimony was released. The majority concluded there was no new evidence to support a motion to renew because the judge reviewed all the grand jury testimony before denying the motion to dismiss. The dissenters argued there was insufficient evidence defendant shared the intent of the shooter and the motion court would have benefitted from another argument where defense counsel raised the newly released grand jury evidence:

“There can be no denial of effective assistance of counsel arising from counsel’s failure to make a motion or argument that has little or no chance of success” … . Defendant cannot demonstrate that a motion to renew would have had any likelihood of success because defendant had previously moved to dismiss the indictment and the court had denied the motion after conducting an in camera review of the grand jury minutes, which included the witness’s grand jury testimony that was subsequently provided to defendant’s counsel. Thus, the court had already determined that the evidence presented before the grand jury, including the witness’s testimony, established a legally sufficient prima facie case.

Moreover, a motion for renewal “must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made available to the court” … . Although the grand jury minutes were not available to defendant’s counsel at the time the motion to dismiss was filed, the court conducted a review of the complete grand jury minutes and then denied dismissal of the indictment. Consequently, there were no additional material facts upon which defendant’s counsel could have based a motion to renew, as the witness’s grand jury testimony was already known to the court in its entirety. Therefore, defendant’s counsel’s failure to file such a motion was insufficient to render his performance ineffective under both the state and federal standards … . People v Williams, 2025 NY Slip Op 05016, First Dept 9-18-25

Practice Point: Here the majority determined a motion to renew the motion to dismiss the indictment based on grand jury testimony released after the motion argument had little chance of success because the judge had reviewed all the grand jury evidence before denying the motion. The dissenters argued the judge would have benefitted from a second argument based on the newly released testimony, and therefore defense counsel was ineffective for failing move to renew.

 

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THE 2022 AMENDMENT TO DOMESTIC RELATIONS LAW 111 REQUIRING CONSENT TO ADOPTION BY A NONMARITAL FATHER WHO HAS ACKNOWLEDGED PATERNITY APPLIES RETROATIVELY; TERMINATION OF PARENTAL RIGHTS REVERSED (FIRST DEPT).​

The First Department, in a full-fledged opinion by Justice O’Neill Levy, reversing Family Court, vacating the termination of respondent father’s parental rights, determined the 2022 amendment of Domestic Relations Law section 111 requiring consent for adoption by a nonmarital parent who has acknowledged paternity applied retroactively to this proceeding:

Domestic Relations Law § 111 was amended, effective December 30, 2022. Pursuant to section 111(1)(e)(iv), and subject to certain criteria, it now requires consent for adoption by any nonmarital parent who has executed an unrevoked acknowledgement of parentage or filed an unrevoked notice of intent to claim parentage of a child. The amendment did away with the necessity for some parents with children in foster care to establish that in addition to having visited or regularly communicated with the child that they made payments to the foster care agency caring for the child. The legislature acknowledged that this requirement resulted in noncompliant or unknowing parents permanently losing their parental rights by being relegated to receiving only notice of the termination proceedings …. This amendment went into effect three years after Family Court’s July 2019 determination that respondent father was solely entitled to notice that the agency was seeking to terminate parental rights to free the child for adoption but before the May 2023 dispositional order was issued. * * *

Generally, a statute “will not be given retroactive construction unless an intention to make it so can be deduced from its wording” … . A legislative directive that a law shall “take effect immediately,” coupled with the remedial nature of the amendment, indicates a “‘sense of urgency'” that should be effectuated through retroactive application … . The purpose of remedial statutes is to correct imperfections in prior law by giving relief to an aggrieved party … , to the extent that they do not impair vested rights or bestow additional rights … . As the express purpose of the amendment at issue was to correct how the law applied to nonmarital parents and was “effective immediately,” we find that it should be given retroactive effect. Matter of C.C. v D.C., 2025 NY Slip Op 05017, First Dept 9-18-25

Practice Point: Consult this decision for a concise analysis of the criteria for retroactive application of a statutory amendment.

 

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PLAINTIFF DEMONSTRATED THAT TRADITIONAL SERVICE OF PROCESS WAS “IMPRACTICABLE;” SERVICE BY PUBLICATION SHOULD HAVE BEEN ALLOWED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff should have been allowed to serve defendants by publication. The process server made several attempts to serve Noren and Eng at addresses where they didn’t reside and attempted to learn their addresses through records searches:

The Supreme Court erred in denying, as academic, that branch of the plaintiff’s unopposed motion which was for leave to effect service on Noren and Eng by publication pursuant to CPLR 316. A court may permit service by publication, upon motion without notice, if traditional service is “impracticable” (CPLR 308[5]; see 316). “The impracticability standard does not require the applicant to satisfy the more stringent standard of due diligence under CPLR 308(4) nor make an actual showing that service has been attempted pursuant to CPLR 308(1), (2), and (4)” … . “Whether service is impracticable depends on the facts and circumstances surrounding each case” … .

Here, the Supreme Court should have permitted the plaintiff to serve Noren and Eng by publication, as the plaintiff demonstrated that it was impracticable to serve them by traditional means … . U.S. Bank Trust, N.A. v Public Admr. of Suffolk County, 2025 NY Slip Op 05009, Second Dept 9-17-25

Practice Point: Consult this decision for insight into the criteria for demonstrating traditional service of process is “impracticable” such that service by publication is appropriate.

 

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IN THIS SLIP AND FALL CASE, THE DEFECT IN THE STAIRWAY WAS TRIVIAL AS A MATTER OF LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defect in the stairway alleged to have caused plaintiff’s slip and fall was trivial as a matter of law:

,,, ” [A] property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip” … . “‘A defendant seeking dismissal of a complaint on the basis that [an] alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact'” … . “In determining whether a defect is trivial, the court must examine all of the facts presented, including the ‘width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury'” … . “There is no ‘minimal dimension test’ or ‘per se rule’ that the condition must be of a certain height or depth in order to be actionable … . “‘Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable'” … .

Here, the photographs of the allegedly dangerous condition, which included measurements taken by the plaintiff’s investigator, revealed that the condition on which the plaintiff allegedly fell was depressed approximately 3/16 of an inch at the edge of the stair on which she fell. Moreover, the plaintiff testified that she had previously traversed the stairway without incident, was aware of the condition of the steps, and was looking down at the stairs as she carried a queen-size comforter when she fell. Under these circumstances, the defendants established, prima facie, that any defect that existed was trivial as a matter of law … . Rene v Livingston Gardens, Inc., 2025 NY Slip Op 05004, Second Dept 9-17-25

Practice Point: Consult this slip and fall decision for an example of a defect in a stairway deemed trivial as a matter of law.

 

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THE COMMISSIONER’S FAILURE TO REVIEW THE HEARING OFFICER’S DETAILED DECISION BEFORE TERMINATING THE PETITIONER’S EMPLOYMENT RENDERED THE COMMISSIONER’S DETERMINATION “UNAVOIDABLY ARBITRARY” (THIRD DEPT). ​

The Third Department, reversing Supreme Court in this Article 78 proceeding, determined the respondent Panunzio, Commissioner of the City of Albany’s Department of General Services, did not review the hearing officer’s detailed decision before terminating petitioner’s employment with the city. Therefore the Commissioner’s determination was “arbitrary” and the Article 78 petition should not have been dismissed:

… [F]ollowing a disciplinary hearing held pursuant to Civil Service Law § 75 (2), a hearing officer “shall make a record of such hearing which shall, with his [or her] recommendations, be referred to such officer or body [having the power to remove the employee] for review and decision” … . The resulting administrative]determinations are entitled to a presumption of regularity … and, “in the absence of a clear revelation that the administrative body made no independent appraisal and reached no independent conclusion, its decision will not be disturbed” … . …

Panunzio did not … review the Hearing Officer’s detailed and thorough decision, as such was read into the record at the hearing and the hearing transcript was not received until after the determination terminating petitioner had already been issued. As Panunzio was unable to review the Hearing Officer’s complete report and findings, respondents had “no basis upon which to act” and their determination was thus “unavoidably . . . arbitrary” … . To be sure, a reviewing officer need not review all evidence presented before the hearing officer or defer to his or her findings … . Nevertheless, to permit respondents to issue a determination without even having the availability of the Hearing Officer’s complete report and findings would render the requirements of Civil Service Law § 75 (2) meaningless … . Matter of Alexander v City of Albany, 2025 NY Slip Op 04949, Third Dept 9-11-25

Practice Point: Hear the Commissioner terminated petitioner’s employment without first reading the detailed decision by the hearing officer, which the Commissioner is required to do by statute. The Commissioner’s determination was thereby rendered “arbitrary.” Petitioner’s Article 78 petition should not have been dismissed.

 

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SUPREME COURT PROPERLY CERTIFIED PLAINTIFFS AS A CLASS BASED ON THE FIVE MANDATORY FACTORS IN CPLR SECTIONS 901 AND 902; THE CLASS DEFINITION DID NOT CONSTITUTE AN IMPERMISSIBLE “FAIL SAFE” CLASS UNDER THE FEDERAL RULES OF CIVIL PROCEDURE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mendez, determined Supreme Court properly certified plaintiffs as a class in this wage dispute. Plaintiffs, who acted as “flaggers” at defendants’ construction sites, argued they were wrongly classified as “crossing guards” or “traffic control” and paid at a rate lower than the prevailing wage. The opinion rejected the argument that the class definition constituted an impermissible “fail safe” class under the Federal Rules of Civil Procedure:

CPLR 901(a) sets forth five factors required to obtain class certification, which are commonly referred to as, “numerosity, commonality, typicality, adequacy of representation and superiority” … . A class action can be maintained pursuant to CPLR 902 only if the five prerequisite factors stated in CPLR 901(a) are met … . * * *

Defendants assert that the class definition constitutes an impermissible “fail safe” class under the Federal Rules of Civil Procedure (FRCP), Rule 23(b). A “fail safe” class exists “when the class itself is defined in a way that precludes membership unless the liability of the defendant is established” … . A “fail safe” class is impermissible because it prevents an adverse judgment being entered against plaintiffs … . Defendants argue that the sole issue in the case is whether or not a particular member was in fact acting as a “flagger” and thus that class membership and liability are inextricably intertwined. …

Supreme Court’s decision amended the definition of the class to avoid an impermissible “fail safe” class under FRCP 23 (b), by excluding reference to “whether public works contracts required the payment of prevailing wages on subject projects” as applying to the ultimate issue of liability. Supreme Court amended the definition of the class to state, “All persons employed by Out-Look Safety LLC at any time since April 16, 2018 through January 28, 2024, who worked as non-union construction flaggers on Restani, Safeway, Triumph, and/or Hawkeye projects requiring the payment of prevailing wages in New York City.” McMillian v Out-Look Safety LLC, 2025 NY Slip Op 04963, First Dept 9-11-25

Practice Point: Consult this opinion for insight into the proof required to meet the five factors for class certification under CPLR 901 and 902, as well the nature of an impermissible “fail safe” class definition. “A ‘fail safe’ class exists ‘when the class itself is defined in a way that precludes membership unless the liability of the defendant is established’ …”.

 

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THE POLICE OFFICER’S WITNESSING THE EXCHANGE OF AN UNIDENTIFIED OBJECT PROVIDED PROBABLE CAUSE FOR A DRUG TRANSACTION ARREST; BECAUSE THE RECORD EVIDENCE SUPPORTED THE DENIAL OF SUPPRESSION, THE MIXED QUESTION OF LAW AND FACT WAS BEYOND FURTHER REVIEW BY THE COURT OF APPEALS (CT APP).

The Court of Appeals, affirming Supreme Court’s denial of the suppression motion, determined there was sufficient evidence in the record to support the motion court’s ruling. Therefore the mixed question of law and fact could not be reviewed further by the Court of Appeals. The issue was whether witnessing the exchange of an unidentified object provided probable cause to arrest for a drug transaction:​

The “factors relevant to assessing probable cause include the exchange of currency; whether the particular community has a high incidence of drug trafficking; the police officer’s experience and training in drug investigations; and any additional evidence of furtive . . . behavior on the part of the participants” … . Contrary to defendant’s contention, the absence of a “telltale sign” of a drug transaction is not fatal to a finding of probable cause. As we have explained, “a ‘telltale sign’ of narcotics strongly suggests an illicit drug transaction,” but it is not “an indispensable prerequisite to probable cause” … . Probable cause may also “be found on the basis of ‘indicia of a drug transaction’ known to ‘an experienced officer trained in the investigation and detection of narcotics,’ which include ‘handling an unidentified object in a manner typical of a drug sale'” … .

The testifying officer had formal training and experience in observing narcotics transactions, and he and his partners were stationed in an area known for drug-related activity. … [I]n the six months prior to defendant’s arrest, the testifying officer had made about ten narcotics-related arrests within two blocks of the motel. The officers also saw defendant “engage in [ ] behavior consistent with that of a narcotics seller” … , including nervous glancing, reaching into his waistband without looking down, and two separate interactions with the same woman, each involving an exchange of an object. Although the officers did not identify the object the woman acquired during the second interaction until after defendant’s arrest, the woman’s clenched fist and rapid departure indicated her desire to conceal it. People v Tapia, 2025 NY Slip Op 04940, CtApp 9-11-25

Practice Point: Where an appeal presents a mixed question of law and fact (here, whether there was probable cause for a drug transaction arrest based on the witnessed exchange of an unidentified object), the review by the Court of Appeals il limited to whether the motion court’s ruling has support in the record.​

 

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