You are here: / THE NEGLECT FINDING WAS NOT SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE,...

Search Results

/ ,

THE NEGLECT FINDING WAS NOT SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE, CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Family Court’s neglect finding, determined the finding was not supported by the preponderance of the evidence:

“[A] party seeking to establish neglect must show, by a preponderance of the evidence … , first, that a child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship” … .. In considering whether the requisite minimum degree of care was provided, “[c]ourts must evaluate parental behavior objectively: would a reasonable and prudent parent have so acted, or failed to act, under the circumstances then and there existing” … . Here, the evidence at the fact-finding hearing establishes that the mother acknowledged her mental health issues and had been compliant with treatment following her discovery that she was pregnant … ; and that she was engaged in a supportive housing program that would allow her to care for the child, thereby limiting any extended need for foster care … . Matter of Isabella S. (Nicole S.), 2022 NY Slip Op 01897, Fourth Dept 3-18-22

Practice Point: Although the specific allegations of neglect are not described in this decision, the criteria for a neglect finding are clearly explained.

 

/ ,

THE POLICE MISTAKENLY BELIEVED THE MAN IN A MOTEL ROOM (DEFENDANT) WAS A SUSPECT IN A SHOOTING; AN INFORMANT HAD TOLD THE POLICE THE MAN IN THE ROOM WAS FROM ROCHESTER, HIS NICKNAME WAS “JAY” AND HE “HAD A WARRANT;” WHEN THE MAN LEFT THE ROOM, THE POLICE STOPPED HIS TAXI; THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE STOP (FOURTH DEPT).

The Fourth Department, reversing the denial of defendant’s suppression motion and dismissing the indictment, determined the People did not demonstrate the legality of the defective’s order to stop the taxi in which defendant was a passenger. An informant told the police a man in a motel room was from Rochester, his nickname was “Jay,” and he “had a warrant.” The detective believed the man in the motel room was a suspect in a shooting which occurred a month before. Surveillance was set up and the detective was told a man had left the room and gotten into a taxi. The defective, who did not see the man leave the room, ordered the stop of the taxi: It turned out that defendant was not the shooting suspect. He was charged with possession of a controlled substance:

At the suppression hearing, a police detective testified that he directed the stop of the taxi based on a belief that defendant was in fact a different man whom authorities had identified as a suspect in a shooting that had occurred over a month earlier. …

The detective conceded that he had never seen a still photo of the suspect, that the video of the shooting that he did view lacked detail, and that he was unaware of whether the suspect’s actual height, weight, skin tone, or other specific discernable characteristic were on the arrest warrant for the shooting suspect. Further, the informant never identified the man in the motel room as the shooter, and the vague description given, i.e., that the man was from Rochester, that his nickname was the ubiquitous “Jay,” and that he “had a warrant”, is too generalized to support the reasonable suspicion required for the officers’ stop of the taxi … . … This is also not a case in which the “proximity of the defendant to the site of the crime[ and] the brief period of time between the crime and the discovery of the defendant near the location of the crime” added to the totality of circumstances supporting the detective’s reasonable suspicion … . People v Singleton, 2022 NY Slip Op 01893, Fourth Dept 3-18-22

Practice Point: The police mistakenly thought the man in a motel room (defendant) was a shooting suspect based upon vague and general allegations made by an informant. When he left the motel room, the defendant’s taxi was stopped and he was subsequently charged with possession of a controlled substance. The People did not demonstrate the legality of the stop.

 

/ ,

THE JUDGE DID NOT FOLLOW PROPER PROCEDURE FOR IMPOSING SANCTIONS, I.E., PLAINTIFF’S COUNSEL WAS ORDERED TO PAY $10,000 IN COUNSEL FEES TO DEFENDANT’S COUNSEL (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge did not follow the procedural requirements for imposing sanctions, i.e.,  $10,000 in attorney’s fees to defendant’s counsel, to be paid by plaintiff’s counsel:

The motion court’s sua sponte award of sanctions against plaintiff’s counsel did not satisfy the procedural requirements of the Rules of the Chief Administrator of the Court (22 NYCRR) § 130-1. That section provides that a court may award costs or impose sanctions “upon the court’s own initiative, after a reasonable opportunity to be heard” … and “only upon a written decision setting forth the conduct on which the award or imposition is based, the reasons why the court found the conduct to be frivolous, and the reasons why the court found the amount awarded or imposed to be appropriate” … . DeSouza v Manhattan RX LLC, 2022 NY Slip Op 01875, First Dept 3-17-22

Practice Point: Before a judge can impose sanctions, here ordering plaintiff’s attorney to pay counsel fees in the amount of $10,000 to defendant’s attorney, the relevant rules in 22 NYCRR 130-1 must be complied with, i.e., affording an opportunity to be heard and issuing a written decision explaining the conduct, why it was found frivolous and the reasons for the amount awarded or imposed.

 

/ ,

DEFENDANT COMMODITY FUTURES BROKER IS ENTITLED TO COVERAGE UNDER FIDELITY BONDS FOR LOSSES INCURRED BY THE CRIMINAL ACTIONS OF A BROKER AMOUNTING TO $141 MILLION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Kapnick, determined defendant MF Global was entitled to coverage under fidelity bonds for losses incurred by the criminal actions of a broker, Dooley, for which Dooley was ordered to pay restitution to MF Global in the amount of $141 million:

This 2009 declaratory judgment action involves a $141 million insurance coverage dispute between plaintiffs New Hampshire Insurance Company, Liberty Mutual Insurance Company, and Axis Reinsurance Company (Insurers) and defendant, commodity futures broker MF Global Finance USA, Inc. (MF Global). New Hampshire issued the primary bond insurance policy to MF Global’s predecessor and Liberty Mutual and Axis Reinsurance each issued excess financial institution bonds, covering the same policy period and incorporating the provisions and terms of the primary bond. Defendant MF Global seeks coverage under those bonds for a trading loss incurred in February 2008 by Evan Brent Dooley, a broker for MF Global, who in 2012 pleaded guilty to exceeding speculative position limits in violation of 7 USC §§ 6a and 13(a)(5). Dooley was sentenced to five years’ imprisonment and one year of supervised release and was ordered to pay restitution of over $141 million to MF Global upon release from prison.

… [W]e hold that defendant is covered under the fidelity bonds for its loss and is entitled to summary judgment in its favor…. . New Hampshire Ins. Co. v MF Global Fin. USA Inc., 2022 NY Slip Op 01880, First Dept 3-17-22

 

/ ,

ALTHOUGH THE PERSON WHO ALLEGEDLY ASSAULTED PLAINTIFF AT JFK AIRPORT WAS AN EMPLOYEE OF AMERICAN AIRLINES, HE WAS NOT ON DUTY AT THE TIME OF THE INCIDENT; THE DEFENDANTS MOTION FOR SUMMARY JUDGMENT ON THE VICARIOUS LIABILITY AND NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this vicarious liability, negligent hiring and supervision and premises liability action should have been granted. Plaintiff was allegedly assaulted by Miles, who worked for American Airlines, at JFK airport (owned by defendant Port Authority). Plaintiff sued under respondeat superior and negligence theories. Miles testified he was not on duty at the time of the incident:

Under the doctrine of respondeat superior, an employer may be held vicariously liable for intentional torts committed by employees acting within the scope of their employment, as long as those acts were “generally foreseeable and a natural incident of the employment” … . Where the material facts are not in dispute, the question whether respondeat superior liability attaches is one of law and can be determined on a motion for summary judgment … . Here the threshold question is whether Miles was even working, or under the direction of American, at the time of the incident. … [D]efendants attached the deposition transcript of Miles, who testified that he was not working at the time of the incident. This was sufficient to at least satisfy defendants’ prima facie burden … .

Because the testimony of Miles, who, notably, is not a party to this action, was that he was not on duty when the altercation occurred, defendants shifted the burden on the issue of respondeat superior. Moreover, Miles’s testimony about his job responsibilities — escorting planes in and out, and loading and unloading luggage — established prima facie that the foreseeability element of respondeat superior liability was not present. The alleged assault bore no connection to plaintiff’s work duties, and thus was not “in furtherance of any employer-related goal whatsoever”  Summors v Port Auth. of N.Y. & N.J., 2022 NY Slip Op 01891, First Dept 3-17-22

Practice Point: An American Airlines employee allegedly assaulted plaintiff at JFK airport. The defendants demonstrated the American Airlines employee was not on duty at the time of the incident, which was deemed fatal to respondeat superior (vicarious) liability.

 

/ ,

CONFLICTING EVIDENCE ABOUT THE ABILITY TO SEE ICE ON THE PARKING LOT RAISED A TRIABLE QUESTION OF FACT WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF THE CONDITION WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined defendants in this ice slip and fall case did not eliminate questions of fact about whether they had constructive notice of the icy condition:

Supreme Court found that plaintiffs’ testimony, submitted by defendants, showed that the allegedly dangerous condition “was neither visible nor had it existed for a significant period of time,” and “plaintiffs have not submitted any evidence to prove . . . constructive notice.” Although [plaintiff] testified that the parking lot appeared wet, not icy, when viewed from her husband’s truck, she also stated that she saw the ice once she had fallen; further, the affidavit of a witness states that “[t]he ice in the parking lot that morning was clearly visible.” Thus, the record contains conflicting accounts as to the visibility of the ice. “When considering a summary judgment motion, courts must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations” … . Applying this standard, we find a triable issue of fact as to constructive notice. Carpenter v Nigro Cos., Inc., 2022 NY Slip Op 01857, Third Dept 3-17-22

Practice Point: Where there is conflicting evidence of constructive notice of a dangerous condition, here whether the ice which caused plaintiff’s slip and fall was visible, summary judgment is not appropriate.

 

/ , ,

DEFENDANT’S WAIVER OF APPEAL WAS NOT VALID; THE COURT’S TERSE INQUIRY ABOUT THE APPEAL WAIVER WAS NOT CURED BY DEFENDANT’S EXECUTION OF A MORE DETAILED WRITTEN WAIVER AFTER SHE WAS SENTENCED AND MORE THAN A YEAR AFTER THE PLEA (THIRD DEPT).

The Third Department affirmed defendant’s conviction but noted that the waiver of appeal was not valid:

The record reflects that County Court failed to explain the separate and distinct nature of the appeal waiver to defendant, and the court’s terse inquiry, wherein defendant was asked, “Do you understand that as part of this disposition, you’re agreeing to waive your right to appeal” and that “normally . . . you have the right to appeal your plea and your sentence,” was insufficient to ensure that defendant appreciated the nature and consequences of the rights that she was relinquishing … . Further, despite defendant’s execution of a more detailed written waiver, such was executed after she was sentenced and more than a year after the plea was entered … .. Under these circumstances, we find that defendant did not knowingly and intelligently waive her right to appeal … . People v Crispell, 2022 NY Slip Op 01843, Third Dept 3-17-22

Practice Point: The court did not explain the separate and distinct nature of an appeal waiver, as opposed to the waiver of the right to a trial. The inadequacy of the court’s explanation was not cured by the more detailed written waiver which was executed after defendant was sentenced and more than a year after the plea.

 

/ ,

THE CRIMINAL PROCEDURE LAW SPELLS OUT THE ONLY GROUNDS FOR APPEAL IN A CRIMINAL PROCEEDING; NO APPEAL LIES FROM THE DENIAL OF A MOTION TO CORRECT, AMEND OR SETTLE THE SENTENCING TRANSCRIPT; AND NO APPEAL LIES FROM ADDING A MANDATORY SURCHARGE, WHICH IS NOT PART OF A SENTENCE (THIRD DEPT).

The Third Department determined no appeal lies from an order denying defendant’s motion to correct, amend or settle the sentencing transcript or from an order adding the mandatory surcharge:

As a general rule, “no appeal lies from a determination made in a criminal proceeding unless one is provided by the CPL, [which] exclusively provides for rights to appeal in criminal matters” … .A defendant’s right to appeal to this Court in a criminal case is “strictly limited to those authorized by statute” … . The … order denying defendant’s motion to correct, amend or settle the sentencing transcript and the uniform sentence and commitment form and adding the mandatory surcharge does not fit within the statutory authorization for appeals by a defendant as of right to this Court (see CPL 450.10 …). Defendant’s reliance on case law involving the correction of trial records on direct appeals from judgments of conviction is misplaced, given that this appeal is not from the judgment of conviction, which was previously affirmed on appeal (303 AD2d at 830).

With regard to the mandatory surcharge, although it should be “levied at sentencing” (Penal Law § 60.35 [1] [a]), it is not part of the sentence that must be pronounced at the sentencing proceeding … . As such, that part of County Court’s order amending the uniform sentence and commitment form by adding the mandatory surcharge did not constitute the imposition of a sentence or a modification of the sentence so as to authorize defendant’s appeal therefrom (see CPL 450.10). People v Johnson, 2022 NY Slip Op 01844, Third Dept 3-17-22

Practice Point: The Criminal Procedure Law lays out all the allowed grounds for appeal in a criminal case. The denial of a motion to correct, amend or settle a sentencing transcript is not appealable. The adding of a mandatory surcharge is not part of a sentence and therefore is not appealable.

 

/ , , ,

THE MAJORITY HELD THE APPELLATE DIVISION PROPERLY REFUSED TO HEAR APPELLANT FATHER’S APPEAL IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING BECAUSE FATHER WAS IN DEFAULT (NO APPEAL LIES FROM A DEFAULT); THE DISSENT ARGUED FATHER WAS NOT IN DEFAULT BECAUSE HE APPEARED BY COUNSEL (CT APP).

The Court of Appeals, affirming the Appellate Division, over a strong dissent, determined the Appellate Division properly concluded it could not hear the appellant father’s appeal in this termination-of-parental-rights proceeding because he was in default (no appeal lies from a default judgment). The dissent argued father appeared by counsel and therefore was not in default:

Before this Court, appellant does not dispute the Appellate Division’s determination that his failure to appear constituted a default.

From the dissent:

The only reviewable issue before us is whether the Appellate Division properly dismissed appellant father’s appeal from a Family Court order terminating his parental rights on the ground that appellant defaulted. That decision was in error because appellant appeared through counsel during the fact-finding and dispositional hearings, as acknowledged by Family Court, and in accordance with the Family Court Act and the CPLR (see Family Ct Act § 165; CPLR 3215 [a]). Matter of Irelynn S., 2022 NY Slip Op 01869, Ct App 3-17-22

Practice Point: No appeal lies from a default judgment. The dissent argued: A party who appears by counsel, as appellant father did in these termination-of-parental-rights proceedings, is not in default.

 

/ ,

ALTHOUGH DEFENDANT’S ATTORNEY WAS SUSPENDED BY THE SECOND CIRCUIT BEFORE DEFENDANT’S TRIAL AND SUSPENDED IN NEW YORK JUST AFTER DEFENDANT’S TRIAL, DEFENDANT’S DEPRIVATION-OF-HIS-RIGHT-TO-COUNSEL AND INEFFECTIVE-ASSISTANCE ARGUMENTS WERE REJECTED; THE ATTORNEY WAS NOT OBLIGATED TO INFORM DEFENDANT OF HIS SUSPENSION OR THE PENDING SUSPENSION PROCEEDINGS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutmam, affirmed defendant’s conviction. The court noted: (1) defendant’s attorney had been suspended by the Second Circuit before defendant’s trial; (2) defendant’s attorney was still licensed in New York at the time of the defendant’s trial and conviction; (3) defendant’s attorney was suspended in New York two weeks after defendant’s conviction; (4) the New York suspension was made “retroactive” to the date of the Second Circuit suspension (before defendant’s trial); (5) the attorney was not obligated to inform defendant of the suspension by the Second Circuit; and (6) the failure to inform defendant was considered pursuant to defendant’s ineffective-assistance argument on appeal. Defendant’s motion to vacate his conviction and his appeal were deemed properly rejected by the lower courts:

… [T]he imposition of reciprocal discipline is not a foregone conclusion, nor is the nature or length of any reciprocal discipline imposed certain. Defendant’s proposed rule would deprive attorneys of the due process to which they are entitled in pending reciprocal disciplinary proceedings. * * *

No statute, court order, or New York Rule of Professional Conduct affirmatively required [defendant’s attorney] to disclose the Second Circuit’s suspension or the pending reciprocal disciplinary proceedings in New York to defendant.  * * *

We decline to create a bright-line rule invariably requiring attorneys to affirmatively disclose the imposition of foreign discipline or pending reciprocal discipline proceedings to their clients in every case, where no court order or ethical rule requires such disclosure. …

Instead, we conclude that an attorney’s failure to disclose the imposition of foreign discipline and pending reciprocal disciplinary proceedings can adequately be assessed in the context of an ineffective assistance of counsel claim … . People v Burgos, 2022 NY Slip Op 01868, Ct App 3-17-22

Practice Point: There is no statute or rule which requires an attorney to disclose to his or her client a suspension from practice in a foreign jurisdiction or ongoing suspension proceedings in New York State.

 

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