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IN THIS CHILD VICTIMS ACT CASE ALLEGING DAILY SEXUAL ABUSE BY A TEACHER, THE PLAINTIFF’S AND A FACULTY MEMBER’S DEPOSITION TESTIMONY RAISED A QUESTION OF FACT ABOUT WHETHER DEFENDANT SCHOOL DISTRICT HAD CONSTRUCTIVE NOTICE OF THE TEACHER’S PROPENSITY FOR ABUSE AND THE ABUSE ITSELF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant school district’s motion for summary judgment in this Child Victims Act case should not have been granted. Plaintiff alleged daily sexual abuse by a teacher. The school district submitted plaintiff’s deposition transcript and a faculty member’s deposition transcript in support of the summary judgment motion. The plaintiff’s allegations of daily abuse and the faculty member’s testimony that students had informed him of the abuse and he believed other teachers were aware of the abuse raised questions of fact about negligent hiring and retention of the teacher and negligent supervision of the plaintiff:

In support of their motion, the defendants submitted … a transcript of the deposition testimony of the plaintiff, who testified that over the course of the school year, while he was in the seventh grade, he was sexually abused by the teacher daily and that the teacher’s abusive propensities were common and open knowledge in the middle school’s community. The defendants also submitted a transcript of the deposition testimony of a faculty member who was employed by the school district at the same time as the teacher, who testified that students had informed him that the teacher engaged in inappropriate conduct and that he believed other teachers were aware of said alleged conduct. Therefore, the defendants’ own submissions demonstrated the existence of triable issues of fact as to whether the defendants had actual or constructive notice of the alleged abuse of the plaintiff and of the teacher’s alleged abusive propensities and as to whether the defendants’ supervision of the plaintiff and the teacher was negligent … . Since the defendants failed to meet their prima facie burden, the court should have denied the defendants’ motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff’s opposition papers … . T.F. v Clarkstown Cent. Sch. Dist., 2025 NY Slip Op 03042, Second Dept 5-21-25

Practice Point: In Child Victims Act cases alleging frequent sexual abuse by a teacher, courts are increasingly willing to hold that the plaintiff’s allegations of frequent abuse alone are sufficient to raise a question of fact about constructive notice on the part of the school.

 

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WHETHER THE TRENCH WAS THREE OR SEVEN FEET DEEP, PLAINTIFF SHOULD HAVE BEEN PROVIDED WITH A LADDER OR A RAMP TO DESCEND INTO IT BUT WAS TOLD TO JUMP DOWN; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was injured when he jumped into an excavated trench. Plaintiff testified that the trench was five to seven feet deep and he asked for a ladder but was told to jump down. There was conflicting testimony about the depth of the trench which defendant claimed was 3 1/2 feet deep:

Plaintiff’s descent into the trench constituted an elevation-related hazard within the scope of Labor Law § 240(1) requiring a ladder or ramp for proper protection … . Accordingly, plaintiff made a prima facie case that Navesink and SLS violated Labor Law § 240(1) by failing to provide a ladder or ramp to enable him to safely climb down into the trench, where he was assigned to shovel soil to even out the landscape at the bottom of the trench.

In opposition, defendants failed to raise a triable issue of fact. The witnesses’ varying estimates of the depth of the excavated trench, ranging from around three feet to five feet to seven feet, do not present an issue of fact as to whether plaintiff’s accident resulted from a significant elevation differential … . McCormick v DiPersia, 2025 NY Slip Op 03019, First Dept 5-20-25

Practice Point: Here plaintiff was injured when he jumped into a trench. There was conflicting testimony about the depth of the trench, three to seven feet. Whether the depth was three feet or seven feet, defendant was required to provide a ladder or a ramp to descend into it. Therefore, plaintiff, who was told to jump down, was entitled to summary judgment on the Labor Law 240(1) cause of action.

 

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HERE DEFENDANT MADE A TIMELY REQUEST TO REPRESENT HIMSELF WHICH WAS DENIED WITHOUT ANY INQUIRY; DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO SELF-REPRESENTATION (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissenting opinion (three judges), reversing defendant’s convictions and ordering a new trial, determined that the judge’s failure to conduct an inquiry before denying defendant’s request to represent himself violated his constitutional right to self-representation:

A defendant has a constitutional right to proceed pro se (see US Const Amend VI; NY Const, art I, § 6; see also CPL 170.10 [6], 180.10 [5], 210.15 [5] [codifying a defendant’s constitutional right to self-representation]). Defendant invoked that right when he informed Supreme Court that he “would like to represent [him]self” at his upcoming trial. People v McIntyre (36 NY2d 10 [1974]) and its progeny required that the court make a searching inquiry into defendant’s unequivocal and timely request to proceed pro se, to determine whether that request was knowing, voluntary, and intelligent. Contrary to that rule, the court immediately denied defendant’s request without inquiry, and it expressly refused to consider any further request until the day of trial. The court’s failure to inquire into defendant’s request violated his constitutional right to self-representation. Therefore, we reverse and grant defendant a new trial.

On June 4, 2018, the parties appeared for trial. * * * This colloquy followed:

THE DEFENDANT: I’m going to go cocounsel.
THE COURT: I can’t hear you.
THE DEFENDANT: Cocounsel. I’m going to go cocounsel.
THE COURT: Cocounsel?
THE DEFENDANT: Yes.
THE COURT: What is that?
THE DEFENDANT: Meaning I’m going to represent myself in this case.
THE COURT: You mean pro se.
THE DEFENDANT: Yes. I will be going pro se at trial. I will be representing myself acting as my own.
THE COURT: You made no application before me.
THE DEFENDANT: I never said I wanted a trial by jurors. I never told this individual that I wanted a trial by jurors.
THE COURT: You know, Mr. Lewis, I’m assuming now you’re trying to play games with this court. . . . I’ll continue with this trial. If you want to speak to [defense counsel] about certain issues, I’ll hear [defense counsel] tomorrow morning.”

The following morning, the court invited defendant to raise any issues before proceeding with jury selection. Defendant asserted again that he did not want defense counsel to represent him, alleging that counsel was ineffective, had a conflict of interest, and was not working on his behalf. The court only responded, “[o]kay. Nicely done,” and continued the proceeding. People v Lewis, 2025 NY Slip Op 03011, CtApp 5-20-25

Practice Point: A defendant has a constitutional right to self-representation. A judge must conduct a “searching inquiry” upon a timely request.​

 

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THE PRESENTENCE INTERVIEW WAS CANCELLED DUE TO TECHNICAL DIFFICULTIES; THEREFORE THE PRESENTENCE REPORT WAS DEVOID OF INFORMATION ABOUT DEFENDANT’S EDUCATION, EMPLOYMENT, HEALTH STATUS, MENTAL HEALTH AND DEFENDANT’S MOTIVE; ALTHOUGH DEFENDANT WAS SENTENCED IN ACCORDANCE WITH THE PLEA AGREEMENT, THE DEFICIENT PRESENTENCE INVESTIGATION AND REPORT REQUIRED VACATION OF THE SENTENCE (FIRST DEPT).

The First Department, vacating defendant’s negotiated sentence, determined the failure to interview the defendant before creating the presentence report  was tantamount to the failure to conduct the mandatory presentence investigation. The defendant did not take any action to avoid the presentence interview which was scheduled but cancelled due to technical difficulties:

At sentencing, defense counsel confirmed that the presentence report was prepared without any interview because of technical difficulties. The court remarked this was “not unusual,” but directed that defendant be arraigned for sentence. In response to the court’s invitation for the parties to address any issues relevant to sentence, defense counsel stated only that he relied on the promised sentence. The court proceeded to impose sentence with no further discussion of the presentence report.

Presentence investigations of persons convicted of felonies are statutorily mandated, and a court may not pronounce sentence until it has received a written report of such an investigation (see CPL 390.20[1] …). The presentence report may be “the single most important document at both the sentencing and correctional levels of the criminal process” … , as it contains multiple categories of information concerning the defendant’s background and the subject offense … .

Because there was no presentence interview, the presentence report in this case was seriously deficient. The report was devoid of information regarding defendant’s education, employment history, health status, and mental health, each a statutorily prescribed category … . The report also noted that it had no information as to defendant’s motive. People v Pizzaro, 2025 NY Slip Op 03025, First Dept 5-20-25

Practice Point: A presentence report which is incomplete because the defendant was never interviewed requires vacation of the sentence, notwithstanding that the sentence was in accordance with the plea agreement.

 

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MOTHER’S APPEALS FROM EXPIRED PERMANENCY HEARING ORDERS (RE: CHILDREN’S PLACEMENT IN FOSTER CARE) WERE PROPERLY DISMISSED AS MOOT, TWO COMPREHENSIVE DISSENTING OPINIONS (THREE DISSENTING JUDGES) (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over two comprehensive dissenting opinions (three judges), determined the Appellate Division had properly dismissed mother’s appeals of expired permanency hearing orders (re: children’s placement in foster care) as moot, and properly declined to hear the appeals under an exception to the mootness doctrine:

Generally, ” ‘an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment’ ” … . Here, the Appellate Division properly determined that the mother’s appeals are moot. At the time the Appellate Division entered its decisions, both permanency hearing orders were “superseded by subsequent permanency hearing orders, which continued the child’s placement in foster care” … . * * *

… [T]he Appellate Division did not abuse its discretion in determining that the issues raised below were “not sufficiently substantial or novel to warrant an exercise of [its] exceptional discretion to retain the appeal despite mootness” … . Matter of Joshua J. (Tameka J.), 2025 NY Slip Op 03010, CtApp 5-20-25

Practice Point: Consult this opinion for concise explanations of the appellate mootness doctrine and the application of an exception to the mootness doctrine.

 

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DEFENDANT IN THIS GRAND LARCENY CASE WAS DETAINED BY STORE SECURITY GUARDS; DEFENSE COUNSEL FIRST LEARNED THE IDENTITY OF ONE OF THE STORE’S SECURITY PERSONNEL ON THE EVE OF THE HEARING TO DETERMINE WHETHER THE SECURITY GUARDS WERE LICENSED TO EXERCISE POLICE POWERS OR WERE AGENTS OF THE POLICE; THEREFORE DEFENSE COUNSEL’S REQUEST FOR AN ADJOURNMENT TO SUBPOENA THE STORE’S EMPLOYMENT POLICIES AND OTHER EMPLOYMENT INFORMATION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court and ordering a new “state action” hearing, determined defense counsel’s request for an adjournment to subpoena information about the store security guards’ employment should have been granted. The issue is whether the store security guards who detained the defendant in this grand larceny case were licensed to exercise police powers or acted as agents of the police. Defense counsel learned the name of the store’s lead investigator at the time of defendant’s detention on the eve of the state action hearing. The First Department noted that defense counsel could not properly subpoena the employment information without knowing the identities of the people involved:

… [W]e find that the court improvidently exercised its discretion in denying defense counsel a short adjournment. In denying the requested adjournment, the court found that defendant “could have done that [subpoena … records] a long time ago, maybe even when this appeal was being perfected.” On this appeal, the People make a similar argument that the court did not improvidently exercise its discretion in denying the adjournment because defense counsel could have subpoenaed the materials during the pendency of this appeal. The problem with these arguments is that this Court had already recognized that, without information about the identity of the officers involved in defendant’s arrest, defense counsel was not in a position to meaningfully subpoena records … .

Contrary to the court’s suggestion, this is not the situation where defense counsel failed to exercise due diligence. In fact, as we held, without knowing the names of the store security guards involved in defendant’s detention, defendant was in no better position to subpoena the employer material than when he filed his initial motion. Thus, it was only upon learning the identity of one member of the security team that the defense could meaningfully begin to investigate whether the security guards were state actors. People v Sneed, 2025 NY Slip Op 03026, First Dept 5-20-25

Practice Point: If a defendant is detained by store security guards, the detention may implicate constitutional protections if the security guards are licensed to exercise police powers or are agents of the police. The defense, therefore, may be entitled to a so-called “state action” hearing. To subpoena the appropriate store employment records, defense counsel is entitled to the identities of the security guards involved in defendant’s detention.

 

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PURSUANT TO THE “INTERNAL AFFAIRS” DOCTRINE, PLAINTIFF, A NEW YORK CORPORATION AND BENEFICIAL OWNER OF SHARES IN BARCLAYS, AN ENGLISH CORPORATION, DID NOT HAVE STANDING TO BRING A DERIVATIVE SUIT ON BEHALF OF BARCLAYS AGAINST OFFICERS AND MANAGERS OF A NEW YORK AFFILIATE OF BARCLAYS IN NEW YORK (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a comprehensive dissenting opinion, determined that the Business Corporation Law (BCL)  (sections 626(a) and 1319(a)(2)) has not displaced the “internal affairs” doctrine, a choice-of-law rule providing that the substantive law of the place of incorporation governs disputes about the rights and relationships of corporate shareholders and managers. The Court of Appeals affirmed the lower courts’ rulings that plaintiff, a New York corporation and a beneficial owner of shares in England-based Barclays, did not have standing to sue, on behalf of Barclays, directors and officers of Barclays New York-based affiliate in New York:

The corporation at the center of this appeal is Barclays PLC (Barclays), a bank holding company incorporated under the laws of England and Wales and headquartered in London. Plaintiff Ezrasons, Inc. is a New York corporation and a beneficial owner of Barclays shares. In 2021, plaintiff commenced this action on behalf of Barclays against almost four-dozen current and former Barclays directors and officers and a New York-based affiliate, Barclays Capital Inc. (BCI). The complaint alleged that the individual defendants, aided and abetted by BCI, breached fiduciary duties owed to Barclays under English law, causing significant injuries to the company. * * *

Supreme Court granted defendants’ motion to dismiss the complaint, explaining that under the internal affairs doctrine, foreign law governs the question of whether a plaintiff has the right to sue corporate management on behalf of a foreign corporation. The court rejected plaintiff’s argument that the legislature intended to override that choice-of-law rule when it enacted sections 626 (a) and 1319 (a) (2) of the BCL, agreeing with four decades of case law holding that those provisions “simply confer[] jurisdiction upon New York courts over derivative suits on behalf of out-of-state corporations, but do[ ] not require application of New York law in such suits” … .

The Appellate Division unanimously affirmed, agreeing with Supreme Court that plaintiff lacks standing to pursue this shareholder derivative action on behalf of Barclays … . … [T]he Appellate Division rejected plaintiff’s argument that sections 626 (a) and 1319 (a) (2) displace the internal affairs doctrine and preclude application of English standing law … . Ezrasons, Inc. v Rudd, 2025 NY Slip Op 03008, CtApp 5-20-25

Practice Point: Business Corporation Law sections 626(a) and 1319(a)(2) do not displace the “internal affairs” doctrine which provides that the substantive law of the place of incorporation (England in this case) governs disputes about the rights and relationships of corporate shareholders and managers. Here a New York corporation which holds shares of an English corporation could not sue the officers and managers of a New York affiliate of the English corporation in New York.​

 

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PLAINTIFF WAS INJURED WHEN A STEP BROKE AS HE STEPPED ON IT; THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THERE WAS NO SIGN THE STEP WAS DEFECTIVE; HOWEVER, THE LABOR LAW 241(6) CAUSE OF ACTION, BASED ON AN INDUSTRIAL CODE PROVISION REQUIRING THAT A STAIRCASE BE “FREE OF DEFECTS,” PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the Labor Law 200 and negligence causes of action based upon a step which broke when plaintiff stepped on it should have been dismissed, but the Labor Law 241(6) cause of action, based upon the same defective step, properly survived summary judgment:

Defendants, owner and construction manager, are entitled to summary judgment dismissing plaintiff’s negligence and Labor Law § 200 claims … . … [T]he testimony in the record, including plaintiff’s statements that he observed nothing wrong with the stairs when he ascended and descended several times on the day of his accident, demonstrates that there was no visible or apparent damage to the step that broke as he stepped on it … . Thus, any defect with the step was latent so that defendants could not have discovered it upon a reasonable inspection … . * * *

Supreme Court … properly denied summary judgment to defendants on the Labor Law § 241(6) claim, to the extent based on Industrial Code (12 NYCRR) § 23-1.7(f). Defendants fail to show that this provision, which “imposes a duty upon a defendant to provide a safe staircase, free of defects,” does not apply … . Instead, the evidence shows that the step was defective since it broke under plaintiff’s foot … . Solarte v Brearley Sch., 2025 NY Slip Op 02995, First Dept 5-15-25

Practice Point: Here plaintiff was injured when a step broke under his weight. The Labor Law 200 and negligence causes of action should have been dismissed because the defect in the step could not have been detected. However, the Labor Law 240(1) cause of action, based on the same defective step, survived summary judgment because an Industrial Code provision requires that staircases be “free of defects”—an illustration of the stark difference between negligence-based liability and liability based on a regulatory violation.

 

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GIVING THE CORRECT “PRESUMPTION OF INNOCENCE” JURY INSTRUCTION THREE TIMES WITHOUT ACKNOWLEDGING THE ERRONEOUS INSTRUCTION WAS REVERSIBLE ERROR; CROSS-EXAMINATION ABOUT A CIVIL SUIT AGAINST A POLICE OFFICER WHO ALLEGEDLY SHOT THE PLAINTIFF SHOULD HAVE BEEN ALLOWED; THE JUDGE SHOULD HAVE HELD AN IN CAMERA REVIEW OF A POLICE OFFICER’S DISCIPLINARY RECORD (FIRST DEPT). ​

The First Department, reversing defendant’s convictions and ordering a new trial, determined: (1) although the judge accurately instructed the jury on the presumption of innocence three times, the judge failed to acknowledge the erroneous instruction, requiring reversal; (2) the judge should have allowed cross-examination of a police officer about a civil case in which the officer was alleged to have shot the plaintiff after plaintiff was subdued; and (3) the judge should have granted defendant’s motion for an in camera review of a police officer’s disciplinary record:

Notwithstanding that the court instructed the trial jury accurately and at length with regard to the presumption in its preliminary instructions, in another instruction at a break in the testimony of the first witness, and in its closing instructions, the court did not satisfy the requirement, clearly enunciated in People v Harrison (85 NY2d 891 [1995]), that “to obviate an erroneous instruction upon a material point, it must be withdrawn in such explicit terms as to preclude the inference that the jury might have been influenced by it” … . A withdrawal in explicit terms cannot be accomplished without acknowledging the erroneous instruction, identifying the error, and providing a correct instruction … .

… [T]he court improvidently exercised its discretion, under the standard set forth in People v Smith (27 NY3d 652 [2016]), in not permitting cross-examination regarding the underlying facts of a civil suit, in which a testifying police officer in the present case was a defendant alleged to have shot the plaintiff in the leg in that case after he was subdued by police officers. The existence of the suit provided a “good faith basis for inquiring,” and the allegations of excessive force were “relevant to the credibility of the law enforcement witness” … . In light of the principle “that the right of cross-examination is implicit in the constitutional right of confrontation and helps assure the accuracy of the truth-determining process” … , the seriousness of the allegation that the officer accidentally shot a [*2]suspect in the leg was sufficient to allow inquiry into the facts underlying the lawsuit.

… [T]he court should have granted defendant’s motion pursuant to People v Gissendanner (48 NY2d 543 [1979]) to the extent of conducting an in camera review of the officer’s disciplinary record, rather than forbidding all cross-examination regarding the allegations in an underlying civil suit. … The defendant’s motion should be granted when the defendant “put[s] forth in good faith . . . some factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its contents is not merely a desperate grasping for straws” … . Here, defendant alleged that the officer inflicted pain on him by twisting his wrist when he was already subdued, and the defense learned of two lawsuits in which the officer was alleged to have engaged in similar conduct. People v Fishbein, 2025 NY Slip Op 02996, First Dept 5-15-25

Practice Point: Consult this decision for (1) the procedure for correcting an erroneous jury instruction, (2) the criteria for allowing the cross-examination of a police officer about a civil suit in which it is alleged the officer shot the plaintiff, and (3) the criteria for granting a motion to conduct an in camera review of a police officer’s disciplinary record.

 

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BECAUSE DEFENSE COUNSEL DID NOT CONSENT TO THE ISSUANCE OF A PROTECTIVE ORDER REGARDING THE PEOPLE’S DISCOVERY OBLIGATIONS, THE JUDGE WAS REQUIRED TO HOLD A HEARING; MATTER REMITTED; ON REMITTAL THE PEOPLE SHOULD PROVIDE WRITTEN NOTICE OF THE REQUEST TO DEFENSE COUNSEL AND, TO FACILITATE ANY REQUEST FOR AN EXPEDITED REVIEW, DEFENSE COUNSEL SHOULD BE PROVIDED WITH A COPY OF THE PROTECTIVE ORDER (THIRD DEPT). ​

The Third Department, vacating the protective order and remitting the matter, determined the County Court failed to hold the hearing which is required where defense counsel did not consent to the issuance of a protective order. The Third Department offered guidance on how the further proceedings should be conducted, i.e., defense counsel should be given advanced written notice of the request for a protective order (a motion by order to show cause), and, to facilitate an expedited review, defense counsel should be provided with a copy of the protective order:

Pursuant to CPL 245.70 (3), “[u]pon request for a protective order, unless the defendant voluntarily consents to the people’s request for a protective order, the court shall conduct an appropriate hearing within three business days to determine whether good cause has been shown.” Here, it is undisputed that defense counsel did not consent to the People’s proposed protective order for the disputed materials…. . …

… [I]t is true that, under certain circumstances and in an appropriate case, CPL 245.70 (1) permits a court to conduct ex parte proceedings and accept in camera submissions. … “[T]he better practice, in most cases, would be for the People to provide the defendant with advanced written notice, by way of motion brought on by order to show cause, that certain information had not been disclosed and a protective order was being sought under CPL 245.70” … . Proceeding in this manner would “allow defense counsel to see the portions of the People’s written application that contained legal argument or other matter that would not reveal the information sought to be covered by the protective order” … , and ensure that defense counsel has a meaningful opportunity to participate in the hearing to the fullest extent practicable. …

… [R]ecognizing that CPL 245.70 (6) provides an opportunity for expedited review of a protective order by a Justice of the Appellate Division, “within two business days of the adverse or partially adverse ruling,” the party seeking such expedited review should be provided a copy of the subject order. While the papers submitted in support of the People’s application for a protective order and the hearing transcript may be appropriately sealed to preserve the confidentiality of sensitive information … , the same does not hold true for the protective order itself. That said, in drafting a protective order, the court should be mindful not to discuss the protected materials or include confidential information that would obviate the basis for granting the protective order or sealing the documents and materials considered. People v Murphy, 2025 NY Slip Op 02975, Third Dept 5-15-25

Practice Point: Where defense counsel does not consent to a protective order, the statute requires the judge to conduct a hearing. Failure to hold the hearing requires vacation of the protective order.

Practice Point: The better practice is to notify defense counsel of the request for a protective order by a motion brought by an order to show cause.

Practice Point: Defense counsel who seeks an expedited review should be provided with a copy of the protective order.

 

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