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THERE IS NO FEDERAL SEX-OFFENDER-REGISTRATION REGIME; THEREFORE A FEDERAL CHILD-PORNOGRAPHY CONVICTION DOES NOT CONSTITUTE A “FELONY IN ANY OTHER JURISDICTION FOR WHICH THE OFFENDER IS REQUIRED TO REGISTER AS A SEX OFFENDER” WITHIN THE MEANING OF THE CORRECTION LAW; DEFENDANT SHOULD NOT HAVE BEEN CLASSIFIED AS A “SEXUALLY VIOLENT OFFENDER” BASED UPON THE “FOREIGN-FELONY” PROVISION OF THE CORRECTION LAW (CT APP). ​

The Court of Appeals, reversing (modifying) the Appellate Division, in a full-fledged opinion by Judge Cannataro, determined defendant should not have been classified as a sexually violent offender because his federal child pornography conviction did not require registration as a sex offender. The Correction Law defines a “sexually violent offender” to include a defendant who has been convicted of a felony in a foreign jurisdiction and is required to register as a sex offender in that jurisdiction. Because there is no federal sex-offender-registration regime, the foreign-conviction provision of the Correction Law does not apply here:

The primary issue on this appeal from a Sex Offender Registration Act (SORA) risk assessment determination is whether defendant was properly designated as a sexually violent offender under Correction Law § 168-a (3). SORA defines three circumstances under which such a designation is appropriate. Relevant here is the third circumstance: where a defendant stands convicted of “a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred” (Correction Law § 168-a [3] [b]). A plain reading of the statutory language, and application of our precedent in this area, establish that defendant was not required to register as a sex offender in the jurisdiction in which his conviction occurred and, therefore, was improperly designated as sexually violent. * * *

Applying the clear and unambiguous statutory language in this case, defendant cannot be designated as “sexually violent” because he was not required to register as a sex offender in the jurisdiction in which his conviction occurred. This is so because the federal government does not maintain a sex offender registry of the sort that states are required to operate by federal mandate. Although the federal government maintains two sex offender databases, the information contained in them merely represents a collection of registration information acquired from registries maintained by individual state and territorial jurisdictions (see 34 USC § § 20921; 20922). People v Sherlock, 2025 NY Slip Op 02966, CtApp 5-15-25

Practice Point: There is no federal sex-offender-registration regime. Therefore a federal child pornography conviction does not constitute a “felony in any other jurisdiction for which the offender is required to register as a sex offender” within the meaning of the Correction Law. Therefore a federal child pornography conviction does not trigger a “sexually violent offender” SORA designation.

 

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THE AFFIDAVIT SUBMITTED TO DEMONSTRATE PLAINTIFF HAD POSSESSION OF THE NOTE PRIOR TO COMMENCING THE FORECLOSURE ACTION WAS HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate standing in this foreclosure action. The affidavit submitted to demonstrate plaintiff had possession of the note prior to commencing the action was hearsay:

… [T]he plaintiff relied on Harris’s affidavit to demonstrate that it had possession of the note prior to commencing this action. Harris averred, in relevant part, that the plaintiff received physical delivery of the original note on September 5, 2013. As the defendant correctly notes, Harris failed to attach any business record to her affidavit to demonstrate that fact or to aver that she had personal knowledge of the physical delivery of the note. Accordingly, Harris’s averment that the plaintiff had possession of the note prior to the commencement of this action was inadmissible hearsay and insufficient to establish, prima facie, the plaintiff’s standing … . Nationstar Mortage, LLC v Guarino, 2025 NY Slip Op 02925, Second Dept 5-14-25

Practice Point: Whoever submits an affidavit stating the plaintiff in a foreclosure action had possession of the note before the action was commenced must attach a probative business record or demonstrate personal knowledge of the delivery of the note, not the case here.

 

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FATHER’S PETITIONS FOR A MODIFICATION OF CUSTODY RAISED FACTUAL QUESTIONS REQUIRING A HEARING; MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Family Court and remitting the case for a hearing, determined father’s petitions for a modification of custody should not have been dismissed without a hearing:

… Family Court improperly dismissed, without a hearing, the father’s amended modification petition and violation petition. Contrary to the court’s determination, the father’s assertions, which were supported by the requisite threshold evidentiary showing, demonstrated factual issues so as to require a hearing on the issue of whether the existing parental access arrangement continued to serve the child’s best interests … . Among other things, the father sufficiently alleged that since the custody order was issued, he has achieved seven years of sobriety. Moreover, the father sufficiently alleged that the mother made a statement, which she does not deny making, with the intent or effect of estranging the child from, or creating resentment towards, the father in violation of the custody order. The issue of whether the intent or subsequent effect of the statement constituted a violation of the custody order should have been resolved at a hearing … . Matter of Sanna v Delong, 2025 NY Slip Op 02922, Second Dept 5-14-25

Practice Point: Once again a Family Court ruling is reversed because a hearing was not held. Here, in petitions for a modification of custody, father cited his years of sobriety and a statement attributed to mother that she intended to estrange the child from father. That was enough to warrant a hearing on the petitions.

 

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THE JUDGMENT OF FORECLOSURE AND SALE WAS REVERSED ON APPEAL; THE DEFENDANT IN THE FORECLOSURE ACTION DID NOT SEEK A STAY PENDING APPEAL; THE FACT THAT THE NOTICE OF PENDENCY, FILED BY THE BANK AT THE OUTSET OF THE FORECLOSURE PROCEEDINGS, WAS STILL IN EFFECT AT THE TIME OF THE FORECLOSURE SALE DID NOT AFFECT THE TRANSFER OF TITLE TO A GOOD FAITH PURCHASER AT THE FORECLOSURE SALE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Brathwaite Nelson, determined the defendant in the foreclosure action, Yesmin, upon reversal of the judgment of foreclosure and sale on appeal, was not entitled to cancel and discharge the referee’s deed transferring title to a good faith purchaser of the foreclosed property. It is significant here that the defendant in the foreclosure action did not seek a stay pending appeal. The notice of pendency, filed by the bank in the foreclosure action, which was still in effect at the time of the foreclosure sale, did not affect the title acquired by the good faith purchaser:

This appeal raises the question of what effect an extant notice of pendency has on the title to real property acquired by a third party from a judicial foreclosure sale when the judgment of foreclosure and sale is reversed on the appeal of a defendant to the foreclosure action. For the reasons that follow, we hold that a notice of pendency that was unexpired at the time of the foreclosure sale has no effect on the title acquired by a good faith purchaser for value from a sale conducted pursuant to the judgment of foreclosure and sale. * * *

Once a judgment is entered, the need to obtain a stay pending appeal in order to protect the right to restitution of the property is shared equally by a defendant or a plaintiff against whom the judgment is entered. Where a judgment has been entered against a plaintiff, “the plaintiff’s right to impair the marketability of the property during the pendency of an appeal [is conditioned] upon the issuance of a discretionary CPLR 5519(c) stay” … . Thus, regardless of whether the judgment is issued in favor of a defendant or the plaintiff, once a judgment is entered, a stay is necessary to protect the property, and in the absence of a stay, the winning party is free to transfer the property as it sees fit. * * *

Since [the good faith purchaser of the foreclosed property] established that it is “a purchaser in good faith and for value” whose title would be affected by restitution of Yesmin’s property rights lost by the judgment of foreclosure and sale, Yesmin may not seek restitution by canceling the referee’s deed and, instead, is limited to monetary relief against the plaintiff to the foreclosure action (CPLR 5523 …). Yesmin v Aliobaba, LLC, 2025 NY Slip Op 02964, Second Dept 5-14-25

Practice Point: If the defendant in a foreclosure action which is appealed does not seek a stay pending appeal, the reversal on appeal does not affect title transferred to a good faith purchaser at the foreclosure sale.

 

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ALTHOUGH A CONSTRUCTION MANAGER IS GENERALLY NOT LIABLE FOR INJURIES TO A WORKER UNDER LABOR LAW 240(1) OR 241(6), HERE THE CONSTRUCTION MANAGER, BY CONTRACT, WAS RESPONSIBLE FOR SAFETY AT THE WORKSITE AND SUPERVISED THE WORK; THEREFORE THE CONSTRUCTION MANAGER WAS A STATUTORY AGENT OF THE PROPERTY OWNER AND POTENTIALLY LIABLE UNDER LABOR LAW 240(1) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the construction manager, Tishman, was the property owner’s statutory agent in charge of safety at the worksite. Therefore Tishman could be liable for injury to a worker pursuant to Labor Law 240(1):

“A construction manager of a work site is generally not responsible for injuries under Labor Law . . . [§ ] 240(1) . . . or § 241(6) unless it functions as an agent of the property owner or general contractor in circumstances where it has the ability to control the activity which brought about the injury” … . “The label given a defendant, whether ‘construction manager’ or ‘general contractor,’ is not determinative” … . “Instead, the core inquiry is whether the defendant had the ‘authority to supervise or control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition'” … .

Here, in support of his motion for summary judgment, the plaintiff submitted the construction management services contract, which charged Tishman with, inter alia, enforcing subcontractors’ compliance with safety requirements and taking precautions to minimize the risk of injuries. The contract further gave Tishman the right to choose the means and methods of construction. Although Tishman did not directly supervise or control the plaintiff’s work, Tishman’s safety manager for the project testified at his deposition that he was “in charge of safety at . . . [the] project full-time.” In addition, a foreperson for another trade testified at his deposition that Tishman would correct other workers who were performing their work in an unsafe manner. Under these circumstances, Tishman was a statutory agent of DDC and was, therefore, potentially liable for the plaintiff’s alleged injuries under Labor Law § 240(1) … . Weekes v Tishman Tech. Corp., 2025 NY Slip Op 02959, Second Dept 5-14-25

Practice Point: Although a construction manager is generally not liable to an injured worker under Labor Law 240(1) or 241(6), here the construction manager was, by contract, a statutory agent of the property owner responsible for the supervision of the work and the safety of the workers. Statutory agents of the property owner or general contractor are potentially liable to injured workers under Labor Law 240(1) and 241(6).

 

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THE AFFIANT DID NOT DEMONSTRATE PERSONAL KNOWLEDGE OF THE MAILING PROCEDURES AND DID NOT LAY A FOUNDATION FOR THE ATTACHED BUSINESS RECORDS; THEREFORE THE BANK IN THIS FORECLOSURE ACTION DID NOT PROVE THE RPAPL 1304 NOTICE WAS PROPERLY MAILED, A CONDITION PRECEDENT FOR FORECLOSURE (SECOND DEPT). ​

The Second Department, reversing the judgment of foreclosure, determined the plaintiff did not prove the mailing of the RPAPL 1304 notice of foreclosure, a condition precedent for foreclosure. The affidavit did not demonstrate the affiant had personal knowledge of the relevant mailing procedures and did not provide an adequate foundation for relevant business records:

… [T]he affidavits submitted in support of Bank of America’s second motion … for summary judgment on the complaint … did not establish the affiants’ personal knowledge of the standard office mailing procedures of LenderLive, the third-party vendor that apparently sent the RPAPL 1304 notices on behalf of Bank of America … . The affidavits also “failed to address the nature of [Bank of America’s] relationship with LenderLive and whether LenderLive’s records were incorporated into [Bank of America’s] own records or routinely relied upon in its business” … . Bank of America thus “failed to lay a foundation for the admission of the transaction report generated by LenderLive” … .. Accordingly, Bank of America failed to establish its strict compliance with RPAPL 1304 … . Therefore, the Supreme Court should have denied those branches of Bank of America’s second motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. U.S. Bank N.A. v Bravo, 2025 NY Slip Op 02953, Second Dept 5-14-25

Same issues and result in Wells Fargo Bank, N.A. v Murray, 2025 NY Slip Op 02960, Second Dept 5-14-25

Practice Point: Any affidavit submitted by the bank in a foreclosure action to prove the mailing of the RPAPL 1304 notice of foreclosure must demonstrate the affiant’s personal knowledge of the mailing procedures and must lay a foundation for the admissibility of any business records relied upon to prove proper mailing.

 

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IN THIS CHILD VICTIMS ACT CASE, THE ALLEGED FREQUENCY OF THE ABUSE BY A TEACHER RAISED QUESTIONS OF FACT ABOUT THE SCHOOL DISTRICT’S CONSTRUCTIVE NOTICE OF THE ABUSE AND WHETHER ITS SUPERVISION OF PLAINTIFF STUDENT WAS NEGLIGENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined this Child Victims Act action alleging the negligent hiring, retention and supervision of a teacher, as well as negligent supervision of plaintiff student, should not have been dismissed. The defendant school district did not eliminate questions of fact about whether it had constructive notice of the abuse based upon the alleged frequency of the abuse:

… [T]he defendants failed to establish, prima facie, that they lacked constructive notice of the teacher’s alleged abusive propensities and conduct … . Considering, among other things, the frequency of the alleged abuse, which occurred over the course of two school years, inter alia, in a classroom and inside the teacher’s vehicle, the defendants did not eliminate triable issues of fact as to whether they should have known of the alleged abuse … . The defendants also failed to demonstrate, prima facie, that their supervision of both the teacher and the plaintiff was not negligent … . Trunco v Eastport- S. Manor Cent. Sch. Dist., 2025 NY Slip Op 02951, Second Dept 5-14-25

Practice Point: In a Child Victims Act action against a teacher, allegations of the frequency and the locations of the abuse of a student may be sufficient to raise questions of fact about whether the school district had constructive notice of the abuse and whether the supervision of the student was negligent.

 

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DEFENDANT’S FOR CAUSE CHALLENGE TO A JUROR REQUIRED FURTHER INQUIRY BY THE JUDGE; IN THE ABSENCE OF A SUFFICIENT INQUIRY AND THE ELICITATION OF AN UNEQUIVOCAL ASSURANCE OF THE ABILITY TO BE IMPARTIAL, THE DENIAL OF THE CHALLENGE WAS REVERSIBLE ERROR (SECOND DEPT).

The Second Department, reversing defendant’s convictions and ordering a new trial, determined that a for-cause challenge to a juror should have been should have been granted:

… [T]he People provided evidence that the defendant had engaged in a campaign of harassment, intimidation, and embarrassment over a period of more than two years in which he, inter alia, shared nude photographs and sexually explicit videos of the complainant with her family and employers, accessed the complainant’s social media accounts and posted similarly explicit material, and repeatedly called emergency service providers and requested emergency responses to the complainant’s home in Queens. * * *

… [D]uring voir dire, prospective juror No. 16, J. M., acknowledged a prior experience being a defendant in what he characterized as a “frivolous” civil suit. J. M. initally stated that he did not “think” his experience would affect his ability to evaluate the case fairly, and then later affirmed that he could not give his complete assurance that he would be able to put the experience aside. Based on the totality of the record, these statements raised a serious doubt about J. M.’s ability to be impartial. At that point, it was incumbent upon the Supreme Court to conduct a follow-up inquiry to elicit some unequivocal assurance of J. M.’s ability to be impartial or to excuse the prospective juror … . Since the defendant exhausted his peremptory challenges, the denial of his for-cause challenge to J. M. constitutes reversible error … . People v Wilson, 2025 NY Slip Op 02940, Second Dept 5-14-25

Practice Point: If a juror cannot state he or she will be able to evaluate the case fairly, the judge must make an attempt to elicit an unequivocal assurance of the juror’s ability to be impartial. Absent such an unequivocal assurance, the denial of defendant’s for cause challenge is reversible error (where, as here, all of defendant’s peremptory challenges have been exhausted).

 

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ALTHOUGH THE INFORMANT WHO CALLED 911 ABOUT A “MAN WITH A GUN” WAS KNOWN TO THE POLICE AND MAY BE PRESUMED TO BE RELIABLE, THERE WAS NO TESTIMONY AT THE SUPPRESSION HEARING ABOUT THE BASIS FOR THE INFORMANT’S KNOWLEDGE; THEREFORE THE PEOPLE DID NOT PROVE THE POLICE HAD REASONABLE SUSPICION TO STOP THE DEFENDANT; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing County Court, determined the suppression motion should have been granted. Although the informant who made the 911 call was known to the police, there was no testimony at the suppression hearing about the basis of the informant’s knowledge. The stop of defendant’s vehicle for failure to use a turn signal did not justify removing defendant from the vehicle and handcuffing him:

When the People seek to rely on information provided by an informant to establish the reasonable suspicion necessary to justify a vehicle stop, “‘it [is] essential that at least some showing be made of the basis of the informant’s knowledge'” … . Where there is no testimony demonstrating how the informant knew the defendant was engaged in illegality, such as the possession of a weapon, reasonable suspicion cannot be found … .

… Neither the sergeant nor the officer testified as to how the informant, who had called the 911 emergency number, knew that the defendant had a gun. Therefore, the People failed to demonstrate that the information provided by the informant constituted “more than unsubstantiated rumor, unfounded accusation or conclusory characterization” … .

In the absence of the People eliciting testimony at the suppression hearing that sufficiently explained how the informant knew the defendant was in possession of a weapon, the County Court erred in concluding that the officers had reasonable suspicion to stop the defendant … . Moreover, while the informant did identify the defendant from across the street, this identification occurred well after the defendant had been stopped and detained by the officers. “‘Where a police encounter is not justified in its inception, it cannot be validated by a subsequently acquired suspicion'” … .

… [W]hile the informant, who was known to the responding officers, may be presumed to be reliable, the basis of his knowledge was not sufficiently established at the suppression hearing. People v Thomison, 2025 NY Slip Op 02938, Second Dept 5-14-25

Practice Point: At a suppression hearing, the People have the burden to prove the legality of the police conduct. Where an informant known to the police calls 911 to report a “man with a gun,” the reliability of the informant may be presumed. But the People must still prove the basis for the informant’s knowledge. Where, as here, there is no testimony demonstrating how the informant learned about the “man with a gun,” the People have not met their burden of proof.

 

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IN THIS STREET-STOP-FRISK CASE, THE POLICE OFFICER TESTIFIED HE SAW DEFENDANT PUT A BLACK OBJECT IN HIS JACKET POCKET, BUT HE DID NOT TESTIFY HE HAD A REASONABLE SUSPICION THE OBJECT WAS A FIREARM; THEREFORE THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE STOP AND FRISK; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECON DEPT).

The Second Department, reversing Supreme Court’s denial of the suppression motion in this street-stop case, determined the police officer, Espinal, did not have a reasonable suspicion that the object defendant put in his pocket was a firearm. Therefore the officer did not have a sufficient reason to grab defendant’s pocket:

While driving down 193rd Street toward a dead end, Detective Espinal spotted a vehicle illegally parked in the middle of the dead end’s cul-de-sac. Detective Espinal testified that there appeared to be an individual in the driver’s seat and another individual standing outside the vehicle by the driver’s window. Detective Espinal observed that the individual standing outside the vehicle, who was later identified as the defendant, was holding a black object in his right hand, although Detective Espinal could not identify the object. Detective Espinal testified that when the defendant made eye contact with him, the defendant put the object into the right front pocket of the jacket that he was wearing and proceeded to walk toward the police vehicle with his hands in his jacket pockets. As the defendant continued to walk toward the police vehicle, Detective Espinal exited the vehicle and directed the defendant to take his hands out of his jacket pockets and put his hands up. Although the defendant initially complied, as Detective Espinal got closer, the defendant began to reach down toward his right jacket pocket. Upon seeing the defendant reach for his jacket pocket, Detective Espinal grabbed the pocket and felt a firearm inside. Detective Espinal withdrew a firearm from the defendant’s pocket and instructed one of his partners to place the defendant under arrest. * * *

… Detective Espinal did not have the required reasonable suspicion to frisk the defendant. Detective Espinal’s testimony is clear. He saw the defendant outside the illegally parked vehicle and watched as the defendant placed a black object in his jacket pocket. Detective Espinal did not testify as to what he thought the object was or whether he had any reasonable suspicion to believe that the object was a weapon of any kind, let alone a firearm. The only instance of illegality that Detective Espinal testified to was the illegally parked vehicle, which would not have provided the officers with a basis to frisk the defendant … . People v Taylor, 2025 NY Slip Op 02937, Second Dept 5-14-25

Practice Point: The People have the burden of demonstrating the legality of the police conduct in a stop and frisk. Here the officer testified he saw defendant put a black object in his pocket, but he did not testify he suspected the object was a firearm. The fact that the incident took place in a high-crime area was not enough to provide reasonable suspicion sufficient for a stop and frisk.​

 

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