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THE POLICE TESTIMONY AT THE SUPPRESSION HEARING WAS NOT WORTHY OF BELIEF; THEREFORE THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE POLICE CONDUCT; INDICTMENT DISMISSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction by guilty plea and dismissing the indictment, determined the police did not demonstrate the legality of the street stop which culminated in the pursuit of the defendant and the seizure of the firearm in defendant’s possession. The testimony of the arresting officer, Tofalli, at the suppression hearing was deemed unworthy of belief. Therefore the People did not meet their initial burden at the hearing, i.e., proving the legality of the police conduct:

“‘In order to justify police pursuit, the officers must have reasonable suspicion that a crime has been, is being, or is about to be committed'” … . Reasonable suspicion exists where there is a “quantum of knowledge sufficient to induce an ordinarily prudent and cautious man [or woman] under the circumstances to believe criminal activity is at hand” … . “A suspect’s flight alone or in conjunction with equivocal circumstances that might suggest a police request for information is insufficient to justify pursuit,” and “[p]ursuit is only authorized when flight is combined with circumstances indicating that the suspect might be engaged in criminal activity” … .

Here, the People failed to establish the legality of the police conduct in the first instance, as Tofalli’s testimony was incredible as a matter of law and patently tailored to meet constitutional objections … . Tofalli’s testimony that when the defendant pulled up his pants he was able to see an “L-shape” outline in the defendant’s waistband while the initial target was standing two feet in front of the defendant directly between Tofalli and the defendant defies common sense and strains credulity. Moreover, Tofalli’s testimony was inconsistent with the notes he made in his memo book, arrest reports generated after the incident, and his testimony before the grand jury, none of which made any mention of the initial target … , and was further inconsistent with the recording obtained from Tofalli’s body-worn camera, which revealed that prior to his interaction with the initial target, the defendant was not touching his pants, and does not depict the defendant’s T-shirt tightening around an “L-shape” object. Accordingly, under the circumstances presented, we find Tofalli’s testimony unworthy of belief … . People v Black, 2025 NY Slip Op 01943, Second Dept 4-2-25

Practice Point: The flight of the subject of a street stop, without some other indication of criminal activity, does not justify pursuit.

Practice Point: If the police testimony at the suppression hearing is not worthy of belief, the People have failed to meet their burden to demonstrate the legality of the police conduct. Suppression must be granted.

 

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THE TOWN DID NOT ADEQUATELY EXPLAIN ITS FAILURE TO TURN OVER CERTAIN DOCUMENTS WHICH WERE CREDIBLY ALLEGED TO EXIST IN THE FOIL REQUEST; THE FOIL PETITION WAS REINSTATED AND THE MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Supreme Court and remitting the matter, determined the Town did not adequately explain its refusal to turn over documents relating to an Amazon warehouse and distribution center that was to be built in the Town. Therefore the petition, which was dismissed by Supreme Court, was reinstated:

Here, Meyer [the appellant] credibly alleged the existence of records, such as email correspondence between Amazon and the Town and traffic studies which may have been undertaken in connection with the approval of the new warehouse and distribution center, which were not produced. When faced with a request for such records, the Town was required to “either disclose the record sought, deny the request and claim a specific exemption to disclosure, or certify that it does not possess the requested document and that it could not be located after a diligent search” … . Merely representing that “[u]pon information and belief” all documents had been provided, as was averred by the Town’s FOIL appeals officer in connection with the Town’s motion, is insufficient to comply with the requirements of FOIL … . Matter of Meyer v Town of Hempstead, 2025 NY Slip Op 01930, Second Dept 4-2-25

Practice Point: Here the FOIL request credibly alleged that certain documents existed. The Town’s response that “upon information and belief” all documents had been provided was not sufficient. The statute requires the Town to claim a specific exemption or certify it does not possess or could not locate the requested documents. The dismissed petition was reinstated.

 

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THE QUESTION WHETHER THE MUNICIPALITY TIMELY RECEIVED ACTUAL NOTICE OF THE CLAIM IS MORE IMPORTANT THAN THE QUESTION WHETHER THERE IS A REASONABLE EXCUSE FOR MISSING THE 90-DAY DEADLINE; HERE THE PETITIONER DID NOT HAVE A REASONABLE EXCUSE BUT THE MUNICIPALITY DID RECEIVE TIMELY ACTUAL NOTICE; LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, noting that the absence of a reasonable excuse is not dispositive, determined petitioner should have been granted leave to file a late notice of claim against the New York City Housing Authority (NYCHA). Petitioner, a plumber, allegedly tripped over a piece of rebar protruding from the ground at a construction site:

Here, while the petitioner concedes that his claim of clerical error does not qualify as a reasonable excuse for his delay in serving a notice of claim, “the absence of a reasonable excuse is not, standing alone, fatal to the petitioner’s application” … .

While the lack of a reasonable excuse is not dispositive on an application for leave to serve a late notice of claim, “whether the municipality acquired timely actual knowledge of the essential facts constituting the claim is of great importance” … . Here, while there is no proof that the petitioner served the notice of claim upon NYCHA on January 27, 2020, NYCHA admits to receiving the first petition on or about January 31, 2020, less than three weeks after the expiration of the 90-day notice period. NYCHA additionally admits that it was able to schedule and conduct a General Municipal Law § 50-h hearing with the petitioner on April 20, 2020. Matter of Herry v New York City Hous. Auth., 2025 NY Slip Op 01928, Second Dept 4-2-25

Practice Point: In determining a request for leave to file a late notice of claim, whether the petitioner has a reasonable excuse for failing to file the notice of claim within 90 days is less important than whether the municipality timely received actual notice of the claim. Here the excuse was not valid but the municipality received timely notice. The request for leave to file a late notice should have been granted.

 

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THE PETITIONER WAS ENTITLED TO A HEARING ON WHETHER HIS ACKNOWLEDGMENT OF PATERNITY WAS BASED ON A MISREPRESENTATION BY MOTHER AND WHETHER PETITIONER IS ESTOPPED FROM DENYING PATERNITY BASED ON THE BEST INTERESTS OF THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined the petitioner was entitled to a hearing on the issues of whether petitioner’s (appellant’s) acknowledgment of paternity was procured by a misrepresentation by mother and, if so, whether the petitioner should be estopped from challenging the acknowledgment based on the best interests of the child. As is often the case in Family Court reversals, the failure to hold a hearing is the problem:

“Where . . . a party seeks to challenge an acknowledgment of paternity more than 60 days after its execution, Family Court Act § 516-a(b) requires the court to conduct a hearing to determine the issues of fraud, duress, or a material mistake of fact [in the execution of the acknowledgment of paternity] before ordering a [genetic marker test]” … . “In the event the court determines that a valid ground for vacatur of the acknowledgment exists, the issue of whether the petitioner should be estopped, in accordance with the child’s best interest, from vacating the acknowledgment of paternity, must [then also] be evaluated at a hearing” … . * * *

Here, the issue of the appellant’s paternity was not actually litigated in connection with the prior proceedings … . The Family Court’s findings … that the appellant, … would have been equitably estopped from seeking vacatur of the acknowledgment of paternity, were made without a hearing, during an appearance on the appellant’s petitions to modify custody and visitation, when, in response to the appellant raising the issue of his attempts to vacate the acknowledgment of paternity, the attorney for the child indicated that the child viewed the appellant as her father. Thus, contrary to the court’s determination, the doctrine of collateral estoppel is inapplicable … . Matter of Stephen B.J.B. v Marcia N.S.C., 2025 NY Slip Op 01921, Second Dept 4-2-25

Practice Point: The most frequent basis for Family Court reversals is the judge’s failure to hold a hearing before making a ruling.

 

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THE RESTITUTION ORDERED AS PART OF DEFENDANT’S SENTENCE AFTER THE SECOND TRIAL RAISED A PRESUMPTION OF VINDICTIVENESS; DEFENDANT ARGUED THE RESTITUTION WAS PUNISHMENT FOR WINNING THE APPEAL OF THE FIRST TRIAL; THE THIRD DEPARTMENT VACATED THE RESTITUTION; ALSO, THE MURDER SECOND DEGREE COUNTS WERE DISMISSED AS INCLUSORY CONCURRENT COUNTS OF MURDER FIRST DEGREE (THIRD DEPT).

The Third Department, vacating the restitution portion of the sentence, determined the presumption of vindictiveness had not been overcome. The defendant had won an appeal requiring a second trial. Defendant argued that the restitution in the amount of $139,231.87 ordered after the second trial was punishment for the successful appeal. The Third Department also dismissed the murder second degree counts a inclusory concurrent courts of murder first degree:

“[T]o insure that trial courts do not impose longer sentences to punish defendants for taking an appeal, a presumption of vindictiveness generally arises when defendants who have won appellate reversals are given greater sentences after their retrials than were imposed after their initial convictions” … . * * *

… [T]he imposition of restitution after retrial did result in an enhanced sentence following defendant’s successful appeal, and, as a result, the presumption of vindictiveness arose … . However, the court failed to engage in any on-the-record examination of the objective reasons why an enhanced sentence must be imposed, other than finding that it was not vindictive to order defendant “to make financially whole the representatives of his victims,” facts that indisputably existed at the time of the initial sentencing … . * * *

While we observe that County Court may have not actually been seeking to punish defendant for exercising his right to appeal when it imposed restitution, it was nevertheless the court’s obligation to overcome the presumption of vindictiveness by placing the reasons for the enhanced sentence on the record, and, based upon its failure to do so, we are constrained to vacate this portion of defendant’s sentence … . People v Powell, 2025 NY Slip Op 01839, Second Dept 3-27-25

Practice Point: Here ordering restitution as part of the sentence after the second trial raised a presumption that the restitution constituted “punishment” for defendant’s winning the appeal of the first trial. The sentencing court put nothing on the record to rebut the presumption of vindictiveness, so the restitution was vacated.

Practice Point: Here the murder second degree counts were dismissed as concurrent inclusory counts of murder first.

 

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FAMILY COURT LOST SUBJECT MATTER JURISDICTION AFTER THE NEGLECT PETITION WAS DISMISSED; THEREFORE THE COURT SHOULD NOT HAVE CONTINUED THE CHILD’S PLACEMENT IN FOSTER CARE (FIRST DEPT).

The First Department, reversing Family Court, in a full-fledged opinion by Justice Gesmer, determined Family Court lost subject matter jurisdiction after the neglect petition against mother was dismissed. Therefore the child’s placement in foster should not have been continued by the court. The First Department also noted that mother’s mental-health records from the period after the filing and after the dismissal of the neglect petition were improperly admitted:

We … find that Family Court lacked subject matter jurisdiction to continue R.C.’s foster care placement for the reasons articulated in Matter of Jamie J. (Michelle E.C.) (30 NY3d 275 [2017]), in which the Court of Appeals held that “Family Court’s jurisdiction terminates upon dismissal of the original neglect or abuse petition” … .

The “court’s lack of subject matter jurisdiction is not waivable, but may be raised at any stage of the action, and the court may . . . on its own motion . . . at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action” … .

Here, once the neglect petition against the mother was dismissed, Family Court lacked subject matter jurisdiction to continue the child’s temporary removal from the mother’s care and placement in foster care … . Accordingly, it should have immediately returned the child to the mother’s care and terminated the child’s foster care placement. It erred when it determined that it could hold permanency hearings based on the pending neglect petition against the putative father, since the child was not removed from his care, but from the mother’s. … Indeed, there is no evidence in the record that the child ever resided with the putative father and no indication that he ever sought custody of the child.

Furthermore, we find that the failure of Family Court to immediately return the child to the care of the mother after the dismissal of the neglect petition against her—as well as the subsequent protracted proceedings, including the dispositional hearing, which lasted nearly a year and a half—violated her due process rights … . Matter of R.C. (D.C.–R.R.), 2025 NY Slip Op 01859, First Dept 3-27-25

Practice Point: Here Family Court lost subject matter jurisdiction after the neglect petition against mother was dismissed and did not have the authority to continue the child’s placement in foster care.

Practice Point: The protracted proceedings after the dismissal of the neglect petition, during which the child remained in foster care, violated mother’s right to due process.

 

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FOIL REQUESTS FOR DOCUMENTS POSSESSED BY ANOTHER AGENCY AND FOIL REQUESTS WHICH REQUIRED THE CREATION OF A NEW DOCUMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined FOIL requests for documents in the possession of another agency and FOIL requests which require the creation of a new document should not have been granted:

The court improperly ordered DCAS [Department of Citywide Administrative Services] to produce information possessed by another agency, the Financial Information Systems Agency (FISA). FOIL does not require an agency “to prepare any record not possessed or maintained by” that agency (Public Officers Law § 89[3][a]). DCAS’s witness gave unrebutted testimony that several of the eight categories of requested information are maintained in a separate database by FISA, not DCAS. Accordingly, DCAS is “under no obligation to provide” that information … .

The court also improperly required DCAS to undergo a process that would constitute the creation of a new record … . DCAS’s witness provided testimony that compliance with the request would require a multi-step process involving writing requirements for searches and for extracting data from three databases, reviewing the data for accuracy and completeness, developing code to “convert” the raw “transactional” data into “time series” or “status” data, and then aggregating and otherwise cleaning up the information into a report. Her testimony was consistent with her affidavit describing the process and estimating that, while the discrete step of extracting the raw data from DCAS’s database would take only four hours, “the staff time required for the production of the requested reports” as a whole “is not less than 150 to 158 hours.”

This Court has held that a similar “transformation process” necessary to compile an analogous list of City employee information “would entail much more than a ‘simple manipulation of the computer . . . to transfer existing records'” and would therefore constitute the creation of a new record … . “[T]here is no fair interpretation of the [testimony] that can support” the court’s findings that the total process would take only four hours or that this case is distinguishable from our previous holding … . Matter of FDNY Local 2507, DC-37, AFSCME v City of New York, 2025 NY Slip Op 01867, First Dept 3-27-25

Practice Point: A FOIL request for a document which is in the possession of another agency need not be granted.

Practice Point: A FOIL request which requires an agency to create a new document is improper.

 

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MOTHER, WHO WAS REPRESENTING HERSELF IN THIS TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING, WAS DENIED DUE PROCESS BY THE JUDGE’S (1) COMMENCING THE HEARING WITHOUT HER, (2) SUBSEQUENTLY EXCLUDING HER FROM THE COURTROOM, (3) DENYING HER REQUEST FOR DOCUMENTS WHICH WERE IN EVIDENCE, (4) AND DENYING HER REQUEST FOR AN ADJOURNMENT TO CONSULT WITH HER LEGAL ADVISOR (SECOND DEPT). ​

The Second Department, reversing Family Court, determined mother, who was representing herself, was deprived of her right to due process in this termination of parental rights proceeding by “a confluence of factors:”

“A parent has a due process right to be present during proceedings to terminate parental rights”. Nonetheless, “[a] parent’s right to be present for fact-finding and dispositional hearings in proceedings to terminate parental rights is not absolute” … . “The child whose guardianship and custody is at stake also has a fundamental right to a prompt and permanent adjudication” … . “Thus, when faced with the unavoidable absence of a parent, a court must balance the respective rights and interests of both the parent and the child in determining whether to proceed” … .

Here … the mother was deprived of her due process right to be present in the proceedings seeking to terminate her parental rights. First, the Family Court determined to commence the hearing in the mother’s absence, even though she was proceeding pro se and had made representations to the court through her legal advisor that she had been directed to quarantine by her medical provider and was requesting an adjournment … . Notably, the record does not indicate that the mother had a history of failing to appear, nor did the court apparently rely on that factor in deciding to commence the hearing in the mother’s absence … .

Furthermore, when the hearing continued one week later, the Family Court improvidently exercised its discretion in denying the mother’s requests, among other things, for a copy of her own court-ordered psychiatric evaluation, which, at that point, was in evidence, and for additional time to obtain a court transcript and to consult with her legal advisor. Perhaps most significantly, the court abused its discretion in excluding the mother from the courtroom for the remainder of the hearing, without the issuance of a warning and with knowledge of the mother’s diagnoses contained in the psychiatric evaluation … . Thus, on both dates of the hearing, the mother was left without an advocate … . Matter of Justina C. M. J. (Chantilly J.), 2025 NY Slip Op 01805, Second Dept 3-26-25

Practice Point: Here mother was denied the right to be present in the termination-of-parental-rights proceeding, was denied access to evidence and her request for an adjournment to consult with her legal advisor was denied. Cumulatively mother was denied her right to due process.

 

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THE COMPLAINT SUFFICIENTLY ALLEGED FACTS THAT WOULD SUPPORT PIERCING THE CORPORATE VEIL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the cause of action alleging that the corporate veil should be pierced should not have been dismissed. The complaint alleged failure to adhere to LLC formalities, inadequate capitalization, commingling of assets, and the personal use of LLC funds:

“To survive a motion to dismiss the complaint, a party seeking to pierce the corporate veil must allege facts that, if proved, establish that the party against whom the doctrine is asserted (1) exercised complete domination over the corporation with respect to the transaction at issue, and (2) through such domination, abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against the plaintiff such that a court in equity will intervene” … . “Factors to be considered in determining whether an individual has abused the privilege of doing business in the corporate or LLC form include the failure to adhere to LLC formalities, inadequate capitalization, commingling of assets, and the personal use of LLC funds” … . “Additionally, the corporate veil will be pierced to achieve equity, even absent fraud, when a corporation has been so dominated by an individual or another corporation and its separate entity so ignored that it primarily transacts the dominator’s business instead of its own and can be called the other’s alter ego” … . “[A] fact-laden claim to pierce the corporate veil is unsuited for resolution on a pre-answer, pre-discovery motion to dismiss” … . Goldberg v KOSL Bldg. Group, LLC, 2025 NY Slip Op 01790, Second Dept 3-26-25

Practice Point: Here the allegations in the complaint that defendant failed to adhere to LLC formalities, inadequately capitalized the corporate entities, commingled assets, and personally used LLC funds sufficiently supported plaintiff’s seeking to pierce the corporate veil.

 

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THE JUDGE, IN RENDERING THE VERDICT, STATED THE DEFENDANT HAD NOT PROVEN HE WAS FRAMED AND THEREFORE WAS GUILTY; THAT SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT, REQUIRING A NEW TRIAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the court, in rendering its verdict, shifted the burden of proof to the defendant:

… Supreme Court, in rendering its verdict, impermissibly shifted the burden of proof to the defendant. The defendant asserted at trial that he had been framed by the police. In delivering its verdict, the court ruled that “the credible testimony before me does not persuade this Court beyond a reasonable doubt that [the] defendant was in fact framed. And that being so . . . I find [the] defendant guilty.” The court’s finding “reverses the constitutionally required principles that the defense bears no burden and that it is the prosecution that must introduce evidence sufficient to persuade the fact finder, beyond a reasonable doubt, of the defendant’s guilt” … . People v Steward, 2025 NY Slip Op 01825, Second Dept 3-26-25

Practice Point: Here the judge, in rendering the verdict, stated the defendant was found guilty because the defendant had not proven he was framed. Shifting the burden of proof to the defendant required reversal and a new trial.

 

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