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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 […]

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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 […]

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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. […]

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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 […]

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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 […]

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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 […]

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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: … […]

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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 […]

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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, […]

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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 […]

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