You are here: / Appeals
,

TO DEFEAT A CPLR 3215(C) MOTION TO DISMISS AN ACTION AS ABANDONED, “SUFFICIENT CAUSE” FOR A DELAY IN MAKING A MOTION FOR A DEFAULT JUDGMENT MUST BE DEMONSTRATED, NOT THE CASE HERE; THE DISSENTERS ARGUED PARTICIPATION IN THE LITIGATION PROCEEDINGS WITH RESPECT TO OTHER PARTIES DEMONSTRATED THERE WAS NO INTENT TO ABANDON THE ACTION; THE MAJORITY REJECTED THE DISSENTERS’ ARGUMENT, IN PART BECAUSE IT WAS NOT RAISED BELOW (FIRST DEPT).

The First Department, reversing Supreme Court, determined the NYC Department of Housing Preservation and Development’s (HPD’s) motion to dismiss the action against it by defendant Cliffcrest as abandoned should have been granted. The two dissenters relied on an argument not raised in Supreme Court:

The motion court should have granted HPD’s motion to dismiss the action against it as abandoned under CPLR 3215(c) … . The record does not support a finding that Cliffcrest “[took] proceedings” for entry of a judgment within one year of HPD’s default within the meaning of CPLR 3215(c) and Cliffcrest fails to provide sufficient cause for the delay, as required by the rule. Cliffcrest waited over five years to seek a default judgment against HPD. None of the “proceedings” it cites — Cliffcrest’s responding to discovery requests, engaging in motion practice, and participating in settlement negotiations — was directed at, or pertinent to, the entry of a default judgment against HPD. Nor does Cliffcrest show that it took any relevant proceedings within one year after HPD defaulted.

The dissent relies on an argument not raised. Specifically, Cliffcrest does not contend that it demonstrated “sufficient cause . . . why the complaint should not be dismissed” (CPLR 3215[c]). Instead, Cliffcrest emphasizes that the proceedings demonstrated a lack of intent to abandon its claims. CPLR 3215(c)’s reference to “abandon[ment],” however, is merely descriptive of the statute’s purpose (see id. [“dismiss[al] of the complaint as abandoned”]). Cliffcrest’s general showing of lack of abandonment is therefore insufficient to prevent dismissal when not tethered to the “sufficient cause” provision as a source of authority. Otherwise, and as noted, Cliffcrest unpersuasively argues that the general litigation activities qualified as “proceedings for the entry of judgment” even though none of the proceedings identified occurred within one year of HPD’s default and none were directed at a default judgment’s entry. 938 St. Nicholas Ave. Lender LLC v 936-938 Cliffcrest Hous. Dev. Fund Corp., 2025 NY Slip Op 05052, First Dept 9-23-25

Practice Point: Consult this decision for a discussion of the evidence required to defeat a motion to dismiss an action as abandoned.

 

, ,

THE POLICE OFFICER’S WITNESSING THE EXCHANGE OF AN UNIDENTIFIED OBJECT PROVIDED PROBABLE CAUSE FOR A DRUG TRANSACTION ARREST; BECAUSE THE RECORD EVIDENCE SUPPORTED THE DENIAL OF SUPPRESSION, THE MIXED QUESTION OF LAW AND FACT WAS BEYOND FURTHER REVIEW BY THE COURT OF APPEALS (CT APP).

The Court of Appeals, affirming Supreme Court’s denial of the suppression motion, determined there was sufficient evidence in the record to support the motion court’s ruling. Therefore the mixed question of law and fact could not be reviewed further by the Court of Appeals. The issue was whether witnessing the exchange of an unidentified object provided probable cause to arrest for a drug transaction:​

The “factors relevant to assessing probable cause include the exchange of currency; whether the particular community has a high incidence of drug trafficking; the police officer’s experience and training in drug investigations; and any additional evidence of furtive . . . behavior on the part of the participants” … . Contrary to defendant’s contention, the absence of a “telltale sign” of a drug transaction is not fatal to a finding of probable cause. As we have explained, “a ‘telltale sign’ of narcotics strongly suggests an illicit drug transaction,” but it is not “an indispensable prerequisite to probable cause” … . Probable cause may also “be found on the basis of ‘indicia of a drug transaction’ known to ‘an experienced officer trained in the investigation and detection of narcotics,’ which include ‘handling an unidentified object in a manner typical of a drug sale'” … .

The testifying officer had formal training and experience in observing narcotics transactions, and he and his partners were stationed in an area known for drug-related activity. … [I]n the six months prior to defendant’s arrest, the testifying officer had made about ten narcotics-related arrests within two blocks of the motel. The officers also saw defendant “engage in [ ] behavior consistent with that of a narcotics seller” … , including nervous glancing, reaching into his waistband without looking down, and two separate interactions with the same woman, each involving an exchange of an object. Although the officers did not identify the object the woman acquired during the second interaction until after defendant’s arrest, the woman’s clenched fist and rapid departure indicated her desire to conceal it. People v Tapia, 2025 NY Slip Op 04940, CtApp 9-11-25

Practice Point: Where an appeal presents a mixed question of law and fact (here, whether there was probable cause for a drug transaction arrest based on the witnessed exchange of an unidentified object), the review by the Court of Appeals il limited to whether the motion court’s ruling has support in the record.​

 

, ,

THE VICTIM OF THE ASSAULT AND ATTEMPTED ROBBERY COULD NOT IDENTIFY THE DEFENDANT; THE VIDEO OF THE INCIDENT DIDN’T HELP; DEFENDANT WAS ARRESTED BECAUSE HE WAS DEPICTED IN SURVEILLANCE VIDEO NEAR THE SCENE WEARING DISTINCTIVE RIPPED AND PATCHED PANTS WHICH WERE NOT MENTIONED BY THE VICTIM OR DEPICTED IN THE INCIDENT VIDEO; THE ARREST WAS NOT SUPPORTED BY PROBABLE CAUSE; INDICTMENT DISMISSED AFTER GUILTY PLEA (FIRST DEPT).

The First Department, reversing defendant’s conviction by guilty plea and dismissing the indictment, in a full-fledged opinion by Justice Manzanet-Daniels, determined defendant was arrested in the absence of probable cause requiring suppression of seized evidence and defendant’s statements. Several arguments raised by the People on appeal were not considered because the arguments were not made below. Defendant was accused of assault and attempted robbery of a woman on the street.. The woman was unable to describe the assailant. Video of the incident did not help. Video near the scene depicted a man with distinctive ripped and patched pants, which led to the arrest of the defendant 10 days later. But there was no evidence the assailant was wearing the distinctive pants:

The detective obtained clearer video that depicted a male individual in distinctive ripped and patched pants near the scene and heading northbound, but that video did not capture the attack (nor any other incriminating behavior, for that matter). The detective concluded that the man in the distinctive pants was the perpetrator, apparently due to temporal and geographical proximity. Notably, when shown stills from the footage, the victim was still unable to recognize defendant as her assailant. The detective did not recollect the complainant stating that her assailant fled northbound; rather, the detective surmised the same from the surveillance videos. * * *

Because DHS arrested defendant without probable cause, all evidence flowing from the arrest, including defendant’s statements and the contents of the shoe box, was unlawfully obtained and must be suppressed … . The People are not entitled to a remand for further suppression proceedings, as they “had a full opportunity to present their case at the original hearing” and refrained from submitting alternative theories for denying suppression … .

Dismissal of the indictment is the appropriate remedy in this case. The People’s remaining evidence — namely, the surveillance videos showing the suspect in the area before and after the attack and Detective Hostetter’s “confirmatory” identification of defendant at the shelter — is not sufficient to establish a prima facie case if the People were to try defendant upon remand. The complainant could not provide a description of her assailant, the assailant is unidentifiable in the videos showing the attack, and defendant’s now-suppressed statements and pants were the only evidence connecting him to the crime scene … . People v Williams, 2025 NY Slip Op 04526, First Dept 7-31-25

Practice Point: Here defendant pled guilty but the indictment was dismissed because his arrest was not supported by probable cause.

Practice Point: If the People were given a full opportunity to present available evidence and to make legal arguments at the motion stage, evidence not presented and arguments not made there will not be considered on appeal.

 

, ,

EVEN WHERE DEFENDANT PLED GUILTY AND WAIVED APPEAL WITH THE UNDERSTANDING HE WILL NOT BE AFFORDED YOUTHFUL OFFENDER STATUS A MOTION TO VACATE THE SENTENCE BASED ON THE JUDGE’S FAILURE TO CONSIDER YOUTHFUL OFFENDER STATUS IS AVAILABLE (SECOND DEPT).

The Second Department, reversing Supreme Court and vacating defendant’s sentence, in a full-fledged opinion by Justice Wan, determined the sentencing judge’s failure to consider defendant’s youthful offender status can be raised in a motion to vacate the sentence, despite the failure to appeal the conviction on that ground. Here defendant pled guilty and waived appeal with the understanding that he would not be afforded youthful offender status:

In this appeal, we must consider whether a defendant who has failed to take a direct appeal from a judgment of conviction and sentence may, in the first instance, seek to set aside his or her sentence pursuant to CPL 440.20 on the ground that the Supreme Court failed to make a determination as to whether the defendant was eligible for youthful offender treatment. We hold that, under such circumstances, a defendant may seek to set aside his or her sentence pursuant to CPL 440.20. * * *

Here, as the People conceded in opposition to the defendant’s motion, the defendant was an “eligible youth” (see CPL 720.10). However, despite the defendant’s status as an “eligible youth,” the Supreme Court failed to make the required youthful offender determination at the sentencing proceeding. Since the court was required to make this determination on the record at sentencing, the court’s failure to follow this statutorily-mandated procedure rendered the defendant’s sentence invalid as a matter of law (see id. § 440.20[1] …). People v Steele, 2025 NY Slip Op 04494, Second Dept 7-30-25

Practice Point: Even where a defendant pleads guilty with the understanding he will not be afforded youthful offender status and waives appeal, the sentencing judge must consider affording defendant youthful offender status. The failure to appeal the conviction is not a bar to a motion to vacate the sentence on this ground.

 

, , ,

THE ZONING BOARD’S DENIAL OF A STREET FRONTAGE VARIANCE WAS NOT SUPPORTED BY SPECIFIC FACTUAL FINDINGS MAKING COURT-REVIEW IMPOSSIBLE; MATTER REMITTED TO THE BOARD (SECOND DEPT).

The Second Department, reversing Supreme Court and remitting the matter to the town Zoning Board of Appeals, determined the Board must set forth its reasons for denying a variance. Without specific factual support for the denial in the record, court review is impossible:

… [T]he Board failed to sufficiently set forth the specific factual support in the record, or the specific findings, upon which it relied in denying the requested street frontage variance … . Although at the hearing, certain Board members put on the record their individual grounds for denying a street frontage variance, the Board granted the request for an area variance for the same proposed lot, approving the three-lot subdivision. Thus, the record contains inconsistencies between the written determination and the hearing transcript with respect to the grounds for the Board’s determination.

When the Supreme Court, in effect, affirmed the Board’s denial of a street frontage variance, the court improperly “surmised or speculated as to how or why the board reached its determination” … . Accordingly, absent adequate grounds to support the challenged determination, the judgment must be reversed and the matter remitted to the Board so that it may set forth factual findings in proper form … . Matter of Mancuso v Zoning Bd. of Appeals of the Town of Mount Pleasant, 2025 NY Slip Op 04479, Second Dept 7-30-25

Practice Point: A Zoning Board of Appeals must support its ruling with a specific factual record to allow court review. If the record does not support the ruling, the court is forced to speculate. Here the matter was remitted to the Board to make factual findings.​

 

, , , ,

COUNTY COURT VIOLATED DEFENDANT’S RIGHT TO DUE PROCESS OF LAW BY FAILING TO NOTIFY DEFENDANT IT INTENDED TO ASSESS POINTS IN THE SORA RISK-LEVEL HEARING THAT WERE NOT RECOMMENDED BY THE BOARD OR PROPOSED BY THE PEOPLE; NEW HEARING ORDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing County Court and ordering a new SORA risk assessment hearing, determined County Court violated defendant’s right to due process of law by failing to notify defendant it intended to assess points that were not recommended by the Board of Examiners of Sex Offenders or proposed by the People. Although the defendant did not object to the assessment, the Fourth Department exercised its interest of justice jurisdiction and considered the appeal. People v Buckmaster, 2025 NY Slip Op 04378, Fourth Dept 7-25-25

Practice Point: Defendants are entitled to notice that the court intends to assess points in a SORA risk-level proceeding that were not recommended by the Board or proposed by the People. Failure to provide notice is a violation of due process.​

 

, , ,

THE JUDGE FAILED TO ADEQUATELY CONSIDER FATHER’S ARGUMENTS OPPOSING THE CHILD’S RELOCATION WITH MOTHER AND FAILED TO MAKE FINDINGS OF FACT IN SUPPORT OF THE AWARD OF SOLE CUSTODY TO MOTHER, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court in this modification of custody proceeding and remitting the matter, determined the judge failed to consider father’s arguments opposing relocation with the mother, and failed to make findings of fact to support awarding sole custody to mother:

… [T]he court failed “to consider and give appropriate weight to all of the factors that may be relevant to the determination” … . Although the court properly considered facts supporting the conclusion that the child would be better off economically and emotionally in Massachusetts given, among other things, the mother’s family support system there, it failed to consider or evaluate the father’s reasons for opposing the relocation. Specifically, the court did not consider the mother’s immigration status and the father’s concerns that the mother might try to remove the child from the country … . Indeed, the father testified that the mother still had connections to Morocco and had previously expressed a desire to move back there with the child. He also testified about an incident where the mother took the child’s passport from the father without his consent and in violation of the stipulated order. In short, the court failed to consider whether the father had “a good faith basis for opposing a requested move,” which “is a factor bearing on a relocation determination” … .

… [T]he court failed to make any factual findings to support the award of sole custody—both legal and physical—to the mother … . Effectively, the court awarded the mother sole custody of the child on the basis of its determination on the petition insofar as it sought permission to relocate the child. However, it is “well established that the court is obligated ‘to set forth those facts essential to its decision’ ” … . Here, the court did not make any findings with respect to the relevant factors that it considered in making a determination regarding the best interests of the child … . Crucially, as with its analysis on the issue of relocation, the court, in awarding the mother sole custody, did not consider the father’s stated concerns about the mother’s immigration status and whether she intended to remove the child from the country. “Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses” … . Matter of Eddaoudi v Obtenu, 2025 NY Slip Op 04430, Fourth Dept 7-25-25

Practice Point: Consult this decision for some insight into the findings an appellate court needs to consider an appeal in a modification of custody proceeding. A judge’s failure to consider a party’s argument and failure to make findings of fact in support of the award of custody renders an appellate review impossible.

 

, ,

DEFENDANT MOVED TO VACATE HIS CONVICTION ARGUING HIS ATTORNEY WAS INEFFECTIVE FOR WAIVING AN INTERPRETER; COUNTY COURT SHOULD HAVE HELD A HEARING ON THE MOTION; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing County Court, over a two-justice dissent. determined County Court should have held a hearing on defendant’s motion to vacate his conviction. Defendant argued defense attorney’s waiver of an interpreter constituted ineffective assistance. Defendant’s ineffective-assistance argument on direct appeal had been rejected, but the motion to vacate properly raised the waiver of an interpreter as a new issue:

We agree with defendant that County Court erred in its determination that defendant’s claim that he was denied effective assistance of counsel was procedurally barred pursuant to CPL 440.10 (2) (a) … . Although on direct appeal we rejected defendant’s contention that he was denied effective assistance of counsel … , we conclude that his present contentions are properly raised by way of a CPL 440.10 motion because they concern matters outside the record that was before us on his direct appeal … . Defendant’s motion contained sufficient evidence, including “sworn allegations . . by . . . defendant or by another person or persons” (CPL 440.30 [1] [a]), demonstrating that a hearing is necessary to determine whether trial counsel’s waiver of an interpreter for defendant adversely affected defendant’s right to meaningfully participate in his own defense … . Specifically, defendant submitted evidence that, although he was able to navigate conversational topics in English, he required the assistance of an interpreter when discussing more technical or esoteric topics and that he had in fact utilized the assistance of an interpreter at all but one court appearance prior to his trial counsel waiving such services for defendant just prior to trial. “Although the evidence in support of the motion does not ‘conclusively substantiate[ ] by unquestionable documentary proof’ that vacatur is required due to a violation of defendant’s right to [effective assistance of] counsel . . . , it is nonetheless suggestive of that fact” … . Defendant is therefore entitled to a hearing “on his entire claim of ineffective assistance of counsel inasmuch as such a claim constitutes a single, unified claim that must be assessed in totality” … . People v Anwar, 2025 NY Slip Op 04301, Fourth Dept 7-25-25

Practice Point: This decision gives some insight into when the court must conduct a hearing on a motion to vacate a conviction. The discussion is enriched by a two-justice dissent.

 

, , , ,

THE FIRST DEPARTMENT, AGREEING WITH THE SECOND, DETERMINED THE ADMINISTRATION FOR CHILDREN’S SERVICES (ACS) DOES NOT HAVE THE AUTHORITY TO SUPERVISE A NONRESPONDENT MOTHER WHO HAD BEEN ABUSED BY RESPONDENT FATHER IN THE CHILD’S PRESENCE; THE AUTHORITY TO SUPERVISE A NONRESPONDENT MOTHER IS ONLY TRIGGERED WHEN THE COURT ORDERS THE CHILD REMOVED FROM THE HOME, NOT THE CASE HERE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, considering the appeal as an exception to the mootness doctrine, determined the court did not have the authority under the Family Court Act to order the Administration for Children’s Services (ACS) to supervise a so-called “nonrespondent” mother who had been abused by respondent father in the presence of the 14-month-old child. By all accounts mother was “a good mother” and “very strong [and] hard-working.” Yet over the course of six months mother was subjected to 15 announced and unannounced home visits by an ACS caseworker who searched every room, the contents of the refrigerator, and inspected the child’s body:

As noted by the Sapphire W. Court [237 AD3d 41, Second Dept, 2-5-25] “in 2015, the Legislature enacted sweeping legislation that amended various statutes, including Family Court Act § 1017, in order to provide nonrespondent parents with greater participation in abuse or neglect proceedings, while also expand[ing] the options available to Family Court judges when craft[ing] appropriate orders respecting the rights of non-respondent parents [and] assuring the safety and well being of children who are the subjects of the proceedings . . . . Among other things, the legislation clarifie[d] the language of Family Court Act § 1017 by referring specifically to non-respondent parent, relative or suitable person as potential resources a court may consider after determining that a child must be removed from his or her home” … .

We agree with the sound reasoning in Matter of Sapphire W. and hold that Family Court Act §§ 1017 and 1027(d) do not permit supervision of a nonrespondent parent who has been caring for the child, in the absence of a court-ordered removal of the child. We further concur with the Second Department that, “[c]onsidering the intrusive and potentially traumatic impact of ACS involvement in a family’s life, the disproportionate involvement of Black and Hispanic children in the child welfare system cannot be ignored” … . Matter of R.A. (A.R.), 2025 NY Slip Op 04295, First Dept 7-24-25

Practice Point: The Administration for Children’s Services’ (ACS’) authority to supervise a nonrespondent mother who was abused by respondent father in the child’s presence is only triggered if and when the court orders the removal of the child from the home, not the case here. All agreed mother was “a good mother,” yet she was subjected to 15 announced and unannounced searches of her home and inspections of her child over the course of six months.

 

, , ,

EXCLUDING A SPECTATOR FROM THE TRIAL BECAUSE HE WAS SLEEPING DEPRIVED DEFENDANT OF HIS RIGHT TO A PUBLIC TRIAL; THE CONSTITUTIONAL ERROR IS NOT SUBJECT TO A HARMLESS ERROR ANALYSIS; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, ordering a new trial, determined the judge’s excluding a spectator from defendant’s trial violated the defendant’s right to a public trial. The spectator, apparently a friend of the defendant, had been asleep during the trial. He was excluded solely on that ground:

While trial courts have “inherent discretionary power to exclude members of the public from the courtroom” … , that discretion “must be exercised only when unusual circumstances necessitate it” … . “In sum, ‘an affirmative act by the trial court excluding persons from the courtroom’ without lawful justification constitutes a violation of the defendant’s right to a public trial” … . “A violation of the right to an open trial is not subject to harmless error analysis and a per se rule of reversal irrespective of prejudice is the only realistic means to implement this important constitutional guarantee” … .

Here, after the first day of testimony had concluded and jurors had been dismissed for the day, the Supreme Court excluded a spectator from the courtroom for sleeping, which the court noted was “disrespectful” and “distracting to the jurors.” The court told the spectator … he was “excluded from this courtroom for the rest of this trial” and was “not to return” to the courtroom. * * *

The record demonstrates that the Supreme Court did not sufficiently consider whether less drastic measures could have addressed the spectator’s behavior, such as warning the spectator or requesting that the spectator alter his demeanor in the courtroom … . The court’s statement the next day that the spectator was no longer excluded from the courtroom was insufficient to remedy the court’s error. People v White, 2025 NY Slip Op 04193, Second Dept 7-16-25

Practice Point: A judge has to have a good reason for excluding a spectator from a trial. The fact that the spectator had slept during the trial was not enough. Exclusion of spectators deprives a defendant of the constitutional right to a public trial.

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