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ALTHOUGH CONTRACTING COVID-19 IS COMPENSABLE UNDER WORKERS’ COMPENSATION, HERE THE PROOF THAT CLAIMANT CONTRACTED COVID-19 BECAUSE OF WORKPLACE EXPOSURE WAS INSUFFICIENT (THIRD DEPT). ​

The Third Department, reversing the Workers’ Compensation Board, determined the record did not support the finding that claimant, a school custodian, contracted COVID-19 from workplace exposure. The decision is fact-specific. Claimant had little contact with students during his work hours and there were other possible sources of infection:

We acknowledge that “the contraction of COVID-19 in the workplace is compensable under the Workers’ Compensation Law” … , that the issue of whether a compensable accident has occurred is a question of fact for the Board to resolve and that the Board’s findings in this regard, if supported by substantial evidence, will not be disturbed … . Additionally, our case law makes clear that where, as here, the injured claimant alleges that he or she contracted COVID-19 at work, such claimant “bears the burden of demonstrating either a specific exposure to COVID-19 or that COVID-19 was so prevalent in the work environment as to present an elevated risk of exposure constituting an extraordinary event” … ; “for example, workers with significant contact with the public in communities with high rates of infection or workers in a workplace experiencing high rates of infection” … .

… Although claimant’s job included cleaning various areas of the school and picking up supplies, he acknowledged that his only contact with students would occur while he was mopping the hallways, at which time approximately 20 students would pass by him on their way to the locker rooms. During the relevant time frame, no other member of claimant’s household tested positive for COVID-19, but claimant’s then-spouse worked in-person and did the grocery shopping, her son attended sporting events three days each week and claimant attended church each week with approximately 40 other people. Claimant, who did not wear a mask during church services, testified that his fellow attendees “wouldn’t have been [sitting] that close” to one another. The record is silent as to the rate of infection in either the school where claimant worked or the surrounding community.

Upon reviewing the record as a whole, we cannot say that the Board’s decision is supported by substantial evidence. As a starting point, the record is devoid of proof that there was a high rate of infection present in claimant’s work environment at the relevant point in time … . Further, claimant’s brief encounters with a passing group of students in a corridor falls short of the degree of regular, consistent and close interaction with the public at large necessary to sustain a finding of prevalence … . Finally, the record reflects that either claimant or members of his household engaged in other in-person pursuits during the relevant time period. Under these circumstances, the Board’s finding that claimant’s employment exposed him to an elevated risk of exposure to COVID-19 cannot stand. Matter of Angelo (Southwestern Cent. Sch.), 2025 NY Slip Op 05998, Third Dept 10-30-25

Practice Point: Contracting COVID-19 is compensable under Workers’ Compensation but claimant must present proof exposure at the workplace was the source of the infection, not the case here.​

 

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THE DIVISION OF CRIMINAL JUSTICE SERVICES’ (DCJS’S) DETERMINATION THAT PETITIONER POLICE OFFICER WAS TERMINATED “FOR CAUSE” WAS CONTRADICTED BY THE FACTS; THE DETERMINATION WAS REVERSED AS “ARBITRARY AND CAPRICIOUS” (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, held the Division of Criminal Justice Services’ (DCJS’s) determination that petitioner police officer was terminated “for cause,” in the face of a consent order and evidence demonstrating petitioner resigned, was arbitrary and capricious.  The opinion is fact-specific and cannot be fairly summarized here:​

In its brief on appeal, DCJS states that it “interprets this regulation as requiring a causal nexus between the allegations of misconduct and the officer’s subsequent separation from service.” Although that is a facially rational interpretation of the regulation, DCJS’ determination that that is what occurred here lacks a sound basis in reason and disregards the facts … . Indeed, during the review process, DCJS had before it a copy of the consent award, which clearly stated that petitioner would be reinstated in good standing upon serving his suspension. Although the Police Chief claimed that petitioner never returned to work after the suspension period was over, petitioner submitted documentary evidence demonstrating the inaccuracy of that representation. Moreover, DCJS knew that the Police Chief had characterized petitioner’s separation from employment as a “standard resignation” … and that the consent award did not contain any provision precluding petitioner from seeking employment with the Schenectady County Sheriff’s Department, thereby raising a question as to the sincerity of the Police Chief’s representation [to that effect], as well as his subsequent “for cause” report. In these circumstances, it should have been clear to DCJS that the misconduct allegations were fully resolved upon petitioner serving his suspension and, therefore, the Police Chief’s subsequent reporting that petitioner resigned “in connection with allegations of misconduct” was materially inaccurate. Matter of Ferretti v New York State Div. of Criminal Justice Servs., 2025 NY Slip Op 06000, Third Dept 10-30-25

Practice Point: Consult this opinion for insight into when an administrative agency’s determination will be found “arbitrary and capricious.” Here the agency relied on representations by a police chief which were contradicted by the facts.

 

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THE REFEREE’S REPORT WAS BASED UPON BUSINESS RECORDS WHICH WERE NOT PRODUCED; PROOF OF DEFENDANT’S DEFAULT WAS BASED UPON BUSINESS RECORDS FOR WHICH NO FOUNDATION WAS LAID; THE MOTION TO CONFIRM THE REFEREE’S REPORT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because the report was based upon business records which were not produced. In addition defendant’s default was based upon records for which no foundation was laid:

“The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the record has clearly defined the issues and resolved matters of credibility” … . “However, computations based on the review of unidentified and unproduced business records . . . constitute[ ] inadmissible hearsay and lack[ ] probative value” … .

Here, the referee’s report was improperly premised upon unproduced business records.

… [P]laintiff’s submissions reflected that Chase was not the loan servicer at the time of the default, which allegedly occurred in 2008. Since Chase’s employee, Brunton, did not state that the records of any other relevant entity, such as a prior loan servicer or the plaintiff, were provided to Chase and incorporated into Chase’s own records, that Chase routinely relied upon such records in its business, or that he had personal knowledge of the business practices and procedures of any other relevant entity, Brunton failed to lay a proper foundation for the admission of any records reflecting the defendant’s alleged default in 2008 … . Citimortgage, Inc. v Hassanin, 2025 NY Slip Op 05935, Second Dept 10-29-25

Practice Point: Consult this decision for insight into the proof necessary to confirm a referee’s report in a foreclosure action, as well as the necessary foundation for business records created by a prior loan servicer.

 

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THE PROCESS SERVER KNEW WHERE DEFENDANT LIVED AND WORKED AND MADE SEVERAL UNSUCCESSFUL ATTEMPTS TO SERVE DEFENDANT AT HOME; WITHOUT MAKING ANY ATTEMPT TO SERVE DEFENDANT AT WORK, THE PROCESS SERVER RESORTED TO “NAIL AND MAIL;” THE PROCESS SERVER DID NOT DEMONTRATE “DUE DILIGENCE;” THE COURT NEVER ACQUIRED PERSONAL JURISDICTION OVER DEFENDANT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the process server did not demonstrate due diligence in attempting to serve defendant, therefore the court did not acquire personal jurisdiction:

“Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308” … . “Service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) and (2) cannot be made with due diligence” … . “The term due diligence is not defined by statute, and is interpreted on a case-by-case basis” … . To satisfy the “due diligence” requirement, the plaintiff must demonstrate that the process server made genuine inquiries about the defendant’s whereabouts and place of employment … . “The failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void” … .

… [T]he process server’s prior attempts at service did not demonstrate due diligence. Two out of three of the process server’s prior attempts at personal delivery at the defendant’s residence occurred during weekday hours when it could reasonably have been expected that the defendant was either working or in transit to or from work. The prior attempts were made on Thursday, April 17, 2008, at 6:15 p.m.; on Saturday, April 19, 2008, at 1:30 p.m.; and on Monday, April 21, 2008, at 8:20 a.m. The Saturday attempt occurred at a time when the defendant may have had reasons not to be home. The process server averred that a neighbor confirmed that the defendant resided at that address, but gave a negative reply when asked if the neighbor was aware of the defendant’s normal routine and place of business. Attached to the affidavit of service were the results of a “people at work” search, which revealed a company address for the defendant. Yet the process server made no inquiries about the defendant at that address before resorting to affix and mail service. Under the circumstances, the plaintiff failed to act with due diligence before relying on affix and mail service pursuant to CPLR 308(4) … . Bank of N.Y. Mellon v DeFilippo, 2025 NY Slip Op 05933, Second Dept 10-29-25

Practice Point: Consult this decision for insight into what constitutes “due diligence” in attempting to serve a defendant. Here several failed attempts at defendant’s residence was not enough. The process server did not attempt to serve defendant at work before resorting to “nail and mail.”​

 

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DEFENDANT DID NOT ADMIT HE INTENDED TO COMMIT A CRIME IN THE BUILDING HE ENTERED AND REMAINED UNLAWFULLY; THEREFORE THE PLEA ALLOCUTION DID NOT ESTABLISH THE ELEMENTS OF ATTEMPTED BURGLARY; DEFENDANT’S VIOLATION OF A STAY-AWAY ORDER IS NOT ENOUGH; PLEA VACATED (FIRST DEPT).

The First Department, vacating defendant’s plea to attempted burglary, determined defendant’s plea allocution negated an essential element of the offense, thereby calling into question the voluntariness of the plea: Burglary requires the intent to commit a crime while unlawfully entering or remaining in a building. Defendant did not admit he intended to commit a crime in the building. The fact that he violated a stay-away order by entering the building was not sufficient:

During the plea allocution the court asked defendant if it was true that he knowingly entered and remained unlawfully at the premises, which is a dwelling, and attempted to commit a crime inside. Defendant responded, “That wasn’t my intent, but I did remain unlawfully.” Defense counsel then stated “Yes, there was a protective order which he violated.” The court then asked defendant, “That was with the intent to violate the order of protection, is that right”? Defendant responded, “Yes.”

A key element of burglary is establishing the defendant’s intent in entering or remaining unlawfully in a building to commit a crime therein … . The violation of a stay-away provision in an order of protection, alone, cannot, without more, be used to establish the requisite state of mind to elevate criminal trespass to a burglary … .

Once defendant denied his intent to commit a crime within the premises, the court was required to inquire further to ensure that defendant’s guilty plea was, in fact, knowing and voluntary … . As the People concede, given that the court failed to inquire and improperly accepted the guilty plea, the plea must be vacated … . People v Gee, 2025 NY Slip Op 05924, First Dept 10-28-25

Practice Point: To constitute burglary, the defendant must intend to commit a crime when entering or remaining in a building. It is not enough that, by entering the building, the defendant violated a stay-away order. The defendant must have intended to commit a crime in the building.

 

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THE DEFENSE WAS TIMELY PROVIDED WITH IMPEACHMENT INFORMATION REGARDING AN ARRESTING OFFICER; THE FACT THAT AN ADDITIONAL DOCUMENT WITH THAT INFORMATION WAS PROVIDED AFTER THE CERTIFICATE OF COMPLIANCE (COC) WAS FILED, DID NOT RENDER THE PROSECUTION UNTIMELY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a two-judge dissent, determined the prosecution’s failure to turn over an Internal Affairs Bureau (IAB) report which was relevant to the credibility of one of the arresting officers (Congedo) before the filing of the certificate of compliance (COC) with the discovery timetable did not render the prosecution untimely. The opinion is fact-specific. The prosecution had timely alerted the defense to a federal lawsuit based on the alleged misbehavior of the arresting officer described in the IAB report. The majority concluded the allegations in the lawsuit constituted timely notice of the relevant information in the IAB report. The dissent disagreed because the report included information not referenced in the federal lawsuit:

… CPL 245.20 (1) (k) (iv) does not require production of a document just because it provides additional information not in other impeachment material. The question instead is whether the document “tends to . . . impeach the credibility of a testifying prosecution witness” …  Here, the IAB report does not. Our conclusion is not based on any prejudice analysis, but on application of the relevant statutory language. * * *

Because the IAB report did not contain any separate allegations of misconduct against Congedo nor any support for the amended complaint’s allegations as they pertained to Congedo, it did not have any “tend[ency] to . . . impeach” her credibility (CPL 245.20 [1] [k] [iv]). …

… [T]he IAB report itself has no impeachment value. This is not a prejudice consideration … . Rather, CPL 245.20 (1) (k) (iv)’s “tends to . . . impeach” standard inserts considerations of evidentiary value into the disclosure requirement itself. Nothing in CPL 245.20 (1) (k) (iv) additionally requires the People to disclose every single document referencing impeachment material subject to disclosure based solely on that reference. People v Fuentes, 2025 NY Slip Op 05872, CtApp 10-23-25

Practice Point: Re: discovery of information which may be used to impeach an arresting officer, the prosecution is not required to turn over every document which references the impeachment material. Here the defense was given timely notice of a federal lawsuit which included the impeachment material. The fact that a report which referenced the impeachment material was not turned over to the defense until after the certificate of compliance (COC) was filed did not invalidate the COC.

 

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AFTER BREAKING UP A FIGHT BETWEEN TWO MEN ON THE STREET AND HANDCUFFING THEM, THE POLICE QUESTIONED DEFENDANT WITHOUT GIVING THE MIRANDA WARNINGS; DEFENDANT’S ADMISSION HE HAD PUNCHED THE VICTIM SHOULD HAVE BEEN SUPPRESSED; THE ERROR WAS HARMLESS HOWEVER (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, determined defendant was subjected to custodial interrogation when he was questioned on the street after he was handcuffed. Because the Miranda warnings were not given, defendant’s admission to punching the victim should have been suppressed. However the error was harmless in light of the other evidence, including a video. The police approached defendant and the victim, who were fighting, on the street. Both men were handcuffed and then questioned:

… [I]t is not dispositive that defendant was questioned in the immediate aftermath of the altercation, while the officers were still determining whether a crime had occurred—circumstances Supreme Court seemingly relied on in deeming the encounter a “classic case of investigatory questioning” that did not require Miranda warnings. Our case law draws no categorical distinction between interrogation and so-called investigatory questioning. Interrogation is almost definitionally investigatory in nature. And while we have recognized a “distinction between coercive interrogation and permissible street inquiry” … , the most salient difference between these categories is not when the questioning takes place, but the presence or absence of custody … . As we have explained, “routine police investigation of suspicious conduct on the street generally does not entail a significant deprivation of freedom which would require Miranda warnings” … . Absent “both the elements of police ‘custody’ and police ‘interrogation,’ ” there is no “constitutional requirement that the police recite interrogation warnings when they direct questions or comments at members of the public or solicit information and assistance” … . But where, as here, investigatory questions are directed to a person who is in custody, under circumstances police should know are likely to yield an incriminating response, Miranda warnings are required. People v Robinson, 2025 NY Slip Op 05871, CtApp 10-23-25

Practice Point: Here the police broke up a street fight, handcuffed both men, and then questioned them. Even though the police were still investigating what happened when defendant was questioned, defendant was “in custody” and was being “interrogated,” mandating the Miranda warnings.

 

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THE PROOF OF ALL THE CHARGES, INCLUDING THE DEPRAVED INDIFFERENCE MURDER OF A TWO-YEAR-OLD CHILD, WAS SUFFICIENT TO SUPPORT THE CONVICTIONS; HOWEVER THE IMPROPER ADMISSION OF MOLINEUX EVIDENCE AND OTHER EVIDENTIARY ERRORS DEPRIVED DEFENDANT OF A FAIR TRIAL; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing the conviction and ordering a new trial, determined that the proof was sufficient to support all the convictions, including depraved indifference murder of a two-year-old child. Defendant claimed the child fell from a bunk bed. But the injuries were catastrophic and included a depressed skull fracture. A new trial was required because of evidentiary errors by the judge, including the admission of prior crimes and bad acts as Molineux evidence:​

Prior to trial, County Court partially granted the People’s Molineux application to the extent of allowing testimony pertaining to defendant’s prior acts of domestic violence and aggression toward the mother, as well as his 2011 conviction of aggravated driving while intoxicated (hereinafter DWI) with a minor in the car. … The People elicited trial testimony from the mother about a December 2017 incident in which defendant became explosively angry while drinking and “trash[ed]” her house; however, “[n]othing was physical” on that occasion. The mother also testified about a January 2018 incident in which defendant was physically violent, revealing that he had repeatedly punched her in the face and in the arm on that occasion. The People were allowed to introduce photographs of the bruises the mother sustained during the January 2018 incident. The evidence regarding defendant’s DWI conviction was referenced during his interview at the Sheriff’s Department in connection with the underlying incident, which was published to the jury.

The December 2017 incident of aggression did not involve physical violence, as alleged here, and was not probative of any issue in this case … . … [T]he photographs depicting the mother’s injuries from the January 2018 incident should not have been admitted into evidence, as they provided the ]jury with a visualization of defendant’s past violent conduct and were extremely prejudicial in the context of a prosecution requiring proof that defendant acted with a level of depravity sufficient to sustain a conviction under Penal Law § 125.25 (4) … . … The evidence pertaining to defendant’s 2011 DWI conviction also should not have been admitted, as it was not probative of any issue in the case, did not fit within any recognized Molineux exception, and was unduly prejudicial since it involved a different child and tended to suggest to the jury that defendant was previously reckless with a minor in his care while consuming alcohol. Since the proof of defendant’s guilt was entirely circumstantial and was not overwhelming, these improper Molineux rulings cannot be considered harmless … . People v Bohn, 2025 NY Slip Op 05846, Third Dept 10-23-25

Practice Point: Consult this decision for insight into what is and what is not admissible prior crime and bad-act (Molineux) evidence in a murder trial.

 

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THE PEOPLE’S FAILURE TO TURN OVER TO THE DEFENSE A VIDEO CONTAINING IMPEACHMENT MATERIAL PRIOR TO FILING A CERTIFICATE OF COMPLIANCE RENDERED THE CERTIFICATE OF COMPLIANCE AND THE STATEMENT OF READINESS ILLUSORY; INDICTMENT DISMISSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and dismissing the indictment on speedy trial grounds, in a full-fledged opinion by Justice Pritzker, determined the People were required to turn over a child advocacy center (CAC) video before filing a certificate of compliance (COC) and statement of readiness (SOR). The CAC video was not turned over until 20 days before trial:

… [T]he People conceded that the CAC video contained impeachment evidence based upon certain statements made by the victim … , and also that the CAC video had been turned over by the CAC to law enforcement and, as such, was in the People’s possession as of January 22, 2020 … . Despite this, the CAC video was not turned over to defendant until September 1, 2021, 20 days before trial, even though the People filed an earlier COC and SOR in October 2020. Specifically, the COC dated October 16, 2020 referenced an index detailing the materials that had been disclosed to defendant as of that date. This index reveals two compliance reports, one dated February 28, 2020 and the other dated October 1, 2020. As relevant here, the February 28, 2020 compliance report lists a document titled “CAC Chain of Custody – 01.22.2020.pdf” as having been turned over to defendant. There is no dispute that, while this chain of custody form for the CAC video was included in discovery, the video itself was not. * * *

… [H]ere, we are faced with a situation where the People certified, allegedly in good faith, that “the prosecutor has disclosed and made available all known material and information subject to discovery” … , despite knowing full well that they were intentionally withholding the CAC video. As such, we find that the People did not file the October 2020 COC in good faith as they did not make “all known material and information subject to discovery” available to defendant … . Further compounding their error, the People did not give defendant any notice of this withholding, either by withholding the CAC video and requesting a protective order … in the first instance, or, later, giving defendant notice that the CAC video was purportedly being withheld so as not to disclose any identifying information of the victim … . … [B]ecause we find that the October 2020 COC and SOR were illusory, the People did not validly announce readiness for trial until September 2021, which the People concede would be outside of the applicable six-month CPL 30.30 time frame. Thus, this Court must dismiss the indictment … . People v Mazelie, 2025 NY Slip Op 05849, Third Dept 10-23-25

Practice Point: Here the People’s failure to turn over impeachment evidence before filing the certificate of compliance rendered the certificate illusory and required dismissal of the indictment.

 

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IT WAS AN ABUSE OF DISCRETION TO RETURN THE CHILD TO MOTHER DURING THE PENDENCY OF NEGLECT PROCEEDINGS; MOTHER HAD INJURED THE CHILD AND THERE WAS INSUFFICIENT EVIDENCE THE IMPOSITION OF CONDITIONS FOR THE CHILD’S RETURN WILL ENSURE THE CHILD’S SAFETY (FIRST DEPT).

The First Department, reversing Family Court, determined mother’s application during the neglect proceedings for the return of her child should have been denied:

Family Court’s finding that the child should be returned to the mother lacked a sound and substantial basis in the record … .  Although the court properly determined, based on the evidence of the child’s physical injuries and her statements, that the mother was the person who inflicted the injuries, it was an improvident exercise of discretion to determine that the risk of harm could be mitigated by the conditions it imposed on the mother in the order under review … .

The court improvidently minimized both the nature and extent of the risk to the child and overstated the potential impact of its order on the child’s safety. Nothing in the mother’s testimony indicated that she understood the emotional harm she caused the child or expressed any genuine remorse over her actions. Initially, she tried to attribute the child’s injuries to an unrelated incident that took place several months earlier. She then claimed to be unaware of how the injuries occurred and ultimately opted to “plead the fifth.” Taken as a whole, the mother’s testimony reflects a lack of insight into how her conduct led to the child’s removal from her care. This lack of understanding further undercuts Family Court’s conclusion that services would be sufficient to mitigate the risk of harm posed to the child while in the mother’s care, and its belief that the mother would comply with the service plan. Although the mother took steps to enroll in services, the mere enrollment is insufficient to overcome the substantial evidence indicating that returning the child to her care would pose a risk to the child’s health and safety. Matter of M.M. (Chelsea B.), 2025 NY Slip Op 05887, First Dept 10-23-25

Practice Point: Here Family Court’s determination that imposing conditions for the child’s return to mother, who had injured the child, would ensure the child’s safety was not supported by the evidence. Therefore it was an abuse of discretion to order the child’s return to mother during the pendency of the neglect proceedings.​

 

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