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DEFENDANT’S SHOWING A HANDGUN TO HER EX-BOYFRIEND DID NOT CONSTITUTE “DISPLAYING” THE WEAPON IN FURTHERANCE OF THE OFFENSE; THEREFORE THERE WAS NO IMPEDIMENT TO REMOVING THE SEVENTEEN-YEAR-OLD DEFENDANT’S “CRIMINAL POSSESSION OF A WEAPON” CASE TO FAMILY COURT (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Nowak, over an extensive dissent, determined the seventeen-year-old defendant’s showing her ex-boyfriend a handgun she had on her person dis not amount to “displaying” the weapon such that the case could not be removed to Family Court:

… [D]efendant was charged with a violent felony (see Penal Law § 70.02 [1] [b]), and thus the People could prevent removal to Family Court without a formal motion under one of the CPL 722.23 (2) (c) exceptions, i.e., as relevant here, that defendant “displayed a firearm, shotgun, rifle or deadly weapon as defined in the penal law in furtherance of [the charged] offense[s]” (CPL 722.23 [2] [c] [ii]; see Penal Law §§ 265.02 [3]; 265.03 [3]). * * *

… [D]efendant did not “further” her possession of the weapon merely by displaying it to her ex-boyfriend, even if she did so to emphasize her control of the handgun … .Every display of a handgun emphasizes control by the person possessing it, and thus every display would always further the charged offense. So too with the dissent’s proposed construction. Every display of a weapon provides evidence of possession—it is not possible to display the weapon without possessing it—and thus there would always be a “logical nexus” between a display and the possessory offense … . Either reading would effectively render meaningless the separate statutory requirement that the display “further[ ]” the charged offense (CPL 722.23 [2] [c] [ii]). Had the legislature wished to do so, it could have required that the People demonstrate only that the adolescent offender “displayed” a designated weapon, and stopped there, without also requiring that the offender did so “in furtherance of” the charged offense (CPL 722.23 [2] [c] [ii]). That language must be given effect and interpreted to require something more than merely displaying the weapon … . People v Neyshaliz M. V., 2026 NY Slip Op 04581, Fourth Dept 7-24-26

Practice Point: Consult this opinion for a discussion of what it means to “display” a weapon “in furtherance” of the charged offense (criminal possession of a weapon). Merely showing the weapon to defendant’s ex-boyfriend did not amount to displaying the weapon in furtherance of the offense.

 

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THE PARTIES IN THIS DIVORCE PROCEEDING ENTERED A LITIGATION FUNDING AGREEMENT IN WHICH DEFENDANT ADVANCED FUNDS TO PLAINTIFF IN RETURN FOR THE ASSIGNMENT OF PROCEEDS FROM THE DIVORCE CLAIM; DESPITE THE INCLUSION OF THE TERM “THIS IS NOT A LOAN” IN THE AGREEMENT, THE FIRST DEPARTMENT HELD THE AGREEMENT WAS IN FACT AN INVALID LOAN AT A USURIOUS 18.96% ANNUAL INTEREST RATE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Michael, reversing (modifying) Supreme Court, determined the parties’ divorce-litigation funding agreement was a usurious loan, not an investment, and was therefore void and unenforceable:

The parties entered into a Purchase and Sale Agreement, dated May 23, 2018 (the PSA), wherein defendant agreed to advance approximately$200,000 to plaintiff to fund the legal costs of plaintiff’s pending divorce action. In return, plaintiff agreed to assign to defendant his right to receive any proceeds from the divorce claim up to the amount owed to defendant under the PSA. The “Proceeds” consisted of “the total recovery from the Claim” and the “Claim” was defined as plaintiff’s right, title, and interest in and to any amount granted to plaintiff in connection with his pending divorce action, any appeal or settlement with respect thereto, and any related action. * * *

The PSA clarified that “THIS IS NOT A LOAN” and was expressly contingent on plaintiff’s “successful” recovery on the Claim. It proclaimed that “[i]f there is no recovery on the Claim, nothing will be owed to [defendant].” Yet, several provisions of the PSA together with the Sweetheart Guaranty … , entitled defendant to recoup the money it advanced plus interest even if “there is no recovery on the Claim,” such as in the event of plaintiff’s death or reconciliation with his wife. * * *

Considering the totality of the circumstances … , we find that the parties’ PSA was in fact a loan. The only remaining question is whether the loan was usurious. A loan is usurious if the interest exceeds the maximum legal rate of 16% (see General Obligations Law § 5-501[1], [2]; Banking Law § 14-a[1]). It is undisputed that under the PSA, interest accrued at 18.96% annually, which exceeds the legal limit. Denemark v New Ch. Capital, Inc., 2026 NY Slip Op 04553, First Dept 7-23-26

Practice Point: Consult this opinion for insight into when an agreement constitutes a “loan” subject to the usury law rather than an “investment.”

 

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FAMILY COURT DID NOT HAVE JURISDICTION TO CONDUCT A “BEST INTERESTS OF THE CHILD” HEARING WHERE THE AUTHORIZED ADOPTION AGENCY WITHDREW ITS CONSENT TO THE ADOPTION; THE SECOND DEPARTMENT ASKED THE LEGISLATURE TO ADDRESS THIS STATUTORY PROBLEM (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wooten, was constrained to find that the court did not have jurisdiction to conduct a “best interests of the child” hearing where the authorized adoption agency withdrew its consent to the adoption. The Second Department explained that the current statutory scheme places an authorized adoption agency in the role typically performed by Family Court and requested that the Legislature address the problem:

The primary issue presented by this appeal is whether a court reviewing an adoption proceeding has jurisdiction to entertain a hearing to determine the best interests of a child where an authorized agency with custody of the child has withdrawn or withheld its consent to the adoption petition. We are constrained by the statutory scheme for adoptions from an authorized agency to answer that question in the negative. However, the circumstances underlying this proceeding highlight the potential conflict between the governing statutory law and the paramount concerns of the best interests of the child and achieving permanency. We therefore take this occasion to ask the New York State Legislature to consider whether changes are needed to ensure the best interests of children placed in the custody of authorized agencies for the purpose of adoption. * * *

… [B]efore a best interests hearing was conducted, the proposed adoptive father withdrew the adoption petition insofar as asserted by him on the ground that he was no longer seeking to jointly adopt the child with the appellant. The proposed adoptive father’s withdrawal of the joint adoption petition insofar as asserted by him was precipitated by the biological parents’ decision to support adoption of the child by the proposed adoptive father alone.

,,, [T]he agency withdrew its consent to the joint adoption of the child by the proposed adoptive parents on the ground that the proposed adoptive father “is no longer petitioning the Court to adopt jointly with [the appellant].” The agency then moved to dismiss the adoption petition on the ground that the Family Court lacked jurisdiction to entertain the adoption petition due to the agency’s withdrawal of its consent to the joint adoption. In support of the motion, the agency argued that dismissal of the adoption petition was mandated, without a best interests hearing, since the agency had lawful custody of the child and, therefore, its consent to the adoption was required pursuant to Domestic Relations Law § 111. Matter of Aurora A. (Leigh A.–Giuseppe A.), 2026 NY Slip Op 04500, Second Dept 7-22-26

 

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THE REFEREE DID NOT HAVE JURISDICTION TO DISMISS THE FAMILY OFFENSE PETITION; NEITHER MOTHER NOR THE RESPONDENT HUSBAND (WHO DID NOT APPEAR) CONSENTED TO THE REFEREE’S HEARING THE MATTER; THE POWERS OF A REFEREE ARE EXPLAINED (FOURTH DEPT).

The Fourth Department, reversal the order by the referee dismissing the family offense proceeding, determined the referee was without jurisdiction to decide the matter because neither mother nor respondent husband (who did not appear) consented the referee hearing the matter:

“A referee derives authority from an order of reference by the court (see CPLR 4311), which can be made only upon consent of the parties, except in limited circumstances” … . “Absent the parties’ consent to the reference, the . . . [r]eferee ha[s] the power only to hear and report [their] findings” … . An appropriate order of reference is thus an “essential jurisdictional predicate” to the authority of the referee to act … , and a referee “who attempts to determine matters not referred to [them] by the order of reference acts beyond and in excess of [their] jurisdiction” … .

Here, as noted, petitioner never consented to the Referee hearing the matter. Although CPLR 4317 (b) permits a referee to hear and determine an issue without the consent of the parties where the trial of the issue “will require the examination of a long account,” where the issue is one “of damages separately triable and not requiring a trial by jury,” or “where otherwise authorized by law,” none of those exceptions to the consent requirement applies here. Thus, the Referee “lacked jurisdiction to dismiss the petition” … , even without prejudice. We note in any event that, absent a fact-finding hearing, which did not take place, the Referee had no grounds to dismiss the petition based on insufficient evidence. Matter of Fournier v Perez, 2026 NY Slip Op 04063, Fourth Dept 6-26-26

Practice Point: Consult this decision for a concise explanation of the powers of a Family Court referee.

 

A RARE SITUATION WHERE SUSPENSION OF THE NONCUSTODIAL PARENT’S CHILD SUPPORT OBLIGATION WAS WARRANTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, over an extensive dissent, affirmed Supreme Court’s denial of mother’s motion for pendente lite child support in the amount of $25,000/month and $10,000/month travel allowance. It was determined mother deliberately and actively alienated the child from the father:

Based on clear and convincing evidence presented at the 35-day custody trial, the court determined that the mother had deliberately and actively alienated the child from the father in “one of the most clear-cut and disturbing examples of parental alienation that this court has observed through thousands of custody cases over many years.” Accordingly, the court reasonably determined that this is one of the unfortunate and rare situations where suspension of the noncustodial parent’s child support obligation was warranted. Specifically, the court decided the pendente lite motion by directing the father to pay 90% of the child’s unreimbursed medical and mental health expenses and otherwise suspended the father’s child support obligation until the child’s visitation with the father was “meaningfully resumed” or “there is otherwise good cause to resume the support” … . * * *

As the motion court found, the child’s reasonable and appropriate needs are being met … . It is undisputed that the mother and child continue to reside in a 1,500 square foot luxury apartment with views of Central Park and that the father continues to pay all of the child’s expenses for private school, extracurricular activities and tutoring, in addition to 90% of her unreimbursed medical and mental health expenses. Rosenfeld v Rosenfeld, 2026 NY Slip Op 04048, First Dept 6-25-26

 

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MOTHER’S BEHAVIOR DID NOT AMOUNT TO A FORFEITURE OF HER RIGHT TO COUNSEL IN THIS VISITATION PROCEEDING (THIRD DEPT).

The Third Department, reversing the order of Family Court in this visitation proceeding, determined mother was denied her right to counsel. After attempts to assign counsel failed, the judge essentially forced mother to proceed without an attorney:

Pursuant to Family Ct Act § 262 (a), respondents in visitation proceedings have a right to be represented by counsel and, if they are financially unable to obtain counsel, have the right to have counsel assigned by the court … . * * *

“Here, the record is clear that the mother did not wish to proceed pro se, but was forced to do so” … ; as such, “the record . . . does not indicate that [she] made a knowing and intelligent waiver of [her] rights to be represented by counsel” … . It appears from the record that Family Court determined that the mother had forfeited her right to counsel. Indeed, “[a] litigant may forfeit the right to assigned counsel through a persistent pattern of threatening, abusive, obstreperous, and uncooperative behavior with successive assigned counsel” … . However, such a forfeiture is an “extreme, last-resort” based upon “egregious conduct by a [respondent]” … . Simply put, while we are certainly mindful of the difficult position Family Court was in, “the record fails to clearly reflect that the mother engaged in the sort of egregious conduct that would justify a finding that she forfeited her right to assigned counsel” … . Matter of Carlene R. v Heather A., 2026 NY Slip Op 04015, Third Dept 6-25-24

Practice Point: In a Family Court visitation proceeding a party’s waiver of the right to counsel must be explicit. Here it was clear mother did not wish to go forward pro se.

 

 

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THE PETITIONER DID NOT DEMONSTRATE IT MADE DILIGENT EFFORTS TO STRENGTHEN THE PARENT-CHILD RELATIONSHIP IN THIS TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING; PERMANENT NEGLECT FINDING VACATED; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Family Court, determined petitioner in this termination-of-parental-rights proceeding, did not demonstrate make a diligent effort to encourage and strengthen the parent-child relationship. The permanent neglect finding was vacated:

“When a foster care agency brings a proceeding to terminate parental rights on the ground of permanent neglect, it must, as a threshold matter, prove by clear and convincing evidence that it has fulfilled its statutory duty to exercise diligent efforts to encourage and strengthen the parent-child relationship” (… see Social Services Law § 384-b[7][a]). “Those efforts must include counseling, making suitable arrangements for parental access, providing assistance to the parents to resolve the problems preventing the child’s discharge, and advising the parents of the child’s progress and development” … . “An agency must always determine the particular problems facing a parent with respect to the return of his or her child and make affirmative, repeated, and meaningful efforts to assist the parent in overcoming these handicaps” … .

Here, the petitioner failed to meet its initial burden of establishing by clear and convincing evidence that it exercised diligent efforts to strengthen the parental relationship between the father and the children … . The evidence adduced at the fact-finding hearing failed to establish that the petitioner arranged any parental access between the father and the children, referred the father to any services, or assisted the father with obtaining suitable housing. Matter of Elijah L. Jr. (Elijah L.), 2026 NY Slip Op 03963, Second Dept 6-24-26

Practice Point: In a termination-of-parental-rights proceeding the agency must demonstrate that diligent efforts to strengthen the parent-child relationship were made. Here the proof of diligent efforts was lacking.

 

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FATHER, PRO SE, DRAFTED HIS APPELLATE BRIEF WITH GENAI, RESULTING IN CITATIONS TO NONEXISTENT AUTHORITY; USING GENAI TO DRAFT AN APPELLATE BRIEF AND THEN FAILING TO VERIFY THE ACCURACY AND LEGITIMACY OF THE CITATIONS IS “FRIVOLOUS CONDUCT” WHICH WARRANTS A MONETARY SANCTION (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wooten, determined father, who, pro se, drafted his appellate brief using GenAI resulting in citations to nonexistent authority, should be sanctioned for frivolous conduct and fined $250.00. The “frivolous conduct” is the failure to verify the accuracy and legitimacy of the citations:

“Pursuant to 22 NYCRR 130-1.1(a), a court may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct” … . “Conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” … .

Here, by filing an appellate brief citing to a nonexistent case as the sole support for his claim of judicial bias, the father engaged in conduct that was “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” … , and that involved the assertion of “material factual statements that are false” … . Thus, the father’s reliance on GenAI, without taking the time to verify that the limited number of cases in his appellate brief stood for the propositions cited, let alone were actually in existence, constituted frivolous conduct. Matter of Julien v Arthur, 2026 NY Slip Op 03308, Second Dept 5-27-26

Practice Point: Using GenAI to draft an appellate brief is not “frivolous conduct.” It is the failure to verify the accuracy and legitimacy of citations to nonexistent authority in the GenAI document which constitutes “frivolous conduct” for which a monetary sanction is appropriate.

 

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RESOLVING A SPLIT OF AUTHORITY, THE COURT OF APPEALS HELD THE ATTORNEY FOR THE CHILD (AFC) HAS THE AUTHORITY TO APPEAL A CUSTODY DETERMINATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, reversing the Fourth Department and addressing a split of authority, determined the attorney for the child (AFC) has the authority to appeal a custody determination if the child is aggrieved:

The Appellate Division Departments have split over whether an AFC can appeal a custody determination on behalf of their client when neither parent-party has appealed. The Second Department has endorsed the AFC’s authority to appeal on behalf of their client, emphasizing that the Family Court Act expressly “recognizes that an [AFC] has the right to pursue an appeal on behalf of the child” because it permits the AFC to file a notice of appeal … . The First and Third Departments have adopted the Second Department’s reasoning … . The Fourth Department has taken a different approach, dismissing appeals taken solely by an AFC when neither parent-party appeals or otherwise indicates their support for the child’s appeal, reasoning that a “child in a custody matter does not have ‘full-party status’ ” and therefore cannot force their parent to ” ‘litigate a petition that [they] ha[ve] since abandoned’ … . * * *

The Family Court Act plainly authorizes an AFC to appeal on behalf of the subject child even though the child is not a full party to the custody proceedings. However, the subject child—like any appealing party—must still meet the CPLR’s aggrievement requirement and other applicable jurisdictional requirements (see CPLR 5511 [only an “aggrieved party” may appeal]; Family Ct Act § 165 [a] [Family Court proceedings follow the provisions of the CPLR unless a different procedure is set forth in the Family Court Act]). Here, the children were aggrieved as the AFC argued against modifying the original custody order designating mother as the primary custodial parent and advocated that the children wished to remain primarily with her, but Family Court modified the custody order by awarding mother and father joint custody and shared residency. Matter of Abdoch v Abdoch, 2026 NY Slip Op 03219, CtApp 5-21-26

Practice Point: The attorney for the child (AFC) can appeal a custody determination where the child is aggrieved.

 

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THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES (OCFS) DID NOT HAVE THE AUTHORITY TO CREATE THE “HOST FAMILY HOME” PROGRAM AS AN ALTERNATIVE TO THE STATUTORY FOSTER CARE PROGRAM (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, reversing the Appellate Division, determined the NYS Office of Children and Family Services (OCFS) did not have the authority to create the “Host Family Home” program as an alternative to the state’s statutory foster care regime:

The voluntary foster care statutes … mandate judicial involvement and oversight at several key junctures. At the outset, OCFS must petition Family Court to approve any placement expected to last longer than 30 days. The court may only do so after assessing that the placement was “knowingly and voluntarily” sought by the parent; that the placement would be “in the best interest of the child”; that “reasonable efforts were made . . . to prevent or eliminate the need for removal of the child from [their] home;” and that OCFS complied with the other miscellaneous requirements of Social Services Law § 384-a … . If placement lasts for at least eight months, the Family Court Act requires that Family Court hold a “permanency hearing” where it assesses the child’s well-being in the foster home and determines what, if any, further action would serve the best interests of the child … . These hearings must be held every six months thereafter until termination of the placement, or until the child ages out of foster care. Both parents and children are entitled to assigned counsel during these proceedings … . * * *

The Host Family Home program … purports to relieve its participants from some of the most important protections in the foster care system. Under the program, courts need not approve placements lasting longer than 30 days, nor are they required to assess the well-being of the child if they have been left in foster care for over eight months. Because the courts are not involved, the State need not provide assigned counsel to parents or children to advocate for them during these otherwise mandatory hearings. OCFS is likewise not required to identify known friends or relatives who might care for the child, nor offer any government-paid preventive services, before allowing parents to access host family care.

The Host Family Home program’s elimination of these protections risks diverting children away from the voluntary foster care system. Matter of Lawyers for Children v New York State Off. of Children & Family Servs.. 2026 NY Slip Op 03218, CtApp 5-21-26

 

 

 

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