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CLAIMANT’S SEXUAL ABUSE CONVICTION WAS VACATED AFTER THE ALLEGED VICTIM RECANTED; CLAIMANT BROUGHT AN ACTION AGAINST THE STATE PURSUANT TO COURT OF CLAIMS ACT SECTION 8-B FOR UNJUST CONVICTION AND IMPRISONMENT; THE COURT OF CLAIMS PROPERLY FOUND CLAIMANT DID NOT PROVE HIS INNOCENCE BY CLEAR AND CONVINCING EVIDENCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a dissenting opinion, affirming the dismissal of claimant’s action for unjust conviction and imprisonment, determined claimant, whose sexual abuse conviction was vacated after the alleged victim recanted, did not prove his innocence by clear and convincing evidence. The opinion is fact-specific and cannot be fairly summarized here:

Tuckett filed this claim against the State, seeking damages for unjust conviction and imprisonment pursuant to Court of Claims Act § 8-b. Tuckett needed to “prove by clear and convincing evidence” the remaining two elements of his claim: that “he did not commit any of the acts charged in the accusatory instrument” and that “he did not by his own conduct cause or bring about his conviction” (Court of Claims Act § 8-b [5] [c], [d]). * * *

A claimant who asserts a damages claim against the State under section 8-b must prove their innocence by clear and convincing evidence. That task “is certainly not a simple one” … . After hearing from and observing Tuckett and N.M. (the alleged victim), the Court of Claims determined that the accusations were credible and the recantation was not, and that Tuckett therefore failed to carry his burden. We see no reversible error in that decision. Tuckett v State of New York, 2025 NY Slip Op 03099, CtApp 5-20-25

Practice Point: An action against the state for unjust conviction and imprisonment pursuant to Court of Claims Act section 8-b requires that the claimant prove his or her innocence by clear and convincing evidence. Here the testimony of the alleged victim, who had recanted his allegations of sexual abuse, was not enough.

 

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HERE DEFENDANT MADE A TIMELY REQUEST TO REPRESENT HIMSELF WHICH WAS DENIED WITHOUT ANY INQUIRY; DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO SELF-REPRESENTATION (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissenting opinion (three judges), reversing defendant’s convictions and ordering a new trial, determined that the judge’s failure to conduct an inquiry before denying defendant’s request to represent himself violated his constitutional right to self-representation:

A defendant has a constitutional right to proceed pro se (see US Const Amend VI; NY Const, art I, § 6; see also CPL 170.10 [6], 180.10 [5], 210.15 [5] [codifying a defendant’s constitutional right to self-representation]). Defendant invoked that right when he informed Supreme Court that he “would like to represent [him]self” at his upcoming trial. People v McIntyre (36 NY2d 10 [1974]) and its progeny required that the court make a searching inquiry into defendant’s unequivocal and timely request to proceed pro se, to determine whether that request was knowing, voluntary, and intelligent. Contrary to that rule, the court immediately denied defendant’s request without inquiry, and it expressly refused to consider any further request until the day of trial. The court’s failure to inquire into defendant’s request violated his constitutional right to self-representation. Therefore, we reverse and grant defendant a new trial.

On June 4, 2018, the parties appeared for trial. * * * This colloquy followed:

THE DEFENDANT: I’m going to go cocounsel.
THE COURT: I can’t hear you.
THE DEFENDANT: Cocounsel. I’m going to go cocounsel.
THE COURT: Cocounsel?
THE DEFENDANT: Yes.
THE COURT: What is that?
THE DEFENDANT: Meaning I’m going to represent myself in this case.
THE COURT: You mean pro se.
THE DEFENDANT: Yes. I will be going pro se at trial. I will be representing myself acting as my own.
THE COURT: You made no application before me.
THE DEFENDANT: I never said I wanted a trial by jurors. I never told this individual that I wanted a trial by jurors.
THE COURT: You know, Mr. Lewis, I’m assuming now you’re trying to play games with this court. . . . I’ll continue with this trial. If you want to speak to [defense counsel] about certain issues, I’ll hear [defense counsel] tomorrow morning.”

The following morning, the court invited defendant to raise any issues before proceeding with jury selection. Defendant asserted again that he did not want defense counsel to represent him, alleging that counsel was ineffective, had a conflict of interest, and was not working on his behalf. The court only responded, “[o]kay. Nicely done,” and continued the proceeding. People v Lewis, 2025 NY Slip Op 03011, CtApp 5-20-25

Practice Point: A defendant has a constitutional right to self-representation. A judge must conduct a “searching inquiry” upon a timely request.​

 

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MOTHER’S APPEALS FROM EXPIRED PERMANENCY HEARING ORDERS (RE: CHILDREN’S PLACEMENT IN FOSTER CARE) WERE PROPERLY DISMISSED AS MOOT, TWO COMPREHENSIVE DISSENTING OPINIONS (THREE DISSENTING JUDGES) (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over two comprehensive dissenting opinions (three judges), determined the Appellate Division had properly dismissed mother’s appeals of expired permanency hearing orders (re: children’s placement in foster care) as moot, and properly declined to hear the appeals under an exception to the mootness doctrine:

Generally, ” ‘an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment’ ” … . Here, the Appellate Division properly determined that the mother’s appeals are moot. At the time the Appellate Division entered its decisions, both permanency hearing orders were “superseded by subsequent permanency hearing orders, which continued the child’s placement in foster care” … . * * *

… [T]he Appellate Division did not abuse its discretion in determining that the issues raised below were “not sufficiently substantial or novel to warrant an exercise of [its] exceptional discretion to retain the appeal despite mootness” … . Matter of Joshua J. (Tameka J.), 2025 NY Slip Op 03010, CtApp 5-20-25

Practice Point: Consult this opinion for concise explanations of the appellate mootness doctrine and the application of an exception to the mootness doctrine.

 

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PURSUANT TO THE “INTERNAL AFFAIRS” DOCTRINE, PLAINTIFF, A NEW YORK CORPORATION AND BENEFICIAL OWNER OF SHARES IN BARCLAYS, AN ENGLISH CORPORATION, DID NOT HAVE STANDING TO BRING A DERIVATIVE SUIT ON BEHALF OF BARCLAYS AGAINST OFFICERS AND MANAGERS OF A NEW YORK AFFILIATE OF BARCLAYS IN NEW YORK (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a comprehensive dissenting opinion, determined that the Business Corporation Law (BCL)  (sections 626(a) and 1319(a)(2)) has not displaced the “internal affairs” doctrine, a choice-of-law rule providing that the substantive law of the place of incorporation governs disputes about the rights and relationships of corporate shareholders and managers. The Court of Appeals affirmed the lower courts’ rulings that plaintiff, a New York corporation and a beneficial owner of shares in England-based Barclays, did not have standing to sue, on behalf of Barclays, directors and officers of Barclays New York-based affiliate in New York:

The corporation at the center of this appeal is Barclays PLC (Barclays), a bank holding company incorporated under the laws of England and Wales and headquartered in London. Plaintiff Ezrasons, Inc. is a New York corporation and a beneficial owner of Barclays shares. In 2021, plaintiff commenced this action on behalf of Barclays against almost four-dozen current and former Barclays directors and officers and a New York-based affiliate, Barclays Capital Inc. (BCI). The complaint alleged that the individual defendants, aided and abetted by BCI, breached fiduciary duties owed to Barclays under English law, causing significant injuries to the company. * * *

Supreme Court granted defendants’ motion to dismiss the complaint, explaining that under the internal affairs doctrine, foreign law governs the question of whether a plaintiff has the right to sue corporate management on behalf of a foreign corporation. The court rejected plaintiff’s argument that the legislature intended to override that choice-of-law rule when it enacted sections 626 (a) and 1319 (a) (2) of the BCL, agreeing with four decades of case law holding that those provisions “simply confer[] jurisdiction upon New York courts over derivative suits on behalf of out-of-state corporations, but do[ ] not require application of New York law in such suits” … .

The Appellate Division unanimously affirmed, agreeing with Supreme Court that plaintiff lacks standing to pursue this shareholder derivative action on behalf of Barclays … . … [T]he Appellate Division rejected plaintiff’s argument that sections 626 (a) and 1319 (a) (2) displace the internal affairs doctrine and preclude application of English standing law … . Ezrasons, Inc. v Rudd, 2025 NY Slip Op 03008, CtApp 5-20-25

Practice Point: Business Corporation Law sections 626(a) and 1319(a)(2) do not displace the “internal affairs” doctrine which provides that the substantive law of the place of incorporation (England in this case) governs disputes about the rights and relationships of corporate shareholders and managers. Here a New York corporation which holds shares of an English corporation could not sue the officers and managers of a New York affiliate of the English corporation in New York.​

 

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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 has been convicted of a felony in a foreign jurisdiction and is required to register as a sex offender in that jurisdiction. Because there is no federal sex-offender-registration regime, the foreign-conviction provision of the Correction Law does not apply here:

The primary issue on this appeal from a Sex Offender Registration Act (SORA) risk assessment determination is whether defendant was properly designated as a sexually violent offender under Correction Law § 168-a (3). SORA defines three circumstances under which such a designation is appropriate. Relevant here is the third circumstance: where a defendant stands convicted of “a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred” (Correction Law § 168-a [3] [b]). A plain reading of the statutory language, and application of our precedent in this area, establish that defendant was not required to register as a sex offender in the jurisdiction in which his conviction occurred and, therefore, was improperly designated as sexually violent. * * *

Applying the clear and unambiguous statutory language in this case, defendant cannot be designated as “sexually violent” because he was not required to register as a sex offender in the jurisdiction in which his conviction occurred. This is so because the federal government does not maintain a sex offender registry of the sort that states are required to operate by federal mandate. Although the federal government maintains two sex offender databases, the information contained in them merely represents a collection of registration information acquired from registries maintained by individual state and territorial jurisdictions (see 34 USC § § 20921; 20922). People v Sherlock, 2025 NY Slip Op 02966, CtApp 5-15-25

Practice Point: 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. Therefore a federal child pornography conviction does not trigger a “sexually violent offender” SORA designation.

 

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THE LAWSUIT BROUGHT BY PLAINTIFF BENEFICIARY AGAINST DEFENDANT TRUSTEE DID NOT CHALLLENGE THE TRUST, BUT RATHER SOUGHT TO ENFORCE THE PROVISIONS OF THE TRUST; THEREFORE THE LAWSUIT DID NOT TRIGGER THE IN TERROREM CLAUSE (WHICH DISPOSSES A BENEFICIARY WHO SEEKS TO NULLIFY THE TRUST); THERE WAS A THREE-JUDGE DISSENT (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a three-judge dissent, reversing (modifying) Supreme Court, determined the lawsuit brought by plaintiff beneficiary of the estate (Carlson) against the trustee (Colangelo) did not trigger the “in terrorem” clause in the will and the trust. Therefore the provisions of the will and the trust remained enforceable by the plaintiff and the plaintiff was entitled to the real property bequeathed to her. The opinion is fact-specific and cannot be fairly summarized here:

The trust includes an in terrorem clause, which dispossesses a beneficiary or other challenger who contests or seeks to nullify the trust. The issue on this appeal is whether plaintiff triggered the clause when she commenced the underlying action against the trustee and thereby forfeited her bequests. * * *

We conclude that because plaintiff’s lawsuit seeks to enforce the Trust provisions as written and intended by the grantor, plaintiff did not attempt to nullify the Trust or challenge its terms. Thus, plaintiff did not violate the in terrorem clause and defendant is not entitled to summary judgment. We further conclude that plaintiff has established her right to summary judgment on her first cause of action regarding her ownership rights to the Premises and her motion should be granted to that extent. Carlson v Colangelo, 2025 NY Slip Op 02264, CtApp 4-17-25

Practice Point: Consult this opinion for insight into when a lawsuit against a trustee triggers an in terrorem clause in the trust document. Here the majority concluded the lawsuit did not challenge the trust but rather sought to enforce the provisions of the trust. Therefore the in terrorem clause was not triggered.

 

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IN THIS CHILD VICTIMS ACT NEGLIGENT-SUPERVISON ACTION AGAINST THE COUNTY, THE PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE COUNTY HAD NOTICE OF A SOCIAL SERVICES CASEWORKER’S SEXUAL ABUSE OR PROPENSITY FOR SEXUAL ABUSE OF CHILDREN (CT APP).

The Court of Appeals, affirming the dismissal of this Child Victims Act suit against the county, in a full-fledged opinion by Judge Wilson, over a comprehensive dissenting opinion, determined the plaintiff did not raise a question of fact about whether the county had actual or constructive notice that a Department of Social Services caseworker (Hoch) had sexually abused children or had a propensity for the sexual abuse of children. Therefore, the plaintiff did not make out a prima facie “negligent supervision” cause of action:

In the summer of 1993, the parents of 11-year-old Michael Nellenback had him designated as a person in need of supervision (PINS) and placed in the care of Madison County’s Department of Social Services. The Madison County Department of Social Services assigned caseworker Karl Hoch to the Nellenback case. According to Mr. Nellenback, over the next three years, Mr. Hoch repeatedly sexually abused and assaulted him. It turned out that Mr. Hoch had sexually abused several other children to whose cases he was assigned.

In 2019, Mr. Nellenback filed suit against Madison County under the claim-revival provision of the Child Victims Act, alleging that that the County was negligent in hiring, supervising, and retaining Mr. Hoch. The sole issue on appeal is whether Mr. Nellenback raised a triable issue of fact on his negligent supervision claim. We hold that he did not: Even viewed in the light most favorable to Mr. Nellenback, the evidence was insufficient to prove the County was on notice of the abuse and that it negligently placed Mr. Hoch in a position to cause harm. * * *

… [T]here was neither evidence that the County had any knowledge of Mr. Hoch’s abuse before the report of his abuse of another child in 1996, nor any evidence the County was aware of any conduct that could have alerted them to the potential for harm. Nellenback v Madison County, 2025 NY Slip Op 02263, CtApp 4-17-25

Practice Point: This is a fact-specific opinion which analyzes the proof necessary to raise a question of fact whether a county social services department had constructive notice of its caseworker’s propensity for the sexual abuse of children. The majority, over an extensive dissent, determined the evidence relied on by the plaintiff was not sufficient to raise a question of fact.

 

MARKETING INFORMATION PROVIDED TO INDIVIDUAL CLIENTS WHICH IS SUBSEQUENTLY INCLUDED IN REPORTS SOLD TO OTHERS IS SUBJECT TO SALES TAX (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a comprehensive two-judge dissent, affirming the appellate division, determined the Tax Appeals Tribunal properly held that petitioner’s (Dynamic’s) information service was subject to sales tax:

Dynamic markets products to help clients measure the effectiveness of their advertising campaigns. At issue here is one such product, AdIndex, which Dynamic describes as using “a control/exposed methodology to measure the effectiveness of digital advertising at communicating brand messaging.” To create an AdIndex report, Dynamic identifies individuals who have been exposed to a client’s advertisements and then surveys them along with a control group. The survey questions are largely standardized but may contain a small number of campaign-specific questions. The results are compared to broader market data contained in MarketNorms, a database maintained by Dynamic that is also available to clients as a standalone subscription service. Dynamic then generates a report for the client which includes the survey data collected, an analysis of the “story” the data tells, as well as client-specific “insights,” “implications,” “next steps” and “recommendations” gleaned from the data. The data gathered in each AdIndex report is later incorporated into the MarketNorms database for use in reports prepared for future clients. * * *

… [T]he Tribunal’s determination that the inclusion of the information originally generated for individual clients into products eventually sold to others meets the level of substantiality under section [Tax Law] 1105 (c) (1) is reasonable and supported by substantial evidence … . Matter of Dynamic Logic, Inc. v Tax Appeals Trib. of the State of New York, 2025 NY Slip Op 02262, CtApp 4-17-25

Practice Point: Marketing information initially provided to individual clients but subsequently included in reports sold to others is subject to sales tax.

 

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OVERRULING A 2006 OPINION, A PLAINTIFF IN A DOG-BITE ACTION CAN NOW SUE IN STRICT LIABILITY AND COMMON-LAW NEGLIGENCE (CT APP).

The Court of Appeals, reversing the appellate division in this dog-bite case, in a full-fledged opinion by Judge Halligan, reinstating the strict liability and common-law negligence causes of action, overruled the 2006 Court of Appeals case holding that there is no common-law liability for injury caused by a domestic animal:

Plaintiff Rebecca Flanders, a postal carrier, was bitten by a dog owned by Defendants Stephen and Michelle Goodfellow while delivering a package to their residence. She commenced this action to recover damages for her injuries, asserting causes of action sounding in strict liability and negligence. Both causes of action were dismissed, and Flanders asks us to reinstate them.

Under settled law, an owner of a domestic animal who has actual or constructive knowledge of their animal’s vicious propensities will be held strictly liable for harm caused as a result of those propensities. There is a triable issue of fact as to whether the Goodfellows had constructive knowledge of their dog’s vicious propensities, and so summary judgment should not have been granted to them on the strict liability cause of action.

The lower courts dismissed Flanders’s negligence cause of action as barred by Bard v Jahnke (6 NY3d 592 [2006]), which held that there can be no common-law negligence liability when a domestic animal causes harm. Experience has shown that this rule is in tension with ordinary tort principles, unworkable, and, in some circumstances, unfair. Continued adherence to Bard therefore would not achieve the stability, predictability, and uniformity in the application of the law that the doctrine of stare decisis seeks to promote. Accordingly, we overrule Bard to the extent that it bars negligence liability for harm caused by domestic animals, and reinstate Flanders’s negligence cause of action. * * *

Our decision today means that there is a two-pronged approach to liability for harms caused by animals … .. A plaintiff who suffers an animal-induced injury therefore has a choice. If the owner knew or should have known the animal had vicious propensities, the plaintiff may seek to hold them strictly liable. Or they can rely on rules of ordinary negligence and seek to prove that the defendant failed to exercise due care under the circumstances that caused their injury. Of course, a plaintiff might also assert both theories of liability … .  Flanders v Goodfellow, 2025 NY Slip Op 02261, CtApp 4-17-25

Practice Point: A plaintiff in a dog-bite case can now assert both strict liability and common-law negligence causes of action.

 

IN LAWSUITS AGAINST THE GOLF-COURSE OWNERS, A GOLFER COMPETING IN A TOURNAMENT ASSUMED THE RISK OF BEING STRUCK BY A GOLF BALL WHILE RIDIING IN A GOLF CART ON THE COURSE, BUT A GOLFER DRIVING A GOLF CART TO HER CAR IN THE COURSE PARKING LOT DID NOT ASSUME THE RISK OF A COLLISION WITH A CAR EXITING THE PARKING LOT (CT APP).

The Court of Appeals, affirming one assumption-of-the-risk case and reversing the other, in a full-fledged opinion by Judge Cannataro, determined, in lawsuits against the owners of the golf courses, a golfer assumes the risk of being struck with a golf ball, but does not assume the risk of injury in a collision while driving a golf cart in the course parking lot:

This Court recently reaffirmed that the primary assumption of risk doctrine must be carefully circumscribed so as not to undermine the legislative comparative fault regime applicable to personal injury actions … . In these appeals, we clarify the scope of two important limitations on the doctrine: its inapplicability to unreasonably enhanced risks and its confinement to cases involving participation in athletics and recreation.

On the same day in June 2020, plaintiffs were injured in separate and very different accidents related to the sport of golf. Plaintiff David Katleski was struck by an errant golf ball while competing in a golf tournament. Plaintiff Mary E. Galante was struck by a car in the parking lot of a golf course before she began to play the course. For the reasons that follow, the primary assumption of risk doctrine precludes Katleski’s negligence claim because the risk of being struck by a mishit ball while golfing is inherent in the game and there is no evidence that the design of the course unreasonably enhanced that risk. Galante’s claim must be reinstated, however, because the primary assumption of risk doctrine has no application to a person who was not participating in a protected athletic or recreative activity at the time of their injury. Katleski v Cazenovia Golf Club, Inc., 2025 NY Slip Op 02178, CtApp 4-15-25

Practice Point: In lawsuits against the owners of golf courses: a golfer assumes the risk of being struck by an errant ball while riding in a golf cart on the course; but a golfer does not assume the risk of being struck by a car while driving a golf cart to her car in the course parking lot.

 

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