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FAMILY COURT LOST SUBJECT MATTER JURISDICTION AFTER THE NEGLECT PETITION WAS DISMISSED; THEREFORE THE COURT SHOULD NOT HAVE CONTINUED THE CHILD’S PLACEMENT IN FOSTER CARE (FIRST DEPT).

The First Department, reversing Family Court, in a full-fledged opinion by Justice Gesmer, determined Family Court lost subject matter jurisdiction after the neglect petition against mother was dismissed. Therefore the child’s placement in foster should not have been continued by the court. The First Department also noted that mother’s mental-health records from the period after the filing and after the dismissal of the neglect petition were improperly admitted:

We … find that Family Court lacked subject matter jurisdiction to continue R.C.’s foster care placement for the reasons articulated in Matter of Jamie J. (Michelle E.C.) (30 NY3d 275 [2017]), in which the Court of Appeals held that “Family Court’s jurisdiction terminates upon dismissal of the original neglect or abuse petition” … .

The “court’s lack of subject matter jurisdiction is not waivable, but may be raised at any stage of the action, and the court may . . . on its own motion . . . at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action” … .

Here, once the neglect petition against the mother was dismissed, Family Court lacked subject matter jurisdiction to continue the child’s temporary removal from the mother’s care and placement in foster care … . Accordingly, it should have immediately returned the child to the mother’s care and terminated the child’s foster care placement. It erred when it determined that it could hold permanency hearings based on the pending neglect petition against the putative father, since the child was not removed from his care, but from the mother’s. … Indeed, there is no evidence in the record that the child ever resided with the putative father and no indication that he ever sought custody of the child.

Furthermore, we find that the failure of Family Court to immediately return the child to the care of the mother after the dismissal of the neglect petition against her—as well as the subsequent protracted proceedings, including the dispositional hearing, which lasted nearly a year and a half—violated her due process rights … . Matter of R.C. (D.C.–R.R.), 2025 NY Slip Op 01859, First Dept 3-27-25

Practice Point: Here Family Court lost subject matter jurisdiction after the neglect petition against mother was dismissed and did not have the authority to continue the child’s placement in foster care.

Practice Point: The protracted proceedings after the dismissal of the neglect petition, during which the child remained in foster care, violated mother’s right to due process.

 

FOIL REQUESTS FOR DOCUMENTS POSSESSED BY ANOTHER AGENCY AND FOIL REQUESTS WHICH REQUIRED THE CREATION OF A NEW DOCUMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined FOIL requests for documents in the possession of another agency and FOIL requests which require the creation of a new document should not have been granted:

The court improperly ordered DCAS [Department of Citywide Administrative Services] to produce information possessed by another agency, the Financial Information Systems Agency (FISA). FOIL does not require an agency “to prepare any record not possessed or maintained by” that agency (Public Officers Law § 89[3][a]). DCAS’s witness gave unrebutted testimony that several of the eight categories of requested information are maintained in a separate database by FISA, not DCAS. Accordingly, DCAS is “under no obligation to provide” that information … .

The court also improperly required DCAS to undergo a process that would constitute the creation of a new record … . DCAS’s witness provided testimony that compliance with the request would require a multi-step process involving writing requirements for searches and for extracting data from three databases, reviewing the data for accuracy and completeness, developing code to “convert” the raw “transactional” data into “time series” or “status” data, and then aggregating and otherwise cleaning up the information into a report. Her testimony was consistent with her affidavit describing the process and estimating that, while the discrete step of extracting the raw data from DCAS’s database would take only four hours, “the staff time required for the production of the requested reports” as a whole “is not less than 150 to 158 hours.”

This Court has held that a similar “transformation process” necessary to compile an analogous list of City employee information “would entail much more than a ‘simple manipulation of the computer . . . to transfer existing records'” and would therefore constitute the creation of a new record … . “[T]here is no fair interpretation of the [testimony] that can support” the court’s findings that the total process would take only four hours or that this case is distinguishable from our previous holding … . Matter of FDNY Local 2507, DC-37, AFSCME v City of New York, 2025 NY Slip Op 01867, First Dept 3-27-25

Practice Point: A FOIL request for a document which is in the possession of another agency need not be granted.

Practice Point: A FOIL request which requires an agency to create a new document is improper.

 

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A JUROR, AN ATTORNEY, ALLEGEDLY TOLD THE OTHER JURORS THAT THE “BEYOND A REASONABLE DOUBT” STANDARD COULD BE DISREGARDED; DEFENDANT WAS ENTITLED TO A “JUROR MISCONDUCT” HEARING IN CONNECTION WITH HIS MOTION TO SET ASIDE THE VERDICT (FIIRST DEPT). ​

The First Department, holding the matter in abeyance, determined the allegations that a juror, A.H., an attorney, told the other jurors the “beyond a reasonable doubt” standard did not apply to everything in the case necessitated an evidentiary hearing on defendant’s motion to set aside the verdict:​​

Some of the alleged conduct of juror A.H., an attorney, described in the supporting affidavits of two jurors, was an emphatic expression of the juror’s thoughts, his strong belief in defendant’s guilt, his understanding of the court’s instructions, his personal antipathy to the defendant, and, to the extent it was incorrect, his understanding of the law, none of which constitutes juror misconduct under CPL 330.30(2) … . However, the affidavit of one juror (E.A.) affirmed that A.H. “told us that we did not have to apply the beyond a reasonable doubt standard for everything in the case.” The other juror (S.D.) affirmed that A.H. averred, without any stated exception, “that the proof did not have to be beyond a reasonable doubt.”

Considering these attestations regarding A.H.’s alleged direction to the jury members to disregard the court’s instruction concerning the burden of proof, defendant was entitled to an evidentiary hearing on his motion to set aside the verdict. We hold the appeal in abeyance for that purpose. People v Hernandez, 2025 NY Slip Op 01589, Ct App 3-18-25

Practice Point: Consult this decision for some insight into what is, and what is not, juror-misconduct, here in the context of a juror, an attorney, telling the other jurors the “beyond a reasonable doubt” standard may be disregarded.

 

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HERE THE PLAINTIFF WAS IN PRIVITY WITH A NONPARTY WHICH WAS DEEMED TO HAVE HAD A “VICARIOUS DAY IN COURT” SUCH THAT THE DOCTRINE OF RES JUDICATA PRECLUDED PLAINTIFF’S ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-ledged opinion by Justice Scarpulla, determined the doctrine of res judicata required dismissal of plaintiff’s fraudulent conveyance cause of action. The lawsuit concerned disputed ownership of precious gems. The opinion is fact-specific and too complex to fairly summarize here. With respect to the application of the res judicata doctrine, the court wrote:

This appeal stems from a dispute between precious gemstone traders. Plaintiff Shanghai Pearls & Gems, Inc. … alleges that defendants … improperly transferred gems they received on consignment from nonparty Diamond Corporation Capital Group, LLC (D&M). The transferred gems included the “Pink Diamond,” in which plaintiff held a one-third interest, and the “Kashmir Sapphire.” * * *

Although defendants’ settlement with D&M did not release plaintiff’s original one-third interest in the Pink Diamond, plaintiff’s fraudulent conveyance claims based on that interest should be dismissed because the claims are barred by res judicata. Pursuant to the doctrine of res judicata, a valid final judgment precludes “future actions between the same parties or those in privity with them on any claims arising out of the same transaction or series of transactions . . . , even if based upon different theories or if seeking a different remedy” … .

A determination that privity exists, in the context of res judicata, must be based on a “flexible analysis” of the relationship between the party and the nonparty in the previous litigation … . This analysis, in turn, requires courts to consider “whether the circumstances of the actual relationship, the mutuality of interests, and the manner in which the nonparty’s interest were represented in the earlier litigation established a functional representation such that the nonparty may be thought to have had a vicarious day in court” … .

Here, plaintiff was in privity with D&M vis-À-vis the assignment of the interests in the Pink Diamond and Kashmir Sapphire. D&M’s claims against defendants in the bankruptcy proceeding and plaintiff’s claims against defendants in this action “are closely related in time, space, motivation, or origin” such that the claims “arise out of the same transaction, and res judicata should apply” … . Shanghai Pearls & Gems, Inc. v Paul, 2025 NY Slip Op 01433, First Dept 3-13-25

Practice Point: Although this opinion is complicated and fact-specific, it provides useful insight into the flexibility of the “privity” element of the res judicata doctrine. Here the nonparty with which plaintiff was in privity was deemed to have had a “vicarious day in court” triggering the application of the res judicata doctrine to the plaintiff’s action.

 

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BOTH INSURANCE POLICIES WERE DEEMED TO COVER SEXUAL HARASSMENT CLAIMS AGAINST AN EMPLOYER AND ITS EMPLOYEE BROUGHT BY SEVERAL CO-EMPLOYEES SPANNING YEARS AND DIFFERENT WORKPLACES; THE POLICY LANGUAGE DID NOT RESTRICT THE COVERAGE FOR “RELATED” OR “INTERRELATED ACTS” TO A SINGLE PLAINTIFF (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Singh, determined the language of the two insurance policies covered sexual harassment claims against an employer and its employee brought by several co-employees spanning years and different workplaces. The case is fact-specific and turned on the contractual definition of “related wrongful acts” in one policy and “interrelated wrongful acts” under the other policy:

Nothing in the language of either policy restricts Related or Interrelated Wrongful Acts to those harming the same plaintiff. * * *

… [I] both policies, common facts and common causation are presented in the disjunctive. Shared causation is necessary only in that the allegations must “aris[e] from” the “common nexus or nucleus of facts.” “In insurance contracts, the phrase ‘arising out of’ is ordinarily understood to mean originating from, incident to, or having connection with. It requires only that there be some causal relationship between the injury and the risk for which coverage is provided or excluded” … . * * * Zurich Am. Ins. Co. v Giorgio Armani Corp., 2025 NY Slip Op 01335, First Dept 3-11-25

Practice Point: The language used in an insurance policy determines the coverage. Here the policy language was such that it covered sexual harassment claims spanning years and different workplaces brought by several plaintiffs as “related” or “interrelated acts.”

 

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DEFENDANT’S MOTION TO VACATE THE 1994 ATTEMPTED MURDER CONVICTION ON “ACTUAL INNOCENCE” GROUNDS SHOULD NOT HAVE BEEN SUMMARILY DENIED; DEFENDANT SUBMITTED SUFFICIENT EVIDENCE TO WARRANT A HEARING, I.E., EVIDENCE A DECEASED COOPERATING WITNESS HAD CONFESSED TO BEING THE SHOOTER (FIRST DEPT).

The First Department determined the evidence of “actual innocence” submitted in defendant’s motion to vacate the 1994 attempted murder conviction warranted a hearing:

The court … should have ordered a hearing on defendant’s actual innocence claim … . Defendant presented evidence, supported by the statements of the Assistant United States Attorneys who handled the cooperator, that, in 1998, after defendant’s trial, the cooperator credibly exonerated defendant by admitting to the shooting. Although the cooperator has died, his confession would be admissible as a statement against penal interest … . Accordingly, the court lacked grounds for a summary denial under CPL 440.30(4)(b). People v Davila, 2025 NY Slip Op 01300, First Dept 3-6-25

Practice Point: If a motion to vacate a conviction is supported by credible evidence of “actual innocence,” a hearing is necessary before ruling on the motion.​

 

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THE ONLY EVIDENCE OF DEFENDANT’S PARTICIPATION IN THE SHOOTING WAS DNA ON A HANDGUN; THE EVIDENCE OF MURDER AND POSSESSION OF A WEAPON WAS LEGALLY INSUFFICIENT; THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE; INDICTMENT DISMISSED (FIRST DEPT).

The First Department, vacating defendant’s murder conviction and dismissing the indictment, determined the circumstantial evidence was legally insufficient and the verdict was against the weight of the evidence. The only evidence against the defendant was DNA on a handgun. No evidence placed defendant at the scene of the shooting or in the vehicle apparently used by persons (Jenkins and Brown) involved in the shooting:

… [T]here no evidence from which to infer that defendant had the intent to commit, or aid Jenkins or Brown in furtherance of, the shooting. The People’s case depends almost entirely upon the DNA evidence, from which the People infer that defendant racked the Glock used to kill Ms. Jacobs. The DNA evidence, however, is highly equivocal and does not reasonably permit such an inference. … Critically, the OCME [Office of the Chief Medical Examiner] criminalist Hardy testified that it was impossible to determine when each contributor left DNA on the gun; how defendant’s DNA was transferred to the gun; or, more importantly, whether defendant even touched the gun. Without additional evidence that defendant possessed the gun during or took any actions to aid Jenkins or Brown in the shooting, any conclusion that defendant possessed the gun or committed or aided in the shooting is based entirely on conjecture.

There is no such corroborating evidence. This case contains no physical, video, or testimonial proof regarding any act defendant took in furtherance of possessing the gun or shooting Ms. Jacobs. Even assuming arguendo defendant’s presence with Jenkins and Brown nearly two hours before the shooting, such does not lead to a permissible inference that he shot Ms. Jacobs or possessed the gun in furtherance of the crime that evening. * * *

Further, there is no legally sufficient evidence proving that defendant was present at the crime scene. Again, assuming that defendant was with Jenkins and Brown hours prior to the shooting does not permit any reasonable inference that he was with them at the crime scene. There is no evidence that defendant ever entered the Nissan. Nor was there evidence that he was present in the Nissan at the time of the chase. While police recovered from the Nissan fingerprints of Jenkins, Brown, and that of a third unidentified back seat passenger, they did not recover defendant’s prints. Additionally, the liquor bottles with which the People attempt to tie defendant to the car do not match those defendant purchased at the liquor store, and the bottles were never tested for defendant’s fingerprints or DNA. People v Coke, 2025 NY Slip Op 01297, First Dept 3-6-25

Practice Point: Consult this opinion for discussions of convictions based entirely on circumstantial evidence. the criteria for finding evidence legally insufficient. and the criteria for finding a verdict is against the weight of the evidence.

 

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OBSERVING THE DEFENDANT CARRYING CAPPED BOTTLES OF ALCOHOL AND HAVING A HEAVY OBJECT IN A JACKET POCKET WAS NOT SUFFICIENT TO JUSTIFY DETAINING DEFENDANT; DEFENDANT’S FLIGHT WHEN AN OFFICER SAID “COME OVER HERE” IS OF NO CONSEQUENCE; THE SEIZED HANDGUN SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Mendez, reversing Supreme Court, determined defendant’s motion to suppress the handgun seized in a street stop should have been suppressed. Two police officers in a vehicle observed the defendant crossing the street. The defendant was carrying haff-full bottles of alcohol, but the bottles were not open. When one of the officers got out of the police vehicle and shone a flashlight on the defendant he noticed there appeared to be a heavy object in the defendant’s jacket pocket. The officer told the defendant to “come over here.” The defendant ran, was tackled, and the handgun was seized:

Transporting closed bottles is a legal activity which, without more, does not give rise to a presumption of intent to consume, or a founded suspicion of criminal activity under DeBour. Moreover, the fact that it was raining makes it less likely that the defendant intended to congregate outside and remain exposed to the elements while consuming alcohol. Critically, the officers never saw defendant drink from any of the bottles. Therefore, these facts did not give rise to a presumption that defendant intended to consume alcohol in public in violation of the statute, and Officer Delia, at most, acquired the right to approach defendant to request information.

The heavy-weighted object in defendant’s right jacket pocket could not have justified defendant’s stop and detention because, “absent other circumstances evoking suspicion, indicative of or referable to the possession of a handgun, the observation of a mere bulge or heavy object in a pocket does not imply a reasonable conclusion that the person is armed” … . “A police officer must show that the object or appearance thereof which is the focus of his attention resembled a gun” … . Thus, absent a showing of anything other than a mere bulge or heavy object in defendant’s pocket, Officer Delia could not have acquired a level of suspicion sufficient to detain the defendant … . People v Walker, 2025 NY Slip Op 01194, First Dept 3-4-25

Practice Point: If what the police observe is not enough to justify a street stop, the defendant’s flight when the police approach is irrelevant.​

 

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ABSENT AMBIGUITY A COURT CAN NOT CONSIDER EXTRINSIC EVIDENCE TO INTERPRET A CONTRACT; HERE PLAINTIFF HAD BROUGHT TWO ACTIONS AGAINST THE CITY CHALLENGING TWO SEPARATE ARRESTS; THERE WAS NO INDICATION THE RELEASE ONLY APPLIED TO THE ACTION DESCRIBED IN THE CAPTION OF THE RELEASE; THE SPACE FOR DESCRIBING ANY ACTION TO BE EXCLUDED FROM THE RELEASE WAS LEFT BLANK; THEREFORE THE RELEASE APPLIED TO BOTH ACTIONS; THERE WAS A DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over a dissent, determined the release signed by plaintiff applied to both actions plaintiff had brought against the city, not just the action identified in the caption of the release. Plaintiff brought two separate actions challenging two arrests occurring 14 days apart. The release identified the action stemming from the second arrest and left a blank space to describe anything to be excluded from the release. That space was left blank. Supreme Court and the dissent determined that the plaintiff intended to exclude the first action from the release but plaintiff’s attorney inadvertently left the space for the exclusion blank:

Like any contract, a release must be “read as a whole to determine its purpose and intent,” and extrinsic evidence of the parties’ intent may be considered only if the agreement is ambiguous … . “A contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion” … . “More to the point, an ambiguity never arises out of what is not written at all, but only out of what was written so blindly and imperfectly that its meaning is doubtful” … .

Here, there was nothing surreptitious about the City sensibly filling in plaintiff’s name as the releasor, the case name and the index number referrable to Action 2, in the general release to identify the specific matter being settled. What followed are standard, boiler-plate operative terms of this general release, namely, a broadly worded waiver provision and a claim exclusion clause, both of which are clear and unambiguous. Thus, there was no legal basis for the motion court to use any extrinsic evidence, discern an unfounded ambiguity therefrom and ultimately surmise the parties’ intent to limit the scope of the general release to Action 2 … . Smith v City of New York, 2025 NY Slip Op 01198, First Dept 3-4-25

Practice Point: Here Supreme Court considered extrinsic evidence indicating that the release was meant to apply to only one of two actions plaintiff brought against the city. The First Department held that, because the release was not ambiguous, the court cannot consider extrinsic evidence. Therefore the release, by its terms, applied to both actions.

 

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HERE THE MOTION TO RENEW, BASED UPON A CHANGE IN OR CLARIFICATION OF THE LAW, SHOULD HAVE BEEN GRANTED DESPITE THE APPELLATE RULING ON THE PRIOR ORDER (FIRST DEPT).

he First Department, reversing Supreme Court, determined defendant landlord’s motion to renew based upon a change in the law should have been granted}

On appeal, this Court agreed with defendant that the law as it existed prior to enactment of the Housing Stability and Tenant Protection Act of 2019 (HSTPA) applies in this case. However, we found that plaintiffs had raised a triable issue of fact as to whether the landlord engaged in a fraudulent scheme [to deregulate apartments]. Accordingly, we affirmed denial of defendant’s summary judgment motion.

In April 2023, defendant moved in Supreme Court for renewal of its summary judgment motion. Defendant argued that Casey v Whitehouse Estates, Inc. (39 NY3d 1104 [2023]) supported its position on the summary judgment motion. The motion court denied the motion to renew and did not reach the substantive issue raised by defendant.

Contrary to plaintiffs’ contention, a court of original jurisdiction may entertain a motion for leave to renew based on an alleged change in or clarification of the law, “even after an appellate court has rendered a decision” on the prior order … . Accordingly, defendant’s motion to renew its summary judgment motion should be granted. 435 Cent. Park W. Tenant Assn. v Park Front Apts., LLC, 2025 NY Slip Op 01157, First Dept 2-27-25

Practice Point: Even where the denial of summary judgment has been affirmed on appeal, a motion to renew based upon a change in or clarification of the law should be granted.​

 

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