Court Filings

The Fourth District Court of Appeal reversed a circuit court order that awarded the father attorney’s fees as sanctions against the mother in a paternity case. The trial court granted the mother’s counsel leave to withdraw and conditioned a continuance on the mother paying the father’s fees for attending the hearing. The appellate court held the mother was not given notice that sanctions would be considered nor an opportunity to present evidence, violating due process, and therefore the sanctions award must be reversed. Because that reversal resolves the main issue, the court did not reach the remaining arguments.

The Fourth District Court of Appeal affirmed the trial court’s grant of summary judgment dismissing a homeowner plaintiffs’ suit challenging a neighbor’s parked RV. The appellants sued under Florida Statute section 720.305, but the court concluded their claimed injury was one to the homeowners association as a whole, not a personal injury. Because the claim was derivative in nature, the appellants were required to satisfy the pre-suit requirements of section 617.07401 for derivative actions and failed to do so. The appellate court therefore affirmed without addressing the merits of the RV dispute.

The appellate court reviewed portions of a circuit court order in a trust dispute between the parents (appellants) and the trustee (appellee) over expenditures for a disabled adult beneficiary. The court dismissed the appeal insofar as the parents sought review of compensation for their caregiving because the trial court’s order showed judicial labor on that issue had not concluded. For the remaining issues, the court affirmed the trial court’s rulings: sale of a residential condominium, reimbursement for a truck purchase, the parties’ agreement to use a “Dynamic Dividend Strategy” (but not a specific implementation option), and the sale of an office condominium did not violate due process.

The appellate court reviewed a dispute over whether a Letter of Intent and Shareholders’ Agreement created an enforceable commission agreement for plaintiff Henry McDowell after he transferred most of his company to Roger Moore and Jeff Garcia and Nautical Ventures South, Inc. The court held that paragraph 13 of the Letter of Intent, which left commission terms for future negotiation, was an unenforceable agreement to agree. It affirmed directed verdicts for Moore and Garcia on contract, fiduciary duty, and fraud claims, reversed the denial of a directed verdict for NVS, and remanded with instructions to enter judgment for NVS.

The Fourth District Court of Appeal affirmed a non-jury foreclosure judgment entered for The Bank of New York Mellon against Carlos Pantoja. The homeowner appealed solely because the lender failed to file its trial exhibits with the clerk after a hybrid (Zoom/in-person) trial, although the judge admitted and reviewed the exhibits during trial and the homeowner never objected then. The court held that the mere failure to file admitted exhibits is a clerical defect, not an independent basis for reversal, and explained that post-trial motions or motions to correct the record are the correct remedies to preserve review.

The Appellate Division, First Department affirmed a lower court order denying defendants' motion to dismiss a personal-injury complaint on sovereign-immunity grounds. Plaintiff was injured when a bus owned by New Jersey Transit Bus Operations, Inc. (NJTBO) struck her vehicle. Defendants argued NJTBO is an arm of New Jersey and therefore immune, but the U.S. Supreme Court's recent decision in Galette (which affirmed the New York Court of Appeals in Colt) held that New Jersey Transit Corporation (NJT) is not an arm of the State. Because NJTBO's immunity claim depends on NJT's status, the court concluded immunity does not apply and affirmed the denial of dismissal.

The Appellate Division, First Department reversed part of Supreme Court Bronx County's order and granted summary judgment to defendant Total Concrete Flatwork, LLC (TCF), dismissing the complaint and cross-claims against it in a motor-vehicle accident case. The court held that TCF established it did not own, operate, control the vehicle at issue and had no employment relationship with the driver. Plaintiffs and codefendants failed to raise a triable issue because ownership and permissive use were admitted by codefendant Total Property Care, leaving TCF unconnected to the vehicle or driver.

The Appellate Division, First Department reversed a lower court order and granted defendants' motions to dismiss plaintiff Cortlandt Street Recovery Corp.'s amended complaint in its entirety. The plaintiff alleged fraud and breach of contract based on an Offering Memorandum's statements about how subordinated notes' proceeds and certain equity instruments (CPECs/PECs) would be used or secured. The court found the Offering Memorandum did not contain actionable misrepresentations and that no contractual provision prohibited redemption of the cited equity instruments, so fraud and breach claims failed as a matter of law.

The First Department modified a lower court order in a discrimination suit by actress Kathy Breiding against director/producer Dennis Piliere and his company. The appellate court granted defendants summary judgment dismissing plaintiff's hostile work environment and retaliation claims under the pre-amendment New York State Human Rights Law (NYSHRL), finding Piliere's comments too sporadic to constitute a permeating hostile environment and that some complained conduct was not protected activity or did not cause an adverse NYSHRL employment action. The court otherwise affirmed denial of summary judgment, leaving plaintiff's gender discrimination claims and all claims under the New York City Human Rights Law (NYCHRL) to proceed based on disputed facts about pretext and disadvantageous treatment.

The Appellate Division, First Department reversed Supreme Court and granted summary judgment to Chutes and Compactors, dismissing 267 Development LLC's second third-party complaint. The building owner (267 Development) sought contractual indemnification, common-law indemnity and contribution, and insurance-failure damages from Chutes after a porter was injured by glass near a compactor. The court held Chutes' contractual obligations had ended long before the accident, there was no evidence Chutes had been negligent in failing to warn about or create the missing safety cover, and the owner abandoned its insurance claim by not opposing that part of the motion.

The Appellate Division, First Department reversed Supreme Court's dismissal and reinstated plaintiff Forrester's discrimination claims against 640 Park Avenue Corporation and Brown Harris Stevens Residential Management, LLC. The court held that under notice pleading the complaint sufficiently alleges that the co-op owner and managing agent were involved in defendant Tichenor's decision not to sell his unit to plaintiff — a qualified Black woman and nurse practitioner — who was later bypassed in favor of a white male board member. The court found the pleadings, including allegations about the managing agent's communications and the board member's last-minute purchase, adequate to raise an inference of discrimination and warrant discovery.

The Appellate Division, First Department affirmed the trial court's grant of summary judgment dismissing plaintiff Madalina Garrido's negligence action against Barawine LLC. Garrido claimed she tripped on a sidewalk crack and that Barawine's sidewalk café forced her into the defective middle slab. The court relied on Barawine's lease disclaiming sidewalk maintenance responsibility, an engineer's affidavit finding adequate clearance to avoid the defect, and testimony that tables would not have diverted the plaintiff's path. The court found plaintiffs failed to raise a triable issue of fact and properly rejected plaintiff's affidavit as inconsistent with her deposition.

The Appellate Division, First Department affirmed Supreme Court's order granting plaintiff M.P. summary judgment on liability for battery, assault, and false imprisonment and denied defendant A.'s cross-motion to dismiss claims based on wrongful transmission of a sexually transmitted disease (STD). The court found the plaintiff's sworn affidavit and exhibits (photographs, arrest report, police report) established a prima facie case and that the defendant submitted no evidence creating a triable issue. The court also allowed the complaint to be conformed to proof to include the STD transmission claim and ordered a trial solely on damages.

The Appellate Division modified a Bronx Supreme Court order to grant the New York City Housing Authority's motion to strike new claims in plaintiff Henriquez's supplemental bills of particulars and otherwise affirmed the lower court's denial of plaintiff's request to amend her notice of claim and complaint. Henriquez, injured by smoke from an alleged apartment fire, had timely filed a notice of claim alleging negligence for permitting an illegal generator. After the statute of limitations, she added distinct theories alleging violations of multiple fire, administrative, and penal code provisions. The court held those new theories were not fairly implied by the original notice and therefore were barred.

The Appellate Division, First Department affirmed a Supreme Court (Bronx County) judgment directing a disciplinary hearing under Civil Service Law § 75(1)(c) for petitioner Joshua Clemente, who had been discharged by the Bronx County District Attorney. The court rejected Clemente’s claim for immediate full back pay, explaining that any entitlement to back pay (which may begin 30 days after suspension) and offsets (such as other earnings or unemployment benefits) must be determined at the § 75(3) hearing. The court rejected the remaining arguments and affirmed without costs.

The Appellate Division, First Department reversed a lower court dismissal and partially granted a CPLR 7803(3) petition by NYPD sergeants who challenged DCAS determinations that their promotional exam answers not be scored because they used cell phones before being dismissed. The court found the agency's application of an ambiguous test-taking rule — forbidding cell phone use “before, during and after” the test — to be irrational, especially given uncertainty about when the exam ended and inconsistent agency statements about the rule’s scope. The case is remanded to Supreme Court for further proceedings, with the aspects of the determinations vacated and respondents ordered to answer petitioners’ requests for relief.

The Appellate Division, First Department affirmed a trial court order vacating a prior summary-judgment ruling in favor of MIC General Insurance Corporation and, upon vacatur, denying the insurer summary judgment. The court held the trial judge correctly found a reasonable excuse for the default and that questions of fact exist about whether the insured property and relationships fit the policy terms “residence” and “household.” Because the policy terms are not defined and ambiguities are construed against the insurer, the court concluded summary judgment was improper and also affirmed denial of the insurer’s motion to renew.

The Appellate Division, First Department, reviewed a Family Court order entered after the mother defaulted at a fact-finding hearing in a neglect proceeding concerning her child. Because the mother's attorney, after consulting with the absent mother, declined to contest the allegations at the final hearing, the court held that no appeal lies from an order entered on default and dismissed the appeal of the neglect finding. The court nevertheless reviewed and affirmed the denial of the mother's request for an adjournment, finding no abuse of discretion given the repeated prior adjournments, adequate notice, and the mother's choice to travel instead of attending the hearing.

The Appellate Division, First Department affirmed a Supreme Court order denying Amanda Spina Lurie’s CPLR Article 78 petition challenging the New York City Department of Education’s August 23, 2023 determination terminating her employment. The court held DOE’s finding of time theft and time fraud over nearly two years was rationally supported by the record and not arbitrary or capricious. The court declined to consider evidence and news articles not presented to the agency and found Lurie’s argument that termination was conscience-shocking to be unpreserved because it was not raised below.

The Appellate Division dismissed Amira Lebda’s appeal from a Supreme Court order that denied her CPLR article 78 petition seeking grade changes and reinstatement at Touro College School of Education. The court unanimously dismissed the appeal for failure to perfect the record on appeal because petitioner did not include her underlying complaint to the New York State Division of Human Rights or the DHR determination that formed the basis of the Article 78 proceeding. The court explained that without those materials meaningful appellate review was impossible and therefore declined to reach the merits.

The Appellate Division modified a Family Court order concerning custody-related communications and confidentiality after a hearing. The court vacated the requirement that the mother disclose her residential address to the father and remanded for a hearing on the mother's pending request for address confidentiality. It also vacated the provision allowing the father to communicate with and participate in the child’s therapy, remanding for further proceedings (including possible independent evaluation or preparatory therapy). The court allowed limited indirect contact (cards/gifts/letters) but required those communications be reviewed by the attorney for the child and routed through that office while confidentiality is pending.

The First Department affirmed the denial of ExxonMobil's motion to dismiss claims by former InterOil shareholders who allege ExxonMobil manipulated post-closing appraisals to reduce contingent payments. The court held plaintiffs now have standing because one plaintiff acquired enough Escrow Verification Receipts (EVRs) after the Contingent Resource Payment Agreement (CRPA) terminated to meet the contract's Required Holder threshold. The court found transfer restrictions in §§ 3.03 and 3.04 did not survive termination under § 8.11, so EVRs were freely transferable post-termination, and the complaint therefore survives dismissal on standing grounds.

The Appellate Division, First Department affirmed a Bronx County Supreme Court order denying defendants' motion to disqualify the Grigoropoulos Law Group (GLG) from representing plaintiff in a personal-injury action arising from a 2019 vehicle collision. GLG initially represented both plaintiff and driver Santos, obtained a written conflict waiver, and later withdrew for Santos when Santos's position became adverse and proceeded to represent only the plaintiff. The court found defendants waived the disqualification claim by delaying about three years, the written waiver adequately warned of potential conflicts and withdrawal, and there was no evidence that confidential information obtained during GLG's brief representation of Santos was used to plaintiffs' advantage.

The Appellate Division, First Department affirmed a Bronx Supreme Court order denying defendants' motion to disqualify plaintiff's counsel, the Grigoropoulos Law Group (GLG). The dispute arose from GLG's brief, joint-retainer representation of both plaintiff and defendant Santos after a 2019 motor vehicle accident; GLG later withdrew from representing Santos and continued for the plaintiff. The court found defendants had waived any conflict by delaying three years to move for disqualification, that the signed conflict waiver adequately informed both clients of potential adverse positions, and there was no evidence confidential information obtained from Santos was used to the defendants' prejudice.

The Appellate Division, First Department, unanimously affirmed the Bronx County Supreme Court judgment entered December 20, 2022, in the criminal case against Jose Cabrera. The appeal challenged the conviction and/or sentence, but the appellate court found the sentence was not excessive after briefing and oral argument. The court issued a brief decision and order affirming the judgment and referred appellant's counsel to the court's Rule 606.5 regarding appellate counsel obligations or procedures.

The Appellate Division, First Department affirmed a Bronx County conviction and sentence. Defendant Kshawn Bowers pleaded guilty to petit larceny and was sentenced to three years' probation. The court held his appellate waiver was valid and therefore foreclosed review of his excessive-sentence claim, and it found no basis to reduce the sentence. The court declined to reach a preserved constitutional challenge to a probation condition in the interest of justice but, alternatively, rejected that challenge on the merits. It upheld a nonconstitutional challenge to the same probation condition as reasonably related to rehabilitation.

The Appellate Division, First Department affirmed the trial court's order denying plaintiff's motion for summary judgment and granting defendants' motions to dismiss her complaint. Plaintiff, a shareholder in an HDFC co-op, claimed the co-op and its managers delayed providing board minutes and financials, causing her to lose a prospective buyer and giving rise to breach of contract, tortious interference, and conspiracy to commit fraud claims. The court held defendants provided records within a reasonable time, plaintiff produced no evidence the prospective buyer met statutory income qualifications for an HDFC unit, and she therefore failed to show damages or underlying fraud.

The Appellate Division, First Department, unanimously affirmed defendant Melshawn Johnson's conviction following a jury trial for second-degree assault and third-degree criminal possession of a weapon and affirmed his 6-year aggregate sentence. The court rejected preserved and unpreserved evidentiary challenges, finding pretrial-hearing and limiting-instruction claims waived or harmless where the challenged testimony provided relationship context, had minimal prejudice, and the conviction rested on overwhelming evidence (grand jury testimony, video, medical and DNA evidence). The court also declined to reach most ineffective-assistance claims on direct appeal and held that no jury charge on the lesser reckless third-degree assault was warranted.

The First Department affirmed defendant Emanuel Ford’s conviction and four-year sentence for second-degree criminal possession of a weapon following his guilty plea. The court upheld the denial of Ford’s motion to dismiss the indictment for preindictment delay, finding the roughly 3½-year delay was justified because prosecutors lacked sufficient evidence initially to prove identity beyond a reasonable doubt. When new evidence (a recovered gun linked to an associate and an officer familiar enough to identify Ford on surveillance) became available, the People properly pursued charges. The court found no bad faith or demonstrable prejudice from the delay.

The Appellate Division, First Department affirmed a judgment convicting Thomas Nicholas, who had pleaded guilty to first-degree criminal possession of stolen property and was sentenced to 1 to 3 years. The court declined to review Nicholas's claim that his plea was involuntary based on an allegedly inaccurate description of his potential sentence because he failed to preserve the issue, and it also declined to reach ineffective assistance of counsel claims on direct appeal since those require facts outside the record. As an alternative, the court found the plea voluntary on the totality of the circumstances and that counsel’s assistance, insofar as the record shows, met legal standards.