Ellen Frances Gesmer

This case concerns a post-divorce custody and support dispute in which the mother sought pendente lite child support after an earlier order had suspended the father's obligation. The court had previously found, after a lengthy trial, that the mother had engaged in severe parental alienation, justifying suspension of support under established case law allowing such measures for interference with visitation or constructive emancipation. The Appellate Division affirmed the denial of the mother's motion, reasoning that she failed to demonstrate compliance with the conditions for resuming support or any exigent circumstances warranting modification, and that she had not appealed the original suspension order. The decision clarifies that Domestic Relations Law § 241, which addresses maintenance, does not preclude judicially developed rules for suspending child support.

family law

This case involved a mother's petition in New York Family Court to modify a 2015 custody and visitation order originally issued by a Texas court after she moved with the child to New York. The father appealed the Family Court's grant of the petition, contending that New York lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act. The Appellate Division reversed the order, vacated it, and remanded the matter, holding that New York courts could not modify the Texas order without the Texas court ceding jurisdiction or both parents and child no longer residing there, and that the court had not properly exercised temporary emergency jurisdiction by communicating with the Texas court or limiting the order's duration.

family lawprocedure

This case involved a mother's petition in New York Family Court to modify a 2015 custody and visitation order originally issued by a Texas court after she moved with the child to New York. The father appealed the Family Court's grant of the petition, contending that New York lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act. The Appellate Division reversed the order, vacated it, and remanded the matter, holding that New York courts could not modify the Texas order without the Texas court ceding jurisdiction or both parents and child no longer residing there, and that the court had not properly exercised temporary emergency jurisdiction by communicating with the Texas court or limiting the order's duration.

family lawprocedure

This case involved a petition under New York's Mental Hygiene Law article 10 to revoke the release of D.M., a convicted sex offender, from strict and intensive supervision and treatment (SIST) in the community and to order his civil commitment to a secure facility. D.M. had a history of sexual offenses against children dating back to the 1970s and 1980s, was diagnosed with pedophilic disorder and antisocial personality disorder, and had previously been confined before being released under SIST in 2021. The Supreme Court found after a hearing that D.M. repeatedly and flagrantly violated multiple SIST conditions, including prohibited contact with minors, missing sex offender treatment sessions, and GPS monitoring issues. The Appellate Division affirmed, holding that the violations supported the determination that D.M. was a dangerous sex offender requiring confinement.

criminal law

The case involved the City of New York seeking to seize and forfeit a food vendor's truck after he was fined $2,600 for unlicensed vending and related health code violations. The lower court denied the City's motion for summary judgment and scheduled a hearing. The Appellate Division affirmed, holding that material questions of fact existed as to whether the forfeiture provisions were at least partly punitive in nature and thus subject to the excessive fines clauses of the U.S. and New York Constitutions, and whether the forfeiture would be grossly disproportionate to the offense.

criminal lawpropertyprocedure

This case involved a Family Court neglect proceeding where the Administration for Children's Services (ACS) filed a petition alleging that the father had neglected the child by committing domestic violence against the nonrespondent mother in the child's presence. ACS requested, and the court initially granted, a temporary release of the child to the mother along with an order placing her under ACS supervision, even though the child had remained in her care and no safety concerns were raised about her. The mother appealed after a later order vacated the supervision requirement. The Appellate Division affirmed, holding that Family Court Act § 1017 and other provisions do not authorize ACS supervision of a nonrespondent parent already caring for the child, including when the parent is a domestic violence survivor, and that ACS's policy of monitoring such parents lacks statutory basis.

family law

This case involved a Family Court neglect proceeding where the Administration for Children's Services (ACS) filed a petition alleging that the father had neglected the child by committing domestic violence against the nonrespondent mother in the child's presence. ACS requested, and the court initially granted, a temporary release of the child to the mother along with an order placing her under ACS supervision, even though the child had remained in her care and no safety concerns were raised about her. The mother appealed after a later order vacated the supervision requirement. The Appellate Division affirmed, holding that Family Court Act § 1017 and other provisions do not authorize ACS supervision of a nonrespondent parent already caring for the child, including when the parent is a domestic violence survivor, and that ACS's policy of monitoring such parents lacks statutory basis.

family law

The case concerned a child removed from her mother's care shortly after birth in 2019 pursuant to a neglect petition filed by the Administration for Children's Services, based on alleged exposure to domestic violence involving the putative father. After the neglect petition was dismissed against the mother in 2022, the Family Court nevertheless continued the child's foster care placement through a dispositional hearing on the father's case, approved a permanency goal of return to parent, and dismissed the mother's habeas corpus petition seeking the child's return. The Appellate Division reviewed whether the Family Court retained jurisdiction to extend foster care after dismissal of the petition against the mother from whose care the child was removed, applying precedents such as Nicholson v. Scoppetta and Jamie J. that limit presumptive removal in domestic violence cases and restrict jurisdiction once the relevant petition is dismissed.

family lawprocedure

The case concerned a child removed from her mother's care shortly after birth in 2019 pursuant to a neglect petition filed by the Administration for Children's Services, based on alleged exposure to domestic violence involving the putative father. After the neglect petition was dismissed against the mother in 2022, the Family Court nevertheless continued the child's foster care placement through a dispositional hearing on the father's case, approved a permanency goal of return to parent, and dismissed the mother's habeas corpus petition seeking the child's return. The Appellate Division reviewed whether the Family Court retained jurisdiction to extend foster care after dismissal of the petition against the mother from whose care the child was removed, applying precedents such as Nicholson v. Scoppetta and Jamie J. that limit presumptive removal in domestic violence cases and restrict jurisdiction once the relevant petition is dismissed.

family lawprocedure

In People v. Sparks, the defendant, who had an extensive history of severe mental illness including multiple psychotic disorders and prior periods of solitary confinement, pleaded guilty to third-degree robbery and was sentenced as a second felony offender to three to six years in prison. On appeal, the Appellate Division, First Department, exercised its discretion in the interest of justice under CPL 470.15 to reduce the sentence to the statutory minimum of two to four years. The majority reasoned that the original sentence was unduly harsh given the defendant's documented psychiatric conditions, repeated failures to obtain treatment after release, and the abusive conditions he endured while incarcerated, which undermined the goals of rehabilitation and societal protection. A dissent argued that the negotiated sentence appropriately balanced the defendant's background with the nature of the offense and the interests of the victim and public.

criminal lawprocedure

In People v. Sparks, the defendant, who had an extensive history of severe mental illness including multiple psychotic disorders and prior periods of solitary confinement, pleaded guilty to third-degree robbery and was sentenced as a second felony offender to three to six years in prison. On appeal, the Appellate Division, First Department, exercised its discretion in the interest of justice under CPL 470.15 to reduce the sentence to the statutory minimum of two to four years. The majority reasoned that the original sentence was unduly harsh given the defendant's documented psychiatric conditions, repeated failures to obtain treatment after release, and the abusive conditions he endured while incarcerated, which undermined the goals of rehabilitation and societal protection. A dissent argued that the negotiated sentence appropriately balanced the defendant's background with the nature of the offense and the interests of the victim and public.

criminal lawprocedure

The case involved Keith Woody's conviction after a jury trial for burglary in the second and third degrees and resisting arrest, based on his entry into buildings while fleeing police officers who had observed a bulge in his pocket and were aware of his prior firearm conviction and an active parole warrant. The Appellate Division reversed the conviction and remanded for a new trial. The court held that the trial court erred in granting the People's Molineux application to admit evidence of Woody's prior attempted criminal possession of a weapon conviction, as this evidence was not necessary to explain the officers' actions or the scale of the police response and served only to demonstrate the defendant's propensity to commit crimes, thereby depriving him of a fair trial. The decision emphasized that the prosecution could have relied on other evidence, such as the observed bulge and the defendant's flight, without introducing the prior conviction.

criminal lawprocedure

In People v. Woody, the defendant was convicted after a jury trial of burglary in the second and third degrees and resisting arrest, based on events following a police attempt to arrest him on a parole warrant, during which he entered two buildings while fleeing. The Appellate Division reversed the conviction, holding that the trial court erred in granting the People's Molineux application to admit evidence of the defendant's prior conviction for attempted criminal possession of a weapon. The court reasoned that this evidence was not necessary to explain the officers' actions or the police response, as other evidence like the observed bulge and parole status could suffice, and its admission primarily served to demonstrate the defendant's propensity to commit crimes, violating his right to a fair trial.

criminal lawprocedure

This case is a divorce action between William S. Culman and Marianne Boesky involving the equitable distribution of numerous marital and separate assets, including art collections, businesses such as Art Works Inc. and M&E LLC, real properties in Chelsea and Aspen, life insurance policies, and other personal property. After a nonjury trial, the trial court awarded the plaintiff varying percentages of the marital appreciation or value of these assets, directed payment of illiquid shares over four years at 3% interest, and granted $320,000 in counsel fees. On appeal, the Appellate Division modified the distribution by increasing the plaintiff's shares in certain assets like Art Works Inc. and the Chelsea property, awarding a separate property credit to the defendant for M&E LLC, eliminating any award for the AXA policy appreciation, and otherwise affirmed the judgment. The core reasoning was that the trial court had appropriately applied precedents to the complex estate but that adjustments were needed based on the parties' relative contributions, tax consequences, and the nature of each asset to achieve an equitable result.

family lawproperty

This case is a divorce action in which the parties disputed the valuation and equitable distribution of numerous marital assets, including artwork, the defendant's business Art Works Inc., real properties in Chelsea and Aspen, an LLC, a life insurance policy, and other personal property. After a nonjury trial, the trial court awarded the plaintiff varying percentages of the marital appreciation or value of these assets, plus counsel fees, and directed payment terms for illiquid assets. On appeal, the Appellate Division modified the judgment to increase the plaintiff's shares in Art Works Inc. to 15%, M&E LLC to 15% after a separate property credit, the Chelsea property to 30%, the Aspen condominium to 40%, and the defendant's art collection to 15%, while eliminating any award for the life insurance appreciation and otherwise affirming the distribution. The court reasoned that the trial court's allocations required adjustment based on the relative contributions of the parties, proper crediting of separate property, and relevant precedents regarding marital versus separate assets.

family lawproperty