Note: Before Relying On Any Decision Summarized on this Site, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” Below.
Note: The Easiest Way to Save a Search Result Is to Highlight It and then Copy and Paste into a Word Document. All the Links Remain Functional in the Word Document.
The search function can be used to get caught up on what all the courts have ruled on so far this year, or what any specific court has ruled on so far this year, or what any court has ruled on during any time period, going back weeks, months or years. Just add the “start” and “end” dates to your searches (the third and fourth lines in the search panel on the right side of the page).
In the posts “Just Released,” “Streamlined Research” and “Update Service,” how to do (1) searches in all legal categories, (2) searches in specific categories, (3) searches using keywords and phrases, and (4) searches confined to specific courts, is explained in some detail. Use the “start” and “end” date criteria to confine any of those types of searches to a specific time period.
If, for example, you want to see what the Fourth Department has addressed in the category “Criminal Law” in 2024, click on “Criminal Law” in the drop-down menu in the Search Panel (revealed when you click on “All Categories”), choose January 1, 2024, as the start date, choose today as the end date, click on “Fourth Department” in the Search Panel menu and click on “Search.”
If you want to see what the Court of Appeals ruled on this year in all categories, leave “All Categories” in the top line of the search panel, choose January 1, 2024, for the start date and today for the end date, click on “Court of Appeals” in the search panel menu and click on “Search.”
Any type of search can be confined to any specific time period between January 1, 2013, and today.
For more on this “personalized update service” capability, click on “Update Service.”
THE FOIL REQUEST FOR RESPONDENT’S RECORDS FOR ALL CERTIFIED POLICE OFFICERS COULD REVEAL THE IDENTITIES OF UNDERCOVER OFFICERS; THEREFORE THE REQUEST SHOULD HAVE BEEN DENIED; TWO-JUSTICE DISSENT (THIRD DEPT).
The Third Department, reversing Supreme Court, over a two-justice dissent, determined the reporter’s FOIL request seeking records for all certified police officers from respondent’s central registry of police officers and peace officers should not have been granted because the records include undercover officers:
The in camera submissions reveal that, unlike the state registry, at least one police agency omits from its own public payroll database certain information about certified officers working undercover or in sensitive assignments to protect their safety and preserve confidentiality; again, the police agency submits information about those same officers to the state registry. This distinction in how respondent and a local law enforcement agency account for undercover officers would be evident to one who compares the department’s public payroll database to the list attributed by the state registry to that agency. Simply put, comparing the state registry to a local department’s publicly disclosed payroll database could reveal names of undercover officers that appear on the state registry but not on their employer’s redacted payroll database. Thus, respondent demonstrated that disclosure of the registry could endanger police officers who could be presumptively revealed by name as working undercover, thereby satisfying its burden to trigger the exemption under Public Officers Law § 87 (2) (f). Matter of Munson v New York State Div. of Criminal Justice Servs., 2026 NY Slip Op 02017, Third Dept 4-2-26
A MORE PROBING INQUIRY BY THE JUDGE WAS REQUIRED TO ENSURE THE MENTALLY DISABLED DEFENDANT UNDERSTOOD THE CONSEQUENCES OF HIS ALFORD PLEA, PLEA VACATED (THIRD DEPT).
The Third Department, reversing defendant’s conviction by Alford plea, in a full-fledged opinion by Justice Reynolds Fitzgerald, determined a more probing inquiry by the judge was required to determine whether the plea was knowing and intelligent. Defendant had been found incompetent to stand trial twice before being found mentally competent to stand trial:
While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights” … . “People with intellectual disabilities possess diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. . . . These traits render people with intellectual disabilities uniquely vulnerable to injustice within criminal proceedings. . . . [Therefore], a court must account for [a defendant’s] diminished mental capacity in ensuring that any waiver of constitutional rights is knowing, intelligent and voluntary” … .
As defendant was twice determined to be incompetent to stand trial and had received four years of treatment before he was deemed competent to participate in his defense, County Court was aware of defendant’s intellectual disabilities. Notwithstanding the determination that defendant was competent to stand trial, the third psychiatric evaluation report cast serious doubts on defendant’s ability to enter a knowing and voluntary plea. The report indicates that on defendant’s most recent cognitive assessment he “achieved a [f]ull-[s]cale IQ of 59, indicative of abilities consistent with a [m]ild [i]ntellectual [d]isability.” Additionally, he “achieved an [a]daptive [b]ehavior [c]omposite of 68, consistent with [the] upper end of the ‘low’ range of daily living skills.” The psychologist further noted that defendant was “rather immature in his understanding of the severity of his charges and the chances that he could have significant consequences — such as jail time.” More importantly, during the evaluation, defendant repeatedly alleged that his counsel had reassured him that he will not be going to jail and, in fact, “express[ed] strongly held beliefs that he will not be sent to jail due to his personal circumstances of having a disability and being young when the offenses were allegedly committed. These beliefs are likely related to his relative youth and mental health difficulties, several of which make it difficult for [defendant] to relate to others successfully, accept social norms and expectations, or respect interpersonal boundaries. These beliefs are unlikely to change with additional education or training.”
Under these circumstances, “[a] more probing inquiry was warranted here to ensure that defendant understood the constitutional rights he was waiving, given his significant intellectual disability” … . As there is no affirmative showing on the record that defendant understood and voluntarily waived his constitutional rights when he entered his guilty plea, the judgment of County Court convicting defendant of manslaughter in the first degree and sentencing defendant thereon should be reversed, the plea vacated and the matter remitted for further proceedings … . People v Oldorff, 2026 NY Slip Op 02004, Third Dept 4-2-26
Practice Point: Where the defendant is mentally disabled and has previously been found incompetent to stand trial, before accepting a guilty plea, a probing inquiry by the judge is required to ensure the defendant understands the consequences.
ALTHOUGH THE CONVICTIONS WERE SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE THE CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT).
The Third Department, reversing defendant’s convictions, determined the evidence was legally sufficient but the convictions were against the weight of the evidence:
People’s accomplice theory supporting counts 2 through 7 against defendant was that the video surveillance footage depicted the gun being handed off before the shooting. However, the video footage is dark and pixelated, and the brother’s body obscures part of the interaction, making it impossible to discern whether defendant and the codefendant exchanged a handgun — let alone anything — without resorting to speculation, which cannot be the basis for defendant’s guilt beyond a reasonable doubt … . Nor is there anything in the record to suggest that this codefendant was aware that defendant had a gun, as none of the witnesses testified that he was present when defendant had displayed the gun at the mother’s residence. To this point, the codefendant’s lack of knowledge combined with the testimony that he threatened to return and shoot the victim creates the reasonable inference that he already had access to a gun of his own. Accordingly, given the lack of record support to establish beyond a reasonable doubt that defendant solicited, requested, commanded, importuned or intentionally aided another individual to possess and use a firearm in commission of the offenses charged under counts 2 through 7, we reverse these convictions as against the weight of the evidence … .
Relating to the weapon charges under counts 8 and 9, multiple witnesses testified that defendant was seen with a handgun only while at the mother’s residence. However, since the evidence fails to demonstrate that the shooting was committed with the same gun, it so follows that the record also fails to establish beyond a reasonable doubt that defendant intended to use the gun he was seen with “unlawfully against another” as charged by the indictment (Penal Law § 265.03 [1] [b]). Further, although defendant did not possess the requisite gun permit and was outside of his home or place of business, the People cannot establish operability of the handgun that defendant was seen with at the mother’s residence before the shooting either … . People v Bowden, 2026 NY Slip Op 02003, Third Dept 4-2-26
Practice Point: Consult this decision for an example of convictions supported by legally sufficient evidence but against the weight of the evidence.
AN ANONYMOUS RADIO TRANSMISSION PROVIDED THE COLOR, MAKE, LOCATION AND LICENSE PLATE NUMBER OF A CAR WHICH WAS ALLEGED TO HAVE BEEN CARJACKED; THE POLICE OFFICERS FORCIBLY STOPPED THE CAR BEFORE VERIFYING THE LICENSE PLATE NUMBER; THE POLICE DID NOT HAVE “REASONABLE SUSPICION” AT THE TIME OF THE STOP (FIRST DEPT).
The First Department, reversing Supreme Court, determined that the forcible stop of the vehicle defendant was driving was not supported by “reasonable suspicion.” The stop was based upon an anonymous radio transmission. The transmission provided the color, make, license plate number and location of a vehicle which had been carjacked. The police saw a vehicle matching the description in a parking lot but did not verify the license plate number until after the forcible stop:
… [T]he arresting officer testified that at approximately 12:30 a.m. on June 30, 2016, he and his partner received a radio transmission that a black Toyota with Pennsylvania license plate JCS1537 had been carjacked, the car was being tracked in real time, and its current location was near West 165th Street and Amsterdam Avenue in Manhattan. No evidence was presented as to the basis for the transmission or how the vehicle was being tracked. The officers responded to that location and saw a man standing by the trunk of a black Toyota with his hands by his waist in an open-air parking lot. A parking lot attendant confirmed that a black Toyota with Pennsylvania license plate had recently entered the lot. The officers then saw the black Toyota trying to exit. The officer stopped the car by drawing his gun, putting his hand up, and telling it to stop. The officer noticed that the Toyota had no front plate, which was not required in Pennsylvania, and a parking receipt on the windshield for the same license plate number as the stolen vehicle. * * *
The police officer’s testimony failed to provide any information that would have corroborated the anonymous radio transmission. Without knowing the source or nature of the tip with respect to either the carjacking report or the real-time tracking, the forcible stop was not justified by a reasonable suspicion … . The testimony that defendant was standing near the trunk of a black Toyota in a parking lot was not corroborative since such conduct was neither unlawful nor suspicious. The officer’s testimony indicated that he only noticed the lack of the front license plate and parking receipt reflecting a matching license number with the carjacked vehicle after he had already forcibly stopped defendant. Thus, this corroborating information cannot justify the officer’s actions … . People v Martinez-Jaquez, 2026 NY Slip Op 02045, First Dept 4-2-26
Practice Point: Consult this decision for insight into the corroboration required before the police can act on an anonymous tip.
A PLAINTIFF NEED NOT SUBMIT ANY EVIDENCE IN OPPOSITION TO A MOTION TO DISMISS AS OPPOSED TO A MOTION FOR SUMMARY JUDGMENT; HERE THE COMPLAINT STATED CAUSES OF ACTION FOR MEDICAL MALPRACTICE AND LACK OF INFORMED CONSENT; CRITERIA EXPLAINED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the motion to dismiss the medical malpractice complaint should not have been granted, noting that a plaintiff need not present any evidence in opposition to a motion to dismiss, as opposed to a motion for summary judgment:
Supreme Court improperly granted the motion of [defendants] pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against them based on the plaintiff’s failure to comply with the court’s earlier directive “to provide an affidavit from a physician attesting [to] the merits of her claims.” The burden does not shift to the nonmoving party on a motion pursuant to CPLR 3211(a)(7). A plaintiff need not make an evidentiary showing in support of the complaint in order to defeat such a motion and will not be penalized for failure to do so … . Here, where the motion was not converted into one for summary judgment, the plaintiff had no obligation to provide an affidavit from an expert to support the allegations in the amended complaint in order to defeat the [defendants’] motion … . * * *
… [A]ccepting the allegations in the amended complaint as true and according the plaintiff the benefit of every possible favorable inference, the amended complaint sufficiently stated causes of action alleging medical malpractice and lack of informed consent … . Wilber v Borgen, 2026 NY Slip Op 02001, Second Dept 4-1-26
Practice Point: A plaintiff need not submit any evidence in opposition to a motion to dismiss the complaint. Here the judge should not have granted the motion on the ground the plaintiff did not comply with the court’s directive to submit an affidavit from a physician.
SUPREME COURT’S GRANTING OF DEFENDANTS’ SUPPRESSION MOTIONS REVERSED IN THIS TRAFFIC STOP CASE; THE REPORT THAT THE VEHICLE HAD BEEN INVOLVED IN AN ARMED ROBBERY THAT DAY AND THE DEFENDANTS’ LACK OF COOPERATION AT THE TIME OF THE STOP JUSTIFIED BREAKING THE VEHICLE’S WINDOWS, REMOVING THE DEFENDANTS AND HANDCUFFING THEM; OBSERVING A FIREARM IN THE VEHICLE PROVIDED PROBABLE CAUSE TO ARREST (SECOND DEPT).
The Second Department, reversing Supreme Court’s suppression of evidence seized during a traffic stop, over a dissent, determined the police had reasonable suspicion to stop the vehicle and exigent circumstances justified the search of a defendant’s fanny pack. The dissent disagreed about the legitimacy of the search of the fanny pack:
… [T]he police officers had reasonable suspicion to stop the vehicle based upon the fact that the description of the vehicle matched that of a vehicle that had been involved in an armed robbery earlier that day, and the vehicle’s location had been detected by a license plate reader approximately five minutes prior to the stop … . Moreover, the actions of the police officers in drawing their guns and ordering the defendants out of the vehicle were justified under the circumstances as appropriate measures to ensure their safety … . Additionally, when the defendants failed to cooperate with the officers’ instructions, the officers acted appropriately in breaking the vehicle’s “excessive[ly] . . . tint[ed]” front windows for their own safety and then in removing the defendants from the vehicle and placing them in handcuffs … . The police thereafter had probable cause to arrest the defendants once the officer observed a firearm in plain view in the compartment of the driver’s side door of the vehicle … .
… [T]he subsequent search of Rivera’s fanny pack was justified as a search incident to a lawful arrest … . * * *
“Under the State Constitution, to justify a warrantless search incident to arrest, the People must satisfy two separate requirements” … . “The first imposes spatial and temporal limitations to ensure that the search is ‘not significantly divorced in time or place from the arrest'” … . “The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances” … . …
… The police were notified that a vehicle matching the description of the subject vehicle was involved earlier the same day in a gunpoint robbery in Brooklyn. … [A]fter the vehicle was boxed in by police vehicles, the occupants tried to escape the scene in the vehicle and continually refused the officer’s directives to lower the heavily tinted car windows or exit the vehicle. People v David, 2026 NY Slip Op 01980, Second Dept 4-1-26
Practice Point: Here Supreme Court granted defendants’ suppression motions and the Appellate Division reversed finding (1) the guns-drawn traffic stop, (2) the breaking of the vehicle’s windows, (3) the removal of defendants from the vehicle, (4) the handcuffing of the defendants, and (5) the arrest of the defendants upon observing a firearm in the vehicle, were constitutionally justified.
THE POLICE OBSERVED A GROUP OF PEOPLE CHASING THE DEFENDANT AND ESSENTIALLY JOINED IN WITHOUT ANY KNOWLDEDGE OF THE UNDERLYING CIRCUMSTANCES; THE WEAPON SEIZED IN THE STREET STOP SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).
The Second Department, reversing defendant’s criminal possession of a weapon conviction (after trial) and dismissing the indictment, determined the police who participated in the foot chase and street stop of the defendant did not have the requisite “reasonable suspicion.” The police (in civilian clothes) saw a group of people chasing the defendant and essentially simply joined in the chase without any knowledge of the underlying circumstances. The seized firearm should have been suppressed:
… [T]he People failed to meet their burden of establishing the legality of the pursuit of the defendant, as the police lacked reasonable suspicion that the defendant had committed, was committing, or was about to commit a crime … . Neither Hain’s [the officer’s] observation of the defendant running away from a “group of civilians” chasing him, nor the female voice saying “that’s him, he’s getting away, grab him,” without reference to any specific acts, were sufficient to confer reasonable suspicion that the defendant was engaged in criminal activity, as opposed to the defendant being the victim of criminal activity or having no connection to any criminal activity … . Hain acknowledged that “I wasn’t sure exactly what was going on at the time,” and that the group could have been chasing the defendant “for anything.” Further, Hain’s vague testimony that when the group caught up to the defendant, he observed the defendant and a female individual “engaged in some sort of physical altercation,” which he described as “tussling, pulling back and forth at each other,” was insufficient, absent any details, to satisfy the People’s burden of establishing reasonable suspicion that the defendant was engaged in criminal activity. Hain acknowledged that “I don’t know if [the defendant] was defending himself,” and he did not testify that the defendant ever struck the female individual or engaged in any conduct constituting an assault or other criminal activity. Therefore, it cannot be determined from Hain’s testimony elicited at the hearing whether the defendant was merely trying to pull away from the female individual to continue running away after she and the group caught up to him.
Thus, Hain’s observations did not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion necessary to lawfully pursue the defendant, even when coupled with the defendant’s flight … . People v Alberto, 2026 NY Slip Op 01976, Second Dept 4-1-26
Practice Point: Here the police saw a group of people chasing the defendant and joined in without any knowledge of the underlying circumstances. Therefore the street stop was not justified by “reasonable suspicion.”
SUMMARY JUDGMENT DISMISSING THE “UNDUE INFLUENCE” OBJECTION TO PROBATE OF A WILL SHOULD NOT HAVE BEEN GRANTED; CRITERIA EXPLAINED (SECOND DEPT).
The Second Department, reversing Surrogate’s Court, noted that summary judgment is rarely appropriate where a party’s undue influence on the decedent is alleged as an objection to probate of a will:
… Surrogate’s Court should not have granted that branch of the petitioners’ motion which was for summary judgment dismissing the objection based on undue influence on the part of Theodos. “To invalidate an instrument on the ground of undue influence, there must be evidence that the influence exerted amounted to a moral coercion that restrained independent action and destroyed free agency or that, by importunity that could not be resisted, constrained a person to do that which was against his or her free will and desire, but which he or she was unable to refuse or too weak to resist” … . “In general, the burden of proving undue influence rests with the party asserting its existence” … . “An inference of undue influence, requiring the beneficiary to explain the circumstances of the bequest, arises when a beneficiary under a will was in a confidential or fiduciary relationship with the testator and was involved in the drafting of the will” … . “The adequacy of the explanation presents a question of fact for the jury” … . The existence of a confidential relationship is also “ordinarily . . . a question of fact” … .
Here, the record reflects that Theodos was assisting in the management of the decedent’s finances in the years leading up to the execution of the will and that certain provisions of the will were communicated to the decedent’s attorney through Theodos. In addition, Theodos was named as one of the executors of the will and was also named as a beneficiary, receiving a bequest of $20,000. As such, an inference of undue influence arises … , and there remain triable issues of fact in that regard … . Matter of Gennarelli, 2026 NY Slip Op 01962, Second Dept 4-1-26
Practice Point: Consult this decision for an explanation of the burden of proof for an “undue influence” objection to probate and why summary judgment is usually inappropriate in this context.
PLAINTIFF IN THIS FORECLOSURE ACTION DELAYED SIX YEARS BEFORE RESTORING THE ACTION TO THE ACTIVE CALENDAR AND FOUR YEARS BEFORE MOVING FOR LEAVE TO ENTER A DEFAULT JUDGMENT; INTEREST ON THE MORTGAGE DEBT SHOULD HAVE BEEN TOLLED FOR THOSE PERIODS (SECOND DEPT).
The Second Department, reversing Supreme Court, determined that interest on the mortgage debt in this foreclosure action should have been tolled because plaintiff failed to explain a six-year delay in restoring the action to the active calendar and its four-year-delay in moving for leave to enter a default judgment:
… Supreme Court should have granted the defendant’s application to toll the accrual of interest on the note from November 1, 2011, to September 13, 2022. “‘A foreclosure action is equitable in nature and triggers the equitable powers of the court'” … .. “‘Once equity is invoked, the court’s power is as broad as equity and justice require'” … . “‘In an action of an equitable nature, the recovery of interest is within the court’s discretion. The exercise of that discretion will be governed by the particular facts in each case, including any wrongful conduct by either party'” … .
Here, the plaintiff failed to explain its six-year delay in moving to restore the action to the active calendar, and further failed to explain its four-year delay in moving for leave to enter a default judgment against the defendant and for an order of reference after the action was restored to the active calendar. Under the circumstances of this case, since the defendant was prejudiced by these unexplained delays, during which time interest had been accruing, the interest on the note should have been tolled from November 1, 2011, to September 13, 2022 … . Greenpoint Mtge. Funding, Inc. v McFarlane, 2026 NY Slip Op 01945, Second Dept 4-1-26
Practice Point: Foreclosure actions are equitable in nature. Here undue delays by the plaintiff warranted tolling the accrual of interest for more than ten years.
PLAINTIFF’S TESTIMONY THAT THE UNSECURED LADDER MOVED SUDDENLY AND TILTED TO THE LEFT WARRANTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).
The Second Department, reversing the Court of Claims, determined plaintiff in this ladder-fall case was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff testify the unsecured ladder moved suddenly and titled to the left:
… [T]he claimant demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). The claimant’s deposition testimony established that the unsecured ladder moved suddenly and tilted to the left, causing him to fall … . In opposition, the defendant failed to raise a triable issue of fact as to whether the claimant’s own acts or omissions were the sole proximate cause of the accident … . Bista v State of New York, 2026 NY Slip Op 01936, Second Dept 4-1-26
Practice Point: A plaintiff’s testimony that the ladder was unsecured and moved suddenly can be sufficient to warrant summary judgment in a Labor Law 240(1) action.
AN UNAVAILABLE WITNESS’S STATEMENT AGAINST PENAL INTEREST CONFESSING TO THE MURDER FOR WHICH DEFENDANT WAS CONVICTED SHOULD HAVE BEEN ADMITTED; NEW TRIAL ORDERED (FOURTH DEPT).
The Fourth Department, reversing defendant’s convictions and ordering a new trial, over a two-justice dissent, determined that the statement against penal interest made by a witness in a post-trial CPL article 440 hearing should have been admitted at trial. The witness essentially confessed to the shooting for which defendant was convicted. At the time of the trial, the witness was unavailable because he asserted his Fifth Amendment privilege against self-incrimination. The trial judge excluded the statement against penal interest on the ground that circumstances independent of the statement itself did not support the statement’s truthfulness and reliability :
… [W]e conclude, based on the circumstances of the witness’s CPL article 440 testimony and the trial record, from which that testimony was absent, that “there is ‘a reasonable possibility that the [testimony] might be true’ ” … . Initially, the witness’s description of the third party shooting at the window from the backyard when the light went on is consistent with the female victim’s testimony that she was shot immediately after she turned on the light and the physical evidence that the shots were fired through the rear window. The witness testified that the third party picked up a .38 firearm, which is consistent with the projectiles recovered from the shooting, from a nearby location just prior to the shooting. The witness’s description of running down the driveway with the third party immediately following the shots, across the street, and then over a backyard fence coincides with a female neighbor’s description in her trial testimony of two men jumping over her back fence. The testimony of a law enforcement witness also corroborated the witness’s account of the two prior robberies described by the witness during his CPL article 440 testimony. Further, there is no evidence that the witness had a familial or close relationship with defendant or other “obvious motive for [the witness] to falsely implicate himself” … .
In light of the more lenient standard applied to exculpatory statements, we conclude that the initial threshold of reliability is met, i.e., that there is a “reasonable possibility that the statement might be true” … . People v Williams, 2026 NY Slip Op 01881, Fourth Dept 3-27-26
Practice Point: Consult this decision for the criteria for admission of a statement against penal interest.
THE MEDICAL MALPRACTICE COMPLAINT DID NOT ALLEGE A LACK OF INFORMED CONSENT; THEREFORE REFERENCES TO A LACK OF INFORMED CONSENT CAUSE OF ACTION IN PLAINTIFFS’ BILL OF PARTICULARS WERE STRICKEN (FOURTH DEPT).
The Fourth Department, reversing (modifying) Supreme Court in this medical malpractice action, determined the hospital’s motion to strike allegations of lack of informed consent should have been granted. That cause of action was not identified in the complaint. Therefore plaintiffs could not use their bill of particulars to assert it:
We agree with the Hospital defendants that the court erred in denying that part of their motion seeking, in effect, to strike the allegations of lack of informed consent from plaintiffs’ amended bill of particulars to the Hospital defendants, and we modify the order accordingly. “[A] bill of particulars is intended to amplify the pleadings, limit the proof, and prevent surprise at trial . . . Whatever the pleading pleads, the bill must particularize since the bill is intended to [afford] the adverse party a more detailed picture of the claim . . . being particularized . . . A bill of particulars may not be used to allege a new theory not originally asserted in the complaint” … . For those purposes, “[l]ack of informed consent is a distinct theory of medical malpractice liability rooted in a specific professional duty to reasonably inform and obtain consent from the patient,” and claims for traditional medical malpractice and lack of informed consent ” ‘comprise[ ] different elements’ ” … . Here, we conclude that “[t]he complaint is based solely on [traditional] medical malpractice and does not contain a separate cause of action for lack of informed consent” … and that a review of the allegations in the complaint does not support the conclusion that the distinct theory of lack of informed consent was ” ‘sufficiently pleaded to avoid surprise and prejudice to [the Hospital] defendants’ ” … . Inasmuch as plaintiffs’ complaint does not presently plead a cause of action for lack of informed consent, the allegations in plaintiffs’ amended bill of particulars relating to lack of informed consent must be stricken … . Heather J. v Rochester Regional Health, 2026 NY Slip Op 01880, Fourth Dept 3-27-26
Practice Point: Here the complaint did not allege a cause of action for lack of informed consent. Therefore references to lack of informed consent in the bill of particulars can be stricken.
ALTHOUGH THE DEFENDANT WAS 33 YEARS OLD AND THE JURY OBSERVED HIM, THE PEOPLE’S FAILURE TO PROVE HE WAS OVER 18 AT THE TIME OF THE CRIMES REQUIRED REVERSAL AND DISMISSAL OF TWO COUNTS; THE ERROR WAS NOT PRESERVED; THE COURT CONSIDERED THE ISSUE IN THE INTEREST OF JUSTICE (FOURTH DEPT).
The Fourth Department, reversing defendant’s convictions of predatory sexual assault of a child and criminal sexual act first degree, determined that, although defendant was in fact 33 years old, the People failed to prove that he was over 18 at the time of the crimes. The errors was not preserved. The appellate court exercised its interest of justice jurisdiction to consider the issue:
Here, two counts in the indictment include an age element that required the People to establish that defendant was at least 18 years old at the time of the crimes in June 2020 … . Defendant was in fact 33 years old in June 2020, and the jury naturally had the opportunity to observe his appearance during the trial in 2021, but that opportunity “does not, by itself, satisfy the People’s obligation to prove defendant’s age” … , and there was no evidence at trial bearing on his age … . We therefore modify the judgment by reversing those parts convicting defendant of predatory sexual assault against a child under count 1 of the indictment and criminal sexual act in the first degree under count 5 of the indictment and dismissing those counts of the indictment. People v Jones, 2026 NY Slip Op 01882, Fourth Dept 3-27-26
Practice Point: If being over 18 at the time of the crime is an element of the offense, the People must prove that element. Here the defendant was 33, but the failure to prove he was over 18 was reversible error. This error will be considered by an appellate court even where it has not been preserved for appeal.
ALLOWING DEFENDANT AND CODEFENDANT TO EXERCISE THEIR SHARED PEREMPTORY CHALLENGES TO PROSPECTIVE JURORS UNILATERALLY WAS REVERSIBLE ERROR (FOURTH DEPT).
The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the trial judge should not have allowed the defendant and the codefendant to exercise their shared peremptory challenges to jurors unilaterally:
… County Court erred in permitting the codefendant to unilaterally exercise peremptory challenges. … The court’s process of allowing defendant and codefendant to each unilaterally exercise their shared peremptory challenges was in violation of CPL 270.25 former (3) and resulted in defendant and codefendant exhausting their shared peremptory challenges before all jurors were selected … . A court’s mistaken denial of a defendant’s peremptory challenge “under New York law mandates automatic reversal” … . People v Jones, 2026 NY Slip Op 01874, Fourth Dept 3-26-26
Practice Point: The court should not have allowed defendant and codefendant to exercise their shared peremptory challenges unilaterally.
PENAL LAW 220.39(1) AND 220.16(1) DO NOT REQUIRE KNOWLEDGE OF THE SPECIFIC DRUG INVOLVED; ONLY KNOWLEDGE THAT THE SUBSTANCE IS A “NARCOTIC DRUG” IS REQUIRED; THEREFORE PENAL LAW 220.16(1) AND 21 USC 841(1)(A) ARE “STRICTLY EQUIVALENT” OFFENSES FOR PURPOSES OF A SECOND FELONY OFFENDER ADJUDICATION (FIRST DEPT)
The First Department, overruling precedent, determined that the knowledge element of Penal Law 220.16(1) (criminal possession of a controlled substance) requires only that a defendant know that the substance is a “narcotic drug” and does not require knowledge that the substance is a specific drug. Therefore Penal Law 220.16(1) is equivalent to 21 USC 841(1)(a) and defendant can be sentenced as a second felony offender based on the prior federal conviction:
… Penal Law § 220.39(1) … [states that] a person is guilty of criminal sale of a controlled substance in the third degree “when he knowingly and unlawfully sells . . . a narcotic drug.” We now hold that the “nature” of the substance possessed under Penal Law § 220.39(1), and under Penal Law § 220.16(1), the statute at issue in the instance case, is, in accordance with the statutory language, “a narcotic drug.” Knowledge of the particular drug possessed is not required. This definition also aligns the knowledge requirement with other decisions of this Court. For example, in People v Martin (153 AD2d 807, 808 [1st Dept 1989], lv denied 74 NY2d 950 [1989]), we held, in a different context, that “Penal Law § 220.16(1) does not distinguish between the types of narcotics possessed, but treats all drugs classified as narcotics interchangeably.”
Under the correct definition of the nature of the substance possessed, defendant’s federal conviction and Penal Law § 220.16(1) are strictly equivalent. People v Jones, 2026 NY Slip Op 01857, First Dept 3-26-26
Practice Point: Here the First Department overruled precedent which held that the knowledge element of drug-possession charges required knowledge of the specific drug involved. Because the knowledge element requires only that a defendant know the possessed substance is a “narcotic drug,” Penal Law 220.16(1) is strictly equivalent to the federal statute 21 USC 841(1)(a) for purposes of a second felony offender adjudication.
ABSENT A MOTION BY A PARTY, SUPREME COURT SHOULD NOT HAVE DISMISSED THE ACTION BASED UPON DEFECTIVE SERVICE (THIRD DEPT).
The Third Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff’s motion to vacate the order dismissing the action should have been granted. The court, sua sponte, dismissed the case because of defective service. However, a dismissal on this ground requires a motion by a party. The dissenters argued the order at issue is not appealable and would have dismissed the appeal:
… CPLR 306-b specifies that “[i]f service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service” (emphasis added). In consideration of this express language, other Departments of the Appellate Division have recognized that a court cannot dismiss a complaint on its own initiative for lack of personal jurisdiction based upon the failure to effect proper service of process … . As the July 2023 order dismissed the underlying action for lack of personal jurisdiction sua sponte, the court erred in doing so absent a motion by one of the parties. On account of that error, the court abused its discretion in denying plaintiff’s instant request that it exercise its discretionary power to vacate that order in the interest of substantial justice … . Plaintiff’s motion seeking to vacate the July 2023 order dismissing the action should therefore be granted and the complaint reinstated. Briggs v Fresenius, 2026 NY Slip Op 01827, Third Dept 3-26-26
Practice Point: A judge cannot, sua sponte, dismiss an action because of defective service. A party must move to dismiss on that ground.
PLAINTIFF WAS STANDING ON AN A-FRAME LADDER WHEN AN ELECTRICAL EXPLOSION CAUSED HIM AND THE LADDER TO FALL TO THE GROUND; THERE WAS NO EVIDENCE THE LADDER WAS DEFECTIVE; BECAUSE PLAINTIFF DID NOT PRESENT ANY EVIDENCE THAT A SAFETY DEVICE WOULD HAVE PREVENTED THE FALL, HE WAS NOT ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).
The First Department, in a full-fledged opinion by Justice Rodriguez, determined plaintiff in this ladder-fall case was not entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was standing on an A-frame ladder when a wire fed in by another worker struck and electric panel causing an explosion. Plaintiff and the ladder fell to the floor. The evidence did not demonstrate the ladder was defective. And plaintiff did not present any evidence that additional safety devices would have prevented the ladder from falling over:
Nazario applies … . … [T]here the plaintiff was not entitled to summary judgment due to the presence of several triable issues of fact (see Nazario, 28 NY3d at 1055). The record … lacked evidence concerning whether the plaintiff “should have been provided with additional safety devices and [whether] the failure to do so was a contributing cause of the accident” … . Summary judgment was appropriately denied, … even though the plaintiff “hung onto the ladder” and the ladder “fell to the ground” with the plaintiff “because it was not secured to something stable” … . As in Nazario, plaintiff here failed to submit any evidence—whether by his own testimony or through an expert opinion—addressing gravity-related safety devices or precautions that might have prevented his fall … . Arias v Brooks Holdings Corp., 2026 NY Slip Op 01841, First Dept 3-26-26
Practice Point: If a plaintiff in a ladder-fall case presents no evidence the ladder itself was defective, summary judgment on the Labor Law 240 (1) cause of action will not be granted unless the plaintiff presents evidence that an additional safety device (which was not provided) would have prevented the fall.
DEFENDANT BUILDING OWNER AND MANAGER WERE ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE UNDER THE STORM-IN-PROGRESS DOCTRINE, 18 INCHES OF SNOW HAD FALLEN LESS THAN TWO HOURS BEFORE; PLAINTIFF SLIPPED AND FELL ON WATER ON STAIRS IN THE LOBBY; PLAINTIFF’S OWN TESTIMONY DEMONSTRATED DEFENDANTS DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT).
The First Department, reversing Supreme Court, determined the defendants (the building owner and manager) were not liable for plaintiff’s slip and fall on water on interior stairs because of the storm-in-progress doctrine:
Defendants, the owner and manager of the building in which plaintiff was injured, established their entitlement to summary judgment by submitting undisputed meteorological data establishing that plaintiff’s accident occurred no more than 1 hour and 50 minutes after cessation of a major winter storm, which resulted in the accumulation of more than 18 inches of snow. Thus, under the storm-in-progress doctrine, defendants’ duty to maintain the lobby in a safe condition was suspended at the time plaintiff slipped and fell on the stairs, as defendants did not have a reasonable amount of time to permit discovery and remediation of the storm-related wet condition … .
Defendants also demonstrated that there were no triable issues of fact as to whether they created the condition or had actual or constructive notice of it. Plaintiff does not maintain that defendants created the hazardous condition. As to notice, plaintiff himself testified that he saw no wet condition or puddles on the stairs when he ascended them approximately 45 minutes before he slipped and fell on the way down; he also testified that only after his fall did he see dirty water on the stairs and small puddles in the lobby … . Therefore, the wet condition could not have existed for more than 45 minutes, which is insufficient to discover and remedy a dangerous condition … . Alvizurez v North State Realty Assoc. LLC, 2026 NY Slip Op 01839, First Dept 3-26-26
Practice Point: Consult this decision for insight into the application of the storm-in-progress doctrine in a slip and fall case.
Practice Point: Note that a plaintiff’s own testimony can reveal that a defendant did not have constructive notice of the condition which caused plaintiff’s slip and fall.
THE LANDLORD DID NOT OWE A DUTY TO A TENANT TO PREVENT AN ASSAULT BY ANOTHER TENANT; THE LANDLORD’S DUTY IS NOT TRIGGERED UNLESS THE LANDLORD HAS THE AUTHORITY, ABILITY AND OPPORTUNITY TO CONTROL THE ACTIONS OF A TENANT-ASSAILANT; THE ABILITY TO EVICT DOES NOT CONSTITUTE THE REQUISITE AUTHORITY (FIRST DEPT).
The First Department, reversing Supreme Court, determined the landlord did not have a duty to prevent one tenant from attacking another:
… [The landlord] demonstrated prima facie that they were not liable for the third-party defendant’s alleged assault on plaintiff. A landlord has no duty to prevent one tenant from attacking another tenant unless it has the authority, ability, and opportunity to control the actions of the assailant … Here, defendants had no authority or opportunity to remove Vasquez from the premises prior to the assault. Defendants’ employee testified that defendants were unaware of prior complaints of [the tenant] engaging in violence, and plaintiff acknowledged that before the attack she never complained about [the tenant] being violent. Moreover, the assault upon the plaintiff was not reasonably foreseeable … .
Plaintiff failed to raise an issue of fact in opposition. Defendants’ ability to evict [the tenant] did not constitute the requisite authority, ability, and opportunity to control him … . Plaintiff failed to identify any prior complaints about [the tenant] being violent or making explicit threats of violence. Plaintiff’s generalized complaints about unsupervised children on the complex and about other children engaging in bullying were not sufficient to put defendants on notice that [the tenant] might be violent … . Rodriguez v Madison Sec. Group, Inc., 2026 NY Slip Op 01869, First Dept 3-26-26
Practice Point: Consult this decision for insight into the nature of a landlord’s duty to prevent an assault by one tenant against another.
THE ICY CONDITION WAS CREATED BY “POCKETS OF FREEZING RAIN” FROM MIDNIGHT TO 3:45 AM; THERE WAS NO “STORM;” THE “STORM-IN-PROGRESS” DOCTRINE SHOULD NOT HAVE BEEN APPLIED IN THIS SLIP AND FALL CASE (THIRD DEPT).
The Third Department, reversing the nonjury verdict in the Court of Claims in this parking-lot slip and fall cause, over a dissent, determined the defendant state had actual and constructive knowledge of the icy condition and the storm-in-progress doctrine did not apply:
The evidence establishes that defendant had actual notice of the icy conditions caused by the pockets of freezing rain and called in an employee to take appropriate measures to correct the dangerous condition by implementing defendant’s usual precautions of sanding/salting all paved areas accessible to the sander trucks. Even assuming that the record was insufficient to establish actual notice, we are satisfied that defendant had constructive notice of the dangerous condition in the location of claimant’s slip and fall. Based on the expert’s testimony of icy conditions forming through 3:45 a.m., defendant should have been aware of the slippery conditions on untreated surfaces between approximately 12:00 a.m. and 2:00 a.m., the time when defendant’s employee was performing “multiple” salting and sanding passes on the facility’s roads for “safety,” approximately five to seven hours before claimant’s fall, which is a sufficient time to establish constructive notice … . * * *
… [T]he event in question amounted to “pockets of freezing rain” that fell from approximately midnight until 3:45 a.m. and caused a glaze of ice measuring .05 to 0.1 inches. Defendant begs the question when it immediately argues that it is entitled to a “reasonable period of time” from 3:45 a.m. to address the condition. The threshold question is the applicability of the doctrine in the first instance. While it may be true that there is no need to establish the existence of a major winter event in order to apply the doctrine, it is equally true that there must be some sort of ongoing hazardous weather condition, i.e., a “storm” that amounts to more than an “appreciable accumulation” … . The storm in progress doctrine is not to be applied whenever any type of inclement weather exists and, given the unrefuted testimony of claimant’s expert meteorologist, it has no place in this litigation. Powers v State of New York, 2026 NY Slip Op 01833, Third Dept 3-26-26
Practice Point: In order for the storm-in-progress doctrine to be applicable, there must have been a “storm.” Here “pockets of freezing rain” did not constitute a “storm.”
PURSUANT TO THE MENTAL HYGIENE LAW, THE JUDGE DID NOT HAVE THE AUTHORITY TO INVALIDATE THE INCAPACITATED PERSON’S WILL IN THIS GUARDIANSHIP PROCEEDING (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the judge in this guardianship proceeding pursuant to the Mental Hygiene Law did not have the authority to invalidate the incapacitated person’s will:
… [T]he court ,,, adjudged Vincent V. L. to be an incapacitated person within the meaning of Mental Hygiene Law article 81 and appointed an independent guardian for his person and property. At issue on this appeal … is whether the court properly directed, in the context of this Mental Hygiene Law article 81 proceeding, that the last will and testament of Vincent V. L. … , was void ab initio.
Mental Hygiene Law § 81.29(d) expressly provides, in relevant part, that “[t]he court shall not . . . invalidate or revoke a will or a codicil of an incapacitated person during the lifetime of such person” in the context of a Mental Hygiene Law article 81 proceeding. The Supreme Court thus did not have the authority to invalidate Vincent V. L.’s last will and testament in the context of this Mental Hygiene Law article 81 proceeding. Matter of Vincent V.L. (Matthew L.–Tomasine F.), 2026 NY Slip Op 01789, Second Dept 3-25-26
Practice Point: The Mental Hygiene Law prohibits the invalidation of an incapacitated person’s will in a guardianship proceeding.
THE AFFIANT DID NOT SUBMIT THE BUSINESS RECORDS DEMONSTRATING THE NOTE WAS PHYSICALLY DELIVERED TO THE PLAINTIFF BEFORE THE FORECLOSURE ACTION WAS COMMENCED AND DID NOT DEMONSTRATE SHE HAD PERSONAL KNOWLEDGE THAT PLAINTIFF POSSESSED THE NOTE AT THE TIME THE ACTION WAS COMMENCED; THEREFORE PLAINTIFF DID NOT DEMONSTRATE STANDING TO FORECLOSE (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the documentary evidence submitted by plaintiff mortgage company to demonstrate it had standing to foreclose was insufficient:
“A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note” … . “The plaintiff meets this burden with proof of either a written assignment of the underlying note or the physical delivery of the note endorsed in blank or specially to it prior to the commencement of the foreclosure action” … .
Here, an affidavit of Teresa Swayze, an assistant vice president of the plaintiff’s servicing agent, submitted in support of the plaintiff’s motion for leave to renew, was insufficient to establish that the plaintiff possessed the note at the time this action was commenced. Swayze averred that the note was physically delivered to the plaintiff prior to the commencement of this action and attached to her affidavit a copy of the note with an allonge endorsed in blank. However, Swayze failed to submit the business record on which she relied for her assertion that the note was physically delivered to the plaintiff prior to the commencement of this action … . Moreover, Swayze’s affidavit did not demonstrate that she had personal knowledge of whether the plaintiff possessed the note at the time of the commencement of this action … . Federal Natl. Mtge. Assn. v Ayoola, 2026 NY Slip Op 01772, Second Dept 3-25-26
THE DAY CARE PROVIDER TESTIFIED HER BACK WAS TURNED WHEN INFANT PLAINTIFF FELL OFF THE SLIDE; THE DAY CARE CENTER’S MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENT-SUPERVISION CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, determined the cay-care-center defendants’ motion for summary judgment on the negligent-supervision cause of action should not have been granted. The complaint alleged infant plaintiff fell off a slide:
Day care providers are under a duty to adequately supervise the children in their charge and may be held liable for foreseeable injuries proximately related to a lack of adequate supervision … . “In general, the duty of a day care/preschool provider is to supervise the children in its care with the same degree of care as a parent of ordinary prudence would exercise in comparable circumstances” … . Generally, whether supervision was adequate and whether inadequate supervision was the proximate cause of a child’s injury are questions of fact … .
Here, the defendants failed to demonstrate, prima facie, that they provided adequate supervision to the plaintiff or that a lack of adequate supervision was not a proximate cause of the plaintiff’s injuries … . The defendants submitted, among other things, an expert affidavit from a child supervision expert and a transcript of the deposition testimony of the care provider present at the time of the plaintiff’s injury. The care provider testified that she was trained to always keep the children in her sight while they are in the gym. Moreover, the defendants’ expert emphasized that a teacher’s position should allow the teacher to clearly see the entire play area and the children. However, despite the care provider’s admitted familiarity with these practices, she testified that she was occupied tying another child’s shoe with her back turned when the plaintiff was on the playset with her brother and that she did not see the plaintiff until the plaintiff was on the ground. The defendants thereby failed to eliminate all triable issues of fact as to negligent supervision … . D.O. v Economic Opportunity Council of Suffolk, Inc., 2026 NY Slip Op 01797, Second Dept 3-25-26
Practice Point: A day-care provider is obligated to keep the play area and the children in sight at all times. Here the day-care provider had turned her back when infant plaintiff fell off the slide. That raised a question of fact precluding summary judgment in favor of defendant on the negligent-supervision cause of action.
NEW YORK IS A “PERMISSIVE COUNTERCLAIM” JURISDICTION; HERE COUNTERCLAIMS SHOULD NOT HAVE BEEN DISMISSED BECAUSE THEY COULD HAVE BEEN RAISED IN A PRIOR PROCEEDING (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, determined counterclaims in the current proceeding should not have been dismissed because they could have been raised in a prior proceeding: New York is a “permissive counterclaim” state:
New York is a permissive counterclaim jurisdiction under CPLR 3011 and 3019, where, generally, a defendant has no obligation to assert counterclaims and can wait to assert them in separate litigation … . However, while “[o]ur permissive counterclaim rule may save from the bar of res judicata those claims for separate or different relief that could have been but were not interposed in the parties’ prior action,” the rule “does not . . . permit a party to remain silent in the first action and then bring a second one on the basis of a preexisting claim for relief that would impair the rights or interests established in the first action” … .
Here, [the party’s] failure to assert the remaining causes of action as counterclaims in the prior action did not preclude him from asserting them in this action because, if [he] were successful on those causes of action, this would not impair the rights that were or could be established in the prior action with respect to him … . Berry v Batash, 2026 NY Slip Op 01755, Second Dept 3-25-26
Practice Point: Consult this decision for insight into when counterclaims which could have been raised in a prior proceedings should or should not be dismissed.
THE JUDGE DID NOT COMPLY WITH THE REQUIRED PROCEDURES FOR FINDING A PARTY IN CONTEMPT AND IMPOSING SANCTIONS (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the judge did not comply with the rules for finding a party in contempt and imposing sanctions:
Pursuant to Judiciary Law § 756, a contempt application must be in writing, must be made upon at least 10 days’ notice, and must contain on its face the statutory warning that “FAILURE TO APPEAR IN COURT MAY RESULT IN YOUR IMMEDIATE ARREST AND IMPRISONMENT FOR CONTEMPT OF COURT” … . Here, among other things, the defendants were never provided with the warning required by Judiciary Law § 756 … . Further, an order requiring the performance of an act may not include an additional clause stating that in default thereof, the party will be guilty of contempt of court … .
The Supreme Court also should have granted that branch of the defendants’ motion which was to vacate so much of the … order as conditionally imposed sanctions upon the defendants and their counsel. “A court does not have the authority to impose a penalty or sanction absent enabling legislation or court rule authorizing the penalty or sanction” … . Here, the court cited to no legislation or court rule to support the imposition of sanctions. To the extent that the court relied upon 22 NYCRR 130-1.1, it should not have done so. Among other reasons, the … order did not set forth the conduct on which the imposition of sanctions was based and the reason why the court found the conduct to be frivolous … . Yong Hong Xie v Lan Chen, 2026 NY Slip Op 01819, Second Dept 3-25-26
Practice Point: Consult this decision for insight into the procedural rules a court must follow to find a party in contempt and impose sanctions.
THE JUDGE DID NOT CONSIDER PLAINTIFF’S MOTION PAPERS TO THE EXTENT THE COURT-IMPOSED PAGE-LIMIT WAS EXCEEDED; REMITTED FOR A NEW DETERMINATION OF THE MOTIONS (SECOND DEPT).
The Second Department, reversing Supreme Court, determined that the judge’s refusal to read plaintiff’s motion papers to the extent the court-imposed page-limit was exceeded was unreasonable. Having accepted plaintiff’s papers, the court should have considered them in their entirety:
“It is appropriate for courts to set page or word limits on submissions, and to reject papers that fail to comply with those limits” … . However, “[i]t is not reasonable . . . for a court to accept papers that do not comply with the court’s page limitation and then refuse to read the noncompliant pages, denying, as a consequence, substantive relief that may be warranted” … . Having accepted the plaintiff’s papers, the Supreme Court should have considered the entirety of the plaintiff’s affirmation and memorandum of law submitted in support of the plaintiff’s opposition to the defendants’ motion and in support of the cross-motion. Accordingly, we remit the matter to the Supreme Court … for a new determination on the merits of the defendants’ motion and the plaintiff’s cross-motion. Weingarten v Kopelowitz, 2026 NY Slip Op 01816, Second Dept 3-25-26
Practice Point: If the court accepts motion papers which exceed the court-imposed page-limit, the court must consider the papers in their entirety.
THE JUDGE DID NOT MAKE EVEN A “MINIMAL INQUIRY” WHEN DEFENDANT STATED HE WANTED ANOTHER ATTORNEY; DEFENDANT DID NOT ABANDON THE ISSUE BY NOT RAISING IT AGAIN WHEN HE PLED GUILTY; PLEA VACATED (FIRST DEPT).
The First Department, vacating defendant’s guilty plea, in a full-fledged opinion by Judge Rodriguez, over a dissenting opinion, determined defendant was not afforded an adequate opportunity to explain his request for a new attorney. Defendant attempted to raise the issue at an early court appearance, but the judge made no inquiry. Subsequently, without raising the issue again, defendant pled guilty while represented by the same attorney:
“Where a defendant makes a seemingly serious request for reassignment of counsel, the court must make at least a ‘minimal inquiry’ as to ‘the nature of the disagreement or its potential for resolution’ ” … . Generally, to trigger the “minimal inquiry” requirement, the defendant must provide specific factual allegations … .
However, the “minimal inquiry” requirement presumes a fair opportunity to be heard. The law, in other words, does not permit the court to satisfy its obligations in this area by refusing the defendant an opportunity to record a potentially serious request. Thus, if the court denies the defendant’s “request for substitution of counsel without conducting any inquiry whatsoever, and without permitting defendant to explain, either orally or in writing, why such an inquiry might be necessary,” the defendant’s conviction should be vacated … .
Here, the court summarily denied defendant’s application without giving him a fair opportunity to be heard. Specifically, when defendant first asked to speak, the court ignored him altogether. When defendant made a second attempt, the court refused to permit him to address the issue and instead instructed him to “[t]alk to [his] lawyer.” As the People acknowledge, defendant had to interrupt the proceeding on his third attempt to communicate even his most elemental “need [for] a new attorney.” People v Dinkins, 2026 NY Slip Op 01742, First Dept 3-24-26
Practice Point: Consult this opinion for insight into the inquiry which must be made by a judge when a defendant requests a new attorney.