From This Week’s “Latest Posts” Section (Below):
To Survive a Motion to Dismiss, What Allegations Will Support “Piercing the Corporate Veil?”
If an Independent Cleaning Contractor Creates a Dangerous Floor Condition, Is the Retail Store Vicariously Liable Irrespective of Notice?
Jones v Marshalls, 2026 NY Slip Op 00087, First Dept 1-13-26
Does the Dismissal of a Federal Lawsuit on Statute of Limitations Grounds Preclude a Suit Based on the Same Facts in State Court?
M.T. v Yeshiva Univ., 2026 NY Slip Op 00218, First Dept 11-15-26
What Should Happen If After Pleading Guilty to Assault and Before Sentencing the Defendant Raises the Justification Defense in Open Court?
People v Brown-Shook, 2026 NY Slip Op 00172, Third Dept 1-16-26
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THE ALLEGATIONS IN THE COMPLAINT SUPPORTED “PIERCING THE CORPORATE VEIL;” PLAINTIFF ALLEGED FUNDS OWED TO HER WERE DIVERTED TO RENDER THE CORPORATION JUDGMENT PROOF (FIRST DEPT).
The First Department, reversing (modifying) Supreme Court, determined the cause of action alleging alter-ego liability should not have been dismissed. The court noted that New York does not recognize a separate cause of action to pierce the corporate veil, but in the context of a motion to dismiss, the issue is whether the facts fit any cognizable legal theory. Piercing the corporate veil is such a theory:
“Generally. . . piercing the corporate veil requires a showing that: (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff’s injury” … .
Initially, “while fraud certainly satisfies the wrongdoing requirement, other claims of inequity or malfeasance will also suffice” … . “Allegations that corporate funds were purposefully diverted to make [the corporation] judgment proof . . . are sufficient to satisfy the pleading requirement of wrongdoing which is necessary to pierce the corporate veil on an alter-ego theory” … . When “legitimate business activity” is involved, we have sometimes required a plaintiff to allege that the dominator “engaged in th[e] conduct for the purpose of harming plaintiff” … . However, this requirement does not apply when “the defendant against whom alter ego liability [i]s asserted . . . commit[s] fraud and malfeasance” … .
In any event, giving plaintiff the benefit of all favorable inferences as required on a CPLR 3211(a)(7) motion, she alleges that [defendant] caused the … funds owed to her to be diverted … in order to circumvent payment of the funds owed to her, which would render her judgment against the [the corporation] “nothing more than a pyrrhic victory” … . This allegation satisfies the “fraud or wrong” requirement of piercing the corporate veil … . Cohen v Cohen, 2026 NY Slip Op 00192, First Dept 1-15-26
Practice Point: Consult this decision for insight into what type of “fraud or wrong” must be alleged in the complaint to support piercing the corporate veil.
DEFENDANT HOME CARE AGENCY WAS HIRED BY DEFENDANT HEALTHCARE PLAN AS AN INDEPENDENT CONTRACTOR, NOT AN EMPLOYEE; THEREFORE THE HEALTHCARE PLAN WAS NOT LIABLE FOR THE ALLEGED ASSAULT, BATTERY AND NEGLIGENT SUPERVISION COMMITED BY AN EMPLOYEE OF THE HOME CARE AGENCY (FIRST DEPT).
The First Department, reversing (modifying) Supreme Court, determined that Lighthouse, the parent company of GuildNet, a long-term healthcare plan, could not be held liable for the assault, battery and negligence allegedly committed by an employee of Ellison Home Care Companion Agency, which provided healthcare aides who attended to plaintiff’s mother. Plaintiff alleged his mother was assaulted and battered by Shaw, who was employed by Ellison. The contract between GuildNet and Ellison described Ellison as an independent contractor. Because Shaw was not GuldNet’s employee, GuildNet was not vicariously liable for Shaw’s actions:
The assault, battery, and negligence claims should have been dismissed as against GuildNet on the ground that Shaw was not its employee at the time of the underlying events. GuildNet and Ellison’s Participating Provider Agreement expressly defined their relationship as one of independent contractors rather than employer-employee … . The record discloses that GuildNet had only incidental control and general supervisory power over Ellison’s work, which is insufficient to establish an employer-employee relationship … . Further, Ellison admitted that Shaw was its employee and acting within the scope of her employment at the time of the underlying events.
The remaining claim for negligent supervision should also have been dismissed. To the extent that it is predicated on GuildNet’s alleged failure to supervise Shaw despite knowledge of her “propensity for the sort of behavior which caused” [plainiff’s mother’s] injuries and death … , Shaw was not GuildNet’s employee, and the record is bereft of any information that could impute to GuildNet knowledge of her propensity either to commit assault or battery or to ignore a client in distress … . To the extent that the claim is instead predicated on GuildNet’s alleged failure to supervise the care that [plaintiff’s mother] received, namely, by failing to assign a competent agency to assign a competent home health care aide to work with [her], plaintiff has not identified how such a failure proximately caused [her] injuries and death, assuming that GuildNet even had a duty to do so in the first place … . Pander v GuildNet, Inc., 2026 NY Slip Op 00201, First Dep-15-26
Practice Point: A party which hires a party as an “independent contractor” and does not exercise supervisory control over the independent contractor’s work will not be vicariously liable for wrongdoing by the independent contractor.
THE RECORD DOES NOT DEMONSTRATE THE WAIVER OF INDICTMENT WAS SIGNED IN OPEN COURT; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL; CONVICTION REVERSED (FIRST DEPT).
The First Department, reversing defendant’s conviction, determined the waiver of indictment was invalid because it was not signed in open court:
Defendant’s waiver of indictment … was invalid because the record does not demonstrate that defendant satisfied the requirement of NY Constitution, art 1, § 6 and CPL 195.20 that the written waiver of indictment must be signed by the defendant in open court in the presence of his or her counsel … . The indictment waiver was dated February 3, 2021, the same date on which the SCI was issued, but a date on which there appears to have been no appearance in this case. Further, the court’s description of the indictment waiver suggested that the court understood it to have been signed before the day of the plea. The record as a whole does not clearly support an inference that the “open court” requirement was satisfied. A less than compelling inference does not fulfill the “unequivocal dictate” that the record demonstrate that the defendant signed the waiver in open court … . “Compliance with this unequivocal dictate is indispensable to a knowing and intelligent waiver and the failure to adhere to this strict procedure is a jurisdictional defect which survives a guilty plea and appeal waiver and need not be preserved” … . People v Perez, 2026 NY Slip Op 00210, First Dept 1-15-26
Practice Point; If the record does not unequivocally demonstrate a waiver of indictment was signed in open court, the guilty plea is invalid. The issue need not be preserved for appeal.
THE DISMISSAL OF TWO FEDERAL LAWSUITS AGAINST DEFENDANT SCHOOL (ALLEGING SEXUAL AND PHYSICAL ABUSE OF PLAINTIFFS-STUDENTS) ON STATUTE-OF-LIMITATIONS GROUNDS DID NOT GIVE RISE TO A “VESTED RIGHT” REQUIRING THE DISMISSAL OF THE STATE ACTION UNDER THE CHILD VICTIMS ACT ALLEGING THE SAME FACTS (FIRST DEPT).
The First Department, in a full-fledged opinion by Justice Moulton, determined that the dismissal of two federal lawsuits as barred by the statute of limitations did not create a “vested right” such that a state Child Victims Act action based on the facts alleged in the federal lawsuits should be dismissed. The lawsuits stemmed from allegations of sexual and physical abuse of plaintiffs, students at defendant school:
The federal doctrine of vested rights has roots in common and even natural law. * * *
The case most often cited by modern cases for articulating the doctrine is McCullough v Virginia (172 US 102 [1898]). There, a taxpayer prevailed in a Virginia state court against the State of Virginia, obtaining a judgment for a tax refund (id.). Before the judgment was executed, the Virginia legislature repealed the legislation that had entitled the taxpayer to a refund (id.). McCullough held that the United States Constitution barred the state legislature from repudiating the state court judgment, explaining that “[it] is not within the power of the legislature to take away rights which have been once vested by a judgment,” and that when “passed into judgment the power of the legislature to disturb the rights created thereby ceases” … .
McCullough, its progeny, and earlier cases establish that a final money judgment gives rise to a vested due process property right, which entitles the judgment creditor to the same constitutional protections afforded other forms of property … . * * *
In describing their purported property right, the … defendants argue that they are not asserting a property right in “any previously-applicable statute of limitations, but rather in the final federal judgments that they received.” Indeed, if the final federal judgments, standing alone, do not vest defendants with a constitutionally protected property right, the argument fails because, as the … defendants concede, “[o]f course a statute of limitations itself does not create property rights” … . M.T. v Yeshiva Univ., 2026 NY Slip Op 00218, First Dept 11-15-26
Practice Point: The dismissal of federal lawsuits as barred by the statute of limitations did not constitute a “vested right” requiring dismissal of the state action under the Child Victims Act based on the same facts.
BETWEEN DEFENDANT’S GUILTY PLEA AND SENTENCING, THE COURT HELD A HEARING ON WHETHER DEFENDANT WAS ENTITLED TO ALTERNATIVE SENTENCING PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA); AT THE HEARING DEFENDANT TESTIFIED SHE ACTED IN SELF DEFENSE WHEN SHE STABBED THE VICTIM; THAT TESTIMONY TRIGGERED THE NEED FOR FURTHER EXPLORATION BY THE JUDGE; THE MAJORITY APPLIED AN EXCEPTION TO THE PRESERVATION REQUIREMENT TO CONSIDER THE APPEAL AND REVERSE; TWO DISSENTERS ARGUED THE EXCEPTION TO THE PRESEVATION REQUIREMENT DID NOT APPLY (THIRD DEPT).
The Third Department, reversing defendant’s conviction by guilty plea, over a two-justice dissent, determined defendant raised a question whether defendant stabbed the victim in self-defense in open court between the plea and sentencing which the judge was required to, but failed to explore. The majority applied an exception to the preservation requirement triggered when an element of the crime is negated by the defendant in open court between the plea and the sentencing. Although nothing in the in the plea colloquy negated an element of the crime, during the post-plea hearing on defendant’s application for alternative sentencing pursuant to the Domestic Violence Survivors Justice Act (DVSJA) defendant testified she acted in self defense. The two dissenters argued the exception to the preservation requirement did not apply and the appeal should not have been considered:
Defendant made no statements during the plea colloquy or at sentencing that negated an element of the crimes to which she pleaded guilty, raised the possibility of a particular defense or suggested an involuntary plea so as to implicate the narrow exception to the preservation rule … . That said, the narrow exception to the preservation rule is implicated whenever a defendant “negate[s] an element of the crime to which a plea has been entered or make[s] [a] statement[ ] suggestive of an involuntary plea” in open court between the plea and sentencing, obliging the trial court to “conduct a further inquiry or give the defendant an opportunity to withdraw the plea” … .
From the dissent:
… [D]efendant’s statements during the DVSJA hearing did not signify a lack of understanding about the nature of the charges to which she pleaded guilty or that her plea was involuntary. We are mindful that defendant’s statements during the hearing suggest that she had a potential justification defense, but the hearing was contemplated by the plea agreement itself, the statements were made for the purpose of establishing defendant’s entitlement to a reduced sentence under Penal Law § 60.12 and defendant twice reaffirmed her plea during the hearing. Notably, at the end of the hearing, defense counsel expressly stated that defendant had “knowingly plea[ded guilty to the indictment.” Under these particular circumstances and when considered in context, defendant’s postplea statements “did not raise a legitimate question about the voluntariness of [defendant’s] plea” … so as to impose upon the court a duty of further inquiry to ensure that the plea was knowing, voluntary and intelligent … . People v Brown-Shook, 2026 NY Slip Op 00172, Third Dept 1-16-26
Practice Point: Here the defendant pled guilty and moved for an alternative sentence under the DVSJA. At the DVSJA hearing she testified she stabbed the victim in self defense. There is a narrow exception to the preservation requirement when a defendant negates an element of the crime in open court between pleading guilty and sentencing. Over a two-justice dissent, the majority applied the preservation exception and reversed on the ground the judge did not explore the possibility defendant had acted in self defense.
EXCESSIVE QUESTIONING BY THE TRIAL JUDGE WHICH TOOK ON THE FUNCTION AND APPEARANCE OF AN ADVOCATE DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT).
The Second Department, reversing defendant’s conviction and ordering a new trial, determined the trial judge deprived defendant of a fair trial by excessive questioning ot eh defendant which “took on the function and appearance of an advocate.” The error was not preserved but the appeal was considered in the interest of justice:
Supreme Court engaged extensively in its own areas of inquiry, which detailed the nature of the complainant’s injury and clarified whether the injury was likely to have been intentionally caused by a sharp instrument. The court asked numerous leading questions of the People’s witness, a paramedic, as to what the paramedic observed, and guided the prosecution at length in its questioning of the paramedic. The court also assisted the prosecution in laying a foundation for the admission of evidence and repeatedly engaged in lengthy colloquies with various prosecution witnesses in order to effectively instruct these witnesses how to refresh their recollections in order to provide evidence favorable to the prosecution.
Viewing the record as a whole, the Supreme Court improperly took on the function and appearance of an advocate, at times even engaging in commentary on the testimony against the defendant, as well as on questions posed by defense counsel. The court’s conduct left the impression that its opinion favored the credibility of the People’s witnesses and the merits of the People’s case … , thus depriving the defendant of a fair trial … . People v Coleman, 2026 NY Slip Op 00145, Second Dept 1-14-26
Practice Point: Here the trial judge engaged in questioning of witnesses which took on the function and appearance of an advocate, depriving defendant of a fair trial. Although the issue was not preserved, the appeal was considered in the interest of justice.
DISAGREEING WITH THE THIRD DEPARTMENT, THE SECOND DEPARTMENT HELD THAT THE “DISMISSAL WITHOUT PREJUDICE” OF A MOTION FOR A REDUCED SENTENCE PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) FOR FAILURE TO PROVIDE SUFFICIENT EVIDENCE CORROBORATING THAT DEFENDANT WAS A VICTIM OF DOMESTIC VIOLENCE IS APPEALABLE (SECOND DEPT).
The Second Department, in a full-fledged opinion by Justice LaSalle, disagreeing with the Third Department, determined that the “dismissal without prejudice” of a motion for a reduced sentence pursuant to the Domestic Violence Survivors Justice Act (DVSJA) constitutes a denial of the motion which is appealable:
… [W]e disagree with the Third Department and conclude that under the plain language of CPL 440.47(3)(a), an order “dismissing” a resentencing application at step two pursuant to CPL 440.47(2)(d) is an order “denying resentencing” … , rendering it appealable as of right pursuant to CPL 440.47(3)(a). This is because the effect of an order “dismissing” a resentencing application is that the defendant has been denied resentencing. We conclude that the fact that the statute uses the word “dismiss” in CPL 440.47(2)(d) (when indicating what the court shall do with an application for resentencing that does not contain evidence corroborating the defendant’s claim that he or she was a victim of domestic violence at the time of the offense) and “denying” in CPL 440.47(3)(a) (when indicating what orders an appeal may be taken from) does not mean that the Legislature did not intend for a defendant to be able to appeal from an order determining that a defendant has failed to provide evidence … corroborating the defendant’s claim that he or she was a victim of domestic violence at the time of the offense. People v Nymeen C., 2026 NY Slip Op 00144, Second Dept 1-14-26
Practice Point: There is a split of authority on the question whether the “denial without prejudice” of a defendant’s motion for a reduced sentence pursuant to the Domestic Violence Survivors Justice Act (DVSJA) is appealable. It is not appealable in the Third Department but is appealable in the Second Department.
THE STATUTE OF LIMITATIONS FOR DECLARATORY JUDGMENTS DEPENDS ON THE UNDERLYING THEORY, FRAUD IN THIS CASE; AN AGREEMENT TO ASSIGN OR OBTAIN A MORTGAGE IS A CONTRACT INVOLVING AN INTEREST IN REAL PROPERTY AND IS SUBJECT TO THE STATUTE-OF-FRAUDS WRITING-REQUIREMENT (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, determined that certain causes of action in this dispute over ownership of real property should have been dismissed as time-barred or as violative of the statute of frauds:
“Actions for declaratory judgments are not ascribed a certain limitations period. The nature of the relief sought in a declaratory judgment action dictates the applicable limitations period” … . The statute of limitations for an action based upon fraud generally is six years from the date the cause of action accrued (see CPLR 213[8]). … [T]he first and second causes of action were untimely, as the amended complaint alleged that [defendant’s] fraud in obtaining those interests occurred more than six years before the commencement of this action … .
… Causes of action to impose a constructive trust upon real property and to recover damages for unjust enrichment are governed by a six-year statute of limitations, which begins to accrue at the time of the wrongful act giving rise to the duty of restitution … . … [Defendant’s] alleged fraudulent acquisition of ownership interests … occurred more than six years before the commencement of this action.
… The statute of frauds requires any contract transferring or creating an interest in real property to be in writing (see General Obligations Law § 5-703[1] …). Here, [the] … complaint alleged [defendants] breached their agreements to assign or obtain a mortgage in favor of the plaintiffs. A mortgage constitutes an interest in real property, and the agreements to transfer or obtain mortgages in favor of the plaintiffs, therefore, were required to be in writing. Hersko v Hersko, 2026 NY Slip Op 00120, Second Dept 1-14-26
Practice Point: The statute of limitations for a declaratory judgment is that which applies to the underlying theory. Here the six-year statute for fraud applied.
Practice Point: An agreement to assign or obtain a mortgage is subject to the statute-of-frauds because a mortgage constitutes an interest in real property.
THE INCIDENT IN WHICH PLAINTIFF WAS INJURED BY BROKEN GLASS IN A DOOR WAS CAPTURED ON VIDEO WHICH WAS NEGLIGENTLY ERASED; PLANTIFF ALLEGED THE GLASS BROKE WHEN PLAINTIFF PULLED ON THE DOOR; AN EMPLOYEE OF THE BUILDING’S SECURITY COMPANY WHO SAW THE VIDEO CLAIMED PLAINTIFF PUNCHED THE GLASS; PRECLUSION OF TESTIMONY ABOUT THE CONTENTS OF THE VIDEO WAS TOO SEVERE A SANCTION FOR SPOLIATION; PLAINTIFF WAS ENTITLED TO AN ADVERSE INFERENCE JURY INSTRUCTION (SECOND DEPT).
The Second Department, reversing (modifying) Supreme Court, over a two-justice concurrence, determined the video showing plaintiff’s injury from broken glass in a door was negligently, not intentionally, erased. Therefore the proper sanction was an adverse inference charge, not the preclusion of any evidence about the contents of the video. Plaintiff alleged the glass broke when plaintiff pulled on the door. Williams, an employee of the building-security company who viewed the video, claimed plaintiff punched the glass:
… [P]laintiff showed that the defendants had an obligation to preserve the video surveillance footage of the incident at the time that the footage was destroyed. Williams learned that the glass in the door was broken the same day that the incident occurred, and she investigated and documented it. Furthermore, the defendants’ site manager testified at a deposition that the plaintiff’s mother called after the incident to report that the plaintiff’s arm had gone through the glass in the door, causing “severe injury,” and that he was in the hospital. After receiving this report, the site manager testified, she spoke with Williams and learned that Williams had viewed video surveillance footage depicting the incident and had created an incident report. “Given the nature of the plaintiff’s injuries and the immediate documentation and investigation into the accident by the defendants’ employee[ ], the defendants were on notice of possible litigation and thus under an obligation to preserve any evidence that might be needed for future litigation” … . * * *
Supreme Court improvidently exercised its discretion in precluding the defendants from presenting any evidence regarding Williams’s observations of the video surveillance footage, as this sanction disproportionately eliminated their defense to this action. Instead, under the circumstances, including the negligent, rather than intentional, destruction of the video surveillance footage and the degree of prejudice to the plaintiff, the court should have directed that an adverse inference charge be given against the defendants at trial with respect to the video surveillance footage of the incident … . Battle v Fulton Park Site 4 Houses, Inc., 2026 NY Slip Op 00114, Second Dept 1-14-26
Practice Point: Here preclusion of testimony about the contents of a negligently (not intentionally) erased video which depicted the incident was deemed too severe a spoliation sanction because preclusion eliminated the only defense to the action. An adverse inference charge was deemed the appropriate sanction.
HERE AN INDEPENDENT CLEANING CONTRACTOR APPARENTLY CREATED A DANGEROUS FLOOR CONDITION WHICH INJURED PLAINTIFF; ALTHOUGH THE COMPANY WHICH HIRED THE INDEPENDENT CONTRACTOR WAS NOT LIABLE FOR THE INDEPENDENT CONTRACTOR’S NEGLIGENCE, MARSHALLS, THE RETAIL STORE WHERE THE INJURY OCCURRED, COULD BE VICARIOUSLY LIABLE FOR THE INDEPENDENT CONTRACTOR’S NEGLIGENCE BECAUSE MARSHALLS HAS A NONDELGABLE DUTY TO KEEP THE PUBLIC AREAS OF ITS STORE SAFE; WHETEHER MARSHALLS HAD NOTICE OF THE DANGEROUS CONDITION IS NOT AN ISSUE WHERE VICARIOUS LIABILITY MAY APPLY (FIRST DEPT).
The First Department noted that Marshall’s had a nondelegable duty to keep the public area of its store safe. The underlying fact of the case are not described but plaintiff was apparently injured because of the negligence of defendant cleaning subcontractor. The defendant which hired the subcontractor was not liable because the subcontractor was retained as an independent contractor. But the store was liable for the subcontractor’s negligence based upon its nondelegable duty to keep public areas safe (notice of the dangerous condition is not an issue):
The general rule is that a party who retains an independent contractor is not liable for that contractor’s negligent acts … . The record establishes that neither USM [the company which hired the independent contractor] nor Marshalls exercised control over how [the independent contractor] performed its cleaning tasks at the Marshalls store where plaintiff was injured, and that USM was not even present at the location at the time of the accident. * * *
… [T]he court should not have granted summary judgment dismissing the complaint as against Marshalls, which had a nondelegable duty to maintain the public area of its store in a reasonably safe condition. Therefore, Marshalls can be held vicariously liable for any negligence on the part of the subcontractor that caused the floor to become unsafe … . In light of the foregoing, we find it unnecessary to consider whether Marshalls established lack of notice of the hazardous condition. Jones v Marshalls, 2026 NY Slip Op 00087, First Dept 1-13-26
Practice Point: Here a retail store, Marshall’s could be vicariously liable for a slip and fall caused by the negligence of an independent cleaning contractor. The store has a nondelegable duty to keep its public areas safe. The question whether Marshall’s had notice of the dangerous condition is irrelevant where liability is vicarious. [Why is a retail store’s notice of the dangerous condition a crucial issue where no independent contractor is involved, but irrelevant when the cleaning is done by an independent contractor?]
PROVIDING COUNSEL WITH “MEANINGFUL NOTICE” OF THE CONTENTS OF A NOTE FROM THE JURY DOES NOT NECESSARILY REQUIRE READING THE NOTE INTO THE RECORD VERBATIM; THERE WAS A TWO-JUSTICE DISSENT (FIRST DEPT).
The First Department, affirming the convictions, over a two-justice dissent. determined the judge did not commit a mode of proceedings error when responding to two notes from the jury. The dissenters argued the notes should have been read into the record “verbatim:”
In People v O’Rama (78 NY2d 270 [1991]), the Court of Appeals in addressing the “notice” requirement contained in CPL 310.30, held that “notice” means “meaningful” notice to counsel of the “actual specific content of the jurors’ request” … . * * *
O’Rama suggested that upon receipt of a written jury request, the note should be marked as a jury exhibit before the jury is recalled into the courtroom and read into the record in the presence of counsel. After the contents are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses. Finally, the court should read the communication in open court in the presence of counsel, the defendant and the jury … . However, failure to strictly follow this suggested procedure does not always result in a violation of the notice requirements of CPL 310.30 or rise to the level of a mode of proceedings error, as the designation of a mode of proceedings error is “reserved for the most fundamental flaws. The error must go to the essential validity of the process and be so fundamental that the entire trial is irreparably tainted” … . * * *
… [S]trict adherence to the “best practice” procedure suggested in O’Rama is not required so long as the fundamental purpose of CPL 310.30 is achieved, which is providing counsel with meaningful notice of the contents of a jury note so that counsel has an opportunity to provide meaningful input to the court’s response. People v Vilella, 2026 NY Slip Op 00097, First Dept 1-13-26
Practice Point: The majority held that providing counsel with “meaningful notice” of the contents of a jury not did not require reading the note into the record verbatim. There was a two-justice dissent.
THE NYC ZONING RESOLUTION WHICH ALLOWS “JOINT LIVING-WORK QUARTERS FOR ARTISTS” TO BE CONVERTED TO UNRESTRICTED RESIDENTIAL USE UPON PAYMENT OF A $100 PER-SQUARE-FOOT FEE DOES NOT VIOLATE THE “TAKINGS CLAUSE” OF THE US CONSTITUTION (CT APP).
The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, over a concurrence and a dissent. determined that a New York City Zoning Resolution which allows “Joint Living-Work Quarters for Artists” units in SoHo and NoHo to be converted to unrestricted residential use upon payment of $100 per square foot did not violate the Takings Clause in the Fifth Amendment to the US Constitution. The 1971 “Joint Living-Work Quarters for Artists” (JLWQA) designation allowed certified artists to affordably reside and work in buildings formally used for manufacturing which were not zoned for residential use. Over the decades the areas have been gentrified and became predominately occupied by non-artists. The challenged 2021 zoning resolution essentially allows any JLWQA unit to be converted to unrestricted residential unit by paying a fee. The petitioners argued the fee violates the Takings Clause:
We conclude that petitioners do not have a compensable property interest within the meaning of the Takings Clause, as the United States Supreme Court has interpreted it, and that the fee therefore does not constitute a taking. The Takings Clause protects property owners against exploitative governmental conduct that seeks to take property without paying for it … . The newly granted opportunity to transform the essential nature of a restricted JLWQA unit into a different, unrestricted interest is not in itself a property interest. Rather, it is the restricted JLWQA unit itself, and the concomitant bundle of property rights resulting from the City’s designation as such, that constitutes the property that the government cannot take without just compensation. The creation of an optional pathway to convert to unrestricted residential use upon payment of the fee has not extinguished or diminished petitioners’ property rights in their JLWQA units. The City gains no interest in the units upon conversion, and even if petitioners held a constitutionally protected property interest in converting their property, the rezoning plan does not subject petitioners to any governmental coercion to transfer property that they would otherwise retain.
Furthermore, a typical Takings Clause case involves the government’s physical acquisition or use of private land without compensation, or its monetary exaction from a property owner in lieu of a transfer of their private property interest. By contrast, a standalone monetary fee such as the one in this case does not implicate the Takings Clause merely because it is levied upon a property owner. Matter of Coalition for Fairness in Soho & Noho, Inc. v City of New York, 2026 NY Slip Op 00076, CtApp 1-13-26