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AFTER THE JUDGMENT OF FORECLOSURE AND THE EXPIRATION OF THE TIME FOR APPEAL, DEFENDANT, PRIOR TO THE SALE OF THE PROPERTY, PURSUANT TO CPLR 2221, MOVED TO VACATE THE JUDGMENT BASED ON THE FORECLOSURE ABUSE PREVENTION ACT (FAPA); THE MOTION SHOULD NOT HAVE BEEN DENIED AS UNTIMELY; MATTER REMITTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendant in this foreclosure action used the proper procedure for attempting to apply the Foreclosure Abuse Prevention Act (FAPA) retroactively. The foreclosure action had already proceeded to judgment and the time for appeal had expired. The only way to effectuate the FAPA at that point is a motion to renew (CPLR 2221) made before the sale of the property. Defendant’s CPLR 2221 motion should not have been denied as untimely:

The court granted plaintiff a judgment of foreclosure and sale … . Defendant moved pursuant to CPLR 2221 to vacate the judgment based on FAPA.

The court should not have determined that the motion was untimely. Generally, a CPLR 2221 motion based upon a change in the law must be made prior to the entry of a final judgment or before the time to appeal has fully expired … . However, following the Court of Appeals’ decision in Article 13 LLC v Ponce De Leon Fed. Bank ( —NY3d—, 2025 NY Slip Op 06536 [2025]), this Court held that “the only way to effectuate the retroactive application of FAPA after a judgment has been entered and the time to appeal has expired, is by filing a motion to renew before the sale is conducted” … . Defendant followed this precise process.

Accordingly, this matter is remanded for further proceedings, including consideration of the parties’ arguments concerning whether retroactive application of FAPA would violate the Takings and Due Process Clauses … . Bank of N.Y. Mellon v Adam P10tch, LLC, 2026 NY Slip Op 02596, First Dept 4-28-26

Practice Point: After the judgment of foreclosure and the expiration of the time for appeal, but before the sale of the property, a defendant can still make a motion to vacate the judgment based on the FAPA (CPLR 2221).

 

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THE JUDGE DID NOT HAVE A DISTINCT AND PROPER REASON TO DEMAND THE WAIVER OF DEFENDANT’S RIGHT TO APPEAL; IT APPEARS THE JUDGE WAS TRYING TO SHIELD THE DENIAL OF SUPPRESSION FROM APPELLATE REVIEW; THE POLICE OFFICERS WHO APPROACHED DEFENDANT BASED UPON AN ANONYMOUS TIP HAD ONLY THE COMMON LAW RIGHT OF INQUIRY; THE EVIDENCE DEFENDANT CONSENTED TO THE PAT DOWN SEARCH WAS INSUFFICIENT; SUPPRESSION SHOULD HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined defendant’s waiver of appeal was invalid and defendant’s motion to suppress the evidence seized from his person should have been granted:

Here, the consent of the People to the plea agreement was not required because the charges remained as presented (see CPL 220.10 [2]) and, thus, the People were not in a position to demand a waiver of defendant’s right to appeal nor was such a waiver—or any other plea condition—necessary to secure the People’s consent … . It follows, then, that the court’s demand of an appeal waiver, particularly as viewed in light of defendant’s expressed desire to seek appellate review of the court’s suppression ruling, “gives rise to the appearance that the court [was] seeking to shield its decisions from appellate review or otherwise act[ing] as an advocate for the People” and, therefore, “we must look to the record as a whole to determine whether there is a distinct and proper reason for the court’s demand” … . * * *

Upon our review of the record …, including defense counsel’s unrefuted assertion that the court unilaterally demanded an appeal waiver that would foreclose appellate review of its determination of defendant’s suppression motion as a condition of the court-initiated plea agreement, we conclude that it is not apparent that the court had a distinct and proper reason to demand that waiver of defendant’s right to appeal. Therefore, the waiver of the right to appeal is invalid and does not preclude our review of defendant’s contentions. * * *

… [T]he anonymous 911 phone tip generated only a belief that criminal activity was afoot and, as such, limited the officers’ permissible action to a level two common-law right of inquiry … . * * *

Inasmuch as the People failed to present evidence at the suppression hearing establishing defendant’s voluntary consent to the search of his person, all physical evidence seized as a result of that consent “should have been suppressed” … . People v Turner, 2026 NY Slip Op 02557, Fourth Dept 4-24-26

Practice Point: Where the defendant pleads to the charges and there is no need for the People’s consent, the sentencing judge must have a distinct and proper reason to demand that defendant waive his right to appeal, absent here.

 

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ONLY THE CHIEF ADMINISTRATOR OF THE COURTS HAS THE POWER TO APPOINT CHIEF CLERKS AND DEPUTY CHIEF CLERKS OF THE SURROGATE’S COURTS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the Chief Administrator of the Courts, not the Surrogate’s Courts, has the power to appoint Chief Clerks and Deputy Chief Clerks of the Surrogate’s Courts:

Although the Chief Clerks and Deputy Chief Clerks of the Surrogates’ Courts possess significant authority, we agree with defendant that they are, nevertheless, nonjudicial officers. The Chief Clerks, for example, have the authority to sign papers or records of the courts, to adjourn matters, to administer oaths, to supervise disclosure and, in certain circumstances, to hear and report matters to the Surrogates (see SCPA 506 [6] [a]; 2609). Such responsibilities, however, are akin to those of referees (see SCPA 506; CPLR 4201), which are themselves “nonjudicial officers of the court appointed to assist it in the performance of its judicial functions” (… see generally CPLR 4312 [5] …). Thus, given the “nature of the position[s],” we agree with defendant that the Chief Clerks and Deputy Chief Clerks of the Surrogates’ Courts are nonjudicial positions and, “[a]s such, they are subject to the constitutional appointment power of the Chief Administrator, notwithstanding [article 26 of the Surrogate’s Court Procedure Act]. Since the appointment powers of the Chief Administrator flow from the State Constitution, they cannot be abrogated by statute” … . Mosey v Office of Ct. Admin., 2026 NY Slip Op 02538, Fourth Dept 4-24-24

 

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IN A MEDICAL MALPRACTICE TRIAL, THE “ERROR IN JUDGMENT” JURY INSTRUCTION IS ONLY APPROPRIATE WHERE A PHYSICIAN IS CONFRONTED WITH SEVERAL MEDICALLY ACCEPTABLE TREATMENTS AND CHOOSES ONE; HERE IT WAS ALLEGED DEFENDANT MISREAD AN X-RAY; GIVING THE “ERROR IN JUDGMENT” INSTRUCTION WAS REVERSIBLE ERROR (FOURTH DEPT). ​

The Fourth Department, ordering a new trial in this medical malpractice case, determined the judge should not have given the jury an “error in judgment” jury instruction. The complaint alleged defendant physician failed to notice an abnormality in a lung X-ray. The “error in judgment” instruction is only appropriate when a physician is confronted with several medically acceptable treatments and chooses one, not the case here:

“[A]n error [in] judgment charge is appropriate in a case where a doctor is confronted with several alternatives and, in determining appropriate treatment to be rendered, exercises [their] judgment by following one course of action in lieu of another” … . However, such a charge should be given “only in a narrow category of medical malpractice cases in which there is evidence that [the] defendant physician considered and chose among several medically acceptable treatment alternatives” … . An error in judgment charge is not warranted where, as here, there was no evidence introduced at trial that the defendant physician “made a choice between or among medically acceptable alternatives” … , and the “plaintiffs’ [sole] theory of [the] defendant’s alleged malpractice ar[ose] from [the] defendant’s alleged lack of due care in assessing [the] plaintiff’s condition,” inasmuch as “the [sole] issue before the jury was [then] whether [the] defendant’s failure to diagnose [the] plaintiff’s [condition] constituted a deviation from medically accepted standards of care” … . Inasmuch as the error in judgment charge here “create[d] a risk that [the] jury w[ould] find that, because [Sobieraj] exercised his . . . best judgment, there can be no liability despite a failure to adhere to generally accepted standards of care,” we conclude that the court’s error in giving the charge cannot be deemed harmless … , and plaintiffs are thus entitled to a new trial.  Burns v Sobieraj, 2026 NY Slip Op 02537, Fourth Dept 4-24-26

Practice Point: In a medical malpractice action, the “error in judgment” jury instruction is only appropriate where there evidence of more than one appropriate treatment and the physician chooses one. It was reversible error to give the instruction where it was alleged the defendant misread an X-ray.

 

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MOTHER ASKED TO REPRESENT HERSELF IN THIS CUSTODY PROCEEDING AND THEN DEFAULTED; THE ISSUE IS APPEALABLE DESPITE THE DEFAULT; THE JUDGE’S FAILURE TO CONDUCT A SEARCHING INQUIRY UPON MOTHER’S REQUEST TO REPRESENT HERSELF REQUIRED REMITTAL AND A NEW HEARING ON THE PETITION (FOURTH DEPT).

The Fourth Department, reversing Family Court and ordering a new custody hearing, determined Family Court did not conduct an adequate inquiry before accepting mother’s waiver of the right to counsel. The issue was appealable despite mother’s default:

At the mother’s initial appearance, Family Court advised the mother that she had the right to counsel, and the mother indicated that she planned to represent herself. The court scheduled a hearing on the petitions and warned the parties that, if a party failed to appear, the court would dismiss that party’s petition and proceed without the party. The mother failed to appear at the hearing, and the court noted her default and proceeded on the father’s petition. The mother now appeals from an order that, inter alia, dismissed her petition and awarded the parties joint custody of the children. * * *

 The “request by a party to waive the right to counsel and proceed pro se . . . places in issue whether the court fulfilled its obligation to ensure a valid waiver” and may be reviewed by this Court on an appeal by the subsequently defaulting pro se party … .

“[A] court’s decision to permit a party who is entitled to counsel to proceed pro se must be supported by a showing on the record of a knowing, voluntary and intelligent waiver of [the right to counsel]” … . “If a timely and unequivocal request [to proceed pro se] has been asserted, then the trial court is obligated to conduct a ‘searching inquiry’ to ensure that the [party’s] waiver is knowing, intelligent, and voluntary” … . Although “[a] ‘searching inquiry’ does not have to be made in a formulaic manner” … , “the record must demonstrate that the party was aware of the dangers and disadvantages of proceeding without counsel” … . Matter of Crespo v Wynn, 2026 NY Slip Op 02517, Fourth Dept 4-24-26

Practice Point: In a custody proceeding, before accepting a party’s request to represent herself, the court must conduct a searching inquiry to make sure the party understands the dangers and disadvantages. The issue is appealable despite a subsequent default.

 

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THE RESPONDENT CORRECTION OFFICER PARTICIPATED IN A GANG ASSAULT ON AN INMATE WHICH RESULTED IN THE INMATE’S DEATH; THE CORRECTION OFFICER WAS ACQUITTED OF CRIMINAL CHARGES; THE NY STATE POLICE BROUGHT THIS PROCEEDING SEEKING AN “EXTREME RISK PROTECTION ORDER” (ERPO) WHICH PROHIBITS RESPONDENT FROM POSSESSING FIREARMS; SUPREME COURT DENIED THE PETITION; THE FOURTH DEPARTMENT GRANTED IT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined Supreme Court should have issued an “extreme risk protection order” (ERPO) which preclude the respondent correction officer from possessing firearms. The respondent was involved in a gang assault on an inmate which caused the inmates death. The respondent had been acquitted of the related criminal charges:

… [T]he burden was on petitioner [the New York State Police] under the circumstances here to establish, by clear and convincing evidence, that respondent posed “a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm” (Mental Hygiene Law § 9.39 [a] [2]; see CPLR 6343 [2]). Petitioner met that burden by establishing that respondent actively participated in the assault of a restrained incarcerated individual by grabbing the victim by the chest and holding him down while other officers kicked the victim in the abdomen and groin (see CPLR 6342 [2] [a]). Indeed, that conduct is particularly egregious in this case because “DOCCS regulations require correction officers to exercise ‘[t]he greatest caution and conservative judgment’ in determining whether physical force against an inmate is necessary” ( … 7 NYCRR 251-1.2 [a]), inasmuch as “[c]orrection officers are tasked with the formidable and critical responsibility of protecting the safety of inmates and coworkers while maintaining order in correctional facilities” (id. at 385). Respondent adduced no evidence to the contrary at the hearing. * * *

We therefore reverse the order, reinstate the application, grant the application insofar as it seeks the issuance of a final ERPO, and remit the matter to Supreme Court for further proceedings pursuant to CPLR 6343 (3). Matter of New York State Police v Galliher, 2026 NY Slip Op 02510, Fourth Dept 4-24-26

Practice Point: The “Extreme Risk Protection Act” (CPLR 6343) provides a mechanism to prohibit the possession of firearms. Here a correction officer participated in a gang assault on an inmate which resulted in the inmate’s death. The correction officer was acquitted of criminal charges and could therefore possess firearms. The NY State Police brought this proceeding for a “final extreme risk protection order” (ERPO) prohibiting the correction officer from possessing firearms.

 

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ALTHOUGH THE DEFENDANT COULD HAVE BEEN ARRESTED AT THE TIME OF THE SEARCH OF HIS PERSON, HE WAS NOT, IN FACT, UNDER ARREST; THEREFORE THE KEY FOB AND THE FIREARM FOUND IN DEFENDANT’S VEHICLE SHOULD HAVE BEEN SUPPRESSED; AN APPELLATE COURT CANNOT AFFIRM ON ANY ALTERNATIVE BASIS (FOURTH DEPT).

The Fourth Department, suppressing the firearm found in defendants vehicle, determined the search of defendant’s person, during the key fob for the vehicle was seized, was not a valid search incident to arrest. Although there may have existed probable cause to arrest defendant at the time of the search, the defendant had not yet, in fact, been arrested:

Even assuming, arguendo, that either the investigator or the searching officer could have arrested defendant prior to or contemporaneously with the search of his person, we note that “[a] search must be incident to an actual arrest, not just to probable cause that might have led to an arrest, but did not” … . A lawful search incident to arrest “requires proof that, at the time of the search, an arrest has already occurred or is about to occur” … . The search must be “substantially contemporaneous” to an actual arrest “so as to constitute one event” … . Under the circumstances of this case, we conclude that there was no actual arrest of defendant justifying the search, inasmuch as the only officer who was purported to have actually placed defendant under arrest prior to or contemporaneously with the search explicitly informed defendant that he was not under arrest at that time … . The court upheld the search as a lawful search incident to an arrest, and thus we are precluded from affirming on any alternative basis … . People v Moore, 2026 NY Slip Op 02508, Fourth Dept 4-24-26

Practice Point: If a search of defendant’s person is justified as a search incident to arrest, the defendant must, in fact, be arrested before the search.

Practice Point: Here the motion court upheld the search as a search incident to arrest; the appellate court cannot affirm on any alternative ground.

 

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PLAINTIFF, AN EMERGENCY MEDICAL TECHNICIAN (EMT), AFTER A COMPLAINT MADE BY A PATIENT TO THE DEFENDANT DEPARTMENT OF HEALTH, WAS SERVED WITH A NOTICE OF HEARING AND A STATEMENT OF CHARGES INDICATING HIS EMT LICENSE COULD BE REVOKED; PLAINTIFF SOUGHT A DECLARATION HE WAS ENTITLED TO A JURY TRIAL PURSUANT TO THE US AND NY CONSTITUTIONS; SUPREME COURT AGREED BUT THE THIRD DEPARTMENT REVERSED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Mcshan, rejected plaintiff’s argument that he was entitled to a jury trial pursuant to the Seventh Amendment of the US Constitution, or, alternatively pursuant to Article I, section 2 of the NY Constitution. Plaintiff is an Emergency Medical Technician (EMT) who responded to a call that a man (the patient) had fallen and could not get up. According to a witness, plaintiff thought the patient was faking, ridiculed him and offered only minimal assistance. The patient submitted a complaint to the defendant (the Department of Health). The defendant served plaintiff with a notice of hearing and statement of charges indicating plaintiff may be subject fines and revocation of the EMT license. Plaintiff then sued defendant seeking a declaration that he was entitled to a jury trial:

The Seventh Amendment to the US Constitution preserves the right of trial by jury in suits at common law where the value of the controversy exceeds $20 (see US Const, 7th Amend). Longstanding precedent from the Supreme Court of the United States holds that the Seventh Amendment “applies only to proceedings in courts of the United States, and does not in any manner whatever govern or regulate trials by jury in state courts, or the standards which must be applied concerning the same” … . * * *

The NY Constitution provides that “[t]rial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever” (NY Const, art I, § 2). * * *

… [P]laintiff asserts that defendant, in essence, seeks to punish him for tortious conduct through the imposition of a civil penalty, which traditionally entailed a jury trial … . What plaintiff fails to directly confront, however, is that the nature of this proceeding is predicated on a violation of the statutory scheme that regulates plaintiff’s professional license and that the remedies sought are tethered thereto. … Specifically, Public Health Law article 30 places the responsibility on defendant to regulate the provision of emergency medical services in the state (see Public Health Law §§ 3000-3034) and, in furtherance of that responsibility, defendant has promulgated regulations governing the training, examination and licensing of EMTs … .Ball v New York State Dept. of Health, 2026 NY Slip Op 02494, Third Dept 4-23-26

Practice Point: Plaintiff, an EMT, after a complaint from a patient, was facing a Department of Health hearing at which his EMT license could be revoked. Plaintiff unsuccessfully sought a declaration that he was entitled to a jury trial pursuant to the Seventh Amendment of the US Constitution and Article I, section 2 of the NY Constitution.

 

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MOTHER, WHO NOW RESIDES IN NEW YORK, MOVED TO MODIFY A TEXAS CUSTODY ORDER; BECAUSE TEXAS DID NOT CEDE JURISDICTION AND FATHER RESIDES IN TEXAS, FAMILY COURT DID NOT HAVE JURISDICTION; ALTHOUGH FAMILY COURT COULD HAVE EXERCISED TEMPORARY EMERGENCY JURISDICTION AND COMMUNICATED WITH THE TEXAS COURT, IT DID NOT (FIRST DEPT).

The First Department, reversing Family Court, in a full-fledged opinion by Justice Gesmer, determined the judge did not have jurisdiction to grant mother’s petition to modify custody. The original custody order was issued in Texas, where father resides. Mother and child, with the permission of the Texas court, now reside in New York:

This case presents the difficult situation faced by a judge addressing a petition by a party who seeks to modify a custody order issued by a court of another state. Under the Uniform Child Custody Jurisdiction and Enforcement Act [UCCJEA] (Domestic Relations Law Art. 5-A, §§ 75 — 78-a), even where New York has become the child’s “[h]ome state” (Domestic Relations Law §75-a[7]), a New York judge does not have jurisdiction to modify a custody order issued by a foreign state unless either: 1) the foreign state cedes jurisdiction; or 2) neither the parents nor the child continue to reside in the foreign state (Domestic Relations Law § 76-b). Since neither of these situations was present in this case, Family Court had no jurisdiction to modify the custody order before it. Alternatively, if the New York judge determines that it is necessary to protect a child, sibling or parent, the court may take temporary emergency jurisdiction, communicate with the foreign court, and issue a time-limited order as necessary to protect the child and t0 permit the party seeking a modification to request it in the foreign court (Domestic Relations Law § 76-c). Here, since Family Court failed to communicate with the foreign court and failed to specify a time-limited duration for its order, it also did not appropriately take emergency jurisdiction. * * *

… [H]ad Family Court recognized that Texas had exclusive, continuing jurisdiction over its custody order that the mother sought to modify, it could have contacted the Texas court in order to determine whether the Texas court would relinquish jurisdiction, thus permitting Family Court to exercise jurisdiction to modify the Texas custody order pursuant to Domestic Relations Law § 76-b. If the Texas court did not agree to relinquish jurisdiction, Family Court could then determine whether it should take emergency jurisdiction and issue a time-limited order pursuant to Domestic Relations Law § 76-c. Matter of Natalie P. v Steven L.R., 2026 NY Slip Op 02458, First Dept 4-23-26

Practice Point: A New York court does not have jurisdiction to modify an out-of-state custody order unless the foreign state cedes jurisdiction or no party continues to reside in the foreign state.

 

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THE NEGOTIATED PLEA TO A MISDEMEANOR INFORMATION WAS VACATED AND THE DISMISSAL OF THE FELONY CHARGES WAS REVERSED; THE INFORMATION WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT ALLEGE EVERY ELEMENT OF THE CHARGED OFFENSE, HERE THE OPERABILITY OF THE FIREARM; THE FELONY CHARGES WERE REINSTATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, reversing the Appellate Term, over a two-judge dissent, determined the misdemeanor information to which defendant pled guilty was jurisdictionally defective in that it did not allege every element of the offense, here the operability of the firearm:

At arraignment, the People stated that while there had not yet been grand jury action, the parties had agreed to a pre-indictment plea bargain whereby the defendant would plead guilty to the misdemeanor count in satisfaction of all charges in exchange for a sentence of two years’ probation. With the People’s consent, Criminal Court purported to dismiss the two felony counts by crossing them off the felony complaint. The court did not adhere to the procedure set forth in CPL 180.50 for reducing felony charges, the People did not file a superseding accusatory instrument, and the defendant did not waive prosecution by information. He nonetheless pleaded guilty to the remaining misdemeanor count, and the court later imposed the bargained-for sentence. The defendant subsequently appealed the judgment of conviction, arguing that the felony complaint was jurisdictionally defective as to the count to which he pleaded due to the absence of any allegation that the firearm was operable. * * *

We agree with the defendant that the instrument to which he pleaded guilty did not meet the prima facie case requirement because it lacked any allegations of operability. As such, it was jurisdictionally defective and could not serve as the basis for his plea. Consequently, the case should be “restored to its pre-pleading status” (CPL 470.55 [2] …). The record reflects that the felony counts were dismissed when the parties informed the court of their agreed-upon disposition, and thus the purported dismissal is best understood as an integral component of the defendant’s plea. The pre-pleading posture therefore restores the felony complaint … . The defendant fails to identify a sufficient basis for dismissal of the original, pre-pleading felony complaint, and we therefore remit for further proceedings. People v Burgess, 2026 NY Slip Op 02438, CtApp 4-23-26

Practice Point: Consult this opinion for insight into the consequences of failing to follow the proper procedure for reducing felony charges as part of a negotiated plea to an information. Here the information was deemed jurisdictionally defective on appeal, the plea was vacated, and the felony charges were reinstated.

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