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REMITTAL IS NECESSARY BECAUSE THE SORA RISK-LEVEL-ASSESSEMENT WAS NOT SUPPORTED IN THE RECORD BY FINDINGS OF FACT AND CONCLUSIONS OF LAW AS REQUIRED BY THE CORRECTION LAW; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THAT AN AVAILABLE GROUND FOR A DOWNWARD DEPARTURE WAS NOT RAISED (THIRD DEPT).

The Third Department, reversing County Court, determined (1) appellate review of the SORA risk-level assessment was precluded by the judge’s failure to place on the record its findings of fact and conclusions of law as required by the Correction Law, and (2) defendant did not receive effective assistance of counsel in that there was a ground for a downward departure which was not raised. Defendant was assessed 30 points based on a prior conviction for endangering the welfare of a child. However there was no sexual offense involved in that conviction and a downward departure was therefore possible:

“The failure to include the necessary findings prevents this Court from conducting a meaningful appellate review of defendant’s designation as a risk level two sex offender and would, alone, require remittal for County Court to comply with the statute” (… see Correction Law § 168-n [3] …). * * *

… County Court was required to assess 30 points under risk factor 9 based upon defendant’s undisputed prior conviction of endangering the welfare of a child, “without regard to whether the underlying offense involved conduct that is sexual in nature” … . This is because “[t]he Board decided to treat endangering the welfare of a child as if it were a sex crime because it generally involves sexual misconduct, especially when it is part of a plea bargained disposition” … . However, the risk assessment guidelines also provide that, “[w]here a review of the record indicates that there was no such [sexual] misconduct, a departure may be warranted” … . People v Pribble, 2025 NY Slip Op 06936, Third Dept 12-11-25

Practice Point: If a SORA risk-level-assessment is not supported by findings of fact and conclusions of law in the record appellate review is not possible and remittal is required.

Practice Point: If, as here, there is an available ground for a downward departure which is not raised, the defendant did not receive effective assistance of counsel.

 

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HERE SUPREME COURT CORRECTLY REFUSED TO VACATE THE DEFAULT JUDGMENT IN THIS PERSONAL INJURY CASE; BUT THE SECOND DEPARTMENT VACATED THE $385,000 INQUEST-JUDGMENT BECAUSE PLAINTIFF’S TESTIMONY DID NOT SUFFICIENTLY DEMONSTRATE THE EXTENT OF THE INJURIES (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined Supreme Court correctly denied defendant’s motion to vacate a default judgment in a personal injury case because she failed to provide a reasonable excuse. Plaintiff alleged he stepped in a hole on defendant’s property, twisted his foot and fell. But the $385,000 damages judgment was vacated by the Second Department because plaintiff’s testimony at the inquest was deemed insufficient to demonstrate the extent of the injuries. A new inquest was ordered:

… [A]lthough this Court is not relieving the defendant of her default, “[a]n unwarranted and excessive award after inquest will not be sustained, as to do otherwise ‘would be tantamount to granting the plaintiffs an open season at the expense of a defaulting defendant'” … . Here, the plaintiff’s vague testimony at the inquest was insufficient to determine to what extent the plaintiff’s injuries were attributable to the subject accident and, therefore, whether the amount awarded was warranted. Thus, under the circumstances of this case, the Supreme Court should have granted that branch of the defendant’s motion which was to vacate the judgment, and we remit the matter to the Supreme Court, Nassau County, for a new inquest on the issue of damages, and for the entry of an appropriate amended judgment thereafter … . Albano v Roehrig, 2025 NY Slip Op 06839, Second Dept 12-10-25

Practice Point: Despite losing a motion to vacate a default judgment, a defendant may still successfully move to vacate a judgment awarded after an inquest on the ground the evidence offered at the inquest did not sufficiently demonstrate the extent of the plaintiff’s injuries.

 

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WHEN THE JUDGE’S LAW CLERK SPOKE TO THE JURORS ABOUT A JURY NOTE WHILE THE JURORS WERE DELIBERATING, THE CLERK DISCUSSED CONCEPTS OF NEGLIGENCE, FAULT AND CERTAIN FACTS OF THE CASE; PLAINTIFFS’ MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new trial after a defense verdict, determined that the law clerk’s discussion with the jurors while they were deliberating, during which concepts of negligence and fault and certain facts were discussed, constituted interference with the deliberations and usurpation of the role of the court. The motion to set aside the verdict should have been granted:

Following the verdict, the plaintiffs moved pursuant to CPLR 4404(a) to set aside the jury verdict in favor of the defendant on the issue of liability in the interest of justice and for a new trial. In an affirmation in support of the motion, the plaintiffs’ counsel stated that he had learned, after the jury was discharged, that when the clerk went to speak to the jurors about writing the actual question on the form, the clerk improperly communicated with the jurors in a way that went beyond the Supreme Court’s instructions. In further support of their motion, the plaintiffs submitted an affidavit from a former juror (hereinafter the first juror) who averred, among other things, that the clerk had discussed with the jurors the concepts of negligence and fault, as well as certain facts about the case. The first juror averred that the clerk was in the jury room with the jurors for approximately three to five minutes, and that following that discussion, the jurors “did not feel it [was] necessary to submit further questions to the Court.” * * *

“A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise” … . “Litigants are entitled, as a matter of law, to a fair trial free from improper comments by counsel or the trial court” … . “The interest of justice thus requires a court to order a new trial where comments [have] deprived [a] party of a fair trial or unduly influenced a jury” … .

… [T]he clerk’s conduct cannot be found to be harmless. By offering opinions and/or explanations on the meaning of the legal concepts at issue in the trial, the clerk impermissibly interfered in the jury’s deliberations and usurped the role of the court to, in consultation with counsel, instruct the jurors on the law applicable to the facts. Saporito-Elliott v United Skates of Am., Inc., 2025 NY Slip Op 06886, Second Dept 12-10-25

Practice Point: The law clerk’s discussion with the deliberating jurors about concepts of negligence, fault and certain facts of the case interfered with the deliberations and usurped the role of the court. The verdict, therefore, must be set aside.

 

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HERE THE SUBPOENAS SEEKING DISCOVERY FROM A NONPARTY WERE DEFECTIVE IN THAT THEY DID NOT EXPLAIN THE CIRCUMSTANCES OR REASONS FOR THE REQUESTED DISCLOSURE; THEREFORE THE MOTION TO QUASH THE SUBPOENAS SHOULD HAVE BEEN GRANTED WITHOUT ANY NEED ON THE PART OF THE MOVANT TO DEMONSTRATE THE SOUGHT DISCLOSURE IS IRRELEVANT OR FUTILE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the subpoenas seeking discovery from a nonparty were defective, therefore the motion to quash the subpoenas should have been granted:

Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty of “matter material and necessary in the prosecution or defense of an action” in possession of a nonparty, providing the nonparty is apprised of the “circumstances or reasons such disclosure is sought or required” … . “The notice requirement of CPLR 3101(a)(4) ‘obligates the subpoenaing party to state, either on the face of the subpoena or in a notice accompanying it, the circumstances or reasons such disclosure is sought or required'” … . “Once that is satisfied, it is then the burden of the person moving to quash a subpoena to establish either that the requested disclosure ‘is utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious'” … .

Here, the subpoenas were defective, since neither the subpoenas nor any accompanying documents set forth “the circumstances or reasons [the] disclosure is sought or required” (CPLR 3101[a][4] … . Ruppert v Ruppert, 2025 NY Slip Op 06884, Second Dept 12-10-25

Practice Point: A subpoena seeking disclosure from a nonparty must meet the requirements of CPLR 3101(a)(4) by including an explanation of the circumstances or reasons for the disclosure. If that information is not provided, the subpoena is defective and must be quashed on that ground.

 

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HERE, IN SEEKING LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST A CITY HOSPITAL ALLEGING MEDICAL MALPRACTICE, THE PETITIONER DID NOT SUBMIT THE MEDICAL RECORDS; THEREFORE THE PETITIONER DID NOT SHOW THAT THE HOSPITAL HAD TIMELY KNOWLEDGE OF THE CLAIM; LEAVE TO FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court and dismissing the action, determined the petition for leave to file a late notice of claim, alleging medical malpractice, negligence and violation of the Public Health Law on behalf of decedent, should not have been granted. The petitioner did not establish that the city had timely knowledge of the claim, which is the most important criterium for allowing late notice:

​”Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff” … . The petitioner’s “failure to submit evidence of the contents of the alleged records is fatal to [her] argument that the [appellant] acquired actual knowledge from the existence of such records” … . Additionally, there is no suggestion in the record that the appellant refused to produce the medical records or that the petitioner sought to compel the appellant to produce any papers necessary to the determination of the petition pursuant to CPLR 409(a) … . Matter of Giustra v New York City Health & Hosps. Corp., 2025 NY Slip Op 06862, Second Dept 12-10-25

Practice Point: The most important criterium for leave to file a late notice of claim is evidence the city had timely knowledge of the claim. Medical records, depending on their contents, can (but do not necessarily) demonstrate timely knowledge of the claim. Here petitioner did not submit the medical records and therefore did not even attempt to demonstrate the city’s timely knowledge of the nature of the medical malpractice claim. The mere existence of medical records is not enough.​

 

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TAKING THE APPEAL AS AN EXCEPTION TO THE MOOTNESS DOCTRINE, THE FIRST DEPARTMENT DETERMINED THE ADMINISTRATION FOR CHILDREN’S SERVICES (ACS) DID NOT DEMONSTRATE THE APPPELLANT JUVENILE WAS PROPERLY TRANSFERRED FROM A NONSECURE TO A SECURE FACILITY; THE JUVENILE’S MISBEHAVIOR WAS NOT THAT SERIOUS; ACS DID NOT DEMONSTRATE IT HAD EXHAUSTED LESS SEVERE ALTERNATIVES (FIRST DEPT).

The First Department, reversing Family Court, considering an otherwise moot appeal because the issue recurs and juveniles are only placed for a limited amount of time, determined the Administration for Children’s Services (ACS) did not demonstrate the need to place the appellant (juvenile) in a secure facility:

Under Family Court Act § 355.1(2), Family Court can modify a dispositional order “upon a showing of a substantial change of circumstances” by the agency, to place a youth in a secure facility, if “the respondent has demonstrated by a pattern of behavior that he or she needs a more structured setting and the social services district has considered the appropriateness and availability of a transfer to an alternative non-secure or limited secure facility” … . Notably, behaviors meriting a modification include “disruptions in facility programs; continuously and maliciously destroying property; or, repeatedly committing or inciting other youth to commit assaultive or destructive acts” … .

Here, ACS alleged that two incidents where appellant went absent without consent (AWOC) over the course of two months constituted a “pattern of behavior” warranting his placement in a secure facility. The record reflects that, during the first AWOC incident …, appellant “darted out the front door and ran” from a non-secure facility. During the second incident …, appellant fled through a damaged door at a limited secure facility after other youths broke the door while trying to escape. While this behavior is problematic, it simply does not rise to the level of seriousness reflected in the examples provided in the statute, i.e. “continuously and maliciously destroying property” or “repeatedly committing or inciting other youth to commit assaultive or destructive acts” … .

ACS also failed to show that it first “considered the appropriateness and availability of a transfer to an alternative non-secure or limited secure facility” before seeking modification as it was required to do … . According to ACS policies, “[m]odifications must be considered as an option only when all efforts to avoid the modification have been exhausted.” … ACS did not present any affirmations or provide any witness testimony regarding the limited secure facility’s ability to address appellant’s behavior … . Matter of J.D., 2025 NY Slip Op 06807, First Dept 12-9-25

Practice Point: Consult this decision for insight into the level of a juvenile’s misbehavior which will justify placement in a secure facility, as well as the less severe alternatives which must be tried or demonstrated ineffective first.

 

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ALTHOUGH THE DEFENSE IN THIS MURDER CASE WAS BASED ON THE LACK OF EVIDENCE THAT DEFENDANT WAS THE ASSAILANT, THE DEFENDANT WAS STILL ENTITLED TO A JUSTIFICATION-DEFENSE JURY-INSTRUCTION; THE DENIAL OF THE REQUEST FOR THE JUSTIFICATION-DEFENSE JURY CHARGE WAS REVERSIBLE ERROR; IN ADDITION, THE TRIAL COURT VIOLATED CVIL RIGHTS LAW 52 BY ALLOWING THE MEDIA TO RECORD TESTIMONIAL PORTIONS OF THE TRIAL (THIRD DEPT).

The Third Department, reversing defendant’s murder conviction and ordering a new trial, determined the defense request for a justification-defense jury-instruction should have been granted. The defendant and the victim got into a bar fight after defendant called the victim names. The victim, who was larger than the defendant, initially knocked defendant down. After the defendant got up, the victim was stabbed. The knife which stabbed the victim was not found It was not clear who was the initial aggressor in the fight. And there was evidence the victim may have had a knife. The Third Department noted that the court erred when it allowed audiovisual coverage of the testimonial portion of the trial (Civil Rights Law 52):

“A justification charge must be given if there is any reasonable view of the evidence, when it is considered in the light most favorable to the defendant, that would allow the jury to conclude that the defendant’s actions were justified” … . In order “for a defendant to be entitled to a justification charge with respect to the use of deadly physical force, the record must contain evidence that the defendant reasonably believed that the victim was using or was about to use deadly physical force and that the defendant could not safely retreat” … . A charge on the defense of justification remains appropriate where a defendant pursued other defense strategies at trial, including that he or she did not intend to cause the victim’s death … ,was not present or was not the assailant … .The failure to provide a justification charge under such circumstances constitutes reversible error warranting a new trial … .

Here, the evidence in the record fails to indicate who was the initial aggressor with respect to the use of physical force, but rather suggests both individuals started fighting immediately after someone — presumably defendant — yelled derogatory remarks at the victim. It was unrefuted that the victim was larger than defendant and had gained the upper hand during the fight, knocking defendant down with several blows. The further question is whether or not defendant was the initial aggressor with respect to deadly physical force … . … [T]he police recovered an open folding knife on the patio adjacent the picnic tables where the altercation began, near a pool of blood. … [A] reasoned view of the evidence is that the victim had unfolded the knife prior to being stabbed by defendant. * * * [W]e believe that there was a reasonable view of the evidence which would permit the jury to conclude that defendant’s conduct was justified … . People v Mack, 2025 NY Slip Op 06757, Third Dept 12-4-25

Practice Point: No matter what the defense strategy is, a defendant is entitled to a justification-defense jury instruction if a reasonable view of the evidence would support finding defendant’s conduct justified.

Practice Point: Civil Rights Law 52 prohibits audiovisual coverage of the testimonial portion of a criminal trial.

 

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SUPREME COURT SHOULD NOT HAVE RELIED ON THE “LOCALITY RULE” TO DISMISS THE OPINION OF PLAINTIFF’S EXPERT BECAUSE THE EXPERT PRACTICED MEDICINE IN ANOTHER STATE: WHEN AN EXPERT TESTIFIES ABOUT STANDARDS APPLICABLE THROUGHOUT THE UNITED STATES, THE LOCALITY RULE SHOULD NOT BE INVOKED (THIRD DEPT).

The Third Department, reversing Supreme Court in this medical malpractice action, determined plaintiffs’ expert affidavit was not conclusory or speculative and raised triable questions of fact. The Third Department noted that Supreme Court should not have dismissed plaintiffs’ expert’s (Grant’s) opinion on the ground Grant practiced medicine in a different state. Although the “locality rule” has not been set aside, it does not affect the validity of an opinion based on standards applicable throughout the United States:

… [W]e briefly address Supreme Court’s reliance on the fact that Grant practiced medicine in another state to ostensibly dismiss his opinions. Over 125 years ago in Pike v Honsinger (155 NY 201 [1898]), the Court of Appeals promulgated what has become known as the locality rule … . Under this rule, “the prevailing standard of care governing the conduct of medical professionals demands that a doctor exercise that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where the doctor practices” … . While this rule has not been set aside, this Court has indicated that “the development of vastly superior medical schools and postgraduate training, modern communications, the proliferation of medical journals, along with frequent seminars and conferences, have eroded the justification for th[is] rule” … . With the rise of the Internet and the attendant ease with which information is disseminated, this is even more true today. “Thus, where, as here, a medical expert proposes to testify about minimum standards applicable throughout the United States, the locality rule should not be invoked” … . Kosinski v Wladis, 2025 NY Slip Op 06772, Third Dept 12-4-25

Practice Point: In a med mal case, where an expert testifies about standards applicable throughout the United States, the “locality rule” requiring the application of local standards should no longer be invoked. Here plaintiffs’ expert’s opinion was erroneously dismissed because the expert practiced medicine in a different state.

 

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PLAINTIFF TRIPPED OVER A FLOOR TO CEILING WOODEN BRACE IN A HOME WHICH WAS UNDER CONSTRUCTION; THE THIRD DEPARTMENT HELD THAT THE OPEN AND OBVIOUS NATURE OF THE BRACE DID NOT WARRANT THE AWARD OF SUMMARY JUDGMENT TO THE DEFENDANTS ON THE LABOR LAW 200 CAUSE OF ACTION (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the open and obvious nature of condition (a wooden brace over which plaintiff tripped) did not warrant summary judgment in defendants’ favor on the Labor Law 200 cause of action. The home was under construction and the brace ran at a 45 degree angle from the floor to the ceiling in the middle of the kitchen:

… [D]efendants failed to meet their prima facie burden as questions of fact remain as to whether defendants maintained the worksite in a reasonably safe condition, precluding summary judgment. … [D]efendants presented an affidavit of David Rubin, a former CEO of a general contracting firm with 45 years of experience in the field of general construction. Rubin reviewed, among other things, photographs of the worksite and observed there were two-by-four wooden braces set up throughout the home that were “necessary and fundamental to the construction process.” He explained that the brace plaintiff tripped over was “conspicuous and not hidden from sight, and indeed, plaintiff had already seen that particular brace prior to his incident.” Ultimately, he opined that neither the use nor the placement of the brace was negligent as it was necessary to support the structure at that stage of construction.

Although Rubin placed great emphasis on the fact that the brace was open and obvious and that plaintiff saw it prior to his fall, this Court has repeatedly held that “the open and obvious nature of an allegedly dangerous condition does not, standing alone, necessarily obviate a [general contractor’s] duty to maintain [the worksite] in a reasonably safe condition” … . Rather, the readily observable nature of the wooden brace “merely negated any duty that defendant[s] owed plaintiff to warn of [the] potentially dangerous condition[ ]” … . Nor does plaintiff’s testimony at his deposition that he saw the wooden brace prior to his fall defeat his claim as his “previous knowledge of a defective condition, if any, may be considered by a jury in assessing comparative negligence” … . Accordingly, “[v]iewing the evidence in the light most favorable to plaintiff as the nonmoving party, a question of fact remains as to whether defendants’ [worksite was] maintained in a reasonably safe condition. That question is for the trier of fact to resolve” … . Sullivan v Flynn, 2025 NY Slip Op 06773, Third Dept 12-4-25

Practice Point: Here the Third Department noted that a condition which is open and obvious and of which the plaintiff was aware before he was injured is not a sufficient ground for the award of summary judgment on a Labor Law 200 cause of action. Here a wooden floor to ceiling brace in the middle of the kitchen in a house under construction, over which plaintiff tripped, was deemed to raise a question of fact.

 

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ON APPEAL, CONVICTIONS FOR “INCLUSORY, CONCURRENT COUNTS” WERE VACATED, AND SEPARATE CONVICTIONS FOR A “CONTINUING OFFENSE” WERE VACATED (SECOND DEPT). ​

The Second Department determined several inclusory concurrent counts and certain convictions for a “continuing offense” must be vacated:

CPL 300.30(4) provides that “[c]oncurrent counts are ‘inclusory’ when the offense charged in one is greater than any of those charged in the others and when the latter are all lesser offenses included within the greater” … . CPL 300.40(3)(b) provides, in relevant part, that with respect to inclusory concurrent counts, “[a] verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted” … . Here, the defendant was convicted of five counts of criminal possession of a weapon in the second degree … and three counts of criminal possession of a firearm … . Because the counts charging criminal possession of a weapon in the second degree and criminal possession of a firearm are inclusory concurrent counts, the convictions of criminal possession of a firearm … must be vacated … .

… The defendant’s convictions of criminal possession of a weapon in the second degree under counts 4 and 10 of the indictment subjected the defendant to double jeopardy. “An indictment cannot charge a defendant with more than one count of a crime that can be characterized as a continuing offense unless there has been an interruption in the course of conduct” … . Here, the indictment charged the defendant with three separate counts of criminal possession of a weapon in the second degree under Penal Law § 265.03(3) for the uninterrupted possession of single weapon. Such possession was continuous and “‘constituted a single offense for which he could be prosecuted only once'” … . As such, we vacate the defendant’s convictions of criminal possession of a weapon in the second degree under counts 4 and 10 of the indictment, vacate the sentences imposed thereon, and dismiss those counts of the indictment. People v Stewart, 2025 NY Slip Op 06737, Second Dept 12-3-25

Practice Point: Here criminal possession of firearm convictions were vacated as “inclusory, concurrent counts” of criminal possession of a weapon second degree.

Practice Point: Here three criminal possession of a weapon convictions related to a single “continuing offense” of criminal possession of a weapon. Two of the convictions were therefore vacated.

 

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