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EQUIVOCAL AND CONTRADICTORY EVIDENCE DID NOT MEET THE “CLEAR AND CONVINCING” STANDARD FOR THE ISSUANCE OF AN “EXTREME RISK PROTECTION ORDER (ERPO)” (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Corcoran, determined the equivocal evidence submitted by the state police was not sufficient to warrant an Extreme Risk Protection Order (ERPO). Respondent, a Department of Motor Vehicles (DMV) employee, had expressed animosity toward his supervisor. During a videoconference meeting with DMV personnel and respondent, a rifle and a handgun were visible near the respondent. Respondent’s vague statements, which were interpreted as threats of violence, were equivocal, and may have referred to respondent’s intent to sue the DMV:

At the hearing, the DMV labor relations representative who conducted the first videoconference meeting testified that respondent appeared intense and aggravated and repeatedly expressed animosity toward his supervisor. The agency director who conducted the second meeting the next day described how respondent sat to the side of the video frame while a rifle, mounted on a stand, and a handgun were prominently displayed on a table behind him. A screenshot of the participants and the firearms display was received in evidence. According to the director, the placement of the firearms “felt very intentional.” He nevertheless completed the hearing without commenting on the firearms, explaining that he wanted to address respondent’s grievance without creating any unnecessary distraction. The following day, respondent called the labor relations representative, asserted that his supervisor had engaged in unlawful discrimination and suggested that he should be supervised by someone else during the investigation. The investigator’s report annexed to the petition reflected that respondent had acknowledged animosity in his “chain of command” and stated that “be[ing] under something that condescending is not going to go well. It’s not a good idea to work under someone in that matter [sic] and you’re going to see later that it’s not a good idea.” … The labor relations representative told the investigator that respondent may have been referring to his stated plan to sue DMV for defamation or discrimination. * * *

… [P]etitioner’s proof of respondent’s alleged threat was equivocal or contradictory, such that petitioner failed to satisfy the requisite burden of proof. Petitioner’s documentary evidence and the testimony adduced at the hearing suggest that respondent’s statement about things “not going to go well” connoted future litigation. … To be sure, Supreme Court acted well within its discretion in finding that respondent testified untruthfully about his knowing display of firearms and that petitioner’s witnesses were more credible. Nonetheless, based upon the equivocal characterizations of respondent’s implied threat contained within petitioner’s own documentary proof and the testimony adduced at the hearing, we are constrained to conclude that petitioner did not establish by clear and convincing evidence that respondent was likely to engage in conduct that would result in serious harm to others. Matter of New York State Police v Brian LL., 2026 NY Slip Op 05832, Third Dept 10-8-26

Practice Point: Consult this opinion for insight into the “clear and convincing” standard of proof in the context of a petition for an “Extreme Risk Protection Order (ERPO).” The standard is not met by equivocal and contradictory proof.

 

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NOTHING IN THE RECORD SUPPORTED THE PROSECUTOR’S REASON FOR STRIKING A JUROR, I.E., THAT THE JUROR “SPOKE BROKEN ENGLISH;” DEFENDANT’S BATSON CHALLENGE TO THE STRIKING OF THE JUROR SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing the judgment of conviction and ordering a new trial, determined the defendant’s “Batson” challenge to the striking of a juror (juror No. 95] should have been granted. The record indicates the prosecutor’s reason for striking the juror, i.e., the juror’s “broken English,” was pretextual:

Evaluating the record … becomes problematic in instances where, like here, the nature of the race-neutral explanation given by a prosecutor pertains to a trait — i.e., speech and the ability to communicate — which is not easily captured by the record. Indeed, traits such as accent, dialect, tone, cadence, fluency or manner of speech are not typically represented on a transcript, but nonetheless remain part of the overall calculus as to whether an individual is perceived by others as being able to communicate effectively. This is why it is essential for trial courts, which are in a “unique position to verify . . . [what] is not clearly established in the appellate record” … , to create meaningful records for a reviewing court to uphold its determinations … .

Consequently, we are constrained to agree with defendant that County Court erred in denying his Batson challenge at step three. …[T]he record reflects that neither County Court nor defense counsel indicated any trouble understanding juror No. 95. Rather, County Court and defense counsel expressly disagreed with that characterization during voir dire … . Thus, there is nothing in the record to otherwise suggest that juror No. 95 had difficulty understanding or answering the limited questions posed by County Court, and the trial prosecutor did not ask any questions of this juror. In view of the sparseness of the record at trial and on remittal, as well as the comments and conduct of the trial prosecutor, a determination at step three that juror No. 95 did have difficulty communicating would, at best, be speculative … . Accordingly, since County Court’s determination was unsupported by the voir dire transcript, not based on its recalled observations or the assessment of the prosecutor’s credibility, and is otherwise without a basis in the record, we must reverse and remit the matter for a new trial … . People v Duplessis, 2026 NY Slip Op 05830, Third Dept 10-8-26

​Practice Point: The Third Department stressed the importance of creating a record during a Batson challenge to striking a juror, “particularly where innate traits such as language are at issue.” Here the prosecutor’s “race-neutral” reason for striking a juror, i.e., that the juror spoke “broken English,” had no support in the record. The appellate court, therefore, was “constrained” to find the reason “pretextual.”

 

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CAUSES OF ACTION AGAINST “BIG OIL” ALLEGING “GREENWASHING” IN VIOLATION OF NYC’S CONSUMER PROTECTION LAW PROPERLY DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Friedman, affirmed the dismissal of the “product greenwashing” and “corporate greenwashing” causes of action in a suit by the City of New York against Exxon Mobil, Royal Dutch Shell, Shell and BP. The opinion is a comprehensive discussion of the application of the City’s Consumer Protection Law (CPL) to the defendants’ claims re: the environmental benefits of fossil fuel products and the role of renewable energy in defendants’ businesses:

In this action, plaintiff City of New York alleges that defendant energy companies … have engaged in “deceptive . . . trade practice[s]” proscribed by the City’s Consumer Protection Law (CPL) (Administrative Code of the City of NY § 20-700 et seq.). The City’s first cause of action alleges that defendants violated the CPL “by misrepresenting the purported environmental benefits of using their fossil fuel products” — a practice referred to as “product greenwashing.” The City’s second cause of action alleges that defendants also violated the CPL “by creating a misleading impression of the role of renewables [i.e., renewable energy] in their businesses” — a practice referred to as “corporate greenwashing.”

The City now appeals to this Court from Supreme Court’s order granting defendants’ motion to dismiss both causes of action. The court dismissed the first cause of action, for product greenwashing, as against all defendants, pursuant to CPLR 3211(a)(7), on the ground that the alleged “product greenwashing” statements did not, as a matter of law, have “the capacity, tendency or effect of . . . deceiving or misleading consumers” (Administrative Code § 20-701), as required to constitute a deceptive trade practice within the meaning of the CPL. … The court also dismissed the second cause of action, for corporate greenwashing, as against all defendants, pursuant to CPLR 3211(a)(7), on the ground that the alleged “corporate greenwashing” statements were not “made in connection with the sale . . . or in connection with the offering for sale of consumer goods or services,” as also required to constitute a deceptive trade practice within the meaning of the CPL. … [W]e affirm. City of New York v Exxon Mobil Corp., 2026 NY Slip Op 05851, First Dept 10-8-26

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THE ASSETS TRANSFERRED TO IRREVOCABLE TRUSTS FOR THIRD PARTY BENEFICIARIES ARE NOT SUBJECT TO EQUITABLE DISTRIBUTION, TRIAL COURT REVERSED OVER AN EXTENSIVE DISSENT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court in this divorce proceeding, over a comprehensive dissent, determined the assets transferred to irrevocable trusts were not subject to equitable distribution:

While a trial court has broad discretion in fashioning an equitable distribution award, that discretion is not unlimited. Courts must respect the parties’ economic decisions made during the marriage, and may not disregard the legal character of property based solely on equitable concerns. As the Court of Appeals has emphasized, courts should not second-guess how parties chose to structure and allocate their assets during the marriage (see Mahoney-Buntzman v Buntzman, 12 NY3d 415, 420-421 [2009]). Consistent with this principle, assets transferred to valid, irrevocable trusts for third-party beneficiaries are not subject to equitable distribution absent evidence that the trust is a sham or that a spouse retains revocation power or a beneficial interest … . C.S. v R.H., 2026 NY Slip Op 05849, First Dept 10-8-26

Practice Point: Assets transferred to Irrevocable trusts for third-party beneficiaries are not subject to equitable distribution.

 

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THE JUDGE SHOULD NOT HAVE DELEGATED HER AUTHORITY TO DETERMINE PARENTAL ACCESS TO ONE OF THE CHILDREN IN THIS ABUSE/NEGLECT PROCEEDING (SECOND DEPT).

The Second Department, reversing (modifying) Family Court in this abuse and neglect proceeding, held Family Court should not have delegated its authority to determine father’s parental access to one of the children:

… Family Court … found that the father sexually abused and neglected Alexander and derivatively abused and neglected Maximillian, and conditioned the father’s parental access with Alexander and Maximillian upon the consent of Alexander. * * *

… [A] court may not delegate its authority to determine parental access to either a parent or a child … . … [W]e remit the matter … for a new determination as to the father’s parental access with Alexander and Maximillian in accordance with the best interests of those children … . Matter of Alexander M.R. (Manuel D. J. R.), 2026 NY Slip Op 05790, Second Dept 10-7-26

Practice Point: A judge cannot delegate the authority to determine parental access.​

 

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THE WORDING OF THE WILL RAISED QUESTIONS ABOUT THE INTENT OF THE TESTATOR BECAUSE SEVERAL CHILDREN WERE MISIDENTIFIED AND ONE WAS OMITTED; THE PETITION FOR CONSTRUCTION OF THE WILL SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined the wording of the will raised questions about the testator’s intent. Therefore the petition for construction of the will pursuant to SCPA (Surrogate’s Court Procedure Act) section 1420 should not have been denied without a hearing:

“The cardinal rule of construction of a will is to carry out the intent of the testator” … . “All rules of interpretation are subordinated to the requirement that the actual purpose of the testat[or] is sought and effectuated as far as is consonant with principles of law and public policy” … . “Intent is not to be gleaned by focusing upon any one particular word, sentence, or provision; rather, it must be ascertained from a perusal of the entire will by a reader mindful of the particular facts and circumstances under which the provisions of the instrument were framed” … . “The heirs of a testator are favored by the policy of the law and cannot be disinherited upon mere conjecture, and when the testator intends to disinherit them he must indicate that intention clearly” … .

Here, the Surrogate’s Court should not have, in effect, denied the petition and dismissed the proceeding without a hearing … . The allegations in the verified petition, inter alia, that several of the decedent’s children were misidentified in Article THIRD and that Article THIRD contained the word “children” but omitted the name of one of the decedent’s children … , were sufficient to indicate that the testator’s intent was not clear and unambiguous.

Accordingly, the Surrogate’s Court should have held a hearing to give the petitioner the opportunity to submit proof to establish the decedent’s intent … . Matter of Covington, 2026 NY Slip Op 05785, Second Dept 10-7-26

Practice Point: Here the wording of the will raised questions about the testator’s intent. The petition for construction of the will should not have been denied without a hearing at which petitioner could present evidence of the decedent’s intent.

 

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A PUTATIVE CLASS ACTION SUIT ALLEGING MUSEUM ADMISSION TICKETS FAILED TO DISCLOSE THE FULL PRICE OF THE TICKET PROPERLY SURVIVED A MOTION TO DISMISS; THE “VOLUNTARY PAYMENT DOCTRINE” DID NOT APPLY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ottley, in a matter of first-impression, affirming the denial of the motion to dismiss, determined plaintiff stated a cause of action for a violation of the Arts and Cultural Affairs Law and had standing to bring a class action suit. The essence of the violation was the purported failure to disclose the full price of a ticket for admission to a museum, which included taxes and fees, prior to the ticket purchase. The cause of action is statutory. The “voluntary payment doctrine” was deemed inapplicable:

Arts and Cultural Affairs Law § 25.07(4) provides that the defendant shall disclose the total cost of the ticket, including ancillary fees, prior to the ticket being selected for purchase and that the “service charge, or any other fee or surcharge to the purchaser” be “disclosed in a clear and conspicuous manner” (id.). Arts and Cultural Affairs Law § 25.33 provides that “any person who has been injured by reason of a violation of this article may bring an action in his or her own name to enjoin such unlawful act, an action to recover his or her actual damages or fifty dollars, whichever is greater, or both such actions. The court may award reasonable attorney’s fees to a prevailing plaintiff.” * * *

The voluntary payment doctrine “bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law” … .

… [W]e conclude … the voluntary payment doctrine does not bar the plaintiff’s claims alleging violations of Arts and Cultural Affairs Law § 25.07(4) because such claims are predicated on a lack of full disclosure … . Cammayo v 1AND8, Inc., 2026 NY Slip Op 05762, Second Dept 10-7-26

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THERE WAS NO PROOF PLAINTIFFS HAD NOTICE DEFENDANT WAS ACTING AS AN AGENT FOR A LIMITED LIABILITY COMPANY WHEN HE SIGNED THE CONSTRUCTION-LOAN CONTRACT; THE BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant, the principal in a limited liability company (LLC), told plaintiffs he was the “owner of the property” at the time the construction-loan contract was signed and did not disclose the loan was for the company (the LLC). Therefore defendant’s argument he was acting as an agent for the LLPC when the contract was signed was rejected:

“An agent who enters into a contract on behalf of a disclosed principal is not personally liable unless there is clear and explicit evidence of the agent’s intention to be personally bound” … . However, “[t]he party claiming, as an affirmative defense to liability for breach of contract, that an agency relationship existed must demonstrate that the agency relationship and the identity of the principal were disclosed” … . “A principal is considered to be ‘disclosed’ if, at the time of a transaction conducted by an agent, the other party to the contract had notice that the agent was acting for the principal and of the principal’s identity” … .

… [T]here was no evidence that the existence of 1719 Hylan, LLC, was disclosed to the plaintiffs at the time of the loan. The plaintiffs’ principal testified that the defendant told her that he was the owner of the property, that there was no discussion that the construction project was on behalf of a company, and that the defendant never told her that the loan was for a company. The defendant presented no evidence to the contrary. Therefore, the defendant failed to meet his burden of demonstrating that the plaintiffs knew that he was acting on behalf of 1719 Hylan, LLC. 710 E Elizabeth Ave, LLC v Jhong Kim, 2026 NY Slip Op 05756, Second Department 10-7-26

Practice Point: In this breach of contract action, defendant argued he signed the contract as an agent for a limited liability company and was not personally liable. But defendant did not submit any proof the plaintiff was given notice he was signing as an agent for a company. Therefore the agency defense was rejected.

 

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THE LIMITED INQUIRY CONDUCTED BY THE JUDGE BEFORE HOLDING THE TRIAL IN DEFENDANT’S ABSENCE WAS INSUFFICIENT TO DEMONSTRATE DEFENDANT FORFEITED HIS RIGHT TO BE PRESENT AT THE TRIAL (SECOND DEPT).

The Second Department, reversing the judgment of conviction, determined the inquiry conducted by the judge when the defendant did not show up for trial was insufficient. The record did not establish defendant had deliberately forfeited his right to be present:

… [T]he court held a colloquy on the record, during which the court and defense counsel stated that the defendant had previously assured them of his intention to be present at trial. Defense counsel further informed the court that he did not know where the defendant was, and had looked for him in the courthouse. Defense counsel stated that he had been unable to reach the defendant that morning, but had received a message from the defendant’s mother indicating that the defendant was “on the way.” …  Following limited inquiry, the court commenced the trial in the defendant’s absence shortly after 12:00 p.m.

“‘A defendant’s right to be present at a criminal trial is encompassed within the confrontation clauses of the State and Federal Constitutions'” … . A defendant may “forfeit that right by deliberately absenting himself [or herself] from the proceedings” … . However, “‘before proceeding in the defendant’s absence, the court has an obligation to inquire into the surrounding circumstances to determine if the defendant’s absence is deliberate and to recite on the record the reasons for its finding,'” and “‘[t]he failure to conduct such an inquiry constitutes reversible error'” … . Furthermore, “[w]hile the right to be present may, under some circumstances, be waived by a defendant’s conduct, trial in absentia is not thereby automatically authorized” … . “Rather, the trial court must exercise its sound discretion upon consideration of all appropriate factors, including the possibility that [the] defendant could be located within a reasonable period of time, the difficulty of rescheduling trial and the chance that evidence will be lost or witnesses will disappear” … .

Here, the Supreme Court erred in conducting the trial in the defendant’s absence without sufficient inquiry into the circumstances surrounding the defendant’s absence, and the record is therefore insufficient to establish that the defendant deliberately absented himself from the proceedings and thereby forfeited his right to be present … . Furthermore, the record does not reflect that the court considered all of the appropriate factors before proceeding in the defendant’s absence … . People v Jorge, 2026 NY Slip Op 05811, Second Dept 10-7-26

Practice Point: Consult this decision for insight into the inquiry a judge must make before proceeding with a trial in the defendant’s absence.

 

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GENERAL BUSINESS LAW 349 RENDERS UNFAIR, DECEPTIVE OR ABUSIVE BUSINESS PRACTICES UNLAWFUL; THE STATUTE APPLIES ONLY TO CONSUMER ORIENTED CONDUCT; HERE THE DISPUTE OVER A PRIVATE INSURANCE CONTRACT FOR A RACING YACHT WAS NOT WITHIN THE AMBIT OF THE STATUTE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the dispute about insurance coverage for a racing yacht was not the type of consumer-related activity to which General Business Law 349 applies:

General Business Law § 349(a) declares unlawful all “[u]nfair, deceptive, or abusive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state” … . “To successfully assert a claim under General Business Law § 349(h), ‘a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice'” … . “‘[P]arties claiming the benefit of [General Business Law § 349(h)] must, at the threshold, charge conduct that is consumer oriented'” … . “The conduct need not be repetitive or recurring but defendant’s acts or practices must have a broad impact on consumers at large” … . “Private contract disputes, unique to the parties, . . . [do] not fall within the ambit of the statute” … .

The plaintiff failed to allege that the defendant’s acts or practices had a broad impact on consumers at large, and the plaintiff did not assert any facts that would support such an allegation. The allegations in the complaint merely refer to a private contract dispute over the procurement of insurance coverage and the processing of a claim that is unique to these parties … . USMMA Sailing Found., Inc. v Hilb Group of N.Y., LLC, 2026 NY Slip Op 05824, Second Dept 10-7-26

Practice Point: Consult this decision for insight into the nature of “consumer oriented conduct” which is within the ambit of General Business Law 349.​