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DEFENDANT’S CONVICTION WAS REVERSED AND DEFENDANT APPLIED FOR BAIL; SUPREME COURT DENIED THE REQUEST WITHOUT THE REQUIRED EXPLANATION AND WITHOUT MAKING THE REQUIRED FLIGHT RISK DETERMINATION; DEFENDANT FILED A HABEAS CORPUS PETITION; PETITION HELD IN ABEYANCE PENDING THE ISSUANCE OF A NEW SECURING ORDER (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Halligan, over a two-judge concurring opinion, determined the habeas petition should be held in abeyance and a new securing order which complies with Criminal Procedure Law (CPL) 510.10 should be issued:

While awaiting retrial after his criminal conviction was reversed on appeal, defendant Diego Guerra applied for a new securing order under the current version of the bail law. That statute requires a court to “make an individualized determination” as to the defendant’s flight risk and to “explain the basis for its determination and its choice of securing order on the record or in writing” (CPL 510.10 [1]; see also 530.40 [4]). Supreme Court ordered the defendant remanded to custody but neither explained that decision nor made an explicit determination as to flight risk.

Defense counsel filed this habeas petition in the Appellate Division, and we now review that Court’s dismissal of the writ. We conclude that Supreme Court abused its discretion by failing to make an individualized flight risk determination and to explain both the basis for that determination and the choice of securing order, as required by statute. Accordingly, we reverse and remand to the Appellate Division for issuance of a new securing order in compliance with CPL 510.10. People ex rel. Kon v Lynelle Maginley-Liddie, 2025 NY Slip Op 05785, CtApp 10-21-25

Practice Point: Pursuant to CPL 510.10, in denying a request for bail, the judge must make an individualized flight-risk determination and explain the basis of that determination and the choice of securing order. The failure to comply with those statutory requirements is an abuse of discretion.

 

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HERE THE OFFICE OF COURT ADMINISTRATION’S (OCA’S) BLANKET ASSERTION OF THE ATTORNEY-CLIENT PRIVILEGE RE: THE FOIL REQUEST FOR COMMUNICATIONS BETWEEN OCA AND JUDGES WAS REJECTED; ALTHOUGH UPON REMAND THE PRIVILEGE MAY BE SHOWN TO APPLY TO INIDVIDUAL, IDENTIFIED DOCUMENTS, THE OCA DID NOT ESTABLISH AN ATTORNEY-CLIENT RELATIONSHIP WITH ALL THE JUDGES SUCH THAT A BLANKET ASSERTION OF THE PRIVILEGE WAS APPROPRIATE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Halligan, over a dissenting opinion, determined that the Office of Court Administration (OCA) was not entitled to a blanket assertion of attorney-client privilege in response to a FOIL request by the NY Civil Liberties Union (NYCLU) that followed the leak of a 2021 internal OCA memorandum proposing a narrow reading of a recent court decisions which was widely distributed to judges:

… “[W]hether a particular document is or is not protected is necessarily a fact-specific determination, most often requiring in camera review” … . Without having identified or produced any documents for in camera review, OCA cannot assert a blanket privilege over the entire universe of potentially responsive documents. In reaching this conclusion, we do not suggest that Counsel’s Office could never establish such a relationship. But we decline to recognize the sweeping, ex ante privilege that OCA claims here.

We hold that OCA has failed to meet its preliminary burden of establishing an attorney-client relationship with all UCS judges. Should OCA continue to assert this privilege over any specific documents identified in response to the limited request upon which the parties have now agreed, the court on remittal should assess whether such documents fall within the asserted exemption, including by in camera review as necessary … . Matter of New York Civ. Liberties Union v New York State Off. of Ct. Admin., 2025 NY Slip Op 05784, CtApp 10-21-25

Practice Point: Here, in this FOIL case, the blanket assertion of the attorney-client privilege for communications between the Office of Court Administration (OCA) and all judges was rejected. Whether the privilege applies must be assessed in the context of a review of the individual documents identified in the request.

 

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THE FOIL REQUIREMENT THAT THE REQUESTED DOCUMENTS BE “REASONABLY DESCRIBED” IS DISTINCT FROM THE ABILITY TO RETRIEVE THE DOCUMENTS WITH “REASONABLE EFFORT;” THE TWO STANDARDS SHOULD NOT BE CONFLATED; HERE THE DEPARTMENT OF EDUCATION’S PROFESSED INABILTY TO RETRIEVE THE REQUESTED DOCUMENTS DOES NOT DETERMINE WHETHER THE REQUESTED DOCUMENTS WERE “REASONABLY DESCRIBED;” MATTER REMANDED (CT APP).

The Court of Appeals, reversing the Appellate Division for a remand to the NYC Department of Education (DOE), clarified the FOIL requirements that the requested documents be “reasonably described” and that the documents can be retrieved with “reasonable effort.” Courts have been conflating the two distinct requirements:

Despite the distinct nature and purposes of the reasonable description and reasonable effort requirements, several Appellate Division decisions have adopted a single test that merges those requirements … . But … application of that test has led to inconsistent outcomes … .

Evaluating the reasonable description and reasonable effort requirements separately should alleviate the confusion that the combined test has produced. Whether a requestor has reasonably described an electronic record does not turn on the degree of effort necessary to retrieve it, and the inability of an agency to retrieve a document with reasonable effort does not implicate whether the description in the request was sufficient to allow the agency to locate it. * * *

While the DOE’s professed inability to retrieve the documents is not determinative of whether the request reasonably describes those documents, such inability may bear on whether the DOE has the ability to retrieve the documents with reasonable effort. We therefore conclude that the matter should be remanded to the DOE for a new determination under the proper standard. Matter of Wagner v New York City Dept. of Educ., 2025 NY Slip Op 05783, CtApp 10-21-25

Practice Point: In this FOIL case, the Court of Appeals clarified that whether the requested documents are “reasonably described” is not determined by whether the requested documents can be retrieved with “reasonable effort.” The two distinct standards have been improperly conflated in several Appellate Division decisions.

 

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THE GUARANTY OF RENT DUE UNDER THE COMMERCIAL LEASE WAS A “GOOD GUY” GUARANTY; THE GUARANTOR’S LIABILITY ENDED WHEN THE TENANT VACATED THE PREMISES, NOT SUBSEQUENTLY WHEN THE LANDLORD ACCEPTED THE SURRENDER OF THE PREMISES (CT APP). ​

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Wilson, over a two-judge dissent, determined Mr. Lieberman’s guaranty of the rent due under the commercial lease terminated when the tenant vacated the premises, not when the landlord subsequently accepted the surrender of the premises. The opinion turns on interpreting the language of the guaranty and the lease:

In the world of commercial leases, a “good guy” guaranty is a limited guaranty in which the guarantor’s obligation extends only up to the point that the tenant surrenders the premises to the landlord, leaving the tenant solely responsible for rent due from that point forward … . The question in this case is whether the guaranty at issue operates in that manner. The guarantor’s liability ended when the tenant vacated the premises and, under the terms of the guaranty in this agreement, was not conditioned on the landlord’s acceptance of that surrender. Accordingly, we reverse. * * *

It would be a simple matter for parties intending to enter into a “good guy” guaranty to say so explicitly, with clear language that does not require courts to resort to rules of construction regarding superfluity or canons that aid in determining the parties’ intent. Here, although the parties could have expressed their intent in a much simpler and clearer way and avoided this litigation entirely, we conclude that the guaranty in this case is limited, confining the guarantor’s liability to damages accruing prior to the date the tenant surrendered possession of the Premises. Under the terms of the guaranty, WSA [the tenant] surrendered possession of the Premises on or about November 30, 2020 when it provided 1995 CAM [the landlord] notice, completely vacated the Premises, and relinquished control of the Premises. 1995 CAM LLC v West Side Advisors, LLC, 2025 NY Slip Op 05782, CtApp 10-21-25

Practice Point: Consult this opinion for an analysis of a “good guy” guaranty of rent due under a commercial lease.

 

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MOTHER IS PRECLUDED FROM RECOVERING PURELY EMOTIONAL DAMAGES FOR PRENATAL TORTS BASED ON A LACK-OF-INFORMED-CONSENT THEORY; THE CHILD WAS BORN ALIVE IN SERIOUS CONDITION AND DIED SOON THEREAFTER; MOTHER ALLEGED SHE DID NOT CONSENT TO THE FAILED VACUUM EXTRACTION PROCEDURE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Singas, over two dissenting opinions (three judges), determined plaintiff mother was precluded from recovering purely emotional damages for prenatal torts based on lack of informed consent. The child was born alive but died shortly thereafter. Mother alleged she did not consent to the unsuccessful vacuum extraction procedure:

In this appeal, we must determine whether this Court’s precedent limiting recovery of purely emotional damages for prenatal torts, as reaffirmed in Sheppard-Mobley v King (4 NY3d 627 [2005]), applies to medical malpractice claims premised on lack of informed consent. We hold that it does. We are further asked, by plaintiff and the Appellate Division, to overrule our unanimous holding in Sheppard-Mobley and prior cases dictating that result. Adherence to stare decisis principles leads us to decline that invitation. * * *

Though Sheppard-Mobley involved a “traditional” medical malpractice claim, its holding was clear: a birthing parent may not “recover damages for emotional harm where . . . alleged medical malpractice causes in utero injury to the fetus, subsequently born alive” (4 NY3d at 634). As our case law and the Public Health Law make clear, a lack of informed consent claim is a type of medical malpractice claim … . Thus, a straightforward reading of Sheppard-Mobley forecloses plaintiff’s claim. SanMiguel v Grimaldi, 2025 NY Slip Op 05780, CtApp 10-21-25

Practice Point: Adhering to precedent, the Court of Appeals determined mother was precluded from recovering purely emotional damages for prenatal torts based on a lack-of-informed-consent theory. The child was born alive in serious condition. Mother alleged she did not consent to the failed vacuum extraction procedure.

 

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THE NYC ADMINISTRATION FOR CHILDREN’S SERVICES (ACS) DID NOT MEET ITS BURDEN TO PROVE IT MADE DILIGENT EFFORTS TO HELP REUNITE FATHER WITH HIS CHILD IN THIS PARENTAL-RIGHTS-TERMINATION PROCEEDING (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing Family Court, determined the NYC Administration for Children’s Services (ACS) did not demonstrate “that it undertook ‘diligent efforts to encourage and strengthen the parental relationship’ or that such efforts would have been ‘detrimental to the best interests of the child’…” in this termination of parental rights proceeding:

The record below demonstrates that the child services agency failed to present evidence of diligent efforts to help reunite father and his child before it petitioned to terminate father’s parental rights. First, the agency failed to adequately accommodate and account for father’s linguistic needs. Father does not speak or understand English, but the agency never provided interpretive services during family visits, which were the most significant interactions between father, the child, the agency caseworker, and the child’s foster parents. The agency also failed to provide interpretation services at the child’s medical appointments or even give father advance notice of when those appointments were scheduled, precluding him from taking part in that critical aspect of his child’s care. Second, despite the child services agency’s belief that father’s lack of insight into mother’s mental health needs and their impact on parenting the child was the weightiest barrier to reunification, it failed to refer father to individual counseling or a support group so he could gain that insight. Finally, although the child services agency identified father’s living arrangements and onerous work schedule as further obstacles to reunification, it took few steps to help him secure appropriate housing or employment, which could have made it easier for father to visit his child.

In short, in this proceeding, rather than foster reunification, almost all of the child services agency’s actions—and its failures to take action—ensured that the parent-child bond disintegrated. Thus, the child services agency failed to meet its burden as a matter of law … . Matter of K.Y.Z. (W.Z.), 2025 NY Slip Op 05781, CtApp 10-21-25

Practice Point: Here Children’s Services did not provide an interpreter for father for meetings with the caseworker and foster parents, did not give father advance notice of the child’s medical appointments, made no effort to help father find less burdensome employment or better housing, and did not provide counseling to help him gain insight into mother’s mental illness. “Diligent efforts” to reunite father and child were not made by the agency.

 

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THERE WAS NO EVIDENCE MOTHER’S MENTAL HEALTH ISSUES IMPAIRED THE CHILDREN; ONE INCIDENT IN WHICH MOTHER SLAPPED HER SON WHEN HE WAS RUDE AND DISRESPECTFUL DID NOT SUPPORT A FINDING OF EXCESSIVE CORPORAL PUNISHMENT (FIRST DEPT).

The First Department, reversing Family Court, determined the evidence did not support the finding that mother had neglected her children. There was no evidence mother’s mental health issues put the children at risk. The evidence also did not support neglect based on excessive corporal punishment. Mother slapped her 14-year-old son once with an open hand when he refused to provide the password for his phone and was rude and disrespectful:

Although the record here suggests that the mother, who had been diagnosed with major depressive disorder, cannabis use disorder, adjustment disorder, and post-traumatic stress disorder, may have been non-compliant with her mental health treatment, the record does not contain evidence sufficient to support a finding of “a link or causal connection between the basis for the neglect petition and the circumstances that allegedly produce the child’s impairment or imminent danger of impairment” … . The only conduct linked to the mother’s mental health was the 14-year-old child’s statements to the caseworker that he feared being with the mother outside of the home because she believed they were being watched, and that she once took a photograph of a man on the subway platform whom she believed was following them. * * *

The mother slapped the 14-year-old child with an open hand when he refused to provide her with the passcode to his cell phone, was rude and disrespectful, and told her he wished she were dead. The mother testified that she demanded to see the child’s cell phone after the school called her to express concern over a change in the child’s behavior and his cell phone usage. The record indicates that the child did not report that the slapping caused him pain, nor were there any marks or bruising on his face or body. A parent has a common-law privilege to use reasonable physical force to discipline a child … . Matter of I.G. (D.V.), 2025 NY Slip Op 05766, First Dept 10-21-25

Practice Point: In the context off child neglect it is not enough to prove mother has mental health issues, it must be shown that mother’s mental health issues impair the children.

Practice Point: A parent has a common-law privilege to use reasonable physical force to discipline a child. A single open-handed slap in response to disrespectful and rude behavior by a 14-year-old is not “excessive corporal punishment.”

 

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DEFENDANT TOOK A CELL PHONE PICTURE OF THE VICTIM IN THE SHOWER THROUGH A HIGH WINDOW; HE CLAIMED THE PHOTO WAS TAKEN ACCIDENTALLY WHEN HE WAS TRYING TO PHOTOGRAPH LIGHTNING; DEFENDANT, IN ANSWER TO A QUESTION BY THE POLICE ABOUT WHETHER THIS WAS A “PATTERN,” ADMITTED HE HAD SURREPTITIOUSLY TAKEN SIMILAR PHOTOS OF HIS WIFE; THE PREJUDICIAL EFFECT OF HIS APPARENT ADMISSION TO A “PATTERN” OF SIMILAR BEHAVIOR OUTWEIGHED ITS PROBATIVE EFFECT; NEW TRIAL ORDERED (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction and ordering a new trial, determined that prior bad act “Molineux” evidence should not have been admitted because its probative value was outweighed by its prejudicial effect. Defendant, using his cell phone, had taken a picture of the victim in the shower through a high window. In his interview with the police defendant admitted taking similar pictures of his wife: “When confronted with a conversation that law enforcement allegedly had with his wife and whether the subject conduct was in fact part of a ‘pattern,’ defendant … admitted that he had previously engaged in similar surreptitious photography of his wife.” Defendant claimed the picture of the victim was taken accidentally when he was trying to photograph lightning:

[From the police interview with defendant:] “Now what’s the deal with when I asked your wife if this has been an issue in the past, she says you’ve done it to her, the exact same thing in the shower, and you guys have had blowouts,” adding, “So this has been a pattern, you know, it’s not like it was an accidental lightning strike thing.” Defendant replied, “I understand that. Yes, it’s my wife. I’m madly in love with her. I think she’s absolutely beautiful. Yeah, I’ve done that to my wife.” * * *

A criminal purpose cannot be readily inferred from the generally equivocal act of taking a photograph, later deleted, in the location where defendant was standing. Thus, defendant’s admission to previously taking surreptitious photographs of another woman while she showered because of his sexual interest in her was directly relevant to that legitimate nonpropensity issue … . Further, by inserting an innocent explanation for the charged conduct into the case, defendant’s prior similar acts had obvious relevance as tending to refute the possibility of mistake or accident … . * * *

… [A]lthough the challenged prior bad act evidence was highly probative with respect to the foregoing legitimate purposes, there is no way around the fact that the gratuitous “pattern” allegation made by law enforcement while questioning defendant substantially tipped the scale. It was an abuse of discretion not to redact that portion of the interview, together with defendant’s ambiguous “I understand that” response, prior to admitting the recording into evidence — particularly in view of how excisable it was. People v Siciliano, 2025 NY Slip Op 05721, Third Dept 10-16-25

Practice Point: Consult this decision for an example of evidence which fits a Molineux category [here a seeming admission to a “pattern” of taking surreptitious photos of women in the shower to counter defendant’s claim the photo of the victim in the shower was taken accidentally], but is inadmissible because the evidence is more prejudicial than probative.

 

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EVIDENCE DEFENDANT’S AND THE CODEFENDANT’S ATTORNEYS SHARED THE SAME OFFICE AND WORKED CLOSELY TOGETHER REQUIRED A HEARING ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION; DEFENDANT ARGUED HE WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL BY A CONFLICT OF INTEREST (THIRD DEPT).

The Third Department, reversing County Court, determined a hearing was required on defendant’s motion to vacate his conviction on the ground that his attorney was ineffective because of a conflict of interest between his attorney and the codefendant’s attorney. The two attorneys (Reilly and Roberts) have the same address and there was evidence that they worked closely together, even if they were not members of the same firm:

… [W]hen “an ineffective assistance of counsel claim is premised upon a perceived conflict of interest, the law draws a distinction between actual and potential conflicts” … . First, “[a]n actual conflict exists if an attorney simultaneously represents clients whose interests are opposed and, in such situations, reversal is required if the defendant does not waive the actual conflict” … . The same is true for attorneys associated with the same firm simultaneously representing clients in a criminal matter … . Alternatively, where a potential conflict exists, reversal is only required where “a defendant shows that a potential conflict actually operated on the conduct of [the] defense” … . * * *

… County Court … recognized that it was undisputed that Reilly and Roberts maintained the same address for their law practice. Each of the affidavits in support further reflected that the attorneys gave the impression that they were associated in the same law firm or that they had worked closely with each other. Both defendant and the codefendant acknowledged that they were not advised of a potential conflict of interest, and our review of the record fails to reveal any consent or waiver by defendant for such alleged conflicts. While it is true that defendant failed to provide an affidavit from either attorney, or explain why he was unable to obtain same, this is not automatically fatal to his motion — particularly where many of the facts are corroborated in the record … . This is particularly true considering that the codefendant alleged his speedy trial challenge was waived by Roberts to allow defendant to accept a plea and be sentenced, demonstrating that Reilly and Roberts had been at least aware of each other’s strategy in resolving the charges against their respective client. Yet, there exists a stark contrast of the sentences between defendant, who received 12 years of incarceration with 5 years of postrelease supervision, and the codefendant, who allegedly received time served. These differences are not explained in the record before us, and give rise to questions of fact about whether the relationship between Reilly and Roberts may have operated on the defense by impairing the best strategy for defendant … . People v Rasul, 2025 NY Slip Op 05722, Third Dept 10-16-25

Practice Point: Defendant moved to vacate his conviction on the ground he was deprived effective assistance of counsel because of a conflict of interest. There was evidence his and the codefendant’s attorneys shared the same address and worked closely together. The nonrecord evidence of a potential conflict of interest required a hearing.

 

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THE SEARCH WAS NOT A VALID INVENTORY SEARCH; THE HANDGUN FOUND IN DEFENDANT’S VEHICLE SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, reversing County Court’s denial of defendant’s suppression motion, determined the search of defendant’s vehicle was not a valid inventory search and the handgun should have been suppressed:

“To be constitutionally valid, an inventory search must be [reasonable and] conducted according to a familiar routine procedure” … . The established procedure should be designed to “meet the legitimate objectives of the search,” such as protecting the owner’s property and insuring police against claims of lost or stolen property, “while limiting the discretion of the officer in the field”. Here, the second deputy failed to adhere to the requirements set forth in the relevant inventory policy. Namely, he did not obtain the approval of his shift supervisor before beginning the alleged inventory procedure. Further, although not explicitly written in the policy, the second deputy also admitted that he deviated from normal procedure when he failed to complete the inventory report as he conducted the inventory.  People v Grandoit, 2025 NY Slip Op 05720, Third Dept 10-16-25

Practice Point: Consult this decision for insight into how the legitimacy of an inventory search is determined by a reviewing court.​

 

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