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THE PEOPLE DID NOT PROVE A VERMONT OFFENSE WAS EQUIVALENT TO A NEW YORK VIOLENT FELONY OFFENSE; THEREFORE THE PERSISTENT VIOLENT FELONY ADJUDICATION WAS VACATED (SECOND DEPT).

The Second Department, vacating defendant’s persistent violent felony offender adjudication, determined the People did not prove that a Vermont assault and robbery offense was the equivalent to a New York violent felony offense:

While the defendant admitted at sentencing that he was the person convicted of two prior felonies … , the People failed to satisfy their burden of establishing that the defendant was convicted of an offense in a foreign jurisdiction that is equivalent to a violent felony in New York … . The People failed to demonstrate that the Vermont offense of assault and robbery with a dangerous weapon … is equivalent to a New York criminal offense designated as a violent felony … . Accordingly, we modify the judgment by vacating the defendant’s adjudication as a persistent violent felony offender and the sentences imposed thereon, and we remit the matter to the Supreme Court … for resentencing … . People v Parris, 2025 NY Slip Op 07028, Second Dept 12-17-25

Practice Point: If a foreign conviction is the basis of a persistent violent felony offender adjudication, the People must prove the foreign offense is the equivalent of a New York violent felony. If the People fail to prove the equivalence the adjudication will be vacated on appeal.

 

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THE ADMINISTRATIVE LAW JUDGE WENT AHEAD WITH THE DRIVER’S LICENSE REVOCATION HEARING IN THE ABSENCE OF THE OFFICERS WHO ARRESTED THE DRIVER FOR DWI; THE DRIVER’S ARGUMENT HE WAS DENIED DUE PROCESS BECAUSE HE WAS UNABLE TO CROSS-EXAMINE THE OFFICERS WAS REJECTED; THE DRIVER HAD SUBPOENAED THE OFFICERS BUT CHOSE NOT TO USE THE CPLR 2308 PROCEDURE FOR ENFORCEMENT OF THE SUBPOENAS; THE AVAILABILITY OF THE ENFORCEMENT PROCEDURE WAS DEEMED “SUFFICIENT PROCESS” (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Wilson, determined a driver, Monaghan, whose license was automatically suspended when he refused to submit to a chemical test at the time he was arrested for DWI, was not denied due process rights when the Department of Motor Vehicles (DMV) Administrative Law Judge (ALJ) revoked his license despite the arresting officers’ failure to appear at the revocation hearing. Monaghan had subpoenaed the officers and argued he was denied his right to cross-examine them. The Court of Appeal noted that Monaghan could have sought to enforce the subpoenas but chose not to. The Court found that the procedure for enforcement of subpoenas is not unduly burdensome. Therefore requiring Monaghan to use that procedure to exercise his right to cross-examine the officers does not amount to a denial of due process:

… [W]e reject the contention that Mr. Monaghan’s was deprived of his due process right to cross-examine the Troopers. His private interest in retaining his driver’s license and the government’s interest in public safety are both significant. The due process analysis, here, turns on the benefit and burden of requiring a motorist to seek judicial enforcement of a subpoena. Mr. Monaghan chose not to avail himself of the process set forth in CPLR 2308 (b). The process of applying to enforce a nonjudicial subpoena is not so unduly burdensome as to constitute a deprivation of due process of law. Our holding is consistent with appellate courts’ decisions rejecting due process challenges in other types of administrative proceedings where the petitioner has not attempted to enforce a subpoena … . It is undisputed that Mr. Monaghan did not seek enforcement, nor did he request an adjournment to do so. Matter of Monaghan v Schroeder, 2025 NY Slip Op 06959, CtApp 12-16-25

Practice Point: Here the officers who arrested the driver for DWI did not appear at the license revocation hearing. The driver argued his inability to cross-examine the officers deprived him of due process of law. However, the driver had subpoenaed the officers. He could have used the CPLR 2308 (b) procedure for enforcing the subpoenas but chose not to. The availability of the enforcement procedure was deemed sufficient process.

 

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PLAINTIFF, WHO WAS HIRED BY DEFENDANT TEMPLE AS A “FULL TIME JEWISH EDUCATOR,” WAS FIRED AFTER WRITING A BLOG POST CRITICIZING ISRAEL AND ZIONISM; PLAINTIFF SUED ALLEGING HER FIRING WAS A VIOLATION OF THE LABOR LAW; THE COURT DID NOT ADDRESS THE LABOR-LAW-VIOLATION THEORY FINDING THAT THE “MINISTERIAL EXCEPTION” PRECLUDED THE APPLICATION OF EMPLOYMENT DISCRIMINATION LAWS TO THE RELATIONSHIP BETWEEN A RELIGIOUS INSTITUTION AND ITS MINISTERS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over two concurrences, determined the ministerial exception precluded this employment discrimination action brought by plaintiff, a “full time Jewish educator” employed by the Westchester Reform Temple. Plaintiff was fired after writing a blog post criticizing Israel and Zionism. She alleged her firing was a violation of Labor Law 201-d (2) which prohibits an employer from taking adverse action against an employee based on legal “recreational activities.” The court did not address the viability of the Labor-Law theory. The court held that plaintiff’s lawsuit was precluded by the ministerial exception, which precludes application of employment discrimination laws to relationships between a religious institution and its ministers:

We need not resolve today questions such as whether the [Labor Law 201-d (2)] covers blogging specifically or public expression generated during any protected activity, because the ministerial exception dispositively bars Plaintiff’s claim. That exception “precludes application of [employment discrimination] legislation to claims concerning the employment relationship between a religious institution and its ministers” … . Requiring a religious institution “to accept or retain an unwanted minister, or punishing [them] for failing to do so” both “infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments” and “violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions” … . * * *

Defendants invoked the ministerial exception here as grounds for dismissal on a CPLR 3211 (a) (1) motion. Such a motion “may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . Defendants rely on Plaintiff’s offer letter, which is appended as an exhibit to the motion to dismiss. It states that Plaintiff was responsible for guiding the development of programs such as “Shabbat, Havdalah, and other teen led events and initiatives”; planning, supporting, and attending “Confirmation” experiences; and supporting the “Rabbi’s Table initiative.” In her fifteen weekly hours of teaching, she was responsible for “Chevruta (1:1 tutoring for our learners),” “Pre-bimah tutoring,” and “Parsha of the week.” And she was responsible for furthering the Temple’s “mission,” including by “support[ing] the development of a strong Jewish identity” and “bringing Torah to life and inspiring Jewish dreams.” Sander v Westchester Reform Temple, 2025 NY Slip Op 06958, CtApp 12-16-25

Practice Point: The “ministerial exception” precludes the application of employment discrimination laws to the relationship between a religious institution and its ministers. Here the ministerial exception precluded a suit alleging plaintiff was fired from her teaching job at the defendant temple for a blog post criticizing Israel and Zionism.

 

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HERE THE TOWN PASSED A LOCAL LAW REQUIRING THE CLOSURE OF A LANDFILL OWNED AND OPERATED BY SMI; BECAUSE SMI’S PROPERTY IS THE VERY SUBJECT OF THE LOCAL LAW, SMI NEED NOT DEMONSTRATE “ENVIRONMENTAL HARM” AS AN ELEMENT OF STANDING TO CHALLENGE THE TOWN’S STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) DECLARATION THAT THE CLOSURE OF THE LANDFILL WILL NOT HAVE A SIGNIFICANT ADVERSE ENVIRONMENTAL IMPACT; SMI HAS STANDING TO CHALLENGE THE TOWN’S NEGATIVE SEQRA DECLARATION ON THE GROUND THAT THE TOWN DID NOT TAKE THE REQUIRED “HARD LOOK” AT THE EVIDENCE BEFORE ISSUING THE NEGATIVE DECLARATION (CT APP). ​

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, determined the petitioner-plaintiff Seneca Meadows, Inc. (SMI), the owner and operator of a landfill, had standing to challenge the town’s State Environmental Quality Review Act (SEQRA) finding that the closure of the landfill pursuant to a Local Law would not have a significant adverse environmental impact. SMI argued the town did not take the required “hard look” at the evidence before issuing its negative SEQRA declaration:

“SEQRA is designed to promote efforts which will prevent or eliminate damage to the environment and enhance human and community resources . . . by injecting environmental considerations directly into governmental decision making; thus the statute mandates that social, economic and environmental factors shall be considered together in reaching decisions on proposed activities” … . Standing to sue under SEQRA, as with other statutory causes of action, requires that the plaintiff establish an injury-in-fact and that the in-fact injury fall within the zone of interest that the statute protects … . Thus, to sue under SEQRA, a plaintiff must ordinarily show that their injury falls within the statute’s environmental zone of interest by “demonstrat[ing] that it will suffer an injury that is environmental and not solely economic in nature” … .

However, [Matter of Har Enters. v Town of Brookhaven (74 NY2d 524 [1989])] established that “no such specific allegation [of environmental harm] is necessary” when the petitioner’s property is “the very subject” of the government’s action … . That case involved a rezoning of the petitioner’s property from commercial to residential use … . As the Court explained, “[i]t seems evident that if any party should be held to have a sufficient interest to object—without having to allege some specific harm—it is an owner of property which is the subject of a contemplated rezoning” … . Following that ruling, a few years later, the Court held in [Gernatt Asphalt Prods. v Town of Sardinia (87 NY2d 668 [1996])] that a landowner whose potential mining operations would be eliminated by rezoning was directly impacted by the governmental land use regulation and thus had standing under Har to challenge the government’s lack of compliance with SEQRA … . Matter of Seneca Meadows, Inc. v Town of Seneca Falls, 2025 NY Slip Op 06961, CtApp 12-16-25

Practice Point: When the petitioner’s property is the subject of the government’s action, the petitioner need not demonstrate “environmental harm” to have standing to challenge the government’s SEQRA declaration. Here the town passed a local law requiring closure of petitioner’s landfill. Petitioner need not demonstrate “environmental harm” to have standing to challenge the town’s SEQRA negative declaration on the ground the town did not take the required “hard look” at the evidence before finding that the landfill closure would not have a significant adverse environmental impact.

 

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CERTAIN EMPLOYEES OF THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS) WERE NOT ENTITLED TO “PANDEMIC UNEMPLOYMENT ASSISTANCE” DURING THE SUMMER OF 2020 PURSUANT TO THE “CORONAVIRUS AID, RELIEF AND ECONOMIC SECURITY (CARES) ACT;” THE COURT’S ANALYSIS IS TOO DETAILED TO FAIRLY SUMMARIZE HERE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, determined certain employees of the Department of Corrections and Community Supervision (DOCCS) who were not offered employment during the summer of 2020 because of the COVID-19 pandemic were not entitled to “pandemic unemployment assistance” under the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The opinion has a detailed analysis of the federal and state unemployment insurance systems and how they interact with the COVID-related legislation. Matter of Klosterman v New York State Dept. of Corr. & Community Supervision, 2025 NY Slip Op 06960, CtApp 12-16-25

 

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FAMILY COURT ERRONEOUSLY DIRECTED SERVICE UPON MOTHER IN THIS MODIFICATION OF CUSTODY PROCEEDING “BY EMAIL” WHICH DOES NOT COMPLY WITH DOMESTIC RELATIONS LAW 75-G; ALLEGATIONS THAT MOTHER DESTROYED EVIDENCE OF SERVICE AND WAS AWARE OF THE PROCEEDINGS ARE IRRELEVANT; THE COURT NEVER ACQUIRED JURISDICTION OVER MOTHER (FIRST DEPT).

The First Department, reversing Family Court, determined the court never acquired jurisdiction over mother in this modification of custody proceeding. Father was directed to serve mother by email and by Initiating international service through the US Central Authority, a method not compliant with Domestic Relations Law 75-g:

That statute requires that notice be given by personal delivery or by any form of mail requesting a receipt and that the court may only direct an alternative form of service upon a finding that “service is impracticable” by personal delivery or by mail. However, the father’s motion papers contained no indication that personal service or service by any form of mail requesting a receipt was “impracticable” (Domestic Relations Law § 75-g[1][c]). Therefore, the Family Court erred in directing service by email and the court never acquired personal jurisdiction over the mother by the email service that was effectuated.

The father claims that the mother was personally served … . However, the record contains no affidavit of service on the mother. The father’s assertion in his brief that the mother destroyed evidence of service does not establish that lawful service was made, as it was his responsibility to prove that service was properly carried out in the first place … . Moreover, the fact that the mother became aware of the proceeding at some point … does not confer jurisdiction if there has not been compliance with the statutorily prescribed methods of service of process … . Matter of John F.B. v Maria U., 2025 NY Slip Op 06905, First Dept 12-11-25

Practice Point: Here father was directed by the court to serve mother by “email” which does not comply with Domestic Relations Law 75-g. The court never acquired jurisdiction over mother, despite her awareness of the proceedings.

 

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DEFENDANT WAS CONVICTED OF SECOND DEGREE MURDER (DEPRAVED INDIFFERENCE) AND FIRST DEGREE MANSLAUGHTER (RECKLESS) FOR THE DEATH OF A SEVERELY ABUSED CHILD; THE EXTENSIVE DISCUSSIONS OF THE “DEPRAVED INDIFFERENCE” ELEMENT BY THE MAJORITY AND DISSENT ILLUSTRATE THE DIFFICULTY OF PROVING BOTH “DEPRAVITY” AND “INDIFFERENCE” (THIRD DEPT).

The Third Department, affirming defendant’s second degree murder (depraved indifference) and first degree manslaughter (reckless) convictions for the death of a severely abused child, over an comprehensive dissent, determined the facts supported the “depraved indifference” element. The dissent disagreed:

Contrary to defendant’s contentions, the fact that he began immediate life-saving measures on the victim and called his wife to summon medical aid does not dictate a different result. Rather “[t]he People were required to show that defendant had the necessary mens rea of callous indifference when the crime occurred, not at all times thereafter” … . Thus, where the defendant is the one who inflicted the fatal injuries, the sincerity and motivation behind post-injury rescue efforts distill to “implicated credibility questions for the jury to resolve” … . We find no reason to disturb the jury’s finding that defendant’s “belated expressions of concern did not reflect any [genuine] interest in the victim’s welfare” … .

From the dissent:

Ask 12 random people on the street to describe the mental state of someone who stomps on a young child’s stomach so hard that it kills him. Each will say something like, “cruel,” “brutal,” [*9]”monstrous” — maybe even “depraved” … . The jurors here rationally arrived at the same conclusion — and, indeed, “the horrific nature of defendant’s assault of the [victim] was clearly intended to be encompassed within the depraved indifference murder of a child statute” … .

But depravity is not enough. Depraved indifference to human life “is something even worse” … . To prove this rare state of mind, there must be evidence of “wanton cruelty, brutality, or callousness, combined with an utter indifference as to whether the victim lives or dies” … . That combination is not present here. Consequently, defendant’s conviction of depraved indifference murder must be reversed, and that count of the indictment dismissed. People v Greene, 2025 NY Slip Op 06931, Third Dept 12-11-25

Practice Point: “Depraved indifference” is a troublesome concept. How do the People prove both “depravity” and “indifference?” Consult this decision for an in-depth discussion.

 

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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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