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DEFENDANT WAS NOT NOTIFIED THAT IF HE FAILED TO PAY RESTITUTION HIS SENTENCE WOULD BE ENHANCED; ENHANCED SENTENCE VACATED AND AGREED-UPON SENTENCE IMPOSED (THIRD DEPT).

The Third Department, vacating defendant’s enhanced sentence and imposing the agreed-upon sentence, determined defendant was not given notice that his failure to pay restitution would result in an enhanced sentence. The agreed sentence was 2 to 6 years and the enhanced sentence was 4 to 12 years:

Defendant argues that County Court erred in imposing a prison sentence in excess of that promised in the plea agreement and requests that this Court resentence him to the agreed-upon term of 2 to 6 years in prison, without remanding the matter to County Court. Defendant contends that while payment of restitution was contemplated prior to sentencing, County Court never advised him that if he failed to pay restitution by the sentencing date it could impose an enhanced prison sentence. We agree. Defendant’s argument survives his unchallenged appeal waiver … . However, given that the court’s enhanced sentence was pronounced at the very end of the sentencing proceeding, without advance warning that it was considering an enhanced sentence or even a clear finding that defendant had violated an express condition of the plea agreement, we find that he had no practical ability to raise an objection and, thus, preservation was not required … . Under settled law, “the violation of an explicit and objective plea condition that was accepted by the defendant can result in the imposition of an enhanced sentence, and, conversely, a sentencing court may not impose an enhanced sentence unless it has informed the defendant of specific conditions that the defendant must abide by or risk such enhancement, or give the defendant an opportunity to withdraw his or her plea before the enhanced sentence is imposed” … . People v Nestler, 2025 NY Slip Op 05852, Third Dept 10-23-25

Practice Point: Consult this decision for an explanation of the criteria which allow a judge to ignore an agreed-upon sentence and impose an enhanced sentence.​

 

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THE RECORD DID NOT DEMONSTRATE COMPLIANCE WITH THE WAIVER-OF-INDICTMENT PROCEDURE, A JURISDICTIONAL DEFECT; PLEA VACATED; PLEA TO A SUBSEQUENT INDICTMENT INDUCED BY A CONCURRENT SENTENCE PROMISE VACATED AS WELL (FIRST DEPT).

The First Department, reversing defendant’s convictions by guilty pleas, determined the failure to comply with the waiver-of-indictment procedure required vacation of the plea, as well as the vacation of a plea induced by a concurrent sentence promise:

The record fails to demonstrate compliance with CPL 195.20. There is no evidence that defendant signed the indictment waiver in open court when the plea was entered because it is not dated as the same day as the plea. The court’s order affirming compliance with CPL 195.10 and 195.20 is also not dated and the court did not confirm on the record that defendant signed the waiver or make any reference whatsoever to it at the time of the plea. …

The failure to comply with CPL 195.20 is a jurisdictional defect that requires reversal of the judgment of conviction and dismissal of the superior court information … .

… [D]ismissal of the information necessitates dismissal of defendant’s subsequent plea … . Defendant pleaded guilty to first-degree robbery in exchange for a sentence of five years’ incarceration and five years’ postrelease supervision, to run concurrently … . Where, as here, a defendant’s guilty plea is “induced by the understanding that the sentence would be concurrent with the sentence imposed for [the prior] conviction, since set aside, the plea must be vacated” … . People v Smith, 2025 NY Slip Op 05902, First Dept 10-23-25

Practice Point: Failure to comply with the waiver-of-indictment procedure is a jurisdictional defect requiring vacation of the plea. A plea to a subsequent indictment induced by a concurrent sentence promise must also be vacated.

 

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PLAINTIFF WAS SEVERELY INJURED IN A FORKLIFT ACCIDENT AND BROUGHT THIS ACTION ALLEGING DEFECTIVE DESIGN; THERE WAS A DEFENSE VERDICT WHICH WAS REVERSED BECAUSE SOME EXPERT TESTIMONY SHOULD NOT HAVE BEEN ADMITTED AND SOME EXPERT TESTIMONY SHOULD NOT HAVE BEEN STRUCK (THIRD DEPT).

The Third Department, reversing the judgment finding the defendant’s forklift was not defectively designed, determined the admission and exclusion of expert evidence required a new trial. Plaintiff’s leg was crushed when the forklift he was operating struck a support beam in a warehouse. A portion of his leg was amputated. Defendant’s expert’s analysis was based in part on statistics that did not involve forklift-accidents and therefore was inadmissible. Plaintiff’s expert’s testimony about the need for future medical treatment was competent and should not have been struck:

Because the underlying data was specific to accidents involving defendant’s forklifts and plaintiff’s expert also relied upon and testified to that database, we find that Supreme Court properly allowed Marais [the defense expert]  to testify as to the rate of injuries sustained in the operation of defendant’s forklifts as computed from defendant’s database. However, the court abused its discretion in permitting testimony related to the utilization of the wider category of accidents involving “industrial truck and tractor operators,” as defendant failed to establish that the underlying conditions of those accidents were substantially similar to the facts presented here … . The core of Marais’ testimony was that the rate of injuries involving defendant’s forklifts was significantly lower than other industrial-related injuries. Even crediting that the federal database Marais utilized to make this comparison included forklift injuries, it also included a variety of other dissimilar industrial vehicles. In addition, there was no way to determine how many of the reported injuries therein were the result of forklift operations or, equally as important, the underlying conditions precipitating those accidents. * * *

… Supreme Court abused its discretion by striking Root’s (plaintiff’ medical expert’s] testimony and then limiting certain aspects of Thomas’ [plaintiff’s economist’s] testimony regarding plaintiff’s future medical expenses because the testimony was supported by “competent proof of necessary, anticipated medical costs through [a qualified physician] and [an] expert economist” … . Johns v Crown Equip. Corp., 2025 NY Slip Op 05856, Third Dept 10-23-25

Practice Point: Here plaintiff was injured in a forklift accident. Statistical evidence offered by defendant’s expert which included data that did not relate to forklifts should not have been admitted. To be admissible, statistical evidence must relate to substantially similar accidents.

Practice Point: Here the evidence of future medical procedures and costs offered by plaintiff’s medical expert and economist was competent and should not have been struck.

 

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THE SURETY BOND, A CONTRACT, WAS UNAMBIGUOUS AND MADE NO MENTION OF PREJUDGMENT INTEREST; THE SURETY THEREFORE WAS NOT OBLIGATED TO PAY PREJUDGMENT INTEREST; THE ARGUMENT THAT CPLR 5001 MAKES PAYMENT OF PREJUDGMENT INTEREST MANDATORY WAS REJECTED (THIRD DEPT).

The Third Department, modifying Supreme Court, determined that the terms of the surety bond governed whether the surety was obligated to pay prejudgment interest. Because the bond, a contract, did not mention prejudgment interest, the surety was not obligated to pay it. The argument that CPLR 5001 makes an award of prejudgment interest mandatory, regardless of the language of the surety bond, was rejected:

Here, the contract states that the surety will “pay for labor, materials, and equipment furnished for use in the performance of the [c]onstruction [c]ontract”; importantly to this case, there is no commitment to remit — or even mention of — prejudgment interest. “Surety bonds — like all contracts — are to be construed in accordance with their terms under established rules of contract construction. . . . [A] surety’s obligation upon its undertaking is defined solely by the language of the bond and cannot be extended by the court” … . In the matter before us, the damage claimed by plaintiff is the amount of prejudgment interest it did not receive in the judgment against the surety. However, under the clear and unambiguous terms of the payment bond, the surety had no obligation to remit same. Stone Cast, Inc. v Couch, Dale Marshall P.C., 2025 NY Slip Op 05860, Third Dept 10-23-25

Practice Point: CPLR 5001 does not make payment of prejudgment interest mandatory in breach of contract cases. The language of the surety bond, a contract, controls.​

 

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THERE WAS NO PROOF THE OFFICER WHO FRISKED THE DEFENDANT AND REMOVED A WALLET FROM DEFENDANT’S POCKET SUSPECTED THE WALLET WAS A WEAPON; THE WALLET, WHICH HAD BEEN STOLEN FROM THE VICTIM, SHOULD HAVE BEEN SUPPRESSED; BECAUSE THE WALLET TENDED TO IDENTIFY DEFENDANT AS THE ROBBER, THE ERROR WAS NOT HARMLESS; NEW TRIAL ORDERED ON THE ROBBERY-RELATED OFFENSES (SECOND DEPT).

The Second Department, reversing the robbery-related convictions and ordering a new trial, determined the police did not have a lawful basis for removing a wallet from defendant’s pocket and examining its contents. There was no evidence that the lawful frisk of the defendant indicated the presence of a weapon. The wallet, which had been stolen from the victim, should have been suppressed. Because the robber was wearing a mask, finding the wallet on defendant’s person tended to identify defendant as the robber. The error in failing to suppress the wallet, therefore, was not harmless:

… [E]ven assuming that the officers were justified in performing a protective frisk … , there was no justification for searching the defendant’s pants pocket, reaching into it, and removing the wallet. In the course of conducting a protective pat-down based upon reasonable suspicion, “[o]nce an officer has concluded that no weapon is present, the search is over and there is no authority for further intrusion” … . There was no evidence presented at the suppression hearing that, during his frisk of the defendant, Nelson [the police officer] felt anything in the defendant’s pocket that seemed to be a weapon or that could have posed a danger to the officers at the scene. Indeed, Nelson did not testify at the hearing. Accordingly, there was no lawful basis for removing the wallet from the defendant’s pocket … , and that act violated the defendant’s Fourth Amendment right to be free from unreasonable searches and seizures … . The officers committed an additional constitutional violation when, after retrieving the wallet from the defendant’s pocket, they opened it and conducted a warrantless search of its contents … . Since the officers lacked the factual predicate necessary to search the defendant’s pocket and the wallet’s contents, the People failed to satisfy their burden of going forward to establish the legality of the police conduct in the first instance, and thus the wallet and its contents, seized as a result of that search, should have been suppressed … . People v Lewis, 2025 NY Slip Op 05823, Second Dept 10-22-25

Practice Point: If a street frisk does not indicate the presence of a weapon, the seizure and examination of a wallet found in defendant’s pocket has no lawful basis.

 

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THE CLASS HAD STANDING TO SEEK DECLARATORY, INJUNCTIVE AND MONETARY RELIEF BASED UPON ALLEGATIONS THE COUNTY REAL PROPERTY TAX SYSTEM WAS IRRATIONAL, DISCRIMINATORY AND UNCONSTITUTIONAL RESULTING IN A SHIFT OF THE TAX BURDEN FROM THE WEALTHIER PREDOMINANTLY WHITE COMMUNITIES TO THE LOWER INCOME PREDOMINANTLY NONWHITE COMMUNITIES (SECOND DEPT). ​

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Barros, determined the class of property owners in Nassau County had standing to  seek declaratory, injunctive and monetary relief stemming from the “irrational, discriminatory and unconstitutional” real property tax system:

… [T]he plaintiffs allege that the County’s tax assessment policies and procedures, i.e., its freeze on reassessments from January 2010 until January 2018 and its use of a grievance procedure which was voluntary and yielded unscientific results unrelated to property values, shifted the property tax burden from wealthier, predominantly white communities in the County to lower income, predominantly nonwhite communities. The plaintiffs allege that from 2010 through 2016, property taxes on 61% of the County’s residential and commercial properties increased by only $466, or 5%, on average, whereas the average increase for the other 39% of County properties was six times that amount: $2,748, or 35.7%. They allege that most properties in predominantly nonwhite communities comprised that 39%, which amounted to an aggregate shift in the property tax burden onto the plaintiffs and those similarly situated in a sum in excess of $1.7 billion. * * *

… [T]he allegations in the complaint, if true, … establish standing, including that the plaintiffs suffered an injury-in-fact … . The plaintiffs “allege[d] that publicly-criticized systemic inequities have resulted in [more expensive] properties increasingly shouldering less of a tax burden than properties worth far less” … and alleged that they were “being treated differently from other, similarly-situated property owners, and that no rational basis exists for this allegedly disparate treatment” … . Hall v Nassau County, 2025 NY Slip Op 05796, Second Dept 10-22-25

Practice Point: Here the allegations made by the plaintiff class demonstrated an injury-in-fact stemming from the county’s property tax system, i.e., a shift in the tax burden from the wealthier predominantly white communities to the lower income predominantly nonwhite communities. Therefore the class demonstrated standing to bring the lawsuit.

 

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A DEFAULT JUDGMENT CANNOT EXCEED IN AMOUNT OR DIFFER IN THE KIND OF RELIEF DEMANDED IN THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the default judgment must be vacated because the judgment awarded relief which was not requested in the complaint:

“A default judgment cannot exceed in amount or differ in the kind of relief from that demanded in the complaint” … . Moreover, “‘at an inquest, the court may not permit amendments of the pleadings which would broaden the scope of the inquest and increase the amount of damages provable by the plaintiff'” … . Here, the complaint only sought damages … in the principal sum of $20,357. Accordingly, the judgment must be vacated and the matter remitted … for entry of an amended judgment limiting the award … to the amount originally demanded in the complaint. Deutsch v Levy, 2025 NY Slip Op 05790, Second Dept 10-22-25

Practice Point: A default judgment cannot exceed in amount or differ in the kind of relief requested in the complaint.​

 

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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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