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DEFENDANT PLED GUILTY IN RETURN FOR A SENTENCE WHICH WAS LATER DETERMINED TO BE UNAUTHORIZED; DEFENDANT THEN CONSENTED TO A RESENTENCE WHICH WAS LONGER THAN THAT ORIGINALLY PROMISED; BECAUSE DEFENDANT WAS NOT EXPRESSLY AFFORDED THE OPPORTUNITY TO WITHDRAW HER PLEA, THE RESENTENCE WAS VACATED AND THE MATTER REMITTED; THE SENTENCING JUDGE CAN FASHION A SENTENCE WHICH IS IN ACCORDANCE WITH THE ORIGINAL PROMISE BY REDUCING THE OFFENSE CHARGED (THIRD DEPT).

The Third Department, vacating the resentence and remitting the matter, determined defendant was not given the opportunity withdraw her plea when she was resentenced:

Defendant … contends that because she entered a guilty plea with a sentencing promise — 10 years in prison, to be followed by five years of postrelease supervision — that was unauthorized, her plea was not knowing, voluntary or intelligent and she should have been afforded an opportunity to withdraw her guilty plea prior to resentencing. Initially, we note that “the illegality of the promised sentence does not, in itself, render a defendant’s guilty plea unknowing and involuntary” … and defendant did not preserve her voluntariness claim … . Regarding resentencing, where, as here, a plea bargain provides for a sentence that is not legal and an illegal sentence is imposed, “the trial court ha[s the] inherent power to correct [the] illegal sentence” … . However, “when a defendant’s guilty plea has been induced by a sentencing promise that the court later determines is inappropriate or illegal, that court must afford the defendant the opportunity to withdraw the plea or honor the plea-inducing promise” … . County Court could have either afforded defendant an opportunity to withdraw her guilty plea which, if she declined, would permit imposition of a lawful sentence, or “reduce[d] the sentence or the crime charged so that the sentence upon which the plea bargain was based can legally be imposed,” thereby honoring defendant’s sentencing expectations that induced her guilty plea … . However, at resentencing, the court did not “impose another lawful sentence that comport[ed] with . . . defendant’s legitimate [sentencing] expectations” … but, instead, merely procured defendant’s consent to a longer resentence which was not comparable to that contemplated by the plea agreement, without expressly affording her an opportunity to withdraw her guilty plea prior to that consent. This was error and, accordingly, the resentence must be vacated and the matter remitted to County Court to afford defendant an opportunity to move to withdraw her guilty plea or fashion a remedy to honor the sentencing promise … . People v Harrigan, 2025 NY Slip Op 03669, Third Dept 6-18-25

Practice Point: Here defendant consented to a longer sentence than that which was promised without being afforded the opportunity to withdraw her plea. The resentence was therefore vacated. The Third Department noted that the judge has the power to fashion a sentence which is in accordance with the original promise by reducing the charged crime.

 

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THE PETITIONER, A NEW YORK CITY FIREFIGHTER, DID NOT DEMONSTRATE THE FIRE DEPARTMENT IMPROPERLY DENIED PETITIONER’S REQUEST FOR A RELIGIOUS EXEMPTION FROM THE COVID VACCINE MANDATE; SUPREME COURT REVERSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined petitioner-firefighter did not demonstrate the NYC Fire Department (FDNY) improperly denied petitioner’s request for a religious exemption from the COVID vaccine mandate:

Pursuant to the NYCHRL [New York City Human Rights Law], it is “an unlawful discriminatory practice” for an employer “to refuse or otherwise fail to engage in a cooperative dialogue within a reasonable time with a person who has requested an accommodation” for, among other possibilities, “religious needs” (Administrative Code § 8-107[28][a][1]). Here, the petitioner failed to demonstrate that the appellants’ process for resolving requests for a reasonable accommodation from the vaccine mandate did not meet the requirements of the NYCHRL regarding cooperative dialogue … . The appellants provided information on the process for reviewing accommodation requests related to the vaccine mandate and informed employees on how to appeal request denials. The record demonstrates that the petitioner availed himself of this process. The record also shows that there were multiple communications between the petitioner, the FDNY, and the [City of New York Reasonable Accommodation Appeals Panel] regarding the petitioner’s accommodation request. The petitioner failed to establish that, under the unique circumstances present at the time of the vaccine mandate, the NYCHRL required a more robust or individualized dialogue.

The petitioner also failed to demonstrate that the determination to deny him a religious exemption from the vaccine mandate was arbitrary and capricious … . Matter of Smith v New York City Fire Dept., 2025 NY Slip Op 03728, Second Dept 6-18-25

Practice Point: Here the petitioner-firefighter had won in Supreme Court and was reinstated with back pay. But the Second Department reversed finding petitioner was not entitled to a religious exemption from the COVID vaccine mandate.

 

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THE FAMILY OFFENSE OF HARASSMENT REQUIRES A COURSE OF CONDUCT; A SINGLE, ISOLATED INCIDENT IS INSUFFICIENT (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined the evidence of the family offense of harassment was not sufficient. A single isolated incident is not enough:

” … [A] person commits the family offense of harassment in the second degree when, with intent to harass, annoy, or alarm another person, he or she ‘engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose'” … . “[T]here is no question that an isolated incident cannot support a finding of harassment” … .

Here, contrary to the Family Court’s finding, the father failed to establish by a fair preponderance of the evidence that the mother committed the family offense of harassment in the second degree, as the father failed to identify more than an isolated incident (see Penal Law § 240.26[3] …). The father testified to only one isolated incident involving a verbal dispute that he had with the mother and her husband … . That dispute occurred on the driveway of the father’s home when the mother and her husband dropped off the child at the father’s home, instead of at a police station, which the father claimed was the agreed upon exchange location. Matter of Martinez v Toole, 2025 NY Slip Op 03721, Second Dept 6-18-25

Practice Point: The family offense of harassment requires proof of a course of conduct, a single incident does not suffice.​

 

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HERE PLAINTIFF’S PROPOSED CONSTRUCTION OF APARTMENTS WAS PROHIBITED BY A LOCAL LAW; PLAINTIFF ALLEGED THE BIAS OF THE CHAIRPERSON OF THE PLANNING BOARD INFECTED THE PLANNING BOARD’S RECOMMENDATION TO THE TOWN BOARD (WHICH ENACTED THE LAW); THOSE ALLEGATIONS RAISED A QUESTION OF FACT PRECLUDING SUMMARY JUDGMENT FINDING THE LOCAL LAW VALID (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Judge Garry, determined questions of fact precluded summary judgment in favor of the town in this dispute over the approval of the construction of apartments. Plaintiffs alleged that the chairperson of the planning board, who owned adjacent property, was biased against the proposed construction and his bias infected the planning board’s recommendation:

As Supreme Court correctly noted, the enactment that plaintiffs seek to invalidate in this action was a product of the Town Board, not the Planning Board … . We further note that it is expressly within the power of the Planning Board to submit advisory opinions to the Town Board for proposed amendment to the zoning law … . For these reasons, it is possible that the connection of the alleged bias to the action of the Town Board may ultimately be insufficiently direct. Supreme Court’s decision apparently rejected plaintiffs’ allegations on this ground. Nonetheless, accepting plaintiffs’ allegations as true, the extent to which the long-term Chairperson’s alleged bias infected the Planning Board’s recommendation to the Town Board that multifamily dwelling development be reconsidered, the Town’s subsequent investigation thereof, and the Town Board’s ultimate adoption of the challenged local law limiting same is not amenable to resolution as a matter of law at this procedural stage … . Thus, any declaration regarding the validity of Local Law No. 2022-08 was premature, and Supreme Court’s order must be reversed in full so that the action may proceed through the ordinary course. PF Dev. Group, LLC v Town of Brunswick, 2025 NY Slip Op 03671, Third Dept 6-18-25

Practice Point: Here allegations that the passage of a local law was influenced by bias on the part of the chairperson of the planning board raised a question of fact precluding summary judgment finding the local law valid.​

 

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WITHOUT AN AGREEMENT ON THE RECORD, A FAMILY COURT JUDGE CANNOT ORDER RESTITUTION IN A JUVENILE DELINQUENCY PROCEEDING FOR ITEMS NOT RECITED IN THE PETITION (THIRD DEPT).

The Third Department, reversing Family Court in this juvenile delinquency proceeding, determined there was nothing in he record demonstrating respondent (juvenile) accepted an admission in exchange for restitution on all charges. The order of restitution was reversed:

Family Court may order a person who has been adjudicated a juvenile delinquent to make “restitution in an amount representing a fair and reasonable cost to replace the property [or] repair the damage caused by” him or her (Family Ct Act § 353.6 [1] [a]). In doing so, Family Court has “broad discretion” in determining the proper disposition in a juvenile delinquency proceeding … , but, as a court of limited jurisdiction, remains constrained to exercise the powers granted to it by statute … . Unlike the Penal Law, which permits restitution for damage to property that was not alleged in the charging document but still “part of the same criminal transaction” (Penal Law § 60.27 [4] [a]), there is “no parallel provision in Family Court Act § 353.6,” thus restitution is generally limited to those items recited in the petition … . To this further point, “a juvenile may be required to pay restitution for a charge to which he or she did not admit only where there is a recorded agreement to accept an admission in exchange for restitution” … . Matter of Juan Z. (Juan Z.), 2025 NY Slip Op 03674, Third Dept 6-18-25

Practice Point: Unlike under the Penal Law, the ability of a Family Court judge under the Family Court Act to order restitution in a juvenile delinquency proceeding is limited to the items recited in the petition and/or in an agreement on the record.

 

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SUPREME COURT HAS SUBJECT MATTER JURISDICTION OVER THIS PROCEEDING UNDER CPLR ARTICLE 52 TO ENFORCE A MONEY JUDGMENT AGAINST THE STATE INSURANCE FUND TO THE EXTENT THE STATE IS A GARNISHEE (SECOND DEPT)

The Second Department, in a full-fledged opinion by Justice Dillon, determined Supreme Court had subject matter jurisdiction over this CPLR article 52 action to enforce a money judgment against New York State Insurance Fund. Ordinarily an action for money damages against a state agency is litigated in the Court of Claims:

In this proceeding, the State Insurance Fund is postured not as a judgment debtor but as a garnishee. As such, under CPLR 5207, all procedures for the enforcement of money judgments against other judgment debtors are applicable to it, as a garnishee, “except where otherwise prescribed by law” and except that an order “shall only provide for the payment of moneys not claimed by the [S]tate” and that no judgment may be entered against the State in such a procedure.

The State Insurance Fund has not shown that this proceeding is otherwise prescribed by law. To the contrary, CPLR 5221(a)(4) provides that the Supreme Court or a County Court has authority to hear enforcement proceedings “authorized by this article,” meaning the entirety of CPLR article 52, which, of course, includes CPLR 5207 garnishment proceedings against the State. … The petition seeks entry of an order, not a judgment. Thus, contrary to the State Insurance Fund’s contention, we hold that the Supreme Court possessed subject matter jurisdiction over this proceeding pursuant to CPLR article 52 to enforce a money judgment as against the State Insurance Fund to the extent that the State’s role in this instance is that of a garnishee. Matter of Doran Constr. Corp. v New York State Ins. Fund, 2025 NY Slip Op 03716, Second Dept 6-18-25

Practice Point: Here, under very complicated facts, Supreme Court was deemed to have subject matter jurisdiction over an action to enforce a money judgment against a state agency where the state’s role is that of a garnishee.

 

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THE HOUSING STABILITY AND TENANT PROTECTION ACT (HSTPA), BY ITS TERMS, APPLIES TO THIS HOLDOVER ACTION WHICH WAS PENDING WHEN THE HSTPA WAS ENACTED BUT HAS NOT PROCEEDED TO JUDGMENT; THEREFORE THE ACT NEED NOT BE APPLIED RETROACTIVELY TO PRECLUDE THE HOLDOVER ACTION (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ford, reversing the Appellate Term, determined the Housing Stability and Tenant Protection Act (HSTPA), which was enacted after the landlord brought the holdover proceedings but before judgment, applied to preclude the holdover action. The First Department did not need to determine whether the HSTPA applied retroactively. Under the terms of the statute, the Act applies to actions which were pending when it was enacted:

As of the date of the enactment of HSTPA, the petitioner had not yet obtained judgments of possession of the respondents’ respective apartments. The application of the subject provision of HSTPA, under these circumstances, does not expand the scope of the petitioner’s liability based on prior conduct, nor impair other rights the petitioner possessed in the past …  When HSTPA was enacted, the petitioner had no vested right to recover any units in the building for personal use … . Thus, application of HSTPA here has no potentially problematic retroactive effect … .

HSTPA unequivocally states that the subject amendments to the Rent Stabilization Law of 1969 applied to matters pending as of the date of HSTPA’s enactment … . As there is no potentially problematic retroactive effect to the amended provision in this matter, and it is undisputed that the petitioner is not entitled to the relief sought pursuant to the amended provision, the respondents were entitled to dismissal of the respective petitions pursuant to CPLR 3211(a)(7) … . Matter of Karpen v Andrade, 2025 NY Slip Op 03719, Second Dept 6-18-25

Practice Point: Where there has not been a judgment in a holdover action which was pending whin the HSTPA was enacted, there is no need to determine whether the Act should be applied retroactively. The Act, by its terms, applied to the pending action.

 

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HERE THE HOSPITAL DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT ON THE DISABILITY DISCRIMINATION CAUSE OF ACTION UNDER THE NEW YORK CITY HUMAN RIGHTS LAW (NYCHRL) BUT WERE ENTITLED TO SUMMARY JUDGMENT ON THE DISABILITY DISCRIMINATION CAUSE OF ACTION UNDER THE NEW YORK STATE HUMAN RIGHTS LAW (NYSHRL) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the defendant hospital was not entitled to summary judgment in this disability discrimination case under the New York City Human Rights Law (NYCHRL) but was entitled to summary judgment under the New York State Human Rights Law (NYSHRL):

In order to prevail on a claim of disability discrimination under the NYCHRL, “an employer must demonstrate that it engage[d] in a good faith interactive process that assesse[d] the needs of the disabled individual and the reasonableness of the accommodation requested” … . Here, the hospital defendants failed to show that they engaged in an interactive process and reasonable accommodation analysis prior to terminating the plaintiff’s employment … .

However, the Supreme Court should have granted those branches of the hospital defendants’ motion which were for summary judgment dismissing the causes of action alleging disability discrimination under the NYSHRL insofar as asserted against them. “To establish a prima facie case of disability discrimination under the Executive Law, a plaintiff must establish, inter alia, that he or she was otherwise qualified to perform the essential functions of the position, with or without a reasonable accommodation” … . Here, the hospital defendants established, prima facie, that the plaintiff could not perform the essential functions of her job with or without a reasonable accommodation … . In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff’s contention, under the NYSHRL, the hospital defendants cannot be held liable for failing to engage in an interactive process where the employee has failed to provide evidence to the employer that he or she could perform the essential functions of the job with or without a reasonable accommodation … . Makharadze v Ognibene, 2025 NY Slip Op 03713, Second Dept 6-18-25

Practice Point: Consult this decision for an example of a disability discrimination case where the defendants were entitled to summary judgment under the New York State Human Rights Law but not under the New York City Human Rights Law.

 

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THE DEFENDANT DID NOT SUBMIT ACTUAL MEASUREMENTS OF THE DEFECT WHICH CAUSED PLAINTIFF’S FALL; THE PHOTOGRAPHS AND THE TESTIMONY THAT THE DEFECT WAS ONE-INCH IN HEIGHT WAS NOT ENOUGH TO PROVE THE DEFECT WAS TRIVIAL AS A MATTER OF LAW; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the defendant did not demonstrate the defect which cause plaintiff’s fall was trivial as a matter of law. Plaintiff tripped over the raised edge of a cellar door in a sidewalk:

Defendant Teng Dragon, as the party seeking dismissal of the complaint on the basis that the alleged defect is trivial, “must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses” … . While it is true that “there is no ‘minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable” … , producing measurements of the defect together with evidence of the surrounding circumstances is required for a prima facie showing that the defect was trivial as a matter of law … . Photographs produced by the plaintiff appear to show a non-trivial defect in the raised cellar door, and the testimony of defendant Mazal Ubracha 101 LLC’s principal indicates a surface differential between the sidewalk and cellar door of approximately one inch. The Court of Appeals has made it clear that summary judgment should not be granted in a case in which “the dimensions of the alleged defect are unknown and the photographs and descriptions inconclusive” … . Teng Dragon has not provided the actual measurements of the defect here, and thus, making every favorable inference in favor of the nonmovant plaintiff, has failed to establish its prima facie entitlement to summary judgment … . Weatherspoon v Mazal Ubracha 101 LLC, 2025 NY Slip Op 03662, First Dept 6-17-25

Practice Point: Here the defendant did not submit actual measurements of the defect over which plaintiff slipped and fell. Despite photographs of the defect and testimony it was one-inch in height, defendant did not prove the defect was trivial as a matter of law.

 

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“MAKING A TERRORISTIC THREAT” IS A BAILABLE FELONY (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Hallligan, over a three-judge dissent, determined “making a terroristic threat” is a bailable felony:

Michael Cavagnolo was arrested and charged with making a terroristic threat after he repeatedly called the Hyde Park Police Department emergency line threatening to commit violent acts against officers, their families, and Police Department property. County Court fixed bail pursuant to CPL 510.10 (4) (a). That paragraph makes bailable all violent felony offenses listed in Penal Law § 70.02, with two specific exceptions. One of the offenses listed in Penal Law § 70.02 is the crime of making a terroristic threat (see Penal Law § 70.02 [1] [c]). Paragraph (g) of CPL 510.10 (4), however, makes bailable the felony crimes of terrorism defined in Penal Law article 490 but expressly excludes the crime of making a terroristic threat.

Although these two paragraphs are difficult to reconcile, the text and disjunctive structure of CPL 510.10 (4) indicate that paragraph (g) was not intended to narrow the independent authorization provided in paragraph (a) to set monetary bail for all violent felony offenses listed therein. We therefore hold that making a terroristic threat is a bail-eligible offense. Accordingly, we reverse. People ex rel. Ellis v Imperati, 2025 NY Slip Op 03646, CtApp 6-17-25

Practice Point: Despite seemingly conflicting statutory provisions, “making a terroristic threat” was deemed a bailable felony by the Court of Appeals.

 

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