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A NINETY-DAY NOTICE WHICH DOES NOT STATE THAT FAILURE TO COMPLY WILL RESULT IN DISMISSAL OF THE ACTION IS DEFECTIVE AND HAS NO EFFECT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the 90-day notice was defective because it did not state that failure to comply with the demand will result in dismissal of the action:

“CPLR 3216 permits a court to dismiss a complaint for want of prosecution only after the court or the defendant has served the plaintiff with a written notice demanding that the plaintiff resume prosecution of the action and serve and file a note of issue within 90 days after receipt of the demand, and stating that the failure to comply with the demand will serve as the basis for a motion to dismiss the action” … . “Since CPLR 3216 is a legislative creation and not part of a court’s inherent power, the failure to serve a written notice that conforms to the provisions of CPLR 3216 is the failure of a condition precedent to dismissal of the complaint” … .

Here, the two 90-day notices served by the defendant and an order issued by the court were all defective in that they did not state that the plaintiff’s failure to comply with the demands contained therein would serve as a basis for a motion to dismiss the complaint for failure to prosecute … . Accordingly, the Supreme Court should have denied the defendant’s motion pursuant to CPLR 3216 to dismiss the complaint. Terryn v Rubin, 2025 NY Slip Op 04741, Second Dept 8-20-25

Practice Point: A ninety-day demand which fails to state dismissal of the action will result from a failure to comply is defective and has no effect.

 

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THE DEFENDANT DID NOT HAVE STANDING TO MOVE TO SUPPRESS THE GUN FOUND UNDER HIS SEAT IN THE CAR; THE PEOPLE DID NOT RELY ON THE STATUTORY PRESUMPTION THAT THE OCCUPANTS OF A CAR POSSESS CONTRABAND IN THE CAR; RATHER THE PEOPLE RELIED ON THE TESTIMONY OF A POLICE OFFICER WHO SAW DEFENDANT PLACE AN OBJECT UNDER HIS SEAT; AFTER DEFENDANT GOT OUT OF THE CAR, THE BARREL OF THE GUN WAS IN PLAIN VIEW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to suppress a weapon seized from a car in which defendant was a passenger should not have been granted. Defendant, who had no possessory interest in the car, did not have standing to contest the search of the car. The People did not rely on the statutory presumption that the occupants of a car possess contraband in the car. Rather, the People relied on the testimony of an officer who saw the defendant put an object under his seat. The barrel of the seized gun was in plain view:

A vehicle passenger with no ownership or possessory interest in the vehicle does not have a legitimate expectation of privacy in its interior … . As a result, a passenger in a car who is not charged with possession of a weapon or drugs under a statutory presumption (see Penal Law § 265.15[3] …) has no standing to challenge the search of the vehicle once it has been lawfully stopped … . Here, the People did not rely on the statutory presumption of possession but instead relied on the direct observations of a police detective. Specifically, the police detective testified at the suppression hearing that, during the initial stop of the vehicle in which the defendant was a passenger, the detective observed the defendant reach between his legs and place something under his seat. After the defendant had been removed from the vehicle, the detective looked through the windshield and saw, underneath the front passenger seat in the area where he had seen the defendant place something, the front of the barrel of a gun in plain view. Because the People relied on that testimony rather than any statutory presumption to establish possession of the gun, the defendant did not have standing to challenge the search of the vehicle in which he was a passenger and had no ownership interest … . Moreover, the defendant does not challenge the legality of the vehicular stop, which, in any event, was found by the court to have been lawful—a determination that may not be reviewed on this appeal (see CPL 470.15[1] …). Accordingly, the defendant failed to establish his standing to challenge the search of the vehicle and the seizure of the gun … . People v Knight, 2025 NY Slip Op 04736, Second Deppt 8-20-25

Practice Point: A passenger in a car who has no ownership or possessory interest in the car does not have standing to contest the search of the car unless the People rely on the statutory presumption, i.e., the occupants of a car possess contraband in the car. Here the People relied on testimony from an officer who saw the defendant put an object on the floor of the car under his seat and the barrel of the gun was in plain view. The defendant had no ownership or possessory interest in the car. The People did not rely on the statutory presumption. So defendant did not have standing move to contest the search of the car.

 

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IN THIS DISPUTE BETWEEN PLAINTIFF BEER DISTRIBUTORS AND DEFENDANT BEER COMPANY, THE SECOND DEPARTMENT HELD THAT ALCOHOLIC BEVERAGE CONTROL ACT SECTION 55-C(4), WHICH PROHIBITS TERMINATION OF A DISTRIBUTION AGREEMENT WITHOUT GOOD CAUSE AND AN OPPORTUNITY TO CURE, APPLIES TO BOTH WRITTEN AND ORAL CONTRACTS; THE COURT WENT ON TO FIND THAT THE COMPLAINT, WHICH WAS BASED ON AN ORAL DISTRIBUTION AGREEMENT, DID NOT STATE A CAUSE OF ACTION FOR BREACH OF SECTION 55-C(4) (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Hom, in a matter of first impression, determined the “Alcoholic Beverage Control Act § 55-c(4) [hereinafter “the Act”], which prohibits the termination of agreements between brewers and beer wholesalers without good cause and an opportunity to cure, applies to non-written agreements.” Plaintiffs are beer distributors. Plaintiffs’ distribution contracts with defendant beer company (Yuengling) were oral. Defendant purported to terminate plaintiffs’ distribution contracts. In response to plaintiffs’ lawsuit alleging violation of the Act, defendants argued the Act does not apply to oral contracts. The Second Department held that the Act does apply to oral contracts, but determined the complaint did not state a cause of action for breach of the Act

:…[W]e conclude that the amended complaint in this action failed to state a cause of action alleging violations of Alcoholic Beverage Control Law § 55-c because the plaintiffs failed to plead the essential and material terms of their alleged distribution agreements. Oak Beverages, Inc. v D.G. Yuengling & Son, Inc., 2025 NY Slip Op 04730, Second Dept 8-20-25

Practice Point: Consult this decision for a statutory-interpretation analysis where the statute is ambiguous. The issue here was whether a statute, which required that any termination of a beer distribution agreement be for good cause with an opportunity to cure, applied to both written and oral contracts. The court resolved the ambiguity in favor of protecting oral as well as written agreements.

 

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PLAINITFF’S AGENTS WHO MAILED THE RPAPL 1304 NOTICE OF FORECLOSURE WERE NOT IDENTIFIED IN PLAINTIFF’S AFFIDAVIT OFFERED IN SUPPORT OF SUMMARY JUDGMENT IN THIS FORECLOSURE PROCEEDING; ALSO, THE AFFIDAVIT PROVIDED NO FOUNDATION FOR SUBMITTED DOCUMENTS FROM A THIRD-PARTY VENDOR; THEREFORE PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the affidavit submitted by the plaintiff in this foreclosure action to demonstrate the proper mailing of the RPAPL 1304 notice of foreclosure was deficient, requiring denial of plaintiff’s motion for summary judgment:

… [P]laintiff submitted an affidavit of Connie Melendez, an employee of the plaintiff. … Melendez’s affidavit failed to establish that notice was sent … in the manner required by RPAPL 1304. While Melendez averred that she had personal knowledge of the plaintiff’s standard office mailing procedures and described those purported procedures, she acknowledged that the mailings were carried out “by and through [the plaintiff’s] agents.” However, Melendez did not identify who those agents were or attest that she was familiar with their standard office mailing procedures. Thus, Melendez’s affidavit did not establish proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed … . Further, Melendez’s affidavit failed to address the nature of the plaintiff’s relationship with a certain third-party vendor and whether the third-party vendor’s records were incorporated into the plaintiff’s own records or routinely relied upon in the plaintiff’s business … . Thus, Melendez’s affidavit failed to lay a foundation for the admission of a transaction report generated by the third-party vendor … . Finally, “the tracking numbers on the copies of the . . . notices submitted by the plaintiff, standing alone, did not suffice to establish, prima facie, proper mailing under RPAPL 1304” … . Likewise, a “Proof of Filing Statement” from the New York State Banking Department pursuant to RPAPL 1306 failed to establish, prima facie, the plaintiff’s compliance with the requirements of RPAPL 1304 … . For the same reasons, the plaintiff failed to establish, prima facie, that a notice of default in accordance with sections 15 and 22 of the mortgage agreement was properly transmitted prior to the commencement of this action … . Nationstar Mtge., LLC v Ricks, 2025 NY Slip Op 04728, Second Dept 8-20-25

Practice Point: Agents who mailed the RPAPL 1304 notice were not identified in plaintiff’s affidavit and plaintiff’s relationship with a third party vendor was not demonstrated. Therefore the affidavit submitted by plaintiff in this foreclosure action did not prove proper mailing of the notice of foreclosure and did not demonstrate compliance with related provisions in the mortgage agreement.

 

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THE PETITION SEEKING REVIEW OF THE BOARD OF ELECTIONS’ DECISION TO PURCHASE NEW VOTING MACHINES WHICH OPERATE BY SCANNING A BAR CODE SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND PETITIONER, COMMON CAUSE NEW YORK, DID NOT DEMONSTRATE AN INJURY-IN-FACT; COMMON CAUSE ARGUED THE USE OF A BAR CODE WHICH IS SCANNED BY THE MACHINE WILL IMPEDE VERIFICATION OF THE VOTING BALLOTS; THERE WAS A TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined the petitioner, Common Cause New York, had standing to contest the State Board of Elections’ (the Board’s) approval of the use of a new voting machine on the ground the machine’s mechanism for counting votes (using a bar code) impeded the right to independently verify the voting ballots. The majority held the petitioner met the “injury-in-fact” requirement. The dissenters disagreed. Although the writ of mandamus to compel was not the proper mechanism because a discretionary, as opposed to a ministerial, act was at issue, the petition was converted to a writ of mandamus to review:

The Board … posits that petitioners cannot establish the existence of an injury that differs from the public at large. We do not believe that the facts of this case warrant “an overly restrictive analysis of [that] requirement” … . Indeed, that requirement is tempered by the principle “that standing is not to be denied simply because many people suffer the same injury,” as doing so would insulate the “most injurious and widespread Government actions” from scrutiny … . Within that context, petitioners have alleged a particularized harm flowing from the approval of the ExpressVote XL [voting machine] and, although it likely affects numerous high-propensity voters … , it is sufficiently “different in kind or degree from that of the public at large” to permit standing … . * * *

We may consider the modern view of a petitioner’s pleading requirements in a CPLR article 78 proceeding, which merely require that the petitioner ” ‘set forth his [or her] facts and his [or her] prayer for relief and such relief as is proper may be given to him [or her]’ ” … . Accordingly, “notwithstanding the nomenclature of [petitioners’] application,” … we find that their request can be readily construed as one for mandamus to review, which asks “whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” … . Matter of Common Cause N.Y. v Kosinski, 2025 NY Slip Op 04690, Third Dept 8-14-25

Practice Point: Here the petition brought in the form of a writ of mandamus to compel was deemed improper because the underlying act, the purchase of voting machines, is discretionary, not ministerial. But the court had the authority to consider the petition as a writ of mandamus to review, which was the appropriate mechanism.

 

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OVERRULING PRECEDENT, THE THIRD DEPARTMENT NOW ACCEPTS THE “CATALYST THEORY” WHICH, UNDER THE NYS EQUAL ACCESS TO JUSTICE ACT (EAJA), ALLOWS THE RECOVERY OF ATTORNEY’S FEES BY A PARTY WHO INSTIGATES LITIGATION AGAINST THE STATE AND THE STATE VOLUNTARILY GRANTS THE SOUGHT RELIEF WITHOUT FUTHER LITIGATION; THE “CATALYST THEORY” APPLIES ONLY WHERE THE PARTY “PREVAILS IN WHOLE,” NOT WHERE THE PARTY HAS ONLY “SUBSTANTIALLY PREVAILED” (THIRD DEPT).

The Third Department, reversing Supreme Court and overruling precedent, in a full-fledged opinion by Justice Aarons, determined petitioner was not precluded from an award of counsel fees because the agency petitioner sued, the Office of Temporary and Disability Housing (OTDA), voluntarily granted the relief petitioner sought without the need for further litigation. In so doing, the Third Department overruled Matter of Clarke v Annucci, 190 AD3d 1245, Third Dept 2021, which rejected the so-called catalyst theory and precluded recovery under the NYS Equal Access to Justice Act (EAJA) when the sued agency voluntarily grants the sought relief after litigation has been started: The “catalyst theory” is now accepted as valid in the Third Department where, as in this case, the party “prevails in whole,” but not where a party has only “substantially prevailed:”

The text of the state EAJA, the legislative record, our collective judicial experience and common sense all lead us to conclude that the Legislature could have rationally determined that parties who receive complete relief from the State after the commencement of litigation have prevailed “in whole” even if the State folds and gives it to them. * * *

… [W]e hold that a party prevails in whole when the party obtains all of the relief sought in a lawsuit against the State — including when that relief is granted voluntarily by the State after the action is commenced — and is thus a prevailing party under the state EAJA as a matter of law (see CPLR 8602 [f]). To the extent Clarke is to the contrary, it should no longer be followed. * * *

… [A]lthough we no longer read the state EAJA to require every prevailing party to obtain judicially sanctioned relief, we do not otherwise address a party “who prevails . . . in substantial part” (CPLR 8602 [f]). Petitioner’s case does not require us to resolve whether the catalyst theory applies where a party has substantially, but not wholly, prevailed. We continue to impose an additional requirement on a substantially prevailing party to show a win against the State on the merits of one or more “issues” in litigation, and a corresponding win by the State on the merits of one or more “separate issues” (CPLR 8602 [f] …). Therefore, a party claiming to have prevailed in substantial part must still demonstrate that relief was obtained on the merits in an outcome that changes the legal relationship between the party and the State — for example, a judgment on the merits or a settlement agreement. Matter of Markey v Tietz, 2025 NY Slip Op 04689, Third Dept 8-14-25

Practice Point: If a party starts litigation against the state and the state voluntarily grants the sought relief, the party is entitled to attorney’s fees under the NYS Equal Access to Justice Act (EAJA).

 

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THE MAJORITY, LAYING OUT ITS FACTUAL FINDINGS IN GREAT DETAIL, AFFIRMED FAMILY COURT’S MODIFICATION OF CUSTODY RULING ALLOWING MOTHER TO RELOCATE WITH THE CHILD; THE TWO-JUSTICE DISSENT ARGUED THE MAJORITY IGNORED SUBSTANTIAL EVIDENCE WHICH CONFLICTED WITH AND CONTRADICTIED ITS RULINGS, LAYING OUT THAT EVIDENCE IN GREAT DETAIL; ESSENTIALLY THE DISSENT ARGUED THAT THE CONFLICTING AND CONTRADICTORY EVIDENCE IGNORED BY THE MAJORITY DEMONSTRATES MOTHER DID NOT MEET HER BURDEN TO DEMONSTRATE RELOCATION WAS IN THE “BEST INTEREST OF THE CHILD” (FIRST DEPT).

The First Department, over a comprehensive two-justice dissent, affirmed Family Court’s modification of custody ruling allowing mother to relocate to Florida with the child. The dissenters argued the majority ignored evidence which conflicted with its findings, effectively finding relocation was in mother’s best interest, not the child’s. The dissent laid out, in detail, the evidence purportedly ignored by the majority and would have held mother did not meet her burden to prove relocation was in the best interest of the child:

From the dissent:

A parent’s request to relocate with the parties’ child has been described as one of “the knottiest and most disturbing problems that our courts are called upon to resolve” … . Foremost, a court’s role in resolving immensely personal family matters of this nature is to ensure that the final decision is in the best interest of the child and that its findings have a sound and substantial basis in the record, as that is the sine qua non of any credibility determination … . Therefore, the threshold issue here is not whether the Family Court’s credibility determinations should be disturbed as the majority posits. Rather, it is whether there is a substantial basis in the record to support the finding that granting the mother primary physical custody of the subject child and permission to relocate to Florida, served the child’s best interest … . In my opinion, the Family Court’s determination fails on both accounts, as the evidence clearly establishes that a predominant emphasis was placed on those facts and circumstances most likely to serve the mother’s best interest, rather than that of the child, thereby undermining the exact premise set forth in Matter of Tropea ([87 NY2d 727] at 740-741). As the mother has failed to establish that it would be in the child’s best interest to relocate to Florida under the factors set forth in Matter of Tropea …, I respectfully dissent. Matter of Jasmine M. v Albert M., 2025 NY Slip Op 04695, First Dept 8-14-25

Practice Point: In this decision and in Matter of Kaius A. v Abigail H., 2025 NY Slip Op 04692, First Dept 8-14-25, the First Department is addressing concerns with the credibility determinations made by Family Court judges, raising the question whether starkly contradictory but credible proof should be analyzed in the context of whether the party seeking the relief has met the burden of proof.

 

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THERE WAS NO EVIDENCE MOTHER WAS SERVED WITH THE ORDER OF PROTECTION PROHIBITING THE FATHER’S CONTACT WITH HER AND THE CHILDREN; THE PROOF IN THIS CHILD NEGLECT PROCEEDING AGAINST MOTHER DID NOT MATCH THE ALLEGATIONS IN THE PETITION; THE JUDGE EFFECTIVELY AMENDED THE PETITION BY IMPROPERLY CONFORMING THE PETITION TO SERIOUSLY CONFLICTING AND CONTRADICTORY PROOF; MOTHER WAS NEVER GIVEN THE OPPORTUNITY ADDRESS THE “AMENDED” PETITION; NEGLECT FINDING VACATED (FIRST DEPT).

The First Department, vacating the neglect finding against mother, in a full-fledged opinion by Justice Rosada, determined there was insufficient support in the record for the judge’s resolution of conflicting evidence, which amounted to an amendment of the petition to conform to the proof. Mother was never given the opportunity to address the judge’s sua sponte amendment of the petition, a violation of due process. In addition, there was no proof mother was served with an order of protection prohibiting father’s contact with the children (it was alleged mother left the children in father’s care when she was hospitalized). The facts of the case are too complex to fairly summarize here:

… ACS [Administration for Children’s Services] failed to adduce any proof of actual or imminent danger of physical, emotional, or mental impairment to the children in remaining in a home with the father and M.H. [paternal grandmother] during the mother’s brief hospitalization … . * * *

… Family Court unduly relied upon the contradictory testimony of Trazile [CPS worker] and M.H. in rendering its determination that respondent neglected the children. While credibility determinations of Family Court are normally accorded due deference … , the determination here “lacks a sound and substantial evidentiary basis,” and the court should have dismissed the petition (… see also Family Ct Act § 1051[c]). The court credited the testimonies of both Trazile and M.H., which together presented three markedly different and contradictory accounts of how the children came to be in M.H.’s care. Significantly, all three accounts are departures from the allegations set forth in the amended petition.

While the court is empowered sua sponte to conform the pleadings to the proof, as it arguably did here via its restatement of the allegations in its written decision, Family Ct Act § 1051(b) requires that in such cases, the respondent be given reasonable time to prepare to answer the amended allegations, which was not done here … . “Absent additional allegations set forth in an amended petition that conforms to the proof with notice to the respondent, the court must not base a finding of neglect on allegations not set forth in the petition” … . Matter of Kaius A. v Abigail H., 2025 NY Slip Op 04692, First Dept 8-14-25

Practice Point: If Family Court is confronted with internally inconsistent and contradictory proof which does not match the allegations in the neglect petition, the petition should be dismissed.

Practice Point: If mother is accused of violating an order of protection, there must be proof she was served with the order.

Practice Point: Although Family Court has the power to sua sponte conform a neglect petition to the proof by issuing findings of fact, due process requites that mother be given the opportunity to address the “new” allegations in the “amended” petition.

 

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HERE IN THIS MED MAL ACTION, THE COVID-RELATED IMMUNITY CODIFIED IN THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) WARRANTED SUMMARY JUDGMENT DISMISSING THE CAUSES OF ACTION STEMMING FROM THE TREATMENT OF PLAINTIFF BY DEFENDANT PHYSICIAN IN APRIL 2020, BUT NOT THE CAUSE OF ACTION STEMMING FROM THE TREATMENT OF PLAINTIFF BY DEFENDANT PHYSICIAN IN MARCH 2020, BEFORE HIS OFFICE WAS CLOSED PURSUANT TO THE COVID EMERGENCY DECLARATION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined (1) the repeal of the Emergency or Disaster Treatment Protection Act (EDTPA) does not apply retroactively, and (2), the EDTPA did not provide COVID-related immunity for defendants’ treatment of plaintiff in March, 2020, but did provide immunity for defendants’ treatment of plaintiff in April, 2020:

On March 16, 2020, the plaintiff sought treatment for nausea, constipation, and vomiting from the defendant Joseph Tromba and was examined at Tromba’s medical office at the defendant Long Island Gastroenterology, P.C. On March 23, 2020, the medical office was closed pursuant to the emergency declaration in New York State during the COVID-19 pandemic, but Tromba spoke to the plaintiff on the telephone on April 1, April 3, and April 6, 2020. On April 6, 2020, the plaintiff presented to a hospital and underwent emergency surgery for a bowel obstruction. * * *

“[T]he EDTPA  … provided … that a health care facility ‘shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services’ [if] the services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law, the act or omission was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives, and the services were arranged or provided in good faith” … .

… [T]he defendants’ submissions in support of their motion for summary judgment failed to establish … that the treatment of the plaintiff on March 16, 2020, was impacted by the defendants’ decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives.  * * *

[Defendants established] the three requirements for immunity were satisfied with respect to their treatment of the plaintiff on April 1, April 3, and April 6, 2020 … . Tromba testified at his deposition that from March 23, 2020, through May 2020, his office was closed pursuant to the emergency declaration and he was “dealing with” his patients “as well as [he could] without seeing them physically.” Regarding the plaintiff specifically, Tromba testified that he could not see her in his office due to the COVID-19 pandemic and her reticence to leave the house. He also testified that he wanted the plaintiff to go for an X-ray in order to see the quantity of stool in her bowel. However, due to the COVID-19 pandemic, the only place that the plaintiff could obtain an X-ray was an emergency room. The plaintiff testified at her deposition, among other things, that she did not want to go for an X-ray because she had COPD, her husband had emphysema, and it “was in the middle of COVID.” Although she also testified that she would have gone for an X-ray if she thought it would have helped her, she nevertheless testified that this “was when COVID was going on” and she “didn’t even know where [she] could get an X-ray at that point.” This testimony was sufficient to establish, prima facie, that the plaintiff’s treatment on April 1, April 3, and April 6, 2020, was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives … . Sapienza v Tromba, 2025 NY Slip Op 04672, Second Dept 8-13-25

Practice Point: Consult this decision for an example of how the COVID-related immunity codified in the Emergency or Disaster Treatment Protection Act (EDTPA) can be applied in a medical malpractice action.

 

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FATHER, WHO LIVED IN FLORIDA, BROUGHT THIS PARENTAL ACCESS PETITION; FATHER INDICATED HE COULD NOT AFFORD TO TRAVEL TO NEW YORK; HE APPEARED SEVERAL TIMES VIRTUALLY; HE DID NOT APPEAR AT THE LAST COURT DATE, BUT HIS ATTORNEY WAS PRESENT; THE JUDGE SHOULD NOT HAVE DISMISSED THE PETITION AS ABANDONED (SECOND DEPT).

The Second Department, reversing Family Court, determined that the dismissal of father’s parental access petition for failure to prosecute was not warranted. Father lived in Florida, had made appearances virtually, and, although he did not appear at the last court date, his attorney was present:

… [F]ather commenced this proceeding pursuant to Family Court Act article 6 for parental access with the child. The Family Court directed the parties to cooperate with a clinical assessment program in New York so as to aid the court in making a parental access determination. However, the father, who lived in Florida, alleged that he was financially unable to participate in the program and to travel to New York. He also informed the court that he was initially seeking to have only telephone contact with the child. Following several virtual appearances by the father, the court advised the father that he would no longer be permitted to appear virtually, citing the father’s disruptions during his prior virtual appearances. Thereafter, prior to the next scheduled court appearance, the father made “multiple” requests to be able to appear virtually but the court denied his requests. While the father was not present at the next scheduled court appearance, his attorney was present. … [T]he court dismissed the petition without prejudice for failure to prosecute. …

“[D]ismissal is a harsh remedy which ought not to be imposed without the utmost caution” … . A petition should not be dismissed for failure to prosecute where there is no indication of intentional default or willful abandonment … . Here, inasmuch as the father made several appearances in the proceeding virtually and appeared through counsel during the latest scheduled court appearance, the record does not reflect that the father willfully abandoned his parental access petition … . Matter of Lopez v Estrella, 2025 NY Slip Op 04649, Second Dept 8-13-25

Practice Point: Dismissal of a parental access petition for failure to prosecute is a harsh remedy which was not justified in this case. Father lived in Florida and appeared virtually. His requests to continue to appear virtually were denied. He was seeking only telephonic contact with the child. There was no indication of intentional default or willful abandonment of the petition.

 

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