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THERE WAS NO EVIDENCE SUBSTANTIATING THE PURPORTED “OFF THE RECORD” STIPULATION OF SETTLEMENT; THE TERMS OF THE SETTLEMENT AGREEMENT WERE NEVER FILED WITH THE COUNTY CLERK; A PRETRIAL CONFERENCE WITH THE JUDGE’S CLERK DOES NOT MEET THE “OPEN COURT” REQUIREMENT FOR A STIPULATION OF SETTLEMENT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the purported stipulation of settlement of this legal malpractice action did not meet the requisite criteria and could not be enforced:

It is well settled that ” ‘[a]n oral stipulation of settlement that is made in open court and stenographically recorded is enforceable as a contract and is governed by general contract principles for its interpretation and effect’ ” (… see generally CPLR 2104). Here, however, in support of her cross-motion, plaintiff failed to attach any transcripts or other evidence substantiating the purported settlement agreement. Indeed, we conclude that “[t]he record provides no basis for concluding that an enforceable stipulation was entered into between the parties” inasmuch as “[p]ertinent discussions took place off the record” … . Plaintiff also failed to establish that the terms of the settlement agreement were ever filed with the county clerk (see CPLR 2104 …).

Even if plaintiff had submitted written evidence of the parties’ purported stipulation of settlement, we conclude that said stipulation was not entered in “open court” inasmuch as there is no dispute that the alleged settlement was reached during a pretrial conference with the court’s law clerk … . Indeed, the “open court requirement . . . is not satisfied in locations without a Justice presiding . . . , and it is not satisfied during less formal stages of litigation, such as a pretrial conference” … . Guzman-Martinez v Rosado, 2025 NY Slip Op 01483, Fourth Dept 3-14-25

Practice Point: Consult this decision for the criteria for an enforceable stipulation of settlement, i.e., a transcript or other evidence of the terms of any oral agreement, the filing of the terms of the agreement with the county clerk, and the entering of the agreement in open court with a judge presiding.

 

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THE OFFICER’S TESTIMONY HE COULD NOT SEE INSIDE THE CAR FROM A DISTANCE OF 10 TO 15 FEET PROVIDED PROBABLE CAUSE TO STOP THE CAR FOR A “TINTED WINDOWS” VIOLATION; THE DISSENT ARGUED IT WAS DARK AT THE TIME OF THE STOP AND THE OFFICER DID NOT LINK HIS INABILITY TO SEE INSIDE THE CAR TO THE TINTED WINDOWS AS OPPOSED TO THE AMBIENT DARKNESS (FOURTH DEPT). ​

The Fourth Department, affirming County Court, over a dissent, determined the officer’s testimony he could not see the driver’s face from a distance of 10 to 15 feet demonstrated probable cause of a “tinted window” violation which supported the vehicle stop. The dissent argued the officer’s testimony was insufficient to demonstrate probable cause because it was dark at the time of the stop and the officer did not link his inability to see inside the car to the tinted windows, as opposed to the ambient darkness:

Here, the officer who initiated the stop testified at the suppression hearing that he looked directly at the driver’s side window of the vehicle defendant was operating, that he did so from a distance of no more than 10 to 15 feet, and that he was “unable to see the driver of the vehicle” through the window. We conclude that the officer’s testimony contained sufficient facts to establish that he reasonably believed that the windows were excessively tinted in violation of Vehicle and Traffic Law § 375 (12-a) (b) (2) … .

From the dissent:

The officer who attempted to initiate the stop of defendant’s vehicle testified that he believed any level of tint on the front driver’s side window or the front passenger window would be illegal and that the actual tint on the vehicle’s windows was never tested with a tint meter. He further testified that he initially observed the vehicle when it was dark outside and that he was unable to see the driver inside the vehicle. At no point did the officer testify that it was the window tint, as opposed to the ambient darkness, that prevented him from seeing the driver. The officer’s failure to link the allegedly excessive tint with his inability to see into the vehicle distinguishes this case from those cited by the majority, in which the arresting officer “testified at the suppression hearing that he could tell the window tints were too dark because he could not see into the [vehicle]” … or “specifically testified that the driver’s side windows were ‘so dark that [he] was unable to actually see the operator of the vehicle as the vehicle was going by’ ” … . Because the officer’s testimony here failed to link his conclusory belief that the windows were excessively tinted with an objective fact in support of that belief, I conclude that the People failed to meet their burden … . People v Hall, 2025 NY Slip Op 01457, Fourth Dept 3-14-25

Practice Point: Consult this decision for some insight into the proof required for a valid “tinted-windows-violation” traffic stop.

 

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HERE THE PLAINTIFF WAS IN PRIVITY WITH A NONPARTY WHICH WAS DEEMED TO HAVE HAD A “VICARIOUS DAY IN COURT” SUCH THAT THE DOCTRINE OF RES JUDICATA PRECLUDED PLAINTIFF’S ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-ledged opinion by Justice Scarpulla, determined the doctrine of res judicata required dismissal of plaintiff’s fraudulent conveyance cause of action. The lawsuit concerned disputed ownership of precious gems. The opinion is fact-specific and too complex to fairly summarize here. With respect to the application of the res judicata doctrine, the court wrote:

This appeal stems from a dispute between precious gemstone traders. Plaintiff Shanghai Pearls & Gems, Inc. … alleges that defendants … improperly transferred gems they received on consignment from nonparty Diamond Corporation Capital Group, LLC (D&M). The transferred gems included the “Pink Diamond,” in which plaintiff held a one-third interest, and the “Kashmir Sapphire.” * * *

Although defendants’ settlement with D&M did not release plaintiff’s original one-third interest in the Pink Diamond, plaintiff’s fraudulent conveyance claims based on that interest should be dismissed because the claims are barred by res judicata. Pursuant to the doctrine of res judicata, a valid final judgment precludes “future actions between the same parties or those in privity with them on any claims arising out of the same transaction or series of transactions . . . , even if based upon different theories or if seeking a different remedy” … .

A determination that privity exists, in the context of res judicata, must be based on a “flexible analysis” of the relationship between the party and the nonparty in the previous litigation … . This analysis, in turn, requires courts to consider “whether the circumstances of the actual relationship, the mutuality of interests, and the manner in which the nonparty’s interest were represented in the earlier litigation established a functional representation such that the nonparty may be thought to have had a vicarious day in court” … .

Here, plaintiff was in privity with D&M vis-À-vis the assignment of the interests in the Pink Diamond and Kashmir Sapphire. D&M’s claims against defendants in the bankruptcy proceeding and plaintiff’s claims against defendants in this action “are closely related in time, space, motivation, or origin” such that the claims “arise out of the same transaction, and res judicata should apply” … . Shanghai Pearls & Gems, Inc. v Paul, 2025 NY Slip Op 01433, First Dept 3-13-25

Practice Point: Although this opinion is complicated and fact-specific, it provides useful insight into the flexibility of the “privity” element of the res judicata doctrine. Here the nonparty with which plaintiff was in privity was deemed to have had a “vicarious day in court” triggering the application of the res judicata doctrine to the plaintiff’s action.

 

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THE WORKERS’ COMPENSATION BOARD’S CONCLUSION THAT CLAIMANT DID NOT PARTICIPATE IN THE WORLD TRADE CENTER RESCUE AND CLEANUP OPERATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the Board’s conclusion that claimant did not participate in the rescue, recovery and cleanup operations at the World Trade Center (WTC) was not supported by the evidence:

… [C]laimant testified that, during her October 2001 and December 2001 assignments, she was assigned to the NYPD’s command center for the rescue, recovery and cleanup operations. The command center was located 600 feet from the WTC site and there were areas set up at the command center for claimant and others to provide mental health support to police and fire department personnel working on the rescue, recovery and cleanup operations at the site. According to claimant, she would respond to calls concerning distressed workers and those individuals would be brought to the command center or claimant would go the rubble pile where they were working. Claimant would do an assessment as to the extent of the individual’s mental health condition and determine whether the individual could continue working or be taken off line and provided mental health treatment through the NYPD employee assistance program. McArdle [NYPD on-site coordinator] testified that he remembered claimant being at the command center and providing support to those working in the rescue, recovery and cleanup operation and that she was “well received” by the NYPD. McArdle further testified that identifying those individuals who needed to be taken off line for treatment was instrumental in continuing the operation and that many of those individuals were able to return to the operation after treatment. Matter of Goss v WTC Volunteer, 2025 NY Slip Op 01413, Third Dept 3-13-25

 

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THE TREBLE DAMAGES PROVISION IN RPAPL 861 FOR THE IMPROPER TRIMMING OR REMOVAL OF TREES FROM ANOTHER’S PROPERTY IS PUNITIVE IN NATURE; HERE THE TOWN TRIMMED AND REMOVED TREES FROM PLAINTIFF’S LAND; BECAUSE A MUNICIPALITY CANNOT BE ASSESSED PUNITIVE DAMAGES, THE TREBLE DAMAGES AWARD WAS REVERSED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the treble damages provision in RPAPL 861 is punitive in nature and therefore cannot be imposed upon a municipality. Here the town removed and trimmed trees along a roadway. Plaintiff, the owner of the land abutting the road, sued and was awarded treble damages. The Appellate Division had concluded the treble damages provision was compensatory, not punitive:

RPAPL 861 provides that “[i]f any person, without the consent of the owner thereof, cuts, removes, injures or destroys . . . tree[s] or timber on the land of another . . . an action may be maintained against such person for treble the stumpage value of the tree or timber or two hundred fifty dollars per tree, or both and for any permanent and substantial damage caused to the land or the improvements thereon . . . .” … .

* * * Treble damages are the default measure for any recovery, but the statute also provides that “if the defendant establishes by clear and convincing evidence, that when the defendant committed the violation, he or she had cause to believe the land was his or her own, or that he or she had an easement or right of way across such land which permitted such action, or he or she had a legal right to harvest such land, then he or she shall be liable for the stumpage value or two hundred fifty dollars per tree, or both . . . .” …

In other words, the defendant’s good faith “does not insulate that person from the imposition of statutory damages, but merely saves him or her from having to pay the plaintiff treble damages” .. . * * *

The “good faith” provision in RPAPL 861 demonstrates the punitive nature of the treble damages available under the statute. Matter of Rosbaugh v Town of Lodi, 2025 NY Slip Op 01406, CtApp 3-13-25

Practice Point: Here the statute allowed treble damages for the removal of trees only if the removal was not in good faith. Therefore the treble damages provision was punitive in nature. Punitive damages cannot be assessed against a municipality, here the town which removed the trees.​

 

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IN THE CONTEXT OF DRIVING WITH A SUSPENDED LICENSE, THE COURT OF APPEALS EXPLAINED THE CRITERIA FOR A VALID MISDEMEANOR COMPLAINT, VERSUS A MISDEMEANOR INFORMATION (CT APP). ​

The Court of Appeals, affirming the convictions by guilty pleas to misdemeanor complaints, in a full-fledged opinion by Judge Troutman, determined the factual allegations in the complaints were sufficient. The defendants were charged with driving with a suspended license and argued the complaints did not demonstrate reasonable cause to believe they knew they their licenses had been suspended:

The misdemeanor complaints here satisfy the reasonable cause standard. The complaints “state[d] the time, date and location of the[ ] events,” and otherwise “provide[d] [defendants] with enough information” of how defendants committed the crime “to put [them] on notice of the crime” and “to prevent defendant[s] from facing double jeopardy on the same charges” … . Defendants knew from the complaints what they were accused of doing and where, when, and how they allegedly did it. Based on the complaints’ allegations, defendants could assess what defenses were available to them, such as contending that they never knew their licenses were suspended, that they were never served with a summons, or that the summonses didn’t warn them that their licenses would be suspended if they failed to respond.

… [D]efendants contend that the complaints failed to provide reasonable cause because they did not specifically allege that defendants personally received the summonses. * * * … [T]he numerous summonses issued to each defendant are sufficient to convince a person of ordinary intelligence, judgment, and experience that it is reasonably likely defendants received at least one of them. …

… [D]efendants’ consent to prosecution by misdemeanor complaint relieved the People of their obligation under a misdemeanor information to proffer “[n]on-hearsay allegations establishing every element of each charge” … . Although that obligation—known as “the prima facie case requirement”—applies to an information, “[a] misdemeanor complaint, in comparison, need only set forth facts that establish reasonable cause to believe that the defendant committed the charged offense” … .

Nor were the complaints deficient simply because they did not explain how the officers knew about suspension warnings appearing on traffic summonses or about those suspensions occurring automatically (by computer) within four weeks of a defendant’s failure to answer those summonses. We do not require complaints to contain such “formulaic recitation” … . Moreover, at this stage, the officers’ statements about summonses “appear[] reliable” … , inasmuch as the law tasks officers with delivering traffic summonses to alleged violators … . People v Willis, 2025 NY Slip Op 01405. CtApp 3-13-25

Practice Point: Consult this decision for an explanation of the criteria for a valid misdemeanor complaint, versus a misdemeanor information.

 

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IN REINSTATING THE ACTION AFTER VACATING THE ORDER GRANTING SUMMARY JUDGMENT TO DEFENDANTS’, THE SECOND DEPARTMENT EXPLAINED WHAT SHOULD BE ALLEGED IN A COMPLAINT FOR LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion to vacate the order granting defendants’ motion for summary judgment in this Labor Law 240(1), 241(6) and 200 action should have been granted. Plaintiff fell through the roof of the building he was working on. Apparently plaintiff failed to answer the summary judgment motion because of law office failure. In reinstating the action, the Second Department noted that the causes of action had been adequately pled as follows:​

“‘Labor Law § 240(1) imposes a nondelegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks'” … . “‘To impose liability pursuant to Labor Law § 240(1), there must be a violation of the statute and that violation must be a proximate cause of the plaintiff’s injuries'” … . Here, the plaintiff alleged that his fall through the roof was the result of an elevation-related hazard caused by the failure to keep necessary safety devices in place and identified the defendants as the owners of the premises. …

“‘Labor Law § 241(6) imposes on owners and contractors a nondelegable duty to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed'” … . “‘To establish liability under Labor Law § 241(6), a plaintiff or a claimant must demonstrate that his [or her] injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case'” … . Here, the plaintiff alleged that he was employed in an area where construction was being performed and that his injuries were proximately caused by the failure to comply with applicable statutes, ordinances, rules, and regulations. ….

“‘Labor Law § 200 essentially codifies landowners’ and general contractors’ common-law duty to maintain a safe workplace'” … . “‘Where a plaintiff’s claims implicate the means and methods of the work, an owner or contractor will not be held liable under Labor Law § 200 unless it had the authority to supervise or control the performance of the work'” … . Here, the plaintiff alleged that the defendants failed to provide a safe place to work and that the defendants controlled and supervised the work at issue. Bayron Chay Mo v Ultra Dimension Place, LLC, 2025 NY Slip Op 01338, Second Dept 3-12-25

Practice Point: Consult this decision for a clear explanation of what should be alleged in the complaint for Labor Law 240(1), 241(6) and 200 causes of action.

 

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PLAINTIFF INSURER DENIED FOUR CLAIMS FOR NO-FAULT INSURANCE BENEFITS ASSOCIATED WITH FOUR DISTINCT CHIROPRACTIC TREATMENTS PROVIDED BY DEFENDANT TO A WOMAN INJURED IN A TRAFFIC ACCIDENT; EACH OF THE FOUR CLAIMS WAS FOR AN AMOUNT BELOW $5000; AN ARBITRATOR AWARDED THE CLAIMED BENEFITS TO THE DEFENDANT; PLAINTIFF THEN SOUGHT DE NOVO REVIEW OF THE ARBITRAL AWARDS WHICH HAS A $5000 THRESHOLD; THE FOUR DISTINCT ARBITRAL AWARDS CANNOT BE COMBINED TO MEET THE $5000 THRESHOLD (SECOND DEPT). ​

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Duffy, determined the complaint in this no-fault insurance-benefit action should have been dismissed for lack of subject matter jurisdiction:

The issue on appeal, an issue of first impression for this Court, is whether, under certain circumstances, separate and distinct arbitral awards can be treated by a court as, in effect, a single arbitral award under Insurance Law § 5106(c) and pursuant to 11 NYCRR 65-4.10(h)(1)(ii) for the purposes of determining whether the requisite $5,000 threshold establishing subject matter jurisdiction has been met to allow for a de novo review of claims for no-fault insurance benefits…. [W]e hold that the plain language of Insurance Law § 5106(c) and 11 NYCRR 65-4.10(h)(1) does not contemplate allowing separate and distinct arbitral awards to be treated as, in effect, a single arbitral award or to be combined by a court for the purposes of meeting the required monetary jurisdictional threshold under Insurance Law § 5106(c) and 11 NYCRR 65-4.10(h)(1)(ii). …

… [P]laintiff American Transit Insurance Company commenced this action pursuant to Insurance Law § 5106(c) and 11 NYCRR 65-4.10(h)(1)(ii) to seek de novo review of four separate arbitral awards issued by a master arbitrator (hereinafter the arbitral awards). The four arbitral awards were issued by the same master arbitrator, following separate arbitration proceedings upon the plaintiff’s denial of payment for medical services performed by the defendant for Nancy Bayona, an individual who alleged that she was injured as a result of a motor vehicle accident in February 2019 when she was riding as a passenger in a taxi insured by the plaintiff. The arbitration proceedings arose upon the plaintiff’s denial of each of four claims submitted to it by the defendant for a repeated course of chiropractic treatment of Bayona performed by the defendant between March 8 and September 4, 2019. After each of the four arbitration proceedings, the master arbitrator issued an arbitral award in favor of the defendant, respectively, as follows: $4,767.63 for chiropractic services performed in March 2019; $4,767.63 for chiropractic services performed in March 2019 and April 2019; $4,767.63 for chiropractic services performed in April 2019 and May 2019; and $3,178.42 for chiropractic services performed in August 2019. … [P]laintiff commenced this action seeking de novo review of the four arbitral awards. American Tr. Ins. Co. v Comfort Choice Chiropractic, P.C., 2025 NY Slip Op 01337, Second Dept 3-12-25

Practice Point: De novo review of an arbitral award of no-fault benefits has a threshold of $5000. Here there were four claims for no-fault benefits for four distinct chiropractic treatments provided to a woman injured in a traffic accident. Each of the four claims was for an amount below $5000. The Second Department held the $5000 threshold for de novo review could not be met by combining the four distinct arbitral awards.

 

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WHERE A DEFENDANT IS AN “ELIGIBLE YOUTH,” THE SENTENCING COURT MUST CONSIDER YOUTHFUL OFFENDER TREATMENT; IF THE RECORD IS SILENT ON THE ISSUE, THE SENTENCE WILL BE VACATED AND THE MATTER REMITTED (SECOND DEPT).

The Second Department, vacating defendant’s sentence and remitting the matter, determined defendant was an “eligible youth” but the record was silent about whether the court considered youthful offender treatment:

“Criminal Procedure Law § 720.20(1) requires a court to make a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forego it as part of a plea bargain” … . “Where a defendant is an eligible youth, the determination of whether to afford him or her youthful offender treatment must be explicitly made on the record” … . Here, even though the defendant was an eligible youth, the record does not demonstrate that the Supreme Court made such a determination. Accordingly, the defendant’s sentence must be vacated and the matter remitted to the Supreme Court, Queens County, for resentencing after a determination as to whether the defendant should be afforded youthful offender treatment … . People v Suckoo, 2025 NY Slip Op 01396, Second Dept 3-12-25

Practice Point: If the record does not reflect that the court considered youthful offender treatment for an “eligible youth,” the sentence will be vacated.​

 

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A DEFENDANT’S RIGHT TO BE PERSONALLY PRESENT FOR SENTENCING EXTENDS TO RESENTENCING AND TO THE AMENDMENT OF A SENTENCE (SECOND DEPT). ​

The Second Department, reversing Supreme Court and remitting the matter, determined defendant had a right to be present at his resentencing:

The defendant was not present at the resentencing proceeding in June 2023 because he was incarcerated in Florida. The Supreme Court nonetheless resentenced the defendant to the same sentence as had been previously imposed.

“A defendant has a fundamental right to be personally present at the time sentence is pronounced” … , which “extends to resentencing or to the amendment of a sentence” … . Although the defendant had already completed serving the incarceration portion of his sentence as of resentencing, the defendant had not completed the postrelease supervision component of his sentence, for which the Supreme Court could have resentenced the defendant to a minimum period of 3 years and a maximum period of 10 years (see Penal Law § 70.45[2-a][a]). The defendant was not present at the resentencing proceeding, and the record is devoid of any indication that he waived his right to be present … . People v Allen, 2025 NY Slip Op 01381, Second Dept 3-12-25

Practice Point: Absent a waiver, a defendant has the right to be personally presented at a resentencing.

 

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