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THE PROCESS SERVER DID NOT MAKE SUFFICIENT EFFORTS TO PERSONALLY DELIVER THE SUMMONS AND COMPLAINT BEFORE RESORTING TO NAIL AND MAIL SERVICE; COMPLAINT DISMISSED FOR LACK OF PERSONAL JURISDICTION OVER DEFENDANT (SECOND DEPT).

The Second Department determined the complaint should have been dismissed for lack of personal jurisdiction. The process server did not make sufficient efforts to personally deliver the summons and complaint before resorting to nail and mail service:

… [T]he plaintiff failed to demonstrate that the process server acted with due diligence before relying on affix and mail service pursuant to CPLR 308(4) … . The process server resorted to service pursuant to CPLR 308(4) after twice attempting personal service at the defendant’s residence and once attempting service where the process server stated the defendant’s residence could not be accessed due to an “impassable road.” Also, there was no evidence that the process server made any genuine inquiries about the defendant’s whereabouts and place of business … . Additionally, the process server’s attempts at personal delivery occurred on weekdays during hours when it reasonably could have been expected that the defendant was either working or in transit from work … . Sams Distribs., LLC v Friedman, 2025 NY Slip Op 01124, Second Dept 2-26-25

Practice Point: Consult this decision for some insight into when a court will find a process server’s efforts to personally deliver the summons and complaint insufficient, thereby rendering the nail and mail service invalid.

 

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IN AN EFFORT TO CONVINCE THE COURT TO GRANT THEIR REQUEST FOR A COMPETENCY HEARING BASED UPON DEFENDANT’S REJECTION OF A FAVORABLE PLEA OFFER, THE DEFENSE ATTORNEYS REVEALED CONFIDENTIAL COMMUNICATIONS WITH DEFENDANT ABOUT THE STRENGTH OF THE EVIDENCE; ALTHOUGH THE DEFENSE ATTORNEYS WERE ATTEMPTING TO HELP THE DEFENDANT, THE DEFENSE ATTORNEYS BECAME WITNESSES AGAINST THE DEFENDANT, DEPRIVING HIM OF HIS RIGHT TO COUNSEL (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defendant received ineffective assistance of counsel. Defendant was offered a plea deal which avoided incarceration for robbery and assault. When defendant rejected the offer, the defense attorneys requested a competency examination. In arguing for the competency examination, the defense attorneys described their efforts to convince defendant to accept the plea bargain, including a mock trial in the defense attorneys’ office finding defendant guilty. The Second Department determined the defense attorneys, by describing their confidential communications with defendant, which included the strength of the evidence, had become witnesses against the defendant:

… [T]he defendant’s right to counsel was adversely affected, and he received ineffective assistance of counsel when his attorneys revealed confidential communications on the record and, in effect, took a position adverse to him … . Contrary to the People’s contention, defense counsels did more than merely express concern that the defendant misunderstood the nature of the relevant issues … . Instead, defense counsels emphasized the strength of the evidence against their client, including revealing that a mock trial conducted in their office resulted in the defendant being found guilty … . These detailed statements, in effect, made defense counsels witnesses against their client, regardless of whether defense counsels allegedly made these statements in order to aid the application for an examination pursuant to CPL article 730 or in an attempt to persuade the defendant to accept what they viewed as a highly favorable plea offer. Although defense counsels had an obligation to advise the defendant regarding the plea offer … , the defendant retains the authority to accept or reject a plea offer, even having accepted the assistance of counsel … , and defense counsels must provide meaningful representation consistent with the defendant’s desire to proceed to trial … . People v Montgomery, 2025 NY Slip Op 01111, Second Dept 2-26-25

Practice Point: Here the defense was trying to help the defendant by requesting a competency hearing after he rejected a favorable plea offer. In arguing for the competency hearing, the defense revealed confidential discussions with the defendant about the strength of the evidence, thereby becoming witnesses against the defendant and depriving him of his right to counsel.​

 

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ALTHOUGH A COURT HAS THE DISCRETIONARY “INTERESTS OF JUSTICE” POWER TO VACATE ITS OWN ORDER, THAT POWER SHOULD ONLY BE EXERCISED IN UNIQUE OR UNUSUAL CIRCUMSTANCES NOT PRESENT HERE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court should not have vacated its own dismissal of the action in 2013 because (Wilmington) demonstrated none of criteria for vacation of a judgment or order described in CPLR 5015 (a);

“Under CPLR 5015(a), the court which rendered a judgment or order may relieve a party from it upon such terms as may be just, upon the ground of excusable default; newly discovered evidence; fraud, misrepresentation, or other misconduct of an adverse party; lack of jurisdiction to render the judgment or order; or reversal, modification, or vacatur of a prior judgment or order upon which it is based” … . “In addition to the specific grounds set forth in CPLR 5015(a), a court may, in its discretion, vacate its own judgment ‘for sufficient reason and in the interests of substantial justice'” … . “However, a court’s inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from judgments taken through fraud, mistake, inadvertence, surprise or excusable neglect” … . In other words, “[a] court should only exercise its discretionary authority to vacate a judgment in the interests of substantial justice where unique or unusual circumstances . . . warrant such action” … .

Here, the Supreme Court improvidently exercised its discretion in granting that branch of the Wilmington’s motion which was to vacate the 2013 dismissal order. Importantly, Wilmington did not adequately explain why it delayed nearly eight years before filing its motion … . Wells Fargo Bank, N.A. v Sulton, 2025 NY Slip Op 01128, Second Dept 2-26-25

Practice Point: CPLR 5015 (a) gives a court the discretionary power to vacate its own order “in the interests of substantial justice.” That power should only be exercised in unique or unusual circumstances, not present here.

 

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SUBSEQUENT COMPLAINTS WHICH REPEAT THE ALLEGATIONS IN THE INITIAL COMPLAINT ARE “SUPPLEMENTAL,” NOT “AMENDED,” COMPLAINTS; DEFENDANT NEED ONLY ANSWER THE INITIAL COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this foreclosure proceeding was not in default. The defendant answered the first complaint but did not answer two subsequent complaints which were designated “amended complaints,” Amended complaints require an answer, but “supplemental complaints” do not require an answer. Here the “amended complaints” merely repeated the allegations in the original complaint, making them “supplemental,” not “amended,” complaints:

“Generally, an amended complaint supersedes the original pleading, the defendant’s original answer has no effect, and a new responsive pleading is substituted for the original answer. In contrast, a supplemental complaint does not supersede the original pleading and the answer which had already been served at the time the supplemental pleading was interposed remains in effect” … . Here, insofar as asserted against the defendant, the purported amended complaints merely repeated the same allegations against the defendant that were made in the original complaint and, thus, are properly characterized as supplemental complaints … . As the defendant had already answered the allegations asserted, no further answer was required within the meaning of CPLR 3025(d). Thus, the defendant was not in default. U.S. Bank N.A. v Deblinger, 2025 NY Slip Op 01126, Second Dept 2-26-25

Practice Point: “Amended” complaints require a new answer, “supplemental” complaints do not. Here, although the subsequent complaints were designated “amended,” they in fact were “supplemental” because they merely repeated the allegations in the first complaint.

 

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AT THE SUPPRESSION HEARING THE OFFICER TESTIFIED THE SEARCH OF DEFENDANT’S PERSON AFTER A TRAFFIC STOP WAS BASED UPON THE ODOR OF MARIJUANA; THE OFFICER DID NOT TESTIFY HE WAS QUALIFIED BY TRAINING AND EXPERIENCE TO RECOGNIZE THE ODOR OF MARIJUANA; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the traffic stop was proper (inoperable brake light) but the search of defendant’s person, based on the odor of marijuana, was not:

… [T]he officer’s testimony was insufficient to establish that there was probable cause for the search of the defendant’s person. As the law existed in 2020, “the odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, [was alone] sufficient to constitute probable cause to search the vehicle and its occupants” … . Here, however, the officer did not testify that he had any training or experience in detecting the odor of marihuana … .

Accordingly, the Supreme Court should have granted that branch of the defendant’s omnibus motion which was to suppress physical evidence. People v McLeod, 2025 NY Slip Op 01108, Second Dept 2-26-25

Practice Point: Under the law as it was in 2020, the search of a person could be justified by the odor of marijuana, but only if the officer was qualified by training and experience to recognize the odor of marijuana. Here the officer did not testify he was qualified to recognize the odor of marihuana. Therefore, defendant’s motion to suppress should have been granted.

 

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WHETHER THE JUDGMENT DEBTOR IS ENTITLED TO RESTITUTION AFTER REVERSAL OF A RESTRAINING NOTICE AND WHETHER PLAINTIFF IS ENTITLED TO AN INSTALLMENT PAYMENT ORDER ARE DISCRETIONARY ISSUES TO BE DECIDED UPON REMAND; CRITERIA EXPLAINED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, reversing Supreme Court and remanding the matter, determined that whether the judgment debtor was entitled to restitution based on the reversal of a restraining notice and whether the plaintiff is entitled to an installment payment order were not decided by the reversal, but  rather were discretionary issues to be resolved on remand. The facts are too complex to fairly summarize here:

… CPLR 5015(d) provides that, “[w]here a judgment or order is set aside or vacated, the court may direct and enforce restitution in like manner and subject to the same conditions as where a judgment is reversed or modified on appeal.” … Thus, “CPLR 5015[d] empowers a court that has set aside a judgment or order to restore the parties to the position they were in prior to its rendition, consistent with the court’s general equitable powers” … . The essential inquiry for a court addressing a request for the equitable remedy of restitution is whether it is against equity and good conscious to permit a party to retain the money that is sought to be recovered … . The determination whether to award restitution is committed to the trial court’s discretion … . * * *

Contrary to defendant’s contention that an installment payment order cannot be directed at funds exempt from execution under CPLR 5231 (i.e., 90% of his monthly disability insurance payments), such an order is the expedient for accessing exempt income … . As Professor Siegel stated long ago, “[o]ne of [CPLR 5226’s] prime uses is in that situation . . . where it appears that the judgment debtor can afford more than the 10% to which the income execution is limited” … . Thus, “[t]he court on the [CPLR 5226] motion can direct the debtor to make regular payments to the judgment creditor in any sum it finds the debtor able to afford, not limited by the 10% that restricts the income execution of CPLR 5231” … . Hamway v Sutton, 2025 NY Slip Op 01062, First Dept 2-25-25

Practice Point: Although this opinion is fact-specific, it includes the criteria for some fundamental debtor-creditor issues, i.e., the amount of monthly disability insurance payments which is available to a judgment debtor, the income-sources which are available to a judgment debtor, whether a plaintiff is entitled to an installment payment order, the criteria for a court’s discretionary determination of the amount a judgment debtor can afford to pay every month, etc.

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DEFENDANT’S COMPLAINTS ABOUT THE ACTIONS OF DEFENSE COUNSEL WERE NOT SPECIFIC OR SERIOUS ENOUGH TO WARRANT AN INQUIRY BY THE JUDGE; THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a three-judge dissent, determined defendant had not made specific and serious allegations about the behavior of his attorney which were sufficient to warrant an inquiry by the judge:

… [D]efendant argues that the complaints contained in his letter were factually specific and serious enough to require a minimal inquiry. He points to his accusations that defense counsel was not working in his best interest; disregarded his request to visit, “even via [v]ideo”; hung up on him; disrespected him and his wife; was prolonging the proceedings; and told him to accept a plea even though he was “in fact innocent.” Contrary to defendant’s contention, these statements did not constitute “specific factual allegations of ‘serious complaints about counsel’ ” … . Defendant’s assertions that counsel was not working in his best interest, was prolonging the proceedings, and was advising him to take a plea were too general and conclusory to require a minimal inquiry. There are simply no facts elucidating these allegations that would have signaled to the trial court that a serious conflict emerged between defendant and his counsel.

… The seriousness of defendant’s allegation that counsel failed to visit him was undermined by other statements in the letter, which clearly indicated that counsel and his private investigator were communicating with defendant. Moreover, defendant failed to explain how defense counsel allegedly disrespected him and his wife. Nor did he provide any context regarding defense counsel allegedly hanging up on him. For instance, it is entirely unclear whether defense counsel intentionally or inadvertently hung up on defendant or whether defense counsel simply hung up because the conversation had ended. … [D]efendant’s complaints … lacked sufficient elaboration to signal to the trial court that the complaints were serious enough to warrant minimal inquiry … . People v Fredericks, 2025 NY Slip Op 01011, CtApp 2-20-25

Practice Point: The nature of defendant’s complaints about the behavior of defense counsel were not specific or serious enough to trigger the need for an inquiry by the judge. There was a three-judge dissent.

 

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THE FOIL PERSONAL PRIVACY EXEMPTION DOES NOT PROVIDE A BLANKET EXEMPTION FOR CIVILIAN COMPLAINTS AGAINST POLICE OFFICERS, INCLUDING UNSUBSTANTIATED COMPLAINTS; WHETHER SUCH A DOCUMENT SHOULD BE REDACTED OR WITHHELD MUST BE DETERMINED DOCUMENT-BY-DOCUMENT (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Cannataro, determined the personal privacy exemption in FOIL did not provide a blanket exemption for civilian complaints against police officers, including unsubstantiated complaints. Rather, whether the personal privacy exemption applies must be determined on a record-by-record basis:

FOIL’s personal privacy exemption permits an agency to withhold from public access any record that “if disclosed would constitute an unwarranted invasion of personal privacy” (Public Officers Law § 87 [2] [b]). We agree with respondents that FOIL, as amended in conjunction with the repeal of Civil Rights Law § 50-a, does not deny law enforcement officers the benefit of this exemption. However, the Appellate Division correctly concluded—consistent with uniform appellate precedent—that there is no categorical or blanket personal privacy exemption for records relating to complaints against law enforcement officers that are not deemed substantiated … . * * *

Rather than withhold all such records, Public Officers Law § 87 (2) requires an agency to evaluate each record individually and determine whether “a particularized and specific justification” exists for denying access on the ground that disclosing all or part of the record would constitute an unwarranted invasion of privacy … . Where redactions would prevent such an invasion and can be made without unreasonable difficulty, the agency must disclose the record with those necessary redactions … . The Appellate Division properly directed respondents to undertake this process, subject to further judicial review … . Matter of New York Civ. Liberties Union v City of Rochester, 2025 NY Slip Op 01010, CtApp 2-20-25

Practice Point: The personal privacy exemption in FOIL does not provide a blanket exemption for civilian complaints against police officers, even unsubstantiated complaints. Whether a document should be redacted or withheld under the personal privacy exemption must be determined document-by-document.​

 

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THE FORMER EXEMPTION FROM A FOIL REQUEST FOR POLICE DISCIPLINARY RECORDS WAS REPEALED IN 2020; THE REPEAL APPLIES RETROACTIVELY SUCH THAT DISCIPLINARY RECORDS CREATED PRIOR TO THE REPEAL ARE NO LONGER EXEMPT (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Halligan, determined that the repeal of the exemption from a FOIL request for police disciplinary records applies retroactively to documents created before the repeal:

… [W]e conclude that the Legislature intended for the statutory repeal to have retroactive effect. For starters, there is no indication that the repeal was intended to affect the usual manner in which FOIL operates. FOIL requires agencies to “make available for public inspection and copying all records” (Public Officers Law § 87 [2]), and it defines “records” with reference to whether an agency possesses information, but without reference to the date the information was created (id. § 86 [4] [defining “record” as “any information kept” or “held . . . in any physical form whatsoever”]). The amendments impose various redaction requirements and personal privacy protections for law enforcement disciplinary records specifically, yet they do not, for example, single out records created before a certain date for special treatment, or direct that disclosure of any record is tethered to the date it was created. Had the Legislature intended to deviate from FOIL’s presumption that information kept or held by an agency is disclosable by exempting records created prior to the repeal, or to mandate that an agency responding to a FOIL request ascertain and apply the law that governed when each responsive record was created, then surely it would have said as much. Matter of NYP Holdings, Inc. v New York City Police Dept., 2025 NY Slip Op 01009, CtApp 2-20-25

Practice Point: The exemption from a FOIL request for police disciplinary records was repealed in 2020. The repeal applies retroactively to police disciplinary records created prior to the repeal.

 

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MAJORITY: THE DEFENDANT’S WAIVER OF PARTICIPATION IN THE SHOCK INCARCERATION PROGRAM WAS NOT A COMPONENT OF THE SENTENCE AND THEREFORE THE LEGALITY OF THE SENTENCE CANNOT BE CHALLENGED BASED ON THE WAIVER; DISSENT: THE SHOCK WAIVER VIOLATES PUBLIC POLICY AND RENDERS THE SENTENCE ILLEGAL (CT APP).

The Court of Appeals affirmed the First Department’s rejection of defendant’s argument that his waiver of shock incarceration program violated public policy, over an extensive two-judge dissenting opinion. The dissent argued the waiver was against public policy rendering defendant’s sentence illegal. The majority avoided the issue entirely by holding the waiver was not part of the sentence:

Defendant’s sole contention on appeal is that the shock waiver is an illegal component of the sentence. We reject that contention on the ground that the waiver is not a component of the sentence … . * * *

From the dissent:

Shock is a six-month discipline and treatment-oriented program selectively administered to qualifying incarcerated persons selected by DOCCS when they are approximately three years away from the end of their prison sentence (see Correction Law §§ 867, 865). It has proven wildly successful on both the crime prevention and cost reduction fronts. In this case, the plea offer made by the People to Mr. Silva Santos [defendant] required him to waive participation in Shock. He told the sentencing court that he wished to be able to participate in Shock, and the court refused, citing the terms of the waiver of Shock in the plea agreement. The sole question on appeal is whether including the Shock waiver as part of the plea agreement is contrary to statutory authority or public policy. People v Santos, 2025 NY Slip Op 01008, CtApp 2-20-25

Practice Point: A defendant’s waiver of participation in the shock incarceration program is not a component of a sentence. Therefore a sentence cannot be challenged as illegal based on a defendant’s shock-waiver.

 

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