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WHERE THE SENTENCING JUDGE ORDERS DOCCS TO ENROLL DEFENDANT IN A SHOCK PROBATION PROGRAM, DOCCS CANNOT CONSIDER THE ORDER TO BE MERELY A RECOMMENDATION WHICH CAN BE IGNORED (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, determined the Department of Corrections and Community Supervision (DOCCS) did not have the discretion to treat Supreme Court’s order to enroll petitioner in the shock probation program as a recommendation which need not be implemented. Although the petitioner had been released from incarceration, the Third Department considered the case as an exception to the mootness doctrine:

… [W]hen applying the literal language of Penal Law § 60.04 (7) (a) and Correction Law § 865 (1), the most rational interpretation of the statutes is that, when the same sentencing judge imposes concurrent sentences on convictions for an eligible drug offense and another non-enumerated offense, the sentencing judge’s directive to enroll an eligible incarcerated individual into the shock incarceration program upon the conviction for the qualifying drug offense is binding on DOCCS, so long as the conviction on the additional non-drug offense is not one of the disqualifying offenses listed in Correction Law § 865 (1). Matter of Adams v Martuscello, 2026 NY Slip Op 04542, Third Dept 7-23-26

Practice Point: Absent a statutory exception, DOCCS must implement a sentencing judge’s order to enroll defendant in the shock probation program.

 

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STATUTORY PENALTIES ARE NOT AVAILABLE IN CLASS ACTIONS UNLESS THE STATUTE SPECIFICALLY AUTHORIZES RECOVERY IN A CLASS ACTION, NOT THE CASE HERE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the class action plaintiffs were not entitled to class certification for the causes of action seeking statutory penalties and attorneys’ fees for failure to provide wage notices and statements in violation of Labor Law section 195 (1) and (3):

CPLR 901(b) provides that, “[u]nless a statute creating or imposing a penalty, or a minimum measure of recovery specifically authorizes the recovery thereof in a class action, an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained as a class action.” The Labor Law provides for statutory penalties for violations of Labor Law § 195(1) and (3) (see id. §§ 198[1-b], [1-d] …). Inasmuch as Labor Law § 198(1-b) and § 198(1-d) do not specifically authorize recovery as part of a class action, the court should not have granted certification with respect to those issues … Maylou v Mittal, 2026 NY Slip Op 04497, Second Dept 7-22-26

Practice Point: Here the class action plaintiffs sought recovery of statutory penalties. The statutory penalties could not be recovered in a class action because the statute did not explicitly so provide.

 

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ALTHOUGH THE CONTRACT WAS BETWEEN SOPHISTICATED PARTIES, THE CLAUSE “THE OWNER AND ARCHITECT AGREE TO MUTUALLY WAIVE EACH OTHER [SIC] RIGHT TO SUE OR PLACE CLAIMS AGAINST EACH OTHER” WAS VOID AS AGAINST PUBLIC POLICY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the contract clause “THE OWNER AND ARCHITECT AGREE TO MUTUALLY WAIVE EACH OTHER [sic] RIGHT TO SUE OR PLACE CLAIMS AGAINST EACH OTHER” was unenforceable as against public policy:

… [T]he waiver provision … purports to completely foreclose the possibility of any form of judicial or nonjudicial review. Although … the agreement was negotiated at arm’s length between sophisticated parties, freedom of contract is not merely an individual right, and enforcing the waiver provision has implications beyond the individual choices of the contracting parties … . In 159 MP Corp. v Redbridge Bedford, LLC (33 NY3d 353), the Court of Appeals upheld a waiver precluding the plaintiffs from commencing a declaratory judgment action. The Court of Appeals noted that “[c]ritically, the waiver clause at issue here does not preclude access to the courts but leaves available other judicial avenues through which plaintiffs may adjudicate their rights under the leases” … . The Court of Appeals specified that “the waiver does not impair plaintiffs’ ability to seek damages on breach of contract or tort theories” … .

Here, in contrast, the waiver provision precludes access to the courts and leaves no judicial or nonjudicial avenues through which the plaintiff may adjudicate his rights under the agreement. Thus, the waiver provision is void and unenforceable as against public policy … . Hochhauser v Urban Off. Architecture, PLLC, 2026 NY Slip Op 04491, Second Dept 7-22-26

Practice Point: A contract clause with waives all access to the courts is void as against public policy.​

 

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THERE IS A QUESTION OF FACT WHETHER THE BANK USED THE CORRECT LANGUAGE IN ITS RPAPL 1304 NOTICE OF FORECLOSURE; THE LEGISLATION HAD BEEN AMENDED CHANGING “YOU COULD LOSE YOUR HOME” TO “YOU MAY BE AT RISK OF FORECLOSURE;” RPAPL 1304 MUST BE STRICTLY COMPLIED WITH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants in this foreclosure action raised a question of fact whether the bank complied with the notice requirements in RPAPL 1304, which had been changed prior to the commencement of the foreclosure action:

On December 20, 2016, the Legislature amended RPAPL 1304 to change the language required in the 90-day notice … . The amendment changed the opening language from “YOU COULD LOSE YOUR HOME” to “YOU MAY BE AT RISK OF FORECLOSURE” … . The amendment also added the language: “IMPORTANT: You have the right to remain in your home until you receive a court order telling you to leave the property. If a foreclosure action is filed against you in court, you still have the right to remain in the home until a court orders you to leave. You legally remain the owner of and are responsible for the property until the property is sold by you or by order of the court at the conclusion of any foreclosure proceedings. This notice is not an eviction notice, and a foreclosure action has not yet been commenced against you” … . This statutory language was in effect at the time this action was commenced, in July 2018 … .

Here, the plaintiff failed to establish that the notice sent to the defendants complied with the statutory language of RPAPL 1304 as it existed at the commencement of the action. Since the notice was sent more than a year and a half prior to the commencement of the action, nothing prevented the plaintiff from sending the defendants a new RPAPL 1304 notice, using the updated language, 90 days prior to commencing the action … . The defendants, therefore, raised a triable issue of fact as to whether the plaintiff strictly complied with RPAPL 1304 as it existed at the time the action was commenced. Bank of Am., N.A. v Thomas, 2026 NY Slip Op 04485, Second Dept 7-22-26

Practice Point: Here the bank failed to establish it used the correct statutory language in its RPAPL 1304 notice of foreclosure, raising a question of fact about whether RPAPL 1304 was strictly complied with.

 

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FAMILY COURT DID NOT HAVE JURISDICTION TO CONDUCT A “BEST INTERESTS OF THE CHILD” HEARING WHERE THE AUTHORIZED ADOPTION AGENCY WITHDREW ITS CONSENT TO THE ADOPTION; THE SECOND DEPARTMENT ASKED THE LEGISLATURE TO ADDRESS THIS STATUTORY PROBLEM (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wooten, was constrained to find that the court did not have jurisdiction to conduct a “best interests of the child” hearing where the authorized adoption agency withdrew its consent to the adoption. The Second Department explained that the current statutory scheme places an authorized adoption agency in the role typically performed by Family Court and requested that the Legislature address the problem:

The primary issue presented by this appeal is whether a court reviewing an adoption proceeding has jurisdiction to entertain a hearing to determine the best interests of a child where an authorized agency with custody of the child has withdrawn or withheld its consent to the adoption petition. We are constrained by the statutory scheme for adoptions from an authorized agency to answer that question in the negative. However, the circumstances underlying this proceeding highlight the potential conflict between the governing statutory law and the paramount concerns of the best interests of the child and achieving permanency. We therefore take this occasion to ask the New York State Legislature to consider whether changes are needed to ensure the best interests of children placed in the custody of authorized agencies for the purpose of adoption. * * *

… [B]efore a best interests hearing was conducted, the proposed adoptive father withdrew the adoption petition insofar as asserted by him on the ground that he was no longer seeking to jointly adopt the child with the appellant. The proposed adoptive father’s withdrawal of the joint adoption petition insofar as asserted by him was precipitated by the biological parents’ decision to support adoption of the child by the proposed adoptive father alone.

,,, [T]he agency withdrew its consent to the joint adoption of the child by the proposed adoptive parents on the ground that the proposed adoptive father “is no longer petitioning the Court to adopt jointly with [the appellant].” The agency then moved to dismiss the adoption petition on the ground that the Family Court lacked jurisdiction to entertain the adoption petition due to the agency’s withdrawal of its consent to the joint adoption. In support of the motion, the agency argued that dismissal of the adoption petition was mandated, without a best interests hearing, since the agency had lawful custody of the child and, therefore, its consent to the adoption was required pursuant to Domestic Relations Law § 111. Matter of Aurora A. (Leigh A.–Giuseppe A.), 2026 NY Slip Op 04500, Second Dept 7-22-26

 

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DEFENDANT’S MURDER CONVICTION HINGED ON THE CREDIBILITY OF A POLICE OFFICER’S CLAIM DEFENDANT CONFESSED TO INTENTIONAL MURDER; ALL OTHER STATEMENTS ATTRIBUTED TO DEFENDANT WERE CONSISTENT WITH AN ACCIDENTAL SHOOTING; WITHHOLDING TWO FEDERAL COMPLAINTS AGAINST THE OFFICER AND THE OFFICER’S “CIVILIAN COMPLAINT REVIEW BOARD” (CCRB) RECORDS FROM THE DEFENSE WAS A REVERSIBLE BRADY VIOLATION (FIRST DEPT).

The First Department, affirming the vacation of defendant’s conviction stemming from the People’s Brady violation, in a detailed opinion by Justice Kapnick, determined the murder conviction hinged on the credibility of a police officer’s (Rodriguez’) claim defendant confessed to intentional murder. All of the other statements attributed to defendant were consistent with an accidental shooting. The opinion is far too complex to fairly summarize here and is well worth studying:

Defendant argued that the People possessed but did not disclose (i) two federal complaints brought by pro se plaintiff Dale Robertson against Detective Rodriguez, (ii) a complaint brought by plaintiff Enger Miguel Javier against Detective Rodriguez in Bronx Supreme Court, and (iii) a three-page CCRB [Civilian Complaint Review Board] Officer History. Defendant argued that the People’s failure to disclose these materials undermined the fairness of his trial and may have impacted the verdict.

The verified complaint for Javier v City of New York, filed approximately one year [the instant shooting], alleged that Detective Rodriguez and his partner interrogated the plaintiff, Javier, over two days without Miranda warnings and deprived him of access to a lawyer … . It further alleged that the detectives forced a witness to falsely accuse Javier of the crime, even though Javier repeatedly told the detectives that he was innocent and identified the actual perpetrator. Ultimately, the Bronx DA dismissed the charges against Javier.

In Robertson, the plaintiff alleged that Detective Rodriguez coerced him into confessing that he had accidentally murdered the victim while he was being transported to Central Booking …. Robertson claimed that Detective Rodriguez and another officer transported him in the back of an unmarked police vehicle with the front seat pushed all the way back, crushing Robertson’s legs. Detective Rodriguez, who was seated next to him, allegedly pressed him against the window to coerce the confession.

The People conceded that they possessed but did not disclose a CCRB Officer History containing summary information regarding 40 allegations made against Detective Rodriguez, including the dates, categories of allegations, and disposition of each incident. The 40 allegations of misconduct reflect 16 discrete CCRB incidents where Detective Rodriguez allegedly used physical force, caused property damage and threatened arrest. People v White, 2026 NY Slip Op 04475, First Dept 7-16-26

Practice Point: Consult this opinion for an in-depth analysis of when civilian complaints against a police officer must be disclosed by the People as Brady material.

 

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A POLICE REPORT INDICATING DEFENDANT WAS “HIGHLY INTOXICATED” AT THE TIME OF THE SHOOTING WAS NOT ADMISSIBLE AS A BUSINESS RECORD, CRITERIA EXPLAINED IN SOME DEPTH (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Powers, affirmed County Court’s ruling that a police report which indicated defendant was “highly intoxicated” was not admissible as a business record. Defendant sought to use the report as a basis for his expert’s testimony (presumably to the effect that defendant was intoxicated at the time of the shooting):

It is uncontested that the drafter of the report, a lieutenant with the State Police, did not observe the events described therein or, more specifically, defendant’s level of intoxication that night. The inquiry thus distills to whether defendant, as the proponent of the report, sufficiently demonstrated that the source of the statement that he was “highly intoxicated” was an individual with a duty to report such information. We find that defendant failed to meet this burden. The hearing testimony demonstrated that the lieutenant drafted the report based upon information received from numerous sources. However, he was unable to identify who had reported defendant to be highly intoxicated. Defendant’s argument that, because the scene had been secured, the statement must have come from a responding officer’s personal observations is entirely speculative, as nothing in the language of the report itself or the record confirms that an officer was the source of the statement. It is possible that the clause was included based upon defendant’s fiance’s description of defendant as “drunk as a skunk” when making a 911 call that evening. She, as opposed to responding law enforcement, had no business duty to report … . Because defendant did not meet this foundational requirement by demonstrating that “the initial declarant was] acting within the course of regular business conduct,” he failed to demonstrate the admissibility of the report, as well as the specific statement at issue, pursuant to the business records exception … . People v Mawhiney, 2026 NY Slip Op 04460, Third Dept 7-16-26

Practice Point: Here defendant unsuccessfully sought to have a police report which indicated he was highly intoxicated at the time of the shooting admitted as a business record. The criteria for admission as a business record are explained in depth.

 

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A DISCOVERY RULE ENACTED IN 2018 REACHED BACK TEN MONTHS BEFORE THE RULE WAS ENACTED TO RENDER TIMELY THIS MEDICAL MALPRACTICE CAUSE OF ACTION ALLEGING THE NEGLIGENT FAILURE TO DIAGNOSE CANCER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the medical malpractice cause of action alleging the negligent failure to diagnose cancer was rendered timely by a discovery rule which reaches back ten months before the discovery rule was enacted:

The causes of action arising from negligent failure to diagnose cancer accrued on October 23, 2014, when the defendants failed to advise [plaintiff] to submit to additional testing, such as a mammogram. However, the 2018 enactment also includes a provision providing for the revival of certain causes of action, such that an action may be commenced within six months after the effective date, i.e., by July 31, 2018, when it alleges a failure to diagnose cancer or a malignant tumor, and when it became time-barred within 10 months prior to the effective date of the statute—January 31, 2018, that is, on or after March 31, 2017 (see L 2018, ch 1, § 4…). Here, the causes of action qualify for revival pursuant to that provision, as they became time-barred in April 2017, within the 10-month period prior to the act’s effective date, and this action was commenced on June 11, 2018, prior to the July 31, 2018 deadline … . Rhodes v Dilena, 2026 NY Slip Op 04444, Second Dept 7-15-26

Practice Point: Consult this decision for an explanation of the application of the discovery rule enacted in 2018 providing for the revival of a medical malpractice action alleging negligent failure to diagnose cancer after the statute of limitations expired.

 

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THE JUDGE FAILED TO FOLLOW THE THREE-STEP PROCEDURE FOR ASSESSING A BATSON CHALLENGE; THE DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO ARGUE THAT THE PEOPLE’S PURPORTED RACE-NEUTRAL REASONS FOR ELIMINATING A PROSPECTIVE HISPANIC JUROR WERE PRETEXTUAL; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the judge did not follow the established three-step procedure for assessing defendant’s Batson challenge to the People’s peremptory challenge to an Hispanic prospective juror:

The defendant challenged the People’s use of a peremptory challenge pursuant to Batson v Kentucky (476 US 79) with respect to the challenge to strike the third Hispanic prospective juror. The defendant contended that the People’s prior use of a peremptory challenge to a Hispanic prospective juror in the first round of jury selection and the People’s challenges to the two prospective Hispanic jurors in the second round were racially motivated. The defendant pointed out that the People moved to strike the only three Hispanic prospective jurors. In response to the defendant’s challenge, the County Court required the defendant to articulate an additional reason as to why the defendant contended that the People’s exercise of its peremptory challenge was racially motivated. Defense counsel essentially reiterated his contentions. Thereafter, following the People’s articulation of a race-neutral reason for their exercise of each of the three challenges, the court denied the defendant’s Batson challenge on the ground that the defendant did not carry his prima facie burden. The court failed to reach step three of Batson wherein the burden shifts to the defendant to argue a basis as to why the reasons proffered by the People were pretextual. * * *

… [T]he defendant satisfied step one of Batson … . Accordingly, at that point, the burden shifted to the People to proffer race-neutral explanations for exercising their peremptory challenges to eliminate those prospective jurors … . Thereafter, the court failed to allow the defendant to challenge whether the reasons proffered, although facially neutral, were pretextual and not genuine reasons for the challenges … . People v Williams, 2026 NY Slip Op 04440, Second Dept 7-15-26

Practice Point: Consult this decision for a clear explanation of the three-step procedure for assessing a Batson challenge to the People’s exercise of a peremptory challenge.​

 

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VERTICALLY-STACKED SHEETS OF METAL ON A DOLLY FELL ON PLAINTIFF WHEN HE MOVED IT; THE HEIGHT DIFFERENTIAL WAS NOT DE MINIMUS AND PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) FALLING-OBJECT CASE; THE FACT THAT THE DOLLY BELONGED TO ANOTHER CONTRACTOR WAS NOT DISPOSTIVE, PLAINTIFF WAS DIRECTED TO MOVE THE DOLLY AS PART OF HIS EMPLOYMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff should have been awarded summary judgment on the Labor Law 240(1) cause of action. Plaintiff moved a dolly belonging to another contractor. The dolly tipped over and the vertically-stacked sheets of metal that were on the dolly struck him. The elevation differential between the dolly and floor was not de minimus and, although the dolly belonged to another contractor, plaintiff was directed to move it:

Based on plaintiff’s testimony as well as the testimony of OTL Enterprises’ principal that an unsecured load of material on a dolly was unsafe because the material could fall, plaintiff established that the metal sheets required securing … , the material that fell here was elevated on a dolly such that the elevation differential was not de minimus but rather was sufficient for the load of metal sheets to generate a significant amount of force and was a proximate cause of plaintiff’s injuries.

Plaintiff’s conduct of moving another subcontractor’s loaded dolly that was in the way of his work after an unnamed site supervisor allegedly directed him to do so was in the scope of plaintiff’s employment and was not the act of a volunteer falling outside the ambit of Labor Law § 240(1) … . Plaintiff’s conduct in moving the dolly was at most comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Aponte v 298 E. Vil. Owner LLC, 2026 NY Slip Op 04138, First Dept 6-30-26

Practice Point: The difference in height between the platform of a dolly and the floor was not de minimus. Plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action after being struck by metal plates which fell from the dolly.

 

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