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FAMILY COURT SHOULD HAVE HELD A HEARING ON WHETHER MOTHER’S ADDRESS SHOULD BE KEPT CONFIDENTIAL; FAMILY COURT SHOULD NOT HAVE DELEGATED ITS AUTHORITY TO THE THERAPIST TO DETERMINE FATHER’S LEVEL OF PARTICIPATION IN THE CHILD’S THERAPY (FIRST DEPT).

The First Department, reversing (modifying) Family Court, determined the court should have held a hearing on whether mother’s address could be kept confidential; and the court should not have delegated its authority to all the therapist to decide the extent father’s participation in the child’s therapy:

Section 154-b(2)(a) of the Family Court Act authorizes the court, on its own motion or upon the motion of any party or the child’s attorney, to permit the party or the child to keep his or her address confidential from an adverse party if the court finds that disclosure of the address or other identifying information would pose an unreasonable risk to the health or safety of a party or the child. Thus, the statute requires a fact-specific determination as to the possible effects of such disclosure. Although the mother sought an address confidentiality order and Family Court acknowledged the need for a separate hearing, ultimately holding the issue in abeyance, the record is devoid of any determination as to whether disclosure of the address would pose an unreasonable risk to the child. In the absence of such a finding, the directive requiring disclosure cannot be said to reflect a proper exercise of discretion.

Family Court further erred in authorizing the father to communicate with the child’s therapist and to participate in therapy at the therapist’s discretion. This provision effectively delegates to the treating therapist the authority to determine whether, when, and under what circumstances the father may have contact with the child, which is an issue reserved to the court … . The directive also contradicts the court’s finding that contact with the father would harm the child’s mental health, and risks inhibiting the child’s openness with the child’s therapist if the child knows disclosures could be shared with or occur in the father’s presence. Thus, the order undermines the therapeutic process and risks exacerbating, rather than alleviating, the child’s emotional distress. Matter of Monet O. v Leroy L.B., 2026 NY Slip Op 02788, First Dept 5-5-26

Practice Point: Before determining whether a party’s address should be kept confidential, Family Court should hold a hearing.

Practice Point: The Family Court should not delegate its authority to determine the level of father’s participation in the child’s therapy to the therapist.

 

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THE INSTRUCTIONS CONCERNING THE USE OF CELL PHONES DURING A POLICE-DEPARTMENT PROMOTIONAL EXAM WERE AMBIGUOUS; THEREFORE THE DETERMINATION PETITIONERS VIOLATED THE INSTRUCTIONS WAS IRRATIONAL (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Higgitt, determined the New York City Department of Citywide Administrative Services (DCAS), acted irrationally when it found that petitioners-police-officers had violated the prohibition of the use of cell phones before dismissal from a promotional examination. The petitioners did not use their cell phones during the exam. Rather the cell phones were used after completion of the exam but before dismissal from the exam room. The First Department held that the instructions concerning the use of cell phones were ambiguous:

Here, rationality is lacking, not for a want of evidence, but because the standard to which DCAS held petitioners was ambiguous. The notices of violations issued by DCAS specified, among other things, that petitioners breached a test-taking rule providing that, “[b]efore, during and after your test, you are not permitted to use, have turned on or have out in the open: cellular phones.” The rule does not indicate when the cell-phone prohibition begins or when it ends….  Nothing in the rule, which DCAS quoted from the instruction sheet provided to the candidates, suggests the location or locations to which the cell phone prohibition applied. The ambiguity of the rule, coupled with the ambiguity as to when the test concluded (which the executive deputy commissioner acknowledged) and the prevalence of cell phones in the exam room, make the determinations irrational. Matter of Bifulco v City of New York, 2026 NY Slip Op 02772, First Dept 5-5-26

Practice Point: An administrative punishment for a purported rule violation will be deemed irrational if the rule is ambiguous.

 

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ALL PARTIES AGREE THE TWO SURROGACY AGREEMENTS ARE UNENFORCEABLE; MATTER REMITTED FOR A HEARING TO DETERMINE PARENTAGE BASED ON THE INTENT OF THE PARTIES AND THE BEST INTERESTS OF THE CHILDREN (FOURTH DEPT).

The Fourth Department, reversing (modifying) Family Court, determined that both surrogacy agreements were unenforceable and the parentage determination should not have been made without a hearing on the intent of the parties and the best interests of the children:

… [T]here is no real dispute that neither surrogacy agreement meets the material requirements of Family Court Act article 5-C. The original surrogacy agreement is unenforceable because it was not signed by Robert (see Family Ct Act § 581-403 [a] [1]; [d]; see also § 581-402 [b] [3]). The second agreement is unenforceable because it was not executed prior to “the commencement of medical procedures in furtherance of embryo transfer” (§ 581-403 [b]). Thus, the court was required to determine parentage “based on the intent of the parties, taking into account the best interests of the child[ren]” (§ 581-407).

… [A]ll three parties to the second surrogacy agreement—Mary, Robert and the Surrogate—agree that their intent was for Mary and Robert to be the children’s parents, and none of them contemplated anyone else becoming a parent. … [O]n this record the court failed to give due consideration to the best interests of the children as required by the statute (see Family Ct Act § 581-407; see also § 581-701 …). We therefore reverse the … judgment of parentage, and we remit the matter to Family Court to hold an immediate hearing at which the court, in making its parentage determination, must consider evidence of the intent of the parties, taking into account evidence pertaining to the best interests of the children. Matter of Baby A. (Mary B.L.–Robert A.L.), 2026 NY Slip Op 02759, Fourth Dept 5-1-26

Practice Point: Consult this decision for insight into how a court should handle determining parentage where the surrogacy agreements are unenforceable.

 

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LAW OFFICE FAILURE DEEMED AN ADEQUATE EXCUSE FOR A DEFAULT IN RESPONDING TO A SUMMARY JUDGMENT MOTION; TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined that law office failure was an adequate excuse for plaintiffs’ default in responding to defendant’s motion for summary judgment in this traffic accident case:

… [P]laintiffs proffered a reasonable excuse of law office failure for the brief delay in serving their opposition papers to defendant’s motion (see CPLR 2005…). Although plaintiffs’ counsel admittedly failed to properly calendar the motion opposition date, counsel did attempt to seek defendant’s consent for an adjournment prior to the return date of the motion, which plaintiffs’ counsel apparently believed to be the due date for the opposition to defendant’s motion. Further, plaintiffs’ counsel submitted opposition papers on the return date, albeit after business hours, upon the mistaken belief that the motion was to be taken on submission. There is no evidence of a willful default and the negligible delay cannot be said to have prejudiced defendant … . April I.O. v Taylor, 2026 NY Slip Op 02741, Fourth Dept 5-1-26

Practice Point: Consult this decision for a rare instance of law office failure serving as an adequate excuse for a default in responding to a motion for summary judgment.

 

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IN THIS BREACH OF CONTRACT ACTION BROUGHT BY PLAINTIFF DONALD J TRUMP AGAINST MARY L TRUMP, DEFENDANT WAS ENTITLED TO DISCOVERY RELEVANT TO HER AFFIRMATIVE DEFENSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s discovery requests were relevant to her “fraudulent inducement” affirmative defense and should have been granted:

Plaintiff commenced this action against defendant for breach of the confidentiality provisions of a 2001 settlement agreement. In her answer, defendant asserted the affirmative defense of fraudulent inducement. Specifically, she alleged that she relied upon the valuation of certain assets set forth in the parties’ 2001 settlement agreement, and that those valuations were false. Defendant’s motion to compel seeks discovery of materials related to the valuations provided in the settlement agreement. Plaintiff bears the burden of establishing that the discovery sought by defendant, which relates to an affirmative defense of fraudulent inducement that plaintiff has not otherwise challenged in this action, is improper … .

Supreme Court improvidently exercised its discretion in denying defendant’s motion. CPLR 3101(a) directs “full disclosure of all matter material and necessary in the prosecution or defense of an action,” and is to be “interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening issues and reducing delay and prolixity” … . These principles entitle defendant to the requested discovery material to establish her affirmative defense … . Trump v Trump, 2026 NY Slip Op 02735, First Dept 4-30-26

Practice Point: Here in this breach of contract action, defendant was entitled to discovery relevant to her “fraudulent inducement” affirmative defense.

 

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THE EDUCATION LAW PRIVILEGE WHICH PROTECTS HOSPITAL QUALITY-REVIEW PROCEEDINGS DID NOT APPLY TO REPORTS ABOUT UNSAFE WORKING CONDITIONS AT THE HOSPITAL; PLAINTIFF IN THIS WRONGFUL TERMINATION ACTION WAS ENTITLED TO DISCOVERY OF THE REPORTS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff in this wrongful termination and retaliation action was entitled to discovery of so-called RL6 reports addressing unsafe working conditions. Defendant hospital claimed the documents were privileged under Education Law § 6527 (3) and the Patient Safety and Quality Improvement Act of 2005 (42 USC § 299b-21 et seq. [hereinafter PSQIA]):

Plaintiff was employed as a nursing assistant and technician within defendant’s secure unit for patients with behavioral health and psychiatric conditions. He commenced this action for wrongful termination and retaliation under Labor Law §§ 740 and 741, claiming that defendant unlawfully fired him after he reported unsafe workplace practices and conditions. During discovery, plaintiff demanded copies of his statements to defendant, including his June 2022 report of safety concerns submitted to defendant’s electronic reporting system. Plaintiff also requested the parties’ communications about the secure unit and defendant’s responses to prior related complaints or concerns. * * *

“[A] party does not obtain the protection of Education Law § 6527 (3) merely because the information sought could have been obtained during the course of a hospital review proceeding[.] . . . The exemption applies only where the information was in fact so obtained” … . In short, the administrator’s conclusory affidavit is insufficient to satisfy defendant’s burden under Education Law § 6527 (3) … . Moreover, defendant conceded, both in its brief and at oral argument, that the RL6 reports were not submitted to a quality assurance or peer review committee. …

Assuming, without deciding, the doubtful proposition that PSQIA applies to this state law claim, defendant failed to demonstrate that the RL6 reports at issue constitute privileged patient safety work product. Adams v Bassett Healthcare Network, 2026 NY Slip Op 02706, Third Dept 4-30-26

Practice Point: Consult this decision for insight into the scope of the Education Law privilege protecting hospital quality-review proceedings. Here the privilege did not extend to employee reports about unsafe working conditions.

 

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UPON RESPONDENT’S FAILURE TO APPEAR, FAMILY COURT DISMISSED RESPONDENT’S COUNSEL AND HELD THE ORDER-OF-PROTECTION HEARING IN RESPONDENT’S ABSENCE; RESPONDENT WAS DENIED DUE PROCESS OF LAW; ORDER VACATED (THIRD DEPT).

The Third Department, reversing Family Court, vacated the order of protection issued upon respondent’s “default” based on the denial of respondent’s due process rights:

Petitioner commenced this proceeding in November 2023 seeking an order of protection against respondent. After an initial appearance and subsequent conferences at which the parties variously appeared virtually, in person or through counsel, respondent failed to appear for the April 2024 in-person hearing. Family Court directed respondent’s counsel to leave the courtroom, at which point respondent’s counsel offered to have respondent appear virtually, asserting that respondent was in “hiding” in light of criminal charges filed against petitioner in connection with her alleged stalking of, and firing a rifle at, respondent in August 2023. The court implicitly denied respondent’s request by again directing respondent’s counsel out of the courtroom. The hearing proceeded, during which petitioner testified and was subject to cross-examination by the attorney for petitioner’s children. …

Typically, “[a] party seeking to vacate a default judgment must establish both a reasonable excuse for the default and a meritorious defense to the underlying claim” … . “No such showing is required, however, where a party’s fundamental due process rights have been denied” … . In this case, respondent’s counsel attended in person evidently ready to proceed, offered an excuse for respondent’s nonappearance and provided an alternate means to move forward in his absence … . Respondent’s counsel made no application to withdraw, and Family Court did not relieve respondent’s counsel, and thus respondent’s attorneys remained counsel of record when they were dismissed from the courtroom without explanation (see CPLR 321 [b] …). The court’s atypical conduct in that regard, coupled with the court’s choice to decline available options to proceed in respondent’s absence, deprived respondent of his opportunity to be heard (see CPLR 321 [a] …). Matter of April V. v Jonathan U., 2026 NY Slip Op 02702, Third Dept 4-30-26

Practice Point: An order issued upon a party’s default may be vacated when the party’s due process rights were violated by the judge. Here the judge ordered the party’s counsel to leave and held the hearing in the party’s absence after the counsel explained the party’s absence and offered to proceed virtually.

 

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PETITIONER-INMATE PREVAILED IN THE PROCEEDING TO ANNUL THE PENALTY OF CONFINEMENT FOR 120 DAYS IN A SPECIAL HOUSING UNIT (SHU); PETITIONER WAS ENTITLED THE AWARD OF COUNSEL FEES (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined that petitioner-inmate had prevailed in the proceeding to annul the 120-day confinement in the Special Housing Unit (SHU) (imposed on him for threats of violence) and therefore was entitled to counsel fees. The 120-day confinement was annulled because the correctional facility did not comply with the requirements of the Humane Alternatives to Long-Term Solitary Confinement Act (hereinafter the HALT Act) and the Special Housing Unit Exclusion Law (hereinafter the SHU Exclusion Law):

… [T]he plain language of these statutes clearly required specific conduct and findings to impose a 120-day confinement sanction against an incarcerated individual housed in an RMHU [residential mental health unit]. Even putting aside the lack of the required written findings, respondent did not have a reasonable basis to conclude that petitioner’s statements — made during a crisis call while he was confined in an RMHU without any indication that he had access to the individuals who were the subject of his threats or a history of causing serious physical injury or death to another person — constituted a qualifying threat under Correction Law § 137 (6) (k) (ii) (A). Although Supreme Court recognized as much in annulling the 120-day confinement sanction, expressly stating that “the administrative record . . . does not contain facts from which the court can discern a rational basis for respondent’s determination,” it nevertheless denied petitioner’s application for counsel fees on the ground that respondent’s position was substantially justified. Given the inherent conflict in Supreme Court’s determinations and our finding that respondent’s position was not “substantially justified” within the meaning of CPLR 8601, we find that Supreme Court abused its discretion in denying petitioner’s request for counsel fees on this basis … . Matter of Walker v Martuscello, 2026 NY Slip Op 02701, Third Dept 4-30-26

Practice Point: Consult this decision for insight into the application of the Humane Alternatives to Long-Term Solitary Confinement Act (the HALT Act) and the Special Housing Unit Exclusion Law (the SHU Exclusion Law) with respect to the imposition of long-term solitary confinement on an inmate.

 

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THE “RECTAL INTRUSION” BY CORRECTION OFFICERS SEEKING TO FORCE CLAIMANT-INMATE TO COMPLY WITH THEIR ORDERS SHOULD HAVE BEEN CONSIDERED AS AN ELEMENT OF DAMAGES IN THIS BATTERY ACTION AGAINST THE STATE; THE CONDUCT WAS WITHIN THE SCOPE OF THE CORRECTION OFFICERS’ EMPLOYMENT; THE STATE CAN BE HELD VICARIOUSLY LIABLE (THIRD DEPT).

The Third Department, reversing the Court of Claims, in a full-fledged opinion by Justice Mackey, determined the court should have considered the insertion of an object in claimant’s rectum as an element of damages in this suit by claimant-inmate against the State. The Court of Claims determined the State could not be vicariously liable because the conduct was outside the scope of the correction-officers’ employment. The Third Department disagreed, noting that the officers were attempting to force claimant to comply with their orders and the conduct was not motivated by sexual gratification:

There is no evidence that the rectal intrusion here was for any of the officers’ personal sexual gratification. Rather, the officers’ statements made during and immediately following the incident, as reported by claimant and credited by the Court of Claims, reflect that the sexually related conduct here was part of an overall — albeit objectively excessive — use of force to compel claimant’s compliance with a directive and, thus, was part of the officers’ employment-related function to enforce discipline within the correctional facility (see Correction Law § 137 [5]; 7 NYCRR 251-1.2 [d] …). … [T]he potential for such abuse of authority, if not the precise vile conduct engaged in here, is expressly addressed in the applicable instructions to correction officers in performing their employment-related disciplinary duties (see generally Correction Law § 137; 7 NYCRR 251-1.2). The record thus establishes defendant’s liability as to that part of the claim for damages related to the rectal intrusion … . Accordingly, we reverse the judgment to the extent that it excluded the same and remit for a new determination of claimant’s damages not inconsistent with this Court’s decision … . C.J. v State of New York, 2026 NY Slip Op 02699, Third Dept 4-30-26

Practice Point: Here the “rectal intrusion” inflicted by correction officers upon claimant-inmate was part of an attempt to force claimant to comply with their orders. Therefore the conduct was withing the scope of the officers’ employment for which the State can be vicariously liable.

 

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DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE EMPANELING OF AN ANONYMOUS JURY CONSTITUTED INEFFECTIVE ASSISTANCE; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, determined defense counsel was ineffective for failing to object to the empaneling of an anonymous jury:

… [D]efendant contends that his trial counsel was ineffective for failing to object when County Court empaneled an anonymous jury. In support of his motion, defendant submitted the affidavit of his trial counsel, who acknowledged that the decision to empanel an anonymous jury “did not sound right” at the time, but that he did not become aware that this was possibly a reversible error until April 2024, when this Court handed down Heidrich [.226 AD3d 1096]. Defendant’s trial counsel further stated that he “had not researched the issue before . . . trial” and that the “failure to object was not a result of any strategy on [his] part.” Although the People contend that the leading case on the anonymous jury issue existed prior to defendant’s trial and had not been expanded upon by Heidrich, the People acknowledge on appeal that “the empaneling of an anonymous jury in violation of CPL 270.15 constitutes a per se denial of a defendant’s right to a fair trial that cannot be subjected to harmless error analysis.” Indeed, a single error may qualify as ineffective assistance where it “compromise[s] a defendant’s right to a fair trial” … , particularly where, like here, the jurors were only identified by numbers and the record fails to reveal whether their names were ever provided to defense counsel — “which materially heightens the risk of prejudice” … . Accordingly, under the unique circumstances of this particular case and where the legal basis for the motion is undisputed through sworn allegations (see CPL 440.30 [3]), we substitute our discretion for that of the motion court and grant defendant’s motion to vacate the judgment of conviction … . As such, remittal for a new trial is required. People v Rahaman, 2026 NY Slip Op 02696, Third Dept 4-30-26

Practice Point: Defense counsel’s failure to object to the empaneling of an anonymous jury can amount to ineffective assistance and warrant a new trial in the absence of preservation.

 

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