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A WAIVER OF APPEAL DOES NOT PRECLUDE A CHALLENGE TO A PROBATION CONDITION ALLOWING WARRANTLESS SEARCHES; THE CONDITION ALLOWING ALLOWING WARRANTLESS SEARCHES FOR DRUGS WAS NOT REASONABLY RELATED TO DEFENDANT’S REHABILITATION (FIRST DEPT).

The First Department determined (1) a waiver of appeal does not preclude a challenge to a probation condition allowing warrantless searches, and (2) there was no justification for the condition allowing warrantless searches for drugs:

Defendant’s appeal waiver does not foreclose his challenge to the condition of probation requiring that he consent to warrantless searches of his person, vehicle, and home for weapons, drugs, and drug paraphernalia … , which also does not require preservation … . To the extent this condition authorized the Department of Probation to conduct warrantless searches for weapons, we find that it was “reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so” … , “given that he was armed with a sharp object when he committed this violent offense” … .

However, the portion of the condition of probation authorizing warrantless searches by a probation officer for illegal drugs and drug paraphernalia “was not reasonably related to defendant’s rehabilitation” … . Defendant’s crime “did not appear connected to the sale or use of drugs” (id.), he was not “under the influence of any substance” when he committed the offense, and he “had no history of offenses involving substance abuse” … . People v Rivera, 2025 NY Slip Op 03654, First Dept 6-17-25

Practice Point: A wavier of appeal does not preclude a challenge to a probation condition allowing warrantless searches.

Practice Point: A condition of probation allowing warrantless searches for drugs is not appropriate where there is no history of drug offenses.

 

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PLAINTIFF’S DECEDENT WAS KILLED WHEN THROWN FROM A RENTED MOPED; THE RENTAL AGREEMENT INCLUDED AN ARBITRATION CLAUSE; THE NEGLIGENCE CAUSES OF ACTION ARE SUBJECT TO THE ARBITRATION CLAUSE; HOWEVER, THE WRONGFUL DEATH CAUSE OF ACTION IS NOT SUBJECT TO THE ARBITRATION CLAUSE; NEGLIGENCE AND WRONGFUL-DEATH CAUSES OF ACTION ARE DISTINCT AND ADDRESS DIFFERENT INJURIES; THE WINNING ISSUE WAS RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice McCormack, determined the plaintiffs in this wrongful death action, who are the parents of plaintiffs’ decedent and the administrators of decedent’s estate, are not bound by the decedent’s agreement to arbitrate. The decedent rented an electric moped from defendant Ravel by downloading an app with an arbitration clause. Decedent was killed when he was thrown from the moped and struck by a car. All agreed that the negligence causes of action were subject to the arbitration clause. Plaintiffs successfully argued the wrongful death action is distinct from the negligence actions and is not subject to the arbitration clause. The winning argument was first raised on appeal. The court heard the appeal because it “present[ed] a pure question of law that appears on the face of the record and could not have been avoided if raised at the proper juncture” …:

Here, it is undisputed that the plaintiffs, individually, did not enter into an agreement with Revel to arbitrate. However, the plaintiffs are the administrators of the decedent’s estate, and the causes of action arise from the same incident that caused the decedent’s death. The issue, therefore, turns on the nature of wrongful death causes of action and whether they are derivative of negligence causes of action or independent of negligence causes of action. * * *

The law of this State is clear that a wrongful death cause of action is a separate and distinct cause of action to redress the injuries suffered by a decedent’s distributees as a result of the decedent’s death. “‘A cause of action to recover damages for wrongful death is a property right belonging solely to the distributees of the decedent and vests in them at the decedent’s death'” … . This is true even where no cause of action alleging negligence exists. * * * … [T]his Court [has] determined that a cause of action alleging wrongful death was not derivative of a negligence cause of action, but [is] an independent cause of action vested in the distributees. “… [T]he surviving personal injury action and the wrongful death cause of action … are different in many respects. The two causes of action exist in order to protect the rights of different classes of persons, and the measure of damages is entirely different” … . “Wrongful death actions are brought not to compensate the decedent or his [or her] estate for the pain and suffering attendant to the injury, but rather to recover, on behalf of decedent’s distributees, the pecuniary value of the decedent’s life” … . Further, the different causes of action accrue at different times. A negligence cause of action accrues at the time of the injury, while a wrongful death cause of action does not accrue until the decedent’s death, which can occur after the injury is sustained … . Marinos v Brahaj, 2025 NY Slip Op 03561, Second Dept 6-11-25

Practice Point: Negligence and wrongful death causes of action are distinct and address different injuries. Here an arbitration clause in a moped rental contract executed to by plaintiffs’ decedent was deemed to apply to the negligence causes of action stemming from the moped accident, but not to the related wrongful death cause of action.​

Practice Point: Consult this opinion for an example of when an issue raised for the first time on appeal will be considered by the appellate court.

 

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ALTHOUGH THE EVIDENCE OF DEFENDANT’S CONSTRUCTIVE POSSESSION OF DRUGS AND DRUG PARAPHERNALIA FOUND IN HIS GIRLFRIEND’S APARTMENT WAS DEEMED LEGALLY SUFFICIENT, THE FINDING THAT DEFENDANT CONSTRUCTIVELY POSSESSED THE DRUGS AND PRAPHERNALIA WAS DEEMED AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s bench-trial conviction of criminal possession of a controlled substance and criminally using drug paraphernalia, determined the finding that defendant constructively possessed the drugs and paraphernalia located in his girlfriend’s apartment was against the weight of the evidence. Note that the Fourth Department concluded there was legally sufficient evidence of constructive possession:

… “[W]here there is no evidence that the defendant actually possessed the controlled substance or drug paraphernalia, the People are required to establish that the defendant exercised dominion or control over the property by a sufficient level of control over the area in which the contraband is found” … . The People may establish such constructive possession by circumstantial evidence … , “but a defendant’s mere presence in the area in which the contraband is discovered is insufficient to establish constructive possession” … .

Here, while the People adduced evidence establishing that defendant had a key to the apartment and stayed there “from time to time,” defendant was not a party to the lease and a search of the premises did not reveal anything to “specifically connect[ ] defendant to the places where the contraband was ultimately found” … . Moreover, none of the contraband was in plain view … and, thus, no statutory presumption of defendant’s knowing possession applied … .

We conclude that the weight of the evidence does not support a finding that defendant “exercised dominion or control over the [contraband] by a sufficient level of control over the area in which [it was] found” … . People v Smith, 2025 NY Slip Op 03454, Fourth Dept 6-6-25

Practice Point: Consult this decision for an example of when evidence is legally sufficient to withstand a motion for a trial order of dismissal but a finding based on that same evidence is deemed “against the weight of the evidence.”

 

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THE JUDGE’S PROVIDING ERRONEOUS INFORMATION ABOUT THE MAXIMUM SENTENCE DEFENDANT WAS FACING NEED NOT BE PRESERVED FOR APPEAL AND RENDERED THE GUILTY PLEA INVOLUNTARY (THIRD DEPT).

he Third Department, reversing defendant’s conviction by guilty plea, determined the judge’s providing erroneous information about the maximum sentence defendant was facing did not need to be preserved for appeal and rendered the guilty plea involuntary:

… County Court advised [defendant] that, if he elected to proceed to trial and was convicted of all offenses as a second felony drug offender, he faced a sentencing exposure of 36 years in prison rather than the correct, capped term of 30 years … . … [A]s the Court of Appeals recently made clear, where “the court provides the defendant with erroneous information concerning their maximum sentencing exposure that is contrary to the undisputed text of the Penal Law, fails to correct its error on the record, and the defendant has no apparent reason to question the accuracy of that information, the defendant need not preserve a challenge to the voluntariness of the guilty plea on that ground” … . * * *

Although defendant here was no stranger to the criminal justice system and received a reasonable sentencing commitment from County Court, the plea colloquy itself reflects that defendant believed that he had been overcharged and questioned whether he would be convicted if he went to trial. Defendant made clear during the plea colloquy, in fact, that he was only pleading guilty to the indictment because he would rather[*3]”get the high/low of 16/14″ than go to trial and risk “more time in state prison.” Even then, defendant remained conflicted about pleading guilty until the moment he entered his formal plea, asking County Court immediately before he did so to repeat the potential sentencing exposure he faced if he did not “want to go through all of this and [went] to trial.” … .People v Shaw, 2025 NY Slip Op 03358, Third Dept 6-5-25

Practice Point” Here the judge told defendant he was facing 36 years in prison when the actual maximum was 30. That error need not be preserved for appeal and, based on defendant’s remarks and questions at sentencing, was deemed to have rendered defendant’s guilty plea involuntary.

 

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HERE A MOTION TO RENEW AN APPEAL WAS GRANTED AND THE PRIOR APPELLATE DECISION WAS VACATED BASED ON THE ENACTMENT OF THE FORECLOSURE ABUSE PREVENTION ACT (FAPA); THE THIRD DEPARTMENT HAD HELD THE FORECLOSURE ACTION WAS TIMELY BECAUSE THE BANK HAD DE-ACCELERATED THE DEBT; BUT FAPA RENDEREDTHE DE-ACCELERATION INVALID; SO THE INITIAL SUPREME COURT DECISION GRANTING SUMMARY JUDGMENT TO THE DEFENDANTS WAS REINSTATED (THIRD DEPT).

The Third Department granted defendants’ motion to renew an appeal and vacated its prior decision because of the subsequent enactment of the Foreclosure Abuse Prevention Act (FAPA). The Third Department had reversed summary judgment in defendants’ favor on the ground the bank had de-accelerated the debt rendering the foreclosure action timely. But the FAPA now precludes such a de-acceleration and applies retroactively. Therefore Supreme Court’s decision granting summary judgment dismissing the foreclosure action was reinstated:

Defendants now move to renew, contending that the enactment of the Foreclosure Abuse Prevention Act (hereinafter FAPA) is a change in law that requires reversal of our prior decision. Specifically, defendants claim that the second action is now barred by the statute of limitations because FAPA applies retroactively, and such law prohibits the reset of a statute of limitations by the unilateral act of a party such as by a de-acceleration letter. * * *

… [S]ince the second action was brought more than six years after plaintiff accelerated the debt, it is barred by the statute of limitations applicable to foreclosure actions … . Thus, defendants’ motion to renew is granted and this Court’s previous decision is vacated. On the merits of the underlying appeal, pursuant to FAPA, defendants were entitled to summary judgment dismissing the complaint. Accordingly, we affirm the judgment of Supreme Court, albeit on different grounds. HSBC Bank, USA, N.A. v Bresler, 2025 NY Slip Op 03363, Third Dept 6-5-25

Practice Point: Although the issue was not discussed in the Third Department’s decision, apparently CPLR 2221 [e] [2] applies to a motion for renewal of an appeal.

 

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HERE AN ARGUMENT RAISED FOR THE FIRST TIME IN PLAINTIFF’S REPLY PAPERS WAS DEEMED NOT PROPERLY BEFORE THE APPELLATE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-bank’s argument in this foreclosure action should not have been considered because it was raised for the first time in reply papers. In its reply, the plaintiff argued that the foreclosure action was not time-barred because defendant revived the statute of limitations by making payments within the six years prior to the commencement of the action:

[Plaintiff] failed to establish, prima facie, that this action was not time-barred. The plaintiff’s submissions revealed that the mortgage debt was accelerated in January 2007, when the plaintiff commenced the first prior action to foreclose the mortgage … . This action was commenced in July 2018, more than six years later. The plaintiff’s contention that payments the defendant made on the loan as late as September 2013 served to renew the statute of limitations, making this action timely, is not properly before this Court, as it was raised for the first time in reply papers submitted to the Supreme Court, and there is no indication that the defendant was afforded an opportunity to submit a surreply or that this new argument responded to allegations the defendant raised for the first time in his opposition papers … . Bank of N.Y. Mellon v Cooper, 2025 NY Slip Op 03297, Second Dept 6-4-25

Practice Point: Here the Second Department noted that an argument raised for the first time in reply papers was not properly before the appellate court. There was no indication sur-reply papers were submitted or that the reply-argument was a response to an issue raised by the other party.

 

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NOTHING IN DEFENDANT’S CRIMINAL HISTORY INVOLVED SUBSTANCE ABUSE OR WEAPONS; THEREFORE THE PROBATION CONDITION THAT DEFENDANT SUBMIT TO SEARCHES OF HIS PERSON, VEHICLE AND HOME WAS STRUCK (FIRST DEPT).

The First Department, striking a probation condition, determined (1) the requirement that defendant submit to warrantless searches of his person, vehicle and home was not appropriate, and (2) the challenge to the probation condition survived defendant’s waiver of appeal:

Defendant’s challenge to the condition of probation requiring that he consent to warrantless searches of his person, vehicle, and home survives the appeal waiver … . “Defendant was not under the influence of any substance or armed with a weapon when he committed the crime of which he was convicted, and he had no history of offenses involving substance abuse or weapons” … . Accordingly, the consent-search condition was not necessary to ensure that he will lead a law-abiding life ( … see Penal Law § 65.10[1]), or reasonably related to defendant’s rehabilitation (see Penal Law § 65.10[2][l]), rendering the condition improperly imposed … . People v Avila, 2025 NY Slip Op 03286, First Dept 6-3-25

Practice Point: Where a defendant’s criminal history does not involve drugs or weapons, requiring defendant to submit to warrantless searches as a condition of probation is not supported.

 

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MOTHER BROUGHT A MANDAMUS-TO-COMPEL PROCEEDING TO REQUIRE THE SUPPORT MAGISTRATE TO HOLD A SUPPORT-ORDER-VIOLATION HEARING WITHIN THE TIME-LIMIT SET IN THE UNIFORM RULES FOR FAMILY COURT; THE APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE BECAUSE THE ISSUE IS LIKELY TO RECUR; THE SECOND DEPARTMENT HELD THE SUPPORT MAGISTRATE HAD THE DISCRETION TO ADJOURN THE MATTER BEYOND THE DEADLINE SET IN THE UNIFORM RULES, DESPITE THE MANDATORY LANGUAGE IN THE RULE (SECOND DEPT).

The Second Department, modifying Supreme Court, determined an exception to the mootness doctrine applied (to allow the appeal to be heard) and the mandamus-to-compel proceeding should have been denied on the merits. Petitioner mother sought to compel the support magistrate to hold a hearing on father’s alleged support-order violation within the time allowed by the Uniform Rules for Family Court. The Appellate Division held that, although the relevant rule setting a deadline for a hearing used mandatory language, a judge has the discretion the adjourn matters beyond a deadline set in the Uniform Rules:

… [W]e conclude that the exception to the mootness doctrine applies. The petitioner has demonstrated that the issue is “capable of repetition” in other cases … . It also involves a phenomenon that will typically evade appellate review, since a Family Court can render any challenge to an alleged failure to adhere to the provisions of the rule academic by advancing a hearing date or completing a hearing in its entirety … , as occurred in this case … . Further, the argument raised by the petitioner presents “a substantial and novel issue of statewide importance regarding the rights of [custodial] parents” to resolve child support disputes in a timely manner … . * * *

… [W]e conclude that a writ of mandamus is not available to compel judicial officers to comply with the deadlines set forth in 22 NYCRR 205.43(b) and (e). As our colleagues in the First Department recognized, “[t]he timely completion of [child support] hearings depends on discretionary determinations made by individual Family Court judges and support magistrates as to whether good cause exists for adjournments” … . Indeed, the decision of a Family Court judge or support magistrate to grant an adjournment in a support proceeding is discretionary in nature (see Family Ct Act § 435 …). This Court, for example, has reversed orders in circumstances where a court’s denial of an adjournment request constituted an abuse or improvident exercise of discretion … . Further, the rule expressly states that judges and support magistrates may grant adjournments for various reasons, including to permit a party to secure counsel, in circumstances where a party’s counsel establishes actual engagement, due to the illness of a party, or for other good cause shown … . Therefore, “[a]lthough the 90-day limit” of 22 NYCRR 205.43(b) “is written in mandatory terms,” as is the 7-day limit of 22 NYCRR 205.43(e), these provisions do “not impose . . . nondiscretionary ministerial dut[ies]” upon judges or support magistrates that may be subject to mandamus … . In reaching this determination, we express no opinion as to whether a judicial officer’s alleged failure to adhere to the relevant provisions of 22 NYCRR 205.43 may be successfully challenged under provisions of CPLR article 78 that are not at issue here … . Matter of Santman v Satterthwaite, 2025 NY Slip Op 03196, Second Dept 5-28-25

Practice Point: Consult this decision for an explanation for when a moot issue can be heard on appeal.

Practice Point: Although the Uniform Rules for Family Court use mandatory language in setting a deadline for holding a hearing on an alleged violation of a support order, the support magistrate had the discretion to adjourn the hearing beyond the deadline set in the Rules.

 

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MOTHER’S APPEALS FROM EXPIRED PERMANENCY HEARING ORDERS (RE: CHILDREN’S PLACEMENT IN FOSTER CARE) WERE PROPERLY DISMISSED AS MOOT, TWO COMPREHENSIVE DISSENTING OPINIONS (THREE DISSENTING JUDGES) (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over two comprehensive dissenting opinions (three judges), determined the Appellate Division had properly dismissed mother’s appeals of expired permanency hearing orders (re: children’s placement in foster care) as moot, and properly declined to hear the appeals under an exception to the mootness doctrine:

Generally, ” ‘an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment’ ” … . Here, the Appellate Division properly determined that the mother’s appeals are moot. At the time the Appellate Division entered its decisions, both permanency hearing orders were “superseded by subsequent permanency hearing orders, which continued the child’s placement in foster care” … . * * *

… [T]he Appellate Division did not abuse its discretion in determining that the issues raised below were “not sufficiently substantial or novel to warrant an exercise of [its] exceptional discretion to retain the appeal despite mootness” … . Matter of Joshua J. (Tameka J.), 2025 NY Slip Op 03010, CtApp 5-20-25

Practice Point: Consult this opinion for concise explanations of the appellate mootness doctrine and the application of an exception to the mootness doctrine.

 

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THE JUDGMENT OF FORECLOSURE AND SALE WAS REVERSED ON APPEAL; THE DEFENDANT IN THE FORECLOSURE ACTION DID NOT SEEK A STAY PENDING APPEAL; THE FACT THAT THE NOTICE OF PENDENCY, FILED BY THE BANK AT THE OUTSET OF THE FORECLOSURE PROCEEDINGS, WAS STILL IN EFFECT AT THE TIME OF THE FORECLOSURE SALE DID NOT AFFECT THE TRANSFER OF TITLE TO A GOOD FAITH PURCHASER AT THE FORECLOSURE SALE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Brathwaite Nelson, determined the defendant in the foreclosure action, Yesmin, upon reversal of the judgment of foreclosure and sale on appeal, was not entitled to cancel and discharge the referee’s deed transferring title to a good faith purchaser of the foreclosed property. It is significant here that the defendant in the foreclosure action did not seek a stay pending appeal. The notice of pendency, filed by the bank in the foreclosure action, which was still in effect at the time of the foreclosure sale, did not affect the title acquired by the good faith purchaser:

This appeal raises the question of what effect an extant notice of pendency has on the title to real property acquired by a third party from a judicial foreclosure sale when the judgment of foreclosure and sale is reversed on the appeal of a defendant to the foreclosure action. For the reasons that follow, we hold that a notice of pendency that was unexpired at the time of the foreclosure sale has no effect on the title acquired by a good faith purchaser for value from a sale conducted pursuant to the judgment of foreclosure and sale. * * *

Once a judgment is entered, the need to obtain a stay pending appeal in order to protect the right to restitution of the property is shared equally by a defendant or a plaintiff against whom the judgment is entered. Where a judgment has been entered against a plaintiff, “the plaintiff’s right to impair the marketability of the property during the pendency of an appeal [is conditioned] upon the issuance of a discretionary CPLR 5519(c) stay” … . Thus, regardless of whether the judgment is issued in favor of a defendant or the plaintiff, once a judgment is entered, a stay is necessary to protect the property, and in the absence of a stay, the winning party is free to transfer the property as it sees fit. * * *

Since [the good faith purchaser of the foreclosed property] established that it is “a purchaser in good faith and for value” whose title would be affected by restitution of Yesmin’s property rights lost by the judgment of foreclosure and sale, Yesmin may not seek restitution by canceling the referee’s deed and, instead, is limited to monetary relief against the plaintiff to the foreclosure action (CPLR 5523 …). Yesmin v Aliobaba, LLC, 2025 NY Slip Op 02964, Second Dept 5-14-25

Practice Point: If the defendant in a foreclosure action which is appealed does not seek a stay pending appeal, the reversal on appeal does not affect title transferred to a good faith purchaser at the foreclosure sale.

 

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