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IN THIS RENT RESET ARBITRATION, THE UMPIRE COMMUNICATED DIRECTLY WITH LANDLORD’S COUNSEL, CREATING THE APPEARANCE OF IMPROPRIETY; THE AWARD WAS THEREFORE VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined communications between an umpire and the landlord’s counsel created the appearance of impropriety requiring the vacation of the arbitration award in the rent reset proceeding:

… [T]he tenants exercised their second extension option under the lease … . The parties attempted to negotiate a new annual net rent, but upon reaching an impasse, they proceeded to arbitration before the American Arbitration Association (the AAA). That arbitration concluded with a one-week hearing that resulted in a final award largely in the landlord’s favor. * * *

… [T]he umpire created an appearance of impropriety when he directly communicated with the landlord’s counsel about a paid offer to serve as a neutral umpire in the [another arbitration] and did so without including the tenants in the conversation. Further, the umpire’s subsequent attempt to remedy this issue with a disclosure to the tenants failed to cure his misconduct. Indeed, the disclosure was incomplete as it was the landlord’s counsel, not the umpire, who informed the tenants of the direct communication with the landlord’s counsel. To compound matters, the umpire then attempted to bargain with the tenants — offering to trade his rejection of the offer in exchange for the cooperative withdrawing its recusal application. Ultimately, although he did eventually decline the offer, the umpire’s actions irreversibly and improperly implicated the “integrity of the process” … . Matter of 57th & 6th Ground LLC v Carnegie House Tenants Corp., 2026 NY Slip Op 05230, First Dept 9-3-26

Practice Point: In this arbitration of a rent reset, the umpire communicated directly with landlord’s counsel, creating the appearance of impropriety. The award was therefore vacated.

 

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PURSUANT TO CPL 30.30(2)(A), THE 90-DAY SPEEDY TRIAL CLOCK DOES NOT COUNT DAYS WHEN DEFENDANT IS NOT IN CUSTODY; HERE DEFENDANT WAS INITIALLY INCARCERATED, RELASED ON BAIL, AND THEN INCARCERATED AGAIN; THE DAYS DURING WHICH DEFENDANT WAS OUT ON BAIL ARE NOT PART OF THE 90-DAY CALCULATION (SECOND DEPT)

The Second Department, in a full-fledged opinion by Justice Duffy, in a matter of first impression, determined the 90-day clock for a speedy trial violation pursuant to CPL 30.30(2)(a) includes only the days during which defendant was incarcerated. Here defendant was initially incarcerated, then released on bail when his girlfriend posted bail, and then incarcerated again when his girlfriend withdrew as the surety. Defendant’s total number of incarcerated days before the People were ready for trial was 80 days:

Counsel for the defendant contended, among other things, that the 31 days between September 9, 2024, and October 11, 2024, when the defendant was no longer in custody as he had posted bail did not qualify under CPL 30.30(3) or (4) as an exception to the 90-day readiness requirement and that, therefore, 117 days were chargeable to the People for the purposes of CPL 30.30(2)(a). According to counsel, since the People were not ready for trial within 90 days after the defendant was first in custody, the defendant was entitled to be released under CPL 30.30(2)(a). Counsel argued that there was no statutory basis for two different CPL 30.30 clocks or for resetting the clock to exclude the 31 days when he was out on bail.

In opposition, the People contended that the 31 days when the defendant was out on bail should be excluded from the calculation of time under CPL 30.30(2)(a). They contended, in sum and substance, that, upon the defendant’s return to custody in this case, the 90-day time clock under CPL 30.30(2)(a) for the People to be ready for trial reset and began again. The People argued, in the alternative, that the 31 days that the defendant was out on bail should be excluded from the 90-day calculation of readiness under CPL 30.30(2)(a). Thus, they contended that the time chargeable to the People was 80 days, plus 4 days that the Supreme Court charged to the People with respect to a challenge the defendant had made to the validity of the People’s COC, but that, since only 84 days were chargeable under CPL 30.30(2)(a), the People had declared their readiness for trial within the statute’s permissible time frame. * * *

Supreme Court correctly determined that the defendant was not unlawfully detained in violation of CPL 30.30(2)(a). Under the appropriate calculation, here, 20 days was chargeable to the People before the defendant was released on bail from his original custody. Thereafter, an additional 60 days were chargeable to the People for the time period preceding the People’s filing of the COC and the SOR, during which the defendant was again incarcerated. Thus, for the purposes of CPL 30.30(2)(a), 80 days were chargeable to the People under CPL 30.30(2). People ex rel. Liles v Richards, 2026 NY Slip Op 05191, Second Dept 9-2-26

Practice Point: Pursuant to CPL 30.30(a)(2), the 90-day speedy trial clock does not include days when defendant is not in custody. Here defendant was initially incarcerated, released on bail, then incarcerated again. Because the days when defendant was out on bail are not part of the calculation, the speedy trial statute was not violated.

 

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THE COMPLAINT ALLEGING A VIOLATION OF JUDICIARY LAW 487 WAS DISMISSED; IT WAS ALLEGED AN ATTORNEY WAS AWARE HIS CLIENT’S SLIP AND FALL WAS STAGED; THERE WAS A TWO-JUSTICE DISSENT (FIRST DEPT). ​

The First Department, dismissing the complaint, over a two-justice dissent, determined the allegations of a Judiciary Law violation and fraud against an attorney were insufficient. It was alleged the attorney proceeded with a slip and fall action despite knowledge that the accident was staged:

Defendants/third-party plaintiffs failed to demonstrate “a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of” [attorney] Roytblat, or demonstrate that deliberate misrepresentations necessary to sustain a Judiciary Law § 487 claim were made to defendants and the court …”.

From the dissent:

The third-party complaint adequately meets the heightened pleading standard for a claim under Judiciary Law § 487. It alleges that video evidence appears to show Wilson Pena, a third-party defendant who concededly performs investigative services for Roytblat, deliberately creating the sidewalk defect at issue in the underlying personal injury action. Plaintiff also appears in the video to feign a trip-and-fall accident caused by the defect. The video evidence, links to which were included in the third party complaint, supports this allegation. The complaint further alleges that defendants’ attorney informed Roytblat … that the underlying personal injury claim that Roytblat was pursuing was fraudulent, and that video evidence existed showing fabrication of the sidewalk defect and staging of the accident. Despite having knowledge of the fraud, Roytblat continued to pursue the litigation over the following months and sought to discontinue the action only when informed that a news report concerning the fraud was about to air. Salas v 711-715 E 231st St., LLC, 2026 NY Slip Op 05064, First Dept 8-20-26

Practice Point: Here is a rare example of a Judiciary Law section 487 cause of action alleging an attorney proceeded with a slip and fall case knowing the accident was staged. Those allegations were deemed insufficient and the complaint was dismissed.

 

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HERE THE COMPLAINT WAS DISMISSED BECAUSE COUNSEL REFUSED TO PROCEED WITH THE TRIAL ON A PARTICULAR DAY; THAT SINGLE INCIDENT DID NOT AMOUNT TO “NEGLECT TO PROSECUTE;” THEREFORE PLAINTIFF WAS ENTITLED TO THE SIX-MONTH EXTENSION FOR FILING A NEW COMPLAINT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that the timely-commenced slip and fall case was not dismissed for failure to prosecute and the default did not constitute a determination on the merits. Therefore plaintiff’s filing of a new complaint within six months of the dismissal was timely:

When a prior action was timely commenced and dismissed on grounds other than voluntarily discontinuance, lack of personal jurisdiction, neglect to prosecute, or the entry of a final judgment on the merits, “CPLR 205(a) effectively tolls the running of a statutory period to permit refiling within six months” of the termination of the prior action … . Here, it is not disputed that the first action was timely commenced and that this action was commenced within six months of its termination.

… [T]he first action was not dismissed for “neglect to prosecute” within the meaning of CPLR 205(a). Where the dismissal of a prior action was for neglect to prosecute, in order to serve as a bar to the savings provision of CPLR 205(a), the court must have “set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” … . Although the Supreme Court here set forth on the record that the plaintiff’s counsel had refused to proceed with the trial on one particular day, such conduct did not demonstrate a general “pattern” of delay in proceeding with the litigation so as to preclude application of CPLR 205(a) … .

Moreover, also contrary to the defendant’s contention, “dismissal of an action for a default pursuant to 22 NYCRR 202.27 does not constitute a determination on the merits” … . Thus, the six-month extension afforded by CPLR 205(a) was applicable, and the instant action was timely commenced. Rivera v Waterview Towers, Inc., 2026 NY Slip Op 05041, Second Dept 8-19-26

Practice Point: To constitute a dismissal for failure to prosecute, the judge must place on the record the specific conduct demonstrating a general pattern of delay. Here the complaint was dismissed because counsel refused to proceed to trial on a particular day. That was not a dismissal for “failure to prosecute” and the six-month extension for filing a new complaint was available.

 

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DEFENDANTS’ RELIANCE ON THEIR ATTORNEY’S STATEMENT HE WOULD HANDLE THE MATTER, THE FACT THAT THE SEVERELY INJURED INFANT PLAINTIFF, FOR WHOM DEFENDANTS WERE CARING, REQUIRED EXTRAORDINARY MEDICAL CARE AND FUNDRAISING, AND THE EXISTENCE OF A MERITORIOUS DEFENSE, WARRANTED GRANTING THE MOTION TO VACATE THE DEFAULT JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion to vacate the default judgment (CPLR 5015(a)(1)) should have been granted. Defendants were under the impression their attorney was handling the case, they had a valid reason for failing to be more proactive in dealing with their attorney, and they had a meritorious affirmative defense:

Here, the defendants claimed that, upon receiving notice of the action in August 2023, they each contacted their family attorney, with whom the grandmother and the family had an 18-year relationship, and who was representing the mother in a child support proceeding against the plaintiff. The family attorney agreed to handle this matter. In a series of text messages to the defendants, the family attorney gave the impression that he was handling the matter and again indicated that such was the case when he met the defendants in person in reference to the child support proceeding. …

During these proceedings, the defendants were caring for the infant, who had suffered a brain injury and had been in the intensive care unit for approximately two months and required machines to help her breathe. The infant’s care involved hyberbaric and stem cell treatments from doctors in Louisiana and Arizona and fundraising to pay for her care.

The defendants each hired their current attorneys and promptly moved to vacate the March 2024 [default] order, alleging that the defendants’ reliance upon the representations of the family attorney constituted a reasonable excuse for their default and further alleging … an affirmative defense … .

… [U]nder the particular circumstances of this case, the defendants’ conduct in relying upon the representations of the family attorney did not constitute willful default or neglect … . Further, the defendants’ responsibilities in caring for the infant provided a reasonable explanation for their failure to be more proactive in their dealings with the family attorney and in the management of this action … . Cross v Lee, 2026 NY Slip Op 04924, Second Dept 8-12-26

Practice Point: Here defendants’ reliance on their attorney’s assurances he was handling the matter, the severity of the infant plaintiff’s injuries (the defendants were caring for the infant), and the existence of a meritorious defense, warranted granting defendants’ motion to vacate the default judgment (CPLR 5051(a)(1)).

 

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IN THE FACE OF EVIDENCE PLAINTIFF DID NOT INTEND TO ABANDON THE ACTION, IT WAS AN ABUSE OF DISCRETION TO DISMISS THE COMPLAINT FOR FAILURE TO MEET THE DEADLINE FOR FILING A NOTE OF ISSUE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the dismissal of the complaint because plaintiff failed to timely file a note of issue was an abuse of discretion. Plaintiff had communicated with defendant within the 90-day period about discovery owed plaintiff. If defendant had complied with the discovery requests, plaintiff could have timely filed:

“[A] plaintiff [who] has been served with a 90-day notice pursuant to CPLR 3216(b)(3) . . . must comply with the notice by filing a note of issue or by moving, before the default date, either to vacate the 90-day notice or to extend the 90-day period” … . “In general, if a plaintiff fails to comply with the demand, to avoid the sanction of dismissal, the plaintiff is required to demonstrate a justifiable excuse for the delay and the existence of a potentially meritorious cause of action” … . However, CPLR 3216 is “extremely forgiving, and, [w]hile the statute prohibits the Supreme Court from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for his or her delay, and a meritorious cause of action[,] such a dual showing is not strictly necessary in order for the plaintiff to escape such a dismissal” … .

Here, there was no evidence that the defendant was prejudiced by the plaintiff’s delay in filing the note of issue after expiration of the 90-day period, that there was a pattern of persistent neglect and delay in prosecuting the action, or that there was any intent by the plaintiff to decline to proceed with discovery or otherwise abandon the action … . * * *

Had the defendant complied with either of the plaintiff’s first two emailed requests for outstanding discovery, the plaintiff could have timely filed the note of issue. This evidence negated any inference that the plaintiff intended to abandon the action and, inasmuch as the defendant contributed to the plaintiff’s inability to timely file a note of issue, the defendant’s assertion of prejudice from the delay was disingenuous … . Salik v Atlantis Operating, LLC, 2026 NY Slip Op 04970, Seccond Dept 8-12-26

Practice Point: CPLR 3216 is “extremely forgiving.” Here it was an abuse of discretion to dismiss the complaint for failure to meet the deadline for filing a note of issue.

 

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A CONSIDERABLE NUMBER OF DAYS DEVOTED TO MOTION PRACTICE SHOULD NOT HAVE BEEN CHARGED TO THE PEOPLE; DEFENDANT’S 30.30 SPEEDY-TRIAL MOTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s speedy trial (CPL 30.30) motion should have been denied because considerable time-periods should not have been charged to the People:

The court should have denied defendant’s CPL 30.30 motion to dismiss the indictment. The court should not have charged the People for the 98-day period during which codefendant delayed serving a copy of his omnibus motion on the People. This time is excludable as time attributed to “pretrial motions,” including “the period during which such matters are under consideration by the court” (CPL 30.30[4][a] …).

The court likewise should have excluded the 42-day period between the date of its decision on codefendant’s omnibus motion and the date on which the matter was adjourned for the People to file their certificate of compliance (COC) … . The People were entitled to “reasonable time to prepare for hearings and trial after the court’s rulings on [the co]defendant’s omnibus motion” … . People v Page, 2026 NY Slip Op 04823, First Dept 7-30-26

Practice Point: Here days related to defense motion practice and preparation for hearings precipitated by rulings on defense motions should not have been charged to the People in a “speedy trial” analysis.

 

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THE JUDGE DID NOT MAKE THE REQUISITE “SEARCHING INQUIRY” BEFORE ALLOWING DEFENDANT TO REPRESENT HIMSELF; DECISION RESERVED AND MATTER SENT BACK (FOURTH DEPT).

The Fourth Department, reserving decision on this appeal of the denial of a suppression motion, determined the trial judge did not conduct the requisite “searching inquiry” before allowing the defendant to represent himself:

As defendant contends and the People correctly concede, the court failed to conduct a sufficient inquiry into his request to represent himself. “[A]n application to proceed pro se must be denied unless defendant effectuates a knowing, voluntary and intelligent waiver of the right to counsel . . . To this end, trial courts must conduct a ‘searching inquiry’ to clarify that defendant understands the ramifications of such a decision” … . In other words, a “searching inquiry” is required to “warn defendant of the risks inherent in representing [themself]” and to “apprise [them] of the value of counsel” … , including that “going pro se would be ‘extraordinarily dangerous’ and ‘that most defendants who represent themselves are not successful’ ” … . “When a record lacks the requisite ‘searching inquiry’ or fails to measure up to the prescribed standards, a waiver of the right to counsel will be deemed ineffective” … .

Here, the court erred in allowing defendant to proceed pro se inasmuch as it did not “undertake a searching inquiry . . . to insur[e] that . . . defendant [was] aware of the dangers and disadvantages of proceeding without counsel” … . We conclude that “the tainted proceeding had an adverse impact on defendant” … and, therefore, we hold the case, reserve decision, and remit the matter to Supreme Court for further proceedings in accordance with our prior determination … . People v Ocasio, 2026 NY Slip Op 04595, Fourth Dept 7-24-26

Practice Point: Consult this decision for a discussion of the “searching inquiry” a judge must engage in before allowing a defendant to represent himself.

 

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PRESENTING THE GRAND JURY WITH EVIDENCE SUBSEQUENTLY RULED IRRELEVANT DID NOT AMOUNT TO PROSECUTORIAL MISCONDUCT WARRANTING DISMISSAL OF THE INDICTMENT (FOURTH DEPT). ​

The Fourth Department, in a full-fledged opinion by Justice Curran, reversing County Court, determined the prosecutor’s presentation of evidence to the grand jury which was subsequently ruled irrelevant did not amount to misconduct warranting dismissal of the indictment. Defendant drove his car at high speed in poor road conditions. The car left the road, crashed and burned. The two passengers were killed. Defendant was charged with criminally negligent homicide. Driving at a high speed in poor road conditions, without more, will not support criminally negligent homicide. The prosecutor presented evidence of a blood test which indicated defendant had used marijuana to meet the criteria for criminally negligent homicide. When County Court determined the marijuana evidence was irrelevant because there was no proof the marijuana-use affected defendant’s ability to operate the car, County Court dismissed the indictment. The Fourth Department found that the presentation of the irrelevant evidence was not “prosecutorial misconduct” which justified dismissal of the indictment:

… [W]e conclude that the court erred in granting defendant’s renewed motion on the ground that the grand jury proceedings were rendered defective due to prosecutorial misconduct. At the outset, it is worth noting what is not at issue here. Specifically, we note that there is no evidence in this case that the People, in introducing the cannabinoid evidence to the grand jury, intentionally engaged “in an over-all pattern of bias and misconduct” that was “pervasive” and “willful” (Thompson, 22 NY3d at 699 [internal quotation marks omitted]). There also is no evidence that, in introducing the challenged evidence, the prosecutor was “motivated by bias or a desire to deceive the grand jury” (id. at 706) or that there was any “nefarious design to deliberately cause unfairness to defendant” (People v Wisdom, 23 NY3d 970, 973 [2014]).

Rather, the court’s conclusion that the People had impaired the integrity of the grand jury proceedings through misconduct was predicated on its determination that the People had improperly introduced the cannabinoid evidence—evidence that was later found to be irrelevant. In so concluding, the court failed to explain how the People’s reliance on the allegedly flawed cannabinoid evidence met the dismissal standard set forth by the Court of Appeals in the aforementioned cases. Indeed, it is quite clear from those decisions that a mere error or flaw by a prosecutor in presenting evidence does not, in fact, meet the demanding test for establishing entitlement to dismissal due to the impairment of the integrity of the grand jury proceedings … . People v Stencel, 2026 NY Slip Op 04574, Fourth Dept 7-24-26

Practice Point: Consult this opinion for a discussion of the nature of prosecutorial misconduct at the grand jury stage which mandates dismissal of the indictment, not the case here.

 

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WHEN DEFENDANT TOLD THE JUDGE “MY LAWYER IS INEFFECTIVELY COUNSELING ME” THE JUDGE MADE NO INQUIRY INTO THE BASIS FOR THE STATEMENT AND SHUT DOWN ANY FURTHER STATEMENTS BY THE DEFENDANT; THE MAJORITY CONCLUDED THAT WAS REVERSIBLE ERROR; THERE WAS A DISSENT (FIRST DEPT).

The First Department, reversing the conviction and ordering a new trial, over a dissent, determined the judge’s failure to conduct any inquiry when defendant requested new counsel was reversible error:

A defendant may be entitled to new counsel “upon showing good cause for a substitution, such as a conflict of interest or other irreconcilable conflict with counsel … . The defendant’s request “may not be used merely to delay the orderly administration of justice” … . It must be supported by “specific factual allegations of serious complaints about counsel” … . Once the court determines that defendant’s request is not “merely to delay” but is “seemingly serious,” the court is required to make a minimal inquiry before exercising its discretion to grant or deny substitution of counsel … .

However, before the court can determine whether the defendant’s allegations are sufficiently serious to warrant minimal inquiry, it must at the very least allow the defendant the opportunity to make the allegations … . Thus, this Court has repeatedly held that a defendant is entitled to a new trial where the trial court “denied [a] request for new counsel without making any inquiry into the substance of his request, and without giving defendant any opportunity to explain the basis for his request” … . * * *

In this case, after jury selection was complete and as the jurors were about to enter the courtroom, defendant told the court, “I feel I’m not getting a fair trial. I’m not even prepared for a trial. My lawyer, my lawyer is ineffectively counseling me . . . . [a]nd also representing me.” The court responded that “You made your record” and “I’m not relieving your counsel. Don’t interrupt me.” Defendant tried to continue his request and stated, “I asked for a lab report. He gave me a field test.” The courtinterjected and instructed defendant to “not interrupt me” and warned that “[i]f you do this kind of behavior, particularly if the jury is here, it’s going to be a problem, okay. So just get yourself under control.” The court’s admonition effectively foreclosed any further discussion. People v Cooper, 2026 NY Slip Op 04561, First Dept 7-23-26

Practice Point: When a defendant tells the judge he is not being effectively represented by counsel, the judge should make at least a minimal inquiry. Here the failure to make any inquiry into the basis of defendant’s statement was deemed reversible error.

 

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