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IF A JUDGE DIRECTS THAT A PROPOSED JUDGMENT BE SETTLED OR SUBMITTED ON NOTICE, THE JUDGMENT MUST BE SUBMITTED FOR SIGNATURE WITHIN 60 DAYS OR THE MATTER WILL BE DEEMED ABANDONED PURSUANT TO 22 NYCRR 202.48; HERE, HOWEVER, THE JUDGE DID NOT DIRECT THAT THE PROPOSED JUDGMENT BE SUBMITTED ON NOTICE, SO 22 NYCRR 202.48 AND THE 60-DAY DEADLINE DID NOT APPLY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs did not abandon the action by failing to submit a proposed judgment within 60 days of the inquest awarding damages to plaintiffs after defendants’ default. The 60-day deadline is only triggered when a judge directs the order to be settled or submitted on notice, not the case here:

On January 26, 2022, after an inquest, the court awarded the plaintiffs $188,560 in damages as against both defendants. The plaintiffs did not submit a proposed judgment until November 2022.

Thereafter, the defendants moved, inter alia, pursuant to 22 NYCRR 202.48 to dismiss the complaint as abandoned. In an order dated April 29, 2024, the Supreme Court … granted that branch of the motion. …

“Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted” (22 NYCRR 202.48[a]; see Funk v Barry, 89 NY2d 364, 367 …). “Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown” (22 NYCRR 202.48[b]). “However, 22 NYCRR 202.48 does not apply where the court merely directs a party to submit an order or judgment without expressly directing that the order or judgment be submitted on notice” … . Here, since the Supreme Court did not direct that a judgment based on its decision after the inquest be settled or submitted on notice, the plaintiffs were not required to comply with 22 NYCRR 202.48 … . Rosenberg v Tool Time Constr. Corp., 2026 NY Slip Op 03192, Second Dept 5-20-26

Practice Point: If the judge does not direct that a proposed judgment be submitted on notice, 22 NYCRR 202.48, which requires that the judgment be submitted for signature within 60 days, does not apply.

 

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DEFENDANT’S AVERMENTS IN HER MOTION TO VACATE HER CONVICTION BY GUILTY PLEA WERE SUFFICIENT TO WARRANT HEARINGS ON WHETHER HER PARTICIPATION IN THE OFFENSE WAS THE RESULT OF HER BEING A VICTIM OF SEX TRAFFICKING AND WHETHER HER COUNSEL WAS INEFFECTIVE FOR FAILING TO INFORM HER OF THE DEPORTATION CONSEQUENCES OF HER PLEA (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on her motion to vacate the judgment of conviction. The motion to vacate argued defendant participated in the offense as a result of being a victim of sex trafficking within the meaning of CPL 440.10. In addition, defendant argued her counsel was ineffective in failing to inform her of the deportation consequences of her guilty plea:

…. [T]he defendant averred … that the underlying offense occurred within two to five years of her emigration to the United States, that she was initially hired to provide massages that did not require her to perform sex acts, and that after approximately two months, her boss moved her to another location and instructed her to perform sex acts on clients. The defendant further averred that she twice attempted to leave, but that each time her boss threatened to report the defendant’s activities to either her husband or the authorities. Moreover, in addition to her affidavit, the defendant submitted a letter from the Office of Temporary and Disability Assistance dated November 4, 2022, which stated that the defendant “me[t] the criteria for confirmation as a human trafficking victim in New York State.” Under these circumstances, the defendant’s allegations were sufficient to raise an issue of fact as to whether her participation in the offense underlying her conviction was the result of having been a victim of sex trafficking. * * *

The defendant’s averments, including that she feared for her safety if she returned to China, sufficiently alleged that a decision to reject the plea offer would have been rational … . Therefore, the defendant was also entitled to a hearing on that branch of her motion which was pursuant to CPL 440.10 to vacate the judgment on the ground that she was deprived of the effective assistance of counsel by her counsel’s allegedly erroneous advice regarding the immigration consequences of her plea … . People v L.F., 2026 NY Slip Op 03186, Second Dept 5-20-26

Practice Point: There are statutory grounds for vacation of a judgment of conviction because defendant’s participation in the offense was the result having been a victim of sex trafficking. (CPL 440.10).​

 

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EVEN IF DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, THE JUDGE SO INFORMED HIM AND HE ACKNOWEDGED THE CONSEQUENCES ON THE RECORD; THEREFORE DEFENDANT WAS UNABLE TO SHOW HE WAS PREJUDICED BY THE ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction by guilty plea on ineffective assistance grounds should have been denied. Even if defense counsel had failed to inform defendant of the deportation-consequences of his guilty plea, the defendant was made aware of them by the judge:

The defendant failed to establish, sufficiently to warrant an evidentiary hearing, that his counsel’s allegedly deficient advice deprived him of the effective assistance of counsel under either the federal or state constitutional standards … . It is clear from the record of the plea proceeding that prior to accepting the plea, the court advised the defendant that he may be subject to deportation as a result of his plea of guilty. The defendant acknowledged his understanding thereof and confirmed that he wished to plead guilty. Under the circumstances of this case, even if defense counsel had failed to advise the defendant of the possible immigration consequences of pleading guilty, the defendant was indisputably aware of those possible consequences before he entered his favorable plea … . Accordingly, the defendant cannot show prejudice resulting from defense counsel’s alleged failure to provide that advice himself … , and there is no reasonable probability that the defendant would not have pleaded guilty but for defense counsel’s alleged deficiency … .  People v Lewis, 2026 NY Slip Op 03001, Second Dept 5-13-26

Practice Point: Here defendant’s motion to vacate his conviction by guilty plea based upon ineffective assistance of counsel should have been denied without a hearing. Even if defense counsel was ineffective in failing to inform defendant of the deportation consequences of his plea, defendant was not prejudiced because the judge so informed him.

 

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THE DEFENDANT’S ATTORNEY IN THIS FORECLOSURE ACTION FILED A NOTICE OF APPEARANCE WHICH WAIVED ANY OBJECTION TO PERSONAL JURISDICTION; JUDGMENT OF FORECLOSURE REINSTATED (SECOND DEPT).

The Second Department, reversing Supreme Court and reinstating the judgment of foreclosure, determined that the defendant’s (the Church’s) attorney’s filing of a notice of appearance waived any objection to personal jurisdiction:

CPLR 5015(a)(4) provides in relevant part that “[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person . . . upon the ground of . . . lack of jurisdiction to render the judgment or order.” Under CPLR 5015(a)(4), a default must be vacated once lack of personal jurisdiction has been established … . “[T]he filing of a notice of appearance in an action by a party’s counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction” … . Here, since it is undisputed that Goodman filed a notice of appearance on behalf of the Church and that the Church failed, at that time, to file an answer raising the defense of lack of personal jurisdiction or to make a pre-answer motion to dismiss on that ground, the Church waived the defense of lack of personal jurisdiction … . There is no merit to the Church’s contention that a notice of appearance that is untimely filed does not confer personal jurisdiction over a defendant … . NYCTL 1998-2 Trust v Grace Christian Church, 2026 NY Slip Op 02995, Second Dept 5-13-26

Practice Point: A notice of appearance by defendant’s attorney which is accepted by plaintiff, even if the notice is “late,” waives any objection to personal jurisdiction.

 

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AFTER PLAINTIFF’S COUNSEL WITHDREW, THE JUDGE SET A DEADLINE FOR PLAINTIFF TO APPEAR WITH NEW COUNSEL; WHEN THE DEADLINE PASSED, THE JUDGE, SUA SPONTE, DISMISSED THE MEDICAL MALPRACTICE COMPLAINT; THE JUDGE DID NOT HAVE THE AUTHORITY FOR THE “SUA SPONTE” DISMISSAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge did not have the authority to, sua sponte, dismiss the complaint when plaintiff missed the court’s deadline for finding new counsel:

… [C]ounsel … moved for leave to withdraw as the plaintiff’s counsel. … Supreme Court, inter alia, granted the motion and directed that should the plaintiff fail to retain counsel by February 1, 2023, the complaint would be dismissed. Thereafter, in an order dated February 8, 2023, the court, upon the conditional order, sua sponte, directed dismissal of the complaint with prejudice. The plaintiff appeals.

“A court’s power to dismiss a complaint sua sponte is to be used sparingly, and only when extraordinary circumstances exist to warrant such a dismissal” … . Here, the Supreme Court was without authority, either pursuant to CPLR 3216 or 22 NYCRR 202.27 … , to direct dismissal of the complaint … . Under these circumstances, the court improperly, sua sponte, directed dismissal of the complaint .. . Dowd v Tischler, 2026 NY Slip Op 02968, Second Dept 5-13-26

Practice Point: Appellate courts don’t like “sua sponte” dismissals of complaints.

 

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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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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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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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DEFENDANT’S FUNDAMENTAL RIGHT TO BE PRESENT AT RESENTENCING WAS VIOLATED, DESPITE DEFENSE COUNSEL’S STATEMENT THAT DEFENDANT’S PRESENCE WAS NOT NECESSARY (THIRD DEPT).

The Third Department, remitting the matter for resentencing, determined defendant was denied his fundamental right to be present at resentencing. Defense counsel told the court defendant’s presence was not necessary:

… [A]s to defendant’s assertion that his fundamental right to be present at resentencing was violated, we agree. Here, County Court … received a letter from DOCCS informing the court that defendant’s two sentences of 2 to 4 years for the underlying grand larceny convictions were not in compliance with state law, and, therefore, an amendment was required. The record reflects that defendant was not produced at either the preceding conference or the resentencing proceeding. The record merely indicates that defense counsel stated, orally and in writing, that defendant’s presence was not necessary, yet there is no acknowledgment that defendant was even aware of the resentencing proceeding. As such, defendant’s fundamental right to be present at his resentencing was violated, and the matter must be remitted to County Court for resentencing on the grand larceny convictions (see CPL 380.40…). People v Cobbins, 2026 NY Slip Op 02695, Third Dept 4-30-26

Practice Point: A defendant has a fundamental right to be present at resentencing. The error need be preserved and survives defense counsel’s statement that defendant’s presence is not necessary.

 

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