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THE FACT THAT THE CHILD LIVED WITH THE GRANDMOTHER FOR FOUR YEARS WAS AN “EXTRAORDINARY CIRCUMSTANCE” WHICH AFFORDED GRANDMOTHER STANDING TO SEEK CUSTODY (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined grandmother had demonstrated “extraordinary circumstances” such that she had standing to seek custody:

… [T]he grandmother met her burden of demonstrating other extraordinary circumstances with respect to both the mother and the father. The Court of Appeals has explained that “[i]n the absence of ‘surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances’, a parent may not be denied custody” … . Consistent with that principle of law, we have determined that “an extended disruption of custody as defined in [the statute] is merely ‘a specific example of extraordinary circumstances’ . . . and the statute was ‘not intended to overrule existing case law relating to third parties obtaining standing in custody cases’ ” … .

In determining whether extraordinary circumstances exist, “[n]o one factor should be viewed in isolation . . . , but rather the ‘analysis must consider the cumulative effect of all issues present in a given case . . . , including, among others, the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the . . . parent allowed such custody to continue without trying to assume the primary parental role’ ” … .

Here, we conclude that there are ” ‘other like extraordinary circumstances’ ” that give the grandmother standing to seek custody of the child … . Extraordinary circumstances arise from the fact that the now-six-year-old child has resided exclusively with the grandmother since she was two years old, the mother was incapable of caring for the child due to mental illness, and the father has not been significantly involved in the child’s life since birth. The father has had limited and sporadic visitation with the child and has never had the child with him overnight. He has not attended school events or medical appointments. Nor has he paid child support to either the mother or the grandmother. Finally, the child is emotionally attached to the grandmother and her half-brother, who has also been raised by the grandmother … . Matter of Morris v Smith, 2025 NY Slip Op 07133, Fourth Dept 12-23-25

Practice Point: Consult this decision for insight into the “extraordinary circumstances” which will afford a nonparent standing to seek custody. Here the fact that the child had resided with grandmother for four years was deemed such an “extraordinary circumstance.”

 

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IT WAS AN ABUSE OF DISCRETION TO ORDER AN EVIDENTIARY HEARING IN THIS TOXIC TORT CASE; NO FRYE HEARING WAS NECESSARY BECAUSE THE EXPERTS DID NOT USE NOVEL OR EXPERIMENTAL METHODS; NO PARKER HEARING WAS NECESSARY BECAUSE GENERAL AND SPECIFIC CAUSATION WERE ADEQUATELY ADDRESSED IN THE EXPERTS’ SUBMISSIONS AND GENERALLY ACCEPTED METHODS WERE USED (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Ceresa, determined there was no need for a Frye hearing in this toxic tort case because none of the three experts used methods that were novel or experimental. In addition, there was no need for a Parker hearing because the expert’s used generally accepted methods to determine general and specific causation. Therefore ordering the evidentiary hearing was an abuse of discretion:

“The singular purpose of a Frye hearing is to ascertain the reliability of novel scientific evidence by determining whether the methods used to generate such evidence will, when properly performed, produce results accepted as reliable within the scientific community generally” … . ” ‘A court need not hold a Frye hearing where it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony’ ” … . “Absent a novel or experimental scientific theory, a Frye hearing is generally unwarranted” … . * * *

… [U]nder Parker, ” ‘[t]he focus moves from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of the evidence at trial.’ . . . [In toxic tort cases,] [i]t is well-established that an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)” (Parker v Mobil Oil Corp., 7 NY3d at 447-448 …). … [A] s plaintiffs’ [experts’] written submissions … offered the requisite causal links, there was no need for a hearing to determine whether these foundational standards were met. Marpe v Tonoga, Inc., 2025 NY Slip Op 07053, Third Dept 12-18-25

Practice Point: Consult this opinion for insight into when a Frye/Parker hearing is necessary to determine the admissibility of expert evidence in a toxic tort case. The evidentiary hearing had been ordered by the trial judge, but the Third Department held ordering the hearing was an abuse of discretion.

 

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UNDER THE LIEN LAW, THE GENERAL CONTRACTOR IN A FAILED SOLAR ENERGY PROJECT, AS TRUSTEE OF THE SETTLEMENT FUNDS, WAS PROPERLY PRECLUDED FROM USING THE FUNDS TO PAY ITSELF FIRST; THE SUBCONTRACTORS MUST BE PAID FIRST; THERE WAS A TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department, affirming Supreme Court, over a two-justice dissent, in a matter of first impression, determined the subcontractors’ motion to enjoin the general contractor from using settlement funds to pay itself for expenditures in a failed solar-energy project was properly granted. The Lien Law created a trust for the settlement funds and required the general contractor, as trustee, to pay the subcontractors before paying itself:

“Article 3-A of the Lien Law impresses with a trust any funds paid or payable to a contractor ‘under or in connection with a contract for an improvement of real property’ ” ( … Lien Law § 70 [1]). Given this statutory definition, we readily conclude that the settlement funds at issue constitute trust funds under Lien Law article 3-A … . The Court of Appeals has “repeatedly recognized that the primary purpose of [Lien Law] article 3-A . . . is to ensure that those who have directly expended labor and materials to improve real property . . . at the direction of the owner or a general contractor receive payment for the work actually performed” … . With respect to a contractor’s trust, the parties entitled to a beneficial status are expressly enumerated in Lien Law § 71 (2) (a)-(f) … Pursuant to Lien Law § 71 (2) (a), “[t]he trust assets of which a contractor . . . is trustee shall be held and applied for [enumerated] expenditures arising out of the improvement of real property,” including “payment of claims of subcontractors, architects, engineers, surveyors, laborers and materialmen” (Lien Law § 71 [2] [a] … ). The language is mandatory and does not include the “cost[s] of improvement,” which is a term specifically defined to address an owner’s costs (Lien Law § 2 [5]; see Lien §§ 70 [5]; 71 [1] …).  L.C. Whitford Co., Inc. v Babcock & Wilcox Solar Energy, Inc., 2025 NY Slip Op 07063, Third Dept 12-18-25

Practice Point: Under the Lien Law the general contractor here is the trustee of the settlement funds and must use the funds to pay the subcontractors before paying itself.

 

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ALTHOUGH PLAINTIFF MAY NOT HAVE INTENDED THE RELEASE TO APPLY TO A PENDING FALSE ARREST ACTION, THE PENDING ACTION WAS NOT LISTED IN THE RELEASE AS AN EXCLUSION AND IS THEREFORE PRECLUDED (CT APP).

The Court of Appeals determined that, even if plaintiff did not intend to release the city from the second false arrest action when he signed a release for the first false arrest action, the release must be enforced according to its plain language. The release had a section where any actions not intended to be encompassed by the release must be specifically identified and listed. Plaintiff, with counsel present, signed the release without listing the second false arrest action as an exclusion, so the release precluded the second action:

This Court has repeatedly made clear that “[i]f ‘the language of a release is clear and unambiguous, the signing of a release is a “jural act” binding on the parties’ ” … . “As with contracts generally, the courts must look to the language of a release—the words used by the parties—to determine their intent, resorting to extrinsic evidence only when the court concludes as a matter of law that the contract is ambiguous” … , or where such evidence establishes one of the ” ‘traditional bases for setting aside written agreements, namely, duress, illegality, fraud, or mutual mistake’ ” … . With respect to mutual mistake, a “high order of evidence is required” to overcome the ” ‘heavy presumption that a deliberately prepared and executed written instrument [manifests] the true intention of the parties’ ” … .

Here, the City established its prima facie entitlement to summary judgment based on the clear language of the release, and plaintiff failed to raise any triable question of fact in opposition. The City’s intent to secure a release from plaintiff of “any and all” claims is evidenced by the plain text of the document it transmitted for plaintiff’s signature. As the Appellate Division correctly held, there was nothing “surreptitious” about the way the release was drafted or transmitted … . Although plaintiff, who was represented by counsel, could have excluded this action from the release by the simple act of listing it in the space provided for that purpose, he signed the release without doing so, an objective manifestation of assent that is binding upon him notwithstanding any unilateral mistake or subsequent regret on his part … . Smith v City of New York, 2025 NY Slip Op 07081, CtApp 12-18-24

Practice Point: A release is strictly enforced according to its plain language. If a release includes a section where any exclusions from its reach must be listed, and that section is left blank, the release will preclude any other pending action, even where the failure to list a pending action was unintentional.

 

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THE ADMINISTRATIVE LAW JUDGE WENT AHEAD WITH THE DRIVER’S LICENSE REVOCATION HEARING IN THE ABSENCE OF THE OFFICERS WHO ARRESTED THE DRIVER FOR DWI; THE DRIVER’S ARGUMENT HE WAS DENIED DUE PROCESS BECAUSE HE WAS UNABLE TO CROSS-EXAMINE THE OFFICERS WAS REJECTED; THE DRIVER HAD SUBPOENAED THE OFFICERS BUT CHOSE NOT TO USE THE CPLR 2308 PROCEDURE FOR ENFORCEMENT OF THE SUBPOENAS; THE AVAILABILITY OF THE ENFORCEMENT PROCEDURE WAS DEEMED “SUFFICIENT PROCESS” (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Wilson, determined a driver, Monaghan, whose license was automatically suspended when he refused to submit to a chemical test at the time he was arrested for DWI, was not denied due process rights when the Department of Motor Vehicles (DMV) Administrative Law Judge (ALJ) revoked his license despite the arresting officers’ failure to appear at the revocation hearing. Monaghan had subpoenaed the officers and argued he was denied his right to cross-examine them. The Court of Appeal noted that Monaghan could have sought to enforce the subpoenas but chose not to. The Court found that the procedure for enforcement of subpoenas is not unduly burdensome. Therefore requiring Monaghan to use that procedure to exercise his right to cross-examine the officers does not amount to a denial of due process:

… [W]e reject the contention that Mr. Monaghan’s was deprived of his due process right to cross-examine the Troopers. His private interest in retaining his driver’s license and the government’s interest in public safety are both significant. The due process analysis, here, turns on the benefit and burden of requiring a motorist to seek judicial enforcement of a subpoena. Mr. Monaghan chose not to avail himself of the process set forth in CPLR 2308 (b). The process of applying to enforce a nonjudicial subpoena is not so unduly burdensome as to constitute a deprivation of due process of law. Our holding is consistent with appellate courts’ decisions rejecting due process challenges in other types of administrative proceedings where the petitioner has not attempted to enforce a subpoena … . It is undisputed that Mr. Monaghan did not seek enforcement, nor did he request an adjournment to do so. Matter of Monaghan v Schroeder, 2025 NY Slip Op 06959, CtApp 12-16-25

Practice Point: Here the officers who arrested the driver for DWI did not appear at the license revocation hearing. The driver argued his inability to cross-examine the officers deprived him of due process of law. However, the driver had subpoenaed the officers. He could have used the CPLR 2308 (b) procedure for enforcing the subpoenas but chose not to. The availability of the enforcement procedure was deemed sufficient process.

 

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HERE THE TOWN PASSED A LOCAL LAW REQUIRING THE CLOSURE OF A LANDFILL OWNED AND OPERATED BY SMI; BECAUSE SMI’S PROPERTY IS THE VERY SUBJECT OF THE LOCAL LAW, SMI NEED NOT DEMONSTRATE “ENVIRONMENTAL HARM” AS AN ELEMENT OF STANDING TO CHALLENGE THE TOWN’S STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) DECLARATION THAT THE CLOSURE OF THE LANDFILL WILL NOT HAVE A SIGNIFICANT ADVERSE ENVIRONMENTAL IMPACT; SMI HAS STANDING TO CHALLENGE THE TOWN’S NEGATIVE SEQRA DECLARATION ON THE GROUND THAT THE TOWN DID NOT TAKE THE REQUIRED “HARD LOOK” AT THE EVIDENCE BEFORE ISSUING THE NEGATIVE DECLARATION (CT APP). ​

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, determined the petitioner-plaintiff Seneca Meadows, Inc. (SMI), the owner and operator of a landfill, had standing to challenge the town’s State Environmental Quality Review Act (SEQRA) finding that the closure of the landfill pursuant to a Local Law would not have a significant adverse environmental impact. SMI argued the town did not take the required “hard look” at the evidence before issuing its negative SEQRA declaration:

“SEQRA is designed to promote efforts which will prevent or eliminate damage to the environment and enhance human and community resources . . . by injecting environmental considerations directly into governmental decision making; thus the statute mandates that social, economic and environmental factors shall be considered together in reaching decisions on proposed activities” … . Standing to sue under SEQRA, as with other statutory causes of action, requires that the plaintiff establish an injury-in-fact and that the in-fact injury fall within the zone of interest that the statute protects … . Thus, to sue under SEQRA, a plaintiff must ordinarily show that their injury falls within the statute’s environmental zone of interest by “demonstrat[ing] that it will suffer an injury that is environmental and not solely economic in nature” … .

However, [Matter of Har Enters. v Town of Brookhaven (74 NY2d 524 [1989])] established that “no such specific allegation [of environmental harm] is necessary” when the petitioner’s property is “the very subject” of the government’s action … . That case involved a rezoning of the petitioner’s property from commercial to residential use … . As the Court explained, “[i]t seems evident that if any party should be held to have a sufficient interest to object—without having to allege some specific harm—it is an owner of property which is the subject of a contemplated rezoning” … . Following that ruling, a few years later, the Court held in [Gernatt Asphalt Prods. v Town of Sardinia (87 NY2d 668 [1996])] that a landowner whose potential mining operations would be eliminated by rezoning was directly impacted by the governmental land use regulation and thus had standing under Har to challenge the government’s lack of compliance with SEQRA … . Matter of Seneca Meadows, Inc. v Town of Seneca Falls, 2025 NY Slip Op 06961, CtApp 12-16-25

Practice Point: When the petitioner’s property is the subject of the government’s action, the petitioner need not demonstrate “environmental harm” to have standing to challenge the government’s SEQRA declaration. Here the town passed a local law requiring closure of petitioner’s landfill. Petitioner need not demonstrate “environmental harm” to have standing to challenge the town’s SEQRA negative declaration on the ground the town did not take the required “hard look” at the evidence before finding that the landfill closure would not have a significant adverse environmental impact.

 

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FAMILY COURT ERRONEOUSLY DIRECTED SERVICE UPON MOTHER IN THIS MODIFICATION OF CUSTODY PROCEEDING “BY EMAIL” WHICH DOES NOT COMPLY WITH DOMESTIC RELATIONS LAW 75-G; ALLEGATIONS THAT MOTHER DESTROYED EVIDENCE OF SERVICE AND WAS AWARE OF THE PROCEEDINGS ARE IRRELEVANT; THE COURT NEVER ACQUIRED JURISDICTION OVER MOTHER (FIRST DEPT).

The First Department, reversing Family Court, determined the court never acquired jurisdiction over mother in this modification of custody proceeding. Father was directed to serve mother by email and by Initiating international service through the US Central Authority, a method not compliant with Domestic Relations Law 75-g:

That statute requires that notice be given by personal delivery or by any form of mail requesting a receipt and that the court may only direct an alternative form of service upon a finding that “service is impracticable” by personal delivery or by mail. However, the father’s motion papers contained no indication that personal service or service by any form of mail requesting a receipt was “impracticable” (Domestic Relations Law § 75-g[1][c]). Therefore, the Family Court erred in directing service by email and the court never acquired personal jurisdiction over the mother by the email service that was effectuated.

The father claims that the mother was personally served … . However, the record contains no affidavit of service on the mother. The father’s assertion in his brief that the mother destroyed evidence of service does not establish that lawful service was made, as it was his responsibility to prove that service was properly carried out in the first place … . Moreover, the fact that the mother became aware of the proceeding at some point … does not confer jurisdiction if there has not been compliance with the statutorily prescribed methods of service of process … . Matter of John F.B. v Maria U., 2025 NY Slip Op 06905, First Dept 12-11-25

Practice Point: Here father was directed by the court to serve mother by “email” which does not comply with Domestic Relations Law 75-g. The court never acquired jurisdiction over mother, despite her awareness of the proceedings.

 

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HERE SUPREME COURT CORRECTLY REFUSED TO VACATE THE DEFAULT JUDGMENT IN THIS PERSONAL INJURY CASE; BUT THE SECOND DEPARTMENT VACATED THE $385,000 INQUEST-JUDGMENT BECAUSE PLAINTIFF’S TESTIMONY DID NOT SUFFICIENTLY DEMONSTRATE THE EXTENT OF THE INJURIES (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined Supreme Court correctly denied defendant’s motion to vacate a default judgment in a personal injury case because she failed to provide a reasonable excuse. Plaintiff alleged he stepped in a hole on defendant’s property, twisted his foot and fell. But the $385,000 damages judgment was vacated by the Second Department because plaintiff’s testimony at the inquest was deemed insufficient to demonstrate the extent of the injuries. A new inquest was ordered:

… [A]lthough this Court is not relieving the defendant of her default, “[a]n unwarranted and excessive award after inquest will not be sustained, as to do otherwise ‘would be tantamount to granting the plaintiffs an open season at the expense of a defaulting defendant'” … . Here, the plaintiff’s vague testimony at the inquest was insufficient to determine to what extent the plaintiff’s injuries were attributable to the subject accident and, therefore, whether the amount awarded was warranted. Thus, under the circumstances of this case, the Supreme Court should have granted that branch of the defendant’s motion which was to vacate the judgment, and we remit the matter to the Supreme Court, Nassau County, for a new inquest on the issue of damages, and for the entry of an appropriate amended judgment thereafter … . Albano v Roehrig, 2025 NY Slip Op 06839, Second Dept 12-10-25

Practice Point: Despite losing a motion to vacate a default judgment, a defendant may still successfully move to vacate a judgment awarded after an inquest on the ground the evidence offered at the inquest did not sufficiently demonstrate the extent of the plaintiff’s injuries.

 

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WHEN THE JUDGE’S LAW CLERK SPOKE TO THE JURORS ABOUT A JURY NOTE WHILE THE JURORS WERE DELIBERATING, THE CLERK DISCUSSED CONCEPTS OF NEGLIGENCE, FAULT AND CERTAIN FACTS OF THE CASE; PLAINTIFFS’ MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new trial after a defense verdict, determined that the law clerk’s discussion with the jurors while they were deliberating, during which concepts of negligence and fault and certain facts were discussed, constituted interference with the deliberations and usurpation of the role of the court. The motion to set aside the verdict should have been granted:

Following the verdict, the plaintiffs moved pursuant to CPLR 4404(a) to set aside the jury verdict in favor of the defendant on the issue of liability in the interest of justice and for a new trial. In an affirmation in support of the motion, the plaintiffs’ counsel stated that he had learned, after the jury was discharged, that when the clerk went to speak to the jurors about writing the actual question on the form, the clerk improperly communicated with the jurors in a way that went beyond the Supreme Court’s instructions. In further support of their motion, the plaintiffs submitted an affidavit from a former juror (hereinafter the first juror) who averred, among other things, that the clerk had discussed with the jurors the concepts of negligence and fault, as well as certain facts about the case. The first juror averred that the clerk was in the jury room with the jurors for approximately three to five minutes, and that following that discussion, the jurors “did not feel it [was] necessary to submit further questions to the Court.” * * *

“A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise” … . “Litigants are entitled, as a matter of law, to a fair trial free from improper comments by counsel or the trial court” … . “The interest of justice thus requires a court to order a new trial where comments [have] deprived [a] party of a fair trial or unduly influenced a jury” … .

… [T]he clerk’s conduct cannot be found to be harmless. By offering opinions and/or explanations on the meaning of the legal concepts at issue in the trial, the clerk impermissibly interfered in the jury’s deliberations and usurped the role of the court to, in consultation with counsel, instruct the jurors on the law applicable to the facts. Saporito-Elliott v United Skates of Am., Inc., 2025 NY Slip Op 06886, Second Dept 12-10-25

Practice Point: The law clerk’s discussion with the deliberating jurors about concepts of negligence, fault and certain facts of the case interfered with the deliberations and usurped the role of the court. The verdict, therefore, must be set aside.

 

HERE THE SUBPOENAS SEEKING DISCOVERY FROM A NONPARTY WERE DEFECTIVE IN THAT THEY DID NOT EXPLAIN THE CIRCUMSTANCES OR REASONS FOR THE REQUESTED DISCLOSURE; THEREFORE THE MOTION TO QUASH THE SUBPOENAS SHOULD HAVE BEEN GRANTED WITHOUT ANY NEED ON THE PART OF THE MOVANT TO DEMONSTRATE THE SOUGHT DISCLOSURE IS IRRELEVANT OR FUTILE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the subpoenas seeking discovery from a nonparty were defective, therefore the motion to quash the subpoenas should have been granted:

Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty of “matter material and necessary in the prosecution or defense of an action” in possession of a nonparty, providing the nonparty is apprised of the “circumstances or reasons such disclosure is sought or required” … . “The notice requirement of CPLR 3101(a)(4) ‘obligates the subpoenaing party to state, either on the face of the subpoena or in a notice accompanying it, the circumstances or reasons such disclosure is sought or required'” … . “Once that is satisfied, it is then the burden of the person moving to quash a subpoena to establish either that the requested disclosure ‘is utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious'” … .

Here, the subpoenas were defective, since neither the subpoenas nor any accompanying documents set forth “the circumstances or reasons [the] disclosure is sought or required” (CPLR 3101[a][4] … . Ruppert v Ruppert, 2025 NY Slip Op 06884, Second Dept 12-10-25

Practice Point: A subpoena seeking disclosure from a nonparty must meet the requirements of CPLR 3101(a)(4) by including an explanation of the circumstances or reasons for the disclosure. If that information is not provided, the subpoena is defective and must be quashed on that ground.

 

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