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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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FATHER IN THIS CHILD SUPPORT MATTER WAS ESSENTIALLY FORCED TO PROCEED PRO SE BY THE SUPPORT MAGISTRATE IN VIOLATION OF FATHER’S RIGHT TO COUNSEL (SECOND DEPT).

The Second Department, reversing Family Court in this child-support matter, determined father was essentially forced to proceed pro se by the support magistrate, in violation of his right to counsel:

… [T]he Support Magistrate relieved the father’s assigned counsel upon the father’s request.

At the next proceeding … , the father appeared without counsel and indicated that he had not been assigned a new attorney. The Support Magistrate advised the father that a hearing on the mother’s violation petition was scheduled for that date and asked the father if he intended to “present a defense on [his] own, . . . not participat[e], or hir[e] an attorney.” After the father gave a nonresponsive answer, the Support Magistrate stated that “the Court will proceed on the [father’s] default.” The father again protested that he did not have an attorney. The Support Magistrate then found that the father “is choosing not to participate in the proceedings.” In an order of disposition … , the Support Magistrate found that the father willfully violated the prior order of child support. * * *

… [T]he record demonstrates that the father “did not wish to proceed pro se, but was forced to do so” … . At the proceeding on August 28, 2024, the father repeatedly protested that he did not have an attorney, and the Support Magistrate did not conduct an inquiry to determine whether the father was waiving his right to counsel or address the possibility of assigning new counsel to the father … . Moreover, although the Support Magistrate had previously cautioned the father against self-representation when the father’s former assigned counsel was relieved, the Support Magistrate at no point conducted a sufficiently searching inquiry to ensure that the father was knowingly, voluntarily, and intelligently waiving his right to counsel … . Matter of Baldwin v Peterkin, 2026 NY Slip Op 02647, Second Dept 4-29-26

Practice Point: Before allowing a party to proceed pro se, the judge or magistrate must conduct a searching inquiry to ensure the party is aware of the dangers. It is a constitutional violation to “force” a party to proceed without an attorney.

 

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ONLY THE CHIEF ADMINISTRATOR OF THE COURTS HAS THE POWER TO APPOINT CHIEF CLERKS AND DEPUTY CHIEF CLERKS OF THE SURROGATE’S COURTS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the Chief Administrator of the Courts, not the Surrogate’s Courts, has the power to appoint Chief Clerks and Deputy Chief Clerks of the Surrogate’s Courts:

Although the Chief Clerks and Deputy Chief Clerks of the Surrogates’ Courts possess significant authority, we agree with defendant that they are, nevertheless, nonjudicial officers. The Chief Clerks, for example, have the authority to sign papers or records of the courts, to adjourn matters, to administer oaths, to supervise disclosure and, in certain circumstances, to hear and report matters to the Surrogates (see SCPA 506 [6] [a]; 2609). Such responsibilities, however, are akin to those of referees (see SCPA 506; CPLR 4201), which are themselves “nonjudicial officers of the court appointed to assist it in the performance of its judicial functions” (… see generally CPLR 4312 [5] …). Thus, given the “nature of the position[s],” we agree with defendant that the Chief Clerks and Deputy Chief Clerks of the Surrogates’ Courts are nonjudicial positions and, “[a]s such, they are subject to the constitutional appointment power of the Chief Administrator, notwithstanding [article 26 of the Surrogate’s Court Procedure Act]. Since the appointment powers of the Chief Administrator flow from the State Constitution, they cannot be abrogated by statute” … . Mosey v Office of Ct. Admin., 2026 NY Slip Op 02538, Fourth Dept 4-24-24

 

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MOTHER ASKED TO REPRESENT HERSELF IN THIS CUSTODY PROCEEDING AND THEN DEFAULTED; THE ISSUE IS APPEALABLE DESPITE THE DEFAULT; THE JUDGE’S FAILURE TO CONDUCT A SEARCHING INQUIRY UPON MOTHER’S REQUEST TO REPRESENT HERSELF REQUIRED REMITTAL AND A NEW HEARING ON THE PETITION (FOURTH DEPT).

The Fourth Department, reversing Family Court and ordering a new custody hearing, determined Family Court did not conduct an adequate inquiry before accepting mother’s waiver of the right to counsel. The issue was appealable despite mother’s default:

At the mother’s initial appearance, Family Court advised the mother that she had the right to counsel, and the mother indicated that she planned to represent herself. The court scheduled a hearing on the petitions and warned the parties that, if a party failed to appear, the court would dismiss that party’s petition and proceed without the party. The mother failed to appear at the hearing, and the court noted her default and proceeded on the father’s petition. The mother now appeals from an order that, inter alia, dismissed her petition and awarded the parties joint custody of the children. * * *

 The “request by a party to waive the right to counsel and proceed pro se . . . places in issue whether the court fulfilled its obligation to ensure a valid waiver” and may be reviewed by this Court on an appeal by the subsequently defaulting pro se party … .

“[A] court’s decision to permit a party who is entitled to counsel to proceed pro se must be supported by a showing on the record of a knowing, voluntary and intelligent waiver of [the right to counsel]” … . “If a timely and unequivocal request [to proceed pro se] has been asserted, then the trial court is obligated to conduct a ‘searching inquiry’ to ensure that the [party’s] waiver is knowing, intelligent, and voluntary” … . Although “[a] ‘searching inquiry’ does not have to be made in a formulaic manner” … , “the record must demonstrate that the party was aware of the dangers and disadvantages of proceeding without counsel” … . Matter of Crespo v Wynn, 2026 NY Slip Op 02517, Fourth Dept 4-24-26

Practice Point: In a custody proceeding, before accepting a party’s request to represent herself, the court must conduct a searching inquiry to make sure the party understands the dangers and disadvantages. The issue is appealable despite a subsequent default.

 

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PLAINTIFF, AN EMERGENCY MEDICAL TECHNICIAN (EMT), AFTER A COMPLAINT MADE BY A PATIENT TO THE DEFENDANT DEPARTMENT OF HEALTH, WAS SERVED WITH A NOTICE OF HEARING AND A STATEMENT OF CHARGES INDICATING HIS EMT LICENSE COULD BE REVOKED; PLAINTIFF SOUGHT A DECLARATION HE WAS ENTITLED TO A JURY TRIAL PURSUANT TO THE US AND NY CONSTITUTIONS; SUPREME COURT AGREED BUT THE THIRD DEPARTMENT REVERSED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Mcshan, rejected plaintiff’s argument that he was entitled to a jury trial pursuant to the Seventh Amendment of the US Constitution, or, alternatively pursuant to Article I, section 2 of the NY Constitution. Plaintiff is an Emergency Medical Technician (EMT) who responded to a call that a man (the patient) had fallen and could not get up. According to a witness, plaintiff thought the patient was faking, ridiculed him and offered only minimal assistance. The patient submitted a complaint to the defendant (the Department of Health). The defendant served plaintiff with a notice of hearing and statement of charges indicating plaintiff may be subject fines and revocation of the EMT license. Plaintiff then sued defendant seeking a declaration that he was entitled to a jury trial:

The Seventh Amendment to the US Constitution preserves the right of trial by jury in suits at common law where the value of the controversy exceeds $20 (see US Const, 7th Amend). Longstanding precedent from the Supreme Court of the United States holds that the Seventh Amendment “applies only to proceedings in courts of the United States, and does not in any manner whatever govern or regulate trials by jury in state courts, or the standards which must be applied concerning the same” … . * * *

The NY Constitution provides that “[t]rial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever” (NY Const, art I, § 2). * * *

… [P]laintiff asserts that defendant, in essence, seeks to punish him for tortious conduct through the imposition of a civil penalty, which traditionally entailed a jury trial … . What plaintiff fails to directly confront, however, is that the nature of this proceeding is predicated on a violation of the statutory scheme that regulates plaintiff’s professional license and that the remedies sought are tethered thereto. … Specifically, Public Health Law article 30 places the responsibility on defendant to regulate the provision of emergency medical services in the state (see Public Health Law §§ 3000-3034) and, in furtherance of that responsibility, defendant has promulgated regulations governing the training, examination and licensing of EMTs … .Ball v New York State Dept. of Health, 2026 NY Slip Op 02494, Third Dept 4-23-26

Practice Point: Plaintiff, an EMT, after a complaint from a patient, was facing a Department of Health hearing at which his EMT license could be revoked. Plaintiff unsuccessfully sought a declaration that he was entitled to a jury trial pursuant to the Seventh Amendment of the US Constitution and Article I, section 2 of the NY Constitution.

 

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TO THE EXTENT VEHICLE AND TRAFFIC LAW SECTION 370 HAS BEEN INTERPRETED TO REQUIRE RENTAL-CAR COMPANIES TO PROVIDE PRIMARY LIABILITY INSURANCE COVERAGE TO RENTER-DRIVERS, SECTION 370 IS PREEMPTED BY THE FEDERAL “GRAVES AMENDMENT” (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, affirming the Appellate Division, over a three-judge dissent, determined the federal “Graves Amendment (49 USC 30106),” which relieves rental-car companies of vicarious liability for the negligence of the renter-drivers, preempts Vehicle and Traffic Law 370 to the extent that section 370 has been interpreted to require rental companies to provide primary liability insurance coverage to renters. But section 370’s requirement that rental-car companies carry a specified minimum amount of insurance is not preempted by the Graves Amendment:

The Appellate Division [held] that “the Graves Amendment does not supersede Vehicle and Traffic Law § 370 insofar as it is a state law that requires rental car companies to carry a specified minimum amount of insurance for each of their vehicles” but “is superseded to the extent it requires a rental car company to ‘provide primary insurance to their renters up to the minimum liability limits provided by the statute’ ” … . The Court reasoned that “[t]o hold otherwise would rescue every vicarious liability claim up to statutory minimum insurance amounts and render the Graves Amendment’s preemption clause a nullity” … . The Court further held that section 370 does not reverse preempt the Graves Amendment under the McCarran-Ferguson Act, because the Graves Amendment “does not entirely ‘invalidate, impair, or supersede’ ” section 370 … . * * *

We note that the Graves Amendment does not free car rental companies from all liability arising from the use of a rented vehicle. On the contrary, it expressly permits States to impose liability on rental companies for damages arising from their own negligence or criminal wrongdoing (see 49 USC § 30106 [a] [2]). Nor does the Graves Amendment restrict New York’s ability to require rental companies to obtain insurance, no matter what kind, “for the privilege of registering and operating a motor vehicle” (id. § 30106 [b] [1]). Our decision today does not affect section 370’s requirement that car rental companies obtain insurance coverage for such other liability or for the privilege of registering vehicles in New York. Rather, we narrowly hold that the Graves Amendment preempts Vehicle and Traffic Law § 370 to the extent that it requires car rental companies to provide primary liability insurance to their renters up to the statute’s minimum liability amounts. Second Child v Edge Auto, Inc., 2026 NY Slip Op 02436, CtApp 4-23-26

Practice Point: The interpretation of Vehicle and Traffic Law 370 which required rental-car companies to provide primary liability insurance to renter-drivers has been preempted by the federal “Graves Amendment.”​

 

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DEFENDANT’S 30.30 (“SPEEDY TRIAL”) MOTION WAS MADE ON THE DAY TRIAL WAS TO BEGIN; THE ARGUMENT THAT THE MOTION WAS UNTIMELY BECAUSE THE PEOPLE WERE STATUTORILY ENTITLED TO “REASONABLE NOTICE” WAS REJECTED; THE TRIAL JUDGE IS FREE TO ADJOURN THE TRIAL, OR PROCEED WITH THE TRIAL AND HEAR THE SPEEDY TRIAL MOTION SUBSEQUENTLY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the Appellate Division, determined defendant’s 30.30 (“speedy trial”) motion was timely made right before trial. The argument that bringing the motion right before trial violated the statutory provision that the motion be made upon “reasonable notice” to the People was rejected. Once the motion is made, the trial court can opt to proceed with the trial and determine the motion subsequently:

… [A] defendant seeking a dismissal based on a speedy trial violation may wish to accumulate as many chargeable days as possible. The facts here reinforce the wisdom of this approach. Defendant made his motion on the date trial was set to begin, eleven months after his arraignment, and alleged 326 days chargeable to the People. That motion contained 9 pages of detailed calculations of days and arguments about why each period should be charged to the People, including the days immediately leading up to the July 23 court date. The People for their part now claim that only 54 of those days were chargeable to them. In other words, every day counts—and many may be contested—in the speedy trial context, and the statute affords a defendant flexibility to decide when best in the time leading up to the start of trial to make a CPL 30.30 (1) (b) motion.

… [T]he People are entitled to a fair opportunity to prepare a response. * * * A court in receipt of such motion has discretion whether to proceed with trial and when to resolve the motion. While proceeding in this way may lead to inefficiencies … , such a result may in certain cases be necessary. The trial court is in the best position to determine when proceeding to trial is warranted to avoid inconvenience to witnesses and unnecessary delay. People v Roper, 2026 NY Slip Op 02365, CtApp 4-21-26

Practice Point: Here a 30.30 (speedy trial) motion was timely despite being made on the day of the trial. The argument that the motion was untimely because the “reasonable notice” provision in the statute was violated was rejected. The court can proceed with the trial and hear the motion later.​

 

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THE FOURTH TRIAL, AT WHICH DEFENDANT WAS CONVICTED OF MURDER AND WEAPON POSSESSION, TOOK PLACE THREE YEARS AFTER THE LAST OF THREE MISTRIALS; DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL; CHARGES DISMISSED (CT APP).

The Court of Appeals, dismissing defendant’s murder and weapon possession charges, in a full-fledged opinion by Judge Rivera, over the three-judge dissent, determined that the three-year delay between the third mistrial and the fourth trial violated defendant’s right to a speedy trial:

… [W]e conclude that the three-year delay to retry defendant a fourth time was unjustified and violated his constitutional right to a speedy trial. … “[W]hile the greater the delay, the more likely the harm to the defendant, there is no specific length of time that automatically results in a due process violation … . Here, the delay was lengthy—more than three years and one month between the third and fourth trials, and 36 months between the third trial and when the prosecution declared readiness for the fourth trial. … The delay is even more stark when compared to the dramatically shorter time between the prior trials: six months between the first and second trials and eleven months between the second and third trials.

The “reason for the delay” factor is critical. Thus, in cases involving post-indictment delays, the prosecution’s “good faith will not insulate their decision to delay trial from judicial review on constitutional speedy trial grounds” … . “[O]nce having instituted the prosecution . . ., [the prosecution has] the obligation of advancing it unless there is a reasonable ground for delay” … . By the time of the delay preceding the fourth trial, defendant had already been indicted and tried three times. That indictment remained pending throughout the three-year delay. Accordingly, the prosecution had the obligation of advancing its case in the absence of a reasonable justification … .

A lengthy delay “demands close scrutiny of the other factors, especially the question of why the delay occurred” … . Here, the prosecution’s justifications for the delay lack record support and in any case are not persuasive. The prosecution’s claim that the delay was attributable to its consideration of defense counsel’s request for dismissal after three mistrials cannot, without more, account for the three-year delay. The prosecution did not provide any particular reasons for why its deliberations of whether to retry defendant took so long given its failure to obtain a conviction three times in a row on the murder and weapon possession charges. Nor did the prosecution assert that an internal “changing of the guard” impacted its ability to render a decision on whether to retry the case. People v Woods, 2026 NY Slip Op 02364, CtApp 4-22-26

Practice Point: Here defendant was convicted of murder and weapon possession at his fourth trial, There was a three-year delay between the last mistrial and the fourth trial. The delay violated defendant’s speedy trial rights. The charges were dismissed by the Court of Appeals.

 

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PLAINTIFF SUED A CHURCH ALLEGING THE CHURCH HELD PROPERTY IN TRUST FOR PLAINTIFF AND THE CHURCH WRONGFULLY OUSTED PLAINTIFF FROM THE PROPERTY; RESOLUTION OF THE SUIT WOULD INVOLVE NEUTRAL PRINCIPLES OF LAW, NOT RELIGIOUS PRINCIPLES; THEREFORE, THE LAWSUIT WAS NOT PRECLUDED BY THE FIRST AMENDMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the lawsuit concerning ownership of church property was not precluded by the First Amendment because the suit could be decided by applying neutral principles of civil law, not religious principles:

The complaint alleged, among other things, that Synod held the church property in trust for the plaintiff, as the beneficial owner, and that Synod wrongfully ousted the plaintiff from the church property in March 2020 following a series of disputes between the plaintiff and Synod. Synod moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it, arguing, inter alia, that resolution of the causes of action requires review of ecclesiastical matters over which the Supreme Court lacked subject matter jurisdiction. …

“‘The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs'” … . “However, a court may resolve church property disputes ‘when the case can be decided solely upon the application of neutral principles of . . . law, without reference to any religious principle'” … . “‘The neutral principles of law approach requires courts to apply objective, well-established principles of secular law to the issues,’ and ‘[i]n doing so, courts may rely upon internal documents, such as a congregation’s bylaws, but only if those documents do not require interpretation of ecclesiastical doctrine'” … .

Here, contrary to Synod’s contention, it failed to demonstrate that the causes of action cannot be resolved solely upon the application of neutral principles of law, without reference to any religious principle … . Lutheran Church of the Risen Christ, Mo. Synod v Atlantic Dist. of the Lutheran Church Mo. Synod, 2026 NY Slip Op 02260, Second Dept 4-15-26

Practice Point: If a lawsuit against a church involves ownership of property and can be decided based on neutral principles of law (not religious principles) the suit is not precluded by the First Amendment and can be brought in state court.

 

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THE COUNTY CHARTER, WHICH PURPORTED TO ELIMINATE THE CONSTRUCTIVE-NOTICE THEORY OF LIABILITY FOR INJURY TO A BICYCLIST BY A DANGEROUS CONDITION IN A COUNTY ROAD, DID NOT SUPERSEDE THE HIGHWAY LAW; TO STATE A PRIMA FACIE CASE IN SUPPORT OF SUMMARY JUDGMENT, THE COUNTY MUST DEMONSTRATE BOTH A LACK OF WRITTEN NOTICE AND A LACK OF CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Golia, determined the county charter, which allowed the county to “opt out” of the constructive-notice provisions in the Highway Law, did not supersede the Highway Law. Plaintiff, a bicyclist, was injured when his bicycle struck a pothole on a county road. Supreme Court denied the county’s summary judgment motion which argued the county charter eliminated the constructive-notice theory of liability. The Second Department affirmed the denial and further held that the county was required to show both a lack of written notice and a lack of constructive notice of the dangerous condition to warrant summary judgment:

In an action to recover damages for personal injuries sustained in a bicycle accident, we are asked to determine whether the defendant, County of Suffolk, may enact legislation pursuant to the Municipal Home Rule Law that supersedes a New York State law. Specifically, the County contends that, through the enactment of Suffolk County Charter § C8-2(A)(2), it may supersede the provision of Highway Law § 139(2) that allows for an action to be maintained against a county, regardless of prior written notice, where the county had constructive notice of the alleged defective condition, pursuant to Municipal Home Rule Law § 10(1)(ii)(a)(5). We hold that Suffolk County Charter § C8-2(A)(2)(iii) contradicts Highway Law § 139(2) and, thus, the County may not, as it contends, “exercise [its] right to opt out” of the requirements of said statute. The County also contends that, in effect, even if constructive notice could be a theory of recovery in the instant action, the plaintiff bears the burden of establishing in the first instance that the County had constructive notice of the alleged defective condition. In other words, the County contends that its burden on this motion for summary judgment was only to show that it lacked prior written notice of the allegedly defective condition before the burden shifted to the plaintiff to demonstrate that the County had constructive notice of the condition. We hold, consistent with our precedent, that, when moving for summary judgment dismissing the complaint in cases invoking Highway Law § 139(2), the County must establish, prima facie, that it lacked both prior written notice and constructive notice of the alleged defective condition before the burden shifts to the plaintiff to raise a triable issue of fact in that regard or with regard to whether another exception applies. Romas v County of Suffolk, 2026 NY Slip Op 02142, Second Dept 4-8-26

Practice Point: A county charter provision which contradicts the New York State Highway Law does not supersede the provisions of the Highway Law.

 

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