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DEFENDANT WAS PROSECUTED AND CONVICTED BY A SPECIAL DISTRICT ATTORNEY WHO DID NOT MEET THE RESIDENCY REQUIREMENTS IN THE COUNTY LAW; THE ISSUE WAS RAISED FOR THE FIRST TIME ON APPEAL; THE INDICTMENT WAS PROPERLY DISMISSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, affirming the Fourth Department, determined the court was without authority to appoint a special district attorney who did not meet the residency requirements in the County Law. The defendant, who was convicted, raised the issue for the first time on direct appeal. The indictment was dismissed:

Defendant was charged in Orleans County with various counts of larceny based on allegations that he improperly sold a vehicle that was given to him for repairs and retained the proceeds. The Orleans County District Attorney moved to be disqualified from the case due to his relationship with the alleged victim. County Court granted the application and appointed a special district attorney pursuant to County Law § 701 (1) (a). That statute provides that when the district attorney is disqualified from acting in a particular case, “a superior criminal court in the county wherein the action is triable may . . . appoint some attorney at law having an office in or residing in the county, or any adjoining county, to act as special district attorney during the absence, inability or disqualification of the district attorney and such assistants as he or she may have.”

It is undisputed that the special district attorney did not have an office in or reside in Orleans County or any adjoining county and therefore did not satisfy the statute’s residency requirement. Although defendant received correspondence during the course of the prosecution that listed addresses for the special district attorney located in Erie County—which does not adjoin Orleans County—defendant did not challenge the special district attorney’s appointment or otherwise raise the issue before the trial court. After defendant was convicted, however, he raised the issue on direct appeal. The Appellate Division agreed with defendant that the court exceeded its authority by appointing a special district attorney who did not satisfy the residency requirement and dismissed the indictment on this ground … .  People v Callara, 2025 NY Slip Op 05739, CtApp 10-16-25

Practice Point: Here defendant was prosecuted and convicted by a special district attorney who did not meet the residency requirements in the County Law. The issue was first raised on appeal. The appellate court properly dismissed the indictment because the lower court did not have the authority to appoint a special district attorney in violation of the residency provisions of the County Law.

 

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DEFENDANT WAS NOT UNDULY PREJUDICED BY CODEFENDANT’S ATTORNEY’S SUMMATION-ARGUMENT THAT DEFENDANT WAS A SHOOTER AND THE CODEFENDANT WAS NOT; THE TRIAL EVIDENCE DID NOT POINT TO THAT CONCLUSION AND THE JURY WAS INSTRUCTED THAT SUMMATIONS ARE NOT EVIDENCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, affirming the Fourth Department, determined that the trial judge properly denied the defendant’s motion to sever the trials of the codefendants. The charges stemmed from a drive-by shooting in which two guns were fired. The trial evidence did not demonstrate defendant’s lack of involvement. In summation the codefendant’s attorney argued defendant was one of the shooters and the codefendant was not:

Where counsel for a codefendant essentially functioned as “a second prosecutor” and elicited damaging evidence against the defendant, we have held that severance was required based on the “compelling prejudice” to the defendant … . No similar degree of prejudice was created by codefendant’s closing argument here.

… [D]efendant raised the specter of a potential irreconcilable conflict between the defenses prior to trial, but apart from the comments made in summation, the defenses were remarkably consistent in their primary focus on discrediting the eyewitness. Although Bordies’ [the codefendant’s] argument that the evidence supported the conclusion that defendant was guilty was diametrically opposed to defendant’s claim of innocence, this type of discord emerging between codefendants only in summation did not rise to the level of an irreconcilable conflict for purposes of severance in these particular circumstances.

Moreover, the trial court properly instructed the jury that the attorneys’ arguments were not evidence and should not be considered as evidence when they judged the facts. That being so, and given that the jury is presumed to have followed the court’s instructions … , any conflict raised solely by counsel’s arguments could not have formed the basis of the jury’s verdict. In sum, there was no “undue” prejudice to defendant. People v Everson, 2025 NY Slip Op 05738, CtApp 10-16-25

Practice Point: Consult this opinion for insight into when the severance of codefendants’ trials is required and when it is not.

 

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A JUDGE CANNOT ORDER DISCOVERY IN A FOREIGN JURISDICTION WHICH IS A SIGNATORY TO THE HAGUE CONVENTION WITHOUT COMPLYING WITH THE REQUIREMENTS OF THE CONVENTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge should not have ordered discovery of a nonparty’s electronic devices in a foreign jurisdiction without complying with the Hague Convention. The nonparty, de Putron, resides in the island country of Jersey in the United Kingdom:

… Supreme Court improperly directed the discovery of de Putron’s electronic devices. First, “when discovery is sought from a nonparty in a foreign jurisdiction [that is a signatory to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters … , application of the . . . Convention . . . is virtually compulsory” … . An order directing discovery of such a party without complying with the Hague Convention is therefore an “improper assertion of power beyond the . . . Court’s jurisdiction” … . As it is undisputed that de Putron is a nonparty in a foreign jurisdiction that is a signatory to the Hague Convention, Supreme Court lacked the power to direct discovery of his electronic devices without complying with the Hague Convention. Dorilton Capital Mgt. LLC v Stilus LLC, 2025 NY Slip Op 05744, First Dept 10-16-25

Practice Point: Here discovery of a foreign nonparty’s electronic devices was improperly ordered by the judge. The country in which the nonparty resided was a signatory to the Hague Convention. Compliance with the Convention is a prerequisite to any discovery order.

 

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DEFENDANT DEFAULTED IN THIS CHILD VICTIMS ACT CASE ALLEGING HE SEXUALLY ABUSED PLAINTIFF; DEFENDANT SHOULD NOT HAVE BEEN ALLOWED TO DENY THE ABUSE IN THE DAMAGES TRIAL; NEW DAMAGES TRIAL ORDERED (SECOND DEPT). ​

The Second Department, ordering a new trial on damages, determined defendant, who had defaulted in this Child Victims Act case alleging sexual abuse of the plaintiff by the defendant, should not have been allowed to deny the abuse in the damages trial:

…Supreme Court erred in permitting the defendant to testify that the plaintiff’s allegations of sexual abuse were untrue and that he had never sexually abused the plaintiff. The testimony violated the court’s pretrial order expressly prohibiting such testimony. Moreover, a defaulting defendant “admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages” … . “Accordingly, at a trial to determine the amount of a plaintiff’s real damages, the defendant will not be allowed to introduce evidence tending to defeat the plaintiff’s cause of action” … . The defendant’s testimony denying the basic allegation of liability prejudiced a substantial right of the plaintiff, as that issue had been decided in her favor, and possibly affected the jury’s verdict on the issue of damages. Accordingly, the court should have granted the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages in the interest of justice and for a new trial on the issue of damages … . Reilly v Grieco, 2025 NY Slip Op 05711, Second Dept 10-15-25

Practice Point: Here defendant defaulted in this Child Victims Act case but was allowed to deny the abuse in the damages trial. That was error requiring an new trial on damages.

 

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ONE OF THE THREE DEFENDANTS, THE OWNER OF THE OTHER TWO, WAS NOT SHOWN TO BE LIABLE UNDER THE LABOR LAW; THEREFORE THE $10,000,000 PUNITIVE-DAMAGES JUDGMENT AGAINST THE OWNER SHOULD NOT HAVE BEEN AWARDED; NEW YORK DOES NOT RECOGNIZE AN INDEPENDENT CAUSE OF ACTION FOR PUNITIVE DAMAGES (SECOND DEPT).

The Second Department, reversing the $10,000,000 judgment for punitive damages in this Labor Law 220, 240(1) and 241(6) action, noted that New York does not recognize an independent cause of action for punitive damages. Summary judgment was granted against two defendants. but was denied with respect to Berger, the owner of the other two defendants. The jury was instructed to decide whether to award punitive damages based on Berger’s conduct and did so:

The plaintiff and his wife …, with leave of court, served an amended complaint to add a claim for punitive damages. The defendants answered the amended complaint, and the matter proceeded to a trial limited to the issue of damages. After both parties rested, the jury was instructed to decide whether to award punitive damages based upon conduct of Berger. The jury awarded the plaintiff and his wife punitive damages in the sum of $10,000,000, and the Supreme Court entered a judgment … in favor of the plaintiff and his wife and against the defendants … in the principal sum of $10,000,000 for punitive damages. The defendants appeal from that portion of the judgment.

“New York does not recognize an independent cause of action for punitive damages. Instead, ‘[a] demand or request for punitive damages is parasitic and possesses no viability absent its attachment to a substantive cause of action'” … . Here, the Supreme Court erroneously instructed the jury that the issue of Berger’s liability had already been determined against him, and the jury was not asked to consider Berger’s liability under the Labor Law or otherwise. Because Berger was never determined to be liable with respect to any substantive cause of action, no punitive damages could be awarded based upon his alleged conduct … . Petrosian v B & A Warehousing, Inc., 2025 NY Slip Op 05708, Second Dept 10-15-25

Practice Point: Here plaintiffs were awarded a $10,000,000 punitive-damages judgment against a defendant who was not determined to have been liable. New York does not recognize an independent cause of action for punitive damages. The punitive-damages judgment was therefore reversed.

 

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IT WAS A PROPER EXERCISE OF DISCRETION TO EXTEND THE DEADLINE FOR THE FORECLOSURE SALE DUE TO THE COVID PANDEMIC; HOWEVER IT WAS AN ABUSE OF DISCRETION TO DENY THE MOTION TO TOLL THE ACCRUAL OF INTEREST DURING THE DELAY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this foreclosure action, determined the deadline for the foreclosure sale mandated by RPAPL 1351 was properly extended due to the COVID pandemic, but the accumulation of interest during the delay should have been tolled:

… Supreme Court providently exercised its discretion in granting the plaintiff’s motion pursuant to CPLR 2004 to extend the time to conduct the foreclosure sale to the extent of extending the time to conduct the sale to 90 days from the date of the order … . The plaintiff demonstrated that “the delay [wa]s largely attributable to, among other things, . . . the COVID-19 pandemic” … . Further, the defendant failed to establish that the delay caused him any prejudice … .

“A foreclosure action is equitable in nature and triggers the equitable powers of the court” … . “Once equity is invoked, the court’s power is as broad as equity and justice require” … . Thus, “[i]n an action of an equitable nature, the recovery of interest is within the court’s discretion. The exercise of that discretion will be governed by the particular facts in each case, including any wrongful conduct by either party” … . “Further, a tolling and cancellation of interest may also be warranted where there is an unexplained delay in prosecution of a mortgage foreclosure action” … . “[A] plaintiff should not benefit financially, in the form of accrued interest, from an unexplained delay in the prosecution of a mortgage foreclosure action” … .

… Supreme Court improvidently exercised its discretion in denying the defendant’s cross-motion to toll the accrual of interest on the subject mortgage loan … . The plaintiff asserted that the COVID-19 pandemic impacted its ability to proceed with the sale of the property … . However, the pandemic-related stays on foreclosure sales did not go into effect until after the expiration of the 90-day deadline to conduct the sale of the property … , and the plaintiff failed to adequately explain its failure to conduct the sale within that 90-day period … . Under the circumstances presented, the court should have granted the defendant’s cross-motion to the extent of tolling the accrual of interest on the subject mortgage loan after February 17, 2020 … . M&T Bank v Givens, 2025 NY Slip Op 05677, Second Dept 10-15-25

Practice Point: A foreclosure is an equitable proceeding triggering the exercise of discretion by the the judge. Here the extension of the deadline for the foreclosure sale due to the COVID pandemic was a proper exercise of discretion, but the denial of the motion to toll the accrual of interest during the delay was an abuse of discretion.

 

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CONTRARY TO FAMILY COURT’S RULING, THE EVIDENCE SUPPORTED PARENTAL NEGLECT FINDINGS WITH RESPECT TO ALL THE CHILDREN FOR FAILURE TO PROVIDE MEDICAL AND DENTAL TREATMENT AND FAILURE TO ENSURE SCHOOL ATTENDANCE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence supported finding the parents neglected the children by failing to provide medical and dental care and failing to ensure school attendance:

A neglected child is defined, in relevant part, as a child less than 18 years of age “whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of [their] parent or other person legally responsible for [their] care to exercise a minimum degree of care . . . in supplying the child with adequate . . . education . . . , or medical[ or] dental . . . care, though financially able to do so or offered financial or other reasonable means to do so” (Family Ct Act § 1012 [f] [i] [A]). “The statute thus imposes two requirements for a finding of neglect, which must be established by a preponderance of the evidence . . . First, there must be proof of actual (or imminent danger of) physical, emotional or mental impairment to the child . . . Second, any impairment, actual or imminent, must be a consequence of the parent’s failure to exercise a minimum degree of parental care . . . This is an objective test that asks whether a reasonable and prudent parent [would] have so acted, or failed to act, under the circumstances” … .

… [T]he evidence of respondents’ ” ‘failure to follow through with necessary treatment for [Rocky M.’s] serious medical condition support[s] [a] finding of medical neglect” against them … . …[R]espondents’ failure to take Jemma M. to medical appointments for most of the first year of her life, particularly in light of her prematurity, condition and weight at birth, and subsequent developmental delays, caused impairment of her physical and emotional condition sufficient to support a finding of medical neglect with respect to her … . … [T]he evidence … , including medical records, establishes that respondents were financially able or had other reasonable means to provide adequate medical care … . The evidence further establishes that respondents neglected Cynthia M., Gwen M., Emmitt C. and Rocky M. by failing to provide adequate dental care … . … [P]etitioner presented unrebutted evidence of excessive school absences for Cynthia M., Gwen M., James M., and Emmitt C., which is sufficient to establish respondents’ educational neglect of those children … . Finally, we conclude that the evidence of neglect with respect to the aforementioned children “demonstrates such an impaired level of . . . judgment as to create a substantial risk of harm for any child in [respondents’] care,” thus warranting a finding of derivative neglect with respect to Nova M. and Trenton M. Matter of Cynthia M., 2025 NY Slip Op 05621, Fourth Dept 10-10-25

Practice Point: The parents’ failure to provide the children with medical and dental care, and the failure to ensure school attendance warranted neglect and derivative neglect findings with respect to all the children, criteria explained.

 

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THE JUDGE’S ASSESSING SORA RISK-LEVEL POINTS NOT REQUESTED BY THE PEOPLE VIOLATED DEFENDANT’S RIGHT TO DUE PROCESS OF LAW; THE JUDGE FAILED TO MAKE THE FINDINGS REQUIRED BY THE CORRECTION LAW FOR AN UPWARD DEPARTURE; DETERMINATION VACATED (FOURTH DEPT).

The Fourth Department, reversing the SORA risk level determination, held that the judge violated defendant’s right to due process of law by assessing points that were not requested by the People, and violated the Correction Law requirements for imposing an upward departure:

Although defendant failed to object to the assessment of points … when the court rendered its oral decision, we “review defendant’s contention in the interest of justice in light of the substantial infringement upon [her] due process and statutory rights” … .

… [T]he court failed to comply with the requirement of Correction Law § 168-n (3) that it set forth the findings of fact and conclusions of law upon which it based its decision to grant the People’s request for an upward departure … . In its decision, the court merely concluded, under the first part of the relevant three-part analysis, that the People had identified “aggravating . . . circumstances . . . of a kind or to a degree not adequately taken into account by the guidelines” … . At no time in its decision did the court render a determination on the other two parts of the relevant analysis. Rather, after identifying the aggravating circumstances, the court conclusorily granted the People’s application for an upward departure, without ever “weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant’s dangerousness and risk of sexual recidivism” … . People v Ridley, 2025 NY Slip Op 05599, Fourth Dept 10-10-25

Practice Point: If a judge assesses SORA risk-level points not requested by the People, the defendant’s due process rights are violated.

Practice Point: In granting an upward departure in a SORA risk-level-assessment proceeding, the judge must make the findings required by the Correction Law.

 

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ENGAGING IN COUNSELING SHOULD NOT BE A CONDITION OF VISITATION; THE COURT SHOULD NOT DELEGATE ITS AUTHORITY TO DETERMINE IF AND WHEN VISITATION SHOULD OCCUR TO A COUNSELOR (FOURTH DEPT). ​

The Fourth Department, modifying Family Court, determined father should not have been directed to engage in counseling as a condition of visitation Family Court shouild not have delegated its authority to the counselor to determine when visitation should resume:

It is well settled that ” ‘[a]lthough a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation’ ” … . In addition, a court may not give counselors “the authority to determine if and when visitation would occur” … . Matter of Johnson v Pritchard, 2025 NY Slip Op 05398, Fourth Dept 10-3-25

Practice Point: Engaging in counseling should not be a condition of visitation.

Practice Point: Family Court should not delegate its authority to decide if and when visitation should occur to a counselor.

 

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BASED UPON AN INTERPRETATION OF THE CLASS-ACTION SETTLEMENT AGREEMENT WHICH DID NOT SPECIFICALLY ADDRESS THE ISSUE, SUPREME COURT PROPERLY RULED THAT UNCLAIMED SETTLEMENT FUNDS CAN BE REDISTRIBUTED TO THE OTHER CLASS MEMBERS, REJECTING DEFENDANTS’ ARGUMENT THAT ANY UNCLAIMED FUNDS SHOULD BE RETURNED TO THEM (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Fisher, determined Supreme Court properly ruled that unclaimed checks payable to class members as part of a class action settlement can be redistributed to the other class members. The ruling was based upon an interpretation of the settlement agreement which did not specifically address the “unclaimed checks” issue. Defendants argued the unclaimed funds should be returned to them. The opinion is too fact-specific and detailed to fairly summarize here. O’Brien v Sagbolt LLC, 2025 NY Slip Op 05280, Third Dept 10-2-25

 

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