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WHERE A COURT’S DETERMINATION TO ENHANCE A DEFENDANT’S SENTENCE IS BASED SOLELY ON CALCULATIONS DRAWN FROM CERTIFIED PUBLIC RECORDS OF DEFENDANT’S PRIOR INCARCERATION, SENTENCE ENHANCEMENT CAN BE IMPOSED BY A JUDGE (AS OPPOSED TO A JURY) (FIRST DEPT).

The First Department, reversing Supreme Court, determined the question whether periods of incarceration which tolled the look-back period for enhancement of defendant’s sentence can be determined by a judge, as opposed to a jury:

The court granted defendant’s CPL 440.20 motion and concluded that the initial predicate statement was facially insufficient and that, pursuant to Erlinger [602 US 821], tolling determinations must be made by a jury. The court held that it could “neither determine, nor convene a jury to determine[,] that defendant was previously incarcerated at a particular time and place in an effort to enhance his sentencing.” * * *

​Defendant moved under CPL 440.20 to set aside the persistent violent felony offender sentence, arguing that the predicate felony statement was facially insufficient because it omitted periods of incarceration necessary to toll the statutory ten-year lookback period. Defendant contended that, under Erlinger, a jury was required to make the factual determination of whether any tolling finding would bring his prior conviction within the lookback window. * * *

As this Court found in People v Young (…2026 NY Slip Op 02883 […2026]), Erlinger does not apply to the tolling protocol contained in New York’s predicate felony sentencing statutes. These involve a “rote arithmetic calculation to be made based on certified public records” … . Such objective determinations fall within the narrow Almendarez-Torres exception permitting judicial determination of “the fact of a prior conviction” and associated ministerial facts such as dates.

… [T]he sentencing court erred in holding that tolling findings must be made by a jury and that it therefore could not sentence defendant as a persistent violent felony offender. As in Young, the tolling determination at issue required the court to review official admission and release records as well as calculate the periods during which defendant was confined. This administrative determination does not implicate the Sixth Amendment under Erlinger but rather falls within the Almendarez-Torres exception. People v Sabater, 2026 NY Slip Op 05459, First Dept 9-24-26

Practice Point: Where sentence enhancement is based solely on certified public records of prior incarceration, there is no requirement that a jury, as opposed to the judge, make the enhancement determination.

 

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THE CHARGES STEMMED FROM AN ARMED CONFRONTATION WITH POLICE OFFICERS; A PROSPECTIVE JUROR INDICATED SHE “WOULD PROBABLY RELATE TO THE POLICE OFFICERS;” THE DENIAL OF THE DEFENSE CHALLENGE TO THE JUROR REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT). ​

The Third Department, reversing the judgment of conviction and ordering a new trial, determined the defense challenge to a prospective juror should have been granted:

The trial evidence established that officers with the Hudson Police Department responded to a residence regarding a possible domestic incident. Upon their arrival, the officers announced themselves and knocked on the door for approximately five minutes before the door was eventually opened and they were permitted entry. Two officers entered the single-bedroom apartment while two others remained outside. One of the officers inside the apartment then came upon the bedroom where defendant was wielding a knife, which he had raised above his head in the direction of that officer. The officer, who was in uniform and visible to defendant, drew his service weapon and directed defendant to drop the knife multiple times before defendant ultimately did so. Defendant was then placed into custody with extreme difficulty. This chain of events was echoed by the three other officers present during the underlying events. * * *

After acknowledging close relationships with several individuals in law enforcement, the prospective juror expressed that, although she “would like to think [she] can be fair,” she “would probably relate to the [law enforcement] victims.” While “words like ‘think’ or ‘try’ are not talismanic words that automatically make a statement equivocal” … , the prospective juror continued that she “hope[d] that [she] could still be fair.” Altogether, these equivocal statements raised a clear question as to her ability to remain impartial and, therefore, could only be remedied by an unequivocal statement of impartiality … . However, when pressed by defense counsel as to whether she could be fair, the prospective juror failed to directly address the issue and, in fact, seemed to further express her own bias. County Court did not then attempt to rehabilitate the prospective juror … and, as a result, her prior statements of partiality were not remedied … . Under these circumstances we find disqualification to have been required. Thus, because defendant exhausted his peremptory challenges before jury selection was complete, a new trial is necessary … . People v Edmunds, 2026 NY Slip Op 05442, Third Dept 9-23-26

Practice Point: Consult this decision for insight into the inquiry required when a prospective juror indicates a bias in favor of law enforcement.

 

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PLAINTIFF BANK’S FAILURE TO MOVE FOR A JUDGMENT OF FORECLOSURE AND SALE AS DIRECTED IN A 2017 ORDER WAS NOT SUFFICIENT GROUNDS FOR THE COURT, SUA SPONTE, TO DISMISS THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff bank’s failure to move for a judgment of foreclosure and sale as directed by a 2017 order was not sufficient grounds for the court, sua sponte, to dismiss the complaint:

“‘A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal'” … . Here, the plaintiff’s failure to move for a judgment of foreclosure and sale as directed by the March 2017 order was not a sufficient ground upon which to, sua sponte, direct dismissal of the complaint … . Accordingly, the Supreme Court should have granted those branches of the plaintiff’s motion which were to vacate the August 2017 order and to restore the action to the active calendar. U.S. Bank, N.A. v Morrison, 2026 NY Slip Op 05346, Second Dept 9-16-26

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

Similar issue and result in Wilmington Sav. Fund Socy., FSB v Hilario, 2026 NY Slip Op 05351, Second Dept 9-16-26

 

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FALURE TO COMPLY WITH THE MODE OF SERVICE SPECIFIED IN AN ORDER TO SHOW CAUSE DEPRIVES THE COURT OF JURISDICTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not comply with the mode of service specified in the order to show cause and did not give proper notice of the motion. Therefore, Supreme Court was without jurisdiction to hear it:

The Supreme Court erred in granting the plaintiff’s motion for a preliminary injunction and to restore the action to the active calendar. The mode of service provided for in an order to show cause is jurisdictional in nature and must be literally followed … . The failure to give proper notice of a motion deprives the court of jurisdiction to hear the motion … . Here, since the plaintiff failed to comply with the directives in the order to show cause, the court was without jurisdiction to entertain the motion … . Sosa v Gonzaga, 2026 NY Slip Op 05337, Second Dept 9-16-26

Practice Point: A party’s failure to comply with the mode of service specified in an order to show cause deprives the court of jurisdiction to hear the motion.

 

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THE DESTRUCTION OF VIDEO EVIDENCE OF THE SLIP AND FALL WARRANTED A SANCTION; HOWEVER, IT WAS AN ABUSE OF DISCRETION TO PRECLUDE THE DEFENSE FROM PRESENTING ANY EVIDENCE RE: LIABILITY; AN ADVERSE INFERENCE CHARGE WITH RESPECT TO THE VIDEO EVIDENCE IS AN APPROPRIATE SANCTION (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the appropriate sanction for the destruction of the video which depicted the slip and fall was an adverse inference charge with respect to the video evidence, not the preclusion of all defense evidence re: liability:

During discovery, the defendants produced a video that was one minute and seven seconds in length and which depicted the moments shortly after the plaintiff’s fall. The premises’s superintendent testified that he recorded the video on his cell phone from the building’s surveillance footage on the day of the incident. The portion of the surveillance video that the superintendent recorded does not capture the moment of the fall itself or any time prior to the fall. * * *

Supreme Court properly determined that an imposition of spoliation sanctions against the defendants was warranted, as the defendants had an obligation to preserve the subject surveillance videos and were at least negligent in failing to preserve them, and the destroyed evidence was relevant to the plaintiff’s claim … . However, the court improvidently exercised its discretion in precluding the defendants from presenting any testimony, evidence, or defense as to their liability at trial. Instead, under the circumstances, the court should have directed that an adverse inference charge be given against the defendants at trial with respect to the video surveillance footage of the incident … . Alvarez v 100-10 67th Rd. Condominium, 2026 NY Slip Op 05261, Second Dept 9-16-26

Practice Point: Here video evidence of the slip and fall was destroyed warranting a sanction. Preclusion of all defense evidence re: liability was an abuse of discretion. An adverse inference jury instruction was appropriate.

Similar issues and results in Houghton v Piperaro, 2026 NY Slip Op 05290, Second Dept 9-16-26.

 

 

 

 

 

 

 

 

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IF THE LADDER DOESN’T MOVE AND PLAINTIFF LOSES HIS BALANCE AND FALLS, THERE IS NO LIABILITY UNDER LABOR LAW 240(1); BUT IF THE LADDER MOVES FOR NO APPARENT REASON LIABILITY ATTACHES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this ladder-fall case was entitled to summary judgment on the Labor Law 240(1) cause of action. The court clearly explained when Labor Law 240(1) liability is triggered by a fall from a ladder. Even if the ladder moves for no apparent reason, liability attaches:

“To establish a violation under Labor Law § 240(1), ‘[t]here must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff’s injuries'” … . “The collapse of a scaffold or ladder for no apparent reason while a plaintiff is engaged in an activity enumerated under the statute creates a presumption that the ladder or scaffold did not afford proper protection” … . “Where, for instance, the plaintiff falls from a ladder because the plaintiff lost his or her balance, and there is no evidence that the ladder was defective or inadequate, liability pursuant to Labor Law § 240(1) does not attach” … . “By contrast, where a ladder slides, shifts, tips over, or otherwise collapses for no apparent reason, the plaintiff has established a violation” … . Nunez v Trustees of Columbia Univ., 2026 NY Slip Op 05319, Second Dept 9-16-26

Practice Point: Consult this decision for a clear explanation of when Labor Liability 240(1) liability is triggered by a fall from a ladder.​

 

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THE CONDITIONAL ORDER OF DISMISSAL DID NOT MEET THE REQUIREMENTS OF A VALID 90-DAY NOTICE PURSUANT TO CPLR 3216(A); THEREFORE THE JUDGE COULD NOT, SUA SPONTE, DISMISS THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the conditional order of dismissal did not serve as a 90-day notice because it did not state that failure to comply with the notice will serve as a basis for dismissal for failure to prosecute. Therefore the judge did not have the authority, sua sponte, to dismiss the complaint:

“CPLR 3216 permits a court, on its own initiative, to dismiss an action for want of prosecution where certain conditions precedent have been complied with” … . As relevant here, an action cannot be dismissed pursuant to CPLR 3216(a) “‘unless a written demand is served upon the party against whom such relief is sought in accordance with the statutory requirements, along with a statement that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him [or her] for unreasonably neglecting to proceed'” … . “While a conditional order of dismissal may have the same effect as a valid 90-day notice pursuant to CPLR 3216” … , here, the conditional order of dismissal was defective in that it did not state that the plaintiff’s failure to comply with the notice will serve as a basis for a motion by the court to dismiss the complaint for failure to prosecute … . “In the absence of proper notice, the court was without power to dismiss the action for the plaintiff’s failure to comply with the conditional order of dismissal” … . Under these circumstances, the action should have been restored to the active calendar. Nationstar Mtge., LLC v Adekoje, 2026 NY Slip Op 05315. Second Dept 9-16-26

Practice Point: Although a conditional order of dismissal can serve as a valid 90-day notice pursuant to CPLR 3216, to do so the conditional order of dismissal must meet all the content requirements mandated by CPLR 3216, including informing the plaintiff that the failure to comply will result in dismissal of the complaint.

 

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THE DEFENSE MOTION TO SET ASIDE THE JURY VERDICT AND REINSTATE COUNTERCLAIMS SHOULD NOT HAVE BEEN GRANTED, CRITERIA EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, determined Supreme Court should not have reinstated defendants’ counterclaims which were rejected by the jury after a lengthy trial. The First Department explained the criteria for setting aside a jury verdict pursuant to CPLR 4404(a):

Defendants are not entitled to reinstatement of their counterclaims, which were each unequivocally rejected by the jury after a lengthy trial. Pursuant to CPLR 4404(a), a court may set aside a jury verdict, or order a new trial, where “the verdict is contrary to the weight of the evidence,” or “in the interest of justice.” In making this determination, the court must proceed with caution, because “in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict” … . Thus, a verdict should only be set aside if the evidence is so in favor of the moving party that the verdict “could not have been reached on any fair interpretation of the evidence” … , or in the interests of justice due to “errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise” … . Beach v Touradji Capital Mgt., LP, 2026 NY Slip Op 05231, First Dept 9-3-26

Practice Point: Consult this decision for insight into the criteria for setting aside a jury verdict. Here the jury’s rejection of defendants’ counterclaims should not have been disturbed.​

 

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ALTHOUGH SUPREME COURT DID NOT ABUSE ITS DISCRETION WHEN IT GRANTED THE PEOPLE’S MOTION TO PREVENT THE TRANSFER OF THE ADOLESCENT OFFENDER’S CASE TO FAMILY COURT, MITIGATING FACTS AND THE LEGISLATIVE PURPOSE UNDERLYING THE “RAISE THE AGE” LEGISLATION WARRANTED INVOCATION OF THE COURT’S “INTEREST OF JUSTICE” JURISDICTION AND DENIAL OF THE PEOPLE’S MOTION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Chan, reversing Supreme Court, over a two-justice dissent, held that Supreme Court did not abuse its discretion when it granted the People’s motion to prevent the transfer of the adolescent offender’s case to Family Court. On the “no abuse of discretion” question, the majority and the dissenters agreed. The majority, however, went on to invoke its “interest of justice” jurisdiction, based on mitigating facts and the underlying purpose of the “Raise the Age (RTA)” legislation, to deny the People’s motion and allow the transfer to Family Court:

… [D]efendant, then 17 years old, chased a young woman across a basketball court, grabbed her from the back while placing his arm around her neck, and eventually brought her to the ground….  As a result, the young woman suffered minor injuries. At no point, including at the time of his arrest, did defendant take out, display, use, or fire [the] gun [found in his fanny pack]. Nor did he otherwise threaten to do so. * * *

Under the RTA, prosecutions of adolescent offenders — defined as 16 or 17 year olds charged with a felony — are presumptively removable from the Youth Part of Supreme Court to Family Court (see CPL 722.10[1]; CPL 722.23[1], [2] …). The People can rebut that presumption if a defendant is charged with a class A nondrug felony or a violent felony, and the People prove, “by a preponderance of the evidence,” that defendant (1) “caused significant physical injury” during the commission of the offense, (2) “displayed a firearm, shotgun, rifle or deadly weapon” in “furtherance of” the offense, or (3) committed a sex offense (see CPL 722.23[2][c] …). “Otherwise, the case is removed to Family Court unless, upon a motion by the People, the [Y]outh [P]art determines that ‘extraordinary circumstances exist that should prevent the transfer of the action to’ Family Court” … . * * *

… [D]efendant shouldered caretaker responsibilities for his family, including assisting his mother during a difficult pregnancy and being a source of mentorship and support for his younger siblings. He participated avidly in sports teams and lessons. His maturity was importantly manifested by his demonstrated amenability to Family Court’s services. For example, defendant highlighted his improved school performance during the COVID-19 pandemic, his interest in pursuing vocational studies, and his successful graduation from the Exalt Youth program with perfect attendance and outstanding participation. …

In our view, these are precisely the types of facts that the legislators contemplated would support removal to Family Court … . People v Key, 2026 NY Slip Op 05234, First Dept 9-3-26

Practice Point: Consult this opinion for an in depth discussion of the purpose and implementation of the “Raise the Age” legislation which allows the transfer of adolescent offenders’ felony prosecutions to Family Court.

Practice Point: Here the majority and the dissenters agreed Supreme Court did not abuse its discretion when it granted the People’s motion to deny the transfer of the adolescent’s case to Family Court, but the majority went on to invoke its “interest of justice” jurisdiction to reverse, something the Court of Appeals would not have the power to do.

 

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HERE IN THIS FORECLOSURE ACTION, PLAINTIFF FILED A REQUEST FOR JUDICIAL INTERVENTION SEEKING A SETTLEMENT CONFERENCE WITHIN ONE YEAR OF DEFENDANT’S DEFAULT; THEREFORE PLAINTIFF NEED NOT PROVIDE A REASONABLE EXCUSE FOR THE DELAY OR DEMONSTRATE A MERITORIOUS CAUSE OF ACTION TO AVOID DISMISSAL FOR ABANDONMENT PURSUANT TO CPLR 3215(C); ANY FURTHER DELAYS AFTER THE REQUEST FOR JUDICIAL INTERVENTION ARE IRRELEVANT (SECOND DEPT).

The Second Department, reversing Supreme Court’s sua sponte dismissal of the complaint in this foreclosure action, determined plaintiff did not abandon the action because it filed a request for judicial intervention seeking a settlement conference within one year of defendant’s default:

Pursuant to CPLR 3215(c), “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed.” “To avoid dismissal pursuant to CPLR 3215(c), it is not necessary for a plaintiff to actually obtain a default judgment within one year of the default. Rather, as long as ‘proceedings’ are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal” … . The filing of a request for judicial intervention that seeks a residential mortgage foreclosure settlement conference as mandated by CPLR 3408 constitutes the taking of proceedings under CPLR 3215(c) … . * * *

Since the plaintiff demonstrated that it initiated proceedings for the entry of a judgment of foreclosure and sale within one year after [the] default, it was not required to proffer a reasonable excuse or demonstrate a potentially meritorious cause of action … . Furthermore, “once the plaintiff established that it had initiated proceedings for the entry of a judgment within one year after the defendants’ default, it was in compliance with CPLR 3215(c) and it was not required, under the plain language of that subdivision, to account for any additional periods of delay that may have occurred subsequent to the initial one-year period contemplated by CPLR 3215(c)” … . Aurora Loan Servs., LLC v Miller, 2026 NY Slip Op 05153, Second Dept 9-2-26

Practice Point: If, in a foreclosure action, plaintiff files a request for judicial intervention and a settlement conference within one year of defendant’s default, plaintiff need not provide an excuse for the delay or demonstrate a meritorious cause of action to avoid dismissal of the complaint as abandoned pursuant to CPLR 3215(c). Once proceedings have been taken within one year of default, any further delays after the taking of proceedings are irrelevant to any claim of abandonment.

 

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