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THE JUDGE SHOULD NOT HAVE, SUA SPONTE, TERMINATED THE LEASE BASED ON ALLEGED NONPAYMENT; AND THE JUDGE SHOULD NOT HAVE ISSUED A PRELIMINARY INJUNCTION WHICH GRANTED PLAINTIFF THE ULTIMATE RELIEF SOUGHT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, terminated the lease and should not have issued a preliminary injunction. Plaintiff alleged defendant breached the lease and sought to enjoin defendant from using the land pending the outcome of the litigation:

The Supreme Court erred in, sua sponte, declaring that the Lease Agreement terminated due to the defendant’s nonpayment of rent … . There was no motion for summary judgment before the court, and the court did not afford the parties notice of any intention to deem the plaintiff’s motion, inter alia, for leave to amend the complaint, as one, among other things, for summary judgment … .

… [A] preliminary injunction may not issue unless the moving party demonstrates a probability of success on the merits, a danger of irreparable injury in the absence of an injunction, and a balance of equities in that party’s favor … . The purpose of a preliminary injunction is to maintain the status quo pending a final determination in the action or proceeding … and “not to determine the ultimate rights of the parties” … . “[A]bsent extraordinary circumstances, a preliminary injunction will not issue where to do so would grant the movant the ultimate relief to which he or she would be entitled in a final judgment” … .

Here, the plaintiff “failed to demonstrate that the circumstances were of such an extraordinary nature to justify th[e] relief that was granted pending the resolution of the action” … . County of Nassau v NY Youth Sports Network, Inc., 2026 NY Slip Op 03289, Second Dept 5-27-26

Practice Point: The appellate courts do not like “sua sponte” actions by a judge. Here the judge terminated the lease based on nonpayment in the absence of any motion requesting that relief.

Practice Point: A preliminary injunction which grants the ultimate relief sought by the plaintiff should only rarely be issued. Here the circumstances did not justify such extraordinary relief.

 

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THE AGREEMENT WHICH PROMPTED DEFENDANT’S GUILTY PLEA WAS SUBSEQUENTLY DETERMINED TO BE ILLEGAL BECAUSE IT PROMISED PROBATION FOR A D FELONY; ONCE IT WAS CLEAR DEFENDANT MUST BE SENTENCED TO INCARCERATION, THE JUDGE GAVE THE DEFENDANT THE OPTION TO WITHDRAW HIS PLEA, WHICH HE DECLINED TO DO; SENTENCE AFFIRMED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge dissent, affirming the Appellate Division, determined defendant’s guilty plea should not be vacated. Defendant unsuccessfully argued that the plea agreement had not been honored by the prosecutor. The plea agreement was unenforceable because it called for an illegal sentence—probation for a D felony. Once it was clear defendant must be sentenced to incarceration, the judge gave defendant the option of withdrawing his guilty plea, which he declined to do. The opinion is fact-intensive and cannot be fairly summarized here. People v Flesch, 2026 NY Slip Op 03258, CtApp 5-26-26

 

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

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

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

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

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

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

 

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

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

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

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

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

 

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WHERE THE STATUTORY PRECONDITIONS FOR DISMISSAL OF A COMPLAINT FOR NEGLECT TO PROSECUTE (CPLR 3216) ARE NOT MET, THE COURT HAS NO AUTHORITY TO, SUA SPONTE, DISMISS THE ACTION; RATHER, THE ACTION MUST BE RESTORED TO THE ACTIVE CALENDAR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge did not have the authority to, sua sponte, dismiss the complaint for neglect to prosecute. At the time the purported 90-day notice was issued by the judge, issue had not yet been joined. In addition, the purported 90-day notice did not include all the information required by CPLR 3216(b):

“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” … . “[A] court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met” … . Here, the Supreme Court was without authority to issue a 90-day notice since issue was not joined in the action … .

In addition, “[p]ursuant to CPLR 3216(b), 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” … . Here, there is no evidence in the record that the plaintiff was served with a written demand as required by CPLR 3216. Moreover, the conditional order of dismissal, which, in effect, served as a 90-day notice pursuant to CPLR 3216, was defective in that it did not state that the plaintiff’s failure to comply with the demand would serve as a basis for the Supreme Court, on its own motion, to dismiss the action for failure to prosecute … . Further, the record demonstrates that no such motion was ever made, nor was there entry of an order of dismissal. Therefore, the action should have been restored to the active calendar without considering whether the plaintiff had a reasonable excuse for its delay in moving to vacate the conditional order of dismissal … . Deutsche Bank Natl. Trust Co. v Poyer, 2026 NY Slip Op 03145, Second Dept 5-20-26

Practice Point: An action cannot be dismissed by a judge, sua sponte, for failure to prosecute if (1) issue had not yet been joined, or (2) if all the statutory preconditions for dismissal pursuant to CPLR 3216 have not been met. Rather, the action must be restored to the active calendar.

 

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AN IN DEPTH ANALYSIS OF THE JURISDICTIONAL PRIORITY ISSUES RAISED IN A CUSTODY MATTER REGARDING A NAVAJO CHILD, BORN TO A NAVAJO MOTHER IN NEW MEXICO, LIVING ON THE NAVAJO NATION RESERVATION IN UTAH, WITH FATHER RESIDING IN NEW YORK (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mackey, grappled with the complex procedural and jurisdictional issues surrounding the custody of a Navajo child, born in New Mexico to a Navajo mother, living on the Navajo Nation reservation in Utah, and residing with father in New York. The issue is jurisdictional priority at the convergence of the Indian Child Welfare Act (ICWA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The opinion is far too complex to summarize here.  Matter of Kody II. v Shaunta JJ., 2026 NY Slip Op 03044, Third Dept 5-14-26

 

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HERE COUNTY COURT DID NOT OFFER ANY RATIONALE FOR EMPANELING AN ANONYMOUS JURY AND NONE IS APPARENT FROM THE RECORD; NEW TRIAL ORDERED (THIRD DEPT). ​

The Third Department, reversing defendant’s convictions and ordering a new trial, determined the judge should not have empaneled an anonymous jury:

We turn next to defendant’s argument that County Court erred by empaneling an anonymous jury — that is, by referring to prospective jurors “only by numbers and initials, with neither the attorneys nor [the] spectators knowing the jurors’ names.” On that, the record clearly bears out that County Court improperly empaneled an anonymous jury in clear violation of CPL former 270.15 … . However, acknowledging that no objection was raised before the trial court, defendant first argues that doing so constituted a mode of proceedings error. As we recently determined on two separate occasions, that contention is without merit … . We may nevertheless reach the issue as a matter of our discretion in the interest of justice (see CPL 470.15 [6] [a]). In assessing whether it is appropriate to do so, “we consider the totality of the circumstances, including the nature of the statutory violation, the explanation offered by the trial court and the potential for prejudice to the defendant” … ..

We agree with defendant’s contention that reversal is warranted based upon the totality of the circumstances. Although the empaneling of an anonymous jury may be appropriate under certain limited circumstances, where, as here, there is “no ‘factual predicate for the extraordinary procedure,’ ” to do so was error … . Indeed, there is no dispute that County Court failed to provide any rationale for doing so, and “[t]he record does not reflect any concern regarding juror safety, intimidation or interference, nor any circumstances that would otherwise warrant the use of an anonymous jury” … . Moreover, unlike those cases where defense counsel was made aware of the juror names … , the record is devoid of any indication that such occurred here, “which materially heightens the risk of prejudice” … . We therefore exercise our interest of justice jurisdiction, reverse and remit for a new trial. People v Zakrzewski, 2026 NY Slip Op 03029, Third Dept 5-14-26

Practice Point: Although improperly impaneling an anonymous jury is not a mode of proceedings error, and no objection was raised to the anonymous jury at trial, because there appears to have been no rationale for using an anonymous jury, the Third Department, in the interest of justice, reversed defendant’s convictions and ordered a new trial.

 

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THE JUDGE’S FAILURE TO MENTION THE POSTRELEASE SUPERVISION (PRS) COMPONENT OF THE SENTENCE RENDERS THE PLEA UNCONSTITUTIONAL; THE ISSUE NEED NOT BE PRESERVED (FIRST DEPT).

The First Department, vacating defendant’s plea, determined the judge never informed the defendant of the postrelease supervision (PRS) component of the sentence. The court noted that the issue may be raised for the first time on appeal. The issue need not be preserved by a motion to withdraw the plea or vacate the conviction:

The record does not establish that the court advised defendant when he pleaded guilty that the sentence would include a period of PRS. Consequently, the plea “cannot be deemed knowing, voluntary and intelligent” … , and it must be vacated.

Where a trial judge does not fulfill the obligation to advise a defendant of PRS during the plea allocution, “the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a post-allocution motion” … . The prosecution’s reference to its offer of PRS at the plea proceeding does not change this conclusion where the court itself never mentioned PRS at the plea proceeding … . Similarly, defendant’s failure to move to withdraw the plea or vacate the judgment of conviction does not bar him from raising the issue at this time. People v Ndiaye, 2026 NY Slip Op 03080, First Dept 5-14-26

Practice Point: A guilty plea is not “knowing, voluntary and intelligent” if the judge fails to mention the postrelease supervision (PRS) component of the sentence.

 

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

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

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

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

 

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UPON THE PRIOR APPEAL, THE SECOND DEPARTMENT MADE A FINDING THAT RESPONDENT SUFFERED FROM SEXUAL SADISM DISORDER AND REMITTED THE MATTER; SUPREME COURT IGNORED THE FINDING AND HELD A NEW NONJURY TRIAL ON ALL ISSUES; SUPREME COURT DID NOT HAVE THE AUTHORITY TO IGNORE THE SECOND DEPARTMENT’S MANDATE (SECOND DEPT).​

The Second Department, reversing Supreme Court, determined Supreme Court improperly ignored the terms of the Second Department’s remittitur. On the prior appeal, the Second Department held that the petitioner had proven respondent suffered from sexual sadism disorder. On remittal, however, Supreme Court held a new nonjury trial on all issues, including whether respondent suffered from sexual sadism disorder:

“A trial court, upon remittitur, lacks the power to deviate from the mandate of the higher court” … . Therefore, “an order or judgment entered on remittitur ‘must conform strictly to the remittitur'” … .

Here, as the determination of this Court in the January 2024 order is binding upon the Supreme Court … , the Supreme Court erred in, sua sponte, holding a nonjury trial on all issues and redetermining issues already determined by this Court … . Accordingly, the first May 2025 order must be reversed, and we remit the matter again to the Supreme Court, Kings County, for a new trial and determination as to whether the respondent’s diagnoses of ASPD, psychopathy, and sexual sadism disorder are sufficient to find that the respondent suffers from a mental abnormality as defined in Mental Hygiene Law § 10.03(i) … , and a dispositional hearing, if appropriate … . Matter of State of New York v Ezikiel R., 2026 NY Slip Op 02987, Second Dept 5-13-26

Practice Point: A trial court cannot deviate from the mandate of a higher court. Here the appellate court’s finding was ignored by Supreme Court upon remittal, requiring reversal and another remittal.

 

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