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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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AS PART OF A PLEA BARGAIN, THE JUDGE PROMISED TO ORDER DEFENDANT TO BE ENROLLED IN THE COMPREHENSIVE ALCOHOL AND SUBSTANCE ABUSE TREATMENT (CASAT) PROGRAM; BECAUSE DEFENDANT WAS NOT ELIGIBLE FOR THE PROGRAM, HIS MOTION TO VACATE HIS GUILTY PLEA SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing County Court, determined defendant’s motion to vacate his guilty plea should have been granted. The judge’s promise to order defendant to be enrolled in the CASAT (comprehensive alcohol and substance abuse treatment) program was central to defendant’s plea bargain. The program was not available to the defendant because he was not convicted of a drug-related offense:

… County Court promised to order him to be enrolled in CASAT, a promise that could not be fulfilled because CASAT is only available to individuals convicted of drug-related offenses (see Penal Law § 60.04 [6]). We agree. “A guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” … . Defendant was not enrolled in CASAT as he was not statutorily eligible for participation (see Penal Law § 60.04 [6] …), so the promise cannot be honored. Moreover, the record reflects that the mandate for CASAT enrollment was “part and parcel of defendant’s plea agreement” … . Thus, defendant is entitled to vacatur of his guilty plea … . People v Robinson, 2025 NY Slip Op 05125, Third Dept 9-25-25

Practice Point: Here defendant was promised, as part of a plea bargain, enrollment in the CASAT program. It turned out he was not eligible for the program. Because the program was “part and parcel of defendant’s plea agreement,” defendant was entitled to vacatur of his guilty plea.

 

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AN ATTORNEY SHOULD BE DISQUALIFIED UNDER THE ADVOCATE-WITNESS RULE WHEN THE ATTORNEY’S TESTIMONY IS NECESSARY TO PROVE ISSUES IN DISPUTE, NOT THE CASE HERE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the husband’s attorney, Smith, should not have been disqualified on the ground he would be called as a witness at trial. The appellate division determined Smith’s testimony was not relevant to the financial issues in the divorce action. Therefore Smith should not have been disqualified on the basis that his testimony would be necessary at trial:

The advocate-witness disqualification rules contained in the Code of Professional Responsibility provide guidance, but are not binding authority for courts in determining whether a party’s attorney should be disqualified during litigation … . “Disqualification of a law firm during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants. Disqualification denies a party’s right to representation by the attorney of its choice” … . In considering whether to disqualify counsel, the court must consider a litigant’s right to select his own counsel and the fairness and effect of disqualification in the particular factual setting … . Whether to disqualify an attorney rests in the sound discretion of the trial court … . However, an attorney should be disqualified only when his or her testimony is necessary to prove the issues in dispute … . The party seeking or supporting disqualification need not show that counsel’s continued representation would prejudice his or her client where the court finds that counsel’s testimony is necessary on his or her client’s behalf … . De Luca v De Luca, 2025 NY Slip Op 05146, First Dept 9-25-25

Practice Point: Here the proposed testimony by the attorney was not necessary to prove issues in dispute. Therefore the attorney should not have been disqualified.

 

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THE ISSUES OF NEGLIGENCE AND PROXIMATE CAUSE WERE NOT INTERTWINED; THE VERDICT FINDING DEFENDANT NEGLIGENT BUT THAT THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE INJURY SHOULD NOT HAVE BEEN SET ASIDE; IN RESPONSE TO A JURY NOTE, THE JUDGE PROPERLY TOLD THEM THEY COULD FIND THAT THE ACCIDENT DID NOT HAPPEN (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, reversing Supreme Court, determined the motion to set aside the verdict finding the defendant negligent but that the negligence was not the proximate cause of the accident should not have been set aside. The plaintiff alleged repair to the steering mechanism of his van was negligently done, that he suddenly lost the ability to steer the van and it crashed into a concrete barrier which was parallel to the roadway. The evidence was such that the jury could have found the accident did not happen in the way alleged by the plaintiff. The damage to the van did not appear to be consistent with the accident as described by plaintiff. When the jury sent a note asking whether they could find that the accident didn’t happen, the trial judge properly told them they could so find:

The narrow question we must address to determine this appeal is whether the Supreme Court properly, in effect, granted those branches of the plaintiff’s motion which were pursuant to CPLR 4404(a) to set aside so much of the jury verdict as, upon finding that the defendants were negligent, found that such negligence was not a substantial factor in causing injury to the plaintiff … . We answer this question in the negative, holding that the court erred by, in effect, granting those branches of the plaintiff’s motion where, as here, issues of negligence and proximate cause are not inextricably intertwined as a result of there being a rational view of the evidence that the plaintiff’s accident did not occur as claimed. Additionally, this appeal provides the opportunity to state our view that, in a personal injury action where there were questions about whether the alleged injury-producing event actually occurred as claimed by the plaintiff here, it was not error for the court to respond to a jury note by instructing that the jury could consider whether the alleged accident occurred. * * *

If, as the Supreme Court concluded in this instance, the jury’s deliberation involved an uncomplicated determination of whether the defendants had negligently installed the pitman arm of the plaintiff’s van, which, in turn, resulted in the plaintiff’s loss of steering and the accident as described, then the jury’s finding of negligence without a finding of proximate cause would be inconsistent. But the trial evidence was not so uncomplicated as to be subject to only one view of the events. Here, viewing the evidence in the light most favorable to the defendants, as we must in these instances, there was a valid line of reasoning and permissible inferences upon which the jury could parse the alleged negligent repair from the alleged proximate cause and determine that while the defendants were negligent, they were not a proximate cause of the plaintiff’s claimed accident … . Krohn v Schultz Ford Lincoln, Inc., 2025 NY Slip Op 05072, Second Dept 9-24-25

Practice Point: Here the jury concluded the defendant’s repair of plaintiff’s van was negligent, but they also concluded the negligence was not the proximate cause of the accident. That verdict should not have been set aside. The evidence was such that the jury could have found that the accident as described by the plaintiff didn’t happen. The judge properly instructed them in response to a note that they could so find.

 

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DEFENDANT AND A WITNESS SAID THE LIGHT WAS RED, PLAINTIFF SAID THE LIGHT WAS GREEN, SUMMARY JUDGMENT IS PRECLUDED, CREDIBILTY CANNOT BE CONSIDERED (FIRST DEPT).

The First Department, reversing Supreme Court in this intersection bicycle-vehicle accident case, reminds us that credibility plays no role in a summary judgment ruling. Plaintiff, the bicyclist, alleged he entered the intersection with a green light. Defendant and a witness alleged plaintiff entered the intersection against a red light. The conflicting evidence required denial of defendants’ motion for summary judgment:

The parties’ conflicting versions of how the accident occurred preclude summary judgment … . It is well settled that a “court’s role in deciding a motion for summary judgment is issue finding, not issue determination. . . . Moreover, [i]t is not the court’s function on a motion for summary judgment to assess credibility” … . Plaintiff’s version of events “is not incredible as a matter of law, and the different versions of the facts submitted by the parties raise[ ] credibility questions for a jury to resolve” … . Wachtel v Alan Joel Communications, Inc., 2025 NY Slip Op 05053, First Dept 9-23-25

Practice Point: Credibility plays no role at the summary judgment stage.

 

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RENEW THE MOTION TO DISMISS THE INDICTMENT WHEN ADDITIONAL GRAND JURY TESTIMONY WAS RELEASED TO THE DEFENSE BECAUSE THE JUDGE HAD REVIEWED THE ENTIRE GRAND JURY MINUTES BEFORE DENYING THE MOTION; TWO-JUSTICE DISSENT ARGUED THE MOTION COURT WOULD HAVE BENEFITTED FROM ANOTHER ARGUMENT BASED ON THE NEWLY RELEASED EVIDENCE (FIRST DEPT).

The First Department, affirming defendant’s conviction over a two-justice dissent, determined defense counsel was not ineffective for failing to renew the defense motion to dismiss the indictment after additional grand jury testimony was released. The majority concluded there was no new evidence to support a motion to renew because the judge reviewed all the grand jury testimony before denying the motion to dismiss. The dissenters argued there was insufficient evidence defendant shared the intent of the shooter and the motion court would have benefitted from another argument where defense counsel raised the newly released grand jury evidence:

“There can be no denial of effective assistance of counsel arising from counsel’s failure to make a motion or argument that has little or no chance of success” … . Defendant cannot demonstrate that a motion to renew would have had any likelihood of success because defendant had previously moved to dismiss the indictment and the court had denied the motion after conducting an in camera review of the grand jury minutes, which included the witness’s grand jury testimony that was subsequently provided to defendant’s counsel. Thus, the court had already determined that the evidence presented before the grand jury, including the witness’s testimony, established a legally sufficient prima facie case.

Moreover, a motion for renewal “must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made available to the court” … . Although the grand jury minutes were not available to defendant’s counsel at the time the motion to dismiss was filed, the court conducted a review of the complete grand jury minutes and then denied dismissal of the indictment. Consequently, there were no additional material facts upon which defendant’s counsel could have based a motion to renew, as the witness’s grand jury testimony was already known to the court in its entirety. Therefore, defendant’s counsel’s failure to file such a motion was insufficient to render his performance ineffective under both the state and federal standards … . People v Williams, 2025 NY Slip Op 05016, First Dept 9-18-25

Practice Point: Here the majority determined a motion to renew the motion to dismiss the indictment based on grand jury testimony released after the motion argument had little chance of success because the judge had reviewed all the grand jury evidence before denying the motion. The dissenters argued the judge would have benefitted from a second argument based on the newly released testimony, and therefore defense counsel was ineffective for failing move to renew.

 

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