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IN THE FACE OF EVIDENCE PLAINTIFF DID NOT INTEND TO ABANDON THE ACTION, IT WAS AN ABUSE OF DISCRETION TO DISMISS THE COMPLAINT FOR FAILURE TO MEET THE DEADLINE FOR FILING A NOTE OF ISSUE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the dismissal of the complaint because plaintiff failed to timely file a note of issue was an abuse of discretion. Plaintiff had communicated with defendant within the 90-day period about discovery owed plaintiff. If defendant had complied with the discovery requests, plaintiff could have timely filed:

“[A] plaintiff [who] has been served with a 90-day notice pursuant to CPLR 3216(b)(3) . . . must comply with the notice by filing a note of issue or by moving, before the default date, either to vacate the 90-day notice or to extend the 90-day period” … . “In general, if a plaintiff fails to comply with the demand, to avoid the sanction of dismissal, the plaintiff is required to demonstrate a justifiable excuse for the delay and the existence of a potentially meritorious cause of action” … . However, CPLR 3216 is “extremely forgiving, and, [w]hile the statute prohibits the Supreme Court from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for his or her delay, and a meritorious cause of action[,] such a dual showing is not strictly necessary in order for the plaintiff to escape such a dismissal” … .

Here, there was no evidence that the defendant was prejudiced by the plaintiff’s delay in filing the note of issue after expiration of the 90-day period, that there was a pattern of persistent neglect and delay in prosecuting the action, or that there was any intent by the plaintiff to decline to proceed with discovery or otherwise abandon the action … . * * *

Had the defendant complied with either of the plaintiff’s first two emailed requests for outstanding discovery, the plaintiff could have timely filed the note of issue. This evidence negated any inference that the plaintiff intended to abandon the action and, inasmuch as the defendant contributed to the plaintiff’s inability to timely file a note of issue, the defendant’s assertion of prejudice from the delay was disingenuous … . Salik v Atlantis Operating, LLC, 2026 NY Slip Op 04970, Seccond Dept 8-12-26

Practice Point: CPLR 3216 is “extremely forgiving.” Here it was an abuse of discretion to dismiss the complaint for failure to meet the deadline for filing a note of issue.

 

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THIS MATTER WAS SENT BACK FOR CONSIDERATION OF DEFENDANT’S YOUTHFUL OFFENDER STATUS; THE RULING ON REMAND DEMONSTRATED THE JUDGE WAS NOT AT ALL FAMILIAR WITH DEFENDANT’S CRIMINAL HISTORY AND WAS IN FACT MISTAKEN ABOUT IT; MATTER REMANDED AGAIN (FIRST DEPT).

he First Department, reversing Supreme Court’s ruling on remand to consider defendant’s youthful offender (YO) status, determined the judge was confused about defendant’s criminal history and in fact was mistaken about it  The case was remanded again:

In making a YO treatment determination, sentencing courts may consider “the gravity of the crime and manner in which it was committed, mitigating circumstances, defendant’s prior criminal record, prior acts of violence, recommendations in the presentence reports, defendant’s reputation, the level of cooperation with authorities, defendant’s attitude toward society and respect for the law, and the prospects for rehabilitation and hope for a future constructive life” … . While courts are not required to place their reasons for denying YO treatment on the record … , at minimum, YO consideration requires the court to have familiarity with the relevant facts and circumstances of the case before it (see CPL 720.20[1][a]).

Here, the sentencing court tracked the statutory language in denying defendant YO treatment. However, it is unclear whether the court was cognizant of the relevant facts and circumstances of defendant’s case to appropriately consider YO treatment, much less the Cruickshank factors (105 AD2d at 334).

At the very least, this record calls into question whether defendant was appropriately considered for YO treatment. The sentencing court’s confusion exposes that it was so unaware of the facts of the underlying offense that we cannot be sure it considered the mitigating factors specific to this defendant that might warrant YO treatment, i.e. that the instant offense is defendant’s first conviction, signaling that he is not a hardened criminal; defendant’s expressed remorse, despite acting in self-defense; the overt steps he has taken to lead a law-abiding life; or the lack of serious injuries to the victim. People v Marcus T., 2026 NY Slip Op 04913, First Dept 8-6-26

Practice Point: Courts need not place the reasons for denial of YO status on the record. But the court must be aware of the relevant facts and circumstance of the case. Here the judge demonstrated he did not know the defendant’s criminal history, requiring reversal.

 

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HERE DEFENDANT’S ANSWER WAS STRICKEN FOR DISCOVERY VIOLATIONS; AT THE INQUEST THE JUDGE SHOULD HAVE CONSIDERED ONLY DAMAGES; THE JUDGE ERRED BY CONSIDERING AN ISSUE WHICH WAS “ADMITTED” BY THE DEFENDANT BECAUSE THE ANSWER WAS STRICKEN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court should not have considered any substantive issues in this inquest to determine damages after the answer was stricken for failure to comply with discovery orders. Because the answer was stricken, defendant admitted all the traversable allegations in the complaint, including the issue the judge erroneously considered:

“‘A defendant whose answer is stricken as a result of a default admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages'” … . “The sole issue to be determined at the inquest is the extent of the damages sustained by the plaintiff, and the court may not consider the question of whether the defendant caused the damages sustained by the plaintiff” … . At an inquest, the plaintiff bears the burden of setting forth a prima facie case as to damages … .

Here, the Supreme Court erred in considering the question of whether the plaintiff signed a satisfaction of mortgage under duress. The defendant’s answer was stricken and as a result, the defendant admitted all traversable allegations in the amended complaint, including the allegation that the satisfaction of mortgage was signed under an implied threat of physical harm. The sole issue to be determined at the inquest was the extent of damages sustained by the plaintiff (see CPLR 3215[a] …). Sabella v Keora Realty, LLC, 2026 NY Slip Op 04884, Second Dept 8-5-26

Practice Point: When an answer is stricken every traversable allegation in the complaint is admitted by the defendant and the only remaining issue is damages.​

 

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A SORA COURT JUDGE HAS THE INHERENT POWER TO, SUA SPONTE, REOPEN A SORA HEARING TO CORRECT AN ERROR (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Dowling, joining the First and Fourth Departments, determined a judge has the authority to, sua sponte, reopen a SORA hearing to correct a mistake:

​Given the Supreme Court’s error, and considering the inherent power of a court to reconsider its own intermediate determinations, together with the overriding purposes and objectives of SORA, we find no wrong in the Supreme Court’s sua sponte correction of its initial failure to assess points under risk factors 3 and 5. There is no benefit to a defendant, the People, or the public in prohibiting a SORA court tasked with determining an offender’s presumptive risk level from, sua sponte, correcting its own erroneous determination … . People v Allen, 2026 NY Slip Op 04880, Second Dept 8-5-26

 

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A CONSIDERABLE NUMBER OF DAYS DEVOTED TO MOTION PRACTICE SHOULD NOT HAVE BEEN CHARGED TO THE PEOPLE; DEFENDANT’S 30.30 SPEEDY-TRIAL MOTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s speedy trial (CPL 30.30) motion should have been denied because considerable time-periods should not have been charged to the People:

The court should have denied defendant’s CPL 30.30 motion to dismiss the indictment. The court should not have charged the People for the 98-day period during which codefendant delayed serving a copy of his omnibus motion on the People. This time is excludable as time attributed to “pretrial motions,” including “the period during which such matters are under consideration by the court” (CPL 30.30[4][a] …).

The court likewise should have excluded the 42-day period between the date of its decision on codefendant’s omnibus motion and the date on which the matter was adjourned for the People to file their certificate of compliance (COC) … . The People were entitled to “reasonable time to prepare for hearings and trial after the court’s rulings on [the co]defendant’s omnibus motion” … . People v Page, 2026 NY Slip Op 04823, First Dept 7-30-26

Practice Point: Here days related to defense motion practice and preparation for hearings precipitated by rulings on defense motions should not have been charged to the People in a “speedy trial” analysis.

 

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THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT WHEN PLAINTIFF FAILED TO MEET A DEADLINE FOR A DEPOSITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the complaint when plaintiff failed to meet a deadline for a deposition:

“Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading . . . , where a party refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” … . “[T]he drastic remedy of striking a pleading . . . pursuant to CPLR 3126 should not be imposed absent a clear showing that the failure to comply with discovery demands or orders was willful and contumacious” … . Further, due process generally requires “notice and an opportunity to be heard before a court may impose such drastic remedies for discovery noncompliance” … .

Here, the plaintiff was not given adequate notice and opportunity to be heard prior to imposition of the drastic sanction of dismissal of the complaint, “including on facts relevant to whether the plaintiff’s noncompliance was willful and contumacious” … . The defendants did not move for sanctions pursuant to CPLR 3126 due to the plaintiff’s failure to appear for his deposition, nor did the Supreme Court make its own motion or include language in any prior order warning that noncompliance would result in sanctions … . Winchcombe v Ridgeline Constr. Corp., 2026 NY Slip Op 04794, Second Dept 7-29-26

Practice Point: The appellate courts do not like sua sponte dismissals of complaints without notice or an opportunity to be heard.

 

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THE JUDGE DID NOT MAKE THE REQUISITE “SEARCHING INQUIRY” BEFORE ALLOWING DEFENDANT TO REPRESENT HIMSELF; DECISION RESERVED AND MATTER SENT BACK (FOURTH DEPT).

The Fourth Department, reserving decision on this appeal of the denial of a suppression motion, determined the trial judge did not conduct the requisite “searching inquiry” before allowing the defendant to represent himself:

As defendant contends and the People correctly concede, the court failed to conduct a sufficient inquiry into his request to represent himself. “[A]n application to proceed pro se must be denied unless defendant effectuates a knowing, voluntary and intelligent waiver of the right to counsel . . . To this end, trial courts must conduct a ‘searching inquiry’ to clarify that defendant understands the ramifications of such a decision” … . In other words, a “searching inquiry” is required to “warn defendant of the risks inherent in representing [themself]” and to “apprise [them] of the value of counsel” … , including that “going pro se would be ‘extraordinarily dangerous’ and ‘that most defendants who represent themselves are not successful’ ” … . “When a record lacks the requisite ‘searching inquiry’ or fails to measure up to the prescribed standards, a waiver of the right to counsel will be deemed ineffective” … .

Here, the court erred in allowing defendant to proceed pro se inasmuch as it did not “undertake a searching inquiry . . . to insur[e] that . . . defendant [was] aware of the dangers and disadvantages of proceeding without counsel” … . We conclude that “the tainted proceeding had an adverse impact on defendant” … and, therefore, we hold the case, reserve decision, and remit the matter to Supreme Court for further proceedings in accordance with our prior determination … . People v Ocasio, 2026 NY Slip Op 04595, Fourth Dept 7-24-26

Practice Point: Consult this decision for a discussion of the “searching inquiry” a judge must engage in before allowing a defendant to represent himself.

 

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THE JUDGE SHOULD NOT HAVE REMOVED RESPONDENT CO-TRUSTEE WITHOUT A HEARING, CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Surrogate’s Court, determined the respondent co-trustee should not have been removed without a hearing. Where the facts are disputed, a hearing is required:

… “[The] removal of a fiduciary pursuant to SCPA 711 [or] 719 is equivalent to ‘a judicial nullification of the [settlor’s] choice and may only be decreed when the grounds set forth in the relevant statutes have been clearly established’ ” … . Under either SCPA 711 or 719, ” ‘[t]he Surrogate may remove without a hearing only where the misconduct is established by undisputed facts or concessions [or] where the fiduciary’s in-court conduct causes such facts to be within the court’s knowledge’ ” … , and the removal of a trustee without a hearing “will constitute an abuse of discretion ‘where the facts are disputed, where conflicting inferences may be drawn therefrom . . . or where there are claimed mitigating facts that, if established, would render summary removal an inappropriate remedy’ ” … . Here, in response to the factual averments by petitioners as to his misconduct, respondent submitted, inter alia, an affidavit in which he denied having ever improperly removed Trust assets or interfering with the leasing of Trust property, explained how his actions accorded—in his view—with his powers and obligations under the Trust documents, and disputed petitioners’ underlying factual averments. Presented with the competing claims, a hearing was required inasmuch as “the Surrogate must make a credibility determination concerning those issues, and then exercise [their] discretion concerning whether respondent should be removed from [his] appointment[ ]” … . Matter of Simmons (Simmons), 2026 NY Slip Op 04675, Fourth Dept 7-24-26

Practice Point: Consult this decision for insight into when a hearing is required before a co-trustee can be removed under the Surrogate’s Court Procedure Act (SPCA).

 

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THE FAILURE TO GIVE THE CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION WAS REVERSIBLE ERROR HERE, BUT WAS HARMLESS ERROR IN THE CODEFENDANT’S APPEAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the defense request for a circumstantial evidence jury instruction should have been granted. Defendant and his uncle were charged with murder, robbery and criminal possession of a weapon. The uncle was convicted and the Fourth Department ruled that the failure to give the circumstantial evidence jury instruction was harmless error. However the evidence against defendant was weaker and the jury charge may well have led to an acquittal:

… [W]e agree with defendant that the court erred in denying the request for a circumstantial evidence charge … . As we noted in the codefendant’s appeal, “[a]lthough surveillance video footage of a crime can constitute direct evidence . . . , it did not constitute direct evidence here. Defendant’s identity cannot be discerned clearly from the surveillance video footage offered at trial inasmuch as the perpetrators in the videos are masked” … .

We concluded in the codefendant’s appeal that the court’s failure to give the circumstantial evidence charge was harmless given that the codefendant and his vehicle could be tracked to the scenes of the offenses based upon cell phone data, license plate readers, and surveillance video (McEnnis, 247 AD3d at 1475-1476). Here, however, the evidence of defendant’s involvement was substantially less. While one perpetrator on the surveillance video generally matched defendant’s height and build, no witness identified him at the scene of any of the robberies. Moreover, as the People’s expert acknowledged, the expert had “no location information” for defendant’s phone at the times that the alleged incidents occurred. Although the evidence at trial established that defendant exchanged text messages and calls with the codefendant on the dates of the offenses and that the codefendant drove to defendant’s apartment building in Niagara Falls prior to and after the offenses, the People’s expert conceded that he could do little more than “speculate [as to] where [defendant] was during [those] periods of time” when the robberies were being committed. Thus, this is not “the exceptional case where the failure to give the circumstantial evidence charge was harmless error” … . People v Coleman, 2026 NY Slip Op 04629. Fourth Dept 7-24-26

Practice Point: Defendant and his uncle were charged with murder and robbery and tried separately. The failure to give the circumstantial evidence jury instruction was harmless error in the uncle’s trial. But it was reversible error in defendant’s trial because the evidence tying defendant to the crimes was weaker.

 

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THE FAILURE TO GIVE THE CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION WAS REVERSIBLE ERROR HERE, BUT WAS HARMLESS ERROR IN THE CODEFENDANT’S APPEAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the defense request for a circumstantial evidence jury instruction should have been granted. Defendant and his uncle were charged with murder, robbery and criminal possession of a weapon. The uncle was convicted and the Fourth Department ruled that the failure to give the circumstantial evidence jury instruction was harmless error. However the evidence against defendant was weaker and the jury charge may well have led to an acquittal:

… [W]e agree with defendant that the court erred in denying the request for a circumstantial evidence charge … . As we noted in the codefendant’s appeal, “[a]lthough surveillance video footage of a crime can constitute direct evidence . . . , it did not constitute direct evidence here. Defendant’s identity cannot be discerned clearly from the surveillance video footage offered at trial inasmuch as the perpetrators in the videos are masked” … .

We concluded in the codefendant’s appeal that the court’s failure to give the circumstantial evidence charge was harmless given that the codefendant and his vehicle could be tracked to the scenes of the offenses based upon cell phone data, license plate readers, and surveillance video (McEnnis, 247 AD3d at 1475-1476). Here, however, the evidence of defendant’s involvement was substantially less. While one perpetrator on the surveillance video generally matched defendant’s height and build, no witness identified him at the scene of any of the robberies. Moreover, as the People’s expert acknowledged, the expert had “no location information” for defendant’s phone at the times that the alleged incidents occurred. Although the evidence at trial established that defendant exchanged text messages and calls with the codefendant on the dates of the offenses and that the codefendant drove to defendant’s apartment building in Niagara Falls prior to and after the offenses, the People’s expert conceded that he could do little more than “speculate [as to] where [defendant] was during [those] periods of time” when the robberies were being committed. Thus, this is not “the exceptional case where the failure to give the circumstantial evidence charge was harmless error” … . People v Coleman, 2026 NY Slip Op 04629. Fourth Dept 7-24-26

Practice Point: Defendant and his uncle were charged with murder and robbery and tried separately. The failure to give the circumstantial evidence jury instruction was harmless error in the uncle’s trial. But it was reversible error in defendant’s trial because the evidence tying defendant to the crimes was weaker.

 

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