You are here: / Judges
, ,

ALTHOUGH A COURT HAS THE DISCRETIONARY “INTERESTS OF JUSTICE” POWER TO VACATE ITS OWN ORDER, THAT POWER SHOULD ONLY BE EXERCISED IN UNIQUE OR UNUSUAL CIRCUMSTANCES NOT PRESENT HERE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court should not have vacated its own dismissal of the action in 2013 because (Wilmington) demonstrated none of criteria for vacation of a judgment or order described in CPLR 5015 (a);

“Under CPLR 5015(a), the court which rendered a judgment or order may relieve a party from it upon such terms as may be just, upon the ground of excusable default; newly discovered evidence; fraud, misrepresentation, or other misconduct of an adverse party; lack of jurisdiction to render the judgment or order; or reversal, modification, or vacatur of a prior judgment or order upon which it is based” … . “In addition to the specific grounds set forth in CPLR 5015(a), a court may, in its discretion, vacate its own judgment ‘for sufficient reason and in the interests of substantial justice'” … . “However, a court’s inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from judgments taken through fraud, mistake, inadvertence, surprise or excusable neglect” … . In other words, “[a] court should only exercise its discretionary authority to vacate a judgment in the interests of substantial justice where unique or unusual circumstances . . . warrant such action” … .

Here, the Supreme Court improvidently exercised its discretion in granting that branch of the Wilmington’s motion which was to vacate the 2013 dismissal order. Importantly, Wilmington did not adequately explain why it delayed nearly eight years before filing its motion … . Wells Fargo Bank, N.A. v Sulton, 2025 NY Slip Op 01128, Second Dept 2-26-25

Practice Point: CPLR 5015 (a) gives a court the discretionary power to vacate its own order “in the interests of substantial justice.” That power should only be exercised in unique or unusual circumstances, not present here.

 

, , ,

WHETHER THE JUDGMENT DEBTOR IS ENTITLED TO RESTITUTION AFTER REVERSAL OF A RESTRAINING NOTICE AND WHETHER PLAINTIFF IS ENTITLED TO AN INSTALLMENT PAYMENT ORDER ARE DISCRETIONARY ISSUES TO BE DECIDED UPON REMAND; CRITERIA EXPLAINED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, reversing Supreme Court and remanding the matter, determined that whether the judgment debtor was entitled to restitution based on the reversal of a restraining notice and whether the plaintiff is entitled to an installment payment order were not decided by the reversal, but  rather were discretionary issues to be resolved on remand. The facts are too complex to fairly summarize here:

… CPLR 5015(d) provides that, “[w]here a judgment or order is set aside or vacated, the court may direct and enforce restitution in like manner and subject to the same conditions as where a judgment is reversed or modified on appeal.” … Thus, “CPLR 5015[d] empowers a court that has set aside a judgment or order to restore the parties to the position they were in prior to its rendition, consistent with the court’s general equitable powers” … . The essential inquiry for a court addressing a request for the equitable remedy of restitution is whether it is against equity and good conscious to permit a party to retain the money that is sought to be recovered … . The determination whether to award restitution is committed to the trial court’s discretion … . * * *

Contrary to defendant’s contention that an installment payment order cannot be directed at funds exempt from execution under CPLR 5231 (i.e., 90% of his monthly disability insurance payments), such an order is the expedient for accessing exempt income … . As Professor Siegel stated long ago, “[o]ne of [CPLR 5226’s] prime uses is in that situation . . . where it appears that the judgment debtor can afford more than the 10% to which the income execution is limited” … . Thus, “[t]he court on the [CPLR 5226] motion can direct the debtor to make regular payments to the judgment creditor in any sum it finds the debtor able to afford, not limited by the 10% that restricts the income execution of CPLR 5231” … . Hamway v Sutton, 2025 NY Slip Op 01062, First Dept 2-25-25

Practice Point: Although this opinion is fact-specific, it includes the criteria for some fundamental debtor-creditor issues, i.e., the amount of monthly disability insurance payments which is available to a judgment debtor, the income-sources which are available to a judgment debtor, whether a plaintiff is entitled to an installment payment order, the criteria for a court’s discretionary determination of the amount a judgment debtor can afford to pay every month, etc.

​

, ,

DEFENDANT’S COMPLAINTS ABOUT THE ACTIONS OF DEFENSE COUNSEL WERE NOT SPECIFIC OR SERIOUS ENOUGH TO WARRANT AN INQUIRY BY THE JUDGE; THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a three-judge dissent, determined defendant had not made specific and serious allegations about the behavior of his attorney which were sufficient to warrant an inquiry by the judge:

… [D]efendant argues that the complaints contained in his letter were factually specific and serious enough to require a minimal inquiry. He points to his accusations that defense counsel was not working in his best interest; disregarded his request to visit, “even via [v]ideo”; hung up on him; disrespected him and his wife; was prolonging the proceedings; and told him to accept a plea even though he was “in fact innocent.” Contrary to defendant’s contention, these statements did not constitute “specific factual allegations of ‘serious complaints about counsel’ ” … . Defendant’s assertions that counsel was not working in his best interest, was prolonging the proceedings, and was advising him to take a plea were too general and conclusory to require a minimal inquiry. There are simply no facts elucidating these allegations that would have signaled to the trial court that a serious conflict emerged between defendant and his counsel.

… The seriousness of defendant’s allegation that counsel failed to visit him was undermined by other statements in the letter, which clearly indicated that counsel and his private investigator were communicating with defendant. Moreover, defendant failed to explain how defense counsel allegedly disrespected him and his wife. Nor did he provide any context regarding defense counsel allegedly hanging up on him. For instance, it is entirely unclear whether defense counsel intentionally or inadvertently hung up on defendant or whether defense counsel simply hung up because the conversation had ended. … [D]efendant’s complaints … lacked sufficient elaboration to signal to the trial court that the complaints were serious enough to warrant minimal inquiry … . People v Fredericks, 2025 NY Slip Op 01011, CtApp 2-20-25

Practice Point: The nature of defendant’s complaints about the behavior of defense counsel were not specific or serious enough to trigger the need for an inquiry by the judge. There was a three-judge dissent.

 

, ,

DEFENDANT WAS 16 AT THE TIME OF THE CRIME AND WAS CONVICTED OF MANSLAUGHTER IN 2012; THE CONVICTION WAS AFFIRMED IN 2014; PURSUANT TO A MOTION FOR A WRIT OF CORAM NOBIS BROUGHT IN 2022 IT HAS BEEN DETERMINED THAT SUPREME COURT ERRED IN FAILING TO CONSIDER WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS AND THE MATTER IS NOW REMITTED TO SUPREME COURT FOR THAT PURPOSE (THIRD DEPT). ​

The Third Department, vacating defendant’s sentence, determined the matter should be remitted for a ruling on whether defendant defendant should be afforded youthful offender status. Defendant, who was 16 at the time of the crime was convicted of manslaughter in 2012. His conviction was affirmed in 2014. In 2022 defendant moved for a writ of coram nobis to permit him to argue that Supreme Court erred by failing to determine whether he should be afforded youthful offender status:

The decision to grant or deny youthful offender status rests within the sound exercise of the sentencing court’s discretion to determine “if in the opinion of the court the interest of justice would be served by relieving the eligible youth from the onus of a criminal record” … . “Among the factors to be considered are the gravity of the crime and manner in which it was committed, mitigating circumstances, the defendant’s prior criminal record, prior acts of violence, recommendations in the presentence reports, the defendant’s reputation, the level of cooperation with authorities, the defendant’s attitude toward society and respect for the law, and the prospects for rehabilitation and hope for a future constructive life” … . Defendant argues, the People concede, and we agree that defendant is an eligible youth; thus, Supreme Court erred in failing to determine defendant’s eligibility for youthful offender status in the first instance … .

Although this Court has the authority to determine whether defendant is entitled to youthful offender status … , we decline the People’s invitation to do so here in the complete absence of any consideration by the sentencing court as to whether defendant should be adjudicated a youthful offender … . Accordingly, we remit the matter to Supreme Court for the explicit purpose of providing an opportunity to the parties to fully advocate for and against whether youthful offender status for defendant is warranted … . People v Vanderhorst, 2025 NY Slip Op 01012, Third Dept 2-20-25

Practice Point: Here Supreme Court’s erroneous failure to consider whether defendant should be afforded youthful offender status was first raised in a motion for a writ of coram nobis after defendant’s conviction had been affirmed on appeal.

 

,

THE PROBATION CONDITION THAT DEFENDANT “SUPPORT DEPENDENTS AND MEET OTHER FAMILY RESPONSIBILITIES” WAS NOT TAILORED TO THE OFFENSE (CRIMINAL POSSESSION OF A WEAPON) AND WAS THEREFORE DELETED (SECOND DEPT). ​

The Second Department, deleting a condition of probation, determined that the condition that defendant “support dependents and meet other family responsibilities” was not tailored to the offense (criminal possession of a weapon):

“Pursuant to Penal Law § 65.10(1), conditions of probation ‘shall be such as the court, in its discretion, deems reasonably necessary to insure that [a] defendant will lead a law-abiding life or to assist [the defendant] to do so'” … . “The statute ‘quite clearly restricts probation conditions to those reasonably related to a defendant’s rehabilitation'” … .

Here, under the circumstances of this case, Condition No. 14, requiring that the defendant “[s]upport dependents and meet other family responsibilities,” was improperly imposed because it was not individually tailored in relation to the offense and therefore, was not reasonably related to the defendant’s rehabilitation or necessary to insure that he will lead a law-abiding life … . People v Sobers, 2025 NY Slip Op 00992, Second Dept 2-19-25

Practice Point: Probation conditions must be tailored to the offense to which defendant pled guilty. Here the condition that defendant support dependents and meet family responsibilities was not relevant to the offense (criminal possession of a weapon).​

 

, ,

DENYING FATHER’S REQUEST FOR AN ADJOURNMENT IN THIS CUSTODY MODIFICATION PROCEEDING EFFECTIVELY DEPRIVED HIM OF HIS RIGHT TO TESTIFY AND HIS RIGHT TO A FULL AND FAIR EVIDENTIARY HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined the court improvidently exercised its discretion when it denied father’s request for an adjournment of the custody modification proceedings. Father was effectively denied his right to testify:

“The granting of an adjournment rests in the sound discretion of the hearing court upon a balanced consideration of all relevant factors” … . “The determination to grant or deny an adjournment will not be overturned absent an improvident exercise of discretion” … . While adjournments are within the discretion of the hearing court, the range of that discretion is narrowed where a fundamental right of the parties is involved … . Generally, in a proceeding pursuant to Family Court Act article 6 seeking modification of a prior custody and visitation order, a full and comprehensive hearing is required, where due process requires that a parent be afforded a full and fair opportunity to be heard … .

After balancing the relevant factors, we find that under the circumstances of this case, the Family Court improvidently exercised its discretion in denying the father’s request for an adjournment, as the court’s denial of the requests for adjournment deprived the father entirely of his right to testify on his own behalf in the custody modification hearing, thereby depriving him of a full and fair evidentiary hearing … . Matter of Panizo v Douglas, 2025 NY Slip Op 00966, Second Dept, 2-19-25

Practice Point: Although the decision to grant or deny a request for an adjournment is discretionary, here the denial of the request effectively deprived father of his right to a full and fair evidentiary hearing in this custody modification proceeding, requiring reversal.

 

,

WHERE PLAINTIFF HAS FAILED TO FILE A NOTE OF ISSUE BY A COURT-ORDERED DEADLINE, RESTORATION TO THE ACTIVE CALENDAR IS AUTOMATIC WHERE NO 90-DAY NOTICE HAD BEEN SERVED AND THERE HAD BEEN NO COURT-ORDERED DISMISSAL (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion to restore the action to the active calendar should have been granted. Although plaintiff had failed to file a note of issue by the court-ordered deadline, no 90-day notice had been served nor had the court ordered dismissal of the action:

“When a plaintiff has failed to file a note of issue by a court-ordered deadline, restoration of the action to the active calendar is automatic, unless either a 90-day notice has been served pursuant to CPLR 3216 or there has been an order directing dismissal of the complaint pursuant to 22 NYCRR 202.27” … . “In the absence of those two circumstances, the court need not consider whether the plaintiff had a reasonable excuse for failing to timely file a note of issue” … . Adams v Frankel, 2025 NY Slip Op 00939, Second Dept 2-19-25

Practice Point: Where plaintiff fails to fails to file a note of issue by the court-ordered deadline, restoration of the action to the active calendar is automatic where no 90-day notice has been served and dismissal has not been ordered by the court.

 

, ,

ALTHOUGH THIS MEDICAL MALPRACTICE ACTION WAS IMPROPERLY BROUGHT AS AN ORDER TO SHOW CAUSE AND PETITION, IT SHOULD NOT HAVE BEEN DISMISSED; RATHER IT SHOULD HAVE BEEN CONVERTED BY DEEMING THE ORDER TO SHOW CAUSE A SUMMONS AND THE PETITION A COMPLAINT; MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the action should not have been dismissed because it was in the form of a proceeding rather than an action. Supreme Court should have converted the proceeding into the proper form:

The petitioner commenced this purported proceeding by the filing of an order to show cause and a petition, inter alia, for injunctive relief and to recover damages for medical malpractice. In opposition to the order to show cause and the petition, the respondent submitted an affirmation of counsel, in which counsel argued, among other things, that the proceeding should be dismissed because it was not brought in the proper form. The Supreme Court conducted a hearing on the petition. Thereafter, the court issued a judgment, in effect, denying the petition and dismissing the proceeding. The petitioner appeals.

Although this matter was improperly commenced in the form of a proceeding instead of an action, dismissal is not required. “Pursuant to CPLR 103(c), a proceeding should not be dismissed ‘solely because it is not brought in the proper form,’ and the court has the power to convert a proceeding into the proper form” … . Accordingly, we convert this proceeding into an action, inter alia, for injunctive relief and to recover damages for medical malpractice, with the order to show cause deemed to be the summons and the petition deemed to be the complaint (see CPLR 103[c] …), and remit the matter to the Supreme Court, Nassau County, to afford the respondent an opportunity to serve and file an answer within 20 days of service upon it of this decision and order with notice of entry … . Matter of Robinson v NYU Langone Hosps., 2025 NY Slip Op 00870, Second Dept 2-13-25

Practice Point: A proceeding brought in the wrong form can be converted to the proper form by the court pursuant to CPLR 103 (c).

 

, , , ,

IMPROPER CROSS-EXAMINATION OF PLAINTIFF ABOUT HIS STATUS AS A DEFENDANT IN A PENDING LAWSUIT WARRANTED GRANTING PLAINTIFF’S MOTION FOR A MISTRIAL (SECOND DEPT).

The Second Department, reversing the denial of plaintiff’s motion for a mistrial, determined plaintiff was improperly cross-examined about his status as a defendant in a pending lawsuit:

… Supreme Court should have granted the plaintiff’s motion for a mistrial based upon improper cross-examination of the plaintiff about a pending lawsuit against him relating to his alleged failure to pay for an unrelated medical procedure. Where a lawsuit has not resulted in an adverse finding against a witness, counsel should not be permitted to ask the witness if he or she has been sued since the fact that a lawsuit has been commenced, in and of itself, has little or no probative value with regard to credibility … . Here, the court improvidently permitted defense counsel to cross-examine the plaintiff as to whether he was the defendant in a pending lawsuit alleging nonpayment, since the lawsuit had not resulted in an adverse finding against the plaintiff and the fact that the lawsuit had been commenced, in and of itself, had little to no probative value with regard to the plaintiff’s credibility … . Moreover, defense counsel’s reference to an allegation that the plaintiff had taken $200,000 in insurance proceeds that was not forwarded to medical providers and, after being precluded from ascertaining from the plaintiff whether that allegation was true, defense counsel’s reference to “someone” taking $250,000 that “didn’t belong to them,” prejudiced the plaintiff, who was the sole eyewitness on his behalf. Drayton v Putnam Hosp. Ctr., 2025 NY Slip Op 00845, Second Dept 2-13-25

Practice Point: The cross-examination of the plaintiff about his status as a defendant a pending lawsuit was improper and warranted a mistrial.

 

, , ,

HERE THE PLAINTIFFS-TENANTS WERE ENTITLED TO A YELLOWSTONE INJUNCTION WHICH TOLLS THE CURE PERIOD UNTIL A COURT DETERMINES WHETHER THE TENANT HAS ACTUALLY DEFAULTED; PURPOSES OF AND CRITERIA FOR A YELLOWSTONE INJUNCTION CLEARLY EXPLAINED (FIRST DEPT). ​

The First Department reversed Supreme Court and granted plaintiff’s a “Yellowstone” injunction to allow time for a court to determine the nature and status of an ambiguous lease. Supreme Court had erroneously struck the “temporary restraining order” paragraph in plaintiffs-tenants’ order to show cause, which allowed the period to cure the alleged defaults to run out resulting in termination of the lease. The opinion includes a clear explanation of the nature and equitable purpose of a Yellowstone injunction, which is applicable to commercial leases. One of the issue here was whether the lease was commercial or residential:

A Yellowstone injunction “maintains the status quo so that a commercial tenant, when confronted by a threat of termination of its lease, may protect its investment in the leasehold by obtaining a stay tolling the cure period so that upon an adverse determination on the merits the tenant may cure the default and avoid a forfeiture” … .

… [T]he Yellowstone injunction tolls the relevant cure period, thereby preventing the termination of the lease … . With the Yellowstone injunction in place, the tenant can litigate with some confidence: if the tenant prevails in the underlying dispute with the landlord, the tenant walks away from the litigation with the lease intact; if the tenant loses the underlying dispute, the tenant can cure the demonstrated lease defaults before the expiration of the remaining cure period … .

* * * Yellowstone relief is a unique injunction. Unlike a standard preliminary injunction that can be granted only upon a demanding three-part showing of a likelihood of success on the merits, irreparable injury, and that the equities favor the party seeking the preliminary injunction, a Yellowstone injunction is granted on “far less” a showing … .

The party seeking Yellowstone relief must demonstrate the following four elements: “(1) It holds a commercial lease; (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease; (3) it requested injunctive relief prior to the termination of the lease; and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises” … . Wharton-Bickley v 388 Broadway Owners LLC, 2025 NY Slip Op 00802, First Dept 2-11-25

Practice Point: Consult this decision for a clear explanation of the purposes of and the criteria for a Yellowstone injunction.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy