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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).​

 

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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.

 

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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.

 

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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).

 

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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.

 

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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.

 

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PETITIONER, WHO IS NOT RELATED TO THE CHILD, DID NOT HAVE STANDING BY EQUITABLE ESTOPPEL TO SEEK CUSTODY OR VISITATION; CRITERIA EXPLAINED (FIRST DEPT).

The First Department, reversing Family Court, determined petitioner, who is not related to the child, did not have standing by equitable estoppel to seek custody of or visitation with the child. The evidence did not demonstrate the relationship between petitioner and the child rose to the level of parenthood:

While the record contains evidence suggesting that petitioner and the child had an ongoing relationship throughout the child’s formative years, the record does not support the idea that disrupting such a relationship would be harmful to the child’s best interests. Petitioner never lived with the child or assumed any financial responsibilities for her. Although petitioner credibly testified that the child visited her frequently during the first three years of the child’s life, there was no evidence that petitioner consistently cared for the child or that the child looked upon petitioner as a parental figure.

… [T]here was evidence that the child did not recognize or view petitioner as parental figure … . From the child’s perspective, the only other parent she knew, aside from respondent, the child’s biological mother, was the mother’s companion, whom she regarded as her father and with whom she reported having a close, bonded relationship with, undercutting petitioner’s equitable estoppel claim … . Matter of April B. v Relisha H., 2025 NY Slip Op 00782, First Dept 2-11-25

Practice Point: To demonstrate standing to bring a custody petition by equitable estoppel, the petitioner must demonstrate a relationship with the child which rises to the level of parenthood, not the case here.

 

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THE JUDGE SHOULD NOT HAVE CONSIDERED A NEW ARGUMENT RAISED FIRST IN REPLY; THE HOLDER OF AN EASEMENT OVER THE PARKING LOT, NOT THE OWNER OF THE PARKING LOT, IS PRIMARILY RESPONSIBLE FOR KEEPING THE LOT FREE OF ICE AND SNOW, NOTWITHSTANDING AN AGREEMENT BETWEEN THE EASEMENT HOLDER AND THE OWNER IN WHICH THE OWNER AGREED TO REMOVE ICE AND SNOW (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this slip and fall case, determined (1) Supreme Court should not have considered a new argument raised for the first time in reply, and (2) defendant, as the holder of an easement over the parking lot, was primarily responsible for keeping the lot free of ice and snow, notwithstanding the terms of a “parking agreement” between defendant and the owner of the lot in which the owner agreed to remove ice and snow from the lot:

… [T]he court improperly granted the motion based on an argument advanced for the first time in reply [i.e., the existence of the “parking agreement”]. The function of reply papers is “to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds [or evidence] for the motion” … . * * *

We agree with the Second Circuit Court of Appeals that the duty of an easement holder “is the same as that owed by a landowner” and is nondelegable (Sutera v Go Jokir, Inc., 86 F3d 298, 308 [2d Cir 1996] …). We therefore conclude that defendant’s “duty to exercise reasonable care toward third parties making use of the parking lot subject to the easement, once established, is not abrogated by a covenant on the part of the servient owner[, i.e., the nonparty owner of 875 East Main Street,] to clear ice and snow from the lot. The general rule that a servient owner may assume duties of maintenance, while undoubtedly relevant as between dominant and servient owners, does not apply when the rights of injured third parties are implicated,” as in the case here … . The fact that the nonparty owner of 875 East Main Street may also have had a duty to maintain the parking lot does not serve to insulate defendant from liability to plaintiff. Otero v Rochester Broadway Theatre League, Inc., 2025 NY Slip Op 00769, Fourth Dept 2-7-25

Practice Point: An argument based on new evidence first presented in reply should not have been considered by the court.​

Practice Point: Here the holder of the easement over the parking lot, as opposed to the owner of the parking lot, was primarily responsible for the removal of ice and snow.

 

 

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HERE THE NEGLECT PROCEEDINGS WERE BROUGHT AGAINST FATHER WHO DID NOT LIVE WITH MOTHER AND THE CHILD; MOTHER WAS NOT A PARTY IN THE NEGLECT PROCEEDINGS; FAMILY COURT DID NOT HAVE THE AUTHORITY TO PLACE MOTHER UNDER THE SUPERVISION OF THE ADMINISTRATION FOR CHILDREN’S SERVICES (ACS) (SECOND DEPT).

The Second Department, reversing Family Court, in a full-fledged opinion by Justice Ventura, determined Family Court did not have statutory authority to place mother, who was not a respondent in the neglect proceeding, under the supervision of the Administration for Children’s Services (ACS) and direct that she cooperate with ACS. The neglect proceedings were brought against father (respondent), who did not live with the mother and child. Mother, a “nonrespondent,” was not a party in the neglect proceedings and the child had not been removed from her home:

This appeal presents this Court with the opportunity to decide an issue of first impression in New York involving the rights of nonrespondent parents in child neglect proceedings, to wit: whether the Family Court may place a nonrespondent custodial parent under the supervision of … [ACS] and the court, and direct the parent to cooperate with ACS in various ways, in circumstances where the respondent parent resides elsewhere and the child has not been removed from the nonrespondent parent’s home. Considering, inter alia, the well-established “interest of a parent in the companionship, care, custody, and management of his or her children” … and the lack of any statutory authority permitting the challenged directives, we answer this question in the negative. Therefore, we conclude that, in this case, the Family Court improperly placed the mother under the supervision of ACS and the court, and directed her to cooperate with ACS in certain respects. * * *

… [T]he relevant provisions of Family Court Act § 1017 apply only when a court orders the removal of a child from his or her home and releases the child to the home of a nonrespondent and “noncustodial parent” … . By the plain language of the statutory text, the provisions requiring the nonrespondent parent … to “submit[ ] to the jurisdiction of the court with respect to the child” and “to cooperate” with “the child protective agency” in various ways … are only triggered “[a]fter [the] child is removed from the home” … . Here, since the court never “determin[ed] that [the] child must be removed from . . . her home” … , it did not have authority pursuant to Family Court Act § 1017 to impose the challenged directives upon the mother, no matter how “well-intended” the court’s “goals” may have been … . Matter of Sapphire W. (Kenneth L.), 2025 NY Slip Op 00662, Second Dept 2-5-25

Practice Point: Here Family Court did did not have the authority to place mother, who was not a party to the neglect proceedings against father, under the supervision of ACS.

 

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ALTHOUGH FATHER FAILED TO APPEAR IN THE CUSTODY PROCEEDING, FAMILY COURT SHOULD HAVE HELD A HEARING AND MADE FINDINGS OF FACT; CUSTODY ORDER VACATED AND MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s motion to vacate the custody order should have been granted. Despite father’s failure to appear in this custody proceeding, Family Court should have held a hearing and made findings of fact in support of awarding custody to mother:

“Although the determination of whether to relieve a party of an order entered upon his or her default is a matter left to the sound discretion of the Family Court, the law favors resolution on the merits in child custody proceedings” … . In addition, the court’s authority to proceed by default “in no way diminishes the court’s primary responsibility to ensure that an award of custody is predicated on the child’s best interests, upon consideration of the totality of the circumstances, after a full and comprehensive hearing and a careful analysis of all relevant factors” … . “A custody determination, whether made upon the default of a party or not, must always have a sound and substantial basis in the record” … .

Here, the Family Court made a custody determination without a hearing and without making any specific findings of fact regarding the best interests of the child. Matter of Riera v Ayabaca, 2025 NY Slip Op 00661, Second Dept 2-5-25

Practice Point: Although Family Court can proceed by default in a custody matter, a hearing and findings of fact are necessary.

 

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