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IN DETERMINING WHETHER THE PEOPLE’S CERTIFICATE OF COMPLIANCE WITH THEIR DISCOVERY OBLIGATIONS WAS VALID THE MOTION COURT RULED THE PEOPLE HAD ACTED IN GOOD FAITH; THE MATTER WAS REMITTED FOR THE APPLICATION OF THE CORRECT STANDARD: WHETHER THE PEOPLE ACTED WITH DUE DILIGENCE AND MADE REASONABLE EFFORTS TO SATISFIY THEIR OBLIGATIONS (FOURTH DEPT).

The Fourth Department remitted the matter for a new determination whether the People’s certificate of compliance (COC) with their discovery obligations was valid. The motion judge held the People “acted in good faith.” The appropriate inquiry is whether the People exercised due diligence and made reasonable efforts to satisfy their obligations:

… [T]he court erred in concluding that the People’s initial COC was proper solely on the basis that the People acted in good faith with respect to their discovery obligations. The court was required to determine whether the People satisfied their burden of establishing that they exercised due diligence and made reasonable efforts to satisfy their obligations under CPL article 245 at the time they filed their initial COC … . In light of the court’s failure to consider whether the People met that burden, we hold the case, reserve decision and remit the matter to Supreme Court to make that determination and, if appropriate, to determine whether the statement of readiness was valid and whether the People were ready within the requisite time period (see CPL 30.30 [1] [a]). People v Mosley, 2025 NY Slip Op 06484, Fourth Dept 11-21-25

Practice Point: The standard for determining whether the People’s certificate of compliance with their discovery obligations is valid is “due diligence,” not “good faith.”

 

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HERE THE JUDGE DID NOT HAVE THE AUTHORITY TO SUMMARILY MAKE A SEVERE ABUSE FINDING AND TERMINATE RESPONDENTS’ PARENTAL RIGHTS BASED UPON A PRIOR ABUSE HEARING; SEVERE ABUSE WAS NOT ALLEGED IN THE PRIOR HEARING; A SEVERE ABUSE FINDING MUST BE BASED ON A “CLEAR AND CONVINCING” STANDARD, NOT THE “PREPONDERANCE OF EVIDENCE” STANDARD APPLIED IN THE PRIOR HEARING; IN ADDITION, THE JUDGE SHOULD NOT HAVE ISSUED AN ORDER OF DISPOSITION WITHOUT HOLDING A DISPOSITIONAL HEARING; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court’s “severe abuse” finding and the consequent termination of parental rights, determined it was error to make these rulings based upon a prior abuse hearing because “severe abuse” was not alleged in that hearing. In addition, a finding of “severe abuse” must be based on “clear and convincing evidence,” not the “preponderance of the evidence” standard applied in the prior hearing. Also, the judge should not have issued an order of disposition without holding a dispositional hearing:

… [T]he court did not have the authority, in the context of this Social Services Law § 384-b proceeding, to retroactively make a finding of severe abuse under Family Court Act § 1051 (e) based upon the evidence adduced during the prior article 10 abuse proceeding. … Family Court Act § 1051 (e) provides that in an article 10 abuse case, the court may “[i]n addition to a finding of abuse, . . . enter a finding of severe abuse or repeated abuse, . . . which shall be admissible in a proceeding to terminate parental rights pursuant to [Social Services Law § 384-b (4) (e)] . . . If the court makes such additional finding of severe abuse or repeated abuse, the court shall state the grounds for its determination, which shall be based upon clear and convincing evidence.”

Thus, while it is true that a court is permitted to make a severe abuse finding as part of the disposition in an article 10 abuse case … , that did not occur here. Indeed, in the context of the underlying article 10 proceeding, petitioner did not seek a determination that Respondents severely abused the child, and the court made no such determination. Moreover, the entirety of the court’s findings in the article 10 matter were based upon a preponderance of the evidence—not clear and convincing evidence as required by the statute … . Finally, we note that the court improperly issued an order of disposition in this case before conducting a dispositional hearing (see Family Ct Act § 631; Social Services Law § 384-b [8] [f]). We therefore reverse the order and remit the matter to Family Court for further proceedings on the petition.  Matter of Kevin V. (Sara L.), 2025 NY Slip Op 06422, Fourth Dept 11-21-25

 

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THE MOTION COURT PROPERLY ISSUED A PROTECTIVE ORDER REQUIRING PLAINTIFF’S COUNSEL IN THIS MED MAL CASE TO RESCIND THE CORRESPONDENCE SENT TO PLAINTIFF’S TREATMENT PROVIDERS WHICH DISCOURAGED THEM FROM SPEAKING WITH DEFENSE COUNSEL; THE DISSENT ARGUED THE MAJORITY WAS IMPROPERLY ISSUING AN ADVISORY OPINION (FOURTH DEPT).

The Fourth Department, over a dissent which argued the majority was improperly issuing an advisory opinion, determined the trial judge in this medical malpractice action properly ordered plaintiff’s counsel rescind correspondence sent to treatment providers which discouraged the treatment providers from speaking with defense counsel. The correspondence accompanied the “Arons” speaking authorizations executed by the plaintiff:

… [A] plaintiff who signs an authorization allowing a treating physician to speak to defense counsel about the plaintiff’s medical condition at issue should not be allowed to send a letter separately to the same physician requesting that the physician not speak to defense counsel. Permitting plaintiffs to make such a request would undermine the purpose of the Arons authorization and, at the very least, be confusing to the physician … .

Adding to the confusion is the statement “I value and wish to protect the confidentiality of our physician-patient relationship,” which may lead the physician to conclude that, notwithstanding plaintiff’s execution of the speaking authorization, plaintiff was not actually waiving the physician-patient privilege or the privacy protections afforded by HIPAA. …

… [T]he letter … might lead the physician to believe, wrongly, that plaintiff has a right to attend any informal interview with defense counsel. … [A] defendant’s attorney may ask treating physicians to participate in ex parte interviews, which by definition do not involve the plaintiff. While a physician may insist that the plaintiff be present for such an interview, that is a decision for the physician alone to make. Just as a defendant’s attorney has no right to interview the physician informally … , a plaintiff has no right to attend the interview (the plaintiff has only the right to ask the physician for permission to attend an interview).

Based on the above, we cannot conclude that the court abused its discretion in directing plaintiff “to send correspondence to his treating physicians rescinding all prior letters sent containing the language that the [c]ourt has deemed to be confusing, misleading and/or intimidating.”  Murphy v Kaleida Health, 2025 NY Slip Op 06421, Fourth Dept 11-21-25

Practice Point: Here the letters sent to treatment providers by plaintiff’s counsel, which accompanied the “Arons” speaking authorizations, improperly discouraged the treatment providers from speaking with defense counsel. Plaintiff’s counsel was properly ordered to rescind the correspondence.

 

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THE JUDGE DID NOT FOLLOW THE REQUIRED PROCEDURE FOR FINDING NEGLECT ON A GROUND NOT ALLEGED IN THE PETITION; TO DO SO, THE JUDGE MUST AMEND THE ALLEGATIONS IN THE PETITION TO CONFORM TO THE PROOF AND GIVE THE RESPONDENT TIME TO RESPOND TO THE AMENDED ALLEGATIONS; NEITHER WAS DONE; PETITION DISMISSED (FOURTH DEPT).

The Fourth Department, dismissing the neglect petition, determined Family Court did not follow the required procedure for finding neglect on a ground which was not alleged in the petition. The court may amend the allegations in the petition to conform to the proof, provided the respondent is given a reasonable time to respond to the amended allegations. Here the court did not amend the allegations or give mother time to respond:

Pursuant to Family Court Act § 1051 (b), “[i]f the proof does not conform to the specific allegations of the petition, the court may amend the allegations to conform to the proof; provided, however, that in such case the respondent shall be given reasonable time to prepare to answer the amended allegations.” Here, the basis for the court’s finding of neglect pursuant to section 1012 (f) (i) (B) was not alleged in the petition, and the court did not amend the allegations to conform to the proof or give the mother notice or an opportunity to respond to any such implied amendment … . As the mother contends, had she known that the court was considering a theory of neglect based solely on her post-disclosure conduct, she would have prepared a defense to that theory. We therefore conclude that the court’s finding of neglect on that ground was improper … , and the petition must be dismissed … . Matter of Mariah W. (Amber N.), 2025 NY Slip Op 06487, Fourth Dept 11-21-25

Practice Point: To find neglect on a ground not alleged in the petition, the judge must conform the allegations in the petition to the proof and give the respondent time to respond to the amended allegations. Here the failure to follow that procedure resulted in dismissal of the petition.

 

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THE SENTENCING COURT DID NOT ABUSE ITS DISCRETION IN DENYING A YOUTHFUL OFFENDER ADJUDICATION, DESPITE THIS BEING DEFENDANT’S FIRST CONTACT WITH THE JUDICIAL SYSTEM, HIS ACQUITTAL OF THE MOST SERIOUS CHARGES, AND AFFIDAVITS FROM SEVERAL JURORS IN SUPPORT OF THE MOTION TO SET ASIDE THE VERDICT; THERE WAS A SUBSTANTIVE DISSENT (THIRD DEPT).

The Third Department, affirming defendant’s attempted assault conviction and the denial of youthful offender status, over a dissent, determined the trial court did not abuse its discretion in denying the request for a youthful offender adjudication. The victim was slashed with a knife in the abdomen and arm. It was defendant’s first contact with the criminal justice system. Affidavits from some of the jurors were submitted in support of defendant’s motion to set aside the verdict:

… Supreme Court noted that it had received multiple letters in support of defendant which indicated that he was of “upstanding character.” The court agreed with defendant’s assertion that this was his first involvement with the criminal justice system and that he had avoided circumstances like this in the past. The court considered these facts in imposing the sentence, but also that there was no evidence that any other individual had been involved in the physical altercation between defendant and the victim. The court expressly disbelieved defendant’s explanation that he carried the knife at all times because he feared for his safety, in view of the fact that defendant’s presence with the knife was explicitly requested. The court noted that if defendant was truly afraid for his safety the appropriate response would be to call campus police, not show up to the fight with knife in tow. The court also paid importance to defendant’s failure to take accountability or acknowledge that his actions caused the victim’s injury, despite having expressed generalized sympathy for the victim. The court found that, although eligible for youthful offender status, the circumstances of the crime did not warrant granting the request and imposed a five-year term of incarceration. * * *

From the dissent:

… “[Y]outhful offender designations are given to those who have a real likelihood of turning their lives around, and the protection gives these individuals the opportunity for a fresh start, without a criminal record” … . That is precisely what the facts of this case present: an individual who made a grave mistake but appears motivated to redeem himself. In my view, although defendant’s crime is significant, justice is better served by imposing a sentence that is commensurate with the severity of his crime while also permitting him to become a productive member of society upon release, which will occur at a critical time in his transition to adult life … . People v Hall, 2025 NY Slip Op 06366, Third Dept 11-20-25

Practice Point: Consult this decision for insight into the broad discretion accorded a judge in determining whether to adjudicate a defendant a youthful offender.​

 

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THE DEFENDANT’S WAIVER OF APPEAL WAS INVALID BECAUSE THE JUDGE FAILED TO ADVISE DEFENDANT (1) THAT THE STATE WOULD BEAR THE COSTS OF AN APPEAL IF THE DEFENDANT COULD NOT AFFORD THEM; AND (2) THE WAIVER DID NOT ENCOMPASS THE LOSS OF RIGHTS TO COUNSEL AND THE WAIVER OF COSTS, FEES, AND EXPENSES; IN ADDITION THE JUDGE DID NOT ASCERTAIN WHETHER DEFFENDANT READ AND UNDERSTOOD THE WRITTEN WAIVER FORM, OR WHETHER DEFENDANT HAD DISCUSSED THE WAIVER WITH COUNSEL (SECOND DEPT). ​

The Second Department determined defendant’s waiver of appeal was invalid:

… [T]he defendant’s purported waiver of his right to appeal was invalid. Among other things, during the appeal waiver colloquy, the Supreme Court failed to advise the defendant that if he could not afford the costs of an appeal or of an attorney to represent him on appeal, then the State would bear those costs … or to advise the defendant that the waiver of the right to appeal did not encompass the loss of attendant rights to counsel and the waiver of costs, fees, and expenses … . Although the defendant executed a written appeal waiver form, the court failed to ascertain on the record whether the defendant had read the written waiver, was aware of all of its contents, and had discussed the entire written waiver with counsel, including the portion of the written waiver addressing the attendant rights to counsel and the waiver of costs, fees, and expenses … . Thus, under the circumstances of this case, the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal, and the purported appeal waiver does not preclude appellate review of any of the defendant’s contentions … . People v Mingo, 2025 NY Slip Op 06335, Second Dept 11-19-25

Practice Point: Consult this decision for insight into what a judge must advise and ask the defendant to ensure the waiver of appeal is knowing and intelligent.

 

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A JUDGE CANNOT DELEGATE PARENTAL ACCESS DETERMINATIONS TO A MENTAL HEALTH PROFESSIONAL (SECOND DEPT). ​

The Second Department noted that a judge should not delegate to a mental health professional the determination of whether a parent will be awarded parental access:

“[A] court may not properly delegate to mental health professionals the ultimate determination of whether a parent will be awarded [parental access] rights” … . It is “improper for [a] court to condition future [parental access] on the recommendation of a mental health professional” … . Here, the Family Court erred by delegating to the therapeutic agency (1) the authority to determine when therapeutic parental access would cease and the father’s prior stipulated unsupervised parental access schedule would be reinstated and (2) the discretion to expand and/or modify the father’s access to the children … . Accordingly, the order must be modified by deleting the provisions thereof modifying the parental access provisions of the judgment of divorce so as to condition the father’s parental access on the therapeutic agency’s determinations. Matter of McCook v Delbrune, 2025 NY Slip Op 06322, Second Dept 11-19-25

 

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THE SECOND DEPARTMENT HAD REVERSED ON APPEAL, DETERMINING THE COMPLAINT SHOULD HAVE BEEN DISMISSED; WHEN SUPREME COURT WROTE A JUDGMENT DISMISSING THE COMPLAINT BASED ON THE SECOND DEPARTMENT’S DECISION IT IMPROPERLY ADDED A SENTENCE WHICH WAS NOT IN THE DECISION; A JUDGMENT BASED UPON AN APPELLATE DECISION MUST STRICTLY CONFORM TO THE DECISION (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the judgment entered by Supreme Court after reversal on apply did not strictly conform to the Second Department’s decision. Presumable the extra sentence added by Supreme Court was struck on appeal:

… [T]he judgment should not have included the provision directing “that Plaintiff is permitted to file a new action as against [the defendant] in accordance with Brothers v. Florence, 95 NY2d 290 (2000),” as the judgment was entered upon this Court’s decision and order dated December 28, 2022 … , which did not grant such relief to the plaintiff … . “A ‘written order [or judgment] must conform strictly to the court’s decision,’ and in the event of an inconsistency between a judgment and a decision or order upon which it is based, the decision or order controls” … . “Such an inconsistency may be corrected either by way of a motion for resettlement or on appeal” … . Deutsche Bank Trust Co. Ams. v Smith, 2025 NY Slip Op 06308, Second Dept 11-19-25

Practice Point: After reversal on appeal, any judgment written by the lower court must strictly conform to the language of the appellate decision. Here Supreme Court wrote a judgment dismissing the complaint but improperly added a sentence (which was not in the appellate decision) to the effect that plaintiff was permitted to file a new action.

 

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DEFENDANTS IN THIS BREACH OF CONTRACT ACTION SHOULD HAVE BEEN SANCTIONED FOR SPOLIATION OF EVIDENCE, I.E., THE DESTRUCTION OR LOSS OF EMAILS; PLAINTIFFS’ MOTION TO STRIKE THE ANSWER WAS PROPERLY DENIED; HOWEVER, PLAINTIFFS WERE ENTITLED TO AN ADVERSE INFERENCE JURY INSTRUCTION AT TRIAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendants should have been sanctioned for spoliation of evidence, i.e., the failure to preserve relevant emails. The plaintiffs alleged defendants performed faulty renovation-work and thereby breached the renovation contract:

“Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126” … . “The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence” … . “A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense” … . “‘A culpable state of mind for [the] purposes of a spoliation sanction includes ordinary negligence'” … . Further, “[s]triking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct and, in order to impose such a sanction, the court ‘will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness'” … . “In contrast, where the moving party has not been deprived of the ability to establish his or her case or defense, a less severe sanction is appropriate” … . “[A]dverse inference charges have been found to be appropriate even in situations where the evidence has been found to have been negligently destroyed” … .

… [P]laintiffs demonstrated that the defendants were on notice that they had an obligation to preserve their email accounts and emails prior to the time that they were lost or destroyed. The plaintiffs also demonstrated that the emails were lost or destroyed with a culpable state of mind and that the emails were sufficiently relevant to the litigation … . Nonetheless, contrary to the plaintiffs’ contention, the drastic remedy of striking the defendants’ answer was not warranted … . Under the circumstances, the Supreme Court should have granted that branch of the plaintiffs’ motion which was pursuant to CPLR 3126 to strike the defendants’ answer to the extent of directing that an adverse inference charge be issued at trial against the defendants with respect to the loss or destruction of their email accounts and emails … . Dorman v Luva of NY, LLC, 2025 NY Slip Op 06155, Second Dept 11-12-25

Practice Point: Consult this decision for a concise explanation of the criteria for finding spoliation of evidence and the appropriate sanctions. In this breach of contract action, plaintiffs demonstrated defendants destroyed or lost relevant emails with a “culpable state of mind.”

 

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RESPONDENT THREATENED SELF HARM AND WAS TAKEN INTO CUSTODY PURSUANT TO THE MENTAL HYGIENE LAW; THE JUDGE DECLINED TO ISSUE A TEMPORARY “EXTREME RISK PROTECTION ORDER” (ERPO) AND SET THE MATTER DOWN FOR A HEARING; SUBSEQUENTLY THE JUDGE, SUA SPONTE, CANCELED THE HEARING AND DISMISSED THE PETITION, ACTIONS FOR WHICH THE JUDGE HAD NO AUTHORITY; MATTER REMITTED FOR A HEARING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that the judge, who had declined to issue a temporary “extreme risk protection order” (ERPO) for respondent and had set the matter down for a hearing, did not have the authority to, sua sponte, cancel the hearing and dismiss the petition. After respondent had threatened self harm he was taken into custody pursuant to the Mental Hygiene Law:

… [O]ne day prior to the scheduled hearing, Supreme Court, sua sponte, issued a decision canceling the hearing and dismissing the petition. As grounds for the dismissal, the court found that dismissal best served the interest of preserving judicial and law enforcement resources given respondent’s inability to purchase a firearm due to the arrest pursuant to Mental Hygiene Law § 9.41, purported hospital admission pursuant to Mental Hygiene Law § 9.39 (a) and the lack of any indication that respondent owned any firearms in New York at the time of the proceeding. …

To begin, as the order on appeal was issued on a sua sponte basis, no appeal lies as of right (see CPLR 5701 [a] [2]). Nevertheless, “we treat the notice of appeal as a request for permission to appeal and grant the request” … .

… Supreme Court’s sua sponte order dismissing the petition must be reversed. “[S]ua sponte dismissals are to be used sparingly and only when extraordinary circumstances exist to warrant them” … . Here, there is no indication that such extraordinary circumstances exist. The grounds relied upon by Supreme Court — that the relief that would be provided by an ERPO was “duplicative and an inefficient use of judicial and law enforcement resources” — to the extent that they could constitute meritorious grounds for dismissal, require that petitioner be given the opportunity to respond and object … . Moreover, CPLR 6343 (1) clearly mandates that if a temporary ERPO is denied, such as occurred here, the court hold a hearing, no later than 10 business days after the application for the ERPO is served on the respondent, to determine whether an ERPO should be issued. Supreme Court’s sua sponte dismissal on grounds that are entirely absent from the statute was improper, and we therefore reverse and remit to conduct a hearing as required. Matter of Hogencamp v Matthew KK., 2025 NY Slip Op 06106, Third Dept 11-6-25

Practice Point: Sua sponte orders are not appealable as of right. Permission to appeal must be requested.​

Practice Point: Here the respondent threatened self harm and was taken into custody pursuant to the Mental Hygiene Law. A judge’s authority is constrained by the Mental Hygiene Law. Once an “extreme risk protection order” (ERPO) is denied by the judge and the matter is set down for a hearing, the judge cannot, sua sponte, cancel the hearing and deny the petition for reasons not prescribed in the Mental Hygiene Law.

 

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