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HERE PLAINTIFF’S PROPOSED CONSTRUCTION OF APARTMENTS WAS PROHIBITED BY A LOCAL LAW; PLAINTIFF ALLEGED THE BIAS OF THE CHAIRPERSON OF THE PLANNING BOARD INFECTED THE PLANNING BOARD’S RECOMMENDATION TO THE TOWN BOARD (WHICH ENACTED THE LAW); THOSE ALLEGATIONS RAISED A QUESTION OF FACT PRECLUDING SUMMARY JUDGMENT FINDING THE LOCAL LAW VALID (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Judge Garry, determined questions of fact precluded summary judgment in favor of the town in this dispute over the approval of the construction of apartments. Plaintiffs alleged that the chairperson of the planning board, who owned adjacent property, was biased against the proposed construction and his bias infected the planning board’s recommendation:

As Supreme Court correctly noted, the enactment that plaintiffs seek to invalidate in this action was a product of the Town Board, not the Planning Board … . We further note that it is expressly within the power of the Planning Board to submit advisory opinions to the Town Board for proposed amendment to the zoning law … . For these reasons, it is possible that the connection of the alleged bias to the action of the Town Board may ultimately be insufficiently direct. Supreme Court’s decision apparently rejected plaintiffs’ allegations on this ground. Nonetheless, accepting plaintiffs’ allegations as true, the extent to which the long-term Chairperson’s alleged bias infected the Planning Board’s recommendation to the Town Board that multifamily dwelling development be reconsidered, the Town’s subsequent investigation thereof, and the Town Board’s ultimate adoption of the challenged local law limiting same is not amenable to resolution as a matter of law at this procedural stage … . Thus, any declaration regarding the validity of Local Law No. 2022-08 was premature, and Supreme Court’s order must be reversed in full so that the action may proceed through the ordinary course. PF Dev. Group, LLC v Town of Brunswick, 2025 NY Slip Op 03671, Third Dept 6-18-25

Practice Point: Here allegations that the passage of a local law was influenced by bias on the part of the chairperson of the planning board raised a question of fact precluding summary judgment finding the local law valid.​

 

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WITHOUT AN AGREEMENT ON THE RECORD, A FAMILY COURT JUDGE CANNOT ORDER RESTITUTION IN A JUVENILE DELINQUENCY PROCEEDING FOR ITEMS NOT RECITED IN THE PETITION (THIRD DEPT).

The Third Department, reversing Family Court in this juvenile delinquency proceeding, determined there was nothing in he record demonstrating respondent (juvenile) accepted an admission in exchange for restitution on all charges. The order of restitution was reversed:

Family Court may order a person who has been adjudicated a juvenile delinquent to make “restitution in an amount representing a fair and reasonable cost to replace the property [or] repair the damage caused by” him or her (Family Ct Act § 353.6 [1] [a]). In doing so, Family Court has “broad discretion” in determining the proper disposition in a juvenile delinquency proceeding … , but, as a court of limited jurisdiction, remains constrained to exercise the powers granted to it by statute … . Unlike the Penal Law, which permits restitution for damage to property that was not alleged in the charging document but still “part of the same criminal transaction” (Penal Law § 60.27 [4] [a]), there is “no parallel provision in Family Court Act § 353.6,” thus restitution is generally limited to those items recited in the petition … . To this further point, “a juvenile may be required to pay restitution for a charge to which he or she did not admit only where there is a recorded agreement to accept an admission in exchange for restitution” … . Matter of Juan Z. (Juan Z.), 2025 NY Slip Op 03674, Third Dept 6-18-25

Practice Point: Unlike under the Penal Law, the ability of a Family Court judge under the Family Court Act to order restitution in a juvenile delinquency proceeding is limited to the items recited in the petition and/or in an agreement on the record.

 

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“MAKING A TERRORISTIC THREAT” IS A BAILABLE FELONY (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Hallligan, over a three-judge dissent, determined “making a terroristic threat” is a bailable felony:

Michael Cavagnolo was arrested and charged with making a terroristic threat after he repeatedly called the Hyde Park Police Department emergency line threatening to commit violent acts against officers, their families, and Police Department property. County Court fixed bail pursuant to CPL 510.10 (4) (a). That paragraph makes bailable all violent felony offenses listed in Penal Law § 70.02, with two specific exceptions. One of the offenses listed in Penal Law § 70.02 is the crime of making a terroristic threat (see Penal Law § 70.02 [1] [c]). Paragraph (g) of CPL 510.10 (4), however, makes bailable the felony crimes of terrorism defined in Penal Law article 490 but expressly excludes the crime of making a terroristic threat.

Although these two paragraphs are difficult to reconcile, the text and disjunctive structure of CPL 510.10 (4) indicate that paragraph (g) was not intended to narrow the independent authorization provided in paragraph (a) to set monetary bail for all violent felony offenses listed therein. We therefore hold that making a terroristic threat is a bail-eligible offense. Accordingly, we reverse. People ex rel. Ellis v Imperati, 2025 NY Slip Op 03646, CtApp 6-17-25

Practice Point: Despite seemingly conflicting statutory provisions, “making a terroristic threat” was deemed a bailable felony by the Court of Appeals.

 

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BAIL MAY BE IMPOSED ON A DEFENDANT WHO IS CHARGED WITH COMMITTING NEW OFFENSES WHILE OUT ON BAIL, EVEN IF THE NEW OFFENSES WOULD NOT OTHERWISE QUALIFY FOR THE IMPOSITION OF BAIL (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Garcia, over a two-judge concurrence, determined a defendant who commits new offenses when out on bail is subject to the imposition of bail for the new offenses, even when the new offenses would not otherwise have qualified for the imposition of bail:

CPL 510.10 (4) (t) provides a judge with discretion to set bail on certain otherwise non-qualifying offenses committed after a defendant has been “released under conditions” on a prior charge. The issue raised on this appeal is whether a defendant who is arrested on new charges after having been released on bail on the prior, underlying charge is “released under conditions” within the meaning of that provision. We hold that the statute applies in such circumstances, and because affirmative habeas relief is no longer available, we reverse the Appellate Division … .

The 2019 bail reform legislation eliminated cash bail for most crimes, except for certain specified qualifying offenses listed in CPL 510.10 (4) … . In 2020, the legislature amended subdivision (4) by expanding the categories of offenses that qualified for bail. The changes included the addition of CPL 510.10 (4) (t), a harm-on-harm provision, by which “an otherwise non-qualifying offense may be converted into a qualifying offense” … . Under that provision, certain ineligible crimes may otherwise qualify for bail if those crimes “arose from conduct occurring while the defendant was released on his or her own recognizance, released under conditions or had yet to be arraigned after the issuance of a desk appearance ticket for a separate felony or class A misdemeanor involving harm to an identifiable person or property” … . For purposes of section (4) (t), the underlying crime need not be a qualifying offense … . People ex rel. Welch v Maginley-Liddie, 2025 NY Slip Op 03645, CtApp 6-17-25

Practice Point: Where a defendant is charged with new offenses committed while on bail, bail may be imposed for the new offenses even where they otherwise would not qualify for the imposition of bail.

 

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HERE DEFENDANT’S SENTENCE WAS REDUCED PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) AFTER SHE HAD BEEN IMPRISONED LONGER THAN THE MAXIMUM ALLOWED BY THE DVSJA; THE EXCESS PRISON TIME SHOULD NOT HAVE BEEN CREDITED TO ELIMINATE THE PERIOD OF POSTRELEASE SUPERVISION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a two-judge dissent, determined defendant’s (Brenda’s) sentence was properly reduced by the Appellate Division pursuant to the Domestic Violence Survivors Justice Act (DVSJA), but the excess time Brenda was imprisoned beyond the maximum allowed by the DVSJA should not been credited to eliminate the period of postrelease supervision:

The DVSJA requires that resentenced defendants be given a period of postrelease supervision. Penal Law § 70.45 (2) (f) … states that that the period of postrelease supervision for resentences imposed under Penal Law § 60.12 (8) “shall be” not less than two and one-half years nor more than five years. That requirement is specific to DVSJA resentences. * * *

… [T]he Appellate Division was within its plenary factual review power when it reversed and reduced Brenda’s sentence pursuant to the DVSJA, but because the court’s imposition of the maximum term of postrelease supervision may have been based on its erroneous conclusion that time Brenda spent incarcerated beyond that imposed by the DVSJA resentencing could be credited against the term of postrelease supervision required by the DVSJA, the order of the Appellate Division should be modified, without costs, by remitting the case to the Appellate Division for further proceedings in accordance with this opinion … . People v Brenda WW., 2025 NY Slip Op 03643, CtApp 7-17-25

Practice Point: The Appellate Division has the power to make a “de novo” determination whether a defendant is entitled to a sentence reduction pursuant to the Domestic Violence Survivors Justice Act (DVSJA).​

Practice Point: Where a defendant’s sentence is reduced under the DVSJA to a term below the amount of time already served by the defendant, the excess time cannot be credited towed the period of postrelease supervision.

 

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A MISSING JURY-NOTE-RESPONSE TRANSCRIPT DOES NOT WARRANT REVERSAL UNLESS THE DEFENDANT SHOWS ENTITLEMENT TO A RECONSTRUCTION HEARING AND THE TRANSCRIPT CANNOT BE RECONSTRUCTED, NOT THE CASE HERE; WHEN A MOTION TO VACATE A CONVICTION ON INEFFECTIVE-ASSISTANCE GROUNDS TURNS ON FACTS OUTSIDE THE RECORD, DENIAL WITHOUT A HEARING IS AN ABUSE OF DISCRETION (CT APP).

The Court of Appeals, remitting the matter for a hearing, in a full-fledged opinion by Judge Singas, determined (1) the absence of the transcript of a response to a jury note did not require reversal, and (2) defendant’s motion to vacate his conviction on ineffective-assistance grounds should not have been denied without a hearing:

Re: missing response-to-a-jury-note transcript:

… [A] missing transcript alone does not entitle a defendant to the extreme remedy of vacatur, but may entitle a defendant to a reconstruction hearing … . To be sure, if a defendant shows that they are entitled to a reconstruction hearing, and that the missing transcript at issue “cannot be reconstructed . . . , there must be a reversal” … . But defendant has not made that showing. Thus, the missing transcript does not warrant reversing defendant’s conviction.

Re: motion to vacate conviction, ineffective assistance:

Where a defendant moves to vacate their conviction under CPL 440.10, the court “must” decide “whether the motion is determinable without a hearing to resolve questions of fact” … . The court “may deny” the motion summarily under enumerated circumstances, including where purported facts essential to the motion are unsupported by “sworn allegations” that “substantiat[e] or tend[ ] to substantiate” those facts … , or where such a fact “is contradicted by a court record or other official document” and “there is no reasonable possibility that [the] allegation is true” … . We review a CPL article 440 motion’s summary denial for abuse of discretion … .

Defendant’s ineffective assistance claim cannot be decided without first resolving questions of fact. Defense counsel’s affirmation, together with the trial record, suggest that counsel may have lacked a strategic or other legitimate basis for one or more of his actions relating to eyewitness identification testimony at the heart of the People’s proof. Whether counsel in fact had such a basis for his conduct turns on factual information outside the present record that should be developed at an evidentiary hearing. People v Salas, 2025 NY Slip Op 03603, CtApp 6-12-25

Practice Point: A missing jury-note-response transcript does not require reversal unless the defendant shows entitlement to a reconstruction hearing and the transcript cannot be reconstructed.​

Practice Point: Where a motion to vacate the conviction on ineffective-assistance grounds turns on facts outside the record, here the strategic or other legitimate basis for counsel’s actions, it is an abuse of discretion to deny the motion without a hearing.

 

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HERE THE FIRST “NAIL AND MAIL” AFFIDAVIT BY THE PROCESS SERVER FAILED TO DEMONSTRATE THE REQUIRED MAILING; A SECOND AFFIDAVIT WAS SUBMITTED WHICH DESCRIBED THE MAILING; THE SECOND AFFIDAVIT DID NOT CURE THE DEFECT IN THE ORIGINAL AFFIDAVIT; THEREFORE A HEARING ON THE VALIDITY OF THE SERVICE OF PROCESS WAS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a hearing was required on whether defendant was properly served by “nail and mail.” The first affidavit from the process server did not mention the required mailing. A second affidavit which described the mailing was subsequently submitted. The second affidavit did not cure the flaw in the original affidavit:

… Supreme Court erred in determining the defendant’s cross-motion, inter alia, to vacate the judgment and to dismiss the complaint for lack of personal jurisdiction without first conducting a hearing to determine the validity of service of process. The original affidavit of service sworn to on July 26, 2018, failed to aver that the process server mailed the summons and complaint as required by CPLR 308(4). The new affidavit of service sworn to on November 23, 2021, submitted by the plaintiff in opposition to the defendant’s cross-motion, could not be used to cure the apparent defect in the original affidavit of service … . Further, the defendant raised an issue of fact as to whether the summons and complaint were affixed to the door of the defendant’s dwelling place or usual place of abode … . Miller v Fuentes, 2025 NY Slip Op 03564, Second Dept 6-11-25

Practice Point: If the original affidavit by the process server does not describe the mailing requirement for “nail and mail” service, that flaw is not cured by submitting a second affidavit which describes the mailing. The flaw in the original affidavit mandates a hearing on the validity of the service of process.

 

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THE SUPREME COURT’S PART RULES REQUIRED PLAINTIFF TO FIRST CONFERENCE THE MATTER BEFORE MOVING TO COMPEL DEFENDANTS TO COMPLY WITH DISCOVERY DEMANDS; THE FAILURE TO CONFERENCE THE MATTER, HOWEVER, IS NOT A VALID GROUND FOR DENYING THE MOTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to strike defendants’ answer or compel compliance with discovery demands should not have been denied on the ground plaintiff failed to first conference the matter as required by the court’s Part Rules:

… Supreme Court improvidently exercised its discretion in denying the motion on the ground that plaintiff failed to first conference the matter with the court in accordance with its Part Rules. The court may not condition the making of a motion on prior judicial approval … . Reyes v City of New York, 2025 NY Slip Op 03545, First Dept 6-10-25

Practice Point: Here plaintiff’s failure to comply with Supreme Court’s Part Rule requiring a conference before moving to compel discovery was not a valid ground for denying the motion. A court may not condition the making of a motion on prior judicial approval.

 

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THE ERRONEOUS “LOSS OF CHANCE” JURY INSTRUCTION REQUIRED REVERSAL; THE CHARGE USED THE PHRASES “SUBSTANTIAL FACTOR” AND “SUBSTANTIAL PROBABILITY” WHEN THE CORRECT PHRASE IS “SUBSTANTIAL POSSIBILITY” IN REFERENCE TO WHETHER A BETTER OUTCOME WAS DENIED DUE TO A DEVIATION FROM THE STANDARD OF CARE (FOURTH DEPT).

The Fourth Department, reinstating the complaint and ordering a new trial in this medical malpractice action, determined the “loss of chance” jury instruction was erroneous and required reversal:

As this Court has held since at least 2011, a “loss of chance instruction” is “entirely appropriate for . . . omission theories” in medical malpractice actions … . Although the Pattern Jury Instructions did not include a loss of chance pattern charge until 2023, i.e., after the second trial in this matter took place in December 2022, this Court had already issued numerous decisions prior to December 2022 indicating that “the loss of chance theory of causation . . . requires only that a plaintiff ‘present evidence from which a rational jury could infer that there was a “substantial possibility” that the patient was denied a chance of the better outcome as a result of the defendant’s deviation from the standard of care’ ” … .

Here, the court instructed the jury that, in order for plaintiff to recover under a loss of chance theory, it was plaintiff’s burden to establish that the act or omission alleged was a “substantial factor in bringing about the death.” The court also instructed the jury that, if it should find that “there was a substantial probability that the decedent . . . would have survived . . . if he had received proper treatment,” then it could find that defendants’ alleged negligence was a “substantial factor” in causing his death … .

… [T]he charge, as given, did not ” ‘adequately convey[ ] the sum and substance of the applicable law’ ” to the jury … . The primary issue at trial was whether defendants deviated from accepted standards of care in failing to timely treat decedent. Inasmuch as the “court did not adequately charge the jury concerning” the appropriate standard to determine that issue, we conclude that “the court’s failure to define [the correct] standard for the jury” cannot be considered harmless under the circumstances of this case … . Wright v Stephens, 2025 NY Slip Op 03416, Fourth Dept 6-7-25

Practice Point: The “loss of chance” medical malpractice jury instruction requires that plaintiff show there was a “substantial possibility” that a deviation from the standard of care precluded a better outcome. Here the judge used the phrase “substantial probability,” requiring reversal.

 

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THE JUDGE’S PROVIDING ERRONEOUS INFORMATION ABOUT THE MAXIMUM SENTENCE DEFENDANT WAS FACING NEED NOT BE PRESERVED FOR APPEAL AND RENDERED THE GUILTY PLEA INVOLUNTARY (THIRD DEPT).

he Third Department, reversing defendant’s conviction by guilty plea, determined the judge’s providing erroneous information about the maximum sentence defendant was facing did not need to be preserved for appeal and rendered the guilty plea involuntary:

… County Court advised [defendant] that, if he elected to proceed to trial and was convicted of all offenses as a second felony drug offender, he faced a sentencing exposure of 36 years in prison rather than the correct, capped term of 30 years … . … [A]s the Court of Appeals recently made clear, where “the court provides the defendant with erroneous information concerning their maximum sentencing exposure that is contrary to the undisputed text of the Penal Law, fails to correct its error on the record, and the defendant has no apparent reason to question the accuracy of that information, the defendant need not preserve a challenge to the voluntariness of the guilty plea on that ground” … . * * *

Although defendant here was no stranger to the criminal justice system and received a reasonable sentencing commitment from County Court, the plea colloquy itself reflects that defendant believed that he had been overcharged and questioned whether he would be convicted if he went to trial. Defendant made clear during the plea colloquy, in fact, that he was only pleading guilty to the indictment because he would rather[*3]”get the high/low of 16/14″ than go to trial and risk “more time in state prison.” Even then, defendant remained conflicted about pleading guilty until the moment he entered his formal plea, asking County Court immediately before he did so to repeat the potential sentencing exposure he faced if he did not “want to go through all of this and [went] to trial.” … .People v Shaw, 2025 NY Slip Op 03358, Third Dept 6-5-25

Practice Point” Here the judge told defendant he was facing 36 years in prison when the actual maximum was 30. That error need not be preserved for appeal and, based on defendant’s remarks and questions at sentencing, was deemed to have rendered defendant’s guilty plea involuntary.

 

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