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UNDER THE FORECLOSURE ABUSE PREVENTION ACT (FAPA), A DEFENDANT CAN RENEW A SUMMARY JUDGMENT MOTION AFTER A JUDGMENT OF FORECLOSURE AND AFTER THE TIME FOR APPEAL HAS EXPIRED AS LONG AS THE SALE HAS NOT YET BEEN CONDUCTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant’s motion for renewal of its summary judgment motion in this foreclosure proceeding should have been granted. The motion was based upon the retroactive application of the Foreclosure Abuse Prevention Act (FAPA). Renewal should be granted after a judgment of foreclosure and after the time for appeal has expired if the sale has not yet been conducted:

Generally, “a motion for leave to renew based upon an alleged change in the law must be made prior to the entry of a final judgment, or before the time to appeal has fully expired” … . However, in Article 13 LLC v Ponce De Leon Fed Bank, the Court of Appeals clarified the application of the Foreclosure Abuse Prevention Act (FAPA), finding that it applies retroactively and to all foreclosure actions in which “a final foreclosure sale had not been enforced prior to its effective date, including actions pending at the time of its effective date” … .

A judgment of foreclosure and sale is deemed enforced when the sale is concluded … . Therefore, the only way to effectuate the retroactive application of FAPA after a judgment has been entered and the time to appeal has expired, is by filing a motion to renew before the sale is conducted … . Based on a change in the law with the enactment of the FAPA, [defendant’s] motion for leave to renew pursuant to CPLR 2221(e)(2), was timely … . 21st Mtge. Corp. v Jin Hua Lin, 2026 NY Slip Op 01116, First Dept 2-26-26

Practice Point: The Foreclosure Abuse Prevention Act (FAPA) allows a defendant to renew a motion for summary judgment after a judgment of foreclosure and after the time for appeal has expired if the foreclosure sale has not yet been conducted.

 

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ALTHOUGH THE EVIDENCE WAS DEEMED LEGALLY SUFFICIENT, THE EVIDENCE OF THE INTENT TO COMMIT ASSAULT SECOND, WHICH INVOLVED INJURY TO POLICE OFFICERS, DID NOT SURVIVE A WEIGHT-OF-THE-EVIDENCE ANALYSIS; THE TWO JUVENILES WERE FIXATED SOLEY UPON FIGHTING EACH OTHER THROUGHOUT THE BRIEF INCIDENT (FIRST DEPT). ​

The First Department, reversing (modifying) Family Court in this juvenile delinquency proceeding, in a full-fledged opinion by Justice Rodriguez, determined the assault second adjudications were not supported by the weight of the evidence. Two juveniles were fighting each other and police officers were injured trying to break-up the fight. The First Department found that, because the juveniles were fixated only on fighting each other throughout the incident there was insufficient evidence of an intent to interfere with the officers’ performance of their duty:

… Penal Law § 120.05 (3) provides: “A person is guilty of assault in the second degree when: . . . 3. With intent to prevent [an] officer . . . from performing a lawful duty, . . . he or she causes physical injury to such [] officer.” Accordingly, a person is guilty of the offense when their conscious objective or purpose is to prevent an officer from performing their lawful duty, the person acts in a manner consistent with that intent, and the officer is injured … . * * *

The record … lacks any indication that appellant directed his actions at the officers, whether by turning around, throwing an elbow backward, or in some other way … . …

Similarly, the evidence at the hearing did not show beyond a reasonable doubt that appellant had even a chance to recognize and consciously disregard the officers’ directives. Matter of Cynque T., 2026 NY Slip Op 01147, First Dept 2-26-26

Practice Point: Consult this decision for insight into the factors considered under a weight-of-the-evidence analysis of criminal intent.

 

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PLAINTIFF WAS STRUCK BY A STEEL BAR WHICH FELL DURING AN ATTEMPT TO HOIST IT WITH EXCAVATING EQUIPMENT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF DID NOT NEED TO DEMONSTRATE THE EXACT CAUSE FOR THE BAR’S FALLING, NOR DID HE NEED TO SPECIFY THE EQUIPMENT WHICH SHOULD HAVE BEEN USED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was struck by a steel bar which apparently fell over as it was about to be hoisted by an excavation machine. Plaintiff did not need to demonstrate the exact circumstances under which the bar fell, nor did he need to specify the type of equipment which should have been used to hoist the bar:

Plaintiff was injured as he and his coworkers were making bases for cement columns by using a drilling/excavation machine to remove steel bars that had been drilled into the ground. Plaintiff testified that when removing the bars, a fabric sling was tied to the top of the bar, a hook was placed into the sling, and the drilling/excavation machine lifted the bar away. As the last bar was being removed, it fell and hit plaintiff. According to plaintiff’s testimony, the bar was standing vertically on the drilling machine and was not secured before the machine moved it.

Supreme Court should have granted plaintiffs’ motion for summary judgment on liability on their Labor Law § 240(1) claim. Plaintiffs demonstrated prima facie entitlement to summary judgment on this claim by submitting evidence establishing that the steel bar was not secured while the excavation/drilling machine was hoisting it out of the ground … . Even though plaintiff testified that he did not see the precise moment that the bar began to fall and was unsure whether a sling was attached to the bar at the time of the accident, he was not obliged to show the exact circumstances under which the object fell … . Furthermore, because the equipment used to hoist the steel bar failed to prevent it from falling, plaintiffs were also not obliged to specify the type of safety device that defendants should have provided … . Valarezo v HP Jamsta Hous. Dev. Fund Co. Inc., 2026 NY Slip Op 01148, First Dept 2-26-26

Practice Point: To be entitled to summary judgment on a Labor Law 240(1) falling-object cause of action, plaintiff need not demonstrate the precise circumstances which caused the object to fall.

 

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THE FEDERAL CHILD-PORNOGRAPHY CRIME OF WHICH DEFENDANT WAS CONVICTED WAS BASED ON CONDUCT WHICH HAD NOT BEEN CRIMINALIZED BY A NEW YORK STATUTE AT THE TIME OF DEFENDANT’S CONVICTION; THEREFORE DEFENDANT SHOULD NOT HAVE BEEN ADJUDICATED A SEX OFFENDER UNDER SORA (FIRST DEPT).

The First Department, vacating Supreme Court’s sex offender adjudication, over an extensive dissent, determined that the federal crime of which defendant was convicted was not encompassed by New York State criminal law at the time of defendant’s conviction. The defendant sent images of adult bodies engaged in sexual conduct with his 16-year-old cousin’s (the victim’s) face superimposed on the images:

Defendant was convicted under 18 USC § 1466A(a)(1)(A) which proscribes images created, adapted or modified to appear as though an identifiable minor is engaging in sexual conduct, otherwise known as “morphed” child pornography. We agree with our dissenting colleague that defendant’s actions were deplorable. Nevertheless, we are constrained to find that this conduct does not give rise to criminal liability under the analogous New York State statute, Penal Law § 263.15, as it existed at the time of [defendant’s] conviction. Therefore, the court erred in adjudicating defendant a sex offender. People v Lewis, 2026 NY Slip Op 01016, First Dept 2-24-26

Practice Point: Here defendant was convicted of a federal child-pornography offense for conduct which was not covered by a New York criminal statute. Therefore defendant could not be adjudicated a sex offender based on the federal conviction.

 

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PURSUANT TO THE HOUSING STABILITY AND TENANT PROTECTION ACT (HSTPA) AND NEW YORK CITY’S RENT STABILIZATION LAW (RSL), THE TENANT WAS ENTITLED TO BUT WAS NEVER OFFERED A RENEWAL LEASE UNDER THE TERMS OF THE PRIOR LEASE SIGNED BY HIS GRANDMOTHER; THE LANDLORD’S HOLDOVER AND EVICTION PETITION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Appellate Term, determined the landlord’s holdover and eviction petition should have been dismissed. The tenant was entitled to a renewal lease pursuant to the Rent Stabilization Law and the Housing Stability and Tenant Protection Act (HSTPA). The landlord never provided a renewal lease:

The Housing Stability and Tenant Protection Act (HSTPA) was enacted on June 14, 2019 and became effective immediately … . The HSTPA restricts a landlord’s right to withdraw a previously offered preferential rent, even if properly preserved in the lease. Specifically, Rent Stabilization Law § 26-511(c)(14) provides that for “any tenant who . . . is or was entitled to receive a renewal or vacancy lease” as of the date of the HSTPA’s enactment, “the amount of rent for such housing accommodation that may be charged and paid shall be no more than the rent charged to and paid by the tenant prior to that renewal, as adjusted by the most recent applicable guidelines increases and any other increases authorized by law.” … . * * *

Where a landlord fails to offer a renewal lease, the rights under the expiring lease continue to apply (Rent Stabilization Code (9 NYCRR) § 2523.5[d] [“(T)he failure to offer a renewal lease pursuant to this section shall not deprive the tenant of any protections or rights provided by the RSL and this Code and the tenant shall continue to have the same rights as if the expiring lease were still in effect”]). Where a renewal lease is not made in a timely fashion, “courts have repeatedly upheld . . . allowing the renewal lease increase to take effect only prospectively” … .

… [T]he tenant’s succession rights under the prior lease signed by the tenant’s grandmother continued to apply until he was offered a renewal lease on November 7, 2019 after the passage of the HSTPA. As the HSTPA applies to tenant’s succession rights, his cross-motion dismissing the petition should have been granted on the basis that he was entitled to a lease at the amount of rent paid under the prior lease signed by his grandmother (Rent Stabilization Law § 26-511[c][14]). Matter of West Side Marquis LLC v Maldonado, 2026 NY Slip Op 01023, First Dept 2-24-26

Practice Point: Consult this decision for insight into the application of the Housing Stability and Tenant Protection Act (HSTPA) and NYC’s Rent Stabilization Law (RBL).

 

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EMPLOYMENT DISCRIMINATION CASES ARE REVIEWED UNDER “NOTICE PLEADING” STANDARDS WHERE ONLY FAIR NOTICE OF THE NATURE OF THE CLAIM AND ITS GROUNDS ARE REQUIRED; HERE PLAINTIFF’S ALLEGATION THAT A SUPERVISOR STATED SHE RECEIVED HIGH EVALUATIONS BECAUSE SHE ENGAGED IN SEXUAL RELATIONS WITH HER SUPERIORS WAS SUFFICIENT TO SURVIVE DISMISSAL (FIRST DEPT).

The First Department, reversing Supreme Court, determined that a single remark by a supervisor may sustain an employment discrimination or hostile work environment claim. The court noted the more lenient pleading requirement for employment discrimination actions:

… [E]mployment discrimination cases are generally reviewed under notice pleading standards … . Indeed, a “plaintiff alleging employment discrimination need not plead specific facts establishing a prima facie case of discrimination but need only give fair notice of the nature of the claim and its grounds” … . In an action brought under the New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL), “[f]air notice is all that is required to survive at the pleading stage” … . * * *

Although a “single, isolated comment” or “stray remark” will not always suffice to sustain a discrimination or hostile work environment claim … , “a single comment that objectifies women being made in circumstances where that comment would, for example, signal views about the role of women in the workplace” could be actionable … . Here, where plaintiff alleged that her supervisor implied that she only received high evaluation scores because she was engaging in sexual relations with higher-ups, the alleged remarks and attendant hostile conduct were more than “petty slights and trivial inconveniences” … . Cummings v City of New York, 2026 NY Slip Op 00972, First Dept 2-19-26

Practice Point: Pleading standards are more lenient in employment discrimination cases. Fair notice of the nature of the claim and its grounds are sufficient to survive dismissal.

 

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ALTHOUGH A JURY TRIAL WAIVER IN A CONTRACT IS NOT ENFORCED WHERE A COUNTERCLAIM ASSERTS FRAUDULENT INDUCEMENT, HERE THE FRAUDULENT-INDUCEMENT COUNTERCLAIM SOUGHT RESCISSION OF THE CONTRACT, EQUITABLE RELIEF WHICH MUST BE TRIED BY THE COURT; THE MOTION TO STRIKE DEFENDANTS’ JURY-TRIAL DEMAND SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing the denial of plaintiff’s motion to strike defendants’ jury demand, determined defendants were not entitled to a jury trial on the counterclaims. Defendants asserted fraudulent inducement and sought rescission of the contract in addition to seeking damages as an alternative. Because rescission in equitable relief, a jury trial is not available:

… [D]efendants are not entitled to a jury trial on their counterclaims. Generally, a party asserting a fraudulent inducement claim may pursue a jury trial, notwithstanding the existence of a jury waiver clause, when that party primarily seeks money damages … . Here, by contrast, defendants’ counterclaims seek rescission of the contract and side letter agreement, with damages only sought in the alternative. As the Court of Appeals has held, “[a]ll issues pertaining to [an] equitable defense and counterclaim, whether matters of fact or law, [are] to be determined by the court under CPLR 4101” … and “[r]escission claims, of course, are equitable in nature” … . Accordingly, defendants’ counterclaims must be tried by the court, not a jury, by virtue of the equitable relief they seek. Penske v National Holding Corp., 2026 NY Slip Op 00978, First Dept 2-19-26

Practice Point: Where a cause of action seeks equitable relief, here rescission of a contract, it must be tried by the court, not a jury, even if damages are demanded in the alternative.

 

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EVEN WHERE EVIDENCE OF AN UNCHARGED CRIME IS “INEXTRICABLY INTERTWINED” WITH THE NARRATIVE OF CHARGED CRIME, IT MAY BE INADMISSIBLE BECAUSE ITS PREJUDICIAL EFFECT OUTWEIGHS ITS PROBATIVE VALUE; HERE THE COMPLAINANT’S TESTIMONY ABOUT A PRIOR UNCHARGED SEX ACT SHOULD NOT HAVE BEEN ADMITTED (FIRST DEPT).

The Frist Department, reversing the conviction in this sexual abuse prosecution, determined the evidence of a prior sex act with the complainant was much more prejudicial than probative. The evidence was therefore inadmissible:

Prior to the commencement of jury selection for the second trial, the People made a Molineux application to allow the complainant to testify about an alleged prior oral sexual encounter with defendant. The People argued, inter alia, that this evidence was “inextricably intertwined” with the complainant’s testimony as to the charges of sexual abuse, provided relevant background, and put the complainant’s testimony “into a believable context.” Supreme Court granted the People’s motion. The court concluded that the proposed testimony was “inextricably woven [in]to the narrative.” …

Supreme Court erred in granting the People’s Molineux application. Even if the People established some non-propensity basis for introducing this evidence, “the prejudicial nature of that evidence far outweighed any probative value” … . People v Nieves, 2026 NY Slip Op 00979, First Dept 2-19-26

Practice Point: Here in this sexual abuse prosecution, the complainant’s testimony about a prior, uncharged sex act was deemed much more prejudicial than probative. Therefore the testimony was inadmissible, despite the argument that it was “inextricably intertwined” with the narrative of the crime or provided relevant background.

 

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DEFENSE COUNSEL LEFT A PROFFER SESSION MIDWAY THROUGH THE PROCEEDINGS; DURING THE PROFFER SESSION DEFENDANT MADE AN INCRIMINATORY STATEMENT WHICH WAS USED TO IMPEACH HIS CREDIBILITY AT TRIAL; DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE-ASSISTANCE GROUNDS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction based upon ineffective assistance of counsel should have been granted. Defense counsel left a proffer session midway through the proceedings:

Supreme Court erred in finding that defendant failed to satisfy his burden of establishing that he received ineffective assistance of counsel when his counsel absented himself from a proffer session midway through the session. Absent an express waiver from defendant, counsel had an obligation to be present during the session and to “be alert to, and to avert if he could, the possibility that defendant’s cooperation would hurt rather than help him” … . Under the circumstances, where counsel advanced no sound strategic reason behind his decision to leave the proffer session, his absence deprived defendant of meaningful representation at a critical stage in the proceeding … . Defendant was prejudiced by counsel’s absence, because a statement defendant made during the proffer session implicating himself in the burglaries for which he was ultimately tried and convicted for, was successfully used by the prosecution to impeach defendant’s credibility at the trial … . People v Anonymous, 2026 NY Slip Op 00980, First Dept 2-19-26

Practice Point: A proffer session is a critical stage of a criminal proceedings at which a defendant may incriminate himself. Here defense counsel’s leaving a proffer session midway constituted ineffective assistance warranting vacation of the conviction.

 

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THE JUDGE FAILED TO COMMUNICATE WITH THE OHIO COURT AFTER LEARNING OF ANOTHER CUSTODY-RELATED PROCEEDING THERE AND FAILED TO CONSIDER WHETHER IT SHOULD EXERCISE TEMPORARY EMERGENCY JURISDICTION BASED ON ALLEGATIONS OF DOMESTIC VIOLENCE IN MOTHER’S PETITION (FIRST DEPT).

The First Department, reversing Family Court, determined the judge committed reversible error by failing to communicate with the Ohio court after learning of another custody-related proceeding there. In addition, the judge failed to consider whether to exercise temporary emergency jurisdiction to protect mother and child. Mother’s custody petition alleged serious domestic violence:

Family Court failed to satisfy the procedural mechanism required by the Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law, art 5-A) when a custody-related proceeding is pending in another state. Specifically, after the court became aware of the Ohio proceeding, the record does not reflect that the court attempted to communicate with the Ohio court, which is a reversable error … . * * *

… Family Court failed to comply with the statutory requirement to consider, under the circumstances presented and in light of the serious allegations of domestic violence in the mother’s petition, whether it was necessary to exercise temporary emergency jurisdiction to protect the mother and the child … . Matter of Shelby C.V. v Joshua W.K, 2026 NY Slip Op 01002, First Dept 2-17-26

Practice Point: It is reversible error for a judge to fail to communicate with a court in another jurisdiction after learning of another custody-related proceeding there.

Practice Point: Allegations of domestic violence may trigger the statutory requirement that a judge consider exercising temporary emergency jurisdiction to protect family members.

 

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