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EXPULSION OF PETITIONER-STUDENT FROM THE PHYSICIAN ASSISTANT PROGRAM “SHOCKED [THE COURT’S] SENSE OF FAIRNESS;” PETITONER WAS REINSTATED IN GOOD STANDING (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the student’s petition to vacate her college’s determination to expel her from the physician assistant program should have been granted. The petitioner-student had written recommendations for friends seeking admission to the program. Although the recommendations clearly indicated the petitioner was still a student, the digitally generated designation PA-C (Physician Assistant-Certified) appeared on the recommendations instead of PA-S (Physician Assistant -Student). The First Department found expulsion was not supported by the record and ordered the student reinstated in good standing:

“It is well settled that a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion . . .” … . A review of the record makes it clear that the faculty members of the College’s Professional Conduct Review Committee and Academic Performance Committee unreasonably failed to view the totality of the circumstances and abused their discretion. This mistake harmed no one; petitioner consistently maintained that the mistake was inadvertent, as supported by petitioner’s digital signature on the letter with her student email address as well as the multiple references in the accompanying CASPA form to petitioner as a “student”; and the typographical mistake of the use of PA-C was rectified on all documentation … .

Pursuant to the College’s policy, petitioner’s inadvertent mistake simply warranted counseling or, at worst, probation. Here, the College’s imposition of the ultimate academic sanction of expulsion is “so disproportionate to the offense as to shock our sense of fairness” … as to warrant its vacatur. Matter of Mirza v College of Mount St. Vincent, 2025 NY Slip Op 05156, First Dept 9-25-25

Practice Point: Here the appellate court found that the expulsion of a college student “shock[ed] our sense of fairness.” The court vacated the expulsion and reinstated the student in good standing.

 

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EXCESSIVE ABSENCES FROM SCHOOL SUPPORTED THE EDUCATIONAL NEGLECT FINDINGS, BUT NEGLECT BECAUSE OF MENTAL ILLNESS WAS NOT DEMONSTRATED (FIRST DEPT).

The First Department, reversing (modifying) Family Court, determined that, although the petitioner demonstrated the parents educationally neglected the children, the petitioner did not demonstrate father neglected the children because of his mental illness:

A preponderance of the evidence supports Family Court’s finding that parents educationally neglected the children (see Family Court Act §§ 1012[f][i][B], 1046[b][i]). During the fall 2022 term and the previous school year, both children were absent more than half of the school days, and evidence of excessive unexcused absences from school will support a finding of neglect … . Even crediting the father’s testimony that he made efforts to ensure the children attended school, we find that petitioner provided sufficient evidence to establish that the father educationally neglected the children … . Despite years of outreach from the children’s schools, the father failed to follow up, attend important meetings, or obtain proffered services. School records indicated that the children’s academic progress suffered due to excessive absences and tardiness; both children were failing classes and not progressing towards annual goals. Under these circumstances, even though the father spoke with school personnel, inquired about assistance, and ultimately requested a reevaluation for one of the children, he nevertheless failed to take adequate steps to prevent the children from experiencing significant educational delays resulting from poor attendance … .

… [P]etitioner did not satisfy its burden to prove by a preponderance of the evidence that the father neglected the children because of his mental illness … . Although the father did not dispute that he suffered from depression, he testified that he was engaged in mental health treatment, including therapy and medication, and petitioner did not provide either documentary evidence or expert testimony demonstrating that the father’s mental illness interfered with his “judgment and parenting abilities” or connecting the father’s depression with his inadequate efforts to ensure the children attended school, thereby placing the children at imminent risk of physical, mental or emotional impairment” … . Matter of S.M.W. (J.R.M.), 2025 NY Slip Op 05181, First Dept 9-25-25

Practice Point: Consult this decision for a rare discussion of the criteria for “educational” and “mental-illness” neglect of children.

 

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PLAINTIFF’S COUNSELS “AFFIRMATION OF GOOD FAITH” WAS DEFICIENT; PLAINTIFF’S MOTION TO STRIKE AN AFFIRMATIVE DEFENSE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to strike an affirmative defense was not supported by a sufficient “affirmation of good faith” from plaintiff’s counsel:

The court should have denied plaintiff’s motion to strike the answer because the affirmation of good faith from plaintiff’s counsel failed to comply with Uniform Rules for Trial Courts (22 NYCRR) § 202.20-f(b). Counsel states only perfunctorily that defendants failed to comply with four court orders for a deposition and that he contacted defendants on a certain date to confirm the deposition. Counsel failed to attest that he conducted an in-person or telephonic conference as required by 22 NYCRR 202.20-f(b) … . While counsel’s affirmation in support of the motion provides additional explanations, such as that “[they] made an effort” to contact defendants’ counsel and that “[their] office made [an] effort to confirm the deposition,” the affirmation fails to specify the mode of communications, by whom or to whom the communications were made, whether any messages were left, and whether counsel followed up with the attempt to confirm the deposition (see 22 NYCRR 202.7[a], [c] … . Servan v ES Bldrs. Group LLC, 2025 NY Slip Op 05184, First Dept 9-25-25

Practice Point: Consult this decision for the required contents of plaintiff’s counsel’s “affirmation of good faith” detailing efforts to resolve the issues with defendant’s counsel before moving to strike an affirmative defense. Here the affirmation was deemed deficient, requiring denial of the motion.

 

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DEFENDANT AND A WITNESS SAID THE LIGHT WAS RED, PLAINTIFF SAID THE LIGHT WAS GREEN, SUMMARY JUDGMENT IS PRECLUDED, CREDIBILTY CANNOT BE CONSIDERED (FIRST DEPT).

The First Department, reversing Supreme Court in this intersection bicycle-vehicle accident case, reminds us that credibility plays no role in a summary judgment ruling. Plaintiff, the bicyclist, alleged he entered the intersection with a green light. Defendant and a witness alleged plaintiff entered the intersection against a red light. The conflicting evidence required denial of defendants’ motion for summary judgment:

The parties’ conflicting versions of how the accident occurred preclude summary judgment … . It is well settled that a “court’s role in deciding a motion for summary judgment is issue finding, not issue determination. . . . Moreover, [i]t is not the court’s function on a motion for summary judgment to assess credibility” … . Plaintiff’s version of events “is not incredible as a matter of law, and the different versions of the facts submitted by the parties raise[ ] credibility questions for a jury to resolve” … . Wachtel v Alan Joel Communications, Inc., 2025 NY Slip Op 05053, First Dept 9-23-25

Practice Point: Credibility plays no role at the summary judgment stage.

 

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TO DEFEAT A CPLR 3215(C) MOTION TO DISMISS AN ACTION AS ABANDONED, “SUFFICIENT CAUSE” FOR A DELAY IN MAKING A MOTION FOR A DEFAULT JUDGMENT MUST BE DEMONSTRATED, NOT THE CASE HERE; THE DISSENTERS ARGUED PARTICIPATION IN THE LITIGATION PROCEEDINGS WITH RESPECT TO OTHER PARTIES DEMONSTRATED THERE WAS NO INTENT TO ABANDON THE ACTION; THE MAJORITY REJECTED THE DISSENTERS’ ARGUMENT, IN PART BECAUSE IT WAS NOT RAISED BELOW (FIRST DEPT).

The First Department, reversing Supreme Court, determined the NYC Department of Housing Preservation and Development’s (HPD’s) motion to dismiss the action against it by defendant Cliffcrest as abandoned should have been granted. The two dissenters relied on an argument not raised in Supreme Court:

The motion court should have granted HPD’s motion to dismiss the action against it as abandoned under CPLR 3215(c) … . The record does not support a finding that Cliffcrest “[took] proceedings” for entry of a judgment within one year of HPD’s default within the meaning of CPLR 3215(c) and Cliffcrest fails to provide sufficient cause for the delay, as required by the rule. Cliffcrest waited over five years to seek a default judgment against HPD. None of the “proceedings” it cites — Cliffcrest’s responding to discovery requests, engaging in motion practice, and participating in settlement negotiations — was directed at, or pertinent to, the entry of a default judgment against HPD. Nor does Cliffcrest show that it took any relevant proceedings within one year after HPD defaulted.

The dissent relies on an argument not raised. Specifically, Cliffcrest does not contend that it demonstrated “sufficient cause . . . why the complaint should not be dismissed” (CPLR 3215[c]). Instead, Cliffcrest emphasizes that the proceedings demonstrated a lack of intent to abandon its claims. CPLR 3215(c)’s reference to “abandon[ment],” however, is merely descriptive of the statute’s purpose (see id. [“dismiss[al] of the complaint as abandoned”]). Cliffcrest’s general showing of lack of abandonment is therefore insufficient to prevent dismissal when not tethered to the “sufficient cause” provision as a source of authority. Otherwise, and as noted, Cliffcrest unpersuasively argues that the general litigation activities qualified as “proceedings for the entry of judgment” even though none of the proceedings identified occurred within one year of HPD’s default and none were directed at a default judgment’s entry. 938 St. Nicholas Ave. Lender LLC v 936-938 Cliffcrest Hous. Dev. Fund Corp., 2025 NY Slip Op 05052, First Dept 9-23-25

Practice Point: Consult this decision for a discussion of the evidence required to defeat a motion to dismiss an action as abandoned.

 

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PLAINTIFFS’ REQUEST FOR SPECIFIED DISCOVERY IN OPPOSITION TO AN “ANTI-SLAPP-LAW” MOTION TO DISMISS SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the request for specified discovery made by plaintiffs with respect to the SLAPP (strategic lawsuits against public petition and participation) defense should have been granted:

… [I]n opposing defendants’ motion to dismiss … , plaintiffs made an alternative request for specified discovery pursuant to CPLR 3211(g)(3). In essence, a CPLR 3211(g) motion is an accelerated summary judgment motion brought in the context of a SLAPP claim … . The statute makes special provision for discovery upon an application by the party opposing the CPLR 3211(g) motion. Such discovery is tailored to aid a party in summoning “facts essential to justify its opposition” to a SLAPP claim (CPLR 3211[g][3]) and thereby show a substantial basis for their claims … .

As required by the statute, plaintiffs made their request for specified discovery under oath and with a detailed list of the depositions they seek in ascertaining who contacted the FBI, who knew what about the investigation, and when (see CPLR 3311[g][3]). Plaintiffs seek to substantiate their theory that defendants themselves instigated the FBI investigation to provide a predicate for the guardianship proceeding.

Supreme Court incorrectly held that the anti-SLAPP law did not apply, but, if it did, plaintiffs had established a substantial basis for their claims on the existing record. The court thus never reached plaintiffs’ alternative request for discovery. The parties did not brief the issue of specified discovery on the appeal. Under these circumstances, we modify Supreme Court’s denial of the motion to dismiss directed at the SLAPP claims and remand the action for discovery under CPLR 3211(g)(3) prefatory to determination of the dismissal motion. Kohler v West End 84 Units LLC, 2025 NY Slip Op 05042, First Dept 9-23-25

Practice Point: CPLR 3311[g][3] provides for discovery in the face of a motion to dismiss pursuant the anti-SLAPP statute. Here the judge’s failure to grant the discovery request required remittal.

 

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VIDEOTAPED INTERVIEWS OF RESPONDENT FATHER’S CHILDREN LED TO CRIMINAL SEXUAL ABUSE CHARGES AGAINST FATHER WHICH WERE DISMISSED BECAUSE OF A LACK OF WITNESS COOPERATION; THE VIDEOTAPED INTERVIEWS ARE NOT SUBJECT TO THE SEALING REQUIREMENT IN THE CRIMINAL PROCEDURE LAW AND CAN BE USED IN A FAMILY COURT PROCEEDING ALLEGING SEXUAL ABUSE BY FATHER (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gonzalez, determined that videotaped interviews respondent father’s children by the Manhattan Child Advocacy Center (CAC) are not subject to sealing under Criminal Procedure Law (CPL)  160.50 and therefore can be presented in a Family Court proceeding brought by the Administration for Children’s Services (ACS) alleging sexual abuse by father. The related criminal charges against father had been dismissed because of a lack of witness cooperation:

The argument advanced by ACS and the attorney for the children, which analogizes the CAC videos to 911 recordings, is persuasive. This Court has held that 911 calls are not official records within the meaning of CPL 160.50, as the 911 system serves a broader purpose than solely relating to criminal arrests and prosecutions … . Similar to a 911 call, which is handled by the NYPD and may or may not lead to a police response and criminal proceeding, a forensic interview at CAC is an initial information-gathering process, not inherently tied to any arrest or prosecution that may follow.

The recorded interviews of the children, in which they gave their own accounts of the father’s actions to an independent forensic interviewer, did not contain any information about the father’s arrest or discontinued prosecution. Sealing the videotaped interviews would undermine the CAC and multidisciplinary model. Although we recognize that there is a delicate balance between the compelling need to protect the welfare of children and the right of criminal defendants to be free from the stigma of an unsustained prosecution, CPL 160.50 should not be used to override the truth-finding and child-protective missions of the Family Court. Leah W. v Keith W., 2025 NY Slip Op 05041 First Dept 9-23-25

Practice Point: Videotaped interviews of father’s children by CAC led to criminal sex abuse charges against father which were dismissed. The videotaped interviews are not “official records and papers” subject to the sealing requirements in CPL 160.50 and therefore are available for use in related Family Court proceedings against father.

 

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THE DEFENDANT HOSPITAL, CREMATORY AND FUNERAL CHAPEL RELIED IN GOOD FAITH ON THE INFORMATION AND DOCUMENTS PROVIDED BY DECEDENT’S DOMESTIC PARTNER; PLAINTIFFS, DECEDENT’S ADULT CHILDREN, RAISED NO OBJECTION TO THE ARRANGEMENTS MADE BY THE DOMESTIC PARTNER UNTIL A MONTH AFTER DEATH; THE “INFRINGEMENT OF RIGHTS OF SEPULCHER” ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this “infringement of rights of sepulcher” proceeding should have been granted. The defendant hospital, crematory (Greenwood) and funeral chapel (Ackerman) relied in good faith on information provided by the decedent’s “alleged domestic partner,” Ms. Taddeo. Plaintiffs, the adult children of the decedent, had been informed of decedent’s death but did not communicate with defendants until a month later, after the cremation:

“No cemetery organization, business operating a crematory, natural organic reduction facility, or columbarium, funeral director, undertaker, embalmer or funeral firm shall be held liable for actions taken reasonably and in good faith to carry out the directions of a person who represents that he or she is entitled to control of the disposition of remains, provided that such action is taken only after requesting and receiving written statement that such person . . . is the designated agent of the decedent designated in a will or written instrument executed pursuant to this section (Public Health Law § 4201[7], [a]).”

Furthermore, Ackerman and Greenwood were entitled to rely on cremation authorizations complying with section 4201(7) … . Ms. Taddeo, identifying herself as the decedent’s next of kin, provided a valid cremation authorization to both Ackerman and Greenwood instructing that his remains be cremated.

Neither Ackerman nor Greenwood had reason to question Ms. Taddeo’s status as the decedent’s domestic partner. Under Public Health Law § 4201(7), there is no affirmative duty to investigate absent “incomplete or suspicious documents or other information that would cast doubt upon an individual’s authority to control a decedent’s remains” … . There were no such red flags here. Ms. Taddeo represented herself to defendants as the decedent’s domestic partner, readily provided the decedent’s personal information, including his social security number, his date of birth, and his parents’ names, and there were no objections made by plaintiffs to Ms. Taddeo’s authority at the time of the decedent’s death. Felton v St. Joseph Hosp., 2025 NY Slip Op 05014, First Dept 9-18-25

Practice Point: Consult this decision for a rare discussion of the “rights of sepulcher.”​

 

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RENEW THE MOTION TO DISMISS THE INDICTMENT WHEN ADDITIONAL GRAND JURY TESTIMONY WAS RELEASED TO THE DEFENSE BECAUSE THE JUDGE HAD REVIEWED THE ENTIRE GRAND JURY MINUTES BEFORE DENYING THE MOTION; TWO-JUSTICE DISSENT ARGUED THE MOTION COURT WOULD HAVE BENEFITTED FROM ANOTHER ARGUMENT BASED ON THE NEWLY RELEASED EVIDENCE (FIRST DEPT).

The First Department, affirming defendant’s conviction over a two-justice dissent, determined defense counsel was not ineffective for failing to renew the defense motion to dismiss the indictment after additional grand jury testimony was released. The majority concluded there was no new evidence to support a motion to renew because the judge reviewed all the grand jury testimony before denying the motion to dismiss. The dissenters argued there was insufficient evidence defendant shared the intent of the shooter and the motion court would have benefitted from another argument where defense counsel raised the newly released grand jury evidence:

“There can be no denial of effective assistance of counsel arising from counsel’s failure to make a motion or argument that has little or no chance of success” … . Defendant cannot demonstrate that a motion to renew would have had any likelihood of success because defendant had previously moved to dismiss the indictment and the court had denied the motion after conducting an in camera review of the grand jury minutes, which included the witness’s grand jury testimony that was subsequently provided to defendant’s counsel. Thus, the court had already determined that the evidence presented before the grand jury, including the witness’s testimony, established a legally sufficient prima facie case.

Moreover, a motion for renewal “must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made available to the court” … . Although the grand jury minutes were not available to defendant’s counsel at the time the motion to dismiss was filed, the court conducted a review of the complete grand jury minutes and then denied dismissal of the indictment. Consequently, there were no additional material facts upon which defendant’s counsel could have based a motion to renew, as the witness’s grand jury testimony was already known to the court in its entirety. Therefore, defendant’s counsel’s failure to file such a motion was insufficient to render his performance ineffective under both the state and federal standards … . People v Williams, 2025 NY Slip Op 05016, First Dept 9-18-25

Practice Point: Here the majority determined a motion to renew the motion to dismiss the indictment based on grand jury testimony released after the motion argument had little chance of success because the judge had reviewed all the grand jury evidence before denying the motion. The dissenters argued the judge would have benefitted from a second argument based on the newly released testimony, and therefore defense counsel was ineffective for failing move to renew.

 

THE 2022 AMENDMENT TO DOMESTIC RELATIONS LAW 111 REQUIRING CONSENT TO ADOPTION BY A NONMARITAL FATHER WHO HAS ACKNOWLEDGED PATERNITY APPLIES RETROATIVELY; TERMINATION OF PARENTAL RIGHTS REVERSED (FIRST DEPT).​

The First Department, in a full-fledged opinion by Justice O’Neill Levy, reversing Family Court, vacating the termination of respondent father’s parental rights, determined the 2022 amendment of Domestic Relations Law section 111 requiring consent for adoption by a nonmarital parent who has acknowledged paternity applied retroactively to this proceeding:

Domestic Relations Law § 111 was amended, effective December 30, 2022. Pursuant to section 111(1)(e)(iv), and subject to certain criteria, it now requires consent for adoption by any nonmarital parent who has executed an unrevoked acknowledgement of parentage or filed an unrevoked notice of intent to claim parentage of a child. The amendment did away with the necessity for some parents with children in foster care to establish that in addition to having visited or regularly communicated with the child that they made payments to the foster care agency caring for the child. The legislature acknowledged that this requirement resulted in noncompliant or unknowing parents permanently losing their parental rights by being relegated to receiving only notice of the termination proceedings …. This amendment went into effect three years after Family Court’s July 2019 determination that respondent father was solely entitled to notice that the agency was seeking to terminate parental rights to free the child for adoption but before the May 2023 dispositional order was issued. * * *

Generally, a statute “will not be given retroactive construction unless an intention to make it so can be deduced from its wording” … . A legislative directive that a law shall “take effect immediately,” coupled with the remedial nature of the amendment, indicates a “‘sense of urgency'” that should be effectuated through retroactive application … . The purpose of remedial statutes is to correct imperfections in prior law by giving relief to an aggrieved party … , to the extent that they do not impair vested rights or bestow additional rights … . As the express purpose of the amendment at issue was to correct how the law applied to nonmarital parents and was “effective immediately,” we find that it should be given retroactive effect. Matter of C.C. v D.C., 2025 NY Slip Op 05017, First Dept 9-18-25

Practice Point: Consult this decision for a concise analysis of the criteria for retroactive application of a statutory amendment.

 

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