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THE ORAL COLLOQUY FOR THE WAIVER OF APPEAL WAS DEFECTIVE; THE DEFECT WAS NOT CURED BY THE WRITTEN WAIVER BECAUSE DEFENDANT WAS NOT ASKED WHETHER HE READ OR UNDERSTOOD IT BEFORE SIGNING; DEFENDANT DID NOT ADMIT TO HAVING AN INTENT TO COMMIT A CRIME WHEN HE ENTERED THE HOUSE, HE ADMITTED ONLY THE INTENT TO RETRIEVE HIS OWN PROPERTY; THE PLEA TO BURGLARY WAS VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant’s waiver of appeal was invalid and he did not admit to an essential element of burglary, the intent to commit a crime upon entering:

… [W]e agree with defendant that his waiver of the right to appeal is invalid. Supreme Court’s oral colloquy was overbroad inasmuch as the court told defendant that his waiver of the right to appeal marks the “end of the case.” Although the record establishes that defendant executed a written waiver of the right to appeal, the written waiver “does not cure the deficient oral colloquy because the court did not inquire of defendant whether he understood the written waiver or whether he had read the waiver before signing it” … .

Defendant contends that his plea is invalid because the plea allocution negated an element of the crime to which he pleaded guilty. As defendant acknowledges, he never moved to withdraw his plea, nor did he ever seek to vacate the judgment of conviction. This case, however, falls within the rare exception to the preservation requirement … . Burglary in the first degree requires that a person knowingly enter or remain unlawfully in a dwelling with the “intent to commit a crime therein” (Penal Law § 140.30). Here, defendant twice indicated during his factual allocution that he did not intend to commit any crimes when he entered the house in question and, while he admitted that he intended to retrieve his own property, retrieving one’s own property does not establish larcenous intent … . Although the court attempted to conduct an inquiry following defendant’s insistence that he did not intend to commit any crimes when he entered the house, such inquiry was insufficient … . The court therefore erred in accepting defendant’s guilty plea … . People v Small, 2026 NY Slip Op 03560, Fourth Dept 6-5-26

Practice Point: Re: a waiver of appeal, a defect in the oral appeal-waiver colloquy with the judge is not cured by a written waiver unless the defendant is asked whether he read and understood the written waiver before signing it.

Practice Point: Entering a home with the intent to retrieve one’s own property is not “burglary” because the entry was not accompanied by an intent to commit a crime.

 

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HERE THE VILLAGE SOUGHT TO ANNUL THE CITY’S IMPOSITION OF HIGHER SEWER CHARGES; THE CITY INTERPOSED SEVERAL COUNTERCLAIMS THAT WERE BASED ON THEORIES NOT INCLUDED IN THE CITY’S EARLIER NOTICE OF CLAIM WHICH ALLEGED ONLY BREACH OF CONTRACT; BECAUSE THE COUNTERCLAIMS RAISED THEORIES NOT ENCOMPASSED BY THE CITY’S EARLIER NOTICE OF CLAIM, THEY WERE DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined all of the city’s counterclaims against the village should have been dismissed for failure to meet the “notice of claim” requirements. The village commenced this hybrid CPLR article 78 and declaratory judgment action seeking to annul the city’s determination to charge a higher rate for sewer services than had been charged under the parties “longtime agreement.” The city interposed counterclaims based on theories not encompassed by the city’s notice of claim. All the counterclaims should have been dismissed on that ground:

“CPLR 9802 sets forth the procedure by which certain actions against villages may be maintained” … . “In addition to providing for the maintenance of contract actions against villages, the statute also provides, in pertinent part, that ‘no other action shall be maintained against [a] village unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless a notice of claim shall have been made and served in compliance with [General Municipal Law § 50-e]’ ” …). Consequently, “[i]t is a condition precedent to, and indeed an essential element of, any cause of action . . . against a village that the [claimant] have served upon the village a notice of claim setting forth, inter alia, the nature of the claim and the items of damage or injuries claimed to have been sustained” … . “A claimant need not state a precise cause of action in haec verba in a notice of claim . . . , but a claimant may not raise in the [pleading] causes of action or legal theories that were not directly or indirectly mentioned in the notice of claim and that change the nature of the earlier claim or assert a new one” … . Furthermore, “the requirements of notice of claim statutes[, including CPLR 9802,] apply to the filing of counterclaims” … . “[T]he notice of claim requirements of CPLR 9802 [also] apply to . . . causes of action [or claims] for declaratory relief” … .

Here, the notice of claim was premised exclusively on the theory that the City was entitled to monetary damages and a declaratory judgment based on the Village’s alleged breach of the parties’ agreement. Conversely, the City’s first counterclaim seeks a declaration that the agreement had actually expired before the breach alleged in the notice of claim, and the third counterclaim seeks monetary damages for debt allegedly incurred by the Village after the purported expiration of the agreement. The fourth and fifth counterclaims for quantum meruit and unjust enrichment, respectively, are also premised on legal theories other than breach of contract. We thus conclude that those counterclaims improperly raise claims or legal theories “that were not directly or indirectly mentioned in the notice of claim and that change the nature of the earlier claim[s] or assert . . . new one[s]” … . Village of Allegany v City of Olean, 2026 NY Slip Op 03555, Fourth Dept 6-5-26

Practice Point: A condition precedent to an action against a village is the filing of a notice of claim. The condition applies to counterclaims and requests for declaratory judgments. Here the city’s earlier notice of claim against the village was based solely on an alleged breach of contract. The subsequent counterclaims raised by the city in response to the village’s Article 78 proceeding were based on theories not encompassed by the city’s earlier notice of claim and were dismissed on that ground.

 

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MOTHER DEMONSTRATED THE SCHOOL DISTRICT HAD TIMELY ACTUAL KNOWLEDGE OF THE FACTS UNDERLYING THE ALLEGATION THE SCHOOL DISTRICT WAS NEGLIGENT IN ADDRESSING THE BULLYING OF HER SON; MOTHER’S APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined claimant-mother demonstrated the school district had timely knowledge of the underlying facts of the potential negligence action against the district stemming from the bullying of her son. In addition, mother had a valid excuse for failing to file a timely notice of claim, i.e., she was involved in related Family Court proceedings against her son. Mother’s application for leave to file a late notice of claim should have been granted:

“General Municipal Law § 50-e (5) permits a court, in its discretion, to [grant leave] extend[ing] the time for a [claimant] to serve a notice of claim” (id. at 460-461). “The decision whether to grant such leave ‘compels consideration of all relevant facts and circumstances,’ including the ‘nonexhaustive list of factors’ in section 50-e (5)” … . ” ‘It is well settled that key factors for the court to consider in determining an application for leave to serve a late notice of claim are [1] whether the claimant has demonstrated a reasonable excuse for the delay, [2] whether the [school district] acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter, and [3] whether the delay would substantially prejudice the [school district] in maintaining a defense on the merits’ ” … . “The presence or absence of any given factor is not determinative of the application and, moreover, the factors are ‘directive rather than exclusive’ ” … .

We agree with claimant that respondent possessed actual knowledge of the essential facts constituting the claim within 90 days of its accrual …  Claimant averred in her affidavit in support of the application that, during the relevant time period, she made numerous calls to the Waterloo Middle School and the Waterloo Village Police about the ongoing abuse and bullying of her son. Additionally, claimant submitted documentation pertaining to a Family Court proceeding that was brought against her son due to actions he took apparently out of his frustration with the alleged abuse and bullying. The documentation states that the school counselor was involved in that investigation and that claimant’s son was “well known” to him. The school counselor also expressed the opinion that the bullying incidents were “unfounded.” Cindy W. v Waterloo Cent. Sch. Dist., 2026 NY Slip Op 03554, Fourth Dept 6-5-26

Practice Point: Here, demonstrating that the school district had timely actual knowledge of the facts underling a negligence allegation against the district was a major factor in granting the application tor leave to file a late notice of claim.​

 

HERE IN THIS PERSONAL INJURY ACTION, BASED ON PLAINTIFF’S ALLEGATION HE WAS AN INDEPENDENT CONTRACTOR WORKING FOR THE INSURED EMPLOYER, THE INSURER WAS OBLIGATED TO DEFEND THE EMPLOYER; INSTEAD THE INSURER DISCLAIMED COVERAGE AND PLAINTIFF TOOK A DEFAULT JUDGMENT AGAINST THE EMPLOYER; ON APPEAL, THE INSURER WAS FOUND LIABLE FOR THE DEFAULT JUDGMENT UP TO THE POLICY LIMITS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant insurer was obligated to defend plaintiff’s personal injury action against plaintiff’s employer, Lipinski. Plaintiff alleged he was an independent contractor. The insurer disclaimed coverage on the ground plaintiff was an employee entitled to workers’ compensation. But, because of plaintiff’s allegation he was an independent contractor, the insurer was obligated to defend: The insurer was therefore obligated to pay the damages assessed in the default judgment against Lipinski up to the policy limits:

An insurer’s “duty to defend is exceedingly broad and an insurer will be called upon to provide a defense whenever the allegations of the complaint suggest . . . a reasonable possibility of coverage” … . “If, liberally construed, the claim is within the embrace of the policy, the insurer must come forward to defend its insured no matter how groundless, false or baseless the suit may be” … . Here, the complaint in the underlying personal injury action alleged that plaintiff was an employee of Lisinski but also included the alternative allegation that plaintiff was an independent contractor. Thus, defendant was required at least to provide Lisinski with a defense … . Instead, defendant disclaimed coverage on the ground, inter alia, that plaintiff was an employee and therefore a policy exclusion precluded coverage inasmuch as plaintiff would be covered by a workers’ compensation claim. * * *

An insurer’s “duty to defend is exceedingly broad and an insurer will be called upon to provide a defense whenever the allegations of the complaint suggest . . . a reasonable possibility of coverage” … . “If, liberally construed, the claim is within the embrace of the policy, the insurer must come forward to defend its insured no matter how groundless, false or baseless the suit may be” … . Here, the complaint in the underlying personal injury action alleged that plaintiff was an employee of Lisinski but also included the alternative allegation that plaintiff was an independent contractor. Thus, defendant was required at least to provide Lisinski with a defense … . Instead, defendant disclaimed coverage on the ground, inter alia, that plaintiff was an employee and therefore a policy exclusion precluded coverage inasmuch as plaintiff would be covered by a workers’ compensation claim. Shattuck v Dryden Mut. Ins. Co., 2026 NY Slip Op 03538, Fourth Dept 6-5-26

Practice Point: Consult this decision for insight into the risks taken by an insurer which wrongfully refuses to defend the insured and disclaims coverage. Plaintiff procured a default judgment against the insured and sued the insurer directly. The insurer was liable for the default judgment up to the policy limits.

 

EVIDENCE THAT THE A-FRAME LADDER WAS NOT SECURED AND WAS “IMPROPERLY PLACED” WARRANTED SUMMARY JUDGMENT IN THIS LADDER-FALL CASE ON THE LABOR LAW 240(1) CAUSE OF ACTION; THERE IS NO NEED TO DEMONSTRATE THE LADDER WAS DEFECTIVE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent which argued there are triable issues of fact, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this A-frame ladder-fall case. The court noted that plaintiff need not demonstrate the ladder was defective. It is sufficient to demonstrate the ladder was not secured and was “improperly placed:”

To establish a prima facie case of liability under Labor Law § 240 (1), a plaintiff must ” ‘show that the statute was violated and that the violation proximately caused [the] injury’ ” … . “Where a ladder is offered as a work-site safety device, it must be sufficient to provide proper protection. It is well settled that [the] failure to properly secure a ladder, to ensure that it remain[s] steady and erect while being used, constitutes a violation of Labor Law § 240 (1)” … . “[T]he fact that the ladder failed and [that the] plaintiff fell to the ground demonstrates that it was not so placed . . . as to give proper protection to [the plaintiff]” ( … “Evidence that the ladder was structurally sound and not defective is not relevant on the issue of whether it was properly placed” … ).

Here, plaintiff met his initial burden on the motion by submitting his deposition testimony wherein he testified that [an] … employee [of the lessor of the property] covered the ladder’s feet with socks [to protect the tile floor], that [the employee] instructed plaintiff to use the modified ladder, and that the socks caused the ladder to slide and plaintiff to fall. Plaintiff’s unrebutted testimony established that “the statute was violated and that the violation proximately caused his injury” … . Delisle v FBBT/US Props., LLC, 2026 NY Slip Op 03529, Fourth Dept 6-5-26

Practice Point: In this ladder-fall case, the unsecured ladder was not defective. Rather it was deemed “improperly placed” warranting summary judgment. It was alleged that socks placed over the feet of the ladder to protect the tile floor caused the ladder to slide.

 

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A HEARING ON A DEFENDANT’S ELIGIBILITY FOR AN ALTERNATIVE SENTENCE PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) CANNOT BE WAIVED AS A CONDITION OF A PLEA AGREEMENT; SENTENCE VACATED AND MATTER REMITTED (FOURTH DEPT). ​

The Fourth Department, vacating defendant’s sentence and remitting the matter, determined defendant’s waiver of a hearing on whether he was eligible for an alternative sentence pursuant to the Domestic Violence Survivors Justice Act (DVSJA) was invalid:

Defendant appeals from a judgment convicting him, upon his plea of guilty, of two counts of manslaughter in the first degree (Penal Law § 125.20 [1]). As a condition of his plea, defendant waived his right to a Penal Law § 60.12 hearing to determine his eligibility for an alternative sentence under the Domestic Violence Survivors Justice Act. Inasmuch as “section 60.12 hearings are not waivable as a condition of a plea agreement” … , we agree with defendant that this matter must be remitted for further proceedings, including a Penal Law § 60.12 hearing should defendant request one … . We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for further proceedings…. . People v Jones, 2026 NY Slip Op 03527, Fourth Dept 6-5-26

Practice Point: A defendant cannot waive a hearing on eligibility for an alternative sentence pursuant to the DVSJA as a condition of a plea agreement. Here defendant’s sentence was vacated and the matter was remitted for a hearing if defendant requests it.

 

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ALL PARTIES AGREE THE TWO SURROGACY AGREEMENTS ARE UNENFORCEABLE; MATTER REMITTED FOR A HEARING TO DETERMINE PARENTAGE BASED ON THE INTENT OF THE PARTIES AND THE BEST INTERESTS OF THE CHILDREN (FOURTH DEPT).

The Fourth Department, reversing (modifying) Family Court, determined that both surrogacy agreements were unenforceable and the parentage determination should not have been made without a hearing on the intent of the parties and the best interests of the children:

… [T]here is no real dispute that neither surrogacy agreement meets the material requirements of Family Court Act article 5-C. The original surrogacy agreement is unenforceable because it was not signed by Robert (see Family Ct Act § 581-403 [a] [1]; [d]; see also § 581-402 [b] [3]). The second agreement is unenforceable because it was not executed prior to “the commencement of medical procedures in furtherance of embryo transfer” (§ 581-403 [b]). Thus, the court was required to determine parentage “based on the intent of the parties, taking into account the best interests of the child[ren]” (§ 581-407).

… [A]ll three parties to the second surrogacy agreement—Mary, Robert and the Surrogate—agree that their intent was for Mary and Robert to be the children’s parents, and none of them contemplated anyone else becoming a parent. … [O]n this record the court failed to give due consideration to the best interests of the children as required by the statute (see Family Ct Act § 581-407; see also § 581-701 …). We therefore reverse the … judgment of parentage, and we remit the matter to Family Court to hold an immediate hearing at which the court, in making its parentage determination, must consider evidence of the intent of the parties, taking into account evidence pertaining to the best interests of the children. Matter of Baby A. (Mary B.L.–Robert A.L.), 2026 NY Slip Op 02759, Fourth Dept 5-1-26

Practice Point: Consult this decision for insight into how a court should handle determining parentage where the surrogacy agreements are unenforceable.

 

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LAW OFFICE FAILURE DEEMED AN ADEQUATE EXCUSE FOR A DEFAULT IN RESPONDING TO A SUMMARY JUDGMENT MOTION; TWO JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined that law office failure was an adequate excuse for plaintiffs’ default in responding to defendant’s motion for summary judgment in this traffic accident case:

… [P]laintiffs proffered a reasonable excuse of law office failure for the brief delay in serving their opposition papers to defendant’s motion (see CPLR 2005…). Although plaintiffs’ counsel admittedly failed to properly calendar the motion opposition date, counsel did attempt to seek defendant’s consent for an adjournment prior to the return date of the motion, which plaintiffs’ counsel apparently believed to be the due date for the opposition to defendant’s motion. Further, plaintiffs’ counsel submitted opposition papers on the return date, albeit after business hours, upon the mistaken belief that the motion was to be taken on submission. There is no evidence of a willful default and the negligible delay cannot be said to have prejudiced defendant … . April I.O. v Taylor, 2026 NY Slip Op 02741, Fourth Dept 5-1-26

Practice Point: Consult this decision for a rare instance of law office failure serving as an adequate excuse for a default in responding to a motion for summary judgment.

 

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THE JUDGE DID NOT HAVE A DISTINCT AND PROPER REASON TO DEMAND THE WAIVER OF DEFENDANT’S RIGHT TO APPEAL; IT APPEARS THE JUDGE WAS TRYING TO SHIELD THE DENIAL OF SUPPRESSION FROM APPELLATE REVIEW; THE POLICE OFFICERS WHO APPROACHED DEFENDANT BASED UPON AN ANONYMOUS TIP HAD ONLY THE COMMON LAW RIGHT OF INQUIRY; THE EVIDENCE DEFENDANT CONSENTED TO THE PAT DOWN SEARCH WAS INSUFFICIENT; SUPPRESSION SHOULD HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined defendant’s waiver of appeal was invalid and defendant’s motion to suppress the evidence seized from his person should have been granted:

Here, the consent of the People to the plea agreement was not required because the charges remained as presented (see CPL 220.10 [2]) and, thus, the People were not in a position to demand a waiver of defendant’s right to appeal nor was such a waiver—or any other plea condition—necessary to secure the People’s consent … . It follows, then, that the court’s demand of an appeal waiver, particularly as viewed in light of defendant’s expressed desire to seek appellate review of the court’s suppression ruling, “gives rise to the appearance that the court [was] seeking to shield its decisions from appellate review or otherwise act[ing] as an advocate for the People” and, therefore, “we must look to the record as a whole to determine whether there is a distinct and proper reason for the court’s demand” … . * * *

Upon our review of the record …, including defense counsel’s unrefuted assertion that the court unilaterally demanded an appeal waiver that would foreclose appellate review of its determination of defendant’s suppression motion as a condition of the court-initiated plea agreement, we conclude that it is not apparent that the court had a distinct and proper reason to demand that waiver of defendant’s right to appeal. Therefore, the waiver of the right to appeal is invalid and does not preclude our review of defendant’s contentions. * * *

… [T]he anonymous 911 phone tip generated only a belief that criminal activity was afoot and, as such, limited the officers’ permissible action to a level two common-law right of inquiry … . * * *

Inasmuch as the People failed to present evidence at the suppression hearing establishing defendant’s voluntary consent to the search of his person, all physical evidence seized as a result of that consent “should have been suppressed” … . People v Turner, 2026 NY Slip Op 02557, Fourth Dept 4-24-26

Practice Point: Where the defendant pleads to the charges and there is no need for the People’s consent, the sentencing judge must have a distinct and proper reason to demand that defendant waive his right to appeal, absent here.

 

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ONLY THE CHIEF ADMINISTRATOR OF THE COURTS HAS THE POWER TO APPOINT CHIEF CLERKS AND DEPUTY CHIEF CLERKS OF THE SURROGATE’S COURTS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the Chief Administrator of the Courts, not the Surrogate’s Courts, has the power to appoint Chief Clerks and Deputy Chief Clerks of the Surrogate’s Courts:

Although the Chief Clerks and Deputy Chief Clerks of the Surrogates’ Courts possess significant authority, we agree with defendant that they are, nevertheless, nonjudicial officers. The Chief Clerks, for example, have the authority to sign papers or records of the courts, to adjourn matters, to administer oaths, to supervise disclosure and, in certain circumstances, to hear and report matters to the Surrogates (see SCPA 506 [6] [a]; 2609). Such responsibilities, however, are akin to those of referees (see SCPA 506; CPLR 4201), which are themselves “nonjudicial officers of the court appointed to assist it in the performance of its judicial functions” (… see generally CPLR 4312 [5] …). Thus, given the “nature of the position[s],” we agree with defendant that the Chief Clerks and Deputy Chief Clerks of the Surrogates’ Courts are nonjudicial positions and, “[a]s such, they are subject to the constitutional appointment power of the Chief Administrator, notwithstanding [article 26 of the Surrogate’s Court Procedure Act]. Since the appointment powers of the Chief Administrator flow from the State Constitution, they cannot be abrogated by statute” … . Mosey v Office of Ct. Admin., 2026 NY Slip Op 02538, Fourth Dept 4-24-24

 

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