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ALTHOUGH THE JUDGE DID NOT COMMIT TO CONCURRENT SENTENCES, THE PLEA AGREEMENT CONTEMPLATED CONCURRENT SENTENCES AND THE JUDGE’S STATEMENTS CREATED CONFUSION ON THE ISSUE; IN THE INTEREST OF JUSTICE, AND TAKING INTO ACCOUNT THE CONTENTS OF THE PRESENTENCE REPORT, THE CONSECUTIVE SENTENCES WERE VACATED AND CONCURRENT SENTENCES WERE IMPOSED (THIRD DEPT).

The Third Department, directing that defendant’s sentences be served concurrently, not consecutively, determined that the plea agreement contemplated the imposition of concurrent sentences and the judge’s confusing and ambiguous language in the plea colloquy warranted modification of the sentence:

We recognize that the imposition of consecutive sentences was authorized under Penal Law § 70.25 (2) … , and that County Court did not make any express sentencing commitment to defendant. However, the plea agreement contemplated the imposition of concurrent sentences, County Court stated during the plea proceedings that the maximum term of imprisonment defendant faced on a class C violent felony was 15 years, and the court used confusing and ambiguous language during the plea colloquy regarding the possibility of consecutive sentencing … . In light of the confusion, defendant seeks vacatur of his plea or modification of the sentence to reflect a concurrent sentence. On this record, and after accounting for the circumstances set forth in the PSR, we find that the imposition of concurrent sentences is appropriate and modify the judgment accordingly … . People v Bonville, 2026 NY Slip Op 00039, Third Dept 1-8-25

Practice Point: Here it is possible the defendant entered the plea agreement with the understanding that the sentences would run concurrently. Although the judge did not commit to concurrent sentences, the judge’s statements on the issue were confusing and ambiguous. The Third Department, in the interest of justice, after reviewing the presentence report, imposed concurrent sentences.

 

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FOR THE FIRST TIME IN NEW YORK, COUNSEL WAS SANCTIONED IN THE AMOUNT OF $5000 FOR SUBMITTING AI-GENERATED BRIEFS CITING 23 “FAKE” DECISIONS; IN ADDITION, COUNSEL AND HIS CLIENT WERE EACH SANCTIONED IN THE AMOUNT OF $2500 FOR FILING A FRIVOLOUS APPEAL (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Fisher, in a matter of first impression, determined (1) counsel for the defendant in this foreclosure action should be sanctioned for submitting appellate briefs generated by AI which cited 23 “fake” appellate decisions, and (2) counsel for the defendant and the defendant should be sanctioned for filing a frivolous appeal: Defendant’s counsel was sanctioned in the amount of $5000 for the AI generated briefs and $2500 for the frivolous appeal. Defendant was sanctioned in the amount of $2500 for the frivolous appeal:

… [R]ecognizing this as the first appellate-level case in New York addressing sanctions for the misuse of GenAI, we find the imposition of a monetary sanction on defense counsel Joshua A. Douglass in the amount of $5,000 to be appropriate under the circumstances, with the further goal of deterring future frivolous conduct by defendant and the bar at large … . To be clear, attorneys and litigants are not prohibited from using GenAI to assist with the preparation of court submissions. The issue arises when attorneys and staff are not sufficiently trained on the dangers of such technology, and instead erroneously rely on it without human oversight. As with the work from a paralegal, intern or another attorney, the use of GenAI in no way abrogates an attorney’s or litigant’s obligation to fact check and cite check every document filed with a court. To do otherwise may be sanctionable, depending on the facts and particular circumstances of each case. * * *

Although defense counsel signed the papers filed with this Court …, it is … not unnoticed that the metadata of numerous documents indicate they originated from a program in his client’s name. Such result would be consistent with defendant filing papers pro se before Supreme Court, and defense counsel’s apparent unfamiliarity during oral argument with certain papers he allegedly filed during the pendency of this appeal. Given the baseless nature of this appeal, and recognizing that sanctions must be goal oriented to deter future conduct to prevent the waste of judicial resources and continued vexatious litigation of specific individuals too … , we conclude that an additional sanction of $2,500 shall be imposed on defense counsel … and $2,500 shall be imposed on defendant … for pursing this appeal. Deutsche Bank Natl. Trust Co. v LeTennier, 2026 NY Slip Op 00040, Third Dept 1-8-25

Practice Point: For the first time in New York an attorney was sanctioned for submitting AI-generated briefs which cited “fake” decisions.

Practice Point: Here both counsel and his client were sanctioned for filing a frivolous appeal. It was clear that the client played a role in creating the AI-generated briefs.

 

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WHETHER FAMILY COURT HAD JURISDICTION OVER THIS FAMILY OFFENSE PROCEEDING DEPENDED ON WHETHER THERE WAS AN “INTIMATE RELATIONSHIP” BETWEEN PETITIONER AND RESPONDENT; THE EXISTENCE OF AN “INTIMATE RELATIONSHIP” IS A FACT-INTENSIVE INQUIRY WHICH, WHEN IN DISPUTE, REQUIRES A HEARING; MATTER REMITTED FOR THE HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined the judge should have ordered a hearing to determine whether the respondent had an “intimate relationship” with the petitioner such that a family offense proceeding alleging identify theft could be brought by the petitioner against the respondent. Whether an “intimate relationship” exist is a fact-intensive inquiry and when it is in dispute a hearing should be held:

Family Court’s jurisdiction in family offense proceedings, as defined by Family Ct Act § 812 (1), extends to enumerated offenses occurring between members of the same family or household, including those “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” … . While the statute does not define “intimate relationship,” it expressly excludes casual acquaintances and ordinary social or business associations … . In determining whether an intimate relationship exists, courts consider, among other things, “the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship” … . Additionally, “the relationship should be direct [and] not one based upon a connection with a third party” … . Whether an intimate relationship exists is a fact-intensive inquiry to be resolved on a case-by-case basis … . When the existence of an intimate relationship is in dispute, or the record is insufficient to permit determination as a matter of law, Family Court should conduct a hearing before dismissing the petition for lack of jurisdiction … . Matter of McCarra v Chiaramonte, 2025 NY Slip Op 07352, Third Dept 12-31-25

Practice Point: Family Court has jurisdiction over family offense proceedings involving unrelated parties if there exists an “intimate relationship” between the parties. Determining whether there is an “intimate relationship” is a fact-intensive inquiry usually requires a hearing.

 

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IT WAS AN ABUSE OF DISCRETION TO ORDER AN EVIDENTIARY HEARING IN THIS TOXIC TORT CASE; NO FRYE HEARING WAS NECESSARY BECAUSE THE EXPERTS DID NOT USE NOVEL OR EXPERIMENTAL METHODS; NO PARKER HEARING WAS NECESSARY BECAUSE GENERAL AND SPECIFIC CAUSATION WERE ADEQUATELY ADDRESSED IN THE EXPERTS’ SUBMISSIONS AND GENERALLY ACCEPTED METHODS WERE USED (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Ceresa, determined there was no need for a Frye hearing in this toxic tort case because none of the three experts used methods that were novel or experimental. In addition, there was no need for a Parker hearing because the expert’s used generally accepted methods to determine general and specific causation. Therefore ordering the evidentiary hearing was an abuse of discretion:

“The singular purpose of a Frye hearing is to ascertain the reliability of novel scientific evidence by determining whether the methods used to generate such evidence will, when properly performed, produce results accepted as reliable within the scientific community generally” … . ” ‘A court need not hold a Frye hearing where it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony’ ” … . “Absent a novel or experimental scientific theory, a Frye hearing is generally unwarranted” … . * * *

… [U]nder Parker, ” ‘[t]he focus moves from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of the evidence at trial.’ . . . [In toxic tort cases,] [i]t is well-established that an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)” (Parker v Mobil Oil Corp., 7 NY3d at 447-448 …). … [A] s plaintiffs’ [experts’] written submissions … offered the requisite causal links, there was no need for a hearing to determine whether these foundational standards were met. Marpe v Tonoga, Inc., 2025 NY Slip Op 07053, Third Dept 12-18-25

Practice Point: Consult this opinion for insight into when a Frye/Parker hearing is necessary to determine the admissibility of expert evidence in a toxic tort case. The evidentiary hearing had been ordered by the trial judge, but the Third Department held ordering the hearing was an abuse of discretion.

 

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PURSUANT TO THE “HUMANE ALTERNATIVES TO LONG-TERM CONFINEMENT ACT (HALT ACT),” AN INMATE WHO IS FACING SEGREGATED CONFINEMENT HAS A RIGHT TO THE PRESENCE OF COUNSEL AT THE DISPOSITIONAL PHASE OF THE DISCIPLINARY HEARING (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Powers, determined that the incarcerated petitioner had a right to have his attorney present during the dispositional phase of the disciplinary hearing after he was found guilty of possession of a weapon. The Hearing Officer had determined counsel’s presence was “no longer necessary” in violation of the “Humane Alternatives to Long-Term Solitary Confinement Act” (the HALT Act—Correction Law 137):

… [F]ollowing the passage of the HALT Act, Correction Law § 137 provides that an incarcerated individual “shall be permitted to be represented” during a disciplinary hearing that may result in placement in segregated confinement “by any attorney or law student, or” with certain limitations, “any paralegal or incarcerated person” (Correction Law § 137 [6] [l]). The pertinent regulations have since also been amended to specify that “[w]here an incarcerated individual is placed in, or pending possible placement in, segregated confinement pending a disciplinary hearing or superintendent’s hearing, such incarcerated individual shall be permitted to be represented by,” as is relevant here, “an attorney, having good standing, admitted to practice in any state” (7 NYCRR 251-5.2 [a] [1]).

Therefore, pursuant to both statute and regulation, if an incarcerated individual so chooses, he or she is entitled to have representation present during a disciplinary hearing when the permissible sanctions include the imposition of segregated confinement. Contrary to the Hearing Officer’s determination, the dispositional phase is an integral aspect of the disciplinary hearing and the statutory and regulatory right to representation at issue here extends to that phase of the hearing. Matter of Wingate v Martuscello, 2025 NY Slip Op 07048, Third Dept 12-18-25

 

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FAMILY COURT DID NOT PROVIDE FATHER WITH EVERY REASONABLE INFERENCE AND RESOLVE ALL CREDIBILITY ISSUES IN HIS FAVOR WHEN CONSIDERING MOTHER’S MOTION TO DISMISS THE CUSTODY MODIFICATION PETITION AFTER FATHER’S TESTIMONY; ALTHOUGH FATHER DESCRIBED WHAT THE CHILDREN TOLD HIM, SUCH HEARSAY CAN BE ADMISSIBLE IN ABUSE AND NEGLECT PROCEEDINGS; IN ADDITION, THE LINCOLN HEARING, WHICH WAS CANCELLED BY THE JUDGE, COULD HAVE SERVED TO CORROBORATE FATHER’S TESTIMONY; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s motion to dismiss at the close of father’s testimony in this modification of custody proceeding should not have been granted. The judge granted the motion to dismiss because there was no corroboration of father’s testimony which described what the children told him. However the children’s hearsay is admissible when it concerns abuse or neglect.  After dismissing the petition, the court cancelled the scheduled Lincoln hearing  The cancellation compounded the judge’s error because the children’s testimony at a Lincoln hearing can serve to corroborate a parent’s testimony:

The father testified that the children made numerous statements to him describing the mother’s physical discipline of them and detailing the mother’s excessive alcohol consumption. The father also stated that he had observed changes in the children’s behavior, pointing specifically to the older child exhibiting signs of excessive nervousness and both children’s reluctance to return to their mother’s home at the conclusion of his parenting time. “A child’s out-of-court statements are admissible in a Family Ct Act article 6 proceeding when they pertain to abuse or neglect and are sufficiently corroborated” … , and “the hearing court is accorded considerable discretion in determining whether there is sufficient corroboration” … . Notably, “[a] relatively low degree of corroboration is sufficient, and the requirement may be satisfied by any other evidence tending to support the reliability of the child’s statements” … .

We find that Family Court improperly granted the mother’s motion to dismiss as it failed to provide the father with the benefit of every reasonable inference and resolve all credibility issues in his favor … . Of greater concern, given the court’s reason for granting the motion — lack of corroboration of the father’s accusations — it abused its discretion in canceling the Lincoln hearing as “information shared by [the children] during a Lincoln hearing may serve to corroborate other evidence adduced at a fact-finding hearing” … . At the time of the hearing, the children were nine and six years of age and the record is bereft of any indication that the children were unwilling or incapable of participating in the Lincoln hearing. Thus, we remit the matter to Family Court to conduct a Lincoln hearing and any appropriate hearing following same … . Matter of Kalam EE. v Amber EE., 2025 NY Slip Op 07050, Third Dept 12-18-25

Practice Point: Consult this decision for insight into how the evidence presented by the petitioner in a custody modification proceeding should be analyzed in the face of a motion to dismiss, including the admissibility of hearsay presented by the petitioner describing what the children told the petitioner.

Practice Point: Children’s testimony at a Lincoln hearing can serve to corroborate a parent’s testimony. Here it was deemed reversible error for the judge to dismiss the petition after petitioner’s testimony on the ground there was no corroboration of the statements petitioner ascribed to the children while cancelling the Lincoln hearing which could have provided corroboration.

 

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THE MODIFICATION OF CUSTODY PETITION WAS SUFFICIENT TO WITHSTAND THE MOTION TO DISMISS, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing Family Court, determined the maternal grandmother, who has custody of the children, sufficiently alleged a change of circumstances which may warrant an modification of custody such that the children could choose to spend time with the maternal grandfather and the maternal grandmother and grandmother could live together. The petition for modification was based upon the ages of the children (late teens to age of majority) and the grandfather’s extended period of sobriety. The petition was deemed sufficient to withstand a motion to dismiss:

“In any modification proceeding, the threshold issue is whether there has been a change in circumstances since the prior custody order significant enough to warrant a review of the issue of custody to ensure the continued best interests of the children” … . “In assessing whether the petitioner has alleged the requisite change in circumstances, so as to withstand a motion to dismiss for failure to state a claim, Family Court must liberally construe the petition, accept the facts alleged in the petition as true, afford the petitioner the benefit of every favorable inference and resolve all credibility questions in favor of the petitioner” … .

The grandmother sustained this threshold burden. Matter of Christine X. v James Y., 2025 NY Slip Op 07060, Third Dept 12-18-25

Practice Point: Consult this decision for the analytical criteria for assessing whether a petition for a modification of custody is sufficient to withstand a motion to dismiss.

 

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UNDER THE LIEN LAW, THE GENERAL CONTRACTOR IN A FAILED SOLAR ENERGY PROJECT, AS TRUSTEE OF THE SETTLEMENT FUNDS, WAS PROPERLY PRECLUDED FROM USING THE FUNDS TO PAY ITSELF FIRST; THE SUBCONTRACTORS MUST BE PAID FIRST; THERE WAS A TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department, affirming Supreme Court, over a two-justice dissent, in a matter of first impression, determined the subcontractors’ motion to enjoin the general contractor from using settlement funds to pay itself for expenditures in a failed solar-energy project was properly granted. The Lien Law created a trust for the settlement funds and required the general contractor, as trustee, to pay the subcontractors before paying itself:

“Article 3-A of the Lien Law impresses with a trust any funds paid or payable to a contractor ‘under or in connection with a contract for an improvement of real property’ ” ( … Lien Law § 70 [1]). Given this statutory definition, we readily conclude that the settlement funds at issue constitute trust funds under Lien Law article 3-A … . The Court of Appeals has “repeatedly recognized that the primary purpose of [Lien Law] article 3-A . . . is to ensure that those who have directly expended labor and materials to improve real property . . . at the direction of the owner or a general contractor receive payment for the work actually performed” … . With respect to a contractor’s trust, the parties entitled to a beneficial status are expressly enumerated in Lien Law § 71 (2) (a)-(f) … Pursuant to Lien Law § 71 (2) (a), “[t]he trust assets of which a contractor . . . is trustee shall be held and applied for [enumerated] expenditures arising out of the improvement of real property,” including “payment of claims of subcontractors, architects, engineers, surveyors, laborers and materialmen” (Lien Law § 71 [2] [a] … ). The language is mandatory and does not include the “cost[s] of improvement,” which is a term specifically defined to address an owner’s costs (Lien Law § 2 [5]; see Lien §§ 70 [5]; 71 [1] …).  L.C. Whitford Co., Inc. v Babcock & Wilcox Solar Energy, Inc., 2025 NY Slip Op 07063, Third Dept 12-18-25

Practice Point: Under the Lien Law the general contractor here is the trustee of the settlement funds and must use the funds to pay the subcontractors before paying itself.

 

PLAINTIFF WAS STANDING ON THE SECOND RUNG FROM THE TOP, STRADDLING THE LADDER, WHEN IT WOBBLED AND FELL; THE NEED TO STAND NEAR THE TOP OF THE LADDER TO DO THE WORK DEMONSTRATES THE LADDER WAS NOT AN ADEQUATE SAFETY DEVICE ENTITLING PLAINTIFF TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; THERE WAS A TWO JUSTICE DISSENT WHICH ARGUED THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S MISUSE OF THE LADDER WAS THE SOLE PROXIIMATE CAUSE OF THE ACCIDENT (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff in this ladder-fall case was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was standing on the second rung from the top of an extendable step ladder, straddling the ladder, when the ladder fell away from the building. The majority concluded the fact that plaintiff had to stand on the second rung from the top and straddle the ladder to do the work, he was not provided with an adequate safety device. The dissent argued there was a question of fact whether plaintiff’s misuse of the ladder was the sole proximate cause of the accident:

Supreme Court erred in finding that plaintiff failed to meet his prima facie burden, as “[w]e have repeatedly held that when a worker injured in a fall was provided with an elevation-related safety device, [here the ladder,] the question of whether that device provided proper protection within the meaning of Labor Law § 240 (1) is ordinarily a question of fact, except in those instances where the unrefuted evidence establishes that the device collapsed, slipped or otherwise failed to perform its function of supporting the worker and his or her materials” … . Accordingly, … an unexplained fall of the ladder while plaintiff was using it to reach an elevated work area, he is entitled to the presumption that the ladder was not good enough to afford proper protection … . Nusbaum v 1455 Wash. Ave. LLC, 2025 NY Slip Op 07066, Third Dept 12-18-25

Practice Point: Here the fact that plaintiff had to stand on the second rung from the top, straddling the ladder, to do the work demonstrated the ladder was not an adequate safety device, entitling plaintiff to summary judgment on the Labor Law 240(1) cause of action.

 

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DEFENDANT WAS CONVICTED OF SECOND DEGREE MURDER (DEPRAVED INDIFFERENCE) AND FIRST DEGREE MANSLAUGHTER (RECKLESS) FOR THE DEATH OF A SEVERELY ABUSED CHILD; THE EXTENSIVE DISCUSSIONS OF THE “DEPRAVED INDIFFERENCE” ELEMENT BY THE MAJORITY AND DISSENT ILLUSTRATE THE DIFFICULTY OF PROVING BOTH “DEPRAVITY” AND “INDIFFERENCE” (THIRD DEPT).

The Third Department, affirming defendant’s second degree murder (depraved indifference) and first degree manslaughter (reckless) convictions for the death of a severely abused child, over an comprehensive dissent, determined the facts supported the “depraved indifference” element. The dissent disagreed:

Contrary to defendant’s contentions, the fact that he began immediate life-saving measures on the victim and called his wife to summon medical aid does not dictate a different result. Rather “[t]he People were required to show that defendant had the necessary mens rea of callous indifference when the crime occurred, not at all times thereafter” … . Thus, where the defendant is the one who inflicted the fatal injuries, the sincerity and motivation behind post-injury rescue efforts distill to “implicated credibility questions for the jury to resolve” … . We find no reason to disturb the jury’s finding that defendant’s “belated expressions of concern did not reflect any [genuine] interest in the victim’s welfare” … .

From the dissent:

Ask 12 random people on the street to describe the mental state of someone who stomps on a young child’s stomach so hard that it kills him. Each will say something like, “cruel,” “brutal,” [*9]”monstrous” — maybe even “depraved” … . The jurors here rationally arrived at the same conclusion — and, indeed, “the horrific nature of defendant’s assault of the [victim] was clearly intended to be encompassed within the depraved indifference murder of a child statute” … .

But depravity is not enough. Depraved indifference to human life “is something even worse” … . To prove this rare state of mind, there must be evidence of “wanton cruelty, brutality, or callousness, combined with an utter indifference as to whether the victim lives or dies” … . That combination is not present here. Consequently, defendant’s conviction of depraved indifference murder must be reversed, and that count of the indictment dismissed. People v Greene, 2025 NY Slip Op 06931, Third Dept 12-11-25

Practice Point: “Depraved indifference” is a troublesome concept. How do the People prove both “depravity” and “indifference?” Consult this decision for an in-depth discussion.

 

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