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AN IN DEPTH ANALYSIS OF THE JURISDICTIONAL PRIORITY ISSUES RAISED IN A CUSTODY MATTER REGARDING A NAVAJO CHILD, BORN TO A NAVAJO MOTHER IN NEW MEXICO, LIVING ON THE NAVAJO NATION RESERVATION IN UTAH, WITH FATHER RESIDING IN NEW YORK (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mackey, grappled with the complex procedural and jurisdictional issues surrounding the custody of a Navajo child, born in New Mexico to a Navajo mother, living on the Navajo Nation reservation in Utah, and residing with father in New York. The issue is jurisdictional priority at the convergence of the Indian Child Welfare Act (ICWA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The opinion is far too complex to summarize here.  Matter of Kody II. v Shaunta JJ., 2026 NY Slip Op 03044, Third Dept 5-14-26

 

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THE ALBANY LOCAL LAW WHICH GIVES THE COMMISSIONER OF THE DEPARTMENT OF PUBLIC SAFETY EXCLUSIVE AUTHORITY TO HANDLE POLICE DISCIPLINARY MATTERS IS VALID (THIRD DEPT).

The Third Department, in an extensive full-fledged opinion by Justice Corcoran, determined an Albany local law gave the Commissioner of the Department of Public Safety the exclusive authority to handle police disciplinary matters. The opinion is complex and cannot be fairly summarized here. Matter of City of Albany, N.Y. (Albany Police Benevolent Assn.), 2026 NY Slip Op 03038, Third Dept 5-14-26

 

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HERE COUNTY COURT DID NOT OFFER ANY RATIONALE FOR EMPANELING AN ANONYMOUS JURY AND NONE IS APPARENT FROM THE RECORD; NEW TRIAL ORDERED (THIRD DEPT). ​

The Third Department, reversing defendant’s convictions and ordering a new trial, determined the judge should not have empaneled an anonymous jury:

We turn next to defendant’s argument that County Court erred by empaneling an anonymous jury — that is, by referring to prospective jurors “only by numbers and initials, with neither the attorneys nor [the] spectators knowing the jurors’ names.” On that, the record clearly bears out that County Court improperly empaneled an anonymous jury in clear violation of CPL former 270.15 … . However, acknowledging that no objection was raised before the trial court, defendant first argues that doing so constituted a mode of proceedings error. As we recently determined on two separate occasions, that contention is without merit … . We may nevertheless reach the issue as a matter of our discretion in the interest of justice (see CPL 470.15 [6] [a]). In assessing whether it is appropriate to do so, “we consider the totality of the circumstances, including the nature of the statutory violation, the explanation offered by the trial court and the potential for prejudice to the defendant” … ..

We agree with defendant’s contention that reversal is warranted based upon the totality of the circumstances. Although the empaneling of an anonymous jury may be appropriate under certain limited circumstances, where, as here, there is “no ‘factual predicate for the extraordinary procedure,’ ” to do so was error … . Indeed, there is no dispute that County Court failed to provide any rationale for doing so, and “[t]he record does not reflect any concern regarding juror safety, intimidation or interference, nor any circumstances that would otherwise warrant the use of an anonymous jury” … . Moreover, unlike those cases where defense counsel was made aware of the juror names … , the record is devoid of any indication that such occurred here, “which materially heightens the risk of prejudice” … . We therefore exercise our interest of justice jurisdiction, reverse and remit for a new trial. People v Zakrzewski, 2026 NY Slip Op 03029, Third Dept 5-14-26

Practice Point: Although improperly impaneling an anonymous jury is not a mode of proceedings error, and no objection was raised to the anonymous jury at trial, because there appears to have been no rationale for using an anonymous jury, the Third Department, in the interest of justice, reversed defendant’s convictions and ordered a new trial.

 

HERE THE INDICTMENT PURPORTED TO CHARGE CRIMINAL POSSESSION OF A CONTROLLED SUBSTANCE THIRD DEGREE, WHICH REQUIRES POSSESSION OF 1/2 OUNCE OR MORE, BUT THE FACTUAL RECITATION IN THE INDICTMENT ASSERTED POSSESSION OF 1/8 OUNCE OR MORE; THE INDICTMENT IS JURISDICTIONALLY DEFECTIVE AND MUST BE DISMISSED (THIRD DEPT).

The Third Department, reversing County Court, determined the indictment was jurisdictionally defective and must be dismissed. The indictment purported to charge criminal possession of a controlled substance in the third degree, which requires possession of 1/2 ounce or more, but the factual recitation in the indictment asserted defendant possessed 1/8 ounce or more:

As the factual allegations effectively negated an essential element of the particular crime sought to be charged (i.e., the requisite aggregate weight of 1/2 ounce or more) and altered the theory upon which the People proceeded in prosecuting defendant, the indictment was jurisdictionally defective … . Regardless of statements made by defendant during the plea allocution regarding the aggregate weight of the substance he possessed, such statements are insufficient to cure the defects in the indictment. As the indictment negated an essential element of the purported crime charged, we are constrained to reverse the conviction and dismiss the indictment as jurisdictionally defective … . People v Head, 2026 NY Slip Op 03028 Third Dept 5-14-26

Practice Point: Here a discrepancy between the amount of a controlled substance required by the statute and the amount asserted in the factual recitation in the indictment rendered the indictment jurisdictionally defective.

 

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ALTHOUGH RPTL 421-A DOES NOT EXPLICITLY ALLOW JUDICIAL REVIEW OF THE COMPTROLLER’S TAX RULINGS, THE CASE LAW SUPPORTS THE AVAILABILITY OF ARTICLE 78 REVIEW; THEREFORE THE STATUTE IS NOT UNCONSTITUTIONAL (THIRD DEPT). ​

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, determined RPTL 421-a (16) (c) (x) does not foreclose judicial review of the Comptroller’s rulings concerning certain tax benefits available to property developers who provide affordable housing and pay construction workers at the statutory rate. Although the statute does not explicitly allow judicial review, the case law supports the conclusion that Article 78 review is available:​

… Supreme Court has broad authority to provide relief from an administrative determination in a CPLR article 78 proceeding, both during the pendency of the proceeding and following the completion of judicial review … . During the pendency of such a proceeding, the court may “stay . . . the enforcement of [the] determination under review” (CPLR 7805 …). Correspondingly, once judicial review is complete, the reviewing court is authorized to “annul or confirm . . . or modify” the determination “in whole or part” and may “direct. . . specified action by the respondent” (CPLR 7806). The court’s authority under CPLR 7806 to direct specified action by the respondent agency encompasses “any . . . directions needed to secure to the petitioner the [a]rticle 78 relief ordered” and a court’s judgment embodying those directions “is enforceable by contempt proceedings” … . In other words, if a reviewing court found the Comptroller’s final determination under RPTL 421-a (16) (c) (x) to have been made in violation of lawful procedure, affected by an error of law, arbitrary and capricious or lacking in substantial evidence (see CPLR 7803 [3], [4]), it would have broad remedial power under CPLR 7806 to annul the Comptroller’s determination, which would, in effect, render the underlying administrative judgment unenforceable, and could also direct the Comptroller to take action to secure the vacatur of the administrative judgment. Matter of Bldg 44 Devs. LLC v State of New York, 2026 NY Slip Op 02898, Third Dept 5-7-26

Practice Point: Even where a statute does not explicitly allow judicial review, the case law may support Article 78 review, rendering the statute constitutional.

 

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THE JUDGE’S ERROR IN REFUSING TO GRANT A BRIEF ADJOURNMENT WHEN THE PEOPLE BELATEDLY OFFERED A REBUTTAL WITNESS HAD A “SPILL-OVER-EFFECT” TAINTING THE OTHER COUNTS; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined (1) the court erred in not granting the defense an adjournment when the People belatedly offered rebuttal testimony, and (2) the “spill-over-effect” of that error tainted the convictions:

The trial court may, in the exercise of its discretion, receive belatedly disclosed rebuttal testimony, ” ‘but before doing so, it must, upon application of the … . We therefore conclude that County Court erred when, after granting the prosecution’s request to offer rebuttal proof on Monday, it then denied defendant’s application for any adjournment before the prosecution called its rebuttal witness … . Given that proof of defendant’s guilt without the rebuttal witness’ testimony was “not overwhelming,” the error cannot be deemed harmless … .

In determining whether an error in the proceedings relating to one count requires reversal of the conviction of other jointly tried counts, we apply “[s]pillover analysis” and evaluate “the individual facts of the case, the nature of the error and its potential for prejudicial impact on the over-all outcome” … . “[I]f there is a reasonable possibility that the jury’s decision to convict on the tainted counts influenced its guilty verdict on the remaining counts in a meaningful way,” reversal is required (id. [internal quotation marks and citations omitted]). Because resolution of all three counts here hinged on the jury’s assessment of the victims’ credibility and the veracity of the defense claims, there is a reasonable possibility that the decimation of defendant’s alibi by the rebuttal evidence meaningfully influenced the jury’s guilty verdict on the 2018 count … . The rebuttal proof, received without affording defendant a brief adjournment to investigate, cast defendant’s alibi witness as unscrupulous and incredible. Under these unusual circumstances, we reverse defendant’s convictions and order a new trial on all counts … . People v Shaver, 2026 NY Slip Op 02895, Second Dept 5-7-26

Practice Point: An error affecting the proof of one count may have a “spill-over-effect” and taint the remaining counts, requiring a new trial.

 

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THE EDUCATION LAW PRIVILEGE WHICH PROTECTS HOSPITAL QUALITY-REVIEW PROCEEDINGS DID NOT APPLY TO REPORTS ABOUT UNSAFE WORKING CONDITIONS AT THE HOSPITAL; PLAINTIFF IN THIS WRONGFUL TERMINATION ACTION WAS ENTITLED TO DISCOVERY OF THE REPORTS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff in this wrongful termination and retaliation action was entitled to discovery of so-called RL6 reports addressing unsafe working conditions. Defendant hospital claimed the documents were privileged under Education Law § 6527 (3) and the Patient Safety and Quality Improvement Act of 2005 (42 USC § 299b-21 et seq. [hereinafter PSQIA]):

Plaintiff was employed as a nursing assistant and technician within defendant’s secure unit for patients with behavioral health and psychiatric conditions. He commenced this action for wrongful termination and retaliation under Labor Law §§ 740 and 741, claiming that defendant unlawfully fired him after he reported unsafe workplace practices and conditions. During discovery, plaintiff demanded copies of his statements to defendant, including his June 2022 report of safety concerns submitted to defendant’s electronic reporting system. Plaintiff also requested the parties’ communications about the secure unit and defendant’s responses to prior related complaints or concerns. * * *

“[A] party does not obtain the protection of Education Law § 6527 (3) merely because the information sought could have been obtained during the course of a hospital review proceeding[.] . . . The exemption applies only where the information was in fact so obtained” … . In short, the administrator’s conclusory affidavit is insufficient to satisfy defendant’s burden under Education Law § 6527 (3) … . Moreover, defendant conceded, both in its brief and at oral argument, that the RL6 reports were not submitted to a quality assurance or peer review committee. …

Assuming, without deciding, the doubtful proposition that PSQIA applies to this state law claim, defendant failed to demonstrate that the RL6 reports at issue constitute privileged patient safety work product. Adams v Bassett Healthcare Network, 2026 NY Slip Op 02706, Third Dept 4-30-26

Practice Point: Consult this decision for insight into the scope of the Education Law privilege protecting hospital quality-review proceedings. Here the privilege did not extend to employee reports about unsafe working conditions.

 

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UPON RESPONDENT’S FAILURE TO APPEAR, FAMILY COURT DISMISSED RESPONDENT’S COUNSEL AND HELD THE ORDER-OF-PROTECTION HEARING IN RESPONDENT’S ABSENCE; RESPONDENT WAS DENIED DUE PROCESS OF LAW; ORDER VACATED (THIRD DEPT).

The Third Department, reversing Family Court, vacated the order of protection issued upon respondent’s “default” based on the denial of respondent’s due process rights:

Petitioner commenced this proceeding in November 2023 seeking an order of protection against respondent. After an initial appearance and subsequent conferences at which the parties variously appeared virtually, in person or through counsel, respondent failed to appear for the April 2024 in-person hearing. Family Court directed respondent’s counsel to leave the courtroom, at which point respondent’s counsel offered to have respondent appear virtually, asserting that respondent was in “hiding” in light of criminal charges filed against petitioner in connection with her alleged stalking of, and firing a rifle at, respondent in August 2023. The court implicitly denied respondent’s request by again directing respondent’s counsel out of the courtroom. The hearing proceeded, during which petitioner testified and was subject to cross-examination by the attorney for petitioner’s children. …

Typically, “[a] party seeking to vacate a default judgment must establish both a reasonable excuse for the default and a meritorious defense to the underlying claim” … . “No such showing is required, however, where a party’s fundamental due process rights have been denied” … . In this case, respondent’s counsel attended in person evidently ready to proceed, offered an excuse for respondent’s nonappearance and provided an alternate means to move forward in his absence … . Respondent’s counsel made no application to withdraw, and Family Court did not relieve respondent’s counsel, and thus respondent’s attorneys remained counsel of record when they were dismissed from the courtroom without explanation (see CPLR 321 [b] …). The court’s atypical conduct in that regard, coupled with the court’s choice to decline available options to proceed in respondent’s absence, deprived respondent of his opportunity to be heard (see CPLR 321 [a] …). Matter of April V. v Jonathan U., 2026 NY Slip Op 02702, Third Dept 4-30-26

Practice Point: An order issued upon a party’s default may be vacated when the party’s due process rights were violated by the judge. Here the judge ordered the party’s counsel to leave and held the hearing in the party’s absence after the counsel explained the party’s absence and offered to proceed virtually.

 

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PETITIONER-INMATE PREVAILED IN THE PROCEEDING TO ANNUL THE PENALTY OF CONFINEMENT FOR 120 DAYS IN A SPECIAL HOUSING UNIT (SHU); PETITIONER WAS ENTITLED THE AWARD OF COUNSEL FEES (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined that petitioner-inmate had prevailed in the proceeding to annul the 120-day confinement in the Special Housing Unit (SHU) (imposed on him for threats of violence) and therefore was entitled to counsel fees. The 120-day confinement was annulled because the correctional facility did not comply with the requirements of the Humane Alternatives to Long-Term Solitary Confinement Act (hereinafter the HALT Act) and the Special Housing Unit Exclusion Law (hereinafter the SHU Exclusion Law):

… [T]he plain language of these statutes clearly required specific conduct and findings to impose a 120-day confinement sanction against an incarcerated individual housed in an RMHU [residential mental health unit]. Even putting aside the lack of the required written findings, respondent did not have a reasonable basis to conclude that petitioner’s statements — made during a crisis call while he was confined in an RMHU without any indication that he had access to the individuals who were the subject of his threats or a history of causing serious physical injury or death to another person — constituted a qualifying threat under Correction Law § 137 (6) (k) (ii) (A). Although Supreme Court recognized as much in annulling the 120-day confinement sanction, expressly stating that “the administrative record . . . does not contain facts from which the court can discern a rational basis for respondent’s determination,” it nevertheless denied petitioner’s application for counsel fees on the ground that respondent’s position was substantially justified. Given the inherent conflict in Supreme Court’s determinations and our finding that respondent’s position was not “substantially justified” within the meaning of CPLR 8601, we find that Supreme Court abused its discretion in denying petitioner’s request for counsel fees on this basis … . Matter of Walker v Martuscello, 2026 NY Slip Op 02701, Third Dept 4-30-26

Practice Point: Consult this decision for insight into the application of the Humane Alternatives to Long-Term Solitary Confinement Act (the HALT Act) and the Special Housing Unit Exclusion Law (the SHU Exclusion Law) with respect to the imposition of long-term solitary confinement on an inmate.

 

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THE “RECTAL INTRUSION” BY CORRECTION OFFICERS SEEKING TO FORCE CLAIMANT-INMATE TO COMPLY WITH THEIR ORDERS SHOULD HAVE BEEN CONSIDERED AS AN ELEMENT OF DAMAGES IN THIS BATTERY ACTION AGAINST THE STATE; THE CONDUCT WAS WITHIN THE SCOPE OF THE CORRECTION OFFICERS’ EMPLOYMENT; THE STATE CAN BE HELD VICARIOUSLY LIABLE (THIRD DEPT).

The Third Department, reversing the Court of Claims, in a full-fledged opinion by Justice Mackey, determined the court should have considered the insertion of an object in claimant’s rectum as an element of damages in this suit by claimant-inmate against the State. The Court of Claims determined the State could not be vicariously liable because the conduct was outside the scope of the correction-officers’ employment. The Third Department disagreed, noting that the officers were attempting to force claimant to comply with their orders and the conduct was not motivated by sexual gratification:

There is no evidence that the rectal intrusion here was for any of the officers’ personal sexual gratification. Rather, the officers’ statements made during and immediately following the incident, as reported by claimant and credited by the Court of Claims, reflect that the sexually related conduct here was part of an overall — albeit objectively excessive — use of force to compel claimant’s compliance with a directive and, thus, was part of the officers’ employment-related function to enforce discipline within the correctional facility (see Correction Law § 137 [5]; 7 NYCRR 251-1.2 [d] …). … [T]he potential for such abuse of authority, if not the precise vile conduct engaged in here, is expressly addressed in the applicable instructions to correction officers in performing their employment-related disciplinary duties (see generally Correction Law § 137; 7 NYCRR 251-1.2). The record thus establishes defendant’s liability as to that part of the claim for damages related to the rectal intrusion … . Accordingly, we reverse the judgment to the extent that it excluded the same and remit for a new determination of claimant’s damages not inconsistent with this Court’s decision … . C.J. v State of New York, 2026 NY Slip Op 02699, Third Dept 4-30-26

Practice Point: Here the “rectal intrusion” inflicted by correction officers upon claimant-inmate was part of an attempt to force claimant to comply with their orders. Therefore the conduct was withing the scope of the officers’ employment for which the State can be vicariously liable.

 

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