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SUA SPONTE DISPOSITIONAL ORDERS ISSUED BY FAMILY COURT ARE APPEALABLE; THE FAMILY COURT ACT, NOT THE CPLR, CONTROLS (THIRD DEPT)

The Third Department, in a full-fledged opinion by Justice Pritzker, determined a sua sponte dismissal of a petition in Family Court is appealable:

… [T]he sua sponte dismissal of the petition is appealable. Pursuant to Family Ct Act § 1112 (a), “[a]n appeal may be taken as of right from any order of disposition under the Family Ct Act, which includes an order issued sua sponte that dismisses a petition in its entirety” … . To the extent that this Court’s prior cases, specifically Matter of Casey Q. v Jeffrey O. (244 AD3d at 1521) and Matter of Donald QQ. v Stephanie RR. (198 AD3d 1155, 1156 n 1 [3d Dept 2021]), can be read as holding that an ex parte or sua sponte Family Court dispositional order is not appealable as of right, they should not be followed. Indeed, the decisive issue when determining whether a Family Court order is appealable as of right is whether the order is dispositional (see Family Ct Act § 1112 [a]). Moreover, because Family Ct Act § 1112 (a) specifically addresses appealability of Family Court orders, it is improper to resort to CPLR provisions addressing appealability by way of Family Ct Act §§ 165 and/or 1118 … .. Matter of Jeffrey O. v Casey Q., 2026 NY Slip Op 06363, Second Dept 10-29-26

Practice Point: Dispositional orders issued by Family Court are appealable; the Family Court Act, not the CPLR controls.

 

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HERE THE “MERGER DOCTRINE” APPLIED TO THE KIDNAPPING AND ASSAULT CHARGES, THE KIDNAPPING CONVICTION WAS REVERSED AND THE COUNT DISMISSED (THIRD DEPT).

The Third Department, reversing County Court in this assault/kidnapping case, determined the merger doctrine should have been applied and reversed the kidnapping conviction:

… [A] kidnapping is generally deemed to merge with another offense where there is minimal asportation immediately preceding the other crime or where the restraint and underlying crime are essentially simultaneous” … . Notwithstanding the foregoing, “the merger doctrine does not apply ‘where the manner of detention is egregious’ ” … .

Here, the proof at trial demonstrated that the victim was lured to the residence on the promise of sex and drugs and, immediately upon entering, he was assaulted while also being prevented from leaving for 15 to 20 minutes. Thus, the kidnapping and the assault occurred simultaneously, as part of a single, uninterrupted and relatively brief episode … . * * *  … [T]he manner of detention was not so egregious that the kidnapping conviction should be sustained … . People v Hart, 2026 NY Slip Op 06360, Third Dept 10-29-26

Practice Point: Under the merger doctrine, where the actions of the defendant are not “egregious” and the victim is restrained for a brief period of time while other offenses are committed, a kidnapping charge will be deemed “merged” with the other offenses and the kidnapping count will be dismissed.

 

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THE JUDGE RESPONDED TO A NOTE FROM ONE OF THE JURORS WHO EXPRESSED FRUSTRATION WITH ANOTHER JUROR; THE JUDGE SPOKE TO HER ALONE AND APPARENTLY REVIEWED THE INSTRUCTIONS HE HAD GIVEN THE JURY ABOUT MEANINGFUL AND GOOD FAITH DELIBERATIONS; THAT WAS A MODE OF PROCEEDINGS ERROR REQUIRING REVERSAL AND A NEW TRIAL (THIRD DEPT).

The Third Department, reversing the judgment of conviction and ordering a new trial, on writ of error coram nobis alleging ineffective appellate counsel, determined the trial judge committed a mode of proceedings error by instructing a single juror in the absence of the remaining jurors:​

On the fifth day of deliberations, the trial judge placed on the record that he had received a note from one of the jurors asking to speak with him and that, “with the consent of the attorneys,” he engaged in an off-the-record discussion with the juror in his chambers. Although the discussion was not transcribed, the trial judge explained that the juror had vented her frustration about the manner in which another juror was deliberating with her, revealing that “she was taking her role as a juror seriously” and that she was “being confronted” by another juror “when she voiced an opinion on issues” and “ask[ed] specific questions.” In response, the trial judge informed the juror that she “ha[d] a right to ask questions, and [the other jurors] ha[d] an obligation to deliberate with her and to respond to her in a civil manner.” The trial judge further revealed that, during the discussion with this juror, he “substantially reviewed with her the instructions that [he had given] to all the jurors regarding the requirement of meaningful and in-good-faith deliberations.” After the trial judge placed such exchange on the record, defendant’s counsel revealed that he was contemplating requesting that the court charge the entire jury on civility. However, he ultimately declined to do so.

… [W]e disagree with the People’s assertion that County Court’s off-the-record discussion with the juror was ministerial in nature. Although the juror’s note was ambiguous and the discussion in chambers was not transcribed — making it impossible to know the precise nature of the conversation — County Court revealed that it had “substantially reviewed” with the juror the instructions it had previously provided to the entire jury panel regarding meaningful and good faith deliberations. As noted by the Court of Appeals, ” ‘there are few moments in a criminal trial more critical to its outcome than when the court responds to a deliberating jury’s request for clarification of the law or further guidance on the process of deliberations'” … . Under the circumstances presented, we conclude that the court’s conversation with the juror — which included providing a substantive instruction on the jurors’ obligations during the deliberative process — was not ministerial in nature, violated defendant’s right to be present at all material stages of the trial and constituted a mode of proceedings error … . People v Anderson, 2026 NY Slip Op 06169, Third Dept 1-22-26

Practice Point: Here the judge’s meeting with a juror alone and reviewing some of the jury instructions outside the presence of the other jurors was deemed a mode of proceedings error requiring reversal.​

 

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THE BANK DID NOT DEMONSTRATE IT HAD STANDING TO FORECLOSE; THE PROOF OF POSSESSION OF THE NOTE AND MORTGAGE DOCUMENTS AT THE TIME THE ACTION WAS BROUGHT WAS DEFICIENT; CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the bank in this foreclosure proceeding was not entitled to summary judgment because it did not establish standing to foreclose:

Although plaintiff attached a copy of the underlying note to the complaint and affirmed therein that it was in possession of the note prior to commencement of the action, the copy of the note attached to the complaint was not endorsed in blank, specially endorsed to plaintiff or accompanied by an allonge containing the required endorsements … . “[W]here there is no allonge or note that is either endorsed in blank or specially endorsed to the plaintiff, mere physical possession of a note at the commencement of a foreclosure action is insufficient to confer standing or to make a plaintiff the lawful holder of a negotiable instrument for the purposes of enforcing the note” … .

Plaintiff’s evidence in support of its summary judgment motion also did not establish its standing to foreclose the mortgage. In that regard, plaintiff submitted with its motion papers, among other things, a copy of the underlying note and two undated allonges, one of which contained a special endorsement that made the note payable to the order of plaintiff. However, mere possession of such allonges was insufficient to establish standing without evidence that they were “so firmly affixed” to the note “as to become a part thereof” at the time the action was commenced (UCC § 3-202 [2] … ). U.S. Bank N.A. v Sukljian, 2026 NY Slip Op 06191, Third Dept 10-22-26

Practice Point: Consult this decision for a detailed description of the documents the bank must possess to have standing to bring a foreclosure action.

 

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HERE THE JURY WAS PRESENTED WITH SEPARATE INTERROGATORIES FOR “STRICT PRODUCTS LIABILITY” AND “NEGLIGENT DESIGN” RESULTING IN AN INCONSISTENT VERDICT; THE JURY FOUND THE DESIGN DEFECTIVE AND NOT REASONABLY SAFE BUT ALSO FOUND THE DEFENDANT WAS NOT NEGLIGENT IN SELECTING THE DESIGN; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing the judgment and ordering a new trial, determined the jury interrogatories in this products liability case led to an inconsistent verdict. Based on the interrogatories, the jury found the product (an automobile air bag system) was negligently designed and not safe but further found defendant (BMW) was not negligent in selecting that design:

… BMW contends that the verdict sheet is internally inconsistent and fatally flawed because it failed to combine plaintiff’s three causes of action into a single set of interrogatories, despite each cause of action being legally synonymous with the others. We find this contention to have merit. Under CPLR 4111 (c), “when the answers on a verdict sheet ‘are inconsistent with each other and one or more is inconsistent with the general verdict, the court shall require the jury to further consider its answers and verdict or it shall order a new trial’ ” … . An inconsistency occurs “only when a verdict on one claim necessarily negates an element of another cause of action” … . Where, like here, a plaintiff “has pleaded both strict liability and negligent design causes of action, the standards set forth” for resolving a strict products liability claim “apply to both” … — and a verdict sheet which purports to inquire separately into whether a design was “negligent” or “not reasonably safe” is essentially “redundant” … . …

Here, plaintiff’s strict products liability and negligent design claims were both premised upon BMW’s use of an untethered, deflector-equipped driver-side airbag rather than a tethered design, and the same evidence concerning the risks and utility of that design and the feasibility of the proposed alternative was offered to support both theories. BMW objected to separate interrogatories, warning that they could produce inconsistent findings, and proposed a single interrogatory asking whether the airbag was “defectively or negligently designed.” Plaintiff opposed that request, expressly stating that he was “willing to accept the risk of an inconsistent verdict.” Supreme Court submitted the claims separately, resulting in a jury verdict finding that the airbag was defectively designed because it was not reasonably safe, but that BMW was not negligent in selecting that same design. Janof v Auto Warehouse, 2026 NY Slip Op 06189, Third Dept 10-22-26

Practice Point: Consult this decision for insight into the overlap between strict products liability and negligent design theories and how separate jury interrogatories for each can result in an inconsistent verdict requiring a new trial.

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DEFENDANT WAS CHARGED WITH CRIMINAL TRESPASS FOR ENTERING A WORKSHOP OWNED BY DECEDENT; DEFENDANT SOUGHT TO TESTIFY THE DECEDENT HAD GIVEN HIM PERMISSION TO ENTER THE WORKSHOP; THE TESTIMONY WAS PRECLUDED AS HEARSAY; BUT THE HEARSAY WAS ADMISSIBLE TO DEMONSTRATE DEFENDANT’S STATE OF MIND WHEN ENTERING THE WORKSHOP; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing the criminal trespass conviction and ordering a new trial on that charge, determined the judge should not have precluded the defendant from testifying that the decedent had granted defendant permission to enter decedent’s workshop. The testimony but precluded as inadmissible hearsay. But the testimony was offered to demonstrate defendant’s state of mind, a nonhearsay purpose:

… [A] new trial is required in connection with this charge due to County Court’s erroneous preclusion of evidence. Prior to trial, the People sought to preclude defendant from testifying that he had been granted permission by decedent to enter his workshop. Defendant opposed, and the court granted the motion on the ground that such evidence would constitute inadmissible hearsay. However, this proof would have been relevant and admissible for a nonhearsay purpose, i.e., to establish defendant’s state of mind when he entered the workshop … . Recognizing that the question of whether defendant believed he had decedent’s permission to enter bore directly upon whether he did so knowingly and unlawfully that is, without license or privilege (see Penal Law §§ 140.00 [5]; 140.10 [a]) as required to establish this crime, the court’s ruling effectively prevented him from exercising his constitutional right to present a defense, and this error cannot be said to be harmless … . People v Bombard, 2026 NY Slip Op 06175, Second Dept 10-22-26

Practice Point: Hearsay can be admissible to demonstrate a person’s state of mind. Here evidence the decedent gave the defendant permission to enter decedent’s workshop constituted a defense to the criminal trespass charge. To exclude the testimony deprived defendant of his constitutional right to put on a defense.

 

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EQUIVOCAL AND CONTRADICTORY EVIDENCE DID NOT MEET THE “CLEAR AND CONVINCING” STANDARD FOR THE ISSUANCE OF AN “EXTREME RISK PROTECTION ORDER (ERPO)” (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Corcoran, determined the equivocal evidence submitted by the state police was not sufficient to warrant an Extreme Risk Protection Order (ERPO). Respondent, a Department of Motor Vehicles (DMV) employee, had expressed animosity toward his supervisor. During a videoconference meeting with DMV personnel and respondent, a rifle and a handgun were visible near the respondent. Respondent’s vague statements, which were interpreted as threats of violence, were equivocal, and may have referred to respondent’s intent to sue the DMV:

At the hearing, the DMV labor relations representative who conducted the first videoconference meeting testified that respondent appeared intense and aggravated and repeatedly expressed animosity toward his supervisor. The agency director who conducted the second meeting the next day described how respondent sat to the side of the video frame while a rifle, mounted on a stand, and a handgun were prominently displayed on a table behind him. A screenshot of the participants and the firearms display was received in evidence. According to the director, the placement of the firearms “felt very intentional.” He nevertheless completed the hearing without commenting on the firearms, explaining that he wanted to address respondent’s grievance without creating any unnecessary distraction. The following day, respondent called the labor relations representative, asserted that his supervisor had engaged in unlawful discrimination and suggested that he should be supervised by someone else during the investigation. The investigator’s report annexed to the petition reflected that respondent had acknowledged animosity in his “chain of command” and stated that “be[ing] under something that condescending is not going to go well. It’s not a good idea to work under someone in that matter [sic] and you’re going to see later that it’s not a good idea.” … The labor relations representative told the investigator that respondent may have been referring to his stated plan to sue DMV for defamation or discrimination. * * *

… [P]etitioner’s proof of respondent’s alleged threat was equivocal or contradictory, such that petitioner failed to satisfy the requisite burden of proof. Petitioner’s documentary evidence and the testimony adduced at the hearing suggest that respondent’s statement about things “not going to go well” connoted future litigation. … To be sure, Supreme Court acted well within its discretion in finding that respondent testified untruthfully about his knowing display of firearms and that petitioner’s witnesses were more credible. Nonetheless, based upon the equivocal characterizations of respondent’s implied threat contained within petitioner’s own documentary proof and the testimony adduced at the hearing, we are constrained to conclude that petitioner did not establish by clear and convincing evidence that respondent was likely to engage in conduct that would result in serious harm to others. Matter of New York State Police v Brian LL., 2026 NY Slip Op 05832, Third Dept 10-8-26

Practice Point: Consult this opinion for insight into the “clear and convincing” standard of proof in the context of a petition for an “Extreme Risk Protection Order (ERPO).” The standard is not met by equivocal and contradictory proof.

 

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NOTHING IN THE RECORD SUPPORTED THE PROSECUTOR’S REASON FOR STRIKING A JUROR, I.E., THAT THE JUROR “SPOKE BROKEN ENGLISH;” DEFENDANT’S BATSON CHALLENGE TO THE STRIKING OF THE JUROR SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing the judgment of conviction and ordering a new trial, determined the defendant’s “Batson” challenge to the striking of a juror (juror No. 95] should have been granted. The record indicates the prosecutor’s reason for striking the juror, i.e., the juror’s “broken English,” was pretextual:

Evaluating the record … becomes problematic in instances where, like here, the nature of the race-neutral explanation given by a prosecutor pertains to a trait — i.e., speech and the ability to communicate — which is not easily captured by the record. Indeed, traits such as accent, dialect, tone, cadence, fluency or manner of speech are not typically represented on a transcript, but nonetheless remain part of the overall calculus as to whether an individual is perceived by others as being able to communicate effectively. This is why it is essential for trial courts, which are in a “unique position to verify . . . [what] is not clearly established in the appellate record” … , to create meaningful records for a reviewing court to uphold its determinations … .

Consequently, we are constrained to agree with defendant that County Court erred in denying his Batson challenge at step three. …[T]he record reflects that neither County Court nor defense counsel indicated any trouble understanding juror No. 95. Rather, County Court and defense counsel expressly disagreed with that characterization during voir dire … . Thus, there is nothing in the record to otherwise suggest that juror No. 95 had difficulty understanding or answering the limited questions posed by County Court, and the trial prosecutor did not ask any questions of this juror. In view of the sparseness of the record at trial and on remittal, as well as the comments and conduct of the trial prosecutor, a determination at step three that juror No. 95 did have difficulty communicating would, at best, be speculative … . Accordingly, since County Court’s determination was unsupported by the voir dire transcript, not based on its recalled observations or the assessment of the prosecutor’s credibility, and is otherwise without a basis in the record, we must reverse and remit the matter for a new trial … . People v Duplessis, 2026 NY Slip Op 05830, Third Dept 10-8-26

​Practice Point: The Third Department stressed the importance of creating a record during a Batson challenge to striking a juror, “particularly where innate traits such as language are at issue.” Here the prosecutor’s “race-neutral” reason for striking a juror, i.e., that the juror spoke “broken English,” had no support in the record. The appellate court, therefore, was “constrained” to find the reason “pretextual.”

 

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THE CHARGES STEMMED FROM AN ARMED CONFRONTATION WITH POLICE OFFICERS; A PROSPECTIVE JUROR INDICATED SHE “WOULD PROBABLY RELATE TO THE POLICE OFFICERS;” THE DENIAL OF THE DEFENSE CHALLENGE TO THE JUROR REQUIRED REVERSAL AND A NEW TRIAL (SECOND DEPT). ​

The Third Department, reversing the judgment of conviction and ordering a new trial, determined the defense challenge to a prospective juror should have been granted:

The trial evidence established that officers with the Hudson Police Department responded to a residence regarding a possible domestic incident. Upon their arrival, the officers announced themselves and knocked on the door for approximately five minutes before the door was eventually opened and they were permitted entry. Two officers entered the single-bedroom apartment while two others remained outside. One of the officers inside the apartment then came upon the bedroom where defendant was wielding a knife, which he had raised above his head in the direction of that officer. The officer, who was in uniform and visible to defendant, drew his service weapon and directed defendant to drop the knife multiple times before defendant ultimately did so. Defendant was then placed into custody with extreme difficulty. This chain of events was echoed by the three other officers present during the underlying events. * * *

After acknowledging close relationships with several individuals in law enforcement, the prospective juror expressed that, although she “would like to think [she] can be fair,” she “would probably relate to the [law enforcement] victims.” While “words like ‘think’ or ‘try’ are not talismanic words that automatically make a statement equivocal” … , the prospective juror continued that she “hope[d] that [she] could still be fair.” Altogether, these equivocal statements raised a clear question as to her ability to remain impartial and, therefore, could only be remedied by an unequivocal statement of impartiality … . However, when pressed by defense counsel as to whether she could be fair, the prospective juror failed to directly address the issue and, in fact, seemed to further express her own bias. County Court did not then attempt to rehabilitate the prospective juror … and, as a result, her prior statements of partiality were not remedied … . Under these circumstances we find disqualification to have been required. Thus, because defendant exhausted his peremptory challenges before jury selection was complete, a new trial is necessary … . People v Edmunds, 2026 NY Slip Op 05442, Third Dept 9-23-26

Practice Point: Consult this decision for insight into the inquiry required when a prospective juror indicates a bias in favor of law enforcement.

 

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THE DENIAL WITHOUT PREJUDICE OF A REQUEST TO APPLY FOR RESENTENCING PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) DOES NOT IMPLICATE THE MERITS OF RESENTENCING AND IS NOT APPEALABLE (THIRD DEPT).

The Third Department, over a detailed dissent, determined the dismissal-without-prejudice of the pro se defendant’s request for permission to apply for resentencing pursuant to the Domestic Violence Survivors Justice Act (DVSJA) (CPL 440.47) was not appealable:

CPL 440.47 is a procedural vehicle that allows “presently incarcerated persons serving sentences of at least eight years . . . to apply for resentencing pursuant to the framework established in Penal Law § 60.12 (1)” … . CPL 440.47 (1) details the pre-application phase, which is step one of the resentencing process. At step one, the defendant must request permission to apply for resentencing in accordance with Penal Law § 60.12 and demonstrate his or her eligibility for same. To do so, there are two simple criteria: such person “[(1)] must include in his or her request documentation proving that she or he is confined in an institution operated by the [D]epartment of [C]orrections and [C]ommunity [S]upervision serving a sentence with a minimum or determinate term of eight years or more for an offense committed prior to [August 12, 2019] and [(2)] that she or he is serving such sentence for any offense eligible for an alternative sentence under section 60.12 of the [P]enal [L]aw” ,,, . If the court finds that the defendant satisfies these criteria, it must notify the defendant that he or she may submit an application for resentencing (see CPL 440.47 [1] [c]). After the court notifies the defendant, he or she can request the appointment of an attorney to assist with the next steps … . However, if the court finds that the defendant has not met the requirements to apply for resentencing, it must notify the defendant of same and dismiss the request without prejudice … . It is evident from the plain language contained herein that such dismissal cannot constitute “an order denying resentencing” (CPL 440.47 [3] [a]). Of note, step one, as far as we can tell, is completely unique to the DVSJA as it asks that a defendant request permission to make the CPL 440.47 … . To that end, at step one, the defendant is merely considered a “person” rather than an “applicant” and, as such, has not actually asked the court to grant resentencing … . By virtue of this simple distinction, it is apparent that the pre-application procedure does not implicate the merits of resentencing … .. People v Shawn A., 2026 NY Slip Op 05216, Third Dept 9-3-26

 

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