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BECAUSE THE INITIAL USE OF THE ROADWAY WAS PERMISSIVE, AND THERE WAS NO HOSTILE USE FOR THE REQUIRED TEN YEARS, THE CRITERIA FOR A PRESCRIPTIVE EASEMENT WERE NOT MET; HOWEVER BECAUSE THE INITIAL USE WAS PERMISSIVE AND CONTINUED FOR 50 YEARS, THE CRITERIA FOR AN EASEMENT BY ESTOPPEL WERE MET (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiffs did not have a prescriptive easement over defendants’ properties, but did have an easement by estoppel. Because there was an agreement among the original owners of the three adjacent camps to construct, maintain and use a roadway providing vehicular access to all three camps, and because there had been no hostile use of the roadway for ten years, the requirements for a prescriptive easement were not met. However plaintiffs were entitled to an easement by estoppel. The court noted that the Statute of Frauds does not apply to an easement by estoppel:

[Re; a prescriptive easement] … [B]ecause plaintiffs’ predecessors’ use of the extension was permissive, the element of hostility was negated … . Therefore, no adverse use could have arisen until there was the assertion of a hostile right … , which, at the earliest, occurred in 2018. We are presented with a permissive use that did not ripen into a prescriptive one for the time required … .

Yet, these same facts establish plaintiffs’ entitlement to an easement by estoppel … . “An easement by estoppel may arise when, among other things, a party reasonably relies upon a servient landowner’s representation that an easement exists” … . The uncontested existence of the agreement between the parties’ predecessors for the construction and use of the extension, together with the time and expense of not only the initial construction but, also, the continued 50-year maintenance thereof, demonstrates that plaintiffs “undertook . . . action[s] to their detriment in reasonable reliance upon a representation that they held an easement” … . Sardino v Scholet Family Irrevocable Trust, 2025 NY Slip Op 02828, Third Dept 5-8-25

Practice Point: Consult this decision for clear illustrations of the criteria for a prescriptive easement and an easement by estoppel.

 

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CONFINEMENT IN A RESIDENTIAL MENTAL HEALTH TREATMENT UNIT (RMHU) FOR 17 HOURS A DAY, WITH AT LEAST SEVEN HOURS OF OUT-OF-CELL TIME PER DAY, FOR MORE THAN THREE DAYS, DOES NOT VIOLATE THE HUMANE ALTERNATIVES TO LONG-TERM SOLITARY CONFINEMENT ACT (HALT ACT) (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined the sanctions imposed upon petitioner, an incarcerated person with serious mental illness, did not violate the Humane Alternatives to Long-Term Solitary Confinement Act (HALT Act) but did violate the Special Housing Unit Exclusion Law (SHU Exclusion Law):

… [P]etitioner remained in the RMHU [residential mental health treatment unit] where he received at least seven hours of out-of-cell time, therefore he was not in segregated confinement, which is defined as “the confinement of an incarcerated individual in any form of cell confinement for more than [17] hours a day” (Correction Law § 2 [23]). * * * Therefore, based on the foregoing, DOCCS [Department of Corrections and Community Supervision] did not violate Correction Law § 137 (6) (k) (ii) by placing petitioner in the RMHU longer than three days without the requisite findings under the HALT Act.

However … we do find that the disciplinary sanctions, as written, violated the SHU Exclusion Law as set forth in Correction Law § 401. To that end, Correction Law § 401 provides that “[a]n incarcerated individual . . . shall not be sanctioned with segregated confinement for misconduct [in an RMHTU], or removed from the unit and placed in segregated confinement or a[n RRU (residential rehabilitation unit)], except in exceptional circumstances where such incarcerated individual’s conduct poses a significant and unreasonable risk to . . . safety . . . and . . . has been found to have committed an act or acts defined in [Correction Law § 137 [k] [6] [ii]]” (Correction Law § 401 [5] …). “Because the statute is phrased in the disjunctive” … , DOCCS must find that exceptional circumstances existed and a Correction Law § 137 (6) (k) (ii) act occurred if either 1) the incarcerated individual is sanctioned with segregated confinement for misconduct on the unit or 2) the incarcerated individual is removed and placed in segregated confinement or an RRU. Here, the former applies as petitioner was sanctioned, in writing, with segregated confinement in the RMHU but was not found, in a written determination, to have committed an act pursuant to Correction Law § 137 (6) (k) (ii), a fact which is uncontested by either party. Thus, the written disciplinary sanction was in violation of the SHU Exclusion Law. Therefore, the disciplinary sanctions imposed upon petitioner must be annulled. Matter of Walker v Commissioner, N.Y. State Dept. of Corr. & Community Supervision, 2025 NY Slip Op 02834, Third Dept 5-8-25

 

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ALTHOUGH DEFENDANT PLED GUILTY TO MANSLAUGHTER AND ATTEMPTED ASSAULT PURSUANT TO A PLEA AGREEMENT WITH A NEGOTIATED SENTENCE, THE CONSECUTIVE SENTENCES WERE ILLEGAL; THERE WAS NO PROOF IN THE PLEA ALLOCUTION THAT THE DEFENDANT FIRED MORE THAN ONE BULLET (THERE WAS A SECOND SHOOTER) (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the 25-year sentence for manslaughter and the 10-year sentence for attempted assault, which, pursuant to a plea agreement with a negotiated sentence, were imposed consecutively, must be served concurrently. Because the defendant pled guilty, the only relevant evidence is in the plea allocution. The majority concluded the record did not demonstrate that the defendant fired more than one bullet and therefore there was no proof the manslaughter and attempted assault charges stemmed from two separate acts (there was a second shooter):

“Consecutive sentences are appropriate only when either the elements of the crimes do not overlap or if the facts demonstrate that the defendant’s acts underlying the crimes are separate and distinct” … . The People bear the burden of establishing the legality of consecutive sentences and, when a defendant pleads guilty to a count in the indictment, may meet their burden by relying on the allegations in the accusatory instrument and any facts adduced at the plea allocution … . Where, as here, a defendant also pleads guilty to a lesser offense than that charged in the indictment, the People may only rely upon those facts and circumstances admitted during the plea allocution with respect to that count … . To this point, the facts necessary to support consecutive sentences may not be discerned from statements included in a presentence report … .

… [T]he People failed to meet their burden inasmuch as there are no facts alleged in the count of the indictment to which defendant pleaded guilty, or in the plea allocution relating to either count, that would establish that defendant’s “shooting a firearm,” which constituted manslaughter in the first degree by causing the death of the victim (count 1) and attempted assault in the first degree to a different victim (count 4), “arose from a separate and distinct pull of the trigger by defendant” … . People v Sabb, 2025 NY Slip Op 02624, Third Dept 5-1-25

Practice Point: To justify consecutive sentences the offenses must be the result of distinct acts. When conviction is by guilty plea, the plea allocution is the only admissible evidence of what happened (the pre-sentence report cannot be considered). Here, because the defendant did not admit to firing more than one bullet in the plea allocution, the sentences for manslaughter and attempted assault cannot be imposed consecutively. There was a cogent two-justice dissent.​

 

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THERE ARE TWO STATUTORY PROCEDURES FOR APPROVING AN EXTENSION OF A SEWER DISTRICT; HERE THE REQUEST FOR AN EXTENSION WAS INITIATED UNDER ONE STATUTORY PROCEDURE, WHICH DOES NOT REQUIRE A REFERENDUM, BUT THE TOWN APPLIED THE OTHER STATUTORY PROCEDURE, WHICH DOES REQUIRE A REFERENDUM; THAT WAS ERROR (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the town failed to follow the correct statutory procedure for approval of an extension of a sewer district to include petitioner’s commercial development  There are two statutory procedures. The Town Law Article 12 procedure applies when a petition is filed by an owner of taxable property (like the petitioner in this case). The Article 12 procedure has no “referendum” requirement. The Town Law Article 12-A procedure is initiated by the town and requires a referendum. Here the town required a referendum and thereby applied the wrong statutory procedure:

… [W]ithout formally ruling on the article 12 petition, the Town Board … essentially approved the extension project under the framework of article 12-A by providing for a permissive referendum. Recognizing that these articles do not contain any mechanism for such a conversion, we find that the Town Board erred and, as a result, its resolutions must be invalidated. Matter of Glen Wild Land Co., LLC v Town of Thompson, 2025 NY Slip Op 02628, Third Dept 5-1-25

Practice Point: Where the Town Law provides two distinct statutory procedures for approval of an extension of a sewer district, the town must follow the procedure in the applicable statute. Here the applicable statute did not require a referendum but the inapplicable statute did. The town erred when it required a referendum.

 

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ALTHOUGH FATHER IS INCARCERATED FOR ASSAULTING MOTHER WHEN SHE WAS SEVEN MONTHS PREGNANT, FATHER IS ENTITLED TO A HEARING ON WHETHER VISITATION WITH THE CHILD, WHICH NEED NOT INCLUDE CONTACT VISITATION, IS IN THE BEST INTERESTS OF THE CHILD; IT IS THE MOTHER’S BURDEN TO DEMONSTRATE VISITATION WOULD BE HARMFUL (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined the incarcerated father was entitled to a hearing on whether visitation would be in the best interests of the child. Father was convicted of assaulting mother when mother was seven months pregnant. Family Court had granted mother’s summary judgment motion precluding father’s contact until the child turns 18. The Third Department found that summary judgment in the absence of a hearing was inappropriate:

… [W]e agree with the father’s contention that a hearing was required regarding the issue of visitation. Plainly stated, we do not find that, given the specific circumstances of this case, denying the father any contact with the child until the child’s 18th birthday was appropriate on a summary judgment motion … . This is especially so given that “visitation . . . need not always include contact visitation at the prison” … . As such, the father is entitled to a hearing to determine what, if any, visitation is in the best interests of the child. By way of reminder, at this hearing, it is not the father’s burden to demonstrate that visitation is in the child’s best interests, but rather it is the mother, as the party opposing visitation, who has the burden of demonstrating, by a preponderance of the evidence, “that visitation with [the father] would, under all of the circumstances, be harmful to the child[‘s] welfare or contrary to [her] best interests” … . This includes a consideration of whether updates, photographs and/or letters may be appropriate and in the best interests of the child … . Matter of Jaime T. v Ryan U., 2025 NY Slip Op 02638, Third Dept 5-1-25

Practice Point: Once again it is Family Court’s failure to hold a hearing which results in reversal. Here the incarcerated father is entitled to a hearing on whether visitation, which need not include contact visitation, would be in the best interests of the child. At the hearing, it is mother’s burden to demonstration visitation would be harmful to the child.

 

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THE TRIAL PROOF COULD BE INTERPRETED TO SUPPORT AN INTENT TO CAUSE SERIOUS PHYSICAL INJURY (ASSAULT SECOND) OR AN INTENT TO CAUSE PHYSICAL INJURY (ASSAULT THIRD); DEFENDANT’S REQUEST THAT THE JURY BE INSTRUCTED ON ASSAULT THIRD AS A LESSER INCLUDED OFFENSE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED ON THAT COUNT (THIRD DEPT).

The Third Department, ordering an new trial on the assault second count, determined defendant’s request that the jury be instructed on assault third as a lesser included offense should have been granted:

… County Court erred in refusing [defendant’s]  request to charge assault in the third degree as a lesser included offense of assault in the second degree. Assault in the second degree is committed when a person acts “[w]ith intent to cause serious physical injury to another person [and] causes such injury to such person or to a third person” … ; assault in the third degree, in contrast, is committed when a person acts “[w]ith intent to cause physical injury to another person [and] causes such injury to such person or to a third person” … . There is no dispute that assault in the third degree as defined in Penal Law § 120.00 (1) is a lesser included offense of assault in the second degree as defined in Penal Law § 120.05 (1), as a person could intend and cause physical injury to a victim while not intending or causing serious physical injury … . The trial proof here left little doubt that defendant began by attempting to discipline the victim but that things soon escalated to the point where he was trying to injure her, including by picking her up by her throat and holding her against a wall for a few minutes, allowing her to fall to the floor and then slapping her. This proof permitted the finding that defendant intended to cause a serious physical injury which “create[d] a substantial risk of death, or . . . serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ,” and such an injury resulted when the victim fell to the floor and broke her tooth … .

… [I]t was unclear whether defendant anticipated that the conscious victim would fall when he released her, and there was conflicting testimony as to whether he threw her to the floor with enough force to break her tooth or she simply took a bad fall after he let her drop. The victim’s treating dentist further conceded in his testimony that a tooth could accidentally break and that he had seen such injuries result from incidents as minor as “biting down on forks wrong.” When viewed in the light most favorable to defendant, this proof could allow “a jury [to] reasonably conclude that defendant intended and caused ‘physical injury’ to the victim” as opposed to serious physical injury … . People v Hooper, 2025 NY Slip Op 02623, Third Dept 5-1-25

Practice Point: There is no question that Assault third is a lesser included offense of Assault second. Here, the trial proof could be interpreted to support an intent to cause serious physical injury (Assault second) or an intent to cause physical injury (Assault third). Therefore defendant’s request for a jury instruction on Assault third should have been granted. A new trial was ordered on that count.

 

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THE MAJORITY CONCLUDED THE COURT SHOULD USE ITS AUTHORITY TO DISMISS THE JUVENILE DELINQUENCY PETITION IN THE INTEREST OF JUSTICE, AN EXTRAORDINARY REMEDY WHICH SHOULD BE EMPLOYED SPARINGLY, FACTORS EXPLAINED (THIRD DEPT).

The Third Department, over a concurring decision and an extensive dissent, determined the juvenile delinquency petition should be dismissed in the interest of justice. The concurrence argued the dismissal should be based upon ineffective assistance of counsel. The dissent argued this difficult situation was properly handled:

Although we are mindful that “[d]ismissal in the furtherance of justice is an extraordinary remedy that must be employed sparingly,” it is our opinion that this is one of “those rare cases where there [are] compelling factor[s] which clearly demonstrate[ ] that prosecution [resulted in an] injustice” .. . … [A]ttempted assault in the third degree, a class B misdemeanor, is not serious … . … [T]he DSS caseworker was not seriously injured. * * * … [A]t the time of the attempted assault, respondent was in DSS’ care and custody because her mother was deceased and her grandmother, who subsequently adopted respondent, ultimately surrendered her rights. Respondent has a reportedly low IQ and a history of mental illness which was so severe that Family Court ordered a capacity evaluation … . Indeed, respondent had been brought to the hospital emergency room based on what was legally designed to be a temporary Mental Hygiene Law § 9.41 hold. Respondent remained in what was essentially a lock and key detention in the hospital, mostly in the emergency room, under dubious circumstances for an outrageous period of six months.

… Respondent already had numerous strikes against her, not only her lack of a parent/guardian and her serious mental health challenges, but also a previous juvenile delinquency adjudication. This additional juvenile delinquency finding is a red flag that will undoubtedly hinder opportunities and could cause difficulty for respondent should she seek mental health assistance in the future. Simply put, respondent needs no additional baggage, especially not baggage stemming from a juvenile delinquency petition that was admittedly filed and continued because of the difficulty of placing her in a suitable setting … . Matter of A. WW., 2025 NY Slip Op 02377, Third Dept 4-24-25

Practice Point: Consult this decision for a detailed analysis of an appellate court’s authority under the Family Court Act to dismiss a juvenile delinquency petition “in the interest of justice.”

 

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THERE WAS NO PROOF DEFENDANT WAS NOTIFIED OF THE SORA RISK-LEVEL ASSESSMENT HEARING AND VOLUNTARILY WAIVED HIS RIGHT TO BE PRESENT; THE DUE PROCESS ISSUE NEED NOT BE PRESERVED FOR APPEAL BECAUSE DEFENDANT DID NOT HAVE THE OPPORTUNITY TO OBJECT; LEVEL-THREE RISK-LEVEL ASSESSMENT REVERSED (THIRD DEPT). ​

The Third Department, reversing County Court’s level-three SORA risk-level assessment and remitting the matter, determined the People did not demonstrate defendant waived his right to be present at the virtual SORA risk-assessment hearing. The judge relied on an email from the Department of Corrections and Community Supervision stating that defendant “is waiving his right to be present in court,” which was not sufficient proof defendant was notified of the hearing and his rights and voluntarily waived his rights. Although defense counsel did not object, the issue did not require preservation for appeal because the defendant had “no practical ability to object” to the due process error:

The record does not establish that defendant was advised of the hearing date, the right to be present or of the consequences of failing to appear and/or participate. County Court’s passing remark at the outset of the hearing that defendant had been “served” and did not wish to be present did not demonstrate such advisement or the basis for finding a waiver, and defense counsel did not represent that he had provided such advisements to defendant, that defendant was aware of his rights or that defendant had “expressed a desire to forego his presence at the hearing” … .

Although the People submitted a July 19, 2022 email correspondence indicating that an order to produce defendant for the SORA hearing was sent by County Court to the facility where defendant was apparently incarcerated, the responsive email from a Department of Corrections and Community Supervision employee stated only that defendant “is waiving his right to be present in court” for the SORA hearing, which was insufficient to establish that defendant was advised of the hearing date, his right to participate remotely or the consequences of failing to appear or participate. As such, the record fails to establish that defendant voluntarily waived his right to participate in the hearing, where County Court may have had the opportunity to assess any cognitive impairment and its impact, if any, on the appropriate risk level classification. Therefore, without expressing any opinion as to the appropriate risk level, the order must be reversed and the matter remitted to County Court for a new risk level assessment hearing and a new determination, preceded by the required notice (see Correction Law § 168-n [3]). People v Santiago, 2025 NY Slip Op 02381, Thrid Dept 4-24-25

Practice Point: Here an email from the Department of Corrections stating defendant “is waiving his right to be present in court” was deemed insufficient to prove defendant was notified of the SORA risk-level-assessment hearing and voluntarily waived his right to be present, a due process violation.

Practice Point: Although defense counsel did not object to the hearing being held in defendant’s absence, the issue need not be preserved for appeal because defendant had “no practical ability to object.”

 

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WHERE, AS HERE, PLAINTIFFS ALLEGE THE CONTESTED SALES TAX STATUTE IS “WHOLLY INAPPLICABLE” TO THEM, AND PLAINTIFFS SEEK A DECLARATORY JUDGMENT TO THAT EFFECT, THE “EXHAUSTION OF ADMINISTRATIVE REMEDIES” REQUIREMENT IS NOT RELEVANT (THRID DEPT). ​

The Third Department, reversing (modifying) Supreme Court, determined some of the plaintiffs had not failed to exhaust their administrative remedies in this action contesting the imposition of sales tax on the construction and demolition inspection services provided by plaintiffs. There is an exception to the “exhaustion of administrative remedies” requirement where, as here, plaintiffs claim the tax statute at issue is “wholly inapplicable” to them:

… [T]he remaining plaintiffs did not, as Supreme Court held, fail to exhaust their administrative remedies. Generally, a taxpayer must utilize statutory administrative remedies prior to commencing an action against the taxing entity … . That said, there is an exception to this requirement when, as relevant here, a tax statute is attacked as wholly inapplicable to the plaintiff … . “To challenge a statute as wholly inapplicable, the taxpayer must allege that the agency had no jurisdiction over it or the matter that was taxed” … . “This exception to the rule [mandating exhaustion of administrative remedies] is limited to those cases where no factual issue is raised” concerning the subject matter of the tax dispute … .

The remaining plaintiffs qualify for the “wholly inapplicable” exception, as the complaint alleges that DTF [Department of Taxation and Finance] lacks jurisdiction because Tax Law § 1105 (c) (8) does not apply to their site safety services. Further, there are no factual issues at play here. * * * … [T]he complaint simply seeks a declaration that site safety services, as specifically defined in the New York City Building Code, are exempt from sales tax … . Site Safety LLC v New York State Dept. of Taxation & Fin., 2025 NY Slip Op 02255, Third Dept 4-17-25

Practice Point: Here plaintiffs alleged the relevant sales-tax statute was wholly inapplicable to them and sought a declaratory judgment to that effect. The proceeding therefore is excepted from the “exhaustion of administrative remedies” requirement.

 

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THE CHARGES STEMMED FROM A DEMONSTRATION SPARKED BY THE POLICE KILLING OF GEORGE FLOYD; DEFENDANT THREW TWO MOLOTOV COCKTAILS TOWARD POLICE OFFICERS; THE EVIDENCE DEFENDANT ENGAGED IN “TERRORISM” WAS LEGALLY INSUFFICIENT; SENTENCE REDUCED (THIRD DEPT).

The Third Department, vacating defendant’s “terrorism” conviction and significantly reducing his sentence, in a full-fledged opinion by Justice McShan, determined the “attempted aggravated assault upon a police officer as a crime of terrorism” conviction was not supported by legally sufficient evidence. The charges stemmed from a demonstration sparked by the police killing of George Floyd in 2020. The demonstration turned violent and defendant was captured on video throwing two Molotov cocktails toward police officers:

… “[T]he statute must be applied only in a manner consistent with the unique meaning of the term terrorism by requiring proof of conduct aimed at influencing, as relevant here, government action” … . More specifically, that the conduct was taken with the intent to influence a policy. The term “policy,” undefined in the statute (see Penal Law § 490.05), is readily understood as “[a] standard course of action that has been officially established by an organization, business, political party” … . In that sense, the phrase “influence the policy of a unit of government” encompasses a different intent on the part of a defendant that is more specific to a defined policy … . This is all the more evident when considering the clause that follows, as the interference with law enforcement duties referenced by the People is more aptly characterized as conduct that would “affect the conduct of a unit of government,” which contains [*5]the additional requirement that it be accomplished “by murder, assassination or kidnapping” (Penal Law § 490.25 [1]). The import of this distinction is that the reference to “policy” utilized in Penal Law § 490.25 (1) requires more than a belief that the government is engaging in some form of misconduct; in this case, systemic racism or police brutality.

… [T]he fact that defendant was motivated by his animus toward law enforcement does not in turn establish that he was attempting to influence any policy, either defined or perceived. People v Parker, 2025 NY Slip Op 02108, Third Dept 4-10-25

Practice Point: Consult this decision for a discussion of the proof requirements for “terrorism” in the context “assault upon a police officer as a crime of terrorism.”

 

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