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ALTHOUGH THE JUDGE INFORMED DEFENDANT HE COULD BE SUBJECT TO AN ENHANCED SENTENCE IF HE DIDN’T APPEAR FOR THE PRESENTENCE INVESTIGATION INTERVIEW OR GOT INTO TROUBLE BEFORE SENTENCING, THE JUDGE DID NOT SPECIFICALLY INFORM DEFENDANT HE WOULD BE SUBJECT TO AN ENHANCED SENTENCE IF HE DID NOT APPEAR FOR SENTENCING; SENTENCE VACATED (THIRD DEPT). ​

The Third Department, vacating defendant’s sentence and remitting the matter, determined defendant was not specifically informed that his failure to show up for sentencing could result in an enhanced sentence. Therefore the enhanced sentence was vacated:

In satisfaction of the indictment and other pending charges, defendant agreed to plead guilty to one count of falsely reporting an incident in the second degree and waive his right to appeal. He entered that plea upon the understanding that he would be sentenced, as a second felony offender, to two years in prison, to be followed by five years of postrelease supervision. County Court provided an oral Parker admonishment at the conclusion of the plea proceeding and warned defendant that, if he failed to appear for a scheduled presentence investigation interview or got “into further trouble, some new legal difficulties” before sentencing, it would not be bound by its sentencing commitment and could sentence him to up to four years in prison. * * *

“A sentencing court may not impose an enhanced sentence unless it has informed the defendant of specific conditions that the defendant must abide by or risk such enhancement, or give the defendant an opportunity to withdraw his or her plea before the enhanced sentence is imposed” … . As the People concede, County Court failed to “specifically inform [defendant] as part of the Parker admonishment that a consequence of failing to appear for sentencing was the imposition of a greater sentence” … . County Court therefore erred in imposing an enhanced sentence on that ground without first giving defendant an opportunity to withdraw his plea … . People v Gordon, 2026 NY Slip Op 01251, Third Dept 3-5-26

Practice Point: In order to impose a valid enhanced sentence if defendant fails to show up for sentencing, the judge must have specifically informed defendant of that possibility.. Here defendant was told he may receive an enhanced sentence if he didn’t attend the presentence investigation interview, which was not sufficient.

 

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THE EXECUTIVE LAW WHICH MAKES A LANDLORD’S REFUSAL TO ACCEPT TENANTS WHO RECEIVE SECTION 8 VOUCHERS AN UNLAWFUL DISCRIMINATORY PRACTICE IS UNCONSTITUTIONAL BECAUSE, AS A RESULT OF ACCEPTING SECTION 8 FUNDS, LANDLORDS MUST SUBMIT TO UNREASONABLE SEARCHES OF APARTMENTS AND RECORDS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Ceresia, determined Executive Law section 296(5)(a)(1) is unconstitutional. The statute makes a landlord’s refusal to rent to tenants who receive Section 8 housing vouchers an unlawful discriminatory practice. The landlords argued “the source-of-income discrimination law is unconstitutional on its face because it, in effect, requires landlords to take part in the Section 8 program, which in turn obligates them to consent to warrantless searches of their premises and records in violation of the Fourth Amendment:”

The particulars of respondents’ [landlords’] constitutional claim are as follows. By prohibiting discrimination based upon source of income, respondents argue, the Legislature has required landlords to accept Section 8 vouchers and, as a condition of participating in that program, agree to allow searches of their properties and records. More specifically, under the governing federal statutes and regulations, a potential Section 8 apartment must meet certain housing quality standards … , and in order to determine whether these standards are met, the local PHA [public housing agency] administering the program must perform an inspection of the apartment, the equipment that services the apartment and the common areas of the building before the apartment is occupied and again not less than biennially during the term of the tenancy … . Further, for purposes of assessing whether the rent charged by the landlord is reasonable, the landlord must make available to the PHA its records concerning the apartment in question as well as the amounts of rent it charges for other units, both in the building in question and in other buildings … . The landlord must sign a standard housing assistance payment (hereinafter HAP) contract, in which it agrees to provide “full and free access” to the apartment, the premises and all relevant accounts and records. Respondents contend that these inspection mandates force them to surrender the Fourth Amendment’s protections against governmental searches of private property in the absence of either voluntary consent or a warrant, neither of which are provided for here. * * *

An inspection scheme must assure that the discretion of the inspecting officers is “carefully limited in time, place, and scope” … , and we find that the Section 8 inspection regime lacks these safeguards. With respect to timing, although the regulations set benchmarks for when inspections should be performed at the outset of the tenancy and then at least once every two years thereafter there is no further guidance as to the frequency of the inspections and, indeed, they must be done whenever the PHA receives a complaint … . As for the place and scope of a search, while the regulations offer examples of interior spaces that may be searched and explain the purposes of the search, there are no limitations placed on what may be inspected. When combined with the HAP contract, which requires landlords to allow “full and free access to the contract unit and the premises, and to all accounts and other records of the owner that are relevant to the HAP contract,” the place and scope of a permissible search are exceedingly broad. Under these circumstances, the inspection scheme does not provide adequate safeguards … . Matter of People of the State of N.Y. v Commons West, LLC, 2026 NY Slip Op 01253, Third Dept 3-5-26

 

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THE REQUIREMENT IN THE LONG-TERM SOLITARY CONFINEMENT ACT (HALT ACT) THAT A HEARING BE HELD WITHIN FIVE DAYS OF PLACING AN INMATE IN A SEGREGATED HOUSING UNIT (SHU) IS “DIRECTORY,” NOT MANDATORY; THEREFORE ANY ISSUE RELATED TO A DELAY IN HOLDING THE HEARING MUST BE PRESERVED FOR REVIEW AND THE INMATE MUST DEMONSTRATE PREJUDICE CAUSED BY THE DELAY (THIRD DEPT).

The Second Department, in a full-fledged opinion by Justice McShan, determined the requirement that, under the Long-Term Solitary Confinement Act (HALT Act), a disciplinary hearing be held within five days of an inmate’s placement in a segregated housing (SHU) is directory, not mandatory. Therefore the issue must be preserved for review and the inmate must demonstrate prejudice resulting from any delay in holding the hearing:

… [W]hen examining the entirety of statutory provisions enacted by the HALT Act with respect to the use of segregated housing, numerous provisions expressly provide directives that limit respondent’s authority to utilize segregated housing or mandating that incarcerated individuals be released or diverted to RRU [residential rehabilitation unit] … . The exclusion of any such language from the time frame in which a hearing must be held after an incarcerated individual is placed in segregated housing suggests that it was not intended to deprive respondent of his authority to proceed with a hearing in the event of a violation. We therefore find that the language requiring that a hearing be completed no later than five days after an incarcerated individual is placed in prehearing segregated confinement remains directory under the HALT Act … . Matter of Guerrero v Martuscello, 2026 NY Slip Op 01263, Third Dept 3-5-26

 

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THE TRANSGENDER PETITIONER’S REQUEST TO SEAL THE RECORDS OF THE NAME-CHANGE PROCEEDINGS SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing Supreme Court’s denial of petitioner’s request to seal the court records, determined petitioner’s transgender status justified the sealing of the records of the name-change proceedings:

… “[W]hether to grant or deny a sealing request under Civil Rights Law § 64-a depends solely upon the potential for harm to the applicant arising from public access to a court record of the applicant’s name change proceeding” and “a court abuses its discretion by relying upon real or theoretical ‘public interest concerns’ to deny a Civil Rights Law § 64-a sealing request” … . Said directly, “[t]o decline to seal the record despite the applicant’s showing of jeopardy is to place the applicant at risk of the very harms the statute is meant to guard against” … .

Petitioner in this case affirmed his transgender status and indicated that he was seeking to change his name to one that reflects his male gender identity in conformance with the name he uses in his personal and professional life. Petitioner also expressed fear that exposure to the records from this proceeding would effectively expose his transgender status and expose him to increased risk for hate crimes, harassment and other discrimination. Those circumstances warrant entitlement to have the record of his name change proceeding sealed pursuant to Civil Rights Law § 64-a … . Matter of Abigail X., 2026 NY Slip Op 01104, Third Dept 2-26-26

 

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HERE THE “PRIMARY JURISDICTION DOCTRINE” DID NOT APPLY TO REQUIRE A STAY TO ALLOW THE PUBLIC SERVICE COMMISSION (PSC) TO DETERMINE WHETHER “STRAY VOLTAGE” WAS CAUSING INJURY TO PLAINTIFF’S CATTLE AND, IF SO, HOW BEST TO MITIGATE OR REMEDIATE; THE PSC HAS NO SPECIAL EXPERTISE REGARDING THE EFFECTS OF STRAY VOLTAGE ON CATTLE; THE ISSUES ARE BEST HANDLED BY A COURT, DESPITE THE COMPETING EXPERT OPINIONS (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Garry, determined the “primary jurisdiction doctrine” did not require that the civil action be stayed to allow the Public Service Commission (PSC) to determine whether “stray voltage” was harming plaintiff’s cattle and, if so, how the problem can be mitigated or remediated. Plaintiff, a cattle farmer, sued defendant electric company (which services the farm) alleging that “stray voltage” has caused “behavioral changes [in the cattle], decreased milk production, fertility issues and other health problems.” The Third Department held that the Public Service Commission was not better suited to deal with the issues presented by “stray voltage” than the court:

Assuming, without deciding, that the regulatory scheme is an appropriate means to address some of the issues underlying these tort claims … , compliance with regulatory standards is not dispositive as to due care … . Upon a stay and referral, the PSC [Public Service Commission] would have only the authority to determine whether defendant is presently operating in compliance with its administrative standards, which set forth minimum, generalized safety requirements. As PSC asserts and as evidenced by the opinions and reports of plaintiffs’ experts, the duty of care with respect to stray voltage on dairy farms may be quite different from this regulatory floor. The PSC also admittedly has no expertise in the impact of stray voltage on cattle and has advised that it would be necessary to seek out the opinion(s) of its own experts if tasked with evaluating whether any stray voltage here is “harmful” or merits mitigation beyond the aforementioned standards. * * *

As plaintiffs argue, the claims at issue, which do not arise from the PSC’s rules, regulations or policies, are common-law tort claims, requiring determinations as to familiar concepts such as duty and causation, and are inherently judicial … . As with other complicated areas of tort, the necessary expertise is initially supplied by the parties’ experts. To the extent that the divergence between those experts on scientific principles may necessitate additional guidance, Supreme Court possesses the authority to utilize a referee or court-appointed neutral expert to aid in the review of complex litigation where appropriate (see CPLR 4001, 4212 …). In sum, although the PSC’s opinion as to the existence, origin or degree of stray voltage may be informative, resolution of plaintiffs’ claims do not first require resolution of issues placed within the agency’s special competence. Frasier v Niagara Mohawk Power Corp., 2026 NY Slip Op 01110, Third Dept 2-26-26

Practice Point: Consult this opinion for insight into when the “primary jurisdiction doctrine” should be applied to stay a court proceeding to allow an agency to investigate and offer guidance on the underlying issues. Here the Third Department held that the Public Service Commission did not have expertise on the issues underlying the trial, so the “primary jurisdiction doctrine” did not require that the civil action be stayed pending a PSC investigation.

 

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PETITIONER, A PROTECTION AND ADVOCACY AGENCY FOR DISABLED PERSONS, WAS NOT ENTITLED TO UNFETTERED ACCESS TO RECORDS OF ABUSE KEPT BY RESPONDENT JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS; THE PRIVACY INTERESTS OF THE DISABLED PERSONS REQUIRE THAT PERSONS FOR WHOM THE RECORDS ARE SOUGHT BE SPECFICALLY IDENTIFIED ALLOWING RESPONDENT TO DETERMINE WHETHER ANY OF THE GROUNDS FOR RELEASE OF THE RECORDS DESCRIBED IN THE FEDERAL DEVELOPMENTAL DISABILITIES ASSISTANCE AND BILL OF RIGHTS ACT APPLY (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Mackey, determined that the petitioner, a protection and advocacy (P & A) agency representing persons with developmental disabilities, did not have the right to unfettered access to records of abuse investigations by the respondent Justice Center for the Protection of People with Special Needs. Before access to such records can be granted, the respondent must be provided with the name of the allegedly abused person. At that point the respondent can determine whether any of the grounds for release of the records is applicable:

Our inquiry here distills to whether petitioner is entitled — in executing its investigatory, oversight function as a P & A entity — to unqualified access to records pertaining to the abuse and/or neglect of persons with developmental disabilities within subject facilities, or whether respondents properly conditioned such access upon satisfaction of the disclosure requirements delineated under the DD Act [Developmental Disabilities Assistance and Bill of Rights Act (see 42 USC § 15001 et seq.]. * * *

Satisfaction of the disclosure requirements under the DD Act thus necessitate the identification of the subject individual to either secure necessary consent or determine if circumstances otherwise permit disclosure. The result is “a carefully calibrated system that t[akes] into consideration both the privacy interests of developmentally disabled persons and the need for P & A organizations to examine records in order to pursue their statutory functions” … . Here, although petitioner’s request for records advised that it had received complaints regarding a particular facility subject to respondents’ oversight, it did not identify the subject(s) of the complaints or provide respondents any information that would allow respondents to determine whether one of the four circumstances enumerated in the DD Act applied. Nothing in the federal statutory language supports petitioner’s contention that it is permitted unqualified access to records in furtherance of its investigatory role. To the contrary, petitioner’s access is expressly conditioned upon satisfaction of one of the four above-detailed scenarios, which necessitate the identification of the individual(s) whose records are sought … . Matter of Disability Rights N.Y. v State Justice Ctr. for the Protection of People with Special Needs, 2026 NY Slip Op 01111, Third Dept 2-26-26

 

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THE MORTGAGE DEBT WAS ACCELERATED WHEN THE FIRST FORECLOSURE ACTION WAS BROUGHT IN 2008; THE DEFENDANTS SUBSEQUENTLY ENTERED A LOAN MODIFICATION AGREEMENT IN 2008 WHICH DEACCELERATED THE DEBT AND RESET THE STATUTE OF LIMITATIONS; THE DEFENDANTS DEFAULTED AGAIN IN 2009; IN 2018 THE DEBT WAS ACCELERATED AGAIN BY THE FILING OF THE INSTANT FORECLOSURE ACTION; BECAUSE THE SIX-YEAR STATUTE OF LIMITATIONS STARTS RUNNING FROM EACH MISSED PAYMENT, THE 2018 FORECLOSURE ACTION WAS TIMELY BROUGHT (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, determined the foreclosure action was timely brought. The mortgage was initially accelerated in 2008 when the first foreclosure action was brought. But later in 2008 the defendants entered a loan modification agreement. That agreement validly revoked the acceleration of the debt and reset the statute of limitations. Defendants again defaulted on the mortgage payments in 2009. They argued that the statute of limitations started running upon their 2009 default, rendering the current foreclosure action untimely. The Third Department disagreed, finding that the plaintiff was not obligated to foreclose upon the first missed payment. Rather the plaintiff could wait and accelerate the debt upon any subsequent default, subject to the forfeiture of the right to recover any missed payments which occurred more than six years before the action was brought (each missed payment triggers a six-year statute of limitations):

… [P]laintiff submitted evidence establishing that the 2008 acceleration was validly revoked through the execution of the loan modification agreement, thereby causing the statute of limitations to reset as of that date. Defendants do not dispute that, even after FAPA [Foreclosure Abuse Prevention Act], a validly executed loan modification agreement can reset the statute of limitations period on a previously accelerated loan, so long as the agreement complies with the writing requirements of General Obligations Law § 17-105 (1) … . * * *

Nothing in FAPA or the General Obligations Law changed the basic rule that the statute of limitations runs separately from the due date of each unpaid installment … , or, if the mortgagee elects to accelerate the entire debt, from the date of the acceleration … . * * *

Defendants’ missed payments in 2009 gave plaintiff the right to sue to recover such payments, but did not obligate plaintiff to do so. Instead, plaintiff could wait to exercise its option to accelerate the entire amount of the debt upon any subsequent default, in which case the statute of limitations would run from the date of the acceleration … , subject to forfeiture of the right to recover any missed payments that did not occur within six years prior to the commencement of the foreclosure action … . Ditech Fin. LLC v Temple, 2026 NY Slip Op 00951, Third Dept 2-19-26

Practice Point: A loan modification agreement entered within six years of the 2008 acceleration of the debt deaccelerated the debt and reset the statute of limitations (a scenario not changed by the Foreclosure Abuse Prevention Act [FAPA]).

Practice Point: The six-year foreclosure statute of limitations starts running upon each missed mortgage payment. Here the 2018 foreclosure action was timely because it was brought within six years of a missed payment. Any missed payments which occurred prior to six years before the 2018 foreclosure was commenced were forfeited.

 

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THE MISTRIAL, GRANTED AFTER THE JURY WAS SWORN, DID NOT TRIGGER THE DOUBLE-JEOPARDY BAR TO FURTHER PROSECUTION BECAUSE THE JUDGE’S INQUIRY REVEALED THAT A JUROR’S COMMENTS, AND THE OTHER JURORS’ REACTIONS TO THOSE COMMENTS, IRREPARABLY TAINTED THE JURY (THIRD DEPT). ​

The Third Department, dismissing the defendant’s (respondent’s) prohibition petition, in a full-fledged opinion by Justice Mackey, determined that the mistrial granted after the jury had been sworn did trigger the double-jeopardy bar to further prosecution because the trial judge (the respondent) properly found “there was manifest necessity for the mistrial.” Comments made by juror No. 5, and other jurors reactions to the comments, irreparably tainted the jury:

… CPL 280.10 authorizes the court to declare a mistrial “[u]pon motion of the people, when there occurs during the trial, either inside or outside the courtroom, gross misconduct by . . . a juror, resulting in substantial and irreparable prejudice to the people’s case” … . * * *

… [J]uror No. 5’s comments and flagrant disregard for respondent’s admonitions resulted in “substantial and irreparable prejudice” to the People’s case (CPL 280.10 [2]). Although each juror averred that they could nevertheless remain fair and impartial, the record supports respondent’s contrary conclusion in light of the hesitation of many jurors to disclose juror No. 5’s conduct, the denial of others as to having heard any of the subject comments at all and another juror who gave contradictory answers about what he had heard, notwithstanding respondent’s instructions to report improper attempts to influence the jury. Matter of Guiden v Jose-Decker, 2026 NY Slip Op 00942, Third Dept 2-19-26

Practice Point: Consult this opinion for insight into the procedure to be followed by the judge before granting a mistrial after the jury has been sworn. To avoid the double-jeopardy bar to further prosecution, the record must demonstrate “a manifest necessity for a mistrial.”

 

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RETROACTIVE APPLICATION OF THE FORECLOSURE ABUSE PROTECTION ACT (FAPA) DOES NOT VIOLATE THE TAKINGS CLAUSE OF THE US AND NY CONSTITUTIONS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined retroactive application of the Foreclosure Abuse Prevention Act (FAPA) does not violate the Takings Clause of the US and NY Constitutions. The Court of Appeals has already ruled that retroactive application of FAPA does not violate due process or the Contract Clause:

“Those who do business in [a] regulated field cannot object if the legislative scheme is buttressed by subsequent amendments to achieve the legislative end” … Federal Natl. Mtge. Assn. v Marshall, 2026 NY Slip Op 00946, Third Dept 2-19-26

 

PETITIONER LEASED COMMERCIAL TRUCKS; AT THE OUTSET OF THE LEASE PETITIONER PAID SALES TAX BASED ON THE ESTIMATED RENT; IF, AT THE END OF THE LEASE, THE ACTUAL RENT WAS LOWER THAN THE ESTIMATED RENT, PETITIONER REFUNDED THE EXCESS RENT AND SALES TAX; PETITIONER THEN TOOK CREDITS FOR THE REFUNDED SALES TAX; THE TAX TRIBUNAL FOUND PETITIONER COULD NOT TAKE THOSE CREDITS AND IMPOSED A SALES TAX ASSESSMENT OF NEARLY $3 MILLION; THE THIRD DEPARTMENT ANNULLED THE ASSESSMENT FINDING THE CREDITS PROPER (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, annulled the Tax Appeals Tribunal’s sustaining of a nearly $3 million sales tax assessment imposed on petitioner. Petitioner leased commercial trucks. At the outset of the lease petitioner paid sales tax based on the estimated rent. At the end of the lease the actual rent was calculated based upon the value of the truck. If the actual rent was lower than the estimated rent paid at the outset, the excess rent and sales tax was refunded. Petitioner took tax credits for those refunds. The Third Department determined taking the credits was proper. Matter of Gelco Corp. v State of N.Y. Tax Appeals Trib., 2026 NY Slip Op 00553, Third Dept 2-5-26

 

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