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THE EMPLOYER’S WORKERS’ COMPENSATION CARRIER WAS ENTITLED, PURSUANT TO WORKERS’ COMPENSATION LAW SECTION 15(3)(W), TO TAKE CREDIT TOWARD AWARDS OF TEMPORARY DISABILITY (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined the Workers’ Compensation Board properly held that the employer’s workers’ compensation carrier was entitled, pursuant to Workers’ Compensation Law section 15 (3)(w), to take credit toward awards of temporary disability. The opinion is too detailed to fairly summarize here.:

On December 19, 2017, claimant was involved in a work-related accident, and his subsequent claim for workers’ compensation benefits was established for injuries to his back, thoracic spine and both shoulders. Awards were made at various rates for periods of temporary disability and lost time beginning on December 20, 2017. In April 2021, claimant’s treating pain management specialist opined that claimant had reached maximum medical improvement (hereinafter MMI) with respect to his lumbar spine, and, in November 2021, the carrier’s consultant in physical medicine and rehabilitation, who conducted an independent medical examination of claimant, found that MMI in the field of physical medicine and rehabilitation had been established. In a June 2022 decision, a Workers’ Compensation Law Judge (hereinafter WCLJ) directed the parties to produce medical evidence of permanency. Following subsequent examinations for permanency, as well as deposition testimony from several of the physicians who examined claimant for permanency and testimony from claimant, the WCLJ, in a November 2022 decision, classified claimant as having a permanent partial disability with a loss of wage-earning capacity of 65%, entitling him to 375 weeks of compensation at the specified rate. The WCLJ also found that, pursuant to Workers’ Compensation Law § 15 (3) (w), the employer’s workers’ compensation carrier was entitled to a credit against the number of statutory cap weeks based upon its payment of 78.8 weeks of awards to claimant for periods of temporary partial disability after June 16, 2020 — the 130th week following the accident of record. Matter of Quoma v Bob’s Discount Furniture, 2025 NY Slip Op 03610, Third Dept 6-12-25

 

THE SANCTION THAT PETITIONER BE CONFINED TO A SPECIAL HOUSING UNIT (SHU), NOW KNOWN AS SEGRETATED CONFINEMENT, FOR 730 DAYS VIOLATED THE HUMANE ALTERNATIVES TO LONG-TERM SOLITARY CONFINEMENT ACT (HALT ACT); THE CORRECTION LAW LIMITS SUCH CONFINEMENT TO 15 CONSECUTIVE DAYS (THIRD DEPT).

The Third Department, in a full fledged opinion by Justice Pritzker, determined that the Humane Alternatives to Long-Term Solitary Confinement Act (the HALT Act) prohibited petitioner’s confinement in a special housing unit (SHU), now known as segregated confinement, for 730 days. The maximum permitted by the Correction Law is 15 consecutive days:

… [P]ursuant to Correction Law § 137 (6) (k) (i), DOCCS [NYS Department of Corrections and Community Supervision] “may place a person in segregated confinement for up to three consecutive days and no longer than six days in any [30-]day period if, pursuant to an evidentiary hearing, it determines that the person violated [DOCCS] rules which permit a penalty of segregated confinement. [DOCCS] may not place a person in segregated confinement for longer than three consecutive days or six days total in a [30-]day period unless the provisions of subparagraph (ii) . . . are met.” … Correction Law § 137 (6) (k) (ii) provides that DOCCS “may place a person in segregated confinement beyond the limits of subparagraph (i) . . . or in [an RRU] only if, pursuant to an evidentiary hearing, it determines by written decision that the person committed one of [certain statutorily provided] acts and if the [C]ommissioner or his or her designee determines in writing based on specific objective criteria the acts were so heinous or destructive that placement of the individual in general population housing creates a significant risk of imminent serious physical injury to staff or other incarcerated persons, and creates an unreasonable risk to the security of the facility.” Although Correction Law § 137 (6) (k) (ii) does not contain a specific temporal limitation, this can be found in Correction Law § 137 (6) (i) (i), which provides, with certain exceptions, that “[n]o person may be placed in segregated confinement for longer than necessary and no more than [15] consecutive days. Nor shall any person be placed in segregated confinement for more than [20] total days within any [60-]day period.” Given these limitations, we find that not only the penalty imposed by the Hearing Officer, but also the reduced penalty of 730 days in SHU, violates the HALT Act. Matter of Peterkin v New York State Dept. of Corr. & Community Supervision, 2025 NY Slip Op 03617, Third Dept 6-12-25

 

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THE JUDGE’S PROVIDING ERRONEOUS INFORMATION ABOUT THE MAXIMUM SENTENCE DEFENDANT WAS FACING NEED NOT BE PRESERVED FOR APPEAL AND RENDERED THE GUILTY PLEA INVOLUNTARY (THIRD DEPT).

he Third Department, reversing defendant’s conviction by guilty plea, determined the judge’s providing erroneous information about the maximum sentence defendant was facing did not need to be preserved for appeal and rendered the guilty plea involuntary:

… County Court advised [defendant] that, if he elected to proceed to trial and was convicted of all offenses as a second felony drug offender, he faced a sentencing exposure of 36 years in prison rather than the correct, capped term of 30 years … . … [A]s the Court of Appeals recently made clear, where “the court provides the defendant with erroneous information concerning their maximum sentencing exposure that is contrary to the undisputed text of the Penal Law, fails to correct its error on the record, and the defendant has no apparent reason to question the accuracy of that information, the defendant need not preserve a challenge to the voluntariness of the guilty plea on that ground” … . * * *

Although defendant here was no stranger to the criminal justice system and received a reasonable sentencing commitment from County Court, the plea colloquy itself reflects that defendant believed that he had been overcharged and questioned whether he would be convicted if he went to trial. Defendant made clear during the plea colloquy, in fact, that he was only pleading guilty to the indictment because he would rather[*3]”get the high/low of 16/14″ than go to trial and risk “more time in state prison.” Even then, defendant remained conflicted about pleading guilty until the moment he entered his formal plea, asking County Court immediately before he did so to repeat the potential sentencing exposure he faced if he did not “want to go through all of this and [went] to trial.” … .People v Shaw, 2025 NY Slip Op 03358, Third Dept 6-5-25

Practice Point” Here the judge told defendant he was facing 36 years in prison when the actual maximum was 30. That error need not be preserved for appeal and, based on defendant’s remarks and questions at sentencing, was deemed to have rendered defendant’s guilty plea involuntary.

 

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HERE A MOTION TO RENEW AN APPEAL WAS GRANTED AND THE PRIOR APPELLATE DECISION WAS VACATED BASED ON THE ENACTMENT OF THE FORECLOSURE ABUSE PREVENTION ACT (FAPA); THE THIRD DEPARTMENT HAD HELD THE FORECLOSURE ACTION WAS TIMELY BECAUSE THE BANK HAD DE-ACCELERATED THE DEBT; BUT FAPA RENDEREDTHE DE-ACCELERATION INVALID; SO THE INITIAL SUPREME COURT DECISION GRANTING SUMMARY JUDGMENT TO THE DEFENDANTS WAS REINSTATED (THIRD DEPT).

The Third Department granted defendants’ motion to renew an appeal and vacated its prior decision because of the subsequent enactment of the Foreclosure Abuse Prevention Act (FAPA). The Third Department had reversed summary judgment in defendants’ favor on the ground the bank had de-accelerated the debt rendering the foreclosure action timely. But the FAPA now precludes such a de-acceleration and applies retroactively. Therefore Supreme Court’s decision granting summary judgment dismissing the foreclosure action was reinstated:

Defendants now move to renew, contending that the enactment of the Foreclosure Abuse Prevention Act (hereinafter FAPA) is a change in law that requires reversal of our prior decision. Specifically, defendants claim that the second action is now barred by the statute of limitations because FAPA applies retroactively, and such law prohibits the reset of a statute of limitations by the unilateral act of a party such as by a de-acceleration letter. * * *

… [S]ince the second action was brought more than six years after plaintiff accelerated the debt, it is barred by the statute of limitations applicable to foreclosure actions … . Thus, defendants’ motion to renew is granted and this Court’s previous decision is vacated. On the merits of the underlying appeal, pursuant to FAPA, defendants were entitled to summary judgment dismissing the complaint. Accordingly, we affirm the judgment of Supreme Court, albeit on different grounds. HSBC Bank, USA, N.A. v Bresler, 2025 NY Slip Op 03363, Third Dept 6-5-25

Practice Point: Although the issue was not discussed in the Third Department’s decision, apparently CPLR 2221 [e] [2] applies to a motion for renewal of an appeal.

 

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“NO TRESPASSING” AND “PRIVATE PROPERTY” SIGNS WERE POSTED ON THE PROPERTY WHERE DEFENDANT’S VEHICLE WAS PARKED; THEREFORE THE DEPUTY WHO WALKED UP THE DRIVEWAY TO EXAMINE DEFENDANT’S VEHICLE CONDUCTED AN ILLEGAL, WARRANTLESS SEARCH; THE VEHICLE, DEFENDANT’S STATEMENTS AND THE EVIDENCE SEIZED PURSUANT TO SUBSEQUENT SEARCH WARRANTS SHOULD HAVE BEEN SUPPRESSED; THE VEHICLE HAD BEEN INVOLVED IN A FATAL ACCIDENT AND THE DRIVER HAD FLED THE SCENE (THIRD DEPT).

The Third Department, reversing defendant’s conviction and granting the motion to dismiss, determined the posted “No Trespassing” and “Private Property” signs created “a reasonable expectation of privacy” for the driveway of the property where defendant’s vehicle was parked. Therefore, the deputy who walked up the driveway to examine the defendant’s vehicle conducted an illegal search. The vehicle, which had stuck and killed one bicyclist and seriously injured another, as well as the defendant’s statements and evidence seized pursuant to subsequent search warrants, should have been suppressed:

… [T]wo bicyclists were struck by a motor vehicle … . One bicyclist died, and the other was severely injured. The driver fled the scene. After speaking with witnesses and collecting physical evidence from the roadway, the police determined that the involved vehicle was a gray Jeep Cherokee. At some point thereafter, a sheriff’s deputy discovered a vehicle matching this description parked in the driveway on property where defendant resided as a tenant. Because the front of the vehicle was not visible from the street, the deputy walked up the driveway in order to perform a closer inspection. Alongside the driveway were posted signs stating, “No Trespassing” and “Private Property.” The deputy observed blood on, and front-end damage to, the vehicle, consistent with the crash, and radioed his findings to his fellow law enforcement officers. In response, a sheriff’s investigator traveled to the residence. After conferring with the deputy, the investigator talked to the owner of the property and obtained surveillance footage. The investigator then spoke to defendant and secured her consent to search the vehicle. Defendant was taken to a hospital for a blood test and to the State Police barracks for a further interview. The investigator later applied for and obtained two search warrants, one for the vehicle and the other for defendant’s cell phone records. * * *

“Warrantless searches and seizures within the privacy of the home are presumptively unreasonable, subject only to carefully circumscribed exceptions to the warrant requirement” … . That said, a person will not necessarily be entitled to the same protection in a private driveway leading to a home unless he or she has exhibited “some outward manifestation” of a reasonable expectation of privacy in this area … . In that regard, New York law recognizes that the posting of a “No Trespassing” sign on private property constitutes such a manifestation … . Therefore, a police officer seeking to conduct a search on posted property may only do so with a warrant or while operating under a recognized exception to the warrant requirement … . People v Suprunchik, 2025 NY Slip Op 03364, Third Dept 6-5-25

Practice Point: The posting of “No Trespassing” of “Private Property” signs on the curtilage of a residence manifests a reasonable expectation of privacy in the curtilage and triggers the need for a warrant before entering the curtilage. Here the deputy walked up the driveway to inspect a vehicle which the deputy suspected had been involved in a fatal accident. The deputy saw blood on the front of the vehicle. That was an illegal warrantless search requiring suppression of the vehicle, statements made by the defendant, and evidence seized pursuant to subsequent search warrants.

 

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THE TAX APPEALS TRIBUNAL’S DETERMINATION THAT PETITIONERS CANNOT REDUCE THEIR NEW YORK ADJUSTED GROSS INCOME BY THE AMORTIZED PREMIUMS ON THEIR OUT-STATE-BONDS UPHELD (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Fisher, upheld the Tax Appeals Tribunal’s determination that petitioners can not reduce their New York adjusted gross income by amortized premiums on their out-of-state bonds:

Petitioners are married and residents of New York. During the years 2012 through 2016 (hereinafter the years at issue), they engaged in an investment strategy that included purchasing out-of-state bonds on the secondary market. Due to the initial interest rate of the bonds being higher than the prevailing market rate at the time of purchase, petitioners also paid an additional premium to acquire the bonds. Where the duration of a bond exceeded one year, petitioners further made an upfront premium payment for each remaining year until the bond’s maturity. As relevant here, the amount of the premium paid for each year of the bond is called the amortized premium.

On their respective tax returns for the years at issue, petitioners sought to reduce their New York adjusted gross income by the amortized premiums on their out-of-state bonds. Following an audit, notices of deficiency were issued to petitioners by the Department of Taxation and Finance (hereinafter the Department) stating that they owed additional income taxes for the years at issue, plus interest and penalties. Thereafter, the Department determined that petitioners could not subtract the premiums directly from their interest income, but rather may only report such premiums as part of their itemized deduction, and ultimately issued notices of disallowance. Matter of Ciardullo v McDonnell, 2025 NY Slip Op 03365, Third Dept 6-5-25

 

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THE STATUTE OF LIMITATIONS FOR BREACH OF FIDUCIARY DUTY BEGINS TO RUN WHEN THERE HAS BEEN AN OPEN REPUDIATION OF FIDUCIARY OBLIGATIONS; HERE THERE HAS NOT BEEN SUCH AN OPEN REPUDIATION; THE STATUTE NEVER BEGAN TO RUN AND THE MOTION TO DISMISS THE SHAREHOLDER DERIVATIVE ACTION AS UNTIMELY SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that this shareholder derivative action, which alleged breach of fiduciary duty, should not have been dismissed as time barred. Open repudiation of the the fiduciary obligation, which triggers the running of the statute of limitations, never occurred:

To dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired” … . “[C]laims alleging a breach of fiduciary duty do not accrue until there is either an open repudiation of the fiduciary obligation or a judicial settlement of the account” … . This is so because, “absent either repudiation or removal, the aggrieved part[y] [is] entitled to assume that the fiduciary would perform his or her fiduciary responsibilities” … . “The party asserting the statute of limitations defense bears the burden of proof on the issue” … . “Open repudiation requires proof of a repudiation by the fiduciary which is clear and made known to the beneficiaries” … . “Where there is any doubt on the record as to the conclusive applicability of a [s]tatute of [l]imitations defense, the motion to dismiss the proceeding should be denied, and the proceeding should go forward” … .

Here, defendants did not proffer, or even assert, that they have openly repudiated their obligations as fiduciaries or that the relationship has otherwise terminated. Lambos v Karabinis, 2025 NY Slip Op 03367, Third Dept 6-5-25

Practice Point: Here there was never an open repudiation of fiduciary obligations so the statute of limitations on the breach-of-fiduciary-duty cause of action never began to run.

 

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HERE FATHER MOVED TO DISMISS MOTHER’S PETITION TO MODIFY CHILD SUPPORT AT THE CLOSE OF MOTHER’S PROOF; AT THAT STAGE OF THE PROCEEDINGS THE COURT MUST ACCEPT PETITIONER’S EVIDENCE AS TRUE AND RESOLVE ALL CREDIBILITY QUESTIONS IN PETITIONER’S FAVOR; THE MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

he Third Department, reversing Family Court’s dismissal of mother’s petition to modify child support, determined that the judge applied the wrong standard when deciding father’s motion to dismiss at the close of mother’s proof. At that stage the judge must accept petitioner’s evidence as true, and must resolve all credibility issues in petitioner’s favor. The judge’s comments on witness credibility indicated the correct standard was not applied:

A noncustodial parent’s statutory duty to support his or her child until they reach 21 years of age may be suspended where the noncustodial parent establishes that the custodial parent has wrongfully interfered with or withheld visitation rights … . Although the parent seeking such suspension must ultimately demonstrate “deliberate frustration” or “active interference” with their visitation rights by a “preponderance of the evidence” … , where, as here, “Family Court is tasked with deciding a motion to dismiss at the close of the petitioner’s proof, the court must accept the petitioner’s evidence as true and afford the petitioner every favorable inference that could reasonably be drawn from that evidence, including resolving all credibility questions in the petitioner’s favor” … . * * *

Family Court’s commentary on witness credibility in resolving the subject motion to dismiss suggests to this Court that an incorrect legal standard was applied … . When viewed in the proper light, we find that the … proof was sufficient to withstand a motion to dismiss …  Thus, without passing judgment upon the ultimate success of the mother’s claim, we reverse. Matter of Crystal NN. v Joshua OO, 2025 NY Slip Op 03368, Third Dept 6-5-25

Practice Point: In this modification of child support proceeding, father moved to dismiss mother’s petition at the close of mother’s proof. In evaluating the motion at that stage of the proceedings, the court must accept all of petitioner’s evidence as true, afford the petitioner all favorable inferences from the evidence, and resolve all credibility issues in petitioner’s favor. The failure to apply those standards to consideration of the motion to dismiss requires reversal.

 

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AN ADMINISTRATIVE PROCEEDING WAS BROUGHT BY THE UNIVERSITY AGAINST PETITIONER-STUDENT BASED UPON ANOTHER STUDENT’S (THE REPORTING INDIVIDUAL’S) ALLEGATIONS SHE WAS SEXUALLY ASSAULTED; THE UNIVERSITY’S TITLE IX GRIEVANCE POLICY PROVIDES THAT WHERE, AS HERE, THE REPORTING INDIVIDUAL IS ABSENT FROM THE HEARING AND IS NOT SUBJECT TO CROSS-EXAMINATION, ANY DETERMINATION BY THE UNIVERSITY CANNOT BE BASED UPON STATEMENTS ATTRIBUTED TO THE REPORTING INDIVIDUAL; THE DETERMINATION WAS ANNULLED ON THAT GROUND (THIRD DEPT).

The Third Department, annulled the university’s determination petitioner had violated the university’s “Community Rights and Responsibilities” by sexually assaulting the reporting individual. Petitioner did not deny kissing an touching the reporting individual, but contended all the interactions were consensual. The reporting individual did not testify at the hearing. The university’s Title IX grievance policy provides that, when the reporting individual does not testify and is not subject to cross-examination, the determination cannot be based upon any statement attributed to the reporting individual. Here statements by the reporting individual were the basis for the university’s determination:

Petitioner contends that he was denied due process because he was not afforded the opportunity to question the reporting individual, who did not testify at the hearing or otherwise submit to cross-examination. Under the circumstances presented here, we agree and conclude that annulment is required. “In general, there is a limited right to cross-examine an adverse witness in an administrative proceeding, and the right to cross-examine witnesses generally has not been considered an essential requirement of due process in school disciplinary proceedings” … . Nevertheless, “[i]t is well established that once having adopted rules or guidelines establishing the procedures to be followed in relation to suspension or expulsion of a student, colleges or universities — both public and private — must substantially comply with those rules and guidelines” … . Matter of Bibler v State Univ. of N.Y. at Albany, 2025 NY Slip Op 03373, Third Dept 6-5-25

Practice Point: In a university disciplinary proceeding stemming from an allegation of sexual assault, the right to cross-examine the accuser is not considered an essential requirement of due process. However, the university is required to abide by its own rules. Here the rules stated that, where the accuser is absent from the hearing and is not cross-examined, the university’s determination cannot be based upon statements made by the accuser. The university’s failure to comply with that rule required that the determination be annulled.

 

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THE NYS DEPARTMENT OF EDUCATION’S CALCULATION OF THE STUDENT TUITION TO BE PAID TO CHARTER SCHOOLS UPHELD (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Ceresia, upheld the NYS Education Department’s calculation of the student tuition to be paid to petitioners, operators of charter schools in New York City. The calculation was not “arbitrary or capricious.” Matter of Coney Is. Preparatory Pub. Charter Sch. v New York State Educ. Dept., 2025 NY Slip Op 03374, Third Dept 6-5-25

 

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