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THE ICY CONDITION WAS CREATED BY “POCKETS OF FREEZING RAIN” FROM MIDNIGHT TO 3:45 AM; THERE WAS NO “STORM;” THE “STORM-IN-PROGRESS” DOCTRINE SHOULD NOT HAVE BEEN APPLIED IN THIS SLIP AND FALL CASE (THIRD DEPT).

The Third Department, reversing the nonjury verdict in the Court of Claims in this parking-lot slip and fall cause, over a dissent, determined the defendant state had actual and constructive knowledge of the icy condition and the storm-in-progress doctrine did not apply:

​The evidence establishes that defendant had actual notice of the icy conditions caused by the pockets of freezing rain and called in an employee to take appropriate measures to correct the dangerous condition by implementing defendant’s usual precautions of sanding/salting all paved areas accessible to the sander trucks. Even assuming that the record was insufficient to establish actual notice, we are satisfied that defendant had constructive notice of the dangerous condition in the location of claimant’s slip and fall. Based on the expert’s testimony of icy conditions forming through 3:45 a.m., defendant should have been aware of the slippery conditions on untreated surfaces between approximately 12:00 a.m. and 2:00 a.m., the time when defendant’s employee was performing “multiple” salting and sanding passes on the facility’s roads for “safety,” approximately five to seven hours before claimant’s fall, which is a sufficient time to establish constructive notice … . * * *

… [T]he event in question amounted to “pockets of freezing rain” that fell from approximately midnight until 3:45 a.m. and caused a glaze of ice measuring .05 to 0.1 inches. Defendant begs the question when it immediately argues that it is entitled to a “reasonable period of time” from 3:45 a.m. to address the condition. The threshold question is the applicability of the doctrine in the first instance. While it may be true that there is no need to establish the existence of a major winter event in order to apply the doctrine, it is equally true that there must be some sort of ongoing hazardous weather condition, i.e., a “storm” that amounts to more than an “appreciable accumulation” … . The storm in progress doctrine is not to be applied whenever any type of inclement weather exists and, given the unrefuted testimony of claimant’s expert meteorologist, it has no place in this litigation. Powers v State of New York, 2026 NY Slip Op 01833, Third Dept 3-26-26

Practice Point: In order for the storm-in-progress doctrine to be applicable, there must have been a “storm.” Here “pockets of freezing rain” did not constitute a “storm.”

 

NEW YORK’S MARIHUANA REGULATION AND TAXATION ACT (MRTA) IS NOT PREEMPTED BY THE FEDERAL CONTROLLED SUBSTANCES ACT (CSA) (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Fisher, determined New York’s Marihuana Regulation and Taxation Act (MRTA) which allows the sale and use of marihuana, is not preempted by the federal Controlled Substance Act, which does not allow the sale and use of marihuana:

… [W]e turn to petitioners’ contention that the challenged regulations promulgated under MRTA — which authorizes the sale, use and distribution of marihuana — create a positive conflict with the CSA prohibiting these exact actions. We find that no such conflict exists. Consistent with the main objectives of the CSA, the legislative intent behind MRTA was to, among other things, “regulate, control, . . . reduce the illegal drug market and reduce violent crime, reduce participation of otherwise law-abiding citizens in the illicit market . . . [and] protect the public health, safety and welfare of the people of the state” … . In doing so, the Legislature specifically provided that nothing in MRTA was “to require any individual to engage in any conduct that violates federal law or to exempt anyone from any requirement of federal law or pose any obstacle to the federal enforcement of federal law” … . Each of the challenged parts 113, 128 and 129 within title 9 of the NYCRR further these principles by regulating the legitimate and illegitimate handling of marihuana by setting specific restrictions on prescribers, manufacturers and retailers — including, as specifically challenged by petitioners, how medical and adult-use marihuana could be labeled, advertised and marketed … . When considered through the lens of a conflict preemption analysis, although petitioners present several instances where they claim there is an impossibility between federal and state law, these are merely hypothetical or potential conflicts, as neither MRTA nor the challenged regulations pose any requirements on an individual or entity to manufacture, distribute or possess marihuana … . Matter of Cannabis Impact Prevention Coalition, LLC v Hochul, 2026 NY Slip Op 01573, Third Dept 3-19-26

Practice Point: Consult this opinion for a cogent summary of the criteria for federal preemption of a state law.​

 

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HERE THE RESITITUTION FOR THE VICTIM’S OUT-OF-POCKET MEDICAL EXPENSES WAS VACATED BECAUSE THE JUDGE DID NOT MAKE A RECORD SUPPORTING THE AMOUNT AWARDED (THIRD DEPT).

The Third Department, vacating the restitution for the victim’s out-of-pocket medical expenses, determined the judge failed to make a record of those expenses as required by Penal Law section 60.27:

Although the restitution amount did not exceed the agreed-upon limit, the record is devoid of any hearing, colloquy or judicial determination confirming the actual out-of-pocket medical expenses incurred by the victim (see Penal Law § 60.27; CPL 400.30). Absent record evidence that the restitution imposed satisfied the requirements of Penal Law § 60.27, the order of restitution must be vacated and the matter remitted to County Court for reconsideration in accordance therewith … People v Jimenez- Rivera, 2026 NY Slip Op 01421, Third Dept 3-12-26

Practice Point: Penal Law 60.27 requires record evidence of the amount of restitution for out-of-pocket medical expenses.

 

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THE COMMISSIONER OF LABOR COULD NOT IMPOSE A NEW “RULE” WHICH HAD NEVER BEEN SUBJECT TO THE FORMAL RULEMAKING REQUIREMENTS IN THE STATE ADMINISTRATIVE PROCEDURE ACT (THIRD DEPT).

The Third Department, annulling the Department of Labor’s (DOL’s) determination, held that the Commissioner’s ruling was based upon a “rule” which had never been subject to the rule-making procedures required by the State Administrative Procedure Act. The Commissioner turned down the petitioner’s application for an O & P license (a license to own, possess and/or transport fireworks) because petitioner did not hold a PCC (an occupational license for the use of pyrotechnics). Making a PCC a requirement for an O & P license constituted a new “rule” which was invalid because the formal rulemaking procedures were never instituted:

… [T]he PCC requirement does not concern “forms and instructions, interpretive statements and statements of general policy which in themselves have no legal effect but are merely explanatory,” all of which are excluded from formal rulemaking … . Instead, mandating access to a PCC for all O & P license applicants is a “[b]lanket requirement[ ] . . . to be generally applied in the future, regardless of individual circumstances” that is subject to the State Administrative Procedure Act’s rulemaking process … . Respondents’ failure to comply with the State Administrative Procedure Act before implementing the mandatory PCC requirement renders that requirement unenforceable … . Matter of Linear Research Assoc., Inc. v Reardon, 2026 NY Slip Op 01434, Third Dept 3-12-26

Practice Point: Consult this decision for insight into the difference between an administrative “rule” which is subject to the formal rulemaking requirements of the State Administrative Procedure Act and a “statement of general policy” which is not.

 

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A NEW YORK CITY LOCAL LAW WHICH PROHIBITS THE SALE OF FOIE GRAS, A “FATTY LIVER” CREATED BY FORCE FEEDING GEESE AND DUCKS, IS NOT PRE-EMPTED BY THE AGRICULTURE AND MARKETS LAW (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Mackey, determined the NYC Local Law which prohibited the sale of foe gras was not pre-empted by the Agriculture and Markets Law. Foie gras (fatty liver) is produced by force feeding geese or ducks several times a day:

Foie gras, which translates to English as “fatty liver,” is a food product obtained through such forced feeding of a goose or duck, by which the animal is made to consume large quantities of grain and fat using a pipe that is inserted down the esophagus. This process, which is repeated several times per day, seeks to produce a significantly enlarged liver when compared to that of a non-force-fed bird. * * *

… Agriculture and Markets Law § 305-a provides that “[l]ocal governments, when exercising]their powers to enact and administer comprehensive plans and local laws, ordinances, rules or regulations, shall exercise these powers in such manner as may realize the policy and goals set forth in this article, and shall not unreasonably restrict or regulate farm operations within agricultural districts in contravention of the purposes of this article unless it can be shown that the public health or safety is threatened” … . * * *

… Agriculture and Markets Law article 25-AA was expressly enacted to protect agricultural lands from “nonagricultural development extend[ing] into farm areas,” as well as “[o]rdinances inhibiting farming,” which “often lead[ ] to the idling or conversion of potentially productive agricultural land” … . The Legislature thus clearly expressed its intent that Agriculture and Markets Law § 305-a preempt those local laws that result in direct and unreasonable restrictions or regulations upon farming operations and the associated use of land — not the sale of products produced as a result of those operations in retail food and food service establishments, which may be subject to other statutory and regulatory limitations. Matter of City of New York v Ball, 2026 NY Slip Op 01426, Third Dept 3-12-26

Practice Point: Consult this opinion for insight into the Home Rule and pre-emption issues raised by a claim that a NYC Local Law, which prohibits the sale of animal products produced by force-feeding, is pre-empted by the Agriculture and Markets Law which seeks to limit infringement on farming operations. The pre-emption argument was rejected.​

 

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THE NYS GAMING COMMISSION RELIED ON HEARSAY TO FIND THAT PETITIONER, A RACE-HORSE TRAINER, VIOLATED A LIMIT IMPOSED ON THE AMOUNT OF A DRUG WHICH MAY BE ADMINISTERED TO A RACE HORSE; THE HEARSAY LETTERS FROM TWO LABORATORIES WHICH TESTED THE HORSE’S BLOOD CONSTITUTED INSUFFICIENT EVIDENCE OF THE VIOLATION BECAUSE THE LETTERS DID NOT DESCRIBE THE TESTING METHODS AND THE RELIABILTIY OF THOSE TESTING METHODS; MATTER REMITTED (THIRD DEPT).

The Third Department, annulling the NYS Gaming Commission’s ruling and remanding the matter for a new hearing, determined the Commission relied on hearsay to find that petitioner (a race-horse trainer) violated a rule limiting the amount of a drug (bute) which can be administered to a race horse. The petitioner brought an Article 78 proceeding arguing that the ruling was improperly based upon hearsay. The Article 78 proceeding was transferred to the Third Department:

Petitioner … contends that respondent failed to introduce competent evidence establishing the reliability of the testing that was conducted on the postrace samples that purportedly demonstrated the presence and concentration of bute. … [P]etitioner challenges the admission and reliance on a letter … providing the result of testing from the postrace sample. The objection lodged by petitioner’s counsel to the letter was that it could not be properly admitted through … the medical director for respondent … as he had not reviewed the testing data and was not involved in the testing process. … [S]n objecting to the letter received by respondent {from a second laboratory], counsel raised the same objection … . * * *

… [I]t is of particular note that the sole proof relied upon by respondent to establish that the bute concentration from postrace samples exceeded the permissible limit were the letters from the New York and California laboratories. The letter from the New York laboratory indicated the overage in bute concentration but did not provide for the method of testing, and although the method of testing was provided in the letter from the California laboratory, neither letter gave any indication as to the reliability or general acceptance of the tests utilized to ascertain the presence and concentration of bute in the postrace samples … . … [R]elying solely on the hearsay proof in this case to establish the rule violation rendered the hearing fundamentally unfair under the circumstances presented and persuades us to remand the matter for a new hearing … . Matter of Pletcher v New York State Gaming Commission, 2026 NY Slip Op 01435. Third Dept 3-12-26

Practice Point: Although an administrative agency may base a ruling on hearsay, here hearsay letters from laboratories describing the results of testing for a drug in a race horse’s blood did not rise to the level of “substantial evidence” because the testing methods and the reliability of those methods were not described.

 

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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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