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THE SEARCH WAS NOT A VALID INVENTORY SEARCH; THE HANDGUN FOUND IN DEFENDANT’S VEHICLE SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, reversing County Court’s denial of defendant’s suppression motion, determined the search of defendant’s vehicle was not a valid inventory search and the handgun should have been suppressed:

“To be constitutionally valid, an inventory search must be [reasonable and] conducted according to a familiar routine procedure” … . The established procedure should be designed to “meet the legitimate objectives of the search,” such as protecting the owner’s property and insuring police against claims of lost or stolen property, “while limiting the discretion of the officer in the field”. Here, the second deputy failed to adhere to the requirements set forth in the relevant inventory policy. Namely, he did not obtain the approval of his shift supervisor before beginning the alleged inventory procedure. Further, although not explicitly written in the policy, the second deputy also admitted that he deviated from normal procedure when he failed to complete the inventory report as he conducted the inventory.  People v Grandoit, 2025 NY Slip Op 05720, Third Dept 10-16-25

Practice Point: Consult this decision for insight into how the legitimacy of an inventory search is determined by a reviewing court.​

 

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CONFLICTING EVIDENCE OF THE CAUSES OF CLAIMANT’S HEARING LOSS DID NOT SUPPORT THE MEDICAL EXPERTS’ CONCLUSIONS THAT THE LOSS WAS ATTRIBUTABLE TO THE OPERATION OF HEAVY MACHINERY (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the conflicting evidence of the causes of claimant’s hearing loss did not support the experts’ conclusions that the hearing loss was “likely” caused by exposure to noise from the operation of heavy equipment:

… [T]he medical opinion evidence on the issue of causation need not be expressed with certainty or in absolute terms … , and we acknowledge that the Board is vested with the exclusive authority to weigh conflicting medical opinions and to evaluate the medical evidence before it … . That said, the medical opinions upon which the Board bases its finding of a causal relationship nonetheless must be supported by a rational basis … . Here, each of the foregoing physicians indeed expressed that it was “likely or “very obvious” that claimant’s hearing loss was attributable to work-related noise exposure. However, given the other documented sources of noise exposure … , the conflicting medical histories provided by claimant and, most notably, the testimony of the carrier’s consultant, who made clear that the results of claimant’s audiograms were decidedly inconsistent with noise-related hearing loss, we are unable to conclude that these generalized statements of causation are otherwise supported by a rational basis in the record as a whole. Under these circumstances, the Board’s finding that claimant sustained a work-related binaural hearing loss is not supported by substantial evidence … . Matter of Spada v Keeler Constr. Co., 2025 NY Slip Op 05553, Third Dept 10-9-25

Practice Point: In the context of a hearing loss alleged to have been caused by prolonged exposure to noise from heavy machinery, the medical experts’ conclusions must be supported by evidence in the record. Here the experts’ conclusions that the hearing loss was attributable to the operation of heavy machinery were weakened by conflicting causation-evidence in the record and the finding of causation was reversed.

 

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BASED UPON AN INTERPRETATION OF THE CLASS-ACTION SETTLEMENT AGREEMENT WHICH DID NOT SPECIFICALLY ADDRESS THE ISSUE, SUPREME COURT PROPERLY RULED THAT UNCLAIMED SETTLEMENT FUNDS CAN BE REDISTRIBUTED TO THE OTHER CLASS MEMBERS, REJECTING DEFENDANTS’ ARGUMENT THAT ANY UNCLAIMED FUNDS SHOULD BE RETURNED TO THEM (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Fisher, determined Supreme Court properly ruled that unclaimed checks payable to class members as part of a class action settlement can be redistributed to the other class members. The ruling was based upon an interpretation of the settlement agreement which did not specifically address the “unclaimed checks” issue. Defendants argued the unclaimed funds should be returned to them. The opinion is too fact-specific and detailed to fairly summarize here. O’Brien v Sagbolt LLC, 2025 NY Slip Op 05280, Third Dept 10-2-25

 

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AS PART OF A PLEA BARGAIN, THE JUDGE PROMISED TO ORDER DEFENDANT TO BE ENROLLED IN THE COMPREHENSIVE ALCOHOL AND SUBSTANCE ABUSE TREATMENT (CASAT) PROGRAM; BECAUSE DEFENDANT WAS NOT ELIGIBLE FOR THE PROGRAM, HIS MOTION TO VACATE HIS GUILTY PLEA SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing County Court, determined defendant’s motion to vacate his guilty plea should have been granted. The judge’s promise to order defendant to be enrolled in the CASAT (comprehensive alcohol and substance abuse treatment) program was central to defendant’s plea bargain. The program was not available to the defendant because he was not convicted of a drug-related offense:

… County Court promised to order him to be enrolled in CASAT, a promise that could not be fulfilled because CASAT is only available to individuals convicted of drug-related offenses (see Penal Law § 60.04 [6]). We agree. “A guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” … . Defendant was not enrolled in CASAT as he was not statutorily eligible for participation (see Penal Law § 60.04 [6] …), so the promise cannot be honored. Moreover, the record reflects that the mandate for CASAT enrollment was “part and parcel of defendant’s plea agreement” … . Thus, defendant is entitled to vacatur of his guilty plea … . People v Robinson, 2025 NY Slip Op 05125, Third Dept 9-25-25

Practice Point: Here defendant was promised, as part of a plea bargain, enrollment in the CASAT program. It turned out he was not eligible for the program. Because the program was “part and parcel of defendant’s plea agreement,” defendant was entitled to vacatur of his guilty plea.

 

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CLAIMANT, A PER DIEM SUBSTITUTE TEACHER, WAS GIVEN REASONABLE ASSURANCE OF CONTINUED EMPLOYMENT AND THEREFORE WAS NOT ENTITLED TO UNEMPLOYMENT BENEFITS BETWEEN THE ACADEMIC TERMS (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined the finding that claimant, a per diem substitute teacher, was entitled to unemployment benefits between school years because she was not given reasonable assurance of continued employment was not supported by the record:

… [The] “record gave no reason to believe that the employer’s assurances [of continued employment] . . . were illusory” … . Accordingly, the Board’s finding that the employer failed to provide claimant with a reasonable assurance of continued employment is not supported by substantial evidence and its decision must be reversed … . Matter of Caruso (Shenendehowa Cent. Sch. Dist.–Commissioner of Labor), 2025 NY Slip Op 05132, Third Dept 9-25-25

 

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THE WORKERS’ COMPENSATION BOARD DID NOT MAKE SUFFICIENT FINDINGS UNDER THE “ABC” TEST FOR DETERMINING WHETHER CLAIMANT WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR, MATTER REMITTED (THIRD DEPT). ​

The Third Department, reversing the Workers’ Compensation Board and remitting the matter, determined the Board did not properly apply the so-called “ABC” test to decide whether claimant was an employee or an independent contractor:

… [O]ur review of the Board’s decision reflects that it did not set forth sufficient findings of fact regarding its assessment of whether the three-part ABC test was satisfied in order to determine if claimant himself was an independent contractor. To that end, to establish a person as an independent contractor under the three-part ABC test, it must be demonstrated that “(a) the individual is free from control and direction in performing the job, both under his or her contract and in fact; (b) the service must be performed outside the usual course of business for which the service is performed; and (c) the individual is customarily engaged in an independently established trade, occupation, profession, or business that is similar to the service at issue” (Labor Law § 861-c [1]). * * *

In our view, given the limited findings by the Board, it is unclear whether the Board considered the ABC factors in determining that claimant’s status as an employee was not rebutted. As such, and aware that the role of this Court is not to independently review and weigh the conflicting evidence to determine whether the various factors of the ABC test … — including who directed and controlled the work being performed in installing the trusses — were met, the Board’s decision is not supported by substantial evidence and the matter must be remitted to the Board for proper consideration of whether the ABC test was satisfied in order to rebut the presumption of an employer-employee relationship. Matter of Trickey v Black Riv. Plumbing, Heating & A.C., Inc., 2025 NY Slip Op 05133, Third Dept 9-25-25

Practice Point: Consult this decision for an explanation of the “ABC” test for whether a claimant is an employee or independent contractor.

 

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THE “EXTRAORDINARY CIRCUMSTANCES” WHICH WOULD JUSTIFY RETAINING THE 17-YEAR-OLD’S BURGLARY PROSECUTION IN COUNTY COURT WERE NOT DEMONSTRATED; THE CASE SHOULD HAVE BEEN TRANSFERRED TO FAMILY COURT; THE CRITERIA FOR RETENTION IN COUNTY COURT ARE EXPLAINED IN DEPTH (THIRD DEPT).

The Third Department, reversing County Court, in a full-fledged opinion by Justice Powers, determined the People did not demonstrate “extraordinary circumstances’ justifying retaining the 17-year-old defendant’s burglary case in County Court. The matter should have been transferred to Family Court:

… [W]e agree with the Second Department’s conclusion that the Legislature intended for adolescent offenders to be prosecuted in criminal court “only in the most exceptional cases” … . * * *

As alleged in the criminal complaint, defendant and the brother stood accused of entering the dwelling of the relative and stealing unsecured firearms, which they then sold. Markedly, the relative was not home at the time and they did not forcibly enter the home. Rather, defendant’s brother — who was a willing and able participant — utilized the garage door code he had been entrusted with and they entered the home together, without causing damage to or destruction of property. Defendant also did not go on to use the firearms in the commission of some other crime nor were the firearms used by another in the commission of a crime. Instead, the firearms were sold, and then located by law enforcement not long after the sales.

These facts do not present one of the “extremely rare and exceptional cases” as was contemplated by the Legislature in enacting this legislation. In view of the foregoing, the People failed to demonstrate extraordinary circumstances existed as required to retain the matter in County Court (Youth Part) under CPL 722.23 (1) (d) … . People v Aaron VV., 2025 NY Slip Op 05018, Third Dept 9-18-25

Practice Point: Consult this decision for an in-depth discussion of the criteria for retaining a 17-year-old’s prosecution in County Court, as opposed to transferring the case to Family Court.

 

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THE PETITION SEEKING REVIEW OF THE BOARD OF ELECTIONS’ DECISION TO PURCHASE NEW VOTING MACHINES WHICH OPERATE BY SCANNING A BAR CODE SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND PETITIONER, COMMON CAUSE NEW YORK, DID NOT DEMONSTRATE AN INJURY-IN-FACT; COMMON CAUSE ARGUED THE USE OF A BAR CODE WHICH IS SCANNED BY THE MACHINE WILL IMPEDE VERIFICATION OF THE VOTING BALLOTS; THERE WAS A TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined the petitioner, Common Cause New York, had standing to contest the State Board of Elections’ (the Board’s) approval of the use of a new voting machine on the ground the machine’s mechanism for counting votes (using a bar code) impeded the right to independently verify the voting ballots. The majority held the petitioner met the “injury-in-fact” requirement. The dissenters disagreed. Although the writ of mandamus to compel was not the proper mechanism because a discretionary, as opposed to a ministerial, act was at issue, the petition was converted to a writ of mandamus to review:

The Board … posits that petitioners cannot establish the existence of an injury that differs from the public at large. We do not believe that the facts of this case warrant “an overly restrictive analysis of [that] requirement” … . Indeed, that requirement is tempered by the principle “that standing is not to be denied simply because many people suffer the same injury,” as doing so would insulate the “most injurious and widespread Government actions” from scrutiny … . Within that context, petitioners have alleged a particularized harm flowing from the approval of the ExpressVote XL [voting machine] and, although it likely affects numerous high-propensity voters … , it is sufficiently “different in kind or degree from that of the public at large” to permit standing … . * * *

We may consider the modern view of a petitioner’s pleading requirements in a CPLR article 78 proceeding, which merely require that the petitioner ” ‘set forth his [or her] facts and his [or her] prayer for relief and such relief as is proper may be given to him [or her]’ ” … . Accordingly, “notwithstanding the nomenclature of [petitioners’] application,” … we find that their request can be readily construed as one for mandamus to review, which asks “whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” … . Matter of Common Cause N.Y. v Kosinski, 2025 NY Slip Op 04690, Third Dept 8-14-25

Practice Point: Here the petition brought in the form of a writ of mandamus to compel was deemed improper because the underlying act, the purchase of voting machines, is discretionary, not ministerial. But the court had the authority to consider the petition as a writ of mandamus to review, which was the appropriate mechanism.

 

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OVERRULING PRECEDENT, THE THIRD DEPARTMENT NOW ACCEPTS THE “CATALYST THEORY” WHICH, UNDER THE NYS EQUAL ACCESS TO JUSTICE ACT (EAJA), ALLOWS THE RECOVERY OF ATTORNEY’S FEES BY A PARTY WHO INSTIGATES LITIGATION AGAINST THE STATE AND THE STATE VOLUNTARILY GRANTS THE SOUGHT RELIEF WITHOUT FUTHER LITIGATION; THE “CATALYST THEORY” APPLIES ONLY WHERE THE PARTY “PREVAILS IN WHOLE,” NOT WHERE THE PARTY HAS ONLY “SUBSTANTIALLY PREVAILED” (THIRD DEPT).

The Third Department, reversing Supreme Court and overruling precedent, in a full-fledged opinion by Justice Aarons, determined petitioner was not precluded from an award of counsel fees because the agency petitioner sued, the Office of Temporary and Disability Housing (OTDA), voluntarily granted the relief petitioner sought without the need for further litigation. In so doing, the Third Department overruled Matter of Clarke v Annucci, 190 AD3d 1245, Third Dept 2021, which rejected the so-called catalyst theory and precluded recovery under the NYS Equal Access to Justice Act (EAJA) when the sued agency voluntarily grants the sought relief after litigation has been started: The “catalyst theory” is now accepted as valid in the Third Department where, as in this case, the party “prevails in whole,” but not where a party has only “substantially prevailed:”

The text of the state EAJA, the legislative record, our collective judicial experience and common sense all lead us to conclude that the Legislature could have rationally determined that parties who receive complete relief from the State after the commencement of litigation have prevailed “in whole” even if the State folds and gives it to them. * * *

… [W]e hold that a party prevails in whole when the party obtains all of the relief sought in a lawsuit against the State — including when that relief is granted voluntarily by the State after the action is commenced — and is thus a prevailing party under the state EAJA as a matter of law (see CPLR 8602 [f]). To the extent Clarke is to the contrary, it should no longer be followed. * * *

… [A]lthough we no longer read the state EAJA to require every prevailing party to obtain judicially sanctioned relief, we do not otherwise address a party “who prevails . . . in substantial part” (CPLR 8602 [f]). Petitioner’s case does not require us to resolve whether the catalyst theory applies where a party has substantially, but not wholly, prevailed. We continue to impose an additional requirement on a substantially prevailing party to show a win against the State on the merits of one or more “issues” in litigation, and a corresponding win by the State on the merits of one or more “separate issues” (CPLR 8602 [f] …). Therefore, a party claiming to have prevailed in substantial part must still demonstrate that relief was obtained on the merits in an outcome that changes the legal relationship between the party and the State — for example, a judgment on the merits or a settlement agreement. Matter of Markey v Tietz, 2025 NY Slip Op 04689, Third Dept 8-14-25

Practice Point: If a party starts litigation against the state and the state voluntarily grants the sought relief, the party is entitled to attorney’s fees under the NYS Equal Access to Justice Act (EAJA).

 

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THE DENIAL OF AN AREA VARIANCE FOR A GARAGE WHICH WAS BELOW THE MAXIMUM HEIGHT BUT WAS FOUR FEET HIGHER THAN THE RESIDENCE WAS DEEMED “IRRATIONAL” (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined the denial of petitioner’s request for an area variance for a garage which was four feet higher than the residence was irrational:

The relevant question presented by petitioner’s application was whether a four-foot area variance would be out of character with the surrounding neighborhood in an instance, as here, where both structures are under the maximum height limit for an accessory structure and the residence is far below the height limit for a dwelling. … Respondent did not explain why this height differential, in context, would prove detrimental to the neighboring community. * * *

As to “feasible” alternatives, the difficulty here is that the garage had already been constructed before petitioner consolidated the lots and applied for the variance. While this situation may fairly be characterized as self-created, * * * neither respondent nor Supreme Court accounted for the statutory qualifier that a self-created problem, while relevant, “shall not necessarily preclude the granting of the area variance” (Town Law § 267-b [3] [b] [5]). Nor did respondent or Supreme Court address the clear benefit to petitioner of maintaining her garage, as compared to the prospect of having to remove the structure and the attendant financial loss … . Matter of Williams v Town of Lake Luzerne Zoning Bd. of Appeals, 2025 NY Slip Op 04509, Third Dept 7-31-25

 

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