When a motorist is facing a DWI license revocation hearing, and subpoenas the arresting officers to the hearing, but they fail to appear, the motorist must still seek to enforce the subpoenas in Supreme Court under CPLR 2308(b) before the DMV must exclude the officers’ hearsay reports or dismiss the revocation proceedings under due process. …
Court of Appeals Holds That The Foreclosure Abuse Prevention Act Applies Retroactively and Does Not Violate Due Process (NYSBA CasePrepPlus)
Does the Foreclosure Abuse Prevention Act apply retroactively to foreclosure actions that were commenced before its effective date to bar lenders from questioning a prior acceleration of the mortgage loan? And if so, does that violate the lenders’ procedural or substantive due process rights under the New York Constitution? The Court of Appeals recently took …
Court of Appeals Explains That The US Supreme Court’s Invalidation of New York’s “Proper Cause” Requirement in the Gun Licensing Regime Does Not Render The Entire Scheme Unconstitutional (NYSBA CasePrepPlus)
Does the United States Supreme Court’s invalidation of New York’s “proper cause” requirement for obtaining a firearm license in New York State Rifle & Pistol Assn., Inc. v Bruen render the entire firearm licensing regime unconstitutional? The Court of Appeals tackled that question recently in a criminal defandant’s challenge to his guilty plea to unlicensed possession …
Municipalities Lack Capacity to Maintain Facial Constitutional Challenges to State Statutes (NYSBA CasePrepPlus)
Municipalities are political subdivisions of the State. They are created and can be destroyed by the Legislature’s will, and exist to carry out their legislatively delegated authority. The courts, however, cannot intrude in “legislative disputes raised by legislative subordinates,” the Court of Appeals held recently. Thus, the Court explained, municipalities may not maintain facial constitutional …
Failure to File a Non-Military Affidavit Does Not Provide a Basis to Vacate a Default Judgment If the Defendant Was Not Actually an Active Servicemember (NYSBA CasePrepPlus)
When a party in New York seeks to enter a default judgment against a non-appearing defendant, they must file with the court an affidavit attesting that, after investigation, the defaulting defendant is not an active military servicemember. When a default judgment is entered in the absence of the required non-military affidavit, however, the Second Department …
Court of Appeals Explains When Custodial Interrogation Requires Miranda Warnings (NYSBA CasePrepPlus)
The Court of Appeals recently addressed when a defendant is subjected to a custodial interrogation requiring the use of Miranda warnings before any incriminating statements obtained may be used against him at trial. And the Third Department addressed an open question of New York law concerning whether the salary of a sole shareholder in a …
New York City Schools’ Admission Criteria and Curriculum Do Not Violate New York’s Constitutional Requirement That Students Receive a Sound Basic Education (NYSBA CasePrepPlus)
The Court of Appeals recently held that plaintiffs’ allegations that the New York City school system’s use of admissions and screening policies, curriculum content, and lack of teacher diversity, were insufficient to state a claim under the New York Constitution’s requirement that students receive a sound basic education. Let’s take a look at that opinion …
A Parent Cannot Recover for Prenatal Medical Malpractice Based on a Lack of Informed Consent When the Child is Born Alive (NYSBA CasePrepPlus)
May a parent plaintiff recover purely emotional damages for prenatal medical malpractice based on a lack of informed consent, where the child is born alive? No, the Court of Appeals recently held, clarifying that its precedent bars such recovery, unless the plaintiff falls within one of New York’s three limited exceptions to the bar on …
The Even Year Election Law Is Constitutional (NYSBA CasePrepPlus)
The Court of Appeals is back with its first opinions of the 2025-26 session. And it didn’t waste any time addressing a big election issue. The Even Year Election Law, which provides that elections for most county, town, and village officials will be held on even-numbered years, and will no longer be held on odd-numbered …
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A Corporate Board of Directors Cannot Be Sued Separately From the Corporation It Serves (NYSBA CasePrepPlus)
Can a Board of Directors be sued separately from the corporation that it serves? The First Department clarified recently that it cannot. The Board acts on behalf of the corporation, but the Business Corporation Law does not recognize it as an entity subject to or capable of suit on its own. Let’s take a look …
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