IN RE: NEW YORK STATE POLICE (2026)

OPINION AND ORDER

Appeal from an order of the Supreme Court (Peter Lynch, J.), entered February 4, 2025 in Albany County, which granted petitioner's application, in a proceeding pursuant to CPLR article 63–A, for an extreme risk protection order against respondent.

Respondent, a Connecticut resident and long-time employee of the New York State Department of Motor Vehicles (hereinafter DMV), became the subject of an agency probe into his travel reports for his GPS-tracked fleet vehicle.  On January 13 and 14, 2025, DMV conducted videoconference meetings with respondent and agency staff concerning his vehicle use and his employee grievance.  Respondent participated in each videoconference from his Connecticut home.  During the January 14 meeting, a rifle and a pistol were prominently displayed behind respondent;  they were not visible during the first videoconference meeting.  On January 15, respondent telephoned a DMV employee to discuss his grievance and alluded to animosity with his supervisor, who he previously accused of discrimination, and stated that it was “not going to go well” and that it was unwise for respondent to continue to work under him.  DMV reported respondent's statements and his display of firearms to petitioner, which then commenced this proceeding, first seeking a temporary extreme risk protection order (hereinafter TERPO) and then a final extreme risk protection order (hereinafter ERPO).  In its TERPO application, petitioner did not cite any of the grounds enumerated in CPLR 6342(2), instead alleging that respondent's intentional display of firearms during the grievance hearing constituted an “indirect threat of implied workplace violence.”  Supreme Court (A.McGinty, J.) denied the TERPO application, finding that petitioner had not shown probable cause to believe that respondent was likely to engage in conduct that would result in serious harm to himself or others;  the court scheduled a final ERPO hearing pursuant to CPLR 6342(5).  Respondent moved to dismiss the petition, arguing, among other things, that Supreme Court lacked personal jurisdiction, that venue did not properly lie in Albany County and that service was improper.  Supreme Court (P. Lynch, J.) denied the motion to dismiss and, following a hearing, granted the petition and issued a final ERPO that expired on January 31, 2026.  Respondent appeals, and we reverse.¹

As limited by his brief, we first address respondent's arguments related to jurisdiction, venue and service, beginning with his claim that Supreme Court lacked personal jurisdiction over him because he resides in Connecticut and was not subject to suit in New York. Pursuant to CPLR 302(a)(1), “a court may exercise personal jurisdiction over any non-domiciliary ․ who in person ․ transacts any business within the state or contracts anywhere to supply goods or services in the state.”  Personal jurisdiction under the settled “twofold inquiry” exists when a defendant purposefully avails himself or herself “of the privilege of conducting activities within the forum state by either transacting business in New York or contracting to supply services in New York,” and the claim arose “from that business transaction or from the contract to supply services” (Gottlieb v. Merrigan, 170 AD3d 1316, 1317 [3d Dept 2019] [internal quotation marks, brackets, ellipses and citations omitted], lv denied 33 NY3d 908 [2019] ).  “The defendant's activities are purposeful if the defendant avails itself of the privilege of conducting activities within New York and invokes the benefits and protections of its laws” (id. [citations omitted] ).  Due process requires that the nondomiciliary have sufficient minimum contacts with New York so that it is reasonable for the defendant to anticipate being haled into court here, and that the exercise of jurisdiction comports with traditional notions of fair play and substantial justice (see Williams v. Beemiller, Inc., 33 NY3d 523, 528–529 [2019];  Archer–Vail v. LHV Precast Inc., 168 AD3d 1257, 1261 [3d Dept 2019] ).

Here, respondent worked for an agency situated in New York for more than 10 years, regularly reported to work in the City of Yonkers, Westchester County, and earned wages and fringe benefits by performing services that included inspecting shops in New York. When his employer questioned his use of the vehicle it provided, respondent invoked the protection of New York law, grieved his employer's action and threatened suit in New York courts.  The ERPO petition arose from his conduct during an administrative proceeding that he initiated, aware that agency representatives would attend from New York, and he then communicated with officials in the City of Albany.  Under these circumstances, respondent's conduct satisfied long-arm jurisdiction criteria.  Likewise, respondent's substantial nexus to New York through his work and employee grievance militate against discretionary dismissal of this proceeding under CPLR 327(a), particularly where respondent made no effort before Supreme Court to explain the applicability of foreign law or to address competing factors under a forum non conveniens analysis (see Claude v. Autobus Fleur de Lys, Inc., 166 AD3d 1120, 1121 [3d Dept 2018], lv dismissed 33 NY3d 1038 [2019];  SmartPros, Ltd. v. Straub, 24 AD3d 653, 654–655 [2d Dept 2005] ).  Supreme Court therefore properly denied respondent's motion to dismiss for lack of personal jurisdiction.

Next, respondent argues that, as a Connecticut resident, Supreme Court lacked authority to hear this ERPO proceeding because the venue provision in CPLR 6341 directs that an ERPO application “shall be filed in the supreme court in the county in which the respondent resides.”  He contends that this provision prevents him from being summoned to any county in New York to answer an ERPO petition and that petitioner was required to file a proceeding in Connecticut.  We disagree.  We have previously held that this venue language does not expressly limit Supreme Court's jurisdiction over an out-of-state resident in an ERPO proceeding (see Matter of Hogencamp v. Matthew KK., 243 AD3d 984, 985 n 2 [3d Dept 2025] ).  Instead, it defines where an ERPO proceeding should be filed against a New York resident, when, for instance, the respondent lives outside the county where the relevant events occurred.  We conclude that CPLR 6341 refers to the respondent's residence only in prescribing the county in which an ERPO application “shall be filed” against a New York resident to discourage forum shopping among New York counties rather than to exclude out-of-state respondents from the reach of the statute (see Osterweil v. Bartlett, 21 NY3d 580, 582–583 [2013] ).  The Court of Appeals relied on similar reasoning in Osterweil when it held that an analogous venue provision requiring that pistol permit applications be filed in the city or county where the applicant “resides” or works did not preclude nondomiciliaries from filing an application and obtaining a permit here (id. at 584–587 [internal quotation marks and citation omitted] ).  Nothing in CPLR article 63–A states that only New York residents are subject to the statutory scheme for preventing gun violence when the respondent's conduct reaches New York. Supreme Court therefore properly denied respondent's motion to dismiss on this ground.

Respondent next contends that the ERPO petition should have been dismissed because venue was improper in Albany County.  Because Supreme Court exercises statewide jurisdiction, a defect in venue ordinarily calls for transfer to another county, not dismissal (see Knight v. New York & Presbyt.  Hosp., 42 NY3d 699, 703–704 [2024];  Matter of Balbuenas v New York City Health & Hosps.  Corp., 209 AD3d 642, 643–644 [2d Dept 2022];  see also Pike Co., Inc. v. County of Albany, 75 AD3d 983, 985 [3d Dept 2010] ).  Respondent suggested to Supreme Court that another county closer to his home would have been more convenient and appropriate;  viewing this as a motion to change venue pursuant to CPLR 511, his application did not comport with the requisite procedures to obtain a change of venue as a matter of right or discretion (see Matter of Aaron v. Steele Law Firm, P.C., 127 AD3d 1385, 1387 [3d Dept 2015] ).  To the extent this issue is preserved, we find that Supreme Court did not abuse its discretion when it denied the motion to change venue where Albany County constitutes DMV's principal office and the situs from which its representatives joined the videoconferences or communicated with respondent.

Respondent's challenge to service of the ERPO petition and supporting papers, to the extent preserved, is likewise unavailing.  Petitioner commenced this proceeding in its representative capacity as a law enforcement agency, and the investigator who served the petition acted on petitioner's behalf rather than in his personal capacity (see Matter of Kimberly DD., 220 AD3d 1091, 1092–1093 [3d Dept 2023], lv denied 41 NY3d 903 [2024] ).  The statute expressly authorizes law enforcement agencies to both initiate and serve ERPO petitions, while also permitting service of papers through authorized third parties (see CPLR 6342[6][a], [b] ), seemingly exempting service of ERPO papers from CPLR 2103(a).  Even assuming that service by a party ran afoul of CPLR 2103(a), such an error “is a mere irregularity which does not vitiate service” (Matter of Schodack Concerned Citizens v Town Bd. of Town of Schodack, 148 A.D.2d 130, 133 [3d Dept 1989], lv denied 75 N.Y.2d 701 [1989];  see CPLR 2001;  Matter of Conti v. Clyne, 120 AD3d 884, 886 [3d Dept 2014], lv denied 23 NY3d 908 [2014] ).  Additionally, respondent's counsel agreed to accept service via email and promptly acknowledged receipt without objection, and respondent then appeared and participated, thereby waiving any objection to the manner of service (see Matter of Kimberly DD., 220 AD3d at 1092–1093).

Turning to the merits of the ERPO determination, petitioner was required to establish by clear and convincing evidence that respondent was likely to engage in conduct that would result in serious harm to himself or others (see CPLR 6343[2];  Matter of New York State Police v Galliher, 248 AD3d 1680, 1681–1682 [4th Dept 2026];  Matter of Orangetown Police Dept. v Cashell, 238 AD3d 1152, 1154 [2d Dept 2025];  Matter of R.M. v. C.M., 226 AD3d 153, 159–160 [2d Dept 2024] ).  As relevant here, a likelihood of serious harm means a substantial risk of physical harm to others manifested by homicidal or other violent behavior that places others in reasonable fear of serious physical harm (see CPLR 6342[2][a];  Mental Hygiene Law § 9.39[a][2];  Matter of New York State Police v Galliher, 248 AD3d at 1681–1682;  Matter of Orangetown Police Dept. v Cashell, 238 AD3d at 1154).  When determining an ERPO petition, “the court must consider the nonexhaustive factors set forth in CPLR 6342(2) ․ including, among other things, any threat or act of violence or use of physical force directed toward self, the petitioner, or another person” (Matter of Orangetown Police Dept. v Cashell, 238 AD3d at 1154 [internal quotation marks and citation omitted] ).  The statute “does not require either an explicit threat or expert testimony to predict a respondent's future conduct” (Matter of New York State Police v Galliher, 248 AD3d at 1683), such that an implied threat may suffice under some circumstances.  “Clear and convincing evidence is evidence that satisfies the factfinder that it is highly probable that what is claimed actually happened” (Matter of Preller v. Collesano, 250 AD3d 949, 950 [2d Dept 2026] [internal quotation marks and citation omitted];  see People v. Dominie, 42 AD3d 589, 590 [3d Dept 2007] ).  This standard “forbids relief whenever the evidence is loose, equivocal or contradictory” (Matter of K.Y.Z. [W.Z.], 44 NY3d 657, 677 [2025] [internal quotation marks and citation omitted] ).

At the hearing, the DMV labor relations representative who conducted the first videoconference meeting testified that respondent appeared intense and aggravated and repeatedly expressed animosity toward his supervisor.  The agency director who conducted the second meeting the next day described how respondent sat to the side of the video frame while a rifle, mounted on a stand, and a handgun were prominently displayed on a table behind him.  A screenshot of the participants and the firearms display was received in evidence.  According to the director, the placement of the firearms “felt very intentional.”  He nevertheless completed the hearing without commenting on the firearms, explaining that he wanted to address respondent's grievance without creating any unnecessary distraction.  The following day, respondent called the labor relations representative, asserted that his supervisor had engaged in unlawful discrimination and suggested that he should be supervised by someone else during the investigation.  The investigator's report annexed to the petition reflected that respondent had acknowledged animosity in his “chain of command” and stated that “be[ing] under something that condescending is not going to go well.  It's not a good idea to work under someone in that matter [sic] and you're going to see later that it's not a good idea.” ²  The labor relations representative told the investigator that respondent may have been referring to his stated plan to sue DMV for defamation or discrimination.

Respondent testified at the hearing that he told the labor relations representative that he should be reassigned while the investigation was pending because he believed his supervisor filed a complaint against him.  He testified that he had little interaction with his supervisor and he would not recognize him if he were present in the courtroom.  He knew the firearms were visible to participants during his grievance hearing but claimed that they were “[p]art of the decor of the room” and that he intended to clean and sell them.  He implausibly denied knowing how many guns he owned.  When confronted with a copy of his December 8, 2024 social media post depicting a bullet-riddled target captioned “feeling crazy,” he explained that he intended only to inform his social media contacts that he had been to the target range for practice.  The police investigator who interviewed respondent testified that respondent expressed frustration – but no threats – toward his supervisor.  Supreme Court found respondent lacked candor and determined that his display of firearms constituted a threat to others.

The foregoing reflects that petitioner's proof of respondent's alleged threat was equivocal or contradictory, such that petitioner failed to satisfy the requisite burden of proof.  Petitioner's documentary evidence and the testimony adduced at the hearing suggest that respondent's statement about things “not going to go well” connoted future litigation.³  Specifically, petitioner submitted an investigator's report summarizing the labor representative's observations and her candid contemporaneous concession that respondent's worrisome statement could be construed as a threat to sue;  at the hearing, she struggled to recall whether or how she characterized this statement to police as a threat of violence.  The investigator's report noted that respondent's lawfully owned firearms were never brandished, mentioned or “otherwise used in any threatening manner” but instead were purportedly placed to intimidate the videoconference participants.  The report further summarized the investigator's communications with the Connecticut police who conducted a welfare check at petitioner's request and reported that respondent explained his statement as a reference to litigation and that they declined to initiate that state's red flag law after their interaction with him.  To be sure, Supreme Court acted well within its discretion in finding that respondent testified untruthfully about his knowing display of firearms and that petitioner's witnesses were more credible.  Nonetheless, based upon the equivocal characterizations of respondent's implied threat contained within petitioner's own documentary proof and the testimony adduced at the hearing, we are constrained to conclude that petitioner did not establish by clear and convincing evidence that respondent was likely to engage in conduct that would result in serious harm to others.

ORDERED that the order is reversed, on the law, without costs, order vacated, and petition dismissed.

FOOTNOTES

1.   Petitioner concedes that the appeal is not moot notwithstanding the expiration of the ERPO, and therefore did not seek dismissal of the appeal (see Matter of Preller v. Collesano, 250 AD3d 949, 950 [2d Dept 2026];  see also CPLR 6346[1] ).

2.   We note that a court is free to “consider the petition” and accompanying evidence in assessing whether petitioner has satisfied its burden of proof in an ERPO proceeding (CPLR 6343[2] ).

3.   Initially, respondent failed to raise before Supreme Court his contentions that (1) his perceived threat constituted non-actionable speech, and (2) his social media post was obtained in violation of his federal and state constitutional privacy rights.  These contentions are therefore unpreserved for our review (see Radiation Oncology Servs.  Of Cent. N.Y., P.C. v Our Lady of Lourdes Mem. Hosp., Inc., 148 AD3d 1418, 1420 [3d Dept 2017] ).

Corcoran, J.

Clark, J.P., Pritzker, Ceresia and Mackey, JJ., concur.