Decided and Entered: April 23, 2026

Index No. 451131/24|Appeal No. 6460|Case No. 2025-02801|

Before: Manzanet-Daniels, J.P., Kennedy, González, Pitt-Burke, Rosado, JJ.

[*1]

Order, Supreme Court, New York County (April A. Newbauer, J.), entered May 2, 2025, which granted petitioner's article 78 petition for a writ of mandamus to compel respondent New York City Department of Correction (DOC) to institute certain procedures for legal visitors to detainees at the Rose M. Singer Enhanced Supervised Housing Unit (RESH), unanimously affirmed, without costs.

Petitioner initially brought this proceeding as a writ of habeas corpus on behalf of Kelvin Williams, who was detained at RESH, on the ground that DOC violated his right to counsel. After Williams was transferred out of RESH, petitioner moved to convert the writ of habeas corpus into an article 78 proceeding for a writ of mandamus; DOC did not submit a response to the motion. The court then granted the conversion motion on default and sought further briefing on the merits of the article 78 claims. In its opposition to the article 78 petition for mandamus, DOC asked the court to reconsider its decision on the article 78 conversion and to vacate the order that granted conversion.

Supreme Court did not abuse its discretion in declining to revisit the issue of the article 78 conversion, as DOC did not establish that it was entitled to vacatur of its default under CPLR 2005. We note that DOC did, in fact, provide a reasonable excuse for its failure to file an opposition to the conversion motion, as petitioner sent an email to DOC and to the court suggesting that the motion was no longer pending and the court failed to clarify the procedural posture of the motion (see Cornwall Warehousing, Inc. v Lerner, 171 AD3d 540, 540-541 [1st Dept 2019]; Marine v Montefiore Health Systems, Inc., 129 AD3d 428, 429 [1st Dept 2015]).

However, DOC did not raise any meritorious defenses to the motion, as required for vacatur of a default (see Cornwall Warehousing, 171 AD3d at 540). Contrary to DOC's assertions otherwise, the failure to serve the motion on the New York City Corporation Counsel did not divest the court of jurisdiction. Once a proceeding is underway and the parties are represented by counsel, pleadings may be properly served upon the opposing party's attorney, and DOC properly served the writ of habeas corpus on counsel by mail (CPLR 2103[b]). Similarly, DOC cannot establish a meritorious defense on the basis that Rikers Island is in Bronx County and that venue is therefore improper in New York County. New York County is the appropriate venue for the writ of habeas corpus, which is how this proceeding was commenced (CPLR 7002[b][5]). Although DOC argued the writ "must be transferred" if converted to an article 78 proceeding, it failed to timely move for a change of venue under CPLR 510, and thus has no meritorious defense on this basis.

[*2]

In addition, despite DOC's assertions that RESH had adjusted its policies and procedures for legal visitors, rendering the matter moot, Supreme Court properly found that the matter was not in fact moot, as the issues raised were likely to repeat, typically evade review, and present significant questions (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]). In any event, the record suggests that RESH was still depriving detainees of the same right to counsel that they were afforded at other Rikers facilities.

Supreme Court properly granted mandamus relief, as petitioner established that DOC failed to perform its mandatory, nondiscretionary duty to protect the Sixth Amendment right to counsel for detainees housed at RESH. Mandamus may "compel acts that officials are duty-bound to perform, regardless of whether they may exercise their discretion in doing so" (Klosterman v Cuomo, 61 NY2d 525, 540 [1984]); see also Matter of Natural Resources Defense Council, Inc. v New York City Dept. of Sanitation, 83 NY2d 215, 221 [1994]). In accordance with that principle, the court's order properly enforces only the minimum standard DOC was required to meet to avoid infringing the constitutionally protected right to counsel.

We also reject DOC's contention that Supreme Court's order deprived DOC of discretion in how it balanced security concerns against its duty to preserve the right to counsel for detainees at RESH. In rendering its decision, the court sought to standardize RESH protocols with the protocols at other Rikers facilities and to address a condition it deemed to burden the right to counsel.

Finally, DOC's objection to facilitating attorney access to the family waiting room during attorney visiting hours because it would require the expenditure of resources does not represent a legitimate penological concern (see Matter of Nat. Resources Defense Council v New York City Dept. of Sanitation, 188 AD2d 415, 415 [1st Dept 1992], affd 83 NY2d 215 [1994] [rejecting "any suggestion that an administrative authority has discretion to suspend compliance with the mandate of a law on the basis of budgetary constraints"]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 23, 2026