You are here: / RESPONDENT MATERNAL UNCLE IN THIS CUSTODY PROCEEDING DID NOT EFFECTIVELY...

Search Results

/ ,

RESPONDENT MATERNAL UNCLE IN THIS CUSTODY PROCEEDING DID NOT EFFECTIVELY WAIVE HIS RIGHT TO COUNSEL; ORDER REVERSED (SECOND DEPT).

The Second Department, reversing Family Court in this custody action, determined respondent uncle did not waive his right to counsel:

Here, the maternal uncle had a statutory right to the assistance of counsel because he was a respondent in a child custody proceeding … . Although the record demonstrates that, at an appearance on the petition, the Family Court advised the maternal uncle of his right to retain counsel and his right to request an adjournment, it incorrectly informed him that “non parents in custody cases . . . are not entitled to assigned counsel.” The record also shows that while the maternal uncle indicated his desire to retain counsel and to adjourn the matter, he did not speak when the court and the father’s counsel discussed awarding the father temporary custody of the subject child with no visitation for the maternal uncle, and he exhibited confusion with respect to the purpose of the proceeding … . Under all of these circumstances, it cannot be said that the maternal uncle had a “sufficient awareness of the relevant circumstances and probable consequences” of proceeding without counsel … .

Furthermore, on the adjourned date, the Family Court erred in determining the merits of the father’s petition without first conducting a hearing … . Matter of Huasco v Chimborazo, 2024 NY Slip Op 00767, Second Dept 2-14-24

Practice Point: A respondent in a custody proceeding has a right to counsel. Here respondent did not explicitly waive his right to counsel and the order was reversed.

 

/ ,

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE WAS PREMATURE AND SHOULD HAVE BEEN DENIED; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case was premature and should have been denied:

A motion for summary judgment may be denied as premature where it appears that the facts essential to oppose the motion exist but cannot then be stated (see CPLR 3212[f] …). “A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant” … .

Here, the plaintiff demonstrated that further discovery, including records of the United States Postal Service, a deposition of the plaintiff’s former coworker, and discovery related to hearsay statements that the alleged defect had been reported to the defendants, may result in the disclosure of evidence relevant to the issue of whether the defendants had notice of the alleged defective condition … . Knowles v 21-43 27th St., LLC, 2024 NY Slip Op 00759, Second Dept 2-14-24

Practice Point: Here the defendants’ motion for summary judgment was deemed premature; criteria explained.

 

/ , ,

THE REPEAL OF THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) WAS NOT RETROACTIVE; THEREFORE DEFENDANT’S NURSING HOME WAS IMMUNE FROM SUIT STEMMING FROM PLAINTIFF’S DECEDENT’S DEATH FROM COVID-19 (FIRST DEPT).

The First Department determined the repeal of the Emergency or Disaster Treatment Protection Act (EDTPA) in April 2021 was not retroactive. Therefore defendant’s nursing home was immune from suit stemming from plaintiff’s decedent’s death from COVID-19. Although the Act does not confer immunity from gross negligence, gross negligence was not demonstrated because the Department of Health required nursing homes to admit COVID-positive patients:

As to the application of the EDTPA, defendant was entitled to immunity under that statute. The documents submitted with defendant’s motion to dismiss, including several pandemic-related policies, State Department of Health directives, and more than 1600 of pages of the decedent’s medical records, demonstrate that defendant was providing health care services to the decedent under the COVID-19 emergency orders when he was infected and, before that, “in accordance with applicable law”; the care provided was “impacted by” defendant’s “decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state’s directives”; and the decedent was provided care “in good faith” … . Hasan v Terrace Acquisitions II, LLC, 2024 NY Slip Op 00739, First Dept 2-13-24

Practice Point: This decision includes an extensive discussion of when a statute can be deemed to apply retroactively.

 

/ , ,

THE SEARCH OF A CAR AFTER DEFENDANT HAS BEEN REMOVED FROM THE CAR CANNOT BE CONSIDERED A SEARCH INCIDENT TO ARREST; SUPPRESSION GRANTED AND INDICTMENT DISMISSED (FIRST DEPT).

The First Department, reversing defendant’s conviction and dismissing the indictment, determined the search of defendant’s car was not a valid search incident to arrest because defendant and the driver had already been removed from the car. The People elected not to rely on the appeal waiver because of the erroneous suppression ruling:

The court improperly denied defendant’s motion to suppress the PCP recovered from the vehicle. As the People concede, the search of the vehicle could not be justified as a search incident to arrest because, at the time of the search, defendant and the driver had already been removed from the car and were in handcuffs. Anything inside of the car was no longer in defendant’s grabbable area or immediate control, and the People failed to demonstrate the existence of exigent circumstances to justify the search … . People v Ortiz, 2024 NY Slip Op 00745, First Dept 2-13-24

Practice Point: Once a defendant has been removed from a car, a search of the car cannot be a search incident to arrest because the interior of the car is no longer in defendant’s grabbable area or immediate control.

 

/ ,

THE CONSOLIDATED TRIAL OF TWO SEPARATE CRIMINAL TRANSACTIONS, COUPLED WITH THE ABSENCE OF LIMITING JURY INSTRUCTIONS, CONSTITUTED REVERSIBLE ERROR (FIRST DEPT). ​

The First Department, in a full-fledged comprehensive opinion by Justice Rodriguez, over a two-justice comprehensive concurring opinion, determined that the consolidated trial of two separate criminal transactions, without appropriate limiting jury instructions, was reversible error:

The first indictment charged defendant with, among other counts, attempted murder. In relation to the first indictment, no gun was recovered, the alleged victim was not injured, and the evidence showed that there was at least some degree of animus between defendant and the alleged victim. The defense theory was thus that the discharged gun was in fact the victim’s. The second indictment, concerning an incident nearly six months later at a different location, charged defendant with possession of a firearm that was recovered on the person of his companion. The principal evidence supporting the second indictment was a set of suggestive jail phone call recordings.

Consolidated trial of indictments like the two at issue here is not necessarily error. However, defendant suffered impermissible prejudice as a result of (1) the nature and quantum of the evidence presented and (2) the specific respective theories of the prosecution and the defense. Supreme Court thus abused its discretion and committed error in trying the indictments together.

Although prejudice may in general be adequately ameliorated by appropriate limiting instructions, the jury received no such instruction here. People v Davis, 2024 NY Slip Op 00746, First Dept 2-13-24

Practice Point: This comprehensive majority opinion and and the comprehensive concurring opinion cannot be fairly summarized here. Consult this opinion for the law associated with consolidation of indictments for trial.

 

/

THE SIDEWALK ON WHICH PLAINTIFF WAS RIDING HIS MOTORIZED BICYCLE WHEN HE FELL WAS NOT DESIGNED OR SUITABLE FOR RECREATIONAL USE; THEREFORE THE PROPERTY OWNER, SYRACUSE UNIVERSITY, COULD NOT RELY ON THE RECREATIONAL-USE STATUTE (GENERAL OBLIGATIONS LAW 9-103) TO ESCAPE LIABILITY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the recreational use statute (General Obligations Law 9-103(1)(a)) did not apply to the sidewalk on which plaintiff was riding his motorized bicycle when he fell. Therefore defendant was not entitled escape liability based upon the statute. The sidewalk was along a busy road on the Syracuse University campus and therefore was not designed or suitable for recreational use:

General Obligations Law § 9-103 (1) (a) provides that “an owner, lessee or occupant of premises . . . owes no duty to keep the premises safe for entry or use by others for . . . bicycle riding . . . or to give warning of any hazardous condition . . . on such premises to persons entering for such purposes.” The statute was enacted to “induce property owners, who might otherwise be reluctant to do so for fear of liability, to permit persons to come on their property to pursue specified activities” … . The rationale for the statute is that “outdoor recreation is good; New Yorkers need suitable places to engage in outdoor recreation; [and] more places will be made available if property owners do not have to worry about liability when recreationists come onto their land” … . The statute applies when two conditions are met: (1) the plaintiff is engaged in one of the activities identified in section 9-103 and (2) the plaintiff is recreating on land suitable for that activity … .

… In evaluating the suitability of a property for a particular activity, courts look to whether the premises is the “type of property which is not only physically conducive to the particular activity or sport but is also a type which would be appropriate for public use in pursuing the activity as recreation” … . … [W]e conclude that plaintiff sufficiently alleged that the sidewalk at issue was not appropriate for public use in pursuing the recreational activity of bike riding. Plaintiff alleged that the sidewalk area where [plaintiff] fell was not designated by defendant for bike riding and was situated along a busy campus roadway near the front entrance of an academic building containing classrooms and offices. Such a property is not appropriate for public use in pursuing bicycle riding as a recreational activity … . Inasmuch as the recreational use statute does not apply here, the court erred in granting the motion [to dismiss]. Delaney v Syracuse Univ., 2024 NY Slip Op 00731, Fourth Dept 2-9-24

Practice Point: General Obligations Law 9-103 allows property owners to open up their property for recreational use, including bicycling, without fear of liability for injury to those using the property for recreational purposes, Here the sidewalk on which plaintiff was riding when he fell was nether designed nor appropriate for recreational use. Therefore the property owner could not take advantage of the recreational-use statute to escape liability.

 

/ , ,

IN A MED MAL ACTION PLAINTIFF’S EXPERT NEED NOT HAVE PRACTICED IN THE SAME SPECIALTY AS DEFENDANT DOCTOR TO BE QUALIFIED TO OFFER EXPERT OPINION EVIDENCE (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined plaintiff’s expert laid an adequate foundation for their qualifications in orthopedic medicine. The court noted that plaintiff’s expert need not have practiced in the same specialty as the defendant:

“[A] plaintiff’s expert need not have practiced in the same specialty as the defendant[]” … , and “any alleged lack of knowledge in a particular area of expertise goes to the weight and not the admissibility of the testimony” … . Here, plaintiffs’ expert is board certified as a medical examiner, an orthopedic surgeon and an arthroscopic laser surgeon. The expert completed a residency in general and orthopedic surgery. The expert is now a clinical instructor of orthopedic surgery and a clinical assistant professor of orthopedic surgery. The expert is affiliated with four hospitals and previously served as the chair of the department of orthopedic surgery at one hospital. Thus, we conclude that plaintiffs’ expert “had the requisite skill, training, education, knowledge or experience from which it can be assumed that [the expert’s] opinion[ ] . . . [is] reliable” … . McMahon-DeCarlo v Wickline, 2024 NY Slip Op 00730, Fourth Dept 2-9-24

Practice Point: Although plaintiff’s expert had not practiced in the same specialty as defendant doctor in this med mal action, plaintiff’s expert was qualified to offer reliable expert opinion evidence.

 

/ ,

THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DID NOT JUSTIFY THE OFFICER’S ENTRY OF THE RESIDENCE AND SEIZURE OF A SWITCHBLADE; SWITCHBLADE AND STATEMENTS RELATING TO THE SWITCHBLADE SUPPRESSED; IN ADDITION, AN INCLUSORY CONCURRENT COUNT WAS DISMISSED (FOURTH DEPT).

The Fourth Department determined (1) the search of defendant’s premises and the seizure of switchblade was not justified by the emergency exception to the warrant requirement and (2) the criminal possession of a weapon conviction must be dismissed as an inclusory concurrent count of criminal possession of a weapon third:

The court reasoned that the officer’s entry into defendant’s residence was justified under the emergency exception to the warrant requirement, which permits a warrantless search where ” ‘(1) the police . . . have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property and this belief [is] grounded in empirical facts; (2) the search [is] not . . . primarily motivated by an intent to arrest and seize evidence; and (3) there [is] some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched’ ” … . … [T]he first and third elements of the emergency exception were not present at the time the officer entered defendant’s residence because defendant had been secured prior to that time and the officer who conducted the search testified that he did not believe there was anyone else in the residence at that time … .

We therefore modify the judgment by granting that part of defendant’s omnibus motion seeking to suppress the switchblade knife and defendant’s statements relating to the switchblade knife, reversing that part of the judgment convicting defendant of CPW in the third degree as it relates to the switchblade knife, and dismissing count 4 of the indictment … . People v Lee, 2024 NY Slip Op 00718, Fourth Dept 2-9-24

Practice Point: At the time the officer entered defendant’s residence and seized a switchblade all parties had been secured and removed from the residence. The emergency exception to the warrant requirement did not apply.

 

/ ,

THE ACTION FOR DAMAGES FOR MEDICAL SERVICES WAS NOT APPROPRIATE FOR A CLERK’S JUDGMENT FOR A SUM CERTAIN; DEFENDANT RAISED A QUESTION OF FACT WHETHER HE WAS PROPERLY SERVED WITH THE SUMMONS WITH NOTICE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) the action for damages for medical services was not appropriate for a clerk’s judgment for a sum certain pursuant to CPLR 3215(a) and (2) defendant raised a question of fact about whether he was served with the summons with notice pursuant to CPLR 308(4):

… [T]he Clerk lacked authority under CPLR 3215 (a) to enter the default judgment. “CPLR 3215 (a) allows a party to seek a default judgment by application to the clerk if the claim is ‘for a sum certain or for a sum which can by computation be made certain’ ” … . “The limitation of clerk’s judgments to claims for a sum certain contemplates a situation in which, once liability has been established, there can be no dispute as to the amount due” … . “The statute is intended to apply to only the most liquidated and undisputable of claims, such as actions on money judgments and negotiable instruments” … . Under the circumstances of this case, we conclude that this action, which seeks to recover damages for medical services, is not for a sum certain or for a sum that by computation can be made certain … . * * *

Defendant submitted an affidavit in which he averred, inter alia, that he lived in the upstairs apartment of a two-story, two-family house, and that, because his apartment was not specified on the papers described in the process server’s affidavit of service, he never received service … . State of New York v Walker, 2024 NY Slip Op 00716, Fourth Dept 2-9-24

Practice Point: An action for a clerk’s judgment for a sum certain is only appropriate where there is absolutely no dispute about the amount due, not here in a case seeking damages for medical services.

 

/

THE BED OF A VAN IS NOT AN ELEVATED WORK SURFACE FOR PURPOSES OF LABOR LAW 240(1) (FOURTH DEPT).

The Fourth Department noted the the bed of a van is not considered an elevated work surface for purposes of Labor Law 240(1):

Plaintiff and defendant’s principal moved the loaner jack to the edge of the van bed in preparation for lifting the device onto a four-wheeled cart. Plaintiff was injured when he and defendant’s principal lifted the loaner jack to place it onto the cart. * * *

The bed of a truck or similar vehicle does not constitute an elevated work surface for purposes of Labor Law § 240 (1) … , and the protections of Labor Law § 240 (1) do not apply where a plaintiff is injured while unloading equipment from the bed of a vehicle … . Inasmuch as there is no dispute that plaintiff’s injury occurred as he helped lift the loaner jack from the bed of defendant’s vehicle, the court properly determined that Labor Law § 240 (1) does not apply. Triest v Nixon Equip. Servs., Inc., 2024 NY Slip Op 00714, Fourth Dept 2-9-24

Practice Point: Here the Fourth Department held that the bed of a van was not an elevated work surface for purposes of Labor Law 240(1).

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy