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TWO PEOPLE WERE SHOT IN A DRIVE-BY SHOOTING; DEFENDANT, IN THE PLEA ALLOCUTIONS, DID NOT ADMIT TO FIRING SEPARATELY AT EACH VICTIM; THEREFORE THE PEOPLE DID NOT MEET THEIR BURDEN TO SHOW THE COMMISSION OF TWO DISTINCT CRIMES; CONSECUTIVE SENTENCES COULD NOT BE IMPOSED (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Rivera, over a two-judge dissent, determined the prosecutor did not demonstrate that the two victims of this drive-by shooting were struck by different bullets fired separately at each, causing separate injuries to each. Therefore the judge could not impose consecutive sentences. The court noted that this issue need be preserved for appeal:​

… [T]he prosecutor should have been aware at the time of the plea, based on our unambiguous caselaw, that they had the burden of ensuring defendant allocuted to sufficient facts to establish that he separately shot at the two victims or that the victims were injured by separate bullets, in order for consecutive sentencing to be legally authorized. But because the prosecutor failed to satisfy their burden and place on the record the alleged “separate and distinct” acts underlying the two crimes … , the trial court had no legal authority to impose consecutive sentences in this case. People v Sabb, 2026 NY Slip Op 01590, CtApp 3-19-26

Practice Point: Here the defendant was never asked during the plea allocutions whether he fired two shots separately injuring the two victims. Therefore the People did not meet their burden to prove the commission of two separate crimes and consecutive sentences could not be imposed.

 

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THE CIRCUMSTANCES SURROUNDING THE IDENTIFICATION OF DEFENDANT FROM A CELL PHONE PICTURE TAKEN BY A POLICE OFFICER AT THE POLICE STATION WERE UNDULY SUGGESTIVE; THERE WAS NO PROBABLE CAUSE FOR DEFENDANT’S ARREST AND THE EVIDENCE SEIZED SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT). ​

The First Department, reversing Supreme Court’s finding that there was probable cause to arrest the defendant and suppressing the seized evidence, determined that the circumstances surrounding the identification of the defendant by a robbery victim (the mother) from a cell-phone picture of defendant taken by a police officer were unduly suggestive:

Because, while being escorted to where the officers were holding defendant on a different floor, the mother expressed fear that defendant would “come after” her after he was released from prison, it was decided that instead of requiring her to confront defendant in person, the mother would be shown a picture of defendant that one of the officers took with a cell phone. She was not required to approach defendant after exiting the elevator; however, given the narrow and angular path of the hallway, the agitated defendant was clearly audible to her, and many of the several officers surrounding defendant, at least one of whom was visible in the photo, were immediately apparent to her. She was shown the photo and asked “Is that him?” to which she responded that it “looked like” him, but that he had changed his clothes. Defendant was not arrested at that time, but was arrested approximately 15 minutes later, after the mother was shown the photo several more times and asked whether it depicted the perpetrator. * * *

While the choice to proceed with identification via a showup, even a single-photo showup, is generally disfavored, it may be reasonable in view of its temporal and spatial proximity to the crime … . Nevertheless, showup identification evidence “must be scrutinized very carefully for unacceptable suggestiveness and unreliability” … . “When a defendant challenges the suggestiveness of an out-of-court viewing of defendant’s likeness, the central issue presented for judicial consideration is whether the pretrial display is conducted under circumstances bearing the earmarks of improper influence and unreliability, which create the risk of mistaken identification and thus infect the truth-seeking process . . . showing one photograph of a defendant — the procedure at issue in defendant’s case — carries the risk of undue suggestiveness” … . The procedure employed here carried that risk, and because the substances underlying defendant’s conviction were received as a direct result of it, they should have been suppressed. People v Perry, 2026 NY Slip Op 01617, First Dept 3-19-26

Practice Point: The robbery victim, while in the police station and within earshot of the agitated defendant, was shown a cell phone picture of the defendant taken by an officer at the police station. She said the picture “looked like” the defendant but he had changed his clothes. The identification procedure was deemed unduly suggestive.

 

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THE ACT OF SIMPLE POSSESSSION OF A WEAPON WAS COMPLETE BEFORE THE WEAPON WAS USED TO SHOOT THE VICTIM DURING A ROBBERY; THEREFORE, DESPITE THE OVERLAP OF THE ELEMENTS OF SIMPLE POSSESSION OF A WEAPON AND THE ELEMENTS OF FELONY MURDER AND ROBBERY, CONSECUTIVE SENTENCES WERE PROPERLY IMPOSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, affirming the Appellate Division, determined the sentence for simple possession of a weapon was properly imposed to run consecutively to the concurrent sentences for felony murder and robbery:

Penal Law § 70.25 (2) governs consecutive sentencing, providing that “[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences . . . must run concurrently.” Otherwise, the decision to impose consecutive sentences is a matter of discretion; the statute provides that “when multiple sentences of imprisonment are imposed on a person at the same time . . . the sentence or sentences imposed by the court shall run either concurrently or consecutively . . . in such manner as the court directs at the time of sentence” … .

To determine whether consecutive sentences are permitted, a sentencing court must first examine the statutory elements of the crimes and determine whether those elements overlap “under either prong” of Penal Law § 70.25 (2) and, if they do, “the People may yet establish the legality of consecutive sentencing by showing that the ‘acts or omissions’ committed by defendant were separate and distinct acts” … . That is, where sufficient evidence of separate and distinct acts is presented by the People, “consecutive sentences are possible regardless of whether the statutory elements of the offenses overlap” … .

… [T]he convictions at issue here have overlapping material elements. * * * Whatever the overlap, however, we conclude that the People met their burden of establishing that the defendant’s acts here were separate and distinct and therefore the consecutive sentences imposed were legal.

The People demonstrated that defendant’s possession of the gun in violation of Penal Law § 265.03 (3) was an act distinct from the commission of the robbery. Defendant obtained the gun, at minimum, more than one hour before the robbery, carried it across approximately 15 city blocks, and placed it under a bed in a co-conspirator’s home for “a little while” before eventually retrieving the gun and walking over to the intended victim’s building. Evidence that defendant obtained the gun and then used it to commit the substantive crime provided a sufficient basis for the sentencing judge to impose consecutive sentences. … ” ‘[t]he evidence clearly established that defendant was carrying the weapon at the time he encountered and shot the victim,’ ” and therefore ” ‘the act of possession was complete before the shooting, and consecutive sentences were authorized by’ ” the statute … . People v Billups, 2026 NY Slip Op 01589, CtApp 3-19-26

Practice Point: Consult this opinion for insight into when a judge may impose consecutive sentences despite an overlap of the elements of the crimes.

 

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THE JURY’S CONCLUSION THAT THE BURGLARY VICTIM SUFFERED “PHYSICAL INJURY” WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE ONLY EVIDENCE WAS THE VICTIM’S TESTIMONY HE SUFFERED PAIN AT 6 ON A SCALE OF 1 TO 10 (SECOND DEPT).

The Second Department, vacating defendant’s burglary convictions, applying a weight-of-the-evidence analysis, determined the proof the victim suffered “physical injury,” an element of the offenses, was insufficient:

The evidence, properly weighed, does not prove beyond a reasonable doubt that the victim sustained a physical injury … . Although the victim testified that he suffered pain as high as 6 on a scale of 1 to 10, he also testified that he was “in a little pain. Wasn’t much pain, but [he] was in pain.” There were no photographs of the victim’s injury and the victim testified that he never requested medical attention. Therefore, under the circumstances of this case, the verdict finding the defendant guilty of burglary in the first degree under Penal Law § 140.30 and burglary in the second degree under Penal Law § 140.25(1)(b), based solely upon the victim’s subjective testimony, was against the weight of the credible evidence … . People v Carroll, 2026 NY Slip Op 01528, Second Dept 3-18-26

Practice Point: A burglary victim’s testimony that he suffered pain at 6 on a scale of 1 to 10 did not support the jury’s finding that the victim suffered “physical injury” under a weight-of-the-evidence analysis by the appellate court.​

 

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THE MEDICAL RECORDS PROVIDED DEFENDANT HOSPITAL WITH TIMELY NOTICE OF THE FACTS UNDERLYING THE MEDICAL MALPRACTICE CAUSE OF ACTION; THEREFORE PLAINTIFF’S APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s application for leave to file a late notice of claim in this medical malpractice action should have been granted. The medical records provided the defendant hospital with sufficient timely notice of the cause of action:

“Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury” … . “Where the alleged malpractice is apparent from an independent review of the medical records, those records constitute ‘actual knowledge of the facts constituting the claim'” … .

Here, in support of his motion, the plaintiff submitted, inter alia, medical records and an affidavit of a physician who reviewed the records and concluded that there had been a departure from accepted medical practice … . Inasmuch as the medical records, upon independent review, suggested injury attributable to medical malpractice, the medical records provided the defendant with actual knowledge of the essential facts constituting the claim … . Kazeem v New York City Health & Hosps. Corp. (Queens Hosp. Center), 2026 NY Slip Op 01497, Second Dept 3-18-26

Practice Point: The medical records themselves can be deemed to have provided a defendant hospital with timely notice of the facts underlying a medical malpractice action such that an application for leave to file a late notice of claim should be granted.

 

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HERE IN THIS TRAFFIC ACCIDENT CASE THE DRIVER OF THE VEHICLE IN WHICH PLAINTIFF WAS A PASSENGER DIED DURING THE PENDENCY OF THE ACTION; PLAINTIFF PASSENGER HAD SUED DECEDENT DRIVER AND THE DEFENDANT TRUCKING COMPANY; THE ATTORNEYS FOR THE DECEDENT DRIVER DID NOT HAVE THE AUTHORITY TO MOVE TO DISMISS THE COMPLAINT AGAINST THE DECEDENT DRIVER; THE DEFENDANT TRUCKING COMPANY DID NOT GIVE THE INTERESTED PARTIES THE REQUIRED NOTICE OF ITS MOTION TO DISMISS BASED UPON THE DRIVER’S DEATH; AND PLAINTIFF PASSENGER DID NOT COMPLY WITH THE PROCEDURES FOR THE APPOINTMENT OF THE PUBLIC ADMINISTRATOR TO REPRESENT THE DECEDENT DRIVER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined (1) the attorneys for the decedent driver did not have the authority to move to dismiss plaintiff-passenger’s action against the decedent because the decedent’s death during the pendency of the action divested the court of jurisdiction, (2) the defendant’s motion to dismiss based upon the driver’s death should not have been granted because defendant did not notify the parties with an interest in decedent’s estate of the motion, and (3) plaintiff-passenger’s cross-motion to appoint the Public Administrator to represent the driver’s estate should not have been granted because plaintiff did not notify parties interested in the estate of the cross-motion and did not otherwise follow the procedures for such an appointment:

“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a). Moreover, any determination rendered without such substitution will generally be deemed a nullity” … . The death of a party terminates his or her attorney’s authority to act on behalf of the deceased party … . * * *

“CPLR 1021 defines the procedural mechanisms for seeking a substitution of successor or representative parties, and for the dismissal of actions where substitutions are not timely sought” … . CPLR 1021 provides, in pertinent part, that “[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made.” Further, “a motion to dismiss pursuant to CPLR 1021 requires that notice be provided to persons interested in the decedent’s estate” … . * * *

… [T]he plaintiff failed to sufficiently demonstrate that she provided notice of her cross-motions to persons interested in [the] estate … . Moreover, the plaintiff “failed to demonstrate the steps [she] had taken to secure the appointment of a personal representative in the appropriate Surrogate’s Court or that resort to the appropriate Surrogate’s Court was otherwise unfeasible . . . and otherwise failed to adequately demonstrate why the appointment of a temporary administrator was needed to avoid undue delay and prejudice” … . Ford v Luckain, 2026 NY Slip Op 01493, Second Dept 3-18-26

Practice Point: Consult this decision for insight into the procedures which must be followed when a party in a pending traffic-accident case dies, divesting the court of jurisdiction and curtailing the authority of the decedent’s attorneys to act on decedent’s behalf.

 

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PLAINTIFF WAS A CO-PILOT OF A HELICOPTER USED TO PROVIDE AN AERIAL PLATFORM FOR WORK ON POWER LINES; THE HELICOPTER STRUCK A POWER LINE AND PLAINTIFF JUMPED FROM THE HELICOPTER FROM A HEIGHT OF 75 FEET; THE LABOR LAW 240(1) AND 241(6) STRICT LIABILITY CAUSES OF ACTION WERE PREEMPTED BY THE FEDERAL AVIATION ACT (FAA); THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED; RATHER THE FEDERAL STANDARD OF CARE SHOULD BE APPLIED TO THOSE CAUSES OF ACTION (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Ford, determined the Labor Law 240(1) and 241(6) six causes of action were preempted by the Federal Aviation Act (FAA) but the negligence and Labor Law 200 causes of action should not have been dismissed because the federal standard of care can be applied to them. Plaintiff was the co-pilot of a helicopter which was being used to provide an aerial platform for work on power lines. The helicopter struck a power line and plaintiff jumped out of the helicopter from a height of 75 feet:

Under the federal rules, “[t]he pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft” (14 CFR 91.3[a] …). Various federal courts have held that the pilot thereby has the “sole responsibility to determine whether it is safe or unsafe to undertake the proposed flight” … . * * *

Additionally, under the federal rules, “[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another” (14 CFR 91.13[a]). This rule is “[c]entral” to the FAA’s overarching standard of care …. Common-law negligence cases require a more stringent standard of care, “that of a reasonable person under the same or similar circumstances” … . Labor Law § 200 codifies the common-law negligence standard … , while Labor Law §§ 240(1) and 241(6) “subject contractors and owners to absolute strict liability” … . The standards of care underlying the four sources of liability alleged by the plaintiff—i.e., liability for common-law negligence and under Labor Law §§ 200, 240(1), and 241(6)—thereby conflict with, and are preempted by, the federal recklessness standard. …

Where applicable, the effect of preemption of a state standard of care is not to preclude recovery or “to deprive Plaintiffs of their state remedies, but rather, to substitute a federal standard of care for New York’s reasonably-prudent-person standard” … . Fabia v Power Auth. of the State of N.Y., 2026 NY Slip Op 01489, Second Dept 3-18-26

Practice Point: Here, although the Federal Aviation Act (FAA) preempted the strict liability Labor Law 240(1) and 241(6) causes of action in this helicopter-accident case, the negligence and Labor Law 200 causes of action should not have been dismissed because the federal standard of care can be applied to them.

Practice Point: Consult this opinion for an in-depth analysis of the issues raised by preemption of state Labor Law and negligence claims stemming from a helicopter accident by the Federal Aviation Act (FAA).

 

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THE ATTORNEY REPRESENTED PLAINTIFF DRIVER AND PLAINTIFF PASSENGERS IN THIS REAR-END COLLISION CASE; THE COUNTERCLAIM FOR INDEMNIFICATION AGAINST PLAINTIFF DRIVER CREATED A “PECUNIARY” CONFLICT OF INTEREST BETWEEN PLAINTIFF DRIVER AND PLAINTIFF PASSENGERS; THE ATTORNEY WAS DISQUALIFIED FROM REPRESENTING ALL THE PLAINTIFFS (FIRST DEPT).

The Second Department, reversing Supreme Court, determined the attorney, Gambone, should have been disqualified from representing the plaintiff driver and the plaintiff-passengers in this rear-end collision case. The defendant asserted a counterclaim for indemnification against plaintiff driver, which created a “pecuniary” conflict of interest between the driver and the passengers. It is not clear from the decision why Gambone was precluded from representing the passengers and well as the driver:

… [T]he defendants demonstrated that Gambone’s representation of both the plaintiff driver and the passengers created a conflict of interest … . Although the passengers contend that there was no conflict of interest because the plaintiff driver, whose vehicle allegedly was struck in the rear while he was stopped at a red traffic signal, was not at fault in the happening of the accident, the pecuniary interests of the plaintiff driver conflicted with those of the passengers once the defendants asserted the counterclaim against the plaintiff driver … . Moreover, under the circumstances of this case, the defendants sufficiently demonstrated that Gambone should be disqualified from continuing to represent any plaintiffs in this action … . Diaz v Gomez, 2026 NY Slip Op 01487, First Dept 3-18-26

Practice Point: Even though this was a rear-end collision case and it is not clear that plaintiff driver was negligent, the defendant’s counterclaim against plaintiff driver for indemnification created a “pecuniary” conflict of interest between plaintiff driver and plaintiff passengers. Therefore the attorney was disqualified from representing both plaintiff driver and plaintiff passengers. For reasons which are not provided in the decision, the attorney was disqualified from representing all of the plaintiffs.​

 

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DEFENDANT FAILED TO DEMONSTRATE PLAINTIFF RECEIVED AND REVIEWED THE “TERMS AND CONDITIONS” ADDENDUM TO THE CONTRACT WHICH INCLUDED THE ARBITRATION CLAUSE; DEFENDANT’S EFFORT TO COMPEL ARBITRATION DENIED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, determined the defendant energy company did not demonstrate plaintiff agreed to an arbitration clause which defendant claimed was included in a four-page “Terms and Conditions” addendum to the contract. Essentially plaintiffs argued they were never provided with the four-page “Terms and Conditions.” Defendant relied on weak and contradictory evidence to the contrary, some of which was provided for the first time in a reply document (generally not considered by a motion court):

As a procedural matter, defendant could not employ its reply to remedy a basic deficiency in its prima facie showing … . After all, defendant’s theory of actual notice rested on its sales representative’s adherence to a business practice and defendant was unable to establish, in its underlying submission, the actual relevant practice (if any) that [the sales representative] used.

As a substantive matter, the inconsistent factual presentation between defendant’s underlying submission and its reply submission leaves a void on the critical question of what documents were reviewed with [plaintiff], undermining defendant’s contention that a particular business practice was employed and followed such that [plaintiff] received actual notice of the arbitration provision. Knight v Family Energy Inc., 2026 NY Slip Op 01599, First Dept 3-17-26

 

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A STIPULATION TOLLING THE STATUTE OF LIMITATIONS IS ENFORCEABLE, DESPITE THE RETROACTIVE APPLICATION OF THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Michael, reversing Supreme Court, determined that, although the foreclosure action would have been untimely pursuant to the Foreclosure Abuse Protection Act (FAPA) because the plaintiff’s voluntary discontinuance no longer can stop the running of the statute of limitations, here the parties had entered a stipulation tolling the statute of limitations. Supreme Court erred by finding the stipulation unenforceable:

Plaintiff’s prior mortgage foreclosure action against defendant was commenced on July 25, 2008, which indisputably accelerated the entire loan. On May 4, 2011, the parties agreed to discontinue the foreclosure action without prejudice via written stipulation. They also agreed that “the statute of limitations for any claims of plaintiff or defendant against the other is hereby tolled from July 22, 2008 . . . until June 1, 2013.” The stipulation was executed by the parties’ respective counsel and filed with the court. Plaintiff subsequently commenced this foreclosure action on February 16, 2018 and moved for summary judgment. Defendant cross-moved to dismiss the complaint, arguing that plaintiff’s action was time-barred under FAPA. * * *

Simply put, despite FAPA’s retroactive application, the parties’ 2011 stipulation in which they expressly agreed to toll the limitations period to June 1, 2013 effectively tolled the limitations period to that date. Plaintiff’s commencement of this action on February 16, 2018, less than six years later, was thus timely. HSBC Bank USA, N.A. v Nicholas, 2026 NY Slip Op 01461, First Dept 3-27-26

Practice Point: A valid stipulation tolling the statute of limitations will be enforced even where, pursuant to FAPA, the revived foreclosure action would otherwise have been untimely.

 

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