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DEFENDANT WAS COOPERATIVE DURING HIS ARREST; HIS SUBSEQUENT RESISTANCE, THEREFORE, DID NOT CONSTITUTE “RESISTING ARREST;” INDICTMENT DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant’s resisting-arrest conviction was against the weight of the evidence and dismissed the indictment. Defendant was cooperative when he was placed under arrest. His subsequent resistance, therefore, did not constitute resisting arrest:

As the People concede, defendant’s conviction of resisting arrest was against the weight of the evidence … . The undisputed evidence established that defendant was cooperative when he was placed under arrest, handcuffed, physically restrained, and surrounded by police officers … . Defendant’s subsequent physical resistance does not constitute resisting arrest, as he could not have intentionally “prevented or attempted to prevent a police officer from effecting an authorized arrest” by doing so (Penal Law § 205.30). People v Nesmith, 2025 NY Slip Op 06555, First Dept 11-25-24

Practice Point: Any resistance by a defendant which occurs after arrest does not constitute the crime of “resisting arrest.”

 

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DURING MARCH AND APRIL 2020 CLAIMANT, WHO WORKED IN RETAIL IN CLOSE CONTACT WITH THE PUBLIC, WAS EXEMPT FROM THE EMERGENCY WORK RESTRICTIONS; CLAIMANT CONTRACTED COVID, SUFFERED A STROKE AND WAS HOSPITALIZED FOR FOUR MONTHS; HIS CLAIM CONSTITUTED A “COMPENSABLE ACCIDENT;” CLAIMANT DEMONSTRATED AN EXTRAORDINARY RISK OF EXPOSURE DUE TO FREQUENT CONTACT WITH THE PUBLIC “IN AN AREA WHERE COVID WAS PREVALENT” (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Singas, determined the Workers’ Compensation Board properly considered the “prevalence of the COVID virus” in the claimant’s workplace and properly awarded benefits. Claimant, who worked in retail, was exempt from the emergency restrictions and had extensive contact with the public during March and April 2022. After contracting COVID, claimant had a stroke and was hospitalized for four months:

… [C]laimant testified that he worked full time in a high-volume store during March and April 2020. According to claimant, his job responsibilities involved almost constant contact with the public, working either on the store floor or as a cashier. Claimant testified that employer did not provide store employees with sneeze guards or protective face masks until mid-April 2020. Although employer had a policy requiring customers to socially distance and wear face masks in the store, claimant explained that management advised employees not to enforce that policy. Many customers did not wear face masks, and claimant recounted specific instances of close contact with customers despite employer’s social-distancing policy. * * *

The Board determined that relevant case law “indicate[d] that if a claimant contracts COVID-19 through close contact with the public, such exposure could be found to be a work-related accident within the meaning of [Workers’ Compensation Law] § 2 (7).” According to the Board, a claimant can demonstrate this by showing COVID-19’s “prevalence” in the workplace … . * * *

… [T]o establish that an illness due to exposure to pathogens or adverse environmental conditions is compensable, a claimant must demonstrate that the illness was caused by “extraordinary” workplace exposure … . Consistent with that requirement, the Board’s “prevalence” framework requires a claimant to show a “significantly elevated” risk of exposure … . As applied to COVID-19, the “prevalence” framework specifically requires a claimant to demonstrate an “extraordinary” level of exposure through evidence of frequent contact with the public or co-workers “in an area where COVID-19 is prevalent.” … [P]ersistent, high-risk exposure to a disease in the workplace culminating in infection can constitute a compensable accident … . Matter of Aungst v Family Dollar, 2025 NY Slip Op 06530, CtApp 11-24-25

Practice Point: Consult this opinion for insight into when exposure to a disease in the workplace, here COVID, can be considered a “compensable accident” under the Workers’ Compensation Law.​

 

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THE WORKERS’ COMPENSATION BOARD PROPERLY DENIED BENEFITS FOR PTSD SUFFERED AS A RESULT OF EXPOSURE TO COVID IN THE WORKPLACE BECAUSE THERE WAS NOTHING UNIQUE ABOUT THE CLAIMANTS’ EXPOSURE AS OPPOSED TO THAT OF THE REST OF THE WORK FORCE; THE WORKERS’ COMPENSATION LAW HAS SINCE BEEN AMENDED TO CHANGE THE ANALYSIS FOR PSYCHOLOGICAL INJURY SUCH THAT WHETHER A CLAIMANT SUFFERED STRESS GREATER THAN WHAT USUALLY OCCURS IN THE NORMAL WORK ENVIRONMENT IS NO LONGER A CONSIDERATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a three-judge dissent, reversing the Appellate Division, determined the workers’ claims for benefits for post-traumatic stress disorder (PTSD) stemming from workplace exposure to COVID were properly denied by the Workers’ Compensation Board. The Board reasoned that the exposure was not the result of an “accident” because everyone in the workplace was similarly exposed. The Court of Appeals noted that the Workers’ Compensation Law has recently been amended to provide that psychological-injury claims can no longer be disallowed on the ground the underlying stress was no greater that what usually occurs in the normal work environment:

… [E]vidence of COVID-19’s prevalence in the workplace does not relieve a claimant of the burden to establish that the injury was accidental which, in cases of emotional stress-induced psychological injury, has involved a demonstration by the claimant of stress greater than the stress experienced by similarly situated workers in the normal work environment. Here, substantial evidence supports the Board’s determination that the stress of workplace exposure experienced by claimants was comparable to the stress experienced by similarly situated workers in the normal work environment during the COVID-19 pandemic … .

Neither our decision today nor the approach of our dissenting colleagues could be expected to have a significant impact on the development of the law. After the Appellate Division decided these appeals, the legislature amended the Workers’ Compensation Law to provide that the Board “may not disallow a claim” for PTSD, acute stress disorder, or major depressive disorder “upon a factual finding that the stress was not greater than that which usually occurs in the normal work environment” (Workers’ Compensation Law § 10 [3] [c]). By amending the statute in this manner, the legislature has determined that claims of psychological injuries should be evaluated under a standard more favorable than even the dissent’s novel standard.…  Claimants do not argue that the newly amended language applies retroactively to the Board decisions, which predate the effective date of the legislation. Matter of McLaurin v New York City Tr. Auth., 2025 NY Slip Op 06529, CtApp 11-24-25

Practice Point: A recent amendment to the Workers’ Compensation Law provides that, where psychological injury is claimed, whether the stress suffered by the claimants is greater than that which usually occurs in the normal work environment is no longer a consideration. Here, in this pre-amendment case, the fact that the claimants’ exposure to COVID was no greater than the exposure suffered by the rest of the workforce was a proper ground for the denial of psychological-injury benefits.​

 

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DEFENDANT’S FACIAL CONSTITUTIONAL CHALLENGE TO THE CONCEALED CARRY STATUTE AS IT EXISTED AT THE TIME OF HIS INDICTMENT (A PROVISION OF THE STATUTE WAS DECLARED UNCONSTITUTIONAL BY THE US SUPREME COURT JUST PRIOR TO DEFENDANT’S INDICTMENT) SURVIVED HIS WAIVER OF APPEAL; ALTHOUGH DEFENDANT NEVER APPLIED FOR A FIREMARM LICENSE, HE HAS STANDING TO CHALLENGE THE STATUTE BASED ON HIS CONVICTION FOR ATTEMPTED POSSESSION OF A WEAPON; THE CHALLENGED PORTION OF THE STATUTE IS SEVERABLE FROM THE OTHER PROVISIONS; DEFENDANT WAS UNABLE TO DEMONSTRATE THE UNCONSTITUTIONAL PROVISION RENDERED THE STATUTE UNCONSTITUTIONAL UNDER ALL CONCEIVABLE CIRCUMSTANCES AND THEREFORE DID NOT DEMONSTRATE FACIAL UNCONSTITUTIONALITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a three-judge concurrence, determined: (1) the defendant’s challenge to the facial constitutionality of the state’s firearm licensing scheme survived his waiver of appeal; (2) the defendant, who was convicted of attempted criminal possession of a weapon, has standing to challenge the state’s firearm licensing scheme as it was codified at the time of his indictment; (3) although one of the requirements for licensure in the relevant statute (Penal Law 400.00(2)(f) was declared unconstitutional by the US Supreme Court just before defendant’s indictment, that requirement is severable and did not render the entire statutory scheme unconstitutional. In 2022 the US Supreme Court, in New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1, found unconstitutional the statute’s “proper cause” language, which required an individual seeking a concealed-carry license for a pistol or revolver to “demonstrate a special need for self-protection distinguishable from that of the general community,” Although since removed, the “proper cause” language remained in the statute at the time of defendant’s indictment:

We hold that a facial constitutional challenge such as the one presented here likewise falls into the narrow class of non-waivable appellate claims. Hornbook law underscores the very high bar for this type of challenge: a litigant must contend that “in any degree and in every conceivable application, the law suffers wholesale constitutional impairment” … . In the rare circumstances where a facial challenge is successful, “the law is invalid in toto—and therefore incapable of any valid application” … , and thus the State will lack authority to prosecute or punish the defendant or anyone else for the conduct at issue. … [A]facial challenge goes squarely to the “fairness in the process itself” … , and transcends an individual defendant’s concerns to implicate “a larger societal interest in its correct resolution” …  . Accordingly, a waiver that precludes appellate review of a facial constitutional challenge to a criminal statute should not be enforced. * * *

Both the People and the Attorney General argue that the defendant lacks standing to challenge the constitutionality of the licensing scheme because he never applied for a firearm license. We disagree. * * *

We find the “proper cause” requirement severable. The text and structure of the licensing scheme evince a clear legislative intent to regulate the lawful purchase, possession, and use of firearms. The licensing scheme is detailed and multi-faceted; the “proper cause” provision was just one aspect of a much broader scheme that includes a variety of distinct requirements. People v Johnson, 2025 NY Slip Op 06528, Ct App 11-24-25

Practice Point: Consult this decision for insight into when a challenge to the constitutionality of a statute will survive a waiver of appeal, when a defendant has standing to challenge the constitutionality of a criminal statute, when a portion of a challenged statute will be deemed severable from the other provisions, and whether an unconstitutional statutory provision renders the entire statute unconstitutional in every conceivable circumstance (a requirement for facial unconstitutionality).

 

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AN INSURER CANNOT DENY PAYMENT OF AN AUTOMOBILE-ACCIDENT NO-FAULT CLAIM ON THE GROUND THE LICENSED HEALTHCARE PROVIDER COMMITTED PROFESSIONAL MISCONDUCT (HERE AN ALLEGED KICKBACK SCHEME) UNLESS THE PROVIDER HAS ABDICATED CONTROL TO AN UNLICENSED PARTY (CT APP).

The Court of Appeals, in full-fledged opinion by Judge Rivera, over an extensive dissenting opinion by Judge Wilson, determined the NYS Department of Financial Services’ (DFS’s) interpretation of a regulation addressing the payment of no-fault benefits for automobile-accident injuries was rational. The issue was whether alleged professional misconduct by a licensed healthcare provider allowed the insurer to deny payment. The DFS ruled that the insurer could not deny payment of a no-fault claim based upon alleged misconduct by the licensed provider which did not amount to the provider’s abdicating control to an unlicensed party:

The United States Court of Appeals for the Second Circuit has certified the question of whether a regulation promulgated by the Department of Financial Services (“DFS”) permits an insurer to deny a healthcare provider’s no-fault benefits claim because the provider allegedly committed professional misconduct by paying for patient referrals. DFS interprets its regulation to allow an insurer to deny a no-fault benefits claim only when a provider fails to fulfill a foundational licensing requirement necessary to perform healthcare services in any instance, and not when an insurer unilaterally determines that a properly-licensed provider has committed professional misconduct, short of effectively abdicating control to an unlicensed party. This interpretation is rational, because it is consistent with the regulation’s plain text, the no-fault statutory framework, and the legislative purposes of providing swift compensation to victims of motor vehicle accidents and reducing litigation costs. Therefore, as to those cases where the alleged professional misconduct does not constitute surrender of control to an unlicensed party, we answer the certified question in the negative. * * *

DFS asserts that it has long interpreted 11 NYCRR 65-3.16 (a) (12) as only encompassing pre-licensing requirements, and not standards to maintain licensure. DFS explains that State regulators have sole discretion to determine whether a provider has committed professional misconduct and, if they have, whether there should be licensing consequences that affect their ability to collect no-fault reimbursements. Only after a State regulator has determined that a provider committed professional misconduct, and it has suspended, annulled, or revoked their license, may an insurer deny the provider reimbursement of a no-fault benefits claim under 11 NYCRR 65-3.16 (a) (12). Additionally, DFS states that its interpretation of 11 NYCRR 65-3.16 (a) (12) does not preclude plaintiffs from arguing in this action that [the alleged} kickback scheme [at issue here] was so extensive as to essentially cede improper control of … to unlicensed individuals, in violation of licensing requirements. Plaintiffs argue that 11 NYCRR 65-3.16 (a) (12) allows an insurer to deny reimbursement based on its unilateral determination that a provider allegedly committed professional misconduct.

DFS’s interpretation of 11 NYCRR 65-3.16 (a) (12) is rational. … [I]nterpreting the regulation to exclude professional misconduct fully comports with the regulatory text. Government Employees Ins. Co. v Mayzenberg, 2025 NY Slip Op 06527, CtApp 11-24-25

Practice Point: Consult this opinion for insight into how a court will determine whether an agency has properly interpreted a regulation.

 

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BECAUSE THERE IS SUPPORT IN THE RECORD FOR THE LOWER COURTS’ FINDING THAT THE PROPERTY PURCHASED BY A CHURCH WAS NOT BEING USED AS A RETREAT IN VIOLATION OF THE ZONING LAWS AND THEREFORE IS TAX EXEMPT, THE COURT OF APPEALS IS CONSTRAINED TO AFFIRM; THERE WAS A THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a three-judge dissent, determined Supreme Court and the Appellate Division properly ruled that the property in Sullivan County purchased by a church in Queens was not being used in violation of the zoning laws and was tax-exempt. The factual question was whether the property was being used as a retreat for church members, which would violate the zoning laws, or whether the property was being used to grow vegetables, which would not violate the zoning law. The majority held it was constrained to affirm because there was support in the record for the factual findings made by Supreme Court:

These proceedings under the Real Property Tax Law present a factual dispute about how a church based in Flushing, Queens, actually used a property it purchased in the Town of Callicoon. Because the lower courts committed no legal error, and because we may not reweigh facts or redetermine issues of credibility, we affirm. * * *

Our role is not to substitute our judgment for that of the hearing court but rather to determine whether there is record support for the decision it reached. Here, the trial record supports Supreme Court’s finding, affirmed by the Appellate Division, that although petitioner may have purchased the property with the intention of using it as a “retreat,”[FN4] its actual use of the property was to clear approximately one acre of the parcel and, on that cleared area, grow vegetables for charitable distribution to low-income Queens residents. The only other trial evidence about actual use of the property was that the Town Supervisor, who lived across the street from the subject property, regularly harvested hay from the property and never saw any overnight use of the property for “retreat” purposes. Matter of First United Methodist Church in Flushing v Assessor, Town of Callicoon, 2025 NY Slip Op 06526. CtApp 11-24-25

Practice Point: The Court of Appeals is constrained to accept the lower courts’ factual findings if there is support for them in the record.

 

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DEFENDANTS’ MOTION TO AMEND THEIR COUNTERCLAIM FOR DEFAMATION, DEFAMATION PER SE AND DEFAMATION BY IMPLICATION SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants’ cross-motion to amend the counterclaim for defamation should been granted. The allegations of defamation, defamation per se and defamation by implication were deemed sufficient. The decision is fact specific and cannot be fairly summarized here. The plaintiff and defendants, licensed investment advisors, entered an employment arrangement which broke down. Plaintiff sued for breach of a restrictive covenant. Defendants asserted a counterclaim for defamation based upon emails sent by plaintiff to their business clients:

Defendants sufficiently alleged that the statements made by the individual parties were false and that they were reasonably susceptible of a defamatory connotation. In determining the sufficiency of a defamation pleading, we must “consider ‘whether the contested statements are reasonably susceptible of a defamatory connotation’ ” … , and, in doing so, we must “give the disputed language a fair reading in the context of the publication as a whole” … . Here, the emails were sent to clients of plaintiff who had previously been clients of defendants and advised them that defendant was no longer employed by plaintiff. The emails stated that the investment trading industry was “highly regulated,” that plaintiff had “compliance policies” to protect its clients against “conflicts of interest,” and that defendant found those policies “overly burdensome.” We conclude that the disputed language provides a basis “from which the ordinary reader could draw an inference” … that plaintiff was accusing defendant of failing to adhere to ethical standards in the investment trading industry. …

” ‘A statement imputing incompetence or dishonesty to the [party] is defamatory per se if there is some reference, direct or indirect, in the words or in the circumstances attending to their utterance, which connects the charge of incompetence or dishonesty to the particular profession or trade engaged in by [the party]’ ” … . The statement “must be more than a general reflection upon [the party’s] character or qualities[;] . . . [it] must reflect on [the party’s] performance or be incompatible with the proper conduct of [their] business” …. Here, as alleged in the proposed amended counterclaim, the statements conveyed that defendant was unable to conduct her work in a legally compliant and ethical manner and that she lacked professional competence or integrity. …

” ‘Defamation by implication’ is premised not on direct statements but on false suggestions, impressions and implications arising from otherwise truthful statements” … . There is a heightened legal standard for a claim of defamation by implication … . “Under that standard, ‘[t]o survive a motion to dismiss a claim for defamation by implication where the factual statements at issue are substantially true, the [party asserting the defamation claim] must make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference’ ” … . The second part of the test is an objective inquiry and ” ‘asks whether the plain language of the communication itself suggests that an inference was intended or endorsed’ ” … . Armbruster Capital Mgt., Inc. v Barrett, 2025 NY Slip Op 06493, Fourth Dept 11-21-25

Practice Point: Consult this decision for a detailed discussion of the elements of defamation, defamation per se, and defamation by implication.

 

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IN DETERMINING WHETHER THE PEOPLE’S CERTIFICATE OF COMPLIANCE WITH THEIR DISCOVERY OBLIGATIONS WAS VALID THE MOTION COURT RULED THE PEOPLE HAD ACTED IN GOOD FAITH; THE MATTER WAS REMITTED FOR THE APPLICATION OF THE CORRECT STANDARD: WHETHER THE PEOPLE ACTED WITH DUE DILIGENCE AND MADE REASONABLE EFFORTS TO SATISFIY THEIR OBLIGATIONS (FOURTH DEPT).

The Fourth Department remitted the matter for a new determination whether the People’s certificate of compliance (COC) with their discovery obligations was valid. The motion judge held the People “acted in good faith.” The appropriate inquiry is whether the People exercised due diligence and made reasonable efforts to satisfy their obligations:

… [T]he court erred in concluding that the People’s initial COC was proper solely on the basis that the People acted in good faith with respect to their discovery obligations. The court was required to determine whether the People satisfied their burden of establishing that they exercised due diligence and made reasonable efforts to satisfy their obligations under CPL article 245 at the time they filed their initial COC … . In light of the court’s failure to consider whether the People met that burden, we hold the case, reserve decision and remit the matter to Supreme Court to make that determination and, if appropriate, to determine whether the statement of readiness was valid and whether the People were ready within the requisite time period (see CPL 30.30 [1] [a]). People v Mosley, 2025 NY Slip Op 06484, Fourth Dept 11-21-25

Practice Point: The standard for determining whether the People’s certificate of compliance with their discovery obligations is valid is “due diligence,” not “good faith.”

 

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DEFENDANT MOVED TO SUPPRESS THE WEAPON SEIZED FROM DEFENDANT’S VEHICLE AFTER A TRAFFIC STOP ON THE GROUND THERE WAS NO PROBABLE CAUSE FOR THE STOP; THE POLICE CLAIMED THE REASON FOR THE STOP WAS DEFENDANT’S FAILURE TO WEAR A SEATBELT; SURVEILLANCE VIDEOS WHICH WOULD HAVE SHOWN WHETHER DEFENDANT WAS WEARING A SEARBELT WERE NOT PRESERVED; DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST AN ADVERSE INFERENCE CHARGE IN CONNECTION WITH THE SUPPRESSION MOTION; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter for legal argument and, if defendant so requests, reopening of the suppression hearing, determined defendant did not receive effective assistance of counsel. Surveillance videos which would have shown whether defendant was not wearing a seatbelt (the claimed probable cause for the stop) were not preserved. Defendant moved to suppress the weapon seized from the vehicle on the ground there was no probable cause for the traffic stop. Defense counsel was deemed ineffective for failing the request an adverse inference charge:

… [T]he single omission of failing to request that the court consider an adverse inference charge at the suppression hearing deprived defendant of meaningful representation … . Defense counsel’s error in failing to make that argument was sufficiently egregious and prejudicial as to deprive defendant of his constitutional right to effective legal representation because the only evidence presented by the People at the hearing was testimony from one of the arresting officers, whose testimony was inconsistent at times, and an adverse inference charge could have successfully undermined the officer’s testimony on the issue of probable cause to stop defendant, i.e., whether defendant was, in fact, not wearing a seatbelt. Indeed, suppression of the gun that was seized as a result of defendant’s encounter with the police would have been dispositive of the sole count of the indictment, charging defendant with criminal possession of a weapon in the second degree … . Under the circumstances of this case, defense counsel’s failure to request an adverse inference charge could not have been grounded in legitimate strategy … . We note that defendant’s contention survives his guilty plea inasmuch as he demonstrated that defense counsel’s error infected the plea bargaining process … .

We therefore conditionally modify the judgment by remitting the matter to Supreme Court “for further proceedings on the suppression application, to include legal argument by counsel for both parties and, if defendant so elects, reopening of the hearing” … . In the event that defendant prevails on the suppression application, the judgment is reversed, the plea is vacated and the indictment is dismissed and, if the People prevail, then the judgment “should be amended to reflect that result” … . People v Evans, 2025 NY Slip Op 06477, Fourth Dept 11-21-25

Practice Point: Here surveillance videos which would have shown whether defendant was not wearing a seatbelt (the claimed probable cause for the traffic stop) were not preserved. Defendant moved to suppress the weapon seized from the vehicle on the ground there was no probable cause for the stop. Defense counsel was deemed ineffective for failing to request an adverse inference charge with respect to the suppression hearing. The remedy: the matter was remitted for legal argument and, if defendant requests, reopening of the suppression hearing.

 

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IN THIS DRAM SHOP ACT CASE, DEFENDANT BAR DID NOT DEMONSTRATE DEFENDANT DRIVER WAS NOT VISIBLY INTOXICATED WHEN SERVED AND THEREFORE DID NOT MEET ITS INITIAL BURDEN FOR ITS SUMMARY JUDGMENT MOTION; A TWO-JUSTICE DISSENT ARGUED DEFENDANT BAR MET ITS INITIAL BURDEN, THUS SHIFITNG THE BURDEN TO THE PLANTIFF (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined, in this Dram Shop Act case, defendant bar did not demonstrate defendant driver was not visibly intoxicated when served alcohol. The dissenters argued the bar met its initial burden on its motion for summary judgment:

In support of the motion, defendant submitted evidence that, throughout the evening preceding the accident, plaintiff and a group of others—including the driver—were out celebrating and consumed alcohol. Just before they went to defendant’s bar, the entire group had been denied entry into another establishment because some members of the group were visibly intoxicated. At defendant’s bar, the group was served and consumed more alcohol. Although defendant’s owner and employees testified that defendant’s employees as a general practice do not allow visibly intoxicated persons to drink alcohol and that the employees were trained to recognize visibly intoxicated people, no one could specifically recall seeing the driver, nor could they describe the driver’s level of intoxication on the night at issue … . In fact, none of the deposition testimony submitted by defendant was from an individual physically present inside the bar at the time the driver was allegedly served.

From the dissent:

…. [W]e conclude that defendant met its initial burden on the motion by submitting uncontradicted deposition testimony “in which its employees averred that they had no recollection that [the driver] was visibly intoxicated while she was . . . at [defendant]’s establishment” … . … [D]efendant’s employees testified that staff are trained to recognize visibly intoxicated persons; that bartenders do not allow visibly intoxicated persons to drink alcohol; and that bouncers do not allow visibly intoxicated persons to enter the bar, that they make rounds inside the establishment in order to observe the patrons and determine if anyone is visibly intoxicated, and that they signal the bartenders to stop serving alcohol to patrons who are visibly intoxicated. Additionally, a bouncer testified that he recalled conducting “rounds inside the establishment” on the night of the incident and that he observed the patrons, as was his routine, but did not “signal[ ] to the bartenders that anyone was intoxicated.” Gonzalez v City of Buffalo, 2025 NY Slip Op 06423, Fourth Dept 11-21-25

Practice Point: In moving for summary judgment in a Dram Shop Act case, the defendant bar had the initial burden to demonstrate it did not serve a visibly intoxicated defendant. Because the majority concluded that initial burden was not met, the summary judgment motion was denied without the need to consider the plaintiff’s response. The dissent disagreed with the majority and argued the bar had met its initial burden.​

 

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