You are here: / HERE THE JUDGE DID NOT HAVE THE AUTHORITY TO SUMMARILY MAKE A SEVERE ABUSE...

Search Results

/ , , ,

HERE THE JUDGE DID NOT HAVE THE AUTHORITY TO SUMMARILY MAKE A SEVERE ABUSE FINDING AND TERMINATE RESPONDENTS’ PARENTAL RIGHTS BASED UPON A PRIOR ABUSE HEARING; SEVERE ABUSE WAS NOT ALLEGED IN THE PRIOR HEARING; A SEVERE ABUSE FINDING MUST BE BASED ON A “CLEAR AND CONVINCING” STANDARD, NOT THE “PREPONDERANCE OF EVIDENCE” STANDARD APPLIED IN THE PRIOR HEARING; IN ADDITION, THE JUDGE SHOULD NOT HAVE ISSUED AN ORDER OF DISPOSITION WITHOUT HOLDING A DISPOSITIONAL HEARING; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court’s “severe abuse” finding and the consequent termination of parental rights, determined it was error to make these rulings based upon a prior abuse hearing because “severe abuse” was not alleged in that hearing. In addition, a finding of “severe abuse” must be based on “clear and convincing evidence,” not the “preponderance of the evidence” standard applied in the prior hearing. Also, the judge should not have issued an order of disposition without holding a dispositional hearing:

… [T]he court did not have the authority, in the context of this Social Services Law § 384-b proceeding, to retroactively make a finding of severe abuse under Family Court Act § 1051 (e) based upon the evidence adduced during the prior article 10 abuse proceeding. … Family Court Act § 1051 (e) provides that in an article 10 abuse case, the court may “[i]n addition to a finding of abuse, . . . enter a finding of severe abuse or repeated abuse, . . . which shall be admissible in a proceeding to terminate parental rights pursuant to [Social Services Law § 384-b (4) (e)] . . . If the court makes such additional finding of severe abuse or repeated abuse, the court shall state the grounds for its determination, which shall be based upon clear and convincing evidence.”

Thus, while it is true that a court is permitted to make a severe abuse finding as part of the disposition in an article 10 abuse case … , that did not occur here. Indeed, in the context of the underlying article 10 proceeding, petitioner did not seek a determination that Respondents severely abused the child, and the court made no such determination. Moreover, the entirety of the court’s findings in the article 10 matter were based upon a preponderance of the evidence—not clear and convincing evidence as required by the statute … . Finally, we note that the court improperly issued an order of disposition in this case before conducting a dispositional hearing (see Family Ct Act § 631; Social Services Law § 384-b [8] [f]). We therefore reverse the order and remit the matter to Family Court for further proceedings on the petition.  Matter of Kevin V. (Sara L.), 2025 NY Slip Op 06422, Fourth Dept 11-21-25

 

/ , , , ,

THE MOTION COURT PROPERLY ISSUED A PROTECTIVE ORDER REQUIRING PLAINTIFF’S COUNSEL IN THIS MED MAL CASE TO RESCIND THE CORRESPONDENCE SENT TO PLAINTIFF’S TREATMENT PROVIDERS WHICH DISCOURAGED THEM FROM SPEAKING WITH DEFENSE COUNSEL; THE DISSENT ARGUED THE MAJORITY WAS IMPROPERLY ISSUING AN ADVISORY OPINION (FOURTH DEPT).

The Fourth Department, over a dissent which argued the majority was improperly issuing an advisory opinion, determined the trial judge in this medical malpractice action properly ordered plaintiff’s counsel rescind correspondence sent to treatment providers which discouraged the treatment providers from speaking with defense counsel. The correspondence accompanied the “Arons” speaking authorizations executed by the plaintiff:

… [A] plaintiff who signs an authorization allowing a treating physician to speak to defense counsel about the plaintiff’s medical condition at issue should not be allowed to send a letter separately to the same physician requesting that the physician not speak to defense counsel. Permitting plaintiffs to make such a request would undermine the purpose of the Arons authorization and, at the very least, be confusing to the physician … .

Adding to the confusion is the statement “I value and wish to protect the confidentiality of our physician-patient relationship,” which may lead the physician to conclude that, notwithstanding plaintiff’s execution of the speaking authorization, plaintiff was not actually waiving the physician-patient privilege or the privacy protections afforded by HIPAA. …

… [T]he letter … might lead the physician to believe, wrongly, that plaintiff has a right to attend any informal interview with defense counsel. … [A] defendant’s attorney may ask treating physicians to participate in ex parte interviews, which by definition do not involve the plaintiff. While a physician may insist that the plaintiff be present for such an interview, that is a decision for the physician alone to make. Just as a defendant’s attorney has no right to interview the physician informally … , a plaintiff has no right to attend the interview (the plaintiff has only the right to ask the physician for permission to attend an interview).

Based on the above, we cannot conclude that the court abused its discretion in directing plaintiff “to send correspondence to his treating physicians rescinding all prior letters sent containing the language that the [c]ourt has deemed to be confusing, misleading and/or intimidating.”  Murphy v Kaleida Health, 2025 NY Slip Op 06421, Fourth Dept 11-21-25

Practice Point: Here the letters sent to treatment providers by plaintiff’s counsel, which accompanied the “Arons” speaking authorizations, improperly discouraged the treatment providers from speaking with defense counsel. Plaintiff’s counsel was properly ordered to rescind the correspondence.

 

/

DEFENDANT WAS CONVICTED OF ASSAULT ON A PEACE OFFICER AND ASSAULT SECOND; THE ASSAULT SECOND CONVICTION WAS REVERSED BECAUSE (1) ASSAULT SECOND IS AN INCLUSORY CONCURRENT COUNT OF ASSAULT ON A PEACE OFFICER, AND (2) ASSAULT SECOND IS A LESSER INCLUDED OFFENSE OF ASSAULT ON A PEACE OFFICER (FOURTH DEPT).

The Fourth Department reversed the assault second conviction because assault second is an inclusory concurrent count of assault on a peace officer:

… [T]he conviction of assault in the second degree cannot stand. … [T]his Court has previously determined that assault in the second degree “is an inclusory concurrent count of assault on a [peace] officer” … . Moreover, as charged here, assault in the second degree “is a lesser included offense of assault on a [peace] officer” … . As a result, that part of the judgment convicting defendant of assault in the second degree must be reversed and count 4 of the indictment dismissed … . People v Engles, 2025 NY Slip Op 06412, Fourth Dept 11-21-25

 

/ , ,

DEFENDANT HOSPITAL’S EMERGENCY ROOM PERSONNEL WERE UNAWARE PLAINTIFF HAD EXECUTED A “MOLST” DECLINING LIFE-SAVING TREATMENT WHEN THEY PERFORMED CHEST COMPRESSIONS WHICH REVIVED PLAINTIFF BUT FRACTURED RIBS; PLAINTIFF SUFFERED ANOTHER HEART ATTACK SEVEN HOURS LATER AND DIED; A JURY AWARDED DAMAGES FOR PAIN AND SUFFERING; PLAINTIFF’S EXPERT DID NOT SUFFICIENTLY ARTICULATE A STANDARD OF CARE OR A VIOLATION OF A STANDARD OF CARE; THE DEFENSE MOTION FOR A DIRECTED VERDICT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the denial of defendant hospital’s motion for a directed verdict in this med mal case, determined the plaintiff’s expert did not establish the applicable standard of care or a breach thereof. Plaintiff had executed a Medical Order for Life-Sustaining Treatment (MOLST) declining life-saving measures. Hospital personnel were not aware of the MOLST when plaintiff presented in the emergency room. When plaintiff became unresponsive, chest compressions were performed. Plaintiff was revived but he had suffered rib fractures. The plaintiff suffered a second heart attack and died seven hours later. The jury awarded damages for pain and suffering:

… [T]he court erred in denying [defendant’s] motion for a directed verdict. “[V]iewing the evidence in [the] light most favorable to [plaintiff] and affording [plaintiff] the benefit of every inference,” we conclude that there was “no rational process by which a jury could find in favor of” plaintiff inasmuch as there was no expert testimony establishing the applicable standard of care or a breach thereof … . At trial, plaintiff’s expert described how a hospital could communicate a patient’s MOLST in order to ensure that it was honored, what hospitals were “allowed” to do, what he would “expect,” what “should” happen, and what “option[s]” were available, but he did not state what an accepted standard of care required. Further, even assuming, arguendo, that plaintiff’s expert articulated a standard of care, we conclude that he failed to opine that any such standard was violated under the specific circumstances of this case … . Cianci v University of Rochester, 2025 NY Slip Op 06492, Fourth Dept 11-21-25

Practice Point: Consult this decision for an example of vague expert testimony in a med mal case which failed to articulate a standard of care or a breach thereof.

 

/ , ,

THE JUDGE DID NOT FOLLOW THE REQUIRED PROCEDURE FOR FINDING NEGLECT ON A GROUND NOT ALLEGED IN THE PETITION; TO DO SO, THE JUDGE MUST AMEND THE ALLEGATIONS IN THE PETITION TO CONFORM TO THE PROOF AND GIVE THE RESPONDENT TIME TO RESPOND TO THE AMENDED ALLEGATIONS; NEITHER WAS DONE; PETITION DISMISSED (FOURTH DEPT).

The Fourth Department, dismissing the neglect petition, determined Family Court did not follow the required procedure for finding neglect on a ground which was not alleged in the petition. The court may amend the allegations in the petition to conform to the proof, provided the respondent is given a reasonable time to respond to the amended allegations. Here the court did not amend the allegations or give mother time to respond:

Pursuant to Family Court Act § 1051 (b), “[i]f the proof does not conform to the specific allegations of the petition, the court may amend the allegations to conform to the proof; provided, however, that in such case the respondent shall be given reasonable time to prepare to answer the amended allegations.” Here, the basis for the court’s finding of neglect pursuant to section 1012 (f) (i) (B) was not alleged in the petition, and the court did not amend the allegations to conform to the proof or give the mother notice or an opportunity to respond to any such implied amendment … . As the mother contends, had she known that the court was considering a theory of neglect based solely on her post-disclosure conduct, she would have prepared a defense to that theory. We therefore conclude that the court’s finding of neglect on that ground was improper … , and the petition must be dismissed … . Matter of Mariah W. (Amber N.), 2025 NY Slip Op 06487, Fourth Dept 11-21-25

Practice Point: To find neglect on a ground not alleged in the petition, the judge must conform the allegations in the petition to the proof and give the respondent time to respond to the amended allegations. Here the failure to follow that procedure resulted in dismissal of the petition.

 

/ ,

THE SENTENCING COURT DID NOT ABUSE ITS DISCRETION IN DENYING A YOUTHFUL OFFENDER ADJUDICATION, DESPITE THIS BEING DEFENDANT’S FIRST CONTACT WITH THE JUDICIAL SYSTEM, HIS ACQUITTAL OF THE MOST SERIOUS CHARGES, AND AFFIDAVITS FROM SEVERAL JURORS IN SUPPORT OF THE MOTION TO SET ASIDE THE VERDICT; THERE WAS A SUBSTANTIVE DISSENT (THIRD DEPT).

The Third Department, affirming defendant’s attempted assault conviction and the denial of youthful offender status, over a dissent, determined the trial court did not abuse its discretion in denying the request for a youthful offender adjudication. The victim was slashed with a knife in the abdomen and arm. It was defendant’s first contact with the criminal justice system. Affidavits from some of the jurors were submitted in support of defendant’s motion to set aside the verdict:

… Supreme Court noted that it had received multiple letters in support of defendant which indicated that he was of “upstanding character.” The court agreed with defendant’s assertion that this was his first involvement with the criminal justice system and that he had avoided circumstances like this in the past. The court considered these facts in imposing the sentence, but also that there was no evidence that any other individual had been involved in the physical altercation between defendant and the victim. The court expressly disbelieved defendant’s explanation that he carried the knife at all times because he feared for his safety, in view of the fact that defendant’s presence with the knife was explicitly requested. The court noted that if defendant was truly afraid for his safety the appropriate response would be to call campus police, not show up to the fight with knife in tow. The court also paid importance to defendant’s failure to take accountability or acknowledge that his actions caused the victim’s injury, despite having expressed generalized sympathy for the victim. The court found that, although eligible for youthful offender status, the circumstances of the crime did not warrant granting the request and imposed a five-year term of incarceration. * * *

From the dissent:

… “[Y]outhful offender designations are given to those who have a real likelihood of turning their lives around, and the protection gives these individuals the opportunity for a fresh start, without a criminal record” … . That is precisely what the facts of this case present: an individual who made a grave mistake but appears motivated to redeem himself. In my view, although defendant’s crime is significant, justice is better served by imposing a sentence that is commensurate with the severity of his crime while also permitting him to become a productive member of society upon release, which will occur at a critical time in his transition to adult life … . People v Hall, 2025 NY Slip Op 06366, Third Dept 11-20-25

Practice Point: Consult this decision for insight into the broad discretion accorded a judge in determining whether to adjudicate a defendant a youthful offender.​

 

/ ,

ALTHOUGH CLAIMANT’S MEDICAL REPORT DID NOT ADHERE TO THE REQUIREMENTS OF WORKERS’ COMPENSATION LAW 137 AND COULD BE DEEMED INADMISSIBLE FOR THAT REASON, THE EMPLOYER FAILED TO MAKE A TIMELY OBJECTION TO THE REPORT; THE PRECLUSION OF THE REPORT WAS THEREFORE ERROR (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the medical report (by Dr, Kountis) finding claimant had a 42.5% schedule loss of use (SLU) of the right wrist should not have been precluded because it did not meet the requirements of Workers’ Compensation Law 137. Although the Board has the power to preclude the report for that reason, the employer did not make a timely objection to the report:

Although “[a] report of an examination that does not substantially comply with the requirements of Workers’ Compensation Law [§] 137 . . . shall not be admissible as evidence,” a party raising an objection to such a report’s admissibility must “raise [that] objection in a timely manner” … . Claimant filed Kountis’ report in March 2023, after which the employer was notified that it had 75 days to respond in any of several enumerated ways, including by filing a memorandum to refute the sufficiency and credibility of the report. At no time during that 75-day period did the employer challenge Kountis’ report for failing to adhere to the requirements of Workers’ Compensation Law § 137. Further, the employer failed to raise the argument during the subsequent hearing held in September 2023. It is clear that the employer had, and failed to avail itself of, ample opportunity to challenge Kountis’ report prior to the WCLJ’s determination. As a result, the employer’s eventual challenge was untimely, and it was error for the Board to preclude Kountis’ report … . Matter of Troiano v New York City Hous. Auth., 2025 NY Slip Op 06377, Third Dept 11-20-25

Practice Point: If there are grounds for precluding a medical report for failure to meet the requirements of Workers’ Compensation Law 137, the employer must make a timely objection to the report. Here the employer failed to object to the report during the 75-day period allowed for objections and failed to object in a hearing held six or seven months after the report was filed. The Third Department determined, under those facts, it was error to preclude the report.

 

/

A DEFENDANT, BY HIS OR HER CONDUCT, CAN FORFEIT THE RIGHT TO A TRIAL BY 12 JURORS; HERE DEFENDANT APPROACHED THE JURY FOREMAN AT THE FOREMAN’S HOME AND THE FOREMAN WAS DISCHARGED; THE TRIAL JUDGE PROPERLY PROCEEDED WITH 11 JURORS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, determined defendant, by his egregious conduct directed at the jury foreperson, forfeited his right to a 12-person jury and the trial properly proceeded to a verdict with the remaining 11 jurors:

The foreperson testified that the court adjourned at around 1:00 the day before and, at around 1:25, he took a rideshare home. Outside the gate to his home, a man approached him “on behalf of” defendant and said that defendant was innocent and “being extorted.” The man handed him documents, three of which the foreperson produced for the court. The foreperson asked how the man knew where he lived; the man said: “Public records.” The foreperson testified that he was unsure if the man was the same person as defendant and denied telling the ADA that it was defendant. He described the man as the same height as himself, of indeterminate race, dark-skinned but lighter than himself, average build, and wearing a hat, sunglasses, and a jacket with a high collar. In addition, it was overcast and rainy. The whole interaction lasted under a minute, after which the foreperson went inside and called the ADA [the foreperson’s friend, not the trial ADA] “in a bit of a panic,” concerned for his family’s safety. He then contacted the court on the ADA’s advice. He testified that he could not be impartial. With the agreement of the parties, the court discharged him from the jury, reminded him that the case was ongoing, and instructed him not to speak to anyone about his experience. * * *

Whether forfeiture applies to the right to a jury of 12 is an issue of first impression, but forfeiture has been applied to many constitutional rights in the criminal procedure context. For example, a defendant may forfeit the right to counsel by engaging in ” ‘egregious conduct,’ ” albeit “only as a matter of ‘extreme, last-resort . . . analysis’ ” in cases involving brutal, violent, or persistent abuse … . Use of “violence, threats or chicanery” to make a witness unavailable may result in the forfeiture of the right to confront the witness … . A defendant may forfeit the right to be present at all stages of trial by engaging in courtroom conduct so disruptive that the trial cannot proceed in their presence … . Likewise, a pro se defendant’s disruptive conduct may result in the forfeiture of the right to self-representation … .

We see no reason to exclude the right to trial by a jury of exactly 12 persons from the universe of forfeitable rights. People v Sargeant, 2025 NY Slip Op 06361, CtApp 11-20-25

Practice Point; A defendant, by his or her conduct, can forfeit the right to a trial by 12 jurors. Here the defendant approached the jury foreman at the foreman’s home resulting in the foreman’s discharge from the jury. The trial judge properly proceeded with 11 jurors.

 

/

THE EXTENSION (NOW TO 2026) OF THE TIME FOR PARTICIPANTS IN THE 9-11 CLEANUP TO FILE CLAIMS FOR MEDICAL BENEFITS DOES NOT APPLY TO CLAIMS FOR DEATH BENEFITS BY A BENEFICIARY OF A DECEASED PARTICIPANT; HERE THE PARTICIPANT’S WIFE MADE A CLAIM FOR DEATH BENEFITS WHICH WAS PROPERLY DENIED BECAUSE THE STATUTORY DEADLINE IN WORKERS’ COMPENSATION LAW SECTION 28 HAD PASSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the two-year death-benefit statute of limitations in Workers’ Compensation Law section 28 precluded a claim for death benefits made by the wife of a volunteer who participated in the 9-11 cleanup and who had received lifetime benefits for resulting medical conditions. Although the deadline for claims for medical benefits has been extended (to 2026), that extension does not apply to claims for death benefits by surviving beneficiaries:

[Workers’ Compensation Law 168] explicitly refers to “[a] claim by a participant,” permits such participant’s claim to be filed within the enumerated extended time period, and again repeats “[a]ny such participant” when stating that certain previously denied claims “shall be reconsidered by the board” … . The phrase “claim by a participant” does not encompass claims by the surviving beneficiaries of those individuals. This is made clearer by comparison with the language in Workers’ Compensation Law § 18, which expressly provides that notice may be given by “any person claiming to be entitled to compensation or some one in his behalf” and can be “signed by [the employee] or by a person on his behalf or, in case of death, by any one or more of his dependents, or by a person, on their behalf.” Likewise, Workers’ Compensation Law § 28 refers to “the claimant” and references payments “to an employee or his dependents in case of death.” Workers’ Compensation Law § 168’s use of the phrase “[a] claim by a participant” must therefore be understood to mean that only a claim brought by a participant, and not by the survivors or beneficiaries of a participant, may benefit from the extended time limits of Workers’ Compensation Law § 168. As the Appellate Division reasoned, “it was decedent who was entitled to file a claim for benefits outside of the period allowed by Workers’ Compensation Law § 28” … .

No other provision provides claimant with relief from the requirement that claims be filed within the two-year limitations period. Matter of Garcia v WTC Volunteer, 2025 NY Slip Op 06360, CtApp 11-20-25

Practice Point: Claims for death benefits by the beneficiaries of deceased participants in the 9-11 cleanup are subject to the two-year statute of limitations in Workers’ Compensation Law.

 

/ ,

PLAINTIFF WAS INJURED WHEN SHE USED HER ARM TO KEEP THE ELEVATOR DOOR FROM CLOSING; DEFENDANTS DEMONSTRATED THE ELEVATOR WAS IN GOOD WORKING CONDITION TWO WEEKS BEFORE PLAINTIFF’S INJURY; DEFENDANTS WERE ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants (building owner and elevator company) were entitled to summary judgment dismissing the complaint which alleged the elevator doors slammed shut on plaintiff’s hand. A video showed that plaintiff extended her arm between the door frame and the elevator door to keep it from closing:

Movants sustained their initial burden of demonstrating that the elevator door was safe and code compliant at the time of the accident and that plaintiff’s conduct was the sole proximate cause of the accident. The report prepared by defendant … , approximately two weeks prior to the accident, found that the subject elevator was maintained commensurate with local industry practices and that the systems functioned at or near recommended standards. Moreover, the video of the incident, which plaintiff authenticated by testifying that it was a fair and accurate depiction of the events, showed that plaintiff extended her arm between the door frame and the elevator door to keep the door from closing. Such evidence was sufficient to demonstrate the absence of a triable issue of fact … . Ellerbee v 61 W. 62 Owners Corp., 2025 NY Slip Op 06386, First Dept 11-20-25

Practice Point: If you are injured using your arm or hand to stop an elevator door from closing and it is shown the elevator was working properly, your complaint will be dismissed. (But isn’t it foreseeable that people will try to stop an elevator door from closing with their hands, and shouldn’t there be a safety mechanism which would prevent the door from closing?)

 

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