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THE TOWN AMBULANCE PARAMEDICS DECIDED NOT TO TAKE PLAINTIFF’S DECEDENT TO THE HOSPITAL; THAT DECISION WAS DISCRETIONARY IN NATURE ENTITLING THE TOWN TO GOVERNMENTAL FUNCTION IMMUNITY IN THIS MED MAL ACTION (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the town defendants were entitled to immunity for the actions of the two ambulance paramedics who decided against taking the decedent to the hospital:

“A municipality is immune from liability where the actions of its employees in performing governmental functions involve[ ] the exercise of discretion” … . “[A]mbulance assistance rendered by first responders . . . should be viewed as a classic governmental, rather than proprietary, function” … .

“[D]iscretionary . . . acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” … . As the First Department recently made clear, “a generally uniform approach in assessment and care does not change the discretionary nature” of a first responder’s actions or the governmental function they provide … . Under the circumstances presented here, we conclude that the Town defendants established that Rutenkroger’s and Rice’s actions were discretionary and, thus, the Town defendants are entitled to governmental function immunity. Indeed, plaintiff’s contentions pertain “to the quality of the care rendered by [Rutenkroger and Rice and,] even if such decisions prove to be erroneous, they do not cast the [Town] in damages” … . We further note that, “[b]ecause the actions of the [Town’s employees] were discretionary, this Court need not address the issue of whether a special duty was owed to [decedent]” … . Gumkowski v Schwaab, 2025 NY Slip Op 07139, Fourth Dept 12-23-25

Practice Point: Consult this decision for insight into the difference between discretionary and ministerial actions by government personnel. Here the town was immune from liability in this med mal case because the town ambulance paramedics’ determination that plaintiff’s decedent did not need to be taken to the hospital was a discretionary action (governmental function immunity).

 

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SUPREME COURT WENT BEYOND THE PARAMETERS OF THE REMITTAL BY ACCEPTING SUPPLEMENTAL ARGUMENTS ON NEW CASE LAW AND BY RENDERING A DECISION ON GROUNDS NOT INCLUDED IN THE REMITTAL; DISMISSAL OF THE COMPLAINT REVERSED, DEFAMATION CAUSES OF ACTION REINSTATED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined Supreme Court went beyond the parameters of the remittal. Supreme Court had dismissed the complaint. The Fourth Department reinstated several defamation causes of action:

We agree with plaintiff that the court impermissibly expanded the scope of the remittal. “[A] trial court, upon a remand or remittitur, is without power to do anything except to obey the mandate of the higher court, and render judgment in conformity therewith” … . This Court expressed our remittal directive in our order, and Supreme Court impermissibly expanded the scope of that remittal by accepting supplemental arguments on, inter alia, the effect of new case law relating to the retroactivity of the amended anti-SLAPP statute, and by basing its decision on grounds that were not included within the remittal .. . Trinh v Nguyen, 2025 NY Slip Op 07136, Fourth Dept 12-23-25

Practice Point: Here Supreme Court did not follow the mandate of the remittal by accepting new legal arguments and deciding the case on grounds not included in the remittal. Supreme Court’s dismissal of the complaint was reversed.

 

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THE FACT THAT THE CHILD LIVED WITH THE GRANDMOTHER FOR FOUR YEARS WAS AN “EXTRAORDINARY CIRCUMSTANCE” WHICH AFFORDED GRANDMOTHER STANDING TO SEEK CUSTODY (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined grandmother had demonstrated “extraordinary circumstances” such that she had standing to seek custody:

… [T]he grandmother met her burden of demonstrating other extraordinary circumstances with respect to both the mother and the father. The Court of Appeals has explained that “[i]n the absence of ‘surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances’, a parent may not be denied custody” … . Consistent with that principle of law, we have determined that “an extended disruption of custody as defined in [the statute] is merely ‘a specific example of extraordinary circumstances’ . . . and the statute was ‘not intended to overrule existing case law relating to third parties obtaining standing in custody cases’ ” … .

In determining whether extraordinary circumstances exist, “[n]o one factor should be viewed in isolation . . . , but rather the ‘analysis must consider the cumulative effect of all issues present in a given case . . . , including, among others, the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the . . . parent allowed such custody to continue without trying to assume the primary parental role’ ” … .

Here, we conclude that there are ” ‘other like extraordinary circumstances’ ” that give the grandmother standing to seek custody of the child … . Extraordinary circumstances arise from the fact that the now-six-year-old child has resided exclusively with the grandmother since she was two years old, the mother was incapable of caring for the child due to mental illness, and the father has not been significantly involved in the child’s life since birth. The father has had limited and sporadic visitation with the child and has never had the child with him overnight. He has not attended school events or medical appointments. Nor has he paid child support to either the mother or the grandmother. Finally, the child is emotionally attached to the grandmother and her half-brother, who has also been raised by the grandmother … . Matter of Morris v Smith, 2025 NY Slip Op 07133, Fourth Dept 12-23-25

Practice Point: Consult this decision for insight into the “extraordinary circumstances” which will afford a nonparent standing to seek custody. Here the fact that the child had resided with grandmother for four years was deemed such an “extraordinary circumstance.”

 

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DEFENDANT WAS NOT COERCED INTO PLEADING GUILTY; THE JUDGE’S DESCRIBING THE POSSIBLE RANGE OF SENTENCING, PLEADING GUILTY TO AVOID A HARSHER SENTENCE, THE JUDGE’S COMMENTING ON THE STRENGTH OF THE PEOPLE’S CASE, AND COUNSEL’S TELLING DEFENDANT THE SENTENCE WOULD LIKELY BE HARSHER AFTER TRIAL, DID NOT AMOUNT TO “COERCION” (FOURTH DEPT).

The Fourth Department, affirming defendant’s conviction, over a dissent, determined defendant’s guilty plea was knowing, intelligent and voluntary, the dissent disagreed:

[D]espite the court’s initial inclination to end the plea proceeding and allow the matter to proceed to trial and its indication that it could not accept a plea that was not voluntary, the court continued with the plea proceeding after defendant emphatically insisted that the plea “is voluntary . . . is voluntary . . . is voluntary” and that the court was not pressuring him. Defendant was given another opportunity to consult with defense counsel and then indicated that he wanted to proceed with the plea, and the court thereafter asked again whether defendant, with intent to cause serious physical injury, did in fact cause such injury to the victim by repeatedly stabbing her, to which defendant answered in the affirmative. The court then followed up one more time by asking defendant whether he was telling the truth when he answered that prior question, to which defendant again responded in the affirmative. Therefore, contrary to the dissent’s suggestion that the law required more of the court, the record reflects that the court “properly conducted such [a further] inquiry and that defendant’s responses to the court’s subsequent questions removed [any] doubt about [his] guilt” with respect to the previously negated elements of assault in the first degree … . …

n any event, we conclude that defendant’s challenge to the voluntariness of the plea lacks merit. Indeed, defendant’s contention that the court coerced him into accepting the plea is belied by the record because, during the plea colloquy, defendant denied that he had been threatened or otherwise pressured into pleading guilty and, moreover, defendant specifically denied that the court had pressured him into taking a plea … . Further, contrary to defendant’s assertion, “[a]lthough it is well settled that ‘[a] defendant may not be induced to plead guilty by the threat of a heavier sentence if [the defendant] decides to proceed to trial,’ ” we conclude that the statements made by the court ” ‘amount to a description of the range of the potential sentences’ rather than impermissible coercion” … . The fact that defendant ” ‘may have pleaded guilty to avoid receiving a harsher sentence does not render his plea coerced’ ” … . Likewise, contrary to defendant’s assertion, we conclude on this record that the court “did not coerce defendant into pleading guilty merely . . . by commenting on the strength of the People’s evidence against him” … . Contrary to defendant’s related assertion, we conclude that “defense counsel’s advice that [defendant] was unlikely to prevail at trial and that he would likely receive a harsher sentence if convicted after trial . . . does not constitute coercion” … . People v Freeman, 2025 NY Slip Op 07125, Fourth Dept 12-23-25

Practice Point: Consult this decision for insight into what does and does not amount to “coercion” in the context of a guilty plea.

 

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ALTHOUGH THE 16-YEAR-OLD DEFENDANT IN THIS MURDER CASE WAS LIABLE AS AN ACCOMPLICE, ACCOMPLICE-LIABILITY STANDING ALONE DOES NOT PRECLUDE REMOVAL TO FAMILY COURT; A GUILTY PLEA DOES NOT FORFEIT AN APPELLATE CHALLENGE TO THE DENIAL OF REMOVAL; THE WAIVER OF APPEAL WAS INVALID BECAUSE IT PURPORTED TO FORECLOSE ALL APPELLATE CHALLENGES (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, over a two-justice dissent, determined (1) defendant’s waiver of appeal was invalid because it purported to foreclose all appellate challenges; and (2) the statutory procedure for removing the 16-year-old defendant’s prosecution to Family Court was violated. The fact that defendant was charged as an accomplice in this carjacking/murder case did not disqualify the defendant from the removal procedure. Once the removal procedure is started, the People have 30 days to demonstrate removal is not appropriate. The majority disagreed with the dissent’s argument that the “removal-to-Family-Court-issue” was forfeited by defendant’s guilty plea:

Defendant orally waived his right to appeal and executed a written waiver thereof. The language in the written waiver, however, is “inaccurate and misleading insofar as it purports to impose ‘an absolute bar to the taking of a direct appeal’ and to deprive defendant of his ‘attendant rights to counsel and poor person relief, [as well as] all postconviction relief separate from the direct appeal’ ” … . * * *

Defendant contends that the court erred in concluding that the People established by a preponderance of the evidence that defendant “caused significant physical injury to a person other than a participant in the offense” (CPL 722.23 [2] [c] [i]) and that defendant was therefore disqualified from having the matter transferred to Family Court. Initially, we respectfully disagree with our dissenting colleagues that defendant’s contention is forfeited by his guilty plea. It is undisputed that a guilty plea does not “extinguish every claim on appeal” and that the issues that are not forfeited by the plea generally “relate either to jurisdictional matters . . . or to rights of a constitutional dimension that go to the very heart of the process” … . * * *

The plain language of CPL 722.23 (2) (c) supports the conclusion that the Legislature did not intend for the circumstances disqualifying an adolescent offender from removal to Family Court to be coextensive with criminal liability, including principles of accessorial liability, for a statutorily designated violent crime. Indeed, such a result could have been achieved by disqualifying adolescent offenders based solely on the crime charged without reference to any further factors. People v Jacobs, 2025 NY Slip Op 07124, Fourth Dept 12-23-25

Practice Point: Here the 16-year-old defendant should not have been denied removal to Family Court solely based on accomplice liability for murder. The right to challenge the denial of removal was not forfeited by defendant’s guilty plea. The waiver of appeal was invalid because it purported to foreclose all appellate challenges.

 

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DEFENDANT’S WAIVER OF HIS RIGHT TO COUNSEL WAS NOT KNOWING, INTELLIGENT AND VOLUNTARY; NEW HEARINGS AND TRIAL ORDERED; CRITERIA EXPLAINED IN SOME DETAIL (FIRST DEPT).

The First Department, ordering new hearings and a new trial, determined defendant’s waiver of his right to counsel was not knowing, voluntary and intelligent:

Defendant’s criminal history, which included drug possession and sale convictions dating back to 1992, and his in-court remarks regarding his history of substance abuse issues and present drug use constituted a “red flag” which should have triggered at least a brief inquiry into defendant’s mental capacity and comprehension of the proceedings … . The record also does not “affirmatively disclose” that the court “delved into [] defendant’s age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver” … . As the trial judge was only assigned to defendant’s case about a month before trial, this was not a case where the judge “had numerous opportunities to see and hear defendant firsthand” to evaluate his knowledge and familiarity with the criminal justice system … .

Moreover, the court’s colloquy did not “accomplish the goals of adequately warning a defendant of the risks inherent in proceeding pro se, and apprising a defendant of the singular importance of the lawyer in the adversarial system of adjudication” … . Although defendant correctly recited the charges against him, he also suggested that he could get convicted of additional charges, and the record does not reflect that he was ever informed of the potential aggregate sentence he faced after trial … . The court reminded defendant that he was “not trained as a lawyer” and did not “understand about cross-examination,” so it was “dangerous” and not in his best interests to proceed pro se; these “brief, generalized warnings do not satisfy the requirement for a searching inquiry” … . “The court failed to warn defendant about the numerous pitfalls of representing himself before and at trial, such as unfamiliarity with legal terms, concepts, and case names; the potential challenges of cross-examining witnesses and delivering an opening statement and summation as a pro se criminal defendant” … . People v Rivera, 2025 NY Slip Op 07231, First Dept 12-23-25

Practice Point: Consult this decision for insight into what a judge must explain to a defendant seeking to waive the right to counsel.

 

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IT WAS AN ABUSE OF DISCRETION TO ORDER AN EVIDENTIARY HEARING IN THIS TOXIC TORT CASE; NO FRYE HEARING WAS NECESSARY BECAUSE THE EXPERTS DID NOT USE NOVEL OR EXPERIMENTAL METHODS; NO PARKER HEARING WAS NECESSARY BECAUSE GENERAL AND SPECIFIC CAUSATION WERE ADEQUATELY ADDRESSED IN THE EXPERTS’ SUBMISSIONS AND GENERALLY ACCEPTED METHODS WERE USED (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Ceresa, determined there was no need for a Frye hearing in this toxic tort case because none of the three experts used methods that were novel or experimental. In addition, there was no need for a Parker hearing because the expert’s used generally accepted methods to determine general and specific causation. Therefore ordering the evidentiary hearing was an abuse of discretion:

“The singular purpose of a Frye hearing is to ascertain the reliability of novel scientific evidence by determining whether the methods used to generate such evidence will, when properly performed, produce results accepted as reliable within the scientific community generally” … . ” ‘A court need not hold a Frye hearing where it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony’ ” … . “Absent a novel or experimental scientific theory, a Frye hearing is generally unwarranted” … . * * *

… [U]nder Parker, ” ‘[t]he focus moves from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of the evidence at trial.’ . . . [In toxic tort cases,] [i]t is well-established that an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)” (Parker v Mobil Oil Corp., 7 NY3d at 447-448 …). … [A] s plaintiffs’ [experts’] written submissions … offered the requisite causal links, there was no need for a hearing to determine whether these foundational standards were met. Marpe v Tonoga, Inc., 2025 NY Slip Op 07053, Third Dept 12-18-25

Practice Point: Consult this opinion for insight into when a Frye/Parker hearing is necessary to determine the admissibility of expert evidence in a toxic tort case. The evidentiary hearing had been ordered by the trial judge, but the Third Department held ordering the hearing was an abuse of discretion.

 

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PURSUANT TO THE “HUMANE ALTERNATIVES TO LONG-TERM CONFINEMENT ACT (HALT ACT),” AN INMATE WHO IS FACING SEGREGATED CONFINEMENT HAS A RIGHT TO THE PRESENCE OF COUNSEL AT THE DISPOSITIONAL PHASE OF THE DISCIPLINARY HEARING (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Powers, determined that the incarcerated petitioner had a right to have his attorney present during the dispositional phase of the disciplinary hearing after he was found guilty of possession of a weapon. The Hearing Officer had determined counsel’s presence was “no longer necessary” in violation of the “Humane Alternatives to Long-Term Solitary Confinement Act” (the HALT Act—Correction Law 137):

… [F]ollowing the passage of the HALT Act, Correction Law § 137 provides that an incarcerated individual “shall be permitted to be represented” during a disciplinary hearing that may result in placement in segregated confinement “by any attorney or law student, or” with certain limitations, “any paralegal or incarcerated person” (Correction Law § 137 [6] [l]). The pertinent regulations have since also been amended to specify that “[w]here an incarcerated individual is placed in, or pending possible placement in, segregated confinement pending a disciplinary hearing or superintendent’s hearing, such incarcerated individual shall be permitted to be represented by,” as is relevant here, “an attorney, having good standing, admitted to practice in any state” (7 NYCRR 251-5.2 [a] [1]).

Therefore, pursuant to both statute and regulation, if an incarcerated individual so chooses, he or she is entitled to have representation present during a disciplinary hearing when the permissible sanctions include the imposition of segregated confinement. Contrary to the Hearing Officer’s determination, the dispositional phase is an integral aspect of the disciplinary hearing and the statutory and regulatory right to representation at issue here extends to that phase of the hearing. Matter of Wingate v Martuscello, 2025 NY Slip Op 07048, Third Dept 12-18-25

 

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FAMILY COURT DID NOT PROVIDE FATHER WITH EVERY REASONABLE INFERENCE AND RESOLVE ALL CREDIBILITY ISSUES IN HIS FAVOR WHEN CONSIDERING MOTHER’S MOTION TO DISMISS THE CUSTODY MODIFICATION PETITION AFTER FATHER’S TESTIMONY; ALTHOUGH FATHER DESCRIBED WHAT THE CHILDREN TOLD HIM, SUCH HEARSAY CAN BE ADMISSIBLE IN ABUSE AND NEGLECT PROCEEDINGS; IN ADDITION, THE LINCOLN HEARING, WHICH WAS CANCELLED BY THE JUDGE, COULD HAVE SERVED TO CORROBORATE FATHER’S TESTIMONY; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s motion to dismiss at the close of father’s testimony in this modification of custody proceeding should not have been granted. The judge granted the motion to dismiss because there was no corroboration of father’s testimony which described what the children told him. However the children’s hearsay is admissible when it concerns abuse or neglect.  After dismissing the petition, the court cancelled the scheduled Lincoln hearing  The cancellation compounded the judge’s error because the children’s testimony at a Lincoln hearing can serve to corroborate a parent’s testimony:

The father testified that the children made numerous statements to him describing the mother’s physical discipline of them and detailing the mother’s excessive alcohol consumption. The father also stated that he had observed changes in the children’s behavior, pointing specifically to the older child exhibiting signs of excessive nervousness and both children’s reluctance to return to their mother’s home at the conclusion of his parenting time. “A child’s out-of-court statements are admissible in a Family Ct Act article 6 proceeding when they pertain to abuse or neglect and are sufficiently corroborated” … , and “the hearing court is accorded considerable discretion in determining whether there is sufficient corroboration” … . Notably, “[a] relatively low degree of corroboration is sufficient, and the requirement may be satisfied by any other evidence tending to support the reliability of the child’s statements” … .

We find that Family Court improperly granted the mother’s motion to dismiss as it failed to provide the father with the benefit of every reasonable inference and resolve all credibility issues in his favor … . Of greater concern, given the court’s reason for granting the motion — lack of corroboration of the father’s accusations — it abused its discretion in canceling the Lincoln hearing as “information shared by [the children] during a Lincoln hearing may serve to corroborate other evidence adduced at a fact-finding hearing” … . At the time of the hearing, the children were nine and six years of age and the record is bereft of any indication that the children were unwilling or incapable of participating in the Lincoln hearing. Thus, we remit the matter to Family Court to conduct a Lincoln hearing and any appropriate hearing following same … . Matter of Kalam EE. v Amber EE., 2025 NY Slip Op 07050, Third Dept 12-18-25

Practice Point: Consult this decision for insight into how the evidence presented by the petitioner in a custody modification proceeding should be analyzed in the face of a motion to dismiss, including the admissibility of hearsay presented by the petitioner describing what the children told the petitioner.

Practice Point: Children’s testimony at a Lincoln hearing can serve to corroborate a parent’s testimony. Here it was deemed reversible error for the judge to dismiss the petition after petitioner’s testimony on the ground there was no corroboration of the statements petitioner ascribed to the children while cancelling the Lincoln hearing which could have provided corroboration.

 

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THE MODIFICATION OF CUSTODY PETITION WAS SUFFICIENT TO WITHSTAND THE MOTION TO DISMISS, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing Family Court, determined the maternal grandmother, who has custody of the children, sufficiently alleged a change of circumstances which may warrant an modification of custody such that the children could choose to spend time with the maternal grandfather and the maternal grandmother and grandmother could live together. The petition for modification was based upon the ages of the children (late teens to age of majority) and the grandfather’s extended period of sobriety. The petition was deemed sufficient to withstand a motion to dismiss:

“In any modification proceeding, the threshold issue is whether there has been a change in circumstances since the prior custody order significant enough to warrant a review of the issue of custody to ensure the continued best interests of the children” … . “In assessing whether the petitioner has alleged the requisite change in circumstances, so as to withstand a motion to dismiss for failure to state a claim, Family Court must liberally construe the petition, accept the facts alleged in the petition as true, afford the petitioner the benefit of every favorable inference and resolve all credibility questions in favor of the petitioner” … .

The grandmother sustained this threshold burden. Matter of Christine X. v James Y., 2025 NY Slip Op 07060, Third Dept 12-18-25

Practice Point: Consult this decision for the analytical criteria for assessing whether a petition for a modification of custody is sufficient to withstand a motion to dismiss.

 

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