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HERE THE EVIDENCE WAS PURELY CIRCUMSTANTIAL; DEFENDANT’S REQUEST FOR A CIRCUMSTANTIAL-EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED ON THE MURDER AND ATTEMPTED MURDER CHARGES (FOURTH DEPT). ​

The Fourth Department, ordering a new trial on the murder and attempted murder charges, determined the judge should have given the circumstantial-evidence jury instruction:

“[A] trial court must grant a defendant’s request for a circumstantial evidence charge when the proof of the defendant’s guilt rests solely on circumstantial evidence . . . By contrast, where there is both direct and circumstantial evidence of the defendant’s guilt, such a charge need not be given” … .

The People argue that certain statements made by defendant provided some direct evidence of defendant’s guilt of those charges. A defendant’s “statement[s are] direct evidence only if [they] constitute a relevant admission of guilt” … . Here, we conclude that the statements identified by the People were not admissions of guilt; rather, because they “merely includ[ed] inculpatory acts from which a jury may or may not infer guilt, the statement[s were] circumstantial and not direct evidence” … . The People thus failed to present ” ‘both direct and circumstantial evidence of . . . defendant’s guilt’ ” that would have negated the need for a circumstantial evidence charge … . People v Rodriguez, 2025 NY Slip Op 02454, Fourth Dept 4-25-25

Practice Point: Where the evidence against a defendant is both circumstantial and direct, a request for a circumstantial-evidence jury instruction is properly denied. Where the evidence is purely circumstantial, the request must be granted.​

Practice Point: A defendant’s statements are direct evidence only if they constitute an admission of guilt. Where, as here, the statements include inculpatory acts from which guilt can be inferred the statements constitute circumstantial evidence.

 

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THE “ALLEGEDLY INCAPACITATED PERSON” (AIP) WAS NOT PRESENT FOR THE MENTAL HYGIENE LAW GUARDIANSHIP HEARING; THE AIP’S ATTORNEY CANNOT CONSENT TO THE APPOINTMENT OF A GUARDIAN IF THE AIP IS NOT PRESENT; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the absence of the allegedly incapacitated person (AIP) from the proceeding to appoint a guardian pursuant to the Mental Hygiene Law required remittal:

“Guardianship proceedings, as a drastic intervention in a person’s liberty, must adhere to proper procedural standards” … . Pursuant to Mental Hygiene Law § 81.11, where a petition to have a guardian appointed for an AIP has been filed … , “[a] determination that the appointment of a guardian is necessary for a person alleged to be incapacitated shall be made only after a hearing” … . Any party to the proceeding “shall” have the right to present evidence, call witnesses, cross-examine witnesses and be represented by counsel … .

Most importantly, “[t]he hearing must be conducted in the presence of the person alleged to be incapacitated, either at the courthouse or where the person alleged to be incapacitated resides” … , unless the person is outside the state or “all the information before the court clearly establishes that (i) the person alleged to be incapacitated is completely unable to participate in the hearing or (ii) no meaningful participation will result from the person’s presence at the hearing” … . “There is an ‘overarching value in a court having the opportunity to observe, firsthand, the allegedly incapacitated person’ ” … .

Here, the court did not conduct a hearing in the presence of the AIP. Although the court evaluator informed the court that “[a]ll of the parties here right now agree that the AIP needs a guardian,” it is unclear whether that statement by the court evaluator constitutes an agreement by the AIP’s attorney to the court’s determination to appoint a guardian for all of the AIP’s person and property. Regardless, even if we were to deem this a situation where the AIP’s attorney agreed that the AIP consented to the appointment, “a court should not accept counsel’s representation that the AIP has consented to the appointment of a guardian where the AIP is not present” … . “[T]he court must first determine whether the AIP has the requisite capacity to consent, and must then make a finding of the AIP’s agreement to the terms of the guardianship, on the record” … . Matter of Chang v Billie J.C.-W., 2025 NY Slip Op 02446, Fourth Dept 4-25-25

Practice Point: A Mental Hygiene Law guardianship hearing must be held in the presence of the allegedly incapacitated person (AIP) absent proof the AIP cannot meaningfully participate. The judge should be able to observe the AIP.

Practice Point: The AIP’s attorney cannot consent to the appointment of a guardian in the AIP’s absence.

 

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FAILURE TO COMPLY WITH THE EMPLOYER’S DIRECTIVE TO TAKE THE COVID-19 VACCINE JUSTIFIED THE TERMINATION OF PETITIONER’S EMPLOYMENT; THE ARBITRATOR’S RULING TO THAT EFFECT DID NOT VIOLATE PUBLIC POLICY AND WAS NOT IRRATIONAL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, affirmed the arbitrator’s determination petitioner was properly terminated because she refused the COVID-19 vaccine:

… [T]he court “erred in vacating the award on the ground that it was against public policy because petitioners failed to meet their heavy burden to establish that the award in this employer-employee dispute violated public policy” … . We further agree with respondents that the court “erred in vacating the award on the ground that it was irrational” … . ” ‘An award is irrational if there is no proof whatever to justify the award’ … . Where, however, “an arbitrator ‘offer[s] even a barely colorable justification for the outcome reached,’ the arbitration award must be upheld” … . Here, inasmuch as it is undisputed that [the employer] directed petitioner to receive the vaccine by a date certain, that it apprised her that her continued employment was dependent upon her compliance, and that petitioner refused to be vaccinated by the required date, the court erred in concluding that the arbitrator’s award was irrational … . Further, the court was not permitted to vacate the award merely because it believed vacatur would better serve the interest of justice … . Matter of Cooper (Roswell Park Comprehensive Cancer Ctr., 2025 NY Slip Op 02445, Fourth Dept 4-25-25

Practice Point: The arbitrator’s determination petitioner was properly terminated for refusing a COVID-19 vaccination did not violate public policy and was not irrational.

 

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THE FAILURE TO COMPLY WITH THE CONDITIONS PRECEDENT IN CPLR 3216 PRECLUDED DISMSSAL OF THE COMPLAINT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the failure to comply with the requirements of CPLR 3216 precluded the dismissal of the complaint:

… [A]bsent strict compliance with the conditions precedent to dismissal set forth in CPLR 3216 (b) (3), “[n]o dismissal shall be directed” … . Indeed, “[t]he conditions precedent to bringing a motion to dismiss for failure to prosecute under CPLR 3216 must be complied with strictly” … .

Among those conditions precedent are the service of a ninety-day demand to resume prosecution, by registered or certified mail, which specifically states that the failure to file the note of issue within ninety days will serve as a basis for a motion to dismiss for want of prosecution … . Where the ninety-day demand is served by the court, the demand shall also “set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” … .

Here, the court did not serve a ninety-day demand upon plaintiff, and for that reason alone, the court erred in directing dismissal pursuant to CPLR 3216. Even assuming, arguendo, that the court’s second supplemental scheduling order could serve as the substitute for a ninety-day demand, that scheduling order did not indicate that dismissal would result if plaintiff failed to file the note of issue, nor did it set forth the specific conduct constituting plaintiff’s neglect … . “While an order may have the same effect as a valid 90-day demand, that order must advise as to the consequences for failing to comply, i.e., dismissal of the complaint” … , and here, the order wholly failed to do so. Woloszuk v Logan-Young, 2025 NY Slip Op 02444, Fourth Dept 4-25-25

Practice Point: The conditions precedent for dismissal of a complaint in CPRL 3216 must be strictly complied with by the judge or reversal is mandatory.

 

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ALTHOUGH ALL JUSTICES AGREED THE CERTIFICATE OF COMPLIANCE WAS NOT ILLUSORY, THE CONCURRENCE ARGUED THE PEOPLE SHOULD HAVE ASCERTAINED THE NAMES OF WITNESSES CAPTURED ON A VIDEO (FOURTH DEPT).

The Fourth Department determined the People’s certificate of compliance (COC) was not illusory and, therefore, the speedy trial statute was not violated. The concurrence agreed the COC was not illusory, but argued the People should have ascertained and turned over the names of witnesses which were depicted in a video:

… [W]ith respect to defendant’s claim that the People failed to turn over the names and contact information of several witnesses who were depicted on surveillance footage inside the convenience store when defendant was arrested, CPL 245.20 (1) (c) provides in relevant part that the People are required to disclose “[t]he names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto.” The People are not, however, required “to ascertain the existence of witnesses not known to the police or another law enforcement agency” … . The record shows that the People did not know or have in their possession the names of those witnesses with the exception of one witness whose name they learned just prior to the scheduled trial. The court thus properly determined that the People exercised due diligence and made reasonable efforts to ascertain the existence of the discovery materials … .

From the concurrence (Justice Whalen):

I respectfully disagree with the majority’s conclusion that the People had no obligation to make reasonable inquiries to ascertain the names and contact information of several witnesses who were depicted on surveillance footage inside the convenience store when defendant was arrested. Although the People are not required to “ascertain the existence of witnesses” not known to law enforcement … , here the record establishes that, at the time their discovery obligation under CPL article 245 arose, the People possessed knowledge that several of the witnesses depicted on the surveillance footage had “evidence or information relevant to any offense charged” … . Specifically, the People possessed the statements of the store owner and the victim, as well as the police report from the arresting officer, each of which reflects that just prior to defendant’s arrest, the depicted store employees tackled defendant to the ground, locked the door, and waited for police to arrive. Inasmuch as there is no plausible argument that the store employees who held defendant down after an attempted robbery did not “have evidence or information relevant to any offense charged” … , the People were obligated to “make a diligent, good faith effort to ascertain” … the “names and adequate contact information for [those] persons” … . In my opinion, the majority, in concluding otherwise, is conflating the statutory requirement that the People possess knowledge of the “existence of witnesses” … with knowledge of the names of witnesses. People v Burrows, 2025 NY Slip Op 02436, Fourth Dept 4-25-25

Practice Point: The concurrence argued the majority conflated the fact that the People need not ascertain the existence of witnesses they are not aware of with the obligation to ascertain the names of witnesses of which the People are aware.

 

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CONFLICTING EVIDENCE RAISED QUESTIONS OF FACT IN THIS “NEGLIGENT USE OF EXCESSIVE FORCE,” “FALSE ARREST,” AND “UNLAWFUL IMPRISONMENT” ACTION STEMMING FROM THE STREET STOP, SHOOTING AND ARREST OF THE PLAINTIFF; THE DEFENDANT TRANSIT AUTHORITY’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined conflicting evidence precluded summary judgment in this civil action stemming from the street stop and arrest of the plaintiff. Although plaintiff pled guilty, which usually forecloses any argument that the arrest was not supported by probable cause, here evidence submitted the defendant transit authority raised a question of fact about probable cause. The action alleged the negligent use of excessive force (plaintiff was shot through the windshield of his vehicle), false arrest and unlawful imprisonment:

Excessive force claims are evaluated ” ‘under the Fourth Amendment’s “objective reasonableness” standard’ ” … . * * *

“Because of its intensely factual nature, the question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide” … .

” ‘The fact that a person whom a police officer attempts to arrest resists, threatens, or assaults the officer no doubt justifies the officer’s use of some degree of force, but it does not give the officer license to use force without limit. The force used by the officer must be reasonably related to the nature of the resistance and the force used, threatened, or reasonably perceived to be threatened, against the officer’ ” … . …

Though “[t]he existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the [false imprisonment cause of action]” … , the issue of probable cause is “generally a question of fact to be decided by the jury, and should ‘be decided by the court only where there is no real dispute as to the facts or the proper inferences to be drawn surrounding the arrest’ ” … . Thomas v Niagara Frontier Tr. Auth., 2025 NY Slip Op 02433, Fourth Dept 4-25-25

Practice Point: Consult this decision for an analysis of “negligent use of excessive force,” “false arrest,” and “unlawful imprisonment” causes of action at the summary-judgment stage, in the face of conflicting evidence.​

 

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ALTHOUGH THE DEFENDANT’S ATTORNEY AFFIDAVIT DID NOT LAY A PROPER FOUNDATION FOR THE ADMISSIBILITY OF THE ATTACHED DOCUMENTS, THE DOCUMENTS SHOULD NOT HAVE BEEN DEEMED INADMISSIBLE BECAUSE THE PLAINTIFF DID NOT OBJECT TO THEM AND RELIED ON THEM IN OPPOSITION TO DEFENDANT’S MOTION (FIRST DEPT).

The First Department, reversing Supreme Court in this breach of contract action, determined that, although the defendant’s attorney-affidavit did not lay a proper foundation for the admissibility of the attached documents, the documents were admissible because plaintiff never objected to the admissibility of the documents and relied on those documents in opposing defendant’s motion:

Supreme Court improvidently concluded that defendant’s documentary evidence was not admissible for purposes of its motion. An attorney’s affirmation “‘may properly serve as the vehicle for the submission of acceptable attachments which provide evidentiary proof in admissible form, like documentary evidence,’ so long as the [affirmation] ‘constitute[s] a proper foundation for the admission of the records'” … . The court was correct that defendant’s attorney, in her affirmation, did not lay a foundation for the admission of the records, such as her personal knowledge or her certification of the documents as true and complete copies of the originals. However, plaintiff never objected to the admissibility of any of the documents annexed to the attorney’s affirmation … and relied on the same documents in opposition to defendant’s motion … . AWL Indus., Inc. v New York City Hous. Auth., 2025 NY Slip Op 02402, First Dept 4-24-25

Practice Point: An attorney affidavit can be used as a vehicle for the admission of documentary evidence if the affidavit lays a proper foundation.

Practice Point: Here, although the defendant’s attorney affidavit did not lay a proper foundation for the admissibility of the attached documents, the documents were admissible because the plaintiff did not object to them and relied on them in opposition to the defendant’s motion.

 

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THE MAJORITY CONCLUDED THE COURT SHOULD USE ITS AUTHORITY TO DISMISS THE JUVENILE DELINQUENCY PETITION IN THE INTEREST OF JUSTICE, AN EXTRAORDINARY REMEDY WHICH SHOULD BE EMPLOYED SPARINGLY, FACTORS EXPLAINED (THIRD DEPT).

The Third Department, over a concurring decision and an extensive dissent, determined the juvenile delinquency petition should be dismissed in the interest of justice. The concurrence argued the dismissal should be based upon ineffective assistance of counsel. The dissent argued this difficult situation was properly handled:

Although we are mindful that “[d]ismissal in the furtherance of justice is an extraordinary remedy that must be employed sparingly,” it is our opinion that this is one of “those rare cases where there [are] compelling factor[s] which clearly demonstrate[ ] that prosecution [resulted in an] injustice” .. . … [A]ttempted assault in the third degree, a class B misdemeanor, is not serious … . … [T]he DSS caseworker was not seriously injured. * * * … [A]t the time of the attempted assault, respondent was in DSS’ care and custody because her mother was deceased and her grandmother, who subsequently adopted respondent, ultimately surrendered her rights. Respondent has a reportedly low IQ and a history of mental illness which was so severe that Family Court ordered a capacity evaluation … . Indeed, respondent had been brought to the hospital emergency room based on what was legally designed to be a temporary Mental Hygiene Law § 9.41 hold. Respondent remained in what was essentially a lock and key detention in the hospital, mostly in the emergency room, under dubious circumstances for an outrageous period of six months.

… Respondent already had numerous strikes against her, not only her lack of a parent/guardian and her serious mental health challenges, but also a previous juvenile delinquency adjudication. This additional juvenile delinquency finding is a red flag that will undoubtedly hinder opportunities and could cause difficulty for respondent should she seek mental health assistance in the future. Simply put, respondent needs no additional baggage, especially not baggage stemming from a juvenile delinquency petition that was admittedly filed and continued because of the difficulty of placing her in a suitable setting … . Matter of A. WW., 2025 NY Slip Op 02377, Third Dept 4-24-25

Practice Point: Consult this decision for a detailed analysis of an appellate court’s authority under the Family Court Act to dismiss a juvenile delinquency petition “in the interest of justice.”

 

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THE INDUSTRIAL CODE PROVISIONS RELIED UPON BY PLAINTIFF DO NOT APPLY TO A SLIPPERY SUBSTANCE ON A LADDER, REQUIRING THE DISMISSAL OF A LABOR LAW 241(6) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined certain provisions of the Industrial Code did not apply to a slippery substance on a ladder, requiring the dismissal of a Labor Law 241(6) cause of action:

The court should have dismissed the Labor Law § 241 (6) claim … on the basis that the Industrial Code provisions on which plaintiffs rely are inapplicable or abandoned. Industrial Code (12 NYCRR) § 23-1.7 (d) does not apply to this case because the ladder from which plaintiff fell “was not ‘a floor, passageway, walkway, scaffold, platform or other elevated working surface'” … . 12 NYCRR 23-1.7 (e) (1) and (2) do not apply because there is no evidence that Thomas “tripped over any materials, debris or equipment” … . 12 NYCRR 23-1.21 (b) (3) (iv) is limited to structural defects in ladders … and does not apply to the slippery substance on the ladder in this case … . D’Angelo v Legacy Yards Tenant LLC, 2025 NY Slip Op 02409, First Dept 4-24-25

Practice Point: A ladder is not a “floor, passageway, walkway, scaffold, platform or other elevated working surface” within the meaning of the Industrial Code section 12 NYCRR) § 23-1.7 (d).

Practice Point: Industrial Code sections12 NYCRR 23-1.7 (e) (1) and (2) address tripping over “materials, debris or equipment” and does not apply to a slippery substance on a ladder.

Practice Point: Industrial Code section 12 NYCRR 23-1.21 (b) (3) (iv) applies to structural defects in ladders and does not apply to a slippery substance on a ladder.

 

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THE USE OF POST-DISCHARGE AFFIDAVITS FROM TWO JURORS, CLAIMING JUROR CONFUSION, AS THE BASIS FOR THE MOTION TO SET ASIDE THE VERDICT WAS IMPROPER BECAUSE THERE WAS NO SUPPORT FOR THE CLAIMS IN THE RECORD; THE MOTION SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to set aside the jury verdict should not have been granted. The motion was based upon affidavits from two jurors which were drafted after the jury was discharged. There was no support in the record for the claims made in the affidavits:

“It has long been the law that, with narrow exceptions, jury verdicts may not be impeached by probes into the jury’s deliberative process” …. Further, “jurors may not impeach their own verdict unless they have been subjected to outside influence” … . This principle, however, is subject to two exceptions. First, “where an error is made in reporting the verdict, the trial judge may, upon the unanimous affidavits or statements of the jurors, correct the judgment to conform to the actual verdict” … . Second, “where the record demonstrates substantial confusion among the jurors in reaching a verdict, the court must direct a new trial to prevent a miscarriage of justice to the litigants” … . However, “[t]he use of post-discharge juror affidavits to attack the verdict is ‘patently improper’ where the record is devoid of any evidence of external influence, juror confusion, or ministerial error in reporting the verdict” … .

… [Defendant] sought to set aside the jury verdict on the issue of apportionment of liability based upon post-discharge affidavits from two jurors indicating that the jury was confused regarding the apportionment of liability. However, the trial record is devoid of any evidence of juror confusion regarding the issue of apportionment of liability, and thus, the use of post-discharge affidavits from jurors to attack the verdict is patently improper … . Gleneida Med. Care, P.C. v DBG Mgt. Corp., 2025 NY Slip Op 02323, Second Dept 4-23-25

Practice Point: Consult this decision for an explanation of when a jury verdict may be impeached by probing into the jury’s deliberative process.

 

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