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DEFENDANT IN THIS SLIP AND FALL CASE DID NOT PROVE WHEN THE AREA OF THE FALL WAS LAST INSPECTED OR CLEANED; THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION AND WAS NOT ENTITLED TO SUMMARY JUDGMENT; PROOF OF GENERAL CLEANING PRACTICES IS NOT ENOUGH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant in this slip and fall did not demonstrate a lack of constructive notice of the flower petals on the floor which caused plaintiff to slip and fall. Therefore defendant was not entitled to summary judgment. A lack of constructive notice can be demonstrated by proof the area was inspected or cleaned close in time to the fall. Proof of general cleaning practices is not sufficient to raise a question of fact on the issue:

A defendant moving for summary judgment in a slip-and-fall case must establish, prima facie, that it did not create the condition that allegedly caused the fall or have actual or constructive notice of that condition for a sufficient length of time to remedy it … . “To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and remedy it” … . In order to meet its prima facie burden “on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … . “Reference to general cleaning practices is insufficient to establish a lack of constructive notice in the absence of evidence regarding specific cleaning or inspection of the area in question” … .

Here, the defendant failed to demonstrate, prima facie, that it lacked constructive notice of the alleged condition … . The defendant did not submit any evidence with respect to specific cleaning or inspection of the area in question “or any other affirmative proof to demonstrate how long the condition had existed” … . The deposition testimony and affidavit submitted by the defendant as to general cleaning procedures were insufficient to establish lack of constructive notice … . Lisker v Vue Catering, Inc., 2025 NY Slip Op 02196, Second Dept 4-16-25

Practice Point: This genre of reversals appeared monthly for many years. Now these decisions are few and far between. The key issue: to demonstrate a lack of constructive notice of the condition which caused plaintiff’s slip and fall a defendant must prove the area was inspected or cleaned close in time to the fall. Proof of general cleaning schedules is not enough.​

 

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CRIMINAL POSSESSION OF A WEAPON SECOND DEGREE AND CRIMINAL POSSESSION OF A FIREARM ARE INCLUSORY CONCURRENT COUNTS; THE CRIMINAL POSSESSION OF A FIREARM CONVICTION WAS VACATED (SECOND DEPT).

The Second Department, vacating the criminal possession of a firearm conviction, determined criminal possession of a weapon second degree and criminal possession of a firearm are inclusory concurrent counts:

CPL 300.30(4) provides that “[c]oncurrent counts are ‘inclusory’ when the offense charged in one is greater than any of those charged in the others and when the latter are all lesser offenses included within the greater” … . CPL 300.40(3)(b) provides, in relevant part, that with respect to inclusory concurrent counts, “[a] verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted” … . Here, the defendant was convicted of criminal possession of a weapon in the second degree and criminal possession of a firearm (Penal Law §§ 265.03[1][b]; 265.01-b[1]). Because the charge of criminal possession of a weapon in the second degree and the charge of criminal possession of a firearm are inclusory concurrent counts, the conviction of criminal possession of a firearm, as well as the sentence imposed thereon, must be vacated, and that count of the indictment must be dismissed … . People v Walker, 2025 NY Slip Op 02225, Second Dept 4-16-25

Practice Point: Criminal possession of a weapon second degree and criminal possession of a firearm are inclusory concurrent counts requiring vacation of the criminal possession of a firearm conviction.

 

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THE DEFENDANTS DID NOT RAISE A DEFECT IN SERVICE AS AN AFFIRMATIVE DEFENSE; THE JUDGE SHOULD NOT HAVE RAISED THE ISSUE SUA SPONTE AND DISMISSED THE PROCEEDING ON THAT GROUND (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, raised the propriety of service issue and dismissed the proceeding on that ground:

The Supreme Court should not have, sua sponte, dismissed the proceeding/action on the ground of a defect in service. Lack of personal jurisdiction is an affirmative defense that can be waived by, among other things, “appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss” … . “When a defendant participates in a lawsuit on the merits, he or she indicates an intention to submit to the court’s jurisdiction over the action, and by appearing informally in this manner, the defendant confers in personam jurisdiction on the court” … .

Since the respondents did not object to the Supreme Court’s jurisdiction over them in an answer or in their cross-motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the petition/complaint, the court should not have, sua sponte, raised the issue of the propriety of service … . Further, the respondents waived any objection to the propriety of service by appearing in the proceeding/action and cross-moving to dismiss the petition/complaint without raising the defense of lack of personal jurisdiction … . Matter of Weiss v County of Suffolk, 2025 NY Slip Op 02210, Second Dept 4-16-25

Practice Point: Defective service is an affirmative defense which, if not raised by a party, is waived. A judge cannot raise and decide the issue sua sponte.

 

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HOME DEPOT RENTED A TRUCK TO A MAN WHO DROVE THE TRUCK INTO A CROWD OF PEDESTRIANS AND BICYCLISTS; THE COMPLAINT DID NOT STATE A CAUSE OF ACTION FOR NEGLIGENT ENTRUSTMENT; THE MOTION COURT IMPROPERLY TREATED THE MOTION TO DISMISS AS A MOTION FOR SUMMARY JUDGMENT; ALTHOUGH THE ALLEGATIONS IN THE COMPLAINT ARE DEEMED TRUE FOR A MOTION TO DISMISS, HERE THOSE ALLEGATIONS WERE PROPERLY REFUTED BY AFFIDAVITS AND DEPOSITIONS SUBMITTED BY HOME DEPOT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiffs did not state a cause of action for negligent entrustment against defendant Home Depot, which rented a truck to Saipov, referred to in the decision as a “terrorist,”  who drove the truck into a crowd of pedestrians and bicyclists. The First Department noted that the motion court improperly treated the motion to dismiss as a motion for summary judgment. The First Department further noted that, although allegations in the complaint are deemed to be true for analysis of a motion to dismiss, affidavits and other documents submitted by a defendant can properly refute the allegations made in the complaint, and did so here:

… “[F]actual allegations presumed to be true on a motion pursuant to CPLR 3211 may properly be negated by affidavits and documentary evidence” … .

Plaintiffs’ complaints allege that Home Depot negligently entrusted the vehicle to Saipov when it knew or should have known that his use of the pickup truck could be potentially dangerous to others, and that it should have refused to rent it to him. These allegations, even when viewed in the light most favorable to plaintiffs, do not state a cause of action for negligent entrustment. Moreover, documentary evidence as well as deposition testimony submitted by Home Depot conclusively refute these allegations.

… Home Depot established that it did not have “some special knowledge concerning a characteristic or condition peculiar” to Saipov which would render his use of the truck “unreasonably dangerous” … . Grandelli v City of New York, 2025 NY Slip Op 02154, First Dept 4-15-25

Practice Point: On a motion to dismiss, the allegations in the complaint are deemed to be true. However, those allegation can be negated by affidavits, depositions and other documents submitted by a defendant. The submission of such documents does not convert a motion to dismiss to a motion for summary judgment.

 

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CIVIL COURT WHICH AWARDED RENT ARREARS IN THE EVICTION PROCEEDING DID NOT HAVE SUBJECT MATTER JURISDICTION OVER THE CLAIM FOR RENT DUE FOR THE REMAINDER OF THE LEASE (POST-EVICTION); THEREFORE THE ACTION IN SUPREME COURT FOR THE POST-EVICTION RENT AS LIQUIDATED DAMAGES WAS NOT BARRED BY THE DOCTRINE OF RES JUDICATA (FIRST DEPT).

The First Department, reversing Supreme Court, determined the doctrine of res judicata did not apply to this action for rent due as liquidated damages. Although the eviction proceeding in Civil Court awarded defendant the rent arrears, Civil Court did not have subject matter jurisdiction over the claim for the rent due for the remainder of the lease term (post-eviction). Therefore the rent-as-liquidated-damages claim could be brought in Supreme Court:

This action, in which plaintiff seeks the recovery of rent arrears, is not barred by the doctrine of res judicata, as plaintiff could not have sought relief for its current claims in the Civil Court eviction proceeding. Although the rent arrears claim arises out of the same transaction as the claim for future rent … , res judicata is inapplicable where the plaintiff could not seek a particular remedy in the first action because of a limitation on a court’s subject matter jurisdiction, and plaintiff wishes to seek that remedy in the second action … .

The liquidated damages clause in the lease expressly provided that plaintiff was under no duty to mitigate damages by re-letting the premises and further provided that, even if Levant was evicted, it was to remain liable for its monetary obligations under the lease … . However, Civil Court, which determined the eviction proceeding, is “without authority to address a claim for the balance of rent due” as liquidated damages … . Thus, once plaintiff had been awarded judgment in the summary proceeding, the parties’ relationship as landlord and tenant ended and whatever monetary liability Levant may have had to plaintiff at that point “was no longer in the nature of rent, but was in the nature of contract damages” … . Prospect Resources Inc. v Levant Capital N. Am., Inc., 2025 NY Slip Op 02169, First Dept 4-15-25

Practice Point: Here the court which handled the eviction proceedings did not have subject matter jurisdiction over the claim for post-eviction rent as liquidated damages. Therefore the doctrine of res judicata did not preclude the suit for the post-eviction rent in Supreme Court.

 

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IN LAWSUITS AGAINST THE GOLF-COURSE OWNERS, A GOLFER COMPETING IN A TOURNAMENT ASSUMED THE RISK OF BEING STRUCK BY A GOLF BALL WHILE RIDIING IN A GOLF CART ON THE COURSE, BUT A GOLFER DRIVING A GOLF CART TO HER CAR IN THE COURSE PARKING LOT DID NOT ASSUME THE RISK OF A COLLISION WITH A CAR EXITING THE PARKING LOT (CT APP).

The Court of Appeals, affirming one assumption-of-the-risk case and reversing the other, in a full-fledged opinion by Judge Cannataro, determined, in lawsuits against the owners of the golf courses, a golfer assumes the risk of being struck with a golf ball, but does not assume the risk of injury in a collision while driving a golf cart in the course parking lot:

This Court recently reaffirmed that the primary assumption of risk doctrine must be carefully circumscribed so as not to undermine the legislative comparative fault regime applicable to personal injury actions … . In these appeals, we clarify the scope of two important limitations on the doctrine: its inapplicability to unreasonably enhanced risks and its confinement to cases involving participation in athletics and recreation.

On the same day in June 2020, plaintiffs were injured in separate and very different accidents related to the sport of golf. Plaintiff David Katleski was struck by an errant golf ball while competing in a golf tournament. Plaintiff Mary E. Galante was struck by a car in the parking lot of a golf course before she began to play the course. For the reasons that follow, the primary assumption of risk doctrine precludes Katleski’s negligence claim because the risk of being struck by a mishit ball while golfing is inherent in the game and there is no evidence that the design of the course unreasonably enhanced that risk. Galante’s claim must be reinstated, however, because the primary assumption of risk doctrine has no application to a person who was not participating in a protected athletic or recreative activity at the time of their injury. Katleski v Cazenovia Golf Club, Inc., 2025 NY Slip Op 02178, CtApp 4-15-25

Practice Point: In lawsuits against the owners of golf courses: a golfer assumes the risk of being struck by an errant ball while riding in a golf cart on the course; but a golfer does not assume the risk of being struck by a car while driving a golf cart to her car in the course parking lot.

 

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UNLIKE A LEVEL-ONE OR LEVEL-TWO STREET STOP, A LEVEL-THREE STREET STOP JUSTIFIES POLICE PURSUIT, EVEN IF THE REASON FOR THE STOP, HERE AN APPARENT IMPENDING ASSAULT, WAS DISSIPATED BY THE SUSPECT’S FLIGHT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, affirming the appellate division, determined the police were justified in pursuing the defendant after a level three street stop, even though, at the time of the pursuit, the initial reason for the stop, an apparent impending attack on a pedestrian, had dissipated:

We have previously held that an individual’s flight from a level one or two police encounter, without more, does not provide the reasonable suspicion necessary to pursue them (see People v Holmes, 81 NY2d 1056, 1058 [1993]; People v May, 81 NY2d 725, 728 [1992]; see generally People v De Bour 40 NY2d 210 [1976]). We now hold that when a suspect flees during a lawful level three stop founded on reasonable suspicion of criminal activity, police may pursue the suspect.

… At the suppression hearing, Officer Kyle Eisenhauer of the Rochester Police Department testified that, on the night of the arrest, he was in uniform in an unmarked patrol vehicle with his partner, Officer Jeremy Nellist. The two were driving behind a sedan when a woman on the sidewalk threw a glass bottle at the sedan, which then came to a stop in the middle of the street. Defendant exited the driver’s door of the sedan and “in a very aggressive manner” began yelling at the woman and approached her with clenched fists. According to Eisenhauer, “[i]t appeared [that defendant] was . . . about to attack” the woman. Eisenhauer and Nellist exited their patrol car and told defendant to stop, and defendant “stopped and looked in [their] direction.” The uniformed officers were about 25 feet away from defendant without their guns drawn. Defendant “began to back away, and then quickly turned and began digging in the front of his waistband and running” away from the officers, leaving his car in the middle of the street with the driver’s door open. The officers followed in pursuit. * * *

We reject the notion that a suspect can legally flee a level three stop so long as their flight dissipates the reasonable suspicion of the crime that initially gave rise to the stop. People v Cleveland, 2025 NY Slip Op 02144, CtApp 4-15-25

Practice Point: If the police have reasonable suspicion of criminal activity at the time of a level three street stop, they may pursue the fleeing suspect, even if the initial reason for the stop (here an apparent impending assault) is dissipated by the flight. In contrast, flight from a level one or level two street stop does not justify pursuit.

 

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PLAINTIFF, WHO TRIPPED AND FELL WHEN HE STEPPED INTO A LARGE CRACK, ASSUMED THE RISK OF PLAYING CRICKET ON A CITY-OWNED TENNIS COURT WITH AN IRREGULAR SURFACE; COMPLAINT PROPERLY DISMISSED; STRONG DISSENT (CT APP).

The Court of Appeals, affirming the dismissal of the complaint, determined plaintiff assumed the risk of playing cricket on a city tennis court with a cracked surface. Judge Rivera, in an extensive dissenting opinion, argued that there is a question of fact whether the city failed to maintain the tennis court in a reasonably safe condition:

Plaintiff was injured while playing cricket on a tennis court in a park owned by the City of New York when he ran to catch a batted ball and stepped into a large crack in the asphalt. The Appellate Division correctly held that the risks of tripping and falling while playing on an irregular surface are inherent in the game of cricket … . There is no evidence in the record that the irregularity in the playing field—the cracked and uneven surface of the tennis court—unreasonably enhanced the ordinary risk of playing cricket on an irregular surface … . Defendants were therefore entitled to summary judgment dismissing the complaint on the ground that the primary assumption of risk doctrine precludes liability on the part of defendants.

From the dissent:

The primary assumption of risk doctrine does not completely displace a landowner’s traditional duty of care to maintain their premises in a safe condition. Tripping on a fissure that is allegedly the result of years of neglect is not a risk inherent to cricket, or any other sport, and defendants were therefore not entitled to summary judgment on the theory that plaintiff assumed the risk of injury by playing on a deteriorated surface. The majority empowers defendants to escape all accountability for their alleged negligence, which put plaintiff and other park users at risk of serious injury. Maharaj v City of New York, 2025 NY Slip Op 02143, CtApp 4-15-25

Practice Point: Here the assumption of the risk doctrine was deemed to outweigh any obligation on the city’s part to maintain the surface of a tennis court in a safe condition.

 

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CRIMINAL POSSESSION OF STOLEN PROPERTY FOURTH AND FIFTH DEGREE ARE LESSER INCLUDED OFFENSES OF CRIMINAL POSSESSION OF STOLEN PROPERTY THIRD DEGREE; UNAUTHORIZED USE OF A VEHICLE, HOWEVER, IS NOT BECAUSE THE CRIMINAL POSSESSION STATUTE DOES NOT REQUIRE POSSESSION OF A VEHICLE (FIRST DEPT).

The First Department, in this juvenile delinquency proceeding, determined the criminal possession of stolen property fourth and fifth degree convictions should have been vacated as lesser included offenses of criminal possession of stolen property third degree. The court noted that unauthorized use of a vehicle is not a lesser included offense of criminal possession of stolen property because the criminal-possession statute does not require possession of a motor vehicle:

“When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a ‘lesser included offense'” (CPL 1.20[37]). However, appellant’s argument that unauthorized use of a vehicle is a lesser included offense of criminal possession of stolen property is incorrect. It is possible to criminally possess stolen property without also committing, by the same conduct, the crime of unauthorized use of a vehicle, because the criminal possession statute does not require possession of a motor vehicle as the other statute does … . Matter of D.P. 2025 NY Slip Op 02132 First Dept 4-10-25

Practice Point: Consult this decision for some insight into what is, and what is not, a lesser included offense.​

 

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THE JUDGE PRONOUNCED A FELONY SENTENCE WITHOUT AN UPDATED AND COMPLETE PRESENTENCE REPORT; SENTENCE VACATED (FIRST DEPT).

The First Department, vacating defendant’s sentence after his period of incarceration was served but before his postrelease supervision was complete, determined the absence of a complete and updated presentence report invalidated the sentence:

Where a person is convicted of a felony, the court must order a presentence investigation of the defendant and it may not pronounce sentence until it has received a written report of that investigation (CPL 390.20[1] …). The presentence report must be current and contain updated information pertinent to the imposition of a proper sentence … . We hold that the presentence report in this case was inadequate, as it omitted crucial information regarding defendant’s history of trauma, mental health and substance abuse issues and failed to include a victim impact statement, among other things (CPL 390.30). We particularly note that defendant had not been interviewed prior to the report’s issuance and that Probation requested an adjournment of sentencing so that the newly assigned case officer could conduct the investigation.

Defendant, who was not represented by his assigned counsel at sentencing, did not waive his entitlement to a current, updated report by failing to affirmatively object to the presentence report’s sufficiency … . People v Camacho, 2025 NY Slip Op 02136, First Dept 4-10-25

Practice Point: A judge cannot pronounce sentence for a felony before receiving an updated and complete presentence report.

 

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