You are here: / Evidence
, , ,

DEFENDANT DID NOT OPPOSE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION; THE JUDGE SHOULD NOT HAVE DENIED THE MOTION ON AN EVIDENTIARY GROUND NOT RAISED BY THE DEFENDANT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge in this foreclosure action should not have denied plaintiff’s motion for summary judgment on an evidentiary ground which was not raised by the defendant:

Plaintiff … moved for summary judgment, submitting an affirmation by counsel, to which the loan documents were annexed, and an affidavit from the same first vice president, which did not attach the subject loan documents. The affiant attested that defendant failed to make monthly payments and that defendant owed plaintiff $2,302,848.55 through June 15, 2024. He did not attest that he based his knowledge of the default and amount due on his review of any records. Defendant did not oppose plaintiff’s motion.

… Although it is the movant’s burden to establish its entitlement to summary judgment and the failure of the nonmovant to oppose summary judgment does not obviate the movant’s need to establish its prima facie case … , “a court should not examine the admissibility of evidence submitted in support of a motion for summary judgment unless the nonmoving party has specifically raised that issue in its opposition to the motion” … . This is because courts “are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made” … .

On its original motion, plaintiff established its prima facie entitlement to summary judgment by establishing, through the affidavit of a first vice president who was also the loan officer in charge of the loan’s collection and enforcement, the existence of the consolidated note, consolidated mortgage, and the existence and amount of defendant’s default … . Defendant did not oppose the motion and thus did not raise any objections as to the admissibility of plaintiff’s evidence, and the court should not have raised evidentiary objections sua sponte … . Valley Natl. Bank v Community Prot. Church of Co-op City, Inc., 2026 NY Slip Op 00036, First Dept 1-6-25

Practice Point: A judge should not, sua sponte, deny a motion for summary judgment on a ground not raised by the nonmoving party.

 

, ,

THERE WAS NO EVIDENCE DEFENDANT USED DRUGS TO EXCESS AT THE TIME OF THE OFFENSE OR IN THE PAST; THE 15 POINT ASSESSMENT UNDER RISK FACTOR 11 WAS THEREFORE ELIMINATED, REDUCING THE RISK LEVEL FROM THREE TO TWO (SECOND DEPT). ​

The Second Department, reducing the SORA risk assessment from level three to level two, determined the evidence did not support assessing 15 points for using drugs to excess:

“In order to support the assessment of points under risk factor 11, . . . the People must show by clear and convincing evidence that the offender used drugs or alcohol in excess either at the time of the crime or repeatedly in the past” … . Here, the People failed to present clear and convincing evidence that the defendant’s marijuana use on the date of the offense was excessive or “causally linked to the sexual assault” … . The People’s evidence was also insufficient to establish that the defendant used marijuana or other substances in excess repeatedly in the past … . Without the assessment of points under risk factor 11, the defendant’s point total was 100, which is within the range for a presumptive level two designation. People v Gregory, 2025 NY Slip Op 07420, Second Dept 12-31-25

 

, ,

THE PROSECUTOR’S FAILURE TO INSTRUCT THE GRAND JURY ON THE JUSTIFICATION DEFENSE REQUIRED REVERSAL AFTER TRIAL AND DISMISSAL OF THE INDICTMENT (WITHOUT PREJUDICE) (SECOND DEPT).

The Second Department, reversing defendant’s conviction and dismissing the indictment (without prejudice), determined the prosecutor erroneously failed to explain the justification defense to the grand jury. Although defendant had a knife, there was evidence the victim had a gun and was the initial aggressor:

If the District Attorney fails to instruct the grand jury on a defense that would eliminate a needless or unfounded prosecution, the proceeding is defective, mandating dismissal of the indictment (see id. § 210.35[5] …). “‘[A] prosecutor should instruct the [g]rand [j]ury on any complete defense supported by the evidence which has the potential for eliminating a needless or unfounded prosecution'” … . “Where the evidence before the grand jury supports it, the charge on justification must be given” … .

“In determining whether the evidence supports a justification defense, the record must be viewed in the light most favorable to the defendant” … . Here, a surveillance video shown to the grand jury indicated that the defendant approached Graves inside a store while holding a knife. Nevertheless, when viewing the evidence in the light most favorable to the defendant, there is a reasonable view of the evidence that the defendant was not the initial aggressor, Graves pointed a gun at the defendant, the defendant stabbed Graves to defend himself from the imminent use of deadly physical force against him, and the defendant could not safely retreat (see Penal Law § 35.15[2][a] …). People v Mead, 2025 NY Slip Op 07412, Second Dept 12-31-25

Practice Point: Where the evidence viewed in the light most favorable to the defendant satisfies the criteria for a defense to the offense, the prosecutor must so instruct the grand jury. Failure to do so renders the grand jury proceeding defective and the indictment must be dismissed, even after a conviction at trial.

 

, ,

THE JUDGE’S RESTRICTIONS ON THE TESTIMONY OF THE DEFENSE “FALSE CONFESSION” EXPERT, AND THE DENIAL OF DEFENDANT’S REQUEST FOR A “PROMISE BY POLICE” JURY INSTRUCTION REQUIRED A NEW TRIAL (SECOND DEPT).

The Second Department, reversing defendant’s murder conviction and ordering a new trial, determined the judge erroneously restricted the defense false-confession-expert’s testimony and erroneously denied defendant’s request for a “Promise by Police” jury instruction (defendant testified the police made promises to him during the 12-hour interrogation):​

… [T]he court limited the scope of the defendant’s expert’s testimony by precluding the mention of a study by the Innocence Project, which found that of the more than 300 people who had been, at the time, exonerated by DNA, approximately 25% of those people had confessed, and a study conducted at the University of Michigan Law School, where researchers found that of the 1,405 exonerations that took place between 1989 and 2012, 10% of the people had falsely confessed, and people with mental illness or intellectual disability were overrepresented in those who had done so. Here, the court improperly concluded that those studies were not relevant … .

…[T]he studies were relevant to illustrate the risk of false confessions, and specifically, a study related to mental disability is proper in this case where the defendant was found to have an IQ lower then 93% of individuals in his age group. … [T]he court limited the scope of the expert’s testimony as to existing research on false confessions … . The court further compounded this error by denying admission of a portion of the defendant’s expert’s curriculum vitae, ruling, without basis, that the titles of certain articles listed therein would be inappropriate for a jury to see, thereby depriving the jury of information relevant to the credibility and weight of the expert’s testimony … . Moreover, these errors allowed the People’s expert to testify that research in the area of false confessions is scant and that the study of false confessions and the evaluation of psychological vulnerabilities was a “primitive subdiscipline.” … [T]he court also scheduled the trial on a date that the defendant’s expert was not available. Although the use of video recorded testimony is not error, “[l]ive televised testimony is certainly not the equivalent of in-person testimony” … . As such, the jury was able to observe the in-court testimony of the People’s expert, but was only able to observe the defendant’s expert on a television screen, and even that testimony was edited to exclude the aforementioned studies. People v Grigoroff, 2025 NY Slip Op 07400, Second Dept 12-31-25

​Practice Point: Consult this decision for insight into how restrictions placed on an expert’s testimony can create the impression there is little or no support for the expert’s conclusions in the relevant literature. Here, because the defense expert was not allowed to discuss the studies upon which his “false confession” conclusions were based, the People’s expert was able to tell the jury “false confession” research is “scant” and is a “primitive subdiscipline.” In addition, the trial was scheduled when the People’s expert could attend, but the defense expert could not, forcing the defense expert to submit videotaped testimony.

 

, , , ,

WHETHER FAMILY COURT HAD JURISDICTION OVER THIS FAMILY OFFENSE PROCEEDING DEPENDED ON WHETHER THERE WAS AN “INTIMATE RELATIONSHIP” BETWEEN PETITIONER AND RESPONDENT; THE EXISTENCE OF AN “INTIMATE RELATIONSHIP” IS A FACT-INTENSIVE INQUIRY WHICH, WHEN IN DISPUTE, REQUIRES A HEARING; MATTER REMITTED FOR THE HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined the judge should have ordered a hearing to determine whether the respondent had an “intimate relationship” with the petitioner such that a family offense proceeding alleging identify theft could be brought by the petitioner against the respondent. Whether an “intimate relationship” exist is a fact-intensive inquiry and when it is in dispute a hearing should be held:

Family Court’s jurisdiction in family offense proceedings, as defined by Family Ct Act § 812 (1), extends to enumerated offenses occurring between members of the same family or household, including those “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” … . While the statute does not define “intimate relationship,” it expressly excludes casual acquaintances and ordinary social or business associations … . In determining whether an intimate relationship exists, courts consider, among other things, “the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship” … . Additionally, “the relationship should be direct [and] not one based upon a connection with a third party” … . Whether an intimate relationship exists is a fact-intensive inquiry to be resolved on a case-by-case basis … . When the existence of an intimate relationship is in dispute, or the record is insufficient to permit determination as a matter of law, Family Court should conduct a hearing before dismissing the petition for lack of jurisdiction … . Matter of McCarra v Chiaramonte, 2025 NY Slip Op 07352, Third Dept 12-31-25

Practice Point: Family Court has jurisdiction over family offense proceedings involving unrelated parties if there exists an “intimate relationship” between the parties. Determining whether there is an “intimate relationship” is a fact-intensive inquiry usually requires a hearing.

 

, ,

HOSPITAL SECURITY PERSONNEL WENT TO PLAINTIFF’S APARTMENT AND ESCORTED HER TO DEFENDANT HOSPITAL (THE UNDERLYING CIRCUMSTANCES WERE NOT DESCRIBED); PLAINTIFF WON A “FALSE IMPRISONMENT” SUIT AND WAS AWARDED $3.5 MILLION; THE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; PLAINTIFF’S SUBJECTIVE BELIEF SHE COULD NOT LEAVE THE APARTMENT OR THE VEHICLE TRANSPORTING HER TO THE HOSPITAL WAS INSUFFICIENT (SECOND DEPT).

The Second Department, setting aside the $3.5 million verdict, determined the evidence did not support the “false imprisonment” theory of liability. Plaintiff was escorted from her apartment to defendant hospital by hospital security personnel (the underlying circumstances are not explained in the decision). Plaintiff alleged she was confined in her apartment and in the vehicle in which she was taken to the hospital:

“‘A motion pursuant to CPLR 4404(a) to set aside a jury verdict and for judgment as a matter of law will be granted where there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial'” … . “[T]he question of whether a verdict was utterly irrational, entitling a movant to a directed verdict, involves a pure question of law” … . “‘In considering such a motion, the facts must be considered in a light most favorable to the nonmovant'” … .

“To prevail on a cause of action to recover damages for false arrest or false imprisonment, the plaintiff must demonstrate that the defendant intended to confine the plaintiff, that the plaintiff was conscious of the confinement, that the plaintiff did not consent to the confinement, and that the confinement was not privileged” … . * * *

The decedent’s subjective belief that she was confined in her apartment and that the security officers would not leave if asked is insufficient, without more, to establish an intent to confine … . Moreover, a threat to call the police does not constitute “detaining force necessary to establish the tort of false imprisonment” … . In addition, the fact that the decedent testified that the security officers parked their vehicle so as to block the decedent’s driveway is insufficient to establish confinement, absent other evidence that the decedent was incapable of departing by foot … .

… The decedent’s testimony as to her own subjective belief that, once she was in the vehicle, she felt that she “no longer had any rights and that [she] was in custody and . . . imagined what would happen if [she] tried to get out of the car,” is insufficient, without more, to establish an intent to confine … . Dender v North Shore Manhasset Hosp., 2025 NY Slip Op 07378, Second Dept 12-31-25

Practice Point: Consult this decision for an explanation of the criteria for setting aside a verdict awarding damages.

Practice Point: Consult this decision for insight into the proof required to support an allegation of “false imprisonment.”

 

, ,

DEFENDANT LANDLORD’S SUMMARY JUDGMENT MOTION IN THIS SIDEWALK SLIP AND FALL CASE RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANT HAD TRANSFERRED RESPONSIBILITY FOR SNOW AND ICE REMOVAL IN THE AREA OF THE FALL TO PLAINTIFF TENANT AND WHETHER DEFENDANT HAD ACTUAL KNOWLEDGE OF THE RECURRING COLLECTION OF WATER AND ICE IN THE AREA OF THE FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence submitted by defendant landlord in this icy-sidewalk slip and fall case failed to eliminate questions of fact about whether defendant had completely relinquished to the plaintiff responsibility for snow and ice removal in the area of the fall and whether defendant had actual knowledge of the depression in the sidewalk and the formation of ice in the area of the fall:

Here, the evidence submitted by the defendant demonstrated that the defendant lived at the property where the plaintiff’s accident occurred. Additionally, at his deposition, the defendant testified that the garbage cans for both sides of the property, which he maintained, were located on the plaintiff’s side of the property and that he approached the garbage cans several times per week both to place trash in the garbage cans and to bring the garbage cans to the street for collection. Moreover, photographs submitted by the defendant depicting the area where the plaintiff fell demonstrated that the garbage cans were stored within a few feet of that area. Although the lease stated that the plaintiff was responsible for cleaning any accumulated snow from the entryway outside his private entrance, the lease also stated that the defendant was required to provide the plaintiff with a shovel and salt to complete this task. Finally, although the plaintiff testified at his deposition that he took care of snow removal for the area where he fell, his son testified at his deposition that in December 2018, approximately one month before the plaintiff’s accident, the defendant had, on a few occasions, placed salt on ice in that area.

… Although the defendant denied knowing about the condition or having any conversations with the plaintiff about this condition, at his deposition, the plaintiff testified that prior to the accident, he had told the defendant “[f]our to five times” about the allegedly defective section of the side yard walkway, including that ice and snow would accumulate there in the winter. Moreover, several of the photographs submitted by the defendant depicted an accumulation of ice and snow in the allegedly defective area where the plaintiff fell. Yongxi Li v Pei Xing Huang, 2025 NY Slip Op 07432, Second Dept 12-31-25

Practice Point: Consult this slip-and-fall decision for succinct explanations of the law concerning the responsibility for snow and ice removal as between a resident landlord and a tenant, as well as a landlord’s actual knowledge of a recurring dangerous condition.

 

, , , ,

THE PEOPLE AGREED DEFENDANT’S ALLEGATIONS IN THE OMNIBUS MOTION WARRANTED A SUPPRESSION HEARING BUT ARGUED THE ISSUE WAS NOT PRESERVED BECAUSE THE ORDER DENYING A SUPPRESSION HEARING INCLUDED THE PHRASE “WITH LEAVE TO RENEW UPON A SHOWING OF SUFFICIENT FACTUAL ALLEGATIONS” RENDERING THE ORDER NONFINAL AND UNAPPEALABLE; THE FIRST DEPARTMENT NOTED THAT NO OTHER EVIDENCE CAME TO LIGHT WHICH COULD HAVE SUPPORTED A RENEWAL MOTION; THE ORDER WAS THEREFORE DEEMED FINAL AND APPEALABLE (FIRST DEPT).

The First Department, holding defendant’s plea and sentencing in abeyance, remitted the matter for a Mapp/Dunaway hearing to determine whether the seizure of a gun dropped by the defendant was facilitated by unlawful police conduct. In the omnibus motions defendant argued that he dropped the gun as a spontaneous response to the police officers’ approaching and then chasing him without reasonable suspicion. On appeal, the People agreed defendant was entitled to a hearing. The contested issue on appeal was whether the order denying the suppression motion “with leave to renew upon a showing of sufficient factual allegations” rendered the order nonfinal and therefore unappealable. The First Department determined the order was final:

The issue in contention on this appeal is whether the court’s summary denial of defendant’s suppression motion — which ended with the statement that the motion “is denied, with leave to renew upon a showing of sufficient factual allegations” — qualifies as an “order finally denying a motion to suppress evidence” which would preserve the suppression issue for appeal under CPL 710.70(2). While phrases like “leave to renew” or “leave to submit” may be some indicia of a lack of finality under CPL 710.70(2), they do not, standing alone, render a court’s ruling nonfinal. * * *

… [T]he court incorrectly rejected the defendant’s detailed recitation of his suppression theory and there was no further evidence produced by the People that could bolster defendant’s theory on renewal.

Accordingly, we remit to Supreme Court to hold a Mapp/Dunaway hearing. People v Diaby, 2025 NY Slip Op 07343, First Dept 12-30-25

Practice Point: Here the People argued that the order denying a suppression hearing was nonfinal and therefore unappealable because it included the phrase “with leave to renew upon a showing of sufficient factual allegations.” The First Department noted that this was not a case where additional evidence came to light which would have supported renewal and the defendant failed to make a renewal motion. Here no new evidence came to light. The denial of the suppression motion was therefore deemed a final, appealable order.

 

, ,

A CERTIFICATE OF INURANCE NAMING A PARTY AS AN ADDITIONAL INSURED IS EVIDENCE THAT THERE IS A CONTRACT TO THAT EFFECT, BUT IT IS NOT CONCLUSIVE PROOF OF THE EXISTENCE OF A CONTRACT AND WILL NOT SUPPORT SUMMARY JUDGMENT ON THE ISSUE (SECOND DEPT).

The Second Department noted that identifying a party as an additional insured on a certificate of insurance is evidence of a contract naming that party as an additional insured, but only the contract itself constitutes definitive proof of additional-insured status:

“A certificate of insurance is evidence of a contract for insurance, but is not conclusive proof that the contract exists and not, in and of itself, a contract to insure” … . [There was no proof of] a specific agreement … to name [plaintiff] School District as an additional insured. Accordingly, the Supreme Court properly denied that branch of the School District’s motion which was for summary judgment declaring that One Beacon is obligated to defend and indemnify it as an additional insured in the underlying action … . Island Trees Union Free Sch. Dist. v A 1 Constr. Serv., Inc, 2025 NY Slip Op 07289, Second Dept 12-24-25

Practice Point: A certificate of insurance naming a party as an additional insured is evidence there is a contract to that effect, but, without the contract, the certificate will not support summary judgment on the issue.​

 

, , , , ,

IN THIS CHILD VICTIMS ACT CASE, DEFENDANT COUNTY, WHICH HAD ASSUMED CUSTODY OF PLAINTIFF FOSTER CHILD, PLACED PLAINTIFF IN DEFENDANT SCHOOL WHERE SHE ALLEGEDLY WAS SEXUALLY ABUSED BY A TEACHER DAILY FOR SIX MONTHS; THE ALLEGED FREQUENCY OF THE ABUSE RAISED A QUESTION OF FACT WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF IT (SECOND DEPT).

he Second Department, reversing Supreme Court, determined this Child Victims Act (CPLR 214-g) action against the county and a school should not have been dismissed. The county had assumed custody over plaintiff, a foster child, and placed her in defendant school. Plaintiff alleged she was sexually abused by a teacher daily for six months. The alleged frequency of the abuse raised a question of fact whether defendants should have known of the abuse (constructive notice):

“By assuming legal custody over [a] foster child, the applicable government official steps in as the sole legal authority responsible for determining who has daily control over the child’s life” … . Therefore, “a municipality owes a duty to a foster child over whom it has assumed legal custody to guard the child from foreseeable risks of harm arising from the child’s placement with the municipality’s choice of foster [home]” … . “In order to find that a child care agency breached its duty to adequately supervise the children entrusted to its care, a plaintiff must establish that the agency had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . “Where the complaint alleges negligent supervision due to injuries related to an individual’s [*2]intentional acts, the plaintiff generally must allege that the entity knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable” … . M.F. v Putnam County, 2025 NY Slip Op 07283, Second Dept 12-24-25

Practice Point: In Child Victims Act cases alleging sexual abuse by a teacher, courts are finding that allegations of frequent abuse raise a question of fact about whether defendants should have been aware of it.

 

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