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THE JUDGE’S ERROR IN REFUSING TO GRANT A BRIEF ADJOURNMENT WHEN THE PEOPLE BELATEDLY OFFERED A REBUTTAL WITNESS HAD A “SPILL-OVER-EFFECT” TAINTING THE OTHER COUNTS; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined (1) the court erred in not granting the defense an adjournment when the People belatedly offered rebuttal testimony, and (2) the “spill-over-effect” of that error tainted the convictions:

The trial court may, in the exercise of its discretion, receive belatedly disclosed rebuttal testimony, ” ‘but before doing so, it must, upon application of the … . We therefore conclude that County Court erred when, after granting the prosecution’s request to offer rebuttal proof on Monday, it then denied defendant’s application for any adjournment before the prosecution called its rebuttal witness … . Given that proof of defendant’s guilt without the rebuttal witness’ testimony was “not overwhelming,” the error cannot be deemed harmless … .

In determining whether an error in the proceedings relating to one count requires reversal of the conviction of other jointly tried counts, we apply “[s]pillover analysis” and evaluate “the individual facts of the case, the nature of the error and its potential for prejudicial impact on the over-all outcome” … . “[I]f there is a reasonable possibility that the jury’s decision to convict on the tainted counts influenced its guilty verdict on the remaining counts in a meaningful way,” reversal is required (id. [internal quotation marks and citations omitted]). Because resolution of all three counts here hinged on the jury’s assessment of the victims’ credibility and the veracity of the defense claims, there is a reasonable possibility that the decimation of defendant’s alibi by the rebuttal evidence meaningfully influenced the jury’s guilty verdict on the 2018 count … . The rebuttal proof, received without affording defendant a brief adjournment to investigate, cast defendant’s alibi witness as unscrupulous and incredible. Under these unusual circumstances, we reverse defendant’s convictions and order a new trial on all counts … . People v Shaver, 2026 NY Slip Op 02895, Second Dept 5-7-26

Practice Point: An error affecting the proof of one count may have a “spill-over-effect” and taint the remaining counts, requiring a new trial.

 

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THE STORM-IN-PROGRESS RULE DOES NOT APPLY TO WATER INSIDE A BUILDING TRACKED IN DURING A RAIN STORM (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Taylor, clarified and reiterated the principle that the storm-in-progress rule does not apply to tracked-in water inside a building:

… [T]his Court has not expanded the storm in progress rule to include hazards that have been tracked-in to interior spaces … , and we decline [defendant property owner’s] invitation to do so. A property owner’s efforts to remove tracked-in hazards during an ongoing storm are simply not subject to the same exigencies as when removing exterior hazards. In other words, removing tracked-in hazards during an ongoing storm is not a fruitless endeavor, and therefore the suspension of a property owner’s duty of care with respect to such hazards is not justified.

Rather, tracked-in conditions from a storm in progress are to be treated by the principles governing premises liability generally … . Rowland v Brooklyn Hosp. Ctr., 2026 NY Slip Op 02861, Second Dept 5-6-26

Practice Point: The storm-in-progress rule does not apply to water inside a building tracked in during a rain storm.​

 

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IN THIS SLIP AND FALL CASE, DEFENDANTS DID NOT DEMONSTRATE THE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW; CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this sidewalk slip and fall case, determined defendants did not demonstrate the defect was trivial as a matter of law:

In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, including the “‘width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury'” … . There is no “minimal dimension test” or “per se rule” that the condition must be of a certain height or depth in order to be actionable … . Photographs that “‘are acknowledged to fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable'” … . When “deciding in a given case whether photographs may sufficiently show triviality without objective measurement, it depends on what the photographs depict” … . The “persuasiveness of photographs will depend on what reasonable inferences regarding the alleged defect may be drawn from them” … .

Here, the evidence submitted by the defendants, including, among other things, a transcript of the plaintiff’s deposition testimony and photographs of the allegedly defective sidewalk condition, was insufficient to establish, prima facie, that the height differential was physically insignificant and that the characteristics of the defect or the surrounding circumstances did not increase the risks the alleged defect posed … . The evidence submitted did not include objective measurements of the dimensions of the defect, specifically, the height of the allegedly misleveled portion of the sidewalk. The evidence further failed to sufficiently quantify or estimate the dimensions of the defect. The plaintiff identified the photographs as fairly and accurately representing the allegedly defective sidewalk condition as it existed on the date of the accident. While the photographs demonstrated the irregular nature of the sidewalk … , it is impossible to ascertain or reasonably infer the extent of the defect from the photographs submitted … . Rosario v Wyckoff Supermarket Assoc., Inc., 2026 NY Slip Op 02860, Second Dept 5-6-26

Practice Point: Consult this decision for insight into the evidence required to demonstrate a sidewalk defect is trivial where no measurements are submitted in support of the summary judgment motion.

 

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DEFENDANT WAS NOT ENTITLED TO VACATION OF HIS CONVICTIONS ON THE GROUND THE COUNTS WHICH WERE DISMISSED AT TRIAL HAD A PREJUDICIAL “SPILL-OVER-EFFECT” ON THE REMAINING COUNTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction under a “prejudicial-spill-over-effect” theory should not have been granted. Defendant argued the counts which were dismissed at trial had tainted the counts for which he was convicted:​

“Whether an error in the proceedings relating to one count requires reversal of convictions on other jointly tried counts is a question that can only be resolved on a case-by-case basis, with due regard for the individual facts of the case, the nature of the error and its potential for prejudicial impact on the over-all outcome” … . “[T]he paramount consideration in assessing potential spillover error is whether there is a reasonable possibility that the jury’s decision to convict on the tainted counts influenced its guilty verdict on the remaining counts in a meaningful way” … . “By contrast, where the jury’s decision to convict on the tainted counts had only a tangential effect on its decision to convict on the remaining counts, no reversal is warranted” … . “Spillover analysis is highly case-specific,” requiring an evaluation of “the individual facts of the case, the nature of the error and its potential for prejudicial impact on the over-all outcome” … . * * *

… [U]nder the circumstances of this case, there was no reasonable possibility that the evidence supporting the tainted counts pertaining to the robbery on November 27, 1995, had a spillover effect on the other counts … . As the jury’s decision to convict on the tainted counts had, at most, a tangential effect upon its decision to convict on the remaining counts pursuant to the robbery on November 13, 1995, vacatur of the defendant’s convictions related to the robbery on November 13, 1995, was unwarranted on the ground of spillover prejudice … . People v Breland, 2026 NY Slip Op 02848, First Dept 5-6-26

Practice Point: Consult this decision for insight into the argument that the counts on which defendant was convicted were tainted by the counts which were dismissed at trial.

 

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THE EDUCATION LAW PRIVILEGE WHICH PROTECTS HOSPITAL QUALITY-REVIEW PROCEEDINGS DID NOT APPLY TO REPORTS ABOUT UNSAFE WORKING CONDITIONS AT THE HOSPITAL; PLAINTIFF IN THIS WRONGFUL TERMINATION ACTION WAS ENTITLED TO DISCOVERY OF THE REPORTS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff in this wrongful termination and retaliation action was entitled to discovery of so-called RL6 reports addressing unsafe working conditions. Defendant hospital claimed the documents were privileged under Education Law § 6527 (3) and the Patient Safety and Quality Improvement Act of 2005 (42 USC § 299b-21 et seq. [hereinafter PSQIA]):

Plaintiff was employed as a nursing assistant and technician within defendant’s secure unit for patients with behavioral health and psychiatric conditions. He commenced this action for wrongful termination and retaliation under Labor Law §§ 740 and 741, claiming that defendant unlawfully fired him after he reported unsafe workplace practices and conditions. During discovery, plaintiff demanded copies of his statements to defendant, including his June 2022 report of safety concerns submitted to defendant’s electronic reporting system. Plaintiff also requested the parties’ communications about the secure unit and defendant’s responses to prior related complaints or concerns. * * *

“[A] party does not obtain the protection of Education Law § 6527 (3) merely because the information sought could have been obtained during the course of a hospital review proceeding[.] . . . The exemption applies only where the information was in fact so obtained” … . In short, the administrator’s conclusory affidavit is insufficient to satisfy defendant’s burden under Education Law § 6527 (3) … . Moreover, defendant conceded, both in its brief and at oral argument, that the RL6 reports were not submitted to a quality assurance or peer review committee. …

Assuming, without deciding, the doubtful proposition that PSQIA applies to this state law claim, defendant failed to demonstrate that the RL6 reports at issue constitute privileged patient safety work product. Adams v Bassett Healthcare Network, 2026 NY Slip Op 02706, Third Dept 4-30-26

Practice Point: Consult this decision for insight into the scope of the Education Law privilege protecting hospital quality-review proceedings. Here the privilege did not extend to employee reports about unsafe working conditions.

 

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IN A REAR-END COLLISION CASE, IN ORDER TO RAISE A QUESTION OF FACT ABOUT WHETHER BRAKE-FAILURE WAS THE CAUSE, THE DEFENDANT MUST DEMONSTRATE THE FAILURE WAS UNANTICIPATED AND REASONABLE CARE WAS TAKEN TO KEEP THE BRAKES IN GOOD WORKING ORDER; NOT THE CASE HERE; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end traffic accident case should have been granted. Defendants’ claim that the brakes failed did not raise a question of fact:

… [A] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision to rebut the inference of negligence” … . “A nonnegligent explanation may include a mechanical failure, a sudden, unexplained stop of the vehicle ahead, an unavoidable skidding on wet pavement, or any other reasonable cause” … . Where the defendants lay the blame for the accident on brake failure, it is incumbent upon them to show that the brake failure was unanticipated and that reasonable care was exercised to keep the brakes in good working order … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting his affidavit wherein he averred that his vehicle had been stopped for approximately 10 seconds for a red traffic light when it was struck in the rear by the defendants’ vehicle … . In opposition, the defendants failed to raise a triable issue of fact as to whether the alleged brake failure was unanticipated and whether reasonable care was exercised to keep the brakes in good working order … . Wesa v Consolidated Bus Tr., Inc., 2026 NY Slip Op 02690, Second Dept 4-29-26

Practice Point: Where a defendant in a rear-end collision case claims brake failure was the cause, in order to survive summary judgment defendant must demonstrate the failure was unanticipated and reasonable care had been taken to keep the brakes in good working order.

 

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THE EXPERT TESTIMONY OFFERED TO DEMONSTRATE A CAUSAL RELATIONSHIP BETWEEN LOW-BIRTH-WEIGHT AND AUTISM SHOULD HAVE BEEN PRECLUDED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the plaintiffs’ verdict in this medical malpractice action and ordering a new trial, determined the expert testimony offered to demonstrate low-birth-weight has a causal relationship with autism should have been precluded:

There was no testimony at the Frye hearing that any of the studies Rubenstein [plaintiffs’ expert] relied upon concluded that premature birth causes autism. Rather, Rubenstein’s testimony established that the exact mechanism of how autism develops is unknown and that studies found a causal inference or association between prematurity and autism, not a causal relationship. Further, there was no testimony elicited at the Frye hearing that demonstrated that the medical community, specifically pediatric neurologists, have accepted that prematurity causes autism or even that a child’s birth at 25 weeks versus 27 weeks increases that child’s risk of later being diagnosed with autism. In any event, the gap between the statistical analysis relied upon by Rubenstein regarding the prevalence of autism in preterm, low-birth-weight infants and his testimony that the pathophysiology and causes of autism are unknown was too great to allow him to opine as to his theory of causation in this action. Based upon the foregoing, the Supreme Court erred in denying that branch of the defendants’ motion which was to preclude Rubenstein’s testimony on this theory of causation. Terehoff v Frenkel, 2026 NY Slip Op 02688, Second Dept 4-29-26

Practice Point: Consult this decision for insight into when observational studies will not support an expert’s testimony about causation. Here the testimony purporting to link low-birth-weight to autism should have been precluded.

 

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PLAINTIFF DID NOT PROVE THE RPAPL 1304 NOTICE OF FORECLOSURE WAS PROPERTY MAILED TO DEFENDANT; THE MAILING WAS DONE BY A THIRD PARTY AND NO FIRST-HAND KNOWLEDGE OF THE THIRD-PARTY’S MAILING PROCEDURE WAS PRESENTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the plaintiff in this foreclosure action did not demonstrate the RPAPL 1304 notice of foreclosure was properly mailed to defendant. The mailing was done by a third-party and no first-hand evidence of that party’s mailing procedure was presented:

… [T]he affiant did not attest that she was familiar with the standard office mailing procedures of Covius Services, LLC, the third-party vendor that sent the RPAPL 1303 and 1304 notices on behalf of plaintiff. The affidavit therefore did not establish proof of a standard office mailing procedure designed to ensure that items were properly addressed and mailed … . The affidavit also did not address the nature of plaintiff’s relationship with Covius, nor did it address whether Covius’s records were incorporated into plaintiff’s own records or routinely relied upon in plaintiff’s business … . Thus, under the circumstances presented, the tracking numbers on the copies of the 90-day notices did not by themselves suffice to establish proper mailing under RPAPL 1304 … . Wells Fargo Bank, N.A. v Merino, 2026 NY Slip Op 02616, First Dept 4-28-26

Practice Point: If the mailing of the RPAPL 1304 notice of foreclosure is done by a third-party, first-hand knowledge of that party’s mailing procedure must be presented.​

 

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IN A MEDICAL MALPRACTICE TRIAL, THE “ERROR IN JUDGMENT” JURY INSTRUCTION IS ONLY APPROPRIATE WHERE A PHYSICIAN IS CONFRONTED WITH SEVERAL MEDICALLY ACCEPTABLE TREATMENTS AND CHOOSES ONE; HERE IT WAS ALLEGED DEFENDANT MISREAD AN X-RAY; GIVING THE “ERROR IN JUDGMENT” INSTRUCTION WAS REVERSIBLE ERROR (FOURTH DEPT). ​

The Fourth Department, ordering a new trial in this medical malpractice case, determined the judge should not have given the jury an “error in judgment” jury instruction. The complaint alleged defendant physician failed to notice an abnormality in a lung X-ray. The “error in judgment” instruction is only appropriate when a physician is confronted with several medically acceptable treatments and chooses one, not the case here:

“[A]n error [in] judgment charge is appropriate in a case where a doctor is confronted with several alternatives and, in determining appropriate treatment to be rendered, exercises [their] judgment by following one course of action in lieu of another” … . However, such a charge should be given “only in a narrow category of medical malpractice cases in which there is evidence that [the] defendant physician considered and chose among several medically acceptable treatment alternatives” … . An error in judgment charge is not warranted where, as here, there was no evidence introduced at trial that the defendant physician “made a choice between or among medically acceptable alternatives” … , and the “plaintiffs’ [sole] theory of [the] defendant’s alleged malpractice ar[ose] from [the] defendant’s alleged lack of due care in assessing [the] plaintiff’s condition,” inasmuch as “the [sole] issue before the jury was [then] whether [the] defendant’s failure to diagnose [the] plaintiff’s [condition] constituted a deviation from medically accepted standards of care” … . Inasmuch as the error in judgment charge here “create[d] a risk that [the] jury w[ould] find that, because [Sobieraj] exercised his . . . best judgment, there can be no liability despite a failure to adhere to generally accepted standards of care,” we conclude that the court’s error in giving the charge cannot be deemed harmless … , and plaintiffs are thus entitled to a new trial.  Burns v Sobieraj, 2026 NY Slip Op 02537, Fourth Dept 4-24-26

Practice Point: In a medical malpractice action, the “error in judgment” jury instruction is only appropriate where there evidence of more than one appropriate treatment and the physician chooses one. It was reversible error to give the instruction where it was alleged the defendant misread an X-ray.

 

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ALTHOUGH THE DEFENDANT COULD HAVE BEEN ARRESTED AT THE TIME OF THE SEARCH OF HIS PERSON, HE WAS NOT, IN FACT, UNDER ARREST; THEREFORE THE KEY FOB AND THE FIREARM FOUND IN DEFENDANT’S VEHICLE SHOULD HAVE BEEN SUPPRESSED; AN APPELLATE COURT CANNOT AFFIRM ON ANY ALTERNATIVE BASIS (FOURTH DEPT).

The Fourth Department, suppressing the firearm found in defendants vehicle, determined the search of defendant’s person, during the key fob for the vehicle was seized, was not a valid search incident to arrest. Although there may have existed probable cause to arrest defendant at the time of the search, the defendant had not yet, in fact, been arrested:

Even assuming, arguendo, that either the investigator or the searching officer could have arrested defendant prior to or contemporaneously with the search of his person, we note that “[a] search must be incident to an actual arrest, not just to probable cause that might have led to an arrest, but did not” … . A lawful search incident to arrest “requires proof that, at the time of the search, an arrest has already occurred or is about to occur” … . The search must be “substantially contemporaneous” to an actual arrest “so as to constitute one event” … . Under the circumstances of this case, we conclude that there was no actual arrest of defendant justifying the search, inasmuch as the only officer who was purported to have actually placed defendant under arrest prior to or contemporaneously with the search explicitly informed defendant that he was not under arrest at that time … . The court upheld the search as a lawful search incident to an arrest, and thus we are precluded from affirming on any alternative basis … . People v Moore, 2026 NY Slip Op 02508, Fourth Dept 4-24-26

Practice Point: If a search of defendant’s person is justified as a search incident to arrest, the defendant must, in fact, be arrested before the search.

Practice Point: Here the motion court upheld the search as a search incident to arrest; the appellate court cannot affirm on any alternative ground.

 

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