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TO STATE A MERITORIOUS CLAIM AGAINST THE STATE IN THE COURT OF CLAIMS, CLAIMANT NEED NOT MAKE OUT A PRIMA FACIE CASE; IT IS ENOUGH THAT THE CLAIM HAS THE APPEARANCE OF MERIT; HERE CLAIMANT’S APPLICATION FOR PERMISSION TO FILE A LATE CLAIM SHOULD HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing the Court of Claims, determined claimant’s application for permission to file a late claim should have been granted. The Court of Claims found that claimant did not demonstrate a meritorious claim. The Fourth Department explained that a claimant need not make out a prima facie case at this stage. If the claim is not patently groundless, frivolous or legally defective it should be deemed meritorious:

… [W]hile being treated in the inpatient psychiatric unit at Upstate, she was restrained by security officers and nurses because she was engaging in self-harm or had refused medication and injection. According to claimant, security officers escorted her to a seclusion room and forcefully pinned her down, with several security officers lying on top of her while her left arm was underneath her body. Claimant’s medical records confirmed that four security officers and two nurses were involved in the restraining incident. Claimant allegedly screamed out in pain, and a nurse told the security officers to get off of her. Consistent with claimant’s allegations, the medical records establish that, as a result of the incident, claimant suffered a dislocated left elbow, which first required a closed reduction under sedation and placement of a cast and later required surgery under general anesthesia to correct the recurrent instability in her elbow and a complete tear of the ligament complex.

… [T]he evidence presented by claimant in support of the application demonstrates that the security officers and nurses may have caused her injuries, as she alleges, by negligently applying excessive force while attempting to restrain her … . Further, contrary to the State’s assertion, to the extent that Upstate’s account of the incident in the medical records suggests that claimant somehow dislocated her own elbow, that notation created at most a factual issue with respect to causation … . Consequently, on this record, it cannot be said that “the claim raised is patently groundless, frivolous or legally defective” … . … [C]aimant’s submissions on the application are sufficient, at this stage in the proceedings, to demonstrate that there appears to be merit to her claim within the meaning of Court of Claims Act § 10 (6) … . Viola v SUNY Upstate Univ. Hosp., 2026 NY Slip Op 04604, Fourth Dept 7-24-26

Practice Point: In seeking permission to make a late claim in the Court of Claims, claimant need not make out a prima facie case. It is enough that the claim has the appearance of merit, i.e., that it is not patently groundless, frivolous or legally defective.

 

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THE DERIVATIVE NEGLECT FINDING WAS BASED ON A PRIOR FINDING MOTHER NEGLECTED THREE OLDER CHILDREN; BUT THE CONDUCT WHICH WAS THE BASIS OF THE PRIOR NEGLECT FINDING WAS NOT DESCRIBED IN THE MOTION PAPERS; THE BURDEN OF PROOF, THEREFORE, NEVER SHIFTED TO MOTHER AND THE MOTION SHOULD HAVE BEEN DENIED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the burden never shifted to mother in this derivative neglect proceeding. The derivative neglect finding was based upon a prior finding mother neglected three older children. But the order in that case did not describe the conduct that resulted in the “Inadequate guardianship” finding:

… [W]e conclude that the court erred in granting the motion because petitioner’s submissions did not satisfy its initial burden to show that the subject child was derivatively neglected … . To the extent that petitioner relied on the court’s prior order of disposition finding that the mother had neglected the three older children as the basis to support a finding of derivative neglect with respect to the subject child, we note that the prior order merely states that she neglected the older children through “[i]nadequate guardianship, thus placing the children at risk of harm.” Inasmuch as the prior order did not identify what conduct by the mother had been substantiated for purposes of making the “inadequate guardianship” finding with respect to the three older children, petitioner did not establish the egregiousness of that conduct or show that, with respect to the subject child, the potential harmful result of that conduct could be said to reasonably still exist … . In other words, the evidence supplied by petitioner did not establish, as a matter of law, the nature of the mother’s conduct that supported the prior finding of neglect or its surrounding circumstances … . Matter of Ty’Shawn B., 2026 NY Slip Op 04694, Fourth Dept 7-24-26

Practice Point: A motion for summary judgment seeking a derivative neglect finding cannot merely mention a prior “inadequate guardianship” finding regarding mother’s other children with no description of the underlying conduct. The moving papers must demonstrate egregious conduct which is ongoing.

 

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AT THE SUPPRESSION HEARING THE ARRESTING OFFICER TESTIFIED HIS PARTNER TOLD HIM THERE WAS PROBABLE CAUSE TO ARREST AFTER HIS PARTNER SPOKE TO THE DRIVER; THE DEFENSE CHALLENGED THE INFORMATION IMPARTED BY THE DRIVER TO THE PARTNER UNDER THE FELLOW OFFICER RULE; BECAUSE NO EVIDENCE WAS PRESENTED TO DEMONSTRATE THE PARTNER HAD THE REQUISITE LEVEL OF SUSPICION, SUPPRESSION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the denial of defendant’s suppression motion, determined the People did not present evidence at the suppression hearing justifying handcuffing the defendant after a “tinted windows” traffic stop. The officer who testified at the hearing said his partner told him there was probable cause but he was not aware of what the driver told his partner. Because the defense challenged the information under the fellow officer rule, the People were required to demonstrate the officer who spoke with the driver had the requisite level of suspicion, but no evidence on that issue was presented:

We agree with defendant that, under these circumstances, by placing him in handcuffs after directing him to exit the vehicle, the troopers transformed the traffic stop into, at minimum, a “forcible stop and detention” … , which “must be justified by some additional circumstances, such as a threat of evasive conduct . . . ; a need to transport the defendant for a showup procedure . . . ; a fear that the suspect may interfere with the execution of a search warrant . . . ; or a concern for officer safety” … .

Although … the Trooper testified that he observed an “orange pill bottle with no markings on it in the center console of the vehicle,” that alone is insufficient to justify the forcible stop and detention … . The Trooper conceded that he could not see inside the bottle and did not know what was inside. He also did not observe any other indicia of criminality and did not see defendant acting in a suspicious manner. Although a conversation took place between the Trooper and his partner, defendant challenged that information under the fellow officer rule. The People were thus required to establish at the hearing that the partner, who imparted information to the Trooper, in fact possessed the requisite level of suspicion to act … . Here, however, the Trooper’s partner did not testify, and the Trooper testified that his partner did not relay the substance of the conversation with the driver to him. We are therefore unable to infer that the Trooper received information sufficient to justify his subsequent actions … . People v Purrier, 2026 NY Slip Op 04681, Fourth Dept 7-24-26

Practice Point: This case presents another example of a defense challenge to information passed from one police officer to another in the context of a probable-cause determination at a suppression hearing. The officer who testified at the hearing relied on information from his partner who told him there was probable cause to arrest after the partner spoke with the driver.  Because of the challenge under the fellow officer rule, the People were required to demonstrate the partner had the requisite level of suspicion after speaking with the driver, but the People presented no testimony on that issue.

 

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THE DEFENSE SPECIFICALLY CHALLENGED THE RELIABILITY OF THE IDENTIFICATION OF THE DEFENDANT WHICH WAS RELAYED TO THE POLICE BY A CIVILIAN PROPERTY OWNER; THE PEOPLE FAILED TO ESTABLISH THE IDENTIFICATION WAS BASED UPON THE PROPERTY OWNER’S PERSONAL KNOWLEDGE, AS OPPOSED TO SPECULATION; SUPPRESSION GRANTED AND INDICTMENT DISMISSED (FOURTH DEPT). ​

The Fourth Department determined the People did not establish the legality of the defendant’s arrest, granted suppression and dismissed the indictment. The defendant specifically challenged the reliability of the identification of the defendant by a civilian property owner. The People failed to demonstrate the civilian’s identification was based upon personal knowledge as opposed to speculation:

The first officer testified that the civilian property owner had identified defendant in the video as the shooter and that she had reported having interacted with him more than 100 times.

We conclude that the civilian’s basis of knowledge was not established at the hearing. “The ‘basis-of-knowledge’ prong of the test may be satisfied upon a showing that the information furnished is so detailed as to make it clear that it must have been based upon personal knowledge” … . “The basis of knowledge component . . . requires that the information provided by the informant be corroborated orthrough details sufficient in number and suggestive of, or directly related to, the criminal activity informed about” … . Although the first officer testified that the civilian property owner had previously had more than 100 interactions with defendant, the record reflects that the level of detail needed to enable the court to determine whether her identification of defendant was “more than mere speculation” is lacking … . Notably, the People never offered the supporting deposition or the video of the underlying incident at the suppression hearing, and the hearing testimony failed to provide the requisite evidence of the civilian’s “own description of underlying circumstances personally observed” … . Although police observations can provide the corroborating details required to allow a court to properly infer a basis of knowledge, no such details were offered at the hearing … . As an example, the first officer testified that he had observed defendant “half a dozen times or so” prior to defendant’s arrest, but that he could not identify defendant in the video “because the video was grainy.” As another example, the court asked the first officer, “Did [the third officer] relay to you that he had had any prior involvement with [defendant]?,” to which the first officer responded, “I did not ask him.” As a result of the lack of detail, the court was relegated to reliance upon the first officer’s conclusory statement—provided to him by the civilian property owner—that defendant was the shooter in the underlying incident—”in order to determine the reliability of the information claimed to have established probable cause” … . People v Asbury, 2026 NY Slip Op 04617, Fourth Dept 7-24-26

Practice Point: Where the police rely on information provided to them by other officers, a computer database, civilians, etc,, for probable cause, if the defense specifically challenges the reliability of the source of the information the People must demonstrate its reliability at the suppression hearing. Here the police relied on an identification of the defendant by a civilian property owner who was shown a video. The basis of the property owner’s knowledge was not demonstrated at the suppression hearing and the indictment was dismissed on appeal.

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THE POLICE HAD PROBABLE CAUSE TO ARREST THE DEFENDANT, WITHOUT A WARRANT, THREE DAYS AFTER THE SHOOTING, BASED UPON THEIR INVESTIGATION WHICH INCLUDED VIEWING VIDEO SURVEILLANCE TAPES; AN ARREST IN A PUBLIC HALLWAY OF AN APARTMENT BUILDING DOES NOT VIOLATE “PAYTON;” TWO DISSENTERS WOULD HAVE AFFIRMED COUNTY COURT’S RULING THAT THE POLICE DID NOT HAVE PROBABLE CAUSE (FOURTH DEPT).

The Fourth Department, reversing County Court’s suppression of a handgun, over a two-justice dissent, determined the police had probable cause to arrest the defendant without a warrant based upon video evidence showing the defendant entering the victim’s apartment with the victim, showing the defendant leaving the apartment and demonstrating no one else entered the apartment during the relevant period of time (when the victim was shot).. County Court’s ruling that the arrest in the common hallway of an apartment building was a Payton violation was rejected because the defendant had no expectation of privacy there:

The police “may arrest a person without a warrant when [they] ha[ve] probable cause to believe that such person has committed a crime” … . “Probable cause ‘does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been . . . committed’ by the person arrested” … . “When determining whether the police had probable cause to arrest, the inquiry is not as to [the person’s] guilt but as to the sufficiency for arrest purposes of the grounds for the arresting officer’s belief that [the person] was guilty” … . “[T]he basis for such a belief must not only be reasonable, but it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator” … . ” ‘[T]he legal conclusion [as to whether probable cause existed] is to be made after considering all of the facts and circumstances together’ ” … . “A synoptic evaluation is essential because ‘[v]iewed singly, these may not be persuasive, yet when viewed together the puzzle may fit and probable cause found’ ” … .

… [O]n January 24, 2024, the tenant who actually rented the victim’s apartment in Jamestown found the victim deceased in the apartment and then reported the discovery to a neighbor, who then accompanied the tenant back to the apartment and called 911 to report the discovery of the victim’s body. The police thereafter discovered that the victim had sustained a fatal gunshot wound to the back of the head. As of that day and into the next, the murder weapon had not been located. During their investigation into the homicide, the police obtained security footage that depicted the hallway outside of the victim’s apartment. The security footage showed the victim and another male entering the victim’s apartment on January 22, 2024, but only the yet-to-be-identified male left the victim’s apartment later that same day. The investigative section commander with the investigating police department testified that, after obtaining a still photograph from the security footage and conducting further investigation, the police determined that defendant was the other male shown entering the apartment with the victim on January 22, 2024. Indeed, another officer recognized the other male—defendant—as the same person with whom he had a brief street encounter on January 22, 2024 in an alleyway on the backside of the victim’s apartment complex, i.e., defendant’s presence at the victim’s apartment complex was independently confirmed by a law enforcement source. Notably, during the street encounter that day, defendant partially misrepresented his name by giving his middle name as his surname. The police thus developed knowledge that defendant was the other male depicted leaving the victim’s apartment that same day. Based upon the police department’s review of the relevant duration of the security footage, however, no one else, including the victim, ever exited or entered the apartment from January 22, 2024 until January 24, 2024, i.e., the day that the victim’s body was discovered and the discovery was reported to the police. People v Kadenhead, 2026 NY Slip Op 04680, Fourth Dept 7-24-26

Practice Point: Here the Fourth Department determined the police had probable cause to arrest the defendant in the hallway of his apartment building, without a warrant, three days after the shooting.​

 

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DEFENDANT SPECIFICALLY CHALLENGED THE ACCURACY OF THE DMV DATABASE WHICH PURPORTEDLY INDICATED DEFENDANT’S DRIVER’S LICENSE HAD BEEN SUSPENDED (THE BASIS FOR THE TRAFFIC STOP): THE PEOPLE THEREFORE WERE REQUIRED TO DEMONSTRATE THE RELIABILITY OF THE DMV DATABASE TO DEMONSTRATE PROBABLE CAUSE; BY FAILING TO INTRODUCE ANY EVIDENCE ON THE ISSUE, THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE STOP (FOURTH DEPT).

The Fourth Department, reversing the judgment of conviction, suppressing the physical evidence and dismissing the indictment, over a two-justice dissent, determined the People did not demonstrate that the traffic stop was justified because the People offered no proof defendant’s license had been suspended at the time of the stop. An officer testified, just prior to stopping the defendant, he checked the DMV database on his in-vehicle computer where the suspension of defendant’s license was indicated. But no evidence establishing the license suspension or the accuracy of the DMV database was introduced:

Defendant contends that the People were required to establish, at the suppression hearing, that defendant’s license had been suspended, because defendant challenged the reliability of the DMV information, and that the court therefore erred in refusing to suppress physical evidence. We agree.

“It is well settled that, although ‘a defendant who challenges the legality of a search and seizure has the burden of proving illegality, the People are nevertheless put to the burden of going forward to show the legality of the police conduct in the first instance’ ” … . As relevant here, a vehicle stop is permissible when based on probable cause that the driver has committed a traffic violation … .

Under the “fellow officer rule” …. , “[a] police officer is entitled to act on the strength of a radio bulletin or a telephone or teletype alert from a fellow officer or department and to assume its reliability” … , and the same rule applies to the DMV database accessible on an in-vehicle computer … . “[T]he probabilities are that such detailed information of the type in these communications does not find its way onto the police air waves [or mobile data terminal] without substantial basis” … .

“But where on a motion to suppress, a challenge to the [officer’s] action is made, the presumption of probable cause that originally cloaked that action disappears from the case” … .  If a defendant raises a “specific challenge” to the reliability of certain transmitted information, that information may not be relied upon by the suppression court … . “[B]are reliance on an unsubstantiated hearsay communication from the instigating officer or department will not suffice for probable cause” … . “[T]he People must demonstrate that the sender or sending agency itself possessed the requisite probable cause to act” … . “The pertinent inquiry in all situations has been directed to the nature and reliability of the information possessed by the person or agency transmitting the information” … . People v McGuire, 2026 NY Slip Op 04597, Fourth Dept 7-24-26

Practice Point: When the accuracy of information transmitted to the arresting officer is specifically challenged, the People must prove the reliability of the information. Here the accuracy of the DMV database (showing that defendant’s license had been suspended) was specifically challenged. Because the People did not attempt to prove the information in the DMV database was reliable, they did not demonstrate probable cause for the traffic stop.

 

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THE POLICE ASKED FOR DEFENDANT’S NAME AND DATE OF BIRTH; HE PROVIDED A FALSE NAME; HE PROVIDED HIS REAL NAME ONLY AFTER HE WAS WARNED OF THE CONSEQUENCES OF PROVIDING A FALSE NAME AND DETAINED; THE POLICE QUESTIONING DID NOT TRIGGER THE NEED FOR THE MIRANDA WARNINGS BECAUSE THE POLICE WERE SEEKING ONLY “PEDIGREE” INFORMATION; THERE WAS A TWO-JUSTICE DISSENT (FOURTH DEPT).

he Fourth Department, affirming the conviction, determined there was no Miranda violation because the police asked only pedigree questions. The two dissenters disagreed:

… [T]he police officer, accompanied by two other members of the police department, responded to a residence after receiving a complaint that there were unwanted guests there. Upon their arrival, the complainant reported to the police that there were two unwanted guests in the residence: a female guest identified by name and a male guest supposedly named “Rodney.” The police identified the female guest by name and she agreed to leave without argument.

The police located the male guest—later identified as defendant—in the closet of a back bedroom underneath some clothes and other items. The police asked defendant to identify himself by name and date of birth. Defendant provided the police with the false name “Rodney Miller” and a purported date of birth. The police gave defendant multiple warnings that it was illegal to lie to them about his name, but defendant continued to provide the false name. The officer testified that defendant was not free to leave during the interaction until the police identified him. The officer explained, among other things, that the police did not provide defendant with Miranda warnings prior to asking for his name and date of birth because they were merely attempting to obtain defendant’s pedigree information as a routine matter for any such encounter. The officer further testified that the police then informed defendant that he was going to be detained and, upon being detained, defendant provided his real name. Thereafter, the police ultimately determined that there was an order of protection in place against defendant and in favor of the female guest. The police then arrested defendant for violating the order of protection and for providing false pedigree information. * * *

… [W]e conclude that the court properly determined that the pedigree exception applied and thus properly denied that part of defendant’s omnibus motion seeking to suppress his statements to the police. The officer testified at the suppression hearing that the purpose of asking pedigree questions of both the female guest and defendant was “[t]o identify who they were and advise them they were no longer welcome there,” and that requesting general information such as names and dates of birth was routine for any such encounter. The officer’s testimony thus established the administrative purpose for seeking pedigree information during an encounter of that nature: the police must know with whom they are speaking in a residence … . The People “thereby established the threshold basis for the pedigree exception to apply, i.e., the questions were reasonably related to the police’s administrative concerns” … . * * *

As the Court of Appeals has cautioned, “[a]lthough there may be some circumstances where asking a suspect for core identifying information such as name, date of birth, and address will not qualify for the pedigree exception to Miranda, those circumstances will be rare” (id. at 416). People v Milton, 2026 NY Slip Op 04584, Fourth Dept 7-24-26

Practice Point; The police may ask for a person’s name and date of birth without providing Miranda warnings, even when the police are aware the person has provided a false name.

 

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TO STATE A MERITORIOUS CLAIM AGAINST THE STATE IN THE COURT OF CLAIMS, CLAIMANT NEED NOT MAKE OUT A PRIMA FACIE CASE; IT IS ENOUGH THAT THE CLAIM HAS THE APPEARANCE OF MERIT; HERE CLAIMANT’S APPLICATION FOR PERMISSION TO FILE A LATE CLAIM SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined claimant’s application for permission to file a late claim should have been granted. The Court of Claims found that claimant did not demonstrate a meritorious claim. The Fourth Department explained that a claimant need not make out a prima facie case at this stage. If the claim is not patently groundless, frivolous or legally defective it should be deemed meritorious:

… [W]hile being treated in the inpatient psychiatric unit at Upstate, she was restrained by security officers and nurses because she was engaging in self-harm or had refused medication and injection. According to claimant, security officers escorted her to a seclusion room and forcefully pinned her down, with several security officers lying on top of her while her left arm was underneath her body. Claimant’s medical records confirmed that four security officers and two nurses were involved in the restraining incident. Claimant allegedly screamed out in pain, and a nurse told the security officers to get off of her. Consistent with claimant’s allegations, the medical records establish that, as a result of the incident, claimant suffered a dislocated left elbow, which first required a closed reduction under sedation and placement of a cast and later required surgery under general anesthesia to correct the recurrent instability in her elbow and a complete tear of the ligament complex.

… [T]he evidence presented by claimant in support of the application demonstrates that the security officers and nurses may have caused her injuries, as she alleges, by negligently applying excessive force while attempting to restrain her … . Further, contrary to the State’s assertion, to the extent that Upstate’s account of the incident in the medical records suggests that claimant somehow dislocated her own elbow, that notation created at most a factual issue with respect to causation … . Consequently, on this record, it cannot be said that “the claim raised is patently groundless, frivolous or legally defective” … . … [C]aimant’s submissions on the application are sufficient, at this stage in the proceedings, to demonstrate that there appears to be merit to her claim within the meaning of Court of Claims Act § 10 (6) … . Viola v SUNY Upstate Univ. Hosp., 2026 NY Slip Op 04604, Fourth Dept 7-24-26

Practice Point: In seeking permission to make a late claim in the Court of Claims, claimant need not make out a prima facie case. It is enough that the claim has the appearance of merit, i.e., that it is not patently groundless, frivolous or legally defective.

 

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THE ATTEMPTED RAPE AND ROBBERY CONVICTIONS WERE “AGAINST THE WEIGHT OF THE EVIDENCE” (FOURTH DEPT).

The Fourth Department, reversing the attempted rape and robbery convictions, determined there was insufficient evidence defendant intended to have intercourse with the victim there was insufficient evidence defendant intended to deprive the victim of her emergency alarm which he possessed only briefly and then discarded. The convictions were deemed “against the weight of the evidence.” The defendant was an inmate in a correctional facility and the victim a civilian employee. The defendant attacked and fell on top of the victim after following her to a secluded area of the prison kitchen. The assault conviction was affirmed:

… [W]e conclude that the People failed to prove beyond a reasonable doubt that defendant intended and attempted to have sexual intercourse with the victim. Beyond the surrounding circumstances, such as the location of the attack and defendant’s insistence that the victim be quiet, the sole evidence presented by the People from which a factfinder could infer any sexual component to defendant’s actions was the victim’s testimony that, after they fell to the floor and defendant was on top of her, defendant’s “hands were all over [her] at that point.” The victim further acknowledged, however, that defendant never physically reached underneath any of her clothing and never attempted to remove her pants. Unlike comparable cases, the People here adduced no evidence of a particularized sexual motivation or component underlying defendant’s actions, nor did the People present evidence—beyond the generalized testimony that defendant’s hands were “all over” the victim—that defendant attempted to engage specifically in sexual intercourse with the victim … . Even though “the absence of an explicit demand for sex does not undermine a finding of attempted rape” under circumstances from which a factfinder could reasonably conclude that the defendant intended and attempted to engage, specifically, in forcible sexual intercourse … , we conclude that the evidence is not strong enough to establish the existence of such circumstances in this case. People v Jenkins, 2026 NY Slip Op 04677, Fourth Dept 7-24-26

Practice Point: Consult this decision for two rare examples of “against the weight of the evidence” reversals.

 

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THE JUDGE SHOULD NOT HAVE REMOVED RESPONDENT CO-TRUSTEE WITHOUT A HEARING, CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Surrogate’s Court, determined the respondent co-trustee should not have been removed without a hearing. Where the facts are disputed, a hearing is required:

… “[The] removal of a fiduciary pursuant to SCPA 711 [or] 719 is equivalent to ‘a judicial nullification of the [settlor’s] choice and may only be decreed when the grounds set forth in the relevant statutes have been clearly established’ ” … . Under either SCPA 711 or 719, ” ‘[t]he Surrogate may remove without a hearing only where the misconduct is established by undisputed facts or concessions [or] where the fiduciary’s in-court conduct causes such facts to be within the court’s knowledge’ ” … , and the removal of a trustee without a hearing “will constitute an abuse of discretion ‘where the facts are disputed, where conflicting inferences may be drawn therefrom . . . or where there are claimed mitigating facts that, if established, would render summary removal an inappropriate remedy’ ” … . Here, in response to the factual averments by petitioners as to his misconduct, respondent submitted, inter alia, an affidavit in which he denied having ever improperly removed Trust assets or interfering with the leasing of Trust property, explained how his actions accorded—in his view—with his powers and obligations under the Trust documents, and disputed petitioners’ underlying factual averments. Presented with the competing claims, a hearing was required inasmuch as “the Surrogate must make a credibility determination concerning those issues, and then exercise [their] discretion concerning whether respondent should be removed from [his] appointment[ ]” … . Matter of Simmons (Simmons), 2026 NY Slip Op 04675, Fourth Dept 7-24-26

Practice Point: Consult this decision for insight into when a hearing is required before a co-trustee can be removed under the Surrogate’s Court Procedure Act (SPCA).

 

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