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ALTHOUGH THE BIPOLAR-DISORDER DIAGNOSIS WAS MADE “POST-CRIME,” THE EVIDENCE WAS RELEVANT TO DEFENDANT’S “MENTAL DISEASE OR DEFECT” AFFIRMATIVE DEFENSE AND SHOULD NOT HAVE BEEN PRECLUDED; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the psychiatric evidence regarding defendant’s “post-crime” mental health (bipolar disorder) was relevant to defendant’s “mental disease or defect” affirmative defense and should not have been precluded. The psychiatrist could not testify defendant suffered from “bipolar disorder” at the time of offense, but could testify that the disorder takes years to develop, which meets the flexible “relevancy” test:

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” … . …

We conclude that “[i]nasmuch as the psychiatrist’s [prospective] testimony that defendant was suffering from [bipolar disorder, type 1, most recent episode manic with psychotic features] would render a finding of lack of criminal responsibility more probable than it would be without such evidence, the [psychiatrist’s] diagnosis [was] . . . relevant” … . …

Here, although the psychiatrist did not evaluate defendant prior to the crimes and thus could not render a medical opinion that defendant had bipolar disorder on the date of the crimes, “there were indications in [his] testimony that the mental disease from which defendant was suffering could take [years] to develop [before diagnosis] and [that] . . . the [prior medical] records . . . suggest[ed] the existence of some mental disorder a considerable time before the crime[s]” … . …

Finally, we conclude that the error is not harmless … . The preclusion of the psychiatrist’s testimony effectively prevented defendant from mounting his affirmative defense (see Penal Law § 40.15) and severely undermined his ability to separately argue that he lacked the requisite mental state to commit the charged offenses … . Inasmuch as ” ‘it cannot be said that there is no reasonable possibility that the error contributed to the verdict, the error cannot be deemed harmless beyond a reasonable doubt and reversal therefore is required’ ” … . People v Williams, 2026 NY Slip Op 04095, Fourth Dept 6-26-26

Practice Point: Consult this decision for insight into the relevancy of evidence. Here a post-crime bipolar disorder diagnosis was deemed relevant to defendant’s “mental disease or defect” affirmatve defense.​

 

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THE POLICE DID NOT HAVE INFORMATION DEMONSTRATING THE TEMPORARY TEXAS REGISTRATION WAS INVALID AT THE TIME THEY IMPOUNDED THE CAR; THE INVENTORY SEARCH WAS IMPROPER AND THE HANDGUNS SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the officers who stopped defendant’s vehicle did not have any information that the temporary Texas registration was invalid at the time the vehicle was impounded. Therefore the inventory search was invalid and the handguns should have been suppressed:

“An inventory search is exactly what its name suggests, a search designed to properly catalogue the contents of the item searched” … . Inventory searches may not be used as “a ruse for a general rummaging in order to discover incriminating evidence” … and, unlike a traffic stop, “will be constitutionally invalid where the search was merely a pretext to search for evidence of a crime” … . “Only a lawfully impounded vehicle may be subjected to an inventory search” … , and “[t]he People bear the threshold burden of demonstrating that the subject vehicle was lawfully impounded at the time of the inventory search” … . People v Boatwright, 2026 NY Slip Op 04071, Fourth Dept 6-26-26

Practice Point: Without a valid reason to impound a car, an inventory search of the car is not justified.​

 

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CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S SLIP AND FALL, INCLUDING A VIDEO AND PLAINTIFF’S DESCRIPTION OF THE FALL, WERE SUFFICIENT TO WITHSTAND A SUMMARY JUDGMENT MOTION (THRID DEPT). ​

The Third Department, reversing Supreme Court, determined the defendant grocery store’s motion for summary judgment in this slip and fall action should not have been granted. A video depicted plaintiff coming around the corner of a bottled water display and falling. She testified cases of water protruded into the aisle. Although she she could not say exactly what caused her to trip, the circumstantial evidence of the cause of the fall was sufficient to create a question of fact:

…”[E]ven when a plaintiff is unable to identify the cause of a fall with certainty, a case of negligence based wholly on circumstantial evidence may be established if the plaintiff shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred” … . It is true that Grant never observed the actual item he tripped over, nor its precise location. However, given Grant’s deposition testimony indicating that he tripped over something made of soft plastic, plaintiff’s deposition testimony that there were cases of water hanging over the edge of the endcap and the video portraying a case being knocked off the display as Grant tripped and fell, defendant’s negligence could reasonably be inferred.

Even if defendants had met their initial burden of showing entitlement to judgment as a matter of law, plaintiff raised a triable issue of fact as to whether the endcap display was inherently dangerous … . In opposition to the motion, plaintiff submitted the affidavit of a commercial space designer and retail safety expert who opined that the endcap display was hazardous, inasmuch as the bottom layers of water cases were stacked below a customer’s typical line of sight, which ranges between three to six feet from the ground. According to the expert, defendants failed to conform with certain industry standards concerning the proper height of floor displays and the need for endcap displays to be fully stocked to prevent tripping hazards. Grant v Golub Corp., 2026 NY Slip Op 04013, Third Dept 6-24-26

Practice Point: Consult this decision for an example of sufficient proof of causation of a slip and fall by circumstantial evidence. Usually the failure to pinpoint the exact cause of a slip and fall will be fatal to the action.

 

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THE PETITIONER DID NOT DEMONSTRATE IT MADE DILIGENT EFFORTS TO STRENGTHEN THE PARENT-CHILD RELATIONSHIP IN THIS TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING; PERMANENT NEGLECT FINDING VACATED; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Family Court, determined petitioner in this termination-of-parental-rights proceeding, did not demonstrate make a diligent effort to encourage and strengthen the parent-child relationship. ‘the permanent neglect finding was vacated:

“When a foster care agency brings a proceeding to terminate parental rights on the ground of permanent neglect, it must, as a threshold matter, prove by clear and convincing evidence that it has fulfilled its statutory duty to exercise diligent efforts to encourage and strengthen the parent-child relationship” (… see Social Services Law § 384-b[7][a]). “Those efforts must include counseling, making suitable arrangements for parental access, providing assistance to the parents to resolve the problems preventing the child’s discharge, and advising the parents of the child’s progress and development” … . “An agency must always determine the particular problems facing a parent with respect to the return of his or her child and make affirmative, repeated, and meaningful efforts to assist the parent in overcoming these handicaps” … .

Here, the petitioner failed to meet its initial burden of establishing by clear and convincing evidence that it exercised diligent efforts to strengthen the parental relationship between the father and the children … . The evidence adduced at the fact-finding hearing failed to establish that the petitioner arranged any parental access between the father and the children, referred the father to any services, or assisted the father with obtaining suitable housing. Matter of Elijah L. Jr. (Elijah L.), 2026 NY Slip Op 03963, Second Dept 6-24-26

Practice Point: In a termination-of-parental-rights proceeding the agency must demonstrate that diligent efforts to strengthen the parent-child relationship were made. Here the proof of diligent efforts was lacking.

 

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DEFENDANT WAS OBSERVED WALKING UP AND DOWN DRIVEWAYS IN A RESIDENTIAL NEIGHBORHOOD; WHEN THE POLICE ASKED HIM TO STOP, HE RAN AND THE POLICED PURSUED; THE POLICE DID NOT HAVE “REASONABLE SUSPICION” JUSTIFYING PURSUIT; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing the conviction by plea, determined the police did not have “reasonable suspicion” defendant was committing a crime at the time the defendant ran from them. The police were justified in exercising the “common law right of inquiry” because defendant was seen walking in different yards in a residential neighborhood. But the police were not justified in pursuing the defendant when he ran. The gun defendant discarded that the statements made to the police should have been suppressed:

… [T]he encounter began as a level two intrusion, with the officers parking and exiting their vehicle, stating “police,” and asking the defendant to stop … . The officers’ pursuit of the defendant constituted a level three intrusion, requiring a reasonable suspicion that the defendant was involved in a felony or misdemeanor … .. Here, however, the circumstances, which included the defendant’s actions of walking up and down the driveways of 105-31 and 105-33 Farmers Boulevard and across a lawn and toward the rear of a residence on 109th Avenue, “although not inconsistent with culpable [conduct,] are also susceptible of many innocent interpretations” … , and were, “[a]t most . . . equivocal and suspicious” … . Importantly, the officers did not observe the defendant looking into any houses or backyards, and did not observe him carrying or attempting to conceal any tools or weapons. Therefore, the defendant’s actions preceding his interaction with the officers and his flight therefrom did not support a reasonable suspicion of particularized criminal action … . People v Bryant, 2026 NY Slip Op 03976, Second Dept 6-24-25

Practice Point: Walking up and down residential driveways, carrying nothing and not looking into houses, justified exercise of the common law right of inquiry by the police. But defendant’s immediate flight from the police did not justify pursuit.

 

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HERE IN THIS SIDEWALK SLIP AND FALL CASE THE DEFENDANTS DID NOT DEMONSTRATE THE PROPERTY ADJACENT TO THE UNEVEN SIDEWALK WAS “OWNER OCCUPIED” SUCH THAT THE NYC ADMINISTRATIVE CODE EXCEPTION TO THE SIDEWALK-MAINTENANCE OBLIGATION APPLIED; CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendants’ motion for summary judgment in this sidewalk slip and fall case should not have been granted. The NYC Administrative Code creates an exception to the sidewalk-maintenance requirement for “owner occupied” properties. That term is undefined. Here the defendants did not submit sufficient proof that the “owner-occupied” exception applied:

“‘Section 7-210 of the Administrative Code of the City of New York unambiguously imposes a nondelegable duty on certain real property owners to maintain city sidewalks abutting their land in a reasonably safe condition'” … . “However, this liability-shifting provision does not apply to ‘one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes'” … . “The statute does not expressly contain a primary residence requirement as part of the owner-occupied exemption, but the term ‘owner occupied’ generally is used to mean that the owner regularly occupies the property as a residence” … . Although “owner occupied” is not defined in the statute, it is clearly a lower standard than that of a primary residence. Furthermore, “[t]he purpose of the exception in the Code is to recognize the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair” … .

The Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them. The defendants failed to establish, prima facie, that they were entitled to the exemption from liability under Administrative Code § 7-210(b). Although the defendants submitted proof that they are the owners of the subject property, which is a one-family home, they failed to eliminate triable issues of fact as to whether the property was “owner occupied” within the meaning of the statute … . Mantinaos v City of New York, 2026 NY Slip Op 03957, Second Dept 6-24-26

Practice Point: Consult this decision for insight into the meaning of “owner occupied” in the NYC Administrative Code such that the sidewalk-maintenance obligation does not apply.

 

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HERE THE DISTRICT ATTORNEY BROUGHT A PETITION FOR A WRIT OF PROHIBITION TO PROHIBIT THE ENFORCEMENT OF AN ORDER PRECLUDING EVIDENCE BECAUSE THE PEOPLE’S PRODUCTION OF DISCOVERY WAS DEEMED UNTIMELY; A WRIT OF PROHIBITION DOES NOT LIE FOR THIS PURPOSE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Quirk, determined that the trial judge’s preclusion of evidence based upon the district attorney’s untimely production of discovery was not subject to the extraordinary remedy of prohibition. The petition for a writ of prohibition was brought by the then district attorney:

Granting prohibition here would constitute improper collateral interlocutory review. This point is underscored by the Legislature’s amendment of CPL 450.20 to permit the People to appeal as of right from the portion of an order dismissing an accusatory instrument or some of its counts pursuant to CPL 245.80(2). In enacting this amendment, the Legislature chose to limit the types of appeals available to the People and did not permit the People to appeal from orders granting other remedies or sanctions under CPL 245.80(2), including orders precluding evidence, regardless of whether such orders would prevent the People from prosecuting a case. Contrary to the petitioner’s contentions, although the nonappealability of an order may be considered as a factor in favor of prohibition as part of the second step of the two-tiered analysis, “nonreviewability by way of appeal alone, does not provide a basis for reviewing error by collateral proceeding in the nature . . . of prohibition”  … .

Since a writ of prohibition does not lie, the Supreme Court should have denied that branch of the petition which was to prohibit the enforcement of the order of preclusion.  Matter of Rocah v McCarthy, 2026 NY Slip Op 03967, Second Dept 6-24-26

Practice Point: A writ of prohibition does not lie to prohibit the enforcement of an order precluding evidence becasue the production of discovery by the People was deemed untimely.

 

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THE PETITIONER DID NOT DEMONSTRATE IT MADE DILIGENT EFFORTS TO STRENGTHEN THE PARENT-CHILD RELATIONSHIP IN THIS TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING; PERMANENT NEGLECT FINDING VACATED; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Family Court, determined petitioner in this termination-of-parental-rights proceeding, did not demonstrate make a diligent effort to encourage and strengthen the parent-child relationship. ‘the permanent neglect finding was vacated:

“When a foster care agency brings a proceeding to terminate parental rights on the ground of permanent neglect, it must, as a threshold matter, prove by clear and convincing evidence that it has fulfilled its statutory duty to exercise diligent efforts to encourage and strengthen the parent-child relationship” (… see Social Services Law § 384-b[7][a]). “Those efforts must include counseling, making suitable arrangements for parental access, providing assistance to the parents to resolve the problems preventing the child’s discharge, and advising the parents of the child’s progress and development” … . “An agency must always determine the particular problems facing a parent with respect to the return of his or her child and make affirmative, repeated, and meaningful efforts to assist the parent in overcoming these handicaps” … .

Here, the petitioner failed to meet its initial burden of establishing by clear and convincing evidence that it exercised diligent efforts to strengthen the parental relationship between the father and the children … . The evidence adduced at the fact-finding hearing failed to establish that the petitioner arranged any parental access between the father and the children, referred the father to any services, or assisted the father with obtaining suitable housing. Matter of Elijah L. Jr. (Elijah L.), 2026 NY Slip Op 03963, Second Dept 6-24-26

Practice Point: In a termination-of-parental-rights proceeding the agency must demonstrate that diligent efforts to strengthen the parent-child relationship were made. Here the proof of diligent efforts was lacking.

 

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PLAINTIFF’S STATEMENT THE LADDER MOVED SIDE TO SIDE CAUSING HIM TO FALL AND PLAINTIFF’S STATEMENT HE LOST HIS BALANCE ARE NOT INCONSISTENT; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Suprem[e Court, determined plaintiff in this ladder-fall case was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff testified the ladder moved side to side. A medica report indicated plaintiff said he lost his balance. The two statements were not inconsistent:

Plaintiff, who fell from an eight-foot A-frame ladder while installing sheetrock, established his prima facie entitlement to summary judgment on his Labor Law § 240(1) cause of action through his testimony that the ladder moved from side to side and caused him to fall … .

… [Even] if plaintiff’s hearsay statement contained in his post-accident medical report and post-accident investigation report that he lost his balance may be considered, it is not inconsistent with his testimony that the ladder moved and caused him to fall … . Gomez v Brookfield Props. One WFC Co., LLC, 2026 NY Slip Op 03921, First Dept 6-23-26

Practice Point: The statement that a ladder-fall resulted from movement of the ladder from side to sided and the statement that the ladder-fall resulted from plaintiff’s losing his balance are not inconsistent and do not create a question of fact.

 

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WHEN DEFENSE COUNSEL REALIZED THE STIPULATION SHE HAD SIGNED EFFECTIVELY EQUATED POSSESSION OF THE LAPTOP WITH POSSESSION OF THE CHILD PORNOGRAPHY FOUND ON THE LAPTOP SHE MOVED FOR A MISTRIAL ARGUING SHE HAD PROVIDED INEFFECTIVE ASSISTANCE; THE APPELLATE DIVISION AND THE COURT OF APPEALS AGREED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, affirming the Appellate Division, and agreeing with defense counsel’s own trial argument that her signing the stipulation constituted ineffective assistance, determined the stipulation in this child pornography case essentially equated possession of the laptop with possession of child pornography found on the laptop. Defendant asserted that he found the laptop in the garbage and that any child pornography was placed there by someone else:

Defense counsel’s decision to sign paragraphs 4 and 5 of the stipulation … deprived the defendant of meaningful representation. On their face, paragraphs 4 and 5 may be read to eliminate the crimes’ mens rea requirements—the very elements on which the defense theory rested—contrary to the court’s instruction that to convict the defendant of possessing the CSAM [child sexual abuse material], the jury had to conclude beyond a reasonable doubt that he committed the requisite “affirmative acts.” So understood, the stipulation would have undermined the defendant’s core contention that he possessed the laptop without knowing it contained the CSAM. … [P]aragraphs 4 and 5, which provide that “whoever possessed” the videos “promoted” a sexual performance by a child “with knowledge of the character and content of the videos,” and that “whoever possessed” the images did so “knowingly,” went further than was necessary … . … [T]he record reveals no other strategic reason for agreeing to those paragraphs’ vital legal concessions. * * *

… [I]n the specific circumstances of this case, where the defendant conceded physical possession of the laptop and the images in the unallocated space were repeatedly described as “on the laptop” by the parties, the witnesses, and the stipulation itself, the stipulation could have allowed the jury to conclude that the defendant’s physical possession of the laptop equated to his knowing possession of the images in the unallocated space. As for the video counts, although defense counsel contended that the defendant had never possessed the videos at all, the theory of the People’s case was that the same person shared and downloaded both the videos and images. Thus, the stipulation’s concession as to the image counts could well have tainted the jury’s deliberations on video counts.  People v Guerra, 2026 NY Slip Op 03905, CtApp 6-18-26

Practice Point: Consult this opinion for insight into what the People must prove to demonstrate the possessor of a laptop “possesses” child pornography found on the laptop. Merely viewing is not possessing. The People must prove defendant “exercised dominion and control” over the pornography by downloading or printing it for example. Here the defendant asserted he found the laptop in the garbage and any pornography found on the laptop was not put there by him.

 

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