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PLAINTIFF ALLEGED DEFENDANT HOSPITAL WAS NEGLIGENT IN PLACING HIM IN A ROOM WITH A PERSON WITH COVID; PLAINTIFF WAS ENTITLED TO DISCOVERY OF THAT PERSON’S MEDICAL RECORDS TO DETERMINE WHEN THE HOSPITAL BECAME AWARE OF THE COVID DIAGNOSIS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff was entitled to discovery of another’s medical records. Plaintiff alleged the hospital was negligent in placing plaintiff in a room with a person with COVID. The sought medical records may reveal when the hospital became aware of the COVID diagnosis:

Although “discovery determinations rest within the sound discretion of the trial court, the Appellate Division is vested with a corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse” … . CPLR 3101 (a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” “What is material and necessary is left to the sound discretion of the lower courts and includes any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” … .

Pursuant to CPLR 4504 (a), “a person authorized to practice medicine . . . shall not be allowed to disclose any information which [they] acquired in attending a patient in a professional capacity, and which was necessary to enable [them] to act in that capacity.” The physician-patient privilege may be overcome, however, where the plaintiff establishes that the information in the medical records is material and necessary to their claim … . Here, plaintiffs established that the nonparty patient’s hospital records would show when defendant, its agents, servants and employees became aware that the patient had tested positive for COVID-19 and that such information is material and necessary to establish whether defendant had notice that it was placing plaintiff in the same room as a person who had COVID-19 … . Martin v Kaleida Health, 2025 NY Slip Op 01756, Fourth Dept 3-21-25

Practice Point: Here plaintiff was entitled to limited discovery of another’s medical records because the records were “material and necessary to the prosecution of the action.”

 

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The Fourth Department, reversing defendant’s strangulation conviction and ordering a new trial, determined the admission of the testimony of a police officer describing unrelated allegations of strangulation by other complainants deprived defendant of a fair trial:

… County Court erred in admitting in evidence testimony from a police officer who responded to the scene regarding his observations of other, unnamed complainants in prior, unspecified cases. The officer was permitted to testify that he had taken photographs “once or twice” of complainants who had “alleged strangulations,” and that he could not recall having observed bruises on those other complainants. The officer’s testimony was used by the People in order to explain that the lack of marks on the neck of the victim in the present case did not mean that defendant did not strangle her. Indeed, during closing argument the People invited the jury to “recall the testimony of [the officer], that he did not observe any signs of bruising on [the victim’s] neck. You’ll also recall that he has been to other strangulations and investigated those, and he didn’t find any injuries there either.” We conclude that the officer’s testimony regarding prior, unrelated cases is entirely irrelevant to the instant case, and that it was error to admit that “irrelevant and highly prejudicial testimony” … . People v Iqbal, 2025 NY Slip Op 01746, Fourth Dept 3-21-25

Practice Point: Here a police officer’s vague testimony about unrelated allegations of strangulation involving complainants other than the victim in this strangulation case deprived defendant of a fair trial.

 

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THE MAJORITY AFFIRMED DEFENDANT’S DRIVING-RELATED RECKLESS-ENDANGERMENT-FIRST-DEGREE CONVICTION STEMMING FROM HIS STRIKING SEVERAL CARS, CAUSING ONE TO FLIP, AND CRASHING INTO A HOUSE; TWO DISSENTERS ARGUED THE PROOF DID NOT SUPPORT THE “DEPRAVED INDIFFERENCE” ELEMENT OF THE OFFENSE (THIRD DEPT). ​

he Third Department affirmed defendant reckless endangerment first degree conviction over a two-justice dissent which argued the evidence did not support the “depraved indifference” element of the offense:

From the dissent:

As the majority details, on the morning of June 27, 2018, defendant was driving his vehicle in the Town of Colonie, Albany County when he collided with several vehicles — causing one to flip over — before hitting a curb and crashing into the foundation of a house. We acknowledge that the People were able to rely on the circumstantial evidence surrounding defendant’s conduct to establish that he acted with the requisite mens rea of depraved indifference to human life … . Nevertheless, in reviewing these particular circumstances, we believe there is insufficient evidence to show that he was aware of, appreciated and disregarded the risks caused by his behavior (see id.). It is uncontroverted that defendant was driving recklessly and that, in doing so, he caused significant property damage as well as various degrees of injury to the victims. However, throughout this ordeal, which lasted less than five minutes and spanned less than half a mile, defendant was not driving well in excess of the posted speed limit, and there is no evidence that he ever drove against oncoming traffic or failed to obey traffic lights … . Even viewing the particular circumstances here in the light most favorable to the People, we do not believe that this case presents one of the rare circumstances where “the mens rea of depraved indifference . . . [is] established by risky behavior alone” … . People v Bender, 2025 NY Slip Op 01678, Third Dept 3-20-25

Practice Point: Consult this decision for some insight into the proof necessary for the “depraved indifference” element of reckless endangerment first degree in context of reckless driving.​

 

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IN A FACT-SPECIFIC OPINION, THE COURT OF APPEALS, REVERSING THE APPELLATE DIVISION, DETERMINED THERE WAS SUBSTANTIAL EVIDENCE SUPPORTING THE UNIVERSITY’S RULING THAT PETITIONER-STUDENT VIOLATED THE CODE OF STUDENT CONDUCT BY ENGAGING IN UNWANTED SEXUAL ACTIVITY (CT APP). ​

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Cannatara, in a fact-specific analysis, determined the university’s ruling that petitioner, P.C., a university student, violated the Code of Student Responsibility by engaging in unwelcome sexual activity with another student, S.G., was supported by the evidence:

… [S]ubstantial evidence supports the determination that P.C. violated the Code of Student Responsibility by engaging in unwanted sexual activity with S.G. despite her physical resistance and loss of consciousness during separate encounters. Although some aspects of the sexual encounters may have been consensual, there is ample evidence that other aspects were not. S.G.’s unrebutted testimony was deemed credible and she provided consistent evidence, both in her written statement for the investigator and in her hearing testimony, that she tried unsuccessfully to physically remove P.C.’s hands from her neck during an encounter in the woods. Under the Code of Student Responsibility, her physical resistance is inconsistent with affirmative consent.

Similarly, with respect to the allegation that P.C. had sex with S.G. in the car without her affirmative consent, S.G. consistently maintained that she lost consciousness, woke up while P.C. was still having sex with her, and that P.C. then told her she had only been “out” for a moment. Under the Code, sexual activity must stop when a person is incapacitated by lack of consciousness or being asleep. Moreover, P.C.’s own text messages acknowledge the sexual contact and, to some degree, evince a consciousness of guilt.

The evidence adduced depicting unwelcome sexual conduct by P.C. constitutes substantial evidence supporting all three charges. In reaching the opposite conclusion, the Appellate Division majority improperly reweighed the evidence by relying on S.G.’s statements concerning consensual conduct that transpired earlier in the evening, to the exclusion of her testimony regarding the contact to which she did not consent, and disregarded the conclusion that P.C.’s text messages reflected a consciousness of guilt. Matter of P.C. v Stony Brook Univ., 2025 NY Slip Op 01566, CtApp 3-18-25

Practice Point: Consult this opinion for some insight into the evidence which is sufficient to support a university’s ruling that a student should be suspended for violating the Code of Student Responsibility by engaging in unwanted sexual activity.

 

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THE EVIDENCE THAT DEFENDANT HAD USED ALCOHOL TO EXCESS AT THE TIME OF THE CRIME WAS CONFLICTING AND INSUFFICIENT; IN ADDITION, THE DEFENDANT WAS NOT IN CUSTODY OR UNDER SUPERVISION AT THE TIME OF ALLEGED MISCONDUCT; THEREFORE 25 POINTS WERE TAKEN OFF DEFENDANT’S RISK-LEVEL ASSESSMENT (FOURTH DEPT).

The Fourth Department determined the evidence did not support the finding that defendant was intoxicated at the time of the offense. In addition the SORA court wrongly found that defendant was in custody or under supervision at the time of alleged misconduct. Therefore a total of 25 points were wrongly applied to the risk-level assessment:

… [I]n order to demonstrate that [defendant] was abusing . . . alcohol at the time of the offense, the People [were required to] show by clear and convincing evidence that [defendant] used alcohol in excess . . . at the time of the crime” … . Here, the victim informed a caseworker that, on the night of that incident, defendant had been “outside by the fire drinking.” Defendant’s ex-wife also indicated in her victim impact statement that defendant was “drunk” on the night of that incident, but it is unclear whether the source of her information was the victim or hearsay from an unidentified third-party with whom the victim had spoken and whose reliability could not be tested … . In contrast, the victim denied that defendant had been drinking at the time of the second incident and indicated that defendant “normally doesn’t drink.” In his interview with probation, defendant denied “current alcohol or substance use and . . . any current or past treatment for such.” We conclude that there is no indication in the record that defendant abused alcohol by drinking in excess, that defendant became intoxicated, or that alcohol affected his behavior during the incident … . Nor is it “clear from the record what time the drinking occurred, how much [defendant] had to drink, and how much time passed before he abused [the] victim” … . The People thus failed to establish that defendant abused alcohol at the time of the offensive conduct, and the court erred in assessing 15 points under risk factor 11. People v Crane, 2025 NY Slip Op 01530,Fourth Dept 3-14-25

Practice Point: Here the evidence that defendant had used alcohol to excess at the time of the crime was weak and conflicting, rendering it insufficient to support the 15 points assessed on that ground.

 

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ALTHOUGH THE DEFENDANT WAS NOT THE PAROLE ABSCONDER FOR WHOM THE POLICE HAD AN ARREST WARRANT, THE MAJORITY DETERMINED THE PEOPLE PROVED THE POLICE REASONABLY BELIEVED DEFENDANT WAS THE PAROLE ABSCONDER WHEN THEY APPROACHED HIM, WHICH JUSTIFIED THE PURSUIT OF THE DEFENDANT; TWO DISSENTERS ARGUED THE PROOF AT THE SUPPRESSION HEARING, WHICH DID NOT INCLUDE TESTIMONY BY THE OFFICERS WHO FIRST APPROACHED DEFENDANT, DID NOT DEMONSTRATE THE POLICE REASONABLY BELIEVED DEFENDANT WAS THE SUBJECT OF THE ARREST WARRANT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the police reasonably (but erroneously) believed defendant was the parole absconder for whom they had an arrest warrant. The pursuit and arrest, based in part on observing the defendant discard an handgun, were deemed proper:

… [T]here is no dispute that the apprehension team had probable cause to arrest the parole absconder inasmuch as an arrest warrant had been issued. As for the second element, “[t]he reasonableness of the arresting officers’ conduct must be determined by considering the totality of the circumstances surrounding the arrest”… , and “great deference should be given to the determination of the suppression court, which had the opportunity to observe the demeanor of the witnesses and to assess their credibility, and its factual findings should not be disturbed unless clearly erroneous” … . Even though “[f]light alone . . . is insufficient to justify [a] pursuit” … , we conclude that under the totality of the circumstances present here the arresting officer’s testimony establishes that he reasonably believed that defendant was the absconder when he initiated his pursuit. Defendant closely matched the height and weight provided in the parole absconder’s description, covered his face with a ski mask, was in the location provided by the absconder’s girlfriend, and immediately fled upon being approached by one of the apprehension team’s unmarked vehicles. Inasmuch as the initial pursuit and subsequent arrest of defendant—which occurred after he was observed holding and then discarding a handgun—were lawful, the court did not err in refusing to suppress the physical evidence recovered during the post-arrest search of defendant and the surrounding area … .

From the dissent:

In our view, however, it does not appear that the pursuing officers had even a subjectively reasonable belief that defendant was the parolee for whom they had an arrest warrant. Indeed, the People, who are “put to the burden of going forward to show the legality of the police conduct in the first instance” … , failed to adduce anything other than that defendant matched the generic height and weight of the average male in the general population. Notably, the People failed to call the approaching officers, and thus adduced no testimony with respect to their actions, observations, or whether they believed—reasonably or not—that defendant was the parole absconder, particularly in the absence of any evidence that they chased defendant when he fled.

The officers who did testify at the suppression hearing—the pursuing officers—testified simply that defendant roughly matched the height and weight of the parolee and that he fled. As set forth above, the pursuing officers did not testify that the approaching officers gave chase when defendant fled. Coupled with the pursuing officer’s testimony that at the point when defendant fled, he was “free to leave,” the record at the suppression hearing undercuts any possible claim that the pursuing officers were not simply chasing a man who fled, but that they actually believed defendant to be the parolee for whom they had an arrest warrant. People v Jones, 2025 NY Slip Op 01524, Fourth Dept 3-14-25

Practice Point: Consult this decision for insight into the validity of an arrest of the “wrong person,” i.e., the approach, pursuit and arrest of one person based upon an arrest warrant for issued for another.

 

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THE MAJORITY CONCLUDED THE HEARSAY ALLEGATIONS IN THE SEARCH WARRANT APPLICATION PROVIDED PROBABLE CAUSE TO SEARCH TWO DIFFERENT RESIDENCES; THE TWO-JUSTICE DISSENT ARGUED THE APPLICATION DID NOT PROVIDE PROBABLE CAUSE TO SEARCH ONE OF THE TWO RESIDENCES, I.E., THERE WERE NO DETAILS DESCRIBING THE NARCOTICS THE INFORMANT OBSERVED IN THE RESIDENCE AND NO INDICATION WHEN THE OBSERVATON WAS MADE (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the hearsay allegations in the search warrant application were sufficient to provide probable cause to search two different residences. The two dissenting justices agued that the search warrant application focused on one residence and barely mentioned the other:

From the dissent:

Here, the warrant application in question concerned two addresses, i.e., 205 Curtis Street and 215 Curtis Street, but contained a mere two statements based on the confidential informant’s claimed knowledge regarding 205 Curtis Street. Specifically, it stated that “[t]he [confidential informant] has been inside 205 Curtis St[reet] on multiple occasions and is aware that narcotics are kept inside the location,” and that “[t]he [confidential informant] . . . has been to 205 and 215 Curtis Street multiple times for narcotics transactions.” The remaining contents of the six-page, single-spaced warrant application focused on 215 Curtis Street.

… [W]e agree with defendant that the hearsay information regarding 205 Curtis Street does not provide the requisite basis of knowledge justifying the issuance of the search warrant for that address … . First, we note that the application neither details any transaction that occurred at 205 Curtis Street, nor specifies the type of narcotic exchanged during such transaction. Second, no time frame is provided for the hearsay statements concerning 205 Curtis Street, and it is therefore entirely possible that the unspecified drug transaction occurred years or decades ago. In fact, the warrant application entirely fails to set forth what was actually observed by the informant at 205 Curtis Street or when it was observed … . On this record, we conclude that there is no basis provided to support the informant’s claimed awareness of narcotics at 205 Curtis Street. People v Berry, 2025 NY Slip Op 01523, Fourth Dept 3-14-25

Practice Point: According to the dissent, the bare allegation the informant observed narcotics in a residence, without any detail and without any time frame, did not provide probable cause for the search of that residence.

 

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THERE WAS NO EVIDENCE SUBSTANTIATING THE PURPORTED “OFF THE RECORD” STIPULATION OF SETTLEMENT; THE TERMS OF THE SETTLEMENT AGREEMENT WERE NEVER FILED WITH THE COUNTY CLERK; A PRETRIAL CONFERENCE WITH THE JUDGE’S CLERK DOES NOT MEET THE “OPEN COURT” REQUIREMENT FOR A STIPULATION OF SETTLEMENT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the purported stipulation of settlement of this legal malpractice action did not meet the requisite criteria and could not be enforced:

It is well settled that ” ‘[a]n oral stipulation of settlement that is made in open court and stenographically recorded is enforceable as a contract and is governed by general contract principles for its interpretation and effect’ ” (… see generally CPLR 2104). Here, however, in support of her cross-motion, plaintiff failed to attach any transcripts or other evidence substantiating the purported settlement agreement. Indeed, we conclude that “[t]he record provides no basis for concluding that an enforceable stipulation was entered into between the parties” inasmuch as “[p]ertinent discussions took place off the record” … . Plaintiff also failed to establish that the terms of the settlement agreement were ever filed with the county clerk (see CPLR 2104 …).

Even if plaintiff had submitted written evidence of the parties’ purported stipulation of settlement, we conclude that said stipulation was not entered in “open court” inasmuch as there is no dispute that the alleged settlement was reached during a pretrial conference with the court’s law clerk … . Indeed, the “open court requirement . . . is not satisfied in locations without a Justice presiding . . . , and it is not satisfied during less formal stages of litigation, such as a pretrial conference” … . Guzman-Martinez v Rosado, 2025 NY Slip Op 01483, Fourth Dept 3-14-25

Practice Point: Consult this decision for the criteria for an enforceable stipulation of settlement, i.e., a transcript or other evidence of the terms of any oral agreement, the filing of the terms of the agreement with the county clerk, and the entering of the agreement in open court with a judge presiding.

 

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THE OFFICER’S TESTIMONY HE COULD NOT SEE INSIDE THE CAR FROM A DISTANCE OF 10 TO 15 FEET PROVIDED PROBABLE CAUSE TO STOP THE CAR FOR A “TINTED WINDOWS” VIOLATION; THE DISSENT ARGUED IT WAS DARK AT THE TIME OF THE STOP AND THE OFFICER DID NOT LINK HIS INABILITY TO SEE INSIDE THE CAR TO THE TINTED WINDOWS AS OPPOSED TO THE AMBIENT DARKNESS (FOURTH DEPT). ​

The Fourth Department, affirming County Court, over a dissent, determined the officer’s testimony he could not see the driver’s face from a distance of 10 to 15 feet demonstrated probable cause of a “tinted window” violation which supported the vehicle stop. The dissent argued the officer’s testimony was insufficient to demonstrate probable cause because it was dark at the time of the stop and the officer did not link his inability to see inside the car to the tinted windows, as opposed to the ambient darkness:

Here, the officer who initiated the stop testified at the suppression hearing that he looked directly at the driver’s side window of the vehicle defendant was operating, that he did so from a distance of no more than 10 to 15 feet, and that he was “unable to see the driver of the vehicle” through the window. We conclude that the officer’s testimony contained sufficient facts to establish that he reasonably believed that the windows were excessively tinted in violation of Vehicle and Traffic Law § 375 (12-a) (b) (2) … .

From the dissent:

The officer who attempted to initiate the stop of defendant’s vehicle testified that he believed any level of tint on the front driver’s side window or the front passenger window would be illegal and that the actual tint on the vehicle’s windows was never tested with a tint meter. He further testified that he initially observed the vehicle when it was dark outside and that he was unable to see the driver inside the vehicle. At no point did the officer testify that it was the window tint, as opposed to the ambient darkness, that prevented him from seeing the driver. The officer’s failure to link the allegedly excessive tint with his inability to see into the vehicle distinguishes this case from those cited by the majority, in which the arresting officer “testified at the suppression hearing that he could tell the window tints were too dark because he could not see into the [vehicle]” … or “specifically testified that the driver’s side windows were ‘so dark that [he] was unable to actually see the operator of the vehicle as the vehicle was going by’ ” … . Because the officer’s testimony here failed to link his conclusory belief that the windows were excessively tinted with an objective fact in support of that belief, I conclude that the People failed to meet their burden … . People v Hall, 2025 NY Slip Op 01457, Fourth Dept 3-14-25

Practice Point: Consult this decision for some insight into the proof required for a valid “tinted-windows-violation” traffic stop.

 

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DEFENDANT’S MOTION TO VACATE THE 1994 ATTEMPTED MURDER CONVICTION ON “ACTUAL INNOCENCE” GROUNDS SHOULD NOT HAVE BEEN SUMMARILY DENIED; DEFENDANT SUBMITTED SUFFICIENT EVIDENCE TO WARRANT A HEARING, I.E., EVIDENCE A DECEASED COOPERATING WITNESS HAD CONFESSED TO BEING THE SHOOTER (FIRST DEPT).

The First Department determined the evidence of “actual innocence” submitted in defendant’s motion to vacate the 1994 attempted murder conviction warranted a hearing:

The court … should have ordered a hearing on defendant’s actual innocence claim … . Defendant presented evidence, supported by the statements of the Assistant United States Attorneys who handled the cooperator, that, in 1998, after defendant’s trial, the cooperator credibly exonerated defendant by admitting to the shooting. Although the cooperator has died, his confession would be admissible as a statement against penal interest … . Accordingly, the court lacked grounds for a summary denial under CPL 440.30(4)(b). People v Davila, 2025 NY Slip Op 01300, First Dept 3-6-25

Practice Point: If a motion to vacate a conviction is supported by credible evidence of “actual innocence,” a hearing is necessary before ruling on the motion.​

 

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