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THE CONFLICTING EXPERT REPORTS AND OTHER EVIDENCE RAISED A QUESTION OF FACT WHETHER THE TRAFFIC ACCIDENT CAUSED SERIOUS INJURY DESPITE PLAINTIFF’S DECEDENT’S PREEXISTING CONDITIONS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Michael, determined Supreme Court properly denied summary judgment on the question whether plaintiff’s decedent, Kenneth Moore, suffered “serious injury” within the meaning of Insurance Law 5102(d) in a traffic accident. The conflicting expert evidence raised questions of fact about whether the accident exacerbated preexisting conditions, including arthritis

… [A] preexisting condition does not foreclose a finding that the plaintiff’s injuries were causally related to the subject accident … . Where a defendant meets its prima facie burden in establishing that the preexisting condition is the cause of the plaintiff’s injuries, the burden shifts to the plaintiff to present evidence addressing causation … .

To meet his burden, the plaintiff must address the evidence of preexisting conditions “and explain why [his] current reported symptoms [are] not related to the preexisting conditions” or how the accident aggravated his underlying degenerative conditions … . * * *

… [P]laintiff’s evidence, including conflicting expert reports; testimony as to Moore’s increased pain and diminished physical capabilities; and medical records showing a new course of treatment, new diagnoses, and aggravated injuries, raised issues of fact as to whether Moore’s worsened physical condition was causally related to the accident … . Moore v Maley, 2025 NY Slip Op 05304, First Dept 10-2-25

Practice Point: Consult this opinion for an an explanation of how to deal with a plaintiff’s preexisting conditions when assessing whether plaintiff has suffered “serious injury” in a traffic accident within the meaning of the Insurance Law.

 

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AN ATTORNEY SHOULD BE DISQUALIFIED UNDER THE ADVOCATE-WITNESS RULE WHEN THE ATTORNEY’S TESTIMONY IS NECESSARY TO PROVE ISSUES IN DISPUTE, NOT THE CASE HERE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the husband’s attorney, Smith, should not have been disqualified on the ground he would be called as a witness at trial. The appellate division determined Smith’s testimony was not relevant to the financial issues in the divorce action. Therefore Smith should not have been disqualified on the basis that his testimony would be necessary at trial:

The advocate-witness disqualification rules contained in the Code of Professional Responsibility provide guidance, but are not binding authority for courts in determining whether a party’s attorney should be disqualified during litigation … . “Disqualification of a law firm during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants. Disqualification denies a party’s right to representation by the attorney of its choice” … . In considering whether to disqualify counsel, the court must consider a litigant’s right to select his own counsel and the fairness and effect of disqualification in the particular factual setting … . Whether to disqualify an attorney rests in the sound discretion of the trial court … . However, an attorney should be disqualified only when his or her testimony is necessary to prove the issues in dispute … . The party seeking or supporting disqualification need not show that counsel’s continued representation would prejudice his or her client where the court finds that counsel’s testimony is necessary on his or her client’s behalf … . De Luca v De Luca, 2025 NY Slip Op 05146, First Dept 9-25-25

Practice Point: Here the proposed testimony by the attorney was not necessary to prove issues in dispute. Therefore the attorney should not have been disqualified.

 

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EXCESSIVE ABSENCES FROM SCHOOL SUPPORTED THE EDUCATIONAL NEGLECT FINDINGS, BUT NEGLECT BECAUSE OF MENTAL ILLNESS WAS NOT DEMONSTRATED (FIRST DEPT).

The First Department, reversing (modifying) Family Court, determined that, although the petitioner demonstrated the parents educationally neglected the children, the petitioner did not demonstrate father neglected the children because of his mental illness:

A preponderance of the evidence supports Family Court’s finding that parents educationally neglected the children (see Family Court Act §§ 1012[f][i][B], 1046[b][i]). During the fall 2022 term and the previous school year, both children were absent more than half of the school days, and evidence of excessive unexcused absences from school will support a finding of neglect … . Even crediting the father’s testimony that he made efforts to ensure the children attended school, we find that petitioner provided sufficient evidence to establish that the father educationally neglected the children … . Despite years of outreach from the children’s schools, the father failed to follow up, attend important meetings, or obtain proffered services. School records indicated that the children’s academic progress suffered due to excessive absences and tardiness; both children were failing classes and not progressing towards annual goals. Under these circumstances, even though the father spoke with school personnel, inquired about assistance, and ultimately requested a reevaluation for one of the children, he nevertheless failed to take adequate steps to prevent the children from experiencing significant educational delays resulting from poor attendance … .

… [P]etitioner did not satisfy its burden to prove by a preponderance of the evidence that the father neglected the children because of his mental illness … . Although the father did not dispute that he suffered from depression, he testified that he was engaged in mental health treatment, including therapy and medication, and petitioner did not provide either documentary evidence or expert testimony demonstrating that the father’s mental illness interfered with his “judgment and parenting abilities” or connecting the father’s depression with his inadequate efforts to ensure the children attended school, thereby placing the children at imminent risk of physical, mental or emotional impairment” … . Matter of S.M.W. (J.R.M.), 2025 NY Slip Op 05181, First Dept 9-25-25

Practice Point: Consult this decision for a rare discussion of the criteria for “educational” and “mental-illness” neglect of children.

 

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THE WORKERS’ COMPENSATION BOARD DID NOT MAKE SUFFICIENT FINDINGS UNDER THE “ABC” TEST FOR DETERMINING WHETHER CLAIMANT WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR, MATTER REMITTED (THIRD DEPT). ​

The Third Department, reversing the Workers’ Compensation Board and remitting the matter, determined the Board did not properly apply the so-called “ABC” test to decide whether claimant was an employee or an independent contractor:

… [O]ur review of the Board’s decision reflects that it did not set forth sufficient findings of fact regarding its assessment of whether the three-part ABC test was satisfied in order to determine if claimant himself was an independent contractor. To that end, to establish a person as an independent contractor under the three-part ABC test, it must be demonstrated that “(a) the individual is free from control and direction in performing the job, both under his or her contract and in fact; (b) the service must be performed outside the usual course of business for which the service is performed; and (c) the individual is customarily engaged in an independently established trade, occupation, profession, or business that is similar to the service at issue” (Labor Law § 861-c [1]). * * *

In our view, given the limited findings by the Board, it is unclear whether the Board considered the ABC factors in determining that claimant’s status as an employee was not rebutted. As such, and aware that the role of this Court is not to independently review and weigh the conflicting evidence to determine whether the various factors of the ABC test … — including who directed and controlled the work being performed in installing the trusses — were met, the Board’s decision is not supported by substantial evidence and the matter must be remitted to the Board for proper consideration of whether the ABC test was satisfied in order to rebut the presumption of an employer-employee relationship. Matter of Trickey v Black Riv. Plumbing, Heating & A.C., Inc., 2025 NY Slip Op 05133, Third Dept 9-25-25

Practice Point: Consult this decision for an explanation of the “ABC” test for whether a claimant is an employee or independent contractor.

 

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DEFENDANT PERFORMED A RAP SONG DURING A RECORDED PHONE CALL MADE FROM JAIL; AN INVESIGATOR WAS CALLED AS AN EXPERT TO INTERPRET THE LYRICS; HIS INTERPRETATION MATCHED THE PEOPLE’S FACTUAL THEORY OF THE CASE; BECAUSE THE INVESTIGATOR WAS NOT ADEQUATELY QUALIFIED AS AN EXPERT, DEFENDANT WAS DENIED A FAIR TRIAL (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction on the ground he was not afforded a fair trial, in a full-fledged opinion by Justice Warhit, determined the “expert” evidence offered to interpret the meaning of a rap song defendant performed over a recorded phone call during his pretrial incarceration was inadmissible. The police investigator called upon to interpret the lyrics was not qualified to do so:

… [T]he investigator was unqualified to offer expert opinion testimony regarding the meaning of the rap lyrics. Additionally, while the investigator’s initial interpretations of the lyrics were often varied and reflected the lyrics’ inherent ambiguity, the investigator’s ultimate proffered opinions precisely and remarkably mirrored the People’s exact factual theory of the case. Moreover, the investigator’s interpretations of the lyrics also implied that the defendant had committed prior bad acts and crimes that were not charged in the indictment. Accordingly, we find that the defendant was deprived of a fair trial by the admission of this evidence … . * * *

… [T]o be qualified to offer expert opinion testimony, the witness must possess “the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” … . “The expert’s opinion, taken as a whole, must also reflect an acceptable level of certainty in order to be admissible” … .

… [T]he People failed to establish that their proffered expert witness was qualified to render an expert opinion as to the meaning of the rap lyrics. After the Supreme Court gave the People “ten minutes” to “get somebody,” the People proffered the investigator as their expert. Although the investigator testified that he had attended trainings regarding gangs, including “gang lingo,” this case did not involve gangs … . Additionally,]the investigator acknowledged that rap lyrics are not always literal and cannot be interpreted like a regular conversation. The investigator’s testimony regarding his exposure and/or familiarity with rap music from watching YouTube videos and “music videos posted by alleged gang members, and their ilk,” which he stated could largely be understood using “common sense,” was insufficient to demonstrate that he possessed the requisite skill, training, knowledge, and/or experience necessary to render a reliable opinion regarding the meaning of the rap lyrics at issue in this case … . People v Reaves, 2025 NY Slip Op 05107, Second Dept 9-24-25

Practice Point: Although rap lyrics have been admitted in evidence in criminal trials, here the investigator who interpreted the lyrics was not qualified to do so. It was reversible error to admit the “expert’s” opinion about the meaning of the lyrics.

 

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THE ISSUES OF NEGLIGENCE AND PROXIMATE CAUSE WERE NOT INTERTWINED; THE VERDICT FINDING DEFENDANT NEGLIGENT BUT THAT THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE INJURY SHOULD NOT HAVE BEEN SET ASIDE; IN RESPONSE TO A JURY NOTE, THE JUDGE PROPERLY TOLD THEM THEY COULD FIND THAT THE ACCIDENT DID NOT HAPPEN (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, reversing Supreme Court, determined the motion to set aside the verdict finding the defendant negligent but that the negligence was not the proximate cause of the accident should not have been set aside. The plaintiff alleged repair to the steering mechanism of his van was negligently done, that he suddenly lost the ability to steer the van and it crashed into a concrete barrier which was parallel to the roadway. The evidence was such that the jury could have found the accident did not happen in the way alleged by the plaintiff. The damage to the van did not appear to be consistent with the accident as described by plaintiff. When the jury sent a note asking whether they could find that the accident didn’t happen, the trial judge properly told them they could so find:

The narrow question we must address to determine this appeal is whether the Supreme Court properly, in effect, granted those branches of the plaintiff’s motion which were pursuant to CPLR 4404(a) to set aside so much of the jury verdict as, upon finding that the defendants were negligent, found that such negligence was not a substantial factor in causing injury to the plaintiff … . We answer this question in the negative, holding that the court erred by, in effect, granting those branches of the plaintiff’s motion where, as here, issues of negligence and proximate cause are not inextricably intertwined as a result of there being a rational view of the evidence that the plaintiff’s accident did not occur as claimed. Additionally, this appeal provides the opportunity to state our view that, in a personal injury action where there were questions about whether the alleged injury-producing event actually occurred as claimed by the plaintiff here, it was not error for the court to respond to a jury note by instructing that the jury could consider whether the alleged accident occurred. * * *

If, as the Supreme Court concluded in this instance, the jury’s deliberation involved an uncomplicated determination of whether the defendants had negligently installed the pitman arm of the plaintiff’s van, which, in turn, resulted in the plaintiff’s loss of steering and the accident as described, then the jury’s finding of negligence without a finding of proximate cause would be inconsistent. But the trial evidence was not so uncomplicated as to be subject to only one view of the events. Here, viewing the evidence in the light most favorable to the defendants, as we must in these instances, there was a valid line of reasoning and permissible inferences upon which the jury could parse the alleged negligent repair from the alleged proximate cause and determine that while the defendants were negligent, they were not a proximate cause of the plaintiff’s claimed accident … . Krohn v Schultz Ford Lincoln, Inc., 2025 NY Slip Op 05072, Second Dept 9-24-25

Practice Point: Here the jury concluded the defendant’s repair of plaintiff’s van was negligent, but they also concluded the negligence was not the proximate cause of the accident. That verdict should not have been set aside. The evidence was such that the jury could have found that the accident as described by the plaintiff didn’t happen. The judge properly instructed them in response to a note that they could so find.

 

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DEFENDANT AND A WITNESS SAID THE LIGHT WAS RED, PLAINTIFF SAID THE LIGHT WAS GREEN, SUMMARY JUDGMENT IS PRECLUDED, CREDIBILTY CANNOT BE CONSIDERED (FIRST DEPT).

The First Department, reversing Supreme Court in this intersection bicycle-vehicle accident case, reminds us that credibility plays no role in a summary judgment ruling. Plaintiff, the bicyclist, alleged he entered the intersection with a green light. Defendant and a witness alleged plaintiff entered the intersection against a red light. The conflicting evidence required denial of defendants’ motion for summary judgment:

The parties’ conflicting versions of how the accident occurred preclude summary judgment … . It is well settled that a “court’s role in deciding a motion for summary judgment is issue finding, not issue determination. . . . Moreover, [i]t is not the court’s function on a motion for summary judgment to assess credibility” … . Plaintiff’s version of events “is not incredible as a matter of law, and the different versions of the facts submitted by the parties raise[ ] credibility questions for a jury to resolve” … . Wachtel v Alan Joel Communications, Inc., 2025 NY Slip Op 05053, First Dept 9-23-25

Practice Point: Credibility plays no role at the summary judgment stage.

 

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PLAINTIFFS’ REQUEST FOR SPECIFIED DISCOVERY IN OPPOSITION TO AN “ANTI-SLAPP-LAW” MOTION TO DISMISS SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the request for specified discovery made by plaintiffs with respect to the SLAPP (strategic lawsuits against public petition and participation) defense should have been granted:

… [I]n opposing defendants’ motion to dismiss … , plaintiffs made an alternative request for specified discovery pursuant to CPLR 3211(g)(3). In essence, a CPLR 3211(g) motion is an accelerated summary judgment motion brought in the context of a SLAPP claim … . The statute makes special provision for discovery upon an application by the party opposing the CPLR 3211(g) motion. Such discovery is tailored to aid a party in summoning “facts essential to justify its opposition” to a SLAPP claim (CPLR 3211[g][3]) and thereby show a substantial basis for their claims … .

As required by the statute, plaintiffs made their request for specified discovery under oath and with a detailed list of the depositions they seek in ascertaining who contacted the FBI, who knew what about the investigation, and when (see CPLR 3311[g][3]). Plaintiffs seek to substantiate their theory that defendants themselves instigated the FBI investigation to provide a predicate for the guardianship proceeding.

Supreme Court incorrectly held that the anti-SLAPP law did not apply, but, if it did, plaintiffs had established a substantial basis for their claims on the existing record. The court thus never reached plaintiffs’ alternative request for discovery. The parties did not brief the issue of specified discovery on the appeal. Under these circumstances, we modify Supreme Court’s denial of the motion to dismiss directed at the SLAPP claims and remand the action for discovery under CPLR 3211(g)(3) prefatory to determination of the dismissal motion. Kohler v West End 84 Units LLC, 2025 NY Slip Op 05042, First Dept 9-23-25

Practice Point: CPLR 3311[g][3] provides for discovery in the face of a motion to dismiss pursuant the anti-SLAPP statute. Here the judge’s failure to grant the discovery request required remittal.

 

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VIDEOTAPED INTERVIEWS OF RESPONDENT FATHER’S CHILDREN LED TO CRIMINAL SEXUAL ABUSE CHARGES AGAINST FATHER WHICH WERE DISMISSED BECAUSE OF A LACK OF WITNESS COOPERATION; THE VIDEOTAPED INTERVIEWS ARE NOT SUBJECT TO THE SEALING REQUIREMENT IN THE CRIMINAL PROCEDURE LAW AND CAN BE USED IN A FAMILY COURT PROCEEDING ALLEGING SEXUAL ABUSE BY FATHER (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gonzalez, determined that videotaped interviews respondent father’s children by the Manhattan Child Advocacy Center (CAC) are not subject to sealing under Criminal Procedure Law (CPL)  160.50 and therefore can be presented in a Family Court proceeding brought by the Administration for Children’s Services (ACS) alleging sexual abuse by father. The related criminal charges against father had been dismissed because of a lack of witness cooperation:

The argument advanced by ACS and the attorney for the children, which analogizes the CAC videos to 911 recordings, is persuasive. This Court has held that 911 calls are not official records within the meaning of CPL 160.50, as the 911 system serves a broader purpose than solely relating to criminal arrests and prosecutions … . Similar to a 911 call, which is handled by the NYPD and may or may not lead to a police response and criminal proceeding, a forensic interview at CAC is an initial information-gathering process, not inherently tied to any arrest or prosecution that may follow.

The recorded interviews of the children, in which they gave their own accounts of the father’s actions to an independent forensic interviewer, did not contain any information about the father’s arrest or discontinued prosecution. Sealing the videotaped interviews would undermine the CAC and multidisciplinary model. Although we recognize that there is a delicate balance between the compelling need to protect the welfare of children and the right of criminal defendants to be free from the stigma of an unsustained prosecution, CPL 160.50 should not be used to override the truth-finding and child-protective missions of the Family Court. Leah W. v Keith W., 2025 NY Slip Op 05041 First Dept 9-23-25

Practice Point: Videotaped interviews of father’s children by CAC led to criminal sex abuse charges against father which were dismissed. The videotaped interviews are not “official records and papers” subject to the sealing requirements in CPL 160.50 and therefore are available for use in related Family Court proceedings against father.

 

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THE “EXTRAORDINARY CIRCUMSTANCES” WHICH WOULD JUSTIFY RETAINING THE 17-YEAR-OLD’S BURGLARY PROSECUTION IN COUNTY COURT WERE NOT DEMONSTRATED; THE CASE SHOULD HAVE BEEN TRANSFERRED TO FAMILY COURT; THE CRITERIA FOR RETENTION IN COUNTY COURT ARE EXPLAINED IN DEPTH (THIRD DEPT).

The Third Department, reversing County Court, in a full-fledged opinion by Justice Powers, determined the People did not demonstrate “extraordinary circumstances’ justifying retaining the 17-year-old defendant’s burglary case in County Court. The matter should have been transferred to Family Court:

… [W]e agree with the Second Department’s conclusion that the Legislature intended for adolescent offenders to be prosecuted in criminal court “only in the most exceptional cases” … . * * *

As alleged in the criminal complaint, defendant and the brother stood accused of entering the dwelling of the relative and stealing unsecured firearms, which they then sold. Markedly, the relative was not home at the time and they did not forcibly enter the home. Rather, defendant’s brother — who was a willing and able participant — utilized the garage door code he had been entrusted with and they entered the home together, without causing damage to or destruction of property. Defendant also did not go on to use the firearms in the commission of some other crime nor were the firearms used by another in the commission of a crime. Instead, the firearms were sold, and then located by law enforcement not long after the sales.

These facts do not present one of the “extremely rare and exceptional cases” as was contemplated by the Legislature in enacting this legislation. In view of the foregoing, the People failed to demonstrate extraordinary circumstances existed as required to retain the matter in County Court (Youth Part) under CPL 722.23 (1) (d) … . People v Aaron VV., 2025 NY Slip Op 05018, Third Dept 9-18-25

Practice Point: Consult this decision for an in-depth discussion of the criteria for retaining a 17-year-old’s prosecution in County Court, as opposed to transferring the case to Family Court.

 

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