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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RENEW THE MOTION TO DISMISS THE INDICTMENT WHEN ADDITIONAL GRAND JURY TESTIMONY WAS RELEASED TO THE DEFENSE BECAUSE THE JUDGE HAD REVIEWED THE ENTIRE GRAND JURY MINUTES BEFORE DENYING THE MOTION; TWO-JUSTICE DISSENT ARGUED THE MOTION COURT WOULD HAVE BENEFITTED FROM ANOTHER ARGUMENT BASED ON THE NEWLY RELEASED EVIDENCE (FIRST DEPT).

The First Department, affirming defendant’s conviction over a two-justice dissent, determined defense counsel was not ineffective for failing to renew the defense motion to dismiss the indictment after additional grand jury testimony was released. The majority concluded there was no new evidence to support a motion to renew because the judge reviewed all the grand jury testimony before denying the motion to dismiss. The dissenters argued there was insufficient evidence defendant shared the intent of the shooter and the motion court would have benefitted from another argument where defense counsel raised the newly released grand jury evidence:

“There can be no denial of effective assistance of counsel arising from counsel’s failure to make a motion or argument that has little or no chance of success” … . Defendant cannot demonstrate that a motion to renew would have had any likelihood of success because defendant had previously moved to dismiss the indictment and the court had denied the motion after conducting an in camera review of the grand jury minutes, which included the witness’s grand jury testimony that was subsequently provided to defendant’s counsel. Thus, the court had already determined that the evidence presented before the grand jury, including the witness’s testimony, established a legally sufficient prima facie case.

Moreover, a motion for renewal “must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made available to the court” … . Although the grand jury minutes were not available to defendant’s counsel at the time the motion to dismiss was filed, the court conducted a review of the complete grand jury minutes and then denied dismissal of the indictment. Consequently, there were no additional material facts upon which defendant’s counsel could have based a motion to renew, as the witness’s grand jury testimony was already known to the court in its entirety. Therefore, defendant’s counsel’s failure to file such a motion was insufficient to render his performance ineffective under both the state and federal standards … . People v Williams, 2025 NY Slip Op 05016, First Dept 9-18-25

Practice Point: Here the majority determined a motion to renew the motion to dismiss the indictment based on grand jury testimony released after the motion argument had little chance of success because the judge had reviewed all the grand jury evidence before denying the motion. The dissenters argued the judge would have benefitted from a second argument based on the newly released testimony, and therefore defense counsel was ineffective for failing move to renew.

 

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PLAINTIFF DEMONSTRATED THAT TRADITIONAL SERVICE OF PROCESS WAS “IMPRACTICABLE;” SERVICE BY PUBLICATION SHOULD HAVE BEEN ALLOWED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff should have been allowed to serve defendants by publication. The process server made several attempts to serve Noren and Eng at addresses where they didn’t reside and attempted to learn their addresses through records searches:

The Supreme Court erred in denying, as academic, that branch of the plaintiff’s unopposed motion which was for leave to effect service on Noren and Eng by publication pursuant to CPLR 316. A court may permit service by publication, upon motion without notice, if traditional service is “impracticable” (CPLR 308[5]; see 316). “The impracticability standard does not require the applicant to satisfy the more stringent standard of due diligence under CPLR 308(4) nor make an actual showing that service has been attempted pursuant to CPLR 308(1), (2), and (4)” … . “Whether service is impracticable depends on the facts and circumstances surrounding each case” … .

Here, the Supreme Court should have permitted the plaintiff to serve Noren and Eng by publication, as the plaintiff demonstrated that it was impracticable to serve them by traditional means … . U.S. Bank Trust, N.A. v Public Admr. of Suffolk County, 2025 NY Slip Op 05009, Second Dept 9-17-25

Practice Point: Consult this decision for insight into the criteria for demonstrating traditional service of process is “impracticable” such that service by publication is appropriate.

 

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IN THIS SLIP AND FALL CASE, THE DEFECT IN THE STAIRWAY WAS TRIVIAL AS A MATTER OF LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defect in the stairway alleged to have caused plaintiff’s slip and fall was trivial as a matter of law:

,,, ” [A] property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip” … . “‘A defendant seeking dismissal of a complaint on the basis that [an] alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact'” … . “In determining whether a defect is trivial, the court must examine all of the facts presented, including the ‘width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury'” … . “There is no ‘minimal dimension test’ or ‘per se rule’ that the condition must be of a certain height or depth in order to be actionable … . “‘Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable'” … .

Here, the photographs of the allegedly dangerous condition, which included measurements taken by the plaintiff’s investigator, revealed that the condition on which the plaintiff allegedly fell was depressed approximately 3/16 of an inch at the edge of the stair on which she fell. Moreover, the plaintiff testified that she had previously traversed the stairway without incident, was aware of the condition of the steps, and was looking down at the stairs as she carried a queen-size comforter when she fell. Under these circumstances, the defendants established, prima facie, that any defect that existed was trivial as a matter of law … . Rene v Livingston Gardens, Inc., 2025 NY Slip Op 05004, Second Dept 9-17-25

Practice Point: Consult this slip and fall decision for an example of a defect in a stairway deemed trivial as a matter of law.

 

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THE COMMISSIONER’S FAILURE TO REVIEW THE HEARING OFFICER’S DETAILED DECISION BEFORE TERMINATING THE PETITIONER’S EMPLOYMENT RENDERED THE COMMISSIONER’S DETERMINATION “UNAVOIDABLY ARBITRARY” (THIRD DEPT). ​

The Third Department, reversing Supreme Court in this Article 78 proceeding, determined the respondent Panunzio, Commissioner of the City of Albany’s Department of General Services, did not review the hearing officer’s detailed decision before terminating petitioner’s employment with the city. Therefore the Commissioner’s determination was “arbitrary” and the Article 78 petition should not have been dismissed:

… [F]ollowing a disciplinary hearing held pursuant to Civil Service Law § 75 (2), a hearing officer “shall make a record of such hearing which shall, with his [or her] recommendations, be referred to such officer or body [having the power to remove the employee] for review and decision” … . The resulting administrative]determinations are entitled to a presumption of regularity … and, “in the absence of a clear revelation that the administrative body made no independent appraisal and reached no independent conclusion, its decision will not be disturbed” … . …

Panunzio did not … review the Hearing Officer’s detailed and thorough decision, as such was read into the record at the hearing and the hearing transcript was not received until after the determination terminating petitioner had already been issued. As Panunzio was unable to review the Hearing Officer’s complete report and findings, respondents had “no basis upon which to act” and their determination was thus “unavoidably . . . arbitrary” … . To be sure, a reviewing officer need not review all evidence presented before the hearing officer or defer to his or her findings … . Nevertheless, to permit respondents to issue a determination without even having the availability of the Hearing Officer’s complete report and findings would render the requirements of Civil Service Law § 75 (2) meaningless … . Matter of Alexander v City of Albany, 2025 NY Slip Op 04949, Third Dept 9-11-25

Practice Point: Hear the Commissioner terminated petitioner’s employment without first reading the detailed decision by the hearing officer, which the Commissioner is required to do by statute. The Commissioner’s determination was thereby rendered “arbitrary.” Petitioner’s Article 78 petition should not have been dismissed.

 

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THE POLICE OFFICER’S WITNESSING THE EXCHANGE OF AN UNIDENTIFIED OBJECT PROVIDED PROBABLE CAUSE FOR A DRUG TRANSACTION ARREST; BECAUSE THE RECORD EVIDENCE SUPPORTED THE DENIAL OF SUPPRESSION, THE MIXED QUESTION OF LAW AND FACT WAS BEYOND FURTHER REVIEW BY THE COURT OF APPEALS (CT APP).

The Court of Appeals, affirming Supreme Court’s denial of the suppression motion, determined there was sufficient evidence in the record to support the motion court’s ruling. Therefore the mixed question of law and fact could not be reviewed further by the Court of Appeals. The issue was whether witnessing the exchange of an unidentified object provided probable cause to arrest for a drug transaction:​

The “factors relevant to assessing probable cause include the exchange of currency; whether the particular community has a high incidence of drug trafficking; the police officer’s experience and training in drug investigations; and any additional evidence of furtive . . . behavior on the part of the participants” … . Contrary to defendant’s contention, the absence of a “telltale sign” of a drug transaction is not fatal to a finding of probable cause. As we have explained, “a ‘telltale sign’ of narcotics strongly suggests an illicit drug transaction,” but it is not “an indispensable prerequisite to probable cause” … . Probable cause may also “be found on the basis of ‘indicia of a drug transaction’ known to ‘an experienced officer trained in the investigation and detection of narcotics,’ which include ‘handling an unidentified object in a manner typical of a drug sale'” … .

The testifying officer had formal training and experience in observing narcotics transactions, and he and his partners were stationed in an area known for drug-related activity. … [I]n the six months prior to defendant’s arrest, the testifying officer had made about ten narcotics-related arrests within two blocks of the motel. The officers also saw defendant “engage in [ ] behavior consistent with that of a narcotics seller” … , including nervous glancing, reaching into his waistband without looking down, and two separate interactions with the same woman, each involving an exchange of an object. Although the officers did not identify the object the woman acquired during the second interaction until after defendant’s arrest, the woman’s clenched fist and rapid departure indicated her desire to conceal it. People v Tapia, 2025 NY Slip Op 04940, CtApp 9-11-25

Practice Point: Where an appeal presents a mixed question of law and fact (here, whether there was probable cause for a drug transaction arrest based on the witnessed exchange of an unidentified object), the review by the Court of Appeals il limited to whether the motion court’s ruling has support in the record.​

 

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DEFENSE COUNSEL’S REMARKS ALLEGING PLAINTIFF AND HER ATTORNEY FABRICATED EVIDENCE IN THIS SIDEWALK SLIP AND FALL CASE DENIED PLAINTIFF A FAIR TRIAL (SECOND DEPT).

The Second Department, reversing defendant’s verdict in this sidewalk slip and fall case, determined defense counsel’s remarks in the opening and summation, alleging that the plaintiff and her lawyer, fabricated the account of where she fell, deprived plaintiff of a fair trial:

… [D]uring his opening statement, the defendant’s attorney made improper remarks accusing the plaintiff’s attorney of assisting the plaintiff with fabricating her account of where she fell, stating, among other things, that after the plaintiff told her attorney what street she fell on, “they went out to look for the worst spot on the street and they found it.” The defendant’s attorney further stated that the location of the fall claimed by the plaintiff was “lawyer-created fantasy” … . Similarly, on summation, the defendant’s attorney improperly stated that the plaintiff “changed her testimony based upon something her lawyer said to her,” and “although ‘perjury’ might be a little of a harsh word . . . she certainly testified willfully falsely” … . In addition, the defendant’s attorney improperly injected his own beliefs on summation, stating, “I truly don’t believe [the accident] happened here” and, after accusing the plaintiff of testifying falsely, stating, “I felt bad for [the defendant]. I felt bad for the whole system” … . Moreover, the defendant’s attorney inappropriately encouraged the jurors to speculate that the plaintiff declined to call an investigator as a witness at trial because the investigator would have testified unfavorably to the plaintiff … . Further, the defendant’s attorney improperly appealed to the passions of the jurors by stating that “[e]verything [the defendant has] worked for for his entire life is at risk on this trial” and that “[the plaintiff] wants to take my client’s property or money” … . Under the circumstances of this case, “‘the comments of the [defendant’s] counsel . . . were not isolated, were inflammatory, and were unduly prejudicial'” and “‘so tainted the proceedings as to have deprived [the plaintiff] . . . of a fair trial'” … . Windham v Campoverde, 2025 NY Slip Op 04939, Second Dept 9-10-25

Practice Point: Here counsel’s remarks in the opening and summation irreparably tainted the proceedings requiring a new trial.

 

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PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT SUBMIT ADEQUATE PROOF THAT THE NOTICE OF DEFAULT WAS PROPERLY MAILED TO AND RECIEVED BY THE DEFENDANT AS REQUIRED BY THE MORTGAGE AGREEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this foreclosure action did not prove the notice of default was mailed to defendant as required by the mortgage agreement:

The plaintiff’s submissions were insufficient to establish that a notice of default in accordance with section 22 of the mortgage agreement was sent to the defendant as required by section 15 of the mortgage agreement. Section 15 of the mortgage agreement provides that notice to the borrower is considered sent “when mailed by first class mail or when actually delivered to [the borrower’s] notice address if sent by other means.” The affidavit of mailing was insufficient to establish a mailing by either first-class or certified mail. Although [the affidavit] asserted personal knowledge of the mailing, the affidavit was dated nine months after the date on which the notices of default were purportedly mailed, and the affidavit was unsupported by any contemporaneous documentation … . The certified mail receipts submitted by the plaintiff were not stamped or postmarked, and the domestic return receipts were unsigned. Thus, there was inadequate proof that the notices of default were actually delivered to the defendant. Further, although mailing may also be established by proof of a standard office mailing procedure … , in her affidavit [the foreclosure specialist] failed to make the requisite showing that she was familiar with the mailing practices and procedures of the plaintiff’s counsel, which apparently mailed the notices of default … and, in any event, failed to describe a standard office mailing procedure designed to ensure that items are properly addressed and mailed … . Wilmington Trust, N.A. v Singh, 2025 NY Slip Op 04938, Second Dept 9-10-25

Practice Point: Once again, failure to prove mandatory notices were properly mailed and received by the defendant in a foreclosure action required reversal of the judgment of foreclosure.

 

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THE JUDGE IN THIS SIDEWALK SLIP AND FALL CASE FAILED TO ADEQUATELY EXPLAIN TO THE JURY THE DIFFERENT DUTIES OWED BY THE TENANT AND THE OWNER OF THE BUILDING ABUTTING THE SIDEWALK; THE MOTION TO SET ASIDE THE PLAINTIFF’S VERDICT SHOULD HAVE BEEN GRANTED; IN ADDITION, THE SECOND DEPARTMENT HELD DAMAGE AWARDS FOR PLAINTIFF’S INJURED ANKLE WERE EXCESSIVE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to set aside the verdict in this slip and fall case should have been granted. The defendants are the owner and tenant in the building abutting the allegedly defective sidewalk where plaintiff fell. The judge’s charge to the jury did not adequately explain how defendants’ duties differed as tenant and landowner. The Second Department also held the damage awards were excessive:

… Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 4404(a) to set aside the verdict on the issue of liability in the interest of justice and for a new trial on the issue of liability. In charging the jury, the court failed to differentiate between White Castle [tenant] and Asaro [landowner], and failed to identify how their duties differed as tenant and as landowner, respectively. Thus, the court did not “adequately convey[ ] the sum and substance of the applicable law to be charged” … . Due to the possibility that this conflation may have prejudiced either defendant or both defendants, each defendant is entitled to a new trial on the issue of liability against it … . Rendon v White Castle Sys., Inc., 2025 NY Slip Op 04925, Second Dept 9-10-25

Practice Point: Here the jury instructions did not clearly explain the different duties owed by a tenant versus a landowner with respect to a defective sidewalk abutting the building. The inadequate instructions required that the plaintiff’s verdict in this slip and fall case be set aside.

 

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A PROPER FOUNDATION WAS NOT LAID FOR THE BUSINESS RECORDS RELIED UPON BY THE PLAINTIFF; THEREFORE THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE WERE NOT MET AND PLAINTIFF’S SUMMARY JUDGMENT MOTION IN THIS BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the business records relied upon by plaintiff in this breach of contract action were not supported by a sufficient foundation. Therefore, under the criteria for the business records exception to the hearsay rule, the documents were inadmissible hearsay and could not support plaintiff’s summary judgment motion:

“‘Records made in the regular course of business are hearsay when offered for the truth of their contents'” … . “When a party relies upon the business records exception to the hearsay rule in attempting to establish its prima facie case, ‘[a] proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures'” … .

In support of its motion for summary judgment on the complaint, the plaintiff submitted an affidavit of Denine Chevillot Knowles, its vice president. Though Knowles attested that she had “personal knowledge of the relevant business practices of Plaintiff,” she did not attest that the records submitted in support of the motion were “made in the regular course of business” and were “needed and relied on in the performance of functions of the business,” that it was “the regular course of such business to make the record[s],” or that the records were “made at or about the time of the event being recorded” … . Thus, Knowles failed to lay a proper foundation for the admission of any records concerning the defendants’ payment history and default … . Accordingly, the plaintiff failed to demonstrate that the records relied upon in the affidavit were admissible under the business records exception to the hearsay rule. HSBC Bank USA, N.A. v Vasishta, 2025 NY Slip Op 04885, Second Dept 9-10-25

Practice Point: Business records are hearsay. To be admissible the criteria for the business records exception to the hearsay rule must be met. Consult this decision for the foundation requirements for the admissibility of business records.​

 

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ALTHOUGH PLAINTIFF IN THIS DEFAMATION ACTION WAS ALLOWED TO SUE UNDER A PSEUDONYM, THE TEMPORARY RESTRAINING ORDER PROHIBITING DEFENDANTS FROM REVEALING PLAINTIFF’S IDENTITY TO THIRD PARTIES, INCLUDING WITNESSES AND INVESTIGATORS, WAS AN UNCONSTITUTIONAL PRIOR RESTRAINT OF SPEECH (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the temporary restraining order prohibiting defendants from revealing plaintiff’s identity to third parties in this defamation action was an unconstitutional prior restraint on speech. Plaintiff had been allowed to sue under a pseudonym:

… Supreme Court erred in granting that branch of the plaintiffs’ motion which was for a temporary restraining order prohibiting the defendants from disclosing the plaintiffs’ identities to third parties, sharing any statements or documents regarding the instant action, or discussing the instant action. “A prior restraint on speech is a law, regulation or judicial order that suppresses speech on the basis of the speech’s content and in advance of its actual expression” … . “Any imposition of prior restraint, whatever the form, bears a ‘heavy presumption against its constitutional validity, and a party seeking to obtain such a restraint bears a correspondingly heavy burden of demonstrating justification for its imposition'” … . An injunction issued in the area of First Amendment rights under the United States Constitution “must be tailored as precisely as possible to the exact needs of the case” … . Here, the Supreme Court’s temporary restraining order was overbroad, such that it prevented the defendants from discussing the instant action with third-party witnesses or disclosing the plaintiffs’ names for investigative purposes … . Doe v Eliyas, 2025 NY Slip Op 04876, Second Dept 9-10-25

Practice Point: Consult this decision for insight into when a restraining order prohibiting revealing the identity of a plaintiff suing under a pseudonym is an unconstitutional prior restraint of speech.

 

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