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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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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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