You are here: / Evidence
, ,

THE FOSTER CARE AGENCY DID NOT PROVE IT MADE DILIGENT EFFORTS TO ENCOURAGE AND STRENGTHEN THE PARENT-CHILD RELATIONSHIP BEFORE FILING THE PETITION TO TERMINATE MOTHER’S PARENTAL RIGHTS; PETITION DISMISSED (SECOND DEPT).

The Second Department, reversing Family Court, determined the petitioner foster-care-agency in this termination of parental rights proceeding did not demonstrate it made diligent efforts to encourage and strengthen the parent-child relationship before filing the petition:

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

Here, the petitioner failed to meet its initial burden of establishing by clear and convincing evidence that it exercised diligent efforts to strengthen the parental relationship between the mother and the child (see Social Services Law § 384-b[7][a], [f]). The evidence adduced at the fact-finding hearing failed to establish that the petitioner assisted the single, working mother with obtaining childcare services, followed up with her therapy progress for six months, or built a rapport with her in order to engage in cooperative dialogue…. . Matter of Syiah C.M. (Shatasia C.M.), 2025 NY Slip Op 04095, Second Dept 7-9-25

Practice Point: Consult this decision for some insight into what a foster care agency must try to do to strengthen the parent-child relationship before filing a petition to terminate a mother’s parental rights.

 

,

A CANINE SNIFF OF A PERSON IS A SEARCH AND REQUIRES PROBABLE CAUSE TO BELIEVE THE SUBJECT HAS COMMITTED A CRIME, THEREBY TRIGGERING THE NECESSITY FOR A SEARCH WARRANT OR AN EXCEPTION TO THE WARRANT REQUIREMENT (THIRD DEPT). ​

The Third Department, reversing County Court and remitting the matter, in a full-fledged opinion by Justice Ceresia, determined probable cause to believe a crime has been committed is the proper standard for a canine sniff of a person. Here defendant was asked to step out of his vehicle. The canine put his nose in defendant’s groin/buttocks area and alerted for the presence of narcotics:

… [A] canine sniff of the body is far more intrusive than that of a vehicle exterior or common hallway, and an individual has a correspondingly greater expectation of privacy in one’s own body than in those settings. Indeed, when it comes to canine sniff searches, it would be difficult to imagine one more intrusive or involving a more significant privacy right than the one at issue here. Accordingly, we conclude that the serious “intrusion on personal privacy, security, and dignity” that accompanies a canine sniff of the body can only be justified at DeBour level 4 — namely, upon probable cause to believe that the target of the sniff search has committed a crime … .

… [G]iven the fact that County Court only evaluated the evidence under the lesser standard of reasonable suspicion, we are constrained to remit this case to that court for a determination of whether the police had probable cause to perform the canine sniff search of defendant’s body …thereby triggering the necessity of either a search warrant or an exception to the warrant requirement … .  People v Butler, 2025 NY Slip Op 04052, Third Dept 7-3-25

Practice Point: It is hard to believe the law on this topic is just now being settled. A canine sniff of a person is a search requiring probable cause to believe the subject has committed a crime, thereby triggering the necessity for a search warrant or an exception to the warrant requirement.

 

,

THE RECORD DOES NOT SUPPORT THE WORKERS’ COMPENSATION BOARD’S CONCLUSION THAT CLAIMAINT IS NOT ENTITLED TO PERMANENT-TOTAL-DISABILITY STATUS BASED UPON EXTREME FINANCIAL HARDSHIP; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board and remitting the matter, determined the Board did not make findings which justified its ruling that claimant was not entitled to relief based upon extreme financial hardship:

Workers’ Compensation Law § 35 (3) provides that, “[i]n cases where the loss of wage-earning capacity is greater than [75%], a claimant may request, within the year prior to the scheduled exhaustion of indemnity benefits under [Workers’ Compensation Law § 15 (3) (w)], that the [B]oard reclassify the claimant to permanent total disability or total industrial disability due to factors reflecting extreme hardship” … . “[A] claimant seeking reclassification based upon extreme hardship must demonstrate financial hardship beyond the ordinary and existing in a very high degree” … . * * *

Claimant’s C-35 form, the accompanying submissions and her hearing testimony demonstrate that her essential monthly expenses — consisting of rent, utilities and basic amenities — would exceed her monthly income of $1,280, received from Social Security disability, by more than $300 if her workers’ compensation benefits are ended. This deficit results in claimant’s inability to cover even basic grocery expenses upon the expiration of her workers’ compensation benefits. Significantly, the Board made no finding that claimant’s income would be sufficient to meet her essential living expenses, nor is there substantial evidence in the record to support any such conclusion. * * * … [T]he Board did no analysis, and gave no explanation, as to how the future reduction of claimant’s income to an amount significantly below the most basic of living expenses did not result in an extreme financial hardship. Claimant now lives alone in a modest apartment and uses a high-mileage, nearly 20-year-old vehicle, for which she pays a nominal monthly parking fee. Upon this record, substantial evidence does not support the Board’s determination that claimant failed to demonstrate extreme financial hardship warranting a reclassification pursuant to Workers’ Compensation Law § 35 (3) and, thus, we reverse. Matter of Martin v D’Agostino Supermarkets Inc., 2025 NY Slip Op 04059, Third Dept 7-3-25

Practice Point: Consult this decision for a discussion of the criteria for permanent-total-disability status based upon extreme financial hardship.

 

,

PLAINTIFF ALLEGEDLY SLIPPED AND FELL AFTER STEPPING ON A CHERRY TOMATO IN DEFENDANT’S STORE; CONSULT THIS DECISION FOR A DISCUSSION OF HOW A DEFENDANT CAN DEMONSTRATE A LACK OF ACTUAL AND CONSTRUCTIVE NOTICE; DEFENDANT SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Supreme Court in this slip and fall case, determined defendant grocery-store’s motion for summary judgment should have been granted. Plaintiff failed to raise a question of fact about the store’s constructive notice of the presence of a cherry tomato on the floor:

Defendant offered plaintiff’s deposition testimony and the deposition testimony of several of its employees, including the produce manager on duty the day of the fall. Plaintiff recalled in her deposition testimony that she was walking, slipped and fell forward to the ground. She did not know what caused her fall at the time, but afterward when she examined both the bottom of her shoe and the floor, she realized that she slipped on a cherry tomato. Plaintiff did not see the tomato prior to falling and has no knowledge of how long it may have been there. The assistant store manager stated that the store was cleaned every night by an outside company, that he inspected the store every morning when he first arrived as well as throughout the day, and that he did not recall any produce on the floor prior to plaintiff’s fall. The produce manager relayed in his deposition testimony that he had been the produce manager at the subject store for 14 years, that he received training regarding safety concerns and that he had, in turn, trained his associates on matters of safety. Here, defendant’s safety policy with regard to the floor area did not call for any sort of regularly scheduled inspections but rather consisted of directing its employees to be continually vigilant for dropped items — in essence, if you see something, immediately pick it up. The produce manager stated that the cherry tomatoes sold at the store are packaged in a clamshell container with a lid that locked into place. He further stated that he regularly inspects the floors for safety issues, that he was not aware of anyone who stepped on or slipped on produce in his department prior to plaintiff’s fall in 2020, nor had he received any complaints about produce being spilled on the floor. He asserted that the cherry tomato display was approximately 15 to 20 feet from where plaintiff fell. Most importantly, he testified that on the day in question, he inspected the area where plaintiff fell approximately 40 minutes before her fall and did not see any produce on the floor.[FN1] Additionally, he testified that he had not received any complaints that morning about produce on the floor. The foregoing was sufficient to establish defendant’s prima facie entitlement to summary judgment by demonstrating that it maintained the property in a reasonably safe condition, did not create the allegedly dangerous condition that caused plaintiff’s injury and had neither actual nor constructive notice of such condition … . Levitt v Tops Mkts., LLC, 2025 NY Slip Op 04060, Third Dept 7-3-25

Practice Point: Here defendant proved a lack of actual and constructive notice of a cherry tomato on the store floor which allegedly caused plaintiff’s slip and fall. Essentially the store demonstrated the floor is inspected continually throughout the day and the area of the fall was inspected 40 minutes before the fall.

 

,

AN UNSECURED LADDER THAT SLIPS OUT FROM UNDER THE PLAINTIFF WARRANTS SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 240(1) cause of action in this ladder fall case should have been granted. The ladder was not secured and slipped out from under the plaintiff, who fell 10 to 12 feet:

“Labor Law § 240(1) imposes upon owners, contractors, and their agents a nondelegable duty to provide workers proper protection from elevation-related hazards” … . “To prevail on a Labor Law § 240(1) cause of action, a plaintiff must prove that the defendant violated the statute and that such violation was a proximate cause of his or her injuries” … . “Whether a device provides proper protection is a question of fact, except when the device collapses, moves, falls, or otherwise fails to support the plaintiff and his or her materials” … . “Specifically, with respect to accidents involving ladders, liability will be imposed when the evidence shows that the subject ladder was . . . inadequately secured and that . . . the failure to secure the ladder[ ] was a substantial factor in causing the plaintiff’s injuries” … .

Here, the plaintiff demonstrated, prima facie, that he was entitled to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant. In support of his motion, the plaintiff submitted transcripts of his deposition testimony and the deposition testimony of a witness to his accident which showed that the plaintiff was exposed to an elevation risk within the ambit of Labor Law § 240(1), that the ladder slipped out from under the plaintiff as he descended from the roof, that the ladder fell away from the wall, and that the inadequately secured ladder was a proximate cause of the plaintiff’s injuries … . In opposition, the defendant failed to raise a plausible view of the evidence—enough to raise a triable issue of fact—that there was no statutory violation and that the plaintiff’s own acts were the sole cause of the accident … . Ruiz v Ewan, 2025 NY Slip Op 04032, Second Dept 7-2-25

Practice Point: Here evidence the ladder was tethered to the house after the accident did not raise a question of fact about whether the ladder was unsecured when it slipped out from under plaintiff.

 

,

ALTHOUGH THE INITIAL INVOLUNTARY ADMISSION OF A MENTALLY ILL PATIENT REQUIRES CERTIFICATION BY LICENSED PHYSICIANS, A NURSE PRACTITIONER IS COMPETENT TO TESTIFY AT THE SUBSEQUENT RETENTION HEARING (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Love, determined that, at a hearing pursuant to Mental Hygiene law sections 9.31 and 9.33 to retain an involuntary patient, the petitioner can rely on the testimony of a nurse practitioner. The controlling statute does not require the testimony of a licensed physician:

Mental Hygiene Law § 9.27 et seq. establishes the procedure for the involuntary admission and retention of patients alleged to be mentally ill in a hospital. Pursuant to that section, a patient may be initially involuntarily admitted to a hospital upon the certification of two examining physicians, which must then be confirmed by a third physician who is a member of the psychiatric staff of that hospital … . A question of first impression before this Court on this appeal is whether, at a hearing held pursuant to Mental Hygiene Law §§ 9.31 and 9.33 to retain an involuntary patient, the petitioner must furnish the testimony of a licensed physician rather than a nurse practitioner. * * *

There is no support in the statute or any related regulations for the proposition that the petitioner must establish its prima facie burden through physician testimony. Moreover, it reasonably can be argued that requiring the testimony of a physician, who may have comparably less knowledge of a specific patient’s mental condition compared to an experienced nurse practitioner who interacts extensively with that patient, would be a disservice to the court and the parties. The court, hearing the testimony and evidence in its totality, is in the best position to determine the value and credibility of a witness in determining these matters. Accordingly, we conclude that a nurse practitioner is competent to testify at a hearing held pursuant to Mental Hygiene Law §§ 9.31(c) and 9.33(c). Matter of Raymond E., 2025 NY Slip Op 04006, Second Dept 7-2-25

Practice Point: A nurse practitioner is competent to testify at a retention hearing pursuant to Mental Hygiene Law section 9.31 and 9.33.

 

, ,

THE SENTENCING COURT SHOULD REDACT FROM THE PRESENTENCE REPORT ANY REFERENCE TO CRIMINAL CONDUCT OF WHICH THE DEFENDANT WAS ACQUITTED (FOURTH DEPT).

The Fourth Department determined defendant’s presentence report should have been redacted to remove reference to criminal conduct of which defendant was acquitted:

We agree with defendant, however, that the court erred in failing to redact improper statements from the presentence report (PSR) because they reference criminal conduct of which defendant was acquitted … . Specifically, we agree with defendant that the inclusion in the PSR of statements regarding alleged sexual offenses by defendant involving another child, of which he was acquitted, “was inappropriate and inflammatory” … . We therefore direct County Court to redact the sentence on page 10 of the PSR referring to a statement by the victim “that there could be another victim . . . who was inappropriately touched by [defendant]”; the quotation on page 10 from an investigator stating that defendant ” ‘was having sexual intercourse with another underage female as well. High risk for children’ “; and the sentence on page 12 referring to a disclosure “that [defendant] has been sexually assaulting [the other victim] since she was nine years old” from all copies of defendant’s PSR.  People v Wilmet, 2025 NY Slip Op 03901, Fourth Dept 6-27-25

Practice Point: A presentence report should not include any references to criminal conduct of which defendant was acquitted.​

 

 

, ,

THE POLICE SUSPECTED DEFENDANT HAD SPECIFIC WEAPONS IN A SPECIFIC VEHICLE; AFTER A TRAFFIC STOP, THE POLICE SEARCHED THE CAR AND FOUND A WEAPON; LATER THEY SEARCHED THE CAR AGAIN AND FOUND A SECOND WEAPON; ONLY AFTER THE SEARCHES DID THEY START TO FILL OUT THE INVENTORY SEARCH FORM; THIS WAS NOT A VALID INVENTORY SEARCH; THE WEAPONS SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the weapons seized from defendant’s vehicle after a traffic stop should have been suppressed. The police were looking for specific weapons in a specific car at the time of the search. Therefore the search could not be considered a valid inventory search:

… [T]he record reveals that the purported inventory search was actually a pretext to search for contraband. At the suppression hearing, the testimony and body-worn camera footage established that one of the officers who stopped defendant’s vehicle identified him and testified that defendant had, earlier that day, been identified as someone likely to be in possession of a weapon. Following the traffic stop and while defendant was being detained pursuant to an outstanding arrest warrant, two other officers arrived on the scene. One of the arriving officers identified the vehicle defendant was driving as one that the police thought defendant would be using and would be keeping a weapon in. The other arriving officer promptly began searching the front passenger area of the vehicle; he opened the glove box and found a weapon, prompting a police officer to observe “oh, there it is.” At that point, another officer said “let’s check for the second one,” and shortly thereafter a second weapon was found in the same spot, precisely as predicted by that officer. * * *

Our conclusion is not based merely on the fact that, in conducting the first search, the “officers knew that contraband might be recovered” from the vehicle … . Rather, the evidence at the suppression hearing demonstrated that the officers’ purpose in conducting the first search was to find specific weapons in a specific vehicle possessed by a specific person, i.e., defendant. We also note that the officers did not begin the second search until about ten minutes after the weapons were discovered, and it was only at that time that an officer began filling out an inventory search form. The facts that the inventory search form was not made contemporaneously with the first search, as required by Buffalo Police Department policy, and that it was incomplete to the extent it failed to note, as required, obvious damage to the vehicle, merely underscores and corroborates our conclusion that the first search of the vehicle was pretextual. People v Cunningham, 2025 NY Slip Op 03890, Fourth Dept 6-27-25

Practice Point: Here the fact that the police did not start filling out the inventory-search form until after two  searches of the vehicle had turned up weapons demonstrated the attempt to color the warrantless search as an inventory search was a ruse.

 

, , , , ,

CLAIMANT MADE AN APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM CONCERNING INJURIES INCCURRED WHEN WORKING FOR THE CITY; CLAIMANT WAS ENTITLED TO PRE-ACTION DISCOVERY TO ESTABLISH WHEN THE CITY GAINED ACTUAL KNOWLEDGE OF THE FACTS UNDERLYING THE CLAIM (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined claimant was entitled to pre-action discovery to support his allegation that the city had timely notice of his accident which would warrant leave to file a late notice of claim:

In determining whether to grant an application for leave to serve a late notice of claim, “the court must consider, inter alia, whether the claimant has shown a reasonable excuse for the delay, whether the municipality had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the municipality” … . ” ‘While the presence or absence of any single factor is not determinative, one factor that should be accorded great weight is whether the [municipality] received actual knowledge of the facts constituting the claim in a timely manner’ ” … .

… In support of his application, claimant sought, inter alia, any incident reports concerning the accident and any correspondence between respondents concerning the accident. Claimant alleged that he told his employer about the incident five days after it occurred and believed that his employer notified the City of the accident at that time.

… Supreme Court abused its discretion in denying that part of his application seeking pre-action discovery (see CPLR 3102 [c]). Under the circumstances of this case, claimant demonstrated that pre-suit discovery is needed in support of his application for leave to serve a late notice of claim for the purpose of establishing when the City had actual knowledge of the facts constituting the claim … . Matter of Wisnowski v City of Buffalo, 2025 NY Slip Op 03886, Fourth Dept 6-27-25

Practice Point: When applying for leave to file a late notice of claim, demonstrating the municipality had actual knowledge of the facts underlying the claim within 90 days of the accident is crucial. Here the claimant alleged his employer told the city about the accident five days after it occurred. Claimant was entitled to pre-action discovery on that issue.​

 

, , , , ,

THE SORA HEARING JUDGE SHOULD NOT HAVE GRANTED AN UPWARD DEPARTURE, INCREASING DEFENDANT’S SORA RISK LEVEL, BASED ON INFORMATION WHICH WAS NOT IN THE RISK ASSESSMENT INSTRUMENT (RAI) OR RAISED BY THE PEOPLE AT THE HEARING; TO DO SO VIOLATED DEFENDANT’S RIGHT TO DUE PROCESS (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the judge should not have increased defendant’s SORA risk-level based upon information which was not included in the risk assessment instrument (RAI) or raised by the People at the SORA hearing:

“The due process guarantees in the United States and New York Constitutions require that a defendant be afforded notice of the hearing to determine [their] risk level pursuant to SORA and a meaningful opportunity to respond to the [RAI]” … . It is therefore improper for a court to depart from the presumptive risk level based on a ground for departure that has never been raised (see id.). Here, because defendant’s employment was not presented as a basis for departure in the RAI or by the People at the hearing, defendant was not afforded notice and a meaningful opportunity to respond to it … . We therefore reverse the order, vacate defendant’s risk level determination, and remit the matter to County Court for a new risk level determination and, if necessary, a new hearing in compliance with Correction Law § 168-n (3) and defendant’s due process rights … . People v Lincoln, 2025 NY Slip Op 03930, Fourth Dept 6-27-25

Practice Point: A defendant is entitled to notice of all the evidence which the court will rely for a SORA risk-level assessment such that the defendant has an opportunity to respond.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy