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PLAINTIFF FATHER WAS AWARDED SOLE CUSTODY OF THE CHILD IN AN ORDER THAT DIRECTED MOTHER TO “STAY AWAY” FROM FATHER AND CHILD; FATHER ASKED THE POLICE FOR HELP IN SERVING THE ORDER AND PICKING UP THE CHLID; MOTHER WOULD NOT LET THE POLICE INTO HER HOME; DISTRICT ATTORNEYS ADVISED THAT THE POLICE COULD NOT ENTER MOTHER’S HOME; THE NEXT DAY MOTHER MURDERED THE CHILD; THE COMPLAINT AGAINST THE MUNICIPAL DEFENDANTS SHOULD NOT HAVE BEEN DIISMISSED; PLAINTIFF DEMONSTRATED A SPECIAL RELATIONSHIP WITH THE MUNICIPALITY AND THE MUNICIPALITY DID NOT DEMONSTRATE IT WAS ENTITLED TO GOVERNMENTAL FUNCTION IMMUNITY (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Taylor, determined the negligence and wrongful death action against the municipal defendants should not have been dismissed, and plaintiff’s motion for leave to amend the notice of claim or leave to file a late notice of claim should have been granted. Plaintiff father was granted sole custody of his child in an order which required mother to “stay away” from father and the child. Plaintiff asked the police for help in serving the order on mother and picking up the child. The police attempted to serve the order, but mother slammed the door and would not let them in. District attorneys were then contacted for advice but determined the police could not enter mother’s home. The next day the police were called to mother’s home where the child was found deceased. Mother was convicted of murdering the child. The Second Department held that there was a special relationship between plaintiff and the municipality and the municipality was not entitled to governmental function immunity: The opinion is too complex to fairly summarize here:

To establish the existence of a special relationship, a plaintiff is required to prove four elements, also referred to as “the Cuffy factors” or “the Cuffy test,” namely:

“(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” (Cuffy v City of New York, 69 NY2d 255, 260 …). * * *

Generally, the “decision to arrest an individual involves the exercise of discretion . . . and thus is cloaked with governmental immunity” … . However, here, in the face of what was, in effect, a temporary order of protection, the defendant police officers became, at a minimum, “obligated to respond and investigate” … . Therefore, the Village defendants have not conclusively established that their actions were purely discretionary … . Boyd v Village of Mamaroneck, 2026 NY Slip Op 02239, Second Dept 4-15-26

Practice Point: Consult this opinion for insight into what constitutes a “special relationship” between a plaintiff and a municipality and when a municipality is protected from liability in negligence by governmental function immunity.

 

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THERE ARE QUESTIONS OF FACT WHETHER PLAINTIFF WAS TERMINATED FROM HIS EMPLOYMENT BASED ON “FAMILIAL STATUS” AND “CAREGIVER” DISCRIMINATION PURSUANT TO THE NYS AND NYC HUMAN RIGHTS LAW (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the causes of action for “familial status” and “caregiver” discrimination under the Human Rights Law should not have been dismissed in this wrongful termination action:

… [T]he record presents issues of fact as to plaintiff’s familial and caregiver status causes of action under the State HRL [Human Rights Law], which prohibits discrimination based on “familial status,” including against “any person who . . . has a child or is in the process of securing legal custody” of a child (Executive Law §§ 292[26][a], 296[1][a]), and the City HRL, which prohibits discrimination based on “caregiver status” (Administrative Code of City of NY § 8-107[1][a]). On July 11, 2016, the day before DSC’s [defendant’s] decision to put plaintiff on probation, plaintiff attended a hearing in a custody proceeding regarding his daughter. According to plaintiff, Richard Greenberg, DSC’s co-chief investment officer, questioned whether plaintiff “was sure [he wanted] to do this” (that is, to participate in custody proceedings) and encouraged him to “[g]ive up on [his] daughter.” In addition, at plaintiff’s year-end review meeting, which plaintiff recorded, Greenberg gave him negative feedback about his job performance and stated, “I just want to know . . . is your heart still in it, you know? . . . I mean you’ve got all these things going on.”

Additionally, in January 2017, Jane Park, the firm’s director of business development and client relations, authored a memo for Smith and Greenberg that discussed whether to disclose to firm clients that a more junior investment analyst had received firm equity while plaintiff had not. The memo posited telling clients, as one option, that plaintiff “is going through some personal issues which make[] the current timing less than ideal for ownership disbursement.” Park testified at her deposition that she was referring to the fact that plaintiff was “distracted” because of his divorce and custody fight. …

Taken together, the evidence could lead a reasonable factfinder to conclude that defendants’ proffered reasons for denying plaintiff equity and ultimately terminating him were “false, misleading, or incomplete,” and that plaintiff was, in fact, terminated on the basis of his familial or caregiver status … . Mezinev v Donald Smith & Co., 2026 NY Slip Op 02209, First Dept 4-14-26

Practice Point: Consult this decision for insight into what constitutes “familial status” and “caregiver” discrimination in the context of an alleged wrongful termination of employment pursuant to the NYS and NYC Human Rights Law.

 

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THE JUDGE SHOULD NOT HAVE GRANTED MOTHER A SUSPENDED JUDGMENT IN THIS NEGLECT PROCEEDING; THE SERIOUSNESS OF MOTHER’S CONDUCT WAS NOT ACKNOWLEDGED BY THE JUDGE (FIRST DEPT).

The First Department, reversing Family Court, determined the judge should not granted a suspended judgment in this neglect proceeding:

The court abused its discretion in granting the mother a suspended judgment. A court should not vacate a neglect finding except upon a determination that doing so serves the child’s best interests, including “consideration of a parent’s ability to supervise a child and eliminate any threat of future abuse or neglect” … . “[A]t its core, a suspended judgment affords a respondent the opportunity to correct his or her neglectful actions” … . Courts considering whether to grant a suspended judgment should examine four factors: “(1) the respondent’s prior child protective history; (2) the seriousness of respondent’s offense; (3) respondent’s remorse and acknowledgment of the abusive or neglectful nature of his or her act; and (4) respondent’s amenability to correction, including compliance with court orders” (id. at 12 [internal quotation marks omitted]).

Here, Family Court failed to consider the second, third and fourth factors adequately. The trial court addressed the first factor by noting that the mother had no prior involvement with the child welfare system. As to the second factor, although the mother admitted inflicting excessive corporal punishment on [the child] on more than one occasion and causing him injury, Family court’s decision does not acknowledge the seriousness of the mother’s conduct. Matter of N.G. (Angelica T.), 2026 NY Slip Op 02198, First Dept 4-14-26

Practice Point: Consult this decision for insight into the factors Family Court must consider before granting a suspended judgment in a neglect proceeding. Here it was not enough that mother had no prior involvement with the child welfare system. The seriousness of her conduct must be considered.​

 

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DEFENDANT’S CONTRACT WITH THE TOWN TO MAINTAIN STREET LIGHTS DID NOT CREATE A DUTY OWED BY THE CONTRACTOR TO THE PLAINTIFF, A PEDESTRIAN STRUCK BY A CAR WHO ALLEGED A STREET LIGHT WAS NOT WORKING; THE CONTRACTOR DID NOT “LAUNCH AN INSTRUMENT OF HARM;” IT MERELY FAILED “TO ACT AS AN INSTRUMENT OF GOOD” WHICH DOES NOT CREATE A DUTY TO A NONPARTY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate the breach of a duty owed to him by defendant contractor. Defendant had entered a contract with defendant municipality to maintain street lights. Plaintiff, a pedestrian struck by a car, alleged the accident was in part caused by a street light which was not working. The complaint, however, did not allege defendant contractor had “launched an instrument of harm,” as opposed to merely a failure to act as an instrument of good:

… [T]he facts alleged do not establish that the defendant launched an instrument of harm, as the defendant is not alleged to have “created or increased the risk [to the plaintiff] beyond the risk which existed even before [the defendant] entered into [its] contractual undertaking” … . The defendant’s purported negligence in failing to restore illumination to a darkened intersection amounts to, at most, a failure to act as an “instrument for good, which is insufficient to impose a duty of care” upon the defendant in the absence of contractual privity with the plaintiff … . Moreover, the contract submitted by the defendant in support of its motion conclusively demonstrated that the defendant’s contractual undertaking was “not the type of ‘comprehensive and exclusive’ property maintenance obligation” that would “entirely absorb” the Town’s duty “to maintain the premises safely” … . Weiss v Fran Corp., 2026 NY Slip Op 02147, Second Dept 4-8-26

Practice Point: Consult this decision for insight into what “launching an instrument of harm,” as opposed to “failing to act as an instrument of good,” means in the context of a duty owed by a party to a contract to an injured nonparty.

 

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THE GUARDIAN’S ILLNESS PRECIPITATED THE PETITION TO REMOVE HER; UPON HER RECOVERY THERE WAS NO JUST CAUSE FOR HER REMOVAL; PETITION DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence did not support the removal of the incapacitated person’s (Frank’s) wife, Zita, as the guardian of the person and property of Frank. The removal petition, brought by Frank’s daughter, Tara, was dismissed:

In December 2022, the wife was temporarily hospitalized, which precipitated the petition … to remove her as guardian of the person and property of the incapacitated person. …

The determination “to remove a guardian of the person and property of an incapacitated person pursuant to the Mental Hygiene Law is addressed to the sound discretion of the Supreme Court” … . The “overarching concern remains the best interest of the incapacitated person” … . “A guardian may be removed pursuant to Mental Hygiene Law § 81.35 when the guardian fails to comply with an order, is guilty of misconduct, or for any other cause which to the court shall appear just” … .

Here, the Supreme Court improvidently exercised its discretion in removing the wife as guardian of the person and property of the incapacitated person (see Mental Hygiene Law § 81.35). The wife’s temporary medical crisis that had precipitated the petition was resolved, and the petitioner failed to demonstrate that any of the wife’s actions regarding the incapacitated person’s care were a just cause for removal … . Matter of Frank M. (Zita C.–Tara M. M.), 2026 NY Slip Op 02116, Second Dept 4-8-26

Practice Point: Other than the guardian’s illness, there was no support for her removal as guardian. Her recovery, therefore, warranted dismissal of the removal petition.

 

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A MORE PROBING INQUIRY BY THE JUDGE WAS REQUIRED TO ENSURE THE MENTALLY DISABLED DEFENDANT UNDERSTOOD THE CONSEQUENCES OF HIS ALFORD PLEA, PLEA VACATED (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction by Alford plea, in a full-fledged opinion by Justice Reynolds Fitzgerald, determined a more probing inquiry by the judge was required to determine whether the plea was knowing and intelligent. Defendant had been found incompetent to stand trial twice before being found mentally competent to stand trial:

While there is no mandatory catechism required of a pleading defendant, there must be an affirmative showing on the record that the defendant waived his or her constitutional rights” … . “People with intellectual disabilities possess diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. . . . These traits render people with intellectual disabilities uniquely vulnerable to injustice within criminal proceedings. . . . [Therefore], a court must account for [a defendant’s] diminished mental capacity in ensuring that any waiver of constitutional rights is knowing, intelligent and voluntary” … .

As defendant was twice determined to be incompetent to stand trial and had received four years of treatment before he was deemed competent to participate in his defense, County Court was aware of defendant’s intellectual disabilities. Notwithstanding the determination that defendant was competent to stand trial, the third psychiatric evaluation report cast serious doubts on defendant’s ability to enter a knowing and voluntary plea. The report indicates that on defendant’s most recent cognitive assessment he “achieved a [f]ull-[s]cale IQ of 59, indicative of abilities consistent with a [m]ild [i]ntellectual [d]isability.” Additionally, he “achieved an [a]daptive [b]ehavior [c]omposite of 68, consistent with [the] upper end of the ‘low’ range of daily living skills.” The psychologist further noted that defendant was “rather immature in his understanding of the severity of his charges and the chances that he could have significant consequences — such as jail time.” More importantly, during the evaluation, defendant repeatedly alleged that his counsel had reassured him that he will not be going to jail and, in fact, “express[ed] strongly held beliefs that he will not be sent to jail due to his personal circumstances of having a disability and being young when the offenses were allegedly committed. These beliefs are likely related to his relative youth and mental health difficulties, several of which make it difficult for [defendant] to relate to others successfully, accept social norms and expectations, or respect interpersonal boundaries. These beliefs are unlikely to change with additional education or training.”

Under these circumstances, “[a] more probing inquiry was warranted here to ensure that defendant understood the constitutional rights he was waiving, given his significant intellectual disability” … . As there is no affirmative showing on the record that defendant understood and voluntarily waived his constitutional rights when he entered his guilty plea, the judgment of County Court convicting defendant of manslaughter in the first degree and sentencing defendant thereon should be reversed, the plea vacated and the matter remitted for further proceedings … . People v Oldorff, 2026 NY Slip Op 02004, Third Dept 4-2-26

Practice Point: Where the defendant is mentally disabled and has previously been found incompetent to stand trial, before accepting a guilty plea, a probing inquiry by the judge is required to ensure the defendant understands the consequences.

 

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ALTHOUGH THE CONVICTIONS WERE SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE THE CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT).

The Third Department, reversing defendant’s convictions, determined the evidence was legally sufficient but the convictions were against the weight of the evidence:

People’s accomplice theory supporting counts 2 through 7 against defendant was that the video surveillance footage depicted the gun being handed off before the shooting. However, the video footage is dark and pixelated, and the brother’s body obscures part of the interaction, making it impossible to discern whether defendant and the codefendant exchanged a handgun — let alone anything — without resorting to speculation, which cannot be the basis for defendant’s guilt beyond a reasonable doubt … . Nor is there anything in the record to suggest that this codefendant was aware that defendant had a gun, as none of the witnesses testified that he was present when defendant had displayed the gun at the mother’s residence. To this point, the codefendant’s lack of knowledge combined with the testimony that he threatened to return and shoot the victim creates the reasonable inference that he already had access to a gun of his own. Accordingly, given the lack of record support to establish beyond a reasonable doubt that defendant solicited, requested, commanded, importuned or intentionally aided another individual to possess and use a firearm in commission of the offenses charged under counts 2 through 7, we reverse these convictions as against the weight of the evidence … .

Relating to the weapon charges under counts 8 and 9, multiple witnesses testified that defendant was seen with a handgun only while at the mother’s residence. However, since the evidence fails to demonstrate that the shooting was committed with the same gun, it so follows that the record also fails to establish beyond a reasonable doubt that defendant intended to use the gun he was seen with “unlawfully against another” as charged by the indictment (Penal Law § 265.03 [1] [b]). Further, although defendant did not possess the requisite gun permit and was outside of his home or place of business, the People cannot establish operability of the handgun that defendant was seen with at the mother’s residence before the shooting either … . People v Bowden, 2026 NY Slip Op 02003, Third Dept 4-2-26

Practice Point: Consult this decision for an example of convictions supported by legally sufficient evidence but against the weight of the evidence.

 

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AN ANONYMOUS RADIO TRANSMISSION PROVIDED THE COLOR, MAKE, LOCATION AND LICENSE PLATE NUMBER OF A CAR WHICH WAS ALLEGED TO HAVE BEEN CARJACKED; THE POLICE OFFICERS FORCIBLY STOPPED THE CAR BEFORE VERIFYING THE LICENSE PLATE NUMBER; THE POLICE DID NOT HAVE “REASONABLE SUSPICION” AT THE TIME OF THE STOP (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined that the forcible stop of the vehicle defendant was driving was not supported by “reasonable suspicion.” The stop was based upon an anonymous radio transmission. The transmission provided the color, make, license plate number and location of a vehicle which had been carjacked. The police saw a vehicle matching the description in a parking lot but did not verify the license plate number until after the forcible stop:

… [T]he arresting officer testified that at approximately 12:30 a.m. on June 30, 2016, he and his partner received a radio transmission that a black Toyota with Pennsylvania license plate JCS1537 had been carjacked, the car was being tracked in real time, and its current location was near West 165th Street and Amsterdam Avenue in Manhattan. No evidence was presented as to the basis for the transmission or how the vehicle was being tracked. The officers responded to that location and saw a man standing by the trunk of a black Toyota with his hands by his waist in an open-air parking lot. A parking lot attendant confirmed that a black Toyota with Pennsylvania license plate had recently entered the lot. The officers then saw the black Toyota trying to exit. The officer stopped the car by drawing his gun, putting his hand up, and telling it to stop. The officer noticed that the Toyota had no front plate, which was not required in Pennsylvania, and a parking receipt on the windshield for the same license plate number as the stolen vehicle. * * *

The police officer’s testimony failed to provide any information that would have corroborated the anonymous radio transmission. Without knowing the source or nature of the tip with respect to either the carjacking report or the real-time tracking, the forcible stop was not justified by a reasonable suspicion … . The testimony that defendant was standing near the trunk of a black Toyota in a parking lot was not corroborative since such conduct was neither unlawful nor suspicious. The officer’s testimony indicated that he only noticed the lack of the front license plate and parking receipt reflecting a matching license number with the carjacked vehicle after he had already forcibly stopped defendant. Thus, this corroborating information cannot justify the officer’s actions … . People v Martinez-Jaquez, 2026 NY Slip Op 02045, First Dept 4-2-26

Practice Point: Consult this decision for insight into the corroboration required before the police can act on an anonymous tip.

 

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A PLAINTIFF NEED NOT SUBMIT ANY EVIDENCE IN OPPOSITION TO A MOTION TO DISMISS AS OPPOSED TO A MOTION FOR SUMMARY JUDGMENT; HERE THE COMPLAINT STATED CAUSES OF ACTION FOR MEDICAL MALPRACTICE AND LACK OF INFORMED CONSENT; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to dismiss the medical malpractice complaint should not have been granted, noting that a plaintiff need not present any evidence in opposition to a motion to dismiss, as opposed to a motion for summary judgment:

Supreme Court improperly granted the motion of [defendants] pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against them based on the plaintiff’s failure to comply with the court’s earlier directive “to provide an affidavit from a physician attesting [to] the merits of her claims.” The burden does not shift to the nonmoving party on a motion pursuant to CPLR 3211(a)(7). A plaintiff need not make an evidentiary showing in support of the complaint in order to defeat such a motion and will not be penalized for failure to do so … . Here, where the motion was not converted into one for summary judgment, the plaintiff had no obligation to provide an affidavit from an expert to support the allegations in the amended complaint in order to defeat the [defendants’] motion … . * * *

… [A]ccepting the allegations in the amended complaint as true and according the plaintiff the benefit of every possible favorable inference, the amended complaint sufficiently stated causes of action alleging medical malpractice and lack of informed consent … . Wilber v Borgen, 2026 NY Slip Op 02001, Second Dept 4-1-26

Practice Point: A plaintiff need not submit any evidence in opposition to a motion to dismiss the complaint. Here the judge should not have granted the motion on the ground the plaintiff did not comply with the court’s directive to submit an affidavit from a physician.

 

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SUPREME COURT’S GRANTING OF DEFENDANTS’ SUPPRESSION MOTIONS REVERSED IN THIS TRAFFIC STOP CASE; THE REPORT THAT THE VEHICLE HAD BEEN INVOLVED IN AN ARMED ROBBERY THAT DAY AND THE DEFENDANTS’ LACK OF COOPERATION AT THE TIME OF THE STOP JUSTIFIED BREAKING THE VEHICLE’S WINDOWS, REMOVING THE DEFENDANTS AND HANDCUFFING THEM; OBSERVING A FIREARM IN THE VEHICLE PROVIDED PROBABLE CAUSE TO ARREST (SECOND DEPT).

The Second Department, reversing Supreme Court’s suppression of evidence seized during a traffic stop, over a dissent, determined the police had reasonable suspicion to stop the vehicle and exigent circumstances justified the search of a defendant’s fanny pack. The dissent disagreed about the legitimacy of the search of the fanny pack:

… [T]he police officers had reasonable suspicion to stop the vehicle based upon the fact that the description of the vehicle matched that of a vehicle that had been involved in an armed robbery earlier that day, and the vehicle’s location had been detected by a license plate reader approximately five minutes prior to the stop … . Moreover, the actions of the police officers in drawing their guns and ordering the defendants out of the vehicle were justified under the circumstances as appropriate measures to ensure their safety … . Additionally, when the defendants failed to cooperate with the officers’ instructions, the officers acted appropriately in breaking the vehicle’s “excessive[ly] . . . tint[ed]” front windows for their own safety and then in removing the defendants from the vehicle and placing them in handcuffs … . The police thereafter had probable cause to arrest the defendants once the officer observed a firearm in plain view in the compartment of the driver’s side door of the vehicle … .

… [T]he subsequent search of Rivera’s fanny pack was justified as a search incident to a lawful arrest … . * * *

“Under the State Constitution, to justify a warrantless search incident to arrest, the People must satisfy two separate requirements” … . “The first imposes spatial and temporal limitations to ensure that the search is ‘not significantly divorced in time or place from the arrest'” … . “The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances” … . …

… The police were notified that a vehicle matching the description of the subject vehicle was involved earlier the same day in a gunpoint robbery in Brooklyn. … [A]fter the vehicle was boxed in by police vehicles, the occupants tried to escape the scene in the vehicle and continually refused the officer’s directives to lower the heavily tinted car windows or exit the vehicle. People v David, 2026 NY Slip Op 01980, Second Dept 4-1-26

Practice Point: Here Supreme Court granted defendants’ suppression motions and the Appellate Division reversed finding (1) the guns-drawn traffic stop, (2) the breaking of the vehicle’s windows, (3) the removal of defendants from the vehicle, (4) the handcuffing of the defendants, and (5) the arrest of the defendants upon observing a firearm in the vehicle, were constitutionally justified.

 

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