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IN A MED MAL ACTION, AN EXPERT’S AFFIRMATION WHICH IS NOT SUPPORTED BY THE RECORD WILL BE DEEMED “CONCLUSORY” AND WILL NOT SUPPORT SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this medical malpractice case should not have been granted because the expert affirmation submitted is support of the motion was “conclusory and not supported by the record:”

… [D]efendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them. The defendants submitted, inter alia, the affirmation of an expert, whose opinions regarding the defendants’ alleged failure to diagnose the plaintiff’s aortic dissection after receipt of certain X-ray results and blood test results were conclusory and unsupported by the record … . That expert’s opinion regarding proximate cause was also conclusory and insufficient to meet the defendants’ burden as the parties moving for summary judgment … . In v Maimonides Med. Ctr., 2025 NY Slip Op 04238, Second Dept 7-23-25

Practice Point: In a med mal case. an expert affirmation which is not supported by the record will be deemed “conclusory” and insufficient to support summary judgment.

 

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THE RECORD DID NOT SUPPORT PLACEMENT OF THE AUTISTIC CHILD IN A “QUALIFIED RESIDENTIAL TREATMENT PROGRAM” (QRTP) AS OPPOSED TO FOSTER CARE; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ventura, reversing Family Court, determined the record did not support placement of the child, who is on the autism spectrum, in a “qualified residential treatment program” (QRTP) pursuant to the New York State Family First Prevention Service Act. The case gave the court the opportunity to decide an issue of first impression, i.e., which factors a court must consider in approving a child’s placement in a QRTP:

Here, since the qualified individual assessed the child and determined that placement in a QRTP would not be appropriate, the Family Court could approve the child’s placement in the QRTP only if it complied with the requirements set forth in Family Court Act § 1055-c(2)(c). Although the court found that QRTP placement was inconsistent with the child’s long-term permanency goal of adoption and that the child’s needs could be met in a less restrictive environment, the court nevertheless approved the child’s placement in a QRTP. The court, in essence, based this determination on a finding that there was not an alternative setting available that could meet the child’s needs in a less restrictive environment. * * *

However, the Family Court’s findings in this regard were not supported by the record. The court’s finding that there was not an alternative setting available was based on Loehr’s [the foster care supervisor’s] testimony that SCO [a foster-care agency] did not have any foster family homes available that could meet the child’s needs but that SCO was working to place the child in a foster family home for developmentally disabled children and was actively exploring families to adopt the child. On cross-examination, Loehr testified that SCO had not yet placed the child in a foster family home for children with developmental disabilities or a therapeutic foster family home through another agency because this would require a “step-up” conference, yet Loehr failed to explain why a “step-up” conference had not been held during the two months in which the child had been placed in the QRTP. This testimony was insufficient to support the court’s finding that there was not an alternative setting available that could meet the child’s needs in a less restrictive environment. Furthermore, Loehr’s testimony that the child had continuously lived in a foster family home setting from 2019 until January 2024, during which time his needs consistently had been met, calls into question the purported unavailability of any alternative, less restrictive settings. Matter of Joseph D.L. (Keisha T.M.), 2025 NY Slip Op 04178, Second Dept 7-16-25

Practice Point: Consult this opinion for the criteria for placement of a child in a “qualified residential treatment program” (QRTP) as opposed to foster care. The criteria were not met here.

 

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HERE PLAINTIFF SUBMITTED A SUPPLEMENTAL BILL OF PARTICULARS, NOT AN AMENDED BILL OF PARTICULARS, MORE THAN 30 DAYS BEFORE TRIAL; DEFENDANTS SHOULD HAVE ACCEPTED IT; LEAVE OF COURT WAS NOT REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined plaintiff was entitled to compel defendants to accept a second supplemental bill of particulars after plaintiff had surgery on her injured shoulder:

“Pursuant to CPLR 3043(b), a plaintiff in a personal injury action may serve a supplemental bill of particulars containing ‘continuing special damages and disabilities,’ without leave of the court at any time, but not less than 30 days prior to trial, if it alleges ‘no new cause of action’ or claims no ‘new injury'” (… quoting CPLR 3043[b]). Here, contrary to the defendants’ contention, the plaintiff sought to allege continuing consequences of the injuries suffered to her left shoulder and described in the original bill of particulars, rather than new and unrelated injuries … . Since the contested bill of particulars is a supplemental bill of particulars, rather than an amended bill of particulars, and was served more than 30 days prior to trial, leave of court was not required … . Miller v Great Vegetable Farm, Inc., 2025 NY Slip Op 04170, Second Dept 7-16-25

Practice Point: Here plaintiff documented the results of surgery on her injured shoulder in a supplemental bill of particulars. Because the document addressed injuries already alleged to have been caused by the slip and fall, and not new injuries, the document was a supplemental bill of particulars, not an amended bill of particulars. As long as a supplemental bill of particulars is served more than 30 days before trial, leave of court is not required and defendant must accept it.

 

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THE JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s kidnapping first degree conviction and ordering a new trial on that count, determined the trial judge should have given the jury an instruction on unlawful imprisonment second degree as a lesser included offense. Kidnapping first degree requires restraint for more than 12 hours. There was a reasonable view of the evidence which supported the restraint was less than 12 hours:

“A defendant is entitled to a lesser included offense charge upon request when (1) it is impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct and (2) there is a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater” … . Inasmuch as there is no dispute regarding the first prong, we turn our focus to the second. In so doing, “we must view the evidence in the light most favorable to the defendant” … . “It is only where there is no possible view of the facts by which the jury could find [the defendant guilty of] a lesser [included offense] that [a] refusal [to submit that offense] is justified” … . In light of the evidence relied upon by defendant, as summarized in our above weight of the evidence analysis, we agree with defendant that there is a reasonable view of the evidence that he committed the lesser offense by restraining the victim, but not for more than 12 hours as required to commit the greater offense. People v Akins, 2025 NY Slip Op 04122, Third Dept 7-10-25

Practice Point: Where a reasonable view of the evidence supports a lesser included offense, it is reversible error to refuse to instruct the jury on it.

 

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HERE DEFENDANTS SOUGHT TO USE PLAINTIFF’S INDICTMENT AND PLEA TRANSCRIPT IN THEIR DEFENSE OF PLAINTIFF’S CIVIL ACTION; THE ISSUE IS WHETHER THOSE RECORDS WERE SUBJECT TO THE SEALING ORDER ISSUED BY COUNTY COURT; IF THE RECORDS WERE COURT RECORDS AND PROCURED FROM THE COURT, THE SEALING ORDER WOULD NOT EXTEND TO THEM; IF THE RECORDS WERE PROCURED FROM LAW ENFORCEMENT SOURCES, THE SEALING ORDER APPLIES; MATTER REMITTED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined that whether certain records associated with plaintiff’s criminal action, including the indictment and plea transcript, were “sealed” and thus not accessible by the defendants depended on where the defendants procured them. The sealing order did not extend to “court records” as opposed to records kept by the police and prosecutors:

We must … decide whether CPL 160.55 i… encompasses the content that plaintiff seeks to have excluded from trial. After plaintiff entered a guilty plea to disorderly conduct in the criminal action, County Court issued a sealing order pursuant to CPL 160.55, which applies when an action has been terminated by a conviction of certain violations, including disorderly conduct. * * *

A careful comparison of the language used in CPL 160.50 and 160.55 leads us to agree with defendants’ contention that CPL 160.55 does not extend to court records. Under CPL 160.55 (1) (c), once notified of a qualifying violation conviction, the enumerated criminal justice entities must seal “all official records and papers relating to the arrest or prosecution” in their possession. By comparison, CPL 160.50 (1) provides that, when an action has been terminated in favor of the accused, unless the court requires otherwise, “the record of [an] action or proceeding shall be sealed” and notification of such termination and sealing shall be sent by the clerk of the court to the “the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies” … . Upon receipt thereof, “all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor’s office shall be sealed and not made available to any person or public or private agency” (CPL 160.50 [1] [c] … . By its plain terms, CPL 160.50 seals official court records pertaining to the arrest and prosecution, whereas CPL 160.55 omits that express sealing … . * * *

We are mindful that the record does not reveal how defendants obtained copies of the indictment and combined plea/sentencing transcript. To the extent defendants obtained these documents from the official court file maintained by County Court, they would not be subject to the sealing order issued pursuant to CPL 160.55. However, if these documents were obtained from the files of “the division of criminal justice services, police agency, or prosecutor’s office” (CPL 160.55 [1] [c]), they would be subject to the sealing order.  … [P]laintiff did not waive the privilege that is afforded to these documents in the event they were obtained from one of the aforementioned law enforcement entities. Given that the record is not sufficiently developed on the issue of how these records were obtained, we must reverse so much of Supreme Court’s order as denied plaintiff’s motion in limine as it pertains to the indictment and plea/sentencing transcript and remit to Supreme Court for further proceedings on the matter. Kokoska v Joe Tahan’s Furniture Liquidation Ctrs., Inc., 2025 NY Slip Op 04130, Third Dept 7-10-25

Practice Point: Pursuant to Criminal Procedure Law section 160.55, a sealing order does not extend to court records, as opposed to records kept by law enforcement and prosecutors. Here there was a question whether the defendants procured the indictment and plea transcript from the court. If so, the sealing order did not apply to them.

 

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ALTHOUGH A CHILD WAS PRESENT IN THE HOME WHEN FATHER STRUCK HIS PREGNANT GIRLFRIEND, THERE WAS NO EVIDENCE THE CHILD SAW OR HEARD THE INCIDENT AND NO EVIDENCE THE CHILD WAS UPSET BY THE INCIDENT; THE NEGLECT AND DERIVATIVE NEGLECT (OF THE THEN UNBORN CHILD) FINDINGS REVERSED (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence did not support the findings that father neglected a child and derivatively neglected a child who was not yet born at the time of the incident. The findings were based on an incident in which father struck his girlfriend, who was pregnant, while a child, Jolie M., was in the house. However, the evidence did not demonstrate Jolie M. witnessed or heard the incident:

The testimony of the father’s girlfriend and an ACS child protective specialist established that the father struck his girlfriend in the mouth while Jolie M. was in her nearby bedroom down the hallway. However, the testimony also indicated that Jolie M. did not see the incident or any resulting injuries, did not hear the father’s girlfriend’s plea for the father to stop hitting her, and was otherwise unaware that a domestic violence incident, as opposed to a mere verbal argument, was occurring … . Moreover, no evidence was offered to suggest that Jolie M. was frightened or upset by the incident, and the testimony established that, when recounting the events in a subsequent interview, the child presented a calm demeanor, interacted normally and comfortably with the father, and reportedly felt safe with the father … . In the absence of evidence that Jolie M.’s physical, mental, or emotional condition was impaired or in danger of becoming impaired by the father’s acts of violence against his girlfriend, the court’s finding that the father neglected that child is not supported by a preponderance of the evidence … .

Consequently, the Family Court’s further finding that the father derivatively neglected Jose M. based on the same domestic violence incident was not supported by a preponderance of the evidence … . Matter of Jose M. (Jose M.), 2025 NY Slip Op 04094, Second Dept 7-9-25

Practice Point: To prove neglect based upon domestic violence there must be proof the child saw or heard the incident and was upset by it.

 

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TO WARRANT SUMMARY JUDGMENT IN A SLIP AND FALL CASE BASED ON LACK OF NOTICE OF THE CONDITION, A DEFENDANT MUST PROVE WHEN THE SPECIFIC AREA OF THE FALL WAS LAST CLEANED OR INSPECTED; PROOF OF GENERAL CLEANING PRACTICES IS NOT ENOUGH (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined the defendant hospital did not demonstrate a lack of constructive notice of the water on the floor in front of the elevator. To warrant summary judgment the defendant must show that the area of the slip and fall was inspected or cleaned close in time to the fall. Evidence of general cleaning practices is not enough:

… [T]he defendant failed to establish, prima facie, that it did not have constructive notice of the alleged condition that caused the plaintiff to fall. The deposition testimony of the defendant’s security manager and of another employee of the defendant merely referred to the general cleaning and inspection practices at the hospital. The defendant did not proffer any evidence demonstrating when the specific area where the plaintiff fell was last cleaned or inspected before the accident … . Delfino v Montefiore Nyack Hosp., 2025 NY Slip Op 04082, Second Dept 7-9-25

Same issue and result in Freeman v New York City Hous. Auth., 2025 NY Slip op 04086, 7-9-25 Second Dept

Practice Point: A defendant seeking to prove it did not have constructive notice of the condition which caused a slip and fall must prove the area of the fall was cleaned or inspected close in time to the fall. Proof of general cleaning practices will not suffice.

 

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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.

 

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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.

 

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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.

 

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