You are here: / Evidence
,

DESPITE MOTHER’S VIOLATION OF SIX CONDITIONS OF A SUSPENDED JUDGMENT, TERMINATING HER PARENTAL RIGHTS WAS NOT IN THE BEST INTERESTS OF HER SPECIAL NEEDS CHILD (SECOND DEPT). ​

The Second Department, reversing Family Court, noting that mother had violated six conditions of a suspended judgment, determined it was not in the best interests of the child to terminate mother’s parental rights. The special needs child had been severely neglected by mother (medical neglect). However, mother demonstrated she genuinely loved the child and had learned how to care for him:

The record evidence demonstrated that the mother had learned how to provide the special care that the child needs and that the mother was emotionally attuned to the child’s needs … . Furthermore, the mother obtained stable housing and engaged in counseling … . While the mother expressed her distrust of the preventive services workers and refused to provide releases for her other children’s schools, the evidence demonstrated that the mother never denied the preventive services workers access to her home or to her other children.

The mother also made progress in addressing the issues that led to the child being removed from her custody by taking responsibility for the initial neglect that led to the child being removed from her care. Moreover, the mother has cooperated with other services and providers. In addition, the record demonstrates that the mother genuinely loves the child and has shown vigilance in attending to his needs. The testimony at the hearing demonstrated that the mother’s interaction with the child was appropriate, the visits were going well, and the interaction between the mother and the child has been positive. The record further demonstrates that the child’s siblings are connected to him and desire for him to return to the home. Finally, the mother has a support system in place that she had not had previously. Matter of Markel C. (Kwanza H.), 2019 NY Slip Op 03332, Second Dept 5-1-19

 

, ,

QUESTION OF FACT WHETHER DEFENDANT VIOLATED VEHICLE AND TRAFFIC LAW 1141 BY MAKING A LEFT TURN IN FRONT OF PLAINTIFF’S VEHICLE, DEFENDANT AVERRED PLAINTIFF WAS DRIVING TOO FAST, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s motion for summary judgment in this intersection traffic accident case should not have been granted. Although plaintiff made out a prima facie case, alleging the defendant, without warning, made a left turn in front of him in violation of Vehicle and Traffic law 1141, defendant raised a question of fact about whether she violated the statute by averring plaintiff was driving too fast:

Pursuant to Vehicle and Traffic Law § 1141, “[t]he driver of a vehicle intending to turn to the left within an intersection . . . shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard” … . A violation of this statute constitutes negligence per se … . …

The defendant driver averred that, as she approached the intersection, she slowed her vehicle, activated her left hand turn signal, and “looked to ensure that the roadway was clear.” As she was in the process of turning, she noticed the plaintiff’s vehicle for the first time and observed it traveling toward her at such an excessive rate of speed that she was unable to avoid the impact. The foregoing was sufficient to raise a triable issue of fact as to whether, at the time the defendant driver initiated her turn, the plaintiff’s vehicle was “so close as to constitute an immediate hazard” … . Brodney v Picinic, 2019 NY Slip Op 03314, Second Dept 5-1-19

 

, ,

DOCUMENTS RELIED UPON BY PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, DOCUMENTS SUBMITTED IN REPLY DID NOT SATISFY PLAINTIFF’S BURDEN TO MAKE OUT A PRIMA FACIE CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the documentary evidence relied upon by plaintiff in this foreclosure action did not meet the criteria for the business records exception to the hearsay rule. Plaintiff’s motion for summary judgment should not have been granted. The court noted that documents submitted in reply could not be considered to satisfy the plaintiff’s burden of making out a prima facie case:

Although “the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records, such records are nonetheless admissible if the recipient can establish personal knowledge of the maker’s business practices and procedures, or that the records provided by the maker were incorporated into the recipient’s own records or routinely relied upon by the recipient in its business” … . While [plaintiff’s vice president] averred, inter alia, that his affidavit was based on books and records maintained by the plaintiff, he did not state that Bank of America’s records were provided to the plaintiff and incorporated into the plaintiff’s own records, or that the plaintiff routinely relied upon such records in its business, or that he had personal knowledge of Bank of America’s business practices and procedures. Thus, he failed to lay the proper foundation for admission of these records … . The affidavit and documents submitted by the plaintiff for the first time in reply to the defendants’ opposition could not be used to satisfy the plaintiff’s prima facie burden.​ Tri-State Loan Acquisitions III, LLC v Litkowski, 2019 NY Slip Op 03398, Second Dept 5-1-19

 

,

EVEN THOUGH THE PRESUMPTION OF LEGITIMACY WAS NOT REBUTTED WITH RESPECT TO MOTHER’S HUSBAND IN THIS PATERNITY PROCEEDING, FAMILY COURT SHOULD HAVE APPLIED THE DOCTRINE OF EQUITABLE ESTOPPEL UNDER A ‘BEST INTERESTS OF THE CHILD’ ANALYSIS TO ADJUDICATE THE RESPONDENT, WITH WHOM A CHILD-PARENT BOND HAD DEVELOPED, THE FATHER (SECOND DEPT).

The Second Department, reversing Family Court, determined the doctrine of equitable estoppel should have been invoked by Family Court in this paternity proceeding to find it was in the best interests of the child to adjudicate the respondent, Ricardo R. E., father of the child. The petitioner-mother was married to Jorge E. T. at the time the child was conceived and born. Family Court relied on the presumption of legitimacy to adjudicate Jorge E. T. the father. The Second Department agreed with Family Court’s finding that the presumption of legitimacy was not rebutted:

Even if the presumption of legitimacy applies, the Family Court must proceed to an analysis of the best interests of the child before deciding whether to order a test … . To that end, the “paramount concern” in a proceeding to establish paternity is the best interests of the child, and the Family Court should hold a hearing addressed to that determination … . Importantly, biology is not dispositive in a court’s paternity determination … . …

… [W]e agree with the Family Court that the petitioner failed to rebut the presumption of legitimacy by clear and convincing evidence … . Nevertheless, regardless of the applicability of the presumption of legitimacy, the Family Court should not have refused to consider the issue of equitable estoppel raised by the petitioner and Ricardo R. E. in response to the husband’s assertion of paternity … . As relevant here, the doctrine “is a defense in a paternity proceeding which, among other applications, precludes a man from asserting his paternity when he acquiesced in the establishment of a strong parent-child bond between the child and another man” (… see … Family Ct Act § 522). It is significant that “courts impose equitable estoppel to protect the status interests of a child in an already recognized and operative parent-child relationship” … . While this doctrine is invoked in a variety of situations, “whether it is being used in the offensive posture to enforce rights or the defensive posture to prevent rights from being enforced, [it] is only to be used to protect the best interests of the child” … . For that reason, this dispute does not involve the equities between or among the adults. The case turns exclusively on the best interests of the child … . Matter of Onorina C.T. v Ricardo R.E., 2019 NY Slip Op 03345, Second Dept 5-1-19

 

,

ALTHOUGH THE POLICE RECEIVED AN ANONYMOUS TIP THAT A MAN MATCHING DEFENDANT’S DESCRIPTION HAD A GUN, THE POLICE SAW NO SIGN OF CRIMINAL ACTIVITY WHEN THEY APPROACHED AND QUESTIONED THE DEFENDANT, THE SUBSEQUENT SEIZURE AND FRISK OF THE DEFENDANT WAS ILLEGAL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, reversing defendant’s conviction, determined the police illegally seized and frisked the defendant when they had only a level two right to inquire. The police were given an anonymous tip that a black man in a bodega wearing a black coat with a fur hood had a gun. The defendant matched the description, but he was seized and frisked in the absence of any sign of criminal activity. The fact that the anonymous tip tended to identify a specific person was not enough to justify the seizure. The handgun should have been suppressed:

The police may not stop and frisk a person based solely on information furnished by an anonymous source that the person is carrying a gun … . Since an anonymous tip “seldom demonstrates the informant’s basis of knowledge or veracity,” it can only give rise to reasonable suspicion if accompanied by sufficient indicia of reliability … . The tip must “be reliable in its assertion of illegality, not just in its tendency to identify a determinate person” .​.. . …

One of the officers asked defendant if everything was okay, and he replied in the affirmative. Defendant then attempted to pass by the officers and exit the store. He was prevented from exiting when one of the officers “sidestepped to [his] right,” in order to “prevent [defendant] from leaving the store.” The officer testified at the hearing that they “decided to frisk [defendant] for [their] safety, since it came over as male with a firearm and he fit the description.” They walked defendant to the counter, which was 5 to 10 feet away. Defendant put his hands on the counter, and the officers proceeded to frisk him. The officer testified that defendant placed his hand inside his jacket pocket, whereupon he used force to pull defendant’s wrist from the pocket. The officer testified that when he grabbed defendant’s wrist a silver firearm fell to the ground.

The People argue that defendant’s action in putting his hand in his pocket gave rise to reasonable suspicion. The problem with this argument is that defendant was already seized prior to this point.  People v Brown, 2019 NY Slip Op 03305, First Dept 4-30-19

,

THE COMPLAINT ALLEGED THE ICY CONDITION EXISTED BEFORE 10 INCHES OF SNOW FELL, DEFENDANTS DID NOT DEMONSTRATE THEY DID NOT HAVE NOTICE OF THE ICE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. Plaintiff alleged the icy condition existed before the snow fell and defendants didn’t demonstrate a lack of notice of the icy condition:

Although it is undisputed that about 10 inches of snow fell about two hours before the … accident, Supreme Court should have denied [defendants’] summary judgment because their submissions failed to address the complaint’s allegations that the ice was on the sidewalk before that storm and that they received notice that it was there. Specifically, they failed to present evidence from someone with knowledge as to whether either entity received a complaint about the location before the storm commenced and the area’s condition before the new precipitation fell. Wolf v St. Vincent’s Catholic Med. Ctrs. of N.Y., 2019 NY Slip Op 03293, First Dept 4-30-19

 

, ,

REPORT OF FIRE MARSHAL, WHO HAD NO INDEPENDENT RECOLLECTION OF HIS INVESTIGATION INTO THE CAUSE OF THE FIRE, WAS ADMISSIBLE PURSUANT TO THE BUSINESS RECORD EXCEPTION TO THE HEARSAY RULE, COURT SHOULD NOT HAVE CONSIDERED A NEW THEORY OF LIABILITY RAISED FOR THE FIRST TIME IN PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff could not defeat a summary judgment motion by raising a new theory of liability in the opposing papers:

The report established that the fire marshal conducted an investigation at the subject premises and concluded that the fire in defendants’ building was caused by combustible clothing left in a dryer for too long, rather than any defect in the premises or dryer … . Although the fire marshal did not have an independent recollection of his investigation, his report was admissible under the business record exception to the hearsay rule, and was sufficient to satisfy defendants’ prima facie burden, since it noted that he independently inspected the premises and concluded that the accident was not due to defendants’ negligence … .

In opposition, plaintiff failed to raise a triable issue of fact. Her expert failed to address the theories of liability raised in the complaint and bill of particulars and failed to rebut defendants’ showing. Instead, plaintiff’s expert raised a new theory, namely that plaintiff’s injuries from smoke inhalation were caused by the absence of a self-closing door in the laundry room where the fire occurred, which caused smoke to permeate into plaintiff’s apartment. A plaintiff cannot defeat a summary judgment motion by asserting a new theory of liability for the first time in opposition papers … . Mirdita v Musovic Realty Corp., 2019 NY Slip Op 03284, First Dept 4-30-19

 

,

THE AFFIDAVIT WHICH PURPORTED TO DEMONSTRATE PLAINTIFF HAD STANDING TO BRING THE FORECLOSURE ACTION REFERRED TO UNIDENTIFIED AND UNPRODUCED RECORDS AND THEREFORE LACKED ANY PROBATIVE VALUE (FIRST DEPT).

The First Department, reversing Supreme Court, over a dissent, determined plaintiff failed to demonstrate standing to bring the foreclosure proceedings:

Plaintiff cannot establish that the note was assigned to it by a written assignment prior to commencement of foreclosure proceedings. Therefore, it must “adequately prove[] that it did, indeed, have possession of the note prior to commencement of this action” … , and where an affiant’s knowledge is based on unidentified and unproduced records, “the affidavit lacks any probative value” and cannot be the basis for an award of summary judgment … . Since plaintiff has failed to establish that it had physical possession of the note prior to commencement of this action, we reverse the motion court’s award of summary judgment to plaintiff. Residential Credit Solutions, Inc. v Gould, 2019 NY Slip Op 03266, First Dept 4-30-19​

 

,

POLICE EFFECTIVELY SEIZED DEFENDANT BY BLOCKING DEFENDANT’S VEHICLE WITH TWO POLICE CARS, BECAUSE THE SEIZURE TOOK PLACE IN THE ABSENCE OF REASONABLE SUSPICION A PARTICULAR PERSON WAS INVOLVED IN A CRIME THE TANGIBLE EVIDENCE SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and suppressing the tangible evidence, determined the police effectively seized defendant by blocking in defendant’s vehicle with two police cars without sufficient cause:

The conviction arises from a police encounter during which an officer approached the parked vehicle in which defendant was a passenger and observed that defendant was in possession of a handgun. We agree with defendant that the police lacked reasonable suspicion to justify the initial seizure of the vehicle, and thus Supreme Court erred in refusing to suppress both the tangible property seized, i.e., the weapon, and statements defendant made to the police at the time of his arrest. Here, police officers effectively seized the vehicle in which defendant was riding when their two patrol cars entered the parking lot in such a manner as to prevent the vehicle from being driven away … . The police had, at most, a “founded suspicion that criminal activity [was] afoot,” which permitted them to approach the vehicle and make a common-law inquiry of its occupants. They did not, however, have “reasonable suspicion that [a] particular individual was involved in a felony or misdemeanor” to justify the seizure that occurred here …, and thus the weapon and defendant’s statements should have been suppressed. People v Suttles, 2019 NY Slip Op 03158, Fourth Dept 4-26-19

 

, ,

FOR CAUSE JUROR CHALLENGES SHOULD HAVE BEEN GRANTED, JURORS COULD NOT UNEQUIVOCALLY STATE THEY COULD PUT ASIDE THEIR RESERVATIONS AND BE FAIR AND IMPARTIAL, BECAUSE THERE WILL BE A NEW TRIAL AND BECAUSE AN APPELLATE COURT CANNOT CONSIDER ISSUES NOT RULED UPON BY THE TRIAL COURT, THE TRIAL COURT WAS DIRECTED TO CONSIDER TWO EVIDENTIARY ISSUES, ONE RAISED BY THE PEOPLE, AND ONE RAISED BY THE DEFENSE (FOURTH DEPT).

The Fourth Department reversed defendant’s conviction because for cause challenges to two jurors were denied. Neither juror gave unequivocal assurances that she could be fair and impartial, in fact one juror expressly said she would continue to think defendant was involved based solely on his presence in the courtroom. In the interest of judicial economy, because there will be a new trial, the Fourth Department indicated the court erred in finding defendant’s cell phone was lawfully seized from defendant’s vehicle incident to arrest to protect evidence in defendant’s grabbable area from destruction or concealment. The Fourth Department noted it could not consider the People’s argument the cell phone was lawfully seized pursuant to the automobile exception to the warrant requirement because Supreme Court didn’t rule on that issue. The Fourth Department directed Supreme Court to make a ruling. The Fourth Department further directed Supreme Court to rule on whether an unavailable witness’s hearsay statement should be admitted pursuant to defendant’s rights to put on a defense and due process. Defendant had raised that issue but Supreme Court did not rule on it. With respect to the for cause juror challenges, the court wrote:

“It is well settled that a prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the [prospective] juror states unequivocally on the record that he or she can be fair and impartial’ “… . Although CPL 270.20 (1) (b) “does not require any particular expurgatory oath or talismanic’ words . . . , [a prospective] juror[] must clearly express that any prior experiences or opinions that reveal the potential for bias will not prevent [him or her] from reaching an impartial verdict” … . People v Clark, 2019 NY Slip Op 03231, Fourth Dept 4-26-19

 

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