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BECAUSE THE RES IPSA LOQUITUR DOCTRINE IS DEPENDENT UPON CIRCUMSTANTIAL EVIDENCE FROM WHICH INFERENCES MUST BE DRAWN, SUMMARY JUDGMENT IS USUALLY NOT APPROPRIATE; HERE A GARAGE DOOR CLOSED OR FELL ON PLAINTIFF; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the res ipsa loquitur doctrine was not a proper basis for granting plaintiff’s summary judgment motion. Plaintiff was injured when a garage door at defendant’s vehicle-repair shop closed on her as she left the customer waiting area. Plaintiff could have used an exterior door rather than the open garage door:

“The doctrine of res ipsa loquitur permits an inference of negligence to be drawn solely from the happening of an accident” … . It requires evidence of an event which ordinarily does not occur in the absence of negligence, was caused by an agency or instrumentality within the exclusive control of the defendant, and was not due to any voluntary action or contribution on the part of the plaintiff … . “Since the circumstantial evidence allows but does not require the jury to infer that the defendant was negligent, res ipsa loquitur evidence does not ordinarily or automatically entitle the plaintiff to summary judgment, even if the plaintiff’s circumstantial evidence is unrefuted” … . Summary judgment on the issue of liability should only be granted “in the rarest of res ipsa loquitur cases” where “the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of [the] defendant’s negligence is inescapable” … .

Here, the plaintiff did not establish, by sufficiently convincing circumstantial proof, “that the inference of [the] defendant’s negligence is inescapable” … . Specifically, the plaintiff failed to submit sufficiently convincing circumstantial proof that the garage door and its mechanism were within the defendant’s exclusive control, and that the accident was not due to any fault on the part of the plaintiff … . “‘In those cases where conflicting inferences may be drawn, choice of inference must be made by the jury'” … . Hafeez v TT of Freeport, 2025 NY Slip Op 02327, Second Dept 4-23-25

Practice Point: Consult this decision for insight into the proof requirements for liability under the res ipsa loquitur doctrine.​

Practice Point: Because the res ipsa loquitur doctrine is dependent upon circumstantial evidence, summary judgment is rarely appropriate even where plaintiff’s evidence is unrefuted.

 

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DEFENDANT IN THIS SLIP AND FALL CASE DID NOT PROVE WHEN THE AREA OF THE FALL WAS LAST INSPECTED OR CLEANED; THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION AND WAS NOT ENTITLED TO SUMMARY JUDGMENT; PROOF OF GENERAL CLEANING PRACTICES IS NOT ENOUGH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant in this slip and fall did not demonstrate a lack of constructive notice of the flower petals on the floor which caused plaintiff to slip and fall. Therefore defendant was not entitled to summary judgment. A lack of constructive notice can be demonstrated by proof the area was inspected or cleaned close in time to the fall. Proof of general cleaning practices is not sufficient to raise a question of fact on the issue:

A defendant moving for summary judgment in a slip-and-fall case must establish, prima facie, that it did not create the condition that allegedly caused the fall or have actual or constructive notice of that condition for a sufficient length of time to remedy it … . “To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and remedy it” … . In order to meet its prima facie burden “on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … . “Reference to general cleaning practices is insufficient to establish a lack of constructive notice in the absence of evidence regarding specific cleaning or inspection of the area in question” … .

Here, the defendant failed to demonstrate, prima facie, that it lacked constructive notice of the alleged condition … . The defendant did not submit any evidence with respect to specific cleaning or inspection of the area in question “or any other affirmative proof to demonstrate how long the condition had existed” … . The deposition testimony and affidavit submitted by the defendant as to general cleaning procedures were insufficient to establish lack of constructive notice … . Lisker v Vue Catering, Inc., 2025 NY Slip Op 02196, Second Dept 4-16-25

Practice Point: This genre of reversals appeared monthly for many years. Now these decisions are few and far between. The key issue: to demonstrate a lack of constructive notice of the condition which caused plaintiff’s slip and fall a defendant must prove the area was inspected or cleaned close in time to the fall. Proof of general cleaning schedules is not enough.​

 

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UNLIKE A LEVEL-ONE OR LEVEL-TWO STREET STOP, A LEVEL-THREE STREET STOP JUSTIFIES POLICE PURSUIT, EVEN IF THE REASON FOR THE STOP, HERE AN APPARENT IMPENDING ASSAULT, WAS DISSIPATED BY THE SUSPECT’S FLIGHT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, affirming the appellate division, determined the police were justified in pursuing the defendant after a level three street stop, even though, at the time of the pursuit, the initial reason for the stop, an apparent impending attack on a pedestrian, had dissipated:

We have previously held that an individual’s flight from a level one or two police encounter, without more, does not provide the reasonable suspicion necessary to pursue them (see People v Holmes, 81 NY2d 1056, 1058 [1993]; People v May, 81 NY2d 725, 728 [1992]; see generally People v De Bour 40 NY2d 210 [1976]). We now hold that when a suspect flees during a lawful level three stop founded on reasonable suspicion of criminal activity, police may pursue the suspect.

… At the suppression hearing, Officer Kyle Eisenhauer of the Rochester Police Department testified that, on the night of the arrest, he was in uniform in an unmarked patrol vehicle with his partner, Officer Jeremy Nellist. The two were driving behind a sedan when a woman on the sidewalk threw a glass bottle at the sedan, which then came to a stop in the middle of the street. Defendant exited the driver’s door of the sedan and “in a very aggressive manner” began yelling at the woman and approached her with clenched fists. According to Eisenhauer, “[i]t appeared [that defendant] was . . . about to attack” the woman. Eisenhauer and Nellist exited their patrol car and told defendant to stop, and defendant “stopped and looked in [their] direction.” The uniformed officers were about 25 feet away from defendant without their guns drawn. Defendant “began to back away, and then quickly turned and began digging in the front of his waistband and running” away from the officers, leaving his car in the middle of the street with the driver’s door open. The officers followed in pursuit. * * *

We reject the notion that a suspect can legally flee a level three stop so long as their flight dissipates the reasonable suspicion of the crime that initially gave rise to the stop. People v Cleveland, 2025 NY Slip Op 02144, CtApp 4-15-25

Practice Point: If the police have reasonable suspicion of criminal activity at the time of a level three street stop, they may pursue the fleeing suspect, even if the initial reason for the stop (here an apparent impending assault) is dissipated by the flight. In contrast, flight from a level one or level two street stop does not justify pursuit.

 

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THE CHARGES STEMMED FROM A DEMONSTRATION SPARKED BY THE POLICE KILLING OF GEORGE FLOYD; DEFENDANT THREW TWO MOLOTOV COCKTAILS TOWARD POLICE OFFICERS; THE EVIDENCE DEFENDANT ENGAGED IN “TERRORISM” WAS LEGALLY INSUFFICIENT; SENTENCE REDUCED (THIRD DEPT).

The Third Department, vacating defendant’s “terrorism” conviction and significantly reducing his sentence, in a full-fledged opinion by Justice McShan, determined the “attempted aggravated assault upon a police officer as a crime of terrorism” conviction was not supported by legally sufficient evidence. The charges stemmed from a demonstration sparked by the police killing of George Floyd in 2020. The demonstration turned violent and defendant was captured on video throwing two Molotov cocktails toward police officers:

… “[T]he statute must be applied only in a manner consistent with the unique meaning of the term terrorism by requiring proof of conduct aimed at influencing, as relevant here, government action” … . More specifically, that the conduct was taken with the intent to influence a policy. The term “policy,” undefined in the statute (see Penal Law § 490.05), is readily understood as “[a] standard course of action that has been officially established by an organization, business, political party” … . In that sense, the phrase “influence the policy of a unit of government” encompasses a different intent on the part of a defendant that is more specific to a defined policy … . This is all the more evident when considering the clause that follows, as the interference with law enforcement duties referenced by the People is more aptly characterized as conduct that would “affect the conduct of a unit of government,” which contains [*5]the additional requirement that it be accomplished “by murder, assassination or kidnapping” (Penal Law § 490.25 [1]). The import of this distinction is that the reference to “policy” utilized in Penal Law § 490.25 (1) requires more than a belief that the government is engaging in some form of misconduct; in this case, systemic racism or police brutality.

… [T]he fact that defendant was motivated by his animus toward law enforcement does not in turn establish that he was attempting to influence any policy, either defined or perceived. People v Parker, 2025 NY Slip Op 02108, Third Dept 4-10-25

Practice Point: Consult this decision for a discussion of the proof requirements for “terrorism” in the context “assault upon a police officer as a crime of terrorism.”

 

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THE NOTE WAS ENDORSED IN BLANK REQUIRING PLAINTIFF TO DEMONSTRATE POSSESSION OF THE NOTE AT THE TIME THE FORECLOSURE ACTION WAS COMMENCED; FAILURE TO DEMONSTRATE POSSESSION CONSTITUTED A FAILURE TO DEMONSTRATE STANDING TO FORECLOSE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the plaintiff mortgage company did not demonstrate standing to foreclose. The note was endorsed in blank, meaning that it was payable to any bearer of the instrument. Therefore the plaintiff was required to show possession of the note at the time the action was commenced. The evidence submitted was insufficient:

Despite being the originator of the note, the record fails to demonstrate whether plaintiff reacquired the note prior to commencement of this action in order to satisfy its moving burden. Plaintiff’s reliance on JP Morgan Chase Bank, N.A. v Venture (148 AD3d 1269, 1270-1271 [3d Dept 2017]) is misplaced. Although the type of indorsement was not identified in the decision that was handed down, we take judicial notice of the record filed in that matter and confirm that the note annexed to the complaint in Venture contained a special indorsement payable to only plaintiff … . This is materially different than here, where the note was indorsed in blank, meaning it was payable to any bearer of the instrument (see UCC 1-201 [b] [21] [B]), therefore requiring plaintiff to perform the additional step of proving possession at the time of commencement … . Neither the moving attorney affirmation nor the affidavit of merit for the loan servicer/attorney-in-fact are sufficient to do so. We further reject plaintiff’s contention that the complaint was sufficient to establish possession of the note at commencement, as the complaint contained conflicting allegations and was unverified, and therefore it lacked the evidentiary value to support such claim … . United Wholesale Mtge., LLC v Smith, 2025 NY Slip Op 02117, Third Dept 4-10-25

Practice Point: Consult this decision for some insight into the proof required to demonstrate a note, endorsed in blank, was possessed by the plaintiff at the time the foreclosure action was commenced. If the defendant raises plaintiff’s lack of standing as an issue, the plaintiff must prove possession at commencement in order to proceed.​

 

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THE BEST EVIDENCE OF THE VALUE OF REAL PROPERTY FOR PROPERTY-TAX-ASSESSMENT PURPOSES IS A RECENT ARMS-LENGTH SALE; ASSESSMENT REDUCED (THIRD DEPT).

The Third Department, reversing Supreme Court and lowering the property tax assessment of petitioners’ property, determined the best evidence of the value of the property is an arms-length sale for an amount $750,000 less than the assessment:

“In an RPTL article 7 tax certiorari proceeding, a rebuttable presumption of validity attaches to the valuation of property made by the taxing authority” … . Therefore, on a summary judgment motion, a petitioner bears the initial burden of “presenting substantial evidence to demonstrate that the subject property was overvalued” … . In considering whether this minimal threshold has been met … , “[i]t is well settled that the best evidence of market value is a recent sale of the subject property between a seller under no compulsion to sell and a buyer under no compulsion to buy” … .

Petitioners submitted evidence that the December 20, 2020 sale for $3,495,000, occurring 18 months prior to the July 1, 2022 valuation date, was carried out at arm’s length. This was sufficient to rebut the presumption of the assessment’s validity and to satisfy petitioners’ burden on summary judgment … . …

… [R]espondents provided no support for their valuation of $4,257,000, a 22% increase in value since the sale just 18 months prior … . The assessor’s broad claim that the market for properties such as this one “rose remarkably” during that time was conclusory … , and his assertion regarding the types of approaches “[g]enerally” used to establish fair market value did not indicate whether either or both of those approaches were used in this particular instance. The fact that respondents engaged an outside appraisal firm while completing their town-wide revaluation is also of no moment, as respondents did not show how that firm evaluated this particular property or what conclusions it reached. As such, petitioners’ motion should have been granted … . Matter of Robins v Board of Assessment Review, 2025 NY Slip Op 02119, Third Dept 4-9-25

Practice Point: Here the tax assessor’s claim that property values had risen “remarkably” did not raise a question of fact in this tax certiorari proceeding seeking a reduction of the property-tax assessment. The best evidence of the value of the property was deemed to be the amount of a recent arms-length sale of the property.

 

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THE ALLEGATION A SCAFFOLD COLLAPSED AND FELL ON PLAINTIFF SUPPORTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF NEED NOT DEMONSTRATE THE SCAFFOLD WAS DEFECTIVE; THE FACT THAT PLAINTIFF DID NOT SEE THE SCAFFOLD FALL WAS IRRELEVANT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the allegation that a scaffold collapsed and fell on plaintiff warranted summary judgment on the Labor Law 240(1) cause of action. The plaintiff was not required to show the scaffold was defective and the fact that plaintiff did not see the scaffold fall was not relevant:

Plaintiff was struck by a wooden plank dropped by coworkers while constructing the second level of a 16-foot tall, wheeled scaffold and then was struck by the scaffold when it fell over and landed on top of him. Plaintiff is entitled to summary judgment. The collapse of a scaffold is one of those special hazards contemplated by the statute, and an accident caused by a scaffold collapse is prima facie evidence of a Labor Law § 240(1) violation …  Cabgram’s argument that summary judgment is not warranted because the scaffold was not defective is unpersuasive because plaintiff need not demonstrate that the scaffold was defective to establish his prima facie case … . Nor is it relevant that plaintiff did not see the scaffold tip over, inasmuch as his back was turned when the accident occurred … . Alonso v Cabgram Dev., LLC, 2025 NY Slip Op 02029, First Dept 4-8-25

Practice Point: Injury from a collapsing scaffold warrants summary judgment on a Labor Law 240(1) cause of action without proof the scaffold was defective.

 

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SUPREME COURT HELD A HEARSAY STATEMENT ATTRIBUTED TO PLAINTIFF WAS ADMISSIBLE AS AN EXCITED UTTERANCE AND RAISED A QUESTION OF FACT IN THIS LADDER-FALL CASE; THE FIRST DEPARTMENT RULED THE STATEMENT WAS NOT MADE “UNDER STRESS OF EXCITEMENT” AND WAS THEREFORE INADMISSIBLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this Labor Law 240(1) ladder-fall case should have been granted. Plaintiff demonstrated a piece of duct, which should have been secured, fell and knocked him off the ladder. The defendant alleged that plaintiff told the foreman he fell because he jumped down several rungs. That hearsay statement was admitted as an excited utterance. The First Department held the statement was not made “under stress of excitement” and should not have been admitted in evidence:

Defendant submitted the affidavit of its foreman, who averred that after the accident, plaintiff told him that he, plaintiff, fell from the ladder because he had jumped down several rungs. Supreme Court admitted this statement under the excited utterance exception to the hearsay rule, finding that it raised a triable issue of fact sufficient to defeat summary judgment. This finding was error. According to the foreman, plaintiff was taking a break and told the foreman that he felt “fine” when he made the statement. Thus, there was no evidence that plaintiff made the purported hearsay statement “under the stress of excitement” … . As defendant did not argue any other valid basis for admitting the hearsay statement, it is “insufficient to defeat summary judgment” … , and there was no other admissible evidence in opposition to plaintiff’s motion. Vivar v Citigroup Tech., Inc., 2025 NY Slip Op 02051, First Dept 4-8-25

Practice Point: Here, whether the defendant raised a question of fact in this ladder-fall case turned on whether plaintiff’s alleged statement that he fell because he “jumped down several rungs” was admissible as an excited utterance. The First Department determined the alleged hearsay statement was not made “under stress of excitement” and was inadmissible. Therefore plaintiff’s motion for summary judgment should have been granted.

 

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DEFENSE COUNSEL ALLOWED EVIDENCE PRECLUDED BY A SANDOVAL RULING TO COME IN, AND DID NOT OBJECT TO HEARSAY WHICH REFUTED DEFENDANT’S ALIBI; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, determined defense counsel was ineffective for allowing the introduction of evidence which violated a Sandoval ruling. The court ruled the People could not introduce evidence of defendant’s rape conviction. But the People elicited testimony from defendant’s parole officer (Kellett) indicating defendant was a sex offender. In addition, hearsay testimony which refuted an alibi defendant did not attempt to present at trial was allowed in without objection by defense counsel:

Kellett’s testimony effectively circumvented the court’s earlier Sandoval ruling precluding the introduction of defendant’s past rape conviction by allowing her to testify that defendant was a sex offender … . The People had already affirmed on the record that they would not seek to introduce the basis for defendant’s parole supervision, and defendant had consented to this so long as the testimony be restricted and a limiting instruction provided. The details offered by Kellett were not necessary to establish defendant’s status as a parolee, as she could have merely testified that defendant was under parole supervision without elaborating upon his status as a sex offender. Despite the crimes charged not being of a sexual nature, the testimony in question introduced highly prejudicial information that “ha[d] no purpose other than to show that . . . defendant is of a criminal bent or character and thus likely to have committed the crime[s] charged” … . However, trial counsel made no objection to this testimony or, in the alternative, no request for a curative instruction. Thus, the prejudice resulting from this testimony was not dissipated “by promptly and clearly advising the jury that the comments were improper and should be completely disregarded” … . * * *

Although we find this error on the part of trial counsel to have, by itself, deprived defendant of a fair trial … , we would be remiss not to briefly address trial counsel’s failure to object to law enforcement testimony describing interviews with individuals who refuted defendant’s previously claimed alibi. This testimony presented arguably inadmissible evidence of a hearsay nature, which defendant claims presented a Crawford violation … . However, trial counsel lodged no objection, essentially allowing defendant to be impeached regarding an alibi he did not attempt to present at trial. People v Franklin, 2025 NY Slip Op 01975, Third Dept 4-3-25

Practice Point: Here a Sandoval ruling excluded evidence defendant had been convicted of rape but the People, through defendant’s parole officer, introduced evidence defendant was a sex offender. Defense counsel did not object. The failure to object was deemed ineffective assistance requiring a new trial.

 

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DEFENSE COUNSEL VOUCHED FOR THE CREDIBILITY OF THE VICTIM, DID NOT OBJECT WHEN THE PROSECUTOR VOUCHED FOR THE CREDIBILITY OF THE VICTIM, AND ALLOWED EVIDENCE OF DEFENDANT’S PRIOR CRIMES TO COME IN DESPITE A SANDOVAL RULING KEEPING IT OUT; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction in this sex-offense case and ordering a new trial, determined defense counsel did not provide effective assistance. Defense counsel vouched for the credibility of the victim and allowed evidence of defendant’s prior crimes to come in, despite a Sandoval ruling keeping it out:

… [D]uring counsel’s opening statement, he commented that, in his training representing victims of sexual assault, “the first thing I had to do was believe the accuser. I didn’t have a problem with that. I mean, why would someone make up an important detail or leave out certain details and accuse someone of a crime like rape?” Not only did counsel seemingly vouch for the victim’s credibility in this first opportunity to address the jury, but he also did the same in his summation, again reminding the jury that he had represented victims of sexual assault, stating that he “start[s] by believing it. I don’t sense any ill will from [the victim]” and that he knew “a verdict of not guilty in this case is not going to make anyone happy.” … . * * *

… [D]efense counsel elicited testimony that defendant had been in and out of jail for 10 years, was a regular drug user, had sold cocaine before and was a parolee who was violating parole conditions by being out past curfew as well as consuming alcohol and cocaine … on the night of the incident. Thereafter, when defendant chose to testify as to his version of events, County Court determined that since defense counsel had questioned the friend regarding defendant having been on parole at the time of the incident and in and out of prison for 10 years, the door had been opened for the People to pursue those lines of questioning with defendant on cross-examination. * * *

Compounding these errors, during the People’s summation, the prosecutor repeatedly improperly vouched for the victim’s credibility … , without objection from defense counsel, one time going so far as to say that the victim “testified credibly, consistently, believably and authentically.” Defense counsel’s failure to object to this repeated vouching is even more problematic given his own insinuations that the victim, as a sexual assault victim, should be believed. People v Monk, 2025 NY Slip Op 01976, Third Dept 4-3-25

Practice Point: It is difficult to think of a defense trial strategy that would include vouching for the credibility of the victim in a sex offense case. It is difficult to think of a defense trial strategy that would include allowing evidence of defendant’s prior crimes, which was the subject of a Sandoval ruling keeping it out, to come in. A trial, first and foremost, is an adversarial proceeding.

 

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