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ALTHOUGH THERE WAS PROOF THE 90-DAY NOTICES WERE MAILED TO THE PRO SE PLAINTIFFS, THERE WAS ALSO PROOF THE MAIL WAS NOT DELIVERED AND WAS RETURNED; WITHOUT PROOF PLAINTIFFS ACTUALLY RECEIVED THE 90-DAY NOTICES, THE COURT SHOULD NOT HAVE DISMISSED THE ACTION FOR WANT OF PROSECUTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to dismiss the action for want of prosecution should not have been granted. Although there was proof defendants (the Cohens) mailed the 90-day notices to the pro se plaintiffs, there was no proof the notices were received (the mailings were returned):

In August 2023, more than a year after the expiration of the stay, the Cohens moved … pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute. In support of the motion, the Cohens submitted evidence that in August 2022 they mailed 90-day demands pursuant to CPLR 3216(b)(3) to the plaintiffs, who were then pro se, by certified mail. The Cohens also submitted evidence, however, that the mailings were returned to them. The United States Postal Service tracking history submitted by the Cohens indicated that one delivery was attempted and that five days later a reminder was sent to schedule redelivery before the mailings were returned to the sender. * * *

CPLR 3216 permits a court to dismiss an action for want of prosecution only after the court or the defendant has served the plaintiff with a written demand requiring the plaintiff “to resume prosecution of the action and to serve and file a note of issue within [90] days after receipt of such demand” … . “Notably, the time within which the plaintiff must act runs from the receipt, and not the service of the demand” … . Here, in support of their motion, the Cohens submitted proof that the 90-day demands were not received by the plaintiffs. Kurbonov v Cohen, 2026 NY Slip Op 01044, Second Dept 2-25-26

Practice Point: To support a motion to dismiss for want of prosecution, the defendant must proof the 90-day notice was actually received by the pro se plaintiff. Proof of mailing is not enough.

 

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THE PEOPLE DID NOT DEMONSTRATE DEFENDANT’S VEHICLE WAS PROPERLY IMPOUNDED; THEREFORE THE ITEMS SEIZED DURING THE SUBSEQUENT INVENTORY SEARCH SHOULD HAVE BEEN SUPPRESSED; CONVICTIONS VACATED (SECOND DEPT).

The Second Department, reversing the denial of defendant’s suppression motion and vacating the convictions, determined the People did not demonstrate the proper procedure for impounding defendant’s vehicle (which was subjected to an inventory search) was followed:

The People failed to establish the lawfulness of the impoundment of the defendant’s vehicle and subsequent inventory search … . At a suppression hearing, the arresting officer equivocated on whether or not the vehicle was parked legally on the street, and he did not testify as to the posted time limits pertaining to the parking space at which the defendant had pulled over. Although the officer testified that he had to impound the vehicle to safeguard it at the precinct station house and “for further investigation,” the People presented no evidence demonstrating any history of burglary or vandalism in the area where the defendant had pulled over the vehicle. Thus, the People failed to establish that the impoundment of the vehicle was in the interests of public safety or part of the police’s community caretaking function … . Moreover, the People failed to present any evidence as to whether the New York City Police Department had a policy regarding impoundment of vehicles, what that policy required, or whether the arresting officer complied with that policy when he impounded the defendant’s vehicle … .

Accordingly, the impoundment of the defendant’s vehicle was unlawful, and the physical evidence that was recovered from the vehicle during the inventory search subsequent to that impoundment must be suppressed as fruits of the unlawful impoundment … . People v McClarin, 2026 NY Slip Op 01076, Second Dept 2-25-26

Practice Point: Consult this decision for insight into the valid grounds and procedures for impounding a vehicle and the consequences of improperly impounding a vehicle. Here all the items seized in an inventory search after the improper impoundment were suppressed and the convictions were vacated.

 

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HERE THE SCHOOL DISTRICT HAD ACTUAL KNOWLEDGE OF THE NATURE OF EACH NEGLIGENT-SUPERVISION CLAIM WITHIN 90 DAYS OF THE INCIDENTS; WHERE A SCHOOL HAS TIMELY ACTUAL KNOWLEDGE OF THE FACTS UNDERLYING A CLAIM, THE ABSENCE OF AN ADEQUATE EXCUSE FOR FAILING TO TIMELY FILE A NOTICE OF CLAIM IS NOT A BAR TO GRANTING LEAVE TO FILE A LATE NOTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim against defendant school district should been granted. The petition alleged negligent supervision a student who was assaulted, harassed, and bullied on specific occasions. There were contemporaneous incident reports. The school district, therefore, had knowledge of the nature of the claims within 90 days of each incident:

… [T]he petitioner established that the School District had actual knowledge of the essential facts constituting the claim within 90 days of each incident included in the notice of claim. The petitioner submitted, among other things, incident reports and documentation of investigations conducted by the School District within days of the incidents … , police reports that documented communications and an investigation by school officials … , an electronic communication between the petitioner and a school official … , and an “[a]ction [p]lan” created pursuant to a meeting between the petitioner and school officials where the alleged wrongful conduct and the plans to monitor the students and address the conduct were discussed … .

As the petitioner demonstrated that the School District acquired timely knowledge of the essential facts constituting the claim, the petitioner met her initial burden of showing that the School District would not be prejudiced by the late notice of claim … . In opposition to the petitioner’s initial showing, the School District failed to come forward with particularized evidence showing that the late notice had substantially prejudiced its ability to defend the claim on the merits … .

Although the petitioner failed to demonstrate a reasonable excuse for her failure to timely serve the notice of claim, “where, as here, there is actual knowledge and an absence of prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of claim” … . Matter of Polito v North Babylon Sch. Dist., 2026 NY Slip Op 01067, Second Dept 2-25-26

Practice Point: In the context of a petition for leave to file a late notice of claim against a school district, the absence of a reasonable excuse for timely filing the claim may be overlooked where it is demonstrated the school had timely knowledge of the facts underlying the claims.

 

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A POLICE CAR RESPONDING AN EMERGENCY CALL SWERVED INTO A TURN LANE TO PASS A CAR AND STRUCK A SKATEBOARDER; THERE WERE QUESTIONS OF FACT WHETHER THE OFFICER ACTED WITH “RECKLESS DISREGARD FOR THE SAFETY OF OTHERS” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined (1) the “reckless disregard” standard for liability applied to this accident involving a police car and a skateboarder, and (2) the county defendants did not eliminate all questions of fact about whether the “reckless disregard” standard was met. The officer was responding a call from a woman in labor with complications. The officer struck the skateboarder, who was in a turn lane, when the officer swerved into the turn lane to pass a car:

The “reckless disregard” standard demands more than a showing of a lack of “due care under the circumstances” … . “It requires evidence that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome” … . “This standard requires a showing of more than a momentary lapse in judgment” … .

Here, the defendants established that the reckless disregard standard of Vehicle and Traffic Law § 1104 was applicable to Degere’s [the officer’s] conduct because he was responding to a radio call of a woman going into labor with complications … . However, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint because their moving papers failed to eliminate all issues of material fact regarding whether Degere acted recklessly by either traveling at a high speed in the center turn lane in a school zone with poor lighting conditions or abruptly merging into the center turn lane without first looking to his left or activating his turn signal … . Moccasin v Suffolk County, 2026 NY Slip Op 01049, Second Dept 2-25-26

Practice Point: Consult this decision for insight into what constitutes “reckless disregard for the safety of others” within the meaning of Vehicle and Traffic Law 1104 in the context of a police officer responding to an emergency call.

 

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ALTHOUGH DEFENDANT WAS ARRESTED OUTSIDE THE HOME, HE WAS COERCED INTO TO LEAVING BY A SHOW OF FORCE BY THE POLICE; THEREFORE THE WARRANTLESS ARREST VIOLATED PAYTON; WHETHER THE TENANT’S SUBSEQUENT CONSENT TO SEARCH WAS VOLUNTARY WAS DECIDED BY THE APPELLATE DIVISION USING THE WRONG CRITERIA; MATTER REMITTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a three-judge dissent, determined (1) the Fourth Department properly held that the warrantless arrest of the defendant outside the home violated Payton (445 US 573) and (2) the Fourth Department used the wrong criteria when it ruled the tenant’s consent to search the premises after defendant’s arrest was voluntary. The case was remitted to the Fourth Department for a ruling on the validity of the consent to search applying the correct criteria:

… Fifteen members of the Monroe County SWAT team and additional uniformed officers arrived at the apartment in an armored vehicle called a BearCat. The SWAT team members wore body armor and camouflage tactical clothing and carried assault rifles. The defendant did not live in the apartment but had been there for approximately 18 hours and stayed overnight the prior evening. An officer admitted that the police chose not to obtain an arrest warrant for the defendant because they wanted to interview him before his right to counsel attached.

A police investigator testified that upon seeing the defendant through the apartment window, he shouted at him to “come on out, house is surrounded . . . come out empty handed and come out with your hands up.” The defendant … exited the building, at which point he was taken into custody. Officers then entered the apartment and ordered the tenant and her cousin to “come out with [their] hands up” and lie face down with “guns to [them].” The tenant testified that she was scared; she and her cousin were handcuffed; and the police separated them and put the tenant into the back of a police patrol car, where she could not see her cousin and remained for approximately five to seven minutes. An officer obtained the tenant’s consent to search. * * *

When officers subject someone to a display of authority that induces them to exit the home under coercion, the sanctity of the home has been invaded to the same extent as if the officers had physically entered. Such a show of force violates Payton and renders an arrest unlawful … . * * *

… [T]he Appellate Division applied an incorrect legal standard in considering the validity of the tenant’s consent. People v Gonzalez (39 NY2d 122, 128-130 [1976]) sets forth the factors that should be considered in determining whether the consent was voluntary. Those include “whether the consenter is in custody or under arrest”; “the circumstances surrounding the custody or arrest,” including whether the person was “confronted by a large number of police agents”; whether the person was handcuffed; “the background of the consenter,” including their age and prior experience with police; “whether the consenter has been . . . evasive or uncooperative with the law enforcement authorities”; and “whether [the person] was advised of [their] right to refuse to consent” … .  The Appellate Division instead recited and applied the factors set forth in People v Borges (69 NY2d 1031, 1033 [1987]), which go to whether voluntary consent was attenuated from an illegal arrest, not whether the consent itself was voluntary. People v Shaw, 2026 NY Slip Op 00961, CtApp 2-19-26

Practice Point: If a person is coerced by the police into leaving his home by a show of force, a warrantless arrest outside the home violates Payton and is illegal.

Practice Point: Consult this opinion for insight into when a consent to search obtained by the police can be considered voluntarily given.

 

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EVEN WHERE EVIDENCE OF AN UNCHARGED CRIME IS “INEXTRICABLY INTERTWINED” WITH THE NARRATIVE OF CHARGED CRIME, IT MAY BE INADMISSIBLE BECAUSE ITS PREJUDICIAL EFFECT OUTWEIGHS ITS PROBATIVE VALUE; HERE THE COMPLAINANT’S TESTIMONY ABOUT A PRIOR UNCHARGED SEX ACT SHOULD NOT HAVE BEEN ADMITTED (FIRST DEPT).

The Frist Department, reversing the conviction in this sexual abuse prosecution, determined the evidence of a prior sex act with the complainant was much more prejudicial than probative. The evidence was therefore inadmissible:

Prior to the commencement of jury selection for the second trial, the People made a Molineux application to allow the complainant to testify about an alleged prior oral sexual encounter with defendant. The People argued, inter alia, that this evidence was “inextricably intertwined” with the complainant’s testimony as to the charges of sexual abuse, provided relevant background, and put the complainant’s testimony “into a believable context.” Supreme Court granted the People’s motion. The court concluded that the proposed testimony was “inextricably woven [in]to the narrative.” …

Supreme Court erred in granting the People’s Molineux application. Even if the People established some non-propensity basis for introducing this evidence, “the prejudicial nature of that evidence far outweighed any probative value” … . People v Nieves, 2026 NY Slip Op 00979, First Dept 2-19-26

Practice Point: Here in this sexual abuse prosecution, the complainant’s testimony about a prior, uncharged sex act was deemed much more prejudicial than probative. Therefore the testimony was inadmissible, despite the argument that it was “inextricably intertwined” with the narrative of the crime or provided relevant background.

 

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DEFENSE COUNSEL LEFT A PROFFER SESSION MIDWAY THROUGH THE PROCEEDINGS; DURING THE PROFFER SESSION DEFENDANT MADE AN INCRIMINATORY STATEMENT WHICH WAS USED TO IMPEACH HIS CREDIBILITY AT TRIAL; DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE-ASSISTANCE GROUNDS SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction based upon ineffective assistance of counsel should have been granted. Defense counsel left a proffer session midway through the proceedings:

Supreme Court erred in finding that defendant failed to satisfy his burden of establishing that he received ineffective assistance of counsel when his counsel absented himself from a proffer session midway through the session. Absent an express waiver from defendant, counsel had an obligation to be present during the session and to “be alert to, and to avert if he could, the possibility that defendant’s cooperation would hurt rather than help him” … . Under the circumstances, where counsel advanced no sound strategic reason behind his decision to leave the proffer session, his absence deprived defendant of meaningful representation at a critical stage in the proceeding … . Defendant was prejudiced by counsel’s absence, because a statement defendant made during the proffer session implicating himself in the burglaries for which he was ultimately tried and convicted for, was successfully used by the prosecution to impeach defendant’s credibility at the trial … . People v Anonymous, 2026 NY Slip Op 00980, First Dept 2-19-26

Practice Point: A proffer session is a critical stage of a criminal proceedings at which a defendant may incriminate himself. Here defense counsel’s leaving a proffer session midway constituted ineffective assistance warranting vacation of the conviction.

 

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THE COURT OF APPEALS CANNOT REVIEW AN APPELLATE DIVISION’S WEIGHT-OF-THE-EVIDENCE RULING ABSENT THE APPELLATE DIVISION’S MANIFEST FAILURE TO CONSIDER THE ISSUE OR THE APPLICATION OF AN INCORRECT LEGAL STANDARD; NOT THE CASE HERE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, affirming the Appellate Division, determined the record did not support the appellant’s argument that the Appellate Division failed to consider the weight-of-the-evidence or did so using an incorrect legal principle. Therefore the Court of Appeals could not review the weight of the evidence:

On appeal, the Appellate Division unanimously affirmed the judgment (220 AD3d 1223 [4th Dept 2023]). The Court held that the verdict was not against the weight of the evidence, stating that, “[a]lthough a different verdict would not have been unreasonable,” the jury did not “fail[ ] to give the evidence the weight it should be accorded” … . …

In Baque, we recently clarified the Appellate Division’s role in reviewing the weight of the evidence in a case involving purely circumstantial evidence. In a circumstantial evidence case, the jury must conclude that ” ‘the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence’ ” (Baque, 43 NY3d at 29 …). Observing that the Appellate Division’s function in conducting a weight review was to “independently assess all of the proof,” we explained that the Appellate Division, like the jury, must conclude that the evidence gives rise to such an inference … . We further reiterated in Baque that this Court has no power to review the Appellate Division’s decision regarding the weight of the evidence unless that Court ” ‘manifestly failed to consider the issue or did so using an incorrect legal principle’ ” … . * * *

Here, the Appellate Division expressly rejected defendant’s weight of the evidence challenge and did so by citing Bleakley and People v Danielson (9 NY3d 342, 349 [2007])—citations that we noted in Baque indicated that the Appellate Division applied the correct legal standard … .

… [W]e assume that the Appellate Division appropriately conducts its weight of the evidence review in a circumstantial evidence case, unless its decision manifestly demonstrates otherwise … . …

… [T]he Appellate Division cited …cases … indicating that the Appellate Division deferred to the jury’s credibility determinations and that it did not view this as an appropriate case in which to substitute its own credibility determinations for that of the jury … . …

In sum, Baque did not alter the longstanding principle that this Court “cannot review a weight of the evidence challenge unless the intermediate appellate court manifestly failed to consider the issue or did so using an incorrect legal principle” … . People v Anderson, 2026 NY Slip Op 00967, CtApp 2-19-26

Practice Point: Consult this opinion for the criteria for a Court-of-Appeals review of an Appellate Division’s weight-of-the-evidence ruling.

 

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PLAINTIFF ALLEGED DEFENDANT NEGLIGENTLY PERFORMED A ROBOTIC ASSISTED LAPAROSCOPIC ADRENALECTOMY; PLAINTIFF’S EXPERT, A GENERAL SURGEON WHO WAS EXPERIENCED IN LAPAROSCOPIC SURGERY, BUT NOT ROBOTIC SURGERY, SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING; THE LACK OF EXPERIENCE WITH ROBOTIC SURGERY WENT TO THE WEIGHT OF THE TESTIMONY, NOT ITS ADMISSIBILITY (SECOND DEPT).

The Second Department, reversing Supreme Court’s dismissal of the medical malpractice complaint, determined the testimony of the plaintiff’s expert, a general surgeon, should not have been precluded on the ground he was not qualified to testify about robotic surgery. The complaint alleged the defendant negligently performed a robotic assisted laparoscopic adrenalectomy:

“A medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field, but the witness should be possessed of the requisite skill, training, education, knowledge, or experience from which it can be assumed that the opinion rendered is reliable” … . Here, the plaintiff’s expert, a board certified general surgeon, testified that he had knowledge of adrenalectomies and the splenic vein based on his education and training, had performed surgeries involving the adrenal gland, and had extensive experience performing laparoscopic surgeries, and he opined that the principles of good surgical practice with respect to the isolation, preservation, and protection of adjacent organs were the same regardless of whether a surgery was performed openly, laparoscopically, or robotically. This testimony was sufficient to demonstrate that the plaintiff’s expert was qualified to render an opinion regarding the standard of care for a robotic assisted laparoscopic adrenalectomy … . The expert’s lack of experience in performing robotic assisted laparoscopic adrenalectomies goes to the weight of his testimony, not its admissibility … . Lynch v Wang, 2026 NY Slip Op 00887, Second Dept 2-28-26

Practice Point: A medical expert need not be a specialist in a particular field to testify about accepted practices in that field. Here the plaintiff alleged defendant negligently performed robotic surgery. Plaintiff’s expert, a general surgeon who was not experienced in robotic surgery, should not have been precluded from testifying.

 

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THE JUDGE’S QUESTIONING OF WITNESSES, GUIDANCE OF THE PROSECUTION, AND OBVIOUS BIAS IN FAVOR OF THE PROSECUTION DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the evidence supported the convictions but the judge’s questioning of witnesses and obvious bias in favor of the prosecution deprived defendant of a fair trial. The issue was not preserved for appeal but the Second Department considered it in the interest of justice:

“‘[A] trial judge is permitted to question witnesses to clarify testimony and to facilitate the progress of trial, and, if necessary, to develop factual information,’ so long as the judge does not take on the function or appearance of an advocate” … . Here, the Supreme Court engaged extensively in its own areas of inquiry, asked numerous leading questions of the People’s witnesses, including the complainant and a police officer, as to their observations of the defendant, elicited identification testimony, and guided the prosecution at length in its questioning.

Viewing the record as a whole, the Supreme Court improperly took on the function and appearance of an advocate. The court’s conduct left the impression that its opinion favored the credibility of the People’s witnesses and the merits of the People’s case … , thus depriving the defendant of a fair trial … . People v Morales, 2026 NY Slip Op 00913, Second Dept 2-18-26

Practice Point: A judge’s involvement in a prosecution which rises to the level of an advocate for the prosecution’s case deprives a defendant of a fair trial.

 

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