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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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ISSUING A RULING BEFORE FATHER COMPLETED HIS TESTIMONY IN THIS CUSTODY PROCEEDING DEPRIVED THE PARTIES OF DUE PROCESS OF LAW (THIRD DEPT).

The Third Department, reversing Family Court, determined the judge’s issuing a ruling awarding custody to father before father’s direct testimony had been completed violated due process:

The parties, as well as the attorney for the child, share the view that Family Court improperly ended the hearing before its completion, and we agree. At a hearing on an initial custody determination, due process requires that each party be provided a full and fair opportunity to be heard … . The parties must be permitted to present evidence on their own behalf and ” ‘cross-examine . . . key witness[es]’ ” … . Aside from due process considerations, a court’s “abrupt termination of the proceedings [may] preclude[ ] a meaningful best interests analysis, leaving the court . . . with insufficient information upon which to reach a reasoned conclusion” … .

Recognizing that this custody proceeding largely turned upon the credibility of the mother and the father, each of whom alleged that the other was an unfit parent, Family Court deprived both parties of a full and fair opportunity to be heard by inexplicably cutting off the father’s direct testimony and failing to allow any cross-examination of him. Further, given that the court granted the father sole legal and primary physical custody of the child in the face of the mother’s allegations that the father had committed numerous acts of domestic violence, including in front of the child, the court’s failure to allow cross-examination of the father deprived it of sufficient information to perform a meaningful best interests analysis … . Accordingly, we reverse and remit for a new fact-finding hearing … . Matter of Casey Q. v Jeffrey O., 2025 NY Slip Op 01981, Third Dept 4-3-25

Practice Point: Here in this child custody dispute, the judge issued a ruling awarding custody to father before father had completed his direct testimony. The premature ruling deprived the parties of due process of law.

 

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UNDER THE NEW DISCOVERY ARTICLE, CRIMINAL PROCEDURE LAW ARTICLE 245, THE DEFENDANT WAS ENTITLED TO “AUTOMATIC” DISCLOSURE OF THE TESTIMONY (IN A PRIOR CASE) OF AN ARRESTING OFFICER WHICH HAD BEEN DEEMED INCREDIBLE; THE FAILURE TO TURN OVER THE EVIDENCE RENDERED THE STATEMENT OF READINESS ILLUSORY; INDICTMENT DISMISSED (SECOND DEPT).

The Second Department, affirming Supreme Court, in a full-fledged opinion by Justice Voutsinas, determined the Certificates of Compliance filed by the People were improper and the statement of readiness was  illusory because evidence which could be used to impeach the credibility of one of the arresting officers (Lt. Ruiz) was not turned over. The indictment was dismissed on speedy-trial grounds. The opinion is comprehensive and cannot be fairly summarized here:

This appeal concerns the new disclosure obligations in criminal cases, enacted by the New York State Legislature, effective January 1, 2020, as part of sweeping criminal justice reform legislation under the new CPL article 245 … . The new legislation provides, inter alia, for “[a]utomatic” disclosure by the People to the defendant of “all items and information that relate to the subject matter of the case” that are in the People’s possession or control (CPL 245.20[1]). Specifically, this appeal concerns CPL 245.20(1)(k)(iv), which requires that the People disclose “[a]ll evidence and information” that “tends to . . . impeach the credibility of a testifying prosecution witness.” We hold that, under the circumstances of this case, the People were required to disclose, pursuant to CPL 245.20(1)(k)(iv), underlying records from a prior case where one of the prosecution witnesses was found to be incredible, and that the Supreme Court properly determined, based upon the record before it, that the People’s certificates of compliance were improper, properly struck a statement of readiness as illusory, and properly granted the defendants’ motions, inter alia, pursuant to CPL 30.30 to dismiss the indictment on the ground that they were deprived of their statutory right to a speedy trial. * * *

This Court holds that the underlying records in the case in which Lt. Ruiz’s testimony was found to be incredible did relate to the subject matter of this case for impeachment purposes … . Here, the underlying records pertaining to Lt. Ruiz’s incredible testimony, including the transcript of his testimony, did relate to the subject matter of the case because the material went toward the weight of the credibility of the witness and could be used for impeachment purposes. Therefore, the People were required to provide the records. People v Coley, 2025 NY Slip Op 01945, Second Dept 4-2-25

Practice Point: Consult this decision for a comprehensive discussion of the People’s obligation to provide “automatic” disclosure of evidence which can be used to impeach the credibility of an arresting officer.

 

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THE POLICE TESTIMONY AT THE SUPPRESSION HEARING WAS NOT WORTHY OF BELIEF; THEREFORE THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE POLICE CONDUCT; INDICTMENT DISMISSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction by guilty plea and dismissing the indictment, determined the police did not demonstrate the legality of the street stop which culminated in the pursuit of the defendant and the seizure of the firearm in defendant’s possession. The testimony of the arresting officer, Tofalli, at the suppression hearing was deemed unworthy of belief. Therefore the People did not meet their initial burden at the hearing, i.e., proving the legality of the police conduct:

“‘In order to justify police pursuit, the officers must have reasonable suspicion that a crime has been, is being, or is about to be committed'” … . Reasonable suspicion exists where there is a “quantum of knowledge sufficient to induce an ordinarily prudent and cautious man [or woman] under the circumstances to believe criminal activity is at hand” … . “A suspect’s flight alone or in conjunction with equivocal circumstances that might suggest a police request for information is insufficient to justify pursuit,” and “[p]ursuit is only authorized when flight is combined with circumstances indicating that the suspect might be engaged in criminal activity” … .

Here, the People failed to establish the legality of the police conduct in the first instance, as Tofalli’s testimony was incredible as a matter of law and patently tailored to meet constitutional objections … . Tofalli’s testimony that when the defendant pulled up his pants he was able to see an “L-shape” outline in the defendant’s waistband while the initial target was standing two feet in front of the defendant directly between Tofalli and the defendant defies common sense and strains credulity. Moreover, Tofalli’s testimony was inconsistent with the notes he made in his memo book, arrest reports generated after the incident, and his testimony before the grand jury, none of which made any mention of the initial target … , and was further inconsistent with the recording obtained from Tofalli’s body-worn camera, which revealed that prior to his interaction with the initial target, the defendant was not touching his pants, and does not depict the defendant’s T-shirt tightening around an “L-shape” object. Accordingly, under the circumstances presented, we find Tofalli’s testimony unworthy of belief … . People v Black, 2025 NY Slip Op 01943, Second Dept 4-2-25

Practice Point: The flight of the subject of a street stop, without some other indication of criminal activity, does not justify pursuit.

Practice Point: If the police testimony at the suppression hearing is not worthy of belief, the People have failed to meet their burden to demonstrate the legality of the police conduct. Suppression must be granted.

 

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FAMILY COURT LOST SUBJECT MATTER JURISDICTION AFTER THE NEGLECT PETITION WAS DISMISSED; THEREFORE THE COURT SHOULD NOT HAVE CONTINUED THE CHILD’S PLACEMENT IN FOSTER CARE (FIRST DEPT).

The First Department, reversing Family Court, in a full-fledged opinion by Justice Gesmer, determined Family Court lost subject matter jurisdiction after the neglect petition against mother was dismissed. Therefore the child’s placement in foster should not have been continued by the court. The First Department also noted that mother’s mental-health records from the period after the filing and after the dismissal of the neglect petition were improperly admitted:

We … find that Family Court lacked subject matter jurisdiction to continue R.C.’s foster care placement for the reasons articulated in Matter of Jamie J. (Michelle E.C.) (30 NY3d 275 [2017]), in which the Court of Appeals held that “Family Court’s jurisdiction terminates upon dismissal of the original neglect or abuse petition” … .

The “court’s lack of subject matter jurisdiction is not waivable, but may be raised at any stage of the action, and the court may . . . on its own motion . . . at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action” … .

Here, once the neglect petition against the mother was dismissed, Family Court lacked subject matter jurisdiction to continue the child’s temporary removal from the mother’s care and placement in foster care … . Accordingly, it should have immediately returned the child to the mother’s care and terminated the child’s foster care placement. It erred when it determined that it could hold permanency hearings based on the pending neglect petition against the putative father, since the child was not removed from his care, but from the mother’s. … Indeed, there is no evidence in the record that the child ever resided with the putative father and no indication that he ever sought custody of the child.

Furthermore, we find that the failure of Family Court to immediately return the child to the care of the mother after the dismissal of the neglect petition against her—as well as the subsequent protracted proceedings, including the dispositional hearing, which lasted nearly a year and a half—violated her due process rights … . Matter of R.C. (D.C.–R.R.), 2025 NY Slip Op 01859, First Dept 3-27-25

Practice Point: Here Family Court lost subject matter jurisdiction after the neglect petition against mother was dismissed and did not have the authority to continue the child’s placement in foster care.

Practice Point: The protracted proceedings after the dismissal of the neglect petition, during which the child remained in foster care, violated mother’s right to due process.

 

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PROOF THAT THE WEAPON WAS LOADED WHEN IT WAS FOUND THE DAY AFTER DEFENDANT POSSESSED IT WAS NOT SUFFICIENT TO SUPPORT THE CRIMINAL-POSSESSION-OF-A-WEAPON-SECOND-DEGREE COUNT (SECOND DEPT).

The Second Department, reversing defendant’s conviction on a count charging criminal possession of a weapon second degree, determined the People did not prove the firearm was loaded at the time defendant possessed it:

… [W]e find that [the evidence] was legally insufficient to establish, beyond a reasonable doubt, the defendant’s guilt of criminal possession of a weapon in the second degree as charged under count 9 of the indictment, which pertained to the Intratec firearm. A person is guilty of criminal possession of a weapon in the second degree when, inter alia, with intent to use the same unlawfully against another, such person possesses a loaded firearm (see Penal Law § 265.03[1][b]). Here, the evidence presented by the People …. was legally sufficient to establish that the defendant possessed the Intratec firearm in Queens on July 8, 2007. However, the People did not present any evidence that the Intratec firearm was loaded at the time that it was in the defendant’s possession in Queens on July 8, 2007, as charged under count 9 of the indictment … . Rather, the People merely presented evidence that the Intratec firearm was loaded at the time that it was found by the police in a garage in Brooklyn approximately one day later on July 9, 2007. Under these circumstances, the evidence was legally insufficient to establish, beyond a reasonable doubt, the defendant’s guilt of criminal possession of a weapon in the second degree as charged under count 9 of the indictment … . People v Bostic, 2025 NY Slip Op 01816, Second Dept 3-26-25

Practice Point: Proof that a firearm was loaded on July 9 does not prove the firearm was loaded when defendant possessed it on July 8.​

 

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MOTHER, WHO WAS REPRESENTING HERSELF IN THIS TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING, WAS DENIED DUE PROCESS BY THE JUDGE’S (1) COMMENCING THE HEARING WITHOUT HER, (2) SUBSEQUENTLY EXCLUDING HER FROM THE COURTROOM, (3) DENYING HER REQUEST FOR DOCUMENTS WHICH WERE IN EVIDENCE, (4) AND DENYING HER REQUEST FOR AN ADJOURNMENT TO CONSULT WITH HER LEGAL ADVISOR (SECOND DEPT). ​

The Second Department, reversing Family Court, determined mother, who was representing herself, was deprived of her right to due process in this termination of parental rights proceeding by “a confluence of factors:”

“A parent has a due process right to be present during proceedings to terminate parental rights”. Nonetheless, “[a] parent’s right to be present for fact-finding and dispositional hearings in proceedings to terminate parental rights is not absolute” … . “The child whose guardianship and custody is at stake also has a fundamental right to a prompt and permanent adjudication” … . “Thus, when faced with the unavoidable absence of a parent, a court must balance the respective rights and interests of both the parent and the child in determining whether to proceed” … .

Here … the mother was deprived of her due process right to be present in the proceedings seeking to terminate her parental rights. First, the Family Court determined to commence the hearing in the mother’s absence, even though she was proceeding pro se and had made representations to the court through her legal advisor that she had been directed to quarantine by her medical provider and was requesting an adjournment … . Notably, the record does not indicate that the mother had a history of failing to appear, nor did the court apparently rely on that factor in deciding to commence the hearing in the mother’s absence … .

Furthermore, when the hearing continued one week later, the Family Court improvidently exercised its discretion in denying the mother’s requests, among other things, for a copy of her own court-ordered psychiatric evaluation, which, at that point, was in evidence, and for additional time to obtain a court transcript and to consult with her legal advisor. Perhaps most significantly, the court abused its discretion in excluding the mother from the courtroom for the remainder of the hearing, without the issuance of a warning and with knowledge of the mother’s diagnoses contained in the psychiatric evaluation … . Thus, on both dates of the hearing, the mother was left without an advocate … . Matter of Justina C. M. J. (Chantilly J.), 2025 NY Slip Op 01805, Second Dept 3-26-25

Practice Point: Here mother was denied the right to be present in the termination-of-parental-rights proceeding, was denied access to evidence and her request for an adjournment to consult with her legal advisor was denied. Cumulatively mother was denied her right to due process.

 

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