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THE DENIAL OF THE JURY’S REQUEST TO SEE MRI IMAGES ON THE GROUND VIEWING THEM WAS “BEYOND THE KEN” OF THE JURY WAS REVERSIBLE ERROR (SECOND DEPT).

The Second Department, reversing the denial of plaintiff’s motion to set aside the verdict, determined the judge should not have withheld from the jury MRI images on the ground they were “beyond the ken” of the jury:

… [T]he Supreme Court failed to respond meaningfully to the jury’s request to view all of the infant plaintiff’s MRI images during deliberations … . Although the MRI images were admitted into evidence at trial, the court denied the jury’s request to view the MRI images during deliberations on the ground that viewing them was “beyond the ken of a juror.” … [T]he error deprived the plaintiffs of “substantial justice” with respect to the jury’s finding that Halitsky’s departure was not a substantial factor in causing the infant plaintiff’s injury … . Accordingly, the court should have granted that branch of the plaintiffs’ motion which was pursuant to CPLR 4404(a) to set aside so much of the jury verdict as was in favor of Halitsky …. J.T.M. v Parrinello, 2026 NY Slip Op 03787, Second Dept 6-17-26

Practice Point: Here the judge should not have refused the jury’s request to view MRI images which were in evidence on the ground they were “beyond the ken” of the jury.

 

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PETTIONERS (LICENSED CANNABIS RETAILERS) DID NOT DEMONSTRATE THAT THE RESPONDENT AGENCY’S REGULATIONS CONCERNING INSPECTIONS, SEARCHES AND SEIZURES AT PETITIONERS’ PLACES OF BUSINESS ARE UNCONSTITUTIONAL; THE ALLEGATION THAT THE MANNER IN WHICH THE INSPECTIONS ARE CONDUCTED VIOLATES THE CONSTITUTION IS PREMATURE BECAUSE THE ALLEGATION HAS NOT YET BEEN SUBJECTED TO ADMINISTRATIVE REVIEW, I.E., THE “EXHAUSTION OF REMEDIES” REQUIREMENT HAS NOT BEEN MET (THIRD DEPT). ​

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Corcoran, determined the preliminary injunction prohibiting certain inspections of petitioners’ businesses, which are licensed for the retail sale of cannabis, should not have been granted. The respondent is an agency, the NYS Cannabis Control Board.

… [Re:] petitioners’ attempt to show the likelihood of a successful constitutional challenge, we find that Supreme Court abused its discretion in granting the preliminary injunction because petitioners failed to show that the statutory and regulatory scheme is invalid in all of its applications … . * * *  When viewed as a whole, we find that the statutory and regulatory framework provides “meaningful limitation[s]” on an inspector’s discretion and ensures that “the search is limited in scope to that necessary to meet the interest that legitimized the search in the first place” … . …

To the extent petitioners challenge the manner in which inspections were applied to their particular businesses, these “as-applied” claims are premature because they have not been subjected to administrative review. A facial challenge requires examination of the statute “on a cold page” and without reference to the particular conduct … , whereas an “as-applied” challenge “requires an analysis of the facts of a particular case” … . Matter of Super Smoke N Save LLC v New York State Cannabis Control Bd., 2026 NY Slip Op 03715, Third Dept 6-11-26

Practice Point: A court can review an agency’s regulations which are alleged to be unconstitutional “on a cold page,” but a court cannot review the manner in which the regulations are applied absent an agency determination (the “exhaustion of remedies” rule in administrative law).

 

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PETITIONER ALLEGED EMPLOYMENT DISCRIMINATION BASED LARGELY ON THE EMPLOYER’S REFUSAL TO ACCOMMODATE PETITIONER’S DISABILITIES BY ALLOWING HER TO WORK REMOTELY FROM HOME; THE EMPLOYER DID NOT PRESENT SUFFICIENT FACTUAL INFORMATION TO WARRANT SUMMARY JUDGMENT; CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined there were questions of fact precluding summary judgment on petitioner’s employment discrimination allegations which are based largely on the employer’s refusal to accommodate petitioner’s disabilities by allowing her to work remotely from home. The decision is too detailed to fairly summarize here. The decision lays out in detail what an employer must demonstrate to warrant summary judgment in this context:

“[T]he first step in providing a reasonable accommodation is to engage in a good faith interactive process that assesses the needs of the disabled individual and the reasonableness of the accommodation requested” … . “[T]he essential functions of the position need to be part of the interactive process the law requires, not a unilateral employer decision cloaked by business judgement” … . An employer generally cannot obtain summary judgment on a discrimination claim unless the record demonstrates that it engaged in a good faith interactive process … . * * *

To meet its prima facie burden on summary judgment, [the employer] sought to prove that petitioner could not perform those essential functions, even with an accommodation… .

Bereft of rudimentary discovery such as depositions of the parties, [the employer] failed to establish the essential functions of petitioner’s position. “To avoid unfounded reliance on uninformed assumptions, the identification of the essential functions of a job requires a fact-specific inquiry into both the employer’s description of a job and how the job is actually performed in practice” … . * * *

… [The employer] did not address which, if any, of petitioner’s duties must be performed in person. * * *

 … [The employer] failed to demonstrate that petitioner’s requested accommodation would constitute an undue hardship. Matter of Smelyansky v New York State Off. of Gen. Servs., 2026 NY Slip Op 03708, Third Dept 6-11-26

Practice Point: Consult this decision for insight into what an employer must demonstrate to warrant summary judgment on an employment-discrimination action alleging the employer’s failure to accommodate petitioner’s disability.

 

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DEFENDANT ALLEGED HIS ATTORNEY DELIBERATELY WITHHELD IMPEACHMENT EVIDENCE ABOUT AN EXPERT WITNESS WHEN HIS ATTORNEY PERSUADED HIM TO HIRE THE EXPERT; BECAUSE OF THE IMPORTANCE OF THE EXPERT’S TESTIMONY, A HEARING ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE-ASSISTANCE GROUNDS SHOULD HAVE BEEN HELD; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing County Court, determined County Court should have held a hearing on defendant’s motion to vacate the judgment of conviction on ineffective-assistance grounds. Defendant alleged his attorney, Mary Rain, deliberately withheld impeachment information about an expert witness, Baerthlein, when persuading defendant to hire the expert:

… [D]efendant’s claim is that Rain was ineffective because she deliberately withheld impeachment evidence about Baerthlein when she persuaded defendant to hire him as an expert and the sole defense witness; that same impeachment evidence was ultimately used to vitiate Rain’s chosen defense; and that defendant would not have retained Baerthlein if Rain had disclosed the evidence in the first place. Given the central importance of Baerthlein’s credibility — particularly “in a case such as this, where casting doubt on the prosecution’s medical proof is the crux of the defense” … — Rain’s alleged failures, if true, were not the product of a legitimate but ill-advised trial strategy … . People v Thornton, 2026 NY Slip Op 03699, Third Dept 6-11-26

Practice Point: Here the allegation defense counsel deliberately withheld impeachment evidence about an expert witness while persuading defendant to hire the expert raised a factual question which required a hearing re: defendant’s motion to vacate his conviction on ineffective-assistance grounds.

 

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THE BELATED TURNING OVER OF ROSARIO MATERIAL PREJUDICED THE DEFENSE; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the People’s belated turning over of Rosario material to the defense deprived defendant of a fair trial. The Rosario material consisted of notes taken by social workers describing the complainant’s therapy sessions. Defendant was prejudiced by the inability to adequately review the notes or to have an expert review them before the cross-examination of the complainant. The fact that the judge precluded the notes as a remedial measure was not helpful to the defendant:

… [D]efendant correctly contends that he is entitled to a new trial based on the People’s belated disclosure of certain notes between the complainant and social workers describing therapy sessions. The social workers were employed by the People, and their notes at all times had been in the People’s possession. The People must turn over to the defense any prior statements by a witness which relate to the subject matter of that witness’s testimony for use on cross-examination … . The material must be provided at a time when it can be useful to the defense … . When the late disclosure of Rosario material results in substantial prejudice to the defendant, a new trial is required … . Here, the defendant was substantially prejudiced by the late disclosure of these notes, as he was unable to sufficiently review the material or to retain an expert to do so. Moreover, the prejudice was not obviated by the remedial action taken by the Supreme Court, since the preclusion of the notes was not helpful to the defendant … . In light of the substantial prejudice to the defendant that resulted from the late disclosure of the Rosario material, a new trial is required … . People v Ibrahim, 2026 NY Slip Op 03687, Second Dept 6-10-26

Practice Point: The belated turning over of Rosario material deprived defendant of an adequate opportunity to review it before the cross-examination of the complainant warranting a new trial.

 

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PLAINTIFF IN THIS SLIP AND FALL CASE DID NOT CALL HER TREATING PHYSICIAN AS A WITNESS AND DID NOT DEMONSTRATE THE PHYSICIAN WAS UNAVAILABLE OR THAT HIS TESTIMONY WOULD BE CUMULATIVE; PLAINTIFF RELIED SOLELY ON THE TESTIMONY OF A PSYCHIATRIST WHO FIRST SAW PLAINTIFF SIX YEARS AFTER THE ACCIDENT; DEFENDANT’S REQUEST FOR A “MISSING WITNESS” JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; VERDICT SET ASIDE (FIRST DEPT).

The First Department, granting defendant’s motion to set aside the jury verdict and direct a new trial in this sidewalk slip and fall case, determined plaintiff’s failure to call her treating physician as a witness warranted the “missing witness” jury instruction. Plaintiff called only, Dr. Guy, a psychiatrist who saw plaintiff only a few times six years after the injury:

Plaintiff alleges that she was injured when she was walking on the sidewalk adjacent to defendant’s property when her foot became trapped in a hole, causing her to fall. At trial, plaintiff alleged that because of the accident, she suffered a cervical herniation that caused radiculopathy and required surgery. She further alleged that injuries to her knee and her lumbar spine would require future surgery.

The trial court should have given the jury a missing witness charge with regard to Dr. Jason Gallina, plaintiff’s treating physician and surgeon from the period beginning months after the accident until at least a year afterward. Dr. Gallina was the orthopedic surgeon who performed plaintiff’s cervical fusion surgery, and he was the doctor who allegedly recommended the lumbar surgery that plaintiff contended she would need in the future.

The law is well settled that a missing witness charge is warranted for the failure to call a treating physician as a witness at trial, unless the party opposing the inference shows that the witness is either unavailable or not under the party’s control, or that the witness’s testimony would be cumulative … . * * *

Although the burden was on plaintiff to show that Dr. Gallina was unavailable or not under her control, she made no such showing  … . … [T]he testimony from Dr. Gallina would not have been cumulative. Dr. Guy is a physiatrist, while Dr. Gallina is the orthopedic surgeon who performed plaintiff’s surgery. Encarnacion v St. Barnabas Hosp., 2026 NY Slip Op 03630, First Dept 6-9-26

Practice Point: The plaintiff in a personal injury action must call the treating physician as a witness or adequately explain the failure to do so. In the absence of an adequate explanation, the defendant is entitled to a “missing witness” jury instruction.​

 

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DEFENDANT’S STATEMENT THAT THERE WAS A WEAPON IN HIS BACKPACK WAS A RESPONSE TO A DIRECT QUESTION BY A POLICE OFFICER AND WAS THEREFORE NOT ADMISSIBLE AS “SPONTANEOUS;” THE STATEMENT AND THE WEAPON SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT). ​

The Third Department, reversing County Court, suppressed a statement made by the defendant and the handgun seized from defendant’s backpack based on defendant’s statement. Defendant’s statement that the backpack contained a weapon was not spontaneous. It was made in response to a direct question by a police officer who had possession of the backpack and could feel the weapon inside:

At the suppression hearing, the sergeant who conducted the subject search testified that, upon removing the fanny pack from defendant’s backpack, he perceived that the fanny pack was heavy and contained a hard object “shaped like a pistol.” At that point, defendant, being booked 8 to 10 feet away, offered, “I can tell you what’s in there.” The sergeant inquired, “Yeah? What’s in there?,” to which defendant replied, “It’s a pistol.” In view of defendant’s detention and arrest, the location of the search and the sergeant’s admitted knowledge that the fanny pack contained a heavy pistol-shaped object, his question asking defendant what was contained inside the fanny pack was reasonably likely to trigger an incriminating statement — i.e., that the fanny pack contained a gun. As such, County Court erred in determining that defendant’s statements were spontaneous, and they should have been suppressed … . * * *

At the hearing, the sergeant confirmed that defendant’s backpack had already been secured when defendant was detained, handcuffed and placed in the rear seat of the vehicle — although it remains unclear at precisely what point defendant’s detention ripened into an arrest. The sergeant also established that law enforcement retained control of the backpack at all times thereafter and that he carried it into the station separately as defendant was escorted by another officer and booked in a different area. Defendant’s backpack was thus not on his person or within his immediate control or “grabbable area” at the time the search was conducted so as to raise concerns over evidence destruction … .  * * * Although the circumstances presented may have, upon a different record, supported the validity of an inventory search conducted pursuant to standardized police procedures, the People neither relied upon nor developed such a theory at the suppression hearing, electing instead to defend the search solely as one incident to arrest, and any passing attempt to raise that theory now is not properly before us … . On this record, we cannot agree that the People carried their burden to overcome the presumption of unreasonableness that attaches to a warrantless search, and the physical evidence therefore should have also been suppressed … . People v Pittman, 2026 NY Slip Op 03478, Third Dept 6-4-26

Practice Point: Here the statement by defendant that there was a weapon in his backpack was made in direct response to a police officer’s question. The statement, therefore, was not admissible as “spontaneous.” The statement and the weapon seized in a search based on the statement should have been suppressed.​

 

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WITHOUT A PAT-DOWN FRISK, THE OFFICER WHO MADE THE TRAFFIC STOP DID NOT HAVE PROBABLE CAUSE TO BELIEVE DEFENDANT POSSESSED A WEAPON; THE OFFICER’S SEARCH OF DEFENDANT’S JACKET POCKETS WAS NOT, THEREFORE, JUSTIFIED BY PROBABLE CAUSE; BECAUSE THE OFFICER TESTIFIED HE DID NOT INTEND TO ARREST THE DEFENDANT AT THE TIME OF THE SEARCH, THE SEARCH WAS NOT A VALID SEARCH INCIDENT TO ARREST; SUPPRESSION OF THE SEIZED WEAPONS SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing County Court, vacating defendant’s plea and conviction, and granting the motion to suppress, determined the officer who made the traffic stop should not have searched defendant’s pockets without first doing a pat-down frisk for weapons. The search was not justified by probable cause to believe defendant possessed a weapon, and the search was not justified as a search incident to arrest. The officer testified he did not intend to arrest the defendant at the time of the search:

Although the trooper testified that he conducted the search to ensure that defendant was unarmed, the record contains no evidence that the trooper possessed a reasonable suspicion that defendant was armed or posed a threat to his safety. In any event, such a suspicion would have justified only a limited pat-down of the jacket’s exterior rather than an invasive search of its pockets. Moreover, although the trooper attempted to justify the search through testimony that he believed there was “something on the inside” of the left side of defendant’s jacket because it felt “heavier than normal,” he did not make this observation until after he had already exceeded the permissible scope of a lawful pat down by unzipping and opening defendant’s jacket. Accordingly, the search cannot be sustained as a protective pat down of defendant.

… [I]t is now well settled that, for a search to be authorized as incident to arrest, law enforcement must either actually effectuate the arrest or possess a contemporaneous intent to arrest at the time the search is conducted … .  Critically, the intent to arrest must relate to the offense purportedly justifying the search, even if the defendant is ultimately arrested for a different offense … . Absent such intent, a search cannot be retroactively legitimized based on a decision to arrest that is made only after the discovery of additional evidence during the search … . Here, the trooper’s hearing testimony unequivocally establishes that he had no intent to arrest defendant at the time he conducted the search, and that the decision to arrest was not made until after he discovered the weapon in the interior pocket of defendant’s jacket. People v Roberts, 2026 NY Slip Op 03476, Third Dept 6-4-26

Practice Point: Consult this decision for discussions of the criteria for (1) asking a driver to step out of the car after a traffic stop, (2) a protective pat-down search of the driver, (3) the search of the driver’s pockets based on probable cause, and (4) the search of driver’s pockets as a search incident to arrest.​

 

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THE PEOPLE DID NOT PROVE THE SEARCH OF DEFENDANT’S VEHICLE WAS A VALID INVENTORY SEARCH, CRITERIA EXPLAINED IN DETAIL; TWO HANDGUNS AND HEROIN FOUND IN HIDDEN COMPARTMENTS SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, reversing County Court, determined the search of defendant’s vehicle was not a valid inventory search. Two handguns and heroin found in hidden compartments were suppressed by the Third Department:

Although the failure to admit into evidence the relevant tow, impound or inventory search protocols is not automatically fatal, the People’s additional failure “to ask any substantive questions of the [state troopers] to establish that the policy was sufficiently standardized, that it was reasonable and that the [state troopers performing the search] followed it in this case” does become fatal … . Despite the fact that the testimony of the state troopers confirmed their general understanding of the purpose and legitimate objectives served by an inventory search, their testimony also demonstrated a lack of familiarity with any departmental protocol on how to conduct such a search or whether any protocol even existed — must less a procedure that limited their discretion … . Indeed, there was no testimony establishing the circumstances under which troopers could remove paneling or pry into compartments, such as under the steering wheel column or dashboard … . Nor was there any testimony regarding when a canine unit could be used to assist with an inventory search — and, even assuming such a protocol did exist, it would remain unclear how a canine unit could satisfy the legislative objectives required by law under the circumstances here, where defendant was in custody and the vehicle had already been towed to the State Police barracks … . While inventory search protocols either allowing or disallowing exploration into the compartment of a steering wheel column or the use of a canine unit could be “equally permissible,” having “no policy whatever” is what causes the subject search to not be “sufficiently regulated to satisfy the Fourth Amendment” … .

Moreover, the inventory form generated by the search included the loaded revolver that was found at the barracks — although the form indicated that the inventory search had been completed prior to the tow to the barracks. This fact, coupled with the realization that the items listed on the inventory form were almost entirely the hidden contraband — and not the bag on the back seat containing the Suboxone pills and loose bullet, or the other clothing and perishables testified to be in the vehicle — indicates the troopers’ search was not designed to produce a usable inventory to guard against claims of lost property or for officer safety, but to list evidence of a crime … . Accordingly, County Court should have granted defendant’s motion to suppress the evidence of heroin and the two handguns. People v Russ, 2026 NY Slip Op 03475, Third Dept 6-3-26

Practice Point: Consult this decision for an in-depth discussion of the criteria for a valid inventory search, not met here.

 

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DECEDENT’S DAUGHTER RAISED QUESTIONS OF FACT ABOUT DECEDENT’S WIFE’S FITNESS TO ADMINISTER THE ESTATE; SURROGATE’S COURT SHOULD HAVE HELD A HEARING TO DETERMINE THE FACTS (THIRD DEPT).

The Third Department, reversing Surrogate’s Court, determined the decedent’s daughter had raised questions of fact about whether decedent’s wife was fit to administer the estate. Surrogate’s Court should have held a hearing to determne the facts:

… [T]he wife, as the surviving spouse of the decedent, established prima facie entitlement to letters of administration pursuant to SCPA 1001. However, the daughter’s opposition papers raised triable issues of fact about the wife’s eligibility to serve as administrator. Her averments that the wife stole or destroyed a purported will of the decedent, neglected to pay the decedent’s bills, discarded estate property and engaged in misconduct in the administration of another estate, if credited, may constitute dishonesty or improvidence within the meaning of SCPA 707 (1). Finally, the considerable hostility between the parties, which led to an order of protection and other court proceedings, is undisputed. Viewing the evidence in the light most favorable to the daughter, and mindful that Surrogate’s Court is limited at this stage to identifying triable issues of fact, not resolving credibility or weighing the evidence, the daughter’s submissions were sufficient to create a factual dispute that required a hearing before determining the wife’s motion … . Accordingly, Surrogate’s Court erred in granting the wife’s motion for summary judgment granting her letters of administration and dismissing the daughter’s competing petition without first conducting a hearing to determine whether the wife is disqualified pursuant to SCPA 707. Matter of Kosier, 2026 NY Slip Op 03491, Third Dept 6-4-26

Practice Point: Consult this decision for a detailed explanation of the proper procedure when questions of fact about the honesty of a person seeking to be appointed administrator of an estate are raised.

 

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