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THE EXPERT TESTIMONY OFFERED TO DEMONSTRATE A CAUSAL RELATIONSHIP BETWEEN LOW-BIRTH-WEIGHT AND AUTISM SHOULD HAVE BEEN PRECLUDED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the plaintiffs’ verdict in this medical malpractice action and ordering a new trial, determined the expert testimony offered to demonstrate low-birth-weight has a causal relationship with autism should have been precluded:

There was no testimony at the Frye hearing that any of the studies Rubenstein [plaintiffs’ expert] relied upon concluded that premature birth causes autism. Rather, Rubenstein’s testimony established that the exact mechanism of how autism develops is unknown and that studies found a causal inference or association between prematurity and autism, not a causal relationship. Further, there was no testimony elicited at the Frye hearing that demonstrated that the medical community, specifically pediatric neurologists, have accepted that prematurity causes autism or even that a child’s birth at 25 weeks versus 27 weeks increases that child’s risk of later being diagnosed with autism. In any event, the gap between the statistical analysis relied upon by Rubenstein regarding the prevalence of autism in preterm, low-birth-weight infants and his testimony that the pathophysiology and causes of autism are unknown was too great to allow him to opine as to his theory of causation in this action. Based upon the foregoing, the Supreme Court erred in denying that branch of the defendants’ motion which was to preclude Rubenstein’s testimony on this theory of causation. Terehoff v Frenkel, 2026 NY Slip Op 02688, Second Dept 4-29-26

Practice Point: Consult this decision for insight into when observational studies will not support an expert’s testimony about causation. Here the testimony purporting to link low-birth-weight to autism should have been precluded.

 

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PLAINTIFF DID NOT PROVE THE RPAPL 1304 NOTICE OF FORECLOSURE WAS PROPERTY MAILED TO DEFENDANT; THE MAILING WAS DONE BY A THIRD PARTY AND NO FIRST-HAND KNOWLEDGE OF THE THIRD-PARTY’S MAILING PROCEDURE WAS PRESENTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the plaintiff in this foreclosure action did not demonstrate the RPAPL 1304 notice of foreclosure was properly mailed to defendant. The mailing was done by a third-party and no first-hand evidence of that party’s mailing procedure was presented:

… [T]he affiant did not attest that she was familiar with the standard office mailing procedures of Covius Services, LLC, the third-party vendor that sent the RPAPL 1303 and 1304 notices on behalf of plaintiff. The affidavit therefore did not establish proof of a standard office mailing procedure designed to ensure that items were properly addressed and mailed … . The affidavit also did not address the nature of plaintiff’s relationship with Covius, nor did it address whether Covius’s records were incorporated into plaintiff’s own records or routinely relied upon in plaintiff’s business … . Thus, under the circumstances presented, the tracking numbers on the copies of the 90-day notices did not by themselves suffice to establish proper mailing under RPAPL 1304 … . Wells Fargo Bank, N.A. v Merino, 2026 NY Slip Op 02616, First Dept 4-28-26

Practice Point: If the mailing of the RPAPL 1304 notice of foreclosure is done by a third-party, first-hand knowledge of that party’s mailing procedure must be presented.​

 

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IN A MEDICAL MALPRACTICE TRIAL, THE “ERROR IN JUDGMENT” JURY INSTRUCTION IS ONLY APPROPRIATE WHERE A PHYSICIAN IS CONFRONTED WITH SEVERAL MEDICALLY ACCEPTABLE TREATMENTS AND CHOOSES ONE; HERE IT WAS ALLEGED DEFENDANT MISREAD AN X-RAY; GIVING THE “ERROR IN JUDGMENT” INSTRUCTION WAS REVERSIBLE ERROR (FOURTH DEPT). ​

The Fourth Department, ordering a new trial in this medical malpractice case, determined the judge should not have given the jury an “error in judgment” jury instruction. The complaint alleged defendant physician failed to notice an abnormality in a lung X-ray. The “error in judgment” instruction is only appropriate when a physician is confronted with several medically acceptable treatments and chooses one, not the case here:

“[A]n error [in] judgment charge is appropriate in a case where a doctor is confronted with several alternatives and, in determining appropriate treatment to be rendered, exercises [their] judgment by following one course of action in lieu of another” … . However, such a charge should be given “only in a narrow category of medical malpractice cases in which there is evidence that [the] defendant physician considered and chose among several medically acceptable treatment alternatives” … . An error in judgment charge is not warranted where, as here, there was no evidence introduced at trial that the defendant physician “made a choice between or among medically acceptable alternatives” … , and the “plaintiffs’ [sole] theory of [the] defendant’s alleged malpractice ar[ose] from [the] defendant’s alleged lack of due care in assessing [the] plaintiff’s condition,” inasmuch as “the [sole] issue before the jury was [then] whether [the] defendant’s failure to diagnose [the] plaintiff’s [condition] constituted a deviation from medically accepted standards of care” … . Inasmuch as the error in judgment charge here “create[d] a risk that [the] jury w[ould] find that, because [Sobieraj] exercised his . . . best judgment, there can be no liability despite a failure to adhere to generally accepted standards of care,” we conclude that the court’s error in giving the charge cannot be deemed harmless … , and plaintiffs are thus entitled to a new trial.  Burns v Sobieraj, 2026 NY Slip Op 02537, Fourth Dept 4-24-26

Practice Point: In a medical malpractice action, the “error in judgment” jury instruction is only appropriate where there evidence of more than one appropriate treatment and the physician chooses one. It was reversible error to give the instruction where it was alleged the defendant misread an X-ray.

 

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ALTHOUGH THE DEFENDANT COULD HAVE BEEN ARRESTED AT THE TIME OF THE SEARCH OF HIS PERSON, HE WAS NOT, IN FACT, UNDER ARREST; THEREFORE THE KEY FOB AND THE FIREARM FOUND IN DEFENDANT’S VEHICLE SHOULD HAVE BEEN SUPPRESSED; AN APPELLATE COURT CANNOT AFFIRM ON ANY ALTERNATIVE BASIS (FOURTH DEPT).

The Fourth Department, suppressing the firearm found in defendants vehicle, determined the search of defendant’s person, during the key fob for the vehicle was seized, was not a valid search incident to arrest. Although there may have existed probable cause to arrest defendant at the time of the search, the defendant had not yet, in fact, been arrested:

Even assuming, arguendo, that either the investigator or the searching officer could have arrested defendant prior to or contemporaneously with the search of his person, we note that “[a] search must be incident to an actual arrest, not just to probable cause that might have led to an arrest, but did not” … . A lawful search incident to arrest “requires proof that, at the time of the search, an arrest has already occurred or is about to occur” … . The search must be “substantially contemporaneous” to an actual arrest “so as to constitute one event” … . Under the circumstances of this case, we conclude that there was no actual arrest of defendant justifying the search, inasmuch as the only officer who was purported to have actually placed defendant under arrest prior to or contemporaneously with the search explicitly informed defendant that he was not under arrest at that time … . The court upheld the search as a lawful search incident to an arrest, and thus we are precluded from affirming on any alternative basis … . People v Moore, 2026 NY Slip Op 02508, Fourth Dept 4-24-26

Practice Point: If a search of defendant’s person is justified as a search incident to arrest, the defendant must, in fact, be arrested before the search.

Practice Point: Here the motion court upheld the search as a search incident to arrest; the appellate court cannot affirm on any alternative ground.

 

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HERE THE TRIAL TESTIMONY ABOUT THE IDENTIFICATION OF THE DEFENDANT’S VOICE WAS MUCH LESS DEFINITIVE AND UNEQUIVOCAL THAN THE TESTIMONY AT THE SUPPRESSION HEARING, RAISING A QUESTION WHETHER THERE WAS PROBABLE CAUSE FOR DEFENDANT’S ARREST; DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO REOPEN THE SUPPRESSION HEARING; MATTER REMITTED FOR A REOPENED HEARING (SECOND DEPT).

The Second Department, remitting the matter for a reopened suppression hearing, determined defense counsel was ineffective for failing to move to reopen the hearing based upon discrepancies between the testimony at the suppression hearing and at trial. The trial testimony was less definitive and unequivocal, raising a question about whether there was probable cause for defendant’s arrest:

The defendant contends that trial counsel was ineffective for failing to move to reopen the pretrial suppression hearing on the basis that an individual had testified, during the trial, that he had told the police that the voice of the alleged kidnapper, who the individual had heard speaking on the telephone, was “possibly” that of the defendant, and the individual also admitted to testifying before the grand jury that he identified the voice after being shown a photograph of the defendant. Whereas, the police testimony at the pretrial suppression hearing regarding the same individual’s identification of the defendant’s voice, which formed the basis for the defendant’s arrest, was more definitive and unequivocal, and did not involve the viewing of a photograph. We agree.

Courts have the discretion to reopen a suppression hearing based upon new facts, which could not have been discovered with reasonable diligence before the determination of the suppression motion, pertinent to the suppression issue … . These new facts need not establish a constitutional violation on their face, but must be facts that would either materially affect, or have affected, the earlier determination … . Here, where the reliability of a witness’s identification of the defendant’s voice as that of one of the perpetrators of the crime, which primarily formed the basis for the defendant’s arrest, was called into question in light of that witness’s trial testimony, an issue of fact was raised regarding whether there was probable cause for the defendant’s arrest … . Although motions to reopen suppression hearings are generally denied where the new facts proffered go only to the circumstances surrounding the defendant’s arrest, here, the defendant could not be presumed to know the basis of the communications or conduct between police, leading to his arrest … . The failure of trial counsel to move to reopen the suppression hearing on this ground was therefore both objectively unreasonable as well as prejudicial to the defendant … . Contrary to the People’s contention, this is not a case in which trial counsel’s error can be explained as part of any strategic design … . People v Clark, 2026 NY Slip Op 02414, Second Dept 4-22-26

Practice Point: Here trial testimony about the identification of defendant’s voice was not as definitive or unequivocal as the testimony at the suppression hearing raising a question whether there was probable cause for defendant’s arrest. Defense counsel was ineffective for failing to move to reopen the hearing. The matter was remitted for a reopened hearing.​

 

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DEFENDANT IN THIS FORECLOSURE TRANSFERRED THE SUBJECT PROPERTY TO A THIRD PARTY DURING THE PROCEEDINGS WHICH ORDINARILY WOULD DIVEST DEFENDANT OF STANDING; HOWEVER, PLAINTIFF DID NOT WAIVE A DEFICIENCY JUDGMENT AND THE TIME FOR SEEKING A DEFICIENCY JUDGMENT HAD NOT PASSED; BECAUSE DEFENDANT RETAINED AN INTEREST IN DEFENDING AGAINST A DEFICIENCY JUDGMENT, DEFENDANT HAD STANDING TO ARGUE THE RPAPL 1304 NOTICE WAS JURISDICTIONALLY DEFECTIVE; THE NOTICE ARGUMENT, HOWEVER, WAS REJECTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, determined defendant in this foreclosure action had standing to argue the RPAPL 1304 notice of foreclosure was jurisdictionally defective, despite defendant’s transfer of the subject real property during the foreclosure proceedings. Plaintiff had not waived a deficiency judgment and the time for seeking one had not elapsed. Therefore defendant still had an interest in defending the action, i.e., defendant had standing to contest the notice. The First Department rejected defendant’s notice argument:

It is well settled that a defendant lacks standing to defend the action where it transfers the mortgaged property to a third party during the foreclosure action and the plaintiff waives its right to a deficiency judgment * * *.

… [I]n this case, plaintiff chose not to waive a deficiency judgment and its time to move for a deficiency judgment has not yet expired. Because [defendant] is subject to a potential deficiency judgment and is a debtor on the underlying mortgage, he has an interest in defending the action notwithstanding that he transferred the mortgaged property … and as a result, no longer has the right to redeem the property. Nationstar Mtge. LLC v Vassi, 2026 NY Slip Op 02375, First Dept 4-21-26

Practice Point: If the time for seeking a deficiency judgment in a foreclosure has not passed, a defendant who transferred the subject property to a third party during the foreclosure proceedings still has standing, i.e., defendant has an interest in defending against a deficiency judgment. However, if the plaintiff had waived a deficiency judgment defendant would have lost standing.

 

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A POLICE OFFICER INTERVIEWED AN EYEWITNESS AND CREATED A “PROBABLE CAUSE I-CARD” FOR THE ARREST OF THE DEFENDANT; THE ARRESTING OFFICER DID NOT TESTIFY AT THE SUPPRESSION HEARING; THEREFORE THE PEOPLE DID NOT PROVE THE ARRESTING OFFICER SAW AND RELIED ON THE I-CARD, WHICH THE “FELLOW OFFICER” RULE REQUIRES FOR A LAWFUL ARREST; DEFENDANT’S STATEMENT SHOULD HAVE BEEN SUPPRESSED (CT APP). ​

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Halligan, determined the motion to suppress defendant’s statement should have been granted because the People failed to prove the arrest was based upon the “fellow officer” rule, An officer who interviewed a witness created a probable-cause I-card which was posted to inform other police officers of the probable cause for defendant’s arrest. But the People did not prove the arresting officer relied on the I-card as the basis of the arrest:

Whether the People presented sufficient evidence of a communication under the fellow officer rule is a fact-specific question that requires examination of the record before the suppression court. Here, the People presented no direct evidence that prior to arresting the defendant, the arresting officers were aware of the I-card and relied upon it in effectuating the defendant’s arrest. The arresting officers did not testify at the suppression hearing, nor did the detective testify about the circumstances of the arrest. * * *

We conclude that the People failed to provide evidence sufficient to show a communication between the officers based on the I-card, and therefore failed to meet their burden at the suppression hearing to establish probable cause for the defendant’s arrest. Absent the requisite showing of probable cause, the defendant’s statement must be suppressed as the fruit of an unlawful arrest. People v Palacios, 2026 NY Slip Op 02360, CtApp 4-16-26

Practice Point: Here the required proof for the application of the “fellow officer” rule was not presented by the People. To prove the arrest was based on a “probable cause I-card” the People were required to show the arresting officer saw the I-card and relied on it. The arresting officer did not testify, so there was a failure of proof requiring suppression of the defendant’s statement.

 

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THE RENTAL-CAR DEFENDANT IN THIS REAR-END COLLISION CASE DID NOT DEMONSTRATE THE RENTAL CAR WAS NOT NEGLIGENTLY MAINTAINED; THEREFORE, PURSUANT TO THE “GRAVES AMENDMENT,” THE RENTAL CAR DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT DISMISSING THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court in this traffic accident case, determined the evidence submitted by the rental car company (A-1 Cars) did not eliminate a question of fact whether the car was negligently maintained. Plaintiff driver was rear-ended by the rental car:

“Under the Graves Amendment (49 USC § 30106), the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if the owner (i) is engaged in the trade or business of renting or leasing motor vehicles, and (ii) engaged in no negligence or criminal wrongdoing” … . Thus, under the circumstances of this case, in order to establish entitlement to judgment as a matter of law dismissing the complaint under the Graves Amendment, A-1 Cars was required to show, prima facie, (1) that it owned the subject vehicle, (2) that it engaged in the trade or business of leasing or renting motor vehicles, (3) that the accident occurred during the period of the lease or rental, and (4) that there is no triable issue of fact as to any allegation of negligent maintenance contributing to the accident … .

Here, the only evidence submitted by A-1 Cars aside from an uncertified police accident report, which was inadmissible … , was an affidavit from its “Claims Administrator,” Mariley Mendez. The conclusory, unsupported affidavit was insufficient to demonstrate, prima facie, A-1 Cars’s entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it on the basis of the Graves Amendment. Among other things, Mendez’s averments that she “check[ed]” the vehicle prior to the rental and that there were no records of mechanical problems with the vehicle were insufficient to establish, prima facie, that the vehicle was properly maintained and in good repair at the time of the subject accident … . Joseph v Marmolejos, 2026 NY Slip Op 02256, Second Dept 4-15-26

Practice Point: Consult this decision for insight into what a rental-car company must prove with respect to maintenance of the rental car to take advantage of immunity from liability pursuant to the Graves Amendment.​

 

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IN A “SMOOTH, SLIPPERY, SHINY FLOOR” SLIP AND FALL CASE, THE FACT THAT THE FLOOR WAS WAXED DOES NOT DEMONSTRATE NEGLIGENCE; THERE MUST BE EVIDENCE THE WAX WAS NEGLIGENTLY APPLIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants were entitled to summary judgment in this “smooth, slippery, shiny floor” slip and fall case. The fact that a floor has been polished does not establish negligence. Plaintiff must show the wax or polish was negligently applied:

“A defendant may not be held liable for the application of wax, polish, or paint to a floor . . . unless the defendant had actual, constructive, or imputed knowledge that the product could render the floor dangerously slippery” … . “A prima facie case of the negligent application of wax may be established by evidence that a dangerous residue of wax was present on the floor” … . “In the absence of evidence of a negligent application of floor wax or polish, the mere fact that a smooth floor may be shiny or slippery does not support a cause of action to recover damages for negligence, nor does it give rise to an inference of negligence” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that there was no negligent application of wax to the floor … . Brener v Queens Blvd. Extended Care Facility Corp., 2026 NY Slip Op 02240, Second Dept 9-15-26 

Practice Point: A smooth, slippery, shiny floor is not actionable in a slip and fall case unless there is evidence wax was negligently applied.

 

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PLAINTIFF FATHER WAS AWARDED SOLE CUSTODY OF THE CHILD IN AN ORDER THAT DIRECTED MOTHER TO “STAY AWAY” FROM FATHER AND CHILD; FATHER ASKED THE POLICE FOR HELP IN SERVING THE ORDER AND PICKING UP THE CHLID; MOTHER WOULD NOT LET THE POLICE INTO HER HOME; DISTRICT ATTORNEYS ADVISED THAT THE POLICE COULD NOT ENTER MOTHER’S HOME; THE NEXT DAY MOTHER MURDERED THE CHILD; THE COMPLAINT AGAINST THE MUNICIPAL DEFENDANTS SHOULD NOT HAVE BEEN DIISMISSED; PLAINTIFF DEMONSTRATED A SPECIAL RELATIONSHIP WITH THE MUNICIPALITY AND THE MUNICIPALITY DID NOT DEMONSTRATE IT WAS ENTITLED TO GOVERNMENTAL FUNCTION IMMUNITY (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Taylor, determined the negligence and wrongful death action against the municipal defendants should not have been dismissed, and plaintiff’s motion for leave to amend the notice of claim or leave to file a late notice of claim should have been granted. Plaintiff father was granted sole custody of his child in an order which required mother to “stay away” from father and the child. Plaintiff asked the police for help in serving the order on mother and picking up the child. The police attempted to serve the order, but mother slammed the door and would not let them in. District attorneys were then contacted for advice but determined the police could not enter mother’s home. The next day the police were called to mother’s home where the child was found deceased. Mother was convicted of murdering the child. The Second Department held that there was a special relationship between plaintiff and the municipality and the municipality was not entitled to governmental function immunity: The opinion is too complex to fairly summarize here:

To establish the existence of a special relationship, a plaintiff is required to prove four elements, also referred to as “the Cuffy factors” or “the Cuffy test,” namely:

“(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” (Cuffy v City of New York, 69 NY2d 255, 260 …). * * *

Generally, the “decision to arrest an individual involves the exercise of discretion . . . and thus is cloaked with governmental immunity” … . However, here, in the face of what was, in effect, a temporary order of protection, the defendant police officers became, at a minimum, “obligated to respond and investigate” … . Therefore, the Village defendants have not conclusively established that their actions were purely discretionary … . Boyd v Village of Mamaroneck, 2026 NY Slip Op 02239, Second Dept 4-15-26

Practice Point: Consult this opinion for insight into what constitutes a “special relationship” between a plaintiff and a municipality and when a municipality is protected from liability in negligence by governmental function immunity.

 

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