You are here: / Evidence
,

THE ICY CONDITION WAS CREATED BY “POCKETS OF FREEZING RAIN” FROM MIDNIGHT TO 3:45 AM; THERE WAS NO “STORM;” THE “STORM-IN-PROGRESS” DOCTRINE SHOULD NOT HAVE BEEN APPLIED IN THIS SLIP AND FALL CASE (THIRD DEPT).

The Third Department, reversing the nonjury verdict in the Court of Claims in this parking-lot slip and fall cause, over a dissent, determined the defendant state had actual and constructive knowledge of the icy condition and the storm-in-progress doctrine did not apply:

​The evidence establishes that defendant had actual notice of the icy conditions caused by the pockets of freezing rain and called in an employee to take appropriate measures to correct the dangerous condition by implementing defendant’s usual precautions of sanding/salting all paved areas accessible to the sander trucks. Even assuming that the record was insufficient to establish actual notice, we are satisfied that defendant had constructive notice of the dangerous condition in the location of claimant’s slip and fall. Based on the expert’s testimony of icy conditions forming through 3:45 a.m., defendant should have been aware of the slippery conditions on untreated surfaces between approximately 12:00 a.m. and 2:00 a.m., the time when defendant’s employee was performing “multiple” salting and sanding passes on the facility’s roads for “safety,” approximately five to seven hours before claimant’s fall, which is a sufficient time to establish constructive notice … . * * *

… [T]he event in question amounted to “pockets of freezing rain” that fell from approximately midnight until 3:45 a.m. and caused a glaze of ice measuring .05 to 0.1 inches. Defendant begs the question when it immediately argues that it is entitled to a “reasonable period of time” from 3:45 a.m. to address the condition. The threshold question is the applicability of the doctrine in the first instance. While it may be true that there is no need to establish the existence of a major winter event in order to apply the doctrine, it is equally true that there must be some sort of ongoing hazardous weather condition, i.e., a “storm” that amounts to more than an “appreciable accumulation” … . The storm in progress doctrine is not to be applied whenever any type of inclement weather exists and, given the unrefuted testimony of claimant’s expert meteorologist, it has no place in this litigation. Powers v State of New York, 2026 NY Slip Op 01833, Third Dept 3-26-26

Practice Point: In order for the storm-in-progress doctrine to be applicable, there must have been a “storm.” Here “pockets of freezing rain” did not constitute a “storm.”

 

, ,

THE AFFIANT DID NOT SUBMIT THE BUSINESS RECORDS DEMONSTRATING THE NOTE WAS PHYSICALLY DELIVERED TO THE PLAINTIFF BEFORE THE FORECLOSURE ACTION WAS COMMENCED AND DID NOT DEMONSTRATE SHE HAD PERSONAL KNOWLEDGE THAT PLAINTIFF POSSESSED THE NOTE AT THE TIME THE ACTION WAS COMMENCED; THEREFORE PLAINTIFF DID NOT DEMONSTRATE STANDING TO FORECLOSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the documentary evidence submitted by plaintiff mortgage company to demonstrate it had standing to foreclose was insufficient:

“A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note” … . “The plaintiff meets this burden with proof of either a written assignment of the underlying note or the physical delivery of the note endorsed in blank or specially to it prior to the commencement of the foreclosure action” … .

Here, an affidavit of Teresa Swayze, an assistant vice president of the plaintiff’s servicing agent, submitted in support of the plaintiff’s motion for leave to renew, was insufficient to establish that the plaintiff possessed the note at the time this action was commenced. Swayze averred that the note was physically delivered to the plaintiff prior to the commencement of this action and attached to her affidavit a copy of the note with an allonge endorsed in blank. However, Swayze failed to submit the business record on which she relied for her assertion that the note was physically delivered to the plaintiff prior to the commencement of this action … . Moreover, Swayze’s affidavit did not demonstrate that she had personal knowledge of whether the plaintiff possessed the note at the time of the commencement of this action … . Federal Natl. Mtge. Assn. v Ayoola, 2026 NY Slip Op 01772, Second Dept 3-25-26

 

, ,

THE DAY CARE PROVIDER TESTIFIED HER BACK WAS TURNED WHEN INFANT PLAINTIFF FELL OFF THE SLIDE; THE DAY CARE CENTER’S MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENT-SUPERVISION CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the cay-care-center defendants’ motion for summary judgment on the negligent-supervision cause of action should not have been granted. The complaint alleged infant plaintiff fell off a slide:

Day care providers are under a duty to adequately supervise the children in their charge and may be held liable for foreseeable injuries proximately related to a lack of adequate supervision … . “In general, the duty of a day care/preschool provider is to supervise the children in its care with the same degree of care as a parent of ordinary prudence would exercise in comparable circumstances” … . Generally, whether supervision was adequate and whether inadequate supervision was the proximate cause of a child’s injury are questions of fact … .

Here, the defendants failed to demonstrate, prima facie, that they provided adequate supervision to the plaintiff or that a lack of adequate supervision was not a proximate cause of the plaintiff’s injuries … . The defendants submitted, among other things, an expert affidavit from a child supervision expert and a transcript of the deposition testimony of the care provider present at the time of the plaintiff’s injury. The care provider testified that she was trained to always keep the children in her sight while they are in the gym. Moreover, the defendants’ expert emphasized that a teacher’s position should allow the teacher to clearly see the entire play area and the children. However, despite the care provider’s admitted familiarity with these practices, she testified that she was occupied tying another child’s shoe with her back turned when the plaintiff was on the playset with her brother and that she did not see the plaintiff until the plaintiff was on the ground. The defendants thereby failed to eliminate all triable issues of fact as to negligent supervision … . D.O. v Economic Opportunity Council of Suffolk, Inc., 2026 NY Slip Op 01797, Second Dept 3-25-26

Practice Point: A day-care provider is obligated to keep the play area and the children in sight at all times. Here the day-care provider had turned her back when infant plaintiff fell off the slide. That raised a question of fact precluding summary judgment in favor of defendant on the negligent-supervision cause of action.

 

,

THE FACT THAT DEFENDANT WAS PARKED IN A HIGH CRIME AREA NEAR AN APARTMENT COMPLEX AND THE FILED “TRESPASS AFFIDAVIT” BY AN APARTMENT PROPERTY MANAGER, REQUESTING THAT ANYONE ON THE PROPERTY WHO WAS NOT A TENANT BE ARRESTED FOR TRESPASS, DID NOT PROVIDE THE POLICE WITH A “PARTICULARIZED” REASON FOR APPROACHING THE DEFENDANT TO REQUEST INFORMATION; THE COCAINE AND HANDGUN SEIZED UPON THE DEFENDANT’S ARREST SHOULD HAVE BEEN SUPPRESSED; THE INDICTMENT WAS DISMISSED (FOURTH DEPT).

The Fourth Department. suppressing evidence seized upon defendant’s arrest and dismissing the indictment. over a two-justice dissent, determined that the police did not have particularized information which justified approaching defendant’s car which was parked near an apartment complex. There was a “trespass affidavit” by an apartment property manager on file with the police department which requested that any person who was not a tenant be arrested for trespass. The police approached defendant, who, it turned out, was a tenant. But based on an officer’s observation of a bag containing a tan substance inside the car, the officers ordered defendant out the car, searched the defendant’s person and car, and seized cocaine and a handgun:

… [T]he officer’s testimony that the apartment complex was in a high-crime area did not justify approaching defendant. The trespass affidavit failed to afford the officers any more particularized reason for approaching defendant. Therein, although the property manager for the apartment complex stated generally that there “was reason to believe that persons are congregating on the . . . property . . . [who] do not reside at said property,” there was no allegation in the trespass affidavit that the property was, for example, “plagued by illegal drug trade” or gang violence … . Indeed, the property manager did not specify any prior or ongoing incidents of criminal activity on the premises, but instead expressed a general belief that persons might be “congregating on the property,” which is a multi-building residential apartment complex, “without [the property manager’s] permission.” The property manager nonetheless also acknowledged in the trespass affidavit that non-residents were often permissibly on the property, such as guests of tenants. Thus, defendant was not “parked at an establishment around which criminal activity was known to occur” … . Further, the officers observed defendant momentary idling in a vehicle in a publicly accessible parking lot on a summer evening outside a residential apartment complex … , not “in a private space restricted by signage and a lock” … . Thus, nothing in the officers’ observation of defendant’s conduct, even considered in light of the assertions in the trespass affidavit, “provided a particularized reason to request information” … . People v Robinson, 2026 NY Slip Op 01693, Fourth Dept 3-20-26

Practice Point: Here the police did not have a “particularized reason” for approaching defendant’s parked car near an apartment complex. The facts that (1) the defendant was parked in a high crime area and (2) an apartment-complex property manager had filed a “trespass affidavit” with the police was not enough to allow the police to approach the defendant to request information.

 

, , ,

A HOSPITAL HAS A DUTY TO RETAIN AN INTOXICATED PATIENT WHO HAS BEEN ADMITTED INVOLUNTARILY PURSUANT TO THE MENTAL HYGIENE LAW IF THE PATIENT IS INCAPACITATED TO A DEGREE THERE WAS A LIKELIHOOD OF HARM TO THE PATIENT OR OTHERS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined there was a question of fact whether defendant hospital breached its duty to retain the decedent for emergency treatment because decedent was incapacitated by alcohol to a degree there was a likelihood of harm to decedent or others:

A hospital does not owe an intoxicated patient, who went to the hospital voluntarily, a duty to prevent that patient from leaving the hospital against medical advice even when that patient has been admitted to the hospital for medical treatment … . By contrast, however, the decedent here was admitted involuntarily (see Mental Hygiene Law former § 22.09 [e]). Defendant therefore had a duty to retain decedent for emergency treatment if decedent was incapacitated by alcohol or substances to such a degree that there was a likelihood to result in harm to decedent or others, as those terms are defined under Mental Hygiene Law former § 22.09 … .

Assuming, arguendo, that defendant met its burden of demonstrating that it did not breach its duty to ensure that decedent was no longer incapacitated to the degree that there was a likelihood to result in harm to decedent or others, we conclude that plaintiff raised an issue of fact. Plaintiff’s expert opined that, under the circumstances and “especially in such proximity to the events that occurred in the hospital in the hours prior to discharge,” it was a breach of the standard of care to allow decedent to be discharged … . Guadagno v Erie County Med. Ctr. Corp., 2026 NY Slip Op 01698, Fourth Dept 3-20-26

Practice Point: A hospital has a duty to retain an intoxicated patient who has been admitted involuntarily if the patient is incapacitated to a degree there is a likelihood of harm to the patient or others. That duty is not triggered by an intoxicated patient who went to the hospital voluntarily.

 

,

MOTHER’S MENTAL ILLNESS AND HER REQUEST FOR RESPITE CARE BECAUSE SHE WAS OVERWHELMED DID NOT SUPPORT A NEGLECT FINDING; THERE WAS NO EVIDENCE OF AN IMMINENT RISK TO THE CHILDREN (FIRST DEPT).

The First Department, reversing Family Court, determined the evidence of mother’s mental illness did not support the finding that she neglected the children:

The court’s determination that the mother neglected the subject children was not supported by a preponderance of the evidence … . Neglect occurs when a child’s “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired” as the result of the parent’s failure to “exercise a minimum degree of care” (Family Ct Act § 1012 [f][i]). “While parental neglect may be based on mental illness, proof of a parent’s mental illness alone will not support a finding of neglect, unless it is shown that the parent’s condition resulted in imminent danger to the child” … .

Although the mother testified that she was diagnosed with anxiety and depression, the record does not support a finding of “a link or causal connection” between the mother’s diagnoses and any impairment or imminent danger of impairment to the children … . The sole evidence of actual impairment was a burn on one of the children, and the uncontroverted testimonial and documentary evidence establish that the injury was accidental and that the mother provided care … .

Further, petitioner failed to establish how the mother’s mental health diagnoses caused the children to be in imminent danger of being impaired. The mother openly acknowledged her mental health diagnoses and treatment … . The record demonstrates that the mother was at all relevant times under the care of a psychiatrist and was compliant with the psychiatrist’s prescribed medications. ….

The mother’s request for respite care was also not a proper basis for finding imminent risk. … [S]he was feeling overwhelmed with caring for her three children and was unwilling or unable to care for and supervise them any longer. The miscellaneous information section states that the mother said she did not want her children any longer and wanted ACS to take them … because she was feeling overwhelmed. … The mother explicitly testified that she was not afraid she would “do something” to hurt her children or herself. Matter of Ja.W., 2026 NY Slip Op 01623, First Dept 3-19-26

Practice Point: Here there no evidence that mother presented an imminent risk of impairment to her children. Mother’s acknowledged mental illness, for which she was receiving treatment, and her request for respite care because she was feeling overwhelmed did not amount to neglect.

 

,

THE ADMISSION OF EVIDENCE OF DEFENDANT’S PRIOR POSSESSION OF DRUGS TO PROVE CONSTRUCTIVE POSSESSION OF DRUGS FOUND IN A SHARED APARTMENT WAS REVERSIBLE ERROR; THE PRIOR POSSESSION CONVICTION STEMMED FROM DRUGS FOUND IN DEFENDANT’S VEHICLE, TWO YEARS BEFORE; THEREFORE THE PRIOR CRIME WAS NOT LOGICALLY CONNECTED TO ANY ISSUE IN THE CASE; THE EVIDENCE WAS ERRONEOUSLY ADMITTED SOLELY TO PROVE DEFENDANT’S PROPENSITY TO POSSESS DRUGS (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Troutman, over a three-judge dissent, determined the evidence of defendant’s prior possession of drugs found in his vehicle two years before was erroneously admitted to prove defendant’s constructive possession of drugs found in a shared apartment:

Generally, evidence of a defendant’s prior possession of drugs is inadmissible at trial to show their intent to sell drugs or knowing possession of drugs on another occasion … . This follows from our longstanding Molineux rule, which provides that “evidence of a defendant’s uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate the defendant’s propensity to commit the crime charged” … . When evidence of prior uncharged crimes or misconduct is logically connected to some specific material issue in the case—such as intent, motive, knowledge, common scheme or plan, or identity of the defendant—the evidence falls under an exception to the Molineux rule, and a court may admit the evidence if its probative value outweighs its potential for prejudice to the defendant … .

Here, because the People’s evidence of a prior incident involving defendant’s possession of drugs was not logically connected to any specific material issue in this drug possession case, apart from defendant’s propensity for possessing drugs, the trial court erred in admitting that evidence. Inasmuch as this error was not harmless, we reverse and remit for defendant to receive a new trial. * * *

The main issue at trial was whether defendant had constructive or knowing possession of the contraband distributed throughout three rooms in the apartment. We agree with the dissenting Justices below that defendant’s possession of cocaine in his car in 2017 was not relevant to that issue. The two incidents involved different locations, different circumstances, different theories of possession, and took place around two years apart. People v Henderson, 2026 NY Slip Op 01627, CtApp 3-19-26

Practice Point: Here defendant’s conviction for possession of drugs found in his vehicle was admitted to prove he had constructive possession of drugs found in a shared apartment two years later. Because the prior crime evidence was not connected to any issue in the case on trial other than defendant’s propensity to possess drugs, it was reversible error to admit it.

 

, , ,

TWO PEOPLE WERE SHOT IN A DRIVE-BY SHOOTING; DEFENDANT, IN THE PLEA ALLOCUTIONS, DID NOT ADMIT TO FIRING SEPARATELY AT EACH VICTIM; THEREFORE THE PEOPLE DID NOT MEET THEIR BURDEN TO SHOW THE COMMISSION OF TWO DISTINCT CRIMES; CONSECUTIVE SENTENCES COULD NOT BE IMPOSED (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Rivera, over a two-judge dissent, determined the prosecutor did not demonstrate that the two victims of this drive-by shooting were struck by different bullets fired separately at each, causing separate injuries to each. Therefore the judge could not impose consecutive sentences. The court noted that this issue need be preserved for appeal:​

… [T]he prosecutor should have been aware at the time of the plea, based on our unambiguous caselaw, that they had the burden of ensuring defendant allocuted to sufficient facts to establish that he separately shot at the two victims or that the victims were injured by separate bullets, in order for consecutive sentencing to be legally authorized. But because the prosecutor failed to satisfy their burden and place on the record the alleged “separate and distinct” acts underlying the two crimes … , the trial court had no legal authority to impose consecutive sentences in this case. People v Sabb, 2026 NY Slip Op 01590, CtApp 3-19-26

Practice Point: Here the defendant was never asked during the plea allocutions whether he fired two shots separately injuring the two victims. Therefore the People did not meet their burden to prove the commission of two separate crimes and consecutive sentences could not be imposed.

 

,

THE CIRCUMSTANCES SURROUNDING THE IDENTIFICATION OF DEFENDANT FROM A CELL PHONE PICTURE TAKEN BY A POLICE OFFICER AT THE POLICE STATION WERE UNDULY SUGGESTIVE; THERE WAS NO PROBABLE CAUSE FOR DEFENDANT’S ARREST AND THE EVIDENCE SEIZED SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT). ​

The First Department, reversing Supreme Court’s finding that there was probable cause to arrest the defendant and suppressing the seized evidence, determined that the circumstances surrounding the identification of the defendant by a robbery victim (the mother) from a cell-phone picture of defendant taken by a police officer were unduly suggestive:

Because, while being escorted to where the officers were holding defendant on a different floor, the mother expressed fear that defendant would “come after” her after he was released from prison, it was decided that instead of requiring her to confront defendant in person, the mother would be shown a picture of defendant that one of the officers took with a cell phone. She was not required to approach defendant after exiting the elevator; however, given the narrow and angular path of the hallway, the agitated defendant was clearly audible to her, and many of the several officers surrounding defendant, at least one of whom was visible in the photo, were immediately apparent to her. She was shown the photo and asked “Is that him?” to which she responded that it “looked like” him, but that he had changed his clothes. Defendant was not arrested at that time, but was arrested approximately 15 minutes later, after the mother was shown the photo several more times and asked whether it depicted the perpetrator. * * *

While the choice to proceed with identification via a showup, even a single-photo showup, is generally disfavored, it may be reasonable in view of its temporal and spatial proximity to the crime … . Nevertheless, showup identification evidence “must be scrutinized very carefully for unacceptable suggestiveness and unreliability” … . “When a defendant challenges the suggestiveness of an out-of-court viewing of defendant’s likeness, the central issue presented for judicial consideration is whether the pretrial display is conducted under circumstances bearing the earmarks of improper influence and unreliability, which create the risk of mistaken identification and thus infect the truth-seeking process . . . showing one photograph of a defendant — the procedure at issue in defendant’s case — carries the risk of undue suggestiveness” … . The procedure employed here carried that risk, and because the substances underlying defendant’s conviction were received as a direct result of it, they should have been suppressed. People v Perry, 2026 NY Slip Op 01617, First Dept 3-19-26

Practice Point: The robbery victim, while in the police station and within earshot of the agitated defendant, was shown a cell phone picture of the defendant taken by an officer at the police station. She said the picture “looked like” the defendant but he had changed his clothes. The identification procedure was deemed unduly suggestive.

 

, ,

THE ACT OF SIMPLE POSSESSSION OF A WEAPON WAS COMPLETE BEFORE THE WEAPON WAS USED TO SHOOT THE VICTIM DURING A ROBBERY; THEREFORE, DESPITE THE OVERLAP OF THE ELEMENTS OF SIMPLE POSSESSION OF A WEAPON AND THE ELEMENTS OF FELONY MURDER AND ROBBERY, CONSECUTIVE SENTENCES WERE PROPERLY IMPOSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, affirming the Appellate Division, determined the sentence for simple possession of a weapon was properly imposed to run consecutively to the concurrent sentences for felony murder and robbery:

Penal Law § 70.25 (2) governs consecutive sentencing, providing that “[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences . . . must run concurrently.” Otherwise, the decision to impose consecutive sentences is a matter of discretion; the statute provides that “when multiple sentences of imprisonment are imposed on a person at the same time . . . the sentence or sentences imposed by the court shall run either concurrently or consecutively . . . in such manner as the court directs at the time of sentence” … .

To determine whether consecutive sentences are permitted, a sentencing court must first examine the statutory elements of the crimes and determine whether those elements overlap “under either prong” of Penal Law § 70.25 (2) and, if they do, “the People may yet establish the legality of consecutive sentencing by showing that the ‘acts or omissions’ committed by defendant were separate and distinct acts” … . That is, where sufficient evidence of separate and distinct acts is presented by the People, “consecutive sentences are possible regardless of whether the statutory elements of the offenses overlap” … .

… [T]he convictions at issue here have overlapping material elements. * * * Whatever the overlap, however, we conclude that the People met their burden of establishing that the defendant’s acts here were separate and distinct and therefore the consecutive sentences imposed were legal.

The People demonstrated that defendant’s possession of the gun in violation of Penal Law § 265.03 (3) was an act distinct from the commission of the robbery. Defendant obtained the gun, at minimum, more than one hour before the robbery, carried it across approximately 15 city blocks, and placed it under a bed in a co-conspirator’s home for “a little while” before eventually retrieving the gun and walking over to the intended victim’s building. Evidence that defendant obtained the gun and then used it to commit the substantive crime provided a sufficient basis for the sentencing judge to impose consecutive sentences. … ” ‘[t]he evidence clearly established that defendant was carrying the weapon at the time he encountered and shot the victim,’ ” and therefore ” ‘the act of possession was complete before the shooting, and consecutive sentences were authorized by’ ” the statute … . People v Billups, 2026 NY Slip Op 01589, CtApp 3-19-26

Practice Point: Consult this opinion for insight into when a judge may impose consecutive sentences despite an overlap of the elements of the crimes.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy