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THE JURY’S CONCLUSION THAT THE BURGLARY VICTIM SUFFERED “PHYSICAL INJURY” WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE ONLY EVIDENCE WAS THE VICTIM’S TESTIMONY HE SUFFERED PAIN AT 6 ON A SCALE OF 1 TO 10 (SECOND DEPT).

The Second Department, vacating defendant’s burglary convictions, applying a weight-of-the-evidence analysis, determined the proof the victim suffered “physical injury,” an element of the offenses, was insufficient:

The evidence, properly weighed, does not prove beyond a reasonable doubt that the victim sustained a physical injury … . Although the victim testified that he suffered pain as high as 6 on a scale of 1 to 10, he also testified that he was “in a little pain. Wasn’t much pain, but [he] was in pain.” There were no photographs of the victim’s injury and the victim testified that he never requested medical attention. Therefore, under the circumstances of this case, the verdict finding the defendant guilty of burglary in the first degree under Penal Law § 140.30 and burglary in the second degree under Penal Law § 140.25(1)(b), based solely upon the victim’s subjective testimony, was against the weight of the credible evidence … . People v Carroll, 2026 NY Slip Op 01528, Second Dept 3-18-26

Practice Point: A burglary victim’s testimony that he suffered pain at 6 on a scale of 1 to 10 did not support the jury’s finding that the victim suffered “physical injury” under a weight-of-the-evidence analysis by the appellate court.​

 

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THE MEDICAL RECORDS PROVIDED DEFENDANT HOSPITAL WITH TIMELY NOTICE OF THE FACTS UNDERLYING THE MEDICAL MALPRACTICE CAUSE OF ACTION; THEREFORE PLAINTIFF’S APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s application for leave to file a late notice of claim in this medical malpractice action should have been granted. The medical records provided the defendant hospital with sufficient timely notice of the cause of action:

“Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury” … . “Where the alleged malpractice is apparent from an independent review of the medical records, those records constitute ‘actual knowledge of the facts constituting the claim'” … .

Here, in support of his motion, the plaintiff submitted, inter alia, medical records and an affidavit of a physician who reviewed the records and concluded that there had been a departure from accepted medical practice … . Inasmuch as the medical records, upon independent review, suggested injury attributable to medical malpractice, the medical records provided the defendant with actual knowledge of the essential facts constituting the claim … . Kazeem v New York City Health & Hosps. Corp. (Queens Hosp. Center), 2026 NY Slip Op 01497, Second Dept 3-18-26

Practice Point: The medical records themselves can be deemed to have provided a defendant hospital with timely notice of the facts underlying a medical malpractice action such that an application for leave to file a late notice of claim should be granted.

 

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DEFENDANT FAILED TO DEMONSTRATE PLAINTIFF RECEIVED AND REVIEWED THE “TERMS AND CONDITIONS” ADDENDUM TO THE CONTRACT WHICH INCLUDED THE ARBITRATION CLAUSE; DEFENDANT’S EFFORT TO COMPEL ARBITRATION DENIED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, determined the defendant energy company did not demonstrate plaintiff agreed to an arbitration clause which defendant claimed was included in a four-page “Terms and Conditions” addendum to the contract. Essentially plaintiffs argued they were never provided with the four-page “Terms and Conditions.” Defendant relied on weak and contradictory evidence to the contrary, some of which was provided for the first time in a reply document (generally not considered by a motion court):

As a procedural matter, defendant could not employ its reply to remedy a basic deficiency in its prima facie showing … . After all, defendant’s theory of actual notice rested on its sales representative’s adherence to a business practice and defendant was unable to establish, in its underlying submission, the actual relevant practice (if any) that [the sales representative] used.

As a substantive matter, the inconsistent factual presentation between defendant’s underlying submission and its reply submission leaves a void on the critical question of what documents were reviewed with [plaintiff], undermining defendant’s contention that a particular business practice was employed and followed such that [plaintiff] received actual notice of the arbitration provision. Knight v Family Energy Inc., 2026 NY Slip Op 01599, First Dept 3-17-26

 

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THE STREET STOP OF DEFENDANT WAS INVALID UNDER BOTH THE US SUPREME COURT’S “HILL VS CALIFORNIA” “MISTAKEN ARREST” CRITERIA AND THE NYS “DEBOUR” STREET STOP CRITERIA; THE WEAPON DISCARDED BY DEFENDANT AS HE FLED SHOULD HAVE BEEN SUPPRESSED (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Halligan, over a three-judge dissent, determined the parole investigators did not have “reasonable suspicion” that the defendant was in fact the parole absconder for whom they had a warrant when they pulled along side the defendant on the street in an unmarked car. The parole investigators wore civilian clothes. The defendant, who was not the parole absconder, ran and threw away a firearm. He ultimately pled guilty to attempted criminal possession of a firearm. The defendant was wearing a ski mask so the investigators could not see his face when they pulled along side of him:

Supreme Court denied suppression, applying a rule for mistaken arrests derived from the U.S. Supreme Court’s decision in Hill v California (401 US 797 [1971]). The court credited the testimony of the investigator and his partner and held that the defendant’s physical similarities with the absconder, coupled with his “immediate” flight upon being approached, supported the officers’ reasonable belief that the defendant was the target of their warrant. * * *

The defendant and the People disagree about whether we should evaluate the investigators’ pursuit and arrest under De Bour or Hill. * * *

We need not decide which of the tests should control, because in this scenario we do not perceive a meaningful difference between Hill’s requirement of a reasonable mistaken belief and De Bour’s level three standard of reasonable suspicion. … Under Hill, the arresting officer must provide “reasonable, articulable grounds to believe that the suspect is the intended arrestee” … . By the same token, our De Bour caselaw specifies that reasonable suspicion requires an officer to point to “specific and articulable facts which, along with any logical deductions, reasonably prompted th[e] intrusion” … . Thus, when it comes to evaluating this particular scenario, the tests essentially ask the same question: whether the totality of the circumstances, including the defendant’s appearance and any additional observations about their behavior, justifies the resulting police-citizen encounter.  * * *

Nothing in the record here demonstrates that the defendant could have known that he was fleeing from law enforcement. People v Jones, 2026 NY Slip Op 01447, CtApp 3-17-26

Practice Point: Here the US Supreme Court’s “mistaken arrest” criteria for a valid street stop and the NYS “Debour” criteria for a valid street stop required the same level of “reasonable suspicion.”

 

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THE EVIDENCE OF DEPRAVED INDIFFERENCE TO HUMAN LIFE WAS SUFFICIENT AND EVIDENCE OF DEFENDANT’S BIPOLAR DISORDER WAS PROPERLY PRECLUDED BECAUSE TIMELY NOTICE OF THE DEFENSE WAS NOT PROVIDED TO THE PEOPLE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, affirmed defendant’s conviction of reckless endangerment first degree for a series of deliberate collisions with vehicles which culminated in his deliberately crashing into an occupied house. The evidence of depraved indifference to human life was deemed sufficient and evidence of defendant’s bipolar disorder was deemed properly precluded because timely notice of the defense was not provided:

The People introduced testimony from multiple witnesses who observed defendant driving erratically, “weaving” between lanes in heavy traffic, eyes open, and with a “look of rage on his face.” Over approximately three-tenths of a mile, defendant struck three vehicles, drove through a parking lot, and ultimately crashed into a house. Defendant began this course of conduct by making a “sharp right” directly into a tow truck, causing defendant’s vehicle to “lock[]” onto a car being towed and to “hang[]” from the wheel lift of the truck. After defendant’s vehicle “shook loose” from the tow truck, defendant “sped up” and “proceeded to take off” and a short time later he crashed into the rear of a van with such force that the driver hit his head on the roof. The driver felt defendant’s vehicle “pushing” him down the road. Other witnesses provided a similar description of defendant, with his hands on the steering wheel, appearing to intentionally hit the van “again and again and again,” “pushing” it forward. Defendant next crashed into the back of a third vehicle, then side-swiped the driver’s side, causing the vehicle to “hit the curb” and to “flip[] over on its roof.” A fire hydrant pierced the roof of the car one foot from the driver’s head. Defendant “took off [] fast” from this crash, drove over a sidewalk, through a motel parking lot, and crashed directly into a house, causing it to shake upon impact. Two people were inside the house at the time and heard “screeching tires” as the car approached. Crash data from the vehicle’s air bag control module showed that the brakes were not applied in the eight seconds prior to impact with the house. From this course of conduct, and the multiple witnesses who testified about defendant’s actions and demeanor, a rational jury could have concluded that defendant was aware of the risks involved in his behavior and acted without regard for whether the drivers of those vehicles, any pedestrians who might have been in the parking lot, or the people inside the house, lived or died and that, in sum, defendant displayed depraved indifference to human life. People v Bender, 2026 NY Slip Op 01444, CtApp 3-17-26

Practice Point: Consult this opinion for insight into the evidence required to support a jury’s conclusion that defendant acted with depraved indifference to human life.

Practice Point: A defendant’s failure to give timely notice of a psychiatric defense may result in preclusion of the psychiatric evidence. Here evidence of defendant’s bipolar condition was precluded because the CPL 250.10 notice was untimely.

 

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HERE THE RESITITUTION FOR THE VICTIM’S OUT-OF-POCKET MEDICAL EXPENSES WAS VACATED BECAUSE THE JUDGE DID NOT MAKE A RECORD SUPPORTING THE AMOUNT AWARDED (THIRD DEPT).

The Third Department, vacating the restitution for the victim’s out-of-pocket medical expenses, determined the judge failed to make a record of those expenses as required by Penal Law section 60.27:

Although the restitution amount did not exceed the agreed-upon limit, the record is devoid of any hearing, colloquy or judicial determination confirming the actual out-of-pocket medical expenses incurred by the victim (see Penal Law § 60.27; CPL 400.30). Absent record evidence that the restitution imposed satisfied the requirements of Penal Law § 60.27, the order of restitution must be vacated and the matter remitted to County Court for reconsideration in accordance therewith … People v Jimenez- Rivera, 2026 NY Slip Op 01421, Third Dept 3-12-26

Practice Point: Penal Law 60.27 requires record evidence of the amount of restitution for out-of-pocket medical expenses.

 

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THE NYS GAMING COMMISSION RELIED ON HEARSAY TO FIND THAT PETITIONER, A RACE-HORSE TRAINER, VIOLATED A LIMIT IMPOSED ON THE AMOUNT OF A DRUG WHICH MAY BE ADMINISTERED TO A RACE HORSE; THE HEARSAY LETTERS FROM TWO LABORATORIES WHICH TESTED THE HORSE’S BLOOD CONSTITUTED INSUFFICIENT EVIDENCE OF THE VIOLATION BECAUSE THE LETTERS DID NOT DESCRIBE THE TESTING METHODS AND THE RELIABILTIY OF THOSE TESTING METHODS; MATTER REMITTED (THIRD DEPT).

The Third Department, annulling the NYS Gaming Commission’s ruling and remanding the matter for a new hearing, determined the Commission relied on hearsay to find that petitioner (a race-horse trainer) violated a rule limiting the amount of a drug (bute) which can be administered to a race horse. The petitioner brought an Article 78 proceeding arguing that the ruling was improperly based upon hearsay. The Article 78 proceeding was transferred to the Third Department:

Petitioner … contends that respondent failed to introduce competent evidence establishing the reliability of the testing that was conducted on the postrace samples that purportedly demonstrated the presence and concentration of bute. … [P]etitioner challenges the admission and reliance on a letter … providing the result of testing from the postrace sample. The objection lodged by petitioner’s counsel to the letter was that it could not be properly admitted through … the medical director for respondent … as he had not reviewed the testing data and was not involved in the testing process. … [S]n objecting to the letter received by respondent {from a second laboratory], counsel raised the same objection … . * * *

… [I]t is of particular note that the sole proof relied upon by respondent to establish that the bute concentration from postrace samples exceeded the permissible limit were the letters from the New York and California laboratories. The letter from the New York laboratory indicated the overage in bute concentration but did not provide for the method of testing, and although the method of testing was provided in the letter from the California laboratory, neither letter gave any indication as to the reliability or general acceptance of the tests utilized to ascertain the presence and concentration of bute in the postrace samples … . … [R]elying solely on the hearsay proof in this case to establish the rule violation rendered the hearing fundamentally unfair under the circumstances presented and persuades us to remand the matter for a new hearing … . Matter of Pletcher v New York State Gaming Commission, 2026 NY Slip Op 01435. Third Dept 3-12-26

Practice Point: Although an administrative agency may base a ruling on hearsay, here hearsay letters from laboratories describing the results of testing for a drug in a race horse’s blood did not rise to the level of “substantial evidence” because the testing methods and the reliability of those methods were not described.

 

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PLAINTIFF DID NOT KNOW WHAT CAUSED HER TO SLIP ON A STAIRWAY STEP BUT SHE TESTIFIED SHE LOOKED FOR SOMETHING TO HOLD ONTO AND THERE WAS NO HANDRAIL; THERE WAS A QUESTION OF FACT WHETHER THE ABSENCE OF A HANDRAIL WAS A PROXIMATE CAUSE OF HER FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this stairway slip and fall case should not have been granted. Although plaintiff did not know what caused her to slip on the step, she testified she “wanted something to hold on to” but there was no handrail:

Although the plaintiff testified that she did not know what caused her to slip on the step, she also testified that she “wanted to hold onto something,” but she “didn’t have anything to hold onto.” Even if the plaintiff’s fall was precipitated by a misstep, her testimony that she looked for something to hold onto, but there was nothing there, presented “an issue of fact as to whether the absence of a handrail was a proximate cause of her injury” … . Flores v 1298 Grand, LLC, 2026 NY Slip Op 01340, Second Dept 3-11-26

Practice Point: Here plaintiff’s testimony that she did not know what caused her to slip on a stairway step did not warrant summary judgment in defendant’s favor. There was no handrail and plaintiff testified she “looked for something to hold onto.” Therefore a question of fact was raised about whether the absence of a handrail rendered the stairway unsafe and was a proximate cause of the fall.

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PURSUANT TO THE RES IPSA LOQUITUR DOCTRINE, THERE IS A QUESTION OF FACT WHETHER EPIDURAL INJECTIONS WERE DONE NEGLIGENTLY; THE FACT THAT PLAINTIFF SIGNED A CONSENT FORM WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT ON THE LACK OF INFORMED CONSENT CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motions for summary judgment in this medical malpractice and lack of informed consent action should not have been granted. The plaintiff raised a question of fact re: medical malpractice under the res ipsa loquitur doctrine. And the fact that plaintiff signed a consent form was not sufficient to warrant summary judgment on the lack of informed consent cause of action:

… [T]he doctrine of res ipsa loquitur was applicable to raise a triable issue of fact as to whether the defendants negligently administered the epidural injections. “To raise a triable issue of fact as to the applicability of that doctrine, a plaintiff must show that ‘(1) the event is of the kind that ordinarily does not occur in the absence of someone’s negligence; (2) the instrumentality that caused the injury is within the defendants’ exclusive control; and (3) the injury is not the result of any voluntary action by the plaintiff'” … . Here, the plaintiff raised a triable issue of fact as to whether his injury was of a kind that ordinarily does not occur in the absence of negligence, as Weingarten opined that the plaintiff would not have developed an MSSA infection if the defendants had adhered to the proper performance of “sterile techniques” in accordance with the applicable standards of care … . * * *

“‘To establish a cause of action to recover damages based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury'” … . “The fact that a plaintiff signed a consent form, standing alone, does not establish a defendant’s prima facie entitlement to judgment as a matter of law” … . Here, the defendants’ submissions failed to establish, prima facie, that the plaintiff was adequately informed of the reasonably foreseeable risks of the epidural injections … . Phillips v Varma, 2026 NY Slip Op 01238, Second Dept 3-4-26

Practice Point: Consult this decision for insight into the application of the res ipsa loquitur doctrine to medical malpractice.

Practice Point: Plaintiff’s signing a consent form alone does not warrant granting a defendant’s motion for summary judgment on a “lack of informed consent” cause of action.

 

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NONE OF DEFENDANT’S CONVICTIONS STOOD UP TO APPELLATE SCRUTINY; THE GRAND LARCENY AND CRIMINAL IMPERSONATION CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE; THE COUNTS CHARGING SCHEME TO DEFRAUD AND APPEARING AS AN ATTORNEY WITHOUT BEING ADMITTED WERE DISMISSED AS DUPLICITOUS (SECOND DEPT).

The Second Department reversed the grand larceny and criminal impersonation counts, with the People’s consent, under a weight-of-the-evidence analysis. The proof demonstrated the grand larceny counts failed because the “victims” voluntarily gave defendant the money. The criminal impersonation counts failed because the defendant did not impersonate a “real person.” The scheme to defraud and “appearing as an attorney without being admitted” counts were dismissed as duplicitous:

… [T]he counts of scheme to defraud in the first degree and practicing or appearing as an attorney without being admitted and registered were duplicitous. “A count in an indictment is void as duplicitous when it charges more than one offense” … . “Even if a count is valid on its face, it is nonetheless duplicitous where the evidence presented to the grand jury or at trial makes plain that multiple criminal acts occurred during the relevant time period, rendering it nearly impossible to determine the particular act upon which the jury reached its verdict” … . Here, neither the verdict sheet nor the jury charge explained how the testimony and evidence adduced at trial applied to the three counts of scheme to defraud in the first degree or the three counts of practicing or appearing as an attorney without being admitted and registered, including which counts pertained to which of the complainants. Under the circumstances, the challenged counts were duplicitous because it is impossible to determine the particular acts upon which the jury reached its verdict with respect to each of the counts … . People v Rafikian, 2026 NY Slip Op 01232, Second Dept 3-4-26

Practice Point: Consult this decision for an example of dismissal of indictment counts as duplicitous. It was not possible to determine which allegation in the counts was the basis of the the jury’s decision to convict.

 

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