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AN ANONYMOUS RADIO TRANSMISSION PROVIDED THE COLOR, MAKE, LOCATION AND LICENSE PLATE NUMBER OF A CAR WHICH WAS ALLEGED TO HAVE BEEN CARJACKED; THE POLICE OFFICERS FORCIBLY STOPPED THE CAR BEFORE VERIFYING THE LICENSE PLATE NUMBER; THE POLICE DID NOT HAVE “REASONABLE SUSPICION” AT THE TIME OF THE STOP (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined that the forcible stop of the vehicle defendant was driving was not supported by “reasonable suspicion.” The stop was based upon an anonymous radio transmission. The transmission provided the color, make, license plate number and location of a vehicle which had been carjacked. The police saw a vehicle matching the description in a parking lot but did not verify the license plate number until after the forcible stop:

… [T]he arresting officer testified that at approximately 12:30 a.m. on June 30, 2016, he and his partner received a radio transmission that a black Toyota with Pennsylvania license plate JCS1537 had been carjacked, the car was being tracked in real time, and its current location was near West 165th Street and Amsterdam Avenue in Manhattan. No evidence was presented as to the basis for the transmission or how the vehicle was being tracked. The officers responded to that location and saw a man standing by the trunk of a black Toyota with his hands by his waist in an open-air parking lot. A parking lot attendant confirmed that a black Toyota with Pennsylvania license plate had recently entered the lot. The officers then saw the black Toyota trying to exit. The officer stopped the car by drawing his gun, putting his hand up, and telling it to stop. The officer noticed that the Toyota had no front plate, which was not required in Pennsylvania, and a parking receipt on the windshield for the same license plate number as the stolen vehicle. * * *

The police officer’s testimony failed to provide any information that would have corroborated the anonymous radio transmission. Without knowing the source or nature of the tip with respect to either the carjacking report or the real-time tracking, the forcible stop was not justified by a reasonable suspicion … . The testimony that defendant was standing near the trunk of a black Toyota in a parking lot was not corroborative since such conduct was neither unlawful nor suspicious. The officer’s testimony indicated that he only noticed the lack of the front license plate and parking receipt reflecting a matching license number with the carjacked vehicle after he had already forcibly stopped defendant. Thus, this corroborating information cannot justify the officer’s actions … . People v Martinez-Jaquez, 2026 NY Slip Op 02045, First Dept 4-2-26

Practice Point: Consult this decision for insight into the corroboration required before the police can act on an anonymous tip.

 

PENAL LAW 220.39(1) AND 220.16(1) DO NOT REQUIRE KNOWLEDGE OF THE SPECIFIC DRUG INVOLVED; ONLY KNOWLEDGE THAT THE SUBSTANCE IS A “NARCOTIC DRUG” IS REQUIRED; THEREFORE PENAL LAW 220.16(1) AND 21 USC 841(1)(A) ARE “STRICTLY EQUIVALENT” OFFENSES FOR PURPOSES OF A SECOND FELONY OFFENDER ADJUDICATION (FIRST DEPT)

The First Department, overruling precedent, determined that the knowledge element of Penal Law 220.16(1) (criminal possession of a controlled substance) requires only that a defendant know that the substance is a “narcotic drug” and does not require knowledge that the substance is a specific drug. Therefore Penal Law 220.16(1) is equivalent to 21 USC 841(1)(a) and defendant can be sentenced as a second felony offender based on the prior federal conviction:

… Penal Law § 220.39(1) … [states that] a person is guilty of criminal sale of a controlled substance in the third degree “when he knowingly and unlawfully sells . . . a narcotic drug.” We now hold that the “nature” of the substance possessed under Penal Law § 220.39(1), and under Penal Law § 220.16(1), the statute at issue in the instance case, is, in accordance with the statutory language, “a narcotic drug.” Knowledge of the particular drug possessed is not required. This definition also aligns the knowledge requirement with other decisions of this Court. For example, in People v Martin (153 AD2d 807, 808 [1st Dept 1989], lv denied 74 NY2d 950 [1989]), we held, in a different context, that “Penal Law § 220.16(1) does not distinguish between the types of narcotics possessed, but treats all drugs classified as narcotics interchangeably.”

Under the correct definition of the nature of the substance possessed, defendant’s federal conviction and Penal Law § 220.16(1) are strictly equivalent. People v Jones, 2026 NY Slip Op 01857, First Dept 3-26-26

Practice Point: Here the First Department overruled precedent which held that the knowledge element of drug-possession charges required knowledge of the specific drug involved. Because the knowledge element requires only that a defendant know the possessed substance is a “narcotic drug,” Penal Law 220.16(1) is strictly equivalent to the federal statute 21 USC 841(1)(a) for purposes of a second felony offender adjudication.

 

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PLAINTIFF WAS STANDING ON AN A-FRAME LADDER WHEN AN ELECTRICAL EXPLOSION CAUSED HIM AND THE LADDER TO FALL TO THE GROUND; THERE WAS NO EVIDENCE THE LADDER WAS DEFECTIVE; BECAUSE PLAINTIFF DID NOT PRESENT ANY EVIDENCE THAT A SAFETY DEVICE WOULD HAVE PREVENTED THE FALL, HE WAS NOT ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Rodriguez, determined plaintiff in this ladder-fall case was not entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was standing on an A-frame ladder when a wire fed in by another worker struck and electric panel causing an explosion. Plaintiff and the ladder fell to the floor. The evidence did not demonstrate the ladder was defective. And plaintiff did not present any evidence that additional safety devices would have prevented the ladder from falling over:

Nazario applies … . … [T]here the plaintiff was not entitled to summary judgment due to the presence of several triable issues of fact (see Nazario, 28 NY3d at 1055). The record … lacked evidence concerning whether the plaintiff “should have been provided with additional safety devices and [whether] the failure to do so was a contributing cause of the accident” … . Summary judgment was appropriately denied, … even though the plaintiff “hung onto the ladder” and the ladder “fell to the ground” with the plaintiff “because it was not secured to something stable” … . As in Nazario, plaintiff here failed to submit any evidence—whether by his own testimony or through an expert opinion—addressing gravity-related safety devices or precautions that might have prevented his fall … . Arias v Brooks Holdings Corp., 2026 NY Slip Op 01841, First Dept 3-26-26

Practice Point: If a plaintiff in a ladder-fall case presents no evidence the ladder itself was defective, summary judgment on the Labor Law 240 (1) cause of action will not be granted unless the plaintiff presents evidence that an additional safety device (which was not provided) would have prevented the fall.

 

DEFENDANT BUILDING OWNER AND MANAGER WERE ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE UNDER THE STORM-IN-PROGRESS DOCTRINE, 18 INCHES OF SNOW HAD FALLEN LESS THAN TWO HOURS BEFORE; PLAINTIFF SLIPPED AND FELL ON WATER ON STAIRS IN THE LOBBY; PLAINTIFF’S OWN TESTIMONY DEMONSTRATED DEFENDANTS DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendants (the building owner and manager) were not liable for plaintiff’s slip and fall on water on interior stairs because of the storm-in-progress doctrine:

Defendants, the owner and manager of the building in which plaintiff was injured, established their entitlement to summary judgment by submitting undisputed meteorological data establishing that plaintiff’s accident occurred no more than 1 hour and 50 minutes after cessation of a major winter storm, which resulted in the accumulation of more than 18 inches of snow. Thus, under the storm-in-progress doctrine, defendants’ duty to maintain the lobby in a safe condition was suspended at the time plaintiff slipped and fell on the stairs, as defendants did not have a reasonable amount of time to permit discovery and remediation of the storm-related wet condition … .

Defendants also demonstrated that there were no triable issues of fact as to whether they created the condition or had actual or constructive notice of it. Plaintiff does not maintain that defendants created the hazardous condition. As to notice, plaintiff himself testified that he saw no wet condition or puddles on the stairs when he ascended them approximately 45 minutes before he slipped and fell on the way down; he also testified that only after his fall did he see dirty water on the stairs and small puddles in the lobby … . Therefore, the wet condition could not have existed for more than 45 minutes, which is insufficient to discover and remedy a dangerous condition … . Alvizurez v North State Realty Assoc. LLC, 2026 NY Slip Op 01839, First Dept 3-26-26

Practice Point: Consult this decision for insight into the application of the storm-in-progress doctrine in a slip and fall case.​

Practice Point: Note that a plaintiff’s own testimony can reveal that a defendant did not have constructive notice of the condition which caused plaintiff’s slip and fall.

 

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THE LANDLORD DID NOT OWE A DUTY TO A TENANT TO PREVENT AN ASSAULT BY ANOTHER TENANT; THE LANDLORD’S DUTY IS NOT TRIGGERED UNLESS THE LANDLORD HAS THE AUTHORITY, ABILITY AND OPPORTUNITY TO CONTROL THE ACTIONS OF A TENANT-ASSAILANT; THE ABILITY TO EVICT DOES NOT CONSTITUTE THE REQUISITE AUTHORITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined the landlord did not have a duty to prevent one tenant from attacking another:

… [The landlord] demonstrated prima facie that they were not liable for the third-party defendant’s alleged assault on plaintiff. A landlord has no duty to prevent one tenant from attacking another tenant unless it has the authority, ability, and opportunity to control the actions of the assailant …  Here, defendants had no authority or opportunity to remove Vasquez from the premises prior to the assault. Defendants’ employee testified that defendants were unaware of prior complaints of [the tenant] engaging in violence, and plaintiff acknowledged that before the attack she never complained about [the tenant] being violent. Moreover, the assault upon the plaintiff was not reasonably foreseeable … .

Plaintiff failed to raise an issue of fact in opposition. Defendants’ ability to evict [the tenant] did not constitute the requisite authority, ability, and opportunity to control him … . Plaintiff failed to identify any prior complaints about [the tenant] being violent or making explicit threats of violence. Plaintiff’s generalized complaints about unsupervised children on the complex and about other children engaging in bullying were not sufficient to put defendants on notice that [the tenant] might be violent … . Rodriguez v Madison Sec. Group, Inc., 2026 NY Slip Op 01869, First Dept 3-26-26

Practice Point: Consult this decision for insight into the nature of a landlord’s duty to prevent an assault by one tenant against another.

 

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THE JUDGE DID NOT MAKE EVEN A “MINIMAL INQUIRY” WHEN DEFENDANT STATED HE WANTED ANOTHER ATTORNEY; DEFENDANT DID NOT ABANDON THE ISSUE BY NOT RAISING IT AGAIN WHEN HE PLED GUILTY; PLEA VACATED (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, in a full-fledged opinion by Judge Rodriguez, over a dissenting opinion, determined defendant was not afforded an adequate opportunity to explain his request for a new attorney. Defendant attempted to raise the issue at an early court appearance, but the judge made no inquiry. Subsequently, without raising the issue again, defendant pled guilty while represented by the same attorney:

“Where a defendant makes a seemingly serious request for reassignment of counsel, the court must make at least a ‘minimal inquiry’ as to ‘the nature of the disagreement or its potential for resolution’ ” … . Generally, to trigger the “minimal inquiry” requirement, the defendant must provide specific factual allegations … .

However, the “minimal inquiry” requirement presumes a fair opportunity to be heard. The law, in other words, does not permit the court to satisfy its obligations in this area by refusing the defendant an opportunity to record a potentially serious request. Thus, if the court denies the defendant’s “request for substitution of counsel without conducting any inquiry whatsoever, and without permitting defendant to explain, either orally or in writing, why such an inquiry might be necessary,” the defendant’s conviction should be vacated … .

Here, the court summarily denied defendant’s application without giving him a fair opportunity to be heard. Specifically, when defendant first asked to speak, the court ignored him altogether. When defendant made a second attempt, the court refused to permit him to address the issue and instead instructed him to “[t]alk to [his] lawyer.” As the People acknowledge, defendant had to interrupt the proceeding on his third attempt to communicate even his most elemental “need [for] a new attorney.” People v Dinkins, 2026 NY Slip Op 01742, First Dept 3-24-26

Practice Point: Consult this opinion for insight into the inquiry which must be made by a judge when a defendant requests a new attorney.

 

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ONE PLAINTIFF-TENANT TESTIFIED HE MADE SEVERAL COMPLAINTS TO THE LANDLORD DEFENDANTS ABOUT THE TENANT WHO SET FIRE TO THE APARTMENT BUILDING, INFORMING THE DEFENDANTS THAT THE TENANT THREATENED “TO KILL EVERYONE” IN THE BUILDING AND WAS SEEN CARRYING GASOLINE TANKS INTO THE BUILDING; THE DEFENDANT LANDLORDS DID NOT HAVE A DUTY TO PREVENT THE TENANT FROM STARTING THE FIRE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the landlord defendants did not have a duty to investigate, monitor, or control a tenant who set fire to the five-story building injuring the plaintiff-tenants:

One of the plaintiffs testified that he made several complaints to defendants concerning the tenant’s behavior before the incident. Specifically, he reported to defendants that the tenant threatened “to kill everyone” in the building and was seen carrying gasoline tanks into the building. The motion court found that this testimony “raise[d] issues of fact as to whether defendants failed to take minimal measures to investigate the presence of gasoline in the apartment, and to protect the occupants from the risk of fire arising out of the presence of gasoline.”

The motion court erred in applying the “minimal precaution” standard set forth in negligent security cases because the assailant here was not a third-party nontenant … . Rather, he was a tenant in the building who was lawfully permitted to be there at the time of the fire. The appropriate test is, therefore, whether defendants lacked the “authority, ability, and opportunity to control” the tenant’s actions such that they had a duty to prevent him from starting the fire …  . Applying that standard to the facts here, defendants had no authority or ability to evict the tenant under the lease or New York law prior to the fire … . Moreover, plaintiffs failed to establish a clear basis under New York law for defendants to investigate, monitor, or control the tenant which could have prevented him from setting the fire … . Accordingly, defendants established their entitlement to summary judgment on the basis of their inability to prevent the tenant from starting the fire that caused plaintiffs’ injuries. Molina v Appula Mgt. Corp., 2026 NY Slip Op 01603 First Dept 3-19-26

Practice Point: The negligent-security-minimal-precaution standard of care for landlords applies only to security re: the actions of non-tenants. Here it was a tenant who set fire to the apartment building and injured other tenants. The appropriate test for the landlord’s duty re: a tenant’s actions is whether the landlord has the authority, ability, and opportunity to control the tenant’s actions under the lease or New York law, which was not the case here.

 

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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.

 

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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.

 

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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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