You are here: / Fourth Department

Tag Archive for: Fourth Department

, ,

THE PEOPLE’S AFFIRMATION IN SUPPORT OF THEIR MOTION TO PREVENT REMOVAL OF THE 17-YEAR-OLD’S CASE TO FAMILY COURT WAS NOT BASED ON THE PROSECUTOR’S PERSONAL KNOWLEDGE AND FAILED TO ALLEGE DEFENDANT’S SPECIFIC CONDUCT; THE MOTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the People’s motion to prevent removal of the 17-year-old defendant’s case to Family Court should have been denied:

The court was … required to order removal of the action to Family Court unless the People successfully moved to prevent removal by establishing “that extraordinary circumstances exist that should prevent the transfer” … . Such a motion must “contain allegations of sworn fact based upon personal knowledge of the affiant, and shall indicate if the district attorney is requesting a hearing” … . Whether extraordinary circumstances exist to preclude removal to Family Court is a discretionary determination to be made by a court after consideration of “the totality of the facts and circumstances” … . A court exercising that discretion, however, should give consideration to the legislative intent that retention should be the exception and not the rule, i.e., that only “extremely rare and exceptional cases” involving “highly unusual and heinous facts” and “strong proof that the young person is not amenable [to] or would not benefit in any way from the heightened services in the family court” should be precluded from removal … .

Here, the People’s supporting affirmation relied heavily on the nature of the charges against defendant. … [E]ach count on which defendant was indicted also named 17 codefendants with no factual allegations that would permit parsing out defendant’s specific conduct in, for example, possessing either a controlled substance or a weapon. Although defendant was also alleged to have committed conspiracy in the second degree, he was not alleged to have committed any overt act in furtherance of that conspiracy. The prosecutor also failed to state that the few factual allegations that were included in the People’s supporting affirmation were based on the prosecutor’s “personal knowledge” …  and that conclusion is not a reasonable inference from the affirmation as a whole … . Instead, there is no indication from what specific sources any information was obtained, no supporting documentation was included with the motion, and no request for a hearing was made … . Although the People also argued that defendant’s previous arrests on similar charges weighed against removal, we note that “reoffense in and of itself” is not “extraordinary” (id. at 666 [internal quotation marks omitted]). The mere fact of a prior charge or charges does not provide evidence of defendant’s actual prior conduct, i.e., the specific “illegal or immoral acts,” if any, that might have led to those charges … , or whether defendant’s conduct constituted “escalating criminal behavior” … . The People’s motion therefore failed to contain sufficient “allegations of sworn fact based upon personal knowledge of [an] affiant” … on which the court could have relied in considering defendant’s actual role in the charged offenses in relation to his numerous codefendants, many of whom were adults … . People v Quashawn C., 2026 NY Slip Op 05892, Fourth Dept 10-9-26

Practice Point: Consult this decision for a detailed discussion of what a prosecutor must demonstrate to prevent removal of a 17-year-old defendant’s case to Family Court.

 

, ,

PRESENTING A VIDEOTAPED INTERVIEW OF THE 17-YEAR-OLD VICTIM TO THE GRAND JURY IN THE ABSENCE OF A COURT ORDER VIOLATED THE CRIMINAL PROCEDURE LAW AND IMPAIRED THE INTEGRITY OF THE PROCEEDINGS; INDICTMENT DISMISSED WITHOUT PREJUDICE (FOURTH DEPT).

The Fourth Department, dismissing the indictment without prejudice, determined presenting a videotaped interview of the 17-year-old victim without a court order violated the Criminal Procedure Law and impaired the integrity of the proceedings:

Defendant appeals from a judgment convicting him upon his plea of guilty of attempted rape in the first degree … . Defendant contends that County Court erred in denying that part of his omnibus motion seeking to dismiss the indictment on the ground that the grand jury proceeding failed “to conform to the requirements of [CPL] article [190] to such degree that the integrity thereof [was] impaired and prejudice to the defendant” resulted (CPL 210.35 [5]). We agree. The People correctly concede on appeal that the prosecutor improperly presented to the grand jury a videotaped interview of the approximately 17-year-old victim conducted by a social services caseworker in lieu of her live testimony without adhering to any of the requirements of CPL 190.32, including the obligation to seek a court order authorizing the videotaping of an examination of the victim as a “special witness” … . We agree with the parties that, under these circumstances, this error rendered the proceeding so irregular “that the integrity thereof [was] impaired and prejudice to . . . defendant may [have] result[ed]” (CPL 210.35 [5]; see CPL 210.20 [1] [c] …). People v Thompson, 2026 NY Slip Op 05874, Fourth Dept 10-9-26

Practice Point: Presenting a videotaped interview of a crime victim to a grand jury without a court order may impair the integrity of the proceedings requiring dismissal of the indictment.

 

, ,

DEFENDANT’S WAIVER OF APPEAL WAS INVALID; DEFENDANT WAS SUBJECTED TO CUSTODIAL INTERROGATION WHICH WAS NOT PRECEDED BY THE MIRANDA WARNINGS; DEFENDANT’S STATEMENTS SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) defendant’s waiver of appeal was invalid, and (2) defendant’s statements made in response to questioning not preceded by the Miranda warnings should have been suppressed:

… [D]efendant was a suspect in the burglary of the victim’s home after defendant’s fingerprint was found on a bedroom window. Investigators learned that defendant was scheduled to meet his parole officer. After defendant walked into his parole officer’s office, three police investigators entered the office to question him. At no point during the questioning of defendant did the officers give defendant his Miranda warnings or inform defendant that he was free to leave. Furthermore, the investigator who testified at the suppression hearing could not answer definitively whether defendant would have violated parole if he had refused to talk with the investigators and left the office. Defendant met with his parole officer only after the investigators concluded their interview. Under these circumstances, a reasonable person would have thought that they were not free to leave during questioning … . Moreover, the questions by the investigators were accusatory in nature, rather than merely investigatory, and were designed to elicit an incriminating response … . We conclude that defendant was in custody and was subjected to interrogation. People v Clegg, 2026 NY Slip Op 05663, Fourth Dept 10-2-26

Practice Point: Here defendant was questioned by investigators when he showed up for a meeting with his parole officer. The investigators did not tell defendant he was free to leave and did not give him the Miranda warnings. The questioning was accusatory and designed to incriminate. Therefore defendant’s motion to suppress his statements to the investigators should have been granted.

 

, ,

THE “DOCTRINE OF PRIMARY JURISDICTION” APPLIED TO THIS BREACH OF CONTRACT ACTION BETWEEN UTILITY PROVIDERS; THE UNDERLYING ACTION SHOULD HAVE BEEN STAYED, NOT DISMISSED, PENDING A RULING BY THE PUBLIC SERVICE COMMISSION (PSC) (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, applying the “doctrine of primary jurisdiction,” determined the underlying breach of contract action between the utility providers should have been stayed (not dismissed without prejudice) pending a ruling by the Public Service Commission (PSC):

Although “[t]here is no fixed formula governing the application of the doctrine to the facts of a particular case . . . [,] the court must determine in each case whether the reasons for the doctrine are present and whether the purposes of the doctrine will be served by its application” … . Factors considered by courts in determining whether the doctrine applies include, “(1) whether the question at issue is within the conventional experience of judges or whether it involves technical or policy considerations within the agency’s particular field of expertise; (2) whether the question at issue is particularly within the agency’s discretion; (3) whether there exists a substantial danger of inconsistent rulings; and (4) whether a prior application to the agency has been made” … . * * *

… [W]e conclude that the PSC has primary jurisdiction over plaintiff’s claims because “the determination of the issues involved, under a regulatory scheme, depends upon the specialized knowledge and experience of th[at] agency” … . * * *

… [T]he court abused its discretion to the extent that it dismissed the complaint without prejudice instead of staying the action pending the PSC’s determination in the proceedings pending before it. In determining the appropriate disposition where the primary jurisdiction doctrine applies, “[a] court in its discretion may choose to dismiss the case without prejudice—but only if the parties would not be unfairly disadvantaged” … .  * * * … [B]y dismissing the complaint without prejudice instead of staying the action, the court would unfairly disadvantage plaintiff because, if plaintiff were to commence another action after the PSC issued its determination, the court might dismiss some of its claims on statute of limitations grounds … . Agway Energy Servs., LLC v Central Hudson Gas & Elec. Corp., 2026 NY Slip Op 05621, Fourth Dept 10-2-26

Practice Point: Consult this decision for an in-depth discussion of the applicability of the “primary jurisdiction doctrine” which allows an agency (here the Public Service Commission) to rule before court liligation proceeds.

Practice Point: Whether to stay the court proceedings or dismiss the proceedings without prejudice pending the agency ruling is a matter of discretion. Here the action should have been stayed, not dismissed, because the statute of limitations might preclude plaintiff from alleging certain causes of action in a new complaint.

 

, ,

TO STATE A MERITORIOUS CLAIM AGAINST THE STATE IN THE COURT OF CLAIMS, CLAIMANT NEED NOT MAKE OUT A PRIMA FACIE CASE; IT IS ENOUGH THAT THE CLAIM HAS THE APPEARANCE OF MERIT; HERE CLAIMANT’S APPLICATION FOR PERMISSION TO FILE A LATE CLAIM SHOULD HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing the Court of Claims, determined claimant’s application for permission to file a late claim should have been granted. The Court of Claims found that claimant did not demonstrate a meritorious claim. The Fourth Department explained that a claimant need not make out a prima facie case at this stage. If the claim is not patently groundless, frivolous or legally defective it should be deemed meritorious:

… [W]hile being treated in the inpatient psychiatric unit at Upstate, she was restrained by security officers and nurses because she was engaging in self-harm or had refused medication and injection. According to claimant, security officers escorted her to a seclusion room and forcefully pinned her down, with several security officers lying on top of her while her left arm was underneath her body. Claimant’s medical records confirmed that four security officers and two nurses were involved in the restraining incident. Claimant allegedly screamed out in pain, and a nurse told the security officers to get off of her. Consistent with claimant’s allegations, the medical records establish that, as a result of the incident, claimant suffered a dislocated left elbow, which first required a closed reduction under sedation and placement of a cast and later required surgery under general anesthesia to correct the recurrent instability in her elbow and a complete tear of the ligament complex.

… [T]he evidence presented by claimant in support of the application demonstrates that the security officers and nurses may have caused her injuries, as she alleges, by negligently applying excessive force while attempting to restrain her … . Further, contrary to the State’s assertion, to the extent that Upstate’s account of the incident in the medical records suggests that claimant somehow dislocated her own elbow, that notation created at most a factual issue with respect to causation … . Consequently, on this record, it cannot be said that “the claim raised is patently groundless, frivolous or legally defective” … . … [C]aimant’s submissions on the application are sufficient, at this stage in the proceedings, to demonstrate that there appears to be merit to her claim within the meaning of Court of Claims Act § 10 (6) … . Viola v SUNY Upstate Univ. Hosp., 2026 NY Slip Op 04604, Fourth Dept 7-24-26

Practice Point: In seeking permission to make a late claim in the Court of Claims, claimant need not make out a prima facie case. It is enough that the claim has the appearance of merit, i.e., that it is not patently groundless, frivolous or legally defective.

 

,

THE DERIVATIVE NEGLECT FINDING WAS BASED ON A PRIOR FINDING MOTHER NEGLECTED THREE OLDER CHILDREN; BUT THE CONDUCT WHICH WAS THE BASIS OF THE PRIOR NEGLECT FINDING WAS NOT DESCRIBED IN THE MOTION PAPERS; THE BURDEN OF PROOF, THEREFORE, NEVER SHIFTED TO MOTHER AND THE MOTION SHOULD HAVE BEEN DENIED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the burden never shifted to mother in this derivative neglect proceeding. The derivative neglect finding was based upon a prior finding mother neglected three older children. But the order in that case did not describe the conduct that resulted in the “Inadequate guardianship” finding:

… [W]e conclude that the court erred in granting the motion because petitioner’s submissions did not satisfy its initial burden to show that the subject child was derivatively neglected … . To the extent that petitioner relied on the court’s prior order of disposition finding that the mother had neglected the three older children as the basis to support a finding of derivative neglect with respect to the subject child, we note that the prior order merely states that she neglected the older children through “[i]nadequate guardianship, thus placing the children at risk of harm.” Inasmuch as the prior order did not identify what conduct by the mother had been substantiated for purposes of making the “inadequate guardianship” finding with respect to the three older children, petitioner did not establish the egregiousness of that conduct or show that, with respect to the subject child, the potential harmful result of that conduct could be said to reasonably still exist … . In other words, the evidence supplied by petitioner did not establish, as a matter of law, the nature of the mother’s conduct that supported the prior finding of neglect or its surrounding circumstances … . Matter of Ty’Shawn B., 2026 NY Slip Op 04694, Fourth Dept 7-24-26

Practice Point: A motion for summary judgment seeking a derivative neglect finding cannot merely mention a prior “inadequate guardianship” finding regarding mother’s other children with no description of the underlying conduct. The moving papers must demonstrate egregious conduct which is ongoing.

 

,

THE STATE’S SNOWPLOW DRIVER WAS NOT DRIVING ON A PLOW ROUTE WHEN HE MADE AN ILLEGAL RIGHT TURN AND STRUCK PLAINTIFF’S CAR; THE VEHICLE AND TRAFFIC LAW 1103(B) “RECKLESS DISREGARD” STANDARD, THEREFORE, DID NOT APPLY; CLAIMANT’S CLAIM SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined the State’s snowplow driver was not engaged in work on the highway when it made an illegal right turn on a city street, striking claimant’s car. Therefore the “reckless disregard” negligence standard in Vehicle and Traffic Law 1103(b) was not applicable. The Fourth Department granted the claim and sent the action back for a trial on damages only:

Here, the evidence at trial established that the snowplow driver’s route consisted of a series of exits on I-190 in Buffalo, including the on-ramps and off-ramps, and that he would routinely travel on city streets, including the street on which the accident occurred, to access the next ramp on his route. Inasmuch as the testimony reflects that the snowplow driver did not have the authority to plow or salt city streets such as the one where the accident occurred, we conclude that, at the time of the accident, he “was not driving on part of his plow route but instead was traveling from one part of his route to another by way of a [municipal] road that he was not responsible for plowing” … .

Inasmuch as the snowplow driver admitted that he was aware that he was not permitted to make a right turn against a red light at the subject intersection, admitted that he was aware that other drivers treated that portion of road as having two northbound lanes, and nonetheless elected to make an illegal right turn on red from the left-hand lane, we conclude that the evidence established that the snowplow driver was negligent … . We further conclude that claimant was not contributorily negligent inasmuch as he was lawfully on the roadway and stopped at a red light when struck … . Bushley v New York State Thruway Auth., 2026 NY Slip Op 04686, Fourth Dept 7-24-26

Practice Point: Here the State’s snowplow driver was not driving on a plow route when he made an illegal right turn and struck plaintiff’s car. The “reckless disregard” standard, which would have applied if the snowplow were engaged in work on a plow route, did not apply. Ordinary negligence is the applicable standard.

 

,

THE “NOTICE-OF-A-DANGEROUS-CONDITION” REQUIREMENT FOR A SLIP AND FALL CAUSE OF ACTION BROUGHT BY A POLICE OFFICER PURSUANT TO GENERAL MUNICIPAL LAW 205-E IS IDENTICAL TO THE NOTICE REQUIREMENT IN A COMMON LAW SLIP AND FALL ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the General Municipal Law standard for negligence includes the requirement that the municipal defendant have notice of the dangerous condition. General Municipal Law section 205-e provides police officers with a cause of action for negligence where a well-developed body of law is violated. The question raised by the appeal of the denial of the municipal defendant’s motion for summary judgment is whether the notice requirement in a General Municipal Law 205-e action is the same as at common law. The Fourth Department held that it is: The police officer slipped and fell on icy metal stairs but failed to demonstrate the municipal defendant had notice of the condition … .

[U]nder General Municipal Law § 205-e, a defendant is, in fact, entitled to notice of the dangerous condition at issue before liability may attach. Indeed, courts have made plain that “[n]otice is clearly material to recovery under the statute … . * * *

… [A]ccepting plaintiffs’ contention that notice is not required would unjustifiably expand the duty owed by premises owners to one discrete class of putative plaintiffs beyond any reasonable interpretation contemplated by the language of the statute, existing precedent or established policy. We decline to impose liability without fault upon those legally responsible for premises conditions when police officers are present, especially when the statute was not designed to provide them with greater protections than ordinary citizens. Alternatively stated, the duty owed by landowners to police officers under the statute is not broader than it is for any other class of individuals … . * * *

… [P]laintiffs failed to raise a triable issue of material fact with respect to the issue of notice; indeed, plaintiffs’ opposition to the motion did not address the issue of notice at all … . Plaintiffs also have not contended that the icy condition at issue here was sufficiently recurrent, or was of such a longstane been aware of the need to more promptly remedy it … . Whelan v Buffalo Mun. Hous. Auth.,2026 NY Slip Op 04624, Fourth Dept 7-24-26

 

IN THE CONTEXT OF A SLIP AND FALL, “FAILURE TO WARN” OF A DANGEROUS CONDITION AND “FAILURE TO MAINTAIN A PREMISES IN A REASONABLY SAFE CONDITION” ARE DISTINCT CAUSES OF ACTION AND A PLAINTIFF MAY PROCEED ON ONE OR BOTH THEORIES; IN THIS “NEGLIGENT MOPPING” “EXCESS WATER ON THE FLOOR” CASE, THE “FAILURE TO WARN” CAUSE OF ACTION WAS PROPERLY DISMISSED, BUT THE “FAILURE TO MAINTAIN THE PREMISES IN A REASONABLY SAFE CONDITION” CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT). ​

​The Fourth Department, reversing (modifying) Supreme Court in this slip and fall case, noted that a “failure to warn” of a dangerous condition, and a “failure to maintain a premises in a reasonably safe condition” are distinct causes of action and a plaintiff may proceed on one or both theories. Here the “failure to warn” cause of action was properly dismissed. But the “failure to maintain the premises in a reasonably safe condition” cause of action should not have been dismissed. It was alleged mopping was negligently done leaving excess water on the floor:

… [D]efendants had the initial burden on their motion of establishing that they did not create the allegedly dangerous condition and that they did not have actual or constructive notice thereof … . We conclude that defendants failed to meet that burden inasmuch as they failed to establish that they did not create the allegedly dangerous condition by negligently mopping the area and leaving excess water on the floor … * * * Failure to warn of an alleged hazard is a separate and distinct theory of liability from the failure to maintain premises in a reasonably safe condition, and a plaintiff may proceed on one or both of those theories … . Brennan v Kandon, LLC, 2026 NY Slip Op 04685, Fourth Dept 7-24-26

Practice Point: In the context of a slip and fall, “failure to warn” and “failure to maintain the premises in a reasonably safe condition” are distinct causes of action and a plaintiff may proceed on one or both.​

 

,

AT THE SUPPRESSION HEARING THE ARRESTING OFFICER TESTIFIED HIS PARTNER TOLD HIM THERE WAS PROBABLE CAUSE TO ARREST AFTER HIS PARTNER SPOKE TO THE DRIVER; THE DEFENSE CHALLENGED THE INFORMATION IMPARTED BY THE DRIVER TO THE PARTNER UNDER THE FELLOW OFFICER RULE; BECAUSE NO EVIDENCE WAS PRESENTED TO DEMONSTRATE THE PARTNER HAD THE REQUISITE LEVEL OF SUSPICION, SUPPRESSION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the denial of defendant’s suppression motion, determined the People did not present evidence at the suppression hearing justifying handcuffing the defendant after a “tinted windows” traffic stop. The officer who testified at the hearing said his partner told him there was probable cause but he was not aware of what the driver told his partner. Because the defense challenged the information under the fellow officer rule, the People were required to demonstrate the officer who spoke with the driver had the requisite level of suspicion, but no evidence on that issue was presented:

We agree with defendant that, under these circumstances, by placing him in handcuffs after directing him to exit the vehicle, the troopers transformed the traffic stop into, at minimum, a “forcible stop and detention” … , which “must be justified by some additional circumstances, such as a threat of evasive conduct . . . ; a need to transport the defendant for a showup procedure . . . ; a fear that the suspect may interfere with the execution of a search warrant . . . ; or a concern for officer safety” … .

Although … the Trooper testified that he observed an “orange pill bottle with no markings on it in the center console of the vehicle,” that alone is insufficient to justify the forcible stop and detention … . The Trooper conceded that he could not see inside the bottle and did not know what was inside. He also did not observe any other indicia of criminality and did not see defendant acting in a suspicious manner. Although a conversation took place between the Trooper and his partner, defendant challenged that information under the fellow officer rule. The People were thus required to establish at the hearing that the partner, who imparted information to the Trooper, in fact possessed the requisite level of suspicion to act … . Here, however, the Trooper’s partner did not testify, and the Trooper testified that his partner did not relay the substance of the conversation with the driver to him. We are therefore unable to infer that the Trooper received information sufficient to justify his subsequent actions … . People v Purrier, 2026 NY Slip Op 04681, Fourth Dept 7-24-26

Practice Point: This case presents another example of a defense challenge to information passed from one police officer to another in the context of a probable-cause determination at a suppression hearing. The officer who testified at the hearing relied on information from his partner who told him there was probable cause to arrest after the partner spoke with the driver.  Because of the challenge under the fellow officer rule, the People were required to demonstrate the partner had the requisite level of suspicion after speaking with the driver, but the People presented no testimony on that issue.

 

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