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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.

 

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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.

 

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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.

 

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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.​

 

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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.

 

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THE DEFENSE SPECIFICALLY CHALLENGED THE RELIABILITY OF THE IDENTIFICATION OF THE DEFENDANT WHICH WAS RELAYED TO THE POLICE BY A CIVILIAN PROPERTY OWNER; THE PEOPLE FAILED TO ESTABLISH THE IDENTIFICATION WAS BASED UPON THE PROPERTY OWNER’S PERSONAL KNOWLEDGE, AS OPPOSED TO SPECULATION; SUPPRESSION GRANTED AND INDICTMENT DISMISSED (FOURTH DEPT). ​

The Fourth Department determined the People did not establish the legality of the defendant’s arrest, granted suppression and dismissed the indictment. The defendant specifically challenged the reliability of the identification of the defendant by a civilian property owner. The People failed to demonstrate the civilian’s identification was based upon personal knowledge as opposed to speculation:

The first officer testified that the civilian property owner had identified defendant in the video as the shooter and that she had reported having interacted with him more than 100 times.

We conclude that the civilian’s basis of knowledge was not established at the hearing. “The ‘basis-of-knowledge’ prong of the test may be satisfied upon a showing that the information furnished is so detailed as to make it clear that it must have been based upon personal knowledge” … . “The basis of knowledge component . . . requires that the information provided by the informant be corroborated orthrough details sufficient in number and suggestive of, or directly related to, the criminal activity informed about” … . Although the first officer testified that the civilian property owner had previously had more than 100 interactions with defendant, the record reflects that the level of detail needed to enable the court to determine whether her identification of defendant was “more than mere speculation” is lacking … . Notably, the People never offered the supporting deposition or the video of the underlying incident at the suppression hearing, and the hearing testimony failed to provide the requisite evidence of the civilian’s “own description of underlying circumstances personally observed” … . Although police observations can provide the corroborating details required to allow a court to properly infer a basis of knowledge, no such details were offered at the hearing … . As an example, the first officer testified that he had observed defendant “half a dozen times or so” prior to defendant’s arrest, but that he could not identify defendant in the video “because the video was grainy.” As another example, the court asked the first officer, “Did [the third officer] relay to you that he had had any prior involvement with [defendant]?,” to which the first officer responded, “I did not ask him.” As a result of the lack of detail, the court was relegated to reliance upon the first officer’s conclusory statement—provided to him by the civilian property owner—that defendant was the shooter in the underlying incident—”in order to determine the reliability of the information claimed to have established probable cause” … . People v Asbury, 2026 NY Slip Op 04617, Fourth Dept 7-24-26

Practice Point: Where the police rely on information provided to them by other officers, a computer database, civilians, etc,, for probable cause, if the defense specifically challenges the reliability of the source of the information the People must demonstrate its reliability at the suppression hearing. Here the police relied on an identification of the defendant by a civilian property owner who was shown a video. The basis of the property owner’s knowledge was not demonstrated at the suppression hearing and the indictment was dismissed on appeal.

CALLING PLAINTIFF A PEDOPHILE, THREATENING TO HAVE PLAINTIFF ARRESTED, AND THE STATEMENT “YOU’RE TAKING PICTURES OF 10-YEAR-OLD KIDS” CONSTITUTED NONACTIONABLE RHETORICAL OPINION, NOT DEFAMATION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this defamation action should have been granted. The court found that the statements accusing plaintiff of being a pedophile were expressions of opinion, not assertions of fact:

…[T]he employee [defendant] accused plaintiff of either “playing politics or [being] a fucking pedophile.” After plaintiff denied playing politics, the employee responded “Then you’re a fucking pedophile” and stated, “I’m going to Town right now and fucking see if I can get you arrested for being a fucking pedophile. You’re taking pictures of 10-year-old kids, are you crazy or what?” * * *

“Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation” ,,, .. “A pure opinion may take one of two forms. It may be a statement of opinion which is accompanied by a recitation of the facts upon which it is based, or it may be [a]n opinion not accompanied by such a factual recitation so long as it does not imply that it is based upon undisclosed facts” … . “Whether a particular statement constitutes fact or opinion is a question of law” … . “The dispositive inquiry . . . is whether a reasonable [listener] could have concluded that [the statements were] conveying facts about the plaintiff” … .* * *

“Rather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the court should look to the over-all context in which the assertions were made and determine on that basis whether the reasonable [listener] would have believed that the challenged statements were conveying facts about the . . . plaintiff” … . Indeed, the court should consider “the circumstances and . . . the broader social context (i.e., the factual background leading to the [statement])” to determine whether the “message would be taken by the ordinary person not literally, but figuratively” … , particularly where an “audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole” … . Bieber v Town of Hamburg, 2026 NY Slip Op 04605, Fourth Dept 7-24-26

Practice Point: Consult this decision for insight into the difference between statements which constitute “rhetorical opinion” and statements which constitute “defamation.”

 

DEFENDANT’S COUNTERCLAIMS MADE IN AN ACTION IN WHICH A DEFAULT JUDGMENT WAS GRANTED ARE NOT BARRED BY THE RES JUDICATA DOCTRINE; DEFENDANT, NOW AS A PLAINTIFF, CAN BRING A NEW ACTION BASED ON THE COUNTERCLAIMS; NEW YORK IS A “PERMISSIVE COUNTERCLAIM” JURISDICTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined the causes of action first brought as counterclaims in a prior action were not barred by the res judicata doctrine after a default judgment in the prior action:

“New York does not have a compulsory counterclaim rule” … . Thus, a defendant who fails to bring a counterclaim in an action that results in an adverse judgment will be barred from bringing that same claim only if ” ‘the two causes of action have such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the first’ ” … . Stated another way, “the permissive counterclaim rule operates to save from the bar of res judicata those claims for separate or different relief that could have been but were not interposed in the parties’ prior action so long as the second action is not based on a preexisting claim for relief that would impair the rights or interests established in the first action” … .

Inasmuch as the judgment sought by plaintiff in this action would not ” ‘destroy or impair rights or interests established’ ” by defendant’s default judgment in the prior action … , plaintiff’s complaint is not barred by the doctrine of res judicata. The mere fact that a counterclaim may serve as an offset to lessen the net amount owed to a plaintiff is not, in and of itself, sufficient to “impair” the rights established as a result of a default judgment inasmuch as every counterclaim—to the extent established by a defendant—provides an offset to the initial claim … . Vince’s Pizza Plus, Inc. v Dion DeFedericis, 2026 NY Slip Op 04598, Fourth Dept 7-24-26

Practice Point: New York is a “permissive counterclaim” jurisdiction. Therefore counterclaims made by a defendant in a prior action which resulted in a default judgment can be the basis of a new action brought by the defendant, now as a plaintiff, without triggering the res judicata doctrine.

 

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THE POLICE HAD PROBABLE CAUSE TO ARREST THE DEFENDANT, WITHOUT A WARRANT, THREE DAYS AFTER THE SHOOTING, BASED UPON THEIR INVESTIGATION WHICH INCLUDED VIEWING VIDEO SURVEILLANCE TAPES; AN ARREST IN A PUBLIC HALLWAY OF AN APARTMENT BUILDING DOES NOT VIOLATE “PAYTON;” TWO DISSENTERS WOULD HAVE AFFIRMED COUNTY COURT’S RULING THAT THE POLICE DID NOT HAVE PROBABLE CAUSE (FOURTH DEPT).

The Fourth Department, reversing County Court’s suppression of a handgun, over a two-justice dissent, determined the police had probable cause to arrest the defendant without a warrant based upon video evidence showing the defendant entering the victim’s apartment with the victim, showing the defendant leaving the apartment and demonstrating no one else entered the apartment during the relevant period of time (when the victim was shot).. County Court’s ruling that the arrest in the common hallway of an apartment building was a Payton violation was rejected because the defendant had no expectation of privacy there:

The police “may arrest a person without a warrant when [they] ha[ve] probable cause to believe that such person has committed a crime” … . “Probable cause ‘does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been . . . committed’ by the person arrested” … . “When determining whether the police had probable cause to arrest, the inquiry is not as to [the person’s] guilt but as to the sufficiency for arrest purposes of the grounds for the arresting officer’s belief that [the person] was guilty” … . “[T]he basis for such a belief must not only be reasonable, but it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator” … . ” ‘[T]he legal conclusion [as to whether probable cause existed] is to be made after considering all of the facts and circumstances together’ ” … . “A synoptic evaluation is essential because ‘[v]iewed singly, these may not be persuasive, yet when viewed together the puzzle may fit and probable cause found’ ” … .

… [O]n January 24, 2024, the tenant who actually rented the victim’s apartment in Jamestown found the victim deceased in the apartment and then reported the discovery to a neighbor, who then accompanied the tenant back to the apartment and called 911 to report the discovery of the victim’s body. The police thereafter discovered that the victim had sustained a fatal gunshot wound to the back of the head. As of that day and into the next, the murder weapon had not been located. During their investigation into the homicide, the police obtained security footage that depicted the hallway outside of the victim’s apartment. The security footage showed the victim and another male entering the victim’s apartment on January 22, 2024, but only the yet-to-be-identified male left the victim’s apartment later that same day. The investigative section commander with the investigating police department testified that, after obtaining a still photograph from the security footage and conducting further investigation, the police determined that defendant was the other male shown entering the apartment with the victim on January 22, 2024. Indeed, another officer recognized the other male—defendant—as the same person with whom he had a brief street encounter on January 22, 2024 in an alleyway on the backside of the victim’s apartment complex, i.e., defendant’s presence at the victim’s apartment complex was independently confirmed by a law enforcement source. Notably, during the street encounter that day, defendant partially misrepresented his name by giving his middle name as his surname. The police thus developed knowledge that defendant was the other male depicted leaving the victim’s apartment that same day. Based upon the police department’s review of the relevant duration of the security footage, however, no one else, including the victim, ever exited or entered the apartment from January 22, 2024 until January 24, 2024, i.e., the day that the victim’s body was discovered and the discovery was reported to the police. People v Kadenhead, 2026 NY Slip Op 04680, Fourth Dept 7-24-26

Practice Point: Here the Fourth Department determined the police had probable cause to arrest the defendant in the hallway of his apartment building, without a warrant, three days after the shooting.​

 

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