You are here: / Fourth Department

Tag Archive for: Fourth Department

,

ALTHOUGH THE DEFENDANT WAS NOT THE PAROLE ABSCONDER FOR WHOM THE POLICE HAD AN ARREST WARRANT, THE MAJORITY DETERMINED THE PEOPLE PROVED THE POLICE REASONABLY BELIEVED DEFENDANT WAS THE PAROLE ABSCONDER WHEN THEY APPROACHED HIM, WHICH JUSTIFIED THE PURSUIT OF THE DEFENDANT; TWO DISSENTERS ARGUED THE PROOF AT THE SUPPRESSION HEARING, WHICH DID NOT INCLUDE TESTIMONY BY THE OFFICERS WHO FIRST APPROACHED DEFENDANT, DID NOT DEMONSTRATE THE POLICE REASONABLY BELIEVED DEFENDANT WAS THE SUBJECT OF THE ARREST WARRANT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the police reasonably (but erroneously) believed defendant was the parole absconder for whom they had an arrest warrant. The pursuit and arrest, based in part on observing the defendant discard an handgun, were deemed proper:

… [T]here is no dispute that the apprehension team had probable cause to arrest the parole absconder inasmuch as an arrest warrant had been issued. As for the second element, “[t]he reasonableness of the arresting officers’ conduct must be determined by considering the totality of the circumstances surrounding the arrest”… , and “great deference should be given to the determination of the suppression court, which had the opportunity to observe the demeanor of the witnesses and to assess their credibility, and its factual findings should not be disturbed unless clearly erroneous” … . Even though “[f]light alone . . . is insufficient to justify [a] pursuit” … , we conclude that under the totality of the circumstances present here the arresting officer’s testimony establishes that he reasonably believed that defendant was the absconder when he initiated his pursuit. Defendant closely matched the height and weight provided in the parole absconder’s description, covered his face with a ski mask, was in the location provided by the absconder’s girlfriend, and immediately fled upon being approached by one of the apprehension team’s unmarked vehicles. Inasmuch as the initial pursuit and subsequent arrest of defendant—which occurred after he was observed holding and then discarding a handgun—were lawful, the court did not err in refusing to suppress the physical evidence recovered during the post-arrest search of defendant and the surrounding area … .

From the dissent:

In our view, however, it does not appear that the pursuing officers had even a subjectively reasonable belief that defendant was the parolee for whom they had an arrest warrant. Indeed, the People, who are “put to the burden of going forward to show the legality of the police conduct in the first instance” … , failed to adduce anything other than that defendant matched the generic height and weight of the average male in the general population. Notably, the People failed to call the approaching officers, and thus adduced no testimony with respect to their actions, observations, or whether they believed—reasonably or not—that defendant was the parole absconder, particularly in the absence of any evidence that they chased defendant when he fled.

The officers who did testify at the suppression hearing—the pursuing officers—testified simply that defendant roughly matched the height and weight of the parolee and that he fled. As set forth above, the pursuing officers did not testify that the approaching officers gave chase when defendant fled. Coupled with the pursuing officer’s testimony that at the point when defendant fled, he was “free to leave,” the record at the suppression hearing undercuts any possible claim that the pursuing officers were not simply chasing a man who fled, but that they actually believed defendant to be the parolee for whom they had an arrest warrant. People v Jones, 2025 NY Slip Op 01524, Fourth Dept 3-14-25

Practice Point: Consult this decision for insight into the validity of an arrest of the “wrong person,” i.e., the approach, pursuit and arrest of one person based upon an arrest warrant for issued for another.

 

,

THE MAJORITY CONCLUDED THE HEARSAY ALLEGATIONS IN THE SEARCH WARRANT APPLICATION PROVIDED PROBABLE CAUSE TO SEARCH TWO DIFFERENT RESIDENCES; THE TWO-JUSTICE DISSENT ARGUED THE APPLICATION DID NOT PROVIDE PROBABLE CAUSE TO SEARCH ONE OF THE TWO RESIDENCES, I.E., THERE WERE NO DETAILS DESCRIBING THE NARCOTICS THE INFORMANT OBSERVED IN THE RESIDENCE AND NO INDICATION WHEN THE OBSERVATON WAS MADE (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the hearsay allegations in the search warrant application were sufficient to provide probable cause to search two different residences. The two dissenting justices agued that the search warrant application focused on one residence and barely mentioned the other:

From the dissent:

Here, the warrant application in question concerned two addresses, i.e., 205 Curtis Street and 215 Curtis Street, but contained a mere two statements based on the confidential informant’s claimed knowledge regarding 205 Curtis Street. Specifically, it stated that “[t]he [confidential informant] has been inside 205 Curtis St[reet] on multiple occasions and is aware that narcotics are kept inside the location,” and that “[t]he [confidential informant] . . . has been to 205 and 215 Curtis Street multiple times for narcotics transactions.” The remaining contents of the six-page, single-spaced warrant application focused on 215 Curtis Street.

… [W]e agree with defendant that the hearsay information regarding 205 Curtis Street does not provide the requisite basis of knowledge justifying the issuance of the search warrant for that address … . First, we note that the application neither details any transaction that occurred at 205 Curtis Street, nor specifies the type of narcotic exchanged during such transaction. Second, no time frame is provided for the hearsay statements concerning 205 Curtis Street, and it is therefore entirely possible that the unspecified drug transaction occurred years or decades ago. In fact, the warrant application entirely fails to set forth what was actually observed by the informant at 205 Curtis Street or when it was observed … . On this record, we conclude that there is no basis provided to support the informant’s claimed awareness of narcotics at 205 Curtis Street. People v Berry, 2025 NY Slip Op 01523, Fourth Dept 3-14-25

Practice Point: According to the dissent, the bare allegation the informant observed narcotics in a residence, without any detail and without any time frame, did not provide probable cause for the search of that residence.

 

,

THE COMPLAINT DID NOT SUFFICIIENTLY ALLEGE DEFENDANT ASSISTED LIVING FACILITY FUNCTIONED AS A DE FACTO RESIDENTIAL HEALTH CARE FACILITY BY PROVIDING HEALTH-RELATED SERVICES; THEREFORE THE PUBLIC HEALTH LAW CAUSES OF ACTION, AVAILABLE ONLY FOR SUITS AGAINST RESIDENTIAL HEALTH CARE FACILITIES, SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the allegations in the complaint did not sufficiently allege that defendant assisted living facility operated as a de facto residential health care facility. Therefore the Public Health Law causes of action, which are available only for suits against residential health care facilities, should have been dismissed. The concurring justices argued that the case which allowed assisted living facilities to be considered de facto residential health care facilities if they provide health-related services should be overruled:

… Supreme Court erred in denying their motion with respect to the second and third causes of action. We have held that an assisted living facility licensed pursuant to Public Health Law article 46-B … could operate as a de facto residential health care facility subject to liability under Public Health Law article 28 if it provides health-related services (see Cunningham v Mary Agnes Manor Mgt., L.L.C., 188 AD3d 1560, 1562 [4th Dept …]. We conclude that, unlike the complaint in Cunningham, the complaint here failed to “sufficiently allege[ ] facts to overcome defendants’ argument that the facility is an assisted living facility and not subject to . . . sections [2801-d and 2803-c] of the Public Health Law” … .

From the concurrence:

… [W]e would overrule our prior decision in Cunningham to the extent that it authorizes a cause of action under article 28 of the Public Health Law against an assisted living facility indisputably licensed pursuant to article 46-B of the Public Health Law … . Kingston v Tennyson Ct., 2025 NY Slip Op 01522, Fourth Dept 3-14-25

Practice Point: Private causes of action pursuant to the Public Health Law are available only for suits against residential health care facilities, and not suits against assisted living facilities. In the Fourth Department, however, the Public Health Law causes of action can be viable against an assistant living facility if the facility offers health-related services. The two concurring justices in the instant decision would overrule that “assisted living facility” caveat. which conflicts with rulings in other appellate division departments.

 

, , ,

ALTHOUGH THE DEFENDANT STATE PAROLE OFFICER WAS DRIVING A STATE-OWNED VEHICLE AND ACTING WITHIN THE SCOPE OF HER EMPLOYMENT WHEN THE TRAFFIC ACCIDENT OCCURRED, PLAINTIFF PROPERLY BROUGHT SUIT IN SUPREME COURT AS OPPOSED TO THE COURT OF CLAIMS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the Correction Law did not require that plaintiff bring this traffic accident case involving a Department of Corrections and Community Supervision (DOCCS) parole officer in the Court of Claims. Although the defendant officer was driving a State-owned vehicle and was acting within the scope of her employment at the time of the accident, the lawsuit was properly brought in Supreme Court:

“Not every suit against an officer of the State, however, is a suit against the State” … . “A suit against a State officer will be held to be one which is really asserted against the State when it arises from actions or determinations of the officer made in his or her official role and involves rights asserted, not against the officer individually, but solely against the State” … . If, however, “the suit against the State agent or officer is in tort for damages arising from the breach of a duty owed individually by such agent or officer directly to the injured party, the State is not the real party in interest—even though it could be held secondarily liable for the tortious acts under respondeat superior” … .

Correction Law § 24 (2) provides that claims for damages “arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties” of any State employee shall be brought in the Court of Claims as claims against the State. Thus, Correction Law § 24 “places actions for money damages against [DOCCS] employees within the jurisdiction of the Court of Claims only where the conduct alleged is within the scope of the officer’s employment and in the discharge of his or her official duties” … .

Here, the complaint asserts a single cause of action based on allegations that defendant operated the vehicle in a negligent manner, i.e., that defendant’s alleged negligence arises from her violation of a duty she owed plaintiff as a fellow driver, and not as a DOCCS employee. Thus, plaintiff’s action is “against . . . defendant individually for an alleged breach of a duty of care owed by the defendant directly to [plaintiff], and not one against State officers as representatives of the State in their official capacity which had to be brought in the Court of Claims pursuant to Correction Law § 24” … . Maiorana v Green, 2025 NY Slip Op 01518, Fourth Dept 12-14-25

Practice Point: Although the defendant parole officer was acting within the scope of her employment when she was driving the state-owned vehicle, the traffic accident allegedly breached a duty of care owed directly to the plaintiff by the defendant as a fellow driver, not as a state employee.

 

,

FATHER’S RIGHT TO FILE FUTURE PETITIONS FOR MODIFICATION OF CUSTODY SHOULD NOT HAVE BEEN CONDITIONED ON MENTAL HEALTH TREATMENT; RATHER THE TREATMENT SHOULD BE A CONDITION FOR SUPERVISED VISITATION (FOURTH DEPT).

The Fourth Department noted that father’s right to file future modification-of-custody petitions should not have been conditioned upon mental health treatment:

“It is well established that a court lacks authority to condition any future application for modification of a parent’s [custody or] visitation on [that parent’s] participation in mental health treatment” … . We therefore modify the order … by striking the provision requiring that the father submit proof that he is engaged in and compliant with mental health counseling with a psychiatrist as a prerequisite to filing a modification petition and providing instead that the father comply with that condition as a component of supervised visitation … . Matter of Shakema R. v Mesha B., 2025 NY Slip Op 01512, Fourth Dept 3-14-25

Practice Point: It is not OK for a judge to condition a party’s ability to file future petitions for modification of custody upon mental health treatment. However treatment can be made a condition for supervised visitation.

 

,

ASSAULT THIRD IS AN INCLUSORY CONCURRENT COUNT OF ASSAULT SECOND; THE ASSAULT THIRD CONVICTION REVERSED AND THE COUNT DISMISSED; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL (FOURTH DEPT). ​

The Fourth Department determined the assault third conviction must be reverses as an inclusory concurrent count of the assault second degree conviction. The issue need not be preserved for appeal:

… [A]ssault in the third degree is an inclusory concurrent count of assault in the second degree … . Thus, that part of the judgment convicting defendant of assault in the third degree must be reversed and count 2 of the indictment dismissed … , and we therefore modify the judgment accordingly. Contrary to the People’s contention, preservation of this issue is not required … . People v Niles, 2025 NY Slip Op 01502, Fourth Dept 3-14-25

Practice Point: Assault third is an inclusory concurrent count of assault second. A defendant cannot stand convicted of both. The issue can be raised for the first time on appeal.

 

, , , ,

THERE WAS NO EVIDENCE SUBSTANTIATING THE PURPORTED “OFF THE RECORD” STIPULATION OF SETTLEMENT; THE TERMS OF THE SETTLEMENT AGREEMENT WERE NEVER FILED WITH THE COUNTY CLERK; A PRETRIAL CONFERENCE WITH THE JUDGE’S CLERK DOES NOT MEET THE “OPEN COURT” REQUIREMENT FOR A STIPULATION OF SETTLEMENT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the purported stipulation of settlement of this legal malpractice action did not meet the requisite criteria and could not be enforced:

It is well settled that ” ‘[a]n oral stipulation of settlement that is made in open court and stenographically recorded is enforceable as a contract and is governed by general contract principles for its interpretation and effect’ ” (… see generally CPLR 2104). Here, however, in support of her cross-motion, plaintiff failed to attach any transcripts or other evidence substantiating the purported settlement agreement. Indeed, we conclude that “[t]he record provides no basis for concluding that an enforceable stipulation was entered into between the parties” inasmuch as “[p]ertinent discussions took place off the record” … . Plaintiff also failed to establish that the terms of the settlement agreement were ever filed with the county clerk (see CPLR 2104 …).

Even if plaintiff had submitted written evidence of the parties’ purported stipulation of settlement, we conclude that said stipulation was not entered in “open court” inasmuch as there is no dispute that the alleged settlement was reached during a pretrial conference with the court’s law clerk … . Indeed, the “open court requirement . . . is not satisfied in locations without a Justice presiding . . . , and it is not satisfied during less formal stages of litigation, such as a pretrial conference” … . Guzman-Martinez v Rosado, 2025 NY Slip Op 01483, Fourth Dept 3-14-25

Practice Point: Consult this decision for the criteria for an enforceable stipulation of settlement, i.e., a transcript or other evidence of the terms of any oral agreement, the filing of the terms of the agreement with the county clerk, and the entering of the agreement in open court with a judge presiding.

 

, ,

THE OFFICER’S TESTIMONY HE COULD NOT SEE INSIDE THE CAR FROM A DISTANCE OF 10 TO 15 FEET PROVIDED PROBABLE CAUSE TO STOP THE CAR FOR A “TINTED WINDOWS” VIOLATION; THE DISSENT ARGUED IT WAS DARK AT THE TIME OF THE STOP AND THE OFFICER DID NOT LINK HIS INABILITY TO SEE INSIDE THE CAR TO THE TINTED WINDOWS AS OPPOSED TO THE AMBIENT DARKNESS (FOURTH DEPT). ​

The Fourth Department, affirming County Court, over a dissent, determined the officer’s testimony he could not see the driver’s face from a distance of 10 to 15 feet demonstrated probable cause of a “tinted window” violation which supported the vehicle stop. The dissent argued the officer’s testimony was insufficient to demonstrate probable cause because it was dark at the time of the stop and the officer did not link his inability to see inside the car to the tinted windows, as opposed to the ambient darkness:

Here, the officer who initiated the stop testified at the suppression hearing that he looked directly at the driver’s side window of the vehicle defendant was operating, that he did so from a distance of no more than 10 to 15 feet, and that he was “unable to see the driver of the vehicle” through the window. We conclude that the officer’s testimony contained sufficient facts to establish that he reasonably believed that the windows were excessively tinted in violation of Vehicle and Traffic Law § 375 (12-a) (b) (2) … .

From the dissent:

The officer who attempted to initiate the stop of defendant’s vehicle testified that he believed any level of tint on the front driver’s side window or the front passenger window would be illegal and that the actual tint on the vehicle’s windows was never tested with a tint meter. He further testified that he initially observed the vehicle when it was dark outside and that he was unable to see the driver inside the vehicle. At no point did the officer testify that it was the window tint, as opposed to the ambient darkness, that prevented him from seeing the driver. The officer’s failure to link the allegedly excessive tint with his inability to see into the vehicle distinguishes this case from those cited by the majority, in which the arresting officer “testified at the suppression hearing that he could tell the window tints were too dark because he could not see into the [vehicle]” … or “specifically testified that the driver’s side windows were ‘so dark that [he] was unable to actually see the operator of the vehicle as the vehicle was going by’ ” … . Because the officer’s testimony here failed to link his conclusory belief that the windows were excessively tinted with an objective fact in support of that belief, I conclude that the People failed to meet their burden … . People v Hall, 2025 NY Slip Op 01457, Fourth Dept 3-14-25

Practice Point: Consult this decision for some insight into the proof required for a valid “tinted-windows-violation” traffic stop.

 

, , ,

THE JUDGE SHOULD NOT HAVE CONSIDERED A NEW ARGUMENT RAISED FIRST IN REPLY; THE HOLDER OF AN EASEMENT OVER THE PARKING LOT, NOT THE OWNER OF THE PARKING LOT, IS PRIMARILY RESPONSIBLE FOR KEEPING THE LOT FREE OF ICE AND SNOW, NOTWITHSTANDING AN AGREEMENT BETWEEN THE EASEMENT HOLDER AND THE OWNER IN WHICH THE OWNER AGREED TO REMOVE ICE AND SNOW (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this slip and fall case, determined (1) Supreme Court should not have considered a new argument raised for the first time in reply, and (2) defendant, as the holder of an easement over the parking lot, was primarily responsible for keeping the lot free of ice and snow, notwithstanding the terms of a “parking agreement” between defendant and the owner of the lot in which the owner agreed to remove ice and snow from the lot:

… [T]he court improperly granted the motion based on an argument advanced for the first time in reply [i.e., the existence of the “parking agreement”]. The function of reply papers is “to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds [or evidence] for the motion” … . * * *

We agree with the Second Circuit Court of Appeals that the duty of an easement holder “is the same as that owed by a landowner” and is nondelegable (Sutera v Go Jokir, Inc., 86 F3d 298, 308 [2d Cir 1996] …). We therefore conclude that defendant’s “duty to exercise reasonable care toward third parties making use of the parking lot subject to the easement, once established, is not abrogated by a covenant on the part of the servient owner[, i.e., the nonparty owner of 875 East Main Street,] to clear ice and snow from the lot. The general rule that a servient owner may assume duties of maintenance, while undoubtedly relevant as between dominant and servient owners, does not apply when the rights of injured third parties are implicated,” as in the case here … . The fact that the nonparty owner of 875 East Main Street may also have had a duty to maintain the parking lot does not serve to insulate defendant from liability to plaintiff. Otero v Rochester Broadway Theatre League, Inc., 2025 NY Slip Op 00769, Fourth Dept 2-7-25

Practice Point: An argument based on new evidence first presented in reply should not have been considered by the court.​

Practice Point: Here the holder of the easement over the parking lot, as opposed to the owner of the parking lot, was primarily responsible for the removal of ice and snow.

 

 

,

COUNTY COURT PROPERLY GRANTED THE PEOPLE’S REQUEST TO PREVENT REMOVAL OF DEFENDANT’S CASE TO FAMILY COURT UNDER THE “RAISE THE AGE ACT;” THERE WAS A COMPREHENSIVE DISSENT (FOURTH DEPT).

The Fourth Department, over a comprehensive dissent, determined County Court properly granted the People’s motion to prevent removal of defendant’s case to Family Court pursuant to the Raise the Age Law:

In 2017, the New York State Legislature enacted the Raise the Age Law, which defines a person who was charged with a felony committed on or after October 1, 2018 when the person was 16 years old, or committed on or after October 1, 2019 when the person was 17 years old, as an ” ‘[a]dolescent offender’ ” … . The Raise the Age Law created in each county a youth part of the superior court to make appropriate determinations with respect to the cases of, inter alia, adolescent offenders … . Where, as here, an adolescent offender is charged with a violent felony as defined in Penal Law § 70.02, within six calendar days of the adolescent offender’s arraignment, the youth part of superior court is required to review the accusatory instrument and determine whether the prosecutor has proven by a preponderance of the evidence that the adolescent offender caused “significant physical injury” to someone other than a participant in the crime, displayed a “firearm, shotgun, rifle or deadly weapon as defined in the penal law” in furtherance of the crime, or unlawfully engaged in sexual intercourse, oral sexual conduct, anal sexual conduct or sexual contact as defined in section 130.00 of the Penal Law … . If none of those factors exist, the matter must be transferred to Family Court unless the prosecutor moves to prevent the transfer of the action to Family Court and establishes that extraordinary circumstances exist … . … [I]n making an extraordinary circumstances determination, courts should “look at all the circumstances of the case, as well as . . . all of the circumstances of the young person,” … . …

… [T]he court did not abuse its discretion in granting the prosecutor’s motion to prevent removal inasmuch as the prosecutor established that there are extraordinary circumstances. … [D]efendant’s prior adjudications as a juvenile delinquent or any evidence obtained as a result of those proceedings cannot be used in determining whether to grant the People’s motion (Family Ct Act § 381.2 [2] …).. Nevertheless, although it is impermissible to raise any issue related to the adjudication or evidence obtained therefrom, it is still permissible to raise ” ‘the illegal or immoral acts underlying such adjudications’ ” … .

Here … defendant was charged with participating in a violent crime, i.e., a home invasion robbery involving weapons and resulting in injuries to the victim. Moreover, despite the various services and programs provided to defendant over the last five years while defendant had been involved in the criminal justice system, defendant has made no appreciable positive response and continues to engage in escalating criminal behavior. People v Guerrero, 2025 NY Slip Op 00766, Fourth Dept 2-7-25

Practice Point: Under the “Raise the Age Act” the People can move to prevent the transfer of felony cases to Family Court where the defendant was 16 or 17 at the time of the alleged offense.

 

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