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THE FAILURE TO COMPLY WITH THE CONDITIONS PRECEDENT IN CPLR 3216 PRECLUDED DISMSSAL OF THE COMPLAINT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the failure to comply with the requirements of CPLR 3216 precluded the dismissal of the complaint:

… [A]bsent strict compliance with the conditions precedent to dismissal set forth in CPLR 3216 (b) (3), “[n]o dismissal shall be directed” … . Indeed, “[t]he conditions precedent to bringing a motion to dismiss for failure to prosecute under CPLR 3216 must be complied with strictly” … .

Among those conditions precedent are the service of a ninety-day demand to resume prosecution, by registered or certified mail, which specifically states that the failure to file the note of issue within ninety days will serve as a basis for a motion to dismiss for want of prosecution … . Where the ninety-day demand is served by the court, the demand shall also “set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” … .

Here, the court did not serve a ninety-day demand upon plaintiff, and for that reason alone, the court erred in directing dismissal pursuant to CPLR 3216. Even assuming, arguendo, that the court’s second supplemental scheduling order could serve as the substitute for a ninety-day demand, that scheduling order did not indicate that dismissal would result if plaintiff failed to file the note of issue, nor did it set forth the specific conduct constituting plaintiff’s neglect … . “While an order may have the same effect as a valid 90-day demand, that order must advise as to the consequences for failing to comply, i.e., dismissal of the complaint” … , and here, the order wholly failed to do so. Woloszuk v Logan-Young, 2025 NY Slip Op 02444, Fourth Dept 4-25-25

Practice Point: The conditions precedent for dismissal of a complaint in CPRL 3216 must be strictly complied with by the judge or reversal is mandatory.

 

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ALTHOUGH ALL JUSTICES AGREED THE CERTIFICATE OF COMPLIANCE WAS NOT ILLUSORY, THE CONCURRENCE ARGUED THE PEOPLE SHOULD HAVE ASCERTAINED THE NAMES OF WITNESSES CAPTURED ON A VIDEO (FOURTH DEPT).

The Fourth Department determined the People’s certificate of compliance (COC) was not illusory and, therefore, the speedy trial statute was not violated. The concurrence agreed the COC was not illusory, but argued the People should have ascertained and turned over the names of witnesses which were depicted in a video:

… [W]ith respect to defendant’s claim that the People failed to turn over the names and contact information of several witnesses who were depicted on surveillance footage inside the convenience store when defendant was arrested, CPL 245.20 (1) (c) provides in relevant part that the People are required to disclose “[t]he names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any potential defense thereto.” The People are not, however, required “to ascertain the existence of witnesses not known to the police or another law enforcement agency” … . The record shows that the People did not know or have in their possession the names of those witnesses with the exception of one witness whose name they learned just prior to the scheduled trial. The court thus properly determined that the People exercised due diligence and made reasonable efforts to ascertain the existence of the discovery materials … .

From the concurrence (Justice Whalen):

I respectfully disagree with the majority’s conclusion that the People had no obligation to make reasonable inquiries to ascertain the names and contact information of several witnesses who were depicted on surveillance footage inside the convenience store when defendant was arrested. Although the People are not required to “ascertain the existence of witnesses” not known to law enforcement … , here the record establishes that, at the time their discovery obligation under CPL article 245 arose, the People possessed knowledge that several of the witnesses depicted on the surveillance footage had “evidence or information relevant to any offense charged” … . Specifically, the People possessed the statements of the store owner and the victim, as well as the police report from the arresting officer, each of which reflects that just prior to defendant’s arrest, the depicted store employees tackled defendant to the ground, locked the door, and waited for police to arrive. Inasmuch as there is no plausible argument that the store employees who held defendant down after an attempted robbery did not “have evidence or information relevant to any offense charged” … , the People were obligated to “make a diligent, good faith effort to ascertain” … the “names and adequate contact information for [those] persons” … . In my opinion, the majority, in concluding otherwise, is conflating the statutory requirement that the People possess knowledge of the “existence of witnesses” … with knowledge of the names of witnesses. People v Burrows, 2025 NY Slip Op 02436, Fourth Dept 4-25-25

Practice Point: The concurrence argued the majority conflated the fact that the People need not ascertain the existence of witnesses they are not aware of with the obligation to ascertain the names of witnesses of which the People are aware.

 

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CONFLICTING EVIDENCE RAISED QUESTIONS OF FACT IN THIS “NEGLIGENT USE OF EXCESSIVE FORCE,” “FALSE ARREST,” AND “UNLAWFUL IMPRISONMENT” ACTION STEMMING FROM THE STREET STOP, SHOOTING AND ARREST OF THE PLAINTIFF; THE DEFENDANT TRANSIT AUTHORITY’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined conflicting evidence precluded summary judgment in this civil action stemming from the street stop and arrest of the plaintiff. Although plaintiff pled guilty, which usually forecloses any argument that the arrest was not supported by probable cause, here evidence submitted the defendant transit authority raised a question of fact about probable cause. The action alleged the negligent use of excessive force (plaintiff was shot through the windshield of his vehicle), false arrest and unlawful imprisonment:

Excessive force claims are evaluated ” ‘under the Fourth Amendment’s “objective reasonableness” standard’ ” … . * * *

“Because of its intensely factual nature, the question of whether the use of force was reasonable under the circumstances is generally best left for a jury to decide” … .

” ‘The fact that a person whom a police officer attempts to arrest resists, threatens, or assaults the officer no doubt justifies the officer’s use of some degree of force, but it does not give the officer license to use force without limit. The force used by the officer must be reasonably related to the nature of the resistance and the force used, threatened, or reasonably perceived to be threatened, against the officer’ ” … . …

Though “[t]he existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the [false imprisonment cause of action]” … , the issue of probable cause is “generally a question of fact to be decided by the jury, and should ‘be decided by the court only where there is no real dispute as to the facts or the proper inferences to be drawn surrounding the arrest’ ” … . Thomas v Niagara Frontier Tr. Auth., 2025 NY Slip Op 02433, Fourth Dept 4-25-25

Practice Point: Consult this decision for an analysis of “negligent use of excessive force,” “false arrest,” and “unlawful imprisonment” causes of action at the summary-judgment stage, in the face of conflicting evidence.​

 

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HERE THE FOURTH DEPARTMENT HAD ORDERED A RECONSTRUCTION HEARING BECAUSE THE ORIGINAL RECORD WAS WOEFULLY INCOMPLETE; THE MAJORITY CONCLUDED THE RECONSTRUCTION HEARING WAS PROPERLY DONE AND AFFIRMED DEFENDANT’S CONVICTION; THE DISSENT TOOK ISSUE WITH NATURE OF THE RECONSTRUCTION HEARING (FOURTH DEPT).

The Fourth Department, affirming defendant’s conviction over a dissent, determined the reconstruction hearing compelled by the incomplete original record was properly done. The dissent disagreed:

We … reserved decision … and remitted the matter to County Court “to conduct a reconstruction hearing with respect to the missing and irregular transcripts” … .

Upon remittal, the court conducted a reconstruction hearing during which it heard the testimony of the trial judge and his confidential law clerk, the trial prosecutor, defendant’s former attorneys, a court clerk, and a county clerk. The court also admitted in evidence the trial judge’s notes; the court’s voir dire challenge sheet; the trial prosecutor’s notes on the jury charge and his copy of the verdict sheet; the court clerk’s minutes, exhibit list, and witness list; the county clerk’s case summary; and various court exhibits from the trial. Based on the record of the reconstruction hearing and the original record, we now affirm.

From the dissent:

Upon remittal, the court convened a reconstruction hearing without expressly delineating the missing and irregular transcripts to be reconstructed. Instead, the court heard the testimony of witnesses offered by the People and closed the hearing without determining whether the evidence submitted was sufficient to reconstruct a record that would permit defendant to review “whether genuine appealable and reviewable [trial] issues do or do not exist” … . That was error. Although the reconstruction required by the substantial irregularities in this trial transcript was considerably broader than the discrete issues for which reconstruction is more frequently directed … , the intent of our prior decision was for the court to make a determination whether the missing and irregular transcripts were sufficiently reconstructed, not merely to assist in the marshaling of evidence from which this Court could reconstruct the trial record behind closed doors … . People v Meyers, 2025 NY Slip Op 01762, Fourth Dept 3-21-25

Practice Point: Consult this decision for the issues raised, and the procedures to be followed, when the original record is too incomplete to allow an appellate review.

 

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PLAINTIFF ALLEGED DEFENDANT HOSPITAL WAS NEGLIGENT IN PLACING HIM IN A ROOM WITH A PERSON WITH COVID; PLAINTIFF WAS ENTITLED TO DISCOVERY OF THAT PERSON’S MEDICAL RECORDS TO DETERMINE WHEN THE HOSPITAL BECAME AWARE OF THE COVID DIAGNOSIS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff was entitled to discovery of another’s medical records. Plaintiff alleged the hospital was negligent in placing plaintiff in a room with a person with COVID. The sought medical records may reveal when the hospital became aware of the COVID diagnosis:

Although “discovery determinations rest within the sound discretion of the trial court, the Appellate Division is vested with a corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse” … . CPLR 3101 (a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” “What is material and necessary is left to the sound discretion of the lower courts and includes any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” … .

Pursuant to CPLR 4504 (a), “a person authorized to practice medicine . . . shall not be allowed to disclose any information which [they] acquired in attending a patient in a professional capacity, and which was necessary to enable [them] to act in that capacity.” The physician-patient privilege may be overcome, however, where the plaintiff establishes that the information in the medical records is material and necessary to their claim … . Here, plaintiffs established that the nonparty patient’s hospital records would show when defendant, its agents, servants and employees became aware that the patient had tested positive for COVID-19 and that such information is material and necessary to establish whether defendant had notice that it was placing plaintiff in the same room as a person who had COVID-19 … . Martin v Kaleida Health, 2025 NY Slip Op 01756, Fourth Dept 3-21-25

Practice Point: Here plaintiff was entitled to limited discovery of another’s medical records because the records were “material and necessary to the prosecution of the action.”

 

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THE JUDGE SHOULD NOT HAVE PLACED CONDITIONS ON MOTHER’S VISITATION; MATTER REMITTED FOR A SPECIFIC VISITATION SCHEDULE (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Family Court, determined the judge should not have placed conditions on mother’s visitation and remitted the matter for a visitation schedule:

We agree with the mother … that the court erred in conditioning her visitation upon either her participation in domestic violence counseling or that she no longer reside with her husband … . We therefore modify the order accordingly, and we remit the matter to Family Court to fashion a specific and definitive schedule for visitation, if any, between the mother and the children. Matter of Seeley-Sick v Allison, 2025 NY Slip Op 01747, Fourth Dept 3-21-25

Practice Point: Conditioning mother’s visitation on domestic violence counseling or on no longer resided wither her husband was deemed improper. Mother was entitled to a specific visitation schedule.​

 

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IN THIS STRANGULATION CASE, A POLICE OFFICER’S TESTIMONY ABOUT UNRELATED ALLEGED STRANGULATIONS INVOLVING OTHER COMPLAINANT’S DEPRIVED DEFENDANT OF A FAIR TRIAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s strangulation conviction and ordering a new trial, determined the admission of the testimony of a police officer describing unrelated allegations of strangulation by other complainants deprived defendant of a fair trial:

… County Court erred in admitting in evidence testimony from a police officer who responded to the scene regarding his observations of other, unnamed complainants in prior, unspecified cases. The officer was permitted to testify that he had taken photographs “once or twice” of complainants who had “alleged strangulations,” and that he could not recall having observed bruises on those other complainants. The officer’s testimony was used by the People in order to explain that the lack of marks on the neck of the victim in the present case did not mean that defendant did not strangle her. Indeed, during closing argument the People invited the jury to “recall the testimony of [the officer], that he did not observe any signs of bruising on [the victim’s] neck. You’ll also recall that he has been to other strangulations and investigated those, and he didn’t find any injuries there either.” We conclude that the officer’s testimony regarding prior, unrelated cases is entirely irrelevant to the instant case, and that it was error to admit that “irrelevant and highly prejudicial testimony” … . People v Iqbal, 2025 NY Slip Op 01746, Fourth Dept 3-21-25

Practice Point: Here a police officer’s vague testimony about unrelated allegations of strangulation involving complainants other than the victim in this strangulation case deprived defendant of a fair trial.

 

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PRIVATE MESSAGES SENT BY THE JUVENILE DID NOT MEET THE CRITERIA FOR A “TERRORISTIC THREAT” (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the messages sent by the juvenile did not meet the criteria for a terroristic threat:

… [A] person is guilty of making a terroristic threat when “with intent to intimidate or coerce a civilian population . . . [they] threaten[ ] to commit or cause to be committed a specified offense and thereby cause[ ] a reasonable expectation or fear of the imminent commission of such offense” (Penal Law § 490.20 [1]). Here, petitioner presented testimony that respondent sent private messages to another student in a different school district that respondent was planning to commit a mass shooting to end bullying in his school. There was no evidence that those threats were made to anyone other than the student or that respondent requested that the student relay the threats to others. “A private conversation between immature teenage friends, without more, does not establish the element of intent to intimidate a civilian population” … . Matter of Jose M.F. (Seneca County Presentment Agency), 2025 NY Slip Op 01734, Fourth Dept 3-21-25

Practice Point: Threatening to commit a mass shooting to end school bullying in a private message to another student does not satisfy the criteria for a “terroristic threat.”

 

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THE COMPLAINT STATED CAUSES OF ACTION FOR DAMAGES STEMMING FROM THE ALLEGED FAILURE TO RETURN PLAINTIFF’S TESLA TO ITS PRE-ACCIDENT CONDITION AND THE ALLEGED FAILURE TO PROVIDE PLAINTIFF WITH COMPARABLE TRANSPORTATION WHILE THE TESLA WAS BEING REPAIRED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the complaint stated causes of action for damages relating to the alleged failure to restore plaintiff’s Tesla to its pre-accident condition and damages relating to the alleged failure to provide plaintiff with comparable transporting while the Tesla was repaired:

We agree with plaintiff … that the court erred in granting defendant’s motion for summary judgment dismissing the complaint. In support of his motion, defendant offered no proof establishing as a matter of law that the repairs to plaintiff’s vehicle restored the vehicle to its pre-accident condition. Defendant relied largely on an affirmation from his attorney, who has no personal knowledge of the facts, along with plaintiff’s deposition testimony. Although defendant contends that plaintiff admitted during his deposition that the repairs to his vehicle were done to his satisfaction, plaintiff made clear during his testimony that, due to the gaps in the paneling, the vehicle was not in the same condition as before the accident. Defendant offered no evidence to the contrary, and it is well established that a party moving for summary judgment “must affirmatively establish the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent’s proof” … .

… [W]ith respect to the loss of use cause of action, defendant merely asserted that plaintiff was not entitled to the use of a vehicle comparable to his Tesla while the Tesla was being repaired. According to defendant, any operable vehicle will suffice regardless of its make, model, size, or safety features. We agree with plaintiff … that he is entitled to damages to the extent that he was not provided with the use of a vehicle generally comparable to his Tesla Model 3 … . Hazlett v Niezgoda, 2025 NY Slip Op 01730, Fourth Dept 3-21-25

Practice Point: A plaintiff can seek damages for the failure to return a vehicle to its pre-accident condition and the failure to provide plaintiff with comparable transportation during the repair-period.

 

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A MEDICAL CORPORATION CAN BE LIABLE IN TORT FOR FAILURE TO SAFEGUARD THE CONFIDENTIALITY OF MEDICAL RECORDS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the complaint against defendant medical corporations stated a cause of action for negligent failure to safeguard the confidentiality of medical records:

Plaintiffs commenced this action alleging that, attendant to the health care services they received from defendant Rochester General Hospital (RGH), confidential medical records were generated and that those confidential medical records were stored on computer systems and networks maintained by RGH and defendants Rochester Regional Health ACO, Inc. (RRH) and Greater Rochester Independent Practice Association, Inc. (GRIPA). Plaintiffs further allege that defendant Christine M. Smith, R.N., a nurse at RGH, impermissibly accessed those records due to the failure of RGH, RRH and GRIPA “to exercise reasonable care in obtaining, retaining, securing, safeguarding, and protecting this confidential medical information from unlawful access.”

“A medical corporation may . . . be liable in tort for failing to establish adequate policies and procedures to safeguard the confidentiality of patient information or to train their employees to properly discharge their duties under those policies and procedures. These potential claims provide the requisite incentive for medical providers to put in place appropriate safeguards to ensure protection of a patient’s confidential information” … . Here, plaintiffs alleged that defendants generated and maintained the medical records that Smith impermissibly accessed and that they breached their duty to properly safeguard or monitor access to those records. Accepting as true the allegations in the complaint and the averments in the affidavits submitted in opposition to the motion, we conclude that plaintiffs have sufficiently alleged a negligence claim. * * * Hurley v Rochester Regional Health Aco, Inc., 2025 NY Slip Op 01729, Fourth Dept 3-21-25

Practice Point: A medical corporation can be liable for failure to safeguard the confidentiality of medical records.

 

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