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THE FACT THAT PLAINTIFF SLIPPED AND FELL ON “BLACK ICE” DOES NOT SUPPORT THE CONCLUSION THE ICE WAS NOT VISIBLE; THIS SLIP AND FALL COMPLAINT SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND DEFENDANT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court in this slip and fall case, determined there was a question of fact whether the “black ice” in the parking lot was visible such that defendant had constructive notice of its presence:

“To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [a] defendant’s employees to discover and remedy it” … . In moving for summary judgment, defendants argued, and the court agreed, that they did not have constructive notice inasmuch as plaintiff slipped on black ice and thus the icy condition was not visible and apparent. Although plaintiff allegedly slipped on black ice, “that fact alone does not establish as a matter of law that the ice was not visible and apparent” … . Moreover, the fact that plaintiff did not see the ice before she fell is not dispositive of whether the condition was visible and apparent … . Here, defendants submitted excerpts from plaintiff’s deposition where she described the ice, as she observed it after she fell, as “[a] wide circle” and “a big patch” that “was the same color as the ground” and not shiny. We conclude that defendants failed to meet their initial burden of establishing as a matter of law that the icy condition was not visible and apparent … . Doyle v Tops Mkts., LLC, 2025 NY Slip Op 00577, Fourth Dept 1-31-25

Practice Point: Black ice is not invisible as a matter of law.​

 

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HEARSAY ALONE IS NOT ENOUGH TO SUPPORT REVOCATION OF PROBATION (FOURTH DEPT).

The Fourth Department, vacating the declaration of delinquency, determined the hearsay testimony of a police investigation was not sufficient to prove defendant violated the terms and conditions of a probationary sentence:

… [T]he evidence at the hearing that he committed a criminal offense while on probation consisted entirely of hearsay testimony from a police investigator. “While hearsay is admissible at a probation revocation hearing, hearsay alone does not satisfy the requirement that a finding of a probation violation must be based upon a preponderance of the evidence” … . Based on this record, we conclude that County Court’s determination “was based on hearsay alone and therefore cannot stand” … . People v Hawkey, 2025 NY Slip Op 00569, Fourth Dept 1-31-25

Practice Point: Hearsay is admissible at a probation revocation hearing, but hearsay alone will not support revocation.

 

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THE JUDGE’S FAILURE TO GIVE THE CIRCUMSTANTIAL-EVIDENCE JURY INSTRUCTION IN THIS ARSON/MURDER CASE REQUIRED REVERSAL AND A NEW TRIAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s arson, murder and reckless endangerment convictions, determined the trial judge should have given the circumstantial evidence instruction to the jury:

“It is well settled that a trial court must grant a defendant’s request for a circumstantial evidence charge when the proof of the defendant’s guilt rests solely on circumstantial evidence . . . By contrast, where there is both direct and circumstantial evidence of the defendant’s guilt, such a charge need not be given” … . …[T]his was not a case with ” ‘both direct and circumstantial evidence of . . . defendant’s guilt,’ ” which would negate the need for a circumstantial evidence charge … . Indeed, none of the evidence presented at trial “prove[d] directly a disputed fact without requiring an inference to be made” … .

Further, this is not “the exceptional case where the failure to give the circumstantial evidence charge was harmless error” … . Although ” ‘overwhelming proof of guilt’ cannot be defined with mathematical precision” … , it necessarily requires more evidence of guilt than proof beyond a reasonable doubt. If that were not so, all errors would be harmless in cases where the verdict is not against the weight of the evidence … .

Here, the strongest evidence linking defendant to the crime is the video surveillance recording. As noted, that video, which is grainy and shot from a distance, depicts a flickering or glow as defendant exits the premises, which promptly grows into a blaze as defendant walks away. There is no way to discern from the video the exact moment that the fire is set or precisely how the fire began. “In order for the jury to find defendant guilty it had to make a number of logical leaps connecting defendant to the crimes charged. Had the trial court given the circumstantial evidence charge, alerting the jury of the need to exclude to a moral certainty every other reasonable hypothesis of innocence,” we conclude that the verdict may have been different … . People v Exford, 2025 NY Slip Op 00536, Fourth Dept 1-30-25

Practice Point: In this arson and murder case, the failure to give the circumstantial-evidence jury instruction warranted a new trial. The jury was required to make several “logical leaps,” based upon grainy video evidence showing defendant walking away from a building which caught fire, to convict.

 

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PLAINTIFF WAS REPAIRING THE FLASHING ON THE ROOF, NOT DOING ROUTINE MAINTENANCE, AT THE TIME HE WAS INJURED ENTITLING HIM TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff was performing repairs, not routine maintenance, when he was injured, entitling him to summary judgment on the Labor Law 240(1) cause of action:

“Delineating between routine maintenance and repairs is frequently a close, fact-driven issue . . . , and that distinction depends upon whether the item being worked on was inoperable or malfunctioning prior to the commencement of the work . . . , and whether the work involved the replacement of components damaged by normal wear and tear” … . Here, the testimony submitted by plaintiffs established, and the court found, that the rubber flashing was malfunctioning and inoperable prior to replacement and that the work being performed by plaintiff at the time of the accident was necessary to restore the proper functioning of the roof. To the extent that defendant asserts that the flashing plaintiff was repairing at the time of his fall was not actively leaking, such a contention is immaterial to whether plaintiff was performing a protected activity, inasmuch as it would be “[in]consistent with the spirit of the [Labor Law] to isolate the moment of injury and ignore the general context of the work” … .

Further, contrary to the court’s determination, we agree with plaintiffs that the rubber flashing was not merely a “component” of a ventilation system and instead was an integral part of a proper functioning roof. Here, plaintiff was performing roofing repair to ensure that the roof of the concession stand was no longer leaking—precisely the type of work that we have long held to be protected by Labor Law § 240 (1) … . Verhoef v Dean, 2024 NY Slip Op 06465, Fourth Dept 12-20-24

Practice Point: Here plaintiff was repairing the roof when he was injured. He was not performing routine maintenance. He was therefore entitled to summary judgment on the Labor Law 240(1) cause of action.

 

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THE COMPLAINT AGAINST ATTORNEYS STATED A CAUSE OF ACTION FOR “DECEIT AND COLLUSION” PURSUANT TO JUDICIARY LAW 487 WHICH IS NOT THE SAME AS COMMON LAW FRAUD; THERE IS NO NEED TO SHOW A PARTY WAS MISLED BY THE ATTORNEY’S INTENTIONAL FALSE STATEMENTS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the complaint stated a cause of action against an attorney (Moore) for “deceit and collusion” within the meaning of Judiciary Law 487:

Judiciary Law § 487 provides, in pertinent part, that “[a]n attorney or counselor who . . . [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party . . . [i]s guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.” In essence, the statute “imposes liability for the making of false statements with scienter” … . However, “Judiciary Law § 487 is not a codification of common-law fraud and therefore does not require a showing of justifiable reliance” … . Stated another way, “liability under the statute does not depend on whether the court or party to whom the statement is made is actually misled by the attorney’s intentional false statement” … ; i.e., the statute “focuses on the attorney’s intent to deceive, not the deceit’s success” … .

… [P]laintiffs alleged in their amended complaint that, from the time he became the client’s attorney, Moore engaged in a pattern of conduct whereby he advocated for the validity of a fraudulent deed, and oversaw the revision of fraudulent surveys based upon that deed. Plaintiffs alleged that Moore was in possession of documents and correspondence establishing that the deed was the fraudulent product of the client and defendant Aaron I. Mullen, an attorney who had previously represented the client, and that Moore failed to disclose those items despite receiving a valid discovery demand for them. Plaintiffs also alleged that Moore instituted a CPLR article 78 proceeding based upon the allegedly fraudulent deed and that he attached the deed to the petition. Plaintiffs further alleged that Moore participated in the client’s fraud, and did so intentionally and with knowledge of the client’s fraud, to plaintiffs’ detriment of more than $100,000 in legal fees and expenses. Ostrander v Mullen, 2024 NY Slip Op 06461, Fourth Dept 12-20-24

Practice Point: A Judiciary Law 487 action against an attorney focuses on the attorney’s intent to deceive, not whether the deceit was successful.

 

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PLAINTIFF SUED THE COUNTY SHERIFF SEEKING A DECLARATORY JUDGMENT THAT A LOCAL COURT WHICH ISSUES A SECURING ORDER FOR A NONQUALIFYING OFFENSE VIOLATES THE ACCUSED’S CONSTITUTIONAL RIGHTS; THE FOURTH DEPARTMENT DETERMINED THERE WAS NO JUSTICIABLE CONTROVERY INVOLVING THE SHERIFF WHO IS BOUND TO OBEY A COURT’S SECURING ORDER; THE REAL DISPUTE IS WITH THE COURT WHICH ISSUES THE ORDER IN APPARENT VIOLATION OF A STATUTE (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court and dismissing the declaratory judgment action, determined there was no justiciable controversy. Plaintiff sued the County Sheriff seeking a declaration that “assigning a local court to arraign a criminal defendant with two previous felony convictions violates the constitutional rights of the accused because local courts lack the ability to order release or set bail under those circumstances.” The issue arose because of a conflict among provisions of the Criminal Procedure Law:

… City Court issued a securing order that committed [defendant] to the custody of the Sheriff on the basis of CPL 530.20 (2) (a) (double predicate provision). The double predicate provision states that a city, town, or village court (hereinafter, local court) may not order release on recognizance or bail when the criminal defendant, like plaintiff, has two previous felony convictions. Plaintiff further alleged that the double predicate provision conflicts with CPL 510.10 (4) (qualifying offense provision), which limits the court’s ability to issue a securing order imposing bail or remand to situations in which the criminal defendant stands charged with an enumerated qualifying offense (see also CPL 510.10 [3]). * * *

We conclude that plaintiff’s allegations fail to “demonstrate the existence of a bona fide justiciable controversy” inasmuch as there is no “real dispute between adverse parties, involving substantial legal interests for which a declaration of rights will have some practical effect” … . … “[T]he heart of the dispute is not any action taken by the Sheriff but rather whether the local . . . court must remand a given [criminal] defendant such as [plaintiff] to the custody of the Sheriff.” * * * Plaintiff’s real dispute is with the local court that issues a securing order ostensibly in violation of the qualifying offense provision, not with the Sheriff who is bound to obey the securing order. Where, as here, “there is no genuine dispute between the parties, the courts are precluded, as a matter of law, from issuing a declaratory judgment” … . Parker v Hilton, 2024 NY Slip Op 06456, Fourth Dept 12-20-24

Practice Point: Here the plaintiff’s dispute was not with the Sheriff, who is bound to obey a securing order, but was with the local court that issued the securing order which ostensibly violated a statute and the accused’s constitutional rights. Therefore there was no justiciable controversy between plaintiff and the Sheriff.

 

THE STATUTE OF LIMITATIONS FOR THIS SLIP AND FALL CASE WAS SUSPENDED DURING THE COVID TOLLS, RENDERING THE ACTION TIMELY (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the slip and fall action was timely brought because the running of the statute of limitations was suspended during the COVID tolls:

On March 20, 2020, then-Governor Andrew Cuomo issued Executive Order (A. Cuomo) No. 202.8, which tolled “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to . . . the civil practice law and rules” … . Then-Governor Cuomo issued a series of nine subsequent executive orders that extended the tolling period, eventually through November 3, 2020 … . “A toll does not extend the statute of limitations indefinitely but merely suspends the running of the applicable statute of limitations for a finite and, in this instance, readily identifiable time period” … . “[T]he period of the toll is excluded from the calculation of the time in which the plaintiff can commence an action” … .

Here, 651 days of the 1,096-day limitation period had elapsed by the time the toll began on March 20, 2020. Upon the expiration of the toll on November 3, 2020, the remaining 445 days of the limitation period began to run again, expiring on January 22, 2022. Thus, the action was timely commenced on June 17, 2021 … . Jackson v Goodfellas Pizzeria, Inc., 2024 NY Slip Op 06454, Fourth Dept 12-20-24

Practice Point: The COVID tolls suspended the running of statutes of limitations from March 20, 2020, to November 3, 2020.

 

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THE POLICE WERE AWARE THAT NO ONE ELSE WAS IN THE RESIDENCE AT THE TIME DEFENDANT LEFT THE RESIDENCE AND WAS ARRESTED; THERE WERE NO EXIGENT CIRCUMSTANCES JUSTIFYING THE WARRANTLESS SEARCH OF THE HOUSE AFTER DEFENDANT’S ARREST; THE WEAPONS SEIZED SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT

The Fourth Department, reversing County Court, determined defendant’s motion to suppress the weapons seized when the police did a “protective sweep” of defendant’s residence should have been granted. Defendant’s wife and daughter had left the residence and told the police, who were outside the residence, only the defendant was inside. Defendant eventually left the residence and was arrested. Only then did the police enter for the “protective sweep:”

… [W]e conclude that there were no emergency or exigent circumstances justifying the warrantless search of the residence. Once defendant’s daughter exited the dwelling, the officers knew from defendant’s wife that no one else was in the dwelling except defendant. None of the officers at the scene witnessed anything that would lead them to suspect that there was another person in the residence. The “mere possibility” that a person could be inside the premises did not justify the search … . We also note that there was no indication that defendant had shot or injured anyone prior to the officers’ arrival at his residence, and at no time had defendant threatened the police or anyone else at the residence. Under the circumstances, there was no legitimate reason for the police not to apply for a search warrant before entering the house. People v Swank, 2024 NY Slip Op 06449, Fourth Dept 12-20-24

Practice Point: A “protective sweep” of a residence that the police know to be vacant amounts to a warrantless search in the absence of exigent circumstances.

 

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SMI, A SOLID WASTE TREATMENT FACILITY, RAISED A SEQRA CHALLENGE TO A LOCAL LAW ALLOWING THE CONSTRUCTION OF A SOLID WASTE TREATMENT FACILITY IN THE TOWN OF SENECA FALLS; ALTHOUGH SMI ALLEGED THE NEW FACILITY WOULD CAUSE IT ECONOMIC LOSS, SMI DID NOT ALLEGE IT WOULD SUFFER ENVIRONMENTAL INJURY; THEREFORE SMI DID NOT HAVE STANDING TO CHALLENGE THE LOCAL LAW (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined SMI, the owner of a solid waste management facility, did not have standing to challenge, pursuant to the State Environmental Quality Review Act (SEQRA), a local law allowing the construction of a solid waste management facility in the Town of Seneca Falls. SMI’s claim it would suffer economic loss if the new facility is constructed was not enough to confer standing:

Those seeking to raise a SEQRA challenge must establish both “an environmental injury that is in some way different from that of the public at large, and . . . that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA” … .

… Although “[a] property owner in nearby proximity to premises that are the subject of [an agency] determination may have standing to seek judicial review without pleading and proving special damages, because adverse effect or aggrievement can be inferred from the proximity” … , the “status of neighbor does not . . . automatically provide the entitlement . . . to judicial review in every instance” … . The petitioner must also establish “that the interest asserted is arguably within the zone of interest to be protected by the statute” … .

Here, SMI failed to establish, or even allege, that it had suffered or would suffer an environmental injury. SMI submitted, inter alia, the affidavit of its managing director, who averred only that SMI would suffer economic injuries if the local law was not annulled. Although SMI, as the owner of a solid waste management facility, is entitled to a presumption that it would, in fact, suffer such economic harm, it failed to establish that it has standing to raise a SEQRA challenge because economic injury does not fall within the zone of interest SEQRA seeks to protect … . Matter of Seneca Meadows, Inc. v Town of Seneca Falls, 2024 NY Slip Op 06435, Fourth Dept 12-20-24

Practice Point: To demonstrate standing, a party bringing a SEQRA challenge must demonstrate an environmental injury which is in some way different from that of the public at large. Here no environmental injury was alleged. Therefore standing was not demonstrated.

 

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THE MUNICIPAL LAW PROVISION WHICH REQUIRES JUNK YARDS TO BE LICENSED DOES NOT APPLY IN PLAINTIFF TOWN WHERE DEFENDANT OPERATES HER JUNK YARD; A LOCAL ZONING ORDINANCE, WHICH DOES NOT REQUIRE LICENSURE, IS THE CONTROLLING LAW (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the Municipal Law provision which requires junk yards to be licensed does not apply to defendant because the local zoning ordinance is the controlling law:

… [T]he parties dispute whether General Municipal Law § 136 applies to junkyards located within plaintiff [town]. That statute provides that it “shall not be construed to . . . supersede . . . ordinances or local laws for the control of junk yards . . . and shall not be deemed to apply to any municipality which has any ordinance or local law or regulation to license or regulate junk yards” (General Municipal Law § 136 [12]).

We agree with defendant that General Municipal Law § 136 is inapplicable to plaintiff’s regulation of her junkyard inasmuch as plaintiff has a local “zoning ordinance[] . . . for the control of junk yards . . . in effect” … . Plaintiff’s Zoning Ordinance … defines the term “Junkyard,” establishes Zoning Districts, including, as relevant here, an “Agricultural/Residential District” and an “Industrial Zoning District,” provides that a junkyard is allowed only in an Industrial Zoning District and only with a Special Use Permit, and governs the application for and issuance of Special Use Permits. Plaintiff [town] therefore effectively implemented an “ordinance or local law or regulation to license or regulate junk yards” … . It is of no moment that plaintiff’s Zoning Ordinance did not include a specific policy for issuing a license for junkyards … . Town of Montezuma v Smith, 2024 NY Slip Op 06433, Fourth Dept 12-20-24

Practice Point: By its own terms the General Municipal Law provision which requires licensure of junk yards does not apply in towns that have a zoning ordinance which regulates junk yards, even where the ordinance does not require licensure.

 

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