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THE FACT THAT THE CHILD LIVED WITH THE GRANDMOTHER FOR FOUR YEARS WAS AN “EXTRAORDINARY CIRCUMSTANCE” WHICH AFFORDED GRANDMOTHER STANDING TO SEEK CUSTODY (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined grandmother had demonstrated “extraordinary circumstances” such that she had standing to seek custody:

… [T]he grandmother met her burden of demonstrating other extraordinary circumstances with respect to both the mother and the father. The Court of Appeals has explained that “[i]n the absence of ‘surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances’, a parent may not be denied custody” … . Consistent with that principle of law, we have determined that “an extended disruption of custody as defined in [the statute] is merely ‘a specific example of extraordinary circumstances’ . . . and the statute was ‘not intended to overrule existing case law relating to third parties obtaining standing in custody cases’ ” … .

In determining whether extraordinary circumstances exist, “[n]o one factor should be viewed in isolation . . . , but rather the ‘analysis must consider the cumulative effect of all issues present in a given case . . . , including, among others, the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the . . . parent allowed such custody to continue without trying to assume the primary parental role’ ” … .

Here, we conclude that there are ” ‘other like extraordinary circumstances’ ” that give the grandmother standing to seek custody of the child … . Extraordinary circumstances arise from the fact that the now-six-year-old child has resided exclusively with the grandmother since she was two years old, the mother was incapable of caring for the child due to mental illness, and the father has not been significantly involved in the child’s life since birth. The father has had limited and sporadic visitation with the child and has never had the child with him overnight. He has not attended school events or medical appointments. Nor has he paid child support to either the mother or the grandmother. Finally, the child is emotionally attached to the grandmother and her half-brother, who has also been raised by the grandmother … . Matter of Morris v Smith, 2025 NY Slip Op 07133, Fourth Dept 12-23-25

Practice Point: Consult this decision for insight into the “extraordinary circumstances” which will afford a nonparent standing to seek custody. Here the fact that the child had resided with grandmother for four years was deemed such an “extraordinary circumstance.”

 

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DEFENDANT WAS NOT COERCED INTO PLEADING GUILTY; THE JUDGE’S DESCRIBING THE POSSIBLE RANGE OF SENTENCING, PLEADING GUILTY TO AVOID A HARSHER SENTENCE, THE JUDGE’S COMMENTING ON THE STRENGTH OF THE PEOPLE’S CASE, AND COUNSEL’S TELLING DEFENDANT THE SENTENCE WOULD LIKELY BE HARSHER AFTER TRIAL, DID NOT AMOUNT TO “COERCION” (FOURTH DEPT).

The Fourth Department, affirming defendant’s conviction, over a dissent, determined defendant’s guilty plea was knowing, intelligent and voluntary, the dissent disagreed:

[D]espite the court’s initial inclination to end the plea proceeding and allow the matter to proceed to trial and its indication that it could not accept a plea that was not voluntary, the court continued with the plea proceeding after defendant emphatically insisted that the plea “is voluntary . . . is voluntary . . . is voluntary” and that the court was not pressuring him. Defendant was given another opportunity to consult with defense counsel and then indicated that he wanted to proceed with the plea, and the court thereafter asked again whether defendant, with intent to cause serious physical injury, did in fact cause such injury to the victim by repeatedly stabbing her, to which defendant answered in the affirmative. The court then followed up one more time by asking defendant whether he was telling the truth when he answered that prior question, to which defendant again responded in the affirmative. Therefore, contrary to the dissent’s suggestion that the law required more of the court, the record reflects that the court “properly conducted such [a further] inquiry and that defendant’s responses to the court’s subsequent questions removed [any] doubt about [his] guilt” with respect to the previously negated elements of assault in the first degree … . …

n any event, we conclude that defendant’s challenge to the voluntariness of the plea lacks merit. Indeed, defendant’s contention that the court coerced him into accepting the plea is belied by the record because, during the plea colloquy, defendant denied that he had been threatened or otherwise pressured into pleading guilty and, moreover, defendant specifically denied that the court had pressured him into taking a plea … . Further, contrary to defendant’s assertion, “[a]lthough it is well settled that ‘[a] defendant may not be induced to plead guilty by the threat of a heavier sentence if [the defendant] decides to proceed to trial,’ ” we conclude that the statements made by the court ” ‘amount to a description of the range of the potential sentences’ rather than impermissible coercion” … . The fact that defendant ” ‘may have pleaded guilty to avoid receiving a harsher sentence does not render his plea coerced’ ” … . Likewise, contrary to defendant’s assertion, we conclude on this record that the court “did not coerce defendant into pleading guilty merely . . . by commenting on the strength of the People’s evidence against him” … . Contrary to defendant’s related assertion, we conclude that “defense counsel’s advice that [defendant] was unlikely to prevail at trial and that he would likely receive a harsher sentence if convicted after trial . . . does not constitute coercion” … . People v Freeman, 2025 NY Slip Op 07125, Fourth Dept 12-23-25

Practice Point: Consult this decision for insight into what does and does not amount to “coercion” in the context of a guilty plea.

 

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ALTHOUGH THE 16-YEAR-OLD DEFENDANT IN THIS MURDER CASE WAS LIABLE AS AN ACCOMPLICE, ACCOMPLICE-LIABILITY STANDING ALONE DOES NOT PRECLUDE REMOVAL TO FAMILY COURT; A GUILTY PLEA DOES NOT FORFEIT AN APPELLATE CHALLENGE TO THE DENIAL OF REMOVAL; THE WAIVER OF APPEAL WAS INVALID BECAUSE IT PURPORTED TO FORECLOSE ALL APPELLATE CHALLENGES (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, over a two-justice dissent, determined (1) defendant’s waiver of appeal was invalid because it purported to foreclose all appellate challenges; and (2) the statutory procedure for removing the 16-year-old defendant’s prosecution to Family Court was violated. The fact that defendant was charged as an accomplice in this carjacking/murder case did not disqualify the defendant from the removal procedure. Once the removal procedure is started, the People have 30 days to demonstrate removal is not appropriate. The majority disagreed with the dissent’s argument that the “removal-to-Family-Court-issue” was forfeited by defendant’s guilty plea:

Defendant orally waived his right to appeal and executed a written waiver thereof. The language in the written waiver, however, is “inaccurate and misleading insofar as it purports to impose ‘an absolute bar to the taking of a direct appeal’ and to deprive defendant of his ‘attendant rights to counsel and poor person relief, [as well as] all postconviction relief separate from the direct appeal’ ” … . * * *

Defendant contends that the court erred in concluding that the People established by a preponderance of the evidence that defendant “caused significant physical injury to a person other than a participant in the offense” (CPL 722.23 [2] [c] [i]) and that defendant was therefore disqualified from having the matter transferred to Family Court. Initially, we respectfully disagree with our dissenting colleagues that defendant’s contention is forfeited by his guilty plea. It is undisputed that a guilty plea does not “extinguish every claim on appeal” and that the issues that are not forfeited by the plea generally “relate either to jurisdictional matters . . . or to rights of a constitutional dimension that go to the very heart of the process” … . * * *

The plain language of CPL 722.23 (2) (c) supports the conclusion that the Legislature did not intend for the circumstances disqualifying an adolescent offender from removal to Family Court to be coextensive with criminal liability, including principles of accessorial liability, for a statutorily designated violent crime. Indeed, such a result could have been achieved by disqualifying adolescent offenders based solely on the crime charged without reference to any further factors. People v Jacobs, 2025 NY Slip Op 07124, Fourth Dept 12-23-25

Practice Point: Here the 16-year-old defendant should not have been denied removal to Family Court solely based on accomplice liability for murder. The right to challenge the denial of removal was not forfeited by defendant’s guilty plea. The waiver of appeal was invalid because it purported to foreclose all appellate challenges.

 

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DEFENDANTS’ MOTION TO AMEND THEIR COUNTERCLAIM FOR DEFAMATION, DEFAMATION PER SE AND DEFAMATION BY IMPLICATION SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants’ cross-motion to amend the counterclaim for defamation should been granted. The allegations of defamation, defamation per se and defamation by implication were deemed sufficient. The decision is fact specific and cannot be fairly summarized here. The plaintiff and defendants, licensed investment advisors, entered an employment arrangement which broke down. Plaintiff sued for breach of a restrictive covenant. Defendants asserted a counterclaim for defamation based upon emails sent by plaintiff to their business clients:

Defendants sufficiently alleged that the statements made by the individual parties were false and that they were reasonably susceptible of a defamatory connotation. In determining the sufficiency of a defamation pleading, we must “consider ‘whether the contested statements are reasonably susceptible of a defamatory connotation’ ” … , and, in doing so, we must “give the disputed language a fair reading in the context of the publication as a whole” … . Here, the emails were sent to clients of plaintiff who had previously been clients of defendants and advised them that defendant was no longer employed by plaintiff. The emails stated that the investment trading industry was “highly regulated,” that plaintiff had “compliance policies” to protect its clients against “conflicts of interest,” and that defendant found those policies “overly burdensome.” We conclude that the disputed language provides a basis “from which the ordinary reader could draw an inference” … that plaintiff was accusing defendant of failing to adhere to ethical standards in the investment trading industry. …

” ‘A statement imputing incompetence or dishonesty to the [party] is defamatory per se if there is some reference, direct or indirect, in the words or in the circumstances attending to their utterance, which connects the charge of incompetence or dishonesty to the particular profession or trade engaged in by [the party]’ ” … . The statement “must be more than a general reflection upon [the party’s] character or qualities[;] . . . [it] must reflect on [the party’s] performance or be incompatible with the proper conduct of [their] business” …. Here, as alleged in the proposed amended counterclaim, the statements conveyed that defendant was unable to conduct her work in a legally compliant and ethical manner and that she lacked professional competence or integrity. …

” ‘Defamation by implication’ is premised not on direct statements but on false suggestions, impressions and implications arising from otherwise truthful statements” … . There is a heightened legal standard for a claim of defamation by implication … . “Under that standard, ‘[t]o survive a motion to dismiss a claim for defamation by implication where the factual statements at issue are substantially true, the [party asserting the defamation claim] must make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference’ ” … . The second part of the test is an objective inquiry and ” ‘asks whether the plain language of the communication itself suggests that an inference was intended or endorsed’ ” … . Armbruster Capital Mgt., Inc. v Barrett, 2025 NY Slip Op 06493, Fourth Dept 11-21-25

Practice Point: Consult this decision for a detailed discussion of the elements of defamation, defamation per se, and defamation by implication.

 

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IN DETERMINING WHETHER THE PEOPLE’S CERTIFICATE OF COMPLIANCE WITH THEIR DISCOVERY OBLIGATIONS WAS VALID THE MOTION COURT RULED THE PEOPLE HAD ACTED IN GOOD FAITH; THE MATTER WAS REMITTED FOR THE APPLICATION OF THE CORRECT STANDARD: WHETHER THE PEOPLE ACTED WITH DUE DILIGENCE AND MADE REASONABLE EFFORTS TO SATISFIY THEIR OBLIGATIONS (FOURTH DEPT).

The Fourth Department remitted the matter for a new determination whether the People’s certificate of compliance (COC) with their discovery obligations was valid. The motion judge held the People “acted in good faith.” The appropriate inquiry is whether the People exercised due diligence and made reasonable efforts to satisfy their obligations:

… [T]he court erred in concluding that the People’s initial COC was proper solely on the basis that the People acted in good faith with respect to their discovery obligations. The court was required to determine whether the People satisfied their burden of establishing that they exercised due diligence and made reasonable efforts to satisfy their obligations under CPL article 245 at the time they filed their initial COC … . In light of the court’s failure to consider whether the People met that burden, we hold the case, reserve decision and remit the matter to Supreme Court to make that determination and, if appropriate, to determine whether the statement of readiness was valid and whether the People were ready within the requisite time period (see CPL 30.30 [1] [a]). People v Mosley, 2025 NY Slip Op 06484, Fourth Dept 11-21-25

Practice Point: The standard for determining whether the People’s certificate of compliance with their discovery obligations is valid is “due diligence,” not “good faith.”

 

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DEFENDANT MOVED TO SUPPRESS THE WEAPON SEIZED FROM DEFENDANT’S VEHICLE AFTER A TRAFFIC STOP ON THE GROUND THERE WAS NO PROBABLE CAUSE FOR THE STOP; THE POLICE CLAIMED THE REASON FOR THE STOP WAS DEFENDANT’S FAILURE TO WEAR A SEATBELT; SURVEILLANCE VIDEOS WHICH WOULD HAVE SHOWN WHETHER DEFENDANT WAS WEARING A SEARBELT WERE NOT PRESERVED; DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST AN ADVERSE INFERENCE CHARGE IN CONNECTION WITH THE SUPPRESSION MOTION; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter for legal argument and, if defendant so requests, reopening of the suppression hearing, determined defendant did not receive effective assistance of counsel. Surveillance videos which would have shown whether defendant was not wearing a seatbelt (the claimed probable cause for the stop) were not preserved. Defendant moved to suppress the weapon seized from the vehicle on the ground there was no probable cause for the traffic stop. Defense counsel was deemed ineffective for failing the request an adverse inference charge:

… [T]he single omission of failing to request that the court consider an adverse inference charge at the suppression hearing deprived defendant of meaningful representation … . Defense counsel’s error in failing to make that argument was sufficiently egregious and prejudicial as to deprive defendant of his constitutional right to effective legal representation because the only evidence presented by the People at the hearing was testimony from one of the arresting officers, whose testimony was inconsistent at times, and an adverse inference charge could have successfully undermined the officer’s testimony on the issue of probable cause to stop defendant, i.e., whether defendant was, in fact, not wearing a seatbelt. Indeed, suppression of the gun that was seized as a result of defendant’s encounter with the police would have been dispositive of the sole count of the indictment, charging defendant with criminal possession of a weapon in the second degree … . Under the circumstances of this case, defense counsel’s failure to request an adverse inference charge could not have been grounded in legitimate strategy … . We note that defendant’s contention survives his guilty plea inasmuch as he demonstrated that defense counsel’s error infected the plea bargaining process … .

We therefore conditionally modify the judgment by remitting the matter to Supreme Court “for further proceedings on the suppression application, to include legal argument by counsel for both parties and, if defendant so elects, reopening of the hearing” … . In the event that defendant prevails on the suppression application, the judgment is reversed, the plea is vacated and the indictment is dismissed and, if the People prevail, then the judgment “should be amended to reflect that result” … . People v Evans, 2025 NY Slip Op 06477, Fourth Dept 11-21-25

Practice Point: Here surveillance videos which would have shown whether defendant was not wearing a seatbelt (the claimed probable cause for the traffic stop) were not preserved. Defendant moved to suppress the weapon seized from the vehicle on the ground there was no probable cause for the stop. Defense counsel was deemed ineffective for failing to request an adverse inference charge with respect to the suppression hearing. The remedy: the matter was remitted for legal argument and, if defendant requests, reopening of the suppression hearing.

 

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IN THIS DRAM SHOP ACT CASE, DEFENDANT BAR DID NOT DEMONSTRATE DEFENDANT DRIVER WAS NOT VISIBLY INTOXICATED WHEN SERVED AND THEREFORE DID NOT MEET ITS INITIAL BURDEN FOR ITS SUMMARY JUDGMENT MOTION; A TWO-JUSTICE DISSENT ARGUED DEFENDANT BAR MET ITS INITIAL BURDEN, THUS SHIFITNG THE BURDEN TO THE PLANTIFF (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined, in this Dram Shop Act case, defendant bar did not demonstrate defendant driver was not visibly intoxicated when served alcohol. The dissenters argued the bar met its initial burden on its motion for summary judgment:

In support of the motion, defendant submitted evidence that, throughout the evening preceding the accident, plaintiff and a group of others—including the driver—were out celebrating and consumed alcohol. Just before they went to defendant’s bar, the entire group had been denied entry into another establishment because some members of the group were visibly intoxicated. At defendant’s bar, the group was served and consumed more alcohol. Although defendant’s owner and employees testified that defendant’s employees as a general practice do not allow visibly intoxicated persons to drink alcohol and that the employees were trained to recognize visibly intoxicated people, no one could specifically recall seeing the driver, nor could they describe the driver’s level of intoxication on the night at issue … . In fact, none of the deposition testimony submitted by defendant was from an individual physically present inside the bar at the time the driver was allegedly served.

From the dissent:

…. [W]e conclude that defendant met its initial burden on the motion by submitting uncontradicted deposition testimony “in which its employees averred that they had no recollection that [the driver] was visibly intoxicated while she was . . . at [defendant]’s establishment” … . … [D]efendant’s employees testified that staff are trained to recognize visibly intoxicated persons; that bartenders do not allow visibly intoxicated persons to drink alcohol; and that bouncers do not allow visibly intoxicated persons to enter the bar, that they make rounds inside the establishment in order to observe the patrons and determine if anyone is visibly intoxicated, and that they signal the bartenders to stop serving alcohol to patrons who are visibly intoxicated. Additionally, a bouncer testified that he recalled conducting “rounds inside the establishment” on the night of the incident and that he observed the patrons, as was his routine, but did not “signal[ ] to the bartenders that anyone was intoxicated.” Gonzalez v City of Buffalo, 2025 NY Slip Op 06423, Fourth Dept 11-21-25

Practice Point: In moving for summary judgment in a Dram Shop Act case, the defendant bar had the initial burden to demonstrate it did not serve a visibly intoxicated defendant. Because the majority concluded that initial burden was not met, the summary judgment motion was denied without the need to consider the plaintiff’s response. The dissent disagreed with the majority and argued the bar had met its initial burden.​

 

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HERE THE JUDGE DID NOT HAVE THE AUTHORITY TO SUMMARILY MAKE A SEVERE ABUSE FINDING AND TERMINATE RESPONDENTS’ PARENTAL RIGHTS BASED UPON A PRIOR ABUSE HEARING; SEVERE ABUSE WAS NOT ALLEGED IN THE PRIOR HEARING; A SEVERE ABUSE FINDING MUST BE BASED ON A “CLEAR AND CONVINCING” STANDARD, NOT THE “PREPONDERANCE OF EVIDENCE” STANDARD APPLIED IN THE PRIOR HEARING; IN ADDITION, THE JUDGE SHOULD NOT HAVE ISSUED AN ORDER OF DISPOSITION WITHOUT HOLDING A DISPOSITIONAL HEARING; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court’s “severe abuse” finding and the consequent termination of parental rights, determined it was error to make these rulings based upon a prior abuse hearing because “severe abuse” was not alleged in that hearing. In addition, a finding of “severe abuse” must be based on “clear and convincing evidence,” not the “preponderance of the evidence” standard applied in the prior hearing. Also, the judge should not have issued an order of disposition without holding a dispositional hearing:

… [T]he court did not have the authority, in the context of this Social Services Law § 384-b proceeding, to retroactively make a finding of severe abuse under Family Court Act § 1051 (e) based upon the evidence adduced during the prior article 10 abuse proceeding. … Family Court Act § 1051 (e) provides that in an article 10 abuse case, the court may “[i]n addition to a finding of abuse, . . . enter a finding of severe abuse or repeated abuse, . . . which shall be admissible in a proceeding to terminate parental rights pursuant to [Social Services Law § 384-b (4) (e)] . . . If the court makes such additional finding of severe abuse or repeated abuse, the court shall state the grounds for its determination, which shall be based upon clear and convincing evidence.”

Thus, while it is true that a court is permitted to make a severe abuse finding as part of the disposition in an article 10 abuse case … , that did not occur here. Indeed, in the context of the underlying article 10 proceeding, petitioner did not seek a determination that Respondents severely abused the child, and the court made no such determination. Moreover, the entirety of the court’s findings in the article 10 matter were based upon a preponderance of the evidence—not clear and convincing evidence as required by the statute … . Finally, we note that the court improperly issued an order of disposition in this case before conducting a dispositional hearing (see Family Ct Act § 631; Social Services Law § 384-b [8] [f]). We therefore reverse the order and remit the matter to Family Court for further proceedings on the petition.  Matter of Kevin V. (Sara L.), 2025 NY Slip Op 06422, Fourth Dept 11-21-25

 

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THE MOTION COURT PROPERLY ISSUED A PROTECTIVE ORDER REQUIRING PLAINTIFF’S COUNSEL IN THIS MED MAL CASE TO RESCIND THE CORRESPONDENCE SENT TO PLAINTIFF’S TREATMENT PROVIDERS WHICH DISCOURAGED THEM FROM SPEAKING WITH DEFENSE COUNSEL; THE DISSENT ARGUED THE MAJORITY WAS IMPROPERLY ISSUING AN ADVISORY OPINION (FOURTH DEPT).

The Fourth Department, over a dissent which argued the majority was improperly issuing an advisory opinion, determined the trial judge in this medical malpractice action properly ordered plaintiff’s counsel rescind correspondence sent to treatment providers which discouraged the treatment providers from speaking with defense counsel. The correspondence accompanied the “Arons” speaking authorizations executed by the plaintiff:

… [A] plaintiff who signs an authorization allowing a treating physician to speak to defense counsel about the plaintiff’s medical condition at issue should not be allowed to send a letter separately to the same physician requesting that the physician not speak to defense counsel. Permitting plaintiffs to make such a request would undermine the purpose of the Arons authorization and, at the very least, be confusing to the physician … .

Adding to the confusion is the statement “I value and wish to protect the confidentiality of our physician-patient relationship,” which may lead the physician to conclude that, notwithstanding plaintiff’s execution of the speaking authorization, plaintiff was not actually waiving the physician-patient privilege or the privacy protections afforded by HIPAA. …

… [T]he letter … might lead the physician to believe, wrongly, that plaintiff has a right to attend any informal interview with defense counsel. … [A] defendant’s attorney may ask treating physicians to participate in ex parte interviews, which by definition do not involve the plaintiff. While a physician may insist that the plaintiff be present for such an interview, that is a decision for the physician alone to make. Just as a defendant’s attorney has no right to interview the physician informally … , a plaintiff has no right to attend the interview (the plaintiff has only the right to ask the physician for permission to attend an interview).

Based on the above, we cannot conclude that the court abused its discretion in directing plaintiff “to send correspondence to his treating physicians rescinding all prior letters sent containing the language that the [c]ourt has deemed to be confusing, misleading and/or intimidating.”  Murphy v Kaleida Health, 2025 NY Slip Op 06421, Fourth Dept 11-21-25

Practice Point: Here the letters sent to treatment providers by plaintiff’s counsel, which accompanied the “Arons” speaking authorizations, improperly discouraged the treatment providers from speaking with defense counsel. Plaintiff’s counsel was properly ordered to rescind the correspondence.

 

DEFENDANT WAS CONVICTED OF ASSAULT ON A PEACE OFFICER AND ASSAULT SECOND; THE ASSAULT SECOND CONVICTION WAS REVERSED BECAUSE (1) ASSAULT SECOND IS AN INCLUSORY CONCURRENT COUNT OF ASSAULT ON A PEACE OFFICER, AND (2) ASSAULT SECOND IS A LESSER INCLUDED OFFENSE OF ASSAULT ON A PEACE OFFICER (FOURTH DEPT).

The Fourth Department reversed the assault second conviction because assault second is an inclusory concurrent count of assault on a peace officer:

… [T]he conviction of assault in the second degree cannot stand. … [T]his Court has previously determined that assault in the second degree “is an inclusory concurrent count of assault on a [peace] officer” … . Moreover, as charged here, assault in the second degree “is a lesser included offense of assault on a [peace] officer” … . As a result, that part of the judgment convicting defendant of assault in the second degree must be reversed and count 4 of the indictment dismissed … . People v Engles, 2025 NY Slip Op 06412, Fourth Dept 11-21-25

 

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