You are here: / Fourth Department

Tag Archive for: Fourth Department

, , ,

THE SUPPRESSION COURT APPLIED THE WRONG “DEBOUR” LEVEL TO THE INITIAL INQUIRY BY THE OFFICER WHO APPROACHED DEFENDANT AND REQUESTED THAT HE STEP OUT OF THE CAR; BECAUSE THE SUPPRESSION ISSUE HAD NOT BEEN RULED UPON UNDER THE CORRECT “DEBOUR” STANDARD, THE APPELLATE COURT COULD NOT CONSIDER THE ISSUE AND THE MATTER WAS REMITTED FOR A RULING UNDER THE CORRECT “DEBOUR” STANDARD (FOURTH DEPT).

The Fourth Department, reserving decision, remitted the matter for another ruling on defendant’s suppression motion. The trial judge determined that the police officer conducted a level one (DeBour) inquiry when he ordered the defendant out of the car. In fact, the officer conducted a level three inquiry which required reasonable suspicion of criminal activity. Because the ruling on defendant’s suppression motion was based upon the wrong standard, the matter was remitted for a ruling under the correct standard:

… [T]he patrol lieutenant engaged in a level three intrusion under De Bour when he ordered the occupants out of the vehicle … . Although an “officer’s initial approach of [a person] and request for identification [may constitute] a permissible level one encounter” under De Bour, it is well established that an “officer’s request that [a person] exit [a] parked vehicle elevate[s] the situation to a level three encounter under De Bour” and requires reasonable suspicion that criminal activity is afoot … .

Because the court erroneously concluded that the patrol lieutenant engaged in only a level one intrusion when he directed defendant to step out of the vehicle, the court had no occasion to consider whether the patrol lieutenant had reasonable suspicion justifying that directive … . Although the People concede that the patrol lieutenant lacked reasonable suspicion, we are precluded “from reviewing an issue that . . . was not decided by the trial court” … . People v Taylor, 2024 NY Slip Op 01449, Fourth Dept 3-15-24

Practice Point: When the police officer approached defendant and asked defendant to get out of the car, the officer was conducting a level three DeBour inquiry which required reasonable suspicion of criminal activity. The suppression judge erroneously applied the criteria for a level one inquiry and denied suppression. Because the correct suppression issue was never ruled upon, the appellate court was forced to remit the matter for a ruling under the correct DeBour standard.

 

PROMOTING PROSTITUTION CONVICTIONS REVERSED BECAUSE THE PROMOTING PROSTITUTION COUNTS ARE INCLUSORY CONCURRENT COUNTS OF SEX TRAFFICKING (FOURTH DEPT). ​

The Fourth Department dismissed the “promoting prostitution” counts of the indictment as inclusory concurrent counts of sex trafficking:

We note … that count 15 of the indictment, charging defendant with promoting prostitution in the second degree (Penal Law § 230.30 [1]), is an inclusory concurrent count of sex trafficking as charged in counts 12, 13, and 14 (§ 230.34 [5] [a], [c], [h]; see generally CPL 1.20 [37]; 300.30 [4]). Similarly, count 24 of the indictment, charging defendant with promoting prostitution in the second degree, is an inclusory concurrent count of sex trafficking as charged in counts 21, 22, and 23. We therefore conclude that counts 15 and 24 must be dismissed as a matter of law because defendant was found guilty of counts 12 through 14 and 21 through 23, and “a verdict of guilty upon the greater [counts] is deemed a dismissal of every lesser [inclusory concurrent count]” … . People v Spencer, 2024 NY Slip Op 01448, Fourth Dept 3-15-25

Practice Point: If a defendant is convicted of sex trafficking and promoting prostitution, the promoting prostitution convictions must be reversed as inclusory concurrent counts of sex trafficking.

 

,

QUESTIONS OF FACT ABOUT WHETHER THE INSURER WAS TIMELY NOTIFIED OF THE ASBESTOS-EXPOSURE CLAIM AND WHEN THE INJURY-IN-FACT OCCURRED PRECLUDED SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined there are questions of fact whether the defendant insurer was timely notified of the claim in this asbestos-exposure case, and there are questions of fact, raised by conflicting expert evidence, about when the injury-in-fact occurred:

Defendant contends that the Meissners’ [plaintiffs’] delay of 68 days—from when they were first informed that Ridge Construction [defendant] had excess insurance policies issued by defendant to the date that the Meissners’ counsel wrote to provide defendant notice of the claim—was unreasonable as a matter of law. In response, plaintiff asserts that the delay was reasonable because the Meissners were not aware for the first 63 of those days that Ridge Construction had failed to provide defendant with notice. “The reasonableness of the delay in giving notice is ordinarily a question for the fact-finder” … .

* * * The parties … “dispute when an asbestos-related injury actually begins: plaintiff[ ] assert[s] that injury-in-fact occurs upon first exposure to asbestos, while defendant denies that assertion and instead maintains that injury-in-fact occurs only when a threshold level of asbestos fiber or particle burden is reached that overtakes the body’s defense mechanisms” … . Inasmuch as the parties here submitted conflicting expert opinions as to when the injury-in-fact occurs in an asbestos-related injury, summary judgment on that basis was not proper … . Meissner v Ridge Constr. Corp., 2024 NY Slip Op 01445, Fourth Dept 3-15-24

Practice Point: Whether the insurer was timely notified of the asbestos-exposure claim is a question of fact which should not have been determined as a matter of law at the summary judgment stage.

Practice Point: Here conflicting expert evidence was presented about when the injury-in-fact occurs in an asbestos-exposure case. The issue should not have been determined as a matter of law at the summary judgment stage.

 

A STACK OF DRYWALL LEANING AGAINST A WALL AND PARTIALLY BLOCKING A DOORWAY FELL OVER ON PLAINTIFF’S ANKLE AS PLAINTIFF ATTEMPTED TO MOVE IT; THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT). ​

The Fourth Department, reversing (modifying( Supreme Court, determined the Labor Law 240(1) and 241(6) causes of action should not have been dismissed. A stack of drywall leaning against a wall and partially blocking a doorway fell over onto plaintiff’s ankle when plaintiff and another attempted to move it:

Although the drywall that fell on plaintiff was located on the floor and was not being hoisted or secured, issues of fact exist whether section 240 (1) applies to this case … .

… [The] Labor Law § 241 (6) cause of action insofar … is premised on an alleged violation of 12 NYCRR 23-2.1 (a) (1) … .. Issues of fact exist whether the drywall was stored safely at the construction site and whether the drywall was a material pile that blocked a passageway … . Jesmain v Time Cap Dev. Corp., 2024 NY Slip Op 01444, Fourth Dept 3-15-24

Practice Point: A stack of drywall which was leaning against the wall and partially blocked a doorway fell over on plaintiff’s ankle when he attempted to move it. That scenario presented issues of fact precluding summary judgment in favor of defendants on the Labor Law 240(1) and 241(6) causes of action.

 

THE SIDEWALK ON WHICH PLAINTIFF WAS RIDING HIS MOTORIZED BICYCLE WHEN HE FELL WAS NOT DESIGNED OR SUITABLE FOR RECREATIONAL USE; THEREFORE THE PROPERTY OWNER, SYRACUSE UNIVERSITY, COULD NOT RELY ON THE RECREATIONAL-USE STATUTE (GENERAL OBLIGATIONS LAW 9-103) TO ESCAPE LIABILITY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the recreational use statute (General Obligations Law 9-103(1)(a)) did not apply to the sidewalk on which plaintiff was riding his motorized bicycle when he fell. Therefore defendant was not entitled escape liability based upon the statute. The sidewalk was along a busy road on the Syracuse University campus and therefore was not designed or suitable for recreational use:

General Obligations Law § 9-103 (1) (a) provides that “an owner, lessee or occupant of premises . . . owes no duty to keep the premises safe for entry or use by others for . . . bicycle riding . . . or to give warning of any hazardous condition . . . on such premises to persons entering for such purposes.” The statute was enacted to “induce property owners, who might otherwise be reluctant to do so for fear of liability, to permit persons to come on their property to pursue specified activities” … . The rationale for the statute is that “outdoor recreation is good; New Yorkers need suitable places to engage in outdoor recreation; [and] more places will be made available if property owners do not have to worry about liability when recreationists come onto their land” … . The statute applies when two conditions are met: (1) the plaintiff is engaged in one of the activities identified in section 9-103 and (2) the plaintiff is recreating on land suitable for that activity … .

… In evaluating the suitability of a property for a particular activity, courts look to whether the premises is the “type of property which is not only physically conducive to the particular activity or sport but is also a type which would be appropriate for public use in pursuing the activity as recreation” … . … [W]e conclude that plaintiff sufficiently alleged that the sidewalk at issue was not appropriate for public use in pursuing the recreational activity of bike riding. Plaintiff alleged that the sidewalk area where [plaintiff] fell was not designated by defendant for bike riding and was situated along a busy campus roadway near the front entrance of an academic building containing classrooms and offices. Such a property is not appropriate for public use in pursuing bicycle riding as a recreational activity … . Inasmuch as the recreational use statute does not apply here, the court erred in granting the motion [to dismiss]. Delaney v Syracuse Univ., 2024 NY Slip Op 00731, Fourth Dept 2-9-24

Practice Point: General Obligations Law 9-103 allows property owners to open up their property for recreational use, including bicycling, without fear of liability for injury to those using the property for recreational purposes, Here the sidewalk on which plaintiff was riding when he fell was nether designed nor appropriate for recreational use. Therefore the property owner could not take advantage of the recreational-use statute to escape liability.

 

, ,

IN A MED MAL ACTION PLAINTIFF’S EXPERT NEED NOT HAVE PRACTICED IN THE SAME SPECIALTY AS DEFENDANT DOCTOR TO BE QUALIFIED TO OFFER EXPERT OPINION EVIDENCE (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined plaintiff’s expert laid an adequate foundation for their qualifications in orthopedic medicine. The court noted that plaintiff’s expert need not have practiced in the same specialty as the defendant:

“[A] plaintiff’s expert need not have practiced in the same specialty as the defendant[]” … , and “any alleged lack of knowledge in a particular area of expertise goes to the weight and not the admissibility of the testimony” … . Here, plaintiffs’ expert is board certified as a medical examiner, an orthopedic surgeon and an arthroscopic laser surgeon. The expert completed a residency in general and orthopedic surgery. The expert is now a clinical instructor of orthopedic surgery and a clinical assistant professor of orthopedic surgery. The expert is affiliated with four hospitals and previously served as the chair of the department of orthopedic surgery at one hospital. Thus, we conclude that plaintiffs’ expert “had the requisite skill, training, education, knowledge or experience from which it can be assumed that [the expert’s] opinion[ ] . . . [is] reliable” … . McMahon-DeCarlo v Wickline, 2024 NY Slip Op 00730, Fourth Dept 2-9-24

Practice Point: Although plaintiff’s expert had not practiced in the same specialty as defendant doctor in this med mal action, plaintiff’s expert was qualified to offer reliable expert opinion evidence.

 

,

THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DID NOT JUSTIFY THE OFFICER’S ENTRY OF THE RESIDENCE AND SEIZURE OF A SWITCHBLADE; SWITCHBLADE AND STATEMENTS RELATING TO THE SWITCHBLADE SUPPRESSED; IN ADDITION, AN INCLUSORY CONCURRENT COUNT WAS DISMISSED (FOURTH DEPT).

The Fourth Department determined (1) the search of defendant’s premises and the seizure of switchblade was not justified by the emergency exception to the warrant requirement and (2) the criminal possession of a weapon conviction must be dismissed as an inclusory concurrent count of criminal possession of a weapon third:

The court reasoned that the officer’s entry into defendant’s residence was justified under the emergency exception to the warrant requirement, which permits a warrantless search where ” ‘(1) the police . . . have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property and this belief [is] grounded in empirical facts; (2) the search [is] not . . . primarily motivated by an intent to arrest and seize evidence; and (3) there [is] some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched’ ” … . … [T]he first and third elements of the emergency exception were not present at the time the officer entered defendant’s residence because defendant had been secured prior to that time and the officer who conducted the search testified that he did not believe there was anyone else in the residence at that time … .

We therefore modify the judgment by granting that part of defendant’s omnibus motion seeking to suppress the switchblade knife and defendant’s statements relating to the switchblade knife, reversing that part of the judgment convicting defendant of CPW in the third degree as it relates to the switchblade knife, and dismissing count 4 of the indictment … . People v Lee, 2024 NY Slip Op 00718, Fourth Dept 2-9-24

Practice Point: At the time the officer entered defendant’s residence and seized a switchblade all parties had been secured and removed from the residence. The emergency exception to the warrant requirement did not apply.

 

,

THE ACTION FOR DAMAGES FOR MEDICAL SERVICES WAS NOT APPROPRIATE FOR A CLERK’S JUDGMENT FOR A SUM CERTAIN; DEFENDANT RAISED A QUESTION OF FACT WHETHER HE WAS PROPERLY SERVED WITH THE SUMMONS WITH NOTICE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) the action for damages for medical services was not appropriate for a clerk’s judgment for a sum certain pursuant to CPLR 3215(a) and (2) defendant raised a question of fact about whether he was served with the summons with notice pursuant to CPLR 308(4):

… [T]he Clerk lacked authority under CPLR 3215 (a) to enter the default judgment. “CPLR 3215 (a) allows a party to seek a default judgment by application to the clerk if the claim is ‘for a sum certain or for a sum which can by computation be made certain’ ” … . “The limitation of clerk’s judgments to claims for a sum certain contemplates a situation in which, once liability has been established, there can be no dispute as to the amount due” … . “The statute is intended to apply to only the most liquidated and undisputable of claims, such as actions on money judgments and negotiable instruments” … . Under the circumstances of this case, we conclude that this action, which seeks to recover damages for medical services, is not for a sum certain or for a sum that by computation can be made certain … . * * *

Defendant submitted an affidavit in which he averred, inter alia, that he lived in the upstairs apartment of a two-story, two-family house, and that, because his apartment was not specified on the papers described in the process server’s affidavit of service, he never received service … . State of New York v Walker, 2024 NY Slip Op 00716, Fourth Dept 2-9-24

Practice Point: An action for a clerk’s judgment for a sum certain is only appropriate where there is absolutely no dispute about the amount due, not here in a case seeking damages for medical services.

 

THE BED OF A VAN IS NOT AN ELEVATED WORK SURFACE FOR PURPOSES OF LABOR LAW 240(1) (FOURTH DEPT).

The Fourth Department noted the the bed of a van is not considered an elevated work surface for purposes of Labor Law 240(1):

Plaintiff and defendant’s principal moved the loaner jack to the edge of the van bed in preparation for lifting the device onto a four-wheeled cart. Plaintiff was injured when he and defendant’s principal lifted the loaner jack to place it onto the cart. * * *

The bed of a truck or similar vehicle does not constitute an elevated work surface for purposes of Labor Law § 240 (1) … , and the protections of Labor Law § 240 (1) do not apply where a plaintiff is injured while unloading equipment from the bed of a vehicle … . Inasmuch as there is no dispute that plaintiff’s injury occurred as he helped lift the loaner jack from the bed of defendant’s vehicle, the court properly determined that Labor Law § 240 (1) does not apply. Triest v Nixon Equip. Servs., Inc., 2024 NY Slip Op 00714, Fourth Dept 2-9-24

Practice Point: Here the Fourth Department held that the bed of a van was not an elevated work surface for purposes of Labor Law 240(1).

 

THE COVID STATUTE OF LIMITATIONS TOLLS EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, explained how the COVID toll of the statute of limitations works:

“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” (id.). In response to the COVID-19 pandemic, on March 20, 2020, the Governor issued [an] Executive Order … , 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 . . . from the date of this order until April 19, 2020.” The Governor later issued a series of nine subsequent executive orders that extended the tolling period through November 3, 2020 … . Thus, here, the statute of limitations was tolled from March 20, 2020, at which time 289 days remained in the limitations period, until November 3, 2020, and thereafter the “statute of limitations began to run again, expiring on [August 19, 2021]” … . State of New York v Williams, 2024 NY Slip Op 00709, Fourth Dept 2-9-24

Practice Point: The number of days left on the statute of limitations when the COVID toll was imposed remains when the toll is lifted.

 

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