You are here: / Fourth Department

Tag Archive for: Fourth Department

,

A 911 CALLER WHO PROVIDES ONLY HIS FIRST NAME IS AN ANONYMOUS INFORMANT AND PROVIDES THE POLICE WITH ONLY THE COMMON-LAW RIGHT TO INQUIRE (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court’s denial of suppression and dismissing the indictment, determined the 911 call was from an anonymous informant, even though the caller provided his first name. Because the informant was anonymous, the information about a black man in an orange jacket carrying a handgun gave rise only to the common-law right to inquire. One of the officer’s approached with his gun drawn and the defendant ran, discarding the jacket and handgun:

As a preliminary matter, we conclude that the 911 caller, who identified himself only by a first name, was anonymous inasmuch as he provided no other information from which the police could identify or locate him , and he was not present at the scene when the police arrived  Indeed, it is not clear from the record that the name by which the caller identified himself was the caller’s real first name. Under the circumstances, we analyze the propriety of the police conduct under the law applicable to tips from anonymous informants. * * *

… [T]he anonymous tip was simply that of a man with a gun at a particular location. It follows that the officer’s gunpoint stop of defendant was unlawful, as was the officers’ subsequent pursuit of defendant after he took flight. People v Johnson, 2023 NY Slip Op 04493, Fourth Dept 9-8-23

Practice Point: A 911 caller who only provides his first name is an anonymous informant. Any information provided by the caller triggers only a police officer’s common-law right to inquire. Here the officer approached with his gun drawn. The gun discarded when the defendant ran should have been suppressed.

 

THE MAJORITY CONCLUDED PLAINTIFF WAS DOING ROUTINE MAINTENANCE WHICH WAS NOT PART OF A CONSTRUCTION OR RENOVATION PROJECT WHEN HE WAS ELECTROCUTED AND FELL FROM A LADDER; THEREFORE THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION WERE DISMISSED; THE TWO-JUSTICE DISSENT ARGUED PLAINTIFF WAS “CLEANING” WITHIN THE MEANING OF LABOR LAW 240(1) AND WAS DOING CONSTRUCTION OR RENOVATION WORK WITHIN THE MEANING OF LABOR LAW 241(6) (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the work plaintiff was doing was not covered by Labor Law 240(1) or 241(6). Primosch v Peroxychem, LLC, 2023 NY Slip Op 04285, Fourth Dept 8-11-23. The Fourth Department concluded plaintiff’s work was routine maintenance, not cleaning covered by Labor Law 240(10, and was not done in connection with construction or renovation work. In a separate decision which incorporated the first, two justices disagreed in a dissent, finding that plaintiff’s work was “cleaning” covered by Labor Law 240(1) and was part of construction or renovation work. The dissent lays out in some detail the proof requirements for “cleaning” within the meaning of Labor Law 240(1). Apparently plaintiff was on a ladder cleaning electrical equipment when he was electrocuted and fell from the ladder. Primosch v Peroxychem, LLC, 2023 NY Slip Op 04286, Fourth Dept 8-11-23

Practice Point: The dissent includes a detailed explanation of what constitutes “cleaning” within the meaning of Labor Law 240(1).

 

, ,

THE GRANDPARENTS’ PETITION FOR VISITATION SHOULD NOT HAVE BEEN DENIED ABSENT A FULL BEST INTERESTS OF THE CHILD HEARING (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined the court should not have dismissed the grandparents’ petition for visitation before holding a best interests of the child hearing:

… [T]he court erred in granting respondents’ motion and in terminating the hearing before petitioners had completed the presentation of their case … . “[E]ven where . . . a grandparent has established standing to seek visitation, ‘a grandparent must then establish that visitation is in the best interests of the grandchild . . . Among the factors to be considered are whether the grandparent and grandchild have a preexisting relationship, whether the grandparent supports or undermines the grandchild’s relationship with his or her parents, and whether there is any animosity between the parents and the grandparent’ ” … . Visitation and “custody determinations should ‘[g]enerally’ be made ‘only after a full and plenary hearing and inquiry’ ” … , “[u]nless there is sufficient evidence before the court to enable it to undertake a comprehensive independent review of the child[‘s] best interests” … . Upon our review of the record, we conclude that, “[a]bsent a[ full] evidentiary hearing, . . . the court here lacked sufficient evidence . . . to enable it to undertake a comprehensive independent review of the [children]’s best interests” … . We therefore reverse the order, deny the motion, reinstate the petitions, and remit the matter to Supreme Court for a full evidentiary hearing on the petitions. DeMarco v Severance, 2023 NY Slip Op 04284, Fourth Dept 8-11-23

Practice Point: The grandparents’ petition for visitation should not have been dismissed absent a full best interests of the child hearing.

 

, ,

THE CHILD HAD LIVED WITH HIS GRANDPARENTS FOR HIS ENTIRE LIFE; THE GRANDPARENTS DEMONSTRATED EXTRAORDINARY CIRCUMSTANCES NECESSITATING A BEST INTERESTS OF THE CHILD HEARING PRIOR TO RULING ON MOTHER’S PETITION FOR A MODIFICATION OF CUSTODY; TWO-JUSTICE DISSENT; MATTER REMITTED FOR A HEARING (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, over a two-justice dissent, determined the grandparents established extraordinary circumstances necessitating a best interests hearing before a ruling on mother’s request for a modification of custody. Mother sought to regain custody of the child who was eight years old and had resided with the grandparents for his entire life:

It is undisputed that the child, who was eight years old at the time of the hearing, had lived with the grandparents for his entire life in the only home he has ever known; the child expressed a strong desire to continue residing with his grandparents and the AFC adheres to that position on appeal; the mother and the father both suffered from severe substance abuse problems for years and were unable to care for the child on their own; the mother failed to contact the child for a period of 18 months before resuming visitation in January 2018; the child’s half-sister also resided with the grandparents and the child developed a sibling relationship with her; and “the grand[parents] ha[ve] taken care of the child for most of his life and provided him with stability” …  Additionally, according to the AFC, the child had “developed a strong emotional bond with the grand[parents]” … .

… [W]e conclude that, “even if the prolonged separation alone is entitled to little significance here, the combination of that factor along with others present on this record sufficiently establish the existence of extraordinary circumstances” … , and that the court’s contrary determination is not supported by a sound and substantial basis in the record.

… [W]e remit the matter to Family Court for a new hearing to determine whether the modifications of the prior order sought by the mother are in the best interests of the child … . Matter of Tuttle v Worthington, 2023 NY Slip Op 04282, Fourth Dept 8-11-23

Practice Point: The child’s grandparents made a showing of extraordinary circumstances requiring a best interests of the child hearing before ruling on mother’s petition for a modification of custody. The child, eight years old, had lived his entire life with his grandparents.

 

THE OWNER OF LAND HAS AN ABSOLUTE PROPERTY RIGHT IN THE SURFACE WATERS COLLECTED ON THAT LAND AND CAN DIVERT IT BEFORE IT FLOWS INTO A DEFINITE WATER COURSE (A STREAM, FOR EXAMPLE) (FOURTH DEPT).

The Fourth Department, in this dispute over water rights, noted that the Monroe County Water Authority (MCWA) owned surface water on its land and could divert it before it entered a definite water course:

… [W]e agree with MCWA that the court erred in determining that plaintiffs ( a golf course) have riparian rights to the surface waters collecting on MCWA’s property. “The owners of land on a water-course, are not owners of the water which flows in it” … , and “the law has always recognized a wide distinction, between the right of an owner, to deal with surface water falling or collecting on [its] land, and [an owner’s] right in the water of a natural water-course” … . “In such [surface] water, before it leaves [the owner’s] land and becomes part of a definite water-course, the owner of the land is deemed to have an absolute property, and [the owner] may appropriate it to [its] exclusive use, or get rid of it in any way [it] can, provided only that [the owner] does not cast it by drains, or ditches, upon the land of [its] neighbor; and [the owner] may do this, although by so doing [it] prevents the water reaching a natural water-course, as it formerly did, thereby occasioning injury to . . . other proprietors on the stream” … . Webster Golf Club, Inc. v Monroe County Water Auth., 2023 NY Slip Op 04280, Fourth Dept 8-11-23

Practice Point: A property owner owns the surface water collected on the property and can divert the surface water before it reaches a definite water course like a stream or river.

 

, , , ,

THE ORDER DENYING DEFENDANTS THE ABILITY TO ASSERT CPLR ARTICLE 16 DEFENSES IS APPEALABLE; DEFENDANTS SHOULD NOT HAVE BEEN PRECLUDED FROM ASSERTING THE CPLR ARTICLE 16 DEFENSES ATTRIBUTING LIABILITY IN THIS MEDICAL MALPRACTICE ACTION TO NON-PARTIES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that defendants in this medical malpractice action should not have been precluded from asserting the negligence of non-parties (CPLR article 16 defenses) as an affirmative defenses. The court noted that, although the a ruling on a motion in limine is generally not appealable, a ruling on a motion which seeks to limit the legal theories which can be asserted is appealable:

“Generally, an order ruling [on a motion in limine], even when made in advance of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission” … . There is, however, “a distinction between an order that ‘limits the admissibility of evidence,’ which is not appealable . . . , and one that ‘limits the legal theories of liability to be tried’ or the scope of the issues at trial, which is appealable” … . * * *

… [D]efendants are entitled to assert their CPLR article 16 defenses regarding the nonparty providers. “As provided in CPLR 1601 (1), a defendant may raise the CPLR article 16 defense regarding a nonparty tortfeasor, provided that the plaintiff could obtain jurisdiction over that party” … . Here, defendants are entitled to raise their pleaded affirmative defenses pursuant to CPLR article 16 … because plaintiff could have sought to maintain an action against the nonparty providers in Supreme Court … .

The crux of the issue on appeal is whether defendants were required, in response to plaintiff’s demands for bills of particulars, to particularize the pleaded CPLR article 16 defense, and thus whether the court properly precluded them from asserting that defense at trial when they did not timely particularize that defense. We conclude that no such particularization was required under the circumstances of this case, and thus that the court erred in precluding defendants from asserting the CPLR article 16 defense at trial. Harris v Rome Mem. Hosp., 2023 NY Slip Op 04273, Fourth Dept 8-11-23

Practice Point: Motions in limine generally are not appealable. But motions seeking to preclude legal theories of liability are appealable.

Practice Point: Under the unique circumstances of this case, defendants in this medical malpractice action should not have been precluded from presenting CPLR article 16 affirmative defenses on the ground the defenses were not particularized in the bill of particulars. It was not clear the demands related to the CPLR article 16 affirmative defenses.

 

,

THE SEARCH WARRANT FOR DEFENDANT’S CELL PHONE DID NOT MEET THE PARTICULARITY REQUIREMENT, THE EVIDENCE GLEANED FROM THE CELL PHONE SHOULD HAVE BEEN SUPPRESSED; NEW TRIAL ORDERED; KIDNAPPING SECOND DEGREE IS AN INCLUSORY CONCURRENT COUNT OF KIDNAPPING SECOND DEGREE AS A SEXUALLY MOTIVATED FELONY, THE COUNTS MUST BE SUBMITTED TO THE JURY IN THE ALTERNATIVE (FOURTH DEPT). ​

he Fourth Department, reversing defendant’s conviction, determined the search warrant for defendant’s cell phone was overly broad. Therefore the evidence derived from the cell phone should have been suppressed. The court noted that kidnapping in the second degree is an inclusory concurrent count of kidnapping in the second degree as a sexually motivated felony … and that the court upon retrial should submit to the jury the kidnapping in the second degree count in the alternative only:

A warrant must be “specific enough to leave no discretion to the executing officer” … . To meet the particularity requirement, a warrant must (1) “identify the specific offense for which the police have established probable cause,” (2) “describe the place to be searched,” and (3) “specify the items to be seized by their relation to designated crimes” … . Here, the search warrant simply stated that the police were directed to search defendant’s cellular phone for “digital and/or electronic evidence from August 13, 2016 to August 15, 2016.” The warrant contained no language incorporating any other documents or facts. Significantly, the search of the phone was not restricted by reference to any particular crime. Thus, the search warrant failed to meet the particularity requirement and left discretion of the search to the executing officers … . People v Saeli, 2023 NY Slip Op 04268, Fourth Dept 8-11-23

Practice Point: A search warrant for a cell phone which simply states to search for “digital and/or electronic evidence from August 13, 2016 to August 15, 2016” does not meet the particularity requirement (the warrant is overly broad).

Practice Point: Kidnapping in the second degree is an inclusory concurrent count of kidnapping in the second degree as a sexually motivated felony.

 

, ,

THE DEFENDANT’S ACCOMPLICE TO MURDER CONVICTION RESTED ENTIRELY ON THE TESTIMONY OF A JAILHOUSE INFORMANT WHICH WAS AT ODDS WITH THE SURVEILLANCE VIDEO; THE TESTIMONY OF THE INFORMANT WAS REJECTED, RENDERING DEFENDANT’S CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s accomplice-to-murder conviction, determined the conviction was against the weight of the evidence. There was evidence the shooter came to and left the area where the shooting took place in a white sedan. Defendant owned a white sedan but it was not possible to tell whether the white sedan in the surveillance video was defendant’s. The People presented the testimony of a jailhouse informant who claimed defendant admitted dropping off and picking up the shooter. But the evidence given by the informant did not comport with the video surveillance of the white sedan and was therefore rejected by the Fourth Department:

… [W]e find that the version of events that the informant attributed to defendant is completely at odds with the video evidence establishing that the codefendant took an efficient, one-block circuitous route from the side street where the white sedan parked to the bar and then back to the sedan. The timing of events as established by the video evidence is too tight to permit any potential diversions or alternate routes to have been taken by the codefendant, much less the irrational choice of running along a busy thoroughfare several blocks away from the white sedan. Further, the informant’s testimony is too specific to permit the conclusion that any inconsistency between it and the video evidence is the innocuous result of an imprecise account. We therefore conclude that this is an appropriate case to substitute our own credibility determination for that made by the jury and find that the informant’s testimony is not credible ,,, . Absent the informant’s testimony, there is no evidence from which to reasonably infer that defendant shared the codefendant’s intent to cause the death of another person … or that defendant knew that the codefendant was armed at the time defendant transported him to the bar … . People v Ramos, 2023 NY Slip Op 03755, Fourth Dept 7-6-23

Practice Point: This decision is a clear example of the difference between a “legal sufficiency of the evidence” and a “weight of the evidence” analysis. Here the informant’s testimony describing a jailhouse confession by the defendant rendered the evidence legally sufficient. However the informant’s testimony was deemed incredible because it conflicted with the video evidence. The informant’s testimony was rejected by the appellate court rendering the conviction against the weight of the evidence.

Practice Point: If you search this website by clicking on the category “Criminal Law” and type “weight of the evidence” in the search bar, you will find many cases which are decided using the “weight of the evidence” label but which actually find the evidence legally insufficient. Appellate courts are now willing to reverse convictions as against the weight of the evidence where the legal sufficiency argument was not raised in the trial order of dismissal motion or where the TOD motion was not renewed upon the close of proof. Therefore, if there are deficiencies in the proof at trial, even if the legal insufficiency argument cannot be raised on appeal because it was not preserved, the “weight of the evidence” argument should be raised.

 

 

, ,

PURSUANT TO THE “MINISTERIAL EXCEPTION,” THE HOSTILE WORK ENVIRONMENT COMPLAINT BY A PRIEST AGAINST THE DIOCESE OF BUFFALO WAS DISMISSED (FOURTH DEPT).

The Fourth Department, determined the “ministerial exception” to employment discrimination applied to petitioner’s complaint against his former employer, the Diocese of Buffalo. Petitioner, a priest serving as pastor of a church, alleged he was subjected to  a  “hostile work environment:”

Here, SDHR [New York State Division of Human Rights] determined that it lacked jurisdiction over petitioner’s complaint inasmuch as petitioner had been a priest serving as the pastor of a church and the ministerial exception barred his claims. Inasmuch as there is no controlling United States Supreme Court or New York precedent and the federal courts that have addressed the issue are divided on the extent to which the ministerial exception applies to claims of a hostile work environment, we conclude that SDHR’s determination with respect to the hostile work environment claim is not arbitrary and capricious or affected by an error of law … . Matter of Ibhawa v New York State Div. of Human Rights, 2023 NY Slip Op 03585, Fourth Dept 6-30-23

Practice Point: There is a “ministerial exception” to employment discrimination claims by a priest against the diocese-employer. Here the priest’s hostile-work-environment petition was properly dismissed based on the exception.

 

,

RESPONDENT JUVENILE WAS NOT INFORMED THE FACT FINDING HEARING IN THIS JUVENILE DELINQUENCY PROCEEDING WOULD GO FORWARD IN HIS ABSENCE (THE PARKER WARNING); THEREFORE RESPONDENT DID NOT WAIVE THE RIGHT TO BE PRESENT AND THE ADJUDICATION WAS REVERSED BECAUSE OF HIS ABSENCE (FOURTH DEPT). ​

​The Fourth Department, reversing Family Court in this juvenile delinquency proceeding, determined that the respondent juvenile was not informed that the fact finding hearing would proceed in his absence. Therefore he did not not waive his right to be present at the hearing:

Respondent contends that the court violated his constitutional and statutory right to be present at the fact-finding hearing. We agree, and we therefore reverse the order and remit the matter to Family Court for further proceedings on the petition. “[R]espondents in juvenile delinquency proceedings have a constitutional and statutory right to be present at all material stages of court proceedings, including fact-finding hearings … . Respondents “may, however, waive the right to be present at such proceedings” … . ” ‘In order to effect a voluntary, knowing and intelligent waiver, the [respondent] must, at a minimum, be informed in some manner of the nature of the right to be present at [the fact-finding hearing] and the consequences of failing to appear’ for that hearing” … . Here, the court did not advise respondent that he had a right to be present at the fact-finding hearing and that the consequence of his failure to appear would be that the fact-finding hearing would proceed in his absence (see generally People v Parker, 57 NY2d 136, 141 [1982]). We therefore conclude on this record that there is no voluntary, knowing, and intelligent waiver of respondent’s right to be present at the hearing … . Matter of Timar P. (James B.), 2023 NY Slip Op 03654, Fourth Dept 6-30-23

Practice Point: The Parker warning is required in juvenile delinquency proceedings in Family Court.

 

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