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WHEN A WITNESS’S IDENTIFICATION OF THE DEFENDANT FROM A PHOTOGRAPH SHOWN TO HIM BY THE POLICE IS DEEMED “CONFIRMATORY,” THAT CONCLUSION IS TANTAMOUNT TO A DETERMINATION AS A MATTER OF LAW THAT THE POLICE IDENTIFICATION PROCEDURE WAS NOT SUGGESTIVE AND COULD NOT HAVE LED TO THE MISIDENTIFICATION OF THE DEFENDANT BECAUSE THE WITNESS KNEW THE DEFENDANT WELL; HERE THE PROOF THE IDENTIFICATION WAS CONFIRMATORY WAS INSUFFICIENT; THE IDENTIFICATION TESTIMONY SHOULD HAVE BEEN SUPPRESSED; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, suppressing identification testimony and ordering a new trial, determined the evidence did not support the conclusion the witness’s identification of the defendant from a photograph shown to him by the police was “confirmatory.” Deeming an identification as confirmatory is tantamount to finding there is no chance the police identification procedure could lead to misidentification because the witness knows the defendant well:

“A court’s invocation of the ‘confirmatory identification’ exception is . . . tantamount to a conclusion that, as a matter of law, the witness is so familiar with the defendant that there is ‘little or no risk’ that police suggestion could lead to a misidentification” … . “In effect, it is a ruling that however suggestive or unfair the identification procedure might be, there is virtually no possibility that the witness could misidentify the defendant” … . “The People bear the burden in any instance they claim that a citizen identification procedure was ‘merely confirmatory’ ” … . “[T]he People must show that the protagonists are known to one another, or where . . . there is no mutual relationship, that the witness knows defendant so well as to be impervious to police suggestion” … . “[W]hether the exception applies depends on the extent of the prior relationship, which is necessarily a question of degree” … . In determining whether the witness is sufficiently familiar with the defendant, a court may consider factors such as “the number of times [the witness] viewed [the] defendant prior to the crime, the duration and nature of the encounters, the setting, the period of time over which the viewings occurred, the time elapsed between the crime and the previous viewings, and whether the two had any conversations” … .

Here … the evidence was insufficient to establish that the witness’s pretrial photo identification of defendant was confirmatory as a matter of law because, “[a]lthough the witness testified that he knew defendant because he had seen him ‘a couple of times’ at the barber shop, and that the two had each other’s phone numbers, [the witness] also testified that he did not know defendant well, that he knew him only by a common nickname, and that they never spoke again after the assault” … . … [T]he witness testified at trial that he had seen defendant a couple times at the barber shop … , and the evidence at the hearing similarly established that the witness had either interacted with defendant twice or approximately four or five times including a couple of times at the barber shop. … [T]he witness testified … that he knew defendant “not much but a little bit,” that he knew defendant only by his nickname and not his given name, and that he never heard from defendant again after the assault … . People v Alcaraz-Ubiles, 2025 NY Slip Op 03929, Fourth Dept 6-27-25

Practice Point: Consult this decision for insight into the quantum of evidence necessary to prove a witness’s identification of the defendant from a photograph shown to him by the police was “confirmatory” because the defendant was well known to the witness.

 

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A COURT’S POWER TO VACATE AN ARBITRATOR’S AWARD IS EXTREMELY LIMITED; AN ARBITRATOR’S INTERPRETATION OF A COLLECTIVE BARGAINING AGREEMENT CANNOT BE REVIEWED UNLESS IT IS “COMPLETELY IRRATIONAL;” HERE THE ARBITRATOR’S AWARD UPHOLDING THE SUSPENSION OF PETITIONER-DENTAL-HYGIENIST FOR HER FAILURE TO OBTAIN A COVID-19 VACCINE WAS CONFIRMED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the arbitrator’s award in this COVID-19 vaccine-mandate case should not have been vacated. The arbitrator found that the petitioner-employee, a dental hygienist, was properly suspended without pay and issued a Notice of Discipline for failure to obtain a COVID-19 vaccine. A court’s power to vacate an arbitration award is extremely limited:

We agree with respondent that the court “erred in vacating the award on the ground that it was against public policy because petitioner[] failed to meet [her] heavy burden to establish that the award in this employer-employee dispute violated public policy” … . We further agree with respondent that the court “erred in vacating the award on the ground that it was irrational” … . ” ‘An award is irrational if there is no proof whatever to justify the award’ ” … . Where, however, “an arbitrator ‘offer[s] even a barely colorable justification for the outcome reached,’ the arbitration award must be upheld” … . Here, there is no dispute that respondent directed petitioner to fully receive the COVID-19 vaccine by a specific date, that it apprised her that her continued employment was contingent upon her compliance, and that petitioner refused to be vaccinated by the required date. It is also undisputed that petitioner was never granted a reasonable accommodation that excused her compliance with the vaccine mandate. Consequently, the court erred in concluding that the arbitrator’s award was irrational … . To the extent petitioner argues that the arbitrator erred in not considering the propriety of respondent’s denial of petitioner’s request for a reasonable accommodation based on a pre-existing health condition, we note that the arbitrator interpreted the CBA as precluding any review of that decision. Inasmuch as we conclude that “the arbitrator’s ‘interpretation of the [CBA] [is] not . . . completely irrational, [it] is beyond [our] review power’ ” … . Finally, we note that the court was not permitted to vacate the award merely because it believed vacatur would better serve the interest of justice … . Matter of Davis (State of New York Off. of Mental Health), 2025 NY Slip Op 03910, Fourth Dept 6-27-25

Practice Point: Consult thee decisions for an explanation of the limits on a court’s review of an arbitration award.

 

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EVEN WHERE THERE IS EVIDENCE DEFENDANT INTENTIONALLY AIDED IN THE COMMISSION OF THE UNDERLYING FELONY, THE TRIAL JUDGE MUST INSTRUCT THE JURY ON THE FELONY-MURDER AFFIRMATIVE DEFENSE WHERE THERE IS EVIDENCE THE DEFENDANT DID NOT PARTICIPATE IN THE ACTS CAUSING THE VICTIM’S DEATH AND THERE IS EVIDENCE TO SUPPORT ALL THE ELEMENTS OF THE DEFENSE (FOURTH DEPT).

The Fourth Department, reversing the murder second degree conviction and ordering a new trial, determined the judge should have given the jury instruction for the affirmative defense to felony murder. When defendant’s back was turned, a co-defendant shot and killed a man standing at the passenger door of a vehicle. Defendant then knocked to the ground a woman standing at the driver’s side of the vehicle and stole her purse. Defendant was not armed and stated to the police he did not know the co-defendant intended to commit a crime:

It is an affirmative defense to felony murder that the defendant “(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (b) Was not armed with a deadly weapon, or any instrument, article or substance [*2]readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and (c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and (d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury” (Penal Law § 125.25 [3]). * * *

Even where, as here, the evidence shows that a defendant “intentionally aided [the primary assailant] in the commission of” the underlying felony, a trial court errs in refusing to charge the affirmative defense to felony murder where there is evidence that the defendant “did not participate in the acts causing the victim’s death” … . Here, the trial evidence was “reasonably supportive of the view” that defendant satisfied the four elements of the affirmative defense and, “regardless of evidence to the contrary, the court [was] without discretion to deny the charge, and error in this regard requires reversal and a new trial” … . People v Rosa, 2025 NY Slip Op 03907, Fourth Dept 6-27-25

Practice Point: Where there is evidence to support the elements of the affirmative defense to felony murder, the judge has no discretion and must instruct the jury on the defense, even where there is evidence to the contrary.

 

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THE CONCLUSORY STATEMENTS BY THE OWNER OF THE STOLEN CAR AND AN INVESTIGATING OFFICER FAILED TO DEMONSTRATE THE VALUE OF THE CAR WAS GREATER THAN $3000; CRIMINAL POSSESSION OF STOLEN PROPERTY THIRD DEGREE CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing the possession-of-stolen-property-third-degree conviction, determined the value of the stolen property, a vehicle, was not proven:

Here, in addition to photographs of the vehicle admitted in evidence, the victim testified that he purchased the subject 2010 Toyota Prius as a new vehicle for approximately $20,000, that he drove it 240,000 miles over the course of the subsequent 12 years, and that it was in a “[h]eavily used,” albeit running, condition when it was stolen. Although the victim testified that he had previously consulted the “blue book” when considering whether to sell the vehicle, he ultimately provided, based on the condition of the vehicle and unspecified research, only vague testimony that his “guess” or “approximate estimation” was that the vehicle was valued at $4,000, which constituted a “[c]onclusory statement[ or] rough estimate[ ] of value [that is] not sufficient to establish the value of the property” at the time of its theft … . Moreover, although a police officer testified that he estimated that the vehicle was valued between $6,000 and $10,000 based on his observations of the vehicle and consultation with the “blue book,” that testimony was also conclusory. Indeed, there was no evidence that the officer had accurately ascertained the “blue book” value—which inexplicably varied significantly from the victim’s estimate—by appropriately accounting for the age, mileage, and condition of the vehicle … . Based on the evidence of value in the record, we cannot conclude ” ‘that the jury ha[d] a reasonable basis for inferring, rather than speculating, that the value of the property exceeded the statutory threshold’ of $3,000″ … . Consequently, we conclude on this record that the evidence is legally insufficient to establish that the value of the stolen vehicle was greater than $3,000 … . People v Szurgot, 2025 NY Slip Op 03906, Fourth Dept 6-27-25

Practice Point: Here the conclusory statements by the owner of the stolen car and the investigating officer estimating the value of the car constituted legally insufficient evidence that the value of the stolen property was greater than $3000.

 

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DEFENDANT’S VEHICLE WAS STRUCK BY A VEHICLE WHICH WAS BEING CHASED BY POLICE AND WHICH FAILED TO OBEY A STOP SIGN; DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined defendant was entitled to summary judgment in this intersection traffic accident case. Plaintiff was a passenger in a Honda which was being chased by police. Defendant, whose car was struck by the Honda when the driver of the Honda failed to obey a stop sign, could justifiably assume the driver of the Honda would obey the stop sign. The dissent argued there was a question of fact whether defendant breached the duty to see what should be seen:

We respectfully disagree with our dissenting colleagues that defendant failed to meet his initial burden of establishing that he was free of comparative fault. … [Defendant testified] the collision occurred “instantly” after he first saw the car. * * * … [P]laintiff testified that he “blacked out” in the accident and did not know how it was caused. He was not even sure that the accident occurred at an intersection. All he could remember was the Honda proceeding straight with the police behind them and that he was “a little shaken up because [he had] never been in a high speed [chase].” That was “all [he could] remember, and [then] it was just boom.” Another occupant of the Honda testified that, as the Honda approached the intersection, “[i]t tried to stop, but . . . [they] were going a little too fast” and slid into the intersection. Defendant therefore established that the Honda never stopped at the stop sign before proceeding into the intersection and colliding with defendant’s vehicle. Inasmuch as the evidence submitted by defendant established that he had, at most, “only seconds to react” to the Honda that failed to yield the right-of-way, he established as a matter of law that he was not comparatively negligent … . Brown v City of Buffalo, 2025 NY Slip Op 03902, Fourth Dept 6-27-25

Practice Point: Here defendant’s vehicle was struck by a vehicle which was being chased by police and which did not obey a stop sign. The complaint against defendant, brought by a passenger in the vehicle which ran the stop sign, should have been dismissed. A two-justice dissent argued there was a question of fact whether defendant breached the duty of a driver to see what could be seen.

 

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ALL STATEMENTS MADE BY DEFENDANT AFTER HE RESPONDED “NO SIR.” WHEN ASKED IF HE WAS WILLING TO ANSWER QUESTIONS SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, vacating his plea, and granting part of the suppression motion, over a partial dissent, determined that all the statements defendant made after he responded “No sir” when asked if he was willing to answer questions should have been suppressed. The dissent argued statements made before defendant was read his Miranda rights should also be suppressed:

Defendant contends that the court erred in refusing to suppress his post-Miranda statements inasmuch as they were made after he invoked his right to remain silent by answering “No, sir” when asked if he would be willing to answer questions after being advised of his Miranda rights. We agree. ” ‘[I]n order to terminate questioning, the assertion by a defendant of [the] right to remain silent must be unequivocal and unqualified’ ” … . Whether a defendant’s “request was ‘unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request[,] including the defendant’s demeanor, manner of expression and the particular words found to have been used by the defendant’ ” … . Here, we conclude that defendant clearly communicated a desire to cease all questioning indefinitely when he responded “No, sir” to the verbal and written inquiries about whether he was willing to answer questions … .

We further agree with defendant that the court erred in refusing to suppress the holding cell statements, which were also made after defendant unequivocally and unqualifiedly asserted his right to remain silent. Contrary to the People’s assertion that the statements were made spontaneously at a time when the detective was seeking “pedigree information,” we conclude that the People did not establish that the detective’s questions “were reasonably related to the police’s administrative concerns” rather than “a disguised attempt at investigatory interrogation” … . People v Sullivan, 2025 NY Slip Op 03494, Fourth Dept 6-6-25

Practice Point: If a defendant is asked whether he is willing to answer questions and answers “no,” any subsequent statements must be suppressed.​

 

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ALTHOUGH THE EVIDENCE OF DEFENDANT’S CONSTRUCTIVE POSSESSION OF DRUGS AND DRUG PARAPHERNALIA FOUND IN HIS GIRLFRIEND’S APARTMENT WAS DEEMED LEGALLY SUFFICIENT, THE FINDING THAT DEFENDANT CONSTRUCTIVELY POSSESSED THE DRUGS AND PRAPHERNALIA WAS DEEMED AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s bench-trial conviction of criminal possession of a controlled substance and criminally using drug paraphernalia, determined the finding that defendant constructively possessed the drugs and paraphernalia located in his girlfriend’s apartment was against the weight of the evidence. Note that the Fourth Department concluded there was legally sufficient evidence of constructive possession:

… “[W]here there is no evidence that the defendant actually possessed the controlled substance or drug paraphernalia, the People are required to establish that the defendant exercised dominion or control over the property by a sufficient level of control over the area in which the contraband is found” … . The People may establish such constructive possession by circumstantial evidence … , “but a defendant’s mere presence in the area in which the contraband is discovered is insufficient to establish constructive possession” … .

Here, while the People adduced evidence establishing that defendant had a key to the apartment and stayed there “from time to time,” defendant was not a party to the lease and a search of the premises did not reveal anything to “specifically connect[ ] defendant to the places where the contraband was ultimately found” … . Moreover, none of the contraband was in plain view … and, thus, no statutory presumption of defendant’s knowing possession applied … .

We conclude that the weight of the evidence does not support a finding that defendant “exercised dominion or control over the [contraband] by a sufficient level of control over the area in which [it was] found” … . People v Smith, 2025 NY Slip Op 03454, Fourth Dept 6-6-25

Practice Point: Consult this decision for an example of when evidence is legally sufficient to withstand a motion for a trial order of dismissal but a finding based on that same evidence is deemed “against the weight of the evidence.”

 

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PLAINTIFF IN THIS TRAFFIC ACCIDENT CASE RAISED QUESTIONS OF FACT ABOUT WHETHER THE RELEASE HE SIGNED WAS INVALID DUE TO MUTUAL MISTAKE ABOUT THE EXISTENCE OF LUMBAR DISC INJURIES AND LEFT HIP DEGENERATIVE JOINT DISEASE; IN ADDITION, PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER THE RELEASE WAS INVALID BECAUSE IT WAS “NOT FAIRLY AND KNOWINGLY MADE;” CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff had raised questions of fact the validity of the release he signed in this traffic accident case:

A plaintiff seeking to invalidate a release on the ground that there was a mutual mistake with respect to the extent of the injuries that the plaintiff sustained must establish that, at the time the release was executed, “the parties were under ‘[a] mistaken belief as to the nonexistence of [a] presently existing injury’ ” … . “[I]n resolving claims of mutual mistake as to injury at the time of release, there has been delineated a sharp distinction between injuries unknown to the parties and mistake as to the consequence of a known injury” … . “A mistaken belief as to the nonexistence of presently existing injury is a prerequisite to avoidance of a release” … , whereas “[i]f the injury is known, and the mistake . . . is merely as to the consequence, future course, or sequelae of [the] known injury, then the release will stand” … . “Even where a releasor has knowledge of the causative trauma, . . . there must be actual knowledge of the injury. Knowledge of injury to an area of the body cannot cover injury of a different type and gravity” … . Accepting the facts as alleged in the complaint as true and according plaintiff the benefit of every possible favorable inference … , we agree with plaintiff that he sufficiently alleged facts on which to invalidate the release on the ground of mutual mistake inasmuch as, despite the fact that at the time the release was signed plaintiff had pain in the cervical spine and left hip and a diagnosis of a cervical strain, plaintiff alleged that neither party was aware of plaintiff’s lumbar disc injuries or left hip degenerative joint disease at that time … .

A plaintiff seeking to invalidate a release on the ground that it was not fairly and knowingly entered into must establish that “the release was signed by the plaintiff under circumstances that indicate unfairness, [or that] it was not ‘fairly and knowingly’ made” … . Again accepting the facts as alleged in the complaint as true and according plaintiff the benefit of every possible favorable inference … , we agree with plaintiff that, in the complaint and his affidavit in opposition to the motion, he sufficiently alleged facts on which to invalidate the release on the ground of whether the release was fairly and knowingly entered into inasmuch as plaintiff averred in his affidavit in opposition to the motion that, inter alia, he signed the release a short time after the accident occurred, he is unable to fluently read, understand or speak English, he did not understand the release, at the time he signed the release he did not have an attorney, he was not provided with an interpretation of the release, and he needed money for a vehicle in order to attend medical appointments … . Pastrana-Ortiz v Wemple, 2025 NY Slip Op 03425, Fourth Dept 6-6-25

Practice Point: Consult this decision for explanations of the criteria for invalidating a release (1) due to fraud, (2) due to mutual mistake, and (3) because it was “not fairly and knowingly made.”

 

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DEFENDANT PLED GUILTY TO TWO COUNTS OF CRIMINAL POSSESSION OF A WEAPON; MONTHS LATER THE PEOPLE INDICTED THE DEFENDANT ON A MURDER CHARGE, BASED ON THE SAME FACTS; COUNTY COURT PROPERLY DENIED DEFENDANT’S CPL 40.40 MOTION TO DISMISS THE MURDER INDICTMENT; THERE WAS A STRONG, COMPREHENSIVE DISSENT (FOURTH DEPT).

The Fourth Department, affirming County Court’s denial of defendant’s motion to dismiss the murder indictment (CPL 40.40(2)), determined that the criminal possession of a weapon charges to which defendant pled guilty were not a barrier to a subsequent murder charge based on the same underlying facts. There was a comprehensive dissent:

… [O]n or about November 20, 2021, the 90-year-old victim was shot and killed in her home. When police officers arrived at the scene, defendant, the victim’s granddaughter, was found in the house and appeared to be in distress. Defendant gave the officers conflicting accounts of what had happened to her grandmother but consistently stated that there were guns in the house that defendant had been playing with. A pistol and a revolver were recovered from the home. The People presented evidence to a grand jury relating to the two firearms. The evidence included witness testimony from various police officers about the crime scene, including that the victim appeared to have suffered a gunshot wound to the chest and about statements made to them by defendant. Defendant was indicted on two counts of criminal possession of a firearm (Penal Law § 265.01-b [1]), and she pleaded guilty to both counts. * * *

“CPL 40.40 prohibits a separate prosecution of joinable offenses that arise out of the same transaction and involve different and distinct elements under circumstances wherein no violation of the double jeopardy principle can validly be maintained but the equities nevertheless seem to preclude separate prosecutions” … . Under CPL 40.40 (1), “[w]here two or more offenses are joinable in a single accusatory instrument against a person by reason of being based upon the same criminal transaction, . . . such person may not, under circumstances prescribed in this section, be separately prosecuted for such offenses.” A “criminal transaction” is defined as “conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture” (CPL 40.10 [2]). “When (a) one of two or more joinable offenses [that are joinable in a single accusatory instrument against a person by reason of being based upon the same criminal transaction] is charged in an accusatory instrument, and (b) another is not charged therein, or in any other accusatory instrument filed in the same court, despite possession by the [P]eople of evidence legally sufficient to support a conviction of the defendant for such uncharged offense, and (c) either a trial of the existing accusatory instrument is commenced or the action thereon is disposed of by a plea of guilty, any subsequent prosecution for the uncharged offense is thereby barred” (CPL 40.40 [2] …). Under the facts and circumstances of this case, we conclude that the conduct related to possession of the firearms and that related to the murder involved separate and distinct criminal acts that were not part of the same criminal transaction … . Thus, the murder count was properly charged on a separate accusatory instrument and the People did not violate CPL 40.40.

From the dissent:

… [P]rosecution of the murder charge is barred by CPL 40.40 (2) because it is joinable under CPL 200.20 (2) (a) with the criminal possession of a firearm offenses charged in the prior indictment, and the People possessed legally sufficient evidence to support a murder conviction against defendant when she pleaded guilty to the firearm offenses. Where, as here, “the evidence against a person is in the prosecutor’s hands, [they] may not—as a player in a game of chance—deal out indictments one at a time” … . People v Harris, 2025 NY Slip Op 03419, Fourth Dept 6-6-25

Practice Point: Here defendant pled guilty to two counts of criminal possession of a weapon and was subsequently indicted for murder based on the same facts. The majority upheld the denial of the CPL 40.40(2) motion to dismiss the indictment, concluding the possession-of-a-weapon and murder charges were not part of the same criminal transaction. There was a strong dissent.

 

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THE ERRONEOUS “LOSS OF CHANCE” JURY INSTRUCTION REQUIRED REVERSAL; THE CHARGE USED THE PHRASES “SUBSTANTIAL FACTOR” AND “SUBSTANTIAL PROBABILITY” WHEN THE CORRECT PHRASE IS “SUBSTANTIAL POSSIBILITY” IN REFERENCE TO WHETHER A BETTER OUTCOME WAS DENIED DUE TO A DEVIATION FROM THE STANDARD OF CARE (FOURTH DEPT).

The Fourth Department, reinstating the complaint and ordering a new trial in this medical malpractice action, determined the “loss of chance” jury instruction was erroneous and required reversal:

As this Court has held since at least 2011, a “loss of chance instruction” is “entirely appropriate for . . . omission theories” in medical malpractice actions … . Although the Pattern Jury Instructions did not include a loss of chance pattern charge until 2023, i.e., after the second trial in this matter took place in December 2022, this Court had already issued numerous decisions prior to December 2022 indicating that “the loss of chance theory of causation . . . requires only that a plaintiff ‘present evidence from which a rational jury could infer that there was a “substantial possibility” that the patient was denied a chance of the better outcome as a result of the defendant’s deviation from the standard of care’ ” … .

Here, the court instructed the jury that, in order for plaintiff to recover under a loss of chance theory, it was plaintiff’s burden to establish that the act or omission alleged was a “substantial factor in bringing about the death.” The court also instructed the jury that, if it should find that “there was a substantial probability that the decedent . . . would have survived . . . if he had received proper treatment,” then it could find that defendants’ alleged negligence was a “substantial factor” in causing his death … .

… [T]he charge, as given, did not ” ‘adequately convey[ ] the sum and substance of the applicable law’ ” to the jury … . The primary issue at trial was whether defendants deviated from accepted standards of care in failing to timely treat decedent. Inasmuch as the “court did not adequately charge the jury concerning” the appropriate standard to determine that issue, we conclude that “the court’s failure to define [the correct] standard for the jury” cannot be considered harmless under the circumstances of this case … . Wright v Stephens, 2025 NY Slip Op 03416, Fourth Dept 6-7-25

Practice Point: The “loss of chance” medical malpractice jury instruction requires that plaintiff show there was a “substantial possibility” that a deviation from the standard of care precluded a better outcome. Here the judge used the phrase “substantial probability,” requiring reversal.

 

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