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ALTHOUGH PLAINTIFF TESTIFIED SHE DID NOT KNOW WHAT CAUGHT HER HEEL AND CAUSED HER TO FALL, THE CIRCUMSTANTIAL EVIDENCE THAT A MIS-LEVELED CONCRETE SLAB CAUSED THE FALL COULD ALLOW THE JURY TO DETERMINE THE CAUSE WITHOUT RESORT TO SPECULATION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that, defendant’s motion for summary judgment in this slip and fall case should have been denied. Plaintiff testified “something caught her heel” when she was walking backwards from a gravel driveway to the garage and she fell onto concrete in the garage. Plaintiff could not identify the cause of her fall, but the circumstantial evidence indicated her heel caught on the mis-leveled concrete slab:

​… [W]e conclude that defendant failed to establish as a matter of law that the cause of plaintiff’s fall was speculative … . ” ‘Although [mere] conclusions based upon surmise, conjecture, speculation or assertions are without probative value . . . , a case of negligence based wholly on circumstantial evidence may be established if the plaintiff[ ] show[s] facts and conditions from which the negligence of the defendant[ ] and the causation of the accident by that negligence may be reasonably inferred’ ” … .

Although plaintiff testified that she did not know what caught her heel and caused the fall, she also stated that she fell in the immediate vicinity of the entry to the garage from the gravel driveway and landed inside the garage. Viewing the evidence in the light most favorable to plaintiff as the nonmoving party … , we conclude that the testimony and the allegations in the bill of particulars regarding the mis-leveled concrete slab “render[ed] any other potential cause of her fall ‘sufficiently remote or technical to enable [a] jury to reach [a] verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence’ ” … . Withers v Roblee, 2025 NY Slip Op 05620, Fourth Dept 10-10-25

Practice Point: Here the plaintiff could not say precisely what “caught her heel” and caused her to fall, but the circumstantial evidence was such that a jury could determine the cause without resort to speculation. Defendant’s motion for summary judgment should have been denied.

 

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THE DEFENDANT SAID “HE DIDN’T WANT TO TALK ABOUT THAT …” AND THE POLICE STOPPED QUESTIONING HIM; AN HOUR AN A HALF LATER THE POLICE RESUMED QUESTIONING WITHOUT RE-READING THE MIRANDA RIGHTS; THOSE STATEMENTS SHOULD HAVE BEEN SUPPRESSED; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined the statements made by defendant after he invoked his right to remain silent should have suppressed. The questioning stopped after defendant said “he didn’t want to talk about that …”. The questioning resumed an hour and a half later without a re-reading of defendant’s Miranda rights:

… [A]fter the police told defendant that they considered him a suspect in the underlying shooting and asked him “for his side of the story,” defendant continually stated that “he didn’t want to talk about that and [that] he’d rather take his chances.” We conclude that defendant thereby unequivocally invoked his right to remain silent … inasmuch as “[n]o reasonable police officer could have interpreted that statement as anything other than a desire not to talk to the police” … . Indeed, the actions of the police in response to defendant’s statement demonstrated that they understood his statement to be an unequivocal invocation of his right to remain silent—i.e., they promptly ceased their questioning of defendant and left the interrogation room for a prolonged period of time … . Defendant’s responses to a police officer when the officer resumed the interrogation—which occurred about an hour and a half after the prior questioning ceased—did not negate defendant’s prior unequivocal invocation of his right to remain silent because the police officer failed to reread the Miranda warnings to defendant before resuming the interrogation and therefore failed to scrupulously honor his right to remain silent … . People v Surles, 2025 NY Slip Op 05603, Fourth Dept 10-10-25

Practice Point: Here the police stopped questioning defendant when he said “he didn’t want to talk about that …”. An hour and half later the police resumed questioning without re-reading the Miranda rights. Those statement should have been suppressed.

 

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THE JUDGE’S ASSESSING SORA RISK-LEVEL POINTS NOT REQUESTED BY THE PEOPLE VIOLATED DEFENDANT’S RIGHT TO DUE PROCESS OF LAW; THE JUDGE FAILED TO MAKE THE FINDINGS REQUIRED BY THE CORRECTION LAW FOR AN UPWARD DEPARTURE; DETERMINATION VACATED (FOURTH DEPT).

The Fourth Department, reversing the SORA risk level determination, held that the judge violated defendant’s right to due process of law by assessing points that were not requested by the People, and violated the Correction Law requirements for imposing an upward departure:

Although defendant failed to object to the assessment of points … when the court rendered its oral decision, we “review defendant’s contention in the interest of justice in light of the substantial infringement upon [her] due process and statutory rights” … .

… [T]he court failed to comply with the requirement of Correction Law § 168-n (3) that it set forth the findings of fact and conclusions of law upon which it based its decision to grant the People’s request for an upward departure … . In its decision, the court merely concluded, under the first part of the relevant three-part analysis, that the People had identified “aggravating . . . circumstances . . . of a kind or to a degree not adequately taken into account by the guidelines” … . At no time in its decision did the court render a determination on the other two parts of the relevant analysis. Rather, after identifying the aggravating circumstances, the court conclusorily granted the People’s application for an upward departure, without ever “weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant’s dangerousness and risk of sexual recidivism” … . People v Ridley, 2025 NY Slip Op 05599, Fourth Dept 10-10-25

Practice Point: If a judge assesses SORA risk-level points not requested by the People, the defendant’s due process rights are violated.

Practice Point: In granting an upward departure in a SORA risk-level-assessment proceeding, the judge must make the findings required by the Correction Law.

 

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THE PEOPLE DID NOT DEMONSTRATE THEY EXERCISED DUE DILIGENCE IN BRINGING A POLICE OFFICER TO COURT TO TESTIFY AT A PRETRIAL HEARING; THE 33-DAY DELAY WAS UNREASONABLE AND CHARGEABLE TO THE PEOPLE; DEFENDANT’S SPEEDY TRIAL MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department determined defendant’s speedy trial motion should have been granted and the indictment was dismissed. A 33-day delay in having a police officer come to court to testify at a pretrial hearing was deemed unreasonable and chargeable to the People:

The People announced readiness in July 2021 and, subsequently, a combined Huntley and Mapp hearing was held on December 8, 2021. After two officers from the Rochester Police Department testified at that hearing, the prosecutor stated that a third officer was “currently not allowed to come to court due to an ongoing investigation by the Attorney General’s Office.” The prosecutor said that he was unsure of “who” was telling the officer “not to come to court.” The court thus adjourned the hearing and, ultimately, the officer testified on January 10, 2022, i.e., 33 days later.

… The People failed to establish that they exercised due diligence, i.e. ” ‘credible, vigorous activity’ to make the witness available” … . People v Beason, 2025 NY Slip Op 05598, Fourth Dept 10-10-25

Practice Point: Here a 33-day unexplained delay in bringing a police officer to court to testify at a pretrial hearing was deemed unreasonable and chargeable to the People.

 

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IN THIS CHILD VICTIMS ACT CASE BASED ON ALLEGATIONS OF SEXUAL ABUSE BY A TEACHER IN THE 70’S, EVIDENCE SUBMITTED BY PLAINTIFF AND DEFENDANTS RAISED QUESTIONS OF FACT WHICH SUPPORTED THE NEGLIGENT SUPERVISION, TRAINING AND HIRING AND RETENTION CAUSES OF ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this Child Victims Act case, determined the negligent supervision, negligent training, and negligent hiring and retention causes of action against the school district, based on allegations of sexual abuse of plaintiff by a music teacher in the 70’s, should not have been dismissed. The evidence presented by the plaintiff and defendants included the observed behavior of the music teacher by another teacher, the dismissal of the music teacher from other schools, the conflicting information about arrests in the teacher’s employment applications, the suspicions of other teachers and the failure to report those suspicions:

… [P]laintiff submitted an affidavit wherein he averred that on two occasions the music teacher entered the boys’ locker room while plaintiff and his classmates were changing and that on each occasion the gym teacher instructed the music teacher to leave. Although the gym teacher denied observing the music teacher in the boys’ locker room during his deposition, plaintiff submitted an affidavit that the gym teacher executed in an unrelated case wherein he averred that he had “heard rumors from many students” that the music teacher had a sexual interest in the male students at the school and that he was “suspicious that [the music teacher] may have had inappropriate relationships with students.” The affidavit reflects that the gym teacher was “vigilant” and “kept an eye on” the music teacher—meeting weekly with another coach to “see if the other had witnessed any inappropriate behavior” by the music teacher—but nonetheless permitted the music teacher to transport students to and from games and swim meets.

* * * [[P]laintiff submitted the music teacher’s testimony, wherein he testified that he had “always” had students visit him at his home and that other teachers were aware that students would visit him at his home, where the abuse of plaintiff is, in part, alleged to have occurred … . …

Plaintiff also submitted an expert affidavit asserting that defendants failed to appropriately train and supervise other teachers and staff to report their knowledge of inappropriate behavior. * * *

… [D]efendants submitted the music teacher’s employment applications, wherein he submitted contradictory responses about whether he had been arrested; a reference from the principal of a junior high school where the music teacher had taught, who stated that the music teacher had been “dismissed or denied tenure” and “had a tendency to more or less pal with his seventh grade male students”; and a reference completed by a school counselor employed by a different district, who stated that the music teacher had been “dismissed or denied tenure” and that she would not employ him as a teacher in her school system. Harper v Buffalo City Sch. Dist., 2025 NY Slip Op 05595, Fourth Dept 10-10-25

Practice Point: Consult this decision for insight into the nature of the proof which will raise questions of fact in a Child Victims Act case against a school district alleging negligent supervision, training, hiring and retention.

 

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THE INSTALLATION OF MOTION-ACTIVATED SECURITY LIGHTS WHICH SHINE INTO A NEIGHBOR’S PROPERTY CAN CONSTITUTE A PRIVATE NUISANCE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the nuisance cause of action, based upon defendants’ installation of flood lights, should not have been dismissed:

“To establish a claim of private nuisance, a plaintiff must show: ‘an interference (1) substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with [the plaintiff’s] property right to use and enjoy land, (5) caused by another’s conduct in acting or failure to act’ ” … . The interference “must not be fanciful, slight or theoretical, but certain and substantial, and must interfere with the physical comfort of the ordinarily reasonable person” … .

… [T]he amended complaint alleged that a nuisance arose from, among other things, flood lights in defendants’ backyard that shined light onto plaintiff’s property at night. According to plaintiff, the lights constituted a “substantial, intentional and unreasonable interference” with his property rights. In support of that part of their motion seeking summary judgment, defendants acknowledged that they installed motion-activated security lights in their backyard but contended in a conclusory fashion that the lights do not “amount to nuisance to a reasonable person.” Defendants did not identify where on their property the lights are stationed, nor did they dispute that they shined light onto plaintiff’s property. Thus, defendants failed to establish as a matter of law that the lights did not constitute a nuisance. Marrano v Dusza, 2025 NY Slip Op 05592, Fourth Dept 10-10-25

Practice Point: Lights which shine into a neighbor’s property can constitute a private nuisance.

 

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THE ADDITIONAL FIVE-YEAR CONSECUTIVE SENTENCES PURSUANT TO PENAL LAW 265.09 (2) DID NOT APPLY TO FIVE COUNTS OF THE INDICTMENT; THE APPEAL OF AN ILLEGAL SENTENCE DOES NOT REQUIRE PRESERVATION (FOURTH DEPT).

The Fourth Department determined several of the additional consecutive five-year sentences pursuant to Penal Law 265.09( 2) were illegal. The court noted that preservation is not required for the appeal of an illegal sentence:

… [Penal Law 265.09(2)] provides in relevant part that, “[n]otwithstanding any other provision of law to the contrary, when a person is convicted of criminal use of a firearm in the first degree as defined in [Penal Law § 265.09 (1)], the court shall impose an additional consecutive sentence of five years to the sentence imposed on the underlying class B violent felony offense where the person convicted of such crime displays a loaded weapon from which a shot, readily capable of producing death or other serious injury may be discharged, in furtherance of the commission of such crime” … . …

… [T]he sentence enhancement provision does not apply to his conviction of burglary in the first degree under count 2… and robbery in the first degree under count 5 … . Given that the use or display of a firearm is an element of each of those crimes and “the use or display of that same firearm cannot also be the predicate for criminal [use] of a firearm in the first degree” … , neither of those crimes may serve as “the underlying class B violent felony offense” upon which the court could impose an additional consecutive sentence of five years … .

… [T]he sentence enhancement provision does not apply to his conviction of burglary in the first degree under count 3… . * * * Defendant’s conviction under Penal Law § 265.09 (1) (a) “did not involve the display of a loaded, operable weapon” … , and the victim—the only person other than defendant who was present in the room where the shooting occurred—had no recollection of defendant’s entry into the apartment or of the events that transpired during the shooting that caused his physical injuries … . People v Clea, 2025 NY Slip Op 05590, Fourth Dept 10-10-25

Practice Point: Consult this decision for insight into when the five-year consecutive-sentence enhancement for display of a fireman is not allowed by Penal Law 265.09 (2).

 

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THE SEARCH OF THE UNCONSCIOUS OR SLEEPING DEFENDANT’S POCKETS WAS NOT A SEARCH INCIDENT TO ARREST OR A SEARCH PURSUANT TO THE MENTAL HYGIENE LAW; THE SEIZED COCAINE SHOULD HAVE BEEN SUPPRESSED; INDICTMENT DISMISSED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea and dismissing the drug-possession indictment, determined the police officer’s search of defendant’s pocket while he was unconscious was not a valid search incident to arrest a was not justified under the Mental Hygiene Law. The police entered the apartment with the tenant’s permission to search for a person for whom they had an arrest warrant. The tenant told the police the defendant had the same first name as the name on the warrant but that defendant was not the person they were looking for. Defendant was sitting at the kitchen table either unconscious or asleep. When the police officer couldn’t wake the defendant up, the officer searched his pockets and found cocaine:

The officers called an ambulance for defendant, but when the ambulance arrived, the medical personnel were able to wake defendant and determined that he did not need medical care. During his testimony at the suppression hearing, the officer asserted that Mental Hygiene Law § 22.09 permitted him to search defendant inasmuch as he was planning to call an ambulance to transport defendant. The suppression court determined that the officer’s search of defendant’s person was justified by Mental Hygiene Law § 22.09 and that the search was analogous to a search incident to arrest.

… The People correctly concede that the officer did not believe that defendant had committed a crime before he searched defendant’s pockets, and thus the search was not conducted incident to a lawful arrest … . … [W]e cannot conclude that the police officer was acting pursuant to Mental Hygiene Law § 22.09 because, contrary to the People’s assertion, there was insufficient evidence that defendant was in danger of harming himself or others … . People v Ruise, 2025 NY Slip Op 05589, Fourth Dept 10-10-25

Practice Point: For a warrantless search of a person to be justified under the Mental Hygiene Law there must be evidence the defendant is in danger of harming himself or others.

 

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PLAINTIFF ALLEGED A DEFECTIVELY MAINTAINED AND/OR INSTALLED TRAFFIC SIGNAL ALLOWED A SIGNAL HEAD IN EACH DIRECTION TO SHOW A GREEN LIGHT, THEREBY CAUSING THE INTERSECTION COLLISION; ALTHOUGH THE TOWN DEMONSTRATED A LACK OF NOTICE OF THE CONDITION OF THE TRAFFIC SIGNAL, THE PLAINTIFF RAISED QUESTIONS OF FACT ON THE “FAILURE TO MAINTAIN THE INTERSECTION IN A SAFE CONDITION” AND “CREATION OF A DANGEROUS CONDITION” CAUSES OF ACTION, AND THE NEGLIGENCE CAUSE OF ACTION WAS SUFFICIENTLY ALLEGED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court and reinstating the complaint, determined the complaint and bill of particulars sufficiently alleged negligence and questions of fact were raised about whether the county failed to properly maintain a traffic signal and created a dangerous condition. The plaintiff alleged a pipe holding the traffic signal broke allowing it to rotate 90 degrees such that at least one of the signal heads in each direction showed a green light, causing the intersection collision. The fact that the county demonstrated it did not have notice of the defective traffic signal did not affect the viability of the “failure to maintain the intersection in a safe condition” and the “creation of a dangerous condition” causes of action:

“A municipality has a duty to maintain its streets in a reasonably safe condition” … . “[T]he municipality breaches such duty if it permits a dangerous or potentially dangerous condition to exist and cause injury” … . Here, to meet its burden on that part of the motion seeking summary judgment, defendant was required to “demonstrate that it maintained the intersection in a reasonably safe condition and that it neither created the alleged defective condition nor had actual or constructive notice of same” … .

… [W]e conclude that plaintiff raised triable issues of fact by submitting the affidavit of his expert … . We also agree with plaintiff that questions of fact exist with respect to whether the doctrine of res ipsa loquitur applies here … . Duncan v Town of Greece, 2025 NY Slip Op 05588, Fourth Dept 10-10-25

Practice Point: The municipality’s lack of notice of a dangerous condition, here an allegedly defective traffic signal, does not affect the viability of causes of action alleging the failure to maintain the intersection in a safe condition and/or the municipality’s creation of the dangerous condition.​

 

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ENGAGING IN COUNSELING SHOULD NOT BE A CONDITION OF VISITATION; THE COURT SHOULD NOT DELEGATE ITS AUTHORITY TO DETERMINE IF AND WHEN VISITATION SHOULD OCCUR TO A COUNSELOR (FOURTH DEPT). ​

The Fourth Department, modifying Family Court, determined father should not have been directed to engage in counseling as a condition of visitation Family Court shouild not have delegated its authority to the counselor to determine when visitation should resume:

It is well settled that ” ‘[a]lthough a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation’ ” … . In addition, a court may not give counselors “the authority to determine if and when visitation would occur” … . Matter of Johnson v Pritchard, 2025 NY Slip Op 05398, Fourth Dept 10-3-25

Practice Point: Engaging in counseling should not be a condition of visitation.

Practice Point: Family Court should not delegate its authority to decide if and when visitation should occur to a counselor.

 

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