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THE JUDGE ENGAGED IN EXCESSIVE AND PREJUDICIAL QUESTIONING OF TRIAL WITNESSES DEPRIVING DEFENDANT OF A FAIR TRIAL; THE “ERROR” WAS NOT PRESERVED; THE COURT EXERCISED ITS “INTEREST OF JUSTICE” JURISDICTION TO CONSIDER THE ISSUE AND REVERSE (SECOND DEPT).

The Second Department, reversing the judgments of conviction and ordering a new trial, determined the judge engaged in excessive and prejudicial questioning of witness depriving defendant of a fair trial. The “error” was not preserved but the Second Department exercised their interest of justice jurisdiction:

… [T]here must be a new trial, before a different Justice, because the Supreme Court conducted excessive and prejudicial questioning of trial witnesses. Here, the court interjected itself into the questioning of multiple witnesses and generally created the impression that it was an advocate for the People … . Although the defendant failed to preserve his claim that he was deprived of a fair trial because the court interfered with the questioning of witnesses (see CPL 470.05[2]), based on the circumstances of this case, we reach this contention in the exercise of our interest of justice jurisdiction … . People v Chimborazo, 2026 NY Slip Op 06132, Second Dept 10-21-26

Practice Point: Appellate courts will reverse a conviction if the judge intervenes too much with prejudicial questioning of witnesses, even where the issue is not preserved.

 

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THE CITY’S PROOF IT DID NOT HAVE PRIOR WRITTEN NOTIFICATION OF THE CONDITION WHICH CAUSED PLAINTIFF TO FALL WAS INSUFFICIENT; THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the city did not prove it did not have prior written notice of the defective boardwalk board which caused plaintiff to fall. Therefore the city’s motion for summary judgment should have been denied:

“‘Where a locality has enacted a prior notification law and is alleged to be liable for personal injuries sustained as a result of a defective condition, the locality establishes a defense as a matter of law by demonstrating that it did not receive prior written notice of the defective condition'” … . “Administrative Code of the City of New York § 7-201(c) limits the City’s duty of care over municipal streets and sidewalks by imposing liability only for those defects or hazardous conditions which its officials have been actually notified exist at a specified location” … .

Here, the defendants failed to demonstrate, prima facie, that they did not receive prior written notice of the alleged defect. In support of their motion, the defendants submitted, inter alia, the affidavit of the Legal Liaison for the Parks Department, who indicated that she conducted a search of the relevant records related to the subject boardwalk over a period of two years prior to the date of the accident. However, the affidavit did not unequivocally assert that the search failed to reveal any prior written notice of the alleged defect on the boardwalk … . Moreover, the searched records apparently were not attached to the affidavit and, under the circumstances, the defendants otherwise failed to show that all of the relevant records were searched … . Accordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint regardless of the sufficiency of the plaintiff’s opposition papers … . Young v City of New York, 2026 NY Slip Op 06166, Second Dept 10-21-26

Practice Point: Consult this decision for insight into the proof a municipality must submit to demonstrate a lack of written notice of a dangerous condition which caused a plaintiff’s injury. Here the evidence fell short.

 

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EVEN THOUGH DEFENDANT HAD THE RIGHT OF WAY, A JURY COULD FIND THAT PLAINTIFF’S VEHICLE WAS ALREADY IN THE INTERSECTION AND DEFENDANT FAILED TO USE REASONABLE CARE TO AVOID THE COLLISION; DEFENDANTS’ MOTION FOR A JUDGMENT AS A MATTER OF LAW DISMISSING THE COMPLAINT SHOULD NOT HAVE BEEN GRANTED; EVIDENCE OF DAMAGE TO THE VEHICLES SHOULD NOT HAVE BEEN PRECLUDED IN THE LIABLITY PORTION OF THE TRIAL BECAUSE THE NATURE OF THE DAMAGE HAD SOME RELEVANCE TO LIABILITY (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new trial in this intersection traffic-accident case, determined defendants were not entitled to a judgment as a matter of law dismissing the complaint at the close of plaintiff’s case. The Second Department held that a jury could find that, although defendant (Capobianco) had the right of way, plaintiff was already in the intersection and Capobianco failed to exercise reasonable care to avoid the collision. In addition, the Second Department found that Supreme Court should not have excluded evidence of the damage to the vehicles because the damage was relevant to liability for failure to see what should have been seen:

Pursuant to Vehicle and Traffic Law § 1142(a), a driver entering an intersection controlled by a stop sign must yield the right-of-way to any other vehicle that is already in the intersection or that is approaching so closely as to constitute an immediate hazard … , and a driver with the right-of-way is entitled to assume that other drivers will obey the traffic law requiring them to yield … . A driver also has a common-law duty to see that which should have been seen through the proper use of the driver’s senses … . Thus, while a driver with the right-of-way who has only seconds to react to a vehicle that has failed to yield is not comparatively negligent for failing to avoid the collision … , he or she still has a duty to exercise reasonable care to avoid a collision with another vehicle already in the intersection … .

Here, affording the plaintiff every inference which may properly be drawn from the facts presented, and considering the facts in the light most favorable to the plaintiff, there is a rational process by which the jury could have found that even if Capobianco had the right-of-way, the plaintiff’s vehicle was already in the intersection, and that Capobianco failed to exercise reasonable care to avoid the collision … . Accordingly, the Supreme Court should have denied the defendants’ motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint.

In addition, the Supreme Court improvidently exercised its discretion in precluding photographs depicting the nature and extent of damage to the parties’ vehicles after the accident. Even where a trial is bifurcated, some evidence of damages may nevertheless be admitted, in the trial court’s discretion, to establish liability at the liability phase of the trial, so long as such evidence is probative of liability and accompanied by an appropriate limiting instruction … . Pruessen v Richard Capobianco, Inc., 2026 NY Slip Op 06155, Second Dept 10-21-26

Practice Point: A driver who had the right of way may still be liable in an intersection traffic accident if the other driver was already in the intersection and the driver who had the right of way did not exercise reasonable care to avoid the collision.

Practice Point: In a bifurcated traffic-accident trial, evidence of the nature of the damage to the vehicles may have relevance to liability and, if so, should be admitted.

 

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A POLICE OFFICER SHOULD NOT HAVE BEEN ALLOWED TO GIVE HIS OPINION ABOUT WHAT WAS DEPICTED IN SURVEILLANCE VIDEOS, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the judgment of conviction and ordering a new trial, determined a police officer should not have been allowed to offer an opinion about what was depicted in surveillance videos:

Supreme Court should have precluded the testimony of a police detective regarding his opinion as to what was depicted on various surveillance videos. “It is, of course, the role of the jury to determine the facts of the case tried before it” … . “Generally, lay witnesses must testify only to the facts and not to their opinions and conclusions drawn from the facts, as it is the jury’s province to draw the appropriate inferences arising from the facts” … . Here, considerable portions of the detective’s testimony improperly usurped the jury’s function by interpreting the evidence and was improperly admitted into evidence as relevant to the detective’s investigation … . Rather than aiding the jury in understanding the investigation, the detective improperly narrated the video, and the detective’s interpretation of the video improperly “instruct[ed] the jury on the existence of the facts needed to satisfy the elements of the charged offense” … . The error cannot be deemed harmless since the evidence of the defendant’s guilt, without reference to the error, was not overwhelming, and it cannot be said that there is no significant probability that the jury would have acquitted the defendant had it not been for the error … . People v Vincent, 2026 NY Slip Op 06149, Second Dept 10-21-26

Practice Point: Here, allowing a police officer to give his opinion about what was depicted in surveillance videos usurped the jury’s function.

 

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IN THIS STREET STOP, THE POLICE WERE JUSTIFIED IN FRISKING THE DEFENDANT BUT WERE NOT JUSTIFIED IN REACHING INSIDE A POCKET TO RETRIEVE THE ROBBERY VICTIM’S DRIVER’S LICENSE; BECAUSE THE DRIVER’S LICENSE CORROBORATED OTHER EVIDENCE, MAKING CONVICTION MORE LIKELY, A NEW TRIAL WAS ORDERED (SECOND DEPT).

The Second Department, reversing several convictions and ordering a new trial on the relevant counts, determined the police were justified in frisking the defendant not in removing the robbery victim’s driver’s license from defendant’s pocket. The driver’s license corroborated other evidence making the robbery and possession of stolen property convictions more likely:

… Supreme Court properly determined that since the defendant fit the description heard over the radio and he was in close spatial and temporal proximity to the scene of the robbery, the police officers reasonably suspected that the defendant was the perpetrator of the robbery. Furthermore, the police officers were justified in performing a protective frisk since they had reasonable suspicion that the defendant was armed and dangerous since he had a box cutter in his hand, and the police officers had concerns for safety, entitling them to conduct a protective frisk … . However, here, there was no justification for searching the defendant’s pants pocket, reaching into it, and removing the driver license … , as there was no evidence presented at the suppression hearing that, during his frisk of the defendant, Officer Mancuso felt anything in the defendant’s pocket that seemed to be a weapon or that could have posed a further danger to the police officers at the scene. In the course of conducting a protective pat-down based upon reasonable suspicion, “[o]nce an officer has concluded that no weapon is present, the search is over and there is no authority for further intrusion” … . Thus, there was no lawful basis for removing the driver license from the defendant’s pocket … . Accordingly, the People failed to satisfy their burden of going forward to establish the legality of police conduct in the first instance, and thus, the driver license should have been suppressed. People v Sanchez, 2026 NY Slip Op 06146, Second Dept 10-21-26

Practice Point: Here the police were justified in frisking the defendant for weapons. But, because the frisk did not indicate the presence of a weapon, the police were not justified in reaching inside defendant’s pocket and seizing the robbery victim’s driver’s license.

 

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THE REQUIREMENTS FOR AN RPAPL 1304 NOTICE OF FORECLOSURE ARE STRICTLY CONSTRUED; HERE THE OMISSION OF A WEBSITE ADDRESS FROM THE NOTICE RESULTED IN DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the omission of a website address from the RPAPL 1304 foreclosure notice required dismissal of the foreclosure action:

The RPAPL 1304 notices purportedly sent to the defendant failed to include the website address for the NYS Office of the Attorney General’s Homeowner Protection Program, http://www.aghomehelp.com/—a piece of information specifically required by the version of RPAPL 1304 in effect at the time the notices were sent—and thus, the notices were facially defective … . * * * Accordingly, the court should have granted that branch of the defendant’s cross-motion which was for summary judgment dismissing the complaint insofar as asserted against him. Bethpage Fed. Credit Union v Pepe, 2026 NY Slip Op 06085, Second Dept 10-21-26

Practice Point: Any omission from the statutorily required contents of an RPAPL 1304 notice will result in dismissal of the foreclosure action. Here a website address was missing and the complaint was dismissed.​

 

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ALTHOUGH “ALICE” DID NOT SIGN THE NOTE, SHE WAS NAMED AS A “BORROWER” IN THE MORTGAGE DOCUMENT AND WAS THEREFORE ENTITLED TO THE RPAPL 1304 NOTICE OF FORECLOSURE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined “Alice,” who was named as a “borrower” in the mortgage document, was entitled to the RPAPL 1304 notice of foreclosure notwithstanding that she did not sign the note:

Alice was entitled to notice pursuant to RPAPL 1304 as a “borrower” within the meaning of that statute. Although Alice did not sign the subject note, she executed the mortgage as “Borrower,” she was identified as a borrower on the first page of the mortgage agreement, and she agreed in the mortgage agreement to pay the amounts due under the note. “‘Where, as here, a homeowner defendant is referred to as a “borrower” in the mortgage instrument and, in that capacity, agrees to pay amounts due under the note, that defendant is a “borrower” for the purposes of RPAPL 1304, notwithstanding . . . any ambiguity created by a provision in the mortgage instrument to the effect that parties who did not sign the underlying note are not personally obligated to pay the sums secured'” … . Bank of Am., N.A. v Maddox, 2026 NY Slip Op 06084, Second Dept 10-21-26

Practice Point: Here “Alice” was named as a “borrower” in the mortgage document but she did not sign the note. She was still entitled to the RPAPL 1304 notice of foreclosure.

 

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HERE THE ARBITRATOR’S AWARD BECAME DORMANT WHEN DE NOVO PROCEEDINGS WERE STARTED BUT WAS REVIVED WHEN THE DE NOVO PROCEEDINGS WERE DISMISSED FOR FAILURE TO COMPLY WITH DISCOVERY DEMANDS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the arbitration award remained dormant when the de novo proceedings were brought but revived when the de novo proceedings were dismissed for failure to comply with discovery demands:

… [T]he commencement of the de novo action did not eliminate the master arbitration award but only placed it in a dormant state. An award by an arbitrator shall be binding, except for the grounds for review set forth in CPLR article 75, and except where a de novo review is sought (see Insurance Law § 5106[c]). Under certain circumstances, an arbitration award is presumed to be dormant while the de novo action is pending … . An arbitration award is revived when that action is dismissed for failure to prosecute or other similar basis not on the merits … . Here, the dismissal of the complaint in the instant action due to the plaintiff’s failure to comply with discovery demands revived the master arbitration award and made it binding on the parties. Thus, under the circumstances, the Supreme Court should have granted that branch of the defendant’s motion which was to confirm the master arbitration award … . American Tr. Ins. Co. v Bliss Acupuncture, P.C., 2026 NY Slip Op 06081, Second Dept 10-21-26

Practice Point: Here the arbitrator’s award became dormant when de novo proceedings were brought but was revived when the de novo proceedings were dismissed for failure to comply with discovery demands.

 

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THE PROOF OF PHYSICAL INJURY WAS NOT SUFFICIENT TO SUPPORT THE STRANGULATION AND ASSAULT CONVICTIONS (SECOND DEPT).

The Second Department reversed strangulation and assault convictions because the proof of physical injury was insufficient:

The injuries to the victim’s neck, described as “redness,” “small black and blue marks,” and “little scratches” are insufficient to establish physical injury … . * * *

The object was described by the victim as “something that was like metal,” which caused tiny red marks on the victim’s stomach. This evidence was insufficient to prove that the object was a dangerous instrument … capable of causing serious physical injury … . People v Guzman, 2026 NY Slip Op 05972, Second Dept 10-14-26

Practice Point: Strangulation and assault require proof of physical injury. The minor injuries proven in this case did not support the convictions.

 

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ONE PROSPECTIVE JUROR TESTIFIED THE DEFENDANT ATTEMPTED TO COMMUNICATE WITH HER; THE JUDGE GRANTED THE PEOPLE’S MOTION TO DISMISS THE ENTIRE JURY PANEL; BECAUSE THE JUDGE DID NOT FIRST QUESTION THE REMAINING JURORS ON THE PANEL ABOUT THEIR ABILITY TO BE FAIR AND IMPARTIAL BEFORE DISMISSING THEM, THE JUDGE EFFECTIVELY DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A PARTICULAR JURY CHOSEN ACCORDING TO LAW (SECOND DEPT).

The Second Department, reversing the judgment of conviction and ordering a new trial, determined the judge should not have dismissed the entire jury panel without conducting an inquiry. One prospective juror on the panel alleged the defendant tried to communicate with her. The People moved to dismiss the panel which the judge granted without questioning the remaining jurors about their ability to be fair and impartial:

“A defendant has a constitutional right to a trial by a particular jury chosen according to law, in whose selection [the defendant] has had a voice” … . Pursuant to Criminal Procedure Law article 270, the first 12 members of the jury panel who are not excluded as prescribed by the statute constitute the trial jury … . Where a jury panel is “properly drawn and sworn to answer questions truthfully, there must be legal cause or a peremptory challenge to exclude a [prospective] juror” ( … see CPLR 270.15 … ). “A defendant ‘is . . . entitled to insist that the jury shall be selected according to methods established with a view to secure a just and impartial administration of the jury system . . . The court cannot arbitrarily, and without cause, set aside a competent juror. Neither the court nor the parties can select the jury, except in the way pointed out by the statute'” … . * * *

By dismissing the entire jury panel without questioning the ability of the individual prospective jurors to be fair and impartial …, the court deprived defendant of a jury chosen “at random from a fair cross-section of the community” … . People v Gaston, 2026 NY Slip Op 05971, Second Dept 10-14-26

Practice Point: A judge cannot arbitrarily and without cause dismiss a competent juror. Here the judge dismissed an entire panel of prospective jurors because one prospective juror alleged the defendant tried to communicate with her. In that situation, the judge should have questioned the remaining prospective jurors about their ability to be fair and impartial to determine if there was cause for dismissal.​

 

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