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IF A DEFENDANT CHALLENGES THE LEGALITY OF HIS ARREST, THE PEOPLE MUST PROVE THE ARREST WAS BASED UPON PROBABLE CAUSE; THE ISSUANCE OF AN I-CARD DEMONSTRATING PROBABLE CAUSE IS NOT, BY ITSELF, ENOUGH; THERE MUST BE TESTIMONY AT THE SUPPRESSION HEARING DEMONSTRATING THE ARREST WAS IN FACT BASED ON THE INFORMATION IN THE I-CARD (SECOND DEPT).

The Second Department, reversing the denial of defendant’s motion to suppress his statements, determined the People did not prove the legality of defendant’s arrest at the suppression hearing. An I-card demonstrating probable cause for defendant’s arrest had been issued by the police two months before the arrest. But no one testified that the arrest was based upon the information in the I-card:

At a suppression hearing, a detective testified that he had generated still images and wanted flyers from a video of the alleged robbery, circulated the still images and wanted flyers throughout the police department, and activated an I-card for the defendant’s arrest, and that the defendant was apprehended by the Queens Warrant Squad nearly two months later. The arresting officers did not testify at the suppression hearing, nor did the detective testify about the circumstances of the arrest. After the hearing, the Supreme Court, among other things, denied that branch of the defendant’s omnibus motion which was to suppress his statements to law enforcement officials. The defendant thereafter pleaded guilty to attempted assault in the first degree. The defendant appeals.

When a defendant challenges the admission of statements he or she has made, claiming they are the product of an illegal arrest, the People bear the burden of going forward to establish the legality of the police conduct in the first instance … . Under the fellow officer rule, a police officer can make a lawful arrest even without personal knowledge sufficient to establish probable cause, so long as the officer is acting upon the direction of an officer in possession of information sufficient to constitute probable cause for the arrest … .

Here, the People failed to present evidence sufficient to establish that the arresting officers stopped and arrested the defendant on probable cause allegedly communicated by the I-card … . Contrary to the People’s contention, the issuance of an I-card nearly two months before the defendant’s arrest, standing alone, was insufficient to establish that the officers who stopped and detained the defendant were actually acting upon the direction of an officer in possession of information sufficient to constitute probable cause … . People v Moreno, 2026 NY Slip Op 03004, Second Dept 5-13-26

Practice Point: The existence of an I-card does not, by itself, demonstrate an arrest was based on probable cause. There must be testimony by the arresting officer that the arrest was, in fact, based upon the information in the I-card.

 

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EVEN IF DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA, THE JUDGE SO INFORMED HIM AND HE ACKNOWEDGED THE CONSEQUENCES ON THE RECORD; THEREFORE DEFENDANT WAS UNABLE TO SHOW HE WAS PREJUDICED BY THE ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction by guilty plea on ineffective assistance grounds should have been denied. Even if defense counsel had failed to inform defendant of the deportation-consequences of his guilty plea, the defendant was made aware of them by the judge:

The defendant failed to establish, sufficiently to warrant an evidentiary hearing, that his counsel’s allegedly deficient advice deprived him of the effective assistance of counsel under either the federal or state constitutional standards … . It is clear from the record of the plea proceeding that prior to accepting the plea, the court advised the defendant that he may be subject to deportation as a result of his plea of guilty. The defendant acknowledged his understanding thereof and confirmed that he wished to plead guilty. Under the circumstances of this case, even if defense counsel had failed to advise the defendant of the possible immigration consequences of pleading guilty, the defendant was indisputably aware of those possible consequences before he entered his favorable plea … . Accordingly, the defendant cannot show prejudice resulting from defense counsel’s alleged failure to provide that advice himself … , and there is no reasonable probability that the defendant would not have pleaded guilty but for defense counsel’s alleged deficiency … .  People v Lewis, 2026 NY Slip Op 03001, Second Dept 5-13-26

Practice Point: Here defendant’s motion to vacate his conviction by guilty plea based upon ineffective assistance of counsel should have been denied without a hearing. Even if defense counsel was ineffective in failing to inform defendant of the deportation consequences of his plea, defendant was not prejudiced because the judge so informed him.

 

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THE DEFENDANT’S ATTORNEY IN THIS FORECLOSURE ACTION FILED A NOTICE OF APPEARANCE WHICH WAIVED ANY OBJECTION TO PERSONAL JURISDICTION; JUDGMENT OF FORECLOSURE REINSTATED (SECOND DEPT).

The Second Department, reversing Supreme Court and reinstating the judgment of foreclosure, determined that the defendant’s (the Church’s) attorney’s filing of a notice of appearance waived any objection to personal jurisdiction:

CPLR 5015(a)(4) provides in relevant part that “[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person . . . upon the ground of . . . lack of jurisdiction to render the judgment or order.” Under CPLR 5015(a)(4), a default must be vacated once lack of personal jurisdiction has been established … . “[T]he filing of a notice of appearance in an action by a party’s counsel serves as a waiver of any objection to personal jurisdiction in the absence of either the service of an answer which raises a jurisdictional objection, or a motion to dismiss pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction” … . Here, since it is undisputed that Goodman filed a notice of appearance on behalf of the Church and that the Church failed, at that time, to file an answer raising the defense of lack of personal jurisdiction or to make a pre-answer motion to dismiss on that ground, the Church waived the defense of lack of personal jurisdiction … . There is no merit to the Church’s contention that a notice of appearance that is untimely filed does not confer personal jurisdiction over a defendant … . NYCTL 1998-2 Trust v Grace Christian Church, 2026 NY Slip Op 02995, Second Dept 5-13-26

Practice Point: A notice of appearance by defendant’s attorney which is accepted by plaintiff, even if the notice is “late,” waives any objection to personal jurisdiction.

 

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UPON THE PRIOR APPEAL, THE SECOND DEPARTMENT MADE A FINDING THAT RESPONDENT SUFFERED FROM SEXUAL SADISM DISORDER AND REMITTED THE MATTER; SUPREME COURT IGNORED THE FINDING AND HELD A NEW NONJURY TRIAL ON ALL ISSUES; SUPREME COURT DID NOT HAVE THE AUTHORITY TO IGNORE THE SECOND DEPARTMENT’S MANDATE (SECOND DEPT).​

The Second Department, reversing Supreme Court, determined Supreme Court improperly ignored the terms of the Second Department’s remittitur. On the prior appeal, the Second Department held that the petitioner had proven respondent suffered from sexual sadism disorder. On remittal, however, Supreme Court held a new nonjury trial on all issues, including whether respondent suffered from sexual sadism disorder:

“A trial court, upon remittitur, lacks the power to deviate from the mandate of the higher court” … . Therefore, “an order or judgment entered on remittitur ‘must conform strictly to the remittitur'” … .

Here, as the determination of this Court in the January 2024 order is binding upon the Supreme Court … , the Supreme Court erred in, sua sponte, holding a nonjury trial on all issues and redetermining issues already determined by this Court … . Accordingly, the first May 2025 order must be reversed, and we remit the matter again to the Supreme Court, Kings County, for a new trial and determination as to whether the respondent’s diagnoses of ASPD, psychopathy, and sexual sadism disorder are sufficient to find that the respondent suffers from a mental abnormality as defined in Mental Hygiene Law § 10.03(i) … , and a dispositional hearing, if appropriate … . Matter of State of New York v Ezikiel R., 2026 NY Slip Op 02987, Second Dept 5-13-26

Practice Point: A trial court cannot deviate from the mandate of a higher court. Here the appellate court’s finding was ignored by Supreme Court upon remittal, requiring reversal and another remittal.

 

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AFTER PLAINTIFF’S COUNSEL WITHDREW, THE JUDGE SET A DEADLINE FOR PLAINTIFF TO APPEAR WITH NEW COUNSEL; WHEN THE DEADLINE PASSED, THE JUDGE, SUA SPONTE, DISMISSED THE MEDICAL MALPRACTICE COMPLAINT; THE JUDGE DID NOT HAVE THE AUTHORITY FOR THE “SUA SPONTE” DISMISSAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge did not have the authority to, sua sponte, dismiss the complaint when plaintiff missed the court’s deadline for finding new counsel:

… [C]ounsel … moved for leave to withdraw as the plaintiff’s counsel. … Supreme Court, inter alia, granted the motion and directed that should the plaintiff fail to retain counsel by February 1, 2023, the complaint would be dismissed. Thereafter, in an order dated February 8, 2023, the court, upon the conditional order, sua sponte, directed dismissal of the complaint with prejudice. The plaintiff appeals.

“A court’s power to dismiss a complaint sua sponte is to be used sparingly, and only when extraordinary circumstances exist to warrant such a dismissal” … . Here, the Supreme Court was without authority, either pursuant to CPLR 3216 or 22 NYCRR 202.27 … , to direct dismissal of the complaint … . Under these circumstances, the court improperly, sua sponte, directed dismissal of the complaint .. . Dowd v Tischler, 2026 NY Slip Op 02968, Second Dept 5-13-26

Practice Point: Appellate courts don’t like “sua sponte” dismissals of complaints.

 

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THE STORM-IN-PROGRESS RULE DOES NOT APPLY TO WATER INSIDE A BUILDING TRACKED IN DURING A RAIN STORM (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Taylor, clarified and reiterated the principle that the storm-in-progress rule does not apply to tracked-in water inside a building:

… [T]his Court has not expanded the storm in progress rule to include hazards that have been tracked-in to interior spaces … , and we decline [defendant property owner’s] invitation to do so. A property owner’s efforts to remove tracked-in hazards during an ongoing storm are simply not subject to the same exigencies as when removing exterior hazards. In other words, removing tracked-in hazards during an ongoing storm is not a fruitless endeavor, and therefore the suspension of a property owner’s duty of care with respect to such hazards is not justified.

Rather, tracked-in conditions from a storm in progress are to be treated by the principles governing premises liability generally … . Rowland v Brooklyn Hosp. Ctr., 2026 NY Slip Op 02861, Second Dept 5-6-26

Practice Point: The storm-in-progress rule does not apply to water inside a building tracked in during a rain storm.​

 

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IN THIS SLIP AND FALL CASE, DEFENDANTS DID NOT DEMONSTRATE THE SIDEWALK DEFECT WAS TRIVIAL AS A MATTER OF LAW; CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this sidewalk slip and fall case, determined defendants did not demonstrate the defect was trivial as a matter of law:

In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, including the “‘width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury'” … . There is no “minimal dimension test” or “per se rule” that the condition must be of a certain height or depth in order to be actionable … . Photographs that “‘are acknowledged to fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable'” … . When “deciding in a given case whether photographs may sufficiently show triviality without objective measurement, it depends on what the photographs depict” … . The “persuasiveness of photographs will depend on what reasonable inferences regarding the alleged defect may be drawn from them” … .

Here, the evidence submitted by the defendants, including, among other things, a transcript of the plaintiff’s deposition testimony and photographs of the allegedly defective sidewalk condition, was insufficient to establish, prima facie, that the height differential was physically insignificant and that the characteristics of the defect or the surrounding circumstances did not increase the risks the alleged defect posed … . The evidence submitted did not include objective measurements of the dimensions of the defect, specifically, the height of the allegedly misleveled portion of the sidewalk. The evidence further failed to sufficiently quantify or estimate the dimensions of the defect. The plaintiff identified the photographs as fairly and accurately representing the allegedly defective sidewalk condition as it existed on the date of the accident. While the photographs demonstrated the irregular nature of the sidewalk … , it is impossible to ascertain or reasonably infer the extent of the defect from the photographs submitted … . Rosario v Wyckoff Supermarket Assoc., Inc., 2026 NY Slip Op 02860, Second Dept 5-6-26

Practice Point: Consult this decision for insight into the evidence required to demonstrate a sidewalk defect is trivial where no measurements are submitted in support of the summary judgment motion.

 

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DEFENDANT WAS NOT ENTITLED TO VACATION OF HIS CONVICTIONS ON THE GROUND THE COUNTS WHICH WERE DISMISSED AT TRIAL HAD A PREJUDICIAL “SPILL-OVER-EFFECT” ON THE REMAINING COUNTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction under a “prejudicial-spill-over-effect” theory should not have been granted. Defendant argued the counts which were dismissed at trial had tainted the counts for which he was convicted:​

“Whether an error in the proceedings relating to one count requires reversal of convictions on other jointly tried counts is a question that can only be resolved on a case-by-case basis, with due regard for the individual facts of the case, the nature of the error and its potential for prejudicial impact on the over-all outcome” … . “[T]he paramount consideration in assessing potential spillover error is whether there is a reasonable possibility that the jury’s decision to convict on the tainted counts influenced its guilty verdict on the remaining counts in a meaningful way” … . “By contrast, where the jury’s decision to convict on the tainted counts had only a tangential effect on its decision to convict on the remaining counts, no reversal is warranted” … . “Spillover analysis is highly case-specific,” requiring an evaluation of “the individual facts of the case, the nature of the error and its potential for prejudicial impact on the over-all outcome” … . * * *

… [U]nder the circumstances of this case, there was no reasonable possibility that the evidence supporting the tainted counts pertaining to the robbery on November 27, 1995, had a spillover effect on the other counts … . As the jury’s decision to convict on the tainted counts had, at most, a tangential effect upon its decision to convict on the remaining counts pursuant to the robbery on November 13, 1995, vacatur of the defendant’s convictions related to the robbery on November 13, 1995, was unwarranted on the ground of spillover prejudice … . People v Breland, 2026 NY Slip Op 02848, First Dept 5-6-26

Practice Point: Consult this decision for insight into the argument that the counts on which defendant was convicted were tainted by the counts which were dismissed at trial.

 

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IN A REAR-END COLLISION CASE, IN ORDER TO RAISE A QUESTION OF FACT ABOUT WHETHER BRAKE-FAILURE WAS THE CAUSE, THE DEFENDANT MUST DEMONSTRATE THE FAILURE WAS UNANTICIPATED AND REASONABLE CARE WAS TAKEN TO KEEP THE BRAKES IN GOOD WORKING ORDER; NOT THE CASE HERE; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end traffic accident case should have been granted. Defendants’ claim that the brakes failed did not raise a question of fact:

… [A] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision to rebut the inference of negligence” … . “A nonnegligent explanation may include a mechanical failure, a sudden, unexplained stop of the vehicle ahead, an unavoidable skidding on wet pavement, or any other reasonable cause” … . Where the defendants lay the blame for the accident on brake failure, it is incumbent upon them to show that the brake failure was unanticipated and that reasonable care was exercised to keep the brakes in good working order … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting his affidavit wherein he averred that his vehicle had been stopped for approximately 10 seconds for a red traffic light when it was struck in the rear by the defendants’ vehicle … . In opposition, the defendants failed to raise a triable issue of fact as to whether the alleged brake failure was unanticipated and whether reasonable care was exercised to keep the brakes in good working order … . Wesa v Consolidated Bus Tr., Inc., 2026 NY Slip Op 02690, Second Dept 4-29-26

Practice Point: Where a defendant in a rear-end collision case claims brake failure was the cause, in order to survive summary judgment defendant must demonstrate the failure was unanticipated and reasonable care had been taken to keep the brakes in good working order.

 

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THE EXPERT TESTIMONY OFFERED TO DEMONSTRATE A CAUSAL RELATIONSHIP BETWEEN LOW-BIRTH-WEIGHT AND AUTISM SHOULD HAVE BEEN PRECLUDED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the plaintiffs’ verdict in this medical malpractice action and ordering a new trial, determined the expert testimony offered to demonstrate low-birth-weight has a causal relationship with autism should have been precluded:

There was no testimony at the Frye hearing that any of the studies Rubenstein [plaintiffs’ expert] relied upon concluded that premature birth causes autism. Rather, Rubenstein’s testimony established that the exact mechanism of how autism develops is unknown and that studies found a causal inference or association between prematurity and autism, not a causal relationship. Further, there was no testimony elicited at the Frye hearing that demonstrated that the medical community, specifically pediatric neurologists, have accepted that prematurity causes autism or even that a child’s birth at 25 weeks versus 27 weeks increases that child’s risk of later being diagnosed with autism. In any event, the gap between the statistical analysis relied upon by Rubenstein regarding the prevalence of autism in preterm, low-birth-weight infants and his testimony that the pathophysiology and causes of autism are unknown was too great to allow him to opine as to his theory of causation in this action. Based upon the foregoing, the Supreme Court erred in denying that branch of the defendants’ motion which was to preclude Rubenstein’s testimony on this theory of causation. Terehoff v Frenkel, 2026 NY Slip Op 02688, Second Dept 4-29-26

Practice Point: Consult this decision for insight into when observational studies will not support an expert’s testimony about causation. Here the testimony purporting to link low-birth-weight to autism should have been precluded.

 

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