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MOTHER’S BEHAVIOR DID NOT AMOUNT TO A FORFEITURE OF HER RIGHT TO COUNSEL IN THIS VISITATION PROCEEDING (THIRD DEPT).

The Third Department, reversing the order of Family Court in this visitation proceeding, determined mother was denied her right to counsel. After attempts to assign counsel failed, the judge essentially forced mother to proceed without an attorney:

Pursuant to Family Ct Act § 262 (a), respondents in visitation proceedings have a right to be represented by counsel and, if they are financially unable to obtain counsel, have the right to have counsel assigned by the court … . * * *

“Here, the record is clear that the mother did not wish to proceed pro se, but was forced to do so” … ; as such, “the record . . . does not indicate that [she] made a knowing and intelligent waiver of [her] rights to be represented by counsel” … . It appears from the record that Family Court determined that the mother had forfeited her right to counsel. Indeed, “[a] litigant may forfeit the right to assigned counsel through a persistent pattern of threatening, abusive, obstreperous, and uncooperative behavior with successive assigned counsel” … . However, such a forfeiture is an “extreme, last-resort” based upon “egregious conduct by a [respondent]” … . Simply put, while we are certainly mindful of the difficult position Family Court was in, “the record fails to clearly reflect that the mother engaged in the sort of egregious conduct that would justify a finding that she forfeited her right to assigned counsel” … . Matter of Carlene R. v Heather A., 2026 NY Slip Op 04015, Third Dept 6-25-24

Practice Point: In a Family Court visitation proceeding a party’s waiver of the right to counsel must be explicit. Here it was clear mother did not wish to go forward pro se.

 

 

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CIRCUMSTANTIAL EVIDENCE OF THE CAUSE OF PLAINTIFF’S SLIP AND FALL, INCLUDING A VIDEO AND PLAINTIFF’S DESCRIPTION OF THE FALL, WERE SUFFICIENT TO WITHSTAND A SUMMARY JUDGMENT MOTION (THRID DEPT). ​

The Third Department, reversing Supreme Court, determined the defendant grocery store’s motion for summary judgment in this slip and fall action should not have been granted. A video depicted plaintiff coming around the corner of a bottled water display and falling. She testified cases of water protruded into the aisle. Although she she could not say exactly what caused her to trip, the circumstantial evidence of the cause of the fall was sufficient to create a question of fact:

…”[E]ven when a plaintiff is unable to identify the cause of a fall with certainty, a case of negligence based wholly on circumstantial evidence may be established if the plaintiff shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred” … . It is true that Grant never observed the actual item he tripped over, nor its precise location. However, given Grant’s deposition testimony indicating that he tripped over something made of soft plastic, plaintiff’s deposition testimony that there were cases of water hanging over the edge of the endcap and the video portraying a case being knocked off the display as Grant tripped and fell, defendant’s negligence could reasonably be inferred.

Even if defendants had met their initial burden of showing entitlement to judgment as a matter of law, plaintiff raised a triable issue of fact as to whether the endcap display was inherently dangerous … . In opposition to the motion, plaintiff submitted the affidavit of a commercial space designer and retail safety expert who opined that the endcap display was hazardous, inasmuch as the bottom layers of water cases were stacked below a customer’s typical line of sight, which ranges between three to six feet from the ground. According to the expert, defendants failed to conform with certain industry standards concerning the proper height of floor displays and the need for endcap displays to be fully stocked to prevent tripping hazards. Grant v Golub Corp., 2026 NY Slip Op 04013, Third Dept 6-24-26

Practice Point: Consult this decision for an example of sufficient proof of causation of a slip and fall by circumstantial evidence. Usually the failure to pinpoint the exact cause of a slip and fall will be fatal to the action.

 

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DOWSING THE VICTIM WITH ACCELERANT AND IGNITING IT DO NOT SATISFY THE STATUTORY CRITERIA FOR ATTEMPTED MURDER FIRST DEGREE (THIRD DEPT).

The Third Department reversed defendant’s attempted murder first degree conviction as against the weight of the evidence. The act of dowsing the victim with accelerant did not satisfy the “physical pain” element of the offense and the act of igniting the accelerant did not meet the “course of conduct” element of the offense:

A person is guilty of attempted murder in the first degree when, with the intent to cause the death of another person, they attempt to cause the death of such person and, as relevant here, they “act[ ] in an especially cruel and wanton manner pursuant to a course of conduct intended to inflict and inflicting torture upon the victim” … . In People v Estrella (41 NY3d 514 [2024]), the Court of Appeals explained that, to satisfy the course of conduct element of this “torture murder” subparagraph, the People must demonstrate “a series of distinct acts before the victim’s death that are intended to inflict and actually inflict extreme physical pain” … . The Court of Appeals made it clear that, in order to satisfy this standard, it is not enough that only the ultimate fatal act result in such pain … . Further, actions such as planning and stalking cannot be considered part of the course of conduct insofar as they do not cause physical pain … .

Here, assuming arguendo that defendant engaged in a series of distinct acts when he threw accelerant on victim A and then immediately lit her on fire, the evidence nevertheless fails to sustain the subject crime because the act of dousing victim A with accelerant cannot be said, under the particular facts of this case, to have caused her extreme physical pain. To be sure, the evidence plainly revealed the deplorable purpose behind throwing accelerant on victim A, and it would be difficult to imagine such an act not leading to psychological terror. However, such circumstances do not equate to the requisite physical pain … . While the remaining act of setting victim A on fire obviously led to extreme physical pain, a single act does not comprise a course of conduct … . Accordingly, we are constrained to conclude that the conviction on this count is against the weight of the evidence … . People v Ketter, 2026 NY Slip Op 03848, Third Dept 6-18-26

Practice Point: Consult this decision for an analysis of the elements of attempted murder first degree.​

 

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PETTIONERS (LICENSED CANNABIS RETAILERS) DID NOT DEMONSTRATE THAT THE RESPONDENT AGENCY’S REGULATIONS CONCERNING INSPECTIONS, SEARCHES AND SEIZURES AT PETITIONERS’ PLACES OF BUSINESS ARE UNCONSTITUTIONAL; THE ALLEGATION THAT THE MANNER IN WHICH THE INSPECTIONS ARE CONDUCTED VIOLATES THE CONSTITUTION IS PREMATURE BECAUSE THE ALLEGATION HAS NOT YET BEEN SUBJECTED TO ADMINISTRATIVE REVIEW, I.E., THE “EXHAUSTION OF REMEDIES” REQUIREMENT HAS NOT BEEN MET (THIRD DEPT). ​

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Corcoran, determined the preliminary injunction prohibiting certain inspections of petitioners’ businesses, which are licensed for the retail sale of cannabis, should not have been granted. The respondent is an agency, the NYS Cannabis Control Board.

… [Re:] petitioners’ attempt to show the likelihood of a successful constitutional challenge, we find that Supreme Court abused its discretion in granting the preliminary injunction because petitioners failed to show that the statutory and regulatory scheme is invalid in all of its applications … . * * *  When viewed as a whole, we find that the statutory and regulatory framework provides “meaningful limitation[s]” on an inspector’s discretion and ensures that “the search is limited in scope to that necessary to meet the interest that legitimized the search in the first place” … . …

To the extent petitioners challenge the manner in which inspections were applied to their particular businesses, these “as-applied” claims are premature because they have not been subjected to administrative review. A facial challenge requires examination of the statute “on a cold page” and without reference to the particular conduct … , whereas an “as-applied” challenge “requires an analysis of the facts of a particular case” … . Matter of Super Smoke N Save LLC v New York State Cannabis Control Bd., 2026 NY Slip Op 03715, Third Dept 6-11-26

Practice Point: A court can review an agency’s regulations which are alleged to be unconstitutional “on a cold page,” but a court cannot review the manner in which the regulations are applied absent an agency determination (the “exhaustion of remedies” rule in administrative law).

 

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PETITIONER ALLEGED EMPLOYMENT DISCRIMINATION BASED LARGELY ON THE EMPLOYER’S REFUSAL TO ACCOMMODATE PETITIONER’S DISABILITIES BY ALLOWING HER TO WORK REMOTELY FROM HOME; THE EMPLOYER DID NOT PRESENT SUFFICIENT FACTUAL INFORMATION TO WARRANT SUMMARY JUDGMENT; CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined there were questions of fact precluding summary judgment on petitioner’s employment discrimination allegations which are based largely on the employer’s refusal to accommodate petitioner’s disabilities by allowing her to work remotely from home. The decision is too detailed to fairly summarize here. The decision lays out in detail what an employer must demonstrate to warrant summary judgment in this context:

“[T]he first step in providing a reasonable accommodation is to engage in a good faith interactive process that assesses the needs of the disabled individual and the reasonableness of the accommodation requested” … . “[T]he essential functions of the position need to be part of the interactive process the law requires, not a unilateral employer decision cloaked by business judgement” … . An employer generally cannot obtain summary judgment on a discrimination claim unless the record demonstrates that it engaged in a good faith interactive process … . * * *

To meet its prima facie burden on summary judgment, [the employer] sought to prove that petitioner could not perform those essential functions, even with an accommodation… .

Bereft of rudimentary discovery such as depositions of the parties, [the employer] failed to establish the essential functions of petitioner’s position. “To avoid unfounded reliance on uninformed assumptions, the identification of the essential functions of a job requires a fact-specific inquiry into both the employer’s description of a job and how the job is actually performed in practice” … . * * *

… [The employer] did not address which, if any, of petitioner’s duties must be performed in person. * * *

 … [The employer] failed to demonstrate that petitioner’s requested accommodation would constitute an undue hardship. Matter of Smelyansky v New York State Off. of Gen. Servs., 2026 NY Slip Op 03708, Third Dept 6-11-26

Practice Point: Consult this decision for insight into what an employer must demonstrate to warrant summary judgment on an employment-discrimination action alleging the employer’s failure to accommodate petitioner’s disability.

 

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DEFENDANT ALLEGED HIS ATTORNEY DELIBERATELY WITHHELD IMPEACHMENT EVIDENCE ABOUT AN EXPERT WITNESS WHEN HIS ATTORNEY PERSUADED HIM TO HIRE THE EXPERT; BECAUSE OF THE IMPORTANCE OF THE EXPERT’S TESTIMONY, A HEARING ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE-ASSISTANCE GROUNDS SHOULD HAVE BEEN HELD; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing County Court, determined County Court should have held a hearing on defendant’s motion to vacate the judgment of conviction on ineffective-assistance grounds. Defendant alleged his attorney, Mary Rain, deliberately withheld impeachment information about an expert witness, Baerthlein, when persuading defendant to hire the expert:

… [D]efendant’s claim is that Rain was ineffective because she deliberately withheld impeachment evidence about Baerthlein when she persuaded defendant to hire him as an expert and the sole defense witness; that same impeachment evidence was ultimately used to vitiate Rain’s chosen defense; and that defendant would not have retained Baerthlein if Rain had disclosed the evidence in the first place. Given the central importance of Baerthlein’s credibility — particularly “in a case such as this, where casting doubt on the prosecution’s medical proof is the crux of the defense” … — Rain’s alleged failures, if true, were not the product of a legitimate but ill-advised trial strategy … . People v Thornton, 2026 NY Slip Op 03699, Third Dept 6-11-26

Practice Point: Here the allegation defense counsel deliberately withheld impeachment evidence about an expert witness while persuading defendant to hire the expert raised a factual question which required a hearing re: defendant’s motion to vacate his conviction on ineffective-assistance grounds.

 

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PETITIONER, THE GUARDIAN OF THE PERSON AND PROPERTY OF AN INCAPACITATED PERSON SINCE 2012, WAS ASKED TO RECERTIFY THE GUARDIANSHIP BY A NEW BANK WHICH TOOK OVER THE ACCOUNTS; PETITIONER SOUGHT TO CONTINUE THE TERMS OF THE 2012 ORDER; THE JUDGE SHOULD NOT HAVE, SUA SPONTE, MODIFIED THE TERMS OF THE ORIGINAL ORDER ABSENT A REQUEST FROM A PARTY TO DO SO (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the justice presiding over this guardianship proceeding should not have “sua sponte” changed the terms of the existing guardianship absent a request from a party to do so. The appellate courts do not like “sua sponte” rulings. The petitioner was appointed guardian of the person and property of an incapacitated person in 2012. This proceeding was prompted by a new bank which took over the incapacitated person’s accounts and requested that petitioner “recertify” his guardianship status. Petitioner brought this proceeding to continue the terms of the original 2012 order:

… [P]etitioner [the contends that Supreme Court erred in modifying the terms of the guardianship. We find this contention to have merit. As petitioner was appointed guardian in 2012, there was no basis to appoint a temporary guardian (see Mental Hygiene Law § 81.23 [a]). Nor was there a basis to remove the guardian (see Mental Hygiene Law § 81.35). Although a court may terminate or modify a guardian’s powers upon a showing that, “for some other reason, . . . the guardian is no longer necessary . . . or the powers of the guardian should be modified based upon changes in the circumstances of the incapacitated person” (Mental Hygiene Law § 81.36 [a] [4]), such application cannot be made sua sponte, but must “be made by the guardian, the incapacitated person, or any person entitled to commence a proceeding under this article” (Mental Hygiene Law § 81.36 [b] …). Nevertheless, when authorizing the powers that may be exercised by a guardian of the property, courts are to employ “the least restrictive form of intervention,” taking into consideration, among other things, the incapacitated “person’s wishes, preferences, and desires with regard to managing the activities of daily living” (Mental Hygiene Law § 81.21 [a]).

Here, there was no request before Supreme Court to modify the terms of the guardianship, as petitioner moved to continue the same terms of the original order to satisfy the requests of the new banking institution — specifically, petitioner’s access to “all bank accounts, annuity payments, entitlements and other financial resources in [respondent’s] possession or payable to her.” However, the order issued by Supreme Court failed to contain this language and otherwise did not conform to the requirements of the statute (see Mental Hygiene Law §§ 81.15 [c]; 81.16). To the extent that this order is further interpreted as increasing the powers of the guardian by requiring petitioner to now pay certain monthly expenses that respondent already successfully handles on her own, we agree with petitioner that the record does not support this change as being the least restrictive form of intervention (see Mental Hygiene Law § 81.21 [a]). Accordingly, this portion of Supreme Court’s order must be reversed and vacated. Matter of Karissa W., 2026 NY Slip Op 03490, Third Dept 6-4-26

Practice Point: The decision illustrates the appellate courts’ disapproval of sua sponte rulings, i.e,, rulings which are not precipitated by a party’s motion.

 

IN THIS BICYCLE ACCIDENT CASE, WHETHER A ONE-AND-A-QUARTER-INCH GAP IN THE ROADWAY WAS “OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS” SHOULD NOT HAVE BEEN DETERMINED AS A MATTER OF LAW; IT IS A QUESTION FOR THE JURY BASED ON ALL THE CIRCUMSTANCES (THIRD DEPT).

The Third Department, reversing Supreme Court, determined there were questions of fact precluding summary judgment in this bicycle-accident case based upon a 1 1/4 inch gap in the roadway. Supreme Court granted defendant’s summary judgment motion based, in part, on the conclusion that the defect was open and obvious and not inherently dangerous. The Third Department noted that whether a defect is open and obvious is usually a question for a jury:

To the extent Supreme Court dismissed the complaint based upon its conclusion that the gap was open and obvious and not inherently dangerous, we note that “[w]hether a condition is open and obvious does not preclude liability . . . as a matter of law; rather, it is a factor that impacts the foreseeability of an accident and the comparative negligence of the injured party” … . Indeed, “[t]he determination as to whether a condition is open and obvious generally falls within the province of a jury, as it requires consideration of the unique facts presented by the case before it” . “In this regard, the determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … . Here … [plaintiff] indicated that his attention was occupied by a changing traffic light ahead and a moving motor vehicle to the left, and that there were cars parked to his right in…  designated spots. Viewing all of the evidence in the light most favorable to plaintiffs as the nonmovants … , the record does not compel the conclusion that the gap was readily observable with the reasonable use of one’s senses and not inherently dangerous … . Stegman v City of Glens Falls, N.Y., 2026 NY Slip Op 03486, Third Dept 6-4-26

Practice Point: Here in this bicycle accident case, a 1 1/4 inch gap in the roadway could not be deemed “trivial” or “open and obvious and not inherently dangerous” as a matter of law.

 

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THE ISSUANCE DATE OF A DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS) DECISION BY A HEARING OFFICER IS THE DATE THE DECISION IS MAILED; THE 60-DAY APPEAL PERIOD STARTS RUNNING ON THE DATE OF MAILING; HERE DOCCS DID NOT PROVE WHEN THE DECISION WAS MAILED AND THEREFORE FAILED TO PROVE THE APPEAL WAS UNTIMELY; THE DATE STAMPED BY A POSTAGE METER IS NOT NECESSARILY THE DATE OF MAILING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the respondent Department of Corrections and Community Supervision (DOCCS) did not demonstrate petitioner’s appeal of the suspension of her visiting rights was untimely. Petitioner is the fiancee of an incarcerated person and the suspension of visiting rights was related to an incident during one of the visits. The fiancee attempted to appeal the suspension.  DOCCS argued that the appeal was untimely and Supreme Court agreed. The Third Department determined DOCCS failed to prove the appeal was untimely because it did not prove when the decision suspending visitation was mailed. Mailing triggers the 60-day period for appeal. The envelope in which the decision was mailed was stamped by a postage meter on January 8, 2024, but that does not prove it was mailed on January 8. Petitioner’s appeal was received by DOCCS on March 13, 2024. Without proof of the exact date the decision was mailed, DOCCS did not demonstrate the 60-day appeal period had expired on March 13:

… [P]etitioner’s 60-day appeal window began to run on the date the decision was mailed. * * *

… [T]he issuance date of the Hearing Officer’s decision is the day it was placed in the mail. … [R]espondents’ submissions in support of their motion to dismiss do not reveal this date. Although the record contains a copy of the envelope in which the decision was mailed, it shows only the date the envelope was put through a postage meter, which “is not the equivalent of a postmark date” … . Respondents have not proffered an affidavit of mailing to establish the date it was placed in the mail. As such, respondents did not meet their burden of establishing that claimant’s appeal was untimely … . Matter of Moses v New York State Dept. of Corr. & Community Supervision, 2026 NY Slip Op 03485, Third Dept 6-4-26

Practice Point: If an appeal period is triggered by when a decision is mailed, the party attempting to prove the appeal was untimely must prove precisely when the decision was mailed. The date stamped by a postage meter is not proof of the the precise date of mailing.

 

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DEFENDANT’S STATEMENT THAT THERE WAS A WEAPON IN HIS BACKPACK WAS A RESPONSE TO A DIRECT QUESTION BY A POLICE OFFICER AND WAS THEREFORE NOT ADMISSIBLE AS “SPONTANEOUS;” THE STATEMENT AND THE WEAPON SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT). ​

The Third Department, reversing County Court, suppressed a statement made by the defendant and the handgun seized from defendant’s backpack based on defendant’s statement. Defendant’s statement that the backpack contained a weapon was not spontaneous. It was made in response to a direct question by a police officer who had possession of the backpack and could feel the weapon inside:

At the suppression hearing, the sergeant who conducted the subject search testified that, upon removing the fanny pack from defendant’s backpack, he perceived that the fanny pack was heavy and contained a hard object “shaped like a pistol.” At that point, defendant, being booked 8 to 10 feet away, offered, “I can tell you what’s in there.” The sergeant inquired, “Yeah? What’s in there?,” to which defendant replied, “It’s a pistol.” In view of defendant’s detention and arrest, the location of the search and the sergeant’s admitted knowledge that the fanny pack contained a heavy pistol-shaped object, his question asking defendant what was contained inside the fanny pack was reasonably likely to trigger an incriminating statement — i.e., that the fanny pack contained a gun. As such, County Court erred in determining that defendant’s statements were spontaneous, and they should have been suppressed … . * * *

At the hearing, the sergeant confirmed that defendant’s backpack had already been secured when defendant was detained, handcuffed and placed in the rear seat of the vehicle — although it remains unclear at precisely what point defendant’s detention ripened into an arrest. The sergeant also established that law enforcement retained control of the backpack at all times thereafter and that he carried it into the station separately as defendant was escorted by another officer and booked in a different area. Defendant’s backpack was thus not on his person or within his immediate control or “grabbable area” at the time the search was conducted so as to raise concerns over evidence destruction … .  * * * Although the circumstances presented may have, upon a different record, supported the validity of an inventory search conducted pursuant to standardized police procedures, the People neither relied upon nor developed such a theory at the suppression hearing, electing instead to defend the search solely as one incident to arrest, and any passing attempt to raise that theory now is not properly before us … . On this record, we cannot agree that the People carried their burden to overcome the presumption of unreasonableness that attaches to a warrantless search, and the physical evidence therefore should have also been suppressed … . People v Pittman, 2026 NY Slip Op 03478, Third Dept 6-4-26

Practice Point: Here the statement by defendant that there was a weapon in his backpack was made in direct response to a police officer’s question. The statement, therefore, was not admissible as “spontaneous.” The statement and the weapon seized in a search based on the statement should have been suppressed.​

 

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