From This Week’s “Latest Posts” Section (Below):
When Will a “Special Relationship” Between an Insurance Broker and the Insured Make the Broker Liable for a Lapsed Policy?
S & M Bronx Inc. v Diversified Planning Brokerage LLC, 2026 NY Slip Op 03247, First Dept 5-21-26
When Will a Misrepresentation Give Rise to a “Fraudulent Inducement” Cause of Action Which Is Distinct from the Related Breach of Contract?
CSN Realty Corp. v Moussaieff, 2026 NY Slip Op 03228, First Deptt 5-21-26
If Mother and Father Don’t Appeal, Can the Attorney for the Child Appeal a Custody Ruling?
Matter of Abdoch v Abdoch, 2026 NY Slip Op 03219, CtApp 5-21-26
Does the “Justice for Injured Workers Act” (JIWA), Which Prohibits Collateral Estoppel Based On a Workers’ Comp Ruling, Apply to Rulings Made Before the JIWA Was Enacted?
Garcia v Monadnock Constr., Inc., 2026 NY Slip Op 03217, CtApp 5-21-26
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MOTHER STABBED HER TWO CHILDREN AND FILED AN INTENT TO PRESENT A PSYCHIATRIC DEFENSE IN THE CRIMINAL TRIAL; THE SURVIVING DAUGHTER AND FATHER SUED DEFENDANT HOSPITAL ALLEGING MOTHER WAS NEGLIGENTLY TREATED SHORTLY BEFORE THE STABBING; MOTHER WAIVED THE PHYSICIAN-PATIENT AND RELATED PRIVILEGES BY FILING THE NOTICE OF INTENT TO PRESENT A PSYCHIATRIC DEFENSE; PLAINTIFFS WERE ENTITLED TO DISCOVERY OF MOTHER’S MEDICAL RECORDS (FIRST DEPT).
The First Department, in a full-fledged opinion by Justice Renwick, reversing Supreme Court, determined non-party mother had waived the physician-patient and related privileges by filing a Criminal Procedure Law (CPL) section 250.10 notice of intent to present a psychiatric defense in the prior criminal trial. Mother had stabbed her two children. The instant personal injury action is brought by the surviving child and her father alleging mother was negligently treated by defendant hospital shortly before the stabbing. The plaintiffs sought discovery of mother’s medical records:
Generally, medical records are protected from disclosure (see CPLR 4504 [physician-patient privilege]; 4507 [psychologist-patient privilege]; Mental Hygiene Law § 33.13[c] [privilege for patient information reported to the Office of Mental Health or the Office for People with Developmental Disabilities]). However, a patient can waive those privileges “either expressly by authorizing the record’s release or implicitly by placing his or her mental condition in issue” … . However, simply denying the allegations in a complaint does not constitute such a waiver … . * * *
… [W]aiver of the physician-patient and related privileges in a criminal action generally carries over to a subsequent civil action, provided the defendant’s mental condition remains at issue … . * * *
We are of the view that … the filing of a CPL 250.10 notice of intent to present a psychiatric defense in the criminal case was sufficient to demonstrate that [mother] placed her mental condition at issue so as to waive her privilege to confidentiality of her medical, psychiatric, and mental health records maintained by [defendant]. . S.M. v City of New York, 2026 NY Slip Op 03248, First Dept 5-21-26
Practice Point: Filing a notice of intent to present a psychiatric defense in a criminal trial waives the physician-patient and related privileges and the waiver carries over to a subsequent related civil action.
PLAINTIFFS RAISED A QUESTION OF FACT WHETHER THERE WAS A “SPECIAL RELATIONSHIP” BETWEEN PLAINTIFFS AND DEFENDANT INSURANCE BROKERS SUCH THAT PLAINTIFFS COULD REASONABLY RELY ON THE BROKERS TO RENEW A POLICY (FIRST DEPT).
The First Department determined the defendant insurance brokers may be liable in negligence with respect to an audit which led to plaintiffs’ coverage being dropped. Whether the brokers can be held liable depends on whether there was a “special relationship” between the brokers and the plaintiffs upon which plaintiffs could reasonably rely. The plaintiffs raised a question of fact on the existence of a special relationship:
Supreme Court properly denied summary judgment on plaintiffs’ negligence claim because there are issues of fact concerning whether the parties had a special relationship, exceeding that of a traditional broker-client relationship. Plaintiffs testified that, among other things, defendants advised plaintiffs regarding insurance issues, addressed plaintiffs’ audits, and handled insurance policy changes … . Although defendants’ principal testified that the insurance carrier did not contact defendants during the audit that eventually led to plaintiffs’ coverage being dropped, one of the individual plaintiffs testified that he had worked with defendants for more than a decade, used defendants for all six of his businesses, and that he would send everything in his possession relating to insurance to defendants, who would in turn take care of it, including when plaintiffs received audit requests from the insurance carrier. In such a situation where “there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on,” a special relationship may arise thereby “creating an additional duty of advisement” even in the absence of a specific request from the insured to the broker … .
There are also issues of fact concerning which party was responsible for managing the renewal process as defendants’ involvement with previous audits may evince a course of conduct demonstrating that the renewals were in fact defendants’ responsibility … . The record evidence does not disprove as a matter of law that defendants’ inaction in renewing the policy did not proximately cause plaintiffs’ injuries … . S & M Bronx Inc. v Diversified Planning Brokerage LLC, 2026 NY Slip Op 03247, First Dept 5-21-26
Practice Point: Consult this decision for insight into the proof necessary to demonstrate a “special relationship” with insurance brokers such that the brokers can be held liable in negligence for failing to renew a client’s policy.
THE ABSENCE OF BODY-WORN CAMERA FOOTAGE OF THE INCIDENT WAS NEVER EXPLAINED; THE CORRECTION OFFICER’S VERSION OF EVENTS WAS CONTRADICTED BY PETITIONER AND THREE WITNESSES; THEREFORE THE TESTIMONY OF THE CORRECTION OFFICER, WHICH WAS CREDITED BY THE HEARING OFFICER, LACKED SUFFICIENT INDICIA OF RELIABILITY TO SATISFY THE SUBSTANTIAL EVIDENCE STANDARD (THIRD DEPT).
The Third Department, in a full-fledged opinion by Justice Garry, reversed the finding that petitioner-inmate violated prison disciplinary rules There was no body-worn camera footage of the incident, and no explanation for its absence. A single corrections officer wrote a report about the incident which was credited by the Hearing Officer. In her report the officer claimed petitioner “threw” a chair onto the floor and was yelling at other prisoners. The petitioner and three prisoners testified that petitioner did not act in anger, was not yelling at other prisoners, and the chair had been knocked or tipped over. The Third Department concluded the evidence was insufficient to support any disciplinary-rule violations:
… [W]here, as here, the record presents competing versions of a discrete event and the determination turns on the acceptance of one account over another, the reliability of the credited testimony must be assessed in context. That context includes the absence of any objective documentation of the incident where there is every reason to believe that such proof should have existed.
At the time of the subject incident, the Department of Corrections and Community Supervision had implemented a body-worn camera policy pursuant to internal directive, reflecting an institutional recognition that recording such encounters is imperative for both safety and transparency … . We need not decide the force of that directive to hold that it informs the nature of proof that may reasonably be expected in incidents of this kind. In the same vein, it must also be observed that, since the subject incident, the Legislature has codified the requirement of body-worn cameras in correctional settings … , thus underscoring the State’s recognition that objective evidence of interactions involving incarcerated individuals is not only critical but readily obtainable … .
Here, no such objective evidence was produced. Importantly, the record is entirely silent as to whether recording devices were being properly utilized and, if not, why not … . In the face of that evidentiary gap, we find that the credited testimony lacks sufficient indicia of reliability to satisfy the substantial evidence standard. We therefore reverse. Matter of McPherson v Hill, 2026 NY Slip Op 03216, Third Dept 5-21-26
Practice Point: In prison disciplinary hearings, the unexplained absence of body-worn camera footage of an incident at which the testifying correction officer was present may call into question the reliability of the correction officer’s testimony.
DEFENDANT’S “EXCEPTIONAL RESPONSE” TO THE “SEX OFFENDER COUNSELING AND TREATMENT PROGRAM” WARRANTED A DOWNWARD DEPARTURE FROM A LEVEL TWO SEX OFFENDER TO A LEVEL ONE SEX OFFENDER (THIRD DEPT).
The Third Department, reversing County Court, determined defendant was entitled to a downward departure from a level two sex offender to a level one sex offender based on his successful participation in sex offender treatment:
… [D]efendant submitted the monthly evaluations prepared by his instructor in his Sex Offender Counseling and Treatment Program. In the six monthly evaluations, defendant was awarded 95 out of a maximum of 96 points available, placing him in the “highly motivated” classification for each month, the highest category. Further, the instructor consistently praised defendant’s participation, including comments that defendant “continues to engage positively in program [and] exceed all program standards,” “continues to excel in program” and “continues to meet [and] exceed all program standards.” Given his nearly perfect score and the positive comments from his instructor, we conclude that defendant has demonstrated, by a preponderance of the evidence, an exceptional response to treatment so as to be a basis for a downward departure … . People v Mikalonis, 2026 NY Slip Op 03210, Third Dept 5-21-26
A MISREPRESENTATION OF PRESENT FACT, UNLIKE A MISREPRESENTATION OF FUTURE INTENT TO PERFORM UNDER A CONTRACT, WILL SUPPORT A FRAUDULENT INDUCEMENT CAUSE OF ACTION WHICH IS NOT DUPLICATIVE OF THE RELATED BREACH OF CONTRACT CAUSE OF ACTION (FIRST DEPT).
The First Department, reversing Supreme Court, determined the fraudulent inducement cause of action should not have been dismissed as duplicative of the breach of contract cause of action. The fraudulent inducement claim was based on an assertion of present fact. i.e., that the judgment debtor had sufficient capital to close on the property:
We reject defendants’ argument that the fraudulent inducement cause of action is duplicative of the breach of contract cause of action. “[A] misrepresentation of present fact, unlike a misrepresentation of future intent to perform under the contract, is collateral to the contract, even though it may have induced the plaintiff to sign it, and therefore involves a separate breach of duty” … . The alleged representations … that the judgment debtor had sufficient capital to close on the property were representations of present fact, not future intent to perform.
Similarly, we reject defendants’ argument that plaintiff seeks identical damages under the fraudulent inducement cause of action and the breach of contract cause of action. Under the circumstances of this case, at this early procedural stage plaintiff is entitled to maintain the fraudulent inducement claim in the alternative to the breach of contract claim … . This conclusion is especially true because the remedy available to plaintiff for fraudulent inducement under the “out-of-pocket rule” is not lost profits but rather “the actual pecuniary loss sustained as the direct result of the wrong” … . CSN Realty Corp. v Moussaieff, 2026 NY Slip Op 03228, First Deptt 5-21-26
Practice Point: Here the misrepresentation that the judgment debtor had sufficient funds to close was a misrepresentation of present fact which supported a fraudulent inducement cause of action distinct from the breach of contract cause of action.
THE GENERAL MUNICIPAL LAW CANNOT BE INTERPRETED TO ALLOW THE COMPETITIVE BIDDING PROCESS FOR PUBLIC WORKS TO BE CIRCUMVENTED BY “PIGGYBACKING” A NEW PUBLIC WORKS PROJECT ON A PRIOR PUBLIC WORKS PROJECT AWARDED AFTER COMPETITIVE BIDDING (THIRD DEPT).
The Third Department, in a full-fledged opinion by Justice Ceresia, determined that the General Municipal Law could not be interpreted to circumvent the competitive bidding process for public works contracts. Here the school district, after a competitive bidding process, had hired Smith Site Development for the replacement of a sewer line and a parking lot at the district’s high school. The district sought to hire Smith again for the heating, ventilation and air conditioning renovations and classroom construction at an elementary school. The district unsuccessfully argued that the General Municipal Law allowed the elementary-school work to be “piggybacked” on the prior sewer-and-parking-lot-contract and thereby avoid the competitive bidding process:
In determining whether General Municipal Law § 103 (16) provides a limited exception to General Municipal Law § 103 (1), or, as the district argues, a broader alternative to that general rule, we begin by observing that while subsection (1) specifically references public works contracts, subsection (16) does not. Although the Legislature could have explicitly identified public works contracts as being subject to the piggybacking provision of subsection (16), it chose not to do so. Instead, by its plain language, subsection (16) permits piggybacking only in a specific set of circumstances that is, when it comes to purchasing certain specified items (“apparatus, materials, equipment or supplies”) or arranging for services related to those specific items (General Municipal Law § 103 [16]). This statutory structure signifies that piggybacking applies only in certain limited circumstances, and we agree with Supreme Court that the omission of language referencing public works contracts from the piggybacking provision suggests that the Legislature did not intend to allow them to be exempt from competitive bidding … . Matter of Daniel J. Lynch, Inc. v Board of Educ. of the Me.-Endwell Cent. Sch. Dist., 2026 NY Slip Op 03209, Third Dept 5-21-26
RESOLVING A SPLIT OF AUTHORITY, THE COURT OF APPEALS HELD THE ATTORNEY FOR THE CHILD (AFC) HAS THE AUTHORITY TO APPEAL A CUSTODY DETERMINATION (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Singas, reversing the Fourth Department and addressing a split of authority, determined the attorney for the child (AFC) has the authority to appeal a custody determination if the child is aggrieved:
The Appellate Division Departments have split over whether an AFC can appeal a custody determination on behalf of their client when neither parent-party has appealed. The Second Department has endorsed the AFC’s authority to appeal on behalf of their client, emphasizing that the Family Court Act expressly “recognizes that an [AFC] has the right to pursue an appeal on behalf of the child” because it permits the AFC to file a notice of appeal … . The First and Third Departments have adopted the Second Department’s reasoning … . The Fourth Department has taken a different approach, dismissing appeals taken solely by an AFC when neither parent-party appeals or otherwise indicates their support for the child’s appeal, reasoning that a “child in a custody matter does not have ‘full-party status’ ” and therefore cannot force their parent to ” ‘litigate a petition that [they] ha[ve] since abandoned’ … . * * *
The Family Court Act plainly authorizes an AFC to appeal on behalf of the subject child even though the child is not a full party to the custody proceedings. However, the subject child—like any appealing party—must still meet the CPLR’s aggrievement requirement and other applicable jurisdictional requirements (see CPLR 5511 [only an “aggrieved party” may appeal]; Family Ct Act § 165 [a] [Family Court proceedings follow the provisions of the CPLR unless a different procedure is set forth in the Family Court Act]). Here, the children were aggrieved as the AFC argued against modifying the original custody order designating mother as the primary custodial parent and advocated that the children wished to remain primarily with her, but Family Court modified the custody order by awarding mother and father joint custody and shared residency. Matter of Abdoch v Abdoch, 2026 NY Slip Op 03219, CtApp 5-21-26
Practice Point: The attorney for the child (AFC) can appeal a custody determination where the child is aggrieved.
THE NYS OFFICE OF CHILDREN AND FAMILY SERVICES (OCFS) DID NOT HAVE THE AUTHORITY TO CREATE THE “HOST FAMILY HOME” PROGRAM AS AN ALTERNATIVE TO THE STATUTORY FOSTER CARE PROGRAM (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Cannataro, reversing the Appellate Division, determined the NYS Office of Children and Family Services (OCFS) did not have the authority to create the “Host Family Home” program as an alternative to the state’s statutory foster care regime:
The voluntary foster care statutes … mandate judicial involvement and oversight at several key junctures. At the outset, OCFS must petition Family Court to approve any placement expected to last longer than 30 days. The court may only do so after assessing that the placement was “knowingly and voluntarily” sought by the parent; that the placement would be “in the best interest of the child”; that “reasonable efforts were made . . . to prevent or eliminate the need for removal of the child from [their] home;” and that OCFS complied with the other miscellaneous requirements of Social Services Law § 384-a … . If placement lasts for at least eight months, the Family Court Act requires that Family Court hold a “permanency hearing” where it assesses the child’s well-being in the foster home and determines what, if any, further action would serve the best interests of the child … . These hearings must be held every six months thereafter until termination of the placement, or until the child ages out of foster care. Both parents and children are entitled to assigned counsel during these proceedings … . * * *
The Host Family Home program … purports to relieve its participants from some of the most important protections in the foster care system. Under the program, courts need not approve placements lasting longer than 30 days, nor are they required to assess the well-being of the child if they have been left in foster care for over eight months. Because the courts are not involved, the State need not provide assigned counsel to parents or children to advocate for them during these otherwise mandatory hearings. OCFS is likewise not required to identify known friends or relatives who might care for the child, nor offer any government-paid preventive services, before allowing parents to access host family care.
The Host Family Home program’s elimination of these protections risks diverting children away from the voluntary foster care system. Matter of Lawyers for Children v New York State Off. of Children & Family Servs.. 2026 NY Slip Op 03218, CtApp 5-21-26
THE JUSTICE FOR INJURED WORKERS ACT (JIWA) PROHIBITS GIVING COLLATERAL ESTOPPEL EFFECT TO WORKERS’ COMMPENSATION BOARD RULINGS IN SUBSEQUENT PERSONAL INJURY ACTIONS STEMMING FROM THE SAME INCIDENT, EVEN WHEN THE WORKERS’ COMPENSATION BOARD RULING PREDATES THE ENACTMENT OF THE JIWA (CT APP).
The Court of Appeals, affirming the Appellate Division’s reversal of Supreme Court on a different ground, determined the Justice for Injured Workers Act (JIWA), which prohibits giving a Workers’ Compensation Board’s ruling collateral estoppel effect in a subsequent personal injury action, applies to Workers’ Compensation Board rulings which predate the enactment of the JIWA. The Appellate Division described the application of collateral estoppel in this context as the retroactive application of the JIWA. The Court of Appeals disagreed, stating that a “statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute’s enactment:”
At the time Supreme Court rendered its decision, JIWA had been in effect for several months. By its plain terms, JIWA, as of its effective date, prohibits courts from giving collateral estoppel effect to workers’ compensation decisions arising out of the same occurrence, except with respect to the existence of an employer-employee relationship (see Workers’ Compensation Law § 118-a). Pursuant to a straightforward prospective application of JIWA, Supreme Court therefore erred in giving collateral estoppel effect to the 2021 [pre-enactment] decision of the Workers’ Compensation Board. * * *
As of JIWA’s effective date of December 30, 2022, courts are prohibited from giving collateral estoppel effect to workers’ compensation decisions in pending or future lawsuits, except as to the existence of an employer-employee relationship. Because the statute applied at the time Supreme Court rendered its decision, the court erred in granting defendant’s motion. Garcia v Monadnock Constr., Inc., 2026 NY Slip Op 03217, CtApp 5-21-26
Practice Point: Here, although the JIWA was applied to a Workers’ Compensation Board ruling which predated the enactment of the JIWA, it was not necessary to apply the JIWA “retroactively.” Only a straightforward prospective application of the JIWA was required.
PURCHASING AND FORECLOSING ON MORTGAGES IN NEW YORK DOES NOT CONSTITUTE “DOING BUSINESS IN NEW YORK” WITHIN THE MEANING OF THE LIMITED LIABILITY COMPANY LAW; THE LLC CANNOT SUE IN NEW YORK (FIRST DEPT).
The First Department, reversing Supreme Court, determined plaintiff limited liability company (NS194) could not sue in New York because purchasing and foreclosing on mortgages in New York does not constitute doing business in New York under the Limited Liability Company Law:
Supreme Court erred in directing plaintiff to prove NS194’s compliance with Limited Liability Company Law § 802 … . Defendants failed to rebut the presumption that NS194 was not conducting business within the state and lacked capacity to sue pursuant to Limited Liability Company Law § 802. Plaintiff’s conduct of purchasing and foreclosing on mortgages in New York does not constitute doing business in this state (see Limited Liability Company Law § 803[a][1] [“maintaining or defending any action or proceeding” is not “doing business in this state”] …). … ([S]ee Star201, LLC v Martinez, AD3d , 2026 NY Slip Op 02144, *2 [2d Dept Apr. 8, 2026] [“the mere maintenance of an action [for foreclosure] by a foreign corporation does not constitute doing business within the State”] …). Wilmington Sav. Fund Socy. v Okoronkwo, 2026 NY Slip Op 03253, First Dept 5-21-26
Practice Point: An LLC which purchases and forecloses on mortgages in New York is not “doing business in New York” and therefore cannot sue in New York.
IF A JUDGE DIRECTS THAT A PROPOSED JUDGMENT BE SETTLED OR SUBMITTED ON NOTICE, THE JUDGMENT MUST BE SUBMITTED FOR SIGNATURE WITHIN 60 DAYS OR THE MATTER WILL BE DEEMED ABANDONED PURSUANT TO 22 NYCRR 202.48; HERE, HOWEVER, THE JUDGE DID NOT DIRECT THAT THE PROPOSED JUDGMENT BE SUBMITTED ON NOTICE, SO 22 NYCRR 202.48 AND THE 60-DAY DEADLINE DID NOT APPLY (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the plaintiffs did not abandon the action by failing to submit a proposed judgment within 60 days of the inquest awarding damages to plaintiffs after defendants’ default. The 60-day deadline is only triggered when a judge directs the order to be settled or submitted on notice, not the case here:
On January 26, 2022, after an inquest, the court awarded the plaintiffs $188,560 in damages as against both defendants. The plaintiffs did not submit a proposed judgment until November 2022.
Thereafter, the defendants moved, inter alia, pursuant to 22 NYCRR 202.48 to dismiss the complaint as abandoned. In an order dated April 29, 2024, the Supreme Court … granted that branch of the motion. …
“Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted” (22 NYCRR 202.48[a]; see Funk v Barry, 89 NY2d 364, 367 …). “Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown” (22 NYCRR 202.48[b]). “However, 22 NYCRR 202.48 does not apply where the court merely directs a party to submit an order or judgment without expressly directing that the order or judgment be submitted on notice” … . Here, since the Supreme Court did not direct that a judgment based on its decision after the inquest be settled or submitted on notice, the plaintiffs were not required to comply with 22 NYCRR 202.48 … . Rosenberg v Tool Time Constr. Corp., 2026 NY Slip Op 03192, Second Dept 5-20-26
Practice Point: If the judge does not direct that a proposed judgment be submitted on notice, 22 NYCRR 202.48, which requires that the judgment be submitted for signature within 60 days, does not apply.
DEFENDANT’S AVERMENTS IN HER MOTION TO VACATE HER CONVICTION BY GUILTY PLEA WERE SUFFICIENT TO WARRANT HEARINGS ON WHETHER HER PARTICIPATION IN THE OFFENSE WAS THE RESULT OF HER BEING A VICTIM OF SEX TRAFFICKING AND WHETHER HER COUNSEL WAS INEFFECTIVE FOR FAILING TO INFORM HER OF THE DEPORTATION CONSEQUENCES OF HER PLEA (SECOND DEPT).
The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on her motion to vacate the judgment of conviction. The motion to vacate argued defendant participated in the offense as a result of being a victim of sex trafficking within the meaning of CPL 440.10. In addition, defendant argued her counsel was ineffective in failing to inform her of the deportation consequences of her guilty plea:
…. [T]he defendant averred … that the underlying offense occurred within two to five years of her emigration to the United States, that she was initially hired to provide massages that did not require her to perform sex acts, and that after approximately two months, her boss moved her to another location and instructed her to perform sex acts on clients. The defendant further averred that she twice attempted to leave, but that each time her boss threatened to report the defendant’s activities to either her husband or the authorities. Moreover, in addition to her affidavit, the defendant submitted a letter from the Office of Temporary and Disability Assistance dated November 4, 2022, which stated that the defendant “me[t] the criteria for confirmation as a human trafficking victim in New York State.” Under these circumstances, the defendant’s allegations were sufficient to raise an issue of fact as to whether her participation in the offense underlying her conviction was the result of having been a victim of sex trafficking. * * *
The defendant’s averments, including that she feared for her safety if she returned to China, sufficiently alleged that a decision to reject the plea offer would have been rational … . Therefore, the defendant was also entitled to a hearing on that branch of her motion which was pursuant to CPL 440.10 to vacate the judgment on the ground that she was deprived of the effective assistance of counsel by her counsel’s allegedly erroneous advice regarding the immigration consequences of her plea … . People v L.F., 2026 NY Slip Op 03186, Second Dept 5-20-26
Practice Point: There are statutory grounds for vacation of a judgment of conviction because defendant’s participation in the offense was the result having been a victim of sex trafficking. (CPL 440.10).
THERE WAS NO EVIDENCE DEFENDANT, WHO WAS FOLLOWING THE SHOOTER’S CAR, WAS AWARE THE SHOOTER INTENDED TO KILL A RIVAL GANG MEMBER, OR EVEN AWARE THE SHOOTER WAS ARMED; THEREFORE THE CONSPIRACY TO COMMIT MURDER CHARGE SHOULD HAVE BEEN DISMISSED (SECOND DEPT).
The Second Department determined defendant’s motion for a trial order of dismissal should have been granted. Defendant was following the shooter’s car when the shooter shot and killed a member of a rival gang. There was no evidence defendant knew the shooter intended to kill or even that the shooter was armed. Therefore the evidence did not demonstrate that defendant shared the shooter’s intent to kill:
While the evidence, viewed in the light most favorable to the People, showed that the defendant conspired with others to retaliate against rival gang members, it failed to establish that the defendant entered into a conspiracy with the goal of committing murder in the second degree … . The People failed to present direct or circumstantial evidence establishing that the defendant was aware that Kelson or Oliveras were armed or had the intent to commit murder or that the defendant, in fact, joined a conspiracy with the goal of committing murder … . For the same reasons, the evidence was insufficient to establish that the defendant believed that he was rendering aid to a person who intended to commit murder. People v Hewitt, 2026 NY Slip Op 03184, Second Dept 5-20-26
Practice Point: Consult this decision for insight into the proof necessary for a conspiracy-to-commit-murder conviction. There must be evidence the defendant shared the killer’s intent, not the case here.
THE LABOR LAW LIABILITY EXEMPTION FOR OWNERS OF ONE AND TWO FAMILY HOMES DOES NOT APPLY WHERE THE WORK HAS A COMMERCIAL PURPOSE, I.E., RENOVATION OF THE PROPERTY FOR SALE OR RENTAL; HERE THE DEFENDANTS DID NOT ELIMINATE QUESTIONS OF FACT ABOUT WHETHER THE WORK WAS FOR A COMMERCIAL PURPOSE (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the Labor Law 240(1) and 241(6) causes of action against the owner of a one or two-family dwelling should not have been dismissed on the ground that owners of one and two-family dwellings who do not control the work, are exempt form Labor Law liability. The exemption depends on whether the work serves a residential or commercial purpose. Here, without describing the facts, the Second Department held there was a question of fact about whether the work served a residential or commercial purpose:
Labor Law §§ 240(1) and 241(6) impose nondelegable duties upon property owners to comply with certain safety practices for the protection of workers engaged in certain activities. Both statutes exempt from liability “owners of one and two-family dwellings who contract for but do not direct or control the work” (id. §§ 240[1]; 241[6]). However “‘[r]enovating a residence for resale or rental plainly qualifies as work being performed for a commercial purpose'” … . Where the property serves both residential and commercial purposes, “[a] determination as to whether the exemption applies in a particular case turns on the nature of the site and the purpose of the work being performed, and must be based on the owner’s intentions at the time of the injury” … .
Here … the defendants failed to eliminate triable issues of fact as to whether they were entitled to the homeowner’s exemption to Labor Law §§ 240(1) and 241(6), including whether the premises had a commercial purpose and whether the work the plaintiff performed related to a commercial purpose of the premises … . Moreno v Hossain, 2026 NY Slip Op 03159, Second Dept 5-20-26
Practice Point: The exemption from Labor Law liability for owners of one and two-family homes does not apply when the purpose of the work is commercial, renovation for sale or rental, for example.
THE BANK SENT THE RPAPL 1304 NOTICE OF FORECLOSURE TO THE TWO BORROWERS IN THE SAME ENVELOPE, A VIOLATION OF RPAPL 1304; FORECLOSURE COMPLAINT DISMISSED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the foreclosure complaint should have been dismissed because the RPAPL 1304 notice of foreclosure was mailed to both borrowers in the same envelope:
RPAPL 1304(1) provides that “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, . . . including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower.” “Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action” … , and “the plaintiff has the burden of establishing satisfaction of this condition” … . “[T]he mailing of a 90-day notice jointly addressed to two or more borrowers in a single envelope is not sufficient to satisfy the requirements of RPAPL 1304, and . . . the plaintiff must separately mail a 90-day notice to each borrower as a condition precedent to commencing the foreclosure action” … * * *
… [T]he defendants established that the plaintiff failed to comply with RPAPL 1304 since it is undisputed that a jointly addressed 90-day notice, rather than individually addressed notices in separate envelopes, was sent to the defendants … . HSBC Bank USA, N.A. v Palmore, 2026 NY Slip Op 03152, Second Dept 5-20-26
Practice Point: The bank’s strict compliance with the notice of foreclosure requirements in RPAPL 1304 is a condition precedent to any foreclosure action. Here, sending the RPAPL 1304 notice of foreclosure to the two borrowers in the same envelope violated RPAPL 1304 requiring dismissal of the foreclosure complaint.
WHERE THE STATUTORY PRECONDITIONS FOR DISMISSAL OF A COMPLAINT FOR NEGLECT TO PROSECUTE (CPLR 3216) ARE NOT MET, THE COURT HAS NO AUTHORITY TO, SUA SPONTE, DISMISS THE ACTION; RATHER, THE ACTION MUST BE RESTORED TO THE ACTIVE CALENDAR (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the judge did not have the authority to, sua sponte, dismiss the complaint for neglect to prosecute. At the time the purported 90-day notice was issued by the judge, issue had not yet been joined. In addition, the purported 90-day notice did not include all the information required by CPLR 3216(b):
“CPLR 3216 permits a court, on its own initiative, to dismiss an action for want of prosecution where certain conditions precedent have been complied with” … . “[A] court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met” … . Here, the Supreme Court was without authority to issue a 90-day notice since issue was not joined in the action … .
In addition, “[p]ursuant to CPLR 3216(b), an action cannot be dismissed pursuant to CPLR 3216(a) unless a written demand is served upon the party against whom such relief is sought in accordance with the statutory requirements, along with a statement that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him [or her] for unreasonably neglecting to proceed” … . Here, there is no evidence in the record that the plaintiff was served with a written demand as required by CPLR 3216. Moreover, the conditional order of dismissal, which, in effect, served as a 90-day notice pursuant to CPLR 3216, was defective in that it did not state that the plaintiff’s failure to comply with the demand would serve as a basis for the Supreme Court, on its own motion, to dismiss the action for failure to prosecute … . Further, the record demonstrates that no such motion was ever made, nor was there entry of an order of dismissal. Therefore, the action should have been restored to the active calendar without considering whether the plaintiff had a reasonable excuse for its delay in moving to vacate the conditional order of dismissal … . Deutsche Bank Natl. Trust Co. v Poyer, 2026 NY Slip Op 03145, Second Dept 5-20-26
Practice Point: An action cannot be dismissed by a judge, sua sponte, for failure to prosecute if (1) issue had not yet been joined, or (2) if all the statutory preconditions for dismissal pursuant to CPLR 3216 have not been met. Rather, the action must be restored to the active calendar.
THE SCAFFOLD FROM WHICH PLAINTIFF FELL HAD NO SAFETY RAILINGS AND THE SCAFFOLD WOBBLED AND COLLAPSED BECAUSE OF THE KICKBACK FROM A HAMMER DRILL PLAINTIFF WAS USING; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).
The Second Department, reversing Supreme Court, determined plaintiff in this Labor Law 240(1) action was entitled to summary judgment. Plaintiff demonstrated the scaffold from which he fell did not have safety railings and the scaffold wobbled and collapsed because of the kickback from a hammer drill he was using:
… [T]he plaintiff established a violation of Labor Law § 240(1) through his deposition testimony that he was injured when he fell from a scaffold that lacked safety rails and that he was not otherwise provided an appropriate safety device. The plaintiff further testified that the kickback from the hammer drill he was using caused the scaffolding to wobble and collapse, proximately causing both his fall and his subsequent injuries. Thus, the plaintiff established, prima facie, that the defendants violated Labor Law § 240(1), and that this violation was a proximate cause of his injuries … . Correa v NY Developers & Mgt., LLC, 2026 NY Slip Op 03143, Second Dept 5-20-26
Practice Point: A fall from a scaffold with no safety railings warrants summary judgment under Labor Law 240(1); a fall from a scaffold which wobbles and collapses because of the kickback from a hammer drill similarly warrants summary judgment under Labor Law 240(1).
THE JURY RENDERED A VERDICT IN FAVOR OF PLAINTIFF, FINDING THAT DEFENDANT UNDULY INFLUENCED DECEDENT TO NAME HIM AS THE SOLE BENEFICIARY OF TWO BROKERAGE ACCOUNTS; THE CONCLUSORY AND SPECULATIVE PROOF OF UNDUE INFLUENCE DID NOT SUPPORT THE VERDICT; DEFENDANT’S MOTION FOR JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the defendant’s post-verdict motion for judgment as a matter of law (CPLR 4401) dismissing the complaint should have been granted. Plaintiff alleged defendant unduly influenced the decedent to remove plaintiff as a beneficiary of two brokerage accounts and name defendant as the sole beneficiary. The court explained the shifting burdens of proof:
“‘A motion for judgment as a matter of law pursuant to CPLR 4401 or 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party'” … . “In determining whether the defendant has met this burden, a court must accept the plaintiff’s evidence as true and accord the plaintiff the benefit of every reasonable inference which can reasonably be drawn from the evidence presented at trial” … .
“Generally, the burden of proving undue influence rests with the party asserting its existence” … . “Where, however, the existence of a confidential relationship is established, the burden shifts to the beneficiary of the transaction to show that the transaction is fair and free from undue influence” … . “‘In order to demonstrate the existence of a confidential relationship, there must be evidence of circumstances that demonstrate inequality or a controlling influence'” … .
… [T]he plaintiff did not establish that a confidential relationship existed between the decedent and the defendant … . * * *
As a result, the burden of proving undue influence remained upon the plaintiff … . * * *
… [P]laintiff presented only conclusory and speculative evidence that the defendant exercised undue influence over the decedent … . “‘[A] mere showing of opportunity and even of a motive to exercise undue influence does not justify a submission of that issue to the jury, unless there is in addition evidence that such influence was actually utilized'” … . Collins v Denaro, 2026 NY Slip Op 03142, Second Dept 5-20-26
Practice Point: Consult this decision for insight into the shifting burdens of proof applied to a motion for a judgment as a matter of law made by a defendant after a plaintiff’s verdict. Here the appellate court determined the conclusory and speculative evidence did not support the jury’s verdict.
THIS LAWSUIT BY A PENNSYLVANIA PENSION FUND AGAINST A LONDON BANKING AND FINANCIAL SERVICES COMPANY TRIGGERED THE APPLICATION OF NEW YORK’S CONFLICT-OF-LAW RULES (“PROCEDURAL” VS “SUBSTANTIVE”) AND THE “FORUM NON CONVENIENS” DOCTRINE (SECOND DEPT).
The Second Department, applying conflict-of-law rules, determined the complaint in this shareholder derivative action should not have been dismissed based on plaintiff’s lack of standing. But the complaint should have been conditionally dismissed on “forum non conveniens” grounds:
The plaintiff commenced this shareholder derivative action in the Supreme Court, Nassau County. The plaintiff, the trustee of a Pennsylvania pension fund, is a shareholder in the nominal defendant Standard Chartered PLC (hereinafter SC). SC is a multinational banking and financial services company. SC is publicly owned, is registered and organized under the laws of England and Wales, and is headquartered in London. The nominal defendant Standard Chartered Holdings, Ltd. (hereinafter SC Holdings) is a wholly-owned subsidiary of SC. Nonparty Standard Chartered Bank (hereinafter SC Bank) is a wholly-owned subsidiary of SC Holdings. SC Bank, an international bank, is licensed to operate a foreign bank branch in New York. * * *
Since the procedural law of the forum typically applies under our conflict-of-law rules, the plaintiff’s failure to commence the action in England and Wales or Northern Ireland does not bar it from relying on the UK Companies Act to establish derivative standing in New York … . * * *
… [T]he plaintiff is the trustee of a Pennsylvania pension fund, and SC is registered and organized under the laws of England and Wales and is headquartered in London. None of the individual defendants reside in New York. Further, the central actionable events transpired in the United Kingdom, where SC’s directors and officers held their meetings. Although the plaintiff contends that SC presided over a money laundering scheme centered on SC Bank’s New York branch, its derivative claims center on management decisions made in the United Kingdom … . Further, it is undisputed that English substantive law governs the plaintiff’s claims. Under these circumstances, the Supreme Court should have conditionally granted SC’s motion to dismiss the amended complaint insofar as asserted against it pursuant to CPLR 327 on the ground of forum non conveniens, as the burden which would be imposed upon the courts of this State if this action was retained would be substantial … . City of Philadelphia Bd. of Pensions & Retirement v Winters, 2026 NY Slip Op 03141, Second Dept 5-20-26
Practice Point: Consult this decision for insight into the application of New York’s conflict-of-laws rules and the “forum non conveniens” doctrine in a lawsuit brought in New York by a Pennsylvanian pension fund against a London banking and financial services company.
A SERIES OF REMARKS MADE BY HIS SERGEANT OVER A PERIOD OF YEARS RAISED QUESTIONS OF FACT ABOUT WHETHER THE REMARKS WERE MOTIVATED BY RACIAL ANIMUS; THE COMPLAINT STATED CAUSES OF ACTION PURSUANT TO THE NYC HUMAN RIGHTS LAW (FIRST DEPT).
The First Department, reversing Supreme Court, determined plaintiff’s racial discrimination complaint pursuant to the NYC Human Rights Law should not have been dismissed:
Plaintiff stated a cause of action for racial discrimination under the City HRL (see CPLR 3211[a][7]). … [Sergeant Martin] Toczek made many statements, both in the office of the NYPD Auto Crimes Unit and on a text thread with his subordinates including plaintiff, criticizing racial justice protests in the National Football League by Colin Kaepernick and other NFL players. On one occasion, plaintiff, who is Black, stated to Toczek that the players had a constitutional right to protest, and Toczek replied, “yeah, . . .but it’s my right . . . if I want to like [B]lack people.” Toczek also shared articles about Black NFL players committing crimes and described them as “perps.”
… Toczek directed plaintiff to accompany two White detectives in apprehending an arrestee who “had a history of assaulting police officers who tried to arrest him.” The arrestee had previously assaulted Dan Fox, a white Auto Crimes Unit detective. Plaintiff was on restricted duty at the time because of a shoulder injury and could not carry a gun or a shield. Toczek told plaintiff not to worry because, “[w]hen he sees you, he’s not going to fight, look how big you are,” and further suggested that the arrestee would not assault plaintiff “because, look at [Fox], look at him and look at you.” Plaintiff is 6’7″ and weighs about 260 pounds. Plaintiff suffered a serious injury when the arrestee resisted arrest; he retired shortly afterward with accidental disability benefits for his line-of-duty injury. * * *
… [I]t is a jury issue as to whether Toczek’s other comments about the NFL reflected racial animus. A reasonable juror could conclude that, once Toczek signaled that his objection to the protests was at least in part about race, every other reference to the protests and the NFL became infused with racial animus. * * *
The complaint … sufficiently alleges that Toczek’s assignment of plaintiff to the potentially dangerous arrest was “motivated at least in part by” plaintiff’s race … . * * *
… [A] reasonable juror could interpret Toczek’s assertion that plaintiff’s appearance, including his size, would deter violence from the arrestee, as an attempt to invoke the “classic and common racist trope that Black men are inherently threatening or dangerous” … . Taylor v City of New York, 2026 NY Slip Op 03128, First Dept 5-19-26
Practice Point: Consult this decision for insight into when remarks made over a period of years by a supervisor in the work place can raise a question of fact about whether the remarks were motivated by racial animus and constituted violations of the NYC Human Rights Law.
IF A LADDER IS NOT SECURED AND IT MOVES, IRRESPECTIVE OF WHETHER IT MOVES BEFORE OR AFTER PLAINTIFF LOSES HIS BALANCE, SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION IS WARRANTED; PLAINTIFF’S PURPORTED STATEMENT IN AN UNCERTIFIED MEDICAL RECORD WHICH WAS NOT GERMANE TO TREATMENT WAS INADMISSIBLE (FIRST DEPT).
The First Department, reversing Supreme Court, determined (1) the fact that the ladder was not secured and moved warranted summary judgment on the Labor Law 240(1) cause of action, and (2) plaintiff’s purported remark which was included in an uncertified medical record and was not germane to treatment was inadmissible:
Plaintiff’s testimony that he fell because he lost his balance and the ladder on which he was standing shook established his prima facie entitlement to summary judgment on the issue of liability on his Labor Law § 240 (1) claim … . Contrary to the motion court’s conclusion, “[i]t is irrelevant whether plaintiff initially lost his balance before or after the ladder [shook] because . . . the ladder failed to remain steady under plaintiff[ ] . . . as he performed his work” … . Nor is this “a case where an issue of fact is raised as to whether plaintiff simply lost his balance or footing while working on a properly secured ladder. Indeed, plaintiff’s fall was directly related to the work that he was performing, as opposed to his own misstep” … . “Defendants were obligated to ensure that the ladder was secured to something stable” … . “Where a ladder is offered as a work-site safety device, it must be sufficient to provide proper protection. It is well settled that failure to properly secure a ladder, to ensure that it remain[s] steady and erect while being used, constitutes a violation of Labor Law § 240 (1)” … . …
Defendants failed to raise an issue of fact as to whether plaintiff was the sole proximate cause of his accident. The only evidence on which defendants relied was a recorded statement purportedly made by plaintiff after his accident that appears on a single page from his medical records. However, not only was the medical record uncertified and, therefore, inadmissible, but plaintiff’s description of the accident in that statement was not germane to his diagnosis or treatment … . Diaz v Boston Props., Inc., 2026 NY Slip Op 03114, First Dept 5-19-26
Practice Point: Ladders which are not secured to something stable violate Labor Law 240(1).