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DEFENDANTS OPENED A COMPETING HAIR SALON AND WRONGFULLY ACCESSED PLAINTIFF’S ACCOUNT SOFTWARE TO BOOK CLIENTS; THE COMPLAINT STATED CAUSES OF ACTION FOR TRESPASS TO CHATTELS, TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS AND BREACH OF THE EMPLOYMENT CONTRACT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that plaintiff’s causes of action for trespass to chattels, tortious interference with business transactions and breach of contract should not have been dismissed. Plaintiff alleged defendants opened a competing hair salon and accessed and used plaintiff’s computer program for booking clients by using plaintiff’s username and password:

To establish a cause of action to recover damages for trespass to chattels, the plaintiff is required to establish that the defendants “intentionally, and without justification or consent, physically interfered with the use and enjoyment of personal property in [plaintiff’s] possession” … . “Liability for trespass to chattels will be imposed only if the interference results in harm to the physical condition, quality or value of the chattel or if the owner is deprived of use of the chattel for a substantial time” … . Interference with information stored on a computer may give rise to trespass to chattels if the plaintiff is dispossessed of the information or the information is impaired as to its condition, quality, or value … . …

[To] “… set forth a cause of action sounding in tortious interference with business relations, a plaintiff is required to plead that the defendant interfered with the plaintiff’s business relationships either with the sole purpose of harming the plaintiff or by means that were unlawful or improper” … . “This standard is met where the interference with prospective business relations was accomplished by wrongful means or where the offending party acted for the sole purpose of harming the other party” … . The wrongful means supporting a cause of action alleging intentional interference with a business relationship includes acts that constitute a crime or independent tort or other egregious wrongdoing … . Hello Beautiful Salons, Inc. v Dimoplon, 2026 NY Slip Op 00242, Second Dept 1-21-26

Practice Point: Using plaintiff hair salon’s credentials to access plaintiff’s business-account software to wrongfully book clients for defendants’ competing hair salon constitutes the tort of “trespass to chattels.”

 

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IN THIS CHILD VICTIMS ACT ACTION AGAINST A SCHOOL AND SCHOOL EMPLOYEES ALLEGING SEXUAL ABUSE OF PLAINTIFFS-STUDENTS, AN ACTION ALLEGING NEGLIGENT FAILURE TO PROVIDE A SAFE AND SECURE ENVIRONMENT WAS DISMISSED AS DUPLICATIVE OF THE NEGLIGENT SUPERVISON AND RETENTION CAUSES OF ACTION (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court in this Child Victims Act case, determined that the cause of action alleging defendant school’s negligent failure to provide a safe and secure environment for plaintiff-students, although sufficiently pled, must be dismissed as duplicative of the negligent supervision and negligent retention causes of action:

… [T]he duty element for plaintiffs’ [“failure to provide a safe and secure environment”] claim is premised on the special duty owed to them under the doctrine of in loco parentis. … [T]eachers and schools owe their students “such care of them as a parent of ordinary prudence would observe in comparable circumstances” …. . This duty stems from the fact that schools “in assuming physical custody and control over [their] students, effectively take[] the place of parents and guardians” … . Negligence claims based on in loco parentis require actual or constructive notice to the school of previous similar conduct … .

Although plaintiffs adequately pleaded a claim for negligent failure to provide a safe and secure environment, this claim should have been dismissed as duplicative of plaintiffs’ claims for negligent supervision and negligent retention. A cause of action is duplicative when it relies on the same facts and seeks the same relief as another cause of action … . Significantly, “‘it is not the theory behind a claim that determines whether it is duplicative,’ but rather the conduct alleged and the relief sought” … .

Here, the fact that the cause of action for negligent failure to provide a safe and secure environment is based on a different theory — the duty of in loco parentis — than the other causes of action pleaded is not germane to whether it is duplicative. Rather, the claim is duplicative because the conduct alleged and the relief sought, for both the failure to provide a safe and secure environment and the negligent supervision and retention claims, are identical. John Doe 42 v Yeshiva Univ., 2026 NY Slip Op 00225, First Dept 1-20-26

Practice Point: Consult this decision for an explanation of duplicative causes of action. Here the action for negligent failure to provide a safe and secure environment was deemed duplicative of the actions for negligent supervision and negligent retention, even though it was based on a different theory (in loco parentis).

 

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THE FACT THAT THE CRITERIA FOR PIERCING THE CORPORATE VEIL WERE NOT MET DID NOT PRECLUDE AN ACTION AGAINST A CORPORATE OFFICER INDIVIDUALLY FOR PARTICIPATING IN AND BENEFITING FROM A TORT, HERE THE MISAPPROPRIATION OF TRADE SECRETS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined that the fact that the criteria for piercing the corporate veil were not met did not preclude an action against a corporate officer individually if the officer participates in and benefits from the commission of a tort:

Supreme Court improperly dismissed the misappropriation of trade secrets cause of action as asserted against the individual defendants. In granting the motion to dismiss against those defendants, the court limited its analysis of their liability to the issue of whether they completely dominated the corporation with respect to the transaction attacked, finding that there was no basis to pierce the corporate veil. However, even where the corporate veil is not pierced, a corporate officer who participates in and benefits from the commission of a tort may still be held individually liable … . The record presents sufficient evidence regarding the individual defendants’ participation, for their own personal gain, in the corporate defendant’s allegedly tortious acts, thus raising issues of material fact as to their personal liability. Thus, the claim for misappropriation of trade secrets should be reinstated … . Century First Credit Solutions, Inc. v Priority Capital, LLC, 2026 NY Slip Op 00224, First Dept 1-20-26

Practice Point: Here an action for misappropriation of trade secrets was properly brought against an corporate officer individually, despite the fact that the criteria for piercing the corporate veil were not met.

 

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THE ALLEGATIONS IN THE COMPLAINT SUPPORTED “PIERCING THE CORPORATE VEIL;” PLAINTIFF ALLEGED FUNDS OWED TO HER WERE DIVERTED TO RENDER THE CORPORATION JUDGMENT PROOF (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the cause of action alleging alter-ego liability should not have been dismissed. The court noted that New York does not recognize a separate cause of action to pierce the corporate veil, but in the context of a motion to dismiss, the issue is whether the facts fit any cognizable legal theory. Piercing the corporate veil is such a theory:

“Generally. . . piercing the corporate veil requires a showing that: (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff’s injury” … .

Initially, “while fraud certainly satisfies the wrongdoing requirement, other claims of inequity or malfeasance will also suffice” … . “Allegations that corporate funds were purposefully diverted to make [the corporation] judgment proof . . . are sufficient to satisfy the pleading requirement of wrongdoing which is necessary to pierce the corporate veil on an alter-ego theory” … . When “legitimate business activity” is involved, we have sometimes required a plaintiff to allege that the dominator “engaged in th[e] conduct for the purpose of harming plaintiff” … . However, this requirement does not apply when “the defendant against whom alter ego liability [i]s asserted . . . commit[s] fraud and malfeasance” … .

In any event, giving plaintiff the benefit of all favorable inferences as required on a CPLR 3211(a)(7) motion, she alleges that [defendant] caused the … funds owed to her to be diverted … in order to circumvent payment of the funds owed to her, which would render her judgment against the [the corporation] “nothing more than a pyrrhic victory” … . This allegation satisfies the “fraud or wrong” requirement of piercing the corporate veil … . Cohen v Cohen, 2026 NY Slip Op 00192, First Dept 1-15-26

Practice Point: Consult this decision for insight into what type of “fraud or wrong” must be alleged in the complaint to support piercing the corporate veil.

 

 

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DEFENDANT HOME CARE AGENCY WAS HIRED BY DEFENDANT HEALTHCARE PLAN AS AN INDEPENDENT CONTRACTOR, NOT AN EMPLOYEE; THEREFORE THE HEALTHCARE PLAN WAS NOT LIABLE FOR THE ALLEGED ASSAULT, BATTERY AND NEGLIGENT SUPERVISION COMMITED BY AN EMPLOYEE OF THE HOME CARE AGENCY (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined that Lighthouse, the parent company of GuildNet, a long-term healthcare plan, could not be held liable for the assault, battery and negligence allegedly committed by an employee of Ellison Home Care Companion Agency, which provided healthcare aides who attended to plaintiff’s mother. Plaintiff alleged his mother was assaulted and battered by Shaw, who was employed by Ellison. The contract between GuildNet and Ellison described Ellison as an independent contractor. Because Shaw was not GuldNet’s employee, GuildNet was not vicariously liable for Shaw’s actions:

The assault, battery, and negligence claims should have been dismissed as against GuildNet on the ground that Shaw was not its employee at the time of the underlying events. GuildNet and Ellison’s Participating Provider Agreement expressly defined their relationship as one of independent contractors rather than employer-employee … . The record discloses that GuildNet had only incidental control and general supervisory power over Ellison’s work, which is insufficient to establish an employer-employee relationship … . Further, Ellison admitted that Shaw was its employee and acting within the scope of her employment at the time of the underlying events.

The remaining claim for negligent supervision should also have been dismissed. To the extent that it is predicated on GuildNet’s alleged failure to supervise Shaw despite knowledge of her “propensity for the sort of behavior which caused” [plainiff’s mother’s] injuries and death … , Shaw was not GuildNet’s employee, and the record is bereft of any information that could impute to GuildNet knowledge of her propensity either to commit assault or battery or to ignore a client in distress … . To the extent that the claim is instead predicated on GuildNet’s alleged failure to supervise the care that [plaintiff’s mother] received, namely, by failing to assign a competent agency to assign a competent home health care aide to work with [her], plaintiff has not identified how such a failure proximately caused [her] injuries and death, assuming that GuildNet even had a duty to do so in the first place … . Pander v GuildNet, Inc., 2026 NY Slip Op 00201, First Dep-15-26

Practice Point: A party which hires a party as an “independent contractor” and does not exercise supervisory control over the independent contractor’s work will not be vicariously liable for wrongdoing by the independent contractor.

 

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THE RECORD DOES NOT DEMONSTRATE THE WAIVER OF INDICTMENT WAS SIGNED IN OPEN COURT; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL; CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the waiver of indictment was invalid because it was not signed in open court:

Defendant’s waiver of indictment … was invalid because the record does not demonstrate that defendant satisfied the requirement of NY Constitution, art 1, § 6 and CPL 195.20 that the written waiver of indictment must be signed by the defendant in open court in the presence of his or her counsel … . The indictment waiver was dated February 3, 2021, the same date on which the SCI was issued, but a date on which there appears to have been no appearance in this case. Further, the court’s description of the indictment waiver suggested that the court understood it to have been signed before the day of the plea. The record as a whole does not clearly support an inference that the “open court” requirement was satisfied. A less than compelling inference does not fulfill the “unequivocal dictate” that the record demonstrate that the defendant signed the waiver in open court … . “Compliance with this unequivocal dictate is indispensable to a knowing and intelligent waiver and the failure to adhere to this strict procedure is a jurisdictional defect which survives a guilty plea and appeal waiver and need not be preserved” … . People v Perez, 2026 NY Slip Op 00210, First Dept 1-15-26

Practice Point; If the record does not unequivocally demonstrate a waiver of indictment was signed in open court, the guilty plea is invalid. The issue need not be preserved for appeal.

 

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THE DISMISSAL OF TWO FEDERAL LAWSUITS AGAINST DEFENDANT SCHOOL (ALLEGING SEXUAL AND PHYSICAL ABUSE OF PLAINTIFFS-STUDENTS) ON STATUTE-OF-LIMITATIONS GROUNDS DID NOT GIVE RISE TO A “VESTED RIGHT” REQUIRING THE DISMISSAL OF THE STATE ACTION UNDER THE CHILD VICTIMS ACT ALLEGING THE SAME FACTS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, determined that the dismissal of two federal lawsuits as barred by the statute of limitations did not create a “vested right” such that a state Child Victims Act action based on the facts alleged in the federal lawsuits should be dismissed. The lawsuits stemmed from allegations of sexual and physical abuse of plaintiffs, students at defendant school:

The federal doctrine of vested rights has roots in common and even natural law. * * *

The case most often cited by modern cases for articulating the doctrine is McCullough v Virginia (172 US 102 [1898]). There, a taxpayer prevailed in a Virginia state court against the State of Virginia, obtaining a judgment for a tax refund (id.). Before the judgment was executed, the Virginia legislature repealed the legislation that had entitled the taxpayer to a refund (id.). McCullough held that the United States Constitution barred the state legislature from repudiating the state court judgment, explaining that “[it] is not within the power of the legislature to take away rights which have been once vested by a judgment,” and that when “passed into judgment the power of the legislature to disturb the rights created thereby ceases” … .

McCullough, its progeny, and earlier cases establish that a final money judgment gives rise to a vested due process property right, which entitles the judgment creditor to the same constitutional protections afforded other forms of property … . * * *

In describing their purported property right, the … defendants argue that they are not asserting a property right in “any previously-applicable statute of limitations, but rather in the final federal judgments that they received.” Indeed, if the final federal judgments, standing alone, do not vest defendants with a constitutionally protected property right, the argument fails because, as the … defendants concede, “[o]f course a statute of limitations itself does not create property rights” … . M.T. v Yeshiva Univ., 2026 NY Slip Op 00218, First Dept 1-15-26

Practice Point: The dismissal of federal lawsuits as barred by the statute of limitations did not constitute a “vested right” requiring dismissal of the state action under the Child Victims Act based on the same facts.​

 

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BETWEEN DEFENDANT’S GUILTY PLEA AND SENTENCING, THE COURT HELD A HEARING ON WHETHER DEFENDANT WAS ENTITLED TO ALTERNATIVE SENTENCING PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA); AT THE HEARING DEFENDANT TESTIFIED SHE ACTED IN SELF DEFENSE WHEN SHE STABBED THE VICTIM; THAT TESTIMONY TRIGGERED THE NEED FOR FURTHER EXPLORATION BY THE JUDGE; THE MAJORITY APPLIED AN EXCEPTION TO THE PRESERVATION REQUIREMENT TO CONSIDER THE APPEAL AND REVERSE; TWO DISSENTERS ARGUED THE EXCEPTION TO THE PRESEVATION REQUIREMENT DID NOT APPLY (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, over a two-justice dissent, determined defendant raised a question whether defendant stabbed the victim in self-defense in open court between the plea and sentencing which the judge was required to, but failed to explore. The majority applied an exception to the preservation requirement triggered when an element of the crime is negated by the defendant in open court between the plea and the sentencing. Although nothing in the in the plea colloquy negated an element of the crime, during the post-plea hearing on defendant’s application for alternative sentencing pursuant to the Domestic Violence Survivors Justice Act (DVSJA) defendant testified she acted in self defense. The two dissenters argued the exception to the preservation requirement did not apply and the appeal should not have been considered:

Defendant made no statements during the plea colloquy or at sentencing that negated an element of the crimes to which she pleaded guilty, raised the possibility of a particular defense or suggested an involuntary plea so as to implicate the narrow exception to the preservation rule … . That said, the narrow exception to the preservation rule is implicated whenever a defendant “negate[s] an element of the crime to which a plea has been entered or make[s] [a] statement[ ] suggestive of an involuntary plea” in open court between the plea and sentencing, obliging the trial court to “conduct a further inquiry or give the defendant an opportunity to withdraw the plea” … .

From the dissent:

… [D]efendant’s statements during the DVSJA hearing did not signify a lack of understanding about the nature of the charges to which she pleaded guilty or that her plea was involuntary. We are mindful that defendant’s statements during the hearing suggest that she had a potential justification defense, but the hearing was contemplated by the plea agreement itself, the statements were made for the purpose of establishing defendant’s entitlement to a reduced sentence under Penal Law § 60.12 and defendant twice reaffirmed her plea during the hearing. Notably, at the end of the hearing, defense counsel expressly stated that defendant had “knowingly plea[ded guilty to the indictment.” Under these particular circumstances and when considered in context, defendant’s postplea statements “did not raise a legitimate question about the voluntariness of [defendant’s] plea” … so as to impose upon the court a duty of further inquiry to ensure that the plea was knowing, voluntary and intelligent … . People v Brown-Shook, 2026 NY Slip Op 00172, Third Dept 1-16-26

Practice Point: Here the defendant pled guilty and moved for an alternative sentence under the DVSJA. At the DVSJA hearing she testified she stabbed the victim in self defense. There is a narrow exception to the preservation requirement when a defendant negates an element of the crime in open court between pleading guilty and sentencing. Over a two-justice dissent, the majority applied the preservation exception and reversed on the ground the judge did not explore the possibility defendant had acted in self defense.

 

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EXCESSIVE QUESTIONING BY THE TRIAL JUDGE WHICH TOOK ON THE FUNCTION AND APPEARANCE OF AN ADVOCATE DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the trial judge deprived defendant of a fair trial by excessive questioning ot eh defendant which “took on the function and appearance of an advocate.” The error was not preserved but the appeal was considered in the interest of justice:

Supreme Court engaged extensively in its own areas of inquiry, which detailed the nature of the complainant’s injury and clarified whether the injury was likely to have been intentionally caused by a sharp instrument. The court asked numerous leading questions of the People’s witness, a paramedic, as to what the paramedic observed, and guided the prosecution at length in its questioning of the paramedic. The court also assisted the prosecution in laying a foundation for the admission of evidence and repeatedly engaged in lengthy colloquies with various prosecution witnesses in order to effectively instruct these witnesses how to refresh their recollections in order to provide evidence favorable to the prosecution.

Viewing the record as a whole, the Supreme Court improperly took on the function and appearance of an advocate, at times even engaging in commentary on the testimony against the defendant, as well as on questions posed by defense counsel. The court’s conduct left the impression that its opinion favored the credibility of the People’s witnesses and the merits of the People’s case … , thus depriving the defendant of a fair trial … . People v Coleman, 2026 NY Slip Op 00145, Second Dept 1-14-26

Practice Point: Here the trial judge engaged in questioning of witnesses which took on the function and appearance of an advocate, depriving defendant of a fair trial. Although the issue was not preserved, the appeal was considered in the interest of justice.

 

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DISAGREEING WITH THE THIRD DEPARTMENT, THE SECOND DEPARTMENT HELD THAT THE “DISMISSAL WITHOUT PREJUDICE” OF A MOTION FOR A REDUCED SENTENCE PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) FOR FAILURE TO PROVIDE SUFFICIENT EVIDENCE CORROBORATING THAT DEFENDANT WAS A VICTIM OF DOMESTIC VIOLENCE IS APPEALABLE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice LaSalle, disagreeing with the Third Department, determined that the “dismissal without prejudice” of a motion for a reduced sentence pursuant to the Domestic Violence Survivors Justice Act (DVSJA) constitutes a denial of the motion which is appealable:

… [W]e disagree with the Third Department and conclude that under the plain language of CPL 440.47(3)(a), an order “dismissing” a resentencing application at step two pursuant to CPL 440.47(2)(d) is an order “denying resentencing” … , rendering it appealable as of right pursuant to CPL 440.47(3)(a). This is because the effect of an order “dismissing” a resentencing application is that the defendant has been denied resentencing. We conclude that the fact that the statute uses the word “dismiss” in CPL 440.47(2)(d) (when indicating what the court shall do with an application for resentencing that does not contain evidence corroborating the defendant’s claim that he or she was a victim of domestic violence at the time of the offense) and “denying” in CPL 440.47(3)(a) (when indicating what orders an appeal may be taken from) does not mean that the Legislature did not intend for a defendant to be able to appeal from an order determining that a defendant has failed to provide evidence … corroborating the defendant’s claim that he or she was a victim of domestic violence at the time of the offense. People v Nymeen C., 2026 NY Slip Op 00144, Second Dept 1-14-26

Practice Point: There is a split of authority on the question whether the “denial without prejudice” of a defendant’s motion for a reduced sentence pursuant to the Domestic Violence Survivors Justice Act (DVSJA) is appealable. It is not appealable in the Third Department but is appealable in the Second Department.

 

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