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A CAUSE OF ACTION ALLEGING LEGAL MALPRACTICE SHOULD NOT HAVE BEEN DISMISSED; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined a cause of action alleging legal malpractice should not have been dismissed:

… [T]he complaint sufficiently stated a cause of action alleging legal malpractice. The complaint alleged that the defendants failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by filing a second amended complaint which deleted the majority of the factual allegations and legal malpractice causes of action the plaintiff had interposed against the defendant in the underlying action without the plaintiff’s knowledge or consent. The complaint further alleged that the defendants’ negligence in amending that pleading proximately caused the plaintiff to lose his claims of legal malpractice against the defendant in the underlying action, and to incur additional legal fees to appeal the denial of his motion for leave to amend the second amended complaint. Contrary to the defendants’ contention, the plaintiff alleged actual, ascertainable damages that resulted from the defendants’ negligence … . Ofman v Richland, 2025 NY Slip Op 00327, Second Dept 1-22-25

Practice Point: Consult this decision for a concise description of the elements of a cause of action for legal malpractice.

 

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A FOIL REQUEST FOR A ZONING BOARD OF APPEALS (ZBA) MEMO SHOULD NOT HAVE BEEN DENIED BECAUSE PETITIONER HAD UNSUCCESSFULLY SOUGHT TO ANNUL A ZBA RULING; MATTER REMITTED FOR REVIEW OF THE MEMO TO DETERMINE WHETHER IT IS EXEMPT FROM DISCLOSURE AS INTER-AGENCY OR INTRA-AGENCY MATERIAL (SECOND DEPT).

The Second Department, reversing the denial of the petition, determined the FOIL request for a memo prepared by the Chair of the Zoning Board of Appeals (ZBA) should not have been dismissed on the ground the petitioner had unsuccessfully sought to annul a determination by the ZBA. The matter was remitted for a review of the memo by the judge to determine whether it was exempt from disclosure as inter-agency or intra-agency material:

Supreme Court erred in dismissing this proceeding on the basis that it was rendered academic by the dismissal of a separate CPLR article 78 proceeding in which the petitioner was one of the parties seeking to annul a determination by the ZBA. “FOIL does not require that the party requesting records make any showing of need, good faith or legitimate purpose. The underlying premise [is] that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government” … . “[T]he standing of one who seeks access to records under [FOIL] is as a member of the public, and is neither enhanced nor restricted because he [or she] is also a litigant or potential litigant” … .

… [E]xemptions are construed “narrowly, and an agency has the burden of demonstrating that an exemption applies ‘by articulating a particularized and specific justification for denying access'” … . When relying upon an exemption, “it is the agency’s burden to demonstrate that the requested material falls squarely within a FOIL exemption” … . “To meet its burden, the party seeking exemption must present specific, persuasive evidence that the material falls within the exemption. Conclusory assertions that are not supported by any facts are insufficient” … . Here, the exemption at issue provides that each agency shall make its records available for inspection, “except that such agency may deny access to records or portions thereof that . . . are . . . intra-agency materials which are not . . . statistical or factual tabulations or data” … . … Factual data “simply means objective information, in contrast to opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making” … . Matter of Supinsky v Town of Huntington, 2025 NY Slip Op 00324, Second Dept 1-22-25

Practice Point: A FOIL request should not be denied on the ground the person making the request is, was or could be a litigant in a matter related to the request.

Practice Point: Intra-agency and inter-agency material, meaning opinions, ideas or advice exchanged as part of a deliberative process, is exempt from FOIL disclosure.

 

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RATHER THAN DISMISSING THE PETITION FOR FAILURE TO INCLUDE NECESSARY PARTIES, SUPREME COURT SHOULD HAVE DIRECTED THAT THE NECESSARY PARTIES BE SUMMONED; THE COURT’S POWER TO SUMMON NECESSARY PARTIES IS NOT AFFECTED BY THE RUNNING OF THE STATUTE OF LIMITATIONS; ONLY THE SUMMONED NECESSARY PARTIES THEMSELVES HAVE STANDING TO RAISE THE STATUTE OF LIMITATIONS DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined dismissing the complaint was not the appropriate remedy for petitioners’ failure to include necessary parties, the property owners,, in this Article 78 proceeding challenging zoning variances. Supreme Court should have directed the necessary parties be summoned. The courts power to summon necessary parties is not affected by the running of the statute of limitations. Only the necessary parties themselves have standing to raise the statute of limitations defense:

When a necessary party has not been made a party and is “subject to the jurisdiction” of the court, the proper remedy is not dismissal of the complaint or the petition, but rather for the court to direct that the necessary party be summoned ([CPLR]. § 1001[b] …). Contrary to the respondents’ contention, the Supreme Court’s ability to direct joinder of the property owners at this juncture is not affected by the purported running of the statute of limitations … . Moreover, the respondents lack standing to assert a statute of limitations defense on behalf of the property owners, who have not yet appeared in this proceeding … . Thus, the respondents failed to demonstrate that the petitioners’ failure to join the property owners as respondents warranted dismissal of the petition. Matter of Supinsky v Town of Huntington, 2025 NY Slip Op 00323, Second Dept 1-22-25

Practice Point: Here the dismissal of the petition for failure to include necessary parties was not appropriate. The court should have directed that the necessary parties be summoned.

Practice Point: A court’s power to direct that necessary parties be summoned is not affected by the running of the statute of limitations.

Practice Point: Here only the necessary parties themselves have standing to raise the stature of limitations defense.

 

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PLAINTIFF POLICE OFFICER WAS PARTICIPATING IN A TRAINING SESSION WHEN HE WAS BITTEN BY A POLICE DOG; THE TRAINING WAS A GOVERNMENTAL FUNCTION; THEREFORE THE MUNICIPALITY MUST HAVE OWED PLAINTIFF A SPECIAL DUTY TO BE LIABLE, NOT THE CASE HERE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the municipality (City of Middletown) did not owe a special duty to plaintiff police officer, who was bitten by a police dog during training: The dog handler, Officer McDonald (a City of Middletown police officer), and plaintiff were participants in training sessions conducted by the NYS Homeland Security and Emergency Services when the unleased dog bit plaintiff:

As part of the training, the police dogs were off-leash. The plaintiff, who was participating in a different training event in a different building, entered the building where the explosives detection training exercise was being held and was still in progress when he was bitten by Officer McDonald’s police dog.

When a negligence cause of action is asserted against a municipality, and the municipality was exercising a governmental function, a municipality may not be held liable unless it owed a special duty to the injured party … . Such a special duty can arise, as relevant here, where “the municipality took positive control of a known and dangerous safety condition” … . Here, the defendants established, prima facie, that they did not owe a special duty to the plaintiff. There was no evidence that Officer McDonald [the dog handler] took positive control of a known and dangerous safety condition which gave rise to the plaintiff’s injuries … . The defendants established that Officer McDonald was an attendee at a training program conducted by the New York State Homeland Security and Emergency Services at a New York State facility, that he merely participated in the training exercise, and that he took direction from the NYPD canine instructor. Mahar v McDonald, 2025 NY Slip Op 00315, Second Dept 1-22-25

Practice Point: Here the police dog handler did not have control of the unleashed dog when it bit plaintiff. The dog and the handler were participating in an explosive-detection training session conducted by a third party. Because the dog handler had not taken control of a known and dangerous safety condition (the dog) at the time plaintiff was injured, the dog handler did not owe plaintiff a special duty, a prerequisite to municipal liability.

 

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PLAINTIFF WAS CROUCHING DOWN MARKING THE FLOOR WITH DUCT TAPE WHEN A LADDER FELL OVER AND STRUCK HIM; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT IN THIS LABOR LAW 240(1) ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defense motion for judgment for summary judgment in this Labor Law 240(1) action should not have been granted and plaintiff’s cross-motion for summary judgment should have been granted. Plaintiff was crouching down marking off areas of the floor with duct tape when an ladder fell over and struck him, causing him to lose consciousness:

The elevation differential involved here cannot be described as de minimis … . The evidence also established that the ladder was not adequately secured for the purposes of the undertaking … .

… [P]laintiff established prima facie entitlement to summary judgment through his deposition testimony that he was struck by a ladder that was not properly secured. … [I]t was foreseeable for a ladder resting against a wall to topple over and strike a nearby worker. Nor could a worker knocking over the ladder be considered an intervening superseding cause in this case … . Silva v 770 Broadway Owner LLC, 2025 NY Slip Op 00299, First Dept 1-21-25

Practice Point: Here plaintiff was marking the floor with duct tape when a ladder which had been leaning against a wall fell over and struck him. It was foreseeable that an unsecured ladder could fall over. If a worker knocked it over, that would be foreseeable as well and would not be a superseding cause.

 

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THE TRIAL JUDGE COMPLETELY BYPASSED THE BATSON PROCEDURE WHEN DEFENSE COUNSEL OBJECTED TO THE PEOPLE’S PEREMPTORY CHALLENGES TO FOUR JURORS; ALTHOUGH THE JURORS HAD BEEN EXCUSED, THE BATSON OBJECTION WAS TIMELY; ALTHOUGH THE ERROR WAS NOT PRESERVED, THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE; CONVICTION HELD IN ABEYANCE AND MATTER REMITTED; TWO JUSTICE DISSENT (FIRST DEPT).

The First Department, holding the judgment of conviction in abeyance and remitting the matter, in a full-fledged opinion by Justice Pitt-Burke, over a two-justice dissent, determined (1) the appeal raising an unpreserved objection to the trial judge’s handling of a Batson challenge could be considered “in the interest of justice,” and (2) the trial judge erroneously bypassed the Batson procedure for addressing whether racial discrimination was the basis for four of the prosecution’s peremptory challenges. Defense raised the Batson challenge after the four jurors had been excused. The trial judge argued the challenge was untimely and the only remedy was a mistrial. Defense counsel argued, and the prosecution conceded, the challenge was timely, but defense counsel declined to request a mistrial. The First Department noted that remedies other than a mistrial were available—recalling the excused jurors, limiting the prosecution’s peremptory challenges, or granting the defense additional peremptory challenges, for example:

Even if we were to agree that defendant’s claim is unpreserved, we find that the trial court’s errors here were critical, and not merely a case of putting the proverbial cart before the horse … . The trial court’s actions, whether intentional or not, sidestepped the entire Batson protocol.

This Court’s recent precedent has been to exercise its interest of justice jurisdiction to correct unpreserved Batson errors where a trial court has substantially deviated from the Batson protocol. * * *

Crucially, here we are not faced with a circumstance in which the trial court erroneously concluded that defendant did not meet his prima facie burden at step one … . In fact, as noted above, the trial court took notice of the preemptory challenges implemented by the prosecution.

This is also not a circumstance in which the court deviated from the Batson protocol by improperly combining steps two and three … . Rather, we are faced with a circumstance where the trial court failed to provide any inquiry into the question of discrimination by circumventing all three steps of the Batson protocol. People v Luke, 2025 NY Slip Op 00297, First Dept 1-21-25

Practice Point: The failure to adhere to the Batson three-step procedure for addressing discrimination in jury selection can be considered by an appellate court “in the interest of justice” despite the failure to preserve the error.

Practice Point: A Batson challenge raised after the jurors had been excused, but before jury selection is complete, is timely.

Practice Point: Remedies for a Batson challenge first raised after the jurors have been excused include recalling the excused jurors, limiting the prosecution’s peremptory challenges, and granting the defense additional peremptory challenges.

 

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THE IMPOUNDMENT OF DEFENDANT’S VEHICLE WAS NOT DEMONSTRATED TO HAVE BEEN NECESSARY AND THE PROCEDURES FOR AN INVENTORY SEARCH OF THE VEHICLE WERE NOT FOLLOWED; THE SEIZED HANDGUN SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT). ​

The Third Department, granting defendant’s motion to suppress a handgun, over a dissent, determined the impoundment of defendant’s vehicle after a traffic stop was unnecessary and the search of the vehicle was not a valid inventory search:

Maggs’ [the arresting officer’s] ambiguous testimony — essentially asserting that any vehicle parked on the street would be unsafe if unattended — falls short of demonstrating that the subject vehicle was not reasonably secure and safe in this residential area, among the many other vehicles parked curbside … . Further, although departmental policy did not require Maggs to investigate whether defendant’s father, who was not present at the scene, was in fact willing and able to take control of the vehicle, “facts were brought to [Maggs’] attention to show that impounding would be unnecessary” … . Moreover, defendant’s inquiry as to whether the vehicle could be picked up at some later point is tantamount to a request to leave the vehicle where it was, presenting yet another situation in which a vehicle should not be towed per written departmental policy. Given the People’s failure to demonstrate that the vehicle was lawfully impounded at the time of the inventory search, defendant’s motion should have been granted.

The People also failed to demonstrate that the so-called inventory search was conducted in compliance with established procedures … . * * *

There is also considerable indicia that the purported inventory search was a pretext to search for contraband, including the canvassing of defendant’s residence, the absence of any traffic citation, and the fact that the decision to arrest defendant and impound the vehicle came only after defendant refused to provide his consent to search the vehicle … . People v Gray, 2025 NY Slip Op 00249, Third Dept 1-16-25

Practice Point: Here the vehicle could have been safely left parked where it was, or it could have been picked up by someone. To impound the vehicle therefore violated the police department’s regulations. Because the People did not prove the vehicle was legally impounded at the time it was searched the suppression motion should have been granted.

Practice Point: The hallmark of a valid inventory search is an inventory list, which was not created here.

 

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THE DEFENDANT WAS NOT NOTIFIED HE WOULD BE CLASSIFIED AS A SEXUALLY VIOLENT OFFENDER, A VIOLATION OF HIS RIGHT TO DUE PROCESS WHICH DEPRIVED HIM OF THE OPPORTUNITY TO CHALLENGE THE DESIGNATION ON CONSTITUTIONAL GROUNDS; MATTER REMITTED (THIRD DEPT). ​

The Third Department, vacating the sexually violent offender designation, determined the failure to notify defendant that he would be classified as a violent sexual offender deprived defendant of due process resulting in his inability to argue his constitutional objections to the designation on appeal. The matter was remitted:

Here, neither the Board nor the People requested that County Court designate defendant a sexually violent offender, and the designation was never mentioned at the hearing … . Although the court appropriately concluded that the foreign registration clause compelled it to designate defendant a sexually violent offender … , the court erred when it failed to provide defendant with notice and an opportunity to be heard on his designation before issuing a determination (see Correction Law § 168-k [2] …). This error prejudiced defendant, as he could not timely assert, and thereby preserve, the constitutional defenses he presses on appeal … . Specifically, defendant contends that his designation as a sexually violent offender violates his rights to substantive due process and equal protection of the laws and runs afoul of the Privileges and Immunities Clause … . People v Schultz, 2025 NY Slip Op 00251, Third Department 1-16-25

Practice Point: Although the judge was required to designate defendant as a sexually violent offender, the failure to notify him and give him an opportunity to be heard deprived him of his right to challenge the designation on constitutional grounds. The sexually-violent-offender designation was vacated and the matter remitted.

 

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THE PRIOR WRITTEN NOTICE RULE RE: MUNICIPAL LIABILITY FOR DANGEROUS CONDITIONS APPLIES TO MORE THAN JUST SURFACE DEFECTS; HERE THE RULE APPLIED TO AN ARCH-SHAPED BOLLARD OR BARRIER WHICH FELL OVER WHEN A CHILD WAS SWINGING FROM IT; TWO-JUSTICE DISSENT (THIRD DEPT).

The Third Department, affirming the dismissal of the complaint, over a two-justice dissent, determined the “written notice” requirement in the City of Ithaca code applied to an arch-shaped bollard or barrier placed to protect a tree from being damaged by cars using a parking lot. As plaintiff’s child grabbed onto the bollard and swung from it, it came loose from the ground and fell over, injuring the child’s hand. The city demonstrated it did not have written notice of the condition, which, under the code, is a prerequisite for liability. The dissenters argued a bollard was not in any category which triggers the written-notice requirement:

… [T]he operative query is not whether there is a surface defect affecting safe passage but, more broadly, whether there is a defective condition that would not have come to the municipality’s attention unless it was notified of it … . As such, the prior written notice rule has been applied to conditions as varied as a low-hanging tree branch …, a sharp metal beam … and a bent parking meter pole … . Therefore, the prior written notice rule governs.

From the Dissent:

First, in our opinion, the defective bollard that crushed plaintiff’s child’s hand was not in one of the six locations that General Municipal Law § 50-e authorizes municipalities to cover with a prior written notice law. And second, defendants failed to submit any proof that they installed the bollard properly, in accordance with industry standards. Thus, the burden never shifted to plaintiff, and defendants’ summary judgment motion should have been denied regardless of the adequacy of plaintiff’s proof. Finally, even if defendants had shifted the burden, we believe that plaintiff submitted proof presenting a question of fact as to whether the bollard was unreasonably dangerous when installed, precluding a grant of summary judgment. Gurbanova v City of Ithaca, 2025 NY Slip Op 00252, Third Dept 1-16-25

Practice Point: The written-notice rule, which requires that a municipality have written notice of a dangerous condition before it can be held liable for injury caused by the condition, applies to more than just surface defects. Here the rule applied to an arch-shaped bollard or barrier which fell over when a child swung on it.

 

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PLAINTIFF WAS WORKING ON POWER LINES WHILE SUSPENDED FROM A HELICOPTER WHEN THE HELICOPTER LOST CONTROL AND CRASHED; PLAINTIFF’S LABOR LAW 200, 240 AND 241(6) CAUSES OF ACTION WERE NOT PREEMPTED BY THE FEDERAL AVIATION ACT (FAA) (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Egan, over a two-justice dissent, determined the Federal Aviation Act (FAA) did not preempt New York’s Labor Law protections for workers. Plaintiff was working on power lines and towers while suspended from a helicopter when the helicopter collided with a structure, lost control and crashed. Plaintiff sued the general contractor for failure to provide adequate safety devices. This lawsuit did not include the helicopter company or seek damages for negligent operation of the helicopter (apparently addressed by other lawsuits against different defendants):

Plaintiff’s complaint … asserted claims against defendant as the general contractor on the project alleging that defendant was negligent and violated Labor Law §§ 200, 240 and 241 (6), as well as the Industrial Code (see 12 NYCRR 23-1.7). * * *

… [T]he FAA “contained a saving provision preserving pre-existing statutory and common-law remedies” …, and it continues to authorize “any other remedies provided by law” in addition to the ones created by the FAA … . In other words, the FAA contemplates that state law remedies survive its enactment and may be pursued within its purview, including “state law personal injury suits” … . The question is accordingly not whether the FAA preempts all state law claims that somehow intersect with air safety — its own terms make clear that it does not — but whether the claims arise in the area of air safety and “interfere with federal laws and regulations sufficiently to fall within the scope of the preempted field” … . …

Plaintiff’s claims … arise out of the state’s police power to regulate occupational health and safety issues, not aviation, and defendant points to “nothing in [the FAA or implementing regulations] indicating that Congress meant to affect state regulation of occupational health and safety, or the types of damages that may be recovered” for a violation of those workplace safety standard … . Scaletta v Michels Power, Inc., 2025 NY Slip Op 00258, Third Dept 1-16-25

Practice Point: Consult this decision for a discussion of field and conflict preemption issues in the context of the Federal Aviation Act and New York’s Labor Law protections for workers. Plaintiff was suspended from a helicopter working on power lines when the helicopter lost control and crashed.

 

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