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THERE WAS NO EVIDENCE DR. VELASQUEZ WAS NEGLIGENT; HIS SUMMARY JUDGMENT MOTION IN THE MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED; THE OPINION IS FACT-SPECIFIC AND DETAILED (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Mendez, determined this medical malpractice action against one of the defendants, Dr. Velasquez, should have been dismissed. The opinion is fact-specific and goes through the evidence in granular detail. Roth v Velasquez, 2026 NY Slip Op 04915, First Dept 8-6-26

 

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THIS MATTER WAS SENT BACK FOR CONSIDERATION OF DEFENDANT’S YOUTHFUL OFFENDER STATUS; THE RULING ON REMAND DEMONSTRATED THE JUDGE WAS NOT AT ALL FAMILIAR WITH DEFENDANT’S CRIMINAL HISTORY AND WAS IN FACT MISTAKEN ABOUT IT; MATTER REMANDED AGAIN (FIRST DEPT).

he First Department, reversing Supreme Court’s ruling on remand to consider defendant’s youthful offender (YO) status, determined the judge was confused about defendant’s criminal history and in fact was mistaken about it  The case was remanded again:

In making a YO treatment determination, sentencing courts may consider “the gravity of the crime and manner in which it was committed, mitigating circumstances, defendant’s prior criminal record, prior acts of violence, recommendations in the presentence reports, defendant’s reputation, the level of cooperation with authorities, defendant’s attitude toward society and respect for the law, and the prospects for rehabilitation and hope for a future constructive life” … . While courts are not required to place their reasons for denying YO treatment on the record … , at minimum, YO consideration requires the court to have familiarity with the relevant facts and circumstances of the case before it (see CPL 720.20[1][a]).

Here, the sentencing court tracked the statutory language in denying defendant YO treatment. However, it is unclear whether the court was cognizant of the relevant facts and circumstances of defendant’s case to appropriately consider YO treatment, much less the Cruickshank factors (105 AD2d at 334).

At the very least, this record calls into question whether defendant was appropriately considered for YO treatment. The sentencing court’s confusion exposes that it was so unaware of the facts of the underlying offense that we cannot be sure it considered the mitigating factors specific to this defendant that might warrant YO treatment, i.e. that the instant offense is defendant’s first conviction, signaling that he is not a hardened criminal; defendant’s expressed remorse, despite acting in self-defense; the overt steps he has taken to lead a law-abiding life; or the lack of serious injuries to the victim. People v Marcus T., 2026 NY Slip Op 04913, First Dept 8-6-26

Practice Point: Courts need not place the reasons for denial of YO status on the record. But the court must be aware of the relevant facts and circumstance of the case. Here the judge demonstrated he did not know the defendant’s criminal history, requiring reversal.

 

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HERE DEFENDANT’S ANSWER WAS STRICKEN FOR DISCOVERY VIOLATIONS; AT THE INQUEST THE JUDGE SHOULD HAVE CONSIDERED ONLY DAMAGES; THE JUDGE ERRED BY CONSIDERING AN ISSUE WHICH WAS “ADMITTED” BY THE DEFENDANT BECAUSE THE ANSWER WAS STRICKEN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court should not have considered any substantive issues in this inquest to determine damages after the answer was stricken for failure to comply with discovery orders. Because the answer was stricken, defendant admitted all the traversable allegations in the complaint, including the issue the judge erroneously considered:

“‘A defendant whose answer is stricken as a result of a default admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages'” … . “The sole issue to be determined at the inquest is the extent of the damages sustained by the plaintiff, and the court may not consider the question of whether the defendant caused the damages sustained by the plaintiff” … . At an inquest, the plaintiff bears the burden of setting forth a prima facie case as to damages … .

Here, the Supreme Court erred in considering the question of whether the plaintiff signed a satisfaction of mortgage under duress. The defendant’s answer was stricken and as a result, the defendant admitted all traversable allegations in the amended complaint, including the allegation that the satisfaction of mortgage was signed under an implied threat of physical harm. The sole issue to be determined at the inquest was the extent of damages sustained by the plaintiff (see CPLR 3215[a] …). Sabella v Keora Realty, LLC, 2026 NY Slip Op 04884, Second Dept 8-5-26

Practice Point: When an answer is stricken every traversable allegation in the complaint is admitted by the defendant and the only remaining issue is damages.​

 

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A SORA COURT JUDGE HAS THE INHERENT POWER TO, SUA SPONTE, REOPEN A SORA HEARING TO CORRECT AN ERROR (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Dowling, joining the First and Fourth Departments, determined a judge has the authority to, sua sponte, reopen a SORA hearing to correct a mistake:

​Given the Supreme Court’s error, and considering the inherent power of a court to reconsider its own intermediate determinations, together with the overriding purposes and objectives of SORA, we find no wrong in the Supreme Court’s sua sponte correction of its initial failure to assess points under risk factors 3 and 5. There is no benefit to a defendant, the People, or the public in prohibiting a SORA court tasked with determining an offender’s presumptive risk level from, sua sponte, correcting its own erroneous determination … . People v Allen, 2026 NY Slip Op 04880, Second Dept 8-5-26

 

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ONCE THE PARTIES ENTERED A STIPULATION OF DISCONTINUANCE, SUPREME COURT WAS DIVESTED OF JURISDICTION; THEREFORE SUPREME COURT DID NOT HAVE JURISDICTION TO CONSIDER THE SUBSEQUENT MOTION TO VACATE THE STIPULATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court had been divested of jurisdiction over the case when the parties entered a stipulation of discontinuance. Therefore Supreme Court did not have jurisdiction to consider the motion to vacate the stipulation of discontinuance:

“‘A motion must be addressed to a pending action'” … . A court lacks jurisdiction to entertain a motion after the action has been unequivocally terminated by the execution of an express, unconditional stipulation of discontinuance … “or actual entry of judgment in accordance with the terms of the settlement” … .

Here, the Supreme Court lacked jurisdiction to entertain the plaintiff’s motion, among other things, to vacate the stipulation of discontinuance and to restore the action to the court’s active calendar. The action was unconditionally discontinued by the stipulation of discontinuance executed by the plaintiff and the defendant and filed with the court, in which the plaintiff withdrew the complaint and discontinued all claims interposed in the action, and the stipulation was silent as to the court’s retention of jurisdiction for any purpose … . Accordingly, under the circumstances, the plaintiff’s requested relief was not available by way of a motion and could only be obtained by commencing a plenary action … . HSBC Bank USA, N.A. v Rini, 2026 NY Slip Op 04845, Second Dept 8-5-26

Practice Point: Here the parties entered a stipulation of discontinuance, thereby divesting the Supreme Court of jurisdiction over the case. Supreme Court therefore could not consider the subsequent motion to vacate the stipulation.

 

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DEFENDANT’S MOTION TO VACATE PURSUANT TO CPLR 5015(A) FOR LACK OF PERSONAL JURISDICTION SHOULD HAVE BEEN DENIED; DEFENDANT WAIVED THE LACK-OF-JURISDICTION DEFENSE BY SUBMITTING A LETTER TO SUPREME COURT ADDRESSING THE MERITS (SECOND DEPT).

The Second Department, reversing the grant of defendant’s motion to vacate pursuant to CPLR 5015(a) for lack of personal jurisdiction, determined defendant waived the lack-of-jurisdiction defense by submitting a letter to Supreme Court addressing the merits of the action and stating he would represent himself:

“A defendant may waive the issue of . . . personal jurisdiction by appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss” … . “A defendant may appear informally by actively litigating the action before the court” … . “When a party becomes ‘an actor in a suit’ is often a question of degree and of evaluation of the particular facts … . By participating in a lawsuit on the merits, a party “indicates an intention to submit to the court’s jurisdiction over the action, and by appearing informally in this manner, the defendant confers in personam jurisdiction on the court” … .

Here, the defendant waived the defense of lack of personal jurisdiction by submitting a letter to the Supreme Court addressing the merits of the action and stating that he would represent himself in the action, all without objecting to the court’s jurisdiction … . Moreover, more than four years after the commencement of this action, the defendant successfully moved to restore the action to the active calendar and sought further affirmative relief without moving to dismiss the complaint for lack of personal jurisdiction … . Foote v Foote, 2026 NY Slip Op 04842, Second Dept 8-5-26

Practice Point: There is no time limit for a motion to vacate pursuant to CPLR 5015(a) for lack of personal jurisdiction. Here, however, defendant waived the defense by participating in the action.

 

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IN THIS CEILING-COLLAPSE CASE, THE NEGLIGENCE PER SE CAUSE OF ACTION BASED ON THE MULTIPLE DWELLING LAW AND THE RES IPSA LOQUITUR CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the cause of action alleging negligence per se and the res ipsa loquitur cause of action in this ceiling-collapse case should have been dismissed. The negligence per se cause of action alleged a violation of Multiple Dwelling Las section 78(1) which does not impose a specific duty on the landlord. The res ipsa loquitur cause of action failed, in part, because the landlord did not have exclusive control of the plaintiff’s bathroom and the leaking bathtub in the apartment above:

A cause of action alleging negligence per se predicated on a violation of Multiple Dwelling Law § 78(1) cannot lie, as the statute imposes only a general duty to maintain a multiple dwelling and does not impose a specific duty upon a landlord … .

“The doctrine of res ipsa loquitur is a rule of evidence that permits an inference of negligence to be drawn solely from the happening of an accident where the plaintiff can show that: (1) the event is of the kind that ordinarily does not occur in the absence of someone’s negligence; (2) the instrumentality that caused the injury is within the defendant’s exclusive control; and (3) the injury is not the result of any voluntary action by the plaintiff” … . Here, the plaintiff failed to establish that her bathroom ceiling and a bathtub in an upstairs apartment were within the defendants’ exclusive control … . The plaintiff also failed to eliminate triable issues of fact as to her comparative fault, as she entered the bathroom to scrub the bathtub despite being concerned about the imminent collapse of the ceiling before it fell … . Williams v SI 1688 Realty, LLC, 2026 NY Slip Op 04896, Second Dept 8-5-26

Practice Point: Multiple Dwelling Law 78(1) imposes a general duty to maintain a multiple dwelling but does not impose a specific duty upon a landlord. Therefore it could not be the basis of a negligence per se cause of action against the landlord in this ceiling-collapse case.

Practice Point: The res ipsa loquitur cause of action did not lie in this ceiling collapse case because the landlord did not have exclusive control over the bathroom where the ceiling fell or the leaking bathtub in the apartment above.

 

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THERE WAS A QUESTION OF FACT WHETHER THE CONSTRUCTION MANAGER WAS AN AGENT FOR THE GENERAL CONTRACTOR AND THEREFORE COULD BE LIABLE FOR A DANGEROUS CONDITION AT THE WORK SITE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the defendants” (Petrocelli’s) motion for summary judgment in this case stemming from an injury at a construction site. Petrocelli was the construction manager. There was a question of fact whether Petrocelli could be deemed an agent of the general contractor such that it could be liable for a dangerous condition at the site:

While a construction manager is generally not considered a contractor responsible for the safety of the workers at a construction site pursuant to Labor Law § 200, “it may nonetheless become responsible if it has been delegated the authority and duties of a general contractor, or if it functions as an agent of the owner of the premises” … . “A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured” … . A role of general supervision “is insufficient to impose liability under the Labor Law” … .

Here, the Petrocelli defendants failed to establish, prima facie, that they did not exercise a significant degree of control and supervision of the construction site such that it was not delegated the authority and duties of a general contractor … , and failed to establish that they lacked constructive notice of the allegedly dangerous condition because they did not submit any evidence to demonstrate that the “dangerous condition did not exist for a sufficient length of time to afford [them] a reasonable opportunity to discover and remedy it” … . Vasquez v 1719 27 ST, LLC, 2026 NY Slip Op 04894, Second Dept 8-5-26

Practice Point: If a construction manager acts as an agent for the general contractor and therefore exercises supervisory control over a work site, the construction manager may be liable for a dangerous condition at the work site.​

 

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THE THIRD DEPARTMENT CONFIRMED THE PUBLIC EMPLOYMENT RELATIONS BOARD’S (PERB’S) RULING THAT THE VILLAGE IMPROPERLY COERCED A VILLAGE EMPLOYEE TO RESIGN FROM THE UNION AND ACCEPT A LOWER SALARY (THIRD DEPT). ​

The Third Department, confirming the rulings of the Public Employment Relations Board (PERB), in a full-fledged opinion by Justice Fisher, determined the village improperly coerced a village employee to resign from the union and accept a lower salary. The opinion is too detailed and complex to fairly summarize here. The opinion is will-worth reading to gain an understanding of the issues which arise in an employment dispute between a union and a municipality, the application of the Taylor Law, and the jurisdiction and role of the PERB.  Matter of Village of Monticello v AFSCME Local 750-9, Council 66, AFL-CIO, 2026 NY Slip Op 04805, Third Dept 7-30-26

 

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THE SOLE PROXIMATE CAUSE OF DEFENDANT DRIVER’S STRIKING A 12-YEAR-OLD PEDESTRIAN WAS THE PEDESTRIAN’S SUDDENLY RUNNING ONTO THE HIGHWAY (FIRST DEPT).

The First Department, reversing Supreme Court, determined this traffic-accident action stemming from defendant’s striking a 12-year-old pedestrian (J.W.) should have been dismissed. J.W. suddenly ran into defendant driver’s (Li’s) highway lane:

Li testified that he was driving south in the right lane of the Hutchinson River Parkway in the Bronx at about 45 miles per hour when he first saw J.W. standing 100 feet in front of him in a grassy area on the side of the highway to his right. Li testified that when the vehicle approached, J.W. made a “running gesture” and began to run towards the vehicle when it was approximately two car lengths away. Li did not brake or honk his horn, but did take his foot off the gas pedal and was in the process of moving into the left lane to move away from J.W. when J.W. entered the highway, at which point the front right side of the van struck him. Police conducted sobriety tests at the scene and allowed Li to drive the van from the scene. He did not receive a ticket, violation, or citation as a result of the collision. It is undisputed that pedestrians are prohibited from occupying the location where J.W. was traversing (Vehicle and Traffic Law § 1229-a).

Defendants established prima facie that J.W.’s act of running into the highway unlawfully was the sole proximate cause of the collision … . Li’s testimony shows that he was confronted with a sudden and unforeseen situation in which he was forced to make a split second decision and could not “weigh alternative courses of action” such that “he cannot reasonably be held to the same conduct as one who has had full opportunity to reflect” … . “While it is often a jury question whether a person’s reaction to an emergency was reasonable, summary resolution is possible when the individual presents sufficient evidence to support the reasonableness of his or her actions and there is no opposing evidentiary showing sufficient to raise a legitimate question of fact on the issue” … . Danielle W. v Li, 2026 NY Slip Op 04821, First Dept 7-30-26

 

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