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HERE PLAINTIFF’S SIGNING A CONSENT FORM DID NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT IN THIS “LACK OF INFORMED CONSENT” MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this “lack of informed consent” medical malpractice case should not have been granted. The court noted that plaintiff’s signing a consent form was not enough to establish defendant’s entitlement to judgment as a matter of law:

“To establish a cause of action to recover damages based upon lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury'” … . Thus, “a defendant can establish entitlement to summary judgment by demonstrating that the plaintiff signed a detailed consent form after being apprised of alternatives and foreseeable risks, by demonstrating that a reasonably prudent person in the plaintiff’s position would not have declined to undergo the surgery, or by demonstrating that the actual procedure performed for which there was no informed consent was not a proximate cause of the injury” … . “If the defendant makes such a showing, the burden then shifts to the plaintiff to raise a triable issue of fact as to those elements on which the defendant met its prima facie burden of proof” … .

Here, the defendant failed to establish his prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging lack of informed consent … . “The mere fact that the plaintiff signed a consent form does not establish the defendant[‘s] prima facie entitlement to judgment as a matter of law” … , and the defendant’s submissions, including a transcript of the plaintiff’s deposition testimony, did not establish that the plaintiff was given sufficient information on the risks and alternatives regarding the materials used and the procedures performed … . Furthermore, the defendant failed to establish, prima facie, that the procedure performed for which there was no informed consent was not a proximate cause of the plaintiff’s injury. Rymer v Bernstein, 2026 NY Slip Op 00273, Second Dept 1-21-26

Practice Point: Here n this  “lack of informed consent” medical malpractice action, plaintiff’s signing a consent form did not entitle defendant to summary judgment as a matter of law.

 

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HERE THE NATURE OF INFANT PLAINTIFF’S INJURIES WAS PROBATIVE OF HOW THE ACCIDENT OCCURRED; PLAINTIFF ALLEGED DEFENDANTS’ VAN RAN OVER INFANT PLAINTIFF’S FOOT; DEFENDANTS ALLEGED INFANT PLAINTIFF WAS INJURED WHEN SHE FELL OFF HER BICYCLE; PLAINTIFFS’ MOTION FOR A UNIFIED TRIAL ON LIABILITY AND DAMAGES SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the denial of plaintiffs’ motion for a unified trial on liability and damages was an abuse of discretion. Plaintiffs alleged defendants’ van ran over infant plaintiff’s foot. Defendants alleged infant plaintiff was injured when she fell off her bicycle. Because the nature of the injury was relevant to proof of defendants’ liability, an unified trial was necessary:

“Unified trials should only be held ‘where the nature of the injuries has an important bearing on the issue of liability'” … . “‘The party opposing bifurcation has the burden of showing that the nature of the injuries necessarily assists the factfinder in making a determination with respect to the issue of liability'” … . “Although bifurcation is encouraged in appropriate settings, bifurcation is not an absolute given and it is the responsibility of the trial judge to exercise discretion in determining whether bifurcation is appropriate in light of all relevant facts and circumstances presented by the individual cases” … . Thus, “‘[t]he decision whether to conduct a bifurcated trial rests within the discretion of the trial court, and should not be disturbed absent an improvident exercise of discretion'” … .

Here, the plaintiffs and [defendants] offered conflicting accounts of how the infant plaintiff allegedly was injured, and the plaintiffs demonstrated that evidence regarding the nature of the infant plaintiff’s alleged injuries was probative in determining how the accident occurred … . I.R. v Santos, 2026 NY Slip Op 00270, Second Dept 1-21-26

Practice Point: It is a matter of judicial discretion whether to hold a bifurcated or a unified personal-injury trial on liability and damages. But where the nature of the injury is relevant to proving liability, it is an abuse of discretion to deny a motion for a unified trial.

 

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A TREE IS NOT A “BUILDING OR STRUCTURE” WITHIN THE MEANING OF LABOR LAW 240 (1); THEREFORE PLAINTIFF’S INJURY, INCURRED WHILE CUTTING A LIMB OFF A TREE, WAS NOT COVERED BY THE LABOR LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s injury while he was cutting a tree was not covered by Labor Law 240 (1). Plaintiff, a county parks department employee, argued that the tree cutting and removal was part of a larger construction project, i.e., setting up a holiday light show:

“Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites” … . The statute “applies where an employee is engaged ‘in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure'” … . “[T]ree cutting and removal, in and of themselves, are not activities subject to Labor Law § 240(1). Those activities are generally excluded from statutory protection because a tree is not a building or structure, as contemplated by the statute but, rather, ‘a product of nature'” … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 240(1) by submitting evidence demonstrating that, at the time of his accident, the plaintiff was engaged in tree cutting and removal, which “constituted routine maintenance outside of a construction or renovation context” … . In support of its motion, the defendant submitted, inter alia, transcripts of the deposition testimony of James Leonard, the director of general maintenance for the Department, and Russell Argila, a senior maintenance mechanic in the general maintenance department. Leonard testified that, on the date of the accident, the plaintiff and his coworkers were engaged in “thinning out, pruning trees, dead branches along . . . [a] hillside,” and that the tree the plaintiff was cutting at the time of his accident was part of that work. Argila testified that the tree crew, of which the plaintiff was a member, was “coming up there to clean it up, to do their normal tree work,” and denied that the purpose of the tree work was to prepare for the installation of the [light show]. Peterkin v Westchester Parks Found., Inc., 2026 NY Slip Op 00268, Second Dept 1-21-26

Practice Point: Here tree cutting and removal was deemed “routine maintenance” which was not covered by Labor Law 240 (1) because a tree is not a “building of structure.”

 

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THE TOWN OF BABYLON INDUSTRIAL DEVELOPMENT AGENCY PROPERLY DETERMINED THAT A SENIOR HOUSING PROJECT WAS ENTITLED TO FINANCIAL ASSISTANCE UNDER THE NEW YORK STATE INDUSTRIAL DEVELOPMENT AGENCY ACT (SECOND DEPT).

The Second Department, in a matter of first impression, in a full-fledged opinion by Justice Duffy, determined a senior housing project was entitled to financial assistance under the authority of the New York State Industrial Development Agency Act, affirming the ruling of the Town of Babylon Industrial Development Agency:

The issue on appeal, an issue of first impression for this Court, is whether the respondent Town of Babylon Industrial Development Agency (hereinafter the Babylon IDA) operated within its statutory authority pursuant to the New York State Industrial Development Agency Act (hereinafter the Act) (article 18-A of the General Municipal Law) when it adopted a resolution … determining that a planned affordable senior housing project is included in the type of projects eligible for certain financial assistance and benefits under the Act … . The petitioners appeal from a judgment of the Supreme Court … denying a petition pursuant to CPLR article 78 to review the resolution and dismissing the proceeding. … [W]e affirm on the ground that the court properly determined that the Babylon IDA operated within its statutory authority in granting financial assistance pursuant to the Act. … [T]he determination by the Babylon IDA that a plan to construct affordable senior housing constitutes a “project” as defined in General Municipal Law § 854(4) entitled to financial assistance and benefits under the Act because, among other things, the proposed construction will promote employment opportunities and combat economic deterioration, was rationally based and neither arbitrary and capricious or an abuse of discretion, nor affected by an error of law. The interpretation by the Babylon IDA of the relevant language of the Act comports with the plain meaning of the text contained in the Act as well as the legislative intent of the Act and related authority. Matter of Wyandanch Union Free Sch. Dist. v Town of Babylon Indus. Dev. Agency, 2026 NY Slip Op 00252, Second Dept 1-21-26

 

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IN THIS PARKING LOT SLIP AND FALL CASE, THE DEFENDANTS FAILED TO PROVE WHEN THE AREA WAS LAST INSPECTED OR CLEANED OF ICE AND SNOW; THEREFORE DEFENDANTS DID NOT PROVE A LACK OF CONSTRUCTIVE NOTICE OF THE ICY CONDTION AND SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall action and denying defendants’ summary judgment motion, determined defendants did not demonstrate they did not have constructive notice of the icy condition. To demonstrate a lack of constructive notice, a defendant must prove the area of the slip and fall was recently inspected or cleaned. Proof of general snow and ice removal practices is not enough:

“In moving for summary judgment in an action predicated upon the presence of snow or ice, the defendants [have] the burden of establishing, prima facie, that [they] neither created the snow or ice condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of that condition” … . “Accordingly, a property owner seeking summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” … .

Here, the defendants failed to establish, prima facie, that they lacked constructive notice of the alleged icy condition. The defendants’ maintenance employee provided only general information about his snow and ice removal practices, and he failed to specify when he last salted, removed ice from, or inspected the area where the plaintiff fell relative to the time of the accident … . Jackson v A M E Zion-Trinity Hous. Dev. Fund Co., Inc., 2026 NY Slip Op 00243, Second Dept 1-21-26

Practice Point: There used to be reversals of slip and fall cases on this ground every week for ten years or so. Now they are rare.

 

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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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