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ENGAGING IN COUNSELING SHOULD NOT BE A CONDITION OF VISITATION; THE COURT SHOULD NOT DELEGATE ITS AUTHORITY TO DETERMINE IF AND WHEN VISITATION SHOULD OCCUR TO A COUNSELOR (FOURTH DEPT). ​

The Fourth Department, modifying Family Court, determined father should not have been directed to engage in counseling as a condition of visitation Family Court shouild not have delegated its authority to the counselor to determine when visitation should resume:

It is well settled that ” ‘[a]lthough a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation’ ” … . In addition, a court may not give counselors “the authority to determine if and when visitation would occur” … . Matter of Johnson v Pritchard, 2025 NY Slip Op 05398, Fourth Dept 10-3-25

Practice Point: Engaging in counseling should not be a condition of visitation.

Practice Point: Family Court should not delegate its authority to decide if and when visitation should occur to a counselor.

 

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WITH RESPECT TO THE MANNER IN WHICH WORK IS PERFORMED, A GENERAL CONTRACTOR’S LIABILITY UNDER LABOR LAW 200 AND COMMON-LAW NEGLIGENCE STEMS FROM THE EXERCISE OF SUPERVISORY AUTHORITY; INFORMING THE WORKER OF WHAT WORK SHOULD BE DONE, MONITORING THE TIME AND QUALITY OF THE WORK, ENSURING COMPLIANCE WITH SAFETY REGULATIONS, AND HAVING THE AUTHORITY TO STOP WORK FOR SAFETY REASONS, DO NOT AMOUNT TO THE EXERCISE OF “SUPERVISORY AUTHORITY” (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that defendant general contractor’s motion for summary judgment on the Labor Law 200 and common-law negligence causes of action should have been granted because defendant did not exercise supervisory authority over plaintiff’s work. The Fourth Department took pains to describe what does not constitute the exercise of supervisory authority:

… [T]he court erred in denying defendant’s motion with respect to the portions of plaintiff’s Labor Law § 200 and common-law negligence causes of action alleging negligence in the manner in which work was performed. It is well settled that ” ‘[w]here the alleged defect or dangerous condition arises from the contractor’s methods and the [defendant] exercises no supervisory control over the operation, no liability attaches to the [defendant] under the common law or under Labor Law § 200’ ” … .

Here, defendant established as a matter of law that it ” ‘did not actually direct or control’ ” the work [plaintiff was hired to do.] Contrary to plaintiff’s assertion, ” ‘[t]here is no direction or control if the [general contractor merely] informs the worker what work should be performed . . . [;] there is direction and control [only where the general contractor] specifies how that work should be performed’ ” … . “Similarly, ‘a general duty to ensure compliance with safety regulations or the authority to stop work for safety reasons’ ” … , or even the ” ‘monitoring and oversight of the timing and quality of the work’ ” … are insufficient to raise a triable issue of fact whether defendant exercised direction and control over the manner of plaintiff’s work. Szlapak v The L.C. Whitford, Co., Inc., 2025 NY Slip Op 05385, Fourth Dept 10-3-25

Practice Point: Informing a worker of what work is to be done, monitoring the time and quality of the work, ensuring compliance with safety regulations, having the authority to stop work for safety reasons, do not constitute the “the exercise of supervisory authority” such that a general contractor can be liable under Labor Law 200 and common-law negligence for the manner in which the work was done.

 

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PETITIONER’S SISTER ACTED AS AGENT FOR THEIR DECEASED MOTHER; PETITIONER’S STANDING TO SEEK AN ACCOUNTING PURSUANT TO THE GENERAL OBLIGATIONS LAW WAS NOT AFFECTED BY THE PRINCIPAL’S DEATH (FOURTH DEPT).

The Fourth Department, reversing Surrogate’s Court, determined that petitioner had standing to seek an order pursuant to General Obligations Law 5-1510 directing the respondent, petitioner’s sister, to provide a copy of all bank statements, receipts, disbursements and transactions entered into by the respondent while acting as agent for the parties’ deceased mother. Contrary to the Surrogate’s ruling, the death of the parties’ mother did not deprive petitioner of standing to seek an accounting:

… [T]he death of decedent did not divest petitioner of standing pursuant to General Obligations Law § 5-1510 (3) to commence this special proceeding. Section 5-1510 (3) identifies, both directly and by reference to section 5-1505 (2) (a) (3), the parties that have standing to seek judicial intervention for the purpose of, among other things, compelling an accounting of all receipts, disbursements and transactions entered into by an agent on behalf of the principal … . Specifically, it provides that “[a] special proceeding may be commenced pursuant to [section 5-1510 (2)] by any person identified in [section 5-1505 (2) (a) (3)]”—which includes a personal representative of the estate of a deceased principal—as well as “the agent, the spouse, child or parent of the principal, the principal’s successor in interest, or any third party who may be required to accept a power of attorney” … . The legislature’s use of “any” and the disjunctive “or” in that statutory language evinces its intent to provide a list of equal but alternative petitioners … . Lange v Dixson, 2025 NY Slip Op 05352, Fourth Dept 10-3-25

Practice Point: Here petitioner’s sister acted as agent for their deceased mother. The death of the principal (the parties’ mother) did not affect petitioner’s standing to seek an accounting pursuant to the General Obligations Law.

 

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BASED UPON AN INTERPRETATION OF THE CLASS-ACTION SETTLEMENT AGREEMENT WHICH DID NOT SPECIFICALLY ADDRESS THE ISSUE, SUPREME COURT PROPERLY RULED THAT UNCLAIMED SETTLEMENT FUNDS CAN BE REDISTRIBUTED TO THE OTHER CLASS MEMBERS, REJECTING DEFENDANTS’ ARGUMENT THAT ANY UNCLAIMED FUNDS SHOULD BE RETURNED TO THEM (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Fisher, determined Supreme Court properly ruled that unclaimed checks payable to class members as part of a class action settlement can be redistributed to the other class members. The ruling was based upon an interpretation of the settlement agreement which did not specifically address the “unclaimed checks” issue. Defendants argued the unclaimed funds should be returned to them. The opinion is too fact-specific and detailed to fairly summarize here. O’Brien v Sagbolt LLC, 2025 NY Slip Op 05280, Third Dept 10-2-25

 

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THE CONFLICTING EXPERT REPORTS AND OTHER EVIDENCE RAISED A QUESTION OF FACT WHETHER THE TRAFFIC ACCIDENT CAUSED SERIOUS INJURY DESPITE PLAINTIFF’S DECEDENT’S PREEXISTING CONDITIONS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Michael, determined Supreme Court properly denied summary judgment on the question whether plaintiff’s decedent, Kenneth Moore, suffered “serious injury” within the meaning of Insurance Law 5102(d) in a traffic accident. The conflicting expert evidence raised questions of fact about whether the accident exacerbated preexisting conditions, including arthritis

… [A] preexisting condition does not foreclose a finding that the plaintiff’s injuries were causally related to the subject accident … . Where a defendant meets its prima facie burden in establishing that the preexisting condition is the cause of the plaintiff’s injuries, the burden shifts to the plaintiff to present evidence addressing causation … .

To meet his burden, the plaintiff must address the evidence of preexisting conditions “and explain why [his] current reported symptoms [are] not related to the preexisting conditions” or how the accident aggravated his underlying degenerative conditions … . * * *

… [P]laintiff’s evidence, including conflicting expert reports; testimony as to Moore’s increased pain and diminished physical capabilities; and medical records showing a new course of treatment, new diagnoses, and aggravated injuries, raised issues of fact as to whether Moore’s worsened physical condition was causally related to the accident … . Moore v Maley, 2025 NY Slip Op 05304, First Dept 10-2-25

Practice Point: Consult this opinion for an an explanation of how to deal with a plaintiff’s preexisting conditions when assessing whether plaintiff has suffered “serious injury” in a traffic accident within the meaning of the Insurance Law.

 

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PLAINTIFF, WHO HAD PURCHASED 75% OF REAL PROPERTY FROM THE HEIRS OF THE ORIGINAL OWNER, SOUGHT PARTITION AND SALE; DEFENDANT, WHOSE MOTHER HAD PURCHASED THE PROPERTY, OWNED THE REMAINING 25%; UNDER THE UNIFORM PARTITION OF HEIRS PROPERTY ACT (UPHPA), PLAINTIFF WAS REQUIRED TO NEGOTIATE A SETTLEMENT IN GOOD FAITH, BUT DID NOT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wan, determined that plaintiff, who had purchased 75% of a piece of real property from the heirs of the original owner, did not negotiate in good faith in seeking a judgment directing the partition and sale of the property. The Uniform Partition of Heirs Property Act (UPHPA) (RPAPL 993) applies to this situation, where defendant, an heir of the original owner, holds the remaining 25% of the property. The UPHPA required that plaintiff negotiate a sale price for its share of the property and/or a purchase price for defendant’s share of the property in good faith. Both Supreme Court and the Second Department determined plaintiff did not negotiate in good faith and therefore was not entitled to the partition and sale:

Pursuant to RPAPL 993, property that qualifies as “heirs property” within the meaning of RPAPL 993(2)(e) is subject to the mandates of the UPHPA, which supersedes the general partition statutes, including RPAPL 901 … .

Following the commencement of a partition action involving “heirs property,” RPAPL 993(5)(a) mandates that the matter shall proceed to a settlement conference, “for the purpose of holding settlement discussions, pertaining to the relative rights and obligations of the parties with respect to the subject property” … . …

RPAPL 993(5)(e) further requires that “[b]oth the plaintiff[ ] and defendant[ ] shall negotiate in good faith [during the UPHPA mandated settlement conferences] to reach a mutually agreeable resolution.” * * *

​… [A]s the defendant contends, the equitable factors set forth in RPAPL 993(9)(a) strongly favored her position that she was primarily interested in reaching an agreement that would allow her to maintain her ownership interest in the property. … [T]he defendant’s mother had purchased the property in 1970, approximately 50 years before the plaintiff acquired its interest in the property and commenced this action. … [T]he defendant had grown up in the property, her children had grown up there, and her son still lived there … . Additionally, the plaintiff, who is not a relative of either person from whom it purchased its 75% interest in the property …, allegedly purchased that interest for $136,000. Despite purchasing its interest in the property for approximately one quarter of the appraised value of that interest of $521,250, the plaintiff made a final offer to sell its interest in the property for $500,000, which would afford the plaintiff a significant profit … . Laurelton Estates, LLC v Prince, 2025 NY Slip Op 05226, Second Dept 10-1-25

Practice Point: Consult this opinion for insight into what the “good-faith-settlement-negotiation” requirements in the Uniform Partition of Heirs Property Act (UPHPA) are. The requirements were not met here. ​

 

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AS PART OF A PLEA BARGAIN, THE JUDGE PROMISED TO ORDER DEFENDANT TO BE ENROLLED IN THE COMPREHENSIVE ALCOHOL AND SUBSTANCE ABUSE TREATMENT (CASAT) PROGRAM; BECAUSE DEFENDANT WAS NOT ELIGIBLE FOR THE PROGRAM, HIS MOTION TO VACATE HIS GUILTY PLEA SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing County Court, determined defendant’s motion to vacate his guilty plea should have been granted. The judge’s promise to order defendant to be enrolled in the CASAT (comprehensive alcohol and substance abuse treatment) program was central to defendant’s plea bargain. The program was not available to the defendant because he was not convicted of a drug-related offense:

… County Court promised to order him to be enrolled in CASAT, a promise that could not be fulfilled because CASAT is only available to individuals convicted of drug-related offenses (see Penal Law § 60.04 [6]). We agree. “A guilty plea induced by an unfulfilled promise either must be vacated or the promise honored” … . Defendant was not enrolled in CASAT as he was not statutorily eligible for participation (see Penal Law § 60.04 [6] …), so the promise cannot be honored. Moreover, the record reflects that the mandate for CASAT enrollment was “part and parcel of defendant’s plea agreement” … . Thus, defendant is entitled to vacatur of his guilty plea … . People v Robinson, 2025 NY Slip Op 05125, Third Dept 9-25-25

Practice Point: Here defendant was promised, as part of a plea bargain, enrollment in the CASAT program. It turned out he was not eligible for the program. Because the program was “part and parcel of defendant’s plea agreement,” defendant was entitled to vacatur of his guilty plea.

 

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IN THIS CHILD VICTIMS ACT CASE ALLEGING SEXUAL ABUSE BY A TEACHER, PLAINTIFF-STUDENT’S DEMAND FOR PUNITIVE DAMAGES AGAINST THE SCHOOL PROPERLY SURVIVED THE MOTION TO DISMISS, BUT THE DEMAND FOR PUNITIVE DAMAGES AGAINST THE DIOCESE DID NOT; CRITERIA EXPLAINED (FIRST DEPT). ​

The First Department, over a dissent, in a full-fledged opinion by Justice Kapnick, over a dissenting opinion, affirmed the denial of the school’s and the Episcopal Diocese’s motions to dismiss the complaint in this Child Victims Act action stemming from the alleged sexual abuse of plaintiff-student by a teacher (Mr. Bravo). The majority affirmed the denial of the motion to dismiss the request for punitive damages against the school but dismissed the demand for punitive damages against the Diocese. The dissent argued the demand for punitive damages against the school should also have been dismissed:

Plaintiff’s demand for punitive damages against the School was … properly sustained at this prediscovery stage of the litigation … . Contrary to the dissent’s position, this Court has found claims for punitive damages may be appropriate in certain negligence cases … . Specifically,”[p]unitive damages in actions involving negligent hiring, retention, or supervision generally require conduct evincing a high degree of moral culpability, so flagrant as to transcend simple carelessness, or which constitutes willful or wanton negligence or recklessness so as to evince a conscious disregard for the rights of others” … . A “conscious disregard” requires knowledge, or actual notice, of the potential of harm to others … . The complaint alleges that the School was given actual notice that Mr. Bravo was sexually abusing plaintiff and then failed to adequately investigate the allegations to such an extent that suggests ulterior motives. Further, the dissent is mistaken in its belief that plaintiff’s denial of the abuse during a meeting with school administrators negates the actual notice received by the School from the parents of her friends and a therapist, which, by itself, triggered a statutorily required response that the School did not fully implement … . * * *

Given that punitive damages are “awarded only in ‘singularly rare cases,'” they are appropriately reserved for those cases which allege that the defendants, despite having actual knowledge of the perpetrator’s propensity for the sexual abuse of children, concealed that knowledge or otherwise knowingly underresponded to that information so as to suggest that they dismissed all concern for the rights of others in favor of their own self-interest … . As plaintiff here has not alleged the knowledge required to infer any improper state of mind on behalf of the Episcopal Diocese, her demand for punitive damages against the Episcopal Diocese should be dismissed … . C.R. v Episcopal Diocese of N.Y., 2025 NY Slip Op 05144, First Dept 9-25-25

Practice Point: Consult this decision for a discussion of the allegations in a Child Victims Act complaint which will support the denial of a motion to dismiss a request for punitive damages.

 

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AN ATTORNEY SHOULD BE DISQUALIFIED UNDER THE ADVOCATE-WITNESS RULE WHEN THE ATTORNEY’S TESTIMONY IS NECESSARY TO PROVE ISSUES IN DISPUTE, NOT THE CASE HERE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the husband’s attorney, Smith, should not have been disqualified on the ground he would be called as a witness at trial. The appellate division determined Smith’s testimony was not relevant to the financial issues in the divorce action. Therefore Smith should not have been disqualified on the basis that his testimony would be necessary at trial:

The advocate-witness disqualification rules contained in the Code of Professional Responsibility provide guidance, but are not binding authority for courts in determining whether a party’s attorney should be disqualified during litigation … . “Disqualification of a law firm during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants. Disqualification denies a party’s right to representation by the attorney of its choice” … . In considering whether to disqualify counsel, the court must consider a litigant’s right to select his own counsel and the fairness and effect of disqualification in the particular factual setting … . Whether to disqualify an attorney rests in the sound discretion of the trial court … . However, an attorney should be disqualified only when his or her testimony is necessary to prove the issues in dispute … . The party seeking or supporting disqualification need not show that counsel’s continued representation would prejudice his or her client where the court finds that counsel’s testimony is necessary on his or her client’s behalf … . De Luca v De Luca, 2025 NY Slip Op 05146, First Dept 9-25-25

Practice Point: Here the proposed testimony by the attorney was not necessary to prove issues in dispute. Therefore the attorney should not have been disqualified.

 

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EXPULSION OF PETITIONER-STUDENT FROM THE PHYSICIAN ASSISTANT PROGRAM “SHOCKED [THE COURT’S] SENSE OF FAIRNESS;” PETITONER WAS REINSTATED IN GOOD STANDING (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the student’s petition to vacate her college’s determination to expel her from the physician assistant program should have been granted. The petitioner-student had written recommendations for friends seeking admission to the program. Although the recommendations clearly indicated the petitioner was still a student, the digitally generated designation PA-C (Physician Assistant-Certified) appeared on the recommendations instead of PA-S (Physician Assistant -Student). The First Department found expulsion was not supported by the record and ordered the student reinstated in good standing:

“It is well settled that a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion . . .” … . A review of the record makes it clear that the faculty members of the College’s Professional Conduct Review Committee and Academic Performance Committee unreasonably failed to view the totality of the circumstances and abused their discretion. This mistake harmed no one; petitioner consistently maintained that the mistake was inadvertent, as supported by petitioner’s digital signature on the letter with her student email address as well as the multiple references in the accompanying CASPA form to petitioner as a “student”; and the typographical mistake of the use of PA-C was rectified on all documentation … .

Pursuant to the College’s policy, petitioner’s inadvertent mistake simply warranted counseling or, at worst, probation. Here, the College’s imposition of the ultimate academic sanction of expulsion is “so disproportionate to the offense as to shock our sense of fairness” … as to warrant its vacatur. Matter of Mirza v College of Mount St. Vincent, 2025 NY Slip Op 05156, First Dept 9-25-25

Practice Point: Here the appellate court found that the expulsion of a college student “shock[ed] our sense of fairness.” The court vacated the expulsion and reinstated the student in good standing.

 

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