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A JUDGE CANNOT DELEGATE PARENTAL ACCESS DETERMINATIONS TO A MENTAL HEALTH PROFESSIONAL (SECOND DEPT). ​

The Second Department noted that a judge should not delegate to a mental health professional the determination of whether a parent will be awarded parental access:

“[A] court may not properly delegate to mental health professionals the ultimate determination of whether a parent will be awarded [parental access] rights” … . It is “improper for [a] court to condition future [parental access] on the recommendation of a mental health professional” … . Here, the Family Court erred by delegating to the therapeutic agency (1) the authority to determine when therapeutic parental access would cease and the father’s prior stipulated unsupervised parental access schedule would be reinstated and (2) the discretion to expand and/or modify the father’s access to the children … . Accordingly, the order must be modified by deleting the provisions thereof modifying the parental access provisions of the judgment of divorce so as to condition the father’s parental access on the therapeutic agency’s determinations. Matter of McCook v Delbrune, 2025 NY Slip Op 06322, Second Dept 11-19-25

 

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DOCUMENTS RELATING TO THE MENTAL-HEALTH TREATMENT OF A PEDOPHILE PRIEST WERE NOT PROTECTED BY PRIEST-PENITENT, PHYSICIAN-PATIENT OR PSYCHOLOGIST-PATIENT PRIVILEGES; THE NAMES OF OTHER CHILDREN ABUSED BY THE PRIEST ALLEGED TO HAVE ABUSED PLAINTIFF ARE DISCOVERABLE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, determined progress reports concerning the mental health treatment of a pedophile priest were discoverable without redaction in this Child Victims Act case against the Diocese. The Diocese claimed the redacted information was protected from disclosure by the priest-penitent, physician-patient and psychologist-patient privileges. The Second Department determined those privileges were waived by the (pedophile) priest who consented to forwarding the reports to a third-party, a Bishop overseeing the priest’s progress. In addition, the priest-penitent privilege did not apply because the documents did not relate to spiritual guidance. The Second Department further determined that the names of other victims allegedly abused by the same priest were discoverable:

This appeal permits us to address two principal sets of issues. The first is a rare two-step analysis regarding the potential disclosure of progress reports and letters generated at the request of a religious organization to determine whether an alleged pedophile priest could be safely returned to duties at a parish. Under the circumstances of this appeal, we hold that the progress reports of an alleged pedophile priest that are shared with his Bishop with accompanying letters, to assist the Bishop in determining whether the priest may return to parish duties, fall outside the scope of the clergy-penitent privilege of confidentiality under CPLR 4505. Further, we hold that the physician-patient and psychologist-patient privileges of confidentiality for progress reports and letters generated by a psychological treatment facility to assist the same Bishop’s determination, and disclosed to the Bishop for that purpose, are waived under CPLR 4504 and 4507. Relatedly, we hold that the Appellate Division, Second Department, agrees with the reasoning of the Appellate Divisions, First and Third Departments, that in actions pursuant to the Child Victims Act (CVA) (see CPLR 214-g), courts may exercise discretion in favor of requiring the unredacted disclosure of the identities of alleged abuse victims other than the plaintiff, so long as those abuses were committed by the same alleged abuser rather than by any other alleged abuser. Maida v Diocese of Brooklyn, 2025 NY Slip Op 06314, Second Dept 11-19-25

​Practice Point: Consult this opinion for discussions of the nature of the priest-penitent, physician-patient and psychologist-patient privileges in the context of the discovery of documents relating to the mental health treatment of a pedophile priest accused of abusing children.

Practice Point: Consult this opinion for a discussion of the discoverability of the names of other children abused by the priest who is alleged to have abused the plaintiff.

 

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THE SECOND DEPARTMENT HAD REVERSED ON APPEAL, DETERMINING THE COMPLAINT SHOULD HAVE BEEN DISMISSED; WHEN SUPREME COURT WROTE A JUDGMENT DISMISSING THE COMPLAINT BASED ON THE SECOND DEPARTMENT’S DECISION IT IMPROPERLY ADDED A SENTENCE WHICH WAS NOT IN THE DECISION; A JUDGMENT BASED UPON AN APPELLATE DECISION MUST STRICTLY CONFORM TO THE DECISION (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the judgment entered by Supreme Court after reversal on apply did not strictly conform to the Second Department’s decision. Presumable the extra sentence added by Supreme Court was struck on appeal:

… [T]he judgment should not have included the provision directing “that Plaintiff is permitted to file a new action as against [the defendant] in accordance with Brothers v. Florence, 95 NY2d 290 (2000),” as the judgment was entered upon this Court’s decision and order dated December 28, 2022 … , which did not grant such relief to the plaintiff … . “A ‘written order [or judgment] must conform strictly to the court’s decision,’ and in the event of an inconsistency between a judgment and a decision or order upon which it is based, the decision or order controls” … . “Such an inconsistency may be corrected either by way of a motion for resettlement or on appeal” … . Deutsche Bank Trust Co. Ams. v Smith, 2025 NY Slip Op 06308, Second Dept 11-19-25

Practice Point: After reversal on appeal, any judgment written by the lower court must strictly conform to the language of the appellate decision. Here Supreme Court wrote a judgment dismissing the complaint but improperly added a sentence (which was not in the appellate decision) to the effect that plaintiff was permitted to file a new action.

 

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GENERALLY A HOMEOWNER WHO DOES NOT DIRECT THE WORK ON THE HOME CANNOT BE HELD LIABLE FOR A LADDER-FALL PURSUANT TO LABOR LAW 240(1); BUT THE HOMEOWNER’S EXEMPTION DOES NOT APPLY WHEN THE WORK IS RELATED TO A COMMERCIAL PURPOSE; HERE THERE WERE QUESTIONS OF FACT WHETHER THE PROPERTY WAS TO BE USED FOR COMMERCIAL PURPOSES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact whether the defendant property-owner in this ladder-fall case was entitled to the homeowner’s exemption from Labor Law 240(1) liability because the work related to a commercial purpose:

“Although the Labor Law generally imposes liability for worker safety on property owners and contractors, it exempts from liability ‘owners of one and two-family dwellings who contract for but do not direct or control the work'” ( … Labor Law §§ 240[1]; 241[6]). However, “[t]he exemption ‘was not intended to insulate from liability owners who use their one- or two-family houses purely for commercial purposes'” … . “‘[R]enovating a residence for resale or rental plainly qualifies as work being performed for a commercial purpose'” … . “Where the property serves both residential and commercial purposes, [a] determination as to whether the exemption applies in a particular case turns on the nature of the site and the purpose of the work being performed, and must be based on the owner’s intentions at the time of the injury” … .

Here, the defendant failed to eliminate triable issues of fact as to whether he was entitled to the homeowner’s exemption, including whether the work being performed related to a commercial purpose of the premises … and whether the defendant intended to use the premises as a three-family dwelling … .  Reyes v Rahman, 2025 NY Slip Op 06348, Second Dept 11-19-25

Practice Point: The homeowner’s exemption from Labor Law 240(1) liability does not apply where the home is used for commercial purposes.​

 

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THE DISTRICT ATTORNEY’S DATASHEET IS AN ATTORNEY-WORK-PRODUCT WHICH IS NOT SUBJECT TO FOIL DISCLOSURE; BECAUSE PETITIONER DID NOT SUBSTANTIALLY PREVAIL IN THE FOIL PROCEEDINGS, PETITIONER WAS NOT ENTITLED TO AN AWARD OF ATTORNEY’S FEES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the District Attorney’s (D.A.’s) datasheet was an attorney-work-product which was not subject to a FOIL disclosure:

Supreme Court appropriately ordered an in camera inspection of all records responsive to petitioner’s FOIL request, including the datasheet that was ultimately produced with redaction of personal information regarding certain people involved in the relevant criminal matter (Public Officers Law § 84 et seq.). However, those records should not have included the D.A. datasheet. This Court has previously held that the D.A. datasheet constitutes attorney work product, as it contains the analysis and conclusions of the intake attorney … . As a result, CPLR 3101(c) protects the datasheet from disclosure under FOIL, and it is not subject to disclosure even with redactions … .

In light of this determination, the award of attorneys’ fees is unwarranted, as petitioner has not “substantially prevailed” in its appeal of respondent’s denial … . Furthermore, even had petitioner substantially prevailed, Supreme Court made no “find[ing] that the agency had no reasonable basis for denying access,” and thus, there was no basis for an award of attorneys’ fees to petitioner … . Matter of Law Off. of Cyrus Joubin v Manhattan Dist. Attorney’s Off., 2025 NY Slip Op 06283, First Dept 11-18-25

Practice Point: A FOIL request for a District Attorney’s datasheet will be denied because the datasheet is privileged (attorney-work-product).

 

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PLAINTIFF FELL GOING DOWN PERMANENT STEPS AFTER HE STEPPED OFF THE LADDER; THERE WAS NO LIABILITY UNDER LABOR LAW 240(1)—NO FAILURE OR ABSENCE OF A SAFETY DEVICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was no liability under Labor Law 240(1) because plaintiff fell going down permanent steps after he stepped off the ladder:

Plaintiff testified that on the day of his accident he was working in a meeting room that had projection screens, soundproof walls, and raised floors, including a platform for the speakers. The platform had two access points — one via a ramp and the other on the opposite side of the platform, via a two-step staircase. Plaintiff needed to work on the ceiling above the platform, so he placed his ladder on the platform near the staircase. After he completed his work, he descended the ladder and placed both feet on the platform floor. He then turned to walk down the two-step staircase, missed a step, and fell.

There is no liability pursuant to Labor Law § 240(1) where the plaintiff’s injuries are not related to the failure of a safety device, such as a ladder, to protect the plaintiff from a gravity-related hazard … . Where the “injury results from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first instance, no [Labor Law § 240(1)] liability exists” … . Healy v Trinity Hudson Holdings, 2025 NY Slip Op 06278, First Dept 11-18-25

Practice Point: The failure of absence of a safety device is a prerequisite for liability under Labor Law 240(1). Here plaintiff safely stepped onto a permanent platform from the ladder and then fell going down permanent steps—no Labor Law 240(1) liability.​

 

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PLAINTIFF TESTIFIED HE WAS STANDING AT THE TOP OF AN UNSECURED A-FRAME LADDER WHEN IT MOVED AND HE FELL; THE FACT THAT THERE WERE NO WITNESSES DID NOT PRECLUDE SUMMARY JUDGMENT IN PLAINTIFF’S FAVOR ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this A-frame ladder-fall case. Plaintiff was standing at the top of the unsecured ladder when it moved and he fell. The fact that there were no witnesses to the accident did not raise a question fact because plaintiff’s testimony was not contradicted and his credibility was not called into question:

Plaintiff testified at his deposition that he worked at the top of the ladder, which was unsecured, it suddenly moved and fell, causing him to land on the floor and injure his shoulder. Plaintiff also testified that after he fell from the ladder, he stood it back up before his supervisor returned. The supervisor stated that upon his return to the room, plaintiff, who was standing next to the upright ladder, told him that the ladder was shaky and had fallen because no one was holding it.

Plaintiff made a prima facie showing that his injuries were proximately caused by a violation of Labor Law § 240(1). The evidence established that defendant failed to provide a safety device to ensure that the ladder, which plaintiff was instructed to use, would remain upright while he worked. The evidence also showed that plaintiff fell off the ladder when it shifted and fell … . This evidence was sufficient to establish a prima facie case, and plaintiff was not obligated to show that the ladder itself was defective … . Molina v Chatham Towers, Inc., 2025 NY Slip Op 06285, First Dept 11-18-25

Practice Point: To warrant summary judgment in a ladder-fall case, it is enough that the ladder was unsecured and moved. There is no need to show the ladder was defective.

 

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CONTRARY TO THE STANDARD USED BY THE WORKERS’ COMPENSATION BOARD, AN SLU NEED NOT BE REDUCED BY THE AMOUNT OF ANY PRIOR SLU TO THE SAME PART OF THE BODY; MATTER REMITTED FOR APPLICATION OF THE PROPER STANDARD (THIRD DEPT).

The Third Department, reversing and remitting the matter to the Workers’ Compensation Board, determined the Board applied the wrong standard for compensation for an injury to a member for which an SLU had been made for a prior injury. The Board used the erroneous standard that an SLU “must always be reduced by the amount of any prior SLU to the same statutory member:”

The Court of Appeals has clarified … that successive and “separate SLU awards for different injuries to the same statutory member are contemplated by [Workers’ Compensation Law §] 15 and, when a claimant proves that the second injury, ‘considered by itself and not in conjunction with the previous disability,’ has caused an increased loss of use, the claimant is entitled to an SLU award commensurate with that increased loss of use” … . Thus, a claimant’s entitlement to an additional SLU award for a successive injury to the same statutory member “turns upon the sufficiency of the medical proof adduced” … . “Such demonstration may include medical evidence that a prior injury and the current injury to the same member are ‘separate pathologies that each individually caused a particular amount of loss of use of [the subject member]’ and that the current injury resulted in a greater degree of loss of use of the body member in question ‘beyond that . . . [of] the prior injury’ ” … .

… [T]he standard articulated and then applied by the Board, which relied solely upon Matter of Genduso v New York City Dept. of Educ. (164 AD3d at 1510), was that an SLU “must always be reduced by the amount of any prior SLU to the same statutory member” (emphasis supplied). The Board is not required to reduce or offset the SLU by the prior SLU where a “claimant demonstrates that a subsequent injury increased the loss of use of a body member beyond that resulting from the prior injury” (Matter of Johnson v City of New York, 38 NY3d at 444). Given that the Board’s decision did not consider, or otherwise ascertain the credibility of, the conflicting medical evidence that was before it — which included documentary and testimonial evidence from claimant’s treating physician — regarding the extent to which claimant’s injuries were “separate pathologies that each individually caused a particular amount of loss of use” of his right leg … , the Board’s finding of a 12.5% SLU of the right leg must be reversed and the matter remitted for further consideration by the Board in accordance with the holding in Matter of Johnson [supra]. Matter of Krein v Green Haven Corr. Facility, 2025 NY Slip Op 06238, Third Dept 11-13-25

Practice Point: When an SLU has been made for a prior injury, a subsequent SLU for the same part of the body need not be reduced by the amount of the prior SLU. The claimant can submit medical evidence that the injuries are separate pathologies which individually caused a specific amount of loss of use.

 

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ALTHOUGH PLAINTIFF’S COUNSEL IN THIS NEGLIGENCE ACTION DEMONSTRATED A JUSTIFIABLE EXCUSE FOR NOT TIMELY FILING A NOTE OF ISSUE AFTER A NINETY-DAY DEMAND, PLAINTIFF DID NOT DEMONSTRATE A MERITORIOUS CAUSE OF ACTION; PLAINTIFF SUBMITTED AN AFFIDAVIT WHICH RELIED ON HEARSAY PROVIDED BY TWO SOURCES, BUT DID NOT SUBMIT AFFIDAVITS FROM THOSE SOURCES (FIRST DEPT).

The First Department, reversing Supreme Court, determined, although plaintiff offered a justifiable excuse for failing to timely file a note of issue, plaintiff did not demonstrate a meritorious cause of action. Therefore the complaint should have been dismissed. The complaint alleged the defendants negligently failed to provide adequate mental health and substance abuse treatment to the decedent, who died of a drug overdose in a shelter owned and operated by defendants:

Following a period of over one year during which plaintiff failed to respond to their discovery demands, defendants served plaintiff with a written demand to serve and file a note of issue within 90 days (see CPLR 3216[b]). Plaintiff failed to respond within the 90-day period, resulting in defendants’ motions to dismiss for failure to prosecute.

Although plaintiff’s counsel offered a justifiable excuse for the failure to file a note of issue following defendants’ service of 90-day notices, plaintiff failed to submit an adequate affidavit of merit demonstrating a meritorious cause of action in opposition to defendants’ motions … . In her affidavit, plaintiff, who had no personal knowledge of the events in question, relied on two unnamed hearsay sources … . Plaintiff offered no excuse for failing to provide affidavits from the shelter residents who supplied her with the information upon which her affidavit was based … , and, in any event, she did not show that defendants’ negligence was “a substantial cause of the events” resulting in her son’s death … . Felipe v Volunteers of Am.-Greater N.Y., 2025 NY Slip Op 06252, First Dept 11-13-25

Practice Point: In seeking to avoid dismissal of a complaint for failing to timely file a note of issue after a 90-day demand, a plaintiff must offer a justifiable excuse and demonstrate a meritorious cause of action. Here plaintiff’s counsel provided a justifiable excuse. But to demonstrate a meritorious cause of action plaintiff submitted an affidavit which relied on hearsay. Without affidavits from the sources of the hearsay, a meritorious cause of action was not demonstrated and the complaint should have been dismissed.

 

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THE PETITION ALLEGED THE DECEASED CO-TRUSTEE CONCEALED THE TRUST AND DISTRIBUTIONS TO THE TRUST BENEFICIARIES; PETITIONERS HAD STANDING TO SEEK DISGORGEMENT OF THE COMMISSIONS PAID TO THE DECEASED CO-TRUSTEE UNDER “BREACH OF FIDUCIARY DUTY” AND “FAITHLESS SERVANT” THEORIES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the petition alleging Kendall Chen, the deceased co-trustee of his father’s trust, breached his fiduciary duty to the trust and to the trust beneficiaries, and alleging a “faithless servant” claim, should not have been dismissed. Kendall allegedly concealed the existence of the trust from the beneficiaries (his children). Petitioners had standing to seek disgorgement of the commissions paid to Kendall:

The petition alleged that Kendall actively subverted the trust’s stated purpose insofar as, from 2000 until 2016, he concealed from his children the existence of the trust and the joint bank accounts into which distributions from the trust were made for each grandchild, and converted a significant portion of those funds for his personal financial benefit. If proven, Kendall’s conduct constituted a breach of his fiduciary duty to the trust (as well as to his children), and the trust may recover the commissions paid to him at a time when he was a faithless servant, even if the trust suffered no damages … .

Indeed, the trust was damaged by Kendall’s receipt of commissions at a time when he allegedly breached his fiduciary duty to the trust, and it is for that reason that petitioners have standing to seek disgorgement of the commissions paid to Kendall from 2000 to 2015. The corpus of the trust was diminished by the payment of the commissions when Kendall was diverting to himself the distributions intended for his children. …

We reject the estate’s argument that the faithless servant claim is unpreserved. The doctrine has a “close relationship and overlap” with breach of fiduciary duty, which petitioners did raise before the motion court … .  Matter of Chen, 2025 NY Slip Op 06255, First Dept 11-13-25

Practice Point: Here it was alleged the co-trustee concealed the existence of the trust and distributions from the trust from his children, the beneficiaries of the trust. The petitioners had standing to seek disgorgement of the commissions paid to the co-trustee under “breach of fiduciary duty” and “faithless servant” theories.

 

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