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THE RECORD DID NOT SUPPORT PLACEMENT OF THE AUTISTIC CHILD IN A “QUALIFIED RESIDENTIAL TREATMENT PROGRAM” (QRTP) AS OPPOSED TO FOSTER CARE; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ventura, reversing Family Court, determined the record did not support placement of the child, who is on the autism spectrum, in a “qualified residential treatment program” (QRTP) pursuant to the New York State Family First Prevention Service Act. The case gave the court the opportunity to decide an issue of first impression, i.e., which factors a court must consider in approving a child’s placement in a QRTP:

Here, since the qualified individual assessed the child and determined that placement in a QRTP would not be appropriate, the Family Court could approve the child’s placement in the QRTP only if it complied with the requirements set forth in Family Court Act § 1055-c(2)(c). Although the court found that QRTP placement was inconsistent with the child’s long-term permanency goal of adoption and that the child’s needs could be met in a less restrictive environment, the court nevertheless approved the child’s placement in a QRTP. The court, in essence, based this determination on a finding that there was not an alternative setting available that could meet the child’s needs in a less restrictive environment. * * *

However, the Family Court’s findings in this regard were not supported by the record. The court’s finding that there was not an alternative setting available was based on Loehr’s [the foster care supervisor’s] testimony that SCO [a foster-care agency] did not have any foster family homes available that could meet the child’s needs but that SCO was working to place the child in a foster family home for developmentally disabled children and was actively exploring families to adopt the child. On cross-examination, Loehr testified that SCO had not yet placed the child in a foster family home for children with developmental disabilities or a therapeutic foster family home through another agency because this would require a “step-up” conference, yet Loehr failed to explain why a “step-up” conference had not been held during the two months in which the child had been placed in the QRTP. This testimony was insufficient to support the court’s finding that there was not an alternative setting available that could meet the child’s needs in a less restrictive environment. Furthermore, Loehr’s testimony that the child had continuously lived in a foster family home setting from 2019 until January 2024, during which time his needs consistently had been met, calls into question the purported unavailability of any alternative, less restrictive settings. Matter of Joseph D.L. (Keisha T.M.), 2025 NY Slip Op 04178, Second Dept 7-16-25

Practice Point: Consult this opinion for the criteria for placement of a child in a “qualified residential treatment program” (QRTP) as opposed to foster care. The criteria were not met here.

 

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HERE PLAINTIFF SUBMITTED A SUPPLEMENTAL BILL OF PARTICULARS, NOT AN AMENDED BILL OF PARTICULARS, MORE THAN 30 DAYS BEFORE TRIAL; DEFENDANTS SHOULD HAVE ACCEPTED IT; LEAVE OF COURT WAS NOT REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined plaintiff was entitled to compel defendants to accept a second supplemental bill of particulars after plaintiff had surgery on her injured shoulder:

“Pursuant to CPLR 3043(b), a plaintiff in a personal injury action may serve a supplemental bill of particulars containing ‘continuing special damages and disabilities,’ without leave of the court at any time, but not less than 30 days prior to trial, if it alleges ‘no new cause of action’ or claims no ‘new injury'” (… quoting CPLR 3043[b]). Here, contrary to the defendants’ contention, the plaintiff sought to allege continuing consequences of the injuries suffered to her left shoulder and described in the original bill of particulars, rather than new and unrelated injuries … . Since the contested bill of particulars is a supplemental bill of particulars, rather than an amended bill of particulars, and was served more than 30 days prior to trial, leave of court was not required … . Miller v Great Vegetable Farm, Inc., 2025 NY Slip Op 04170, Second Dept 7-16-25

Practice Point: Here plaintiff documented the results of surgery on her injured shoulder in a supplemental bill of particulars. Because the document addressed injuries already alleged to have been caused by the slip and fall, and not new injuries, the document was a supplemental bill of particulars, not an amended bill of particulars. As long as a supplemental bill of particulars is served more than 30 days before trial, leave of court is not required and defendant must accept it.

 

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ALTHOUGH THE NOTICE OF CLAIM IN THIS SLIP AND FALL ACTION AGAINST THE CITY WAS SERVED ONE DAY LATE, AND PLAINTIFF WAS SO NOTIFIED BY THE CITY, THE CITY ALSO INDICATED IN SEVERAL COMMUNICATIONS THAT IT WAS CONSIDERING THE CLAIM; THE CITY WAS THEREFORE EQUITABLY ESTOPPED FROM ASSERTING THE NOTICE OF CLAIM WAS NOT TIMELY SERVED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case against NYC, determined the city was equitably estopped from asserting the notice of claim was untimely served. Although the notice of claim was served one day after the 90-day deadline, and the city initially notified plaintiff that service was untimely, subsequent communication from the city indicated the claim was being considered:

The plaintiff’s submissions established that although the Comptroller sent the plaintiff a letter dated March 6, 2020, indicating that a notice of claim was not timely filed within 90 days from the date of occurrence, the Comptroller sent the plaintiff another letter, also dated March 6, 2020, acknowledging receipt of the notice of claim, which was assigned a claim number, and stating that “[w]e will do our best to investigate and, if possible, settle your claim.” That letter also stated that “if we are unable to resolve your claim, any lawsuit against the City must be started within one year and ninety days from the date of the occurrence,” without any reference to the claim being untimely … . Further, the plaintiff’s attorney averred that on March 21, 2021, the City sent a letter requesting certain documents from the plaintiff “to evaluate the claim for settlement purposes” and that the plaintiff’s attorney emailed the requested documents the following day. The plaintiff also submitted an email dated March 25, 2021, from Millicent Nicholas-Richards, Negotiation and Settlement Supervisor for the New York City Law Department, acknowledging receipt of the requested documents, and stating that “[w]e are reviewing” and that the plaintiff’s attorney would be contacted if any additional documents were needed. Thus, the plaintiff demonstrated that the defendants made representations that the plaintiff’s claim was under consideration for settlement and that the plaintiff did not need to take any action other than providing documents “for settlement purposes” or to commence an action against the City within one year and 90 days if a settlement was not possible. Under these circumstances, the plaintiff, who did not move to deem the notice of claim timely served or to extend the time to serve the notice of claim within the one year and 90 day limitations period, was “lulled . . . into sleeping on [his] rights to [his] detriment” … .Guo En Tan v City of New York, 2025 NY Slip Op 04161, Second Dept 7-16-25

Practice Point: The notice of claim in this slip and fall action against the city was served one day late. Communications from the city indicated the city was considering the claim. The deadline for making a motion for leave to serve and file a late notice of claim passed. At that point, the city was equitably estopped from asserting the notice of claim was not timely served as a defense to the action.​.

 

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IN THIS REAR-END COLLISION CASE, THE DEFENDANT DRIVER ALLEGED PLAINTIFF DRIVER STOPPED IN THE MIDDLE LANE OF TRAFFIC FOR NO APPARENT REASON, THEREBY RAISING A QUESTION FACT ABOUT WHETHER PLAINTIFF DRIVER WAS SOLELY AT FAULT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs in this rear-end collision case were not entitled to summary judgment. Defendant raised a question of fact alleged plaintiff driver stopped suddenly in the middle lane of traffic for no apparent reason:

“A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle” … . Thus, “[a] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision” … .

Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability by submitting an affidavit of the plaintiff driver, which demonstrated that the plaintiffs’ vehicle was stopped for a traffic condition ahead when it was struck in the rear by the defendants’ vehicle … . However, an affidavit of the defendant driver … raised triable issues of fact as to how the accident occurred and whether the defendants had a nonnegligent explanation for their vehicle striking the rear of the plaintiffs’ vehicle. According to the defendant driver, the plaintiff driver was solely at fault in causing the accident by making a sudden stop for no apparent reason in the middle of their lane of traffic on the highway … . Correa v Cannon, 2025 NY Slip Op 04157, Second Dept 7-16-25

Practice Point: Unless the driver of the rear vehicle in a rear-end collision case raises a nonnegligent explanation for striking the car in front, summary judgment will be awarded to the front driver. Here the rear driver alleged the front driver stopped in the middle lane of traffic for no apparent reason. That allegation raised a question of fact whether the front driver was solely at fault.

 

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THE JURY SHOULD HAVE BEEN INSTRUCTED ON A LESSER INCLUDED OFFENSE, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s kidnapping first degree conviction and ordering a new trial on that count, determined the trial judge should have given the jury an instruction on unlawful imprisonment second degree as a lesser included offense. Kidnapping first degree requires restraint for more than 12 hours. There was a reasonable view of the evidence which supported the restraint was less than 12 hours:

“A defendant is entitled to a lesser included offense charge upon request when (1) it is impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct and (2) there is a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater” … . Inasmuch as there is no dispute regarding the first prong, we turn our focus to the second. In so doing, “we must view the evidence in the light most favorable to the defendant” … . “It is only where there is no possible view of the facts by which the jury could find [the defendant guilty of] a lesser [included offense] that [a] refusal [to submit that offense] is justified” … . In light of the evidence relied upon by defendant, as summarized in our above weight of the evidence analysis, we agree with defendant that there is a reasonable view of the evidence that he committed the lesser offense by restraining the victim, but not for more than 12 hours as required to commit the greater offense. People v Akins, 2025 NY Slip Op 04122, Third Dept 7-10-25

Practice Point: Where a reasonable view of the evidence supports a lesser included offense, it is reversible error to refuse to instruct the jury on it.

 

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HERE DEFENDANTS SOUGHT TO USE PLAINTIFF’S INDICTMENT AND PLEA TRANSCRIPT IN THEIR DEFENSE OF PLAINTIFF’S CIVIL ACTION; THE ISSUE IS WHETHER THOSE RECORDS WERE SUBJECT TO THE SEALING ORDER ISSUED BY COUNTY COURT; IF THE RECORDS WERE COURT RECORDS AND PROCURED FROM THE COURT, THE SEALING ORDER WOULD NOT EXTEND TO THEM; IF THE RECORDS WERE PROCURED FROM LAW ENFORCEMENT SOURCES, THE SEALING ORDER APPLIES; MATTER REMITTED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, determined that whether certain records associated with plaintiff’s criminal action, including the indictment and plea transcript, were “sealed” and thus not accessible by the defendants depended on where the defendants procured them. The sealing order did not extend to “court records” as opposed to records kept by the police and prosecutors:

We must … decide whether CPL 160.55 i… encompasses the content that plaintiff seeks to have excluded from trial. After plaintiff entered a guilty plea to disorderly conduct in the criminal action, County Court issued a sealing order pursuant to CPL 160.55, which applies when an action has been terminated by a conviction of certain violations, including disorderly conduct. * * *

A careful comparison of the language used in CPL 160.50 and 160.55 leads us to agree with defendants’ contention that CPL 160.55 does not extend to court records. Under CPL 160.55 (1) (c), once notified of a qualifying violation conviction, the enumerated criminal justice entities must seal “all official records and papers relating to the arrest or prosecution” in their possession. By comparison, CPL 160.50 (1) provides that, when an action has been terminated in favor of the accused, unless the court requires otherwise, “the record of [an] action or proceeding shall be sealed” and notification of such termination and sealing shall be sent by the clerk of the court to the “the commissioner of the division of criminal justice services and the heads of all appropriate police departments and other law enforcement agencies” … . Upon receipt thereof, “all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor’s office shall be sealed and not made available to any person or public or private agency” (CPL 160.50 [1] [c] … . By its plain terms, CPL 160.50 seals official court records pertaining to the arrest and prosecution, whereas CPL 160.55 omits that express sealing … . * * *

We are mindful that the record does not reveal how defendants obtained copies of the indictment and combined plea/sentencing transcript. To the extent defendants obtained these documents from the official court file maintained by County Court, they would not be subject to the sealing order issued pursuant to CPL 160.55. However, if these documents were obtained from the files of “the division of criminal justice services, police agency, or prosecutor’s office” (CPL 160.55 [1] [c]), they would be subject to the sealing order.  … [P]laintiff did not waive the privilege that is afforded to these documents in the event they were obtained from one of the aforementioned law enforcement entities. Given that the record is not sufficiently developed on the issue of how these records were obtained, we must reverse so much of Supreme Court’s order as denied plaintiff’s motion in limine as it pertains to the indictment and plea/sentencing transcript and remit to Supreme Court for further proceedings on the matter. Kokoska v Joe Tahan’s Furniture Liquidation Ctrs., Inc., 2025 NY Slip Op 04130, Third Dept 7-10-25

Practice Point: Pursuant to Criminal Procedure Law section 160.55, a sealing order does not extend to court records, as opposed to records kept by law enforcement and prosecutors. Here there was a question whether the defendants procured the indictment and plea transcript from the court. If so, the sealing order did not apply to them.

 

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ALTHOUGH PETITIONER NURSING HOME, A LIMITED LIABILITY COMPANY, HAD AN EXCELLENT INFECTION CONTROL PROGRAM, IT WAS PROPERLY FINED FOR A VIOLATION OF THE INFECTION-CONTROL REGULATIONS BY ONE OF ITS EMPLOYEES (THIRD DEPT).

The Third Department, confirming the findings of the administrative law judge, in a full-fledged opinion by Justice Egan, determined the petitioner nursing-home-facility was subject to fines for violations of the COVID-19 infection-control regulations. The regulations required nursing home employees to change gowns and glove after being in a unit with COVID-19 positive residents. The court noted that petitioner, as a limited liability company, can be penalized for the intentional violation of regulations by its employees under an agency theory:

… [P]etitioner [limited liability company], like corporations and similar entities, may be penalized “for the intentional acts of its agents that are either (1) in violation of positive prohibitions or commands of statutes regarding corporate acts, (2) authorized through action of its officers or which are done with the acquiescence of its officers, or (3) performed on behalf of the corporation if undertaken within the scope of the agents’ authority, real or apparent” … . As it is alleged here that a regulation governing petitioner’s conduct was intentionally violated by one of its employees in the course of his work, petitioner may be penalized for that conduct, if proven. * * *

Petitioner had no deficiencies in the five infection control surveys conducted in the months leading up to the December 2020 survey, counsel for the Department conceded at the hearing that it “had a great infection control program for many months,” and the surveyor who witnessed the violation acknowledged that petitioner had developed an appropriate infection control plan and properly trained employees about their obligations under it. Respondent was nevertheless free to credit the proof that the aide violated that policy on one occasion in December 2020 and, notwithstanding petitioner’s efforts to argue otherwise, we are satisfied that such constitutes substantial evidence in the record for the determination that petitioner’s employee “violate[d], disobey[ed] or disregard[ed]” multiple provisions of 10 NYCRR 415.19 and the infection control program in the course of his work and that such rendered petitioner liable (Public Health Law § 12). Matter of RSRNC, LLC v McDonald, 2025 NY Slip Op 04131, Third Dept 7-10-25

Practice Point: Here a violation of Public Health Law regulations concerning COVID-19 infection control by an employee of petitioner nursing home, a limited liability company, warranted imposing a penalty on the nursing home.

 

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THE ARGUMENT THAT THE ARBITRATOR’S AWARD, WHICH ALLOWED REINSTATEMENT OF AN EMPLOYEE AFTER A PERIOD OF SUSPENSION, VIOLATED PUBLIC POLICY WAS REJECTED; CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the arbitrator’s award in this employment-discipline case should not have been vacated. The court rejected the argument that the award, which penalized the employee (Williams) for misbehavior as a corrections officer but allowed her reinstatement, violated public policy. The decision is too complex to fairly summarize here. But it illustrates just how difficult it is to vacate an arbitrator’s award on public-policy grounds:

“A court may vacate an arbitrator’s award only on grounds stated in CPLR 7511 (b)” … . Among other circumstances, vacatur is permitted where an arbitrator directs an award that “violates a strong public policy” … . An arbitration award may only be vacated on public policy grounds “where a court can conclude, without engaging in any extended factfinding or legal analysis [(1)] that a law prohibits, in an absolute sense, the particular matters to be decided, or [(2)] that the award itself violates a well-defined constitutional, statutory or common law of this State” … . As there is no contention that the law prohibited the arbitrator from deciding Williams’ guilt and penalty under the CBA, [collective bargaining agreement] our inquiry focuses on whether “the final result creates an explicit conflict with other laws and their attendant policy concerns” … . Matter of Spence (New York State Dept. of Corr. & Community Supervision), 2025 NY Slip Op 04135, Third Dept 7-10-25

Practice Point: Consult this decision for an explanation of the criteria for vacating an arbitrator’s award on public policy grounds.

 

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ALTHOUGH A CHILD WAS PRESENT IN THE HOME WHEN FATHER STRUCK HIS PREGNANT GIRLFRIEND, THERE WAS NO EVIDENCE THE CHILD SAW OR HEARD THE INCIDENT AND NO EVIDENCE THE CHILD WAS UPSET BY THE INCIDENT; THE NEGLECT AND DERIVATIVE NEGLECT (OF THE THEN UNBORN CHILD) FINDINGS REVERSED (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence did not support the findings that father neglected a child and derivatively neglected a child who was not yet born at the time of the incident. The findings were based on an incident in which father struck his girlfriend, who was pregnant, while a child, Jolie M., was in the house. However, the evidence did not demonstrate Jolie M. witnessed or heard the incident:

The testimony of the father’s girlfriend and an ACS child protective specialist established that the father struck his girlfriend in the mouth while Jolie M. was in her nearby bedroom down the hallway. However, the testimony also indicated that Jolie M. did not see the incident or any resulting injuries, did not hear the father’s girlfriend’s plea for the father to stop hitting her, and was otherwise unaware that a domestic violence incident, as opposed to a mere verbal argument, was occurring … . Moreover, no evidence was offered to suggest that Jolie M. was frightened or upset by the incident, and the testimony established that, when recounting the events in a subsequent interview, the child presented a calm demeanor, interacted normally and comfortably with the father, and reportedly felt safe with the father … . In the absence of evidence that Jolie M.’s physical, mental, or emotional condition was impaired or in danger of becoming impaired by the father’s acts of violence against his girlfriend, the court’s finding that the father neglected that child is not supported by a preponderance of the evidence … .

Consequently, the Family Court’s further finding that the father derivatively neglected Jose M. based on the same domestic violence incident was not supported by a preponderance of the evidence … . Matter of Jose M. (Jose M.), 2025 NY Slip Op 04094, Second Dept 7-9-25

Practice Point: To prove neglect based upon domestic violence there must be proof the child saw or heard the incident and was upset by it.

 

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TO WARRANT SUMMARY JUDGMENT IN A SLIP AND FALL CASE BASED ON LACK OF NOTICE OF THE CONDITION, A DEFENDANT MUST PROVE WHEN THE SPECIFIC AREA OF THE FALL WAS LAST CLEANED OR INSPECTED; PROOF OF GENERAL CLEANING PRACTICES IS NOT ENOUGH (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined the defendant hospital did not demonstrate a lack of constructive notice of the water on the floor in front of the elevator. To warrant summary judgment the defendant must show that the area of the slip and fall was inspected or cleaned close in time to the fall. Evidence of general cleaning practices is not enough:

… [T]he defendant failed to establish, prima facie, that it did not have constructive notice of the alleged condition that caused the plaintiff to fall. The deposition testimony of the defendant’s security manager and of another employee of the defendant merely referred to the general cleaning and inspection practices at the hospital. The defendant did not proffer any evidence demonstrating when the specific area where the plaintiff fell was last cleaned or inspected before the accident … . Delfino v Montefiore Nyack Hosp., 2025 NY Slip Op 04082, Second Dept 7-9-25

Same issue and result in Freeman v New York City Hous. Auth., 2025 NY Slip op 04086, 7-9-25 Second Dept

Practice Point: A defendant seeking to prove it did not have constructive notice of the condition which caused a slip and fall must prove the area of the fall was cleaned or inspected close in time to the fall. Proof of general cleaning practices will not suffice.

 

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