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IN THIS EJECTMENT ACTION, DEFENDANT-TENANT’S “FAILURE TO STATE A CAUSE OF ACTION,” “WAIVER,” “CONSTRUCTIVE EVICTION,” “BREACH OF COVENANT OF QUIET ENJOYMENT,” “IMPROPER NOTICE OF DEFAULT,” AND “TRESPASS” AFFIRMATIVE DEFENSES SHOULD NOT HAVE BEEN DISMISSED; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined several affirmative defenses in this ejectment action should not have been dismissed. Plaintiff landlord sought to eject defendant tenant from a parking lot for nonpayment of rent. Defendant alleged, and plaintiff acknowledged, plaintiff had rented certain parking spaces to a third party. The Second Department held: (1) no motion lies to dismiss a “failure to state a cause of action” defense because plaintiff cannot test the sufficiency of its own claim; (2) the “waiver” defense should not have been dismissed despite the “nonwaiver” provision in the lease; (3) the constructive eviction and breach of covenant of quiet enjoyment defenses were supported by plaintiff’s renting spaces to a third party; (4) the ‘improper notice of default” defense was supported by the plaintiff’s failure to provide the notice called for by the lease; and (5) the “trespass” defense was supported by the rental of spaces to a third party:

CPLR 3211(b) provides that “[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit.” “When moving to dismiss, the plaintiff bears the burden of demonstrating that the affirmative defenses ‘are without merit as a matter of law because they either do not apply under the factual circumstances of [the] case, or fail to state a defense'” … . “‘On a motion pursuant to CPLR 3211(b), the court should apply the same standard it applies to a motion to dismiss pursuant to CPLR 3211(a)(7), and the factual assertions of the defense will be accepted as true'” … . “‘Moreover, if there is any doubt as to the availability of a defense, it should not be dismissed'” … . Diversified Bldg. Co., LLC v Nader Enters., LLC, 2025 NY Slip Op 06047, Second Dept 11-5-25

Practice Point: Consult this decision for insight into the criteria for dismissal of an affirmative defense and the elements of “waiver,” “constructive eviction,” “breach of covenant of quiet enjoyment,” “Improper notice of default,” and “trespass” affirmative defenses as alleged by defendant-tenant in this ejectment action brough by plaintiff-landlord.

 

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ALTHOUGH CONTRACTING COVID-19 IS COMPENSABLE UNDER WORKERS’ COMPENSATION, HERE THE PROOF THAT CLAIMANT CONTRACTED COVID-19 BECAUSE OF WORKPLACE EXPOSURE WAS INSUFFICIENT (THIRD DEPT). ​

The Third Department, reversing the Workers’ Compensation Board, determined the record did not support the finding that claimant, a school custodian, contracted COVID-19 from workplace exposure. The decision is fact-specific. Claimant had little contact with students during his work hours and there were other possible sources of infection:

We acknowledge that “the contraction of COVID-19 in the workplace is compensable under the Workers’ Compensation Law” … , that the issue of whether a compensable accident has occurred is a question of fact for the Board to resolve and that the Board’s findings in this regard, if supported by substantial evidence, will not be disturbed … . Additionally, our case law makes clear that where, as here, the injured claimant alleges that he or she contracted COVID-19 at work, such claimant “bears the burden of demonstrating either a specific exposure to COVID-19 or that COVID-19 was so prevalent in the work environment as to present an elevated risk of exposure constituting an extraordinary event” … ; “for example, workers with significant contact with the public in communities with high rates of infection or workers in a workplace experiencing high rates of infection” … .

… Although claimant’s job included cleaning various areas of the school and picking up supplies, he acknowledged that his only contact with students would occur while he was mopping the hallways, at which time approximately 20 students would pass by him on their way to the locker rooms. During the relevant time frame, no other member of claimant’s household tested positive for COVID-19, but claimant’s then-spouse worked in-person and did the grocery shopping, her son attended sporting events three days each week and claimant attended church each week with approximately 40 other people. Claimant, who did not wear a mask during church services, testified that his fellow attendees “wouldn’t have been [sitting] that close” to one another. The record is silent as to the rate of infection in either the school where claimant worked or the surrounding community.

Upon reviewing the record as a whole, we cannot say that the Board’s decision is supported by substantial evidence. As a starting point, the record is devoid of proof that there was a high rate of infection present in claimant’s work environment at the relevant point in time … . Further, claimant’s brief encounters with a passing group of students in a corridor falls short of the degree of regular, consistent and close interaction with the public at large necessary to sustain a finding of prevalence … . Finally, the record reflects that either claimant or members of his household engaged in other in-person pursuits during the relevant time period. Under these circumstances, the Board’s finding that claimant’s employment exposed him to an elevated risk of exposure to COVID-19 cannot stand. Matter of Angelo (Southwestern Cent. Sch.), 2025 NY Slip Op 05998, Third Dept 10-30-25

Practice Point: Contracting COVID-19 is compensable under Workers’ Compensation but claimant must present proof exposure at the workplace was the source of the infection, not the case here.​

 

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THE DIVISION OF CRIMINAL JUSTICE SERVICES’ (DCJS’S) DETERMINATION THAT PETITIONER POLICE OFFICER WAS TERMINATED “FOR CAUSE” WAS CONTRADICTED BY THE FACTS; THE DETERMINATION WAS REVERSED AS “ARBITRARY AND CAPRICIOUS” (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Clark, held the Division of Criminal Justice Services’ (DCJS’s) determination that petitioner police officer was terminated “for cause,” in the face of a consent order and evidence demonstrating petitioner resigned, was arbitrary and capricious.  The opinion is fact-specific and cannot be fairly summarized here:​

In its brief on appeal, DCJS states that it “interprets this regulation as requiring a causal nexus between the allegations of misconduct and the officer’s subsequent separation from service.” Although that is a facially rational interpretation of the regulation, DCJS’ determination that that is what occurred here lacks a sound basis in reason and disregards the facts … . Indeed, during the review process, DCJS had before it a copy of the consent award, which clearly stated that petitioner would be reinstated in good standing upon serving his suspension. Although the Police Chief claimed that petitioner never returned to work after the suspension period was over, petitioner submitted documentary evidence demonstrating the inaccuracy of that representation. Moreover, DCJS knew that the Police Chief had characterized petitioner’s separation from employment as a “standard resignation” … and that the consent award did not contain any provision precluding petitioner from seeking employment with the Schenectady County Sheriff’s Department, thereby raising a question as to the sincerity of the Police Chief’s representation [to that effect], as well as his subsequent “for cause” report. In these circumstances, it should have been clear to DCJS that the misconduct allegations were fully resolved upon petitioner serving his suspension and, therefore, the Police Chief’s subsequent reporting that petitioner resigned “in connection with allegations of misconduct” was materially inaccurate. Matter of Ferretti v New York State Div. of Criminal Justice Servs., 2025 NY Slip Op 06000, Third Dept 10-30-25

Practice Point: Consult this opinion for insight into when an administrative agency’s determination will be found “arbitrary and capricious.” Here the agency relied on representations by a police chief which were contradicted by the facts.

 

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PETITIONER, A TRANSGENDER INDIVIDUAL, WAS ENTITLED, FOR PERSONAL SAFETY REASONS, TO THE SEALING OF THE RECORD OF HER NAME-CHANGE PROCEEDING (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner, a transgender individual, was entitled, for her personal safety, to the sealing of the record of her name-change proceeding:

We analyzed Civil Rights Law § 64-a in Matter of Cody VV. (Brandi VV.) (226 AD3d 24 [3d Dept 2024]). There, Supreme Court — the same justice — denied an applicant’s request to seal the record of the applicant’s name-change proceeding … . Reversing the court’s denial and ordering the applicant’s record sealed, we observed, in sum and substance, that the relevant statutory language reflects the Legislature’s determination that transgender individuals face threats to their personal safety that are real, constant and everywhere … . Thus, only in an “extraordinary” case will there be a “substantial basis” to find that an open court record of a name change proceeding would not place a transgender applicant’s safety at risk … .

In a “customary” case like this one, protecting the applicant from the threat of harm posed by an open court record of a name change proceeding necessarily takes priority over the public’s ability to access that court record … . To reverse those priorities is to intrude upon the policymaking authority of the Legislature. To deny a sealing request based upon those inverted priorities is to abuse the limited judicial discretion available under Civil Rights Law § 64-a. To decline to seal the record despite the applicant’s showing of jeopardy is to place the applicant at risk of the very harms the statute is meant to guard against … .

​… [P]etitioner affirmed her transgender status and that she was seeking to change her name to one that reflects her female gender identity, which is the name she uses in her personal and professional life. She expressed her fear that public access to her name change would disclose her transgender status and place her at increased risk of hate crimes, harassment and other discrimination. In view of the totality of circumstances … , petitioner has demonstrated that she is entitled to have the record of her name change proceeding sealed pursuant to Civil Rights Law § 64-a … . Matter of Kieran B., 2025 NY Slip Op 06006, Third Dept 10-30-25

Practice Point: In Civil Rights Law 64-a, the legislature recognized the personal safety issues raised when a transgender individual seeks a name-change. Therefore, sealing of the name-change record reflects the legislative intent and should be the general rule.

 

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THE WAS NO PROOF DEFENDANT VOLUNTARILY WAIVED HIS RIGHT TO BE PRESENT AT THE SORA RISK-LEVEL HEARING; ORDER REVERSED AND MATTER REMITTED FOR A NEW HEARING (SECOND DEPT).

The Second Department, reversing the SORA risk-level determination, held that the record did not establish that defendant waived his right to be present at the risk-level hearing:

“A sex offender facing risk level classification under SORA has a due process right to be present at the SORA hearing” (… see Correction Law § 168-n[3]). “To establish whether a defendant, by failing to appear at a SORA hearing, has waived the right to be present, evidence must be shown that the defendant was advised of the hearing date, of the right to be present at the hearing, and that the hearing would be conducted in his or her absence” … . “Before proceeding in the defendant’s absence, the court must make an inquiry and recite on the record the facts and reasons it relied upon in determining that the defendant’s absence was deliberate” (… see Correction Law § 168-n[6]). Here, defense counsel expressly stated that the defendant was not waiving his right to be present after he failed to appear for the SORA hearing, and there is no evidence in the record that the defendant was made aware of the consequences of failing to appear for the SORA hearing or that his absence … was deliberate.

Since the record fails to establish that the defendant voluntarily waived his right to be present at the SORA hearing, the order must be reversed and the matter remitted to the Supreme Court, Kings County, for a new risk level assessment hearing and a new determination thereafter, to be preceded by notice to the defendant in accordance with Correction Law § 168-n(3). People v Blount, 2025 NY Slip Op 05972, Second Dept 10-29-25

Practice Point: Consult this decision for insight into what must be placed on the record to explain a defendant’s absence from a SORA risk-level-assessment proceeding.

 

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THE REFEREE’S REPORT WAS BASED UPON BUSINESS RECORDS WHICH WERE NOT PRODUCED; PROOF OF DEFENDANT’S DEFAULT WAS BASED UPON BUSINESS RECORDS FOR WHICH NO FOUNDATION WAS LAID; THE MOTION TO CONFIRM THE REFEREE’S REPORT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because the report was based upon business records which were not produced. In addition defendant’s default was based upon records for which no foundation was laid:

“The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the record has clearly defined the issues and resolved matters of credibility” … . “However, computations based on the review of unidentified and unproduced business records . . . constitute[ ] inadmissible hearsay and lack[ ] probative value” … .

Here, the referee’s report was improperly premised upon unproduced business records.

… [P]laintiff’s submissions reflected that Chase was not the loan servicer at the time of the default, which allegedly occurred in 2008. Since Chase’s employee, Brunton, did not state that the records of any other relevant entity, such as a prior loan servicer or the plaintiff, were provided to Chase and incorporated into Chase’s own records, that Chase routinely relied upon such records in its business, or that he had personal knowledge of the business practices and procedures of any other relevant entity, Brunton failed to lay a proper foundation for the admission of any records reflecting the defendant’s alleged default in 2008 … . Citimortgage, Inc. v Hassanin, 2025 NY Slip Op 05935, Second Dept 10-29-25

Practice Point: Consult this decision for insight into the proof necessary to confirm a referee’s report in a foreclosure action, as well as the necessary foundation for business records created by a prior loan servicer.

 

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THE PROCESS SERVER KNEW WHERE DEFENDANT LIVED AND WORKED AND MADE SEVERAL UNSUCCESSFUL ATTEMPTS TO SERVE DEFENDANT AT HOME; WITHOUT MAKING ANY ATTEMPT TO SERVE DEFENDANT AT WORK, THE PROCESS SERVER RESORTED TO “NAIL AND MAIL;” THE PROCESS SERVER DID NOT DEMONTRATE “DUE DILIGENCE;” THE COURT NEVER ACQUIRED PERSONAL JURISDICTION OVER DEFENDANT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the process server did not demonstrate due diligence in attempting to serve defendant, therefore the court did not acquire personal jurisdiction:

“Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308” … . “Service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) and (2) cannot be made with due diligence” … . “The term due diligence is not defined by statute, and is interpreted on a case-by-case basis” … . To satisfy the “due diligence” requirement, the plaintiff must demonstrate that the process server made genuine inquiries about the defendant’s whereabouts and place of employment … . “The failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void” … .

… [T]he process server’s prior attempts at service did not demonstrate due diligence. Two out of three of the process server’s prior attempts at personal delivery at the defendant’s residence occurred during weekday hours when it could reasonably have been expected that the defendant was either working or in transit to or from work. The prior attempts were made on Thursday, April 17, 2008, at 6:15 p.m.; on Saturday, April 19, 2008, at 1:30 p.m.; and on Monday, April 21, 2008, at 8:20 a.m. The Saturday attempt occurred at a time when the defendant may have had reasons not to be home. The process server averred that a neighbor confirmed that the defendant resided at that address, but gave a negative reply when asked if the neighbor was aware of the defendant’s normal routine and place of business. Attached to the affidavit of service were the results of a “people at work” search, which revealed a company address for the defendant. Yet the process server made no inquiries about the defendant at that address before resorting to affix and mail service. Under the circumstances, the plaintiff failed to act with due diligence before relying on affix and mail service pursuant to CPLR 308(4) … . Bank of N.Y. Mellon v DeFilippo, 2025 NY Slip Op 05933, Second Dept 10-29-25

Practice Point: Consult this decision for insight into what constitutes “due diligence” in attempting to serve a defendant. Here several failed attempts at defendant’s residence was not enough. The process server did not attempt to serve defendant at work before resorting to “nail and mail.”​

 

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CONCLUSORY AND SPECULATIVE ALLEGATIONS WILL NOT SUPPORT PIERCING THE CORPORATE VEIL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs’ motion to amend the complaint to “pierce the corporate veil” should not have been granted: The allegations in the proposed amended complaint were “conclusory” rather than fact-based:

“‘Broadly speaking, the courts will disregard the corporate form, or, to use accepted terminology, “pierce the corporate veil,” whenever necessary “to prevent fraud or to achieve equity”‘” … . “‘Generally, a plaintiff seeking to pierce the corporate veil must show 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'” … . The mere contention that a corporation was completely dominated by its owners or conclusory assertions that a corporation acted as the owners’ “alter ego,” without more, will not suffice to support the equitable relief of piercing the corporate veil … . “Factors to be considered in determining whether the owner has ‘abused the privilege of doing business in the corporate form’ include whether there was a ‘failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, and use of corporate funds for personal use'” … . Moreover, even under the liberal standards of CPLR 3025(b), the proposed amended complaint must still sufficiently allege the material elements of the cause of action asserted … .

Here, the proposed amended complaint contains only conclusory allegations that the Berkovics [the principals of defendant corporation] breached a settlement agreement, thereby acting in bad faith and in furtherance of their own interests, and that the Berkovics exercised complete domination over the defendant in the transaction at issue and, in doing so, abused the privilege of doing business in the corporate form. The proposed amended complaint fails to assert that the Berkovics acted other than in their alleged capacity as the principals of the defendant or that they failed to respect the separate legal existence of the defendant. Thus, the proposed cause of action seeking to pierce the corporate veil was palpably insufficient and patently devoid of merit as it was speculative and conclusory … . Anderson v ML Real Estate Holdings, LLC, 2025 NY Slip Op 05931, Second Dept 10-29-25

Practice Point: Consult this decision for insight in the the nature of the allegations required to “pierce to corporate” veil. The allegations must be fact-based. Conclusory or speculative allegations will not suffice.

 

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DEFENDANT DID NOT ADMIT HE INTENDED TO COMMIT A CRIME IN THE BUILDING HE ENTERED AND REMAINED UNLAWFULLY; THEREFORE THE PLEA ALLOCUTION DID NOT ESTABLISH THE ELEMENTS OF ATTEMPTED BURGLARY; DEFENDANT’S VIOLATION OF A STAY-AWAY ORDER IS NOT ENOUGH; PLEA VACATED (FIRST DEPT).

The First Department, vacating defendant’s plea to attempted burglary, determined defendant’s plea allocution negated an essential element of the offense, thereby calling into question the voluntariness of the plea: Burglary requires the intent to commit a crime while unlawfully entering or remaining in a building. Defendant did not admit he intended to commit a crime in the building. The fact that he violated a stay-away order by entering the building was not sufficient:

During the plea allocution the court asked defendant if it was true that he knowingly entered and remained unlawfully at the premises, which is a dwelling, and attempted to commit a crime inside. Defendant responded, “That wasn’t my intent, but I did remain unlawfully.” Defense counsel then stated “Yes, there was a protective order which he violated.” The court then asked defendant, “That was with the intent to violate the order of protection, is that right”? Defendant responded, “Yes.”

A key element of burglary is establishing the defendant’s intent in entering or remaining unlawfully in a building to commit a crime therein … . The violation of a stay-away provision in an order of protection, alone, cannot, without more, be used to establish the requisite state of mind to elevate criminal trespass to a burglary … .

Once defendant denied his intent to commit a crime within the premises, the court was required to inquire further to ensure that defendant’s guilty plea was, in fact, knowing and voluntary … . As the People concede, given that the court failed to inquire and improperly accepted the guilty plea, the plea must be vacated … . People v Gee, 2025 NY Slip Op 05924, First Dept 10-28-25

Practice Point: To constitute burglary, the defendant must intend to commit a crime when entering or remaining in a building. It is not enough that, by entering the building, the defendant violated a stay-away order. The defendant must have intended to commit a crime in the building.

 

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PLAINTIFF FELL WHEN A TEMPORARY SCAFFOLD HE HAD BUILT COLLAPSED; DEFENDANTS ARGUED PLAINTIFF DID NOT FOLLOW INSTRUCTIONS ON HOW TO PROPERLY BUILD THE SCAFFOLD; THE RECALCITRANT-WORKER DEFENSE DID NOT APPLY BECAUSE PLAINTIFF WAS NEVER PROVIDED WITH AN ADEQUATE SAFETY DEVICE AND PLAINTIFF’S ALLEGED COMPARATIVE NEGLIGENCE WILL NOT DEFEAT A LABOR LAW 240(1) SUMMARY JUDGMENT MOTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s summary judgment motion on the Labor Law 240(1) cause of action should have been granted. Defendant raised the recalcitrant worker defense which the First Department found inapplicable. Plaintiff was standing on a scaffold when it collapsed. Defendant argued plaintiff disregarded instructions on how to construct the scaffold, a comparative-negligence argument which  will not defeat a summary judgment motion:

[Defendants’] reliance on the recalcitrant worker defense was misplaced because that defense requires a showing that plaintiff refused to use a safety device that was provided to him … . Defendants’ allegations that plaintiff disregarded instructions on how to properly build the scaffolding, built the scaffolding incorrectly, selected defective wood for its construction, and failed to have the scaffold inspected before its use, are insufficient to establish that plaintiff was a recalcitrant worker … . Indeed, defendants failed to demonstrate whether the scaffolding, if properly constructed, constituted adequate protection under Labor Law § 240(1). Thus, the recalcitrant worker defense “has no application where, as here, no adequate safety devices were provided” … , and any conduct on plaintiff’s part would go to comparative negligence, which is not a defense to a plaintiff’s Labor Law § 240(1) claim … . Peralta v Hunter Roberts Constr. Group LLC, 2025 NY Slip Op 05928, First Dept 10-28-25

Practice Point: The recalcitrant-worker defense only applies if plaintiff was provided with an adequate safety device and refuses to use it, not the case here.

 

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