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DEFENDANT WAS NOT UNDULY PREJUDICED BY CODEFENDANT’S ATTORNEY’S SUMMATION-ARGUMENT THAT DEFENDANT WAS A SHOOTER AND THE CODEFENDANT WAS NOT; THE TRIAL EVIDENCE DID NOT POINT TO THAT CONCLUSION AND THE JURY WAS INSTRUCTED THAT SUMMATIONS ARE NOT EVIDENCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, affirming the Fourth Department, determined that the trial judge properly denied the defendant’s motion to sever the trials of the codefendants. The charges stemmed from a drive-by shooting in which two guns were fired. The trial evidence did not demonstrate defendant’s lack of involvement. In summation the codefendant’s attorney argued defendant was one of the shooters and the codefendant was not:

Where counsel for a codefendant essentially functioned as “a second prosecutor” and elicited damaging evidence against the defendant, we have held that severance was required based on the “compelling prejudice” to the defendant … . No similar degree of prejudice was created by codefendant’s closing argument here.

… [D]efendant raised the specter of a potential irreconcilable conflict between the defenses prior to trial, but apart from the comments made in summation, the defenses were remarkably consistent in their primary focus on discrediting the eyewitness. Although Bordies’ [the codefendant’s] argument that the evidence supported the conclusion that defendant was guilty was diametrically opposed to defendant’s claim of innocence, this type of discord emerging between codefendants only in summation did not rise to the level of an irreconcilable conflict for purposes of severance in these particular circumstances.

Moreover, the trial court properly instructed the jury that the attorneys’ arguments were not evidence and should not be considered as evidence when they judged the facts. That being so, and given that the jury is presumed to have followed the court’s instructions … , any conflict raised solely by counsel’s arguments could not have formed the basis of the jury’s verdict. In sum, there was no “undue” prejudice to defendant. People v Everson, 2025 NY Slip Op 05738, CtApp 10-16-25

Practice Point: Consult this opinion for insight into when the severance of codefendants’ trials is required and when it is not.

 

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THE ELEVEN YEAR ELECTION LAW (EYEL), WHICH MANDATES EVEN-YEAR COUNTY ELECTIONS, DOES NOT VIOLATE THE MUNICIPAL HOME RULE PROVISIONS OF THE NEW YORK STATE CONSTITUTION; THE CHALLENGE BY COUNTIES WITH CHARTER PROVISIONS MANDATING ODD-YEAR ELECTIONS WAS REJECTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the state had the authority to pass the Even Year Election Law (EYEL) which mandates even-year local elections. Several counties with charters setting odd-year elections challenged the EYEL as violating the home rule provisions of article IX of the State Constitution:

The Municipal Home Rule Law was enacted contingent on the passage of the current form of article IX to “provide for carrying into effect provisions of article nine of the constitution . . . and to enable local governments to adopt and amend local laws for the purpose of fully and completely exercising the powers granted to them under the terms and spirit of such article” (see Municipal Home Rule Law §§ 50, 59). As relevant here, Municipal Home Rule Law § 33 (3) (b) requires that county charters must “provide for . . . the manner of election or appointment” and “terms of office” for “agencies or officers responsible for the performance of the functions, powers and duties of the county,” while Municipal Home Rule Law § 34 (3) contains a list of topics that a county charter cannot address in a manner inconsistent with enacted state legislation. * * *

Nothing in article IX limits, expressly or by implication, the otherwise plenary authority of the legislature to mandate the timing of certain elections, as the EYEL does … . Consequently, without any such constitutional limitation, the EYEL is a proper exercise of that authority. County of Onondaga v State of New York, 2025 NY Slip Op 05737, CtApp 10-16-25

 

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A JUDGE CANNOT ORDER DISCOVERY IN A FOREIGN JURISDICTION WHICH IS A SIGNATORY TO THE HAGUE CONVENTION WITHOUT COMPLYING WITH THE REQUIREMENTS OF THE CONVENTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge should not have ordered discovery of a nonparty’s electronic devices in a foreign jurisdiction without complying with the Hague Convention. The nonparty, de Putron, resides in the island country of Jersey in the United Kingdom:

… Supreme Court improperly directed the discovery of de Putron’s electronic devices. First, “when discovery is sought from a nonparty in a foreign jurisdiction [that is a signatory to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters … , application of the . . . Convention . . . is virtually compulsory” … . An order directing discovery of such a party without complying with the Hague Convention is therefore an “improper assertion of power beyond the . . . Court’s jurisdiction” … . As it is undisputed that de Putron is a nonparty in a foreign jurisdiction that is a signatory to the Hague Convention, Supreme Court lacked the power to direct discovery of his electronic devices without complying with the Hague Convention. Dorilton Capital Mgt. LLC v Stilus LLC, 2025 NY Slip Op 05744, First Dept 10-16-25

Practice Point: Here discovery of a foreign nonparty’s electronic devices was improperly ordered by the judge. The country in which the nonparty resided was a signatory to the Hague Convention. Compliance with the Convention is a prerequisite to any discovery order.

 

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APPELLANT WAS SLOWING DOWN APPROACHING PLAINTIFF’S VEHICLE WHICH WAS STOPPED WHEN APPELLANT WAS STRUCK FROM BEHIND AND PUSHED INTO PLAINTIFF’S VEHICLE; APPELLANT WAS ENTITLED TO SUMMARY JUDGMENT DISMISSING THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined appellant was entitled to summary judgment in this rear-end collision case. Appellant was slowing down approaching plaintiff’s car in front, which was stopped, when appellant was struck from behind and pushed into plaintiff:

“A ‘defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident'” … . “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, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence” … . “‘Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation for the collision'” … . The operator of the middle vehicle in a three-vehicle chain-collision accident may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was stopped or safely slowing down to a stop behind the lead vehicle when it was struck from behind by the rear vehicle and propelled into the lead vehicle … .

Here, the appellant submitted evidence that demonstrated that his vehicle was struck in the rear by the respondents’ vehicle while his foot was on the brake and he was in the process of slowing down. Since the appellant was in the process of safely slowing down to a stop behind the plaintiffs’ vehicle, which was at a stop, when his vehicle was struck from behind, he established his prima facie entitlement to judgment as a matter of law … . Sherman v Edwards, 2025 NY Slip Op 05713, Second Dept 10-15-25

Practice Point: When a driver is in the process of braking approaching a stopped vehicle and is struck from behind and pushed into the stopped vehicle, the driver is not negligent.

 

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THE ADMINSTRATOR’S SIX-YEAR DELAYING IN SEEKING SUBSTITUTION FOR THE DECEASED PLAINTFF, COUPLED WITH THE PREJUDICE TO THE DEFENDANT IN THIS PERSONAL INJURY CASE, WARRANTED DISMISSAL OF THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the administrator’s six-year delay in substituting the estate for the deceased in this personal injury case, warranted dismissal of the complaint:

“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made” … . CPLR 1021 provides that “[a] motion for substitution may be made by the successors or representatives of a party or by any party” … and requires that such substitution “be made within a reasonable time” …. If substitution is not made within a reasonable time, “the action may be dismissed as to the party for whom substitution should have been made” (CPLR 1021). “[T]he determination of whether the timing is reasonable requires consideration of several factors, including the diligence of the party seeking substitution, the prejudice to the other parties, and whether the party to be substituted has shown that the action or the defense has potential merit” … .

Here, the administrator’s protracted delay of almost six years in obtaining limited letters of administration so as to be substituted in this action, for which he provided no explanation in his initial motion papers and only an unsubstantiated, partial explanation in his reply attorney affirmation, demonstrated a lack of diligence. Furthermore, in this 16-year-old personal injury action, in which the deposition of the bus driver was never obtained, the administrator failed to rebut the defendants’ showing of prejudice arising both from the passage of time and the unavailability of the bus driver. Finally, the administrator did not submit in support of his motion the complaint, a bill of particulars, deposition transcripts, or any proof at all as to the potential merit of the cause of action. Under these circumstances, the Supreme Court improvidently exercised its discretion in granting the administrator’s motion and, in effect, denying the defendants’ application to dismiss the complaint for failure to timely seek substitution ..Watson v New York City Tr. Auth., 2025 NY Slip Op 05718, Second Dept 10-15-25

Practice Point: Here an administrator’s six-year delay in seeking substitution for the deceased plaintiff, coupled with prejudice to the defendant, warranted dismissal of the personal injury complaint.

 

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APPELLANT WAS SLOWING DOWN APPROACHING PLAINTIFF’S VEHICLE WHICH WAS STOPPED WHEN APPELLANT WAS STRUCK FROM BEHIND AND PUSHED INTO PLAINTIFF’S VEHICLE; APPELLANT WAS ENTITLED TO SUMMARY JUDGMENT DISMISSING THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this rear-end collision case. Appellant was slowing down approach plaintiff’s car in front, which was stopped, when appellant was struck from behind and pushed into plaintiff. Appellant was entitled to summary judgment:

“A ‘defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident'” … . “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, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence” … . “‘Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation for the collision'” … . The operator of the middle vehicle in a three-vehicle chain-collision accident may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was stopped or safely slowing down to a stop behind the lead vehicle when it was struck from behind by the rear vehicle and propelled into the lead vehicle … .

Here, the appellant submitted evidence that demonstrated that his vehicle was struck in the rear by the respondents’ vehicle while his foot was on the brake and he was in the process of slowing down. Since the appellant was in the process of safely slowing down to a stop behind the plaintiffs’ vehicle, which was at a stop, when his vehicle was struck from behind, he established his prima facie entitlement to judgment as a matter of law … . Sherman v Edwards, 2025 NY Slip Op 05713, Second Dept 10-15-25

Practice Point: When a driver is in the process of braking approaching a stopped vehicle and is struck from behind and pushed into the stopped vehicle, the driver is not negligent.

 

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DEFENDANT DEFAULTED IN THIS CHILD VICTIMS ACT CASE ALLEGING HE SEXUALLY ABUSED PLAINTIFF; DEFENDANT SHOULD NOT HAVE BEEN ALLOWED TO DENY THE ABUSE IN THE DAMAGES TRIAL; NEW DAMAGES TRIAL ORDERED (SECOND DEPT). ​

The Second Department, ordering a new trial on damages, determined defendant, who had defaulted in this Child Victims Act case alleging sexual abuse of the plaintiff by the defendant, should not have been allowed to deny the abuse in the damages trial:

…Supreme Court erred in permitting the defendant to testify that the plaintiff’s allegations of sexual abuse were untrue and that he had never sexually abused the plaintiff. The testimony violated the court’s pretrial order expressly prohibiting such testimony. Moreover, a defaulting defendant “admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages” … . “Accordingly, at a trial to determine the amount of a plaintiff’s real damages, the defendant will not be allowed to introduce evidence tending to defeat the plaintiff’s cause of action” … . The defendant’s testimony denying the basic allegation of liability prejudiced a substantial right of the plaintiff, as that issue had been decided in her favor, and possibly affected the jury’s verdict on the issue of damages. Accordingly, the court should have granted the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages in the interest of justice and for a new trial on the issue of damages … . Reilly v Grieco, 2025 NY Slip Op 05711, Second Dept 10-15-25

Practice Point: Here defendant defaulted in this Child Victims Act case but was allowed to deny the abuse in the damages trial. That was error requiring an new trial on damages.

 

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ONE OF THE THREE DEFENDANTS, THE OWNER OF THE OTHER TWO, WAS NOT SHOWN TO BE LIABLE UNDER THE LABOR LAW; THEREFORE THE $10,000,000 PUNITIVE-DAMAGES JUDGMENT AGAINST THE OWNER SHOULD NOT HAVE BEEN AWARDED; NEW YORK DOES NOT RECOGNIZE AN INDEPENDENT CAUSE OF ACTION FOR PUNITIVE DAMAGES (SECOND DEPT).

The Second Department, reversing the $10,000,000 judgment for punitive damages in this Labor Law 220, 240(1) and 241(6) action, noted that New York does not recognize an independent cause of action for punitive damages. Summary judgment was granted against two defendants. but was denied with respect to Berger, the owner of the other two defendants. The jury was instructed to decide whether to award punitive damages based on Berger’s conduct and did so:

The plaintiff and his wife …, with leave of court, served an amended complaint to add a claim for punitive damages. The defendants answered the amended complaint, and the matter proceeded to a trial limited to the issue of damages. After both parties rested, the jury was instructed to decide whether to award punitive damages based upon conduct of Berger. The jury awarded the plaintiff and his wife punitive damages in the sum of $10,000,000, and the Supreme Court entered a judgment … in favor of the plaintiff and his wife and against the defendants … in the principal sum of $10,000,000 for punitive damages. The defendants appeal from that portion of the judgment.

“New York does not recognize an independent cause of action for punitive damages. Instead, ‘[a] demand or request for punitive damages is parasitic and possesses no viability absent its attachment to a substantive cause of action'” … . Here, the Supreme Court erroneously instructed the jury that the issue of Berger’s liability had already been determined against him, and the jury was not asked to consider Berger’s liability under the Labor Law or otherwise. Because Berger was never determined to be liable with respect to any substantive cause of action, no punitive damages could be awarded based upon his alleged conduct … . Petrosian v B & A Warehousing, Inc., 2025 NY Slip Op 05708, Second Dept 10-15-25

Practice Point: Here plaintiffs were awarded a $10,000,000 punitive-damages judgment against a defendant who was not determined to have been liable. New York does not recognize an independent cause of action for punitive damages. The punitive-damages judgment was therefore reversed.

 

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THERE IS A QUESTION OF FACT WHETHER THE SCHOOL DISTRICT HAD CONSTRUCTIVE NOTICE OF THE ALLEGED SEXUAL ABUSE OF PLAINTIFF-STUDENT IN THIS CHILD VICTIMS ACT CASE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendants in this Child Victims Act case against the school district for negligent hiring, retention and supervision did not demonstrate a lack of constructive notice of the alleged sexual abuse of plaintiff-student by a custodian. Therefore the defendant’s motion for summary judgment should not have been granted:

“To establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, it must be shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … .

Here, the defendants’ evidence included testimony given by the plaintiff during his deposition that he was abused on dozens of occasions over three to four years, that there were several other students who were similarly abused, and that other custodians employed by the District were present in the school building after hours and on weekends and saw the plaintiff alone with the custodian in the building. Thus, contrary to the defendants’ contention, they failed to establish, prima facie, that the District lacked constructive notice of the custodian’s alleged abusive propensities and conduct … . PC-14 Doe v Lawrence Union Free Sch. Dist., 2025 NY Slip Op 05693, Second Dept 10-15-25

Practice Point: Consult this decision for insight into how a question of fact is raised about a school-defendant’s constructive notice of sexual abuse of a student by a school employee.

 

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AT TRIAL IN THIS FORECLOSURE ACTION, PLAINTFF FAILED TO PROVE STANDING TO FORECLOSE AND FAILED TO PROVE COMPLIANCE WITH THE NOTICE-OF-FORECLOSURE MAILING REQUIREMENTS OF RPAPL 1304; COMPLAINT DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court and dismissing the foreclosure complaint, determined the plaintiff did not demonstrate standing to foreclose and did not demonstrate compliance with the notice-of-foreclosure mailing requirements of RPAPL 1304:

… [S]ince the witness on the issue of standing proffered by the plaintiff at the trial testified, among other things, that the purported allonges that were with the original note were not stapled to the note, and further testified that he did not know when the allonges were executed or attached to the note, the plaintiff failed to establish its standing as the holder of the original note at the time of the commencement of the action. * * *

… [P]laintiff’s witness on the issue of notice did not have knowledge of the mailing practices of the entity which, according to the plaintiff, sent the requisite 30-day and 90-day notices … . Moreover, the business records that were submitted in evidence failed to show that the requisite certified and first-class mailings of the RPAPL 1304 notices or the default notices were actually made to the defendants or that the default notices were actually delivered to their notice address. Thus, the plaintiff failed to demonstrate its strict compliance with RPAPL 1304 and failed to show that the default notices were sent in accordance with the terms of the mortgage agreement … . Onewest Bank FSB v Thomas, 2025 NY Slip Op 05692, Second Dept 10-15-25

Practice Point: If a foreclosure action goes to trial and standing is contested, the bank must prove it has standing to foreclose. In addition, the bank must prove compliance with the notice-of-foreclosure mailing requirements of RPAPL 1304. Here the failure of proof on those issues resulted in dismissal of the complaint.​

 

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