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PLAINTIFF STATED A CAUSE OF ACTION FOR DEFAMATION PER SE (DEFENDANT ALLEGEDLY STATED PLAINTIFF ENGAGED IN MONEY LAUNDERING); ALTHOUGH DEFENDANT DEMONSTRATED THE ACTION INVOLVED “PUBLIC PETITION AND PARTICIPATION” WITHIN THE MEANING OF THE SLAPP STATUTE, PLAINTIFF DEMONSTRATED THE DEFAMATION ACTION HAD A SUBSTANTIAL BASIS IN LAW; THEREFORE THE SLAPP STATUTE SHOULD NOT HAVE BEEN APPLIED TO DISMISS THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff had stated a cause of action for defamation and defendant was not entitled to dismissal of the complaint pursuant to the SLAPP statute (strategic lawsuit against public participation—Civil Rights Law section 70-a(1)(a)). Plaintiff operated a marina under a 60-year lease from the National Park Service, a US governmental agency. Defendant allegedly told plaintiff’s customer that plaintiff was engaged in money-laundering:

… [D]efendant satisfied his initial burden of establishing that this action is an action involving public petition and participation, since it involves a claim based upon “lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest” (id. § 76-a[1][a][2]).  * * * … [T]he defendant established that the causes of action were asserted in connection with an issue of public interest, as the defendant allegedly accused an entity operating with the authority of a governmental agency of criminal conduct … .

Since the defendant established that this action constitutes an action involving public petition and participation, the burden shifted to the plaintiff to demonstrate that the causes of action had a substantial basis in law … .

… [T]he defendant’s alleged statement that the plaintiff “is engaged in money laundering” did not constitute pure nonactionable opinion … . * * * …[T]he complaint alleged that the defendant acted with “actual malice” or reckless disregard as to whether the statements were true or false … . … [T]he complaint was not required to allege special damages, since it asserted a cause of action alleging defamation per se based upon allegations that the defendant made statements charging the plaintiff with a serious crime or tending to injure it in its trade, business, or profession … . Thus, the plaintiff established that the cause of action alleging defamation per se had a substantial basis in law … . Moonbeam Gateway Mar., LLC v Tai Chan, 2025 NY Slip Op 03802, Second Dept 6-25-25

Practice Point: The motion court dismissed the defamation action on the ground it was precluded by the SLAPP statute. However the Second Department held that plaintiff had demonstrated the defamation action had a substantial basis in law. Therefore defendant did not demonstrate entitlement to dismissal under the SLAPP statute.

 

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IN THIS CLASS-ACTION-CERTIFICATION PROCEEDING ALLEGING FAILURE TO PROVIDE NOTICE OF PAY RATE AND PAY DAY AS REQUIRED BY LABOR LAW SECTION 195(1), THE COURT SHOULD NOT HAVE GRANTED CERTIFICATION FOR THE CLAIM FOR LIQUIDATED DAMAGES AND SHOULD NOT HAVE GRANTED THE REQUEST FOR THE SOCIAL SECURITY NUMBERS OF CLASS MEMBERS WHOSE CLASS-ACTION NOTICE WAS RETURNED AS UNDELIVERABLE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court in this class-action-certification proceeding concerning wage notice violations, noted that CPLR 901(b) prohibits class actions seeking liquidated damages and the request for social security numbers for class members whose notice was returned as undeliverable should not have been granted:

… [T]he court should not have granted class certification for the wage notice claims, which are based on the alleged failure to provide a notice of pay rate and pay day as required by Labor Law § 195(1), and seek liquidated damages, plus reasonable attorneys’ fees and costs under Labor Law § 198(1-b). Where, as here, defendant pleaded a Labor Law § 198 statutory affirmative defense to the wage notice claim, the court should have declined to grant certification by applying the CPLR 901(b) prohibition against class actions seeking liquidated damages … .

To the extent the court ordered defendants to provide the names, addresses, phone numbers, and email addresses of all class members, as well as social security numbers for all class members whose notice is returned as undeliverable without a forwarding address, the order is modified to deny the request for social security numbers. The court otherwise properly granted the request for phone numbers and e-mail addresses, which is a reasonable request to expedite class notification. Idahosa v MFM Contr. Corp., 2025 NY Slip Op 03762, First Sept 6-24-25

Practice Point: Where class-action notices are returned as undeliverable, the request for phone numbers and e-mail addresses is properly granted to expedite class notification, but the request for social security numbers should not be granted.

 

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A POLICE OFFICER DESCRIBED STATEMENTS MADE BY THE VICTIMS BUT THE VICTIMS DID NOT TESTIFY; ALTHOUGH DEFENSE COUNSEL MENTIONED THE LACK OF CROSS-EXAMINATION IN A SUFFICIENCY-OF-EVIDENCE ARGUMENT, THE CONSTITUTIONAL RIGHT TO CONFRONT WITNESSES WAS NOT SPECIFICALLY RAISED; THEREFORE THE CONSTITUTIONAL ISSUE WAS NOT PRESERVED FOR APPEAL; THERE WAS AN EXTENSIVE THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, affirming defendant’s conviction, over a three-judge dissent, determined the constitutional “confrontation” issue first raised on appeal had not been preserved. A police officer testified about the identities and physical descriptions of the assailants provided by one of the victims while she was being treated in an ambulance. The victims were expected to testify but never did:

Defendant’s motion at the close of the People’s case did not invoke the Confrontation Clause and the colloquy that took place between defense counsel and the court makes clear that the motion to dismiss was neither intended nor understood to raise a constitutional issue.  Moreover, counsel did not invoke or rely on any caselaw dealing with constitutional protections. Instead, counsel made evidentiary arguments regarding the persuasive quality of the prosecution’s proof and, when asked by the court, confirmed that the motion was limited to the sufficiency of the evidence. Further, the timing of defendant’s motion at the close of the People’s case—which defense counsel specifically referred to as “a trial order of dismissal” …—suggests that defendant’s aim was not to challenge testimony of the victim’s statements as violative of his right to confrontation, but simply as failing to meet the evidentiary bar for a prima facie case … . Additionally, counsel repeatedly told the court that his motion was “focus[ed]” on the third-degree robbery charge, demonstrating that the argument was a legal insufficiency one, rather than a Confrontation Clause challenge, which would necessarily apply to all charges with equal force. Contrary to defendant’s argument, the mere reference to a lack of cross-examination was insufficient to alert the court that defendant was making a constitutional argument … . People v Bacon, 2025 NY Slip Op 03692, CtApp 6-18-25

Practice Point: Here the violation of defendant’s constitutional right to confront the witnesses against him was a viable issue because statements made by two witness were described by a police officer but the witnesses did not testify. Although defense counsel mentioned the inability to cross-examine the witnesses in a “sufficiency-of-evidence” argument before the trial court, the constitutional confrontation argument was not specifically raised. The majority, over an extensive three-judge dissent, determined the constitutional issue was not preserved for appeal.

 

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IN THIS LADDER-FALL CASE, CONFLICTING EVIDENCE ABOUT WHETHER A LADDER WAS REQUIRED FOR PLAINTIFF’S WORK MANDATED DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; RE: THE LABOR LAW 241(6) CAUSE OF ACTION, DEFENDANT-OWNER HAD A NONDELEGABLE DUTY TO ENSURE COMPLIANCE WITH THE LADDER-SAFETY PROVISIONS OF THE INDUSTRIAL CODE, THE OWNER’S LABOR LAW 241(6) LIABILITY IS NOT BASED UPON CONTROL OF THE WORK SITE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact precluding the award of summary judgment to the defendants on the Labor Law 240(1) cause of action in this ladder fall case. There was conflicting evidence whether a ladder was required for the work assigned to plaintiff. In addition, the Labor Law 241(6) cause of action should not have been dismissed on the ground the defendant owner did not exercise control over the worksite because the owner has a nondelegable duty to ensure compliance with the Industrial Code:

Where, as here, “credible evidence reveals differing versions of the accident,” one under which the defendant would be liable and another under which it would not, questions of fact exist making summary judgment inappropriate … . Accordingly, the court should have denied that branch of the defendant’s cross-motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1), regardless of the sufficiency of the plaintiffs’ opposition … .

Labor Law § 241(6) imposes a nondelegable duty on “owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor” … . Because an owner’s duty under Labor Law § 241(6) is nondelegable, the Supreme Court incorrectly concluded that the defendant was entitled to summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) on the ground that the record was “devoid of any information” that the defendant had “control over the worksite” … . …

12 NYCRR 23-1.21(b)(3)(iv), which requires that ladders “be maintained in good condition” and must not be used if they have “any flaw or defect of material that may cause ladder failure,” is sufficiently specific to support a cause of action under Labor Law § 241(6) …. . Contrary to its contention, the defendant failed to demonstrate, prima facie, that it did not violate this provision. … [Plaintiff] testified that the ladder shook beneath him, and the defendant did not submit evidence of the condition of the specific ladder at issue or the surface on which the ladder was situated … . Under these circumstances, the defendant also failed to demonstrate, prima facie, that it did not violate 12 NYCRR 23-1.21(b)(4)(ii), which provides that “[a]ll ladder footings shall be firm,” and “[s]lippery surfaces and insecure object … . Cabrera v Provident Alpine Partners, L.P., 2025 NY Slip Op 03700,, Second Dept 6-18-25

Practice Point: Here in this ladder-fall case, conflicting evidence about whether a ladder was required for plaintiff’s work mandated denial of defendants’ motion for summary judgment on the Labor Law 240(1) cause of action.

Practice Point: An owner’s liability under Labor Law 241(6) is based on a nondelegable duty, not on whether the owner controls the work site.

 

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THE CITY OF KINGSTON PROPERLY OPTED IN TO A RENT STABILIZATION REGIME PURSUANT TO THE HOUSING STABILITY AND TENANT PROTECTION ACT (HSTPA), PROPERLY DECLARED A HOUSING EMERGENCY, AND PROPERLY PROMULGATED RELATED GUIDELINES (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, determined the City of Kingston properly opted in to a rent stabilization regime pursuant to the Housing Stability and Tenant Protection Act (HSTPA) and properly declared a housing emergency. Petitioners, a group of private landlords and an association representing landlords in the Hudson Valley, unsuccessfuly sought to invalidate Kingston’s Emergency Tenant Protection Act (ETPA) opt-in and two guidelines subsequently promulgated by the Kingston New York Rent Guidelines Board (KRGB). The opinion is too detailed to fairly summarize here:

To enter into the ETPA’s rent-stabilization regime, a municipality’s “local legislative body” must make “[a] declaration of emergency” as to all or any class of housing accommodations within the municipality. It may do so only if the vacancy rate for those housing accommodations “is not in excess of five percent” … . Once the municipality makes such a declaration, it must recommend members to be appointed to a newly formed rent guidelines board by the State Division of Housing and Community Renewal’s (DHCR) commissioner … . Matter of Hudson Val. Prop. Owners Assn. Inc. v City of Kingston, 2025 NY Slip Op 03691, CtApp 6-18-25

 

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THE AMOUNT OF DAMAGES FOR PAST PAIN AND SUFFERING SHOULD BE BASED UPON THE EVIDENCE; THE AWARD SHOULD NOT HAVE BEEN LIMITED TO THE AMOUNT IN THE AD DAMNUM CLAUSE (SECOND DEPT).

The Second Department, reversing the Court of Claims and remitting the matter for a new determination of damages for past pain and suffering. The Court of Claims interpreted the ad damnum clause which read “!0.000.000” to mean $10,000 and awarded that amount. The Second Department noted that the amount of damages should be based on the evidence, not on the ad damnum clause:​

… [A]lthough the Court of Claims found that the claimant’s evidence could support a “substantial recovery for past and future pain and suffering,” it limited the award of damages to $10,000 based on its interpretation of the ad damnum clause. The court should have granted “any type of relief within its jurisdiction appropriate to the proof whether or not demanded” (CPLR 3017[a] …). Although the trier of fact’s “determination is entitled to great deference, it may be set aside if the award deviates materially from what would be reasonable compensation” … . An award of $10,000 deviates materially from awards for similar injuries … . Consequently, the court should have awarded an amount for past pain and suffering that was supported by the evidence submitted by the claimant … . Bonneau v State of New York, 2025 NY Slip Op 03699, Second Dept 6-18-25

Practice Point: The damages awarded for past pain and suffering should be based on the evidence. The award is not limited to the amount in the ad damnum clause of the claim.​

 

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THE DOCUMENTS RELIED UPON BY RETIRED NEW YORK CITY EMPLOYEES TO PROVE THE CITY PROMISED TO PROVIDE THEM WITH MEDICARE SUPPLEMENTAL INSURANCE COVERAGE FOR LIFE DID NOT DEMONSTRATE A CLEAR AND UNAMBIGUOUS PROMISE; THEREFORE THE RETIREES WERE NOT ENTITLED TO JUDGMENT ON THEIR PROMISSORY ESTOPPEL CAUSE OF ACTION (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Troutman, determined the petitioners were not entitled to judgment on the promissory estoppel cause of action. Petitioners are retired New York City employees who argued the city had promised to provide them with Medicare supplemental insurance coverage for life. In 2021 the city made significant changes to its health benefits program, discontinuing its most popular program, Senior Care, and most other options, and enrolling retirees in a Medicare Advantage Plan (MAP) managed by Aetna Life Insurance Company:

To support the allegation of a clear and unambiguous promise of Medicare supplemental insurance coverage for life, petitioners submitted copies of Summary Program Descriptions (SPDs) that the City provides its employees and retirees on an annual basis to inform them of their health insurance options. * * *

The SPDs themselves contain nothing that could be construed as a clear and unambiguous promise of Medicare supplemental insurance coverage for life. To the contrary, we agree with the City that the language in the SPDs is descriptive and for informational purposes only. The language on which petitioners rely—”becomes eligible,” “is provided,” “provides,” and “supplements”—is in the present tense. The descriptive nature of the SPD is reflected in the title of the document—Summary Program Description—and its informational nature is also clear from the context of the SPD, the purpose of which is to explain benefits for the upcoming year. Indeed, annual SPDs are necessary only because benefits change from year to year, a fact petitioners do not contest. Petitioners rely heavily on the phrase “and thereafter” in the SPDs as conclusive evidence of a continuing promise, but read in context this language is used only to explain when someone is eligible for Medicare and not in reference to any promise of future benefits. To the extent that one might infer a commitment of sorts from the SPDs’ language, it does not rise to the level of a clear and unambiguous promise that the City would pay for Medigap coverage, as opposed to some other form of health insurance coverage, for the rest of every retiree’s life. Matter of Bentkowski v City of New York, 2025 NY Slip Op 03690, CtApp 6-18-25

Practice Point: Consult this opinion for insight into the proof requirements for a “clear and unambiguous promise,” in the context of promissory estoppel.

 

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THE REGULATIONS WHICH ALLOW THE COMMISSIONER OF EDUCATION TO DETERMINE WHETHER A NONPUBLIC SCHOOL OFFERS EDUCATION SUBSTANTIALLY EQUIVALENT TO THAT OFFERED BY LOCAL PUBLIC SCHOOLS WERE PROPERLY PROMULGATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the regulations which allow the Commissioner of Education to enforce the requirement that nonpublic schools provide an education “substantially equivalent” to that provided by local public schools were properly promulgated:

​Petitioners argue that 8 NYCRR 130.6 (c) (2) (i) and 8 NYCRR 130.8 (d) (7) (i) are invalid because they compel parents to “unenroll” their children from schools deemed not substantially equivalent, authorizing and necessarily leading to school closures, and that this exceeds the authority of the Commissioner. * * *

The regulatory provisions at issue here state that, in the event of a negative substantial equivalency determination, “the nonpublic school shall no longer be deemed a school which provides compulsory education fulfilling the requirements of Article 65 of the Education Law” … . A determination that a nonpublic school has failed to meet the substantial equivalence requirement leads naturally to this acknowledgement—that the nonpublic school fails to comply with the Education Law’s substantial equivalency mandate and thus is not a school that fulfills the statutory requirement for compulsory education. Far from exceeding the Commissioner’s statutory authority, the regulations simply establish a mechanism by which the statutory mandate is enforced. In this regard, instead of being contrary to the statute’s purpose, the challenged regulations are a natural consequence flowing from the statutory language itself.

Contrary to petitioners’ claims, nothing in these provisions requires that parents “unenroll” their children from a nonpublic school deemed not to provide substantially equivalent instruction. Nor do the regulations authorize school closures. The provisions merely state that the nonpublic school does not provide substantially equivalent instruction—a determination well within the authority provided to the Commissioner by the statute. The parent or custodian must determine how then to ensure their compliance with the Education Law. Matter of Parents for Educ. & Religious Liberty in Schs. v Young, 2025 NY Slip Op 03689, CtApp 6-18-25

 

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“BEACH 12,” A NONPARTY WHICH BECAME TITLE OWNER OF THE PROPERTY AFTER PLAINTIFF FILED THE NOTICE OF PENDENCY, WAS ENTITLED TO INTERVENE IN THE FORECLOSURE ACTION AS OF RIGHT; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined an nonparty (Beach 12) was entitled to intervene in the foreclosure action as of right:

“Upon a timely motion, a person is permitted to intervene as of right when the representation of that person’s interest by the parties is or may be inadequate and the person is or may be bound by the judgment, or when the action involves the disposition of property and that person may be affected adversely by the judgment” (… CPLR 1012[a][2], [3]). “In addition, CPLR 1013 provides that a court has discretion to permit a person to intervene, inter alia, when the person’s claim or defense and the main action have a common question of law or fact” … . “Whether intervention is sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013, is of little practical significance, since intervention should be permitted where the intervenor has a real and substantial interest in the outcome of the proceedings” … . “Intervention may occur at any time, provided that it does not unduly delay the action or prejudice existing parties” … .

… Beach 12 was entitled to intervene [because] this “action involve[s] the disposition of title to real property” and … Beach 12, which became the title owner of the premises after the plaintiff’s filing of a notice of pendency, “would be bound and adversely affected by a judgment of foreclosure and sale” … . Bank of Am., N.A. v Reed, 2025 NY Slip Op 03695, Second Dept 6-18-25

Practice Point: Consult this decision the criteria for a nonparty’s intervention in a foreclosure action.

 

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THE IDENTIFICATION PROCEDURE WHICH USED DEFENDANT’S ARREST PHOTOGRAPH WAS UNDULY SUGGESTIVE REQUIRING SUPPRESSION OF THE RELATED IDENTIFICATIONS (SECOND DEPT).

The Second Department, reversing the burglary conviction and ordering a new trial on that count, determined the identification procedure, using an arrest photograph of the defendant, was unduly suggestive and the related identifications should have been suppressed:

Although the complainant’s identification of a Facebook photograph was not the product of a police-arranged identification procedure, the complainant’s identifications of the defendant from a single arrest photograph were the result of unduly suggestive identification procedures, and those identifications should have been suppressed … . Thus, the defendant is entitled to a new trial on the count of burglary in the second degree, to be preceded by a hearing to determine whether an independent source exists for the complainant’s identification of the defendant … . People v Wheeler, 2025 NY Slip Op 03747, Second Dept 6-18-25

Practice Point: Here the complainant’s identifications of the defendant from an arrest photograph should have been suppressed. The procedure was unduly suggestive.​

 

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