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HERE PLAINTIFF HAD THE RIGHT-OF-WAY ENTERING AN INTERSECTION AND DEFENDANT FAILED TO YIELD; PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT ON LIABILITY AND DISMISSAL OF DEFENDANTS’ COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs in this intersection-accident case was entitled to summary judgment on liability and dismissal of defendants’ comparative negligence affirmative defense:

“‘A driver who enters an intersection against a red traffic light in violation of Vehicle and Traffic Law § 1110(a) is negligent as a matter of law'” … . “A driver who has the right-of-way is entitled to anticipate that other drivers will obey traffic laws that require them to yield” … . Moreover, “a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield cannot be comparatively negligent for failing to avoid the collision” … .

“[T]he issue of a plaintiff’s comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant’s affirmative defense alleging comparative negligence” … . Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law dismissing the defendants’ affirmative defense alleging comparative negligence by demonstrating that the plaintiff driver entered the intersection with a green traffic light and had the right-of-way and that Mendez’s conduct was the sole proximate cause of the accident … . In opposition, the defendants failed to raise a triable issue of fact as to whether the plaintiff driver was comparatively negligent in causing the accident … . Ederi v Mendez, 2025 NY Slip Op 03041, Second Dept 5-21-25

Practice Point: A driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent and is entitled to summary judgment dismissing the comparative negligence affirmative defense.

 

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THE BANK DID NOT PROVE DEFENDANT’S DEFAULT IN THIS FORECLOSURE ACTION; THE AVERMENTS ABOUT DEFENDANT’S DEFAULT WERE BASED UPON THE AFFIANT’S REVIEW OF BUSINESS RECORDS; BECAUSE THE RECORDS WERE NOT ATTACHED, THE AFFIDAVIT WAS INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff bank did not prove defendant’s default because the relevant business records were not attached to the affidavit describing the default:

“Among other things, a plaintiff can establish a default by submission of an affidavit from a person having personal knowledge of the facts, or other evidence in admissible form” … . Here, the affidavit of Trey Cook, a document execution specialist for the plaintiff’s servicing agent, failed to provide proof of the defendant’s default in payment of the note in admissible form. Although Cook averred that he had personal knowledge of how the servicing agent’s business records were kept and maintained and that, based on his review of those business records, the defendant “failed to make the payment that was due for July 1, 2014 under the Loan Documents and . . . failed to make subsequent payments to bring the loan current,” the business records on which Cook relied were not annexed to his affidavit. Thus, Cook’s assertions regarding the defendant’s alleged default constituted inadmissible hearsay … . Deutsche Bank Trust Co. Ams. v Tagor, 2025 NY Slip Op 03040, Second Dept 5-21-25

Practice Point: An affidavit which avers facts drawn from the affiant’s review of business records is inadmissible hearsay if the records are not attached.

 

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WHERE RELEVANT FACTS ARE IN DISPUTE IN A CUSTODY MATTER, A HEARING IS REQUIRED; MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Family Court in this custody proceeding and remitting the matter for a hearing, noted that a custody ruling should only rarely be issued in the absence of a hearing:

“Custody and parental access determinations should ‘[g]enerally be made only after a full and plenary hearing and inquiry'” … . “This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child” … . “While the general right to a hearing in custody and visitation cases is not absolute, where ‘facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute,’ a hearing is required” … . “[A] court opting to forgo a plenary hearing must take care to clearly articulate which factors were—or were not—material to its determination, and the evidence supporting its decision” … . Matter of Horoshko v Pasieshvili, 2025 NY Slip Op 03064, Second Dept 5-21-25

Practice Point: Although there is no hard and fast rule that a custody matter requires a hearing before a ruling, whenever relevant facts are in dispute, a hearing is necessary.

 

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ALTHOUGH THE SCHOOL DISTRICT HAD TIMELY KNOWLEDGE OF THE INCIDENT AND THE PETITIONER’S INJURIES, IT DID NOT HAVE TIMELY KNOWLEDGE OF THE FACTS THAT UNDERLIE THE LEGAL THEORIES OF LIABILITY; THEREFORE THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner, a nurse hired to care for M.C., an infant, was not entitled to leave to file a late notice of claim against the school district for injuries allegedly suffered when M.C. struck her in a stairway at M.C.’s elementary school. Although there was an incident report and a police report, the school district’s timely actual knowledge of the incident and the injuries did not demonstrate knowledge of the essential facts constituting the claim:

… [T]he petition failed to establish that the District acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter. “Actual knowledge of the essential facts underlying the claim means knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the [proposed] notice of claim; the public corporation need not have specific notice of the theory or theories themselves” … . “[K]nowledge of the accident itself and the seriousness of the injury does not satisfy this enumerated factor where those facts do not also provide the public corporation with knowledge of the essential facts constituting the claim” … .

Here, while an employee incident report, a police incident report, and the involvement of an employee of the District in the incident may have established the District’s actual knowledge of the incident, they did not provide the District with actual knowledge of all of the essential facts underlying the claim … . Among other things, although the District was presumably aware that M. C.’s individualized education program (hereinafter IEP) allegedly required him to have an aide with him at all times due to aggression, and that no such aide had been assigned to him at the time of the incident, neither the IEP nor the incident reports described the incident while making a connection between [petitioner’s] injuries and negligent conduct on the part of the District … . Matter of Cooke v Mamaroneck Union Free Sch. Dist., 2025 NY Slip Op 03062, Second Dept 5-21-25

Practice Point: One of the criteria for leave to file a late notice of claim against a school district is that the district have had timely knowledge of the facts underlying the claim. Timely knowledge of the incident and injuries is not sufficient. The district must have had timely knowledge of the facts underlying the theory or theories of liability.

 

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HERE MOTHER’S CONCLUSORY AFFIDAVIT CLAIMING SHE WAS NOT SERVED WITH THE SUMMONS AND COMPLAINT BUT RATHER FOUND THE PAPERS ON THE GROUND IN FRONT OF THE FRONT DOOR WAS CONCLUSORY AND INSUFFICIENT TO REBUT THE PROCESS SERVER’S AFFIDAVIT; THEREFORE NO HEARING SHOULD HAVE BEEN HELD AND THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the conclusory affidavit by defendants’ mother, alleging she was not served with the summons and complaint but rather found the papers on the ground in front of her front door, was not sufficient to rebut the process server’s affidavit demonstrating proper service upon a person identified as “aunt:”

… [T]he process server’s affidavits constituted prima facie evidence that the defendants were properly served pursuant to CPLR 308(2) … . Contrary to the defendants’ contention, the defendants’ mother’s affidavit was insufficient to rebut the presumption arising from the process server’s affidavits because it was conclusory and not substantiated by specific facts … . The defendants’ mother’s conclusory averment that she did not receive service was insufficient to rebut the statement in the process server’s affidavits that an “AUNT” had accepted service. Furthermore, the defendants’ mother did not assert that there was no one else present at the premises who could have accepted service.

Therefore, because the defendants’ mother’s affidavit was insufficient to rebut the presumption of proper service, a hearing was not warranted … . … Supreme Court should have denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the complaint … . Harvey v Usukumah, 2025 NY Slip Op 03050, Second Dept 5-21-25

Practice Point: Here defendants’ mother’s affidavit claiming she was not served with the summons and complaint but rather found the papers on the ground outside the front door was deemed insufficient to rebut the process server’s affidavit. Therefore no hearing about the propriety of service should have been held and the motion to dismiss the complaint should have been denied.​

 

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IF DEFENDANT DRIVER, COCUZZO, WAS AN EMPLOYEE OF DEFENDANT RANDALL AT THE TIME OF THE ACCIDENT, RANDALL WOULD BE VICARIOUSLY LIABLE; NOT SO IF COCUZZO WAS AN INDEPENDENT CONTRACTOR; THE “EMPLOYER VS INDEPENDENT CONTRACTOR” ISSUE MUST BE RESOLVED BY THE TRIER OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined whether defendant Randall Provisions, Inc. was vicariously liable for defendant Cocuzzo’ s traffic accident depended on a question of fact, i.e., whether Cocuzzo was an employee or an independent contractor. Therefore Randall’s motion for summary judgment should not have been granted:

Randall submitted, inter alia, transcripts of the deposition testimony of Cucuzzo and the deposition testimony of Gregory L. Randall, its principal. Cucuzzo and Gregory both testified that Randall paid Cucuzzo in cash, issued him a 1099 tax form at the end of the year, and did not provide him with any fringe benefits, as well as that Cucuzzo used his own vehicle to travel his merchandising route. These facts all weigh in favor of the conclusion that Cucuzzo was an independent contractor … . However, Randall’s submissions also included evidence indicating the existence of an employer-employee relationship. For example, Cucuzzo testified that Gregory gave him three Pepsi-branded t-shirts to wear while working for Randall … , and that Randall provided him with a daily stipend to reimburse him for gas mileage on top of his regular pay … . Cucuzzo also testified that, when he first began working for Randall, he received approximately two days of training from a Randall worker as to the company’s “way of doing” the merchandising work … . According to Cucuzzo, he regularly checked in with a Randall delivery driver to coordinate their respective work obligations and to ensure that Cucuzzo only reported to a store after the driver had delivered products … . Although his work days fluctuated from week to week, Cucuzzo and Gregory both testified that Gregory would provide Cucuzzo with his work schedule in advance … , as well as determine the list of stores that Cucuzzo was required to visit … . Gaudreau v Cucuzzo, 2025 NY Slip Op 03046, Second Dept 5-21-25

Practice Point: Here there was evidence the driver involved in the accident was an employee and there was evidence he was an independent contractor. If the driver was an employee, his employer would be vicariously liable, not so if the driver was an independent contractor. The issue must be resolved by the trier of fact.

 

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THE BANK’S UNILATERAL ATTEMPT TO REVOKE THE ACCELERATION OF THE DEBT IS PRECLUDED BY THE FORECLOSURE ABUSE PROTECTION ACT (FAPA) WHICH APPLIES RETROACTIVELY TO THIS CASE; THE FORECLOSURE ACTION IS TIME-BARRED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined a letter from the bank in this foreclosure action purporting to revoke a prior acceleration of the debt did not stop the running of the six-year statute of limitations. The action was therefore time-barred. The Second Department noted that the Foreclosure Abuse Prevention Act (FAPA), effective December 30, 2022, applies retroactively to this case. The FAPA essentially provides that once the debt is accelerated the six-year statute of limitations keeps running despite any attempt to “unilaterally waive, postpone, cancel, toll, revive or reset the accrual” of the foreclosure action:

Applying FAPA here, the revocation letter did not de-accelerate the mortgage debt nor did it “revive or reset” the statute of limitations … . Since the plaintiff commenced this action more than six years after the initial acceleration of the mortgage debt, the defendants demonstrated their prima facie entitlement to summary judgment dismissing the complaint insofar as asserted against them as time-barred (see CPLR 213[4] …). US Bank Trust, N.A. v Horowitz, 2025 NY Slip Op 03095, Second Dept 5-21-25

Practice Point: Here the bank attempted to revoke a prior acceleration of the debt by sending defendants a “revocation letter.” The Foreclosure Abuse Prevention Act (FAPA), which applies retroactively to this case, rendered the attempted revocation a nullity. Therefore the letter did not stop the running of the six-year statute of limitations and the foreclosure action was time-barred.​

 

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PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY DEFENDANT PROPERTY OWNER IN THIS STAIRCASE SLIP AND FALL CASE, SUFFICIENTLY IDENTIFIED THE CAUSES OF PLAINTIFF’S FALL AND RAISED A QUESTION OF FACT ABOUT DEFENDANT’S CONSTRUCTIVE NOTICE OF THE CONDITION OF THE STAIRCASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the plaintiff’s deposition testimony adequately identified the causes of his staircase slip and fall and raised a question of fact about the defendant property owner’s constructive notice of the condition of the staircase. Therefore defendant’s motion for summary judgment should not have been granted:

“In a premises liability case, a defendant property owner . . . who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of its existence” … . “[A] defendant moving for summary judgment can [also] make a prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of the plaintiff’s fall without engaging in speculation” … .

Here, the defendant failed to establish, prima facie, that the plaintiff was unable to identify the cause of his fall without resorting to speculation … . In support of her motion, the defendant submitted, among other things, a transcript of the plaintiff’s deposition testimony, wherein he testified that he could not see where he was stepping because of poor lighting conditions in the stairwell, and as he attempted to place his left foot on a step, either the handrail shook or his foot slipped on the carpet, and he felt himself going backward. As the plaintiff’s left foot was in the air, his right foot slipped backwards because the carpet was worn. As such, the plaintiff identified the cause of his fall as a combination of the lighting, the handrail, and the poor condition of the carpet. Therefore, the defendant failed to establish, prima facie, that the plaintiff did not know what had caused him to fall … . In addition, the defendant failed to establish, prima facie, that she did not have actual or constructive notice of the allegedly dangerous condition … . Fitzmorris v Alexander, 2025 NY Slip Op 03044, Second Dept 5-21-25

Practice Point: If a plaintiff identifies a combination of factors which allegedly caused plaintiff’s slip and fall, the plaintiff has not failed to identify the proximate cause of the fall. Here plaintiff alleged poor lighting and either the handrail shook or his foot slipped on the worn carpet. Those allegations were deemed to have sufficiently identified the proximate cause(s) of the fall and to have raised a question of fact about defendant property owner’s constructive notice of the condition of the staircase.

 

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HERE A DISPUTE AMONG BROTHERS ABOUT OWNERSHIP OF REAL PROPERTY WAS RESOLVED BY AN OPEN COURT STIPULATION (CONTRACT) WHICH CANNOT BE INVALIDATED ABSENT FRAUD, COLLUSION, MISTAKE OR ACCIDENT; THEREFORE SUPREME COURT SHOULD HAVE HELD A HEARING BEFORE APPROVING THE SUBSEQUENT APPORTIONMENT OF THE PROPERTY BY A RECEIVER WHICH WAS INCONSISTENT WITH THE STIPULATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the receiver’s (Hafner’s) apportionment of the proceeds of the sale of real property owned by several brothers was inconsistent with the open court stipulation which had attempted to resolve the dispute before the receiver was appointed. Absent fraud, collusion, mistake or accident, a stipulation (contract) should not be invalidated. Therefore, Supreme Court should have held a hearing to determine whether there are grounds for avoiding the terms of the stipulation:

Supreme Court should have held an evidentiary hearing before approving Hafner’s amended final report and account based on the factual issues raised by the parties and the contentious nature of the proceedings … . “Stipulations of settlement are favored by the courts and not lightly cast aside . . . Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation” … . Here, Hafner’s amended final report and account was confirmed without the off-the-top credits owed to John and Thomas pursuant to the stipulation. Further, the amended final report and account allocated receivership costs for insurance that were inconsistent with the allocation of costs agreed to in the stipulation.

Additionally, a hearing is necessary to calculate Hafner’s commissions and to determine whether special circumstances exist warranting a recovery in excess of five percent of the sums received and disbursed … . CPLR 8004 allows a receiver to be paid commissions for his or her work “‘not exceeding five percent of sums received and disbursed by him or her'” … . Feeney v Giannetti, 2025 NY Slip Op 03043, Second Dept 5-21-25

Practice Point: An open court stipulation is a contract which cannot be invalidated absent fraud, collusion, mistake or accident. Here the apportionment of disputed property by the receiver was inconsistent with the stipulation. The court, therefore, should not have upheld the receiver’s apportionment without holding a hearing to determine whether there exist grounds for invalidating the stipulation.

 

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DEFENDANT’S FOR CAUSE CHALLENGE TO A PROSPECTIVE JUROR WHO COULD NOT SAY HE WOULD NOT HOLD DEFENDANT’S FAILURE TO TESTIFY AGAINT HIM SHOULD HAVE BEEN GRANTED; A POLICE OFFICER WHO SPENT ONLY 10 OR 15 MINUTES WITH THE DEFENDANT SHOULD NOT HAVE BEEN ALLOWED TO IDENTIFY THE DEFENDANT IN A VIDEO, DESPITE THE CHANGE IN DEFENDANT’S APPEARANCE (SECOND DEPT).

The Second Department, reversing defendant’s convictions and ordering a new trial, determined defendant’s for cause challenge to a prospective juror who said he would hold defendant’s failure to testify against him should have been granted. Because there will be a new trial, the Second Department noted that a police officer who had limited contact with the defendant should not have been allowed to identify the defendant in a video:

The prospective juror maintained that he was unable to “promise” that his decision would not be affected if the defendant did not testify at trial. Since the prospective juror made statements that cast doubt on his ability to render an impartial verdict under the proper legal standards and did not, upon further inquiry, provide unequivocal assurances that he would be able to render a verdict based solely upon the evidence adduced at trial, the Supreme Court should have granted the defendant’s for-cause challenge … .

… [W]e note that the Supreme Court improvidently exercised its discretion in allowing a police detective to identify the defendant as the individual depicted in a surveillance video. Generally, “‘lay witnesses must testify only to the facts,’ and not to their opinions and conclusions drawn from the facts,’ as it is the jury’s province ‘to draw the appropriate inferences arising from the facts'” … . In determining whether to permit this testimony, a court must consider “whether the witness has had sufficient contact with the defendant to achieve a level of familiarity that renders the lay opinion helpful” … . In making this assessment, courts may consider (1) the witness’s general level of familiarity with the defendant’s appearance, (2) whether the witness’s familiarity spanned an extended period of time and variety of circumstances, (3) whether the witness was familiar with the defendant’s appearance at the time the surveillance footage was taken, and (4) whether the witness was familiar with the defendant’s customary manner of dress or clothing (see id. at 648-649). Here, there was no basis for the court to conclude that the police detective was more likely than the jury to correctly determine whether the defendant was depicted in the surveillance video … . The police detective testified that he spent a total of 10 to 15 minutes with the defendant. While there was testimony that the defendant’s appearance had changed prior to the trial, through weight loss and cutting his hair, “the record is devoid of any other circumstances suggesting that the jury——which had ample opportunity to view [the] defendant——would be any less able than the detective to determine whether [the] defendant was, in fact, the individual depicted in the video” … . People v Williams, 2025 NY Slip Op 03087, Second Dept 5-21-25

Practice Point: A challenge to a prospective juror who cannot state unequivocally he or she would not hold defendant’s failure to testify against the defendant must be granted.

Practice Point: A police officer who is allowed to identify the defendant in a video is offering an opinion, not facts. Here the officer had spent only 10 to 15 minutes with the defendant and therefore was not qualified to offer an opinion on the identity of the person depicted in the video.

 

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