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HERE THE FIRST “NAIL AND MAIL” AFFIDAVIT BY THE PROCESS SERVER FAILED TO DEMONSTRATE THE REQUIRED MAILING; A SECOND AFFIDAVIT WAS SUBMITTED WHICH DESCRIBED THE MAILING; THE SECOND AFFIDAVIT DID NOT CURE THE DEFECT IN THE ORIGINAL AFFIDAVIT; THEREFORE A HEARING ON THE VALIDITY OF THE SERVICE OF PROCESS WAS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a hearing was required on whether defendant was properly served by “nail and mail.” The first affidavit from the process server did not mention the required mailing. A second affidavit which described the mailing was subsequently submitted. The second affidavit did not cure the flaw in the original affidavit:

… Supreme Court erred in determining the defendant’s cross-motion, inter alia, to vacate the judgment and to dismiss the complaint for lack of personal jurisdiction without first conducting a hearing to determine the validity of service of process. The original affidavit of service sworn to on July 26, 2018, failed to aver that the process server mailed the summons and complaint as required by CPLR 308(4). The new affidavit of service sworn to on November 23, 2021, submitted by the plaintiff in opposition to the defendant’s cross-motion, could not be used to cure the apparent defect in the original affidavit of service … . Further, the defendant raised an issue of fact as to whether the summons and complaint were affixed to the door of the defendant’s dwelling place or usual place of abode … . Miller v Fuentes, 2025 NY Slip Op 03564, Second Dept 6-11-25

Practice Point: If the original affidavit by the process server does not describe the mailing requirement for “nail and mail” service, that flaw is not cured by submitting a second affidavit which describes the mailing. The flaw in the original affidavit mandates a hearing on the validity of the service of process.

 

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DEFENDANT HOSPITAL DISCHARGED A PATIENT WITH A HISTORY OF SCHIZOPHRENIA BUT NO HISTORY OF THREATENING OR ASSAULTING PEOPLE; THE PATIENT ASSAULTED PLAINTIFF, THE CAB DRIVER PAID BY THE HOSPITAL TO TAKE THE PATIENT HOME; THE HOSPITAL DID NOT OWE A DUTY OF CARE TO PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant hospital did not owe a duty of care to the cab driver injured (assaulted) by a patient (Barrio) who was just released, despite the fact that the cab fare was paid by the hospital:

… [T]he defendant Francis Barrios was taken by ambulance to the emergency department of the defendant John T. Mather Memorial Hospital (hereinafter the hospital). Barrios, who had a history of schizophrenia, complained of anxiety, tremors, and blurry vision. The hospital records indicated that Barrios did not have a history of threatening or attempting to hurt others, or of actually hurting others, and that Barrios did not display any signs of violent behavior. After consultation with the psychiatrist on call, it was determined that Barrios should be discharged and should seek outpatient treatment. * * *

“The elements of a cause of action alleging common-law negligence are a duty owed by the defendant to the plaintiff, a breach of that duty, and a showing that the breach was a proximate cause of the plaintiff’s injury” … . “Without a duty running directly to the injured person, there can be no liability” … . “Generally, a defendant has no duty to control the conduct of third persons so as to prevent them from harming others” … . “A duty may arise, however, where there is a relationship either between defendant and a third-person tortfeasor that encompasses defendant’s actual control of the third person’s actions, or between defendant and plaintiff that requires defendant to protect plaintiff from the conduct of others” … .

Here, the plaintiffs failed to establish, prima facie, that the hospital owed the injured plaintiff a duty. There is no evidence that the hospital had sufficient authority and ability to control Barrios’s actions after he was discharged and left the hospital … . The hospital’s decision to pay for a taxi service for Barrios after his discharge did not make the hospital the injured plaintiff’s employer, make the hospital an agent for Barrios, or otherwise create a special duty … . Further, absent evidence in the record that the hospital knew or should have known that Barrios posed a threat to the injured plaintiff, she was a member of the general public and not of a class of people to whom the hospital owed a duty … . Melio v John T. Mather Mem. Hosp., 2025 NY Slip Op 03562, Second Dept 6-11-25

Practice Point: Here a discharged patient with schizophrenia assaulted the cab driver paid by the hospital to take the patent home. The hospital did not owe a duty of care to the cab driver.

 

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PLAINTIFF’S DECEDENT WAS KILLED WHEN THROWN FROM A RENTED MOPED; THE RENTAL AGREEMENT INCLUDED AN ARBITRATION CLAUSE; THE NEGLIGENCE CAUSES OF ACTION ARE SUBJECT TO THE ARBITRATION CLAUSE; HOWEVER, THE WRONGFUL DEATH CAUSE OF ACTION IS NOT SUBJECT TO THE ARBITRATION CLAUSE; NEGLIGENCE AND WRONGFUL-DEATH CAUSES OF ACTION ARE DISTINCT AND ADDRESS DIFFERENT INJURIES; THE WINNING ISSUE WAS RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice McCormack, determined the plaintiffs in this wrongful death action, who are the parents of plaintiffs’ decedent and the administrators of decedent’s estate, are not bound by the decedent’s agreement to arbitrate. The decedent rented an electric moped from defendant Ravel by downloading an app with an arbitration clause. Decedent was killed when he was thrown from the moped and struck by a car. All agreed that the negligence causes of action were subject to the arbitration clause. Plaintiffs successfully argued the wrongful death action is distinct from the negligence actions and is not subject to the arbitration clause. The winning argument was first raised on appeal. The court heard the appeal because it “present[ed] a pure question of law that appears on the face of the record and could not have been avoided if raised at the proper juncture” …:

Here, it is undisputed that the plaintiffs, individually, did not enter into an agreement with Revel to arbitrate. However, the plaintiffs are the administrators of the decedent’s estate, and the causes of action arise from the same incident that caused the decedent’s death. The issue, therefore, turns on the nature of wrongful death causes of action and whether they are derivative of negligence causes of action or independent of negligence causes of action. * * *

The law of this State is clear that a wrongful death cause of action is a separate and distinct cause of action to redress the injuries suffered by a decedent’s distributees as a result of the decedent’s death. “‘A cause of action to recover damages for wrongful death is a property right belonging solely to the distributees of the decedent and vests in them at the decedent’s death'” … . This is true even where no cause of action alleging negligence exists. * * * … [T]his Court [has] determined that a cause of action alleging wrongful death was not derivative of a negligence cause of action, but [is] an independent cause of action vested in the distributees. “… [T]he surviving personal injury action and the wrongful death cause of action … are different in many respects. The two causes of action exist in order to protect the rights of different classes of persons, and the measure of damages is entirely different” … . “Wrongful death actions are brought not to compensate the decedent or his [or her] estate for the pain and suffering attendant to the injury, but rather to recover, on behalf of decedent’s distributees, the pecuniary value of the decedent’s life” … . Further, the different causes of action accrue at different times. A negligence cause of action accrues at the time of the injury, while a wrongful death cause of action does not accrue until the decedent’s death, which can occur after the injury is sustained … . Marinos v Brahaj, 2025 NY Slip Op 03561, Second Dept 6-11-25

Practice Point: Negligence and wrongful death causes of action are distinct and address different injuries. Here an arbitration clause in a moped rental contract executed to by plaintiffs’ decedent was deemed to apply to the negligence causes of action stemming from the moped accident, but not to the related wrongful death cause of action.​

Practice Point: Consult this opinion for an example of when an issue raised for the first time on appeal will be considered by the appellate court.

 

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PLAINTIFF IN THIS MED-MAL WRONGFUL-DEATH ACTION DID NOT RESPOND TO THE NINETY-DAY DEMAND TO FILE A NOTE OF ISSUE, DID NOT PRESENT A REASONABLE EXCUSE FOR THE FAILURE TO RESPOND, AND DID NOT DEMONSTRATE A MERITORIOUS CAUSE OF ACTION; THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s failure to respond to the ninety-day CPLR 3216 demand to file a note of issue required dismissal of the medical malpractice action. The law-office-failure excuse was vague and conclusory and plaintiff did not demonstrate a meritorious cause of action:

“Where, as here, a plaintiff has been served with a 90-day demand . . . pursuant to CPLR 3216(b)(3), the plaintiff must comply with the demand by filing a note of issue or by moving, before the default date, either to vacate the demand or to extend the 90-day demand period” … . Here, the plaintiff did neither.

“In opposition to a motion to dismiss pursuant to CPLR 3216, a plaintiff may still avoid dismissal if he or she demonstrates ‘a justifiable excuse for the failure to timely abide by the 90-day demand, as well as the existence of a potentially meritorious cause of action'” … . “‘Although the court has the discretion to accept law office failure as a justifiable excuse (see CPLR 2005), a claim of law office failure should be supported by a detailed and credible explanation of the default at issue'” … . Here, the vague and conclusory claim of law office failure set forth by the plaintiff’s attorney did not constitute a justifiable excuse … . Moreover, the plaintiff failed to submit evidentiary proof from a medical expert demonstrating the existence of a potentially meritorious cause of action … . Kresberg v Kerr, 2025 NY Slip Op 03559, Second Dept 6-11-25

Practice Point: Here a vague and conclusory allegation of law-office-failure was not a reasonable excuse for failure to respond to the ninety-day demand to file a note of issue.

 

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THE ACCOMPANYING AFFIDAVIT DID NOT LAY A PROPER FOUNDATION FOR THE ADMISSIBILITY OF THE DOCUMENTS RELIED UPON BY THE REFEREE IN THIS FORECLOSURE ACTION; THEREFORE THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department determined the referee’s report in this foreclosure action should not have been confirmed because a proper foundation for the admissibility of the records relied upon by the referee was not provided by the accompanying affidavit:

“The report of a referee should be confirmed whenever the findings are substantially supported by the record and the referee has clearly defined the issues and resolved matters of credibility” … . Here, in computing the amount due on the mortgage loan, the referee relied upon the affidavit of Frank Rosas, a vice president of Nationstar Mortgage, LLC (hereinafter Nationstar), the servicer of the mortgage loan. Rosas stated in his affidavit that Nationstar’s records pertaining to the mortgage loan included records of PHH Mortgage, a prior servicer. However, Rosas did not state when Nationstar began servicing the loan, did not state that “[he] was personally familiar with the record-keeping practices and procedures” of PHH Mortgage … , and did not “establish that the records provided by [PHH Mortgage] were incorporated into [Nationstar’s] own records and routinely relied upon by [Nationstar] in its own business” … . Thus, Rosas’s affidavit failed to satisfy the admissibility requirements of CPLR 4518(a) … . HSBC Bank USA, N.A. v Coxall, 2025 NY Slip Op 03557, Second Dept 6-11-25

Practice Point: An affiant’s failure to lay a proper foundation for the admissibility of business records in a foreclosure action results in reversal.

 

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DEFENDANT DINER’S SECURITY GUARD KNOCKED PLAINTIFF TO THE GROUND AND CHOKED HIM; WHETHER THE DINER DEFENDANTS ARE VICARIOUSLY LIABLE DEPENDED UPON WHETHER THE SECURITY GUARD WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ASSAULT; THE FAILURE TO PROVIDE THE JURY WITH AN INTERROGATORY ON THE SCOPE-OF-EMPLOYMENT QUESTION REQUIRED A NEW TRIAL (SECOND DEPT).

The Second Department, reversing the denial of defendants’ motion to set aside the verdict and ordering a new trial, held the jury should have been instructed to determine whether the security guard (Vetell) who assaulted plaintiff was acting within the scope of his employment at the time of the assault. Apparently plaintiff left the defendant diner to get money at an ATM to pay the bill. When he retuned to the diner, the security guard knocked him to the ground and choked him:

… Supreme Court erred in denying the appellants’ counsel’s request to ask the jury to determine whether Vetell was acting within the scope of his employment when he attacked the plaintiff. The interrogatories that were given to the jury made it possible for the jury to find the appellants liable for Vetell’s acts based only on his being a special employee without determining that he was acting within the scope of his employment when he attacked the plaintiff. Since a determination that Vetell was acting within the scope of his employment is a necessary element to render the appellants vicariously liable for his acts, the court should have added the requested interrogatory to the verdict sheet … . Eaton v Fiotos, 2025 NY Slip Op 03553, Second Dept 6-10-25

Practice Point: Whether an employer is vicariously liable for the actions of an employee depends upon whether the employee’s conduct was within the scope of employment. Here the failure to so instruct the jury required a new trial.​

 

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THE SUPREME COURT’S PART RULES REQUIRED PLAINTIFF TO FIRST CONFERENCE THE MATTER BEFORE MOVING TO COMPEL DEFENDANTS TO COMPLY WITH DISCOVERY DEMANDS; THE FAILURE TO CONFERENCE THE MATTER, HOWEVER, IS NOT A VALID GROUND FOR DENYING THE MOTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to strike defendants’ answer or compel compliance with discovery demands should not have been denied on the ground plaintiff failed to first conference the matter as required by the court’s Part Rules:

… Supreme Court improvidently exercised its discretion in denying the motion on the ground that plaintiff failed to first conference the matter with the court in accordance with its Part Rules. The court may not condition the making of a motion on prior judicial approval … . Reyes v City of New York, 2025 NY Slip Op 03545, First Dept 6-10-25

Practice Point: Here plaintiff’s failure to comply with Supreme Court’s Part Rule requiring a conference before moving to compel discovery was not a valid ground for denying the motion. A court may not condition the making of a motion on prior judicial approval.

 

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ALL STATEMENTS MADE BY DEFENDANT AFTER HE RESPONDED “NO SIR.” WHEN ASKED IF HE WAS WILLING TO ANSWER QUESTIONS SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, vacating his plea, and granting part of the suppression motion, over a partial dissent, determined that all the statements defendant made after he responded “No sir” when asked if he was willing to answer questions should have been suppressed. The dissent argued statements made before defendant was read his Miranda rights should also be suppressed:

Defendant contends that the court erred in refusing to suppress his post-Miranda statements inasmuch as they were made after he invoked his right to remain silent by answering “No, sir” when asked if he would be willing to answer questions after being advised of his Miranda rights. We agree. ” ‘[I]n order to terminate questioning, the assertion by a defendant of [the] right to remain silent must be unequivocal and unqualified’ ” … . Whether a defendant’s “request was ‘unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request[,] including the defendant’s demeanor, manner of expression and the particular words found to have been used by the defendant’ ” … . Here, we conclude that defendant clearly communicated a desire to cease all questioning indefinitely when he responded “No, sir” to the verbal and written inquiries about whether he was willing to answer questions … .

We further agree with defendant that the court erred in refusing to suppress the holding cell statements, which were also made after defendant unequivocally and unqualifiedly asserted his right to remain silent. Contrary to the People’s assertion that the statements were made spontaneously at a time when the detective was seeking “pedigree information,” we conclude that the People did not establish that the detective’s questions “were reasonably related to the police’s administrative concerns” rather than “a disguised attempt at investigatory interrogation” … . People v Sullivan, 2025 NY Slip Op 03494, Fourth Dept 6-6-25

Practice Point: If a defendant is asked whether he is willing to answer questions and answers “no,” any subsequent statements must be suppressed.​

 

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ALTHOUGH THE EVIDENCE OF DEFENDANT’S CONSTRUCTIVE POSSESSION OF DRUGS AND DRUG PARAPHERNALIA FOUND IN HIS GIRLFRIEND’S APARTMENT WAS DEEMED LEGALLY SUFFICIENT, THE FINDING THAT DEFENDANT CONSTRUCTIVELY POSSESSED THE DRUGS AND PRAPHERNALIA WAS DEEMED AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s bench-trial conviction of criminal possession of a controlled substance and criminally using drug paraphernalia, determined the finding that defendant constructively possessed the drugs and paraphernalia located in his girlfriend’s apartment was against the weight of the evidence. Note that the Fourth Department concluded there was legally sufficient evidence of constructive possession:

… “[W]here there is no evidence that the defendant actually possessed the controlled substance or drug paraphernalia, the People are required to establish that the defendant exercised dominion or control over the property by a sufficient level of control over the area in which the contraband is found” … . The People may establish such constructive possession by circumstantial evidence … , “but a defendant’s mere presence in the area in which the contraband is discovered is insufficient to establish constructive possession” … .

Here, while the People adduced evidence establishing that defendant had a key to the apartment and stayed there “from time to time,” defendant was not a party to the lease and a search of the premises did not reveal anything to “specifically connect[ ] defendant to the places where the contraband was ultimately found” … . Moreover, none of the contraband was in plain view … and, thus, no statutory presumption of defendant’s knowing possession applied … .

We conclude that the weight of the evidence does not support a finding that defendant “exercised dominion or control over the [contraband] by a sufficient level of control over the area in which [it was] found” … . People v Smith, 2025 NY Slip Op 03454, Fourth Dept 6-6-25

Practice Point: Consult this decision for an example of when evidence is legally sufficient to withstand a motion for a trial order of dismissal but a finding based on that same evidence is deemed “against the weight of the evidence.”

 

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PLAINTIFF IN THIS TRAFFIC ACCIDENT CASE RAISED QUESTIONS OF FACT ABOUT WHETHER THE RELEASE HE SIGNED WAS INVALID DUE TO MUTUAL MISTAKE ABOUT THE EXISTENCE OF LUMBAR DISC INJURIES AND LEFT HIP DEGENERATIVE JOINT DISEASE; IN ADDITION, PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER THE RELEASE WAS INVALID BECAUSE IT WAS “NOT FAIRLY AND KNOWINGLY MADE;” CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff had raised questions of fact the validity of the release he signed in this traffic accident case:

A plaintiff seeking to invalidate a release on the ground that there was a mutual mistake with respect to the extent of the injuries that the plaintiff sustained must establish that, at the time the release was executed, “the parties were under ‘[a] mistaken belief as to the nonexistence of [a] presently existing injury’ ” … . “[I]n resolving claims of mutual mistake as to injury at the time of release, there has been delineated a sharp distinction between injuries unknown to the parties and mistake as to the consequence of a known injury” … . “A mistaken belief as to the nonexistence of presently existing injury is a prerequisite to avoidance of a release” … , whereas “[i]f the injury is known, and the mistake . . . is merely as to the consequence, future course, or sequelae of [the] known injury, then the release will stand” … . “Even where a releasor has knowledge of the causative trauma, . . . there must be actual knowledge of the injury. Knowledge of injury to an area of the body cannot cover injury of a different type and gravity” … . Accepting the facts as alleged in the complaint as true and according plaintiff the benefit of every possible favorable inference … , we agree with plaintiff that he sufficiently alleged facts on which to invalidate the release on the ground of mutual mistake inasmuch as, despite the fact that at the time the release was signed plaintiff had pain in the cervical spine and left hip and a diagnosis of a cervical strain, plaintiff alleged that neither party was aware of plaintiff’s lumbar disc injuries or left hip degenerative joint disease at that time … .

A plaintiff seeking to invalidate a release on the ground that it was not fairly and knowingly entered into must establish that “the release was signed by the plaintiff under circumstances that indicate unfairness, [or that] it was not ‘fairly and knowingly’ made” … . Again accepting the facts as alleged in the complaint as true and according plaintiff the benefit of every possible favorable inference … , we agree with plaintiff that, in the complaint and his affidavit in opposition to the motion, he sufficiently alleged facts on which to invalidate the release on the ground of whether the release was fairly and knowingly entered into inasmuch as plaintiff averred in his affidavit in opposition to the motion that, inter alia, he signed the release a short time after the accident occurred, he is unable to fluently read, understand or speak English, he did not understand the release, at the time he signed the release he did not have an attorney, he was not provided with an interpretation of the release, and he needed money for a vehicle in order to attend medical appointments … . Pastrana-Ortiz v Wemple, 2025 NY Slip Op 03425, Fourth Dept 6-6-25

Practice Point: Consult this decision for explanations of the criteria for invalidating a release (1) due to fraud, (2) due to mutual mistake, and (3) because it was “not fairly and knowingly made.”

 

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