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THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION RELIED ON BUSINESS RECORDS DESCRIBED IN AN AFFIDAVIT SUBMITTED BY PLAINTIFF; BUT THE AFFIANT DID NOT LAY A PROPER FOUNDATION FOR THE ADMISSION OF THOSE RECORDS IN EVIDENCE; JUDGMENT REVERSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action was not supported by the record. The affidavit submitted by the plaintiff did not provide a foundation for the admissibility of the business records relied upon by the referee:

“[A]s a general rule, the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records” … . “However, such records may be admitted into evidence if the recipient can establish personal knowledge of the maker’s business practices and procedures, or establish that the records provided by the maker were incorporated into the recipient’s own records and routinely relied upon by the recipient in its own business” … .  …

[The affiant] failed to aver to familiarity with the record-keeping practices and procedures of the entities that generated the records or establish that the records provided by the maker were incorporated into the plaintiff’s own records and routinely relied upon by the plaintiff in its own business … . Since the plaintiff did not lay the proper foundation for the admission of the records into evidence, those records do not constitute admissible evidence … . PS Funding, Inc. v 1641 Park Place, LLC, 2025 NY Slip Op 03349, Second Dept 6-4-25

Practice Point: In a foreclosure action, an affidavit which describes business records relied on by the referee must lay a proper foundation for the admission of those records. The absence of a proper foundation renders the referee’s report unsupported by the record.​

 

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NOTHING IN DEFENDANT’S CRIMINAL HISTORY INVOLVED SUBSTANCE ABUSE OR WEAPONS; THEREFORE THE PROBATION CONDITION THAT DEFENDANT SUBMIT TO SEARCHES OF HIS PERSON, VEHICLE AND HOME WAS STRUCK (FIRST DEPT).

The First Department, striking a probation condition, determined (1) the requirement that defendant submit to warrantless searches of his person, vehicle and home was not appropriate, and (2) the challenge to the probation condition survived defendant’s waiver of appeal:

Defendant’s challenge to the condition of probation requiring that he consent to warrantless searches of his person, vehicle, and home survives the appeal waiver … . “Defendant was not under the influence of any substance or armed with a weapon when he committed the crime of which he was convicted, and he had no history of offenses involving substance abuse or weapons” … . Accordingly, the consent-search condition was not necessary to ensure that he will lead a law-abiding life ( … see Penal Law § 65.10[1]), or reasonably related to defendant’s rehabilitation (see Penal Law § 65.10[2][l]), rendering the condition improperly imposed … . People v Avila, 2025 NY Slip Op 03286, First Dept 6-3-25

Practice Point: Where a defendant’s criminal history does not involve drugs or weapons, requiring defendant to submit to warrantless searches as a condition of probation is not supported.

 

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BECAUSE THE CRIMES INVOLVED ARE NOT “REGISTRABLE OFFENSES” AND NOTHING IN DEFENDANT’S CRIMINAL HISTORY WERE SEX OFFENSES, THE JUDGE SHOULD NOT HAVE IMPOSED SPECIALIZED SEXUAL OFFENDER CONDITIONS UPON DEFENDANT’S PROBATION (THIRD DEPT).

The Third Department, modifying the judgment of conviction, determined the specialized sexual offender conditions should not have been imposed upon defendant’s probation because the underlying offenses had no connection to sex offenses:

Although neither burglary in the third degree (see Penal Law § 140.20), the crime for which defendant was indicted, nor criminal trespass in the second degree (see Penal Law § 140.15 [1]), the crime for which defendant was convicted, qualify as registerable offenses under Correction Law § 168-a (2), we previously have held that it may be “proper to impose sex offender conditions in cases which do not technically qualify as sex offender cases, . . . so long as the conditions imposed are reasonably related to the defendant’s rehabilitation, are reasonably necessary to insure that the defendant will lead a law-abiding life, and are necessary or appropriate to ameliorate the conduct which gave rise to the offense or to prevent the incarceration of the defendant” … . That said, upon reviewing defendant’s criminal history and considering the circumstances underlying the crime of conviction, we agree with defendant that the specialized sexual offender conditions imposed by County Court do not meet that standard.

Regardless of whether defendant completed sex offender treatment prior to being successfully discharged from probation in Florida in September 2000, the fact remains that — in the nearly 25 years that have elapsed since then — defendant has not been charged with any additional sex offenses; indeed, prior to the underlying trespass incident in March 2023, it appears that defendant — with the exception of an unspecified “criminal registration” offense in Florida in November 2000 — was not charged with any new crimes at all. Additionally, the criminal trespass conviction did not stem from defendant entering a school, no children were present at the time of the offense (or otherwise involved or implicated in its commission) and the underlying crime was not even tangentially related to either a sex or child welfare offense … . Under these circumstances, County Court abused its discretion in imposing the specialized sexual offender conditions upon defendant’s probation. People v Rhodehouse, 2025 NY Slip Op 03228, Third Dept 5-29-25

Practice Point: Although specialized sexual offender conditions can be imposed upon probation where the underlying crimes are not sex offenses, here it was an abuse of discretion to do so, based upon the absence of sex offenses from defendant’s criminal history.

 

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IN THIS CHILD VICTIMS ACT CASE ALLEGING SEXUAL ABUSE BY A SCHOOL JANITOR, THE NEGLIGENT AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION AND THE DEMAND FOR PUNITIVE DAMAGES SHOULD HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the causes of action against defendant school for negligent and intentional infliction of emotional distress, and the demand for punitive damages, should have been dismissed. This Child Victims Act case alleged plaintiff-student was sexually abused by a janitor:

… Supreme Court should have directed dismissal of the cause of action alleging negligent infliction of emotional distress insofar as asserted against each of the school defendants, as it is duplicative of the remaining negligence causes of action … . A cause of action is properly dismissed as duplicative when it is “based on the same facts and seek[s] essentially identical damages” … .

Furthermore, the amended complaint failed to state a cause of action to recover damages for intentional infliction of emotional distress. “The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress” … . “The subject conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” … . Furthermore, conclusory assertions are insufficient to set forth a cause of action sounding in the intentional infliction of emotional distress … . Here, even accepting the conclusory allegations in the amended complaint as true and according the plaintiff the benefit of every possible favorable inference, the plaintiff failed to allege conduct by the school defendants that was “so outrageous in character, and so extreme in degree,” as to qualify as intentional infliction of emotional distress … . Accordingly, the Supreme Court should have directed dismissal of the cause of action to recover damages for intentional infliction of emotional distress insofar as asserted against each of the school defendants pursuant to CPLR 3211(a)(7).

… Supreme Court should have directed dismissal of the demand for punitive damages insofar as asserted against each of the school defendants. “[P]unitive damages are available for the purpose of vindicating a public right only where the actions of the alleged tort-feasor constitute gross recklessness or intentional, wanton or malicious conduct aimed at the public generally or are activated by evil or reprehensible motives” … . Here, the plaintiff’s allegations against the school defendants amount to “nothing more than allegations of mere negligence and do not rise to the level of moral culpability necessary to support a claim for punitive damages” … . Redd v Brooklyn Friends Sch., 2025 NY Slip Op 03214, Second Dept 5-28-25

Practice Point: Consult this decision for the criteria for sufficiently alleging negligent and intentional infliction of emotional distress causes of action, as well as the criteria for a demand for punitive damages against a school in a Child Victims Act case​.

 

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IN THIS TRAFFIC-ACCIDENT CASE, PLAINTIFF BROUGHT THE ACTION IN AN IMPROPER VENUE; DEFENDANTS’ MOTION TO CHANGE VENUE WAS SIX DAYS LATE; SUPREME COURT IMPROVIDENTLY EXERCISED ITS DISCRETION IN DENYING THE MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to change venue in this traffic-accident case should have been granted. Plaintiff had brought the action in an improper venue. Although the defendants’ motion to change venue was six days late, Supreme Court had the discretion to grant it:

CPLR 510 sets forth grounds on which a motion to change venue may be made. When a defendant moves to change venue on the ground that the venue selected by the plaintiff is not proper … , the defendant must serve a timely demand on the plaintiff prior to making the motion … . When a motion to change venue on this ground is untimely, the motion is addressed to the court’s discretion rather than based on right … . Here, the defendants acknowledge that, after serving a demand to change venue with their answer, they moved to change the venue of the action six days late. Thus, their motion “became one addressed to the court’s discretion” … .

Under the circumstances present here, the Supreme Court improvidently exercised its discretion in denying the defendants’ motion pursuant to CPLR 510 to change the venue of the action from Kings County to Suffolk County. Venue is proper “in the county in which one of the parties resided when [the action] was commenced; [or] the county in which a substantial part of the events or omissions giving rise to the claim occurred ” … . Here, there is no dispute that none of the parties resided in Kings County and that the accident did not occur in Kings County. By selecting an improper venue in the first instance, the plaintiff forfeited the right to choose venue … . Further, the plaintiff failed to show that the county specified by the defendants was improper and did not cross-move to retain venue in Kings County or to transfer venue to a county other than that urged by the defendants … . Moreover, although the defendants’ motion was untimely, they promptly moved to change the venue of the action after confirming the true location of the accident … . Pujals v Haitidis, 2025 NY Slip Op 03213, Second Dept 5-28-25

Practice Point: Plaintiff brought the action in an improper venue. Defendants’ motion to change venue was six days late. Under the facts, Supreme Court improvidently exercised its discretion when it denied defendants’ motion.

 

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MOTHER BROUGHT A MANDAMUS-TO-COMPEL PROCEEDING TO REQUIRE THE SUPPORT MAGISTRATE TO HOLD A SUPPORT-ORDER-VIOLATION HEARING WITHIN THE TIME-LIMIT SET IN THE UNIFORM RULES FOR FAMILY COURT; THE APPEAL WAS HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE BECAUSE THE ISSUE IS LIKELY TO RECUR; THE SECOND DEPARTMENT HELD THE SUPPORT MAGISTRATE HAD THE DISCRETION TO ADJOURN THE MATTER BEYOND THE DEADLINE SET IN THE UNIFORM RULES, DESPITE THE MANDATORY LANGUAGE IN THE RULE (SECOND DEPT).

The Second Department, modifying Supreme Court, determined an exception to the mootness doctrine applied (to allow the appeal to be heard) and the mandamus-to-compel proceeding should have been denied on the merits. Petitioner mother sought to compel the support magistrate to hold a hearing on father’s alleged support-order violation within the time allowed by the Uniform Rules for Family Court. The Appellate Division held that, although the relevant rule setting a deadline for a hearing used mandatory language, a judge has the discretion the adjourn matters beyond a deadline set in the Uniform Rules:

… [W]e conclude that the exception to the mootness doctrine applies. The petitioner has demonstrated that the issue is “capable of repetition” in other cases … . It also involves a phenomenon that will typically evade appellate review, since a Family Court can render any challenge to an alleged failure to adhere to the provisions of the rule academic by advancing a hearing date or completing a hearing in its entirety … , as occurred in this case … . Further, the argument raised by the petitioner presents “a substantial and novel issue of statewide importance regarding the rights of [custodial] parents” to resolve child support disputes in a timely manner … . * * *

… [W]e conclude that a writ of mandamus is not available to compel judicial officers to comply with the deadlines set forth in 22 NYCRR 205.43(b) and (e). As our colleagues in the First Department recognized, “[t]he timely completion of [child support] hearings depends on discretionary determinations made by individual Family Court judges and support magistrates as to whether good cause exists for adjournments” … . Indeed, the decision of a Family Court judge or support magistrate to grant an adjournment in a support proceeding is discretionary in nature (see Family Ct Act § 435 …). This Court, for example, has reversed orders in circumstances where a court’s denial of an adjournment request constituted an abuse or improvident exercise of discretion … . Further, the rule expressly states that judges and support magistrates may grant adjournments for various reasons, including to permit a party to secure counsel, in circumstances where a party’s counsel establishes actual engagement, due to the illness of a party, or for other good cause shown … . Therefore, “[a]lthough the 90-day limit” of 22 NYCRR 205.43(b) “is written in mandatory terms,” as is the 7-day limit of 22 NYCRR 205.43(e), these provisions do “not impose . . . nondiscretionary ministerial dut[ies]” upon judges or support magistrates that may be subject to mandamus … . In reaching this determination, we express no opinion as to whether a judicial officer’s alleged failure to adhere to the relevant provisions of 22 NYCRR 205.43 may be successfully challenged under provisions of CPLR article 78 that are not at issue here … . Matter of Santman v Satterthwaite, 2025 NY Slip Op 03196, Second Dept 5-28-25

Practice Point: Consult this decision for an explanation for when a moot issue can be heard on appeal.

Practice Point: Although the Uniform Rules for Family Court use mandatory language in setting a deadline for holding a hearing on an alleged violation of a support order, the support magistrate had the discretion to adjourn the hearing beyond the deadline set in the Rules.

 

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PLAINTIFF’S DECEDENT WAS KILLED WHEN DEFENDANT DRIVER, WHO WAS BEING CHASED BY THE POLICE DEFENDANTS, COLLIDED WITH PLAINTIFF’S DECEDENT’S VEHICLE; THE DEFENSE VERDICT IN THE “RECKLESS DISREGARD” ACTION AGAINST THE POLICE WAS REVERSED BECAUSE OF THE OMISSION OF RELEVANT EVIDENCE AND THE ADMISSION OF PREJUDICIAL EVIDENCE; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the defense verdict and ordering a new trial in this “reckless disregard” action against the Nassau County Police Department stemming from a fatal traffic accident during a police chase, determined several evidentiary errors deprived plaintiff’s decedent of a fair trial. The vehicle which the police were chasing, driven by defendant Daley, collided with plaintiff’s decedent’s vehicle:

Supreme Court erred in declining to admit the Nassau County Police Department Rules and Regulations (hereinafter the rules) into evidence. An officer’s alleged violation of internal guidelines, although not dispositive, may be some evidence of whether an officer acted with reckless disregard … . The court compounded this error when it charged the jury pursuant to PJI 2:79A, specifically charging the jury that it may consider the rules when determining whether the police officers acted with reckless disregard for the safety of others. To the extent necessary, the rules could have been admitted with a limiting instruction that they may considered only as some evidence of recklessness, along with other factors … .

Further, the Supreme Court erred in admitting the full decision from a Dunaway/Huntley/Mapp hearing in the defendant driver’s criminal proceeding, as its subject matter was collateral and merely served to bolster the testimony of the police officers … and was therefore prejudicial. The court also erred in entirely precluding cross-examination of Detective Peter Ellison with respect to prior bad acts. Under the circumstances of this case, these errors were not harmless (see CPLR 2002), as the evidence related directly to issues to be determined by the jury … , i.e., the officers’ credibility, the nature of the police stop, and the question of when the officers activated their emergency lights. Yun v Daley, 2025 NY Slip Op 03224, Second Dept 5-28-25

Practice Point: In the “reckless disregard” action against the police stemming from a high-speed chase, the police department rules should have been admitted in evidence because a violation of the rules is some evidence of negligence.

Practice Point: Here the defendant driver who collided with plaintiff’s decedent during the police chase was charged criminally. It was prejudicial error to allow a decision in the criminal matter in evidence in this “reckless disregard” action against the police. It was also error to preclude the cross-examination of a detective about prior bad acts.

 

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THE DEPARTMENT OF HEALTH’S BOARD FOR PROFESSIONAL MEDICAL CONDUCT PROPERLY REVOKED PETITIONER-RADIATION-ONCOLOGIST’S LICENSE TO PRACTICE MEDICINE; THE BOARD’S EXPERT OPINED THAT PETITIONER’S USE OF HIGHER “CURATIVE” RADIATION DOSES WHEN LOWER “PALLIATIVE” DOSES WERE APPROPRIATE FELL SHORT OF THE RELEVANT STANDARD OF CARE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, determined the Department of Health’s Board for Professional Medical Conduct properly revoked petitioner’s license to practice medicine. Petitioner, a radiation oncologist, was found to have deviated from the generally accepted standard of care by administering higher “curative” doses of radiation treatment when lower “palliative” doses were appropriate. The inquiry came down to a battle of experts about what the appropriate standard of care is. The petitioner argued that the Board’s expert improperly relied solely on clinical practice guidelines for that determination:

Petitioner’s contention that the Board’s expert relied solely on clinical practice guidelines overvalues the import of the following testimony:

Counsel: “[W]hat do you mean when you say standard of care?

Expert: “We have accepted guidelines that are published by multiple societies, they include our board, [the] American College of Radiology or [the] American Board of Radiology, [and] national comprehensive cancer networks and these are fairly descriptive, prescriptive guidelines for what a physician should do in the management of cases in very specific areas. When you deviate from those, it is considered to fall short of a standard.”

This answer by the Board’s expert, and others like it, should not be viewed in isolation. The Board’s expert was well-credentialed and had over 30 years of practice in the field of radiation oncology. Rather than merely citing the clinical practice guidelines as being the standard of care, he established the standard of care as he understood it based on his years of seeing patients. For each of the seven patients at issue, the Board’s expert identified the relevant medical and scientific principles underlying the standard of care and provided detailed explanations about why that standard best served patients and why deviating from it risked causing significant harm to those patients. Thus, respondent’s expert did not rely exclusively on clinical practice guidelines. Instead, as the Appellate Division concluded, he used those guidelines as “one link in the chain” of his evaluation process … . Matter of Won Yi v New York State Bd. of Professional Med. Conduct, 2025 NY Slip Op 03103, CtApp 5-22-25

 

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FOIL REQUESTS TO THE DEPARTMENT OF HEALTH FOR DISCLOSURE OF DECEDENTS’ MEDICAL HISTORY, CAUSE OF DEATH, LOCATION OF INTERMENT, AND WHETHER THEY WERE BURIED, CREMATED, OR MADE AN ANATOMICAL GIFT, CONSTITUTE AN UNWARRANTED INVASION OF PRIVACY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissenting opinion (three judges), determined certain categories of death-related information kept by the Department of Health (DOH) are exempt from disclosure pursuant to the Freedom of Information Law (FOIL):

The issue on appeal is whether certain information about decedents that is retained and indexed by the New York State Department of Health (DOH) is subject to disclosure under the Freedom of Information Law (FOIL). DOH already publishes an online database that contains a decedent’s first and last name, middle initial, date of death, age at death, gender, state file number, and residence code for deaths from 1957 to 1972. Petitioner requests disclosure of these same categories of information and any additional indexed categories of information, beyond those DOH has chosen to publish, for deaths from all available years through 2017.

Based on the record before us, we conclude DOH has shown that disclosure of a decedent’s medical history, cause of death, location of interment, and whether they were buried, cremated, or made an anatomical gift, would constitute an unwarranted invasion of personal privacy, and this information is therefore exempt from disclosure under FOIL. Matter of Reclaim the Records v New York State Dept. of Health, 2025 NY Slip Op 03102, CtApp 5-22-25

 

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A NYC LOCAL LAW REQUIRING REDUCTIONS IN GREENHOUSE GAS EMISSIONS FROM LARGE BUILDINGS IS NOT PREEMPTED BY THE STATE’S CLIMATE LEADERSHIP AND COMMUNITY PROTECTION ACT (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Cannataro, determined the NYC Local Law requiring reductions in greenhouse gas emissions from large buildings was not preempted the the state’s Climate Leadership and Community Protection Act:

The State Constitution grants local governments the power to enact “local laws not inconsistent with the provisions of th[e] constitution or any general law” relating to certain specified subjects, including the “safety, health and well-being of [the locality’s] persons or property” (NY Const, art IX, § 2 [c] [ii] [10]; see also Municipal Home Rule Law § 10 [1] [ii] [a] [12]). State law can preempt local law in one of two ways: either through conflict preemption, which occurs when the local and State laws directly conflict, or field preemption, which occurs “when a local government legislates in a field for which the State Legislature has assumed full regulatory responsibility” … . Plaintiffs have not argued conflict preemption; their sole claim before us is that the State has preempted the field of regulating greenhouse gas emissions. * * *

Rather than demonstrating an intent to preempt the field of regulating greenhouse gas emissions, the Climate Act recognizes that local government plays an important role in this area. The Act does not expressly prohibit local regulation of emissions. To the contrary, the Act’s legislative findings evince a sense of urgency concerning the implementation of mitigation measures in general and further express the legislature’s intent to “encourage other jurisdictions to implement complementary greenhouse gas reduction strategies” … . The Act also directs the Climate Action Council to identify and consider measures taken by other jurisdictions, including localities, when developing the Scoping Plan … . The absence of any statement that local efforts would be superseded is particularly significant here given that Local Law No. 97 was enacted before the Climate Act, as well as the recognized and longstanding involvement of localities in regulating matters of environmental concern affecting the health and safety of the community, such as air pollution … . Further reflecting the Act’s embrace of complementary local action, as noted above, it contains a savings clause stating that it does not relieve any entity from, as relevant here, compliance with other applicable local laws and regulations … . Glen Oaks Vil. Owners, Inc. v City of New York, 2025 NY Slip Op 03101, CtApp 5-22-25

Practice Point: Consult this opinion for insight into the criteria for “field preemption,” i.e., the state’s intention to regulate an area exclusively to the exclusion of any local laws or regulations. Here a NYC Local Law regulating greenhouse gas emissions from buildings was not preempted by the state’s Climate Act.

 

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