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TWO IRRELEVANT PROBATION CONDITIONS STRUCK, NON-CONSTITUTIONAL CHALLENGES TO PROBATION CONDITIONS NEED NOT BE PRESERVED; FACIAL CONSTITUTIONAL CHALLENGES SURVIVE A WAIVER OF APPEAL BUT MUST BE PRESERVED; AS-APPLIED CONSTITUTIONAL CHALLENGES ARE PRECLUDED BY THE WAIVER OF APPEAL (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined (1) non-constitutional challenges to probation conditions need not be preserved for appeal; (2) although the facial constitutional challenges to probation conditions survive a waiver of appeal, they were not preserved for appeal; (3), the as-applied constitutional challenges are precluded by the waiver of appeal; and (4) two probation conditions must be struck as not relevant to defendant’s criminal history or personal life. In addition, the decision identifies several probation conditions which were deemed properly imposed in this drug-possession case:

At the time of his arrest, defendant possessed 100 glassines of heroin and 50 vials of crack cocaine. Accordingly, the sentencing court providently deemed it “reasonably necessary” to order defendant to “[a]void injurious or vicious habits; refrain from frequenting unlawful or disreputable places; and . . . not consort with disreputable people” “to insure that the defendant will lead a law-abiding life or to assist him to do so” … . Based on defendant’s selling of heroin, the court also properly ordered him to “[w]ork faithfully at a suitable employment or pursue a course of study or vocational training … that can lead to suitable employment” and to “[s]ubmit proof of such employment, study or training … . For the same reason, the court providently required defendant to submit to testing for alcohol and illegal substances and to participate in substance abuse programming … . …

There is … no evidence to support requiring defendant, who has no children, to “[s]upport dependents and meet other family responsibilities” … . … [T]here is no evidence to support requiring defendant to “[r]efrain from wearing or displaying gang paraphernalia and having any association with a gang or members of a gang … “. People v Tompson, 2026 NY Slip Op 00325, First Dept 1-27-26

Practice Point: Consult this decision for insight into what probation conditions are appropriate for a drug-possession conviction.

Practice Point: Consult this decision for insight into the appealability of challenges to probation conditions.

 

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NINE OF ELEVEN PROBATION CONDITIONS STRICKEN AS NOT REASONABLY RELATED TO DEFENDANT’S REHABILITATION, INCLUDING THE CONDITION THAT DEFENDANT PAY THE MANDATORY SURCHARGE AND OTHER FEES (FIRST DEPT).

The First Department determined nine probation conditions must be stricken as not reasonably related to the defendant’s rehabilitation:

… [N]ine conditions were “not reasonably related to defendant’s rehabilitation, or necessary to ensure that he will lead a law-abiding life” (… Penal Law § 65.10[1]). There is no evidence that defendant had a history of gang affiliation or that his offense was connected to gang activity, and as such the condition related to a prohibition on gang affiliation … .

Considering defendant’s denial of drug and alcohol use, the Department of Probation’s assessment of defendant for substance abuse with no recommendation for further treatment, and the lack of any evidence defendant’s offense involved drug or alcohol use, conditions related to drug and alcohol testing and treatment … .

The condition of defendant’s probation requiring that he pay the mandatory surcharge and other fees … is not reasonably related to defendant’s rehabilitation, or necessary to ensure that he will lead a law-abiding life, and must be stricken … .

The remaining conditions that must be stricken … are not applicable to defendant or reasonably related to his rehabilitation … . People v Balogh, 2026 NY Slip Op 00323, First Dept 1-22-26

Practice Point: Here the probation condition that defendant pay the mandatory surcharge and other fees was stricken as not reasonably related to defendant’s rehabilitation.

 

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IN THIS SIDEWALK SLIP AND FALL CASE, DEFENDANT WAS EXEMPT FROM THE NYC SIDEWALK LAW (MAKING ABUTTING PROPERTY OWNERS RESPONSIBLE FOR SIDEWALK MAINTENANCE) BECAUSE HIS PROPERTY IS OWNER-OCCUPIED; HOWEVER THERE IS A QUESTION OF FACT WHETHER DEFENDANT IS LIABLE UNDER THE COMMON-LAW “SPECIAL USE” DOCTRINE; DEFENDANT USED THE SIDEWALK AS A DRIVEWAY FOR HIS GARAGE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, reversing summary judgment in favor of defendant property owner in this slip and fall case, determined there was a question of fact whither defendant was liable for a sidewalk defect bases upon defendant’s “special use” of the sidewalk as a driveway leading to defendant’s garage. Supreme Court properly found that defendant was not liable under the NYC Sidewalk Law, which makes abutting property owners responsible for sidewalk maintenance, because of the statutory exemption for owner-occupied properties. The statutory exception was not, however, a ground for summary judgment here because defendant could be liable under the common-law “special use” doctrine:

The parties agree that the defendant/owner made “special use” of the sidewalk by using it as a driveway … . Where the parties disagree is with respect to the scope of duty under the “special use” exception to liability, and whether it contains a causation requirement that is tied to the owner’s special use. We find that it does. * * *

… [A]n owner will only be liable for a defect on the abutting sidewalk if it is tied to his special use of the property, and not if it arises from a wholly unrelated cause … . * * *

… [T]here are three distinct bases for abutting owner liability at common law: (1) when the owner derives a “special use” from the subject area, (2) when the owner causes the defect, and (3) when a statute otherwise imposes liability. * * *

We are … not persuaded by plaintiff’s argument that it is fair and reasonable to expect an abutting owner who derives a special benefit from a public sidewalk to shoulder the full responsibility for maintaining that part of the sidewalk … . It would be more unfair to saddle a property owner with the general responsibility of maintaining the sidewalk abutting its driveway when its special use did not give rise to the defect. Prete v JJ Hoyt LLC, 2026 NY Slip Op 00325, First Dept 1-22-26

Practice Point: Even where, as here, an abutting property owner is exempt from the NYC statutory requirement to maintain the abutting sidewalk, the property owner may be liable for a defect in the sidewalk based upon the owner’s special use of the sidewalk, here as a driveway leading to the owner’s garage.

 

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THE COMPLAINT SHOULD HAVE BEEN DISMISSED BECAUSE PLAINTIFF HAD NOT YET BEEN APPOINTED ADMINISTRATOR OF PLAINTIFF’S DECEDENT’S ESTATE; PLAINTIFF IS FREE TO COMMENCE A NEW ACTION WITHIN SIX MONTHS PURSUANT TO CPLR 205 (A) UPON ISSUANCE OF LETTERS OF ADMINISTRATION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the complaint should have been dismissed because plaintiff had not yet been appointed administrator of the estate of her mother, but noted that if she obtains letters of administration within the six-month savings period under CPLR 205(a) a new action may be commenced:

“A personal representative who has received letters of administration of the estate of a decedent is the only party who is authorized to bring a survival action for personal injuries sustained by the decedent and a wrongful death action to recover the damages sustained by the decedent’s distributees on account of his or her death” … . “[T]he statutory requirement of a duly appointed administrator is in the nature of a condition precedent to the right to bring the suit” … . Thus, a “proposed administrator” who has not obtained letters of administration lacks capacity to bring an action to recover damages for personal injuries or wrongful death on behalf of a decedent’s estate … .

… [W]here, as here, a plaintiff lacks the capacity to bring an action to recover damages for personal injuries or wrongful death on behalf of a decedent’s estate because the plaintiff has not been issued letters of administration, the plaintiff may “remedy this defect by obtaining letters of administration within the six-month savings period provided under CPLR 205(a)” … . Estate of Joyce Moore v Nassau Operating Co., LLC, 2026 NY Slip Op 00241, Second Dept 1-21-26

 

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PLAINTIFF ALLEGED HE WAS KNOCKED TO THE GROUND BY DEFENDANTS’ DOG; DEFENDANTS DEMONSTRATED THEY WERE NOT AWARE OF AND SHOULD NOT HAVE BEEN AWARE OF THE DOG’S VICIOUS PROPENSITIES AND PLAINTIFF FAILED TO RAISE A QUESTION OF FACT TO THE CONTRARY; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this “plaintiff knocked to the ground by a dog” action should have been granted. Plaintiff was unable to raise a question of fact in the face of defendants’ proof they were not aware of, and should not have been aware of, the dog’s vicious propensities:

“To recover in strict liability for damages caused by a dog, a plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of the dog’s vicious propensities” … . “Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation” … . “Knowledge of vicious propensities may be established by evidence of, among other things, a prior similar attack or by evidence that the dog was known to growl, snap, or bare its teeth” … . In contrast, “‘[k]nowledge of normal canine behavior, such as running around, pulling on a leash and barking at another dog or passerby, barking at strangers, or chasing animals, will not support a finding of knowledge of vicious propensities'” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that they were not aware, nor should have been aware, that the dog had vicious propensities … . In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s affidavit raised only feigned issues of fact designed to avoid the consequences of his earlier deposition testimony … . Yi-Ching Liu v Chu, 2026 NY Slip Op 00284, Second Dept 1-21-26

Practice Point: Here plaintiff alleged he was injured when defendants’ dog knocked him to the ground. Consult this decision for insight into the proof a defendant dog-owner must present to demonstrate defendant was not not aware of, and should not have been aware of, a dog’s “vicious propensities.”

 

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HERE PLAINTIFF’S SIGNING A CONSENT FORM DID NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT IN THIS “LACK OF INFORMED CONSENT” MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this “lack of informed consent” medical malpractice case should not have been granted. The court noted that plaintiff’s signing a consent form was not enough to establish defendant’s entitlement to judgment as a matter of law:

“To establish a cause of action to recover damages based upon lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury'” … . Thus, “a defendant can establish entitlement to summary judgment by demonstrating that the plaintiff signed a detailed consent form after being apprised of alternatives and foreseeable risks, by demonstrating that a reasonably prudent person in the plaintiff’s position would not have declined to undergo the surgery, or by demonstrating that the actual procedure performed for which there was no informed consent was not a proximate cause of the injury” … . “If the defendant makes such a showing, the burden then shifts to the plaintiff to raise a triable issue of fact as to those elements on which the defendant met its prima facie burden of proof” … .

Here, the defendant failed to establish his prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging lack of informed consent … . “The mere fact that the plaintiff signed a consent form does not establish the defendant[‘s] prima facie entitlement to judgment as a matter of law” … , and the defendant’s submissions, including a transcript of the plaintiff’s deposition testimony, did not establish that the plaintiff was given sufficient information on the risks and alternatives regarding the materials used and the procedures performed … . Furthermore, the defendant failed to establish, prima facie, that the procedure performed for which there was no informed consent was not a proximate cause of the plaintiff’s injury. Rymer v Bernstein, 2026 NY Slip Op 00273, Second Dept 1-21-26

Practice Point: Here n this  “lack of informed consent” medical malpractice action, plaintiff’s signing a consent form did not entitle defendant to summary judgment as a matter of law.

 

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HERE THE NATURE OF INFANT PLAINTIFF’S INJURIES WAS PROBATIVE OF HOW THE ACCIDENT OCCURRED; PLAINTIFF ALLEGED DEFENDANTS’ VAN RAN OVER INFANT PLAINTIFF’S FOOT; DEFENDANTS ALLEGED INFANT PLAINTIFF WAS INJURED WHEN SHE FELL OFF HER BICYCLE; PLAINTIFFS’ MOTION FOR A UNIFIED TRIAL ON LIABILITY AND DAMAGES SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the denial of plaintiffs’ motion for a unified trial on liability and damages was an abuse of discretion. Plaintiffs alleged defendants’ van ran over infant plaintiff’s foot. Defendants alleged infant plaintiff was injured when she fell off her bicycle. Because the nature of the injury was relevant to proof of defendants’ liability, an unified trial was necessary:

“Unified trials should only be held ‘where the nature of the injuries has an important bearing on the issue of liability'” … . “‘The party opposing bifurcation has the burden of showing that the nature of the injuries necessarily assists the factfinder in making a determination with respect to the issue of liability'” … . “Although bifurcation is encouraged in appropriate settings, bifurcation is not an absolute given and it is the responsibility of the trial judge to exercise discretion in determining whether bifurcation is appropriate in light of all relevant facts and circumstances presented by the individual cases” … . Thus, “‘[t]he decision whether to conduct a bifurcated trial rests within the discretion of the trial court, and should not be disturbed absent an improvident exercise of discretion'” … .

Here, the plaintiffs and [defendants] offered conflicting accounts of how the infant plaintiff allegedly was injured, and the plaintiffs demonstrated that evidence regarding the nature of the infant plaintiff’s alleged injuries was probative in determining how the accident occurred … . I.R. v Santos, 2026 NY Slip Op 00270, Second Dept 1-21-26

Practice Point: It is a matter of judicial discretion whether to hold a bifurcated or a unified personal-injury trial on liability and damages. But where the nature of the injury is relevant to proving liability, it is an abuse of discretion to deny a motion for a unified trial.

 

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A TREE IS NOT A “BUILDING OR STRUCTURE” WITHIN THE MEANING OF LABOR LAW 240 (1); THEREFORE PLAINTIFF’S INJURY, INCURRED WHILE CUTTING A LIMB OFF A TREE, WAS NOT COVERED BY THE LABOR LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s injury while he was cutting a tree was not covered by Labor Law 240 (1). Plaintiff, a county parks department employee, argued that the tree cutting and removal was part of a larger construction project, i.e., setting up a holiday light show:

“Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites” … . The statute “applies where an employee is engaged ‘in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure'” … . “[T]ree cutting and removal, in and of themselves, are not activities subject to Labor Law § 240(1). Those activities are generally excluded from statutory protection because a tree is not a building or structure, as contemplated by the statute but, rather, ‘a product of nature'” … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 240(1) by submitting evidence demonstrating that, at the time of his accident, the plaintiff was engaged in tree cutting and removal, which “constituted routine maintenance outside of a construction or renovation context” … . In support of its motion, the defendant submitted, inter alia, transcripts of the deposition testimony of James Leonard, the director of general maintenance for the Department, and Russell Argila, a senior maintenance mechanic in the general maintenance department. Leonard testified that, on the date of the accident, the plaintiff and his coworkers were engaged in “thinning out, pruning trees, dead branches along . . . [a] hillside,” and that the tree the plaintiff was cutting at the time of his accident was part of that work. Argila testified that the tree crew, of which the plaintiff was a member, was “coming up there to clean it up, to do their normal tree work,” and denied that the purpose of the tree work was to prepare for the installation of the [light show]. Peterkin v Westchester Parks Found., Inc., 2026 NY Slip Op 00268, Second Dept 1-21-26

Practice Point: Here tree cutting and removal was deemed “routine maintenance” which was not covered by Labor Law 240 (1) because a tree is not a “building of structure.”

 

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THE TOWN OF BABYLON INDUSTRIAL DEVELOPMENT AGENCY PROPERLY DETERMINED THAT A SENIOR HOUSING PROJECT WAS ENTITLED TO FINANCIAL ASSISTANCE UNDER THE NEW YORK STATE INDUSTRIAL DEVELOPMENT AGENCY ACT (SECOND DEPT).

The Second Department, in a matter of first impression, in a full-fledged opinion by Justice Duffy, determined a senior housing project was entitled to financial assistance under the authority of the New York State Industrial Development Agency Act, affirming the ruling of the Town of Babylon Industrial Development Agency:

The issue on appeal, an issue of first impression for this Court, is whether the respondent Town of Babylon Industrial Development Agency (hereinafter the Babylon IDA) operated within its statutory authority pursuant to the New York State Industrial Development Agency Act (hereinafter the Act) (article 18-A of the General Municipal Law) when it adopted a resolution … determining that a planned affordable senior housing project is included in the type of projects eligible for certain financial assistance and benefits under the Act … . The petitioners appeal from a judgment of the Supreme Court … denying a petition pursuant to CPLR article 78 to review the resolution and dismissing the proceeding. … [W]e affirm on the ground that the court properly determined that the Babylon IDA operated within its statutory authority in granting financial assistance pursuant to the Act. … [T]he determination by the Babylon IDA that a plan to construct affordable senior housing constitutes a “project” as defined in General Municipal Law § 854(4) entitled to financial assistance and benefits under the Act because, among other things, the proposed construction will promote employment opportunities and combat economic deterioration, was rationally based and neither arbitrary and capricious or an abuse of discretion, nor affected by an error of law. The interpretation by the Babylon IDA of the relevant language of the Act comports with the plain meaning of the text contained in the Act as well as the legislative intent of the Act and related authority. Matter of Wyandanch Union Free Sch. Dist. v Town of Babylon Indus. Dev. Agency, 2026 NY Slip Op 00252, Second Dept 1-21-26

 

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IN THIS PARKING LOT SLIP AND FALL CASE, THE DEFENDANTS FAILED TO PROVE WHEN THE AREA WAS LAST INSPECTED OR CLEANED OF ICE AND SNOW; THEREFORE DEFENDANTS DID NOT PROVE A LACK OF CONSTRUCTIVE NOTICE OF THE ICY CONDTION AND SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall action and denying defendants’ summary judgment motion, determined defendants did not demonstrate they did not have constructive notice of the icy condition. To demonstrate a lack of constructive notice, a defendant must prove the area of the slip and fall was recently inspected or cleaned. Proof of general snow and ice removal practices is not enough:

“In moving for summary judgment in an action predicated upon the presence of snow or ice, the defendants [have] the burden of establishing, prima facie, that [they] neither created the snow or ice condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of that condition” … . “Accordingly, a property owner seeking summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” … .

Here, the defendants failed to establish, prima facie, that they lacked constructive notice of the alleged icy condition. The defendants’ maintenance employee provided only general information about his snow and ice removal practices, and he failed to specify when he last salted, removed ice from, or inspected the area where the plaintiff fell relative to the time of the accident … . Jackson v A M E Zion-Trinity Hous. Dev. Fund Co., Inc., 2026 NY Slip Op 00243, Second Dept 1-21-26

Practice Point: There used to be reversals of slip and fall cases on this ground every week for ten years or so. Now they are rare.

 

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