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PLAINTIFF’S OWN DEPOSITION TESTIMONY THAT HE CLEANED THE AREA WHERE HE STEPPED ON A NAIL PROVED DEFENDANT DID NOT NOT HAVE CONSTRUCTIVE NOTICE OF THE PRESENCE OF THE NAIL; THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant demonstrated it did not have constructive notice of the nail plaintiff stepped on requiring dismissal of the Labor Law 200 and common-law negligence causes of action. The twist here is plaintiff’s own deposition testimony that he had cleaned the area proved defendant’s lack of constructive notice:

Plaintiff expressly based his Labor Law § 200 and common-law negligence claims on a theory that he was injured when he stepped on a nail and that his injuries therefore arose from the condition of the workplace. Thus, defendant was required to establish prima facie that it neither caused or created the dangerous condition nor had actual or constructive notice of it … . Defendant sustained that burden by submitting plaintiff’s deposition testimony that he had swept the area before his lunch break, that everything was where he had left it and the floor was still clean when he returned from his lunch break, and that he never noticed the nail before the accident, which occurred after plaintiff’s lunch break … . Zyskowski v Chelsea-Warren Corp., 2025 NY Slip Op 02860, First Dept 5-8-25

Practice Point: Proof the area where plaintiff stepped on a nail was cleaned and inspected shortly before the injury demonstrated defendant did not have constructive notice of the presence of the nail, requiring dismissal of the Labor Law 200 and common-law negligence causes of action. The facts here are unusual in that it was plaintiff’s own testimony that he cleaned and inspected the area shortly before he stepped on the nail and did not notice the nail which proved defendant lacked constructive notice.

 

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DEFENDANT WAS ENTITLED TO THE ASSIGNMENT OF NEW COUNSEL BASED UPON COUNSEL’S REMARK THAT DEFENDANT’S REQUEST TO WITHDRAW HIS PLEA WAS UNWARRANTED; THE JUDGE SHOULD HAVE CONDUCTED AN INQUIRY ABOUT DEFENDANT’S REQUEST FOR SUBSTITUTE COUNSEL AND HIS REQUEST TO WITHDRAW HIS PLEA; MATTER REMITTED FOR ASSIGNMENT OF NEW COUNSEL AND A SUFFICIENT INQUIRY BY THE JUDGE (THIRD DEPT).

The Third Department, over a dissent, determined defendant’s appeal waiver was invalid, defendant demonstrated a conflict of interest on assigned counsel’s part, and the judge did not conduct a proper inquiry about defendant’s requests for new counsel and to withdraw his guilty plea. The Third Department vacated defendant’s sentence, not the conviction or plea, and remitted the matter for the assignment of new counsel and an inquiry about defendant’s request for substitute counsel and his request to withdraw his plea:

At sentencing, the Conflict Defender explained that she had “numerous phone conversations” with defendant about the grounds for his motion — namely, that assigned counsel’s communication of the People’s plea offer amounted to coercion; that defendant’s learning disability had prevented him from comprehending the consequences of his plea; and that the Conflict Defender was herself conflicted out of representing defendant. Based on her conversations with defendant, the Conflict Defender stated to County Court, “I don’t believe there is anything that warranted [defendant] withdrawing a plea, so I didn’t file a motion” … . “While apparently inadvertent, counsel’s remark . . . affirmatively undermined arguments her client wished the court to review, thereby depriving defendant of effective assistance of counsel” … , and the court should have relieved the Conflict Defender and assigned new counsel to represent defendant on the motion … .

We also agree with defendant that the allegations of assigned counsel’s ineffectiveness were sufficiently serious and factually specific to trigger County Court’s duty to consider his request for substitute counsel … . An indigent defendant’s right to court-appointed representation “does not encompass a right to appointment of successive lawyers at defendant’s option” … . “Rather, a defendant may be entitled to new counsel only upon showing good cause for a substitution, such as a conflict of interest or other irreconcilable conflict with counsel” … . * * *

In addition to alleging that assigned counsel coerced him into pleading guilty, defendant’s letters to County Court asserted that assigned counsel failed to visit him in jail or discuss his case with him; dodged his phone calls on specific dates; sent other attorneys to represent defendant who did not seem to be knowledgeable about the case; intended to oppose any motion defendant made to substitute counsel; and told defendant that his only other options for representation were to hire private counsel or represent himself. Further, defendant indicated that assigned counsel misadvised defendant about his sentencing exposure in a prior case, resulting in an appeal from that conviction on the ground of assigned counsel’s ineffectiveness. Defendant also alleged that assigned counsel was not relaying information or following his instructions in representing him in a separate, contemporaneous criminal action against him. Reading defendant’s allegations of ineffectiveness in the context of defendant’s purported history with assigned counsel, defendant’s complaints set out a plausible claim that the trust and communication between him and assigned counsel had broken down irretrievably … . Faced with these complaints, the court was required to “make at least a minimal inquiry, and discern meritorious complaints from disingenuous applications by inquiring as to the nature of the disagreement or its potential for resolution” … . People v Ubrich, 2025 NY Slip Op 02824, Third Dept 5-8-25

Practice Point: Here defense counsel’s remark that defendant’s request to withdraw his plea was unwarranted demonstrated a conflict of interest requiring the assignment of new counsel.

Practice Point: Here defendant raised serious issues about assigned counsel’s representation requiring the judge to consider his request for substitute counsel.

Practice Point: Here defendant raised serious issues in support of his request to withdraw his guilty plea which required an inquiry by the judge.

 

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BECAUSE THE INITIAL USE OF THE ROADWAY WAS PERMISSIVE, AND THERE WAS NO HOSTILE USE FOR THE REQUIRED TEN YEARS, THE CRITERIA FOR A PRESCRIPTIVE EASEMENT WERE NOT MET; HOWEVER BECAUSE THE INITIAL USE WAS PERMISSIVE AND CONTINUED FOR 50 YEARS, THE CRITERIA FOR AN EASEMENT BY ESTOPPEL WERE MET (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiffs did not have a prescriptive easement over defendants’ properties, but did have an easement by estoppel. Because there was an agreement among the original owners of the three adjacent camps to construct, maintain and use a roadway providing vehicular access to all three camps, and because there had been no hostile use of the roadway for ten years, the requirements for a prescriptive easement were not met. However plaintiffs were entitled to an easement by estoppel. The court noted that the Statute of Frauds does not apply to an easement by estoppel:

[Re; a prescriptive easement] … [B]ecause plaintiffs’ predecessors’ use of the extension was permissive, the element of hostility was negated … . Therefore, no adverse use could have arisen until there was the assertion of a hostile right … , which, at the earliest, occurred in 2018. We are presented with a permissive use that did not ripen into a prescriptive one for the time required … .

Yet, these same facts establish plaintiffs’ entitlement to an easement by estoppel … . “An easement by estoppel may arise when, among other things, a party reasonably relies upon a servient landowner’s representation that an easement exists” … . The uncontested existence of the agreement between the parties’ predecessors for the construction and use of the extension, together with the time and expense of not only the initial construction but, also, the continued 50-year maintenance thereof, demonstrates that plaintiffs “undertook . . . action[s] to their detriment in reasonable reliance upon a representation that they held an easement” … . Sardino v Scholet Family Irrevocable Trust, 2025 NY Slip Op 02828, Third Dept 5-8-25

Practice Point: Consult this decision for clear illustrations of the criteria for a prescriptive easement and an easement by estoppel.

 

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CONFINEMENT IN A RESIDENTIAL MENTAL HEALTH TREATMENT UNIT (RMHU) FOR 17 HOURS A DAY, WITH AT LEAST SEVEN HOURS OF OUT-OF-CELL TIME PER DAY, FOR MORE THAN THREE DAYS, DOES NOT VIOLATE THE HUMANE ALTERNATIVES TO LONG-TERM SOLITARY CONFINEMENT ACT (HALT ACT) (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined the sanctions imposed upon petitioner, an incarcerated person with serious mental illness, did not violate the Humane Alternatives to Long-Term Solitary Confinement Act (HALT Act) but did violate the Special Housing Unit Exclusion Law (SHU Exclusion Law):

… [P]etitioner remained in the RMHU [residential mental health treatment unit] where he received at least seven hours of out-of-cell time, therefore he was not in segregated confinement, which is defined as “the confinement of an incarcerated individual in any form of cell confinement for more than [17] hours a day” (Correction Law § 2 [23]). * * * Therefore, based on the foregoing, DOCCS [Department of Corrections and Community Supervision] did not violate Correction Law § 137 (6) (k) (ii) by placing petitioner in the RMHU longer than three days without the requisite findings under the HALT Act.

However … we do find that the disciplinary sanctions, as written, violated the SHU Exclusion Law as set forth in Correction Law § 401. To that end, Correction Law § 401 provides that “[a]n incarcerated individual . . . shall not be sanctioned with segregated confinement for misconduct [in an RMHTU], or removed from the unit and placed in segregated confinement or a[n RRU (residential rehabilitation unit)], except in exceptional circumstances where such incarcerated individual’s conduct poses a significant and unreasonable risk to . . . safety . . . and . . . has been found to have committed an act or acts defined in [Correction Law § 137 [k] [6] [ii]]” (Correction Law § 401 [5] …). “Because the statute is phrased in the disjunctive” … , DOCCS must find that exceptional circumstances existed and a Correction Law § 137 (6) (k) (ii) act occurred if either 1) the incarcerated individual is sanctioned with segregated confinement for misconduct on the unit or 2) the incarcerated individual is removed and placed in segregated confinement or an RRU. Here, the former applies as petitioner was sanctioned, in writing, with segregated confinement in the RMHU but was not found, in a written determination, to have committed an act pursuant to Correction Law § 137 (6) (k) (ii), a fact which is uncontested by either party. Thus, the written disciplinary sanction was in violation of the SHU Exclusion Law. Therefore, the disciplinary sanctions imposed upon petitioner must be annulled. Matter of Walker v Commissioner, N.Y. State Dept. of Corr. & Community Supervision, 2025 NY Slip Op 02834, Third Dept 5-8-25

 

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THE FACT THAT BOTH PLAINTIFF AND THE COW PLAINTIFF WAS WALKING FELL, WITH THE COW LANDING ON PLAINTIFF’S FOOT, DID NOT REQUIRE THAT PLAINTIFF SUE IN STRICT LIABILITY BASED UPON AN ANIMAL’S VICIOUS PROPENSITIES; PLAINTIFF RAISED A QUESTION OF FACT ABOUT WHETHER THE CAUSE OF THE FALL WAS THE SLIPPERY CONDITION OF THE FLOOR, NOT THE ACTIONS OF THE COW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether plaintiff slipped and fell because of the condition of the floor, and not because of the actions of an animal, a cow which plaintiff was walking back to her stall when both he and the cow fell:

The plaintiff, who was working as a farrier, went to the defendant Bobby Wickham’s farm to service his cows. The cement area that the plaintiff had to traverse to transport each cow to and from her stall allegedly was covered with feces and urine. When the plaintiff complained to Wickham that the floor was very slippery, Wickham allegedly stated that he did not have sand to put down on the ground. The plaintiff serviced six or seven cows without incident. While he was working, the plaintiff saw cows slip on the floor. After servicing the cow at issue, the plaintiff was walking the cow back to her stall when he slipped and fell on the floor. The cow then fell on top of the plaintiff’s right foot.

… Wickham moved for summary judgment dismissing the complaint insofar as asserted against him, contending that the sole means of recovery of damages for injuries caused by a domestic animal was upon a theory of strict liability, whereby the plaintiff must establish that the domestic animal had vicious propensities and that the owner knew or should have known of the domestic animal’s vicious propensities, which the plaintiff did not allege here. …

* * * The evidence submitted raised triable issues of fact as to whether the plaintiff allegedly slipped and fell due to the condition of the floor and whether the cow’s subsequent contact with the plaintiff was causally related to the condition of the floor. Gomez v Wickham, 2025 NY Slip Op 02760, Second Dept 5-7-25

Practice Point: Just because a plaintiff’s injuries are caused by an animal, here a cow falling on plaintiff, does not require that plaintiff’s lawsuit be brought under animal law (strict liability based on the animal’s vicious propensities). Plaintiff successfully alleged, under a negligence theory, that both he and the cow fell because of the slippery condition of the floor.

 

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PLAINTIFF SUBMITTED AN AFFIDAVIT TO REMEDY DEFECTS IN THE COMPLAINT IN RESPONSE TO DEFENDANTS’ MOTION TO DISMISS; SUPREME COURT SHOULD HAVE CONSIDERED THE AFFIDAVIT; THE MOTION TO DISMISS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the complaint alleging that defendants improperly influenced the decedent to name them as beneficiaries of two bank accounts should not have been dismissed. The allegations in the complaint were supplemented by plaintiff’s affidavit. The Second Department noted that the affidavit should have been considered in assessing the sufficiency of the complaint:

The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint on the ground, among others, that it failed to state a cause of action. In opposition to the motion, the plaintiff submitted an affidavit in which she made statements to supplement the causes of action alleged in the complaint. … Supreme Court granted the defendants’ motion. …

“On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), a court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “‘Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss'” … . Where a cause of action is based upon, inter alia, fraud, breach of trust, or undue influence, the circumstances constituting the wrong shall be stated in detail (see CPLR 3016[b]).

Here, the Supreme Court should have considered the plaintiff’s affidavit to remedy any defects in the complaint when it assessed the defendants’ motion … . Rauch v Rauch, 2025 NY Slip Op 02802, Second Dept 5-7-25

Practice Point: Here the court held that an affidavit submitted by the plaintiff to remedy defects in the complaint in response to a motion to dismiss should have been considered by the motion court. The complaint as supplemented by the affidavit was deemed to state a cause of action for undue influence.

 

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A PROPER FOUNDATION WAS NOT PROVIDED FOR THE ADMISSIBILITY OF SOME BUSINESS RECORDS RELIED ON BY THE REFEREE IN THIS FORECLOSURE ACTION; THE MOTION TO CONFIRM THE REFEREE’S REPORT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to confirm the referee’s report in this foreclosure action should have been denied. A proper foundation had not been provided for the admissibility of some of the business records relied upon by the referee:

Generally, the report of a referee should be confirmed whenever the findings are substantially supported by the record … . Here, the referee computed the amount due to the plaintiff based upon the affidavit of an employee of the plaintiff and certain business records. Although the affiant purported to have personal knowledge of the amounts due and owing on the loan, she averred that this was based upon her review of the plaintiff’s records. “[A] review of records maintained in the normal course of business does not vest an affiant with personal knowledge” … . The affiant also failed to establish a proper foundation for the admission of all of the business records relied upon (see CPLR 4518[a]). “A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” … . Here, the referee’s findings with respect to the total amount due on the note were premised upon a payment history beginning in 2009. The plaintiff, however, did not acquire the note until 2013. The plaintiff’s affiant failed to establish a proper foundation for the admission of the records from 2009 to 2013 … , and, therefore, the referee’s report was not substantially supported by the record. Nationstar Mtge., LLC v Lewis, 2025 NY Slip Op 02789, Second Dept 5-7-25

Practice Point: Reversals in foreclosure proceedings often stem from the failure to provide a proper foundation for the admissibility of business records relied upon by the parties and/or the referee.​

 

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THE EIGHT-AND-A-HALF-MONTH DELAY BETWEEN THE JUVENILE’S ARREST AND THE FILING OF THE JUVENILE DELINQUENCY PETITION DEPRIVED THE JUVENILE OF DUE PROCESS OF LAW (SECOND DEPT).

The Second Department, reversing the order of disposition in this juvenile delinquency proceeding, determined the juvenile, Adonis J W, was deprived of his constitutional right to due process by the eight-and-a-half-month delay between his arrest and the filing of the petition:

“The due process right to a speedy trial extends to respondents in juvenile delinquency proceedings” … . “An unreasonable delay in prosecuting a juvenile delinquency proceeding following a respondent’s arrest can constitute a violation of due process” … . “To determine whether a respondent’s due process rights were violated by a delay in filing, the court must engage in a balancing of factors, including the extent of the delay, the reason for the delay, the nature of the underlying charge, whether there has been an extended period of pretrial incarceration, and whether there is any indication of prejudice to the defense resulting from the delay” … . “When applying this balancing test, ‘courts must remain acutely cognizant of the goals, character and unique nature of juvenile proceedings'” … . “‘[T]he central goal of any juvenile proceeding—rehabilitation of the juvenile through prompt intervention and treatment—can seem trivialized when a presentment agency delays the filing of a petition'” … .

Here, while the charges were serious and Adonis J. W. did not demonstrate any actual prejudice to his defense attributable to the delay in filing the petition, the presentment agency failed to establish a legitimate reason for the delay. Additionally, the ultimate goal of promptly treating and rehabilitating Adonis J. W. was not furthered by permitting a fact-finding hearing on the petition following the unjustified delay. Matter of Adonis J. W., 2025 NY Slip Op 02788, Second Dept 5-7-25

Practice Point: The constitutional speedy trial rights apply to juvenile delinquency proceedings.

 

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PETITIONER JUDGMENT-CREDITOR WAS ENTITLED TO THE TURNOVER OF CERTAIN REAL PROPERTY WHICH HAD BEEN FRAUDULENTLY TRANSFERRED TO A TRUST BY THE RESPONDENT JUDGMENT-DEBTORS, AS WELL AS THE CONTENTS OF RESPONDENTS’ SAFETY DEPOSIT BOX (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner was entitled to real property which was fraudulently transferred by respondents to a trust, as well as to the contents of respondents’ safety deposit box, to satisfy a judgment against respondents in the approximate amount of $338,000:

… [P]etitioner commenced this proceeding pursuant to CPLR article 52, seeking … the turnover of a safety deposit box maintained by the respondents Zakhar Brener and Ninel Krepkina and of certain residential real property owned by the respondent B and K Trust. * * *

… [P]etitioner established her prima facie entitlement to judgment as a matter of law on the cause of action seeking relief pursuant to Debtor and Creditor Law former § 273 by submitting evidence that Brener was insolvent at the time of the conveyance of the property, which was made without fair consideration … .  * * *

… [P]etitioner established her prima facie entitlement to judgment as a matter of law on the cause of action seeking relief pursuant to Debtor and Creditor Law former § 276. “Pursuant to Debtor and Creditor Law former § 276, every conveyance made with actual intent to hinder, delay, or defraud either present or future creditors is fraudulent. The requisite intent required by this section need not be proven by direct evidence, but may be inferred from the circumstances surrounding the allegedly fraudulent transfer” … . “In determining whether a conveyance was fraudulent, the courts consider the existence of certain common ‘badges of fraud,’ which include ‘a close relationship between the parties to the alleged fraudulent transaction; a questionable transfer not in the usual course of business; inadequacy of the consideration; the transferor’s knowledge of the creditor’s claim and the inability to pay it; and retention of control of the property by the transferor after the conveyance'” … . “A prime example of this type of fraud is where a debtor transfers his property to another while retaining the use thereof so as to continue . . . free from the claims of creditors” … . Here, the petitioner submitted, among other things, the Brener respondents’ answer, wherein they admitted that Brener continued to occupy and use the property with Krepkina. …

… [P]etitioner established her prima facie entitlement to judgment as a matter of law on the cause of action to direct Chase Bank to turn over of the contents of the safe deposit box maintained by Brener and Krepkina by submitting a letter establishing that Brener and Krepkina jointly held a safe deposit box at one of Chase Bank’s branches in Brooklyn … . Matter of Schiffman v Affordable Shoes, Ltd., 2025 NY Slip Op 02786, Second Dept 5-7-25

Practice Point: Consult this decision for a concise description of a CPLR Article 52 turnover proceeding by a judgment creditor against judgment debtors based in part upon respondents’ fraudulent transfer of real property to avoid creditors (Debtor and Creditor Law sections 273 and 276).

 

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THE 90-DAY TIME-LIMIT FOR FILING AND SERVING A NOTICE OF CLAIM AGAINST THE CITY FOR WRONGFUL DEATH RUNS FROM THE APPOINTMENT OF AN ADMINISTRATOR; HERE THE NOTICE OF CLAIM WAS TIMELY FOR THE WRONGFUL DEATH CAUSE OF ACTION; HOWEVER THE 90-DAY TIME-LIMIT FOR THE CAUSES OF ACTION FOR CONSCIOUS PAIN AND SUFFERING AND PREIMPACT TERROR RUNS FROM THE DATE OF THE ACCIDENT; THE NOTICE OF CLAIM SHOULD HAVE BEEN REJECTED AS UNTIMELY FOR THOSE TWO CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the application to deem a notice of claim timely served for the conscious pain and suffering and preimpact terror causes of action in this pedestrian-bus-accident wrongful-death case should not have been granted. General Municipal Law 50-e provides that a notice of claim alleging wrongful death is timely filed and served within 90 days of the appointment of an administrator; that requirement was met here. The notice of claim was therefore timely for the wrongful death cause of action. However the wrongful-death notice-of-claim provision in General Municipal Law 50-e does not apply to the conscious pain and suffering and preimpact terror causes of action. The Second Department held that the notice of claim should have been rejected as untimely for those two causes of action:

Here, [defendant] NYCTA [New York City Transit Authority] did not acquire actual knowledge of the essential facts constituting the claims of conscious pain and suffering or preimpact terror within a reasonable time after the expiration of the 90-day statutory period … . “As a general rule, knowledge of an accident or occurrence by a municipality’s police or fire department cannot be imputed to another public or municipal corporation” … . Furthermore, the case file did not indicate that anyone associated with NYCTA acquired actual knowledge of essential facts constituting the subject claims.

As to the other relevant factors, the petitioner failed to demonstrate a reasonable excuse for her failure to timely serve a notice of claim … . The petitioner also failed to meet her initial burden of presenting “some evidence or plausible argument” … to support a finding that NYCTA will not be substantially prejudiced by the approximate six-month delay from the expiration of the 90-day statutory period until the commencement of this proceeding … . Matter of Egalite v New York City Tr. Auth., 2025 NY Slip Op 02773, Second Dept 5-7-25

Practice Point: A notice of claim for wrongful death is timely filed and served within 90 days of the appointment of an administrator pursuant to General Municipal Law 50-e (a) (1). However, that statutory provision does not apply to causes of action for conscious pain and suffering and preimpact terror. Notices of claim for those causes of action must be filed and served within 90 days of the accident.

 

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