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THE DISMISSAL OF PLAINTIFF’S FEDERAL EMPLOYMENT DISCRIMINATION (RETALIATION) ACTION PURSUANT TO THE NEW YORK STATE HUMAN RIGHTS LAW PRECLUDED A RELITIGATION OF THE RETALIATION CLAIMS IN STATE COURT PURSUANT TO THE NEW YORK CITY HUMAN RIGHTS LAW (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Shulman, determined plaintiff’s employment discrimination (retaliation) cause of action pursuant to the New York City Human Rights Law (NYCHRL) was collaterally estopped by the dismissal of plaintiff’s action in federal court pursuant to the New York State Human Rights Law (NYSHRL):

Plaintiff asserts that his cooperation in [an] investigation [of another employee] provoked animus from his supervisors … who allegedly retaliated by reducing his business opportunities and ultimately terminating him.

Plaintiff alleged seven discrete adverse employment actions: (1) the artificial depression of his revenue; (2) denial of his request to transfer to a new position; (3) reassignment of his clients; (4) denial of funding to attend conferences; (5) a negative performance review; (6) no bonus in 2015; and (7) termination in August 2016. * * *

The City HRL is “uniquely broad and remedial,” requiring courts to construe its provisions “independently from similar or identical provisions of New York state or federal statutes” … . However, the requirement to interpret the City HRL under a more liberal lens does not relieve plaintiff of his burden to produce evidence of a retaliatory motive behind the adverse actions.

* * * Plaintiff’s arguments … invite relitigating facts already adjudicated by two federal courts after full and fair litigation. The federal courts expressly found no retaliatory animus after reviewing extensive evidence. … [T]his compels preclusion.

We emphasize that the City HRL’s liberal construction rule lowers the causation threshold, not the evidentiary one. Once the federal record established the absence of any retaliatory motive, no genuine factual issue remained even under the City HRL’s mixed-motive framework. To allow this case to go to a jury under the guise of liberal construction finds no support in the record. Abromavage v Deutsche Bank Sec. Inc., 2026 NY Slip Op 00052, First Dept 1-8-25

Practice Point: Here the federal courts’ dismissal of plaintiff’s employment discrimination (retaliation) claims pursuant to the New York State Human Rights Law (NYSHRL) precluded relitigation of those claims in state court pursuant to the New York City Human Rights Law (NYCHRL). Consult this opinion for insight into when collateral estoppel will be invoked to preclude a state action under the NYCHRL which raises retaliation claims identical to those dismissed by the federal courts under the NYSHRL. Although the NYCHRL lowers the causation threshold in comparison with the NYSHRL, it does not lower the evidentiary threshold.

 

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DEFENDANT DID NOT OPPOSE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION; THE JUDGE SHOULD NOT HAVE DENIED THE MOTION ON AN EVIDENTIARY GROUND NOT RAISED BY THE DEFENDANT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge in this foreclosure action should not have denied plaintiff’s motion for summary judgment on an evidentiary ground which was not raised by the defendant:

Plaintiff … moved for summary judgment, submitting an affirmation by counsel, to which the loan documents were annexed, and an affidavit from the same first vice president, which did not attach the subject loan documents. The affiant attested that defendant failed to make monthly payments and that defendant owed plaintiff $2,302,848.55 through June 15, 2024. He did not attest that he based his knowledge of the default and amount due on his review of any records. Defendant did not oppose plaintiff’s motion.

… Although it is the movant’s burden to establish its entitlement to summary judgment and the failure of the nonmovant to oppose summary judgment does not obviate the movant’s need to establish its prima facie case … , “a court should not examine the admissibility of evidence submitted in support of a motion for summary judgment unless the nonmoving party has specifically raised that issue in its opposition to the motion” … . This is because courts “are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made” … .

On its original motion, plaintiff established its prima facie entitlement to summary judgment by establishing, through the affidavit of a first vice president who was also the loan officer in charge of the loan’s collection and enforcement, the existence of the consolidated note, consolidated mortgage, and the existence and amount of defendant’s default … . Defendant did not oppose the motion and thus did not raise any objections as to the admissibility of plaintiff’s evidence, and the court should not have raised evidentiary objections sua sponte … . Valley Natl. Bank v Community Prot. Church of Co-op City, Inc., 2026 NY Slip Op 00036, First Dept 1-6-25

Practice Point: A judge should not, sua sponte, deny a motion for summary judgment on a ground not raised by the nonmoving party.

 

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HERE DEFENDANT’S NON-LAWYER HUSBAND REPRESENTED HER AT THE FORECLOSURE TRIAL; THE FACT THAT THE HUSBAND HAD A POWER OF ATTORNEY AUTHORIZING HIM TO ACT ON HIS WIFE’S BEHALF DID NOT AUTHORIZE HIM TO PRACTICE LAW; ALTHOUGH REPRESENTATION BY A NON-LAWYER DOES NOT RENDER THE PROCEEDINGS A “NULLITY,” HERE THE DEFENDANT WAS PREJUDICED BY HER HUSBAND’S REPRESENTATION AND THE JUDGE ERRED BY NOT ALLOWING THE HUSBAND TO TESTIFY; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the judgment of foreclosure and ordering a new trial, determined defendant was prejudiced by her non-attorney husband’s representation of her in the trial. Although the husband, John Chae, had a power of attorney authorizing him to act on his wife’s behalf, the power of attorney did not authorize him to practice law. In addition, Supreme Court erred by not allowing the husband to testify:

“‘New York law prohibits the practice of law in this State on behalf of anyone other than himself or herself by a person who is not an admitted member of the Bar, regardless of the authority purportedly conferred by execution of a power of attorney'” … . “The designation as an attorney-in-fact under General Obligations Law §§ 5-1502A-N does not confer upon a designated agent the right to provide representation as an attorney-at-law, and ‘cannot be read to displace the provisions of Judiciary Law § 478′” … .

In this case, none of the exceptions to Judiciary Law § 478 apply. Moreover, John Chae’s marriage to the defendant did not permit him to appear pro se on her behalf … . “As a general rule, the fact that a party has been represented by a person who was not authorized or admitted to practice law under the Judiciary Law—whether a disbarred attorney or a person practicing law without a license—does not create a ‘nullity’ or render all prior proceedings void per se” … . Here, however, the record demonstrates that the defendant was prejudiced as a result of being represented by an unauthorized attorney at the trial … . Further, the Supreme Court erred in precluding the defendant from testifying at the trial (see CPLR 321[a]). Ventus Props., LLC v Mo Chae, 2025 NY Slip Op 07429, Second Dept 12-31-25

 

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WHETHER FAMILY COURT HAD JURISDICTION OVER THIS FAMILY OFFENSE PROCEEDING DEPENDED ON WHETHER THERE WAS AN “INTIMATE RELATIONSHIP” BETWEEN PETITIONER AND RESPONDENT; THE EXISTENCE OF AN “INTIMATE RELATIONSHIP” IS A FACT-INTENSIVE INQUIRY WHICH, WHEN IN DISPUTE, REQUIRES A HEARING; MATTER REMITTED FOR THE HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined the judge should have ordered a hearing to determine whether the respondent had an “intimate relationship” with the petitioner such that a family offense proceeding alleging identify theft could be brought by the petitioner against the respondent. Whether an “intimate relationship” exist is a fact-intensive inquiry and when it is in dispute a hearing should be held:

Family Court’s jurisdiction in family offense proceedings, as defined by Family Ct Act § 812 (1), extends to enumerated offenses occurring between members of the same family or household, including those “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” … . While the statute does not define “intimate relationship,” it expressly excludes casual acquaintances and ordinary social or business associations … . In determining whether an intimate relationship exists, courts consider, among other things, “the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship” … . Additionally, “the relationship should be direct [and] not one based upon a connection with a third party” … . Whether an intimate relationship exists is a fact-intensive inquiry to be resolved on a case-by-case basis … . When the existence of an intimate relationship is in dispute, or the record is insufficient to permit determination as a matter of law, Family Court should conduct a hearing before dismissing the petition for lack of jurisdiction … . Matter of McCarra v Chiaramonte, 2025 NY Slip Op 07352, Third Dept 12-31-25

Practice Point: Family Court has jurisdiction over family offense proceedings involving unrelated parties if there exists an “intimate relationship” between the parties. Determining whether there is an “intimate relationship” is a fact-intensive inquiry usually requires a hearing.

 

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HOSPITAL SECURITY PERSONNEL WENT TO PLAINTIFF’S APARTMENT AND ESCORTED HER TO DEFENDANT HOSPITAL (THE UNDERLYING CIRCUMSTANCES WERE NOT DESCRIBED); PLAINTIFF WON A “FALSE IMPRISONMENT” SUIT AND WAS AWARDED $3.5 MILLION; THE MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED; PLAINTIFF’S SUBJECTIVE BELIEF SHE COULD NOT LEAVE THE APARTMENT OR THE VEHICLE TRANSPORTING HER TO THE HOSPITAL WAS INSUFFICIENT (SECOND DEPT).

The Second Department, setting aside the $3.5 million verdict, determined the evidence did not support the “false imprisonment” theory of liability. Plaintiff was escorted from her apartment to defendant hospital by hospital security personnel (the underlying circumstances are not explained in the decision). Plaintiff alleged she was confined in her apartment and in the vehicle in which she was taken to the hospital:

“‘A motion pursuant to CPLR 4404(a) to set aside a jury verdict and for judgment as a matter of law will be granted where there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial'” … . “[T]he question of whether a verdict was utterly irrational, entitling a movant to a directed verdict, involves a pure question of law” … . “‘In considering such a motion, the facts must be considered in a light most favorable to the nonmovant'” … .

“To prevail on a cause of action to recover damages for false arrest or false imprisonment, the plaintiff must demonstrate that the defendant intended to confine the plaintiff, that the plaintiff was conscious of the confinement, that the plaintiff did not consent to the confinement, and that the confinement was not privileged” … . * * *

The decedent’s subjective belief that she was confined in her apartment and that the security officers would not leave if asked is insufficient, without more, to establish an intent to confine … . Moreover, a threat to call the police does not constitute “detaining force necessary to establish the tort of false imprisonment” … . In addition, the fact that the decedent testified that the security officers parked their vehicle so as to block the decedent’s driveway is insufficient to establish confinement, absent other evidence that the decedent was incapable of departing by foot … .

… The decedent’s testimony as to her own subjective belief that, once she was in the vehicle, she felt that she “no longer had any rights and that [she] was in custody and . . . imagined what would happen if [she] tried to get out of the car,” is insufficient, without more, to establish an intent to confine … . Dender v North Shore Manhasset Hosp., 2025 NY Slip Op 07378, Second Dept 12-31-25

Practice Point: Consult this decision for an explanation of the criteria for setting aside a verdict awarding damages.

Practice Point: Consult this decision for insight into the proof required to support an allegation of “false imprisonment.”

 

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DEFENDANTS’ ATTENDANCE AT A MANDATORY SETTLEMENT CONFERENCE (CPLR 3408) IN THIS FORECLOSURE CASE DID NOT CONSTITUTE AN “APPEARANCE” IN THE ACTION; THEREFORE DEFENDANTS WERE NOT ENTITLED TO FIVE DAYS NOTICE (PURSUANT TO CPLR 3215 (G)) RE: PLAINTIFF’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Duffy, in a matter of first impression, determined defendants’ attendance at a mandatory settlement conference in this foreclosure action did not constitute an “appearance” such that defendants were entitled to five-days notice of an application for leave to enter a default judgment:

The issue on appeal, an issue of first impression for this Court, is whether a party’s attendance at a mandatory settlement conference pursuant to CPLR 3408 constitutes an appearance by a party for the purpose of CPLR 3215(g), which provides, among other things, that a party who has appeared in an action is entitled to at least five days’ notice of an application for leave to enter a default judgment. * * * Supreme Court properly determined that the defendants had not appeared in the action and, thus, the five-day notice provision set forth in CPLR 3215(g) was not applicable with respect to the plaintiff’s motion, inter alia, for leave to enter a default judgment against the defendants. HSBC Bank USA, N.A. v Saris, 2025 NY Slip Op 07287, Second Dept 12-24-25

Practice Point: A defendant’s attendance at a mandatory settlement conference (CPLR 3408) is not an “appearance” in the action and does not entitle defendant to five days notice (pursuant to CPLR 3215 (g)) re: plaintiff’s motion for leave to enter a default judgment.

 

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IN THIS CHILD VICTIMS ACT CASE, DEFENDANT COUNTY, WHICH HAD ASSUMED CUSTODY OF PLAINTIFF FOSTER CHILD, PLACED PLAINTIFF IN DEFENDANT SCHOOL WHERE SHE ALLEGEDLY WAS SEXUALLY ABUSED BY A TEACHER DAILY FOR SIX MONTHS; THE ALLEGED FREQUENCY OF THE ABUSE RAISED A QUESTION OF FACT WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF IT (SECOND DEPT).

he Second Department, reversing Supreme Court, determined this Child Victims Act (CPLR 214-g) action against the county and a school should not have been dismissed. The county had assumed custody over plaintiff, a foster child, and placed her in defendant school. Plaintiff alleged she was sexually abused by a teacher daily for six months. The alleged frequency of the abuse raised a question of fact whether defendants should have known of the abuse (constructive notice):

“By assuming legal custody over [a] foster child, the applicable government official steps in as the sole legal authority responsible for determining who has daily control over the child’s life” … . Therefore, “a municipality owes a duty to a foster child over whom it has assumed legal custody to guard the child from foreseeable risks of harm arising from the child’s placement with the municipality’s choice of foster [home]” … . “In order to find that a child care agency breached its duty to adequately supervise the children entrusted to its care, a plaintiff must establish that the agency had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . “Where the complaint alleges negligent supervision due to injuries related to an individual’s [*2]intentional acts, the plaintiff generally must allege that the entity knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable” … . M.F. v Putnam County, 2025 NY Slip Op 07283, Second Dept 12-24-25

Practice Point: In Child Victims Act cases alleging sexual abuse by a teacher, courts are finding that allegations of frequent abuse raise a question of fact about whether defendants should have been aware of it.

 

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A LAWSUIT ALLEGING NONCONSENSUAL SEXUAL TOUCHING PURSUANT TO THE ADULT SURVIVORS ACT (CPLR 214-J) NEED NOT ALLEGE PLAINTIFF’S INTIMATE PARTS WERE TOUCHED BY THE DEFENDANT TO STATE A CAUSE OF ACTION; IT IS ENOUGH THAT THE COMPLAINT ALLEGE PLAINTIFF WAS TOUCHED UNDER CIRCUMSTANCES WHICH AFFORDED THE DEFENDANT SEXUAL GRATIFICATION (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Wilson, in a matter of first impression, determined that a complaint under the Adult Survivors Act (CPLR 214-j) need not allege the defendant touched plaintiff’s intimate parts to state a cause of action for nonconsensual sexual touching. Here defendant, a doctor, allegedly touched plaintiff’s lower back while she was undressed and standing on a step stool facing away from the defendant to determine whether her kidneys were causing lower back pain. Although defendant did not touch plaintiff’s intimate parts, it was alleged the examination was motivated by sexual gratification:

The Adult Survivors Act (ASA) (CPLR 214-j) is a statute that permits adult survivors of sexual abuse to revive otherwise time-barred civil actions against alleged abusers arising from, among other things, conduct that would constitute a sexual offense under Penal Law article 130. The offense of forcible touching under Penal Law § 130.52(1) requires that there be a nonconsensual touching of “sexual or other intimate parts” of another person for the purpose of degradation or abuse of such person or for the purpose of gratifying the actor’s sexual desire. The offense of sexual abuse in the third degree under Penal Law § 130.55 requires nonconsensual “sexual contact.” This appeal provides our Court with an opportunity to address an issue of first impression in this judicial department regarding how narrow, or broad, we should construe the elemental concepts of sexual touching and sexual contact under the ASA. We hold that where, as here, the alleged nonconsensual touching or sexual contact was to a part of the body other than an anatomically sexual part, in the classic sense, these Penal Law offenses may still qualify as a predicate for an action pursuant to the ASA if the broader facts, manner, and circumstances of the touching or sexual contact involve intimacy or the alleged sexual gratification of the abuser. Aguilar v Wishner, 2025 NY Slip Op 07265, Second Dept 12-24-25

Practice Point: Here the complaint alleged defendant, a doctor, touched plaintiff’s lower back during a physical examination under circumstances which afforded defendant sexual gratification. That was sufficient to state a cause of action under the Adult Survivor’s Act. Under the Act, a plaintiff need not allege defendant touched plaintiff’s intimate parts.

 

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SUPREME COURT WENT BEYOND THE PARAMETERS OF THE REMITTAL BY ACCEPTING SUPPLEMENTAL ARGUMENTS ON NEW CASE LAW AND BY RENDERING A DECISION ON GROUNDS NOT INCLUDED IN THE REMITTAL; DISMISSAL OF THE COMPLAINT REVERSED, DEFAMATION CAUSES OF ACTION REINSTATED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined Supreme Court went beyond the parameters of the remittal. Supreme Court had dismissed the complaint. The Fourth Department reinstated several defamation causes of action:

We agree with plaintiff that the court impermissibly expanded the scope of the remittal. “[A] trial court, upon a remand or remittitur, is without power to do anything except to obey the mandate of the higher court, and render judgment in conformity therewith” … . This Court expressed our remittal directive in our order, and Supreme Court impermissibly expanded the scope of that remittal by accepting supplemental arguments on, inter alia, the effect of new case law relating to the retroactivity of the amended anti-SLAPP statute, and by basing its decision on grounds that were not included within the remittal .. . Trinh v Nguyen, 2025 NY Slip Op 07136, Fourth Dept 12-23-25

Practice Point: Here Supreme Court did not follow the mandate of the remittal by accepting new legal arguments and deciding the case on grounds not included in the remittal. Supreme Court’s dismissal of the complaint was reversed.

 

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THE FACT THAT THE CHILD LIVED WITH THE GRANDMOTHER FOR FOUR YEARS WAS AN “EXTRAORDINARY CIRCUMSTANCE” WHICH AFFORDED GRANDMOTHER STANDING TO SEEK CUSTODY (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined grandmother had demonstrated “extraordinary circumstances” such that she had standing to seek custody:

… [T]he grandmother met her burden of demonstrating other extraordinary circumstances with respect to both the mother and the father. The Court of Appeals has explained that “[i]n the absence of ‘surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances’, a parent may not be denied custody” … . Consistent with that principle of law, we have determined that “an extended disruption of custody as defined in [the statute] is merely ‘a specific example of extraordinary circumstances’ . . . and the statute was ‘not intended to overrule existing case law relating to third parties obtaining standing in custody cases’ ” … .

In determining whether extraordinary circumstances exist, “[n]o one factor should be viewed in isolation . . . , but rather the ‘analysis must consider the cumulative effect of all issues present in a given case . . . , including, among others, the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the . . . parent allowed such custody to continue without trying to assume the primary parental role’ ” … .

Here, we conclude that there are ” ‘other like extraordinary circumstances’ ” that give the grandmother standing to seek custody of the child … . Extraordinary circumstances arise from the fact that the now-six-year-old child has resided exclusively with the grandmother since she was two years old, the mother was incapable of caring for the child due to mental illness, and the father has not been significantly involved in the child’s life since birth. The father has had limited and sporadic visitation with the child and has never had the child with him overnight. He has not attended school events or medical appointments. Nor has he paid child support to either the mother or the grandmother. Finally, the child is emotionally attached to the grandmother and her half-brother, who has also been raised by the grandmother … . Matter of Morris v Smith, 2025 NY Slip Op 07133, Fourth Dept 12-23-25

Practice Point: Consult this decision for insight into the “extraordinary circumstances” which will afford a nonparent standing to seek custody. Here the fact that the child had resided with grandmother for four years was deemed such an “extraordinary circumstance.”

 

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