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THE DEFENSE MOTION TO SET ASIDE THE JURY VERDICT AND REINSTATE COUNTERCLAIMS SHOULD NOT HAVE BEEN GRANTED, CRITERIA EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, determined Supreme Court should not have reinstated defendants’ counterclaims which were rejected by the jury after a lengthy trial. The First Department explained the criteria for setting aside a jury verdict pursuant to CPLR 4404(a):

Defendants are not entitled to reinstatement of their counterclaims, which were each unequivocally rejected by the jury after a lengthy trial. Pursuant to CPLR 4404(a), a court may set aside a jury verdict, or order a new trial, where “the verdict is contrary to the weight of the evidence,” or “in the interest of justice.” In making this determination, the court must proceed with caution, because “in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict” … . Thus, a verdict should only be set aside if the evidence is so in favor of the moving party that the verdict “could not have been reached on any fair interpretation of the evidence” … , or in the interests of justice due to “errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise” … . Beach v Touradji Capital Mgt., LP, 2026 NY Slip Op 05231, First Dept 9-3-26

Practice Point: Consult this decision for insight into the criteria for setting aside a jury verdict. Here the jury’s rejection of defendants’ counterclaims should not have been disturbed.​

 

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IN THIS RENT RESET ARBITRATION, THE UMPIRE COMMUNICATED DIRECTLY WITH LANDLORD’S COUNSEL, CREATING THE APPEARANCE OF IMPROPRIETY; THE AWARD WAS THEREFORE VACATED (FIRST DEPT).

The First Department, reversing Supreme Court, determined communications between an umpire and the landlord’s counsel created the appearance of impropriety requiring the vacation of the arbitration award in the rent reset proceeding:

… [T]he tenants exercised their second extension option under the lease … . The parties attempted to negotiate a new annual net rent, but upon reaching an impasse, they proceeded to arbitration before the American Arbitration Association (the AAA). That arbitration concluded with a one-week hearing that resulted in a final award largely in the landlord’s favor. * * *

… [T]he umpire created an appearance of impropriety when he directly communicated with the landlord’s counsel about a paid offer to serve as a neutral umpire in the [another arbitration] and did so without including the tenants in the conversation. Further, the umpire’s subsequent attempt to remedy this issue with a disclosure to the tenants failed to cure his misconduct. Indeed, the disclosure was incomplete as it was the landlord’s counsel, not the umpire, who informed the tenants of the direct communication with the landlord’s counsel. To compound matters, the umpire then attempted to bargain with the tenants — offering to trade his rejection of the offer in exchange for the cooperative withdrawing its recusal application. Ultimately, although he did eventually decline the offer, the umpire’s actions irreversibly and improperly implicated the “integrity of the process” … . Matter of 57th & 6th Ground LLC v Carnegie House Tenants Corp., 2026 NY Slip Op 05230, First Dept 9-3-26

Practice Point: In this arbitration of a rent reset, the umpire communicated directly with landlord’s counsel, creating the appearance of impropriety. The award was therefore vacated.

 

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HERE IN THIS BUS-TRAFFIC-ACCIDENT CASE, THE DEFENDANTS ADMITTED THE BUS DRIVER WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT; A NEGLIGENT-HIRING-AND-RETENTION CAUSE OF ACTION, THEREFORE, WAS NOT AVAILABLE TO THE PLAINTIFFS; THE PLAINTIFFS WERE NOT ENTITLED TO DISCOVERY OF THE DRIVER’S PERSONNEL FILE OR THE POLICY MANUAL FOR DRIVER RETENTION AND TRAINING BECAUSE BECAUSE THOSE DOCUMENTS WERE NOT RELEVANT TO THE EMPLOYER’S LIABILITY UNDER RESPONDEAT SUPERIOR (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this bus-traffic-accident case, determined that neither the bus driver’s personnel file nor the policy manual relating to the retention and training of the bus driver were discoverable. Those records would only be relevant to an action for negligent hiring and retention, which (generally) is not available when the suit against the driver’s employer is based upon respondeat superior:

Generally, “where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior, and a plaintiff may not proceed with a cause of action to recover damages for negligent hiring and retention” … . Thus, since here, the defendants admit that [the driver] was acting within the scope of his employment at the time of the accident, neither his personnel file nor the portions of the defendants’ policy manual relating to the retention or training of [the driver] are discoverable … . In addition, the plaintiff failed to show that any alleged remaining portions of the policy manual “would yield matter material and necessary to the prosecution or defense of the action” … . Lewis v New York City Tr. Auth., 2026 NY Slip Op 05175, Second Dept 9-2-26

​Practice Point: Where the employer admits the employee was acting within the scope of his employment at the time of the accident, the employer is liable for the negligence of the employee under a theory of respondeat superior. Generally, in that circumstance a negligent hiring and retention cause of action is not available to the plaintiff.

 

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ELECTRONIC FILING OF A MOTION TO CONFIRM A REFEREE’S REPORT AND FOR LEAVE TO ENTER A DEFICIENCY JUDGMENT IS NOT IN ACCORDANCE WITH THE SERVICE METHOD CODIFIED IN RPAPL 1371(2); HERE THE IMPROPER SERVICE WAS A BAR TO ENTRY OF THE DEFICIENCY JUDGMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this foreclosure action, determined the electronic filing of the motion to confirm the referee’s report and for leave to file a deficiency judgment was not proper service pursuant to RPAPL 1371(2). The improper service constituted a complete bar to the entry of a deficiency judgment:

The plaintiff … moved to confirm a referee’s report of sale and for leave to enter a deficiency judgment against Newman in the sum of $1,222,732.14. … Supreme Court granted the plaintiff’s motion. A judgment was entered … in favor of the plaintiff … . …

RPAPL 1371(2) specifies the manner in which notice of such motions shall be served, and upon whom the notice shall be served, as follows: “Simultaneously with the making of a motion for an order confirming the sale, . . . the party to whom such residue shall be owing may make a motion in the action for leave to enter a deficiency judgment upon notice to the party against whom such judgment is sought or the attorney who shall have appeared for such party in such action. Such notice shall be served personally or in such other manner as the court may direct.”

Here, the plaintiff’s electronic filing of the motion papers on the New York State Courts Electronic Filing System did not constitute proper service in accordance with RPAPL 1371(2) … Consequently, “‘this constitutes a complete bar to the entry of a deficiency judgment'” … . 11-36 31st Ave. Lender, LLC v RM Newman, LLC, 2026 NY Slip Op 05151, Second Dept 9-2-26

Practice Point: Electronic filing of a motion to confirm a referee’s report and for leave to enter a default judgment is improper service. The correct method of service is codified in RPAPL 1371(2).

 

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HERE THE MEDICAL RECORDS SUGGESTED INJURY ATTRIBUTABLE TO MEDICAL MALPRACTICE SO THE HOSPITAL WAS DEEMED TO HAVE HAD TIMELY NOTICE OF THE NATURE OF THE MALPRACTICE CLAIM; PLAINTIFF’S MOTION TO DEEM THE LATE NOTICE OF CLAIM TIMELY SERVED NUNC PRO TUNC SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to deem the late notice of claim timely served nunc pro tunc should have been granted in this medical malpractice action:

On August 31, 2015, the plaintiff, Estefani Tenezaca, gave birth to the infant A.J.L. (hereinafter the infant) at Elmhurst Hospital Center (hereinafter Elmhurst), a facility controlled by the defendant. The infant was born prematurely at 30 weeks gestation and was treated at Elmhurst until September 16, 2015, when she was transferred to another hospital.

In July 2016, the plaintiff, as parent and natural guardian of the infant, served a notice of claim on the defendant, alleging, among other things, medical malpractice in the defendant’s treatment of the infant. * * *

The plaintiff’s experts opined that the infant suffered a massive bilateral parenchymal hemorrhage as a result of the treatment documented in Elmhurst’s records. * * *

Inasmuch as the Elmhurst records, upon independent review, suggested injury attributable to medical malpractice, those records provided the defendant with actual knowledge of the essential facts constituting the claim … .  Additionally, the plaintiff made an initial showing that the defendant would not suffer any prejudice by the delay in serving a notice of claim, and the defendant failed to rebut that showing with particularized indicia of prejudice … . The plaintiff also established a reasonable excuse for her failure to timely serve a notice of claim … . Tenezaca v New York City Health & Hosps. Corp., 2026 NY Slip Op 05208, Second Dept 9-2-25

Practice Point: In this medical malpractice action plaintiff moved to deem the late notice of claim timely served. The medical records suggested injury attributable to malpractice. Therefore the hospital was deemed to have had timely notice of the nature of the claim.

 

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THE PETITIONERS DID NOT HAVE STANDING TO CHALLENGE THE VILLAGE’S SEQRA NEGATIVE DECLARATION WHICH ALLOWED THE CONSTRUCTION OF 98 APARTMENTS, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the petitioners did not have standing to challenge the negative declaration issued by the village respondents pursuant to the State Environmental Quality Review Act (SEQRA). The village thereby approved the construction 98 apartment units. The Second Department explained the criteria for standing in this context:

“Standing to bring a SEQRA challenge is a threshold issue, and the burden of establishing standing is on the party seeking review of governmental action on the basis of alleged procedural and substantive SEQRA violations” … . “To establish standing under SEQRA, a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA” … . “Economic injury is not by itself within the zone of interests which SEQRA seeks to protect” … .

Here, the petitioners alleged environmental injuries that either were economic in nature … , were not different from those that would be suffered by the public at large … , or were too speculative and conjectural to demonstrate an actual injury-in-fact … . Such allegations are insufficient to confer standing to challenge the adequacy of the Cedarhurst respondents’ environmental review of the overlay district under SEQRA. Contrary to the petitioners’ contention, their property was not sufficiently close in proximity to the proposed development so as to confer a presumption of an injury-in-fact as an adjacent property owner … . Board of Educ. of the Lawrence Union Free Sch. Dist. v Incorporated Vil. of Cedarhurst, 2026 NY Slip Op 05154, Second Dept 9-2-26

Practice Point: Consult this decision for insight into the criteria for standing to challenge a municipality’s SEQRA negative declaration. Here the village approved the construction of 98 apartments and the petitioners did not have standing to challenge the approval.

 

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THE JURY VERDICT IN THIS REAR-END COLLISION TRIAL WAS IRREVOCABLY INCONSISTENT AND SHOULD HAVE BEEN SET ASIDE; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the jury verdict in this rear-end collision case was “irrevocably inconsistent” and must be set aside. The only nonnegligent explanation offered by the defendant was that he suffered a medical emergency just before the collision. On the verdict form the jury answered “no” to the question whether defendant suffered a medical emergency. But the jury also answered “no” to the question whether defendant was negligent in the operation the vehicle:

Supreme Court should have granted that branch of the plaintiff’s motion which was pursuant to CPLR 4404(a) to set aside the verdict as against the weight of the evidence and for a new trial. “Where, as here, the jury verdict ‘is irreconcilably inconsistent, that verdict must be set aside as contrary to the weight of the evidence'” … . Although the plaintiff did not object to the jury verdict as inconsistent prior to the discharge of the jury, thus failing to preserve an issue of law … “‘there is no preservation requirement for weight of the evidence review'” … .

Here, since the only nonnegligent explanation for the accident provided by the defendants was an alleged sudden medical emergency, it was irreconcilably inconsistent for the jury to answer “No” when asked whether the decedent “experience[d] a sudden, unforeseen medical emergency such as a seizure prior to the accident … , and was his operation of the vehicle reasonable under the circumstances,” while also responding “No” when asked whether the decedent was “negligent in the operation of the vehicle.” Accordingly, there must be a new trial on the issue of liability. Pitt v Rosenblatt, 2026 NY Slip Op 05200, Second Dept 9-2-26

​Practice Point: Here the “irrevocably inconsistent” jury verdict was against the weight of the evidence and should have been set aside. The issue need not be preserved for appeal.

 

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HERE IN THIS FORECLOSURE ACTION, PLAINTIFF FILED A REQUEST FOR JUDICIAL INTERVENTION SEEKING A SETTLEMENT CONFERENCE WITHIN ONE YEAR OF DEFENDANT’S DEFAULT; THEREFORE PLAINTIFF NEED NOT PROVIDE A REASONABLE EXCUSE FOR THE DELAY OR DEMONSTRATE A MERITORIOUS CAUSE OF ACTION TO AVOID DISMISSAL FOR ABANDONMENT PURSUANT TO CPLR 3215(C); ANY FURTHER DELAYS AFTER THE REQUEST FOR JUDICIAL INTERVENTION ARE IRRELEVANT (SECOND DEPT).

The Second Department, reversing Supreme Court’s sua sponte dismissal of the complaint in this foreclosure action, determined plaintiff did not abandon the action because it filed a request for judicial intervention seeking a settlement conference within one year of defendant’s default:

Pursuant to CPLR 3215(c), “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed.” “To avoid dismissal pursuant to CPLR 3215(c), it is not necessary for a plaintiff to actually obtain a default judgment within one year of the default. Rather, as long as ‘proceedings’ are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal” … . The filing of a request for judicial intervention that seeks a residential mortgage foreclosure settlement conference as mandated by CPLR 3408 constitutes the taking of proceedings under CPLR 3215(c) … . * * *

Since the plaintiff demonstrated that it initiated proceedings for the entry of a judgment of foreclosure and sale within one year after [the] default, it was not required to proffer a reasonable excuse or demonstrate a potentially meritorious cause of action … . Furthermore, “once the plaintiff established that it had initiated proceedings for the entry of a judgment within one year after the defendants’ default, it was in compliance with CPLR 3215(c) and it was not required, under the plain language of that subdivision, to account for any additional periods of delay that may have occurred subsequent to the initial one-year period contemplated by CPLR 3215(c)” … . Aurora Loan Servs., LLC v Miller, 2026 NY Slip Op 05153, Second Dept 9-2-26

Practice Point: If, in a foreclosure action, plaintiff files a request for judicial intervention and a settlement conference within one year of defendant’s default, plaintiff need not provide an excuse for the delay or demonstrate a meritorious cause of action to avoid dismissal of the complaint as abandoned pursuant to CPLR 3215(c). Once proceedings have been taken within one year of default, any further delays after the taking of proceedings are irrelevant to any claim of abandonment.

 

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PETITIONERS DID NOT LEARN OF THE BABY’S MEDICAL CONDITION UNTIL SIX MONTHS AFTER THE INDUCED LABOR; PETITIONERS REQUESTED LEAVE TO FILE A LATE NOTICE OF CLAIM FOR MEDICAL MALPRACTICE; ALTHOUGH THE HOSPITAL DID NOT HAVE TIMELY KNOWLEDGE OF THE ESSENCE OF THE CLAIM, THE HOSPITAL DID NOT DEMONSTRATE ANY PREJUDICE FROM THE DELAY BECAUSE THE MEDICAL ISSUES WERE FULLY DOCUMENTED; THE REQUEST TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioners’ request for leave to file a late notice of claim in this medical malpractice action should have been granted. Petitioner mother did not learn of her child’s medical condition until six months after her discharge from the hospital after labor was induced. Mother therefore had a reasonable excuse for failure to timely file a notice of claim. Although the hospital did not have timely knowledge of the nature of the claim, the hospital did not demonstrate any prejudice from the delay because the relevant issues were fully documented:

… [T]he court, in its discretion, must consider all relevant facts and circumstances, including, but not limited to, whether (1) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (2) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay would substantially prejudice the public corporation in its defense” … . Another factor to consider is whether the claimant was an infant at the time the claim arose and whether there is a nexus between infancy and delay in service … , which was the case here. “‘[T]he presence or absence of any one factor is not determinative'” … .

Here, the petitioners established a reasonable excuse for the delay, to wit, the serious medical condition of the infant petitioner, which required numerous medical appointments while the condition of the infant petitioner was being assessed … . The petitioners failed to demonstrate that NYCHHC had actual knowledge of the facts underlying the claim within 90 days after the claim arose or a reasonable time thereafter, since the hospital’s records did not evidence that the medical staff, by its acts or omissions, inflicted an injury attributable to malpractice … . However, “[s]ince the conduct at issue was fully documented in the medical records, the petitioner[s] made an initial showing that NYCHHC was not prejudiced by the delay in serving the notice of claim … , and, in response, the NYCHHC made no showing of prejudice” … . Matter of Caceres v NYC Health & Hosps., 2026 NY Slip Op 05182, Second Dept 9-2-26

Practice Point: Here the request to file a late notice of claim was granted despite the fact that the hospital did not have timely notice of the essence of the medical malpractice claim. Petitioners had a reasonable excuse for the delay and the hospital did not demonstrate any prejudice caused by the delay.

 

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DEFENDANT TREATING NEUROLOGIST INDICATED ON A DMV FORM FOR REINSTATEMENT OF THE PATIENT-DRIVER’S LICENSE THAT THE DRIVER’S LAST SEIZURE WAS TWO YEARS BEFORE WHEN, IN FACT, THE LAST SEIZURE WAS FOUR MONTHS BEFORE; TWO MONTHS AFTER REINSTATEMENT OF THE LICENSE, THE DRIVER HAD A SEIZURE-RELATED ACCIDENT IN WHICH PLAINTIFFS’ DECEDENTS DIED; THE ACTION AGAINST THE NEUROLOGIST SOUNDED IN ORDINARY NEGLIGENCE, NOT MEDICAL MALPRACTICE, AND WAS THEREFORE TIMELY BROUGHT (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Higgitt, determined the action sounded in negligence, not medical malpractice, rendering the action timely brought. Defendant neurologist was treating the non-party driver for seizures. In filling out a NYS Department of Motor Vehicles (DMV) form for reinstatement of the driver’s license, defendant stated that the driver’s last seizure was about two years before, when in fact the last seizure was four months before. To be entitled to reinstatement of the driver’s license, the driver must have been free of seizures for the previous 12 months. Two months after the driver’s license was reinstated, the driver had a seizure which resulted in a horrific traffic accident in which two people died. The lawsuit was brought by their estates:

… [P]laintiffs’ survival-action claims, premised on the theory that Dr. Avila erroneously recorded the date of the driver’s last seizure in the DMV form, which error led to the DMV reinstating the driver’s license, sound in ordinary negligence. The crux of the survival-action claims is not Dr. Avila’s negligence in furnishing medical treatment to the driver; rather, the essence of the claims is that Dr. Avila failed to fulfill a different duty. The nature of the act underlying those claims — transcribing a date from a treatment note to a governmental administration form — “is more administrative than medical in nature” … . Because the act underpinning the survival-action claims is administrative in nature, jurors can use their common everyday experience to evaluate whether Dr. Avila exercised due care … . That a physician made the alleged administrative error does not transform the claim from one sounding in ordinary negligence to one for medical malpractice; the characterization of a particular claim depends not on the title of the actor but on the nature of the challenged act … .

Ultimately, the core issue related to plaintiffs’ survival-action claims — whether Dr. Avila failed to exercise due care in recording a fact on the DMV form — may not implicate questions of medical competence or judgment regarding the treatment of the driver … . Unlike the inquiry on a medical malpractice claim, whether Dr. Avila breached his duty to exercise due care in recording a fact on the DMV form does not depend on an analysis of the medical treatment rendered to the driver … . Lafferty v Avila, 2026 NY Slip Op 05147, First Dept 8-27-26

Practice Point: If a jury does not need to analyze the medical treatment rendered by a doctor to determine a doctor’s negligence, the action does not sound in medical malpractice and is subject to a three-year statute of limitations for ordinary negligence.

 

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