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THE NEW YORK CITY LOCAL LAWS REFORMING THE NYC FIGHTING HOMELESSNES AND EVICTION PREVENTION SUPPLEMENT ARE NOT PREEMPTED BY THE NEW YORK STATE SOCIAL SERVICES LAW (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Higgitt, determined that the local laws passed by the City Council modifying the New York City Fighting Homelessness and Eviction Prevention Supplement (FHEPS) were not preempted by the New York State Social Services Law. The opinion is comprehensive and too detailed to fairly summarize here:

[The] FHEPS reform laws were prompted by three conditions faced by the City: the rising number of evictions of residential tenants, a dramatic increase in the rate of homelessness, and an overburdened shelter system.  These laws were designed to broaden eligibility for City-funded rental assistance, and promote quantitatively and qualitatively greater assistance. Thus, the FHEPS reform laws increased the income eligibility threshold, eliminated a 90-day shelter residency requirement, eliminated recipient work requirements, prohibited the New York City Department of Social Services (City DSS) from deducting a utility allowance from the maximum rental allowance for a FHEPS voucher, and expanded the list of individuals eligible for rental assistance (see Local Law Nos. 99-102). * * *

Several individuals who hoped to avail themselves of the benefits of the FHEPS reform laws commenced this CPLR article 78 proceeding, challenging the Mayor’s refusal to implement those laws. The individuals initiated the proceeding as a putative class action, and bring the case on behalf of themselves and others similarly situated. The City Council was granted leave to intervene in the proceeding, and sought an order directing the Mayor to implement the FHEPS reform laws or, alternatively, a declaration that those laws are valid. With respect to the principal relief sought, the City Council makes plain that it “seeks only that the Mayor be directed to take action to implement [the new local laws]. How the administration implements the [FHEPS] Reform Laws is within the administration’s discretion.”

The Mayor opposed the article 78 petition on the ground that the FHEPS reform laws are preempted by the State’s Social Services Law. Matter of Vincent v Adams, 2025 NY Slip Op 04146, First Dept 5-27-25

Practice Point: Consult this opinion for an analysis of the preemption doctrine in the context of NYC Local Laws and the NYS Social Services Law.

 

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THE LITIGATION PRIVILEGE WHICH APPLIES TO DEFAMATION ACTIONS WAS NOT APPLICABLE HERE IN THIS BREACH OF CONTRACT ACTION ALLEGING BREACH OF CONFIDENTIALITY AND NONDISPARAGEMENT PROVISIONS; DEFENDANT ALLEGEDLY THREATENED TO PROVIDE DAMAGING TESTIMONY IN ANOTHER ACTION INVOLVING PLAINTIFFS, IN WHICH DEFENDANT WAS NOT A PARTY, IF DEFENDANT’S DEMANDS WERE NOT MET (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant was not entitled to immunity in this breach of contract action alleging breach of confidentiality and nondisparagement provisions. The immunity and privilege which applies to statements made in defamation litigation does not apply in breach of contract litigation:

Plaintiffs allege that defendant breached the confidentiality and nondisparagement provisions of their agreement when he threatened to provide damaging testimony in a separate action between plaintiffs and Reebok (a litigation to which defendant was not a party) if his demands in an unrelated arbitration with plaintiffs were not accepted. Plaintiffs further allege that when his demands were rejected, defendant acted on his threats, contacted Reebok, and offered to provide damaging false testimony in that action.

Defendant … argues … that the Court of Appeals’ recent holding in Gottwald v Sebert (40 NY3d 240 [2023]) bars plaintiffs’ action. In Gottwald, the court held that there is no “sham exception” to the litigation privilege in a defamation action, thus conferring absolute litigation privilege no matter the motivation for the suit … . The motion court agreed that Gottwald barred plaintiff’s action and granted defendant summary judgment on that basis.

Gottwald specifically holds that “absolute immunity from liability for defamation exists for . . . statements made . . . in connection with a proceeding before a court when such words and writings are material and pertinent to the questions involved” … . However, here, plaintiffs’ sole cause of action is for breach of contract, not defamation, and thus, Gottwald is not applicable. Moreover, the absolute litigation privilege granted by the Gottwald court was conferred upon parties to the suit. Gottwald does not speak to whether that privilege extends to individuals ancillary or collateral to the litigation, such as a potential witness.  TRB Acquisitions LLC v Yedid, 2025 NY Slip Op 03872, First Dept 6-26-25

Practice Point: The litigation privilege which applies in defamation actions was not applicable here in this breach of contract action where defendant threatened to give damaging testimony in another action involving plaintiffs in which defendant was not a party.

 

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FAILURE TO REJECT A LATE ANSWER WITHIN 15 DAYS WAIVES LATE SERVICE AND THE DEFAULT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff waived any objection to late service of the answer by not rejecting it within 15 days:

Pursuant to CPLR 2101(f), “[t]he party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within fifteen days after the receipt thereof, the party on whom the paper is served returns the paper to the party serving it with a statement of particular objections” … . Here, the plaintiff’s undisputed failure to reject [the] answer within the 15-day statutory time frame constituted a waiver of the late service and the default … . Moreover, the plaintiff did not move for leave to enter a default judgment against [defendants] … . Therefore, the Supreme Court should not have rejected the answer … .Globalized Realty Group, LLC v Crossroad Realty NY, LLC, 2025 NY Slip Op 03797, Second Dept 6-25-25

Practice Point: Failure to reject a late answer following the procedure in CPLR 2101(1) waives late service and the default.

 

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IN THIS CHILD VICTIMS ACT CASE AGAINST A TEACHER, PLAINTIFF’S MOTION TO AMEND THE BILL OF PARTICULARS TO ADD DEPOSITION TESTIMONY CONCERNING STATEMENTS MADE BY WITNESSES TO PLAINTIFF’S ATTORNEYS SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act suit, determined plaintiff should have been allowed to amend the bill of particulars to add deposition testimony which included witness statements made to plaintiff’s attorneys concerning the defendant teacher:

“Pursuant to CPLR 3025(b), leave to amend or supplement a pleading is to be ‘freely given'” … . “‘In the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'” … . “The burden of proof in establishing prejudice or surprise, or that the proposed amendment lacks merit, falls to the party opposing the motion for leave to amend” … . “[T]he decision of whether to grant or deny leave to amend is subject to the discretion of the trial court” … .

The Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was for leave to amend the bill of particulars to include the proposed witness’s statements to [plaintiff’s attorneys]. The proposed amendment was not palpably insufficient or patently devoid of merit … . In this case, having failed to oppose the motion, the District defendants failed to satisfy their burden of demonstrating any prejudice or surprise … . Fitzpatrick v Pine Bush Cent. Sch. Dist., 2025 NY Slip Op 03794, Second Dept 6-25-25

Practice Point: Amendments to pleadings should be freely allowed. Here deposition testimony about vague and contradictory statements made to plaintiff’s counsel by witnesses concerning defendant teacher’s alleged interaction with students can properly be added to the bill of particulars, criteria explained.

 

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HERE THE ASSISTANT SUPERINTENDENT WHO WAS HANDED THE SUMMONS AND COMPLAINT IN THIS PROPERTY-DAMAGE ACTION WAS AN AUTHORIZED AGENT OF THE SCHOOL DISTRICT; THEREFORE THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED FOR FAILURE TO COMPLETE PROPER SERVICE (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Voutsinas, reversing Supreme Court, determined the assistant superintendent who was handed the summons and complaint in this property-damage action against the school district was an authorized agent of the district. Therefore the complaint should not have been dismissed for failure to complete proper service:

It is evident, however, that the role of assistant superintendent was intended, under Education Law § 2(13), to be considered another appointive officer whose duties generally relate to the administration of affairs within a school district. An assistant superintendent … directly carries out duties that typically would be carried out by the superintendent. These duties fit closely with the statutory definition of “school officer” as contemplated by Education Law § 2(13).

Moreover, as set forth in the Education Law, the role of assistant superintendent is generally created directly by an elected board of education, such as the defendant’s Board of Education. Specifically, Education Law § 2503(5), applicable to the defendant herein, grants the Board of Education the ability to “create, abolish, maintain and consolidate such positions . . . as, in its judgment, may be necessary for the proper and efficient administration of its work” and “shall appoint properly qualified persons to fills such positions, including a superintendent of schools” and “such associate, assistant and other superintendents . . . as said board shall determine necessary for the efficient management of the schools.” Here, the defendant, in accordance with the relevant provisions of the Education Law, has given … the assistant superintendent for curriculum and instruction … authority and command to administer the affairs of the defendant and its superintendent as it pertains to the offering of the curriculum to the student body and the instruction of each student. It is evident that [the assistant superintendent], in this role, reports directly to the superintendent of schools and the Board of Education and is charged with administering functions that otherwise would be tasked to the Board of Education and/or the superintendent of schools. Aideyan v Mount Vernon City Sch. Dist., 2025 NY Slip Op 03787, Second Dept 6-25-25

Practice Point: Consult this decision if you need to know who is authorized to accept service on behalf of a school district.

 

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PLAINTIFF STATED A CAUSE OF ACTION FOR DEFAMATION PER SE (DEFENDANT ALLEGEDLY STATED PLAINTIFF ENGAGED IN MONEY LAUNDERING); ALTHOUGH DEFENDANT DEMONSTRATED THE ACTION INVOLVED “PUBLIC PETITION AND PARTICIPATION” WITHIN THE MEANING OF THE SLAPP STATUTE, PLAINTIFF DEMONSTRATED THE DEFAMATION ACTION HAD A SUBSTANTIAL BASIS IN LAW; THEREFORE THE SLAPP STATUTE SHOULD NOT HAVE BEEN APPLIED TO DISMISS THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff had stated a cause of action for defamation and defendant was not entitled to dismissal of the complaint pursuant to the SLAPP statute (strategic lawsuit against public participation—Civil Rights Law section 70-a(1)(a)). Plaintiff operated a marina under a 60-year lease from the National Park Service, a US governmental agency. Defendant allegedly told plaintiff’s customer that plaintiff was engaged in money-laundering:

… [D]efendant satisfied his initial burden of establishing that this action is an action involving public petition and participation, since it involves a claim based upon “lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest” (id. § 76-a[1][a][2]).  * * * … [T]he defendant established that the causes of action were asserted in connection with an issue of public interest, as the defendant allegedly accused an entity operating with the authority of a governmental agency of criminal conduct … .

Since the defendant established that this action constitutes an action involving public petition and participation, the burden shifted to the plaintiff to demonstrate that the causes of action had a substantial basis in law … .

… [T]he defendant’s alleged statement that the plaintiff “is engaged in money laundering” did not constitute pure nonactionable opinion … . * * * …[T]he complaint alleged that the defendant acted with “actual malice” or reckless disregard as to whether the statements were true or false … . … [T]he complaint was not required to allege special damages, since it asserted a cause of action alleging defamation per se based upon allegations that the defendant made statements charging the plaintiff with a serious crime or tending to injure it in its trade, business, or profession … . Thus, the plaintiff established that the cause of action alleging defamation per se had a substantial basis in law … . Moonbeam Gateway Mar., LLC v Tai Chan, 2025 NY Slip Op 03802, Second Dept 6-25-25

Practice Point: The motion court dismissed the defamation action on the ground it was precluded by the SLAPP statute. However the Second Department held that plaintiff had demonstrated the defamation action had a substantial basis in law. Therefore defendant did not demonstrate entitlement to dismissal under the SLAPP statute.

 

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IN THIS CLASS-ACTION-CERTIFICATION PROCEEDING ALLEGING FAILURE TO PROVIDE NOTICE OF PAY RATE AND PAY DAY AS REQUIRED BY LABOR LAW SECTION 195(1), THE COURT SHOULD NOT HAVE GRANTED CERTIFICATION FOR THE CLAIM FOR LIQUIDATED DAMAGES AND SHOULD NOT HAVE GRANTED THE REQUEST FOR THE SOCIAL SECURITY NUMBERS OF CLASS MEMBERS WHOSE CLASS-ACTION NOTICE WAS RETURNED AS UNDELIVERABLE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court in this class-action-certification proceeding concerning wage notice violations, noted that CPLR 901(b) prohibits class actions seeking liquidated damages and the request for social security numbers for class members whose notice was returned as undeliverable should not have been granted:

… [T]he court should not have granted class certification for the wage notice claims, which are based on the alleged failure to provide a notice of pay rate and pay day as required by Labor Law § 195(1), and seek liquidated damages, plus reasonable attorneys’ fees and costs under Labor Law § 198(1-b). Where, as here, defendant pleaded a Labor Law § 198 statutory affirmative defense to the wage notice claim, the court should have declined to grant certification by applying the CPLR 901(b) prohibition against class actions seeking liquidated damages … .

To the extent the court ordered defendants to provide the names, addresses, phone numbers, and email addresses of all class members, as well as social security numbers for all class members whose notice is returned as undeliverable without a forwarding address, the order is modified to deny the request for social security numbers. The court otherwise properly granted the request for phone numbers and e-mail addresses, which is a reasonable request to expedite class notification. Idahosa v MFM Contr. Corp., 2025 NY Slip Op 03762, First Sept 6-24-25

Practice Point: Where class-action notices are returned as undeliverable, the request for phone numbers and e-mail addresses is properly granted to expedite class notification, but the request for social security numbers should not be granted.

 

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“BEACH 12,” A NONPARTY WHICH BECAME TITLE OWNER OF THE PROPERTY AFTER PLAINTIFF FILED THE NOTICE OF PENDENCY, WAS ENTITLED TO INTERVENE IN THE FORECLOSURE ACTION AS OF RIGHT; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined an nonparty (Beach 12) was entitled to intervene in the foreclosure action as of right:

“Upon a timely motion, a person is permitted to intervene as of right when the representation of that person’s interest by the parties is or may be inadequate and the person is or may be bound by the judgment, or when the action involves the disposition of property and that person may be affected adversely by the judgment” (… CPLR 1012[a][2], [3]). “In addition, CPLR 1013 provides that a court has discretion to permit a person to intervene, inter alia, when the person’s claim or defense and the main action have a common question of law or fact” … . “Whether intervention is sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013, is of little practical significance, since intervention should be permitted where the intervenor has a real and substantial interest in the outcome of the proceedings” … . “Intervention may occur at any time, provided that it does not unduly delay the action or prejudice existing parties” … .

… Beach 12 was entitled to intervene [because] this “action involve[s] the disposition of title to real property” and … Beach 12, which became the title owner of the premises after the plaintiff’s filing of a notice of pendency, “would be bound and adversely affected by a judgment of foreclosure and sale” … . Bank of Am., N.A. v Reed, 2025 NY Slip Op 03695, Second Dept 6-18-25

Practice Point: Consult this decision the criteria for a nonparty’s intervention in a foreclosure action.

 

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THE PETITIONER, A NEW YORK CITY FIREFIGHTER, DID NOT DEMONSTRATE THE FIRE DEPARTMENT IMPROPERLY DENIED PETITIONER’S REQUEST FOR A RELIGIOUS EXEMPTION FROM THE COVID VACCINE MANDATE; SUPREME COURT REVERSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined petitioner-firefighter did not demonstrate the NYC Fire Department (FDNY) improperly denied petitioner’s request for a religious exemption from the COVID vaccine mandate:

Pursuant to the NYCHRL [New York City Human Rights Law], it is “an unlawful discriminatory practice” for an employer “to refuse or otherwise fail to engage in a cooperative dialogue within a reasonable time with a person who has requested an accommodation” for, among other possibilities, “religious needs” (Administrative Code § 8-107[28][a][1]). Here, the petitioner failed to demonstrate that the appellants’ process for resolving requests for a reasonable accommodation from the vaccine mandate did not meet the requirements of the NYCHRL regarding cooperative dialogue … . The appellants provided information on the process for reviewing accommodation requests related to the vaccine mandate and informed employees on how to appeal request denials. The record demonstrates that the petitioner availed himself of this process. The record also shows that there were multiple communications between the petitioner, the FDNY, and the [City of New York Reasonable Accommodation Appeals Panel] regarding the petitioner’s accommodation request. The petitioner failed to establish that, under the unique circumstances present at the time of the vaccine mandate, the NYCHRL required a more robust or individualized dialogue.

The petitioner also failed to demonstrate that the determination to deny him a religious exemption from the vaccine mandate was arbitrary and capricious … . Matter of Smith v New York City Fire Dept., 2025 NY Slip Op 03728, Second Dept 6-18-25

Practice Point: Here the petitioner-firefighter had won in Supreme Court and was reinstated with back pay. But the Second Department reversed finding petitioner was not entitled to a religious exemption from the COVID vaccine mandate.

 

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SUPREME COURT HAS SUBJECT MATTER JURISDICTION OVER THIS PROCEEDING UNDER CPLR ARTICLE 52 TO ENFORCE A MONEY JUDGMENT AGAINST THE STATE INSURANCE FUND TO THE EXTENT THE STATE IS A GARNISHEE (SECOND DEPT)

The Second Department, in a full-fledged opinion by Justice Dillon, determined Supreme Court had subject matter jurisdiction over this CPLR article 52 action to enforce a money judgment against New York State Insurance Fund. Ordinarily an action for money damages against a state agency is litigated in the Court of Claims:

In this proceeding, the State Insurance Fund is postured not as a judgment debtor but as a garnishee. As such, under CPLR 5207, all procedures for the enforcement of money judgments against other judgment debtors are applicable to it, as a garnishee, “except where otherwise prescribed by law” and except that an order “shall only provide for the payment of moneys not claimed by the [S]tate” and that no judgment may be entered against the State in such a procedure.

The State Insurance Fund has not shown that this proceeding is otherwise prescribed by law. To the contrary, CPLR 5221(a)(4) provides that the Supreme Court or a County Court has authority to hear enforcement proceedings “authorized by this article,” meaning the entirety of CPLR article 52, which, of course, includes CPLR 5207 garnishment proceedings against the State. … The petition seeks entry of an order, not a judgment. Thus, contrary to the State Insurance Fund’s contention, we hold that the Supreme Court possessed subject matter jurisdiction over this proceeding pursuant to CPLR article 52 to enforce a money judgment as against the State Insurance Fund to the extent that the State’s role in this instance is that of a garnishee. Matter of Doran Constr. Corp. v New York State Ins. Fund, 2025 NY Slip Op 03716, Second Dept 6-18-25

Practice Point: Here, under very complicated facts, Supreme Court was deemed to have subject matter jurisdiction over an action to enforce a money judgment against a state agency where the state’s role is that of a garnishee.

 

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