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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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IT WAS AN ABUSE OF DISCRETION TO ORDER AN EVIDENTIARY HEARING IN THIS TOXIC TORT CASE; NO FRYE HEARING WAS NECESSARY BECAUSE THE EXPERTS DID NOT USE NOVEL OR EXPERIMENTAL METHODS; NO PARKER HEARING WAS NECESSARY BECAUSE GENERAL AND SPECIFIC CAUSATION WERE ADEQUATELY ADDRESSED IN THE EXPERTS’ SUBMISSIONS AND GENERALLY ACCEPTED METHODS WERE USED (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Ceresa, determined there was no need for a Frye hearing in this toxic tort case because none of the three experts used methods that were novel or experimental. In addition, there was no need for a Parker hearing because the expert’s used generally accepted methods to determine general and specific causation. Therefore ordering the evidentiary hearing was an abuse of discretion:

“The singular purpose of a Frye hearing is to ascertain the reliability of novel scientific evidence by determining whether the methods used to generate such evidence will, when properly performed, produce results accepted as reliable within the scientific community generally” … . ” ‘A court need not hold a Frye hearing where it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony’ ” … . “Absent a novel or experimental scientific theory, a Frye hearing is generally unwarranted” … . * * *

… [U]nder Parker, ” ‘[t]he focus moves from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered and whether they establish a foundation for the reception of the evidence at trial.’ . . . [In toxic tort cases,] [i]t is well-established that an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)” (Parker v Mobil Oil Corp., 7 NY3d at 447-448 …). … [A] s plaintiffs’ [experts’] written submissions … offered the requisite causal links, there was no need for a hearing to determine whether these foundational standards were met. Marpe v Tonoga, Inc., 2025 NY Slip Op 07053, Third Dept 12-18-25

Practice Point: Consult this opinion for insight into when a Frye/Parker hearing is necessary to determine the admissibility of expert evidence in a toxic tort case. The evidentiary hearing had been ordered by the trial judge, but the Third Department held ordering the hearing was an abuse of discretion.

 

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UNDER THE LIEN LAW, THE GENERAL CONTRACTOR IN A FAILED SOLAR ENERGY PROJECT, AS TRUSTEE OF THE SETTLEMENT FUNDS, WAS PROPERLY PRECLUDED FROM USING THE FUNDS TO PAY ITSELF FIRST; THE SUBCONTRACTORS MUST BE PAID FIRST; THERE WAS A TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department, affirming Supreme Court, over a two-justice dissent, in a matter of first impression, determined the subcontractors’ motion to enjoin the general contractor from using settlement funds to pay itself for expenditures in a failed solar-energy project was properly granted. The Lien Law created a trust for the settlement funds and required the general contractor, as trustee, to pay the subcontractors before paying itself:

“Article 3-A of the Lien Law impresses with a trust any funds paid or payable to a contractor ‘under or in connection with a contract for an improvement of real property’ ” ( … Lien Law § 70 [1]). Given this statutory definition, we readily conclude that the settlement funds at issue constitute trust funds under Lien Law article 3-A … . The Court of Appeals has “repeatedly recognized that the primary purpose of [Lien Law] article 3-A . . . is to ensure that those who have directly expended labor and materials to improve real property . . . at the direction of the owner or a general contractor receive payment for the work actually performed” … . With respect to a contractor’s trust, the parties entitled to a beneficial status are expressly enumerated in Lien Law § 71 (2) (a)-(f) … Pursuant to Lien Law § 71 (2) (a), “[t]he trust assets of which a contractor . . . is trustee shall be held and applied for [enumerated] expenditures arising out of the improvement of real property,” including “payment of claims of subcontractors, architects, engineers, surveyors, laborers and materialmen” (Lien Law § 71 [2] [a] … ). The language is mandatory and does not include the “cost[s] of improvement,” which is a term specifically defined to address an owner’s costs (Lien Law § 2 [5]; see Lien §§ 70 [5]; 71 [1] …).  L.C. Whitford Co., Inc. v Babcock & Wilcox Solar Energy, Inc., 2025 NY Slip Op 07063, Third Dept 12-18-25

Practice Point: Under the Lien Law the general contractor here is the trustee of the settlement funds and must use the funds to pay the subcontractors before paying itself.

 

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ALTHOUGH PLAINTIFF MAY NOT HAVE INTENDED THE RELEASE TO APPLY TO A PENDING FALSE ARREST ACTION, THE PENDING ACTION WAS NOT LISTED IN THE RELEASE AS AN EXCLUSION AND IS THEREFORE PRECLUDED (CT APP).

The Court of Appeals determined that, even if plaintiff did not intend to release the city from the second false arrest action when he signed a release for the first false arrest action, the release must be enforced according to its plain language. The release had a section where any actions not intended to be encompassed by the release must be specifically identified and listed. Plaintiff, with counsel present, signed the release without listing the second false arrest action as an exclusion, so the release precluded the second action:

This Court has repeatedly made clear that “[i]f ‘the language of a release is clear and unambiguous, the signing of a release is a “jural act” binding on the parties’ ” … . “As with contracts generally, the courts must look to the language of a release—the words used by the parties—to determine their intent, resorting to extrinsic evidence only when the court concludes as a matter of law that the contract is ambiguous” … , or where such evidence establishes one of the ” ‘traditional bases for setting aside written agreements, namely, duress, illegality, fraud, or mutual mistake’ ” … . With respect to mutual mistake, a “high order of evidence is required” to overcome the ” ‘heavy presumption that a deliberately prepared and executed written instrument [manifests] the true intention of the parties’ ” … .

Here, the City established its prima facie entitlement to summary judgment based on the clear language of the release, and plaintiff failed to raise any triable question of fact in opposition. The City’s intent to secure a release from plaintiff of “any and all” claims is evidenced by the plain text of the document it transmitted for plaintiff’s signature. As the Appellate Division correctly held, there was nothing “surreptitious” about the way the release was drafted or transmitted … . Although plaintiff, who was represented by counsel, could have excluded this action from the release by the simple act of listing it in the space provided for that purpose, he signed the release without doing so, an objective manifestation of assent that is binding upon him notwithstanding any unilateral mistake or subsequent regret on his part … . Smith v City of New York, 2025 NY Slip Op 07081, CtApp 12-18-24

Practice Point: A release is strictly enforced according to its plain language. If a release includes a section where any exclusions from its reach must be listed, and that section is left blank, the release will preclude any other pending action, even where the failure to list a pending action was unintentional.

 

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THE ADMINISTRATIVE LAW JUDGE WENT AHEAD WITH THE DRIVER’S LICENSE REVOCATION HEARING IN THE ABSENCE OF THE OFFICERS WHO ARRESTED THE DRIVER FOR DWI; THE DRIVER’S ARGUMENT HE WAS DENIED DUE PROCESS BECAUSE HE WAS UNABLE TO CROSS-EXAMINE THE OFFICERS WAS REJECTED; THE DRIVER HAD SUBPOENAED THE OFFICERS BUT CHOSE NOT TO USE THE CPLR 2308 PROCEDURE FOR ENFORCEMENT OF THE SUBPOENAS; THE AVAILABILITY OF THE ENFORCEMENT PROCEDURE WAS DEEMED “SUFFICIENT PROCESS” (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Wilson, determined a driver, Monaghan, whose license was automatically suspended when he refused to submit to a chemical test at the time he was arrested for DWI, was not denied due process rights when the Department of Motor Vehicles (DMV) Administrative Law Judge (ALJ) revoked his license despite the arresting officers’ failure to appear at the revocation hearing. Monaghan had subpoenaed the officers and argued he was denied his right to cross-examine them. The Court of Appeal noted that Monaghan could have sought to enforce the subpoenas but chose not to. The Court found that the procedure for enforcement of subpoenas is not unduly burdensome. Therefore requiring Monaghan to use that procedure to exercise his right to cross-examine the officers does not amount to a denial of due process:

… [W]e reject the contention that Mr. Monaghan’s was deprived of his due process right to cross-examine the Troopers. His private interest in retaining his driver’s license and the government’s interest in public safety are both significant. The due process analysis, here, turns on the benefit and burden of requiring a motorist to seek judicial enforcement of a subpoena. Mr. Monaghan chose not to avail himself of the process set forth in CPLR 2308 (b). The process of applying to enforce a nonjudicial subpoena is not so unduly burdensome as to constitute a deprivation of due process of law. Our holding is consistent with appellate courts’ decisions rejecting due process challenges in other types of administrative proceedings where the petitioner has not attempted to enforce a subpoena … . It is undisputed that Mr. Monaghan did not seek enforcement, nor did he request an adjournment to do so. Matter of Monaghan v Schroeder, 2025 NY Slip Op 06959, CtApp 12-16-25

Practice Point: Here the officers who arrested the driver for DWI did not appear at the license revocation hearing. The driver argued his inability to cross-examine the officers deprived him of due process of law. However, the driver had subpoenaed the officers. He could have used the CPLR 2308 (b) procedure for enforcing the subpoenas but chose not to. The availability of the enforcement procedure was deemed sufficient process.

 

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HERE THE TOWN PASSED A LOCAL LAW REQUIRING THE CLOSURE OF A LANDFILL OWNED AND OPERATED BY SMI; BECAUSE SMI’S PROPERTY IS THE VERY SUBJECT OF THE LOCAL LAW, SMI NEED NOT DEMONSTRATE “ENVIRONMENTAL HARM” AS AN ELEMENT OF STANDING TO CHALLENGE THE TOWN’S STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) DECLARATION THAT THE CLOSURE OF THE LANDFILL WILL NOT HAVE A SIGNIFICANT ADVERSE ENVIRONMENTAL IMPACT; SMI HAS STANDING TO CHALLENGE THE TOWN’S NEGATIVE SEQRA DECLARATION ON THE GROUND THAT THE TOWN DID NOT TAKE THE REQUIRED “HARD LOOK” AT THE EVIDENCE BEFORE ISSUING THE NEGATIVE DECLARATION (CT APP). ​

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, determined the petitioner-plaintiff Seneca Meadows, Inc. (SMI), the owner and operator of a landfill, had standing to challenge the town’s State Environmental Quality Review Act (SEQRA) finding that the closure of the landfill pursuant to a Local Law would not have a significant adverse environmental impact. SMI argued the town did not take the required “hard look” at the evidence before issuing its negative SEQRA declaration:

“SEQRA is designed to promote efforts which will prevent or eliminate damage to the environment and enhance human and community resources . . . by injecting environmental considerations directly into governmental decision making; thus the statute mandates that social, economic and environmental factors shall be considered together in reaching decisions on proposed activities” … . Standing to sue under SEQRA, as with other statutory causes of action, requires that the plaintiff establish an injury-in-fact and that the in-fact injury fall within the zone of interest that the statute protects … . Thus, to sue under SEQRA, a plaintiff must ordinarily show that their injury falls within the statute’s environmental zone of interest by “demonstrat[ing] that it will suffer an injury that is environmental and not solely economic in nature” … .

However, [Matter of Har Enters. v Town of Brookhaven (74 NY2d 524 [1989])] established that “no such specific allegation [of environmental harm] is necessary” when the petitioner’s property is “the very subject” of the government’s action … . That case involved a rezoning of the petitioner’s property from commercial to residential use … . As the Court explained, “[i]t seems evident that if any party should be held to have a sufficient interest to object—without having to allege some specific harm—it is an owner of property which is the subject of a contemplated rezoning” … . Following that ruling, a few years later, the Court held in [Gernatt Asphalt Prods. v Town of Sardinia (87 NY2d 668 [1996])] that a landowner whose potential mining operations would be eliminated by rezoning was directly impacted by the governmental land use regulation and thus had standing under Har to challenge the government’s lack of compliance with SEQRA … . Matter of Seneca Meadows, Inc. v Town of Seneca Falls, 2025 NY Slip Op 06961, CtApp 12-16-25

Practice Point: When the petitioner’s property is the subject of the government’s action, the petitioner need not demonstrate “environmental harm” to have standing to challenge the government’s SEQRA declaration. Here the town passed a local law requiring closure of petitioner’s landfill. Petitioner need not demonstrate “environmental harm” to have standing to challenge the town’s SEQRA negative declaration on the ground the town did not take the required “hard look” at the evidence before finding that the landfill closure would not have a significant adverse environmental impact.

 

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