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A JUDGE CANNOT ORDER DISCOVERY IN A FOREIGN JURISDICTION WHICH IS A SIGNATORY TO THE HAGUE CONVENTION WITHOUT COMPLYING WITH THE REQUIREMENTS OF THE CONVENTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge should not have ordered discovery of a nonparty’s electronic devices in a foreign jurisdiction without complying with the Hague Convention. The nonparty, de Putron, resides in the island country of Jersey in the United Kingdom:

… Supreme Court improperly directed the discovery of de Putron’s electronic devices. First, “when discovery is sought from a nonparty in a foreign jurisdiction [that is a signatory to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters … , application of the . . . Convention . . . is virtually compulsory” … . An order directing discovery of such a party without complying with the Hague Convention is therefore an “improper assertion of power beyond the . . . Court’s jurisdiction” … . As it is undisputed that de Putron is a nonparty in a foreign jurisdiction that is a signatory to the Hague Convention, Supreme Court lacked the power to direct discovery of his electronic devices without complying with the Hague Convention. Dorilton Capital Mgt. LLC v Stilus LLC, 2025 NY Slip Op 05744, First Dept 10-16-25

Practice Point: Here discovery of a foreign nonparty’s electronic devices was improperly ordered by the judge. The country in which the nonparty resided was a signatory to the Hague Convention. Compliance with the Convention is a prerequisite to any discovery order.

 

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THE ADMINSTRATOR’S SIX-YEAR DELAYING IN SEEKING SUBSTITUTION FOR THE DECEASED PLAINTFF, COUPLED WITH THE PREJUDICE TO THE DEFENDANT IN THIS PERSONAL INJURY CASE, WARRANTED DISMISSAL OF THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the administrator’s six-year delay in substituting the estate for the deceased in this personal injury case, warranted dismissal of the complaint:

“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made” … . CPLR 1021 provides that “[a] motion for substitution may be made by the successors or representatives of a party or by any party” … and requires that such substitution “be made within a reasonable time” …. If substitution is not made within a reasonable time, “the action may be dismissed as to the party for whom substitution should have been made” (CPLR 1021). “[T]he determination of whether the timing is reasonable requires consideration of several factors, including the diligence of the party seeking substitution, the prejudice to the other parties, and whether the party to be substituted has shown that the action or the defense has potential merit” … .

Here, the administrator’s protracted delay of almost six years in obtaining limited letters of administration so as to be substituted in this action, for which he provided no explanation in his initial motion papers and only an unsubstantiated, partial explanation in his reply attorney affirmation, demonstrated a lack of diligence. Furthermore, in this 16-year-old personal injury action, in which the deposition of the bus driver was never obtained, the administrator failed to rebut the defendants’ showing of prejudice arising both from the passage of time and the unavailability of the bus driver. Finally, the administrator did not submit in support of his motion the complaint, a bill of particulars, deposition transcripts, or any proof at all as to the potential merit of the cause of action. Under these circumstances, the Supreme Court improvidently exercised its discretion in granting the administrator’s motion and, in effect, denying the defendants’ application to dismiss the complaint for failure to timely seek substitution ..Watson v New York City Tr. Auth., 2025 NY Slip Op 05718, Second Dept 10-15-25

Practice Point: Here an administrator’s six-year delay in seeking substitution for the deceased plaintiff, coupled with prejudice to the defendant, warranted dismissal of the personal injury complaint.

 

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DEFENDANT DEFAULTED IN THIS CHILD VICTIMS ACT CASE ALLEGING HE SEXUALLY ABUSED PLAINTIFF; DEFENDANT SHOULD NOT HAVE BEEN ALLOWED TO DENY THE ABUSE IN THE DAMAGES TRIAL; NEW DAMAGES TRIAL ORDERED (SECOND DEPT). ​

The Second Department, ordering a new trial on damages, determined defendant, who had defaulted in this Child Victims Act case alleging sexual abuse of the plaintiff by the defendant, should not have been allowed to deny the abuse in the damages trial:

…Supreme Court erred in permitting the defendant to testify that the plaintiff’s allegations of sexual abuse were untrue and that he had never sexually abused the plaintiff. The testimony violated the court’s pretrial order expressly prohibiting such testimony. Moreover, a defaulting defendant “admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages” … . “Accordingly, at a trial to determine the amount of a plaintiff’s real damages, the defendant will not be allowed to introduce evidence tending to defeat the plaintiff’s cause of action” … . The defendant’s testimony denying the basic allegation of liability prejudiced a substantial right of the plaintiff, as that issue had been decided in her favor, and possibly affected the jury’s verdict on the issue of damages. Accordingly, the court should have granted the plaintiff’s motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages in the interest of justice and for a new trial on the issue of damages … . Reilly v Grieco, 2025 NY Slip Op 05711, Second Dept 10-15-25

Practice Point: Here defendant defaulted in this Child Victims Act case but was allowed to deny the abuse in the damages trial. That was error requiring an new trial on damages.

 

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ONE OF THE THREE DEFENDANTS, THE OWNER OF THE OTHER TWO, WAS NOT SHOWN TO BE LIABLE UNDER THE LABOR LAW; THEREFORE THE $10,000,000 PUNITIVE-DAMAGES JUDGMENT AGAINST THE OWNER SHOULD NOT HAVE BEEN AWARDED; NEW YORK DOES NOT RECOGNIZE AN INDEPENDENT CAUSE OF ACTION FOR PUNITIVE DAMAGES (SECOND DEPT).

The Second Department, reversing the $10,000,000 judgment for punitive damages in this Labor Law 220, 240(1) and 241(6) action, noted that New York does not recognize an independent cause of action for punitive damages. Summary judgment was granted against two defendants. but was denied with respect to Berger, the owner of the other two defendants. The jury was instructed to decide whether to award punitive damages based on Berger’s conduct and did so:

The plaintiff and his wife …, with leave of court, served an amended complaint to add a claim for punitive damages. The defendants answered the amended complaint, and the matter proceeded to a trial limited to the issue of damages. After both parties rested, the jury was instructed to decide whether to award punitive damages based upon conduct of Berger. The jury awarded the plaintiff and his wife punitive damages in the sum of $10,000,000, and the Supreme Court entered a judgment … in favor of the plaintiff and his wife and against the defendants … in the principal sum of $10,000,000 for punitive damages. The defendants appeal from that portion of the judgment.

“New York does not recognize an independent cause of action for punitive damages. Instead, ‘[a] demand or request for punitive damages is parasitic and possesses no viability absent its attachment to a substantive cause of action'” … . Here, the Supreme Court erroneously instructed the jury that the issue of Berger’s liability had already been determined against him, and the jury was not asked to consider Berger’s liability under the Labor Law or otherwise. Because Berger was never determined to be liable with respect to any substantive cause of action, no punitive damages could be awarded based upon his alleged conduct … . Petrosian v B & A Warehousing, Inc., 2025 NY Slip Op 05708, Second Dept 10-15-25

Practice Point: Here plaintiffs were awarded a $10,000,000 punitive-damages judgment against a defendant who was not determined to have been liable. New York does not recognize an independent cause of action for punitive damages. The punitive-damages judgment was therefore reversed.

 

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THERE IS A QUESTION OF FACT WHETHER THE SCHOOL DISTRICT HAD CONSTRUCTIVE NOTICE OF THE ALLEGED SEXUAL ABUSE OF PLAINTIFF-STUDENT IN THIS CHILD VICTIMS ACT CASE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendants in this Child Victims Act case against the school district for negligent hiring, retention and supervision did not demonstrate a lack of constructive notice of the alleged sexual abuse of plaintiff-student by a custodian. Therefore the defendant’s motion for summary judgment should not have been granted:

“To establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, it must be shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” … .

Here, the defendants’ evidence included testimony given by the plaintiff during his deposition that he was abused on dozens of occasions over three to four years, that there were several other students who were similarly abused, and that other custodians employed by the District were present in the school building after hours and on weekends and saw the plaintiff alone with the custodian in the building. Thus, contrary to the defendants’ contention, they failed to establish, prima facie, that the District lacked constructive notice of the custodian’s alleged abusive propensities and conduct … . PC-14 Doe v Lawrence Union Free Sch. Dist., 2025 NY Slip Op 05693, Second Dept 10-15-25

Practice Point: Consult this decision for insight into how a question of fact is raised about a school-defendant’s constructive notice of sexual abuse of a student by a school employee.

 

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IT WAS A PROPER EXERCISE OF DISCRETION TO EXTEND THE DEADLINE FOR THE FORECLOSURE SALE DUE TO THE COVID PANDEMIC; HOWEVER IT WAS AN ABUSE OF DISCRETION TO DENY THE MOTION TO TOLL THE ACCRUAL OF INTEREST DURING THE DELAY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this foreclosure action, determined the deadline for the foreclosure sale mandated by RPAPL 1351 was properly extended due to the COVID pandemic, but the accumulation of interest during the delay should have been tolled:

… Supreme Court providently exercised its discretion in granting the plaintiff’s motion pursuant to CPLR 2004 to extend the time to conduct the foreclosure sale to the extent of extending the time to conduct the sale to 90 days from the date of the order … . The plaintiff demonstrated that “the delay [wa]s largely attributable to, among other things, . . . the COVID-19 pandemic” … . Further, the defendant failed to establish that the delay caused him any prejudice … .

“A foreclosure action is equitable in nature and triggers the equitable powers of the court” … . “Once equity is invoked, the court’s power is as broad as equity and justice require” … . Thus, “[i]n an action of an equitable nature, the recovery of interest is within the court’s discretion. The exercise of that discretion will be governed by the particular facts in each case, including any wrongful conduct by either party” … . “Further, a tolling and cancellation of interest may also be warranted where there is an unexplained delay in prosecution of a mortgage foreclosure action” … . “[A] plaintiff should not benefit financially, in the form of accrued interest, from an unexplained delay in the prosecution of a mortgage foreclosure action” … .

… Supreme Court improvidently exercised its discretion in denying the defendant’s cross-motion to toll the accrual of interest on the subject mortgage loan … . The plaintiff asserted that the COVID-19 pandemic impacted its ability to proceed with the sale of the property … . However, the pandemic-related stays on foreclosure sales did not go into effect until after the expiration of the 90-day deadline to conduct the sale of the property … , and the plaintiff failed to adequately explain its failure to conduct the sale within that 90-day period … . Under the circumstances presented, the court should have granted the defendant’s cross-motion to the extent of tolling the accrual of interest on the subject mortgage loan after February 17, 2020 … . M&T Bank v Givens, 2025 NY Slip Op 05677, Second Dept 10-15-25

Practice Point: A foreclosure is an equitable proceeding triggering the exercise of discretion by the the judge. Here the extension of the deadline for the foreclosure sale due to the COVID pandemic was a proper exercise of discretion, but the denial of the motion to toll the accrual of interest during the delay was an abuse of discretion.

 

PLAINTIFF DID NOT EXERCISE DUE DILIGENCE IN IDENTIFYING THE PARTY INITIALLY SUED AS “JOHN DOE TRUCKING COMPANY;” COMPLAINT DISMISSED AS TIME-BARRED (SECOND DEPT). ​

The Second Department, reversing Supreme Court and dismissing the complaint as time-barred, determined plaintiff did not exercise due diligence in identifying the party initially sued as “John Doe Trucking Company” prior to the expiration of the statute of limitations:

Pursuant to CPLR 1024, “[a] party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his [or her] name and identity as is known.” “However, a plaintiff cannot rely on CPLR 1024 unless he or she ‘exercise[s] due diligence, prior to the running of the statute of limitations, to identify the defendant by name and, despite such efforts, [is] unable to do so'” … . “Any failure to exercise due diligence to ascertain the ‘Jane Doe’s’ [or ‘John Doe’s’] name subjects the complaint to dismissal as to that party” … . Additionally, the “Jane Doe” or “John Doe” party must “be described in such form as will fairly apprise the party that she [or he] is the intended defendant” … .

Here, the plaintiff failed to establish that it made diligent efforts to ascertain Werner’s identity prior to the expiration of the statute of limitations … . Further, the description in the amended complaint was insufficient to fairly apprise Werner that it was the intended defendant … . Abrego v Tile World Import Corp., 2025 NY Slip Op 05661, Second Dept 10-15-25

Practice Point: Failure to exercise due diligence in identifying a party initially sued as a “John Doe” before the expiration of the statute of limitations will result in dismissal of the complaint.

 

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IN THIS CHILD VICTIMS ACT CASE BASED ON ALLEGATIONS OF SEXUAL ABUSE BY A TEACHER IN THE 70’S, EVIDENCE SUBMITTED BY PLAINTIFF AND DEFENDANTS RAISED QUESTIONS OF FACT WHICH SUPPORTED THE NEGLIGENT SUPERVISION, TRAINING AND HIRING AND RETENTION CAUSES OF ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this Child Victims Act case, determined the negligent supervision, negligent training, and negligent hiring and retention causes of action against the school district, based on allegations of sexual abuse of plaintiff by a music teacher in the 70’s, should not have been dismissed. The evidence presented by the plaintiff and defendants included the observed behavior of the music teacher by another teacher, the dismissal of the music teacher from other schools, the conflicting information about arrests in the teacher’s employment applications, the suspicions of other teachers and the failure to report those suspicions:

… [P]laintiff submitted an affidavit wherein he averred that on two occasions the music teacher entered the boys’ locker room while plaintiff and his classmates were changing and that on each occasion the gym teacher instructed the music teacher to leave. Although the gym teacher denied observing the music teacher in the boys’ locker room during his deposition, plaintiff submitted an affidavit that the gym teacher executed in an unrelated case wherein he averred that he had “heard rumors from many students” that the music teacher had a sexual interest in the male students at the school and that he was “suspicious that [the music teacher] may have had inappropriate relationships with students.” The affidavit reflects that the gym teacher was “vigilant” and “kept an eye on” the music teacher—meeting weekly with another coach to “see if the other had witnessed any inappropriate behavior” by the music teacher—but nonetheless permitted the music teacher to transport students to and from games and swim meets.

* * * [[P]laintiff submitted the music teacher’s testimony, wherein he testified that he had “always” had students visit him at his home and that other teachers were aware that students would visit him at his home, where the abuse of plaintiff is, in part, alleged to have occurred … . …

Plaintiff also submitted an expert affidavit asserting that defendants failed to appropriately train and supervise other teachers and staff to report their knowledge of inappropriate behavior. * * *

… [D]efendants submitted the music teacher’s employment applications, wherein he submitted contradictory responses about whether he had been arrested; a reference from the principal of a junior high school where the music teacher had taught, who stated that the music teacher had been “dismissed or denied tenure” and “had a tendency to more or less pal with his seventh grade male students”; and a reference completed by a school counselor employed by a different district, who stated that the music teacher had been “dismissed or denied tenure” and that she would not employ him as a teacher in her school system. Harper v Buffalo City Sch. Dist., 2025 NY Slip Op 05595, Fourth Dept 10-10-25

Practice Point: Consult this decision for insight into the nature of the proof which will raise questions of fact in a Child Victims Act case against a school district alleging negligent supervision, training, hiring and retention.

 

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WITH RESPECT TO A RESIDENTIAL COOPERATIVE, INDIVIDUAL MEMBERS OF THE BOARD OF DIRECTORS CAN BE SUED BY A SHAREHOLDER FOR BREACH OF A FIDUCIARY DUTY, BUT THE BOARD OF DIRECTORS IS NOT AMENABLE TO SUIT APART FROM A SUIT AGAINST THE CORPORATION (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Scarpulla, determined the board of directors of a residential cooperative is not amenable to a lawsuit separate and apart from a suit against the cooperative. Here plaintiff shareholder sued the board of directors for breach of fiduciary duty after the dismissal of a similar suit against the directors individually:

New York trial courts have explicitly held that a board of directors is not an entity that may be sued separately from the corporation … . * * *

Applying the Business Corporation Law … , the residential cooperative board of defendant … is not an entity with the capacity to sue and be sued separate and apart from the corporation on whose behalf it acts. * * *

While a shareholder cannot assert allegations of breach of fiduciary duty against a board of directors, a shareholder may assert the claim against the individual directors … . Here, plaintiff originally brought breach of fiduciary duty causes of action against fourteen of the individual board members and the corporation … . Those causes of action were largely dismissed, and plaintiff may not simply replace those parties with “the board” to revive those now dismissed claims. Tahari v 860 Fifth Ave. Corp., 2025 NY Slip Op 05584, First Dept 10-8-25

Practice Point: This opinion clarifies the law. The board of directors of a corporation is not amenable to suit for breach of a fiduciary duty separate and apart from a suit against the corporation. However, individual members of the board of directors may be sued for breach of a fiduciary duty.

 

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IN THIS CHILD VICTIMS ACT SUIT AGAINST THE COUNTY ALLEGING NEGLIGENT PLACEMENT IN FOSTER CARE, THE COUNTY DID NOT DEMONSTRATE IT WAS ENTITLED TO GOVERNMENTAL FUNCTION IMMUNITY OR IMMUNITY PURSUANT TO THE SOCIAL SERVICES LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the county did not have immunity in this Child Victims Act lawsuit alleging negligent foster-care placement of plaintiff. Plaintiff alleged she was sexually abused by her foster father in the late 70’s:

“The governmental function immunity defense provides immunity for the exercise of discretionary authority during the performance of a governmental function” … . “[T]he governmental function immunity defense cannot attach unless the municipal defendant establishes that the discretion possessed by its employees was in fact exercised in relation to the conduct on which liability is predicated” … .

… [T]he County failed to establish, prima facie, that the relevant acts of the County’s employees relating to the alleged negligent supervision of the plaintiff’s foster care placement were discretionary and thus entitled to immunity … . … [E]ven if the acts at issue could potentially be considered discretionary, the County failed to demonstrate that the alleged discretion was in fact exercised in relation to the conduct on which liability is predicated … .

… Contrary to the County’s contention, it “was not entitled to qualified immunity pursuant to Social Services Law § 419, as qualified immunity does not bar recovery for the negligent supervision of children in foster care” … . M.W. v Nassau County, 2025 NY Slip Op 05550, Second Dept 10-8-25

Practice Point: Use this decision as a starting point for research into how governmental function immunity and immunity under the Social Services Law apply to a county foster-care placement. Here the court determined neither type of immunity applied in this Child Victims Act lawsuit.

 

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