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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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BASED UPON AN INTERPRETATION OF THE CLASS-ACTION SETTLEMENT AGREEMENT WHICH DID NOT SPECIFICALLY ADDRESS THE ISSUE, SUPREME COURT PROPERLY RULED THAT UNCLAIMED SETTLEMENT FUNDS CAN BE REDISTRIBUTED TO THE OTHER CLASS MEMBERS, REJECTING DEFENDANTS’ ARGUMENT THAT ANY UNCLAIMED FUNDS SHOULD BE RETURNED TO THEM (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Fisher, determined Supreme Court properly ruled that unclaimed checks payable to class members as part of a class action settlement can be redistributed to the other class members. The ruling was based upon an interpretation of the settlement agreement which did not specifically address the “unclaimed checks” issue. Defendants argued the unclaimed funds should be returned to them. The opinion is too fact-specific and detailed to fairly summarize here. O’Brien v Sagbolt LLC, 2025 NY Slip Op 05280, Third Dept 10-2-25

 

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IN THIS CHILD VICTIMS ACT CASE ALLEGING SEXUAL ABUSE BY A TEACHER, PLAINTIFF-STUDENT’S DEMAND FOR PUNITIVE DAMAGES AGAINST THE SCHOOL PROPERLY SURVIVED THE MOTION TO DISMISS, BUT THE DEMAND FOR PUNITIVE DAMAGES AGAINST THE DIOCESE DID NOT; CRITERIA EXPLAINED (FIRST DEPT). ​

The First Department, over a dissent, in a full-fledged opinion by Justice Kapnick, over a dissenting opinion, affirmed the denial of the school’s and the Episcopal Diocese’s motions to dismiss the complaint in this Child Victims Act action stemming from the alleged sexual abuse of plaintiff-student by a teacher (Mr. Bravo). The majority affirmed the denial of the motion to dismiss the request for punitive damages against the school but dismissed the demand for punitive damages against the Diocese. The dissent argued the demand for punitive damages against the school should also have been dismissed:

Plaintiff’s demand for punitive damages against the School was … properly sustained at this prediscovery stage of the litigation … . Contrary to the dissent’s position, this Court has found claims for punitive damages may be appropriate in certain negligence cases … . Specifically,”[p]unitive damages in actions involving negligent hiring, retention, or supervision generally require conduct evincing a high degree of moral culpability, so flagrant as to transcend simple carelessness, or which constitutes willful or wanton negligence or recklessness so as to evince a conscious disregard for the rights of others” … . A “conscious disregard” requires knowledge, or actual notice, of the potential of harm to others … . The complaint alleges that the School was given actual notice that Mr. Bravo was sexually abusing plaintiff and then failed to adequately investigate the allegations to such an extent that suggests ulterior motives. Further, the dissent is mistaken in its belief that plaintiff’s denial of the abuse during a meeting with school administrators negates the actual notice received by the School from the parents of her friends and a therapist, which, by itself, triggered a statutorily required response that the School did not fully implement … . * * *

Given that punitive damages are “awarded only in ‘singularly rare cases,'” they are appropriately reserved for those cases which allege that the defendants, despite having actual knowledge of the perpetrator’s propensity for the sexual abuse of children, concealed that knowledge or otherwise knowingly underresponded to that information so as to suggest that they dismissed all concern for the rights of others in favor of their own self-interest … . As plaintiff here has not alleged the knowledge required to infer any improper state of mind on behalf of the Episcopal Diocese, her demand for punitive damages against the Episcopal Diocese should be dismissed … . C.R. v Episcopal Diocese of N.Y., 2025 NY Slip Op 05144, First Dept 9-25-25

Practice Point: Consult this decision for a discussion of the allegations in a Child Victims Act complaint which will support the denial of a motion to dismiss a request for punitive damages.

 

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PLAINTIFF’S COUNSELS “AFFIRMATION OF GOOD FAITH” WAS DEFICIENT; PLAINTIFF’S MOTION TO STRIKE AN AFFIRMATIVE DEFENSE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to strike an affirmative defense was not supported by a sufficient “affirmation of good faith” from plaintiff’s counsel:

The court should have denied plaintiff’s motion to strike the answer because the affirmation of good faith from plaintiff’s counsel failed to comply with Uniform Rules for Trial Courts (22 NYCRR) § 202.20-f(b). Counsel states only perfunctorily that defendants failed to comply with four court orders for a deposition and that he contacted defendants on a certain date to confirm the deposition. Counsel failed to attest that he conducted an in-person or telephonic conference as required by 22 NYCRR 202.20-f(b) … . While counsel’s affirmation in support of the motion provides additional explanations, such as that “[they] made an effort” to contact defendants’ counsel and that “[their] office made [an] effort to confirm the deposition,” the affirmation fails to specify the mode of communications, by whom or to whom the communications were made, whether any messages were left, and whether counsel followed up with the attempt to confirm the deposition (see 22 NYCRR 202.7[a], [c] … . Servan v ES Bldrs. Group LLC, 2025 NY Slip Op 05184, First Dept 9-25-25

Practice Point: Consult this decision for the required contents of plaintiff’s counsel’s “affirmation of good faith” detailing efforts to resolve the issues with defendant’s counsel before moving to strike an affirmative defense. Here the affirmation was deemed deficient, requiring denial of the motion.

 

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THE ISSUES OF NEGLIGENCE AND PROXIMATE CAUSE WERE NOT INTERTWINED; THE VERDICT FINDING DEFENDANT NEGLIGENT BUT THAT THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE INJURY SHOULD NOT HAVE BEEN SET ASIDE; IN RESPONSE TO A JURY NOTE, THE JUDGE PROPERLY TOLD THEM THEY COULD FIND THAT THE ACCIDENT DID NOT HAPPEN (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, reversing Supreme Court, determined the motion to set aside the verdict finding the defendant negligent but that the negligence was not the proximate cause of the accident should not have been set aside. The plaintiff alleged repair to the steering mechanism of his van was negligently done, that he suddenly lost the ability to steer the van and it crashed into a concrete barrier which was parallel to the roadway. The evidence was such that the jury could have found the accident did not happen in the way alleged by the plaintiff. The damage to the van did not appear to be consistent with the accident as described by plaintiff. When the jury sent a note asking whether they could find that the accident didn’t happen, the trial judge properly told them they could so find:

The narrow question we must address to determine this appeal is whether the Supreme Court properly, in effect, granted those branches of the plaintiff’s motion which were pursuant to CPLR 4404(a) to set aside so much of the jury verdict as, upon finding that the defendants were negligent, found that such negligence was not a substantial factor in causing injury to the plaintiff … . We answer this question in the negative, holding that the court erred by, in effect, granting those branches of the plaintiff’s motion where, as here, issues of negligence and proximate cause are not inextricably intertwined as a result of there being a rational view of the evidence that the plaintiff’s accident did not occur as claimed. Additionally, this appeal provides the opportunity to state our view that, in a personal injury action where there were questions about whether the alleged injury-producing event actually occurred as claimed by the plaintiff here, it was not error for the court to respond to a jury note by instructing that the jury could consider whether the alleged accident occurred. * * *

If, as the Supreme Court concluded in this instance, the jury’s deliberation involved an uncomplicated determination of whether the defendants had negligently installed the pitman arm of the plaintiff’s van, which, in turn, resulted in the plaintiff’s loss of steering and the accident as described, then the jury’s finding of negligence without a finding of proximate cause would be inconsistent. But the trial evidence was not so uncomplicated as to be subject to only one view of the events. Here, viewing the evidence in the light most favorable to the defendants, as we must in these instances, there was a valid line of reasoning and permissible inferences upon which the jury could parse the alleged negligent repair from the alleged proximate cause and determine that while the defendants were negligent, they were not a proximate cause of the plaintiff’s claimed accident … . Krohn v Schultz Ford Lincoln, Inc., 2025 NY Slip Op 05072, Second Dept 9-24-25

Practice Point: Here the jury concluded the defendant’s repair of plaintiff’s van was negligent, but they also concluded the negligence was not the proximate cause of the accident. That verdict should not have been set aside. The evidence was such that the jury could have found that the accident as described by the plaintiff didn’t happen. The judge properly instructed them in response to a note that they could so find.

 

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DEFENDANT AND A WITNESS SAID THE LIGHT WAS RED, PLAINTIFF SAID THE LIGHT WAS GREEN, SUMMARY JUDGMENT IS PRECLUDED, CREDIBILTY CANNOT BE CONSIDERED (FIRST DEPT).

The First Department, reversing Supreme Court in this intersection bicycle-vehicle accident case, reminds us that credibility plays no role in a summary judgment ruling. Plaintiff, the bicyclist, alleged he entered the intersection with a green light. Defendant and a witness alleged plaintiff entered the intersection against a red light. The conflicting evidence required denial of defendants’ motion for summary judgment:

The parties’ conflicting versions of how the accident occurred preclude summary judgment … . It is well settled that a “court’s role in deciding a motion for summary judgment is issue finding, not issue determination. . . . Moreover, [i]t is not the court’s function on a motion for summary judgment to assess credibility” … . Plaintiff’s version of events “is not incredible as a matter of law, and the different versions of the facts submitted by the parties raise[ ] credibility questions for a jury to resolve” … . Wachtel v Alan Joel Communications, Inc., 2025 NY Slip Op 05053, First Dept 9-23-25

Practice Point: Credibility plays no role at the summary judgment stage.

 

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TO DEFEAT A CPLR 3215(C) MOTION TO DISMISS AN ACTION AS ABANDONED, “SUFFICIENT CAUSE” FOR A DELAY IN MAKING A MOTION FOR A DEFAULT JUDGMENT MUST BE DEMONSTRATED, NOT THE CASE HERE; THE DISSENTERS ARGUED PARTICIPATION IN THE LITIGATION PROCEEDINGS WITH RESPECT TO OTHER PARTIES DEMONSTRATED THERE WAS NO INTENT TO ABANDON THE ACTION; THE MAJORITY REJECTED THE DISSENTERS’ ARGUMENT, IN PART BECAUSE IT WAS NOT RAISED BELOW (FIRST DEPT).

The First Department, reversing Supreme Court, determined the NYC Department of Housing Preservation and Development’s (HPD’s) motion to dismiss the action against it by defendant Cliffcrest as abandoned should have been granted. The two dissenters relied on an argument not raised in Supreme Court:

The motion court should have granted HPD’s motion to dismiss the action against it as abandoned under CPLR 3215(c) … . The record does not support a finding that Cliffcrest “[took] proceedings” for entry of a judgment within one year of HPD’s default within the meaning of CPLR 3215(c) and Cliffcrest fails to provide sufficient cause for the delay, as required by the rule. Cliffcrest waited over five years to seek a default judgment against HPD. None of the “proceedings” it cites — Cliffcrest’s responding to discovery requests, engaging in motion practice, and participating in settlement negotiations — was directed at, or pertinent to, the entry of a default judgment against HPD. Nor does Cliffcrest show that it took any relevant proceedings within one year after HPD defaulted.

The dissent relies on an argument not raised. Specifically, Cliffcrest does not contend that it demonstrated “sufficient cause . . . why the complaint should not be dismissed” (CPLR 3215[c]). Instead, Cliffcrest emphasizes that the proceedings demonstrated a lack of intent to abandon its claims. CPLR 3215(c)’s reference to “abandon[ment],” however, is merely descriptive of the statute’s purpose (see id. [“dismiss[al] of the complaint as abandoned”]). Cliffcrest’s general showing of lack of abandonment is therefore insufficient to prevent dismissal when not tethered to the “sufficient cause” provision as a source of authority. Otherwise, and as noted, Cliffcrest unpersuasively argues that the general litigation activities qualified as “proceedings for the entry of judgment” even though none of the proceedings identified occurred within one year of HPD’s default and none were directed at a default judgment’s entry. 938 St. Nicholas Ave. Lender LLC v 936-938 Cliffcrest Hous. Dev. Fund Corp., 2025 NY Slip Op 05052, First Dept 9-23-25

Practice Point: Consult this decision for a discussion of the evidence required to defeat a motion to dismiss an action as abandoned.

 

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