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THE SIX-MONTH STATUTE OF LIMITATIONS IN THE EMPLOYMENT CONTRACT WITH PLAINTIFF WAS REASONABLE AND ENFORCEABLE; THEREFORE PLAINTIFF’S EMPLOYMENT DISCRIMINATION ACTION, WHICH WAS COMMENCED SIX MONTHS AND ONE DAY AFTER PLAINTIFF’S EMPLOYMENT WAS TERMINATED, WAS TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the six-month statute of limitations in the employment contract with plaintiff was reasonable and enforceable. Therefore plaintiff’s action, which was commenced one day after the six-month limitation period had expired, was time-barred:

“Parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations” … . “‘[A]n agreement which modifies the Statute of Limitations by specifying a shorter, but reasonable, period within which to [*2]commence an action is enforceable provided it is in writing'” … . CPLR 201 provides that an action “must be commenced within the time specified in this article unless a different time is prescribed by law or a shorter time is prescribed by written agreement.”

Pursuant to CPLR 3211(a)(5), “‘a moving defendant must establish, prima facie, that the time within which to commence the action has expired'” … . Once this threshold showing is met, the burden then shifts to the plaintiff to “‘raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether the action was actually commenced within the applicable limitations period'” … .

Here, the defendants produced the employment application, which contained the provision regarding the six-month limitations period and which was signed by the plaintiff. The plaintiff does not dispute that her employment was terminated on November 23, 2021. The defendants therefore established … that the limitations period expired on May 23, 2022. The plaintiff commenced this action on May 24, 2022, one day after the expiration of the limitations period. Salati v Northwell Health, 2025 NY Slip Op 01660, Second Dept 3-19-25

Practice Point: Here the six-month statute of limitations in plaintiff’s employment contract was deemed reasonable and enforceable. Therefore plaintiff’s employment discrimination action, commenced six months and one day after her employment was terminated, was time-barred.

 

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THE DEFENDANT SCHOOL IN THIS CHILD VICTIMS ACT CASE DID NOT DEMONSTRATE WHEN PLAINTIFF COULD HAVE DISCOVERED THE ALLEGED FRAUD WHICH INDUCED HIM TO SIGN RELEASES; THEREFORE THIS FRUAD-BASED ACTION SHOULD NOT HAVE BEEN DISMISSED AS TIME-BARRED; THE COMPLAINT STATED CAUSES OF ACTION FOR FRAUDULENT INDUCEMENT AND FRAUDULENT CONCEALMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant school in this Child Victims Act case (1) did not demonstrate the fraud-based causes of action to set aside or rescind the releases signed by the plaintiff were time-barred and (2) was not entitled to dismissal of the fraudulent inducement and fraudulent concealment causes of action. Plaintiff alleged he would not have signed the releases had he known the guidance counsellor who allegedly sexually abused him would be allowed to continue in his employment, and he would not have signed the releases had he known there were other instances of sexual misconduct by the guidance counsellor of which the school was aware:  With respect to the statute of limitations for a fraud-based action, the court explained:

“A fraud-based action must be commenced within six years of the fraud or within two years from the time the plaintiff discovered the fraud or could with reasonable diligence have discovered it, whichever is later” (… see CPLR 203[g]; 213[8]). “The inquiry as to whether a plaintiff could, with reasonable diligence, have discovered the fraud turns on whether the plaintiff was possessed of knowledge of facts from which the fraud could be reasonably inferred” … . “Generally, knowledge of the fraudulent act is required and mere suspicion will not constitute a sufficient substitute. Where it does not conclusively appear that a plaintiff had knowledge of facts from which the fraud could reasonably be inferred, a [fraud-based cause of action] should not be dismissed on motion and the question should be left to the trier of facts” … . “Ordinarily, an inquiry into when a plaintiff should have discovered an alleged fraud presents a mixed question of law and fact” … .

Here, the defendant failed to establish that the causes of action to set aside or rescind the releases on the ground of fraud were time-barred pursuant to CPLR 3211(a)(5) … . “[T]here was no indication in the [amended complaint] or in the papers submitted by the defendant[ ] on [its] motion as to when the plaintiff became aware” of the alleged fraudulent conduct … . In any event, the plaintiff, in affidavits submitted in opposition to the motion, indicated that he learned of certain facts underlying the fraud-based causes of action in early 2021 … . The defendant failed to demonstrate that the plaintiff, by exercising reasonable diligence, could have discovered those facts at some point prior to the two-year period immediately preceding the commencement of this action … . Gormley v Marist Bros. of the Schs., Province of the United States of Am., 2025 NY Slip Op 01612, Second Dept 3-19-25

Practice Point: Here defendant did not demonstrate when plaintiff could or should have become aware of the defendant’s alleged fraud. Therefore the motion to dismiss the fraud-based action as time-barred should not have been granted.

Practice Point: Consult this decision for an explanation of what must be alleged to state causes of action for fraudulent inducement and fraudulent concealment in the context of setting aside or rescinding a release.

 

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BOTH INSURANCE POLICIES WERE DEEMED TO COVER SEXUAL HARASSMENT CLAIMS AGAINST AN EMPLOYER AND ITS EMPLOYEE BROUGHT BY SEVERAL CO-EMPLOYEES SPANNING YEARS AND DIFFERENT WORKPLACES; THE POLICY LANGUAGE DID NOT RESTRICT THE COVERAGE FOR “RELATED” OR “INTERRELATED ACTS” TO A SINGLE PLAINTIFF (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Singh, determined the language of the two insurance policies covered sexual harassment claims against an employer and its employee brought by several co-employees spanning years and different workplaces. The case is fact-specific and turned on the contractual definition of “related wrongful acts” in one policy and “interrelated wrongful acts” under the other policy:

Nothing in the language of either policy restricts Related or Interrelated Wrongful Acts to those harming the same plaintiff. * * *

… [I] both policies, common facts and common causation are presented in the disjunctive. Shared causation is necessary only in that the allegations must “aris[e] from” the “common nexus or nucleus of facts.” “In insurance contracts, the phrase ‘arising out of’ is ordinarily understood to mean originating from, incident to, or having connection with. It requires only that there be some causal relationship between the injury and the risk for which coverage is provided or excluded” … . * * * Zurich Am. Ins. Co. v Giorgio Armani Corp., 2025 NY Slip Op 01335, First Dept 3-11-25

Practice Point: The language used in an insurance policy determines the coverage. Here the policy language was such that it covered sexual harassment claims spanning years and different workplaces brought by several plaintiffs as “related” or “interrelated acts.”

 

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IT WAS ALLEGED A TEACHER SEXUALLY ABUSED PLAINTIFF STUDENT ONCE OR TWICE A WEEK FOR THREE YEARS ON SCHOOL GROUNDS, SOMETIMES FOLLOWED BY ABUSE OFF SCHOOL GROUNDS; THE NEGLIGENT SUPERVISION CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the school’s motion for summary judgment in this Child Victims Act case should not have been granted. It was alleged plaintiff-student was sexually abused by a teacher once or twice a week for three years. Based on the frequency of the alleged abuse, the school did not demonstrate it did not have constructive notice of the abuse and properly supervised the teacher. Because abuse which allegedly occurred off the school premises was preceded by abuse on school grounds, the off-premises-abuse causes of action should not have been dismissed:

… [T]he defendants failed to establish, prima facie, that they lacked constructive notice of the teacher’s alleged abusive propensities and conduct … . In particular, given the frequency of the alleged abuse, which occurred once or twice per week over the course of three school years in the same closet while the teacher left the other students in his class unattended, the defendants failed to eliminate triable issues of fact as to whether they should have known of the abuse … . Additionally, the defendants failed to eliminate triable issues of fact as to whether their supervision of the teacher was negligent … .

Further, although the plaintiff alleged acts of sexual abuse that occurred outside of school premises and school hours, the defendants’ submissions showed that those alleged acts were preceded by instances when the plaintiff allegedly was sexually abused by the teacher during school hours on a regular basis. Sallustio v Southern Westchester Bd. of Coop. Educ. Servs., 2025 NY Slip Op 00690, Second Dept 2-5-25

Practice Point: Consult this decision for a concise summary of the elements of the causes of action where a teacher is accused of frequently sexually abusing a student both on and off school grounds.

 

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THE SCHOOL DISTRICT DID NOT ELIMINATE QUESTIONS OF FACT ABOUT WHETHER IT PROPERLY EVALUATED THE TEACHER’S BACKGROUND BEFORE HIRING HER AND WHETHER IT HAD CONSTRUCTIVE KNOWLEDGE OF THE TEACHER’S ALLEGED ABUSE OF PLAINTIFF STUDENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the defendant school district did not demonstrate it took adequate measures to the evaluate the teacher’s background and did not demonstrate it did not have constructive notice of the teacher’s alleged sexual abuse of plaintiff student:

… [T]he defendants failed to establish, prima facie, that the School District was not negligent with respect to the hiring of the teacher. The defendants’ submissions in support of their motion failed to eliminate triable issues of fact as to whether the School District took appropriate measures to evaluate the teacher’s employment and fitness at the time she was hired … .

… [T]he defendants failed to establish, prima facie, that the School District lacked constructive notice of the teacher’s abusive propensities and conduct … . In particular, given the frequency of the alleged abuse, which occurred between 50 and 100 times over the course of two school years, inter alia, in a classroom and the school parking lot during school hours, the defendants did not eliminate triable issues of fact as to whether the School District should have known of the abuse … . The defendants similarly failed to demonstrate, prima facie, that the School District’s supervision of both the teacher and the plaintiff was not negligent given that, among other things, the teacher was on “probationary” status during the relevant period, some of the incidences occurred while the plaintiff was alone with the teacher in her classroom, the teacher’s personnel file contains only a single evaluation from the school during the relevant period, and multiple former students testified at their respective depositions that the teacher’s inappropriate relationship with the plaintiff was readily apparent … . Brauner v Locust Val. Cent. Sch. Dist., 2025 NY Slip Op 00418, Second Dept 1-29-25

Practice Point: Here in this Child Victims Act case the school district did not demonstrate it properly evaluated the teacher’s background before hiring her and did not demonstrate it did not have constructive notice of the teachers’ alleged abuse of plaintiff student which allegedly occurred up to 100 times in a classroom and the school parking lot.

 

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PLAINTIFF POLICE OFFICER WAS PARTICIPATING IN A TRAINING SESSION WHEN HE WAS BITTEN BY A POLICE DOG; THE TRAINING WAS A GOVERNMENTAL FUNCTION; THEREFORE THE MUNICIPALITY MUST HAVE OWED PLAINTIFF A SPECIAL DUTY TO BE LIABLE, NOT THE CASE HERE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the municipality (City of Middletown) did not owe a special duty to plaintiff police officer, who was bitten by a police dog during training: The dog handler, Officer McDonald (a City of Middletown police officer), and plaintiff were participants in training sessions conducted by the NYS Homeland Security and Emergency Services when the unleased dog bit plaintiff:

As part of the training, the police dogs were off-leash. The plaintiff, who was participating in a different training event in a different building, entered the building where the explosives detection training exercise was being held and was still in progress when he was bitten by Officer McDonald’s police dog.

When a negligence cause of action is asserted against a municipality, and the municipality was exercising a governmental function, a municipality may not be held liable unless it owed a special duty to the injured party … . Such a special duty can arise, as relevant here, where “the municipality took positive control of a known and dangerous safety condition” … . Here, the defendants established, prima facie, that they did not owe a special duty to the plaintiff. There was no evidence that Officer McDonald [the dog handler] took positive control of a known and dangerous safety condition which gave rise to the plaintiff’s injuries … . The defendants established that Officer McDonald was an attendee at a training program conducted by the New York State Homeland Security and Emergency Services at a New York State facility, that he merely participated in the training exercise, and that he took direction from the NYPD canine instructor. Mahar v McDonald, 2025 NY Slip Op 00315, Second Dept 1-22-25

Practice Point: Here the police dog handler did not have control of the unleashed dog when it bit plaintiff. The dog and the handler were participating in an explosive-detection training session conducted by a third party. Because the dog handler had not taken control of a known and dangerous safety condition (the dog) at the time plaintiff was injured, the dog handler did not owe plaintiff a special duty, a prerequisite to municipal liability.

 

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THE SCHOOL DISTRICT’S OWN SUBMISSIONS RAISED QUESTIONS OF FACT ABOUT NEGLIGENT HIRING AND RETENTION OF A TEACHER’S AIDE AND NEGLIGENT SUPERVISION OF PLAINTIFF STUDENT IN THIS CHILD VICTIMS ACT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant school district’s own submissions raised questions of fact in this Child Victims Act case alleging sexual abuse of plaintiff student by a teacher’s aide:

… [T]he defendants failed to establish, prima facie, that the school district was entitled to judgment as a matter of law dismissing the causes of action alleging negligence and negligent supervision and retention insofar as asserted against … . In support of their motion, the defendants submitted, among other things, transcripts of the deposition testimony of the plaintiff and that of his third grade teacher, who served as the direct supervisor of the teacher’s aide. The plaintiff testified that the teacher’s aide singled him out for attention in the classroom and hugged him in the hallways … . While such conduct, without more, might not have been enough to warrant denial of the defendants’ motion, the plaintiff also testified that, upon dismissal from school, the teacher’s aide frequently walked him to her car in the presence of other staff members and then drove him to her home, where the alleged sexual abuse primarily occurred. The third grade teacher also testified that it was “[in]appropriate” for teachers and other school district employees to drive students in their personal vehicles or take students to their homes, conduct which the teacher also believed violated school policies … .

Therefore, the defendants’ own submissions failed to eliminate triable issues of fact as to whether the school district “had notice of the potential for harm to the . . . plaintiff such that its alleged negligence in supervising and retaining [the teacher’s aide] placed [her] in a position to cause foreseeable harm” … . Kastel v Patchogue-Medford Union Free Sch. Dist., 2025 NY Slip Op 00210, Second Dept 1-15-25

Practice Point: The criteria for a school district’s liability for negligent hiring and retention and negligent supervision in a Child Victims Act case concisely laid out.

 

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PLAINTIFF ALLEGED HE WAS SEXUALLY ABUSED BY AN EMPLOYEE OF THE COUNTY SHERIFF’S DEPARTMENT IN A GUARDED DEPARTMENT PARKING LOT AND IN A LOCKED BATHROOM IN THE JAIL; BECAUSE THE COUNTY WAS ENGAGED IN A GOVERNMENTAL, NOT A PROPRIETARY, FUNCTION (PROVIDING SECURITY FOR THE PARKING LOT AND JAIL), PLAINTIFF MUST DEMONSTRATE THE COUNTY OWED HIM A SPECIAL DUTY, WHICH HE WAS UNABLE TO DO (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the negligence action against the county in this Child Victims Act case should have been dismissed. Plaintiff alleged defendant Weis, a corrections officer employed by defendant Suffolk County Sheriff’s Department, sexually abused him in a guarded parking lot at the Sheriff’s Department and in a locked bathroom in the jail. The Second Department held that the alleged negligence related to a governmental function, not a proprietary function of the Sheriff’s Department, requiring plaintiff to demonstrate he was owed a “special duty:”

… [T]he specific acts or omissions that allegedly caused the plaintiff’s injuries were the defendant’s decisions regarding the level of security and surveillance to provide in a fenced-in jail parking lot, with admission controlled by a posted guard, or within the facility itself. Those decisions go beyond the scope of the defendant’s duty as a landlord and constitute actions undertaken in the defendant’s police protection capacity … . Accordingly, the specific acts or omissions at issue here involved a governmental function.

… [B]ecause the defendant was engaged in a governmental function, the plaintiff was required to demonstrate that the municipality owed him a “special duty” … . A special duty can arise, as relevant here, where “the plaintiff belonged to a class for whose benefit a statute was enacted” or “the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally” … . Here, the defendant demonstrated, prima facie, that it did not owe a special duty to the plaintiff, and the plaintiff failed to raise a triable issue of fact in opposition … . Neary v Suffolk County Sheriff’s Dept., 2025 NY Slip Op 00105, Second Dept 1-8-25

Practice Point: It is not easy to determine whether a governmental entity is engaged in a governmental function or a proprietary function at the time of an alleged negligent act or omission. Here plaintiff alleged abuse by a Sheriff’s Department employee in the guarded department parking lot and in a locked bathroom in the jail. The Second Department deemed the security of the parking lot and the jail a governmental function (acting as a landlord) and held the county could not be liable unless it owed plaintiff a ‘special duty.” Plaintiff was unable to demonstrate a “special duty.”

 

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DEFENDANT SCHOOL DISTRICT DID NOT DEMONSTRATE IT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE TEACHER’S PROPENSITY FOR SEXUAL ABUSE OR THE REPEATED, LONG-TERM ABUSE OF PLAINTIFF STUDENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this negligent hiring and negligent supervision case, over a two-justice dissent, determined the defendant school district did not demonstrate it did not have constructive notice of the sexual abuse of plaintiff by a teacher (Faralan) which occurred repeatedly over an extended period during school hours:

… [T]he district failed to meet its prima facie burden of demonstrating that it was not negligent with respect to the hiring, retention, and supervision of Faralan or that it was not negligent with respect to its supervision of the plaintiff. The district submitted no evidence regarding its hiring, retention, or supervision of Faralan, who was a probationary employee during the time when he sexually abused the plaintiff on school grounds, including times when he was tutoring her one-on-one … . Furthermore, the district failed to establish, prima facie, that it lacked constructive notice of Faralan’s abusive propensities and conduct, particularly given the frequency of the abuse, which occurred several times per week over an extended period of time in the same classroom and hallway during tutoring sessions and at times when others were present … . Stanton v Longwood Cent. Sch. Dist., 2024 NY Slip Op 06600, Second Dept 12-24-24

Practice Point: To warrant summary judgment in a negligent hiring and supervision suit alleging abuse of a student by a teacher, the school district must affirmatively demonstrate it did not have constructive notice of the teacher’s propensity for abuse and/or the abuse itself. Plaintiff’s allegations of repeated abuse during school hours over an extended period of time raised a question of fact re: the district’s constructive notice.

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AN ELECTRICAL SUBCONTRACTOR WHICH IS NOT LICENSED IN NEW YORK CITY CANNOT SUE FOR PAYMENT FOR WORK DONE IN THE CITY AND CANNOT FORECLOSE ON RELATED MECHANIC’S LIENS (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff electrical subcontractor, Mikoma Tech, did not prove it was licensed to perform electrical work in New York City. Therefore plaintiff could not sue for breach of contract or under a quantum meruit theory and could not foreclose on mechanic’s liens:

… [T]he complaint … failed to allege that Mikoma Tech was licensed to perform electrical work in New York City. As Mikoma Tech was not licensed to perform electrical work in the City, it may not recover against the defendants under a breach of contract or quantum meruit theory and has forfeited the right to foreclose on mechanic’s liens … . Mikoma Elec., LLC v Otek Bldrs., LLC, 2024 NY Slip Op 06332, Second Dept 12-18-24

Practice Point: The rule requiring a license to perform electrical work in New York City is strictly construed. The unlicensed contractor cannot sue for payment and cannot foreclose mechanic’s liens.

 

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