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PLAINTIFF ALLEGED HE WAS KNOCKED TO THE GROUND BY DEFENDANTS’ DOG; DEFENDANTS DEMONSTRATED THEY WERE NOT AWARE OF AND SHOULD NOT HAVE BEEN AWARE OF THE DOG’S VICIOUS PROPENSITIES AND PLAINTIFF FAILED TO RAISE A QUESTION OF FACT TO THE CONTRARY; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this “plaintiff knocked to the ground by a dog” action should have been granted. Plaintiff was unable to raise a question of fact in the face of defendants’ proof they were not aware of, and should not have been aware of, the dog’s vicious propensities:

“To recover in strict liability for damages caused by a dog, a plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of the dog’s vicious propensities” … . “Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation” … . “Knowledge of vicious propensities may be established by evidence of, among other things, a prior similar attack or by evidence that the dog was known to growl, snap, or bare its teeth” … . In contrast, “‘[k]nowledge of normal canine behavior, such as running around, pulling on a leash and barking at another dog or passerby, barking at strangers, or chasing animals, will not support a finding of knowledge of vicious propensities'” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that they were not aware, nor should have been aware, that the dog had vicious propensities … . In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s affidavit raised only feigned issues of fact designed to avoid the consequences of his earlier deposition testimony … . Yi-Ching Liu v Chu, 2026 NY Slip Op 00284, Second Dept 1-21-26

Practice Point: Here plaintiff alleged he was injured when defendants’ dog knocked him to the ground. Consult this decision for insight into the proof a defendant dog-owner must present to demonstrate defendant was not not aware of, and should not have been aware of, a dog’s “vicious propensities.”

 

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HERE PLAINTIFF’S SIGNING A CONSENT FORM DID NOT ENTITLE DEFENDANT TO SUMMARY JUDGMENT IN THIS “LACK OF INFORMED CONSENT” MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this “lack of informed consent” medical malpractice case should not have been granted. The court noted that plaintiff’s signing a consent form was not enough to establish defendant’s entitlement to judgment as a matter of law:

“To establish a cause of action to recover damages based upon lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury'” … . Thus, “a defendant can establish entitlement to summary judgment by demonstrating that the plaintiff signed a detailed consent form after being apprised of alternatives and foreseeable risks, by demonstrating that a reasonably prudent person in the plaintiff’s position would not have declined to undergo the surgery, or by demonstrating that the actual procedure performed for which there was no informed consent was not a proximate cause of the injury” … . “If the defendant makes such a showing, the burden then shifts to the plaintiff to raise a triable issue of fact as to those elements on which the defendant met its prima facie burden of proof” … .

Here, the defendant failed to establish his prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging lack of informed consent … . “The mere fact that the plaintiff signed a consent form does not establish the defendant[‘s] prima facie entitlement to judgment as a matter of law” … , and the defendant’s submissions, including a transcript of the plaintiff’s deposition testimony, did not establish that the plaintiff was given sufficient information on the risks and alternatives regarding the materials used and the procedures performed … . Furthermore, the defendant failed to establish, prima facie, that the procedure performed for which there was no informed consent was not a proximate cause of the plaintiff’s injury. Rymer v Bernstein, 2026 NY Slip Op 00273, Second Dept 1-21-26

Practice Point: Here n this  “lack of informed consent” medical malpractice action, plaintiff’s signing a consent form did not entitle defendant to summary judgment as a matter of law.

 

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HERE THE NATURE OF INFANT PLAINTIFF’S INJURIES WAS PROBATIVE OF HOW THE ACCIDENT OCCURRED; PLAINTIFF ALLEGED DEFENDANTS’ VAN RAN OVER INFANT PLAINTIFF’S FOOT; DEFENDANTS ALLEGED INFANT PLAINTIFF WAS INJURED WHEN SHE FELL OFF HER BICYCLE; PLAINTIFFS’ MOTION FOR A UNIFIED TRIAL ON LIABILITY AND DAMAGES SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the denial of plaintiffs’ motion for a unified trial on liability and damages was an abuse of discretion. Plaintiffs alleged defendants’ van ran over infant plaintiff’s foot. Defendants alleged infant plaintiff was injured when she fell off her bicycle. Because the nature of the injury was relevant to proof of defendants’ liability, an unified trial was necessary:

“Unified trials should only be held ‘where the nature of the injuries has an important bearing on the issue of liability'” … . “‘The party opposing bifurcation has the burden of showing that the nature of the injuries necessarily assists the factfinder in making a determination with respect to the issue of liability'” … . “Although bifurcation is encouraged in appropriate settings, bifurcation is not an absolute given and it is the responsibility of the trial judge to exercise discretion in determining whether bifurcation is appropriate in light of all relevant facts and circumstances presented by the individual cases” … . Thus, “‘[t]he decision whether to conduct a bifurcated trial rests within the discretion of the trial court, and should not be disturbed absent an improvident exercise of discretion'” … .

Here, the plaintiffs and [defendants] offered conflicting accounts of how the infant plaintiff allegedly was injured, and the plaintiffs demonstrated that evidence regarding the nature of the infant plaintiff’s alleged injuries was probative in determining how the accident occurred … . I.R. v Santos, 2026 NY Slip Op 00270, Second Dept 1-21-26

Practice Point: It is a matter of judicial discretion whether to hold a bifurcated or a unified personal-injury trial on liability and damages. But where the nature of the injury is relevant to proving liability, it is an abuse of discretion to deny a motion for a unified trial.

 

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A TREE IS NOT A “BUILDING OR STRUCTURE” WITHIN THE MEANING OF LABOR LAW 240 (1); THEREFORE PLAINTIFF’S INJURY, INCURRED WHILE CUTTING A LIMB OFF A TREE, WAS NOT COVERED BY THE LABOR LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s injury while he was cutting a tree was not covered by Labor Law 240 (1). Plaintiff, a county parks department employee, argued that the tree cutting and removal was part of a larger construction project, i.e., setting up a holiday light show:

“Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites” … . The statute “applies where an employee is engaged ‘in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure'” … . “[T]ree cutting and removal, in and of themselves, are not activities subject to Labor Law § 240(1). Those activities are generally excluded from statutory protection because a tree is not a building or structure, as contemplated by the statute but, rather, ‘a product of nature'” … .

Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 240(1) by submitting evidence demonstrating that, at the time of his accident, the plaintiff was engaged in tree cutting and removal, which “constituted routine maintenance outside of a construction or renovation context” … . In support of its motion, the defendant submitted, inter alia, transcripts of the deposition testimony of James Leonard, the director of general maintenance for the Department, and Russell Argila, a senior maintenance mechanic in the general maintenance department. Leonard testified that, on the date of the accident, the plaintiff and his coworkers were engaged in “thinning out, pruning trees, dead branches along . . . [a] hillside,” and that the tree the plaintiff was cutting at the time of his accident was part of that work. Argila testified that the tree crew, of which the plaintiff was a member, was “coming up there to clean it up, to do their normal tree work,” and denied that the purpose of the tree work was to prepare for the installation of the [light show]. Peterkin v Westchester Parks Found., Inc., 2026 NY Slip Op 00268, Second Dept 1-21-26

Practice Point: Here tree cutting and removal was deemed “routine maintenance” which was not covered by Labor Law 240 (1) because a tree is not a “building of structure.”

 

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IN THIS PARKING LOT SLIP AND FALL CASE, THE DEFENDANTS FAILED TO PROVE WHEN THE AREA WAS LAST INSPECTED OR CLEANED OF ICE AND SNOW; THEREFORE DEFENDANTS DID NOT PROVE A LACK OF CONSTRUCTIVE NOTICE OF THE ICY CONDTION AND SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall action and denying defendants’ summary judgment motion, determined defendants did not demonstrate they did not have constructive notice of the icy condition. To demonstrate a lack of constructive notice, a defendant must prove the area of the slip and fall was recently inspected or cleaned. Proof of general snow and ice removal practices is not enough:

“In moving for summary judgment in an action predicated upon the presence of snow or ice, the defendants [have] the burden of establishing, prima facie, that [they] neither created the snow or ice condition that allegedly caused the plaintiff to fall nor had actual or constructive notice of that condition” … . “Accordingly, a property owner seeking summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it” … .

Here, the defendants failed to establish, prima facie, that they lacked constructive notice of the alleged icy condition. The defendants’ maintenance employee provided only general information about his snow and ice removal practices, and he failed to specify when he last salted, removed ice from, or inspected the area where the plaintiff fell relative to the time of the accident … . Jackson v A M E Zion-Trinity Hous. Dev. Fund Co., Inc., 2026 NY Slip Op 00243, Second Dept 1-21-26

Practice Point: There used to be reversals of slip and fall cases on this ground every week for ten years or so. Now they are rare.

 

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DISAGREEING WITH THE THIRD DEPARTMENT, THE SECOND DEPARTMENT HELD THAT THE “DISMISSAL WITHOUT PREJUDICE” OF A MOTION FOR A REDUCED SENTENCE PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) FOR FAILURE TO PROVIDE SUFFICIENT EVIDENCE CORROBORATING THAT DEFENDANT WAS A VICTIM OF DOMESTIC VIOLENCE IS APPEALABLE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice LaSalle, disagreeing with the Third Department, determined that the “dismissal without prejudice” of a motion for a reduced sentence pursuant to the Domestic Violence Survivors Justice Act (DVSJA) constitutes a denial of the motion which is appealable:

… [W]e disagree with the Third Department and conclude that under the plain language of CPL 440.47(3)(a), an order “dismissing” a resentencing application at step two pursuant to CPL 440.47(2)(d) is an order “denying resentencing” … , rendering it appealable as of right pursuant to CPL 440.47(3)(a). This is because the effect of an order “dismissing” a resentencing application is that the defendant has been denied resentencing. We conclude that the fact that the statute uses the word “dismiss” in CPL 440.47(2)(d) (when indicating what the court shall do with an application for resentencing that does not contain evidence corroborating the defendant’s claim that he or she was a victim of domestic violence at the time of the offense) and “denying” in CPL 440.47(3)(a) (when indicating what orders an appeal may be taken from) does not mean that the Legislature did not intend for a defendant to be able to appeal from an order determining that a defendant has failed to provide evidence … corroborating the defendant’s claim that he or she was a victim of domestic violence at the time of the offense. People v Nymeen C., 2026 NY Slip Op 00144, Second Dept 1-14-26

Practice Point: There is a split of authority on the question whether the “denial without prejudice” of a defendant’s motion for a reduced sentence pursuant to the Domestic Violence Survivors Justice Act (DVSJA) is appealable. It is not appealable in the Third Department but is appealable in the Second Department.

 

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THE INCIDENT IN WHICH PLAINTIFF WAS INJURED BY BROKEN GLASS IN A DOOR WAS CAPTURED ON VIDEO WHICH WAS NEGLIGENTLY ERASED; PLANTIFF ALLEGED THE GLASS BROKE WHEN PLAINTIFF PULLED ON THE DOOR; AN EMPLOYEE OF THE BUILDING’S SECURITY COMPANY WHO SAW THE VIDEO CLAIMED PLAINTIFF PUNCHED THE GLASS; PRECLUSION OF TESTIMONY ABOUT THE CONTENTS OF THE VIDEO WAS TOO SEVERE A SANCTION FOR SPOLIATION; PLAINTIFF WAS ENTITLED TO AN ADVERSE INFERENCE JURY INSTRUCTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, over a two-justice concurrence, determined the video showing plaintiff’s injury from broken glass in a door was negligently, not intentionally, erased. Therefore the proper sanction was an adverse inference charge, not the preclusion of any evidence about the contents of the video. Plaintiff alleged the glass broke when plaintiff pulled on the door. Williams, an employee of the building-security company who viewed the video, claimed plaintiff punched the glass:

… [P]laintiff showed that the defendants had an obligation to preserve the video surveillance footage of the incident at the time that the footage was destroyed. Williams learned that the glass in the door was broken the same day that the incident occurred, and she investigated and documented it. Furthermore, the defendants’ site manager testified at a deposition that the plaintiff’s mother called after the incident to report that the plaintiff’s arm had gone through the glass in the door, causing “severe injury,” and that he was in the hospital. After receiving this report, the site manager testified, she spoke with Williams and learned that Williams had viewed video surveillance footage depicting the incident and had created an incident report. “Given the nature of the plaintiff’s injuries and the immediate documentation and investigation into the accident by the defendants’ employee[ ], the defendants were on notice of possible litigation and thus under an obligation to preserve any evidence that might be needed for future litigation” … . * * *

Supreme Court improvidently exercised its discretion in precluding the defendants from presenting any evidence regarding Williams’s observations of the video surveillance footage, as this sanction disproportionately eliminated their defense to this action. Instead, under the circumstances, including the negligent, rather than intentional, destruction of the video surveillance footage and the degree of prejudice to the plaintiff, the court should have directed that an adverse inference charge be given against the defendants at trial with respect to the video surveillance footage of the incident … . Battle v Fulton Park Site 4 Houses, Inc., 2026 NY Slip Op 00114, Second Dept 1-14-26

Practice Point: Here preclusion of testimony about the contents of a negligently (not intentionally) erased video which depicted the incident was deemed too severe a spoliation sanction because preclusion eliminated the only defense to the action. An adverse inference charge was deemed the appropriate sanction.

 

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DEFENDANT DID NOT OPPOSE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION; THE JUDGE SHOULD NOT HAVE DENIED THE MOTION ON AN EVIDENTIARY GROUND NOT RAISED BY THE DEFENDANT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the judge in this foreclosure action should not have denied plaintiff’s motion for summary judgment on an evidentiary ground which was not raised by the defendant:

Plaintiff … moved for summary judgment, submitting an affirmation by counsel, to which the loan documents were annexed, and an affidavit from the same first vice president, which did not attach the subject loan documents. The affiant attested that defendant failed to make monthly payments and that defendant owed plaintiff $2,302,848.55 through June 15, 2024. He did not attest that he based his knowledge of the default and amount due on his review of any records. Defendant did not oppose plaintiff’s motion.

… Although it is the movant’s burden to establish its entitlement to summary judgment and the failure of the nonmovant to oppose summary judgment does not obviate the movant’s need to establish its prima facie case … , “a court should not examine the admissibility of evidence submitted in support of a motion for summary judgment unless the nonmoving party has specifically raised that issue in its opposition to the motion” … . This is because courts “are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made” … .

On its original motion, plaintiff established its prima facie entitlement to summary judgment by establishing, through the affidavit of a first vice president who was also the loan officer in charge of the loan’s collection and enforcement, the existence of the consolidated note, consolidated mortgage, and the existence and amount of defendant’s default … . Defendant did not oppose the motion and thus did not raise any objections as to the admissibility of plaintiff’s evidence, and the court should not have raised evidentiary objections sua sponte … . Valley Natl. Bank v Community Prot. Church of Co-op City, Inc., 2026 NY Slip Op 00036, First Dept 1-6-25

Practice Point: A judge should not, sua sponte, deny a motion for summary judgment on a ground not raised by the nonmoving party.

 

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THERE WAS NO EVIDENCE DEFENDANT USED DRUGS TO EXCESS AT THE TIME OF THE OFFENSE OR IN THE PAST; THE 15 POINT ASSESSMENT UNDER RISK FACTOR 11 WAS THEREFORE ELIMINATED, REDUCING THE RISK LEVEL FROM THREE TO TWO (SECOND DEPT). ​

The Second Department, reducing the SORA risk assessment from level three to level two, determined the evidence did not support assessing 15 points for using drugs to excess:

“In order to support the assessment of points under risk factor 11, . . . the People must show by clear and convincing evidence that the offender used drugs or alcohol in excess either at the time of the crime or repeatedly in the past” … . Here, the People failed to present clear and convincing evidence that the defendant’s marijuana use on the date of the offense was excessive or “causally linked to the sexual assault” … . The People’s evidence was also insufficient to establish that the defendant used marijuana or other substances in excess repeatedly in the past … . Without the assessment of points under risk factor 11, the defendant’s point total was 100, which is within the range for a presumptive level two designation. People v Gregory, 2025 NY Slip Op 07420, Second Dept 12-31-25

 

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THE PROSECUTOR’S FAILURE TO INSTRUCT THE GRAND JURY ON THE JUSTIFICATION DEFENSE REQUIRED REVERSAL AFTER TRIAL AND DISMISSAL OF THE INDICTMENT (WITHOUT PREJUDICE) (SECOND DEPT).

The Second Department, reversing defendant’s conviction and dismissing the indictment (without prejudice), determined the prosecutor erroneously failed to explain the justification defense to the grand jury. Although defendant had a knife, there was evidence the victim had a gun and was the initial aggressor:

If the District Attorney fails to instruct the grand jury on a defense that would eliminate a needless or unfounded prosecution, the proceeding is defective, mandating dismissal of the indictment (see id. § 210.35[5] …). “‘[A] prosecutor should instruct the [g]rand [j]ury on any complete defense supported by the evidence which has the potential for eliminating a needless or unfounded prosecution'” … . “Where the evidence before the grand jury supports it, the charge on justification must be given” … .

“In determining whether the evidence supports a justification defense, the record must be viewed in the light most favorable to the defendant” … . Here, a surveillance video shown to the grand jury indicated that the defendant approached Graves inside a store while holding a knife. Nevertheless, when viewing the evidence in the light most favorable to the defendant, there is a reasonable view of the evidence that the defendant was not the initial aggressor, Graves pointed a gun at the defendant, the defendant stabbed Graves to defend himself from the imminent use of deadly physical force against him, and the defendant could not safely retreat (see Penal Law § 35.15[2][a] …). People v Mead, 2025 NY Slip Op 07412, Second Dept 12-31-25

Practice Point: Where the evidence viewed in the light most favorable to the defendant satisfies the criteria for a defense to the offense, the prosecutor must so instruct the grand jury. Failure to do so renders the grand jury proceeding defective and the indictment must be dismissed, even after a conviction at trial.

 

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