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DEFENDANT EMPLOYER’S FAILURE TO ENGAGE IN COOPERATIVE DIALOGUE REGARDING ACCOMMODATION FOR THE DISABLED PLAINTIFF WARRANTED SUMMARY JUDGMENT ON PLAINTIFF’S NYC HUMAN RIGHTS LAW CLAIM (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the disabled plaintiff was intitled to summary judgment on his NYC Human Rights Law claim because defendant-employer failed to engage in a cooperative dialogue regarding accommodation for his disability:

… [P]laintiff is entitled to summary judgment on his City HRL claim based on defendant’s failure to engage, within a reasonable time, in a cooperative dialogue regarding his accommodation, as the record presents no issues of fact as to defendant’s failure to engage plaintiff in a cooperative dialogue once defendant became aware of his condition (see Administrative Code of City of NY §§ 8-102; 8-107[28][a] …). Contrary to defendant’s contention, an employer’s failure “to engage in a good faith interactive process is . . . independently actionable under the [City] HRL” … . Kocher v Mount Sinai Hosp., 2026 NY Slip Op 06007, First Dept 10-15-26

Practice Point: An employer’s failure to engage in cooperative dialogue with a disabled worker about accommodation for the disability violates the NYC Human Rights Law.

 

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CAUSES OF ACTION AGAINST “BIG OIL” ALLEGING “GREENWASHING” IN VIOLATION OF NYC’S CONSUMER PROTECTION LAW PROPERLY DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Friedman, affirmed the dismissal of the “product greenwashing” and “corporate greenwashing” causes of action in a suit by the City of New York against Exxon Mobil, Royal Dutch Shell, Shell and BP. The opinion is a comprehensive discussion of the application of the City’s Consumer Protection Law (CPL) to the defendants’ claims re: the environmental benefits of fossil fuel products and the role of renewable energy in defendants’ businesses:

In this action, plaintiff City of New York alleges that defendant energy companies … have engaged in “deceptive . . . trade practice[s]” proscribed by the City’s Consumer Protection Law (CPL) (Administrative Code of the City of NY § 20-700 et seq.). The City’s first cause of action alleges that defendants violated the CPL “by misrepresenting the purported environmental benefits of using their fossil fuel products” — a practice referred to as “product greenwashing.” The City’s second cause of action alleges that defendants also violated the CPL “by creating a misleading impression of the role of renewables [i.e., renewable energy] in their businesses” — a practice referred to as “corporate greenwashing.”

The City now appeals to this Court from Supreme Court’s order granting defendants’ motion to dismiss both causes of action. The court dismissed the first cause of action, for product greenwashing, as against all defendants, pursuant to CPLR 3211(a)(7), on the ground that the alleged “product greenwashing” statements did not, as a matter of law, have “the capacity, tendency or effect of . . . deceiving or misleading consumers” (Administrative Code § 20-701), as required to constitute a deceptive trade practice within the meaning of the CPL. … The court also dismissed the second cause of action, for corporate greenwashing, as against all defendants, pursuant to CPLR 3211(a)(7), on the ground that the alleged “corporate greenwashing” statements were not “made in connection with the sale . . . or in connection with the offering for sale of consumer goods or services,” as also required to constitute a deceptive trade practice within the meaning of the CPL. … [W]e affirm. City of New York v Exxon Mobil Corp., 2026 NY Slip Op 05851, First Dept 10-8-26

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A PRECLUSION ORDER DOES NOT HAVE THE SAME EFFECT AS STRIKING THE ANSWER; THE DEFENDANT CAN STILL PRESENT LEGAL ARGUMENTS SUPPORTING A MOTION TO DISMISS; HERE THE DEFENDANT CITY AMBULANCE SERVICE WAS PERFORMING A GOVERNMENTAL FUNCTION WHEN DECEDENT WAS INJURED AND WAS ENTITLED TO IMMUNITY IN THE NEGLIGENCE ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the city was entitled to dismissal of the negligence action because the ambulance service was performing a governmental function and no special duty was owed by the city to the decedent. Here the city had failed to meet its discovery obligations and Supreme Court precluded the city from offering evidence. However the city was entitled to make legal arguments in an attorney affirmation to support its motion to dismiss the complaint:

… [A]n order precluding the submission of evidence, unlike the striking of an answer, does not relieve the plaintiff of his or her obligation to establish a prima facie case in the first instance … . The purpose of a preclusion order is to make the demanding party whole … . To further preclude the defendants from asserting defenses which require only general denials, despite the existence of a genuine factual dispute, deprives the defendants of their day in court and gives the plaintiff more relief than is warranted by the defendants’ failure to comply with their disclosure obligations … . Thus, contrary to the plaintiff’s contention, the order … precluding the defendants “from offering any evidence . . . and/or affidavits in support of or in opposition to any dispositive motion,” did not preclude the defendants from submitting legal arguments in an attorney affirmation or from referring to the parties’ pleadings.

When a municipality provides ambulance service by emergency medical technicians in response to a 911 call for assistance, it performs a governmental function and cannot be held liable unless it owed a special duty to the injured party … . As relevant here, a municipality will be held to have voluntarily assumed a duty or special relationship with the plaintiff where there is (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking … . It is the plaintiff’s obligation to prove that the government defendant owed a special duty of care to the injured party because the duty is an essential element of the negligence claim itself … . Davis v City of New York, 2026 NY Slip Op 05766, Second Dept 10-7-26

Practice Point: Here the city defendant failed to meet its discovery obligations and the court issued an order precluding the city from presenting evidence. However the city was not precluded from making legal arguments in support of its successful motion to dismiss.

Practice Point: The city was entitled to immunity because the city ambulance service was performing a governmental function and there was no special relationship between the city and the decedent.

 

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PETITIONER’S “PREOCCUPATION WITH HIS INJURIES, TREATMENT AND RECOVERY” WAS DEEMED A REASONABLE EXCUSE FOR FAILURE TO TIMELY FILE A NOTICE OF CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s request for leave to file a late notice of claim should have been granted. Petitioner fell onto the tracks at a subway station and was struck by a train. Evidence petitioner was “preoccupied with his injuries, treatment and recovery” constituted a reasonable excuse for the delay in filing the notice:

… [P]etitioner demonstrated that the respondents acquired actual knowledge of the essential facts constituting the claim within 90 days of the accident based on the respondents’ prompt and thorough investigation of the accident, which included interviews of the train operator and analysis regarding the speed of the train and when the train’s emergency brake was engaged … . Moreover, since the respondents acquired timely knowledge of the essential facts constituting the claim, the petitioner met his initial burden of showing that the respondents would not be prejudiced by the late notice of claim … . In response to the petitioner’s initial showing, the respondents failed to come forward with particularized evidence showing that the late notice substantially prejudiced their ability to defend the claim on the merits … .

Further, contrary to the respondents’ contention, the petitioner demonstrated a reasonable excuse for his delay in serving the notice of claim. “A petitioner may be able to establish a reasonable excuse for not timely serving a notice of claim based on an injury or medical condition, but only ‘through admissible medical evidence that he [or she] was incapacitated to such an extent that he [or she] could not have complied with the statutory requirement'” … . However, “even absent incapacitation, a reasonable excuse may be established by an allegation that a petitioner was more concerned and preoccupied with his or her alleged injuries . . . than with retaining counsel to pursue a legal claim, but only when such an allegation is supported by medical evidence” … . Here, the petitioner sufficiently established a reasonable excuse for his delay in serving a notice of claim based on his preoccupation with his injuries, treatment, and recovery, including the required amputation of his lower right leg, and his extended stay at a rehabilitation center as he relearned how to walk … . Matter of Nash v New York City Tr. Auth., 2026 NY Slip Op 05399, Second Dept 9-23-26

Practice Point: Here petitioner was struck by a subway train and his treatment included amputation of his lower right leg. Petitioner’s “preoccupation with his injuries, treatment and recovery” was deemed a reasonable excuse for failing to timely file a notice of claim.​

 

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PURSUANT TO GENERAL MUNICIPAL LAW 50-H, IT WAS THE MUNICIPALITY’S, NOT THE CLAIMANT’S, OBLIGATION TO RESCHEDULE THE 50-H EXAMINATION AFTER CLAIMANT’S COUNSEL WITHDREW; THEREFORE THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED BASED ON CLAIMANT’S FAILURE TO APPEAR AT THE EXAMINATION (SECOND DEPT). ​

The Second Department, reversing Supreme Court on an issue first raised on appeal, determined claimant’s failure to appear at an oral examination pursuant to General Municipal Law section 50-h did not warrant dismissal of the complaint. The scheduled examination did not take place because claimant’s counsel withdrew. Pursuant to the statute, it was the municipality’s, not the claimant’s, obligation to reschedule the examination:

Although [plaintiff’s] contention is raised for the first time on appeal, we reach the contention because it presents a pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture … .

“‘The purpose of General Municipal Law § 50-h is to enable a municipality to make a prompt investigation of the circumstances of a claim by examining the claimant about the facts of the claim'” … . “The oral examination of a claimant pursuant to General Municipal Law § 50-h serves to supplement the notice of claim and provides an investigatory tool to the municipality, with a view toward settlement” … . Generally, such examination must be conducted within 90 days of the service of the demand (see General Municipal Law § 50-h[5]). “‘Compliance with a demand for an oral examination pursuant to General Municipal Law § 50-h and Public Housing Law § 157(2) is a condition precedent to the commencement of an action against the defendant New York City Housing Authority'” … , and a plaintiff’s failure to so comply warrants dismissal of the action … .

However, pursuant to General Municipal Law § 50-h(5), “[i]f the claimant requests an adjournment or postponement beyond the ninety day period, the [municipality] shall reschedule the [examination] for the earliest possible date available.” Thus, “[w]hen . . . the [examination] has been postponed indefinitely beyond 90 days after service of the demand and the municipality does not reschedule the [examination], a plaintiff’s failure to appear for a[n examination] will not warrant dismissal of the complaint” … . Jones v New York City Hous. Auth., 2026 NY Slip Op 05293, Second Dept 9-16-26

Practice Point: Pursuant to General Municipal Law 50-h, if a claimant requests an adjournment or a postponement of a 50-h examination, it is the municipality’s, not the claimant’s, obligation to reschedule.

 

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THE SUFFOLK COUNTY CODE PROVISIONS WHICH ALLOW THE SEIZURE AND FORFEITURE OF VEHICLES USED BY DRUNK DRIVERS IS CONSTITUTIONAL (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice McCormack, determined the provisions of the Suffolk County Code which provide for the seizure and forfeiture of vehicles used by drunk drivers is constitutional:

On this appeal, we are called upon to consider the validity of Suffolk County’s civil forfeiture statute, codified in chapter 420, article II (hereinafter chapter 420) of the Code of Suffolk County (hereinafter the Code), pursuant to which a vehicle being operated by the defendant Hassan Qamar (hereinafter the defendant) was seized at the time of his arrest for driving while intoxicated. The defendant challenges the validity of chapter 420 of the Code on three bases: (1) that the procedures relating to the post-seizure hearings conducted pursuant thereto violate article VI of the New York State Constitution, and deprived him of due process of law, (2) that the provisions of chapter 420 of the Code are preempted by State law, and (3) that the forfeiture of his vehicle constitutes an excessive fine prohibited by the State and Federal Constitutions. For the reasons that follow, we hold that the defendant’s challenges to the procedures involving the post-seizure hearing have been rendered academic, and that there is no merit to his remaining challenges. Accordingly, we affirm the judgment. * * *

… [A] Suffolk County Police Department (hereinafter the SCPD) police officer observed the defendant operating a Nissan Altima (hereinafter the vehicle) on Pulaski Road in Huntington at a speed of 100 miles per hour in a 35-mile-per-hour zone and passing a steady red traffic control light. According to the felony complaint, the defendant, inter alia, had a strong odor of alcohol on his breath and admitted having “a few beers and a few shots of J[a]m[e]son[ ] W[h]iskey.” The defendant purportedly displayed “clues indicative of intoxication upon submitting to standardized field sobriety test” and submitted to a chemical breath test that resulted in a .20% blood alcohol content. The defendant was arrested and charged with aggravated driving while intoxicated per se pursuant to VTL § 1192(2-a)(a) and driving while intoxicated pursuant to VTL § 1192(3). The defendant had previously been convicted of driving while intoxicated pursuant to VTL § 1192(3) on April 1, 2015. The vehicle was seized and impounded by the SCPD pursuant to chapter 420 of the Code. * * *

… [T]he defendant pleaded guilty to aggravated driving while intoxicated per se pursuant to VTL § 1192(2-a)(a), with one prior conviction. …

 … [T]he plaintiff commenced this civil forfeiture action pursuant to chapter 420 of the Code, seeking forfeiture of the defendant’s vehicle.   Cohen v A 2019 Nissan, 2026 NY Slip Op 05158, Second Dept 9-2-26

 

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HERE THE MEDICAL RECORDS SUGGESTED INJURY ATTRIBUTABLE TO MEDICAL MALPRACTICE SO THE HOSPITAL WAS DEEMED TO HAVE HAD TIMELY NOTICE OF THE NATURE OF THE MALPRACTICE CLAIM; PLAINTIFF’S MOTION TO DEEM THE LATE NOTICE OF CLAIM TIMELY SERVED NUNC PRO TUNC SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to deem the late notice of claim timely served nunc pro tunc should have been granted in this medical malpractice action:

On August 31, 2015, the plaintiff, Estefani Tenezaca, gave birth to the infant A.J.L. (hereinafter the infant) at Elmhurst Hospital Center (hereinafter Elmhurst), a facility controlled by the defendant. The infant was born prematurely at 30 weeks gestation and was treated at Elmhurst until September 16, 2015, when she was transferred to another hospital.

In July 2016, the plaintiff, as parent and natural guardian of the infant, served a notice of claim on the defendant, alleging, among other things, medical malpractice in the defendant’s treatment of the infant. * * *

The plaintiff’s experts opined that the infant suffered a massive bilateral parenchymal hemorrhage as a result of the treatment documented in Elmhurst’s records. * * *

Inasmuch as the Elmhurst records, upon independent review, suggested injury attributable to medical malpractice, those records provided the defendant with actual knowledge of the essential facts constituting the claim … .  Additionally, the plaintiff made an initial showing that the defendant would not suffer any prejudice by the delay in serving a notice of claim, and the defendant failed to rebut that showing with particularized indicia of prejudice … . The plaintiff also established a reasonable excuse for her failure to timely serve a notice of claim … . Tenezaca v New York City Health & Hosps. Corp., 2026 NY Slip Op 05208, Second Dept 9-2-25

Practice Point: In this medical malpractice action plaintiff moved to deem the late notice of claim timely served. The medical records suggested injury attributable to malpractice. Therefore the hospital was deemed to have had timely notice of the nature of the claim.

 

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THE PETITIONERS DID NOT HAVE STANDING TO CHALLENGE THE VILLAGE’S SEQRA NEGATIVE DECLARATION WHICH ALLOWED THE CONSTRUCTION OF 98 APARTMENTS, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the petitioners did not have standing to challenge the negative declaration issued by the village respondents pursuant to the State Environmental Quality Review Act (SEQRA). The village thereby approved the construction 98 apartment units. The Second Department explained the criteria for standing in this context:

“Standing to bring a SEQRA challenge is a threshold issue, and the burden of establishing standing is on the party seeking review of governmental action on the basis of alleged procedural and substantive SEQRA violations” … . “To establish standing under SEQRA, a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA” … . “Economic injury is not by itself within the zone of interests which SEQRA seeks to protect” … .

Here, the petitioners alleged environmental injuries that either were economic in nature … , were not different from those that would be suffered by the public at large … , or were too speculative and conjectural to demonstrate an actual injury-in-fact … . Such allegations are insufficient to confer standing to challenge the adequacy of the Cedarhurst respondents’ environmental review of the overlay district under SEQRA. Contrary to the petitioners’ contention, their property was not sufficiently close in proximity to the proposed development so as to confer a presumption of an injury-in-fact as an adjacent property owner … . Board of Educ. of the Lawrence Union Free Sch. Dist. v Incorporated Vil. of Cedarhurst, 2026 NY Slip Op 05154, Second Dept 9-2-26

Practice Point: Consult this decision for insight into the criteria for standing to challenge a municipality’s SEQRA negative declaration. Here the village approved the construction of 98 apartments and the petitioners did not have standing to challenge the approval.

 

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PETITIONERS DID NOT LEARN OF THE BABY’S MEDICAL CONDITION UNTIL SIX MONTHS AFTER THE INDUCED LABOR; PETITIONERS REQUESTED LEAVE TO FILE A LATE NOTICE OF CLAIM FOR MEDICAL MALPRACTICE; ALTHOUGH THE HOSPITAL DID NOT HAVE TIMELY KNOWLEDGE OF THE ESSENCE OF THE CLAIM, THE HOSPITAL DID NOT DEMONSTRATE ANY PREJUDICE FROM THE DELAY BECAUSE THE MEDICAL ISSUES WERE FULLY DOCUMENTED; THE REQUEST TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioners’ request for leave to file a late notice of claim in this medical malpractice action should have been granted. Petitioner mother did not learn of her child’s medical condition until six months after her discharge from the hospital after labor was induced. Mother therefore had a reasonable excuse for failure to timely file a notice of claim. Although the hospital did not have timely knowledge of the nature of the claim, the hospital did not demonstrate any prejudice from the delay because the relevant issues were fully documented:

… [T]he court, in its discretion, must consider all relevant facts and circumstances, including, but not limited to, whether (1) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (2) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay would substantially prejudice the public corporation in its defense” … . Another factor to consider is whether the claimant was an infant at the time the claim arose and whether there is a nexus between infancy and delay in service … , which was the case here. “‘[T]he presence or absence of any one factor is not determinative'” … .

Here, the petitioners established a reasonable excuse for the delay, to wit, the serious medical condition of the infant petitioner, which required numerous medical appointments while the condition of the infant petitioner was being assessed … . The petitioners failed to demonstrate that NYCHHC had actual knowledge of the facts underlying the claim within 90 days after the claim arose or a reasonable time thereafter, since the hospital’s records did not evidence that the medical staff, by its acts or omissions, inflicted an injury attributable to malpractice … . However, “[s]ince the conduct at issue was fully documented in the medical records, the petitioner[s] made an initial showing that NYCHHC was not prejudiced by the delay in serving the notice of claim … , and, in response, the NYCHHC made no showing of prejudice” … . Matter of Caceres v NYC Health & Hosps., 2026 NY Slip Op 05182, Second Dept 9-2-26

Practice Point: Here the request to file a late notice of claim was granted despite the fact that the hospital did not have timely notice of the essence of the medical malpractice claim. Petitioners had a reasonable excuse for the delay and the hospital did not demonstrate any prejudice caused by the delay.

 

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IN AN ACTION ALLEGING A FRAUDULENT SCHEME TO DEREGULATE APARTMENTS, TO MAKE OUT A PRIMA FACIE CASE SUCH THAT THE FOUR-YEAR LOOK-BACK DOES NOT APPLY, PLAINTIFF NEED NOT DEMONSTRATE EACH ELEMENT OF COMMON-LAW FRAUD; SUFFICIENT INDICIA OF FRAUD OR A COLORABLE CLAIM OF A FRAUDULENT SCHEME ARE WHAT MUST BE DEMONSTRATED (FIRST DEPT).

The First Department, reversing Supreme Court upon remittitur from the Court of Appeals, over a two-justice dissent, remitted the matter to Supreme Court for application of the recently clarified standard for the prima facie demonstration of fraud in an action alleging a fraudulent scheme to deregulate apartments. The issue is whether plaintiffs presented sufficient evidence of fraud to overcome the four-year look-back provision in the former Rent Stabilization Law:

… [T]he Court [of Appeals] refined the common-law standard applied to allegations of a fraudulent scheme to deregulate apartments subject to rent stabilization on a motion to dismiss under CPLR 3211 … . More specifically, [the Court of Appeals] “made clear that, for the fraud exception [to the four-year lookback period in the former Rent Stabilization Law § 26-516 (a)] to apply, a plaintiff need not demonstrate each element of common-law fraud and instead must put forth sufficient indicia of fraud or a colorable claim of a fraudulent scheme” … .

Parallel to the Court of Appeals’ development of the common law applicable to fraudulent deregulation claims, the legislature addressed the fraudulent deregulation standard by statute … . Under the legislature’s statutory amendments, the relevant inquiry is whether the landlord ” ‘knowingly engaged in [a] fraudulent scheme [to deregulate] after a consideration of the totality of the circumstances’ ” … To date, the Court of Appeals has not had occasion to “address to what extent this legislation differs from [the] common-law rule, and, if there is any difference, the impact or applicability of that legislation” … . Aras v B-U Realty Corp., 2026 NY Slip Op 04983, First Dept 8-13-26

​Practice Point; Consult this decision for insight into what a plaintiff must allege or demonstrate to survive a motion to dismiss or to warrant summary judgment in an action alleging a fraudulent scheme to deregulate apartments and seeking the “fraud exception” to the statutory four-year look-back for damages.

 

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