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THE INSTRUCTIONS CONCERNING THE USE OF CELL PHONES DURING A POLICE-DEPARTMENT PROMOTIONAL EXAM WERE AMBIGUOUS; THEREFORE THE DETERMINATION PETITIONERS VIOLATED THE INSTRUCTIONS WAS IRRATIONAL (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Higgitt, determined the New York City Department of Citywide Administrative Services (DCAS), acted irrationally when it found that petitioners-police-officers had violated the prohibition of the use of cell phones before dismissal from a promotional examination. The petitioners did not use their cell phones during the exam. Rather the cell phones were used after completion of the exam but before dismissal from the exam room. The First Department held that the instructions concerning the use of cell phones were ambiguous:

Here, rationality is lacking, not for a want of evidence, but because the standard to which DCAS held petitioners was ambiguous. The notices of violations issued by DCAS specified, among other things, that petitioners breached a test-taking rule providing that, “[b]efore, during and after your test, you are not permitted to use, have turned on or have out in the open: cellular phones.” The rule does not indicate when the cell-phone prohibition begins or when it ends….  Nothing in the rule, which DCAS quoted from the instruction sheet provided to the candidates, suggests the location or locations to which the cell phone prohibition applied. The ambiguity of the rule, coupled with the ambiguity as to when the test concluded (which the executive deputy commissioner acknowledged) and the prevalence of cell phones in the exam room, make the determinations irrational. Matter of Bifulco v City of New York, 2026 NY Slip Op 02772, First Dept 5-5-26

Practice Point: An administrative punishment for a purported rule violation will be deemed irrational if the rule is ambiguous.

 

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PLAINTIFF’S MOTION TO DEEM A NOTICE OF CLAIM TIMELY SERVED IN THIS FALSE ARREST AND BATTERY ACTION AGAINST THE CITY DEFENDANTS SHOULD NOT HAVE BEEN GRANTED; PLAINTIFF’S EXCUSE FOR LATE FILING WAS INADEQUATE; PLAINTIFF DID NOT SHOW THE CITY DEFENDANTS HAD TIMELY KNOWLEDGE OF THE NATURE OF THE CLAIM; AND PLAINTIFF DID NOT SHOW THE CITY WAS NOT PREJUDICED BY THE 11-MONTH DELAY IN FILING (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to deem a notice of claim timely served should not have been granted. The excuse for failing to timely file was not sufficient, plaintiff failed show the city defendants had timely knowledge of the claim, and plaintiff did not demonstrate the city defendants were not prejudiced the the 11-month delay in filing the notice:

Plaintiff’s averment that he was unaware of the time limits necessary to file a notice of claim and initially did not retain counsel after being released from custody because he was focusing on the criminal charges against him are not acceptable excuses for failing to file a timely notice of claim … .

Furthermore, plaintiff failed to submit any evidence establishing that defendants acquired actual knowledge of the essential facts constituting the claims within 90 days of the accrual of the claims or within a reasonable time thereafter … . Plaintiff’s allegations that NYPD officers participated in his false arrest and detention and that they assaulted and battered him do not satisfy plaintiff’s burden of establishing that defendants acquired actual knowledge of the essential facts because his allegations do not constitute facts or evidence … . Plaintiff’s allegation that defendants must have records regarding his arrest, detention, and prosecution is also unavailing, as “the alleged existence of records does not suffice to establish actual knowledge” … .

Since plaintiff failed to make an initial showing that defendants were not prejudiced by the delay of about 11 months in filing the notice of claim, the burden never shifted to defendants to make a particularized showing of prejudice to their ability to defend on the merits … . Waddell v City of New York, 2026 NY Slip Op 02357, First Dept 4-16-26

Practice Point: Consult this decision for insight into the factors a court will consider when determining whether a late notice of claim should be allowed.

 

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PLAINTIFF FATHER WAS AWARDED SOLE CUSTODY OF THE CHILD IN AN ORDER THAT DIRECTED MOTHER TO “STAY AWAY” FROM FATHER AND CHILD; FATHER ASKED THE POLICE FOR HELP IN SERVING THE ORDER AND PICKING UP THE CHLID; MOTHER WOULD NOT LET THE POLICE INTO HER HOME; DISTRICT ATTORNEYS ADVISED THAT THE POLICE COULD NOT ENTER MOTHER’S HOME; THE NEXT DAY MOTHER MURDERED THE CHILD; THE COMPLAINT AGAINST THE MUNICIPAL DEFENDANTS SHOULD NOT HAVE BEEN DIISMISSED; PLAINTIFF DEMONSTRATED A SPECIAL RELATIONSHIP WITH THE MUNICIPALITY AND THE MUNICIPALITY DID NOT DEMONSTRATE IT WAS ENTITLED TO GOVERNMENTAL FUNCTION IMMUNITY (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Taylor, determined the negligence and wrongful death action against the municipal defendants should not have been dismissed, and plaintiff’s motion for leave to amend the notice of claim or leave to file a late notice of claim should have been granted. Plaintiff father was granted sole custody of his child in an order which required mother to “stay away” from father and the child. Plaintiff asked the police for help in serving the order on mother and picking up the child. The police attempted to serve the order, but mother slammed the door and would not let them in. District attorneys were then contacted for advice but determined the police could not enter mother’s home. The next day the police were called to mother’s home where the child was found deceased. Mother was convicted of murdering the child. The Second Department held that there was a special relationship between plaintiff and the municipality and the municipality was not entitled to governmental function immunity: The opinion is too complex to fairly summarize here:

To establish the existence of a special relationship, a plaintiff is required to prove four elements, also referred to as “the Cuffy factors” or “the Cuffy test,” namely:

“(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” (Cuffy v City of New York, 69 NY2d 255, 260 …). * * *

Generally, the “decision to arrest an individual involves the exercise of discretion . . . and thus is cloaked with governmental immunity” … . However, here, in the face of what was, in effect, a temporary order of protection, the defendant police officers became, at a minimum, “obligated to respond and investigate” … . Therefore, the Village defendants have not conclusively established that their actions were purely discretionary … . Boyd v Village of Mamaroneck, 2026 NY Slip Op 02239, Second Dept 4-15-26

Practice Point: Consult this opinion for insight into what constitutes a “special relationship” between a plaintiff and a municipality and when a municipality is protected from liability in negligence by governmental function immunity.

 

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DEFENDANT’S CONTRACT WITH THE TOWN TO MAINTAIN STREET LIGHTS DID NOT CREATE A DUTY OWED BY THE CONTRACTOR TO THE PLAINTIFF, A PEDESTRIAN STRUCK BY A CAR WHO ALLEGED A STREET LIGHT WAS NOT WORKING; THE CONTRACTOR DID NOT “LAUNCH AN INSTRUMENT OF HARM;” IT MERELY FAILED “TO ACT AS AN INSTRUMENT OF GOOD” WHICH DOES NOT CREATE A DUTY TO A NONPARTY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate the breach of a duty owed to him by defendant contractor. Defendant had entered a contract with defendant municipality to maintain street lights. Plaintiff, a pedestrian struck by a car, alleged the accident was in part caused by a street light which was not working. The complaint, however, did not allege defendant contractor had “launched an instrument of harm,” as opposed to merely a failure to act as an instrument of good:

… [T]he facts alleged do not establish that the defendant launched an instrument of harm, as the defendant is not alleged to have “created or increased the risk [to the plaintiff] beyond the risk which existed even before [the defendant] entered into [its] contractual undertaking” … . The defendant’s purported negligence in failing to restore illumination to a darkened intersection amounts to, at most, a failure to act as an “instrument for good, which is insufficient to impose a duty of care” upon the defendant in the absence of contractual privity with the plaintiff … . Moreover, the contract submitted by the defendant in support of its motion conclusively demonstrated that the defendant’s contractual undertaking was “not the type of ‘comprehensive and exclusive’ property maintenance obligation” that would “entirely absorb” the Town’s duty “to maintain the premises safely” … . Weiss v Fran Corp., 2026 NY Slip Op 02147, Second Dept 4-8-26

Practice Point: Consult this decision for insight into what “launching an instrument of harm,” as opposed to “failing to act as an instrument of good,” means in the context of a duty owed by a party to a contract to an injured nonparty.

 

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THE COUNTY CHARTER, WHICH PURPORTED TO ELIMINATE THE CONSTRUCTIVE-NOTICE THEORY OF LIABILITY FOR INJURY TO A BICYCLIST BY A DANGEROUS CONDITION IN A COUNTY ROAD, DID NOT SUPERSEDE THE HIGHWAY LAW; TO STATE A PRIMA FACIE CASE IN SUPPORT OF SUMMARY JUDGMENT, THE COUNTY MUST DEMONSTRATE BOTH A LACK OF WRITTEN NOTICE AND A LACK OF CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Golia, determined the county charter, which allowed the county to “opt out” of the constructive-notice provisions in the Highway Law, did not supersede the Highway Law. Plaintiff, a bicyclist, was injured when his bicycle struck a pothole on a county road. Supreme Court denied the county’s summary judgment motion which argued the county charter eliminated the constructive-notice theory of liability. The Second Department affirmed the denial and further held that the county was required to show both a lack of written notice and a lack of constructive notice of the dangerous condition to warrant summary judgment:

In an action to recover damages for personal injuries sustained in a bicycle accident, we are asked to determine whether the defendant, County of Suffolk, may enact legislation pursuant to the Municipal Home Rule Law that supersedes a New York State law. Specifically, the County contends that, through the enactment of Suffolk County Charter § C8-2(A)(2), it may supersede the provision of Highway Law § 139(2) that allows for an action to be maintained against a county, regardless of prior written notice, where the county had constructive notice of the alleged defective condition, pursuant to Municipal Home Rule Law § 10(1)(ii)(a)(5). We hold that Suffolk County Charter § C8-2(A)(2)(iii) contradicts Highway Law § 139(2) and, thus, the County may not, as it contends, “exercise [its] right to opt out” of the requirements of said statute. The County also contends that, in effect, even if constructive notice could be a theory of recovery in the instant action, the plaintiff bears the burden of establishing in the first instance that the County had constructive notice of the alleged defective condition. In other words, the County contends that its burden on this motion for summary judgment was only to show that it lacked prior written notice of the allegedly defective condition before the burden shifted to the plaintiff to demonstrate that the County had constructive notice of the condition. We hold, consistent with our precedent, that, when moving for summary judgment dismissing the complaint in cases invoking Highway Law § 139(2), the County must establish, prima facie, that it lacked both prior written notice and constructive notice of the alleged defective condition before the burden shifts to the plaintiff to raise a triable issue of fact in that regard or with regard to whether another exception applies. Romas v County of Suffolk, 2026 NY Slip Op 02142, Second Dept 4-8-26

Practice Point: A county charter provision which contradicts the New York State Highway Law does not supersede the provisions of the Highway Law.

 

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IN A MATTER OF FIRST IMPRESSION, THE SECOND DEPARTMENT HELD THAT THE 90-DAY TIME-LIMIT FOR FILING A NOTICE OF CLAIM AGAINST A SCHOOL DISTRICT ALLEGING NEGLIGENT SUPERVISION CAN BE TOLLED UNDER THE “CONTINUING WRONG” DOCTRINE; HERE IT WAS ALLEGED PLAINTIFF-STUDENT WAS ABUSED BY OTHER STUDENTS BEGINNING IN OCTOBER 2017; THE NOTICE OF CLAIM WAS FILED IN FEBRUARY 2018 (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Voutsinas, reversing Supreme Court, determined the defendant NYC Department of Education (DOE) was not entitled to summary judgment in this negligent supervision action alleging a long pattern of abuse of plaintiff-student, J.A., by other students. Notably, the Second Department, as a matter of first impression, held that the 90-day time-limit for filing a Notice of Claim was tolled by the “continuing wrong” doctrine:

This Court holds that the notice of claim was timely because the continuing wrong doctrine applies … . As a general rule, the continuing wrong doctrine may be “employed where there is a series of continuing wrongs and serves to toll the running of the limitations period to the date of the commission of the last wrongful act” … . The continuing wrong doctrine allows a later accrual date of a cause of action “where the harm sustained by the complaining party is not exclusively traced to the day when the original wrong was committed” … . “The distinction is between a single wrong that has continuous effects and a series of independent wrongs” … .

This Court has not previously addressed the question of whether the period within which a notice of claim may be filed is tolled where there is a continuous pattern of harassment and/or unlawful conduct in a school setting and allegedly negligent supervision of a student by school administrators charged with a duty to properly supervise their students. J.A. v City of New York, 2026 NY Slip Op 02084, Second Dept 4-8-26

Practice Point: Here in this negligent-supervision action it was alleged plaintiff-student was subjected to a pattern of abuse by other students for a period of months. In a matter of first impression, the Second Department held that incidents which occurred more than 90-days before the Notice of Claim was filed were not time-barred pursuant to the “continuing wrong” doctrine.

 

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ALTHOUGH THE COURT FOUND THAT THE DEPUTY DID NOT SOUND HER AIR HORN BEFORE THE INTERSECTION COLLISION WITH PLAINTIFFS’ VEHICLE, THERE WAS SUFFICIENT EVIDENCE THAT THE DEPUTY TOOK PRECAUTIONS BEFORE ENTERING THE INTERSECTION; THEREFORE THE COUNTY DEMONSTRATED THE DEPUTY DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS IN VIOLATION OF VEHICLE AND TRAFFIC LAW 1104 (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Wilson, over an extensive dissent, determined the county was entitled to summary judgment in this negligence suit stemming from an intersection accident involving a sheriff’s deputy (Wong) who was responding to an emergency call. Although the court found that Wong did not sound her air horn prior to the collision with plaintiffs’ (Granaths’) car, the evidence demonstrated Wong did not act with reckless disregard for the safety of others:

It is undisputed that, before proceeding through the intersection, Deputy Fong slowed down, came to a complete stop at least once, observed northbound traffic, waited for that traffic to yield to her, and turned on her overheard lights. The Granaths contend that a jury could nonetheless find that Deputy Fong exhibited reckless disregard for the safety of others by failing to activate her air horn or siren; declining to call in a “Code 77” as required by MCSD [sheriff’s department] policy; and proceeding into the intersection despite having an obstructed view of southbound traffic.

We agree with the Appellate Division that defendants met their initial burden on their summary judgment motion and that, in opposition, the Granaths failed to raise a material triable issue of fact. Even assuming Deputy Fong failed to activate her air horn or siren, call in a “Code 77,” or observe southbound traffic—either because her view was obstructed or she neglected to look to her right—taken together with the actions she undisputably did take—slowing down, stopping, activating her emergency lights and proceeding only once she observed northbound traffic yield to her—we cannot conclude that Deputy Fong, with “conscious indifference to the outcome,” “reckless[ly] disregard[ed] . . . a highly probable risk of harm” … . Granath v Monroe County, 2026 NY Slip Op 01586, CtApp 3-19-26

Practice Point: Consult this opinion for insight into the meaning of “reckless disregard for the safety of others” in the context of an intersection traffic accident involving a sheriff’s deputy responding to an emergency call.

 

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THE MEDICAL RECORDS PROVIDED DEFENDANT HOSPITAL WITH TIMELY NOTICE OF THE FACTS UNDERLYING THE MEDICAL MALPRACTICE CAUSE OF ACTION; THEREFORE PLAINTIFF’S APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s application for leave to file a late notice of claim in this medical malpractice action should have been granted. The medical records provided the defendant hospital with sufficient timely notice of the cause of action:

“Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury” … . “Where the alleged malpractice is apparent from an independent review of the medical records, those records constitute ‘actual knowledge of the facts constituting the claim'” … .

Here, in support of his motion, the plaintiff submitted, inter alia, medical records and an affidavit of a physician who reviewed the records and concluded that there had been a departure from accepted medical practice … . Inasmuch as the medical records, upon independent review, suggested injury attributable to medical malpractice, the medical records provided the defendant with actual knowledge of the essential facts constituting the claim … . Kazeem v New York City Health & Hosps. Corp. (Queens Hosp. Center), 2026 NY Slip Op 01497, Second Dept 3-18-26

Practice Point: The medical records themselves can be deemed to have provided a defendant hospital with timely notice of the facts underlying a medical malpractice action such that an application for leave to file a late notice of claim should be granted.

 

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A NEW YORK CITY LOCAL LAW WHICH PROHIBITS THE SALE OF FOIE GRAS, A “FATTY LIVER” CREATED BY FORCE FEEDING GEESE AND DUCKS, IS NOT PRE-EMPTED BY THE AGRICULTURE AND MARKETS LAW (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Mackey, determined the NYC Local Law which prohibited the sale of foe gras was not pre-empted by the Agriculture and Markets Law. Foie gras (fatty liver) is produced by force feeding geese or ducks several times a day:

Foie gras, which translates to English as “fatty liver,” is a food product obtained through such forced feeding of a goose or duck, by which the animal is made to consume large quantities of grain and fat using a pipe that is inserted down the esophagus. This process, which is repeated several times per day, seeks to produce a significantly enlarged liver when compared to that of a non-force-fed bird. * * *

… Agriculture and Markets Law § 305-a provides that “[l]ocal governments, when exercising]their powers to enact and administer comprehensive plans and local laws, ordinances, rules or regulations, shall exercise these powers in such manner as may realize the policy and goals set forth in this article, and shall not unreasonably restrict or regulate farm operations within agricultural districts in contravention of the purposes of this article unless it can be shown that the public health or safety is threatened” … . * * *

… Agriculture and Markets Law article 25-AA was expressly enacted to protect agricultural lands from “nonagricultural development extend[ing] into farm areas,” as well as “[o]rdinances inhibiting farming,” which “often lead[ ] to the idling or conversion of potentially productive agricultural land” … . The Legislature thus clearly expressed its intent that Agriculture and Markets Law § 305-a preempt those local laws that result in direct and unreasonable restrictions or regulations upon farming operations and the associated use of land — not the sale of products produced as a result of those operations in retail food and food service establishments, which may be subject to other statutory and regulatory limitations. Matter of City of New York v Ball, 2026 NY Slip Op 01426, Third Dept 3-12-26

Practice Point: Consult this opinion for insight into the Home Rule and pre-emption issues raised by a claim that a NYC Local Law, which prohibits the sale of animal products produced by force-feeding, is pre-empted by the Agriculture and Markets Law which seeks to limit infringement on farming operations. The pre-emption argument was rejected.​

 

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HERE THE SCHOOL DISTRICT HAD ACTUAL KNOWLEDGE OF THE NATURE OF EACH NEGLIGENT-SUPERVISION CLAIM WITHIN 90 DAYS OF THE INCIDENTS; WHERE A SCHOOL HAS TIMELY ACTUAL KNOWLEDGE OF THE FACTS UNDERLYING A CLAIM, THE ABSENCE OF AN ADEQUATE EXCUSE FOR FAILING TO TIMELY FILE A NOTICE OF CLAIM IS NOT A BAR TO GRANTING LEAVE TO FILE A LATE NOTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim against defendant school district should been granted. The petition alleged negligent supervision a student who was assaulted, harassed, and bullied on specific occasions. There were contemporaneous incident reports. The school district, therefore, had knowledge of the nature of the claims within 90 days of each incident:

… [T]he petitioner established that the School District had actual knowledge of the essential facts constituting the claim within 90 days of each incident included in the notice of claim. The petitioner submitted, among other things, incident reports and documentation of investigations conducted by the School District within days of the incidents … , police reports that documented communications and an investigation by school officials … , an electronic communication between the petitioner and a school official … , and an “[a]ction [p]lan” created pursuant to a meeting between the petitioner and school officials where the alleged wrongful conduct and the plans to monitor the students and address the conduct were discussed … .

As the petitioner demonstrated that the School District acquired timely knowledge of the essential facts constituting the claim, the petitioner met her initial burden of showing that the School District would not be prejudiced by the late notice of claim … . In opposition to the petitioner’s initial showing, the School District failed to come forward with particularized evidence showing that the late notice had substantially prejudiced its ability to defend the claim on the merits … .

Although the petitioner failed to demonstrate a reasonable excuse for her failure to timely serve the notice of claim, “where, as here, there is actual knowledge and an absence of prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of claim” … . Matter of Polito v North Babylon Sch. Dist., 2026 NY Slip Op 01067, Second Dept 2-25-26

Practice Point: In the context of a petition for leave to file a late notice of claim against a school district, the absence of a reasonable excuse for timely filing the claim may be overlooked where it is demonstrated the school had timely knowledge of the facts underlying the claims.

 

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