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PLAINTIFF ALLEGED SHE WAS SUBJECTED TO SEXUAL MISCONDUCT BY BILL COSBY, THE STAR OF THE TELEVISION SERIES “THE COSBY SHOW,” WHILE COSBY WAS EMPLOYED BY DEFENDANT CW, THE OWNER OF THE TV STUDIO; THE MAJORITY DISMISSED THE NEGLIGENT HIRING, RETENTION AND SUPERVISION CAUSE OF ACTION AGAINST CW; THERE WAS A TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, reversing Supreme Court, over a two-justice dissenting opinion, determined the cause of action against Bill Cosby’s employer (CW) alleging negligent hiring, retention and supervision should have been dismissed  Plaintiff alleged she was subjected to sexual misconduct by Bill Cosby, the star of the television series “The Cosby Show,” while Cosby was employed by CW:

​To establish a claim of negligence, a plaintiff must show that there was a duty owed to the plaintiff by the defendant, that there was a breach of that duty, and that there was an injury proximately resulting therefrom … . Further, “[w]here the negligence claim relates to an employer’s retention and supervision of an employee, the complaint must include allegations that: (1) the employer had actual or constructive knowledge of the employee’s propensity for the sort of behavior which caused the injured party’s harm; (2) the employer knew or should have known that it had the ability to control the employee and of the necessity and opportunity for exercising such control; and (3) the employee engaged in tortious conduct on the employer’s premises or using property or resources available to the employee only through their status as an employee, including intellectual property and confidential information” … . * * *

… [T]he sole factor that distinguishes the present complaint from the negligent hiring, retention, and supervision claim against CW that we dismissed in B.B [a similar action against Bill Cosby by a different plaintiff] is the allegation in this case that plaintiff visited Cosby at CW’s television studio. But plaintiff does not allege that anything remotely illegal or tortious occurred during this one innocuous studio visit. Given that plaintiff had no relationship with CW and no tortious act was committed upon CW’s premises … , and given that Cosby is not alleged to have directly used any CW resources in committing his assaults … , the bare allegations that Cosby met with plaintiff at CW’s television studio and used his status as the star of a CW-produced television show to impress her — neither of which constitutes independently tortious or illegal activity — does not give rise to a sufficient nexus between Cosby’s employment by CW and his alleged assaults on plaintiff to support making CW liable for Cosby’s reprehensible conduct.

From the dissent:

… Cosby’s alleged use of the set to gain plaintiff’s trust provides the nexus between Cosby’s employment by CW and his alleged assaults; that nexus was not present in B.B. The allegation that Cosby groomed and preyed on plaintiff by inviting her to the set, and claiming that The Cosby Show wanted to hire plaintiff, satisfies the pleading requirement that Cosby “us[ed] property or resources available to [him] only through [his] status as an employee” … . Picard v Cosby, 2026 NY Slip Op 05612, First Dept 10-1-26

Practice Point: Consult this decision for an in-depth discussion of the elements of “negligent hiring, retention and supervision.”​

 

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DEFENDANT IN THIS SLIP AND FALL CASE WAS PUT ON NOTICE TO PRESERVE SURVEILLANCE VIDEO AS OF AUGUST 19; DEFENDANT’S EMPLOYEE AVERRED THAT THE VIDEO COULD HAVE BEEN AUTOMATICALLY DESTROYED BEFORE OR AFTER AUGUST 19; THEREFORE THE SPOLIATION ISSUE MUST BE DECIDED BY THE TRIER OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant (Jet Blue) destroyed video evidence of plaintiff’s slip and fall. Therefore, whether there was spoliation of evidence is to be decided by the trier of fact:

… [T]he plaintiff demonstrated that Jet Blue was on notice as of August 19, 2021, that it had an obligation to preserve the video surveillance footage … . Moreover, the affidavit of Jet Blue’s employee raised an issue of fact as to whether the video surveillance footage was destroyed before or after Jet Blue’s obligation to preserve it arose on August 19, 2021. Under these circumstances, a triable issue of fact exists as to whether spoliation of evidence occurred, which issue should be determined by the trier of fact … . The appropriate sanction for any such spoliation of evidence would be an adverse inference charge against Jet Blue, as the destruction of any video surveillance footage of the incident did not deprive the plaintiff of the opportunity to prove her case … . Fernandez v Port Auth. of N.Y. & N.J., 2026 NY Slip Op 05518, Second Dept 9-30-26

Practice Point: Sometimes spoliation of evidence is a jury question.​

 

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THE CONDITION WHICH CAUSED PLAINTIFF’S SLIP AND FALL WAS “OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS” AS A MATTER OF LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the condition which caused plaintiff’s slip and fall was “open and obvious and not inherently dangerous:”

While the owner or possessor of real property may have a duty to maintain its premises in a reasonably safe condition … , “there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous” … . “A condition is open and obvious if it is readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident” … .

Here, the evidence submitted by the defendants established, among other things, that the lighting condition was good at the time of the accident, that the colors of the wooden pallet and the white containers were in contrast to the surrounding floor, that the plaintiff observed the containers of cleaning supplies as she approached the area, and that there was sufficient space to navigate the hallway without incident. Thus, the defendants demonstrated, prima facie, that the condition was open and obvious and not inherently dangerous … . Scamardella v A. Duie Pyle, Inc., 2026 NY Slip Op 05565, Second Dept 9-30-26

Practice Point: Consult this “slip and fall” decision for another example of a condition deemed “open and obvious and not inherently dangerous” as a matter of law.

 

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PLAINTIFF STRUCK HER HEAD ON A WINDOW AIR CONDITIONING UNIT WHICH PROTRUDED FROM A SCHOOL BUILDING INTO A COURTYARD; THE PROTRUDING AIR CONDITIONER WAS DEEMED “OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS,” PRECLUDING LIABILITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the window air conditioner on which plaintiff struck her head was “open and obvious and not inherently dangerous:”

… [T]he plaintiff … allegedly was injured when she struck her head on an air conditioning unit protruding from a window in a courtyard of a school. * * *

A property owner has a duty to maintain its premises in a reasonably safe condition … . “In a premises liability case, a defendant property owner . . . who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of its existence” … . However, a property owner has no duty to protect or warn against conditions that are open and obvious and not inherently dangerous … . A condition is open and obvious if it is readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident … . Hoefler v Shoreham-Wading Riv. Cent. Sch. Dist., 2026 NY Slip Op 05384, Second Dept 9-23-26

Practice Point: Consult this decision for an example of a condition deemed “open and obvious and not inherently dangerous” as a matter of law.

 

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THE FEDERAL “ENDING FORCED ARBITRATION OF SEXUAL ASSAULT AND SEXUAL HARASSMENT ACT (EFAA)” PRECLUDED THE ENFORCEMENT OF A MANDATORY ARBITRATION CLAUSE IN A CONTRACT BETWEEN PLAINTIFF COLLEGE STUDENT AND HER SORORITY; THEREFORE PLAINTIFF COULD SUE THE SORORITY IN NEGLIGENCE FOR COMPELLING HER TO ATTEND A MIXER WHERE SHE WAS SEXUALLY ASSAULTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court in a matter of first impression, in a full-fledged opinion by Justice Landicino, determined that the federal “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act” (EFAA) precluded arbitration in a negligence suit by a college student against her sorority. Plaintiff-student alleged she was compelled by her sorority to attend a mixer with a fraternity where she was sexually assaulted. The contract between plaintiff and the sorority included a mandatory arbitration clause:

This case presents an issue of first impression for this Court: whether the …. EFAA … can serve to prevent arbitration, notwithstanding an arbitration clause in a contract between the parties, of an action sounding in negligence against a party that did not commit the alleged sexual assault. We hold that it can, under the circumstances presented here.

… According to the complaint, the plaintiff attended SUNY Cortland and was a member of the [defendant] sorority … .. … [A] fraternity chapter, Pi Kappa Phi … , allegedly held a mixer event off campus … . According to the complaint, the plaintiff, as a member of the sorority, was “expected and obligated by [the] sorority to attend the mandatory mixer event to be hosted by the fraternity.” The fraternity purportedly provided alcohol and other intoxicating substances to the attendees at the mixer event, which caused the plaintiff to become impaired. Allegedly, while attending the mixer event, the plaintiff met a member of the fraternity (hereinafter the alleged abuser) who took the plaintiff to a nearby premises where he sexually assaulted her. * * *

The issue raised on this appeal is whether the plaintiff may invoke the EFAA to prevent arbitration of her claims where the sorority did not commit the alleged sexual assault. The plaintiff’s cause of action in this matter does not sound in sexual assault. Rather, the cause of action sounds in negligence based on the alleged failure of the sorority to supervise and protect its members at a function that the members were required to attend, which exposed the plaintiff to the sexual assault. The question is whether the EFAA can bar arbitration of a complaint sounding in negligence only. * * *

… [A]lthough the sorority contends that the plaintiff’s cause of action sounds in negligence as opposed to sexual assault, that distinction is immaterial here. The negligence cause of action is “related” to the sexual assault dispute alleged in the complaint, which is all that is required under the EFAA … . While the sorority is a third party that was not directly involved in the sexual assault, the negligence claim is nonetheless “related” to the sexual assault dispute inasmuch as the plaintiff contends that the sorority placed her in a dangerous circumstance that led to the sexual assault. There is a clear logical nexus between the cause of action alleged in the complaint and the alleged sexual assault, which places this matter squarely within the ambit of the EFAA. C.N. v Sigma Delta Tau Socy., 2026 NY Slip Op 05405, Second Dept 9-23-26

Practice Point: Here plaintiff student sued her sorority in negligence for compelling her to attend a mixer with a fraternity where she was sexually assaulted. Plaintiff’s contract with the sorority included a mandatory arbitration clause. The federal “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act” (EFAA) applied to these facts to preclude enforcement of the arbitration clause.

 

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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.​

 

LENDING A KNIFE TO AN ACQUAINTANCE, WITHOUT INQUIRING AS TO ITS USE, DID NOT CREATE A DUTY OWED TO THE PERSON STABBED BY THE ACQUAINTANCE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the action against defendant store owners (F & S LLC) who gave defendant a knife which defendant used to stab the plaintiff should have been dismissed. The store owners did not owe a duty to plaintiff:

The plaintiff allegedly sustained personal injuries when the defendant William Volkes stabbed him with a knife. The incident allegedly occurred after the plaintiff attempted to retrieve his girlfriend’s cell phone from Volkes, with whom the plaintiff’s girlfriend was acquainted. After the plaintiff recovered the cell phone from Volkes, Volkes allegedly fled approximately one block to the defendant Frank and Sal, LLC (hereinafter F & S), a grocery market where he was a regular customer.

Once inside F & S, Volkes approached the deli section and allegedly asked an employee, who recognized Volkes, for a knife. Without inquiring into the purpose of Volkes’s request, but knowing him as a regular customer, the employee allegedly provided Volkes with a boning knife kept behind the deli counter. Volkes then allegedly exited F & S with the knife, returned to the plaintiff, and stabbed him. * * *

F & S established, prima facie, that it did not owe a duty to the plaintiff. F & S’s submissions established that it did not have sufficient authority and ability to control Volkes after he exited the premises and that it did not have a special relationship with the plaintiff … . In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted F & S’s motion for summary judgment dismissing the complaint insofar as asserted against it … . Torres v Frank & Sal, LLC, 2026 NY Slip Op 05340, Second Dept 9-16-26

Practice Point: Consult this decision for a rare discussion of a “duty” in the context of a negligence action. Here the defendants who gave an acquaintance a knife without inquiring as to its use did not owe a duty to the person stabbed by the acquaintance.​

 

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ALTHOUGH PLAINTIFF FELL DURING A SNOWSTORM, THE DEFENDANTS DID NOT DEMONSTRATE THE SLIPPERY CONDITION WAS NOT THE RESULT OF A PRIOR STORM; SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this ice and snow slip and fall case, determined defendants did demonstrate entitlement to summary judgment based on the storm in progress rule. Although defendants proved a snowstorm was in progress when plaintiff fell, they did not demonstrate the slippery condition was not the result of a prior storm:

“Under the storm in progress rule, ‘[a] property owner will not be held liable in negligence for a plaintiff’s injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter'” … .

Here, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint based on the storm in progress rule. Although the evidence submitted by the defendants in support of their motion established that a snowstorm was in progress at the time of the plaintiff’s fall, it failed to eliminate triable issues of fact as to whether the slippery condition upon which the plaintiff fell was the result of a prior storm, rather than the storm that was then in progress, and whether the defendants had constructive notice of the pre-existing condition … . Batista v Allerton Ave Estates, LLC, 2026 NY Slip Op 05265, Second Dept 9-16-26

Practice Point: Plaintiff fell during a snowstorm and Supreme Court granted summary judgment to defendants under the storm in progress rule. The Second Department reversed because the defendants did not demonstrate the slippery condition was not the result of a prior storm.

 

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IN THIS REAR-END COLLISION CASE, DEFENDANT’S AFFIRMATION THAT PLAINTIFF STOPPED IN THE HIGHWAY LANE FOR NO APPARENT REASON RAISED A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court in this rear-end collision case, determined defendant’s affirmation that plaintiff stopped for no apparent reason raised and question of fact:

… [T]he plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability through the submission of the plaintiff driver’s affidavit, in which he averred that his vehicle was struck in the rear by the defendants’ vehicle (see Vehicle and Traffic Law § 1129[a] …). However, an affirmation of the defendant driver, submitted in opposition to the motion, raised triable issues of fact as to whether the defendant driver had a nonnegligent explanation for the defendants’ vehicle striking the rear of the plaintiffs’ vehicle. According to the defendant driver, the plaintiff driver was solely at fault for causing the accident by making a sudden stop for no apparent reason in the middle of their lane of traffic on the highway … . Ramirez v Red Cloud Trucking, Inc., 2026 NY Slip Op 05332, Second Dept 9-16-26

Practice Point: In this rear-end collision case, defendant’s affirmation that plaintiff stopped in the highway lane for no apparent reason raised a question of fact whether there was a nonnegligent explanation for striking the back of plaintiff’s vehicle.

 

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THE DESTRUCTION OF VIDEO EVIDENCE OF THE SLIP AND FALL WARRANTED A SANCTION; HOWEVER, IT WAS AN ABUSE OF DISCRETION TO PRECLUDE THE DEFENSE FROM PRESENTING ANY EVIDENCE RE: LIABILITY; AN ADVERSE INFERENCE CHARGE WITH RESPECT TO THE VIDEO EVIDENCE IS AN APPROPRIATE SANCTION (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the appropriate sanction for the destruction of the video which depicted the slip and fall was an adverse inference charge with respect to the video evidence, not the preclusion of all defense evidence re: liability:

During discovery, the defendants produced a video that was one minute and seven seconds in length and which depicted the moments shortly after the plaintiff’s fall. The premises’s superintendent testified that he recorded the video on his cell phone from the building’s surveillance footage on the day of the incident. The portion of the surveillance video that the superintendent recorded does not capture the moment of the fall itself or any time prior to the fall. * * *

Supreme Court properly determined that an imposition of spoliation sanctions against the defendants was warranted, as the defendants had an obligation to preserve the subject surveillance videos and were at least negligent in failing to preserve them, and the destroyed evidence was relevant to the plaintiff’s claim … . However, the court improvidently exercised its discretion in precluding the defendants from presenting any testimony, evidence, or defense as to their liability at trial. Instead, under the circumstances, 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 … . Alvarez v 100-10 67th Rd. Condominium, 2026 NY Slip Op 05261, Second Dept 9-16-26

Practice Point: Here video evidence of the slip and fall was destroyed warranting a sanction. Preclusion of all defense evidence re: liability was an abuse of discretion. An adverse inference jury instruction was appropriate.

Similar issues and results in Houghton v Piperaro, 2026 NY Slip Op 05290, Second Dept 9-16-26.

 

 

 

 

 

 

 

 

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