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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.

 

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HERE IN THIS BUS-TRAFFIC-ACCIDENT CASE, THE DEFENDANTS ADMITTED THE BUS DRIVER WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT; A NEGLIGENT-HIRING-AND-RETENTION CAUSE OF ACTION, THEREFORE, WAS NOT AVAILABLE TO THE PLAINTIFFS; THE PLAINTIFFS WERE NOT ENTITLED TO DISCOVERY OF THE DRIVER’S PERSONNEL FILE OR THE POLICY MANUAL FOR DRIVER RETENTION AND TRAINING BECAUSE BECAUSE THOSE DOCUMENTS WERE NOT RELEVANT TO THE EMPLOYER’S LIABILITY UNDER RESPONDEAT SUPERIOR (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this bus-traffic-accident case, determined that neither the bus driver’s personnel file nor the policy manual relating to the retention and training of the bus driver were discoverable. Those records would only be relevant to an action for negligent hiring and retention, which (generally) is not available when the suit against the driver’s employer is based upon respondeat superior:

Generally, “where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior, and a plaintiff may not proceed with a cause of action to recover damages for negligent hiring and retention” … . Thus, since here, the defendants admit that [the driver] was acting within the scope of his employment at the time of the accident, neither his personnel file nor the portions of the defendants’ policy manual relating to the retention or training of [the driver] are discoverable … . In addition, the plaintiff failed to show that any alleged remaining portions of the policy manual “would yield matter material and necessary to the prosecution or defense of the action” … . Lewis v New York City Tr. Auth., 2026 NY Slip Op 05175, Second Dept 9-2-26

​Practice Point: Where the employer admits the employee was acting within the scope of his employment at the time of the accident, the employer is liable for the negligence of the employee under a theory of respondeat superior. Generally, in that circumstance a negligent hiring and retention cause of action is not available to the plaintiff.

 

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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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WHETHER A CONDITION IS “OPEN AND OBVIOUS” IS USUALLY A JURY QUESTION; IN THIS SLIP AND FALL CASE, PLAINTIFF TRIPPED AND FELL OVER THE FORK PART OF A FORKLIFT PARKED IN AN AISLE OF A HOME DEPOT STORE; THE ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that whether a condition is “open and obvious” is usually a question of fact for the jury:

“A landowner has a duty to maintain its premises in a reasonably safe condition” … . “However, a landowner has no duty to protect or warn against conditions that are open and obvious and not inherently dangerous” … . “The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … .

Here, the defendants’ submissions failed to eliminate all triable issues of fact as to whether the forklift was open and obvious and not inherently dangerous … . “Some hazards, although discernable, may be hazardous because of their nature and location” … . In particular, the plaintiff’s deposition testimony raised a triable issue of fact as to whether the forklift’s location, in relation to the five quarter decking the plaintiff was loading into his cart when the accident occurred, constituted an inherently dangerous condition … . The plaintiff testified, inter alia, that he could not put his cart right next to the location in the aisle where he was retrieving the five quarter decking because the forklift was in the way. Simon v Plainview Ave. Assoc., 2026 NY Slip Op 05205, Second Dept 9-2-26

Practice Point: Here plaintiff tripped over the fork part of a forklift parked in an aisle of a Home Depot store. The complaint should not have been dismissed. Whether the condition was open and obvious and not inherently dangerous was a question of fact.

 

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THE JURY VERDICT IN THIS REAR-END COLLISION TRIAL WAS IRREVOCABLY INCONSISTENT AND SHOULD HAVE BEEN SET ASIDE; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the jury verdict in this rear-end collision case was “irrevocably inconsistent” and must be set aside. The only nonnegligent explanation offered by the defendant was that he suffered a medical emergency just before the collision. On the verdict form the jury answered “no” to the question whether defendant suffered a medical emergency. But the jury also answered “no” to the question whether defendant was negligent in the operation the vehicle:

Supreme Court should have granted that branch of the plaintiff’s motion which was pursuant to CPLR 4404(a) to set aside the verdict as against the weight of the evidence and for a new trial. “Where, as here, the jury verdict ‘is irreconcilably inconsistent, that verdict must be set aside as contrary to the weight of the evidence'” … . Although the plaintiff did not object to the jury verdict as inconsistent prior to the discharge of the jury, thus failing to preserve an issue of law … “‘there is no preservation requirement for weight of the evidence review'” … .

Here, since the only nonnegligent explanation for the accident provided by the defendants was an alleged sudden medical emergency, it was irreconcilably inconsistent for the jury to answer “No” when asked whether the decedent “experience[d] a sudden, unforeseen medical emergency such as a seizure prior to the accident … , and was his operation of the vehicle reasonable under the circumstances,” while also responding “No” when asked whether the decedent was “negligent in the operation of the vehicle.” Accordingly, there must be a new trial on the issue of liability. Pitt v Rosenblatt, 2026 NY Slip Op 05200, Second Dept 9-2-26

​Practice Point: Here the “irrevocably inconsistent” jury verdict was against the weight of the evidence and should have been set aside. The issue need not be preserved for appeal.

 

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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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DEFENDANT TREATING NEUROLOGIST INDICATED ON A DMV FORM FOR REINSTATEMENT OF THE PATIENT-DRIVER’S LICENSE THAT THE DRIVER’S LAST SEIZURE WAS TWO YEARS BEFORE WHEN, IN FACT, THE LAST SEIZURE WAS FOUR MONTHS BEFORE; TWO MONTHS AFTER REINSTATEMENT OF THE LICENSE, THE DRIVER HAD A SEIZURE-RELATED ACCIDENT IN WHICH PLAINTIFFS’ DECEDENTS DIED; THE ACTION AGAINST THE NEUROLOGIST SOUNDED IN ORDINARY NEGLIGENCE, NOT MEDICAL MALPRACTICE, AND WAS THEREFORE TIMELY BROUGHT (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Higgitt, determined the action sounded in negligence, not medical malpractice, rendering the action timely brought. Defendant neurologist was treating the non-party driver for seizures. In filling out a NYS Department of Motor Vehicles (DMV) form for reinstatement of the driver’s license, defendant stated that the driver’s last seizure was about two years before, when in fact the last seizure was four months before. To be entitled to reinstatement of the driver’s license, the driver must have been free of seizures for the previous 12 months. Two months after the driver’s license was reinstated, the driver had a seizure which resulted in a horrific traffic accident in which two people died. The lawsuit was brought by their estates:

… [P]laintiffs’ survival-action claims, premised on the theory that Dr. Avila erroneously recorded the date of the driver’s last seizure in the DMV form, which error led to the DMV reinstating the driver’s license, sound in ordinary negligence. The crux of the survival-action claims is not Dr. Avila’s negligence in furnishing medical treatment to the driver; rather, the essence of the claims is that Dr. Avila failed to fulfill a different duty. The nature of the act underlying those claims — transcribing a date from a treatment note to a governmental administration form — “is more administrative than medical in nature” … . Because the act underpinning the survival-action claims is administrative in nature, jurors can use their common everyday experience to evaluate whether Dr. Avila exercised due care … . That a physician made the alleged administrative error does not transform the claim from one sounding in ordinary negligence to one for medical malpractice; the characterization of a particular claim depends not on the title of the actor but on the nature of the challenged act … .

Ultimately, the core issue related to plaintiffs’ survival-action claims — whether Dr. Avila failed to exercise due care in recording a fact on the DMV form — may not implicate questions of medical competence or judgment regarding the treatment of the driver … . Unlike the inquiry on a medical malpractice claim, whether Dr. Avila breached his duty to exercise due care in recording a fact on the DMV form does not depend on an analysis of the medical treatment rendered to the driver … . Lafferty v Avila, 2026 NY Slip Op 05147, First Dept 8-27-26

Practice Point: If a jury does not need to analyze the medical treatment rendered by a doctor to determine a doctor’s negligence, the action does not sound in medical malpractice and is subject to a three-year statute of limitations for ordinary negligence.

 

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PLAINTIFF-TEACHER WAS STRUCK IN THE BACK BY A BASKETBALL THAT BOUNCED OFF THE RIM DURING A RECESS-PERIOD BASKETBALL GAME; PLAINTIFF SUED THE COMPANY WHICH CONTRACTED WITH THE SCHOOL TO PROVIDE A BASKETBALL COACH FOR RECESS GAMES; NO “ESPINAL”EXCEPTIONS APPLIED SO PLAIINTIFF, AS A NON-PARTY, COULD NOT SUE UNDER THE CONTRACT; IN ADDITION, PLAINTIFF, BY STANDING 10 TO 12 FEET FROM THE BASKETBALL COURT, ASSUMED THE RISK OF BEING STRUCK BY A BASKETBALL (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff-teacher’s action against the company hired by the school (Asphalt Green) to provide a basketball coach for school recess-periods should have been dismissed. Plaintiff was standing 10 to 12 feet from the basketball court when a basketball bounced off the rim and struck her in the back. Plaintiff was not a party to the contract between the school and Asphalt Green and none of the Espinal exceptions applied. In addition, plaintiff assumed the risk of being struck by a basketball:

A contracting party can assume a duty of care toward a third party where: 1) “the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm”; 2) “the plaintiff detrimentally relies on the continued performance of the contracting party’s duties”; or 3) “the contracting party has entirely displaced the other party’s duty to maintain the premises safely” (Espinal, 98 NY2d at 140 [internal citations omitted]). However, none of these exceptions apply to this case.

The facts do not establish that defendants launched an instrument of harm. * * * A missed basketball shot that bounces off the rim isa frequent occurrence in basketball games. * * * There is no claim that this was anything other than a normal basketball game being played during recess. * * *

Under the primary assumption of risk doctrine, “one is deemed to have assumed, as a voluntary participant, spectator, or even bystander certain risks occasioned by athletic or recreational activity, and to the extent of such an assumption, any legally enforceable duty to reduce the risks of such activity is limited” … . Carrero-Santiago v Asphalt Green, Inc., 2026 NY Slip Op 05144, First Dept 8-27-26

Practice Point: Plaintiff-teacher was not a party to the contract between the school and the company which provided a recess basketball coach. Because no “Espinal” exceptions applied, plaintiff, who was struck by an errant basketball while supervising recess, could not sue under the contract.

Practice Point: Plaintiff-teacher, who was standing 10 to 12 feet from the basketball court while supervising recess, assumed the risk of being struck by a basketball.

 

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THE COMPLAINT ALLEGING A VIOLATION OF JUDICIARY LAW 487 WAS DISMISSED; IT WAS ALLEGED AN ATTORNEY WAS AWARE HIS CLIENT’S SLIP AND FALL WAS STAGED; THERE WAS A TWO-JUSTICE DISSENT (FIRST DEPT). ​

The First Department, dismissing the complaint, over a two-justice dissent, determined the allegations of a Judiciary Law violation and fraud against an attorney were insufficient. It was alleged the attorney proceeded with a slip and fall action despite knowledge that the accident was staged:

Defendants/third-party plaintiffs failed to demonstrate “a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of” [attorney] Roytblat, or demonstrate that deliberate misrepresentations necessary to sustain a Judiciary Law § 487 claim were made to defendants and the court …”.

From the dissent:

The third-party complaint adequately meets the heightened pleading standard for a claim under Judiciary Law § 487. It alleges that video evidence appears to show Wilson Pena, a third-party defendant who concededly performs investigative services for Roytblat, deliberately creating the sidewalk defect at issue in the underlying personal injury action. Plaintiff also appears in the video to feign a trip-and-fall accident caused by the defect. The video evidence, links to which were included in the third party complaint, supports this allegation. The complaint further alleges that defendants’ attorney informed Roytblat … that the underlying personal injury claim that Roytblat was pursuing was fraudulent, and that video evidence existed showing fabrication of the sidewalk defect and staging of the accident. Despite having knowledge of the fraud, Roytblat continued to pursue the litigation over the following months and sought to discontinue the action only when informed that a news report concerning the fraud was about to air. Salas v 711-715 E 231st St., LLC, 2026 NY Slip Op 05064, First Dept 8-20-26

Practice Point: Here is a rare example of a Judiciary Law section 487 cause of action alleging an attorney proceeded with a slip and fall case knowing the accident was staged. Those allegations were deemed insufficient and the complaint was dismissed.

 

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HERE THE COMPLAINT WAS DISMISSED BECAUSE COUNSEL REFUSED TO PROCEED WITH THE TRIAL ON A PARTICULAR DAY; THAT SINGLE INCIDENT DID NOT AMOUNT TO “NEGLECT TO PROSECUTE;” THEREFORE PLAINTIFF WAS ENTITLED TO THE SIX-MONTH EXTENSION FOR FILING A NEW COMPLAINT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that the timely-commenced slip and fall case was not dismissed for failure to prosecute and the default did not constitute a determination on the merits. Therefore plaintiff’s filing of a new complaint within six months of the dismissal was timely:

When a prior action was timely commenced and dismissed on grounds other than voluntarily discontinuance, lack of personal jurisdiction, neglect to prosecute, or the entry of a final judgment on the merits, “CPLR 205(a) effectively tolls the running of a statutory period to permit refiling within six months” of the termination of the prior action … . Here, it is not disputed that the first action was timely commenced and that this action was commenced within six months of its termination.

… [T]he first action was not dismissed for “neglect to prosecute” within the meaning of CPLR 205(a). Where the dismissal of a prior action was for neglect to prosecute, in order to serve as a bar to the savings provision of CPLR 205(a), the court must have “set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” … . Although the Supreme Court here set forth on the record that the plaintiff’s counsel had refused to proceed with the trial on one particular day, such conduct did not demonstrate a general “pattern” of delay in proceeding with the litigation so as to preclude application of CPLR 205(a) … .

Moreover, also contrary to the defendant’s contention, “dismissal of an action for a default pursuant to 22 NYCRR 202.27 does not constitute a determination on the merits” … . Thus, the six-month extension afforded by CPLR 205(a) was applicable, and the instant action was timely commenced. Rivera v Waterview Towers, Inc., 2026 NY Slip Op 05041, Second Dept 8-19-26

Practice Point: To constitute a dismissal for failure to prosecute, the judge must place on the record the specific conduct demonstrating a general pattern of delay. Here the complaint was dismissed because counsel refused to proceed to trial on a particular day. That was not a dismissal for “failure to prosecute” and the six-month extension for filing a new complaint was available.

 

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