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DEFENDANT IN THIS INTERSECTION TRAFFIC ACCIDENT CASE HAD THE GREEN LIGHT AND WAS GOING STRAIGHT; PLAINTIFF WAS IN THE INTERSECTION MAKING A LEFT TURN FROM THE ONCOMING LANE; THERE WAS A QUESTION OF FACT ABOUT WHO HAD THE RIGHT OF WAY UNDER THE VEHICLE AND TRAFFIC LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined there was a question of fact concerning which of the two vehicles which collided had the right of way. Defendant had the green light and was driving straight. Plaintiff was making a left turn across defendant’s lane. Pursuant to Vehicle and Traffic Law section 1141, if plaintiff was in the process of turning when the light turned green, plaintiff would have had the right of way:

Plaintiff argues that defendant was required under Vehicle and Traffic Law § 1111 to yield the right-of-way because plaintiff’s vehicle was in the intersection before defendant’s vehicle … . Vehicle and Traffic Law § 1111 provides, in relevant part, that traffic facing a steady green signal — here defendant — may proceed straight but shall yield the right of way to other traffic lawfully within the intersection at the time the signal is exhibited. Plaintiff testified that he almost completed his left turn through the intersection when he first saw defendant. The evidence does not conclusively establish which vehicle was required to yield. Moreover, both parties testified that the truck blocked the intersection and prevented them from being able to observe oncoming traffic.

Additionally, under Vehicle and Traffic Law § 1143, a driver “about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed.” Plaintiff contends that defendant was required to yield because defendant attempted to enter the roadway from the bicycle and parking lanes to get around the truck. However, the record does not provide conclusive evidence of each vehicle’s location leading up to the accident and which party ultimately had a duty to yield. Accordingly, there are questions of fact precluding summary dismissal of plaintiff’s complaint. Sanchez-Rodriguez v Bruce, 2026 NY Slip Op 06077, First Dept 10-20-26

Practice Point: In an intersection accident case where one vehicle is traveling straight through the intersection on green and the oncoming vehicle is in the intersection making a left turn when the light changed, the vehicle which is in the intersection first has the right of way (Vehicle and Traffic Law 1141).

 

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NEW GROUNDS OR EVIDENCE IN SUPPORT OF PLAINTIFFS’ MOTION TO DISMISS RAISED IN REPLY SHOULD NOT HAVE BEEN CONSIDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that new arguments or evidence presented in the reply papers should not have been considered:

… [P]laintiffs failed to establish that the defendant’s affirmative defense alleging the expiration of the statute of limitations was without merit as a matter of law. The plaintiffs’ moving papers did not support their conclusory allegations that the defendant’s treatment of the injured plaintiff beginning on May 11, 2021, and continuing through July 15, 2022, made their action timely based on the continuous treatment doctrine … . The plaintiffs’ attempt to remedy this deficiency by submitting portions of a purported medical chart through their counsel’s reply affirmation was improper. The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new grounds or evidence in support of the motion … . Malone v Spaliviero, 2026 NY Slip Op 05948, Second Dept 10-14-26

Practice Point: Here new evidence submitted in reply papers should not have been considered by the court.

 

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PLAINTIFF’S HUSBAND ALLEGEDLY BECAME INTOXICATED AT DEFENDANT’S RESTAURANT, FELL DOWN A STAIRCASE AND DIED FROM HIS INJURIES; PURSUANT TO THE DRAM SHOP ACT, PLAINTIFF WIFE SUED THE RESTAURANT BOTH INDIVIDUALLY AND AS EXECUTOR OF DECEDENT’S ESTATE; HER INDIVIDUAL SUIT SURVIVED DISMISSAL; BUT THE SUIT ON BEHALF OF DECEDENT’S ESTATE WAS DISMISSED; AN INTOXICATED PERSON, OR THE ESTATE OF AN INTOXICATED PERSON, CAN NOT SUE UNDER THE DRAM SHOP ACT FOR INJURIES RESULTING FROM INTOXICATION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined Vera, the widow of the allegedly intoxicated decedent, could sue under the Dram Shop Act individually, but not as a representative of the decedent’s estate. Decedent fell down a staircase at defendant restaurant (Shuko):

In this Dram Shop Act action, plaintiffs allege that defendant Shuko, a restaurant, repeatedly served alcoholic beverages to the decedent, causing his intoxication and subsequent fall down a staircase inside the restaurant. The decedent sustained severe injuries which, according to plaintiffs, later resulted in his death. Vera, who is the decedent’s widow, is suing both in her individual capacity and as executor of the decedent’s estate, and is seeking damages, inter alia, for loss of support. * * *

…Vera’s allegations that Shuko sold alcohol to the decedent despite his being visibly intoxicated, and that she was personally injured by the loss of means of support is sufficient to survive a motion to dismiss … . …

However, while “[t]he Dram Shop Act creates a cause of action in favor of a third party injured or killed by an intoxicated person, [ ] it does not create a cause of action in favor of the intoxicated person” … . Accordingly, “an intoxicated person or his or her estate cannot maintain a cause of action under the Dram Shop Act for injuries sustained as a result of that person’s own intoxication” … . The second cause of action against defendant Shuko therefore fails to state a cause of action insofar as it is asserted on behalf anyone other than plaintiff Vera individually. Vera v BH Broadway Owner LLC, 2026 NY Slip Op 05921, First Dept 10-13-26

Practice Point: Here the Dram Shop Act was applied where an intoxicated restaurant patron fell down a restaurant staircase and subsequently died from his injuries. Decedent’s wife could sue the restaurant under the Dram Shop Act in her individual capacity for loss of support. However, decedent’s wife could not sue under the Dram Shop Act on behalf of the decedent’s estate. …  “[A]n intoxicated person or his or her estate cannot maintain a cause of action under the Dram Shop Act for injuries sustained as a result of that person’s own intoxication” … .

 

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A FEDERAL COURT APPOINTED PLAINTIFF-RECEIVER TO TAKE OVER A BUSINESS RUNNING A PONZI SCHEME; THE PLAINTIFF-RECEIVER SUED THE BROKER TO WHICH THE PONZI-SCHEME FUNDS WERE TRANSFERRED; BECAUSE PLAINTIFF-RECEIVER STEPPED INTO THE SHOES OF A WRONGDOER (THE PONZI SCHEME OPERATOR) TO SUE ANOTHER WRONGDOER (THE BROKER), THE “IN PARI DELICTO” (“IN EQUAL FAULT”) DOCTRINE APPLIED TO PROHIBIT THE SUIT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Michael, over a comprehensive dissenting opinion, determined the plaintiff-receiver (appointed by the federal court to takeover a business running a Ponzi scheme) was prohibited from suing the broker to which the Ponzi scheme funds were transferred by the doctrine of “in pari delicto” (“in equal fault”). Under the doctrine, the courts will not get involved in a suit between two wrongdoers. The issue in this case is whether the court-appointed receiver steps into the shoes of the “Ponzi scheme” wrongdoer. The First Department held that the doctrine applies to the receiver, over an extensive dissent:

The common law doctrine of in pari delicto “mandates that the courts will not intercede to resolve a dispute between two wrongdoers” … . In other words, the doctrine bars a corporation engaged in wrongdoing from suing its co-conspirators on the grounds of negligence or fraud … . “The justice of the in pari delicto rule is most obvious where a willful wrongdoer is suing someone who is alleged to be merely negligent” … . The notion that “a wrongdoer should not profit from his own misconduct is so strong in New York that we have said the defense applies even in difficult cases and should not be weakened by exceptions” … .

The wrongdoer’s misconduct is not only imputed to the corporation through the bad acts of its officers … , but also to the corporation’s successors … . …

Plaintiff [receiver] argues, and the dissent agrees, that the in pari delicto doctrine does not apply to plaintiff because he is not a derivative shareholder plaintiff or a bankruptcy trustee appointed pursuant to 11 USC § 541, but rather a receiver appointed pursuant to 28 USC § 3103. It is true that plaintiff, as a receiver, is not subject to section 541 of the Bankruptcy Code. Nevertheless, there is no significant difference between bankruptcy trustees and nonbankruptcy receivers for purposes of in pari delicto … . Castleman v Interactive Brokers LLC, 2026 NY Slip Op 05904, First Dept 10-13-26

Practice Point: Here the “in pari delicto” (“in equal fault”) doctrine was applied to prohibit a suit by a court-appointed receiver which had taken over a business running a Ponzi scheme. The receiver sued the broker to which the Ponzi-scheme funds had been transferred. Under the “in pari delicto” doctrine, a court will not get involved in a dispute between wrongdoers. The doctrine applies to a wrongdoer’s successor, even a court-appointed receiver.

 

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DEFENDANT REAR DRIVER PROVIDED A NONNEGLIGENT EXPLANATION FOR THE REAR-END COLLISION PRECLUDING SUMMARY JUDGMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant in this rear-end collision case raised a question of fact precluding summary judgment. Defendant alleged plaintiff abruptly changed lanes without signaling and came to a sudden stop in front of defendant’s vehicle:

… [A] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision to rebut the inference of negligence” … . “A nonnegligent explanation may include that a vehicle made a sudden lane change in front of a defendant’s vehicle, forcing the defendant to stop suddenly” … .

Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting an affidavit wherein she averred that the rear of her stopped vehicle was struck by the front of the defendants’ vehicle … . However, in opposition, the defendants raised triable issues of fact as to the existence of a nonnegligent explanation for striking the rear of the plaintiff’s vehicle. According to the defendant driver’s affidavit, the accident occurred when the plaintiff’s vehicle abruptly changed lanes, without signaling, and immediately came to a sudden stop in front of the defendants’ vehicle … . Johnson v Payne, 2026 NY Slip Op 05775, Second Dept 10-7-26

Practice Point: Consult this decision for an example of a “nonnegligent” explanation for a rear-end collision which precluded summary judgment.​

 

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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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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.”​

Similar issues and result in M.P. v Cosby, 2026 NY Slip Op 05859 First Dept 10-8-26

 

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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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