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HERE, EVEN THOUGH THE INITIAL ACTION WAS TIMELY ONLY BECAUSE OF THE SIX-MONTH “SAVINGS PROVISION” EXTENSION IN CPLR 205(A), THE SECOND ACTION, COMMENCED AFTER THE DISMISSAL OF THE FIRST FOR LACK OF STANDING, CAN BE DEEMED TIMELY UNDER A SECOND CPLR 205(A) SIX-MONTH “SAVINGS PROVISION” EXTENSION (SECOND DEPT).​ ​

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice LaSalle, determined the “savings provision” of CPLR 205(a) allows a second six-month extension of the time to file a new action after a dismissal which is not on the merits. In this wrongful death and Public Health Law 2801-d action against a nursing home and hospital, the complaint was filed an served while the application for appointment of an executor was pending. The complaint was dismissed because the plaintiff did not have standing. Although the statute of limitations had run, the initial action was timely because of the savings provision in CPLR 205(a). The action was commenced again whiled the application for appointment of an executor was still pending. This time the complaint was dismissed with prejudice on the ground the six-month extension in CPLR 205(a) is only available once:​

The primary issue raised on this appeal is whether CPLR 205(a) permits a litigant to commence an otherwise untimely new action within six months of the dismissal of a prior action where that prior action was, itself, made timely only by a previous application of CPLR 205(a). This issue appears to be one of first impression in a State apellate court. Although the United States Court of Appeals for the Second Circuit (hereinafter the Second Circuit) has answered this question in the negative (see Ray v Ray, 22 F4th 69 [2d Cir]), that holding is not binding on this Court, and we respectfully disagree with it and conclude that the plain language of CPLR 205(a) does allow a litigant to commence such an action. Accordingly, while the Supreme Court properly dismissed the instant complaint on the ground that the plaintiff had not yet obtained letters testamentary to become the personal representative of the decedent’s estate, the dismissal should have been without prejudice instead of with prejudice. ​​Tumminia v Staten Is. Univ. Hosp., 2025 NY Slip Op 03352, Second Dept 6-4-25

Practice Point: Here an action which was timely only by the application of the six-month “savings provision” extension in CPLR 205(a), and which was dismissed for lack of standing, did not preclude a second identical action which could only be deemed timely by a second application of the CPLR 205(a) savings provision.​

 

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IN THIS CHILD VICTIMS ACT CASE ALLEGING SEXUAL ABUSE BY A SCHOOL JANITOR, THE NEGLIGENT AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION AND THE DEMAND FOR PUNITIVE DAMAGES SHOULD HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the causes of action against defendant school for negligent and intentional infliction of emotional distress, and the demand for punitive damages, should have been dismissed. This Child Victims Act case alleged plaintiff-student was sexually abused by a janitor:

… Supreme Court should have directed dismissal of the cause of action alleging negligent infliction of emotional distress insofar as asserted against each of the school defendants, as it is duplicative of the remaining negligence causes of action … . A cause of action is properly dismissed as duplicative when it is “based on the same facts and seek[s] essentially identical damages” … .

Furthermore, the amended complaint failed to state a cause of action to recover damages for intentional infliction of emotional distress. “The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress” … . “The subject conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” … . Furthermore, conclusory assertions are insufficient to set forth a cause of action sounding in the intentional infliction of emotional distress … . Here, even accepting the conclusory allegations in the amended complaint as true and according the plaintiff the benefit of every possible favorable inference, the plaintiff failed to allege conduct by the school defendants that was “so outrageous in character, and so extreme in degree,” as to qualify as intentional infliction of emotional distress … . Accordingly, the Supreme Court should have directed dismissal of the cause of action to recover damages for intentional infliction of emotional distress insofar as asserted against each of the school defendants pursuant to CPLR 3211(a)(7).

… Supreme Court should have directed dismissal of the demand for punitive damages insofar as asserted against each of the school defendants. “[P]unitive damages are available for the purpose of vindicating a public right only where the actions of the alleged tort-feasor constitute gross recklessness or intentional, wanton or malicious conduct aimed at the public generally or are activated by evil or reprehensible motives” … . Here, the plaintiff’s allegations against the school defendants amount to “nothing more than allegations of mere negligence and do not rise to the level of moral culpability necessary to support a claim for punitive damages” … . Redd v Brooklyn Friends Sch., 2025 NY Slip Op 03214, Second Dept 5-28-25

Practice Point: Consult this decision for the criteria for sufficiently alleging negligent and intentional infliction of emotional distress causes of action, as well as the criteria for a demand for punitive damages against a school in a Child Victims Act case​.

 

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PLAINTIFF’S DECEDENT WAS KILLED WHEN DEFENDANT DRIVER, WHO WAS BEING CHASED BY THE POLICE DEFENDANTS, COLLIDED WITH PLAINTIFF’S DECEDENT’S VEHICLE; THE DEFENSE VERDICT IN THE “RECKLESS DISREGARD” ACTION AGAINST THE POLICE WAS REVERSED BECAUSE OF THE OMISSION OF RELEVANT EVIDENCE AND THE ADMISSION OF PREJUDICIAL EVIDENCE; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the defense verdict and ordering a new trial in this “reckless disregard” action against the Nassau County Police Department stemming from a fatal traffic accident during a police chase, determined several evidentiary errors deprived plaintiff’s decedent of a fair trial. The vehicle which the police were chasing, driven by defendant Daley, collided with plaintiff’s decedent’s vehicle:

Supreme Court erred in declining to admit the Nassau County Police Department Rules and Regulations (hereinafter the rules) into evidence. An officer’s alleged violation of internal guidelines, although not dispositive, may be some evidence of whether an officer acted with reckless disregard … . The court compounded this error when it charged the jury pursuant to PJI 2:79A, specifically charging the jury that it may consider the rules when determining whether the police officers acted with reckless disregard for the safety of others. To the extent necessary, the rules could have been admitted with a limiting instruction that they may considered only as some evidence of recklessness, along with other factors … .

Further, the Supreme Court erred in admitting the full decision from a Dunaway/Huntley/Mapp hearing in the defendant driver’s criminal proceeding, as its subject matter was collateral and merely served to bolster the testimony of the police officers … and was therefore prejudicial. The court also erred in entirely precluding cross-examination of Detective Peter Ellison with respect to prior bad acts. Under the circumstances of this case, these errors were not harmless (see CPLR 2002), as the evidence related directly to issues to be determined by the jury … , i.e., the officers’ credibility, the nature of the police stop, and the question of when the officers activated their emergency lights. Yun v Daley, 2025 NY Slip Op 03224, Second Dept 5-28-25

Practice Point: In the “reckless disregard” action against the police stemming from a high-speed chase, the police department rules should have been admitted in evidence because a violation of the rules is some evidence of negligence.

Practice Point: Here the defendant driver who collided with plaintiff’s decedent during the police chase was charged criminally. It was prejudicial error to allow a decision in the criminal matter in evidence in this “reckless disregard” action against the police. It was also error to preclude the cross-examination of a detective about prior bad acts.

 

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HERE PLAINTIFF HAD THE RIGHT-OF-WAY ENTERING AN INTERSECTION AND DEFENDANT FAILED TO YIELD; PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT ON LIABILITY AND DISMISSAL OF DEFENDANTS’ COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs in this intersection-accident case was entitled to summary judgment on liability and dismissal of defendants’ comparative negligence affirmative defense:

“‘A driver who enters an intersection against a red traffic light in violation of Vehicle and Traffic Law § 1110(a) is negligent as a matter of law'” … . “A driver who has the right-of-way is entitled to anticipate that other drivers will obey traffic laws that require them to yield” … . Moreover, “a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield cannot be comparatively negligent for failing to avoid the collision” … .

“[T]he issue of a plaintiff’s comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant’s affirmative defense alleging comparative negligence” … . Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law dismissing the defendants’ affirmative defense alleging comparative negligence by demonstrating that the plaintiff driver entered the intersection with a green traffic light and had the right-of-way and that Mendez’s conduct was the sole proximate cause of the accident … . In opposition, the defendants failed to raise a triable issue of fact as to whether the plaintiff driver was comparatively negligent in causing the accident … . Ederi v Mendez, 2025 NY Slip Op 03041, Second Dept 5-21-25

Practice Point: A driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent and is entitled to summary judgment dismissing the comparative negligence affirmative defense.

 

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ALTHOUGH THE SCHOOL DISTRICT HAD TIMELY KNOWLEDGE OF THE INCIDENT AND THE PETITIONER’S INJURIES, IT DID NOT HAVE TIMELY KNOWLEDGE OF THE FACTS THAT UNDERLIE THE LEGAL THEORIES OF LIABILITY; THEREFORE THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner, a nurse hired to care for M.C., an infant, was not entitled to leave to file a late notice of claim against the school district for injuries allegedly suffered when M.C. struck her in a stairway at M.C.’s elementary school. Although there was an incident report and a police report, the school district’s timely actual knowledge of the incident and the injuries did not demonstrate knowledge of the essential facts constituting the claim:

… [T]he petition failed to establish that the District acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter. “Actual knowledge of the essential facts underlying the claim means knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the [proposed] notice of claim; the public corporation need not have specific notice of the theory or theories themselves” … . “[K]nowledge of the accident itself and the seriousness of the injury does not satisfy this enumerated factor where those facts do not also provide the public corporation with knowledge of the essential facts constituting the claim” … .

Here, while an employee incident report, a police incident report, and the involvement of an employee of the District in the incident may have established the District’s actual knowledge of the incident, they did not provide the District with actual knowledge of all of the essential facts underlying the claim … . Among other things, although the District was presumably aware that M. C.’s individualized education program (hereinafter IEP) allegedly required him to have an aide with him at all times due to aggression, and that no such aide had been assigned to him at the time of the incident, neither the IEP nor the incident reports described the incident while making a connection between [petitioner’s] injuries and negligent conduct on the part of the District … . Matter of Cooke v Mamaroneck Union Free Sch. Dist., 2025 NY Slip Op 03062, Second Dept 5-21-25

Practice Point: One of the criteria for leave to file a late notice of claim against a school district is that the district have had timely knowledge of the facts underlying the claim. Timely knowledge of the incident and injuries is not sufficient. The district must have had timely knowledge of the facts underlying the theory or theories of liability.

 

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IF DEFENDANT DRIVER, COCUZZO, WAS AN EMPLOYEE OF DEFENDANT RANDALL AT THE TIME OF THE ACCIDENT, RANDALL WOULD BE VICARIOUSLY LIABLE; NOT SO IF COCUZZO WAS AN INDEPENDENT CONTRACTOR; THE “EMPLOYER VS INDEPENDENT CONTRACTOR” ISSUE MUST BE RESOLVED BY THE TRIER OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined whether defendant Randall Provisions, Inc. was vicariously liable for defendant Cocuzzo’ s traffic accident depended on a question of fact, i.e., whether Cocuzzo was an employee or an independent contractor. Therefore Randall’s motion for summary judgment should not have been granted:

Randall submitted, inter alia, transcripts of the deposition testimony of Cucuzzo and the deposition testimony of Gregory L. Randall, its principal. Cucuzzo and Gregory both testified that Randall paid Cucuzzo in cash, issued him a 1099 tax form at the end of the year, and did not provide him with any fringe benefits, as well as that Cucuzzo used his own vehicle to travel his merchandising route. These facts all weigh in favor of the conclusion that Cucuzzo was an independent contractor … . However, Randall’s submissions also included evidence indicating the existence of an employer-employee relationship. For example, Cucuzzo testified that Gregory gave him three Pepsi-branded t-shirts to wear while working for Randall … , and that Randall provided him with a daily stipend to reimburse him for gas mileage on top of his regular pay … . Cucuzzo also testified that, when he first began working for Randall, he received approximately two days of training from a Randall worker as to the company’s “way of doing” the merchandising work … . According to Cucuzzo, he regularly checked in with a Randall delivery driver to coordinate their respective work obligations and to ensure that Cucuzzo only reported to a store after the driver had delivered products … . Although his work days fluctuated from week to week, Cucuzzo and Gregory both testified that Gregory would provide Cucuzzo with his work schedule in advance … , as well as determine the list of stores that Cucuzzo was required to visit … . Gaudreau v Cucuzzo, 2025 NY Slip Op 03046, Second Dept 5-21-25

Practice Point: Here there was evidence the driver involved in the accident was an employee and there was evidence he was an independent contractor. If the driver was an employee, his employer would be vicariously liable, not so if the driver was an independent contractor. The issue must be resolved by the trier of fact.

 

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PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY DEFENDANT PROPERTY OWNER IN THIS STAIRCASE SLIP AND FALL CASE, SUFFICIENTLY IDENTIFIED THE CAUSES OF PLAINTIFF’S FALL AND RAISED A QUESTION OF FACT ABOUT DEFENDANT’S CONSTRUCTIVE NOTICE OF THE CONDITION OF THE STAIRCASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the plaintiff’s deposition testimony adequately identified the causes of his staircase slip and fall and raised a question of fact about the defendant property owner’s constructive notice of the condition of the staircase. Therefore defendant’s motion for summary judgment should not have been granted:

“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” … . “[A] defendant moving for summary judgment can [also] make a prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of the plaintiff’s fall without engaging in speculation” … .

Here, the defendant failed to establish, prima facie, that the plaintiff was unable to identify the cause of his fall without resorting to speculation … . In support of her motion, the defendant submitted, among other things, a transcript of the plaintiff’s deposition testimony, wherein he testified that he could not see where he was stepping because of poor lighting conditions in the stairwell, and as he attempted to place his left foot on a step, either the handrail shook or his foot slipped on the carpet, and he felt himself going backward. As the plaintiff’s left foot was in the air, his right foot slipped backwards because the carpet was worn. As such, the plaintiff identified the cause of his fall as a combination of the lighting, the handrail, and the poor condition of the carpet. Therefore, the defendant failed to establish, prima facie, that the plaintiff did not know what had caused him to fall … . In addition, the defendant failed to establish, prima facie, that she did not have actual or constructive notice of the allegedly dangerous condition … . Fitzmorris v Alexander, 2025 NY Slip Op 03044, Second Dept 5-21-25

Practice Point: If a plaintiff identifies a combination of factors which allegedly caused plaintiff’s slip and fall, the plaintiff has not failed to identify the proximate cause of the fall. Here plaintiff alleged poor lighting and either the handrail shook or his foot slipped on the worn carpet. Those allegations were deemed to have sufficiently identified the proximate cause(s) of the fall and to have raised a question of fact about defendant property owner’s constructive notice of the condition of the staircase.

 

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IN THIS CHILD VICTIMS ACT CASE ALLEGING DAILY SEXUAL ABUSE BY A TEACHER, THE PLAINTIFF’S AND A FACULTY MEMBER’S DEPOSITION TESTIMONY RAISED A QUESTION OF FACT ABOUT WHETHER DEFENDANT SCHOOL DISTRICT HAD CONSTRUCTIVE NOTICE OF THE TEACHER’S PROPENSITY FOR ABUSE AND THE ABUSE ITSELF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant school district’s motion for summary judgment in this Child Victims Act case should not have been granted. Plaintiff alleged daily sexual abuse by a teacher. The school district submitted plaintiff’s deposition transcript and a faculty member’s deposition transcript in support of the summary judgment motion. The plaintiff’s allegations of daily abuse and the faculty member’s testimony that students had informed him of the abuse and he believed other teachers were aware of the abuse raised questions of fact about negligent hiring and retention of the teacher and negligent supervision of the plaintiff:

In support of their motion, the defendants submitted … a transcript of the deposition testimony of the plaintiff, who testified that over the course of the school year, while he was in the seventh grade, he was sexually abused by the teacher daily and that the teacher’s abusive propensities were common and open knowledge in the middle school’s community. The defendants also submitted a transcript of the deposition testimony of a faculty member who was employed by the school district at the same time as the teacher, who testified that students had informed him that the teacher engaged in inappropriate conduct and that he believed other teachers were aware of said alleged conduct. Therefore, the defendants’ own submissions demonstrated the existence of triable issues of fact as to whether the defendants had actual or constructive notice of the alleged abuse of the plaintiff and of the teacher’s alleged abusive propensities and as to whether the defendants’ supervision of the plaintiff and the teacher was negligent … . Since the defendants failed to meet their prima facie burden, the court should have denied the defendants’ motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff’s opposition papers … . T.F. v Clarkstown Cent. Sch. Dist., 2025 NY Slip Op 03042, Second Dept 5-21-25

Practice Point: In Child Victims Act cases alleging frequent sexual abuse by a teacher, courts are increasingly willing to hold that the plaintiff’s allegations of frequent abuse alone are sufficient to raise a question of fact about constructive notice on the part of the school.

 

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PLAINTIFF WAS INJURED WHEN A STEP BROKE AS HE STEPPED ON IT; THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THERE WAS NO SIGN THE STEP WAS DEFECTIVE; HOWEVER, THE LABOR LAW 241(6) CAUSE OF ACTION, BASED ON AN INDUSTRIAL CODE PROVISION REQUIRING THAT A STAIRCASE BE “FREE OF DEFECTS,” PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the Labor Law 200 and negligence causes of action based upon a step which broke when plaintiff stepped on it should have been dismissed, but the Labor Law 241(6) cause of action, based upon the same defective step, properly survived summary judgment:

Defendants, owner and construction manager, are entitled to summary judgment dismissing plaintiff’s negligence and Labor Law § 200 claims … . … [T]he testimony in the record, including plaintiff’s statements that he observed nothing wrong with the stairs when he ascended and descended several times on the day of his accident, demonstrates that there was no visible or apparent damage to the step that broke as he stepped on it … . Thus, any defect with the step was latent so that defendants could not have discovered it upon a reasonable inspection … . * * *

Supreme Court … properly denied summary judgment to defendants on the Labor Law § 241(6) claim, to the extent based on Industrial Code (12 NYCRR) § 23-1.7(f). Defendants fail to show that this provision, which “imposes a duty upon a defendant to provide a safe staircase, free of defects,” does not apply … . Instead, the evidence shows that the step was defective since it broke under plaintiff’s foot … . Solarte v Brearley Sch., 2025 NY Slip Op 02995, First Dept 5-15-25

Practice Point: Here plaintiff was injured when a step broke under his weight. The Labor Law 200 and negligence causes of action should have been dismissed because the defect in the step could not have been detected. However, the Labor Law 240(1) cause of action, based on the same defective step, survived summary judgment because an Industrial Code provision requires that staircases be “free of defects”—an illustration of the stark difference between negligence-based liability and liability based on a regulatory violation.

 

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IN THIS CHILD VICTIMS ACT CASE, THE ALLEGED FREQUENCY OF THE ABUSE BY A TEACHER RAISED QUESTIONS OF FACT ABOUT THE SCHOOL DISTRICT’S CONSTRUCTIVE NOTICE OF THE ABUSE AND WHETHER ITS SUPERVISION OF PLAINTIFF STUDENT WAS NEGLIGENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined this Child Victims Act action alleging the negligent hiring, retention and supervision of a teacher, as well as negligent supervision of plaintiff student, should not have been dismissed. The defendant school district did not eliminate questions of fact about whether it had constructive notice of the abuse based upon the alleged frequency of the abuse:

… [T]he defendants failed to establish, prima facie, that they lacked constructive notice of the teacher’s alleged abusive propensities and conduct … . Considering, among other things, the frequency of the alleged abuse, which occurred over the course of two school years, inter alia, in a classroom and inside the teacher’s vehicle, the defendants did not eliminate triable issues of fact as to whether they should have known of the alleged abuse … . The defendants also failed to demonstrate, prima facie, that their supervision of both the teacher and the plaintiff was not negligent … . Trunco v Eastport- S. Manor Cent. Sch. Dist., 2025 NY Slip Op 02951, Second Dept 5-14-25

Practice Point: In a Child Victims Act action against a teacher, allegations of the frequency and the locations of the abuse of a student may be sufficient to raise questions of fact about whether the school district had constructive notice of the abuse and whether the supervision of the student was negligent.

 

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