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THE SIX-MONTH WAITING PERIOD ASSOCIATED WITH THE REVIVAL OF OTHERWISE TIME-BARRED ACTIONS PURSUANT TO THE CHILD VICTIMS ACT IS NEITHER A STATUTE OF LIMITATIONS NOR A CONDITION PRECEDENT; THEREFORE, PURSUANT TO FEDERAL PROCEDURAL LAW, THE SECOND CIRCUIT MAY RULE THAT DEFENDANT FORFEITED THE RIGHT TO A TIMELINESS DISMISSAL OF THE FEDERAL COMPLAINT (BASED ON THE ARGUMENT PLAINTIFF’S ACTION WAS PREMATURE) BY FAILING TO TIMELY RAISE THE ISSUE (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, answering a certified question from the Second Circuit, determined the six-month waiting period associated with the revival of negligence actions pursuant to the Child Victims Act, creating a two-year window for the filing of otherwise time-barred actions, was neither a statute of limitations nor a condition precedent. Therefore, under federal procedural law, the defendant’s failure to timely raise the issue in the federal proceedings forfeited his right to dismissal of the complaint on the ground plaintiff’s action was premature:

In 2019, the legislature passed the Child Victims Act (CVA), which provided that previously time-barred tort claims based on sex offenses against children could be brought within a specified time (see CPLR 214-g). As amended, the CVA provided that such a claim “is hereby revived, and action thereon may be commenced not earlier than six months after, and not later than two years and six months after” February 14, 2019—i.e., “the effective date of this section” (id.). In other words, actions on these claims could be commenced “not earlier than” August 14, 2019 and “not later than” August 14, 2021. * * *

On April 26, 2019, plaintiff commenced a negligence action in state court against defendant, alleging that a teacher employed in one of defendant’s schools engaged in unlawful sexual conduct with her in and around 2009 and 2010, when she was a student under age 17, and that, in 2013, as a result of that conduct, the teacher pleaded guilty to rape in the third degree. * * *

On September 3, 2021, defendant moved for summary judgment dismissing the complaint on statute of limitations grounds. Defendant argued, for the first time, that the complaint must be dismissed because plaintiff commenced her action before CPLR 214-g’s period for filing claims began. Significantly, defendant filed its motion less than three weeks after the statutory period for filing claims ended, meaning that plaintiff would be unable to recommence a timely action if defendant’s motion succeeded. Jones v Cattaraugus-Little Val. Cent. Sch. Dist., 2025 NY Slip Op 01007, CtApp 2-20-25

Practice Point: Here the Court of Appeals, answering the Second Circuit’s question, determined the six-month waiting period for an otherwise time-barred action brought pursuant to the Child Victims Act was not a statute of limitations or a condition precedent. Therefore the Second Circuit was free to deny a federal defendant’s motion to dismiss the Child Victims Act complaint on the ground the action was premature.

 

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BARE ALLEGATIONS THAT A SCHOOL KNEW OR SHOULD HAVE KNOWN OF A TEACHER’S PROPENSITY TO ABUSE STUDENTS, UNSUPPORTED BY ANY FACTUAL ALLEGATIONS, ARE NOT ENOUGH TO STATE A CAUSE OF ACTION FOR NEGLIGENCE OR NEGLIGENT RETENTION (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case against a school (Central Yeshiva), determined the complaint did not state causes of action for negligence or negligent retention of the teacher (Charitonov) who allegedly sexually abused the plaintiff. Bare allegations that the school knew or should have known of the teacher’s propensity for abuse are not enough to avoid dismissal:

Here, the complaint failed to state causes of action alleging negligence and negligent retention, supervision, and direction against Central Yeshiva, as the complaint did not sufficiently plead that Central Yeshiva knew or should have known of Charitonov’s propensity to commit the alleged wrongful acts and failed to provide any factual allegations from which it could be inferred that Central Yeshiva had prior notice of similar conduct at its dormitory … . The complaint merely asserted bare legal conclusions that Central Yeshiva knew or should have known of Charitonov’s propensity for improper conduct without providing any factual allegations that Charitonov’s abuse of the plaintiff was foreseeable … . Moreover, the plaintiff failed to adequately demonstrate any basis to allow him to conduct discovery prior to directing dismissal of those causes of action (see CPLR 3211[d] …). Doe v Educational Inst. Oholei Torah, 2025 NY Slip Op 00948, Second Dept 2-19-25

Practice Point: In a Child Victims Act case against a school stemming from the abuse of a child by a teacher, bare allegations that the school knew or should have known of the teacher’s propensity for abuse do not state a cause of action for negligence or negligent retention. The complaint must include supporting factual allegations.

 

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A MUNICIPALITY OWES A CHILD IT PLACES IN FOSTER CARE A SPECIAL DUTY SUCH THAT THE MUNICIPALITY CAN BE LIABLE FOR A NEGLIGENT PLACEMENT WHICH LEADS TO FORESEEABLE HARM TO THE CHILD (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Troutman, over a two-judge dissenting opinion, determined a municipality owes a child placed in foster care a special duty, such that the municipality, although performing a governmental function, can be liable for negligent placement of a child:

Today we hold that municipalities owe a duty of care to the children the municipalities place in foster homes because the municipalities have assumed custody of those children. As a result, we reverse the decision of the Appellate Division.

Plaintiff, formerly a child in foster care, commenced this action pursuant to the Child Victims Act (see CPLR 214-g) against defendant Cayuga County and “Does 1-10,” who she alleged were “persons or entities with responsibilities for [p]laintiff’s safety, supervision and/or placement in foster care.” According to the complaint, the County placed plaintiff in foster care in 1974, when she was three months old. While in the foster home selected by the County, plaintiff allegedly suffered horrific abuse. Plaintiff alleged that her foster parent sexually abused her over the course of approximately seven years, beginning when she was 18 months old and continuing until she was eight years old. The foster parent allegedly coerced plaintiff’s compliance with the sexual abuse by inflicting severe physical abuse, resulting in plaintiff sustaining broken bones and a head wound. * * *

By assuming legal custody over the foster child, the applicable government official steps in as the sole legal authority responsible for determining who has daily control over the child’s life … . We thus hold that a municipality owes a duty to a foster child over whom it has assumed legal custody to guard the child from “foreseeable risks of harm” arising from the child’s placement with the municipality’s choice of foster parent … . Weisbrod-Moore v Cayuga County, 2025 NY Slip Op 00903, CtApp 2-18-25

Practice Point: A municipality generally is not liable for injury resulting from the exercise of a governmental function absent a special duty owed to the injured party. Resolving a split of authority, here the Court of Appeals held a municipality owes a special duty to a child it places in foster care.

 

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IMPROPER CROSS-EXAMINATION OF PLAINTIFF ABOUT HIS STATUS AS A DEFENDANT IN A PENDING LAWSUIT WARRANTED GRANTING PLAINTIFF’S MOTION FOR A MISTRIAL (SECOND DEPT).

The Second Department, reversing the denial of plaintiff’s motion for a mistrial, determined plaintiff was improperly cross-examined about his status as a defendant in a pending lawsuit:

… Supreme Court should have granted the plaintiff’s motion for a mistrial based upon improper cross-examination of the plaintiff about a pending lawsuit against him relating to his alleged failure to pay for an unrelated medical procedure. Where a lawsuit has not resulted in an adverse finding against a witness, counsel should not be permitted to ask the witness if he or she has been sued since the fact that a lawsuit has been commenced, in and of itself, has little or no probative value with regard to credibility … . Here, the court improvidently permitted defense counsel to cross-examine the plaintiff as to whether he was the defendant in a pending lawsuit alleging nonpayment, since the lawsuit had not resulted in an adverse finding against the plaintiff and the fact that the lawsuit had been commenced, in and of itself, had little to no probative value with regard to the plaintiff’s credibility … . Moreover, defense counsel’s reference to an allegation that the plaintiff had taken $200,000 in insurance proceeds that was not forwarded to medical providers and, after being precluded from ascertaining from the plaintiff whether that allegation was true, defense counsel’s reference to “someone” taking $250,000 that “didn’t belong to them,” prejudiced the plaintiff, who was the sole eyewitness on his behalf. Drayton v Putnam Hosp. Ctr., 2025 NY Slip Op 00845, Second Dept 2-13-25

Practice Point: The cross-examination of the plaintiff about his status as a defendant a pending lawsuit was improper and warranted a mistrial.

 

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DEFENDANT IN THIS REAR-END COLLISION CASE RAISED A NONNEGLIGENT EXPLANATION FOR THE COLLISION; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff’s summary judgment motion in this rear-end collision case should not have been granted. Defendant had raised a nonnegligent explanation for the collision:

In this action arising from a vehicle collision, plaintiff established prima facie entitlement to summary judgment as to liability. In his sworn affidavit, he averred that he was slowing down on the expressway due to upcoming traffic congestion when his vehicle was hit in the rear by a tractor trailer truck driven by defendant Scott Martin. “It is well settled that a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle and imposes a duty on the part of the operator of the moving vehicle to come forward with an adequate nonnegligent explanation” for the collision … .

However, defendants raised an issue of fact in opposition by submitting Martin’s affidavit stating that plaintiff pulled directly in front of him from the nearby on-ramp, during inclement weather, in a manner that Martin described as “sudden.” This statement in Martin’s affidavit presented a nonnegligent explanation for the collision, raising an issue of fact as to whether plaintiff was comparatively negligent for swerving in front of Martin or cutting him off … . Madera v Charles Hukrston Truck, Inc., 2025 NY Slip Op 00788, Frist Dept 2-11-25

Practice Point: Here is a rare example of a nonnegligent explanation for a rear-end collision which was deemed sufficient to defeat plaintiff’s motion for summary judgment.

 

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THE JUDGE SHOULD NOT HAVE CONSIDERED A NEW ARGUMENT RAISED FIRST IN REPLY; THE HOLDER OF AN EASEMENT OVER THE PARKING LOT, NOT THE OWNER OF THE PARKING LOT, IS PRIMARILY RESPONSIBLE FOR KEEPING THE LOT FREE OF ICE AND SNOW, NOTWITHSTANDING AN AGREEMENT BETWEEN THE EASEMENT HOLDER AND THE OWNER IN WHICH THE OWNER AGREED TO REMOVE ICE AND SNOW (FOURTH DEPT).

The Fourth Department, reversing Supreme Court in this slip and fall case, determined (1) Supreme Court should not have considered a new argument raised for the first time in reply, and (2) defendant, as the holder of an easement over the parking lot, was primarily responsible for keeping the lot free of ice and snow, notwithstanding the terms of a “parking agreement” between defendant and the owner of the lot in which the owner agreed to remove ice and snow from the lot:

… [T]he court improperly granted the motion based on an argument advanced for the first time in reply [i.e., the existence of the “parking agreement”]. 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 arguments in support of, or new grounds [or evidence] for the motion” … . * * *

We agree with the Second Circuit Court of Appeals that the duty of an easement holder “is the same as that owed by a landowner” and is nondelegable (Sutera v Go Jokir, Inc., 86 F3d 298, 308 [2d Cir 1996] …). We therefore conclude that defendant’s “duty to exercise reasonable care toward third parties making use of the parking lot subject to the easement, once established, is not abrogated by a covenant on the part of the servient owner[, i.e., the nonparty owner of 875 East Main Street,] to clear ice and snow from the lot. The general rule that a servient owner may assume duties of maintenance, while undoubtedly relevant as between dominant and servient owners, does not apply when the rights of injured third parties are implicated,” as in the case here … . The fact that the nonparty owner of 875 East Main Street may also have had a duty to maintain the parking lot does not serve to insulate defendant from liability to plaintiff. Otero v Rochester Broadway Theatre League, Inc., 2025 NY Slip Op 00769, Fourth Dept 2-7-25

Practice Point: An argument based on new evidence first presented in reply should not have been considered by the court.​

Practice Point: Here the holder of the easement over the parking lot, as opposed to the owner of the parking lot, was primarily responsible for the removal of ice and snow.

 

 

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IT WAS ALLEGED A TEACHER SEXUALLY ABUSED PLAINTIFF STUDENT ONCE OR TWICE A WEEK FOR THREE YEARS ON SCHOOL GROUNDS, SOMETIMES FOLLOWED BY ABUSE OFF SCHOOL GROUNDS; THE NEGLIGENT SUPERVISION CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the school’s motion for summary judgment in this Child Victims Act case should not have been granted. It was alleged plaintiff-student was sexually abused by a teacher once or twice a week for three years. Based on the frequency of the alleged abuse, the school did not demonstrate it did not have constructive notice of the abuse and properly supervised the teacher. Because abuse which allegedly occurred off the school premises was preceded by abuse on school grounds, the off-premises-abuse causes of action should not have been dismissed:

… [T]he defendants failed to establish, prima facie, that they lacked constructive notice of the teacher’s alleged abusive propensities and conduct … . In particular, given the frequency of the alleged abuse, which occurred once or twice per week over the course of three school years in the same closet while the teacher left the other students in his class unattended, the defendants failed to eliminate triable issues of fact as to whether they should have known of the abuse … . Additionally, the defendants failed to eliminate triable issues of fact as to whether their supervision of the teacher was negligent … .

Further, although the plaintiff alleged acts of sexual abuse that occurred outside of school premises and school hours, the defendants’ submissions showed that those alleged acts were preceded by instances when the plaintiff allegedly was sexually abused by the teacher during school hours on a regular basis. Sallustio v Southern Westchester Bd. of Coop. Educ. Servs., 2025 NY Slip Op 00690, Second Dept 2-5-25

Practice Point: Consult this decision for a concise summary of the elements of the causes of action where a teacher is accused of frequently sexually abusing a student both on and off school grounds.

 

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THE FACT THAT PLAINTIFF SLIPPED AND FELL ON “BLACK ICE” DOES NOT SUPPORT THE CONCLUSION THE ICE WAS NOT VISIBLE; THIS SLIP AND FALL COMPLAINT SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND DEFENDANT DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court in this slip and fall case, determined there was a question of fact whether the “black ice” in the parking lot was visible such that defendant had constructive notice of its presence:

“To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [a] defendant’s employees to discover and remedy it” … . In moving for summary judgment, defendants argued, and the court agreed, that they did not have constructive notice inasmuch as plaintiff slipped on black ice and thus the icy condition was not visible and apparent. Although plaintiff allegedly slipped on black ice, “that fact alone does not establish as a matter of law that the ice was not visible and apparent” … . Moreover, the fact that plaintiff did not see the ice before she fell is not dispositive of whether the condition was visible and apparent … . Here, defendants submitted excerpts from plaintiff’s deposition where she described the ice, as she observed it after she fell, as “[a] wide circle” and “a big patch” that “was the same color as the ground” and not shiny. We conclude that defendants failed to meet their initial burden of establishing as a matter of law that the icy condition was not visible and apparent … . Doyle v Tops Mkts., LLC, 2025 NY Slip Op 00577, Fourth Dept 1-31-25

Practice Point: Black ice is not invisible as a matter of law.​

 

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A POLICE OFFICER DIRECTING TRAFFIC IS PERFORMING A GOVERNMENTAL FUNCTION REQUIRING THE EXERCISE OF DISCRETION; THE OFFICER AND THE CITY ARE THEREFORE IMMUNE FROM LIABLITY FOR A RELATED ACCIDENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the city defendants and defendant police officer (McMillan) were entitled to summary judgment in this traffic accident case. It was alleged that McMillan negligently directed the vehicle which struck plaintiff to enter the intersection. Because directing traffic is a governmental function requiring the exercise of discretion, the governmental function immunity doctrine controls:

… [T]he City defendants and McMillan established their prima facie entitlement to judgment as a matter of law dismissing the negligence cause of action insofar as asserted against them irrespective of the conflicting evidence as to whether McMillan directed the driver of the vehicle into the intersection. Under the facts as alleged, if McMillan directed the driver of the vehicle into the intersection, McMillan’s action was discretionary and he and the City defendants are thus immune from liability under governmental function immunity … . If, on the other hand, McMillan was standing on the side of the road not directing any traffic, there was no negligent act and no basis for liability for him or the City defendants … . In opposition, the plaintiff failed to raise a triable issue of fact. Hershkovitz v Brown, 2025 NY Slip Op 00436, Second Dept 1-29-25

Practice Point: A police officer directing traffic is performing a governmental function requiring the exercise of discretion. The officer and the city are therefore immune from liability for a related traffic accident.

 

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ALTHOUGH THE ABUTTING PROPERTY OWNER CAN BE LIABLE FOR A SLIP AND FALL CAUSED BY A SIDEWALK DEFECT CREATED BY THE PROPERTY OWNER’S SPECIAL USE, HERE A CURB CUT FOR A DRIVEWAY, A SUBSEQUENT PURCHASER OF THE PROPERTY WHO DOES NOT CONTINUE THE SPECIAL USE WILL NOT BE HELD LIABLE FOR THE DEFECT (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined defendant property owner was not liable for any sidewalk defects created by the prior owner’s special use (a driveway) because defendant did not continue with that special use:

… [T]he defendants established, prima facie, that the property was a one-family residence that was owner occupied, and used exclusively for residential purposes. Therefore, pursuant to section 7-210(b) of the Administrative Code of the City of New York, the defendants established, prima facie, that they were not liable for dangerous conditions on the sidewalk abutting the property, which they did not affirmatively create, voluntarily but negligently repair, or create through a special use of the sidewalk … . The defendants also met their burden of demonstrating, prima facie, that they did not affirmatively create, voluntarily but negligently repair, or create through a special use of the sidewalk, the alleged hole in curb cut which caused the plaintiff to fall.

In opposition, the plaintiff failed to raise a triable issue of fact. Even assuming, arguendo, that the plaintiff provided competent evidence that a prior owner of the property made a special use of the sidewalk as a driveway, the defendants had no obligation to repair damage to the sidewalk because they did not continue to derive any special benefit from the use of the sidewalk after they purchased the property … . Byrams v Hamilton, 2025 NY Slip Op 00419, Second Dept 1-29-25

Practice Point: In order for a property owner to be liable for a sidewalk defect created by a prior owner’s special use, the current owner must have continued that special use, not the case here.

 

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