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HERE IN THIS TRAFFIC ACCIDENT CASE THE DRIVER OF THE VEHICLE IN WHICH PLAINTIFF WAS A PASSENGER DIED DURING THE PENDENCY OF THE ACTION; PLAINTIFF PASSENGER HAD SUED DECEDENT DRIVER AND THE DEFENDANT TRUCKING COMPANY; THE ATTORNEYS FOR THE DECEDENT DRIVER DID NOT HAVE THE AUTHORITY TO MOVE TO DISMISS THE COMPLAINT AGAINST THE DECEDENT DRIVER; THE DEFENDANT TRUCKING COMPANY DID NOT GIVE THE INTERESTED PARTIES THE REQUIRED NOTICE OF ITS MOTION TO DISMISS BASED UPON THE DRIVER’S DEATH; AND PLAINTIFF PASSENGER DID NOT COMPLY WITH THE PROCEDURES FOR THE APPOINTMENT OF THE PUBLIC ADMINISTRATOR TO REPRESENT THE DECEDENT DRIVER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined (1) the attorneys for the decedent driver did not have the authority to move to dismiss plaintiff-passenger’s action against the decedent because the decedent’s death during the pendency of the action divested the court of jurisdiction, (2) the defendant’s motion to dismiss based upon the driver’s death should not have been granted because defendant did not notify the parties with an interest in decedent’s estate of the motion, and (3) plaintiff-passenger’s cross-motion to appoint the Public Administrator to represent the driver’s estate should not have been granted because plaintiff did not notify parties interested in the estate of the cross-motion and did not otherwise follow the procedures for such an appointment:

“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a). Moreover, any determination rendered without such substitution will generally be deemed a nullity” … . The death of a party terminates his or her attorney’s authority to act on behalf of the deceased party … . * * *

“CPLR 1021 defines the procedural mechanisms for seeking a substitution of successor or representative parties, and for the dismissal of actions where substitutions are not timely sought” … . CPLR 1021 provides, in pertinent part, that “[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made.” Further, “a motion to dismiss pursuant to CPLR 1021 requires that notice be provided to persons interested in the decedent’s estate” … . * * *

… [T]he plaintiff failed to sufficiently demonstrate that she provided notice of her cross-motions to persons interested in [the] estate … . Moreover, the plaintiff “failed to demonstrate the steps [she] had taken to secure the appointment of a personal representative in the appropriate Surrogate’s Court or that resort to the appropriate Surrogate’s Court was otherwise unfeasible . . . and otherwise failed to adequately demonstrate why the appointment of a temporary administrator was needed to avoid undue delay and prejudice” … . Ford v Luckain, 2026 NY Slip Op 01493, Second Dept 3-18-26

Practice Point: Consult this decision for insight into the procedures which must be followed when a party in a pending traffic-accident case dies, divesting the court of jurisdiction and curtailing the authority of the decedent’s attorneys to act on decedent’s behalf.

 

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PLAINTIFF WAS A CO-PILOT OF A HELICOPTER USED TO PROVIDE AN AERIAL PLATFORM FOR WORK ON POWER LINES; THE HELICOPTER STRUCK A POWER LINE AND PLAINTIFF JUMPED FROM THE HELICOPTER FROM A HEIGHT OF 75 FEET; THE LABOR LAW 240(1) AND 241(6) STRICT LIABILITY CAUSES OF ACTION WERE PREEMPTED BY THE FEDERAL AVIATION ACT (FAA); THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED; RATHER THE FEDERAL STANDARD OF CARE SHOULD BE APPLIED TO THOSE CAUSES OF ACTION (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Ford, determined the Labor Law 240(1) and 241(6) six causes of action were preempted by the Federal Aviation Act (FAA) but the negligence and Labor Law 200 causes of action should not have been dismissed because the federal standard of care can be applied to them. Plaintiff was the co-pilot of a helicopter which was being used to provide an aerial platform for work on power lines. The helicopter struck a power line and plaintiff jumped out of the helicopter from a height of 75 feet:

Under the federal rules, “[t]he pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft” (14 CFR 91.3[a] …). Various federal courts have held that the pilot thereby has the “sole responsibility to determine whether it is safe or unsafe to undertake the proposed flight” … . * * *

Additionally, under the federal rules, “[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another” (14 CFR 91.13[a]). This rule is “[c]entral” to the FAA’s overarching standard of care …. Common-law negligence cases require a more stringent standard of care, “that of a reasonable person under the same or similar circumstances” … . Labor Law § 200 codifies the common-law negligence standard … , while Labor Law §§ 240(1) and 241(6) “subject contractors and owners to absolute strict liability” … . The standards of care underlying the four sources of liability alleged by the plaintiff—i.e., liability for common-law negligence and under Labor Law §§ 200, 240(1), and 241(6)—thereby conflict with, and are preempted by, the federal recklessness standard. …

Where applicable, the effect of preemption of a state standard of care is not to preclude recovery or “to deprive Plaintiffs of their state remedies, but rather, to substitute a federal standard of care for New York’s reasonably-prudent-person standard” … . Fabia v Power Auth. of the State of N.Y., 2026 NY Slip Op 01489, Second Dept 3-18-26

Practice Point: Here, although the Federal Aviation Act (FAA) preempted the strict liability Labor Law 240(1) and 241(6) causes of action in this helicopter-accident case, the negligence and Labor Law 200 causes of action should not have been dismissed because the federal standard of care can be applied to them.

Practice Point: Consult this opinion for an in-depth analysis of the issues raised by preemption of state Labor Law and negligence claims stemming from a helicopter accident by the Federal Aviation Act (FAA).

 

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THE ATTORNEY REPRESENTED PLAINTIFF DRIVER AND PLAINTIFF PASSENGERS IN THIS REAR-END COLLISION CASE; THE COUNTERCLAIM FOR INDEMNIFICATION AGAINST PLAINTIFF DRIVER CREATED A “PECUNIARY” CONFLICT OF INTEREST BETWEEN PLAINTIFF DRIVER AND PLAINTIFF PASSENGERS; THE ATTORNEY WAS DISQUALIFIED FROM REPRESENTING ALL THE PLAINTIFFS (FIRST DEPT).

The Second Department, reversing Supreme Court, determined the attorney, Gambone, should have been disqualified from representing the plaintiff driver and the plaintiff-passengers in this rear-end collision case. The defendant asserted a counterclaim for indemnification against plaintiff driver, which created a “pecuniary” conflict of interest between the driver and the passengers. It is not clear from the decision why Gambone was precluded from representing the passengers and well as the driver:

… [T]he defendants demonstrated that Gambone’s representation of both the plaintiff driver and the passengers created a conflict of interest … . Although the passengers contend that there was no conflict of interest because the plaintiff driver, whose vehicle allegedly was struck in the rear while he was stopped at a red traffic signal, was not at fault in the happening of the accident, the pecuniary interests of the plaintiff driver conflicted with those of the passengers once the defendants asserted the counterclaim against the plaintiff driver … . Moreover, under the circumstances of this case, the defendants sufficiently demonstrated that Gambone should be disqualified from continuing to represent any plaintiffs in this action … . Diaz v Gomez, 2026 NY Slip Op 01487, First Dept 3-18-26

Practice Point: Even though this was a rear-end collision case and it is not clear that plaintiff driver was negligent, the defendant’s counterclaim against plaintiff driver for indemnification created a “pecuniary” conflict of interest between plaintiff driver and plaintiff passengers. Therefore the attorney was disqualified from representing both plaintiff driver and plaintiff passengers. For reasons which are not provided in the decision, the attorney was disqualified from representing all of the plaintiffs.​

 

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PLAINTIFF DID NOT KNOW WHAT CAUSED HER TO SLIP ON A STAIRWAY STEP BUT SHE TESTIFIED SHE LOOKED FOR SOMETHING TO HOLD ONTO AND THERE WAS NO HANDRAIL; THERE WAS A QUESTION OF FACT WHETHER THE ABSENCE OF A HANDRAIL WAS A PROXIMATE CAUSE OF HER FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this stairway slip and fall case should not have been granted. Although plaintiff did not know what caused her to slip on the step, she testified she “wanted something to hold on to” but there was no handrail:

Although the plaintiff testified that she did not know what caused her to slip on the step, she also testified that she “wanted to hold onto something,” but she “didn’t have anything to hold onto.” Even if the plaintiff’s fall was precipitated by a misstep, her testimony that she looked for something to hold onto, but there was nothing there, presented “an issue of fact as to whether the absence of a handrail was a proximate cause of her injury” … . Flores v 1298 Grand, LLC, 2026 NY Slip Op 01340, Second Dept 3-11-26

Practice Point: Here plaintiff’s testimony that she did not know what caused her to slip on a stairway step did not warrant summary judgment in defendant’s favor. There was no handrail and plaintiff testified she “looked for something to hold onto.” Therefore a question of fact was raised about whether the absence of a handrail rendered the stairway unsafe and was a proximate cause of the fall.

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THE GOVERNOR’S EMERGENCY COVID-19 TOLLS OF STATUTES OF LIMITATIONS EXTENDED THE TWO-YEAR WINDOW FOR FILING CHILD VICTIMS ACT (CVA) CAUSES OF ACTION BY 228 DAYS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Voutsinas, determined the amendment of the Child Victims Act (CVA), which enlarged to window for filing otherwise time-barred actions, did not supersede the governor’s COVID-19 executive orders tolling statutes of limitations. Therefore two-year window for filing CVA actions was extended by the 228-day COVID-19 tolls and plaintiff’s action was timely:

… [T]his Court concludes that the executive orders issued by the Governor and the Legislature’s amendment of the CVA all functioned together to enlarge and enhance the period of time for survivors to commence CVA actions. This Court finds the contention of [defendants] that the CVA amendment supplanted the executive orders unpersuasive. The CVA amendment and the executive orders work in tandem to accommodate the peculiar difficulties precluding survivors of child sex abuse to come forward in pursuit of justice. The extended revival window provided survivors an opportunity to avail themselves of the CVA revival window despite restrictions by the pandemic or personal trauma. To hold otherwise would belie the very intent of the CVA, which was to permit victims additional time to bring their offenders to justice.

Accordingly, this Court holds that the executive orders issued prior to the enactment of the CVA amendment apply to toll the two-year revival window for the time the executive orders were in effect. In conjunction with the executive orders issued subsequent to the CVA amendment’s enactment, which this Court has recently held to be applicable, all of these executive orders impose an aggregate 228-day toll on the closing of the CVA revival window, making March 30, 2022, the latest date by which to commence a CVA action … . Finley v Diocese of Brooklyn, 2026 NY Slip Op 01183, Second Dept 3-4-26

 

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PURSUANT TO THE RES IPSA LOQUITUR DOCTRINE, THERE IS A QUESTION OF FACT WHETHER EPIDURAL INJECTIONS WERE DONE NEGLIGENTLY; THE FACT THAT PLAINTIFF SIGNED A CONSENT FORM WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT ON THE LACK OF INFORMED CONSENT CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motions for summary judgment in this medical malpractice and lack of informed consent action should not have been granted. The plaintiff raised a question of fact re: medical malpractice under the res ipsa loquitur doctrine. And the fact that plaintiff signed a consent form was not sufficient to warrant summary judgment on the lack of informed consent cause of action:

… [T]he doctrine of res ipsa loquitur was applicable to raise a triable issue of fact as to whether the defendants negligently administered the epidural injections. “To raise a triable issue of fact as to the applicability of that doctrine, a plaintiff must show that ‘(1) the event is of the kind that ordinarily does not occur in the absence of someone’s negligence; (2) the instrumentality that caused the injury is within the defendants’ exclusive control; and (3) the injury is not the result of any voluntary action by the plaintiff'” … . Here, the plaintiff raised a triable issue of fact as to whether his injury was of a kind that ordinarily does not occur in the absence of negligence, as Weingarten opined that the plaintiff would not have developed an MSSA infection if the defendants had adhered to the proper performance of “sterile techniques” in accordance with the applicable standards of care … . * * *

“‘To establish a cause of action to recover damages based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury'” … . “The fact that a plaintiff signed a consent form, standing alone, does not establish a defendant’s prima facie entitlement to judgment as a matter of law” … . Here, the defendants’ submissions failed to establish, prima facie, that the plaintiff was adequately informed of the reasonably foreseeable risks of the epidural injections … . Phillips v Varma, 2026 NY Slip Op 01238, Second Dept 3-4-26

Practice Point: Consult this decision for insight into the application of the res ipsa loquitur doctrine to medical malpractice.

Practice Point: Plaintiff’s signing a consent form alone does not warrant granting a defendant’s motion for summary judgment on a “lack of informed consent” cause of action.

 

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HERE THE “PRIMARY JURISDICTION DOCTRINE” DID NOT APPLY TO REQUIRE A STAY TO ALLOW THE PUBLIC SERVICE COMMISSION (PSC) TO DETERMINE WHETHER “STRAY VOLTAGE” WAS CAUSING INJURY TO PLAINTIFF’S CATTLE AND, IF SO, HOW BEST TO MITIGATE OR REMEDIATE; THE PSC HAS NO SPECIAL EXPERTISE REGARDING THE EFFECTS OF STRAY VOLTAGE ON CATTLE; THE ISSUES ARE BEST HANDLED BY A COURT, DESPITE THE COMPETING EXPERT OPINIONS (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Garry, determined the “primary jurisdiction doctrine” did not require that the civil action be stayed to allow the Public Service Commission (PSC) to determine whether “stray voltage” was harming plaintiff’s cattle and, if so, how the problem can be mitigated or remediated. Plaintiff, a cattle farmer, sued defendant electric company (which services the farm) alleging that “stray voltage” has caused “behavioral changes [in the cattle], decreased milk production, fertility issues and other health problems.” The Third Department held that the Public Service Commission was not better suited to deal with the issues presented by “stray voltage” than the court:

Assuming, without deciding, that the regulatory scheme is an appropriate means to address some of the issues underlying these tort claims … , compliance with regulatory standards is not dispositive as to due care … . Upon a stay and referral, the PSC [Public Service Commission] would have only the authority to determine whether defendant is presently operating in compliance with its administrative standards, which set forth minimum, generalized safety requirements. As PSC asserts and as evidenced by the opinions and reports of plaintiffs’ experts, the duty of care with respect to stray voltage on dairy farms may be quite different from this regulatory floor. The PSC also admittedly has no expertise in the impact of stray voltage on cattle and has advised that it would be necessary to seek out the opinion(s) of its own experts if tasked with evaluating whether any stray voltage here is “harmful” or merits mitigation beyond the aforementioned standards. * * *

As plaintiffs argue, the claims at issue, which do not arise from the PSC’s rules, regulations or policies, are common-law tort claims, requiring determinations as to familiar concepts such as duty and causation, and are inherently judicial … . As with other complicated areas of tort, the necessary expertise is initially supplied by the parties’ experts. To the extent that the divergence between those experts on scientific principles may necessitate additional guidance, Supreme Court possesses the authority to utilize a referee or court-appointed neutral expert to aid in the review of complex litigation where appropriate (see CPLR 4001, 4212 …). In sum, although the PSC’s opinion as to the existence, origin or degree of stray voltage may be informative, resolution of plaintiffs’ claims do not first require resolution of issues placed within the agency’s special competence. Frasier v Niagara Mohawk Power Corp., 2026 NY Slip Op 01110, Third Dept 2-26-26

Practice Point: Consult this opinion for insight into when the “primary jurisdiction doctrine” should be applied to stay a court proceeding to allow an agency to investigate and offer guidance on the underlying issues. Here the Third Department held that the Public Service Commission did not have expertise on the issues underlying the trial, so the “primary jurisdiction doctrine” did not require that the civil action be stayed pending a PSC investigation.

 

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HERE THE SCHOOL DISTRICT HAD ACTUAL KNOWLEDGE OF THE NATURE OF EACH NEGLIGENT-SUPERVISION CLAIM WITHIN 90 DAYS OF THE INCIDENTS; WHERE A SCHOOL HAS TIMELY ACTUAL KNOWLEDGE OF THE FACTS UNDERLYING A CLAIM, THE ABSENCE OF AN ADEQUATE EXCUSE FOR FAILING TO TIMELY FILE A NOTICE OF CLAIM IS NOT A BAR TO GRANTING LEAVE TO FILE A LATE NOTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim against defendant school district should been granted. The petition alleged negligent supervision a student who was assaulted, harassed, and bullied on specific occasions. There were contemporaneous incident reports. The school district, therefore, had knowledge of the nature of the claims within 90 days of each incident:

… [T]he petitioner established that the School District had actual knowledge of the essential facts constituting the claim within 90 days of each incident included in the notice of claim. The petitioner submitted, among other things, incident reports and documentation of investigations conducted by the School District within days of the incidents … , police reports that documented communications and an investigation by school officials … , an electronic communication between the petitioner and a school official … , and an “[a]ction [p]lan” created pursuant to a meeting between the petitioner and school officials where the alleged wrongful conduct and the plans to monitor the students and address the conduct were discussed … .

As the petitioner demonstrated that the School District acquired timely knowledge of the essential facts constituting the claim, the petitioner met her initial burden of showing that the School District would not be prejudiced by the late notice of claim … . In opposition to the petitioner’s initial showing, the School District failed to come forward with particularized evidence showing that the late notice had substantially prejudiced its ability to defend the claim on the merits … .

Although the petitioner failed to demonstrate a reasonable excuse for her failure to timely serve the notice of claim, “where, as here, there is actual knowledge and an absence of prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of claim” … . Matter of Polito v North Babylon Sch. Dist., 2026 NY Slip Op 01067, Second Dept 2-25-26

Practice Point: In the context of a petition for leave to file a late notice of claim against a school district, the absence of a reasonable excuse for timely filing the claim may be overlooked where it is demonstrated the school had timely knowledge of the facts underlying the claims.

 

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A POLICE CAR RESPONDING AN EMERGENCY CALL SWERVED INTO A TURN LANE TO PASS A CAR AND STRUCK A SKATEBOARDER; THERE WERE QUESTIONS OF FACT WHETHER THE OFFICER ACTED WITH “RECKLESS DISREGARD FOR THE SAFETY OF OTHERS” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined (1) the “reckless disregard” standard for liability applied to this accident involving a police car and a skateboarder, and (2) the county defendants did not eliminate all questions of fact about whether the “reckless disregard” standard was met. The officer was responding a call from a woman in labor with complications. The officer struck the skateboarder, who was in a turn lane, when the officer swerved into the turn lane to pass a car:

The “reckless disregard” standard demands more than a showing of a lack of “due care under the circumstances” … . “It requires evidence that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome” … . “This standard requires a showing of more than a momentary lapse in judgment” … .

Here, the defendants established that the reckless disregard standard of Vehicle and Traffic Law § 1104 was applicable to Degere’s [the officer’s] conduct because he was responding to a radio call of a woman going into labor with complications … . However, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint because their moving papers failed to eliminate all issues of material fact regarding whether Degere acted recklessly by either traveling at a high speed in the center turn lane in a school zone with poor lighting conditions or abruptly merging into the center turn lane without first looking to his left or activating his turn signal … . Moccasin v Suffolk County, 2026 NY Slip Op 01049, Second Dept 2-25-26

Practice Point: Consult this decision for insight into what constitutes “reckless disregard for the safety of others” within the meaning of Vehicle and Traffic Law 1104 in the context of a police officer responding to an emergency call.

 

THE HOTEL, IN RESPONSE TO A REQUEST FROM FAMILY MEMBERS, ASSUMED A DUTY TO CHECK ON A GUEST WHO HAD THREATENED SUICIDE; THE HOTEL FULFILLED THAT DUTY; THE HOTEL, HOWEVER, DID NOT ASSUME A DUTY TO IMMEDIATELY CALL FOR EMERGENCY ASSISTANCE; THE HOTEL WAS NOT LIABLE FOR THE GUEST’S SUICIDE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over an extensive dissenting opinion, determined the defendant hotel, after a request from a guest’s family, had assumed a duty to check on the guest who had threatened suicide in text messages to family members. The hotel fulfilled the assumed duty to check on the guest. However the hotel did not assume a duty to immediately call for emergency assistance after a subsequent request from the family. The hotel, sometime after the family’s request, did procure emergency assistance. The guest was on the window ledge when police officers entered his room. He jumped from the ledge:

Plaintiffs concede that defendants did not have an underlying legal duty to prevent decedent, a hotel guest, from taking his own life. It is undisputed that defendants, as the owner and operator of the premises, are not insurers of a visitor’s safety. Rather, plaintiffs’ theory of liability is one of assumed duty. “[E]ven when no original duty is owed to the plaintiff to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care” … . …

… [T]o be held liable under an assumed duty theory, it is not enough that defendants undertook to perform a service and did so negligently, but their “conduct in undertaking the service [must have] somehow placed [decedent] in a more vulnerable position than he would have been in had [defendants] never taken any action at all” … . * * *

Recognizing an assumed duty in these circumstances would create a specter of liability that discourages rather than encourages hotels from offering assistance to guests contemplating suicide. Because hotels owe no inherent duty to provide such aid, the most rational and likely way for them to avoid liability would be to implement formal policies against their employees involving themselves in efforts to render potentially life-saving aid to guests. In keeping with the State’s “interest[] in preserving life and preventing suicide” … , the better rule is one that incentivizes both hotels and concerned parties to do all they reasonably can in these difficult and emotionally charged situations. Beadell v Eros Mgt. Realty LLC, 2026 NY Slip Op 00962, CtApp 2-19-26

Practice Point: Consult this opinion for an explanation of the circumstances under which a party which does not ordinarily owe a duty of care to another party can “assume” a duty of care in response to a request.

 

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