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SELF-SERVING STATEMENTS OF AN INTERESTED PARTY (THE PLAINTIFF IN THIS SLIP AND FALL CASE) WHICH REFERRED TO MATTERS EXCLUSIVELY WITHIN THAT PARTY’S KNOWLEDGE CREATED AN ISSUE OF CREDIBILITY PRECLUDING SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined inconsistencies in plaintiff’s deposition testimony as well as the fact he was the only witness to the incident raised credibility issues which precluded summary judgment:

Here, the plaintiff failed to demonstrate his prima facie entitlement to judgment as a matter of law on the issue of liability. His deposition testimony, which included inconsistencies regarding the location of the alleged accident and was generally vague, in addition to a lack of other supporting evidence, placed his own credibility in issue and presented triable issues of fact regarding how the alleged accident occurred … . The plaintiff also testified at his deposition that he was the only witness to the alleged accident, which further raised credibility issues, since “[o]n a motion for summary judgment . . . , self-serving statements of an interested party which refer to matters exclusively within that party’s knowledge create an issue of credibility which should not be decided by the court but should be left for the trier of facts” … . Espinal v 1760-1770, LLC, 2026 NY Slip Op 04926, Second Dept 8-12-26

Practice Point: On a summary judgment motion, statements by an interested party which refer to matters exclusively within that party’s knowledge can create a credibility issue which precludes summary judgment.

 

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DEFENDANTS’ RELIANCE ON THEIR ATTORNEY’S STATEMENT HE WOULD HANDLE THE MATTER, THE FACT THAT THE SEVERELY INJURED INFANT PLAINTIFF, FOR WHOM DEFENDANTS WERE CARING, REQUIRED EXTRAORDINARY MEDICAL CARE AND FUNDRAISING, AND THE EXISTENCE OF A MERITORIOUS DEFENSE, WARRANTED GRANTING THE MOTION TO VACATE THE DEFAULT JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion to vacate the default judgment (CPLR 5015(a)(1)) should have been granted. Defendants were under the impression their attorney was handling the case, they had a valid reason for failing to be more proactive in dealing with their attorney, and they had a meritorious affirmative defense:

Here, the defendants claimed that, upon receiving notice of the action in August 2023, they each contacted their family attorney, with whom the grandmother and the family had an 18-year relationship, and who was representing the mother in a child support proceeding against the plaintiff. The family attorney agreed to handle this matter. In a series of text messages to the defendants, the family attorney gave the impression that he was handling the matter and again indicated that such was the case when he met the defendants in person in reference to the child support proceeding. …

During these proceedings, the defendants were caring for the infant, who had suffered a brain injury and had been in the intensive care unit for approximately two months and required machines to help her breathe. The infant’s care involved hyberbaric and stem cell treatments from doctors in Louisiana and Arizona and fundraising to pay for her care.

The defendants each hired their current attorneys and promptly moved to vacate the March 2024 [default] order, alleging that the defendants’ reliance upon the representations of the family attorney constituted a reasonable excuse for their default and further alleging … an affirmative defense … .

… [U]nder the particular circumstances of this case, the defendants’ conduct in relying upon the representations of the family attorney did not constitute willful default or neglect … . Further, the defendants’ responsibilities in caring for the infant provided a reasonable explanation for their failure to be more proactive in their dealings with the family attorney and in the management of this action … . Cross v Lee, 2026 NY Slip Op 04924, Second Dept 8-12-26

Practice Point: Here defendants’ reliance on their attorney’s assurances he was handling the matter, the severity of the infant plaintiff’s injuries (the defendants were caring for the infant), and the existence of a meritorious defense, warranted granting defendants’ motion to vacate the default judgment (CPLR 5051(a)(1)).

 

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PLAINTIFF’S MOTION TO AMEND THE COMPLAINT TO ADD A CORPORATE DEFENDANT ALLEGED TO BE “UNITED IN INTEREST” WITH A NAMED CORPORATE DEFENDANT SHOULD HAVE BEEN GRANTED; ALTHOUGH THE STATUTE OF LIMITATIONS HAD PASSED, THE RELATION-BACK DOCTRINE APPLIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the relation-back doctrine applied to allow adding a defendant after the statute of limitations had run. Plaintiff slipped and fell on some wires in her office and sued a company called Blackbox Corporation (apparently alleging responsibility for the presence of wires). Plaintiff sought to amend the complaint to add another company, Nu-Vision, alleging it was “united in interest” with Blackbox:

In order to establish the applicability of the relation-back doctrine, a plaintiff must demonstrate that: “(1) the causes of action arose out of the same conduct, transaction, or occurrence; (2) the new party is united in interest with one or more of the original defendants, and by reason of that relationship can be charged with such notice of the institution of the action that he or she will not be prejudiced in maintaining his or her defense on the merits; and (3) the new defendant knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been commenced against him or her as well” … .. “The ‘linchpin’ of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period” … .

Contrary to the Supreme Court’s determination, the plaintiff demonstrated the applicability of the relation-back doctrine. As to the first prong, there is no dispute that the plaintiff sought to allege causes of action against Nu-Vision arising out of the same occurrence as the causes of action asserted in the amended complaint. The plaintiff also established the second prong, that Nu-Vision and Black Box Corporation of Pennsylvania were “united in interest,” by demonstrating that, under the particular circumstances presented, Nu-Vision and Black Box Corporation of Pennsylvania “intentionally or not, often blurred the distinction between them” … . As to the third prong, the plaintiff sufficiently established that Nu-Vision knew or should have known that, but for a mistake, it would have been named as a defendant … .   Tomlinson v City of New York, 2026 NY Slip Op 04973, Second Dept 8-12-26

Practice Point: Here plaintiff was allowed to amend the complaint to add a corporate defendant after the statute of limitations had passed pursuant to the relation-back doctrine. The added defendant was deemed to be “united in interest” with a named corporate defendant.

 

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IN THIS PUBLIC-BEACH SWIMMING-ACCIDENT CASE, THE PETITIONER SHOULD NOT HAVE BEEN GRANTED PERMISSION TO FILE A LATE NOTICE OF CLAIM; THE TOWN DID NOT HAVE TIMELY KNOWLEDGE OF THE ESSENTIAL FACTS OF THE CLAIM; THE PETITIONER DID NOT HAVE A GOOD EXCUSE; THE TOWN MADE A PARTICULARIZED SHOWING OF PREJUDICE; AND THE CLAIM WAS CLOSE TO MERITLESS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition to serve a late notice of claim against the town in this swimming-injury case should not have been granted. Petitioner was floating 100 yards beyond the designated swimming area at a town beach with the back of his head toward the ocean when a wave crashed over him, forcing him to the ocean floor and causing a severe spinal cord injury. The Second Department went through all the criteria for allowing late notice and found that the facts fell short:

… [T]he petitioner failed to establish that the Town had actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter. “‘[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'” … . “Generally, the phrase ‘facts constituting the claim’ is understood to mean the facts which demonstrate a connection between the happening of the accident and any negligence on the part of the public corporation” … . * * *

… [I]n light of the fact that members of his family appeared to be considering the making of a claim when they returned to the accident scene one week after the accident and interviewed lifeguards, the petitioner failed to demonstrate a reasonable excuse for failing to serve a timely notice of claim, or for failing to serve a notice of claim until 67 days after meeting with attorneys … . * * *

… [T]he Town made a “particularized evidentiary showing that [it] will be substantially prejudiced if the late notice is allowed” … . The Town submitted, among other things, an affirmation of its lifeguard captain, who stated that he spoke to the petitioner and his companions immediately after the accident and recalled the petitioner telling him that the petitioner had consumed alcohol, but he no longer recalled what the petitioner said about his alcohol use or other details about the accident. * * *

… [T]he petitioner’s claim that the lifeguards had a duty to warn him that he was beyond the designating swimming area and to warn him that it was dangerous to float with his back to the ocean borders on being patently meritless … . Matter of Cataldo v Town of E. Hampton, 2026 NY Slip Op 04946, Second Dept 8-12-26

Practice Point: Consult this decision for a concise factual explanation for the denial of permission to file a late notice of claim.

 

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THERE WAS NO EVIDENCE DR. VELASQUEZ WAS NEGLIGENT; HIS SUMMARY JUDGMENT MOTION IN THE MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED; THE OPINION IS FACT-SPECIFIC AND DETAILED (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Mendez, determined this medical malpractice action against one of the defendants, Dr. Velasquez, should have been dismissed. The opinion is fact-specific and goes through the evidence in granular detail. Roth v Velasquez, 2026 NY Slip Op 04915, First Dept 8-6-26

 

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IN THIS CEILING-COLLAPSE CASE, THE NEGLIGENCE PER SE CAUSE OF ACTION BASED ON THE MULTIPLE DWELLING LAW AND THE RES IPSA LOQUITUR CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the cause of action alleging negligence per se and the res ipsa loquitur cause of action in this ceiling-collapse case should have been dismissed. The negligence per se cause of action alleged a violation of Multiple Dwelling Las section 78(1) which does not impose a specific duty on the landlord. The res ipsa loquitur cause of action failed, in part, because the landlord did not have exclusive control of the plaintiff’s bathroom and the leaking bathtub in the apartment above:

A cause of action alleging negligence per se predicated on a violation of Multiple Dwelling Law § 78(1) cannot lie, as the statute imposes only a general duty to maintain a multiple dwelling and does not impose a specific duty upon a landlord … .

“The doctrine of res ipsa loquitur is a rule of evidence that permits an inference of negligence to be drawn solely from the happening of an accident where the plaintiff can 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 defendant’s exclusive control; and (3) the injury is not the result of any voluntary action by the plaintiff” … . Here, the plaintiff failed to establish that her bathroom ceiling and a bathtub in an upstairs apartment were within the defendants’ exclusive control … . The plaintiff also failed to eliminate triable issues of fact as to her comparative fault, as she entered the bathroom to scrub the bathtub despite being concerned about the imminent collapse of the ceiling before it fell … . Williams v SI 1688 Realty, LLC, 2026 NY Slip Op 04896, Second Dept 8-5-26

Practice Point: Multiple Dwelling Law 78(1) imposes a general duty to maintain a multiple dwelling but does not impose a specific duty upon a landlord. Therefore it could not be the basis of a negligence per se cause of action against the landlord in this ceiling-collapse case.

Practice Point: The res ipsa loquitur cause of action did not lie in this ceiling collapse case because the landlord did not have exclusive control over the bathroom where the ceiling fell or the leaking bathtub in the apartment above.

 

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THERE WAS A QUESTION OF FACT WHETHER THE CONSTRUCTION MANAGER WAS AN AGENT FOR THE GENERAL CONTRACTOR AND THEREFORE COULD BE LIABLE FOR A DANGEROUS CONDITION AT THE WORK SITE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the defendants” (Petrocelli’s) motion for summary judgment in this case stemming from an injury at a construction site. Petrocelli was the construction manager. There was a question of fact whether Petrocelli could be deemed an agent of the general contractor such that it could be liable for a dangerous condition at the site:

While a construction manager is generally not considered a contractor responsible for the safety of the workers at a construction site pursuant to Labor Law § 200, “it may nonetheless become responsible if it has been delegated the authority and duties of a general contractor, or if it functions as an agent of the owner of the premises” … . “A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured” … . A role of general supervision “is insufficient to impose liability under the Labor Law” … .

Here, the Petrocelli defendants failed to establish, prima facie, that they did not exercise a significant degree of control and supervision of the construction site such that it was not delegated the authority and duties of a general contractor … , and failed to establish that they lacked constructive notice of the allegedly dangerous condition because they did not submit any evidence to demonstrate that the “dangerous condition did not exist for a sufficient length of time to afford [them] a reasonable opportunity to discover and remedy it” … . Vasquez v 1719 27 ST, LLC, 2026 NY Slip Op 04894, Second Dept 8-5-26

Practice Point: If a construction manager acts as an agent for the general contractor and therefore exercises supervisory control over a work site, the construction manager may be liable for a dangerous condition at the work site.​

 

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THE SOLE PROXIMATE CAUSE OF DEFENDANT DRIVER’S STRIKING A 12-YEAR-OLD PEDESTRIAN WAS THE PEDESTRIAN’S SUDDENLY RUNNING ONTO THE HIGHWAY (FIRST DEPT).

The First Department, reversing Supreme Court, determined this traffic-accident action stemming from defendant’s striking a 12-year-old pedestrian (J.W.) should have been dismissed. J.W. suddenly ran into defendant driver’s (Li’s) highway lane:

Li testified that he was driving south in the right lane of the Hutchinson River Parkway in the Bronx at about 45 miles per hour when he first saw J.W. standing 100 feet in front of him in a grassy area on the side of the highway to his right. Li testified that when the vehicle approached, J.W. made a “running gesture” and began to run towards the vehicle when it was approximately two car lengths away. Li did not brake or honk his horn, but did take his foot off the gas pedal and was in the process of moving into the left lane to move away from J.W. when J.W. entered the highway, at which point the front right side of the van struck him. Police conducted sobriety tests at the scene and allowed Li to drive the van from the scene. He did not receive a ticket, violation, or citation as a result of the collision. It is undisputed that pedestrians are prohibited from occupying the location where J.W. was traversing (Vehicle and Traffic Law § 1229-a).

Defendants established prima facie that J.W.’s act of running into the highway unlawfully was the sole proximate cause of the collision … . Li’s testimony shows that he was confronted with a sudden and unforeseen situation in which he was forced to make a split second decision and could not “weigh alternative courses of action” such that “he cannot reasonably be held to the same conduct as one who has had full opportunity to reflect” … . “While it is often a jury question whether a person’s reaction to an emergency was reasonable, summary resolution is possible when the individual presents sufficient evidence to support the reasonableness of his or her actions and there is no opposing evidentiary showing sufficient to raise a legitimate question of fact on the issue” … . Danielle W. v Li, 2026 NY Slip Op 04821, First Dept 7-30-26

 

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PLAINTIFFS PROPERLY ALLOWED TO AMEND THE COMPLAINT TO ADD THE INSURER (WHICH PAID PLAINTIFFS FOR THEIR LOSSES) AS A PLAINTIFF UNDER THE RELATION-BACK DOCTRINE (AFTER THE STATUTE OF LIMITATIONS HAD RUN FOR AN INDEPENDENT SUBROGATION ACTION) (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Friedman, determined Supreme Court properly allowed plaintiffs to amend the complaint to add the insurer which paid plaintiffs’ losses as a plaintiff. The statute of limitations had passed for a separate subrogation action:

While an application to amend a pleading pursuant to CPLR 3025 lies within the court’s sound discretion, “there is no sound basis in law to grant amendment pursuant to CPLR 3025(c) to add an untimely claim” … . Thus, a pleading cannot be amended to assert a new claim for which the statute of limitations has expired unless the assertion of the new claim is deemed to relate back to an earlier operative pleading that was filed while the new claim still would have been timely (see id.). Whether a new claim relates back to the time of the filing of the earlier pleading is governed by CPLR 203(f), which provides:

“A claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.”

In determining whether the original pleading provides the requisite notice of the transactions or occurrences underlying the proposed new claim, a court “should not . . . look[] beyond the four corners of the original pleading” … . * * *

… [T]he “transactions, occurrences, or series of transactions or occurrences” referenced in CPLR 203(f), and to be proved in support of the subrogation claim interposed in the proposed [amended complaint] — defendants’ management of the renovation project — are precisely the same “transactions, occurrences, or series of transactions or occurrences” alleged in the earlier complaints. As plaintiffs point out, the only effect of the assertion of the subrogation claim is to shift the claim for a portion of the damages allegedly caused by defendants’ alleged wrongdoing from the … plaintiffs to … their insurer. 217 Trust v VIR Constr., Inc, 2026 NY Slip Op 04824, First Dept 7-30-26

Practice Point: Here plaintiffs’ insurer, which paid plaintiffs for losses which are the subject of the complaint, was properly added to the complaint as a plaintiff, after the statute of limitations for a separate subrogation action had passed, pursuant to the relation-back doctrine.

 

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THE STATE’S SNOWPLOW DRIVER WAS NOT DRIVING ON A PLOW ROUTE WHEN HE MADE AN ILLEGAL RIGHT TURN AND STRUCK PLAINTIFF’S CAR; THE VEHICLE AND TRAFFIC LAW 1103(B) “RECKLESS DISREGARD” STANDARD, THEREFORE, DID NOT APPLY; CLAIMANT’S CLAIM SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined the State’s snowplow driver was not engaged in work on the highway when it made an illegal right turn on a city street, striking claimant’s car. Therefore the “reckless disregard” negligence standard in Vehicle and Traffic Law 1103(b) was not applicable. The Fourth Department granted the claim and sent the action back for a trial on damages only:

Here, the evidence at trial established that the snowplow driver’s route consisted of a series of exits on I-190 in Buffalo, including the on-ramps and off-ramps, and that he would routinely travel on city streets, including the street on which the accident occurred, to access the next ramp on his route. Inasmuch as the testimony reflects that the snowplow driver did not have the authority to plow or salt city streets such as the one where the accident occurred, we conclude that, at the time of the accident, he “was not driving on part of his plow route but instead was traveling from one part of his route to another by way of a [municipal] road that he was not responsible for plowing” … .

Inasmuch as the snowplow driver admitted that he was aware that he was not permitted to make a right turn against a red light at the subject intersection, admitted that he was aware that other drivers treated that portion of road as having two northbound lanes, and nonetheless elected to make an illegal right turn on red from the left-hand lane, we conclude that the evidence established that the snowplow driver was negligent … . We further conclude that claimant was not contributorily negligent inasmuch as he was lawfully on the roadway and stopped at a red light when struck … . Bushley v New York State Thruway Auth., 2026 NY Slip Op 04686, Fourth Dept 7-24-26

Practice Point: Here the State’s snowplow driver was not driving on a plow route when he made an illegal right turn and struck plaintiff’s car. The “reckless disregard” standard, which would have applied if the snowplow were engaged in work on a plow route, did not apply. Ordinary negligence is the applicable standard.

 

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