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THE FEDERAL “ENDING FORCED ARBITRATION OF SEXUAL ASSAULT AND SEXUAL HARASSMENT ACT (EFAA)” PRECLUDED THE ENFORCEMENT OF A MANDATORY ARBITRATION CLAUSE IN A CONTRACT BETWEEN PLAINTIFF COLLEGE STUDENT AND HER SORORITY; THEREFORE PLAINTIFF COULD SUE THE SORORITY IN NEGLIGENCE FOR COMPELLING HER TO ATTEND A MIXER WHERE SHE WAS SEXUALLY ASSAULTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court in a matter of first impression, in a full-fledged opinion by Justice Landicino, determined that the federal “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act” (EFAA) precluded arbitration in a negligence suit by a college student against her sorority. Plaintiff-student alleged she was compelled by her sorority to attend a mixer with a fraternity where she was sexually assaulted. The contract between plaintiff and the sorority included a mandatory arbitration clause:

This case presents an issue of first impression for this Court: whether the …. EFAA … can serve to prevent arbitration, notwithstanding an arbitration clause in a contract between the parties, of an action sounding in negligence against a party that did not commit the alleged sexual assault. We hold that it can, under the circumstances presented here.

… According to the complaint, the plaintiff attended SUNY Cortland and was a member of the [defendant] sorority … .. … [A] fraternity chapter, Pi Kappa Phi … , allegedly held a mixer event off campus … . According to the complaint, the plaintiff, as a member of the sorority, was “expected and obligated by [the] sorority to attend the mandatory mixer event to be hosted by the fraternity.” The fraternity purportedly provided alcohol and other intoxicating substances to the attendees at the mixer event, which caused the plaintiff to become impaired. Allegedly, while attending the mixer event, the plaintiff met a member of the fraternity (hereinafter the alleged abuser) who took the plaintiff to a nearby premises where he sexually assaulted her. * * *

The issue raised on this appeal is whether the plaintiff may invoke the EFAA to prevent arbitration of her claims where the sorority did not commit the alleged sexual assault. The plaintiff’s cause of action in this matter does not sound in sexual assault. Rather, the cause of action sounds in negligence based on the alleged failure of the sorority to supervise and protect its members at a function that the members were required to attend, which exposed the plaintiff to the sexual assault. The question is whether the EFAA can bar arbitration of a complaint sounding in negligence only. * * *

… [A]lthough the sorority contends that the plaintiff’s cause of action sounds in negligence as opposed to sexual assault, that distinction is immaterial here. The negligence cause of action is “related” to the sexual assault dispute alleged in the complaint, which is all that is required under the EFAA … . While the sorority is a third party that was not directly involved in the sexual assault, the negligence claim is nonetheless “related” to the sexual assault dispute inasmuch as the plaintiff contends that the sorority placed her in a dangerous circumstance that led to the sexual assault. There is a clear logical nexus between the cause of action alleged in the complaint and the alleged sexual assault, which places this matter squarely within the ambit of the EFAA. C.N. v Sigma Delta Tau Socy., 2026 NY Slip Op 05405, Second Dept 9-23-26

Practice Point: Here plaintiff student sued her sorority in negligence for compelling her to attend a mixer with a fraternity where she was sexually assaulted. Plaintiff’s contract with the sorority included a mandatory arbitration clause. The federal “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act” (EFAA) applied to these facts to preclude enforcement of the arbitration clause.

 

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PETITIONER’S “PREOCCUPATION WITH HIS INJURIES, TREATMENT AND RECOVERY” WAS DEEMED A REASONABLE EXCUSE FOR FAILURE TO TIMELY FILE A NOTICE OF CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s request for leave to file a late notice of claim should have been granted. Petitioner fell onto the tracks at a subway station and was struck by a train. Evidence petitioner was “preoccupied with his injuries, treatment and recovery” constituted a reasonable excuse for the delay in filing the notice:

… [P]etitioner demonstrated that the respondents acquired actual knowledge of the essential facts constituting the claim within 90 days of the accident based on the respondents’ prompt and thorough investigation of the accident, which included interviews of the train operator and analysis regarding the speed of the train and when the train’s emergency brake was engaged … . Moreover, since the respondents acquired timely knowledge of the essential facts constituting the claim, the petitioner met his initial burden of showing that the respondents would not be prejudiced by the late notice of claim … . In response to the petitioner’s initial showing, the respondents failed to come forward with particularized evidence showing that the late notice substantially prejudiced their ability to defend the claim on the merits … .

Further, contrary to the respondents’ contention, the petitioner demonstrated a reasonable excuse for his delay in serving the notice of claim. “A petitioner may be able to establish a reasonable excuse for not timely serving a notice of claim based on an injury or medical condition, but only ‘through admissible medical evidence that he [or she] was incapacitated to such an extent that he [or she] could not have complied with the statutory requirement'” … . However, “even absent incapacitation, a reasonable excuse may be established by an allegation that a petitioner was more concerned and preoccupied with his or her alleged injuries . . . than with retaining counsel to pursue a legal claim, but only when such an allegation is supported by medical evidence” … . Here, the petitioner sufficiently established a reasonable excuse for his delay in serving a notice of claim based on his preoccupation with his injuries, treatment, and recovery, including the required amputation of his lower right leg, and his extended stay at a rehabilitation center as he relearned how to walk … . Matter of Nash v New York City Tr. Auth., 2026 NY Slip Op 05399, Second Dept 9-23-26

Practice Point: Here petitioner was struck by a subway train and his treatment included amputation of his lower right leg. Petitioner’s “preoccupation with his injuries, treatment and recovery” was deemed a reasonable excuse for failing to timely file a notice of claim.​

 

LENDING A KNIFE TO AN ACQUAINTANCE, WITHOUT INQUIRING AS TO ITS USE, DID NOT CREATE A DUTY OWED TO THE PERSON STABBED BY THE ACQUAINTANCE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the action against defendant store owners (F & S LLC) who gave defendant a knife which defendant used to stab the plaintiff should have been dismissed. The store owners did not owe a duty to plaintiff:

The plaintiff allegedly sustained personal injuries when the defendant William Volkes stabbed him with a knife. The incident allegedly occurred after the plaintiff attempted to retrieve his girlfriend’s cell phone from Volkes, with whom the plaintiff’s girlfriend was acquainted. After the plaintiff recovered the cell phone from Volkes, Volkes allegedly fled approximately one block to the defendant Frank and Sal, LLC (hereinafter F & S), a grocery market where he was a regular customer.

Once inside F & S, Volkes approached the deli section and allegedly asked an employee, who recognized Volkes, for a knife. Without inquiring into the purpose of Volkes’s request, but knowing him as a regular customer, the employee allegedly provided Volkes with a boning knife kept behind the deli counter. Volkes then allegedly exited F & S with the knife, returned to the plaintiff, and stabbed him. * * *

F & S established, prima facie, that it did not owe a duty to the plaintiff. F & S’s submissions established that it did not have sufficient authority and ability to control Volkes after he exited the premises and that it did not have a special relationship with the plaintiff … . In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted F & S’s motion for summary judgment dismissing the complaint insofar as asserted against it … . Torres v Frank & Sal, LLC, 2026 NY Slip Op 05340, Second Dept 9-16-26

Practice Point: Consult this decision for a rare discussion of a “duty” in the context of a negligence action. Here the defendants who gave an acquaintance a knife without inquiring as to its use did not owe a duty to the person stabbed by the acquaintance.​

 

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ALTHOUGH PLAINTIFF FELL DURING A SNOWSTORM, THE DEFENDANTS DID NOT DEMONSTRATE THE SLIPPERY CONDITION WAS NOT THE RESULT OF A PRIOR STORM; SUMMARY JUDGMENT PURSUANT TO THE STORM IN PROGRESS RULE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this ice and snow slip and fall case, determined defendants did demonstrate entitlement to summary judgment based on the storm in progress rule. Although defendants proved a snowstorm was in progress when plaintiff fell, they did not demonstrate the slippery condition was not the result of a prior storm:

“Under the storm in progress rule, ‘[a] property owner will not be held liable in negligence for a plaintiff’s injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter'” … .

Here, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint based on the storm in progress rule. Although the evidence submitted by the defendants in support of their motion established that a snowstorm was in progress at the time of the plaintiff’s fall, it failed to eliminate triable issues of fact as to whether the slippery condition upon which the plaintiff fell was the result of a prior storm, rather than the storm that was then in progress, and whether the defendants had constructive notice of the pre-existing condition … . Batista v Allerton Ave Estates, LLC, 2026 NY Slip Op 05265, Second Dept 9-16-26

Practice Point: Plaintiff fell during a snowstorm and Supreme Court granted summary judgment to defendants under the storm in progress rule. The Second Department reversed because the defendants did not demonstrate the slippery condition was not the result of a prior storm.

 

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IN THIS REAR-END COLLISION CASE, DEFENDANT’S AFFIRMATION THAT PLAINTIFF STOPPED IN THE HIGHWAY LANE FOR NO APPARENT REASON RAISED A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court in this rear-end collision case, determined defendant’s affirmation that plaintiff stopped for no apparent reason raised and question of fact:

… [T]he plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability through the submission of the plaintiff driver’s affidavit, in which he averred that his vehicle was struck in the rear by the defendants’ vehicle (see Vehicle and Traffic Law § 1129[a] …). However, an affirmation of the defendant driver, submitted in opposition to the motion, raised triable issues of fact as to whether the defendant driver had a nonnegligent explanation for the defendants’ vehicle striking the rear of the plaintiffs’ vehicle. According to the defendant driver, the plaintiff driver was solely at fault for causing the accident by making a sudden stop for no apparent reason in the middle of their lane of traffic on the highway … . Ramirez v Red Cloud Trucking, Inc., 2026 NY Slip Op 05332, Second Dept 9-16-26

Practice Point: In this rear-end collision case, defendant’s affirmation that plaintiff stopped in the highway lane for no apparent reason raised a question of fact whether there was a nonnegligent explanation for striking the back of plaintiff’s vehicle.

 

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THE DESTRUCTION OF VIDEO EVIDENCE OF THE SLIP AND FALL WARRANTED A SANCTION; HOWEVER, IT WAS AN ABUSE OF DISCRETION TO PRECLUDE THE DEFENSE FROM PRESENTING ANY EVIDENCE RE: LIABILITY; AN ADVERSE INFERENCE CHARGE WITH RESPECT TO THE VIDEO EVIDENCE IS AN APPROPRIATE SANCTION (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the appropriate sanction for the destruction of the video which depicted the slip and fall was an adverse inference charge with respect to the video evidence, not the preclusion of all defense evidence re: liability:

During discovery, the defendants produced a video that was one minute and seven seconds in length and which depicted the moments shortly after the plaintiff’s fall. The premises’s superintendent testified that he recorded the video on his cell phone from the building’s surveillance footage on the day of the incident. The portion of the surveillance video that the superintendent recorded does not capture the moment of the fall itself or any time prior to the fall. * * *

Supreme Court properly determined that an imposition of spoliation sanctions against the defendants was warranted, as the defendants had an obligation to preserve the subject surveillance videos and were at least negligent in failing to preserve them, and the destroyed evidence was relevant to the plaintiff’s claim … . However, the court improvidently exercised its discretion in precluding the defendants from presenting any testimony, evidence, or defense as to their liability at trial. Instead, under the circumstances, the court should have directed that an adverse inference charge be given against the defendants at trial with respect to the video surveillance footage of the incident … . Alvarez v 100-10 67th Rd. Condominium, 2026 NY Slip Op 05261, Second Dept 9-16-26

Practice Point: Here video evidence of the slip and fall was destroyed warranting a sanction. Preclusion of all defense evidence re: liability was an abuse of discretion. An adverse inference jury instruction was appropriate.

Similar issues and results in Houghton v Piperaro, 2026 NY Slip Op 05290, Second Dept 9-16-26.

 

 

 

 

 

 

 

 

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PURSUANT TO GENERAL MUNICIPAL LAW 50-H, IT WAS THE MUNICIPALITY’S, NOT THE CLAIMANT’S, OBLIGATION TO RESCHEDULE THE 50-H EXAMINATION AFTER CLAIMANT’S COUNSEL WITHDREW; THEREFORE THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED BASED ON CLAIMANT’S FAILURE TO APPEAR AT THE EXAMINATION (SECOND DEPT). ​

The Second Department, reversing Supreme Court on an issue first raised on appeal, determined claimant’s failure to appear at an oral examination pursuant to General Municipal Law section 50-h did not warrant dismissal of the complaint. The scheduled examination did not take place because claimant’s counsel withdrew. Pursuant to the statute, it was the municipality’s, not the claimant’s, obligation to reschedule the examination:

Although [plaintiff’s] contention is raised for the first time on appeal, we reach the contention because it presents a pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture … .

“‘The purpose of General Municipal Law § 50-h is to enable a municipality to make a prompt investigation of the circumstances of a claim by examining the claimant about the facts of the claim'” … . “The oral examination of a claimant pursuant to General Municipal Law § 50-h serves to supplement the notice of claim and provides an investigatory tool to the municipality, with a view toward settlement” … . Generally, such examination must be conducted within 90 days of the service of the demand (see General Municipal Law § 50-h[5]). “‘Compliance with a demand for an oral examination pursuant to General Municipal Law § 50-h and Public Housing Law § 157(2) is a condition precedent to the commencement of an action against the defendant New York City Housing Authority'” … , and a plaintiff’s failure to so comply warrants dismissal of the action … .

However, pursuant to General Municipal Law § 50-h(5), “[i]f the claimant requests an adjournment or postponement beyond the ninety day period, the [municipality] shall reschedule the [examination] for the earliest possible date available.” Thus, “[w]hen . . . the [examination] has been postponed indefinitely beyond 90 days after service of the demand and the municipality does not reschedule the [examination], a plaintiff’s failure to appear for a[n examination] will not warrant dismissal of the complaint” … . Jones v New York City Hous. Auth., 2026 NY Slip Op 05293, Second Dept 9-16-26

Practice Point: Pursuant to General Municipal Law 50-h, if a claimant requests an adjournment or a postponement of a 50-h examination, it is the municipality’s, not the claimant’s, obligation to reschedule.

 

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HERE IN THIS BUS-TRAFFIC-ACCIDENT CASE, THE DEFENDANTS ADMITTED THE BUS DRIVER WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT; A NEGLIGENT-HIRING-AND-RETENTION CAUSE OF ACTION, THEREFORE, WAS NOT AVAILABLE TO THE PLAINTIFFS; THE PLAINTIFFS WERE NOT ENTITLED TO DISCOVERY OF THE DRIVER’S PERSONNEL FILE OR THE POLICY MANUAL FOR DRIVER RETENTION AND TRAINING BECAUSE BECAUSE THOSE DOCUMENTS WERE NOT RELEVANT TO THE EMPLOYER’S LIABILITY UNDER RESPONDEAT SUPERIOR (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this bus-traffic-accident case, determined that neither the bus driver’s personnel file nor the policy manual relating to the retention and training of the bus driver were discoverable. Those records would only be relevant to an action for negligent hiring and retention, which (generally) is not available when the suit against the driver’s employer is based upon respondeat superior:

Generally, “where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior, and a plaintiff may not proceed with a cause of action to recover damages for negligent hiring and retention” … . Thus, since here, the defendants admit that [the driver] was acting within the scope of his employment at the time of the accident, neither his personnel file nor the portions of the defendants’ policy manual relating to the retention or training of [the driver] are discoverable … . In addition, the plaintiff failed to show that any alleged remaining portions of the policy manual “would yield matter material and necessary to the prosecution or defense of the action” … . Lewis v New York City Tr. Auth., 2026 NY Slip Op 05175, Second Dept 9-2-26

​Practice Point: Where the employer admits the employee was acting within the scope of his employment at the time of the accident, the employer is liable for the negligence of the employee under a theory of respondeat superior. Generally, in that circumstance a negligent hiring and retention cause of action is not available to the plaintiff.

 

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HERE THE MEDICAL RECORDS SUGGESTED INJURY ATTRIBUTABLE TO MEDICAL MALPRACTICE SO THE HOSPITAL WAS DEEMED TO HAVE HAD TIMELY NOTICE OF THE NATURE OF THE MALPRACTICE CLAIM; PLAINTIFF’S MOTION TO DEEM THE LATE NOTICE OF CLAIM TIMELY SERVED NUNC PRO TUNC SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to deem the late notice of claim timely served nunc pro tunc should have been granted in this medical malpractice action:

On August 31, 2015, the plaintiff, Estefani Tenezaca, gave birth to the infant A.J.L. (hereinafter the infant) at Elmhurst Hospital Center (hereinafter Elmhurst), a facility controlled by the defendant. The infant was born prematurely at 30 weeks gestation and was treated at Elmhurst until September 16, 2015, when she was transferred to another hospital.

In July 2016, the plaintiff, as parent and natural guardian of the infant, served a notice of claim on the defendant, alleging, among other things, medical malpractice in the defendant’s treatment of the infant. * * *

The plaintiff’s experts opined that the infant suffered a massive bilateral parenchymal hemorrhage as a result of the treatment documented in Elmhurst’s records. * * *

Inasmuch as the Elmhurst records, upon independent review, suggested injury attributable to medical malpractice, those records provided the defendant with actual knowledge of the essential facts constituting the claim … .  Additionally, the plaintiff made an initial showing that the defendant would not suffer any prejudice by the delay in serving a notice of claim, and the defendant failed to rebut that showing with particularized indicia of prejudice … . The plaintiff also established a reasonable excuse for her failure to timely serve a notice of claim … . Tenezaca v New York City Health & Hosps. Corp., 2026 NY Slip Op 05208, Second Dept 9-2-25

Practice Point: In this medical malpractice action plaintiff moved to deem the late notice of claim timely served. The medical records suggested injury attributable to malpractice. Therefore the hospital was deemed to have had timely notice of the nature of the claim.

 

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WHETHER A CONDITION IS “OPEN AND OBVIOUS” IS USUALLY A JURY QUESTION; IN THIS SLIP AND FALL CASE, PLAINTIFF TRIPPED AND FELL OVER THE FORK PART OF A FORKLIFT PARKED IN AN AISLE OF A HOME DEPOT STORE; THE ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that whether a condition is “open and obvious” is usually a question of fact for the jury:

“A landowner has a duty to maintain its premises in a reasonably safe condition” … . “However, a landowner has no duty to protect or warn against conditions that are open and obvious and not inherently dangerous” … . “The determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … .

Here, the defendants’ submissions failed to eliminate all triable issues of fact as to whether the forklift was open and obvious and not inherently dangerous … . “Some hazards, although discernable, may be hazardous because of their nature and location” … . In particular, the plaintiff’s deposition testimony raised a triable issue of fact as to whether the forklift’s location, in relation to the five quarter decking the plaintiff was loading into his cart when the accident occurred, constituted an inherently dangerous condition … . The plaintiff testified, inter alia, that he could not put his cart right next to the location in the aisle where he was retrieving the five quarter decking because the forklift was in the way. Simon v Plainview Ave. Assoc., 2026 NY Slip Op 05205, Second Dept 9-2-26

Practice Point: Here plaintiff tripped over the fork part of a forklift parked in an aisle of a Home Depot store. The complaint should not have been dismissed. Whether the condition was open and obvious and not inherently dangerous was a question of fact.

 

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