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DEFENDANT HOME CARE AGENCY WAS HIRED BY DEFENDANT HEALTHCARE PLAN AS AN INDEPENDENT CONTRACTOR, NOT AN EMPLOYEE; THEREFORE THE HEALTHCARE PLAN WAS NOT LIABLE FOR THE ALLEGED ASSAULT, BATTERY AND NEGLIGENT SUPERVISION COMMITED BY AN EMPLOYEE OF THE HOME CARE AGENCY (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined that Lighthouse, the parent company of GuildNet, a long-term healthcare plan, could not be held liable for the assault, battery and negligence allegedly committed by an employee of Ellison Home Care Companion Agency, which provided healthcare aides who attended to plaintiff’s mother. Plaintiff alleged his mother was assaulted and battered by Shaw, who was employed by Ellison. The contract between GuildNet and Ellison described Ellison as an independent contractor. Because Shaw was not GuldNet’s employee, GuildNet was not vicariously liable for Shaw’s actions:

The assault, battery, and negligence claims should have been dismissed as against GuildNet on the ground that Shaw was not its employee at the time of the underlying events. GuildNet and Ellison’s Participating Provider Agreement expressly defined their relationship as one of independent contractors rather than employer-employee … . The record discloses that GuildNet had only incidental control and general supervisory power over Ellison’s work, which is insufficient to establish an employer-employee relationship … . Further, Ellison admitted that Shaw was its employee and acting within the scope of her employment at the time of the underlying events.

The remaining claim for negligent supervision should also have been dismissed. To the extent that it is predicated on GuildNet’s alleged failure to supervise Shaw despite knowledge of her “propensity for the sort of behavior which caused” [plainiff’s mother’s] injuries and death … , Shaw was not GuildNet’s employee, and the record is bereft of any information that could impute to GuildNet knowledge of her propensity either to commit assault or battery or to ignore a client in distress … . To the extent that the claim is instead predicated on GuildNet’s alleged failure to supervise the care that [plaintiff’s mother] received, namely, by failing to assign a competent agency to assign a competent home health care aide to work with [her], plaintiff has not identified how such a failure proximately caused [her] injuries and death, assuming that GuildNet even had a duty to do so in the first place … . Pander v GuildNet, Inc., 2026 NY Slip Op 00201, First Dep-15-26

Practice Point: A party which hires a party as an “independent contractor” and does not exercise supervisory control over the independent contractor’s work will not be vicariously liable for wrongdoing by the independent contractor.

 

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THE DISMISSAL OF TWO FEDERAL LAWSUITS AGAINST DEFENDANT SCHOOL (ALLEGING SEXUAL AND PHYSICAL ABUSE OF PLAINTIFFS-STUDENTS) ON STATUTE-OF-LIMITATIONS GROUNDS DID NOT GIVE RISE TO A “VESTED RIGHT” REQUIRING THE DISMISSAL OF THE STATE ACTION UNDER THE CHILD VICTIMS ACT ALLEGING THE SAME FACTS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, determined that the dismissal of two federal lawsuits as barred by the statute of limitations did not create a “vested right” such that a state Child Victims Act action based on the facts alleged in the federal lawsuits should be dismissed. The lawsuits stemmed from allegations of sexual and physical abuse of plaintiffs, students at defendant school:

The federal doctrine of vested rights has roots in common and even natural law. * * *

The case most often cited by modern cases for articulating the doctrine is McCullough v Virginia (172 US 102 [1898]). There, a taxpayer prevailed in a Virginia state court against the State of Virginia, obtaining a judgment for a tax refund (id.). Before the judgment was executed, the Virginia legislature repealed the legislation that had entitled the taxpayer to a refund (id.). McCullough held that the United States Constitution barred the state legislature from repudiating the state court judgment, explaining that “[it] is not within the power of the legislature to take away rights which have been once vested by a judgment,” and that when “passed into judgment the power of the legislature to disturb the rights created thereby ceases” … .

McCullough, its progeny, and earlier cases establish that a final money judgment gives rise to a vested due process property right, which entitles the judgment creditor to the same constitutional protections afforded other forms of property … . * * *

In describing their purported property right, the … defendants argue that they are not asserting a property right in “any previously-applicable statute of limitations, but rather in the final federal judgments that they received.” Indeed, if the final federal judgments, standing alone, do not vest defendants with a constitutionally protected property right, the argument fails because, as the … defendants concede, “[o]f course a statute of limitations itself does not create property rights” … . M.T. v Yeshiva Univ., 2026 NY Slip Op 00218, First Dept 1-15-26

Practice Point: The dismissal of federal lawsuits as barred by the statute of limitations did not constitute a “vested right” requiring dismissal of the state action under the Child Victims Act based on the same facts.​

 

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THE INCIDENT IN WHICH PLAINTIFF WAS INJURED BY BROKEN GLASS IN A DOOR WAS CAPTURED ON VIDEO WHICH WAS NEGLIGENTLY ERASED; PLANTIFF ALLEGED THE GLASS BROKE WHEN PLAINTIFF PULLED ON THE DOOR; AN EMPLOYEE OF THE BUILDING’S SECURITY COMPANY WHO SAW THE VIDEO CLAIMED PLAINTIFF PUNCHED THE GLASS; PRECLUSION OF TESTIMONY ABOUT THE CONTENTS OF THE VIDEO WAS TOO SEVERE A SANCTION FOR SPOLIATION; PLAINTIFF WAS ENTITLED TO AN ADVERSE INFERENCE JURY INSTRUCTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, over a two-justice concurrence, determined the video showing plaintiff’s injury from broken glass in a door was negligently, not intentionally, erased. Therefore the proper sanction was an adverse inference charge, not the preclusion of any evidence about the contents of the video. Plaintiff alleged the glass broke when plaintiff pulled on the door. Williams, an employee of the building-security company who viewed the video, claimed plaintiff punched the glass:

… [P]laintiff showed that the defendants had an obligation to preserve the video surveillance footage of the incident at the time that the footage was destroyed. Williams learned that the glass in the door was broken the same day that the incident occurred, and she investigated and documented it. Furthermore, the defendants’ site manager testified at a deposition that the plaintiff’s mother called after the incident to report that the plaintiff’s arm had gone through the glass in the door, causing “severe injury,” and that he was in the hospital. After receiving this report, the site manager testified, she spoke with Williams and learned that Williams had viewed video surveillance footage depicting the incident and had created an incident report. “Given the nature of the plaintiff’s injuries and the immediate documentation and investigation into the accident by the defendants’ employee[ ], the defendants were on notice of possible litigation and thus under an obligation to preserve any evidence that might be needed for future litigation” … . * * *

Supreme Court improvidently exercised its discretion in precluding the defendants from presenting any evidence regarding Williams’s observations of the video surveillance footage, as this sanction disproportionately eliminated their defense to this action. Instead, under the circumstances, including the negligent, rather than intentional, destruction of the video surveillance footage and the degree of prejudice to the plaintiff, 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 … . Battle v Fulton Park Site 4 Houses, Inc., 2026 NY Slip Op 00114, Second Dept 1-14-26

Practice Point: Here preclusion of testimony about the contents of a negligently (not intentionally) erased video which depicted the incident was deemed too severe a spoliation sanction because preclusion eliminated the only defense to the action. An adverse inference charge was deemed the appropriate sanction.

 

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HERE AN INDEPENDENT CLEANING CONTRACTOR APPARENTLY CREATED A DANGEROUS FLOOR CONDITION WHICH INJURED PLAINTIFF; ALTHOUGH THE COMPANY WHICH HIRED THE INDEPENDENT CONTRACTOR WAS NOT LIABLE FOR THE INDEPENDENT CONTRACTOR’S NEGLIGENCE, MARSHALLS, THE RETAIL STORE WHERE THE INJURY OCCURRED, COULD BE VICARIOUSLY LIABLE FOR THE INDEPENDENT CONTRACTOR’S NEGLIGENCE BECAUSE MARSHALLS HAS A NONDELGABLE DUTY TO KEEP THE PUBLIC AREAS OF ITS STORE SAFE; WHETEHER MARSHALLS HAD NOTICE OF THE DANGEROUS CONDITION IS NOT AN ISSUE WHERE VICARIOUS LIABILITY MAY APPLY (FIRST DEPT).

The First Department noted that Marshall’s had a nondelegable duty to keep the public area of its store safe. The underlying fact of the case are not described but plaintiff was apparently injured because of the negligence of defendant cleaning subcontractor. The defendant which hired the subcontractor was not liable because the subcontractor was retained as an independent contractor. But the store was liable for the subcontractor’s negligence based upon its nondelegable duty to keep public areas safe (notice of the dangerous condition is not an issue):

The general rule is that a party who retains an independent contractor is not liable for that contractor’s negligent acts … . The record establishes that neither USM [the company which hired the independent contractor] nor Marshalls exercised control over how [the independent contractor] performed its cleaning tasks at the Marshalls store where plaintiff was injured, and that USM was not even present at the location at the time of the accident. * * *

… [T]he court should not have granted summary judgment dismissing the complaint as against Marshalls, which had a nondelegable duty to maintain the public area of its store in a reasonably safe condition. Therefore, Marshalls can be held vicariously liable for any negligence on the part of the subcontractor that caused the floor to become unsafe … . In light of the foregoing, we find it unnecessary to consider whether Marshalls established lack of notice of the hazardous condition. Jones v Marshalls, 2026 NY Slip Op 00087, First Dept 1-13-26

Practice Point: Here a retail store, Marshall’s could be vicariously liable for a slip and fall caused by the negligence of an independent cleaning contractor. The store has a nondelegable duty to keep its public areas safe. The question whether Marshall’s had notice of the dangerous condition is irrelevant where liability is vicarious. [Why is a retail store’s notice of the dangerous condition a crucial issue where no independent contractor is involved, but irrelevant when the cleaning is done by an independent contractor?]

 

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NOXIOUS ODORS FROM A PLASTIC-MANUFACTURING FACILITY CANNOT BE THE BASIS OF A NEGLIGENCE CAUSE OF ACTION BECAUSE THE ODORS HAVE NOT CAUSED PHYSICAL INJURY OR PROPERTY DAMAGE (ECONOMIC LOSS IS NOT SUFFICIENT); THE NOXIOUS ODORS DO SUPPORT A PRIVATE NUISANCE CAUSE OF ACTION EVEN THOUGH A LARGE NUMBER OF PRIVATE CITIZENS IN THIS CLASS ACTION LAWSUIT ARE AFFECTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this class action lawsuit, in a full-fledged opinion by Justice Voutsinas, over a concurrence and partial dissent, determined (1) noxious odors emanating from defendant’s plastic-manufacturing facility are properly the subject of a private nuisance cause of action on behalf of a collective of individuals, and (2) the noxious odors are not a proper subject for a negligence cause of action because no tangible physical harm or property damage was alleged (diminution in property value is not enough):

“‘To recover in negligence [or gross negligence], a plaintiff must sustain either physical injury or property damage resulting from the defendant’s alleged negligent conduct . . . This limitation serves a number of important purposes: it defines the class of persons who actually possess a cause of action, provides a basis for the factfinder to determine whether a litigant actually possesses a claim, and protects court dockets from being clogged with frivolous and unfounded claims'” … .

“Although [the] defendant undoubtedly owes surrounding property owners a duty of care to avoid injuring them . . . , the question is whether [the] plaintiff[s] sustained the required injury” … . “‘[T]he economic loss resulting from the diminution of [the] plaintiff[s’] property values is not, standing alone, sufficient to sustain a negligence claim under New York law'” … . * * *

“‘The elements of a private nuisance cause of action are: (1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failing to act'” … . …

A private nuisance cause of action is one where “[t]he rights invaded . . . are not suffered by the [plaintiffs] in their status as citizens or part of the public” … . Rather, the harm is suffered by the plaintiffs “in their private capacity in respect of an interference with the comfortable enjoyment of their homes,” which does not become a public nuisance “merely because a considerable number are injured” … . Dudley v API Indus., Inc., 2025 NY Slip Op 07379, Second Dept 12-31-25

Practice Point: Noxious odors do not support a negligence cause of action because there is no physical injury of property damage (diminished property value is not enough).

Practice Point: Noxious odors support a private nuisance cause of action, even where a large number of private citizens are affected.

 

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DEFENDANT REHABILITATION FACILITY WAS IMMUNE FROM SUIT PURSUANT TO THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) RE: PLAINTIFF’S DECEDENT’S COVID-RELATED INFECTION AND DEATH (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the suit against defendant rehabilitation facility alleging plaintiff’s decedent was infected with COVID at the facility, causing her death, should have been dismissed. The defendant facility was immune from suit pursuant to the Emergency or Disaster Treatment Protection Act (EDTPA):

… [T]he EDTPA initially provided, with certain exceptions, that a health care facility shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services as long as three conditions were met: [1] the services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law; [2] the act or omission was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives; and [3] the services were arranged or provided in good faith” … . * * *

The defendant’s submissions, including, inter alia, its various COVID-19 pandemic-related policies and protocols, the directives issued by the New York State Department of Health and the New York State Department of Health and Human Services, and the decedent’s medical records, conclusively established that the defendant was entitled to immunity as the three requirements for immunity under the EDTPA were satisfied (see Public Health Law former § 3082[1] …). Costiera v MMR Care Corp., 2025 NY Slip Op 07373, Second Dept 12-31-25

Practice Point: Consult this decision for an explanation of the criteria for the COVID-related immunity afforded health care facilities pursuant to the EDTPA.​

Similar issues and result in Byington v North Sea Assoc., LLC, 2025 NY Slip Op 07372, Second Dept 12-31-25

 

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DEFENDANT LANDLORD’S SUMMARY JUDGMENT MOTION IN THIS SIDEWALK SLIP AND FALL CASE RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANT HAD TRANSFERRED RESPONSIBILITY FOR SNOW AND ICE REMOVAL IN THE AREA OF THE FALL TO PLAINTIFF TENANT AND WHETHER DEFENDANT HAD ACTUAL KNOWLEDGE OF THE RECURRING COLLECTION OF WATER AND ICE IN THE AREA OF THE FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence submitted by defendant landlord in this icy-sidewalk slip and fall case failed to eliminate questions of fact about whether defendant had completely relinquished to the plaintiff responsibility for snow and ice removal in the area of the fall and whether defendant had actual knowledge of the depression in the sidewalk and the formation of ice in the area of the fall:

Here, the evidence submitted by the defendant demonstrated that the defendant lived at the property where the plaintiff’s accident occurred. Additionally, at his deposition, the defendant testified that the garbage cans for both sides of the property, which he maintained, were located on the plaintiff’s side of the property and that he approached the garbage cans several times per week both to place trash in the garbage cans and to bring the garbage cans to the street for collection. Moreover, photographs submitted by the defendant depicting the area where the plaintiff fell demonstrated that the garbage cans were stored within a few feet of that area. Although the lease stated that the plaintiff was responsible for cleaning any accumulated snow from the entryway outside his private entrance, the lease also stated that the defendant was required to provide the plaintiff with a shovel and salt to complete this task. Finally, although the plaintiff testified at his deposition that he took care of snow removal for the area where he fell, his son testified at his deposition that in December 2018, approximately one month before the plaintiff’s accident, the defendant had, on a few occasions, placed salt on ice in that area.

… Although the defendant denied knowing about the condition or having any conversations with the plaintiff about this condition, at his deposition, the plaintiff testified that prior to the accident, he had told the defendant “[f]our to five times” about the allegedly defective section of the side yard walkway, including that ice and snow would accumulate there in the winter. Moreover, several of the photographs submitted by the defendant depicted an accumulation of ice and snow in the allegedly defective area where the plaintiff fell. Yongxi Li v Pei Xing Huang, 2025 NY Slip Op 07432, Second Dept 12-31-25

Practice Point: Consult this slip-and-fall decision for succinct explanations of the law concerning the responsibility for snow and ice removal as between a resident landlord and a tenant, as well as a landlord’s actual knowledge of a recurring dangerous condition.

 

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HERE THE OWNER AND GENERAL CONTRACTOR DEMONSTRATED THEY DID NOT EXERCISE SUPERVISION AND CONTROL OVER THE WORK PLAINTIFF WAS DOING WHEN INJURED; THEREFORE THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION AGAINST THEM SHOULD HAVE BEEN DISMISSED; THE COURT NOTED THAT THE RIGHT TO GENERALLY SUPERVISE THE WORK OR TO STOP THE WORK FOR SAFETY VIOLATIONS DOES NOT CONSTITUTE “SUPERVISION AND CONTROL” OF THE WORK WITHIN THE MEANING OF LABOR LAW 200 OR COMMON LAW NEGLIGENCE (SECOND DEPT).

The Second Department, dismissing the Labor Law 200 and negligence causes of action against the owner and general contractor, noted that the right to generally supervise the work, to stop the work for a safety violation or to ensure compliance with safety regulations does not amount to the level of supervision and control of the work for liability under Labor Law 200. Plaintiff worked for a subcontractor and was injured while attempting to guide a heavy concrete object as it was lowered into a hole by a crane:

“The right to generally supervise the work, to stop the work if a safety violation is noted, or to ensure compliance with safety regulations does not amount to the supervision and control of the work necessary to impose liability on an owner or a general contractor pursuant to Labor Law § 200” … . Here, … defendants established … that the alleged incident arose from work performed over which they did not exercise supervision or control … . Kelly v RBSL Realty, LLC, 2025 NY Slip Op 07291, Second Dept 12-24-25

Practice Point: In the context of the requirements for Labor Law 200 and common law negligence liability for construction accidents, the owner’s and/or general contractor’s right to generally supervise the work and/or to stop the work for safety violations does not amount to “supervision and control” of the work.​

 

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IN THIS CHILD VICTIMS ACT CASE, DEFENDANT COUNTY, WHICH HAD ASSUMED CUSTODY OF PLAINTIFF FOSTER CHILD, PLACED PLAINTIFF IN DEFENDANT SCHOOL WHERE SHE ALLEGEDLY WAS SEXUALLY ABUSED BY A TEACHER DAILY FOR SIX MONTHS; THE ALLEGED FREQUENCY OF THE ABUSE RAISED A QUESTION OF FACT WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF IT (SECOND DEPT).

he Second Department, reversing Supreme Court, determined this Child Victims Act (CPLR 214-g) action against the county and a school should not have been dismissed. The county had assumed custody over plaintiff, a foster child, and placed her in defendant school. Plaintiff alleged she was sexually abused by a teacher daily for six months. The alleged frequency of the abuse raised a question of fact whether defendants should have known of the abuse (constructive notice):

“By assuming legal custody over [a] 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” … . Therefore, “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 [home]” … . “In order to find that a child care agency breached its duty to adequately supervise the children entrusted to its care, a plaintiff must establish that the agency had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . “Where the complaint alleges negligent supervision due to injuries related to an individual’s [*2]intentional acts, the plaintiff generally must allege that the entity knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable” … . M.F. v Putnam County, 2025 NY Slip Op 07283, Second Dept 12-24-25

Practice Point: In Child Victims Act cases alleging sexual abuse by a teacher, courts are finding that allegations of frequent abuse raise a question of fact about whether defendants should have been aware of it.

 

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A LAWSUIT ALLEGING NONCONSENSUAL SEXUAL TOUCHING PURSUANT TO THE ADULT SURVIVORS ACT (CPLR 214-J) NEED NOT ALLEGE PLAINTIFF’S INTIMATE PARTS WERE TOUCHED BY THE DEFENDANT TO STATE A CAUSE OF ACTION; IT IS ENOUGH THAT THE COMPLAINT ALLEGE PLAINTIFF WAS TOUCHED UNDER CIRCUMSTANCES WHICH AFFORDED THE DEFENDANT SEXUAL GRATIFICATION (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Wilson, in a matter of first impression, determined that a complaint under the Adult Survivors Act (CPLR 214-j) need not allege the defendant touched plaintiff’s intimate parts to state a cause of action for nonconsensual sexual touching. Here defendant, a doctor, allegedly touched plaintiff’s lower back while she was undressed and standing on a step stool facing away from the defendant to determine whether her kidneys were causing lower back pain. Although defendant did not touch plaintiff’s intimate parts, it was alleged the examination was motivated by sexual gratification:

The Adult Survivors Act (ASA) (CPLR 214-j) is a statute that permits adult survivors of sexual abuse to revive otherwise time-barred civil actions against alleged abusers arising from, among other things, conduct that would constitute a sexual offense under Penal Law article 130. The offense of forcible touching under Penal Law § 130.52(1) requires that there be a nonconsensual touching of “sexual or other intimate parts” of another person for the purpose of degradation or abuse of such person or for the purpose of gratifying the actor’s sexual desire. The offense of sexual abuse in the third degree under Penal Law § 130.55 requires nonconsensual “sexual contact.” This appeal provides our Court with an opportunity to address an issue of first impression in this judicial department regarding how narrow, or broad, we should construe the elemental concepts of sexual touching and sexual contact under the ASA. We hold that where, as here, the alleged nonconsensual touching or sexual contact was to a part of the body other than an anatomically sexual part, in the classic sense, these Penal Law offenses may still qualify as a predicate for an action pursuant to the ASA if the broader facts, manner, and circumstances of the touching or sexual contact involve intimacy or the alleged sexual gratification of the abuser. Aguilar v Wishner, 2025 NY Slip Op 07265, Second Dept 12-24-25

Practice Point: Here the complaint alleged defendant, a doctor, touched plaintiff’s lower back during a physical examination under circumstances which afforded defendant sexual gratification. That was sufficient to state a cause of action under the Adult Survivor’s Act. Under the Act, a plaintiff need not allege defendant touched plaintiff’s intimate parts.

 

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