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THE JURY VERDICT IN THIS REAR-END COLLISION TRIAL WAS IRREVOCABLY INCONSISTENT AND SHOULD HAVE BEEN SET ASIDE; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the jury verdict in this rear-end collision case was “irrevocably inconsistent” and must be set aside. The only nonnegligent explanation offered by the defendant was that he suffered a medical emergency just before the collision. On the verdict form the jury answered “no” to the question whether defendant suffered a medical emergency. But the jury also answered “no” to the question whether defendant was negligent in the operation the vehicle:

Supreme Court should have granted that branch of the plaintiff’s motion which was pursuant to CPLR 4404(a) to set aside the verdict as against the weight of the evidence and for a new trial. “Where, as here, the jury verdict ‘is irreconcilably inconsistent, that verdict must be set aside as contrary to the weight of the evidence'” … . Although the plaintiff did not object to the jury verdict as inconsistent prior to the discharge of the jury, thus failing to preserve an issue of law … “‘there is no preservation requirement for weight of the evidence review'” … .

Here, since the only nonnegligent explanation for the accident provided by the defendants was an alleged sudden medical emergency, it was irreconcilably inconsistent for the jury to answer “No” when asked whether the decedent “experience[d] a sudden, unforeseen medical emergency such as a seizure prior to the accident … , and was his operation of the vehicle reasonable under the circumstances,” while also responding “No” when asked whether the decedent was “negligent in the operation of the vehicle.” Accordingly, there must be a new trial on the issue of liability. Pitt v Rosenblatt, 2026 NY Slip Op 05200, Second Dept 9-2-26

​Practice Point: Here the “irrevocably inconsistent” jury verdict was against the weight of the evidence and should have been set aside. The issue need not be preserved for appeal.

 

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PETITIONERS DID NOT LEARN OF THE BABY’S MEDICAL CONDITION UNTIL SIX MONTHS AFTER THE INDUCED LABOR; PETITIONERS REQUESTED LEAVE TO FILE A LATE NOTICE OF CLAIM FOR MEDICAL MALPRACTICE; ALTHOUGH THE HOSPITAL DID NOT HAVE TIMELY KNOWLEDGE OF THE ESSENCE OF THE CLAIM, THE HOSPITAL DID NOT DEMONSTRATE ANY PREJUDICE FROM THE DELAY BECAUSE THE MEDICAL ISSUES WERE FULLY DOCUMENTED; THE REQUEST TO FILE A LATE NOTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioners’ request for leave to file a late notice of claim in this medical malpractice action should have been granted. Petitioner mother did not learn of her child’s medical condition until six months after her discharge from the hospital after labor was induced. Mother therefore had a reasonable excuse for failure to timely file a notice of claim. Although the hospital did not have timely knowledge of the nature of the claim, the hospital did not demonstrate any prejudice from the delay because the relevant issues were fully documented:

… [T]he court, in its discretion, must consider all relevant facts and circumstances, including, but not limited to, whether (1) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (2) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay would substantially prejudice the public corporation in its defense” … . Another factor to consider is whether the claimant was an infant at the time the claim arose and whether there is a nexus between infancy and delay in service … , which was the case here. “‘[T]he presence or absence of any one factor is not determinative'” … .

Here, the petitioners established a reasonable excuse for the delay, to wit, the serious medical condition of the infant petitioner, which required numerous medical appointments while the condition of the infant petitioner was being assessed … . The petitioners failed to demonstrate that NYCHHC had actual knowledge of the facts underlying the claim within 90 days after the claim arose or a reasonable time thereafter, since the hospital’s records did not evidence that the medical staff, by its acts or omissions, inflicted an injury attributable to malpractice … . However, “[s]ince the conduct at issue was fully documented in the medical records, the petitioner[s] made an initial showing that NYCHHC was not prejudiced by the delay in serving the notice of claim … , and, in response, the NYCHHC made no showing of prejudice” … . Matter of Caceres v NYC Health & Hosps., 2026 NY Slip Op 05182, Second Dept 9-2-26

Practice Point: Here the request to file a late notice of claim was granted despite the fact that the hospital did not have timely notice of the essence of the medical malpractice claim. Petitioners had a reasonable excuse for the delay and the hospital did not demonstrate any prejudice caused by the delay.

 

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DEFENDANT TREATING NEUROLOGIST INDICATED ON A DMV FORM FOR REINSTATEMENT OF THE PATIENT-DRIVER’S LICENSE THAT THE DRIVER’S LAST SEIZURE WAS TWO YEARS BEFORE WHEN, IN FACT, THE LAST SEIZURE WAS FOUR MONTHS BEFORE; TWO MONTHS AFTER REINSTATEMENT OF THE LICENSE, THE DRIVER HAD A SEIZURE-RELATED ACCIDENT IN WHICH PLAINTIFFS’ DECEDENTS DIED; THE ACTION AGAINST THE NEUROLOGIST SOUNDED IN ORDINARY NEGLIGENCE, NOT MEDICAL MALPRACTICE, AND WAS THEREFORE TIMELY BROUGHT (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Higgitt, determined the action sounded in negligence, not medical malpractice, rendering the action timely brought. Defendant neurologist was treating the non-party driver for seizures. In filling out a NYS Department of Motor Vehicles (DMV) form for reinstatement of the driver’s license, defendant stated that the driver’s last seizure was about two years before, when in fact the last seizure was four months before. To be entitled to reinstatement of the driver’s license, the driver must have been free of seizures for the previous 12 months. Two months after the driver’s license was reinstated, the driver had a seizure which resulted in a horrific traffic accident in which two people died. The lawsuit was brought by their estates:

… [P]laintiffs’ survival-action claims, premised on the theory that Dr. Avila erroneously recorded the date of the driver’s last seizure in the DMV form, which error led to the DMV reinstating the driver’s license, sound in ordinary negligence. The crux of the survival-action claims is not Dr. Avila’s negligence in furnishing medical treatment to the driver; rather, the essence of the claims is that Dr. Avila failed to fulfill a different duty. The nature of the act underlying those claims — transcribing a date from a treatment note to a governmental administration form — “is more administrative than medical in nature” … . Because the act underpinning the survival-action claims is administrative in nature, jurors can use their common everyday experience to evaluate whether Dr. Avila exercised due care … . That a physician made the alleged administrative error does not transform the claim from one sounding in ordinary negligence to one for medical malpractice; the characterization of a particular claim depends not on the title of the actor but on the nature of the challenged act … .

Ultimately, the core issue related to plaintiffs’ survival-action claims — whether Dr. Avila failed to exercise due care in recording a fact on the DMV form — may not implicate questions of medical competence or judgment regarding the treatment of the driver … . Unlike the inquiry on a medical malpractice claim, whether Dr. Avila breached his duty to exercise due care in recording a fact on the DMV form does not depend on an analysis of the medical treatment rendered to the driver … . Lafferty v Avila, 2026 NY Slip Op 05147, First Dept 8-27-26

Practice Point: If a jury does not need to analyze the medical treatment rendered by a doctor to determine a doctor’s negligence, the action does not sound in medical malpractice and is subject to a three-year statute of limitations for ordinary negligence.

 

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PLAINTIFF-TEACHER WAS STRUCK IN THE BACK BY A BASKETBALL THAT BOUNCED OFF THE RIM DURING A RECESS-PERIOD BASKETBALL GAME; PLAINTIFF SUED THE COMPANY WHICH CONTRACTED WITH THE SCHOOL TO PROVIDE A BASKETBALL COACH FOR RECESS GAMES; NO “ESPINAL”EXCEPTIONS APPLIED SO PLAIINTIFF, AS A NON-PARTY, COULD NOT SUE UNDER THE CONTRACT; IN ADDITION, PLAINTIFF, BY STANDING 10 TO 12 FEET FROM THE BASKETBALL COURT, ASSUMED THE RISK OF BEING STRUCK BY A BASKETBALL (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff-teacher’s action against the company hired by the school (Asphalt Green) to provide a basketball coach for school recess-periods should have been dismissed. Plaintiff was standing 10 to 12 feet from the basketball court when a basketball bounced off the rim and struck her in the back. Plaintiff was not a party to the contract between the school and Asphalt Green and none of the Espinal exceptions applied. In addition, plaintiff assumed the risk of being struck by a basketball:

A contracting party can assume a duty of care toward a third party where: 1) “the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm”; 2) “the plaintiff detrimentally relies on the continued performance of the contracting party’s duties”; or 3) “the contracting party has entirely displaced the other party’s duty to maintain the premises safely” (Espinal, 98 NY2d at 140 [internal citations omitted]). However, none of these exceptions apply to this case.

The facts do not establish that defendants launched an instrument of harm. * * * A missed basketball shot that bounces off the rim isa frequent occurrence in basketball games. * * * There is no claim that this was anything other than a normal basketball game being played during recess. * * *

Under the primary assumption of risk doctrine, “one is deemed to have assumed, as a voluntary participant, spectator, or even bystander certain risks occasioned by athletic or recreational activity, and to the extent of such an assumption, any legally enforceable duty to reduce the risks of such activity is limited” … . Carrero-Santiago v Asphalt Green, Inc., 2026 NY Slip Op 05144, First Dept 8-27-26

Practice Point: Plaintiff-teacher was not a party to the contract between the school and the company which provided a recess basketball coach. Because no “Espinal” exceptions applied, plaintiff, who was struck by an errant basketball while supervising recess, could not sue under the contract.

Practice Point: Plaintiff-teacher, who was standing 10 to 12 feet from the basketball court while supervising recess, assumed the risk of being struck by a basketball.

 

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THE COMPLAINT ALLEGING A VIOLATION OF JUDICIARY LAW 487 WAS DISMISSED; IT WAS ALLEGED AN ATTORNEY WAS AWARE HIS CLIENT’S SLIP AND FALL WAS STAGED; THERE WAS A TWO-JUSTICE DISSENT (FIRST DEPT). ​

The First Department, dismissing the complaint, over a two-justice dissent, determined the allegations of a Judiciary Law violation and fraud against an attorney were insufficient. It was alleged the attorney proceeded with a slip and fall action despite knowledge that the accident was staged:

Defendants/third-party plaintiffs failed to demonstrate “a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of” [attorney] Roytblat, or demonstrate that deliberate misrepresentations necessary to sustain a Judiciary Law § 487 claim were made to defendants and the court …”.

From the dissent:

The third-party complaint adequately meets the heightened pleading standard for a claim under Judiciary Law § 487. It alleges that video evidence appears to show Wilson Pena, a third-party defendant who concededly performs investigative services for Roytblat, deliberately creating the sidewalk defect at issue in the underlying personal injury action. Plaintiff also appears in the video to feign a trip-and-fall accident caused by the defect. The video evidence, links to which were included in the third party complaint, supports this allegation. The complaint further alleges that defendants’ attorney informed Roytblat … that the underlying personal injury claim that Roytblat was pursuing was fraudulent, and that video evidence existed showing fabrication of the sidewalk defect and staging of the accident. Despite having knowledge of the fraud, Roytblat continued to pursue the litigation over the following months and sought to discontinue the action only when informed that a news report concerning the fraud was about to air. Salas v 711-715 E 231st St., LLC, 2026 NY Slip Op 05064, First Dept 8-20-26

Practice Point: Here is a rare example of a Judiciary Law section 487 cause of action alleging an attorney proceeded with a slip and fall case knowing the accident was staged. Those allegations were deemed insufficient and the complaint was dismissed.

 

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HERE THE COMPLAINT WAS DISMISSED BECAUSE COUNSEL REFUSED TO PROCEED WITH THE TRIAL ON A PARTICULAR DAY; THAT SINGLE INCIDENT DID NOT AMOUNT TO “NEGLECT TO PROSECUTE;” THEREFORE PLAINTIFF WAS ENTITLED TO THE SIX-MONTH EXTENSION FOR FILING A NEW COMPLAINT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that the timely-commenced slip and fall case was not dismissed for failure to prosecute and the default did not constitute a determination on the merits. Therefore plaintiff’s filing of a new complaint within six months of the dismissal was timely:

When a prior action was timely commenced and dismissed on grounds other than voluntarily discontinuance, lack of personal jurisdiction, neglect to prosecute, or the entry of a final judgment on the merits, “CPLR 205(a) effectively tolls the running of a statutory period to permit refiling within six months” of the termination of the prior action … . Here, it is not disputed that the first action was timely commenced and that this action was commenced within six months of its termination.

… [T]he first action was not dismissed for “neglect to prosecute” within the meaning of CPLR 205(a). Where the dismissal of a prior action was for neglect to prosecute, in order to serve as a bar to the savings provision of CPLR 205(a), the court must have “set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation” … . Although the Supreme Court here set forth on the record that the plaintiff’s counsel had refused to proceed with the trial on one particular day, such conduct did not demonstrate a general “pattern” of delay in proceeding with the litigation so as to preclude application of CPLR 205(a) … .

Moreover, also contrary to the defendant’s contention, “dismissal of an action for a default pursuant to 22 NYCRR 202.27 does not constitute a determination on the merits” … . Thus, the six-month extension afforded by CPLR 205(a) was applicable, and the instant action was timely commenced. Rivera v Waterview Towers, Inc., 2026 NY Slip Op 05041, Second Dept 8-19-26

Practice Point: To constitute a dismissal for failure to prosecute, the judge must place on the record the specific conduct demonstrating a general pattern of delay. Here the complaint was dismissed because counsel refused to proceed to trial on a particular day. That was not a dismissal for “failure to prosecute” and the six-month extension for filing a new complaint was available.

 

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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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