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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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PLAINTIFF STEPPED BACKWARD TO ALLOW OTHERS TO EXIT THE ELEVATOR; THE FLOOR OF THE ELEVATOR WAS SIX TO TWELVE INCHES ABOVE THE BUILDING FLOOR AND PLAINTIFF SEVERELY INJURED HIS KNEE; THE SIX TO TWELVE INCH GAP WAS NOT THE TYPE OF “ELEVATION RISK” COVERED BY LABOR LAW 240(1) (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the 6 to 12-inch gap between the floor of the elevator and the unfinished floor just outside the elevator door was not the type of “elevation risk” addressed by Labor Law 240(1). Defendants’ motion to dismiss the Labor Law 240(1) action should have been dismissed. However, Supreme Court properly denied defendants’ motion to dismiss the Labor Law 200 cause of action (unsafe condition):

Supreme Court should have granted defendants’ motion for summary judgment to the extent it sought dismissal of the Labor Law § 240(1) cause of action. Not every fall results in the “extraordinary protections of Labor Law § 240(1)” … . The statute protects workers only from those falls stemming from the “extraordinary elevation risks” created by “the relative elevation at which the [work] must be performed” and not from “the usual and ordinary dangers of a construction site” … .

It is true that “there is no bright-line minimum height differential that determines whether an elevation hazard exists” … . However, under the present circumstances, the 6-to-12 inch gap between the elevator doorway and the floor “was not a physically significant height elevation differential to trigger the protection of Labor Law § 240(1)” … . Also, neither the elevator nor the missing ramp was the “functional equivalent of a safety device enumerated in the statute” … . Instead, the record supports a conclusion that plaintiff’s injury arose from the type of “usual and ordinary” perils plaintiff could expect at his job site … . Ambrose v City Univ. Constr. Fund, 2026 NY Slip Op 05060, Second Dept 8-20-26

Practice Point: Here the six to twelve inch gap between the floor of the elevator and the building floor was not the type of “elevation risk” covered by Labor Law 240(1). Labor Law 200 (unsafe condition) may apply.​

 

NONRESPONDENT MOTHER REPORTED DOMESTIC ABUSE BY HER HUSBAND; AT THE FIRST COURT APPEARANCE, MOTHER AND HER CHILDREN WERE PLACED UNDER THE SUPERVISION OF THE ADMINISTRATION FOR CHILDREN’S SERVICES (ACS); IN THE FACE OF NO EVIDENCE MOTHER’S HOME AND CHILDREN WERE NOT WELL-CARED-FOR, FOR 18 MONTHS, SHE AND HER CHILDREN WERE SUBJECTED TO FREQUENT HOME VISITS, SEARCHES, COMMUNICATIONS WITH THE CHILDREN’S SCHOOL, AND VISITS BY LAW ENFORCEMENT; FAMILY COURT ACT SECTION 1054 DOES NOT AFFORD ACS SUCH BROAD POWERS OF SUPERVISION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Rosado, determined the order which placed nonrespondent mother (Sasha C) under the supervision of the Administration for Children’s Services (ACS) was “unlawful and represented a broad overreach beyond the scope of power permitted by Family Court Act section 1054 and in contravention of its purpose.” Nonrespondent mother reported domestic abuse by her husband. From that point on the court placed her under ACS supervision which, for 18 months, entailed frequent home visits and searches, frequent communication with her children’s school, visits by law enforcement, and frequent court appearances, all in the face of no evidence the home and children were not well-cared for. The detailed description of the ACS’s intrusion into mother’s life is harrowing and well-worth reading:

Family Court erred when it placed the mother and her entire household under sweeping, overbroad, and unchecked “ACS supervision and household monitoring” in its May 31, 2024 order of fact-finding and disposition. The error was compounded by the issuance of the February 28, 2025 order extending the supervision despite the lack of good cause shown or a sound basis in the record. Such conditions of supervision run afoul of the power and purpose of Family Court Act § 1054. While the statute provides that a court may direct a nonrespondent parent to undertake certain actions with respect to the child released into their care to ensure their accessibility for services, appointments, visitation and the like, it is clear, based on the unambiguous language in the statute, that the court may not place a parent who has not been accused of any wrongdoing under ACS supervision at the postdispositional stage of the proceeding (id.; cf. Family Court Act § 1057). Even were we to accept ACS’s argument that the mother acquiesced to its request for supervision at the May 30, 2024 disposition, her agreement is irrelevant. It bears noting that the supervision proposed by ACS on that date to conduct “video visits with the children,” was a departure from the supervision that was exercised by ACS postdisposition.

To the extent that ACS argues that Family Court’s temporary extension of supervision over the mother’s household was reasonable given, among other things, the mother’s history of “failing to report the father’s neglect by domestic violence,” we once again find that ACS’s policy of pursuing supervision in such cases “reinforces the coercive control underpinning abusive relationships, turns survivors into suspects, and requires the nonrespondent parent to answer for the respondent parent’s abusive behaviors” and that adhering to such a policy would permit ACS to continue surveillance of the mother simply because the child’s father committed acts of domestic violence against her … . We reject this policy based on its faulty and unlawful premises … . Matter of L.M. (H.M.), 2026 NY Slip Op 05061, First Dept 8-20-26

Practice Point: This is an important opinion which places limits on the power of an agency, pursuant to Family Court Act section 1054, to subject a nonrespondent parent to supervision. Here nonrespondent mother reported domestic abuse by her husband. In the absence of any evidence her home and children were not well-cared-for, she was unlawfully subjected to home visits and searches, unwarranted communications with the children’s school, even visits by law enforcement, for a period of 18 months.

 

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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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IN AN ACTION ALLEGING A FRAUDULENT SCHEME TO DEREGULATE APARTMENTS, TO MAKE OUT A PRIMA FACIE CASE SUCH THAT THE FOUR-YEAR LOOK-BACK DOES NOT APPLY, PLAINTIFF NEED NOT DEMONSTRATE EACH ELEMENT OF COMMON-LAW FRAUD; SUFFICIENT INDICIA OF FRAUD OR A COLORABLE CLAIM OF A FRAUDULENT SCHEME ARE WHAT MUST BE DEMONSTRATED (FIRST DEPT).

The First Department, reversing Supreme Court upon remittitur from the Court of Appeals, over a two-justice dissent, remitted the matter to Supreme Court for application of the recently clarified standard for the prima facie demonstration of fraud in an action alleging a fraudulent scheme to deregulate apartments. The issue is whether plaintiffs presented sufficient evidence of fraud to overcome the four-year look-back provision in the former Rent Stabilization Law:

… [T]he Court [of Appeals] refined the common-law standard applied to allegations of a fraudulent scheme to deregulate apartments subject to rent stabilization on a motion to dismiss under CPLR 3211 … . More specifically, [the Court of Appeals] “made clear that, for the fraud exception [to the four-year lookback period in the former Rent Stabilization Law § 26-516 (a)] to apply, a plaintiff need not demonstrate each element of common-law fraud and instead must put forth sufficient indicia of fraud or a colorable claim of a fraudulent scheme” … .

Parallel to the Court of Appeals’ development of the common law applicable to fraudulent deregulation claims, the legislature addressed the fraudulent deregulation standard by statute … . Under the legislature’s statutory amendments, the relevant inquiry is whether the landlord ” ‘knowingly engaged in [a] fraudulent scheme [to deregulate] after a consideration of the totality of the circumstances’ ” … To date, the Court of Appeals has not had occasion to “address to what extent this legislation differs from [the] common-law rule, and, if there is any difference, the impact or applicability of that legislation” … . Aras v B-U Realty Corp., 2026 NY Slip Op 04983, First Dept 8-13-26

​Practice Point; Consult this decision for insight into what a plaintiff must allege or demonstrate to survive a motion to dismiss or to warrant summary judgment in an action alleging a fraudulent scheme to deregulate apartments and seeking the “fraud exception” to the statutory four-year look-back for damages.

 

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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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THIS MATTER WAS SENT BACK FOR CONSIDERATION OF DEFENDANT’S YOUTHFUL OFFENDER STATUS; THE RULING ON REMAND DEMONSTRATED THE JUDGE WAS NOT AT ALL FAMILIAR WITH DEFENDANT’S CRIMINAL HISTORY AND WAS IN FACT MISTAKEN ABOUT IT; MATTER REMANDED AGAIN (FIRST DEPT).

he First Department, reversing Supreme Court’s ruling on remand to consider defendant’s youthful offender (YO) status, determined the judge was confused about defendant’s criminal history and in fact was mistaken about it  The case was remanded again:

In making a YO treatment determination, sentencing courts may consider “the gravity of the crime and manner in which it was committed, mitigating circumstances, defendant’s prior criminal record, prior acts of violence, recommendations in the presentence reports, defendant’s reputation, the level of cooperation with authorities, defendant’s attitude toward society and respect for the law, and the prospects for rehabilitation and hope for a future constructive life” … . While courts are not required to place their reasons for denying YO treatment on the record … , at minimum, YO consideration requires the court to have familiarity with the relevant facts and circumstances of the case before it (see CPL 720.20[1][a]).

Here, the sentencing court tracked the statutory language in denying defendant YO treatment. However, it is unclear whether the court was cognizant of the relevant facts and circumstances of defendant’s case to appropriately consider YO treatment, much less the Cruickshank factors (105 AD2d at 334).

At the very least, this record calls into question whether defendant was appropriately considered for YO treatment. The sentencing court’s confusion exposes that it was so unaware of the facts of the underlying offense that we cannot be sure it considered the mitigating factors specific to this defendant that might warrant YO treatment, i.e. that the instant offense is defendant’s first conviction, signaling that he is not a hardened criminal; defendant’s expressed remorse, despite acting in self-defense; the overt steps he has taken to lead a law-abiding life; or the lack of serious injuries to the victim. People v Marcus T., 2026 NY Slip Op 04913, First Dept 8-6-26

Practice Point: Courts need not place the reasons for denial of YO status on the record. But the court must be aware of the relevant facts and circumstance of the case. Here the judge demonstrated he did not know the defendant’s criminal history, requiring reversal.

 

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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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