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A PLAINTIFF NEED NOT SUBMIT ANY EVIDENCE IN OPPOSITION TO A MOTION TO DISMISS AS OPPOSED TO A MOTION FOR SUMMARY JUDGMENT; HERE THE COMPLAINT STATED CAUSES OF ACTION FOR MEDICAL MALPRACTICE AND LACK OF INFORMED CONSENT; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to dismiss the medical malpractice complaint should not have been granted, noting that a plaintiff need not present any evidence in opposition to a motion to dismiss, as opposed to a motion for summary judgment:

Supreme Court improperly granted the motion of [defendants] pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against them based on the plaintiff’s failure to comply with the court’s earlier directive “to provide an affidavit from a physician attesting [to] the merits of her claims.” The burden does not shift to the nonmoving party on a motion pursuant to CPLR 3211(a)(7). A plaintiff need not make an evidentiary showing in support of the complaint in order to defeat such a motion and will not be penalized for failure to do so … . Here, where the motion was not converted into one for summary judgment, the plaintiff had no obligation to provide an affidavit from an expert to support the allegations in the amended complaint in order to defeat the [defendants’] motion … . * * *

… [A]ccepting the allegations in the amended complaint as true and according the plaintiff the benefit of every possible favorable inference, the amended complaint sufficiently stated causes of action alleging medical malpractice and lack of informed consent … . Wilber v Borgen, 2026 NY Slip Op 02001, Second Dept 4-1-26

Practice Point: A plaintiff need not submit any evidence in opposition to a motion to dismiss the complaint. Here the judge should not have granted the motion on the ground the plaintiff did not comply with the court’s directive to submit an affidavit from a physician.

 

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SUPREME COURT’S GRANTING OF DEFENDANTS’ SUPPRESSION MOTIONS REVERSED IN THIS TRAFFIC STOP CASE; THE REPORT THAT THE VEHICLE HAD BEEN INVOLVED IN AN ARMED ROBBERY THAT DAY AND THE DEFENDANTS’ LACK OF COOPERATION AT THE TIME OF THE STOP JUSTIFIED BREAKING THE VEHICLE’S WINDOWS, REMOVING THE DEFENDANTS AND HANDCUFFING THEM; OBSERVING A FIREARM IN THE VEHICLE PROVIDED PROBABLE CAUSE TO ARREST (SECOND DEPT).

The Second Department, reversing Supreme Court’s suppression of evidence seized during a traffic stop, over a dissent, determined the police had reasonable suspicion to stop the vehicle and exigent circumstances justified the search of a defendant’s fanny pack. The dissent disagreed about the legitimacy of the search of the fanny pack:

… [T]he police officers had reasonable suspicion to stop the vehicle based upon the fact that the description of the vehicle matched that of a vehicle that had been involved in an armed robbery earlier that day, and the vehicle’s location had been detected by a license plate reader approximately five minutes prior to the stop … . Moreover, the actions of the police officers in drawing their guns and ordering the defendants out of the vehicle were justified under the circumstances as appropriate measures to ensure their safety … . Additionally, when the defendants failed to cooperate with the officers’ instructions, the officers acted appropriately in breaking the vehicle’s “excessive[ly] . . . tint[ed]” front windows for their own safety and then in removing the defendants from the vehicle and placing them in handcuffs … . The police thereafter had probable cause to arrest the defendants once the officer observed a firearm in plain view in the compartment of the driver’s side door of the vehicle … .

… [T]he subsequent search of Rivera’s fanny pack was justified as a search incident to a lawful arrest … . * * *

“Under the State Constitution, to justify a warrantless search incident to arrest, the People must satisfy two separate requirements” … . “The first imposes spatial and temporal limitations to ensure that the search is ‘not significantly divorced in time or place from the arrest'” … . “The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances” … . …

… The police were notified that a vehicle matching the description of the subject vehicle was involved earlier the same day in a gunpoint robbery in Brooklyn. … [A]fter the vehicle was boxed in by police vehicles, the occupants tried to escape the scene in the vehicle and continually refused the officer’s directives to lower the heavily tinted car windows or exit the vehicle. People v David, 2026 NY Slip Op 01980, Second Dept 4-1-26

Practice Point: Here Supreme Court granted defendants’ suppression motions and the Appellate Division reversed finding (1) the guns-drawn traffic stop, (2) the breaking of the vehicle’s windows, (3) the removal of defendants from the vehicle, (4) the handcuffing of the defendants, and (5) the arrest of the defendants upon observing a firearm in the vehicle, were constitutionally justified.

 

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THE POLICE OBSERVED A GROUP OF PEOPLE CHASING THE DEFENDANT AND ESSENTIALLY JOINED IN WITHOUT ANY KNOWLEDGE OF THE UNDERLYING CIRCUMSTANCES; THE WEAPON SEIZED IN THE STREET STOP SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, reversing defendant’s criminal possession of a weapon conviction (after trial) and dismissing the indictment, determined the police who participated in the foot chase and street stop of the defendant did not have the requisite “reasonable suspicion.” The police (in civilian clothes) saw a group of people chasing the defendant and essentially simply joined in the chase without any knowledge of the underlying circumstances. The seized firearm should have been suppressed:

… [T]he People failed to meet their burden of establishing the legality of the pursuit of the defendant, as the police lacked reasonable suspicion that the defendant had committed, was committing, or was about to commit a crime … . Neither Hain’s [the officer’s] observation of the defendant running away from a “group of civilians” chasing him, nor the female voice saying “that’s him, he’s getting away, grab him,” without reference to any specific acts, were sufficient to confer reasonable suspicion that the defendant was engaged in criminal activity, as opposed to the defendant being the victim of criminal activity or having no connection to any criminal activity … . Hain acknowledged that “I wasn’t sure exactly what was going on at the time,” and that the group could have been chasing the defendant “for anything.” Further, Hain’s vague testimony that when the group caught up to the defendant, he observed the defendant and a female individual “engaged in some sort of physical altercation,” which he described as “tussling, pulling back and forth at each other,” was insufficient, absent any details, to satisfy the People’s burden of establishing reasonable suspicion that the defendant was engaged in criminal activity. Hain acknowledged that “I don’t know if [the defendant] was defending himself,” and he did not testify that the defendant ever struck the female individual or engaged in any conduct constituting an assault or other criminal activity. Therefore, it cannot be determined from Hain’s testimony elicited at the hearing whether the defendant was merely trying to pull away from the female individual to continue running away after she and the group caught up to him.

Thus, Hain’s observations did not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion necessary to lawfully pursue the defendant, even when coupled with the defendant’s flight … . People v Alberto, 2026 NY Slip Op 01976, Second Dept 4-1-26

Practice Point: Here the police saw a group of people chasing the defendant and joined in without any knowledge of the underlying circumstances. Therefore the street stop was not justified by “reasonable suspicion.”

 

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SUMMARY JUDGMENT DISMISSING THE “UNDUE INFLUENCE” OBJECTION TO PROBATE OF A WILL SHOULD NOT HAVE BEEN GRANTED; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, noted that summary judgment is rarely appropriate where a party’s undue influence on the decedent is alleged as an objection to probate of a will:

… Surrogate’s Court should not have granted that branch of the petitioners’ motion which was for summary judgment dismissing the objection based on undue influence on the part of Theodos. “To invalidate an instrument on the ground of undue influence, there must be evidence that the influence exerted amounted to a moral coercion that restrained independent action and destroyed free agency or that, by importunity that could not be resisted, constrained a person to do that which was against his or her free will and desire, but which he or she was unable to refuse or too weak to resist” … . “In general, the burden of proving undue influence rests with the party asserting its existence” … . “An inference of undue influence, requiring the beneficiary to explain the circumstances of the bequest, arises when a beneficiary under a will was in a confidential or fiduciary relationship with the testator and was involved in the drafting of the will” … . “The adequacy of the explanation presents a question of fact for the jury” … . The existence of a confidential relationship is also “ordinarily . . . a question of fact” … .

Here, the record reflects that Theodos was assisting in the management of the decedent’s finances in the years leading up to the execution of the will and that certain provisions of the will were communicated to the decedent’s attorney through Theodos. In addition, Theodos was named as one of the executors of the will and was also named as a beneficiary, receiving a bequest of $20,000. As such, an inference of undue influence arises … , and there remain triable issues of fact in that regard … . Matter of Gennarelli, 2026 NY Slip Op 01962, Second Dept 4-1-26

Practice Point: Consult this decision for an explanation of the burden of proof for an “undue influence” objection to probate and why summary judgment is usually inappropriate in this context.​

 

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PLAINTIFF IN THIS FORECLOSURE ACTION DELAYED SIX YEARS BEFORE RESTORING THE ACTION TO THE ACTIVE CALENDAR AND FOUR YEARS BEFORE MOVING FOR LEAVE TO ENTER A DEFAULT JUDGMENT; INTEREST ON THE MORTGAGE DEBT SHOULD HAVE BEEN TOLLED FOR THOSE PERIODS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that interest on the mortgage debt in this foreclosure action should have been tolled because plaintiff failed to explain a six-year delay in restoring the action to the active calendar and its four-year-delay in moving for leave to enter a default judgment:

… Supreme Court should have granted the defendant’s application to toll the accrual of interest on the note from November 1, 2011, to September 13, 2022. “‘A foreclosure action is equitable in nature and triggers the equitable powers of the court'” … .. “‘Once equity is invoked, the court’s power is as broad as equity and justice require'” … . “‘In an action of an equitable nature, the recovery of interest is within the court’s discretion. The exercise of that discretion will be governed by the particular facts in each case, including any wrongful conduct by either party'” … .

Here, the plaintiff failed to explain its six-year delay in moving to restore the action to the active calendar, and further failed to explain its four-year delay in moving for leave to enter a default judgment against the defendant and for an order of reference after the action was restored to the active calendar. Under the circumstances of this case, since the defendant was prejudiced by these unexplained delays, during which time interest had been accruing, the interest on the note should have been tolled from November 1, 2011, to September 13, 2022 … . Greenpoint Mtge. Funding, Inc. v McFarlane, 2026 NY Slip Op 01945, Second Dept 4-1-26

Practice Point: Foreclosure actions are equitable in nature. Here undue delays by the plaintiff warranted tolling the accrual of interest for more than ten years.

 

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PLAINTIFF’S TESTIMONY THAT THE UNSECURED LADDER MOVED SUDDENLY AND TILTED TO THE LEFT WARRANTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined plaintiff in this ladder-fall case was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff testify the unsecured ladder moved suddenly and titled to the left:

… [T]he claimant demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). The claimant’s deposition testimony established that the unsecured ladder moved suddenly and tilted to the left, causing him to fall … . In opposition, the defendant failed to raise a triable issue of fact as to whether the claimant’s own acts or omissions were the sole proximate cause of the accident … . Bista v State of New York, 2026 NY Slip Op 01936, Second Dept 4-1-26

Practice Point: A plaintiff’s testimony that the ladder was unsecured and moved suddenly can be sufficient to warrant summary judgment in a Labor Law 240(1) action.

 

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PURSUANT TO THE MENTAL HYGIENE LAW, THE JUDGE DID NOT HAVE THE AUTHORITY TO INVALIDATE THE INCAPACITATED PERSON’S WILL IN THIS GUARDIANSHIP PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge in this guardianship proceeding pursuant to the Mental Hygiene Law did not have the authority to invalidate the incapacitated person’s will:

… [T]he court ,,, adjudged Vincent V. L. to be an incapacitated person within the meaning of Mental Hygiene Law article 81 and appointed an independent guardian for his person and property. At issue on this appeal … is whether the court properly directed, in the context of this Mental Hygiene Law article 81 proceeding, that the last will and testament of Vincent V. L. … , was void ab initio.

Mental Hygiene Law § 81.29(d) expressly provides, in relevant part, that “[t]he court shall not . . . invalidate or revoke a will or a codicil of an incapacitated person during the lifetime of such person” in the context of a Mental Hygiene Law article 81 proceeding. The Supreme Court thus did not have the authority to invalidate Vincent V. L.’s last will and testament in the context of this Mental Hygiene Law article 81 proceeding. Matter of Vincent V.L. (Matthew L.–Tomasine F.), 2026 NY Slip Op 01789, Second Dept 3-25-26

Practice Point: The Mental Hygiene Law prohibits the invalidation of an incapacitated person’s will in a guardianship proceeding.

 

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THE AFFIANT DID NOT SUBMIT THE BUSINESS RECORDS DEMONSTRATING THE NOTE WAS PHYSICALLY DELIVERED TO THE PLAINTIFF BEFORE THE FORECLOSURE ACTION WAS COMMENCED AND DID NOT DEMONSTRATE SHE HAD PERSONAL KNOWLEDGE THAT PLAINTIFF POSSESSED THE NOTE AT THE TIME THE ACTION WAS COMMENCED; THEREFORE PLAINTIFF DID NOT DEMONSTRATE STANDING TO FORECLOSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the documentary evidence submitted by plaintiff mortgage company to demonstrate it had standing to foreclose was insufficient:

“A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note” … . “The plaintiff meets this burden with proof of either a written assignment of the underlying note or the physical delivery of the note endorsed in blank or specially to it prior to the commencement of the foreclosure action” … .

Here, an affidavit of Teresa Swayze, an assistant vice president of the plaintiff’s servicing agent, submitted in support of the plaintiff’s motion for leave to renew, was insufficient to establish that the plaintiff possessed the note at the time this action was commenced. Swayze averred that the note was physically delivered to the plaintiff prior to the commencement of this action and attached to her affidavit a copy of the note with an allonge endorsed in blank. However, Swayze failed to submit the business record on which she relied for her assertion that the note was physically delivered to the plaintiff prior to the commencement of this action … . Moreover, Swayze’s affidavit did not demonstrate that she had personal knowledge of whether the plaintiff possessed the note at the time of the commencement of this action … . Federal Natl. Mtge. Assn. v Ayoola, 2026 NY Slip Op 01772, Second Dept 3-25-26

 

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THE DAY CARE PROVIDER TESTIFIED HER BACK WAS TURNED WHEN INFANT PLAINTIFF FELL OFF THE SLIDE; THE DAY CARE CENTER’S MOTION FOR SUMMARY JUDGMENT ON THE NEGLIGENT-SUPERVISION CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the cay-care-center defendants’ motion for summary judgment on the negligent-supervision cause of action should not have been granted. The complaint alleged infant plaintiff fell off a slide:

Day care providers are under a duty to adequately supervise the children in their charge and may be held liable for foreseeable injuries proximately related to a lack of adequate supervision … . “In general, the duty of a day care/preschool provider is to supervise the children in its care with the same degree of care as a parent of ordinary prudence would exercise in comparable circumstances” … . Generally, whether supervision was adequate and whether inadequate supervision was the proximate cause of a child’s injury are questions of fact … .

Here, the defendants failed to demonstrate, prima facie, that they provided adequate supervision to the plaintiff or that a lack of adequate supervision was not a proximate cause of the plaintiff’s injuries … . The defendants submitted, among other things, an expert affidavit from a child supervision expert and a transcript of the deposition testimony of the care provider present at the time of the plaintiff’s injury. The care provider testified that she was trained to always keep the children in her sight while they are in the gym. Moreover, the defendants’ expert emphasized that a teacher’s position should allow the teacher to clearly see the entire play area and the children. However, despite the care provider’s admitted familiarity with these practices, she testified that she was occupied tying another child’s shoe with her back turned when the plaintiff was on the playset with her brother and that she did not see the plaintiff until the plaintiff was on the ground. The defendants thereby failed to eliminate all triable issues of fact as to negligent supervision … . D.O. v Economic Opportunity Council of Suffolk, Inc., 2026 NY Slip Op 01797, Second Dept 3-25-26

Practice Point: A day-care provider is obligated to keep the play area and the children in sight at all times. Here the day-care provider had turned her back when infant plaintiff fell off the slide. That raised a question of fact precluding summary judgment in favor of defendant on the negligent-supervision cause of action.

 

NEW YORK IS A “PERMISSIVE COUNTERCLAIM” JURISDICTION; HERE COUNTERCLAIMS SHOULD NOT HAVE BEEN DISMISSED BECAUSE THEY COULD HAVE BEEN RAISED IN A PRIOR PROCEEDING (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined counterclaims in the current proceeding should not have been dismissed because they could have been raised in a prior proceeding: New York is a “permissive counterclaim” state:

New York is a permissive counterclaim jurisdiction under CPLR 3011 and 3019, where, generally, a defendant has no obligation to assert counterclaims and can wait to assert them in separate litigation … . However, while “[o]ur permissive counterclaim rule may save from the bar of res judicata those claims for separate or different relief that could have been but were not interposed in the parties’ prior action,” the rule “does not . . . permit a party to remain silent in the first action and then bring a second one on the basis of a preexisting claim for relief that would impair the rights or interests established in the first action” … .

Here, [the party’s] failure to assert the remaining causes of action as counterclaims in the prior action did not preclude him from asserting them in this action because, if [he] were successful on those causes of action, this would not impair the rights that were or could be established in the prior action with respect to him … . Berry v Batash, 2026 NY Slip Op 01755, Second Dept 3-25-26

Practice Point: Consult this decision for insight into when counterclaims which could have been raised in a prior proceedings should or should not be dismissed.

 

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