Tag Archive for: Second Department

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A PUTATIVE CLASS ACTION SUIT ALLEGING MUSEUM ADMISSION TICKETS FAILED TO DISCLOSE THE FULL PRICE OF THE TICKET PROPERLY SURVIVED A MOTION TO DISMISS; THE “VOLUNTARY PAYMENT DOCTRINE” DID NOT APPLY (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ottley, in a matter of first-impression, affirming the denial of the motion to dismiss, determined plaintiff stated a cause of action for a violation of the Arts and Cultural Affairs Law and had standing to bring a class action suit. The essence of the violation was the purported failure to disclose the full price of a ticket for admission to a museum, which included taxes and fees, prior to the ticket purchase. The cause of action is statutory. The “voluntary payment doctrine” was deemed inapplicable:

Arts and Cultural Affairs Law § 25.07(4) provides that the defendant shall disclose the total cost of the ticket, including ancillary fees, prior to the ticket being selected for purchase and that the “service charge, or any other fee or surcharge to the purchaser” be “disclosed in a clear and conspicuous manner” (id.). Arts and Cultural Affairs Law § 25.33 provides that “any person who has been injured by reason of a violation of this article may bring an action in his or her own name to enjoin such unlawful act, an action to recover his or her actual damages or fifty dollars, whichever is greater, or both such actions. The court may award reasonable attorney’s fees to a prevailing plaintiff.” * * *

The voluntary payment doctrine “bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law” … .

… [W]e conclude … the voluntary payment doctrine does not bar the plaintiff’s claims alleging violations of Arts and Cultural Affairs Law § 25.07(4) because such claims are predicated on a lack of full disclosure … . Cammayo v 1AND8, Inc., 2026 NY Slip Op 05762, Second Dept 10-7-26

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THERE WAS NO PROOF PLAINTIFFS HAD NOTICE DEFENDANT WAS ACTING AS AN AGENT FOR A LIMITED LIABILITY COMPANY WHEN HE SIGNED THE CONSTRUCTION-LOAN CONTRACT; THE BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant, the principal in a limited liability company (LLC), told plaintiffs he was the “owner of the property” at the time the construction-loan contract was signed and did not disclose the loan was for the company (the LLC). Therefore defendant’s argument he was acting as an agent for the LLPC when the contract was signed was rejected:

“An agent who enters into a contract on behalf of a disclosed principal is not personally liable unless there is clear and explicit evidence of the agent’s intention to be personally bound” … . However, “[t]he party claiming, as an affirmative defense to liability for breach of contract, that an agency relationship existed must demonstrate that the agency relationship and the identity of the principal were disclosed” … . “A principal is considered to be ‘disclosed’ if, at the time of a transaction conducted by an agent, the other party to the contract had notice that the agent was acting for the principal and of the principal’s identity” … .

… [T]here was no evidence that the existence of 1719 Hylan, LLC, was disclosed to the plaintiffs at the time of the loan. The plaintiffs’ principal testified that the defendant told her that he was the owner of the property, that there was no discussion that the construction project was on behalf of a company, and that the defendant never told her that the loan was for a company. The defendant presented no evidence to the contrary. Therefore, the defendant failed to meet his burden of demonstrating that the plaintiffs knew that he was acting on behalf of 1719 Hylan, LLC. 710 E Elizabeth Ave, LLC v Jhong Kim, 2026 NY Slip Op 05756, Second Department 10-7-26

Practice Point: In this breach of contract action, defendant argued he signed the contract as an agent for a limited liability company and was not personally liable. But defendant did not submit any proof the plaintiff was given notice he was signing as an agent for a company. Therefore the agency defense was rejected.

 

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DEFENDANT REAR DRIVER PROVIDED A NONNEGLIGENT EXPLANATION FOR THE REAR-END COLLISION PRECLUDING SUMMARY JUDGMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant in this rear-end collision case raised a question of fact precluding summary judgment. Defendant alleged plaintiff abruptly changed lanes without signaling and came to a sudden stop in front of defendant’s vehicle:

… [A] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision to rebut the inference of negligence” … . “A nonnegligent explanation may include that a vehicle made a sudden lane change in front of a defendant’s vehicle, forcing the defendant to stop suddenly” … .

Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting an affidavit wherein she averred that the rear of her stopped vehicle was struck by the front of the defendants’ vehicle … . However, in opposition, the defendants raised triable issues of fact as to the existence of a nonnegligent explanation for striking the rear of the plaintiff’s vehicle. According to the defendant driver’s affidavit, the accident occurred when the plaintiff’s vehicle abruptly changed lanes, without signaling, and immediately came to a sudden stop in front of the defendants’ vehicle … . Johnson v Payne, 2026 NY Slip Op 05775, Second Dept 10-7-26

Practice Point: Consult this decision for an example of a “nonnegligent” explanation for a rear-end collision which precluded summary judgment.​

 

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A PRECLUSION ORDER DOES NOT HAVE THE SAME EFFECT AS STRIKING THE ANSWER; THE DEFENDANT CAN STILL PRESENT LEGAL ARGUMENTS SUPPORTING A MOTION TO DISMISS; HERE THE DEFENDANT CITY AMBULANCE SERVICE WAS PERFORMING A GOVERNMENTAL FUNCTION WHEN DECEDENT WAS INJURED AND WAS ENTITLED TO IMMUNITY IN THE NEGLIGENCE ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the city was entitled to dismissal of the negligence action because the ambulance service was performing a governmental function and no special duty was owed by the city to the decedent. Here the city had failed to meet its discovery obligations and Supreme Court precluded the city from offering evidence. However the city was entitled to make legal arguments in an attorney affirmation to support its motion to dismiss the complaint:

… [A]n order precluding the submission of evidence, unlike the striking of an answer, does not relieve the plaintiff of his or her obligation to establish a prima facie case in the first instance … . The purpose of a preclusion order is to make the demanding party whole … . To further preclude the defendants from asserting defenses which require only general denials, despite the existence of a genuine factual dispute, deprives the defendants of their day in court and gives the plaintiff more relief than is warranted by the defendants’ failure to comply with their disclosure obligations … . Thus, contrary to the plaintiff’s contention, the order … precluding the defendants “from offering any evidence . . . and/or affidavits in support of or in opposition to any dispositive motion,” did not preclude the defendants from submitting legal arguments in an attorney affirmation or from referring to the parties’ pleadings.

When a municipality provides ambulance service by emergency medical technicians in response to a 911 call for assistance, it performs a governmental function and cannot be held liable unless it owed a special duty to the injured party … . As relevant here, a municipality will be held to have voluntarily assumed a duty or special relationship with the plaintiff where there is (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking … . It is the plaintiff’s obligation to prove that the government defendant owed a special duty of care to the injured party because the duty is an essential element of the negligence claim itself … . Davis v City of New York, 2026 NY Slip Op 05766, Second Dept 10-7-26

Practice Point: Here the city defendant failed to meet its discovery obligations and the court issued an order precluding the city from presenting evidence. However the city was not precluded from making legal arguments in support of its successful motion to dismiss.

Practice Point: The city was entitled to immunity because the city ambulance service was performing a governmental function and there was no special relationship between the city and the decedent.

 

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IT WAS NOT CLEAR WHICH EMBRYOS, CREATED BY IN VITRO FERTILIZATION DURING THE PARTIES’ MARRIAGE, WERE ENCOMPASSED BY THE PARTIES’ STIPULATION THAT PLAINTIFF SHOULD HAVE EXCLUSIVE POSSESSION AND CONTROL OF THEM; THEREFORE, PLANTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED; THERE WAS A COMPREHENSIVE DISSENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court’s grant of summary judgment to plantiiff, over an extensive and comprehensive dissent, determined there were questions of about which frozen embryos were the subject of a stipulation in which the parties agreed plaintiff should have exclusive possession and control of the embryos created by in vitro fertilization (IVF). The parties were married at the time of the in vitro fertilization and subsequently divorced:

Here, the parties’ failure to establish from which IVF cycle the disputed embryos derived and to submit an agreement that provides for the cryopreservation and disposition of the embryos formed in the November 2021 IVF cycle precludes the award of judgment as a matter of law. Significantly, while the parties have relied upon the March 2023 agreement in fashioning their arguments, they did not stipulate that the March 2023 agreement controlled the dispute. Further, by its terms, the March 2023 agreement did not pertain to previously cryopreserved embryos, and the parties have stipulated that the embryos in dispute were formed in 2021. Thus, the evidence submitted on the defendant’s motion and the plaintiff’s cross-motion established that the March 2023 agreement did not control the disposition of the embryos in dispute. “On this record, we must decline the parties’ invitation to award judgment as a matter of law” … .Millender-Rubin v Rubin, 2026 NY Slip Op 05780, Second Dept 10-7-26

Practice Point: Consult this decision for insight into the issues raised in a divorce proceeding by embryos created by in vitro fertilization during the marriage.

 

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PLAINTIFF DID NOT DEMONSTRATE THE PROCESS SERVER ACTED WITH “DUE DILIGENCE” BEFORE RESORTING TO “NAIL AND MAIL” SERVICE; THE COURT THEREFORE DID NOT ACQUIRE PERSONAL JURISDICTION OVER DEFENDANT; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff did not demonstrate the process server acted with “due diligence” before resorting to “nail and mail” service:

“Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308” … . “Service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) and (2) cannot be made with due diligence” … . “To satisfy the ‘due diligence’ requirement, the plaintiff must demonstrate that the process server made genuine inquiries about the defendant’s whereabouts and place of employment” … . “The failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void” … .

Here, the plaintiff failed to demonstrate that the process server acted with due diligence before relying on affix and mail service pursuant to CPLR 308(4) … . The process server resorted to service pursuant to CPLR 308(4) after only twice attempting personal service at the defendant’s residence during weekday hours when it could reasonably have been expected that the defendant was either working or in transit to or from work … . Moreover, there was no evidence that the process server made any genuine inquiries about the defendant’s whereabouts and place of business … . Citibank, N.A. v Sagastume, 2026 NY Slip Op 05765, Second Dept 10-7-26

Practice Point: Consult this decision for a clear explanation of the criteria for the exercise of due diligence by a process server. Here the process server made no inquiries about the defendant’s whereabouts or place of business before resorting to “nail and mail.”

 

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THE DEATH OF A DEFENDANT IN THIS FORECLOSURE PROCEEDING AFFECTED THE MERITS OF THE ACTION; THEREFORE THE DEATH TRIGGERED A STAY OF THE PROCEEDINGS PENDING SUBSTITUTION OF A REPRESENTATIVE; HERE ALL THE DETERMINATIONS OF SUPREME COURT MADE AFTER DEFENDANT’S DEATH WERE A NULLITY (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined the death of a defendant affected the merits of the action triggering a stay of all proceedings. Therefore the determinations made by Supreme Court after defendant’s death were a nullity:

“Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a personal representative for the decedent” … . “Any determination rendered without such a substitution is ordinarily deemed a nullity” … . However, “if a party’s death does not affect the merits of a case, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution” … . “A judgment of foreclosure and sale entered against a defendant is final as to all questions at issue between the parties, and concludes all matters of defense which were or might have been litigated in the foreclosure action” … . However, “[a] judgment of foreclosure and sale does not divest the mortgagor of its title and interest in the property until the sale is actually conducted” … .

Here, the decedent answered the complaint and was entitled to service of all papers in the action, including any motions to extend the time in which to conduct the foreclosure sale and any notice of sale (see CPLR 2103 …). … [T]he decedent’s death did affect the merits of this action and triggered a stay of all proceedings in the action pending substitution of a legal representative … . Any determinations made by the Supreme Court after the decedent’s death were a nullity, including the amended order and judgment of foreclosure and sale and the orders appealed from … . Real Estate Mtge. Network, Inc. v Perez, 2026 NY Slip Op 05562, Second Dept 9-30-26

Practice Point: Where a defendant’s death affects the merits of the action, the action is stayed pending substitution of a representative.

Practice Point: All rulings made while the action was stayed were a nullity.

Practice Point: A judgment of foreclosure and sale does not divest a mortgagor of title to and interest in the property until the sale is conducted.

 

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MOTHER WAS ENTITLED TO VACATION OF THE NEGLECT FINDING, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Family Court in this neglect proceeding, determined mother was entitled to modification of the order of fact-finding and disposition granting a suspended judgment and vacating the finding of neglect. The neglect finding stemmed from mother’s failure to take medication to treat her mental illness:

Family Court Act § 1061 provides that for good cause shown, a court may set aside, modify, or vacate any order issued in the course of a child protective proceeding … . As with an initial order, the modified order must reflect a resolution consistent with the best interests of the child after consideration of all relevant facts and circumstances, and must be supported by a sound and substantial basis in the record … . “Courts have identified four factors to consider when determining whether to vacate a finding of neglect: ‘(1) respondent’s prior child protective history; (2) the seriousness of the offense; (3) respondent’s remorse and acknowledgment of the abusive/neglectful nature of his or her act; and (4) respondent’s amenability to correction, including compliance with court-ordered services and treatment'” … .

Here, the mother had no prior child protective history; the record demonstrates the mother’s compliance with services, medication, and therapy; and the mother’s therapist reported that the mother “shows good insight about the need for treatment.” Further, a suspended judgment leading to vacatur of the neglect finding was in the child’s best interests because the mother would have access to employment opportunities in childcare … . Matter of Naila P. (Althea P.), 2026 NY Slip Op 05540, Second Dept 9-30-26

Practice Point: Here mother’s neglect finding was vacated based upon her compliance with mental health services, medication and therapy. The neglect finding stemmed from her failure to take medication to treat her mental illness.

 

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THE PARTIES IN THIS FAMILY OFFENSE PROCEEDING HAD NO DIRECT RELATIONSHIP, DEPRIVING FAMILY COURT OF JURISDICTION; THERE MUST BE AN “INTIMATE RELATIONSHIP” BETWEEN THE PARTIES TO CONFER JURISDICTION (SECOND DEPT).

The Second Department, reversing Family Court in this family offense proceeding, determined the petitioner and the appellant (the mother of petitioner’s boyfriend) have no direct relationship. Therefore Family Court did not have jurisdiction over the family offense proceeding (which requires an “intimate relationship”):

Pursuant to Family Court Act § 812(1), the Family Court’s jurisdiction in family offense proceedings is limited to certain prescribed acts that occur “between spouses or former spouses, or between parent and child or between members of the same family or household” … . “[M]embers of the same family or household” include, among others, “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” … . Expressly excluded from the ambit of “intimate relationship” are “casual acquaintance[s]” and “ordinary fraternization between two individuals in business or social contexts” … . Beyond those delineated exclusions, what qualifies as an intimate relationship within the meaning of Family Court Act § 812(1)(e) is determined on a case-by-case basis, and the factors a court may consider include “the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship” … .

Here, the parties have no direct relationship and are connected only through a third party, who is the petitioner’s former boyfriend and the appellant’s son … . Additionally, the parties never resided together and their contact with one another was minimal and related only to a few visits between the appellant and the petitioner’s daughter … . Matter of Monahan v Zindman, 2026 NY Slip Op 05538, Second Dept 9-30-26

Practice Point: Here the parties in this family offense proceeding, petitioner and petitioner’s boyfriend’s mother, had no direct relationship. To confer jurisdiction to Family Court in a family offense matter, the parties must have an “intimate relationship.”

 

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DEFENDANT IN THIS SLIP AND FALL CASE WAS PUT ON NOTICE TO PRESERVE SURVEILLANCE VIDEO AS OF AUGUST 19; DEFENDANT’S EMPLOYEE AVERRED THAT THE VIDEO COULD HAVE BEEN AUTOMATICALLY DESTROYED BEFORE OR AFTER AUGUST 19; THEREFORE THE SPOLIATION ISSUE MUST BE DECIDED BY THE TRIER OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant (Jet Blue) destroyed video evidence of plaintiff’s slip and fall. Therefore, whether there was spoliation of evidence is to be decided by the trier of fact:

… [T]he plaintiff demonstrated that Jet Blue was on notice as of August 19, 2021, that it had an obligation to preserve the video surveillance footage … . Moreover, the affidavit of Jet Blue’s employee raised an issue of fact as to whether the video surveillance footage was destroyed before or after Jet Blue’s obligation to preserve it arose on August 19, 2021. Under these circumstances, a triable issue of fact exists as to whether spoliation of evidence occurred, which issue should be determined by the trier of fact … . The appropriate sanction for any such spoliation of evidence would be an adverse inference charge against Jet Blue, as the destruction of any video surveillance footage of the incident did not deprive the plaintiff of the opportunity to prove her case … . Fernandez v Port Auth. of N.Y. & N.J., 2026 NY Slip Op 05518, Second Dept 9-30-26

Practice Point: Sometimes spoliation of evidence is a jury question.​