The causes of action arising from negligent failure to diagnose cancer accrued on October 23, 2014, when the defendants failed to advise [plaintiff] to submit to additional testing, such as a mammogram. However, the 2018 enactment also includes a provision providing for the revival of certain causes of action, such that an action may be commenced within six months after the effective date, i.e., by July 31, 2018, when it alleges a failure to diagnose cancer or a malignant tumor, and when it became time-barred within 10 months prior to the effective date of the statute—January 31, 2018, that is, on or after March 31, 2017 (see L 2018, ch 1, § 4…). Here, the causes of action qualify for revival pursuant to that provision, as they became time-barred in April 2017, within the 10-month period prior to the act’s effective date, and this action was commenced on June 11, 2018, prior to the July 31, 2018 deadline … . Rhodes v Dilena, 2026 NY Slip Op 04444, Second Dept 7-15-26

Practice Point: Consult this decision for an explanation of the application of the discovery rule enacted in 2018 providing for the revival of a medical malpractice action alleging negligent failure to diagnose cancer after the statute of limitations expired.

The defendant challenged the People’s use of a peremptory challenge pursuant to Batson v Kentucky (476 US 79) with respect to the challenge to strike the third Hispanic prospective juror. The defendant contended that the People’s prior use of a peremptory challenge to a Hispanic prospective juror in the first round of jury selection and the People’s challenges to the two prospective Hispanic jurors in the second round were racially motivated. The defendant pointed out that the People moved to strike the only three Hispanic prospective jurors. In response to the defendant’s challenge, the County Court required the defendant to articulate an additional reason as to why the defendant contended that the People’s exercise of its peremptory challenge was racially motivated. Defense counsel essentially reiterated his contentions. Thereafter, following the People’s articulation of a race-neutral reason for their exercise of each of the three challenges, the court denied the defendant’s Batson challenge on the ground that the defendant did not carry his prima facie burden. The court failed to reach step three of Batson wherein the burden shifts to the defendant to argue a basis as to why the reasons proffered by the People were pretextual. * * *

… [T]he defendant satisfied step one of Batson … . Accordingly, at that point, the burden shifted to the People to proffer race-neutral explanations for exercising their peremptory challenges to eliminate those prospective jurors … . Thereafter, the court failed to allow the defendant to challenge whether the reasons proffered, although facially neutral, were pretextual and not genuine reasons for the challenges … . People v Williams, 2026 NY Slip Op 04440, Second Dept 7-15-26

Practice Point: Consult this decision for a clear explanation of the three-step procedure for assessing a Batson challenge to the People’s exercise of a peremptory challenge.​

“When a foster care agency brings a proceeding to terminate parental rights on the ground of permanent neglect, it must, as a threshold matter, prove by clear and convincing evidence that it has fulfilled its statutory duty to exercise diligent efforts to encourage and strengthen the parent-child relationship” (… see Social Services Law § 384-b[7][a]). “Those efforts must include counseling, making suitable arrangements for parental access, providing assistance to the parents to resolve the problems preventing the child’s discharge, and advising the parents of the child’s progress and development” … . “An agency must always determine the particular problems facing a parent with respect to the return of his or her child and make affirmative, repeated, and meaningful efforts to assist the parent in overcoming these handicaps” … .

Here, the petitioner failed to meet its initial burden of establishing by clear and convincing evidence that it exercised diligent efforts to strengthen the parental relationship between the father and the children … . The evidence adduced at the fact-finding hearing failed to establish that the petitioner arranged any parental access between the father and the children, referred the father to any services, or assisted the father with obtaining suitable housing. Matter of Elijah L. Jr. (Elijah L.), 2026 NY Slip Op 03963, Second Dept 6-24-26

Practice Point: In a termination-of-parental-rights proceeding the agency must demonstrate that diligent efforts to strengthen the parent-child relationship were made. Here the proof of diligent efforts was lacking.

The claimants served the claim upon the Office of the Attorney General by regular first-class mail. * * *

… [W]here the claim sought only to recover damages for the State’s appropriation of the claimants’ property, service upon the Attorney General by personal service or certified mail was not required … .

Court of Claims Act § 10 reflects a similar unique exception for appropriation claims. While most types of claims must be both “filed and served upon the attorney general” to be properly commenced within the time prescribed by the statute … , a “claim for the appropriation by the state of lands” does not require service upon the Attorney General within the statutory time limit … . Port Grove Assoc. v State of New York, 2026 NY Slip Op 03990, Second Dept 6-24-26

Practice Point: Consult this decision for a detailed discussion of the service requirements for a Court of Claims action seeking damages for the State’s appropriation of claimant’s property. Failure to effect personal service on the Attorney General is not a jurisdictional defect.

… [T]he encounter began as a level two intrusion, with the officers parking and exiting their vehicle, stating “police,” and asking the defendant to stop … . The officers’ pursuit of the defendant constituted a level three intrusion, requiring a reasonable suspicion that the defendant was involved in a felony or misdemeanor … .. Here, however, the circumstances, which included the defendant’s actions of walking up and down the driveways of 105-31 and 105-33 Farmers Boulevard and across a lawn and toward the rear of a residence on 109th Avenue, “although not inconsistent with culpable [conduct,] are also susceptible of many innocent interpretations” … , and were, “[a]t most . . . equivocal and suspicious” … . Importantly, the officers did not observe the defendant looking into any houses or backyards, and did not observe him carrying or attempting to conceal any tools or weapons. Therefore, the defendant’s actions preceding his interaction with the officers and his flight therefrom did not support a reasonable suspicion of particularized criminal action … . People v Bryant, 2026 NY Slip Op 03976, Second Dept 6-24-25

Practice Point: Walking up and down residential driveways, carrying nothing and not looking into houses, justified exercise of the common law right of inquiry by the police. But defendant’s immediate flight from the police did not justify pursuit.

“‘Section 7-210 of the Administrative Code of the City of New York unambiguously imposes a nondelegable duty on certain real property owners to maintain city sidewalks abutting their land in a reasonably safe condition'” … . “However, this liability-shifting provision does not apply to ‘one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes'” … . “The statute does not expressly contain a primary residence requirement as part of the owner-occupied exemption, but the term ‘owner occupied’ generally is used to mean that the owner regularly occupies the property as a residence” … . Although “owner occupied” is not defined in the statute, it is clearly a lower standard than that of a primary residence. Furthermore, “[t]he purpose of the exception in the Code is to recognize the inappropriateness of exposing small-property owners in residence, who have limited resources, to exclusive liability with respect to sidewalk maintenance and repair” … .

The Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them. The defendants failed to establish, prima facie, that they were entitled to the exemption from liability under Administrative Code § 7-210(b). Although the defendants submitted proof that they are the owners of the subject property, which is a one-family home, they failed to eliminate triable issues of fact as to whether the property was “owner occupied” within the meaning of the statute … . Mantinaos v City of New York, 2026 NY Slip Op 03957, Second Dept 6-24-26

Practice Point: Consult this decision for insight into the meaning of “owner occupied” in the NYC Administrative Code such that the sidewalk-maintenance obligation does not apply.

Granting prohibition here would constitute improper collateral interlocutory review. This point is underscored by the Legislature’s amendment of CPL 450.20 to permit the People to appeal as of right from the portion of an order dismissing an accusatory instrument or some of its counts pursuant to CPL 245.80(2). In enacting this amendment, the Legislature chose to limit the types of appeals available to the People and did not permit the People to appeal from orders granting other remedies or sanctions under CPL 245.80(2), including orders precluding evidence, regardless of whether such orders would prevent the People from prosecuting a case. Contrary to the petitioner’s contentions, although the nonappealability of an order may be considered as a factor in favor of prohibition as part of the second step of the two-tiered analysis, “nonreviewability by way of appeal alone, does not provide a basis for reviewing error by collateral proceeding in the nature . . . of prohibition”  … .

Since a writ of prohibition does not lie, the Supreme Court should have denied that branch of the petition which was to prohibit the enforcement of the order of preclusion.  Matter of Rocah v McCarthy, 2026 NY Slip Op 03967, Second Dept 6-24-26

Practice Point: A writ of prohibition does not lie to prohibit the enforcement of an order precluding evidence becasue the production of discovery by the People was deemed untimely.

… [T]he plaintiff satisfied the second prong of the relation-back test with respect to the causes of action sounding in negligence and gross negligence, as the plaintiff established that the proposed defendants and the original defendants were united in interest as to those causes of action. “As a general rule, ‘a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor’s negligent acts'” … . However, this general rule is subject to various exceptions, including where the work performed is inherently dangerous … . In this case, the amended complaint and the proposed second amended complaint alleged sufficient facts demonstrating that the work being performed was inherently dangerous and, thus, the original defendants could be held vicariously liable for the negligent acts or omissions of the proposed defendants … . Further, the plaintiff satisfied the third prong of the relation-back test, as the plaintiff demonstrated that the proposed defendants 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 brought against them as well … . Accordingly, the Supreme Court should have granted that branch of the plaintiff’s motion which was pursuant to CPLR 3025(b) for leave to amend the amended complaint to add the proposed defendants as defendants with respect to the causes of action sounding in negligence and gross negligence … . Crossbay Assoc., LLC v Singh, 2026 NY Slip Op 03941, Second Dept 6-24-26

Practice Point: A party can be vicariously liable for the work done by an independent contractor if the work is “inherently dangerous.” The excavation work at issue in this case was deemed inherently dangerous.

“Among the statutory requirements [set forth in CPLR 2214(a) and (b)] is that notices of motion set forth ‘the relief demanded and the grounds therefor.’ The failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders a resulting order void” … . In other words, “[a] court lacks jurisdiction to grant relief against a defaulting party where that relief is not requested in the moving papers” … .

Here, since the plaintiff did not move for leave to enter a default judgment against Molina, the Supreme Court should not have, sua sponte, granted that relief … . As the court lacked jurisdiction to grant such relief … , so much of the order … , as, sua sponte, granted leave to enter a default judgment against Molina was rendered void … , “‘warranting vacatur pursuant to CPLR 5015(a)(4)'” … . As to the court’s reliance on the language in the notice of motion seeking “such other and further relief that this Court deems just and proper,” this Court has explicitly held that courts may not “rely upon general relief clauses in noticed motions—’for such other and further relief the court deems just and proper’—to justify the sua sponte [granting of dispositive relief]” … . Citimortgage, Inc. v Pena, 2026 NY Slip Op 03940, Second Dept 6-24-26

Practice Point: The phrase in motion papers requesting “such other relief as is deemed appropriate” cannot be the basis for dispositive relief.​

… [T]he Supreme Court failed to respond meaningfully to the jury’s request to view all of the infant plaintiff’s MRI images during deliberations … . Although the MRI images were admitted into evidence at trial, the court denied the jury’s request to view the MRI images during deliberations on the ground that viewing them was “beyond the ken of a juror.” … [T]he error deprived the plaintiffs of “substantial justice” with respect to the jury’s finding that Halitsky’s departure was not a substantial factor in causing the infant plaintiff’s injury … . Accordingly, the court should have granted that branch of the plaintiffs’ motion which was pursuant to CPLR 4404(a) to set aside so much of the jury verdict as was in favor of Halitsky …. J.T.M. v Parrinello, 2026 NY Slip Op 03787, Second Dept 6-17-26

Practice Point: Here the judge should not have refused the jury’s request to view MRI images which were in evidence on the ground they were “beyond the ken” of the jury.