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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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THE JUDGE DID NOT COMPLY WITH THE REQUIRED PROCEDURES FOR FINDING A PARTY IN CONTEMPT AND IMPOSING SANCTIONS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge did not comply with the rules for finding a party in contempt and imposing sanctions:

Pursuant to Judiciary Law § 756, a contempt application must be in writing, must be made upon at least 10 days’ notice, and must contain on its face the statutory warning that “FAILURE TO APPEAR IN COURT MAY RESULT IN YOUR IMMEDIATE ARREST AND IMPRISONMENT FOR CONTEMPT OF COURT” … . Here, among other things, the defendants were never provided with the warning required by Judiciary Law § 756 … . Further, an order requiring the performance of an act may not include an additional clause stating that in default thereof, the party will be guilty of contempt of court … .

The Supreme Court also should have granted that branch of the defendants’ motion which was to vacate so much of the … order as conditionally imposed sanctions upon the defendants and their counsel. “A court does not have the authority to impose a penalty or sanction absent enabling legislation or court rule authorizing the penalty or sanction” … . Here, the court cited to no legislation or court rule to support the imposition of sanctions. To the extent that the court relied upon 22 NYCRR 130-1.1, it should not have done so. Among other reasons, the … order did not set forth the conduct on which the imposition of sanctions was based and the reason why the court found the conduct to be frivolous … . Yong Hong Xie v Lan Chen, 2026 NY Slip Op 01819, Second Dept 3-25-26

Practice Point: Consult this decision for insight into the procedural rules a court must follow to find a party in contempt and impose sanctions.

 

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THE JUDGE DID NOT CONSIDER PLAINTIFF’S MOTION PAPERS TO THE EXTENT THE COURT-IMPOSED PAGE-LIMIT WAS EXCEEDED; REMITTED FOR A NEW DETERMINATION OF THE MOTIONS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the judge’s refusal to read plaintiff’s motion papers to the extent the court-imposed page-limit was exceeded was unreasonable. Having accepted plaintiff’s papers, the court should have considered them in their entirety:

“It is appropriate for courts to set page or word limits on submissions, and to reject papers that fail to comply with those limits” … . However, “[i]t is not reasonable . . . for a court to accept papers that do not comply with the court’s page limitation and then refuse to read the noncompliant pages, denying, as a consequence, substantive relief that may be warranted” … . Having accepted the plaintiff’s papers, the Supreme Court should have considered the entirety of the plaintiff’s affirmation and memorandum of law submitted in support of the plaintiff’s opposition to the defendants’ motion and in support of the cross-motion. Accordingly, we remit the matter to the Supreme Court … for a new determination on the merits of the defendants’ motion and the plaintiff’s cross-motion. Weingarten v Kopelowitz, 2026 NY Slip Op 01816, Second Dept 3-25-26

Practice Point: If the court accepts motion papers which exceed the court-imposed page-limit, the court must consider the papers in their entirety.

 

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THE JURY’S CONCLUSION THAT THE BURGLARY VICTIM SUFFERED “PHYSICAL INJURY” WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE ONLY EVIDENCE WAS THE VICTIM’S TESTIMONY HE SUFFERED PAIN AT 6 ON A SCALE OF 1 TO 10 (SECOND DEPT).

The Second Department, vacating defendant’s burglary convictions, applying a weight-of-the-evidence analysis, determined the proof the victim suffered “physical injury,” an element of the offenses, was insufficient:

The evidence, properly weighed, does not prove beyond a reasonable doubt that the victim sustained a physical injury … . Although the victim testified that he suffered pain as high as 6 on a scale of 1 to 10, he also testified that he was “in a little pain. Wasn’t much pain, but [he] was in pain.” There were no photographs of the victim’s injury and the victim testified that he never requested medical attention. Therefore, under the circumstances of this case, the verdict finding the defendant guilty of burglary in the first degree under Penal Law § 140.30 and burglary in the second degree under Penal Law § 140.25(1)(b), based solely upon the victim’s subjective testimony, was against the weight of the credible evidence … . People v Carroll, 2026 NY Slip Op 01528, Second Dept 3-18-26

Practice Point: A burglary victim’s testimony that he suffered pain at 6 on a scale of 1 to 10 did not support the jury’s finding that the victim suffered “physical injury” under a weight-of-the-evidence analysis by the appellate court.​

 

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THE MEDICAL RECORDS PROVIDED DEFENDANT HOSPITAL WITH TIMELY NOTICE OF THE FACTS UNDERLYING THE MEDICAL MALPRACTICE CAUSE OF ACTION; THEREFORE PLAINTIFF’S APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s application for leave to file a late notice of claim in this medical malpractice action should have been granted. The medical records provided the defendant hospital with sufficient timely notice of the cause of action:

“Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury” … . “Where the alleged malpractice is apparent from an independent review of the medical records, those records constitute ‘actual knowledge of the facts constituting the claim'” … .

Here, in support of his motion, the plaintiff submitted, inter alia, medical records and an affidavit of a physician who reviewed the records and concluded that there had been a departure from accepted medical practice … . Inasmuch as the medical records, upon independent review, suggested injury attributable to medical malpractice, the medical records provided the defendant with actual knowledge of the essential facts constituting the claim … . Kazeem v New York City Health & Hosps. Corp. (Queens Hosp. Center), 2026 NY Slip Op 01497, Second Dept 3-18-26

Practice Point: The medical records themselves can be deemed to have provided a defendant hospital with timely notice of the facts underlying a medical malpractice action such that an application for leave to file a late notice of claim should be granted.

 

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HERE IN THIS TRAFFIC ACCIDENT CASE THE DRIVER OF THE VEHICLE IN WHICH PLAINTIFF WAS A PASSENGER DIED DURING THE PENDENCY OF THE ACTION; PLAINTIFF PASSENGER HAD SUED DECEDENT DRIVER AND THE DEFENDANT TRUCKING COMPANY; THE ATTORNEYS FOR THE DECEDENT DRIVER DID NOT HAVE THE AUTHORITY TO MOVE TO DISMISS THE COMPLAINT AGAINST THE DECEDENT DRIVER; THE DEFENDANT TRUCKING COMPANY DID NOT GIVE THE INTERESTED PARTIES THE REQUIRED NOTICE OF ITS MOTION TO DISMISS BASED UPON THE DRIVER’S DEATH; AND PLAINTIFF PASSENGER DID NOT COMPLY WITH THE PROCEDURES FOR THE APPOINTMENT OF THE PUBLIC ADMINISTRATOR TO REPRESENT THE DECEDENT DRIVER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined (1) the attorneys for the decedent driver did not have the authority to move to dismiss plaintiff-passenger’s action against the decedent because the decedent’s death during the pendency of the action divested the court of jurisdiction, (2) the defendant’s motion to dismiss based upon the driver’s death should not have been granted because defendant did not notify the parties with an interest in decedent’s estate of the motion, and (3) plaintiff-passenger’s cross-motion to appoint the Public Administrator to represent the driver’s estate should not have been granted because plaintiff did not notify parties interested in the estate of the cross-motion and did not otherwise follow the procedures for such an appointment:

“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a). Moreover, any determination rendered without such substitution will generally be deemed a nullity” … . The death of a party terminates his or her attorney’s authority to act on behalf of the deceased party … . * * *

“CPLR 1021 defines the procedural mechanisms for seeking a substitution of successor or representative parties, and for the dismissal of actions where substitutions are not timely sought” … . CPLR 1021 provides, in pertinent part, that “[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made.” Further, “a motion to dismiss pursuant to CPLR 1021 requires that notice be provided to persons interested in the decedent’s estate” … . * * *

… [T]he plaintiff failed to sufficiently demonstrate that she provided notice of her cross-motions to persons interested in [the] estate … . Moreover, the plaintiff “failed to demonstrate the steps [she] had taken to secure the appointment of a personal representative in the appropriate Surrogate’s Court or that resort to the appropriate Surrogate’s Court was otherwise unfeasible . . . and otherwise failed to adequately demonstrate why the appointment of a temporary administrator was needed to avoid undue delay and prejudice” … . Ford v Luckain, 2026 NY Slip Op 01493, Second Dept 3-18-26

Practice Point: Consult this decision for insight into the procedures which must be followed when a party in a pending traffic-accident case dies, divesting the court of jurisdiction and curtailing the authority of the decedent’s attorneys to act on decedent’s behalf.

 

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PLAINTIFF WAS A CO-PILOT OF A HELICOPTER USED TO PROVIDE AN AERIAL PLATFORM FOR WORK ON POWER LINES; THE HELICOPTER STRUCK A POWER LINE AND PLAINTIFF JUMPED FROM THE HELICOPTER FROM A HEIGHT OF 75 FEET; THE LABOR LAW 240(1) AND 241(6) STRICT LIABILITY CAUSES OF ACTION WERE PREEMPTED BY THE FEDERAL AVIATION ACT (FAA); THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED; RATHER THE FEDERAL STANDARD OF CARE SHOULD BE APPLIED TO THOSE CAUSES OF ACTION (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Ford, determined the Labor Law 240(1) and 241(6) six causes of action were preempted by the Federal Aviation Act (FAA) but the negligence and Labor Law 200 causes of action should not have been dismissed because the federal standard of care can be applied to them. Plaintiff was the co-pilot of a helicopter which was being used to provide an aerial platform for work on power lines. The helicopter struck a power line and plaintiff jumped out of the helicopter from a height of 75 feet:

Under the federal rules, “[t]he pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft” (14 CFR 91.3[a] …). Various federal courts have held that the pilot thereby has the “sole responsibility to determine whether it is safe or unsafe to undertake the proposed flight” … . * * *

Additionally, under the federal rules, “[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another” (14 CFR 91.13[a]). This rule is “[c]entral” to the FAA’s overarching standard of care …. Common-law negligence cases require a more stringent standard of care, “that of a reasonable person under the same or similar circumstances” … . Labor Law § 200 codifies the common-law negligence standard … , while Labor Law §§ 240(1) and 241(6) “subject contractors and owners to absolute strict liability” … . The standards of care underlying the four sources of liability alleged by the plaintiff—i.e., liability for common-law negligence and under Labor Law §§ 200, 240(1), and 241(6)—thereby conflict with, and are preempted by, the federal recklessness standard. …

Where applicable, the effect of preemption of a state standard of care is not to preclude recovery or “to deprive Plaintiffs of their state remedies, but rather, to substitute a federal standard of care for New York’s reasonably-prudent-person standard” … . Fabia v Power Auth. of the State of N.Y., 2026 NY Slip Op 01489, Second Dept 3-18-26

Practice Point: Here, although the Federal Aviation Act (FAA) preempted the strict liability Labor Law 240(1) and 241(6) causes of action in this helicopter-accident case, the negligence and Labor Law 200 causes of action should not have been dismissed because the federal standard of care can be applied to them.

Practice Point: Consult this opinion for an in-depth analysis of the issues raised by preemption of state Labor Law and negligence claims stemming from a helicopter accident by the Federal Aviation Act (FAA).

 

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THE ATTORNEY REPRESENTED PLAINTIFF DRIVER AND PLAINTIFF PASSENGERS IN THIS REAR-END COLLISION CASE; THE COUNTERCLAIM FOR INDEMNIFICATION AGAINST PLAINTIFF DRIVER CREATED A “PECUNIARY” CONFLICT OF INTEREST BETWEEN PLAINTIFF DRIVER AND PLAINTIFF PASSENGERS; THE ATTORNEY WAS DISQUALIFIED FROM REPRESENTING ALL THE PLAINTIFFS (FIRST DEPT).

The Second Department, reversing Supreme Court, determined the attorney, Gambone, should have been disqualified from representing the plaintiff driver and the plaintiff-passengers in this rear-end collision case. The defendant asserted a counterclaim for indemnification against plaintiff driver, which created a “pecuniary” conflict of interest between the driver and the passengers. It is not clear from the decision why Gambone was precluded from representing the passengers and well as the driver:

… [T]he defendants demonstrated that Gambone’s representation of both the plaintiff driver and the passengers created a conflict of interest … . Although the passengers contend that there was no conflict of interest because the plaintiff driver, whose vehicle allegedly was struck in the rear while he was stopped at a red traffic signal, was not at fault in the happening of the accident, the pecuniary interests of the plaintiff driver conflicted with those of the passengers once the defendants asserted the counterclaim against the plaintiff driver … . Moreover, under the circumstances of this case, the defendants sufficiently demonstrated that Gambone should be disqualified from continuing to represent any plaintiffs in this action … . Diaz v Gomez, 2026 NY Slip Op 01487, First Dept 3-18-26

Practice Point: Even though this was a rear-end collision case and it is not clear that plaintiff driver was negligent, the defendant’s counterclaim against plaintiff driver for indemnification created a “pecuniary” conflict of interest between plaintiff driver and plaintiff passengers. Therefore the attorney was disqualified from representing both plaintiff driver and plaintiff passengers. For reasons which are not provided in the decision, the attorney was disqualified from representing all of the plaintiffs.​

 

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PLAINTIFF DID NOT KNOW WHAT CAUSED HER TO SLIP ON A STAIRWAY STEP BUT SHE TESTIFIED SHE LOOKED FOR SOMETHING TO HOLD ONTO AND THERE WAS NO HANDRAIL; THERE WAS A QUESTION OF FACT WHETHER THE ABSENCE OF A HANDRAIL WAS A PROXIMATE CAUSE OF HER FALL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this stairway slip and fall case should not have been granted. Although plaintiff did not know what caused her to slip on the step, she testified she “wanted something to hold on to” but there was no handrail:

Although the plaintiff testified that she did not know what caused her to slip on the step, she also testified that she “wanted to hold onto something,” but she “didn’t have anything to hold onto.” Even if the plaintiff’s fall was precipitated by a misstep, her testimony that she looked for something to hold onto, but there was nothing there, presented “an issue of fact as to whether the absence of a handrail was a proximate cause of her injury” … . Flores v 1298 Grand, LLC, 2026 NY Slip Op 01340, Second Dept 3-11-26

Practice Point: Here plaintiff’s testimony that she did not know what caused her to slip on a stairway step did not warrant summary judgment in defendant’s favor. There was no handrail and plaintiff testified she “looked for something to hold onto.” Therefore a question of fact was raised about whether the absence of a handrail rendered the stairway unsafe and was a proximate cause of the fall.

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