You are here: / Second Department

Tag Archive for: Second Department

, , , ,

THE JUDGE IN THIS SIDEWALK SLIP AND FALL CASE FAILED TO ADEQUATELY EXPLAIN TO THE JURY THE DIFFERENT DUTIES OWED BY THE TENANT AND THE OWNER OF THE BUILDING ABUTTING THE SIDEWALK; THE MOTION TO SET ASIDE THE PLAINTIFF’S VERDICT SHOULD HAVE BEEN GRANTED; IN ADDITION, THE SECOND DEPARTMENT HELD DAMAGE AWARDS FOR PLAINTIFF’S INJURED ANKLE WERE EXCESSIVE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to set aside the verdict in this slip and fall case should have been granted. The defendants are the owner and tenant in the building abutting the allegedly defective sidewalk where plaintiff fell. The judge’s charge to the jury did not adequately explain how defendants’ duties differed as tenant and landowner. The Second Department also held the damage awards were excessive:

… Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 4404(a) to set aside the verdict on the issue of liability in the interest of justice and for a new trial on the issue of liability. In charging the jury, the court failed to differentiate between White Castle [tenant] and Asaro [landowner], and failed to identify how their duties differed as tenant and as landowner, respectively. Thus, the court did not “adequately convey[ ] the sum and substance of the applicable law to be charged” … . Due to the possibility that this conflation may have prejudiced either defendant or both defendants, each defendant is entitled to a new trial on the issue of liability against it … . Rendon v White Castle Sys., Inc., 2025 NY Slip Op 04925, Second Dept 9-10-25

Practice Point: Here the jury instructions did not clearly explain the different duties owed by a tenant versus a landowner with respect to a defective sidewalk abutting the building. The inadequate instructions required that the plaintiff’s verdict in this slip and fall case be set aside.

 

, ,

THE PROVISION OF THE CORRECTION LAW WHICH REQUIRES AN OUT-OF-STATE SEX OFFENDER TO BE CLASSIFIED AS A “SEXUALLY VIOLENT OFFENDER” UPON RESIDING IN NEW YORK, REGARDLESS OF WHETHER THE OUT-OF-STATE OFFENSE WAS VIOLENT, IS UNCONSTITUTIONAL AS APPLIED TO THIS DEFENDANT (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Taylor, determined the Correction Law provision requiring that an out-of-state sex-offender be automatically classified as a “sexually violent offender” upon residing in New York was unconstitutional as applied to the defendant:

Pursuant to Correction Law § 168-a(3)(b), the People … provided notice of their intent to seek a “sexually violent offender” designation for the defendant based on the out-of-state conviction because the defendant was required to register as a sex offender in Florida. * * *

We hold that the foreign registration clause, insofar as applied to the defendant, is not rationally related to a legitimate government interest, and therefore violates his substantive due process rights (see People v Brown, 41 NY3d at 284).

In particular, we agree with the Appellate Division, Fourth Department’s conclusion that, “[D]esignating [a] defendant as sexually violent merely because he [or she] had an out-of-state sex conviction requiring out-of-state registration, regardless of whether that underlying offense is violent—as is currently required by the text of Correction Law § 168-a(3)(b)—bears no rational relationship to the legitimate governmental interest of informing the public of threats posed by sex offenders” (People v Malloy, 228 AD3d at 1289).” People v Edwards, 2025 NY Slip Op 04922, Second Dept 9-10-25

Practice Point: Here the Correction Law provision requiring that out-of-state sex offenders be classified as “sexually violent offenders” upon residing in New York was deemed unconstitutional as applied to the defendant, whose out-of-state offense was nonviolent.​

 

, ,

A PROPER FOUNDATION WAS NOT LAID FOR THE BUSINESS RECORDS RELIED UPON BY THE PLAINTIFF; THEREFORE THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE WERE NOT MET AND PLAINTIFF’S SUMMARY JUDGMENT MOTION IN THIS BREACH OF CONTRACT ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the business records relied upon by plaintiff in this breach of contract action were not supported by a sufficient foundation. Therefore, under the criteria for the business records exception to the hearsay rule, the documents were inadmissible hearsay and could not support plaintiff’s summary judgment motion:

“‘Records made in the regular course of business are hearsay when offered for the truth of their contents'” … . “When a party relies upon the business records exception to the hearsay rule in attempting to establish its prima facie case, ‘[a] proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures'” … .

In support of its motion for summary judgment on the complaint, the plaintiff submitted an affidavit of Denine Chevillot Knowles, its vice president. Though Knowles attested that she had “personal knowledge of the relevant business practices of Plaintiff,” she did not attest that the records submitted in support of the motion were “made in the regular course of business” and were “needed and relied on in the performance of functions of the business,” that it was “the regular course of such business to make the record[s],” or that the records were “made at or about the time of the event being recorded” … . Thus, Knowles failed to lay a proper foundation for the admission of any records concerning the defendants’ payment history and default … . Accordingly, the plaintiff failed to demonstrate that the records relied upon in the affidavit were admissible under the business records exception to the hearsay rule. HSBC Bank USA, N.A. v Vasishta, 2025 NY Slip Op 04885, Second Dept 9-10-25

Practice Point: Business records are hearsay. To be admissible the criteria for the business records exception to the hearsay rule must be met. Consult this decision for the foundation requirements for the admissibility of business records.​

 

, , , ,

ALTHOUGH PLAINTIFF IN THIS DEFAMATION ACTION WAS ALLOWED TO SUE UNDER A PSEUDONYM, THE TEMPORARY RESTRAINING ORDER PROHIBITING DEFENDANTS FROM REVEALING PLAINTIFF’S IDENTITY TO THIRD PARTIES, INCLUDING WITNESSES AND INVESTIGATORS, WAS AN UNCONSTITUTIONAL PRIOR RESTRAINT OF SPEECH (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the temporary restraining order prohibiting defendants from revealing plaintiff’s identity to third parties in this defamation action was an unconstitutional prior restraint on speech. Plaintiff had been allowed to sue under a pseudonym:

… Supreme Court erred in granting that branch of the plaintiffs’ motion which was for a temporary restraining order prohibiting the defendants from disclosing the plaintiffs’ identities to third parties, sharing any statements or documents regarding the instant action, or discussing the instant action. “A prior restraint on speech is a law, regulation or judicial order that suppresses speech on the basis of the speech’s content and in advance of its actual expression” … . “Any imposition of prior restraint, whatever the form, bears a ‘heavy presumption against its constitutional validity, and a party seeking to obtain such a restraint bears a correspondingly heavy burden of demonstrating justification for its imposition'” … . An injunction issued in the area of First Amendment rights under the United States Constitution “must be tailored as precisely as possible to the exact needs of the case” … . Here, the Supreme Court’s temporary restraining order was overbroad, such that it prevented the defendants from discussing the instant action with third-party witnesses or disclosing the plaintiffs’ names for investigative purposes … . Doe v Eliyas, 2025 NY Slip Op 04876, Second Dept 9-10-25

Practice Point: Consult this decision for insight into when a restraining order prohibiting revealing the identity of a plaintiff suing under a pseudonym is an unconstitutional prior restraint of speech.

 

, ,

DEFENDANT, WHO MOVED TO VACATE THE DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION, SUBMITTED SUFFICIENT EVIDENCE TO WARRANT A HEARING ON WHETHER HE WAS PROPERLY SERVED WITH THE COMPLAINT; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant, who had defaulted in this foreclosure action, was entitled to a hearing on whether he had been properly served with the complaint:

“Ordinarily, a process server’s affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service …”. “A defendant moving to vacate a default pursuant to CPLR 5015(a)(4) must overcome the presumption raised by such an affidavit of service” …. . “While a mere conclusory denial of service will not suffice to rebut a prima facie showing of proper service, the sworn denial, combined with documentary and other evidence supporting such a claim, is sufficient to rebut the plaintiff’s prima facie showing of proper service and to necessitate an evidentiary hearing” … . “If the presumption is rebutted, a hearing is necessary, at which the plaintiff must establish jurisdiction by a preponderance of the evidence” … .

… [T]he defendant demonstrated his entitlement to a hearing on the issue of service through his affidavit and evidentiary submissions. The defendant averred that he has never lived at the address where he was purportedly served on February 28, 2008, and that he lived at a different address, 1222 35th Avenue in Long Island City, from 2004 through February 2008. He submitted proof of his residence at 1222 35th Avenue. Further, he submitted proof that the process server who allegedly served the defendant on February 28, 2008, swore that he served another individual in South Ozone Park at the exact same time. The defendant also submitted evidence that, in 2016, this particular process server’s application to renew his license as an individual process server was denied by the New York City Department of Consumer Affairs on the basis that he had falsified affidavits of service. Since the defendant’s submissions rebutted the presumption of proper service established by the process server’s affidavit, the Supreme Court should have directed a hearing to determine whether personal jurisdiction was acquired over the defendant … . Bank of N.Y. Trust Co., N.A. v Herbin, 2025 NY Slip Op 04865, Second Dept 9-10-25

Practice Point: Consult this decision for the proof requirements for a hearing on whether the court acquired jurisdiction through proper service of the complaint.​

 

, ,

NO FOUNDATION FOR THE ADMISSIBILITY OF BUSINESS RECORDS RELIED UPON BY THE REFEREE WAS LAID; THE REFEREE RELIED ON UNIDENTIFIED AND UNPRODUCED RECORDS; THE JUDGMENT OF FORELCOSURE SHOUILD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judgment of foreclosure was not supported because the referee’s report was based on documentary evidence which was not identified or produced and for which no foundation had been laid in the relevant affidavit:

… [T]he referee relied on an affidavit of Tom Croft, an “SVP of default” of Carrington Mortgage Services, LLC, attorney-in-fact for the plaintiff. Croft’s affidavit was insufficient to establish a proper foundation for the admission of a business record pursuant to CPLR 4518(a), because he failed to attest that he was personally familiar with the record-keeping practices and procedures of his employer or the plaintiff … . Moreover, Croft’s computations were “based upon a review of unidentified and unproduced business records” and, consequently, “constitute[d] inadmissible hearsay and lack[ed] probative value” … on that additional ground. The error in relying on Croft’s hearsay evidence was not harmless, as, contrary to the plaintiff’s contention, the referee’s determination is not substantially supported by any admissible evidence in the record … . Bank of Am., N.A. v Barnett, 2025 NY Slip Op 04861, Second Dept 9-10-25

Practice Point: Unless the business records relied upon in the referee’s report are produced and supported by an adequate foundation, the report is inadmissible hearsay.

 

, ,

CONFLICTING EXPERT OPINIONS PRECLUDE SUMMARY JUDGMENT IN A MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this medical malpractice action had, through his expert’s affidavit, raised a question of fact whether the defendant primary care physician departed from good and accepted medical practice. Although defendant referred plaintiff to a urologist based upon an elevated PSA level (a possible sign of prostate cancer), defendant did not mention the elevated PSA level in the referral:

… [P]laintiff raised a triable issue of fact by submitting the affirmation of an expert, who opined that “[i]t is the referring physician’s duty to provide the specialist with all the necessary information to provide a comprehensive specialty consultation.” The plaintiff’s expert explained that, at the plaintiff’s initial consultation with the urologist, the plaintiff’s elevated PSA level was not addressed because Rosen failed to inform the first urologist of the plaintiff’s elevated PSA level. The plaintiff’s expert also stated that Rosen, as a primary care physician, should have ordered another PSA test eight weeks after the initial test to confirm the elevated PSA level, which would have allowed Rosen to better diagnose the plaintiff.

… The defendants’ expert’s conclusory assertion that “the existence of the plaintiff’s prostate cancer, and the course it followed, were wholly unrelated to the care administered” by [defendant] Rosen was insufficient to establish that Rosen’s alleged negligence did not proximately cause or exacerbate the plaintiff’s injuries … . Because there are conflicting expert opinions … Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them … . Autieri v Rosen, 2025 NY Slip Op 04858, Second Dept 9-10-25

Practice Point: Conflicting expert opinions preclude summary judgment in a medical malpractice action. Conclusory statements in an expert affidavit do not raise a question of fact.​

 

, , ,

HERE THE OUT-OF-POSSESSION LANDLORD WAS NOT LIABLE FOR A SLIP AND FALL CAUSED BY A LOOSE FLOOR TILE IN PLAINTIFF’S APARTMENT, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court in this premises liability slip and fall case, determined (1) the motion court should not have considered an argument first raised in opposition to the defendant out-of-possession landlord’s motion for summary judgment, and the defendant out-of-possession landlord could not be held liable for a loose floor tile in plaintiff’s apartment. The lease between defendant and plaintiff’s landlord made defendant responsible for maintenance of the public areas of the building and plaintiff’s landlord responsible for maintenance of all other areas:

The plaintiff’s allegation that the loose floor tile was caused by a leaky roof was not pleaded, “and a plaintiff cannot raise a new theory of liability in opposition to a motion for summary judgment” … .

… [An] “… out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct” … . Here, since the complaint sounds in common-law negligence and the pleadings do not allege a violation of a statute, the defendant cannot be held liable unless he retained control over the premises and owed a duty assumed by contract or a course of conduct … .

“[C]ontrol refers to the ability of an out-of-possession landlord to remedy dangerous conditions” … . “Reservation of a right of re-entry for inspection and repair in a lease may, under certain circumstances, constitute sufficient retention of control to impose liability for injuries caused by an alleged hazard” … . In the absence of a statutory violation, there must be a significant structural or design defect present in order for a right of re-entry to constitute sufficient retention of control to impose liability … .

Here, the defendant, who had no key to access the building, never visited the second floor, and did not know there were tenants living on the second floor, established, prima facie, that he did not have an ability to remedy the loose floor tile, which was not a significant structural defect … .  Alexandre v Shih T. Wang, 2025 NY Slip Op 04855, Second Dept 9-10-25

Practice Point: Consult this decision for a concise explanation of the liability of an out-of-possession landlord for a non-structural defect inside a tenant’s apartment.

 

,

THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) REPRESENTS A CHANGE IN THE LAW WHICH WILL SUPPORT A MOTION TO RENEW; HERE THE MOTION TO RENEW SHOULD HAVE BEEN GRANTED AND THE FORECLOSURE ACTION SHOULD HAVE BEEN DISMISSED AS TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s (G&Q Estates Corp.’s) motion to renew based upon new law, the Foreclosure Abuse Prevention Act (FAPA), should have been granted and the foreclosure action should have been dismissed as time-barred:

A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination” (CPLR 2221[e][2]). “Therefore, a motion for leave to renew is the appropriate vehicle for seeking relief from a prior order based on a change in the law” … . * * *

… G & Q Estates correctly contends that FAPA constituted a change in the law that would alter the Supreme Court’s prior determination of those branches of its prior cross-motion which were to vacate its default in appearing or answering the amended complaint and to dismiss the amended complaint insofar as asserted against it as time-barred … . The commencement of the 2007 action accelerated the mortgage debt and caused the six-year statute of limitations period to accrue, the voluntary discontinuance of that action did not de-accelerate the debt in light of the statutory amendments enacted by FAPA, and the limitations period thus expired in September 2013 … . U.S. Bank N.A. v Mongru, 2025 NY Slip Op 04807, Second Dept 8-27-25

Practice Point: The Foreclosure Abuse Prevention Act (FAPA) represents and change in the law which supports a motion to renew.

 

,

CALCULATONS RELIED UPON BY THE REFEREE WERE BASED ON UNIDENTIFIED AND UNPRODUCED BUSINESS RECORDS RENDERING THE CALCULATIONS HEARSAY; THE REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report relied on calculations based on unidentified and unproduced business records, rendering the calculations hearsay. Therefore, the reports should not have been confirmed:

… [T]he referee’s findings with respect to the amount due to the plaintiff were based upon unidentified and unproduced business records … . Since the computations of the loan servicer’s employee as to the amounts due to the plaintiff were based on unidentified and unproduced business records, the employee’s assertions in those regards constituted inadmissible hearsay and lacked probative value … . TLOA Mtge., LLC v 109-08 N. Blvd, LLC, 2025 NY Slip Op 04804, Second Dept 8-27-25

Practice Point: Any calculations relied upon in a referee’s report, even if done by a third party, must be supported by attached business records. Without the records, the calculations are hearsay.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy