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PETITIONER PREVAILED IN THE FOIL PROCEEDING AND WAS THEREFORE ENTITLED TO ATTORNEY’S FEES; HOWEVER, PETITIONER WAS NOT ENTITLED TO LEGAL COSTS INCURRED IN PROSECUTING THE PETITIONER’S CLAIM FOR ATTORNEY’S FEES, SO-CALLED “FEES ON FEES” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although the petitioner in this FOIL action prevailed and was entitled to attorney’s fees, the petitioner was not entitled to the fees incurred in seeking to recover the attorney’s fees, so-called “fees on fees:”

… [W]e find that the award of attorneys’ fees included amounts for legal fees and costs incurred by the petitioner in prosecuting its claim for an award of attorneys’ fees, or so called “fees on fees.” In New York, an attorney’s fee is “‘merely an incident of litigation and is not recoverable absent a specific contractual provision or statutory authority'” … . An award of fees on fees—fees for services performed to recover a fee award—also must be based upon a specific contractual provision or statute … . Here, “[g]iven the absence of unmistakably clear intent regarding the recovery of fees on fees [in Public Officers Law § 89(4)(c)], a right to recover those fees should not be implied” … .

As the petitioner is entitled to an award of attorneys’ fees, we remit the matter to the Supreme Court, Kings County, for a new hearing on the issue of the amount of reasonable attorneys’ fees arising solely from the prosecution of this proceeding, without the inclusion of legal fees and costs incurred in prosecuting the petitioner’s claim for an award of attorneys’ fees … . Matter of Aron Law, PLLC v New York City Fire Dept., 2025 NY Slip Op 03806, Second Dept 6-25-25

Practice Point: The prevailing party in a FOIL proceeding is entitled to attorney’s fees. However the petitioner is not entitled to “fees on fees,” i.e., legal costs incurred in prosecuting the claim for attorney’s fees.

 

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PLAINTIFF STATED A CAUSE OF ACTION FOR DEFAMATION PER SE (DEFENDANT ALLEGEDLY STATED PLAINTIFF ENGAGED IN MONEY LAUNDERING); ALTHOUGH DEFENDANT DEMONSTRATED THE ACTION INVOLVED “PUBLIC PETITION AND PARTICIPATION” WITHIN THE MEANING OF THE SLAPP STATUTE, PLAINTIFF DEMONSTRATED THE DEFAMATION ACTION HAD A SUBSTANTIAL BASIS IN LAW; THEREFORE THE SLAPP STATUTE SHOULD NOT HAVE BEEN APPLIED TO DISMISS THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff had stated a cause of action for defamation and defendant was not entitled to dismissal of the complaint pursuant to the SLAPP statute (strategic lawsuit against public participation—Civil Rights Law section 70-a(1)(a)). Plaintiff operated a marina under a 60-year lease from the National Park Service, a US governmental agency. Defendant allegedly told plaintiff’s customer that plaintiff was engaged in money-laundering:

… [D]efendant satisfied his initial burden of establishing that this action is an action involving public petition and participation, since it involves a claim based upon “lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest” (id. § 76-a[1][a][2]).  * * * … [T]he defendant established that the causes of action were asserted in connection with an issue of public interest, as the defendant allegedly accused an entity operating with the authority of a governmental agency of criminal conduct … .

Since the defendant established that this action constitutes an action involving public petition and participation, the burden shifted to the plaintiff to demonstrate that the causes of action had a substantial basis in law … .

… [T]he defendant’s alleged statement that the plaintiff “is engaged in money laundering” did not constitute pure nonactionable opinion … . * * * …[T]he complaint alleged that the defendant acted with “actual malice” or reckless disregard as to whether the statements were true or false … . … [T]he complaint was not required to allege special damages, since it asserted a cause of action alleging defamation per se based upon allegations that the defendant made statements charging the plaintiff with a serious crime or tending to injure it in its trade, business, or profession … . Thus, the plaintiff established that the cause of action alleging defamation per se had a substantial basis in law … . Moonbeam Gateway Mar., LLC v Tai Chan, 2025 NY Slip Op 03802, Second Dept 6-25-25

Practice Point: The motion court dismissed the defamation action on the ground it was precluded by the SLAPP statute. However the Second Department held that plaintiff had demonstrated the defamation action had a substantial basis in law. Therefore defendant did not demonstrate entitlement to dismissal under the SLAPP statute.

 

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IN THIS LADDER-FALL CASE, CONFLICTING EVIDENCE ABOUT WHETHER A LADDER WAS REQUIRED FOR PLAINTIFF’S WORK MANDATED DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; RE: THE LABOR LAW 241(6) CAUSE OF ACTION, DEFENDANT-OWNER HAD A NONDELEGABLE DUTY TO ENSURE COMPLIANCE WITH THE LADDER-SAFETY PROVISIONS OF THE INDUSTRIAL CODE, THE OWNER’S LABOR LAW 241(6) LIABILITY IS NOT BASED UPON CONTROL OF THE WORK SITE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact precluding the award of summary judgment to the defendants on the Labor Law 240(1) cause of action in this ladder fall case. There was conflicting evidence whether a ladder was required for the work assigned to plaintiff. In addition, the Labor Law 241(6) cause of action should not have been dismissed on the ground the defendant owner did not exercise control over the worksite because the owner has a nondelegable duty to ensure compliance with the Industrial Code:

Where, as here, “credible evidence reveals differing versions of the accident,” one under which the defendant would be liable and another under which it would not, questions of fact exist making summary judgment inappropriate … . Accordingly, the court should have denied that branch of the defendant’s cross-motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1), regardless of the sufficiency of the plaintiffs’ opposition … .

Labor Law § 241(6) imposes a nondelegable duty on “owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor” … . Because an owner’s duty under Labor Law § 241(6) is nondelegable, the Supreme Court incorrectly concluded that the defendant was entitled to summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) on the ground that the record was “devoid of any information” that the defendant had “control over the worksite” … . …

12 NYCRR 23-1.21(b)(3)(iv), which requires that ladders “be maintained in good condition” and must not be used if they have “any flaw or defect of material that may cause ladder failure,” is sufficiently specific to support a cause of action under Labor Law § 241(6) …. . Contrary to its contention, the defendant failed to demonstrate, prima facie, that it did not violate this provision. … [Plaintiff] testified that the ladder shook beneath him, and the defendant did not submit evidence of the condition of the specific ladder at issue or the surface on which the ladder was situated … . Under these circumstances, the defendant also failed to demonstrate, prima facie, that it did not violate 12 NYCRR 23-1.21(b)(4)(ii), which provides that “[a]ll ladder footings shall be firm,” and “[s]lippery surfaces and insecure object … . Cabrera v Provident Alpine Partners, L.P., 2025 NY Slip Op 03700,, Second Dept 6-18-25

Practice Point: Here in this ladder-fall case, conflicting evidence about whether a ladder was required for plaintiff’s work mandated denial of defendants’ motion for summary judgment on the Labor Law 240(1) cause of action.

Practice Point: An owner’s liability under Labor Law 241(6) is based on a nondelegable duty, not on whether the owner controls the work site.

 

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THE AMOUNT OF DAMAGES FOR PAST PAIN AND SUFFERING SHOULD BE BASED UPON THE EVIDENCE; THE AWARD SHOULD NOT HAVE BEEN LIMITED TO THE AMOUNT IN THE AD DAMNUM CLAUSE (SECOND DEPT).

The Second Department, reversing the Court of Claims and remitting the matter for a new determination of damages for past pain and suffering. The Court of Claims interpreted the ad damnum clause which read “!0.000.000” to mean $10,000 and awarded that amount. The Second Department noted that the amount of damages should be based on the evidence, not on the ad damnum clause:​

… [A]lthough the Court of Claims found that the claimant’s evidence could support a “substantial recovery for past and future pain and suffering,” it limited the award of damages to $10,000 based on its interpretation of the ad damnum clause. The court should have granted “any type of relief within its jurisdiction appropriate to the proof whether or not demanded” (CPLR 3017[a] …). Although the trier of fact’s “determination is entitled to great deference, it may be set aside if the award deviates materially from what would be reasonable compensation” … . An award of $10,000 deviates materially from awards for similar injuries … . Consequently, the court should have awarded an amount for past pain and suffering that was supported by the evidence submitted by the claimant … . Bonneau v State of New York, 2025 NY Slip Op 03699, Second Dept 6-18-25

Practice Point: The damages awarded for past pain and suffering should be based on the evidence. The award is not limited to the amount in the ad damnum clause of the claim.​

 

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“BEACH 12,” A NONPARTY WHICH BECAME TITLE OWNER OF THE PROPERTY AFTER PLAINTIFF FILED THE NOTICE OF PENDENCY, WAS ENTITLED TO INTERVENE IN THE FORECLOSURE ACTION AS OF RIGHT; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined an nonparty (Beach 12) was entitled to intervene in the foreclosure action as of right:

“Upon a timely motion, a person is permitted to intervene as of right when the representation of that person’s interest by the parties is or may be inadequate and the person is or may be bound by the judgment, or when the action involves the disposition of property and that person may be affected adversely by the judgment” (… CPLR 1012[a][2], [3]). “In addition, CPLR 1013 provides that a court has discretion to permit a person to intervene, inter alia, when the person’s claim or defense and the main action have a common question of law or fact” … . “Whether intervention is sought as a matter of right under CPLR 1012(a), or as a matter of discretion under CPLR 1013, is of little practical significance, since intervention should be permitted where the intervenor has a real and substantial interest in the outcome of the proceedings” … . “Intervention may occur at any time, provided that it does not unduly delay the action or prejudice existing parties” … .

… Beach 12 was entitled to intervene [because] this “action involve[s] the disposition of title to real property” and … Beach 12, which became the title owner of the premises after the plaintiff’s filing of a notice of pendency, “would be bound and adversely affected by a judgment of foreclosure and sale” … . Bank of Am., N.A. v Reed, 2025 NY Slip Op 03695, Second Dept 6-18-25

Practice Point: Consult this decision the criteria for a nonparty’s intervention in a foreclosure action.

 

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THE IDENTIFICATION PROCEDURE WHICH USED DEFENDANT’S ARREST PHOTOGRAPH WAS UNDULY SUGGESTIVE REQUIRING SUPPRESSION OF THE RELATED IDENTIFICATIONS (SECOND DEPT).

The Second Department, reversing the burglary conviction and ordering a new trial on that count, determined the identification procedure, using an arrest photograph of the defendant, was unduly suggestive and the related identifications should have been suppressed:

Although the complainant’s identification of a Facebook photograph was not the product of a police-arranged identification procedure, the complainant’s identifications of the defendant from a single arrest photograph were the result of unduly suggestive identification procedures, and those identifications should have been suppressed … . Thus, the defendant is entitled to a new trial on the count of burglary in the second degree, to be preceded by a hearing to determine whether an independent source exists for the complainant’s identification of the defendant … . People v Wheeler, 2025 NY Slip Op 03747, Second Dept 6-18-25

Practice Point: Here the complainant’s identifications of the defendant from an arrest photograph should have been suppressed. The procedure was unduly suggestive.​

 

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THE PETITIONER, A NEW YORK CITY FIREFIGHTER, DID NOT DEMONSTRATE THE FIRE DEPARTMENT IMPROPERLY DENIED PETITIONER’S REQUEST FOR A RELIGIOUS EXEMPTION FROM THE COVID VACCINE MANDATE; SUPREME COURT REVERSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined petitioner-firefighter did not demonstrate the NYC Fire Department (FDNY) improperly denied petitioner’s request for a religious exemption from the COVID vaccine mandate:

Pursuant to the NYCHRL [New York City Human Rights Law], it is “an unlawful discriminatory practice” for an employer “to refuse or otherwise fail to engage in a cooperative dialogue within a reasonable time with a person who has requested an accommodation” for, among other possibilities, “religious needs” (Administrative Code § 8-107[28][a][1]). Here, the petitioner failed to demonstrate that the appellants’ process for resolving requests for a reasonable accommodation from the vaccine mandate did not meet the requirements of the NYCHRL regarding cooperative dialogue … . The appellants provided information on the process for reviewing accommodation requests related to the vaccine mandate and informed employees on how to appeal request denials. The record demonstrates that the petitioner availed himself of this process. The record also shows that there were multiple communications between the petitioner, the FDNY, and the [City of New York Reasonable Accommodation Appeals Panel] regarding the petitioner’s accommodation request. The petitioner failed to establish that, under the unique circumstances present at the time of the vaccine mandate, the NYCHRL required a more robust or individualized dialogue.

The petitioner also failed to demonstrate that the determination to deny him a religious exemption from the vaccine mandate was arbitrary and capricious … . Matter of Smith v New York City Fire Dept., 2025 NY Slip Op 03728, Second Dept 6-18-25

Practice Point: Here the petitioner-firefighter had won in Supreme Court and was reinstated with back pay. But the Second Department reversed finding petitioner was not entitled to a religious exemption from the COVID vaccine mandate.

 

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THE FAMILY OFFENSE OF HARASSMENT REQUIRES A COURSE OF CONDUCT; A SINGLE, ISOLATED INCIDENT IS INSUFFICIENT (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined the evidence of the family offense of harassment was not sufficient. A single isolated incident is not enough:

” … [A] person commits the family offense of harassment in the second degree when, with intent to harass, annoy, or alarm another person, he or she ‘engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose'” … . “[T]here is no question that an isolated incident cannot support a finding of harassment” … .

Here, contrary to the Family Court’s finding, the father failed to establish by a fair preponderance of the evidence that the mother committed the family offense of harassment in the second degree, as the father failed to identify more than an isolated incident (see Penal Law § 240.26[3] …). The father testified to only one isolated incident involving a verbal dispute that he had with the mother and her husband … . That dispute occurred on the driveway of the father’s home when the mother and her husband dropped off the child at the father’s home, instead of at a police station, which the father claimed was the agreed upon exchange location. Matter of Martinez v Toole, 2025 NY Slip Op 03721, Second Dept 6-18-25

Practice Point: The family offense of harassment requires proof of a course of conduct, a single incident does not suffice.​

 

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SUPREME COURT HAS SUBJECT MATTER JURISDICTION OVER THIS PROCEEDING UNDER CPLR ARTICLE 52 TO ENFORCE A MONEY JUDGMENT AGAINST THE STATE INSURANCE FUND TO THE EXTENT THE STATE IS A GARNISHEE (SECOND DEPT)

The Second Department, in a full-fledged opinion by Justice Dillon, determined Supreme Court had subject matter jurisdiction over this CPLR article 52 action to enforce a money judgment against New York State Insurance Fund. Ordinarily an action for money damages against a state agency is litigated in the Court of Claims:

In this proceeding, the State Insurance Fund is postured not as a judgment debtor but as a garnishee. As such, under CPLR 5207, all procedures for the enforcement of money judgments against other judgment debtors are applicable to it, as a garnishee, “except where otherwise prescribed by law” and except that an order “shall only provide for the payment of moneys not claimed by the [S]tate” and that no judgment may be entered against the State in such a procedure.

The State Insurance Fund has not shown that this proceeding is otherwise prescribed by law. To the contrary, CPLR 5221(a)(4) provides that the Supreme Court or a County Court has authority to hear enforcement proceedings “authorized by this article,” meaning the entirety of CPLR article 52, which, of course, includes CPLR 5207 garnishment proceedings against the State. … The petition seeks entry of an order, not a judgment. Thus, contrary to the State Insurance Fund’s contention, we hold that the Supreme Court possessed subject matter jurisdiction over this proceeding pursuant to CPLR article 52 to enforce a money judgment as against the State Insurance Fund to the extent that the State’s role in this instance is that of a garnishee. Matter of Doran Constr. Corp. v New York State Ins. Fund, 2025 NY Slip Op 03716, Second Dept 6-18-25

Practice Point: Here, under very complicated facts, Supreme Court was deemed to have subject matter jurisdiction over an action to enforce a money judgment against a state agency where the state’s role is that of a garnishee.

 

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THE HOUSING STABILITY AND TENANT PROTECTION ACT (HSTPA), BY ITS TERMS, APPLIES TO THIS HOLDOVER ACTION WHICH WAS PENDING WHEN THE HSTPA WAS ENACTED BUT HAS NOT PROCEEDED TO JUDGMENT; THEREFORE THE ACT NEED NOT BE APPLIED RETROACTIVELY TO PRECLUDE THE HOLDOVER ACTION (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ford, reversing the Appellate Term, determined the Housing Stability and Tenant Protection Act (HSTPA), which was enacted after the landlord brought the holdover proceedings but before judgment, applied to preclude the holdover action. The First Department did not need to determine whether the HSTPA applied retroactively. Under the terms of the statute, the Act applies to actions which were pending when it was enacted:

As of the date of the enactment of HSTPA, the petitioner had not yet obtained judgments of possession of the respondents’ respective apartments. The application of the subject provision of HSTPA, under these circumstances, does not expand the scope of the petitioner’s liability based on prior conduct, nor impair other rights the petitioner possessed in the past …  When HSTPA was enacted, the petitioner had no vested right to recover any units in the building for personal use … . Thus, application of HSTPA here has no potentially problematic retroactive effect … .

HSTPA unequivocally states that the subject amendments to the Rent Stabilization Law of 1969 applied to matters pending as of the date of HSTPA’s enactment … . As there is no potentially problematic retroactive effect to the amended provision in this matter, and it is undisputed that the petitioner is not entitled to the relief sought pursuant to the amended provision, the respondents were entitled to dismissal of the respective petitions pursuant to CPLR 3211(a)(7) … . Matter of Karpen v Andrade, 2025 NY Slip Op 03719, Second Dept 6-18-25

Practice Point: Where there has not been a judgment in a holdover action which was pending whin the HSTPA was enacted, there is no need to determine whether the Act should be applied retroactively. The Act, by its terms, applied to the pending action.

 

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