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DEFENDANT DINER’S SECURITY GUARD KNOCKED PLAINTIFF TO THE GROUND AND CHOKED HIM; WHETHER THE DINER DEFENDANTS ARE VICARIOUSLY LIABLE DEPENDED UPON WHETHER THE SECURITY GUARD WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ASSAULT; THE FAILURE TO PROVIDE THE JURY WITH AN INTERROGATORY ON THE SCOPE-OF-EMPLOYMENT QUESTION REQUIRED A NEW TRIAL (SECOND DEPT).

The Second Department, reversing the denial of defendants’ motion to set aside the verdict and ordering a new trial, held the jury should have been instructed to determine whether the security guard (Vetell) who assaulted plaintiff was acting within the scope of his employment at the time of the assault. Apparently plaintiff left the defendant diner to get money at an ATM to pay the bill. When he retuned to the diner, the security guard knocked him to the ground and choked him:

… Supreme Court erred in denying the appellants’ counsel’s request to ask the jury to determine whether Vetell was acting within the scope of his employment when he attacked the plaintiff. The interrogatories that were given to the jury made it possible for the jury to find the appellants liable for Vetell’s acts based only on his being a special employee without determining that he was acting within the scope of his employment when he attacked the plaintiff. Since a determination that Vetell was acting within the scope of his employment is a necessary element to render the appellants vicariously liable for his acts, the court should have added the requested interrogatory to the verdict sheet … . Eaton v Fiotos, 2025 NY Slip Op 03553, Second Dept 6-10-25

Practice Point: Whether an employer is vicariously liable for the actions of an employee depends upon whether the employee’s conduct was within the scope of employment. Here the failure to so instruct the jury required a new trial.​

 

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IN THIS TRAFFIC-ACCIDENT DAMAGES TRIAL, THE DEFENDANT OFFERED PHOTOGRAPHS OF PLAINTIFF’S DAMAGED VEHICLE AND PLAINTIFF’S EMPLOYMENT RECORDS WHICH WERE ADMITTED INTO EVIDENCE WITHOUT PROPER FOUNDATIONS; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing the judgment and ordering a new damages trial in this traffic accident case, determined the photographs of plaintiff’s damaged vehicle and the plaintiff’s employment records, offered in evidence by the defendant, should not have been admitted because defendant did not lay a sufficient foundation:

The proponent must lay a proper foundation for the admission of photographs into evidence, “which generally requires proof that the photographs were taken close in time to the accident and fairly and accurately represent the conditions as they existed on the date of the accident” … . Here, the plaintiff, who was the sole witness who testified about the photographs, stated that they did not fairly and accurately depict the condition of her vehicle after the accident and that she did not know when the photographs were taken. Thus, the defendant failed to lay a proper foundation for admission of the photographs, and the Supreme Court erred in admitting them into evidence.

“[D]ocuments obtained by subpoena cannot be admitted into evidence without a proper evidentiary foundation” … . Furthermore, “[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” … . Here, the defendant failed to lay a proper foundation for the admission of the plaintiff’s employment documents, which had been obtained via subpoena, since no witness testified to having personal knowledge of the business practices and procedures of the plaintiff’s former employer. Accordingly, the Supreme Court erred in admitting the employment documents into evidence.

Postaccident photographs of a vehicle are “relevant to show the force of an impact, and [would] therefore ‘help[ ] in determining the nature or extent of injuries and thus relate[ ] to the question of damages'” … . Additionally, the employment documents were relevant to both the plaintiff’s credibility and her prior injury history. Since the improperly admitted photographs and employment documents related to the extent of the plaintiff’s injuries and her credibility, these errors were not harmless … . Powell v Burg, 2025 NY Slip Op 03348, Second Dept 6-4-25

Practice Point: If a party offers photographs and documents which are admitted in evidence without proper foundations, and the evidence is detrimental to the other party, a new trial may be ordered on appeal.

 

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DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT MOVING TO SUPPRESS CREDIT CARDS SEIZED DURING THE EXECUTION OF A SEARCH WARRANT WHICH WERE NOT WITHIN THE SCOPE OF THE WARRANT; THE INCRIMINATING NATURE OF THE CREDIT CARDS WAS NOT IMMEDIATELEY APPARENT (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction and ordering a new trial, determined defense counsel was ineffective in failing to move to suppress credit cards seized during the execution of a search warrant. The credit cards were not within the scope of the warrant and there was no showing the incriminating nature of the credit cards was immediately apparent to the officer who seized them:

… [I]n an affirmation in support of the defendant’s CPL 440.10 motion, trial counsel averred that he “failed to consider that the seized credit cards were not described in the search warrant” and that he “failed to research the applicable law on exceptions to the warrant requirement.” Trial counsel admitted that his subsequent failure to move to suppress the credit cards in particular was not the result of a strategic decision and that he would have so moved if he had researched the law concerning the plain view exception to the warrant requirement. Thus, by his own admission, trial counsel’s failure to move for suppression of the credit cards due to their warrantless seizure cannot be characterized as a legitimate strategic decision … .

Defense counsel’s “investigation of the law, the facts, and the issues that are relevant to the case” is “[e]ssential to any representation, and to the attorney’s consideration of the best course of action on behalf of the client” … . Since the defendant established that trial counsel “did not fully investigate the case and did not collect the type of information that a lawyer would need in order to determine the best course of action” …  he demonstrated that he did not receive effective assistance of counsel. Thus, the Supreme Court should have granted the defendant’s motion pursuant to CPL 440.10 to vacate the judgment of conviction on this basis and ordered a new trial. People v Goodluck, 2025 NY Slip Op 03343, Second Dept 6-4-25

Practice Point: Here defense counsel’s failure to investigate the law regarding the seizure of evidence outside the scope of a search warrant was deemed ineffective assistance requiring a new trial. Note that defense counsel, in support of defendant’s motion, submitted an affirmation admitting the failure to investigate and acknowledging that the omission was not a deliberate defense strategy.

 

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FATHER’S PETITION FOR CUSTODY SHOULD NOT HAVE BEEN DISMISSED BECAUSE HIS PATERNITY HAD NOT BEEN ADJUDICATED AT THE TIME THE PETITION WAS BROUGHT; THE PETITION ADEQUATELY ALLEGED PATERNITY WHICH WAS SUBSEQUENTLY CONFIRMED BY A DNA TEST (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s custody petition should not have dismissed on the ground he had not been adjudicated the biological father at the time the custody petition was brought. The petition sufficiently alleged paternity, which was subsequently confirmed by a DNA test:

The Family Court, in effect, granted that branch of the petitioner’s cross-motion which was for a genetic marker test. The DNA test results of the court-ordered genetic marker test revealed that the probability of the petitioner’s paternity was 99.99%. Thereafter, the court issued an order of filiation, on consent, adjudging the petitioner to be the child’s biological father. However, in a separate order, the court, inter alia, granted that branch of the mother’s motion which was to dismiss the custody petition, determining that the petitioner lacked standing to file the custody petition because at the time he filed the custody petition, “his parentage of the child had not yet been legally established.” The petitioner appeals.

“Pursuant to Domestic Relations Law § 70, parents have standing to seek custody of or parental access with their children” .. . Here, the custody petition sufficiently alleged that the petitioner was the biological father of the child. The mother’s affidavits did not expressly deny the petitioner’s paternity, nor offer any facts to refute his allegations of paternity. Moreover, the Family Court entered the order of filiation on consent, and it is undisputed that the petitioner was adjudicated to be the child’s biological father before, or at the same time that, the court granted that branch of the mother’s motion which was to dismiss the custody petition. Accordingly, the court erred in determining that the petitioner did not have standing to file the custody petition because he had not been adjudicated the biological father of the child before the custody petition was filed … . Matter of Kevin C. v Trisha J., 2025 NY Slip Op 03324, Second Dept 6-4-25

Practice Point: Father’s standing to bring a custody petition is not dependent upon an adjudication of paternity.. Here the custody petition adequately alleged paternity, which was subsequently confirmed by a DNA test.

 

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THE ABSENCE OF A REASONABLE EXCUSE FOR FAILING TO FILE A TIMELY NOTICE OF CLAIM IS NOT NECESSARILY FATAL TO A PETITION FOR LEAVE TO FILE A LATE NOTICE WHERE, AS HERE, THE MUNICIPALITY HAD ACTUAL TIMELY NOTICE OF THE FACTS UNDERLYING THE CLAIM AND IS NOT PREJUDICED BY THE DELAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioners’ motion for leave to file a late notice of claim in this traffic accident case involving a city bus should have been granted. Although the excuse for failure to time file (petitioners’ infancy) was not reasonable, that flaw was not fatal because the city had timely actual knowledge of the essential facts underlying the claim and was not prejudiced by the delay:​

Here, the respondents acquired timely, actual knowledge of the essential facts constituting the petitioners’ claim. Although a police report regarding an automobile accident does not, in and of itself, constitute notice of a claim to a municipality or public corporation, where the report reflects that an employee of the municipality or public corporation committed a potentially actionable wrong, such entity can be found to have actual knowledge … . In this case, the police report, which the petitioners sent to the NYCTA [NYC Transit Authority] on or about July 2, 2021, indicated that the multivehicle collision was set in motion by Robinson, who caused the bus to come into contact with the rear of another vehicle. The police report also indicated that several bus passengers reported injuries and named the injured petitioners, among others. In addition, the respondents were in possession of the injured petitioners’ medical records. Under these circumstances, the respondents acquired timely, actual knowledge of the essential facts constituting the petitioners’ claim … .

Moreover, since the respondents acquired timely, actual knowledge of the essential facts constituting the petitioners’ claim, the petitioners met their initial burden of showing a lack of prejudice to the respondents’ ability to maintain a defense … . Matter of Arvizu v New York City Tr. Auth., 2025 NY Slip Op 03323, Second Dept 6-4-25

Practice Point: A municipality will be deemed to have timely actual notice of a claim where, as here, the police report reflects that an employee of the municipality committed a potentially actionable wrong.​​​​​​​​​​​

 

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HERE AN ARGUMENT RAISED FOR THE FIRST TIME IN PLAINTIFF’S REPLY PAPERS WAS DEEMED NOT PROPERLY BEFORE THE APPELLATE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff-bank’s argument in this foreclosure action should not have been considered because it was raised for the first time in reply papers. In its reply, the plaintiff argued that the foreclosure action was not time-barred because defendant revived the statute of limitations by making payments within the six years prior to the commencement of the action:

[Plaintiff] failed to establish, prima facie, that this action was not time-barred. The plaintiff’s submissions revealed that the mortgage debt was accelerated in January 2007, when the plaintiff commenced the first prior action to foreclose the mortgage … . This action was commenced in July 2018, more than six years later. The plaintiff’s contention that payments the defendant made on the loan as late as September 2013 served to renew the statute of limitations, making this action timely, is not properly before this Court, as it was raised for the first time in reply papers submitted to the Supreme Court, and there is no indication that the defendant was afforded an opportunity to submit a surreply or that this new argument responded to allegations the defendant raised for the first time in his opposition papers … . Bank of N.Y. Mellon v Cooper, 2025 NY Slip Op 03297, Second Dept 6-4-25

Practice Point: Here the Second Department noted that an argument raised for the first time in reply papers was not properly before the appellate court. There was no indication sur-reply papers were submitted or that the reply-argument was a response to an issue raised by the other party.

 

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HERE IN THIS BUS-PASSENGER-INJURY ACTION AGAINST THE CITY TRANSIT AUTHORITY, PLAINTIFF STATED THE WRONG ACCIDENT-DATE IN THE NOTICE OF CLAIM; BECAUSE THE WRONG DATE WAS NOT USED IN BAD FAITH AND THE CITY WAS NOT PREJUDICED, PLAINTIFF SHOULD HAVE BEEN ALLOWED TO AMEND THE NOTICE OF CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the wrong accident-date in the notice of claim did not warrant dismissal of the action. The wrong date was not willful and the municipality was not prejudiced. The plaintiff alleged she was injured when the driver of the defendant NYC Transit Authority’s bus stopped short:

“‘To enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim'” … . General Municipal Law § 50-e(2) requires that the notice of claim set forth, among other things, “the time when, the place where and the manner in which the claim arose” … . “‘[I]n determining compliance with the requirements of General Municipal Law § 50-e, courts should focus on the purpose served by a Notice of Claim: whether based on the claimant’s description municipal authorities can locate the place, fix the time and understand the nature of the accident'” … . “Pursuant to General Municipal Law § 50-e(6), a court has discretion to grant leave to serve an amended notice of claim where the error in the original notice was made in good faith and where the other party has not been prejudiced thereby” … .

Here, there is no indication in the record that the accident date listed in the notice of claim and the complaint was set forth in bad faith … . Rather, the plaintiff’s mistake was based upon her reliance on a police report that incorrectly listed the accident date … . Moreover, contrary to the Supreme Court’s determination, the proposed amendment to the accident date was purely technical in nature and did not substantively change the nature of the claim … .

Furthermore, the record does not reflect that the defendants will be prejudiced by the plaintiff’s delay in moving for leave to amend the notice of claim. Under the circumstances of this case, including that the plaintiff received medical assistance at the accident site, that specific details regarding the circumstances of the accident, including the accident location and bus route, were set forth in a police report and the notice of claim, and that the plaintiff’s error in listing an accident date several days prior to the actual date of the accident was minimal, the defendants could have ascertained the date of the accident “with a modicum of effort” … . Hernandez v City of New York, 2025 NY Slip Op 03312, Second Dept 5-4-25

Practice Point: Here the wrong accident-date was included in the notice of claim and the plaintiff moved to amend the notice. Because the wrong date was not used in bad faith (the date was taken from the police report) and because the city was not prejudiced by the error, plaintiff’s motion to amend the notice of claim should have been granted.

 

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RPAPL 1304 REQUIRES THAT THE NOTICE OF FORECLOSURE BE MAILED SEPARATELY TO EACH BORROWER; HERE THE NOTICE WAS SENT TO BOTH BORROWERS IN A SINGLE ENVELOPE; THE BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s motion for summary judgment in this foreclosure action should not have been granted. The bank did not prove its “strict compliance” with the notice of foreclosure provisions of RPAPL 1304:

RPAPL 1304 requires that at least 90 days before a lender, an assignee, or a mortgage loan servicer commences an action to foreclose the mortgage on a home loan as defined in the statute, such lender, assignee, or mortgage loan servicer give notice to the borrower. The statute prescribes the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower … . “Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action” … , “and the plaintiff has the burden of establishing satisfaction of this condition” … . “[T]he mailing of a 90-day notice jointly addressed to two or more borrowers in a single envelope is not sufficient to satisfy the requirements of RPAPL 1304, and . . . the plaintiff must separately mail a 90-day notice to each borrower as a condition precedent to commencing the foreclosure action” … .

Here, in support of its motion, among other things, for summary judgment on the complaint insofar as asserted against Esther, Wilmington failed to establish strict compliance with RPAPL 1304. Although the RPAPL 1304 notice was mailed to the borrowers by both certified and first-class mail, Wilmington failed to establish that Wells Fargo sent a 90-day notice individually addressed to each borrower in a separate envelope, as required by the statute … . Instead, as 1900 Capital concedes, the RPAPL 1304 notice was not mailed individually, in a separate envelope, to Esther. Rather, the envelope purportedly providing the RPAPL 1304 notice to Esther was jointly addressed to her and Marvin in one envelope. This was insufficient to establish compliance with RPAPL 1304 … . Wells Fargo Bank, N.A. v Welz, 2025 NY Slip Op 03355, Second Dept 6-4-25

Practice Point: The “notice of foreclosure” provisions in RPAPL 1304 must be strictly complied with. Here the bank mailed the notice to both borrowers in a single envelope. The statute requires separate mailings to each borrower. Therefore the bank was not entitled to summary judgment.

 

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THE BANK’S FAILURE TO OFFER A REASONABLE EXCUSE FOR FAILURE TO COMPLY WITH A COURT RULE REQUIRING THAT A MOTION FOR A JUDGMENT OF FORECLOSURE BE FILED WITHIN ONE YEAR OF THE ENTRY OF THE ORDER OF REFERENCE WARRANTED DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s failure to comply with Kings County Supreme Court Uniform Civil Term Rule 8, which requires the bank to file a motion for judgment of foreclosure withing one year of entry of the order of reference, warranted dismissal of the action:

“Rule 8 requires a plaintiff in a foreclosure action to file a motion for a judgment of foreclosure within one year of entry of the order of reference” … . “Where the plaintiff offers an excuse for its failure to comply with Rule 8, ‘[t]he determination of whether [the] excuse is reasonable is committed to the sound discretion of the motion court'” … . “Reversal is warranted ‘if that discretion is improvidently exercised'” … .

Here, the Supreme Court improvidently exercised its discretion in denying that branch of the defendant’s motion which was to dismiss the complaint insofar as asserted against her for failure to comply with Rule 8. The order of reference was entered on August 28, 2012, * * * [and] the plaintiff failed to provide a reasonable excuse as to why [the bank] did not move for a judgment of foreclosure and sale prior to August 28, 2013. Contrary to the court’s determination, the failure to comply with Rule 8 is a sufficient ground upon which to dismiss a foreclosure action … . Wells Fargo Bank N.A. v Kahan, 2025 NY Slip Op 03354, Second Dept 6-4-25

Practice Point: Here the bank’s failure to comply with a Kings County Supreme Court Uniform Civil Term Rule warranted dismissal of the foreclosure action.

 

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HERE, EVEN THOUGH THE INITIAL ACTION WAS TIMELY ONLY BECAUSE OF THE SIX-MONTH “SAVINGS PROVISION” EXTENSION IN CPLR 205(A), THE SECOND ACTION, COMMENCED AFTER THE DISMISSAL OF THE FIRST FOR LACK OF STANDING, CAN BE DEEMED TIMELY UNDER A SECOND CPLR 205(A) SIX-MONTH “SAVINGS PROVISION” EXTENSION (SECOND DEPT).​ ​

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice LaSalle, determined the “savings provision” of CPLR 205(a) allows a second six-month extension of the time to file a new action after a dismissal which is not on the merits. In this wrongful death and Public Health Law 2801-d action against a nursing home and hospital, the complaint was filed an served while the application for appointment of an executor was pending. The complaint was dismissed because the plaintiff did not have standing. Although the statute of limitations had run, the initial action was timely because of the savings provision in CPLR 205(a). The action was commenced again whiled the application for appointment of an executor was still pending. This time the complaint was dismissed with prejudice on the ground the six-month extension in CPLR 205(a) is only available once:​

The primary issue raised on this appeal is whether CPLR 205(a) permits a litigant to commence an otherwise untimely new action within six months of the dismissal of a prior action where that prior action was, itself, made timely only by a previous application of CPLR 205(a). This issue appears to be one of first impression in a State apellate court. Although the United States Court of Appeals for the Second Circuit (hereinafter the Second Circuit) has answered this question in the negative (see Ray v Ray, 22 F4th 69 [2d Cir]), that holding is not binding on this Court, and we respectfully disagree with it and conclude that the plain language of CPLR 205(a) does allow a litigant to commence such an action. Accordingly, while the Supreme Court properly dismissed the instant complaint on the ground that the plaintiff had not yet obtained letters testamentary to become the personal representative of the decedent’s estate, the dismissal should have been without prejudice instead of with prejudice. ​​Tumminia v Staten Is. Univ. Hosp., 2025 NY Slip Op 03352, Second Dept 6-4-25

Practice Point: Here an action which was timely only by the application of the six-month “savings provision” extension in CPLR 205(a), and which was dismissed for lack of standing, did not preclude a second identical action which could only be deemed timely by a second application of the CPLR 205(a) savings provision.​

 

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