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HERE IN THIS MED MAL ACTION, THE COVID-RELATED IMMUNITY CODIFIED IN THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA) WARRANTED SUMMARY JUDGMENT DISMISSING THE CAUSES OF ACTION STEMMING FROM THE TREATMENT OF PLAINTIFF BY DEFENDANT PHYSICIAN IN APRIL 2020, BUT NOT THE CAUSE OF ACTION STEMMING FROM THE TREATMENT OF PLAINTIFF BY DEFENDANT PHYSICIAN IN MARCH 2020, BEFORE HIS OFFICE WAS CLOSED PURSUANT TO THE COVID EMERGENCY DECLARATION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined (1) the repeal of the Emergency or Disaster Treatment Protection Act (EDTPA) does not apply retroactively, and (2), the EDTPA did not provide COVID-related immunity for defendants’ treatment of plaintiff in March, 2020, but did provide immunity for defendants’ treatment of plaintiff in April, 2020:

On March 16, 2020, the plaintiff sought treatment for nausea, constipation, and vomiting from the defendant Joseph Tromba and was examined at Tromba’s medical office at the defendant Long Island Gastroenterology, P.C. On March 23, 2020, the medical office was closed pursuant to the emergency declaration in New York State during the COVID-19 pandemic, but Tromba spoke to the plaintiff on the telephone on April 1, April 3, and April 6, 2020. On April 6, 2020, the plaintiff presented to a hospital and underwent emergency surgery for a bowel obstruction. * * *

“[T]he EDTPA  … provided … that a health care facility ‘shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services’ [if] the services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law, the act or omission was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives, and the services were arranged or provided in good faith” … .

… [T]he defendants’ submissions in support of their motion for summary judgment failed to establish … that the treatment of the plaintiff on March 16, 2020, was impacted by the defendants’ decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives.  * * *

[Defendants established] the three requirements for immunity were satisfied with respect to their treatment of the plaintiff on April 1, April 3, and April 6, 2020 … . Tromba testified at his deposition that from March 23, 2020, through May 2020, his office was closed pursuant to the emergency declaration and he was “dealing with” his patients “as well as [he could] without seeing them physically.” Regarding the plaintiff specifically, Tromba testified that he could not see her in his office due to the COVID-19 pandemic and her reticence to leave the house. He also testified that he wanted the plaintiff to go for an X-ray in order to see the quantity of stool in her bowel. However, due to the COVID-19 pandemic, the only place that the plaintiff could obtain an X-ray was an emergency room. The plaintiff testified at her deposition, among other things, that she did not want to go for an X-ray because she had COPD, her husband had emphysema, and it “was in the middle of COVID.” Although she also testified that she would have gone for an X-ray if she thought it would have helped her, she nevertheless testified that this “was when COVID was going on” and she “didn’t even know where [she] could get an X-ray at that point.” This testimony was sufficient to establish, prima facie, that the plaintiff’s treatment on April 1, April 3, and April 6, 2020, was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak and in support of the State’s directives … . Sapienza v Tromba, 2025 NY Slip Op 04672, Second Dept 8-13-25

Practice Point: Consult this decision for an example of how the COVID-related immunity codified in the Emergency or Disaster Treatment Protection Act (EDTPA) can be applied in a medical malpractice action.

 

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FATHER, WHO LIVED IN FLORIDA, BROUGHT THIS PARENTAL ACCESS PETITION; FATHER INDICATED HE COULD NOT AFFORD TO TRAVEL TO NEW YORK; HE APPEARED SEVERAL TIMES VIRTUALLY; HE DID NOT APPEAR AT THE LAST COURT DATE, BUT HIS ATTORNEY WAS PRESENT; THE JUDGE SHOULD NOT HAVE DISMISSED THE PETITION AS ABANDONED (SECOND DEPT).

The Second Department, reversing Family Court, determined that the dismissal of father’s parental access petition for failure to prosecute was not warranted. Father lived in Florida, had made appearances virtually, and, although he did not appear at the last court date, his attorney was present:

… [F]ather commenced this proceeding pursuant to Family Court Act article 6 for parental access with the child. The Family Court directed the parties to cooperate with a clinical assessment program in New York so as to aid the court in making a parental access determination. However, the father, who lived in Florida, alleged that he was financially unable to participate in the program and to travel to New York. He also informed the court that he was initially seeking to have only telephone contact with the child. Following several virtual appearances by the father, the court advised the father that he would no longer be permitted to appear virtually, citing the father’s disruptions during his prior virtual appearances. Thereafter, prior to the next scheduled court appearance, the father made “multiple” requests to be able to appear virtually but the court denied his requests. While the father was not present at the next scheduled court appearance, his attorney was present. … [T]he court dismissed the petition without prejudice for failure to prosecute. …

“[D]ismissal is a harsh remedy which ought not to be imposed without the utmost caution” … . A petition should not be dismissed for failure to prosecute where there is no indication of intentional default or willful abandonment … . Here, inasmuch as the father made several appearances in the proceeding virtually and appeared through counsel during the latest scheduled court appearance, the record does not reflect that the father willfully abandoned his parental access petition … . Matter of Lopez v Estrella, 2025 NY Slip Op 04649, Second Dept 8-13-25

Practice Point: Dismissal of a parental access petition for failure to prosecute is a harsh remedy which was not justified in this case. Father lived in Florida and appeared virtually. His requests to continue to appear virtually were denied. He was seeking only telephonic contact with the child. There was no indication of intentional default or willful abandonment of the petition.

 

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STRICT COMPLIANCE WITH THE NOTICE OF FORECLOSURE PROVISIONS IN RPAPL 1304 IS REQUIRED; HERE THE BANK FAILED TO SHOW THAT IT SENT RPAPL 1304 NOTICES ADDRESSED INDIVIDUALLY TO DEFENDANTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s failure to comply with the notice of foreclosure requirements of RPAPL 1304 precluded summary judgment:

RPAPL 1304(1) provides that “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, . . . including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower.” “Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action” … . RPAPL 1304(2) states that “[t]he notices required by this section shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice” … .

… [A] “‘defense based on noncompliance with RPAPL 1304 may be raised at any time'” prior to the entry of a judgment of foreclosure and sale … . … [T]he plaintiff failed to establish its strict compliance with the service requirements of RPAPL 1304. … [T]he plaintiff failed to show that it sent RPAPL 1304 notices addressed individually to each of those defendants as required by the statute … . HSBC Bank USA, N.A. v Stein, 2025 NY Slip Op 04638, Second Dept 8-13-25

Practice Point: Strict compliance with the notice of foreclosure provisions of RPAPL 1304 is required. The notices must be sent to defendants individually.

 

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PLAINTIFF SLIPPED AND FELL ON SNOW FIVE HOURS AFTER THE “EXTRAORDINARY SNOWSTORM” HAD ENDED; THE STORM-IN-PROGRESS RULE APPLIED AND DEFENDANT TRANSIT AUTHORITY WAS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant transit authority’s motion for summary judgment in this slip and fall case should have been granted pursuant to the “storm in progress” rule. :Plaintiff slipped an fell on an uncovered staircase at a subway station. The fall happened five hours after the end of “an extraordinary snowstorm:”

Under the storm in progress rule, a property owner will not be held liable for accidents caused by accumulation of snow unless “an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm” … . “[T]he question of whether a reasonable time has elapsed may be decided as a matter of law by the court, based upon the circumstances of the case” … .

Here, the defendant made a prima facie showing of its entitlement to judgment as a matter of law by submitting an affidavit of a meteorologist, with attached certified climatological data, which demonstrated that at the time of the plaintiff’s accident, less than five hours had passed since the end of an extraordinary snowstorm … . In opposition, the plaintiff failed to raise a triable issue of fact … . Harris v New York City Tr. Auth., 2025 NY Slip Op 04635, Second Dept 8-13-25

Practice Point: The storm in progress rule applies for a period of time after the precipitation stops. Here the rule was applied to a slip and fall which occurred five hours after an “extraordinary snowstorm.”

 

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BUSINESS RECORDS SUBMITTED BY A PERSON WHO DOES NOT ALLEGE PERSONAL KNOWLEDGE OF THE PARTY’S RECORD-KEEPING PRACTICES AND PROCEDURES CANNOT BE RELIED UPON BY THE REFEREE IN A FORECLOSURE PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed because relied-upon business records were not incorporated into an affidavit from someone with personal knowledge of the plaintiff’s record-keeping practices and procedures:

… [T]he supplemental business records were not identified by [the affiant] “or otherwise incorporated into[ ] her affidavit. Rather, those records were attached as an exhibit to [a letter] of the plaintiff’s attorney, and the attorney did not allege personal knowledge of the plaintiff’s record-keeping practices and procedures” … . For this reason, the referee’s findings were not substantially supported by the record … . Citimortgage, Inc. v Rooney, 2025 NY Slip Op 04624, Second Dept 8-13-25

Practice Point: Here the referee’s report relied on business records submitted attached to a letter from plaintiff’s attorney. Because the attorney did not allege personal knowledge of the plaintiff’s record-keeping practices and procedures, the records should not have been considered and the referee’s report was not substantially supported by the record.

 

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DEFENDANTS RELIED ON A STATEMENT TRANSLATED FROM SPANISH ATTRIBUTED TO PLAINTIFF BUT FAILED TO SHOW THAT THE TRANSLATION WAS PROVIDED BY A COMPETENT, OBJECTIVE INTERPRETER WHOSE TRANSLATION WAS ACCURATE; THEREFORE THE STATEMENT DID NOT RAISE A QUESTION OF FACT IN THIS LADDER-FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this ladder-fall case. Plaintiff testified the unsecured ladder moved and he fell, which made out a prima facie case under Labor Law 240(1). Defendants attempted to raise a question of fact by submitting a statement plaintiff allegedly made to his foreman in Spanish, but defendants presented no evidence that the translation was accurate:

… [P]laintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendants. In support of his motion, the plaintiff submitted, inter alia, a transcript of his deposition testimony, which established that the unsecured ladder moved, causing him to fall … . In opposition, the defendants failed to raise a triable issue of fact. The documents submitted by the defendants in opposition to the plaintiff’s motion, which relied on a statement the plaintiff allegedly made to his foreman in Spanish, were insufficient to raise a triable issue of fact. The defendants did not submit any deposition testimony or affidavit from the foreman, and they failed to show that the translation of the statement was provided by a competent, objective interpreter whose translation was accurate … . Batis v 85 Jay St. (Brooklyn), LLC, 2025 NY Slip Op 04619, Second Dept 8-13-25

Practice Point: Before a court will consider a statement translated from another language, the party offering the statement must show the translation was provided by a competent, objective interpreter whose translation was accurate.

 

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FAILURE TO COMPLY WITH THE SERVICE-OF-PROCESS REQUIREMENTS IN CPLR 308 AND 311 ARE JURISDICTIONAL DEFECTS, NOT “TECHNICAL” DEFECTS WHICH CAN BE OVERLOOKED PURSUANT TO CPLR 2001 (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the incarcerated plaintiff’s failure to comply with the service of process requirements in CPLR 308(2) and 311 were jurisdictional defects which could not be overlooked by the judge pursuant to CPLR 2001. CPLR 2001, which allows a court to cure a “technical” defect in effecting service, presupposes the court has acquired jurisdiction:

“‘The court’s ability to apply CPLR 2001 . . . presupposes that the court has acquired jurisdiction'” … . Thus, “CPLR 2001 may be used to cure only a ‘technical infirmity'” in effecting service … . “‘In deciding whether a defect in service is merely technical, courts must be guided by the principle of notice to the defendant—notice that must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections'” … . “Defendant’s actual receipt of the summons and complaint is not dispositive of the efficacy of service” … .

Here, notwithstanding the plaintiff’s status as an incarcerated pro se litigant, the plaintiff’s failure to comply with the personal delivery requirements of CPLR 308(2) and CPLR 311, or to effect the requisite mailings within the required time period under CPLR 308(2) are jurisdictional defects that the Supreme Court may not overlook pursuant to CPLR 2001 … . Baptiste v County of Suffolk, 2025 NY Slip Op 04618, Second Dept 8-13-25

Practice Point: CPLR 2001, which allows the cure of “technical” defects in the service of process, does not apply to “jurisdictional” defects such as failing to comply with the requirements in CPLR 308 and 311.

 

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PLAINTIFFS REQUESTED GENERAL LIABILITY INSURANCE WHICH WAS PROCURED BY THE BROKER; THE BROKER WAS NOT UNDER A DUTY TO ADVISE, GUIDE OR DIRECT PLAINTIFFS TO OBTAIN ADDITIONAL COVERAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff did not demonstrate the defendant insurance broker breached its duty to procure additional insurance for the plaintiffs. Defendant proved plaintiffs requested general liability insurance which was procured:

“As a general principle, insurance brokers have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so” … . “Absent a specific request for coverage not already in a client’s policy or the existence of a special relationship with the client, an insurance agent or broker has no continuing duty to advise, guide, or direct a client to obtain additional coverage” … .

… [P]laintiffs did not make a specific request for a particular kind of insurance coverage that the defendant failed to procure … . The plaintiffs’ CEO and president testified … [the] plaintiffs needed general liability insurance. The defendant’s vice president of operations testified that the plaintiffs’ application was for general liability insurance, which the record reflects is the kind of insurance the defendant procured for the plaintiffs. In opposition, the plaintiffs failed to raise a triable issue of fact  Spa Castle, Inc. v Choice Agency Corp., 2025 NY Slip Op 04676, Second Dept 8-13-25

Practice Point: An insurance broker’s duty to a client does not extend beyond procuring the coverage requested by the client. There is no duty to advise the client to obtain additional coverage.

 

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COUNTY COURT DECIDED TO ANONYMIZE POTENTIAL AND EMPANELED JURORS IN THIS MURDER TRIAL; THE MAJORITY CONCLUDED THE ANONYMIZED JURY DID NOT CONSTITUTE A MODE OF PROCEEDINGS ERROR AND DID NOT WARRANT INTERVENTION IN THE INTEREST OF JUSTICE; THE TWO-JUSTICE DISSENT ARGUED THE EFFECT OF THE ANONYMIZED JURY ON THE PRESUMPTION OF INNOCENCE WARRANTED REVERSAL IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, over a two-justice dissent, determined County Court’s “unsupported decision to anonymize potential and empaneled jurors” was not a mode of proceedings error and did not require reversal in the interest of justice:

From the dissent:

Considering the significance of the jury’s determination that defendant acted with the intent to kill rather than some lesser objective, the potential effect of empaneling an anonymous jury on defendant’s presumption of innocence warrants corrective action. We need look no further than the Court of Appeals’ characterization of the use of an anonymous jury, even with the proper factual predicate, as an “extraordinary procedure” (People v Flores, 32 NY3d at 1088). The logical import from the Court’s statement is that an error in the process is equally extraordinary and warrants corrective action. Moreover, although defendant was aware of the names of the jurors, that does not resolve the effect that employing an anonymous jury has on the presumption of innocence. Although not expressly stated, the majority’s decision to forgo corrective action in this case appears to be founded on the conclusion that the error itself is not significant; in other words, a harmless error analysis without explicit reference, which, as previously noted, this Court has already rejected when addressing the improper use of an anonymous jury … . All told, regardless of preservation, the principle remains that an appellate court is not in a position to “adjudge the causal effect that the error in empaneling an anonymous jury might have had on the jury’s verdict” … . For these reasons, we believe corrective action is warranted in this case and would reverse and remit for a new trial. People v Goberdhan, 2025 NY Slip Op 04601, Third Dept 8-7-25

Practice Point: Consult this decision for a discussion of the propriety of anonymizing the jury and the effect an anonymized jury may have on the presumption of innocence.

Same “anonymized jurors” issue and result (over a two-justice dissent) in People v Reinfurt, 2025 NY Slip Op 04603, Third Dept 8-7-25

 

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HERE PLAINTIFF DID NOT FILE A NOTE OF ISSUE BY THE COURT-ORDERED DEADLINE BUT NO NINETY-DAY NOTICE HAD BEEN SERVED AND THERE HAD BEEN NO ORDER DISMISSING THE COMPLAINT; NO EXCUSE FOR THE DELAY IS NECESSARY, THERE IS NO SPECIFIC TIME FRAME FOR A MOTION TO RESTORE, AND RESTORATION TO THE ACTIVE CALENDAR IS AUTOMATIC (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to restore the action to the active calendar should have been granted. Even though plaintiff had failed to file a note of issue by a court-ordered deadline, no CPLR 3216 ninety-day notice had been served and there had been no order directing dismissal of the complaint. Therefore plaintiff need not provide an excuse for the delay. Restoration to the calendar was automatic and there was no specific time frame for the motion to restore:

“When a plaintiff has failed to file a note of issue by a court-ordered deadline, restoration of the action to the active calendar is automatic, unless either a 90-day notice has been served pursuant to CPLR 3216 or there has been an order directing dismissal of the complaint pursuant to 22 NYCRR 202.27” … . “Under these circumstances, a motion to restore the action to the calendar should be granted without considering whether the plaintiff had a reasonable excuse for the delay or . . . engaged in dilatory conduct” … . Further, “CPLR 3404 d[oes] not apply . . . to . . . pre-note of issue” actions … . “[S]ince this action was pre-note of issue and could not properly be marked off the calendar pursuant to CPLR 3404, the plaintiff was not required to move to restore the action to the calendar within any specified time frame” … . Tarasiuk v Levoritz, 2025 NY Slip Op 04592, Second Dept 8-6-25

Practice Point: Although plaintiff did not file a note of issue by the court-ordered deadline, because there had been no ninety-day demand and no court order dismissing the complaint, restoration to the active calendar was automatic.

 

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