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IF DEFENDANT DRIVER, COCUZZO, WAS AN EMPLOYEE OF DEFENDANT RANDALL AT THE TIME OF THE ACCIDENT, RANDALL WOULD BE VICARIOUSLY LIABLE; NOT SO IF COCUZZO WAS AN INDEPENDENT CONTRACTOR; THE “EMPLOYER VS INDEPENDENT CONTRACTOR” ISSUE MUST BE RESOLVED BY THE TRIER OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined whether defendant Randall Provisions, Inc. was vicariously liable for defendant Cocuzzo’ s traffic accident depended on a question of fact, i.e., whether Cocuzzo was an employee or an independent contractor. Therefore Randall’s motion for summary judgment should not have been granted:

Randall submitted, inter alia, transcripts of the deposition testimony of Cucuzzo and the deposition testimony of Gregory L. Randall, its principal. Cucuzzo and Gregory both testified that Randall paid Cucuzzo in cash, issued him a 1099 tax form at the end of the year, and did not provide him with any fringe benefits, as well as that Cucuzzo used his own vehicle to travel his merchandising route. These facts all weigh in favor of the conclusion that Cucuzzo was an independent contractor … . However, Randall’s submissions also included evidence indicating the existence of an employer-employee relationship. For example, Cucuzzo testified that Gregory gave him three Pepsi-branded t-shirts to wear while working for Randall … , and that Randall provided him with a daily stipend to reimburse him for gas mileage on top of his regular pay … . Cucuzzo also testified that, when he first began working for Randall, he received approximately two days of training from a Randall worker as to the company’s “way of doing” the merchandising work … . According to Cucuzzo, he regularly checked in with a Randall delivery driver to coordinate their respective work obligations and to ensure that Cucuzzo only reported to a store after the driver had delivered products … . Although his work days fluctuated from week to week, Cucuzzo and Gregory both testified that Gregory would provide Cucuzzo with his work schedule in advance … , as well as determine the list of stores that Cucuzzo was required to visit … . Gaudreau v Cucuzzo, 2025 NY Slip Op 03046, Second Dept 5-21-25

Practice Point: Here there was evidence the driver involved in the accident was an employee and there was evidence he was an independent contractor. If the driver was an employee, his employer would be vicariously liable, not so if the driver was an independent contractor. The issue must be resolved by the trier of fact.

 

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THE BANK’S UNILATERAL ATTEMPT TO REVOKE THE ACCELERATION OF THE DEBT IS PRECLUDED BY THE FORECLOSURE ABUSE PROTECTION ACT (FAPA) WHICH APPLIES RETROACTIVELY TO THIS CASE; THE FORECLOSURE ACTION IS TIME-BARRED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined a letter from the bank in this foreclosure action purporting to revoke a prior acceleration of the debt did not stop the running of the six-year statute of limitations. The action was therefore time-barred. The Second Department noted that the Foreclosure Abuse Prevention Act (FAPA), effective December 30, 2022, applies retroactively to this case. The FAPA essentially provides that once the debt is accelerated the six-year statute of limitations keeps running despite any attempt to “unilaterally waive, postpone, cancel, toll, revive or reset the accrual” of the foreclosure action:

Applying FAPA here, the revocation letter did not de-accelerate the mortgage debt nor did it “revive or reset” the statute of limitations … . Since the plaintiff commenced this action more than six years after the initial acceleration of the mortgage debt, the defendants demonstrated their prima facie entitlement to summary judgment dismissing the complaint insofar as asserted against them as time-barred (see CPLR 213[4] …). US Bank Trust, N.A. v Horowitz, 2025 NY Slip Op 03095, Second Dept 5-21-25

Practice Point: Here the bank attempted to revoke a prior acceleration of the debt by sending defendants a “revocation letter.” The Foreclosure Abuse Prevention Act (FAPA), which applies retroactively to this case, rendered the attempted revocation a nullity. Therefore the letter did not stop the running of the six-year statute of limitations and the foreclosure action was time-barred.​

 

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PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY DEFENDANT PROPERTY OWNER IN THIS STAIRCASE SLIP AND FALL CASE, SUFFICIENTLY IDENTIFIED THE CAUSES OF PLAINTIFF’S FALL AND RAISED A QUESTION OF FACT ABOUT DEFENDANT’S CONSTRUCTIVE NOTICE OF THE CONDITION OF THE STAIRCASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the plaintiff’s deposition testimony adequately identified the causes of his staircase slip and fall and raised a question of fact about the defendant property owner’s constructive notice of the condition of the staircase. Therefore defendant’s motion for summary judgment should not have been granted:

“In a premises liability case, a defendant property owner . . . who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the alleged defective condition nor had actual or constructive notice of its existence” … . “[A] defendant moving for summary judgment can [also] make a prima facie showing of entitlement to judgment as a matter of law by establishing that the plaintiff cannot identify the cause of the plaintiff’s fall without engaging in speculation” … .

Here, the defendant failed to establish, prima facie, that the plaintiff was unable to identify the cause of his fall without resorting to speculation … . In support of her motion, the defendant submitted, among other things, a transcript of the plaintiff’s deposition testimony, wherein he testified that he could not see where he was stepping because of poor lighting conditions in the stairwell, and as he attempted to place his left foot on a step, either the handrail shook or his foot slipped on the carpet, and he felt himself going backward. As the plaintiff’s left foot was in the air, his right foot slipped backwards because the carpet was worn. As such, the plaintiff identified the cause of his fall as a combination of the lighting, the handrail, and the poor condition of the carpet. Therefore, the defendant failed to establish, prima facie, that the plaintiff did not know what had caused him to fall … . In addition, the defendant failed to establish, prima facie, that she did not have actual or constructive notice of the allegedly dangerous condition … . Fitzmorris v Alexander, 2025 NY Slip Op 03044, Second Dept 5-21-25

Practice Point: If a plaintiff identifies a combination of factors which allegedly caused plaintiff’s slip and fall, the plaintiff has not failed to identify the proximate cause of the fall. Here plaintiff alleged poor lighting and either the handrail shook or his foot slipped on the worn carpet. Those allegations were deemed to have sufficiently identified the proximate cause(s) of the fall and to have raised a question of fact about defendant property owner’s constructive notice of the condition of the staircase.

 

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HERE A DISPUTE AMONG BROTHERS ABOUT OWNERSHIP OF REAL PROPERTY WAS RESOLVED BY AN OPEN COURT STIPULATION (CONTRACT) WHICH CANNOT BE INVALIDATED ABSENT FRAUD, COLLUSION, MISTAKE OR ACCIDENT; THEREFORE SUPREME COURT SHOULD HAVE HELD A HEARING BEFORE APPROVING THE SUBSEQUENT APPORTIONMENT OF THE PROPERTY BY A RECEIVER WHICH WAS INCONSISTENT WITH THE STIPULATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the receiver’s (Hafner’s) apportionment of the proceeds of the sale of real property owned by several brothers was inconsistent with the open court stipulation which had attempted to resolve the dispute before the receiver was appointed. Absent fraud, collusion, mistake or accident, a stipulation (contract) should not be invalidated. Therefore, Supreme Court should have held a hearing to determine whether there are grounds for avoiding the terms of the stipulation:

Supreme Court should have held an evidentiary hearing before approving Hafner’s amended final report and account based on the factual issues raised by the parties and the contentious nature of the proceedings … . “Stipulations of settlement are favored by the courts and not lightly cast aside . . . Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation” … . Here, Hafner’s amended final report and account was confirmed without the off-the-top credits owed to John and Thomas pursuant to the stipulation. Further, the amended final report and account allocated receivership costs for insurance that were inconsistent with the allocation of costs agreed to in the stipulation.

Additionally, a hearing is necessary to calculate Hafner’s commissions and to determine whether special circumstances exist warranting a recovery in excess of five percent of the sums received and disbursed … . CPLR 8004 allows a receiver to be paid commissions for his or her work “‘not exceeding five percent of sums received and disbursed by him or her'” … . Feeney v Giannetti, 2025 NY Slip Op 03043, Second Dept 5-21-25

Practice Point: An open court stipulation is a contract which cannot be invalidated absent fraud, collusion, mistake or accident. Here the apportionment of disputed property by the receiver was inconsistent with the stipulation. The court, therefore, should not have upheld the receiver’s apportionment without holding a hearing to determine whether there exist grounds for invalidating the stipulation.

 

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DEFENDANT’S FOR CAUSE CHALLENGE TO A PROSPECTIVE JUROR WHO COULD NOT SAY HE WOULD NOT HOLD DEFENDANT’S FAILURE TO TESTIFY AGAINT HIM SHOULD HAVE BEEN GRANTED; A POLICE OFFICER WHO SPENT ONLY 10 OR 15 MINUTES WITH THE DEFENDANT SHOULD NOT HAVE BEEN ALLOWED TO IDENTIFY THE DEFENDANT IN A VIDEO, DESPITE THE CHANGE IN DEFENDANT’S APPEARANCE (SECOND DEPT).

The Second Department, reversing defendant’s convictions and ordering a new trial, determined defendant’s for cause challenge to a prospective juror who said he would hold defendant’s failure to testify against him should have been granted. Because there will be a new trial, the Second Department noted that a police officer who had limited contact with the defendant should not have been allowed to identify the defendant in a video:

The prospective juror maintained that he was unable to “promise” that his decision would not be affected if the defendant did not testify at trial. Since the prospective juror made statements that cast doubt on his ability to render an impartial verdict under the proper legal standards and did not, upon further inquiry, provide unequivocal assurances that he would be able to render a verdict based solely upon the evidence adduced at trial, the Supreme Court should have granted the defendant’s for-cause challenge … .

… [W]e note that the Supreme Court improvidently exercised its discretion in allowing a police detective to identify the defendant as the individual depicted in a surveillance video. Generally, “‘lay witnesses must testify only to the facts,’ and not to their opinions and conclusions drawn from the facts,’ as it is the jury’s province ‘to draw the appropriate inferences arising from the facts'” … . In determining whether to permit this testimony, a court must consider “whether the witness has had sufficient contact with the defendant to achieve a level of familiarity that renders the lay opinion helpful” … . In making this assessment, courts may consider (1) the witness’s general level of familiarity with the defendant’s appearance, (2) whether the witness’s familiarity spanned an extended period of time and variety of circumstances, (3) whether the witness was familiar with the defendant’s appearance at the time the surveillance footage was taken, and (4) whether the witness was familiar with the defendant’s customary manner of dress or clothing (see id. at 648-649). Here, there was no basis for the court to conclude that the police detective was more likely than the jury to correctly determine whether the defendant was depicted in the surveillance video … . The police detective testified that he spent a total of 10 to 15 minutes with the defendant. While there was testimony that the defendant’s appearance had changed prior to the trial, through weight loss and cutting his hair, “the record is devoid of any other circumstances suggesting that the jury——which had ample opportunity to view [the] defendant——would be any less able than the detective to determine whether [the] defendant was, in fact, the individual depicted in the video” … . People v Williams, 2025 NY Slip Op 03087, Second Dept 5-21-25

Practice Point: A challenge to a prospective juror who cannot state unequivocally he or she would not hold defendant’s failure to testify against the defendant must be granted.

Practice Point: A police officer who is allowed to identify the defendant in a video is offering an opinion, not facts. Here the officer had spent only 10 to 15 minutes with the defendant and therefore was not qualified to offer an opinion on the identity of the person depicted in the video.

 

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IN THIS CHILD VICTIMS ACT CASE ALLEGING DAILY SEXUAL ABUSE BY A TEACHER, THE PLAINTIFF’S AND A FACULTY MEMBER’S DEPOSITION TESTIMONY RAISED A QUESTION OF FACT ABOUT WHETHER DEFENDANT SCHOOL DISTRICT HAD CONSTRUCTIVE NOTICE OF THE TEACHER’S PROPENSITY FOR ABUSE AND THE ABUSE ITSELF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant school district’s motion for summary judgment in this Child Victims Act case should not have been granted. Plaintiff alleged daily sexual abuse by a teacher. The school district submitted plaintiff’s deposition transcript and a faculty member’s deposition transcript in support of the summary judgment motion. The plaintiff’s allegations of daily abuse and the faculty member’s testimony that students had informed him of the abuse and he believed other teachers were aware of the abuse raised questions of fact about negligent hiring and retention of the teacher and negligent supervision of the plaintiff:

In support of their motion, the defendants submitted … a transcript of the deposition testimony of the plaintiff, who testified that over the course of the school year, while he was in the seventh grade, he was sexually abused by the teacher daily and that the teacher’s abusive propensities were common and open knowledge in the middle school’s community. The defendants also submitted a transcript of the deposition testimony of a faculty member who was employed by the school district at the same time as the teacher, who testified that students had informed him that the teacher engaged in inappropriate conduct and that he believed other teachers were aware of said alleged conduct. Therefore, the defendants’ own submissions demonstrated the existence of triable issues of fact as to whether the defendants had actual or constructive notice of the alleged abuse of the plaintiff and of the teacher’s alleged abusive propensities and as to whether the defendants’ supervision of the plaintiff and the teacher was negligent … . Since the defendants failed to meet their prima facie burden, the court should have denied the defendants’ motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff’s opposition papers … . T.F. v Clarkstown Cent. Sch. Dist., 2025 NY Slip Op 03042, Second Dept 5-21-25

Practice Point: In Child Victims Act cases alleging frequent sexual abuse by a teacher, courts are increasingly willing to hold that the plaintiff’s allegations of frequent abuse alone are sufficient to raise a question of fact about constructive notice on the part of the school.

 

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THE AFFIDAVIT SUBMITTED TO DEMONSTRATE PLAINTIFF HAD POSSESSION OF THE NOTE PRIOR TO COMMENCING THE FORECLOSURE ACTION WAS HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate standing in this foreclosure action. The affidavit submitted to demonstrate plaintiff had possession of the note prior to commencing the action was hearsay:

… [T]he plaintiff relied on Harris’s affidavit to demonstrate that it had possession of the note prior to commencing this action. Harris averred, in relevant part, that the plaintiff received physical delivery of the original note on September 5, 2013. As the defendant correctly notes, Harris failed to attach any business record to her affidavit to demonstrate that fact or to aver that she had personal knowledge of the physical delivery of the note. Accordingly, Harris’s averment that the plaintiff had possession of the note prior to the commencement of this action was inadmissible hearsay and insufficient to establish, prima facie, the plaintiff’s standing … . Nationstar Mortage, LLC v Guarino, 2025 NY Slip Op 02925, Second Dept 5-14-25

Practice Point: Whoever submits an affidavit stating the plaintiff in a foreclosure action had possession of the note before the action was commenced must attach a probative business record or demonstrate personal knowledge of the delivery of the note, not the case here.

 

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FATHER’S PETITIONS FOR A MODIFICATION OF CUSTODY RAISED FACTUAL QUESTIONS REQUIRING A HEARING; MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Family Court and remitting the case for a hearing, determined father’s petitions for a modification of custody should not have been dismissed without a hearing:

… Family Court improperly dismissed, without a hearing, the father’s amended modification petition and violation petition. Contrary to the court’s determination, the father’s assertions, which were supported by the requisite threshold evidentiary showing, demonstrated factual issues so as to require a hearing on the issue of whether the existing parental access arrangement continued to serve the child’s best interests … . Among other things, the father sufficiently alleged that since the custody order was issued, he has achieved seven years of sobriety. Moreover, the father sufficiently alleged that the mother made a statement, which she does not deny making, with the intent or effect of estranging the child from, or creating resentment towards, the father in violation of the custody order. The issue of whether the intent or subsequent effect of the statement constituted a violation of the custody order should have been resolved at a hearing … . Matter of Sanna v Delong, 2025 NY Slip Op 02922, Second Dept 5-14-25

Practice Point: Once again a Family Court ruling is reversed because a hearing was not held. Here, in petitions for a modification of custody, father cited his years of sobriety and a statement attributed to mother that she intended to estrange the child from father. That was enough to warrant a hearing on the petitions.

 

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THE JUDGMENT OF FORECLOSURE AND SALE WAS REVERSED ON APPEAL; THE DEFENDANT IN THE FORECLOSURE ACTION DID NOT SEEK A STAY PENDING APPEAL; THE FACT THAT THE NOTICE OF PENDENCY, FILED BY THE BANK AT THE OUTSET OF THE FORECLOSURE PROCEEDINGS, WAS STILL IN EFFECT AT THE TIME OF THE FORECLOSURE SALE DID NOT AFFECT THE TRANSFER OF TITLE TO A GOOD FAITH PURCHASER AT THE FORECLOSURE SALE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Brathwaite Nelson, determined the defendant in the foreclosure action, Yesmin, upon reversal of the judgment of foreclosure and sale on appeal, was not entitled to cancel and discharge the referee’s deed transferring title to a good faith purchaser of the foreclosed property. It is significant here that the defendant in the foreclosure action did not seek a stay pending appeal. The notice of pendency, filed by the bank in the foreclosure action, which was still in effect at the time of the foreclosure sale, did not affect the title acquired by the good faith purchaser:

This appeal raises the question of what effect an extant notice of pendency has on the title to real property acquired by a third party from a judicial foreclosure sale when the judgment of foreclosure and sale is reversed on the appeal of a defendant to the foreclosure action. For the reasons that follow, we hold that a notice of pendency that was unexpired at the time of the foreclosure sale has no effect on the title acquired by a good faith purchaser for value from a sale conducted pursuant to the judgment of foreclosure and sale. * * *

Once a judgment is entered, the need to obtain a stay pending appeal in order to protect the right to restitution of the property is shared equally by a defendant or a plaintiff against whom the judgment is entered. Where a judgment has been entered against a plaintiff, “the plaintiff’s right to impair the marketability of the property during the pendency of an appeal [is conditioned] upon the issuance of a discretionary CPLR 5519(c) stay” … . Thus, regardless of whether the judgment is issued in favor of a defendant or the plaintiff, once a judgment is entered, a stay is necessary to protect the property, and in the absence of a stay, the winning party is free to transfer the property as it sees fit. * * *

Since [the good faith purchaser of the foreclosed property] established that it is “a purchaser in good faith and for value” whose title would be affected by restitution of Yesmin’s property rights lost by the judgment of foreclosure and sale, Yesmin may not seek restitution by canceling the referee’s deed and, instead, is limited to monetary relief against the plaintiff to the foreclosure action (CPLR 5523 …). Yesmin v Aliobaba, LLC, 2025 NY Slip Op 02964, Second Dept 5-14-25

Practice Point: If the defendant in a foreclosure action which is appealed does not seek a stay pending appeal, the reversal on appeal does not affect title transferred to a good faith purchaser at the foreclosure sale.

 

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ALTHOUGH A CONSTRUCTION MANAGER IS GENERALLY NOT LIABLE FOR INJURIES TO A WORKER UNDER LABOR LAW 240(1) OR 241(6), HERE THE CONSTRUCTION MANAGER, BY CONTRACT, WAS RESPONSIBLE FOR SAFETY AT THE WORKSITE AND SUPERVISED THE WORK; THEREFORE THE CONSTRUCTION MANAGER WAS A STATUTORY AGENT OF THE PROPERTY OWNER AND POTENTIALLY LIABLE UNDER LABOR LAW 240(1) (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the construction manager, Tishman, was the property owner’s statutory agent in charge of safety at the worksite. Therefore Tishman could be liable for injury to a worker pursuant to Labor Law 240(1):

“A construction manager of a work site is generally not responsible for injuries under Labor Law . . . [§ ] 240(1) . . . or § 241(6) unless it functions as an agent of the property owner or general contractor in circumstances where it has the ability to control the activity which brought about the injury” … . “The label given a defendant, whether ‘construction manager’ or ‘general contractor,’ is not determinative” … . “Instead, the core inquiry is whether the defendant had the ‘authority to supervise or control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition'” … .

Here, in support of his motion for summary judgment, the plaintiff submitted the construction management services contract, which charged Tishman with, inter alia, enforcing subcontractors’ compliance with safety requirements and taking precautions to minimize the risk of injuries. The contract further gave Tishman the right to choose the means and methods of construction. Although Tishman did not directly supervise or control the plaintiff’s work, Tishman’s safety manager for the project testified at his deposition that he was “in charge of safety at . . . [the] project full-time.” In addition, a foreperson for another trade testified at his deposition that Tishman would correct other workers who were performing their work in an unsafe manner. Under these circumstances, Tishman was a statutory agent of DDC and was, therefore, potentially liable for the plaintiff’s alleged injuries under Labor Law § 240(1) … . Weekes v Tishman Tech. Corp., 2025 NY Slip Op 02959, Second Dept 5-14-25

Practice Point: Although a construction manager is generally not liable to an injured worker under Labor Law 240(1) or 241(6), here the construction manager was, by contract, a statutory agent of the property owner responsible for the supervision of the work and the safety of the workers. Statutory agents of the property owner or general contractor are potentially liable to injured workers under Labor Law 240(1) and 241(6).

 

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