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THE EXCLUSIONARY PROVISIONS IN THIS FIRE INSURANCE POLICY WERE AMBIGUOUS AND MUST THEREFORE BE CONSTRUED AGAINST THE INSURER; PLAINTIFF IS ENTITLED TO COVERAGE FOR THE FIRE DAMAGE DESPITE THE UNAUTHORIZED OCCUPANTS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the exclusionary provisions of the fire insurance policy were ambiguous and therefore must be construed in favor of the insured. At the time of the fire unauthorized occupants were living in the building and the insurer disclaimed coverage on that ground:

Here, the disputed exclusionary provisions read as follows:

“C. We do not cover loss resulting directly or indirectly:

Vacancy or Occupancy

1. While a described building, whether intended for occupancy . . . is vacant or unoccupied beyond a period of sixty (60) consecutive days.

Increase in Hazard

2. While the hazard is increased by any means within the control or knowledge of the insured.”

​Construed in the context of the contract as a whole, the plain and ordinary meaning of these exclusionary provisions is not apparent. The exclusionary provisions at issue are listed in the supplemental special provisions that modified the original dwelling insurance policy. The contract provides for certain general exclusions in parts A and B, and thereafter included the above referenced supplemental general exclusions as part C. Part A provides that, “[w]e do not insure for loss caused directly or indirectly by any of the following” … , and lists conditions or events that could damage the insured premises, including, for example, earth movement, water damage, and power failure. Part C, as referenced above, does not contain any language after “directly or indirectly.” Thus, it is not clear whether the “vacancy or occupancy” or “increase in hazard” must cause the loss or whether the condition must simply exist at the time of the loss. Because the exclusionary provisions are ambiguous, and any ambiguity is construed against the insurer in favor of the insured, the plaintiff has established her prima facie entitlement to coverage … . Eubanks v New York Prop. Ins. Underwriting Assn., 2025 NY Slip Op 04460, Second Dept 7-30-25

Practice Point: At the time of the fire the building was inhabited by “unauthorized occupants” and coverage was disclaimed. However, the exclusionary provisions of the policy were ambiguous. The ambiguity must be construed in favor of the insured. Therefore the disclaimer constituted a breach of contract.

 

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THERE IS A QUESTION OF FACT WHETHER PLAINTIFF WAS DEFENDANT’S EMPLOYEE SUCH THAT THE PROTECTIONS OF THE LABOR LAW APPLY IN THIS LADDER-FALL CASE; DEFENDANT AGREED TO FIX PLAINTIFF’S CAR IN RETURN FOR PLAINTIFF’S FIXING THE ROOF OF DEFENDANT’S REPAIR SHOP (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether the relationship between defendant Houghtaling and plaintiff was an “employment” relationship such that the Labor Law applies to plaintiff’s fall from a ladder. Houghtaling agreed to repair plaintiff’s car in return for plaintiff’s seal-coating the roof of defendant’s automotive repair ship. Houghtaling argued plaintiff was a “volunteer,” not an employee:

… [T]he defendants failed to eliminate triable issues of fact as to whether the plaintiff was a hired worker entitled to the protections of the Labor Law. Houghtaling, who owned and operated the repair shop, testified at his deposition that a friend of the plaintiff had approached him about helping the plaintiff, who was “down and out,” by fixing the plaintiff’s car. Houghtaling responded that the plaintiff should bring in his car and that he would “do the best that [he] c[ould], like [he did] for everybody.” When the plaintiff came in, Houghtaling told him that the repairs would cost $900. The plaintiff asked what he could do for Houghtaling “in return.” According to Houghtaling, the roof of the shop had been leaking for five years and he had intended to fix the roof himself. Houghtaling told the plaintiff that he could seal coat the roof of the shop. Houghtaling performed the repairs on the plaintiff’s car at no charge, and the following weekend, the plaintiff began the work on the roof.

Under these circumstances, triable issues of fact remain as to whether the arrangement between the plaintiff and Houghtaling bore “the traditional hallmarks of an employment relationship” … , including a “mutual obligation . . . revealing an economic motivation for completing the task” and the employer’s right to decide “whether the task undertaken by the employee has been completed satisfactorily” … . Zampko v Houghtaling, 2025 NY Slip Op 04507, Second Dept 7-30-25

Practice Point: The protections of the Labor Law apply where there is a employment relationship between plaintiff and defendant. Here defendant agreed to fix plaintiff’s car in return for plaintiff’s repairing the repair shop’s roof. Plaintiff fell from a ladder when working on the roof. There was a question of fact whether the agreement created an employment relationship entitling plaintiff to the Labor Law protections.

 

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CPLR 7003(1), WHICH REQUIRES A JUDGE TO FORFEIT $1000 FOR AN IMPROPER DENIAL OF HABEAS CORPUS RELIEF, IS UNCONSTITUTIONAL AS A VIOLATION OF THE COMPENSATION CLAUSE OF THE NYS CONSTITUTION AND AS A VIOLATION OF THE SEPARATION OF POWERS DOCTRINE (SECOND DEPT). ​

The Second Department, in a comprehensive full-fledged opinion by Justice Golia, in a matter of first impression, determined CPLR 7003(1), which requires a judge to forfeit $1000 when a petitioner’s request for habeas corpus relief is improperly denied, is unconstitutional. The statute violates the Compensation Clause of the NYS Constitution and the separation of powers doctrine:

… [W]hile CPLR 7003(c) is not a direct diminution of judicial compensation, the language of that provision explicitly “targets judges for disadvantageous treatment,” as it provides that a $1,000 forfeiture be paid personally by a judge who does not issue a writ of habeas corpus where one should have been issued … . CPLR 7003(c) is, thus, an indirect diminution of the salary of judges within the meaning of the Compensation Clause of the New York State Constitution. Accordingly, the Supreme Court properly determined that “[b]y its nature, CPLR 7003(c) singles out judges for financially adverse treatment because of their exercise of their judicial functions and does so in a manner that discriminates based on how they decide an application for a writ. To impose a forfeiture on a judge based on which way they decide an application undermines the core objective of the [C]ompensation [C]lause of protecting judicial independence.” * * *

By imposing a penalty on a judge who refuses a petitioner’s request for habeas corpus [*14]relief where such relief should have been issued, the Legislature, through CPLR 7003(c), is interfering with judicial functions by incentivizing one specific outcome, namely, issuance of the writ, because a judge only faces a penalty if he or she refuses to issue a writ. Such influence is impermissible, as “‘the mere existence of the power to interfere with or to influence the exercise of judicial functions contravenes the fundamental principles of separation of powers embodied in our State constitution and cannot be sustained'” … . Poltorak v Clarke, 2025 NY Slip Op 04496, Second Dept 7-30-25

Practice Point: CPLR 7003(1) requires a judge to forfeit $1000 for an improper denial of habeas corpus relief. The statute violates the Compensation Clause of the NYS Constitution and the separation of powers doctrine.

 

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THE JUDGE SHOULD NOT HAVE ISSUED A PROTECTIVE ORDER REQUIRING PLAINTIFFS’ COUNSEL TO INFORM DEFENDANTS’ FORMER EMPLOYEES THAT COUNSEL’S INTERESTS ARE ADVERSE TO THEIRS AND TO RECOMMEND THE FORMER EMPLOYEES RETAIN COUNSEL BEFORE ANY DISCUSSION WITH PLAINTIFFS’ COUNSEL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge in this action alleging sexual abuse of the plaintiffs in the steam rooms of defendants’ fitness clubs should not have issued a protective order concerning interviews of defendants’ former employees by plaintiffs’ counsel. The order precluded plaintiffs’ counsel from communicating with any former employees without advising them that their interests are, or are reasonably likely to become, adverse to counsel’s interests and recommending that the former employees retain counsel before continuing the discussion:

Supreme Court improvidently exercised its discretion in granting that branch of the defendants’ motion which was pursuant to CPLR 3103 for an order precluding the plaintiffs’ counsel from communicating with any former employees of Equinox without advising them that their interests are, or are reasonably likely to become, adverse to counsel’s clients’ interests and recommending that the former employees retain counsel before continuing the discussion. The defendants failed to make the requisite showing pursuant to CPLR 3103(a) to warrant the issuance of a protective order … . The defendants’ allegations of prejudice in the absence of a protective order were both conclusory and speculative … . G.B. v Equinox Holdings, Inc., 2025 NY Slip Op 04452, Second Dept 7-30-25

Practice Point: Here a protective order restricting communications between plaintiffs’ counsel and defendants’ former employees was reversed because the need for the order was not adequately demonstrated by conclusory and speculative allegations.

 

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HEARSAY STATEMENTS IN A MEDICAL RECORD ARE ADMISSIBLE IN A PERSONAL INJURY ACTION WHEN (1) THE STATEMENTS ARE GERMANE TO DIAGNOSIS AND TREATMENT AND (2) THE STATEMENTS CAN BE ATTRIBUTED TO THE PLAINTIFF (SECOND DEPT).

The Second Department, affirming the denial of plaintiff’s summary judgment motion, in a full-fledged opinion by Justice Connolly, determined that hearsay statements attributed to plaintiff in a medical record were admissible and created a question fact in this Labor Law 240(1) ladder-fall case. Plaintiff alleged he was knocked off an A-frame ladder by a piece of sheetrock. However, the medical record indicated he was on a ladder lifting sheetrock when he felt a pull in his lower back and shoulder. The opinion is comprehensive and offers guidance to the admissibility of hearsay statements in a medical record:

The first page of the Precision Pain medical records contains, among other things, the following statement: “Accident: Patient was on a ladder, was picking up heavy [sheetrock] and felt a pull on his lower back and R shoulder.” On the third and fourth pages, the following three statements appear: “Incident patient described the competent medical cause of this injury? YES. “Are the patient’s complaints consistent with his/her history of injury? YES. “Is the patient’s history of the injury consistent with my objective findings? YES.” * * *

Because we find that the challenged statement was germane to medical diagnosis and treatment, we conclude that it was part of Khaimov’s [the doctor’s] regular business practice to record the challenged statement.

Nevertheless, this conclusion “satisfies only half the test” … . Each participant in the chain producing the challenged statement in the Precision Pain medical records, “from the initial declarant to the final entrant, must be acting within the course of regular business conduct or the declaration must meet the test of some other hearsay exception” … . Firsthand accounts from the patient to the medical provider are presumptively reliable, as the patient has a clear motivation to report accurately … . However, “where the source of the information on the hospital or doctor’s record is unknown, the record is inadmissible” … . * * *

Considering both the plaintiff’s deposition testimony and the statements on the third and fourth pages of the Precision Pain medical records, [defendant] sufficiently established that the plaintiff was the source of the information in the challenged statement … . Pillco v 160 Dikeman St., LLC, 2025 NY Slip Op 04495, Second Dept 7-30-25

Practice Point: Consult this opinion for a comprehensive discussion of the two-prong test for the admissibility of hearsay statements in a medical record.

 

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EVEN WHERE DEFENDANT PLED GUILTY AND WAIVED APPEAL WITH THE UNDERSTANDING HE WILL NOT BE AFFORDED YOUTHFUL OFFENDER STATUS A MOTION TO VACATE THE SENTENCE BASED ON THE JUDGE’S FAILURE TO CONSIDER YOUTHFUL OFFENDER STATUS IS AVAILABLE (SECOND DEPT).

The Second Department, reversing Supreme Court and vacating defendant’s sentence, in a full-fledged opinion by Justice Wan, determined the sentencing judge’s failure to consider defendant’s youthful offender status can be raised in a motion to vacate the sentence, despite the failure to appeal the conviction on that ground. Here defendant pled guilty and waived appeal with the understanding that he would not be afforded youthful offender status:

In this appeal, we must consider whether a defendant who has failed to take a direct appeal from a judgment of conviction and sentence may, in the first instance, seek to set aside his or her sentence pursuant to CPL 440.20 on the ground that the Supreme Court failed to make a determination as to whether the defendant was eligible for youthful offender treatment. We hold that, under such circumstances, a defendant may seek to set aside his or her sentence pursuant to CPL 440.20. * * *

Here, as the People conceded in opposition to the defendant’s motion, the defendant was an “eligible youth” (see CPL 720.10). However, despite the defendant’s status as an “eligible youth,” the Supreme Court failed to make the required youthful offender determination at the sentencing proceeding. Since the court was required to make this determination on the record at sentencing, the court’s failure to follow this statutorily-mandated procedure rendered the defendant’s sentence invalid as a matter of law (see id. § 440.20[1] …). People v Steele, 2025 NY Slip Op 04494, Second Dept 7-30-25

Practice Point: Even where a defendant pleads guilty with the understanding he will not be afforded youthful offender status and waives appeal, the sentencing judge must consider affording defendant youthful offender status. The failure to appeal the conviction is not a bar to a motion to vacate the sentence on this ground.

 

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IN THIS FORECLOSURE ACTION, THE REFEREE’S AFFIDAVIT DID NOT LAY A PROPER FOUNDATION FOR ALL THE DOCUMENTS RELIED UPON; THEREFORE THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a proper foundation was not laid for the documents supporting the referee’s report:

In computing the amount due, the referee relied upon an affidavit of merit from an authorized signer of PNC Bank, National Association (hereinafter PNC). Although the referee stated in his report that PNC was the plaintiff’s servicer, the documents in the record indicate that the plaintiff and PNC merged into one entity. Although the authorized signer stated in her affidavit that she was personally familiar with the record-keeping practices and procedures of PNC, her employer, she did not state that “she was personally familiar with the record-keeping practices and procedures” of the plaintiff … or that the records of any other entity, such as the plaintiff or a prior loan servicer, “were provided to [PNC] and incorporated into [PNC’s] own records, that [PNC] routinely relied upon such records in its business, or that she had personal knowledge of business practices and procedures of any other relevant entity” … . Consequently, the affidavit did not provide a proper foundation for the business records allegedly submitted with the affidavit. Further, although business records are included in the record, the referee stated that the documents submitted by the plaintiff were the authorized signer’s affidavit “and annexed exhibit: copies of Mortgage and Note,” and the referee did not refer to the business records. National City Mtge. Co. v Wercberger, 2025 NY Slip Op 04488, Second Dept 7-30-25

Practice Point: Consult this decision for an example of common flaws in the evidentiary foundation for documents submitted in support of a referee’s report in a foreclosure proceeding.

 

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THE ZONING BOARD’S DENIAL OF A STREET FRONTAGE VARIANCE WAS NOT SUPPORTED BY SPECIFIC FACTUAL FINDINGS MAKING COURT-REVIEW IMPOSSIBLE; MATTER REMITTED TO THE BOARD (SECOND DEPT).

The Second Department, reversing Supreme Court and remitting the matter to the town Zoning Board of Appeals, determined the Board must set forth its reasons for denying a variance. Without specific factual support for the denial in the record, court review is impossible:

… [T]he Board failed to sufficiently set forth the specific factual support in the record, or the specific findings, upon which it relied in denying the requested street frontage variance … . Although at the hearing, certain Board members put on the record their individual grounds for denying a street frontage variance, the Board granted the request for an area variance for the same proposed lot, approving the three-lot subdivision. Thus, the record contains inconsistencies between the written determination and the hearing transcript with respect to the grounds for the Board’s determination.

When the Supreme Court, in effect, affirmed the Board’s denial of a street frontage variance, the court improperly “surmised or speculated as to how or why the board reached its determination” … . Accordingly, absent adequate grounds to support the challenged determination, the judgment must be reversed and the matter remitted to the Board so that it may set forth factual findings in proper form … . Matter of Mancuso v Zoning Bd. of Appeals of the Town of Mount Pleasant, 2025 NY Slip Op 04479, Second Dept 7-30-25

Practice Point: A Zoning Board of Appeals must support its ruling with a specific factual record to allow court review. If the record does not support the ruling, the court is forced to speculate. Here the matter was remitted to the Board to make factual findings.​

 

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FILING A REQUEST FOR JUDICIAL INTERVENTION CONSTITUTED TAKING PROCEEDINGS FOR THE ENTRY OF JUDGMENT WITHIN ONE YEAR OF DEFENDANT’S DEFAULT; THE FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED AS ABANDONED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined this foreclosure action should not have been dismissed as abandoned on the ground plaintiff failed to take action within one year of defendant’s default. In fact plaintiff filed a request for judicial intervention which constituted taking “proceedings for the entry of judgment within one year after the default:”

Pursuant to CPLR 3215(c), “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed.” To avoid dismissal pursuant to CPLR 3215(c), “[i]t is not necessary for a plaintiff to actually obtain a default judgment within one year of the default” … . “Rather, ‘as long as proceedings are being taken, and these proceedings manifest an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal'” … .

Here, the plaintiff demonstrated that, within one year after the defendant’s default, the plaintiff filed a request for judicial intervention that sought a foreclosure settlement conference as mandated by CPLR 3408. “Where, as here, a settlement conference is a necessary prerequisite to obtaining a default judgment (see CPLR 3408[a], [m]), a formal judicial request for such a conference in connection with an ongoing demand for the ultimate relief sought in the complaint constitutes ‘proceedings for entry of judgment’ within the meaning of CPLR 3215(c)” … . U.S. Bank N.A. v Newson, 2025 NY Slip Op 04269, Second Dept 7-23-25

Practice Point: The CPLR does not require a plaintiff to obtain a default judgment within a year of the default to preclude dismissal. Plaintiff need only take some action which indicates it does not intend to abandon the action. Here the filing of a request for judicial intervention was sufficient.

 

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PLAINTIFF, A DEVELOPMENTALLY DISABLED STUDENT, WAS KNOCKED OVER BY ANOTHER STUDENT; THE DEFENDANT SCHOOL HAS A DUTY TO PROPERLY SUPERVISE ITS STUDENTS; QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT IN FAVOR OF DEFENDANT SCHOOL (THE YOUNG ADULT INSTITUTE, INC.) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact precluding summary judgment in favor of defendant in this negligent supervision case. Plaintiff, a developmentally disable adult and a member of defendant Young Adult Institute, Inc. (YAI) was knocked over in a parking lot by a fellow student:

Programs such as YAI that provide services to developmentally disabled adults have a duty to adequately supervise such students in their care, “and are liable for foreseeable injuries proximately related to the absence of adequate supervision” … . “‘[I]n determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated'” … . “‘Even if a breach of the duty of supervision is established, it must [also] be demonstrated that such negligence was a proximate cause of the injuries sustained'” … . “‘The test for causation is whether under all the circumstances the chain of events that followed the negligent act or omission was a normal or foreseeable consequence of the situation created by the school’s negligence'” … . Sclafani v Young Adult Inst., Inc., 2025 NY Slip Op 04266, Second Dept 7-23-25

Practice Point: ​A provider of services to developmentally disabled adults has a duty to adequately supervise its students. Here there were questions of fact about whether supervision was adequate. Plaintiff student was knocked over by another student in a parking lot.

 

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