You are here: / Second Department

Tag Archive for: Second Department

,

IN A SLIP AND FALL CASE, TO DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION, THE DEFENDANT MUST PROVE THE AREA OF THE SLIP AND FALL WAS CLEANED OR INSPECTED CLOSE IN TIME TO THE INCIDENT; PROOF OF GENERAL CLEANING OR INSPECTION PRACTICES IS NOT ENOUGH; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant in this black-ice slip and fall case did not demonstrate when the area was last inspected or cleaned. Therefore the defendant did not demonstrate a lack of constructive notice of the condition. Proof of general cleaning and inspection practices is insufficient. Defendant’s motion for summary judgment should not have been granted:

“A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence” … . “Accordingly, a property owner seeking summary judgment in a slip-and-fall case ‘has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it'” … .

Here, the defendant failed to submit sufficient evidence establishing, prima facie, that it did not have constructive notice of the alleged black ice condition. The defendant’s station cleaner provided only general information about his cleaning and inspection practices, and he failed to specify when he last cleaned or inspected the area where the plaintiff fell relative to the time of the accident … . Ravello v Long Is. R.R., 2025 NY Slip Op 02361, Second Dept 4-23-25

Practice Point: There are hundreds of reversals on this ground. A lack of constructive notice of a condition alleged to have caused a slip and fall can only be demonstrated by proof the area was actually cleaned or inspected close in time to the fall. Proof of general cleaning or inspection practices will not support a summary judgment.

 

,

A JUDGE SHOULD NOT, SUA SPONTE, ORDER THE DISMISSAL OF A COMPLAINT ABSENT “EXTRAORDINARY CIRCUMSTANCES,” NOT PRESENT HERE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were no extraordinary circumstances to justify the judge’s “sua sponte” dismissal of the complaint:

“A court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal” … . Here, no extraordinary circumstances existed warranting dismissal of the complaint … . Accordingly, the Supreme Court should not have, sua sponte, directed dismissal of the complaint. Project Guardianship v Chai 91 St. Marks PLC, LLC, 2025 NY Slip Op 02360, Second Dept 4-23-25

Practice Point: There have been many reversals of “sua sponte” dismissals of complaints.

 

,

A CONDITION WHICH MIGHT BE DEEMED OPEN AND OBVIOUS CAN BECOME A “TRAP FOR THE UNWARY” WHEN A PERSON IS DISTRACTED; HERE PLAINTIFF SLIPPED AND FELL WHEN HIS FOOT WAS CAUGHT IN A DEPRESSION BETWEEN DEFENDANT’S FENCE AND THE SIDEWALK AS PLAINTIFF TRIED TO SEPARATE TWO FIGHTING DOGS; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted on the ground the condition was open and obvious. Plaintiff was trying to separate two fighting dogs when his foot was caught in a depression between defendant’s fence and the sidewalk. The depression was about a foot wide and five or six inches deep. The court noted that a condition that might ordinarily be deemed open and obvious can be a “trap or the unwary” when a person is distracted:

“Property owners have a common-law duty to maintain property in a reasonably safe condition, but there is no duty to protect or warn against conditions that are open and obvious and not inherently dangerous” … . However, “[w]hether a hazard is open and obvious cannot be divorced from the surrounding circumstances” … . “A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted” … . “[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury” … .

Here, the defendants failed to establish, prima facie, that the alleged condition was open and obvious and not inherently dangerous under the circumstances surrounding the accident. In addition, the defendants failed to establish, prima facie, that they lacked constructive notice of the alleged defective condition … . Niyazov v Ditmas Mgt. Corp., 2025 NY Slip Op 02349, Second Dept 4-23-25

Practice Point: This decision presents an example of when an “open and obvious” condition can be deemed a “trap for the unwary” for someone who is distracted. Here plaintiff was trying to separate two fighting dogs when his foot became caught in a five-or-six-inch-deep depression between defendant’s fence and the sidewalk.​

 

, ,

PLAINTIFF’S MOTION TO AMEND THE COMPLAINT TO ADD ALLEGATIONS SUPPORTING “PIERCING THE CORPORATE VEIL” SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend the complaint to add allegations supporting “piercing the corporate veil” in this breach of contract action should have been granted:

“Broadly speaking, the courts will disregard the corporate form, or, to use accepted terminology, pierce the corporate veil, whenever necessary to prevent fraud or to achieve equity” … . “Because a decision whether to pierce the corporate veil in a given instance will necessarily depend on the attendant facts and equities, the New York cases may not be reduced to definitive rules governing the varying circumstances when the power may be exercised” … . However, “[g]enerally, a plaintiff seeking to pierce the corporate veil must show that (1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff’s injury. The plaintiff must adequately allege the existence of corporate obligation and that defendant exercised complete domination and control over the corporation and abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice” … . “[T]he corporate veil will be pierced to achieve equity, even absent fraud, when a corporation has been so dominated by an individual or another corporation and its separate entity so ignored that it primarily transacts the dominator’s business instead of its own and can be called the other’s alter ego. In determining whether to pierce the corporate veil, [g]enerally considered are such factors as whether there is an overlap in ownership, officers, directors and personnel, inadequate capitalization, a commingling of assets, or an absence of separate paraphernalia that are part of the corporate form” … . Another factor to be considered is whether the corporation and its owners shared “common office space” … . “A cause of action under the doctrine of piercing the corporate veil is not required to meet any heightened level of particularity in its allegations” … , and “a fact-laden claim to pierce the corporate veil is unsuited for resolution on a pre-answer, pre-discovery motion to dismiss” … . HLI Rail & Rigging, LLC v Franklin Exhibit Mgt. Group, LLC, 2025 NY Slip Op 02330, Second Dept 4-23-25

Practice Point: Consult this decision for a concise description of the criteria for “piercing the corporate veil” in the context of a motion to amend the complaint to add the relevant allegations.

 

,

BECAUSE THE RES IPSA LOQUITUR DOCTRINE IS DEPENDENT UPON CIRCUMSTANTIAL EVIDENCE FROM WHICH INFERENCES MUST BE DRAWN, SUMMARY JUDGMENT IS USUALLY NOT APPROPRIATE; HERE A GARAGE DOOR CLOSED OR FELL ON PLAINTIFF; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the res ipsa loquitur doctrine was not a proper basis for granting plaintiff’s summary judgment motion. Plaintiff was injured when a garage door at defendant’s vehicle-repair shop closed on her as she left the customer waiting area. Plaintiff could have used an exterior door rather than the open garage door:

“The doctrine of res ipsa loquitur permits an inference of negligence to be drawn solely from the happening of an accident” … . It requires evidence of an event which ordinarily does not occur in the absence of negligence, was caused by an agency or instrumentality within the exclusive control of the defendant, and was not due to any voluntary action or contribution on the part of the plaintiff … . “Since the circumstantial evidence allows but does not require the jury to infer that the defendant was negligent, res ipsa loquitur evidence does not ordinarily or automatically entitle the plaintiff to summary judgment, even if the plaintiff’s circumstantial evidence is unrefuted” … . Summary judgment on the issue of liability should only be granted “in the rarest of res ipsa loquitur cases” where “the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of [the] defendant’s negligence is inescapable” … .

Here, the plaintiff did not establish, by sufficiently convincing circumstantial proof, “that the inference of [the] defendant’s negligence is inescapable” … . Specifically, the plaintiff failed to submit sufficiently convincing circumstantial proof that the garage door and its mechanism were within the defendant’s exclusive control, and that the accident was not due to any fault on the part of the plaintiff … . “‘In those cases where conflicting inferences may be drawn, choice of inference must be made by the jury'” … . Hafeez v TT of Freeport, 2025 NY Slip Op 02327, Second Dept 4-23-25

Practice Point: Consult this decision for insight into the proof requirements for liability under the res ipsa loquitur doctrine.​

Practice Point: Because the res ipsa loquitur doctrine is dependent upon circumstantial evidence, summary judgment is rarely appropriate even where plaintiff’s evidence is unrefuted.

 

, ,

ONLY THE COURT CHARGED WITH EMPANELING THE GRAND JURY CAN ORDER THE RELEASE OF THE GRAND JURY MINUTES; IN ORANGE COUNTY THE COURT CHARGED WITH EMPANELING GRAND JURIES IS COUNTY COURT; THEREFORE THE PETITON FOR A WRIT OF PROHIBITION PROHIBITING A SUPREME COURT JUSTICE FROM ORDERING THE RELEASE OF THE GRAND JURY MINUTES WAS GRANTED (SECOND DEPT).

The Second Department granted a petition for a writ of prohibition to prohibit a Supreme Court justice from ordering the release of grand jury minutes to the plaintiff in a civil action. Only the court charged with empaneling the grand jury, in this case County Court, can order release of the minutes:

The orders … directing the release of certain grand jury minutes in the subject criminal action and directing the clerk of the court to provide those minutes to the plaintiff’s counsel in the underlying civil action, are subject to prohibition for exceeding the Supreme Court’s authorized powers, as “only the court in charge of a Grand Jury may release testimony from the secrecy requirements of CPL 190.25(4)” … . In Orange County, only terms of the County Court have been charged with the empaneling of grand juries at the times relevant to this proceeding … , and as such, that was the court in charge of the grand jury in the subject criminal action, and the only court authorized to release those grand jury minutes … . Matter of Hoovler v Vazquez-Doles, 2025 NY Slip Op 02204, Secpmd Dept 5-16-25

Practice Point: If a Supreme Court justice issues an order which exceeds that court’s authorized powers, here an an order to release grand jury minutes to a plaintiff in a civil action, a petition for a writ of prohibition will be granted.

 

,

PLAINTIFF INSURER CAN SUE, AS A SUBROGEE, THE CLUB WHICH SERVED ALCOHOL TO ITS INSUREDS, WHO WERE VISIBLY INTOXICATED, PURSUANT TO THE DRAM SHOP ACT; THE INSUREDS WERE INJURED IN A SINGLE CAR ACCIDENT AND THE INSURER PAID OUT MORE THAN $500,000 (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Love, affirming Supreme Court, determined that plaintiff insurance company, Drive Insurance, could stand in the shoes of its insureds (as a subrogee) and sue the defendant club, Atlantis, pursuant to the Dram Shop  Act. Plaintiff alleged defendant served alcohol to the visibly intoxicated insureds who were then injured in a single-car accident. Plaintiff paid out over $500,000 to the insureds (named Aly, Perez and Abreu-Mateo):

… Drive Insurance alleged that Aly, Perez, and Abreu-Mateo were injured and the vehicle was damaged by Perez, who was visibly intoxicated at the time that Atlantis sold her alcohol. Accordingly, the Supreme Court properly determined that Drive Insurance was entitled to assert, as subrogee, a cause of action pursuant to the Dram Shop Act and that Drive Insurance stated a claim against Atlantis for violation of the Dram Shop Act. If the owner of the vehicle and the passengers have causes of action pursuant to the Dram Shop Act against Atlantis to recover damages arising out of the accident on the theory that Atlantis unlawfully served Perez when she was visibly intoxicated, causing the accident and their injuries, which causes of action do not fall into one of the exclusions discussed supra, then, since Drive Insurance alleges that it made payments as to the damaged vehicle and the injured passengers pursuant to the policy, Drive Insurance is entitled to stand in the shoes of its insured and seek indemnification from Atlantis based on Atlantis’s alleged violation of the Dram Shop Act. Drive N.J. Ins. Co. v RT Hospitality Group, LLC, 2025 NY Slip Op 02188, Second Dept 4-16-25

Practice Point: An insurance company which has paid the insureds’ medical bills and vehicle-repair costs after a single-car accident, can, as a subrogee, sue the bar which served alcohol to the visibly intoxicated insureds under the Dram Shop Act.

 

,

DEFENDANT IN THIS SLIP AND FALL CASE DID NOT PROVE WHEN THE AREA OF THE FALL WAS LAST INSPECTED OR CLEANED; THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION AND WAS NOT ENTITLED TO SUMMARY JUDGMENT; PROOF OF GENERAL CLEANING PRACTICES IS NOT ENOUGH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant in this slip and fall did not demonstrate a lack of constructive notice of the flower petals on the floor which caused plaintiff to slip and fall. Therefore defendant was not entitled to summary judgment. A lack of constructive notice can be demonstrated by proof the area was inspected or cleaned close in time to the fall. Proof of general cleaning practices is not sufficient to raise a question of fact on the issue:

A defendant moving for summary judgment in a slip-and-fall case must establish, prima facie, that it did not create the condition that allegedly caused the fall or have actual or constructive notice of that condition for a sufficient length of time to remedy it … . “To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and remedy it” … . In order to meet its prima facie burden “on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” … . “Reference to general cleaning practices is insufficient to establish a lack of constructive notice in the absence of evidence regarding specific cleaning or inspection of the area in question” … .

Here, the defendant failed to demonstrate, prima facie, that it lacked constructive notice of the alleged condition … . The defendant did not submit any evidence with respect to specific cleaning or inspection of the area in question “or any other affirmative proof to demonstrate how long the condition had existed” … . The deposition testimony and affidavit submitted by the defendant as to general cleaning procedures were insufficient to establish lack of constructive notice … . Lisker v Vue Catering, Inc., 2025 NY Slip Op 02196, Second Dept 4-16-25

Practice Point: This genre of reversals appeared monthly for many years. Now these decisions are few and far between. The key issue: to demonstrate a lack of constructive notice of the condition which caused plaintiff’s slip and fall a defendant must prove the area was inspected or cleaned close in time to the fall. Proof of general cleaning schedules is not enough.​

 

CRIMINAL POSSESSION OF A WEAPON SECOND DEGREE AND CRIMINAL POSSESSION OF A FIREARM ARE INCLUSORY CONCURRENT COUNTS; THE CRIMINAL POSSESSION OF A FIREARM CONVICTION WAS VACATED (SECOND DEPT).

The Second Department, vacating the criminal possession of a firearm conviction, determined criminal possession of a weapon second degree and criminal possession of a firearm are inclusory concurrent counts:

CPL 300.30(4) provides that “[c]oncurrent counts are ‘inclusory’ when the offense charged in one is greater than any of those charged in the others and when the latter are all lesser offenses included within the greater” … . CPL 300.40(3)(b) provides, in relevant part, that with respect to inclusory concurrent counts, “[a] verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted” … . Here, the defendant was convicted of criminal possession of a weapon in the second degree and criminal possession of a firearm (Penal Law §§ 265.03[1][b]; 265.01-b[1]). Because the charge of criminal possession of a weapon in the second degree and the charge of criminal possession of a firearm are inclusory concurrent counts, the conviction of criminal possession of a firearm, as well as the sentence imposed thereon, must be vacated, and that count of the indictment must be dismissed … . People v Walker, 2025 NY Slip Op 02225, Second Dept 4-16-25

Practice Point: Criminal possession of a weapon second degree and criminal possession of a firearm are inclusory concurrent counts requiring vacation of the criminal possession of a firearm conviction.

 

,

THE DEFENDANTS DID NOT RAISE A DEFECT IN SERVICE AS AN AFFIRMATIVE DEFENSE; THE JUDGE SHOULD NOT HAVE RAISED THE ISSUE SUA SPONTE AND DISMISSED THE PROCEEDING ON THAT GROUND (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, raised the propriety of service issue and dismissed the proceeding on that ground:

The Supreme Court should not have, sua sponte, dismissed the proceeding/action on the ground of a defect in service. Lack of personal jurisdiction is an affirmative defense that can be waived by, among other things, “appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss” … . “When a defendant participates in a lawsuit on the merits, he or she indicates an intention to submit to the court’s jurisdiction over the action, and by appearing informally in this manner, the defendant confers in personam jurisdiction on the court” … .

Since the respondents did not object to the Supreme Court’s jurisdiction over them in an answer or in their cross-motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the petition/complaint, the court should not have, sua sponte, raised the issue of the propriety of service … . Further, the respondents waived any objection to the propriety of service by appearing in the proceeding/action and cross-moving to dismiss the petition/complaint without raising the defense of lack of personal jurisdiction … . Matter of Weiss v County of Suffolk, 2025 NY Slip Op 02210, Second Dept 4-16-25

Practice Point: Defective service is an affirmative defense which, if not raised by a party, is waived. A judge cannot raise and decide the issue sua sponte.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy