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PLAINTIFF SHOULD NOT HAVE BEEN GRANTED MORE TIME TO SERVE DEFENDANT UNDER EITHER THE “GOOD CAUSE” OR “INTEREST OF JUSTICE” CRITERIA (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff should not have been granted more time to serve the summons and complaint under either the “good cause” or “interest of justice” criteria:

Pursuant to CPLR 306-b, a plaintiff is required to serve the summons and complaint within 120 days after commencement of the action. If service of the summons and complaint is not made upon the defendant within that time, “the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service” … . “To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service” … . Such a showing is not required to obtain an extension of time under the interest of justice standard, which is a broader standard intended to “‘accommodate late service that might be due to mistake, confusion or oversight, so long as there is no prejudice to the defendant'” … . “The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties” … . In reaching its determination, “the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant” … .

Here, the plaintiff failed to establish good cause to extend the time to serve [defendant], as no evidence was offered that she attempted to serve him with reasonable diligence. Further, … the plaintiff failed to establish that an extension of time to serve … was warranted in the interest of justice. The plaintiff failed to offer any explanation for the eight-month delay in filing the affidavit of service, the delay in moving, among other things, for leave to enter a default judgment … , and the four-month delay in moving to extend the time to serve … after the defendants had cross-moved … to dismiss the complaint … for lack of personal jurisdiction. There is no evidence in the record that [defendant] had notice of the action during the 120-day period after the commencement of the action … . Druss v Scher, 2025 NY Slip Op 02318, Second Dept 4-23-25

Practice Point: Even though the statute of limitations had passed. plaintiff’s failure to exercise reasonable diligence precluded an extension of time to serve the defendant, under either the “good cause” or “interest of justice” criteria.

 

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PLAINTIFF FELL AT HER NURSING HOME AND EMERGENCY PERSONNEL FOUND HER UNATTENDED ON THE FLOOR WITH NO IDENTIFICATION BAND; DEFENDANT’S EXPERT, A CARDIAC CRITICAL CARE PHYSICIAN, DID NOT DEMONSTRATE FAMILIARITY WITH NURSING HOME CARE AND DID NOT ADDRESS ALL THE ALLEGATIONS IN THE PLEADINGS; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO DEFENDANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this medical malpractice/Public Health Law 2801-d action should not have been granted. The defendant relied on the expert opinion of a physician who did not demonstrate familiarity with nursing home care and did not address the allegations that plaintiff’s decedent was left unattended on the floor after she fell and defendant’s personnel did not cooperate with the EMS personnel who attended the decedent:

“On a motion for summary judgment dismissing the complaint in a medical malpractice action, a defendant must make a prima facie showing either that there was no departure from good and accepted medical practice, or that the plaintiff was not injured by any such departure” … . “In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff’s complaint and bill of particulars” … .

“Liability under the Public Health Law contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule, subject to the defense that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient. …

… [W]here a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” … . …

… [T]he defendant relied on an expert affirmation of a physician who engaged in, inter alia, the practice of cardiac critical care. This affirmation did not indicate that the physician had training in geriatric or nursing home care or what, if anything, the physician did to become familiar with the standard of care for these specialties … . … [T]he defendant’s expert failed to specifically address the allegations that the defendant’s staff members left the decedent on the floor unattended while awaiting the arrival of EMS and failed to cooperate with EMS personnel upon their arrival … . … [T]he EMS report reflected that the defendant failed to provide EMS personnel with more than mere transfer paperwork. … [T]he decedent initially could not be identified because she did not have an identification band, and EMS personnel did not know whether the patient was on blood thinners or subject to any “advance directives.” Deitch v Sands Point Ctr. for Health & Rehabilitation, 2025 NY Slip Op 02317, Second Dept 4-23-25

Practice Point: Consult this decision for a clear explanation of the very different nature of a medical malpractice action as compared with a Public Health Law 2801-d action.

Practice Point: Here plaintiff’s decedent fell at her nursing home. Defendant’s expert, a cardiac physician, did not demonstrate any familiarity with nursing home care, rendering his affidavit insufficient.

Practice Point: In a medical malpractice/Public Health Law 2801-d action, the expert’s failure to address all the allegations in the pleadings renders the expert evidence insufficient.

 

THE FAILURE TO PROVIDE PLAINTIFF WITH EYE-PROTECTION EQUIPMENT WARRANTED SUMMARY JUDGMENT ON THE LABOR LAW 241(6) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on the Labor Law 241(6) cause of action should have been granted. Plaintiff suffered an injury to his eye when a discharge hose disconnected from a sandblaster. Plaintiff alleged the violation of two Industrial Code provisions requiring that he be provided with protective equipment:

The plaintiff alleged … violations of (1) 12 NYCRR 23-1.5(c)(3), which provides that “[a]ll safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged,” and (2) 12 NYCRR 23-1.8(a), which provides that “[a]pproved eye protection equipment suitable for the hazard involved shall be provided for and shall be used by all persons . . . while engaged in any . . . operation which may endanger the eyes.” * * *

“Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers” … .. “‘To establish liability under Labor Law § 241(6), a plaintiff must demonstrate that the injuries allegedly sustained were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case'” … ,. “An owner or contractor may be held liable under Labor Law § 241(6) even if it did not have control of the site or notice of the allegedly dangerous condition” … .

Here, the plaintiff demonstrated, prima facie, that the defendants violated Labor Law § 241(6) by failing to provide adequate eye protection equipment and to ensure that the plaintiff used safety equipment while working at the job site in accordance with 12 NYCRR 23-1.5(c)(3) and 23-1.8(a), and that those violations were a proximate cause of the accident … . Castellon v 38 E. 85th St., Inc., 2025 NY Slip Op 02311, Second Dept 4-23-25

Practice Point: Owners and contractors have a nondelegable duty to provide their workers with adequate safety equipment and can be held liable even if they did not have control of the work site or notice of the dangerous condition.

 

IN THIS ALL-TERRAIN-VEHICLE (ATV) ACCIDENT CASE, THERE IS A QUESTION OF FACT WHETHER THE DRIVER UNREASONABLY INCREASED THE RISK TO PLAINTIFF-PASSENGER THEREBY PRECLUDING THE APPLICATION OF THE ASSUMPTION-OF-THE-RISK DOCTRINE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether assumption of the risk doctrine precluded plaintiff from recovery in this all-terrain vehicle (ATV) accident case. There was a question whether the driver unreasonably increased the risk to plaintiff-passenger:

“Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity ‘consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation'” … . Participants, however, are not deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks … . Here, the evidence submitted by the defendant in support of the motion raised triable issues of fact as to whether the manner in which the decedent was operating the ATV unreasonably enhanced the risk of injury and whether the doctrine of primary assumption of risk applies to this case … . Bulfamante v Bulfamante, 2025 NY Slip Op 02310, Second Dept 4-23-25

Practice Point: Here there was no question that the assumption-of-the-risk doctrine could apply to plaintiff-passenger injured in an all-terrain-vehicle (ATV) accident.

Practice Point: Although the assumption-of-the-risk doctrine could apply to the plaintiff-passenger in this ATV accident case, there was a question of fact whether the doctrine was precluded because the driver unreasonably increased the risk.

 

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THE DISMISSAL OF A FORELCOSURE ACTION ON THE GROUND THE BANK FAILED TO COMPLY WITH THE NOTICE OF DEFAULT PROVISIONS IN RPAPL 1304 IS NOT AN EXPRESS JUDICIAL DETERMINATION THAT THE ACTION DID NOT VALIDLY ACCELERATE THE DEBT; THEREFORE, HERE, THE 2013 FORECLOSURE ACTION IS TIME-BARRED PURSUANT TO THE FORECLOSURE ABUSE PREVENTION ACT (FAPA) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure action was time-barred. The bank’s argument that the the foreclosure complaint filed in 2013 did not accelerate the debt was rejected. The 2013 action was dismissed in 2018 because the bank did not comply with the notice of default requirement in Real Property Actions and Proceedings Law (RPAPL) 1304. That dismissal did not constitute an express judicial finding that the debt had not been validly accelerated when the 2013 complaint was filed:

Deutsche Bank’s argument that the complaint in the 2013 action did not constitute a valid acceleration of the debt is precluded by the Foreclosure Abuse Prevention Act (hereinafter FAPA) … . FAPA amended CPLR 213(4) to provide that in an action pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage, “a defendant shall be estopped from asserting that the period allowed by the applicable statute of limitation for the commencement of an action upon the instrument has not expired because the instrument was not validly accelerated prior to, or by way of commencement of a prior action, unless the prior action was dismissed based on an expressed judicial determination, made upon a timely interposed defense, that the instrument was not validly accelerated” … . Here, the Supreme Court directed dismissal of the complaint in the 2013 action upon a determination that Deutsche Bank failed to establish … its strict compliance with RPAPL 1304. The mailing of a RPAPL 1304 notice, while a condition precedent to commencing a foreclosure action, is not a precondition for acceleration of the debt … , and thus, the 2013 action was not dismissed upon an expressed judicial determination that the debt was not validly accelerated. Brennan v Deutsche Bank Trust Co. Ams., 2025 NY Slip Op 02308, Second Dept 4-23-25

Practice Point: A foreclosure action is time-barred six years after the debt was accelerated by the filing of the complaint, unless there is an express judicial determination that the filing of the complaint did not accelerate the debt. A dismissal of the foreclosure action based upon the bank’s failure to comply with the RPAPL 1304 notice of default requirements is not an express judicial determination that the foreclosure complaint did not validly accelerate the debt. Therefore, in this case, the 2013 foreclosure action, which was dismissed in 2018 for failure to comply with RPAPL 1304, is time-barred.

 

PLAINTIFF TRIPPED AND FELL AS HE WALKED THROUGH A “ROOM,” NOT A “PASSAGEWAY;” THEREFORE THE LABOR LAW 241(6) CAUSE OF ACTION BASED ON THE INDUSTRIAL CODE PROVISION PROHIBITING OBSTRUCTIONS IN A “PASSAGEWAY” SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the Labor Law 241(6) cause of action based on an Industrial Code regulation requiring passageways be kept free of obstructions did not apply to the room where plaintiff tripped and fell:

… [P]laintiff testified that while he was walking through a room, he slipped upon and became tangled in a portion of a plastic tarp that was covering a pool table that extended past the table onto the floor, causing him to fall. * * *

… [D]efendants established, prima facie, that 12 NYCRR 23-1.7(e)(1), which requires owners and general contractors, among other things, to keep all passageways free of obstructions that could cause tripping, is inapplicable, because the site where the plaintiff allegedly fell was not a passageway … . Bittrolff v City of New York, 2025 NY Slip Op 02307, Second Dept 4-23-25

Practice Point: For purposes of Labor Law 241(6) which bases liability on a violation of the Industrial Code, an Industrial Code provision prohibiting obstructions and tripping hazards in a “passageway” does not apply to obstructions and tripping hazards in a “room.”​

 

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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.

 

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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.

 

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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.​

 

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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.

 

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