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THE DEFENDANTS’ PRE-ANSWER MOTION TO DISMISS EXTENDED THE TIME FOR PLAINTIFFS TO AMEND THE COMPLAINT AS A MATTER OF RIGHT UNTIL TEN DAYS AFTER SERVICE OF THE NOTICE OF ENTRY OF THE ORDER DETERMINING THE MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that a pre-answer motion to dismiss extends the time to amend the complaint as a matter of right:

The plaintiffs correctly contend that the Supreme Court erred in determining that the plaintiffs required leave of court to amend the complaint. “Pursuant to CPLR 3211(f), service by the defendant[s] of the pre-answer motion pursuant to CPLR 3211(a) to dismiss the complaint extended the [defendants’] time to answer the complaint until 10 days after service of notice of entry of the order determining the motion, and therefore extended the time in which the [plaintiffs] could amend the complaint as of right” … . Karp v Madison Realty Capital, L.P., 2026 NY Slip Op 02637, Second Dept 4-29-26

 

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THE FACT THAT THE EMPLOYER MAY BE VICARIOUSLY LIABLE FOR AN EMPLOYEE’S NEGLIGENCE DOES NOT WARRANT DISMISSAL OF THE ACTION AGAINST THE EMPLOYEE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined an employee defendant should not have been granted summary judgment on the ground her employer (New Beginnings) was vicariously liable for the employee’s negligence. Allegedly, plaintiff was injured receiving a “facial treatment” from the employee (Wallace):

… [T]he doctrine of respondeat superior does not entitle Wallace to summary judgment dismissing the complaint insofar as asserted against her. “While an employer may be vicariously liable for the torts of its employee while acting within the scope of his or her employment, a claim against the employer does not necessarily preclude a separate claim against the employee” … . “It is ordinarily immaterial to an agent’s liability that the agent’s tortious conduct may, additionally, subject the principal to liability” (Restatement [Third] of Agency § 7.01[b]). “It is consistent with encouraging responsible conduct by individuals to impose individual liability on an agent for the agent’s torts although the agent’s conduct may also subject the principal to liability” … . Castellazzo v David’s New Beginnings, LLC, 2026 NY Slip Op 02625, Second Dept 4-29-26

Practice Point: The fact that an employer may be vicariously liable for an employee’s negligence does not preclude a suit against both.

 

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THE WILL BEQUEATHED THE REAL PROPERTY TO PLAINTIFF ALONE; THE DEFENDANT ADMINSTRATOR DREW UP A DEED WHICH TRANSFERRED THE PROPERTY TO PLAINTIFF AND DEFENDANT AS JOINT TENANTS; THE ISSUE WAS WHETHER THE DEED IS VOID AB INITIO OR VOIDABLE; THE SECOND DEPARTMENT DETERMINED THE DEED WAS VOIDABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Landicino, determined that the deed drawn up by defendant, the administrator of the decedent’s estate, which was inconsistent with a specific bequest in the will, was voidable, not void ab initio. The will bequeathed the real property to plaintiff alone. The defendant administrator drew up a deed which transferred the property to plaintiff and defendant as joint tenants. Supreme Court determined deed was void ab initio. The Second Department reversed and determined the deed was voidable. The opinion is complex and cannot be fairly summarized here:

The primary question presented in this appeal is whether a transfer of property by an administrator c.t.a. in a manner that is inconsistent with a specific bequest in a will is voidable or void ab initio. In our view, an administrator c.t.a. who receives letters of administration c.t.a. from the Surrogate’s Court is cloaked with apparent authority to make a transfer of property from the estate, even if that transfer is contrary to the terms of the decedent’s will. As such, the transfer is voidable, not void ab initio.

The undisputed facts of this case are as follows: On April 13, 1998, Floribel Nelson (hereinafter the decedent) died. Prior to her death, the decedent owned real property located in Brooklyn (hereinafter the subject property). In her will, the decedent bequeathed her entire estate, including the subject property, to the plaintiff, who was the decedent’s grandniece, and two other family members who had apparently predeceased the decedent. Because the will further provided that, “if any [of the named heirs] do not survive [the decedent], then his or her share shall be divided equally among the survivors, and if there is only one survivor, said survivor shall take the whole estate,” the plaintiff was the sole surviving beneficiary of the decedent’s estate at the time of the decedent’s death. Rhiney v Rhiney, 2026 NY Slip Op 02428, Second Dept 4-22-26

Practice Point: Here a deed drawn up by the administrator of the estate conveyed decedent’s real property to the administrator and the plaintiff as joint tenants. However, the will bequeathed the property to plaintiff alone. The court was asked to determine if the deed was void ab initio or voidable. The deed was deemed voidable.

 

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HERE THE TRIAL TESTIMONY ABOUT THE IDENTIFICATION OF THE DEFENDANT’S VOICE WAS MUCH LESS DEFINITIVE AND UNEQUIVOCAL THAN THE TESTIMONY AT THE SUPPRESSION HEARING, RAISING A QUESTION WHETHER THERE WAS PROBABLE CAUSE FOR DEFENDANT’S ARREST; DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO REOPEN THE SUPPRESSION HEARING; MATTER REMITTED FOR A REOPENED HEARING (SECOND DEPT).

The Second Department, remitting the matter for a reopened suppression hearing, determined defense counsel was ineffective for failing to move to reopen the hearing based upon discrepancies between the testimony at the suppression hearing and at trial. The trial testimony was less definitive and unequivocal, raising a question about whether there was probable cause for defendant’s arrest:

The defendant contends that trial counsel was ineffective for failing to move to reopen the pretrial suppression hearing on the basis that an individual had testified, during the trial, that he had told the police that the voice of the alleged kidnapper, who the individual had heard speaking on the telephone, was “possibly” that of the defendant, and the individual also admitted to testifying before the grand jury that he identified the voice after being shown a photograph of the defendant. Whereas, the police testimony at the pretrial suppression hearing regarding the same individual’s identification of the defendant’s voice, which formed the basis for the defendant’s arrest, was more definitive and unequivocal, and did not involve the viewing of a photograph. We agree.

Courts have the discretion to reopen a suppression hearing based upon new facts, which could not have been discovered with reasonable diligence before the determination of the suppression motion, pertinent to the suppression issue … . These new facts need not establish a constitutional violation on their face, but must be facts that would either materially affect, or have affected, the earlier determination … . Here, where the reliability of a witness’s identification of the defendant’s voice as that of one of the perpetrators of the crime, which primarily formed the basis for the defendant’s arrest, was called into question in light of that witness’s trial testimony, an issue of fact was raised regarding whether there was probable cause for the defendant’s arrest … . Although motions to reopen suppression hearings are generally denied where the new facts proffered go only to the circumstances surrounding the defendant’s arrest, here, the defendant could not be presumed to know the basis of the communications or conduct between police, leading to his arrest … . The failure of trial counsel to move to reopen the suppression hearing on this ground was therefore both objectively unreasonable as well as prejudicial to the defendant … . Contrary to the People’s contention, this is not a case in which trial counsel’s error can be explained as part of any strategic design … . People v Clark, 2026 NY Slip Op 02414, Second Dept 4-22-26

Practice Point: Here trial testimony about the identification of defendant’s voice was not as definitive or unequivocal as the testimony at the suppression hearing raising a question whether there was probable cause for defendant’s arrest. Defense counsel was ineffective for failing to move to reopen the hearing. The matter was remitted for a reopened hearing.​

 

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IT WAS ERROR FOR THE JUDGE TO DELEGATE TO THE ADMINISTRATION FOR CHILDREN’S SERVICES (ASC) THE AUTHORITY TO DETERMINE MOTHER’S THERAPEUTIC SUPERVISED PARENTAL ACCESS; ELEVEN-YEAR-OLD AUTHORITY TO THE CONTRARY SHOULD NOT BE FOLLOWED (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined it was error for the judge to delegate to the Administration for Children’s Services (ACS) the authority to determine mother’s therapeutic supervised parental access. The Second Department made it clear that its decision to the contrary in Matter of Victoria P. (Victor P.), 121 AD 2d 1006, should no longer be followed:

Eleven years ago, in a proceeding pursuant to Family Court Act article 10, this Court, in Matter of Victoria P. (Victor P.) (121 AD3d 1006, 1007), held that a determination of the Family Court to limit the father to supervised parental access with the subject children at the discretion of the petitioning agency had a sound and substantial basis in the record. This holding seemingly indicated that a court may delegate its authority to set parental access to an agency in a proceeding pursuant to Family Court Act article 10. However, since that appeal was decided, this Court has made clear, in numerous other appeals, that a court may not delegate its authority in such a way as to permit a determination of parental access to be made by either a therapist, a parent, or by the subject children … . Considering the foregoing, and that “[t]he determination of visitation is entrusted to the court based upon the best interests of the children” … , to the extent that Matter of Victoria P. (Victor P.), stands for the proposition that a court in a proceeding pursuant to Family Court Act article 10 may delegate its authority to determine issues of parental access to an agency, that case should no longer be followed. Thus, here, the Family Court erred by delegating to ACS the authority to determine the mother’s therapeutic supervised parental access with the child … . Matter of Jayceon H. (Aniya M.), 2026 NY Slip Op 02405, Second Dept 4-22-26

Practice Point: A court cannot delegate its authority to determine issues of parental access to an agency.

 

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PLAINTIFF SUED A CHURCH ALLEGING THE CHURCH HELD PROPERTY IN TRUST FOR PLAINTIFF AND THE CHURCH WRONGFULLY OUSTED PLAINTIFF FROM THE PROPERTY; RESOLUTION OF THE SUIT WOULD INVOLVE NEUTRAL PRINCIPLES OF LAW, NOT RELIGIOUS PRINCIPLES; THEREFORE, THE LAWSUIT WAS NOT PRECLUDED BY THE FIRST AMENDMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the lawsuit concerning ownership of church property was not precluded by the First Amendment because the suit could be decided by applying neutral principles of civil law, not religious principles:

The complaint alleged, among other things, that Synod held the church property in trust for the plaintiff, as the beneficial owner, and that Synod wrongfully ousted the plaintiff from the church property in March 2020 following a series of disputes between the plaintiff and Synod. Synod moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it, arguing, inter alia, that resolution of the causes of action requires review of ecclesiastical matters over which the Supreme Court lacked subject matter jurisdiction. …

“‘The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs'” … . “However, a court may resolve church property disputes ‘when the case can be decided solely upon the application of neutral principles of . . . law, without reference to any religious principle'” … . “‘The neutral principles of law approach requires courts to apply objective, well-established principles of secular law to the issues,’ and ‘[i]n doing so, courts may rely upon internal documents, such as a congregation’s bylaws, but only if those documents do not require interpretation of ecclesiastical doctrine'” … .

Here, contrary to Synod’s contention, it failed to demonstrate that the causes of action cannot be resolved solely upon the application of neutral principles of law, without reference to any religious principle … . Lutheran Church of the Risen Christ, Mo. Synod v Atlantic Dist. of the Lutheran Church Mo. Synod, 2026 NY Slip Op 02260, Second Dept 4-15-26

Practice Point: If a lawsuit against a church involves ownership of property and can be decided based on neutral principles of law (not religious principles) the suit is not precluded by the First Amendment and can be brought in state court.

 

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THE RENTAL-CAR DEFENDANT IN THIS REAR-END COLLISION CASE DID NOT DEMONSTRATE THE RENTAL CAR WAS NOT NEGLIGENTLY MAINTAINED; THEREFORE, PURSUANT TO THE “GRAVES AMENDMENT,” THE RENTAL CAR DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT DISMISSING THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court in this traffic accident case, determined the evidence submitted by the rental car company (A-1 Cars) did not eliminate a question of fact whether the car was negligently maintained. Plaintiff driver was rear-ended by the rental car:

“Under the Graves Amendment (49 USC § 30106), the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if the owner (i) is engaged in the trade or business of renting or leasing motor vehicles, and (ii) engaged in no negligence or criminal wrongdoing” … . Thus, under the circumstances of this case, in order to establish entitlement to judgment as a matter of law dismissing the complaint under the Graves Amendment, A-1 Cars was required to show, prima facie, (1) that it owned the subject vehicle, (2) that it engaged in the trade or business of leasing or renting motor vehicles, (3) that the accident occurred during the period of the lease or rental, and (4) that there is no triable issue of fact as to any allegation of negligent maintenance contributing to the accident … .

Here, the only evidence submitted by A-1 Cars aside from an uncertified police accident report, which was inadmissible … , was an affidavit from its “Claims Administrator,” Mariley Mendez. The conclusory, unsupported affidavit was insufficient to demonstrate, prima facie, A-1 Cars’s entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it on the basis of the Graves Amendment. Among other things, Mendez’s averments that she “check[ed]” the vehicle prior to the rental and that there were no records of mechanical problems with the vehicle were insufficient to establish, prima facie, that the vehicle was properly maintained and in good repair at the time of the subject accident … . Joseph v Marmolejos, 2026 NY Slip Op 02256, Second Dept 4-15-26

Practice Point: Consult this decision for insight into what a rental-car company must prove with respect to maintenance of the rental car to take advantage of immunity from liability pursuant to the Graves Amendment.​

 

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IN A “SMOOTH, SLIPPERY, SHINY FLOOR” SLIP AND FALL CASE, THE FACT THAT THE FLOOR WAS WAXED DOES NOT DEMONSTRATE NEGLIGENCE; THERE MUST BE EVIDENCE THE WAX WAS NEGLIGENTLY APPLIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants were entitled to summary judgment in this “smooth, slippery, shiny floor” slip and fall case. The fact that a floor has been polished does not establish negligence. Plaintiff must show the wax or polish was negligently applied:

“A defendant may not be held liable for the application of wax, polish, or paint to a floor . . . unless the defendant had actual, constructive, or imputed knowledge that the product could render the floor dangerously slippery” … . “A prima facie case of the negligent application of wax may be established by evidence that a dangerous residue of wax was present on the floor” … . “In the absence of evidence of a negligent application of floor wax or polish, the mere fact that a smooth floor may be shiny or slippery does not support a cause of action to recover damages for negligence, nor does it give rise to an inference of negligence” … .

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that there was no negligent application of wax to the floor … . Brener v Queens Blvd. Extended Care Facility Corp., 2026 NY Slip Op 02240, Second Dept 9-15-26 

Practice Point: A smooth, slippery, shiny floor is not actionable in a slip and fall case unless there is evidence wax was negligently applied.

 

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PLAINTIFF FATHER WAS AWARDED SOLE CUSTODY OF THE CHILD IN AN ORDER THAT DIRECTED MOTHER TO “STAY AWAY” FROM FATHER AND CHILD; FATHER ASKED THE POLICE FOR HELP IN SERVING THE ORDER AND PICKING UP THE CHLID; MOTHER WOULD NOT LET THE POLICE INTO HER HOME; DISTRICT ATTORNEYS ADVISED THAT THE POLICE COULD NOT ENTER MOTHER’S HOME; THE NEXT DAY MOTHER MURDERED THE CHILD; THE COMPLAINT AGAINST THE MUNICIPAL DEFENDANTS SHOULD NOT HAVE BEEN DIISMISSED; PLAINTIFF DEMONSTRATED A SPECIAL RELATIONSHIP WITH THE MUNICIPALITY AND THE MUNICIPALITY DID NOT DEMONSTRATE IT WAS ENTITLED TO GOVERNMENTAL FUNCTION IMMUNITY (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Taylor, determined the negligence and wrongful death action against the municipal defendants should not have been dismissed, and plaintiff’s motion for leave to amend the notice of claim or leave to file a late notice of claim should have been granted. Plaintiff father was granted sole custody of his child in an order which required mother to “stay away” from father and the child. Plaintiff asked the police for help in serving the order on mother and picking up the child. The police attempted to serve the order, but mother slammed the door and would not let them in. District attorneys were then contacted for advice but determined the police could not enter mother’s home. The next day the police were called to mother’s home where the child was found deceased. Mother was convicted of murdering the child. The Second Department held that there was a special relationship between plaintiff and the municipality and the municipality was not entitled to governmental function immunity: The opinion is too complex to fairly summarize here:

To establish the existence of a special relationship, a plaintiff is required to prove four elements, also referred to as “the Cuffy factors” or “the Cuffy test,” namely:

“(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” (Cuffy v City of New York, 69 NY2d 255, 260 …). * * *

Generally, the “decision to arrest an individual involves the exercise of discretion . . . and thus is cloaked with governmental immunity” … . However, here, in the face of what was, in effect, a temporary order of protection, the defendant police officers became, at a minimum, “obligated to respond and investigate” … . Therefore, the Village defendants have not conclusively established that their actions were purely discretionary … . Boyd v Village of Mamaroneck, 2026 NY Slip Op 02239, Second Dept 4-15-26

Practice Point: Consult this opinion for insight into what constitutes a “special relationship” between a plaintiff and a municipality and when a municipality is protected from liability in negligence by governmental function immunity.

 

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DEFENDANT’S CONTRACT WITH THE TOWN TO MAINTAIN STREET LIGHTS DID NOT CREATE A DUTY OWED BY THE CONTRACTOR TO THE PLAINTIFF, A PEDESTRIAN STRUCK BY A CAR WHO ALLEGED A STREET LIGHT WAS NOT WORKING; THE CONTRACTOR DID NOT “LAUNCH AN INSTRUMENT OF HARM;” IT MERELY FAILED “TO ACT AS AN INSTRUMENT OF GOOD” WHICH DOES NOT CREATE A DUTY TO A NONPARTY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate the breach of a duty owed to him by defendant contractor. Defendant had entered a contract with defendant municipality to maintain street lights. Plaintiff, a pedestrian struck by a car, alleged the accident was in part caused by a street light which was not working. The complaint, however, did not allege defendant contractor had “launched an instrument of harm,” as opposed to merely a failure to act as an instrument of good:

… [T]he facts alleged do not establish that the defendant launched an instrument of harm, as the defendant is not alleged to have “created or increased the risk [to the plaintiff] beyond the risk which existed even before [the defendant] entered into [its] contractual undertaking” … . The defendant’s purported negligence in failing to restore illumination to a darkened intersection amounts to, at most, a failure to act as an “instrument for good, which is insufficient to impose a duty of care” upon the defendant in the absence of contractual privity with the plaintiff … . Moreover, the contract submitted by the defendant in support of its motion conclusively demonstrated that the defendant’s contractual undertaking was “not the type of ‘comprehensive and exclusive’ property maintenance obligation” that would “entirely absorb” the Town’s duty “to maintain the premises safely” … . Weiss v Fran Corp., 2026 NY Slip Op 02147, Second Dept 4-8-26

Practice Point: Consult this decision for insight into what “launching an instrument of harm,” as opposed to “failing to act as an instrument of good,” means in the context of a duty owed by a party to a contract to an injured nonparty.

 

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