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THE ALLEGATION A PLASTIC SURGEON POSTED BEFORE AND AFTER PHOTOGRAPHS OF PLAINTIFF WITHOUT PERMISSION STATED A CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Egan, determined plaintiff stated causes of action for both a violation of privacy pursuant to the Civil Rights Law, and breach of a fiduciary duty. Plaintiff alleged defendant plastic surgeon posted before and after photographs of the plaintiff without her consent. The breach of a fiduciary duty claim did not duplicate the violation of privacy claim. Physicians have a fiduciary duty not to disclose a patient’s medical records without authorization:

Plaintiff instead alleges that defendants all had a physician-patient relationship with her and that they breached a distinct duty arising out of that relationship by publicly disclosing photographs of her that had been taken in the course of treatment without her agreement … . “It is well established that a patient may maintain a cause of action for breach of fiduciary duty against his or her physician resulting from the physician’s unauthorized disclosure of the patient’s medical records,” broadly defined as essentially any information acquired by the physician that relates to the patient’s diagnosis or treatment, as such disclosure violates “the implied covenant of trust and confidence that is inherent in the physician patient relationship” … . A claim for breach of fiduciary duty, based as it is upon the well-established duty a physician owes to his or her patient as opposed to a purported right of privacy, may be viable where claims based upon a generalized invasion of privacy are not … . Perry v Rockmore, 2025 NY Slip Op 01141, Third Dept 2-27-25

Practice Point: Here the allegation defendant plastic surgeon posted before and after photographs of plaintiff stated distinct causes of action for a violation of privacy pursuant to the Civil Rights Law, and breach of fiduciary duty (unauthorized disclosure of medical records).

 

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DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF A PROTRUDING NAIL IN A BASEMENT STAIRWAY WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL; DEFENDANT DID NOT PRESENT EVIDENCE DEMONSTRATING WHEN THE STAIRWAY WAS LAST CLEANED OR INSPECTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property owner did not demonstrate a lack of constructive notice of a protruding nail in a basement stairway which allegedly caused plaintiff to slip and fall. The defendant did not present any evidence demonstrating when the stairway was last inspected or cleaned:

… [T]he defendants failed to establish, prima facie, that 234-236 Elmendorf Street, LLC [the property owner], lacked constructive notice of the protruding nail condition alleged by the plaintiff … . Although the defendants submitted a transcript of the plaintiff’s deposition testimony wherein she averred that she did not notice the protruding nail when she last used the staircase approximately one week prior to her accident, the defendants did not establish that the condition did not exist for a sufficient length of time prior to the alleged accident in order for it to be remedied … . Moreover, the defendants failed to submit sufficient evidence as to when 234-236 Elmendorf Street, LLC, had last cleaned or inspected the staircase at issue … . Jones v 234-236 Elmendorf St., LLC, 2025 NY Slip Op 01083, Second Dept 2-27-25

Practice Point: Here the plaintiff’s deposition testimony that she did not notice the protruding nail the week before her fall was not sufficient to demonstrate defendant property owner did not have constructive knowledge of the protruding nail. No evidence of when the stairway was last cleaned or inspected was presented.

 

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THE FAILURE TO INCLUDE THE PHONE NUMBER FOR THE NYS DEPARTMENT OF FINANCIAL SERVICES IN THE RPAPL 1304 NOTICE OF FORECLOSURE RENDERED THE NOTICE FACIALLY DEFECTIVE; DEFENDANT ENTITLED TO SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s cross-motion for summary judgment in this foreclosure action should have been granted. The bank did not demonstrate strict compliance with the notice-of-foreclosure requirements of RPAPL 1304. The notice did not include the phone number for the NYS Department of Financial Services’ toll-free helpline:

“Where an RPAPL 1304 notice fails to reflect information mandated by the statute, . . . the statute will not have been strictly complied with and the notice will not be valid” … . Here, at the time the RPAPL 1304 notices were purportedly sent to the defendant, the version of RPAPL 1304 in effect required the notice to include the following sentence: “If you need further information, please call the New York State Department of Financial Services’ toll-free helpline at (show number) or visit the Department’s website at (show web address)” … .

Both RPAPL 1304 notices purportedly sent to the defendant included the sentence: “If you need further information, please call the toll-free helpline at or visit the Department’s website at .” Since the notices failed to include the telephone number for the Department of Financial Services’ toll-free helpline—a piece of information specifically required by the version of RPAPL 1304 in effect at the time the notices were sent—the notices were facially defective, and the defendant’s motion for summary judgment dismissing the complaint insofar as asserted against her should have been granted … . Federal Natl. Mtge. Assn. v Williams-Jones, 2025 NY Slip Op 01081, Second Dept 2-26-25

Practice Point: Strict compliance with the mandated contents of a RPAPL 1304 notice of foreclosure is required. Here the failure to include the phone number for the NYS Department of Financial Services rendered the notice facially defective and warranted a grant of summary judgment to the defendant.

 

THE PROCESS SERVER DID NOT MAKE SUFFICIENT EFFORTS TO PERSONALLY DELIVER THE SUMMONS AND COMPLAINT BEFORE RESORTING TO NAIL AND MAIL SERVICE; COMPLAINT DISMISSED FOR LACK OF PERSONAL JURISDICTION OVER DEFENDANT (SECOND DEPT).

The Second Department determined the complaint should have been dismissed for lack of personal jurisdiction. The process server did not make sufficient efforts to personally deliver the summons and complaint before resorting to nail and mail service:

… [T]he plaintiff failed to demonstrate that the process server acted with due diligence before relying on affix and mail service pursuant to CPLR 308(4) … . The process server resorted to service pursuant to CPLR 308(4) after twice attempting personal service at the defendant’s residence and once attempting service where the process server stated the defendant’s residence could not be accessed due to an “impassable road.” Also, there was no evidence that the process server made any genuine inquiries about the defendant’s whereabouts and place of business … . Additionally, the process server’s attempts at personal delivery occurred on weekdays during hours when it reasonably could have been expected that the defendant was either working or in transit from work … . Sams Distribs., LLC v Friedman, 2025 NY Slip Op 01124, Second Dept 2-26-25

Practice Point: Consult this decision for some insight into when a court will find a process server’s efforts to personally deliver the summons and complaint insufficient, thereby rendering the nail and mail service invalid.

 

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IN AN EFFORT TO CONVINCE THE COURT TO GRANT THEIR REQUEST FOR A COMPETENCY HEARING BASED UPON DEFENDANT’S REJECTION OF A FAVORABLE PLEA OFFER, THE DEFENSE ATTORNEYS REVEALED CONFIDENTIAL COMMUNICATIONS WITH DEFENDANT ABOUT THE STRENGTH OF THE EVIDENCE; ALTHOUGH THE DEFENSE ATTORNEYS WERE ATTEMPTING TO HELP THE DEFENDANT, THE DEFENSE ATTORNEYS BECAME WITNESSES AGAINST THE DEFENDANT, DEPRIVING HIM OF HIS RIGHT TO COUNSEL (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defendant received ineffective assistance of counsel. Defendant was offered a plea deal which avoided incarceration for robbery and assault. When defendant rejected the offer, the defense attorneys requested a competency examination. In arguing for the competency examination, the defense attorneys described their efforts to convince defendant to accept the plea bargain, including a mock trial in the defense attorneys’ office finding defendant guilty. The Second Department determined the defense attorneys, by describing their confidential communications with defendant, which included the strength of the evidence, had become witnesses against the defendant:

… [T]he defendant’s right to counsel was adversely affected, and he received ineffective assistance of counsel when his attorneys revealed confidential communications on the record and, in effect, took a position adverse to him … . Contrary to the People’s contention, defense counsels did more than merely express concern that the defendant misunderstood the nature of the relevant issues … . Instead, defense counsels emphasized the strength of the evidence against their client, including revealing that a mock trial conducted in their office resulted in the defendant being found guilty … . These detailed statements, in effect, made defense counsels witnesses against their client, regardless of whether defense counsels allegedly made these statements in order to aid the application for an examination pursuant to CPL article 730 or in an attempt to persuade the defendant to accept what they viewed as a highly favorable plea offer. Although defense counsels had an obligation to advise the defendant regarding the plea offer … , the defendant retains the authority to accept or reject a plea offer, even having accepted the assistance of counsel … , and defense counsels must provide meaningful representation consistent with the defendant’s desire to proceed to trial … . People v Montgomery, 2025 NY Slip Op 01111, Second Dept 2-26-25

Practice Point: Here the defense was trying to help the defendant by requesting a competency hearing after he rejected a favorable plea offer. In arguing for the competency hearing, the defense revealed confidential discussions with the defendant about the strength of the evidence, thereby becoming witnesses against the defendant and depriving him of his right to counsel.​

 

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ALTHOUGH A COURT HAS THE DISCRETIONARY “INTERESTS OF JUSTICE” POWER TO VACATE ITS OWN ORDER, THAT POWER SHOULD ONLY BE EXERCISED IN UNIQUE OR UNUSUAL CIRCUMSTANCES NOT PRESENT HERE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court should not have vacated its own dismissal of the action in 2013 because (Wilmington) demonstrated none of criteria for vacation of a judgment or order described in CPLR 5015 (a);

“Under CPLR 5015(a), the court which rendered a judgment or order may relieve a party from it upon such terms as may be just, upon the ground of excusable default; newly discovered evidence; fraud, misrepresentation, or other misconduct of an adverse party; lack of jurisdiction to render the judgment or order; or reversal, modification, or vacatur of a prior judgment or order upon which it is based” … . “In addition to the specific grounds set forth in CPLR 5015(a), a court may, in its discretion, vacate its own judgment ‘for sufficient reason and in the interests of substantial justice'” … . “However, a court’s inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from judgments taken through fraud, mistake, inadvertence, surprise or excusable neglect” … . In other words, “[a] court should only exercise its discretionary authority to vacate a judgment in the interests of substantial justice where unique or unusual circumstances . . . warrant such action” … .

Here, the Supreme Court improvidently exercised its discretion in granting that branch of the Wilmington’s motion which was to vacate the 2013 dismissal order. Importantly, Wilmington did not adequately explain why it delayed nearly eight years before filing its motion … . Wells Fargo Bank, N.A. v Sulton, 2025 NY Slip Op 01128, Second Dept 2-26-25

Practice Point: CPLR 5015 (a) gives a court the discretionary power to vacate its own order “in the interests of substantial justice.” That power should only be exercised in unique or unusual circumstances, not present here.

 

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SUBSEQUENT COMPLAINTS WHICH REPEAT THE ALLEGATIONS IN THE INITIAL COMPLAINT ARE “SUPPLEMENTAL,” NOT “AMENDED,” COMPLAINTS; DEFENDANT NEED ONLY ANSWER THE INITIAL COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this foreclosure proceeding was not in default. The defendant answered the first complaint but did not answer two subsequent complaints which were designated “amended complaints,” Amended complaints require an answer, but “supplemental complaints” do not require an answer. Here the “amended complaints” merely repeated the allegations in the original complaint, making them “supplemental,” not “amended,” complaints:

“Generally, an amended complaint supersedes the original pleading, the defendant’s original answer has no effect, and a new responsive pleading is substituted for the original answer. In contrast, a supplemental complaint does not supersede the original pleading and the answer which had already been served at the time the supplemental pleading was interposed remains in effect” … . Here, insofar as asserted against the defendant, the purported amended complaints merely repeated the same allegations against the defendant that were made in the original complaint and, thus, are properly characterized as supplemental complaints … . As the defendant had already answered the allegations asserted, no further answer was required within the meaning of CPLR 3025(d). Thus, the defendant was not in default. U.S. Bank N.A. v Deblinger, 2025 NY Slip Op 01126, Second Dept 2-26-25

Practice Point: “Amended” complaints require a new answer, “supplemental” complaints do not. Here, although the subsequent complaints were designated “amended,” they in fact were “supplemental” because they merely repeated the allegations in the first complaint.

 

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AT THE SUPPRESSION HEARING THE OFFICER TESTIFIED THE SEARCH OF DEFENDANT’S PERSON AFTER A TRAFFIC STOP WAS BASED UPON THE ODOR OF MARIJUANA; THE OFFICER DID NOT TESTIFY HE WAS QUALIFIED BY TRAINING AND EXPERIENCE TO RECOGNIZE THE ODOR OF MARIJUANA; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the traffic stop was proper (inoperable brake light) but the search of defendant’s person, based on the odor of marijuana, was not:

… [T]he officer’s testimony was insufficient to establish that there was probable cause for the search of the defendant’s person. As the law existed in 2020, “the odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, [was alone] sufficient to constitute probable cause to search the vehicle and its occupants” … . Here, however, the officer did not testify that he had any training or experience in detecting the odor of marihuana … .

Accordingly, the Supreme Court should have granted that branch of the defendant’s omnibus motion which was to suppress physical evidence. People v McLeod, 2025 NY Slip Op 01108, Second Dept 2-26-25

Practice Point: Under the law as it was in 2020, the search of a person could be justified by the odor of marijuana, but only if the officer was qualified by training and experience to recognize the odor of marijuana. Here the officer did not testify he was qualified to recognize the odor of marihuana. Therefore, defendant’s motion to suppress should have been granted.

 

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THE PROBATION CONDITION THAT DEFENDANT “SUPPORT DEPENDENTS AND MEET OTHER FAMILY RESPONSIBILITIES” WAS NOT TAILORED TO THE OFFENSE (CRIMINAL POSSESSION OF A WEAPON) AND WAS THEREFORE DELETED (SECOND DEPT). ​

The Second Department, deleting a condition of probation, determined that the condition that defendant “support dependents and meet other family responsibilities” was not tailored to the offense (criminal possession of a weapon):

“Pursuant to Penal Law § 65.10(1), conditions of probation ‘shall be such as the court, in its discretion, deems reasonably necessary to insure that [a] defendant will lead a law-abiding life or to assist [the defendant] to do so'” … . “The statute ‘quite clearly restricts probation conditions to those reasonably related to a defendant’s rehabilitation'” … .

Here, under the circumstances of this case, Condition No. 14, requiring that the defendant “[s]upport dependents and meet other family responsibilities,” was improperly imposed because it was not individually tailored in relation to the offense and therefore, was not reasonably related to the defendant’s rehabilitation or necessary to insure that he will lead a law-abiding life … . People v Sobers, 2025 NY Slip Op 00992, Second Dept 2-19-25

Practice Point: Probation conditions must be tailored to the offense to which defendant pled guilty. Here the condition that defendant support dependents and meet family responsibilities was not relevant to the offense (criminal possession of a weapon).​

 

THE FEDERAL OFFENSE WHICH SERVED AS A PREDICATE FOR DEFENDANT’S SECOND-FELONY-OFFENDER DESIGNATION DOES NOT REQUIRE THAT THE FIREARM INVOLVED BE OPERABLE; THE RELEVANT NEW YORK FELONY OFFENSE INCLUDES OPERABILITY AS AN ELEMENT; THEREFORE THE FEDERAL OFFENSE IS NOT A VALID PREDICATE OFFENSE (SECOND DEPT).

The Second Department, vacating defendant’s second-felony-offender designation, determined the federal crime constituting the predicate offense was not a felony in New York  One of the elements of the relevant New York felony was that the firearm involved in the offense be operable. That element was missing from the federal offense:

“Penal Law § 70.06 requires the imposition of enhanced sentences for those found to be predicate felons” … . Among other criteria, for the purpose of determining whether a prior conviction is a predicate felony conviction, the conviction must have been in New York of a felony, “or in any other jurisdiction of an offense for which a sentence to a term of imprisonment in excess of one year or a sentence of death was authorized and is authorized in this state irrespective of whether such sentence was imposed” (Penal Law § 70.06[1][b][i]). “Since New York authorizes sentences exceeding one year only for felonies, the second prong of this statutory test requires an inquiry to determine whether the foreign conviction has an equivalent among New York’s felony-level crimes” … . “As a general rule, this inquiry is limited to a comparison of the crimes’ elements as they are respectively defined in the foreign and New York penal statutes” … . Here, the defendant’s predicate crime does not require as one of its elements that the firearm be operable … and, thus, does not constitute a felony in New York for the purpose of enhanced sentencing … . People v Davis, 2025 NY Slip Op 00977, Second Dept 2-19-25

Practice Point: Here defendant’s prior federal offense did not require that the firearm involve be operable. The corresponding New York felony requires operability. Therefore the federal offense could not serve as a predicate offense for a second-felony-offender designation.

 

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