Tag Archive for: Second Department

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IN THIS REAR-END COLLISION CASE, DEFENDANT’S AFFIRMATION THAT PLAINTIFF STOPPED IN THE HIGHWAY LANE FOR NO APPARENT REASON RAISED A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court in this rear-end collision case, determined defendant’s affirmation that plaintiff stopped for no apparent reason raised and question of fact:

… [T]he plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability through the submission of the plaintiff driver’s affidavit, in which he averred that his vehicle was struck in the rear by the defendants’ vehicle (see Vehicle and Traffic Law § 1129[a] …). However, an affirmation of the defendant driver, submitted in opposition to the motion, raised triable issues of fact as to whether the defendant driver had a nonnegligent explanation for the defendants’ vehicle striking the rear of the plaintiffs’ vehicle. According to the defendant driver, the plaintiff driver was solely at fault for causing the accident by making a sudden stop for no apparent reason in the middle of their lane of traffic on the highway … . Ramirez v Red Cloud Trucking, Inc., 2026 NY Slip Op 05332, Second Dept 9-16-26

Practice Point: In this rear-end collision case, defendant’s affirmation that plaintiff stopped in the highway lane for no apparent reason raised a question of fact whether there was a nonnegligent explanation for striking the back of plaintiff’s vehicle.

 

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THE DESTRUCTION OF VIDEO EVIDENCE OF THE SLIP AND FALL WARRANTED A SANCTION; HOWEVER, IT WAS AN ABUSE OF DISCRETION TO PRECLUDE THE DEFENSE FROM PRESENTING ANY EVIDENCE RE: LIABILITY; AN ADVERSE INFERENCE CHARGE WITH RESPECT TO THE VIDEO EVIDENCE IS AN APPROPRIATE SANCTION (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the appropriate sanction for the destruction of the video which depicted the slip and fall was an adverse inference charge with respect to the video evidence, not the preclusion of all defense evidence re: liability:

During discovery, the defendants produced a video that was one minute and seven seconds in length and which depicted the moments shortly after the plaintiff’s fall. The premises’s superintendent testified that he recorded the video on his cell phone from the building’s surveillance footage on the day of the incident. The portion of the surveillance video that the superintendent recorded does not capture the moment of the fall itself or any time prior to the fall. * * *

Supreme Court properly determined that an imposition of spoliation sanctions against the defendants was warranted, as the defendants had an obligation to preserve the subject surveillance videos and were at least negligent in failing to preserve them, and the destroyed evidence was relevant to the plaintiff’s claim … . However, the court improvidently exercised its discretion in precluding the defendants from presenting any testimony, evidence, or defense as to their liability at trial. Instead, under the circumstances, the court should have directed that an adverse inference charge be given against the defendants at trial with respect to the video surveillance footage of the incident … . Alvarez v 100-10 67th Rd. Condominium, 2026 NY Slip Op 05261, Second Dept 9-16-26

Practice Point: Here video evidence of the slip and fall was destroyed warranting a sanction. Preclusion of all defense evidence re: liability was an abuse of discretion. An adverse inference jury instruction was appropriate.

Similar issues and results in Houghton v Piperaro, 2026 NY Slip Op 05290, Second Dept 9-16-26.

 

 

 

 

 

 

 

 

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IF THE LADDER DOESN’T MOVE AND PLAINTIFF LOSES HIS BALANCE AND FALLS, THERE IS NO LIABILITY UNDER LABOR LAW 240(1); BUT IF THE LADDER MOVES FOR NO APPARENT REASON LIABILITY ATTACHES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff in this ladder-fall case was entitled to summary judgment on the Labor Law 240(1) cause of action. The court clearly explained when Labor Law 240(1) liability is triggered by a fall from a ladder. Even if the ladder moves for no apparent reason, liability attaches:

“To establish a violation under Labor Law § 240(1), ‘[t]here must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff’s injuries'” … . “The collapse of a scaffold or ladder for no apparent reason while a plaintiff is engaged in an activity enumerated under the statute creates a presumption that the ladder or scaffold did not afford proper protection” … . “Where, for instance, the plaintiff falls from a ladder because the plaintiff lost his or her balance, and there is no evidence that the ladder was defective or inadequate, liability pursuant to Labor Law § 240(1) does not attach” … . “By contrast, where a ladder slides, shifts, tips over, or otherwise collapses for no apparent reason, the plaintiff has established a violation” … . Nunez v Trustees of Columbia Univ., 2026 NY Slip Op 05319, Second Dept 9-16-26

Practice Point: Consult this decision for a clear explanation of when Labor Liability 240(1) liability is triggered by a fall from a ladder.​

 

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THE CONDITIONAL ORDER OF DISMISSAL DID NOT MEET THE REQUIREMENTS OF A VALID 90-DAY NOTICE PURSUANT TO CPLR 3216(A); THEREFORE THE JUDGE COULD NOT, SUA SPONTE, DISMISS THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the conditional order of dismissal did not serve as a 90-day notice because it did not state that failure to comply with the notice will serve as a basis for dismissal for failure to prosecute. Therefore the judge did not have the authority, sua sponte, to dismiss the complaint:

“CPLR 3216 permits a court, on its own initiative, to dismiss an action for want of prosecution where certain conditions precedent have been complied with” … . As relevant here, an action cannot be dismissed pursuant to CPLR 3216(a) “‘unless a written demand is served upon the party against whom such relief is sought in accordance with the statutory requirements, along with a statement that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him [or her] for unreasonably neglecting to proceed'” … . “While a conditional order of dismissal may have the same effect as a valid 90-day notice pursuant to CPLR 3216” … , here, the conditional order of dismissal was defective in that it did not state that the plaintiff’s failure to comply with the notice will serve as a basis for a motion by the court to dismiss the complaint for failure to prosecute … . “In the absence of proper notice, the court was without power to dismiss the action for the plaintiff’s failure to comply with the conditional order of dismissal” … . Under these circumstances, the action should have been restored to the active calendar. Nationstar Mtge., LLC v Adekoje, 2026 NY Slip Op 05315. Second Dept 9-16-26

Practice Point: Although a conditional order of dismissal can serve as a valid 90-day notice pursuant to CPLR 3216, to do so the conditional order of dismissal must meet all the content requirements mandated by CPLR 3216, including informing the plaintiff that the failure to comply will result in dismissal of the complaint.

 

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PURSUANT TO GENERAL MUNICIPAL LAW 50-H, IT WAS THE MUNICIPALITY’S, NOT THE CLAIMANT’S, OBLIGATION TO RESCHEDULE THE 50-H EXAMINATION AFTER CLAIMANT’S COUNSEL WITHDREW; THEREFORE THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED BASED ON CLAIMANT’S FAILURE TO APPEAR AT THE EXAMINATION (SECOND DEPT). ​

The Second Department, reversing Supreme Court on an issue first raised on appeal, determined claimant’s failure to appear at an oral examination pursuant to General Municipal Law section 50-h did not warrant dismissal of the complaint. The scheduled examination did not take place because claimant’s counsel withdrew. Pursuant to the statute, it was the municipality’s, not the claimant’s, obligation to reschedule the examination:

Although [plaintiff’s] contention is raised for the first time on appeal, we reach the contention because it presents a pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture … .

“‘The purpose of General Municipal Law § 50-h is to enable a municipality to make a prompt investigation of the circumstances of a claim by examining the claimant about the facts of the claim'” … . “The oral examination of a claimant pursuant to General Municipal Law § 50-h serves to supplement the notice of claim and provides an investigatory tool to the municipality, with a view toward settlement” … . Generally, such examination must be conducted within 90 days of the service of the demand (see General Municipal Law § 50-h[5]). “‘Compliance with a demand for an oral examination pursuant to General Municipal Law § 50-h and Public Housing Law § 157(2) is a condition precedent to the commencement of an action against the defendant New York City Housing Authority'” … , and a plaintiff’s failure to so comply warrants dismissal of the action … .

However, pursuant to General Municipal Law § 50-h(5), “[i]f the claimant requests an adjournment or postponement beyond the ninety day period, the [municipality] shall reschedule the [examination] for the earliest possible date available.” Thus, “[w]hen . . . the [examination] has been postponed indefinitely beyond 90 days after service of the demand and the municipality does not reschedule the [examination], a plaintiff’s failure to appear for a[n examination] will not warrant dismissal of the complaint” … . Jones v New York City Hous. Auth., 2026 NY Slip Op 05293, Second Dept 9-16-26

Practice Point: Pursuant to General Municipal Law 50-h, if a claimant requests an adjournment or a postponement of a 50-h examination, it is the municipality’s, not the claimant’s, obligation to reschedule.

 

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HERE IN THIS BUS-TRAFFIC-ACCIDENT CASE, THE DEFENDANTS ADMITTED THE BUS DRIVER WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT; A NEGLIGENT-HIRING-AND-RETENTION CAUSE OF ACTION, THEREFORE, WAS NOT AVAILABLE TO THE PLAINTIFFS; THE PLAINTIFFS WERE NOT ENTITLED TO DISCOVERY OF THE DRIVER’S PERSONNEL FILE OR THE POLICY MANUAL FOR DRIVER RETENTION AND TRAINING BECAUSE BECAUSE THOSE DOCUMENTS WERE NOT RELEVANT TO THE EMPLOYER’S LIABILITY UNDER RESPONDEAT SUPERIOR (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this bus-traffic-accident case, determined that neither the bus driver’s personnel file nor the policy manual relating to the retention and training of the bus driver were discoverable. Those records would only be relevant to an action for negligent hiring and retention, which (generally) is not available when the suit against the driver’s employer is based upon respondeat superior:

Generally, “where an employee is acting within the scope of his or her employment, the employer is liable for the employee’s negligence under a theory of respondeat superior, and a plaintiff may not proceed with a cause of action to recover damages for negligent hiring and retention” … . Thus, since here, the defendants admit that [the driver] was acting within the scope of his employment at the time of the accident, neither his personnel file nor the portions of the defendants’ policy manual relating to the retention or training of [the driver] are discoverable … . In addition, the plaintiff failed to show that any alleged remaining portions of the policy manual “would yield matter material and necessary to the prosecution or defense of the action” … . Lewis v New York City Tr. Auth., 2026 NY Slip Op 05175, Second Dept 9-2-26

​Practice Point: Where the employer admits the employee was acting within the scope of his employment at the time of the accident, the employer is liable for the negligence of the employee under a theory of respondeat superior. Generally, in that circumstance a negligent hiring and retention cause of action is not available to the plaintiff.

 

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THE RPAPL 1304 NOTICE REQUIREMENTS WERE CHANGED BETWEEN THE TIME THE NOTICE WAS SENT TO THE DEFENDANTS AND WHEN THE FORECLOSURE PROCEEDINGS WERE BROUGHT; THEREFORE THE RPAPL 1304 NOTICE WAS DEFECTIVE (SECOND DEPT).

The Second Department, reversing Supreme Court in this foreclosure action, determined plaintiff’s motion for summary judgment should not have been granted. The RPAPL 1304 notice requirements were changed between the time the notice was sent to defendants and when foreclosure action was commenced. Therefore the RPAPL 1304 notice, a condition precedent to any foreclosure action, was invalid:

Here, the plaintiff’s RPAPL 1304 notice, dated July 15, 2016, contained the statutory language that was in effect at the time of the notice. However, RPAPL 1304 was amended effective December 20, 2016, and the amendment changed the language that the statute required the notice to contain … . Thus, the plaintiff’s July 15, 2016 RPAPL 1304 notice did not satisfy the condition precedent to litigation for this action commenced in August 2017, after the effective date of the amendment … . Although this issue is raised for the first time on appeal, it may be reached as it involves a pure question of law that appears on the face of the record and could not have been avoided if brought to the court’s attention at the proper juncture … . Wilmington Sav. Fund Socy., FSB v Fischman, 2026 NY Slip Op 05212, Second Dept 9-2-26

Practice Point: The RPAPL 1304 foreclosure notice provisions were changed by amendment between the time the notice was sent to defendants and the action was brought, rendering the notice defective. The issue was properly raised for the first time on appeal.​

 

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ELECTRONIC FILING OF A MOTION TO CONFIRM A REFEREE’S REPORT AND FOR LEAVE TO ENTER A DEFICIENCY JUDGMENT IS NOT IN ACCORDANCE WITH THE SERVICE METHOD CODIFIED IN RPAPL 1371(2); HERE THE IMPROPER SERVICE WAS A BAR TO ENTRY OF THE DEFICIENCY JUDGMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this foreclosure action, determined the electronic filing of the motion to confirm the referee’s report and for leave to file a deficiency judgment was not proper service pursuant to RPAPL 1371(2). The improper service constituted a complete bar to the entry of a deficiency judgment:

The plaintiff … moved to confirm a referee’s report of sale and for leave to enter a deficiency judgment against Newman in the sum of $1,222,732.14. … Supreme Court granted the plaintiff’s motion. A judgment was entered … in favor of the plaintiff … . …

RPAPL 1371(2) specifies the manner in which notice of such motions shall be served, and upon whom the notice shall be served, as follows: “Simultaneously with the making of a motion for an order confirming the sale, . . . the party to whom such residue shall be owing may make a motion in the action for leave to enter a deficiency judgment upon notice to the party against whom such judgment is sought or the attorney who shall have appeared for such party in such action. Such notice shall be served personally or in such other manner as the court may direct.”

Here, the plaintiff’s electronic filing of the motion papers on the New York State Courts Electronic Filing System did not constitute proper service in accordance with RPAPL 1371(2) … Consequently, “‘this constitutes a complete bar to the entry of a deficiency judgment'” … . 11-36 31st Ave. Lender, LLC v RM Newman, LLC, 2026 NY Slip Op 05151, Second Dept 9-2-26

Practice Point: Electronic filing of a motion to confirm a referee’s report and for leave to enter a default judgment is improper service. The correct method of service is codified in RPAPL 1371(2).

 

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THE SUFFOLK COUNTY CODE PROVISIONS WHICH ALLOW THE SEIZURE AND FORFEITURE OF VEHICLES USED BY DRUNK DRIVERS IS CONSTITUTIONAL (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice McCormack, determined the provisions of the Suffolk County Code which provide for the seizure and forfeiture of vehicles used by drunk drivers is constitutional:

On this appeal, we are called upon to consider the validity of Suffolk County’s civil forfeiture statute, codified in chapter 420, article II (hereinafter chapter 420) of the Code of Suffolk County (hereinafter the Code), pursuant to which a vehicle being operated by the defendant Hassan Qamar (hereinafter the defendant) was seized at the time of his arrest for driving while intoxicated. The defendant challenges the validity of chapter 420 of the Code on three bases: (1) that the procedures relating to the post-seizure hearings conducted pursuant thereto violate article VI of the New York State Constitution, and deprived him of due process of law, (2) that the provisions of chapter 420 of the Code are preempted by State law, and (3) that the forfeiture of his vehicle constitutes an excessive fine prohibited by the State and Federal Constitutions. For the reasons that follow, we hold that the defendant’s challenges to the procedures involving the post-seizure hearing have been rendered academic, and that there is no merit to his remaining challenges. Accordingly, we affirm the judgment. * * *

… [A] Suffolk County Police Department (hereinafter the SCPD) police officer observed the defendant operating a Nissan Altima (hereinafter the vehicle) on Pulaski Road in Huntington at a speed of 100 miles per hour in a 35-mile-per-hour zone and passing a steady red traffic control light. According to the felony complaint, the defendant, inter alia, had a strong odor of alcohol on his breath and admitted having “a few beers and a few shots of J[a]m[e]son[ ] W[h]iskey.” The defendant purportedly displayed “clues indicative of intoxication upon submitting to standardized field sobriety test” and submitted to a chemical breath test that resulted in a .20% blood alcohol content. The defendant was arrested and charged with aggravated driving while intoxicated per se pursuant to VTL § 1192(2-a)(a) and driving while intoxicated pursuant to VTL § 1192(3). The defendant had previously been convicted of driving while intoxicated pursuant to VTL § 1192(3) on April 1, 2015. The vehicle was seized and impounded by the SCPD pursuant to chapter 420 of the Code. * * *

… [T]he defendant pleaded guilty to aggravated driving while intoxicated per se pursuant to VTL § 1192(2-a)(a), with one prior conviction. …

 … [T]he plaintiff commenced this civil forfeiture action pursuant to chapter 420 of the Code, seeking forfeiture of the defendant’s vehicle.   Cohen v A 2019 Nissan, 2026 NY Slip Op 05158, Second Dept 9-2-26

 

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HERE THE MEDICAL RECORDS SUGGESTED INJURY ATTRIBUTABLE TO MEDICAL MALPRACTICE SO THE HOSPITAL WAS DEEMED TO HAVE HAD TIMELY NOTICE OF THE NATURE OF THE MALPRACTICE CLAIM; PLAINTIFF’S MOTION TO DEEM THE LATE NOTICE OF CLAIM TIMELY SERVED NUNC PRO TUNC SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to deem the late notice of claim timely served nunc pro tunc should have been granted in this medical malpractice action:

On August 31, 2015, the plaintiff, Estefani Tenezaca, gave birth to the infant A.J.L. (hereinafter the infant) at Elmhurst Hospital Center (hereinafter Elmhurst), a facility controlled by the defendant. The infant was born prematurely at 30 weeks gestation and was treated at Elmhurst until September 16, 2015, when she was transferred to another hospital.

In July 2016, the plaintiff, as parent and natural guardian of the infant, served a notice of claim on the defendant, alleging, among other things, medical malpractice in the defendant’s treatment of the infant. * * *

The plaintiff’s experts opined that the infant suffered a massive bilateral parenchymal hemorrhage as a result of the treatment documented in Elmhurst’s records. * * *

Inasmuch as the Elmhurst records, upon independent review, suggested injury attributable to medical malpractice, those records provided the defendant with actual knowledge of the essential facts constituting the claim … .  Additionally, the plaintiff made an initial showing that the defendant would not suffer any prejudice by the delay in serving a notice of claim, and the defendant failed to rebut that showing with particularized indicia of prejudice … . The plaintiff also established a reasonable excuse for her failure to timely serve a notice of claim … . Tenezaca v New York City Health & Hosps. Corp., 2026 NY Slip Op 05208, Second Dept 9-2-25

Practice Point: In this medical malpractice action plaintiff moved to deem the late notice of claim timely served. The medical records suggested injury attributable to malpractice. Therefore the hospital was deemed to have had timely notice of the nature of the claim.