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THE COUNTY CHARTER, WHICH PURPORTED TO ELIMINATE THE CONSTRUCTIVE-NOTICE THEORY OF LIABILITY FOR INJURY TO A BICYCLIST BY A DANGEROUS CONDITION IN A COUNTY ROAD, DID NOT SUPERSEDE THE HIGHWAY LAW; TO STATE A PRIMA FACIE CASE IN SUPPORT OF SUMMARY JUDGMENT, THE COUNTY MUST DEMONSTRATE BOTH A LACK OF WRITTEN NOTICE AND A LACK OF CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Golia, determined the county charter, which allowed the county to “opt out” of the constructive-notice provisions in the Highway Law, did not supersede the Highway Law. Plaintiff, a bicyclist, was injured when his bicycle struck a pothole on a county road. Supreme Court denied the county’s summary judgment motion which argued the county charter eliminated the constructive-notice theory of liability. The Second Department affirmed the denial and further held that the county was required to show both a lack of written notice and a lack of constructive notice of the dangerous condition to warrant summary judgment:

In an action to recover damages for personal injuries sustained in a bicycle accident, we are asked to determine whether the defendant, County of Suffolk, may enact legislation pursuant to the Municipal Home Rule Law that supersedes a New York State law. Specifically, the County contends that, through the enactment of Suffolk County Charter § C8-2(A)(2), it may supersede the provision of Highway Law § 139(2) that allows for an action to be maintained against a county, regardless of prior written notice, where the county had constructive notice of the alleged defective condition, pursuant to Municipal Home Rule Law § 10(1)(ii)(a)(5). We hold that Suffolk County Charter § C8-2(A)(2)(iii) contradicts Highway Law § 139(2) and, thus, the County may not, as it contends, “exercise [its] right to opt out” of the requirements of said statute. The County also contends that, in effect, even if constructive notice could be a theory of recovery in the instant action, the plaintiff bears the burden of establishing in the first instance that the County had constructive notice of the alleged defective condition. In other words, the County contends that its burden on this motion for summary judgment was only to show that it lacked prior written notice of the allegedly defective condition before the burden shifted to the plaintiff to demonstrate that the County had constructive notice of the condition. We hold, consistent with our precedent, that, when moving for summary judgment dismissing the complaint in cases invoking Highway Law § 139(2), the County must establish, prima facie, that it lacked both prior written notice and constructive notice of the alleged defective condition before the burden shifts to the plaintiff to raise a triable issue of fact in that regard or with regard to whether another exception applies. Romas v County of Suffolk, 2026 NY Slip Op 02142, Second Dept 4-8-26

Practice Point: A county charter provision which contradicts the New York State Highway Law does not supersede the provisions of the Highway Law.

 

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THE GUARDIAN’S ILLNESS PRECIPITATED THE PETITION TO REMOVE HER; UPON HER RECOVERY THERE WAS NO JUST CAUSE FOR HER REMOVAL; PETITION DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the evidence did not support the removal of the incapacitated person’s (Frank’s) wife, Zita, as the guardian of the person and property of Frank. The removal petition, brought by Frank’s daughter, Tara, was dismissed:

In December 2022, the wife was temporarily hospitalized, which precipitated the petition … to remove her as guardian of the person and property of the incapacitated person. …

The determination “to remove a guardian of the person and property of an incapacitated person pursuant to the Mental Hygiene Law is addressed to the sound discretion of the Supreme Court” … . The “overarching concern remains the best interest of the incapacitated person” … . “A guardian may be removed pursuant to Mental Hygiene Law § 81.35 when the guardian fails to comply with an order, is guilty of misconduct, or for any other cause which to the court shall appear just” … .

Here, the Supreme Court improvidently exercised its discretion in removing the wife as guardian of the person and property of the incapacitated person (see Mental Hygiene Law § 81.35). The wife’s temporary medical crisis that had precipitated the petition was resolved, and the petitioner failed to demonstrate that any of the wife’s actions regarding the incapacitated person’s care were a just cause for removal … . Matter of Frank M. (Zita C.–Tara M. M.), 2026 NY Slip Op 02116, Second Dept 4-8-26

Practice Point: Other than the guardian’s illness, there was no support for her removal as guardian. Her recovery, therefore, warranted dismissal of the removal petition.

 

THE APPENDIX SUBMITTED BY THE APPELLANT WAS INCOMPLETE; APPEAL DISMISSED (SECOND DEPT).

The Second Department, dismissing the appeal, determined the appendix submitted by the appellant was insufficient to allow consideration of the issues raised:

“[A]n appellant who perfects an appeal by using the appendix method must file an appendix that contains all relevant portions of the record to enable the court to render an informed decision on the merits of the appeal” … . “‘The appendix shall contain those portions of the record necessary to permit the court to fully consider the issues which will be raised by the appellant and the respondent, including material excerpts from transcripts of testimony[,] . . . papers in connection with a motion, and critical exhibits'” … . Further, “[e]xcerpts from the transcripts ‘must not be misleading or unintelligible by reason of incompleteness or lack of surrounding context'” … . “‘An appellate court should not be subjected to the task of untangling and mastering the facts from an inadequate and incoherent appendix'” … .

Here, the plaintiffs omitted from the appendix, among other things, material excerpts from transcripts of deposition testimony and each of the defendants’ papers in connection with the separate motions which were the subject of the order appealed from … . “These omissions inhibit the court’s ability to render an informed decision on the merits of the appeal” … . Accordingly, as the plaintiffs have failed to provide this Court with an adequate appendix, we dismiss the appeal …  .Kelly-Newhouse v Chase Meadows Farm, LLC, 2026 NY Slip Op 02108, Second Dept 4-8-26

Practice Point: When an appeal is perfected by the appendix method, if the appendix does not include all of the record necessary for consideration of the issues raised in the appeal, the appeal will be dismissed.

 

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IN A MATTER OF FIRST IMPRESSION, THE SECOND DEPARTMENT HELD THAT THE 90-DAY TIME-LIMIT FOR FILING A NOTICE OF CLAIM AGAINST A SCHOOL DISTRICT ALLEGING NEGLIGENT SUPERVISION CAN BE TOLLED UNDER THE “CONTINUING WRONG” DOCTRINE; HERE IT WAS ALLEGED PLAINTIFF-STUDENT WAS ABUSED BY OTHER STUDENTS BEGINNING IN OCTOBER 2017; THE NOTICE OF CLAIM WAS FILED IN FEBRUARY 2018 (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Voutsinas, reversing Supreme Court, determined the defendant NYC Department of Education (DOE) was not entitled to summary judgment in this negligent supervision action alleging a long pattern of abuse of plaintiff-student, J.A., by other students. Notably, the Second Department, as a matter of first impression, held that the 90-day time-limit for filing a Notice of Claim was tolled by the “continuing wrong” doctrine:

This Court holds that the notice of claim was timely because the continuing wrong doctrine applies … . As a general rule, the continuing wrong doctrine may be “employed where there is a series of continuing wrongs and serves to toll the running of the limitations period to the date of the commission of the last wrongful act” … . The continuing wrong doctrine allows a later accrual date of a cause of action “where the harm sustained by the complaining party is not exclusively traced to the day when the original wrong was committed” … . “The distinction is between a single wrong that has continuous effects and a series of independent wrongs” … .

This Court has not previously addressed the question of whether the period within which a notice of claim may be filed is tolled where there is a continuous pattern of harassment and/or unlawful conduct in a school setting and allegedly negligent supervision of a student by school administrators charged with a duty to properly supervise their students. J.A. v City of New York, 2026 NY Slip Op 02084, Second Dept 4-8-26

Practice Point: Here in this negligent-supervision action it was alleged plaintiff-student was subjected to a pattern of abuse by other students for a period of months. In a matter of first impression, the Second Department held that incidents which occurred more than 90-days before the Notice of Claim was filed were not time-barred pursuant to the “continuing wrong” doctrine.

 

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A PLAINTIFF NEED NOT SUBMIT ANY EVIDENCE IN OPPOSITION TO A MOTION TO DISMISS AS OPPOSED TO A MOTION FOR SUMMARY JUDGMENT; HERE THE COMPLAINT STATED CAUSES OF ACTION FOR MEDICAL MALPRACTICE AND LACK OF INFORMED CONSENT; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to dismiss the medical malpractice complaint should not have been granted, noting that a plaintiff need not present any evidence in opposition to a motion to dismiss, as opposed to a motion for summary judgment:

Supreme Court improperly granted the motion of [defendants] pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against them based on the plaintiff’s failure to comply with the court’s earlier directive “to provide an affidavit from a physician attesting [to] the merits of her claims.” The burden does not shift to the nonmoving party on a motion pursuant to CPLR 3211(a)(7). A plaintiff need not make an evidentiary showing in support of the complaint in order to defeat such a motion and will not be penalized for failure to do so … . Here, where the motion was not converted into one for summary judgment, the plaintiff had no obligation to provide an affidavit from an expert to support the allegations in the amended complaint in order to defeat the [defendants’] motion … . * * *

… [A]ccepting the allegations in the amended complaint as true and according the plaintiff the benefit of every possible favorable inference, the amended complaint sufficiently stated causes of action alleging medical malpractice and lack of informed consent … . Wilber v Borgen, 2026 NY Slip Op 02001, Second Dept 4-1-26

Practice Point: A plaintiff need not submit any evidence in opposition to a motion to dismiss the complaint. Here the judge should not have granted the motion on the ground the plaintiff did not comply with the court’s directive to submit an affidavit from a physician.

 

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SUPREME COURT’S GRANTING OF DEFENDANTS’ SUPPRESSION MOTIONS REVERSED IN THIS TRAFFIC STOP CASE; THE REPORT THAT THE VEHICLE HAD BEEN INVOLVED IN AN ARMED ROBBERY THAT DAY AND THE DEFENDANTS’ LACK OF COOPERATION AT THE TIME OF THE STOP JUSTIFIED BREAKING THE VEHICLE’S WINDOWS, REMOVING THE DEFENDANTS AND HANDCUFFING THEM; OBSERVING A FIREARM IN THE VEHICLE PROVIDED PROBABLE CAUSE TO ARREST (SECOND DEPT).

The Second Department, reversing Supreme Court’s suppression of evidence seized during a traffic stop, over a dissent, determined the police had reasonable suspicion to stop the vehicle and exigent circumstances justified the search of a defendant’s fanny pack. The dissent disagreed about the legitimacy of the search of the fanny pack:

… [T]he police officers had reasonable suspicion to stop the vehicle based upon the fact that the description of the vehicle matched that of a vehicle that had been involved in an armed robbery earlier that day, and the vehicle’s location had been detected by a license plate reader approximately five minutes prior to the stop … . Moreover, the actions of the police officers in drawing their guns and ordering the defendants out of the vehicle were justified under the circumstances as appropriate measures to ensure their safety … . Additionally, when the defendants failed to cooperate with the officers’ instructions, the officers acted appropriately in breaking the vehicle’s “excessive[ly] . . . tint[ed]” front windows for their own safety and then in removing the defendants from the vehicle and placing them in handcuffs … . The police thereafter had probable cause to arrest the defendants once the officer observed a firearm in plain view in the compartment of the driver’s side door of the vehicle … .

… [T]he subsequent search of Rivera’s fanny pack was justified as a search incident to a lawful arrest … . * * *

“Under the State Constitution, to justify a warrantless search incident to arrest, the People must satisfy two separate requirements” … . “The first imposes spatial and temporal limitations to ensure that the search is ‘not significantly divorced in time or place from the arrest'” … . “The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances” … . …

… The police were notified that a vehicle matching the description of the subject vehicle was involved earlier the same day in a gunpoint robbery in Brooklyn. … [A]fter the vehicle was boxed in by police vehicles, the occupants tried to escape the scene in the vehicle and continually refused the officer’s directives to lower the heavily tinted car windows or exit the vehicle. People v David, 2026 NY Slip Op 01980, Second Dept 4-1-26

Practice Point: Here Supreme Court granted defendants’ suppression motions and the Appellate Division reversed finding (1) the guns-drawn traffic stop, (2) the breaking of the vehicle’s windows, (3) the removal of defendants from the vehicle, (4) the handcuffing of the defendants, and (5) the arrest of the defendants upon observing a firearm in the vehicle, were constitutionally justified.

 

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THE POLICE OBSERVED A GROUP OF PEOPLE CHASING THE DEFENDANT AND ESSENTIALLY JOINED IN WITHOUT ANY KNOWLEDGE OF THE UNDERLYING CIRCUMSTANCES; THE WEAPON SEIZED IN THE STREET STOP SHOULD HAVE BEEN SUPPRESSED (SECOND DEPT).

The Second Department, reversing defendant’s criminal possession of a weapon conviction (after trial) and dismissing the indictment, determined the police who participated in the foot chase and street stop of the defendant did not have the requisite “reasonable suspicion.” The police (in civilian clothes) saw a group of people chasing the defendant and essentially simply joined in the chase without any knowledge of the underlying circumstances. The seized firearm should have been suppressed:

… [T]he People failed to meet their burden of establishing the legality of the pursuit of the defendant, as the police lacked reasonable suspicion that the defendant had committed, was committing, or was about to commit a crime … . Neither Hain’s [the officer’s] observation of the defendant running away from a “group of civilians” chasing him, nor the female voice saying “that’s him, he’s getting away, grab him,” without reference to any specific acts, were sufficient to confer reasonable suspicion that the defendant was engaged in criminal activity, as opposed to the defendant being the victim of criminal activity or having no connection to any criminal activity … . Hain acknowledged that “I wasn’t sure exactly what was going on at the time,” and that the group could have been chasing the defendant “for anything.” Further, Hain’s vague testimony that when the group caught up to the defendant, he observed the defendant and a female individual “engaged in some sort of physical altercation,” which he described as “tussling, pulling back and forth at each other,” was insufficient, absent any details, to satisfy the People’s burden of establishing reasonable suspicion that the defendant was engaged in criminal activity. Hain acknowledged that “I don’t know if [the defendant] was defending himself,” and he did not testify that the defendant ever struck the female individual or engaged in any conduct constituting an assault or other criminal activity. Therefore, it cannot be determined from Hain’s testimony elicited at the hearing whether the defendant was merely trying to pull away from the female individual to continue running away after she and the group caught up to him.

Thus, Hain’s observations did not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion necessary to lawfully pursue the defendant, even when coupled with the defendant’s flight … . People v Alberto, 2026 NY Slip Op 01976, Second Dept 4-1-26

Practice Point: Here the police saw a group of people chasing the defendant and joined in without any knowledge of the underlying circumstances. Therefore the street stop was not justified by “reasonable suspicion.”

 

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SUMMARY JUDGMENT DISMISSING THE “UNDUE INFLUENCE” OBJECTION TO PROBATE OF A WILL SHOULD NOT HAVE BEEN GRANTED; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, noted that summary judgment is rarely appropriate where a party’s undue influence on the decedent is alleged as an objection to probate of a will:

… Surrogate’s Court should not have granted that branch of the petitioners’ motion which was for summary judgment dismissing the objection based on undue influence on the part of Theodos. “To invalidate an instrument on the ground of undue influence, there must be evidence that the influence exerted amounted to a moral coercion that restrained independent action and destroyed free agency or that, by importunity that could not be resisted, constrained a person to do that which was against his or her free will and desire, but which he or she was unable to refuse or too weak to resist” … . “In general, the burden of proving undue influence rests with the party asserting its existence” … . “An inference of undue influence, requiring the beneficiary to explain the circumstances of the bequest, arises when a beneficiary under a will was in a confidential or fiduciary relationship with the testator and was involved in the drafting of the will” … . “The adequacy of the explanation presents a question of fact for the jury” … . The existence of a confidential relationship is also “ordinarily . . . a question of fact” … .

Here, the record reflects that Theodos was assisting in the management of the decedent’s finances in the years leading up to the execution of the will and that certain provisions of the will were communicated to the decedent’s attorney through Theodos. In addition, Theodos was named as one of the executors of the will and was also named as a beneficiary, receiving a bequest of $20,000. As such, an inference of undue influence arises … , and there remain triable issues of fact in that regard … . Matter of Gennarelli, 2026 NY Slip Op 01962, Second Dept 4-1-26

Practice Point: Consult this decision for an explanation of the burden of proof for an “undue influence” objection to probate and why summary judgment is usually inappropriate in this context.​

 

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PLAINTIFF IN THIS FORECLOSURE ACTION DELAYED SIX YEARS BEFORE RESTORING THE ACTION TO THE ACTIVE CALENDAR AND FOUR YEARS BEFORE MOVING FOR LEAVE TO ENTER A DEFAULT JUDGMENT; INTEREST ON THE MORTGAGE DEBT SHOULD HAVE BEEN TOLLED FOR THOSE PERIODS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that interest on the mortgage debt in this foreclosure action should have been tolled because plaintiff failed to explain a six-year delay in restoring the action to the active calendar and its four-year-delay in moving for leave to enter a default judgment:

… Supreme Court should have granted the defendant’s application to toll the accrual of interest on the note from November 1, 2011, to September 13, 2022. “‘A foreclosure action is equitable in nature and triggers the equitable powers of the court'” … .. “‘Once equity is invoked, the court’s power is as broad as equity and justice require'” … . “‘In an action of an equitable nature, the recovery of interest is within the court’s discretion. The exercise of that discretion will be governed by the particular facts in each case, including any wrongful conduct by either party'” … .

Here, the plaintiff failed to explain its six-year delay in moving to restore the action to the active calendar, and further failed to explain its four-year delay in moving for leave to enter a default judgment against the defendant and for an order of reference after the action was restored to the active calendar. Under the circumstances of this case, since the defendant was prejudiced by these unexplained delays, during which time interest had been accruing, the interest on the note should have been tolled from November 1, 2011, to September 13, 2022 … . Greenpoint Mtge. Funding, Inc. v McFarlane, 2026 NY Slip Op 01945, Second Dept 4-1-26

Practice Point: Foreclosure actions are equitable in nature. Here undue delays by the plaintiff warranted tolling the accrual of interest for more than ten years.

 

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PLAINTIFF’S TESTIMONY THAT THE UNSECURED LADDER MOVED SUDDENLY AND TILTED TO THE LEFT WARRANTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined plaintiff in this ladder-fall case was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff testify the unsecured ladder moved suddenly and titled to the left:

… [T]he claimant demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). The claimant’s deposition testimony established that the unsecured ladder moved suddenly and tilted to the left, causing him to fall … . In opposition, the defendant failed to raise a triable issue of fact as to whether the claimant’s own acts or omissions were the sole proximate cause of the accident … . Bista v State of New York, 2026 NY Slip Op 01936, Second Dept 4-1-26

Practice Point: A plaintiff’s testimony that the ladder was unsecured and moved suddenly can be sufficient to warrant summary judgment in a Labor Law 240(1) action.

 

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