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THE DEFENDANT TOWN DID NOT MEET THE REQUIREMENTS OF THE NEW YORK VOTING RIGHTS ACT (NYVRA) AND WAS THEREFORE INELIGIBLE FOR THE 90-DAY “SAFE HARBOR” EXTENSION TO ADDRESS THE VIOLATION OF THE NYVRA ALLEGED BY PLAINTIFF-CITIZENS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Chambers, determined that the defendant Town of Newburgh’s motion to dismiss the complaint alleging a violation of the New York Voting Rights Act (NYVRA) was properly denied. The so-called “safe harbor” provision of the NYVRA extends the time allowed for a town to address an alleged violation for 90 days. Here the Second Department held that the actions taken by the town were not sufficient to trigger the 90-day extension:

In a case of first impression, the central issue stated broadly is whether the contents of a resolution passed by a political subdivision pursuant to the New York Voting Rights Act (see Election Law § 17-206[7][b]), in which the political subdivision purported to affirm its intent to enact and implement a remedy to a potential voting rights violation, were sufficient to trigger the 90-day safe harbor provision of that statute. * * *

On January 26, 2024, a law firm representing the plaintiffs sent the Town a NYVRA notification letter, alleging that the Town’s use of an at-large method for electing the members of the Town Board violated the NYVRA by diluting the votes of Hispanic and African-American voters. * * *

… [T]he defendants’ interpretation of the NYVRA seems to prioritize prolonging the process, potentially to strategize their position, over the underlying intent and purpose of the statute. They interpret the NYVRA as requiring a political subdivision to do nothing more than pass a resolution reciting some of the language from the statute after spending 50 days deciding whether it is worthwhile to do so. Then, after passage of a contentless resolution that commits a political subdivision to do nothing unless it unilaterally decides that a NYVRA violation “may” exist, a political subdivision enjoys a 90-day immunity from suit, regardless of whether it does anything further and even when it has conclusively decided to take no further action. These positions are irreconcilable with both the text and the purpose of the NYVRA. For all of the foregoing reasons, the Supreme Court properly determined that the defendants failed to satisfy the safe harbor provision of Election Law § 17-206(7) … . Clarke v Town of Newburgh, 2025 NY Slip Op 00517, Second Dept 1-30-25

Practice Point: Consult this decision for a discussion of the criteria for a 90-day “safe harbor” extension to allow a town to address a complaint by citizens alleging violation of the New York Voting Rights Act.

 

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THERE IS A QUESTION OF FACT WHETHER THE “INSANITY” TOLL OF THE STATUTE OF LIMITATIONS APPLIES TO THIS ASSAULT AND FALSE ARREST ACTION AGAINST THE CITY AND POLICE OFFICERS; THE TOLL APPLIES WHEN PERSONS ARE UNABLE TO PROTECT THEIR LEGAL RIGHTS BECAUSE OF AN INABILITY TO FUNCTION IN SOCIETY (SECOND DEPT).

The Second Department remitted the matter for a determination whether the statute of limitations was tolled because of petitioner’s “insanity” in this assault and false arrest action against the city and police officers:

Pursuant to CPLR 208(a) “[i]f a person entitled to commence an action is under a disability because of . . . insanity at the time the cause of action accrues, and . . . the time otherwise limited [for commencing the action] is less than three years, the time shall be extended by the period of disability.” A toll pursuant to CPLR 208(a) does not toll the necessity of filing a timely notice of claim; rather, it tolls only the time in which to apply for leave to serve a late notice of claim … .

CPLR 208(a) provides no definition of the term “insanity” … . However, the Court of Appeals has concluded that the insanity tolling provision should be narrowly construed and is available “only [to] those individuals who are unable to protect their legal rights because of an over-all inability to function in society” … . “[T]he condition of an individual’s mental capabilities is largely a factual question” … . “The task of determining whether the tolling provision [of CPLR 208] applies ‘is a pragmatic one, which necessarily involves consideration of all surrounding facts and circumstances relevant to the claimant’s ability to safeguard his or her legal rights'” … .

Here, the record before us presents a question of fact as to whether the petitioner was “unable to protect [his] legal rights because of an over-all inability to function in society” during the relevant period, as well as the duration of the alleged insanity … . Matter of Sinclair v City of New York, 2025 NY Slip Op 00453, Second Dept 1-29-25

Practice Point: CPLR 208(a) provides an “insanity toll” of the statute of limitations for persons unable to protect their legal rights because of an inability to function in society.

 

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ALTHOUGH THE CHILD’S IMMIGRANT VISA HAD BEEN LOST, THE PROOF DEMONSTRATED THAT THE CHILD MUST HAVE BEEN ISSUED THE APPROPRIATE VISA AND THAT, THEREFORE, PETITIONER WAS ENTITLED TO REGISTRATION OF A FOREIGN ADOPTION AND AN ORDER OF ADOPTION FOR THE CHILD (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Ford, determined petitioner was entitled to registration of foreign adoption and an order of adoption for the child who was born in China based upon proof the child must have been admitted to the US with an IR-3 or IH-3 immigrant visa, which had been lost:

… [T]the petitioner, a New York resident, was unable to annex a copy of the child’s immigrant visa to the petition because it had been lost. However, the petitioner provided an affidavit averring that the child had been issued the relevant immigrant visa and a copy of the replacement Certificate of Citizenship, issued by USCIS, showing that the child became a United States citizen only nine days after her adoption. The record shows that the child would not have been able to automatically obtain a Certificate of Citizenship if she had not possessed the appropriate immigrant visa. Under these circumstances, we conclude that the foreign adoption order meets the requirements of Domestic Relations Law § 111-c(1), including the requirement that “the validity of the foreign adoption has been verified by the granting of an IR-3, IH-3, or a successor immigrant visa” (see id. § 111-c[1][b]). Indeed, to determine otherwise would defeat the intention of Domestic Relations Law § 111-c to protect adoptive families from unnecessary effort and expense. Matter of Lily, 2025 NY Slip Op 00448, Second Dept 1-29-25

Practice Point: Here, although the child’s immigrant visa has been lost, the proof demonstrated the child must have been issued the appropriate visa. Therefore the court should have issued a registration of foreign adoption and an order of adoption for the child (born in China).

 

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DESPITE THE COURT OF APPEALS RULING THAT THE INSURANCE LAW PROVISION REQUIRING UNINSURED MOTORIST COVERAGE DOES NOT APPLY TO POLICE VEHICLES, PLAINTIFF POLICE OFFICER, INJURED IN AN ACCIDENT WITH AN UNINSURED MOTORIST WHILE DRIVING HIS POLICE VEHICLE, WAS ENTITLED TO UNINSURED MOTORIST COVERAGE UNDER HIS OWN PERSONAL INSURANCE POLICY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Dowling, determined that a police officer driving a police vehicle involved in an accident with an uninsured driver can seek uninsured motorist (UM/SUM) coverage under the officer’s personal insurance policy, notwithstanding the Court of Appeals ruling that “Insurance Law § 3420(f)—providing that all ‘motor vehicle’ insurance policies must contain uninsured motorist coverage— has no application to police vehicles” … :

In Matter of State Farm Mut. Auto. Ins. Co. v Fitzgerald (25 NY3d 799), the Court of Appeals held that “a police vehicle is not a ‘motor vehicle’ covered by a [supplementary uninsured/underinsured (hereinafter SUM) motorist] endorsement under Insurance Law § 3420(f)(2)(A)” (id. at 801). This appeal requires us to address, for the first time, whether Fitzgerald and Insurance Law § 3420(f)(2)(A) preclude the principal named insured under an automobile insurance liability policy that includes a SUM endorsement from receiving SUM coverage where he or she is injured in an automobile accident with an uninsured motor vehicle while occupying a police vehicle. We conclude that the named insured is not precluded from receiving SUM coverage under those circumstances, and reverse the order appealed from. * * *

… [T]he exclusion of police vehicles from the definition of “motor vehicle” under Insurance Law § 3240(f)(1) and (2) is not determinative of this particular proceeding. Matter of Esurance Ins. Co. v Burdeynyy, 2025 NY Slip Op 00445, Second Dept 1-29-25

Practice Point: Here a police officer driving his police vehicle was involved in an accident with an uninsured motorist. Although insurers of police vehicles are not required to include uninsured motorist coverage, that did not preclude the officer from uninsured motorist coverage under his own personal policy.

 

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A MOTION FOR SUMMARY JUDGMENT MAY BE MADE ANYTIME AFTER ISSUE IS JOINED; A JUDGE CANNOT REQUIRE THE FILING OF A NOTE OF ISSUE BEFORE A SUMMARY JUDGMENT MOTION CAN BE MADE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the judge should have have denied plaintiff’s motion for summary judgment in this rear-end collision case on the ground a note of issue had not been filed:

“CPLR 3212(a) provides that any party may move for summary judgment once issue has been joined. The court may ‘set a date after which no such motion may be made’ which must be at least 30 days after the filing of a note of issue (CPLR 3212[a]). The court has no authority to require the filing of a note of issue as a prerequisite to a motion for summary judgment, since CPLR 3212(a) clearly states that a motion for summary judgment may be made once issue has been joined” … . . Accordingly, the Supreme Court should not have denied Karen Jackson’s motion on that ground. Jackson v Islam, 2025 NY Slip Op 00438, Second Dept 1-29-25

Practice Point: A motion fore summary judgment can be made anytime after issue is joined. A judge cannot require that a note of issue be filed first.

 

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A POLICE OFFICER DIRECTING TRAFFIC IS PERFORMING A GOVERNMENTAL FUNCTION REQUIRING THE EXERCISE OF DISCRETION; THE OFFICER AND THE CITY ARE THEREFORE IMMUNE FROM LIABLITY FOR A RELATED ACCIDENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the city defendants and defendant police officer (McMillan) were entitled to summary judgment in this traffic accident case. It was alleged that McMillan negligently directed the vehicle which struck plaintiff to enter the intersection. Because directing traffic is a governmental function requiring the exercise of discretion, the governmental function immunity doctrine controls:

… [T]he City defendants and McMillan established their prima facie entitlement to judgment as a matter of law dismissing the negligence cause of action insofar as asserted against them irrespective of the conflicting evidence as to whether McMillan directed the driver of the vehicle into the intersection. Under the facts as alleged, if McMillan directed the driver of the vehicle into the intersection, McMillan’s action was discretionary and he and the City defendants are thus immune from liability under governmental function immunity … . If, on the other hand, McMillan was standing on the side of the road not directing any traffic, there was no negligent act and no basis for liability for him or the City defendants … . In opposition, the plaintiff failed to raise a triable issue of fact. Hershkovitz v Brown, 2025 NY Slip Op 00436, Second Dept 1-29-25

Practice Point: A police officer directing traffic is performing a governmental function requiring the exercise of discretion. The officer and the city are therefore immune from liability for a related traffic accident.

 

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ALTHOUGH THE ABUTTING PROPERTY OWNER CAN BE LIABLE FOR A SLIP AND FALL CAUSED BY A SIDEWALK DEFECT CREATED BY THE PROPERTY OWNER’S SPECIAL USE, HERE A CURB CUT FOR A DRIVEWAY, A SUBSEQUENT PURCHASER OF THE PROPERTY WHO DOES NOT CONTINUE THE SPECIAL USE WILL NOT BE HELD LIABLE FOR THE DEFECT (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined defendant property owner was not liable for any sidewalk defects created by the prior owner’s special use (a driveway) because defendant did not continue with that special use:

… [T]he defendants established, prima facie, that the property was a one-family residence that was owner occupied, and used exclusively for residential purposes. Therefore, pursuant to section 7-210(b) of the Administrative Code of the City of New York, the defendants established, prima facie, that they were not liable for dangerous conditions on the sidewalk abutting the property, which they did not affirmatively create, voluntarily but negligently repair, or create through a special use of the sidewalk … . The defendants also met their burden of demonstrating, prima facie, that they did not affirmatively create, voluntarily but negligently repair, or create through a special use of the sidewalk, the alleged hole in curb cut which caused the plaintiff to fall.

In opposition, the plaintiff failed to raise a triable issue of fact. Even assuming, arguendo, that the plaintiff provided competent evidence that a prior owner of the property made a special use of the sidewalk as a driveway, the defendants had no obligation to repair damage to the sidewalk because they did not continue to derive any special benefit from the use of the sidewalk after they purchased the property … . Byrams v Hamilton, 2025 NY Slip Op 00419, Second Dept 1-29-25

Practice Point: In order for a property owner to be liable for a sidewalk defect created by a prior owner’s special use, the current owner must have continued that special use, not the case here.

 

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THE SCHOOL DISTRICT DID NOT ELIMINATE QUESTIONS OF FACT ABOUT WHETHER IT PROPERLY EVALUATED THE TEACHER’S BACKGROUND BEFORE HIRING HER AND WHETHER IT HAD CONSTRUCTIVE KNOWLEDGE OF THE TEACHER’S ALLEGED ABUSE OF PLAINTIFF STUDENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the defendant school district did not demonstrate it took adequate measures to the evaluate the teacher’s background and did not demonstrate it did not have constructive notice of the teacher’s alleged sexual abuse of plaintiff student:

… [T]he defendants failed to establish, prima facie, that the School District was not negligent with respect to the hiring of the teacher. The defendants’ submissions in support of their motion failed to eliminate triable issues of fact as to whether the School District took appropriate measures to evaluate the teacher’s employment and fitness at the time she was hired … .

… [T]he defendants failed to establish, prima facie, that the School District lacked constructive notice of the teacher’s abusive propensities and conduct … . In particular, given the frequency of the alleged abuse, which occurred between 50 and 100 times over the course of two school years, inter alia, in a classroom and the school parking lot during school hours, the defendants did not eliminate triable issues of fact as to whether the School District should have known of the abuse … . The defendants similarly failed to demonstrate, prima facie, that the School District’s supervision of both the teacher and the plaintiff was not negligent given that, among other things, the teacher was on “probationary” status during the relevant period, some of the incidences occurred while the plaintiff was alone with the teacher in her classroom, the teacher’s personnel file contains only a single evaluation from the school during the relevant period, and multiple former students testified at their respective depositions that the teacher’s inappropriate relationship with the plaintiff was readily apparent … . Brauner v Locust Val. Cent. Sch. Dist., 2025 NY Slip Op 00418, Second Dept 1-29-25

Practice Point: Here in this Child Victims Act case the school district did not demonstrate it properly evaluated the teacher’s background before hiring her and did not demonstrate it did not have constructive notice of the teachers’ alleged abuse of plaintiff student which allegedly occurred up to 100 times in a classroom and the school parking lot.

 

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PURSUANT TO THE VILLAGE CODE, WRITTEN NOTICE BY MAIL AND PUBLICATION IS SUFFICIENT NOTICE OF A TAX LIEN AND SALE (SECOND DEPT).

The Second Department, over a concurrence, determined defendant received adequate notice of the real property tax lien and sale:

The defendant argues that the Village should have been required to commence an in rem tax lien foreclosure proceeding. However, she concedes that, pursuant to L 1993, ch 602, § 6, Code of Village of Hempstead § 119-19, and former Real Property Tax Law § 1452 (repealed by L 1993, ch 602, § 4), “[o]pting out [of a law repealing certain sections of the Real Property Tax Law] allowed the Village of Hempstead and the tax lien purchaser to use the old law, which allowed for sale of the tax lien based on a written notice to the owner by mail and publication, and the issuance of a tax deed after service of a notice to redeem on the owner by mail.” The plaintiff correctly argues that the mailing and publication of the notice of tax lien sale and the mailing of the notice of redemption were sufficient to satisfy due process in this case … . Accordingly, the Supreme Court properly denied the defendant’s cross-motion to set aside the tax lien sale and to cancel the tax deed. BR Madison, LLC v Novas, 2025 NY Slip Op 00417, Second Dept 1-29-25

Practice Point: Here, pursuant to the Village Code, written notice by mail and publication of a tax lien and sale satisfied the property owner’s due process rights.

 

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THE INCLUSION OF ADDITIONAL INFORMATION IN THE ENVELOPE CONTAINING THE RPAPL 1304 90-DAY NOTICE OF FORECLOSURE DID NOT VIOLATE THE “SEPARATE ENVELOPE” RULE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the inclusion of additional information the the envelope with the RPAPL 1304 90-day notice of foreclosure did not invalidate the notice (in light of a recent Court of Appeals decision):

The Court of Appeals held that RPAPL 1304 does not prohibit the inclusion of additional information in the envelope that may help borrowers avoid foreclosure and is not false or misleading … .

Here, information about HAMP [Home Affordable Modification Program] was sent with the 90-day notice. This information was relevant to avoiding foreclosure and was not false or misleading. Therefore, pursuant to the Court of Appeals’ decision in Kessler ]39 NY3d 317] and the subsequent case law, the inclusion of this information with the 90-day notice did not violate the “separate envelope” requirement of RPAPL 1304(2). The plaintiff otherwise established that it sent the RPAPL 1304 notice as required by the statute. Thus, the plaintiff established, prima facie, that it complied with the notice requirements of RPAPL 1304. Wells Fargo Bank, N.A. v Smart, 2025 NY Slip Op 00476, Second Dept 1-29-25

Practice Point: The inclusion of additional information in the envelope containing the RPAPL 1304  90-day notice of foreclosure does not violate the “separate envelope” rule if the information is not misleading and may help the borrower avoid foreclosure.

 

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