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PLAINTIFF POLICE OFFICER WAS PARTICIPATING IN A TRAINING SESSION WHEN HE WAS BITTEN BY A POLICE DOG; THE TRAINING WAS A GOVERNMENTAL FUNCTION; THEREFORE THE MUNICIPALITY MUST HAVE OWED PLAINTIFF A SPECIAL DUTY TO BE LIABLE, NOT THE CASE HERE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the municipality (City of Middletown) did not owe a special duty to plaintiff police officer, who was bitten by a police dog during training: The dog handler, Officer McDonald (a City of Middletown police officer), and plaintiff were participants in training sessions conducted by the NYS Homeland Security and Emergency Services when the unleased dog bit plaintiff:

As part of the training, the police dogs were off-leash. The plaintiff, who was participating in a different training event in a different building, entered the building where the explosives detection training exercise was being held and was still in progress when he was bitten by Officer McDonald’s police dog.

When a negligence cause of action is asserted against a municipality, and the municipality was exercising a governmental function, a municipality may not be held liable unless it owed a special duty to the injured party … . Such a special duty can arise, as relevant here, where “the municipality took positive control of a known and dangerous safety condition” … . Here, the defendants established, prima facie, that they did not owe a special duty to the plaintiff. There was no evidence that Officer McDonald [the dog handler] took positive control of a known and dangerous safety condition which gave rise to the plaintiff’s injuries … . The defendants established that Officer McDonald was an attendee at a training program conducted by the New York State Homeland Security and Emergency Services at a New York State facility, that he merely participated in the training exercise, and that he took direction from the NYPD canine instructor. Mahar v McDonald, 2025 NY Slip Op 00315, Second Dept 1-22-25

Practice Point: Here the police dog handler did not have control of the unleashed dog when it bit plaintiff. The dog and the handler were participating in an explosive-detection training session conducted by a third party. Because the dog handler had not taken control of a known and dangerous safety condition (the dog) at the time plaintiff was injured, the dog handler did not owe plaintiff a special duty, a prerequisite to municipal liability.

 

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PETITIONER ADEQUATELY DESCRIBED THE RECORDS SOUGHT FROM THE POLICE DEPARTMENT AND THE DEPARTMENT DID NOT MAKE ANY EFFORT TO ASSIST PETITIONER IN IDENTIFYING THE RECORDS AS REQUIRED BY THE REGULATIONS; DENIAL OF THE PETITION REVERSED AND MATTER REMITTED (SECOND DEPT). ​

The Second Department, reversing the denial of the petition to compel the disclosure of Nassau County Police Department records and remitting the matter, noted that the applicable regulations require the Department to assist the petitioner in identifying the records sought:

… [P]etitioner made a request pursuant to the Freedom of Information Law … for certain records pertaining to the creation or maintenance of the Department’s current databases. Specifically, the petitioner requested: (1) “Any Requests for Proposals (RFPs), Requests for Qualifications (RFQs), and contracts pertaining to the creation or maintenance of the Department’s current database(s)”; (2) “The data dictionary, glossary of terms, record layout, entity relationship diagram, user guide, and any other records that describe the Department’s database(s)”; and (3) “The instruction manual or any other type of guide, distributed to law enforcement personnel dictating how they should use the database(s).”

… [T]he Department’s Legal Bureau denied the request on the ground that the petitioner did not reasonably describe the database to which he was referring. …

… [T]he petitioner’s requests were not vague or unlimited. They were circumscribed as to subject matter—the records pertaining to the creation or maintenance of the Department’s current databases—and the time period … . …

… [R]egulations enacted under FOIL by the Committee on Open Government provide that, upon receipt of a FOIL request, agency personnel are required to “assist persons seeking records to identify the records sought, if necessary, and when appropriate, indicate the manner in which the records are filed, retrieved or generated to assist persons in reasonably describing records” (21 NYCRR 1401.2[b][2]). Here, there is no evidence that, before denying the petitioner’s request, the Department made any effort to work with the petitioner to more precisely define the information desired, if possible … . Matter of Lane v County of Nassau, 2025 NY Slip Op 00220, Second Dept 1-15-24

Practice Point: Here the petitioner adequately identified the police department records at issue and the police department made no effort to assist petitioner in identifying the records as required by the applicable regulations. The FOIL petition should not have been denied.

 

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ALTHOUGH A JUDGE HAS THE DISCRETION TO PROHIBIT A PARTY FROM BRINGING ANY FURTHER PETITIONS FOR CUSTODY MODIFICATION, HERE FAMILY COURT ABUSED ITS DISCRETION; FATHER HAD NEVER FILED FRIVOLOUS PETITIONS OR FILED PETITIONS OUT OF ILL WILL OR SPITE (SECOND DEPT). ​

The Second Department, modifying Family Court, determined Family Court should not have prohibited father from filing any further custody modification petitions because father had not filed frivolous petitions or filed petitions out of ill will or spite:

Family Court improvidently exercised its discretion in prohibiting the father from filing any further modification petitions without the permission of the court. “While public policy generally mandates free access to the courts, a party may forfeit that right if he or she abuses the judicial process by engaging in meritless litigation motivated by spite or ill will” … . Here, there is no basis in the record to demonstrate that the father filed frivolous petitions or filed petitions out of ill will or spite … . Matter of Freyer v Macruari, 2025 NY Slip Op 00217, Second Dept 1-15-25

Practice Point: Family Court has the discretion to prohibit a party from bringing any future custody modification petitions, it can only do so where the party has filed frivolous motions or has filed motions out of ill will or spite.

 

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HERE THE PETITION FOR MODIFICATION OF CUSTODY SHOULD NOT HAVE BEEN DISMISSED “WITH PREJUDICE” BECAUSE A FUTURE CHANGE IN CIRCUMSTANCES MAY WARRANT MODIFICATION (SECOND DEPT).

The Second Department, modifying Family Court, determined mother’s petition for a modification of custody should not have been dismissed “with prejudice” because a future change in circumstances could warrant modification:

Family Court should not have provided that its dismissal of the mother’s petitions was with prejudice. This language could create confusion as to whether the mother could seek relief based upon a change in circumstances. Therefore, we delete that provision of the order appealed from and substitute therefor a provision dismissing the petitions without prejudice … . We note that child custody and parental access orders are not entitled to res judicata effect and are subject to modification based upon a showing of a change in circumstances. Thus, a new petition may be filed where there has been a sufficient change in circumstances since the order or judgment sought to be modified was made … . Matter of Blackman v Barge, 2025 NY Slip Op 00214, Second Dept 1-15-25

Practice Point: Here the petition for modification of custody should not have been dismissed “with prejudice” because a future change in circumstances may warrant modification.

 

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PRIVATE CONTRACT DISPUTES, UNIQUE TO THE PARTIES, ARE NOT COVERED BY GENERAL BUSINESS LAW 349 OR 35O WHICH ARE APPLICABLE ONLY TO CONSUMER-ORIENTED CONDUCT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that a General Business Law section 349 or 350 action must be based upon consumer-oriented conduct, not, as here, on a unique contract between private parties:

“To successfully assert a claim under General Business Law § 349 or § 350, a party must allege that its adversary has engaged in consumer-oriented conduct that is materially misleading, and that the party suffered injury as a result of the allegedly deceptive act or practice” … . “‘[P]arties . . . must, at the threshold, charge conduct that is consumer oriented'” … . “Private contract disputes, unique to the parties, . . . [do] not fall within the ambit of the statute” … . A “single shot transaction” … , which is “tailored to meet the purchaser’s wishes and requirements” … , “does not, without more, constitute consumer-oriented conduct for the purposes of [General Business Law §§ 349 and 350]” … . Here, the complaint … failed to sufficiently allege that the … defendants engaged in a consumer-oriented deceptive act or practice … . Katsorhis v 718 W. Beech St, LLC, 2025 NY Slip Op 00211, Second Dept 1-15-25

​Practice Point: General Business Law 349 and 350 actions must be based upon consumer-oriented conduct. Private contract disputes, unique to the parties, are not encompassed by General Business Law 349 and 350.

 

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THE SCHOOL DISTRICT’S OWN SUBMISSIONS RAISED QUESTIONS OF FACT ABOUT NEGLIGENT HIRING AND RETENTION OF A TEACHER’S AIDE AND NEGLIGENT SUPERVISION OF PLAINTIFF STUDENT IN THIS CHILD VICTIMS ACT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant school district’s own submissions raised questions of fact in this Child Victims Act case alleging sexual abuse of plaintiff student by a teacher’s aide:

… [T]he defendants failed to establish, prima facie, that the school district was entitled to judgment as a matter of law dismissing the causes of action alleging negligence and negligent supervision and retention insofar as asserted against … . In support of their motion, the defendants submitted, among other things, transcripts of the deposition testimony of the plaintiff and that of his third grade teacher, who served as the direct supervisor of the teacher’s aide. The plaintiff testified that the teacher’s aide singled him out for attention in the classroom and hugged him in the hallways … . While such conduct, without more, might not have been enough to warrant denial of the defendants’ motion, the plaintiff also testified that, upon dismissal from school, the teacher’s aide frequently walked him to her car in the presence of other staff members and then drove him to her home, where the alleged sexual abuse primarily occurred. The third grade teacher also testified that it was “[in]appropriate” for teachers and other school district employees to drive students in their personal vehicles or take students to their homes, conduct which the teacher also believed violated school policies … .

Therefore, the defendants’ own submissions failed to eliminate triable issues of fact as to whether the school district “had notice of the potential for harm to the . . . plaintiff such that its alleged negligence in supervising and retaining [the teacher’s aide] placed [her] in a position to cause foreseeable harm” … . Kastel v Patchogue-Medford Union Free Sch. Dist., 2025 NY Slip Op 00210, Second Dept 1-15-25

Practice Point: The criteria for a school district’s liability for negligent hiring and retention and negligent supervision in a Child Victims Act case concisely laid out.

 

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THE JUDGE DID NOT PROVIDE AN ADEQUATE STATEMENT OF THE REASONS FOR CONDUCTING THE TRIAL IN DEFENDANT’S ABSENCE; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s convictions and ordering a new trial, determined the judge failed to provide an adequate statement of the reasons for conduction the trial in defendant’s absence:

… [T]he defendant is entitled to a new trial because the County Court improperly conducted the trial in the defendant’s absence. “Before proceeding in [a] defendant’s absence, the court [must make an] inquiry and recite[ ] on the record the facts and reasons it relied upon in determining that [the] defendant’s absence was deliberate” … . Here, the court failed to provide an adequate statement of reasons or bases for its determination that the defendant’s absence from the trial was deliberate. Although the court stated that it was basing its determination on the defendant’s “history” and “conduct within the last few days,” it failed to detail the history and conduct upon which its determination was based … . People v Kerr, 2025 NY Slip Op 00236, Second Dept 1-15-25

Practice Point: Before a judge can conduct a trial in a defendant’s absence, an adequate statement of the reasons must be in the record. If the statement is inadequate a new trial will be necessary.

 

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COUNSELING OR TREATMENT SHOULD NOT BE MADE A CONDITION FOR ANY FUTURE MODIFICATION OF PARENTAL ACCESS; HOWEVER COUNSELING AND TREATMENT MAY BE MADE A COMPONENT OF CURRENT PARENTAL ACCESS (SECOND DEPT).

The Second Department, modifying Family Court, determined the court should not have made counseling or treatment a condition for any future modification of parental access, but Family Court appropriately directed mother to submit to treatment as a component of her current parental access:

… [A] “court deciding a custody proceeding may properly direct a party to submit to counseling or treatment as a component of a visitation or custody order” … . “However, a court may not direct that a parent undergo counseling or treatment as a condition of future parental access or reapplication for parental access rights” … . Here, the Family Court should not have conditioned any future modification of the mother’s parental access with the child, in effect, upon her enrollment in mental health treatment and her resulting improvement in mental status, emotional regulation, psychological functioning, and empathy for the child … . Nonetheless, to the extent the court directed the mother to submit to such treatment as a component of her parental access, this was proper … . Matter of Nathaniel v Mauvais, 2025 NY Slip Op 00223, Second Dept 1-15-257

Practice Point: Counseling or treatment can be made a component of current parental access but cannot be made a condition for any future modification of parental access.

 

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PLAINTIFF VIOLATED THE VEHICLE AND TRAFFIC LAW BY MAKING A LEFT TURN DIRECTLY INTO DEFENDANT’S PATH OF TRAVEL WHEN DEFENDANT HAD A GREEN LIGHT; PLAINTIFF’S TESTIMONY THAT DEFENDANT WAS SPEEDING WAS NOT ENOUGH TO RAISE A QUESTION OF FACT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant driver was entitled to summary judgment in this intersection traffic accident case. Defendant had the right-of-way (green light) when plaintiff made a left turn directly into defendant’s path of travel. Plaintiff’s testimony that defendant was speeding was not enough to raise a question of fact:

“A violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se” … . “Vehicle and Traffic Law § 1141 provides that the driver of a vehicle intending to turn to the left within an intersection . . . shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard. Further, Vehicle and Traffic Law § 1163(a) provides that no person shall turn a vehicle at an intersection . . . until such movement can be made with reasonable safety” … . “Although a driver with the right-of-way is entitled to anticipate that the other driver will obey the traffic laws requiring him or her to yield, a driver is bound to see what is there to be seen through the proper use of his or her senses and is negligent for failure to do so” … . However, “a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” … . * * *

… [P]laintiff’s contention that the defendant was operating his vehicle at an excessive speed “is speculative and unsupported by any competent evidence” … . The defendant testified at his deposition that he was driving below the speed limit, and the plaintiff admitted during her deposition that she did not see the defendant’s vehicle prior to the collision … . Although evidence regarding the force of a collision or the manner in which a vehicle moved as a result thereof may be sufficient to create an inference that a driver was speeding in some circumstances … , the plaintiff’s deposition testimony was not sufficient to create such an inference … . Further, the plaintiff’s “contention[ ] that [the defendant] could have avoided the accident . . . w[as] speculative and unsupported by the record … . Morante v Blaney, 2025 NY Slip Op 00086, Second Dept 1-8-25

Practice Point: Although proof that defendant driver with the right-of-way was speeding when the plaintiff driver violated the Vehicle and Traffic Law by making a left turn may raise a question of fact, here plaintiff driver’s testimony standing alone, claiming defendant was speeding, was not enough to raise a question of fact.

 

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THE DEFENDANT DID NOT CONSENT, IN A WRITING SIGNED IN OPEN COURT, TO THE SUBSTITUTION OF AN ALTERNATE JUROR AFTER DELIBERATIONS HAD BEGUN REQUIRING A NEW TRIAL; THE SHOWUP IDENTIFICATION OF DEFENDANT WAS UNREASONABLE AND UNDULY SUGGESTIVE REQUIRING DISMISSAL OF THE COUNTS RELATED TO ONE OF THE TWO ROBBERIES (SECOND DEPT). ​

The Second Department, reversing one of defendant’s robbery convictions and ordering a new trial, determined (1) a new trial is required because the judge did not obtain defendant’s written and signed consent to the substitution of an alternate juror after deliberations had begun, and (2) the showup identification of the defendant was unreasonable and unduly suggestive, requiring dismissal of the counts relating to one of the two robberies (there was no identification testimony at the trial):

“Under CPL 270.35, once the jury has commenced deliberations an alternate juror may not be substituted for a regular juror unless the defendant consents to the replacement . . . in writing . . . signed by the defendant in person in open court in the presence of the court” … . * * *

… [T]the People failed to establish that the showup identification was conducted in close temporal proximity to the crime … . Further, there was no unbroken chain of events or exigent circumstances that justified the showup identification, as the defendant was already under arrest for the second robbery … .

… [T]he People failed to establish that the showup identification was not unduly suggestive. Here, prior to the showup identification, the complainant was informed by the police officers that they had someone in custody who matched the description provided by the complainant. During the showup identification, the defendant was handcuffed with his hands behind his back and there were one to two police officers near the defendant as he was treated by emergency medical service providers. While these factors alone do not necessarily render a showup identification unduly suggestive, when viewed cumulatively with other factors, including that the officers informed the complainant that the defendant committed another crime around the corner, that the defendant’s face was severely bruised and bleeding, and that it was “an active crime scene” with several surrounding officers dealing with witnesses “[y]elling and screaming,” the showup identification was unduly suggestive … . People v Simon, 2025 NY Slip Op 00117, Second Dept 1-8-25

Practice Point: A defendant’s consent to the substitution of an alternate juror after deliberations have begun must be in writing signed in open court.

Practice Point: Consult this decision for an example of a showup identification deemed unreasonable and unduly suggestive.

 

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