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HERE THE OWNER AND GENERAL CONTRACTOR DEMONSTRATED THEY DID NOT EXERCISE SUPERVISION AND CONTROL OVER THE WORK PLAINTIFF WAS DOING WHEN INJURED; THEREFORE THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION AGAINST THEM SHOULD HAVE BEEN DISMISSED; THE COURT NOTED THAT THE RIGHT TO GENERALLY SUPERVISE THE WORK OR TO STOP THE WORK FOR SAFETY VIOLATIONS DOES NOT CONSTITUTE “SUPERVISION AND CONTROL” OF THE WORK WITHIN THE MEANING OF LABOR LAW 200 OR COMMON LAW NEGLIGENCE (SECOND DEPT).

The Second Department, dismissing the Labor Law 200 and negligence causes of action against the owner and general contractor, noted that the right to generally supervise the work, to stop the work for a safety violation or to ensure compliance with safety regulations does not amount to the level of supervision and control of the work for liability under Labor Law 200. Plaintiff worked for a subcontractor and was injured while attempting to guide a heavy concrete object as it was lowered into a hole by a crane:

“The right to generally supervise the work, to stop the work if a safety violation is noted, or to ensure compliance with safety regulations does not amount to the supervision and control of the work necessary to impose liability on an owner or a general contractor pursuant to Labor Law § 200” … . Here, … defendants established … that the alleged incident arose from work performed over which they did not exercise supervision or control … . Kelly v RBSL Realty, LLC, 2025 NY Slip Op 07291, Second Dept 12-24-25

Practice Point: In the context of the requirements for Labor Law 200 and common law negligence liability for construction accidents, the owner’s and/or general contractor’s right to generally supervise the work and/or to stop the work for safety violations does not amount to “supervision and control” of the work.​

 

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A CERTIFICATE OF INURANCE NAMING A PARTY AS AN ADDITIONAL INSURED IS EVIDENCE THAT THERE IS A CONTRACT TO THAT EFFECT, BUT IT IS NOT CONCLUSIVE PROOF OF THE EXISTENCE OF A CONTRACT AND WILL NOT SUPPORT SUMMARY JUDGMENT ON THE ISSUE (SECOND DEPT).

The Second Department noted that identifying a party as an additional insured on a certificate of insurance is evidence of a contract naming that party as an additional insured, but only the contract itself constitutes definitive proof of additional-insured status:

“A certificate of insurance is evidence of a contract for insurance, but is not conclusive proof that the contract exists and not, in and of itself, a contract to insure” … . [There was no proof of] a specific agreement … to name [plaintiff] School District as an additional insured. Accordingly, the Supreme Court properly denied that branch of the School District’s motion which was for summary judgment declaring that One Beacon is obligated to defend and indemnify it as an additional insured in the underlying action … . Island Trees Union Free Sch. Dist. v A 1 Constr. Serv., Inc, 2025 NY Slip Op 07289, Second Dept 12-24-25

Practice Point: A certificate of insurance naming a party as an additional insured is evidence there is a contract to that effect, but, without the contract, the certificate will not support summary judgment on the issue.​

 

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DEFENDANTS’ ATTENDANCE AT A MANDATORY SETTLEMENT CONFERENCE (CPLR 3408) IN THIS FORECLOSURE CASE DID NOT CONSTITUTE AN “APPEARANCE” IN THE ACTION; THEREFORE DEFENDANTS WERE NOT ENTITLED TO FIVE DAYS NOTICE (PURSUANT TO CPLR 3215 (G)) RE: PLAINTIFF’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Duffy, in a matter of first impression, determined defendants’ attendance at a mandatory settlement conference in this foreclosure action did not constitute an “appearance” such that defendants were entitled to five-days notice of an application for leave to enter a default judgment:

The issue on appeal, an issue of first impression for this Court, is whether a party’s attendance at a mandatory settlement conference pursuant to CPLR 3408 constitutes an appearance by a party for the purpose of CPLR 3215(g), which provides, among other things, that a party who has appeared in an action is entitled to at least five days’ notice of an application for leave to enter a default judgment. * * * Supreme Court properly determined that the defendants had not appeared in the action and, thus, the five-day notice provision set forth in CPLR 3215(g) was not applicable with respect to the plaintiff’s motion, inter alia, for leave to enter a default judgment against the defendants. HSBC Bank USA, N.A. v Saris, 2025 NY Slip Op 07287, Second Dept 12-24-25

Practice Point: A defendant’s attendance at a mandatory settlement conference (CPLR 3408) is not an “appearance” in the action and does not entitle defendant to five days notice (pursuant to CPLR 3215 (g)) re: plaintiff’s motion for leave to enter a default judgment.

 

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IN THIS CHILD VICTIMS ACT CASE, DEFENDANT COUNTY, WHICH HAD ASSUMED CUSTODY OF PLAINTIFF FOSTER CHILD, PLACED PLAINTIFF IN DEFENDANT SCHOOL WHERE SHE ALLEGEDLY WAS SEXUALLY ABUSED BY A TEACHER DAILY FOR SIX MONTHS; THE ALLEGED FREQUENCY OF THE ABUSE RAISED A QUESTION OF FACT WHETHER DEFENDANTS HAD CONSTRUCTIVE NOTICE OF IT (SECOND DEPT).

he Second Department, reversing Supreme Court, determined this Child Victims Act (CPLR 214-g) action against the county and a school should not have been dismissed. The county had assumed custody over plaintiff, a foster child, and placed her in defendant school. Plaintiff alleged she was sexually abused by a teacher daily for six months. The alleged frequency of the abuse raised a question of fact whether defendants should have known of the abuse (constructive notice):

“By assuming legal custody over [a] foster child, the applicable government official steps in as the sole legal authority responsible for determining who has daily control over the child’s life” … . Therefore, “a municipality owes a duty to a foster child over whom it has assumed legal custody to guard the child from foreseeable risks of harm arising from the child’s placement with the municipality’s choice of foster [home]” … . “In order to find that a child care agency breached its duty to adequately supervise the children entrusted to its care, a plaintiff must establish that the agency had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably have been anticipated” … . “Where the complaint alleges negligent supervision due to injuries related to an individual’s [*2]intentional acts, the plaintiff generally must allege that the entity knew or should have known of the individual’s propensity to engage in such conduct, such that the individual’s acts could be anticipated or were foreseeable” … . M.F. v Putnam County, 2025 NY Slip Op 07283, Second Dept 12-24-25

Practice Point: In Child Victims Act cases alleging sexual abuse by a teacher, courts are finding that allegations of frequent abuse raise a question of fact about whether defendants should have been aware of it.

 

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A LAWSUIT ALLEGING NONCONSENSUAL SEXUAL TOUCHING PURSUANT TO THE ADULT SURVIVORS ACT (CPLR 214-J) NEED NOT ALLEGE PLAINTIFF’S INTIMATE PARTS WERE TOUCHED BY THE DEFENDANT TO STATE A CAUSE OF ACTION; IT IS ENOUGH THAT THE COMPLAINT ALLEGE PLAINTIFF WAS TOUCHED UNDER CIRCUMSTANCES WHICH AFFORDED THE DEFENDANT SEXUAL GRATIFICATION (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Wilson, in a matter of first impression, determined that a complaint under the Adult Survivors Act (CPLR 214-j) need not allege the defendant touched plaintiff’s intimate parts to state a cause of action for nonconsensual sexual touching. Here defendant, a doctor, allegedly touched plaintiff’s lower back while she was undressed and standing on a step stool facing away from the defendant to determine whether her kidneys were causing lower back pain. Although defendant did not touch plaintiff’s intimate parts, it was alleged the examination was motivated by sexual gratification:

The Adult Survivors Act (ASA) (CPLR 214-j) is a statute that permits adult survivors of sexual abuse to revive otherwise time-barred civil actions against alleged abusers arising from, among other things, conduct that would constitute a sexual offense under Penal Law article 130. The offense of forcible touching under Penal Law § 130.52(1) requires that there be a nonconsensual touching of “sexual or other intimate parts” of another person for the purpose of degradation or abuse of such person or for the purpose of gratifying the actor’s sexual desire. The offense of sexual abuse in the third degree under Penal Law § 130.55 requires nonconsensual “sexual contact.” This appeal provides our Court with an opportunity to address an issue of first impression in this judicial department regarding how narrow, or broad, we should construe the elemental concepts of sexual touching and sexual contact under the ASA. We hold that where, as here, the alleged nonconsensual touching or sexual contact was to a part of the body other than an anatomically sexual part, in the classic sense, these Penal Law offenses may still qualify as a predicate for an action pursuant to the ASA if the broader facts, manner, and circumstances of the touching or sexual contact involve intimacy or the alleged sexual gratification of the abuser. Aguilar v Wishner, 2025 NY Slip Op 07265, Second Dept 12-24-25

Practice Point: Here the complaint alleged defendant, a doctor, touched plaintiff’s lower back during a physical examination under circumstances which afforded defendant sexual gratification. That was sufficient to state a cause of action under the Adult Survivor’s Act. Under the Act, a plaintiff need not allege defendant touched plaintiff’s intimate parts.

 

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THE FACT THAT THE ARBITRATOR MADE ERRORS OF LAW DID NOT AFFECT THE VALIDITY OF THE AWARD BECAUSE THERE WAS A RATIONAL BASIS FOR THE RULING; ARBITRATION AWARDS ARE LARGELY UNREVIEWABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the fact that the arbitrator in this no-fault insurance dispute made errors of law does not negate the validity of the arbitrator’s ruling. As long as the arbitrator’s award has a rational basis it is largely unreviewable:

“[A]n arbitrator’s rulings, unlike a trial court’s, are largely unreviewable” … . “A court reviewing the award [*2]of a master arbitrator is limited to the grounds set forth in CPLR article 75” … . Significantly, a master arbitrator’s determination is not subject to vacatur by the courts on the basis of an error of law, including, “‘the incorrect application of a rule of substantive law,'” unless the master arbitrator’s determination is irrational … .

Here, regardless of any errors of law the arbitrator and master arbitrator made regarding burdens of proof, the master arbitrator’s determination to affirm the … award to the provider was rationally based on the conclusion that [the] minor delay in providing the insurer with notice of the accident was reasonably justified because [the injured party] was a passenger in the vehicle involved in the accident and, thus, was not making a claim to her own insurance company (see 11 NYCRR 65-3.5[l]). Because the master arbitrator’s affirmance of the … award had a rational basis, and “‘[i]t is not for the court to decide whether the master arbitrator erred in applying the applicable law,'” the petition to vacate the master arbitrator’s award should have been denied and the master arbitrator’s award confirmed … . Matter of American Tr. Ins. Co. v Atlantic Med. Care, P.C., 2025 NY Slip Op 07297, Second Dept 12-24-25

Practice Point: Arbitration awards are largely unreviewable by the courts. Errors of law are ignored if there is a rational basis for the ruling.

 

THE PEOPLE DID NOT PROVE A VERMONT OFFENSE WAS EQUIVALENT TO A NEW YORK VIOLENT FELONY OFFENSE; THEREFORE THE PERSISTENT VIOLENT FELONY ADJUDICATION WAS VACATED (SECOND DEPT).

The Second Department, vacating defendant’s persistent violent felony offender adjudication, determined the People did not prove that a Vermont assault and robbery offense was the equivalent to a New York violent felony offense:

While the defendant admitted at sentencing that he was the person convicted of two prior felonies … , the People failed to satisfy their burden of establishing that the defendant was convicted of an offense in a foreign jurisdiction that is equivalent to a violent felony in New York … . The People failed to demonstrate that the Vermont offense of assault and robbery with a dangerous weapon … is equivalent to a New York criminal offense designated as a violent felony … . Accordingly, we modify the judgment by vacating the defendant’s adjudication as a persistent violent felony offender and the sentences imposed thereon, and we remit the matter to the Supreme Court … for resentencing … . People v Parris, 2025 NY Slip Op 07028, Second Dept 12-17-25

Practice Point: If a foreign conviction is the basis of a persistent violent felony offender adjudication, the People must prove the foreign offense is the equivalent of a New York violent felony. If the People fail to prove the equivalence the adjudication will be vacated on appeal.

 

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HERE SUPREME COURT CORRECTLY REFUSED TO VACATE THE DEFAULT JUDGMENT IN THIS PERSONAL INJURY CASE; BUT THE SECOND DEPARTMENT VACATED THE $385,000 INQUEST-JUDGMENT BECAUSE PLAINTIFF’S TESTIMONY DID NOT SUFFICIENTLY DEMONSTRATE THE EXTENT OF THE INJURIES (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined Supreme Court correctly denied defendant’s motion to vacate a default judgment in a personal injury case because she failed to provide a reasonable excuse. Plaintiff alleged he stepped in a hole on defendant’s property, twisted his foot and fell. But the $385,000 damages judgment was vacated by the Second Department because plaintiff’s testimony at the inquest was deemed insufficient to demonstrate the extent of the injuries. A new inquest was ordered:

… [A]lthough this Court is not relieving the defendant of her default, “[a]n unwarranted and excessive award after inquest will not be sustained, as to do otherwise ‘would be tantamount to granting the plaintiffs an open season at the expense of a defaulting defendant'” … . Here, the plaintiff’s vague testimony at the inquest was insufficient to determine to what extent the plaintiff’s injuries were attributable to the subject accident and, therefore, whether the amount awarded was warranted. Thus, under the circumstances of this case, the Supreme Court should have granted that branch of the defendant’s motion which was to vacate the judgment, and we remit the matter to the Supreme Court, Nassau County, for a new inquest on the issue of damages, and for the entry of an appropriate amended judgment thereafter … . Albano v Roehrig, 2025 NY Slip Op 06839, Second Dept 12-10-25

Practice Point: Despite losing a motion to vacate a default judgment, a defendant may still successfully move to vacate a judgment awarded after an inquest on the ground the evidence offered at the inquest did not sufficiently demonstrate the extent of the plaintiff’s injuries.

 

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WHEN THE JUDGE’S LAW CLERK SPOKE TO THE JURORS ABOUT A JURY NOTE WHILE THE JURORS WERE DELIBERATING, THE CLERK DISCUSSED CONCEPTS OF NEGLIGENCE, FAULT AND CERTAIN FACTS OF THE CASE; PLAINTIFFS’ MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court and ordering a new trial after a defense verdict, determined that the law clerk’s discussion with the jurors while they were deliberating, during which concepts of negligence and fault and certain facts were discussed, constituted interference with the deliberations and usurpation of the role of the court. The motion to set aside the verdict should have been granted:

Following the verdict, the plaintiffs moved pursuant to CPLR 4404(a) to set aside the jury verdict in favor of the defendant on the issue of liability in the interest of justice and for a new trial. In an affirmation in support of the motion, the plaintiffs’ counsel stated that he had learned, after the jury was discharged, that when the clerk went to speak to the jurors about writing the actual question on the form, the clerk improperly communicated with the jurors in a way that went beyond the Supreme Court’s instructions. In further support of their motion, the plaintiffs submitted an affidavit from a former juror (hereinafter the first juror) who averred, among other things, that the clerk had discussed with the jurors the concepts of negligence and fault, as well as certain facts about the case. The first juror averred that the clerk was in the jury room with the jurors for approximately three to five minutes, and that following that discussion, the jurors “did not feel it [was] necessary to submit further questions to the Court.” * * *

“A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise” … . “Litigants are entitled, as a matter of law, to a fair trial free from improper comments by counsel or the trial court” … . “The interest of justice thus requires a court to order a new trial where comments [have] deprived [a] party of a fair trial or unduly influenced a jury” … .

… [T]he clerk’s conduct cannot be found to be harmless. By offering opinions and/or explanations on the meaning of the legal concepts at issue in the trial, the clerk impermissibly interfered in the jury’s deliberations and usurped the role of the court to, in consultation with counsel, instruct the jurors on the law applicable to the facts. Saporito-Elliott v United Skates of Am., Inc., 2025 NY Slip Op 06886, Second Dept 12-10-25

Practice Point: The law clerk’s discussion with the deliberating jurors about concepts of negligence, fault and certain facts of the case interfered with the deliberations and usurped the role of the court. The verdict, therefore, must be set aside.

 

HERE THE SUBPOENAS SEEKING DISCOVERY FROM A NONPARTY WERE DEFECTIVE IN THAT THEY DID NOT EXPLAIN THE CIRCUMSTANCES OR REASONS FOR THE REQUESTED DISCLOSURE; THEREFORE THE MOTION TO QUASH THE SUBPOENAS SHOULD HAVE BEEN GRANTED WITHOUT ANY NEED ON THE PART OF THE MOVANT TO DEMONSTRATE THE SOUGHT DISCLOSURE IS IRRELEVANT OR FUTILE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the subpoenas seeking discovery from a nonparty were defective, therefore the motion to quash the subpoenas should have been granted:

Pursuant to CPLR 3101(a)(4), a party may obtain discovery from a nonparty of “matter material and necessary in the prosecution or defense of an action” in possession of a nonparty, providing the nonparty is apprised of the “circumstances or reasons such disclosure is sought or required” … . “The notice requirement of CPLR 3101(a)(4) ‘obligates the subpoenaing party to state, either on the face of the subpoena or in a notice accompanying it, the circumstances or reasons such disclosure is sought or required'” … . “Once that is satisfied, it is then the burden of the person moving to quash a subpoena to establish either that the requested disclosure ‘is utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious'” … .

Here, the subpoenas were defective, since neither the subpoenas nor any accompanying documents set forth “the circumstances or reasons [the] disclosure is sought or required” (CPLR 3101[a][4] … . Ruppert v Ruppert, 2025 NY Slip Op 06884, Second Dept 12-10-25

Practice Point: A subpoena seeking disclosure from a nonparty must meet the requirements of CPLR 3101(a)(4) by including an explanation of the circumstances or reasons for the disclosure. If that information is not provided, the subpoena is defective and must be quashed on that ground.

 

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