You are here: / Second Department

Tag Archive for: Second Department

, ,

STANDING OUTSIDE A VEHICLE AND REACHING INSIDE IS NOT “OCCUPYING” THE VEHICLE SUCH THAT THE AUTOMOBILE PRESUMPTION OF POSSESSION OF THE CONTENTS OF A VEHICLE CAN BE CHARGED TO THE JURY (SECOND DEPT). ​

The Second Department, reversing defendant’s possession of a weapon conviction, determined the judge should not have charged the jury with the automobile presumption which ascribes possession of contraband inside a vehicle to the occupants of the vehicle. The evidence did not support the allegation that defendant “occupied” the vehicle. He was seen standing outside the vehicle and reaching inside through an open window. In addition the police officers should have been allowed to narrate the video saying the defendant could be seen inside the vehicle and reaching into the back seat:

… [T]he People admitted a surveillance video, which showed that the defendant briefly leaned his upper body through the open rear passenger side door of the Lincoln Navigator while standing on the vehicle’s running board. However, the video reflected that the defendant never lifted his feet from the running board to climb into the Lincoln Navigator or take a seat inside the vehicle … . Under the circumstances presented, the People’s contention that the defendant “occup[ied]” the vehicle within the meaning of Penal Law § 265.15(3) is without merit. … Supreme Court erred in charging the jury with respect to the automobile presumption. People v Lewis, 2024 NY Slip Op 01728, Second Dept 3-27-24

Practice Point: The automobile presumption of possession of the contents of a vehicle by the occupants of the vehicle does not apply to a person standing outside a vehicle and reaching inside through a window.

 

, ,

EVEN THOUGH MOTHER DID NOT APPEAR IN THIS TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING, FAMILY COURT SHOULD NOT HAVE DISPENSED WITH THE DISPOSITIONAL HEARING WITHOUT THE CONSENT OF THE PARTIES (SECOND DEPT).

The Second Department, reversing Family Court, determined the judge in this termination-of-parental-rights proceeding in which mother did not appear should not have dispensed with the dispositional hearing without the consent of thee parties:

The petitioner commenced this proceeding pursuant to Social Services Law § 384-b to terminate the mother’s parental rights to the subject child on the ground of permanent neglect. The mother failed to appear at a scheduled court date, and the Family Court scheduled an inquest, which was conducted in the mother’s absence. In an order of fact-finding and disposition …, the court found that the mother permanently neglected the child, stated that it had sufficient information to issue a dispositional order without any further hearing, and suspended judgment for a period of one year. The petitioner appeals from the dispositional portion of the order.

The Family Court should not have dispensed with the dispositional hearing in the absence of the consent of the parties (see Family Ct Act §§ 625[a]; 631 …). Accordingly, we remit the matter to the Family Court, Dutchess County, for a dispositional hearing and a determination thereafter. Matter of Troy S.H. (Tianna S.S.), 2024 NY Slip Op 01711, Second Dept 3-27-24

Practice Point: Even though mother did not appear in this termination-of-parental-rights proceeding, the judge should not have dispensed with the dispositional hearing without the consent of the parties.

 

, , , ,

THE DEFENDANT SCHOOL DID NOT ELIMINATE TRIABLE QUESTIONS OF FACT ABOUT WHETHER IT HAD CONSTRUCTIVE NOTICE OF THE TEACHER’S ABUSIVE PROPENSITIES; THE NEGLIGENT HIRING AND NEGLIGENT SUPERVISION CAUSES OF ACTION IN THIS CHILD VICTIMS ACT CASE SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court in this Child Victims Act case, determined the negligent hiring and negligent supervision causes of action against defendant school stemming from a teacher’s alleged abuse of plaintiff-student should not have been dismissed. There was a question of fact about whether the school district had constructive notice of the teacher’s abusive propensities:

… [G]iven the frequency of the alleged abuse, which occurred over a three-year period, and always occurred inside the same classroom during the school day, the defendants did not eliminate triable issues of fact as to whether they should have known of the abuse … . Additionally, the defendants failed to eliminate triable issues of fact as to whether their supervision of the teacher or the plaintiff was not negligent, in light of, among other things, the teacher was on “probationary” status during the relevant period, the special education lessons during which the alleged abuse occurred were one-on-one and behind closed doors, the plaintiff testified at his deposition that the school principal “never came in” or “checked” on him during the lessons, and only a single observation report from Columbus Avenue Elementary School is available in the teacher’s employment file during the relevant period. MCVAWCD-DOE v Columbus Ave. Elementary Sch., 2024 NY Slip Op 01703, Second Dept 3-27-24

Practice Point: Here the defendant school did not eliminate questions of fact about whether it had constructive notice of the teacher’s abusive propensities in this Child Victims Act case. The alleged abuse took place often behind closed doors when the teacher, who was on probation, was alone with the plaintiff.

 

,

THE INABILITY TO IDENTIFY THE SLIPPERY SUBSTANCE WHICH CAUSED PLAINTIFF’S SLIP AND FALL WAS FATAL TO THE LAWSUIT; ALLEGING THE FLOOR WAS SHINY OR SLIPPERY IS NOT ENOUGH, CRITERIA EXPLAINED IN SOME DEPTH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff’s inability to identify the cause of her slip and fall was fatal to the lawsuit. Evidence that the floor was shiny or slippery was not enough to survive a summary judgment motion:

The plaintiff expressly testified that she did not know what caused her to fall … , nor did she recall observing garbage or liquid on the floor, either before or after her fall … .

… The plaintiff’s affidavit and additional portions of her deposition testimony submitted in opposition to the [summary judgment] motion merely confirmed that she fell as a result of a slippery substance that she could not identify. To the extent that the plaintiff’s two witnesses identified the cause of the fall in their affidavits without engaging in speculation … , this evidence was insufficient to raise a triable issue of fact. Although each witness averred that the plaintiff’s fall may have been caused by the “shiny” and “slippery” nature of the floor, “the mere fact that a smooth floor may be shiny or slippery,” without more, “does not support a cause of action to recover damages for negligence, nor does it give rise to an inference of negligence” … . Alvarez v Staten Is. R.T. Operating Auth., 2024 NY Slip Op 01695, Second Dept 3-27-24

Practice Point: Here plaintiff’s inability to identify the slippery substance which caused the fall required summary judgment in defendant’s favor. The fact that a floor is shiny or slippery is not enough. The relevant proof requirements are laid out in detail.

 

,

COURTS HAVE THE POWER TO LIMIT THE REACH OF OVERLY BROAD RESTRICTIVE COVENANTS IN COMMERCIAL CONTRACTS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connelly, affirming Supreme Court, discussed in detail the courts’ power to limit the reach of overly broad restrictive covenants in commercial contracts. Here the plaintiff and defendant collaborated for decades in the design and manufacture of fabrics to be used in solar shades. Upon terminating the contractual arrangement, the question became whether the restrictive covenants in the contract are enforceable. Because the opinion addresses the issues in the context of motions to dismiss, most of the findings were preliminary and must await a more complete record. But the Second Department did conclude courts have the power to limit the enforcement of overly broad restrictive covenants in commercial contracts, short of re-writing the contract:

This appeal requires us to analyze the factors to consider when evaluating whether a restrictive covenant in an ordinary commercial contract is enforceable. Although there is a dearth of New York state case law on this issue, we agree with those courts that have analyzed these types of covenants under a rule of reason, considering (1) whether the covenant protects a legitimate business interest; (2) the reasonableness of the geographic scope and temporal duration; and (3) the degree of hardship upon the party against whom the covenant is enforced.

This appeal also requires us to consider whether courts have the power to sever and grant partial enforcement of overly broad restrictive covenants in ordinary commercial contracts. Because the Court of Appeals has held that courts have such power with regard to overly broad restrictive covenants in employment agreements (see BDO Seidman v Hirshberg, 93 NY2d 382, 395), we similarly hold that courts have the power to sever and grant partial enforcement of overly broad restrictive covenants in ordinary commercial contracts and may do so under the appropriate circumstances. Twitchell Tech. Prods., LLC v Mechoshade Sys., LLC, 2024 NY Slip Op 01744, Second Dept 3-27-24

Practice Point: Courts have to power to limit the reach of overly broad restrictive covenants in commercial contracts, criteria explained in depth.

 

,

PLAINTIFF STUDENT WAS INJURED WHEN SHE COLLIDED WITH ANOTHER STUDENT DURING A SUPERVISED GAME; THE GAME WAS DEEMED AGE-APPROPRIATE AND THE SUPERVISION WAS DEEMED ADEQUATE; THE SCHOOL DISTRICT SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the defendant school district was entitled to summary judgment in this negligent supervision case. Plaintiff student was injured when she collided with another student during a supervised game which required running to pick up an object and running back to the finish line. The game was deemed to be age-appropriate and the supervision was deemed adequate:

… [T]he defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that it provided adequate supervision and instruction during the infant plaintiff’s gym class … . The infant plaintiff and her classmates were instructed “that there was to be no . . . tackling involved” in the game … . Since the inadvertent collision occurred quickly and without warning, the defendant demonstrated that “more intense supervision would not have prevented the spontaneous and accidental collision of the two children” … . S.T. v Island Park Union Free Sch. Dist., 2024 NY Slip Op 01743, Second Dept 3-27-24

Practice Point: Where a game is age-appropriate, the supervision is adequate, and the student’s injury was inadvertent and occurred suddenly without warning, the school will not be liable under a negligent supervision theory.

 

, ,

THE JUDGE’S SUA SPONTE DISMISSAL OF THE COMPLAINT FOR FAILURE TO COMPLY WITH A STATUS CONFERENCE ORDER REVERSED; A JUDGE’S POWER TO DISMISS A COMPLAINT, SUA SPONTE, IS LIMITED AND SHOULD BE USED SPARINGLY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s failure to comply with a status conference order in this foreclosure action was not an adequate ground for the judge’s sua sponte dismissal of the complaint:

“‘[A] court’s power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal'” … .

Here, the plaintiff’s failure to comply with the directive of the status conference order that it file an application for an order of reference by April 1, 2015, was not a sufficient ground upon which to dismiss the complaint … .

… [D]ismissal of the action also was not warranted based on the plaintiff’s alleged neglect to prosecute. “A court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met” … . HSBC Bank USA, NA v Sung Eun Oh, 2024 NY Slip Op 01700, Second Dept 3-27-24

Practice Point: A judge’s power to dismiss a complaint sua sponte is limited and should be used sparingly. To dismiss a complaint pursuant to CPLR 3216, all the statutory criterial must be met. Here dismissal was not warranted.

 

, ,

PLAINTIFF WAS INJURED AT JFK AIRPORT, OWNED BY THE PORT AUTHORITY OF NY & NJ, BY A FORKLIFT WHICH WAS BACKING UP; THE FACT THAT REAR-VIEW MIRRORS WERE OPTIONAL WAS NOT A DESIGN DEFECT, CRITERIA EXPLAINED; THE PORT AUTHORITY WAS IMMUNE FROM A NEGLIGENCE ACTION ALLEGING FAILURE TO INSPECT THE FORKLIFT, CRITERIA EXLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court in this forklift-accident case, determined the fact that the rear-view mirrors for the forklift were optional was not a design defect, and the landlord, the Port Authority, was immune from the negligence action alleging a failure to properly inspect the forklift:

… Unicarriers [defendant forklift manufacturer] established … the plaintiff’s employer was thoroughly knowledgeable about forklifts and knew that mirrors were available, since it maintained more than 100 forklifts in operation in New York, and the brochure for the forklift listed rearview mirrors as an optional feature. Unicarriers also established that the forklift was not unreasonably dangerous without backup mirrors and that the plaintiff’s employer was in the best position to balance the benefits and the risks of not having mirrors on the forklift … . * * *

… [T]he Port Authority established, prima facie, that its alleged failure to properly inspect the forklift and its issuance of a Port Authority license plate were governmental functions. Contrary to the plaintiff’s contention, the forklift inspections performed by the Port Authority and the issuance of the license plate were an exercise of the Port Authority’s police power for the protection and safety of the public rather than any authority conferred by a landlord-tenant relationship … . The actions of the Port Authority did not create a special duty toward the plaintiff because the inspections were designed to protect public safety rather than the safety of particular individuals … . Strassburger v Unicarriers Ams. Corps., 2024 NY Slip Op 01742, Second Dept 3-27-24

Practice Point: Here in this forklift accident case, the fact that rear-view mirrors were optional was not a designe defect. The relevant criteria are explained.

Practice Point: Here the Port Authority of NY & NJ, the landlord for JFK Airport, was exercising a governmental function when inspecting the forklift and therefore was immune from suit, criteria explained.

 

, , , ,

A PRETRIAL RULING ON THE ADMISSIBILITY OF EVIDENCE IS AN UNAPPEALABLE ADVISORY RULING; THE MOTION IN LIMINE SEEKING TO SET A LIMIT ON THE VALUE OF AN LLC WAS ACTUALLY AN UNTIMELY SUMMARY JUDGMENT MOTION WHICH SHOULD NOT HAVE BEEN CONSIDERED BY THE COURT (SECOND DEPT).

The Second Department, reversing Supreme Court in this divorce action, determined: (1) an advisory pretrial ruling on the admissibility of evidence is not appealable, and (2) the motion to limit the evidence of the valuation of the LLC to $2,450,000, although couched as a motion in limine, was actually an untimely summary judgment motion:

“[A]n order, made in advance of trial, which merely determines the admissibility of [*2]evidence is an unappealable advisory ruling” … . * * *

… [P]laintiff’s motion which sought, in effect, to set the minimum value of the LLC at $2,450,000 and preclude any evidence of a lower value, while styled as a motion in limine, was the functional equivalent of an untimely motion for partial summary judgment determining that the value of the LLC was at least $2,450,000 … . “[A] motion in limine is an inappropriate substitute for a motion for summary judgment” … , and “in the absence of any showing of good cause for the late filing of such a motion,” should not have been considered … . Desantis v Desantis, 2024 NY Slip Op 01699, Second Dept 3-27-24

Practice Point: A pretrial ruling on the admissibility of evidence is an unappealable advisory ruling.

Practice Point: The motion in limine seeking to set a limit on the value of an LLC in this divorce proceeding was actually an untimely motion for summary judgment which should not have been considered.

 

TO STATE A CAUSE OF ACTION FOR DEFAMATION THE COMPLAINT MUST ALLEGE THE ACTUAL WORDS, WHEN THE STATEMENTS WERE MADE AND TO WHOM THE STATEMENTS WERE MADE; ALLEGING THE “GENERAL CONTENT” OF THE STATEMENTS WITHOUT SPECIFYING WHEN AND TO WHOM THEY WERE MADE IS NOT ENOUGH (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint in this defamation action was deficient in that the actual words alleged to have been defamatory, the dates the statements were made, and the persons to whom the statements were made were not described.

…[T]he complaint fails to state a viable defamation claim, since it does not set forth, inter alia, the actual words complained of, the dates of the alleged statements, or the persons to whom the statements were allegedly made. Rather, the complaint sets forth only the general content of the alleged defamatory statements, which were made at unspecified times to unnamed members of the community and unnamed persons at a business entity. Under such circumstances, the allegations failed to satisfy the pleading requirements of CPLR 3016(a) … . Sternberg v Wiederman, 2024 NY Slip Op 01576, Second Dept 3-20-24

Practice Point: A complaint sounding in defamation must allege the actual words, when the statements were made and to whom they were made. A description of the “general content” of the statements is not enough.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy