You are here: / Second Department

Tag Archive for: Second Department

, ,

THE DEFENDANT’S WAIVER OF APPEAL WAS INVALID BECAUSE THE JUDGE FAILED TO ADVISE DEFENDANT (1) THAT THE STATE WOULD BEAR THE COSTS OF AN APPEAL IF THE DEFENDANT COULD NOT AFFORD THEM; AND (2) THE WAIVER DID NOT ENCOMPASS THE LOSS OF RIGHTS TO COUNSEL AND THE WAIVER OF COSTS, FEES, AND EXPENSES; IN ADDITION THE JUDGE DID NOT ASCERTAIN WHETHER DEFFENDANT READ AND UNDERSTOOD THE WRITTEN WAIVER FORM, OR WHETHER DEFENDANT HAD DISCUSSED THE WAIVER WITH COUNSEL (SECOND DEPT). ​

The Second Department determined defendant’s waiver of appeal was invalid:

… [T]he defendant’s purported waiver of his right to appeal was invalid. Among other things, during the appeal waiver colloquy, the Supreme Court failed to advise the defendant that if he could not afford the costs of an appeal or of an attorney to represent him on appeal, then the State would bear those costs … or to advise the defendant that the waiver of the right to appeal did not encompass the loss of attendant rights to counsel and the waiver of costs, fees, and expenses … . Although the defendant executed a written appeal waiver form, the court failed to ascertain on the record whether the defendant had read the written waiver, was aware of all of its contents, and had discussed the entire written waiver with counsel, including the portion of the written waiver addressing the attendant rights to counsel and the waiver of costs, fees, and expenses … . Thus, under the circumstances of this case, the defendant did not knowingly, voluntarily, and intelligently waive his right to appeal, and the purported appeal waiver does not preclude appellate review of any of the defendant’s contentions … . People v Mingo, 2025 NY Slip Op 06335, Second Dept 11-19-25

Practice Point: Consult this decision for insight into what a judge must advise and ask the defendant to ensure the waiver of appeal is knowing and intelligent.

 

,

A JUDGE CANNOT DELEGATE PARENTAL ACCESS DETERMINATIONS TO A MENTAL HEALTH PROFESSIONAL (SECOND DEPT). ​

The Second Department noted that a judge should not delegate to a mental health professional the determination of whether a parent will be awarded parental access:

“[A] court may not properly delegate to mental health professionals the ultimate determination of whether a parent will be awarded [parental access] rights” … . It is “improper for [a] court to condition future [parental access] on the recommendation of a mental health professional” … . Here, the Family Court erred by delegating to the therapeutic agency (1) the authority to determine when therapeutic parental access would cease and the father’s prior stipulated unsupervised parental access schedule would be reinstated and (2) the discretion to expand and/or modify the father’s access to the children … . Accordingly, the order must be modified by deleting the provisions thereof modifying the parental access provisions of the judgment of divorce so as to condition the father’s parental access on the therapeutic agency’s determinations. Matter of McCook v Delbrune, 2025 NY Slip Op 06322, Second Dept 11-19-25

 

, , ,

DOCUMENTS RELATING TO THE MENTAL-HEALTH TREATMENT OF A PEDOPHILE PRIEST WERE NOT PROTECTED BY PRIEST-PENITENT, PHYSICIAN-PATIENT OR PSYCHOLOGIST-PATIENT PRIVILEGES; THE NAMES OF OTHER CHILDREN ABUSED BY THE PRIEST ALLEGED TO HAVE ABUSED PLAINTIFF ARE DISCOVERABLE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, determined progress reports concerning the mental health treatment of a pedophile priest were discoverable without redaction in this Child Victims Act case against the Diocese. The Diocese claimed the redacted information was protected from disclosure by the priest-penitent, physician-patient and psychologist-patient privileges. The Second Department determined those privileges were waived by the (pedophile) priest who consented to forwarding the reports to a third-party, a Bishop overseeing the priest’s progress. In addition, the priest-penitent privilege did not apply because the documents did not relate to spiritual guidance. The Second Department further determined that the names of other victims allegedly abused by the same priest were discoverable:

This appeal permits us to address two principal sets of issues. The first is a rare two-step analysis regarding the potential disclosure of progress reports and letters generated at the request of a religious organization to determine whether an alleged pedophile priest could be safely returned to duties at a parish. Under the circumstances of this appeal, we hold that the progress reports of an alleged pedophile priest that are shared with his Bishop with accompanying letters, to assist the Bishop in determining whether the priest may return to parish duties, fall outside the scope of the clergy-penitent privilege of confidentiality under CPLR 4505. Further, we hold that the physician-patient and psychologist-patient privileges of confidentiality for progress reports and letters generated by a psychological treatment facility to assist the same Bishop’s determination, and disclosed to the Bishop for that purpose, are waived under CPLR 4504 and 4507. Relatedly, we hold that the Appellate Division, Second Department, agrees with the reasoning of the Appellate Divisions, First and Third Departments, that in actions pursuant to the Child Victims Act (CVA) (see CPLR 214-g), courts may exercise discretion in favor of requiring the unredacted disclosure of the identities of alleged abuse victims other than the plaintiff, so long as those abuses were committed by the same alleged abuser rather than by any other alleged abuser. Maida v Diocese of Brooklyn, 2025 NY Slip Op 06314, Second Dept 11-19-25

​Practice Point: Consult this opinion for discussions of the nature of the priest-penitent, physician-patient and psychologist-patient privileges in the context of the discovery of documents relating to the mental health treatment of a pedophile priest accused of abusing children.

Practice Point: Consult this opinion for a discussion of the discoverability of the names of other children abused by the priest who is alleged to have abused the plaintiff.

 

, ,

THE SECOND DEPARTMENT HAD REVERSED ON APPEAL, DETERMINING THE COMPLAINT SHOULD HAVE BEEN DISMISSED; WHEN SUPREME COURT WROTE A JUDGMENT DISMISSING THE COMPLAINT BASED ON THE SECOND DEPARTMENT’S DECISION IT IMPROPERLY ADDED A SENTENCE WHICH WAS NOT IN THE DECISION; A JUDGMENT BASED UPON AN APPELLATE DECISION MUST STRICTLY CONFORM TO THE DECISION (SECOND DEPT).

The Second Department, modifying Supreme Court, determined the judgment entered by Supreme Court after reversal on apply did not strictly conform to the Second Department’s decision. Presumable the extra sentence added by Supreme Court was struck on appeal:

… [T]he judgment should not have included the provision directing “that Plaintiff is permitted to file a new action as against [the defendant] in accordance with Brothers v. Florence, 95 NY2d 290 (2000),” as the judgment was entered upon this Court’s decision and order dated December 28, 2022 … , which did not grant such relief to the plaintiff … . “A ‘written order [or judgment] must conform strictly to the court’s decision,’ and in the event of an inconsistency between a judgment and a decision or order upon which it is based, the decision or order controls” … . “Such an inconsistency may be corrected either by way of a motion for resettlement or on appeal” … . Deutsche Bank Trust Co. Ams. v Smith, 2025 NY Slip Op 06308, Second Dept 11-19-25

Practice Point: After reversal on appeal, any judgment written by the lower court must strictly conform to the language of the appellate decision. Here Supreme Court wrote a judgment dismissing the complaint but improperly added a sentence (which was not in the appellate decision) to the effect that plaintiff was permitted to file a new action.

 

,

GENERALLY A HOMEOWNER WHO DOES NOT DIRECT THE WORK ON THE HOME CANNOT BE HELD LIABLE FOR A LADDER-FALL PURSUANT TO LABOR LAW 240(1); BUT THE HOMEOWNER’S EXEMPTION DOES NOT APPLY WHEN THE WORK IS RELATED TO A COMMERCIAL PURPOSE; HERE THERE WERE QUESTIONS OF FACT WHETHER THE PROPERTY WAS TO BE USED FOR COMMERCIAL PURPOSES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact whether the defendant property-owner in this ladder-fall case was entitled to the homeowner’s exemption from Labor Law 240(1) liability because the work related to a commercial purpose:

“Although the Labor Law generally imposes liability for worker safety on property owners and contractors, it exempts from liability ‘owners of one and two-family dwellings who contract for but do not direct or control the work'” ( … Labor Law §§ 240[1]; 241[6]). However, “[t]he exemption ‘was not intended to insulate from liability owners who use their one- or two-family houses purely for commercial purposes'” … . “‘[R]enovating a residence for resale or rental plainly qualifies as work being performed for a commercial purpose'” … . “Where the property serves both residential and commercial purposes, [a] determination as to whether the exemption applies in a particular case turns on the nature of the site and the purpose of the work being performed, and must be based on the owner’s intentions at the time of the injury” … .

Here, the defendant failed to eliminate triable issues of fact as to whether he was entitled to the homeowner’s exemption, including whether the work being performed related to a commercial purpose of the premises … and whether the defendant intended to use the premises as a three-family dwelling … .  Reyes v Rahman, 2025 NY Slip Op 06348, Second Dept 11-19-25

Practice Point: The homeowner’s exemption from Labor Law 240(1) liability does not apply where the home is used for commercial purposes.​

 

, ,

QUESTIONS OF FACT WHETHER DEFENDANT POLICE OFFICER ACTED WITH “RECKLESS DISREGARD” FOR THE SAFETY OF OTHERS DURING A POLICE CHASE PRECLUDED SUMMARY JUDGMENT; PLAINTIFF POLICE OFFICER WAS INJURED WHEN HER PATROL CAR WAS STRUCK BY THE PURSUED CAR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact whether defendant police officer, Encarnation, acted with “reckless disregard” during a police chase. The pursued car crashed into plaintiff police officer’s, Corsi’s, patrol car. Defendant Encarnation worked for the Village of Ossining police department. Plaintiff Corsi worked for the Village of Briarcliff Manor police department. Plaintiff sued both Encarnation and the Village of Ossining:

The plaintiff commenced the instant action against, among others, the Village of Ossining and Encarnacion pursuant to General Municipal Law § 207-c(6) for the reimbursement of all salary, benefits, and expenses paid by the plaintiff to Corsi as a result of injuries she sustained in the line of duty due to the allegedly reckless or negligent conduct of the Village of Ossining and Encarnacion that took place during Encarnacion’s pursuit of Hester and Hester’s eventual crash into Corsi’s vehicle. * * *

… [T]he Village of Ossining and Encarnacion failed to eliminate all triable issues of fact as to whether Encarnacion acted with reckless disregard for the safety of others and whether such conduct was a proximate cause of Corsi’s injuries … . In support of their motion, the Village of Ossining and Encarnacion submitted, among other things, transcripts of the deposition testimony of Encarnacion, Hester, and Corsi, who collectively testified that on the day at issue, Encarnacion pursued Hester at high speeds through residential and commercial roads and that Hester struck another vehicle and narrowly avoided striking pedestrians during the chase. Village of Briarcliff Manor v Village of Ossining, 2025 NY Slip Op 06214, Second Dept 11-12-25

Practice Point: Consult this decision for insight into the evidence which will raise a question of fact whether a police officer, during an emergency car-chase, acted with “reckless disregard” for the safety of others such that a police officer injured when the pursued car crashed into her patrol car can sue pursuant to General Municipal Law 207-c (6).

 

, ,

ALTHOUGH THE FAILURE TO SUBMIT A “NON-MILITARY AFFIDAVIT” DEMONSTRATING DEFENDANT IS NOT IN THE MILITARY IS A VALID GROUND FOR DENYING A MOTION TO ENTER A DEFAULT JUDGMENT, IT IS NOT A GROUND FOR VACATING A DEFAULT JUDGMENT UNLESS THE DEFENDANT DEMONSTRATES HE OR SHE WAS, IN FACT, IN THE MILITARY (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Genovesi, determined: (1) although the default judgement in this breach of contract action was improperly entered because a so-called “non-military affidavit” demonstrating defendant was not in the military was not submitted by the plaintiff, the absence of a “non-military affidavit” does not warrant vacatur of the default judgment unless the defendant demonstrates he or she was, in fact, in the military (not the case here); and (2) because the damages in this breach of contract action were estimated and were not for a “sum certain,” an inquest is required. Here plaintiff hired defendant to do concrete work for a construction project. The complaint alleged the work was not completed and sought estimated damages over $900,000:

It is clear that a non-military affidavit is counted amongst the proof required for a movant to meet its burden on a motion for leave to enter a default judgment. A movant’s failure to provide a non-military affidavit is sufficient to warrant denial of such a motion in the first instance … . * * *

It … that the [New York State Soldiers’ and Sailors’ Civil Relief Act] carves out a remedy for vacatur of default judgments … . However, this remedy is limited to applications made “by or on behalf of the servicemember” and “for the purpose of allowing the servicemember to defend the action” under certain circumstances. The statutory text does not support the defendants’ assertion that any person may seek to vacate a default judgment based on a failure to comply with the Act. Therefore, we hold that a movant’s failure to provide a non-military affidavit does not entitle a defendant to vacatur of an otherwise validly entered default judgment as of right. Where, as here, the defaulting party has made no assertion of being on active military duty at the time of his or her default, he or she falls outside of the protection afforded by the Act. * * *

“Where the damages sought are for a ‘sum certain or for a sum which can by computation be made certain,'” CPLR 3215(a) permits the clerk, upon proper proof, to enter judgment up to the amount demanded in the complaint, without notice to the defendant … . Otherwise, an application to the court pursuant to CPLR 3215 is required and an inquest is appropriate to assess damages … . Where damages cannot be determined without extrinsic proof, an inquest is required … . Tri-Rail Designers & Bldrs., Inc. v Concrete Superstructures, Inc., 2025 NY Slip Op 06209, Second Dept 11-12-25

Practice Point: The New York State Soldiers’ and Sailors’ Civil Relief Act requires a plaintiff seeking a default judgment to submit a “non-military affidavit” demonstrating defendant is not in the military. Consult this decision for instruction on how to do that. Failure to submit a “non-military affidavit” is a valid ground for denial of a motion for a default judgment but, it is not enough to warrant vacatur of a default judgment. Defendant must prove he or she was, in fact, in the military to warrant vacatur on this ground.

Practice Point: If damages are not based on a “sum certain,” where plaintiff seeks a default judgment, an inquest to determine damages is required.

 

,

IN THIS “BAR FIGHT” “INADEQUATE SECURITY” ACTION, THE DEFENDANT BAR HAD TIMELY SUED ITS SECURITY COMPANY AS A THIRD-PARTY DEFENDANT; AFTER THE STATUTE OF LIMITATIONS EXPIRED, PLAINTIFF SOUGHT TO SUE THE SECURITY COMPANY DIRECTLY UNDER A “RELATION BACK” THEORY; PLAINTIFF’S MOTION TO SERVE AND FILE AN AMENDED COMPLAINT AGAINST THE SECURITY COMPANY DIRECTLY SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for leave to serve and file an amended complaint adding defendant security company, MAS, after the statute of limitations had expired, should have been granted. Plaintiff was punched in a bar owned by defendant B&M. Plaintiff sued the bar alleging inadequate security, The bar then sued MAS, which provided security for the bar. MAS, therefore, was involved in the litigation as a third-party defendant before the statute of limitations expired:

Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was for leave to serve and file a supplemental summons and amended complaint adding MAS as a direct defendant. “In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit” … . “Delay alone is insufficient to bar an amendment to the pleading; [i]t must be lateness coupled with significant prejudice to the other side” … .

Here, … the three-year statute of limitations applicable to the plaintiff’s cause of action alleging negligence (see CPLR 214[5]) had expired by the time that the plaintiff moved … for leave to serve and file a supplemental summons and amended complaint adding MAS as a direct defendant, whether the amendment may be allowed depends upon whether the relation-back doctrine applies (see CPLR 203[f] …), with the burden being on the plaintiff to establish that the doctrine applies … . B & M’s third-party complaint and the plaintiff’s proposed amended complaint arise out of the same conduct, transaction, or occurrence … . Also, there is no dispute that MAS was “a participant in the litigation” … . Moreover, “[t]he proposed amendment was not palpably insufficient or devoid of merit, and there was no prejudice to [MAS] in allowing the plaintiff to amend the complaint to add it as a direct defendant” … .

Contrary to the Supreme Court’s determination, the plaintiff was not required to demonstrate that MAS and B & M were united in interest since the record demonstrates that MAS had actual notice of the plaintiff’s potential cause of action against it within the applicable limitations period and was a third-party defendant in the action … . Egelandsdal v Massaro, 2025 NY Slip Op 06156, Second Dept 11-12-25

Practice Point: Consult this decision for insight into the criteria for the application of the “relation back” theory which allows suit after the statute of limitations has run. Here in this bar-fight “inadequate security” action against defendant bar, the bar had timely sued its security company as a third-party defendant. Because the security company was already involved in the litigation, and because the complaint against the bar and the security company arose out of the same conduct, the “relation back” criteria of CPLR 203(f) were met and plaintiff should have been allowed to sue the security company directly after the statute of limitations had expired.​

 

, , ,

DEFENDANTS IN THIS BREACH OF CONTRACT ACTION SHOULD HAVE BEEN SANCTIONED FOR SPOLIATION OF EVIDENCE, I.E., THE DESTRUCTION OR LOSS OF EMAILS; PLAINTIFFS’ MOTION TO STRIKE THE ANSWER WAS PROPERLY DENIED; HOWEVER, PLAINTIFFS WERE ENTITLED TO AN ADVERSE INFERENCE JURY INSTRUCTION AT TRIAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendants should have been sanctioned for spoliation of evidence, i.e., the failure to preserve relevant emails. The plaintiffs alleged defendants performed faulty renovation-work and thereby breached the renovation contract:

“Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126” … . “The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence” … . “A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense” … . “‘A culpable state of mind for [the] purposes of a spoliation sanction includes ordinary negligence'” … . Further, “[s]triking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct and, in order to impose such a sanction, the court ‘will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness'” … . “In contrast, where the moving party has not been deprived of the ability to establish his or her case or defense, a less severe sanction is appropriate” … . “[A]dverse inference charges have been found to be appropriate even in situations where the evidence has been found to have been negligently destroyed” … .

… [P]laintiffs demonstrated that the defendants were on notice that they had an obligation to preserve their email accounts and emails prior to the time that they were lost or destroyed. The plaintiffs also demonstrated that the emails were lost or destroyed with a culpable state of mind and that the emails were sufficiently relevant to the litigation … . Nonetheless, contrary to the plaintiffs’ contention, the drastic remedy of striking the defendants’ answer was not warranted … . Under the circumstances, the Supreme Court should have granted that branch of the plaintiffs’ motion which was pursuant to CPLR 3126 to strike the defendants’ answer to the extent of directing that an adverse inference charge be issued at trial against the defendants with respect to the loss or destruction of their email accounts and emails … . Dorman v Luva of NY, LLC, 2025 NY Slip Op 06155, Second Dept 11-12-25

Practice Point: Consult this decision for a concise explanation of the criteria for finding spoliation of evidence and the appropriate sanctions. In this breach of contract action, plaintiffs demonstrated defendants destroyed or lost relevant emails with a “culpable state of mind.”

 

, , ,

IN THIS EJECTMENT ACTION, DEFENDANT-TENANT’S “FAILURE TO STATE A CAUSE OF ACTION,” “WAIVER,” “CONSTRUCTIVE EVICTION,” “BREACH OF COVENANT OF QUIET ENJOYMENT,” “IMPROPER NOTICE OF DEFAULT,” AND “TRESPASS” AFFIRMATIVE DEFENSES SHOULD NOT HAVE BEEN DISMISSED; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined several affirmative defenses in this ejectment action should not have been dismissed. Plaintiff landlord sought to eject defendant tenant from a parking lot for nonpayment of rent. Defendant alleged, and plaintiff acknowledged, plaintiff had rented certain parking spaces to a third party. The Second Department held: (1) no motion lies to dismiss a “failure to state a cause of action” defense because plaintiff cannot test the sufficiency of its own claim; (2) the “waiver” defense should not have been dismissed despite the “nonwaiver” provision in the lease; (3) the constructive eviction and breach of covenant of quiet enjoyment defenses were supported by plaintiff’s renting spaces to a third party; (4) the ‘improper notice of default” defense was supported by the plaintiff’s failure to provide the notice called for by the lease; and (5) the “trespass” defense was supported by the rental of spaces to a third party:

CPLR 3211(b) provides that “[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit.” “When moving to dismiss, the plaintiff bears the burden of demonstrating that the affirmative defenses ‘are without merit as a matter of law because they either do not apply under the factual circumstances of [the] case, or fail to state a defense'” … . “‘On a motion pursuant to CPLR 3211(b), the court should apply the same standard it applies to a motion to dismiss pursuant to CPLR 3211(a)(7), and the factual assertions of the defense will be accepted as true'” … . “‘Moreover, if there is any doubt as to the availability of a defense, it should not be dismissed'” … . Diversified Bldg. Co., LLC v Nader Enters., LLC, 2025 NY Slip Op 06047, Second Dept 11-5-25

Practice Point: Consult this decision for insight into the criteria for dismissal of an affirmative defense and the elements of “waiver,” “constructive eviction,” “breach of covenant of quiet enjoyment,” “Improper notice of default,” and “trespass” affirmative defenses as alleged by defendant-tenant in this ejectment action brough by plaintiff-landlord.

 

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