Tag Archive for: Second Department

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SELF-SERVING STATEMENTS OF AN INTERESTED PARTY (THE PLAINTIFF IN THIS SLIP AND FALL CASE) WHICH REFERRED TO MATTERS EXCLUSIVELY WITHIN THAT PARTY’S KNOWLEDGE CREATED AN ISSUE OF CREDIBILITY PRECLUDING SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined inconsistencies in plaintiff’s deposition testimony as well as the fact he was the only witness to the incident raised credibility issues which precluded summary judgment:

Here, the plaintiff failed to demonstrate his prima facie entitlement to judgment as a matter of law on the issue of liability. His deposition testimony, which included inconsistencies regarding the location of the alleged accident and was generally vague, in addition to a lack of other supporting evidence, placed his own credibility in issue and presented triable issues of fact regarding how the alleged accident occurred … . The plaintiff also testified at his deposition that he was the only witness to the alleged accident, which further raised credibility issues, since “[o]n a motion for summary judgment . . . , self-serving statements of an interested party which refer to matters exclusively within that party’s knowledge create an issue of credibility which should not be decided by the court but should be left for the trier of facts” … . Espinal v 1760-1770, LLC, 2026 NY Slip Op 04926, Second Dept 8-12-26

Practice Point: On a summary judgment motion, statements by an interested party which refer to matters exclusively within that party’s knowledge can create a credibility issue which precludes summary judgment.

 

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DEFENDANTS’ RELIANCE ON THEIR ATTORNEY’S STATEMENT HE WOULD HANDLE THE MATTER, THE FACT THAT THE SEVERELY INJURED INFANT PLAINTIFF, FOR WHOM DEFENDANTS WERE CARING, REQUIRED EXTRAORDINARY MEDICAL CARE AND FUNDRAISING, AND THE EXISTENCE OF A MERITORIOUS DEFENSE, WARRANTED GRANTING THE MOTION TO VACATE THE DEFAULT JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants’ motion to vacate the default judgment (CPLR 5015(a)(1)) should have been granted. Defendants were under the impression their attorney was handling the case, they had a valid reason for failing to be more proactive in dealing with their attorney, and they had a meritorious affirmative defense:

Here, the defendants claimed that, upon receiving notice of the action in August 2023, they each contacted their family attorney, with whom the grandmother and the family had an 18-year relationship, and who was representing the mother in a child support proceeding against the plaintiff. The family attorney agreed to handle this matter. In a series of text messages to the defendants, the family attorney gave the impression that he was handling the matter and again indicated that such was the case when he met the defendants in person in reference to the child support proceeding. …

During these proceedings, the defendants were caring for the infant, who had suffered a brain injury and had been in the intensive care unit for approximately two months and required machines to help her breathe. The infant’s care involved hyberbaric and stem cell treatments from doctors in Louisiana and Arizona and fundraising to pay for her care.

The defendants each hired their current attorneys and promptly moved to vacate the March 2024 [default] order, alleging that the defendants’ reliance upon the representations of the family attorney constituted a reasonable excuse for their default and further alleging … an affirmative defense … .

… [U]nder the particular circumstances of this case, the defendants’ conduct in relying upon the representations of the family attorney did not constitute willful default or neglect … . Further, the defendants’ responsibilities in caring for the infant provided a reasonable explanation for their failure to be more proactive in their dealings with the family attorney and in the management of this action … . Cross v Lee, 2026 NY Slip Op 04924, Second Dept 8-12-26

Practice Point: Here defendants’ reliance on their attorney’s assurances he was handling the matter, the severity of the infant plaintiff’s injuries (the defendants were caring for the infant), and the existence of a meritorious defense, warranted granting defendants’ motion to vacate the default judgment (CPLR 5051(a)(1)).

 

ALTHOUGH CPLR 8301(A)(6) REFERS TO “REASONABLE EXPENSES OF PRINTING THE PAPERS” FOR AN APPEAL, THE STATUTE IS INTERPRETED TO INCLUDE THE EXPENSES FOR PREPARATION OF A DIGITAL RECORD AND BRIEFS; A PARTY TO WHOM COSTS ARE AWARDED ON APPEAL CAN RECOVER THE COSTS OF CREATING THE DIGITAL RECORD AND BRIEFS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Wan, determined the party to whom costs are awarded on appeal are entitled pursuant to CPLR 8301(a)(6) to expenses for assembly and submission of a digital record and briefs on appeal. The statute refers to “reasonable expenses of printing the paper” which the court interpreted to include the preparation of a digital record and briefs:

… [W]e hold that the plaintiff’s use of an appellate printer to prepare “electronic bookmarks,” “electronic links,” “digital file conversion(s),” and “uploads” for its prior appeal constituted “reasonable expenses of printing the papers for a hearing, when required,” within the meaning of CPLR 8301(a)(6) and was “reasonable and necessary within the context of the litigation” … . Underhill Venture, LLC v Sarang, 2026 NY Slip Op 04976, Second Dept 8-12-26

 

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PLAINTIFF’S MOTION TO AMEND THE COMPLAINT TO ADD A CORPORATE DEFENDANT ALLEGED TO BE “UNITED IN INTEREST” WITH A NAMED CORPORATE DEFENDANT SHOULD HAVE BEEN GRANTED; ALTHOUGH THE STATUTE OF LIMITATIONS HAD PASSED, THE RELATION-BACK DOCTRINE APPLIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the relation-back doctrine applied to allow adding a defendant after the statute of limitations had run. Plaintiff slipped and fell on some wires in her office and sued a company called Blackbox Corporation (apparently alleging responsibility for the presence of wires). Plaintiff sought to amend the complaint to add another company, Nu-Vision, alleging it was “united in interest” with Blackbox:

In order to establish the applicability of the relation-back doctrine, a plaintiff must demonstrate that: “(1) the causes of action arose out of the same conduct, transaction, or occurrence; (2) the new party is united in interest with one or more of the original defendants, and by reason of that relationship can be charged with such notice of the institution of the action that he or she will not be prejudiced in maintaining his or her defense on the merits; and (3) the new defendant knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been commenced against him or her as well” … .. “The ‘linchpin’ of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period” … .

Contrary to the Supreme Court’s determination, the plaintiff demonstrated the applicability of the relation-back doctrine. As to the first prong, there is no dispute that the plaintiff sought to allege causes of action against Nu-Vision arising out of the same occurrence as the causes of action asserted in the amended complaint. The plaintiff also established the second prong, that Nu-Vision and Black Box Corporation of Pennsylvania were “united in interest,” by demonstrating that, under the particular circumstances presented, Nu-Vision and Black Box Corporation of Pennsylvania “intentionally or not, often blurred the distinction between them” … . As to the third prong, the plaintiff sufficiently established that Nu-Vision knew or should have known that, but for a mistake, it would have been named as a defendant … .   Tomlinson v City of New York, 2026 NY Slip Op 04973, Second Dept 8-12-26

Practice Point: Here plaintiff was allowed to amend the complaint to add a corporate defendant after the statute of limitations had passed pursuant to the relation-back doctrine. The added defendant was deemed to be “united in interest” with a named corporate defendant.

 

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IN THIS LABOR LAW ARTICLE 6 AND BREACH OF CONTRACT ACTION FOR UNPAID COMMISSIONS, PLAINTIFF, WHO SUED GAIA PRODUCE AS HIS EMPLOYER, SOUGHT TO AMEND THE COMPLAINT TO ADD ANOTHER PARTY AS HIS EMPLOYER; BASED UPON THE DEFINITION OF “EMPLOYER” IN THE LABOR LAW, THE PROPOSED AMENDMENT WAS PROPER AND SHOULD HAVE BEEN ALLOWED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff should have been allowed to amend the complaint to add a defendant, Nehoumovich. The suit against plaintiff’s employer, Gaia Produce, alleged the failure to pay commissions in violation of Labor Law article 6. Plaintiff alleged Nehoumovich was also plaintiff’s employer. Based on the definition of “employer” in the Labor Law, the Second Department held the proposed amendment was not palpably insufficient or patently devoid of merit:

“Article 6 of the Labor Law sets forth a comprehensive set of statutory provisions enacted to strengthen and clarify the rights of employees to the payment of wages” … . “Labor Law § 190(3) broadly defines an ’employer’ as ‘any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service'” … . “Under the ‘economic reality’ test, the relevant factors include whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records” … . The Supreme Court is “also free to consider any other factors it deems relevant to its assessment of the economic realities” … .

Here, the proposed amendment to add Nahoumovich as a defendant was not palpably insufficient or patently devoid of merit … . The proposed amended complaint alleged, inter alia, that Nahoumovich was “responsible for . . . hiring and firing,” that he “supervised [the] [p]laintiff,” “assign[ed] [the plaintiff] responsibilities concerning negotiating, pricing, and collecting,” that he “was involved in determining the terms and conditions of [the plaintiff’s] employment” and “how [the plaintiff’s] commissions were calculated,” and that he “overs[aw] commission reports.” The plaintiff further submitted a transcript of his own deposition testimony regarding those allegations, and that of Nahoumovich, who acknowledged, among other things, that he made certain hiring recommendations, supervised the plaintiff, provided the plaintiff with directives, and set up the commission structure. The fact that Nahoumovich did not sign the plaintiff’s paychecks is not dispositive … . Under the totality of the circumstances presented here, the plaintiff plausibly alleged that Nahoumovich was an “employer” within the meaning of Labor Law § 190(3) … . Sproule v Gaia Produce, LLC, 2026 NY Slip Op 04971, Second Dept 8-12-26

Practice Point: Consult this decision for insight into the criteria for determining whether a party is an “employer” within the meaning of the Labor Law in an action seeking unpaid commissions.

 

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IN THE FACE OF EVIDENCE PLAINTIFF DID NOT INTEND TO ABANDON THE ACTION, IT WAS AN ABUSE OF DISCRETION TO DISMISS THE COMPLAINT FOR FAILURE TO MEET THE DEADLINE FOR FILING A NOTE OF ISSUE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the dismissal of the complaint because plaintiff failed to timely file a note of issue was an abuse of discretion. Plaintiff had communicated with defendant within the 90-day period about discovery owed plaintiff. If defendant had complied with the discovery requests, plaintiff could have timely filed:

“[A] plaintiff [who] has been served with a 90-day notice pursuant to CPLR 3216(b)(3) . . . must comply with the notice by filing a note of issue or by moving, before the default date, either to vacate the 90-day notice or to extend the 90-day period” … . “In general, if a plaintiff fails to comply with the demand, to avoid the sanction of dismissal, the plaintiff is required to demonstrate a justifiable excuse for the delay and the existence of a potentially meritorious cause of action” … . However, CPLR 3216 is “extremely forgiving, and, [w]hile the statute prohibits the Supreme Court from dismissing an action based on neglect to proceed whenever the plaintiff has shown a justifiable excuse for his or her delay, and a meritorious cause of action[,] such a dual showing is not strictly necessary in order for the plaintiff to escape such a dismissal” … .

Here, there was no evidence that the defendant was prejudiced by the plaintiff’s delay in filing the note of issue after expiration of the 90-day period, that there was a pattern of persistent neglect and delay in prosecuting the action, or that there was any intent by the plaintiff to decline to proceed with discovery or otherwise abandon the action … . * * *

Had the defendant complied with either of the plaintiff’s first two emailed requests for outstanding discovery, the plaintiff could have timely filed the note of issue. This evidence negated any inference that the plaintiff intended to abandon the action and, inasmuch as the defendant contributed to the plaintiff’s inability to timely file a note of issue, the defendant’s assertion of prejudice from the delay was disingenuous … . Salik v Atlantis Operating, LLC, 2026 NY Slip Op 04970, Seccond Dept 8-12-26

Practice Point: CPLR 3216 is “extremely forgiving.” Here it was an abuse of discretion to dismiss the complaint for failure to meet the deadline for filing a note of issue.

 

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PLAINTIFF WAIVED THE OBJECTION TO A LATE ANSWER BY FAILING TO REJECT THE ANSWER WITHIN 15 DAYS OF RECEIPT; DEFENDANTS MOTION TO COMPEL ACCEPTANCE OF THE ANSWER SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff waived any objection to the defendants’ late answer by failing to reject the answer within 15 days of receipt:

Pursuant to CPLR 2101(f), “[t]he party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within fifteen days after the receipt thereof, the party on whom the paper is served returns the paper to the party serving it with a statement of particular objections.” Here, the plaintiff’s undisputed failure to reject the defendants’ answer within the 15-day statutory time frame constituted a waiver of the late service and the default … . Accordingly, the Supreme Court should have granted the defendants’ motion to compel the plaintiff to accept their late answer and denied the plaintiff’s cross-motion for leave to enter a default judgment against the defendants … . PNC Bank, N.A. v Kane, 2026 NY Slip Op 04967, Second Dept 8-12-26

Practice Point: If plaintiff wishes to object to receipt of a late answer, plaintiff must reject the answer within 15 days or the objection is waived and the defendant can move to compel acceptance.

 

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IN THIS PUBLIC-BEACH SWIMMING-ACCIDENT CASE, THE PETITIONER SHOULD NOT HAVE BEEN GRANTED PERMISSION TO FILE A LATE NOTICE OF CLAIM; THE TOWN DID NOT HAVE TIMELY KNOWLEDGE OF THE ESSENTIAL FACTS OF THE CLAIM; THE PETITIONER DID NOT HAVE A GOOD EXCUSE; THE TOWN MADE A PARTICULARIZED SHOWING OF PREJUDICE; AND THE CLAIM WAS CLOSE TO MERITLESS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition to serve a late notice of claim against the town in this swimming-injury case should not have been granted. Petitioner was floating 100 yards beyond the designated swimming area at a town beach with the back of his head toward the ocean when a wave crashed over him, forcing him to the ocean floor and causing a severe spinal cord injury. The Second Department went through all the criteria for allowing late notice and found that the facts fell short:

… [T]he petitioner failed to establish that the Town had actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter. “‘[K]nowledge of the accident itself and the seriousness of the injury does not satisfy this enumerated factor where those facts do not also provide the public corporation with knowledge of the essential facts constituting the claim'” … . “Generally, the phrase ‘facts constituting the claim’ is understood to mean the facts which demonstrate a connection between the happening of the accident and any negligence on the part of the public corporation” … . * * *

… [I]n light of the fact that members of his family appeared to be considering the making of a claim when they returned to the accident scene one week after the accident and interviewed lifeguards, the petitioner failed to demonstrate a reasonable excuse for failing to serve a timely notice of claim, or for failing to serve a notice of claim until 67 days after meeting with attorneys … . * * *

… [T]he Town made a “particularized evidentiary showing that [it] will be substantially prejudiced if the late notice is allowed” … . The Town submitted, among other things, an affirmation of its lifeguard captain, who stated that he spoke to the petitioner and his companions immediately after the accident and recalled the petitioner telling him that the petitioner had consumed alcohol, but he no longer recalled what the petitioner said about his alcohol use or other details about the accident. * * *

… [T]he petitioner’s claim that the lifeguards had a duty to warn him that he was beyond the designating swimming area and to warn him that it was dangerous to float with his back to the ocean borders on being patently meritless … . Matter of Cataldo v Town of E. Hampton, 2026 NY Slip Op 04946, Second Dept 8-12-26

Practice Point: Consult this decision for a concise factual explanation for the denial of permission to file a late notice of claim.

 

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PETITIONER POLICE OFFICER WAS TERMINATED FOR MISCONDUCT AND SOUGHT TO BRING A CPLR ARTICLE 78 PROCEEDING; THE CITY CHARTER REQUIRED THE FILING OF A NOTICE OF CLAIM AS A CONDITION PRECEDENT FOR ANY NONTORT ACTION AGAINST THE CITY; PETITIONER FAILED TO TIMELY FILE A NOTICE OF CLAIM; BECAUSE THE CHARTER MAKES NO PROVISION FOR SERVING A LATE NOTICE OF CLAIM IN NONTORT ACTIONS, SUPREME COURT DID NOT HAVE AUTHORITY TO GRANT PETITONER’S REQUEST FOR PERMISSION TO SERVE A LATE NOTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court did not have the authority to grant the petitioner, a police officer terminated for misconduct, an extension of time to file a late notice of claim against the city. The city charter did not have a provision for service of a late notice for nontort actions. Petitioner was attempting to bring a CPLR article 78 proceeding contesting his termination:

Section C6.47(A) of the City Charter for the City of Newburgh provides that, for nontort claims, no action or special proceeding shall be maintained against the City unless “a written verified claim . . . was served on the City . . . within three months after the accrual of such claim.” The service of a notice of claim is thus a condition precedent to maintaining an action or proceeding against the City … . “[S]tatutory requirements conditioning suit against a governmental entity must be strictly construed” … .

Here, it is undisputed that the petitioner failed to serve a notice of claim within three months after his claim accrued, as required by section C6.47 of the City Charter for the City of Newburgh. Moreover, unlike other notice statutes, section C6.47 of the City Charter for the City of Newburgh does not provide courts with the authority to extend the time for the service of a notice of claim arising upon nontort claims … . Consequently, since this proceeding is not founded upon tort, the Supreme Court was without authority to grant the petitioner’s motion for leave to serve a late notice of claim … . Matter of Canario v City of Newburgh, 2026 NY Slip Op 04945, Second Dept 8-12-26

Practice Point: If the controlling legislation, here a city charter, makes no provision allowing a party to seek permission to serve of a late notice of claim, a court cannot grant such permission. Here the city charter did not include a “late notice” provision for nontort actions against the city.

 

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THE FAMILY COURT ACT ALLOWS COMMITMENT TO JAIL FOR SIX MONTHS FOR EACH VIOLATION OF AN ORDER OF PROTECTION; HERE THE 42-MONTH COMMITMENT WAS AFFIRMED (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Ventura, determined father was properly committed to jail for 42 months for 10 violations of orders of protection: Father argued the commitment could not be more than 30 days per violation:

After a hearing on both violation petitions … the Family Court found that the father willfully violated the temporary orders of protection … on 10 separate occasions. In an order of commitment … , the court, inter alia, committed the father to the custody of the New York City Department of Correction for a period of 42 months. The court rejected the father’s argument that, pursuant to Judiciary Law § 751, the court only had the authority to sentence him to 30 days in jail for each willful violation. The court determined that it had the authority to impose 10 consecutive six-month terms of incarceration based on its finding that the father committed 10 separate willful violations, which would amount to a maximum permissible sentence of 60 months in jail, and imposed the 42-month term of incarceration. The father appeals, asserting that the maximum permissible sentence was a total of 300 days in jail. * * *

Sections 846-a and 1072 of the Family Court Act provide a “specific punishment or other remedy” for a willful violation of an order of protection issued under article 10 of the Family Court Act (Family Ct Act § 156). Accordingly, Judiciary Law § 751 does not apply, and the Family Court was authorized to commit the father to jail for a period of 42 months upon the court’s finding that, on 10 separate occasions, the father violated temporary orders of protection issued under article 10 of the Family Court Act … . Matter of Austin C. (Rasaan K.C.), 2026 NY Slip Op 04944, Second Dept 8-12-26