You are here: / Second Department

Tag Archive for: Second Department

,

THE COMPLAINT SUFFICIENTLY ALLEGED A DEFAMATION CAUSE OF ACTION; THE DEFENDANT ALLEGEDLY TOLD PLAINTIFF’S PHYSICIAN THAT PLAINTIFF WAS BANNED FROM DEFENDANT’S PHARMACY FOR STEALING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff had alleged a defamation cause of action and the motion to dismiss should not have been granted. Plaintiff alleged defendant falsely accused him of stealing newspapers from a pharmacy:

The plaintiff alleged, among other things, that in November 2020, he was a customer at a CVS store in Jericho, where the defendant Martin was employed as a pharmacist. The plaintiff further alleged that, on December 3, 2020, Martin informed his physician, inter alia, that the plaintiff was banned from the pharmacy for stealing newspapers on multiple occasions and that she had reported the plaintiff to the police. * * *

… [T]he complaint alleged that the statement that the plaintiff was banned from the pharmacy in question for stealing was made on December 3, 2020. The complaint also set forth the statement allegedly made and to whom the statement was made … . Contrary to the defendants’ contention, “the words need not be set in quotation marks” to state a cause of action to recover damages for defamation … . Moreover, the allegation that the plaintiff “was stealing” “constitutes an allegation of a ‘serious crime’ so as to qualify as slander per se” … . Jesberger v CVS Health Solutions, LLC, 2023 NY Slip Op 06515, Second Dept 12-20-23

Practice Point: The allegation that defendant told plaintiff’s physician that plaintiff was banned from defendant’s pharmacy for stealing sufficiently stated a cause of action for defamation.

 

, , ,

PLAINTIFF SUED AN ILLINOIS SCHOOL ALLEGING THAT THE ONLINE COURSES OFFERED BY DEFENDANT SCHOOL DURING THE PANDEMIC CONSTITUTED A TRANSACTION IN NEW YORK WITHIN THE MEANING OF THE LONG-ARM STATUTE; BUT PLAINTIFF DID NOT ALLEGE SHE WAS IN NEW YORK WHEN SHE TOOK THE ONLINE COURSES; DEFENDANT’S MOTION TO DISMISS FOR LACK OF JURISDICTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not raise a question of fact about whether defendant, an Illinois school, conducted a transaction in New York sufficient to confer long-arm jurisdiction. Because of the pandemic, the courses offered by the school were online. Plaintiff alleged a breach of contract by the school involving a grading issue. A major flaw in plaintiff’s case was that she did not allege she was in New York when she took the online courses:

… [T]he plaintiff failed to show that the defendants purposefully availed themselves of the privilege of conducting activities in New York so as to subject them to long-arm jurisdiction pursuant to CPLR 302(a)(1) … . While the plaintiff attests in her affidavit that since March 2020, she has not taken a class at the defendants’ Illinois location, that the only contact she had with the defendants since that date was either virtually or by telephone, and that none of the facts alleged in her complaint took place in person in Illinois, none of this demonstrates that the defendants were engaged in any activity in New York, let alone purposeful activity. Other than the plaintiff’s allegation that she is a New York resident, there is no other reference to New York in the complaint or in the plaintiff’s affidavit. Significantly, the plaintiff’s allegations are devoid of any indication that she was in New York during the time of the alleged communications with the defendants. Greenfader v Chicago Sch. of Professional Psychology, 2023 NY Slip Op 06513, Second Dept 12-20-23

Practice Point: It is not clear from the decision whether taking an online course in New York offered by a school in Illinois confers long-arm jurisdiction over the school. Granting the school’s motion to dismiss appears to be based upon the plaintiff’s failure to allege she was in New York when she took the online course.

 

,

INFANT PLAINTIFF ASSUMED THE RISK OF FALLING BECAUSE OF PEBBLES AND WET GRASS ON THE SOCCER FIELD (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined infant plaintiff assumed the risk of falling in a school pick-up soccer game. Plaintiff alleged he fell because of pebbles and wet grass on the playing field:

The infant plaintiff testified that he fell because of a combination of, among other things, pebbles on the field and wet and muddy grass. The infant plaintiff further testified that there were no puddles, and the grass was wet from the previous day’s rain and other students playing with water balloons on the field. However, neither the pebbles nor the wet grass described in this case presented a concealed or unreasonably increased risk beyond those inherent in the activity of outdoor soccer … , regardless of whether the wet grass was caused by rain or water balloons … . Furthermore, merely allowing children to play on a field with pebbles and wet grass does not constitute negligent supervision … .   To hold otherwise would effectively prohibit schools from utilizing outdoor playing fields … . C.P.G. v Uniondale Sch. Dist., 2023 NY Slip Op 06512, Second Dept 12-20-23

Practice Point: Here the infant plaintiff assumed the risk of falling because of pebbles and wet grass on the soccer playing field.

 

,

THE MOTION TO AMEND THE COMPLAINT TO CORRECT A TYPO SHOULD HAVE BEEN GRANTED (LABOR LAW 241 AND 241(B) RATHER THAN 240(1)); SUMMARY JUDGMENT CAN BE GRANTED ON AN UNPLEADED CAUSE OF ACTION; HERE THERE WAS A QUESTION OF FACT WHETHER THE FOUR-INCH ELEVATION DIFFERENTIAL WAS DE MINIMIS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to amend the complaint to correct a typographical error should have been granted and noted that a motion for summary judgment can be granted on an unpleaded cause of action. The complaint alleged violation of Labor Law 241 and 241 (b) instead of Labor Law 240(1). The Second Department went on to find that plaintiff was not entitled to summary judgment because there was a question of fact whether the accident was an “elevation-related” event–a cylinder had dropped four inches and injured plaintiff’s finger. The question of fact concerned whether the four-inch height differential was de minimis:

… [T]he proposed amendment corrected a typographical error, did not result in any prejudice or surprise to the defendants, and was not palpably insufficient or patently devoid of merit … . 

We note that, despite the fact that the plaintiff had not yet properly pleaded a Labor Law § 240(1) cause of action at the time that he made a motion for summary judgment on the issue of liability pursuant to Labor Law § 240(1), “summary judgment may be awarded on an unpleaded cause of action if the proof supports such cause and if the opposing party has not been misled to its prejudice” … . * * *

The plaintiff failed to meet his prima facie burden, as he did not prove, as a matter of law, that he sustained the type of elevation-related injury that Labor Law § 240(1) was intended to protect against. Namely, where the cylinder fell only four inches but did so with such force as to crush the plaintiff’s finger, there are triable issues of fact as to whether the elevation differential between the plaintiff and the falling object was de minimis … . Castillo v Hawke Enters., LLC, 2023 NY Slip Op 06505, Second Dept 12-20-23

Practice Point: The motion to amend the complaint to correct a typo should have been granted.

Practice Point: Where the facts support it, a summary judgment motion may be based on an unpleaded cause of action.

Practice Point: Here a cylinder dropped four inches, injuring plaintiff’s finger. There was a question of fact whether the elevation-differential was de minimis.

 

, ,

THE COMPLAINT IN THIS TRAFFIC ACCIDENT CASE STATED CAUSES OF ACTION (1) FOR FRAUDULENT INDUCEMENT TO SIGN A RELEASE AND (2) FOR RESCISSION OF THE RELEASE BASED UPON UNILATERAL MISTAKE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s complaint stated causes of action for fraudulent inducement (to sign a release) and for recsission of the release based on a unilateral mistake. Plaintiff in this traffic accident case alleged the defendant insurer fraudulently induced him to sign the release by telling him the release applied only to property damage, not to personal injury. Plaintiff alleged English was his second language, he did not have his reading glasses, and he relied on the insurance agent’s representations:

“To state a [cause of action to recover damages] for fraudulent inducement, there must be a knowing misrepresentation of material present fact, which is intended to deceive another party and induce that party to act on it, resulting in injury'” … . “The plaintiff must also establish that he or she reasonably relied upon the alleged misrepresentation” … . “A party is under an obligation to read a document before signing it, and cannot generally avoid the effect of the document on the ground that he or she did not read it or know its contents” … . However, “there are situations where an instrument will be deemed void because the signer was unaware of the nature of the instrument he or she was signing, such as where the signer is illiterate, or blind, or ignorant of the alien language of the writing, and the contents thereof are misread or misrepresented to him [or her] by the other party, or even by a stranger” … .

Here, the complaint stated a cause of action by Israel to recover damages for fraudulent inducement against Progressive and Roberts by alleging, inter alia, that English is Israel’s second language, his ability to read English is limited, and he justifiably relied on the misrepresentations made by Progressive’s agent, Roberts, as to the effect of the release, which has resulted in financial damages to him … .

Moreover, the complaint stated a cause of action by Israel, in effect, to rescind the release based on a unilateral mistake against Progressive and Roberts, as the complaint alleged that Israel’s mistake was induced by fraudulent misrepresentation … . Israel v Progressive Cas. Ins. Co., 2023 NY Slip Op 06357, Second Dept 12-13-24

Practice Point: Plaintiff alleged English was his second language, he didn’t have his reading glasses, he was told the release pertained only to property damage, not personal injury, and he relied on that representation. The complaint stated causes of action for fraudulent inducement and rescission of the release based on unilateral mistake.

 

,

APPELLANT, WHICH HAD PURCHASED THE PROPERTY WHILE THE FORECLOSURE ACTION WAS PENDING, SHOULD HAVE BEEN ALLOWED TO INTERVENE, CRITIERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to intervene in this foreclosure proceeding should have been granted. The foreclosure action was commenced by the plaintiff in 2007 and defendants never answered. When plaintiff moved for a default judgment, MAK (the appellant in this case), which had purchased the property while the foreclosure was pending, moved to intervene:

“Upon timely motion, any person shall be permitted to intervene in any action . . . 2. when the representation of the person’s interest by the parties is or may be inadequate and the person is or may be bound by the judgment; or 3. when the action involves the disposition or distribution of, or the title or a claim for damages for injury to, property and the person may be affected adversely by the judgment” ([CPLR] § 1012[a]). “‘[I]ntervention may occur at any time, provided that it does not unduly delay the action or prejudice existing parties'” … . “[N]either the fact that the appellant obtained its interest in the subject property after this action was commenced and the notice of pendency was filed, nor the fact that the defendants defaulted in answering or appearing, definitively bars intervention” … . “‘In examining the timeliness of the motion, courts do not engage in mere mechanical measurements of time, but consider whether the delay in seeking intervention would cause a delay in resolution of the action or otherwise prejudice a party'” … .

… MAK was entitled to intervene as of right “since it established that the representation of its interest by the parties would be inadequate, that the action involved the disposition of title to real property, and that it would be bound and adversely affected by a judgment of foreclosure and sale” … . Under the circumstances, MAK’s cross-motion … was timely. “Significantly, it was made in response to the plaintiff’s motion … for leave to enter a default judgment and for an order of reference, . . . [and] since it was made before an order of reference or a judgment of foreclosure and sale was issued, the plaintiff was not prejudiced by the timing of the cross motion” … . HSBC Bank USA, N.A. v Islam, 2023 NY Slip Op 06356, Second Dept 12-13-24

Practice Point: Here the party which purchased the property while the foreclosure on the property was pending should have been allowed to intervene when the plaintiff moved for a default judgment and an order of reference. The criteria for a successful motion to intervene in this context are explained.

 

, ,

IN A TRAFFIC ACCIDENT CASE A PLAINTIFF’S COMPARATIVE NEGLIGENCE CAN ONLY BE CONSIDERED ON A SUMMARY JUDGMENT MOTION IF THE PLAINTIFF MOVES TO DISMISS THE DEFENDANT’S COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff bicyclist’s motion for summary judgment in this traffic accident case should not have been granted. The court noted that plaintiff’s comparative negligence in a traffic accident case is usually not considered on a summary judgment motion except where, as here, plaintiff moved to dismiss the defendant’s comparative-negligence affirmative defense:

“A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant’s negligence was a proximate cause of the alleged injuries” … . A plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case against a defendant on the issue of that defendant’s liability … . “[However], the issue of a plaintiff’s comparative negligence may be decided in the context of a plaintiff’s motion for summary judgment on the issue of liability where, as here, the plaintiff also seeks dismissal of the defendant’s affirmative defense alleging comparative negligence”… . A motion for]summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b] …). On a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party … . Garutti v Kim Co Refrig. Corp., 2023 NY Slip Op 06354, Second Dept 12-13-24

Practice Point: If a plaintiff in a traffic accident case makes a motion for summary judgment which includes a motion to dismiss defendant’s comparative-negligence affirmative defense, the plaintiff’s comparative negligence can properly be considered by the motion court.

 

, ,

DEFENDANT PRESENTED SUFFICIENT SPECIFIC FACTS TO REBUT THE PRESUMPTION OF PROPER SERVICE OF THE SUMMONS AND COMPLAINT; A HEARING SHOULD HAVE BEEN HELD (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant Bloom was entitled to a hearing on whether she was served with the summons and complaint:

Here, the affidavit of the plaintiff’s process server indicated that the process server served Bloom at an address on Avenue W in Brooklyn (hereinafter the Avenue W address) by delivering a copy of the summons and complaint upon a cotenant, who was a person of suitable age and discretion, on May 4, 2019, and mailing a copy of the summons and complaint to Bloom at the Avenue W address on May 6, 2019. However, Bloom’s submission of a sworn statement in which she denied that she resided at the Avenue W address, and a copy of her driver license, which listed a different address as her residence at the time that service upon her was allegedly effectuated, contained specific facts to rebut the statements in the process server’s affidavit … . Therefore, the presumption of proper service upon Bloom was rebutted and the Supreme Court should have held a hearing to determine whether Bloom was properly served pursuant to CPLR 308(2) … . Garrick v Charles, 2023 NY Slip Op 06353, Second Dept 12-13-23

Practice Point: Here defendant presented specific facts sufficient to rebut the presumption of proper services of process. A hearing should have been ordered.

 

,

THE DOCUMENTS RELIED UPON FOR THE REFEREE’S REPORT WERE LISTED BUT NOT SUBMITTED, RENDERING THE REPORT INADMISSIBLE HEARSAY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report should not have been confirmed in this foreclosure action because, although the documents the referee relied on were listed, the documents were not submitted. Therefore the report was hearsay:

The Supreme Court erred in granting the plaintiff’s motion, inter alia, to confirm the referee’s report and for a judgment of foreclosure and sale. “The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” … . “However, computations based on the review of unidentified and unproduced business records . . . constitute inadmissible hearsay and lack probative value” … . Ridgewood Sav. Bank v Kapoor, 2023 NY Slip Op 06396, Second Dept 12-13-23

Practice Point: In a foreclosure action the fact that the documents relied upon for the referee’s report were identified was not enough. Because the documents were not submitted, the report constituted inadmissible hearsay.

 

, ,

DEFENDANT’S MOTION TO RENEW A MOTION FOR MORE TIME TO CONDUCT AN IME SHOULD HAVE BEEN GRANTED; CRITERIA EXPLAINED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the motion to renew should have been granted and defendant should have been granted more time to conduct an independent medical examination (IME) of plaintiff:

“A motion for leave to renew or reargue is addressed to the sound discretion of the Supreme Court” … . A motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (CPLR 2221[d][2]). A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” … and “shall contain reasonable justification for the failure to present such facts on the prior motion” … . “A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought” … . …

The Supreme Court improvidently exercised its discretion in denying, without prejudice, that branch of the defendant’s motion which was for leave to renew. The defendant presented new facts and a reasonable justification for failing to present such facts on the prior motion, and demonstrated that the new evidence would have changed the prior determination … . Moreover, the papers submitted by the defendant in support of the motion, as supplemented by the papers submitted by the plaintiff, which expressly incorporated the plaintiff’s prior opposition, were sufficient to determine the motion …. Fulcher v Empire State Grand Council Ancient & Accepted Scottish Rite Masons, Inc., 2023 NY Slip Op 06352, Second Dept 12-13-24

Practice Point: The motion to renew presented new facts and a reasonable justification for failing to present those facts in the prior motion. The motion should have been granted.

 

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