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ALTHOUGH THERE WAS PROOF THE 90-DAY NOTICES WERE MAILED TO THE PRO SE PLAINTIFFS, THERE WAS ALSO PROOF THE MAIL WAS NOT DELIVERED AND WAS RETURNED; WITHOUT PROOF PLAINTIFFS ACTUALLY RECEIVED THE 90-DAY NOTICES, THE COURT SHOULD NOT HAVE DISMISSED THE ACTION FOR WANT OF PROSECUTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to dismiss the action for want of prosecution should not have been granted. Although there was proof defendants (the Cohens) mailed the 90-day notices to the pro se plaintiffs, there was no proof the notices were received (the mailings were returned):

In August 2023, more than a year after the expiration of the stay, the Cohens moved … pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute. In support of the motion, the Cohens submitted evidence that in August 2022 they mailed 90-day demands pursuant to CPLR 3216(b)(3) to the plaintiffs, who were then pro se, by certified mail. The Cohens also submitted evidence, however, that the mailings were returned to them. The United States Postal Service tracking history submitted by the Cohens indicated that one delivery was attempted and that five days later a reminder was sent to schedule redelivery before the mailings were returned to the sender. * * *

CPLR 3216 permits a court to dismiss an action for want of prosecution only after the court or the defendant has served the plaintiff with a written demand requiring the plaintiff “to resume prosecution of the action and to serve and file a note of issue within [90] days after receipt of such demand” … . “Notably, the time within which the plaintiff must act runs from the receipt, and not the service of the demand” … . Here, in support of their motion, the Cohens submitted proof that the 90-day demands were not received by the plaintiffs. Kurbonov v Cohen, 2026 NY Slip Op 01044, Second Dept 2-25-26

Practice Point: To support a motion to dismiss for want of prosecution, the defendant must proof the 90-day notice was actually received by the pro se plaintiff. Proof of mailing is not enough.

 

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THE PEOPLE DID NOT DEMONSTRATE DEFENDANT’S VEHICLE WAS PROPERLY IMPOUNDED; THEREFORE THE ITEMS SEIZED DURING THE SUBSEQUENT INVENTORY SEARCH SHOULD HAVE BEEN SUPPRESSED; CONVICTIONS VACATED (SECOND DEPT).

The Second Department, reversing the denial of defendant’s suppression motion and vacating the convictions, determined the People did not demonstrate the proper procedure for impounding defendant’s vehicle (which was subjected to an inventory search) was followed:

The People failed to establish the lawfulness of the impoundment of the defendant’s vehicle and subsequent inventory search … . At a suppression hearing, the arresting officer equivocated on whether or not the vehicle was parked legally on the street, and he did not testify as to the posted time limits pertaining to the parking space at which the defendant had pulled over. Although the officer testified that he had to impound the vehicle to safeguard it at the precinct station house and “for further investigation,” the People presented no evidence demonstrating any history of burglary or vandalism in the area where the defendant had pulled over the vehicle. Thus, the People failed to establish that the impoundment of the vehicle was in the interests of public safety or part of the police’s community caretaking function … . Moreover, the People failed to present any evidence as to whether the New York City Police Department had a policy regarding impoundment of vehicles, what that policy required, or whether the arresting officer complied with that policy when he impounded the defendant’s vehicle … .

Accordingly, the impoundment of the defendant’s vehicle was unlawful, and the physical evidence that was recovered from the vehicle during the inventory search subsequent to that impoundment must be suppressed as fruits of the unlawful impoundment … . People v McClarin, 2026 NY Slip Op 01076, Second Dept 2-25-26

Practice Point: Consult this decision for insight into the valid grounds and procedures for impounding a vehicle and the consequences of improperly impounding a vehicle. Here all the items seized in an inventory search after the improper impoundment were suppressed and the convictions were vacated.

 

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HERE THE SCHOOL DISTRICT HAD ACTUAL KNOWLEDGE OF THE NATURE OF EACH NEGLIGENT-SUPERVISION CLAIM WITHIN 90 DAYS OF THE INCIDENTS; WHERE A SCHOOL HAS TIMELY ACTUAL KNOWLEDGE OF THE FACTS UNDERLYING A CLAIM, THE ABSENCE OF AN ADEQUATE EXCUSE FOR FAILING TO TIMELY FILE A NOTICE OF CLAIM IS NOT A BAR TO GRANTING LEAVE TO FILE A LATE NOTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim against defendant school district should been granted. The petition alleged negligent supervision a student who was assaulted, harassed, and bullied on specific occasions. There were contemporaneous incident reports. The school district, therefore, had knowledge of the nature of the claims within 90 days of each incident:

… [T]he petitioner established that the School District had actual knowledge of the essential facts constituting the claim within 90 days of each incident included in the notice of claim. The petitioner submitted, among other things, incident reports and documentation of investigations conducted by the School District within days of the incidents … , police reports that documented communications and an investigation by school officials … , an electronic communication between the petitioner and a school official … , and an “[a]ction [p]lan” created pursuant to a meeting between the petitioner and school officials where the alleged wrongful conduct and the plans to monitor the students and address the conduct were discussed … .

As the petitioner demonstrated that the School District acquired timely knowledge of the essential facts constituting the claim, the petitioner met her initial burden of showing that the School District would not be prejudiced by the late notice of claim … . In opposition to the petitioner’s initial showing, the School District failed to come forward with particularized evidence showing that the late notice had substantially prejudiced its ability to defend the claim on the merits … .

Although the petitioner failed to demonstrate a reasonable excuse for her failure to timely serve the notice of claim, “where, as here, there is actual knowledge and an absence of prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late notice of claim” … . Matter of Polito v North Babylon Sch. Dist., 2026 NY Slip Op 01067, Second Dept 2-25-26

Practice Point: In the context of a petition for leave to file a late notice of claim against a school district, the absence of a reasonable excuse for timely filing the claim may be overlooked where it is demonstrated the school had timely knowledge of the facts underlying the claims.

 

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A POLICE CAR RESPONDING AN EMERGENCY CALL SWERVED INTO A TURN LANE TO PASS A CAR AND STRUCK A SKATEBOARDER; THERE WERE QUESTIONS OF FACT WHETHER THE OFFICER ACTED WITH “RECKLESS DISREGARD FOR THE SAFETY OF OTHERS” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined (1) the “reckless disregard” standard for liability applied to this accident involving a police car and a skateboarder, and (2) the county defendants did not eliminate all questions of fact about whether the “reckless disregard” standard was met. The officer was responding a call from a woman in labor with complications. The officer struck the skateboarder, who was in a turn lane, when the officer swerved into the turn lane to pass a car:

The “reckless disregard” standard demands more than a showing of a lack of “due care under the circumstances” … . “It requires evidence that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow and has done so with conscious indifference to the outcome” … . “This standard requires a showing of more than a momentary lapse in judgment” … .

Here, the defendants established that the reckless disregard standard of Vehicle and Traffic Law § 1104 was applicable to Degere’s [the officer’s] conduct because he was responding to a radio call of a woman going into labor with complications … . However, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint because their moving papers failed to eliminate all issues of material fact regarding whether Degere acted recklessly by either traveling at a high speed in the center turn lane in a school zone with poor lighting conditions or abruptly merging into the center turn lane without first looking to his left or activating his turn signal … . Moccasin v Suffolk County, 2026 NY Slip Op 01049, Second Dept 2-25-26

Practice Point: Consult this decision for insight into what constitutes “reckless disregard for the safety of others” within the meaning of Vehicle and Traffic Law 1104 in the context of a police officer responding to an emergency call.

 

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FAMILY COURT SHOULD NOT HAVE DELEGATED ITS AUTHORITY TO DETERMINE PARENTAL ACCESS BY CONDITIONING ACCESS ON THE CONSENT OF THE CHILDREN (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined the court should not have delegated its authority to determine parental access by conditional parental access on the consent of the children:

… “[A] court may not delegate its authority to determine parental access to either a parent or a child” … . Here, the Family Court improperly delegated its authority to determine the father’s and the mother’s parental access with Destinee A. and Kaylee A. to those children. … [W]e remit the matter to the Family Court … for a new determination as to the father’s and the mother’s parental access with Destinee A. and Kaylee A. in accordance with the best interests of those children … . Matter of Destinee A. (Jacquelyn M.), 2026 NY Slip Op 00890, Second Dept 2-18-26

Practice Point: A Family Court judge cannot delegate his/her/their authority to determine parental access to the parties or the children.

 

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PLAINTIFF ALLEGED DEFENDANT NEGLIGENTLY PERFORMED A ROBOTIC ASSISTED LAPAROSCOPIC ADRENALECTOMY; PLAINTIFF’S EXPERT, A GENERAL SURGEON WHO WAS EXPERIENCED IN LAPAROSCOPIC SURGERY, BUT NOT ROBOTIC SURGERY, SHOULD NOT HAVE BEEN PRECLUDED FROM TESTIFYING; THE LACK OF EXPERIENCE WITH ROBOTIC SURGERY WENT TO THE WEIGHT OF THE TESTIMONY, NOT ITS ADMISSIBILITY (SECOND DEPT).

The Second Department, reversing Supreme Court’s dismissal of the medical malpractice complaint, determined the testimony of the plaintiff’s expert, a general surgeon, should not have been precluded on the ground he was not qualified to testify about robotic surgery. The complaint alleged the defendant negligently performed a robotic assisted laparoscopic adrenalectomy:

“A medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field, but the witness should be possessed of the requisite skill, training, education, knowledge, or experience from which it can be assumed that the opinion rendered is reliable” … . Here, the plaintiff’s expert, a board certified general surgeon, testified that he had knowledge of adrenalectomies and the splenic vein based on his education and training, had performed surgeries involving the adrenal gland, and had extensive experience performing laparoscopic surgeries, and he opined that the principles of good surgical practice with respect to the isolation, preservation, and protection of adjacent organs were the same regardless of whether a surgery was performed openly, laparoscopically, or robotically. This testimony was sufficient to demonstrate that the plaintiff’s expert was qualified to render an opinion regarding the standard of care for a robotic assisted laparoscopic adrenalectomy … . The expert’s lack of experience in performing robotic assisted laparoscopic adrenalectomies goes to the weight of his testimony, not its admissibility … . Lynch v Wang, 2026 NY Slip Op 00887, Second Dept 2-28-26

Practice Point: A medical expert need not be a specialist in a particular field to testify about accepted practices in that field. Here the plaintiff alleged defendant negligently performed robotic surgery. Plaintiff’s expert, a general surgeon who was not experienced in robotic surgery, should not have been precluded from testifying.

 

ALTHOUGH DEFENDANT HAD JURISDICTIONAL GROUNDS FOR VACATING THE JUDGMENT, HE WAIVED ANY JURISDICTIONAL ISSUES BY PARTICIPATING IN AN EXAMINATION UNDER OATH BEFORE MOVING TO VACATE THE JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant had waived any jurisdictional (improper service and notice) issues by participating in an examination under oath in connection with the underlying renewal-judgment enforcement proceeding. Defendant had defaulted in the renewal-judgment proceeding and summary judgment had been awarded to plaintiff. After participating in the examination under oath, the defendant moved to vacate the renewal judgment, arguing the court lacked jurisdiction to render the judgment. Supreme Court granted the motion:

“‘[I]mproper service of a motion provides a complete excuse for default on a motion and deprives the court of jurisdiction to entertain the motion'” … , and “‘the failure to provide a defendant with proper notice of a motion renders the resulting order and judgment entered upon that order nullities, warranting vacatur pursuant to CPLR 5015(a)(4)'” … .

However, “‘[w]hen a defendant participates in a lawsuit on the merits, he or she indicates an intention to submit to the court’s jurisdiction over the action, and by appearing informally in this manner, the defendant confers in personam jurisdiction on the court'” … .

Here, the defendant made an informal appearance in the action by appearing for the examination under oath in connection with the enforcement of the renewal judgment, which went to the merits of this action. Bharath v Sitaram, 2026 NY Slip Op 00872, Second Dept 2-18-26

Practice Point: Here defendant waived any jurisdictional issues related to improper service and notice by participating in an examination under oath.

 

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THE DEFAMATION SUIT BY PLAINTIFF MARINA OWNER AGAINST AN ENVRONMENTAL ADVOCACY ORGANIZATION AND A PUBLISHER WAS A STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP); DEFENDANT WAS ABLE TO SHOW ONE PUBLISHED STATEMENT WAS FALSE; THEREFORE THE ACTION CAN PROCEED WITH RESPECT TO THAT ONE STATEMENT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the action by plaintiff marina-owner against defendant environmental advocacy organization and defendant publisher was a strategic lawsuit against public participation (SLAPP). Therefore the burden shifted to plaintiff to demonstrate there was a substantial basis in law to allege that published statements were false. The Second Department found that all but one of the statements were truthful on nonactionable statements of opinion. The claim that the marina would encompass four times the area of the present marina was the one statement for which there was a substantial basis in law for claiming it to be defamatory:

In 1992, New York enacted legislation to provide protection from a strategic lawsuit against public participation (hereinafter SLAPP suit) that is, a lawsuit characterized as having little merit, brought in retaliation for making public comment on matters of civic significance (see Civil Rights Law §§ 70-a, 76-a …). The anti-SLAPP law … accomplishes its protective goal by providing expedited processes for a defendant to obtain dismissal of a SLAPP suit (see CPLR 3211 [g]; 3212 [h]) and by allowing awards of counsel fees and damages to a defendant targeted by a such a lawsuit (see Civil Rights Law § 70-a). When a defendant moves to dismiss a complaint under CPLR 3211 (g), it is the defendant’s initial burden to show that the lawsuit is indeed a SLAPP suit … . If that burden is met, the motion to dismiss must be granted unless the plaintiff can demonstrate that its action has “a substantial basis in law, which requires such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” … . Under this unique framework, “which is, in effect, an accelerated summary judgment procedure” … , a court is required to consider the pleadings as well as affidavits submitted by the parties setting forth the relevant facts (see CPLR 3211 [g] [2]). * * *

As for the question of whether the instant action constitutes a SLAPP suit, we find that it does. * * *

… [T]he burden shifted to plaintiff to demonstrate that its defamation claim had a substantial basis in law. In an effort to satisfy this burden, plaintiff asserted that five of the claims contained within the published statement were false. Supreme Court disagreed, siding with defendants’ position that each of the contested claims was either truthful or a nonactionable expression of opinion. We concur with the court relative to all but one of the claims. A portion of the statement indicated that plaintiff “wants to replace 8,600 square feet of dock . . . with 34,000 feet of commercial marina for 93 motorized boat slips. That’s a four-fold increase.” … [T]he record reveals that, in arriving at those figures, [defendant] used inconsistent measurements. … [W]e are satisfied that plaintiff met its corresponding burden of establishing that part of its defamation claim had a substantial basis in law, and as a result defendants’ motions to dismiss should have been denied to the extent of allowing the defamation claim to proceed as to that one statement. USL Mar., LLC v Adirondack Wild: Friends of the Forest Preserve, 2026 NY Slip Op 00953, Second Dept 2-18-26

Practice Point: Consult this opinion for insight into how the expedited summary-judgment procedure works for a lawsuit that meets the criteria for a strategic lawsuit against public participation (SLAPP). Here plaintiff met its burden to proceed on one allegedly defamatory statement.

 

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THE MOTION TO INTERVENE BY AN INSURER SEEKING SUBROGATION FOR A CLAIM ALREADY PAID IN THIS VEHICLE-ACCIDENT CASE WAS TIMELY UNDER THE RELATION-BACK DOCTRINE; THE PAID CLAIM STEMMED FROM THE ACCIDENT WHICH IS THE SUBJECT OF THE ONGOING LITIGATION; THE MOTION TO INTERVENE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the insurer, Utica, which paid out $775,000 to plaintiff under an uninsured motorist policy purchased by plaintiff’s employer, was entitled intervene seeking subrogation in a lawsuit stemming from the same accident. Although the motion to intervene was untimely, it should have been granted under the relation-back doctrine. Plaintiff was struck by a vehicle while working at a construction site:

… Utica’s subrogation cause of action is not time-barred, as it merely seeks reimbursement for coverage tendered for the plaintiff’s personal injuries. This cause of action arises out of the same occurrence that gave rise to the plaintiff’s causes of action and includes the same questions of liability related to the accident. It is, therefore, similar enough to the plaintiff’s causes of action that the defendants were thereby placed on notice of the insurer’s claim … . * * *

“‘Subrogation is the principle by which an insurer, having paid losses of its insured, is placed in the position of its insured so that it may recover from the third party legally responsible for the loss'” … . “Subrogation is an equitable doctrine that allows an insurer to ‘stand in the shoes of its insured to seek indemnification from third parties whose wrongdoing has caused a loss for which the insurer is bound to reimburse'” … . “Thus, the insurer can only recover if the insured could have recovered and its claim as subrogee is subject to whatever defenses the third party might have asserted against its insured” … .

Here, Utica’s cause of action for subrogation has common questions of law and fact with the plaintiff’s causes of action, as Utica concedes that the proposed complaint “mirrors, in all respects, the complaint in the within suit.” By intervention, Utica stands in the shoes of the plaintiff. Utica would be bound by the judgment in this case and, without intervention, its interests are not represented. Further, there would be no prejudice to the defendants, as intervention would not cause delay, a need for additional discovery, or motion practice. Steward v Brooklyn Pier 1 Residential Owner, LP, 2026 NY Slip Op 00933, Second Dept 2-18-26

Practice Point: Here the relation-back doctrine was applied to render a motion to intervene timely.

Practice Point: Consult this decision for insight into the criteria for a subrogation action.

 

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PLAINTIFF WAS INJURED WORKING UNDER GTLF’S SUPERVISION; GTLF HAD HIRED ATRIUM, PLAINTIFF’S GENERAL EMPLOYER, TO HANDLE CERTAIN ASPECTS OF PLAINTIFF’S EMPLOYMENT, INCLUDING PAYROLL AND WORKERS’ COMPENSATION INSURANCE; PLAINTIFF RECEIVED WORKERS’ COMPENSATION BENEFITS FROM ATRIUM FOR A WORK-RELATED INJURY; GTLF, AS PLAINTIFF’S SPECIAL EMPLOYER, CANNOT BE SUED IN NEGLIGENCE BY PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined GTLF was plaintiff’s special employer and Atrium was plaintiff’s general employer. The Workers’ Compensation Board determined plaintiff was entitled to Workers’ Compensation benefits from Atrium, his general employer, for a work-related injury. Therefore, plaintiff could not sue GTLF, his special employer, in negligence based upon that work-related injury. GTLF was entitled to summary judgment:

For purposes of the Workers’ Compensation Law, a person may be deemed to have more than one employer—a general employer and a special employer … . “The receipt of Workers’ Compensation benefits from a general employer precludes an employee from commencing a negligence action against a special employer” … .

“In determining whether a special employment relationship exists, ‘who controls and directs the manner, details and ultimate result of the employee’s work’ is a ‘significant and weighty feature,’ but is not determinative of the issue” … . Indeed, “[m]any factors are to be considered when deciding whether such a special employment relationship exists and not one factor is decisive” … . Other principal factors to be considered include “who is responsible for the payment of wages and the furnishing of equipment, who has the right to discharge the employee, and whether the work being performed was in furtherance of the special employer’s or the general employer’s business” … . General employment will be presumed to continue unless there is a “clear demonstration of surrender of control by the general employer and assumption of control by the special employer” … .

Here, in addition to a transcript of the plaintiff’s deposition testimony and a copy of the agreement between GTLF and Atrium, GTLF submitted an affidavit of its CEO, who averred, among other things, that after GTLF retained Atrium for “certain aspects of [the] plaintiff’s employment, including payroll and Workers’ Compensation insurance . . . [GTLF] maintained the same supervision and control of the plaintiff regarding his duties as a” brand ambassador. Based upon this evidence, GTLF established, prima facie, that GTLF was the plaintiff’s special employer … . Samuel v Petainer, 2026 NY Slip Op 00925, Second Dept 2-18-26

Practice Point: Consult this decision for insight into how to determine whether an employer is a general employer or a special employer for purposes of Worders’ Compensation benefits. If a worker receives Workers’ Compensation benefits from the worker’s general employer for a work-related injury, the employee cannot sue the special employer in negligence for that same injury.

 

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