NOTE FROM THE EDITOR:
Happy New Year!
I’m proud to introduce our two newest admitted attorneys, Buffalo Premises Pointers Columnist Zachary J. Raber and Rochester Litigation Attorney James J. Crowley. Both were admitted earlier this month, and we are so happy to welcome them to the team. Their addition puts us at over 60 attorneys across New York State and Connecticut serving our clients.
This week, we are kicking off our monthly educational litigation defense webinar series. On Wednesday, January 28th at 12pm, our Retail & Hospitality Liability Team of Anastasia M. McCarthy, Elizabeth K. Ognenovski and myself will present “Navigating Claims, Crime, and Consequences in Retail.” This presentation will explore the evolving risks and legal exposures impacting the retail industry, including incidents involving intentional or reckless violence, claims against asset protection personnel, and liability issues arising from the sale of firearms. We invite you to sign up and spend your lunch hour with us!
Attendees will gain practical guidance on evaluating and managing these complex claims, recognizing emerging trends, and mitigating risk in an increasingly challenging retail environment. For more information and to register, click here.
Next month, our Child Victims Act & Sexual Misconduct Coverage & Defense Team, Michael J. Williams and Jeremiah E. Lenihan, will explore one of the most critical defenses available to clients with national and international reach: general and specific personal jurisdiction on Tuesday, February 17th at 12pm. The Supreme Court of the United States has spent the last 15 years evolving these doctrines in a manner respecting defendants’ due process rights while state case law myopically focuses on its own long-arm statutes. This webinar explores how Mike and Jerry have used these doctrines nationally and internationally to defend nonprofit organizations, religious institutions, retail giants, and foreign corporations including those of sovereign Native nations. Attendees will learn how to identify their opportunities to raise this surprisingly expansive defense, compel plaintiffs to proceed in a chosen and more defense-advantageous venue, avoid the costs and disclosures of discovery, and incentivize dismissal or economical resolution. For more information and to register, click here.
We also have many other educational webinars coming up soon from our Labor Law and Insurance Coverage teams. For an up-to-date listing, click here.
I hope you’re staying warm and safe during this winter storm this week!
-Jody
Don’t forget to subscribe to our other publications:
Coverage Pointers: This biweekly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected] to be added to the mailing list.
Labor Law Pointers: Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law case decided during the month by the Court of Appeals and all four Departments. This e-mail direct newsletter is published the first Wednesday of each month on four distinct areas – New York Labor Law Sections 240(1), 241(6), 200 and indemnity/risk transfer. Contact Dave Adams at [email protected] to subscribe.
Medical & Nursing Home Liability Pointers: Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Liz Midgley at emm@hurwitzfine.com to subscribe.
Products Liability Pointers: This monthly newsletter covers all areas of products liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies. Contact Chris Potenza at [email protected] to subscribe.
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Retail, Restaurant and Hospitality Happenings in the 2nd Circuit and Beyond
By: Jody E. Briandi [email protected]
This month we have two cases from the Eastern District of New York, both involving Home Depot, and one case from the district court in Nevada involving Target that raised several interesting issues regarding the admissibility of an expert and a spoliation claim.
1/6/2026 Boris Caicedo v. Home Depot USA, Inc
United States District Court, Eastern District of New York
Home Depot’s summary judgment motion granted based on no evidence of notice and plaintiff’s cross-motion for sanctions was denied.
Caicedo went to the Gateway Drive Home Depot on April 4, 2021 with two coworkers to purchase fencing, first entered the lumber aisle to check availability, then returned with carts, and fell on his back as he walked toward a coworker; he did not know why he fell until, once on the floor, he smelled “mechanic grease,” saw his clothing and hands were greasy, and then noticed a roughly three‑foot puddle he had not seen before the fall. Home Depot used an opening “store readiness” checklist under which a manager walks the aisles each morning; Assistant Manager Carey Kelly testified he completed that checklist on the accident date, noted no spills or debris in lumber, that no liquid products were sold in or near that aisle, and that associates continually walk the store for hazards, block off any spills, and notify a manager. A lumber associate, Warren Britt, and coworker Louis Edmond had brought in a crate of fencing on a propane forklift about five minutes before the accident, but Britt saw no liquid when they set the crate down; Edmond testified forklift leaks were rare and he had no knowledge of this accident, and a six‑month maintenance record search revealed no repair orders indicating forklift liquid leaks. Kelly’s contemporaneous written statement recorded Caicedo as saying he slipped while pulling out a vinyl panel due to water coming from the fencing, but Kelly himself did not see any liquid on the floor, no prior customer complaints about leaking fencing had been made, and incident and checklist records showed the aisle clear of spills each morning for the week around the accident.
Applying New York substantive law but federal Rule 56, the court reiterated that plaintiff had to produce evidence that Home Depot either created the dangerous condition or had actual or constructive notice; federal procedure allowed Home Depot to prevail by pointing to the absence of proof on those elements rather than making a prima facie showing as under New York’s state standard. On creation, the court held plaintiff offered no evidence of any deliberate, affirmative act by Home Depot or its employees that put liquid on the floor; criticisms of inspection procedures, lack of additional written logs, and speculative references to “defective hi‑lo machines” and possible forklift leaks at most alleged failures to act, which are insufficient to show creation under New York law. On actual notice, the court found no evidence that any employee observed the puddle or received complaints before the fall, stressing that plaintiff’s reliance on gaps in defendant’s records could not substitute for affirmative proof of actual awareness of the specific condition. On constructive notice, the court held there was no evidence the condition was visible and apparent for a sufficient time: neither Caicedo nor any employee saw the puddle beforehand, plaintiff offered no proof of how long it existed, and his theory that a forklift used five minutes earlier leaked was purely speculative; he also produced no evidence of a recurring leak issue in that aisle, and his “failure to inspect” theory failed because he could not show that a reasonable inspection would have discovered the condition given the lack of any duration evidence.
The court also rejected plaintiff’s cross‑motion for sanctions based on alleged spoliation of forklift maintenance records, crediting Home Depot’s explanation and supplemental production (via a senior equipment manager and data spreadsheet) that no relevant leak‑repair attachments ever existed; even assuming some discovery missteps, the court found preclusion under Rule 37(c)(1) unwarranted given the late but corrective disclosures and the modest prejudice. Concluding that plaintiff had not raised a genuine issue of material fact on creation, actual notice, or constructive notice, and that the speculative inferences about forklifts and inspections did not satisfy his burden under Celotex and Matsushita, the court granted Home Depot’s summary‑judgment motion
1/8/2026 Bennett v. Home Depot USA, Inc
United States District Court, Eastern District of New York
Home Depot again prevailed on summary judgment due to a lack of evidence establishing Home Depot create the condition or had notice of it.
The court granted summary judgment to Home Depot in a premises liability action arising from a slip and fall on a pool of detergent in the Levittown store. On February 16, 2023, plaintiff Charlene Bennett entered Aisle 19, the cleaning aisle, observed no hazards on the floor, and slipped as she reached for a container of Ajax on a lower shelf, later seeing she was lying in a dinner‑plate‑sized pool of light‑blue detergent that appeared to have leaked from a container on the same shelf. Assistant manager Herold Abraham responded within minutes, saw powder over liquid on the floor, took a photo, and testified that employees and managers routinely walk the floor to look for hazards, although they do not document inspections, and that there were no prior complaints or similar incidents in that aisle, a conclusion supported by a three‑year incident search. Applying New York substantive law but federal procedural law, the court held that under Rule 56 the plaintiff bore the burden to produce evidence creating a genuine dispute as to whether Home Depot created the condition or had actual or constructive notice of it. The court found no evidence of an affirmative act by Home Depot creating the spill, no proof any employee knew of the spill before the fall, and no evidence that the detergent was visible and apparent for a sufficient time to permit discovery and remediation, noting that Bennett herself had not seen the spill beforehand and could not say how long it had been present. Because plaintiff failed to raise a triable issue on creation, actual notice, or constructive notice, the court concluded that no reasonable jury could find Home Depot liable and granted the motion for summary.
1/22/26 Doumat v. Target Corp.
United States District Court, District of Nevada
Two evidentiary issues were decided in Target’s favor in this case: one involved a sanctions motion for failing to preserve surveillance video—while denied it was denied without prejudice—and other recommending that Target’s motion to strike the plaintiff’s’ expert be granted.
In this slip‑and‑fall juice spill incident in a Target store, the issues before the court involved a spoliation motion and a Daubert challenge to plaintiff’s retail‑safety expert. Plaintiff Zaina Doumat slipped but did not fall on juice on the sales floor and sued Target for negligence. She moved for sanctions against Target based on Target’s failure to preserve store video, while Target moved to strike plaintiff’s expert, Alan (Alex) Balian. On the spoliation issue, the court found that video footage of Doumat in the store was destroyed, that Target’s duty to preserve arose at least when plaintiff’s counsel sent a preservation letter specifying that all video for three hours around the incident be retained, that Target was at least negligent in not preserving any footage of her in the store, and that the missing footage was relevant because it could have shown her condition, movements, and pain level after the slip given Target’s use of RFAs about her remaining in the store, standing in line, and paying for purchases. However, applying Rule 37(e), the court held the Rule 37(e)(2) “intent to deprive” standard was not met, so default judgment or an adverse‑inference instruction was unavailable, but that curative measures under Rule 37(e)(1) were theoretically warranted; however, because plaintiff had not proposed tailored lesser sanctions, the court denied her spoliation motion without prejudice.
Next, on Target’s Daubert motion, the court accepted Balian’s qualifications in retail operations but found his opinions unreliable under Rule 702 and Daubert. Balian opined about general retail practices (e.g., inspections at least hourly, camera placement in “critical” areas) and Target’s specific alleged failures (lack of surveillance of the aisle, lack of written procedures to ensure clean floors), but the court held he did not adequately connect those conclusions to any articulated methodology, specific experience, or particular evidence in the case; his report consisted largely of generalized assertions and bare conclusions rather than reasoned application of specialized knowledge. Because plaintiff did not carry the burden of showing Balian’s methodology was reliable or that his opinions were more than subjective belief, the magistrate recommended granting Target’s motion to strike his report and exclude his expert testimony.
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Are You Fall Real? A Monthly Slip‑and‑Fall Survey from Storm in Progress to Espinal
By: Patrice C.S. Melville [email protected]
Hi Readers,
Slip-and-fall cases often turn less on how an accident happened and more on what a property owner can prove after the fact. Recent appellate decisions serve as a reminder that defenses such as “out-of-possession landlord” and “lack of notice” rise or fall on competent, documented proof—not speculation or mere conclusions about who handles day-to-day maintenance or reliance on routine snow and ice removal practices. Courts continue to make clear that general maintenance protocols, standing inspections, or customary snow-removal routines—without time-and location-specific evidence—are insufficient to eliminate constructive notice as a matter of law. Where ownership, control, and notice of a recurring condition are blurred by conflicting testimony, summary judgment may remain out of reach, leaving liability questions for a jury to decide.
1/22/2026 Medina v. 217 LLC
Appellate Division, First Department
Without Competent Evidence Of Surrendered Control, Property Owners Cannot Rely On An Out-Of-Possession Defense At Summary Judgment; Conflicting Testimony About A Long-Standing Leak Was Enough To Raise Triable Issues Of Notice And Defeat Summary Judgment.
Plaintiff alleges that she slipped and fell on a wet floor after water that leaked through a skylight accumulated on top of the stairs on the fifth-floor landing at a building owned by defendant. The defendant property owner moved for summary judgment dismissal arguing that the they were an out-of-possession. The Court denied the motion. Defendant appealed.
On appeal, the First Department held that the defendant failed to establish that it is an out-of-possession landlord with no duty to maintain the premises. Although defendant asserted that their nonparty management company maintained the premises on a daily basis, they did not submit “any primary or other competent evidence” demonstrating that it had relinquished possession or control so as to absolve it of its duty to maintain the premises. The First Department also held that there were questions of fact as to whether the defendant property owner had actual or constructive notice of the water leak as the building handyman testified that he inspected the premises every morning, and that he never saw nor received complaints regarding leaks from the skylight. However, plaintiff testified that it had rained the previous day, as well as the morning of the incident, that her employer, a resident of defendant’s building, told her that water had been collecting on that landing when it rained “for many years,” and that plaintiff passed along her employer’s complaints to the building’s superintendent prior to her accident. Plaintiff's failure to notice the wet condition of the floor prior to her fall does "not conclusively establish [defendant's] lack of notice. Ultimately, the First Department affirmed the lower court ruling.
01/21/2026 Jackson v A M E Zion-Trinity Hous. Dev. Fund Co., Inc.
Appellate Division, Second Department
Routine Snow-Removal Practices Alone Are Not Enough To Eliminate Constructive Notice At Summary Judgment.
The plaintiff allegedly sustained personal injuries when he slipped and fell on a patch of ice in the parking lot of Harriet Tubman Terrace Apartments. The plaintiff commenced this action against the defendants, asserting that they either created the icy condition or had actual or constructive notice of it.
The defendants moved for summary judgment dismissing the complaint. The Supreme Court, Dutchess County, granted summary judgment dismissing so much of the complaint as alleged constructive notice of the icy condition. The remaining claim—alleging that the defendants created the condition—proceeded to trial and was ultimately dismissed by judgment. The plaintiff appealed from both the order and the judgment. The Appellate Division dismissed the appeal from the order as academic but reviewed the merits on the appeal from the judgment.
On appeal, the Second Department found that the defendants failed to establish that they lacked constructive notice of the alleged icy condition as their maintenance employee provided only general information about his snow and ice removal practices, and he failed to specify when he last salted, removed ice from, or inspected the area where the plaintiff fell relative to the time of the accident. as such, the Second department held that the Supreme Court should have denied that branch of their motion which was for summary judgment dismissing so much of the complaint as alleged constructive notice of the allegedly defective condition without regard to the sufficiency of the plaintiff's opposition papers
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Slips, Trips, and Legal Shifts: The Latest Retail, Restaurant and Hospitality Updates in New York State
By: Elizabeth K. Ognenovski [email protected]
Hello Readers,
As a large snowstorm approaches and much of the country prepares to stay safe and warm, it is a timely reminder that accidents can happen in any season and in a wide range of settings. Whether indoors or out, property conditions remain a frequent source of litigation when someone is injured in a fall.
Against this backdrop, below are two (2) new cases analyzing issues which often determine liability on a slip/trip and fall case: whether a dangerous condition actually existed at the time of an incident and whether a plaintiff can identify what caused their fall.
1/21/2026 Crayton v. Elegant Restaurant Equipment & Supplies, Inc. et al.
Appellate Division, Second Department
“The issue of whether a dangerous or defective condition exists depends on the facts of each case and is generally a question of fact for the jury.”
The plaintiff commenced a personal injury action after she was allegedly injured while shopping for a table at the defendant Elegant Restaurant Equipment & Supplies’ premises. Elegant was located in a building owned by the defendant AAK Holdings, LLC. At the time of her incident, the plaintiff was climbing up a ladder that was leaned against a wall to a mezzanine level to access the location of the tables. She was injured when the ladder fell from under her feet while she was standing on the third or fourth rung. The defendant AAK filed a motion for summary judgment to dismiss the amended complaint and cross-claims and the Queens County Supreme Court denied the motion.
On appeal, the Second Department affirmed the lower court’s holding. The Court explained that “a property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition. A defendant moving for summary judgment dismissing a premises liability cause of action has the initial burden of making a prima facie showing that it neither created the defective condition nor had actual or constructive notice of its existence.” The Second Department determined that the defendant AAK failed to establish its prima facie entitlement to judgment as a matter of law. AAK failed to demonstrate that a hazardous condition did not exist as to accessing the mezzanine level.
1/21/2026 Clerveau v. Green Vil. Meat Mkt. Corp.
Appellate Division, Second Department
“A plaintiff's inability to identify the cause of their fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.”
The plaintiff was allegedly injured after she tripped and fell on a sidewalk that abutted the defendants Nostrand Finest Meats, Inc., and 1861 Nostrand Ave., LLC’s property. The defendants filed a motion for summary judgment to dismiss the complaint on the basis that the plaintiff was unaware as to what caused her fall. The Kings County Supreme Court denied the motion.
On appeal, the Second Department affirmed. The Court held the defendants failed to establish that the plaintiff was “unable to identify the cause of her fall.” Per plaintiff’s deposition transcript, she “sufficiently” identified the cause of her fall. Any contradiction in plaintiff’s testimony would have raised an issue of fact but the Court determined the defendants never met their initial burden.
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Discovery, Trial and Procedural Updates and Pitfalls
By: Zachary J. Raber [email protected]
Hi all
January brought its familiar trio: a difficult end to the Bills season, true Buffalo winter weather, and decisions from courts at both the state and federal levels. With that backdrop, I’m excited to share my first column as an attorney! In this space, I’ll provide monthly updates and practical insights on discovery, procedural developments, and trial-related issues arising in both New York state and federal courts.
1/21/2026 Akther v. Jabyali
Appellate Division, Second Department
Plaintiff Not Entitled to Striking of Answer Under CPLR 3126 Absent Clear Showing of Willful and Contumacious Conduct, Despite Defendant’s Failure to Appear for Deposition
Plaintiff, as administrator of the decedent’s estate, commenced a personal injury action arising from a three-vehicle collision that allegedly caused the decedent’s death. The complaint alleged that defendant Bakeel Al Jabyali operated a vehicle owned by defendant Sally Funding III, which came into contact with the decedent’s vehicle. Defendants asserted, among other affirmative defenses, that the decedent was solely responsible for the accident.
The Supreme Court directed Jabyali to appear for a deposition by a date certain and warned that failure to appear would result in preclusion of his trial testimony. After Jabyali failed to appear, plaintiff moved pursuant to CPLR 3126 to strike defendants’ answer and, thereupon, for summary judgment on the issue of liability. The Supreme Court denied the motion, instead precluding Jabyali from testifying at trial. Plaintiff appealed.
The Second Department affirmed, reiterating that the striking of a pleading under CPLR 3126 is a drastic remedy that is warranted only upon a clear showing that a party’s failure to comply with discovery obligations was willful and contumacious. The Court emphasized that the nature and degree of sanctions to be imposed rests within the sound discretion of the motion court.
The Court held that plaintiff failed to demonstrate a pattern of willful or contumacious conduct sufficient to justify striking defendants’ answer, particularly where defendants opposed the motion with evidence—including video footage and testimony from a third driver—raising triable issues of fact as to whether the decedent was the sole proximate cause of the accident. Accordingly, the Supreme Court properly exercised its discretion in denying the motion to strike and for summary judgment, while limiting the sanction to preclusion of the non-appearing defendant’s testimony at trial.
1/15/2026 H.B. v. County of Suffolk
U.S. District Court, Eastern District of New York
Court Awards Attorneys’ Fees as Discovery Sanction Under Rule 37 for Failure to Comply with Order Compelling Production
Plaintiffs commenced a civil rights action asserting multiple constitutional and state-law claims against Suffolk County and Nassau County defendants arising out of alleged misconduct by county employees. After Nassau County defendants failed to comply with the Court’s October 8, 2025 order granting plaintiffs’ motion to compel discovery, the Court granted plaintiffs’ motion for discovery sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure.
In a prior order dated December 17, 2025, the Court determined that plaintiffs were entitled to recover reasonable attorneys’ fees and expenses incurred in bringing the motion to compel and directed plaintiffs’ counsel to submit supporting documentation. Plaintiffs thereafter moved for attorneys’ fees in the amount of $2,200. Nassau County defendants did not oppose the motion.
In granting the fee application, the Court reiterated that Rule 37 sanctions must be reasonable and are assessed using the lodestar method, which multiplies a reasonable hourly rate by the number of hours reasonably expended. Applying that standard, the Court found that plaintiffs’ counsel’s hourly rate of $400 was reasonable in light of counsel’s experience and consistent with prevailing rates in the Eastern District of New York. The Court further held that the 5.5 hours expended in communicating with opposing counsel, researching discovery sanctions, and preparing and filing the motion to compel and sanctions motion were reasonable and adequately supported by contemporaneous time records.
Finding no excessive, redundant, or unnecessary billing entries, the Court awarded plaintiffs attorneys’ fees in the full amount requested and directed Nassau County defendants to remit payment by a date certain. The Court declined to award costs, as plaintiffs submitted no documentation supporting a separate costs request.
1/21/2026 I.R. v. Santos
Appellate Division, Second Department
Unified Trial on Liability and Damages Required Where Nature of Infant Plaintiff’s Injuries Was Directly Probative of How the Accident Occurred
Plaintiffs commenced a personal injury action on behalf of an infant plaintiff who allegedly was injured when her foot was run over by a van operated by defendant Wilber Gonzalez and owned by defendant Jacinto Santos. Defendants disputed plaintiffs’ account of the accident, contending that the van was not in operation and that the infant plaintiff was injured as a result of falling from a bicycle. Following the completion of discovery, plaintiffs moved for a unified trial on the issues of liability and damages. The Supreme Court, Suffolk County denied the motion, and plaintiffs appealed.
The Second Department reversed, holding that the Supreme Court improvidently exercised its discretion in denying a unified trial. The Court reiterated that while bifurcation of liability and damages is generally encouraged, a unified trial is appropriate where “the nature of the injuries has an important bearing on the issue of liability,” and where evidence of the injuries would necessarily assist the factfinder in determining how the accident occurred.
Here, the Court emphasized that the parties offered conflicting accounts of the mechanism of injury and that the nature and extent of the infant plaintiff’s injuries were probative of whether her foot was run over by a van or whether she was injured in a fall from a bicycle. Under those circumstances, evidence relating to damages was directly relevant to the liability determination. Accordingly, the Court held that a unified trial on liability and damages was warranted and granted plaintiffs’ motion.
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Labor and Employment Law Desk: Issues for Schools, Retailers and Employers
By: Maxwell C. Radley [email protected]
01/16/2026 Murillo v. Wal-Mart Assocs.
United States District Court for the Central District of California
An employee’s case survives summary judgment because the court found that the employer may have discriminated and retaliated against the employee when the employee demanded to be called their preferred name and was terminated for it.
Plaintiff, a transgender woman, sued her former employer alleging that the employer discriminated against her, harassed her, and retaliated against her on the basis of her gender identity. Specifically, plaintiff alleged that, despite legally changing her name, her employer repeatedly misgendered and deadnamed her. Plaintiff alleged that when she continued to demand that she be addressed by her correct, legal name, her employment was terminated.
Following the close of discovery, Walmart moved for summary judgment arguing that it had a legitimate, non-discriminatory basis for terminating the plaintiff’s employment, pointing to plaintiff’s disciplinary and performance history. In denying the motion, the District Court held that (1) Plaintiff raised a triable question of fact regarding her competent job performance; (2) plaintiff’s interactions with her supervisory tend to establish a discriminatory motive, but at a minimum there is a triable question of fact on the issue of discriminatory animus; and (3) that the Court could not conclude, based on the record evidence, that defendant’s articulated reason for terminating plaintiff’s employment was facially non-discriminatory. The Court specifically noted that a supervisor’s persistent misgendering after being corrected could constitute impermissible gender discrimination, and that the timing between Murillo’s protected activity and her termination raised questions of retaliation.
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Chalkboards and Claims: Liability Issues Facing School Districts
By: Bradon S. Carlson [email protected]
Hi Readers,
Stay warm out there! At some point, I’ll muster the courage to head outside and shovel my driveway again—but not just yet. In this month’s edition, we take a look at two Fourth Department decisions addressing negligent supervision and training, negligent hiring, and negligent retention claims.
10/10/2025 Harper v. Buffalo Central School District
Appellate Division, Fourth Department
The Fourth Department held that triable issues of fact existed as to whether a school district had notice of a teacher’s sexual misconduct and exercised reasonable care in supervising, hiring, and retaining the teacher, precluding summary judgment.
In this action pursuant to the Child Victims Act (see CPLR 214-g), the plaintiff claimed that when he was a student in the seventh or eighth grade in approximately 1975-1976, he was subjected to sexual abuse by a music teacher employed by the school district. The plaintiff asserted causes of action for (1) negligent supervision of the plaintiff while acting in loco parentis, (2) negligent hiring of the music teacher, (3) negligent supervision and training of the music teacher and negligent training of the defendants' other employees, and (4) negligent retention of the music teacher.
The Supreme Court granted summary judgment for the school district, holding that it did not have sufficient knowledge or notice of the teacher’s conduct. The plaintiff appealed, arguing that the school district failed to meet its initial burden of demonstrating entitlement to summary judgment.
Negligent Supervision
Schools have a duty to adequately supervise the students in their care, and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision. That duty requires that schools exercise the same degree of care as a parent of ordinary prudence would exercise in comparable circumstances. A plaintiff may succeed on a claim of negligent supervision by establishing that school authorities had sufficiently specific knowledge or notice of the dangerous conduct that caused the injury. Where a district employee acquires knowledge within the scope of their employment, that knowledge is imputed to the district and the district is bound by such knowledge even if the information is never actually communicated.
Applying these principles, the Fourth Department held that the plaintiff raised triable issues of fact as to whether the school district had sufficiently specific knowledge or notice of the teacher’s conduct. In opposition to summary judgment, the plaintiff submitted an affidavit stating that on two occasions the music teacher entered the boys’ locker room while students were changing, and that each time a gym teacher directed him to leave. Although the gym teacher denied observing this conduct at deposition, the plaintiff submitted an affidavit the gym teacher had executed in an unrelated matter stating that he had heard rumors from many students that the music teacher had a sexual interest in male students and that he was suspicious the teacher may have had inappropriate relationships with students. The affidavit further stated that the gym teacher monitored the music teacher’s conduct, including weekly discussions with another coach, yet allowed the teacher to transport students to games and swim meets.
Negligent Hiring and Retention
To establish a claim of negligent hiring or retention, it must be shown that the employer knew or should have known of the employee's propensity for the conduct which caused the injury. That is because the employer's negligence lies in having placed the employee in a position to cause foreseeable harm, harm which would have been prevented had the employer taken reasonable care in making decisions respecting the hiring and retention of the employee.
As to these causes of action, the Fourth Department held that the school district failed to establish, as a matter of law, that it exercised reasonable care in hiring and retaining the music teacher. The district’s own submissions included employment applications containing inconsistent answers regarding prior arrests; a reference from a junior high school principal stating that the teacher had been dismissed or denied tenure and had a tendency to “pal” with seventh-grade students; and a reference from a school counselor in another district stating that the teacher had been dismissed or denied tenure and that she would not employ him in her school system.
12/23/2025 R.L. v. Holland Central School District
Appellate Division, Fourth Department
The Fourth Department ruled that summary judgment was improper where a school district’s own submissions raised triable issues of fact as to whether a teacher’s misconduct was sufficiently open and prevalent to render the resulting harm reasonably foreseeable.
The matter also involved an action pursuant to the Child Victims Act (CPLR 214-g). Here, the plaintiff alleged that he was sexually abused by a middle school math teacher while he was a student in the defendant school district in the late 1970s and early 1980s. The plaintiff alleged that, on at least three separate occasions, the teacher had him stay after school, walked with him to the boys' locker room, and then sexually abused him. As relevant to this decision, the plaintiff alleged causes of action of negligent supervision of the plaintiff while the district was acting in loco parentis, as well as negligent hiring and retention.
With respect to the negligent supervision claim, as noted above, a school district has the duty to exercise the same degree of care and supervision over students under its control as a reasonably prudent parent would exercise under the same circumstances. At the trial level, the school district moved for summary judgment on this claim, arguing that it did not know, nor should it have, of the teacher’s propensity for the conduct which caused the plaintiff’s injuries. The Supreme Court granted the defendant’s motion.
On appeal, the plaintiff argued that the Supreme Court erred by shifting the burden on summary judgment from the district to the plaintiff when it held that the plaintiff’s claims were insufficient to establish constructive notice.
The Fourth Department agreed, holding that, even without actual or constructive notice of an individual's criminal propensity, a school district may be held liable for an injury that is the reasonably foreseeable consequence of circumstances it created by its inaction. Here, the school district’s own submissions, including deposition testimony of another male student who testified about an incident in which a gym teacher walked into the boys' locker room to find the teacher and the other male student alone in the shower area, raised a triable issue of fact whether the teacher's conduct was so open and prevalent that a reasonable person would have been on notice to protect against the injury-causing conduct.
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