From This Week’s “Latest Posts” Section (Below):
Must a Party Serve a Notice of Entry Even Though the Court’s Electronic Filing System Has Notified the Other Party by E-Mail?
Adago v Sy, 2026 NY Slip Op 00571, First Dept 2-5-26
Is Transporting an Oversized Load by Truck an “Inherently Dangerous Activity” Triggering Vicarious Liability?
Deitrich v Binghamton Rd. Elec., LLC, 2026 NY Slip Op 00557, Third Dept 2-5-26
Does Labor Law 240(1) Cover a Fall From a Ladder Precipitated by an Electric Shock?
Szczesiak v Ery Tenant LLC, 2026 NY Slip Op 00600, First Dept 2-5-26
Is an Unsigned Agreement to Add a Party as an Additional Insured Enforceable?
A1 Specialized, Inc. v James Riv. Ins. Co., 2026 NY Slip Op 00570, First Dept 2-5-26
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THE RESTAURANT’S INSURANCE POLICY COVERED INJURY INCURRED IN THE OPERATION OF THE “PREMISES” AND THERFORE DID NOT COVER INJURY CAUSED BY A RESTAURANT EMPLOYEE WHO WAS DELIVERING FOOD BY BICYCLE; IF THE POLICY HAD USED THE WORD “BUSINESS” RATHER THAN “PREMISES,” THE OFF-PREMISES INJURY WOULD HAVE BEEN COVERED (SECOND DEPT).
The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Landicino, determined the restaurant’s insurance policy did not cover an injury cause by a restaurant employee a block away from the restaurant. Plaintiff was struck by a restaurant employee who was on a bicycle returning from a food delivery. The policy limited coverage to injury arising out of use of the restaurant “premises … and operations necessary or incidental to those premises.” The Second Department focused on the word “premises” and concluded an accident a block away from the “premises” was not covered. The court noted that had the coverage limitation used the word “business,” as opposed to “premises,” the injury would have been covered:
There is … a glaring difference between an insurance policy that insures against losses arising from operations necessary or incidental to a business, which would ostensibly include all claims of bodily injury arising from an employee’s negligence while that employee is acting within the scope of his or her employment for the business, and a policy that insures against losses arising from operations necessary or incidental to a premises, which include claims of bodily injury that must have some premises-based connection to the covered premises. Here, the insurance policy at issue covered only those damages that arose from the operations “necessary or incidental” to the premises, which is a narrower category of coverage. Despite the fact that the alleged incident occurred while the restaurant’s employee may have been acting in the scope of his employment, the incident did not occur as a result of any activity that was connected to the operation of the premises. Normile v DB Ins. Co., Ltd., 2026 NY Slip Op 00788, Second Dept 2-11-26
Practice Point: Consult this opinion for insight into how a court will interpret a limitation of coverage in an insurance policy.
IN A SMALL CLAIMS ASSESSMENT REVIEW (SCAR) CHALLENGING A REAL PROPERTY ASSESSMENT FOR TAX PURPOSES, HOMEOWNERS HAVE STANDING TO CHALLENGE THE RESIDENTIAL ASSESSMENT RATIO (RAR) WHICH IS SET BY THE NYS OFFICE OF REAL PROPERTY TAX SERVICES (ORPTS) (SECOND DEPT).
The Second Department, in a full-fledged opinion by Justice Genovesi, determined that a residential assessment ratio (RAR) can be challenged by a residential property owner in a small claims assessment review (SCAR). In a SCAR a property owner can challenge the assessed value of the property as an “excessive assessment” and/or as an “unequal assessment:”
A class ratio refers to an assessment ratio that can apply to various types of properties. The residential assessment ratio (hereinafter RAR) is a specific class ratio used to determine the level of assessment for residential properties. It is a measurement of the overall ratio of the total assessed value of residential property in the municipality compared to the full market value … . * * *
It is the opinion of this Court that to conduct the proceedings in a manner that does substantial justice between the parties, RPTL article 7, title 1-A must be interpreted as conferring homeowners with standing to challenge the RAR … or to mount a “collateral attack” on the RAR by providing their own ratio study with an alternative ratio, within the limited context of that SCAR proceeding. To hold otherwise would frustrate the purpose of the statute, which is to provide property owners with an efficient, inexpensive, and simple alternative to the complex and formal tax certiorari proceeding. Matter of Yeung v Assessor of the Vil. of Great Neck Estates, 2026 NY Slip Op 00784, Second Dept 2-11-26
Practice Point: In a small claims assessment review (SCAR) a homeowner can challenge the tax assessment of the property. The question in this case was whether, at a SCAR, the homeowner can challenge the residential assessment ratio (RAR) which is set by New York State. The Second Department held that a homeowner can challenge the RAR in a SCAR.
PLAINTIFF WAS HIT BY A FALLING CHISEL WHILE SITTING UNDER A SIDEWALK BRIDGE AT THE WORKSITE TAKING A BREAK; THE CHISEL SHOULD HAVE BEEN SECURED AND THE SCAFFOLDING ABOVE PLAINTIFF WAS INADEQUATE TO PROTECT HIM FROM A FALLING OBJECT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).
The First Department, reversing Supreme Court, determined plaintiff in this falling-object case was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was sitting underneath a sidewalk bridge on the jobsite, taking a break, when he was struck by a chisel. The chisel should have been secured and the scaffolding above plaintiff had gaps and therefore failed to provide adequate protection. Plaintiff did not have to prove where the chisel came from:
… “[I]njuries sustained while a worker was on site, although . . . on a break, come within the protections of Labor Law § 240(1)” … .
Plaintiff established that the chisel “required securing for the purposes of the undertaking” and that the scaffolding “proved inadequate” to protect him … . It is irrelevant that plaintiff did not know where the chisel fell from, or what caused it to fall, or hear anything fall, as “plaintiff is not required to show exactly how the [object] fell” … . Any alleged inconsistency concerning the location of the accident is immaterial … . Similarly, it does not matter where the chisel struck plaintiff’s body, as it is undisputed that it struck him. … [P]laintiff alleges without contradiction that the scaffolding was defective … , including the existence of gaps between the scaffolding planks. Contreras v City of New York, 2026 NY Slip Op 00612, First Dept 2-10-26
Practice Point: In a Labor Law 240(1) falling-object case, a plaintiff need not prove where the object came from.
PLAINTIFF ALLEGED SHE WAS COVERED AS AN ADDITIONAL INSURED UNDER THE POLICY AND ATTACHED A CERTIFICATE OF INSURANCE TO HER COMPLAINT; A CERTIFICATE OF INSURANCE IS NOT SUFFICIENT PROOF OF THE EXISTENCE OF AN INSURANCE CONTRACT; PLAINTIFF’S COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT).
The First Department, reversing Supreme Court, determined the complaint alleging plaintiff was an additional insured based upon the certificate of insurance should have been dismissed. A certificate of insurance does not prove the existence of an insurance contract:
Only those named as an insured or additional insured on an insurance policy are entitled to coverage … . As the party claiming coverage, plaintiff bears the burden of showing that the policy covers her … .
Supreme Court should have granted [the insurer’s] motion to dismiss the complaint because plaintiff failed to plead facts showing that she was covered under the policy. The certificate of liability insurance is insufficient to prove that plaintiff was an additional insured because “[a] certificate of insurance is only evidence of a carrier’s intent to provide coverage but is not a contract to insure the designated party nor is it conclusive proof, standing alone, that such a contract exists” … . Furthermore, the certificate contains a disclaimer stating that it was “issued as a matter of information only and confers no rights upon the certificate holder” … . Itzhak v Briarwood Ins. Servs. Inc., 2026 NY Slip Op 00616, First Dept 2-10-26
Practice Point: A certificate of insurance is not proof of the existence of an underlying insurance contract. Here plaintiff relied solely on a certificate of insurance to allege she was covered under the policy as an additional insured. That was not enough to state a cause of action.
DISAGREEING WITH THE THIRD DEPARTMENT, THE SECOND DEPARTMENT HELD THAT A PREHEARING DENIAL OF AN APPLICATION FOR RESENTENCING UNDER THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) IS APPEALABLE; HERE DEFENDANT DID NOT DEMONSTRATE A SUFFICIENT NEXUS BETWEEN THE ABUSE HE SUFFERED WHILE LIVING WITH HIS FAMILY AND THE STABBING OF A STRANGER AFTER HE HAD LEFT HOME (FIRST DEPT).
The First Department, in a full-fledged opinion by Justice Kapnick, determined (1) (disagreeing with the Third Department) defendant has the right to appeal from a prehearing dismissal of an application for resentencing under the Domestic Violence Survivors Justice Act (DVSJA), and (2) the dismissal of defendant’s application was appropriate because defendant did not meet his evidentiary burden. Defendant stabbed and killed a stranger during an argument when he was 20 years old. He pled guilty to manslaughter. He applied for resentencing under the DVSJA based upon alleged abuse by family members. The application was denied, in part, because the abuse was not alleged to have been ongoing at the time of the offense:
… [T]he Third Department dismissed an appeal from a prehearing order denying a DVSJA resentencing application. The Third Department reasoned that “in enacting the DVSJA, the Legislature expressly authorized appeals as of right to an intermediate appellate court from orders denying resentencing or granting resentencing and imposing a new sentence,” but provided no such express statutory right to appeal “from an order dismissing an application for resentencing prior to a hearing” … . However, … CPL 440.47(3) specifically provides that an appeal may be taken as of right from “an order denying resentencing;” there is no language limiting that appellate right only to orders issued after a hearing is held.
… [T]he First and Second Departments have repeatedly reviewed orders denying a DVSJA resentencing application without a hearing due to a defendant’s failure to satisfy CPL 440.47(2)’s evidentiary requirements … . * * *
Cognizant of the horrific abuse that defendant suffered throughout his life, we nonetheless note that defendant had by his own admission left his adoptive parents’ home almost three years before the underlying crime. People v Croney, 2026 NY Slip Op 00630, First Dept 2-10-26
Practice Point: In the Third Department the prehearing denial of an application for resentencing under the DVSJA is not appealable. In the First and Second Departments, a prehearing denial is appealable.
Practice Point: Here there was no question defendant had suffered horrific abuse when living with his family. But the offense was committed after defendant had left home. The DVSJA was deemed not to apply under the facts.
PETITIONER LEASED COMMERCIAL TRUCKS; AT THE OUTSET OF THE LEASE PETITIONER PAID SALES TAX BASED ON THE ESTIMATED RENT; IF, AT THE END OF THE LEASE, THE ACTUAL RENT WAS LOWER THAN THE ESTIMATED RENT, PETITIONER REFUNDED THE EXCESS RENT AND SALES TAX; PETITIONER THEN TOOK CREDITS FOR THE REFUNDED SALES TAX; THE TAX TRIBUNAL FOUND PETITIONER COULD NOT TAKE THOSE CREDITS AND IMPOSED A SALES TAX ASSESSMENT OF NEARLY $3 MILLION; THE THIRD DEPARTMENT ANNULLED THE ASSESSMENT FINDING THE CREDITS PROPER (THIRD DEPT).
The Third Department, in a full-fledged opinion by Justice Garry, annulled the Tax Appeals Tribunal’s sustaining of a nearly $3 million sales tax assessment imposed on petitioner. Petitioner leased commercial trucks. At the outset of the lease petitioner paid sales tax based on the estimated rent. At the end of the lease the actual rent was calculated based upon the value of the truck. If the actual rent was lower than the estimated rent paid at the outset, the excess rent and sales tax was refunded. Petitioner took tax credits for those refunds. The Third Department determined taking the credits was proper. Matter of Gelco Corp. v State of N.Y. Tax Appeals Trib., 2026 NY Slip Op 00553, Third Dept 2-5-26
PLAINTIFF WAS STRUCK BY A SHED WHICH WAS BEING TRANSPORTED AS AN OVERSIZED LOAD; AN EMPLOYER WHICH HIRES AN INDEPENDENT CONTRACTOR WILL GENERALLY NOT BE VICARIOUSLY LIABLE FOR THE CONTRACTOR’S NEGLIGENCE UNLESS THE CONTRACTOR IS TASKED WITH AN “INHERENTLY DANGEROUS ACTIVITY;” TRANSPORTING AN OVERSIZED LOAD BY TRUCK IS NOT AN “INHERENTLY DANGEROUS ACTIVITY;” THEREFORE THE EMPLOYER WAS NOT VICARIOUSLY LIABLE FOR THE TRUCK DRIVER’S NEGLIGENCE WHICH CAUSED PLAINTIFF’S INJURY (THIRD DEPT).
The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Powers, over a dissent, determined defendant ACS, which hired defendant St. Mary as an independent contractor, was not vicariously liable for the negligence of a driver working for St. Mary. Plaintiff was struck by a shed which was being transported by truck as an oversized load. Although the employer is usually not vicariously liable for the negligence of an independent contractor, there is an exception where the employer assigns an “inherently dangerous” task to the independent contractor. The majority concluded that moving a shed on a truck as an oversized load did not meet the definition of “inherently dangerous:”
It is undisputed that St Mary was an independent contractor of ACS and, as a general rule, “a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor’s negligent acts” … . Certain exceptions exist to this general rule, however. These exceptions include, as is relevant here, ” ‘where the employer . . . has assigned work to an independent contractor which the employer knows or has reason to know involves special dangers inherent in the work or dangers which should have been anticipated by the employer’ ” … . * * *
… “[A]n actor who hires an independent contractor to do work that the actor knows or should know involves an abnormally dangerous activity is subject to vicarious liability for physical harm when the abnormally dangerous activity is a factual cause of any such harm within the scope of liability” (Restatement [Third] of Torts § 58). “[A]n activity is abnormally dangerous if: (1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and (2) the activity is not one of common usage” … .
… [N]o view of the facts presented on this motion supports the conclusion that the trucking of the oversized load in question was an inherently dangerous activity because there was not a significant risk of harm if reasonable care were exercised by those involved — namely, Rousell [the driver]. Plaintiff alleges that his injuries resulted from Rousell failing to take notice of his surroundings on one side of the vehicle and crossing the line separating lanes of travel. This ordinary incident of negligence — i.e., failing to appropriately observe one’s surroundings — is not inherent in the trucking of oversized loads and could have been avoided with the exercise of reasonable care. “Demanding though it may be, the activity of transporting [oversized loads on public highways] — successfully accomplished countless times daily — does not involve that sort of inherent risk for the nonnegligent driver and is simply not an inherently dangerous activity so as to trigger vicarious liability” … . Deitrich v Binghamton Rd. Elec., LLC, 2026 NY Slip Op 00557, Third Dept 2-5-26
Practice Point: Consult this opinion for insight into what constitutes an “inherently dangerous activity” which can trigger an employer’s vicarious liability for the negligence of an independent contractor.
THE E-MAIL SERVICE OF A NOTICE OF ENTRY BY THE NEW YORK STATE ELECTRONIC FILING SYSTEM (NYSCEF) “SHALL NOT CONSTITUTE SERVICE OF ENTRY BY ANY PARTY;” BECAUSE PLAINTIFF DID NOT SERVE THE NOTICE OF ENTRY ON DEFENDANTS AFTER REMAND BY THE APPELLATE COURT, THE DEFENDANTS’ TIME TO ANSWER NEVER STARTED RUNNING; THE DEFAULT JUDGMENT WAS VACATED (FIRST DEPT).
The First Department, reversing the default judgment, held that defendants’ time to answer after remand by the appellate court never started running because plaintiff never served the notice of entry. The New York State Courts Electronic Filing system’s (NYSCEF’s) transmission of notification of entry to e-mail service addresses “shall not constitute service of entry by any party:” Adago v Sy, 2026 NY Slip Op 00571, First Dept 2-5-26
THE A-FRAME LADDER PLAINTIFF WAS USING WHEN HE FELL WAS DEFECTIVE AND LABOR LAW 240(1) APPLIED ON THAT GROUND ALONE; EVEN IF THE LADDER HAD NOT BEEN DEFECTIVE, LABOR LAW 240(1) WOULD STILL APPLY BECAUSE THE LADDER WOBBLED AFTER PLAINTIFF RECEIVED AN ELECTRIC SHOCK; THERE IS NO EXCEPTION TO THE APPLICABILITY OF LABOR LAW 240(1) WHERE A LADDER-FALL IS PRECEDED BY AN ELECTRIC SHOCK (FIRST DEPT).
The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Mendez, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this ladder-fall case. Plaintiff was standing on an A-frame ladder when he he was shocked by a live electric wire and fell. At the time he was shocked, he felt the ladder wobble. That evidence was sufficient for summary judgment. There is no exception under Labor Law 240(1) for a fall which follows an electric shock:
… [T]he statute applies here because the ladder was defective. Plaintiff’s deposition testimony and the photographs provided clearly demonstrate that the ladder, which was the only one available for the work plaintiff was required to perform, had two bent and curved crossbeams and worn rubber feet. The general contractor’s corporate safety manager confirmed that the ladder was defective when he stated at his deposition that if he had observed a ladder with the damage depicted in the photographs, he would have replaced the ladder and taken it out of service.
Even if the ladder had been stable, this would have been no impediment to a claim under section 240 … . Plaintiff submitted evidence that the ladder was an inadequate safety device because it failed to provide adequate protection against the gravity-related risk inherent in the work he was performing. Plaintiff testified that when he removed his hand from the wires that shocked him, the ladder immediately “moved, wobbled and shifted,” establishing that it failed to adequately support and protect him from the gravity-related risk … . Szczesiak v Ery Tenant LLC, 2026 NY Slip Op 00600, First Dept 2-5-26
Practice Point: Plaintiff fell from a ladder which wobbled after he received an electric shock. The fact that the ladder wobbled was proof it was not an adequate safety device. The electric shock was not relevant to the applicability of Labor Law 240(1).
ONE DEFENDANT PROVED HE DID NOT RESIDE AT THE ADDRESS WHERE SERVICE OF PROCESS WAS MADE; AND PLAINTIFF FAILED TO PROVE THE PROCESS SERVER EXERCISED “DUE DILIGENCE” IN ATTEMPTING TO SERVE THE OTHER DEFENDANT BEFORE RESORTING TO NAIL AND MAIL; DEFAULT JUDGMENT VACATED (FIRST DEPT).
The First Department, reversing Supreme Court, determined the default judgments against De La Cruz-Ramos and Mosquea should have been vacated. De La Cruz-Ramos proved he did not reside at the address where service of process was made. And plaintiff did not prove the process server exercised due diligence in serving Mosquea before resorting to “nail and mail.” The attempts to serve Mosquea were all made during working hours:
De La Cruz-Ramos [submitted] his own affidavit averring that he had moved from the address where service was made, as well as a lease confirming that he had moved before the date of service … . * * *
Mosquea contends that the service was defective because the process server did not exercise “due diligence” in seeking to effectuate service on defendant before resorting to nail-and-mail service (CPLR 308[4]). Generally, a plaintiff can establish diligence by providing an affidavit of service indicating efforts to serve the defendant at her residence on three different occasions, at different times of day … . As Mosquea argues, however, all of the dates of attempted personal service upon him were during the work week and during normal business hours in the same afternoon window. Thus, plaintiff did not establish the due diligence necessary to resort to nail and mail service … . Unitrin Safeguard Ins. Co. v Della-Noce, 2026 NY Slip Op 00601, First Dept 2-5-26
Practice Point: Here the process server made three attempts to serve a defendant at the same time of day, during work hours. The process server, therefore, did not exercise “due diligence” before resorting to nail and mail.
IF THE UNDERLYING INSURANCE POLICY DOES NOT INDICATE THAT A WRITTEN AGREEMENT NAMING A PARTY AS AN ADDITIONAL INSURED MUST BE SIGNED, AN UNSIGNED DOCUMENT TO THAT EFFECT IS ENFORCEABLE (FIRST DEPT).
The First Department, reversing Supreme Court, determined that the fact the the change order, which required defendant (Arsenal) to name plaintiff as an additional insured, was unsigned, it was enforceable:
An unsigned document may qualify as a written agreement requiring a party to be named as an additional insured, provided that the additional insured provisions in the insurance policy itself do not explicitly require that the agreement be signed … . If such agreement is unsigned, it may still be enforceable, “provided there is objective evidence establishing that the parties intended to be bound” … . * * *
Since the change order qualifies as a written agreement requiring Arsenal to name plaintiff as an additional insured, Supreme Court should have granted plaintiff’s motion for partial summary judgment and found that defendant insurer is required to provide plaintiff a defense in the underlying litigation, as the duty to defend was triggered … . A1 Specialized, Inc. v James Riv. Ins. Co., 2026 NY Slip Op 00570, First Dept 2-5-26
Practice Point: An unsigned document requiring a party to be named as an additional insured is enforceable if the underlying policy does not require the agreement to be signed.
EXCLUSIONS FROM COVERAGE IN AN INSURANCE POLICY ARE STRICTLY CONSTRUED AGAINST THE INSURER; HERE DAMAGE CAUSED BY “INTERIOR TILE” WORK WAS COVERED UNDER THE POLICY; IN PREPARING THE BATHROOM FLOOR FOR TILING THE INSURED USED WELDING EQUIPMENT WHICH CAUSED A FIRE; THE INSURER DID NOT DEMONSTRATE THE PREPARATORY WORK WAS NOT ENCOMPASSED BY THE COVERAGE FOR “INTERIOR TILE” WORK (FIRST DEPT).
The First Department, reversing Supreme Court, determined that plaintiff insurance company was, by the terms of the policy, obligated to cover property damage caused by defendant contractor, who was retained to refurbish a bathroom. The policy issued by plaintiff to defendant excluded from coverage any property damage caused by the defendant. There was an “exception to the exclusion” for “interior tile” work. In preparing the bathroom floor for tiling, defendant’s worker used welding equipment which started a fire, causing damage. The question before the court was whether the “interior tile” work “exception to the exclusion” included the preparation for the tile work using welding equipment:
Policy exclusions must be stated “in clear and unmistakable terms so that no one could be misled” … and “are to be accorded a strict and narrow construction” … . To avoid coverage pursuant to an exclusion, the insurer must establish that the exclusions or exemptions apply to the incident in question and are subject to “no other reasonable interpretation” … .
Plaintiff here failed to meet this burden. The Policy fails to define “interior tile” work. Nor does it indicate the scope or extent of what constitutes “tiling work” or articulate whether the phrase was meant to encompass closely related preparatory tasks, which is a reasonable interpretation advanced by defendants … . Accordingly, the Policy’s exclusions and the “interior tile” exception is ambiguous. The record before us is conclusory and does not resolve these ambiguities. Well-settled “precedent[] require us to adopt the readings that narrow the exclusion[]” and construe ambiguities against the insurer plaintiff, resulting in coverage as a matter of law … . Mt. Hawley Ins. Co. v Michelle Kuo Corp., 2026 NY Slip Op 00427, Frist Dept 1-29-26
Practice Point: Consult this decision for insight into how a court will strictly construe “exceptions” to “exclusions from coverage” in an insurance policy.
DEFENDANTS-ATTORNEYS WAIVED A DEFENSE WITHOUT THEIR CLIENTS’ CONSENT; THE LEGAL MALPRACTICE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).
The First Department, reversing Supreme Court, determined the motion to dismiss the legal malpractice complaint should not have been granted. Defendants-attorneys represented Park West. A driver working for Park West was in an accident and both Park West and the driver were sued. The contract between the driver and Park West indicated the driver was an independent contractor. The attorneys, however, conceded the driver was an employee and Park West settled. The essence of the legal malpractice action was the attorneys’ failure to raise the independent-contractor-defense to Park West’s liability. The First Department noted that the evidence indicated the driver may in fact have been Park West’s employee, but that cannot be decided at the motion-to-dismiss stage. The only relevant question for the motion to dismiss is whether the complaint stated a cause of action for legal malpractice:
The motion court improperly held that plaintiffs failed to state a cause of action for legal malpractice against defendants. To state a claim for legal malpractice, a “plaintiff must show that (1) the attorney was negligent; (2) the attorney’s negligence was a proximate cause of plaintiff’s losses; and (3) plaintiff suffered actual damages” … . Moreover, an “attorney’s conduct or inaction is the proximate cause of a plaintiff’s damages if but for the attorney’s negligence the plaintiff would have succeeded on the merits of the underlying action or would not have sustained actual and ascertainable damages” … .
Here, plaintiffs argue that but for defendants’ negligence in waiving Park West’s independent contractor defense in the underlying action, without their consent and without disclosing conflicts in their representation of several defendants in the action, they would not have been compelled to settle the action, and they would not have been held vicariously liable for [the driver’s] negligence. Park W. Exec. Servs., Inc. v Gallo Vitucci & Klar, LLP, 2026 NY Slip Op 00428, First Dept 1-29-26
Practice Point: The question at the motion-to-dismiss stage is whether the complaint states a cause of action, not whether the elements of the cause of action can be proven. Here the defendants-attorneys’ waiver of a defense without their client’s consent stated a cause of action for legal malpractice. Whether that defense would hold up at trial is not relevant to a dismissal for failure state a cause of action.
DEFENDANT BASED HIS DECISION TO PLEAD GUILTY, IN PART, ON INACCURATE INFORMATION ABOUT HIS SENTENCING EXPOSURE; GUILTY PLEAS VACATED (FIRST DEPT).
The First Department, vacating defendant’s guilty pleas, determined the misinformation provided to the defendant about his sentencing exposure rendered the pleas invalid:
Defendant was told that he faced the possibility of serving two consecutive 15-year sentences if he elected to go to trial. At most, however, he was facing 20 years because of the statutory cap (see Penal Law § 70.30 [1] [e] [i]). Unbeknown to him, he was weighing the benefit of a plea offer of 20 years when in reality, it was the maximum he would serve even if convicted after trial. Defendant was not told about the capping statute and therefore lacked a “full understanding of what his plea connotes and of its consequence” … . This is particularly true because defendant’s guilty plea afforded him the exact sentence he would have served. The record is also clear that defendant remained conflicted about pleading guilty and sought to withdraw his plea.
The totality of the circumstances reflect that defendant’s sentencing exposure played a decisive role in his decision to plead guilty, and his erroneous understanding that he faced 30 years in prison if he was convicted after trial had an “impact on [his] judgment” significant enough to render his guilty plea not knowing, voluntary and intelligent … . People v Ramos, 2026 NY Slip Op 00430, First Dept 1-29-26
Practice Point: Here defendant agreed to a 20-year sentence with the understanding he could be sentenced to 30 years after trial. In fact, his sentence after trial would be capped at 20 years. His guilty pleas were not knowing, voluntary and intelligent.
DEFENDANTS WERE NOT ENTITLED TO SUMMARY JUDGMENT IN THIS WET-FLOOR SLIP AND FALL CASE; THEY FAILED TO PROVE THERE WAS A STORM IN PROGRESS, THEY FAILED TO PROVE THEY TOOK REASONABLE PRECAUTIONS TO REMEDY THE WET FLOOR, AND THEY FAILED TO PROVE THEY DID NOT HAVE CONSTRUCTIVE OR ACTUAL NOTICE OF THE CONDITION (FIRST DEPT).
The First Department, reversing Supreme Court, determined defendants were not entitled to summary judgment in this slip and fall case. The slip and fall was related to tracked-in water in the lobby of defendants’ premises. The court noted what defendants failed to prove, i.e., there was a “storm in progress,” they took reasonable precautions to remedy the wet floor, and they didn’t have constructive or actual notice of the condition. The decision provides insight into how those issues can be proven:
Defendants failed to demonstrate that they are protected from liability for plaintiff’s accident by the storm in progress rule. They did not submit any weather reports or expert opinions to show an ongoing storm at the time of plaintiff’s fall, and plaintiff’s conclusory, affirmative response when asked whether it was “snowing when [her] accident happened” is insufficient to show that a storm was in progress … .
… [T]he superintendent … could not recall whether he placed … signs or dry-mopped on the morning of plaintiff’s accident or if he even worked that day. In fact, there was no evidence that a caution sign was placed in the lobby or that anyone had mopped the area prior to the accident, or throughout that day … . Although defendants were not obligated to continuously mop moisture tracked onto the lobby floor by people entering from outside or to cover the entire floor with mats, here plaintiff claims that her accident was caused by a lack of matting on the portion of the lobby between the entrance and the stairway … . …
Defendants … failed to demonstrate when they last inspected the lobby on the day of the accident … . … [T]hey failed to produce a witness to testify that no complaints about the location of plaintiff’s fall were received before the accident and that there were no prior incidents in that area before plaintiff fell … . * * * … [T]he superintendent, who could not recall if he worked on the day of plaintiff’s accident, testified that he could not recall if anyone had complained to him about water on the floor of the lobby and that he had “no idea” about the procedure for tenants to make complaints. Rodney v 840 Westchester Ave, LLC, 2026 NY Slip Op 00435, First Dept 1-29-26
Practice Point: Consult this decision for insight into what evidence a defendant in a wet-floor slip and fall case should present to prove (1) the “storm in progress” defense, (2) actions were taken to remedy the wet floor, (3) defendant’s lack of constructive notice of the condition, and (4) defendant’s lack of actual notice of the condition.
Practice Point: Note that the plaintiff’s testimony that it was snowing at the time of her fall was not sufficient to prove defendants’ “storm in progress” defense.
ONCE THE JUDGE DETERMINED THERE WERE NECESSARY PARTIES WHICH WERE NOT JOINED, THE JUDGE SHOULD NOT HAVE DECIDED THE MOTION FOR A DEFAULT JUDGMENT; THE NECESSARY PARTIES SHOULD HAVE BEEN IDENTIFIED AND SUMMONED IF POSSIBLE; MATTER REMITTED (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the judge should not have ruled on the motion for a default judgment without first identifying the necessary parties to the action (after concluding there in fact were necessary parties who were not joined):
“[N]ecessary parties are persons who might be inequitably affected by a judgment in the action and must be made plaintiffs or defendants” … . “CPLR 1001(b) requires the court to order the necessary party or parties summoned, where they are subject to the court’s jurisdiction, and ‘[i]f jurisdiction over such necessary parties can be obtained only by their consent or appearance, the court is to determine, in accordance with CPLR 1001(b), whether justice requires that the action proceed in their absence'” … . “The nonjoinder of necessary parties may be raised at any stage of the proceedings, by any party or by the court on its own motion, including for the first time on appeal” … .
Here, it was premature for the Supreme Court to make a determination on the plaintiff’s motion, among other things, for leave to enter a default judgment against the defendants without first identifying the necessary parties to the action … . After the court concluded that there existed necessary parties to the action, the court … should have ascertained the identity of those parties, whether they can be joined, and, if not, whether the action should proceed in the absence of any necessary parties pursuant to CPLR 1001(b) … . Under the circumstances of this case, “‘the questions of whether there are any . . . necessary parties who should be joined in this action and, if so, the appropriate procedural disposition for effecting joinder should not be determined by this court in the first instance'” … . Accordingly, we remit the matter to the Supreme Court, Queens County, to hold a hearing to determine whether there are any necessary parties who should be joined in this action and, if so, to compel their joinder, subject to any affirmative defenses, and if joinder cannot be effectuated, to determine, pursuant to CPLR 1001(b), whether the action should proceed in the absence of any necessary parties. Hossain v Rahman, 2026 NY Slip Op 00352, Second Dept 1-28-26
Practice Point: Consult this decision for insight into to proper procedure which should be followed by a judge when there are necessary parties which have not been joined.