From This Week’s “Latest Posts” Section (Below):
Is Entering Another’s Home to Retrieve Your Own Property “Burglary?”
People v Small, 2026 NY Slip Op 03560, Fourth Dept 6-5-26
Plaintiff Fell from an A-Frame Ladder that Was Not Defective, But Was Not “Secured” and Was “Improperly Placed;” Summary Judgment?
Delisle v FBBT/US Props., LLC, 2026 NY Slip Op 03529, Fourth Dept 6-5-26
In a Bicycle Accident Case, Is a 1 1/4 Inch Gap in the Road “Open and Obvious and Not Inherently Dangerous” as a Matter of Law?
Stegman v City of Glens Falls, N.Y., 2026 NY Slip Op 03486, Third Dept 6-4-26
Is a Missing Word-Count Certification Grounds for Denying the Motion?
Hodges v 37-11 30th St., LLC, 2026 NY Slip Op 03428, Second Dept 6-3-26
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DEFENDANT HAD SUFFICIENT CONTACTS WITH NEW YORK TO ALLOW THIS BREACH OF CONTRACT ACTION TO BE BROUGHT IN NEW YORK (FIRST DEPT).
The First Department, reversing Supreme Court, determined defendant, which issued preferred stock to plaintiff, had sufficient contacts with New York to bring the breach of contract action in New York:
Pursuant to the certificates of designation governing the preferred stock issued by defendant to plaintiff, defendant was required to provide dividends to a paying agent, which then provided the funds to a depository to pay the preferred stockholders. To facilitate dividend distributions, defendant designated entities located in New York as the paying agent and the depository. Further, defendant’s agreements with each of the depositories required the depository to maintain facilities in New York City. Defendant also contracted with multiple underwriters based in New York to sell the preferred stock. * * *
… [The] New York-based contacts are sufficiently related to plaintiff’s underlying breach of contract claim because “at least one element [of the cause of action] arises from the New York contacts” … . Defendant allegedly breached its duty under the certificates of designation not to sell stock to its affiliates “unless full cumulative dividends on the [preferred stock] . . . have been paid.” Defendant’s alleged breach consisted of not only its agreement to sell stock to one of its affiliates but also its failure to make full cumulative dividend payments to the preferred stockholders before completing the sale. … [D]efendant’s failure to make dividend payments, which necessarily would have been sent to its paying agent in New York, sufficiently connects defendant’s contacts with New York to the breach of contract cause of action … . Katz v Navios Mar. Holdings, Inc., 2026 NY Slip Op 03731, First Dept 6-11-26
Practice Point: Consult this decision for insight into when a defendant’s contacts with New York are sufficient to support a breach of contract action.brought in New York.
“EXHAUSTION OF REMEMDIES” IS NOT ALWAYS REQUIRED BEFORE AN AGENCY ACTION CAN BE CHALLENGED IN COURT; HERE THE CHALLENGE INVOLVED A PURE QUESTION OF LAW (SECOND DEPT).
The Second Department noted that the “exhaustion of remedies” rule does not apply to administrative actions where, as here, an action is challenged as either unconstitutional or beyond its power. Here petitioner’s alleged the respondent NYC Water Board overcharged for excess water consumption. That allegation was rejected:
… “[E]xhaustion of administrative remedies is not required where an agency’s action is challenged as either unconstitutional or beyond its grant of power, or when resort to an administrative remedy would be futile, or when its pursuit would cause irreparable injury” … . This is because while review of some claims “hinges upon factual issues reviewable at the administrative level [which] must first be addressed to the agency so that a necessary factual record can be established” … , other claims present “a circumstance where the issue to be determined is purely a question of law” … . To the extent the fifth cause of action sought a declaration that the Water Board is acting in contravention of an established statutory scheme for setting rates for excess water consumption, exhaustion was not required … , and the court should not have dismissed that portion of the fifth cause of action on those procedural grounds. Matter of Town of Carmel v New York City Water Bd., 2026 NY Slip Op 03680, Second Dept 6-10-26
Practice Point: This decision presents an example of when a court challenge to an agency action does not trigger the “exhaustion of remedies” requirement. Here the challenge presented a pure question of law which did not require the development of a factual record at the agency level.
HERE THE STATE STATUTE OF LIMITATIONS FOR TOXIC TORTS ACTIONS WAS PRE-EMPTED BY A FEDERAL “DISCOVERY RULE” WHICH ALLOWS A TOXIC-TORT ACTION TO BE BROUGHT WITHIN ONE YEAR AFTER THE DATE PLAINTIFF KNEW OR REASONABLY SHOULD HAVE KNOWN THE CAUSE OF AN INJURY, EVEN IF MORE THAN FIVE YEARS HAVE ELAPSED SINCE THE DISCOVERY OF THE INJURY (SECOND DEPT).
The Second Department, in a full-fledged opinion by Justice Dowling, determined the federal “discovery rule” for toxic tort actions pre-empts the state statute of limitations. The lawsuit alleged a town landfill near a school emitted toxic materials causing illness among the school’s staff and students:
42 USC § 9658 has been deemed a “discovery rule” … , and “does not purport to create an entirely new statute of limitations framework for state toxic tort actions” … . Instead, the statute provides “a limited ‘[e]xception to State statutes’ [that] applies only if the state statute ‘provides a commencement date which is earlier than the federally required commencement date'” … . Thus, in New York, where suit was not brought within three years of the discovery-of-injury date as provided by CPLR 214-c(2), the primary effect of 42 USC § 9658 is to allow a plaintiff to bring suit within one year after “the date the plaintiff knew (or reasonably should have known)” the cause of an injury, even if more than five years have elapsed since discovery of the injury … . * * *
… [W]ith respect to those plaintiffs in this action who did not bring suit within three years of the discovery of their alleged injuries (see CPLR 214-c[2]), 42 USC § 9658 applies to allow those plaintiffs to bring suit within one year after “the date the plaintiff knew (or reasonably should have known)” the cause of an injury, even if more than five years have elapsed since discovery of the injury … . Klaus v Town of Brookhaven, 2026 NY Slip Op 03669, Second Dept 6-10-26
Practice Point: Here the state statute of limitations for toxic tort cases was pre-empted by a federal “discovery rule” which allows suit within one year after “the date the plaintiff knew (or reasonably should have known)” the cause of an injury, even if more than five years have elapsed since discovery of the injury.
THE BANK’S NOTICE OF DEFAULT WHICH STATED THE MORTGAGE DEBT WOULD BE ACCELERATED IF THE ARREARS WERE NOT PAID IN 32 DAYS WAS A STATEMENT OF FUTURE INTENT AND DID NOT SERVE TO ACCELERATE THE DEBT; THEREFORE THE NOTICE DID NOT TRIGGER THE SIX-YEAR STATUTE OF LIMITATIONS AND THE FORECLOSURE ACTION WAS TIMELY BROUGHT (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the notice by the bank stating that the mortgage debt would be accelerated if the defendant did not pay the arrears withing 32 days was merely a statement of future intent and did not serve to accelerate the debt. Therefore the notice did not trigger the running of the six-year statute of limitations and the foreclosure action should not have been dismissed:
… [T]he July 31, 2010 default notice did not accelerate the debt. The language in the default notice, that the mortgage debt would be accelerated if Edmund J. Burns, Jr., did not pay the arrears within 32 days from the date of the default notice, was merely an expression of future intent that fell short of an actual acceleration of the mortgage debt … . The mortgage debt was not accelerated until the plaintiff commenced the first action on December 12, 2012, and elected in the complaint to call due the entire loan amount and demanded payment of the outstanding loan in full … . This action was timely commenced on June 29, 2017, prior to the expiration of the statute of limitations on December 12, 2018. Bank of N.Y. Mellon Trust Co., N.A. v Burns, 2026 NY Slip Op 03658, Second Dept 6-10-26
Practice Point: In a foreclosure action, a notice of default which states the mortgage debt will be accelerated if the arrears are not paid in 32 days does not accelerate the debt and therefore does not trigger the six-year statute of limitations.
A PLAINTIFF CAN USE THE SIX-MONTH “SAVINGS CLAUSE” IN CPLR 205(A) MORE THAN ONCE; WHEN THERE HAS BEEN AN APPEAL OF THE DISMISSAL OF THE COMPLAINT, THE SIX-MONTH PERIOD DOESN’T START TO RUN UNTIL 30 DAYS AFTER SERVICE OF THE APPELLATE DIVISION’S ORDER WITH NOTICE OF ENTRY (FIRST DEPT).
The First Department determined the dismissal of the complaint should have been “without prejudice” because plaintiff is entitled to use the six-month “savings clause” (CPLR 205(a)) more than once. The six-month period begins to run when when an appeal taken as of right is exhausted. Therefore the six-month period won’t start running until 30 days after the service of the First Department’s order with notice of entry:
The motion court properly determined that plaintiff did not have capacity to initiate this action because plaintiff has not yet obtained the necessary letters of administration. Dismissal of the action was therefore warranted. However, plaintiff is entitled to use the savings clause of CPLR 205(a) more than once … . Accordingly, we modify to make the dismissal without prejudice… .
Defendant’s contention that the grace period for plaintiff to bring a third action expired on December 3, 2025 (six months after the order appealed from was filed with notice of entry) is unavailing. “[A] prior action terminates for purposes of CPLR 205(a) when an appeal taken as of right is exhausted” … . Thus, “the six-month period for recommencing an action . . . begins to run once 30 days have elapsed following service of [our] order . . . with notice of entry” … . Lewis v TCPRNC, LLC, 2026 NY Slip Op 03635, First Dept 6-9-26
Practice Point: The six-month “savings clause” in CPR 205(a) can be used more than once.
Practice Point: Where, as here, there has been an appeal of the initial dismissal of the complaint, the CPLR 205(a) six-month period does not start to run until 30 days after the service of the appellate division’s order with notice of entry.
PLAINTIFF IN THIS SLIP AND FALL CASE DID NOT CALL HER TREATING PHYSICIAN AS A WITNESS AND DID NOT DEMONSTRATE THE PHYSICIAN WAS UNAVAILABLE OR THAT HIS TESTIMONY WOULD BE CUMULATIVE; PLAINTIFF RELIED SOLELY ON THE TESTIMONY OF A PSYCHIATRIST WHO FIRST SAW PLAINTIFF SIX YEARS AFTER THE ACCIDENT; DEFENDANT’S REQUEST FOR A “MISSING WITNESS” JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; VERDICT SET ASIDE (FIRST DEPT).
The First Department, granting defendant’s motion to set aside the jury verdict and direct a new trial in this sidewalk slip and fall case, determined plaintiff’s failure to call her treating physician as a witness warranted the “missing witness” jury instruction. Plaintiff called only, Dr. Guy, a psychiatrist who saw plaintiff only a few times six years after the injury:
Plaintiff alleges that she was injured when she was walking on the sidewalk adjacent to defendant’s property when her foot became trapped in a hole, causing her to fall. At trial, plaintiff alleged that because of the accident, she suffered a cervical herniation that caused radiculopathy and required surgery. She further alleged that injuries to her knee and her lumbar spine would require future surgery.
The trial court should have given the jury a missing witness charge with regard to Dr. Jason Gallina, plaintiff’s treating physician and surgeon from the period beginning months after the accident until at least a year afterward. Dr. Gallina was the orthopedic surgeon who performed plaintiff’s cervical fusion surgery, and he was the doctor who allegedly recommended the lumbar surgery that plaintiff contended she would need in the future.
The law is well settled that a missing witness charge is warranted for the failure to call a treating physician as a witness at trial, unless the party opposing the inference shows that the witness is either unavailable or not under the party’s control, or that the witness’s testimony would be cumulative … . * * *
Although the burden was on plaintiff to show that Dr. Gallina was unavailable or not under her control, she made no such showing … . … [T]he testimony from Dr. Gallina would not have been cumulative. Dr. Guy is a physiatrist, while Dr. Gallina is the orthopedic surgeon who performed plaintiff’s surgery. Encarnacion v St. Barnabas Hosp., 2026 NY Slip Op 03630, First Dept 6-9-26
Practice Point: The plaintiff in a personal injury action must call the treating physician as a witness or adequately explain the failure to do so. In the absence of an adequate explanation, the defendant is entitled to a “missing witness” jury instruction.
ONLY A DEFECT APPARENT ON THE FACE OF THE NOTICE OF LIEN WARRANTS SUMMARY DISCHARGE OF A MECHANIC’S LIEN; ANY OTHER THEORY MUST AWAIT TRIAL OF THE FORECLOSURE ACTION (FIRST DEPT).
The First Department, reversing Supreme Court, determined petitioner should not have been awarded summary discharge of a mechanic’s lien. Summary discharge is available only when a defect in the lien is apparent on the face of the notice of lien. Any other theory must await trial of the foreclosure action:
The court should not have granted the petition for summary discharge of the mechanic’s lien that respondent placed on petitioner’s property. As relevant here, summary discharge of a lien is available “[w]here it appears from the face of the notice of lien that the claimant has no valid lien by reason of the character of the labor or materials furnished and for which a lien is claimed” (Lien Law § 19[6]). “[A] lien may be summarily discharged only for defects appearing on its face” … , and “any dispute regarding the validity of the lien must await trial of the foreclosure action” (… Matter of Northside Tower Realty, LLC v Klin Constr. Group, Inc., 73 AD3d 1072, 1072 [2d Dept 2010] [“A court has no inherent power to vacate or discharge a notice of lien except as authorized by Lien Law § 19(6)”]).
Petitioner identifies no defect appearing on the face of the notice of lien, raising instead lack of consent and other issues related to the validity of the lien. Those issues cannot be resolved under Lien Law § 19(6) … . Lien Law § 38 does not provide alternative grounds to affirm the lien discharge, as no court has issued an order requiring respondent to provide an itemized statement … . Matter of Broadway PT 1710 LLC v Kingdom Assoc., Inc., 2026 NY Slip Op 03624, First Dept 6-9-26
Practice Point: Any defect warranting summary discharge of a mechanic’s lien must be apparent on the face of the notice of lien.
THE ORAL COLLOQUY FOR THE WAIVER OF APPEAL WAS DEFECTIVE; THE DEFECT WAS NOT CURED BY THE WRITTEN WAIVER BECAUSE DEFENDANT WAS NOT ASKED WHETHER HE READ OR UNDERSTOOD IT BEFORE SIGNING; DEFENDANT DID NOT ADMIT TO HAVING AN INTENT TO COMMIT A CRIME WHEN HE ENTERED THE HOUSE, HE ADMITTED ONLY THE INTENT TO RETRIEVE HIS OWN PROPERTY; THE PLEA TO BURGLARY WAS VACATED (FOURTH DEPT).
The Fourth Department, vacating defendant’s guilty plea, determined defendant’s waiver of appeal was invalid and he did not admit to an essential element of burglary, the intent to commit a crime upon entering:
… [W]e agree with defendant that his waiver of the right to appeal is invalid. Supreme Court’s oral colloquy was overbroad inasmuch as the court told defendant that his waiver of the right to appeal marks the “end of the case.” Although the record establishes that defendant executed a written waiver of the right to appeal, the written waiver “does not cure the deficient oral colloquy because the court did not inquire of defendant whether he understood the written waiver or whether he had read the waiver before signing it” … .
Defendant contends that his plea is invalid because the plea allocution negated an element of the crime to which he pleaded guilty. As defendant acknowledges, he never moved to withdraw his plea, nor did he ever seek to vacate the judgment of conviction. This case, however, falls within the rare exception to the preservation requirement … . Burglary in the first degree requires that a person knowingly enter or remain unlawfully in a dwelling with the “intent to commit a crime therein” (Penal Law § 140.30). Here, defendant twice indicated during his factual allocution that he did not intend to commit any crimes when he entered the house in question and, while he admitted that he intended to retrieve his own property, retrieving one’s own property does not establish larcenous intent … . Although the court attempted to conduct an inquiry following defendant’s insistence that he did not intend to commit any crimes when he entered the house, such inquiry was insufficient … . The court therefore erred in accepting defendant’s guilty plea … . People v Small, 2026 NY Slip Op 03560, Fourth Dept 6-5-26
Practice Point: Re: a waiver of appeal, a defect in the oral appeal-waiver colloquy with the judge is not cured by a written waiver unless the defendant is asked whether he read and understood the written waiver before signing it.
Practice Point: Entering a home with the intent to retrieve one’s own property is not “burglary” because the entry was not accompanied by an intent to commit a crime.
HERE THE VILLAGE SOUGHT TO ANNUL THE CITY’S IMPOSITION OF HIGHER SEWER CHARGES; THE CITY INTERPOSED SEVERAL COUNTERCLAIMS THAT WERE BASED ON THEORIES NOT INCLUDED IN THE CITY’S EARLIER NOTICE OF CLAIM WHICH ALLEGED ONLY BREACH OF CONTRACT; BECAUSE THE COUNTERCLAIMS RAISED THEORIES NOT ENCOMPASSED BY THE CITY’S EARLIER NOTICE OF CLAIM, THEY WERE DISMISSED (FOURTH DEPT).
The Fourth Department, reversing (modifying) Supreme Court, determined all of the city’s counterclaims against the village should have been dismissed for failure to meet the “notice of claim” requirements. The village commenced this hybrid CPLR article 78 and declaratory judgment action seeking to annul the city’s determination to charge a higher rate for sewer services than had been charged under the parties “longtime agreement.” The city interposed counterclaims based on theories not encompassed by the city’s notice of claim. All the counterclaims should have been dismissed on that ground:
“CPLR 9802 sets forth the procedure by which certain actions against villages may be maintained” … . “In addition to providing for the maintenance of contract actions against villages, the statute also provides, in pertinent part, that ‘no other action shall be maintained against [a] village unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless a notice of claim shall have been made and served in compliance with [General Municipal Law § 50-e]’ ” …). Consequently, “[i]t is a condition precedent to, and indeed an essential element of, any cause of action . . . against a village that the [claimant] have served upon the village a notice of claim setting forth, inter alia, the nature of the claim and the items of damage or injuries claimed to have been sustained” … . “A claimant need not state a precise cause of action in haec verba in a notice of claim . . . , but a claimant may not raise in the [pleading] causes of action or legal theories that were not directly or indirectly mentioned in the notice of claim and that change the nature of the earlier claim or assert a new one” … . Furthermore, “the requirements of notice of claim statutes[, including CPLR 9802,] apply to the filing of counterclaims” … . “[T]he notice of claim requirements of CPLR 9802 [also] apply to . . . causes of action [or claims] for declaratory relief” … .
Here, the notice of claim was premised exclusively on the theory that the City was entitled to monetary damages and a declaratory judgment based on the Village’s alleged breach of the parties’ agreement. Conversely, the City’s first counterclaim seeks a declaration that the agreement had actually expired before the breach alleged in the notice of claim, and the third counterclaim seeks monetary damages for debt allegedly incurred by the Village after the purported expiration of the agreement. The fourth and fifth counterclaims for quantum meruit and unjust enrichment, respectively, are also premised on legal theories other than breach of contract. We thus conclude that those counterclaims improperly raise claims or legal theories “that were not directly or indirectly mentioned in the notice of claim and that change the nature of the earlier claim[s] or assert . . . new one[s]” … . Village of Allegany v City of Olean, 2026 NY Slip Op 03555, Fourth Dept 6-5-26
Practice Point: A condition precedent to an action against a village is the filing of a notice of claim. The condition applies to counterclaims and requests for declaratory judgments. Here the city’s earlier notice of claim against the village was based solely on an alleged breach of contract. The subsequent counterclaims raised by the city in response to the village’s Article 78 proceeding were based on theories not encompassed by the city’s earlier notice of claim and were dismissed on that ground.
MOTHER DEMONSTRATED THE SCHOOL DISTRICT HAD TIMELY ACTUAL KNOWLEDGE OF THE FACTS UNDERLYING THE ALLEGATION THE SCHOOL DISTRICT WAS NEGLIGENT IN ADDRESSING THE BULLYING OF HER SON; MOTHER’S APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (FOURTH DEPT).
The Fourth Department, reversing Supreme Court, determined claimant-mother demonstrated the school district had timely knowledge of the underlying facts of the potential negligence action against the district stemming from the bullying of her son. In addition, mother had a valid excuse for failing to file a timely notice of claim, i.e., she was involved in related Family Court proceedings against her son. Mother’s application for leave to file a late notice of claim should have been granted:
“General Municipal Law § 50-e (5) permits a court, in its discretion, to [grant leave] extend[ing] the time for a [claimant] to serve a notice of claim” (id. at 460-461). “The decision whether to grant such leave ‘compels consideration of all relevant facts and circumstances,’ including the ‘nonexhaustive list of factors’ in section 50-e (5)” … . ” ‘It is well settled that key factors for the court to consider in determining an application for leave to serve a late notice of claim are [1] whether the claimant has demonstrated a reasonable excuse for the delay, [2] whether the [school district] acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter, and [3] whether the delay would substantially prejudice the [school district] in maintaining a defense on the merits’ ” … . “The presence or absence of any given factor is not determinative of the application and, moreover, the factors are ‘directive rather than exclusive’ ” … .
We agree with claimant that respondent possessed actual knowledge of the essential facts constituting the claim within 90 days of its accrual … Claimant averred in her affidavit in support of the application that, during the relevant time period, she made numerous calls to the Waterloo Middle School and the Waterloo Village Police about the ongoing abuse and bullying of her son. Additionally, claimant submitted documentation pertaining to a Family Court proceeding that was brought against her son due to actions he took apparently out of his frustration with the alleged abuse and bullying. The documentation states that the school counselor was involved in that investigation and that claimant’s son was “well known” to him. The school counselor also expressed the opinion that the bullying incidents were “unfounded.” Cindy W. v Waterloo Cent. Sch. Dist., 2026 NY Slip Op 03554, Fourth Dept 6-5-26
Practice Point: Here, demonstrating that the school district had timely actual knowledge of the facts underling a negligence allegation against the district was a major factor in granting the application tor leave to file a late notice of claim.
HERE IN THIS PERSONAL INJURY ACTION, BASED ON PLAINTIFF’S ALLEGATION HE WAS AN INDEPENDENT CONTRACTOR WORKING FOR THE INSURED EMPLOYER, THE INSURER WAS OBLIGATED TO DEFEND THE EMPLOYER; INSTEAD THE INSURER DISCLAIMED COVERAGE AND PLAINTIFF TOOK A DEFAULT JUDGMENT AGAINST THE EMPLOYER; ON APPEAL, THE INSURER WAS FOUND LIABLE FOR THE DEFAULT JUDGMENT UP TO THE POLICY LIMITS (FOURTH DEPT).
The Fourth Department, reversing (modifying) Supreme Court, determined defendant insurer was obligated to defend plaintiff’s personal injury action against plaintiff’s employer, Lipinski. Plaintiff alleged he was an independent contractor. The insurer disclaimed coverage on the ground plaintiff was an employee entitled to workers’ compensation. But, because of plaintiff’s allegation he was an independent contractor, the insurer was obligated to defend: The insurer was therefore obligated to pay the damages assessed in the default judgment against Lipinski up to the policy limits:
An insurer’s “duty to defend is exceedingly broad and an insurer will be called upon to provide a defense whenever the allegations of the complaint suggest . . . a reasonable possibility of coverage” … . “If, liberally construed, the claim is within the embrace of the policy, the insurer must come forward to defend its insured no matter how groundless, false or baseless the suit may be” … . Here, the complaint in the underlying personal injury action alleged that plaintiff was an employee of Lisinski but also included the alternative allegation that plaintiff was an independent contractor. Thus, defendant was required at least to provide Lisinski with a defense … . Instead, defendant disclaimed coverage on the ground, inter alia, that plaintiff was an employee and therefore a policy exclusion precluded coverage inasmuch as plaintiff would be covered by a workers’ compensation claim. * * *
An insurer’s “duty to defend is exceedingly broad and an insurer will be called upon to provide a defense whenever the allegations of the complaint suggest . . . a reasonable possibility of coverage” … . “If, liberally construed, the claim is within the embrace of the policy, the insurer must come forward to defend its insured no matter how groundless, false or baseless the suit may be” … . Here, the complaint in the underlying personal injury action alleged that plaintiff was an employee of Lisinski but also included the alternative allegation that plaintiff was an independent contractor. Thus, defendant was required at least to provide Lisinski with a defense … . Instead, defendant disclaimed coverage on the ground, inter alia, that plaintiff was an employee and therefore a policy exclusion precluded coverage inasmuch as plaintiff would be covered by a workers’ compensation claim. Shattuck v Dryden Mut. Ins. Co., 2026 NY Slip Op 03538, Fourth Dept 6-5-26
Practice Point: Consult this decision for insight into the risks taken by an insurer which wrongfully refuses to defend the insured and disclaims coverage. Plaintiff procured a default judgment against the insured and sued the insurer directly. The insurer was liable for the default judgment up to the policy limits.
EVIDENCE THAT THE A-FRAME LADDER WAS NOT SECURED AND WAS “IMPROPERLY PLACED” WARRANTED SUMMARY JUDGMENT IN THIS LADDER-FALL CASE ON THE LABOR LAW 240(1) CAUSE OF ACTION; THERE IS NO NEED TO DEMONSTRATE THE LADDER WAS DEFECTIVE (FOURTH DEPT).
The Fourth Department, reversing Supreme Court, over a two-justice dissent which argued there are triable issues of fact, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this A-frame ladder-fall case. The court noted that plaintiff need not demonstrate the ladder was defective. It is sufficient to demonstrate the ladder was not secured and was “improperly placed:”
To establish a prima facie case of liability under Labor Law § 240 (1), a plaintiff must ” ‘show that the statute was violated and that the violation proximately caused [the] injury’ ” … . “Where a ladder is offered as a work-site safety device, it must be sufficient to provide proper protection. It is well settled that [the] failure to properly secure a ladder, to ensure that it remain[s] steady and erect while being used, constitutes a violation of Labor Law § 240 (1)” … . “[T]he fact that the ladder failed and [that the] plaintiff fell to the ground demonstrates that it was not so placed . . . as to give proper protection to [the plaintiff]” ( … “Evidence that the ladder was structurally sound and not defective is not relevant on the issue of whether it was properly placed” … ).
Here, plaintiff met his initial burden on the motion by submitting his deposition testimony wherein he testified that [an] … employee [of the lessor of the property] covered the ladder’s feet with socks [to protect the tile floor], that [the employee] instructed plaintiff to use the modified ladder, and that the socks caused the ladder to slide and plaintiff to fall. Plaintiff’s unrebutted testimony established that “the statute was violated and that the violation proximately caused his injury” … . Delisle v FBBT/US Props., LLC, 2026 NY Slip Op 03529, Fourth Dept 6-5-26
Practice Point: In this ladder-fall case, the unsecured ladder was not defective. Rather it was deemed “improperly placed” warranting summary judgment. It was alleged that socks placed over the feet of the ladder to protect the tile floor caused the ladder to slide.
A HEARING ON A DEFENDANT’S ELIGIBILITY FOR AN ALTERNATIVE SENTENCE PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) CANNOT BE WAIVED AS A CONDITION OF A PLEA AGREEMENT; SENTENCE VACATED AND MATTER REMITTED (FOURTH DEPT).
The Fourth Department, vacating defendant’s sentence and remitting the matter, determined defendant’s waiver of a hearing on whether he was eligible for an alternative sentence pursuant to the Domestic Violence Survivors Justice Act (DVSJA) was invalid:
Defendant appeals from a judgment convicting him, upon his plea of guilty, of two counts of manslaughter in the first degree (Penal Law § 125.20 [1]). As a condition of his plea, defendant waived his right to a Penal Law § 60.12 hearing to determine his eligibility for an alternative sentence under the Domestic Violence Survivors Justice Act. Inasmuch as “section 60.12 hearings are not waivable as a condition of a plea agreement” … , we agree with defendant that this matter must be remitted for further proceedings, including a Penal Law § 60.12 hearing should defendant request one … . We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for further proceedings…. . People v Jones, 2026 NY Slip Op 03527, Fourth Dept 6-5-26
Practice Point: A defendant cannot waive a hearing on eligibility for an alternative sentence pursuant to the DVSJA as a condition of a plea agreement. Here defendant’s sentence was vacated and the matter was remitted for a hearing if defendant requests it.
PETITIONER, THE GUARDIAN OF THE PERSON AND PROPERTY OF AN INCAPACITATED PERSON SINCE 2012, WAS ASKED TO RECERTIFY THE GUARDIANSHIP BY A NEW BANK WHICH TOOK OVER THE ACCOUNTS; PETITIONER SOUGHT TO CONTINUE THE TERMS OF THE 2012 ORDER; THE JUDGE SHOULD NOT HAVE, SUA SPONTE, MODIFIED THE TERMS OF THE ORIGINAL ORDER ABSENT A REQUEST FROM A PARTY TO DO SO (THIRD DEPT).
The Third Department, reversing (modifying) Supreme Court, determined the justice presiding over this guardianship proceeding should not have “sua sponte” changed the terms of the existing guardianship absent a request from a party to do so. The appellate courts do not like “sua sponte” rulings. The petitioner was appointed guardian of the person and property of an incapacitated person in 2012. This proceeding was prompted by a new bank which took over the incapacitated person’s accounts and requested that petitioner “recertify” his guardianship status. Petitioner brought this proceeding to continue the terms of the original 2012 order:
… [P]etitioner [the contends that Supreme Court erred in modifying the terms of the guardianship. We find this contention to have merit. As petitioner was appointed guardian in 2012, there was no basis to appoint a temporary guardian (see Mental Hygiene Law § 81.23 [a]). Nor was there a basis to remove the guardian (see Mental Hygiene Law § 81.35). Although a court may terminate or modify a guardian’s powers upon a showing that, “for some other reason, . . . the guardian is no longer necessary . . . or the powers of the guardian should be modified based upon changes in the circumstances of the incapacitated person” (Mental Hygiene Law § 81.36 [a] [4]), such application cannot be made sua sponte, but must “be made by the guardian, the incapacitated person, or any person entitled to commence a proceeding under this article” (Mental Hygiene Law § 81.36 [b] …). Nevertheless, when authorizing the powers that may be exercised by a guardian of the property, courts are to employ “the least restrictive form of intervention,” taking into consideration, among other things, the incapacitated “person’s wishes, preferences, and desires with regard to managing the activities of daily living” (Mental Hygiene Law § 81.21 [a]).
Here, there was no request before Supreme Court to modify the terms of the guardianship, as petitioner moved to continue the same terms of the original order to satisfy the requests of the new banking institution — specifically, petitioner’s access to “all bank accounts, annuity payments, entitlements and other financial resources in [respondent’s] possession or payable to her.” However, the order issued by Supreme Court failed to contain this language and otherwise did not conform to the requirements of the statute (see Mental Hygiene Law §§ 81.15 [c]; 81.16). To the extent that this order is further interpreted as increasing the powers of the guardian by requiring petitioner to now pay certain monthly expenses that respondent already successfully handles on her own, we agree with petitioner that the record does not support this change as being the least restrictive form of intervention (see Mental Hygiene Law § 81.21 [a]). Accordingly, this portion of Supreme Court’s order must be reversed and vacated. Matter of Karissa W., 2026 NY Slip Op 03490, Third Dept 6-4-26
Practice Point: The decision illustrates the appellate courts’ disapproval of sua sponte rulings, i.e,, rulings which are not precipitated by a party’s motion.
IN THIS BICYCLE ACCIDENT CASE, WHETHER A ONE-AND-A-QUARTER-INCH GAP IN THE ROADWAY WAS “OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS” SHOULD NOT HAVE BEEN DETERMINED AS A MATTER OF LAW; IT IS A QUESTION FOR THE JURY BASED ON ALL THE CIRCUMSTANCES (THIRD DEPT).
The Third Department, reversing Supreme Court, determined there were questions of fact precluding summary judgment in this bicycle-accident case based upon a 1 1/4 inch gap in the roadway. Supreme Court granted defendant’s summary judgment motion based, in part, on the conclusion that the defect was open and obvious and not inherently dangerous. The Third Department noted that whether a defect is open and obvious is usually a question for a jury:
To the extent Supreme Court dismissed the complaint based upon its conclusion that the gap was open and obvious and not inherently dangerous, we note that “[w]hether a condition is open and obvious does not preclude liability . . . as a matter of law; rather, it is a factor that impacts the foreseeability of an accident and the comparative negligence of the injured party” … . Indeed, “[t]he determination as to whether a condition is open and obvious generally falls within the province of a jury, as it requires consideration of the unique facts presented by the case before it” . “In this regard, the determination of whether an asserted hazard is open and obvious cannot be divorced from the surrounding circumstances, and whether a condition is not inherently dangerous, or constitutes a reasonably safe environment, depends on the totality of the specific facts of each case” … . Here … [plaintiff] indicated that his attention was occupied by a changing traffic light ahead and a moving motor vehicle to the left, and that there were cars parked to his right in… designated spots. Viewing all of the evidence in the light most favorable to plaintiffs as the nonmovants … , the record does not compel the conclusion that the gap was readily observable with the reasonable use of one’s senses and not inherently dangerous … . Stegman v City of Glens Falls, N.Y., 2026 NY Slip Op 03486, Third Dept 6-4-26
Practice Point: Here in this bicycle accident case, a 1 1/4 inch gap in the roadway could not be deemed “trivial” or “open and obvious and not inherently dangerous” as a matter of law.
THE ISSUANCE DATE OF A DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS) DECISION BY A HEARING OFFICER IS THE DATE THE DECISION IS MAILED; THE 60-DAY APPEAL PERIOD STARTS RUNNING ON THE DATE OF MAILING; HERE DOCCS DID NOT PROVE WHEN THE DECISION WAS MAILED AND THEREFORE FAILED TO PROVE THE APPEAL WAS UNTIMELY; THE DATE STAMPED BY A POSTAGE METER IS NOT NECESSARILY THE DATE OF MAILING (THIRD DEPT).
The Third Department, reversing Supreme Court, determined the respondent Department of Corrections and Community Supervision (DOCCS) did not demonstrate petitioner’s appeal of the suspension of her visiting rights was untimely. Petitioner is the fiancee of an incarcerated person and the suspension of visiting rights was related to an incident during one of the visits. The fiancee attempted to appeal the suspension. DOCCS argued that the appeal was untimely and Supreme Court agreed. The Third Department determined DOCCS failed to prove the appeal was untimely because it did not prove when the decision suspending visitation was mailed. Mailing triggers the 60-day period for appeal. The envelope in which the decision was mailed was stamped by a postage meter on January 8, 2024, but that does not prove it was mailed on January 8. Petitioner’s appeal was received by DOCCS on March 13, 2024. Without proof of the exact date the decision was mailed, DOCCS did not demonstrate the 60-day appeal period had expired on March 13:
… [P]etitioner’s 60-day appeal window began to run on the date the decision was mailed. * * *
… [T]he issuance date of the Hearing Officer’s decision is the day it was placed in the mail. … [R]espondents’ submissions in support of their motion to dismiss do not reveal this date. Although the record contains a copy of the envelope in which the decision was mailed, it shows only the date the envelope was put through a postage meter, which “is not the equivalent of a postmark date” … . Respondents have not proffered an affidavit of mailing to establish the date it was placed in the mail. As such, respondents did not meet their burden of establishing that claimant’s appeal was untimely … . Matter of Moses v New York State Dept. of Corr. & Community Supervision, 2026 NY Slip Op 03485, Third Dept 6-4-26
Practice Point: If an appeal period is triggered by when a decision is mailed, the party attempting to prove the appeal was untimely must prove precisely when the decision was mailed. The date stamped by a postage meter is not proof of the the precise date of mailing.
DEFENDANT’S STATEMENT THAT THERE WAS A WEAPON IN HIS BACKPACK WAS A RESPONSE TO A DIRECT QUESTION BY A POLICE OFFICER AND WAS THEREFORE NOT ADMISSIBLE AS “SPONTANEOUS;” THE STATEMENT AND THE WEAPON SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).
The Third Department, reversing County Court, suppressed a statement made by the defendant and the handgun seized from defendant’s backpack based on defendant’s statement. Defendant’s statement that the backpack contained a weapon was not spontaneous. It was made in response to a direct question by a police officer who had possession of the backpack and could feel the weapon inside:
At the suppression hearing, the sergeant who conducted the subject search testified that, upon removing the fanny pack from defendant’s backpack, he perceived that the fanny pack was heavy and contained a hard object “shaped like a pistol.” At that point, defendant, being booked 8 to 10 feet away, offered, “I can tell you what’s in there.” The sergeant inquired, “Yeah? What’s in there?,” to which defendant replied, “It’s a pistol.” In view of defendant’s detention and arrest, the location of the search and the sergeant’s admitted knowledge that the fanny pack contained a heavy pistol-shaped object, his question asking defendant what was contained inside the fanny pack was reasonably likely to trigger an incriminating statement — i.e., that the fanny pack contained a gun. As such, County Court erred in determining that defendant’s statements were spontaneous, and they should have been suppressed … . * * *
At the hearing, the sergeant confirmed that defendant’s backpack had already been secured when defendant was detained, handcuffed and placed in the rear seat of the vehicle — although it remains unclear at precisely what point defendant’s detention ripened into an arrest. The sergeant also established that law enforcement retained control of the backpack at all times thereafter and that he carried it into the station separately as defendant was escorted by another officer and booked in a different area. Defendant’s backpack was thus not on his person or within his immediate control or “grabbable area” at the time the search was conducted so as to raise concerns over evidence destruction … . * * * Although the circumstances presented may have, upon a different record, supported the validity of an inventory search conducted pursuant to standardized police procedures, the People neither relied upon nor developed such a theory at the suppression hearing, electing instead to defend the search solely as one incident to arrest, and any passing attempt to raise that theory now is not properly before us … . On this record, we cannot agree that the People carried their burden to overcome the presumption of unreasonableness that attaches to a warrantless search, and the physical evidence therefore should have also been suppressed … . People v Pittman, 2026 NY Slip Op 03478, Third Dept 6-4-26
Practice Point: Here the statement by defendant that there was a weapon in his backpack was made in direct response to a police officer’s question. The statement, therefore, was not admissible as “spontaneous.” The statement and the weapon seized in a search based on the statement should have been suppressed.
WITHOUT A PAT-DOWN FRISK, THE OFFICER WHO MADE THE TRAFFIC STOP DID NOT HAVE PROBABLE CAUSE TO BELIEVE DEFENDANT POSSESSED A WEAPON; THE OFFICER’S SEARCH OF DEFENDANT’S JACKET POCKETS WAS NOT, THEREFORE, JUSTIFIED BY PROBABLE CAUSE; BECAUSE THE OFFICER TESTIFIED HE DID NOT INTEND TO ARREST THE DEFENDANT AT THE TIME OF THE SEARCH, THE SEARCH WAS NOT A VALID SEARCH INCIDENT TO ARREST; SUPPRESSION OF THE SEIZED WEAPONS SHOULD HAVE BEEN GRANTED (THIRD DEPT).
The Third Department, reversing County Court, vacating defendant’s plea and conviction, and granting the motion to suppress, determined the officer who made the traffic stop should not have searched defendant’s pockets without first doing a pat-down frisk for weapons. The search was not justified by probable cause to believe defendant possessed a weapon, and the search was not justified as a search incident to arrest. The officer testified he did not intend to arrest the defendant at the time of the search:
Although the trooper testified that he conducted the search to ensure that defendant was unarmed, the record contains no evidence that the trooper possessed a reasonable suspicion that defendant was armed or posed a threat to his safety. In any event, such a suspicion would have justified only a limited pat-down of the jacket’s exterior rather than an invasive search of its pockets. Moreover, although the trooper attempted to justify the search through testimony that he believed there was “something on the inside” of the left side of defendant’s jacket because it felt “heavier than normal,” he did not make this observation until after he had already exceeded the permissible scope of a lawful pat down by unzipping and opening defendant’s jacket. Accordingly, the search cannot be sustained as a protective pat down of defendant.
… [I]t is now well settled that, for a search to be authorized as incident to arrest, law enforcement must either actually effectuate the arrest or possess a contemporaneous intent to arrest at the time the search is conducted … . Critically, the intent to arrest must relate to the offense purportedly justifying the search, even if the defendant is ultimately arrested for a different offense … . Absent such intent, a search cannot be retroactively legitimized based on a decision to arrest that is made only after the discovery of additional evidence during the search … . Here, the trooper’s hearing testimony unequivocally establishes that he had no intent to arrest defendant at the time he conducted the search, and that the decision to arrest was not made until after he discovered the weapon in the interior pocket of defendant’s jacket. People v Roberts, 2026 NY Slip Op 03476, Third Dept 6-4-26
Practice Point: Consult this decision for discussions of the criteria for (1) asking a driver to step out of the car after a traffic stop, (2) a protective pat-down search of the driver, (3) the search of the driver’s pockets based on probable cause, and (4) the search of driver’s pockets as a search incident to arrest.
THE PEOPLE DID NOT PROVE THE SEARCH OF DEFENDANT’S VEHICLE WAS A VALID INVENTORY SEARCH, CRITERIA EXPLAINED IN DETAIL; TWO HANDGUNS AND HEROIN FOUND IN HIDDEN COMPARTMENTS SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).
The Third Department, reversing County Court, determined the search of defendant’s vehicle was not a valid inventory search. Two handguns and heroin found in hidden compartments were suppressed by the Third Department:
Although the failure to admit into evidence the relevant tow, impound or inventory search protocols is not automatically fatal, the People’s additional failure “to ask any substantive questions of the [state troopers] to establish that the policy was sufficiently standardized, that it was reasonable and that the [state troopers performing the search] followed it in this case” does become fatal … . Despite the fact that the testimony of the state troopers confirmed their general understanding of the purpose and legitimate objectives served by an inventory search, their testimony also demonstrated a lack of familiarity with any departmental protocol on how to conduct such a search or whether any protocol even existed — must less a procedure that limited their discretion … . Indeed, there was no testimony establishing the circumstances under which troopers could remove paneling or pry into compartments, such as under the steering wheel column or dashboard … . Nor was there any testimony regarding when a canine unit could be used to assist with an inventory search — and, even assuming such a protocol did exist, it would remain unclear how a canine unit could satisfy the legislative objectives required by law under the circumstances here, where defendant was in custody and the vehicle had already been towed to the State Police barracks … . While inventory search protocols either allowing or disallowing exploration into the compartment of a steering wheel column or the use of a canine unit could be “equally permissible,” having “no policy whatever” is what causes the subject search to not be “sufficiently regulated to satisfy the Fourth Amendment” … .
Moreover, the inventory form generated by the search included the loaded revolver that was found at the barracks — although the form indicated that the inventory search had been completed prior to the tow to the barracks. This fact, coupled with the realization that the items listed on the inventory form were almost entirely the hidden contraband — and not the bag on the back seat containing the Suboxone pills and loose bullet, or the other clothing and perishables testified to be in the vehicle — indicates the troopers’ search was not designed to produce a usable inventory to guard against claims of lost property or for officer safety, but to list evidence of a crime … . Accordingly, County Court should have granted defendant’s motion to suppress the evidence of heroin and the two handguns. People v Russ, 2026 NY Slip Op 03475, Third Dept 6-3-26
Practice Point: Consult this decision for an in-depth discussion of the criteria for a valid inventory search, not met here.
THE STAY ON A NEW YORK ACTION TO RECOVER A NAZI-LOOTED PAINTING, PENDING A SWISS RULING ON THE IDENTITY OF THE HEIRS TO THE PAINTING, VACATED IN THE INTEREST OF JUSTICE (FIRST DEPT).
The First Department, in a full-fledged opinion by Justice Higgitt, determined a stay on a New York action seeking the return of a Nazi-looted painting should be vacated in the interest of just. The action had been stayed pending a Swiss ruling on the identity of the heirs to the painting. That ruling has yet to be made. The facts of the case are complex and cannot be fairly summarized here. Estate of Margaret Kainer v Christies Inc., 2026 NY Slip Op 03506, First Dept 6-4-26
DECEDENT’S DAUGHTER RAISED QUESTIONS OF FACT ABOUT DECEDENT’S WIFE’S FITNESS TO ADMINISTER THE ESTATE; SURROGATE’S COURT SHOULD HAVE HELD A HEARING TO DETERMINE THE FACTS (THIRD DEPT).
The Third Department, reversing Surrogate’s Court, determined the decedent’s daughter had raised questions of fact about whether decedent’s wife was fit to administer the estate. Surrogate’s Court should have held a hearing to determne the facts:
… [T]he wife, as the surviving spouse of the decedent, established prima facie entitlement to letters of administration pursuant to SCPA 1001. However, the daughter’s opposition papers raised triable issues of fact about the wife’s eligibility to serve as administrator. Her averments that the wife stole or destroyed a purported will of the decedent, neglected to pay the decedent’s bills, discarded estate property and engaged in misconduct in the administration of another estate, if credited, may constitute dishonesty or improvidence within the meaning of SCPA 707 (1). Finally, the considerable hostility between the parties, which led to an order of protection and other court proceedings, is undisputed. Viewing the evidence in the light most favorable to the daughter, and mindful that Surrogate’s Court is limited at this stage to identifying triable issues of fact, not resolving credibility or weighing the evidence, the daughter’s submissions were sufficient to create a factual dispute that required a hearing before determining the wife’s motion … . Accordingly, Surrogate’s Court erred in granting the wife’s motion for summary judgment granting her letters of administration and dismissing the daughter’s competing petition without first conducting a hearing to determine whether the wife is disqualified pursuant to SCPA 707. Matter of Kosier, 2026 NY Slip Op 03491, Third Dept 6-4-26
Practice Point: Consult this decision for a detailed explanation of the proper procedure when questions of fact about the honesty of a person seeking to be appointed administrator of an estate are raised.
DISMISSAL OF A MOTION BECAUSE THE PAPERS DID NOT INCLUDE A WORD-COUNT CERTIFICATION WARRANTED REVERSAL AND REMITTAL TO CONSIDER THE MOTION (SECOND DEPT).
The Second Department, reversing Supreme Court, determined the motion court’s denial of a motion because the papers failed to include a word-count certification warranted reversal a remittal to consider the merits of the motion:
The Supreme Court should have overlooked the appellants’ failure to submit a word count certification with their motion for summary judgment, as no substantial right of any party was prejudiced … . Accordingly, we reverse. Since the Supreme Court did not consider the merits of the motion, we remit the matter … for a new determination on the merits of the motion. Hodges v 37-11 30th St., LLC, 2026 NY Slip Op 03428, Second Dept 6-3-26
THAT PLAINTIFF IN A TRAFFIC ACCIDENT CASE DID NOT HAVE A PROPER DRIVER’S LICENSE DOES NOT RAISE A QUESTION OF FACT ABOUT PLAINTIFF’S COMPARATIVE NEGLIGENCE (FIRST DEPT).
The Frist Department, reversing Supreme Court, noted that the fact that plaintiff in this traffic accident case did not have a proper driver’s license at the time of the accident did not raise a question of fact about plaintiff’s purported comparative negligence:
… [T]hat plaintiff was driving without a proper driver’s license does not provide a basis for finding an issue of fact as to comparative negligence (see Huff v Rodriguez, 88 AD3d 1274, 1275 [4th Dept 2011] …”[“the absence or possession of a driver’s license is not relevant to the issue of negligence”]). Torres v Occhino, 2026 NY Slip Op 03412, First Dept 6-2-25
Practice Point: In a traffic accident case, the fact that plaintiff did not have a proper driver’s license does not raise a question of fact about plaintiff’s purported comparative negligence.
SUPREME COURT HAD RULED THAT, AT THE TIME HE WAS STRUCK BY A FALLING OBJECT, PLAINTIFF WAS NOT ENGAGED IN A TASK COVERED BY THE LABOR LAW; PLAINTIFF’S TASK AT THE EXACT MOMENT OF THE ACCIDENT IS NOT DISPOSITIVE; THE LABOR LAW COVERS ALL TASKS NECESSARY AND INCIDENTAL TO THE RELEVANT WORK, HERE THE REMOVAL OF DEBRIS FROM THE WORKSITE (FIRST DEPT).
The First Department, reversing Supreme Court, determined plaintiff’s activities were within the scope of the Labor Law when he was struck by a falling object. Plaintiff was struck when returning to the truck he had just moved. Defendants successfully argued below that, at the time of his injury, plaintiff was not engaged in work covered by the Labor Law. The First Department disagreed:
Plaintiff was injured when an object, alleged to be a pallet or a skid, fell on his head while he was working as a garbage truck driver at an active construction site owned by defendant MIP One Wall Street Acquisition LLC and where defendant J.T. Magen & Company Inc. was the general contractor. Plaintiff’s employer, Independence Carting, had contracted with J.T. Magen to perform Saturday carting services at the site. Plaintiff drove the garbage truck to the loading area where J.T. Magen laborers tasked with debris removal at the construction site loaded construction debris onto the truck while plaintiff operated the truck’s compacting machinery. J.T. Magen laborers directed plaintiff to move the garbage truck to another location in the loading dock area for additional construction debris to be loaded. At this second location, plaintiff exited the truck to check its position. When returning to the truck he was hit on the head by an object alleged to be a pallet or skid that fell from an elevated platform adjacent to plaintiff’s truck.
Plaintiff’s task at the exact moment of his accident is not dispositive of whether he was engaged in a protected activity … . “Rather, the inquiry includes whether the plaintiff’s employer was contracted to perform the kind of work enumerated in the statutes . . . and whether the plaintiff was performing work ‘necessary and incidental to’ a protected activity” … . Here, plaintiff was performing construction debris removal services at the construction site pursuant to a contract between J.T. Magen and his employer. The record establishes that the work he was performing was necessary and incidental to construction-related cleaning for an active construction site … . Therefore, plaintiff was protected by the Labor Law. Lapinski v MIP One Wall St. Acquisition LLC, 2026 NY Slip Op 03392, First Dept 6-2-26
Practice Point: The exact task performed by a worker at the time of an accident is not dispositive of whether the accident is within the scope of the Labor Law. Here plaintiff’s employer was hired by the general contractor to remove debris from a worksite. The fact that the plaintiff was struck by a falling object after moving a truck at the request of employees of the general contractor did not take the accident out of the scope of the Labor Law.
CLAIMANT’S APPLICATION SHOULD NOT HAVE BEEN DENIED BECAUSE OF INADVERTENT OMISSIONS FROM THE FORM RB-89; CLAIMANT SHOULD HAVE BEEN NOTIFIED AND GIVEN 20 DAYS TO CURE THE OMISSIONS; OR THE OMISSIONS SHOULD HAVE BEEN IGNORED BY THE BOARD (THIRD DEPT).
The Third Department, reversing the Workers’ Compensation Board, determined the Board should not have denied the application based on inadvertent omissions from the form RB-89:
… [T]he Legislature has made clear that “[n]otwithstanding anything contained in 12 NYCRR 300.13 (b)[,] . . . a mistake, omission, defect and/or other irregularity in a [form RB-89] accompanying an application for administrative review . . . shall not be grounds for denial of said application” (Workers’ Compensation Law § 23-a [1] …). The Board is instead directed to either notify the party seeking review about such a problem in writing and give the party 20 days to correct it, or disregard the problem altogether if the substantial rights of the relevant parties are not impacted by it (see Workers’ Compensation Law § 23-a [3]). There is no indication here that the Board notified claimant in writing of the deficiencies in her initial form RB-89 and, after the carrier pointed them out, claimant provided proof that the defects in the form were inadvertent and that the application had been filed and served in a timely manner. The carrier made no effort to challenge that proof, nor did it argue that it had been prejudiced in any way by the flaws in the initial form RB-89 submitted by claimant. To be sure, Workers’ Compensation Law § 23-a “addresses technical defects in the contents of applications for Board review rather than the associated service requirements,” and nothing prohibits the Board from denying applications where the latter are not satisfied … . This record shows that claimant did satisfy all filing and service requirements and only failed to note that fact on her initial form RB-89, however, and “the Board’s regulations requiring that an application for Board review be filled out completely and/or correctly may not abdicate, contravene or be inconsistent” with the provisions of Workers’ Compensation Law § 23-a … . Thus, as the Board’s denial of claimant’s application ran afoul of Workers’ Compensation Law § 23-a and its underlying goal of ensuring that “small mistake[s] on a cover sheet should not be cause for a full denial of an appeal,” it constituted an abuse of discretion and cannot stand … . Matter of Price v Premium Brands Opco, LLC, 2026 NY Slip Op 03346, Third Dept 5-28-26
Practice Point: Workers’ Compensation Law section 23-a prohibits the denial of an application based on inadvertent omissions from the Form RB-89.
THE SORA RISK-LEVEL GUIDELINES CONSIDER A SEX OFFENDER’S YOUTH (UNDER 20) AS AN AGGRAVATING FACTOR WARRANTING AN ASSESSMENT OF TEN POINTS; HERE DEFENDANTS ARGUED THEIR YOUTH SHOULD BE CONSIDERED A MITIGATING FACTOR; THAT ISSUE CAN ONLY BE ADDRESSED BY THE LEGISLATURE, NOT THE COURTS (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a three-judge concurrence, determined the defendants’ young age at the time of the offenses (below 20) was adequately taken into account by the SORA risk-level guidelines in that the guidelines assess additional points based on an offender’s youth. In other words, the guidelines consider the offender’s youth as an aggravating factor for which 10 points is assessed. The defendants’ argument that their youth should be a mitigating factor can only be addressed by the legislature, not the courts:
Defendants’ argument that scientific research suggests that young age at the time of offense lowers the risk of reoffense and so is a mitigating factor meriting a downward departure amounts to a policy dispute with the legislature’s instruction to the Board to consider that factor, and with the Board’s corresponding decision to include age below 20 at the time of first offense as a basis for the assessment of ten points in the RAI [risk assessment instrument]—not an argument that the RAI does not “fully capture the nuances of [their] case” … . It is the Board that has a “legislative mandate to promulgate” the Guidelines … , and disagreement with the basis on which a factor is premised or with the manner in which the Board implements that mandate is “for the legislature and the Board to consider, and not within the scope of this Court’s authority” … . Indeed, ” ‘[t]he constitutional principle of separation of powers . . . requires that the Legislature make the critical policy decisions’ ” … . Here, the legislature did that by instructing the Board to consider as “indicative of a high risk of repeat offense” “the age of the sex offender at the time of the commission of the first sex offense” (Correction Law § 168-l [5] [a] [v], [d]). The Board, based on its expertise and experience and within the exercise of its discretion, in turn implemented this legislative directive by requiring the assessment of points under risk factor 8 where an offender committed a first sex offense before the age of 20 … . There is no legal basis for reaching the opposite conclusion in the guise of a judicially-fashioned “mitigating” factor. The legislature, and in turn the Board, may of course reconsider this approach to age as an indicator of likelihood of reoffense. People v Carnegie, 2026 NY Slip Op 03379, CtApp 5-28-26
Practice Point: A defendant seeking a downward departure from the SORA risk-level assessment cannot argue the defendant’s youth as a mitigating factor. The guidelines consider a defendant’s youth as an aggravating factor requiring the assessment of ten points. Only the legislature can change the guidelines.
ALTHOUGH A DEFENDANT CAN PROPERLY REQUEST A DOWNWARD DEPARTURE FROM THE SORA RISK-LEVEL ASSESSMENT BASED ON HIS “RELEASE ENVIRONMENT.” I.E., GAINFUL EMPLOYMENT, STRONG FAMILY SUPPORT, ETC., THE DEFENDANT MUST DEMONSTRATE THE “RELEASE ENVIRONMENT” WAS NOT ADEQUATELY TAKEN INTO ACCOUNT BY THE GUIDELINES AND HIS “RELEASE ENVIRONMENT” REDUCES THE LIKELIHOOD OF REOFFENDING (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Cannataro. over a three-judge concurrence, affirming the Appellate Division, determined that a defendant’s “release environment” can be considered as a basis for a downward departure, but that the Appellate Division properly found defendant did not demonstrate his “release environment” made his reoffending less likely and his “release environment” had been adequately accounted for by the Guidelines:
In support of his downward departure request, defendant emphasized that he had been living offense-free in the community for the 3½ years since his release from incarceration and argued that there were mitigating factors not adequately accounted for by the Guidelines, including, as relevant here, his gainful full-time employment and strong family support. He explained that he had worked as a food delivery driver, obtained his commercial driver’s license, become a full-time truck driver, and eventually purchased his own tractor-trailer and founded a freight trucking business. Additionally, defendant supplemented his income by working nights and weekends parking cars as a production assistant on film sets. He viewed his recent history of full-time employment as a significant contributor to a reduced risk of reoffense, characterizing his past crimes as being “financially motivated.” In further support of this proposed mitigating factor, defendant cited to statistics documenting the difficulties faced by many formerly incarcerated people, especially sex offenders, in obtaining employment, as well as a publication concerning the importance of structured, full-time employment in preventing recidivism. To establish his alleged strong family support network, defendant referenced his committed relationship with the mother of his young child, and submitted brief letters from four family members and a former landlord asserting that he was a family-oriented man who had been rehabilitated. He also cited to Appellate Division caselaw treating strong family support as a mitigating factor. Defendant maintained that a departure to risk level one would provide adequate supervision and community notification, without overestimating his likelihood of reoffense. * * *
The potentially risk-reducing effects of … steady employment in an appropriate setting or housing with, or in close proximity to, supportive family or friends …can be asserted as mitigating circumstances … so long as the offender can establish that those circumstances are present to a degree not adequately accounted for by the Guidelines … . * * *
The Appellate Division did not err or abuse its discretion in denying defendant’s request for a downward departure. Significantly, the Court did not expressly reject defendant’s proposed mitigating factors as a matter of law, but went on to conclude that he failed to meet his burden of establishing that the proposed mitigating factors existed in this case. … [T]he Court … concluded … defendant failed * * * to demonstrate how “his support system” would reduce his risk of reoffense … . People v Green, 2026 NY Slip Op 03378, CtApp 5-28-26
Practice Point: A defendant’s “release environment” (gainful employment, family support, etc.) can be considered by a SORA court as a mitigating factor supporting a downward departure. Here the SORA court properly considered defendant’s “release environment” but determined his environment was adequately taken into account by the guidelines and defendant did not demonstrate how his “release environment” would make his reoffending less likely.
HERE THE SORA RISK-LEVEL GUIDELINES DID NOT ADEQUATELY TAKE INTO ACCOUNT DEFENDANT’S ATYPICAL CRIMINAL HISTORY; THEREFORE AN UPWARD DEPARTURE FROM LEVEL ONE TO LEVEL TWO WAS APPROPRIATE (CT APP).
The Court of Appeals, affirming the SORA court and the Appellate Division, determined the SORA risk-level guidelines did not adequately take into account the defendant’s criminal history which supported an upward departure to a level two sex offender:
… [A]n offender’s prior criminal history can warrant an upward SORA departure in an appropriate case. Although such history is plainly a factor “of a kind” contemplated by the Guidelines under risk factors 9 and 10, an offender’s atypical prior criminal history may be an aggravating factor “to a degree” for which the Guidelines inadequately account … .
This case proves the point. The timing, nature, and extent of defendant’s three sex offenses and violent felony supply record support for the affirmed finding that defendant’s prior criminal history was indeed atypical. Risk factor 9 relevantly assesses the maximum 30 points for a prior “violent felony, . . . misdemeanor sex crime, or endangering the welfare of a child, or any . . . sex offense” (Guidelines, risk factor 9 [emphasis added]). Defendant’s prior conviction of attempted first-degree robbery, or either of his two prior convictions of forcible touching, would thus have each independently yielded 30 points under this factor. Defendant stood convicted of all three crimes, yet he was assessed the same number of points under this factor as a defendant previously convicted of just one of them. Likewise, risk factor 10 assesses the maximum 10 points for committing the instant offense within three years at liberty after committing a felony or sex crime. Here, defendant committed the instant offense after eight months at liberty following his commission of a prior felony, yet he was assessed the same number of points under this factor as a defendant who abstains from reoffending for more than four times as long. Given these facts, the lower courts did not err in concluding that risk factors 9 and 10 inadequately accounted for defendant’s prior criminal history as an aggravating factor. People v Townsend, 2026 NY Slip Op 03377, CtApp 5-28-26
Practice Point: Where the SORA risk-level guidelines do not adequately take into account a defendant’s atypical criminal history, an upward departure is appropriate.
A CONTRACT WHICH ALLOWS A PARTY “SOLE DISCRETION” TO ASSIGN A LOAN IS CONSTRAINED BY THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING; HERE IT WAS ALLEGED THE ASSIGNMENT WAS PART OF A “BACKROOM DEAL” TO EXCLUDE PLAINTIFF FROM A DEVELOPMENT PROJECT AND BENEFIT FROM A RESULTING WINDFALL; THE BREACH OF THE IMPLIED COVENANT CAUSE OF ACTION WAS REINSTATED BY THE COURT OF APPEALS (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a three-judge partial dissent, reversing (modifying) thee Appellate Division, determined the cause of action alleging breach of the implied covenant of good faith and fair dealing should not have been dismissed. The complex facts of the case center around loans and contracts to develop a luxury residential tower. Under the Pledge Agreement at issue the defendant, Apollo, had “sole discretion” to assign a “junior mezzanine loan.” The majority concluded that the “sole discretion” did not override the implied covenant of good faith and fair dealing. Plaintiff alleged the assignment of the loan to “Spruce” was part of a “backroom deal” to push plaintiff out of the project’s capital structure and benefit from a resulting windfall:
We concur with the prevailing view among the Appellate Division departments—that a party’s “sole discretion” with respect to a right does not exculpate that party from complying with the implied covenant with respect to that right. Although “parties to a contract are basically free to make whatever agreement they wish, no matter how unwise it might appear to a third party . . . [t]here exists an unavoidable tension between the concept of freedom to contract . . . and the equally fundamental belief that an enlightened society must to some extent protect its members from the potentially harsh effects of an unchecked free market system” … . In light of those competing interests, “rightly or wrongly, society has chosen to intervene in various ways in the dealings between private parties,” for example by “mandating the express or implicit inclusion of certain substantive or procedural provisions in various types of contracts” … . Indeed, one of those implicit substantive provisions is the implied covenant, which has the primary purpose of ensuring that “neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract,” when that conduct is “inconsistent with the other terms of the contractual relationship,” and yet not negotiated for in advance … .
This doctrine is even more important “where a contract contemplates the exercise of discretion,” or in other words awards one party the freedom to act in ways the contract may not directly foresee … . Accordingly, the implied covenant obligates the party with discretion act in good faith, and “not [] arbitrarily or irrationally,” when “exercising that discretion” … . A promisor’s discretion may not be used to violate a promise that “a reasonable person in the position of the promisee would be justified in understanding w[as] included” … . 111 W. 57th Inv. LLC v 111 W57 Mezz Inv. LLC, 2026 NY Slip Op 03376, CtApp 5-28-26
Practice Point: A contract provision allowing a party “sole discretion” to take certain actions is constrained by the implied covenant of good faith and fair dealing. i.e., a party cannot exercise discretion in a way that frustrates another party’s rights under the contract.