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HERE THE DISTRICT ATTORNEY BROUGHT A PETITION FOR A WRIT OF PROHIBITION TO PROHIBIT THE ENFORCEMENT OF AN ORDER PRECLUDING EVIDENCE BECAUSE THE PEOPLE’S PRODUCTION OF DISCOVERY WAS DEEMED UNTIMELY; A WRIT OF PROHIBITION DOES NOT LIE FOR THIS PURPOSE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Quirk, determined that the trial judge’s preclusion of evidence based upon the district attorney’s untimely production of discovery was not subject to the extraordinary remedy of prohibition. The petition for a writ of prohibition was brought by the then district attorney:

Granting prohibition here would constitute improper collateral interlocutory review. This point is underscored by the Legislature’s amendment of CPL 450.20 to permit the People to appeal as of right from the portion of an order dismissing an accusatory instrument or some of its counts pursuant to CPL 245.80(2). In enacting this amendment, the Legislature chose to limit the types of appeals available to the People and did not permit the People to appeal from orders granting other remedies or sanctions under CPL 245.80(2), including orders precluding evidence, regardless of whether such orders would prevent the People from prosecuting a case. Contrary to the petitioner’s contentions, although the nonappealability of an order may be considered as a factor in favor of prohibition as part of the second step of the two-tiered analysis, “nonreviewability by way of appeal alone, does not provide a basis for reviewing error by collateral proceeding in the nature . . . of prohibition”  … .

Since a writ of prohibition does not lie, the Supreme Court should have denied that branch of the petition which was to prohibit the enforcement of the order of preclusion.  Matter of Rocah v McCarthy, 2026 NY Slip Op 03967, Second Dept 6-24-26

Practice Point: A writ of prohibition does not lie to prohibit the enforcement of an order precluding evidence becasue the production of discovery by the People was deemed untimely.

 

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FOR PURPOSES OF THE “RELATION-BACK DOCTRINE,” A DEFENDANT CAN BE VICARIOUSLY LIABLE FOR THE WORK OF AN INDEPENDENT CONTRACTOR IF THE WORK IS “INHERENTLY DANGEROUS;” THE EXCAVATION WORK WAS “INHERENTLY DANGEROUS;” THE PLAINTIFF’S MOTION TO AMEND THE COMPLAINT TO ADD THE INDEPENDENT CONTRACTORS AFTER THE STATUTE OF LIMITATIONS HAD RUN SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court., determined plaintiff’s motion to amend the complaint by adding independent contractors hired in connection with excavation work on adjacent property should have been granted. The excavation work caused plaintiff’s building to collapse. The statute of limitations for the negligence causes of action had run. A defendant can be vicariously liable for the actions of independent contractors if the work is “inherently dangerous.” Because this work was “inherently dangerous,” the defendants and the independent contractors are “united in interest” such that the relation-back doctrine applies:

… [T]he plaintiff satisfied the second prong of the relation-back test with respect to the causes of action sounding in negligence and gross negligence, as the plaintiff established that the proposed defendants and the original defendants were united in interest as to those causes of action. “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'” … . However, this general rule is subject to various exceptions, including where the work performed is inherently dangerous … . In this case, the amended complaint and the proposed second amended complaint alleged sufficient facts demonstrating that the work being performed was inherently dangerous and, thus, the original defendants could be held vicariously liable for the negligent acts or omissions of the proposed defendants … . Further, the plaintiff satisfied the third prong of the relation-back test, as the plaintiff demonstrated that the proposed defendants knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against them as well … . Accordingly, the Supreme Court should have granted that branch of the plaintiff’s motion which was pursuant to CPLR 3025(b) for leave to amend the amended complaint to add the proposed defendants as defendants with respect to the causes of action sounding in negligence and gross negligence … . Crossbay Assoc., LLC v Singh, 2026 NY Slip Op 03941, Second Dept 6-24-26

Practice Point: A party can be vicariously liable for the work done by an independent contractor if the work is “inherently dangerous.” The excavation work at issue in this case was deemed inherently dangerous.

 

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THE JUDGE SHOULD NOT HAVE GRANTED A DEFAULT JUDGMENT, SUA SPONTE, AGAINST A DEFENDANT NOT NAMED IN PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; THE PHRASE IN PLAINTIFF’S SUMMARY JUDGMENT MOTION REQUESTING “SUCH OTHER RELIEF” AS IS DEEMED APPROPRIATE CANNOT BE THE BASIS FOR DISPOSITIVE RELIEF (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the judge should not have, sua sponte, granted a default judgment against defendant Molina in this foreclosure action. There were two defendants, Pena and Molina. Pena answered the complaint but Molina did not. The notice of motion seeking summary judgment did not mention Molina. Therefore the judge should not have granted relief not demanded by the plaintiff:

“Among the statutory requirements [set forth in CPLR 2214(a) and (b)] is that notices of motion set forth ‘the relief demanded and the grounds therefor.’ The failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders a resulting order void” … . In other words, “[a] court lacks jurisdiction to grant relief against a defaulting party where that relief is not requested in the moving papers” … .

Here, since the plaintiff did not move for leave to enter a default judgment against Molina, the Supreme Court should not have, sua sponte, granted that relief … . As the court lacked jurisdiction to grant such relief … , so much of the order … , as, sua sponte, granted leave to enter a default judgment against Molina was rendered void … , “‘warranting vacatur pursuant to CPLR 5015(a)(4)'” … . As to the court’s reliance on the language in the notice of motion seeking “such other and further relief that this Court deems just and proper,” this Court has explicitly held that courts may not “rely upon general relief clauses in noticed motions—’for such other and further relief the court deems just and proper’—to justify the sua sponte [granting of dispositive relief]” … . Citimortgage, Inc. v Pena, 2026 NY Slip Op 03940, Second Dept 6-24-26

Practice Point: The phrase in motion papers requesting “such other relief as is deemed appropriate” cannot be the basis for dispositive relief.​

 

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PLAINTIFF’S STATEMENT THE LADDER MOVED SIDE TO SIDE CAUSING HIM TO FALL AND PLAINTIFF’S STATEMENT HE LOST HIS BALANCE ARE NOT INCONSISTENT; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Suprem[e Court, determined plaintiff in this ladder-fall case was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff testified the ladder moved side to side. A medica report indicated plaintiff said he lost his balance. The two statements were not inconsistent:

Plaintiff, who fell from an eight-foot A-frame ladder while installing sheetrock, established his prima facie entitlement to summary judgment on his Labor Law § 240(1) cause of action through his testimony that the ladder moved from side to side and caused him to fall … .

… [Even] if plaintiff’s hearsay statement contained in his post-accident medical report and post-accident investigation report that he lost his balance may be considered, it is not inconsistent with his testimony that the ladder moved and caused him to fall … . Gomez v Brookfield Props. One WFC Co., LLC, 2026 NY Slip Op 03921, First Dept 6-23-26

Practice Point: The statement that a ladder-fall resulted from movement of the ladder from side to sided and the statement that the ladder-fall resulted from plaintiff’s losing his balance are not inconsistent and do not create a question of fact.

 

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IN THESE TWO DISTINCT CASES, THE DEFENDANTS CHALLENGED THE CONSENT-TO-SEARCH CONDITION OF THEIR PROBATION; IN “BRAZEAL” THE COURT HELD THE CONDITION WAS NOT WARRANTED BY DEFENDANT’S CRIMINAL HISTORY; IN “LORA” THE COURT REFUSED TO CONSIDER THE ARGUMENT BECAUSE IT WAS NOT RAISED BEFORE THE SENTENCING COURT (CT APP).

​The Court of Appeals, reviewing two decisions, with multiple concurring and dissenting opinions, determined (1) in People v Brazeal the probation condition allowing searches by probation officers was deemed inappropriate given defendant’s criminal history, and (2) in People v Lora the defendant made the same challenge to the consent-to-search probation condition, but since the issue was not preserved, merits were not reached:

We conclude that the sentencing court abused its discretion in imposing the consent-to-search condition on Brazeal. Although his conviction was for a crime of violence, at no point was Brazeal shown to otherwise possess firearms or illegal weapons, and the knife used in his crime was an ordinary kitchen knife. The Appellate Division referenced his “history of violence” … , but that characterization overstates the defendant’s relatively remote criminal history. He had a previous conviction for property destruction in Las Vegas, a harassment conviction with “physical contact” in the Bronx, and a youthful offender adjudication for assault in Yonkers, the most recent of which was almost a decade before the present offense. The 2007 youthful offender adjudication is the only other incident that references the use of an unspecified “weapon/instrument,” and only the 2007 and 2009 proceedings included assault charges. None of Brazeal’s arrests in Georgia resulted in further prosecution apart from an outstanding warrant for failure to appear. Aside from these facts, the record reflects no basis for the imposition of the condition. Brazeal has not been assessed as being in need of alcohol or substance abuse treatment, the People concede that substance abuse is not implicated in his case, and his admission of occasional marijuana use in the past does not support further supervision. On this record, the sentencing court abused its discretion by imposing a condition that was not “individually tailored in relation to the offense[ ]” or to Brazeal’s “rehabilitation” … .

Because she did not object to the consent-to-search condition before the sentencing court, Lora’s statutory and constitutional challenges are unpreserved for our review … . People v Brazeal, 2026 NY Slip Op 03910, CtApp 6-23-26

Practice Point: To appeal a consent-to-search condition of probation (to the Court of Appeals), the issue must be preserved by raising it in the sentencing court.

 

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DEFENSE COUNSEL PURSUED A REASONABLE ALTERNATIVE STRATEGY IN MOVING TO SUPPRESS DEFENDANT’S STATEMENTS THAT DID NOT REQUIRE AN INVESTIGATION INTO DEFENDANT’S MENTAL HEALTH AND SUBSTANCE ABUSE; THEREFORE DEFENSE COUNSEL’S PURPORTED FAILURE TO INVESTIGATE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over an extensive dissenting opinion, determined defense counsel’s purported failure to investigate defendant’s mental health and substance abuse history in order to challenge the voluntariness of defendant’s statements to police did not constitute ineffective assistance of counsel. Counsel’s decision to employ an alternative strategy was reasonable:

Defendant’s assigned counsel later moved to suppress defendant’s statements. At a pretrial hearing, counsel argued that defendant provided those statements while operating under a reasonable belief that he would be given immunity in exchange for his information, and therefore the statements were involuntary. Counsel supported that argument with a variety of evidence, including, among other things, defendant’s refusal to offer any statements until he could speak with an assistant district attorney (ADA), an unrecorded conversation with an ADA, and a note in the police file in defendant’s handwriting stating that he would need immunity and payment in exchange for his information. Counsel also relied upon defendant’s Miranda waiver form, on which he crossed out “defendant” and wrote in “C.I.,” for confidential informant. Defendant also testified at the suppression hearing that he had been offered immunity by the ADA during the unrecorded conversation.  * * *

In 2019, while his direct appeal was still pending, defendant moved to vacate the judgment pursuant to CPL 440.10. He argued that his trial counsel was ineffective for failing to investigate his history of mental health disorders and substance abuse. The court ordered a hearing, at which defendant’s trial counsel testified. Counsel asserted that although he was aware of defendant’s mental health and substance abuse history, defendant “had given [counsel] such a clear picture” of what happened that “was supported by documentary evidence” and that in counsel’s “50 years of practicing [he had] never had a case where [he had] seen, or known of a case where [he had] seen that a person” who shared defendant’s mental health diagnosis successfully suppress a statement on that ground. People v Fernandez, 2026 NY Slip Op 03915, CtApp 6-23-26

Practice Point: Although defendant’s mental health and substance abuse history may have been used to argue his statements to police were not voluntary, defense counsel felt that argument would fail and pursued a reasonable alternative strategy which did not require a mental-health and substance-abuse investigation. Defense counsel was therefore not “ineffective.”

 

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THE NYS AND NYC “RIGHT TO RECORD ACTS,” WHICH GIVE CITIZENS THE RIGHT TO RECORD POLICE ACTIVITIES, DO NOT ALLOW RECORDING IN PUBLICLY ACCESSIBLE POLICE-STATION LOBBIES (CT APP).

The Court of Appeals, answering a certified question from the Second Circuit, determined that the NYS and NYC Right to Record Acts (RTRA’s), which allow citizens to record police activities, do not allow recording inside police stations:

We … do not opine as to the full scope of the RTRAs’ application or any other places where the RTRAs may apply. We reformulate the question as follows:

“Does either N.Y. Civil Rights Law § 79-p or Administrative Code of the City of New York §§ 14-189 afford individuals such as plaintiff Reyes the right to video record law enforcement activities inside the publicly accessible lobbies of police stationhouses?”

We answer that question in the negative. Reyes v City of New York, 2026 NY Slip Op 03914, CtApp 6-23-26

 

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PLAINTIFF SOCIAL MEDIA PLATFORMS BROUGHT SUIT IN FEDERAL COURT CLAIMING CERTAIN PROVISIONS OF NEW YORK’S “HATEFUL CONDUCT LAW” (HCL) VIOLATE THE FIRST AMENDMENT; THE SECOND CIRCUIT CERTIFIED THREE NARROW QUESTIONS ABOUT THE MEANING AND APPLICABILITY OF THE STATUTE TO THE COURT OF APPEALS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a three-judge dissent, answering narrow certified questions from the Second Circuit, determined the meaning of certain provisions of the Hateful Conduct Law (HCL) which is codified in General Business Law section 394-ccc: The law seeks to address “hateful conduct” on social media platforms:

In response to increasing violence fueled by hateful rhetoric on social media, the legislature enacted General Business Law § 394-ccc (hereinafter the “Hateful Conduct Law” or “HCL”) with the aim of “requiring social media networks to provide and maintain mechanisms for reporting hateful conduct on their platform[s]” … . Before the law became effective, the social media network plaintiffs obtained a stay of its enforcement from the federal district court, claiming that its provisions would effectively compel them to speak out against hateful conduct and otherwise chill the publication of qualifying content in violation of the First Amendment.

In reviewing that order on appeal, the United States Court of Appeals for the Second Circuit has certified three questions to us concerning the scope of the statute. The first two questions essentially ask whether a social media network can comply with the HCL without explicitly referencing its definition of hateful conduct. Applying our ordinary canons of statutory construction, we answer those questions in the affirmative. The third certified question essentially asks whether the statute requires a social media network to respond to a user report of hateful conduct. We answer that question in the negative. Volokh v James, 2026 NY Slip Op 03913, CtApp 6-23-26

 

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THE LABOR LAW PREVAILING-WAGE PROVISIONS APPLY TO PUBLIC WORKS CONTRACTS; ANY CONTRACTUAL ATTEMPT TO SHORTEN THE STATUTE OF LIMITATIONS IS UNENFORECABLE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, answering two certified questions from the Second Circuit, determined (1) the Labor Law provisions requiring that workers receive the prevailing wage for public works projects apply irrespective of the language in a contract, and (2) any provisions purporting to shorten the statute of limitation periods in public works contracts are unenforceable:

We have accepted two certified questions from the United States Court of Appeals for the Second Circuit concerning third-party beneficiary breach of contract claims to enforce the right of a public works project employee to receive a prevailing wage under the Labor Law. We hold that Labor Law § 220 makes such claims available regardless of the underlying contract’s language and that given the unique status of the constitutional and statutory right to a prevailing wage, agreements to shorten limitation periods in public works contracts are unenforceable against such claims. ​Walton v Comfort Sys. USA (Syracuse), Inc., 2026 NY Slip Op 03911, CtApp 6-23-26

 

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PLAINTIFF SUED THE DEVELOPER OF PROPERTY ADJACENT TO PLAINTIFF’S BUILDING ALLEGING EXCAVATION WORK CAUSED PLAINTIFF’S BUILDING TO SETTLE AND LEAN; THE CITY ISSUED A STOP-WORK ORDER STEMMING FROM PLAINTIFF’S COMPLAINT; DEFENDANT-DEVELOPER THEN COUNTERCLAIMED ALLEGING PLAINTIFF WAS NEGLIGENT IN NOT MAINTAINING PLAINTIFF’S BUILDING SUCH THAT THE EXCAVATION WORK WOULD NOT DAMAGE IT, RESULTING IN THE STOP-WORK ORDER AND CAUSING THE DEVELOPER PURELY ECONOMIC LOSS OF AT LEAST $16 MILLION; SUPREME COURT LET THE COUNTERCLAIM STAND BUT THE FIRST DEPARTMENT DISMISSED IT; PLAINTIFF DID NOT OWE A DUTY TO THE DEVELOPER AND THE DEVELOPER WAS NOT ENTITLED TO PURELY ECONOMIC DAMAGES (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Moulton, determined the defendant-developer’s counterclaim alleging plaintiff was negligent should have been dismissed. Plaintiff sued the developer alleging excavation and construction on the developer’s property, which is adjacent to plaintiff’s building, caused plaintiff’s building to settle and lean. Defendant-developer counterclaimed alleging plaintiff was negligent in not maintaining plaintiff’s building such that the excavation would would not damage it. The counterclaim alleged economic harm ($16 million) stemming from a stop-work order triggered by the plaintiff’s complaint:

The negligence counterclaim asserts that plaintiff “had a duty to construct and maintain the 1992 Building in compliance with the [Building] Code” and “a duty to maintain the 1992 Building in a reasonable and safe condition.” It contends that, as evidenced by three structural engineering reports, the building was “not constructed in compliance with the Code,” “remains in violation of the Code” and “was constructed and remains in an unsafe condition.” … The counterclaim further asserts that, on December 13, 2023, as a result of these conditions, “the DOB issued a partial Stop Work Order for the Project Site, forcing [the developer] to stop construction on its own property because of structural instability of the 1992 Building that was caused by the 1992 Building’s non-compliance with the Code and [plaintiff’s] failure to maintain the 1992 Building in a reasonable condition.” According to the developer, it was “harmed by the delay in construction . . . due to this stoppage” in an amount not less than $16 million. The developer does not allege that plaintiff’s negligent design, construction, and maintenance of its building caused any bodily injury or property damage.

This appeal raises two novel issues: 1) whether Supreme Court correctly held that plaintiff owes the developer a common-law duty as an adjacent landowner to protect the developer’s excavation/foundation work from construction delays arising out of the stop work order and, 2) assuming the existence of a duty based on plaintiff’s status as an adjacent landowner, whether the court correctly held that the developer could recover purely economic damages.

We now answer both questions in the negative and reverse. 1992 Third Realty LLC v Third Ave NY Realty LLC, 2026 NY Slip Op 03871, First Dept 6-18-26

Practice Point: The owner of a building which is damaged by excavation work on an adjacent building by a developer, does not owe a duty to the developer to maintain his building such that the excavation work would not damage it.

 

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