You are here: / PLAINTIFF WAS INJURED WHEN A PIECE OF WIRE STRUCK HIS EYE WHEN HE WAS USING...

Search Results

/ ,

PLAINTIFF WAS INJURED WHEN A PIECE OF WIRE STRUCK HIS EYE WHEN HE WAS USING A NAIL GUN; PLAINTIFF DID NOT ELIMINATE QUESTIONS OF FACT ABOUT WHETHER THE WORK HE WAS DOING REQUIRED EYE PROTECTION WITHIN THE MEANING OF THE RELEVANT INDUSTRIAL CODE PROVISION; THEREFORE PLAINTIFF SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT ON THE LABOR LAW 241(6) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not demonstrate defendant was required to provided eye protection for the work plaintiff was engaged in at the time his eye was injured:

The plaintiff allegedly was injured while operating a nail gun to attach wood plates to a building roof when debris from a metal wire to which nails were secured, such that they could be loaded into the nail gun, flew off and hit his right eye. * * *

Labor Law § 241(6) imposes a nondelegable duty on owners and contractors to provide reasonable and adequate protection and safety for workers without regard to direction and control … . “In order to establish liability under Labor Law § 241(6), a plaintiff must ‘establish the violation of an Industrial Code provision which sets forth specific safety standards,’ and which ‘is applicable [to the facts] of the case'” … . Industrial Code (12 NYCRR) § 23-1.8(a) requires the furnishing of eye protection equipment to employees who, inter alia, are “engaged in any . . . operation which may endanger the eyes.”

Here, the plaintiff’s submissions failed to eliminate a triable issue of fact as to whether, at the time of his accident, the plaintiff was engaged in work that “may endanger the eyes” so as to require the use of eye protection pursuant to Industrial Code (12 NYCRR) § 23-1.8(a) … . Chuqui v Cong. Ahavas Tzookah V’Chesed, Inc., 2024 NY Slip Op 02166, Second Dept 4-24-24

Practice Point: Although plaintiff was struck in the eye by a piece of wire when using a nail gun, he did not eliminate questions of fact about whether the work he was doing triggered the eye-protection requirement in the Industrial Code. Therefore plaintiff was not entitled to summary judgment on his Labor Law 241(6) cause of action.

 

/ , ,

PLAINTIFF IN THIS TRAFFIC ACCIDENT CASE ALLEGED DEFENDANT DRIVER WAS DEFENDANT COMPANY’S EMPLOYEE AND WAS ACTING WITHIN THE SCOPE OF EMPLOYMENT AT THE TIME OF THE ACCIDENT; DEFENDANT COMPANY FAILED TO DEMONSTRATE THE DRIVER WAS AN INDEPENDENT CONTRACTOR, NOT AN EMPLOYEE; THE FACT THAT THE EMPLOYMENT CONTRACT USES THE TERM “INDEPENDENT CONTRACTOR” IS NOT DISPOSITIVE OF THE ISSUE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined defendant employer in this traffic accident case did not demonstrate the defendant driver was an independent contractor as opposed to an employee acting within the scope of employment:

… [Plaintiff] allegedly was injured when a vehicle he was operating collided with a vehicle owned and operated by the defendant Luis F. Leal. * * * The plaintiffs alleged … that Leal was [defendant] Publishers’ employee, and that Leal was acting within the scope of his employment at the time of the accident. …

“The doctrine of respondeat superior renders a master vicariously liable for a tort committed by his [or her] servant within the scope of employment. Conversely, the general rule is that an employer who hires an independent contractor is not liable for the independent contractor’s negligent acts” … . “[T]he critical inquiry in determining whether an employment relationship exists pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results” … . “Factors relevant to assessing control include whether the worker (1) worked at his [or her] own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer’s payroll and (5) was on a fixed schedule” … . “The fact that a contract exists designating a person as an independent contractor is to be considered, but is not dispositive” … . Whether an actor is an independent contractor or an employee is usually a factual issue for a jury … . Brielmeier v Leal, 2024 NY Slip Op 02163, Second Dept 4-24-24

Practice Point: An employer may be responsible for the negligence of an employee, but is not responsible for the negligence of an independent contractor. The fact that the employment contract uses the term “independent contractor” is not dispositive. The relevant criteria are explained.

 

/ , , ,

CHARTER SCHOOLS ARE NOT SUBJECT TO THE NOTICE OF CLAIM REQUIREMENTS IN THE EDUCATION LAW AND GENERAL MUNICIPAL LAW; PLAINTIFF-STUDENT, WHO HAD BEEN BULLIED AND WAS PUSHED TO THE FLOOR BY ANOTHER STUDENT, RAISED QUESTIONS OF FACT SUPPORTING THE NEGLIGENT SUPERVISION CAUSE OF ACTION (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Iannacci, determined (1) charter schools are not subject to the notice of claim requirements of the Education Law and the General Municipal Law, and (2) plaintiff student, who allegedly had been bullied and was pushed to the floor by another student when the hallway was unsupervised, raised questions of fact supporting the negligent supervision cause of action:

Since charter schools are independent from school districts with respect to civil liability, financial obligations, and liability insurance coverage, it stands to reason that the extraordinary safeguards of prelitigation notification of claims applicable to school districts, municipalities and other wholly public entities would not apply to charter schools. * * *

The evidence presented triable issues of fact as to whether there were monitors present in the hallway at the time of the incident as required by the School’s policies and procedures and whether the presence of such monitors could have prevented the alleged pushing incident … . A. P. v John W. Lavelle Preparatory Charter Sch., 2024 NY Slip Op 02205, Second Dept 4-24-24

Practice Point: Charter schools are not subject to the notice-of-claim requirement in the Education Law and General Municipal Law; i.e., a plaintiff suing a charter school for negligence need not file or serve a notice of claim as a condition precedent.

 

/ ,

A JUROR WAS CONVINCED DEFENDANT HAD FOLLOWED HER HOME AND SO INFORMED THE JURY DURING DELIBERATIONS; THE JUROR WAS “GROSSLY UNQUALIFIED” AND DEFENDANT’S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED (CT APP).

The Court of Appeals, reversing defendant’s conviction and ordering a new trial, in a full-fledged opinion by Judge Wilson, determined a juror should have been dismissed as “grossly unqualified,” and a mistrial should have been granted:

Upon a jury verdict, the trial court convicted Kenneth Fisher of three counts of third-degree criminal possession of a controlled substance (PL 220.16) arising from two controlled buy operations. He was sentenced to nine years in prison. One of the jurors in Mr. Fisher’s case was certain that Mr. Fisher had followed her home after the first day of jury selection, a belief the trial court deemed likely unfounded. Instead of promptly informing the court of her concern, she instead waited three days, until the case was submitted to the jury, and then expressed her safety concern to the other jurors as they deliberated. Those facts established that the juror was “grossly unqualified” pursuant to CPL 270.35, because it was clear she “possesse[d] a state of mind which would prevent the rendering of an impartial verdict” … . Although the trial judge then elicited some assurances that the juror could put aside her concerns, those assurances were insufficient to support a conclusion that the juror should be retained. Therefore, the juror should have been dismissed and a mistrial granted. * * *

Strongly held, prejudicial beliefs about the defendant which are not based on the trial evidence strike at the heart of the right to an impartial jury, and therefore render a juror “grossly unqualified” unless the bias can be cured or set aside. Given the extent of Juror Six’s prejudicial beliefs and her introduction of those beliefs into deliberations, it was error to conclude that the issue was cured merely by “yes” answers to formulaic questions. People v Fisher, 2024 NY Slip Op 02129, CtApp 4-23-24

Practice Point: A juror who believed defendant had followed her home and who so informed the jury during deliberations was “grossly unqualified” requiring a mistrial declaration.

 

/ , , ,

IT WAS NOT ERROR TO REMOVE THE DISRUPTIVE DEFENDANT FROM THE COURTROOM WITHOUT WARNING JUST PRIOR THE THE ANNOUNCEMENT OF THE VERDICT AND THE POLLING OF THE JURY; APPELLATE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RAISE THE “REMOVAL” ISSUE ON DIRECT APPEAL (CT APP).

The Court of appeals, in a full-fledged opinion by Judge Rivera, over an extensive dissenting opinion, reversing the grant of a writ of coram nobis, determined: (1) defendant was properly removed from court without warning before the verdict and the poll of the jurors; and (2) appellate counsel was not ineffective for failing to raise defendant’s removal from the court on direct appeal. Removal was justified by the defendant’s acts of violence, verbal abuse and screaming in the courtroom:

We reject the prosecution’s claim that any error was de minimis based on the timing of defendant’s removal from the courtroom. There is no material stage of the proceeding that is any less consequential to a defendant’s right to be present. However, we agree that the trial court’s actions were appropriate under the unique circumstances of this case and in no way contrary to law.

A defendant has a constitutional right “to be present at all material stages of their criminal trial,” which includes the reading of the verdict and the polling of the jury … . Further, CPL 260.20 provides that a defendant must be present during the trial but may be removed if they are “disorderly and disruptive” such that the “trial cannot be carried on with [the defendant] in the courtroom [] if , after [they] have been warned by the court that [they] will be removed if [they] continue such conduct, [they] continue to engage in such conduct.” A court may dispense with the constitutional and statutory warnings when it is impracticable to give them … . … That was the case here. * * *

The Appellate Division erroneously concluded that the trial court violated defendant’s right to be present, and therefore incorrectly granted defendant’s writ of error coram nobis on the sole ground that appellate counsel was ineffective for failing to raise this meritless claim on direct appeal … . People v Dunton, 2024 NY Slip Op 02130, CtApp 4-23-24

Practice Point: In situations where warning a disruptive defendant is impractical, it is not error to remove the defendant from the courtroom without warning. Here defendant was removed just prior to the announcement of the verdict and the polling of the jurors, a material stage of the trial. Under the unique circumstances of this case defendant’s removal was not error.

 

/ , , , ,

IN THIS MENTAL HYGIENE LAW ARTICLE 10 PROCEEDING TO DETERMINE WHETHER RESPONDENT SEX OFFENDER SUFFERED FROM A MENTAL ABNORMALITY WARRANTING CIVIL MANAGEMENT, THE JUDGE CONFLATED TWO DIFFERENT LEGAL STANDARDS, ERRONEOUSLY FOUND THAT A MENTAL ABNORMALITY CANNOT BE PROVEN BY A CONSTELLATION OF CONDITIONS, DISEASES AND DISORDERS, AND IMPROPERLY RELIED ON OUTSIDE RESEARCH (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Singh, over an extensive dissenting opinion, reversing Supreme Court and ordering a new trial, determined several errors by the judge in this Mental Hygiene Law article 10 proceeding tainted the judge’s finding that the state had not proven respondent sex offender suffered from a mental abnormality and required civil management:

This article 10 proceeding arose out of respondent Richard V.’s 2002 conviction of rape in the first degree. In October 2001, respondent and an accomplice posed as plumbers to gain entry to the apartment of a female acquaintance. After the woman brought them inside, respondent subdued her with pepper spray, restrained her, repeatedly attacked her, threatened to kill her, and twice violently raped her.* * *

The sole issue at the bench trial was whether respondent suffers from a mental abnormality that “predisposes [him] to the commission of conduct constituting a sex offense” resulting in “having serious difficulty [] controlling such conduct” … . At the second stage of an article 10 proceeding — the dispositional phase — the standard is whether a respondent has “such an inability to control his behavior that [he] is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” …

There can be little dispute that Supreme Court conflated the applicable legal standards. * * *

… Supreme Court committed reversible error in finding that the State could not use a “constellation” of conditions, diseases, and disorders to establish that respondent has a mental abnormality. * * *

Supreme Court’s extensive usage of outside research blurred the lines between the roles of judge and counsel, depriving the parties of the opportunity to respond … . Matter of State of New York v Richard V., 2024 NY Slip Op 02158, First Dept 4-23-24

Practice Point: When a judge does outside research to inform the decision, the parties are deprived of the opportunity to respond.

 

/ ,

THE TRIAL JUDGE SHOULD HAVE HELD AN INDEPENDENT-SOURCE HEARING BEFORE ALLOWING THE UNDERCOVER OFFICER TO IDENTIFY THE DEFENDANT AT TRIAL; HEARING AND NEW TRIAL ORDERED (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, reversing the conviction and ordering an independent-source hearing and a new trial, found the record insufficient to determine whether the undercover officer had an independent source for his in-court identification of the defendant. Supreme Court, rather than holding an independent-source hearing, relied on the undercover officer’s prior testimony at the probable cause hearing. But the Court of Appeals found that testimony insufficient:

… [W]e address whether Supreme Court erred when it denied defendant’s motion for an independent source hearing and, instead, used an undercover police officer’s prior testimony at a probable cause hearing to render a determination on whether the officer had an independent source for his prospective in-court identification of defendant. … [T]he trial court erred in admitting the undercover officer’s in-court identification without a hearing record sufficient to support an independent source determination for the identification. * * *

… [At the probable cause hearing] the undercover testified that he had never interacted with the seller before the date in question and did not interact with the seller directly during the buy and bust. Although the undercover described the seller’s clothes, he did not provide a physical description of the seller. He did, however, testify about his close proximity to the seller—close enough to hear that the intermediary and the seller were having a conversation, but not their words. … [H]is testimony did not address how long the seller was within his sight or the nature of his confirmatory identification of defendant. People v Williams, 2024 NY Slip Op 02128, CtApp 4-23-24

Practice Point: Here the trial judge relied on the officer’s testimony at the probable cause hearing to demonstrate the officer had an independent source for his in-court identification of the defendant. The testimony was deemed too weak to demonstrate an independent source. New trial and independent-source hearing ordered.

 

/ ,

APPELLANTS IMPROPERLY DEDUCTED ROYALTY PAYMENTS RECEIVED FROM FOREIGN AFFILIATE CORPORATIONS WHICH WERE NOT SUBJECT TO NEW YORK FRANCHISE TAXES (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a two-judge concurrence, determined the appellant corporations improperly deducted royalty payments received from foreign affiliates not subject to New York’s franchise taxes:

Under a taxation scheme in effect from 2003 through 2013, New York allowed corporations that paid franchise taxes in New York to deduct income received as royalty payments from members of the same corporate group, or family, in calculating their taxable income. The deduction was allowed only if the royalty payment came from a related entity that had already paid a New York tax on the same income through operation of another provision in the Tax Law that required companies to add back royalty payments made to related entities for the purposes of calculating their own taxable income.

In these cases, the state Department of Taxation and Finance determined that appellants improperly deducted royalty payments they received from affiliates in foreign countries that were not subject to New York franchise taxes and, so, were not required to add those payments back on a New York tax return. Appellants challenge the Tribunal’s denial of the deduction as being contrary to the clear language of the statute and as violating the Commerce Clause’s prohibition on discrimination against foreign commerce. Because the Appellate Division correctly interpreted the statutes as permitting a tax deduction only where a related subsidiary was subject to the add back requirement, and because any burden on interstate or foreign commerce created by this tax scheme was incidental and did not violate the dormant Commerce Clause, we affirm. Matter of Matter of Walt Disney Co. & Consol. Subsidiaries v Tax Appeals Trib. of the State of New York, 2024 NY Slip Op 02127, CtApp 4-23-24

Practice Point: Corporations may not deduct royalties received from foreign affiliate corporations which are not subject to New York’s franchise taxes.

 

/ , ,

FOR-PROFIT NURSING HOMES’ CHALLENGE TO ADJUSTED MEDICAID REIMBURSEMENT RATES REJECTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing (modifying) the Appellate Division, rejected petitioner for-profit nursing homes’ challenges to the adjusted Medicaid reimbursement rates which were to be implemented as of April 1, 2020:

… [W]e reject petitioners’ challenges to adjusted Medicaid reimbursement rates issued to comply with amended Public Health Law (“PHL”) § 2808 (20) (d), which mandates the elimination of one component from the computation formula used to set rates of for-profit residential health care facilities, on or after April 1, 2020. The amendment and the adjusted rates do not result in a retroactive effect and petitioners failed to establish that the rates are not “reasonable and adequate to meet costs” under PHL § 2807 (3) or that the rates violate their equal protection rights. We hold that respondents may implement the recalculated rates for services provided as of April 2, 2020 … . * * *

Petitioners, 116 for-profit nursing homes, filed this hybrid declaratory judgment and article 78 proceeding against State respondents—the Department [of Health] and its Commissioner and the Director of the Budget—challenging the Department’s implementation of the recalculated rates without the residual equity reimbursement factor. Simultaneously, petitioners moved for a preliminary injunction to prevent respondents from enforcing the equity elimination clause. Supreme Court granted petitioners’ motion for a preliminary injunction against enforcement of the clause pending a final determination of the proceeding. Matter of Aaron Manor Rehabilitation & Nursing Ctr., LLC v Zucker, 2024 NY Slip Op 02126, CtApp 4-23-24

Practice Point: The procedures and criteria for challenges to Medicaid reimbursement rates for for-profit nursing homes explained in depth.

 

/ ,

BEFORE ADMITTING NON-EYEWITNESS TESTIMONY TO IDENTIFY DEFENDANT IN A VIDEO, THE BASIS SHOULD BE DETERMINED OUTSIDE THE PRESENCE OF THE JURY, THE PARTY OFFERING THE WITNESS MUST DEMONSTRATE THE RELIABILITY OF THE WITNESS, AND THE NEED FOR THE TESTIMONY MUST BE DEMONSTRATED; IN ADDITION, A THOROUGH RECORD MUST BE CREATED AND THE JURY SHOULD BE INSTRUCTED THEY ARE FREE TO REJECT THE NON-EYEWITNESS IDENTIFICATION (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Halligan, reversing the Appellate Division, over a concurrence, determined the “non-eyewitness” who purported to identify the defendant in a video was not shown to be sufficiently familiar with the defendant and there was no showing that the jury faced an obstacle to making the identification:

This case concerns an increasingly prevalent issue: when may someone who is not an eyewitness to a crime testify to a jury that the defendant is the person depicted in a photo or video. We hold that such testimony may be admitted where the witness is sufficiently familiar with the defendant that their testimony would be reliable, and there is reason to believe the jury might require such assistance in making its independent assessment. Here, there was no showing that the proffered witness was sufficiently familiar with the defendant to render his testimony helpful, or that the jury faced an obstacle to making the identification that the witness’s testimony would have overcome. * * *

… [B]efore admitting lay non-eyewitness identification testimony, a court should inquire as to the basis of the witness’s familiarity outside the presence of the jury in a separate hearing or voir dire, as the court properly did here. The party offering the witness—in most cases the People—bears the burden of establishing that their testimony would both be helpful and necessary. … [I]t is incumbent on both parties to create a thorough record to aid the court in its determination and to allow for meaningful appellate review. … [I]t would be appropriate for the trial court to provide cautionary jury instructions, both at the time of the testimony and during the final charge, explaining to the jury that lay non-eyewitness identification testimony is mere opinion testimony that they may choose to accept or reject, and reminding the jurors that because they are the finders of fact, it is their opinion as to whether the defendant is depicted in the surveillance footage that matters … . People v Mosley, 2024 NY Slip Op 02125, CtApp 4-23-24

Practice Point: Here the Court of Appeals offers guidance on the use of non-eyewitness testimony to identify the defendant in a video. The reliability of the witness and the need for the testimony must be demonstrated outside the presence of the jury. A full record must be made. And the jury should be instructed they are free to reject the testimony.

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy