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THE INDUSTRIAL CODE PROVISION WHICH GENERALLY PROHIBITS WORK IN AN AREA WHERE A WORKER CAN BE STRUCK BY EXCAVATION EQUIPMENT IS NOT SPECIFIC ENOUGH TO HOLD A CONSTRUCTION SITE OWNER VICARIOUSLY LIABLE PURSUANT TO LABOR LAW 241(6); PLAINTIFF WAS STRUCK BY AN EXCAVATOR WHICH ROTATED INTO HIM (CT APP)

The Court of Appeals, affirming the Appellate Division, over a three-judge dissent, determined the Industrial Code provision at issue was not specific enough to support a Labor Law 241(6) cause of action for plaintiff’s injury. Plaintiff was struck by the back corner of an excavator which rotated into him. Industrial Code 23-4.2 (k) provides “[p]ersons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment or by any material being dislodged by or falling from such equipment” … :

The references to “area” and “endangered” in section 23-4.2 (k) represent the type of “broad, nonspecific regulatory standard[s]” that this Court has held insufficient to support “an action against a non-supervising owner or general contractor” … . Section 23-4.2 (k) does not include a minimum distance that must be maintained between a worker and any excavation equipment, and its protections are not limited to any specific class of worker. The section also does not identify any protective measures or reasonable precautions that a site owner must take in order to comply with the section. Nor does section 23-4.2 (k) provide clear guidance about how owners and contractors should provide reasonable and adequate protection and safety for workers. It merely states a general prohibition with broad applicability, lacking any specific directions. While the safety of workers is a critical concern, the language of section 23-4.2 (k) does not meet the legal standard for specificity required to hold site owners vicariously liable under the Labor Law.  Mann v Mezuyon, LLC, 2026 NY Slip Op 03257, CtApp 5-26-26

Practice Point: Consult this opinion for insight into the level of specificity required before an Industrial Code provision can be the basis for holding a construction site owner vicariously liable for a worker’s injury pursuant to Labor Law 241(6). Here the Industrial Code’s general prohibition against allowing workers in an area where they can be struck by excavation equipment was not specific enough to render the owner vicariously liable.

 

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THE STENOGRAPHER DELIBERATELY FAILED TO TRANSCRIBE PORTIONS OF THE TRIAL TESTIMONY, INSTEAD RECORDING “BLAH, BLAH, BLAH,” “OMITTED,” AND “UNTRANSCIBABLE;” THE APPELLATE DIVISION PROPERLY SENT THE MATTER BACK FOR A RECONSTRUCTION HEARING AND THE RECONSTRUCTED TESTIMONY WAS SUFFICIENT TO PROTECT DEFENDANT’S RIGHT TO AN APPEAL (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Wilson, affirming the Appellate Division, determined (1) the Appellate Division, holding the appeal in abeyance, properly sent the matter back for a reconstruction hearing because the seriously flawed trial transcript omitted testimony, and (2) the reconstruction of the transcript was adequate to allow appellate review. Defendant’s conviction was affirmed:

During the trial of Joseph A. Meyers, the primary stenographer failed to capture substantial portions of the proceedings and frequently recorded “blah blah blah,” “blah blah,” “omitted,” “untranscribable” or undecipherable characters instead of the words actually spoken. Those transgressions by the court reporter were first discovered during the pendency of Mr. Meyers’s appeal. The Appellate Division ordered a reconstruction hearing, at which Supreme Court took testimony from the trial judge who heard the case, the attorneys who tried it and court clerks who helped administer it, and also supplemented the record with the extensive notes the judge took during the trial. Although Supreme Court did not, at the conclusion of the reconstruction hearing, identify the contents of the reconstructed record, the Appellate Division affirmed Mr. Meyers’s convictions based on the original trial record as supplemented by the proof established at the reconstruction hearing. The core issues before us are: (1) whether the Appellate Division appropriately ordered a reconstruction hearing instead of summarily reversing Mr. Meyers’s criminal convictions and ordering a new trial; and (2) if the Appellate Division properly required a reconstruction hearing, whether that hearing produced a record sufficient to protect Mr. Meyers’s right to an appeal that comported with due process. Although the transcript prepared by the court reporter at trial is utterly inexcusable, we affirm the Appellate Division’s holding that, on the unique facts of this case, the results of the reconstruction hearing were sufficient to protect Mr. Meyers’s right to an appeal. People v Meyers, 2026 NY Slip Op 03261, CtApp 5-26-26

Practice Point: Consult this opinion for insight into how trial testimony omitted from the transcribed record can be reconstructed such that defendant’s right to an appeal is protected.

 

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THE MURDER TOOK PLACE ON NOVEMBER 20; DEFENDANT WAS ARRESTED FOR POSSESSION OF A WEAPON ON NOVEMBER 21 AND INDICTED ON THAT CHARGE ALONE; SUBSEQUENTLY, BASED ON FORENSIC EVIDENCE (BALLISTIC AND DNA), DEFENDANT WAS SEPARATELY INDICTED FOR MURDER COMMITTED WITH THE SAME WEAPON ON NOVEMBER 20; THE MAJORITY CONCLUDED DEFENDANT WAS PROPERLY INDICTED SEPARATELY BECAUSE THE TWO OFFENSES WERE NOT PART OF “THE SAME CRIMINAL TRANSACTION” (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge dissent, affirming the Appellate Division, determined defendant was properly separately indicted for (1) possession of a weapon and (2) using that weapon to commit murder. Criminal Procedure Law 40.40(2) prohibits separate indictments for joinable offenses. The majority concluded that the possession-of-a-weapon was not part of the “same criminal transaction” as the murder:

Defendant contends that County Court properly dismissed the murder indictment under CPL 40.40 (2) and, as relevant here, argues that the charges were part of the same criminal transaction because there was no break in possession between her use of the weapon in the murder on November 20, 2021 and her possession of the weapon the next day, November 21. The prosecution responds that the passage of time between defendant’s completion of the homicide on November 20 and her subsequent apprehension on November 21 while in possession of the firearm used to commit the offense separates the criminal acts into different criminal incidents, allowing separate prosecution of the possession and the murder charges. The prosecution has the better argument. We conclude that the Appellate Division properly denied defendant’s motion to dismiss and reinstated the murder indictment. People v Harris, 2026 NY Slip Op 03260, CtApp 5-26-26

Practice Point: Here criminal possession of a weapon on November 21 and murder using that same weapon on November 20 were deemed offenses which were not part of the same criminal transaction. Therefore the two offenses were properly indicted separately. The separate indictments did not violate the prohibition of separate indictments for joinable offenses in CPL 40.40(2).

 

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ALTHOUGH PLAINTIFF IS A NEW JERSEY RESIDENT WORKING FOR A NONDOMICILIARY EMPLOYER, SHE WAS REQUIRED TO MAKE REGULAR VISITS TO HER EMPLOYER’S CLIENT IN NEW YORK CITY; PLAINTIFF ALLEGED SHE WAS SEXUALLY HARASSED, IN NEW YORK CITY, BY THE CLIENT’S EMPLOYEE; BECAUSE THE ALLEGED DISCRIMINATORY CONDUCT “HAD AN IMPACT IN NEW YORK,” NEW YORK HAD SUBJECT MATTER JURISDICTION FOR THE HUMAN RIGHTS LAW CAUSES OF ACTION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Shulman, reversing Supreme Court, determined New York had jurisdiction over this employment discrimination action brought under the NYS Human Rights Law and the NYC Human Rights Law. The plaintiff is a New Jersey resident and Ethicon, alleged to be her employer, is a New Jersey corporation. Plaintiff alleged she was assigned to a sales account for Mount Sinai Health System, Inc. which required her to meet regularly with an manager at Mount Sinai in New York City. Plaintiff alleged Ethicon knew that she would be subject to sexual harassment by the Mount Sinai manager. The First Department held that the term “employer” in the Human Rights Law included the nondomiciliary Ethicon because the discriminatory conduct at issue “had an impact in New York.” ​

​… [T]he issue here is how we should interpret the State HRL’s definition of an “employer” as used in the phrase “all employers within the state” for purposes of liability under the State HRL (Executive Law § 292 [5]). The motion court read this definition as requiring an employer to have a physical presence in New York and therefore found both the State HRL and the City HRL inapplicable to Ethicon, “a New Jersey employer of [plaintiff,] a New Jersey resident.”  * * *

… [T]he Court of Appeals in Hoffman v Parade Publs. (15 NY3d 285 [2010]), adopted an impact test for nonresidents who seek the protection of the City HRL and found that test “relatively simple for courts to apply and litigants to follow, leads to predictable results, and confines the protections of the City HRL to those who are meant to be protected—those who work in the city” …. . * * *

Thus, the relevant inquiry is whether the alleged discriminatory conduct had an impact in New York regardless of the residency of the parties. Here, plaintiff, a New Jersey resident, alleges that Ethicon, her nondomiciliary employer, assigned her to service a New York-based account, requiring her regular presence at Mount Sinai’s hospital where the alleged traumatic sexual harassment occurred. Plaintiff further alleges that Ethicon was aware of the harassment and nevertheless required her to continue the assignment because of the account’s importance. At the pleading stage, plaintiff’s allegations, among other discriminatory acts, that her Ethicon manager discouraged her from complaining and “coached her to ‘lean into’ the sexual harassment so Mount Sinai would continue using Ethicon’s services” are more than sufficient to allege sexual discriminatory conduct having a concrete impact on plaintiff within New York to confer subject matter jurisdiction. Plaintiff’s residency outside New York does not preclude application of the State HRL or City HRL where the alleged misconduct occurred in New York City and affected plaintiff while she was working there. Arizzo v Ethicon, Inc., 2026 NY Slip Op 03262, First Dept 5-26-26

Practice Point: Consult this opinion for insight into subject matter jurisdiction under the NYC and NYS Human Rights Law. If a nonresident employee of a nondomiciliary corporation, as part of her job, meets regularly with a client in New York City and is sexually harassed by the client, New York has subject matter jurisdiction over Human Rights Law causes of action.​

 

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MOTHER STABBED HER TWO CHILDREN AND FILED AN INTENT TO PRESENT A PSYCHIATRIC DEFENSE IN THE CRIMINAL TRIAL; THE SURVIVING DAUGHTER AND FATHER SUED DEFENDANT HOSPITAL ALLEGING MOTHER WAS NEGLIGENTLY TREATED SHORTLY BEFORE THE STABBING; MOTHER WAIVED THE PHYSICIAN-PATIENT AND RELATED PRIVILEGES BY FILING THE NOTICE OF INTENT TO PRESENT A PSYCHIATRIC DEFENSE; PLAINTIFFS WERE ENTITLED TO DISCOVERY OF MOTHER’S MEDICAL RECORDS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, reversing Supreme Court, determined non-party mother had waived the physician-patient and related privileges by filing a Criminal Procedure Law (CPL) section 250.10 notice of intent to present a psychiatric defense in the prior criminal trial. Mother had stabbed her two children. The instant personal injury action is brought by the surviving child and her father alleging mother was negligently treated by defendant hospital shortly before the stabbing. The plaintiffs sought discovery of mother’s medical records:

Generally, medical records are protected from disclosure (see CPLR 4504 [physician-patient privilege]; 4507 [psychologist-patient privilege]; Mental Hygiene Law § 33.13[c] [privilege for patient information reported to the Office of Mental Health or the Office for People with Developmental Disabilities]). However, a patient can waive those privileges “either expressly by authorizing the record’s release or implicitly by placing his or her mental condition in issue” … . However, simply denying the allegations in a complaint does not constitute such a waiver … . * * *

… [W]aiver of the physician-patient and related privileges in a criminal action generally carries over to a subsequent civil action, provided the defendant’s mental condition remains at issue … . * * *

We are of the view that … the filing of a CPL 250.10 notice of intent to present a psychiatric defense in the criminal case was sufficient to demonstrate that [mother]  placed her mental condition at issue so as to waive her privilege to confidentiality of her medical, psychiatric, and mental health records maintained by [defendant]. . S.M. v City of New York, 2026 NY Slip Op 03248, First Dept 5-21-26

Practice Point: Filing a notice of intent to present a psychiatric defense in a criminal trial waives the physician-patient and related privileges and the waiver carries over to a subsequent related civil action.

 

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PLAINTIFFS RAISED A QUESTION OF FACT WHETHER THERE WAS A “SPECIAL RELATIONSHIP” BETWEEN PLAINTIFFS AND DEFENDANT INSURANCE BROKERS SUCH THAT PLAINTIFFS COULD REASONABLY RELY ON THE BROKERS TO RENEW A POLICY (FIRST DEPT).

The First Department determined the defendant insurance brokers may be liable in negligence with respect to an audit which led to plaintiffs’ coverage being dropped. Whether the brokers can be held liable depends on whether there was a “special relationship” between the brokers and the plaintiffs upon which plaintiffs could reasonably rely. The plaintiffs raised a question of fact on the existence of a special relationship:

Supreme Court properly denied summary judgment on plaintiffs’ negligence claim because there are issues of fact concerning whether the parties had a special relationship, exceeding that of a traditional broker-client relationship. Plaintiffs testified that, among other things, defendants advised plaintiffs regarding insurance issues, addressed plaintiffs’ audits, and handled insurance policy changes … . Although defendants’ principal testified that the insurance carrier did not contact defendants during the audit that eventually led to plaintiffs’ coverage being dropped, one of the individual plaintiffs testified that he had worked with defendants for more than a decade, used defendants for all six of his businesses, and that he would send everything in his possession relating to insurance to defendants, who would in turn take care of it, including when plaintiffs received audit requests from the insurance carrier. In such a situation where “there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on,” a special relationship may arise thereby “creating an additional duty of advisement” even in the absence of a specific request from the insured to the broker … .

There are also issues of fact concerning which party was responsible for managing the renewal process as defendants’ involvement with previous audits may evince a course of conduct demonstrating that the renewals were in fact defendants’ responsibility … . The record evidence does not disprove as a matter of law that defendants’ inaction in renewing the policy did not proximately cause plaintiffs’ injuries … . S & M Bronx Inc. v Diversified Planning Brokerage LLC, 2026 NY Slip Op 03247, First Dept 5-21-26

Practice Point: Consult this decision for insight into the proof necessary to demonstrate a “special relationship” with insurance brokers such that the brokers can be held liable in negligence for failing to renew a client’s policy.

 

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THE ABSENCE OF BODY-WORN CAMERA FOOTAGE OF THE INCIDENT WAS NEVER EXPLAINED; THE CORRECTION OFFICER’S VERSION OF EVENTS WAS CONTRADICTED BY PETITIONER AND THREE WITNESSES; THEREFORE THE TESTIMONY OF THE CORRECTION OFFICER, WHICH WAS CREDITED BY THE HEARING OFFICER, LACKED SUFFICIENT INDICIA OF RELIABILITY TO SATISFY THE SUBSTANTIAL EVIDENCE STANDARD (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, reversed the finding that petitioner-inmate violated prison disciplinary rules  There was no body-worn camera footage of the incident, and no explanation for its absence. A single corrections officer wrote a report about the incident which was credited by the Hearing Officer. In her report the officer claimed petitioner “threw” a chair onto the floor and was yelling at other prisoners. The petitioner and three prisoners testified that petitioner did not act in anger, was not yelling at other prisoners, and the chair had been knocked or tipped over. The Third Department concluded the evidence was insufficient to support any disciplinary-rule violations:

… [W]here, as here, the record presents competing versions of a discrete event and the determination turns on the acceptance of one account over another, the reliability of the credited testimony must be assessed in context. That context includes the absence of any objective documentation of the incident where there is every reason to believe that such proof should have existed.

At the time of the subject incident, the Department of Corrections and Community Supervision had implemented a body-worn camera policy pursuant to internal directive, reflecting an institutional recognition that recording such encounters is imperative for both safety and transparency … . We need not decide the force of that directive to hold that it informs the nature of proof that may reasonably be expected in incidents of this kind. In the same vein, it must also be observed that, since the subject incident, the Legislature has codified the requirement of body-worn cameras in correctional settings … , thus underscoring the State’s recognition that objective evidence of interactions involving incarcerated individuals is not only critical but readily obtainable … .

Here, no such objective evidence was produced. Importantly, the record is entirely silent as to whether recording devices were being properly utilized and, if not, why not … . In the face of that evidentiary gap, we find that the credited testimony lacks sufficient indicia of reliability to satisfy the substantial evidence standard. We therefore reverse. Matter of McPherson v Hill, 2026 NY Slip Op 03216, Third Dept 5-21-26

Practice Point: In prison disciplinary hearings, the unexplained absence of body-worn camera footage of an incident at which the testifying correction officer was present may call into question the reliability of the correction officer’s testimony.

 

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DEFENDANT’S “EXCEPTIONAL RESPONSE” TO THE “SEX OFFENDER COUNSELING AND TREATMENT PROGRAM” WARRANTED A DOWNWARD DEPARTURE FROM A LEVEL TWO SEX OFFENDER TO A LEVEL ONE SEX OFFENDER (THIRD DEPT). ​

The Third Department, reversing County Court, determined defendant was entitled to a downward departure from a level two sex offender to a level one sex offender based on his successful participation in sex offender treatment:

… [D]efendant submitted the monthly evaluations prepared by his instructor in his Sex Offender Counseling and Treatment Program. In the six monthly evaluations, defendant was awarded 95 out of a maximum of 96 points available, placing him in the “highly motivated” classification for each month, the highest category. Further, the instructor consistently praised defendant’s participation, including comments that defendant “continues to engage positively in program [and] exceed all program standards,” “continues to excel in program” and “continues to meet [and] exceed all program standards.” Given his nearly perfect score and the positive comments from his instructor, we conclude that defendant has demonstrated, by a preponderance of the evidence, an exceptional response to treatment so as to be a basis for a downward departure … . People v Mikalonis, 2026 NY Slip Op 03210, Third Dept 5-21-26

 

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A MISREPRESENTATION OF PRESENT FACT, UNLIKE A MISREPRESENTATION OF FUTURE INTENT TO PERFORM UNDER A CONTRACT, WILL SUPPORT A FRAUDULENT INDUCEMENT CAUSE OF ACTION WHICH IS NOT DUPLICATIVE OF THE RELATED BREACH OF CONTRACT CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the fraudulent inducement cause of action should not have been dismissed as duplicative of the breach of contract cause of action. The fraudulent inducement claim was based on an assertion of present fact. i.e., that the judgment debtor had sufficient capital to close on the property:

We reject defendants’ argument that the fraudulent inducement cause of action is duplicative of the breach of contract cause of action. “[A] misrepresentation of present fact, unlike a misrepresentation of future intent to perform under the contract, is collateral to the contract, even though it may have induced the plaintiff to sign it, and therefore involves a separate breach of duty” … . The alleged representations … that the judgment debtor had sufficient capital to close on the property were representations of present fact, not future intent to perform.

Similarly, we reject defendants’ argument that plaintiff seeks identical damages under the fraudulent inducement cause of action and the breach of contract cause of action. Under the circumstances of this case, at this early procedural stage plaintiff is entitled to maintain the fraudulent inducement claim in the alternative to the breach of contract claim … . This conclusion is especially true because the remedy available to plaintiff for fraudulent inducement under the “out-of-pocket rule” is not lost profits but rather “the actual pecuniary loss sustained as the direct result of the wrong” … . CSN Realty Corp. v Moussaieff, 2026 NY Slip Op 03228, First Deptt 5-21-26

Practice Point: Here the misrepresentation that the judgment debtor had sufficient funds to close was a misrepresentation of present fact which supported a fraudulent inducement cause of action distinct from the breach of contract cause of action.​

 

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THE GENERAL MUNICIPAL LAW CANNOT BE INTERPRETED TO ALLOW THE COMPETITIVE BIDDING PROCESS FOR PUBLIC WORKS TO BE CIRCUMVENTED BY “PIGGYBACKING” A NEW PUBLIC WORKS PROJECT ON A PRIOR PUBLIC WORKS PROJECT AWARDED AFTER COMPETITIVE BIDDING (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Ceresia, determined that the General Municipal Law could not be interpreted to circumvent the competitive bidding process for public works contracts. Here the school district, after a competitive bidding process, had hired Smith Site Development for the replacement of a sewer line and a parking lot at the district’s high school. The district sought to hire Smith again for the heating, ventilation and air conditioning renovations and classroom construction at an elementary school. The district unsuccessfully argued that the General Municipal Law allowed the elementary-school work to be “piggybacked” on the prior sewer-and-parking-lot-contract and thereby avoid the competitive bidding process:

In determining whether General Municipal Law § 103 (16) provides a limited exception to General Municipal Law § 103 (1), or, as the district argues, a broader alternative to that general rule, we begin by observing that while subsection (1) specifically references public works contracts, subsection (16) does not. Although the Legislature could have explicitly identified public works contracts as being subject to the piggybacking provision of subsection (16), it chose not to do so. Instead, by its plain language, subsection (16) permits piggybacking only in a specific set of circumstances that is, when it comes to purchasing certain specified items (“apparatus, materials, equipment or supplies”) or arranging for services related to those specific items (General Municipal Law § 103 [16]). This statutory structure signifies that piggybacking applies only in certain limited circumstances, and we agree with Supreme Court that the omission of language referencing public works contracts from the piggybacking provision suggests that the Legislature did not intend to allow them to be exempt from competitive bidding … . Matter of Daniel J. Lynch, Inc. v Board of Educ. of the Me.-Endwell Cent. Sch. Dist., 2026 NY Slip Op 03209, Third Dept 5-21-26

 

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