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DEFENDANT, WHO WAS CHARGED WITH FIRST DEGREE ROBBERY, PRESENTED NO EVIDENCE THE BB GUN DISPLAYED DURING THE ROBBERY WAS NOT CAPABLE OF CAUSING DEATH OR SERIOUS INJURY; THEREFORE THE TRIAL JUDGE PROPERLY REFUSED TO INSTRUCT THE JURY ON THE “DISPLAYED-WEAPON-COULD-NOT-CAUSE-DEATH-OR-SERIOUS-INJURY” AFFIRMATIVE DEFENSE; A THREE-JUDGE DISSENT ARGUED THAT, BECAUSE IT WAS UNCONTROVERTED THAT DEFENDANT DISPLAYED A BB GUN, SECOND DEGREE ROBBERY WAS THE ONLY AVAILABLE CHARGE (CT APP).

The Court of Appeals, affirming the Appellate Division on different grounds, in a full-fledged opinion by Judge Troutman, over a three-judge dissent, determined the trial judge properly refused to instruct the jury on the affirmative defense that the weapon displayed by defendant during the robbery was not capable of causing death or serious injury. Defendant had displayed BB gun during the robbery and was charged with first degree robbery. The dissent argued that, because it was uncontroverted that defendant displayed a BB gun, second degree robbery is the only available charge. Penal Law 160.15(4) provides “A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:* * * [d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree … .”:

​​… [T]he court properly denied [defendant’s] request to charge the jury on the affirmative defense. “When a defense declared by statute to be an ‘affirmative defense’ is raised at a trial, the defendant has the burden of establishing such defense by a preponderance of the evidence” (Penal Law § 25.00 [2]). The court must charge the affirmative defense to robbery in the first degree when, viewing the evidence in the light most favorable to the defendant, there is “sufficient evidence for the jury to find by a preponderance of the evidence that the elements of the defense are satisfied, i.e., that the object displayed was not a loaded weapon [readily] capable of producing death or other serious physical injury” … . BB guns are capable of producing injury, including but not limited to protracted impairment of vision … . Whether a particular BB gun is “readily capable” of doing so is not a question that we can decide as a matter of law … .

Here, although defendant made a prima facie showing that the object he displayed during the robbery was a BB gun that the police recovered from his home, he presented no evidence concerning the capabilities of that particular gun. Given the absence of such evidence, “the members of the jury could do no more than speculate that defendant’s gun was not [readily] capable of causing death or other serious physical injury, and thus the court properly denied defendant’s request to submit the issue to them” … . People v Smith, 2025 NY Slip Op 07082, CtApp 12-18-25

Practice Point: When a defendant seeks a jury instruction on an affirmative defense, the defendant has the burden to establish the defense by a preponderance of the evidence. Here the defendant argued the BB gun he displayed during the robbery could not cause death or serious injury and he was therefore entitled to a jury instruction on the “displayed weapon could not cause death or serious injury” affirmative-defense to first degree robbery. But because defendant presented no evidence on the capabilities of the BB gun, the Court of Appeals held the defendant did not meet his burden of proof and the trial judge properly denied the request for the affirmative-defense jury instruction.​

 

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UNDER THE LIEN LAW, THE GENERAL CONTRACTOR IN A FAILED SOLAR ENERGY PROJECT, AS TRUSTEE OF THE SETTLEMENT FUNDS, WAS PROPERLY PRECLUDED FROM USING THE FUNDS TO PAY ITSELF FIRST; THE SUBCONTRACTORS MUST BE PAID FIRST; THERE WAS A TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department, affirming Supreme Court, over a two-justice dissent, in a matter of first impression, determined the subcontractors’ motion to enjoin the general contractor from using settlement funds to pay itself for expenditures in a failed solar-energy project was properly granted. The Lien Law created a trust for the settlement funds and required the general contractor, as trustee, to pay the subcontractors before paying itself:

“Article 3-A of the Lien Law impresses with a trust any funds paid or payable to a contractor ‘under or in connection with a contract for an improvement of real property’ ” ( … Lien Law § 70 [1]). Given this statutory definition, we readily conclude that the settlement funds at issue constitute trust funds under Lien Law article 3-A … . The Court of Appeals has “repeatedly recognized that the primary purpose of [Lien Law] article 3-A . . . is to ensure that those who have directly expended labor and materials to improve real property . . . at the direction of the owner or a general contractor receive payment for the work actually performed” … . With respect to a contractor’s trust, the parties entitled to a beneficial status are expressly enumerated in Lien Law § 71 (2) (a)-(f) … Pursuant to Lien Law § 71 (2) (a), “[t]he trust assets of which a contractor . . . is trustee shall be held and applied for [enumerated] expenditures arising out of the improvement of real property,” including “payment of claims of subcontractors, architects, engineers, surveyors, laborers and materialmen” (Lien Law § 71 [2] [a] … ). The language is mandatory and does not include the “cost[s] of improvement,” which is a term specifically defined to address an owner’s costs (Lien Law § 2 [5]; see Lien §§ 70 [5]; 71 [1] …).  L.C. Whitford Co., Inc. v Babcock & Wilcox Solar Energy, Inc., 2025 NY Slip Op 07063, Third Dept 12-18-25

Practice Point: Under the Lien Law the general contractor here is the trustee of the settlement funds and must use the funds to pay the subcontractors before paying itself.

 

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ALTHOUGH PLAINTIFF MAY NOT HAVE INTENDED THE RELEASE TO APPLY TO A PENDING FALSE ARREST ACTION, THE PENDING ACTION WAS NOT LISTED IN THE RELEASE AS AN EXCLUSION AND IS THEREFORE PRECLUDED (CT APP).

The Court of Appeals determined that, even if plaintiff did not intend to release the city from the second false arrest action when he signed a release for the first false arrest action, the release must be enforced according to its plain language. The release had a section where any actions not intended to be encompassed by the release must be specifically identified and listed. Plaintiff, with counsel present, signed the release without listing the second false arrest action as an exclusion, so the release precluded the second action:

This Court has repeatedly made clear that “[i]f ‘the language of a release is clear and unambiguous, the signing of a release is a “jural act” binding on the parties’ ” … . “As with contracts generally, the courts must look to the language of a release—the words used by the parties—to determine their intent, resorting to extrinsic evidence only when the court concludes as a matter of law that the contract is ambiguous” … , or where such evidence establishes one of the ” ‘traditional bases for setting aside written agreements, namely, duress, illegality, fraud, or mutual mistake’ ” … . With respect to mutual mistake, a “high order of evidence is required” to overcome the ” ‘heavy presumption that a deliberately prepared and executed written instrument [manifests] the true intention of the parties’ ” … .

Here, the City established its prima facie entitlement to summary judgment based on the clear language of the release, and plaintiff failed to raise any triable question of fact in opposition. The City’s intent to secure a release from plaintiff of “any and all” claims is evidenced by the plain text of the document it transmitted for plaintiff’s signature. As the Appellate Division correctly held, there was nothing “surreptitious” about the way the release was drafted or transmitted … . Although plaintiff, who was represented by counsel, could have excluded this action from the release by the simple act of listing it in the space provided for that purpose, he signed the release without doing so, an objective manifestation of assent that is binding upon him notwithstanding any unilateral mistake or subsequent regret on his part … . Smith v City of New York, 2025 NY Slip Op 07081, CtApp 12-18-24

Practice Point: A release is strictly enforced according to its plain language. If a release includes a section where any exclusions from its reach must be listed, and that section is left blank, the release will preclude any other pending action, even where the failure to list a pending action was unintentional.

 

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THE MINISTERIAL EXCEPTION DOES NOT PRECLUDE THIS HOSTILE-WORK-ENVIRONMENT ACTION BY EMPLOYEES OF A PRIVATE CATHOLIC HIGH SCHOOL; THE MINISTERIAL EXCEPTION PRECLUDES ACTIONS AGAINST RELIGIOUS INSTITUTIONS WHICH INTERFERE WITH RELIGIOUS DOCTRINE; THE ALLEGATIONS OF HARASSMENT BY SCHOOL OFFICIALS DO NOT INVOLVE RELIGIOUS DOCTRINE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the-hostile work-environment causes of action by employees of a private Catholic high school should not have been dismissed pursuant to the “ministerial exception” which, in certain circumstances, will preclude employment discrimination actions against a religious institution:

Plaintiffs … were all employed by … a private Catholic school . The case stems from plaintiffs’ allegations that the school’s Principal … regularly subjected them to vulgar, sexist, ageist, racist and homophobic remarks and epithets. Plaintiffs further allege that … the school’s Vice Principal … and … the school’s Dean of Men, regularly repeated [the Principal’s] vile language and assisted in his efforts to discriminate against staff. In addition, plaintiffs allege that … the head of defendant Archdiocese of New York … and the defendant Archdiocese knew about [the Principal’s] conduct but did nothing to stop it.

Plaintiffs’ claims for hostile work environment were improperly dismissed under the ministerial exception, which precludes some employment claims against religious institutions on First Amendment grounds … . Although the ministerial exception was created to protect churches from state interference in their decisions to employ and supervise ministerial employees, it was not intended as a shield from all types of workplace conduct … . * * *

Here, plaintiffs are correct that there is no religious justification for [the Principal’s] appalling conduct, and analyzing their hostile work environment claims would not require the Court to improperly interfere with religious doctrine or defendants’ personnel decisions. Boliak v Reilly, 2025 NY Slip Op 07088, First Dept 12-18-25

Practice Point: Some employment discrimination actions against religious institutions are barred by the ministerial exception. Here the allegations plaintiffs, employees of a private Catholic School, were harassed by school officials did not require a court’s interference with religious doctrine and therefore were not precluded by the ministerial exception.​

 

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A CONTRACT (A MEMORANDUM OF UNDERSTANDING OR “MOU”) WHICH PURPORTED TO BIND CURRENT AND FUTURE TOWN OFFICIALS TO A REZONING REQUEST FOR A REAL ESTATE DEVELOPMENT PROJECT VIOLATED THE “TERM LIMITS DOCTRINE” AND WAS THEREFORE UNENFORCEABLE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a three-judge concurrence, determined that a memorandum of understanding (MOU) which purported to bind current and future municipal officials to plaintiff’s rezoning request for a real estate development project violated the term limits doctrine and was unenforceable:​

“The term limits rule prohibits one municipal body from contractually binding its successors in areas relating to governance unless specifically authorized by statute or charter provisions to do so” … . It recognizes that “[e]lected officials must be free to exercise legislative and governmental powers in accordance with their own discretion and ordinarily may not do so in a manner that limits the same discretionary right of their successors” … . The doctrine thus instructs “that where a contract ‘involves a matter of discretion to be exercised by the [municipal body,] unless the statute conferring power to contract clearly authorizes th[at body] to make a contract extending beyond its own term, no power . . . so to do exists’ ” … . The term limits doctrine reaches only “matters relating to governmental or legislative functions” … and does not apply where the municipality is “acting in its proprietary capacity” … . * * *

… [W]e conclude that by entering into the MOU, the Town Board violated the term limits doctrine by purporting to “limit” a “discretionary right of [its] successors,” rendering the MOU invalid and unenforceable … . Absent an enforceable agreement, plaintiff’s contractual claims fail as a matter of law. Hudson View Park Co. v Town of Fishkill, 2025 NY Slip Op 07080, CtApp 12-18-25

Practice Point: Here an attempt to bind current and future municipal officials to a rezoning request for a real estate development project was deemed unenforceable because it violated the “term limits doctrine.” Consult this opinion for insight into how the “term limits doctrine” is applied.​

 

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PLAINTIFF WAS STANDING ON THE SECOND RUNG FROM THE TOP, STRADDLING THE LADDER, WHEN IT WOBBLED AND FELL; THE NEED TO STAND NEAR THE TOP OF THE LADDER TO DO THE WORK DEMONSTRATES THE LADDER WAS NOT AN ADEQUATE SAFETY DEVICE ENTITLING PLAINTIFF TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; THERE WAS A TWO JUSTICE DISSENT WHICH ARGUED THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S MISUSE OF THE LADDER WAS THE SOLE PROXIIMATE CAUSE OF THE ACCIDENT (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff in this ladder-fall case was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was standing on the second rung from the top of an extendable step ladder, straddling the ladder, when the ladder fell away from the building. The majority concluded the fact that plaintiff had to stand on the second rung from the top and straddle the ladder to do the work, he was not provided with an adequate safety device. The dissent argued there was a question of fact whether plaintiff’s misuse of the ladder was the sole proximate cause of the accident:

Supreme Court erred in finding that plaintiff failed to meet his prima facie burden, as “[w]e have repeatedly held that when a worker injured in a fall was provided with an elevation-related safety device, [here the ladder,] the question of whether that device provided proper protection within the meaning of Labor Law § 240 (1) is ordinarily a question of fact, except in those instances where the unrefuted evidence establishes that the device collapsed, slipped or otherwise failed to perform its function of supporting the worker and his or her materials” … . Accordingly, … an unexplained fall of the ladder while plaintiff was using it to reach an elevated work area, he is entitled to the presumption that the ladder was not good enough to afford proper protection … . Nusbaum v 1455 Wash. Ave. LLC, 2025 NY Slip Op 07066, Third Dept 12-18-25

Practice Point: Here the fact that plaintiff had to stand on the second rung from the top, straddling the ladder, to do the work demonstrated the ladder was not an adequate safety device, entitling plaintiff to summary judgment on the Labor Law 240(1) cause of action.

 

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THE NYC DEPARTMENT OF HOUSING PRESERVATON AND DEVELOPMENT HAD A RATIONAL BASIS FOR FINDING THAT PETITIONER DID NOT USE HIS BROTHER’S APARTMENT AS HIS PRIMARY RESIDENCE FOR ONE YEAR PRIOR TO HIS BROTHER’S DEATH; THEREFORE PETITIONER WAS NOT ENTITLED TO SUCCESSION RIGHTS TO THE MITCHELL-LAMA APARTMENT; THERE WAS AN EXTENSIVE TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over an extensive two-judge dissent, determined the NYC Department of Housing Preservation and Development had a rational basis for finding that petitioner did not use his brother’s apartment as his primary residence for one year prior to his brother’s death and therefore was not entitled to succession rights to the Mitchell-Lama apartment:

The administrative hearing officer found that petitioner failed to establish co-residency during the relevant one-year period. Initially, the hearing officer found petitioner’s claim that the subject apartment had been his primary residence since August 2018 was contradicted by documents addressed to him at a North Miami, Florida address during that timeframe—specifically, a February 2019 letter from the Social Security Administration and bank statements from petitioner’s Wells Fargo account for the period from October 2018 through January 2019. In addition, the hearing officer considered undated documents, documents dated outside of the one-year period and documents that did not include an address but determined such documents did not prove the requisite co-residency. The hearing officer likewise concluded that the statements from 2018 through 2020 for tenant’s bank account, listing petitioner as power of attorney, were not “credible, sufficient and reliable proof” that petitioner resided in the apartment as his primary residence. The hearing officer observed that the only documents that reflected petitioner’s address as the subject apartment during the required co-residency period were the April and May 2019 letters regarding SNAP benefits. Further, the hearing officer noted that petitioner had maintained his connection to Florida, as he had kept his Florida driver’s license throughout the co-residency period [FN2]. Based on these findings, the hearing officer denied the appeal, concluding that petitioner failed to meet the eligibility requirements. The opinion made no mention of petitioner’s failure to submit tax returns. Matter of Mantilla v New York City Dept. of Hous. Preserv. & Dev., 2025 NY Slip Op 07079, CtApp 12-18-25

 

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TO PIERCE THE CORPORATE VEIL THE PLAINTIFF MUST DEMONSTRATE (1) THE OWNERS EXERCISED COMPLETE DOMINATION OF THE CORPORATION WITH RESPECT TO THE TRANSACTION AT ISSUE AND (2) THE DOMINATION WAS USED TO COMMIT A FRAUD OR WRONG AGAINST THE PLAINTIFF; HERE THERE WAS NO EVIDENCE THE TRANSACTION AT ISSUE WAS FRAUDULENT (CT APP).

The Court of Appeals, affirming the Appellate Division, over a three-judge concurrence, determined the complaint in this “pierce the corporate veil” action was properly dismissed because there was no evidence the recapitalization at issue was done to commit a fraud:

From the concurrence:

A court will disregard the corporate form and pierce the corporate veil when there is a showing by plaintiffs that: “(1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff’s injury” … . Because the use of the corporate form to limit liability of owners is a legal and beneficial principle of corporations, those who seek to pierce the corporate veil bear a heavy burden … .

Here, [the] attempts to pierce the corporate veil fail to raise a triable issue on prong two. The … defendants met their initial burden on summary judgment to demonstrate that they did not abuse the privilege of doing business in the corporate form to perpetrate a wrong or injustice, and [plaintiff] failed to raise a triable issue of material fact in opposition. [Plaintiff] points to no evidence in the record that supports its claim that the 2006 recapitalization at issue was fraudulent. Cortlandt St. Recovery Corp. v Bonderman, 2025 NY Slip Op 07078, CtApp 12-18-25

Practice Point: This decision illustrates the two prongs of proof required to pierce the corporate veil: the owners must completely dominate the corporation with respect to the transaction at issue; and the transaction at issue must be fraudulent or wrongful with respect to the plaintiff.

 

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SUBCONTRACTOR DAL HAD ENTERED CONTRACTS FOR THIS RENOVATION PROJECT WITH THE GENERAL CONTRACTOR, JRM, AND THE PROPERTY OWNER, ROCKEFELLER; PLAINTIFF, WHO DID NOT WORK FOR DAL, WITHOUT DAL’S PERMISSION, KNOWING THE LADDER WAS DEFECTIVE, USED A DEFECTIVE LADDER OWNED BY DAL; THE LADDER WOBBLED AND PLAINTIFF FELL; THE COURT OF APPEALS HELD THE INDEMNIFICATION CLAUSES IN DAL’S CONTRACTS WITH JRM AND ROCKEFELLER DID NOT APPLY TO PLAINTIFF’S INJURIES (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a two-judge dissent, determined that DAL, a subcontractor, was not contractually required to indemnify the general contractor, JRM, and the property owner, Rockefeller, for plaintiff’s injuries from a ladder-fall. The plaintiff, Dibrino, a carpenter working for a nonparty subcontractor, Jacobsen, had already completed his measurements using his employer’s A-frame ladder and a scaffold, which he had moved to his next work-area, when he was asked to redo the measurements. Plaintiff, knowing it was defective, used an A-frame ladder owned by DAL when he remeasured. The ladder wobbled, plaintiff fell; a tool on his belt impaled his abdomen. The ruling that DAL was not obligated to indemnify the general contractor (JAM) and the owner (Rockefeller) for plaintiff’s injuries is based on the contractual language:

Mr. Dibrino’s unauthorized use of an unattended ladder (which he knew was not furnished by his employer and knew he was not supposed to use) instead of using the scaffold and ladder supplied by Jacobson that he had used earlier that day in that same spot, to perform work squarely outside the scope of the agreement between DAL and JRM, is not reasonably construed as arising from performance DAL’s work. JRM and Rockefeller’s reading would mean DAL’s contractual duty to indemnify would be triggered by any event that could be traced to DAL through any path—even, for example, had DAL disposed of the defective ladder in a dumpster and Mr. Dibrino retrieved it. Such an expansive reading of these indemnity provisions is implausibly broad, … an indemnification provision “must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed” … . Dibrino v Rockefeller Ctr. N., Inc., 2025 NY Slip Op 07077, CtApp 12-18-25

Practice Point: Consult this opinion for insight into how indemnification clauses in contracts among a subcontractor, the general contractor and the owner should be interpreted under the Labor Law. Here the clauses did not apply to injuries suffered by a worker who (1) did not work for the subcontractor and (2) used the subcontractor’s ladder without the subcontractor’s permission, knowing that the ladder was defective.

 

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AN ARCH-SHAPED BOLLARD (A BARRIER TO PROTECT A TREE FROM VEHICLES USING A PARKING LOT) IS SUBJECT TO THE WRITTEN-NOTICE REQUIREMENT IN THE GENERAL MUNICIPAL LAW; HERE THE BOLLARD, WHICH FELL OVER WHEN A CHILD TRIED TO SWING ON IT, WAS INSTALLED 14 YEARS AGO; BECAUSE THERE WAS NO WRITTEN-NOTICE AND BECAUSE THE DANGEROUS CONDITION WAS NOT IMMEDIATELY APPARENT WHEN THE BOLLARD WAS INSTALLED, THE CITY WAS NOT LIABLE (CT APP). ​

The Court of Appeals, affirming the Appellate Division, determined an arch-shaped bollard (a barrier to protect a tree from damage by vehicles using a parking lot), which fell over when a child attempted to swing on it, was subject to the written-notice requirement in the General Municipal Law. Because the city did not have written notice of the dangerous condition it cannot be held not liable. The Court of Appeals noted that a parking lot is a “highway” within the meaning of the General Municipal Law section 50-e “written notice” requirement:

Prior written notice is not required “where the locality created the defect or hazard through an affirmative act of negligence” which “immediately results in the existence of a dangerous condition” … . The exception is meant to “address[] situations where a hazard was foreseeable, insofar as the municipality created it” as opposed to situations where there is “difficulty in determining, after the passage of time,” whether the municipality was initially negligent … .

Plaintiffs failed to meet their burden raising a triable issue of fact as to whether the City caused or created an immediately dangerous condition through an act of affirmative negligence … . Nor did the affidavit from plaintiffs’ expert create a triable issue of fact as to the City’s affirmative negligence because, among other things, it did not tend to establish that the City left behind an unsafe condition at the time it installed the bollard 14 years prior to the accident. Although the expert opined that the bollard was unsafe from “the moment” it was installed, they failed to explain this conclusory opinion through reliance on industry standards or empirical data, nor did they explain how their “professional experience in construction” supported their conclusion … . Rather, the summary judgment record suggests that, to the extent the installation method created a defect, any such defect resulted from the effects of environmental conditions over time. Gurbanova v City of Ithaca, 2025 NY Slip Op 07076, CtApp 12-18-25

Practice Point: A parking lot is a “highway” for purposes of the General Municipal Law 50-e “written notice” requirement.

Practice Point: A bollard (a post which serves as a vehicle-barrier in a parking lot) is subject to the “highway” “written-notice” requirement in the General Municipal Law.

 

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