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A CONSIDERABLE NUMBER OF DAYS DEVOTED TO MOTION PRACTICE SHOULD NOT HAVE BEEN CHARGED TO THE PEOPLE; DEFENDANT’S 30.30 SPEEDY-TRIAL MOTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s speedy trial (CPL 30.30) motion should have been denied because considerable time-periods should not have been charged to the People:

The court should have denied defendant’s CPL 30.30 motion to dismiss the indictment. The court should not have charged the People for the 98-day period during which codefendant delayed serving a copy of his omnibus motion on the People. This time is excludable as time attributed to “pretrial motions,” including “the period during which such matters are under consideration by the court” (CPL 30.30[4][a] …).

The court likewise should have excluded the 42-day period between the date of its decision on codefendant’s omnibus motion and the date on which the matter was adjourned for the People to file their certificate of compliance (COC) … . The People were entitled to “reasonable time to prepare for hearings and trial after the court’s rulings on [the co]defendant’s omnibus motion” … . People v Page, 2026 NY Slip Op 04823, First Dept 7-30-26

Practice Point: Here days related to defense motion practice and preparation for hearings precipitated by rulings on defense motions should not have been charged to the People in a “speedy trial” analysis.

 

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A STAIRWAY MAY CONSTITUTE A “SAFETY DEVICE” WITHIN THE MEANING OF LABOR LAW 240(1) AND A STAIRWAY NEED NOT BE DEFECTIVE TO TRIGGER LABOR LAW 240(1) LIABILITY; HERE IT WAS ALLEGED THE STAIRWAY WAS INADEQUATELY ILLUMINATED AND WAS OBSTRUCTED BY A CABLE WHICH CAUSED PLAINTIFF TO TRIP AND FALL (FIRST DEPT). ​

The First Department, affirming the denial of defendant’s (RBS’s) motion for summary judgment, over a two justice dissent, determined that a stairway need not be defective to fall under the coverage of Labor Law 240(1). Here plaintiff alleged the stairway was inadequately illuminated and was obstructed with a cable which caused plaintiff to trip and fall. The stairway can constitute a safety device within the meaning of Labor Law 240(1) and the majority concluded the stairway itself need not be defective to trigger Labor Law 240(1) liability:

Questions of fact exist as to whether the staircase constituted a Labor Law § 240(1) safety device … .

… [In] “the First Department, falls from permanent appurtenances which function as the only means of access are . . . entitled to Labor Law § 240(1) protection,” including “stairways . . . utilized . . . in the performance of the plaintiff’s work.” Consistent with this, RBS cites no controlling caselaw holding that Labor Law § 240(1) does not apply to injuries incurred on stairways that are not structurally defective….  … T]he dissent makes an argument … that Labor Law § 240(1) claims can only be made as to injuries incurred on stairways that are structurally defective. The dissent cites three cases to support its claim that Labor Law § 240(1) claims involving stairways have been sustained only when the stairways involved were structurally defective. However, none of these cases sustained a Labor Law § 240(1) claim; rather, they affirmed denials of summary judgment, and in any event, did not turn on the structural soundness of the staircases at issue … . It is improper for us to decide an issue that appellant did not raise and that respondent was not given an opportunity to address … . Mazzurco v Broadway 52nd L.P., 2026 NY Slip Op 04822, First Dept 7-30-26

Practice Point: In the First Department, a stairway may constitute a safety device within the meaning of Labor Law 240(1) and the stairway itself need not be defective to trigger Labor Law 230(1) liability.

Practice Point: An appeal should not be decided on a ground not raised by the appellant.

 

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THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT WHEN PLAINTIFF FAILED TO MEET A DEADLINE FOR A DEPOSITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have, sua sponte, dismissed the complaint when plaintiff failed to meet a deadline for a deposition:

“Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading . . . , where a party refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed” … . “[T]he drastic remedy of striking a pleading . . . pursuant to CPLR 3126 should not be imposed absent a clear showing that the failure to comply with discovery demands or orders was willful and contumacious” … . Further, due process generally requires “notice and an opportunity to be heard before a court may impose such drastic remedies for discovery noncompliance” … .

Here, the plaintiff was not given adequate notice and opportunity to be heard prior to imposition of the drastic sanction of dismissal of the complaint, “including on facts relevant to whether the plaintiff’s noncompliance was willful and contumacious” … . The defendants did not move for sanctions pursuant to CPLR 3126 due to the plaintiff’s failure to appear for his deposition, nor did the Supreme Court make its own motion or include language in any prior order warning that noncompliance would result in sanctions … . Winchcombe v Ridgeline Constr. Corp., 2026 NY Slip Op 04794, Second Dept 7-29-26

Practice Point: The appellate courts do not like sua sponte dismissals of complaints without notice or an opportunity to be heard.

 

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WHERE THE PROPERTY OWNER DIES INTESTATE, AND THE PLAINTIFF IS NOT SEEKING A DEFICIENCY JUDGMENT, THE FORECLOSURE ACTION MAY BE BROUGHT DIRECTLY AGAINST THE HEIRS OF THE PROPERTY OWNER; THE ESTATE IS NOT A NECESSARY PARTY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure action against the heir of the decedent property owner should not have been dismissed. Where the property owner dies intestate, and plaintiff is not seeking a deficiency judgment, the foreclosure action can proceed directly against the heirs of the property owner. The estate is not a necessary party:

… [Where] “a property owner dies intestate, title to real property is automatically vested in his or her distributees” … . “Thus, where a mortgagor/property owner dies intestate and the mortgagee does not seek a deficiency judgment, generally a foreclosure action may be commenced directly against the distributees” … . Here, because the decedent died intestate, and because the plaintiff no longer seeks a deficiency judgment, the decedent’s estate was not a necessary party, and the plaintiff could proceed directly against the distributees of the decedent’s estate … . Deutsche Bank Natl. Trust Co. v Unknown Heirs to the Estate of Jacinto Ortiz, 2026 NY Slip Op 04745, Second Dept 7-29-26

Practice Point: Where the property owner dies intestate, and plaintiff is not seeking a deficiency judgment, the foreclosure action may proceed directly against the distributees, the estate is not a necessary party.

 

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THE REFEREE’S REPORT REFERRED TO UNPRODUCED DOCUMENTS RENDERING IT INADMISSBILE HEARSAY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the referee’s report in this foreclosure action should not have been confirmed. The documents upon which the report was based were not produced, rendering the report inadmissible hearsay:

… [T]he plaintiff’s motion which were to confirm the referee’s report and for a judgment of foreclosure and sale should have been denied. “The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility” … . However, computations based upon a review of unidentified and unproduced business records constitute inadmissible hearsay and lack probative value … .

Here, the referee’s report indicates, among other things, that “[t]he information contained herein was obtained from the books and records of plaintiff pertaining to the defendants’ loan and payment history.” However, the record does not reflect that those books and records were annexed to an affidavit of an another officer of the plaintiff’s former loan servicer. As the defendants contended in opposition to the plaintiff’s motion, inter alia, to confirm the referee’s report and in support of their cross-motion, among other things, pursuant to CPLR 4403 to reject the referee’s report, and as they contend on appeal, the referee’s computations as to the amounts due to the plaintiff for advances of taxes and insurance were based on unidentified and unproduced business records, and therefore, the referee’s assertions in those regards constituted inadmissible hearsay and lacked probative value … . Bank of N.Y. Mellon v Prestia, 2026 NY Slip Op 04735, Second Dept 7-29-26

 

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TO STATE A MERITORIOUS CLAIM AGAINST THE STATE IN THE COURT OF CLAIMS, CLAIMANT NEED NOT MAKE OUT A PRIMA FACIE CASE; IT IS ENOUGH THAT THE CLAIM HAS THE APPEARANCE OF MERIT; HERE CLAIMANT’S APPLICATION FOR PERMISSION TO FILE A LATE CLAIM SHOULD HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing the Court of Claims, determined claimant’s application for permission to file a late claim should have been granted. The Court of Claims found that claimant did not demonstrate a meritorious claim. The Fourth Department explained that a claimant need not make out a prima facie case at this stage. If the claim is not patently groundless, frivolous or legally defective it should be deemed meritorious:

… [W]hile being treated in the inpatient psychiatric unit at Upstate, she was restrained by security officers and nurses because she was engaging in self-harm or had refused medication and injection. According to claimant, security officers escorted her to a seclusion room and forcefully pinned her down, with several security officers lying on top of her while her left arm was underneath her body. Claimant’s medical records confirmed that four security officers and two nurses were involved in the restraining incident. Claimant allegedly screamed out in pain, and a nurse told the security officers to get off of her. Consistent with claimant’s allegations, the medical records establish that, as a result of the incident, claimant suffered a dislocated left elbow, which first required a closed reduction under sedation and placement of a cast and later required surgery under general anesthesia to correct the recurrent instability in her elbow and a complete tear of the ligament complex.

… [T]he evidence presented by claimant in support of the application demonstrates that the security officers and nurses may have caused her injuries, as she alleges, by negligently applying excessive force while attempting to restrain her … . Further, contrary to the State’s assertion, to the extent that Upstate’s account of the incident in the medical records suggests that claimant somehow dislocated her own elbow, that notation created at most a factual issue with respect to causation … . Consequently, on this record, it cannot be said that “the claim raised is patently groundless, frivolous or legally defective” … . … [C]aimant’s submissions on the application are sufficient, at this stage in the proceedings, to demonstrate that there appears to be merit to her claim within the meaning of Court of Claims Act § 10 (6) … . Viola v SUNY Upstate Univ. Hosp., 2026 NY Slip Op 04604, Fourth Dept 7-24-26

Practice Point: In seeking permission to make a late claim in the Court of Claims, claimant need not make out a prima facie case. It is enough that the claim has the appearance of merit, i.e., that it is not patently groundless, frivolous or legally defective.

 

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THE DERIVATIVE NEGLECT FINDING WAS BASED ON A PRIOR FINDING MOTHER NEGLECTED THREE OLDER CHILDREN; BUT THE CONDUCT WHICH WAS THE BASIS OF THE PRIOR NEGLECT FINDING WAS NOT DESCRIBED IN THE MOTION PAPERS; THE BURDEN OF PROOF, THEREFORE, NEVER SHIFTED TO MOTHER AND THE MOTION SHOULD HAVE BEEN DENIED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the burden never shifted to mother in this derivative neglect proceeding. The derivative neglect finding was based upon a prior finding mother neglected three older children. But the order in that case did not describe the conduct that resulted in the “Inadequate guardianship” finding:

… [W]e conclude that the court erred in granting the motion because petitioner’s submissions did not satisfy its initial burden to show that the subject child was derivatively neglected … . To the extent that petitioner relied on the court’s prior order of disposition finding that the mother had neglected the three older children as the basis to support a finding of derivative neglect with respect to the subject child, we note that the prior order merely states that she neglected the older children through “[i]nadequate guardianship, thus placing the children at risk of harm.” Inasmuch as the prior order did not identify what conduct by the mother had been substantiated for purposes of making the “inadequate guardianship” finding with respect to the three older children, petitioner did not establish the egregiousness of that conduct or show that, with respect to the subject child, the potential harmful result of that conduct could be said to reasonably still exist … . In other words, the evidence supplied by petitioner did not establish, as a matter of law, the nature of the mother’s conduct that supported the prior finding of neglect or its surrounding circumstances … . Matter of Ty’Shawn B., 2026 NY Slip Op 04694, Fourth Dept 7-24-26

Practice Point: A motion for summary judgment seeking a derivative neglect finding cannot merely mention a prior “inadequate guardianship” finding regarding mother’s other children with no description of the underlying conduct. The moving papers must demonstrate egregious conduct which is ongoing.

 

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THE STATE’S SNOWPLOW DRIVER WAS NOT DRIVING ON A PLOW ROUTE WHEN HE MADE AN ILLEGAL RIGHT TURN AND STRUCK PLAINTIFF’S CAR; THE VEHICLE AND TRAFFIC LAW 1103(B) “RECKLESS DISREGARD” STANDARD, THEREFORE, DID NOT APPLY; CLAIMANT’S CLAIM SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims, determined the State’s snowplow driver was not engaged in work on the highway when it made an illegal right turn on a city street, striking claimant’s car. Therefore the “reckless disregard” negligence standard in Vehicle and Traffic Law 1103(b) was not applicable. The Fourth Department granted the claim and sent the action back for a trial on damages only:

Here, the evidence at trial established that the snowplow driver’s route consisted of a series of exits on I-190 in Buffalo, including the on-ramps and off-ramps, and that he would routinely travel on city streets, including the street on which the accident occurred, to access the next ramp on his route. Inasmuch as the testimony reflects that the snowplow driver did not have the authority to plow or salt city streets such as the one where the accident occurred, we conclude that, at the time of the accident, he “was not driving on part of his plow route but instead was traveling from one part of his route to another by way of a [municipal] road that he was not responsible for plowing” … .

Inasmuch as the snowplow driver admitted that he was aware that he was not permitted to make a right turn against a red light at the subject intersection, admitted that he was aware that other drivers treated that portion of road as having two northbound lanes, and nonetheless elected to make an illegal right turn on red from the left-hand lane, we conclude that the evidence established that the snowplow driver was negligent … . We further conclude that claimant was not contributorily negligent inasmuch as he was lawfully on the roadway and stopped at a red light when struck … . Bushley v New York State Thruway Auth., 2026 NY Slip Op 04686, Fourth Dept 7-24-26

Practice Point: Here the State’s snowplow driver was not driving on a plow route when he made an illegal right turn and struck plaintiff’s car. The “reckless disregard” standard, which would have applied if the snowplow were engaged in work on a plow route, did not apply. Ordinary negligence is the applicable standard.

 

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THE “NOTICE-OF-A-DANGEROUS-CONDITION” REQUIREMENT FOR A SLIP AND FALL CAUSE OF ACTION BROUGHT BY A POLICE OFFICER PURSUANT TO GENERAL MUNICIPAL LAW 205-E IS IDENTICAL TO THE NOTICE REQUIREMENT IN A COMMON LAW SLIP AND FALL ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the General Municipal Law standard for negligence includes the requirement that the municipal defendant have notice of the dangerous condition. General Municipal Law section 205-e provides police officers with a cause of action for negligence where a well-developed body of law is violated. The question raised by the appeal of the denial of the municipal defendant’s motion for summary judgment is whether the notice requirement in a General Municipal Law 205-e action is the same as at common law. The Fourth Department held that it is: The police officer slipped and fell on icy metal stairs but failed to demonstrate the municipal defendant had notice of the condition … .

[U]nder General Municipal Law § 205-e, a defendant is, in fact, entitled to notice of the dangerous condition at issue before liability may attach. Indeed, courts have made plain that “[n]otice is clearly material to recovery under the statute … . * * *

… [A]ccepting plaintiffs’ contention that notice is not required would unjustifiably expand the duty owed by premises owners to one discrete class of putative plaintiffs beyond any reasonable interpretation contemplated by the language of the statute, existing precedent or established policy. We decline to impose liability without fault upon those legally responsible for premises conditions when police officers are present, especially when the statute was not designed to provide them with greater protections than ordinary citizens. Alternatively stated, the duty owed by landowners to police officers under the statute is not broader than it is for any other class of individuals … . * * *

… [P]laintiffs failed to raise a triable issue of material fact with respect to the issue of notice; indeed, plaintiffs’ opposition to the motion did not address the issue of notice at all … . Plaintiffs also have not contended that the icy condition at issue here was sufficiently recurrent, or was of such a longstane been aware of the need to more promptly remedy it … . Whelan v Buffalo Mun. Hous. Auth.,2026 NY Slip Op 04624, Fourth Dept 7-24-26

 

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IN THE CONTEXT OF A SLIP AND FALL, “FAILURE TO WARN” OF A DANGEROUS CONDITION AND “FAILURE TO MAINTAIN A PREMISES IN A REASONABLY SAFE CONDITION” ARE DISTINCT CAUSES OF ACTION AND A PLAINTIFF MAY PROCEED ON ONE OR BOTH THEORIES; IN THIS “NEGLIGENT MOPPING” “EXCESS WATER ON THE FLOOR” CASE, THE “FAILURE TO WARN” CAUSE OF ACTION WAS PROPERLY DISMISSED, BUT THE “FAILURE TO MAINTAIN THE PREMISES IN A REASONABLY SAFE CONDITION” CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT). ​

​The Fourth Department, reversing (modifying) Supreme Court in this slip and fall case, noted that a “failure to warn” of a dangerous condition, and a “failure to maintain a premises in a reasonably safe condition” are distinct causes of action and a plaintiff may proceed on one or both theories. Here the “failure to warn” cause of action was properly dismissed. But the “failure to maintain the premises in a reasonably safe condition” cause of action should not have been dismissed. It was alleged mopping was negligently done leaving excess water on the floor:

… [D]efendants had the initial burden on their motion of establishing that they did not create the allegedly dangerous condition and that they did not have actual or constructive notice thereof … . We conclude that defendants failed to meet that burden inasmuch as they failed to establish that they did not create the allegedly dangerous condition by negligently mopping the area and leaving excess water on the floor … * * * Failure to warn of an alleged hazard is a separate and distinct theory of liability from the failure to maintain premises in a reasonably safe condition, and a plaintiff may proceed on one or both of those theories … . Brennan v Kandon, LLC, 2026 NY Slip Op 04685, Fourth Dept 7-24-26

Practice Point: In the context of a slip and fall, “failure to warn” and “failure to maintain the premises in a reasonably safe condition” are distinct causes of action and a plaintiff may proceed on one or both.​

 

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