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THE INITIAL JURY INSTRUCTION ON THE JUSTIFICATION DEFENSE WAS INCORRECT; ALTHOUGH THE CORRECT INSTRUCTION WAS SUBSEQUENTLY GIVEN, THE INCORRECT INSTRUCTION WAS NEVER WITHDRAWN; CONVICTIONS REVERSED AND NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s convictions on several counts and ordering a new trial, determined that the judge committed reversible error by not withdrawing the original erroneous justification jury instruction. Subsequently giving the correct jury instruction without withdrawing the initial incorrect jury instruction requires reversal:

Supreme Court’s initial jury instruction charging the justified use of ordinary physical force was erroneous under the circumstances. As the People acknowledge on appeal, the only possible justification defense available to the defendant based on the evidence presented at trial would have been a charge of justified use of deadly physical force (Penal Law § 35.15[2] …). Although the court eventually furnished a proper charge on the justified use of deadly physical force to the deliberating jury, it did not withdraw its previous justification instruction, thereby leaving the jury with competing charges on a material issue. Under these circumstances, it is not possible to conclude that the jury rendered its verdict with a complete and accurate understanding of the applicable law. “Inasmuch as it is impossible to determine the basis for the jury’s verdict, there must be a reversal” … . People v Cherry, 2025 NY Slip Op 02930, Second Dept 5-14-25

Practice Point: If a judge gives an incorrect jury instruction, it is not sufficient to subsequently give the correct instruction. The erroneous instruction must be explicitly withdrawn.

 

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PLAINTIFF WAS INJURED WHEN UNSECURED FENCE PANELS FELL ON HIM; HIS INJURIES ARE COVERED UNDER LABOR LAW 240(1) (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff’s injuries from fencing panels which fell over on him were covered by Labor Law 240(1):

Plaintiff was performing asbestos removal work on the roof of a residential building in NYCHA’s Mariners Harbor complex on Staten Island when the wind knocked over three unsecured panels of galvanized steel fencing onto plaintiff, causing his injuries. Each panel measured 8 feet in height and 8 to 10 feet in length. Together the panels had a combined weight of approximately 150 to 225 pounds.

… The fence had been partially dismantled and temporarily moved and stored in the area where plaintiff was working. Because of the reasonable possibility that they might topple onto the workspace, the panels required securing for the purposes of the undertaking … .

… [P]laintiff’s evidence demonstrated that the gravitational force generated by the wind-toppled steel fence panels was significant and a proximate cause of his injuries … . Plaintiff’s work involving asbestos removal fell within the protections of Labor Law § 240(1), as such work was part of a larger project to renovate multiple building rooftops at the Mariners Harbor complex … . Brito v City of New York, 2025 NY Slip Op 02869, First Dept 5-13-25

Practice Point: Here unsecured fence panels toppled onto plaintiff in the workplace. The injuries were due to gravitational force and therefore covered by Labor Law 240(1).

 

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HOLDOVER RENT IN AN AMOUNT THREE TIMES EXISTING RENT CONSTITUTED APPROPRIATE LIQUIDATED DAMAGES, NOT A PENALTY; DEFENDANT, THE SELLER OF THE COOPERATIVE APARTMENT, REQUESTED POSSESSION FOR THIRTY DAYS AFTER THE CLOSING (FIRST DEPT).

The First Department, reversing Supreme Court, determined the holdover rent, which was three times the existing rent, constituted appropriate liquidated damages, not a penalty. Plaintiffs are purchasers of defendant’s cooperative apartment:

Defendant seller, who requested continued possession of the apartment after closing for one month, complains that the holdover rent set in the liquidated damages provision of the post-closing possession agreement is grossly disproportionate because, over the course of 30 days, it amounted to three times the amount of rent set for the initial 30-day period of possession. However, “[w]hether a provision in an agreement is an enforceable liquidation of damages or an unenforceable penalty is a question of law, giving due consideration to the nature of the contract and the circumstances” … . The party “seeking to avoid liquidated damages” bears the burden “to show that the stated liquidated damages are, in fact, a penalty” … .

Plaintiffs’ cross-motion for summary judgment should have been granted. “[L]iquidated damages clauses that permit a landlord to recover between two or three times the amount of the existing rent or license fee in a holdover proceeding are not ‘grossly disproportionate’ to the probable loss and therefore, not a penalty” … . Moreover, defendant does not account for plaintiffs’ payment during the holdover period of the maintenance and assessment, in addition to the mortgage. The agreement further provides that defendant is responsible for plaintiffs’ costs of administering the agreement, among other things, which were unknown at the time the agreement was signed. Thus, “the amount liquidated bears a reasonable proportion to the probable loss and the amount of actual loss is incapable or difficult of precise estimation” … . Sang Min Kim v Bedouet, 2025 NY Slip Op 02875, First Dept 5-13-25

Practice Point: Here holdover rent in an amount three times the existing rent was deemed appropriate liquidated damages, not a penalty.

 

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PLAINTIFF TEACHER FELL WHEN SHE LEANED ON A DEFECTIVE DESK; THE DEFENDANT SCHOOL DISTRICT DID NOT PROVE THAT THE DESK WAS INSPECTED CLOSE IN TIME TO THE FALL; THEREFORE THE SCHOOL DISTRICT DID NOT DEMONSTRATE IT LACKED CONSTRUCTIVE NOTICE OF THE CONDITION OF THE DESK (FIRST DEPT).

The First Department, reversing Supreme Court, determined the defendant city school district was not entitled to summary judgment in this personal injury case. Plaintiff, a teacher, alleged she fell when she leaned on a defective desk. The school district did not demonstrate it lacked constructive notice of the defective desk because it did not present proof that the desk was inspected close in time to plaintiff’s fall:

Plaintiff, a teacher at a school in the Bronx, alleges that she fell when she leaned on a defective desk as she was grading papers in the back of a classroom. Defendants sustained their burden of establishing that they neither created nor had actual notice of the alleged defect by submitting the testimony of the school’s custodian engineer stating that there had been no prior complaints or injuries related to the desk, and that there was no repair record of any desk because the school discarded broken desks and chairs. Plaintiff also testified that she was not aware of the defective desk leg until after her accident, and that none of the students who used the desk ever reported any defect to her …. .

Nevertheless, defendants failed to establish prima facie entitlement to summary judgment dismissing the complaint, as they did not sustain their burden of demonstrating that they lacked constructive notice of the allegedly defective condition. Although defendants relied on a daily logbook recording the custodian engineer’s daily routine for the building, the logbook was not sufficient to show that defendants inspected the classrooms to ensure that they were free from defects … . Furthermore, the custodian engineer testified at his deposition that although he inspected the classrooms every morning, he did so only to make sure that the heat was on. This testimony is insufficient to demonstrate defendants’ lack of constructive notice, as it fails to show that the alleged condition did not exist when the area was last inspected before plaintiff fell … . Mamah v New York City Dept. of Educ., 2025 NY Slip Op 02877, First Dept 5-13-25

Practice Point: Another example of how problematic proof of a negative, i.e., proof of a lack of constructive notice of a dangerous condition, can be.

 

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DEFENDANT’S STEPMOTHER COULD NOT CONSENT TO THE SEARCH OF DEFENDANT’S BACKPACK, WHICH WAS IN THE STEPMOTHER’S APARTMENT, BECAUSE THE POLICE KNEW THE BACKPACK BELONGED TO DEFENDANT; AN APPELLATE COURT DOES NOT HAVE JURISDICTION TO AFFIRM A LOWER COURT RULING ON A GROUND NOT RULED ON BY THE LOWER COURT (FIRST DEPT).

The First Department, reversing Supreme Court and dismissing the indictment, determined defendant’s motion to suppress a firearm seized from a backpack should have been granted. The police knew the backpack, which was in his stepmother’s apartment, belonged to the defendant. Therefore defendant’s stepmother could not consent to the search. That First Department noted that the arguments raised by the People for the first time on appeal (defendant had abandoned the backpack and the emergency exception to the warrant requirement applied) could not be considered because the lower court did not rule on them (a prerequisite for appellate jurisdiction):

Supreme Court incorrectly denied defendant’s motion to suppress physical evidence recovered from defendant’s bag based on his stepmother’s consent to search her apartment … . The testimony at the hearing was explicit that the officer conducting the search knew that the bag belonged to defendant and not defendant’s stepmother before he picked it up and felt what he believed to be a firearm inside. Therefore, she did not “possess[] common authority over . . . [the] effects sought to be inspected”—here, defendant’s backpack—and could not consent to a search of it … .

While the People argue, in the alternative, that defendant was trespassing and abandoned the bag when he left it in the apartment to surrender himself to the police, they did not advance this argument before the suppression court, and they are foreclosed from doing so now … . The same is true of their argument that search of the bag was permissible under the emergency exception to the warrant requirement … . Furthermore, the hearing court did not rule on these issues in denying suppression, “and therefore did not rule adversely against defendant on this point” … . Thus, this Court “lacks jurisdiction to affirm the denial of defendant’s motion to suppress” the firearm on this alternative ground … . People v Gonzalez, 2025 NY Slip Op 02883, First Dept 5-13-25

Practice Point: Here defendant’s backpack was in defendant’s stepmother’s apartment. The police knew the backpack belonged to defendant. Therefore defendant’s stepmother could not consent to the search of the back pack.​

Practice Point: Here the People sought to affirm the lower court’s denial of the suppression motion on grounds which where not raised or ruled upon by the motion court. The appellate court does not have jurisdiction to affirm on a ground not ruled upon by the lower court.

 

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PLAINTIFF’S TRANSLATED AFFIDAVIT WAS NOT ACCOMPANIED BY THE TRANSLATOR’S AFFIDAVIT AND WAS THEREFORE INADMISSIBLE; THE ROADWAY WHERE THE COLLISION OCCURRED WAS NOT DIVIDED INTO TWO OR MORE CLEARLY MARKED LANES; THEREFORE THE “UNSAFE LANE CHANGE” STATUTE (VEHICLE AND TRAFFIC LAW 1128(A)) DID NOT APPLY (FIRST DEPT).

The First Department, reversing Supreme Court, determined summary judgment should not have been awarded to plaintiff in this traffic accident case. Plaintiff submitted his affidavit which had been translated but did not submit an affidavit from the translator attesting to the translator’s qualifications and the accuracy of plaintiff’s affidavit. In addition, the roadway where the accident occurred was not divided into two or more clearly marked lanes. Therefore the unsafe-lane-change provision of the Vehicle and Traffic Law did not apply to the facts:

In support of his motion for summary judgment, plaintiff submitted his translated affidavit and dashcam footage from defendants’ vehicle. He argued that defendant driver made an unsafe lane change in violation of Vehicle and Traffic Law § 1128(a), which provides that “[w]henever any roadway has been divided into two or more clearly marked lanes for traffic . . . [a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”

Plaintiff failed to demonstrate his entitlement to summary judgment. His affidavit, which was not accompanied by an affidavit from a translator attesting to the translator’s qualifications and the accuracy of the affidavit, does not comply with CPLR 2101(b) and is therefore inadmissible … . Even if the affidavit could be considered, the dashcam video does not “conclusively establish” that defendant driver violated Vehicle and Traffic Law § 1128(a) or eliminate issues of fact as to how the accident occurred … .

The dashcam video shows that Zerega Avenue was not divided into lanes in the southbound direction, and that neither vehicle was driving within a “clearly marked” lane of traffic when plaintiff’s vehicle drove up on the right side of defendants’ tractor-trailer. Moreover, the dashcam footage does not establish that defendant driver caused the accident by moving into plaintiff’s lane of traffic when it was not safe to do so. Richards v Walls, 2025 NY Slip Op 02889, First Dept 5-13-25

Practice Point: Where an affidavit submitted to support a summary judgment motion has been translated, it is not admissible unless it is accompanied by the translator’s affidavit attesting the the translator’s qualifications and the accuracy of the translation.

Practice Point: The unsafe-lane-change statute, Vehicle and Traffic Law 1128(a), does not apply unless there are two or more clearly marked lanes of travel.

 

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THE CRITERIA FOR JUDICIAL ESTOPPEL WERE NOT MET HERE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, over a dissent, determined plaintiff was not precluded by judicial estoppel from seeking attorney’s fees deemed uncollectible in a bankruptcy proceeding:

Supreme Court incorrectly dismissed the complaint on the ground that judicial estoppel bars plaintiff from seeking attorneys’ fees that were deemed uncollectible in a bankruptcy proceeding. Judicial estoppel applies where it is shown that a debtor omitted or concealed the existence of an asset and later brought suit to collect on that asset … . Here, the court made no such findings, and in fact assumed that plaintiff had not misled the bankruptcy trustee. Nor does the record establish that plaintiff obtained a benefit in the bankruptcy proceeding by taking one position in that proceeding and then assuming a contrary position in this action “simply because [his] interest changed” … . We respectfully disagree with our dissenting colleague that the record establishes that plaintiff unequivocally adopted a conflicting legal position to obtain a bankruptcy discharge. Bohn v Tekulsky, 2025 NY Slip Op 02848, First Dept 5-8-25

Practice Point: In the context of a bankruptcy proceeding, the doctrine of judicial estoppel precludes a debtor from concealing the existence of an asset and subsequently bringing suit to collect on that asset. Although there was a dissent, the majority concluded plaintiff had not misled the bankruptcy court and therefore judicial estoppel did not apply.

 

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PLAINTIFF’S OWN DEPOSITION TESTIMONY THAT HE CLEANED THE AREA WHERE HE STEPPED ON A NAIL PROVED DEFENDANT DID NOT NOT HAVE CONSTRUCTIVE NOTICE OF THE PRESENCE OF THE NAIL; THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendant demonstrated it did not have constructive notice of the nail plaintiff stepped on requiring dismissal of the Labor Law 200 and common-law negligence causes of action. The twist here is plaintiff’s own deposition testimony that he had cleaned the area proved defendant’s lack of constructive notice:

Plaintiff expressly based his Labor Law § 200 and common-law negligence claims on a theory that he was injured when he stepped on a nail and that his injuries therefore arose from the condition of the workplace. Thus, defendant was required to establish prima facie that it neither caused or created the dangerous condition nor had actual or constructive notice of it … . Defendant sustained that burden by submitting plaintiff’s deposition testimony that he had swept the area before his lunch break, that everything was where he had left it and the floor was still clean when he returned from his lunch break, and that he never noticed the nail before the accident, which occurred after plaintiff’s lunch break … . Zyskowski v Chelsea-Warren Corp., 2025 NY Slip Op 02860, First Dept 5-8-25

Practice Point: Proof the area where plaintiff stepped on a nail was cleaned and inspected shortly before the injury demonstrated defendant did not have constructive notice of the presence of the nail, requiring dismissal of the Labor Law 200 and common-law negligence causes of action. The facts here are unusual in that it was plaintiff’s own testimony that he cleaned and inspected the area shortly before he stepped on the nail and did not notice the nail which proved defendant lacked constructive notice.

 

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DEFENDANT WAS ENTITLED TO THE ASSIGNMENT OF NEW COUNSEL BASED UPON COUNSEL’S REMARK THAT DEFENDANT’S REQUEST TO WITHDRAW HIS PLEA WAS UNWARRANTED; THE JUDGE SHOULD HAVE CONDUCTED AN INQUIRY ABOUT DEFENDANT’S REQUEST FOR SUBSTITUTE COUNSEL AND HIS REQUEST TO WITHDRAW HIS PLEA; MATTER REMITTED FOR ASSIGNMENT OF NEW COUNSEL AND A SUFFICIENT INQUIRY BY THE JUDGE (THIRD DEPT).

The Third Department, over a dissent, determined defendant’s appeal waiver was invalid, defendant demonstrated a conflict of interest on assigned counsel’s part, and the judge did not conduct a proper inquiry about defendant’s requests for new counsel and to withdraw his guilty plea. The Third Department vacated defendant’s sentence, not the conviction or plea, and remitted the matter for the assignment of new counsel and an inquiry about defendant’s request for substitute counsel and his request to withdraw his plea:

At sentencing, the Conflict Defender explained that she had “numerous phone conversations” with defendant about the grounds for his motion — namely, that assigned counsel’s communication of the People’s plea offer amounted to coercion; that defendant’s learning disability had prevented him from comprehending the consequences of his plea; and that the Conflict Defender was herself conflicted out of representing defendant. Based on her conversations with defendant, the Conflict Defender stated to County Court, “I don’t believe there is anything that warranted [defendant] withdrawing a plea, so I didn’t file a motion” … . “While apparently inadvertent, counsel’s remark . . . affirmatively undermined arguments her client wished the court to review, thereby depriving defendant of effective assistance of counsel” … , and the court should have relieved the Conflict Defender and assigned new counsel to represent defendant on the motion … .

We also agree with defendant that the allegations of assigned counsel’s ineffectiveness were sufficiently serious and factually specific to trigger County Court’s duty to consider his request for substitute counsel … . An indigent defendant’s right to court-appointed representation “does not encompass a right to appointment of successive lawyers at defendant’s option” … . “Rather, a defendant may be entitled to new counsel only upon showing good cause for a substitution, such as a conflict of interest or other irreconcilable conflict with counsel” … . * * *

In addition to alleging that assigned counsel coerced him into pleading guilty, defendant’s letters to County Court asserted that assigned counsel failed to visit him in jail or discuss his case with him; dodged his phone calls on specific dates; sent other attorneys to represent defendant who did not seem to be knowledgeable about the case; intended to oppose any motion defendant made to substitute counsel; and told defendant that his only other options for representation were to hire private counsel or represent himself. Further, defendant indicated that assigned counsel misadvised defendant about his sentencing exposure in a prior case, resulting in an appeal from that conviction on the ground of assigned counsel’s ineffectiveness. Defendant also alleged that assigned counsel was not relaying information or following his instructions in representing him in a separate, contemporaneous criminal action against him. Reading defendant’s allegations of ineffectiveness in the context of defendant’s purported history with assigned counsel, defendant’s complaints set out a plausible claim that the trust and communication between him and assigned counsel had broken down irretrievably … . Faced with these complaints, the court was required to “make at least a minimal inquiry, and discern meritorious complaints from disingenuous applications by inquiring as to the nature of the disagreement or its potential for resolution” … . People v Ubrich, 2025 NY Slip Op 02824, Third Dept 5-8-25

Practice Point: Here defense counsel’s remark that defendant’s request to withdraw his plea was unwarranted demonstrated a conflict of interest requiring the assignment of new counsel.

Practice Point: Here defendant raised serious issues about assigned counsel’s representation requiring the judge to consider his request for substitute counsel.

Practice Point: Here defendant raised serious issues in support of his request to withdraw his guilty plea which required an inquiry by the judge.

 

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