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PLAINTIFF FELL 15 TO 20 FEET SUFFERING A FRACTURED RIB AND A FRACTURED FEMUR WHICH REQUIRED AN OPEN REDUCTION AND INTERNAL FIXATION SURGERY; THE VERDICT AWARDING $1.5 MILLION FOR PAST PAIN AND SUFFERING, $2.5 MILLION FOR FUTURE PAIN AND SUFFERING, AND $800,000 FOR FUTURE MEDICAL EXPENSES SHOULD NOT HAVE BEEN SET ASIDE AS EXCESSIVE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion to set aside the jury verdict as excessive should not have been granted:

The plaintiff was injured when, while standing on a beam performing demolition work, a heating, ventilation, and air conditioning duct fell and struck him, causing him to fall approximately 15 to 20 feet to the floor. As a result of the accident, the plaintiff suffered, inter alia, a fractured rib and a fractured femur that required open reduction internal fixation surgery. A metal rod and screws were inserted into the plaintiff’s left leg. The plaintiff later underwent a surgical procedure to remove one of the screws. Furthermore, as a result of the accident, the plaintiff developed problems with both of his knees and his spine, requiring arthroscopic surgery on each knee and a laminotomy. The plaintiff walks with a limp, has limited motion of the hip and knees, and has developed arthritis that will worsen over time. Since the accident, the plaintiff has experienced constant pain despite having been administered numerous injections, including trigger-point injections and transforaminal injections, and having been prescribed several medications, including opioids. Further, the evidence demonstrated that the plaintiff will continue to experience pain and will require future medical treatment, including pain management and, likely, a spinal fusion.

The jury awarded the plaintiff damages in the principal sums of $1,500,000 for past pain and suffering, $2,500,000 for future pain and suffering over a period of 35 years, and $800,000 for future medical expenses over a period of 35 years. Thereafter, the defendants third-party plaintiffs and the third-party defendant separately moved, among other things, pursuant to CPLR 4404(a) to set aside, as excessive, the jury verdict on the issue of damages for past pain and suffering, future pain and suffering, and future medical expenses. In an order dated June 8, 2020, the Supreme Court granted those branches of the separate motions to the extent of directing a new trial on those categories of damages, unless the plaintiff stipulated to reduce the damages awards to the principal sums of $800,000 for past pain and suffering, $1,000,000 for future pain and suffering, and $400,000 for future medical expenses. …

* * * … [C]onsidering the nature and extent of the injuries sustained by the plaintiff, the damages awards for past pain and suffering, future pain and suffering, and future medical expenses, as awarded by the jury, were appropriate and did not deviate materially from what would be reasonable compensation … . Aguilar v Graham Terrace, LLC, 2025 NY Slip Op 02564, Second Dept 4-30-25

Practice Point: A jury’s damages award for past and future pain and suffering and future medical expenses should not be set aside unless the award is demonstrated to “deviate materially from what would be considered reasonable compensation,” not the case here.

 

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FAMILY COURT, AFTER A NONJURY TRIAL, AWARDED SOLE CUSTODY TO FATHER WHO RESIDES IN FLORIDA; THE CHILDREN APPEALED; THE SECOND DEPARTMENT REVERSED AND AWARDED SOLE CUSTODY TO MOTHER, IN PART BECAUSE FAMILY COURT DID NOT CONSIDER THE WISHES OF THE CHILDREN AGES 12 AND 15 (SECOND DEPT).

The Second Department, in an appeal by the children, reversing Family Court’s order issued after a nonjury trial, determined the record did not support the award of sole custody to plaintiff father who resides in Florida and who indicated during the proceedings he was not seeking residential custody of the children. The Second Department awarded sole custody to defendant mother:

“The court’s paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child” … . “In determining an initial petition for child custody, the totality of the circumstances, includes, but is not limited to, (1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent’s relative fitness, including his or her ability to guide the child, provide for the child’s overall well being, and foster the child’s relationship with the noncustodial parent; and (5) the child’s desires” … . “Custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, and therefore, deference is accorded to the trial court’s findings in this regard” … . “However, an appellate court would be seriously remiss if, simply in deference to the finding of a trial judge, it allowed a custody determination to stand where it lacked a sound and substantial basis in the record” … .

Here, the Supreme Court’s determination to award sole legal and residential custody of the children to the plaintiff lacks a sound and substantial basis in the record. The plaintiff, who resides in Florida, represented during the proceedings that he was not seeking residential custody of the children. Moreover, while strict application of the factors relevant to relocation petitions … is not required in the context of an initial custody determination, the record does not indicate the court fully considered the impact of moving the children away from the defendant, and the only home they have known, to live with the plaintiff in Florida … . In addition, under the circumstances presented, the court failed to give sufficient weight to the expressed preference of the children, who were 12 and 15 years old, respectively, as of the conclusion of the trial, to reside with the defendant … . Joseph P. A. v Martha A., 2025 NY Slip Op 02562, Second Dept 4-30-25

Practice Point: Here the appellate court reversed Family Court which had awarded sole custody to father after a nonjury trial. It appears that the main basis for the reversal was Family Court’s failure to consider the wishes of the children who were 12 and 15. The children appealed Family Court’s order.

 

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TENANT WAS PRECLUDED FROM ASSERTING A CLAIM FOR BREACH OF THE COVENANT OF QUIET ENJOYMENT BECAUSE THE TENANT HAD ALREADY STOPPED PAYING RENT WHEN IT VACATED THE PREMISES (FIRST DEPT).

The First Department, reversing Supreme Court, determined the tenant’s claim for breach of the covenant of quiet enjoyment was precluded because the tenant was in default (failure to pay rent) at the time the tenant vacated the premises:

Under … the lease between the landlord and defendant tenant … , the tenant was entitled to “peaceabl[y] and quietly enjoy the premises,” which were in the basement of the landlord’s building, as long as it performed its obligations under the lease, which included the obligation to pay rent. Under … the lease, the tenant waived the provisions of Real Property Law § 227. The premises were shut down in March 2020 under Executive Order 202.7 (9 NYCRR 8.202.7) in response to COVID. At that time, the tenant stopped paying rent. * * *

The tenant is precluded from asserting a claim for breach of the covenant of quiet enjoyment because it was already in default of its obligation to pay rent at the time it vacated the leased premises. The law is clear that, in order for a tenant to assert a claim for breach of the covenant of quiet enjoyment, the tenant must have performed all obligations which are a condition precedent to its right to insist upon the covenant … . When a tenant vacates the premises after defaulting on its obligation to pay rent, it is deprived of its right to insist upon the performance of the covenant of quiet enjoyment … . By the express terms of the lease, the tenant was obligated to pay rent while remaining in possession of the premises as a condition precedent to receiving the benefit of quiet enjoyment of the premises. Since the tenant remained in possession of the premises without paying rent, the tenant has failed to satisfy the condition precedent in the lease and is thereby precluded from claiming a breach of the covenant of quiet enjoyment … . 558 Seventh Ave. Corp. v E&B Barbers Inc., 2025 NY Slip Op 02546, Frist Dept 4-29-25

Practice Point: Here, under the terms of the lease, payment of rent was a condition precedent for the benefit of quiet enjoyment of the premises. Therefore the tenant, who had stopped paying rent at the time the premises were vacated, could not make a claim for breach of the covenant of quiet enjoyment.

 

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THE RAISED SIDEWALK FLAG WAS NOT A “TRIVIAL DEFECT” AS A MATTER OF LAW, YET PLAINTIFF’S ATTORNEYS DID NOT SUBMIT WRITTEN OPPOSITION TO THE SUMMARY JUDGMENT MOTION IN THE SLIP AND FALL CASE WHICH WAS DISMISSED; PLAINTIFF THEREFORE RAISED A QUESTION OF FACT IN THIS LEGAL MALPRACTICE ACTION (FIRST DEPT).

The First Department, reversing Supreme Court in this legal malpractice action, determined there was a question of fact in the underlying slip and fall case which plaintiff’s attorneys could have, but failed to, raise. The raised sidewalk flag which caused plaintiff’s fall was not trivial as a matter of law, as the judge in the slip and fall case ruled. Plaintiff’s attorneys did not submit written opposition to the defendants’ summary judgment in the slip and fall case:

There is no “per se rule that a defect must be of a certain minimum height or depth in order to be actionable” (id. at 510). A “holding of triviality must be based on all the specific facts and circumstances of the case, not size alone” … . Thus, the “issue is generally a jury question because it is a fact-intensive inquiry” … .

Even assuming defendants met their initial burden of proof in showing that plaintiff could not prevail on her negligence claim, plaintiff raised an issue of fact in opposition. Plaintiff estimated that the elevation differential of the defect was an inch and a half or “a couple of inches” at the time of her accident, and the adjacent building’s superintendent testified that the elevation was about half an inch to one inch on the day of the accident. Administrative Code of the City of New York requires remediation for sidewalk flags with a height differential of one-half inch or more (see Administrative Code § 19-152[a][4]). Violation of that code is “not per se non-trivial . . . [but] is one factor to consider when deciding the issue of triviality” … . Barrett v Sacks & Sacks, LLP, 2025 NY Slip Op 02547, First Dept 4-29-25

Practice Point: Plaintiff’s attorneys could have successfully precluded summary judgment in the underlying slip and fall case but failed to submit written opposition to the summary judgment motion. That failure raised a question of fact in the instant legal malpractice action.

 

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PLAINTIFF’S DECEDENT’S LAWSUIT AGAINST DEFENDANT NURSING HOME, WHICH APPARENTLY ALLEGED, AMONG OTHER THINGS, THAT PLAINTIFF’S DECEDENT WAS NEGLIGENTLY EXPOSED TO COVID-19, WAS NOT PRECLUDED BY THE “EMERGENCY OR DISASTER TREATMENT PROTECTION ACT” OR THE “FEDERAL PUBLIC READINESS AND EMERGENCY ACT” (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the wrongful death complaint, which apparently alleged, among other things, decedent was negligently exposed to COVID-19 in defendant nursing home, should not have been dismissed. The Fourth Department held that the defendants submissions did not demonstrate the COVID-19-releated immunity provided by the Emergency or Disaster Treatment Protection Act (EDTPA) (Public Health Law former art 30-D, §§ 3080-3082) and the Federal Public Readiness and Emergency Preparedness Act (PREP Act) (42 USC § 247d-6d) precluded the lawsuit:

… [D]efendants’ submission of the affidavit of Robert G. Hurlbut, the administrator of the facility during the relevant time period, does not conclusively establish that the act or omission constituting defendants’ alleged negligence occurred in the course of arranging for or providing health care services, and it likewise does not conclusively establish that the treatment of decedent was impacted by the health care facility’s or health care professionals’ decisions or activities in response to or resulting from the COVID-19 outbreak … . We therefore conclude that defendants’ submissions did not conclusively establish the three requirements for immunity under the EDTPA … . …

With respect to the PREP Act * * * plaintiff alleged … that defendants failed to properly sterilize equipment to prevent the spread of infection, failed to follow their own infection control practices, and failed to maintain and utilize the proper personal protective equipment as required by federal law. Plaintiff further alleged that decedent suffered a range of injuries from defendants’ negligence, including pressure ulcers, head injuries, and lacerations, in addition to the contraction of COVID-19. Defendants’ submissions failed to establish that decedent’s injuries arose from the use of an approved countermeasure under the PREP Act … . Sweatman v The Hurlbut, 2025 NY Slip Op 02522, Fourth Dept 4-25-25

Practice Point: In the context of a motion to dismiss the complaint, which apparently alleged, among other things, that plaintiff’s decedent was negligently exposed to COVID-19 in defendant nursing home, the immunity provided by the Emergency or Disaster Treatment Protection Act (EDTPA) (Public Health Law former art 30-D, §§ 3080-3082) and the Federal Public Readiness and Emergency Preparedness Act (PREP Act) (42 USC § 247d-6d) was not demonstrated to preclude the lawsuit.

 

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AT THE TIME OF THE COLLISION, THE SHERIFF’S DEPUTY WAS ENGAGED IN AN EMERGENCY OPERATION AND DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, affirming Supreme Court, over a two-justice dissent, determined the police vehicle (driven by Deputy Fong) which collided with plaintiff’s vehicle was engaged in an emergency operation and was not being operated in reckless disregard for the safety of others. The dissenters argued there was a question of fact on the “reckless disregard” issue:​

… [I]t is undisputed that the reckless disregard standard of care applies because Fong was driving an emergency vehicle and was engaged in an emergency operation at the time she proceeded through the red traffic signal (see Vehicle and Traffic Law § 1104 [b] [2]). In addition, defendants established that Fong’s conduct did not rise to a level of reckless disregard for the safety of others. Defendants’ submissions established, in particular, that Fong took several precautions before proceeding into the intersection against the red traffic signal, including bringing her vehicle to a complete stop, looking in all directions, activating her emergency lights, and proceeding slowly into the intersection … . Granath v Monroe County, 2025 NY Slip Op 02521, Fourth Dept 4-25-25

 

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MOTHER’S ALLEGATIONS OF CHANGES IN CIRCUMSTANCES WERE SUFFICIENT TO WARRANT A HEARING ON HER CUSTODY PETITION; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother’s custody petition should not have been summarily dismissed without a hearing:

“A hearing is not automatically required whenever a parent seeks modification of a custody [or visitation] order” … . Rather, “[t]he petitioner must make a sufficient evidentiary showing of a change in circumstances to require a hearing on the issue whether the existing custody [and visitation] order should be modified” … . “In order to survive a motion to dismiss and warrant a hearing, a petition seeking to modify a prior order of custody and visitation must contain factual allegations of a change in circumstances warranting modification to ensure the best interests of the child” … . “When faced with such a motion, ‘the court must give the pleading a liberal construction, accept the facts alleged therein as true, accord the nonmoving party the benefit of every favorable inference, and determine only whether the facts fit within a cognizable legal theory’ ” … .

… The mother alleged that the father had repeatedly and consistently neglected to exercise his right to supervised visitation and had not seen or spoken with the children in over two years … .

… The mother further alleged that, subsequent to entry of the prior order, the older child newly disclosed that, in addition to the previously known sexual abuse to which he and the younger child had been subjected by their paternal uncle at the father’s home, the father too had sexually abused him.

… [T]he mother adequately alleged a change in circumstances based on information—which she received directly from child protective services personnel from the county where the father resides—that the father and his paramour had engaged in conduct that led to the removal of the father’s other children from his care … . Matter of Catherine M.C. v Matthew P.C., 2025 NY Slip Op 02480, Fourth Dept 4-25-25

Practice Point: The most common basis for a Family-Court reversal is the failure to hold a hearing.

 

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THE JUDGE SUMMARILY DENIED DEFENDANT’S REQUEST TO REPRESENT HIMSELF WITHOUT CONDUCTING THE MANDATORY “SEARCHING INQUIRY;” NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, ordering a new trial, determined defendant’s request to proceed pro se was summarily denied without the required “searching inquiry:”

It is well established that a defendant in a criminal case may invoke the right to proceed pro se provided that “(1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues” … . Here, the record establishes that defendant requested to represent himself before the start of trial, stating: “I would like to go pro se, and I would like to bring something to the [c]ourt’s attention if I may, your Honor.” The court initially ignored the request, but defense counsel raised the issue twice more, causing the court to tell defendant: “We are not going to address the issue of pro se. You are here with [defense counsel],” whom the court described as “one of the most experienced defense attorneys in town.” Given that the court “recognized defendant as having unequivocally requested to proceed pro se,” it was then required to conduct a “searching inquiry to ensure that . . . defendant’s waiver [of the right to counsel was] knowing, intelligent, and voluntary” … . People v Taylor, 2025 NY Slip Op 02473, Fourth Dept 4-25-25

Practice Point: Once a judge recognizes a defendant has unequivocally requested to represent himself, the judge is required to make a “searching inquiry” to ensure defendant’s waiver of counsel is knowing, intelligent and voluntary. The failure to conduct the inquiry requires reversal.

 

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HERE THE EVIDENCE WAS PURELY CIRCUMSTANTIAL; DEFENDANT’S REQUEST FOR A CIRCUMSTANTIAL-EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED ON THE MURDER AND ATTEMPTED MURDER CHARGES (FOURTH DEPT). ​

The Fourth Department, ordering a new trial on the murder and attempted murder charges, determined the judge should have given the circumstantial-evidence jury instruction:

“[A] trial court must grant a defendant’s request for a circumstantial evidence charge when the proof of the defendant’s guilt rests solely on circumstantial evidence . . . By contrast, where there is both direct and circumstantial evidence of the defendant’s guilt, such a charge need not be given” … .

The People argue that certain statements made by defendant provided some direct evidence of defendant’s guilt of those charges. A defendant’s “statement[s are] direct evidence only if [they] constitute a relevant admission of guilt” … . Here, we conclude that the statements identified by the People were not admissions of guilt; rather, because they “merely includ[ed] inculpatory acts from which a jury may or may not infer guilt, the statement[s were] circumstantial and not direct evidence” … . The People thus failed to present ” ‘both direct and circumstantial evidence of . . . defendant’s guilt’ ” that would have negated the need for a circumstantial evidence charge … . People v Rodriguez, 2025 NY Slip Op 02454, Fourth Dept 4-25-25

Practice Point: Where the evidence against a defendant is both circumstantial and direct, a request for a circumstantial-evidence jury instruction is properly denied. Where the evidence is purely circumstantial, the request must be granted.​

Practice Point: A defendant’s statements are direct evidence only if they constitute an admission of guilt. Where, as here, the statements include inculpatory acts from which guilt can be inferred the statements constitute circumstantial evidence.

 

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THE “ALLEGEDLY INCAPACITATED PERSON” (AIP) WAS NOT PRESENT FOR THE MENTAL HYGIENE LAW GUARDIANSHIP HEARING; THE AIP’S ATTORNEY CANNOT CONSENT TO THE APPOINTMENT OF A GUARDIAN IF THE AIP IS NOT PRESENT; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the absence of the allegedly incapacitated person (AIP) from the proceeding to appoint a guardian pursuant to the Mental Hygiene Law required remittal:

“Guardianship proceedings, as a drastic intervention in a person’s liberty, must adhere to proper procedural standards” … . Pursuant to Mental Hygiene Law § 81.11, where a petition to have a guardian appointed for an AIP has been filed … , “[a] determination that the appointment of a guardian is necessary for a person alleged to be incapacitated shall be made only after a hearing” … . Any party to the proceeding “shall” have the right to present evidence, call witnesses, cross-examine witnesses and be represented by counsel … .

Most importantly, “[t]he hearing must be conducted in the presence of the person alleged to be incapacitated, either at the courthouse or where the person alleged to be incapacitated resides” … , unless the person is outside the state or “all the information before the court clearly establishes that (i) the person alleged to be incapacitated is completely unable to participate in the hearing or (ii) no meaningful participation will result from the person’s presence at the hearing” … . “There is an ‘overarching value in a court having the opportunity to observe, firsthand, the allegedly incapacitated person’ ” … .

Here, the court did not conduct a hearing in the presence of the AIP. Although the court evaluator informed the court that “[a]ll of the parties here right now agree that the AIP needs a guardian,” it is unclear whether that statement by the court evaluator constitutes an agreement by the AIP’s attorney to the court’s determination to appoint a guardian for all of the AIP’s person and property. Regardless, even if we were to deem this a situation where the AIP’s attorney agreed that the AIP consented to the appointment, “a court should not accept counsel’s representation that the AIP has consented to the appointment of a guardian where the AIP is not present” … . “[T]he court must first determine whether the AIP has the requisite capacity to consent, and must then make a finding of the AIP’s agreement to the terms of the guardianship, on the record” … . Matter of Chang v Billie J.C.-W., 2025 NY Slip Op 02446, Fourth Dept 4-25-25

Practice Point: A Mental Hygiene Law guardianship hearing must be held in the presence of the allegedly incapacitated person (AIP) absent proof the AIP cannot meaningfully participate. The judge should be able to observe the AIP.

Practice Point: The AIP’s attorney cannot consent to the appointment of a guardian in the AIP’s absence.

 

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